Houli and Laidler
[2012] FMCAfam 636
•28 June 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HOULI & LAIDLER | [2012] FMCAfam 636 |
| FAMILY LAW – Property – De Facto relationship – jurisdiction – characterisation of the relationship – respondent denies de facto relationship – inter alia – on the basis that the parties maintained separate residences. |
| Family Law Act 1975, ss.4AA, 90RD(1), 90SB, 90SM Marriage Act 1961 |
| FO v HAF [2006] QCA 555 Baker & Landon [2010] FMCAfam 280 |
| Applicant: | MS HOULI |
| Respondent: | MR LAIDLER |
| File Number: | LEC 493 of 2010 |
| Judgment of: | Demack FM |
| Hearing dates: | 11 & 17 February 2011 |
| Date of Last Submission: | 17 February 2011 |
| Delivered at: | Lismore |
| Delivered on: | 28 June 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Gordon |
| Solicitors for the Applicant: | BL Crane & Associates |
| Counsel for the Respondent: | Mr Priestley |
| Solicitors for the Respondent: | Family Law Solutions |
ORDERS
That it is declared that pursuant to s.90RD (1) of the Family Law Act 1975 that a de facto relationship existed between the Applicant and the Respondent in the State of New South Wales between 2001 and 2009.
That this matter be adjourned for directions to 9.30am on 13 August 2012 in the Federal Magistrates Court of Australia at Lismore.
IT IS NOTED that publication of this judgment under the pseudonym Houli & Laidler is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT LISMORE |
LEC 493 of 2010
| MS HOULI |
Applicant
And
| MR LAIDLER |
Respondent
REASONS FOR JUDGMENT
Between 2001 and mid 2009, Ms Houli and Mr Laidler were in a relationship. Ms Houli says it was a de facto relationship as defined by the Family Law Act 1975 (“the Act”). Mr Laidler says it was not.
The application and the response
The initiating application filed by Ms Houli on 7 October 2010 sought interim and final orders with respect to property. Relevantly, she sought a declaration pursuant to s.90RD(1) of the Act that a de facto relationship existed between her and Mr Laidler between mid to late 2001 until 27 July 2009. She sought consequential orders adjusting their property interests.
Mr Laidler responded on 9 December 2019 seeking a declaration, on both an interim and final basis, under the same section that a de facto relationship never existed and that the initiating application otherwise be dismissed and an order for costs.
This matter was listed as a discrete issue for determination.
It must be noted that the only issue which was argued at this time was whether a de facto relationship existed. Issues such as length of the relationship or whether substantial contributions were made which might in other circumstances enliven the courts jurisdiction (per s.90SB (a) and (c)) were not argued before me.
The evidence and credibility of the parties
The Ms Houli relied upon affidavits and financial statement by herself, friends, Ms H, Mr B, Ms F and Ms S and the former boyfriend of her daughter [D], Mr W. Mr B was not required for cross examination; the others were.
The Mr Laidler relied upon affidavits and financial statement by himself and a friend and colleague Mr R. Both were required for cross-examination.
Both parties impressed me as honest and thoughtful witnesses. They are clearly both intelligent and good people. That they now have a conflict between them as to how their relationship is to be categorised in retrospect is not a reflection on their honesty and I do not consider that either of them is to be preferred when it comes to credit issues. In saying that, I am mindful that from time to time under cross-examination, Ms Houli appeared affronted by the questions she was asked. Ms Houli impresses as a woman who has put much thought and feeling into contemplating how her relationship with Mr Laidler faltered and ended. She appeared to find many questions were unable to be answered as simply as counsel considered possible. I do not consider that her answers are any the less reliable as a result.
Background facts
Ms Houli was born in 1956 and has six children to an earlier marriage: [A], born 1982, [B], born 1984, [C], born 1986, [D], born 1989 and twins [E] and [F], born 1991. She describes without particulars that she was subjected to violence in her earlier marriage by her husband. She lived in [G] in her own home[1], with her children, who spent time with their father and she worked casually as a [omitted]. After moving from [G], Ms Houli no longer [occupation omitted]. After selling her house, she invested money in the stock exchange. She later attempted to establish a business by developing and seeking to market an item of her own design being [omitted]. This business endeavour has been more difficult that she had originally hoped.
[1] With a modest mortgage.
Mr Laidler was born in 1950. An earlier marriage had ended in 1999. He has two children to that earlier marriage: [X], born circa 1987 and [Y], born circa 1989, and an older step-son, [Z], born circa 1981. The children lived with their mother and spent time with him, primarily, it seems on holidays. For a time, the children and their mother lived in Canada. Mr Laidler lived in an apartment in [L] and worked as a [occupation omitted] at [omitted].
The parties met in 2000 on the internet and met in person in December 2000. The relationship (however it is to be described) ended in July 2009. These proceedings were commenced by Ms Houli on 7 October 2010.
The law
This decision is about the discrete issue as to whether the court has jurisdiction to hear an application for adjustment of de facto property interests. There are two parts to the issue as to whether the court has jurisdiction: whether there was a de facto relationship and whether it was of the requisite length or quality.
The first argument before me is whether the relationship previously shared by the applicant and the respondent was a de facto relationship for purposes of the attracting the jurisdiction of Part VIIIAB of the Family Law Act 1975 (“the Act”). The starting point is the definition of de facto relationships contained in section 4AA:
4AA De facto relationships
Meaning of de facto relationship
(1) A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b) the persons are not related by family (see subsection (6)); and
(c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has effect subject to subsection (5).
Working out if persons have a relationship as a couple
(2) Those circumstances may include any or all of the following:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h) the care and support of children;
(i) the reputation and public aspects of the relationship.
(3) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4) A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
(5) For the purposes of this Act:
(a) a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and
(b) a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.
When 2 persons are related by family
(6) For the purposes of subsection (1), 2 persons are related by family if:
(a) one is the child (including an adopted child) of the other; or
(b) one is another descendant of the other (even if the relationship between them is traced through an adoptive parent); or
(c) they have a parent in common (who may be an adoptive parent of either or both of them).
For this purpose, disregard whether an adoption is declared void or has ceased to have effect.
References in the definition to situations where parties are related by marriage are not applicable to these parties.
The Mr Laidler’s argument before me, in its simplest form, is that the parties had a relationship which was something less than a de facto relationship and that a possible progression of their relationship would have been for it to become a de facto relationship. It is submitted that this would have been evidenced, for example, by the parties moving in together. The parties’ relationship did not reach that stage or point, and the relationship that they had was that of a ‘couple’ and not a ‘de facto relationship’.
No case completely on point was able to be located: that is, that a case where the parties did not have a common residence at some time in an application for adjustment of de facto property under the Family Law Act 1975. There are cases which are of interest in succession law and in de facto property matters when the states were exercising their jurisdictions.
The Act provides the basis for determining whether there was a de facto relationship. Using the factors set out in subsection (2), I must determine whether “having regard to all the circumstances of their relationship, [the parties had] a relationship as a couple living together on a genuine domestic basis.”
It is submitted on behalf of the respondent that the words used in ss.4AA(1) are a mandatory requirement and that the words used in ss.4AA(2) are guiding factors. It seems to me that the legislation is plain in its wording where the matters in subs.(1) are those that need to be satisfied and when considering the matters in s.4AA(1)(c), the circumstances which may be considered when “working out if persons have a relationship as a couple” are those set out in subs.(2). It is in considering those s.4AA(2) factors that I will be able to decide whether s.4AA(1)(c) has been established.
The list then set out in subs.(2) is not intended to be exhaustive or proscriptive. It is not intended that I need to be satisfied positively of there being indicia under each factor before I may make a positive finding. De facto relationships by their very nature encourage the notion of a list of factors to be examined in establishing their existence or otherwise in any particular relationship. Marriages, by their very nature, and by very virtue of the requirements of the Marriage Act 1961, are able to be established through more straight forward means.
I do not consider that living together as a couple necessarily means that parties have to share a common residence on a fulltime basis. Living together may be able to occur even with the parties being apart for long or short periods of time. The Queensland Court of Appeal considered this issue[2] in FO v HAF [2006] QCA 555:
25. In PY v CY,[3] this Court confirmed that continuing cohabitation in a common residence is not necessary to establish the continuation of a "de facto relationship" where the parties have lived together as a couple, 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". It must be shown that "the parties have so merged their lives … that they [were], for all practical purposes, living together as a married couple".[4] The fact that the parties have never lived together in a common abode must be acknowledged to be a strong 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 burden of maintaining a household.
26. The circumstances of human affairs are so various that the courts should refrain from attempts to define more precisely than the legislature the kind of relationship regulated by Pt 19 of the PLA. Nevertheless, as this Court said in KQ v HAE,[5] it will be an exceptional case where two people who have not lived in a common residence, and who have not made actual provision for their mutual support, can be said to have been "living together as a couple on a genuine domestic basis". A case is not rendered exceptional in this context merely because the parties intend, eventually, to live together as a couple. That is simply a case where an existing courtship has not matured into the kind of commitment in which the parties have so merged their lives that they were, for all practical purposes, a married couple. Just as people who are affianced cannot be confused with people who are married, so people who intend to live together as a couple should not be confused with people who do live together as a couple.
[2] In de facto property adjustment proceedings under the Queensland Property Law Act 1974.
[3] [2005] QCA 247 at [7].
[4] Thompson v Department of Social Welfare [1994] 2 NZLR 369 at 374; Mao v Peddley [2001] NSWSC 254 at [54] – [57]; [2002] D.F.C. 95-249 at 77,522; KQ v HAE [2006] QCA 489 at [16] – [20].
[5] [2006] QCA 489 at [20].
It is not just in the Family Law Act that a list of factors applying to de facto relationships exists: social security law, succession and family provision legislation, migration law, for example, all refer to various factors.
In Baker & Landon [2010] FMCAfam 280, Riethmuller FM considered the meaning of the term ‘de facto partner’ within an application for a declaration as to the paternity of a child who had been conceived through assisted reproductive technology in determining whether the respondent was a ‘parent’ to the child.
In assessing the degree of mutual commitment to a shared life it is not essential that there be entire harmony, entire fidelity, entire satisfaction with the relationship or entire commitment; the degree of commitment may be high even though there are qualifications. Dissatisfactions, infidelities, expressed complaints and grievances and less than entire commitment are often found in personal relationships, including marriages, and are not inconsistent with mutual commitment to a shared life. The significance of qualifications of these kinds appears from passages in Basten JA’s leading judgment in Robson v Quijarro [2009]NSWCA 365 at [14]-[16], and from passages which his Honour cited from Bar-Mordecai v Hillston [2004] NSWCA 65 at [120]-[124]. [6]
90RDDeclarations about existence of de facto relationships
(1) If:
(a) an application is made for an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL; and
(b) a claim is made, in support of the application, that a de facto relationship existed between the applicant and another person;
[6] Per Bryson AJ, New South Wales Supreme Court, in Dion v Rieser [2010] NSWSC 50, paragraph 162 (f). This case examined whether the plaintiff was entitled to Letters of Administration in common form of the estate of the deceased who she claimed was her de facto spouse. The definition of de facto relationships for the purpose of this matter came from s.4 of the Property (Relationships) Act 1984 (New South Wales).
the court may, for the purposes of those proceedings (the primary proceedings), declare that a de facto relationship existed, or never existed, between those 2 persons.
(2) A declaration under subsection (1) of the existence of a de facto relationship may also declare any or all of the following:
(a) the period, or periods, of the de facto relationship for the purposes of paragraph 90SB(a);
(b) whether there is a child of the de facto relationship;
(c) whether one of the parties to the de facto relationship made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c);
(d) when the de facto relationship ended;
(e) where each of the parties to the de facto relationship was ordinarily resident during the de facto relationship.
In this case, there was no child of the relationship and to that end, the de facto relationship had to exist for no less than 2 years or substantial contributions had to be made. It is clear that a de facto relationship of a shorter period than 2 years can still attract the Court’s jurisdiction by dint of a contribution of the kind described in s.90SM(4)(a), (b), or (c). In saying that, though, it is clear that the relationship in which the substantial contribution was made, must be a de facto relationship for jurisdiction to be attracted.
Having regard to the circumstances of the relationship
(a) the duration of the relationship
The parties met each other over the internet in 2000 and met in person in December 2000. At that time, the applicant was living in [G] and the respondent was living in [L]. The two towns are about 150 kilometres apart. During 2001, the parties commenced spending weekend time together on a regular basis, by either of them travelling to spend time with the other depending upon their availability and their parenting commitments. Ms Houli refers[7] to this period as a time when she and the respondent were:
[7] Paragraph 12 of the applicant’s affidavit filed 7 October 2010.
Involved in forming our de facto relationship.
Ms Houli moved (with a number of her children) from [G] into the house at Property A in April 2002.
The relationship ended in May or June 2009.
(b) the nature and extent of their common residence
Throughout their relationship, Mr Laidler continued to maintain his residence in an apartment at [L] in a complex called [Q]. This apartment was his principal place of residence insofar as his taxation affairs are concerned.
At the commencement of their relationship Ms Houli was living in [G] in a home that she owned encumbered by a modest mortgage. As the relationship progressed Ms Houli determined that she and some or all of her children would leave [G] and would move to live closer to
Mr Laidler. I am satisfied that Ms Houli formed that view based on her understanding of the level of commitment in the relationship with
Mr Laidler and a desire to deepen their relationship by removing the distance to be travelled. Ms Houli sold her house in around August 2002 with net sale proceeds being in the order of $147,000. Prior to that time she had already started looking for houses to live in, in the [omitted] areas. She and Mr Laidler jointly attended an auction at a property at [omitted] and were unsuccessful in their bidding, further an offer was made at on a house at [omitted] which was not accepted.
It appears that while Ms Houli considered her moving to live closer to Mr Laidler was in furtherance of their relationship simultaneously and apparently unknown to her Mr Laidler was wanting to advance the relationship without creating a relationship with the hallmarks of a de facto relationship. He says in his affidavit of 9 December 2010 at paragraph 19(c) that he had fears regarding a de facto relationship developing. Having recently concluded such a relationship with significant financial cost, and maintaining a continuing responsibility for child support, I was extremely keen to avoid being in a similar situation again.
Whilst Ms Houli was looking for real property to either purchase or live in Mr Laidler was accompanying her, Mr Laidler then developed a view that he would be interested in an investment property in his own name for his own taxation purposes via negative gearing. He considered that if he purchased an investment property Ms Houli and her children could be the tenants, he saw the benefit of that outcome of him having the negative gearing aspect and Ms Houli being appropriately housed, he also considered that the sale proceeds of
Ms Houli’s house in [G] could be applied by her for different purposes. Ms Houli had expressed an interest in investing in the share market which was something that Mr Laidler had knowledge and experience in himself.
What came to pass was the purchase of the Property A property at [L] into which Ms Houli and her children moved and remained. No lease documents were ever formally entered into and no rent was ever paid on a reliable and predictable basis at a fixed amount. Ms Houli lived in the property as though it was her own there was no need for her to report to Mr Laidler as a tenant might to a landlord about changes that she wanted to have made to the property, rather changes to the property were done by way of discussion and negotiation and a real interest in the view of the other person such as might be done when a property is being renovated between a loving couple. For his taxation purposes
Mr Laidler did demonstrate the property to be an investment property and it was negatively geared. From Ms Houli’s perspective she was living in a home to which she was financially contributing by way of renovations and improvements rather than the periodic reliable payment of rent.
Prior to even moving into the house improvements were effected the house was cleaned, carpet was replaced by tiles and a new oven and cook top were installed. During the relationship extensive renovations were undertaken, a separate self contained two bedroom plus studio was built as an extension. The extension included a widening of veranda area, along with a purpose built room for Ms Houli’s ceramic work with extra drainage installed for hoses out purposes and fire retardant walls due to the kilns. Ms Houli lived on site during the renovation work and was the first port of call for the builders. She was responsible for determining fixtures and fittings; cupboard handles, tap fittings, lights, splash backs, window placements, colour schemes, tiles, bench tops and the like. Throughout that process and whilst living in that house Ms Houli paid to Mr Laidler money in the total order of over $90,000. Mr Laidler in his bookwork attributed that as rent,
Ms Houli considered that she was contributing effectively to the mortgage and generally to the improvements. She was not troubled by Mr Laidler calling it rent for his taxation purposes, as she acknowledged and respected his business acumen.
While Ms Houli lived in the house at Property A, Mr Laidler regularly stayed at the house with her, his apartment at [Q] was where he otherwise stayed. Ms Houli rarely stayed at [Q] with Mr Laidler, her children lived at Property A and that is where she remained.
Mr Laidler’s children lived with their mother and would spend time with Mr Laidler during school holidays and otherwise from time to time. When they were with him on school holidays that would sometimes be at [Q] when that occurred Ms Houli tended to not stay at [Q] but rather may visit from time to time whilst his children were visiting.
There is no complete and clear pattern of which nights of the week
Mr Laidler would stay at Property A or stay at [Q]. Mr Laidler states in his affidavit of 9 December 2010 at paragraph 20(ii) that his time at Property A varied between 1 and 5 nights per week (average 3 to 4, with [Ms Houli] occasionally spending time at my residence at the [Q]). He goes on to state that to be the case until 2007 after which arising from various factors, their time between each other reduced. Given that Ms Houli asserts a de facto relationship and Mr Laidler denies it, I accept his evidence that he averaged three to four nights per week at Property A.
Mr Laidler seems to have maintained the bulk of his belongings at [Q]. It seems to me though that Ms Houli considered her belongings in Property A to be belongings which she shared with Mr Laidler and she did not make such a distinction as to her belongings and his belongings. There is certainly no suggestion that Mr Laidler had to always pack a bag of belongings with him when he travelled to stay at Property A. It would seem that he had sufficient of his personal possessions at Property A to suffice.
Notwithstanding the fact that Mr Laidler maintained a separate residence it would seem clear that he shared the residence at Property A with Ms Houli for half the time at least from 2002 through to at least 2007.
(c) whether a sexual relationship exists
It is common ground that a sexual relationship existed and that it was an exclusive relationship.
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them
Mr Laidler and Ms Houli operated separated bank accounts; the only explicit intermingling was Ms Houli’s capacity to accrue some benefit from Mr Laidler’s frequent flyer points.
Having said that, Ms Houli was living in Mr Laidler’s house: as she understood, it a house that they were extending and renovating for their mutual comfort with a view to full time co habitation when the children had grown or left home. Ms Houli has contributed substantially to the improvements of Property A in a way that is clearly able to be distinguished from a standard tenant/landlord agreement. Not only did she work to effect and have the renovations completed but she also worked to beautify the gardens and property generally.
Ms Houli did not contribute to the acquisition of the [Q] property however she did participate in some renovation work at the [Q]. The parties do not agree as to whether that was a desired outcome by
Mr Laidler but it is clear that Ms Houli did attend to some painting and decorating at the [Q], which she considered to be done for the purposes of improving the [Q].
It is a interesting factor that Mr Laidler’s case includes that in him purchasing the Property A property for the benefit of Ms Houli being provided with a home in which she could live, that she would then have available for her other use her capital for investing in the share market. Clearly a financial relationship between the parties included the benefit to Ms Houli being provided by Mr Laidler in freeing up her capital for other purposes. The stock market investment was something which was within Mr Laidler’s knowledge and skill base for sharing with Ms Houli. Ms Houli wanted Mr Laidler’s help and assistance with education and then putting the education into practice. It is certainly the case that the share portfolio used by Ms Houli was in her name. I accept though Ms Houli’s view that she would not have taken the risk of investing in the share market without the trust in
Mr Laidler’s knowledge base and her faith that he would be a willing assistant and teacher.
The parties regularly shared meals with each other and had holidays together. During those times they each contributed financially within their capacity and their relationship.
Ms Houli was financially dependent upon Mr Laidler in so far as she was living in his property and was not paying rent in a reliable tenant/landlord arrangement. Further their financial relationship included her investing her own time and energy in the improvement of the property at Property A and to a lesser extent at the [Q].
(e) the ownership, use and acquisition of their property
At the commencement of their relationship, the applicant owned her home in [G] which was encumbered to around $35,000. She was working locally and living in her home, which she had renovated and furnished to her liking. When the house was later sold in August 2002, she netted just over $147,000. The options for how that money might best be applied by Ms Houli were discussed between the parties and it was later used for the purchase of shares in her name. The knowledge base for trading in shares was more greatly held by Mr Laidler, although Ms Houli was an interested and learning participant in the buying and selling on the share market.
(f) the degree of mutual commitment to a shared life
It seems to me that this is one factor where the evidence is able to be muddied through hindsight. Mr Laidler’s position is stated to be that he had no present or future intention to develop the relationship beyond how he saw it at the time. Ms Houli’s position is that both parties were committed to the development and enhancement of all aspects of the relationship. Their respective positions on this issue reflect their positions overall – that is Ms Houli’s position supports the view that their relationship was a de facto relationship and Mr Laidler’s position supports the view that the relationship was something less than a de facto relationship.
(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship
The relationship had not been registered under any prescribed law.
(h) the care and support of children
Ms Houli entered the relationship with her children from her former relationship. She was clear throughout that her children were the responsibility of her and her former partner and she did not seek to impose the responsibility of parenthood on Mr Laidler. Ms Houli was mindful that her household was sometimes a noisy and robust environment because of the presence of her children and she was mindful not to impose any unwelcome burden on Mr Laidler.
Mr Laidler’s children, including step son, were clearly understood to be his responsibility when they were in his care. He did not seek to integrate Ms Houli into his time with his children to any great extent. The parties do not have any children together.
Nonetheless Mr Laidler was at Property A as I have earlier found for about half of the week, each and every week between 2002 and 2007 and to that extent was very much a part of the household in which
Ms Houli’s children lived. He was not a distant member of the household but was rather fully engaged in all of the household activities as one would expect from the children’s mother’s partner.
the reputation and public aspects of the relationship
Mr Laidler’s sole witness on this aspect of his case was a friend and colleague from [workplace omitted] Mr R. Mr R knew Ms Houli to be Mr Laidler’s partner or girlfriend between 2003 and 2009 and he was aware that they lived separately. Ms Houli sometimes attended social occasions with Mr Laidler at which Mr R was present and sometimes she did not. Mr Laidler spoke with Mr R prior to the purchase of the Property A property along the lines that it was an investment property and that [Ms Houli] was going to live there as a tenant.
Ms Houli produced a number of witnesses with respect to this issue. Ms H was a friend and book club group member. She saw them together regularly at social gatherings. She was aware that they did not live together on a full time basis. Mr B was a friend of Ms Houli’s who together with his wife socialised with them as a couple. Ms S was a friend of Ms Houli’s who then became a friend of Mr Laidler’s. During their relationship they would socialise together. After the parties separated on a final basis, Mr Laidler stated to Ms S words to the effect of I know [Ms Houli] has equity in Property A and I will not let her down in that respect and at later time he stated words to the effect of [Ms Houli] has a 40% equitable interest referring to the property at Property A. Ms S also reported that in late 2007/early 2008, Mr Laidler advised her that the property at the [Q] would soon be available to be rented out during a conversation with Ms S about her own seeking of rental accommodation.
Ms Houli also relied upon an affidavit by Mr W who is the partner of one of her daughters. Mr W would often stay overnight at Property A and was aware that Mr Laidler was a frequent visitor to the house. He observed them do shopping together and presented as a couple. He remembered in 2007 a whole month when Mr Laidler was present at Property A every day. Mr W particularly remembered that as he had been kicked out of his own home because he had obtained a tattoo.
Ms Houli also relied upon Ms F who was a long term friend of
Ms Houli’s. She was aware of the relationship with Mr Laidler and knew that Ms Houli was moving from [G] to where Mr Laidler lived. She was aware that they maintained separate residences but that
Mr Laidler was a frequent visitor at Property A.
It is clear that the parties presented themselves as a couple and that those who knew them well, knew that Mr Laidler had maintained his residence at the [Q] and that Property A is where they predominantly were as a couple when at home.
Whether they lived together on a genuine domestic basis
It is certainly the case that Mr Laidler retained his separated residence at the [Q]. I accept though that from 2002 through to at least 2007 he lived half of the time at Property A. I do not consider any lessening of time between 2007 and final separation to be indicative of an ending of their living together. The fact that all of his personal belongings were not at Property A does not mean that when he was there, he was not living there. I accept that from the perspective of outsiders, the parties were a couple in a relationship. I accept that they maintained separate bank accounts but that there was a significant degree of financial relationship between them. That financial relationship predominately arose by Mr Laidler purchasing a house for Ms Houli and her children to live in and then allowing Ms Houli to treat that house in a manner which exceeded the rights of any usual tenant and the responsibilities of any usual landlord, including the landlord spending a significant period of time there. I accept that the parties did not parent the children of the other party nor did they allow the step parent/child relationship to develop in any significant sense. I accept that
Mr Laidler had reservations of a serious nature about entering into a de facto relationship. I accept that Ms Houli was keen for the relationship to move into one which she understood would plainly be observed by others to be a de facto relationship. Notwithstanding Mr Laidler’s intentions to not have a de facto relationship, when I weigh up all of the circumstances in this case I am satisfied that it had sufficient hallmarks of a de facto relationship for me to declare that the parties were living together on a genuine domestic basis.
I therefore consider that I have the requisite jurisdiction for the taking of the matter. The parties will now need to attend to some form of alternate dispute resolution. I will list the matter for further directions in a Lismore duty list.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Demack FM
Date: 28 June 2012
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