GRUDA & ELLIS

[2015] FCCA 960

FEDERAL CIRCUIT COURT OF AUSTRALIA

GRUDA & ELLIS [2015] FCCA 960

Catchwords:
FAMILY LAW – De facto relationship – whether parties were in a de facto relationship.

Legislation:
Family Law Act 1975 (Cth), ss.4AA, 90RD, 90SB(a)

Dandridge & Barron [2012] FMCAfam 141 (24 February 2012)
Jonah & White (2012) FLC 93-522
Norton & Lock (2013) FLC 93-567
Sinclair & Whittaker (2013) FLC 93-550
Delamarre & Asprey [2014] FamCAFC 218

Applicant: MS GRUDA

Respondent: MR ELLIS

File Number: DUC 213 of 2014

Judgment of: Judge Dunkley

Hearing dates: 13 – 15 April 2015

Date of Last Submission: 15 April 2015

Delivered at: Parramatta

Delivered on: 20 May 2015

REPRESENTATION

Counsel for the Applicant: Mr Kenny

Solicitors for the Applicant: Campbell Paton & Taylor

Counsel for the Respondent: Mr Combes

Solicitors for the Respondent: Trapski Family Law

THE COURT DECLARES

1. Pursuant to section 90RD(2) of the Family Law Act 1975 (Cth) it is declared as and between Ms Gruda (“the applicant”) and Mr Ellis (“the respondent”):

   (a)The applicant and respondent lived in a de facto relationship for the purposes of s 90SB(a) from (omitted) 2011 to 11 January 2013;

   (b)There is one child of that de facto relationship X born on (omitted) 2012; and

   (c)The applicant and respondent lived in a de facto relationship in both New South Wales and Victoria.

THE COURT ORDERS THAT

1. This case is listed for further directions at 9:30am on 11 June 2015 at Parramatta.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ORANGE

DUC 213 of 2014

MS GRUDA

Applicant

And

MR ELLIS

Respondent

REASONS FOR JUDGMENT

Introduction

1. The ebbs and flows of humans’ relationships are many and varied.

2. In this case, each party, Ms Gruda (“the applicant”) and Mr Ellis (“the respondent”), looking backwards at the ebbs and flows of their relationship seek to view those movements through the prism of what they assert.

3. The applicant sees / perceives and asserts the ebbs and flows as entirely indicative of the existence of a de facto relationship.

4. The respondent sees / perceives and asserts the ebbs and flows as entirely indicative of nothing more than a boyfriend / girlfriend relationship and not indicative of a de facto relationship.

5. The Court is charged with viewing the parties’ actions and behaviours unblinkered and through no prism other than the Family Law Act 1975 (Cth) (“Family Law Act”) and the case law applicable.

Legislation & Cases

1. A de facto relationship is defined for the purposes of this case in the Family Law Act section 4AA. The Family Law Act is the starting point. It provides:

   (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.

   Paragraph (c) has effect subject to subsection (5).

   Working out if persons have a relationship as a couple

   (2)Those circumstances may include 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 theirproperty;

   (f)whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;

   (g)the care and support ofchildren;

   (i)the reputation and public aspects of the relationship.

   (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.

   (4)Acourt 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.

   (5)For the purposes ofthis Act:

   (a)a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and

   (b)a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.

   When 2 persons are related by family

   (6)For the purposes of subsection (1), 2 persons arerelated by family if:

   (a)one is thechild (including an adoptedchild) of the other; or

   (b)one is another descendant of the other (even if the relationship between them is traced through an adoptiveparent); or

   (c)they have aparent in common (who may be an adoptive parent of either or both of them).

   For this purpose, disregard whether an adoption is declared void or has ceased to have effect.

2. Counsel for the applicant relies on Delamarre & Asprey [2014] FamCAFC 218. At paragraph 6 of that case, Deputy Chief Justice Faulks and Justices Finn and Strickland say:

   It was said by the Full Court in Jonah & White (2012) 48 Fam LR 562 at [32] and [33]; (2012) FLC 93-522 at 86, 682, in relation to s 4AA:

   a)It is immediately apparent that the touchstone for the determination of whether a de facto relationship exists is the finding that the parties to it are a “couple living together on a genuine domestic basis”.

   b)The Court may consider the matters to which the following subsections refer in determining that seminal question posed by s 4AA(1)(c). We accept the submission that none of the matters referred to in the section has precedence over any other, nor must all necessarily be found before finding a de facto relationship is made.

3. Their Honours then in paragraph 39 of their judgment say referring to another case of Sinclair & Whittaker (2013) FLC 93-550:

   In Sinclair & Whittaker the Full Court has warned (at [65]) that because the ultimate decision as to whether there is a de facto relationship at any given time is a decision for the court and not for the parties, the perception of the parties as to the nature of the relationship, while a relevant matter, cannot be determinative.

4. In paragraph 44 of their judgment their Honours decide:

   A declaration which provides that a de facto relationship existed, but which does not refer to the period of that relationship, appears to be envisaged by the terms of s 90RD(1), with such an interpretation of that subsection being supported by the use of the word also in s 90RD(2) and by the provision in s 90RD(2)(a) for a further declaration as to the period or periods of the relationship.

5. Counsel for the respondent relied on the decision of His Honour Judge McGuire in Dandridge & Barron [2012] FMCAfam 141 (24 February 2012).

6. At paragraph 7 thereof His Honour said:

   Without the precision, certainty and formality of a marriage certificate, courts in various jurisdictions have long been confronted with the plethora of types of relationships and levels of domestic and emotional commitment between adults in determining the status of a de facto relationship.

7. I understand His Honour to therein be saying each case because of the discretionary application of section 4AA is fact specific.

8. My understanding of what His Honour Judge McGuire has said is reinforced in my mind by reference to paragraph 43 of his judgment:

   As is often and usually the case with such discretionary issues, these are factors which weigh both for and against the arguments of each party. By its very nature, a de facto relationship does not have the formalities and defining characteristics of a marriage such as a ceremony and a marriage certificate. Hence, the discretion is a broad one based on the balancing of numerous empirical factors.

9. As these are civil proceedings pursuant to the Family Law Act the applicant bears the onus of proof on the civil standard, That is, the applicant must prove on the balance of probabilities the existence of the de facto relationship.

Agreed Facts

1. The applicant was born on (omitted) 1981.

2. The respondent was born on (omitted) 1978.

3. The applicant and respondent were each living in Sydney when they met and they started dating in (omitted) 2010.

4. The applicant and respondent were living in the same home in Melbourne on 11 January 2013 when their relationship ended.

5. During the period (omitted) 2010 until 11 January 2013, the parties had a sexual component to their relationship. Their sexual component was exclusive with each other throughout this time, and neither had a relationship with nor sexual intercourse with any other person during this time.

6. The parties had a child X who was born on (omitted) 2012.

7. The parties never operated a joint bank account.

8. In (omitted) 2011 the applicant in her own name purchased a home in (omitted). The respondent assisted with the purchase by loaning the applicant $7,000.00 which she repaid, over time.

9. In (omitted) 2011, the respondent purchased a farm near (omitted) in his own name, no financial assistance was provided by the applicant.

10. From (omitted) 2012 until 11 January 2013, the parties lived together in Melbourne, except for a short period from just prior to Christmas until 10 January 2013 when they individually spent the Christmas period with their respective parents and then after Christmas had a joint family holiday in (omitted).

11. The applicant filed her Initiating Application on 3 July 2014.

12. Consistent with the decision in Norton & Lock this case has been heard only as to the issue of whether or not the parties were living in a de facto relationship. The applicant seeks property settlement orders but the making or otherwise of these orders awaits the decision as to the current issue.

Documents

Applicant

• Applicant’s affidavit sworn 1 April 2015

• Affidavit of Ms P sworn 31 March 2015

• Affidavit of Ms A sworn 28 March 2015

• Affidavit of Ms P sworn 31 March 2015

Respondent

• Respondent’s affidavit affirmed 18 August 2014

• Affidavit of Ms L affirmed 26 March 2015

• Affidavit of Mr G affirmed 27 March 2015

• Documents exhibited during the course of the proceedings

Evidence and Discussion

1. Neither the applicant nor the respondent from 2010 to 2013 were married persons. They were not related by family. They never registered as a de facto couple.

Duration of the Relationship

1. The applicant asserts the parties first met in 2007.

2. In 2010 she says the respondent initiated various forms of communication with her. A friendship started when the applicant learnt from the respondent he was no longer with a girlfriend.

3. The respondent says they started dating in about (omitted) 2010.

4. The parties both agree they remained in a form of relationship until 11 January 2013. That day the applicant and the child X left the home the parties had been sharing in Melbourne at (omitted) and never lived in the same home thereafter. Their relationship in whatever form ended that day.

5. The applicant and X thereafter went to (omitted) in New South Wales to be with the applicant’s parents. The respondent remained living in Melbourne.

Nature and Extent of their Common Residence

1. In (omitted) 2010 the applicant was living in a shared rented apartment with friends. At this time the respondent had his own apartment.

2. Within a month the applicant says the parties were spending 5 nights a week together at their different apartments.

3. The respondent in his affidavit says nothing about the period between May – September 2010.

4. In his oral evidence he disputed 5 nights a week together but conceded some nights a week together.

5. Sometime in September or October, the respondent says he moved to (omitted) for work and began to occupy a home provided by his employer in (omitted).

6. The applicant followed him to the (omitted) and by June or July 2011 was boarding with Ms P 3 – 4 nights a week in (omitted) and otherwise living in (omitted) in the respondent’s home. The pattern of the arrangement outlined by the applicant and corroborated by Ms P was that the applicant would drive from (omitted) to (omitted) on a Monday. Work in (omitted) and stay with Ms P for 4 nights and then travel back to (omitted) on Friday.

7. She moved furniture and personal items to (omitted). She had a wardrobe of clothes at (omitted) and travelled with a small bag to (omitted).

8. The applicant had arranged for her employer to move her workplace from Sydney to (omitted). She had tried to negotiate for the workplace to be at (omitted) but the employer would only agree to the workplace being in (omitted) so as to have access to better transport infrastructure.

9. The parties lived together in the home at (omitted) in (omitted) sharing a bedroom and bathroom. They socialised together in (omitted) and its surrounds and at one stage undertook preliminary investigations about buying the home in (omitted). They on occasions gardened together at the (omitted) home. They shared meals in the home. Entertained on occasions. The applicant had her mail delivered there. Her dog was registered to the address.

10. The respondent deals with this period in paragraphs 7, 8 and 9 of his affidavit. He neglects to say therein, but did so when cross examined that the applicant moved furniture to the (omitted) home, put her clothes there, and kept her personal possessions there. He agreed in cross examination the ensuite bathroom was filled with “her lotions and potions and toiletries”. He conceded to gardening together also.

11. His affidavit gave none of this detail and colour. I am left with the impression of sparseness and less than frank disclosure as to suit his own perception of minimising the reality of the extent of their shared residence at this time.

12. This sparseness of detail in his affidavit given his more fulsome description when cross examined negatively impacts his credit. I prefer for this reason the applicant’s evidence about the period.

13. Ms P talks of sharing dinner with the applicant when she was a boarder and listening to the applicant, “talk about Mr Ellis and their shared activities and life in (omitted)”. Ms P was an impressive witness.

14. I am satisfied that by July 2011 the parties had a shared residence in (omitted). Even though the applicant was boarding 4 nights a week in (omitted) initially and then later staying 4 nights in a home she had purchased in (omitted). (omitted) was a base for her work. (omitted) was her home.

15. By July 2011, the applicant lived much like the modern phenomenon of a “fly in fly out worker”. Her mail was sent to (omitted)[1]. Her dog was registered as being kennelled at (omitted)[2]. Her dog was at (omitted). (omitted) was her home. She travelled away for work.

    [1] See exhibit F.

    [2] See exhibit F.

16. After the respondent’s employment was terminated in (omitted) on 27 February 2012[3] he moved about a month later to the applicant’s (omitted) home, and stayed there until June 2012 with some period of absence for overseas travel. In June 2012 he moved to Melbourne for new work.

    [3] See exhibit C.

17. Again the applicant followed. She resigned her employment, packed up her possessions and arrived in Melbourne in August 2012. The parties thereafter lived together in a rented home in (omitted) until 11 January 2013.

18. The respondent refers to their time in Melbourne in paragraph 16 of his affidavit and says:

    “16… In total, Ms Gruda and I lived together for approximately five months when she moved to Melbourne. That was the only time that we lived together as a couple with a shared purpose of being together which was purely due to Ms Gruda falling accidentally pregnant. Any other time that Ms Gruda and stayed with each other was due to our employment situation and not because we had made any commitment to a shared life together, prior to August 2012.”

The Parties’ Sexual Relationship

1. Each concedes a sexual relationship started in (omitted) 2010 and continued to late 2012. They put a different date to its end point in 2012.

2. From (omitted) 2010 to January 2013 neither had a sexual relationship with any other person.

3. They were faithful and monogamous in a sexual sense to each other.

Financial Dependence and Support

1. In the way of modern professional couples they each retained their financial independence.

2. They did not operate a joint bank account.

3. The respondent assisted willingly the applicant in (omitted) 2011 with the provision of $7,000.00 to enable her to complete the purchase of her (omitted) house. She returned the full amount to him over time.

4. They would buy food for each other. On occasions they would shop together. Early in the period after the move to Melbourne for a very short time the respondent provided for the applicant until she obtained employment.

5. The respondent, from November 2012 to January 2013, provided for the applicant because she was not working from just prior to X’s birth and post his birth.

Ownership of Property

1. The parties never jointly owned property. The applicant in late 2011 purchased a house in (omitted) in her own name.

2. Shortly after the respondent in his own name purchased a farm nearby to (omitted). He agreed to allow the elderly vendors to continue to live on the farm post completion of the sale.

3. The respondent owned property prior to meeting the applicant.

4. Again, the ownership of property by professional couples in their own names is not unusual and is both prudent, financially sensible, and entirely un-extraordinary.

5. Both parties used the house in (omitted), the applicant’s house in (omitted), and the rented house in Melbourne.

6. Neither occupied the farm in (omitted) purchased by the respondent.

Degree of Mutual Commitment

1. The respondent’s evidence is replete with the concept of girlfriend/boyfriend. He was at pains to point out how uncommitted he was to the applicant in any sense other than her being a girlfriend. His actions, however spoke otherwise. He never once sought to prevent the applicant following him from Sydney to the (omitted) of New South Wales and then again to Melbourne. He helped arrange for her removal to Melbourne. He refers to a shared commitment in paragraph 16 of his affidavit.

2. The applicant on the other hand was intent on developing a shared life. She was committed to the respondent. She desired a marriage proposal and a marriage.

3. When the respondent’s employment in (omitted) was terminated it was to the applicant that he turned for support, consolation and comfort.

4. They travelled overseas on holidays together. They socialised together. The applicant attended work functions with the respondent at his request.

5. They exchanged gifts with each other and the extended family of each.

Registration of Relationship

1. Their relationship was never registered in any State or Territory.

Care of Children

1. The respondent supported the applicant emotionally and practically throughout her pregnancy. He was present at the birth of X. He helped the applicant with X’s care post-delivery and on their return to the shared home at (omitted).

2. He juggled his parenting duties around his work commitments.

3. Although the parties had argued just prior to Christmas 2012 and did not spend this occasion together but rather with their respective families, they immediately post-Christmas spent a week as a family on holiday in (omitted) happily.

Reputation and Public Aspects

1. The parties were seen by friends as a couple. Ms A gave evidence about this as did Ms P.

2. There is much photographic evidence of them enjoying social events together.

3. The respondent’s Melbourne employer seems to have regarded them as a couple. Having drinks together, inviting them to attend the wedding of his daughter, paying for the applicant’s transportation to Melbourne.

4. The parties attended “milestone events” for their families together, birthdays, weddings etc.

5. The respondent at times for enhancement of his professional standing referred to the applicant as his partner.

1. The applicant’s mother viewed them as a couple. The respondent’s parents did not.

Determination

1. Neither party was legally married to any other person.

2. The entirety of the time from their meeting in (omitted) 2010 until January 2013, the sexual relationship was monogamous and they had a child they began to raise.

3. They largely remained financially independent and acquired property in their own name.

4. The respondent downplayed the degree of mutual commitment to a shared life but I am satisfied that he did have a mutual commitment to a shared life from (omitted) 2011 until when the parties separated in January 2013. His downplaying of the mutual commitment in his evidence is contrary to his actions. He did not object to or prevent the applicant from moving from Sydney to (omitted), taking up residence in his employer-provided home. Apart from days the applicant worked in (omitted) they occupied that home together.

5. I am satisfied that the applicant was only absent from that home for reasons of her employment. The applicant was committed to shared life. When they were together in that home they shared their life – gardening, shopping, socialising – portraying themselves to the world at large as a couple.

6. Again in mid-2012, the respondent moved and again the applicant followed him. Indeed the respondent assisted her move to Melbourne. When the child X was born they began the mutual raising of that child.

7. That the respondent’s mother did not regard the parties as a couple is entirely I am satisfied because of what she has been later told by the respondent not as a result of her own independently formed views.

8. The parties were not always in a de facto relationship nor committed to life as a couple. This point of coupledom living together on a genuine domestic basis was reached when the applicant followed the respondent from Sydney to (omitted). Moved her employer’s place of business from Sydney to (omitted) and set up home with him in (omitted). Her acquiring a property and living away from their joint home in (omitted) does not detract, in my view, from them being a couple living together on a genuine domestic basis. Working and staying in another town during the periods of work and the acquiring of individually owned property does not mean they were not a couple living together on a genuine domestic basis.

9. By December 2012 they began to have serious difficulties with their relationship. They spent Christmas apart. They thereafter attempted reconciliation and seemed to have reconciled their relationship as a result of their holiday as a family in (omitted). A final decision to end the parties’ relationship was made by the respondent through his announcement to the applicant in Melbourne in January 2013. It was that announcement that brought to an end their coupledom living together on a genuine domestic basis, as evidence by their final irrevocable separation.

10. I therefore determine the parties’ de facto relationship commenced in (omitted) 2011 when the applicant moved into the respondent’s employer-provided home in (omitted). Thereafter they remained living as a de facto couple until 11 January 2013.

11. There is one child of their de facto relationship, X born (omitted) 2012.

12. Their de facto relationship existed in both New South Wales and finally in Victoria.

I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Judge Dunkley

Associate: 

Date:  20 May 2015