Locke and Norton

[2014] FamCA 811

FAMILY COURT OF AUSTRALIA

LOCKE & NORTON [2014] FamCA 811

FAMILY LAW – DE FACTO RELATIONSHIP – Application for a declaration regarding the existence of a de facto relationship – Where the respondent denies that there was ever any de facto relationship – Where the respondent is a man of considerable wealth and provided financial support to the applicant – Consideration of the circumstances set out in s 4AA(2) of the Family Law Act 1975 (Cth) – Where no property was jointly owned by the parties – Where it is found that the parties did not have a common residence – Where it is found that there was no mutual commitment to a shared life – Application seeking declaration of a de facto relationship dismissed.

Evidence Act 1995 (Cth) s 128
Family Law Act 1975 (Cth), ss 4AA, 90RB, 90RD
Relationships Register Act 2010 (NSW) s 5

Norton & Locke [2013] FamCAFC 202

APPLICANT: Ms Locke

RESPONDENT: Mr Norton

FILE NUMBER: SYC 2828 of 2013

DATE DELIVERED: 24 September 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 1, 2, 3, 4 and 5 September 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr White SC

SOLICITOR FOR THE APPLICANT: Michael Conley Lawyers

COUNSEL FOR THE RESPONDENT: Mr Kirk QC with Ms Bridger

SOLICITOR FOR THE RESPONDENT: Barraket Stanton Lawyers

Orders

IT IS ORDERED

1. That the application seeking a declaration that the parties were in a de facto relationship is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Locke & Norton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2828  of 2013

Ms Locke

Applicant

And

Mr Norton

Respondent

REASONS FOR JUDGMENT

1. Ms Locke (“the applicant”) and Mr Norton (“the respondent”) were in a relationship from about late 2007 or early 2008 until 2012. The applicant says that the relationship was a de facto relationship. The respondent says it was not.

2. The nature of the relationship is the only issue for determination. It is not suggested by either party that the relationship changed in character during its currency. If the relationship was a de facto relationship, then the de facto relationship was on foot on and after 1 March 2009.

the relevant legislation

1. The Family Law Act 1975 (Cth) (“the Act”) gives the Family Court of Australia jurisdiction to hear and determine property settlement proceedings between de facto couples provided that the relationship between the couple broke down on or after 1 March 2009. If the relationship ended before 1 March 2009 the Court has no jurisdiction to hear and determine an application for division of property.

2. It is common ground that the Court has power to determine whether a de facto relationship existed at a relevant time.

3. If there was no de facto relationship, then the applicant has no claim pursuant to the Act.

4. Section 4AA of the Act sets out the factors to be considered when the Court determines whether or not parties live in a de facto relationship. This section is relevantly set out below:

   Meaning of de facto relationship

   4AA(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

   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.

   4AA(3)No particular finding in relation to any circumstances is to be regarded as necessary in deciding whether the persons have a de facto relationship.

   4AA(4)A court determining whether a de facto relationship exists is entitled to have a 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.

   4AA(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.

5. In considering whether the parties to these proceedings, having regard to all the circumstances of their relationship, have had, at any particular time, a relationship as a couple living together on a genuine domestic basis, it is necessary to consider the evidence which relates to each of the relevant subparagraphs of s 4AA(2) of the Act.

6. The matters set out in s 4AA(2) are not exhaustive or exclusive. The section reads, “Those circumstances may include any or all of the following” and therefore, in a particular case, other factors may be relevant and considered.

THE EVIDENCE

1. Each party relied on numerous affidavits from friends and family members, all of whom were cross-examined.

2. Each of the parties swore affidavits. In the applicant’s case she relied on two affidavits sworn by her and three earlier affidavits were tendered by the respondent. Two of the deponents of affidavits that were sought to be relied upon in the applicant’s case were not available for cross-examination and those affidavits were, as a consequence, not relied upon.

3. The cross-examination of the applicant highlighted both inconsistencies between the versions of events given by the applicant in her various affidavits and errors of fact. Some but not all of those errors and inconsistencies are referred to in these reasons.

4. Much of the evidence of both of the parties related to private conversations between them when no one else was present. In coming to a conclusion about those conversations, it is necessary to determine whether to accept the evidence of the applicant or the evidence of the respondent.

5. If it is not possible to determine, by objective evidence, which version of events should be accepted, then it is necessary to bear in mind that the onus of proving her case rests upon the applicant. If it is not possible to determine which is the more probable version of events, then the applicant has not discharged that onus.

6. In considering the evidence of the applicant, it is not possible to disregard her evidence about her receipt of Centrelink benefits (“Newstart”) during the time when, she contends, she was in a de facto relationship with the respondent.

7. It is an agreed fact that the respondent is a person of considerable wealth.

8. The applicant applied for and received Newstart in 2009. She applied for this allowance again in 2010 and received benefits from 2010. She continues to receive a Newstart allowance.

9. The applicant asked for, and was granted, a Certificate pursuant to s 128 of the Evidence Act 1995 (Cth) in relation to her evidence relating to her application for, and receipt of, Newstart benefits.

10. The applicant, in cross-examination, was shown the Newstart application form and agreed that this was the form she had completed on each occasion. In answer to the question “Do you have a partner?” she had answered “no” on each occasion. The definition of partner appears on the form immediately below the question, and above the space for the answer, and includes a de facto partner.

11. It must follow from the fact that the applicant asserted, on the Newstart application form, that she had no partner, that she did not declare to Centrelink that the respondent provided her with an allowance and either paid her rent (in 2009) or allowed her to live rent free in an apartment owned by him.

12. The applicant, on two occasions, also signed the declaration stating that “I understand that…giving false or misleading information is a serious offence.”

13. She agreed with the proposition that in completing the application and signing the declaration as she did, on two occasions, she had lied in order to obtain a financial benefit.

14. For that reason, where, in relation to a fact in issue, there is no other evidence than that of the parties, the evidence of the respondent will be preferred over the evidence of the applicant.

FACTUAL BACKGROUND

1. The applicant, at the time the parties met, was living with Mr F. She left Mr F in August 2007. The sexual relationship between the parties had commenced some months earlier.

2. The applicant has an adult daughter, Ms R. Ms R and her partner have three young children.

3. The respondent, at the time the parties met, had been separated for some years from his second wife but they have not divorced. At all times the applicant was aware that the respondent was still married.

4. The respondent has two adult children, Mr N and Ms H. Mr N lives overseas and has done so since 2010. Ms H is married and has two children.

5. At all relevant times, the respondent has lived in an apartment at X Street, Suburb D (“X Street”).

6. The respondent is a person of significant wealth.

7. When the applicant left the relationship with Mr F, she moved into a serviced apartment in Y Street, Suburb D (“Y Street”).

8. In early 2008 the applicant moved into a rented apartment in B Street, Suburb D (“B Street”). The respondent paid the applicant’s rent and thereafter gave her an allowance of $2,000 per month. He also gave her other amounts of money and, in October 2009, he bought her a second hand car after her own vehicle was repossessed in 2008.

9. In November 2010, the respondent purchased Unit 3, Z Street (“Unit 3”). The applicant moved into Unit 3 upon completion of the purchase.

10. In January 2011 the applicant purchased Unit 2, Z Street(“Property D”). Property D was renovated and the applicant moved into it.

11. The relationship between the parties ceased in November 2012 at the instigation of the respondent.

12. It falls to the applicant to establish, on the balance of probabilities, that the relationship between the parties was a de facto relationship, that is, having regard to all the circumstances of their relationship, they had a relationship as a couple living together on a genuine domestic basis.

THE DURATION OF THE RELATIONSHIP

1. The parties met in 2007. At that time the applicant was in a relationship with Mr F. The respondent was separated from, but still married to, his second wife.

2. In August 2007 the applicant separated from Mr F. and moved into Y Street.

3. The parties agree that their sexual relationship commenced before the applicant had moved out of the residence she shared with Mr F.

4. It is the applicant’s case that their de facto relationship commenced, at least, from the time she moved into B Street in early 2008.

5. From that time, until November 2012, the parties agree that they had a relationship which included a sexual and social relationship.

6. The parties agree that the nature of that relationship did not change.

7. On 7 November 2012 the respondent told the applicant that the relationship was over. It is agreed that the relationship ended on that date.

8. In the overall consideration of all of the relevant circumstances, this circumstance is neutral.

THE NATURE AND EXTENT OF THEIR COMMON RESIDENCE

1. It is the nature of the relationship which is relevant to the determination here, rather than any quantification of the time the parties actually spent together.

2. It is settled law that parties can be in a de facto relationship even though they do not live together in the same residence at all times.

3. At all times during the relationship, the applicant had her own residence.

4. At all times during the relationship, the respondent had his own residence.

5. The extent to which the applicant shared the respondent’s residence is in issue. It is not asserted that the respondent shared the applicant’s residence.

6. The applicant gave evidence that, at least from the time she moved into B Street, she stayed at the respondent’s apartment in X Street on each weekend when he was at home in Sydney from Friday night until Monday morning.

7. The respondent agreed. However, he gave evidence that the applicant would leave his apartment on Saturday and Sunday mornings and return later in the day. While there may have been occasions when the applicant did not stay in the respondent’s apartment for the whole of Saturday and Sunday, it is inherently unlikely that, if she slept there on Friday, Saturday and Sunday nights, she did not spend substantial periods of time there during the day at weekends.

8. The applicant gave evidence that she also stayed at the respondent’s apartment if they went out during the week. The respondent agreed. It was his evidence that the applicant probably stayed at his apartment on one week night on the weeks when he was in Sydney.

9. The applicant estimated that she stayed at the respondent’s apartment on four or five nights each week. The respondent estimated that she stayed on an average of three nights each week.

10. It is likely that each party has exaggerated and that the reality might be somewhere in the middle. However, it can comfortably be assumed that the applicant stayed at the respondent’s apartment at least three nights in each week that he was in Sydney.

11. That distinction is significant because the respondent travelled extensively.

12. The parties together did not entertain the applicant’s friends at X Street. The applicant’s closest friend, Ms O, was not invited to X Street while the respondent was there.

13. The applicant gave evidence that on the weekends when she stayed at X Street, she acted as the respondent’s hostess when he entertained his friends and family. She said that she shopped, cooked, served the food and cleaned up afterwards although she did not suggest that she was the only person who performed these tasks.

14. That evidence was contradicted by the respondent, his friends and his children.

15. The respondent gave evidence that he enjoys cooking and that he was responsible for almost all of the cooking when friends were entertained. The style of entertainment was casual. The respondent said that the applicant did not assist with the preparation or provide much help with clearing up.

16. The respondent’s children both said that, when they were present, their father did the cooking and they did most of the clearing up.

17. Three of the respondent’s friends gave evidence of being present on social occasions at X Street.

18. Mr P, who was present at X Street on a number of occasions at dinner when the applicant was there, recalled that the applicant rarely helped with clearing up or washing up.

19. Mr V said that when he visited X Street for a meal, he would spend much of his time in the kitchen because that was where the respondent was.

20. Mr W said that, when he attended X Street for a meal, the respondent always seemed to be in the kitchen and that the applicant would be having drinks on the balcony.

21. I accept the evidence of the respondent and his witnesses that the applicant did not act as hostess at X Street or play a significant part in his entertaining, other than as a guest.

22. The applicant gave evidence that she kept clothing, toiletries and accessories at X Street. The respondent denied that she did so.

23. The applicant said that she left clothes in a bedside cupboard and in a wardrobe in a spare room and that she left toiletries in a cupboard in the en suite bathroom. The applicant did not suggest that the respondent knew that she kept those things at X Street. No doubt, as the applicant regularly spent periods of three days at X Street, she left things there. However I accept the evidence of the respondent that he was not aware that she did.

24. Both Mr E, who is a close friend of the respondent, and Mr N, the respondent’s son, said that they had not seen the applicant’s belongings at X Street but each conceded that they had not looked in cupboards.

25. The applicant gave evidence that during a holiday overseas, she and the respondent had sketches done of each of them by a street artist. She said that the sketches were displayed in the living room at X Street. Ms R also said that she saw the sketches at X Street.

26. The respondent gave evidence that the applicant had the sketches framed and that they were kept at X Street in a spare room. The respondent’s evidence was that the applicant would move the sketches into the living room and he would remove them.

27. Ms R does not assert that the respondent was present, or in the apartment, when she saw the sketches in the living room. Her evidence is consistent with the respondent’s assertion that the sketches were not kept in the living room when he was at home. I accept the evidence of the respondent.

28. Ms R said that the applicant had said to her in relation to the sketches “(the respondent) had those sketches done when we were [overseas] together”. If the applicant said that, it is contrary to the unchallenged evidence of the respondent and of the others who were present at the time. The applicant in her own evidence said that she saw the artist and  said words to the effect of “let’s have a picture done” and the respondent agreed.

29. The applicant gave evidence that she had a set of keys to X Street and used them freely to gain access to the apartment when the respondent was away on his travels. She did not assert that she used her set of keys to gain access to X Street when the respondent was in Sydney.

30. The respond denied that the applicant ever had her own set of keys although he said that he gave her his “walking set” from time to time when he wanted her to meet a tradesman or do some other job for him at the apartment. The respondent also said that when the applicant borrowed one of his cars, as she did in 2008 after her own car was repossessed and before he bought her a car in October 2009, there would be a set of apartment keys on the car keys.

31. The respondent agreed that he gave the applicant a remote control to open the garage at X Street but explained that a key to the lift was needed to travel from the garage to the apartment.

32. The issue of whether the applicant had her own keys to X Street is relevant to whether it could be considered as a common residence.

33. Although the applicant in her trial affidavit sworn 30 March 2014 (“trial affidavit”) asserted that she, at all times, had her own set of keys to X Street, that was not always her evidence.

34. In an earlier affidavit sworn 1 August 2013 the applicant said, of the times when she borrowed the respondent’s car:

    I regularly took (the respondent’s) car to my daughter’s house and come (sic) back and parked it in his garage. (The respondent) gave me a set of keys to his house and garage, while I no longer have a key to (the respondent’s) apartment I continue to retain, but not use, a pass to the garage at (the respondent’s) home (sic) This enabled me to park his car in the garage whenever I used it and to go up to his apartment. I do not retain a key to the apartment as it was my practice to leave the key in (the respondent’s) apartment each time I left…”

35. The respondent’s daughter Ms H deposed to a conversation with the applicant, after the relationship was over, when the applicant said :

    I don’t have any of his keys or anything like that. He’s asked me for the control that opens the garage door, but I never had any keys or anything to get into his apartment.

36. Ms H’s evidence was vigorously challenged but she did not resile from it. Mr E, who is a close friend of the respondent, had a set of keys to X Street while the parties were in a relationship. The respondent told Mr E that only the respondent’s personal assistant and Mr E had keys. Mr E asked the respondent if the applicant had keys and the respondent replied “You have to be kidding”. That evidence was not challenged.

1. Mr E was called to X Street  by security on many occasions when the respondent was not in Sydney to respond to the alarm. He estimated that between 2007 and 2012, he had been called to X Street on between eight and twelve occasions.

2. It is difficult to understand why Mr E would have to be inconvenienced to attend to the alarm if the applicant had keys and ready access to X Street.

3. The more likely scenario is, as deposed by the respondent, Ms H and Mr E, that the applicant did not have keys except at specific times when the respondent gave them to her for a particular purpose.

4. The respondent allowed the applicant to hold a baby shower for Ms R at X Street. He gave her keys for that purpose.

5. On other occasions, the applicant entertained her friends at X Street. The respondent gave evidence that he was not aware of her doing so. He said that with the exception of the baby shower, the applicant did not seek his permission to entertain her friends at X Street and that he did not know how she had keys to do so.

6. The applicant relies on photographs of members of her family taken in 2009 at X Street as evidence that she had her own keys. However I bear in mind that in 2009, until October, the applicant regularly borrowed the respondent’s car and thereby had access to the keys for X Street which were attached to the respondent’s car keys.

7. Ms S, the applicant’s friend, deposes to being with the applicant at X Street when the respondent was travelling and telephoned. However she does not say that the applicant took the call on the land line or that the applicant told the respondent that she was entertaining at X Street.

8. Whether the respondent allowed the applicant to entertain her friends at X Street when he was travelling is a matter which only the two of them can say. Where there is no other evidence but what they each says, I accept the evidence of the respondent.

9. Whether the applicant considered X Street to be their common residence can also be gleaned from the way that the applicant and her witnesses referred to it.

10. The applicant, in conversation with Ms Q, referred to X Street as “[Mr Norton’s] place” or “his apartment” and to Unit 3 and Unit 2 as “my apartment” or “our apartment”.

11. In conversation with Ms R, the applicant said she had been staying “at [Mr Norton’s] house”. She referred to having dinner “at his house” and told Ms R that she liked to buy things for “[Mr Norton’s] house”. Ms R referred to visiting her mother at “[Mr Norton’s] place”.

12. In conversation with Ms O, the applicant spoke about cooking “at [Mr Norton’s]”.

13. Ms U, a friend of the applicant, in her affidavit refers to the applicant being “at [Mr Norton’s] unit”.

14. There is no evidence that the applicant, at any time, referred to X Street as “our” place.

15. In contrast, in conversation with her friends, she referred to Unit 3 and D Property as her home.

16. At the time of the purchase of Unit 3, the applicant told Ms R that it was her dream home.

17. Ms R in her affidavit says :

    I have been to my mother’s home regularly including the [B Street, Suburb D] apartment, Apartmten (sic) [Unit 3 Z Street] and most recently [Property D].

18. Ms U deposes to the applicant saying to her that the respondent told her “[Property D] is your home”.

19. Ms U referred to Property D as “her home” meaning the applicant’s home, and “her apartment”.

20. Having regard to the fact that the applicant did not regard X Street as her home, that she did not have her own keys, that she did not (with the exception of the baby shower) have the respondent’s permission to use the property to entertain her friends, and that she did not jointly host social occasions for the respondent’s friends, I cannot find that the applicant and the respondent had a common residence at X Street.

WHETHER A SEXUAL RELATIONSHIP EXISTS

1. Both parties agree that there was a sexual relationship between them during the period of the relationship.

2. The respondent gave evidence that the relationship was not exclusive and that he had sexual relations with other women during the currency of his relationship with the applicant. However, it is not disputed that the sexual relationship with the respondent continued over the period.

3. In the overall consideration of the circumstances of this case, this circumstance is neutral.

THE DEGREE OF FINANCIAL DEPENDENCE OR INTERDEPENDENCE, AND ANY ARRANGEMENTS FOR FINANCIAL SUPPORT, BETWEEN THEM

1. It is an agreed fact that the respondent is a person of considerable wealth.

2. It is not asserted that there was any financial interdependence between the parties.

3. The applicant’s case is that she was financially dependent on the respondent. In an affidavit sworn 23 May 2013, the applicant said “I have been financially entirely dependent on (the respondent) for the past six years”.

4. Objectively, the respondent paid the applicant’s rent or provided accommodation and gave her $2,000 per month. That was not an amount sufficient for her to live on but was a contribution to her expenses. He did not provide a level of support that was consistent with his being her sole source of support.  

5. The applicant’s evidence in relation to her financial affairs was not so straightforward.

6. From 2006 until early in 2008 the applicant was employed as a Manager for LL Company. She earned about $60,000 per annum.

7. She applied for and received the Newstart allowance after leaving LL Company and remained on the allowance until commencing employment in October 2009. The applicant did not tell the respondent that she had applied for and was receiving the Newstart allowance.

8. From October 2009 until May 2010 the applicant held a position at an interior design business and she resumed that employment from October 2010 until April 2011.

9. When the parties met, the applicant owned two properties. She and Mr F lived in one of them at Suburb G. In September 2008 the applicant’s property at Suburb T was sold. After discharge of the encumbrances, the applicant received no surplus.

10. Mr F remained in the G property for some time after they separated but made no contribution to the mortgage. In October 2009 the G property was sold by mortgagee sale. In her trial affidavit the applicant said that she received nothing from the sale.

11. In 2008 the applicant’s car was repossessed.

12. In cross-examination the applicant said that at the time she separated from Mr F, she had credit card debts of about $100,000 and was under pressure from her bank. In her trial affidavit she said that she received nothing from the sales of the two properties. She agreed that she was close to bankruptcy at that time.

13. In her affidavit in reply sworn 18 July 2014 the applicant said that she received about $20,000 from the sale of the T property. That evidence contradicts her earlier affidavit evidence and her oral evidence in cross-examination and I do not accept it.

14. In 2008 the applicant moved into B Street. The respondent says that the applicant was not working and had no income at this time. The respondent offered to give the applicant money to pay her rent and an additional $2,000 per month to live on.

15. The parties disagree on the terms of the arrangement. The applicant says that the respondent did not want her to work and promised to look after her. The respondent says he offered to support the applicant until she found another job.

16. The applicant deposes to conversations with the respondent where he promised that she would be wealthy when he dies; that he would always look after her; that she never had to work; and that he would also look after her daughter Ms R.

17. The respondent denies that those conversations took place.

18. The objective evidence in relation to this issue is that the respondent continued to provide an allowance to the applicant until May 2013 and either paid her rent or allowed her to live in an apartment he owned until July 2013, some eight months after the relationship came to an end. He did not cease to provide for the applicant until she commenced proceedings under the Act.

19. There is no evidence that the respondent ever made a testamentary provision for the applicant. I accept his evidence that he never promised to do so.

20. There is no evidence of the respondent ever making provision for Ms R. I accept his evidence that he never promised to do so.

21. The payment by the respondent to the applicant of $2,000 per month was not a sufficient sum to support the applicant. She gave evidence that she needed to apply for the Newstart allowance because she needed more money. She did not ask the respondent for more. The respondent’s payment of $2,000 per month, and the fact that, although she needed more money she did not ask him to provide it, is not consistent with the applicant’s evidence that the respondent said to her that he was a wealthy man and that she never needed to work.

22. I accept the respondent’s evidence that he did not make that promise to the applicant.

23. The respondent gave evidence that over the period of the relationship he constantly urged the applicant to seek employment. He continued to pay her an allowance and allowed her to live in the apartments he owned, even in periods when she was working. In cross-examination, he said that he did so because the applicant had told him that she was still in debt and continued to need his assistance. There is no extrinsic evidence to suggest which version of those conversations and events is more probable to have occurred. This is an issue where the only evidence is that of the two parties to private conversations. Therefore I accept the evidence of the respondent that he continued to pay the applicant an allowance because she had represented to him, and he had accepted, that she continued to need his support.

24. The respondent continued to give the applicant $2,000 per month until May 2013 when the applicant commenced these proceedings.

25. On 24 November 2010, the applicant moved into Unit 3. The respondent paid the outgoings on Unit 3 and allowed the applicant to live there and not pay rent. The respondent said that since he was paying the applicant’s rent in any event, he told her “you might as well move into [3]. When you get a job you can start paying rent”.

26. On 28 January 2011 the respondent purchased Property D, which was another apartment in the same building as Unit 3. Property D was renovated upon completion of the purchase. The respondent supervised the renovations. The applicant arranged for a friend of hers to draw up plans, obtained quotes and liaised with the body corporate. The respondent engaged the builder. The whole of the cost of the renovations was paid by the respondent. The respondent says that he told the applicant that she did not have a free hand but was expected to consult with him and seek his approval.

27. When the renovations to Property D were complete, the applicant moved in.

28. The respondent paid the outgoings on Property D and the applicant did not pay rent.

29. The respondent also paid for plastic surgery, specifically a breast enlargement, for the applicant.

30. There was no suggestion that the amount of financial support provided for the applicant by the respondent was in a sum that was significant to him. He was able to purchase Unit 3 and Property D from existing funds, either of his own or of one of his corporate entities. He was a wealthy man.  

31. There is no evidence that the applicant used any of her earnings, when she was in employment, towards any of their joint endeavours. In circumstances where, as I have accepted, the applicant had represented to the respondent that she needed his financial assistance, this would in any event have been unlikely.

32. There was no “financial interdependence” between the parties.

33. The respondent provided financial support for the applicant in circumstances where to do so caused him no hardship.

34. On the applicant’s evidence, the respondent provided support to her during a period when she was sexually and socially available to him on a monogamous basis.

35. In the overall consideration of the circumstances, this consideration is neutral.

THE OWNERSHIP, USE AND ACQUISITION OF THEIR PROPERTY

1. No property was jointly acquired by the parties.

2. Property that was relevantly acquired by the respondent, being the two units and the car that was used by the applicant, was used by the applicant only and not by the parties together.

3. The issue of the extent of the applicant’s use of the respondent’s apartment has been dealt with earlier in these reasons.

4. There is no evidence of a single item of property which was regarded by the parties as being “theirs”.  

5. The absence of jointly owned property does not assist the applicant’s case.

THE DEGREE OF MUTUAL COMMITMENT TO A SHARED LIFE

1. The respondent relies on the absence of mutual commitment.

2. The applicant’s evidence is that the respondent asked her to live with him. The applicant does not assert that any other person was present when that conversation took place.

3. The respondent denied that he ever asked the applicant to live with him.

4. The respondent’s evidence is that he said to the applicant, on numerous occasions, that he had been married twice and that he had no intention of either living with anyone or marrying again.

5. The respondent made similar statements to Mr P, Mr V, Mrs W and Mr W.

6. The applicant had a conversation with Mrs W ( a friend of the respondent) in 2008 where the applicant (referring to the respondent) said that she was sure they will end up together and Mrs W replied “I do know that (the respondent) is not in a hurry to get married again or have a permanent relationship”.

7. In conversations with Mr E about the nature of his relationship with the applicant, the respondent said the relationship was “Arrive Friday leave Monday” and “She’s a friend and nothing more. I have no intention of ever living with anyone again”.

8. The respondent’s daughter, Ms H, gave evidence of a conversation with the applicant after the relationship had ended where the applicant said to her “I did not want to push him into us living together because I knew he would run the other way” and “I never hassled him about getting married or living together because I knew he would run” That evidence was not challenged and is consistent with the respondent’s evidence that he told the applicant that he had no intention of living with her.

9. The applicant herself, in an affidavit sworn 12 July 2013, deposes to a conversation with the respondent at the time of the purchase of Property D in about January 2011, where he said to her:

   …remember the apartment you loved? It’s still available so I’ve bought it for you so you can make it into your home. You can’t live with me as I’ve been through two separations and paid too much to my ex-wives. I’ll buy this apartment for you to live in.

10. She says that he also said to her, in relation to Property D:

    I want you to be happy, it’s your home. Renovate it and I will pay for the costs.

11. In her trial affidavit, the applicant deposed that before she moved into B Street the respondent said to her:

    I want you to be in a more permanent home, let’s find somewhere for you to rent nearer to me.

12. In cross-examination, Senior Counsel for the respondent put to the applicant that in 2008 the respondent said to her that they would never live together and that he had no intention of getting married or living with anyone. The applicant denied that the respondent had said that to her. It was put to the applicant that a similar conversation had occurred several times and she denied that suggestion. Having regard to the applicant’s own affidavit evidence, I reject her denial.

13. I accept the respondent’s evidence that he did not ask the applicant to live with him and that, at all relevant times, he had determined that he would not live with the applicant and told her so.

14. The applicant’s commitment to a shared life requires examination.

15. In her trial affidavit the applicant makes numerous statements that the respondent said to her such things as “you are my partner now”; “when I travel you will always travel with me”; and “I want you to be with me always”. Objectively, the evidence is that the respondent travelled extensively without the applicant. As to the other statements, which are denied by the respondent, there being no objective evidence, I accept the evidence of the respondent.

16. In an affidavit in reply sworn 18 July 2014, for the first time (this being the fifth affidavit she had sworn in the proceedings) the applicant records that the respondent suggested that she move in with him and that she replied “I will only move in with you when we get married”. In cross-examination she was adamant that her position throughout the relationship was that she would not live with the respondent unless they married. When it was put to the applicant that this affidavit was the first mention of that position her response was that she may have overlooked it.

17. In her trial affidavit the applicant deposes to a conversation where the respondent asked her to move in with him in July 2007 and she says “At the time I decided not to move in to (the respondent’s) place because I wanted to be certain of our relationship...”

18. The applicant’s friends, Ms U and Ms O, gave evidence that the applicant had told them that she would not live with the respondent unless they were married.

19. In cross-examination the applicant said that she did not want to take the respondent to her annual family reunion until they were married.

20. Ms R gave evidence that the applicant said to her that in the future she hoped that she and the respondent would live together. The applicant did not say to her daughter that they would only live together if they were married.

21. When the applicant was asked in cross-examination whether she had ever suggested to the respondent that they could live together without being married, she said that no such suggestion had been made by her.

22. The respondent made a commitment to an arrangement whereby he and the applicant enjoyed a sexual and social relationship and he financially supported her.

23. The applicant had a commitment to a life where she and the respondent would eventually live together once they were married.

24. There was no mutual commitment between the parties. Each party was committed to a different relationship.

WHETHER THE RELATIONSHIP WAS REGISTERED

1. There was no provision for the registration of a de facto relationship in New South Wales until the Relationships Register Act 2010 (NSW) came into effect on 1 July 2010.

2. Section 5 of that Act sets out the criteria for registration in the following terms:

   5 Eligibility for registration

   (1) Two adults who are in a relationship as a couple, regardless of their sex, may apply to the Registrar for registration of their relationship.

   (2) A relationship cannot be registered unless at least one of the adults resides in New South Wales.

   (3) A relationship cannot be registered if:

   (a) either adult is married, or

   (b) either adult is registered under this Act or a corresponding law as being in a registered relationship or an interstate registered relationship, or

   (c) either adult is in a relationship as a couple with another person, or

   (d) the adults are related by family.

3. Since, at all relevant times, the respondent was married to another person, the relationship could not have been registered pursuant to the provisions of the Relationships Register Act.

THE CARE AND SUPPORT OF CHILDREN

1. Section 90RB of the Act provides that :

   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.

2. The Full Court, hearing an appeal in this matter in relation to an interlocutory matter, commented:

   there are no children of the relationship, nor is it contended that either party otherwise has a child relevant to the proceedings.

3. The applicant and the respondent each had adult children from previous relationships. They had no children of their relationship. This consideration therefore does not arise.

4. The nature of the relationship of the applicant and the respondent with the adult children of each of them can be considered in the context of the consideration of the reputation and public aspects of the relationship.

THE REPUTATION AND PUBLIC ASPECTS OF THE RELATIONSHIP

1. The applicant and the respondent had quite different perceptions of the public reputation of their relationship.

2. The applicant saw herself as the “partner” of the respondent. The respondent regarded her as his girlfriend.  

3. A number of the applicant’s friends swore affidavits and were cross examined. Ms Q, a friend of the applicant who knew the respondent well, in cross-examination, agreed that the statement in her affidavit that the respondent, on a number of occasions, had introduced the applicant as his “partner” was incorrect. In her oral evidence she said that the respondent had never used that term. She said that the respondent introduced the applicant by her given name only.

4. Ms U, in her affidavit, said that from the time the applicant started having the relationship with the respondent, the applicant said that he introduced her as his girlfriend.

5. Ms S, in her affidavit, gave evidence that the applicant referred to the respondent as her partner. However, although she had socialised with the parties together, she did not say that the respondent referred to the applicant as his partner.

6. Mr M had dined with the parties on the occasion of the applicant’s 49^th birthday but he does not say that the respondent referred to the applicant as his partner.

7. The applicant’s daughter, Ms R, does not suggest that the respondent ever referred to the applicant as his partner.

8. The applicant referred to the respondent as her partner in two emails to prospective suppliers of furniture. It is not suggested that the respondent was aware that she had done so.

9. The applicant completed an application form for a supplementary credit card in which she referred to herself as the respondent’s partner. The respondent signed the form but said that he did not notice that the word partner was used.

10. The respondent, in cross-examination, said that “partner” was not a term that he had ever used in connection with the applicant and that he had never referred to her or introduced her to his friends in that way.

11. Friends of the respondent swore affidavits and were cross-examined.

12. Mr P, Mr V, Mr J, Mr K and Mr E gave evidence that the respondent introduced the applicant by her given name only.

13. Their evidence is consistent with the evidence of Ms Q.

14. I do not accept the respondent referred to the applicant as his partner.

15. However, there is no doubt that both the applicant’s and the respondent’s friends who gave evidence were aware that the parties were in a relationship.

16. The applicant’s friends had a view of the relationship as permanent and committed because that is what the applicant told them.

17. The respondent’s friends viewed the applicant as his girlfriend because that is what he told them.

18. There is no doubt that the applicant had accompanied the respondent to social functions but she was not his exclusive companion at those functions. The respondent also attended other functions alone. When invited to the homes of his friends or out to dinner with them, he sometimes took the applicant and sometimes went alone. On some occasions when friends enquired of the applicant’s whereabouts he told them “she’s on the bench”, which is a football term meaning that the applicant was not playing or, as one friend described it “on the outer”.

19. The applicant spent three of the five Christmases they were together with the respondent at the home of the respondent’s friend Mr J. The respondent had been invited to attend and to bring a guest. He brought the applicant. No direct invitation was extended by Mr J to the applicant. I do not accept the applicant’s evidence that they spent every Christmas together. The respondent spent every Christmas at the home of Mr J. I note that the applicant deposed in her trial affidavit to spending Christmas at the home of Mr JJ. In cross-examination she conceded that the name of the host was Mr J. (I note that there were a number of instances in her trial affidavit where the applicant was mistaken about the names of the respondent’s friends).

20. Although the applicant deposed in her trial affidavit that the respondent gave her money to buy Christmas presents for his children from both of them, she conceded in cross-examination that this was incorrect and that the respondent gave his children money at Christmas.

21. The parties travelled together overseas at the expense of the respondent. The respondent also travelled overseas alone.

22. The applicant was first introduced to Ms H at the respondent’s birthday dinner in March 2008. In her trial affidavit the applicant deposed to meeting Ms H in mid to late 2007 but she resiled from that evidence in cross-examination.

23. Subsequently, they saw each other when Ms H went to her father’s home on occasions for a meal. The applicant was not always present on those occasions.

24. Ms H and the applicant met for coffee occasionally.

25. The applicant went to Ms H’s wedding at Ms H’s invitation. Ms H enlisted the applicant’s help in negotiations with her father about the wedding dress. In her oral evidence Ms H said that she liked the applicant and wanted her to be there. Ms H also invited the respondent’s second wife.

26. In July 2012 Ms H was taken to hospital in an emergency. The respondent was overseas and Ms H’s mother was on jury duty and not available to help. While she was at the hospital she received a telephone call from the applicant. When the applicant learned that Ms H was in hospital she came to the hospital and cared for Ms H’s little boy so that Ms H’s husband could remain with her at the hospital. Ms H was grateful for the applicant’s assistance on that occasion.

27. Ms H never went to the applicant’s apartment.

28. In her oral evidence Ms H said that she spent more time with the applicant after the relationship ended than when it was on foot as she could see that the applicant was distressed at the time and she felt sorry for her.

29. The applicant also resiled from her evidence that she met Mr N in mid to late 2007 and agreed that she also met him in March 2008.

30. Although the applicant asserted that she had a close relationship with Mr N, it was his evidence that he did not form any relationship with her.

31. Mr N was cross examined about this issue. His evidence was not shaken. Having regard to my consideration of the applicant’s credit in relation to her applications for the Newstart allowance, and in the absence of objective evidence, I prefer Mr N’s evidence to that of the applicant.

32. Mr N returned to Sydney four times since moving to live overseas in 2010. He therefore had little opportunity, since 2010, of observing the relationship between the parties. It was his evidence that when he spent time with his father and his sister during his visits, the applicant was rarely there.

33. It was his unchallenged evidence that, until the proceedings were commenced, he did not know the applicant’s surname.

34. In so far as the parties made representations about their relationship to public authorities, it will be recalled that on two occasions the applicant told Centrelink that she was not in a de facto relationship.

35. When the respondent travelled overseas, he gave the name of his second wife as his next of kin on his passenger information cards. He did this even for the trips where the applicant accompanied him. On one occasion the applicant gave the respondent’s name, but only after asking for his permission to do so which, she said, he granted, as they were travelling together.

36. Overall, the public nature of the relationship, except as related to the applicant’s friends by her, was that the applicant was the respondent’s girlfriend.

CONCLUSION

1. Having considered all of the matters referred to in section 4AA(2) of the Act, I find that the applicant has not established, on the balance of probabilities, that the parties’ relationship was a de facto relationship.

2. Accordingly, the application seeking a declaration that the parties were in a de facto relationship will be dismissed.

I certify that the preceding two hundred and nine (209) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 24 September 2014.

Associate: 

Date:  24 September 2014