Herford and Berke
[2018] FCCA 3593
•5 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HERFORD & BERKE | [2018] FCCA 3593 |
| Catchwords: FAMILY LAW– The Family Law Act 1975 (Cth) and related legislation – Jurisdiction – De facto relationships – whether the de facto relationship broke down finally before 1 March 2009. |
| Legislation: Family Law Act 1975, s.4AA |
| Cases cited: Fenton & Marvel (2013) 51 Fam LR 142 Jonah & White (2011) 45 Fam LR 460 |
| Applicant: | MS HERFORD |
| Respondent: | MR BERKE |
| File Number: | BRC 3295 of 2017 |
| Judgment of: | Judge Jarrett |
| Hearing dates: | 17 and 18 August 2017 |
| Date of Last Submission: | 18 August 2017 |
| Delivered at: | Brisbane |
| Delivered on: | 5 December 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Flaherty |
| Solicitors for the Applicant: | Mullick & Associates |
| Counsel for the Respondent: | Ms McMillian QC |
| Solicitors for the Respondent: | Hopgood Ganim Lawyers |
ORDERS
THE COURT DECLARES THAT:
The de facto relationship that subsisted between the applicant and the respondent finally broke down before one March 2009.
THE COURT ORDERS THAT:
The application filed on 5 April 2017 dismissed.
Subject to any submissions from either party to be made in writing within seven (7) days of the delivery of this judgment, direct that:
(a)by the date no more than twenty-one (21) days after the delivery of these orders, any application for costs be notified by one party to the other by the filing and service of written submissions specifying:
(i) the precise orders for costs sought and any alternatives;
(ii) the argument in support of each order; and
(iii)whether that party is desirous of any oral hearing of the costs issue; and
(b)by the date no more than forty-two (42) days after the delivery of these orders, the respondent to any such application shall file and serve written submissions specifying:
(i) the precise orders sought by the respondent;
(ii) the argument in support of the response; and
(iii)whether that party is desirous of any oral hearing of the costs issue.
IT IS NOTED that publication of this judgment under the pseudonym Herford & Berke is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 3295 of 2017
| MS HERFORD |
Applicant
And
| MR BERKE |
Respondent
REASONS FOR JUDGMENT
The applicant filed an application for what appears to be property adjustment orders on 5 April 2017 although it is not entirely apparent whether some, or all, of the relief that she seeks is sought by way of maintenance. Ms Herford seeks orders that Mr Berke pay her the sum of $100,000, transfer to her his interest in a certain property at Town A, discharge any mortgages secured thereof and otherwise retain all assets in their sole name and possession.
The applicant contends that she and the respondent were in a de facto relationship that commenced in about 2002 and ceased in November 2015. She argues that the Court’s jurisdiction to make the types of orders provided for by Part VIIIAB of the Family Law Act 1975 (Cth) is engaged.
The respondent filed a response on 11 May 2015 in which he seeks the dismissal of the application. He seeks an order:
That there be a declaration that no de facto relationship existed between Ms Herford and Mr Berke on or after 1 March 2009.
The parties asked the Court to determine, as a preliminary issue, whether the Court had jurisdiction to entertain the applicant’s application. For that purpose, on 16 May 2017 I ordered that the relief sought by the respondent in paragraph 1 of the response filed 11 May 2017 be tried separately and as a preliminary issue to the determination of the applicant’s initiating application filed 5 April 2017. I also ordered that:
7. Each party file and serve on each other party no later than 4:00pm on 10 August 2017, a case outline setting out:
…
(d) a list of the findings of fact that the Court will be asked to make by that party at the conclusion of the hearing.
Each party submitted that the matter which requires the Court’s determination is whether a de facto relationship existed between the parties on or after 1 March 2009. The applicant submitted that the findings of fact which needed to be made were:
1. That, on the balance of probabilities, the Applicant and Respondent were in a “de facto relationship” within the meaning of S4AA of the Act for a period of not less than two (2) years after 1 March 2009.
2. That such de facto relationship ended in or about November 2015.
3. That during the course of the de facto relationship between the Applicant and Respondent, both the Applicant and Respondent were ordinarily resident in the State of Queensland.
The respondent submitted a list of much more precise and useful findings of fact for which he contended. He concluded that list with:
(o) At no time did their relationship amount to a de facto relationship during the [period from 1 March 2009 to November 2015].
On 16 May 2017 I ordered that the issue of whether a de facto relationship existed between Ms Herford and Mr Berke be tried as a separate and preliminary issue to the determination of Ms Herford’s initiating application. I also directed that the parties should deliver to the other party statements of the evidence in chief that they intended to give, together with statements by any witnesses that they intended to rely upon at trial. There was a direction that the parties and any witnesses would give their evidence-in-chief orally.
The statutory scheme
The commencement and operation of the provisions of the Family Law Act dealing with financial matters in de facto relationships was, with respect, usefully summarised by Murphy J in the decision of the Full Court of the Family Court of Australia in Fenton & Marvel (2013) 51 Fam LR 142. In that case, his Honour explained the circumstances in which federal courts such as the Family Court of Australia and the Federal Circuit Court of Australia have come to be invested with jurisdiction to determine property adjustment applications between de facto spouses. The passage is lengthy, but bears repeating:
Jurisdiction in De Facto Relationships
49. The jurisdiction to hear applications for property settlement orders emanating from de facto relationships arises by a referral of powers by the States to the Commonwealth (insofar as it pertains to Queensland, where this case arose and was heard, it arises via the Commonwealth Powers (De Facto Relationships) Act 2003 (Qld)). The [Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) (“the Amendment Act”)] effected the referral by inserting Part VIIIAB and making other consequential amendments (for example, Part VIIIB and s 4AA). The latter section defines the meaning of “de facto relationship.”
50. Section 86 of the Amendment Act provides, relevantly, that “Parts VIIIAB and VIIIB, and subsection 114(2A) of the [Family Law] Act do not apply in relation to a de facto relationship that broke down before commencement” (emphasis added). There is nothing in the Amendment Act that requires the relationship to be in existence as at the date of commencement so as to attract jurisdiction; the Amendment Act merely requires that the relationship broke down after commencement. No requirement of the (Family Law) Act specifies any such requirement.
51. Commencement was set at 1 March 2009. However, the Proclamation as made was, for reasons not relevant to this appeal, ineffective to establish that commencement date. Section 2(1) of the Family Law Amendment (Validation of Certain Orders and Other Measures) Act 2012 (Cth) cured that difficulty. The commencement date for the Amendment Act is now, validly, 1 March 2009.
52. If the jurisdiction of the court is to be attracted so as to permit the exercise of power to make a property order, a number of facts – indeed, “jurisdictional facts” (see, Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 at 148) – must be established and the findings of a trial court must reflect satisfaction of those facts on the evidence before the court. Those jurisdictional facts are found, relevantly, in s 86 of the Amendment Act, and ss 4AA and 90SB of the Act.
53. Taken together, the provisions of the Amendment Act and the Act specify that a court is required to find that a relationship did not break down before 1 March 2009; that the relationship which broke down after commencement was a “de facto relationship”; and, that the period, or total of the periods, of the de facto relationship is “at least 2 years”. Because s 86 refers to a “de facto relationship that broke down before commencement”, the first and second of the relevant findings are intertwined.
54. The requirement for the de facto relationship to have subsisted for “at least 2 years” can be met by aggregating periods of de facto relationship (see, Dahl & Hamblin [2011] FamCAFC 202; (2011) FLC 93-480). That fact gives rise to two considerations relevant to the other two jurisdictional facts just referred to. The first is that the de facto relationship must have broken down finally after 1 March 2009. Secondly, the finding that there was a de facto relationship subsisting for “at least two years”, can be comprised of findings that there were one or more periods of a de facto relationship in existence prior to commencement provided that at least some of the de facto relationship existed post-commencement. (That is because if at least some of the de facto relationship existed post-commencement, axiomatically, it cannot have broken down finally before commencement).
55. The legislative requirements have produced differing formulations of the test that must be applied if jurisdiction is to be attracted. Care must be taken if error is to be avoided. For example, other relevant factual findings may make it possible to say, on the particular facts of a case, that jurisdiction is attracted by reason of the de facto relationship being in existence “as at” or “on” 1 March 2009. But none of those formulations is the same thing as saying that a court must be satisfied that a de facto relationship existed “as at” or “on” 1 March 2009 so as to attract jurisdiction. While a finding that a de facto relationship exists “on” or “as at” 1 March 2009 may, in combination with other factual findings, encompass satisfaction of the relevant jurisdictional fact (that the de facto relationship did not break down finally before 1 March 2009), a finding alone that a de facto relationship existed “on” or “as at” that date does not do so.
56. In my view, the difference is not mere sophistry; at issue is a jurisdictional fact. There is no jurisdictional requirement to the effect that a de facto relationship must exist “as at” or “on” 1 March 2009.
Neither party sought to bring the decision in Fenton & Marvel (above) to my attention, nor have they sought to make any submissions having regard to what fell from the Full Court in that case. It seems to me, however, that to answer the question that has been posed for determination in this matter will be to repeat the error identified by the Full Court in Fenton & Marvel. I do not propose to do that.
It is appropriate to reformulate the question to be answered as follows: “Did the parties’ de facto relationship finally break down before 1 March 2009?”.
The evidence
Before commencing, a word about some of the evidence. A substantial amount of the documentary evidence takes the form of printouts of text messages. These are text messages which appear not to have been obtained through a telecommunications company but simply via the parties’ smart mobile telephones. The problem with this evidence is that there are instances where messages from either or both of the parties appear to have been omitted – deleted from the phone before the printouts are produced. Even if this is not the case, the essence of omission is plainly evident where conversations in the messages do not carry onto the next, or more importantly, the latter does not carry on from the former (or any messages in the vicinity of the former). It is for this reason that caution must be taken when approaching this evidence in this case and the weight to be ascribed to it. Ms Herford conceded the very point to which I have referred. She agreed that she selected the messages most favourable to her case. The same can be said about those tendered by counsel for Mr Berke.
Further, having considered all of the text messages, it is plain that there are a great many number of those text messages that favour the arguments that Ms Herford wishes to make in this case. There are many which are entirely consistent with these parties being in a close, loving relationship which is entirely consistent with them being in a de facto relationship for the purposes of the Family Law Act. There are also text messages which are entirely inconsistent with them having been in a de facto relationship. There are many text messages that are consistent with the case that Mr Berke wishes to promote namely that the parties, whilst in romantic relationship, were more in the nature of a boyfriend and girlfriend. Generally I found the text messages unhelpful.
Counsel for Ms Herford tendered an exhibit bundle in three separate parts due to its volume. The first part is comprised almost entirely of photographs. Out of context, and even in context to a certain extent, the photographs are of little to no probative value. Some are of interest and where they are I have taken them into consideration.
The parties met in 2002 when the applicant was living in Sydney with her son. The respondent was living on the Region B, Queensland. They commenced a relationship in 2002 and the parties agree that in … 2003 the applicant moved, with her son, to live with the respondent on the Region B in his home there. The applicant contends that their de facto relationship commenced in 2002 and the respondent contends that it commenced in 2003 when they started to live together, but it is unnecessary to resolve this dispute. It has no bearing on the outcome of this application. Despite some initial reservations with the proposition by Mr Berke, the parties agree that from at least 2003 they were in a de facto relationship with all that entails.
For the first six months of living with Mr Berke, Ms Herford was unemployed. Subsequently, she acquired work as a casual tradesperson. Her evidence was that he either requested or insisted that Ms Herford work only during school hours and not many weekends so that:
a)she could deliver and collect her son from school;
b)she could adequately attend to household chores; and
c)Ms Herford and Mr Berke could spend time together “as a family”.
Mr Berke, however, said that he had no input about the times or amounts that Ms Herford worked between 2009 and 2015. I accept his evidence about that. Given the domestic arrangements in the household, it is likely that Ms Herford determined for herself how much work she did and when so as to accommodate her son’s needs and that of their family unit.
The domestic nature of the parties’ relationship after they commenced co-habitation was such that:
a)Ms Herford undertook the majority, if not all, of the household duties including the cooking, cleaning, “household maintenance” and “shopping”; and
b)both parties attended together as a couple, and as a family when Ms Herford’s son joined them:
i)on frequent holidays;
ii)social outings such as weddings, funerals, parties, other work and family functions; and
iii)Ms Herford’s son’s school functions, graduation, sporting events and parent-teacher meetings.
Mr Berke owned the accommodation in which the parties lived. He was gainfully employed in his own business and provided the majority of the income for the household. There is no suggestion that Ms Herford contributed to the costs of occupation of that dwelling or the parties’ utility costs. That is not to say that she did not engage in income earning activities – as I have set out above she did – but it seems to have been Mr Berke’s primary role to make financial provision for the family. Ms Herford did contribute her income to food and other day-to-day living expenses.
When the parties were cohabitating, Ms Herford had the use of a motor vehicle that was either owned by Mr Berke or one of his business interests. Its running costs were fully maintained by Mr Berke’s business. When the parties moved to their separate accommodation as I shall detail shortly, Ms Herford continued to use that motor vehicle, again at no cost to her. At times Mr Berke required her to return it to him, but it seems that, generally, Ms Herford had its sole use. The text messages in evidence depict Ms Herford referring to the car as “my car” and Mr Berke referring to it, albeit less frequently, as “your car”.
Ms Herford maintained the use of that vehicle until mid-2016 when she returned the vehicle to Mr Berke and at a point after which, she said, their relationship had irretrievably broken down. Mr Berke also gave her a mobile telephone that was fully paid by him or one of his companies. The period of time during which this arrangement subsisted is not ascertainable on the evidence.
The parties agreed that for the period of their cohabitation from 2003 to late 2008, they undertook a myriad of activities together. They socialised together in their local area. They attended functions for members of each other’s families as a couple.
Despite his evidence that he was really only an interested onlooker, I am satisfied that Mr Berke took an active role in the parenting of Ms Herford’s son (his father had passed away some years earlier) and he was, I am satisfied, interested in his academic and sporting achievements. The parties attended schooling events and sporting events involving Ms Herford’s son together. Mr Berke was one of the main contact persons for Ms Herford’s son whilst her son was enrolled at school. In October 2014 or perhaps 2015 Ms Herford’s son commenced working for Mr Berke’s company. He is still employed as an apprentice tradesman under “no special circumstances”.
Mr Berke concedes many of the events and social occasions about which Ms Herford gave evidence (and provided photographs). His concessions are entirely consistent with the parties being in a de facto relationship during that period. Moreover, both parties gave evidence about “Berke family dinner nights”. Mr Berke’s father instigated weekly dinners to which family was invited to attend at varying venues each Wednesday night. Mr Berke said Ms Herford attended those dinners about half the time.
The parties would also travel together to Sydney and Town C in New South Wales to attend Ms Herford’s family’s gatherings and events such as Christmas celebrations and birthdays.
Mr Berke acquired two real properties in 2008 one of which was registered in his name and a business partner’s name and the other in his sole name. Mr Berke said that he did not discuss the purchases with Ms Herford. Ms Herford says that she knew about the purchases but she did not know that Mr Berke purchased one of the properties at Town D as a tenant in common in equal shares with another female person.
She was not involved financially in Mr Berke’s business.
Ms Herford’s evidence was that she moved out of their shared residence before November 2008. She moved to another unit dwelling which is owned by Mr Berke. It is about six houses away and so geographically, is very close to where they had lived together as a couple. Both parties agree that she moved out towards the end of 2008. The applicant identified that point in time on the basis that she was living in the second unit at the time of her birthday which is in … 2008. Mr Berke eventually conceded in his evidence that this event marked the end of the parties’ de facto relationship. Thereafter, he said, they were boyfriend and girlfriend rather than a “couple”.
Just why Ms Herford moved out is not at all clear. At best the evidence is that there were “problems” or “relationship difficulties”. Ms Herford’s evidence provided no insight into why it was that she and Mr Berke decided to take up separate residences. The highest Ms Herford’s evidence rose was to say that there were issues that they were “working out”. Her evidence did not identify what those issues were. She was asked in cross-examination whether after 2008 the parties continued on just as they had prior to them taking up separate residences. Ms Herford answered “yes” although she said some things had changed. Apart from identifying something to do with her son, she did not identify anything else that had changed. She was asked “what in your relationship with [Mr Berke] changed after 2008?” Ms Herford said that she did not know.
In cross-examination Ms Herford conceded that there were periods after 2008 when the parties were estranged. It was not explored in cross-examination what exactly was meant by that but Ms Herford suggested that there were periods of time (the length of which was not identified) in which the parties’ communication might have been described as “unfriendly”.
Mr Berke said the parties’ relationship was very good until 7 May 2007 when they had “some major issues”. He described the situation at that time as “living separately under the one roof”. However, Mr Berke initially gave evidence both orally and in affidavit that a de facto relationship never existed between the parties. Nonetheless, he later conceded that there was such a relationship between 2003 and Ms Herford’s moving out in 2008. Mr Berke’s contentions and the evidence that supports them were inconsistent. For example, Mr Berke contended the parties’ relationship was a “longstanding relationship” and in cross examination it was put to Mr Berke:
So your understanding, a long turning – a long turned – sorry. A long-standing friendship is the same as a de facto relationship, is that what you’re saying? --- Yes.
I found his evidence confused, confusing and at times, disingenuous.
I am satisfied, and I find that the parties were in a de facto relationship from 2003 until at least the time Ms Herford moved out of the couple’s joint residence.
In her evidence in chief, Ms Herford said that she paid no rent for her accommodation at the unit. The question of rent to be paid by Ms Herford for her occupation of the unit was contentious.
Mr Berke said that he understood that Ms Herford moved into his unit in mid-2008 as a tenant. Ms Herford said the parties often had disagreements about the issue of rent, but that until they finally separated in late 2015, she did not make any rental payments to him. It was a point of disagreement between her and Mr Berke from soon after she took up occupation of the unit that she did not pay rent. Her evidence is that he would ask her to pay rent, usually when he was drunk and angry with her. For example, in December 2008 (shortly after Ms Herford moved to live in separate accommodation), the police were called to a domestic disturbance at Ms Herford’s unit. Mr Berke had gone there drunk and had argued about Ms Herford paying rent. It is clear however, that there was still something of a respectful relationship between Ms Herford and Mr Berke because after that incident he wrote to Ms Herford and apologised to her for his conduct.
Mr Berke’s evidence about this issue was that:
a)the initial agreement was that Ms Herford would pay rent “of approximately $300.00 per week” and that it was paid “erratically”;
b)Ms Herford paid rent of approximately $2,000 in 2008, $3,000 in April 2009 and $1,000 on 18 September 2009. Upon payment of those amounts in cash Ms Herford said words to the effect of “here’s my rent money”;
c)on the advice of his accountant, he did not declare the rent received from Ms Herford or claim any expenses with respect to rent on his relevant tax returns;
d)Ms Herford stopped paying rent because, as he claims she said “Well, if I don’t pay, you are not going to kick me out”;
e)discussions took place in 2012 about the lack of payment of rent moneys. On at least one occasion Mr Berke said to Ms Herford “here are my bank details” and words to the effect that some firmer arrangements for rental payment were needed. That attempt to secure rent payments was unsuccessful;
f)he has not asked her to move out yet because he is waiting on the outcome of these proceedings;
g)he said if she does not voluntarily move out or commence paying rent he proposes to commence proceedings to cause her to vacate the unit. No steps have as of yet been taken; and
h)due to Ms Herford’s occupation of his property, in terms solely of lost rent, he has missed out on around $131,400 since June 2008.
Ms Herford does not agree with Mr Berke’s evidence. She said:
a)that she did not pay rent at all between 2008 and 2015. She said that the lump sum payments identified by Mr Berke were reimbursement for holiday expenses;
b)when it was put to her, that she and Mr Berke had a conversation about what would be a fair rent. She said she “had a look in the local paper at what rentals were” and then Mr Berke decided on $350 per week. She did not, however, pay that sum regularly; and
c)the conversations about her lack of rental payments occurred when Mr Berke had been drinking alcohol, as she puts it, “when he was angry”.
Both parties were cross-examined about certain Centrelink documents and the statements that they had made in those documents. It was put to Ms Herford that she did not inform Centrelink that she was in fact in a de facto relationship when applying for her relevant benefits. She said she only filled out “the form” once and even when her parenting payment ceased and her Newstart allowance began (during the course of the parties’ relationship on her evidence), she was not required to complete a new application. She said she was not aware that she was required to disclose her relationship status at any time. However, she also said that she was receiving rental assistance from Centrelink which at the very least implied that she was paying rent for her accommodation, even though, on her case she was not doing so. I do not accept her evidence that she did not know that she needed to disclose her relationship status at any time. Her answers in relation to the questions about these issues were evasive and unconvincing. They did her credit no good.
Mr Berke signed Centrelink documents for Ms Herford in 2009. It was put to him that by the documents he was asked to declare, as land or home owner, Ms Herford was paying him rent and that Mr Berke colluded with Ms Herford to misrepresent her position with respect to the use of his unit. The document, it seems, was an application to Centrelink for the receipt of some type of benefit, although what benefit is not in evidence. Effectively, Ms Herford had to declare that she was paying rent to a person with whom she was not in a de facto relationship. He seemed to accept that he signed a document but he could not recall the nature of the document he signed. However, he recalled why it was that Ms Herford signed the documents – so that she could continue to receive her Centrelink payments. I do not believe Mr Berke has now forgotten why he signed the documents. Plainly he signed the documents so that she could continue to receive her welfare payments. That would be consistent with an understanding on his part that the parties were not in a spousal relationship. His prevarication over this evidence is of concern.
Nonetheless, I prefer Mr Berke’s evidence about the question of an agreement to pay rent because on the evidence of both parties, the question of rent was an issue from soon after Ms Herford took up occupation of the unit. I find that there was an agreement at that time that Ms Herford would pay $300 per week, although that was never paid regularly. I am satisfied, and I find, that the lump sum payments made in 2008 and 2009 were payments of rent by Ms Herford. I reject her evidence that they were payment of or reimbursement of holiday expenses. That conclusion is consistent with the position taken by both parties with Centrelink and Ms Herford’s receipt of rental assistance. I see no reason to infer that these parties would deliberately set out to defraud Centelink by Ms Herford claiming entitlements to which she had no proper claim.
Ms Herford’s evidence was that after she moved into the unit, the parties’ relationship continued “as normal”. She said that they still went out as a couple although they were “working through a few things”. Her evidence was that the parties would meet each other or see each other nearly every day and they did things together after work such as socialise. She would also spend time with Mr Berke if she was not working by going to his workplace and spending lunch with him. Sometimes, when he needed to come to Brisbane for work purposes, she would come with him and spend the day in Brisbane whilst he attended to his business. They would then travel back to the Region B together.
The cost of social activities was normally shared and would often rotate with one paying for dinner one night and the other paying on next occasion. Mr Berke also said that Ms Herford always offered to pay. Mr Berke gave evidence that the parties dined out together for dinner frequently – between 15 and 40 times per year between 2009 and 2015 – for which Ms Herford “usually paid about 30% of the cost of the meals”. He said that they never bought each other groceries or gave each other money between 2009 and 2015 (save for a few exceptions) and denies that Ms Herford cooked for him after 2008. He said that he had cooked for her on about half a dozen occasions.
Ms Herford gave evidence that when she would go to Mr Berke’s house, it was generally by prearrangement with him. He would only come to her unit by prearrangement with her. Neither had a key to the other’s accommodation. Ms Herford gave evidence that when she would go to Mr Berke’s accommodation, they would sometimes attend to the usual household chores, she would do some cleaning or some washing or the like whilst Mr Berke attended to other matters. Mr Berke denied these matters and said that he solely undertook all of the cleaning, grocery shopping, household maintenance and clothes washing for himself. Ms Herford conceded that she did less housework for Mr Berke than she did before she moved out of his house in 2008.
I am satisfied that it is likely that Ms Herford did assist Mr Berke in the way she claims when she would visit his home. I do not think that it happened on every occasion, or even most occasions, but that what she did and when she did it varied upon the state of the parties’ relationship at any given point in time.
It is clear from the evidence that the parties’ relationship, however it might be described, varied in its climate. As Mr Berke puts it, between mid-2008 and November 2015 sometimes it was “very bad” and sometimes it was “very acrimonious” and it would vary from week to week with “times of friendship and times when we weren’t talking to each other”. Ms Herford did not seem to disagree with that general description.
Mr Berke said that the difference between the relationship from 2007 to 2009 was that Ms Herford lived some 100 metres or so down the road in a unit owned by Mr Berke, that they “were estranged for long periods”, but when they were not estranged they were together “as boyfriend and girlfriend” and continued to have sexual relations from time to time. They continued to text each other for the majority of the time after 2009 on a daily basis.
With respect to the periods of estrangement, Ms Herford’s evidence was that such periods were of no more than a few days, perhaps weeks. Mr Berke added “months”. Ms Herford said there were never months when there was no contact between the parties, albeit it was not always “friendly contact”, as it varied. She noted that in the text messages it might be difficult to see where the parties were estranged and where they are “actually spending time together” or on holiday together because the tenor of their communication did not always reflect their relationship status.
Mr Berke gave evidence that he kept a daily “diary” that covered periods relevant to these proceedings. He still keeps a daily diary according to his evidence. No diaries were adduced or tendered in evidence. Mr Berke gave evidence, having refreshed his memory from his diaries that:
a)since 2008 Mr Berke has stayed overnight in Ms Herford’s unit about ten times;
b)since 2009 Ms Herford has stayed overnight at Mr Berke’s house only once;
c)there had been no particular pattern by which the parties would spend time together, although “more often than not it would be weekends”;
d)Mr Berke visited Ms Herford at her unit for dinner between 15 and 40 times between 2011 and 2013, about seven times in 2014 and about six times in 2015;
e)Ms Herford visited Mr Berke at his house for dinner on less than 40 occasions between 2009 and 2015;
f)between 2009 and 2015 there has been no occasions where either party has spent “a whole day and a whole night” at the other’s residence; and
g)attendance at the other’s home was instigated by one person’s text to the other and depended on the week and how they were getting along. It usually involved sharing a meal or watching a television show.
I accept Mr Berke’s evidence about these things. He was not asked to produce his diary and his evidence was not the subject of serious challenge. He did say that he did not diarise every single occasion but that he kept a daily diary where he would record these things.
The parties went on holidays together both during their period of cohabitation and afterwards. The parties agree that after 2008 they continued to go on holidays together and attend some functions, events or social outings together. There seems to be a dispute about the extent to which the parties participated in things together. There was some importance placed upon the frequency in which the parties travelled on holidays together.
Ms Herford contended that they travelled often together, whilst Mr Berke, in his affidavit, said they had taken holidays together approximately three times between 2009 and 2015. Counsel for Ms Herford put to Mr Berke that it was something like 20 times. There was an abundance of photographs tendered in relation to this issue. The photographs purport to demonstrate that the parties travelled for holidays on many occasions – at least a lot more often than Mr Berke originally indicated. He accepted that they travelled to Country E, Sydney, Queensland, Country F, Melbourne, Adelaide and New Zealand, most of which were on more than one occasion. He denied each of those trips were “holidays” but conceded that his statement suggesting that the parties had only holidayed together three times since 2008 referred to “significant overseas holidays”. He accepted that there were other holidays together within Australia. Mr Berke would occasionally go on holidays without Ms Herford.
Initially, Ms Herford did not accept that the parties shared the costs of holidays that they took after 2008 or that she would reimburse Mr Berke for her share of the expenses but rather, one would buy something and the other would buy something else – they “didn’t go down to the last dollar on everything like that”. Later in cross examination she gave evidence that she often reimbursed Mr Berke in cash because he did not want money by way of bank transfers.
The costs of the three overseas holidays the parties took after 2009 were shared. Each provided their own spending money. The costs of Ms Herford’s son whom attended one of the holidays with the parties was shared equally. Shared payment or which of the parties would pay on any given occasion seems to have been dealt with on an ad hoc and informal basis – there was no tit for tat, quid pro quo or accounting of the relevant costs.
Whilst the parties lived together they were sexually intimate. They continued to be so, according to both parties’ evidence, when they commenced living in separate accommodation. Mr Berke said their level of intimacy reduced substantially although Ms Herford’s evidence was that whilst the number of intimate encounters were reduced, they were not reduced as much as was claimed by Mr Berke.
The parties seem to agree that sexual intimacy continued until about October 2015. Neither party contends to the contrary. Mr Berke gave evidence that since 2009 the parties had been sexually intimate about 30 times. When asked about how he could be certain he said that he does “diarise these things and I believe around 30 times” between 2009 and 2015, and particularly:
a)“three times” in 2009;
b)“approximately two or three times” in 2010;
c)“approximately two times” in 2011;
d)“ten times” in 2012;
e)“two times” in 2013;
f)“three times” in 2014; and
g)“seven times” in 2015.
When asked to give her own estimate, Ms Herford reluctantly nominated a frequency of approximately once per fortnight with an exception if the parties went on holidays together, when the frequency would increase. She did explain that Mr Berke had difficulty with intercourse and that occasions of sexual intimacy did not necessarily involve intercourse. Mr Berke’s evidence was given using the Clintonesque phrase “sexual relations” and perhaps his evidence was limited to occasions of intercourse rather than other intimate interactions. However, the evidence does not permit of a finding about that.
In early 2011 Mr Berke became seriously ill. He required surgery and was admitted to hospital for that purpose. There is no dispute that whilst he was in hospital Ms Herford visited Mr Berke although she asked him for money to do so because she could not afford parking costs at the hospital. He paid her $2,000 because she was driving down and paying for parking and because “she had lost time at work” and for some of her expenses. After he was discharged from hospital he returned to his accommodation but Ms Herford cared for him. His condition deteriorated and he returned to hospital after about two weeks at home. He required further surgery and was discharged with an open chest wound. Ms Herford said, and I accept, that she cared for Mr Berke upon his discharge from hospital and until he was well.
Mr Berke’s evidence is that during his recovery, Ms Herford brought Mr Berke “some supermarket items” for which he paid her. It was put to him that Ms Herford prepared his meals and assisted in his medications for his post-surgery recovery. He denied that she prepared his meals and instead deposed that he did it himself. I think Ms Herford’s version is more likely.
Mr Berke gave evidence that during the period of his hospitalisation, he said that the following conversation took place:
Ms Herford: do you have a Will up to date
Mr Berke: Yes I do
Ms Herford: Am I in it?
Mr Berke: No
Ms Herford: It needs to be redone, you should update it and include me
Ms Herford’s evidence of the conversation is that Mr Berke said “If we don’t get a good outcome out of this, you will be looked after. I’ve not made a new will, but Mr G is my executor, and he knows what I want. I will make sure he knows.” He did not execute a new will and Ms Herford was not a beneficiary under any will of his. I prefer Ms Herford’s evidence about this conversation over the evidence of Mr Berke.
At one point, Mr Berke was admitted to the Hospital and a document produced from that hospital in evidence described as “ient Assessment Record” (which I infer this means “Patient Assessment Record”). The relevant aspect of the document is this (my emphasis):
Next of kin
Name: Ms Herford
Relationship: partner
Contact No:
Relative/Friend
[box with tick] Present…
Mr Berke gave evidence that he could not recollect giving any information to the hospital.
Soon after, in April 2011 the parties had some discussions about whether they ought to be married. Ms Herford initiated the conversation and Mr Berke questioned why marriage was necessary. It seems that Ms Herford wanted some physical manifestation of the commitment she perceived between them. Ms Herford said the relevant conversation took place at a separate time to that of the conversation about the will. Her evidence of the conversation is as follows:
Mr Berke: Why would you like to get married?
Ms Herford:For my mum and dad, give them peace of mind and for commitment.
Mr Berke: I will just get you the ring. …
Because I don’t want to be married. …
What sort of ring do you want?
Ms Herford: I don’t want to pick it. I want you to pick it for me.
Mr Berke: but there’s too many out there. What sort do you want?
Ms Herford: I just want a solitaire. … I wear white gold.
In October 2011 Mr Berke gave Ms Herford an expensive solitaire ring and a box of chocolates and said that he loved her. Mr Berke described the circumstances leading to the presentation of the ring as follows:
a)they had conversations about the state of his health and the future;
b)Ms Herford wanted to be given a diamond ring before the end of 2011;
c)Ms Herford wanted a commitment that they would live together, although no time limitation was placed upon this; and
d)Mr Berke would change his will, as he said Ms Herford said “you really need to change your will, because if you die, I will be buggered.”
Mr Berke said that he gave Ms Herford a diamond ring “to shut her up”. He did not propose marriage to her. Nor does Ms Herford say that he proposed marriage to her. Mr Berke was asked, repeatedly, what was the purpose of the ring to which he answered “to shut her up” or words to the effect. He said that it was a gift: she wanted it, so he gave it to her. He said that he was given an “ultimatum” to give her a ring before the end of 2011. He said he has no idea why she wanted it – no idea why she wanted an $11,000 diamond ring – the type of ring which, Mr Berke conceded, is usually gifted for the purpose of engagement. Mr Berke’s evidence was that Ms Herford said that because they would never be married she deserved a ring. Mr Berke could not recall any other conversations about the ring. He categorises it as a gift in “the same category as any other gift of that value” and not for any other purpose.
I accept that Mr Berke gave Ms Herford an expensive solitaire ring and that it followed on upon a request for a ring from Ms Herford. I am not satisfied, however, that the ring represented an engagement of the parties to be married. I accept that Ms Herford wanted a commitment that the parties would live together at some time in the future and that the giving of the ring led to a perception by her that it might happen.
For four months in 2012 it seems that Mr Berke had “an affair” with another woman. Ms Herford found out and the parties’ relationship became more acrimonious than it had ever been. Whilst there are text messages in evidence which include statements such as “You’re a single woman who has a very occasional boyfriend” and “Have we tried too many times and now we don’t even like each other?” Ms Herford’s evidence is that they “fought a lot”.
Whilst Ms Herford said that she was not required to and did not pay rent for her accommodation, she did nonetheless meet the electricity expenses.
Mr Berke said the parties’ public appearances were limited, in that:
a)they did not receive joint invitations, have a joint email address or telephone and they did not have any good friends in common; and
b)they were not joint members of any associations; occasionally attending events together but also alone.
Ms Herford said the parties did in fact receive joint invitations, although, despite countless celebratory cards from Mr Berke to Ms Herford, there are no joint invitations in evidence. Some of the photographs in the evidence purport to demonstrate several different family functions. Mr Berke did not seem to deny many of those occasions, although the evidence to which he was taken, he thought, was insufficient to identify the particular function in the photograph.
The parties each occasionally attended the other’s family events such as birthday parties. For example, Ms Herford did not attend Mr Berke’s father’s 88th birthday party but Mr Berke attended Ms Herford’s mother’s 80th birthday party. Ms Herford attended Mr Berke’s work rarely – once a year over seven years. She attended two or three of his work’s Christmas parties.
Mr Berke accepted that he and Ms Herford went to several events in late 2014, early 2015 together as “a couple”. He accepted these included his work Christmas party on December 20 2014, a New Year’s Eve party on 31 December 2014, Ms Herford’s son’s birthday party on … 2015, a visit to his son and granddaughter in Brisbane on 17 January 2015, dinner with his father on 21 January 2015, a visit to Sydney for Ms Herford’s mother’s birthday on … 2015, lunch with Ms Herford’s nephew on 15 February 2015, a football game on 7 March 2015 and a concert on 11 March 2015. There are more examples extending to at least May 2015 including a holiday to New Zealand.
Sometime in 2015 or 2016 the parties came to an arrangement whereby Ms Herford would pay rent of some $100 per week and Ms Herford’s son would pay $20 per week. If these payments were made at all, they did not occur for long. Ms Herford said she began paying Mr Berke rent in 2016. I accept her evidence about that.
On 29 February 2016 in response to some questions about Ms Herford and her son’s accommodation, Mr Berke sent Ms Herford the following text message:
I don’t want to make it hard on you. I honestly don’t. I will not force anything on you. I understand that you need some security so in the time between now and you finally decide what you want to do, would you be willing to pay $100 per week? And I’ll ask [Ms Herford’s son] to pay $20 rent. I am doing this because I want to help. Contrary to what you think I’d NEVER EVER see you homeless
Mr Berke went to the trouble of tendering several of Ms Herford’s bank statements. They are, however, unremarkable. Their relevance, it seems to me, is limited. They detail the consistency which Ms Herford received various welfare benefits, but the focus that counsel for Mr Berke draws on is the money received from her son and the description which accompanies those transactions. For the periods 1 November 2011 to 31 October 2015 payments from Ms Herford’s son to Ms Herford appear some 26 times. The amounts vary from $37 (for “rent” in September 2015) to $1,140 (for “mum” in December 2014). The first payment occurred on 2 August 2014 which, it seems, would be sometime after the commencement of Ms Herford’s son’s employment with Mr Berke’s company. From 2 August 2014 until 2 August 2015 the description of the transactions are generally either “mum”, “savings” or “board”, and one occurrence of “Mr Berke” on 26 January 2015. From 22 September 2015 until 24 October 2015 the consecutive payments (varying from $37 to $100) are described as “rent”. It is the latter upon which counsel for Mr Berke focuses.
Ms Herford’s evidence about these payments made by her son is that after he began earning a wage he began paying her “board”. Board, she said, “was for the cooking, the cleaning, the groceries, the deodorants … everything that went along with him living in the house”. Her explanation for the “savings” is that she would “put his savings aside, so he couldn’t spend it”. For the later payments described as “rent”, Ms Herford said “I knew that that was my board” and “not what he wanted to save that week”. She does not know why he began describing the payments as “rent” instead of “board”. She stipulated that “it wasn’t for the unit”.
Ms Herford was also cross-examined about her tax return for the period ending 30 June 2016. Ms Herford claimed she had one dependent child when she admits that she did not. Further, she claimed that she did not have a spouse for that year although on her case before the Court she did for at least part of that year. Ms Herford claimed to believe spouse meant “a husband or a wife”. She also claimed as deductions car expenses for a vehicle for which she incurred no expenses as Mr Berke paid for everything. These answers, together with her answers about the Centrelink documents to which I have earlier referred, did Ms Herford’s credit no good.
Ms Herford said she had a supplementary credit card in Mr Berke’s name when they “first got together” but after the card expired she did not renew it. Mr Berke said she never had a credit card in his name. On one occasion Mr Berke gave to Ms Herford his credit card details for the sole purpose of purchasing Mr Berke a pair of shoes. He said that she did not have possession of the credit card. In November 2015 Ms Herford used the card details again. It has since been cancelled. Otherwise Ms Herford said she has never owned a credit card.
Mr Berke also said that the parties supported themselves on their own income between 2009 and 2015. He does not know how much Ms Herford earned, she was not named on his private health insurance policy and he did not know whether Ms Herford had her own private health insurance. She did not receive, he said, any distribution, loan, dividend or payment from any entities connected with Mr Berke.
Ms Herford called two other witnesses in support of her case: Mr M, her brother; and Ms N, a mutual friend of each party.
Ms N said the following things:
a)she met Mr Berke sometime before 2004 and met Ms Herford sometime in 2004;
b)she was a regular attendee of the local club, at which she met Mr Berke;
c)when she would speak with Mr Berke when Ms Herford was absent, she would ask about Ms Herford, to which Mr Berke would answer about what she had been doing;
d)she often saw the parties together “at the club, at my house, at her house” and “at the football”;
e)she remembers clearly that the parties shared a meal at her house on at least one occasion;
f)in 2010 she saw Ms Herford “wearing a ring that looked like an engagement-style ring that she said Mr Berke had given to her post-discussion – about discussing the opportunity of getting married”;
g)in 2013 she contacted Mr Berke to undertake some renovations to her house. After completion of the job she asked both parties to dinner to thank him for the work; and
h)in 2013, when Ms Herford, her son and Mr Berke attended Ms Herford’s son’s high school graduation, Ms N deposed to having seen Mr Berke there as Ms Herford’s “partner”.
In 2009, Ms Herford’s son commenced high school at the school at which Ms N was the tuckshop convenor and she came to see Ms Herford more regularly. She and Ms Herford were part of a larger group of people who would gather reasonably regularly for luncheon engagements. She gave evidence that she noticed in 2010 Ms Herford was wearing an engagement style ring although there was not much discussion about that.
She was asked about her perception of Ms Herford and Mr Berke. Her answers are illuminating. She said “I had always known them to be a couple – my perception was that she was Mr Berke’s girlfriend until I was told they had broken up by Ms Herford in 2015”.
I have no difficulty accepting Ms N’s evidence.
Mr M said the following things:
a)he met Mr Berke in 2002 at Ms Herford’s apartment in New South Wales, before she moved to Queensland;
b)he attended the celebration of Mr Berke’s 50th birthday;
c)from 2008, it seems, Mr Berke attended Ms Herford’s family events such as Christmas, Easter and birthdays;
d)since 2002, Mr M travelled to Town H to visit Ms Herford on six or seven occasions where he stayed at Mr Berke’s house;
e)in 2009, about ten family members all went to Town H, sharing accommodation between Mr Berke’s house and Ms Herford’s unit. This accommodation arrangement occurred on at least one other occasion;
f)on at least three occasions the parties, on their way to Town C where Ms Herford’s parents lived, stayed at properties of Mr M: a unit he and his wife own at Suburb J, a rental property he and his wife occupied at Suburb K and a rental property in which he and his wife currently live at Suburb L;
g)in 2012, the parties together attended Mr M’s wedding; and
h)in 2013, Mr M, his wife and daughter visited Ms Herford in Town H and attended a lunch with Mr Berke at the club.
As senior counsel for Mr Berke pointed out in cross-examination, most of Mr M’s evidence was characterised by what “would have” occurred when Ms Herford and Mr Berke attended various family functions in Sydney. It became apparent that his evidence was not evidence of his recollection of actual events, but rather was supposition about what “would have” occurred. There were only two occasions about which he seemingly had any proper recollection of having seen Ms Herford and Mr Berke together after 2009. His evidence was of limited value.
Some more principles
A person is in a de facto relationship with another person if, relevantly, having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis: s.4AA(1) of the Family Law Act.
Section 4AA(2) of the Family Law Act sets out that the circumstances of the relationship that may lead to the conclusion that a de facto relationship exists include:
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; and
i)the reputation and public aspects of the relationship.
No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether a de facto relationship exists between two people: s.4AA(3) of the Family Law Act.
A de facto relationship is necessarily different to a marriage relationship in terms of the Court’s ability to define when it begins and ends. That de facto relationships are “by nature fragile” was succinctly described by Dutney J (with whom McPherson and Williams JA agreed) in S & B [2005] 1 Qd R 537 where his Honour said at paragraph 33:
De facto relationships are by nature fragile. The robust institution of marriage survives until formally dissolved by legal process, even though the parties are no longer a couple and exhibit none of the observable indicia of a domestic arrangement. It has been recognised, however, that the persistence of those indicia are fundamental to the continuance of a de facto relationship. In Hibberson v George (1989) 12 Fam. L.R. 725 at 739–740 Mahoney JA, with whom Hope and McHugh JJA agreed, spoke of the de facto relationship as follows:
There is, of course, more to the relevant relationship than living in the same house. But there is, I think, a significant distinction between the relationship of marriage and the instant relationship. The relationship of marriage, being based in law, continues notwithstanding that all of the things for which it was created have ceased. Parties will live in the relationship of marriage notwithstanding that they are separated, without children, and without the exchange of the incidents which the relationship normally involves. The essence of the present relationship lies, not in law, but in a de facto situation. I do not mean by this that cohabitation is essential to its continuance: holidays and the like show this. But where one party determines not to 'live together' with the other and in that sense keeps apart, the relationship ceases, even though it be merely, as it was suggested in the present case, to enable the one party or the other to decide whether it should continue.
The onus is upon Ms Herford to prove that “the positive aspects of the relationship” that demonstrate the de facto relationship, continued past 1 March 2009 so that it could not be said that the relationship had finally broken down before that date. Dutney J (in S & B above) after stating that in marriage cases the party alleging separation bears the onus of establishing that separation had occurred, said at paragraph 50:
…the reverse applies in the case of a defacto relationship in the sense that the party asserting the continuing relationship must prove the positive aspects of the relationship rather than the party asserting separation being required to prove the negatives.
It appears to be the case that it is not necessary for either party to communicate with the other that the de facto relationship is over. In S & B, the Court of Appeal applied a passage from Mahoney J in Hibberson v George (1989) 12 Fam LR 725 in these terms:
... a de facto relationship ends when one party decides he or she no longer wishes to live in the required degree of mutuality with the other but to live apart. It does not seem to me that it is necessary to communicate this intention to the other party providing the party that is desirous of ending the relationship acts on his or her decision. I do not think it is necessary that the other party agree with or accept the decision. Once the parties cease to jointly wish to reside together in a genuine domestic relationship, a situation usually ascertained by looking objectively at the whole circumstances of the relationship, the de facto relationship ceases. The relationship ceases even though one party is still anxious to try to save it.
Consideration
The parties were never married. They both accept that they were in a relationship from about 2003 until at least late 2008 and that their relationship should be seen as a de facto relationship for the purposes of the Family Law Act.
During the period of their admitted de facto relationship, it was characterised by the following:
a)the parties living in the same accommodation;
b)the parties presenting to the outside world as a couple through their social engagements and attendance at family events;
c)sexual intimacy between the parties;
d)exclusivity in terms of other romantic or sexual partners;
e)the parties contributing to the household through undertaking day-to-day tasks which they allocated amongst themselves, if not expressly, then certainly by implication;
f)the provision by Mr Berke to Ms Herford of accommodation for she and her son;
g)the provision by Mr Berke to Ms Herford of a motor vehicle at no cost and mobile telephone at no cost;
h)the retention by Ms Herford of her income save that part of it was used by her to contribute to the day-to-day living expenses of the parties and her son;
i)the continuation by Mr Berke of his business undertakings including the purchase of real property without discussion with or the inclusion of Ms Herford; and
j)the provision of assistance, comfort and support when needed.
From late 2008, the parties continued their relationship and, on the evidence, it was characterised by the following:
a)the parties living in separate accommodation;
b)only very occasionally staying over in each other’s accommodation;
c)the parties, on the only rather reliable evidence before me, presenting to the outside world as a couple in the nature of “boyfriend and girlfriend”;
d)sexual intimacy between them although on a less frequent basis;
e)no exclusivity in terms of other romantic or sexual partners at least insofar as Mr Berke was concerned;
f)neither party contributing to the household of the other except for the occasional performance by Ms Herford of some day-to-day tasks in Mr Berke’s home;
g)the provision by Mr Berke to Ms Herford of accommodation for she and her son although on the basis that she was to pay rent for that accommodation;
h)the provision by Mr Berke to Ms Herford of a motor vehicle at no cost and most probably, a mobile telephone at no cost;
i)the retention by Ms Herford of her income;
j)retention by Mr Berke of his income; and
k)the provision of assistance, comfort and support when needed.
It will be appreciated that many of the matters that were present when the parties were in a de facto relationship, continued to be present after Ms Herford moved from their shared accommodation in late 2008. But three matters, in my view, are of considerable significance. The first is the cessation of the parties’ cohabitation. Whilst it is not necessary for the parties to occupy the same accommodation for them to continue to be in a de facto relationship it is a matter, in my view in this case, of significance because the decision to cease co-habitation seems to have been a joint decision of the parties. It was not a decision forced on them because one of them fell ill for example or was prevented for one reason or another from occupying the same premises as the other. They did not attend upon each other unannounced. Their visits to each other’s accommodation was by prearrangement. Neither had a key to the other’s home.
The second matter is that the accommodation was not provided rent-free. I have found that there was an agreement between the parties for Ms Herford to pay Mr Berke rent. She paid some rent although none since 2010. Given the nature of the parties’ relationship it is conceivable that Mr Berke did not press Ms Herford for the payment of rent. It is something, however, that he raised with her from time to time – there are text messages to that effect. It seems to have been raised by him, however, when the parties’ relationship was not doing so well. An agreement about the payment of rent, and the payment of rent, in respect of Ms Herford’s accommodation is, in my view, inconsistent with a manifestation of “coupledom” which involves the merger of two lives: cf Jonah v White (2011) 45 Fam LR 460.
The third matter of significance is the coming to an end of the provision of daily assistance and the completion of day-to-day tasks normally associated with parties living in the same household. I accept Mr Berke’s evidence that after the parties ceased cohabitation, they largely provided for their own day-to-day needs. There were occasions when they slept over at each other’s accommodation and there were occasions when they shared meals. There are references to those matters in the text messages. But Mr Berke’s evidence was that those occurrences were far less frequent than Ms Herford suggested. So too was his evidence about the parties’ sexual interaction. He gave his evidence by reference to diaries that he had kept. He was not challenged about that evidence or his diaries. As I have indicated above, I prefer Mr Berke’s evidence to that of Ms Herford about these matters.
The fourth matter is the fact that Mr Berke thought that the parties’ relationship was nonexclusive such that he saw himself able to engage in a relationship with another woman in 2012. There is reference in the text messages to Ms Herford having done the same although she denied it.
The fourth is the refusal of Mr Berke to commit to a long-term exclusive relationship with Ms Herford by agreeing to get married. Whilst it is of significance that Mr Berke purchased and gave to Ms Herford a ring traditionally associated with an engagement, I accept his evidence that it was not his intention to signify to her that they were engaged. That is not to deny that Mr Berke did not have a relationship with Ms Herford, romantic or otherwise. But the question is whether the relationship was a de facto relationship for the purposes of the Family Law Act and whether that relationship had finally broken down before 1 March 2009. It is inconsistent, in my view with a mutual commitment by each of the parties to a shared life together.
I do not think the existence of cards passing from Mr Berke to Ms Herford (see Exhibit 1 part two) in which he expresses his love for her “now and always” advance the matter much further. Those cards, sent on celebrated re-occasions such as birthdays and Christmas are equally consistent with the parties being in a de facto relationship as they are with them being in a romantic relationship but something less than, or different to, a de facto relationship.
Finally, that they considered that they should report to Centrelink that they were not in a de facto relationship and that Ms Herford was paying rent to Mr Berke, is a good indication that the parties did not consider that the relationship was not a de facto relationship. That Ms Herford reported to Centrelink as much, can be inferred from Exhibit 7 in the proceedings – the Centrelink PAYG payment summaries for the years 2010, 2011, 2012, 2013 which notes that she was receiving a payment type “Parent Payment Single”.
Ms Herford made the same report to the taxation authorities although some years later in her income tax return for the financial year ended 30 June 2016.
In addition to those matters, apart from the provision of the accommodation, a motor vehicle and the telephone to which I have already referred, there was no financial interdependence between these parties at all. They held no joint bank accounts and they held no joint property. Ms Herford was not involved in Mr Berke’s business in any respect. The evidence clearly demonstrates that they shared the costs of travel between them more or less equally and reimbursed each other when one purchased an item of property for the other. The evidence was that they each furnished their own accommodation at their own cost.
Conclusion
In my view, the parties’ de facto relationship had finally broken down before 1 March 2009. Their de facto relationship broke down when Ms Herford and her son moved from the parties’ shared accommodation. Whilst their romantic relationship continued after that time, in my view, for the reasons I have given above, it was not a de facto relationship for the purposes of the Family Law Act. Whilst they were a couple, Ms N’s description of them as “boyfriend and girlfriend” was most apt.
In the circumstances, it is appropriate to declare that the parties’ de facto relationship broke down finally before 1 March 2009 and that otherwise the application filed on 5 April 2017 be dismissed. I will make orders permitting cost applications should parties be so advised.
I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of Judge Jarrett.
Date: 5 December 2018
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