HANKINSON & DE VRIES

Case [2015] FamCA 833

FAMILY COURT OF AUSTRALIA

HANKINSON & DE VRIES [2015] FamCA 833

FAMILY LAW – DE FACTO RELATIONSHIPS – Where the applicant seeks a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) (“the Act”) that the parties’ relationship was a “de facto relationship” within the meaning of s 4AA of the Act – Whether the parties were living together on a “genuine domestic basis” – Period of de facto relationship – circumstances relevant to this relationship considered – Where relevant circumstances considered as a composite picture result in the conclusion that the parties relationship was a de facto relationship – Declaration made

FAMILY LAW – DE FACTO RELATIONSHIPS – Property settlement proceedings pursuant to s 90SM of the Act – Approximate 14 year period of de facto relationship but only a little over 2 years of the parties living in a single or common shared residence – Applicant had sole responsibility for 3 young children from previous relationships at the outset of, and during, this relationship – No children of the de facto relationship – Initial capital of the respondent introduced at the outset remains as the majority of property interests considered – Assessment of contributions where separate households maintained and applicant’s household includes young children from previous relationships – Contribution entitlement determined to be 80 per cent / 20 per cent in favour of the respondent – Whether adjustment for s 90SF matters – Determined an adjustment in favour of the applicant ought be made – Adjustment of 5 per cent.
Family Law Act 1975 (Cth)

Briginshaw v Briginshaw (1938) 60 CLR 336
Browne v Dunn (1893) 6 R 67
Chorn and Hopkins (2004) FLC 93-204
Fenton v Marvel (2013) 51 Fam LR 142
Gollings and Scott (2007) FLC 93-319
In the marriage of Horsley (1991) FLC 92-205
Cierpiatkav Cierpiatka (1999) FLC 92-864
Pierce v Pierce (1998) FLC 92-844
Jones v Dunkel (1959) 101 CLR 298
Kennon v Kennon (1997) FLC 92-757
In the marriage of Kowaliw (1981) FLC 91-092
Lynam v Director-General ofSocial Security (1984) FLC 91-577
In the marriage of Mehmet (No. 2) (1987) FLC 91-801
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449
Nelson v Nelson (1995) 184 CLR 538
Onslow & Onslow [2013] FCCA 1434
In the marriage of Robb (1995) FLC 92-555
Sinclair & Whittaker (2013) FLC 93-551
Stanford v Stanford (2012) 247 CLR 108
In the marriage of Townsend (1995) FLC 92-569
Waters & Jurek (1995) FLC 92-635
Whittaker & Sinclair [2012] FamCA 1050
APPLICANT: Ms Hankinson
RESPONDENT: Mr A De Vries
FILE NUMBER: BRC 6542 of 2011
DATE DELIVERED: 25 September 2015
PLACE DELIVERED: Brisbane
PLACE HEARD: Brisbane
JUDGMENT OF: Kent J
HEARING DATE: 3, 4 and 5 March 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Van Grinsven
SOLICITOR FOR THE APPLICANT: Zande Law
COUNSEL FOR THE RESPONDENT: Mr Kirk QC
SOLICITOR FOR THE RESPONDENT: Charles Cooper Lawyers

Orders

IT IS ORDERED THAT

  1. Pursuant to section 90RD of the Family Law Act

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HANKINSON & DE VRIES [2015] FamCA 833
Case
[2015] FamCA 833
Decision Date

CaseChat Overview and Summary

The applicant sought declarations under section 90RD of the *Family Law Act 1975* (Cth) that a de facto relationship existed between the parties, and pursuant to section 90SM of the Act, orders for property settlement. The dispute centred on whether the parties had lived together on a genuine domestic basis for a sufficient period to establish a de facto relationship, and if so, how their property should be divided, given the applicant's sole responsibility for three young children from previous relationships at the commencement and during the relationship, and the respondent's significant initial capital contribution which remained the majority of the property interests.

The court was required to determine if the parties' relationship constituted a de facto relationship within the meaning of section 4AA of the Act, considering the circumstances as a composite picture. It also needed to assess the parties' respective contributions to their property pool, particularly in light of the separate households maintained and the applicant's responsibilities for her children. Finally, the court had to consider whether any adjustment to the property division was warranted under section 90SF of the Act.

His Honour, Kent J, declared that a de facto relationship existed between the parties from January 1997 until 27 November 2010. In assessing contributions, the court determined an entitlement of 80 per cent in favour of the respondent and 20 per cent in favour of the applicant, reflecting the respondent's substantial initial capital. However, an adjustment of 5 per cent was made in favour of the applicant under section 90SF. The court ordered the respondent to pay the applicant $350,000 within sixty days, and otherwise, each party was to retain their own property. The respondent was also ordered to indemnify the applicant in respect of a specific loan account and debt.

Orders

Orders of the court

IT IS ORDERED THAT

1.

Pursuant to section 90RD of the Family Law Act 1975 (Cth) it is declared that a de facto relationship existed between the applicant and the respondent in the period from January 1997 until 27 November 2010.

2.

Pursuant to section 90SM of the Family Law Act 1975 (Cth) it is ordered as and by way of final orders for property settlement between the parties that:

(a) Within sixty (60) days of the date of these orders, the respondent pay to the applicant the sum of THREE HUNDRED AND FIFTY THOUSAND DOLLARS ($350,000.00); and

(b) Otherwise, each party retain to the exclusion of the other all property, superannuation and financial resources in the name, possession or control of that party; and

(c) The respondent indemnify the applicant, and keep her indemnified, in respect of any loan account with, or debt claimed by, D Pty Ltd including, but not limited to, any amount referrable to the purchase of the property at F Street, Suburb G in or about June 2009.

3.

Each party’s costs of and incidental to these proceedings be reserved.

IT IS FURTHER ORDERED THAT

4.

All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.

5.

Following the expiration of the Appeal period, all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

Background

Background to the litigation

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Evidence

Evidence Before The Court

At paragraphs [72], [74] and [75] the Full Court, in dismissing this ground of appeal, observed as follows:72.It is clear that the trial judge did not find that the appellant had other relationships at the time of his relationship with the respondent that were of the same kind and nature as that relationship. His Honour was critical of the lack of detail in the respondent’s evidence. His Honour was also critical of the failure of the respondent to call evidence from any of the persons with whom he asserted he had a relationship. …74.The trial Judge, not having accepted that the appellant was engaging in significant relationships with other women at the same time as that with the respondent, cannot be criticised for failing to give them adequate consideration. The determination of that factual issue was quintessentially a matter for the trial Judge.75.The reasoning process that led his Honour to that view does not disclose any error. Whilst the evidence of the appellant was that he believed he was in a number of significant relationships similar to his relationship with the respondent that belief does not prove the existence of such relationships. The failure of the appellant, to call objective evidence of his own, or of other parties, to support his general statements, not surprisingly, failed to persuade the trial Judge that the appellant’s subjective belief was in fact the position. (emphasis added) In my judgment the same observations can be made as to the respondent and his case on this issue. I do not accept that the respondent was, at the same time of his relationship with the applicant, engaged in other significant relationships of the same kind and nature as his relationship with the applicant. Notably, in the course of his cross-examination the respondent himself acknowledged the difference or distinction between the applicant attending family functions and any “casual acquaintance”, by inference any person with whom he might have had a transient sexual encounter.[31][31] Transcript of Proceedings 8 March 2014 at page 178: 30 and page 179: 30-35. In the case of the applicant she acknowledged, by reference to the evidence of Ms BB, that she did send photographs of herself naked or semi-naked over the internet to an unnamed man or men. She made reference in speaking to Ms BB to having a “harem”. The applicant’s explanation for this was to the effect that it was done by her to make herself seem more exciting to the respondent. Whilst I doubt this was done for the gratification of the respondent rather than for that of the applicant, I accept her evidence that she did not engage in sexual relationships with others during the subject period and nor did she form any relationship having any emotional attachment with anyone other than the respondent over the subject period. Whilst the respondent’s submissions would seem to elevate exclusivity as a determinative factor, in my judgment whilst it is relevant that the respondent pursued sexual relations with other men and women, mainly prostitutes, during the subject period, I do not consider this to have the determinative significance sought by the respondent for the reasons already outlined including with reference to subsection (5) of s 4AA of the Act.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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