Harrington & Lanza
[2024] FedCFamC2F 1121
•16 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Harrington & Lanza [2024] FedCFamC2F 1121
File number(s): HBC 183 of 2024 Judgment of: JUDGE TAGLIERI Date of judgment: 16 August 2024 Catchwords: FAMILY LAW – de facto relationship – threshold issue – where respondent seeks a declaration pursuant to s 90RD of the Family Law Act 1975 that a de facto relationship never existed – applicant asserts that a de facto relationship existed – declaration that de facto relationship existed Legislation: Family Law Act 1975 (Cth) ss 4AA, 90RD, 90SM Cases cited: Baden & Packwood [2021] FedCFamC2F 204
Crowley & Pappas [2013] FamCA 783
Jonah & White [2011] FamCA 221; 258 FLR 236
Moby & Schulter [2010] FamCA 748; (2010) FLC 93-447
Tomson & MacLaren [2021] FamCA 620
Division: Division 2 Family Law Number of paragraphs: 64 Date of hearing: 4 July 2024 Place: Hobart The Applicant: In person Counsel for the Respondent: Mr Trezise Solicitors for the Respondent: Butler, McIntyre & Butler ORDERS
HBC 183 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS HARRINGTON
Applicant
AND: MR LANZA
Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
16 AUGUST 2024
THE COURT ORDERS THAT:
1.Pursuant to s 90RD(1) of the Family Law Act 1975 (Cth) there is a declaration that a de facto relationship existed between the parties, Ms Harrington and Mr Lanza.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE TAGLIERI
By Application filed 1 March 2024, Ms Harrington (“the applicant”) seeks orders pursuant to s 90SM of the Family Law Act 1975 (Cth) (“the Act”) for adjustment of property interests between herself and Mr Lanza (“the respondent”). The parties agree that they were in a relationship of some sort from around late 2021 until sometime in early 2023 but there is no agreement as to the nature or specific duration of the relationship.
By his Response filed 20 March 2024, the respondent seeks an order for a declaration pursuant to s 90RD of the Act that a de facto relationship never existed and, consequently, that the Application filed 1 March 2024 be dismissed.
The proceedings were listed for the Court to determine first and discretely whether the declaratory order sought in the Response should be made. An interim defended hearing was conducted on 4 July 2024, at which the applicant appeared and represented herself and the respondent was represented by counsel. Both parties gave oral evidence and were cross-examined.
The applicant relied on her affidavit affirmed 6 June 2024, as well as her Application and the PPP Cases Financial Summary document filed by her on 1 March 2024. The respondent relied on his affidavit sworn 29 May 2024 and an affidavit of his sister, Ms B, also sworn 29 May 2024. All three affidavits were read by the Court unopposed.
The respondent also tendered two documents that were marked by the Court as Exhibits R1 and R2, being:
·The will of Mr Lanza dated late 2022; and
·A handwritten note of the applicant dated 10 April 2023.
LEGAL PRINCIPLES
The Court has power pursuant to s 90RD(1) of the Act to make declarations in respect of jurisdictional facts necessary to enliven the Court’s power to adjust property interests between de facto spouses. In particular, as is relevant to this case, whether a de facto relationship ever existed between the parties.
Relevant to the jurisdictional facts are the provisions in s 4AA of the Act, which provides for the meaning of “de facto relationship”, and relevant authorities.
Section 4AA provides:
Meaning of de facto relationship
(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 their property;
(f) the degree of mutual commitment to a shared life;
(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h) the care and support of children;
(i) the reputation and public aspects of the relationship.
(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) A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
(5) For the purposes of this 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.
…
In Jonah & White [2011] FamCA 221; 258 FLR 236, Murphy J gave guidance in assessing the facts of a case against the factors outlined in s 4AA of the Act, stating at [60]:
In my opinion, the key to that definition is the manifestation of a relationship where “the parties have so merged their lives that they were, for all practical purposes, ‘living together’ as a couple on a genuine domestic basis”. It is the manifestation of “coupledom”, which involves the merger of two lives as just described, that is the core of a de facto relationship as defined and to which each of the statutory factors (and others that might apply to a particular relationship) are directed.
The complexity of the assessment of relevant facts and factors in s 4AA was the subject of judicial guidance in Crowley & Pappas [2013] FamCA 783, where Tree J said at [8]:
Those provisions, or their state counterparts, have been the subject of considerable judicial discussion, principally in an attempt to more precisely analyse what will comprise “a couple”. Much of that analysis seems to have its genesis in the difficulty in satisfactorily distilling the essence of such a common, everyday concept. From those decisions the following propositions may be stated:
(a)whether a de facto relationship exists or not is a question of fact, not a matter of discretion;
(b)a de facto relationship does not need to be akin to a marriage although the nature of the association involved in a marriage relationship may be instructive;
(c)the parties determine the nature of their relationship and it may evolve and alter, even dramatically, over time;
(d) there need not be full time living together;
(e) the relationship may be unhappy, but still subsisting;
(f) sexual or other exclusivity is not necessary;
(g)the gist of the inquiry is the degree to which parties have merged their lives into one. That connotes financial, emotional and physical interdependence.
[footnotes omitted]
Generally, the onus of establishing the fact that parties were in a de facto relationship will be on the party asserting that fact on the balance of probabilities.
Whether a de facto relationship existed and, if so, when it commenced and concluded is a matter for determination on the facts, although the perceptions of the parties may be relevant to this. The fact-finding required is somewhat complicated when parties have different perceptions and where those perceptions may be motivated by a desire to achieve particular outcomes. Recent examples of this difficulty are Tomson & MacLaren [2021] FamCA 620 and Baden & Packwood [2021] FedCFamC2F 204.
FINDINGS BASED ON THE PARTIES’ EVIDENCE
Nature and extent of common residence and ownership of property
The respondent purchased C Street, Suburb D (“the Suburb D property”) in 2018.[1]
[1] Respondent’s affidavit sworn 29 May 2024 at [15].
The applicant stated she purchased E Street, Suburb F (“the Suburb F property”) in late 2022, assisted by a gift of money from her parents.[2] However, this does not appear to be accurate because she otherwise maintained that she owned this property when the parties met and that the respondent moved into the Suburb F property in October 2021. It seems likely that the applicant purchased the Suburb F property in 2020, as stated by the respondent,[3] and not in 2022.
[2] Applicant’s affidavit filed 11 June 2024 at [16].
[3] Respondent’s affidavit sworn 29 May 2024 at [18].
The applicant asserts that the parties lived together between October 2021 and April 2023,[4] but agreed that she asked the respondent to, and he did, leave the properties they were living in on occasions. The respondent states that he did not consistently live with the applicant but stayed either in his Motor Vehicle 2 at this sister’s house in Suburb G or at the applicant’s house but often left when asked to do so by her.[5] His evidence in chief was that he spent around two to four days per week in the same home as the applicant between October 2021 and April 2023 but in cross-examination he conceded it was an average of four nights per week until the purchase of the property in Suburb H. I am satisfied and find that from October 2021 the respondent spent more time with the applicant in a shared residence, averaging four nights per week, until they bought the property in Suburb H referred to below.
[4] Applicant’s affidavit filed 11 June 2024 at [13] and [17].
[5] Respondent’s affidavit sworn 29 May 2024 at [22]-[30].
Both parties agree that the applicant sold the Suburb F property in mid-2022 and they then purchased a property at J Street, Suburb H (“the Suburb H property”). Although they differ about the date of completion of the purchase, they agree that they had moved into the Suburb H property together by September 2022.[6] I find accordingly.
[6] Applicant’s affidavit filed 11 June 2024 at [25] and respondent’s affidavit sworn 29 May 2024 at [33].
The respondent submits he was pressured into the purchase of the Suburb H property but this is disputed by the applicant. Further, the respondent conceded in cross-examination that he had hoped to have his daughters live and spend more time with him. I infer this to be a concession of a mutual commitment to live with the applicant and their respective children in the Suburb H property, noting that the applicant’s son lived with them also.
It is possible that the respondent felt some pressure about buying the Suburb H property with the applicant but I am satisfied that he consciously decided to proceed with the purchase. It could not be otherwise because he signed the requisite documents and facilitated loans being taken out and secured, and there is no evidence that he lacked legal capacity at the time.
The respondent maintains that he left the Suburb H property in March 2023 and moved into his Motor Vehicle 2, which he relocated to the Suburb D property while it was being rented by his son.[7] His evidence was that he was between the Suburb H and Suburb D properties in March and April 2023 and it appears that the respondent concedes the relationship ended in April 2023 when family violence orders were made protecting each of them from the other.[8]
[7] Respondent’s affidavit sworn 29 May 2024 at [45].
[8] Respondent’s affidavit sworn 29 May 2024 at [46]-[53].
In her affidavit filed 11 June 2024 at [50], the applicant acknowledges starting the “separation process” with Centrelink on 30 March 2023. She also conceded under cross-examination that she had authority to ask the respondent to leave the Suburb H property as he was only there with her permission.
Existence of sexual relationship
Both parties gave consistent evidence that their relationship involved sexual relations but there is some evidence that the respondent was dissatisfied with the degree of sexual intimacy and that they did not always share a bed.[9]
[9] Applicant’s affidavit filed 11 June 2024 at [27] and [32], which was not challenged.
Degree of financial dependence or interdependence
The respondent conceded in cross-examination that the parties purchased Motor Vehicle 1 together, selling the vehicles they had previously owed themselves. I find that they shared finances for the purpose of acquiring a vehicle for their common and mutual use, including Motor Vehicle 2 for holidays and trips away.
The respondent also conceded that when purchasing the Suburb H property, the applicant contributed $200,000 towards the purchase price. He also stated that he had refinanced the loan on his Suburb D property and used some of those funds to pay out loans the applicant had, and the personal loan for Motor Vehicle 1 and for the purchase of Motor Vehicle 2. Based on the foregoing evidence not challenged, I find that around the time the Suburb H property was purchased, the parties were intermingling their finances for mutual benefit.
The respondent agreed that the applicant managed both parties’ monies, expenses and did their budgeting. However, he disagreed that the applicant had been involved in or responsible for renting out the Suburb D property, noting it was managed by a rental agency and the emails about such came to him.
Unhelpfully, the evidence does not address who had access to what bank accounts or money. There was limited evidence about the parties’ respective incomes but no evidence as to the use to which it was put.[10] The unchallenged evidence is that the parties maintained their own bank accounts, except that they had a joint mortgage account for the Suburb H property.[11]
[10] PPP Cases Financial Summary filed by the applicant on 1 March 2024 at pp 7 and 9.
[11] Applicant’s affidavit filed 11 June 2024 at [39] and respondent’s affidavit sworn 29 May 2024 at [68].
Ownership, use and acquisition of property
As addressed above, the respondent used the applicant’s residential property at Suburb F, and I infer the contents within it, for approximately 8 months, although I accept that this was not every day. Later, after the parties purchased the Suburb H property they mutually resided there, although the respondent not always.
The respondent’s property at Suburb D was solely owned and leased out by him and there is no evidence about the use to which the rental income was put. As the property was subject to a mortgage, I infer that it was likely applied to mortgage repayments.
Both parties owned and used the Suburb H property and the respondent made improvements to it.[12] The applicant contributed $200,000 from the sale proceeds of Suburb F to the purchase price of the Suburb H property and the parties took out a joint loan for the balance. The title to the property was taken as tenants in common, but there is no direct evidence of their respective shares.
[12] Respondent’s affidavit sworn 29 May 2024 at [55] and applicant’s affidavit filed 11 June 2024 at [33].
Despite the lack of direct evidence about their shares as tenants in common, I infer that the shares in the property were equal, otherwise there would not have been cause to provide for the specific bequest of $200,000 to the applicant in the respondent’s will, as was the subject of evidence both parties gave consistently under cross-examination.
The respondent refinanced the Suburb D property and used part of those funds to purchase Motor Vehicle 2, which was used by the parties and the applicant’s son for trips away.
The parties used sale proceeds from vehicles they previously owned to purchase and use a new vehicle together, being Motor Vehicle 1.
The applicant’s evidence is that the parties had a “whirlwind romance” and became engaged in late 2021. In cross-examination, the respondent conceded that the parties had been engaged and that the ring he had purchased for the applicant in early 2022 was in fact an engagement ring. This evidence contradicts what the respondent stated in his affidavit sworn 29 May 2024 at [65]. I infer that the ring is still possessed and used by the applicant.
I accept and find that respondent’s son and girlfriend stayed at the Suburb H property for at least several weeks in or around late 2022.[13]
[13] Applicant’s affidavit filed 11 June 2024 at [37] and respondent’s affidavit sworn 29 May 2024 at [66].
Care and support of a child
The parties met in mid-2021,[14] and each have children from previous relationships but do not have children together.[15]
[14] Applicant’s affidavit filed 11 June 2024 at [4] and respondent’s affidavit sworn 29 May 2024 at [4].
[15] Applicant’s affidavit filed 11 June 2024 at [8]-[10] and respondent’s affidavit sworn 29 May 2024 at [9]-[11].
I find based on the commonality of the parties’ evidence that the respondent provided limited assistance to the applicant in caring for her son, including collecting him from childcare and supervising him until the applicant returned from work. The respondent did not provide financial support to the applicant for her son.
Other
There is little evidence before the Court about the parties approach to day-to-day tasks such as cleaning, grocery shopping, cooking, tidying and gardening. However, there is evidence which was not challenged that the parties each sometimes cooked for each other,[16] and both performed tasks within the household.[17]
[16] Respondent’s affidavit sworn 29 May 2024 at [14].
[17] PPP Cases Financial Summary filed by the applicant on 1 March 2024 at pp 6 & 8.
I also find that the parties had love and affection for each other, noting the nature of the communications demonstrated in annexure B of the applicant’s affidavit filed 11 June 2024.
Reputation and public aspects of the relationship
In my view, the contradictory evidence about the engagement ring described above in these reasons at [32] is symptomatic of the respondent’s diminishment of the public aspect of their relationship post separation.
The respondent’s affidavit evidence also tended to diminish the nature of the applicant’s interactions and participation in occasions with his family and friends. For example, the respondent’s sister, Ms B, states in her affidavit that she met the applicant about eight times, while the respondent states “a few”.[18]
[18] Affidavit of Ms B sworn 29 May 2024 at [7], which was taken by the Court as read unopposed, and respondent’s affidavit sworn 29 May 2024 at [66].
The applicant has given detailed evidence about her social interactions with the parties’ mutual friends, and this was not challenged or contradicted through cross-examination. I am persuaded that her evidence is truthful.[19]
[19] Applicant’s affidavit filed 11 June 2024 at [34]-[35].
The unchallenged affidavit evidence of Ms B sworn 29 May 2024 attests to a troubled and unhappy relationship between the parties. This is also demonstrated by the family violence orders and assault charge that arose towards the end of the relationship.[20] Moreover, Ms B’s affidavit confirms that she had not infrequent discussions with both parties about their relationship, which is demonstrative of a level of concern for the parties relationship, respect and trust between all three.
[20] Applicant’s affidavit filed 11 June 2024 at [28] and annexure E; the application filed 1 March 2024 at pp 8-9; and respondent’s affidavit sworn 29 May 2024 at [42], [51] and annexure A.
The applicant made a declaration for Centrelink purposes that she was in a de facto relationship from mid-2022 and informed them that it had ended on 30 March 2023.[21]
[21] Respondent’s affidavit sworn 29 May 2024 at annexure C and applicant’s affidavit filed 11 June 2024 at [50].
Other relevant findings
There is little evidence about precisely why the Suburb H property was sold, but the probative evidence which I prefer establishes that it was initially listed for sale at offers over $725,000 in mid-2023 and sold for $685,000 in late 2023 or early 2024.[22] After discharge of mortgage and other sale related expenses only $10,611.28 remained.[23] As the unchallenged evidence is that it was purchased for $805,000, allowing for stamp duty and the additional borrowing to repay the applicant’s liabilities, I infer that the mortgage was for over $600,000,[24] noting the concession that the applicant contributed $200,000.
[22] Respondent’s affidavit sworn 29 May 2024 at [57].
[23] Applicant’s affidavit filed 11 June 2024 at annexure F and respondent’s affidavit sworn 29 May 2024 at [57].
[24] There is an assertion in correspondence from the applicant’s then solicitors that the mortgage was $636,150.28 as at 5 June 2023.
I infer from [33] of the applicant’s affidavit, which was not challenged, that the respondent was not contributing to mortgage repayments from at least late April 2023 and this caused her to make the financial hardship arrangements she refers to with the bank. Consequently, I infer that the applicant was keen to sell the Suburb H property based on her evidence at [33] of her affidavit. The respondent must have agreed to the sale price of $685,000 as a joint owner, the sale contract would have required his signature.
EVALUATION AND DETERMINATION
Counsel for the respondent also sought to impugn the applicant’s bona fide about whether she had been in a de facto relationship with the respondent by putting to her that she had set out to take financial advantage, by pressuring him to purchase the Suburb H property or insist on them preparing a will. I reject the implicit suggestion invited by this cross-examination and the submissions.
Having heard the parties give evidence, I accept the evidence of the applicant about her motivation to have wills drawn and that she took advice about this from K Law Firm. As the applicant contributed $200,000 to the purchase of the Suburb H property but I infer took ownership of it in equal shares as tenants in common, if the respondent had died suddenly without a will, her contribution to the property may not have been otherwise recognised.
The applicant’s actions were in my view reasonable and based on legal advice. The respondent gave evidence that it was the applicant’s idea to have the wills and he “just agreed”. Accordingly, it is beyond doubt that he agreed to the terms of the will. I find that the respondent executed the will voluntarily as there is no evidence to the contrary.
Although the applicant conceded in cross-examination that the terms of the will were a “poor deal” and meant she got a “double benefit”, I am not persuaded that receiving $200,000 from the respondent’s estate would result in “double benefit” as was put in cross-examination. The respondent had not contributed $200,000 to the purchase price of the Suburb H property but the applicant had, yet they each acquired a half interest. The terms of the will merely returned to the applicant her initial contribution to the purchase price from the respondent’s share of the estate. That the will then went further and divided the residuary estate in four equal shares, one of which was to go to the applicant, I infer was subject of instructions which were given or at least confirmed by the respondent to the solicitors who prepared the will.
It is also notable that the will refers to the applicant as “partner” and that the respondent appointed the applicant as a joint trustee, signifying commitment beyond a casual relationship.
The submission by counsel for the respondent that his client had been a “stooge” and the applicant had set out to get financial advantage is rejected as it is simply inconsistent with the respondent’s evidence at [35] of his affidavit and the fact that his major asset was kept separate while that of the applicant’s shared.
Although the respondent states he told the applicant that he no longer wanted to purchase the Suburb H property together, he in fact did proceed with the purchase. I infer he was motivated by a desire to continue their relationship and hopefully have more time with his children.
I am conscious that the parties perceptions are not determinative of whether there was a de facto relationship, but the concessions made by the respondent were concessions about facts not his perception of those facts. For example, that they were engaged, that on average he spent four nights per week with the applicant and he made contributions to improvement of their shared property.
The findings at [13] to [20] and [26] to [33] of these reasons demonstrate that the parties’ shared living as a couple on a genuine domestic basis at the Suburb F property and later at the Suburb H property, and the joint ownership of some but not all of their property, weigh in favour of a conclusion that the parties were in a de facto relationship.
The existence of a sexual relationship and significant financial interdependence also weigh in favour of that conclusion.[25]
[25] See [21] to [25] of these reasons.
The degree of assistance the respondent provided to the applicant regarding care of her son and the fact that he did not financially support the son weigh somewhat against a conclusion of the parties being in a de facto relationship.[26]
[26] See [35] of these reasons.
The reputational and public aspects of the parties’ relationship also weigh in favour of the existence of a de facto relationship.
Collectively evaluating the factors weighing in opposing directions according to the guidance in the authorities cited above, I conclude that the parties were in a de facto relationship, although it was at times unhappy or turbulent and eventually did not last indefinitely.
The respondent sought to discredit the applicant’s evidence, by producing the declaration to Centrelink about the status and existence of the de facto relationship. However, I do not accept that the declaration impacts on the applicant’s general credibility. Relationships evolve over time and it is not simple or clear to pinpoint a definitive date when a declaration about being in a de facto relationship should be made to Centrelink.
The declaration the applicant made in my view simply corroborates that by mid-2022 when the parties were jointly purchasing the Suburb H property, there was a de facto relationship. Whether the declaration should have been made at an earlier date for social security purposes is not of relevance in the circumstances of this case.
I accept the principles outlined in the respondent’s case outline and the authorities cited, but they are high level principles and as stated by Mushin J in Moby & Schulter [2010] FamCA 748; (2010) FLC 93-447, the question to be decided must be determined on the facts found in any given case.
CONCLUSION
Balancing and assessing my findings, I am satisfied on the balance of probabilities that a de facto relationship existed between the parties but the duration of it was for less than two years.
I have entertained the substance of the respondent’s case, being that the parties were in a casual personal relationship which never matured into a de facto relationship within the meaning of s 4AA of the Act. But the weight of the findings about relevant factors addressed in these reasons warrant rejection of the respondent’s case, particularly in light of concessions made in oral evidence which were inconsistent with affidavit material he had relied upon.
The Court declines to make the declaration sought by the Respondent. Instead, I propose to make a declaration pursuant to s 90RD(1) of the Act that a de facto relationship existed between the parties. There is no dispute that it was for less than two years, however there is disagreement about the precise duration of the de facto relationship.
A declaration as to the existence of a de facto relationship does not automatically mean that the Court will at a later time make orders pursuant to s 90SM of the Act, as sought in the Initiating Application filed 1 March 2024. However, hopefully it will provide the parties with the jurisdictional basis to sensibly discuss and perhaps agree what, if any, final orders should be made.
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 16 August 2024
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