GROVER and O'DRISCOLL
[2017] FCWA 65
•24 MAY 2017
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: GROVER and O'DRISCOLL [2017] FCWA 65
CORAM: WALTERS J
HEARD: 26, 27 & 28 NOVEMBER 2014 AND 1, 2, 3, 4 & 5 DECEMBER 2014
DELIVERED : 24 MAY 2017
FILE NO/S: PTW 5149 of 2010
BETWEEN: MS GROVER
Applicant
AND
MR O'DRISCOLL
Respondent
Catchwords:
FAMILY LAW – DE FACTO RELATIONSHIP – Whether a de facto relationship existed – Where parties had purchased properties together – Evaluation of factors indicating de facto relationship – Consideration of principles in line of authority commencing with Elias & Elias (1997) FLC 90-267 referred to as the Elias Principle – Application dismissed
Legislation:
Family Court Act 1997 (WA)
Interpretation Act 1984 (WA)
Category: Not Reportable
Representation:
Counsel:
Applicant: Self-Represented Litigant
Respondent: Mr T O'Sullivan
Solicitors:
Applicant: Self-Represented Litigant
Respondent: O'Sullivan Davies
Case(s) referred to in judgment(s):
Crandall & Crandall [2009] FamCAFC 120
Dekker & Dekker [2014] FCWA 61
Elias and Elias (1977) FLC 90-267
H v P [2011] WASCA 78
Hibberson v George (1989) 12 Fam LR 725
Jordan & Jordan (1997) FLC 92-736
Lynam v The Director-General of Social Security (1983) 9 Fam LR 305
MW v Director-General of the Department of Community Services [2008] HCA 12
Truman & Clifton [2010] FCWA 91
Western Australian Police & Ferguson [2013] FCWA 95
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
Introduction
1Ms Grover] seeks both a declaration that a de facto relationship existed between her and [Mr O'Driscoll] and an alteration of property interests between them. Since any right to the latter is dependent on the former, the issue of a declaration must be first considered and, only if that is to be granted, need the question of alteration of property interests be addressed.
2Ms Grover and Mr O'Driscoll met through a dating agency in February 1999. After some initial socialising over about 6 months, they then did not have contact with one another until approximately October 2000. Ms Grover was then about 43 years of age; Mr O'Driscoll was 48. Ms Grover had two children from a previous marriage: [Child A] (then aged about 9) and [Child B] (then aged about 7). Mr O'Driscoll also had two children from his first marriage: [Child C] (then aged about 16) and [Child D] (then aged about 14).
3It is common ground that Ms Grover and Mr O'Driscoll entered into an intimate relationship, although Ms Grover said it began in November 2000 and Mr O'Driscoll said it began in early 2001 (he having separated from his second wife in November 2000). There are no children from Mr O'Driscoll's second marriage. There are no children of the relationship between the parties. During Ms Grover's relationship with Mr O'Driscoll, her children lived with her. For certain periods of time, Child D lived with Mr O'Driscoll.
4It is common ground that regular intimacy continued until the end of the relationship – which, in circumstances later explained, has been determined as occurring on 1 July 2007.
Some terms used
5In these Reasons, and unless otherwise indicated:
a)all statements of fact comprise findings of fact;
b)I have not drawn a distinction between proceedings or events before a family law magistrate and proceedings or events in the Family Court of Western Australia;
c)I have referred to all affidavits filed by or on behalf of the parties as being "sworn", even if they were affirmed by their deponents (and I note that, in a slightly different context, s 5 of the Interpretation Act 1984 (WA) provides, among other things, that "to swear" includes "to affirm");
d)unless otherwise indicated, references to legislation are references to the Family Court Act 1997 (WA) – although, when necessary, I have referred to this enactment as "the Act" or the "FCA"; and
e)I have referred to the Interpretation Act 1984 (WA) as "the WA Interpretation Act".
Background and relevant legislative provisions
6At the time of trial, Ms Grover was a [settlement agent]; Mr O'Driscoll was [a pharmacist]. When they met, Ms Grover owned and lived in a residence at [Western Suburb A], ("[Property A]"). Property A was mortgaged. She also owned a [retail business]. Mr O'Driscoll owned and lived in a residence at [Western Suburb B], ("[Property B]"), also subject to mortgage. His superannuation fund owned another property.
7Whether or not Ms Grover and Mr O'Driscoll were in a de facto relationship is primarily a question of fact. However, what constitutes a de facto relationship is described in s 13A of the WA Interpretation Act, as follows:
13A. De facto relationship and de facto partner, references to
1.A reference in a written law to a de facto relationship shall be construed as a reference to a relationship (other than a legal marriage) between 2 persons who live together in a marriage-like relationship.
2.The following factors are indicators of whether or not a de facto relationship exists between 2 persons, but are not essential —
a)the length of the relationship between them;
b)whether the 2 persons have resided together;
c)the nature and extent of common residence;
d)whether there is, or has been, a sexual relationship between them;
e)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
f)the ownership, use and acquisition of their property (including property they own individually);
g)the degree of mutual commitment by them to a shared life;
h)whether they care for and support children;
i)the reputation, and public aspects, of the relationship between them.
3.It does not matter whether –
a)the persons are different sexes or the same sex; or
b)either of the persons is legally married to someone else or in another de facto relationship.
4.A reference in a written law to a de facto partner shall be construed as a reference to a person who lives, or where the context requires, has lived, in a de facto relationship.
5....
8FCA s 205Z provides as follows:
205Z.Where court may make order under this Division
1.A court may make an order in relation to a de facto relationship only if satisfied —
a)there has been a de facto relationship between the partners for at least 2 years; or
b)there is a child of the de facto relationship who has not yet attained the age of 18 years and failure to make the order would result in serious injustice to the partner caring or responsible for the child; or
c)the de facto partner who applies for the order made substantial contributions of a kind mentioned in s 205ZG(4)(a), (b) or (c) and failure to make the order would result in serious injustice to the partner.
2In deciding whether there has been a de facto relationship between the partners for at least 2 years, the court must consider whether there was any break in the continuity of the relationship and, if so, the length of the break and the extent of the breakdown in the relationship.
3.Subsection (2) does not limit the matters the court may consider.
9FCA s 205ZG(4)(a), (b) and (c) – which are referred to in FCA s 205Z(1)(c) – are as follows:
205ZG.Alteration of property interests…
4.In considering what order (if any) should be made under this section in proceedings with respect to any property of de facto partners, or either of them, the court must take into account —
a)the financial contribution made directly or indirectly by or on behalf of a de facto partner to the de facto relationship or a child of the de facto relationship to the acquisition, conservation or improvement of any of the property of the de facto partners, or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the de facto partners or either of them; and
b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a de facto partner or a child of the de facto relationship to the acquisition, conservation or improvement of any of the property of the de facto partners or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the de facto partners or either of them; and
c)the contribution made by a de facto partner to the welfare of the family constituted by the de facto partners and any children of the de facto partners, including any contribution made in the capacity of homemaker or parent…
10Whether or not the relationship between the parties was a "marriage-like relationship", this Court has already determined that, as earlier noted, the parties' relationship (however characterised) ended on 1 July 2007. The circumstances in which that determination occurred were these: Ms Grover began proceedings in this Court on 10 September 2010 seeking orders for alteration of property interests, asserting that the relationship had ended in October 2008. Thus, on its face, the application was brought within 2 years of the breakdown of the relationship (being the time limit established in FCA s 205ZB). In Mr O'Driscoll's response, he asserted that no de facto relationship had existed and that, even if one was found to have existed, any relationship had ended on 1 July 2007, with the consequence that Ms Grover's application was out of time.
11The issue of the date on which any de facto relationship between the parties ended, came on for hearing before his Honour, Acting Judge Jordan in August 2011. At the conclusion of the hearing his Honour delivered ex tempore reasons, in which he held that the personal relationship between the parties, in whatever form it had previously existed, ended on 1 July 2007 – and that the application for property settlement was therefore out of time.
12On 17 February 2012, Ms Grover filed a fresh initiating application seeking leave to proceed out of time, a declaration that a de facto relationship had existed between her and Mr O'Driscoll, and a resultant alteration in property interests.
13The issue of whether Ms Grover should have leave to proceed out of time came before Jordan AJ in December 2012. His Honour concluded that there was prima facie evidence that a de facto relationship existed between the end of 2000 and July 2007. Consequently, he granted Ms Grover leave to proceed with her initiating application, notwithstanding that it had been filed out of time. Mr O'Driscoll appealed to the Court of Appeal (WA), but the appeal was dismissed.
14As appears above, in determining as a matter of fact whether the parties were in a de facto relationship, s l3A(2) of the WA Interpretation Act provides guidance, by listing a number of factors as indicators of whether or not a de facto relationship exists between 2 persons. However, for an application to succeed, it is not necessary that all or any one of the factors be established; unlisted factors may also be taken into account.
Structure of these Reasons
15With adaptation to the particular circumstances of this matter, the indicators provide a useful structure for consideration of the evidence and its significance. I will address the material under the following headings:
•Credibility of each of the parties.
•Time spent together, day-to-day living circumstances, each party's interaction with the other's children.
•Financial dealings with one another (other than for day-to-day costs and holiday costs) and the ownership, use and acquisition of property.
•The degree of mutual commitment to a shared life.
•The reputation and public aspects of the relationship between them.
•The conclusion overall.
Credibility of each of the parties
16Given the nature of the specific dispute before the Court, much will depend upon the credibility of each party. The following comments are based upon my observations of the parties in the witness box.
17Ms Grover presented as a somewhat theatrical and emotional woman. She was prone to exaggeration and was sometimes disingenuous with her answers. When confronted with this, she was quick to blame other people, including her previous lawyers, her bookkeeper, her accountant and even cross-examining counsel. I have no doubt, however, that – irrespective of my findings as to whether or not a de facto relationship existed – she believed (and continues to believe) that it did.
18Mr O'Driscoll presented as autocratic and authoritarian. The way he gave his evidence reinforced my view formed from his trial material that he was uncompromising and used to being treated with deference. He too could be disingenuous and, at times, glib.
19In short, neither party was an impressive witness. Consequently, I consider that the evidence of each needs to be approached with caution.
Time spent together, day-to-day living circumstances, each party's interaction with the other's children
20It is common ground that at no stage of their relationship did the parties own (either jointly or otherwise), or occupy, a single residence which they shared full-time. However, Ms Grover's affidavit evidence was that, at least in the initial stages of their relationship, Mr O'Driscoll "continued to live with me nearly every night". She added that he would go "… back to his house in Property B to get clothes, water his plants, collect mail…": see Ms Grover's trial affidavit at [117]. Later in her affidavit, she stated that they were together, mostly in her house, but otherwise in his, the "full 7 nights a week, for the 2 years after meeting each other". As to nights spent together over the entire period of the relationship, her evidence – as clarified during cross-examination – was that they comprised 4 or 5 nights per week. Mr O'Driscoll's evidence was that they spent up to 2 to 3 nights per week together, mostly at Ms Grover's residence.
21Ms Grover and her children primarily occupied three homes during the period of the relationship: Property A, [Property C] and [Property D]. These homes were all in [Western Suburb A]. She said that at an early point in her relationship with Mr O'Driscoll, and after discussing that they did not want to live apart, Mr O'Driscoll kept clothes and toiletries at her houses. A drawer in the bathroom and a chest of bedside drawers were given over for his use. She said she kept toiletries and a pillow at Property B, where her children had their own rooms set up. On the other hand, she said that, throughout the relationship, Mr O'Driscoll did his own washing at Property B, and that he had very few clothes at her houses. She explained that, as he went to check Property B most days, it was easy for him to bring clothes from there.
22Mr O'Driscoll said the only personal items he kept at Ms Grover's houses were a shaver and toothbrush, and that there was no drawer or cupboard allocated for his use. He also said that in the first year of the relationship, Ms Grover and her children stayed at Property B about once a fortnight only – and that, after about 2002, they stopped staying there at all. She kept no personal items there, other than possibly a toothbrush: see Mr O'Driscoll's trial affidavit at [57] and [58]. Ms Grover herself said that, particularly since she began in settlements in 2004, she and the children stayed at Property B less often, as the children did not like the house and it was inconvenient for their attendance at school and access to friends. She also deposed that she knew Mr O'Driscoll wished to retain Property B – to maintain stability for his children, because he liked and grew up in the area, and because it was close to his parents and siblings. Mr O'Driscoll said his father was unwell and that he provided some medical care to him.
23Ms Grover said that she and Mr O'Driscoll each had keys, codes and remote-controls to access each other's homes. She stocked the particular items he liked for breakfast in her kitchen, and each morning at breakfast they would discuss and plan the day. They talked on the phone often each day. For his part, Mr O'Driscoll denied that each had keys and access to the house of the other.
24Ms Grover further deposed that she did most of the day-to-day chores at her houses, and organised for tasks to be done by others as necessary. She also did gardening at Property B, and arranged for and facilitated work, such as tree-lopping, to be done there.
25As to the personal relationship between herself and Mr O'Driscoll, Ms Grover said that, in the early stages of their relationship, he was under great stress because of the proceedings between himself and his former wife. She added that she went to considerable lengths to treat him sympathetically. When Mr O'Driscoll had an ankle replacement in 2006, he spent about 10 days in bed at her house, and she and her children looked after him. Mr O'Driscoll acknowledged that he recovered at Ms Grover's house, but says the period was only about 3 days and he was mostly alone.
26Ms Grover said Mr O'Driscoll supported and comforted her in dealing with her former husband over division of superannuation and in respect of matters involving her children.
27She deposed to the many special occasions and festive days when Mr O'Driscoll would join her extended family and/or friends. She described Mr O'Driscoll and herself as having a very active social life and as doing many activities together on a regular basis, both away from the houses they spent time in and at those houses. She described them as frequently affectionate, both in public and privately. Mr O'Driscoll would introduce her as his partner. Although the difference about frequency of nights spent together remained, Mr O'Driscoll's evidence on the aspects referred to in this paragraph was not substantially different.
28In each of 2004 and 2005, the parties attended approximately six counselling sessions over some difficulties in the relationship. They parted for a couple of months at the end of 2005, resuming their relationship on Christmas Eve.
29The effect of Ms Grover's evidence about day-to-day living costs was that she was solely responsible for the financial support of her children and that Mr O'Driscoll did not contribute – save that he occasionally bought takeaway food or met some other expense (such as baby-sitting fees). Again, Mr O'Driscoll's evidence is not substantially different. He acknowledges that Ms Grover bought food which he consumed at her house, but says he paid when they ate out. Otherwise, there is no evidence that either party expected to have access to the income of the other. Indeed, Ms Grover acknowledged that they never discussed their respective incomes.
30As will later be detailed, Mr O'Driscoll and Ms Grover bought considerable real property together. Ms Grover said that, throughout the relationship, she and Mr O'Driscoll received mail addressed to both of them at Property B or at her homes ("whichever we thought worked best for us at the time for [Mr O'Driscoll's] tax purposes and our mortgage requirements": see Ms Grover's trial affidavit at [500]). Mr O'Driscoll agrees that some mail relating to jointly owned properties was received at Ms Grover's homes, but said his own mail was always addressed to Property B.
31As to the interaction between each party and the children of the other party, Ms Grover said that –
a)she employed Child C at [her] retail business for a time to help her acquire funds to go overseas;
b)she assisted Child C with her first house purchase, and helped organise her 21st birthday party;
c)Child D came over for meals, joined them at [Property E] and played tennis with Child B; and
d)she supported Child D when he had a drug-induced incident.
32Ms Grover described Mr O'Driscoll's involvement with her children as including sometimes driving them to the bus stop or school, attending children's sporting events and playing games with them. He was affectionate to them. Again, Mr O'Driscoll's evidence is not to deny such involvement, but to differ considerably about degree.
33The parties called witnesses in support of their respective contentions. As a witness for Ms Grover, [Ms Hooper] said that she:
a)babysat the children on several occasions while the parties went away;
b)saw Mr O'Driscoll's clothes in the cupboards; and
c)saw Mr O'Driscoll's personal belongings in the bathroom drawer and in the bedside cabinet.
34[Ms Richards] has children of similar ages to those of Ms Grover. She and her partner socialised with Ms Grover and Mr O'Driscoll, both with and without children, including on special occasions and short holidays. She said the parties were affectionate towards one another.
35Ms Grover's daughter, Child A's evidence included the following –
a)she confirmed her mother's affidavit material about the frequency of time spent with Mr O'Driscoll, keys to each other's houses, and the presence of clothing and personal items;
b)in relation to staying at Property B, she described Mr O'Driscoll as saying that staying at the two houses was what being a family was all about and that he wanted her and Child B to feel like it was now their home too, and to treat it that way;
c)sometimes Mr O'Driscoll gave her and Child B a lift to the bus stop;
d)at other times, he took them to school;
e)when she wished to change high schools, Mr O'Driscoll joined with Ms Grover in giving her advice; and
f)Mr O'Driscoll's children came to visit frequently at what Child A described as "our house".
36As to her and her brother's interaction with Mr O'Driscoll, Child A stated that they would go into the parties' bedroom in the mornings. On occasions when a present was to be received, a game was played which involved finding the hidden present.
37Ms Grover's son, Child B, said that:
a)Mr O'Driscoll kept toiletries in a bathroom cabinet and bedside drawer at Property A;
b)Child B and Child A used to stay at Property B a lot, but he did not like it;
c)Mr O'Driscoll had given them the downstairs bedrooms at Property B as their own, and they kept toiletries and school uniforms there; and
d)Mr O'Driscoll would attend some of his football matches.
38Child B gave similar evidence to Child A regarding examples of involvement in activities with Mr O'Driscoll.
39[Ms Stone], Ms Grover's mother, visited her daughter's home on many occasions, seeing Mr O'Driscoll there. She described his attendance at family gatherings and said that he told her what a wonderful partner her daughter was to him.
40[Ms Lang] had been a baby-sitter for Ms Grover's children from a time close to each child's birth. She met Mr O'Driscoll soon after the parties' relationship began. Given that her involvement was only when the parties went out (apart from attending some family occasions), her evidence throws little light on the time that the parties spent together overall.
41The evidence of [Ms Hunt] (a masseuse who gave Ms Grover fortnightly massages, and was also her friend) was of little moment.
42The evidence of [Ms Carter], Ms Grover's accountant, was also of little value on the subject of the frequency of time the parties spent together, or the other matters with which the subsection deals. The same can be said of the evidence of [Mr Smith], a builder who did some work at Property A.
43[Mr Bickley], husband of Mr O'Driscoll's sister, deposed to Ms Grover's presence with her children at O'Driscoll family Christmas celebrations. He also said he participated in many social functions with Ms Grover and Mr O'Driscoll.
44As to Mr O'Driscoll's supporting witnesses, [Mr Palmer], Mr O'Driscoll's nephew, stayed with Mr O'Driscoll at Property B from early December 2003, for about 4 months. He was then about 23 years old. He says that, during that period, he saw Ms Grover at the house on two or three occasions, but could not remember if she stayed overnight. He did not recall Ms Grover's children staying the night. He noted that Mr O'Driscoll stayed away overnight on several occasions, but added that Mr O'Driscoll stayed at Property B more often than he stayed away. Although the period about which Mr Palmer spoke was limited, and his work arrangements meant he was sometimes absent from the house until later in the evening, his evidence offers some limited support for that of Mr O'Driscoll.
45[Ms Lowe], Mr O'Driscoll's bookkeeper, met with him at Property B to work on his books on a monthly basis. She observed that all of Mr O'Driscoll's business and personal paperwork was kept in a study there. She never met Ms Grover. Although she was not cross-examined, Ms Lowe's evidence was of no real assistance with regard to the matters addressed under this heading.
46[Mr Michaels] is a friend of Mr O'Driscoll. Early in Mr O'Driscoll's relationship with Ms Grover, Mr Michaels had a discussion with Mr O'Driscoll about "not getting too serious again". He saw Mr O'Driscoll and Ms Grover together on about eight to 10 occasions. His evidence does not assist the Court on these matters.
47Finally, [Mr Wade], a close friend of Mr O'Driscoll, saw him and Ms Grover together at various social occasions between 2001 and 2007. The frequency was approximately two or three times a year. Although he deposes that he observed they maintained separate homes, and was not cross-examined, the infrequency of, and circumstances of his contact renders his evidence of little weight.
48There was little dispute between the parties about holidays and weekends or short breaks away, both with and without children. There was some disagreement about the question of whether others were present, but I am satisfied that, on all the evidence, the parties frequently holidayed or had short breaks in Australia or overseas – often with friends and other family.
49Between 2001 and 2007, the parties went on six overseas trips, taking Ms Grover's children on three occasions. On one occasion, Ms Grover paid for the business class air travel for herself and Mr O'Driscoll (using frequent flyer points) and they spent time on a yacht owned by one of her friends. Otherwise, Mr O'Driscoll paid most of Ms Grover's expenses for the overseas holidays and Ms Grover paid the expenses of her children.
50Notwithstanding that there is potential for bias in Ms Grover's children's evidence in support of her case, I accept that they gave evidence as truthfully as they could. I take into account, however, that – at least in 2001 – they saw things through the eyes of quite young children. Although there were differences in their evidence about Mr O'Driscoll's interaction with them, I am satisfied that –
a)Mr O'Driscoll was involved in their lives;
b)Mr O'Driscoll was affectionate towards them;
c)they felt close to Mr O'Driscoll; and
d)they considered him a person of significance in their lives.
51I accept that Mr O'Driscoll may well have made comments to them as to how they should feel about staying at Property B, and that those comments may well have been in the terms they described – but I do not think welcoming words to young children are of much weight in assessing the nature of a relationship between adults. In relation to the frequency with which they stayed at Property B, however, I note that neither child knew Mr Palmer, Mr O'Driscoll's nephew. This tends to confirm that their stays at Property B had decreased greatly, at least by early 2004.
52I am satisfied that each party had the ability and authority to access the residence of the other. As well, it seems improbable that Mr O'Driscoll would not have keys to Property C, of which he was part owner.
53I am also satisfied that Mr O'Driscoll kept clothes and toiletries at Ms Grover's homes, as she and some of her witnesses described.
54As to the nights that the parties spent together over the course of their relationship, I am satisfied that some of the differences between the parties' versions of events are likely to be because the time they spent together was not consistent from week to week, or over the course of the relationship.
55I accept Mr O'Driscoll's evidence that the frequency of contact diminished over time. There is agreement that, whatever time was spent by the parties at Property B, that time diminished during the relationship. On the other hand, factoring in or out the holiday time makes a difference to any calculation of average time spent together. Having regard to the very active social lives enjoyed by the parties, the extensive holidays and short breaks, and the evidence of both parties, I find that, on average, the parties spent about four nights per week together over the course of their relationship.
56In summary, I am satisfied that the parties spent a lot of time together, and that they were involved in many aspects of domestic life, such as meals and involvement in children's activities. On the other hand, there was also evidence which contraindicated that cohabitation was occurring – for example:
a)in general, Mr O'Driscoll did not perform domestic chores at Ms Grover's houses;
b)for the most part, finances in relation to the parties' respective residential premises and their day-to-day living costs were kept separate;
c)neither party expected to share in the income of the other;
d)Mr O'Driscoll never kept his wardrobe at Ms Grover's premises, except for minimal clothing;
e)Mr O'Driscoll's wish to maintain Property B was firm, and was known to Ms Grover (he kept his office there, his personal mail went there and he spent time there almost daily); and
f)the parties had no joint medical insurance and made no testamentary provision for each other (even in the form of a life tenancy in a residential property).
Financial dealings with one another (other than day-to-day costs and holiday expenses) and the ownership, use and acquisition of property
57In mid-2001, Mr O'Driscoll was engaged in family law proceedings in relation to his prior marriage. During that period, Ms Grover provided Mr O'Driscoll with $20,000, to pay tax. He listed that sum as a liability in those proceedings. Ms Grover has never asked for the money back and her evidence was that Mr O'Driscoll had not repaid it. However, exhibit R34 comprises a bank statement showing a payment of $30,000 on 11 March 2002. Notations made on the statement describe it as having been paid to [the] retail business and to Ms Grover. In all the circumstances, I find that the loan was probably repaid.
58The first property that the parties became involved in together was at [Southwest Suburb A]. Ms Grover and her former husband had previously owned a property there and, when proceedings for division of their superannuation came about in early 2002, Ms Grover, in anticipation of funds, contracted to buy Property E for $685,000. The contract was in her name "and/or nominee". Her intention was to nominate her superannuation fund. It became apparent, however, that Ms Grover would not be able to access the funds before settlement. In these circumstances, Mr O'Driscoll agreed to become a half-owner. Ms Grover said he was keen to be involved and looked forward to personal use of the property for them and their respective families. It is common ground, however, that the property was purchased as an investment – for personal use at times, but to be rented out at other times. On settlement, the parties became the registered proprietors as tenants in common in equal shares.
59In order to fund the purchase of the Property E, the parties borrowed $800,000 from NAB. The borrowing was in joint names. Ms Grover said the deposit was provided jointly. Mr O'Driscoll said that he paid the deposit of $10,000. In this regard, the bank statement comprising exhibit R34 shows a payment of $10,000 to "[retail business]" notated as "Deposit" and "[Property E]".
60Ms Grover had her former lawyer prepare an agreement in relation to the Property E purchase. On 4 May 2002, the parties executed the agreement: see annexure 16 to Mr O'Driscoll's trial affidavit. Recital B of that agreement stated:
This Deed sets out the parties' rights in relation to the Land if at any time the parties' relationship comes to an end.
61Under the heading "AIM", appeared the following:
The object of purchasing the property is to maximise rental income. By mutual agreement we will agree to use a management agent to rent the property. If the management agent does not have the property rented, then either party has the opportunity to utilise the property at a nominal rate of $50.00 per night to cover expenses.
62There were provisions for each party to have right of first refusal in relation to the acquisition of the other's share, methods for determining price and, if necessary, ultimate sale.
63Rent received from the Property E was deposited into a joint NAB account ("the joint account"), which both parties could operate and manage. The income was applied in repayment of the NAB home loan, the parties otherwise paying any balance of repayments due, in equal shares. The parties arranged for renovations to the house to be carried out.
64I do not see that this agreement assists in the characterisation of the nature of the parties' relationship. The cessation of a personal (or arms-length) relationship of any nature could likely lead people owning a residential investment property together to provide for resolution if that relationship broke down – particularly if a party wished to ensure that he or she could continue to use the property in the future. Taken in isolation, I do not consider that the circumstances to which I have referred provide any more than minimal support for Ms Grover's case. She had intended to buy the property for herself (through or in conjunction with her superannuation fund), and Mr O'Driscoll only became involved in the manner I have described.
65In or around June 2003, Mr O'Driscoll bought a unit in [Southwest Suburb B], [Property F], for $540,000. There is nothing about this purchase, in itself, that supports Ms Grover's case – but Ms Grover deposes that she set up the unit as a holiday rental. In this regard, Mr Bickley said that Mr O'Driscoll told him and his wife (over a couple of conversations) that Ms Grover could do the set up in her own style. I accept that this comment was made, and that it provides some evidence of the closeness and mutual involvement of the parties at that time.
66In or around February 2004, Ms Grover purchased a property in [Western Suburb C] [Property G], for $565,000. She purchased 40% of Property G in her own right; her superannuation fund purchased the remaining 60%. As with the purchase by Mr O'Driscoll discussed in the preceding paragraph, this purchase demonstrates, at the least, that the parties' affairs were not so enmeshed that they deemed it appropriate to make all property purchases jointly.
67In April 2004, Ms Grover obtained a Settlement Agent license, and began work for an agency. Shortly after, she sold Property A for $1,235,000, of which $680,000 was placed in a Commonwealth Bank Term Deposit.
68Ms Grover then turned her attention to locating another residence. She said that she and Mr O'Driscoll looked around, considering the possibility of renting together. At that time, however, Mr O'Driscoll's income had increased substantially and he "needed more tax losses": see Ms Grover's trial affidavit at [231]. Ultimately, Ms Grover found a suitable property at a competitive price. Notwithstanding her remarks about Mr O'Driscoll's position, Ms Grover initially contracted to purchase the property in her own name: see Exhibit R22. According to Mr O'Driscoll, Ms Grover told him she could not afford the property alone. As a result, they agreed to each provide half the money – on the basis that Ms Grover would eventually buy him out. Thus, in November 2004, the parties contracted to purchase Property C for $925,000. Including stamp duty and settlement costs, the total purchase price amounted to approximately $955,000. Ms Grover said that the deposit (being $5000) was paid by the parties equally. Mr O'Driscoll said that the deposit was $15,000, and that he paid it in the first instance. Ms Grover later paid him her half share. Ms Grover provided $477,000 towards the purchase price from the funds held in the Term Deposit. In addition, $500,000 was borrowed from the Commonwealth Bank. Property C was registered in the parties' names as tenants in common in equal shares.
69On 18 April 2005, the parties entered into an agreement relating to Property C. This agreement (being annexure 9 to Mr O'Driscoll's trial affidavit) is similar to the agreement relating to Property E. Under the heading "AIM" appears the following:
The object of purchasing the property is to provide a primary residence for [Ms Grover] and an Investment opportunity for [Mr O'Driscoll]. By mutual agreement [Ms Grover] and [Mr O'Driscoll] agree that [Ms Grover] is to pay a reasonable rent to [Mr O'Driscoll] for her exclusive use of the property.
70The operative part of the agreement provided for disposal of Property C on separation, determination of rent in the absence of agreement and for a Residential Tenancy Agreement covering payment of outgoings in respect of the property.
71From February 2005 to September 2005, Ms Grover paid rent to Mr O'Driscoll at the rate of $150 per week – the appraised market rent of Property C being $300 per week. In September 2005, Ms Grover paid Mr O'Driscoll $527,118 for his share of Property C. In order to do so, she borrowed $550,000 from the Commonwealth Bank. The borrowing was secured by way of a mortgage over Property C. Mr O'Driscoll guaranteed the loan.
72To the extent that Ms Grover's evidence suggested that part of the motivation for the purchase of Property C was as a home for the parties and her children, the transactions relating to it do not support that suggestion. They are much more consistent with Mr O'Driscoll's account.
73In about April 2006, the parties contracted to purchase two adjoining parcels of land in [Southwest Suburb C], [Property H]. The purchase price for the first property was $465,000; the purchase price for the second was $500,000. A deposit of $10,000 was paid, and $1,115,000 was borrowed from NAB. It is common ground that [these] properties were bought as an investment. They were registered in the names of the parties as tenants in common. Loan repayments for [these] properties were made from the joint account.
74Ms Grover said that, in early 2006, "we" decided to demolish and rebuild Property C "as our new family residence...". Whether or not the decision was jointly made, it meant that Ms Grover would have no alternative but to vacate the property. In May 2006, Ms Grover purchased Property D for $1,900,000. She said that it was purchased for her and Mr O'Driscoll to live in while Property C was demolished and rebuilt "… to move back into, to be our new family home": see Ms Grover's trial affidavit at [484]. In her affidavit sworn 8 March 2011 at [123], Ms Grover said that Property D was purchased as an investment, and for her children and herself to live in while Property C was demolished and rebuilt. Under cross-examination, however, she said this was an error (for which she blamed her solicitor).
75In relation to the acquisition of Property D, Ms Grover paid a deposit of $10,000. The balance of the purchase price was provided by St George Bank and secured by mortgage. Ms Grover said that, at his insistence, Mr O'Driscoll was included on the contract as nominee in case he was needed as a guarantor. Mr O'Driscoll denied any knowledge of such an arrangement. In my opinion, it is unnecessary to make any clear findings in relation to this issue. The actual circumstances of the purchase of Property D do not support a conclusion to the effect that it was intended to be a "joint" home.
76Ms Grover extensively renovated Property D.
77The parties purchased one further property together: a residence on the river at [Western Suburb D], [Property I]. Ms Grover said that Property I was purchased because the parties' relationship had become unsettled and because, in that context, Mr O'Driscoll had said that he was feeling like a gypsy. She asserted that Mr O'Driscoll insisted she find a house on the river in [Western Suburb D] to call their own. She also asserted that he said they would get married: see Ms Grover's trial affidavit at [424].
78In any event, on 22 April 2007, the parties entered into a contract to purchase a three-bedroom home at Western Suburb D, Property I. The purchase price was $4,500,000, with stamp duty of something in the order of $235,000. In order to fund the purchase, a deposit of $30,000 was paid jointly – and $5,600,000 was borrowed from the Commonwealth Bank (in joint names). The borrowing comprised two loans of $2,500,000 each, and a third of $600,000. The Bank described the loans as comprising an Investment Home Loan and arranged for the total borrowing to be secured over Property I, Property C and Property B. The initial contract for sale provided Property I to be leased back to the vendors for a minimum of 12 months.
79Mr O'Driscoll said that he never wanted to live on the river. The Property I purchase came about because Ms Grover became aware that the property was to come on the market. She said it was a "steal" at $4.5 million, as her colleague or colleagues had valued it at around $6 million or more. She said it could potentially be sold within a few years for $9 million to $12 million. Mr O'Driscoll said that he was greatly concerned at the large sum of money involved, but was reassured by Ms Grover's confidence in Property I's investment potential. The plan was to keep Property I for about 3 years, rent it out during that time, and then sell. Mr O'Driscoll said that it was for this reason that pre-paid interest-only loans were utilised. He also said the separate loan for $600,000 was for the purpose of covering the loan repayments on the other two loans (of $2,500,000 each) for a period of three years.
80Some weeks before settlement was to occur, the parties’ relationship ended. Mr O'Driscoll said Ms Grover telephoned him to inquire if he still wished to go ahead with the purchase and that they decided to proceed.
81The issue of each party's motivation for the purchase of Property I was the subject of evidence from Ms Grover's supporting witnesses. The most significant in this regard was the evidence of [Mr Marciano], who was the mortgage broker who arranged the loans. During the course of cross-examination, Mr Marciano was unable (on occasions) to specify which party said what, but, in all the circumstances, I am satisfied that his recollection of the effect of what was said was accurate. He was under the impression that, eventually, the parties would move into Property I together. Similarly, he understood that Mr O'Driscoll would sell Property B and, when renovations of Property D were complete, Ms Grover would sell Property D. The 3 years loan arrangement was set up to allow these things to happen.
82Ms Richards drove past Property I with Ms Grover and Mr O'Driscoll. She deposed that he "wanted to live on the river". Ms Grover's children corroborated Ms Richards' evidence in this regard.
83I accept that, in broad terms, the circumstances relating to the acquisition of Property I were as described by Ms Grover. I also accept that there was some discussion between the parties about marriage, though not necessarily a proposal.
84Four other matters in relation to the above property purchases are worthy of mention:
a)Ms Grover said that her bookkeeper did all the work in relation to properties (at her cost). She also said that her accountant did the necessary work for tax returns, forwarding the information to Mr O'Driscoll's accountant.
b)In support of her case, Ms Grover points to the degree of her involvement, as opposed to that of Mr O'Driscoll, with the myriad of tasks associated with renovations to Property E, Property C and Property D. As two of those properties were her own, I give little weight to her submission in this regard – notwithstanding her assertions that the renovations were partly to do with a mutual desire to make the properties "their" homes. Further, and having regard to the evidence of Mr Cooper (who carried out the renovations at Property E), I am satisfied that her involvement in the Property E renovations provides little or no support to the proposition that she and Mr O'Driscoll were in a de facto relationship.
c)All the jointly purchased properties were registered in the parties' names as tenants in common. None of them was a joint tenancy. Ms Grover maintained that she did not appreciate the distinction until the parties purchased Property I. I do not accept her evidence in this regard. I find that it is highly unlikely that a settlement agent (or anyone with Ms Grover's commercial or settlements acumen and/or experience) would not be aware of the distinction between a tenancy in common and a joint tenancy.
d)When their relationship ended, the parties obviously remained involved in joint real estate ownership and mortgage commitments. The years between separation and trial have been punctuated by attempts to extricate themselves from their loan commitments, and from the intermingling of their finances in this regard. These attempts have included litigation. In my opinion, however, none of the evidence relating to such matters helps to shed light on the question of whether the parties were in a de facto relationship at the relevant time.
85I turn now to the question of what – in a broad sense – the parties' real estate dealings either imply or demonstrate was the nature of their relationship.
86In my opinion, and taking into account the evidence of both parties and their witnesses, each party – as an investor – offered the other party something that he or she lacked. Put another way, Ms Grover contributed her knowledge of settlements and the [property] industry, while Mr O'Driscoll contributed his significant income and reliable earning capacity.
87The provision of $20,000 by Ms Grover to Mr O'Driscoll early in their relationship is equivocal in its implications. I am not confident in my ability to categorise the parties' relationship at that early stage. Still, and while it is true that a girlfriend might lend money to a boyfriend, I am of the view that this evidence tends to provide greater support for Ms Grover's categorisation of the relationship than it does for Mr O'Driscoll's categorisation of the relationship.
88I place little weight, one way or the other, on the fact that properties were purchased by the parties as tenants in common, and not as joint tenants. Inferences that joint tenancies favour a finding of a marriage-like relationship would seem to depend on the relationship being one in which a party has no other dependants beyond the de facto spouse himself or herself (or, at least, one in which a de facto spouse regards himself or herself as dependent upon the other de facto spouse). Any inference to be drawn from the acquisition of property as tenants in common (as opposed to joint tenants) is significantly diminished where the de facto spouses have children from a previous relationship or previous relationships. Moreover, during their relationship (however characterised), each party – independently – was of considerable means and income. In the present circumstances, I would not draw any inference for or against the existence of a de facto relationship on the basis of the parties' style of property ownership. Relevantly, I am not satisfied that the fact that properties were owned by the parties as tenants in common, as opposed to joint tenants, advances Mr O'Driscoll's case.
89Although I accept that the parties had significant financial dealings with each other, I am not persuaded that the nature of their financial relationship – up to the purchase of Property I – serves to support or reinforce Ms Grover's case. On the other hand, and as I have said, I accept that Property I was purchased as a joint residence – and that this involved the proposed sale of the then solely-owned residences of each of the parties, at least within 3 years. Whatever might be said about the nature of the parties' relationship to that time, the purchase Property I and its consequences represented a significant escalation in their commitment to that relationship – particularly on Mr O'Driscoll's part. But if the correct categorisation of the parties' relationship before the Property I purchase is that it was not a de facto relationship, and the correct categorisation following the Property I purchase is that it was a de facto relationship, Ms Grover's case is not assisted. The fact of the matter is that the parties separated within weeks of settlement.
The degree of mutual commitment to a shared life
90The degree of commitment to a shared life of each of the parties might be implied by actions, including words spoken between the parties or to others. The evidence contains a number of examples.
91Mr Smith is a builder who carried out work on Property B in 1998. He was contacted in the first half of 2001, after Mr O'Driscoll and Ms Grover discussed alterations to Property A (to gain more separation between the main bedroom and the other bedrooms). He said that he met with Mr O'Driscoll and Ms Grover at Property A. They explained that each wanted his/her children to be able to reside there. Mr O'Driscoll participated in those discussions, and in the process that followed. For example, he made some changes to the plans. I accept Mr Smith's evidence. In my opinion, this involvement on Mr O'Driscoll's part is inconsistent with a mere boyfriend/girlfriend relationship in its early months. On the other hand, it does not necessarily imply that Mr O'Driscoll wished to live at Property A exclusively.
92In or about 2002, Mr O'Driscoll signed an application for enrolment of Ms Grover's daughter at [a Perth High School]. Under the section for Father's Name, Mr O'Driscoll crossed out the heading and wrote instead "Mother's Partner/Guardian". His choice of words is important, and I give weight to it.
93In 2002, Mr O'Driscoll told staff on a cruise ship that he and Ms Grover were newly married and were on their honeymoon. This seems to have led to their cabin being decorated. The representation was completely untrue, however, and, in my opinion, says nothing about the parties' real relationship with or degree of commitment to each other.
94Ms Grover's evidence also included the following:
a)Her family lawyer rang her in 2002 and told her that, under new laws, she and Mr O'Driscoll would be regarded as a de facto couple. When she told this to Mr O'Driscoll, who was present, he said "great": see Ms Grover's trial affidavit at [175].
b)At a time which appears to be about mid-relationship, Mr O'Driscoll found an article in the Financial Review about de facto couples with two residences. The article also dealt with the taxation consequences of such an arrangement. The parties discussed the article and agreed that Property B would be a very good investment for both of them until they had to address the tax implications.
c)Mr O'Driscoll"… would often say our future life would be filled with choices for travel and places to live especially once the children had all grown up": see Ms Grover's trial affidavit at [190].
d)After Mr O'Driscoll had behaved poorly during an overseas holiday in 2003, he took her to dinner and asked her to marry him. In my opinion, however, her evidence dealing with her response to the proposal was vague and inconsistent. For example, she may have said "okay", but she may also have added that she already considered herself married. It appears that she told her parents shortly afterwards that she and Mr O'Driscoll were to be married. Ms Grover's daughter deposed that Ms Grover told her she and Mr O'Driscoll planned to marry as soon as possible – but it is not clear when Ms Grover allegedly made the comment.
e)After she sold Property A in May 2004, Mr O'Driscoll said this "… was a great opportunity for the children and me to continue to live in [Property B] on a full time basis in the one house with him there as a family": see Ms Grover's trial affidavit at [219]. For various reasons, however, she did not wish to live there.
f)Mr O'Driscoll promised to support her in financial matters. The statement was made on Christmas Eve 2005, immediately after when the parties' short separation ended.
95Mr O'Driscoll said that at no time did he ask Ms Grover to move in to Property B to live with him, and at no stage did she live with him there: see Mr O'Driscoll's trial affidavit at [54].
96Mr O'Driscoll also denied ever asking Ms Grover to marry him. This denial was not challenged in cross-examination.
97Exhibit 17 comprises an affidavit sworn by Ms Grover in March 2011. In paragraph 33 of the affidavit, she deposes that Mr O'Driscoll had asked her to marry him on a number of occasions, but that she had never accepted his proposals.
98I have discomfort with the evidence of both parties in relation to the subject of marriage proposals. Relevantly, I do not accept the evidence of either party in its entirety. I do not wish to speculate in relation to this subject, or to involve myself in what may amount to little more than mere conjecture. Taking into account all of the circumstances established by the evidence (and, in particular, the evidence relating to the parties' relationship in the broadest sense), I am satisfied – on the balance of probabilities – that Mr O'Driscoll did indeed ask Ms Grover to marry him on one or more occasions (including on their overseas holiday). I am not satisfied, however, that Ms Grover was ever minded to accept the proposal. I find that the only reasonable inferences to be drawn from the evidence presented to the Court are that:
a)any marriage proposals made by Mr O'Driscoll were in the context of attempts on his part to placate Ms Grover at times of stress or comparative stress within their relationship; and
b)Ms Grover did not regard them as serious or genuine marriage proposals – or, if she did, she had reservations about accepting such proposal (and hence, about marrying Mr O'Driscoll).
99I accept that it is likely that the parties discussed marriage at times, in a variety of contexts. The fact of the matter is, however, that the parties never married.
100I also accept that much of Ms Grover's evidence regarding the parties' discussions about their commitment to each other is likely to be broadly accurate. There is a significant gap, however, between what the parties may have said to each other and what they did. For example, during the existence of what Ms Grover asserts was a de facto relationship, she filed annual tax returns which provided for the nomination of the spouse of the taxpayer. Ms Grover did not nominate Mr O'Driscoll as her spouse in those returns. She said that the returns were prepared by her accountant, Ms Carter, and that she simply signed them without checking the content. I reject Ms Grover's evidence in this regard. I find that she well knew that Mr O'Driscoll was not nominated as her spouse in her tax returns. I am not prepared to find, however, that she wilfully misled the Australian Taxation Office as to her relationship with Mr O'Driscoll. Instead, I find that, in reality, she did not regard Mr O'Driscoll as her spouse (de facto or otherwise).
101It was argued that by virtue of the "Elias Principle", Ms Grover should be bound by the representations that she had made to the Australian Taxation Office (to the effect that she was not in a de facto relationship).
102I discussed the "Elias Principle" in some detail in my earlier decision in Dekker & Dekker [2014] FCWA 61. I do not intend to repeat that discussion, but for present purposes it will suffice to record that the "Elias Principle" has its origins in the first instance decisions of Goldstein J in Elias and Elias (1977) FLC 90-267. It was revisited by the Full Court in Crandall & Crandall [2009] FamCAFC 120, where their Honours (Bryant CJ, Thackray and Bennett JJ) said:
80.In the absence of detailed submissions and reference to authority we consider it unnecessary to discuss in detail the parameters and application of the "Elias principle". A scholarly dissertation is to be found in Jordan & Jordan (1997) FLC 92-736 where Chisholm J (at 83,927) posited the following as representing the "Elias principle":
When a party has made representations of fact to third parties and has gained advantage from so doing, it is open to the court in subsequent proceedings under s 79 of the Family Law Act to decline to accept from that party evidence which contradicts those representations.
81.It will be observed that the "Elias principle", as formulated above, does not represent an inflexible rule. Rather, it imports a discretion permitting the Court to exclude certain evidence…
103The question of whether or not Ms Grover was in a de facto relationship with Mr O'Driscoll during the years from approximately 2001 to mid-2007 is not some form of incidental, subsidiary or ancillary issue or cause – it is, in every sense, her primary "cause of action". To exclude what could amount to the totality of Ms Grover's evidence in support of her primary cause of action would be a drastic step. Although there is a significant amount of evidence which corroborates her version of events (and, of course, much that does not), Ms Grover's evidence remains critical. Moreover, and given the financial activity the parties engaged in, there exists the possibility of a substantial alteration of property interests being made in favour of one party or the other. In view of the severity of the consequences flowing from an application of the "Elias principle", and bearing in mind –
a)my lack of preparedness to find that Ms Grover wilfully misled the Australian Taxation Office as to her relationship with Mr O'Driscoll; and
b)my finding that, in reality, she did not regard Mr O'Driscoll as her spouse (de facto or otherwise),
I decline to exclude Ms Grover's evidence in support of a de facto relationship because of or arising out of the omissions in her tax returns.
104As to the understanding of each party of the degree of commitment of the other to their relationship, Mr O'Driscoll described Ms Grover as someone who "provided a lot of fun" and "some intimate moments over weekends ... and relief from the stressful job [he] had", but with whom he had no intention of having a long-term relationship. Not surprisingly, he acknowledged that he never communicated this to her – despite being aware that she considered herself to be in a long-term, committed relationship with him. More surprising is the fact that Ms Grover's acknowledged in her evidence that she was aware of Mr O'Driscoll's lack of commitment, and that it was an issue in their relationship.
The reputation and public aspects of the relationship between the parties
105Mr O'Driscoll said that he and Ms Grover were known among their many friends as being in a boyfriend and girlfriend relationship. There was little support for this proposition among other witnesses.
106Mr Marciano said that the parties made decisions "as a couple", and that they were always together when they were making these decisions or applying for applications.
107Ms Grover's witnesses, Ms Hunt, Ms Richards, Mr Bickley and [Ms Jones] deposed to regarding Ms Grover and Mr O'Driscoll as "a couple", as "building a life together", and as "planning to marry".
Conclusion
108As noted at the outset, what constitutes a "marriage-like" relationship may differ according to the circumstances of each case. Consequently, no single factor listed under s 13A of the WA Interpretation Act is necessarily decisive, and a decisive factor may be not among those listed. Thus far, the evidence as to each relevant factor has been discussed; it is necessary, however, to address the overall effect of the totality of the evidence.
109In his dissenting judgment in MW v Director-General of the Department of Community Services [2008] HCA 12 ("MW"), Gleeson CJ dealt with the subject of what may or may not constitute a de facto relationship at some length (most references and footnotes omitted):
10.[There is a difference] between living together and living together "as a couple in a relationship in the nature of marriage or civil union". The relationship between two people who live together, even though it is a sexual relationship, may, or may not, be a relationship in the nature of marriage or civil union. One consequence of relationships of the former kind becoming commonplace is that it may now be more difficult, rather than easier, to infer that they have the nature of marriage or civil union, at least where the care and upbringing of children are not involved. ...
11.When divorce, for various reasons, was more difficult, in former times, de facto relationships often existed because there was an impediment to legal marriage. A common impediment was a subsisting marriage of one of the parties. Marriage, in Australia and New Zealand, involves legal requirements of formality, publicity and exclusivity. A person may be a party to only one marriage at a time. De facto relationships, on the other hand, do not involve these elements. They are entered into, and may be dissolved, informally. In Australia, marriages are required to be entered on a public register. In New Zealand, marriages and civil unions must be registered. Parties to marriages and civil unions do not have a choice as to whether, when and by what means they will disclose their status to the public. It goes without saying that there is no mandatory public registration of sexual relationships, even if they involve cohabitation. De facto relationships may co-exist with the marriage of one or both parties and, at least in some circumstances, people may be parties to multiple de facto relationships. Yet the law to be applied in this case acknowledges that some are, and some are not, in the nature of marriage. How is the difference to be determined? No single and comprehensive answer to that question can be given, but there is one test that is applicable to the present case.
12.In Stack v Dowden [2007] 2 AC 432 at [45]; [2007] 2 All ER 929 at 945, Baroness Hale of Richmond said:
Cohabitation comes in many different shapes and sizes. ... But increasing numbers of couples cohabit for long periods without marrying and their reasons for doing so vary from conscious rejection of marriage as a legal institution to regarding themselves "as good as married" anyway ...
13.... [In] Australia, what often prompts cohabiting couples to marry is a decision to have a child, and to do so within the context of a marriage. People often refer to this as "starting a family". The cohabiting parties to many relationships, especially first relationships of the “short-lived and childless” kind, may be surprised to be told that they are involved in a relationship in the nature of marriage or civil union. They may intend no such thing. The same may apply to some people in longer-term cohabitation who have chosen not to marry. It is the common intention of the parties as to what their relationship is to be, and to involve, and as to their respective roles and responsibilities, that primarily determines the nature of that relationship. The intention need not be formed in terms of legal status: to some people that is important; to others it is a matter of indifference. ... The intention may be expressed, or it may be implied. What is relevant is their intention as to matters that are characteristic of a marriage or a civil union, but that do not depend upon the formal legal status thus acquired. To describe a relationship as being in the nature of marriage implies a view about the nature of marriage. ... It is unnecessary, for present purposes, to attempt a comprehensive account of the features of a relationship that might justify such a description. Plainly, "living together" is not enough. For present purposes it is sufficient to focus upon that aspect of the relationship between the appellant and the father that gives rise to this dispute, that is to say, shared parenthood, and upon the inferences as to intention that may be drawn from that.
14.... There is a wide range of human behaviour across the spectrum between a sexual encounter and a marriage or civil union. It includes relationships which could never be described as being in the nature of marriage or civil union. Nevertheless, when a sexual union results in the birth of a child, cohabitation between the parties to the union is no longer a matter of purely personal convenience or satisfaction. The interests of a third party have intervened. Traditional concepts of marriage and the family as institutions for the protection of children, and modern concepts of shared parental responsibilities even in the absence of a formal union, may come into play in characterising the relationship. ...
110In Truman & Clifton [2010] FCWA 91 ("Truman"), Thackray CJ was required to consider whether parties lived in a de facto relationship. The question was posed, as it is in these proceedings, in the context of whether the Court had jurisdiction to entertain an application for property settlement under the provisions of the FCA. Thus, the Chief Judge was obliged to consider the provisions of s 13A of the WA Interpretation Act.
111After citing the passages from the decision of Gleeson CJ in MW to which I have referred above, the Chief Judge said:
347.The Parliament of Western Australia provided no definition of "marriage" when enacting the legislation which defines a de facto relationship as being "marriage-like". There would be little point in doing so, given that to come within the definition a relationship needs only to be "like" a marriage, and is thus inherently an elastic concept. Nevertheless, the formulation does require a judge administering the law to reflect on the nature of marriage. In reflecting, the judge is directed to consider the list of factors contained in the Interpretation Act 1984. The utility of the list is nevertheless to some extent limited, as the legislation makes clear that the existence of each of the factors is not "essential" to the existence of the relationship.
...
355.... I have to say I do not consider it is in the accepted nature of a marriage for every important financial transaction between a couple to be formally documented. It is not in the accepted nature of a marriage for a man to use prostitutes (or to tell people he uses prostitutes) at the same time he claims to have committed to a woman for life. It is not in the nature of a marriage for a man to carry on a relationship behind the back of a woman who he knows has been faithful to him. It is not in the nature of a marriage for a couple to spend what they regard as a most significant occasion every single year apart from the other. Arguably it is also not in the nature of a marriage for a couple voluntarily to spend as much time apart from each other as this couple did. This relationship lacked the commitment to a shared life that characterises marriage. I am also not persuaded that the relationship was seen by those who knew them as being "marriage-like". On the contrary, many wondered why they were together at all.
112The Chief Judge's reference to "commitment to a shared life that characterises marriage" is, of course, a reference to s 13A(2)(g) of the WA Interpretation Act – which records "the degree of mutual commitment by [the parties] to a shared life" as an "indicator of whether or not a de facto relationship exists". The section makes it perfectly clear, however, that that indicator is "not essential" in determining whether a de facto relationship exists. It follows that a commitment to a shared life is not a necessary prerequisite to a finding that a de facto relationship existed.
113MW and Truman were referred to by the WA Court of Appeal in H v P [2011] WASCA 78 ("H v P"), where their Honours (Pullin, Buss and Murphy JJA) said:
55.As Gleeson CJ's observations indicate, although there may be a number of factors which suggest that a relationship is 'in the nature of marriage' or 'marriage-like', in the end, what is required is an overall assessment of the facts and of all the relevant elements of the relationship. In the Federal Court case of Lynam v The Director-General of Social Security(1983) 9 Fam LR 305, the court considered whether a man and a woman were living together 'as husband and wife on a bona fide domestic basis'. Fitzgerald J said (131):
Each element of a relationship draws its colour and its significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.
...
56.Just as it is difficult to discern when a relationship between two people can properly be said to be 'marriage-like', it can be equally difficult to determine when such a relationship comes to an end. In this respect, there is an important distinction to be drawn between a de facto relationship and a legal marriage. Unlike a legal marriage, which continues despite the absence of any 'marriage-like' characteristics in the relationship, until it is formally dissolved by legal process, a de facto relationship is inherently terminable at any time, and continues to exist only insofar as the indicia which give the relationship its 'marriage-like' character continue to exist. In Hibberson v George(1989) 12 Fam LR 725, Mahoney JA spoke of the distinction between a legal marriage and a de facto relationship, where he said:
There is, of course, more to the relevant relationship than living in the same house. But there is, I think, a significant distinction between the relationship of marriage and the instant relationship. The relationship of marriage, being based in law, continues notwithstanding that all of the things for which it was created have ceased. Parties will live in the relationship of marriage notwithstanding that they are separated, without children, and without the exchange of the incidents which the relationship normally involves. The essence of the present relationship lies, not in law, but in a de facto situation. I do not mean by this that cohabitation is essential to its continuance: holidays and the like show this. But where one party determines not to 'live together' with the other and in that sense keeps apart, the relationship ceases, even though it be merely, as it was suggested in the present case, to enable the one party or the other to decide whether it should continue.
57.It follows that when a party to a de facto relationship determines that they no longer wish to live in a 'marriage-like' relationship and conducts their life on that basis, the de facto relationship comes to an end.
114As I said in Western Australian Police & Ferguson [2013] FCWA 95, there is a very real danger, it seems to me, of "losing sight of the wood for the trees" in cases of this nature. The lists of criteria or indicators that appear in provisions such as s 13A of the WA Interpretation Act are useful guides to the types of matters that might help determine the nature of a relationship, but they are no more than that. The presence or absence of any particular factor or indicator is not necessarily determinative of the issue. After all, it should not be overlooked that marriages, no less than de facto relationships, come in many shapes and sizes: some are sad and loveless arrangements (sometimes from the outset); some are entered into for the convenience of the parties; some involve a decision on the part of the spouses that they will live in an "open" relationship" (and actively seek other sexual partners); some involve a strict separation of the spouses' finances (and, perhaps, a formal pre-nuptial financial agreement). Thus, I suspect that not everyone would agree with the list of disqualifying factors (for want of a better description) set out in Truman at [355] (see above), and that most – if asked to comment – would respond: "It depends…"
115Although Ms Grover and Mr O'Driscoll disagree about when their relationship commenced, in the context of a relationship of nearly six years (less a couple of months on account of the separation in 2005), the difference is of little consequence. Their relationship (however characterised) extended over a substantial period of time.
116In my view, the findings I have made about the amount of time the parties spent together, their day-to-day living circumstances and the interaction of each party with the children of the other are, overall, equivocal on the point of whether the relationship was "marriage-like". I draw much the same conclusion about the parties' financial transactions (other than in relation to Property I) – although, if anything, the weight of the evidence supports a conclusion to the effect that the parties elected to keep their financial affairs separate.
117As to the reputation and public aspects of the relationship, I accept the evidence of Ms Grover's witnesses, who regarded her and Mr O'Driscoll "as a couple". I am well aware, however, that those witnesses based their opinions on what they observed. None has had access to the extensive accounts of all aspects of the parties' lives which have been placed before the Court; nor, of course, is it suggested that those witnesses' descriptions of the parties as a couple take account of the law as to the existence of a de facto relationship.
118The most troublesome consideration (from Ms Grover's point of view) relates to each party's degree of mutual commitment to a shared life. As I have said, I accept that Ms Grover was committed to a shared life with Mr O'Driscoll. I am unable to conclude, however, that Mr O'Driscoll was similarly committed to Ms Grover. I accept that from time to time he made statements implying or to the effect that he and Ms Grover were in a de facto relationship (and that he was committed to the relationship in the long term). On the other hand, I find that he frequently, and probably always, lacked commitment to a shared life with Ms Grover. It is difficult to discern whether he –
a)fluctuated between inconsistent but genuinely held views regarding his commitment to a shared life;
b)was content to simply mislead Ms Grover about his intentions; or
c)did nothing to disabuse Ms Grover of her misunderstanding or misapprehension regarding his true feelings,
but I am firmly of the view that the first of these alternatives is far less likely than the others.
119In any event, until the Property I purchase nothing changed in the way the parties conducted their lives. Ms Grover well knew of Mr O'Driscoll lack of commitment, and it was an issue between them. It is clear from the passages from MW referred to above that an intention to be involved in a de facto relationship is not essential if one conducts oneself as if one is in such a relationship (or in a marriage-like relationship). Conversely, a relationship may not be a de facto relationship (or a marriage-like relationship) even if one party occasionally agrees that he or she is involved in such a relationship.
120The bottom line is that the onus is on Ms Grover to persuade the Court of her case. As the Court of Appeal said in H v P at [58]:
Unlike a legal marriage, which is presumed to continue until a party can prove that the marriage has broken down for the purpose of legally dissolving the marriage, in the case of a de facto relationship, it is the party asserting the continuance of the de facto relationship that must positively prove the existence of its defining characteristics, rather than being required to prove the negatives
121I am not satisfied that Ms Grover has discharged that onus. Put another way, I am not satisfied that the evidence presented to the Court, including in relation to the words and actions of Ms Grover and Mr O'Driscoll, demonstrates the existence of a de facto or marriage-like relationship between them. Further, I am not satisfied that the evidence demonstrates the existence of the defining characteristics of a de facto or marriage-like relationship between the parties.
122Sometimes, when a judge decides a preliminary point which is dispositive of a matter, that judge will go on to decide the other issues that would fall for consideration if the decision on the preliminary point went the other way. This course is often adopted on the basis that the further issues can be dealt with comparatively briefly. Such a course can be useful to the parties if the decision on the preliminary point is successfully appealed, perhaps saving a further hearing. However, I do not take this course because the further issues cannot be briefly dealt with, and because the passage of time since the trial renders it likely that further evidence relating to the parties' financial positions will be necessary.
Orders
1.Ms Grover's application filed 17 February 2012 be dismissed.
I certify that the preceding [122] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
23 May 2017
7
0