KEEM & POLMEAR

[2021] FCCA 538

FEDERAL CIRCUIT COURT OF AUSTRALIA

KEEM & POLMEAR [2021] FCCA 538

Catchwords:
FAMILY LAW – De facto property adjustment – threshold hearing as to whether de facto relationship existed – orders made.

Legislation:

Family Law Act 1975 (Cth), ss.90RD, 4AA

Cases cited:

Crick & Bennett [2018] FamCAFC 68

Applicant: MS KEEM

Respondent: MR POLMEAR

File Number: PAC 1498 of 2020

Judgment of: Judge Newbrun

Hearing date: 5 March 2021

Date of Last Submission: 5 March 2021

Delivered at: Parramatta

Delivered on: 29 March 2021

REPRESENTATION

Solicitors for the Applicant: Mr Hogg - Maatouks Law Group

Solicitors for the Respondent: Ms Searle - Caldwell Martin Cox

ORDERS

1. The Respondent’s application, pursuant to section 90RD of the Family Law Act 1975 (Cth) (“the Act”), that the Court make a declaration that the parties were not in a de facto relationship within the meaning of section 4AA of the Act at or at any date subsequent to 1 March 2009 AND IT BE NOTED that the Court is therefore absent jurisdiction to entertain any application under Part VIIIAB of the Act, is dismissed.

2. The Court declares that the parties were in a de facto relationship, within the meaning of section 4AA of the Act, from about 1977 to about October 2019.

IT IS NOTED that publication of this judgment under the pseudonym Keem & Polmear is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 1498 of 2020

MS KEEM

Applicant

And

MR POLMEAR

Respondent

REASONS FOR JUDGMENT

Introduction

1. This determination relates to the Applicant’s proposed property adjustment orders, as set out in her Initiating Application filed 27 March 2020, in relation to a contended de facto relationship between the parties. 

2. The Respondent seeks a declaration, pursuant to section 90RD of the Family Law Act 1975 (Cth) (“the Act”), that the Court make a declaration that the parties were not in a de facto relationship within the meaning of section 4AA of the Act at or at any date subsequent to 1 March 2009 AND IT BE NOTED that the Court is therefore absent jurisdiction to entertain any application under Part VIIIAB of the Act. The Applicant opposes the making of such declaration.

3. A short hearing was held on 5 March 2021 where the parties’ legal representatives made oral submissions to the Court in support of their proposals.  The legal representatives, on behalf the parties, expressly declined to conduct any cross-examination of the parties and lay witnesses who had filed Affidavits.

4. For ease of reference, in these Reasons the Applicant shall be referred to as the Wife, and the Respondent as the Husband.

Proposals and Material relied upon

1. The Husband’s proposed Orders were set out in his Response filed 22 October 2020, and which included the above proposed declaration pursuant to section 90RD of the Act.

2. The Wife opposed the making of the above declaration.

3. The Wife relied upon the following documents:

   a)Initiating Application filed 3 April 2020;

   b)Financial Statement filed 27 March 2020;

   c)Affidavits of Wife filed 27 March 2020, and 18 December 2020;

   d)Affidavit of Ms A Polmear filed 18 December 2020;

   e)Affidavit of Ms B filed 18 December 2020;

   f)Affidavit of Ms C filed 18 December 2020;

   g)Affidavit of Mr D filed 18 December 2020;

   h)Affidavit of Mr E filed 18 December 2020;

   i)Affidavit of Mr F filed 18 December 2020;

   j)Affidavit of Mr G filed 18 December 2020.

   k)Affidavit of Husband filed 22 October 2020; the Wife relied upon this Affidavit because her Affidavit filed 18 December 2020 expressly responded to this Affidavit of the Husband.

   l)Her Case Outline filed 1 March 2021.

4. The Husband relied upon the following documents:

   a)Response filed 22 October 2020;

   b)Financial Statement of Respondent Husband filed 22 October 2020;

   c)Affidavit of Husband filed 17 February 2021;

   d)Tender Bundle of Husband: Exhibit A.

   e)His Case Outline filed 1 March 2021.

Evidence

1. The Court refers to its findings below under the heading “Discussion”.

Relevant legal principles

1. Section 4AA of the Act sets out the meaning of a 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.

2. As to the proper construction to be applied to section 4AA of the Act, the Court refers to relevant case law authority of the Family Court of Australia as set out in the Full Court of the Family Court of Australia’s decision in Crick & Bennett [2018] FamCAFC 68 at paragraphs 13-14, including the decision in Crick & Bennett.

Discussion

1. In resolving the issue of whether the parties were in a de facto relationship, the Court is required to have regard to all the circumstances of the parties’ relationship and determine whether they had a relationship as a couple living together on a genuine domestic basis. Those “circumstances” may include any or all of the matters set out in section 4AA(2) of the Act. The Court now proceeds to consider the circumstances of the parties’ relationship and make findings:

   a) The duration of the relationship

2. The Husband concedes that the parties had a defacto relationship from about 1978 to about 1985.

3. The Court finds that the parties’ relationship commenced in about 1977 and continued until about October 2019.

   b) The nature and extent of their common residence

4. The parties lived together, during the course of their relationship, at various properties. For a significant period, the parties and their daughter, Ms A Polmear, went back and forth between a Housing Commission property at Suburb H (let to the Wife) and a property at Town I where they resided together.

5. Then in about late 1993 early 1994, when the parties purchased the business called Company J, they nearly always resided in the property at Suburb H.

6. The Court refers to the various third-party letters addressed to the Husband (and/or to the Husband and Wife) at the Suburb H property set out in Annexure I to the Affidavit of the Wife filed 18 December 2020 (for example, in 1981, 1995, 1996, 1997, 1998).

7. A property was purchased at Town K in about 1994, and the parties spent time with Ms A Polmear working at that property, especially on weekends, but they typically returned to sleep at the Suburb H property.  By about 1998 a small house on the property had been finished, although the parties and Ms A Polmear continued to return to the Suburb H property most nights to sleep after working at the property or at Company J during the day.

8. Whether the parties were at the Suburb H property or the property at Town K, they stayed the night at the same house together.

9. The parties had their own bedroom and slept together in the same bed. 

   c) Whether a sexual relationship exists

10. The parties had a sexual relationship during their relationship. The Husband did struggle to perform sexually with the Wife due to his health for a significant period, but despite this the parties tried to have sex on many occasions up until about the time of the separation.

    d) The degree of financial independence or interdependence, and any arrangements for financial support, between them

11. The parties lived together in the Housing Commission property at Suburb H for a significant period of time during the relationship. This property was let to the Wife through the Housing Commission.

12. Early in their relationship, the parties purchased and sold goods together.  Ms A Polmear assisted them in this regard.  The parties also worked together in buying and repairing second-hand items and reselling them.

13. The Wife worked in the business Company J for a significant period.  The Husband paid the Wife monies earned in this business.  The Wife, with those monies, paid household bills, groceries and other necessities for the family.

14. After the Wife started receiving a pension in January 1998 that money went into the Wife’s bank account, however the Husband would take monies from the account each fortnight during the relationship.

    e) The ownership, use, and acquisition of their property

15. The Wife and Husband worked together for a significant period to fix up a prebuilt home moved to and installed at the Town I property.

16. The Wife and the Husband worked on the property at Town K including caring for animals for a significant period.

    f) The degree of mutual commitment to a shared life

17. The Wife and Husband worked together during their relationship for significant periods, including in the business Company J, at the Town I property, and at the Town K property.

18. The various photos annexed to the Wife’s Affidavits, in which the parties are shown, whether together or with extended family, are consistent with the existence of a de facto relationship between the parties.

19. The Wife cared for the Husband on occasions when the Husband became particularly ill during the relationship. For example, the Wife cared for the Husband when he was off work for about 6 to 8 weeks early in their relationship.  Further, for example, in about 2014, the Wife cared for the Husband.

20. In about 1994 the Husband proposed marriage to the Wife which the Wife accepted however the parties did not get married.  The Court, in this context, refers to the copy photographs annexed to the Wife’s Affidavit filed 18 December 2020, taken at the time the parties became engaged, and being Annexure D.

21. The parties, during the course of their relationship, went on family holidays together and with friends and family, including Ms A Polmear.  The Court refers to the Wife’s various photos in this context.  The parties and Ms A Polmear signed an occupation agreement for a caravan park in the second half of 2006.

22. The parties share the same birthday. Throughout their relationship they celebrated birthdays together with family and friends.  For example, in 2017 this occurred.

23. During the parties’ relationship they attended many social events as a couple, as well as often hosting family at the Suburb H property.

24. The parties, during their relationship, were observed by Ms A Polmear together, whether they were at home, working, out shopping, or attending medical appointments.

25. The Husband himself admits that the parties had, for the most part, an amicable and friendly relationship until about October 2019.

    g) Whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship.

26. Not applicable.

    j) The care and support of children

27. The parties had one child, Ms A Polmear born 1977.

28. Ms A Polmear had significant involvement in the lives of the parties throughout her life and during the parties’ relationship.  Ms A Polmear spent holidays with the parties and celebrated special occasions with the parties during the parties’ relationship.

29. During the parties’ relationship the Husband gave the Wife money for the child to meet costs for food and other basics.  The Husband also contributed towards Ms A Polmear’s dance costs, including for lessons, costumes and shoes.  The parties, during their relationship, attended Ms A Polmear’s school events and dance concerts.

    i) The reputation and public aspects of the relationship:

30. The Court refers to the above discussions as to relevant circumstances relating to the parties’ relationship.

31. The parties’ daughter Ms A Polmear, throughout her lifetime, has known the parties to be in a relationship, and she has never known them as separated people until late 2019.

32. Mr F, grandson of the Wife, aged 34 years, has referred to the Husband as Pop for his whole life.  As a child he often visited the parties with his parents on a weekly basis.  He often spent nights at the Suburb H property as a child on occasions when his parents would go out.  The parties, he observed, would always be there together, and these occasions would mainly be school holidays, and every couple of months in the early 1990s.

33. Mr F would often go and help the parties and Ms A Polmear at the business Company J. The parties would always provide him lunch and dinner when he went to work with them.

34. Mr F would stay over at the Town K property occasionally on weekends and frequently during school holidays with the parties from the age of 10 onwards.  He spent a lot of time at the Town K property with the parties.

35. Mr F and his fiancée Ms B have been together since 2005, and in that time they have visited and spent time with the parties at both the Town K and Suburb H properties. He and Ms B would visit the parties on or about close to a weekly basis with the children.

36. Ms B (hereinafter ‘Ms B’), the fiancée of Mr F, first met the parties together in 2006 and they were introduced to her as Nan and Pop.

37. Ms B has been in a relationship with Mr F for 15 years, and in those years since meeting the parties, she has always referred to the parties as Nan and Pop and she has always thought that they were a couple.

38. Ms B observed the parties attending various family occasions together including Ms B’s son’s birthday parties, Christmas celebrations, occasional dinners every few months, and family get-togethers also every few months.

39. Ms B observed that birthday cards received for her son from the parties will be signed Nan and Pop.

40. Ms B and Mr F would visit the parties weekly, regardless of whether it was at the property at Town K, or at the Suburb H property.  She always saw them together at these visits.

41. When Ms B and Mr F would visit the parties at the Town K property, she observed the parties working, tending to animals and maintaining the paddocks. The parties would cook lunch and there would be family feasts.

42. Ms B, Mr F and their son often spent time with the parties at Suburb L, and the last time they spent a holiday together was on Australia Day 2018.

43. Ms B, Mr F and their son went with the parties and Ms A Polmear, in about late August or early September 2019, to view a house for sale in M Street.

44. Ms C, a friend of the parties, has known the parties for about 20 years. She first met the parties when they were on holiday at a caravan park in Suburb L some time in about the year 2000, where she was also on holiday with her family.  She and the parties became friends and she would see the parties with Ms A Polmear at the caravan park many times while both her family and theirs were on holiday.  Each holiday typically lasted three weeks. Ms C can recall the Husband referring to the Wife as his Mrs when talking about her.

45. Ms C visited the parties at the Suburb H property on about 20 different occasions during the years of their friendship. Ms C can recall that the parties attended the wedding of her sister in November 2010, and attended a barbecue hosted by her sister in Suburb N NSW in February 2013, which was one of multiple times that the parties visited her sister’s home. Ms C observed that the parties and Ms A Polmear always appeared very happy and loving to her.

46. Mr D is the fiancée of the parties’ daughter Ms A Polmear. He has known the parties for nine years.  He met Ms A Polmear nine years ago in about 2011.  Six months into their relationship he was introduced to the parties when visiting the property at Suburb H. He can recall that when he first met the Husband he said to him, words to the following effect, “My name is [Mr Polmear], nice to meet you, this is my Wife [Ms Keem].”

47. Mr D can recall the Husband on multiple occasions insisting that he marry Ms A Polmear, and when he did so he would say words to the following effect, “I want you to be like me and [Ms Keem].”

48. Mr D, from late 2012 to March 2015 spent, with Ms A Polmear, almost every weekend working on the property at Town K.  While he and Ms A Polmear would help on this property, he always saw the parties at the Town K property.

49. Mr D saw the Wife by the Husband’s side, appearing inseparable, at Christmas, birthdays, and special events.

50. Mr E was the neighbour of the parties at O Street Suburb H for 40 years.

51. Mr E states that the parties were his neighbours from 1979 to 2019 when the Husband stopped living there. He can recall over the years that the Husband would be at the Suburb H property most nights.  He occasionally heard the Husband yelling at the Wife and Ms A Polmear but generally he observed them to be a loving couple and family.

52. Mr E, over the years, became friends with the parties and attended their family gatherings, such as their birthdays and the wedding of Ms A Polmear.

53. Mr G is the adopted brother of the Wife.  Over the years he has heard the Husband refer to the Wife as either his Wife or his partner to acquaintances and friends.  He states that the family, which the Court infers to at least include the parties, lived together at the Suburb H property until late 2019.  He states that he and his family, every now and then, visited the Town K property where his children would enjoy the ponies and various animals on that property.  He also visited the Suburb H property quite often.  He states that over the 40 years that the parties have been together, he has spent many holidays and special occasions together with them; he states that most Christmas holidays were spent at Suburb L caravan park and he recalls Ms A Polmear’s birthday in 2005 also being at the caravan park where the entire family spent time together.  He states that the parties had even come together to visit his home in Town P in March 2019 in their campervan.  He states that in about November 2019, he helped the parties and Ms A Polmear to clean and pack up the Town K property.  He states that in about November 2019 he spent two days helping the parties move furniture to the new house that the Husband had bought in Town Q.

54. The Court now refers to the Husband’s Tender Bundle of documents, Exhibit A, comprising subpoenaed documents, in particular, from Department of Housing NSW, and which include documents from Centrelink.

55. At the outset, it is the Wife’s sworn evidence, in her Affidavit filed 18 December 2020, that the Husband told the Wife during their relationship that she could not tell the Department of Housing NSW that she was in a relationship with the Husband so that she would not lose her Housing Commission property at Suburb H. The Court accepts this evidence.

56. The Court accepts the Wife’s evidence of the Husband being very controlling towards herself and Ms A Polmear, including in relation to money, throughout the relationship, and being abusive towards herself and Ms A Polmear throughout the relationship.  The Court also accepts Ms A Polmear’s evidence in this regard.  This evidence relating to the Husband being very controlling is consistent with the Wife’s evidence referred to in the paragraph immediately above.

1. The Wife admits that she did not disclose to the Department of Housing that she was in a relationship with the Husband and that he was living in the Suburb H property. 

2. The Court refers to its above findings relating to the Husband residing at the Suburb H property during the parties’ relationship.  The Husband himself refers to the Wife receiving approval from the Housing Commission to live in the Suburb H property, being the home that she had been on the waiting list for.  The Husband himself admits he and the Wife and Ms A Polmear all moved to the Suburb H property in April 1979 and that he lived in that property at least until about 1985.

3. The Court refers to the various Department of Housing documents in Exhibit A that pertain to the Wife’s occupation of the property at Suburb H and which variously state, inter alia, that the Wife is the tenant and resides at that property, that Ms A Polmear resides there, that the Husband does not reside there, that the Wife’s source of income is job search single, that the Wife is not partnered, that the Wife and Ms A Polmear have lived in the Suburb H property for more than 40 years, and that the Husband is not referred to by the Wife’s treating medical practitioners as having lived in the Suburb H property with the Wife and Ms A Polmear. The Court finds that the Wife’s apparent misstatements to the Department of Housing NSW relating to her not being partnered and the Husband not residing in the Suburb H property were likely made by her in conformity with the Husband’s statements to her that she should not tell the Department of Housing NSW that she was in a relationship with the Husband so that she would not lose the Housing Commission property at Suburb H.

4. In summary, by reference to the above discussions as to the circumstances of the parties’ relationship and related findings, the Court is satisfied on the balance of probabilities that the parties were in a de facto relationship from about 1977 to about October 2019. 

5. The Court is satisfied on the balance of probabilities that the parties had a relationship as a couple living together on a genuine domestic basis from about 1977 until about October 2019.

I certify that the preceding seventy two (72) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Associate: 

Date: 29 March 2021