LEONIDAS & WENHAM
[2018] FamCA 514
•13 July 2018
FAMILY COURT OF AUSTRALIA
| LEONIDAS & WENHAM | [2018] FamCA 514 |
| FAMILY LAW – DE FACTO RELATIONSHIPS – Whether the parties’ personal relationship was a de facto relationship within the meaning of s 4AA of the Family Law Act 1975 (Cth) – Where evidence did not support the finding that a de facto relationship existed – Where the applicant’s application is dismissed. |
| Commonwealth Powers (De Facto Relationships) Act 2003 (NSW) Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) |
| Hayes v Marquis [2008] NSWCA 10 Jonah v White (2012) FLC 93-522 Jones v Dunkel (1959) 101 CLR 298 Klintock v Ferder (2010) 43 Fam LR 135 Lynam v Director-General of Social Security (1983) 52 ALR 128 Sinclair vWhittaker (2013) FLC 93-551 |
| APPLICANT: | Ms Leonidas |
| RESPONDENT: | Mr Wenham |
| FILE NUMBER: | SYC | 5487 | of | 2017 |
| DATE DELIVERED: | 13 July 2018 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Carew J |
| HEARING DATE: | 14 - 16 May 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr O’Reilly |
| SOLICITOR FOR THE APPLICANT: | Farrar Gesini Dunn Sydney |
| COUNSEL FOR THE RESPONDENT: | Ms Eldershaw |
| SOLICITOR FOR THE RESPONDENT: | E H Tebbutt & Sons |
Order
The Initiating Application filed 23 August 2017 be dismissed.
All extant applications be dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Leonidas & Wenham has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA |
FILE NUMBER: SYC 5487 of 2017
| Ms Leonidas |
Applicant
And
| Mr Wenham |
Respondent
REASONS FOR JUDGMENT
Ms Leonidas and Mr Wenham had a personal relationship for a number of years spanning 2000 to 2014 or 2015 but they disagree about the nature of that relationship i.e. whether or not it was a de facto relationship within the meaning of s 4AA of the Family Law Act 1975 (Cth).
Ms Leonidas contends that she and Mr Wenham lived in a de facto relationship during the following periods:
a)January 2002 to July 2009;
b)August 2009 to June 2010;
c)June 2010 to 18 October 2011;
d)November 2011 to 16 October 2013; and
e)February 2015 to 6 September 2015.
Mr Wenham admits that he and Ms Leonidas had a close personal relationship in the form of ‘boyfriend and girlfriend’ during some of the periods contended for by Ms Leonidas but denies it was a de facto relationship. Mr Wenham contends that their relationship ended on a final basis in August 2014.
The consequences for Ms Leonidas of the relationship not being a de facto relationship enduring on or after 1 March 2009, will be that she is unable to apply for a property settlement against Mr Wenham in this Court (see s 90SM) because the Court will not have jurisdiction (the State of New South Wales having referred its powers in relation to such matters commencing on that date).[1]
[1] See Commonwealth Powers (De Facto Relationships) Act 2003 (NSW) and Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth), s 86(1).
For the reasons which follow I am not satisfied that Ms Leonidas and Mr Wenham were living in a de facto relationship on or after 1 March 2009 and her Initiating Application filed 23 August 2017 will be dismissed.
Included in Mr Wenham’s Response to Initiating Application filed 22 November 2017 was an application for a vexatious proceedings order but that was not pressed and it will be dismissed.
issue
The only issue for determination before me is the threshold one of whether or not Ms Leonidas and Mr Wenham were in a de facto relationship for an aggregate period of at least two years ending on a date after 1 March 2009 (s 90SB(a)).
Legal principles
Upon application for a property settlement order (s 90SM) the Court can make a declaration that a de facto relationship existed, or never existed (s 90RD (1)). As the jurisdiction of the Court to make a declaration is only for the purposes of the primary proceedings, (in this case being the s 90SM proceedings), the Court does not have jurisdiction to make a declaration (other than that a de facto relationship never existed) if final separation occurred prior to 1 March 2009.[2]
[2] It does seem curious that this provision appears to indicate that the Court can make a declaration that a de facto relationship never existed when the jurisdictional basis for granting declaratory relief is absent. It might be thought sufficient to simply dismiss the application for a declaration which is what the respondent seeks in this case. For a discussion of the jurisdictional limitations where the Court’s accrued jurisdiction is sought to be relied upon see Klintock & Ferder (2010) 43 Fam LR 135 (Cronin J).
For the purposes of this case, the jurisdiction to make a property settlement order is dependent upon certain jurisdictional facts, namely, that there was a de facto relationship for an aggregate period of not less than two years and that it did not break down (on a final basis) before 1 March 2009.
Section 4AA of the Act relevantly provides that a person will be found to be in a de facto relationship with another person if ‘having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.’
Thereafter, s 4AA sets out a number of ‘circumstances’ that may be relevant in determining whether or not the relationship was a de facto relationship. Those circumstances are:
(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.
No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship (s 4AA (3)).
A court determining whether a de facto relationship exists is entitled to have regard to such matters, and attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case (s 4AA (4)).
Importantly in this case, a de facto relationship can exist even where one of the persons is married to someone else (s 4AA (5)(b)).
While different terms or phrases might be used in describing the relationship necessary for a finding that it is a de facto relationship e.g. ‘the manifestation of coupledom’ or ‘the merger of two lives’[3] the Full Court in Sinclair &Whittaker[4] said:
Comments made in the course of discussing facts are not to be elevated to the status of the provisions of the statute or substituted for the statutory test. This is because, taken on their own, they either add nothing to the statutory test, or if they do, they are adding an impermissible gloss. Thus it is not appropriate to consider the facts other than in the light of the statutory test.
[3]Jonah & White (2012) FLC 93-522(see [21] of Full Court judgment per Murphy J as the trial judge).
[4] (2013) FLC 93-551, [94].
The Full Court in Sinclair adopted the observations of Fitzgerald J in Lynam v Director-General of Social Security[5]:
Each element of a relationship draws its colour and its significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.
[5] (1983) 52 ALR 128, [131].
Whether or not the parties live in a de facto relationship is a question of fact to be determined by the Court.[6] The perception by the parties of their relationship is a relevant matter but not determinative.[7] Also in Sinclair[8] the Full Court quoted with apparent approval McColl J in Hayes v Marquis[9] who said:
Statements to a government authority apparently inconsistent with a party’s case may complicate the resolution of the issue of the nature of the relationship, but they are not determinative. They are taken into account as part of all the circumstances ... (Reference omitted)
[6]Sinclair &Whittaker (supra), [65].
[7] Ibid.
[8] Ibid,[66].
[9] [2008] NSWCA 10,[99].
The onus of proof rests with the person asserting the existence of the de facto relationship and the standard of proof is the civil standard i.e. on the balance of probabilities.
application of the legal principles
It is common ground that:
a)There was a relationship between the parties during some of the period commencing 2002 to 2014;
b)The parties had a sexual relationship;
c)The parties did not acquire any property jointly;
d)The parties did not have a joint bank account;
e)The parties did not have any joint liabilities;
f)The relationship was not registered; and
g)The parties did not have children together.
As to areas about which there is dispute, I note that s 55 of the Evidence Act 1995 (Cth) provides that evidence must be able to rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
In this case, Ms Leonidas relies to a significant extent on mere assertion with little if any evidence to prove those assertions. By way of example, Ms Leonidas asserts as a fact that “[Mr Wenham] had his clothes, suits, shoes, casual clothes and all of his cosmetics at my home.” This is an assertion denied by Mr Wenham who says he came and went with an overnight bag. Ms Leonidas provides no evidence to support her assertion e.g. where he kept his clothes and cosmetics in the many residences she alleges they shared or what cosmetics he used and in which cupboard/s they were kept etc. Ms Leonidas’s son, Mr X, having made an assertion in his affidavit to the same effect as his mother, readily conceded during cross-examination that he did not actually see the clothes or cosmetics at the homes.
To the extent that Ms Leonidas provides evidence as opposed to mere assertion of a fact, it is in many respects inconsistent and at times dishonest and Ms Leonidas also admitted to past dishonesty. By way of example:
a)In Ms Leonidas’s Income Tax Returns for the years 2001 to 2015 she did not at any time declare Mr Wenham to be her de facto spouse despite now claiming that they were in a de facto relationship for a significant part of that period;
b)Ms Leonidas admitted during cross-examination that she had applied for child support against the father of her children and that she was required to disclose whether or not she was in a de facto relationship. Ms Leonidas admitted during cross-examination that she told the Child Support Agency that she was not in a de facto relationship contrary to her assertion in these proceedings;
c)In paragraph 168 of her affidavit filed 23 August 2017 Ms Leonidas asserts that Mr Wenham had been her consultant throughout “our thirteen year relationship” yet admitted during cross-examination that he had ceased to be her consultant in 2011;
d)In her affidavit filed 23 August 2017 Ms Leonidas says that she and Mr Wenham were continuing their de facto relationship in the period between 18 November 2011 and 17 October 2013 yet in an earlier affidavit filed 17 October 2013 Ms Leonidas deposed to final separation being 18 October 2011. In the 2013 affidavit Ms Leonidas even says that she commenced proceedings at that time i.e. on 17 October 2013, because the two year time limitation was imminent;
e)When the matter came before Judge Monahan in the Federal Circuit Court on 4 October 2017 the mother asserted that she and Mr Wenham had lived together the “entire time” which is contrary to the evidence she now gives where she concedes that there were periods where they did not live together;
f)When Ms Leonidas first commenced proceedings on 17 October 2013 seeking the same relief now sought she said in her supporting affidavit that she had been discharged from bankruptcy when she had not;
g)Ms Leonidas did not inform her trustee in bankruptcy that she had commenced proceedings in 2013 and misled the Court as to the date of discharge of her bankruptcy;
h)Ms Leonidas provided a false declaration to her trustee in bankruptcy on 21 October 2010 by misstating her residential address.[10] Ms Leonidas admitted that she had completed the form herself;
i)Ms Leonidas provided a false and misleading declaration to the Australian Taxation Office in the years 2005 to 2009 by misstating her residential address;[11]
j)Despite Ms Leonidas having separated from her husband in 1998 and, as noted above, saying that she resumed the use of her own name from that date, she nevertheless used her married name at times and in circumstances that concealed her true identity e.g. Ms Leonidas entered into a lease in 2003 using her name, Leonidas yet after breaching the terms of that lease she then entered into a new lease in 2006 using her married name;
k)Ms Leonidas negotiated the lease of premises and equipment whilst still a bankrupt. The lessee was a company in which her nineteen year old daughter, Ms Y, was the director but Ms Leonidas owned one hundred percent of the shares. Ms Leonidas subsequently defaulted on the arrangements;
l)Ms Leonidas’s affidavit filed 23 August 2017 says that the negotiations relating to those premises commenced in July 2013 at a time she says she mistakenly believed she had been discharged from bankruptcy. Ms Leonidas admitted during cross-examination that the negotiations had in fact commenced in August 2012, well prior to when she says she thought she had been discharged. I do not accept that Ms Leonidas was mistaken about the date of her bankruptcy discharge;
m)Ms Leonidas admitted during cross-examination that the loan application with the ANZ Bank for the business was made in early 2013, again well prior to the July 2013 date in her affidavit evidence. I do not accept that this was an innocent mistake;
n)The acceptance of an offer for a bank guarantee of $92,000 for the purpose of securing a lease of the business premises dated 24 August 2012 involved Ms Leonidas signing under a false name, namely, Ms Lyadis.[12] I reject Ms Leonidas’s evidence that this was merely a mistake on her part and find that it was more likely than not to be for the purpose of concealing the fact that she was an undischarged bankrupt;
o)In further negotiations involving the business in January 2013, but in particular in relation to the acquisition of equipment, Ms Leonidas used the surname ‘Leonis’ during those negotiations. I reject Ms Leonidas’s evidence that this was merely a shorthand version of her real name and find that it was more likely than not to be for the purpose of concealing the fact that she was an undischarged bankrupt;
p)When Ms Leonidas defaulted on lease repayments for a business in 2013 she composed an email pleading for some leniency in the resolution of the matter. Exhibit 9 sets out in black print those parts that were composed by Ms Leonidas. In the document she states, among other things, “I am a single mother, and have been for 14 years” again contrary to her assertions in these proceedings. I also find that Ms Leonidas used her married name in the email for the purpose of concealing the fact that she was an undischarged bankrupt.
[10] Ms Leonidas was provided a s 128 Evidence Act 1995 (Cth) certificate in relation to this evidence.
[11] Ms Leonidas was provided a s 128 Evidence Act 1995 (Cth) certificate in relation to this evidence.
[12] See exhibit 3.
The consequence of these findings is that I place little, if any, reliance on Ms Leonidas’s evidence. Ms Leonidas has a demonstrated propensity to do and say whatever it takes to achieve an advantage. Her evidence about the nature and extent of her relationship with Mr Wenham was particularly inconsistent and unreliable.
Nature and extent of common residence
Ms Leonidas lived at a number of residences during the period 2002 to 2015. At all times Mr Wenham maintained his own residence, firstly at Suburb B (with his wife and daughter until 2006) and from 2011 at Suburb C (a home formerly owned by Ms Leonidas). Mr Wenham stayed overnight at Ms Leonidas’s various residences but I reject Ms Leonidas’s evidence as to the frequency or duration. On one occasion Mr Wenham moved into Ms Leonidas’s home for a number of weeks in 2011 while he was between homes and on two occasions in 2009 Ms Leonidas moved into Mr Wenham’s home in circumstances of crisis (one of which was the mortgagee taking possession of her Suburb C home) and on each occasion Mr Wenham had the locks changed to exclude Ms Leonidas after she stayed for longer than he had agreed. At an unguarded moment during her cross-examination, Ms Leonidas referred to the Suburb B property as Mr Wenham’s “domain” which is consistent with my finding that it was his rather than their home. Ms Leonidas also refers to her children having to “adjust” to living with Mr Wenham when they moved into his home in 2009. If Mr Wenham had been a part of her household for so many years they would not have had to adjust to living with him. Her attempts to explain the use of that term were unconvincing.
Degree of financial dependence or interdependence, and any arrangements for financial support
I find that there was no financial dependence or interdependence between Ms Leonidas and Mr Wenham.
To the extent Mr Wenham made contributions to the payment of Ms Leonidas’s debts or provided financial assistance he did so in circumstances of crisis or urgency e.g. when the water at one of Ms Leonidas’s homes was about to be cut off; when Ms Leonidas required urgent surgery after a miscarriage; and when Ms Leonidas’s daughter Ms Y was stranded overseas.
I find that there were no arrangements for financial support between them.
Indeed, Ms Leonidas’s evidence was contradictory. On the one hand she complained about Mr Wenham not paying his way and on the other asserted that there was an arrangement for financial support between them. On the occasions Ms Leonidas used Mr Wenham’s credit cards to pay some of her bills including school fees she did so without Mr Wenham’s prior consent. I do not regard Mr Wenham’s acquiescence to that occasional use as an indication of financial dependence or an arrangement for financial support.
The only occasion when Mr Wenham contributed to the household by way of arrangement was for the period of about six weeks in 2011 when he paid $750 per week by way of ‘board and lodging’. I accept that is an apt description for the contribution.
Degree of mutual commitment to a shared life
Ms Leonidas’s own evidence makes it clear that Mr Wenham resisted her many attempts to formalise their relationship despite her many ultimatums that he do so. Mr Wenham remains married to his wife to this day despite their separation many years ago.
I reject Ms Leonidas’s evidence that she and Mr Wenham planned to have children together. Mr Wenham maintains that he did not want to have children with Ms Leonidas and the fact that Ms Leonidas underwent two terminations is more consistent with his evidence, which I accept.
Ms Leonidas did use the surname ‘Wenham’ from time to time but I reject her evidence that it was with Mr Wenham’s consent. I accept Mr Wenham’s evidence that when he discovered that Ms Leonidas was using that name, he told her to stop doing so and said that there was only one Ms Wenham, namely, his wife.
When Mr Wenham bought Ms Leonidas’s home from the mortgagee in possession he did not register it in joint names.
Sadly for Ms Leonidas, while she had a commitment to a shared life with Mr Wenham, her feelings were not reciprocated.
Care and support of children
To the extent that Mr Wenham had any involvement in Ms Leonidas’s children’s lives I find that he filled in as a ‘father figure’ when the children’s father was absent. Her children did not have a good relationship with their father and their father rarely attended activities at which fathers would be expected to attend. Some examples of Mr Wenham ‘filling in’ include Mr Wenham accompanying Ms Y to her Year 4 ‘father and daughter’ dance at her school and attending some sporting events in which the children were involved. Mr Wenham was generally referred to as ‘Mr Wenham’ by Ms Leonidas’s children but sometimes as ‘dad’. He did not take on a parenting role for Ms Leonidas’s children. He did not have a close relationship with them. It was apparent from Ms Y’s oral evidence that she disliked Mr Wenham and had done so since the time she was in about year 4 or 5, namely 2003 or 2004.
Ms Z (Mr Wenham’s daughter) lived with her parents until 2006 and thereafter occasionally stayed overnight at Ms Leonidas’s home with her father. Ms Leonidas did not play a significant role in her life.
Reputation and public aspects of the relationship
Ms Leonidas used Mr Wenham’s surname from time to time but as noted above this was without Mr Wenham’s consent. Ms Leonidas and Mr Wenham had some mutual friends but none of them were witnesses in Ms Leonidas’s case. Ms Leonidas’s ex-husband had little to do with Mr Wenham so his views of the relationship have little relevance.
Mr Wenham’s long-term friends, Dr and Ms D have never met Ms Leonidas (as Ms Leonidas herself confirmed) and his long-term business partner, Mr E has had very few dealings with Ms Leonidas.
conclusion
I have found Ms Leonidas to be a witness of little credibility and where her evidence differed from Mr Wenham’s I have preferred his version. While Ms Leonidas and Mr Wenham did share a residence from time to time it was not with the frequency or duration alleged by Ms Leonidas. They did have a sexual relationship from time to time as might be expected in a close personal relationship. They did not own property together. They did not have joint finances. They did not have any financial dependence or interdependence and did not have any arrangements for financial support between them. To the extent that Mr Wenham did provide financial assistance it occurred in circumstances of crisis. Sadly for Ms Leonidas, Mr Wenham would never commit to the relationship which was a recurring source of irritation and hurt for Ms Leonidas. Neither Ms Leonidas nor Mr Wenham stood in the position of step-parent to the other’s children. Any reputational aspects of their relationship were created by Ms Leonidas unilaterally.
Accordingly, I have come to the conclusion that Ms Leonidas has failed to prove the elements of a relationship with ‘sufficient colour and significance’ to create a ‘composite picture’ that she and Mr Wenham had a relationship as a couple living together on a genuine domestic basis.[13]
[13] Sinclair & Whittaker (2013) FLC 93-551, [94]; Lynam v Director-General of Social Security (1983) 52 ALR 128, [131] (Fitzgerald J).
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 13 July 2018.
Associate:
Date: 13 July 2018
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