McAllister & McAllister
[2022] FedCFamC2F 901
Federal circuit and family Court of Australia
(Division 2)
McAllister & McAllister [2022] FedCFamC2F 901
File number(s): MLC 12571 of 2020 Judgment of: JUDGE STEWART Date of judgment: 13 July 2022 Catchwords: FAMILY LAW – jurisdictional pre-requisite of de facto relationship which broke down after 2009 – parties maintain separate residences from 1999/2000 – whether relationship exists – disputed date of separation – date of breakdown of de facto relationship 2020 Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4AA, 4AA(1)(c), 4AA(2), 4AA(4), 4AA (5)(b)
Cases cited: Fairbairn & Radecki [2022] HCA 18
Hayes & Marquis [2008] NSWCA 10
Jonah & White [2011] FamCA 221
Division: Division 2 Family Law Number of paragraphs: 90 Date of hearing: 9 & 10 December 2021 Place: Melbourne Counsel for the Applicant: Mr G Combes Solicitor for the Applicant: FE Lawyers Counsel for the Respondent: Mr Hall Solicitor for the Respondent: Saines Lucas Solicitors ORDERS
MLC 12571 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MCALLISTER
ApplicantAND: MS MCALLISTER
Respondent
order made by:
JUDGE STEWART
DATE OF ORDER:
13 July 2022
THE COURT ORDERS THAT:
Pursuant to section 90RD of the Family Law Act 1975 (Cth) a de facto relationship is declared to have existed between the parties between the dates of 1990 and 17 May 2020.
The date of the breakdown of the parties’ de facto relationship is declared to be 17 May 2020.
The parties attend a Conciliation Conference with a Registrar of this Court at the Melbourne Registry on 19 October 2022 at 9:00am.
Unless otherwise exempted from payment the Applicant must pay the Conciliation Conference fee in accordance with the Family Law (Fees) Regulation 2012 prior to the Conciliation Conference.
Each party must provide the other party and the Court at least 3 days prior to the Conciliation Conference, a summary that they intend to rely upon at the conference setting out a list of assets, liabilities and superannuation together with current values, their proposal for division of those assets, liabilities and superannuation and details of the relevant matters set out in section 79(4) of the Family Law Act 1975 that reflect such proposal.
Each party must exchange at least 21 days before the Conciliation Conference an appraisal of any asset in dispute, in particular:-
(a)the former matrimonial home;
(b)other real estate;
(c)business;
If there is no agreement as to the value of the assets after the exchange of market appraisals, the parties must obtain at least 14 days prior to the Conciliation Conference, an opinion as to the value by an agreed valuer of the:-
(a)the former matrimonial home;
(b)other real estate;
(c)business;
and such valuations may be joint valuations if agreed between the parties.
The proceedings are listed for Final Hearing for 3 days commencing 6 February 2023 at 10.00am.
The Applicant file and serve any Amended Application, all affidavits and an updated Financial Statement upon which they seek to rely by no later than 28 days prior to the Final Hearing.
The Respondent file and serve any Amended Response, all affidavits and an updated Financial Statement upon which they seek to rely by no later than 14 days prior to the Final Hearing.
The Applicant file and serve any material in reply no later than 7 days prior to the Final Hearing.
Each party file and serve a case outline by no later than 2 days prior to trial and provide a copy in Word format to [email protected] .
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym McAllister & McAllister has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge Stewart
In 1990 the parties, then aged around 39 years and 35 years respectively met in Queensland and in early 1990 commenced living together on a genuine domestic basis. There is no doubt that between 1990 and 1999/2000 the parties’ relationship fell within the definition of a de facto relationship pursuant to section 4AA of the Family Law Act 1975 (Cth) (“the Act”) which was introduced by amendments to the Act on 1 March 2009. The real controversy between the parties is when their de facto relationship broke down. The Applicant asserts that the parties’ de facto relationship broke down on a final basis on 17 May 2020. The Respondent says that she and the Applicant finally separated on 9 August 1999. The difference is critical in this case, as it was not until 1 March 2009 that jurisdiction was conferred on this Court pursuant to the Act with respect to financial matters between parties to a de facto relationship which has broken down. If the breakdown of the parties’ de facto relationship occurred prior to 1 March 2009, this Court cannot exercise jurisdiction.
Nothing is ever simple, not the least of which is that the parties maintained separate residences from either 1999 (on the Respondent’s case) or 2000 (on the Applicant’s case). There are a number of areas where there is little or no factual dispute between the parties but rather the differences between the parties is more a matter of perception. There are some areas where the evidence diverges and the evidence of the parties spans their recollections over two decades.
The Applicant was born in 1951 in Country B and he is 70 years old. He is in poor health and suffers from type 2 diabetes, other medical conditions and has chronic pain in his lower back, knees, shoulders and has had numerous surgeries as a result of a car accident he was involved in, in around 1985. He takes various medications and experiences issues with his memory. He is not engaged in significant remunerative employment and is reliant on Centrelink benefits for his own support.
The Respondent was born in 1955 in Country C and she is 66 years old. She is in general good health save that she suffers from stress as a result of these proceedings. She is employed as an administration officer.
The Applicant has an older daughter from a previous marriage who is now in her late thirties and the Respondent has two children from a previous marriage now aged 40 and 35 years respectively. Together, the parties have two sons, Mr D and Mr E who are 31 and 26 years old. Mr E lives independently. At the time of hearing, Mr D and his fiancé lived with the Respondent at what was the former matrimonial home (for want of a better description in a de facto relationship case) at F Street, Suburb G (“the F Street, Suburb G property”).
The key issue in this case is the date upon which the de facto relationship between the parties broke down. Did it break down in 1999/2000 or in 2020? This issue arises in the context of there being no dispute that the F Street, Suburb G property was transferred from the joint names of the parties into the Respondent’s sole name in late August 1999. There is no dispute that from that time forward the Applicant maintained a separate residence to the F Street, Suburb G property. Nor is there a dispute that the parties’ maintained a relationship of sorts over the next two decades which involved caring for the children together, socialising together and as the Applicant aged the Respondent providing care for him.
There is a dispute as to the nature and extent of the parties’ relationship over those two decades. There is no dispute that, whatever the nature, extent and characterisation of the parties’ relationship was over these last two decades was, that the relationship has now finally broken down in May 2020. As far as I can gather the parties are no longer friends or have any sort of ongoing relationship.
the meaning of a de facto relationship
Section 4AA of the Act provides for the meaning of a de facto relationship. Pursuant to that section, a person is in a de facto relationship if:-
(a)the persons are not legally married to each other; and
(b)the persons are not related by family; 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.
The Applicant and Respondent fulfil the first two criteria. The real dispute in this case is whether or not they were a couple living together on a genuine domestic basis, post 1999/2000 and post the jurisdictional starting barrier in 2009.
The Act sets out a number of circumstances to discern whether persons have a relationship as a couple. The list is not exhaustive but may include:-
(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)Whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(f)The care and support of children;
(g)The reputation and public aspects of the relationship.
The criteria set out above will be considered by me for the period post 1999/2000 as being relevant factors to take into account in determining whether the parties’ relationship as a couple endured beyond that time.
It seems to me that in order to establish whether the parties are or have been in a de facto relationship is twofold. First they must have a relationship as a couple. Second, they must have lived together on a genuine domestic basis. In saying that I am conscious that the expression set out in section 4AA(1)(c) of the Act should be read as a whole and having regard to a wide range of circumstances.
The Court has a wide discretion in determining whether a de facto relationship exists. Section 4AA(4) of the Act states:-
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.
In determining whether a relationship as a couple existed between these parties beyond the 1999/2000 period there are other unique features beyond the criteria set out above which should also be considered.
In order to establish an ongoing de facto relationship it is not necessary that the parties maintain a single residence together and nor does it require the parties to live together full time (see Hayes & Marquis [2008] NSWCA 10). That would also seem obvious having regard to the provisions of section 4AA (5)(b) of the Act which contemplates the possibility of a de facto relationship existing when the person is in another de facto relationship.
If there were any doubt about this issue it has been put beyond doubt by the recent High Court decision in Fairbairn & Radecki [2022] HCA 18 where their Honours specifically rejected the submissions that “living together” requires cohabitation at some place and in some way or that such circumstance was “an irreducible minimum of what a de facto relationship, as defined, must continuously display”.
In specifically rejecting that submission their Honours said (at paragraphs 32 to 35 inclusive) under the Heading “The need for cohabitation”:-
32. The appellant's primary argument that the parties' de facto relationship had broken down when the appellant was placed into an aged care facility such that the parties were no longer physically living together must be rejected. It is contrary to the text of s 4AA and to statutory context and purpose to which reference has been made. It is also contrary to real-world considerations. It would be productive of injustice if two people who live apart (including for reasons of health) were incapable of remaining in a de facto relationship.
33. Living together for the purposes of s 4AA(1) will often, perhaps usually, mean cohabitation of some residence by a couple for some period of time. But cohabitation of a residence or residences is not a necessary feature of "living together". That phrase must be construed to take account of the many various ways in which two people may share their lives together in the modern world [26]. Two people, for any number of reasons, may not reside in the same residence, but nonetheless be in a de facto relationship in the sense required by s 4AA.
34. The fact that here the appellant was placed into an aged care facility may be relevant to the existence or breakdown of a de facto relationship under the Act , but it could not, of itself, be determinative of that issue. The same observation applies to the decline in the appellant's cognitive ability.
35. Two decisions support the proposition that physical cohabitation at a single home or homes is not a necessary feature of an ongoing relationship whether by way of marriage or otherwise; it is not an irreducible minimum that all relationships must exhibit.
THE HEARING
There have been many matters referred to by the parties in these proceedings. I have not been able to include every piece of evidence I heard or matters on which there was evidence in these reasons. If I have not referred to something in these reasons does not mean that I did not have regard to it. I have taken all the evidence into account.
In these reasons, unless it is clear from the context that is not so, a statement of fact is a finding of fact.
Pursuant to section 140 of the Evidence Act 1995 (Cth), the standard of proof is to a balance of probabilities.
the evidence
The parties were legally represented.
The Applicant relied on his own evidence and was cross-examined. The Applicant also relied on the affidavit filed by his friend Mr H (“Mr H”), who was also cross-examined.
The Respondent relied on her own evidence and was cross-examined.
The hearing proceeded electronically via Microsoft Teams as it took place during the COVID-19 pandemic at a point when court proceedings were still proceeding remotely in line with Government restrictions at that time. Both parties appeared via Microsoft Teams and were represented by Counsel. There were no technological issues that significantly impacted the running of the case aside from the usual negotiation and patience required to conduct proceedings remotely. I am satisfied that the proceedings took place in a way that was procedurally fair and in a fashion that was understood by both of the parties. I am satisfied that I was able to adequately assess the witnesses and understand their respective evidence. I am satisfied that all parties abided by the directions of the Court as to the presence of other witnesses and other parties or persons in the room while they were giving evidence.
I shall refer to the evidence of the parties and my impressions of them both individually and generally when assessing the issues in these proceedings. I shall refer to the evidence of the Applicant’s additional witness when assessing the issues to which his evidence relates.
Accordingly I now turn consider the evidence of the parties. There are some important areas where the parties agree or largely agree which are to be factored into consideration. There are also some areas where there was no serious challenge to factual matters alleged.
At first instance there is no dispute that the parties’ relationship between 1990 and 1999/2000 was a genuinely committed relationship where the parties lived together, acquired property and had their two sons.
The Applicant sets out in his affidavit the property he came into the relationship with, including:-
(a)A residence at J Street, Suburb K (“the J Street, Suburb K property”) in the Region L of Melbourne which he had purchased in 1986 for $87,000. He had purchased that property with part of the proceeds of a Transport Accident Commission (“TAC”) award received by him in or around 1986 which was in the total sum of $200,000;
(b)Motor vehicles which he estimated to be worth around $23,300;
(c)A caravan which he estimated to be worth around $4,500;
(d)Personal possessions which he estimated to be worth $10,000; and
(e)Savings of approximately $50,000.
By way of contrast the Applicant said that the Respondent did not have any assets of significant value or liabilities at the commencement of cohabitation.
In her affidavit of 26 November 2021 the Respondent makes an across the board and unspecified denial of the matters contained in the Applicant’s affidavit of 6 September 2021. That simply cannot be correct as there are numerous facts and matters referred to in that affidavit which are uncontroversial. Nevertheless there was no challenge to the Applicant’s position that he entered the relationship with more assets than the Respondent and there appears to be general agreement that the Applicant received the TAC payout before the parties commenced their relationship and cohabitation. Accordingly it seems likely that the initial financial contributions of the Applicant were significant and provided the funds with which the F Street, Suburb G Property was acquired.
The parties lived in the Applicant’s J Street, Suburb K property for a year or so until 1991. The J Street, Suburb K property was then sold for $86,000 and those proceeds were applied to the purchase of the F Street, Suburb G property for a purchase price of $140,000 with the remainder being funded by way of mortgage from the ANZ Bank. The F Street, Suburb G Property was initially registered in the joint names of the parties.
Between 1990 and 1999 the parties made all sorts of direct contributions to the acquisition, conservation and improvement of the parties’ property and the welfare of the family generally. The Respondent’s children lived with the parties and there was litigation regarding those older children’s living arrangements which was funded by the parties. The Applicant was employed outside of the home at Employer M and later as a transport worker. He ceased remunerative employment in 1995. The Respondent was employed as an administration officer.
Although the Respondent in her sworn affidavit material seeks to elevate her contributions post 1995 as superior to the Applicant’s, there can be little doubt that each of the parties made significant contributions during the period 1990 to 1999/2000 and that a property adjustment, had it occurred around that time would have been inevitable and might even have favoured the Applicant due to his superior initial financial contributions.
In the period prior to 1999/2000 the Respondent cites marital difficulties and personality issues with the Applicant which contributed to unhappiness in the relationship. There are some divergent factual issues between the parties as to what was occurring at that time. From the Applicant’s point of view, upon ceasing employment in 1995 he took on the primary home duties role in caring for the children and the home whereas from the Respondent’s perspective she was working hard to support the family financially and also carried the greater burden within the home. Ultimately, these issues are more relevant to any prospective property division than the date of relationship breakdown although I suspect the unhappiness referred to by the Respondent is designed to make the alleged date of separation more explicable. Having observed the Applicant in Court and considering all of the matters put, I can well accept that he has some difficult personality traits which caused disharmony and discontent. I am not of the view that the relationship between the parties was sublimely happy in those early years but such is the nature of human relationships.
In the midst of what appears to be a difficult period in the parties’ relationship and in or around 1997 the Applicant became embroiled in a dispute with a neighbour which became litigious. In her affidavit filed 26 November 2021, the Respondent said as follows:-
9. In or around 1997, [Mr McAllister] became involved with a dispute with our neighbour. This dispute developed in to a feud which culminated in court proceedings. I felt that [Mr McAllister] became obsessed with the situation with the neighbour. His behaviour became unbearable and the atmosphere within our home and its surrounds was toxic. The situation became worse with each passing day, our arguments became more frequent and intense, and I held concerns for the wellbeing of our children. We sought counselling through my employer, and also from Family Services at the [N Council]. Ultimately, the counselling was unsuccessful and I told [Mr McAllister] that I was not able to continue in the relationship and asked him to move out.
10. On 9 August 1999, [Mr McAllister] moved out of the [F Street, Suburb G] property. [Mr McAllister] couch-surfed for some time before moving in to housing commission flats, where he has remained since.
The Applicant also acknowledges the dispute with the neighbour and stated in his affidavit filed 10 September 2022:-
23. I left the [F Street, Suburb G] property in June 2000 due to constant harassment by a neighbour. The harassment led to proceedings initiated in Court and I was advised by my solicitors at the time that the neighbour was opportunistic and motivated by what he saw as an opportunity to seek a payout from me given that I owned real estate. I was advised by my solicitor to transfer the family home to [Ms McAllister] and to leave the area to put an end to the neighbours unrelenting litigation and abuse. I had full trust in [Ms McAllister] and agreed to do this. The consideration was as a gift and at the time I signed a statutory declaration confirming we were in a permanent and bona fide relationship.We redrew on the home at the time approximately $18,000 to cover legal fees.
Annexed hereto and marked "-1" is a true copy of the signed Statutory Declaration and Transfer of Land.
24. I vacated the property and resided at [Suburb O] with the children as [Ms McAllister] was at work during the day. In the evenings we would go to the [F Street, Suburb G] property and sleep there.
The signed transfer of land executed by the parties describes the consideration for the transfer as “The desire of the Transferor to make a gift to the Transferee” and the Applicant transferred all of his estate in fee simple in the F Street, Suburb G Property to the Respondent. The transfer is undated. Each of the parties agreed that the transfer took place upon the advice of their solicitor to attempt to put the F Street, Suburb G Property out of the reach of the neighbour for any compensation and/or debt which might arise as a result of the dispute. The Respondent said in her affidavit “I concede that one of the reasons that the F Street, Suburb G property was transferred in to my sole name was to protect it from repossession as [Mr McAllister] had incurred significant debt in legal fees arising from his feud with the neighbour”. The Respondent told me during her evidence that the F Street, Suburb G Property was transferred into her name on the basis that a solicitor who was jointly consulted advised to do so as the Applicant had incurred a lot of debt. During her evidence, the Respondent said she did “not recall exactly what the solicitor said but [she] believed at the time it was the best option for us to do so [put the property in her sole name]”. The Applicant also told me that the solicitor was sourced by the Respondent through her employer.
Referencing the transfer of land the Applicant executed a Statutory Declaration which is dated 15 July 1999. It is short and reads as follows:-
IN THE MATTER of the Stamps Act
and
IN THE MATTER of a Transfer of Land from MR MCALLISTER to MS MCALLISTER
in respect of the land in Certificate of Title Volume … Folio ...
I, MR MCALLISTER of F Street, Suburb G, in the State of
Victoria, DO SOLEMNLY AND SINCERELY DECLARE as follows:-
1.That I am the Transferor in the above Transfer of Land.
2.That the Transferee Ms McAllister and I are living together on a permanent and bona fide domestic basis.
3.That no other person takes or is entitled to take an interest in the property in pursuance of the said Instrument of Transfer.
AND I make this solemn declaration conscientiously believing the same to be true and by virtue of the provisions of an Act of the Parliament of Victoria rendering persons making a false declaration punishable for wilful and corrupt perjury.
Although conceding that one of the reasons the transfer took place was to protect the F Street, Suburb G Property from creditors the Respondent goes on in her affidavit to say “I also believed however that it was a common intention of ours for the F Street, Suburb G property to remain with me as part of our financial settlement, for the sole use and enjoyment of myself and the children.” She said in her evidence at first instance the property was a gift to her and also a financial settlement (at around the time she asserts to be the breakdown of the de facto relationship) while again conceding the transfer was “partially” to protect the asset. I do not accept the Respondent’s evidence that the Applicant moved out of the F Street, Suburb G Property on or around July 1999, making the transfer of the F Street, Suburb G Property into her sole name relatively contemporaneous with that event. I find it unlikely that the transfer of the F Street, Suburb G Property into her sole name was either a gift or a financial settlement after considering the following factors:-
(a)The Respondent was involved in the transfer transaction, the advice for which was to solely protect the asset from a creditor. She knew that was the purpose and there is no suggestion that any advice received related to a financial settlement between the parties;
(b)Although clearly it records a declaration of the Applicant alone, it is likely that the Respondent was aware of the statutory declaration executed by the Applicant at the same time. The document records that the parties are living together on a permanent and bona fide domestic basis. It is unlikely that the Applicant would have made that statement if the transfer was truly to reflect some sort of financial settlement to the Respondent and in circumstances where on the Respondent’s case the Applicant had moved out of the home and separation had occurred some 18 days earlier;
(c)The Applicant records his address as the F Street, Suburb G Property which suggests that he was still living there at the time;
(d)Beyond the assertion that the Respondent believed the transfer was a gift to her, a financial settlement and a statement in her evidence that the Applicant achieved the peace of mind in knowing the house would belong to the children, there is no further particularity surrounding the concept of a gift or a financial settlement. Whilst recognising the passing of the years since that time, I would have expected as much particularity as could be mustered surrounding this issue. If it were truly a gift I would have expected some attempt to particularise discussions surrounding the same. If it were truly a financial settlement it seems unusual and unlikely that it took place absent negotiations and in the complete absence of anything being “settled” on the Applicant, particularly when the F Street, Suburb G Property represented the parties’ lifetime accumulation of wealth to which the Applicant had made a significant contribution;
(e)Although the evidence is not completely clear it seems that the Applicant’s debt was in the vicinity of $100,000 at the time of the transfer. It seems unlikely that the Applicant would relinquish his just entitlement to the remainder of the then net property of the parties, bearing in mind the F Street, Suburb G Property had been purchased some 9 years earlier for more than that and the Respondent likely had superannuation entitlements;
(f)Given the Respondent’s concession that she gambled large sums of money, which she said she did in the company of the Applicant, her statement that the property was to be protected for the children strikes as disingenuous. She conceded there was no trust arrangement to hold the property on trust for the children and I note that post 1999/2000 when the F Street, Suburb G Property was unencumbered, the Respondent agreed that the property had later been mortgaged four times between 2003 and 2015.
I do not accept that the transfer of the F Street, Suburb G Property was either a gift or a financial settlement. It is more likely that it was an attempt to put the property out of reach of the marauding neighbour (in the parties’ view) and the transfer was for the benefit of both of the parties to protect their joint asset.
This then brings me to the dispute between the parties as to the date of separation with the Respondent asserting 9 August 1999 and the Applicant asserting the year 2020.
The Respondent’s position in relation to the transfer seems to be designed to make the transfer as a financial settlement as being explicable by its proximity to an alleged separation. On this issue I think it is more likely that the parties remained together for a period of time following this event and the parties physically separated some time later. While I cannot be sure that the date of physical separation occurred precisely as is put by the Applicant I think it is unlikely to be the date put by the Respondent. I am also not suggesting that the Respondent has deliberately lied. I think it is more likely that she has constructed a scenario designed to suit her case and probably her belief that their de facto relationship ceased all those years ago, in the face of the very real prospect of adverse financial consequences to her. In a general way I also note that the Respondent had a tendency to elevate matters which might be perceived to advance her case and minimise matters which might be perceived to detract from her case.
That is not to say that the Applicant was a reliable witness; he was not. He has conceded memory problems, significant health problems and although chronologically 70 years old he had not fared well in the aging process. At times he struck as confused and simply lacked specific recollection of certain events. For instance the Applicant conceded that the neighbour moved away from the F Street, Suburb G Property in 1998 rendering his position that he moved to physically get away from the neighbour as illogical and unlikely. I think it is likely that the parties were experiencing some level of unhappiness at that time and that the Applicant was difficult. The Respondent said that “I felt overworked and overwhelmed and this had become the cause of significant unrest between Mr McAllister and myself.”
I have also formed the view that each of the parties have a degree of disrespect for authority and are prepared to make false statements for their own advantage.
The irony of the credibility issues is that to a large extent the matters which go to whether the parties continued their de facto relationship post 2000 are largely (but not entirely) agreed and the differences between the parties is their subjective views of the nature of their ongoing relationship and the emphasis they place on a number of events, facts and matters. In other words the assessment revolves less around credibility and more around perception, emphasis and ultimately the Court’s objective assessment of what are undoubtedly a set of facts which are capable of a different understanding of the nature of the relationship by both of the parties. To that extent I am satisfied that each of the parties were being truthful in their different subjective perceptions of what their relationship was, at least at the time of hearing.
After the Applicant left the F Street, Suburb G property, he moved into accommodation in Suburb O, where he resided for "less than six months". During cross examination, the Applicant gave evidence that at that point, the Respondent asked him to return to the family home. The Applicant said that once the Respondent had seen the quality of the Suburb O property, that she invited the Applicant to return to living in the F Street, Suburb G property.
The evidence surrounding this issue is contradictory. Under further cross examination, the Applicant was questioned as to why this information was not included as part of his filed material. It came to light that the Applicant held the tenancy at the Suburb O property for a period of around three to four months, but after that, he took up government funded commission housing accommodation in Suburb P, where he resided for 15 years, until around 2016. After that, the Applicant moved into his current residence in Suburb Q, where he is able to reside on a long term basis. The Applicant accepted this was also government funded housing. I suspect that the Applicant is an unreliable historian due to his impaired cognitive functioning as a result of the motor vehicle accident he was involved in many years ago and that these inconsistencies in his evidence arise out of that issue, rather than any attempt made by him to be deliberately misleading.
The Applicant recalled attending relationship counselling in 1999 with the Respondent, however denied that his vacating the F Street, Suburb G property was a result of that process and relationship breakdown. The Applicant maintains that the parties engaged in counselling due to the ongoing dispute the Applicant had with the neighbour at the time. The Applicant gave evidence that around that time, the parties were arguing a lot. The parties were trying to protect the house. The Applicant said that “if the police had done a proper job of protecting me and my family”, that he would “never have left”. The Respondent states that the neighbour left the area in 1998, which would place the date the Applicant vacated the property as being after the neighbour had already left. During his evidence, the Applicant could not recall the date or year he vacated the F Street, Suburb G property.
When it was put to the Applicant that problems arose in the relationship between 1995 and 1999 due to him not contributing adequately to the household, he denied this. The Applicant said that he did not engage in paid work beyond 1995 because he was a “full-time house Husband”.
The Respondent was asked, if it were a property settlement, then what did the Applicant receive in such settlement? The Respondent answered saying that the Applicant benefited from the “peace of mind”, living “happily as friends”, not having to pay child support and “knowing that the house belonged to the children”.
It is the Respondent’s position that the cessation of a common residence heralded the breakdown of the de facto relationship. I pause here to observe that in these reasons I shall attempt not to use the terms “relationship” and “de facto relationship” interchangeably. There is little doubt that the parties were in a relationship of sorts for around 30 years. There is little doubt that relationship changed in 1999/2000 if only because the parties no longer shared a joint residence. The Applicant asserts that the relationship commenced in 1990 and that final separation or breakdown occurred on 17 May 2020. If these dates are accepted then the duration of the de facto relationship would be 30 years or thereabouts.
The Respondent asserts that the relationship commenced in 1990 and that final separation occurred on 9 August 1999. If these dates are accepted then the duration of the de facto relationship would be 9 years or thereabouts.
The parties maintained a common residence at least until 9 August 1999. The date that the Applicant moved out of the F Street, Suburb G property is somewhere between 9 August 1999 and June 2000. I cannot be more precise about that however the conclusion of the parties sharing the F Street, Suburb G Property was likely after the execution of the Statutory Declaration as I have set out. After the Applicant vacated the F Street, Suburb G property, the parties maintained separate residences, with the Respondent residing at F Street, Suburb G and the Applicant residing at an address in Suburb O. The Applicant maintains the children were with him at the Suburb O property as the Respondent was at work during the day. The Applicant asserts that in the evenings, they would all go to the F Street, Suburb G property and sleep there. The Applicant maintains that despite living in two separate residences, that the parties saw each other almost daily and that they would mostly sleep at either of their residences, together.
The fact that the parties maintained a separate residence is one factor that would suggest that the parties were not residing together on a genuine domestic basis. This issue is not determinative and the maintenance of separate residences does not necessarily preclude the existence of a de facto relationship as I have set out above.
The parties maintained their relationship post 1999/2000 and there was much focus during the proceedings on how much time they spent in each their separate residences, how much time they spent together, financial interdependence, the care of their children during their childhoods and how they presented to the outside world. These issues must be considered in the context of the pre-existing de facto relationship.
Although we see relationships breakdown with a bang, if this de facto relationship has broken down at all before 2020 it has done so with a whimper (with apologies to T.S Eliot). The parties lives remained intertwined even after their children were grown. They spent a good deal of time in each other’s homes, there were elements of financial interdependence, they socialised together, gambled together, maintained their sexual relationship (although when that ceased and the frequency of intimate relations was in dispute), were generally concerned for the other’s welfare, gave each other gifts, and spent special occasions together. At one point the Respondent became the Applicant’s registered carer with Centrelink. Although none of these features in and of themselves would be determinative of whether a de facto relationship exists, cumulatively they tend to indicate that the parties continued their life as a couple.
Although minimised by the Respondent, I accept the evidence of the Applicant that the parties spent time in each other’s home in each other’s company and sharing the care of the children. From around 2003 when the children would have been aged around 7 and 12 respectively the Applicant assumed the majority of care of the children because the cost of day care was prohibitive. The Applicant would regularly pick up the children and deliver them to the F Street, Suburb G property spending time there on a relatively ad hoc basis and at least sometimes staying the night. From time to time the children lived during the week with the Applicant at the rented premises and at the F Street, Suburb G Property on weekends. The parties shared the care of the children as was necessary each assisting, supporting and helping with their care, not dissimilar to parenting arrangements which might have existed if the parties shared a residence. The parties enlisted the support of the Applicant’s witness Mr H who, when the children were younger, would have them at his car yard for collection by the parties or either of them.
I also accept the evidence of the Applicant that he continued to perform maintenance at the F Street, Suburb G Property such as maintaining the yard and driveway cleaning the gutters, cutting down trees and he assisted with the cleaning and maintenance on the inside of the home. He said and I accept that he was involved in decision making in relation to family home. This does strike as being beyond the scope of being an occasional visitor attending by invitation only as the Respondent suggests but a rather more “occupational” involvement where the Applicant was also accepting of the occupational responsibilities for care and maintenance. It also speaks of attendance beyond caring for the children.
Following the physical separation the parties continued their sexual relationship. The Respondent minimised the extent and nature of that part of their relationship. The Respondent agreed that she and the Applicant did have an “occasional sexual relationship” but that it did not mean they were a “happy couple”. The real relevance of that is that it continued beyond 1999/2000 as in any lengthy relationship such desires can ebb and flow. There was a suggestion by the Respondent that the Applicant engaged in other relationships but this was not explored in detail and in any event the parties’ sexual relationship endured beyond that point. I am not sure of the relevance of this assertion as the tenor of the Respondent’s evidence is that the Applicant was unable or unwilling to accept the breakdown of the relationship. There is no evidence that the Respondent engaged in intimate or romantic relationships with any other person from 1999/2000.
Post 1999/2000 the parties continued a level of financial mingling although not the same as it had been during the years they shared the home. The utility bills at the F Street, Suburb G Property remained in joint names but were paid for by the Respondent. The Respondent suggested that she did not put the bills in her sole name as it did not seem to be an important detail and there were times the Applicant dealt with the utility companies on her behalf. Although not a completely implausible explanation, this does not strike as the behaviour of a couple whose relationship as a couple has broken down and the fact that the Applicant assisted in such matters speaks of a continued involvement by the Applicant in the mundane and practical issues of household functioning, even if in fact it was the Respondent paying those bills. Although not entirely clear I accept as likely that the Respondent paid the majority of bills associated with the F Street, Suburb G property, including rates. The Applicant sought to convince me that he continued to pay some mortgage and bill payments associated with the F Street, Suburb G property producing bills in the parties’ joint names but failed to produce any document such as a bank statement or credit card statement which would corroborate a personal contribution by him to those bills. One would have thought that if such documents existed they would and should have been produced. It is also clear that for the duration of the period post 1999/2000 the Respondent was almost totally reliant on Centrelink benefits for support, although he earned some additional income of an unspecified amount assisting Mr H in restoring motor vehicles for sale. The Applicant was maintaining his own residence from these sources and it does seem unlikely that he would have the resources necessary to make significant contributions to the upkeep of the F Street, Suburb G Property.
The parties did not have a joint bank account but money did flow between them which the Respondent sought to characterise as loans or reciprocal gifts. This money seems to have passed between them as needed and according to the Respondent they did not always pay each other back and sometimes they just told the other “not to worry about it”. This evidence is interesting in that as it seems that the parties may have loosely accounted to each other for the movement of funds, but as different couples structure their financial affairs in different way this hardly advances or detracts from either argument. This fluid transfer of funds between the parties included money changing hands between them for their respective gambling habits.
Assistance was also provided by the Applicant for the purchase of the Respondent’s motor vehicle with him paying the deposit and some limited insurance payments with the Respondent paying the remainder.
However, the intermingling of the parties financial affairs was not entirely the way the parties conducted their financial affairs. The Respondent regarded the F Street, Suburb G property as her own and as I have said mortgaged the property on four separate occasions drawing those mortgages in her sole name. She also received close to $200,000 from her superannuation entitlements using the money to pay various debts, the Applicant’s credit card bill and credit card debt incurred by the children. Although some of those funds were applied for the Applicant’s benefit she regarded those funds as hers alone and told me she could “do what she wanted” with that money. She bristled at the implication that the funds were depleted through gambling alone but agreed that she enjoyed gambling, and some of those funds were applied to gambling. Whether the parties’ gambling habits were/are excessive or not is beyond the scope of these reasons but that the parties engaged in gambling, exchanged funds for the pursuit from time to time and went out together to the casino to gamble regularly post 1999/2000 is relevant. It was something they enjoyed doing together as a couple.
The parties’ social interactions and presentation to the outside world were not solely confined to gambling pursuits. There was some focus in the evidence as to whether the parties were known to their friends and family as a couple. A number of photographs were submitted by the Applicant as being demonstrative of the parties presenting to the outside world as a couple. These included family photographs of the parties with their adult children at their son's graduation, and a photo of the parties sitting at a table kissing at a function. When asked about the photo of the Applicant and Respondent holding hands together on the Location R, the Respondent said “yes he asked me to hold hands, my son liked seeing us together”. When asked how she would describe their relationship at this particular point in time, the Respondent said “it was fake”. There was also a receipt for an evening at a themed dinner where the Respondent has described the purpose of the evening for “My Husband birthday 65 years old – we have been together for almost 30 years also [illegible] our son birthday 29 years old Happy Birthday for both”. This would put the event at approximately 2016. The Respondent said that the statement was explicable because she did not want to explain the complexities of their relationship to the outside world. That evidence struck as an attempt to minimise and deflect what was a difficult piece of evidence in her case.
In terms of the most recent photographs (as one photo was clearly very old) to my eye they depict a handsome, happy couple with no sense of estrangement or reticence in being close to each other. They did not strike me as being fake but rather looked natural and relaxed. Of course photographs are just snapshots in time and I suppose it is possible that one or both of the parties were simply acting for the camera but having regard to all of the evidence in this case I think that is unlikely.
When asked about the inclusion of heart Emoji icons in text messages exchanged with the Applicant, the Respondent explained that “it doesn't mean anything, [it was] to give him a little bit of making him happy but nothing more than that”. The Respondent said the same applied with respect to text messages sent by her wishing the Applicant a happy birthday in 2018. When asked about the Applicant’s declaration of love for the Respondent contained within further text messages shared between the parties, the Respondent answered that “that was his belief”. When questioned about the frequency of the text messages exchanged between the parties, and why it was so often, the Respondent explained that she “only responded [to the Applicant] when he messaged me”. When Counsel for the Applicant asked the Respondent why she continued to respond to these supposedly unwelcomed messages, the Respondent explained that she responded “as a courtesy to [the Applicant]”. The Respondent was firmly of the view that she merely replied to messages from the Applicant; she never instigated contact or conversation. In the passage of this evidence and consistent with the Respondent’s general presentation I felt she was minimising, excusing and reconstructing history to suit the case she wished to present.
The Applicant's friend Mr H filed affidavit material and was cross-examined. Mr H gave evidence that he has known the Applicant for 30 years and that during that time he knew the Applicant and Respondent to be a couple for that whole time. He said they presented as a “happily married couple”. Mr H said that he and his wife would regularly meet with the Applicant and Respondent for social occasions. Mr H said that he would often see the Applicant and Respondent together and that they would go to places together, referring to each other “Husband and Wife” and presented themselves to the outside world as a couple. Mr H said he is aware that the Applicant and Respondent would go out to eat, drink and gamble together, often frequenting the casino. Mr H estimated that he saw the Applicant and the Respondent together regularly, at least on a monthly basis, between the years of 2000 and around 2018. Although Mr H and the Applicant remain friends I have no reason to doubt his evidence and he was a truthful witness.
Interestingly, Mr H recalled that around 10 years ago the Applicant and Respondent had an argument “that led to a minor separation” but also said that they reconciled in or around the same week. In my view this enhances the impact of his evidence as he was able to contrast his observations of the “happy couple” to a period when they did not present that way.
The Applicant asserts that at the time he left the home that he left “most” of his belongings in the house. To some extent that is conceded by the Respondent in that she says at paragraph 36 of her affidavit filed 26 November 2022:-
36. I agree to allow an agent to come and collect [Mr McAllister]’s belongings on behalf of [Mr McAllister].
It strikes as odd that if there had been a true breakdown in the relationship in 1990/2000 that the Applicant would leave his belongings there. What is more significant is that the belongings (whatever they may be as that was not explored in any great detail) should remain in the matrimonial property for two decades. That in and of itself suggests flexibility and ease of movement between the matrimonial property and the Applicant’s household. The Respondent also seeks return of items from the Applicant’s household namely photos of the Respondent as a baby (which she says the Applicant “took”) and a photograph album of the Respondent when she was a teenager in Country C.
As an aside I do not regard the Respondent’s request for return of chattels to and from the Applicant as her acquiescing to jurisdiction. Quite clearly if there is no jurisdiction overall as is the Respondent’s case then I have no jurisdiction to make orders for the return of chattels. I regard these statements as little more than an afterthought and a wish for the return of keepsakes and items that have negligible value to anybody but those to whom they belong.
There is a further matter which suggests that the parties were more than just friends. When the Applicant received multiple speeding fines, the Respondent agreed for the Applicant to nominate her as the driver so that she would receive the demerit points in order for the Applicant to retain his driver’s licence. The Respondent gave evidence that she swore a statutory declaration saying she was driving the car when the speeding incidents occurred, when she was in fact not, so that she would receive the demerit points. The Applicant paid the fines. This does strike as the sort of illegal behaviour that might take place between a couple, as each of them would have a vested interest in the Applicant retaining his driving licence.
There are other matters however which indicate that to the outside world the parties made representations that they were not a couple and nor were they living together.
It is also apparent that at least with respect to the Suburb P and Suburb Q properties the Applicant has been in government funded housing and thus it is likely and probably a requirement that the Applicant signed documents with the Department of Human Services and its antecedents that he did not own other property. There are no documents in evidence from the relevant housing authority to accurately identify what representations were made by the Applicant to the authorities.
The Applicant has two motor vehicles that are registered in his name to his address in Suburb Q. During cross examination, the Applicant gave evidence that Centrelink has the Applicant's address recorded as Suburb Q. However he also said that since 1999, he has told Centrelink that he resides at the F Street, Suburb G property; that he was “between houses”. The Applicant was unable to produce any letters sent to him at the F Street, Suburb G property, stating he “didn't bring them”.
The Orders of 10 February 2021 provide the following:-
4. Within 60 days of the date of these Orders, the parties must each provide to the other any document which goes to the issue of whether the parties have been in a de facto relationship between 9 August 1999 and 17 May 2020 (“the disputed period”) including but not limited to:
(a) Centrelink records which address the parties’ relationship status;
(b) Bank statements;
(c) Text messages;
(d) Any receipts including but not limited to shopping and household expenses;
(e) Their income tax returns, if any.
There were numerous requests for disclosure from the Applicant by the Respondent’s solicitors:-
(a)On 11 May 2021 the Respondent’s solicitors forwarded a letter to the Applicant’s solicitors via email seeking production of the material specified in the orders of 10 February 2021.
(b)On 23 July 2021 the Respondent’s solicitors forwarded a letter to the Applicant’s solicitors via email inter alia making a further request for disclosure pursuant to the orders of 10 February 2021
(c)On 23 September 2021 the Respondent’s solicitors again forwarded a letter to the Applicant’s solicitors via email, repeating their earlier requests for disclosure and making a further request for disclosure pursuant to the orders of 10 February 2021.
On that basis and having regard to the non-disclosure I conclude that any such evidence capable of being produced by the Applicant on this issue would not have assisted his case. His statement in cross examination when being asked why he had not produced the documents that “he didn’t bring them” is asinine having regard to the date of the order and the correspondence which flows.
In any event even without the Applicant’s failure to produce such documents it stands to reason that the Applicant has likely made false statements to the government agency responsible for housing that he was single and not in a de facto relationship which, if his current case is to be accepted, were false.
The Applicant, having been on a Centrelink benefit for all these years has also made representations to Centrelink that he was single and not in a de facto relationship which, if his current case is to be accepted, was also false. This issue does the Applicant no credit at all and is contrary to the obligation to make truthful declarations to authorities, particularly when the Applicant stood to and did make financial gains as a result. The Respondent has also gained a financial advantage by the Applicant’s (and possibly her own) representations.
I considered whether this fact should be determinative of the issue however having regard to the unusual and unique circumstances of this case I shall not do so. In my view, to elevate these representations over all of the other facts in these proceedings would elevate one factor to prominence when a consideration of the multiple factors set out in the Act and beyond is mandated (see also the discussion in Hayes & Maruquis [supra] Per McColl JA for the proposition that statements to a government authority apparently inconsistent with a party’s case are taken into account as a part of all the circumstances, and are not determinative of whether a relationship exists for the purposes of the Act). I have however, factored these false representations into my consideration.
discussion
In Jonah & White, Murphy J spoke of “coupledom” and when the parties had so merged their lives that they were for all practical purposes, living together as a couple. His Honour referred to this as the "manifestation of coupledom". The issues in this case are certainly not clear cut.
There is no definition of the term “breakdown” (of the de facto relationship) in the Act. Nevertheless the concept of this relationship being properly characterised as a de facto relationship beyond 1999/2000 and specifically beyond 2009 would mean that any breakdown of the de facto relationship post 2009 axiomatically would mean that a de facto relationship existed proximate to that point. In other words, the consideration of whether a de facto relationship existed post 2009 is relevant and informative to when breakdown occurred.
The fact that there may have been ups and downs and eventual breakdown in the de facto relationship at certain points of the parties’ relationship which then resumed is not unusual. Many relationships involving a commitment to being a couple, or “coupledom” can from time to time breakdown and yet resume at a later stage. Such a circumstance might make the assessment of a couples’ joint commitment as stronger. It is not unusual in many relationships to have periods of separation and a subsequent resumption of a relationship, a de facto relationship or a marriage. In most of those cases the resumption of the relationship will be accompanied by a resumption of cohabitation, but not necessarily.
I have set out the evidence to the factors I am directed to take into account pursuant to section 4AA(2) above and while not exhaustive they must be view as some of the most fundamental and basic criteria (to varying degrees on the facts of each case) to establish the existence of a de facto relationship.
Ultimately, on an objective assessment of the evidence and on the basis of these reasons, I am satisfied that the parties maintained their relationship as a couple living together on a genuine domestic basis until 17 May 2020. I find that the de facto relationship between the parties broke down on or around 17 May 2020.
It is also informative that upon the breakdown as found by me the Applicant has sought property relief which suggests, at least in his mind, that the parties continued the relationship they had previously had, albeit at different residences.
The features of the parties’ relationship post the 1999/2000 period as I have set out when considered cumulatively militate towards the likely conclusion that their de facto relationship continued.
As a consequence of this finding this court has jurisdiction to determine the property dispute and I shall make orders progressing that aspect of the dispute including for the filing of applications, affidavits, financial statements, the provision of a conciliation conference and a trial.
For all of the foregoing reasons I make the orders as set out.
I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Stewart. Associate:
Dated: 13 July 2022
0
2
0