LORRY & MUSK

[2015] FCCA 1773

FEDERAL CIRCUIT COURT OF AUSTRALIA

LORRY & MUSK [2015] FCCA 1773

Catchwords:
FAMILY LAW – De facto relationship – where applicant seeks a declaration that a de facto relationship existed – where the parties had a relationship of some nature for a period of 10 years – consideration of evidence as to the nature of that relationship – general preference of the evidence relied upon by the applicant to that of the respondent – application of the evidence to the necessary factors to consider – determination that a de facto relationship did exist.

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

Briginshaw & Briginshaw (1938) 60 CLR 336
Jonah & White (2011) 45 FLR 460; 2012 FLC 93-522
Moby & Schulter [2010] FamCA 748
Neat Holdings Pty Ltd & Karajan Holdings Pty Ltd (1992) 110 ALR 449
Sinclair & Whittaker (2013) FLC 93-551

Applicant: MS LORRY

Respondent: MR MUSK

File Number: TVC 556 of 2014

Judgment of: Judge Coker

Hearing dates: 20 & 21 May 2015

Date of Last Submission: 21 May 2015

Delivered at: Townsville

Delivered on: 28 July 2015

REPRESENTATION

Counsel for the Applicant: Ms J Mayes

Solicitors for the Applicant: Macrossan & Amiet Solicitors

Counsel for the Respondent: Mr M Fellows

Solicitors for the Respondent: J. Hamilton and Associates

ORDERS

1. That pursuant to sections 90RD and 4AA of the Family Law Act1975 (Cth) a de facto relationship existed between the Applicant and the Respondent as and from 14 February 2003 until 13 August 2013.

2. That the costs of both parties be reserved.

3. That the Application be listed for mention in Mackay at 9:30am on 26 October 2015 for further directions, including filing of further or updated material and the listing for a Conciliation Conference.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MACKAY

TVC 556 of 2014

MS LORRY

Applicant

And

MR MUSK

Respondent

REASONS FOR JUDGMENT

INTRODUCTION:

1. On 2 June 2014, Ms Lorry, whom I shall refer to as the applicant, filed an initiating application in this court seeking orders with regard to spousal maintenance and property settlement.  Orders were sought on both an interim and final basis but, as will become evident from these reasons, the matter has moved on.  The application, in the first instance, did not make any reference to any necessary declaration being required with respect to the existence of a de facto relationship, though it is clear that a de facto relationship is what is contended by the applicant to have existed.

2. Rather, the applicant simply sought an order for the payment of periodic spousal maintenance in the sum of $627 per week, commencing seven days from the date of any order, and to be payable for a period of three years, and for the payment of a sum of $200,000 by the respondent to the applicant.  Otherwise, the applicant proposed that each party should retain such other items of property as was in their respective possessions and indemnify the other in respect of any indebtedness attached thereto.

   The respondent to the application is Mr Musk.  For convenience, I shall refer to him during these reasons as the respondent.  The first response that was filed on 18 July 2014 was as short and to the point as one could imagine.  Both final orders and interim orders were in these terms:

   ·That the application be dismissed.

3. It became clear, however, as the matter progressed, that the argument put by the respondent in relation to why the application should be dismissed, arose from the fact that the applicant said that a de facto relationship did not exist at the time that jurisdiction vested in this court and the Family Court of Australia. In fact, the respondent suggests in part that there may not have actually been, at any stage, a relationship which fell within the relevant definitions of a de facto relationship, be it pursuant to the Family Law Act or other state legislation.

THE APPLICATIONS

1. Accordingly, on 23 December 2014, the respondent filed an amended response in which a specific declaration was sought with regard to a de facto relationship.  The declaration sought was identical in both interim and final terms and was as follows:

   ·That a declaration be made pursuant to section 90RD of the Family Law Act 1975, that any de facto relationship between the applicant and the respondent had broken down prior to 1 March 2009. 

   Otherwise, it was simply sought, as was previously contained within the original response, that the application by the applicant be dismissed.

2. Section 90RD of the Family Law Act is in these terms:

   DECLARATIONS ABOUT EXISTENCE OF DE FACTO RELATIONSHIPS

   90RD(1):  If:

   (a)an application is made for an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL; and

   (b)a claim is made, in support of the application, that a de facto relationship existed between the applicant and another person; 

   the court may, for the purposes of those proceedings (the primary proceedings), declare that a de facto relationship existed, or never existed, between those 2 persons.

   90RD(2)    A declaration under subsection (1) of the existence of a de facto relationship may also declare any or all of the following:

   (a)the period, or periods, of the de facto relationship for the purposes of paragraph 90SB(a);

   (b)     whether there is a child of the de facto relationship;

   (c)whether one of the parties to the de facto relationship made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c);

   (d)     when the de facto relationship ended;

   (e)where each of the parties to the de facto relationship was ordinarily resident during the de facto relationship.

3. The section then notes that a declaration under subsection (1) with regard to the existence of a de facto relationship may also declare other findings based upon the facts that are presented.  They include that the relationship existed for a certain period or, more specifically, varying periods, as well as whether there is a child of the relationship, whether one or other of the parties made a substantial contribution to the relationship, when the relationship ended and where each of the parties was ordinarily resident during the de facto relationship.

4. It is not sought that I should make any other declarations or findings in relation to the aspects of the application that are currently before me.  From the perspective of both the applicant and the respondent, it is either a situation of a de facto relationship existing up until the time of final physical separation between the parties, or a finding that a de facto relationship did not exist. 

5. It is as a result of that particular aspect of the matter, that in the case outlines that were filed on behalf of both the applicant and respondent, more specific indications were given of the actual orders that were being sought in relation to the proceedings.

6. From the perspective of the applicant, the order sought was to the effect:

   ·that a declaration be made pursuant to section 90RD of the Family Law Act 1975 (Cth) that a de facto relationship existed between the parties between 14 February 2003 and 13 August 2013, and that the respondent pay the applicant’s costs of and incidental to these proceedings.

7. The case outline filed on behalf of the respondent reiterated, basically, the order sought within the amended response to the effect:

   ·a declaration be made that any de facto relationship between the applicant and the respondent had broken down prior to 1 March 2009.

THE EVIDENCE

1. Considerable evidence was called by both of the parties, in relation to this matter and it is necessary for me to comment in passing with regard to the witnesses called on behalf of each of the parties.  From the perspective the applicant, a number of deponents were called, including the applicant’s sister, Ms K, and the applicant’s brother-in-law, Mr A, as well as evidence from Mr C, a disability pensioner who, for some period in or about 2010/11, resided in a caravan at the property owned by the respondent.  Additionally, evidence was called from X, the applicant’s daughter. 

2. On behalf of the respondent, two witnesses were called in support of the contention of the respondent that there was no de facto relationship that existed between he and the applicant.  Those witnesses were friends of the respondent, Mr R and Mr A.

3. To be frank, I was not overly assisted by the evidence of any of the witnesses called on the basis of corroborating the positions taken by each of the parties.  Quite obviously, that arises from the fact that, for all of those witnesses, though to varying degrees and extents, their observations of the relationship between the applicant and respondent, whatever it may have been, were snapshots in time.  In particular, the evidence taken from Mr R and Mr A were very much snapshots of what might be suggested to exist. 

4. Mr R indicates in his affidavit that he had, as at the time of swearing his affidavit in September of 2014, known the respondent for a period of about 11 years.  He also noted that he had visited at the residence on a few occasions, but that those visits were limited.  For example, he notes that he visited the respondent’s house early in 2003 and did not meet the applicant until he visited again in November/December of 2003.  He suggests that in 2004, he would visit the respondent every month or so on his rostered day off for two to three days at a time. 

5. He goes on to note that in 2004, when he saw the applicant and the respondent together, they were, as he put it, “in a de facto relationship”.  He notes that they were in a de facto relationship because, as he says in paragraph 4:

   They were affectionate and loving towards each other.  They did things together like preparing meals, eating meals, sitting and talking, fishing and entertaining friends.  I observed that they would often sit together when entertaining friends.  Mr Musk would often grab Ms Lorry a drink from the fridge if he was getting a drink for himself, he was attentive to her needs.

6. He says, however, that as time progressed and his visits continued, he noted that there were changes.  In particular, he says in paragraph 8:

   In late August 2005 Mr Musk telephoned me and we had a conversation.  Mr Musk told me that he and Ms Lorry had separated.  Mr Musk said he was tired of arguing with Ms Lorry and they mutually decided to end their relationship.  Mr Musk told me, “She does her own thing now and I do my own thing”.

7. Thereafter, Mr R said that he noted a difference in what he had previously observed in the relationship between the applicant and respondent.  He said that he observed that their relationship was similar to a “housemate relationship”, in that they would talk in passing but would never spend time together socially.  He also noted that, different to what had existed previously, the respondent was no longer attentive to the applicant’s needs and there was not, at least from his observation, companionship.

8. In particular, Mr R noted that the applicant would keep to herself in the house and that he never saw her in the shed area where the respondent says he primarily, if not exclusively, resided.  Mr R went on to note that he attended at various other times at the property occupied by the applicant and respondent, but suggests that in 2006 and 2007 he visited the respondent at the house about five times in each year and thereafter he married and only went to the respondent’s house on one or two occasions from 2008.  He did note that what he observed, it would seem up to about 2008, was different to what he observed previously in 2004.

9. Mr R, in cross-examination, acknowledged that any visits by him were primarily for the purposes of fishing expeditions entered into by the respondent, Mr R and a number of other friends who, at different times, were present for these fishing expeditions.  He acknowledged that they left first thing in the morning, dependent upon tides, and that they would return middle to late afternoon, again dependent upon tides.  He also, quite properly I thought, acknowledged that when they returned, those who had been fishing would have a few drinks outside and that they were, as he put it, “all blokes talking about fishing etcetera”.  He indicated that girlfriends or partners were not brought along and that appears to be indicative of the fact that, after 2008 when he married, there were less occasions when he visited and that it was a “blokes’ occasion”.

10. It was also noteworthy that Mr R acknowledged when it was put to him, that he had not spoken with the applicant about any statements made to him by the respondent, regarding whether the relationship had changed or did not even any longer exist.  He acknowledged, in fact, that he didn’t get on with the applicant and didn’t make any effort to spend time with her and nor did she make any effort to spend time with him. 

11. Accordingly, the observations by Mr R were obviously, as I indicated previously, snapshots in time and very small or distinct snapshots, on occasions where it might be expected that a group of male friends were together fishing and certainly, were not seeking to involve female companions.  It was perhaps even more so the case when, as he acknowledged, he did not have any positive relationship with the applicant.

12. The evidence of Mr A was of a similar nature.  Mr A indicated that he would visit or pass through the locality, in which the respondent owned his property, on about six occasions each year, although only two of those involved overnight stays for the purposes of the fishing trips to which I have already made reference.  Others were just as he was passing through, having been somewhere else with his wife and family for family purposes. 

13. He noted, in paragraph 9 of his affidavit filed on 22 September 2014, that from the time that he met Mr Musk in 2005 until the present day, he observed Mr Musk living in the converted shed.  He noted that the shed was fitted out for the purposes of someone living there in that there was a bathroom, a kitchen, a bed, and he said multiple other beds in the shed, although the evidence that fell from both the applicant and respondent would seem to indicate that there were only two beds there and it would indicate that if multiple beds were observed, it was perhaps a reflection of the fact that when Mr A was there and staying overnight, the arrangements were somewhat different to what otherwise existed, in that other beds were established for those staying on for the fishing expeditions.

14. It would suggest that what Mr A saw was perhaps a different arrangement to what existed, at times when only the applicant and respondent were in attendance at the residence.  Mr A certainly suggested that in 2011 when he, his wife and two children were travelling from (omitted) back to (omitted), that they stopped at the respondent’s house for the night to catch up and that whilst he observed that the applicant was at the residence, she did not socialise with him.

15. It is clear, however, that the observations of Mr A were not necessarily a reflection of what existed.  For example, Mr A noted that when he was introduced to the applicant by the respondent in or about September of 2005, the respondent introduced the applicant to him as his caretaker and housekeeper.  Mr A actually smiled and indicated that, “It was something along the lines of that.  Yes, a caretaker, housekeeper and gardener.”  When asked whether it was given in a jocular or funny manner, he acknowledge that that was the case and that it was “pretty much what was said”, and the mood that it was given in. 

16. Of course, such jocular exchanges are not uncommon between parties to a relationship of whatever nature, but, certainly, the suggestion that because such words may have been spoken, it was an exact reflection of the relationship between the applicant and the respondent is not, in my assessment, a finding that can properly be made.

17. I was impressed by both Mr R and Mr A.  They gave their evidence, I thought, in an honest and open way, and there is certainly no suggestion that they were, in any way, exaggerating what they observed.  What was clear, however, was that what they spoke of were only observations taken on rare occasions during times that they were socialising, primarily, if not exclusively, with the respondent, and their observations, in my assessment, whilst true at the time, would in no way be indicative of the overall relationship that existed between the applicant and the respondent.

18. Insofar as the various witnesses called on behalf of the applicant were concerned, their evidence was also a snapshot in time.  It should be noted, however, that there was, if you like, considerably greater opportunity for all of those deponents to observe the relationship and the interactions between the applicant and the respondent, than was the case with regard to Mr R and Mr A.  Ms K, the applicant’s sister, spoke of her observations with regard to the relationship, and whilst in many respects being damming of the behaviours of the respondent, for example suggesting that he drank excessive amounts of alcohol and that he was therefore, on occasions, aggressive and argumentative and would be “chipped” about his behaviour at the hotel, it was also clear that there was ample opportunities for interaction between the applicant, the respondent and Mr and Ms K.

19. It is noteworthy, in particular, that Ms K referred to the telephone calls that became integral to suggestions, as to whether there was or was not a relationship of more than as a housemate or flatmate nature, between the applicant and the respondent.  She says, at paragraphs 31 and 32, the following:

    In or about 2010, the applicant and I went to (country omitted) for two weeks for Mr R’s wedding, the applicant’s son.

    During the two weeks we were in (country omitted), the applicant would phone the respondent each morning or afternoon that the respondent was working to make sure that he was awake and getting ready for his shift at work.  I know that the applicant phoned the respondent each morning or afternoon that the respondent was working when she was at home also.  I would be with the applicant when she would phone the respondent in the afternoon to make sure that he was awake for his shift.

20. This was a matter of some concern because the telephone records which were subpoenaed, though not tendered to the court, were apparently not suggestive of these calls being made.  There appears to be some difficulties in relation to assessing whether or not they were made, firstly because the applicant indicated that the calls were made sometimes from the house phone and there would perhaps be some record of that, but also because it was a cheaper means of communication using mobile phones.  The applicant said that she had sought phone records but was advised that those records, because it was a prepaid phone, were not held by the telephone service provider.

21. The issue went no further but I did note that the applicant made reference specifically to calls at 3.45 am or 3.45 pm during the time that she was in (country omitted), though it appears to have been lost in translation as to whether those calls were therefore 3.45 Australian or (country omitted) time.  The fact is that it was simply unclear as to what occurred, but what is clear is that during the period in 2010, Ms K noted the calls being made and also noted that there were calls made, as she put it, “continually” from the respondent to the applicant, when they were in (country omitted) and that they were for varying purposes. 

22. The respondent himself acknowledged that on at least one occasion when the applicant was in (country omitted), for a period he said of about five days, there might have been eight calls made by him, and whilst some of them were for specific purposes such as locating keys or making other inquiries, others were of a general nature, inquiring as to whether the applicant was enjoying the trip, how the wedding had gone and of a more generalised and involved nature, than simply inquiries as to a specific point. 

1. Ms K was not challenged in relation to that, nor was she challenged in respect of her statement at paragraph 34 of her affidavit that:

   The applicant purchased an expensive jacket made out of sheep’s wool for the respondent while we were in (country omitted).

   The respondent, in fact, when questioned about that, acknowledged that there may have been some jacket but he didn’t know whether it was expensive or not. 

2. Overall, the impression I gained of Ms K was that, whilst no doubt seeking to be supportive of her sister and of her sister’s contention with regard to the existence of a relationship that certainly continued for a significant period, the applicant says 10 years or more, the indications were of the parties being in a relationship though not, it would seem, necessarily a relationship which involved at all times “good aspects of a relationship”.

3. The applicant’s brother-in-law, Mr A, also gave evidence in relation to this matter and it was generally repetitive of the indications given by his wife, as to his observations of a relationship of some nature continuing and being ongoing between the applicant and the respondent.  In particular, it’s noted that the applicant, it was said by Mr A, attended at the hotel on occasions to drive the respondent home after he had consumed alcohol and therefore should not have driven, but it is also noteworthy that Mr A was asked about what he might or might not have known about any unhappiness in the relationship.

4. He indicated that he had not discussed nor heard anything with regard to any breakdown in the relationship, whatever that might have constituted, between the applicant and respondent until a period only a matter of days before the applicant left the residence at (omitted), in August of 2013.  I accept Mr A’s evidence in relation to this matter, though again acknowledge that it is only a reflection of what he observed on various distinct occasions of interaction that he had, either with the applicant and/or the respondent.

5. Mr C gave evidence in relation to this matter.  He noted that at or about the end of 2011, he met the respondent at the (omitted) and was thereafter evicted from the caravan park, and the respondent offered him the opportunity to move to his property at (omitted) and he accepted the offer.  He suggests that he was there for about 12 months, whilst the respondent suggests that it was about six months.  It was interesting, however, that there was no real challenge to much of the evidence that was given by Mr C. 

6. I say that in the sense that whilst he was cross-examined about his criminal offences and other matters of that nature, as well as to whether he was or was not an alcoholic, he was not questioned about what he observed at the property.  For example, he said that during the period that he was there, up until, of course, the time that he was asked to leave following concerns raised by the respondent, he was “friends with the applicant and the respondent”. 

7. He spoke of the entertainment area called the “(omitted)” and that he saw the applicant using the wood stove when cooking was required.  He saw, he said, occasions where the respondent and he would go to the hotel and call the applicant to ask her to pick them up from the hotel when they were finished drinking.  He indicated at paragraph 14 that:

   The respondent, applicant and I would sit in the (omitted) and have a coffee in the morning and have dinner together at night.

8. He also noted that his observations in this period, 2011/2012, were that the respondent and the applicant were affectionate towards each other and that the applicant would walk up to the respondent and give him a hug and they would call each other “honey” and “darling”.  He also noted that the respondent’s boat was called “(omitted)” and that the respondent had, “told me that he was going to name the boat (omitted) after the applicant and, within a couple of months, he had done so.” 

9. Mr C was not challenged at all in relation to that evidence, and it was interesting that at paragraph 23 of his affidavit he noted specifically that the applicant would mow the lawn but that also the respondent would also mow the lawn sometimes but it would take him a long time because of the need to stop for a drink.  The respondent’s evidence was that the applicant would never have touched the mower and yet this very distinct and direct statement of what Mr C said he observed in 2011/2012 was in no way challenged. 

10. I accept, as I have indicated in relation to the earlier statements that were given by various witnesses, that the observations and statements made were snapshots in time, but Mr C’s observations were slightly different.  He lived at the property.  Whether it was for six months or 12 months is irrelevant.  It was in sometime during 2011 and 2012, and he made direct comments as to his observations over time with regard to the parties dining together, the parties expressing affection towards each other, and each, at different times and in different ways, performing tasks upon the property.  Mr C’s evidence was of assistance in relation to the corroboration at least of the evidence of the applicant, in relation to these proceedings.

11. Finally called on the part of the applicant, was the applicant’s daughter, X.  Ms Lorry, in her affidavit, spoke of her observations of the relationship between the applicant and the respondent.  Certainly, she moved around and lived in various places at different times, but she also lived in the (omitted) area and had the opportunity to interact with the applicant and the respondent on many occasions.  She says at paragraph 12 of her affidavit:

    On various occasions between 2005 and 2013, I attended at the (omitted) property with my children and we would stay the night in the house.  On those occasions the applicant and respondent always slept in the same room and my family and I would use the spare bedroom.

12. The respondent denies that that was the case, and it may have been, from the respondent’s perspective, that it was more often than not that he was not in that bedroom.  However, when challenged in relation to that particular aspect of the evidence, being asked whether she was mistaken when she said that the respondent and the applicant slept in the same bedroom, she was most adamant that that was not the case.  She said with great conviction, “No, I’m not”. 

13. I accept the evidence of Ms Lorry in relation to that particular aspect of the matter, because the distinction that might be drawn between what she observed and what Mr R and Mr A observed was very different.  They were family, they stayed in the house.  It was not a situation, as was the case with Mr R and Mr A, of there being a particular recreational activity being participated and in therefore them all being outside.

14. I was assisted by the evidence of Ms Lorry.  I thought that she was a genuine and accurate re-teller and recaller of the facts.  I noted, in particular, her indications with regard to the occasion in June of 2013, just prior to separation, when her father, the applicant’s former partner, had a suspected heart attack and what she observed when the applicant was advised of that situation.  She noted that the applicant was visibly upset and that the respondent comforted the applicant by hugging her and telling her that he loved her.  It was, I thought, a genuine recollection of what occurred and it was to the respondent’s credit that he acknowledged that he may have said such things but that, from his perspective, they did not necessarily mean that there was a relationship.

15. Unfortunately, at least insofar as that particular aspect of the evidence is concerned, I am far more inclined to accept the evidence of

    
    

    Ms Lorry and, of course, by extension, the evidence of the applicant that there were certainly occasions during the relationship between the applicant and respondent, from 2005 until at least the middle of 2013, where there were genuine instances of affection expressed between the applicant and the respondent, and that they were certainly a reflection of much more than would have been the support provided by a good friend or a housemate, to another friend or housemate.

16. I turn, then, specifically to the evidence of the applicant and the respondent.  I note that their observations and perceptions were very different, one from the other, as to what they say existed in the relationship. 

17. It is, of course, always a very personal thing that needs to be considered in relation to what exists between two parties to any form of relationship.  Relationships can be, for want of a better word, over the top, there can be gushing exchanges between parties to a relationship as to their undying love and affection for each other, as well as relationships where there is never an exchange of an affectionate word, but that does not, of itself, suggest that there was not a relationship of conviviality and support.

18. In that respect, I note particularly the various cases to which I was referred, and will obviously turn to later, speaking about the issues of a party’s perception of what a relationship involved.  The perception of this couple were very different in many respects but it was clear that there was some form of relationship and the determination that is required from this court is as to whether the facts point to the existence of a de facto relationship, as defined pursuant to the Act.

19. Insofar as the evidence of the parties was concerned, it was noteworthy that both struggled to articulately express themselves in relation to what existed.  Counsel for the applicant during submissions, particularly noted that neither of the parties were, as she put it, “sophisticated people”.  They were down to earth and were not necessarily able to reflect upon all of the issues that might have arisen in their relationship.  That was emphasised, of course, by the fact that both were generally not able to fully express their positions and concerns with regard to what existed in relation to the matter. 

20. It was not, however, I thought, a situation where one party or the other lacked credibility.  The parties simply disagreed on many of the important facts and, of course, the most important of those was whether there was any form of real relationship between them other than perhaps that of housemates or housekeeper/caretaker, that existed after 2005. 

21. It is necessary, as was noted by Mushin J in Moby & Schulter (2010) FCA 648, to make findings in respect of the credibility of the parties. This matter is a little different to the situation that existed in the matter before Mushin J as it is a situation where I do not find that there was great antipathy between the parties or that one or other was, in fact, simply seeking to mislead me. It was more a situation of, in an unsophisticated way, each party attempting as best they could, to express what they thought was the reflection of the relationship, that existed between the two of them.

22. Both witnesses impressed me as generally attempting to be full and frank.  Both did not “gild the lily”.  They did answer questions in an open and frank manner, and, in fact, on occasions, that gave rise to certain difficulties from my perspective and, with respect, also from the perspective of counsel.  For example, after the applicant was cross-examined, her counsel, in re-examination, asked her firstly a question to the effect, “Do you recall being asked whether in 2005 you had nowhere else to live?”  It was a significant aspect of the argument in relation to this matter, and a matter which took up some considerable time in cross-examination.  Counsel for the applicant seemed somewhat taken aback, therefore, when the applicant responded “No”.

23. The applicant had to actually have explained to her what was being sought in relation to the matter, with regard to whether she had, prior to the relationship with the respondent, lived at some other place in the (omitted) area and only then was she able to clarify that she did, in fact, have somewhere else to go in 2002 prior to the relationship commencing with the respondent and that, similarly, opportunities existed for her to go somewhere else in 2005, if that had actually been required.

24. Insofar as the evidence of both parties was concerned, I indicate that I did not consider that either of them were in any way seeking to be deceptive or misleading in what they indicated was their understanding of the relationship.  It was more a case of them each having a very determined view in respect of what might or might not have constituted the relationship, in whatever form it was finally determined between them, but also arose in not some small part, from the difficulties with regard to articulating their perspective. 

25. I would comment upon the fact that neither, for example, made reference to a matter so significant as what appears to have been moneys provided by the respondent to the applicant for the purchase of a motor vehicle.  Whether there was an element of gift in relation to that or whether it was, in fact, a situation of a loan which was to be repaid though actually never documented, was never raised until the actual hearing.  It is more, in my assessment, a reflection of the unsophisticated nature of the parties, than any attempt on their part to dissemble.

26. That was brought home to me more in relation to the evidence of both of the parties during the questioning that was directed to them in cross-examination.  Without any particularity and certainly without attributing any specific weight to what might or might not be drawn from such evidence, it was clear, for example, that the applicant had little real appreciation of some of the questions that arose with regard to her address and the circumstances in which communication occurred.  It was clear, for example, that her evidence with regard to whether she had cancelled a post office box, had made arrangements for mail to be forwarded to her residence, or whether it was to be forwarded to some other place was a matter which she had simply not turned her mind to.

27. It appears clear, however, that it was of little consequence, because the respondent’s evidence was to the effect that mail forwarded to his address at (omitted), more often than not was simply held at the post office or store which acted as a sub-agency, and that, as the applicant was often in town, it was collected there.  If she were not collecting the mail, it sometimes went to his residence by weekly or bi-weekly delivery, but he did not know whether or not the mail was received at that residence.

28. It was similarly the case that there was dispute about what might be construed from moneys that were provided by the respondent to the applicant, both in relation to various overseas trips to (country omitted) that were taken by the applicant, as well as other moneys that were given.  Both parties perceive them in a different form.  The applicant suggested that they were moneys that were provided on occasions when she needed money, but she didn’t need it often apart from on one occasion where her daughter had been the subject of a sexual assault and she needed to travel urgently and the respondent provided her with moneys. 

29. It was agreed, it would appear, to be refunded, but the respondent’s own evidence was that on at least three or four occasions each year, for a period of eight years between 2005 and 2013, he had lent, in his words, given in the applicant’s words, amounts between $500 and $1000 to the applicant with an expectation, he said, that it was to be repaid, but it was never repaid.

30. It was an interesting point in relation to this matter, that it was contended that the respondent had some doubts as to whether or not the applicant would repay the money, none having been paid before, but then, in the latter stages of the relationship, he provided her with $20,000 towards the purchase of a motor vehicle, when there was no prior history whatsoever of amounts previously being given, being repaid.  Quite simply, the perceptions of each of the parties may have been different but the relationship was, on the face of it, certainly more than might have been able to be construed from a simple flatmate or friend’s relationship.

31. There clearly were greater elements of trust between the parties, notwithstanding, on many occasions, clear evidence of disrespect between the parties than would be the case simply with flatmates.  It would also be remiss of me not to specifically note, for example, that if the position of the respondent were an accurate reflection of what he suggested existed, then it is hard to comprehend in any way that the respondent would have facilitated the applicant remaining in occupation of the main household for a period of some eight years when he said on “hundreds” of occasions he had asked the applicant to leave. 

32. It is simply unable to be accepted that there was any genuine intent in that request or demand that the applicant leave when the property was owned by the respondent and he did not want or agree to the applicant’s continued residence at the property.  That is more so the case, I must say, when the respondent’s own evidence was that he received a significant advantage or benefit from the applicant being in attendance, because he did not like his property to be unattended and he was away for four out of each eight days, on the roster that he was working. 

33. The respondent received a benefit from that and he acknowledged that the applicant was, as he described it to Mr A, a caretaker or homemaker in relation to the property.  It would appear, however, that she was more than that.  She was also the person who collected him from the hotel.  She was the person who was in occupation of the principal part of the residence and, certainly, there appears to have been no real or genuine attempt or intent on the part of the respondent to remove her.  It is a factor of some weight in relation to the determination of this matter.

34. There were a multitude of differences in the evidence between the parties.  It is interesting that a distinction can be drawn between the commentary of Mushin J, as he then was in Moby & Schulter, about the exchanges between the parties in that matter and the issues that were more significantly in dispute between the applicant and respondent in this matter.  In Moby & Schulter, Mushin J described under the heading “Credibility”, the relationship and exchanges between the parties in this manner:

    The parties disagree on nearly all of the important facts in these proceedings.  Accordingly, it is necessary for me to make findings with respect to credibility.

35. In fact, in this particular matter, there were not such divergent perspectives or positions taken by each of the parties.  They acknowledged that they both remained at the property.  They acknowledged that they socialised, albeit to the limited extent that occurred in the (omitted) community, and that they attended various functions, including both personal and more community-based functions together.  It may be, for example, that such community functions would simply be a reflection of there being nothing else happening in the locality at that time and they both were therefore at the local hotel for Christmas drinks or thank you drinks that might be associated with the cleaning of the hotel, but there was more than that in that there were clearly occasions where the parties were together, even if it was only the two of them, celebrating a birthday or other milestone.

36. It, of course, might be the case that housemates would do the same but there were, if you like, those occasions that also arose which were more than just a social drink and less than a community affair.  In that respect, I refer particularly to the fact that the respondent himself acknowledged that perhaps apart from one Christmas between 2005 to 2012, in other words, eight Christmas occasions, they spent the celebration of Christmas Day together.  But it was not simply the two of them alone and therefore together for the purposes of the function but, rather, there were certainly occasions and Ms Lorry specifically referred to one, where members of the extended families from both the applicant’s and respondent’s sides joined together for the purposes of a Christmas celebration.

1. It would not, in my assessment, be the case that that would occur year after year as is clearly the indication here, if there were not more than a simple friendship between the parties.  It was also clear and I have commented upon it already, that the parties exchanged gifts and whilst that might not be unexpected between flatmates or friends, it was certainly a more consistent event between the applicant and respondent, than one might have expected.  It was also clear, for example, that there were more significant sums spent than might otherwise be expected to be spent, if there was not any more significant relationship between the parties. 

2. In that respect, I note the purchase of an expensive woollen jacket that the applicant is said to have purchased for the respondent, as well as the purchase of a coffee machine.  There were other comments made in relation to purchase of items and certainly, there was some debate relating to the purchase of a ring which the applicant said was purchased by the respondent for her.  Of course, the legal representatives for both parties understandably argued that different connotations could be drawn from the fact that a ring might have been purchased. 

3. The first, from the perspective of the respondent, was simply to say that if a ring had been purchased in 2009/2010, it would not have been mentioned for the very first time in some cross-examination toward the end of the respondent’s evidence.  It would have been rung loud and long from the affidavit material that was filed and it was never mentioned in the proceedings.

4. From the perspective of the applicant, however, it was emphasised that the ring was purchased and that the response by the respondent to the suggestion that it had been purchased by him for the applicant was interesting, in that there was not simply a categorical denial that the ring had ever been purchased but, rather, a more guarded response that the respondent could not recall the purchase of the ring.

5. Suffice it to say, there were certainly areas of dispute between the parties and different perceptions by each of the parties of what might or might not be drawn from the relationship that existed between them and how it played out, but it was not a situation where all of the important facts were in dispute. 

6. That is not to say that there were not significant matters that were obviously disputed.  Not the least of those was whether, in fact, the parties had an ongoing sexual relationship.  The applicant was firmly of the position that a sexual relationship continued between them until, as she said it, the day that the respondent left to go to work and she determined in the next day or so that she was finally leaving the property at (omitted).  The respondent, however, said that there had not been an intimate or sexual relationship between them for any occasion since he asked the applicant to leave in 2005 and she had indicated that she had nowhere else to go. 

7. It is unfortunate, that a court is called upon to make a finding in relation to such a matter and I do not intend to labour the point.  However, one matter did give rise to some concern for me in that respect.  I say that from the sense that almost as an aside, the respondent indicated that he had not been able to achieve erection since 2005.  He indicated, therefore, that that was a clear piece of evidence to the effect that there was no intercourse between he and the applicant.

8. Of course, there is a significant distinction to be drawn between intimacy between a couple and actual sexual intercourse but more particularly, again almost as a passing comment the respondent made reference to the fact that the doctor had provided him with a prescription for Viagra and it had, as he put it, “almost killed me”.  The inference that can be drawn from that of course, is that the respondent felt the need to be able to in some way enhance his sexual performance and, of course, as there is no suggestion of any other relationship held by the respondent between he and any other person, it can only be inferred, that if he obtained Viagra for the purposes of enhancing his sexual capacity, then that could only relate to the relationship between he and the applicant.

9. I am not necessarily finding that that is a positive indicator of the nature of the relationship between the applicant and the respondent, but certainly would note that it, like so many of the other small pieces of evidence that fell in relation to this matter, holds some sway, particularly when there are such conflicting positions taken by each of the parties that evidence of all characteristics must be considered, in relation to the proceedings.

10. Insofar as the respondent is concerned, he, like the applicant, was not a sophisticated person.  He indicated specifically that he had difficulties with literacy and to obtain his position within (employer omitted), he had to study for 16 months to pass the three hour test and the three hour oral examination, because he had to memorise both the questions and the answers, writing them out and detailing them, so that when he saw the questions on the paper, he could recognise them and then include the response that was necessary in relation to them.

11. It is, of course, difficult to draw any assessment in that particular respect, but it’s noteworthy that the issues with regard to literacy arose, as a result of the production by the applicant of a document headed “Personal Particulars” which provided information as to the respondent’s qualifications, previous employment, referees and the like.  The significance was, of course, that it made reference to his marital status as a de facto relationship. 

12. The respondent’s position in relation to that was to suggest that he had no knowledge of what was contained within that document, that there was a suggestion of a fraudulent inclusion of such information by the applicant in any documents that were provided and it was emphasised on the part of the respondent, that there were significant differences to be drawn between the document that was provided to the respondent’s current employers at the time of him applying for a position to the document that was actually made available to the court as an annexure to the applicant’s affidavit material.

13. There were certainly distinctions and, in particular, it was noteworthy that the indications of the respondent’s prior experience in the document held by his employers concluded in 2001, whilst the document that was provided as an annexure to the wife’s material went through to experience in 2011.  It was emphasised to me, therefore, that I could not draw a great deal from that.  However, again, I would note that it was a document that was held by the applicant but it related particularly to the personal particulars of the respondent.  It also showed particulars with regard to his experience in the work field that he was in up to 2011.

14. For the applicant to have access to that document, there must have been a significant degree of trust and respect between the parties and of course, that was even more emphasised when the respondent’s own evidence was to suggest, that he didn’t know what had been forwarded to his current employers at the time of him making the application.  He had, in other words, relied upon the applicant to complete the document or to forward the document on his behalf along with the necessary other application requirements for him to obtain his employment. 

15. It is hard to imagine that such trust or faith would have been put in the applicant by the respondent without there being, at least to some degree, an element of mutual intent, regard and respect and that, if it were simply a situation of a flatmate or a housemate assisting, there would have been some other checks or balances which it would have been thought the respondent would have sought to put in place to ensure that there was nothing inaccurate or otherwise deceptive in the document.

16. The fact that it appears to have been a document which had been relied upon by the respondent for more than 10 years, noting that the particulars included in the document provided to his employers showed his last area of experience concluding in 2001 and that provided by the applicant showing relevant work history to 2011, clearly indicates it as a “living document”, if I can describe it that way.  In other words, one which was changed, modified and amended, dependent upon the circumstances and the issues that had arisen between the parties.

THE LAW

1. Quite simply, there is much that I need to address in relation to this matter, with regard to the factors that are detailed in section 90RD, with regard to assessing whether there is or is not a relationship. But the various matters that I have touched upon hold some significance, though I will obviously refer to them more specifically during the reasons in this matter.

2. Counsel for both parties indicated that the determination of the existence of a de facto relationship after March of 2009, is a jurisdictional fact.  Such comment was made by Murphy J in the decision of Jonah & White (2011) 45 FLR 460 where his Honour, as the trial judge, noted that:

   Such a question was a determination of fact which, in turn, enlivened the power of the court to exercise the discretion to grant certain remedies under the Act.

3. That was commented upon favourably by the Full Court in the appeal decision, recorded at 2012 FLC 93-522. Clearly, therefore, it is necessary to consider the facts obviously in line with the matters that must be looked at in determining whether a de facto relationship exists. It was emphasised that the onus of proof falls upon the applicant and, in that regard, I was directed, understandably, to the comments of the judges of the Full Court in Sinclair & Whittaker (2013) FLC 93-551. There, commenting upon the grounds of appeal that were brought, they noted that one of the grounds were:

   The primary judge erred by giving insufficient weight to the requirement that to establish the existence of the de facto relationship as alleged, the applicant was required to prove “a relationship as a couple living together on a genuine domestic basis” in circumstances where his Honour…

   -in that case, made certain findings.

4. However, where, in that case, it was suggested that the onus of proof, though determined on the balance of probabilities, should require a higher level of satisfaction than might otherwise be the case, the Full Court commented in relation to a number of decisions on point.  In particular, they referred to the decision of Dixon J in Briginshaw & Briginshaw (1938) 60 CLR 336 where his Honour said at 362:

   The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.

5. But their Honours then went on, noting the comments of the majority in Neat Holdings Pty Ltd & Karajan Holdings Pty Ltd (1992) 110 ALR 449 as follows, as 449-450:

   The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities.  That remains so even where the matter to be proved involves criminal conduct or fraud.  On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove.  Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”.  Statements to that effect should not, however, be understood as directed to the standard of proof.  Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

6. In other words, there are only two standards of proof.  There is not a higher bar to be achieved in relation to matters to be determined where the consequences might be significant for one or other of the parties.  As the Full Court said in Sinclair & Whittaker at paragraph 90:

   There are many instances where findings have a significant and grave effect but where proof needs only to be to the ordinary civil standard.  There is only that standard or the criminal standard.  There is not a third.  It is enough that the applicant bears the onus of satisfying that standard.

7. What is required, therefore, in this matter is that the applicant meet, as best they can, the challenge of providing information which would satisfy a court that a de facto relationship exists. Section 4AA of the Family Law Act headed De Facto Relationships is in these terms:

   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

   (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.

8. Relevant here, then, are the considerations particularly detailed in subsection (2) as sub-headed:

   Working out if persons have a relationship as a couple.

9. There are the various considerations and it is, of course, necessary to address them, but it is particularly noteworthy that subsections (3) and (4), reflect the fact that no particular circumstance is to be regarded as necessary in deciding whether a person has had a de facto relationship, and a court determining whether a de facto relationship exists, is entitled to have regard to such matters as might be found and to attach such weight to any of the matters as may seem appropriate in the circumstances of the case.

DISCUSSION

1. In other words, there is no predetermined requirement that must be met, in order to establish whether or not a de facto relationship exists. It is more the case of a consideration of all of the information and evidence available and, of course, it is from that that the onus arises, in relation to the applicant, rather than any particular factor being more significant than any other. It is necessary, then, to obviously consider each of the circumstances that are detailed in section 4AA(2) and to apply, as best one can, the evidence that is available to those considerations. In the end, however, it must then simply be a case of the court determining, as best it can, what might or might not be the circumstances of the relationship that existed between the parties.

2. It is of some assistance in that regard, however, to note the comments of Murphy J in Jonah & White in the first instance. His Honour, in that case, referred to the legislation which had been enacted both in Queensland and New South Wales, dealing with de facto relationships. He noted in particular that the terms of the state legislation were not entirely the same as the terms of section 4AA of the Family Law Act, but he noted that they were, “sufficiently similar such that decisions in this state in respect of that legislative definition, to be instructive.” However, he then went on, noting, at paragraph 55, following consideration of the Queensland determinations:

   Underlying those authorities is a necessity to establish the existence of “a relationship as a couple living together on a genuine domestic basis” informed by, but not necessarily determined solely by, the individual findings with respect to the list of circumstances.

3. At paragraphs 58 through to 60, his Honour then noted:

   58.It is in my opinion instructive that the Commonwealth legislature did not provide for relief of the type contemplated in Part VIIIAB of the Act in circumstances where one party has, by their words or actions, provided care, love or support to another or, indeed, in circumstances where one party has induced in the other an expectation of a relationship of greater commitment than that which transpired.  Rather, the legislature has made provision for that relief upon satisfaction of the jurisdictional fact that a relationship of a particular, statutorily-defined, type exists.

   59. In that respect it seems to me also instructive that the Commonwealth legislature did not provide for relief of that type in circumstances where two people were parties to, for example, a “domestic relationship”, or, as in New South Wales, a “close personal relationship” but, rather, only where parties were in a “de facto relationship” as defined.

   60. In my opinion, the key to that definition [de facto relationship] is the manifestation of a relationship where “the parties have so merged their lives that they were, for all practical purposes ‘living together’ as a couple on a genuine domestic basis”.  It is the manifestation of “coupledom”, which involves the merger of two lives as just described, that is the core of a de facto relationship as defined and to which each of the statutory factors (and others that might apply to a particular relationship) are directed.

4. The comments by Murphy J clearly show the difficult concepts that must be looked at, in relation to determining whether a de facto relationship exists.  It is, with respect, a very different consideration to that which exists in a marriage, most particularly because the circumstances of a marriage reflect very differently upon relationships.  A marital relationship has a marriage certificate as an indication of the existence of a community and societally-recognised couple determined to spend their life together and to act in a joint way for the purposes of their relationship.

5. It may be, of course, and this court sees it every day, that what is intended at the commencement of a relationship is not what ensues, and one regularly comes across relationships in which there has been very significant change from what might have been the original intention of the couple at marriage.  But at least there is that fundamental acknowledgement that there was, at the commencement of the relationship, a joint intent with regard to coupledom. 

1. That does not exist in relation to a de facto relationship because, as it not uncommon, many of those relationships commence in a way where there is no anticipated intent on the part of either of the parties for there to be a relationship, other than more than something of the nature of a casual sexual or supportive role to be provided by each party to the other.  It is only as the relationship develops and changes that there is recognition of the fact that the relationship changes.

2. It is for that reason that there is, as best the Parliament could provide, a checklist to be considered. The first of those considerations is the duration of the relationship, and the first comment that needs to be made is, of course, that there is no definition provided within the Act of what constitutes a relationship. The definitions section of the Family Law Act, though extensive, does not attempt to determine what might or might not constitute a relationship, and that is understandable in light of the comments that I have already made, with regard to the multitude of possible relationships that exist between couples within our society.

3. What can be said in relation to this particular relationship is that it is one which, in one aspect or another, endured over a period of some 10 years.  Certainly, from the applicant’s perspective, it was a relationship of a de facto nature for 10 years, commencing in or about 2003 and concluding in August of 2013.  From the respondent’s perspective, it was a relationship that endured for 10 years, but only for the first two years, until 2005, was there a de facto relationship and, thereafter, the relationship was less ill-defined, be it as a caretaker or flatmate than as a de facto relationship, which constituted all of the elements of a relationship that might be seen as existing in a more committed manner.

4. The duration is not, however, in any way of significance in respect of the matter because, in the most obvious of distinctions, parties could share a house for years or even decades for many reasons which do not constitute a de facto relationship. Interestingly, it was emphasised by counsel for the respondent that he and counsel for the applicant had, in many respects, a relationship which, if all of the considerations looked at in section 4AA(2) were taken into consideration, then they could be seen to be in a de facto relationship. They had worked together in chambers for many years, they did not have a common residence but, interestingly, because of the work that they did, they both travelled together a lot, not, of course, sharing rooms but being in the same town and meeting with each other, not only for professional but also for personal reasons, such as to share a meal or the like.

5. It was emphasised, additionally, that there was a degree of financial interdependence between them in that, in the operation of their chambers, they shared expenses with regard to staff and expenditure associated with the conduct of their chambers, as well as mutual ownership and acquisition of property relating to the chambers themselves.  Quite clearly, a number of criteria, therefore, which were specifically delineated as being factors to be considered with regard to whether there was or was not a de facto relationship in existence, would point to a relationship existing between the counsel in this very matter.

6. The fact that both of the counsel were married to other persons was not relevant because the provisions of section 4AA(5)(b) specifically acknowledges that a de facto relationship can exist, even if one of the persons is legally married to someone else or in another de factor relationship, and one would think that there could be, in the most extreme of circumstances, a de facto relationship that exists, notwithstanding that both of the parties to that de facto relationship were in another married or de facto relationship as well. It simply emphasises the multitude of considerations that must be looked at in relation to the considerations.

7. The second of the matters that need to be considered are the nature and extent of the common residence of the parties.  Again, there are different levels of consideration that must be looked at.  The parties both acknowledge that they resided for a period of some 10 years or more at (omitted), in the State of Queensland.  But it is not so simple as to suggest that that is a factor which obviously weighs automatically in favour of the existence of a de facto relationship.  The respondent’s position was very strongly and firmly in the direction of there being no communal sharing of the space or, in fact, any mutual intent between the parties.

8. From the respondent’s perspective, it was a situation of inconvenience to him that the applicant remained in occupation of the two-bedroom home on the property and he resided separately in a self-contained shed which had cooking facilities, bathroom facilities, a bed, a separate sitting room, television and the like.  The distinction between the position of he and the applicant is vast. 

9. The applicant says that they in fact shared the same bed for a period of 10 years.  It is, of course, difficult to make assessments in that regard, where both parties come from such diametrically opposed views but as I noted when commenting upon the evidence of various corroborative witnesses, it was clear that those who were more regularly in contact with the applicant and the respondent, noted that they shared the same room being the evidence of Ms Lorry and that they dined together, not just the two of them but from Mr C’s perspective, the three of them, when he was in residence at the property.

10. I did not gain any impression that either of these people were lying.  I gained the more distinct view that whilst the respondent’s perspective was to say that there was never a communal or mutual relationship between he and the applicant that that was not, with respect, an entirely accurate reflection of what might have existed.  I do not doubt that there were occasions when they were separate and apart, not the least of which, of course, was when the respondent was away with work.

11. But there were also occasions when fishing and friends, particularly of the respondent, were present and there was no sharing of the room or the bedroom by the two. However, I am not satisfied that there was a total distinction to be drawn between the day-to-day lives of the two, when both were in occupation of the property at (omitted).

12. I am more inclined to the view and find that whilst the relationship was not one where there may have been a sharing of the bed and a sharing of the household in all respects every day of the 10 years that the parties were at the residence, I am not at all satisfied that it never occurred.  Whilst it may not have been something that existed every day of the week, there was a mutuality or, as described by Murphy J, a coupledom that involved this couple, though different to other relationships.

13. Consideration also needs to be given to whether there was a sexual relationship between the parties and, of course, as is more often than not the case, only the applicant and the respondent can accurately describe what might or might not have been the extent of their physical relationship, one with the other.  As I commented earlier, however, a factor that does play on my mind and which leads me to more generally accept that there was at least some level or degree of intimacy between the applicant and the respondent, was the fact that the respondent’s own evidence was that he was unable to attain erection and yet, whilst not in a relationship with any other person of any nature, sought advice from his doctor which led to him being prescribed Viagra.

14. Whilst, obviously, there was no medical evidence available and there may have been other factors which led to the prescription of that particular medication, there cannot be any illusion that at least in part it was not as a result of there being some desire, perhaps on the part of both, for some continued sexual relationship between them.  I am satisfied that there was, therefore, greater reliability in the statements made by the applicant with regard to a continued intimacy between the two, though not necessarily to the daily sharing of a bed that was suggested by the applicant.

15. Insofar as the degree of financial dependence or independence and any arrangements of financial support there is, again, wide divergence between what each suggests.  Certainly, there was no suggestion that the respondent provided housekeeping or an allowance to the applicant.  It was clear that the respondent was responsible for all of the outgoings associated with the operation of the home, but that is perhaps in one respect understandable in that it was a residence owned by him prior to the commencement of any form of relationship between he and the applicant.

16. But it was also clear that there was some financial enmeshment between the applicant and the respondent not the least arising from the fact that the respondent’s own evidence was that between 2005 and 2013, there were occasions each and every year, perhaps three or four times each year, where he gave moneys to the applicant and none of those moneys were repaid.  It is hard to imagine that those without a more significant relationship would continue to give money, without any indication whatsoever of a repayment between them.

17. It was also noteworthy that whilst the respondent’s income was clearly far more significant than that of the applicant’s, the applicant did have, at various times and in various ways, forms of employment which meant that apart from perhaps those more significant outlays, such as travel costs or the purchase of motor vehicles or the like, she was able, as she said, to meet the expenses that arose from her own perspective and that, as the respondent paid the outgoings in relation to the property, she made the payments in relation to groceries, household goods and the like.

18. In that respect, there was evidence also given by the applicant’s sister, Ms K, to the effect that Ms K had seen the applicant buying groceries and household items for both she and the respondent and Ms K was not challenged in that regard.  It was also noteworthy that whilst the respondent had initially suggested that there had “never” been joint purchases of items post-2005, he did acknowledge that on occasion after 2005, if the applicant were going shopping he would give her money or, on occasion his credit card and PIN number for the purposes of purchasing items for him. 

19. He also indicated that in many of the telephone calls and there were clearly many telephone calls over the 10 years that the parties were both in residence at (omitted), that he was asked to pick up items when returning from work at the mines and that he did so.

20. Clearly, there might not have been the financial interdependence that might be reflected in most couples’ relationships, but by the same token, there was certainly evidence of some financial exchanges between the parties which suited them and their purposes rather than a total independent operation of accounts and meeting of expenses. 

21. Again, whilst it is not the norm, there is a degree of financial interdependence between the parties as well as arrangements for financial support, particularly from the respondent to the applicant, which gives rise to some indications of a relationship more than was simply contended by the respondent.

22. From another perspective, however, it is clear that the parties did not acquire property together. But, if anything, the effect of the fact that the respondent provided the applicant with $20,000.00 to be utilised towards the purchase of a motor vehicle which was then purchased in the applicant’s name solely, shows that there was the acquisition of property and apparently, mutual intent in that regard.  It could not be imagined, with respect, that the respondent would have simply given the money to the applicant without some form of agreement or acknowledgement of the loan as he contended without some steps being taken to arrange repayment and yet until the matter actually came before the court, it was not even mentioned in the material between the parties.

23. It is clear that they did not mutually acquire the property for their joint purposes, but it is just as clear that they did certainly at least with regard to a motor vehicle, jointly act for the purchase of a motor vehicle and there was no suggestion of any requirement or obligation that arose in relation to repayments. 

24. The degree of mutual commitment to a shared life is a difficult consideration, particularly in light of the evidence of the parties in these proceedings.  Quite simply, the evidence of the applicant repeatedly was that she loved the respondent “warts and all” and that notwithstanding that he was drunk, as she put it, “99 per cent of the time” and that when under the influence of alcohol was verbally abusive and aggressive toward her, she accepted that as part and parcel of the relationship.

25. If that were to be the case then her commitment to a shared life was certainly strong.  She indicated, and I accept, that there were occasions where, after she was the subject of some verbal barrage or, as she put it, “rampage”, the next day she would indicate to the respondent that he had been over the top in his behaviours and he would apologise to her.  There was, I thought, an element of real truth in such statements and I accept that there was that commitment on the part of the applicant, to the relationship. 

26. Certainly, it would seem that it was far greater commitment to the relationship than was the case as indicated by the respondent, but I am not of the view, on all of the evidence that has been presented and, in particular, the corroborative evidence in respect of the applicant’s case, to which I have already referred, that there was not some mutuality, that there was not some degree of support, of respect and intent on the part of the respondent, such that there was no relationship which could be relied upon.

27. They may not have had, to the same degree, a commitment to a shared life but they did share, in different ways and in different respects, their life together over a period of more than 10 years, and whilst it appears that it may have been acknowledged by both that there were changes in the degree and mutuality of commitment, particularly after 2005 when more time was spent, it would seem, by the respondent away from interaction with the applicant, it was certainly not a situation where there was a total cessation of interaction and “coupledom”, between the parties.

28. It is not necessary to make reference to issues with regard to whether there was a registered relationship under prescribed laws of the state or territory, nor obligations and responsibilities in respect of the care and support of children of the relationship.  Neither of those circumstances existed. 

29. There is the need to consider the reputation and public aspects of the relationship.  In that regard, the corroborative evidence called on the part of the applicant weighs far more heavily in favour of an assessment that there was a de facto relationship between the applicant and the respondent, than is the case with regard to the evidence called on the part of the respondent.  Quite simply, the evidence of Mr A and Mr R are very fine snapshots in time, which are not reflective of the totality of the 10 years that the applicant and respondent were living at the same property. 

30. The circumstances almost exclusively referred to by Mr R and Mr A relate to situations of friends with common interests being together, to the exclusion of their various partners.  That’s not to suggest for a moment that the relationships that either Mr R or Mr A might have were not relationships of commitment and mutuality, because during those small points in time, they were not with their respective partners.  It was simply a reflection of what these people with similar views and interests did at those times.

31. That is not the case, however, with the information and corroboration provided by Mr and Ms K, Mr C and Ms Lorry.  I have already commented upon what they observed and, in particular, the observations of Mr C which were not challenged, as well as those of Ms Lorry, which I have found were an accurate reflection of what she observed, particularly on occasions when she and her children were at the home. Those observations would indicate that there were public aspects of the relationship that existed.

32. It is not necessary, nor would it be helpful for me to attempt to quantify other arrangements and commitments that were in place but the exchange of gifts and cards between the parties is an indicator of the relationship and, of course, many of those exchanges occurred in a public forum.  The signing of a birthday card with not simply the words “love Mr Musk”, but “love you, Mr Musk”, is a distinction that was emphasised and is an understandable one, particularly when the card was one signed by a group of people, not just an exchange between the applicant and the respondent.

33. Similarly, the applicant’s willingness, repeatedly it would seem, when called upon by the respondent to do so, to collect him and, on occasions, Mr C from the hotel and to return them to the property at (omitted), indicates a public perception of the relationship as more than simply one of housemates or friends.  A friend would certainly help out on an occasion but not over and over and over again.  Whilst it may have been suggested that this would be done as some form of possible recompense, for the continued occupation of the residence, I am not of the view that there would not be a proper public perception of this being something that was done between parties to a relationship, more significant than simply housemates or friends.

34. Similarly, and perhaps most significantly in that regard, was the situation that existed in respect of mutual special occasions spent together.  Ms Lorry’s evidence in relation to this matter, in particular, was to the effect, that there was a Christmas in 2012 which was hosted at her family home at (omitted), and was attended by the applicant, the respondent, Ms Lorry’s partner and her four children, the respondent’s father, Mr M, and by her brother-in-law, her partner’s brother, his wife and children.  It was an extended family event.  It was not one that would simply have been participated in by a housemate or friend, particularly when it would seem that Mr M was involved in the arrangements, such that it was not simply a case of the respondent being alone at Christmas and therefore invited to join.

35. I am much more inclined to the view that there were public aspects of the relationship that were accepted certainly by family members and others within the community, which would reflect a relationship of mutual support, and whilst it may not be the same as other relationships that exist, it is the diversity in relationships and the need to consider that diversity in relationships that gives rise to a finding that there is a de facto relationship, in this particular matter.

36. To that end, therefore, I am satisfied that the evidence in relation to this matter is such that this court has jurisdiction to determine an application for the alteration of property interests or spousal maintenance made by a party to a de facto relationship, and declare that a declaration of the existence of a de facto relationship be made between the parties as and from 14 February 2003 until 13 August 2013.  The orders of the court will therefore be as detailed at the commencement of these reasons.

I certify that the preceding one hundred and thirty-four (134) paragraphs are a true copy of the reasons for judgment of Judge Coker

Associate: 

Date:  28 July 2015