McMaster & Wyhler
[2013] FamCA 989
•16 December 2013
FAMILY COURT OF AUSTRALIA
| MCMASTER & WYHLER | [2013] FamCA 989 |
| FAMILY LAW – DE FACTO RELATIONSHIP – Application for declaration pursuant to section 90RD that a de facto relationship existed between the applicant and the respondent – Preliminary question – Where applicant argues that the period of de facto relationship was for 4.5 years – Where respondent does not concede that there was an existence of a de facto relationship – Held the circumstances of the relationship were not of a couple living together on a genuine domestic basis – Where the parties never at any time resided in the same building – Where there was never a sexual relationship between the parties – Where neither party was financially dependent or inter-dependent of each other – Where there was little jointly owned property of the parties – Where respondent commenced a concurrent relationship with another man during the same period which was of romantic nature and included a sexual component – Where parties were not considered to be in a relationship by mutual friends. |
| Family Law Act 1975 (Cth) s 90RD, s 90SM, s 4AA Evidence Act 1995 (Cth) s 128 |
| Jonah & White [2011] FamCA 221 Moby v Schulter (2010) FLC 93-447 Jones v Dunkel [1959] 101 CLR 298 |
| APPLICANT: | Mr McMaster |
| RESPONDENT: | Ms Wyhler |
| FILE NUMBER: | MLC | 5483 | of | 2011 |
| DATE DELIVERED: | 16 December 2013 |
| PLACE DELIVERED: | Townsville |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 17, 18, 21, 22, 23 January 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Edmunds |
| SOLICITORS FOR THE APPLICANT: | ALT Legal Associates |
| COUNSEL FOR THE RESPONDENT: | Mr Kistler |
| SOLICITORS FOR THE RESPONDENT: | Lewenberg & Lewenberg |
Orders
The Applicant’s Amended Application filed 1 February 2012 be dismissed.
Any Application in a Case seeking an order for costs by either party, be made, filed and served on or before 4:00pm on 24 January 2014.
Any Submissions in support for any Application for Costs be made, filed and served on or before 4:00pm on 7 February 2014.
Any Submissions in response to any submissions filed in accordance with Order 3 hereof, be made, filed and served on or before 4:00pm on 21 February 2014.
Any Submissions in reply be made filed and served on or before 4:00pm on 28 February 2014.
IT IS NOTED that publication of this judgment by this Court under the pseudonym McMaster & Wyhler has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA |
FILE NUMBER: MLC 5483/2011
| Mr McMaster |
Applicant
And
| Ms Wyhler |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
By his Amended Initiating Application filed 1 February 2012, the applicant sought a declaration that he and the respondent were in a de facto relationship between May 2006 to December 2010, or alternatively January 2011. By her Amended Response filed 6 February 2012, the respondent sought that the applicant’s Application be dismissed. In the event that a de facto relationship was found to exist, the applicant sought a division of the property of the parties to the relationship.
The trial before me was of the preliminary point of whether or not there was a de facto relationship between the applicant and respondent as alleged.
OVERVIEW OF THE PARTIES’ CASES
The applicant contends that, although in some respects it may have been somewhat unusual, the relationship between the parties nonetheless satisfies the definition of de facto relationship for the purposes of the Family Law Act. He accepts that there was some unconventional aspects to it: For instance, on his case, there were no sexual relations between the parties during the relevant period, nor did they ever share a bed together, and he was aware of, and acquiesced in, the applicant having a romantic relationship with another man for three years of the four and a half years of the alleged relationship. However he points to what he says is the extensive social life which the parties enjoyed together, his regular presence in the respondent’s home for an evening meal, and the financial inter-relationship which the parties had by virtue of the joint bank account and a joint shareholding. Particularly he says that there is no basis to justify the respondent’s recourse to $168,000.00 from the joint account on the basis of either her being refunded monies she had expended on him, or by reference to payment of rent. He asks me to find that the withdrawals were an incident of, and justified by virtue of, the de facto relationship.
On the other hand, the respondent contends that the relationship between her and the applicant was one merely of friends and dancing partners. She points to the fact that she entertained numerous people at her home, and frequently others were present on occasions when she and the applicant dined out. She points particularly to her other romantic and sexual relationship as demonstrating that she was not then in a de facto relationship with the applicant, and she seeks to justify her recourse to the $168,000.00 as solely repayment of monies of which she was otherwise entitled to. Further, she relies upon the fact that she and the applicant never lived in the same abode, but rather the applicant resided in a bungalow at the rear of her home, which had previously been occupied by a tenant.
THE LAW
Pursuant to s.90RD(1) of the Family Law Act 1975 (Cth) (“the Act”) this Court is empowered in proceedings brought under, amongst other provisions, s.90SM of the Act, to declare for the purposes of those proceedings that a de facto relationship existed, or never existed, between the parties.
The definition of “de facto” relationship for the purposes of the Act is contained in s.4AA. Sub-section (1) provides as follows:
4AA(a) 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 sub-section (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 affect subject to sub-section (5).
Sub-section (5) provides as follows:
For the purposes of this Act:
(a)a de facto relationship can exist between two persons of different sexes and between two 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.
Some elaboration of the circumstances relevant to working out if persons have a relationship as a couple is contained in sub-section (2). That provides as follows:
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.
Statutory guidance as to the inter-relationship of those circumstances, and the weight to be given to them, is provided in sub-sections (3) and (4) as follows:
(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.
Those provisions, or their state counterparts, have been the subject of considerable judicial discussion, principally in an attempt to more precisely analyse what will comprise “a couple”. Much of that analysis seems to have its genesis in the difficulty in satisfactorily distilling the essence of such a common, everyday concept. From those decisions the following propositions may be stated:
(a)Whether a de facto relationship exists or not is a question of fact, not a matter of discretion;[1]
(b)A de facto relationship does not need to be akin to a marriage[2] although the nature of the association involved in a marriage relationship may be instructive;[3]
(c)The parties determine the nature of their relationship and it may evolve and alter, even dramatically, over time;[4]
(d)Whilst a composite expression, it is comprised of two parts “a couple” and “living together” each of which must be established;[5]
(e) There need not be full time living together;[6]
(f)The relationship may be unhappy, but still subsisting;[7]
(g)Sexual or other exclusivity is not necessary;[8]
(h)The gist of the inquiry is the degree to which parties have merged their lives into one.[9] That connotes financial, emotional and physical interdependence.[10]
[1]Jonah v White [2011] FamCA 221 at [58] per Murphy J.
[2]Moby v Schulter (2010) FLC 93-447 at [163]-[164] per Mushin J.
[3]KQ v HAE [2007] 2Qd R 32 at [18] per McMurdo P, Keane & Holmes JA.
[4]Vaughan v Bele [2011] FamCA 436 at [11] per Cronin J.
[5]Taisha & Peng [2012] FamCA 385 at [12]-[21] per Cronin J.
[6]Moby v Schulter (supra) at [140].
[7]JRR v PH [2005] QSC 253 at [29] per Byrne J.
[8]ibid at [62]-[64].
[9]ibid at [60] and [67].
[10]Zau v Uongh [2013] FamCA 347 at [35] per Cronin J.
CREDIBILITY ISSUES
The credibility of the applicant was not seriously impugned. However the credibility of the respondent was strongly challenged on several fronts. Indeed on several occasions during the course of her cross-examination, the respondent sought – and was granted – a certificate under s.128 of the Evidence Act 1995 (Cth) on the grounds that her evidence was likely to incriminate her.
Her impugned conduct fell into two categories. The first was her failure to disclose or declare her income to relevant government authorities. The second was her attempt to obtain a financial advantage by deception, when she applied for a loan from the Commonwealth Bank.
Turning to the first matter, there appear to be at least four instances where the respondent has likely failed to disclose income, when she was obliged to do so. The first was her failure to declare rental income paid by an Asian student in respect of a bungalow at the rear of her home at A Street, Suburb E prior to May 2006 in her tax returns. The second issue was her failure to declare in her tax returns income derived from a personal services business she conducted from about 2008 onwards. This income appears to have been substantial, and at times perhaps as much as $1,000.00 per day. Thirdly, although she asserts that she was entitled to receive – and by withdrawal from the joint account did receive – rent from the applicant for the bungalow after May 2006, that too, was not declared in her tax returns. Finally, it was said that she remained in receipt of a full disability pension notwithstanding the receipt of rent and income from personal services, but she did not tell the relevant department of that income.
As to obtaining a financial advantage by deception, that occurred in the course of her purchasing an investment property at A Street in December 2010, which was in part funded by a loan of $43,000.00 to her by Mr M, however she represented to the bank that the money was a gift, when it was not.
There is a further matter indirectly relevant to the credibility of the respondent, and that arises from her failure to call a witness whose affidavit she had filed, a Mr S. Mr S, on the respondent’s evidence, has been intimately involved in her financial and accounting arrangements and advice over many years. During the course of her cross-examination, the respondent regularly claimed ignorance in relation to her affairs, or at least as to why her tax returns had been prepared in a certain way, for instance by not disclosing the various sources of income discussed above. Given that, in effect, she was deferring the answer of those questions until Mr S was called, her ultimate decision not to call him would ordinarily be surprising.
However whereas the respondent could obtain the benefit of a s 128 certificate in relation to any incriminating evidence which she gave, the same could not be said in respect of evidence which Mr S may give which incriminated the respondent. It seems highly likely that, where the respondent has received income in cash which would be very difficult to be detected by the ATO, she has not declared it in her tax returns. Mr S, who prepared the relevant returns, either may not have been told of that income, or alternatively may have been told of it, but chose nonetheless not to declare it in the respondent’s return. Either way, Mr S’s evidence under cross-examination stood to adversely affect the respondent by potentially exposing her, at the least, to a civil penalty being imposed based upon that evidence. In those circumstances I, at the least, accept that the failure to call Mr S is adequately explained and I am not prepared to draw a Jones v Dunkel inference against the respondent on the basis of her failure to call him.
However it does seem clear, based on her own evidence, that the respondent is prepared to conceal relevant information from responsible authorities where its disclosure would adversely impact upon her financial interests. That is a matter which necessarily is of concern in these proceedings, which potentially stand to have such an impact upon her. Therefore I propose to be extremely cautious when dealing with her uncorroborated evidence.
Further, there were some unsatisfactory aspects to the respondent’s evidence. In making that comment, I do not overlook the fact that her evidence was given via an interpreter however during her cross-examination she would regularly claim not to have a proper understanding of matters which she ought, in the ordinary course of events, to be expected to have known about, and, as I have already observed, developed a pattern of deferring the answering of any difficult questions to Mr S. Further, I had the distinct impression that on occasions she knowingly sought to minimise the extent of the applicant’s involvement in her life, or indeed in the life of her son J. Additionally on occasion she would appear to blame others – particularly her solicitors – for matters being not included in her affidavit. Further, initially she denied the accuracy of entries in a diary maintained by the respondent, but ultimately conceded that it was likely largely correct.
Even apart from my concerns arising from her failure to disclose income in her tax returns, and representing to a financial institution that her financial affairs were different to what in fact they were, these considerations would give me cause for concern in unhesitatingly acting upon her evidence.
That said however, a finding in relation to the respondent’s credibility does not, of itself and without more, in this case mean that there necessarily was a de facto relationship between the parties. The existence of such a relationship is a question of fact based upon whether or not the evidence persuades me that the parties were, for the relevant period, a couple living together on a genuine domestic basis.
THE FACTS
The applicant was born in 1943 and hence is presently 70 years of age. The respondent was born in Europe in 1958 and hence is presently 55 years of age. In about 1982 the respondent migrated to Australia. Her only child, J, was born in 1992.
Both the applicant and the respondent have previously been in domestic relationships, however when they met in April 2004 in Melbourne, neither of them were then in a relationship.
The applicant is a financial professional. For most of the time to these proceedings, he was working in that capacity.
At all the relevant times to these proceedings the respondent was in receipt of social security benefits, albeit in about 2008 she commenced to conduct a business in personal services from her home.
For many years, the respondent has been an enthusiastic ballroom dancer. The evidence disclosed that it is commonly regarded as an important aspect of that recreation to be well groomed and attractively attired. Certainly from the respondent’s perspective, it was important to her that her dancing partners were attractive and well presented. To that end, she would have her dancing partners from time to time undergo cosmetic procedures to enhance their appearance at her expense.
It is uncontroversial that when the applicant and the respondent first met 22 April 2004, it was at a dancing studio. Not long thereafter, they met again when both were attending a dance, at which meeting the respondent gave the applicant her telephone number, which he rang a day or two later on 30 April 2004. In that conversation he accepted her invitation to attend her home that night, and did so. About a week later they both jointly went to another dance, and thereafter agreed to mutually attend dancing lessons twice a week, and to jointly attend dances together. They developed the habit of sharing meals after dancing practice, either at the respondent’s home or at restaurants. They also would often practice dancing at the respondent’s home.
As she had done with previous dancing partners, the respondent expended her own monies purchasing the applicant what she regarded as more suitable and attractive clothes. The respondent asserts that there was an agreement or understanding that the applicant would repay her the monies which she expended upon him, albeit this was denied by the applicant. However one of the documents annexed to the applicant’s affidavit filed 3 December 2011 was a diary which he commenced to keep on 1 May 2004 (ie the day after he had first attended the respondent’s home). Although I will discuss this diary in greater detail later in these reasons, it appears to have been a relatively contemporaneous record of events which occurred pertaining to the respondent.
The first occasion when it is recorded in the diary that the respondent had purchased the applicant clothing was on Sunday 27 June. The relevant entry reads “…[Ms Wyhler] brought me two sweaters. She is wonderful – (I have to pay her back).” Two days later there were further purchases, recorded as “[Ms Wyhler] also brought me two sweaters to wear – they are great – I have to pay her back of course.” It is unclear whether those notes record the respondent’s contemporaneous thinking, or are consistent with a conversation that occurred between the parties. Either way, it certainly was the applicant’s state of mind that these clothes were not received without some recognition by him that it would be appropriate for him to repay her for them at some future time.
In due course the respondent arranged for some cosmetic procedures to be performed upon the applicant at her expense. The first procedure was performed in August 2004, at a cost of about $9,000.00. A second procedure was undertaken about seven or eight months later at a further cost to the respondent of about $7,000.00. Again the respondent asserts that there was an agreement or understanding that she would be repaid for those monies, albeit again this was denied by the applicant.
It is difficult to see on what basis the applicant denies at least a moral obligation on his part to repay these sums to the respondent. If one focusses upon the August 2004 expenditure, the parties had known each other for less than three months, and although by then they had spent considerable time together dancing, and the respondent had purchased some clothing and household goods for the applicant, it seems to conjure that into a sufficient justification for expenditure of $9,000.00 without any obligation for reimbursement at some time in the future. Moreover there appears to be no suggestion that there was any mutual romantic relationship between the parties by August 2004; whilst the applicant’s diary would support the notion that he was by then infatuated with the respondent, there is nothing in the material which indicates that he had disclosed his feelings to the respondent, or that she had disclosed any similar feelings to him. I find that the applicant realised that the expenditure of these sums upon him carried with it an obligation – if not legal, then certainly moral – to repay those sums, to the best of his ability, at some time in the future.
When the parties had initially met in April 2004, the applicant was living in rented premises in Suburb H. In August 2004 he moved from those premises to a house in Suburb D, on his case because it was closer to the respondent’s home.
Initially the diary entries made by the applicant were very short. As time went on, they became longer and more expressive. The first entry demonstrating an emotional interest on the part of the applicant appears to be on Monday 21 June when he concluded the entry “she is just wonderful !!” On 30 June the entry included “she is so wonderful to be with – so honest – just a pleasure.” The entry for 1 July commenced “Disaster. Did not see [Ms Wyhler] today..”
The entry for 10 July included “I love her for her total honesty and straight forwardness.” On 22 July the diary entry concluded “[Ms Wyhler] is wonderful – I love her.” On 25 July the entry concluded “[Ms Wyhler] is the most wonderful lady I have ever met – can any man deserve her?” On 3 August the entry included “I love her so much.”
It is plain therefore that, by at least the times of these entries, the applicant had commenced to have very strong feelings for the respondent. Mr G in his evidence described his interpretation of the applicant’s conduct as “he seemed to adore her and was smitten or infatuated; I would say he was besotted with her.” I accept that evidence, as it appears to be quite consistent with the diary entries.
The diary provides an interesting insight to the applicant’s thinking from time to time. A recurrent theme is his feeling of being inadequate for the respondent and the need to become deserving of her. However what the diary also clearly demonstrates is that the major focus of their association was dancing. There are many, many occasions when the diary records that they practiced, had lessons, or attended dances. Numerous entries record apparent annoyance on the part of the respondent when the applicant’s dancing was not up to what she perceived to be the appropriate standard.
There are several other important aspects to the diary entries. Firstly, they do not report any intimate communications between the parties, and I have little doubt that they would have been recorded had they occurred. Secondly, they show that from an early point, the respondent showed an interest in the applicant’s financial position, about which position the applicant was embarrassed. The third matter which is clearly demonstrated is the applicant’s continued awareness that he was ignorant about how the respondent perceived him, such that he would note – no doubt because he regarded them as significant – any comment or behaviour of the respondent from which he could draw any comfort or hope that perhaps his feelings were reciprocated.
Relevant examples of these three features of the diary are as follows:
2004
August 8I had a wonderful weekend with her; I just enjoyed it so much – I think she likes being with me as well. Mind you, I have to get a decent job so I can help her.
August 25... [Ms Wyhler] must really care for me but I really need to be able to deserve her…
September 19 ... She has brought a desk for my use and something else as well. I asked why she is doing this for me. It was a half answer…
October 2… [Ms Wyhler] is just wonderful to be with, challenging – I have to do something about my job situation.
November 25 ... [Ms Wyhler] was left out in the cold which she did not appreciate and she left. She left her sunglasses so I went back to her place. I feared the worst but she was ok. I thought she had left her glasses deliberately but this was not the case…
2005
January 7... What a wonderful week it has been. I say it to myself time and time again, that [Ms Wyhler] is lovely and while she can get very annoyed with me, it is all coming from her genuine desire for me to be better. And I am hoping and I think that there is something even greater existing and certainly there is with me.
January 16... and always [Ms Wyhler] is in my thoughts and how I can get myself out of the mess that I have been in so that I can truly deserve her… I can only hope that [Ms Wyhler] is as happy as me despite the idiosyncrasies that I have. Whichever way it is, [Ms Wyhler] is the most wonderful and the loveliest woman I have ever met. She is a very strong woman and she is very handy with a screwdriver but she is a real woman and I just admire her and love her and hope that I am No 3 in her life and that I can stay there and deserve her.
January 20[Ms Wyhler] paid off my visa credit card today and I had to cancel it. I couldn’t do it, as I didn’t have the card. I had the lesson … and then went home to do an Excel report on where I spend my money. I went over to [Ms Wyhler’s] at about 8.30 and I bought a couple of Bailey’s Gliders. I showed her where I spent the money. [Ms Whyler] was thinking I was putting something aside but I wasn’t.
January 21I had my bank statements from the July – Oct period which she wanted to see as well as pay slips. I showed her everything. I owe [Ms Wyhler] so much. I wonder if I will ever deserve her…
January 28 ... No one has done things for me like [Ms Wyhler] has done. The biggest problem, is that I can’t do things for her unless I fix up my career problems. I just think so much of her.
January 30… I just love being with [Ms Wyhler] and dancing with her. I think she feels the same, I think, despite all my faults.
March 20… I love being with [Ms Wyhler] and somehow, I think, I think [Ms Whyler] likes being with me. I certainly hope so.
April 22It is a year since I first met and danced with [Ms Wyhler]. And what a wonderful year it has been! It has had its moments but I love her so much for what she has done for me and I can only hope that I have done something for her as well.
May 12... [Mr K] was there as well and when [Ms Wyhler] and I had a demo dance, [Ms Whyler] said to me “stay with me” and [Mr K] in a throwaway line, said, “you are always with him.”
August 9Will I ring? Is this it? I did ring about 5.30 and was told “come”. I did and [Ms Wyhler] had some dinner for me and I thought that she didn’t want to see me any more…
September 12 [Ms Wyhler] found out about my visa [card]. I am in the shit. I went over about 8.30 and somehow I survived.”
December 31 … When 12 o’clock came, we kissed and [Ms Wyhler] made some new year wishes. I wished I had heard them all but I heard one which was about dancing…
2006
February 6I went over to [Ms Wyhler’s] after work and what a surprise was in store for me. A new watch. I couldn’t believe and I wondered if the catalyst hadn’t been my watch being loose on the Saturday night and Sunday afternoon. It was almost like fate. What have I done to deserve this? She is so wonderful.
March 24I was called during the day by [Ms Whyler] – she had discovered my personal loan. Was I in the shit? Yes and no. I had tried to explain to her before I took it out but she wasn’t listening. I met her at the bank and I signed a form and then we went and had coffee…
May 4… [Mr K] was there and in the conversation he was having, he talked about the love that I have for [Ms Wyhler]…”
The diary concludes at about the date that the applicant moved into the bungalow at the rear of A Street in May 2006, but there are several other factual matters I wish to deal with prior to moving to that point in the chronology.
In March 2005, the applicant commenced employment with T Company. He says that the respondent then suggested that he commence making payments to her of approximately $800.00 per month, and he did so, save that on some occasions greater amounts were requested and paid. Whilst there is no mention of these withdrawals in the applicant’s diary, it will be remembered that the diary entry for 20 March 2005 concluded with the applicant’s rumination that he thought that the respondent liked being with him, or at least certainly hoped so. Whilst I accept that the applicant’s case is not to the effect that he was then in a de facto relationship with the respondent, to the extent that he seeks to argue that they were then a couple, and that any such payments were indicative of a romantic or other similar personal relationship, I reject that contention.
By that stage in the parties’ history the respondent had expended her monies on buying what from the diary appear to be considerable amounts of clothing for the applicant, and had expended at least $9,000.00 on the first tranche of cosmetic surgery. Further surgery was anticipated by then as well. As I have already noted, in the early stages of the diary, the applicant clearly expresses an understanding – although it is unclear whether it was based upon a conversation or just a perceived moral obligation – that he should re-pay the respondent for her expenditure in relation to clothing. Certainly one does not get the impression from the diary that any of the $800.00 payments had any echo of one member of a couple providing money to the other for their joint purposes.
On 15 December 2005 the applicant and respondent opened a joint bank account. At para.13 of his affidavit filed 3 December 2012, the applicant said as follows:
13. On or about 15 December 2005 the respondent telephoned me at work and asked me to meet her at the … the Commonwealth Bank of Australia. When I arrived she introduced me to a female bank officer and we completed forms to open a joint bank account in the name of [Mr McMaster] and [Ms Wyhler], account no:…28 (“the joint account”). I recollect the respondent said to me that in [Eastern Europe] the man handed his wages to the wife and she looked after the spending of it. I agreed to do this because the respondent and I had a very close personal relationship at the time which I believed was going to be long term. The respondent’s reference to husband and wife in relation to opening the joint account was a clear indication to me that she shared my view of our relationship being a close and personal relationship as partners. At this time there was no other man in the respondent’s life whom she was seeing on the same frequent basis.
13.1. I have never previously had a joint account with anyone else other than my former wife. That account was closed when my wife and I separated in 1984.
13.2. There was no reason for opening the joint account other than the reason that we were in a close domestic relationship. The respondent at paragraph 12 of her affidavit sworn 6 February 2012 asserts that the reason was “so I could be repaid for my expenditure on behalf of the applicant in a mutually convenient manner.” I deny that this was ever discussed with me by the respondent as her reason for opening the account. Had the respondent been seeking a repayment of monies she had expended on my behalf I would simply have discussed and agreed to a direct debit arrangement from my account until any such monies were repaid. Further, the monies withdrawn by the respondent from the joint account have no bearing on any monies she may have expended on my behalf and she has been significantly financially enriched to my detriment. Details of her withdrawals are dealt with in paragraph 17 hereof.
…
The respondent in her affidavit filed 6 February 2012 said as follows:
… The reason for the opening of the account was so that I could be repaid for my expenditure on behalf of the applicant in a mutually convenient manner. I took the initiative in proposing this method of repayment as the applicant was a passive and disorganised person and I was keen to ensure that I would be able to recover the money I had spent on him. At absolutely no time did I say or imply that the reason for opening the account was our close personal relationship or a long term commitment to it.
It is interesting to compare the applicant’s version of that conversation with the diary entry he made for 2 December 2005. In its entirety, it is as follows:
I picked up the car today and then had to go to the bank to set up an account with [Ms Wyhler]. We went to the office Xmas party at the Comedy Club. It wasn’t too flash and we left at about 10 and went and had a cocktail at the Regent. We got back to [Ms Wyhler’s] at about 12 and I slept the night at [Ms Whyler’s].
It is useful to contrast that entry, and the respondent’s affidavit version of the conversations that attended that event, with an entry which he made in his diary on 27 November 2005, just five days earlier. Having recited the fact of a two and a half hour dance practice, after which the parties went to see a friend perform at a ballet concert, it concluded:
It was good and we got back to [Ms Wyhler’s] at about 9.00 after picking up my car. I then copped it because I hadn’t brought dinner. I then went home. It didn’t finish on the right note but it was a wonderful weekend. I often don’t know what [Ms Wyhler] thinks of me but we seem to spend a lot of time together…
It is also useful to compare the entry for 2 December and the applicant’s affidavit version of the alleged conversation of that day, with his diary entry for 31 December recited above, which concluded with him wishing that he had heard all of the respondent’s New Year wishes. What flows from these and other diary entries on either side of 2 December, is that at the time the applicant was deeply infatuated with the respondent who, other than dancing with him very frequently, and socialising with him at her house, his house and restaurants, had said and done nothing to indicate her feelings for him – if any – beyond friendship. Rather the diary entries reflect the anguish of the applicant at not knowing how the respondent felt about him.
Against that background, and notwithstanding my considerable concerns about the respondent’s credibility, I reject the applicant’s version of the conversation of 15 December (accepting that as to the date, his affidavit appears to be in error, and ought to have referred to 5 December). I have little doubt that if the respondent had indeed said to him something from which he could infer even the slightest glimmer of hope that the respondent perceived herself as being in a relationship with the applicant akin to that of man and wife, it would have been noted enthusiastically in the diary. Instead, the entry is a relatively dismissive one. When one considers that, both before and after the entry for 5 December, the applicant had been prepared to optimistically construe minor matters as providing insight into the respondent’s feelings towards him, any conversation such as he alleges would have assumed momentous significance.
The applicant was critical of the respondent’s explanation for opening a joint account, pointing out that it would have been far more business-like to have established a direct debit facility on the applicant’s existing account to ensure repayment to the respondent, rather than having them joint account holders. Whilst that may well be so, in fact this was not the first occasion that the respondent had used such a device to effect repayment of monies to her from a dancing partner upon whom she had expended monies. In her affidavit filed 23 February 2012[11] she said, (and was not challenged in cross-examination):
…In order to repay the debt owed to me, Mr [Y] opened a joint bank account into which he would deposit his income and I would withdraw funds to repay expenses that I had incurred on behalf of Mr [Y]…
[11]Para.13.
Annexed to that affidavit was a bank statement ending 24 February 2005, although it is impossible to say whether the withdrawals shown on that statement were made by the respondent. As I have indicated, she was not challenged in her cross-examination about this, and moreover, from para.13.4 of the applicant’s affidavit filed 3 December 2012, it appears as though he concedes the existence of the joint account, albeit that he refers to it having been opened on 1 February 2006 and closed on 24 February 2006, which given the date of the statement annexed to the respondent’s affidavit, cannot be correct.
Therefore, whilst it is unusual to have a joint bank account used as the vehicle for repayment of debt, it certainly was the case with Mr Y, and there is no suggestion that the respondent and Mr Y were at that time – or at all – in a romantic or de facto relationship. I therefore do not find that the establishment of the joint account between the parties to this case in December 2005 is of itself and without more indicative that they were then a couple, or in some form of romantic relationship.
In cross-examination, the applicant emphasised the significance which he placed upon the joint bank account as evidencing that he and the respondent were in a relationship. The substance of his evidence was that to give another party access to the money which he was earning, required a lot of trust. He further said that the only assumption that he could make based upon the existence of the joint bank account was that they were then in a relationship.
In some respects the applicant’s construction of this event is similar to his construction of other aspects of the relationship. For instance, in answer to the suggestion in cross-examination that there were no interaction between the applicant and the respondent consistent with there being a de facto relationship, he identified that they danced a lot, which he construed as being a form of expression of the relationship. He continued that, based upon the fact that they shared so many occasions together, he could “only conclude” that they were in some sort of relationship.
On a date which is not clear, but apparently in early 2006, the applicant transferred 217 IAG shares from his name into the joint names of himself and the respondent. As at the date of trial, that joint shareholding continued. The applicant asserted that the respondent insisted upon the transfer of the shares to a joint shareholding, which appears to be denied by the respondent. There is no explanation other than that offered by the applicant as to the reason why the shares were so transferred, and absent any alternative explanation, I accept it.
On 16 January 2006, the applicant caused his health insurance to be extended to cover the respondent and her son J. This continued until 15 May 2006 when, according to the applicant, the respondent asked him to then terminate the cover as it was too expensive. No explanation as to why the respondent and J were added to the health insurance was given by the applicant; for instance it is not asserted that it was at the respondent’s request. It appears to have been a spontaneous gesture on his part.
One curious matter which did not appear to assume any real prominence in the trial is that in the first half of 2006, or perhaps earlier, the respondent became involved with a Mr F in some form of relationship. Precisely when it commenced, ended, and its character, is not able to be determined on the evidence before me. In paras.22 and 23 of his affidavit filed 3 December 2012, the applicant said as follows:
22. In or about 2006 I became aware that the respondent was seeing another person whose name was [Mr F]. The respondent told me [Mr F] lived with his wife and children but their marriage had broken down, and that the respondent and [Mr F] met one another on odd occasions during the daytime for coffee at cafés.
23. I recall one occasion during 2006 when I was in the car with the respondent and she telephoned [Mr F] and I heard her demanding that he pay her money. In a conversation with the respondent a few days later she told me that [Mr F] was giving her $700.00 a week to pay her bills.
Later in that affidavit he deposed to the Mr F dying of cancer in July 2006, and the respondent making a claim against either his estate or pursuant to a superannuation policy, on the basis that she was in a de facto relationship with him. On this basis she received the sum of $20,000.00. The applicant however says that so far as he was aware the relationship between them was one of friendship and did not involve sexual relations or a de facto relationship.
One could readily imagine if, during the course of what the applicant would have me find to be some form of romantic relationship, it was disclosed by the other purported party to that relationship that they had been in, or at least were asserting to others that they had been in, a concurrent de facto relationship with another person, it would be a source of some consternation. That does not appear to have been the applicant’s response, nor does it appear as though he was curious about the circumstances of her relationship with Mr F at all.
Although in her affidavits the respondent asserted that this matter was irrelevant, it was the subject of cross-examination. She conceded that Mr F was her “boyfriend”, and that she was named as a beneficiary of Mr F’s superannuation policy, but was in a dispute with the trustees about her entitlement. Ultimately she conceded she did receive $20,000.00, and conceded that it was possible that she had told the applicant that she obtained the money because she had been in a de facto relationship with Mr F.
Some time in, or shortly prior to, April 2006, the respondent’s father came to live with her, and stayed until 2010. He occupied one of the bedrooms at the house at A Street. At that point, the occupants of A Street were the respondent, her father, and her son J, all of whom lived in the main building, and an Asian student, who lived in a bungalow at the rear of the main house. That bungalow was fully self-contained, so there was no need for an occupant of it to access the main house for any purpose. However, it was not separately metered on either electricity or gas, and hence the usage by the occupant of either of those utilities could not be separately calculated. For reasons which the evidence did not disclose, in addition the bungalow had intercom communication with the house.
In May 2006 the Asian student who had been paying $240.00 per week rent to the respondent to occupy the bungalow moved out. The respondent invited the applicant to move into the bungalow. The applicant’s diary for 1 May 2006 records as follows:
I picked up [J] from the studio and went back to [Ms Wyhler’s]. She had not been feeling well and then [R] wanted to speak to her. [R] was giving notice and then the decision was taken that I would move in. [Ms Wyhler] had already spoken to me previously about the possibility of [R] leaving and me moving in. My only concern was my early hours with the side shutter but [Ms Wyhler] didn’t seemed worried…
It will be noted that this does not seem to record the events in terms of a boyfriend and girlfriend determining to commence residing together as a couple. Common experience would suggest that such a step in a relationship would be viewed by both partners as a major development. However the matter of fact way in which it is expressed in the applicant’s diary is devoid of any intimation of such significance. Importantly, although the applicant did move into the bungalow, he did not at any time obtain a key to the main house.
It is not in contest that there was never any discussion about the applicant paying the respondent rent to occupy the bungalow. However the respondent says that it was always her intention that the applicant would pay her rent, and she asserted that thereafter an aspect of her withdrawals from the joint account was to effect the payment of rent.
Some support for that contention can be found in the fact that, from 16 June 2006, the respondent commenced to make substantial withdrawals from the joint account. At the time, the applicant was earning about $4,150.00 per month, and between June and September of that year, the respondent would almost immediately withdraw either $4,000.00 or $4,100.00 in cash from the account, generally leaving little if any funds in it. The applicant says that the respondent would then give him sums of money to pay for his daily expenses as required, and for dance lessons.
In September 2006, the applicant changed employers and was thereafter paid by weekly deposit into the joint account. From that deposit, the applicant would withdraw cash for his forthcoming weekly expenses, and his evidence was that thereafter the respondent would withdraw most of what was left. Although it was not explored in cross-examination by counsel for the respondent, an examination of the relevant bank statements for the account that were annexed to the applicant’s affidavit do not seem to support his contention. For instance, in December 2006 the applicant received four amounts of salary on 6, 13, 20 and 27 December. There does not appear to be any withdrawal referable to the respondent in that period. Rather, on 29 December there is a withdrawal of $4,000.00, presumably by the respondent. Similar patterns occur throughout the balance of the statements. What appears to be the situation is that from time to time the respondent would “harvest” accumulated balances in the account by withdrawal.
The applicant calculated, and I accept, that between December 2005 and December 2010 he caused to be deposited a total of $282,537.32 into the joint account, and the respondent made no deposit at all. However notwithstanding that she made no deposit, she withdrew a total of $163,817.90 from the account. Precisely where those funds went is unclear. The respondent asserts, but did not otherwise seek to prove, that all of those withdrawals were referable to either monies that she had expended upon the applicant, or in respect of rent which he ought to have been paying to her. I reject that claim. Even on the most generous construction of the evidence, and assuming that all of the expenditure which she made to the benefit of the applicant was able to be recovered by her by recourse to the joint account, her entitlement would approach nowhere near $163,000.00. However the evidence does not permit me to make any firm determination as to what her entitlement would have been, as the precise costs of the expenditure she incurred on the applicant is not in evidence before me, nor, beyond evidence as to what the Asian student was paying to occupy the bungalow, is there any evidence from which I could determine what reasonable value ought be attributed to the applicant’s occupation of the bungalow.
However what is clear is that the respondent has withdrawn from the joint bank account what appears to be a considerable amount in excess of her entitlement.
The applicant asserts that a de facto relationship between him and the respondent commenced when he moved into the bungalow, in lieu of the Asian student. As I understand the applicant’s case, he asserts that prior to May 2006, he and the respondent were a couple, and the reason why he seeks the declaration only to commence in May 2006 is because it was only then that they commenced “living together on a genuine domestic basis.” Particularly he does not point to any substantial change in the interaction between the parties, or other significant development in their relationship, consequent upon his moving into the bungalow.
The applicant described the domestic arrangements between May 2006 and January 2011 in terms that they were “domestic partners in all but sleeping arrangements”[12] a matter which I shall return to consider in greater detail later in these reasons.
[12]Applicant’s affidavit filed 3 December 2012 para.17.
In September 2006 the respondent paid $13,300.00 to discharge a debt which the applicant had to the Australian Taxation Office. Precisely why she did so, how it came about, or the contents of the inevitable antecedent conversation which led to the payment, was not explored in evidence. However the applicant does identify that around that date, there were withdrawals from the joint account of $12,400.00, presumably by the respondent.
In about June 2007, the respondent commenced to conduct a personal services business at A Street. The precise nature of the services being offered, or any training or skill which the respondent had which enabled her to conduct such a business, were not explored in cross-examination. To the extent that there is evidence about the business, it establishes that at least part of the services on offer comprised massages and pedicure. The business appears to have been profitable. In cross-examination, the respondent said that she could earn up to $1,000.00 per day from her services.
The applicant does not assert that he was in any way involved in the business, nor that he was consulted prior to it commencing. One would ordinarily expect, if two people were in a de facto relationship, that it would have been the topic of considerable discussion and there would have been some, at least peripheral, involvement by the other partner in its establishment and operation, particularly in this case given the professional background and experience of the applicant. However there is not any suggestion on the evidence that there was any involvement in the business by the applicant whatsoever.
The respondent commenced a romantic relationship with a Mr M in late 2007 or early 2008. The relationship continued at the time of trial. Both the respondent and Mr M described themselves as being in a de facto relationship with each other. Whilst I do not know their current arrangements, up until January 2011 their pattern of spending time together was that Mr M would visit the respondent at her home from Fridays between 7:00 pm until approximately 10:00 or 11:00 pm, on Sundays from 3:00 pm until approximately 9:00 or 10:00 pm, and occasionally for a few hours on some week days.[13] The applicant did not attend the main house when Mr M was present.
[13]Applicant’s affidavit filed 3 December 2012 para.26.2.
It is useful at this stage to detail the normal domestic arrangements of the applicant and the respondent between May 2006 and January 2011. For the entirety of that time, leaving aside a couple of days when the applicant’s family came to stay, during which he slept on a mattress in the living room of the main home, the applicant always lived in the bungalow at the rear of the main house. The bungalow was, as I have detailed, wholly self-contained, such that the applicant did not need to attend the main house for any purpose, and only did so at the respondent’s invitation. Initially, also living in the main house was the respondent’s son and father, albeit it appears that the father moved out in about 2010.
The applicant detailed that in that period he would usually get up at about 5:30 am and leave for work at 6:00am, returning home between 5:30 and 7:00 pm. Between May 2006 and 2008 he said that he would usually enter the main house between 7:00 pm and 8:00 pm of an evening, although he would not attend every day, and in any event would only attend in consequence of the respondent calling him over the intercom and telling him to come to the house.
From 2008 onwards, by which time the respondent was conducting her personal services business from her home, it appears as though his evening attendance at the house was more often than not replaced by going out for dinner of an evening with the respondent. Frequently Mr G would also attend.
It is conceded that during the entirety of the relevant period, the parties never shared the same bed, and that there was no sexual relationship between them whatsoever in the course of those four and a half years.
After the advent of Mr M, it appears as though the applicant spent much less time in the main house. He says that in the last half of 2008 he and the respondent spent more time together during the evenings at local restaurants.[14] During 2009-10 he would spend evenings with the respondent on Mondays, Tuesdays, Thursday and on Wednesdays that the respondent was not with Mr M, initially sharing a meal at a local restaurant, at the conclusion of which he, the respondent, and frequently Mr G, would return to main house of A Street, and spend time together in the lounge talking until they retired to their respective homes to sleep.
[14]Applicant’s affidavit filed 3 December 2012 para.17.27.
His weekend time with the respondent comprised Saturday morning coffee together at a local café, a sandwich lunch (presumably in the main home) and shopping in the afternoon, depending upon the respondent’s clients’ bookings. In the evening they would share a meal at A Street, watching television until they retired for the night. Mr G was frequently there too. On Sundays they would usually have a morning coffee together at a café, again frequently with Mr G. Sometimes they would go shopping. Sunday afternoons and evenings were spent by the respondent with Mr M.
Para.17.28 of the applicant’s affidavit provides some insight into the arrangements between the applicant and the respondent, as follows:
If I was at home, and it was not [Mr M’s] night, the respondent would call me to the house. If I was not home she would telephone me to see where I was. I do remember one night but not the date (it was a Tuesday) when I had gone to a dance … and she rang me after 11:00pm to find out where I was.
To my mind, this is suggestive of the parties leading rather separate lives.
One aspect of the evidence which assumed some significance in the parties’ cases it the extent to which the applicant undertook grocery shopping for the respondent. Particularly, it was said by the applicant that every Saturday he would attend an Eastern European delicatessen to obtain specialty items for the respondent at a cost of about $40.00. His evidence was that he would normally leave the items in a bag at the rear door of the main house so as not to disturb the respondent, who was still asleep. The respondent accepted that some items were occasionally purchased, but sought to down play the regularity and the significance of the applicant’s conduct.
Whilst I prefer the applicant’s version of the evidence on this point, it falls far short of demonstrating that there was a joint grocery shopping undertaken each week by the parties for their household. Rather it seems as though each of the parties would separately undertake most of their grocery shopping, save that the applicant would purchase some grocery items (detailed in para.17.23 of his trial affidavit) and also attend the local Eastern European delicatessen to obtain items for the respondent. The clear impression is of two separate households in this respect.
A number of other aspects of the parties’ interaction assumed some prominence at trial. One issue was the extent to which the applicant engaged in gardening and other activities at the respondent’s property. This was denied, or at least minimised the respondent. However it is specifically referred to in the diary on several dates, and it is reasonable to infer that such work continued after he moved into the bungalow. I accept the applicant’s evidence in this respect.
Another matter of some prominence was the fact that the respondent accompanied the applicant to occasional work functions, which were of a type that would ordinarily be appropriate for partners of employees to attend. Whilst I find that that did occur, it appears to have only been on about four or five occasions.
The evidence permits the following findings to be made:
·The applicant did not have a key or free access to the main home at A Street; his access to it was wholly dependent upon invitation from the respondent;
·After 2008, save for the evening meals which he shared with the respondent either at a restaurant or in the main house, and weekend coffees and lunches, the applicant was domestically self-contained in the bungalow. For instance, he appears to have had his own bathroom, kitchen, living room and bed room, and stored his own food and other household supplies in the bungalow. He did not store any food or household supplies – or indeed anything whatsoever – in the main house;
·After 2008, most of the occasions that the applicant and the respondent spent time together were at restaurants or cafes (frequently in the company of Mr G) or shopping;
·From at least 2008, the applicant was aware that the respondent was in a relationship with Mr M, which involved them spending time alone together, with only an occasional meal at a restaurant being attended by all three;
·from time to time the applicant would purchase groceries from supermarkets, and smallgoods from a local Eastern European delicatessen for the respondent, but otherwise there were two separate households from a provisioning perspective.
It appears in about 2007 the applicant and the respondent stopped attending dances. There was a short period in about 2009 where is resumed, but it did not last.
On 17 December 2009 the respondent signed a contract to purchase another house in her street, being number … A Street. She purchased it for $736,000.00. Mr M loaned her $43,000.00 towards the costs of acquisition. Whilst that of itself is important, it is also important to note that the applicant appears not to have been consulted in relation to the purchase other than being told of it, and had no direct association with its acquisition. Whilst he does assert that he made an indirect contribution to its purchase price because some of the funds were sourced from withdrawals from the joint account, even if that be so, it is at best a passive involvement
It seems fairly clear that the applicant was resentful, but begrudgingly accepting, of Mr M’s involvement with the respondent. At para.27 of his affidavit filed 3 December 2012 he explained his position as follows:
Initially I accepted that the respondent was having a relationship with [Mr M] at the same time as she and I had our de-facto relationship. When I was married my wife had left me for another and had returned to me 15 months later. I believed that the respondent’s relationship with [Mr M] would be short lived and that she would then leave him. Our relationship was one of companionship and not of sex. Accordingly, I was not burdened by the knowledge that the respondent may be having sexual relations with [Mr M]. However, whilst I was accepting of the relationship, I was clearly not happy about the fact that the respondent was seeing [Mr M]
Ordinarily, where parties were involved in a de facto relationship, one would expect the advent of another relationship to be the topic of discussion, and perhaps argument. In cross-examination, the applicant said that he went down to the respondent’s place because he was worried about this “business with [Mr M].” His evidence was that he was told that there was nothing to worry about and the respondent brushed it off. Apparently this satisfied the applicant who went back to his bungalow, seemingly prepared to let the matter lie on that basis. However, it is clear that he tailored the time that he spent with the respondent around the time which Mr M would spend with her.
In cross-examination, the applicant accepted that the relationship between he and the respondent was not one of physical demonstration of affection. He said that the respondent was not a woman who expressed herself in that way, and nor did he, necessarily. That said, he did recall that on two occasions – once he returned from holiday alone overseas and another time when he returned from a holiday interstate – that the respondent had hugged him. It appears as though there are likely to be the only occasions when there was any physical demonstration of affection between them.
On the other hand there is considerable evidence demonstrating that there was physical affection displayed between the respondent and Mr M, albeit the evidence does not disclose whether or not that was ever in the presence of the applicant. For instance Ms V, a witness called by the respondent, deposed to her observing physical affection between the couple, and to like effect was the evidence of Mr G.
The respondent had been seeing Mr M for three years when things eventually came to a head on a Sunday in December 2010. At about 1:00 pm the applicant drove to A Street with respondent, at the same time as Mr M arrived. 1:00 pm was the usual time that Mr M arrived to spend the Sunday afternoon with the respondent. Markedly different versions of events as to what transpired were given, with the applicant asserting that Mr M struck him, and Mr M asserting that he did no such thing. It is unnecessary to determine which version is correct, but plainly which ever be correct, there was real tension between both men which, at the end of the altercation, remained wholly unresolved. At para.28 of his affidavit the applicant said as follows:
As a result of that incident and also because of an earlier incident where [Mr M] threatened to “smash me”, I told the respondent over a dinner that she and I had at the … Bistro … on the Monday evening before Christmas 2010 that I wanted nothing further to do with [Mr M]. The conversation took such a turn that I said that I would be leaving by the end of January.
According to his affidavit, after that conversation the respondent rarely spoke to the applicant other to say that he would be sorry as he could have lived at A Street for the rest of his life. On 26 January 2011 the respondent packed the applicant’s belongings up (save for a framed photograph of them) and he left the bungalow on a permanent basis the following morning.
None of this appears to be in any real contest, save that in her affidavit filed 6 February 2012, the respondent asserts that the applicant had previously advised her that he would be vacating the bungalow on the 26 January. Curiously, there is no evidence as to the contents of the Monday night dinner conversation beyond that referred to above, and it was not explored with either party during their cross-examination. I say that is curious because one would ordinarily have expected, had there been a de facto relationship of some four and a half years standing which was then being brought to an end, that there would have been either an assertion of that by the applicant, or at least some mention made of the fact that their relationship was concluding. For instance one could readily imagine, after three years of tolerating Mr M, that the applicant may have come to the end of his patience, and indicated that he was no longer prepared to continue being one of two de facto partners of the respondent. Absent such evidence, serious doubt must be cast as to whether the parties regarded themselves as them being in a de facto relationship with each other, which relationship had been in existence for the previous four and a half years.
In February 2011 the applicant forwarded to the respondent a demand for the payment of $40,000.00. It related to the years 2006 to 2011. The demand is in the form of a calculation of an amount said to be “what I want,” which is derived by deducting amounts referable to payments made by the respondent to the benefit of the applicant (estimated in the sum of $40,000.00), together with four and a half years rent valued at $1,000.00 per month (in a total of $56,000.00) from the $163, 817.00 of withdrawals made by the respondent from the joint bank account. The difference is said to be a figure of $67,817.09, to which it appears some global discount has been applied to come to the figure of $40,000.00.
Several observations can be made in respect of this document. Firstly, it is almost in the nature of a formal account. Perhaps that is the product of the applicant’s background as a financial professional. Secondly, it appears to concede the necessity – or at least desirability – to take into account the amounts paid to the applicant’s benefit by the respondent, and also an amount for rent. Thirdly, it does not seek to make any claim to the quite valuable property owned by the respondent. Whilst I do not place much weight upon the document, it certainly has to be observed that had there been a de facto relationship between the parties for four and a half years, the applicant was claiming much less than he might have legitimately claimed.
RELEVANT CIRCUMSTANCES
Overview
I accept that the overall question for my determination is whether the applicant and the respondent were living together as a couple on a genuine domestic basis. In many cases, it may not be necessary or even desirable to descend to any detailed examination of the circumstances listed in s.4AA(2) in the course of making that determination. However in this case, which has many unusual features attending upon it, it seems to me to be useful to briefly discuss each of those listed circumstances by reference to the facts of this case.
The duration of the relationship
The respondent does not concede that there was ever a de facto relationship between the parties. She says that the relationship was initially one of dancing partners, but matured into friendship, to the point where although not co-habiting, the parties lived in adjoining accommodation. She appears to concede that the friendship terminated in about December 2010. Therefore according to her case, they had simply been friends for about six years.
On the other hand the applicant apparently contends that they were a couple – but not living together – from some unspecified time, but probably December 2005, when the joint account was opened, until May 2006, but upon him moving in to the bungalow at the rear of the respondent’s home, they commenced a de facto relationship. He says that it concluded in December 2010 or January 2011. He therefore says that they were a couple for about six months, but then were in a de facto relationship for about four and a half years, making a total of five years in all.
The nature and extent of their common residence
The applicant and respondent never resided in the same building, but rather at all relevant times, the respondent resided in her home, and for four and a half years the applicant resided in a bungalow at the rear of that home. There was never any formal discussion in relation to the payment of rent for that occupation, either whether it would be paid at all, or if it were to be paid, in what sum and at what interval.
The applicant did not have any possessions in the respondent’s home nor vice versa. However the applicant did regularly spend time in the respondent’s home, particularly of an evening, and became part of the domestic routine of that home when he was there. He would frequently share an evening meal with the respondent, her son and the respondent’s father when he was living there. From time to time during the course of evenings he would assist Jason with his homework.
Whether a sexual relationship exists
The applicant concedes that there was never a sexual relationship between the parties during the time of the alleged de facto relationship.
On the other hand it is plain that from at least 2008 onwards, the respondent was in a sexual relationship with Mr M, even though their relationship was of a relatively time restricted nature. Moreover, the respondent was not secretive about her relationship with Mr M, albeit that she did not necessarily disclose to the applicant that there was a sexual dimension to it. Plainly however the relationship was no secret, and it would have been a reasonable inference for the applicant to have drawn that there was a sexual component to it.
The degree of financial dependence or interdependence, and any arrangements for financial support, between them
Neither party asserts that they were financially dependent upon each other, or that they were financially inter-dependent. For most of the relevant periods the applicant was in employment, and supported himself. Likewise the respondent was in receipt of a disability pension, and from late 2007 onwards, in receipt of income from her personal services business as well. The material does not support a conclusion that the respondent was financially dependent upon the applicant, although she did make substantial withdrawals from time to time from the joint account.
The ownership, use and acquisition of their property
There was little jointly owned property of the parties. To the extent that it existed, it was only the joint bank account, and the 217 IAG shares.
At a time prior to when the applicant contends that the de facto relationship began, he and the respondent opened a joint bank account. As I have previously indicated, I do not accept his evidence that at the time it was opened, the respondent requested him to do so because of the Eastern European tradition that a man hands the wife his wages and she spends it, but rather I accept the respondent’s evidence that the primary purpose for the joint account being established was to facilitate the repayment to her of monies which she had expended upon the applicant. However I do not accept that the respondent undertook those withdrawals by reference to any calculation; rather she appears simply to have, from time to time, withdrawn the substantial balance of the account for her own purposes.
As to the 217 IAG shares, whatever prompted the applicant to transfer them into joint names, the act itself is consistent with him then being of the view that he and the respondent had a relationship of a kind which justified there being joint property. The respondent was unable to point to any real reason as to why it is that she would have been made a joint proprietor of the shares referable simply to friendship or debt. However this transfer pre-dates the commencement of the asserted de facto relationship.
At all relevant times the respondent owned the home in which she resided. On 17 December 2009, the respondent signed a contract to purchase another house in the street where she lived for $736,000.00. Mr M loaned the sum of $43,000.00 to the respondent to defray the costs of stamp duty on the acquisition. The applicant concedes he was not involved in this transaction at all.
The applicant contends that part of the funds used by the respondent to purchase the second home were derived from the withdrawals from the joint account. That may be so; it is impossible to determine that on the state of the evidence. However the point which needs to be made is that this significant asset was acquired by the respondent in her sole name, and without any consultation with, or other involvement by, the applicant.
The other relevant matter is that the respondent permitted the applicant to reside in the bungalow in the rear of her home. As I have already noted, there was no discussion in relation to rent being paid, or if it were to be paid, the quantum of it, prior to the applicant moving. That said, the evidence before me included a calculation made by the applicant consequent upon him moving out of the bungalow with a view to resolving the financial matters between himself and the respondent, which showed that he acknowledged at least a moral liability in respect of rent from the time that he had commenced occupation of the bungalow.
The degree of mutual commitment to a shared life
Much of the evidence led by the respondent from her friends and her son was to the effect that the applicant was treated by her in no different way to how she treated other friends. For instance, other friends would attend at her home of an evening to share a meal or to otherwise socialise. Indeed even in evidence in chief, the applicant agreed that the respondent treated him no differently to Mr G, was likely correct in saying that in the entire time he had spent them both, he had never seen any indication or sign that they were in a relationship. Further, there was evidence that on the occasions when the applicant and respondent ventured out to share a meal at a restaurant, others would frequently accompany or join them.
Also of significance is the existence of Mr M in the respondent’s life from at least early 2008. The applicant had but peripheral involvement in that friendship or relationship, and regarded it jealously.
A feature of this case is the absence of any evidence of any discussion between the applicant and the respondent as to their future plans together. For instance, there is no evidence of any discussion as to their respective retirements or planning towards them which, given the applicant’s age, one would have expected to be at the forefront of his mind. There appears to have been no joint discussions as to how they might achieve financial security prior to any retirement.
Instead, even accepting that the respondent’s recourse to the funds in the joint bank account solely derived from the applicant has an opportunistic aspect to it, she appears to have been planning her life without any consultation or input from the applicant, albeit that she may have been prepared to let the respondent continue to reside in the bungalow on an indefinite basis. However her apparent willingness to have the applicant remain a part of her life is equally explicable by her needs for social stimulation and friendship rather than it being a commitment to a shared life.
Whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship
The relationship was not registered under any State law at any time.
The care and support of children
One of the issues at trial was the extent to which the applicant had involved himself in J’s life. There are really two matters relied upon by the applicant. Firstly, he said that from time to time he had assisted J with his homework, particularly in relation to prayers and astronomy. Secondly he said that on about 80 occasions he drove J to his dance lessons or picked him up from them.
The respondent sought to down-play the applicant’s involvements in these matters, and to that effect called evidence from J. In this respect I prefer the evidence of the applicant where there is conflict between him and either the respondent or J, largely because of the specific entries relating to such events in the applicant’s diary. However whilst the applicant’s involvement in J’s life might be consistent with there being a de facto relationship between the parties, it is equally explicable on the basis of friendship, particularly given that the applicant resided at the rear of the house where J lived.
The reputation and public aspects of the relationship
The applicant called one witness, a Ms N, in support of this consideration. She had met the applicant some 15 years ago and thereafter they had kept in touch. They had not been romantically associated. In about 2007 the applicant advised her that he had met the respondent, and that he enjoyed her company immensely. A few months later he rang her again to advise her that he now had a mobile telephone number. He explained to her that he had obtained it because he was now in a relationship with the respondent. It appears as though this conversation was not long before the applicant moved into the bungalow at the rear of the respondent’s home.
Subsequently Ms N and her partner visited the applicant and respondent at the respondent’s home about four times. When they visited they had drinks together with a snack or dinner, and then spent time in the living room talking. Her evidence was that the respondent asked her personal questions about the applicant, and she felt that the respondent was possessive of him. Based upon her observations of the parties, she believed they were a couple, although she was aware that they slept separately. She said that the respondent told her that the applicant did not live in her house as she did not like sex.
In another conversation Ms N recalled that the respondent said to her that the applicant was going to stay with her and that she was going to look after him for the rest of his life.
On other occasions she had conversations with the respondent. Their culmination was a conversation when the respondent was giving her a pedicure, in which the respondent told Ms N that the applicant was “leaving her” apparently as a result of the intervention of Mr G.
Interestingly, Ms N deposed that during that conversation, the respondent said to her that “although she had promised to look after [Mr McMaster] for the rest of his life he had stopped putting money into their bank account and she was not happy with him for this. She said that she felt that [Mr McMaster] did not make enough money and that she was the brains in saving and looking after all their financial affairs. She also told me that she made more money out of doing [personal services] than [Mr McMaster] did as [a financial professional]. [Ms Wyhler] told me that men should make a lot of money and support the woman…”
Ms N had the impression that this was all in the context of a domestic disagreement, and felt uncomfortable about being involved in it.
Ms N also gave evidence that on one occasion she had seen the applicant and the respondent holding hands, however this appears to have been in the context of attending a dance, and it appears to have been an isolated observation. I do not place much weight upon it.
The respondent called three witnesses who gave evidence relevant to this consideration. Their evidence was uniformly to the effect that they did not believe that the applicant and respondent were a couple, but rather that the applicant was merely one amongst the circle of friends with whom the respondent regularly engaged.
The first such witness was Ms V, who was a friend of the respondent. She sometimes attended the respondent’s home on occasions when the applicant and Mr G were there. She said that there was no sign that the applicant and the respondent were in a relationship, nor did the respondent say anything to that effect to her. She did not observe any different treatment between the respondent and the applicant on the one hand, and Mr G on the other.
On the other hand in late 2007 the respondent did advise her that she had commenced a relationship with Mr M, and expressed her affection for him. She had seen them at social gatherings and in public places where there has been an obvious affectionate component to their interaction.
An important witness was Mr G, who was a friend of both the applicant and the respondent. He said that he spent untold hours with both of the parties, and “never saw any indication whatsoever that the applicant and the respondent were in a relationship. The respondent did not treat the applicant any differently than she would treat me.”
In late 2007, his evidence was that the respondent told him she had commenced a romantic relationship with Mr M, and that since that time when he had been in their presence, he had observed them interacting as a couple. He said “they are warm, affectionate and comfortable with one another and appear to have a close and loving relationship. I never saw the applicant and the respondent behave towards each other in a similar manner.”
The final witness called by the respondent in this regard was J. He said that in 2007 he became aware that his mother was in a romantic relationship with Mr M, and he had observed them relate affectionately to each other “as couples do.” He says that it is clear, so far as he is aware, to all people who come into contact with his mother and Mr M, that they are a couple.
In relation to the applicant’s conduct with the respondent, he said as follows:
I have never seen the applicant and my mother acting like a couple. In fact, I have no recollection of ever seeing them hanging around the house together without someone else being present. My mother treats the applicant no differently than she would her other male friends like [Mr G] and [Mr S].
Whilst the evidence of Ms N cannot be altogether discounted, it is the evidence of Mr G which is critical in this context. He, above all people, was best placed to observe the applicant’s and respondent’s presentation as a couple or otherwise. He engaged with them both at the respondent’s home and out socially. His observations covered the entire period the subject of these proceedings. He is also well placed to make a comparison between the respondent’s interactions with the applicant on the one hand, and Mr M on the other. I accept his evidence and place considerable weight upon it.
In some relationships, it might be accepted that the absence of public display of being a couple might disguise the fact that, away from such scrutiny, the parties behave quite differently. However this is not such a case. The applicant does not say that, absent the presence of Mr G or others, he and the respondent behave differently. Rather he says that what Mr G observed was the relationship, of whatever character it was.
WERE THE PARTIES A COUPLE LIVING TOGETHER ON A GENUINE DOMESTIC BASIS?
I identify the following points as being in favour of the applicant and the respondent being in a de facto relationship from May 2006 until January 2011:
·The parties’ continued operation of a joint bank account, from which the respondent made regular and extensive withdrawals, beyond and entitlement to reimbursement or rent;
·The parties’ continued joint ownership of a small parcel of shares;
·The parties’ frequent joint social activities, both at A Street, at cafés and restaurants and in going dancing or shopping;
·The occupation by the applicant of the bungalow, without any formal arrangements for payment of rent or board;
·The occasional gardening work undertaken by the applicant;
·The applicant’s purchase from time to time of grocery items for the respondent;
·The applicant’s involvement in the respondent’s son’s life by assisting with homework and driving him to dance lessons;
·The respondent’s occasional attendance with the applicant at social functions associated with his work, being functions of a kind which might usually be expected to be attended by partners;
·The respondent’s purchase (albeit prior to May 2006) of clothing, personal items, furniture and household items for the applicant.
On the other hand, I identify the following as points which do not support the conclusion that the parties were in a de facto relationship over the relevant period:
·The complete absence of any sexual component to the parties’ relationship;
·The fact that although they shared the same address, the parties never cohabited in the same building, never shared the same bedroom, and in effect, ran two separate households;
·The respondent’s relationship with Mr M, which was romantic, included a sexual component, and extended for three of the four and a half years in question;
·The fact that Mr G, the parties’ mutual friend who spent extensive time with them, did not ever believe the parties to be in a relationship, although he did identify that the applicant was besotted with the respondent;
·The fact that the applicant maintained self-contained accommodation in the bungalow, only attended the main house on the invitation of the respondent, and did not undertake any domestic activity in the main house, or store any belongings there;
·The lack of consultation of, or other involvement by, the applicant in firstly, the establishment and conduct of the respondent’s personal services business, and secondly, the purchase of the second A Street property;
·The absence of any physical affection between the parties, save for an occasional hug when the applicant returned from a holiday;
·The absence of any overt celebration of anniversaries or other milestones of any relationship between the parties.
Although I am to an extent troubled by the fact that the respondent withdrew more money from the parties’ joint bank account than she had any justifiable entitlement to, that of itself, even when combined with the other points upon which the applicant relies, is insufficient to establish a de facto relationship. It is equally consistent with a besotted man’s desire to intertwine the life of the woman he loves with his, by financially providing for her, being – consciously or otherwise – availed of by a woman who was well aware of his interest in her, but not otherwise prepared to succumb to it.
It remains for the applicant to persuade me on the balance of probabilities that the circumstances of their relationship were those of a couple living together on a genuine domestic basis. I am not so persuaded. It therefore follows that the application must fail.
I certify that the preceding one hundred and thirty five (135) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 16 December 2013.
Associate:
Date: 16 December 2013
4
6
2