Hoffmann and Braddock
[2019] FCCA 144
•8 January 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HOFFMANN & BRADDOCK | [2019] FCCA 144 |
| Catchwords: FAMILY LAW – Property – section 90RD declaration – whether a de facto relationship existed between the parties – whether the de facto relationship is a foundation for jurisdiction – where the Applicant has invoked the Court’s jurisdiction but now agitates that the Court is without jurisdiction. |
| Legislation: Family Law Act 1975 ss.4AA, 90RD, pt.VIIIAB |
| Cases cited: Stanford v Stanford [2012] HCA 52 Jonah & White [2011] FamCA 221 |
| Applicant: | MR HOFFMANN |
| Respondent: | MS BRADDOCK |
| File Number: | PAC 1467 of 2018 |
| Judgment of: | Judge Harman |
| Hearing date: | 8 January 2019 |
| Date of Last Submission: | 8 January 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 8 January 2019 |
REPRESENTATION
| Counsel for the Applicant: | Appears in person |
| Counsel for the Respondent: | Mr Blackah of Counsel |
| Solicitors for the Respondent: | Amanda Little & Associates |
ORDERS
Pursuant to section 90RD of the Family Law Act 1975, I declare that the parties Mr Hoffmann and Ms Braddock have been in a de facto relationship with each other for a period commencing no earlier than …2007 and concluding no later than November 2017.
Reserve the costs of the Respondent with respect to the section 90RD determination to be determined at trial.
The matter is adjourned for further mention and directions to 20 May 2019 at 12noon.
By consent Orders are made in accordance with the Terms of Settlement executed by the parties marked Exhibit ‘A’ attached hereto.
In the event that all issues are not resolved through negotiation following completion of disclosure and valuation, each party shall ensure by no later than close of business 10 May 2019, that their trial Affidavit material is filed, comprising one Affidavit per witness.
IT IS NOTED that publication of this judgment under the pseudonym Hoffmann & Braddock is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 1467 of 2018
| MR HOFFMANN |
Applicant
And
| MS BRADDOCK |
Respondent
REASONS FOR JUDGMENT
These proceedings come before the Court today for the purpose of determination pursuant to section 90RD of the Family Law Act1975, that is, a determination as to whether the parties to the proceedings have ever resided together in a de facto relationship and, if so, whether the de facto relationship can appropriately be a foundation for jurisdiction. To be so would require that the relationship meet the requirements that section 90RD refers to, namely, that the parties have been parties to a de facto relationship for a period or periods of not less than two years and which period or periods concluded not less than two years prior to the commencement of proceedings.
Irrespective of how the relationship between the parties might be described, (for it is to be noted from the outset that there is no dispute between the parties that they have engaged in a relationship with each other, the issue is merely, whether it is a relationship which would be typified by reference to section 4AA of the Family Law Act1975 as a “de facto relationship”), the relationship ceased no less than two years prior to the commencement of these proceedings.
The curious conundrum in these proceedings arises from the very Application by which the proceedings were commenced.
The proceedings were commenced by an Application Initiating Proceedings filed by Mr Hoffmann on 7 April 2018. Having invoked this Court’s jurisdiction, Mr Hoffmann now agitates that the Court is without jurisdiction.
The parties are somewhat at odds as to whether the relationship between them, however it is so described, ceased in October or a specific date in November 2017, only some few months prior to the commencement of the proceedings. Nothing turns upon whether the cessation of the relationship was October or November 2017.
A conundrum arises from that Application as it alleges, at paragraphs 25 and 27 thereof:
(25) Date parties commenced to live together, …2008.
(27) Date of final separation, 13 November 2017.
That Application has since been amended. In the further amended Application filed by Mr Hoffmann on 26 July 2018, those details, (i.e., paragraphs 25 and 27), are left blank or indicated as being not applicable.
In response to the Initiating Application as originally framed, the Respondent, Ms Braddock, filed a Response on 1 June 2018. That Response indicated, at paragraph 19A, details of facts in dispute:
The parties have not resided together as a de facto couple. The parties had been “boyfriend/girlfriend” during the asserted period but did not cohabit. It is asserted the parties commenced their relationship in …2007 and separated in October 2017.
What is curious is that both parties, by their respective Application and Response, could be described as submitting to the Court’s jurisdiction. Each seeks substantive relief.
It would seem that the genesis of this controversy arises from paragraph 19A of the Response as initially filed. As a consequence of the filing of that Response and shortly thereafter, on 21 June 2018, an Amended Application was first filed by Mr Hoffmann which sought that the proceedings be transferred to the Victorian Supreme Court Equity Division. It is a moot point as to whether this Court has jurisdiction to accede to or grant such relief, but I am satisfied I need not determine that issue for reasons that will become readily apparent.
The Further Amended Initiating Application, filed 26 July 2018, then went on to seek relief in the alternative:
If the Honourable Court is not of the mind to transfer these proceedings to the Supreme Court, then I humbly seek the following orders to be made.
Again, one might interpret the alternate relief or plea therefore as a submission to jurisdiction. However, as the issue of jurisdiction is raised, it must be determined.
Evidence relied upon
In the case of the Applicant, I have read and considered the documents identified, comprising a trial Affidavit filed 2 November 2018, together with the Further Amended Application, 26 July 2018. A Case Outline document has also been provided by Mr Hoffmann and is augmented by oral submissions at the conclusion of the proceedings today.
In the case of Ms Braddock, I have read and considered her Amended Response filed 1 August 2018, her Affidavit filed 28 September 2018, together with portions of material earlier filed by Mr Hoffmann and as identified comprising the Initiating Application filed on 7 April 2018 and the paragraphs referred to in evidence together with paragraphs 12 and 22. For the sake of completeness, those paragraphs indicate, respectively “Paragraph 12 description, party to a de facto relationship that has broken down. 22 is in the same terms.”
In addition, paragraph 3 of Mr Hoffmann’s Affidavit filed in support of the Initiating application on 7 April 2018 is relied upon. There are also a number of exhibits in the proceedings comprising exhibit A1, a building contract entered into by Ms Braddock with a builder. Within that contract, the portion of relevance is the suggested owner of the property as disclosed within the contract between Ms Braddock and the builder. The owner is identified as being Ms Braddock only.
Exhibit A2 comprises a portion of Ms Braddock’s earlier Affidavit in similar terms to that which is related in the Response as initially framed, making the same assertion, “We have never cohabited”.
Exhibit A3 comprises paragraph 13A of an earlier Affidavit of Ms Braddock filed on 1 August 2018 which suggests a date of separation in June 2017 rather than October 2017, (the later date having been consistently alleged by Ms Braddock in her trial Affidavit together with two earlier Affidavits). The latter tender occurs in circumstances, it would seem, suggested to support a submission that the relationship did not have the qualities of a de facto relationship of significant or sufficient importance to Ms Braddock in that she is unable to recall the date of its termination.
History of proceedings
The matter has not been before the Court for any significant period of time. Tragically, it would appear that the parties had, prior to proceedings being commenced, agreed with each other – at least so it is alleged by Mr Hoffmann – to a resolution of all financial disputes between them. The parties would appear to have acted upon that which is alleged as the agreement, whether it was, in fact, ever a total agreement between the parties. It must be observed that this Court does not exercise jurisdiction as a Court of Contract and cannot, thus, enforce contractual agreements between parties. The Court’s jurisdiction is to adjust interests in property, as described and elucidated by the High Court of Australia in Stanford v Stanford [2012] HCA 52.
The proceedings are suggested, by Mr Hoffmann, to have been commenced so that the parties might jointly have entered into Orders which would then enable them to avoid - although I do not use that term to suggest any improper behaviour by one or the other - the payment of stamp duty on the transfer by Mr Hoffmann to Ms Braddock of Mr Hoffmann’s interest in a particular parcel of real estate.
The matter was initially filed in the Family Court of Australia. That is regrettable, as the matter was clearly always within this Court’s jurisdiction. There is, of course, a process within the Family Court to enable Orders to be made by consent without the commencement of proceedings, (or at least proceedings which involve the allocation of a Court date). If such a process had been used by the parties jointly, the matter may have ended at that point. It was not. The matter, accordingly, came before a Registrar by way of Case Assessment Conference Financial on 1 June 2018. At that point in time, the Registrar’s bench sheet notes:
There may be an issue as to jurisdiction, ie, were the parties in a de facto relationship. The applicant will get legal advice. There appears to be little factual dispute.
Accordingly, the proceedings were, quite appropriately in the circumstances and on the first return date of the matter before the Family Court, transferred to this Court, the Court which, would have been the appropriate filing jurisdiction.
The matter first came before this Court on 13 August 2018. On that occasion, it was noted that the Applicant had filed and served the Affidavit material that was to be relied upon by him with respect to the jurisdictional hearing. Accordingly, directions were made for the Respondent to file Affidavit material, her Response having been filed on the first return date of the proceedings in the Family Court.
The matter then returned before the Court by way of call over 7 November 2018. On that occasion, both parties had filed all that was required of them and confirmed that it was so. The matter was, accordingly, listed for trial to today. The matter has proceeded today on the basis of the material identified and cross-examination of Ms Braddock by Mr Hoffmann and oral submissions by Mr Hoffmann, who has appeared on his own behalf, and by Ms Braddock’s Counsel. I have also considered the Case Outline documents each have filed.
The Registrar’s observation that the matter was not factually complex and was, indeed, subject to significant factual agreement was relatively accurate. The parties do, indeed, agree on a great deal. It is almost irresistible to observe that until such time as Ms Braddock’s Response was filed with the statement recited above, that there was no issue raised by Mr Hoffmann with respect to jurisdiction. Indeed, the Application as then filed sought to invoke this Court’s coercive jurisdiction under Part VIIIAB of the Act to make Orders adjusting interest in property between parties to a de facto relationship.
The Affidavit that was initially filed by Mr Hoffmann does not, perhaps, elucidate further evidence beyond the mere assertion contained within his Application. The closest it comes in paragraph 2, which reads:
The applicant was living in Victoria and the respondent was living in New South Wales with their respective children from previous marriages.
I pause to observe that Ms Braddock’s children would appear to have been from a de facto relationship, although nothing whatsoever turns upon that distinction.
The paragraph continues and concludes:
Both parties periodically travelling interstate to spend time with each other.
On that broad assertion, the existence of a de facto relationship might well be open to question. Indeed, the question was raised by the paragraph of Ms Braddock’s Response to which I have referred. That issue is, to some extent, clarified, however by Ms Braddock’s evidence as filed and the submissions put by her Counsel. Certainly, at paragraph 8 of her Affidavit, Ms Braddock is clear, “We have never cohabited on a full-time basis”. That, of course, is not fatal to a finding that the parties have lived together in a de facto relationship and for reasons that I will return to.
In her trial Affidavit, Ms Braddock asserts that the parties commenced a long distance relationship in or around …2007, (paragraph 5). Mr Hoffmann says a year later. There is no dispute that the parties lived, throughout the period of their relationship with each other, however it may be so described, in different states – Melbourne and Sydney respectively. There is no dispute that the parties were never married. There is no dispute that the parties are not related to each other in any other way.
There is the modest dispute, that I have already referred to, as to whether the relationship, however it might be so described, concluded in October 2017 or November 2017. Again, nothing whatsoever turns upon that reality. It is purely an issue as to whether the parties had engaged in a relationship with each other for a period slightly in excess of nine years or slightly in excess of 10 years.
There is very little dispute as to the factual circumstances of financial dealings in which the parties have engaged, whether jointly or individually, during this relationship.
There is no factual controversy in relation to financial issues which, if but for this jurisdictional dispute, could have been the focus of conciliation, mediation or arbitration between these parties and a very rapid disposal thereof. These are both commercially savvy litigants who would, I am satisfied, have no difficulty, with appropriate guidance and assistance, find a resolution, and one would hope hereafter may well do so, irrespective of the jurisdiction in which they find themselves.
The significant issue in relation to property, without needing to determine that issue for present purposes, relates to a parcel of real estate at Property A. The parties own that property and had purchased it as tenants in common as to 20 per cent to the Applicant and 80 per cent to the Respondent. There is no controversy that the 20 per cent portion of the property acquired by the Applicant was funded from the proceeds of sale of a property previously owned by him, and that the 80 per cent portion of the property was paid for or funded by a mortgage obtained in the joint names of the parties.
It would appear that, consequent upon that which would appear to have been, at that point in time, a concluded agreement between the parties, a transfer in relation to the property occurred. A transfer of Mr Hoffmann’s interest to Ms Braddock, occurred. A document to that effect was prepared and filed. That can be inferred, as Ms Braddock makes clear that she has paid stamp duty with respect to that transfer and its lodgement. Accordingly, the property is now held in Ms Braddock’s sole name.
The parties are dramatically at odds as to the relief that they each seek by reference to their most recently filed Application or Response. The Applicant seeking to be paid a sum certain, which on Ms Braddock’s case represents all of the equity in the property. The Respondent seeks to be paid a sum certain, far more modest perhaps than the Applicant’s claim. The basis upon which the respective cases are advanced is not known, nor need that be known for present purposes, as all that is determined by this Judgment is the jurisdictional controversy.
I do not propose to canvass the evidence in any further or greater detail at this time. I will refer to aspects of the evidence by reference to the relevant case law, which I will now turn to and seek to summarise through the far more erudite and authoritative descriptions of Judges of the Family Court of Australia and Full Court of the Family Court of Australia, commencing by incorporating paragraphs 6 to 21 of Cronin J’s decision in Taisha & Peng and Anor [2012] FamCA 385. It eruditely sets out the legal issues to be determined by this Court as to whether a de facto relationship has existed between these parties, as opposed to a relationship of a more broad definition:
6. Because the Court can only exercise its powers to deal with the parties’ property if there existed a de facto relationship, the declaration of the existence of that de facto relationship is in the nature of a jurisdictional fact (see Jonah and White [2011] FamCA 221). The onus is on the applicant to establish that the Court has that jurisdiction.
Because the Court can only exercise its powers to deal with the parties’ property if there existed a de facto relationship, the declaration of the existence of that de facto relationship is in the nature of a jurisdictional fact (see Jonah & White). The onus is on the Applicant to establish that the Court has that jurisdiction.
Curiously, the Applicant seeks to deny that this Court has that jurisdiction, notwithstanding that the Application Initiating Proceedings, that which invoked this Court’s jurisdiction, professed that the Court held such jurisdiction and submitted to it. His Honour continued:
7. The definition of a de facto relationship is set out in s 4AA(1) of the Act. It provides:
(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.
8. Section 4AA(2) provides certain circumstances that might give rise to a conclusion that people were having a relationship as a couple. No particular finding in relation to any of the defined circumstances is to be regarded as necessary (see s 4AA(3)).
9. Section 4AA(2) is prefaced by a heading which reads “Working out if persons have a relationship as a couple”. In my view, it is not necessary to look to s 4AA(2) unless there is some definitional uncertainty from a literal reading of s 4AA(1). The latter section has mandatory requirements but the wording of the former, indicates it is to be used as a guide for the purposes of s 4AA(1).
10. Albeit the requisite elements of s 4AA(1) must be proved, interestingly, s 4AA(4) provides:
(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.
11. Thus, while the onus is on the applicant to prove on the balance of probabilities that a de facto relationship existed, the Court may attach whatever weight it considers appropriate. The Evidence Act 1995 (Cth) applies (see s 4(1)) and s 140 requires the Court to apply the standard of proof which is described as the balance of probabilities although it would seem that the weighting and the balancing task is much less formal than in other civil proceedings. In my view, s 4AA(4) does not ameliorate the requirement for the applicant to prove her case on that transparent standard.
12. In Moby and Shulter [2010] FamCA 748 Mushin J looked at s 4AA(1) and said:
137. …in Simonis v Perpetual Trustee Co. Limited (1987) DFC 95-052, Kearney J agreed with the approach of Powell J referred to in the previous paragraph and held (p 75,589):
I consider that the expression under consideration constitutes a single composite expression of a comprehensive notion or concept, and therefore has to be approached by considering the expression as a whole and not in several parts.
138. The approaches of both Powell J and Kearney J quoted above were adopted by the Court of Appeal of the Supreme Court of New South Wales in Light v Anderson (1992) DFC 95-120.
139. While I respectfully agree with the approach of their Honours, before the definition may be considered as constituting "a single composite expression of a comprehensive notion or concept", there are two specific elements of that definition which require individual consideration. The first of those is the concept of "a couple". For the purposes of the definition, "a couple" is constituted by two people, whether of the same or opposite sexes.
140. The second specific element is the concept of "living together".
It is to be remembered that it is the assertion of the Respondent that the parties had not lived together that would appear to have now generated this controversy. Whether the Response of the Applicant was opportunistic to that assertion or otherwise, I need not be concerned. His Honour continued:
13. It has also been said that it is the composite picture that must be looked at and any attempt to isolate individual factors and attribute to them relative degrees of …importance involves a denial of common experience and will almost inevitably be productive of error (see Barry and Dalrymple [2010] FamCA 1271 referring to the Full Court of the Federal Court of Australia in Lynam v Director-General of Social Security (1983) 52 ALR 128). Whilst a composite picture is clearly the only way any case can be determined here, these are mandatory requirements because they go to jurisdiction. Without proving that the parties were a “couple”, there can be no de facto relationship just as conversely, if a couple of people live together but there is no domestic relationship, the section is not satisfied.
14. In Moby and Shulter (supra) Mushin J went on to examine s 4AA(2) as it applied to the parties in that case. With respect, in my view, that exercise is not necessary unless the jurisdictional fact cannot be established from a consideration of s 4AA(1) alone. That is supported by the explanatory memorandum to the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 where in respect of s 4AA(1) the memorandum referred to the requirements whilst s 4AA(2) was referred to as providing a list of circumstances for a court to consider.
15. Turning then to the two requirements. The applicant must establish that the parties were a couple and then establish that the couple lived together in a domestic relationship. The word “genuine” in my view, adds nothing to the definition.
16. The word “couple” is not defined.
17. The Australian Bureau of Statistics defines a “couple relationship” as:
being two people usually residing in the same household who share a social, economic and emotional bond usually associated with marriage and who consider their relationship to be a marriage or marriage-like union. This relationship is identified by the presence of a registered marriage or a de facto marriage. (See website DBS).
I note that that definition is used for census purposes.
18. The Shorter Oxford Dictionary defines “couple” as a union of two. (See 6th edit (2007)). The very word “couple” comes from the Latin which is a tie or a bond.
19. In Jonah and White (supra) Murphy J defined the relationship as being a de facto relationship when the parties had so merged their lives that they were for all practical purposes, living together as a couple which he thought was the “manifestation of coupledom”. His Honour said that it was the nature of the union that lay at the heart of the statutory considerations. I cannot add to what Murphy J said and I respectfully adopt his view.
20. But there must still be evidence of a domestic relationship. Mushin J in Moby and Shulter (supra) at para 167 said it was not a term of art but had to be given its ordinary meaning. I respectfully also adopt that because, having regard to s 4AA(4), the Court can take a wide discretionary view of the way in which the parties themselves conducted their relationship. Even having said that however, a domestic relationship must be one in which there are activities of running a household or shared households. That is, something must be seen to be related to domesticity which refers to home conditions and arrangements. For example, it could be indicated by people coming and going as if entitled to use and share the home’s facilities which is quite distinct from a boarding house or backpacking hostel where individuality reigns.
21. A couple therefore living in a domestic relationship is the opposite of a couple of individuals.
His Honour canvasses dictionary definitions and an abundance of both Federal and State determinations with respect to whether a de facto relationship can be established.
Similarly, I incorporate the erudite discussion of Tree J in McMaster & Wyhler [2013] FamCA 989 at paragraphs 5 to 10:
5. Pursuant to s.90RD(1) of the Family Law Act 1975 (Cth) (“the Act”) this Court is empowered in proceedings brought under, amongst other provisions, s.90SM of the Act, to declare for the purposes of those proceedings that a de facto relationship existed, or never existed, between the parties.
6. The definition of “de facto” relationship for the purposes of the Act is contained in s.4AA. Sub-section (1) provides as follows:
4AA(a) 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 sub-section (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 affect subject to sub-section (5).
7. Sub-section (5) provides as follows:
For the purposes of this Act:
(a) a de facto relationship can exist between two persons of different sexes and between two 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.
8. Some elaboration of the circumstances relevant to working out if persons have a relationship as a couple is contained in sub-section (2). That provides as follows:
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.
9. Statutory guidance as to the inter-relationship of those circumstances, and the weight to be given to them, is provided in sub-sections (3) and (4) as follows:
(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.
10. 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) Whilst a composite expression, it is comprised of two parts “a couple” and “living together” each of which must be established;
(e) There need not be full time living together;
(f) The relationship may be unhappy, but still subsisting;
(g) Sexual or other exclusivity is not necessary;
(h) The gist of the inquiry is the degree to which parties have merged their lives into one. That connotes financial, emotional and physical interdependence.
In particular, the last paragraph of his Honour’s erudite discussion is of some real assistance in summarising a substantial body of case law which preceded that decision.
The above matters are subject to the comments that are made in various other decisions, and in particular paragraphs 11 and 12 of Vaughan & Bele [2011] FamCA 436 and paragraphs 163 and 164 of Moby & Schulter [2010] FamCA 748, incorporated within the above portions of Vaughan & Bele, and which point out the many and myriad real differences between a marriage and a de facto relationship. So I incorporate those paragraphs, namely, paragraphs 11 and 12 of Vaughan & Bele, herein:
11. However in Moby & Schulter [2010] FamCA 748; (2010) FLC 93-447 for the purposes of deciding whether the parties were in a de facto relationship, Mushin J thought it inappropriate to look at the parallel situation of a marriage. His Honour said:
163. In my view, it is inappropriate to try to draw parallels between marriage and a de facto relationship as contemplated by the legislation. Marriage is celebrated in accordance with a formal process prescribed by legislation (Marriage Act 1961) and is proven by a Certificate issued pursuant to that legislation. In contrast, a de facto relationship may be evidenced by registration pursuant to the laws of some State jurisdictions but that is not a necessity and is not relevant in this matter. The Court's jurisdiction to determine an application for alteration of property interests between two people who are or have been married to each other is based on the formality of marriage including the Certificate.
164. There are other significant differences between a marriage and a de facto relationship for the purpose of the legislation. A marriage can only be between a man and a woman. The legislation includes a de facto relationship between two people of the same sex. It is a criminal offence for a person to be a party to two marriages simultaneously. The legislation enables a person to be in two de facto relationships or one or more de facto relationships and a marriage simultaneously. While the legislation includes "the degree of mutual commitment to a shared life" as one of the relevant circumstances, sometimes referred to in the context of marriage as "consortium vitae", there is no requirement that there be such a commitment in order for a de facto relationship to exist.
12. The critical question about when something comes to an end is whether it existed in the first place or, as in many relationships, satisfied the legal requirements such that it could be said to exist at some or various times.
Pertinently, the discussion undertaken by Cronin J in Vaughan & Bele concludes at paragraph 11 with the statement (emphasis added):
It is the parties who define the nature of their relationship.
With respect, I agree. It is the parties who define the nature of their relationship. It may evolve and alter dramatically over time. For that purpose, the legislature provided various requirements such as section 90SB and section 90SK.
Tree J continued in his summary to indicate that the Court must also look at this very issue, that the parties determine their relationship, and that a relationship may evolve or even alter, perhaps dramatically, over time. His Honour also germanely observed, in reference to and in summary of Moby & Schulter, that the parties need not live together full time for a de facto relationship to be found.
I am also conscious of the discussion by my sister Judge Riley in Tang & Vo [2016] FCCA 880, paragraphs 22 and 23 thereof, it is a matter of statutory interpretation that parties need not live together full-time as parties can be in simultaneous or multiple relationships. At those paragraphs Judge Riley says:
22. It is also noteworthy that s.4AA(5)(b) of the Act contemplates that a person can be in two different de facto relationships simultaneously. It follows that a person can live with two different people during the same period. Therefore, a person can be in a de facto relationship with another person even though they are not living together every day. However, because s.4AA(1)(c) of the Act requires that the parties live together, the period or periods of cohabitation must satisfy the normal understanding of living together, as opposed to merely staying over from time to time.
23. Often, it will seem obvious that a person lives at a particular address because it is their address as shown on their driver’s licence and on other official or third party documents. However, as we know, people sometimes change address without notifying the authorities or service providers.
Having already observed that the genesis of this controversy would appear to be the assertion, in the Response filed by Ms Braddock, that the parties have never cohabited, it must be indicated clearly that Ms Braddock was wrong. The parties have cohabited. It may be that the parties take different interpretations of those words, but for the purposes of section 4AA of the Act, cohabitation involves some sharing of accommodation by the parties in something beyond a casual relationship, namely, as a couple living together on a genuine domestic basis. That is a matter to which I will return.
The definition of “de facto relationship” in section 4AA contemplates that parties may be in more than one relationship simultaneously. I do not suggest that these parties lead evidence that it is so. However, that must be concrete demonstration of the reality that parties need not necessarily live together full time. Each of the parties would appear, at one point or another, to assert that the parties were boyfriend and girlfriend rather than living a de facto relationship. Indeed the submissions put by Mr Hoffmann are clear that the relationship would not appear, from Ms Braddock’s perspective, to have assumed such significance or importance for her to remember particular dates or events.
It was conceded by Mr Hoffmann, and I will take it as an admission against interest, even though put during submissions rather than in his evidence, that the parties had discussed with each other the future of their relationship prior to the purchase of the Property A property.
It is also quite clear, not only from the material before the Court referred to in submissions by Counsel for Ms Braddock but by Mr Hoffman’s responses thereto during submissions (not raised as a criticism of Mr Hoffmann, merely an observation) that the relationship had great importance to him. He was very clear in indicating that he loved, and still loved, Ms Braddock.
Love, of course, is not the test, as the Full Court of the Federal Court had made clear in the authority referred to above, having commenced that authority by quoting the words of Frank Sinatra in the famous “Love and Marriage”. Parties need not be happy or in love for them to be married.
A further discussion of case law was undertaken eruditely by Murphy J in Jonah & White, and I incorporate paragraphs 47 to 66 thereof:
47. In Moby v Schulter, above, Mushin J considered a number of authorities in State jurisdictions. His Honour agreed with the approach exemplified in earlier decisions in New South Wales, including Roy v Sturgeon [1986] DFC 95-031; Simonis v Perpetual Trustee Co Ltd [1987] 21 NSWLR 677 and the decision of the NSW Court of Appeal in Light v Anderson [1992] DFC 95-102. His Honour went on to say:
139. While I respectfully agree with the approach of their Honours, before the definition may be considered as constituting “a single composite expression of a comprehensive notion or concept” there are two specific elements of that definition which require individual considerations. The first of those is the concept of “a couple”. For the purposes of the definition, “a couple” is constituted by two people whether of the same or opposite sexes.
140. The second specific element is the concept of “living together”. In my view, if a couple do not live together at any time, they cannot be seen as being in a de facto relationship. However, the concept of “living together” does not import any concept of proportion of time. In particular, it does not require that a couple live together on a full time basis. On the basis that one or both members of the couple may also be legally married or in another de facto relationship at the same time as they are in the subject relationship, it must follow that it is feasible that the subject relationship might involve the parties living together for no more than half of the time of that relationship. Further, there is nothing to suggest that it must be even as much as half of the time.
141. Subject to the above, the question of whether the parties were in a de facto relationship must be considered on a case-by-case basis without circumscribing any particular factor.
48. His Honour’s approach might be seen to embrace Powell J’s approach in Simonis v Perpetual Trustee C Ltd at 685 where Powell J held that the (then) definition of “living with … on a bona fide domestic basis” (in s 6 of the Family Provision Act 1982 (NSW)) was “a single composite expression of a comprehensive notion or concept, and therefore has to be approached by considering the expression as a whole and not in several parts”.
49. In Hayes v Marquis [2008] NSWCA 10, McColl JA held that the effect of earlier decisions of the New South Wales courts, including the Court of Appeal, meant that “practically, [it is] … necessary to consider the evidence as a whole, not under isolated headings” (citing Barnes v de Jesus [2001] NSWSC 19 at [26] per Windeyer J). Her Honour went on to hold that “… the concept of ‘living together’ will always be something different from living together as a couple, one of the critical requirements for a de facto relationship”. There, her Honour was distinguishing de facto relationship from a “close personal relationship”, an expression which is separately defined in the Property (Relationships) Act 1984 (NSW).
50. In the same case, Einstein J held (albeit in the respect of the definition of the “close personal relationship” in s 5(1)(b) of that NSW Act) that:
166. Upon its proper construction the expression “living together” in the context of the instant legislation is to be understood as referring to the sharing of a home: that is to say to co-habit/to dwell together. The test is an objective one. It involves assessing the nature and extent of the claimed common residence. To live together requires that the two adult persons be seen as regarding the place or places in which they live as “their home”. Both of them might not always be found in that home because from time to time family or business requirements or similar may require one or both to spend some time elsewhere cf: Re Fagan deceased [1980] 5 FamLR 813 where Jacobs J observed [at 822] that “there may be states of cohabitation where (the partners) see as much of each other as they can”, to which I would add – “in the circumstances”. But the dominant parameter will be whether or not the individuals concerned may be discerned to regard the premises in question as their home and in so doing to be acting reasonable.
51. That passage was cited with approval by White J in the NSW Supreme Court in Vaughan v Hoskovich [2010] NSWSC 706. His Honour said in respect of the definition of de facto relationship within the NSW legislation that:
51. What is clear from ss 4(3) is that satisfaction of the requirement that the persons live together as a couple does not require that they share a common residence on a full time basis. There are of course many examples of people who can be said to live together, although one or the other is away for long periods. A partner who takes an overseas posting, or who goes to sea in the course of his or her occupation for long periods, will not cease to live with his or her partner because of extended absences …
52. The approach just referred to is consistent with decisions of the Queensland Court of Appeal. (See e.g. PY v CY [2005] QCA 247; KQ v HAE [2006] QCA 489; FO v HAF [2006] QCA 555).
53. It is, however, important to bear in mind that the emphasis on common residence (whether for varying periods of time or not) is but one of the specific factors enumerated within s 4AA of the Act. The section specifically provides that no particular finding in respect of that matter (or indeed any other specified circumstance) is “to be regarded as necessary in deciding whether the persons have a de facto relationship”.
54. Nevertheless, as has been observed in respect of that specific consideration in the NSW legislation:
[50] One of the circumstances of the relationship to be taken into account under s 4(2) is para (b), namely the nature and extent of common residence. Subsection 4(3) provides that no finding in respect of any of the matters mentioned in subss (2)(a)-(i) is to be regarded as necessary for the existence of a de facto relationship. That is curious as it seems difficult to see how parties could be said to be living together as a couple if they never had a common residence. However, in Piris v Egan [2008] NSWCA 59, Campbell J said (at [146]) that:
[146] … it should be recalled that the list of “circumstances” in s 4(2) are reminders of matters that possibly might be relevant in deciding whether two people are in a de facto relationship, but do not state its essence. The essence is to be found in the definition in s 4(1). If two people do not “live together as a couple” they do not satisfy the definition of being in a de facto relationship, regardless of what might be the situation concerning the various “circumstances” listed in s 4(2).
(Vaughan v Hoskovich, above).
55. Again, the approach there exemplified can be seen to be consistent with authorities in Queensland where a very similar legislative regime has been considered. Underlying those authorities is a necessity to establish the existence of “a relationship as a couple living together on a genuine domestic basis” informed by, but not necessarily determined solely by, the individual findings with respect to the list of circumstances.
56. In KQ v HAE [2006] QCA 489; [2007] 2 Qd R 32 the Queensland Court of Appeal (McMurdo P, Keane and Holmes JJA) held in a joint judgment:
[19] These considerations all lend support to the view taken in earlier cases that a “de facto relationship” will not be established for the purposes of Pt 19 of the Property Law Act [1974] [PLA] unless it can be seen that “the parties have so merged their lives that they were, for all practical purposes, living together as a married couple. (Citing Thompson v Department of Social Welfare [1994] 2 NZLR 369 at 374; Mao v Peddley [2002] DFC 77,515 at 77, 522 and K v H-J [2006] QSC 168 at [67].)
57. The Court also held in that case:
[18] Obviously, the scope of the expression “de facto relationship” in Pt 19 of the PLA is not strictly limited by the genesis of the expression in popular speech. For example, the provisions of Pt 19 are not confined to relationships between men and women. Nevertheless, the nature of the association involved in the marriage relationship is instructive in this context. It is clear from s 32DA(4) of the Acts Interpretation Act that Pt 19 of the PLA is not concerned with the relationship between people who merely live in the same household and share living expenses; the PLA is not concerned with the relationship between friends who share a household, or with that between carer and patient. Further, the fact that two people have a sexual relationship will not suffice to establish that they are “de facto partners”. This is clearly so, by reason of the fundamental requirement that the parties must be “living together as a couple on a genuine domestic basis”.
…
[20] It may also be accepted that a continuing cohabitation in a common residence is not necessary to establish the continuation of a “de facto relationship”, at least where the parties have lived together and have not effected a permanent separation. Nevertheless, the definition of “de facto relationship” suggests that, usually, the parties should have, at some stage, been “living together as a couple on a genuine domestic basis”. The fact that the parties have never lived together in a common abode must be acknowledged to be an indicator that they have not “lived together as a couple on a genuine domestic basis”. This indication will be especially significant where the parties have not shared the common burden of maintaining a household. It would be a wholly exceptional case in which one could conclude that a man and a woman, who have never lived together as husband and wife in a common residence, and who have never made provision for their mutual support, have been “living together as a couple on a genuine domestic basis”. That conclusion is not justified by the mere circumstance that the parties, or one of them, at some stage, intended eventually to marry. Such a case is one where friendship, or even courtship, has not matured into the commitment whereby the parties have so merged their lives that they were, for all practical purposes, living together as a married couple.
58. It is in my opinion instructive that the Commonwealth legislature did not provide for relief of the type contemplated by Part VIIIAB of the Act in circumstances where one party has, by their words or actions, provided care, love or support to another or, indeed, in circumstances where one party has induced in the other an expectation of a relationship of greater commitment than that which transpired. Rather, the legislature has made provision for that relief upon satisfaction of the jurisdictional fact that a relationship of a particular, statutorily-defined, type exists.
59. In that respect it seems to me also instructive that the Commonwealth legislature did not provide for relief of that type in circumstances where two people were parties to, for example, a “domestic relationship”, or, as in New South Wales, a “close personal relationship” but, rather, only where parties were in a “de facto relationship” as defined.
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.
61. Differences in nomenclature tend to confuse the picture rather than illuminate it. For example, counsel for the applicant submitted – in my view correctly – that a relationship which one party regards as “an affair” might in fact be a de facto relationship as defined. So, too, a woman who might be described as “a kept woman” (an expression accepted by the respondent upon suggestion from counsel for the applicant) might, similarly, describe one party’s perception of the relationship but, when all factors and the circumstances are considered, the relationship might nevertheless meet the definition of a “de facto relationship”.
62. It is submitted by the respondent that “exclusivity is reinforced by s 4AA(1)(c)” and it is submitted further that, “without doubt this sub-section describes an exclusive relationship between two people”. The argument refers to marriage analogously. I reject that submission. Marriage has exclusivity as an element because the Marriage Act 1961 (Cth) definition demands it. It is, however, in my view in any event clear, by reference to the terms of s 4AA(5)(b) that exclusivity is not a necessary element of a de facto relationship.
63. The respondent, in written submissions, further contends that:
… in every common law or statutory context a unifying principle for a finding that there was a de facto relationship was its exclusivity. In fact many defences to such applications for a declaration were based on a party claiming they had been in an exclusive relationship with another person at the time, were married or conversely leading a polygamist lifestyle.
64. No authority is cited for that proposition. The proposition seems to me to be, with respect, erroneous. An example of the contrary position can be seen in Vaughan v Hoskovic, above, where reference is made to s 61B(3A) of the Probate and Administration Act 1898 (NSW). The section envisages an intestate dying and leaving “a spouse and a de facto spouse”. Moreover, as pointed out in that case, in Green v Green (1989) 17 NSWLR 343, Gleeson CJ said (at 346) that “the deceased was married, had two de facto wives, and maintained simultaneous domestic relationships with all three women and their respective children.”
65. It seems to me to be clearly established by authority that the fact that, for example, the parties live in the same residence, for only a small part of each week does not exclude the possibility that they are “living together as a couple on a genuine domestic basis” or that the maintenance of separate residences is necessarily inconsistent with parties having a de facto relationship. So much is, in my view, clear from the statutory recognition that parties to a relationship can be married but also be in a de facto relationship.
66. The issue, as it seems to me, is the nature of the union rather than how it manifests itself in quantities of joint time. It is the nature of the union – the merger of two individual lives into life as a couple – that lies at the heart of the statutory considerations and the non-exhaustive nature of them and, in turn, a finding that there is a “de facto relationship”.
Each of these authorities are the starting point as to how the factual determination is made of whether these parties have, to the Court’s satisfaction, lived together in a de facto relationship. I propose to address each of the considerations in subsections (1) and (2) specifically.
Subsection (1) of section 4AA, as already indicated, requires that, for a finding to be made that a person is in a de facto relationship with another person, that those persons must not be legally married. They are not. Without intending to cause any distress to either of these parties, they were, at one point in time, (although, it would seem, for a period of months and before the parties determined, jointly or individually, to end that circumstance), engaged to be married. That enterprise had advanced to the point of various samples having been obtained of wedding invitations, sadly to a wedding that did not eventuate. The parties clearly are not legally married to each other.
To the extent that it is submitted that the ring that was given at the time of the proposal being cheap, (the proposal being described in some detail by Ms Braddock as her being met at the airport, having returned from an overseas trip, with Mr Hoffmann present to meet her, having travelled from Melbourne for the purpose, with a large sign containing his proposal, and then providing what is described as “a cosmetic jewellery ring”), I am not concerned that the quality of the jewellery provided as the seal of the promise, as it were, is relevant.
As their Honours comprising the Full Court of the Federal Court had commenced by referring to Mr Sinatra’s lyrics, I had raised with the parties that which arose in “Breakfast at Tiffany’s”, the provision of a crackerjack ring as the basis of sealing a marriage proposal. The quality of the ring is not the issue here. It is submitted by Mr Hoffmann that the quality of jewellery provided might be an element of assessing the strength of conviction to a relationship. I do not share that opinion. Parties provide what they provide. Suffice to observe, there is no marriage which would preclude the finding of a de facto relationship.
The parties are certainly not related by family. Thus, I am left to consider all of the circumstances of this relationship, as an individual relationship rather than by comparison to any arbitrary statistical norm, and determine whether it is a relationship of a couple living together on a genuine domestic basis.
I am satisfied that some regard to the factors in subsection (2) would assist in the factual determination, absent consent of the parties to the determination by these parties. No one factor is dispositive but I will consider each.
A. Duration of the Relationship
At this point, one need not necessarily refer to the relationship as a de facto relationship, merely in a more generic sense. There is no controversy that the parties’ relationship subsisted for at least nine if not 10 years. There is no dispute that the parties lived, for all of that time, in separate states. Curiously, at some point shortly after the breakdown of the relationship, Mr Hoffmann did briefly move to the same area, the Region 1 of Sydney, where the property at Property A is held, and where Ms Braddock lives. It would seem he has now returned to Melbourne. That is an issue of some importance in relation to all of the circumstances of the relationship.
The evidence of Mr Hoffmann is that his home was in Melbourne, and that Ms Braddock’s was in Sydney. Ms Braddock does not cavil with that proposition. It is an agreed fact. However, all of the circumstances of the relationship between these parties need to be considered. These are not childhood sweethearts. These are adults at, or approaching, middle age, (without intending any offence to either of them), and who have had the experience of relationships previously. Indeed, they each have children from those relationships.
Mr Hoffmann’s children live, or lived, for the majority of this relationship, in Melbourne; Ms Braddock’s children live in Sydney. Thus, there is some context or explanation to the assertion of where the parties’ homes were, without reading more into that matter. There would have been complications for either to leave, at least whilst their children were under 18. They would have required some degree of consultation, consent or other compromise by their former partners, the other parent of their children.
It is not a simple matter, as this Court is well aware from its volume of relocation cases, for a parent with minor children to simply move because they wish to repartner. Sometimes parents do that. It often leads to disastrous consequences in terms of Applications for restraint.
The relationship, in its duration, is substantial, as observed by Ms Braddock in her evidence, quite lengthy, certainly longer than the statistical average for a marriage in this country, was significant.
The relationship is agreed to have been non-continuous, on and off. There is no dispute that there were a number of separations. Ms Braddock gives a particular description that, whenever required to travel overseas for work purposes, that there would be something in the nature of a breaking-up between the parties, and a rekindling of the relationship during her absence and/or upon her return. I have no reason to doubt that evidence. It is entirely consistent with Mr Hoffmann’s, although not necessarily accepting the motives that Ms Braddock impugns to Mr Hoffmann.
The relationship has not been continuous, as Mr Hoffmann submits, at least not to the extent that there has never been separation. But that, of itself, is not fatal. Marriages experience separation, de facto relationships experience separation, parties taking a break from each other, arguing and coming apart and coming back together.
One curious aspect of the evidence is the introduction by Mr Hoffmann into evidence that, following separation, in either October or November 2017, and as recently as January 2018, only some months prior to the filing of the Application, that he had travelled to Sydney and stayed with Ms Braddock at the home at Property A, (their jointly owned property), and that they had therein engaged in a reconsummation of the physical aspects of their relationship.
It is submitted that this would contraindicate the importance of the parties’ engagement in a sexual relationship with each other as being a factor of relevance in finding a de facto relationship. I am not so satisfied. It is perhaps simply an indication, especially when taken within the context of that which Mr Hoffmann puts during submissions, that he always loved and still does love Ms Braddock, of a desire to see if the relationship could be repaired, or perhaps other bases. It is possibly more supportive of the importance of the relationship to each than the contrary.
The duration of the relationship certainly suggests a degree of mutual commitment to that relationship. For the parties, for nine or possibly ten years, to have continued to practice their relationship with each other must indicate a degree of commitment.
In addition thereto, there are then various aspects, particularly of Ms Braddock’s evidence, as to which she has not been challenged, which also suggest a significant shared commitment, going towards a genuine domestic basis to their coupledom.
Mr Hoffmann titles himself, on his Facebook page, (paragraph 38 of Ms Braddock’s Affidavit), as “In a relationship with Ms Braddock”. There are numerous extracts from Mr Hoffmann’s Facebook page, commencing at paragraph 40, of events in which the parties have engaged with each other, holding themselves out therein as a couple, whether a de facto couple or otherwise, clearly evidencing their mutual affection and commitment to each other.
There is the evidence of Ms Braddock that she has travelled to Melbourne approximately each alternate weekend for the period of the relationship. True it is, as Mr Hoffmann submits, that her work has required her to travel to Melbourne – indeed, overseas and many other cities – as part of her employment. However, Ms Braddock’s evidence, again as to which she is not challenged, is that she has, by and large, arranged with her employer to be able to travel to Melbourne as frequently as possible, and that certain arrangements have been in place. Indeed, Mr Hoffmann gives evidence of the same arrangements.
It is clear from the evidence of both of the parties that, on some occasions when Ms Braddock has travelled to Melbourne to spend time at the home of Mr Hoffmann with Mr Hoffmann, that other work colleagues have also stayed. Thus, to the extent that it is suggested that the parties’ relationship has or has always been clandestine or not held out to others of these parties being a couple, it could not be so. Indeed, the description given by Mr Hoffmann during his closing submissions is that the relationship commenced as a clandestine affair, and grew to the point that they were eventually engaged, although, again, regrettably, that engagement would appear to have been broken.
At paragraph 69 onwards of Ms Braddock’s Affidavit are numerous photographs of the parties engaged in joint activities, including jointly hosting dinner parties at the Property A property, joint holidays with each other, and with the children of each or some thereof; and similar occasions of significance to them. These might be suggested to suggest and to have some impact upon their degree of commitment to each other.
To the extent that the submission is put, or perhaps inferred, that the relationship was not of significance or importance to the parties or either of them, particularly based upon their behaviour at separation, not, as was submitted, shedding a tear, that which commences at paragraph 92 of Ms Braddock’s Affidavit makes very clear that it was, as Mr Hoffmann protested during submissions, and appropriately so, demonstrating his humanity, a relationship of real importance to him.
The reaction of parties to their separation does not dictate how the relationship has subsisted prior thereto. It may be that one party is at a different point of advance in acceptance of the reality of separation much more than the other.
The duration of the relationship, I am satisfied, supports a finding that the parties have been a couple on a genuine domestic basis, from July 2007 or thereabouts until October/November 2017.
B. Nature and Extent of Time in Residence
There is no dispute whatsoever that these parties have not lived together full time. But again, as the above case law makes abundantly clear, that is not necessary. As I have dealt with in a decision of Van & Nord [2017] FCCA 2727, upheld on Appeal, the relative infrequency of cohabitation, or sharing a common residence, is not fatal to a finding that a de facto relationship has existed. In that case, the parties were involved in an entirely clandestine relationship, an adulterous affair on the part of one party. That relationship is different to this in many respects, including the degree of love, affection and importance attributed and subscribed to the relationship by Mr Hoffmann, again reflective of his decency and humanity. There was also a child born of that relationship.
The relatively limited nature of common residence, in addition to being nonfatal to a finding that a de facto relationship existed, can also be addressed by the context of these parties, as already touched upon. The parties met through common employment. Ms Braddock is clear that, for at least the initial stages of the relationship, the relationship was kept secret. That is explicable, in light of the context given and agreed by the parties, that their work relationship was its genesis, without needing to venture further into the state of the parties’ prior relationships and the impact of this relationship upon those pre-existing relationships.
Each has children from those prior relationships. To the extent that the parties did not immediately introduce the other to their children, I am not concerned that this would count against a finding that the parties were in a committed de facto relationship as a couple living together on a genuine domestic basis. It is explicable on the evidence. The very circumstances described by Mr Hoffmann in submissions must compel such an explanation.
Ms Braddock is clear that as soon as the relationship became public, (paragraph 69), one of them had to leave their then employment. It was Ms Braddock who left. She received a payout, presumably accumulated leave and the like. Ms Braddock was then unemployed for six months or so. There was no dispute between the parties that during that period those funds were consumed. Ms Braddock did not receive any financial assistance directly from Mr Hoffmann and eventually she made application to Centrelink for receipt of benefits, having made that application as a single parent.
I am not concerned that the application made at that point by Ms Braddock as a single parent obviates against a finding that the parties were in a de facto relationship. Mr Hoffmann has raised the issue of the Elias principle, as it is often described. In that regard I refer to my earlier decisions in Benedict & Peake [2013] FCCA 332 and Benedict & Peake [2014] FCCA 642 regarding application of the Elias principle, indeed, concluding that the principle, as it is often described, is inconsistent with High Court authority and thus not good law. The intent of the Elias principle is to act in something of the nature of an estoppel, (although Chisholm J in extracurial writing was clear that such a description is not entirely accurate, and I agree with his Honour), against a party asserting something as a fact contrary to an assertion that they previously held out to an agency for the purpose of obtaining advantage.
The explanation of Ms Braddock, both in her material and during cross-examination, that the relationship was in its early stages and that the parties lived in separate states is accepted. I am not concerned, accordingly that this obviates against the evidence of Ms Braddock being accepted.
The common residence of the parties must also be seen in the context of their agreed facts. They lived in separate states when their relationship commenced and throughout it. They spent time together when they were in the other’s locality. What is important, perhaps, is that they made conscious and deliberate plans, whether connected with employment or otherwise, to be in the other’s locality from time to time so that they could be together.
Ms Braddock gives evidence, annexing a significant schedule from her Virgin Frequent Flyer program, of the flights that she took. Certainly, a number of those flights involved her travelling down and back on the same day and not staying in Melbourne. On other occasions it was conceded by Ms Braddock that she did not stay with Mr Hoffmann at his home when she was in Melbourne, even if overnight. During cross-examination she gave clear explanation of why that was so, particularly in the period when these parties had not yet introduced each other to their children. In the circumstances in which the relationship commenced, entirely explicably so, showing sensitivity towards their children, their needs, their perceptions and understandings. The common residence of the parties, however, has been as abundant as their circumstances permit, living in different states. Perhaps the most important aspect of common residence, however, was prospective.
In relation to the purchase of the property at Property A at paragraphs 27, 71 and 101, Ms Braddock is clear and consistent in asserting that the property at Property A was purchased with the intention of making that property “our family home”. That assertion was also held out by Mr Hoffmann in the Affidavit he had initially filed 28 March 2018 at paragraph 3 describing:
On November 21 2013, the applicant and the respondent jointly purchased the residence at Property A with the intention of both parties eventually moving into the property together.
It could not be asserted that there was an intention, at the time of purchase, November 2013, that the parties would then immediately move into the property.
Mr Hoffmann’s two children were then minors, and he was involved in spending time with them, parenting them and supporting them and encouraging them through, what the evidence refers to clearly as being, their high achievement. Those children are now both adults. To the extent that it is submitted, both through the Affidavit material and then submissions, that renovations to the property after its acquisition did not produce any change to the property so as to accommodate Mr Hoffmann’s children, I am not concerned. As Ms Braddock indicates in her evidence, they are now adults and were very close to being adults at the time of purchase such that there may never have been any intention that they would live in that property, although no doubt they would be welcome visitors.
To the extent that there is suggestion that there was no accommodation available at Property A for Mr Hoffmann, one must acknowledge, of course, that when he stayed at the property, as he did up to and including January 2018, he slept with Ms Braddock in the same room, indeed, the same bed. Accordingly, that accommodation already existed.
There is common residence between these parties. Beyond the Virgin Flights, the itineraries for which are annexed, Ms Braddock also gives evidence that she booked flights through Qantas and Jetstar. The itineraries are not annexed, but I am not satisfied that this obviates against an acceptance of her evidence, on oath, that such flights occurred.
Ms Braddock is challenged as to an assertion that she had spent some part of Christmas with Mr Hoffmann in each year. The parties might have some difference as to how they define Christmas as being the specific day of the birth of Jesus or whether it is a broad range of time from Christmas Eve to some date past Christmas Day itself, what is referred to in Ms Braddock’s evidence as the Christmas period. Certainly, the photographs that are annexed to Ms Braddock’s evidence suggest that, at least for some Christmases, the parties were clearly together, including on not less than one, and possibly more occasions. Ms Braddock’s evidence is that she could clearly and specifically recall one occasion, but it did not obviate against others having occurred and that one or other of the children of Ms Braddock or Mr Hoffmann or both were present.
The nature and extent of common residence must be viewed within the life of these parties. They met each other at a time when they had children, children to whom they have had and, in the case of Ms Braddock continuing on a day-to-day basis, parenting responsibilities. They met with each other when they could. They cohabited when they could at their homes in Melbourne and Sydney respectively, in hotels and Airbnbs. The last aspect of the above is not intended to sound sordid. It is merely what was available when they travelled to different places and when, accepting Ms Braddock’s evidence, children were about who need not be introduced to circumstances which are either none of their concern or which may have been distressing or confusing for them.
C. Whether a sexual relationship exists
Clearly one does. It is one of the facts that is not in dispute.
D. The degree of financial dependence or independence and any arrangements for financial support between the parties
Again, there is very little, if any, factual dispute between the parties. They have not operated joint bank accounts. They have not operated each other’s accounts in their sole names. There is reference to Ms Braddock speaking with representatives from the ANZ Bank at or about the time of purchase of the Property A property, which conversation ultimately resulted in some positive impact in relation to interest rates applicable to loans in Mr Hoffmann’s name, also with the same bank, and connected in some way after the purchase of the Property A property. However, that is not a significant intermingling of financial affairs between the parties. There is no suggestion that the parties financially support each other or have supported each other in the past.
The parties have contributed financially to each other, however, in a number of ways. It is suggested that one or other of the parties – and Ms Braddock’s evidence is clear that she certainly has done so – have provided funds to facilitate or assist in the travel of the other so that they could spend time together briefly or otherwise. There is a joint commitment to holidays. Both parties agreed that they jointly met those expenses when they went away together, including occasions when one or other of the parties’ children would attend. There is the very significant financial intermingling represented by the purchase of the property at Property A. As is submitted by Counsel for Ms Braddock, the purchase of that property could not be seen – and I accepted the submission that it is so – as being merely an investment. There are better investments to make, quite frankly, than to acquire a minority interest in a parcel of real estate in a state in which one does not live. The 20 per cent interest held by Mr Hoffmann in the Property A property is a significant financial intermingling with Ms Braddock and vice versa.
Certainly, the point is made by Mr Hoffmann that the parties purchased the property as tenants in common rather than joint tenants, and that this should be seen as being something of a lesser commitment by the parties to their relationship with each other. In that regard, reference is made to a letter of advice, if it might be so described, without intending criticism or offence to its author, of the solicitor or conveyancer who acted on behalf of the parties jointly when they purchased the Property A property. In relation to the different styles of holding title, the following is opined:
Could you also advise how you would both like to own the property, that is, as joint tenants or as tenants in common. Many couples choose to buy as joint tenants which means they own the whole property jointly, and if one person dies, the other is immediately entitled to the whole property, regardless of what any will might say. Business partners or people not closely related usually choose to buy as tenants in common which means that they each own a share in the property. That share can then be passed on or sold to anyone and can be left in a will.
The effect of ownership is quite accurate. However, the broad and unsupported description of how “most couples” choose to buy their property, in contradistinction to business partners or people not closely related, is not necessarily entirely accurate. Again, it is to be remembered that these adult parties have not entered into a relationship, however it is described, with each other as the first relationship in their life. They have each had relationships previously as a result of which they have children. The parties have consciously made a decision to own their property as tenants in common.
However, the evidence does not go so far as to suggest that they had done that for any purpose in particular. I do not accept that the broad and general description provided in the above correspondence, page 17, to Mr Hoffmann’s Affidavit can be taken as authoritative proof that the parties consciously decided to purchase the property as tenants in common in unequal shares because they were not a couple. Indeed, I am satisfied that it is entirely possible that they did so because they were a couple with children of previous relationships. The parties had clearly discussed what would occur with their property in the event of their respective demises. One of the documents annexed to Ms Braddock’s material is correspondence referring to assistance provided to her by Mr Hoffmann in drafting a will for her prior to departing on a cruise with her children, (page 89 of the Affidavit).
One would think that these parties with those considerations, children of a prior relationship and their thoughts of how they might assist them through their will upon their demise, would have been relevant. Similarly, I am not concerned that the parties, having undertaken travel separately from each other, contraindicates a finding that the parties were in a de facto relationship with each other. What it suggests is that they had their own lives prior to meeting each other, including with their children and that this continued afterwards.
One particular aspect of Ms Braddock’s evidence, which arose during cross-examination and which I accept as frank and candid, is that on one occasion at least she was booked to travel with Mr Hoffmann overseas, each without their children, but that as a consequence of one of their several falling-outs the arrangements were cancelled and she did not end up going. That does not mean that the plan was not made, and even if it had not been made, the parties travelling separately is not conclusive of an absence of commitment or a genuine domestic relationship.
Again, as Cronin J opined in Vaughan & Bele, it is the parties who define the nature of their relationship. It is not to be judged by some arbitrary standard of what a relationship looks like between a de facto couple. Each will vary depending upon its facts and circumstances. I am satisfied that the degree of financial dependence demonstrated by the parties’ joint enterprise in purchasing a property, which I accept, on their mutual evidence, they intended to be their joint home at some future date, is significant and supportive of a finding that a de facto relationship existed.
E. Ownership, use and acquisition of property
That is largely addressed above particularly with respect to the Property A property. The fact that the parties have otherwise kept their finances apart is not an issue of concern. Each of the parties has, in this case, filed a statement of financial circumstances, whilst neither has specifically sought to rely upon those documents as relevant evidence for the determination of the section 90RD issue, appropriately so. Any cursory examination of those documents makes quite clear that the parties are each able to earn significant income. Certainly, Mr Hoffmann’s income has reduced significantly from the time that these parties separated, having gone from a much better paid job to now working for Employer. That is not a criticism of either his employment or his employer; merely a clear indicator of reduction in his earnings.
Those employment arrangements also have some relevance in relation to factors D above and E. The parties are both clear and agreed that their relationship proceeded on the basis that their lives were predominantly in Melbourne and Sydney respectively, for the purpose of caring for their children, if nothing else, let alone their employment. It is clear from Ms Braddock’s material that Mr Hoffmann had, on at least one occasion, although her sworn evidence is several more occasions, made applications for employment in Sydney, particularly in the latter parts of the relationship between them. That action, on his part, might suggest that upon his children having reached their majority, one of them, on Ms Braddock’s evidence, then living overseas, that he felt the ability to move from Melbourne and, indeed, potentially act upon the intention of the parties, jointly expressed through their evidence, to live together in the Property A property.
Whilst the parties have kept their finances largely separate, the intermingling for the purpose of purchase of the Property A property, for the purpose of it being their family home, satisfies me that the parties did live together as a couple on a genuine domestic basis, having engaged in that transaction for the very dominant and stated purpose, as they have each led in their evidence, to eventually use it as their joint home.
F. The degree of mutual commitment to a shared life
The above evidence makes clear that these parties did much together, not everything. They have children, and they are important commitments which the parties are to be commended for prioritising over their own satisfaction of life, pursuing adult relationships upon the termination of the earlier relationships. They have parented their children, and when they have been able, when they have not had such commitments, they have spent time together, including making specific arrangements to do so outside of work compulsion.
The degree of mutual commitment is also demonstrated by:
a)The parties’ engagement, even though that marriage did not subsequently transpire;
b)The parties’ joint holidays and engagement, including with their respective children or numbers of them from time to time;
c)The Facebook postings already referred to.
This factor supports the proposition urged by the Respondent that a finding would be made to as to a de facto relationship.
G. Whether the relationship is registered under a state or territory law
It is not.
H. Care and support of their children
There are no children of this relationship. Each of the parties has, for a significant portion of their relationship, kept their parenting commitments separate from their relationship with each other. But not entirely. In more recent times, perhaps there is a suggestion of a greater commitment to the relationship, particularly after the purchase of the Property A property in 2013, or reflective of the children’s ages increasing and thus their cognizance and ability to accept and understand their parents moving on with adult relationships, their children have become more involved.
Ms Braddock gives evidence that, albeit on limited occasions, she has travelled to Melbourne specifically to spend time with Mr Hoffmann, but also to then engage in the activities of his children. The parties’ children or numbers of them have attended various events and occasions, certainly since the purchase of the Property A property, and on occasions when the children have been in Ms Braddock’s care they have been present when both parties have been present.
I. The reputation and public aspects of the relationship
As is made very clear by Mr Hoffmann’s submission, the relationship commenced in a clandestine fashion, a workplace relationship which then grew and developed to the point of engagement. Certainly, it is clear that eventually the relationship was made known to the public, advertised to some extent through Facebook, irrespective of privacy settings applied thereto, and consistent with Ms Braddock’s evidence as she describes all of her friends and associates being aware of the relationship.
The relationship has been held out by the parties in one form or another, as the evidence demonstrates, as being the parties together in a relationship as a couple. I am not concerned that there was an absence of evidence of significant performance of domestic duties by one party for the other. I accept Mr Hoffmann’s evidence that he had an accommodation arrangement with a neighbour where, in return for services he provided in lawn care and maintenance, that meals were provided for him and that he employed a cleaner to attend to the cleaning of his property. What is intended by a genuine domestic basis and the provision of such services by one to the other is not that the parties have undertaken housework each for the other. That may impact assessment of contributions if jurisdiction is established, but it is not a matter of showing that the parties have lived together in that form of domestic basis.
The genuine domestic basis that is referred to and spoken to by the case law referred to above is the parties genuinely considering themselves to be a couple in a committed relationship in which they commit themselves to that relationship with each other and provide mutual commitment to a shared life. Each of the other factors set out in subsection (2), without any specific weight or dispositive weight being applied to one or other factor, but taken collectively, support a finding of a relationship. It is not necessary to establish them all. It is a matter of the facts and circumstances, all of the facts and circumstances, of an individual case.
By reference to the above I am satisfied that a de facto relationship did exist between the parties commencing in or about …2007 and concluding no later than October 2017, although possibly November 2017, as is specifically recalled by Mr Hoffmann.
I certify that the preceding one hundred and fourteen (114) paragraphs are a true copy of the reasons for judgment of Judge Harman
Date: 25 January 2019
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