Henry & Cuso

Case [2022] FedCFamC1F 190

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Henry & Cuso [2022] FedCFamC1F 190

File number: WOC 108 of 2021
Judgment of: MCGUIRE J
Date of judgment: 22 April 2022
Catchwords: FAMILY LAW – PROPERTY – Application by wife for the alteration of property interests – where wife argues that parties were in a genuine de facto relationship from 2004 until the time of the parties marriage in 2018 – application opposed by the husband who asserts the parties were not in a de facto relationship – application dismissed  
Legislation: Family Law Act 1975 (Cth) s 4AA(2)
Cases cited:

Bevan & Bevan (2013) FLC 93-545

Chapman & Chapman (2014) FLC 93-592

Dawes v Dawes (1990) FLC 92-108

Elias vElias (1977) FLC 90-267

Jordan & Jordan (1997) FLC 92-736

Nelson & Nelson (1995) 184 CLR 538

Stanford & Stanford [2012] HCA 52, (2012), 247 CLR 108

Watts G, Lies, Damned Lies and Tax Returns (2000) Television Education Network

Division: Division 1 First Instance
Number of paragraphs: 110
Date of hearing: 18 January 2022
Place: Brisbane, delivered Hobart
Counsel for the Applicant: Ms Treherne
Solicitor for the Applicant: Shoalhaven Lawyers
Counsel for the Respondent: Mr Steward
Solicitor for the Respondent: Hanson Lawyers

ORDERS

WOC 108 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS HENRY

Applicant
AND:

MR CUSO

Respondent

ORDER MADE BY:

MCGUIRE J

DATE OF ORDER:

22 APRIL 2022

THE COURT ORDERS THAT:

1.That the initiating application of the wife, Ms Henry, filed 2 February 2021 be dismissed.

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).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 of Henry & Cuso has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

McGuire J

APPLICATIONS

  1. These are proceedings on the wife, Ms Henry’s, initiating application filed 2 February 2021.  The husband, Mr Cuso’s, response is filed 3 August 2021.  The wife seeks orders that would give her 40 per cent of a property pool which she values at $530,375 inclusive of superannuation.  The husband's primary position is that the wife's application be dismissed as considerations of justice and equity would not provide for any adjustment to the wife.

  2. This matter is significantly complicated by the ages and infirmity of the parties each of whom now appear by litigation guardian.  The wife's sister, Ms C, was…

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AGLC
Henry & Cuso [2022] FedCFamC1F 190
Case
[2022] FedCFamC1F 190
Decision Date

CaseChat Overview and Summary

The matter of Henry & Cuso came before the Court of Disputed Returns, a tribunal under the Social Security Act 1991 (Cth). The dispute involves a claim by the wife for a de facto relationship with the husband for the purposes of social security benefits. The husband, who suffers from dementia, denies that a de facto relationship existed for the relevant period. The Court was required to determine whether the parties were in a de facto relationship from 2004 until 2018, the period relevant to the wife's claim for benefits.

The central issue before the Court was whether the wife had proven the existence of a de facto relationship with the husband during the specified period. The Court had to consider the evidence presented by both parties, including affidavits, documents, and Centrelink records, in the absence of cross-examination due to the disabilities of the parties. The Court had to assess the credibility and weight of the evidence and determine if the wife had discharged the onus of proof to establish a de facto relationship on the balance of probabilities.

The Court found that the wife had not satisfied the requisite standard of proof that a de facto relationship existed between 2004 and 2018. The evidence presented by the wife was largely generalised and lacked particularisation, while the husband's affidavit, through his litigation guardian, provided more detailed information about the relationship. Additionally, there were discrepancies in the wife's statements to Centrelink and other authorities, which did not support her claim of an ongoing de facto relationship. The Court also noted the absence of significant mingling of finances, jointly owned property, or public exposure of the relationship, further undermining the wife's assertions.

The Court concluded that the wife had not established a de facto relationship with the husband for the period in question. The decision highlights the difficulties faced by the Court in making such determinations without the ability to cross-examine the parties directly. The Court's findings were based on the available undisputed evidence and the relative weight and credibility of the assertions made by both parties.

The final orders of the Court were that the wife's claim for a de facto relationship for the purposes of social security benefits was dismissed. The Court found no evidence to support the wife's claim of a de facto relationship with the husband from 2004 to 2018.

Orders

Orders of the court

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Background

Background to the litigation

The husband is 81 years old. He suffers a dementia diagnosis which the wife says is alcohol related. He resides in an aged care home. The evidence is that he has been dependent upon others for some time for his day-to-day care.BACKGROUND Given the disabilities of the parties, there may be dispute as to the relevant background facts. Where, however, the wife provides a chronology in her case outline but the husband does not, I borrow from that chronology but on the understanding that there may be a dispute as to fact, detail, or accuracy. The husband was born in 1940 – aged 81 years. The wife was born in 1958 – aged 63 years. The parties met in 1991 when the wife started working at the husband's business at Suburb D. In 1996 the husband purchased a business at E Place where the wife says she worked seven days per week from 8.00am to 12.00am. In early 2000 the husband was charged with common assault with the wife listed as victim. In mid-2001 the husband was charged with common assault with the wife listed as victim. In early 2003 the husband and the wife purchased a property at 1 Q Street, Suburb D for $260,000. In early 2004 the husband and the wife entered into and signed documents towards a purported property settlement whereby the wife transferred her half share in the Suburb D property to the husband in return for a cash payment of $12,500. The “settlement” was not made with the imprimatur of the Family Courts. In early 2005 husband was recorded as a person of interest in a domestic violence complaint. In early 2005 the husband was charged with common assault with the wife listed victim. In late 2005 the husband was charged with breaching an apprehended violence order (‘AVO’) obtained against him by the wife. In late 2005 the husband was charged with breaching the AVO obtained against him by the wife. In 2009 the wife was declared bankrupt. In February 2010 the husband sold the property at 1 Q Street, Suburb D (unencumbered) for $379,000. In mid-February 2010 the husband purchased a property at R Street, Suburb F for $317,500. In mid-2012 the wife injured herself in a workplace accident while employed at EE Company. In November 2013 the husband purchased a property at S Street, Suburb F for $276,000. In December 2013 the husband sold the property at R Street, Suburb F for $350,000. During 2013 the wife says that she paid for improvements to the matrimonial home particularised at [32] of her affidavit. From 2016 – early 2020 the wife says that she was employed as an assistant for X Company and was also the husband's carer (which the husband disputes). The parties married in 2018. In 2019 the wife alleges that the husband became aggressive and flipped a coffee table toward her which hit her leg and foot such requiring medical treatment. In late 2019 the husband was diagnosed with dementia which the wife claims is alcohol related. In early 2020 the wife claims there to have been an incident whereby the husband “choked” her saying “you'll go before me”.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Similarly, the wife says that the Agreement of 26 March 2004 and the marriage of 2018 in themselves offer parameters to a relationship which continued between those dates.FINDINGS AND CONCLUSIONS On the balance of probabilities and with emphasis on the fact that the assertions and denials of each of the parties as to a de facto relationship between 2004 and 2018 cannot be tested by cross-examination, I cannot be satisfied that there was a de facto relationship. An onus sits on the party making an assertion of positive fact to prove that fact on the balance of probabilities. That onus sits in this case with the wife. She has previously made contrary representations as to the status of her relationship with the husband to Centrelink and in respect of her workers compensation claim. Centrelink documents show numerous addresses of the wife during the relevant years none of which coincide with the husband's residential address. She herself says that she purchased and lived in various properties during these periods giving by implication some duration to the parties being apart. There is no corroboration of the wife's claimed status in circumstances where she mentions in affidavits that her daughter might be available to give such corroboration. The wife herself could not be in court to give evidence or to explain the contradictory statements she made to various authorities during periods she now deposes to having been in a relationship. There is little if any evidence, and no undisputed evidence, as to significant mingling of finances between the parties. There is no independent evidence of any public exposure or acknowledgement of a committed de facto relationship between the parties. There is no jointly owned real estate during the relevant period. The wife's explanation of separations by reason of domestic violence can, in fact, be evidence of there not being a de facto relationship and particularly seen in the context of the various residential addresses given by the wife to Centrelink and her sole ownership of property. Statements by the wife in support of her application for an AVO after the marriage give some credence to the wife's assertion but can also be seen as self–serving and contrary to the weight accorded other facts. Where the wife is understandably not available for cross-examination on her assertions, the husband’s litigation guardian as a deponent to his affidavit was not required for cross-examination, although obviously available. Relatively, the husband through his litigation guardian particularises the chronology of the relationship whereas the wife's affidavit lacks particularisation in favour of generalisations. Similarly, the wife does not particularise her claims of domestic violence prior to the marriage in terms of either fact or time. On a weighing and balancing of all of these factors, I cannot be satisfied to the requisite standard of proof that the wife has made out her case of a de facto relationship between 2004 and 2018.

Ratio Decidendi

Legal Principle Established

The husband says that the parties were not in a de facto relationship for the relevant period. He does concede a period of approximately eight months in or about 2014. He relies on representations made by the wife to Centrelink and to other bodies contrary to her current representation of an ongoing de facto relationship. The husband also relies upon the Agreement of 2004 as to a property settlement but in his case as to the demise of that relationship.CONSIDERATION AND FINDINGS The wife says that the parties were in a continuing relationship but on an on–and–of basis from 1991 until their marriage in 2018. The husband says that the relationship did not assume the status of a de facto one during the relevant period save and except for a period of approximately eight months in 2014. The difficulty for the Court, of course, is that the disabilities of the each of the husband and the wife means that their evidence and assertions cannot be tested by cross-examination. As such, the Court is essentially left with noncontroversial or undisputed fact including any corroborative evidence in which to make determinations of fact. Similarly, where issues of credit are to the fore, the process for the Court is seriously limited by their being no testing of the evidence. My consideration and determination is consequently made within these limitations. I have found the wife's affidavit of 29 January 2021 to be of relatively little assistance. I make this comment with respect and understanding of the of the wife's infirmity. The affidavit, however, lacks particularisation in respect of issues and assertions that may help me in my determination. For example, the affidavit lacks particularisation as to points in time such as at [22] where the wife deposes:During the late 2000s, [the husband] and I were in and on–again–of–again relationship. I do not recall the exact periods of time when we separated but I do recall that when we did separate for a short period of time, I solely owned and lived in properties at [U Street] in [Suburb D] and at [T Street] in [Suburb K]. I do not recall when I purchased or sold these properties. Similarly, and where the wife asserts that the separations occurred as a result of domestic violence, she does not particularise any such instances save and except for allegations in respect of the period after the 2018 marriage. For instance, in her affidavit at [48] such allegations in respect of the relevant period of the asserted de facto relationship are limited to:From the early 2000s to early 2020, I always had a fear that [the husband] was trying to harm me. To the contrary, and albeit also untested, the husband through the affidavit of his son and litigation guardian, Mr B, offers greater particularity. For example, in the affidavit appears the following:[12]I am aware that [the wife] has stated that she commenced a relationship with [the husband] in 1991. I was in a business partnership with [the husband] in 1991 and had not seen or met [the wife] until she commenced working for [the husband] and in approximately around 1995 – 1996. I have always understood that [the wife] and [the husband] were first acquainted by work in the business. We employed [the wife] for a few shifts only at [the husband’s] business and we no longer required her when we split the business.[13]I am now aware after receiving the Centrelink Marital Status Screen for [the wife] that (sic) did not cease her marriage until 1992. Annexed hereto and marked with the letter “A” is a copy of the Centrelink Marital Status Screen history for [the wife]. (Original emphasis)…[15]I am now aware after receiving the Centrelink Customer Address History for [the wife] that she commenced living at [FF Street Suburb GG] on 23 October 1995 and ceased living there on 6 November 1995. … [16]I am now aware after receiving the Centrelink Customer Address History for [the wife] that she commenced living at [HH Street Suburb JJ] on 6 November 1995 and ceased living there on 9 February 1998. …[17][The husband] had a year (sic) went overseas and then bought the business in [E Place] in 1996. … I recall that my father's friend, [Mr CC], stayed with [the husband] in [E Place] alternately whenever he came over from [Country KK] to stay with [the husband] and to help him out with the business. [Mr CC] has since said to me “[the wife] wasn’t living with [the husband] at [E Place] any of the times I stayed there”.[18]I am now aware after receiving the Centrelink Customer Address History for [the wife] that she commenced living at [T Street, Suburb K] on 10 February 1998 and ceased living there on 4 April 2001. …