HARBROW & BOSTON

[2015] FCCA 1414

FEDERAL CIRCUIT COURT OF AUSTRALIA

HARBROW & BOSTON [2015] FCCA 1414

Catchwords:
FAMILY LAW – Dispute as to whether or not the parties were in a de facto relationship – credit issues.

Legislation:

Family Law Act 1975, ss.4AA, 90RD

Family Law Amendment (De Facto Financial Matters and Other Measures) Act2008 (Cth)

Moby & Schulter (2010) FLC 93-447
Sinclair v Whittaker (2013) FLC 93-550
Jonah & White [2011] FamCA 221

Applicant: MS HARBROW

Respondent: MR BOSTON

File Number: MLC 6495 of 2014

Judgment of: Judge Harland

Hearing date: 8 April 2015

Date of Last Submission: 8 April 2015

Delivered at: Melbourne

Delivered on: 28 May 2015

REPRESENTATION

Counsel for the Applicant: Ms Jenkins

Solicitors for the Applicant: Ryan Carlise Thomas

Counsel for the Respondent: Mr Moisidis

Solicitors for the Respondent: Michael Smith Barristers & Solicitors

ORDERS

1. That the applicant’s initiating application filed on 24 July 2014 be dismissed.

2. That within 7 days of the date of these orders the applicant do all acts and things and sign all documents necessary to remove caveats lodged on the titles of Property D and 3 Property E at her own expense.

3. Pursuant to s.90RD of the Family Law Act1975 (Cth) the Court declares that the parties were not in a de facto relationship.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 6495 of 2014

MS HARBROW

Applicant

And

MR BOSTON

Respondent

REASONS FOR JUDGMENT

1. This is a dispute about whether or not the parties were in a de facto relationship. The facts in this case are unusual. As I expressed during the course of submissions it is also a case where I had difficulties with aspects of both parties’ evidence. The supporting witnesses were largely of little assistance. All of this is particularly problematic in a case like this.

2. I have not dealt with all aspects of the parties’ evidence, as some material in both parties’ affidavits were not relevant to the threshold issue. It is unnecessary to deal with the parties’ evidence with respect to 2014 because on the applicant’s case, the relationship ended in 2014.

3. The applicant seeks a property division. This hearing was focused on the threshold issue of whether or not the parties were in a de facto relationship.

4. The applicant was born in Ethiopia. The respondent was also born in Ethiopia.

5. The parties have one child [X] born [omitted] 2007.

Circumstances of the parties meeting and relationship before they travelled to Ethiopia

1. The respondent is a [occupation omitted]. The parties met in 2005 when the applicant started [omitted]. The applicant says they started a relationship in June 2006 when she says she moved into the respondent’s home at Property D, (“Property D”).

2. The applicant says she decided to move closer to where the respondent lived and rented a property at [address omitted] for 12 months from June 2005 to June 2006.

3. At paragraph 25 of her affidavit sworn on 3 March 2015 she says that when she moved in to the respondent’s home as they had two households worth of furniture they gave some of the respondent’s belongings to a friend of hers. She does not name the friend and did not call this friend to give evidence.

4. The applicant says that the respondent paid for both their airfares to Ethiopia. The respondent says the applicant recommended a travel agent who could get cheap plane tickets to Ethiopia. He says he paid for his own ticket. He had planned his holiday independently of the applicant.

5. The applicant conceded during cross-examination that there was no engagement party in Australia. The applicant says he met the respondent’s sister a few weeks before they travelled to Ethiopia.  She says she did not meet his sister earlier because they hadn’t seen each other. She says his sister knew they were engaged before the applicant met her.

6. The applicant says her lease expired so she was living with the respondent at Property D before they travelled to Ethiopia.

7. The applicant’s evidence about how they became engaged is vague.

8. The applicant says they travelled together in July 2006 to Ethiopia to get married. She says they stayed with their respective families as it was not culturally acceptable for them to stay together before the wedding. The respondent gives a very different version of events.

The wedding ceremony in Ethiopia

1. The applicant says the parties decided to get married in Ethiopia.  The ceremony took place on or about 21 August 2006.  The applicant says the ceremony was supposed to be a religious one but the respondent changed his mind on the day because he is not religious. The applicant says he told her they would have a civil ceremony in Australia later.

2. The applicant says he did not follow through on that promise and that by the time she realised he was not going to marry her she was pregnant. She says she was ashamed about not being married and did not tell anyone. The respondent says he is religious and never promised to marry her because they were not in a relationship. He says he was merely doing a favour for a friend.

3. The applicant says the ceremony took place on 22 August 2006. The invitation she had translated refers to 26 August 2006.

4. The applicant says she was concerned and embarrassed that the respondent changed his mind about the religious ceremony but that they still enjoyed the day. She says about 200 people being family and friends from both sides attended the reception.

5. The applicant says they travelled to [L] for a one week honeymoon. The respondent says there was no honeymoon. He says he went to [L] for a holiday with his family.

6. The applicant annexes several photos of the ceremony. The respondent acknowledges that he participated in the ceremony

7. The respondent says he is Christian and attends [omitted] Church. The applicant says the respondent controlled finances and discouraged her from going to church during the relationship. The respondent denies this.

8. The respondent says that he agreed to help the applicant after her fiancé stood her up. He says he agreed so that she could save face which is important in their culture. He says that all the people at the ceremony were her family and friends. He says that his family would have been there if it was a real relationship.

9. The applicant later said that she and the respondent were both religious which is inconsistent with her evidence as to why there was no religious ceremony. The reasons the applicant gave as to why there was not a religious ceremony in Ethiopia are not convincing.

10. The respondent says the applicant travelled to Ethiopia to marry a man called Mr D and that Mr D changed his mind at the last minute. The respondent says that the applicant approached him and asked him to stand in for Mr D so that she would not lose face in front of her family when everything was arranged. It was put to the applicant that she told the respondent that she would tell her family that they had fallen in love and they would be married instead. The applicant denied this.

11. The respondent says that none of his family were at the ceremony. The respondent relied on photographs of himself and the woman the respondent says is his mother. The respondent says that the older woman in the photos with him at the ceremony is not his mother but a woman arranged by the applicant who was the mother of a family friend of the applicant’s who pretended to be the respondent’s mother in order to deceive her family.

12. The invitation to the wedding had a quote from the Bible on it. The applicant says the respondent had his own invitation. Her invitation only refers to her side of the family. She says she does not have a copy of his invitation. Wedding invitations commonly refer to the parents of the bride and the groom. No evidence was lead that these are cultural practices in Ethiopia which would explain the alleged use of two invitations, one from each family. I also think it is likely that the applicant would have kept a copy of that invitation as she has kept other records.

13. The respondent says he went to the resort at [L] after the ceremony with his own family and that the applicant’s sister was there with the applicant. The respondent says that during that period they had what he refers to as a one night stand which resulted in their daughter being conceived. The respondent’s evidence about this was unconvincing. On his version they pretended to be together for her sister’s sake yet only spent one night together.

14. He says he gave her cash for the plane ticket of either $1300 or $1500. He said he trusted her and that amongst Ethiopians money like that is nothing. He says he was not initially aware that the applicant booked for them to travel the same day. He said he planned to travel Ethiopia in 2004 and for the need to plan ahead in order to take leave from work. He says her fiancé Mr D met her at the airport. He says his brother was there to pick him up.

15. The respondent said that the applicant called him a couple of weeks later in Ethiopia as she said she wanted to see him and he agreed to meet at the [omitted] hotel. The respondent says she came to the hotel and started crying and saying that her fiancé had dumped her and she asked him to do her a favour and to stand up for her instead of Mr D. She said her family would take it very hard if she had to cancel the ceremony. She said she would tell her family that he was a friend from Australia who had always loved her and when Mr D pulled out he proposed straightaway and she accepted. She told him that she had prepared everything and he just had to show up. He says he told her that he did not want to tell his mother because it was strange and she told him that she had already arranged for someone to pretend to be his mother. He said that conversation went on for more than an hour. His mother and one of his brother’s live in Ethiopia. He says that the people in the photos are not his mother and brother. He says he did not see any harm in letting her family believe that they were married and that he saw it as doing a friend a favour that didn’t hurt anyone.

16. The respondent has made significant omissions from his affidavit including references to this woman he calls [name omitted] being arranged by the applicant to stand in as his mother at the wedding ceremony. This is significant evidence which should have been in his affidavit.

17. Before the wedding she introduced the woman she had arranged to pretend to be his mother who she said was the mother of a friend. She and her son pretended to be his mother and brother. He says there were about 200 people at the reception who were all family and friends of applicant, who said pretending to be her husband for the day was no big deal and that it was just like a party, drinking and having fun the whole day.

18. Exhibit B is a bundle of photographs from a day of the wedding ceremony. The respondent says that the older woman in those photographs is not his mother. Exhibit E are photos the respondent tendered of his mother and his brother. Counsel for the applicant submitted that the woman in the photograph in exhibit B and in exhibit E are the same woman and that the photos in exhibit E are older. I am not an expert in facial recognition but I cannot accept that submission. To my untrained eye, they do not look like they have the same facial features and bone structure.

19. The respondent is set in his material that they had a one night stand. However when he was cross-examined he said that he may have had sex with her on the night of the wedding ceremony. He said he was drunk and that he was not sure and then said it was possible but he did not think they had sex.

20. He says it is a coincidence that he and his brother were at the resort at the same time as the applicant and her family. He says there was an overlapping period of a couple of days. He did accept that there were photographs of them together sharing a meal and a video. He said that as her sister was there they had to pretend to be married then said that his brother did not know about it and just knew her as a friend of his from Australia. It is hard to accept that at the same time there could be differing pretences to different family members and in those circumstances it is the surprising why the respondent did not arrange his brother to give evidence earlier. He denied spending more than one night with her in the cabin even though he says her sister was there and thought they had got married. This aspect of his evidence is just not credible.

21. He failed to include in his affidavit any mention of seeing the applicant and her family at the resort and having sex with her there. When asked why it wasn’t in his trial affidavit he said he didn’t think it was important but if asked he would answer because it was the truth.

22. They flew back to Australia on the same flight. He says that when she booked the tickets he told her what day he wanted to go on and what day he might come back and she arranged the flights. He says he did not know that they would be flying on the same flight sitting next to each other and he says he did not know when she was going to return. He says his sister picked him up from the airport and a friend picked her up.

23. He says he next heard from her 10 or 15 days after they returned and she told him that she was pregnant. He said he was happy and surprised because he was aged 50 at the time and was not expecting to have a child but was very happy about it. He says he does not know why she had the ultrasound sent to the Property D address.

Australia post ceremony

1. The respondent says he let the applicant live at Property E (“Property E”) in lieu of him paying child support. He says they keep in touch because of their child.

2. He says the applicant had nothing to do with the purchase of the Property E property and did not go looking at houses with him.

3. The respondent says that the applicant was not financially dependent on him and carried out businesses from home [omitted]. She travelled overseas with [X] to Ethiopia and Canada. The applicant denies running a business from home. She does [omitted] as a hobby.

4. The respondent says that he would visit [X] most days after work and on weekends.

Property E

1. The applicant says they purchased this property together. She says the respondent insisted that the property be purchased in his sole name. The applicant acknowledges she did not make any financial contribution to the purchase of the property.

2. The applicant says she successfully negotiated a reduced purchase price. The applicant’s evidence on this point was not convincing.  She says she negotiated the price from $230,000 to $210,000 but the purchase price was $230,000.

3. The applicant acknowledges that the utilities were put in the respondent’s sister’s name Ms B. The respondent’s sister says she paid for the groceries and utilities until she moved out. She says she agreed to leave the utilities in her name on the basis that the applicant would pay them as the applicant had told her she could not get them put in her name as she had no credit history.

Centrelink

1. The applicant says the respondent told her she had to apply for Centrelink and had to apply as a single mother. The applicant says she was ashamed about this but did it as the respondent insisted. She says that she and the respondent filled out the forms together. She says the respondent told her that she had to use the Centrelink money to pay for the cost of living for herself and the baby and that he would pay the mortgage. The applicant says she had no choice to apply for Centrelink benefits even though she knew she was not entitled to it as a married woman and in spite of her religious views. The respondent’s counsel put to the applicant that she would not lie to the government and falsely claim Centrelink benefits because of her religion. That does not automatically follow.

2. The applicant got married in August 2013. She lives with her husband who works. She says she told Centrelink about her situation and that she now receives a parenting payment but not the sole parent’s pension. It was suggested to the applicant that she is claiming more than she should as according to her financial statements she is receiving what she would be entitled to for a child under 6. Her daughter is almost 8. The applicant then claimed that the figures she swore to in her financial statement filed in March 2015 about the respondent’s income was wrong and that his income varies from week to week.

3. The respondent denies telling the applicant to collect Centrelink benefits and denies helping her fill out the forms. He says she was entitled to claim Centrelink benefits as she was a single parent. The respondent says he has worked hard and is a taxpayer and has never claimed benefits. He paid tax on the deemed income he would have received if he rented the Property E property.

4. She says that the respondent paid an infringement fine for her in May 2012.  The respondent says he paid the infringement notice as it was a final notice to go to court. He did not want the applicant to get into trouble with the police or lose her license which would impact on [X].  She was in Ethiopia at the time.

5. She also says that the respondent paid some of the household bills even though they were in his sister’s name.  He says that his sister may have asked him to pay a bill from time to time which he did.

6. She also relies on credit card statements showing the respondent regularly shopped in the [E] area to support her claim that they were in a relationship. The respondent says he often shopped in that area as it is close and he often went there to visit [X].

7. The respondent says the majority of his mail is sent to his Property D address. He says the card was from a work mate who went to [E] with him after he told him he had bought a house there.

8. He says he bought some furniture for his sister and had it delivered to the [E] address as he kept her furniture when she moved out of Property D.

9. He says he bought a phone so he could keep in touch with [X]. He says the applicant has no credit history (which is something she also deposes to).

Overseas trips

1. The applicant says that the major family overseas trip was to the United States in 2010 to visit the respondent’s sister. The respondent says the applicant would not let him take [X] to the United States for a holiday to members of his family at the last minute. He then paid for the applicant to come on the trip. They did go to Disneyland together. He says they then parted ways whilst the applicant visited family in another state and [X] stayed with him and his family in Las Vegas. The applicant then came back to Las Vegas as [X] was missing her.

2. The applicant says that when she travels overseas to see her family the airfares are a financial burden to her but otherwise the costs are very minimal as she stays with family. She says she has no family in Australia.

3. The applicant travelled to Ethiopia and Canada in 2012. She went to Ethiopia in 2013 to get married. She also went to Ethiopia in 2010. The applicant says that a friend paid for the first trip and she paid her back by instalments. She says it was about $2,000. That first trip was from November 2009 until 2010. She says the respondent did not pay for the trip because he would not allow her to go. She says she was distressed and under a lot of stress at the time and needed to be with her family. She took their daughter with her.

4. Her 2012 trip started in April 2012 and continued until July 2012. She says she paid for half of that trip. Her friend wanted their daughter to be a flower girl at her wedding in Ethiopia so she paid for the other half. Again she says the respondent did not contribute to the cost of that trip.

5. The respondent travelled to England in September 2012. He says they did not separate then as they were never in a relationship. He says the applicant again initially agreed to him taking [X] to England but changed her mind at the last minute so he went on his own and was away for 8 weeks.

1. He says the parties never lived together at any stage as he lived at the Property D address and the applicant lived at the Property E property.

2. The applicant called several witnesses in support of her case. These affidavits were very brief, some as short as 4 and 6 paragraphs. They were vague and for the most part inadmissible although no objection was taken to them.

Mr W

1. The applicant says that Mr W is the husband of a good friend of hers. She says they were in Ethiopia when she and the respondent were shopping for the wedding and they met for coffee. She says they did not attend the wedding because they had tickets to return to Australia before that date. Interestingly the applicant did not name her friend. She says they socialised over the years and they saw one another every weekend at church.

2. Mr W says he met the parties at a shopping centre in Ethiopia. He said they did not talk very much as they had only just met and the conversation did not last very long. He said the two women were talking together but he did not know what they were talking about. He says he simply greeted the respondent and did not have a conversation. He said it was not an arranged meeting. He says they visited them when they celebrated the birth of their daughter [X] over a year later. He says even though the meeting was brief he remembers being introduced to the respondent by his name [first name omitted] and is certain that it was the respondent he met at the shopping centre. After the celebration of the birth, the next time he saw the respondent was at [X]’s first birthday celebration at the Property E property. He was not sure whether or not they were there for the later birthdays but thinks they went to most of them. He says he saw the respondent at some of them.

3. He then says he saw the applicant at church regularly since 2009 but had not seen the respondent at church. The applicant did not tell him that they never married. In fact she told them told him that they were married. He says that the wedding photos were in their room at their house. He says they also came to his son’s birth in 2012. His wife’s name is [omitted]. His evidence does not assist the applicant’s case as it is inconsistent with the applicant’s version of events.

Mr H

1. Mr H says he has been a friend of the applicant for 10 years and sees her every week at church. He says he saw the respondent at church two or three times.

2. He claimed to know the respondent ‘very well’ having seen him at [X]’s first birthday party. He says he knows they are married because he saw the wedding video and photos and because he is a church leader, he knows she went to Ethiopia for a wedding ceremony.  He says that the whole community knew them as husband and wife.  He was vague when pressed about his personal knowledge of this. He says he saw them on many occasions in the past 6 years as husband and wife but could not give any details. He was not a credible witness. His evidence did not assist me.

Mr M

1. Mr M prepared a brief affidavit. He says he met the respondent a couple of times.  One statement in his affidavit is really what one often sees in a character reference. He says he knows the applicant to be honest, trustworthy and reliable. That type of comment in an affidavit is inadmissible and provides no assistance to the court. He said that the applicant told him she was married. That of course is not true.

2. On his own evidence he only met the respondent twice at the Property E property and once at the shops.  It is clear that he does not like the respondent.  His evidence does not support the wife’s case.

Ms T

1. Ms T gave her evidence by telephone. Surprisingly she gave evidence that she prepared a small wedding shower for the parties with about 8 or 9 friends. She does not refer to this in her affidavit. More importantly the applicant gave evidence that there was no wedding shower or engagement party in Australia.

2. She saw the parties together at [X]’s birthday and at her children’s birthdays.  She also said that they came to her house for lunch on one occasion. She had to be pressed for any detail. It became clear that she had not seen them together for several years. She said they separated when [X] was 2 or 3 years old. She claimed to be good friends with the applicant but her evidence was very vague and after being pressed to give some specifics she resorted to saying that what she was saying was the truth. I do not find her to be a credible witness.

Ms S

1. Ms S attempted to give evidence by telephone.  She was on a mobile phone out on a road somewhere. It was impossible to proceed with her evidence because of the difficulty in hearing her.  Her affidavit was very brief and does not advance matters.

The respondent’s case

1. Both the respondent’s affidavits are drafted to respond to the applicant’s affidavits and leave out significant evidence which the respondent then gave during cross-examination.  I refused leave for the respondent to adduce oral evidence with respect to a girlfriend he claimed to have in the United States throughout the period of the alleged relationship with the applicant. This is a significant matter which should have been canvassed in his affidavit. It would have been unfair to allow him to raise it at the hearing, taking the applicant’s counsel by surprise.

2. The respondent sought to rely on an unfiled and emailed copy of an affidavit sworn by his brother which the applicant’s counsel had not seen by the morning of the hearing. The material was produced far too late in circumstances where the respondent knew that the applicant was saying that it was his family that were in the photos at the wedding. He could have produced an affidavit by his brother much earlier. Arrangements would also have to have been made for his brother to give evidence by telephone. I did not allow the respondent to file the affidavit. The respondent denies that it is his brother in the photo at the wedding. In order for the brother’s evidence to be of assistance in that case he would really need to appear in person or at least by video.

3. The respondent says they were never in a relationship. He says they became friends after meeting [omitted]. He says the applicant never lived at his Property D property but he allowed her to store her belongings there before she went to Ethiopia so she could save on paying rent during the period she was going to be away.

4. The respondent says that the arrangement was that the applicant was responsible to pay utilities.

5. He says he started to look for another house to buy in 2004 when he had nearly finished paying the mortgage for the Property D property. He found the second property in September 2006. He says the applicant had no involvement in searching for and paying for the house.

6. The respondent says the utilities for the Property E property are in his sister’s name because his sister moved in there.

7. The respondent says that after the applicant became pregnant he let the applicant move into the Property E property rent free in lieu of child support.

8. The respondent tendered his tax returns in support of his contention that they were not in a de facto relationship. He claimed a deemed rental income for the Property E property. He says he could have rented out the Property D property if he was living at Property E and actually receive a rental income. The applicant says that his sister in fact lived at the Property D property and not the Property E property as he claimed. Although the respondent says his tax returns supports his claim that it is also plain from his tax returns that it was to his financial benefit to do this because he was able to claim a loss on his tax return because the interest payments on the mortgage and other rental costs exceeded the rental income. The respondent’s tax returns are not determinative of whether or not he lived with the applicant.

9. I have watched the DVD which the applicant tendered as exhibit A. The video does not assist me in reaching my decision as it is consistent with both parties’ versions of their relationship. The video has clearly been edited to best portray the applicant’s version as it has headings such as living together at Property D. The headings are not evidence and it is not apparent from video which houses they were in. The respondent says he visited Property E regularly to see [X] and attended her birthday celebrations. He said they made the video showing [X] her room before she was born because they were excited and he wanted to show her parents together. This video is consistent with the parties being in a relationship at that time but it is not enough to satisfy me that they were in a de facto relationship.

10. When the respondent was cross-examined he said the applicant was just like any other [omitted]. He says they got to talking and she told him that she was going to Ethiopia the following year to get married. He said that he was going to Ethiopia the following year to visit his mother. On a later occasion she told him about a cheap Ethiopian ticket agency. It was a couple of months before they were both going to travel to Ethiopia. He says she offered to arrange the tickets. He says he gave her cash for his ticket.

11. He says they would call each other on the phone after she moved to [Melbourne suburb omitted] in mid-2005. He said she called him first. My impression was that he was very keen to downplay any relationship with the applicant at all. Each lacked credibility. He says she invited him to the wedding. One wonders if they were such little acquaintances as he suggested why she would do that. He says after her father died he saw her more often because it is Ethiopian tradition to provide support to people who are in need. She does not have any family in Australia. He says he visited her a few times after her father died. He denied forming a friendship with her even though they spoke on the phone occasionally. He did not even want to refer to her as a friend.

12. Before the applicant obtained a driver’s licence in 2011 and if he was not working, he would drive her to birthday parties and other events. He denied attending other people’s houses for dinner as a couple with the applicant. He was at the Property E property a couple of times a week to see [X].

Ms B

1. Ms B is the respondent’s sister. She says she met the applicant once before the parties went to Ethiopia when the applicant was putting her belongings in the garage at Property D.

2. She says she was very happy for her brother when he told her that he was going to be a father. She says that the respondent looked after her and her brothers and sisters after their father died and in short they got through high school and university and that she was keen to be able to support him by providing assistance with childcare. She says she got on well with the applicant and the applicant suggested that she move into Property E with her. She agreed. She says they agreed that she would pay the bills and the groceries.

3. She says she stayed with the applicant and [X] until she moved out in September 2009. She says she continued to see [X] regularly and stayed in touch with the applicant. She says in around February 2012 the applicant told her she was going to Ethiopia to get engaged to a man she met there in 2010. The applicant told her that she did not want the same thing to happen to her again as it did in 2006 when she made all the arrangements for the wedding and her husband to be changed his mind at the last minute.

4. She says that after the applicant got back in mid-2012 she told her that she would have to get the bills put in her own name. The applicant said the connection fees would be expensive so she left the bills in her name upon the applicant agreeing to pay the bills. She received a letter from lawyers for Energy Australia saying the gas and electricity bills had not been paid for two years. She is paying them by instalment as she does not want to ruin her credit rating.

5. She says that the applicant never lived at Property D. She says she lived at Property D with her brother and she and the applicant moved into Property E after the applicant found out she was pregnant. She says that it was the applicant’s proposal that she move in. The arrangement was that she would pay for the groceries and the utilities. She says that her brother sacrificed a lot for her so she wanted to help him and [X]. She says the focus was on [X].

6. The applicant’s counsel urged me not to place any weight on her evidence as she is clearly aligned with her brother. Whilst it is true, that unsurprisingly she is supportive of her brother’s case, that fact alone is not sufficient to discount her evidence.

Ms N

1. Ms N is a friend of the respondent. She says that for years the respondent has helped her by picking up and dropping her children off to school and helping them with homework. Her children are now 15 and 16 years old. The respondent still picks them up occasionally. She says she sees the respondent on most weekends and some weekdays. She says she never saw the applicant at the Property D home and saw no signs that she was living at that home. She says she went to [X]’s first and third birthday parties at the Property E home and says the respondent’s sister was living there at the time of [X]’s first birthday.

2. When she was cross-examined she said from the time she knew the respondent in 2003 he lived at Property D. [X]’s birthdays were spent at Property E. She claimed to see the respondent more often than he did but when pressed was somewhat vague.

The law and its application to the facts of this case

1. Section 90RD of the Family Law Act1975 (Cth) enables the Court to declare that a de facto relationship existed or never existed. It also enables the court to determine the periods of the relationship and when the relationship ended as well as where each of the parties were ordinarily resident during the de facto relationship. The applicant has the burden to prove on a civil standard that they were in a de facto relationship.

2. The de facto relationship must have existed for at least two years before the Court may make financial orders and must have existed until at least 1 March 2009 when the Family Law Amendment (De Facto Financial Matters and Other Measures) Act2008 (Cth) commenced.

3. As Mushin J pointed out in Moby & Schulter (2010) FLC 93-447, the definition of de facto relationship in section 4AA of the Family Law Act 1975 (Cth) is a very broad one.

4. Section 4AA of the Family Law Act 1975 (Cth) defines a de facto relationship and includes a number of criteria which may be relevant to the Court to consider in determining whether or not a de facto relationship exists between the parties. There are two preliminary matters and that is that the parties must not be legally married to each other and must not be related by family. Neither of those apply here.

5. Two people are defined to be in a de facto relationship “having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.”

6. Section 4AA(2) includes a number of criteria which the Court may consider in determining whether or not a de facto relationship exists. It is not necessary to make a particular finding about all or any of the matters listed. The Court is entitled to attach such weight to any of the matters as may be appropriate in the circumstances of the case: section 4AA(5).

7. Moby & Schulter [2010] FamCA 748 also involved a dispute about whether or not the parties were in a de facto relationship and if they were there was a dispute over the periods they were in such a relationship. In that case the parties disagreed about many of the material facts. As a consequence of this the credibility of the parties and their supporting witnesses was very important. This is also the case here.

8. The factors which are disputed which I must give consideration to are as follows:

   a)the duration of the relationship;

   b)the nature and extent of their common residence;

   c)the ownership and acquisition of property;

   d)whether a sexual relationship exists;

   e)the degree of financial dependence or interdependence and any arrangements financial support between them;

   f)the degree of mutual commitment to a shared life;

   g)the reputation and public aspects of the relationship.

9. I will address these factors in turn.

Length of relationship

1. The applicant says the parties were in a de facto relationship for 6 years from 2006 until 2012. The respondent says they were never in a relationship at all but were only friends.

The nature of the residence of their common residence

1. The applicant says they lived together at Property D for a short period before they went to Ethiopia and then lived together at Property E until 2012. The respondent says they never lived together. He says the applicant never lived at Property D and that he never lived at Property E. I am not satisfied on the balance of probabilities on the evidence before me that the parties lived together at either property.

The ownership use and acquisition of property

1. The applicant says she was involved in the purchase of Property E. The respondent denies this. The applicant’s evidence about the purchase price was inaccurate. I am not satisfied that the applicant had any involvement in the purchase of the Property E property.

Whether a sexual relationship exists

1. The applicant says they had a sexual relationship. She does not go into detail. The respondent says they had what he referred to as a one night stand and only had sex on that occasion. I think it is more likely than not that they had sex on more than one occasion but I am not satisfied that this was an ongoing sexual relationship

Financial interdependence

1. There is no dispute that the respondent financially supported the applicant. The applicant says that he provided limited support and was financially controlling such that she needed to falsely obtain Centrelink benefits. The respondent says he provided financial support by allowing the applicant to live in his Property E property rent free in lieu of paying child support. The parties did not have joint bank accounts.

Degree of mutual commitment to a shared life

1. Even on the applicant’s case the respondent’s commitments to a shared life was somewhat equivocal as she says he promised to legally marry her in Australia but then changed his mind. The respondent says he was not committed to a shared life with the applicant because they were never in a relationship. He says that he respected and supported her as the mother of this child. The applicant may have been committed to a shared life but I am satisfied on the evidence that the respondent was not. There was no mutuality here.

Reputation and public aspects of the relationship

1. The applicant called several witnesses who all said they thought the parties were married. That of course is not true. One even went so far as to say she threw a small engagement party for them which is very surprising given that the applicant conceded that they did not have a party. It was clear from the affidavits and the oral evidence of the applicant’s witnesses that they did not know the respondent well. Their evidence was consistent with the respondent’s version which is that he attended functions with the applicant when it involved their daughter. He was present at the birthday celebrations for [X] at the Property E property and birthday celebrations for other children they knew.

2. There are aspects of both parties’ evidence which was just not credible. The respondent was keen to minimise any existence of any type of relationship. I am satisfied that in 2005 the parties became friends and that in 2006 the parties were likely to be in a relationship which could be described as boyfriend and girlfriend. That is well short of being in a de facto relationship. However it does not make sense that the respondent would let the applicant store her belongings and help her out with the wedding ceremony. It seems unlikely that the parties would have merely coincidentally been at the same resort after the wedding ceremony.

1. During aspects of the applicant’s evidence it seemed that she could not keep her story straight for example, with respect to the electricity being turned off at the Property E property and her moving out.  The time of her going to Centrelink to say that she falsely claimed single parent benefits was also convenient, being so close to the final hearing and being something that she really had to do in support of her case if in fact she did attend Centrelink. I have no documentary evidence to that effect. I am not certain that she did. I found the applicant to be an unreliable witness.

2. In determining whether or not a de facto relationship exists, I must consider the whole of the circumstances of the relationship: see Sinclair v Whittaker (2013) FLC 93-550. There were aspects of both parties’ evidence which was unsatisfactory.

3. The applicant has the onus of establishing that a de facto relationship existed on the balance of probabilities as she is asserting that as a jurisdictional fact. She has not discharged that obligation. See Jonah & White [2011] FamCA 221. For these reasons, I will dismiss her application. The applicant has lodged caveats over the respondents’ properties. I will order for her to remove these.

I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate: 

Date:  28 May 2015