Malcher and Seares
[2012] FamCA 643
FAMILY COURT OF AUSTRALIA
| MALCHER & SEARES | [2012] FamCA 643 |
| FAMILY LAW – DE FACTO RELATIONSHIP – whether lasting two years – declaration that a de facto relationship existed |
| Family Law Act 1975 (Cth) ss 4AA, 90SB, 90SM, Property (Relationships) Act 1984 (NSW) ss 4, 4(1)(a), 5(1)(b) |
| Bar-Mordecai v Hillston [2004] NSWCA 65 Barnes v De Jesus [2001] NSWSC 19 Hayes v Marquis [2008] NSWCA 10 Jonah & White (2011) FamCA 221 Petersen v Gregory [2007] NSWSC 8 Roy v Sturgeon (1986) 11 NSWLR 454 Ye v Fung [2006] NSWSC 243 |
| APPLICANT: | Mr Malcher |
| RESPONDENT: | Ms Seares |
| FILE NUMBER: | SYC | 7615 | of | 2011 |
| DATE DELIVERED: | 3 August 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Stevenson J |
| HEARING DATE: | 11 July 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Obrart |
| SOLICITOR FOR THE APPLICANT: | Eddy Neumann Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Miller |
| SOLICITOR FOR THE RESPONDENT: | Paltos Briggs Family Lawyers |
Orders
That pursuant to section 90RD of the Family Law Act 1975 it is declared that a de facto relationship existed between Mr Malcher and Ms Seares for a period of at least two years between June 2007 and November 2011.
That by the court’s own motion it is ordered that the proceedings are referred to Registrar George, the docket Registrar, for mention and further directions including the appointment of a conciliation conference on a date to be advised by the Registrar.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Malcher and Seares 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 7615 of 2011
| Mr Malcher |
Applicant
And
| Ms Seares |
Respondent
REASONS FOR JUDGMENT
The Proceedings
On 15 December 2011 the applicant, Mr Malcher, commenced proceedings for alteration of property interests pursuant to s 90SM of the Family Law Act 1975. He alleged that he and the respondent, Ms Seares, lived in a de facto relationship for a period of at least two years.
In final submissions counsel for the applicant contended that the parties lived in a de facto relationship between June 2007 and November 2011. The respondent conceded that a de facto relationship existed between December 2010 and November 2011. The discrete issue for determination by me was whether the parties’ de facto relationship subsisted for a total period of at least two years.
Background
The applicant was born in 1978 and is now 33 years old. The respondent was born in 1962 and is currently 50 years of age. The parties met in November 2004 and soon entered into a sexual relationship.
When the parties began their relationship the applicant lived at Suburb R with his wife, son and step-daughter. The respondent lived at Suburb D with her husband.
In June 2005 the applicant separated from his wife, who had by then given birth to their second child. He lived with his parents at Suburb R until late 2005, when he moved into a one-bedroom apartment at Suburb T. He took a six month lease in respect of these premises.
The respondent separated from her husband in April 2007 and moved to a home which they owned at Suburb S. In February 2008 she secured accommodation in a property at Suburb Y owned and occupied by Ms B. The respondent spent weekends at the Suburb S property. She was accompanied by the applicant and his two children when they spent time with him on alternate weekends.
On 3 December 2010 the parties moved into a property at Suburb M which the respondent had owned since 1988. During the next three or six months they carried out renovations to this property. The respondent paid $39,500.00 for materials and the applicant, who is a licensed builder, carried out the physical work. The respondent’s uncontradicted evidence was that the property was valued at $690,000.00 prior to renovation and was sold for $742,500.00 in July 2011.
In April 2011 the respondent purchased an apartment at Suburb P for $1,230,000.00, using borrowings of $1,100,000.00 from the Commonwealth Bank. The respondent conceded that the applicant paid half of the mortgage instalments for a period in 2011. She conceded also that the utilities were paid by the applicant’s business.
The parties opened a joint bank account in April 2011 when the respondent purchased the Suburb P property. Mortgage repayments were made from this account, to which both parties contributed funds. The account was closed in October 2011. The respondent seemed to contend that the applicant contributed to mortgage repayments until settlement of the sale of the Suburb M property, which took place in July 2011. The applicant’s evidence was unclear as to the period during which he contributed to the Suburb P mortgage.
In July 2011 the parties moved into the Suburb P apartment. Their joint intention was to carry out renovations but no work was in fact undertaken to this property. It was common ground that they intended to share equally any profit generated on the sale of the property following the renovations.
The parties separated in November 2011. The respondent left the Suburb P apartment on 14 November 2011 and the applicant vacated the premises on 27 November 2011. The respondent then returned to the property.
On 23 April 2012 a cheque in the sum of $30,000.00 was tendered to the applicant’s solicitors by the respondent’s lawyers. The respondent offered this payment to the applicant on account of his labour in the course of the renovations to the Suburb M property.
Approach To These Proceedings
The applicant seeks an order for alteration of property interests pursuant to s 90SM of the Family Law Act 1975. Relevantly, this section empowers the Court to make such order as it considers appropriate:
(a)in the case of proceedings with respect to the property of the parties to the de facto relationship or either of them – altering the interests of the parties to the de facto relationship in the property.
Section 90SB provides that the Court may make an order pursuant to s 90SM in the following circumstances:
(a)that the period, or the total of the periods, of the de facto relationship is at least 2 years; or
(b) that there is a child of the de facto relationship; or
(c) that:
(i)the party to the de facto relationship who applies for the order or declaration made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c); and
(ii)a failure to make the order or declaration would result in serious injustice to the applicant; or
(d)that the relationship is or was registered under a prescribed law of a State or Territory.
The parties have no child and their relationship was not registered pursuant to a prescribed law of a State or Territory. The applicant’s case was that the parties lived in a de facto relationship for a period of at least two years. He did not assert that he made “substantial contributions” and that failure to make an order would result in “serious injustice” to him.
The term “de facto relationship” is defined in s 4AA of the Act as follows:
“Meaning of de facto relationship
(1) A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b)the persons are not related by family (see subsection (6)); and
(c)having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has effect subject to subsection (5).
Working out if persons have a relationship as a couple
(2) Those circumstances may include any or all of the following:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g)whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h) the care and support of children;
(i) the reputation and public aspects of the relationship.
(3)No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4)A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
(5) For the purposes of this Act:
(a)a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and
(b)a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.
When 2 persons are related by family
(6)For the purposes of subsection (1), 2 persons are related by family if:
(a)one is the child (including an adopted child) of the other; or
(b)one is another descendant of the other (even if the relationship between them is traced through an adoptive parent); or
(c)they have a parent in common (who may be an adoptive parent of either or both of them).
For this purpose, disregard whether an adoption is declared void or has ceased to have effect.
I have been assisted by the reasoning of McColl JA in the New South Wales Court of Appeal decision of Hayes v Marquis [2008] NSWCA 10. This decision concerned, inter alia, the existence of a de facto relationship within the meaning of s 4 of the Property (Relationships) Act 1984 (NSW) which provides as follows:
(1)For the purposes of this Act, a de facto relationship is a relationship between two adult persons:
(a) who live together as a couple, and
(b)who are not married to one another or related by family.
(2)In determining whether two persons are in a de facto relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as may be relevant in a particular case:
(a)the duration of the relationship,
(b)the nature and extent of common residence,
(c)whether or not a sexual relationship exists,
(d)the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties,
(e)the ownership, use and acquisition of property,
(f)the degree of mutual commitment to a shared life,
(g)the care and support of children,
(h)the performance of household duties,
(i)the reputation and public aspects of the relationship.
(3)No finding in respect of any of the matters mentioned in subsection (2) (a)–(i), or in respect of any combination of them, is to be regarded as necessary for the existence of a de facto relationship, and a court determining whether such a 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.
(4)Except as provided by section 6, a reference in this Act to a party to a de facto relationship includes a reference to a person who, whether before or after the commencement of this subsection, was a party to such a relationship.”
McColl JA referred to earlier decisions of the New South Wales Court of Appeal, including the well known judgment of Powell J in Roy v Sturgeon (1986) 11 NSWLR 454. Her Honour held:
These cases establish that definitions of relationships are not to be dissected into discrete elements, an approach endorsed by Mason P, Tobias JA and Davies AJA in Bar-Mordecai v Hillston [2004] NSWCA 65 (at [86], [125]. What this means practically, is that it is necessary to consider the evidence as a whole, not under isolated headings: Barnes v De Jesus [2001] NSWSC 19 at ([26]) per Windeyer J.’
McColl JA then contrasted a “close personal relationship” within the meaning of s 5(1)(b) with a “de facto relationship” for the purpose of the Property (Relationships) Act 1984. Her Honour said:
the concept of “living together” will always be something different from living together as a couple, one of the critical requirements for a de facto relationship.
Her Honour then cited with approval these words of Barrett J in Petersen v Gregory [2007] NSWSC 8 (at [11]):
Barrett J described the central concept of the definition of “de facto relationship” and, in particular, of the concept of living “together as a couple” (s 4(1)(a)) as being a “personal commitment that is mutually acknowledged and of an emotional kind transcending the mere fact of the shared residential setting”; see also Ye v Fung [2006] NSWSC 243 (at [64]-[65]) per Gzell J.
I have also been assisted by the reasoning of Murphy J in Jonah v White (2011) FamCA 221. His Honour said:
In my opinion the key to that definition is the manifestation of a relationship where ‘the parties have so moved 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.
The issue, as it seems to me, is the nature of the union rather than how it manifests itself in quantities of joint time. It is the nature of the union – the merger of two individual lives into life as a couple – that lies at the heart of the statutory considerations and the non-exhaustive nature of them and, in turn, a finding that there is a ‘de facto relationship’.
The Evidence And Witnesses
The applicant relied on the following affidavits:
(i)Mr Malcher sworn on 29 March 2012 and 1 May 2012;
(ii)Mr A Malcher (the applicant’s father) sworn 29 March 2012;
(iii)Mr W (a family friend of the applicant) sworn on 29 March 2012.
All of these witnesses gave oral evidence.
The respondent relied on the following affidavits:
(i)Ms Seares sworn 28 February 2012 and 23 April 2012;
(ii)Mr L (the respondent’s ex-husband) sworn on 4 April 2012;
(iii)Ms R (a friend and the landlord of the respondent) sworn on 12 April 2012.
Only the respondent was required for cross-examination.
Consideration
It was common ground that the parties engaged in a relationship, to which there was a sexual component, between November 2004 and November 2011. The respondent maintained that the relationship was “a social/sexual relationship only” at all times. As noted, the applicant contended that a de facto relationship existed between June 2007 and November 2011.
Between early 2006 and April 2007 the parties spent time together at the applicant’s apartment in Suburb T and the respondent’s home at Suburb S. The respondent maintained that she spent an average of two nights per week at the applicant’s apartment. She did not deny his evidence that they spent every second weekend at Suburb S with his children during this period. The applicant alleged that they spent “up to” four nights per week together at Suburb T or Suburb S. Essentially, the parties agreed on the amount of time which they spent together during this period.
The respondent’s ex-husband, Mr L, deposed that she spent an average of one night per week away from him between late 2005 and April 2007. His evidence was thus inconsistent with that of the respondent.
The parties agreed that the respondent spent several weeks at Suburb S after she separated from her husband in April 2007. The applicant assisted the respondent to move her belongings from her former matrimonial home to the Suburb S property.
The respondent’s evidence was that she spent four to five nights per week at the applicant’s Suburb T apartment between June/July 2007 and February 2008. There was no suggestion of any change to the arrangement whereby they spent weekends at Suburb S and were accompanied by the applicant’s children every fortnight.
In 2007 the respondent obtained a key to the applicant’s apartment and rented a nearby garage to house her new motor vehicle. It was common ground that they shared the cost of their food equally during this period. The parties gave conflicting evidence as to whether they shared the cost of rent and utilities for the Suburb T apartment.
In his affidavit of 1 May 2012 the applicant deposed:
[The respondent] paid one-half of the rent and utilities with cash while she lived at [Suburb T]. Upon moving in we obtained a second set of entry keys to access the unit. [The respondent] would often pay for groceries which we would square up with rental costs on a regular basis. I also resided at [Suburb S] with the children on the weekend …
In his oral evidence the applicant said that the respondent “did not specifically pay for utilities at [Suburb T]” and that “we shared the food costs – we worked it out so that it was equal”. The respondent denied that she contributed to the cost of utilities and rent. I am inclined to the view that there was some intermingling of the parties’ finances between June/July 2007 and February 2008, in circumstances where they occupied the same premises for most of the time.
The respondent maintained that she actively sought a residence in the city during the period when she occupied the applicant’s Suburb T apartment. She is the proprietor of a successful business at Suburb H.
The applicant gave evidence that he asked the respondent “to get a place together” before she moved into accommodation at Suburb Y in February 2008. She, however, responded that she “had not fully got over her relationship with [Mr L] and wanted her own place”. It was common ground that the applicant at no stage had a key to the respondent’s premises at Suburb Y.
There was a dispute as to the amount of time the parties spent together in the period February 2008 to December 2010. The applicant contended that they spent four nights per week together at Suburb Y, Suburb T or Suburb S. The respondent alleged that the applicant stayed with her at Suburb Y on one night a week and that she spent one or two nights per month at Suburb T. There was no suggestion of any change to the arrangement whereby the applicant and his children spent alternate weekends with the respondent at Suburb S.
The respondent’s friend and landlord, Ms R, deposed that she imposed a condition that a guest could stay in her premises on only one night per week. The applicant maintained that he and the respondent became friendly with Ms R and she waived this condition. This proposition was not put to Ms R.
Ms R deposed that she was in a position to observe whether the respondent was in the premises and that her dog barked whenever anyone approached the home. She maintained that the respondent was absent for an average of one night per week. This evidence was untested.
The applicant gave undisputed evidence that he and the respondent spent the following holidays together:
• December 2007 – five days at Suburb S with the children
•August 2008 – four days with the children at a ski lodge in the Snowy Mountains
•September 2008 – four weeks in Europe
•December 2008 – five days at Suburb S with the children
•June 2009 – eight days on the Southern Coast of Queensland
•September 2009 – eight days with the children at a ski lodge
•October 2009 – an unspecified period in Los Angeles and New York
•December 2009 – five days at Suburb S with the children
•July 2010 – eight days with the children at a ski lodge
•October 2010 – eight days in North Queensland
•December 2010 – five days at Suburb S with the children
•August 2011 – four days in the Snowy Mountains
•September 2011 – eight days at a ski lodge with the children.
Prior to the trip to Europe in 2008 the respondent provided the applicant with a supplementary Amex card to enable him to obtain free travel insurance. He retained this card until November 2011, when it was cancelled by the respondent. She said that he gave her cash to cover any purchases which he charged to the card and she paid the bills.
It was common ground that the parties inspected various properties, with a view to a joint purchase, prior to their moving into the Suburb M home together in December 2010. The respondent conceded that “for a few months prior to December 2010 we looked at various properties”.
After the respondent separated from her husband in April 2007 the parties engaged in an exclusive sexual relationship. The respondent suggested that “a girlfriend” contacted the applicant while the parties were on holiday in Europe in 2008. He denied that he had any romantic involvement or sexual contact with this person and there was no evidence to the contrary.
The applicant gave uncontradicted evidence that the parties attended social events together between 2006 and 2011 and that they took his children on outings during that period. They attended weddings, including that of the applicant’s brother. They took his parents and brother and his fiancé on a boat cruise in Sydney harbour, attended her niece’s engagement party and her brother’s wedding anniversary in Western Australia and travelled the Great Ocean Road with her father and step-mother. They went on a harbour cruise with the children in a large group and took them to Luna Park.
The respondent maintained that she accompanied the applicant to weddings because he required a partner and that the other social occasions were “instigated by [the applicant] in relation to his friends and family”. She contended that she retained a separate group of friends throughout the relationship and socialised with them on occasions in the absence of the applicant.
In my view this evidence of the respondent does not sit comfortably with the applicant’s uncontested account of the holidays and social activities in which they engaged together. She chose to travel to Western Australia with him in about December 2008 and have him attend her niece’s engagement party and her brother’s wedding anniversary. In 2008/2009 he accompanied her to the funeral of a close friend, which was attended by only twenty-five people.
It seems to me to be inherently unlikely that the respondent would involve a person with whom she had only a “social/sexual relationship” in such a significant event as a small funeral for a close friend or to travel to other side of the country with him to attend important events in her family. The respondent conceded that the applicant had contact with her father and stepmother on approximately eight occasions.
Similarly, it seems unlikely to me that the respondent would make available to the applicant and his children her house at Suburb S and her use of a ski lodge for regular weekends and holidays for a period of approximately four years. I have difficulty with the concept that a “social/sexual relationship” includes mutual care of and enjoyment of activities with one party’s children over that period of time.
The respondent agreed that she spent money on the applicant’s children, in amounts which increased from 2007. As noted, she made her home at Suburb S available to the children for some five years. She chose to take holidays with the applicant and his children on three occasions at a ski lodge of which she is a member. She accommodated the children at Suburb S for five days in December in each of 2007, 2008, 2009 and 2010.
On 22 June 2011 the respondent executed a document which set out her testamentary intentions. Relevantly this document provided:
[The applicant] is to have the properties at [Suburb S] and [Suburb M]. [Suburb M] can proceed with the sale if he so chooses. [The applicant] can have any monies in my personal bank accounts.
[The applicant] is to have the property at [Suburb P] and can sell it if he so chooses.
The respondent executed another testamentary document on 12 November 2011 which stated:
I would like to leave everything to my mother [Ms P Seares].
On the respondent’s version of events she elected to make substantial testamentary provision for the applicant only six months after the parties entered into a de facto relationship and five months prior to their separation. It seems to me to be inherently unlikely that she would do so without a background of a much more committed relationship than she now presents to the court.
I am satisfied that there was some intermingling of the parties’ finances between 2007 and November 2011. As noted, I am of the view that they shared expenses in addition to the cost of food when the respondent occupied the applicant’s Suburb T apartment for four of five nights per week between June/July 2007 and February 2008. The applicant held a supplementary American Express card from at least August 2008 until November 2011. He charged purchases to this account, for which he paid cash to the applicant. The respondent conceded that the parties inspected properties together with a view to joint ownership from about mid 2010. The respondent also conceded that she contributed to the expenses of the applicant’s children on their regular visits to her home at Suburb S.
Conclusion
For all the above reasons, I am satisfied that the parties shared a much more committed relationship between mid 2007 and November 2011 than the respondent would have the Court accept. I am persuaded that they spent weekends and regular holidays at her Suburb S property with the applicant’s children. His evidence that the respondent involved him in two significant events in her family and a small funeral for a close friend was unchallenged. Her evidence was that he had contact with her father and stepmother on eight occasions. She chose to attend events in his family, including weddings and Christmas Eves at the home of his parents. There was some intermingling of the parties’ finances. It is plain that the parties attended numerous events as a couple, some of which involved the applicant’s children, over a period of four to five years.
I find that the parties lived in a de facto relationship for a period in excess of two years between June 2007 and November 2011 for the purposes of section 90SB of the Family Law Act 1975.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 3 August 2012
Associate:
Date: 2 August 2012
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