Kelly and Temple
[2011] FMCAfam 683
•8 November 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KELLY & TEMPLE | [2011] FMCAfam 683 |
| FAMILY LAW – De facto – same sex couple – whether de facto relationship existed – whether de facto relationship ended before 1 March 2009. |
| Family Law Act 1975, ss.4AA, 44, 90SB, 90SE, 90SM, 90SK Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008, ss.86, 86A |
| Aitken & Deakin [2010] FMCAfam 35 Baker & Landon [2010] FMCAfam 280 Dakin & Sansbury [2010] FMCAfam 628 Jones v Dunkel (1959) 101 CLR 298 |
| Applicant: | MR KELLY |
| Respondent: | MR TEMPLE |
| File Number: | SYC 7784 of 2010 |
| Judgment of: | Monahan FM |
| Hearing dates: | 7 April 2011, 9 May 2011 and 30 May 2011 |
| Date of Last Submission: | 30 May 2011 |
| Delivered at: | Sydney |
| Delivered on: | 8 November 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Serisier |
| Solicitors for the Applicant: | Grover Law |
| Counsel for the Respondent: | Mr Quinn |
| Solicitors for the Respondent: | Cunningham Legal |
ORDERS
THE COURT DECLARES THAT:
Pursuant to s.90RD Family Law Act 1975 and for the purposes of an order under s.90SM of the Act, that the Applicant and the Respondent were in a de facto relationship which commenced in March 2006 and ended in July 2009.
AND THE COURT ORDERS THAT:
The substantive proceedings be adjourned for mention hearing on a date and time to be fixed (“the mention hearing”).
The question of costs be reserved.
AND THE COURT NOTES THAT:
(A)The purpose of the mention hearing is to make further directions in the matter, including whether the matter would benefit from a referral to a Conciliation Conference or private mediation and whether the matter should be listed for Final Hearing.
IT IS NOTED that publication of this judgment under the pseudonym Kelly & Temple is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 7784 of 2010
| MR KELLY |
Applicant
And
| MR TEMPLE |
Respondent
REASONS FOR JUDGMENT
Introduction
The Family Law Act 1975 (“the Act”) was significantly amended, with effect from 1 March 2009, to enable Courts exercising jurisdiction under the Act to make orders under Part VIIIAB in respect of spouse maintenance pursuant to s.90SE of the Act and/or the division of property pursuant to s.90SM of the Act between parties to a de facto relationship after the breakdown of their de facto relationship. This change followed the passage of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 and a reference of the necessary constitutional powers by the referring states, including New South Wales.
The parties in this matter are in dispute as to whether their former de facto relationship falls within this Court’s jurisdiction to determine property and financial disputes under the Act and, if so, whether MR KELLY (“the Applicant”) should be entitled to the property orders sought. Only the former issue is considered in this decision.
By his Initiating Application filed 10 December 2010 (“the Application”), the Applicant seeks various property orders arising out of an alleged three year de facto relationship with MR TEMPLE (“the Respondent”).
The Application is opposed by the Respondent who, in his Response filed 28 February 2011, seeks inter alia the dismissal of the Applicant’s claim and declarations that:
·no de facto relationship of more than two years existed; and
·the Court has no jurisdiction to hear the claim because the de facto relationship was terminated in December 2006 and the Respondent does not agree to ‘opt in’ pursuant to the transitional provisions of the relevant legislation.
The matter came before me for the first time in my duty list on 2 March 2011. Given the parties were in dispute about whether their former de facto relationship fell within the provisions of the Act, I agreed to set the matter down for final hearing of that discrete issue on 7 April 2011. Pursuant to orders made on that day the discrete issue to be determined is:
“a. whether the de facto relationship comes within the meaning of the Family Law Act 1975 (“the Act”); and
b. whether the Court has jurisdiction to deal with that particular de facto relationship (“the discrete issues”)”[1]
[1] Orders made 2 March 2011, paragraph 1.
The matter subsequently came before me on 7 April 2011 for hearing of the discrete issues. On this day the Applicant was self-represented, his former lawyers having filed a Notice of Withdrawal of Lawyer on 21 March 2011. The Respondent was represented by Mr Quinn of Counsel. Unfortunately as the matter was not finalised within one day, it was adjourned part-heard until 9 May 2011 and again until 30 May 2011. On the two subsequent hearing days the Applicant was legally represented by Mr Serisier of Counsel and Mr Quinn again represented the Respondent.
Background
The Applicant was born [in] 1981 and was aged 29 years at the time of the Final Hearing. The Respondent was born in Russia [in] 1972 and was aged 40 years at the time of the Final Hearing. The Respondent is the father of a son, [X] aged 22 years.
The parties agree that they met in late 2005 and that they began living together on 24 March 2006. The Respondent asserts that their de facto relationship ended in late 2006 whereas the Applicant asserts that it did not end until mid-2009.
Both parties are in good health. Neither party had partnered at the time of the Final Hearing.
The Applicant is currently employed full time as a [omitted]. He is also a part-time student at the [university omitted] studying [omitted].
At the time the parties commenced their relationship the Respondent was [occupation omitted] in Sydney. In December 2008 the Respondent took up his present position as [omitted] in Melbourne.
Chronology
Both parties provided the Court with a chronology listing significant events in their relationship.
Unless otherwise indicated, the parties were not in dispute, or not in any significant dispute, in relation to the following:
·Late 2005: Parties meet in a [omitted] in Sydney;
·March 2006: Parties sign lease and commence living together in rented accommodation at Property W (“the Property W property”);
·November 2006: Respondent purchases a two bedroom unit at Property M (“the Property M property”) for $251,000.00 fully financed through a mortgage to the St George Bank;
·December 2006: Parties move into the Property M property; Respondent asserts parties cease sexual relations, that de facto relationship terminated and that Applicant moves into second bedroom as a tenant paying $110.00 a week; Applicant denies these assertions but admits paying $110.00 a week to assist with Respondent’s mortgage payments and asserts that parties share living expenses;
·August 2007: Respondent purchases investment property at Property P (“the investment property”) for $115,000.00 financed through a mortgage to the St George Bank ($109,000.00) and loan from his parents ($10,000.00);
·October 2007: Respondent asserts that he commences a sexual relationship with an unnamed male person from [T] that ceases in January 2008;
·January 2008: Renovations at the Property M property commence with parties in dispute as to Applicant’s involvement; Applicant asserts that he was involved in the planning and installation of the renovations; Respondent disputes this and asserts that he is assisted by the Applicant by allowing him to pay a reduced weekly rent per week for assisting with the renovation;
·Mid-2008: Parties travel to Europe (Russia and the Netherlands); Applicant asserts that Respondent purchased the airfare for the Applicant because he knew the Applicant could not afford it; Respondent asserts that Applicant agreed to repay Respondent for airfare and made some part-payments; Applicant asserts that the parties were introduced to the Respondent’s family as ‘partners’ and that they ‘exchanged rings’ during that trip (both assertions being denied by the Respondent); Respondent asserts that, during the trip to Amsterdam he has a sexual relationship with Mr V and that they had enjoyed sexual relations since early 2007 (these assertions being denied by Mr V);
·November 2008: Respondent asserts his employer offers him a ‘relocation package’ to Melbourne and that such offer was made on the basis that he was ‘single’ and not partnered;
·December 2008: Respondent asserts he relocates to Melbourne; Respondent asserts he commences personal relationship with Mr M, a friend of the Applicant, which ceases in July 2009 when Mr M moves from Melbourne; Mr M asserts that he was invited by the Applicant to provide the Respondent with “company”;[2] Mr M also asserts that he spoke to the Applicant by telephone in late 2008 or early 2009 and that he advised the Applicant of his affection for the Respondent;[3]
·January 2009: Applicant asserts that bathroom renovations continuing at the Property M property;
·February 2009: Respondent asserts he signs tenancy agreement for property at Property L (“Property L property”); Applicant asserts he visits and stays with Respondent in Melbourne with airfares and taxi from Melbourne Airport being paid for by Respondent’s employer;
·March 2009: Parties both attend Sydney Gay and Lesbian Mardi Gras parade; Applicant asserts that Respondent relocates to Melbourne (with the parties’ belongings); Respondent admits ceased to pay rent on 11 March 2009 and moves to [F] where he asserts he ‘house-sits’ for several months;
·April 2009: Applicant asserts he visits and stays with Respondent in Melbourne with airfares being paid for by Respondent’s employer; Applicant asserts that parties attended the Chapel Street Bazaar in Prahan together; Applicant asserts he sends email to Ms B indicating that he was considering ending his relationship with the Respondent;
·May 2009: Respondent visits Sydney and parties attend BBQ at [F];
·July 2009: Applicant asserts that de facto relationship with Respondent ends;
·September 2009: Applicant asserts he retrieves some personal belongings from the Property L property; and
·December 2009: Respondent sends email to Applicant advising him that he is ‘seeing’ another person; Applicant asserts he moves to [suburb omitted].
[2] Transcript, 7 April 2011, page 66.
[3] Ibid.
Evidence
Both parties provided the Court with affidavit and oral evidence. Each of the parties also provided written case outline documents and written final submissions.
In addition, the following witnesses were required for cross-examination:
·Mr M (on 7 April 2011);
·Mr V (on 7 April 2011); and
·Ms P (on 30 May 2011).
Evidence of the Applicant
The following documents were relied upon by the Applicant:
·Initiating Application filed 10 December 2010;
·Affidavit of the Applicant affirmed on 8 December 2010 and filed 10 December 2010;
·Affidavit of the Applicant affirmed on 16 March 2011 and filed 16 March 2011;
·Affidavit of the Applicant affirmed and filed on 4 April 2011;
·Affidavit of the Applicant affirmed and filed on 13 May 2011;
·
Affidavit of Mr V affirmed on 15 March 2011 and filed on
16 March 2011;
·
Affidavit of Mr Mr T affirmed on 15 March 2011 and filed on
16 March 2011; and
·
Affidavit of Mr G affirmed on 15 March 2011 and filed on
16 March 2011.
In addition the Applicant relied on a number of tendered documents.
Evidence of the Respondent
The following documents were relied upon by the Respondent:
·Response filed on 28 February 2011;
·Affidavit of the Respondent affirmed and filed on 26 February 2011.
·Affidavit of the Respondent affirmed on 31 March 2011 and filed on 1 April 2011;
·Affidavit of Ms P affirmed on 30 March 2011 and filed on 1 April 2011; and
·Affidavit of Mr M affirmed on 4 April 2011 and filed in Court on 7 April 2011.
Law and discussion
As stated, the Act was significantly amended with effect from 1 March 2009, to enable Courts exercising jurisdiction under the Act to make orders under Part VIIIAB, including the division of property between parties to a de facto relationship after the breakdown of their de facto relationship. These changes now apply to relevant de facto relationships in all States and Territories in Australia (with the exception of Western Australia).
If the Court’s jurisdiction is to be exercised in proceedings between those persons who have been in a de facto relationship, there are a number of threshold issues in the legislation which must be overcome. These threshold issues are whether:
·the relevant relationship falls within the meaning of “de facto relationship” as defined in the Act;
·the relevant relationship exceeds the minimum length requirement (or falls within an exception);
·the relevant relationship was in existence as at 1 March 2009; and
·the proceedings were commenced within two years of the end of the relevant relationship.
There is also a geographical requirement set out in s.90SK of the Act that is not in issue in these proceedings.
Meaning of “de facto relationship”
The first threshold issue is whether there has been a de facto relationship between the parties. The meaning of “de facto relationship” is defined in s.4AA of the Act which states:
“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.”
This definition should be interpreted in the context of the operation of the Act. In Baker & Landon [2010] FMCAfam 280, Riethmuller FM stated as follows:
“27.The matters referred to in s.4AA should be considered, along with any other facts or circumstances in the particular case or relationship ‘as may seem appropriate in the circumstances of the case’: see s.4AA(4). Care must be exercised before relying upon either the authorities, or developed norms, with respect to the definition of the term ‘de facto’ under other legislative provisions.”
In other words, whether the parties have been living in a de facto relationship must be determined by reference to the definition as set out in the Act. It cannot be determined by reference to the definition of “de facto relationship” as contained in other legislation or by reference to judicial decisions interpreting such other legislation. It was further stated by Bender FM, in Dakin & Sansbury [2010] FMCAfam 628 that:
“13. … the nature of the relationship cannot be determined by looking at external societal views of what constitutes a de facto relationship, nor is it determined by what the parties themselves thought their relationship to be.”
It is clear that as the definition is not prescriptive as to gender, the Act may be applicable to former de facto partners who are of the same gender.
Minimum length of the relationship
The second threshold issue to determine is whether the relationship complies with the requirements set out in s.90SB of the Act which states:
“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) 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.
In considering the issue of when separation occurred in relation to proceedings brought under Part VIIIAB of the Act, regard must be had to the analogous law with respect to determining the date of separation in marriages.
In his decision in Aitken & Deakin [2010] FMCAfam 35 (“Aitken”), McGuire FM provided a useful précis of the relevant law on separation in marriages which may also be pressed into service in cases involving de facto couples under the legislative amendments. In Aitken his Honour stated:
“9. Those authorities make it clear that there are three elements of separation in a legal sense. They are:
a) The development of an intention to separate. That intention need not be mutual.
b) The communication of that intention to the other party. In my view such communication should be unambiguous and unconditional.
c) Some form of action upon the determination to separate.
10. I am of the view that the test of the element of ‘communication’ is an objective one.
11. As Watson J stated in Todd and Todd (No.2) at [75,079] [(1976) FLC ¶90-008]:
Separation can only occur in the sense used by the Act where one or both of the spouses form the intention to sever or not to resume the marital relationship and act upon that intention, or alternatively act as if the marital relationship has been severed.
12. The communication of the intention is an absolute requirement. Whilst that communication can be spoken or unspoken [Falk and Falk (1977) FLC ¶90-247], it should be unequivocal, unconditional and unambiguous.
13. Whilst there are guiding principles, it remains that each case must be determined upon its own facts. As the Full Court of the Family Court of Australia said in Pavey and Pavey [(1976) FLC ¶90-051] at [75,214]:
…it is not possible to apply some mathematical formula to these activities and determine whether a ‘separation’ has occurred. Rather the evidence should examine and contrast the state of the marital relationship before and after the alleged separation.
14. There is also an issue of corroboration of fact of separation under the one roof. Some corroboration is usually required. In the case of Fenech and Fenech [(1976) FLC ¶90-035] the parties lived in a strained relationship and there was no intimate relationship between them. However, her Honour Evatt CJ did not consider such evidence sufficient. Her Honour said at [75,133]:
I am satisfied that the breakdown has been continuing for at least a year, but that is not enough…
Marriage comes in many shapes and sizes and many families are living in a strained relationship like this. To the outside observer, matters go on much as usual, and only within the family itself —between the husband and wife — is there any acknowledgment of the breach. To comply with the Act there must be some overt separation, some evidence that there are two households, not one…
15. In summary, therefore, I must find that at the relevant time there has been a breakdown of the relationship as distinct from a ‘breaking down’ of that relationship.” (footnotes omitted)
In the present case, the Court must be satisfied that one or both of the parties formed the intention to end the relationship and acted upon that intention. The Court must also be satisfied that the parties were each aware that the relationship had ended. In circumstances where one party had unilaterally formed the intention to separate, the Court must be satisfied that this party had communicated such an intention to the other party. While communication of the intention to separate may be implied by conduct, the separation must be otherwise overt.
Relationship in existence on or after 1 March 2009
Under s.86(1) of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (“the amending legislation”), de facto relationships that had broken down on a final basis prior to
1 March 2009 are excluded from the relevant property provisions of the Act.An exception is provided in s.86A(1) of the amending legislation whereby parties to a former de facto relationship may “[opt] into the new regime”. Pursuant to s.86A(2), in the event that the parties choose to ‘opt in’, their decision to do so is to be unconditional, and once made, their decision is irrevocable.
Pursuant to s.86A(7) of the amending legislation, a Court may make an order setting aside a choice to ‘opt in’ if the Court is satisfied that, having regard to the circumstances in which the choice was made, it would be unjust and inequitable if the Court does not set the choice aside.
Commencing proceedings within two years of relationship breakdown
Section 44(5) of the Act requires that proceedings for financial orders be commenced within two years of the breakdown of the de facto relationship.
It is interesting to note that as the constitutional reference of powers by the referring States was only in relation to the “breakdown” of de facto relationships, a de facto partner is not able to apply for maintenance during a de facto relationship, in contrast to a married partner who can.[4]
[4] See s.90SE(1).
Consideration of the threshold issues
In this case the parties agree that they commenced a de facto relationship in late March 2006 and upon them moving in together and renting at the Property W property. That said, the parties disagree significantly as to when their relationship ended.
The Applicant asserts that the relationship ended in mid-2009 when he advised the Respondent that he would not be relocating to Melbourne. The Respondent asserts that the relationship ended in late 2006 when the parties moved into the Property M property. I note that there was agreement between the parties that the Property M property was a two bedroom home unit.
From this, three questions arise for consideration:
·did the parties end their relationship in December 2006?
·did the parties relationship continue into 2007 but end upon the Respondent moving to Melbourne in late 2008?; and
·if the parties ended their relationship in 2009, was it prior to or after 1 March 2009?
Did the parties end their relationship in December 2006?
If the Court is satisfied that the parties ended their relationship in December 2006, then the minimum length threshold requirement would not be established. If so, then to progress his application, the Applicant would need to establish one of the exceptions to the minimum length requirement as set out in s.90SB of the Act.
While the Respondent agrees that he allowed the Applicant to move in with him into the Property M property, he asserts that the parties’ relationship was now one where one friend allowed the other friend to move into a spare bedroom on an informal tenancy arrangement. Although he asserts that there was an agreement that the Applicant was to pay rent, it was conceded by the Respondent that there was no written tenancy agreement between the parties. There is evidence before the Court that the Respondent received monies from the Applicant and that these monies were received on a regular basis.
The Applicant commenced the current proceedings by asserting that the parties purchased both the Property M property and the investment property as a couple but that the ownership of both properties was registered in the Respondent’s sole name for tax effective purposes. In respect of the investment property, there is evidence that it was negatively geared against the Respondent’s income. There is also evidence that the Respondent claimed home office expenses in respect of the Property M property but did not declare the payments received by the Applicant as rental income (although he intended to rectify this apparent oversight).
That all said, while there is no evidence before the Court that the Applicant made any financial contribution to the acquisition of the relevant properties, the evidence does not suggest that the parties had ended their relationship upon moving into the Property M property. If that was the intention of the Respondent, then there is no independent evidence that he communicated this intention to the Applicant at that time, if at all. Moreover, I am satisfied that there is no objective evidence before the Court that the Applicant would have known of that intention at that time.
While Ms P impressed as a witness, her evidence of what the Respondent told her in December 2006 is not evidence that would suggest that the Applicant was aware of the Respondent’s alleged intention to end the relationship.
Consequently, I am satisfied that the parties remained in de facto relationship at the end of 2006.
Did the parties relationship continue into 2007 but end upon the Respondent moving to Melbourne in late 2008?
The Applicant asserts that the parties’ relationship continued into 2007 and 2008 and did not end upon the Respondent taking up with his new job in Melbourne in December 2008. This is disputed by the Respondent who also asks the Court to accept that he was living separately and apart from the Applicant by late 2008, but that the Applicant was aware that he had formed an intimate relationship with Mr M at that time.
Apart from his evidence that he assisted the Respondent with the renovations for the Property M property, the Applicant asserts that the parties went to numerous social functions as a couple. In addition, while the parties agree that they travelled together to Russia and the Netherlands in mid-2008, the Respondent disagrees with the Applicant’s assertion that they travelled together as a couple and that the Applicant was introduced to the Respondent’s family in Russia as the Respondent’s ‘partner’. Moreover, the Applicant also asserts that the parties ‘exchanged rings’ during this trip although this is denied by the Respondent.
While the Respondent admits travelling with, and purchasing an airfare for, the Applicant, he denies the specific assertions made by the Applicant.
The Applicant asked the Court to accept the evidence of Mr V who gave evidence supporting the Applicant’s case and stated that he stayed overnight as a guest at the Property M property on a number of occasions, was present when the parties visited Amsterdam in 2008, and that he also attended the May 2009 BBQ at [F] which the parties acknowledged they attended.
Mr V also gave evidence that he was present in March 2009 when the Applicant moved out from the Property M property and moved into
Mr V’s parent’s home. Interestingly, Mr V described the Applicant’s move as a “sudden” and “very last minute” one and that he had been under the impression that the parties “were going to move together to Melbourne”.[5]
[5] Transcript, 7 April 2011, page 100.
In addition, Mr V confirmed that he travelled to Melbourne with the Applicant in September 2009 to collect some personal belongings of the Applicant, including a fish tank.[6]
[6] Ibid, page 101.
Mr V acknowledged knowing Mr M through his association with [sport omitted] but stated that he was not aware that the Respondent and
Mr M had formed a relationship.[7]
[7] Ibid, page 82.
Lastly, Mr V denied the Respondent’s assertion that he had engaged in sexual relations with the Respondent during the Amsterdam trip.[8]
[8] Ibid, page 101.
The Respondent, of course, asserts that the parties’ relationship ended in late 2006. That said, the Respondent also asserts that upon his move to Melbourne in late 2008 he commenced an intimate relationship with Mr M. This was confirmed by Mr M in his evidence, who in addition, gave evidence that he had spoken to the Applicant in late 2008 and was invited by the Applicant to provide the Respondent with “company”.[9] As previously stated, Mr M also asserts that he had a particular telephone conversation with the Applicant in late 2008 or early 2009 where he advised the Applicant of his affection for the Respondent.[10]
[9] Ibid, page 66.
[10] Ibid.
Apart from her evidence corroborating her assistance to the Respondent in the selection of the fit-out for the bathroom and kitchen renovations for the Property M property, Ms P gave evidence that she observed the Respondent being affectionate with another male called “[name omitted]” (from [T]) in late 2007. Perhaps of more relevance was her evidence that she did not see the parties “holding hands, kissing or hugging after December 2006”[11] and that she never observed the Applicant “sleeping in the main bedroom which was [name omitted’s] room”.[12] She also stated that she was a close confidante of the Respondent and that he had never mentioned to her that he had exchanged rings or had gone through “a ceremony with [Mr Kelly]”.[13]
[11] Affidavit of Ms P affirmed on 30 March 2011, paragraph 22.
[12] Ibid, paragraph 28.
[13] Ibid, paragraph 21.
The Applicant asks the Court to take notice of the Respondent’s failure to have his son [X] give evidence on his father’s behalf. As part of his case, the Respondent asserted that [X] had stayed overnight in the living room at the Property M property on various occasions and for varying periods since December 2006. This was disputed by the Respondent who asserted that [X] had occupied the second bedroom.
Under cross-examination, the Respondent asserted that his decision not to have [X] give evidence was to spare his son the “emotional trauma” of the trial.[14]
[14] Transcript, 9 May 2011, page 132.
While Mr V, Mr M and Ms P all impressed as witnesses, the Court agrees with the Applicant’s submission that the Respondent’s failure to call [X] is curious. [X] is an adult and clearly aware of his father’s sexual orientation. He was also present at the Property M property at critical times during the period that the parties disagree about whether they were cohabiting or not. While the Court understands that a parent may be motivated to spare a child from the rigour of cross-examination, given the High Court’s decision in Jones v Dunkel (1959) 101 CLR 298,[15] the Court could also assume that [X]’s evidence may not have assisted the Respondent.
[15] For a discussion of the rule in Jones v Dunkel see JD Heydon, Cross on Evidence, 7th edition, Lexis Nexis Butterworths, Australia, 2004 at [1215].
I am satisfied on the evidence that the parties’ de facto relationship continued into 2007 and 2008.
While there is evidence that by late 2008 the Respondent had accepted his employer’s offer of a promotion and agreed to relocate to Melbourne, there is also evidence that the relocation was not completed until after 1 March 2009. This is discussed further below.
Moreover, while I am satisfied that the Respondent was in an intimate relationship with Mr M by late 2008, I am not satisfied that this event alone constitutes the end of the parties’ relationship. While some couples may end a relationship when one becomes aware that the other is not being monogamous, such conduct does not automatically terminate the relationship. That said, such behaviour can lead to the end of a relationship.
Consequently, I am satisfied that the parties had not ended their relationship by the end of 2008.
If the parties ended their relationship in 2009, was it prior to or after 1 March 2009?
There is no dispute between the parties that by 1 March 2009 they were living in different cities. The significance of this reality needs to be examined in the context of the facts then existing.
The Applicant argues that by 1 March 2009 the parties were in the process of relocating together to Melbourne. The Applicant contends that from December 2008 until March 2009 the Respondent commuted from Sydney to Melbourne.
The Applicant acknowledges that the Respondent did eventually relocate to Melbourne. However, the Applicant asserts that this was during March 2009 following the parties moving out of the Property M property and the Respondent entering into occupation of the Property L property and organising the parties’ belongings to be moved to that new location.
There is evidence that despite his move to Melbourne, the Respondent returned to Sydney on a number of occasions during the first half of 2009. This is confirmed by the Respondent’s bank statements for this period (which are exhibited to the Respondent’s second affidavit). In addition, the Respondent’s “Expense Report” for the period December 2008 to February 2009 (Exhibit “A3”) contains multiple entries styled “Melbourne trip” and “house hunting trip”. Moreover, the travel documents from [omitted] Travel (Exhibits “A4” and “A5”) indicate that the Respondent travelled on multiple occasions during late January 2009 to March 2009, and when reconciled against the above-mentioned Exhibits, would tend to suggest a pattern of travel between Sydney and Melbourne.
While much of the Respondent’s case is based on the lack of documentation supporting a de facto relationship between the parties, there is documentation that would support the parties’ relationship continuing into February 2009. The parties agree that the Applicant visited and stayed with the Respondent in Melbourne arriving on 11 February 2009. There is also evidence that the Applicant’s return airfare was paid for by the Respondent’s employer (see Exhibit “A4”). Moreover, there is evidence that the Respondent claimed from his employer the cost of a taxi fare on
11 February 2009 styled in the Respondent’s “Expense Report” for the period December 2008 to February 2009 (Exhibit “A3”) as “taxi partner from airport”. While it is possible that the Respondent has falsely claimed these expenses from his employer, he did not assert that.Consequently, in the absence of evidence to the contrary, the Court is satisfied that the parties remained in a relationship in February 2009.
As stated, there is evidence that the parties were together on the night of the Gay and Lesbian Mardi Gras on 7 March 2009.
More importantly, there is also evidence that the Applicant visited and stays with Respondent in Melbourne for a second time arriving on 9 April 2009. Moreover, there is again evidence that the Applicant’s return airfare was paid for by the Respondent’s employer (see Exhibit “A5”).
There are also two aspects relating to the Applicant’s trip to Melbourne in early April 2009 worth comments:
·the Applicant’s assertion that both parties attended the Chapel Street Bazaar in Prahan on the same day; namely 11 April 2009, being an assertion that was not denied by the Respondent; and
·the Applicant’s assertion that he allowed the Respondent to use his mobile telephone to telephone a family member in Russia, again being an assertion that was not denied by the Respondent.
In addition, it is curious that the Respondent failed to produce his mobile telephone accounts (for number [omitted]) for the period 1 January 2009 to 6 May 2009 despite being served with a Notice to Produce on 19 May 2009 (Exhibit “A6”), which was 14 days before the last day of the hearing. The Applicant asserts that he made numerous mobile telephone calls to the Respondent during that period and this was not denied by the Respondent.
Given the weight of the evidence, the Court is satisfied that the parties’ de facto relationship did not end before 1 March 2009.
Given that the Court has preferred the Applicant’s evidence in respect of the relationship history, the Court further finds that the parties’ de facto relationship ended in July 2009, as asserted by the Applicant.
Conclusion
Given the above findings, the Court declares that the Applicant and Respondent were in a de facto relationship which commenced on 24 March 2006 and ended in July 2009.
The substantive proceedings for property settlement will be adjourned for mention on a date to be fixed. The purpose of the mention hearing will be to consider whether the matter may benefit from referral to a Conciliation Conference or otherwise to private mediation. Failing resolution at any such Conciliation Conference or mediation, the matter will be set down for final hearing.
The question of costs will be reserved to any final hearing.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Monahan FM
Date: 26 October 2011
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