Jensen and Taylor
[2011] FMCAfam 1251
•25 November 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JENSEN & TAYLOR | [2011] FMCAfam 1251 |
| FAMILY LAW – Whether de facto relationship – whether the parties had so merged their lives that they were, for all practical purposes “living together” as a couple on a genuine domestic basis – expectations that did not eventuate. |
| Family Law Act 1975, ss.4AA, 90SB, 90SE, 90SG, 90SM, 90RB, 90RD(1) |
| Baker & Landon [2010] FMCAfam 280 Hayes v Marquis (2008) NSWCA 10 Jonah & White [2011] FamCA 221 KQ v HAE [2006] QCA 489; [2007] 2 Qd R 32 Moby & Schulter (2010) FLC 93-447 Vaughan v Hoskovich [2010] NSWSC 706 |
| Applicant: | MS JENSEN |
| Respondent: | MR TAYLOR |
| File Number: | MLC 4729 of 2011 |
| Judgment of: | F. Turner FM |
| Hearing dates: | 11 & 14 November 2011 |
| Date of Last Submission: | 14 November 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 25 November 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Portelli |
| Solicitors for the Applicant: | Peter Baker & Associates |
| Solicitors for the Respondent: | Coulter Roache |
THE COURT DECLARES THAT:
A de facto relationship never existed between Ms Jensen and
Mr Taylor.
THE COURT ORDERS THAT:
The application for spousal maintenance filed 1 June 2011 is dismissed.
Order 2 of the orders made on 6 July 2011 adjourning the matter for final hearing on 3 February 2012 is revoked.
All extant applications are dismissed and the matter is removed from the list of pending cases.
IT IS NOTED that publication of this judgment under the pseudonym Jensen & Taylor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 4729 of 2011
| MS JENSEN |
Applicant
And
| MR TAYLOR |
Respondent
REASONS FOR JUDGMENT
The parties in this matter were teenage sweethearts. A child [X] was born [in] 1994. At first the applicant denied that the respondent was the father, but later said that he is the father (Transcript “T” 11/11/2011 p.40, l.18 and p.41, l.8).
The parties went their own ways in September 1993 (T 11/11/2011 p.43, l.20). The applicant remained in Bendigo, married, and had children. She was divorced in 2006. The respondent moved to the Geelong area, married, and had children.
The parties met again in October 2006. Their romance flourished again and an intimate relationship began in December 2006 (T 11/11/2011 p.3, l.10).
The respondent visited and slept with the applicant in Bendigo regularly on Friday nights; the visits were not every Friday night (T 14/11/2011 p.3, l.18), and sometimes there would be a gap of two weeks between visits. Occasionally the respondent stayed for two nights, and once he stayed for three nights (T 14/11/2011 p.4, l.2). They never ‘moved in’ together on a more regular basis. When visiting, the respondent would take a bottle of wine, and sometimes buy pizzas or ice-creams. The applicant said he would bring chocolates and purchase groceries.
The applicant visited her relations and the respondent in Geelong and surrounding areas, staying with both on occasions. The parties stayed in Daylesford together twice (T 14/11/2011 p.15, l.1). The respondent took the applicant to Thailand on four occasions (T 11/11/2011 p.3). He took her on two trips to Perth and for a holiday in Europe for two and a half weeks, paying all the costs of these trips. The applicant alleged at first that she was introduced by the respondent to his business associates as his “partner”. He denies that, and says that he introduced her by name only. The applicant admits that she was introduced by name only (T 14/11/2011 p.29, l.34).
While in Berlin, the applicant became agitated because she believed that the respondent was going to propose marriage to her, or a permanent relationship. That did not happen, and an argument occurred.
The applicant became pregnant again which led to the respondent distancing himself from her, although he paid $4,000.00 (T 11/11/2011 p.3), to install air-conditioning in her home in Bendigo, as it was hot and she was pregnant. The respondent gave evidence that he had to consider whether the applicant being pregnant again “should be a reason to commit to a relationship” (T 14/11/2011 p.16, l.12).
In July 2009 the respondent told the applicant that he did not want a permanent relationship, and the applicant accepts that was said (T 11/11/2011 p.34, l.6 and 14/11/2011 p.9, l.14 and 40).
The parties again went their own ways after returning from Europe.
The applicant considered not going ahead with the pregnancy (T 14/11/2011 p.16, l.17). The respondent arranged for his mother to telephone the applicant and tell her that the respondent loved her and wanted her to move to Geelong to live with him.
Following the birth of [Y] [in] 2010, the respondent wanted to be involved in his life, and has been assessed for, and pays child support.
The applicant asserts that the respondent rented a home for them in Geelong, and that she intended to move there with her children to live with him. The respondent disputes that he found a house for both of them in Geelong (T 14/11/2011 p.55, l.9). The applicant’s husband intervened and prevented her from relocating to Geelong with her children. The respondent paid the applicant’s legal cost’s of that case which he states were $1,100.00. The applicant says that the figure was $5,000.00 (T 14/11/2011 p.9, l.16).
The parties never set up house or lived together in Geelong or Bendigo.
The proceedings
The applicant has brought an application for spousal maintenance against the respondent. As the parties are not married the application is made under Part VIIIAB of the Family Law Act 1975 (the “Act”) – “Financial Matters Relating to De Facto Relationships”.
The legislation and relevant decisions
Section 90SB of the Act provides:
When this Division applies--length of relationship etc
A court may make an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL, in relation to a de facto relationship only if the court is satisfied:
a)that the period, or the total of the periods, of the de facto relationship is at least 2 years; or
b)that there is a child of the de facto relationship; or
c)that:
i)(i) the party to the de facto relationship who applies for the order or declaration made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c); and
ii)a failure to make the order or declaration would result in serious injustice to the applicant; or
d)that the relationship is or was registered under a prescribed law of a State or Territory.
Note: For child of a de facto relationship, see section 90RB.
Section 90SE of the Act sets out the powers of the Court in de facto maintenance proceedings. Section 90SE(1) commences by providing:
(1)After the breakdown of a de facto relationship, a court may make such order as it considers proper for the maintenance of one of the parties to the de facto relationship….
Section 90SG relates to urgent maintenance cases for “a party to a de facto relationship….”
Section 90SM relates to alteration of property interest, after the breakdown of a de facto relationship.
The applicant seeks a declaration that the parties were in a de facto relationship. The respondent seeks a declaration that a de facto relationship never existed between them.
Section 90RD(1) of the Act provides:
Declarations 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;
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
Note: For child of a de facto relationship, see section 90RB.
The first issue for determination therefore is whether the parties were in a de facto relationship. That is the issue covered by this decision. The hearing took place on 11 and 14 November 2011. Ms Portelli appeared for the applicant and Mr Hogan appeared for the respondent.
Section 4AA of the Act sets out the meaning of “de facto relationship” as follows:
(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.
By virtue of s.90SB (supra) a court can make an order for spousal maintenance or alteration of property interests only if it is satisfied:
a)that the period, or the total of the periods, of the de facto relationship is at least 2 years; or
b)that there is a child of the de facto relationship; or
c)that:
i)the party to the de facto relationship who applies for the order or declaration made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c); and
ii)a failure to make the order or declaration would result in serious injustice to the applicant; or
d)that the relationship is or was registered under a prescribed law of a State or Territory.
The meaning of “a child of the de facto relationship” is set out in s.90RB as follows:
For the purposes of this Part, a child is a child of a de facto relationship if the child is the child of both of the parties to the de facto relationship.
Mr Hogan referred to the decision in Moby & Schulter (2010) FLC 93-447 where Justice Mushin considered whether the parties there were in a de facto relationship. His Honour considered the definition of a de facto relationship in s.4AA:
“… having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis”.
His Honour stated at [132 et seq]:
“132. Sub-section 4AA(2) of the Act (“the subsection”) contains a number of matters which may be considered in a determination of whether two people are, or have been, in a de facto relationship. It is in the following terms:
4AA(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.
133. The section provides that it is not necessary to make any particular finding with regard to any of the matters listed in the subsection in order to establish that there is, or is not, a de facto relationship between the parties (s-s 4AA(3)). I am entitled (s-s 4AA(4)) —
… 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.
134. It is not necessary for a de facto relationship to be an exclusive relationship. One or both parties may be legally married or in another de facto relationship while being in the de facto relationship which is the subject of the proceedings. Further, the parties to a de facto relationship may be heterosexual or of the same sex. (s-s 4AA(5))
Case law
135. There are a number of appellate and first instance decisions which consider similar legislation in other jurisdictions. I now turn to an examination of the relevant case law.
136. The authorities suggest that it is appropriate to consider the definition as a whole. In Roy v Sturgeon (1986) DFC 95-031 , Powell J considered a similar definition and held (p 75,364):
With respect, it seems to me that to attempt to dissect the phrase “living together as a husband and wife on a bona fide domestic basis” into discrete “elements”, and then to test the facts of a particular case by reference to a set of a priori rules in order to establish whether a particular “element” is, or is not, present, is to ignore the fact that just as human personalities and needs vary markedly, so, too, will the various aspects of their relationship which lead one to hold that a man and woman are living together as husband and wife on a bona fide domestic basis vary from case to case.
137. Likewise, 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”. 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.
142. Riethmuller FM took a similar approach to section 4AA in Baker & Landon [2010] FMCAfam 280, with which I also respectfully agree.”
Mr Hogan then referred to the decision in Jonah & White [2011] FamCA 221where Justice Murphy considered whether the parties there were in a de facto relationship, when:
·They had been in a relationship for seventeen years;
·They lived separately;
·They did not have any property;
·They did not pool resources;
·They only saw each other for a couple of days every two to three weeks; and
·The parties travelled overseas together in what was, at least for the respondent, a trip with business components.
His Honour dismissed the application for a declaration that the relationship between the parties was a de facto relationship as defined in the Act. His Honour referred to the decision in Moby & Schulter together with various decisions in State jurisdictions as to the meaning “living with… on a bona fide domestic basis”. His Honour referred to the decision of Epstein J in Hayes v Marquis (2008) NSWCA 10 at [166] in relation to the NSW Act that:
“‘living together’…. involves assessing the nature and extent of the claimed common residence” [see s.4AA(2)(b)]. “To live together requires that the two adult persons be seen as regarding the place or places in which they live as "their home".”
His Honour referred to White J citing that passage with approval in Vaughan v Hoskovich [2010] NSWSC 706 where White J stated that:
“satisfaction of the requirement that the persons live together as a couple [s.4AA(1)(c)] does not require that they have a common residence on a full time basis”.
Justice Murphy referred to the Queensland case of KQ v HAE [2006] QCA 489; [2007] 2 Qd R 32 that:
“a “de facto relationship" will not be established for the purposes of pt 19 of the Property Law Act… 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”.” [19]
Justice Murphy quoted from that decision as follows:
“[18] …. 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.”
Justice Murphy decided in Jonah & White as follows:
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”.
THE PRESENT CASE
67. In my judgment, the evidence as a whole, sees here two people who each sought to, and did in fact, maintain separate lives – the respondent living with his wife and children in their matrimonial home and the applicant living by herself in her own residence – but who came together, on a regular basis, for periods of time during which they enjoyed a loving, sexual relationship. But, absent from the relationship, in my judgment, was the “merger of two lives into one”, or the “coupledom” as earlier referred to.
68. I accept that the long-standing nature of the relationship is a pointer toward the relationship being a de facto relationship. So, too, the fact that the parties maintained a consistent sexual relationship, and that, for each of them, the sexual relationship was exclusive of other partners (noting that the respondent maintained a relationship with his wife and had “a few one night stands”). Similarly, the financial support provided to the applicant by the respondent for a number of years and the contribution by him to the applicant’s home are factors pointing toward that conclusion.
69. But, a number of other indicia point, in my view, to the opposite conclusion:
· Each of the parties kept and maintained a household distinct from the other;
· In the respondent’s case, that household involved the maintenance of family relationships, including the support of children;
· The evidence does not reveal any relationship, or any intended relationship, between the applicant and the respondent’s children who, it ought be observed, were relatively young when the relationship commenced;
·
The relationship between the applicant and the respondent was clandestine and the time spent between the parties was spent (on either party’s case) very much together, as distinct from time spent socialising as a couple;
….”
His Honour was not persuaded that a de facto relationship existed between the parties, and dismissed the application.
Ms Portelli referred to the decision in Baker & Landon [2010] FMCAfam 280 where Federal Magistrate Reithmuller considered a claimed de facto relationship, and decided at [14] that:
“As a result the phrase ‘living together on a bona fide domestic basis’ must be read broadly enough to at least allow for the possibility of cases where a person has multiple relationships in different households that simultaneously fall within s.4AA”.
At [18]:
“… the phrase ‘living together’ cannot be taken in isolation and read as requiring that de facto couples always live together”.
And at [21]:
“The words of s.4AA, making it clear that not every factor is necessarily required to be considered….”
Considering the evidence in this case the Court finds
·That the parties never lived together in a claimed common residence.
·The respondent did not consider the applicant’s residence in Bendigo as his home.
·The applicant never moved in or lived with the respondent in Geelong.
The Court finds that the key to the definition of a de facto relationship is “whether the parties have so merged their lives that they were, for all practical purposes, ‘living together’ as a couple on a genuine domestic basis”. Jonah & White Ibid [60].
To make that determination the Court must examine the evidence and circumstances as set out in s.4AA(2).
The circumstances in s.4AA(2)
Section 4AA(2)(a) – “the duration of the relationship”
The applicant asserts that the relationship lasted for two years and ten months. The Court accepts that estimate and nothing turns on it.
Section 4AA(2)(b) – “the nature and extent of their common residence”
As found above, the parties did not have a common residence at any stage. In her affidavit filed on 1 June 2011 the applicant deposes at [4] that:
“The Respondent and I did not ever live together as husband and wife….”
The Court refers to Moby & Schulter (supra) at [140] that:
“… if a couple do not live together at any time, they cannot be seen as being in a de facto relationship”.
Section 4AA(2)(c) – “whether a sexual relationship exists”
There is no dispute that a sexual relationship existed from around December 2006 until around when the parties ended their relationship in July 2009.
Section 4AA(2)(d) – “the degree of financial dependence or interdependence, and any arrangements for financial support, between them”
The applicant deposed in her affidavit filed on 9 November 2011 at [7(m)] that:
“As I was managing my own income there was not a need for the Respondent to give me money on a regular basis”.
The Court finds that there was no financial dependence or interdependence, or arrangements for financial support between the parties. The respondent has been assessed to pay child support for [Y], but that does not fall within s.4AA(2)(d). The respondent paid to install the applicant’s air conditioning, and paid legal costs of $1,100.00 for her. He also gave her $200.00 on occasions (T 14/11/2011 p.37, l.25). There was no financial dependence between them.
Section 4AA(2)(e) – “the ownership, use and acquisition of their property”
There is no evidence that the parties owned or acquired any property together. The applicant concedes that there was not any common use or acquisition of property (T 14/11/2011 p.51, l.15). The respondent stayed in the applicant’s house in Bendigo when he visited there. The applicant sometimes stayed with the respondent in the Geelong area when she visited there.
Section 4AA(2)(f) – “the degree of mutual commitment to a shared life”
The applicant gave evidence that the respondent found a house for them to live together in Geelong and that the respondent’s mother told her that her son loved the applicant and wanted her to live with him in Geelong. The applicant gave evidence that it was her expectation that the respondent would propose marriage or a more permanent relationship with her while they were in Europe. However the parties never shared a common residence in Geelong, and Part VIIIAB of the Act does not provide for relief “in circumstances where one party has induced in the other an expectation of a relationship of greater commitment than that which transpired”. Jonah & White (supra) at [58]. This is not a case where a conclusion that the parties had been living together as a couple on a genuine domestic basis could be:
“… 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”. KQ v HAE (supra at [20]) and cited by Justice Murphy in Jonah & White (supra at [57])
In the present case the respondent gave evidence that “they did not take the next step” (of becoming a couple and moving in together).
Section 4AA(2)(g) – “whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship”
It is common ground that it was not so registered.
Section 4AA(2)(h) – “the care and support of children”
The expression “children” is not confined to a “child of the de facto relationship” as defined in s.90RB. The Court can therefore consider evidence of the parties caring for the children of their marriages. The respondent took the applicant’s children to two or three sporting events (T 14/11/2011 p.14, l.21) and bought them ice-creams. He may have looked after them at times whilst on holiday in the Geelong area. He took one of her children fishing once. Similarly, the applicant may have looked after the respondent’s children while she was in the Geelong area. There is no evidence that either supported the other’s children financially, or in any other way. There were a couple of occasions when the applicant had contact with the respondent’s children in Geelong (T 14/11/2011 p.13, l.33) and there was a lot more contact after the respondent became aware that [X] is his daughter (T 14/11/2011 p.14, l.6).
Section 4AA(2)(i) – “the reputation and public aspects of the relationship”
The respondent denies that the applicant was ever introduced by him to his associates other than by her name. The applicant concedes that (supra). The respondent told his business partner Mr K, that he had “met up again with an old girlfriend from when he was at school in Bendigo” (affidavit of Mr K filed 8 November 2011 at [6]). The respondent “didn’t give me any details about his relationship with this person” (Ibid [7]). Mr K assumed that the respondent was “having a very discreet affair with her” (Ibid [7]). The applicant was introduced to Mr K’s wife by name only (Ibid [11]). Mr K met the applicant twice several years ago (Ibid [8]) and there was “certainly was never any talk about them being a couple” (Ibid [14]). Other than the two occasions above, Mr K never saw the applicant at any social or business related functions in the company of the respondent (Ibid [15]). Mr K has been close friends with the respondent for 18 years (Ibid [2]). Clearly from the evidence of Mr K, to him the applicant was an “old girlfriend” that the respondent “was having a very discreet affair with” (Ibid [7]).
The respondent’s mother (Ms T) gave evidence that the respondent told her that “he was thinking of leaving his wife to be with Ms Jensen” (affidavit of Ms T filed 8 November 2011 at [6]). For a long time she:
“…did not see any sign of Ms Jensen in Mr Taylor’s life. I did not see them together or hear about them being together. He never brought Ms Jensen into contact with the family. He continued to live by himself”. (Ibid [11])
She states that:
“…I always regarded her as the ‘other woman’ with whom
Mr Taylor was having an affair. At no time did I ever consider that they were a couple (Ibid [20]). The affair between Mr Taylor and Ms Jensen was not common knowledge among the family (Ibid 21]). I certainly did not tell any of my friends about it and I never heard about it from anybody else (Ibid [22]).
The exhibited photographs of the children with other persons do not go to prove that the parties were in a de facto relationship. The children spent some time together.
The respondent states in his affidavit filed 4 July 2011 that the applicant stated:
“I know we were not in a de facto relationship but we did have a relationship and you left me with a child”.
That evidence was not contested by the applicant. The applicant gave evidence that in 2007 she wanted to move to the next stage of living together as a couple, as man and wife under the same roof (T 11/11/2011 p.36, l.15). “The next step was to move in with Mr Taylor and live together” (T 11/11/2011 p.36, l.35). The applicant stated:
“The respondent and I never lived together as husband and wife”. (Affidavit of applicant filed 1 June 2011 at [4] and that “the respondent kept putting off arrangements” (Ibid [5]).
On page four of the applicant’s Initiating Application, she marked “Date parties commenced to live together” as “not applicable”. The respondent gave evidence that if the applicant had moved to Geelong, and the relationship continued, the next step would have been there (T 14/11/2011 p.22, l.19). The applicant did not move to Geelong and the relationship ended.
As to the respondent’s suggestion that the applicant needed a name change, the relationship did not develop as hoped for by the applicant. Refer Jonah & White (supra at [58]). The applicant stated that she “took that we were going to…” (T 14/11/2011 p.7, l.7).
The Court accepts the respondent’s evidence as to how the applicant was introduced at one business function in Europe; The applicant accepts that she was introduced by her name only (T 11/11/2011 p.29, l.34).
The Court has regard, and gives weight to, the following circumstances [s.4AA(4)]:
·The parties did not have a common residence at any stage;
·There was no financial dependence or interdependence between the parties;
·The parties did not own or acquire any property together;
·There was never any commitment by the respondent to a shared life, and therefore, there was never any mutual commitment to a shared life;
·The relationship was not registered under a prescribed State or Territory law;
·There was little care and support by either party for the other’s children. The respondent wanted to be involved in [X]’s and [Y]’s lives, but has not actively been involved in their care and support.
Ms Portelli submits that the Court should consider what is in the best interests of [Y] in deciding whether there was a de facto relationship, by having regard to the considerations in s.60CC. Mr Hogan submits that those considerations are relevant when the Court is making a parenting order (s.60CA) but not where the Court is determining whether there was a de facto relationship. Ms Portelli was unable to refer to any provision in the Act that requires the Court to take the best interests of [Y] into account when deciding this issue. The Court accepts the submission of Mr Hogan.
The Court declares that a de facto relationship never existed between Ms Jensen and Mr Taylor.
Having made that declaration, the Court dismisses the application for spousal maintenance and revokes order 2 of the orders made on 6 July 2011, which adjourned the matter for final hearing on 3 February 2012. The Court orders that the matter is removed from the list of pending cases.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of F. Turner FM
Date: 25 November 2011
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