MEYVANS & KEMPTON
[2019] FCCA 1845
•9 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MEYVANS & KEMPTON | [2019] FCCA 1845 |
| Catchwords: FAMILY LAW – De facto relationship – consideration of the circumstances outlined in s.4AA(2) of the Family Law Act 1975 – mutual commitment to a shared life – duration of relationship – declarations sought – credibility in issue. |
| Legislation: Family Law Act 1975 (Cth), ss.4AA, 90RD, 90SB |
| Cases cited: Jonah v White (2011) 258 FLR 236 |
| Applicant: | MR MEYVANS |
| Respondent: | MS KEMPTON |
| File Number: | BRC 13367 of 2017 |
| Judgment of: | Judge Howard |
| Hearing dates: | 4, 5, 6 and 7 June 2019 |
| Date of Last Submission: | 7 June 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 9 July 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Selfridge |
| Solicitors for the Applicant: | Caldwell Family Lawyers |
| Counsel for the Respondent: | Mr D.Williams |
| Solicitors for the Respondent: | Gavin Parsons and Associates |
ORDERS
That each party shall provide a copy of a proposed Final Order to each other party by no later than 4:00pm on 16 July 2019.
That the parties shall attempt to reach an agreed position in relation to the wording of the Final Order (reflecting the Reasons for Judgment) and shall send a copy of same to the Court by no later than 4:00pm on 23 July 2019.
That in the event the parties are unable to reach an agreed position in relation to the wording of the Final Order (and send a copy of same to the Court) within the time frame stated in paragraph 2 – each party shall forward a copy of their proposed wording of the Final Order to [email protected] by no later than 4:00pm on 23 July 2019.
That the Court shall issue a Final Order from Chambers or re-list the matter for Mention for the finalisation of the wording of the Final Orders, whichever it sees fit upon review of the drafts forwarded to the Court pursuant to the abovementioned orders.
IT IS NOTED that publication of this judgment under the pseudonym Meyvans & Kempton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 13367 of 2017
| MR MEYVANS |
Applicant
And
| MS KEMPTON |
Respondent
REASONS FOR JUDGMENT
Background
The Applicant, Mr Meyvans, was born in 1961.
The Respondent, Ms Kempton, was born in 1978.
The Applicant seeks a declaration that the parties were in a de facto relationship for a period of three years and one month.
The Respondent seeks a declaration that a de facto relationship only existed between the parties for a period of approximately nine months. The Initiating Application was filed by the Applicant on 14 December 2017. There was, in fact, no particulars of any declarations sought in the Initiating Application. In paragraph 1 of the Case Outline for the Applicant – the Applicant refers to a declaration being sought pursuant to section 90RD of the Family Law Act1975 (Cth) (“the Act”). That document goes on to particularise the Applicant's contention that a de facto relationship existed between the parties between 2014 and 10 August 2017.
In her response filed on 5 March 2018, the Respondent sought a declaration pursuant to section 90RD(1) of the Act that a de facto relationship never existed between the parties.
At the commencement of the final hearing in Brisbane on 4 June 2019 the Respondent, by her Counsel Mr David Williams, conceded that a de facto relationship existed between the parties from the beginning of November 2016 until 10 August 2017. During this period of time the parties were living in a property situated at A Street, Suburb B, Queensland.
After the conclusion of the evidence and during addresses (in particular when the Respondent’s Counsel was addressing the Court in reply), the Respondent, for the first time, made a submission seeking, effectively, that if the Court concludes that the parties were living in a de facto relationship during the time that the Respondent lived with her children in the same residence as the Applicant at C Street, Suburb D, – then, the Court should also declare that that de facto relationship ended when the Respondent and her two children commenced living at Suburb E on the Region F.
The particular focus upon the duration of the de facto relationship (during the course of the trial) was necessary because of the provisions of section 90SB of the Act. Section 90SB states:-
90SB WHEN THIS DIVISION APPLIES — LENGTH OF RELATIONSHIP ETC.
A court may make an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL, in relation to a de facto relationship only if the court is satisfied:
(a) that the period, or the total of the periods, of the de facto relationship is at least 2 years; or
(b) that there is a child of the de facto relationship; or
(c) that:
(i) the party to the de facto relationship who applies for the order or declaration made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c); and
(ii) a failure to make the order or declaration would result in serious injustice to the applicant; or
(d) that the relationship is or was registered under a prescribed law of a State or Territory.
Close regard also needs to be given to section 4AA of the Act. That is the section of the Act that defines the term, "de facto relationship". That section relevantly provides:-
4AA DE FACTO RELATIONSHIPS
Meaning of de facto relationship
(1) A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b) the persons are not related by family (see subsection (6)); and
(c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has effect subject to subsection (5).
Working out if persons have a relationship as a couple
(2) Those circumstances may include any or all of the following:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h) the care and support of children;
(i) the reputation and public aspects of the relationship.
(3) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4) A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
…”
The parties met via an online dating platform on or around 2014.
In 2014 the parties met in person and commenced a sexual relationship that evening when the Respondent returned with the Applicant to his then home in Suburb D.
The evidence on the Respondent's side (namely from Ms G, the Respondent's friend) is that she was introduced by the Respondent to the Applicant at a bar in Suburb D on the very next day, presumably in 2014. Ms G’s husband was also introduced to the Applicant by the Respondent on that occasion. The evidence of Ms G is that meeting at the bar took place the day after the Respondent and the Applicant met on their first date. As to whether that is in fact correct is not relevant. It is undoubtedly the case that the Respondent introduced the Applicant to Ms G and her husband not long after the Respondent and the Applicant met for the first time.
When the parties first met the Applicant was living in an apartment in Suburb D, above a restaurant. The Respondent was living at her former matrimonial home situated in Suburb H.
The Applicant says that, from the first time he met the Respondent, he was spending approximately six nights per week living at her property at Suburb H. The Respondent conceded that the parties were spending three – four nights together during that period of time while the Respondent continued to live at Suburb H. Throughout the course of her evidence (both her affidavit evidence and her oral evidence), the Respondent continually tried to downplay and reduce the extent of the time that the parties spent together and lived together. For reasons which will become apparent, I prefer the evidence of the Applicant to the evidence of the Respondent where there are discrepancies which cannot be clarified by reference to independent evidence.
Accordingly, I accept that, whilst the Respondent remained living at the Suburb H property the Applicant and the Respondent spent, on average, six nights per week together. That is, the Applicant was sleeping over at the Suburb H property or, alternatively, the Applicant was sleeping over at the Respondent's property at Suburb D. In relation to the Suburb H property I note that the Respondent had given to the Applicant his own set of keys for the property. I also note that, during this period, the Applicant commenced transporting the Respondent's children to and from kindergarten and school (note paragraph 36 of the Applicant’s trial affidavit filed 30 November 2018). The Respondent has two children – two sons named, respectively, J born in 2007 and K born in 2012.
While the Respondent was still living at the Suburb H property the parties started holidaying together. Sometimes this was with the Respondent's children, and sometimes without the children.
From 31 October 2014, the Respondent and her two children were included on the Applicant's Bupa card. That is, the Respondent and her two children were covered by the Applicant's private health insurance. The Respondent maintained that she did not ask the Applicant to do this. Even if that is true – there is no evidence that the Respondent objected to this course of action. The Respondent's acquiescence to this action taken by the Applicant is evidence of a mutual commitment to a shared life. If the Respondent was not interested in making a commitment to a shared life with the Applicant – then surely she would have told the Applicant in no uncertain terms to remove her name and the names of her two young children from his private health insurance card. The Respondent did not do so. The Respondent stated more than once in the witness box that she is a strong, independent woman. I accept her evidence in that respect. The events surrounding the Bupa card inclusion is evidence indeed of a mutual commitment to a shared life by the Applicant and the Respondent (note section 4AA(2)(f) of the Act).
My view in this regard is strengthened by the fact that in the same month, October 2014, the Respondent changed her postal address to the same P.O. Box as the Applicant.
Also, around this time, the Applicant gave up his apartment above the restaurant and leased a three bedroom townhouse in C Street, Suburb D. The three bedrooms were needed because the Respondent and her two young sons were moving into the residence with the Applicant. In anticipation of this, the Applicant bought bunkbeds for the Respondent's sons. This is all consistent with a mutual commitment to a shared life (section 4AA(2)(f) of the Act).
The Applicant's evidence is that the Respondent and her two sons moved into the C Street, Suburb D property at the beginning of November 2014. I accept this evidence. The Respondent had maintained, originally, that she had not moved into the property at C Street, Suburb D until May 2015. This was the month that the sale of the property at Suburb H was completed. When confronted with incontrovertible evidence that the Suburb H home was empty in February 2015 (by reference to available photographs), the Respondent, at the commencement of her oral evidence, amended the date upon which she said she commenced to live at C Street from May 2015 to February 2015. At various stages during the proceedings, when faced with independent, incontrovertible evidence, the Respondent changed her testimony to suit her case and to suit the circumstances. For instance, the photographic evidence of the empty home at Suburb H was only dated February 2015 – so the Respondent, accordingly, was only willing to concede that she had moved into the C Street property in February 2015. She would not concede that she had moved into that property any earlier. This approach by the Respondent of amending her evidence to suit her case and to suit the emerging circumstances, seriously undermined the Respondent's credibility.
In relation to the Respondent and her children moving into the C Street property – the Respondent further undermined her own credibility by seeking to maintain that she only took that course of action because of her own straitened financial circumstances. I do not accept the Respondent's evidence in this regard. The Respondent had access to her own income and, in addition, the Respondent had access to a director’s loan account from L Pty Ltd. The Respondent appears to have had no difficulty obtaining the Suburb E property in August 2015 when it suited her to do so. I simply do not accept that, prior to moving into the C Street property, the Respondent had no possible alternative living arrangement.
From the time that the parties commenced living in the C Street property (the beginning of November 2014) the parties lived there together continuously; the Respondent’s two young sons lived there continuously as well; the Applicant would care for the Respondent’s children, including taking those children to kindergarten and school and collecting them as necessary; the Applicant did all of the ironing in that household for himself, the Respondent and her two children; both parties shared the cooking duties (although it is probably the case that the Respondent did most of the cooking); the Respondent did most of the other homemaking duties but the Applicant assisted; the parties truly shared the C Street abode as their common residence; the parties enjoyed a sexual relationship; there was indeed a degree of financial dependence because the Applicant was, in essence, providing the premises as the residence for the Respondent and her children as part of the parties’ shared life at that time; the Applicant paid for groceries and other outgoings; the Respondent also paid for groceries and other outgoings; the parties presented themselves as a couple in a de facto relationship during the time that they lived together at the C Street, Suburb D property.
As to the public aspects of the relationship – I note, for instance, the evidence of the Applicant’s mother when she attended the residence for an early Christmas party in November 2014 and I note the evidence of Mr M (the Respondent's former husband) that he would pick up their two boys J and K and drop them off – very often to the Applicant at the C Street property. I accept the evidence of those two witnesses concerning the public aspects of the relationship between the Applicant and the Respondent.
The evidence in relation to precisely which table or desk, the Respondent worked from in the C Street property amounted to little more than a distraction during the course of the trial. In my view, it is irrelevant.
I do not accept the Respondent's evidence that she was not living with her children at the C Street property at the time of the November 2014 early Christmas party.
At no point in time during the course of the proceedings did the Respondent concede that she was in a de facto relationship with the Applicant during the period of time that she and her two sons lived with the Applicant at the C Street property. The Respondent's position in this regard was approaching the absurd. The overwhelming weight of the evidence and the consideration of the circumstances listed in section 4AA(2) of the Act leave the Court in no doubt that the parties were indeed living in a de facto relationship from the time that the Respondent and her two children moved into the C Street property at the beginning of November 2014. The Applicant has argued that the de facto relationship in fact began in July 2014. In examining the evidence and weighing the various considerations in section 4AA(2) I have come to the conclusion that the step taken by the Respondent in moving herself and her two young children into the C Street property at the beginning of November 2014 amounted to unequivocal evidence of a mutual commitment (between the parties) to a shared life. It is at that point in time, I find, that the de facto relationship between the parties commenced (i.e. the beginning of November 2014).
There is no doubt that the parties had a volatile relationship. At times their relationship was tense, strained, and uneasy. There were instances of family violence. On more than one occasion, the Respondent bit the Applicant. I accept the Applicant's evidence in this regard. There is independent corroboration of this family violence in the handwritten notes of the Counsellor, Mr N (exhibit 1). During a session when both parties were present Mr N was told (and he noted) on 27 June 2017:-
“1. There has been physical violence from Ms Kempton towards Mr Meyvans. She has been verbally aggressive and abusive combined with hitting him, pinching him (although the word could be ‘punching’ rather than pinching) and biting him on at least 3 occasions. 2. Ms Kempton appears to believe that her behaviours are justified because of his abandonment/rejection i.e. withdrawn.”
Notwithstanding their arguments and disagreements – the parties maintained a de facto relationship from the beginning of November 2014.
The volatility reported to Mr N in June 2017 appears to have been present even during the period of time when the parties were living in the C Street property. I am uncertain as to precisely when the acts of physical violence occurred – but it was during the period of the de facto relationship.
As noted earlier in these reasons, during his address in reply, Counsel on behalf of the Respondent (Mr D. Williams) submitted that, should the Court conclude that a de facto relationship existed during the period of time when the Respondent and her children lived at the C Street property – then the Court should also conclude that the de facto relationship ended when the Respondent and her children ceased residing at the C Street property and commenced residing at the Suburb E property. This attempt to latch onto an alternative argument came when the Respondent was faced with the inevitable conclusion that a de facto relationship existed during the period of time that the parties lived together at C Street. This was the first time that any particulars of such an alternative "pleading"/"argument" were provided to the Court. This occurred after the conclusion of the evidence and after the conclusion of the Applicant's submissions. It is no way to conduct litigation.
I do not accept that the de facto relationship between the Applicant and the Respondent ceased when the Respondent stopped living at the C Street property.
The Respondent and some of her witnesses, including Ms G and Ms O (the Respondent's sister) both gave evidence that the Applicant did not live at the Suburb E property. There evidence in this regard is unreliable. It could be the case that the Respondent did not tell her sister and did not tell Ms G that the Applicant was sleeping most nights during the week at the Suburb E property. Indeed, it is certainly the case that the Respondent avoided telling this fact to Ms G. While Ms G was giving evidence before the Court she was visibly surprised (indeed shocked) to hear that the Respondent herself had conceded during evidence that the Applicant had been sleeping over three or more nights per week. I infer from Ms G’s lack of knowledge of that state of affairs that it is likely that neither Ms O (the Respondent’s sister) nor her partner (Ms P) were aware of this fact.
The parties went together to see a Counsellor named Ms Q. Ms Q provided evidence during the course of the proceedings. I found her to be a credible witness. Ms Q referred to her notes and her sworn affidavit (filed 9 March 2018), which detailed the dates of the various appointments and also contained some information given to Ms Q by the parties. The first session was a joint session on 3 September 2015. At this point in time, the Respondent was living with her two sons at the Suburb E property. They had been there for two weeks. It is apparent that the Respondent initially contacted Ms Q so that the Respondent and the Applicant could meet Ms Q for "relationship counselling". I note the following paragraphs from the affidavit of Ms Q:
“2. At the first session (joint) 3/9/15, they advised that they were a couple who had been living together for approximately 9 months, but were now experiencing relationship difficulties for which they were seeking help.
3. My notes indicate that Ms Kempton had moved into the Suburb E address with her 2 boys 2 weeks prior, (Mr Meyvans had assisted her to find the unit) and the couple was still wanting to make their relationship work. They were still effectively together at that time.
4. At their second joint session (23/9/15), the couple advised they were temporarily separated whilst they reconsidered their relationship. Mr Meyvans said he had had to break up with her on that weekend of 22/9/15 due to several major issues and Ms Kempton yelling and being abusive to him.
5. On 29/9/15, Ms Kempton came alone to see me. She had been to Darwin for a few days. Ms Kempton discussed behaviours she wanted to change in order to make the relationship work. During her reflections since being apart from Mr Meyvans, she had realised the importance of Mr Meyvans in her life and wanted to be in long-term relationship with him.”
On the day that the parties attended for the first time upon Ms Q (3 September 2015) the parties told Ms Q "that they were a couple who had been living together for approximately nine months". Furthermore, the Counsellor’s affidavit states that, notwithstanding that the Respondent and her two sons had moved into the “Suburb E” address (the Suburb E property), “they were still effectively together at that time”. The parties did not tell Ms Q that they were separated. The Respondent (Ms Kempton) did not tell Ms Q that the parties were separated. If the parties were separated at that point, then, I have no doubt that Ms Kempton would have told Ms Q. My view in that regard is confirmed by the fact that at the parties' second joint session (23 September 2015) they told Ms Q that, "they were temporarily separated while they reconsidered their relationship".
Going back to the first joint session (3 September 2015) with Ms Q – this independent confirmation from Ms Q means that the parties themselves still considered that they were living together as a couple – even though Ms Kempton and her two children were at that point in time, living at Suburb E. In my view, this confirms the evidence of the Applicant (Mr Meyvans) that the parties were living in a de facto relationship at this point of time.
During the course of the evidence, the Respondent sought to maintain that the parties were not living together (as a de facto couple or otherwise) during the period of time that she lived at the Suburb E address. Clearly, on the independent evidence of Ms Q, this is not correct.
As noted, at the parties' second joint session with Ms Q (23 September 2015) they advised Ms Q that they were "temporarily separated". It is apparent from paragraph 4 of Ms Q's affidavit that the temporary separation occurred on 22 September 2015. This is approximately five weeks after Ms Kempton moved into the Suburb E property.
It is important to note that the parties advised Ms Q that they were "temporarily separated”. It was indeed only a temporary separation.
My view in that regard is confirmed by paragraph 5 of Ms Q’s affidavit. On 29 September 2015, the Respondent went alone to see Ms Q. Ms Q states in paragraph 5 of her affidavit:-
“5. On 29/9/15, Ms Kempton came alone to see me. She had been to Darwin for a few days. Ms Kempton discussed behaviours she wanted to change in order to make the relationship work. During her reflections since being apart from Mr Meyvans, she had realised the importance of Mr Meyvans in her life and wanted to be in long-term relationship with him.”
I infer that merely one week after the parties’ “temporary" separation – their relationship resumed. This accords with the evidence of the Applicant. To the extent that there was ever any separation between the parties during the course of this relationship – the Applicant maintains it was no longer than a week. I did gather from his evidence that there may have been more than one temporary separation, but there are no more than one specifically referred to in the evidence. The only independent evidence before the Court is that there was one temporary separation and that has been noted by Ms Q.
During the time that Ms Kempton lived at the Suburb E address I find that she was in a de facto relationship with the Applicant. The Respondent's denials that the parties were living together at Suburb E (at any time) have been conclusively disproved by the independent evidence of Ms Q – at least insofar as the first five weeks of the Suburb E residency by the Respondent is concerned. The problem for the Respondent is, of course, that her credibility is so undermined by her adamant and blanket denial of the true situation during this period of time – that the Court cannot accept her evidence concerning the months that she lived in residence at Suburb E. Ms Kempton did concede that Mr Meyvans stayed over at the Suburb E residence some nights each week (paragraph 49 of the Respondent’s trial affidavit). I prefer the evidence of Mr Meyvans to the effect that he in fact was staying at the Suburb E residence at least five nights per week (possibly as many as six or seven nights a week). I accept that he had sufficient clothing there as he has indicated. I also accept that he kept his toiletries there. I accept that he took the children to school from that residence and picked them up and brought them home (as part of his role in caring for the children). I accept the evidence of Mr M that Mr M would collect the children from the Suburb E residence and drop them back to that residence – and that on those occasions he would see Mr Meyvans because, indeed, Mr Meyvans was the adult caring for the children on those occasions. I presume that the Respondent was at work.
I accept the Applicant's evidence that he would leave the Suburb E property in the morning (if necessary, dropping the children at school) and travel to the C Street, Suburb D property to work for the day. He was working from C Street, Suburb D. It is the case that the applicant still maintained his lease on the Suburb D apartment. The fact that he might have slept some nights in the week at the Suburb D unit during this period of time does not mean that the Applicant was not in a de facto relationship with the Respondent. It is possible to maintain two residences and for parties to still be in a de facto relationship. I note the decision of Murphy J in Jonah v White (2011) 258 FLR 236, especially at paragraphs 65 and 66 where His Honour stated:-
“65. It seems to me to be clearly established by authority that the fact that, for example, the parties live in the same residence, for only a small part of each week does not exclude the possibility that they are “living together as a couple on a genuine domestic basis” or that the maintenance of separate residences is necessarily inconsistent with parties having a de facto relationship. So much is, in my view, clear from the statutory recognition that parties to a relationship can be married but also in a de facto relationship.
66. The issue, as it seems to me, is the nature of the union rather than how it manifests itself in quantities of joint time. It is the nature of the union – the merger of two individual lives into life as a couple – that lies at the heart of the statutory considerations and the non-exhaustive nature of them and, in turn, a finding that there is a “de facto relationship.”
Murphy J’s conclusions in paragraphs 65 and 66 quoted above were confirmed by the Full Court of the Family Court of Australia on appeal (Jonah v White (2012) FLC 93-522 at paragraphs 39 and 40).
I am satisfied that a consideration of the indices contained in section 4AA(2) confirms the conclusion I have reached that the parties were living together as a couple on a genuine domestic basis and were indeed in a de facto relationship during the time that the Respondent lived at Suburb E – apart from the one week temporary separation to which I have already referred. That one week temporary separation occurred between 22 September 2015 and 29 September 2015. As the Respondent told Ms Q on 29 September 2015 – "she had realised the importance of Mr Meyvans in her life and wanted to be in a long-term relationship with him." For his part, the Applicant says that he was indeed living in a de facto relationship with the Respondent at Suburb E. To my mind, the combination of this evidence reveals a mutual commitment to a shared life. They were both still paying for various family needs. On this occasion, the Respondent may have been paying the rent on the property but the Applicant was also contributing towards groceries and other outgoings. I have already made reference to the care and support provided to the two children. The evidence of the pickups and drop-offs (kindergarten and school) completed by the Applicant is quite overwhelming. Hundreds of times (including when the Respondent was living at Suburb E) the independent records reveal that the Applicant would be conducting pickups and drop-offs for the children. This evidence accords with the evidence of the Applicant. It confirms my view that his evidence is to be preferred. It is much more likely (than not) that the Applicant was indeed living in a de facto relationship with the Respondent at the Suburb E property, waking each morning (or at least most mornings) as part of the family, taking the children to school and then going to work at the C Street property. It is conceded by the Respondent (and indeed confirmed by the Applicant) that the parties were in a sexual relationship during the period of time that they were living at the Suburb E residence.
It should also be noted that the parties became engaged in April 2016. This was while the Respondent was still living at Suburb E.
I do think it is important for the Court to address a view put forward by the Respondent that Mr M’s evidence is unreliable. Mr M is the father of the Respondent's children. Mr M has been involved in the lives of the children to a significant degree both prior to separation and (more relevantly) since his separation from the Respondent Ms Kempton. The most important part of his evidence is his confirmation that the Applicant was present on many, many occasions when he (Mr M) would collect the children and return the children. He confirmed that this was the case during the period of time when the parties lived together at C Street, Suburb D; Mr M confirmed that this was the case during the period of time when the parties lived together at Suburb E and he also confirmed that this was the case during that period of time when the parties lived at A Street, Suburb B. I accept the evidence of Mr M. I find him to be a credible witness. He was, in the main, merely confirming which adults were present when he picked up the children and dropped them off. I also accept Mr M's evidence that the boys did indicate to him (and it was apparent to him in any event) that they were very fond of the Applicant. This is not surprising. The Applicant provided a good deal of care and support for these young boys during an important part of their formative years. I find that the boys were indeed very fond of the Applicant.
I note the evidence provided by the Applicant in his affidavit filed 30 November 2018 concerning his care and support of the two children. I note, in particular, the evidence of the Applicant contained between paragraphs 56 and 70 of his affidavit filed 30 November 2018. I accept this evidence of the Applicant. The Applicant was taking the children to and from school; he was attending parent teacher meetings; he was taking the boys to extracurricular activities (including sports activities); he was taking the children to school holiday programs at R School.
I note that the Respondent appeared to be reluctant to admit that the Applicant would assist with reading to the children each evening. The Respondent did concede that the Applicant would read to the younger child. The Respondent maintained that this was because the older child did not like the Applicant. I prefer the evidence of Mr M in relation to that issue. Mr M confirmed that both children were fond of the Applicant. He does not say that the older boy did not like the Applicant. Once again, it was this failure by the Respondent to make reasonable concessions which significantly undermined her credibility.
As to the reputation and public appearances – during the time that the parties lived at Suburb E. It was certainly apparent to Mr M that Mr Meyvans also lived at that residence. The fact that others may not have realised this fact is irrelevant. I do note paragraph 60 of the Respondent’s trial affidavit where she concedes that, during the time that she lived at Suburb E – the Respondent and the Applicant would, “…go out together as a couple with my friends Ms G and Mr S.”
It became apparent in early 2016 that the Suburb E unit was too small for this family. The parties commenced looking for another property.
The parties found a property to move into at A Street, Suburb B.
On a consideration of the evidence and the reasonable concessions made by the Applicant I have come to the conclusion that the Applicant did not move into the A Street, Suburb B property until November 2016. From November 2016 until the parties relationship actually ended in August 2017, the Respondent concedes that the parties were living in a de facto relationship.
The fact that the Applicant did not physically move into the A Street, Suburb B property on a full-time basis until November 2016 does not mean that they were not in a de facto relationship between June 2016 (when the Respondent moved into A Street, Suburb B) and November 2016. I have come to the conclusion that the parties remained in a de facto relationship even though the Applicant may not have been living there on a full-time basis between June and November 2016. Even though the Respondent moved into A Street, Suburb B in June 2016 – the parties continued to live together as a couple on a genuine domestic basis. I accept the Applicant’s evidence that he had clothing at the residence. I accept his evidence that he had toiletries at the residence. The Respondent herself concedes that he continued to take the children to and from school. The Applicant was, at this point in time, heavily involved in sports activities. That seemed to commence in approximately August 2016. The Applicant continued to provide significant care and support to the children. The fact that the Applicant might not have moved all of his belongings into the A Street, Suburb B property until November 2016 is just once piece of evidence. As noted, it is indeed possible for parties to be in a de facto relationship and yet maintain more than one residence. In this regard I note again the decision of Jonah v White (2011) 258 FLR 236 per Murphy J at paragraph 65.
From the time that the Respondent moved in to the A Street, Suburb B property in June 2016 the parties were and remained engaged to be married. Their engagement took place in 2016. Throughout the period of time from June 2016 the parties remained in a sexual relationship; throughout that period of time the parties shared various expenses including groceries and holidays; indeed, the parties holidayed together during this period of time. During this period of time, the Respondent continued to entrust the care of her children to the Applicant. Indeed, throughout the three-year period from July 2014 until August 2017, the Respondent trusted the Applicant and my view in that regard is confirmed by the fact that the Respondent entrusted the care of her two young children to the Applicant. This shows a mutual commitment to a shared life. The Respondent entrusted the care of her two children to the Applicant and he fulfilled that obligation. This includes that period of time between June and November 2016 when the Respondent insists that the parties were not in a de facto relationship. Again, I prefer the evidence of the Applicant in relation to this particular period of time.
Conclusion in relation to the existence of the de facto relationship
I have come to the conclusion that the parties were in a de facto relationship from the beginning of November 2014 (when the Respondent and her two children moved into the C Street property) until August 2017 (when the parties split on a final basis). Indeed the precise date in August 2017 was 10 August 2017.
There was only one period of time when I conclude that the parties had temporarily separated. That is the period from 22 September until 29 September 2015. I reached this conclusion on the basis of inferences drawn from the evidence, especially the independent evidence of Ms Q.
The period of time during which the Respondent lived at Suburb E and the period of time between June and November 2016 when the Respondent lived at the A Street, Suburb B property reveal a similar pattern. The Applicant would live at those two residences with the Respondent most nights each week. He would (as he did throughout the period of the de facto relationship) do the ironing and assist with other house work. He would also assist with cooking. I accept his evidence in relation to cooking. The Applicant would read to the children of an evening. In this respect he was assisting the Respondent who was also reading to the children. He continued to drive the children to school and other activities. I accept the Applicant's evidence that he assisted the Respondent in relation to the running of her business. It may well be that payment was made to the Applicant for his assistance. That is not an unusual arrangement in any family.
Even if I am wrong in relation to my assessment of the situation between June and November 2016 – it won't make any difference to the conclusion of the Court.
In Dahl v Hamblin (2011) 254 FLR 49 the Full Court of the Family Court of Australia confirmed that Part VIII AB of the Act ("Financial Matters Relating To De Facto Relationships") “certainly envisages that two or more periods can be aggregated for the purpose of determining the required two year period of a de facto relationship." (Note Dahl v Hamblin (supra) at page 50 paragraph 8).
Even though I have come to the conclusion that there was a temporary separation between these parties in September 2015 it will be apparent from these reasons for judgment that an aggregation of the periods of the de facto relationship in this case well and truly exceeds the required two years (s.90SB (a) of the Act).
It will be noted from these reasons for judgment that I have come to the conclusion that during the stated periods of time the Applicant and the Respondent did indeed merge their two individual lives into life as a couple and that they lived together as a couple on a genuine domestic basis leading this Court to conclude that a de facto relationship existed between the parties during the stated periods of time – namely from 1 November 2016 until 22 September 2015 and then from 29 September 2015 until 10 August 2017.
A submission was made on behalf of the Respondent referring to a decision of the Supreme Court of Queensland in S v B [2005] 1 Qd R 537. Dutney J stated at paragraph 33:- (and by reference to a decision of the Court of Appeal of New South Wales in Hibberson v George [1989] NSWCA 100; (1989) 12 Fam LR 725):
33. De facto relationships are by nature fragile. The robust institution of marriage survives until formally dissolved by legal process, even though the parties are no longer a couple and exhibit none of the observable indicia of a domestic arrangement. It has been recognised, however, that the persistence of those indicia are fundamental to the continuance of a de facto relationship. In Hibberson v George, Mahoney JA, with whom Hope and McHugh JJA agreed, spoke of the de facto relationship as follows:
There is, of course, more to the relevant relationship than living in the same house. But there is, I think, a significant distinction between the relationship of marriage and the instant relationship. The relationship of marriage, being based in law, continues notwithstanding that all of the things for which it was created have ceased. Parties will live in the relationship of marriage notwithstanding that they are separated, without children, and without the exchange of the incidents which the relationship normally involves. The essence of the present relationship lies, not in law, but in a de facto situation. I do not mean by this that cohabitation is essential to its continuance: holidays and the like show this. But where one party determines not to “live together” with the other and in that sense keeps apart, the relationship ceases, even though it be merely, as it was suggested in the present case, to enable the one party or the other to decide whether it should continue.”
In the head note to S v B (supra) paragraph 2 notes:-
2. "That a de facto relationship ended when one party decided he or she no longer wished to live in the required degree of mutuality with the other but to live apart, and acted on the decision. Neither communication of the decision to the other party, nor the latter’s agreement with, or acceptance of it, was necessary."
Reference is made in the head note to Hibberson v George (supra) and Jones v Grech [2001] NSWCA 208; (2001) 27 Fam LR 711.
The Respondent sought to rely on those authorities and submit (I infer) that, because the Respondent has given evidence that she does not (or did not) consider that the parties were in a de facto relationship – it does not matter that she did not communicate this to the Applicant during the relevant period under the Court's consideration.
The problem for the Respondent with this submission is that the evidence is to the contrary. The findings of this Court are certainly to the contrary.
Even after the Respondent and her children moved to the Suburb E residence (that is, moved out of the C Street residence) the independent evidence shows (in particular, Ms Q) that the parties’ de facto relationship continued. Indeed, the Respondent herself told Ms Q in September 2015 that she wanted the relationship to continue. Further, in April 2016 (when the Respondent was still living at Suburb E) the Respondent accepted the Applicant's proposal of marriage. Again, this shows an intention on the part of the Respondent to continue the relationship. The evidence concerning holidays confirms that from November 2014 until August 2017 the parties went away together on holiday on approximately 25 occasions. This includes during the period of time that the Respondent was living at Suburb E. Finally, when it became apparent that the Suburb E property was too small for the family to live in – the parties (both of them) went searching for another property. At all relevant times (apart from the one week temporary separation I have been able to identify) the parties (including the Respondent) evinced an intention to continue the de facto relationship.
The conclusion I have reached is that an appropriate declaration should be made confirming the existence of the de facto relationship in accordance with these reasons for judgment. There may well be a need for consequential orders or directions in addition to the appropriate declaration. I will hear submissions in that regard. The parties will have time to draft the appropriate declaration and orders reflecting these reasons.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge Howard
Date: 9 July 2019
Key Legal Topics
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Family Law
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Contract Formation
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