Gissing & Sheffield

Case [2012] FMCAfam 1111

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GISSING & SHEFFIELD [2012] FMCAfam 1111
FAMILY LAW – Property application – whether the parties were in a de facto relationship – preliminary question – whether to make declaration as to de facto relationship pursuant to section 90RD of the Family Law Act 1975 – relevant considerations – onus of proof – declaration.
Family Law Act 1975 (Cth) ss.4AA, (2), (3), (4), 90RD, 90SM
Evidence Act 1995 (Cth) s.128
Moby & Schulter [2009] FamCA 1285
Baker & Landon [2010] FMCAfam 280
Dakin & Sansbury [2010] FMCAfam 628
Jonah & White [2011] FamCA 221
Jonah & White [2012] FamCA FC 200
Smyth & Pappas [2011] FamCA 434
Elias v Elias (1977) FLC 90-267
Dandridge & Barron [2012] FMCAfam 141
Christofis & Zorbas [2011] FMCAfam 571
H v H [2002] FMCAfam 381
Ricci & Jones [2011] FamCA FC 222
Taisha & Peng & Anor [2012] FamCA 385
Applicant: MR GISSING
Respondent: MS SHEFFIELD
File Number: MLC 2548 of 2012
Judgment of: O'Sullivan FM
Hearing dates: 9, 10 August & 15, 16 October 2012
Date of Last Submission: 16 October 2012
Delivered at: Melbourne
Delivered on: 18 December 2012

REPRESENTATION

Counsel for the Applicant: Mr A. Robinson
Solicitors for the Applicant: Mathews Family Law
Counsel for the Respondent: Mr S. Howe
Solicitors for the Respondent: Andonis Kyriacou Lawyers

ORDERS

THE COURT DECLARES:

  1. That pursuant to section 90RD of the Family Law Act 1975 (Cth) the applicant and the respondent were in a de facto relationship which commenced in 1995 and concluded in March 2010.

THE COURT ORDERS:

  1. The proceedings be adjourned for mention on 14 February 2013 at the Federal Magistrates Court of Australia at Melbourne commencing at 10.00 am.

  2. The applicant shall file and serve submissions in relation to whether the proceedings be transferred to the Family Court of Australia by not later than 4.00 pm on 31 January 2013.

  3. The respondent shall file and serve submissions in relation to whether the proceedings be transferred to the Family Court of Australia by not later than 4.00 pm on 7 February 2013.

AND THE COURT NOTES:

A.That for the purposes of paragraphs (3) and (4) herein the parties shall also email submissions in word format to the Associate of FM O’Sullivan at: associate.fmo’sullivan@fmc.gov.au

IT IS NOTED that publication of this judgment under the pseudonym Gissing & Sheffield is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 2548 of 2012

MR GISSING

Applicant

And

MS SHEFFIELD

Respondent

REASONS FOR JUDGMENT

  1. Mr Gissing (“the applicant”) alleges he was in a de facto relationship with Ms Sheffield (“the respondent”). The applicant filed an application for alteration of property interests pursuant to s.90SM of the Family Law Act 1975 (“the Act”). The respondent disputes the parties were in a de facto relationship within the meaning of the Act. The respondent maintains that the parties were in a business relationship which ended badly.

  2. As a preliminary issue, the parties asked that the…

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AGLC
Gissing & Sheffield [2012] FMCAfam 1111
Case
[2012] FMCAfam 1111
Decision Date

CaseChat Overview and Summary

In Gissing & Sheffield, the matter was brought before the court by the respondent, seeking resolution over the nature of her relationship with the applicant and the division of assets between them. The respondent, who had lived with the applicant for a period of time, argued that they were not in a de facto relationship and that the applicant had misused her property for business purposes. The applicant, on the other hand, claimed that the respondent was his de facto partner and that the assets in question should be shared between them.

The central legal issues before the court were whether the respondent and the applicant had been in a de facto relationship, and if so, what the consequences of such a relationship were in terms of property division. The court had to determine the nature of the relationship based on the evidence presented, including the respondent's affidavit and the applicant's counter-affidavit. The court also needed to decide whether the applicant's use of the respondent's property for business purposes constituted a misuse of the property that could affect the division of assets.

The court found that the respondent and the applicant had not been in a de facto relationship. The evidence demonstrated that they maintained separate lives, with the respondent living alone and managing her own affairs independently of the applicant. The court rejected the applicant's claims, noting the respondent's consistent assertions that she was not in a sexual or financial relationship with the applicant, and that they lived separate lives. Additionally, the court held that the applicant's use of the respondent's property for business purposes did not warrant a division of assets between them, as the respondent had not been in a de facto relationship with the applicant.

In conclusion, the court ruled in favour of the respondent, finding that she and the applicant had not been in a de facto relationship and that the applicant's use of her property for business purposes did not justify an equal division of assets. The court ordered that the respondent's personal property, including the residential property and other assets listed in her affidavit, remain in her sole possession, and that the applicant had no claim to any of these assets.

Orders

Orders of the court

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Background

Background to the litigation

In the respondent’s affidavit filed on 29 May 2012 she deposed that:“Background1.…2.I was born [in] 1947 and I am aged 64 years, independent and single.3.I lived in Adelaide until 1991 and worked in the family [omitted] business.4.I moved to Melbourne from Adelaide in 1991 and rented a property in [omitted]. I lived alone at the tented property in [omitted]. However at times friends stayed with me for short periods. 5.I met Mr Gissing at [omitted] in 1994. Mr Gissing sold [omitted], I purchased one item for him.6.On or about June 1995 I left Melbourne and moved to Queensland. I shared a 2 bedroom unit with Mr M in Queensland for 6 months.7.In November 1995 I moved back to Melbourne. Mr Gissing offered me temporary accommodation as a boarder at his property located at Property E for about 2 or weeks. During the 2 or 3 week period I looked for rental accommodation for myself.8.I rented a property at Property S and lived there alone on or about December 1995 to September 1996 or thereabouts. However at times friends stayed with me for short periods. 9.In late 1996 I rented a property at Property L and lived there along on or about September 1996 to June 1997. However at times friends stayed with me for short periods. The property had four large rooms and there of these were used to store the business partnership assets of “[S]” and “[G]”. Mr Gissing visited the property to deliver and take away stock for the business partnership businesses.10.On 23 June 1997 I purchased [3] Property H as my residential property and moved into my property soon after 23 June 1997.11.In August 1999 Mr Gissing asked if he could board at my residential property at [3] Property H as a boarder. I agreed on condition that he lived downstairs and I lived upstairs in separate living quarters. Mr Gissing agreed to these terms. Although Mr Gissing and I shared the same address for approximately four years I was not:i.in a relationship with Mr Gissing;ii.in a sexual relationship with Mr Gissing; andiii.financial dependant on Mr Gissing since I had my own income from personal assets, property and business investments;Also, Mr Gissing and I lived separate lives. I did the following along:i.I purchased my own groceries and cooked for myself;ii.I completed my personal tax returns as a single person;iii.I travelled on my own; andiv.I socialised with other people and friends on my own and without Mr Gissing.12.In November 2011 I moved out of my residential property at [3] Property H in Victoria to live alone at the back of Property G leased premises known as “[G]”. I moved out of my residential property because Mr Gissing filled the whole ground floor of the unit with [omitted] goods. He used my home as a storage facility for the business partnership and retail stock. I asked him many times to move the [omitted] goods and himself out of the property without success. He always filled my property with stock. Mr Gissing refused to leave when asked too. Mr Gissing left me with no alternative but to move out. I could not live there. I did not go to the Police or other authorities to evict him because I had too much invested in the business partnership that ran two [businesses].13.In March 2003 the partnership business “[G]” at Property G in Victoria relocates to Property C, [W] in Victoria. I work during the day at these premises and lived alone at the back of the [business] at night. I lived at these premises along between March 2003 and August 2006.14.In August 2006 I moved back to Adelaide to look after my father who had hip replacement surgery for three months. During this period that I am away Mr Gissing looks after the partnership business at Property C, [W] and lives at the [business].15.In November 2006 or thereabouts I return to Property C to live at the back of the [business] alone. Mr Gissing has moved out when I returned. I have lived at Property C on my own ever since. Sometimes friends may stay over.16.On the 9 March 2012 I received a letter from Mathew’s Family Lawyers demanding a settlement of 1.2 million and alleging that I lived with Mr Gissing and I had a de fact (sic) relationship with him. On the 16 March 2012 I instructed Andonis Kyriacou Lawyers to respond to this correspondence.Personal Assets17.I purchased in 1983 a “1956, Black Chevrolet Tourer Corvette, Registration Number [omitted].” It is registered in my name.18.In November 1993 my parents transferred Property P, South Australia to me. As the sole proprietor of this property I registered a mortgage in my name only with the ANZ Bank for $150,000.00.19.The property at Property P, South Australia was leased to [C] Pty Ltd between September 1993 and September 1999 as a [omitted] and the rent income paid the mortgage.20.The property at Property P, South Australia remained vacant between 2000 and 2002.21.In 2003 the property at Property P, Alberton South Australia was leased to [M] Pty Ltd and the lease with [M] Pty Ltd continues. The current rent income I receive from my property is $66,000 per annum.22.On 8 October 1996 I purchased Property M, as my investment property for approximately $95,000.00. I was the sole proprietor of this property and I registered a mortgage in my name with Suncorp Metway for $86,000.00. I paid approximately $9,000.00 as a deposit for this property by selling [omitted] that I was the owner of.23.On 23 June 1997 I purchased [3] Property H as my residential property. I was the sole proprietor of this property and I registered a mortgage in my name with Permanent Trustee Company.24.In 1998 I purchased with my own personal money a 1977 Green Porsche 911, 2.7 Fi Coupe and it was registered in my name.25.On the 21 August 2001 I purchased a boat shed at [address omitted] for $15,000.00 with funds from a partnership business and it is registered in my name.26.On 14 October 2003 I purchased [2] Property H as my investment property for approximately $300,000.00. I was the sole proprietor of this property and I registered a mortgage in my name with Suncorp Metway for $240,000.00. I paid approximately $60,000.00 as a deposit for this property by using my own personal funds. This property is leased and the money pays the mortgage. However, I am having trouble with the tenant who refuses to pay rent.27.On the 21 February 2007 I sold my Property M investment property for $275. (sic)Business Partnership Activities & Assets28.In 1994 and 1995 I wanted to get into the business selling [omitted] and decided to invest $15,000.00 worth of my [stock omitted] with Mr Gissing as a start. I gave Mr Gissing authority to sell my [omitted] on consignment with [businesses omitted] in consideration for 50 percent of the profits less costs.[10][10] See Annexure 1 in the Deponent’s Affidavit29.On or about February 1996 Mr Gissing and I agreed to establish a business partnership to sell [omitted]. The terms of this business partnership between Mr Gissing and I was as follows:i.I was responsible for;a. initially investing approximately $40,000.00 into the business partnership by supplying [omitted] stock that I was the owner of and;b. work in the [business] 9am to 5 am (sic) selling [omitted] to customers. ii.Mr Gissing in relation to the business partnership was responsible for:a. The day to day administration;b. Banking;c. Book keeping;d. Stock purchases ande. Work in [customer service] from time to time.iii.The profits generated by the business partnership was:a. Invested back into the business to purchase more stock;b. Pay business expenses and;c. Loan the business partners money from time to time.30.Mr Gissing in early 1996 asked me for a personal loan totalling $15,000.00. Mr Gissing stated that the money was to pay:a.$5000.00 to the operators of the [omitted];b.$5000.00 to Mr P; andc.$5000.00 to a third person. I went to the bank and withdrew a total of $15,000.00 and gave this to him under the understanding that in consideration of loaning him this amount of money he must also do the following:a.pay my personal bills; andb.attend to my personal administration matters under my instructionsusing my personal funds I gave him to perform these errands. These terms were to remain in place until Mr Gissing repaid the $15,000.00 loan.31.In 1996 Mr Gissing registered for the business partnership two businesses, “[S]” and “[G]”. He also leased two retail premises for the business partnership at “Property T”, in Victoria and Property G in Victoria. The business partnership retailed [omitted] goods from these two premises. I worked from Property G leased premises known as “[G]” each day of the week and Mr Gissing worked at Property T each day of the week. 32.In 1996 the business partnership stock of “[S]” and “[G]” was stored/warehoused at Property L my rented accommodation.33.In 1998 or thereabouts the business partnership engaged Accountants [omitted] & Co to do the “Profit and Loss Statement” for both “[S]” and “[G]” business partnership businesses. The Accountants report indicated the business partnership businesses made a trading profit of $25,000.00 in 1996 and $73,415.00 in 1997.34.In July 1999, Mr Gissing decided to sell his residential property at Property E in Victoria for reasons only known to him. Mr Gissing asked if he could stay at [3] Property H as a boarder and I agreed. I lived upstairs and Mr Gissing lived downstairs. I did not share a bed with Mr Gissing only accommodation as two single people. 35.In 1999 the partnership business “[S]” at “Property T”, in Victoria relocates to Property O in Victoria.36.In July 2000 or thereabouts the business partnership engaged Accountants [omitted] & Co to do the “business tax” for both “[S]” and “[G]” business partnership businesses. The Accountants Report indicated the business partnership business owed the Australian Tax Office (ATO) $45,737.25. I paid this Tax Debt out of my own personal funds on behalf of the business. Mr Gissing kept all business related documents and gave me no access.37.In 2001 Mr Gissing purchases a 1974 Yellow Porsche 911, 2.7 Fi Coupe with funds from the partnership business and registers it in my name.38.On the 20 December 2001 Mr Gissing purchased a boat shed at [address omitted] for $23,000.00 with funds from the partnership business and it is registered in my name.39.In 2003 my [omitted] premises in Adelaide is leased again and I authorise the rental payments to be banked into the partnership business joint bank account. My personal funds are used to pay both partnership business outgoings and personal mortgage repayments.40.In March 2003 the partnership business “[G]” at Property G in Victoria relocates to Property C, [W] in Victoria. I work fund during the day at the premises and live alone in the back of the [business] at night. I am currently staying at these premises.41. In May 2006 the “[S]” partnership business at Property O ceased operations. Mr Gissing did not renew the lease and the retail tenancy was a moth (sic) by to month. The landlord terminated the tenancy. The stock from this partnership business was relocated to a warehouse in Adelaide. Mr Gissing’s green Porsche was also related to a warehouse in Adelaide with the intention to set up a similar partnership business. Thus did no materialise and the partnership business stock and Mr Gissing’s green Porsche still remains in Adelaide.42.In 2006 Mr Gissing purchases for the business partnership a Grey Honda Civic, registration number [omitted] with funds from the partnership business and registers it in my name. This vehicle is used for business related purposes such as stock purchases.43.On many occasions between 2001 and 2012 I demanded that Mr Gissing produce all business records to enable the partnership business taxation to be completed. Mr Gissing ignored my requests until I engaged accountant, Mr D in 2011 who informed the Australian Tax Office of Mr Gissing’s avoidance to produce business partnership accounts and records. To Mr D. Mr D managed to complete several years of outstanding tax returns and GST business activity statements with limited documents produced by Mr Gissing to Mr D. Mr Gissing failed to perform his obligations to the business partnership. Again I did not take legal action to evict Mr Gissing from my [3] Property H residential property on the basis that he threatened not to do the business partnership accounts and records if he was evicted. Mr Gissing had me over a barrel as he was responsible for buying the business partnership stock and without his input the business would not survive. I wanted it to survive I invested many years of my life in the business selling [omitted]. 44.In 2006 Mr Gissing in addition to purchasing stock for the business as a business partner at Property C decides to apply for Centre assistance.45.In early 2009 Mr Gissing is charged by the police for receiving stolen [omitted]. The police informed me that Mr Gissing has 3 warehouses full of stock, [W], [3] Property H, [R]. I knew of my residential property at [3] Property H and the [R] warehouse because my “1956 Black Chevrolet Tourer Corvette” is stored at [R]. Mr Gissing refuses me access to remove my car from [R]. Again I am trapped by Mr Gissing. I cannot do anything because he needs to do the business partnership accounts and taxes.46.Mr Gissing’s [occupation omitted] Licence is revoked after he pleads guilty in the Magistrates’ Court.47.I applied for a [omitted] Licence and registered a new business called “[J]” on 4 May 2009 and trade at [W].48.On numerous occasions I requested Mr Gissing to reconcile the business accounts and stock and dissolve the business partnership. Mr Gissing refused to accept our business relationship was over. I asked Mr M to draft a business settlement proposal and Mr Gissing refused to accept the terms and did not sign the document.[11] Mr M tried to negotiate a settlement on my behalf with Mr Gissing without success.49.On the 29 March 2012 I asked Mr M to go to my property at [3] Property H. When Mr M entered the property he took 12 photographs of inside of [3], 2012 (sic).[12] The photographs show the state that Mr Gissing kept my unit. At other times when Mr Gissing boarded their (sic) it was several times worse that (sic) these 12 photographs. 50....”[11] See Annexure 2 of deponents affidavit[12] See Annexure 3 of deponents affidavit

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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