Gissing & Sheffield
[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:
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:
The proceedings be adjourned for mention on 14 February 2013 at the Federal Magistrates Court of Australia at Melbourne commencing at 10.00 am.
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.
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’[email protected]
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
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.
As a preliminary issue, the parties asked that the Court determine whether or not there should be a declaration of a de facto relationship between the parties pursuant to s.90RD of the Act. Determining whether two people have lived together in a de facto relationship for the purposes of the Act is not always straight forward. This was an unusual relationship.
The applicant is aged 49, is self employed and lives in [suburb omitted]. The respondent is aged 65 and is a business proprietor and lives in [suburb omitted].
Procedural background
The applicant filed an initiating application on 22 March 2012.
The matter was first listed in the duty list on 1 May 2012. On that occasion both parties were represented and the Court made orders for reasons given ex tempore including that the respondent file a response, affidavit and financial statement and (pending an interim hearing on whether the Court should make a declaration pursuant to s.90RD of the Act that a de facto relationship existed) that the respondent was restrained from dealing with certain property. The matter was fixed for interim hearing on 7 June 2012 and the applicant’s costs were fixed and reserved.The respondent filed her response, 5 affidavits and a financial statement on 29 May 2012. The matter returned before the Court on
7 June 2012. On that occasion the applicant made an oral application (without objection) for an adjournment. For reasons given ex tempore the Court ordered that the proceedings be adjourned to 9 August 2012. Orders were made in relation to discovery and for the filing of material and both parties costs were fixed and reserved.
Both parties then filed further affidavit material and the matter returned to Court on 9 August 2012 for hearing on the issue of whether or not there should be a declaration of a de facto relationship between the parties pursuant to s.90RD of the Act.
The hearing
The hearing commenced on 9 August 2012 and continued on 10 August 2012. Mr Robinson of Counsel appeared on behalf of the applicant and Mr Howe of Counsel appeared on behalf of the respondent. The matter was adjourned part heard to 15 October 2012 and continued on
16 October 2012. At the conclusion of the evidence Counsel for each of the parties made submissions and the Court reserved its decision.
Material relied upon
Both parties relied upon a number of affidavits. The applicant tendered many documents into evidence corroborating the factors said to be in support of his case that the parties were in a de facto relationship.
The applicant also adduced evidence from his mother and a number of other witnesses in support of his case.The applicant relied on the following material:
(a)initiating application filed 22 March 2012;
(b)his affidavit filed 22 March 2012;
(c)financial statement filed 22 March 2012;
(d)affidavit of his instructing solicitor filed 5 June 2012;
(e)his further affidavit filed on 28 June 2012;
(f)affidavit of Ms T filed 24 July 2012;
(g)affidavit of Mr R filed 28 June 2012;
(h)affidavit of Ms G (the applicant’s mother) filed 28 June 2012;
(i)affidavit of Mr V filed 28 June 2012; and
(j)affidavit of Mr P filed 28 June 2012.
Counsel for the applicant also tendered the following exhibits:
a)Exhibit A1 – Affidavit filed in the County Court of Ms L dated 26 March 1997;
b)Exhibit A2 – Bank of Melbourne statements from 13 April 1996 to 12 February 1997;
c)Exhibit A3 – Interior design plans dated 18 May 2000;
d)Exhibit A4 – Several faxes from 2001 to 2003 from the [omitted] Council directed to the applicant and the respondent;
e)Exhibit A5 – Correspondence dated 11 December 2000 and 18 January 2001 from Mr B to Ms M regarding planning;
f)Exhibit A6 – Letter addressed to the applicant and the respondent from [omitted] Barristers and Solicitors dated 4 July 2001;
g)Exhibit A7 – Correspondence from [omitted] Real Estate Agents dated 23 June 2004 addressed to the applicant;
h)
Exhibit A8 – Residential Tenancy Agreement signed and dated
27 October 2003;
i)
Exhibit A9 – Residential Tenancies Bond Authority dated
30 October 2003;
j)Exhibit A10 – Tax invoice from the [omitted] Pool and Spa Co Pty Ltd;
k)Exhibit A11 – correspondence dated 23 June 2009 and 27 August 2009 from [omitted] Partners attaching ASIC correspondence dated 24 August 2009;
l)Exhibit A12 – bank statements from the Bank of Melbourne on 12 February 1997, 26 February 1997 and 27 August 2009;
m)Exhibit A13 – bank statements from the Commonwealth Bank;
n)Exhibit A14 – Bill from [omitted] Solicitors dated 7 February 1996;
o)Exhibit A15 – invoice from [omitted] & Associates;
p)Exhibit A16 – Invoices from [omitted] Barristers & Solicitors Real Estate Agents;
q)Exhibit A17 – Suncorp Banking Loan/Credit Application form;
r)Exhibit A18 – [omitted] Insurance Policy dated February 2007;
s)Exhibit A19 – [omitted] Insurance Policy dated July 2011;
t)Exhibit A20 – Invoices to applicant from [vehicle details omitted];
u)Exhibit 21 – Origin electricity bill in the applicant’s name;
v)Exhibit A22 – RACV membership in the applicant’s name;
w)Exhibit A23 – transfer of licence for bathing box into the respondent’s name; and
x)Exhibit A24 – applicant’s chronology.
The respondent adduced evidence from a number of witnesses designed to corroborate her argument that the parties were not in a de facto relationship. The respondent sought to rely on the following material:
a)response filed 29 May 2012;
b)respondent’s affidavit filed 29 May 2012;
c)affidavit of Mr M filed 29 May 2012;
d)affidavit of Mr W filed 29 May 2012;
e)affidavit of Ms V filed 29 May 2012;
f)financial statement filed 29 May 2012;
g)affidavit of Mr G filed 6 July 2012;
h)affidavit of Mr D filed 6 July 2012;
i)affidavit of Ms C filed 19 July 2012;
j)respondent’s affidavit filed 19 July 2012; and
k)respondent’s affidavit field 30 July 2012.
Counsel for the respondent also relied on exhibit R1 which was a Centrelink income statement of the applicant’s dated 4 December 2007.
The applicant’s case
The applicant’s argument can be summarised as follows:
a)the parties were in a relationship for almost 17 years;
b)the parties relationship was beyond a business relationship that saw them with “something more [than that] invested” and each having a personal and financial stake in a de facto relationship;
c)there was a very high degree of financial interdependence between the parties;
d)the respondent’s reliance on the applicant in relation to all financial and other issues was a clear and in this case overwhelming indication that the relationship was more than a business relationship and that they were in fact in a de facto relationship;
e)whilst the majority of the property was in the respondent’s name yet the evidence was the parties treated (and used) the property as joint assets;
f)for a considerable period of that time they had resided in the same dwelling;
g)whilst there was little if any public acknowledgement of a de facto relationship, and no letters or cards between them, it was no less a relationship of mutual interdependence;
h)regardless of whether (or/and for how long) they had been in a sexual relationship their lives were so “intertwined”, and so “mutually dependent” that they were in a de facto relationship; and
i)on the basis of the above considerations and the evidence in this case the Court could be satisfied that the parties had merged their lives and for all practical purposes were in a de facto relationship.
The respondent’s case
The respondent’s argument can be summarised as follows:
a)the applicant on his own evidence had lied in the past to obtain a financial advantage from Centrelink;
b)the applicant had a pattern of taking advantage of others by not telling the truth and a conviction for dishonesty;
c)the applicant cannot be allowed to say one thing to Centrelink and another to this Court and he is “stuck with” what he told Centrelink;
d)the applicant had the onus of proof to not only lead evidence capable of satisfying the Court of the existence of a de facto relationship but that it existed on 1 March 2009 and subsequently; and
e)whatever may have gone on before March 2009 a preponderance of the factors in s.4AA(2) after that date pointed against a de facto relationship.
The law
Section 4AA of the Act defines de facto relationship as follows:
“(1) A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b) the persons are not related by family (see subsection (6)); and
(c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.”
Section 4AA(2) sets out a number of “circumstances” which may be indicative for the Court of such a relationship. These references are, however, not necessarily definitive of a de facto relationship. This is clear from the wording of the subsection which says:
“(2)Those circumstances may include [emphasis added] any or all of the following:
(a)the duration of the relationship;
(b)the nature and extent of their common residence;
(c)whether a sexual relationship exists;
(d)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e)the ownership, use and acquisition of their property;
(f)the degree of mutual commitment to a shared life;
(g)whether the relationship is or was registered under
a prescribed law of a State or Territory as
a prescribed kind of relationship;(h)the care and support of children;
(i)the reputation and public aspects of the relationship.”
Section 4AA(3) of the Act provides:
“(3)No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.”
Section 4AA(4) of the Act and the authorities[1] make clear that the Court has a wide discretion in determining whether there be a declaration. The Act states at s.4AA(4):
“A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.”
[1] see for example Moby & Schulter [2009] FamCA 1285
The relevant date for operation of jurisdiction of this Court in making a declaration is 1 March 2009.
In closing submissions Counsel for the respondent referred to the decision of Baker & Landon [2010] FMCAfam 280. In that case Riethmuller FM considered the nature and extent of the Court’s jurisdiction in the context of these sorts of applications and said:
“11.The requirements of s.4AA, in summarised form, require a decision as to whether the parties ‘have a relationship living together on a bona fide domestic basis’. In coming to this decision the court must have regard to ‘all of the circumstances of the relationship’, which may include the factors set out in s.4AA(2). Importantly, no finding as to a particular aspect of the relationship appears to be determinative (s.4AA(3)) nor does the section attempt to prescribe the weight to be attached to any particular factor (s.4AA(4)). As a result the definition cannot be said to be closely proscribed.
…
18.…the phrase ‘living together’ cannot be taken in isolation and read a requiring that de facto couples always live together.
…
21.The words of s.4AA making it clear that not every factor is necessarily required to be considered…
…
22.As a result, it is likely that there will be differences in the relationship covered by the term “de facto” as it appears in various enactments as a result not only of differences in wording, but the different purposes of the statutory schemes. It may well be that a person is in a relationship sufficient to satisfy section 4AA of the Family Law Act, yet not satisfy the relevant provisions of the Social Security Act 1991. As a result, the receipt of a single rate of pension will not be determinative of the question, under the Family Law Act, although the circumstances leading to such a pension being granted will be a factor to take into account.
…
27.The matters referred to in s.4AA should be considered, along with any other facts or circumstances in the particular case or relationship ‘as may seem appropriate in the circumstances of the case’: see s.4AA(4). Care must be exercised before relying upon either the authorities, or developed norms, with respect to the definition of the term ‘de facto’ under other legislative provisions.”
Whilst not referred to in submissions Bender FM in Dakin & Sansbury [2010] FMCAfam 628 also considered the definition of de facto relationship in the context of the Act and the decision of Baker & Landon (supra) and said:
“13…Whether the parties have been living in a de facto relationship must be determined by reference to the definition as set out in the Family Law Act 1975. It can not be determined by reference to the definition of “de facto relationship” as contained in other legislation nor decisions interpreting such other legislation. Further, the nature of the relationship cannot be determined by looking at external societal views of what constitutes a de facto relationship, nor is it determined by what the parties themselves thought their relationship to be.
14.Thus in order to determine whether the parties were “a couple living together on a genuine domestic basis” for a period of two or more years, it will be necessary to have regard to all the circumstances of their relationship in the context of the matters set out under subsection (2) of section 4AA of the Act but keeping in mind subsection (3) of section 4AA of the Act requires:
‘No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.’
and that subsection (4) of section 4AA of the Act enables the court to:
‘…have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.’
In Jonah & White [2011] FamCA 221 (Jonah & White) Murphy J considered whether the parties were in a de facto relationship when they had been in a relationship for 17 years, lived separately, did not have any joint property, did not pool resources and only saw each other for a couple of days every couple of weeks.
In Jonah & White (supra) His Honour referred to the decision in Moby & Schulter [2009] FamCA 1285 together with various decisions in State jurisdictions as to the meaning “living with… on a bona fide domestic basis”. His Honour said:
“60.In my opinion, the key to that definition is the manifestation of a relationship where “the parties have so merged their lives that they were, for all practical purposes, ‘living together’ as a couple on a genuine domestic basis”. It is the manifestation of “coupledom”, which involves the merger of two lives as just described, that is the core of a de facto relationship as defined and to which each of the statutory factors (and others that might apply to a particular relationship) are directed.
…
65.It seems to me to be clearly established by authority that the fact that, for example, the parties live in the same residence, for only a small part of each week does not exclude the possibility that they are “living together as a couple on a genuine domestic basis” or that the maintenance of separate residences is necessarily inconsistent with parties having a de facto relationship. So much is, in my view, clear from the statutory recognition that parties to a relationship can be married but also be in a de facto relationship.
66.The issue, as it seems to me, is the nature of the union rather than how it manifests itself in quantities of joint time. It is the nature of the union – the merger of two individual lives into life as a couple – that lies at the heart of the statutory considerations and the non-exhaustive nature of them and, in turn, a finding that there is a “de facto relationship”.
The decision in Jonah & White (supra) was referred in Ricci & Jones [2011] FamCAFC 222[2] and upheld on appeal in Jonah & White[3].
[2] see paragraphs 60-62 in Ricci & Jones [2011] FamCAFC 222
[3] Jonah & White [2012] FamCAFC 200
In Smyth & Pappas [2011] FamCA 434 Cronin J referred to the decision of Murphy J in Jonah & White (supra) and said:
“7.As to what sort of relationship satisfies the legislative definition, little in the authorities is helpful. In Jonah and White (supra) Murphy J at para 66 described the nature of the union as the merger of two individual lives into life as a couple. It is also conceivable however, that two people could live very individual lives as a couple preferring not to merge their existences. As Coleman J said in Barry & Dalrymple [2010] FamCA 1271:
237The terms of s 4AA (2), and inclusion of provisions such as s 4AA (3) and (4) make clear the legislative intention that each case be assessed on its own facts and circumstances. To the extent that logic and commonsense suggest the drawing of an inference, there does not appear to be any prohibition upon doing so. Inferences reliant upon gendered assumptions or social stereotyping cannot be countenanced. In that sense, the absence of jurisprudence in relation to what may constitute a same sex de facto relationship may be a benefit.
8.It is conceivable that just as peoples’ lives merge or just join together, there is also a waning of interest in their joint relationship to a point at which the lives become distinctly individual again. The end is not often clear or finite. In Moby & Schulter [2010] FamCA 748, Mushin J observed that under the legislation, the parties were required to live together at some time but there was nothing in the section that required any concept of proportion of time nor that the time be full time in the sense of unbroken periods.
9.Provided the parties have lived together for some period on a domestic basis, they may be found to have been in a de facto relationship. If it is not necessary for there to be a constant common residence right throughout, as the relationship changes, the living arrangement is just one facet of their relationship; physical separation does not necessarily mean that the de facto relationship is ended.”
Before turning to consider the evidence and the relevant statutory considerations, it is timely to note that in final submissions Counsel for the respondent argued that the applicant should not be allowed to represent to Centrelink that he was not in a de facto relationship and then come before the Court and claim that he was. Counsel for the respondent relied on the decision in Elias v Elias (1977) FLC 90-267 (Elias).
In Dandridge & Barron [2012] FMCAfam 141 McGuire FM dealt with the decision in Elias in the context of proceedings to determine whether the parties were in a de facto property relationship in circumstances similar to those in this case where the applicant had represented to Centrelink that they were not in a de facto relationship. His Honour said:
“31.This evidence, which came to light during the trial, caused me to raise with counsel for the applicant the so-called Elias principle. I was concerned that the applicant was making and relying on representations to Centrelink in order to benefit herself but then denying these representations when it did not suit her argument before this Court. In this regard, I accept the submissions of counsel for the applicant that the considerations arising from the facts in Elias v Elias[4] do not provide a definitive principle of estoppel. Nevertheless, the factual platform and the inherent contradictions in the applicant’s behaviour and representations are matters that I can and do take into account.”
[4] Elias v Elias (1977) FLC ¶90-267
In that case His Honour was not convinced on the balance of probabilities that the relationship of the parties (which His Honour found was for around 10 years) had achieved the status of a de facto relationship.
Counsel for the respondent also referred to the decision of Roberts FM in H v H [2002] FMCAfam 381 where His Honour referred to the decision in Elias. In that case His Honour was dealing with, amongst other things, a property settlement dispute between a husband and a wife. His Honour said at paragraph 19 of his decision that on the basis of the decision in Elias and the decision in Jordan and Jordan (1997) FLC 92-736 that the husband could not tell the Australian Tax Office one thing and then tell this Court another.
In Christofis & Zorbas [2011] FMCAfam 571 McGuire FM had also considered the decision in Elias in the context of proceedings to determine whether the parties were in a de facto property relationship in circumstances where the applicant had signed a handwritten document for the benefit of Centrelink denying that they lived with the other party in those proceedings. His Honour said:
“106.Arguably, the letter to Centrelink, or at least that portion of it penned and signed by the applicant Mr Christofis, is captured by the Elias principle.[5] Put simply, the principle is that a person should not be permitted to rely on a representation at a point in time for their own benefit and then later deny the substance of that representation so as to achieve an alternative benefit. The “principle” is not a mandatory one. It is no more than a logical and understandable consideration for a court in evaluating evidence.
107. The applicant says that he penned and signed the note to Centrelink at the instigation of the respondent and presumably to allow her to retain her personal Centrelink benefit. The respondent denies that this is the fact. Nevertheless, it remains unexplained other than my speculation above as to why such a note to Centrelink was being prepared in January 2007. Further, it is clear that the respondent completed other documentation to Centrelink which was factually incorrect in respect of her relationship with Mr Christofis. Taking all of these matters into account, I am not of the view that the note to Centrelink penned and signed by Mr Christofis is fatal for his case under the Elias principle.”
[5] ibid
I bear in mind and will apply the approach to these principles set out in the abovementioned decisions. As was made clear by Counsel for the respondent in submissions the onus of proving the de facto relationship and its existence on 1 March 2009 lies with the applicant.[6]
[6] see Taisha & Peng & Anor [2012] FamCA 385 at paragraph 11
Witnesses
Both parties relied upon a number of affidavits. During the course of the four day hearing there were 14 witnesses who were called to give evidence and were cross examined.
The witnesses in the applicant's case (apart from the applicant) were Mr C, Mr R, Ms G, Ms T, Mr P and Mr V.
The applicant tendered many documents into evidence which it was submitted corroborated the existence of the circumstances set out above in s.4AA(2) of the Act necessary for the Court to find the existence of a de facto relationship.
The witnesses in the respondent’s case, apart from the respondent, were Mr W, Mr M, Ms V, Mr D, Mr G and Ms C.
Both parties have sought to attack the credit of the other and some of their other witnesses in this case. As has been noted the applicant has represented one thing to Centrelink and claimed another in this Court. Counsel for the applicant whose client received a certificate under section 128 of the Evidence Act 1995 (Cth) acknowledged as much.
I also note that in Taisha & Peng & Anor [2012] FamCA 385 at [11] Cronin J said:
“11.Thus, while the onus is on the applicant to prove on the balance of probabilities that a de facto relationship existed, the Court may attach whatever weight it considers appropriate. The Evidence Act 1995 (Cth) applies (see s 4(1)) and s 140 requires the Court to apply the standard of proof which is described as the balance of probabilities although it would seem that the weighting and the balancing task is much less formal than in other civil proceedings . In my view, s4AA(4) does not ameliorate the requirement for the applicant to prove her case on the transparent standard.
In a case such as this the credit of the witnesses can be of significance. Credit, of course, means whether or not the Court should accept the evidence of a witness on a particular issue or generally. Credit findings assume a much greater significance in finely balanced cases such as this one. Because of the position of the parties and their witnesses the Court is required to determine on the balance of probabilities which party’s version is more plausible.
In this case and for the reasons which I will turn to where there is a conflict in the evidence between the applicant and the respondent I accept the applicant’s version of events. There are certain matters that I have taken into account in finding that where the applicant and respondent’s evidence is inconsistent, I prefer the evidence of the applicant.
The applicant’s evidence regarding the Centrelink claim and his conviction for dishonesty does place his credibility at issue. However the former was explained as was the latter. The way in which the applicant gave his evidence compared to the respondent, and the supporting documentation that became exhibits lead me to, albeit not without some hesitation, prefer his evidence to that of the respondent.
Importantly, the applicant was able to provide corroborative material annexed to his affidavits or tendered as exhibits that provided an independent and contemporaneous basis for the claims he made. The applicant also gave evidence as to dates and events with more precision and confidence than did the respondent.
The respondent’s credibility for reasons to which I will return was called into question by her own behaviour in and her evidence before the Court which was not only inconsistent on many occasions but on important issues before the Court in this case found wanting.
Evidence of applicant
In his affidavit filed 22 March 2012 the applicant deposed:
“…
4.Ms Sheffield and I met in 1994 and commenced living together in a de facto relationship in 1995.
5.There are no children of our relationship.
6.We separated a few days prior to Easter 2010. I cannot remember the exact date but I know that Good Friday fell on 2 April 2010.
7.At the commencement of cohabitation Ms Sheffield owned [omitted] premises in Adelaide, South Australia. I believe the property had equity of approximately $75,000 and she received rental income from that property.
8.I owned a property at Property E with equity of approximately $30,000, a motor vehicle worth approximately $5,000, a wine collection worth approximately $30,000 and some [omitted] valued at approximately $20,000.
9.I was employed as [omitted] 4 days per week and also dealt in [omitted] goods at the time our relationship commenced.
10.Ms Sheffield was not working but received rental income from the [omitted] premises in Adelaide.
11.Initially I spent part of each week in [omitted] and regularly stayed overnight with Ms Sheffield in her rental property in [omitted].
12.In 1996 Ms Sheffield and I formed a partnership to run a [business omitted] together (“[G]”) at Property G. I resigned [sic] my job in [omitted] and moved into my Property E property. Ms Sheffield spent 6 months of that year in Queensland working for a friend in his business and then moved into my home with me.
13.We pooled our income and paid all of our expenses including business, investment properties and personal expenses from our combined funds. Throughout our relationship neither of us drew wages or paid ourselves a share of the profits.
14.During the following years we moved a number of times and lived in various rental properties together. We also purchased properties (including the property at [3] Property H, which we lived together for part of our relationship, and an investment property at Property M) and motor vehicles (a green Porsche Carrera paid for from Ms Sheffield’s savings, and a yellow Porsche Carrera paid for by the business and loan of $5,000 from my parents), 2 boat sheds (paid for by the business and a further loan of $5,000 from my parents) together, and opened a [business omitted] together in [omitted]].
15.In 1999 we moved the [business] to Property O. I sold the property at Property E to cover expenses associated with the [omitted] in Adelaide and the remaining funds were invested in our partnership business. My parents also loaned us various amounts totalling $20,000 to assist us in the [omitted] business. My mother worked in the [omitted] 2 and a half days per week without pay.
16.My father paid our car insurance premiums on his credit card for a number of years. Those payments, which were loaned to us, amounted to approximately $5,000.
17.During 2002 we moved to our [business] to Property C, [W].
18.Ms Sheffield has always been a heavy drinker but this became progressively worse. By 2003 she started to sleep at the [business] premises in [W] on a regular basis when she had been drinking during the day. I often stayed there with her, and for several years the [business] was our permanent home.
19.During 2003 we purchased the property at [2] Property H, by re-financing the investment property at Property M and using funds from the business.
20.In 2006 we closed the [business]. Ms Sheffield’s father had hip replacement surgery and she went to Adelaide for 3 months to be near him. We decided to move to Adelaide and open a [business] there. We moved a lot of [omitted] stock and personal possessions including clothing, furniture, and 2 Porsche motor vehicles to Ms Sheffield’s father’s warehouse in Adelaide. The move did not eventuate and
Ms Sheffield returned to Melbourne. The stock and other assets remained in Adelaide.
21.Late in 2006 we sold the Property M property.
22.I continued residing at our [business] in [W] and when Ms Sheffield returned to Melbourne we both worked and resided in the [business] together. We pooled the income from the [omitted] and the business, and the business paid for the loan secured against the [omitted] as well as the mortgages secured against the 2 properties at Property H.
23.By 2010 our relationship had deteriorated significantly.
Ms Sheffield was drinking heavily. She was physically aggressive towards me on occasions, hitting and kicking me. We argued a lot over the business.
24.Our sexual relationship had been dwindling since about 2005 but we continued to share a bed until late March 2010 when Ms Sheffield told me that she did not want me to sleep in the same bed with her anymore. We separated just before Easter. Initially I slept in my car, and when our tenant vacated the property at [3] Property H, a few weeks later, I moved in there.”
As was pointed out in submissions for the respondent there were some areas of the applicant’s evidence that raised concerns. However, on balance I am not satisfied his credit generally as compared to that of the respondent was seriously damaged.
During the course of his evidence the applicant was given a certificate under section 128 of the Evidence Act 1995 (Cth). The certificate was necessary as the Court was satisfied that the interests of justice required that the applicant give evidence and in particular answer questions in relation to an application he made to Centrelink.
In final submissions Counsel for the applicant pointed to the evidence that this representation was done with the respondent’s knowledge and from which the respondent benefitted.
In light of the approach adopted in the abovementioned cases[7] I am not satisfied despite the submissions made on behalf of the respondent that the Centrelink issue is fatal to the applicant’s case in light of the decision in Elias. In coming to that conclusion I have weighed in the balance all the evidence, including that given by the respondent (to which I will return) where many admissions were extracted in cross examination including the admission she represented to Suncorp that assets she agreed were owned by the applicant were included in her application for finance.
[7] see for eg Christofis & Zorbas [2011] FMCAfam 571
In cross examination the applicant maintained he had lived with respondent at properties at including Property H for many years. The applicant acknowledged for some of the period of their relationship he lived alone. However the applicant maintained he and the respondent shared accommodation at Property M, Property S, Property L, Property H and Property C. The applicant maintained in cross examination that utilities were in joint names and the parties not only were in a sexual relationship but were in a de facto relationship.
The applicant acknowledged in cross examination that over 16 years he and the respondent had never attended a family function with his parents and that his mother had only seen the respondent once in person during that time. Overall whilst the Court has reservations about accepting the applicant’s evidence given the matters referred to earlier, the sheer weight of corroborative documentary material along with the evidence of the witnesses called on his behalf and the difficulties attached to accepting the respondent’s case which will become clear presently mean that I prefer his evidence where his evidence is in conflict with that given by the respondent.
Evidence of Mr C
Mr C who works in the finance industry gave evidence he had known the applicant and the respondent since 1998.
Mr C affirmed an affidavit in support of the applicant and was cross examined. Mr C in his affidavit[8] deposed:
[8] Affidavit of Mr C filed 28 June 2012
“…
3.I have always been under the impression that Mr Gissing and Ms Sheffield were in a de facto relationship, that they both lived together and were business partners.
…
9.The relationship between Mr Gissing and Ms Sheffield did not feel to me like a strictly business relationship. I cannot point to specific incidents, but I believed that they were in a relationship together.
…
11.There was a sense of “we’re in this together” between
Mr Gissing and Ms Sheffield. They ran businesses together which serviced loans which were connected to assets which I understood they both had an interest in.”
In his evidence before the Court Mr C gave evidence it was his clear understanding that the applicant and respondent were in a de facto relationship and that whilst he never saw any affection between them they were clearly more than friends. Mr C gave evidence his impression was the applicant and the respondent were more than friends, more than business partners and that there was a level of trust and familiarity he observed between them that indicated to him they were in a de facto relationship.
There was no reason given not to accept Mr C as an honest and reliable witness.
Evidence of Ms G
Ms G (the applicant’s mother) gave evidence of her understanding of the parties relationship and how she and her late husband had interacted with the parties over the course of the time they had understood the applicant and the respondent were in a de facto relationship.
Ms G had deposed in her affidavit[9] that:
[9] Affidavit of Ms G filed 28 June 2012
“…
7.It also seemed to me that Ms Sheffield did not want to advertise her relationship with Mr Gissing because of their age difference. She talked about how much she looked after him, seeming to want to give the impressions that he was the boy she looked after rather than her partner.
8.Ms Sheffield invited to our family celebrations such as Christmas but she always declined, and Mr Gissing told us that it made her sad to be with a family. She did not want to be close to us. Sometime Mr Gissing came alone and took food home for Ms Sheffield.
…”
Unlike most of the respondent’s witnesses in cross examination the applicant’s mother gave direct answers to questions in cross examination and made concessions where appropriate. One example will suffice to illustrate this point. Ms G was asked whether what she knew of the applicant and the respondent’s relationship beyond what she observed when assisting them at their [business] was only what her son told her, she answered “yes”.
The applicant’s mother agreed in cross examination that for a relationship that was over 16 years, only seeing the respondent once was strange. Nonetheless the applicant’s mother maintained that she spoke to the respondent many times during that period and she described the respondent as “chatty”. When asked in cross examination the applicants’ mother said the reasons the applicant gave for why the respondent didn’t see his family were due to the respondent and her family history. Importantly, however the applicant’s mother gave evidence, which wasn’t challenged, of seeing the applicant bringing meals cooked for him by the respondent.
The applicant’s mother’s evidence as to her impression of the respondent and her behaviour including towards her son was consistent with the rest of the applicant’s witnesses and reinforced the impression arising from all of the evidence that whilst this was an unusual relationship it nonetheless had the manifestations of “coupledom” referred to in Jonah & White (supra).
There was no reason given not to accept Ms G’s evidence including her understanding of the parties as a couple and that they were in a de facto relationship. Ms G was an honest and reliable witness.
Evidence of Mr P
Mr P. who is involved in the [omitted] trade gave evidence he had known the parties as a couple for 15 years and the respondent for longer. Mr P.’s evidence was he was absolutely positive the parties were a “couple”.
Whilst Counsel for the respondent was able to obtain answers in cross examination to the obvious questions asked of all of the applicant’s witnesses about the absence of observed displays of public affection there was no reason given not to accept Mr P.’s evidence and importantly his impression of the parties as a couple.
Evidence of Mr R
Mr R is a [occupation omitted] and gave evidence he had been a friend of the applicant for 15 years. Mr R gave evidence in cross examination he had never seen the applicant and the respondent embracing or having meals together and admitted his impression of the parties relationship was formed from what the applicant told him and the way in which the applicant spoke of the respondent.
However there was no reason given not to accept Mr R’s evidence and his understanding and impression of the parties as a couple.
Evidence of Mr V
Mr V gave evidence he had been a neighbour at the Property H property. Mr V had the opportunity to see the applicant and the respondent and observe their comings and goings. Mr V’s evidence was he didn’t doubt the applicant and the respondent were in a de facto relationship but they weren’t “lovey dovey”.
There was no reason given not to accept that Mr V was giving evidence to the best of his ability and that his understanding and impression of the parties as a couple was reasonable and honestly held.
Evidence of Ms T
Ms T gave evidence on behalf of the applicant by telephone (without objection) from Norway and was cross examined. Ms T’s evidence had a ring of veracity to it. Ms T had no basis or reason to side with one or the other of the parties having simply rented one of the properties owned by the respondent during the period the applicant said the parties were in a de facto relationship.
Ms T deposed in her affidavit filed 24 July 2012, that:
“…
5.In late 2009 when I found myself suddenly without a place to live Mr Gissing allowed me to rent a property belonging to him and Ms Sheffield, namely [3] Property H.
6.While I was living at [omitted] I would go to Ms Sheffield and Mr Gissing’s [business] in Property C to pay them rent. What I saw of Mr Gissing and Ms Sheffield’s interactions with each other at the [business], which included their conversations, banter, arguing and physical gestures, was consistent with my understanding that they were in a love relationship and I saw nothing that made me think otherwise.”
Ms T gave evidence in cross examination that there was an “air of intimacy” to the relationship between the applicant and the respondent. Ms T’s evidence was that her impression was the parties were in a ‘relationship’ was based on seeing the parties together, observations of their body language and her understanding of that relationship which she acknowledged was otherwise based on what the applicant had told her.
Tellingly in cross examination Ms T gave evidence of conversations she had with the respondent about the respondent’s concerns that the applicant may leave the respondent for a younger woman.
Ms T rented the Property H premises and was never asked by the respondent (who had claimed she wasn’t living with the applicant) whether the applicant was living there. I accept without reservation the evidence of Ms T and that her understanding and impression of the parties as a couple and in a “love” relationship was reasonable and honestly held.
Evidence of respondent
The respondent was a very unsatisfactory witness. The respondent’s evidence made plain she is bitterly disposed to the applicant and believes he is seeking to take financial advantage of her. However where for the reasons set out above and as on too many occasions her evidence before the Court strained the bounds of credulity to be accepted when in conflict with that given by the applicant I prefer that given by the applicant.
One illustration of this behaviour by the respondent in her evidence will suffice to make the point. The respondent was confronted directly in cross examination with architectural drawings for renovations that were subsequently done to one of her properties which included the provision of a water feature. The drawings made plain that the water feature had been ordered and was intended for the applicant. When called on to explain the apparent discrepancy between her claims the applicant was only effectively a boarder and that the documentation which suggested both parties merged their lives into a life as a couple at that time the respondent was rendered mute.
Overall, despite the detailed affidavits which had clearly been prepared on her behalf rather than by her, the respondent’s oral evidence before the Court was lacking in detail and had a sense of unreality to it. Perhaps the most remarkable illustration of this was when the respondent asked the Court to accept that she gave the applicant a Porsche motor vehicle as he “looked like he needed one.”
In the respondent’s affidavit filed on 29 May 2012 she deposed that:
“Background
1.…
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; and
iii.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; and
iv.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 Assets
17.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 & Assets
28.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 Affidavit
29.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 and
e. 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; and
c.$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; and
b.attend to my personal administration matters under my instructions
using 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
The respondent’s evidence in cross examination was either evasive, unresponsive or characterised by grudging admissions. The respondent’s evidence in cross examination, in particular, about financial matters was uncertain and she appeared easily confused by questions pertaining to her income, business and assets. This added to concerns about the respondent’s evidence and reservations about whether it could be accepted where in conflict with the applicant. This is the case as the respondent failed to provide a rational or more likely explanation for what she claimed.
The respondent’s repeated use of the phrase “my money” when talking about monies spent from the business (which she demonstrated no understanding of) on assets (including those she agreed belonged to the applicant) which had clearly on the documentation tendered before the Court been things the parties had done together and paid for by money the parties had worked for in their business all combined to reinforce the impression she either wasn’t being straight with the Court or was determined to ignore the reality of the relationship.
An example of how on repeated occasions the respondent’s evidence strained the bounds of credulity was the respondent’s claim during the course of cross examination that throughout the whole of the relationship that she had never seen a bank statement and that the applicant had no role in the renovation of the Property H property.
The respondent repeatedly denied she had any regard to what the applicant wanted for the renovations at Property H. However when confronted with architectural drawings which included a water feature for the applicant she was unable to explain her previous denials that the applicant had anything to do with the renovations.[13]
[13] see exhibit A3
The difficulty that the respondent’s repeated attempts to avoid answering direct questions created was best illustrated by the following example. The respondent’s evidence before the Court made clear she was determined to avoid giving the impression the parties slept together. At the beginning of cross examination the respondent said she lost her “mojo” a long time ago. The respondent sought to explain her use of the sexual health clinic one week apart from the applicant as she was using an “exclusive” dating service. Later in her evidence she admitted sleeping with Mr M. Many of the applicant’s witnesses had given evidence of what they had observed of the parties’ sleeping arrangements at the residences where the parties lived together.
There was plenty of evidence that suggested there was only one bedroom at many of these properties and the inference being the parties shared this bedroom. In what may have been an effort to refute this, the respondent in answer to a question in cross examination asked the Court to accept as truthful her answer in response to a question on sleeping arrangements at one of the properties where the parties lived together that she slept in the bath tub on one occasion. This may have been explicable if the Court accepted the applicant’s claims, and corroborated by some of his witnesses, that the respondent had problems with alcohol. However, given the above the respondent’s answer did not assist the respondent in making out her denials that the parties ever slept together and/or were not in an intimate relationship.
The respondent’s palpable frustration with having to justify herself in Court was clearly evident throughout her evidence in cross examination. This frustration was repeatedly given voice to in answer to questions from Counsel for the applicant about the parties personal and business finances when she said “I’ve never seen a bank account.”
Two points should be made in relation to this as it served to illustrate and underscore the point made by Counsel for the applicant that the respondent’s evidence should not be accepted. The first point is the response to such questions about fundamental matters like bank statements is so absurd as to defy belief particularly given the respondent’s claim to own everything, that these were her properties and that this was all about her “money”. The second point is the response illustrated the unsatisfactory state of the respondent’s evidence before the Court referred to earlier. To put the matter bluntly on too many occasions the respondent when confronted in cross examination with either documentation she couldn’t refute or inconsistencies in her evidence became insolently mute.
This unfortunate tendency left the impression that the respondent in her evidence before the Court refused to answer any question which she believed would not assist her case.
Taken together these points illustrate why the Court, for the reasons set out earlier, prefers the applicant’s evidence (supported as it is by corroborative documentary evidence) where in conflict with that given by the respondent.
In the context of the applicant’s claims, the respondent reluctantly acknowledged she couldn’t dispute the applicant’s claim that the proceeds from the sale of Property E went into the joint account or that proceeds from the business were used to purchase Property M and in turn, the property at Property H. [14]
[14] see exhibits ‘RTG-11’ to ‘RTG-12’ of the applicant’s affidavit
The respondent admitted that she bought into the business the ‘[G]’ and later opened the [business] at Property T with the applicant. The respondent reluctantly admitted that correspondence had been sent and addressed to the applicant and herself jointly referring to them as owners of Property H.[15]
[15] See exhibit A5
The respondent reluctantly acknowledged that despite being in her sole name one of the bathing boxes also bought with money from the parties business belonged to the applicant. The respondent also reluctantly acknowledged in cross examination that business accounts for the “[S]” business were in joint names.[16]
[16] see exhibits A12 to A13
The respondent reluctantly acknowledged accounts received from real estate agents showed monies from the parties properties went into their joint bank account.[17] Similarly the respondent accepted not without some prodding in cross examination that she couldn’t dispute the applicant’s claim that the proceeds from the sale of Property E went into the parties joint account or that proceeds from the business were used to purchase Property M and in turn Property H.[18]
[17] see exhibit A15
[18] See exhibit RJG 11 to RJG 12 to applicant’s affidavit.
The respondent agreed the applicant handled all of the parties financial affairs. The respondent’s evidence was the applicant was better at “book work”. When pressed in cross examination the respondent reluctantly acknowledged the applicant did more than just “paperwork” for their businesses but everything from loans to purchasing property, negotiations with architects and even assisting her father.
The respondent reluctantly acknowledged the applicant did the lease for her [omitted] in Adelaide, the paperwork for the purchase of the Property H properties, the lease for one of the Property H properties and that this had nominated the applicant as the landlord.[19]
[19] see exhibits A4 and A7
The respondent very reluctantly acknowledged in cross examination that the parties made an application for finance using as security or identifying for that purpose what were joint assets.[20] The respondent reluctantly acknowledged documentation sent to the Property H property listed her and the applicant as drivers of the Porsches.[21]
The respondent also reluctantly acknowledged the Fiat motor vehicle that Mr M claimed to have given her was registered with the RACV as the applicant being a driver. The respondent also acknowledged bills tendered by the applicant recorded him as a resident at the Property C premises.[22]
[20] see exhibit A17
[21] see exhibit A18
[22] see exhibit A21
Finally the Court was required to issue repeated warnings to the respondent that she was not to discuss her evidence with her other witnesses (all of which appeared to go unheeded). The difficulties this created culminated in the respondent being recalled to be cross examined about conversations she held with Ms V in the toilets at Court.
Evidence of Mr W
Mr W gave evidence he had known the respondent since 1970.
Mr W is a [occupation and address omitted] who claimed to have known the respondent since 1970, like “sister and brother”. In his affidavit filed 29 May 2012 he deposed to visiting the respondent in Melbourne between 1998 and 2012 “at least once or twice every year.”[23] However in his evidence before the Court he claimed he visited 2-3 times a year and stayed for 1 month at a time. Whilst that evidence wasn’t directly challenged in cross examination, questions that were asked of Mr W in cross examination raised doubts as to his evidence.
[23] see affidavit filed 29 May 2012
Unfortunately his affidavit and his evidence before the Court left the clear impression it had a rehearsed quality to it.
Firstly, the respondent’s own evidence didn’t bear out the claim made by Mr W that the applicant “boarded” at Property H. Secondly,
Mr M’s evidence of his sexual relationship with the respondent belied Mr W’s claim and that of the respondent that the respondent wasn’t in a sexual relationship. Finally Mr W’s claim that when staying at Property H he slept downstairs on an air mattress where the applicant had his “living quarters” suffered not only from the vice referred to earlier and was inconsistent with evidence given by the applicant’s witness but smacked of a claim of recent invention designed solely to buttress the respondent’s claims.
Evidence of Mr D
Mr D swore an affidavit in support of the respondent wherein he deposed to being consulted by both the applicant and the respondent (albeit at separate times) in 2010 about doing tax returns for their businesses. The balance of Mr D’s affidavit was about events and actions he took after the parties, on either party’s case, had separated. Overall Mr D’s evidence was of no forensic assistance to the determination of the jurisdictional question the parties asked the Court to decide.
Evidence of Mr M
Mr M swore an affidavit on 29 May 2012 in which he deposed to being a company director who had known the respondent since 1988. Mr M gave evidence of having a sexual relationship with the respondent over an extended period of time.
In his affidavit Mr M deposed to confronting the applicant and asking the question whether he was having an affair with the respondent which he swore the applicant denied. The balance of Mr M’s affidavit which he adopted as true and correct went into considerable detail about matters he couldn’t possibly give direct evidence of[24] and reinforced the impression which arose during his evidence before the Court that the affidavit had been prepared for him.
[24] see paragraph 53 of affidavit filed 29 May 2012 for example
In reaching that conclusion I am satisfied the evidence given by Mr M[25] before the Court which focused on his relationship and sexual relationship with the respondent had more of the ring of veracity to it than the details of the applicant’s and respondent’s business in his affidavit.
[25] The witness told the Court he was a [qualification omitted]
Evidence of Ms V
Ms V was not a satisfactory witness. Ms V’s veracity as a witness was skilfully called into question by Counsel for the applicant during cross examination when she was confronted with questions about conversations she had with the respondent outside of Court. Ms V denied any such conversation. Unfortunately for Ms V the respondent didn’t.
Ms V had deposed that she had known the respondent for “10 plus years”[26]. Ms V deposed that “during our many conversations” the respondent told her she was in a business partnership with the applicant. Ms V appeared not only overtly hostile to the applicant even in the Court but also appeared unable to curtail a contemptuous attitude to his counsel. As a witness Ms V was not only defensive but appeared to be deliberately obtuse and I accept the submission of Counsel for the applicant that her evidence in support of the respondent was unsatisfactory.
[26] see affidavit filed 29 May 2012
Evidence of Mr G
Mr G swore an affidavit in support of the respondent’s case claiming to have known her for 18 years and along with his former partner (Ms C) having allowed his daughter to stay with the respondent.
However Mr G’s evidence was called into question when it became clear during his cross examination that the strident nature with which he gave evidence the respondent was not in a relationship with the applicant as he would never have allowed his daughter to stay with her if there was a man staying with the respondent couldn’t be reconciled with the evidence given for the respondent by Mr W.
Tellingly however Mr G evidence was notable in so far as he used the collective pronoun ‘they’ when referring to the purchase of properties, as in they (the applicant and the respondent) purchased Property H. Whilst Mr G appeared to retreat from this later in his evidence his attempt to do so was neither seemly nor convincing.
Mr G’s evidence in cross examination simply reinforced the impression created by the rest of the evidence that the respondent deliberately compartmentalised her life to suit what she told people and his evidence more generally did little to assist the respondent’s case.
Evidence of Ms C
I accept Ms C was trying to give evidence to the best of her ability. Unfortunately like her former husband (Mr G) her evidence made plain she didn’t really know the respondent but rather it appeared knew only what the respondent wanted her to know.
The same difficulties that confronted the Court accepting the evidence of Mr G in relation to his claims denying the existence of a de facto relationship between the applicant and the respondent were present in relation to the evidence of Ms C and her evidence more generally did little to assist the respondent’s case.
Summary of witnesses
I have not recited, nor do I intend to recite all of the evidence that was presented at the jurisdictional hearing although all of that evidence and the submissions made on behalf of the parties has been considered and taken into account.
As noted earlier the evidence led over the course of the jurisdictional hearing made plain this was an unusual relationship but one that nonetheless had many of the manifestations of “coupledom” referred to in the authorities.[27] The parties appeared to have a network of friends and associates with interests in [omitted]. The evidence given by the applicant’s witnesses was that the respondent’s personality was at best difficult or voluble and the applicant was meek and the one who organised things. This evidence correlated with how the parties gave their evidence before the Court.
[27] see Jonah & White (supra)
The parties’ lives were clearly associated with and appeared to be defined by their various interests and undertakings from their ‘businesses’. The relationship appeared to on one parties case wax and wane but nonetheless endured whilst the other party asked the Court to accept it was only ever business and a bad one at that but one she remained in despite the claim she made she didn’t trust him.
In summary then the respondent was a vague, confused and confusing witness, who had a tendency to ramble and left the impression her affidavit material had been prepared for rather than by her. The respondent’s witnesses who were called to corroborate her argument that the parties were not in a de facto relationship didn’t advance her case. However more tellingly cross examination of the respondent’s witnesses demonstrated that that evidence was prepared to support the respondent’s case and transparently so. No more remarkable illustration of this was the depths that Ms V in her evidence before the Court was prepared to go to avoid answering questions about conversations with the respondent in the toilets outside of Court about her evidence.
When recalled to give evidence it was alleged the respondent had had a conversation with one of her witnesses in the Court toilets about her evidence the respondent claimed Ms V had approached her but Ms V denied it took place. Overall the issue raised questions about and was a poor reflection on the veracity of both witnesses.
The applicant, on the other hand, who himself was at least consistent in his evidence, was more persuasive, aided as he was by witnesses called on his behalf whose evidence had the ring of veracity to it and the sheer weight of documentary evidence tendered on his behalf that corroborated the claims he made about the existence of a de facto relationship with the manifestations of “coupledom” referred to in Jonah & White (supra).
Consideration
The following overview of the history of the parties relationship draws on an exhibit tendered by the applicant.[28] However where there is a statement of fact, those statements are, unless otherwise specified, findings of fact by the Court to the requisite standard on the basis of the evidence before the Court.
[28] see exhibit A24
The respondent was born in Hungary [in] 1947 and came to Australia in the 1950s. The applicant was born in Australia [in] 1963.
In 1991 the respondent moved to Melbourne and resided in [omitted]. The applicant had been in a relationship that ended in 1993 and had a property at Property E.
The parties met in 1993 by which time the respondent had received a [omitted] business in Adelaide from her parents.
On 11 November 1993 the applicant attended the [omitted] Sexual Health Clinic. One week later, on 7 December 1993 the respondent also attended the [omitted] Sexual Health Clinic. She also attended for a second appointment on 20 December 1993.
In early 1994 the applicant and the respondent lived at the property in [omitted]. In May 1994 the parties commenced a business partnership and sold [omitted].
In June 1995 the respondent moved to Queensland for 6 months and the applicant moved into the Property E property with the contents from the respondent’s [omitted] property and her cat. At or around this time the applicant bought a share the [G] business.
The respondent returned to reside in Melbourne in November 1995 and lived with the applicant in the property at Property E. In December 1995 the respondent moved into a rental property at Property S.
In 1996 the parties form a partnership to buy out the remaining share of and run the [business], [G]. In mid 1996 the parties open a [business], ‘[S]’ in Property T. In late 1996 the respondent moved into a rental property in Property L. Also around that time the parties purchased a property at Property M in the respondent’s name.
In early 1997 the parties purchased another property a [3] Property H, also in the respondent’s name. In April 1997 the parties moved into the Property H property together.
In 1998 the parties purchased a green Porsche which was registered in the respondent’s name.
In 1999 the [business], ‘[S]’ operated from Property T and from premises at Property O. The applicant sold the Property E property and put the proceeds of sale towards the parties business.
In October 1999 the parties purchase a grey Honda motor vehicle from the applicant’s parents using business funds from their joint account. The vehicle was given to the respondent’s father.
In or around 1999 to 2000 the respondent’s [omitted] property became vacant. In early 2000 the [business], ‘[S]’ ceases to operate from Property T but continued from the premises in [address omitted].
In 2001 the respondent purchased a yellow Porsche in the respondent’s name. In August 2001 and again in December the respondent purchased a boat shed or bathing box.
In September 2002 the respondent purchases a Yamaha outboard motor using business funds, which was given to the respondent’s father.
In early 2003 the parties [business], [G] closed. The stock was moved into storage. Around the same time the respondent’s [omitted] property was leased to [M].
In March 2003 the [business] reopens in Property C and traded as ‘[S]’ (along with, [S] at Property O).
In mid 2003 the parties purchase another Unit at [2] Property H in the respondent’s name. The respondent commenced sleeping at the Property C business premises while the applicant continued to reside at [3] Property H.
In July 2006 the [business], ‘[S]’ closed. The applicant applies for Centrelink benefits.
In late 2006 the respondent sold the property at Property M and uses the proceeds of sale to reduce the mortgage on [3] Property H and to also pay her tax debt. The applicant around that time arranged to sell both properties at Property H.
In late 2006 to early 2007 the applicant travelled to Adelaide 3-4 times to inspect [businesses] to purchase and to attended doctors with the respondent’s father.
At Easter time in 2007 the applicant drove the respondent to Adelaide in the green Porsche motor vehicle. The respondent remained in Adelaide and spent time with her father who was unwell.
In mid 2007 the parties’ stock from the [business] and personal items were relocated to Adelaide. The applicant later purchased a white Honda motor vehicle for the respondent to drive to Adelaide in. The applicant then returned to Melbourne and resides in the Property C [business] premises. The respondent operated a [business] in Adelaide for 2 weeks. The applicant then drove the yellow Porsche to Adelaide and left the vehicle with the respondent’s father.
In late 2007 the applicant commenced a business, [R]. The applicant however continued his involvement in the parties business.
In early 2008 the sale of the Property H properties fell through. The applicant moved back into [3] Property H. The respondent returned to Melbourne and moved into the Property C [business] premises. The parties continued their relationship. The property at [2] Property H was then leased.
In February 2009 the business [R] ceased trading. In April 2009 the applicant was charged for receiving stolen [omitted]. The applicant’s [omitted] licence was revoked. In May 2009 the respondent applied for a [omitted] licence. The respondent commenced trading the ‘[J]’ business at the Property C [business] premises with the new [omitted] licence.
In late 2009 the property at [3] Property H wass leased to Ms T. The applicant moved into the Property C [business] premises with the respondent.
In March 2010 the respondent tells the applicant that she no longer wanted to sleep together. In March/April 2010 the parties separated though continued to be business partners. The applicant moved out of the Property C premises and slept in his car. Ms T then vacated the property at [3] Property H and the applicant moved back into that property.
In May 2010 the applicant became ill and ceased working at the ‘[J]’ business at the Property C premises. In August 2010 the applicant recommenced working for the business.
The respondent ceased working in the ‘[J]’ business in Property C in mid 2011. In early 2012 the respondent asked the applicant to vacate the property at [3] Property H. The applicant then returned to live with his mother.
On 22 March 2012 the applicant issued property proceedings and filed supporting affidavit material. On 29 March 2012 Mr M removes the applicant’s documents from the property at [3] Property H. The applicant then lodged a caveat over the properties in the respondent’s name.
Circumstances in s.4AA(2) of the Act
In light of the evidence of the parties and their witnesses at the hearing I now turn to consider the circumstances in s.4AA(2) of the Act and their bearing on the issue the parties asked the Court to decide mindful of the principles set out in the authorities referred to earlier.
The duration of the relationship
It is clear on any version of the evidence that the parties met in the early 1990’s and continued a form of relationship until March 2010. The parties commenced an association in 1995. That association was concluded in 2010. The duration of the parties association in its various forms over that time and not withstanding its various iterations is supportive of there having been a de facto relationship.
I prefer the evidence of the applicant to that of the respondent as to the purchase of the properties and the reasons for them being put in the respondent’s name. The applicant’s version of events and that the parties were in a de facto relationship (even putting to one side the ongoing business relationship) is more consistent with the documentary material tendered as exhibits during the hearing. Accordingly I reject the submission made on behalf of the respondent that there was no de facto relationship continuing after March 2009.
The nature and extent of the parties’ common residence
It is common ground that the parties resided together however the periods over which and the basis on which this occurred was disputed by the respondent. The evidence is that both parties had unusual lifestyles. Both parties lived in several properties during this period together and separately.
In the context of those disputes I refer to the decision in Moby v Schulter [2010] FLC 923-447 where Mushin J considered a number of authorities in State jurisdictions. His Honour went onto say:
“139.While I respectfully agree with the approach of their Honours, before the definition may be considered as constituting “a single composite expression of a comprehensive notion or concept” there are two specific elements of that definition which require individual considerations. The first of those is the concept of “a couple”. For the purposes of the definition “a couple” is constituted by two people whether of the same or opposite sexes.
140.The second specific element is the concept of “living together”. In my view, if a couple do not live together at any time they cannot be seen as being in a de facto relationship. However, the concept of “living together” does not import any concept of proportion of time. In particular, it does not require that a couple live together on a full time basis. On the basis that one or both members of the couple may also be legally married or in another de facto relationship at the same time was they are in the subject relationship, it must follow that it is feasible that the subject relationship might involve the parties living together for no more than half of the time of that relationship. Further, there is nothing to suggest that it must be even as much as half of the time.
141.Subject to the above, the question of whether the parties were in a de facto relationship must be considered on a case-by case basis without circumscribing any particular factor.”
This court is mindful of the subsequent observations of Murphy J in Jonah & White [2011] FamCA 221 who said:
“48.His Honour’s approach might be seen to embrace Powell J’s approach in Simonis v Perpetual Trustee C Ltd at 685 where Powell J held that the (then) definition of “living with ... on a bona fide domestic basis” (in s 6 of the Family Provision Act 1982 (NSW)) was “a single composite expression of a comprehensive notion or concept, and therefore has to be approached by considering the expression as a whole and not in several parts”.
49.In Hayes v Marquis[2008] NSWCA 10, McColl JA held that the effect of earlier decisions of the New South Wales courts, including the Court of Appeal, meant that “practically, [it is] ... necessary to consider the evidence as a whole, not under isolated headings” (citing Barnes v de Jesus[2001] NSWSC 19 at [26] per Windeyer J). Her Honour went on to hold that “... the concept of ‘living together’ will always be something different from living together as a couple, one of the critical requirements for a de facto relationship”. There, her Honour was distinguishing de facto relationship from a “close personal relationship”, an expression which is separately defined in the Property (Relationships) Act 1984 (NSW).
50.In the same case, Einstein J held (albeit in the respect of the definition of the “close personal relationship” in s 5(1)(b) of that NSW Act) that:
166. Upon its proper construction the expression “living together” in the context of the instant legislation is to be understood as referring to the sharing of a home: that is to say to co-habit/to dwell together. The test is an objective one. It involves assessing the nature and extent of the claimed common residence. To live together requires that the two adult persons be seen as regarding the place or places in which they live as “their home”. Both of them might not always be found in that home because from time to time family or business requirements or similar may require one or both to spend some time elsewhere cf: Re Fagan deceased[1980] 5 FamLR 813 where Jacobs J observed [at 822] that “there may be states of cohabitation where (the partners) see as much of each other as they can”, to which I would add – “in the circumstances”. But the dominant parameter will be whether or not the individuals concerned may be discerned to regard the premises in question as their home and in so doing to be acting reasonable.
51.That passage was cited with approval by White J in the NSW Supreme Court in Vaughan v Hoskovich [2010] NSWSC 706. His Honour said in respect of the definition of de facto relationship within the NSW legislation that:
‘What is clear from ss 4(3) is that satisfaction of the requirement that the persons live together as a couple does not require that they share a common residence on a full time basis. There are of course many examples of people who can be said to live together, although one or the other is away for long periods. A partner who takes an overseas posting, or who goes to sea in the course of his or her occupation for long periods, will not cease to live with his or her partner because of extended absences ...’
52.The approach just referred to is consistent with decisions of the Queensland Court of Appeal. (See e.g. PY v CY[2005] QCA 247; KQ v HAE[2006] QCA 489; FO v HAF[2006] QCA 555).
53.It is, however, important to bear in mind that the emphasis on common residence (whether for varying periods of time or not) is but one of the specific factors enumerated within s 4AA of the Act. The section specifically provides that no particular finding in respect of that matter (or indeed any other specified circumstance) is “to be regarded as necessary in deciding whether the persons have a de facto relationship”.
54.Nevertheless, as has been observed in respect of that specific consideration in the NSW legislation:
[50] One of the circumstances of the relationship to be taken into account under s 4(2) is para (b), namely the nature and extent of common residence. Subsection 4(3) provides that no finding in respect of any of the matters mentioned in subss (2)(a)-(i) is to be regarded as necessary for the existence of a de facto relationship. That is curious as it seems difficult to see how parties could be said to be living together as a couple if they never had a common residence. However, in Piris v Egan[2008] NSWCA 59, Campbell J said (at [146]) that:
[146] ... it should be recalled that the list of “circumstances” in s 4(2) are reminders of matters that possibly might be relevant in deciding whether two people are in a de facto relationship, but do not state its essence. The essence is to be found in the definition in s 4(1). If two people do not “live together as a couple” they do not satisfy the definition of being in a de facto relationship, regardless of what might be the situation concerning the various “circumstances” listed in s 4(2).
(Vaughan v Hoskovich, above).
55.Again, the approach there exemplified can be seen to be consistent with authorities in Queensland where a very similar legislative regime has been considered. Underlying those authorities is a necessity to establish the existence of “a relationship as a couple living together on a genuine domestic basis” informed by, but not necessarily determined solely by, the individual findings with respect to the list of circumstances.
56.In KQ v HAE[2006] QCA 489; [2007] 2 Qd R 32 the Queensland Court of Appeal (McMurdo P, Keane and Holmes JJA) held in a joint judgment:
[19] These considerations all lend support to the view taken in earlier cases that a “de facto relationship” will not be established for the purposes of Pt 19 of the Property Law Act [1974] [PLA] unless it can be seen that “the parties have so merged their lives that they were, for all practical purposes, living together as a married couple. (Citing Thompson v Department of Social Welfare [1994] 2 NZLR 369 at 374; Mao v Peddley [2002] DFC 77,515 at 77, 522 and K v H-J[2006] QSC 168 at [67].)
57. The Court also held in that case:
[18] Obviously, the scope of the expression “de facto relationship” in Pt 19 of the PLA is not strictly limited by the genesis of the expression in popular speech.
For example, the provisions of Pt 19 are not confined to relationships between men and women. Nevertheless, the nature of the association involved in the marriage relationship is instructive in this context. It is clear from s 32DA(4) of the Acts Interpretation Act that Pt 19 of the PLA is not concerned with the relationship between people who merely live in the same household and share living expenses; the PLA is not concerned with the relationship between friends who share a household, or with that between carer and patient. Further, the fact that two people have a sexual relationship will not suffice to establish that they are “de facto partners”. This is clearly so, by reason of the fundamental requirement that the parties must be “living together as a couple on a genuine domestic basis”....
[20] It may also be accepted that a continuing cohabitation in a common residence is not necessary to establish the continuation of a “de facto relationship”, at least where the parties have lived together and have not effected a permanent separation. Nevertheless, the definition of “de facto relationship” suggests that, usually, the parties should have, at some stage, been “living together as a couple on a genuine domestic basis”. The fact that the parties have never lived together in a common abode must be acknowledged to be an indicator that they have not “lived together as a couple on a genuine domestic basis”. This indication will be especially significant where the parties have not shared the common burden of maintaining a household. It would be a wholly exceptional case in which one could conclude that a man and a woman, who have never lived together as husband and wife in a common residence, and who have never made provision for their mutual support, have been “living together as a couple on a genuine domestic basis”. That conclusion is not justified by the mere circumstance that the parties, or one of them, at some stage, intended eventually to marry. Such a case is one where friendship, or even courtship, has not matured into the commitment whereby the parties have so merged their lives that they were, for all practical purposes, living together as a married couple.
58.It is in my opinion instructive that the Commonwealth legislature did not provide for relief of the type contemplated by Part VIIIAB of the Act in circumstances where one party has, by their words or actions, provided care, love or support to another or, indeed, in circumstances where one party has induced in the other an expectation of a relationship of greater commitment than that which transpired. Rather, the legislature has made provision for that relief upon satisfaction of the jurisdictional fact that a relationship of a particular, statutorily-defined, type exists.
59.In that respect it seems to me also instructive that the Commonwealth legislature did not provide for relief of that type in circumstances where two people were parties to, for example, a “domestic relationship”, or, as in New South Wales, a “close personal relationship” but, rather, only where parties were in a “de facto relationship” as defined.
60.In my opinion, the key to that definition is the manifestation of a relationship where “the parties have so merged their lives that they were, for all practical purposes, ‘living together’ as a couple on a genuine domestic basis”. It is the manifestation of “coupledom”, which involves the merger of two lives as just described, that is the core of a de facto relationship as defined and to which each of the statutory factors (and others that might apply to a particular relationship) are directed.
61.Differences in nomenclature tend to confuse the picture rather than illuminate it. For example, counsel for the applicant submitted – in my view correctly – that a relationship which one party regards as “an affair” might in fact be a de facto relationship as defined. So, too, a woman who might be described as “a kept woman” (an expression accepted by the respondent upon suggestion from counsel for the applicant) might, similarly, describe one party’s perception of the relationship but, when all factors and the circumstances are considered, the relationship might nevertheless meet the definition of a “de facto relationship”.”
His Honour’s observations met with the approval of the Full Court in Ricci & Jones [2011] FamCAFC 222. I also note that the authorities make it clear that a finding that the parties maintained a common residence is not necessarily determinative of the fact or otherwise of a de facto relationship.
In this case, during the course of the relationship the parties brought and sold a number of properties together. On each occasion the title was in the respondent’s name. However joint funds were applied by the parties to expand their property interests.
The evidence revealed that the parties occupied premises owned by the respondent at different times throughout their relationship. The evidence also revealed that the parties at different times occupied different residences. Many of those premises owned by the respondent were acquired during the relationship, from funds of both parties and organised by the applicant.
The evidence made clear that the applicant used the respondent’s address for his correspondence, the parties various ventures and endeavours and that associated with their business. The respondent placed great emphasis on her evidence that she did not live with the applicant at the Property C premises. Contrary to the respondent’s claims, and that of her witnesses, there was evidence the applicant did live there at times.[29] However the authorities make it clear that such a finding is not a determinative or otherwise of a de facto relationship.
[29] See exhibit A21
In final submissions Counsel for the respondent made reference to the evidence given by Messrs W and M as somehow rebutting the claims by the applicant that he shared a residence with the respondent before or after their time together at Property H.
Counsel for the respondent placed much emphasis on his client’s claims that the parties lived together for only a short period in the context of a relationship of over 16 years. However the evidence indicates to the contrary and in any event such a finding is not necessarily determinative of the existence of a de facto relationship. However the evidence does bear out the manifestations of “coupledom” referred to in Jonah & White (supra) in relation to this consideration.
Existence of a sexual relationship
The applicant gave evidence of having a sexual relationship with the respondent but the respondent denied this. Both parties undertook tests for the presence of sexually transmitted diseases at the [omitted] Sexual Health Clinic in 1993. When this was put to the respondent in cross examination she maintained it was because she was pursuing (presumably) opportunities through a dating agency. There was evidence that the respondent was in a sexual relationship with at least one other man, Mr M. However the respondent‘s evidence left the impression she was determined to avoid giving any evidence which might lead to a conclusion she had ever been in a sexual relationship with the applicant.
Given the polarised position of the parties there is limited evidence of witnesses who were in a position to have seen something consistent with a sexual relationship. I do however note the evidence of the applicant’s witnesses about the parties sleeping arrangements. There is also, (leaving to one side the evidence of the applicant and the respondent) the evidence of Mr M who gave evidence of confronting the applicant about an affair with the respondent. This raises the issue of the impression the behaviour the parties themselves created in the minds of others and adds to the inferences that can be drawn from the other evidence including their living arrangements and that the parties both were checked out at the sexual health clinic just after meeting.
In final submissions Counsel for the applicant submitted that ultimately it didn’t really matter whether the parties were in a sexual relationship as the evidence demonstrated that their lives were so “intertwined”, and were so “mutually dependent” that the Court should find that they were in a de facto relationship.
In final submissions Counsel for the respondent maintained his client’s position that the parties hadn’t had a sexual relationship, by reference to the assertion that the applicant wasn’t able to identify a scar on the respondent’s buttocks or breast and that given this that it beggared belief there had been a sexual relationship between the parties.
It is ultimately unclear as to the exact nature of the sexual relationship of the parties or how long it pertained beyond the evidence of the applicant which I accept that there was one. Acceptance of the respondent’s denial in cross examination of the existence of a sexual relationship is not preferred given concerns about her evidence more generally. Whilst I note that the respondent admitted she often slept overnight with Mr M at hotels no one submitted that a monogamous sexual relationship was necessary to ground the existence of a de facto relationship.
Financial dependence, interdependence and arrangements for financial support
Counsel for the applicant submitted the respondent’s various claims about the nature of the relationship and the roles of the parties was not only inexplicable but inherently improbable. One example will suffice to illustrate this criticism.
Counsel for the applicant noted the respondent repeatedly claimed in relation to correspondence addressed to the applicant at her address (when she claimed to be living alone) and the transactions evidencing same arranged by the applicant that he was simply acting as her agent. However the credibility of such claims was undermined by the respondent’s own claims in her evidence when pressed on the detail of such transactions that she didn’t know as she never handled them. It was submitted on behalf of the applicant that it was inherently improbable for the respondent to maintain on the one hand the applicant only did her bidding and yet on the other hand disclaim knowledge of the detail of the transactions.
The weight of evidence led by the applicant, which was largely undisputed by the respondent establishes that there was a high degree of financial dependence by the respondent on the applicant and more importantly interdependence between the parties.
In final submissions Counsel for the applicant correctly summarised the evidence on this consideration as demonstrating a very high degree of financial interdependence between the parties. Counsel for the applicant submitted the respondent’s repeated claims in her evidence to have ceded total control to what she variously claimed was either a “good friend”, “like a girlfriend” or ‘business partner’ should be rejected as a transparent attempt to avoid acknowledging to the Court that the parties were in a de facto relationship. It was submitted the evidence revealed that the parties (through their joint endeavours) built up and arranged their assets and liabilities between them to provide for their futures and this was an important manifestation of one of the necessary considerations in s.4AA(2) of the Act.
In contrast, Counsel for the respondent pointed to the evidence of each of the parties that they had a separate bank account as somehow indicative of the parties keeping their lives separate. However that submission seeks to put a gloss on that evidence for which there is no foundation. To the extent the parties each had a separate bank account the evidence was those were only of peripheral and minor use and/or only for limited periods. The majority of the parties money was transacted through the parties joint account and the parties treated those monies as their joint monies. The overwhelming bulk of what the parties worked together for, saved and spent, came from their joint account/s.
I accept the submission of Counsel for the applicant that the respondent’s claims that she was shackled to a man she didn’t trust or control and yet remained in a financially dependent and business relationship with him as an inherently improbable claim and I reject it. Furthermore that she would continue to live with the applicant ‘on and off’ despite her claims is hard to fathom as other than indicative of an ongoing de facto relationship. This factor does point strongly to the existence of a de facto relationship.
Contrary to the respondent’s submissions, the evidence on the whole shows an ongoing financial relationship and dependency until 2010. It is true that the properties purchased during the relationship were registered in the respondent’s name but the applicant gave a viable explanation for this occurring and funds to purchase many of these were secured over or gained on the basis of jointly owned property which the respondent albeit grudgingly acknowledged.
The parties business continued throughout the period of the relationship and despite changes during that time to living arrangements the evidence revealed the parties’ financial dependence and interdependence was largely unaffected. In relation to this consideration the evidence does point in favour of the existence of a de facto relationship given the overwhelming manifestation of the incidents of “coupledom” on the evidence before the Court.
The ownership, use and acquisition of their property
The applicant’s evidence of what he had at the start of the relationship and how it was dealt with by the parties wasn’t really challenged.
The respondent was of independent means before meeting the applicant. However the respondent admitted acquiring assets of significance over and above the businesses during the course of the relationship and that the funds for that purpose came from joint funds.The evidence also establishes (and the respondent didn’t deny this) that the applicant was intimately involved in all decisions regarding the acquisition, ownership and use of all of that property.
In final submissions Counsel for the applicant noted whilst the real property was in the respondent’s name it was brought with money from joint funds, the parties used it jointly and when those properties were rented the money went into joint accounts.
In contrast in final submissions Counsel for the respondent pointed to the alleged absence of evidence of acquisition of property after March 2009 as grounding a finding that there was no de facto relationship after that date. However the difficulty confronting that submission is it ignores inter alia the evidence of Ms T and the ongoing operation of the business and how the parties treated what was acquired from that endeavour and how it was spent for their mutual benefit. It also ignores the contemporaneous documentation that corroborates the applicant’s claims that it continued.[30]
[30] see for example exhibit A11, exhibit A19
In relation to the submission of Counsel for the respondent that the evidence showed the respondent held the legal title to the real property, it failed to deal with the respondent’s own evidence that many of these were acquired using joint funds and arranged and organised by the applicant. For the same reasons referred to in relation to the previous consideration I am satisfied this consideration also points in favour of the existence of de facto relationship.
The degree of commitment to a mutual shared life
The applicant gave evidence of the parties quickly establishing a relationship and then the parties entering into a business relationship which lasted for over 16 years.
The evidence of the applicant shows the parties spent significant amounts of time together working at their respective [business](es).
The parties also travelled together. Although the respondent asserts she was only in a business relationship with the applicant to assist her and work at the [business](es) I prefer the evidence of the applicant that they did this activity together and shared the profits of their activities for their mutual benefit.There was evidence of the parties (admittedly mostly the applicant but also on occasions the respondent) discussing with family or friends their long term intentions which is consistent with the applicant’s claim they were in a de facto relationship.
The applicant gave evidence in significant detail as to the respondent’s use of the proceeds from the business. Whilst a friend may have some knowledge of another friend’s financial affairs, the extent the applicant knew of how the respondent utilised these funds seems more consistent with the type of information shared between partners in a de facto relationship. It certainly would not be consistent with a relationship of a ‘girlfriend’ as the respondent at times described the relationship.
The respondent denied any commitment to a de facto relationship with the applicant from early 1994/1995 onwards and certainly after March 2009. The respondent didn’t deny the claim made in cross examination that the parties purchased everything together and put assets in the respondent’s name and liabilities in the applicant’s name. The purchase of luxury motor vehicles, bathing boxes and the renovations at Property H are all strong indicators of a continuing mutual and shared commitment (even leaving to one side) the ongoing nature of the business relationship.
The applicant’s disclosure of the Centrelink claim was explained as was the existence of separate (albeit subsidiary) bank accounts by both parties. The weight of the evidence is indicative of the parties jointly transacting their business and personal affairs through the business accounts in the main for the purposes of their mutual advancement. There was a wealth of evidence that the parties acted and were treated by others as owing property together and carrying out work or renovations on those assets together.[31]
[31] See exhibits A4, A5 and A6
The changes brought about in the business consequent upon the loss of the applicant’s second hand dealers licence, and the speed with which this occurred are also indicative of the parties being in a position where they acted to preserve not only the operation of their business but the maintenance of their broader relationship.
Registration of the relationship
There is no evidence that the relationship between the parties was registered under any prescribed law of a State or Territory. This is not a relevant consideration.
The care and support of the children
This also not a relevant consideration.
The reputation and public aspects of the relationship
The applicant filed affidavits from others in support of his case.
The applicant relied on the affidavits ofMr C, Mr R, Ms G, Ms T,
Mr P and Mr V who all supported his case that he was in a de facto relationship with the respondent. The respondent also filed affidavits from Mr W, Mr M, Ms V, Mr D, Mr G and Ms C who all supported the respondent’s position that she was not in a de facto relationship with the applicant.
The applicant’s case was the dearth of witness evidence as to the reputation and public aspects of the relationship was by the design of and at the initiative of the respondent. This was an unusual relationship and it suited both parties for it to be so.
The applicant’s witnesses however all gave consistent evidence that they understood the applicant and the respondent were involved in their businesses together, lived together at times but more importantly were in a de facto relationship. All of the applicant’s witnesses gave evidence that demonstrated their impressions of the applicant and the respondent and the manifestations of “coupledom”[32] they observed to the parties relationship.
[32] see Jonah & White op cit
In final submissions Counsel for the applicant referred to the wealth of documentation tendered in evidence addressed either to the applicant at addresses where the respondent claims she lived alone or to the parties jointly as corroborative of the parties being in a de facto relationship.
In final submissions Counsel for the respondent noted the disparate claims made by the witnesses for each of the parties and placed particular emphasis on the fact that the applicant’s witnesses rarely saw the respondent as somehow conclusive in favour of the argument his client made.
Counsel for the respondent attempted to make something out of the fact that there were not public outbursts of affection between the applicant and the respondent. However this was not a clandestine relationship and I am satisfied the applicant’s witnesses provided a more probable explanation for this to do with the respondent’s background and that this was more a factor of the parties personality and demeanour than an indicator of a relationship or otherwise.
In this regard I place particular reliance on the witnesses for the applicant including his mother and Mr V. I also refer to Ms T’s evidence and accept it without reservation given she had no reason to have been as partial as any other of the parties’ witnesses.
Findings and conclusions
It is the applicant who asserts the existence of de facto relationship.
As such, he must give and adduce evidence which causes the Court to make the necessary findings on the standard of proof being on the balance of probabilities such that the declaration he seeks can be made.The applicant’s case was the parties’ business, which it was not disputed was operated jointly for much of the period in question and grew out of their relationship. During that relationship the parties had purchased 3 properties, Porsche and other motor vehicles, beach boxes and run a business together in 4 locations. The applicant maintained the sheer weight of evidence demonstrated not only the nature of the financial dependence and interrelationship between the parties over time but that the logical, obvious and more likely conclusion arising was the parties were in a de facto relationship.
Considerable emphasis was placed by Counsel for the applicant on what were said to be the intangibles of the parties relationship which when taken together pointed clearly to something beyond a business relationship. It was submitted that over the course of a relationship that spanned almost 17 years there had been a mutual commitment using the business relationship to build up assets which were pooled for their future. It was submitted that such was the degree of financial interdependence over such a long period that the Court should find there was a de facto relationship.
The respondent’s case was she entered into the business relationship with the applicant and they shared accommodation for some of that time but did not co-habit as a de facto couple. The respondent conceded a “degree” of financial interdependence but maintained it was a “platonic” relationship and there was no sexual relationship, no commitment to a shared future and but for their business the parties lived separate lives. The respondent’s case placed considerable emphasis on how the parties held out their relationship publically as somehow decisive of the issue of whether they were in a de facto relationship.
However I am not persuaded the holding out by the parties (or at least the respondent) of the nature of their relationship was consistent with their actual relationship. The parties not only conducted joint enterprises and joint bank accounts but there is considerable evidence of inter mingling of finances from their joint endeavours for their mutual support. The evidence of the respondent as to the nature of the relationship being one of very good friends didn’t ring true.
This applies particularly to her evidence that she gave the applicant a car as “he looked like he needed a Porsche”. When regard was had to the applicant’s knowledge and responsibility for the parties finances over such a long period and the respondent’s dependence on the applicant in relation to that and all financial issues and their joint endeavours I am satisfied the parties relationship was more than that of business partners and definitely more than friendship.
There are a number of indicators that support the claim of a de facto relationship within the meaning of the Act. They include:
a)the duration and nature of the business and personal relationship/association;
b)the intermingling of finances and interdependence by the respondent and the applicant on finances;
c)the parties lived together for extended periods of time; and
d)evidence of a commitment to a shared life and perception of others.
There are, however, other factors which favour the respondent’s view that the relationship did not take on the characteristics of a de facto relationship. They include:
a)the lack of public recognition of the de facto relationship;
b)lack of children or registration of the relationship; and
c)the dispute over the existence of a sexual relationship.
However I am satisfied that there is evidence that supports the existence of a de facto relationship including:
·the mutual involvement in the business/es and the length of their association; and
·that they carried on a mutual enterprise of sharing income from the [businesses], markets and shared payment of expenses for their mutual support and in relation to their homes; and
·that the parties were conducting a joint bank accounts and inter-mingling of their finances; and
·the interdependence between the parties and the almost complete reliance by the respondent on the applicant for financial and other advice and administration; and
·the perception of other persons; and
·the common residence/s of the parties for significant periods of time; and
·that on balance the evidence indicates that the parties had so merged their lives that they were for all practical purposes living together as a couple on a genuine domestic basis.
When all of the considerations discussed above are taken into account
I am persuaded that the parties were in a relationship that could be described as a de facto relationship for the purposes of the Act.
The substantive proceedings will be adjourned for mention on
14 February 2013. The purpose of the mention will be to consider (subject to any application that may be made by the parties) orders for the future conduct of the matter including whether the proceedings should be referred to a Conciliation Conference or private mediation. Further, given the jurisdictional hearing took 4 days the financial complexity of the asset pool and business the parties will be asked to file submissions as to whether the matter is more appropriate for hearing in the Family Court of Australia and if the proceedings should be transferred.
For these reasons I made the declaration and orders set out at the commencement of these reasons for decision.
I certify that the preceding two hundred (200) paragraphs are a true copy of the reasons for judgment of O'Sullivan FM
Date: 18 December 2012
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