Monforte & Saunders
[2022] FedCFamC1F 552
•11 August 2022
Federal Circuit and Family Court of Australia
(DIVISION 1)
Monforte & Saunders [2022] FedCFamC1F 552
File number(s): MLC 6341 of 2020 Judgment of: MCGUIRE J Date of judgment: 11 August 2022 Catchwords: FAMILY LAW – DE FACTO RELATIONSHIP – Where applicant seeks a declaration pursuant to section 90RD of the Family Law Act 1975 (Cth) that the relationship was a “de facto relationship” and orders for property adjustment under s 90SM – Respondent opposes the application - Respondent concedes a form of relationship, but not achieving the status of de facto he say that it was no more than “dating” or “boyfriend and girlfriend” – Whether parties are in a relationship as a couple living together on a genuine domestic basis – No de facto relationship established – Applications dismissed Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4AA, 90RD and 90SM
Cases cited: Crowley & Pappas [2013] FamCA 783
Sinclair & Whitaker (2013) FLC 93 – 551
Jonah & White [2011] FamCA 221
Lynam v Director-General of Social Security(1983) 52 ALR 128
Division: Division 1 First Instance Number of paragraphs: 66 Date of hearing: 6 July 2022 Place: Melbourne Counsel for the Applicant: Mr Moisidis Solicitor for the Applicant: Oakley’s Legal Counsel for the Respondent: Mr Nicholson Solicitor for the Respondent: Davison Family Lawyers ORDERS
MLC 6341 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MONFORTE
Applicant
AND: MR SAUNDERS
Respondent
order made by:
MCGUIRE J
DATE OF ORDER:
11 August 2022
THE COURT DECLARES THAT:
1.The Applicant, Ms Monforte, and the Respondent, Mr Saunders, were not in a de facto relationship for the purposes of s 4AA and ss 90RD of the Family Law Act 1975 (Cth).
THE COURT ORDERS THAT:
2.That the Initiating Application filed by the Applicant, Ms Monforte, on 17 June 2020 seeking a property settlement pursuant to s 90SM of the Family Law Act 1975 (Cth) be dismissed.
3.Pursuant to rule 12.28 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) it was reasonable to engage counsel to attend.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym of Monforte & Saunders has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
McGUIRE J
APPLICATION
This is an application by Ms Monforte for a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) (‘the Act') that the Court has jurisdiction to enter into the consideration of altering their property pursuant to s 90SM of the Act on the basis that the parties were in a de facto relationship from 2014 until February 2020. Such a declaration is required to ground the jurisdiction of the Court to make property settlement orders and the applicant therefore seeks a determination and such declaration on a preliminary and discrete hearing.
The respondent, Mr Saunders, opposes the application and argues that the parties were not in a de facto relationship, although he concedes a form of relationship but not achieving the status of de facto.
Both parties were represented at the hearing, gave evidence on affidavit, and were cross-examined.
The applicant relied on affidavits all sworn or affirmed 7 June 2022 from the following:
(1)Ms B;
(2)Ms C;
(3)Mr O;
(4)Ms D; and
(5)Ms E.
The deponent of each of these affidavits was not required for cross-examination and hence the contents of the affidavits were read into evidence.
The respondent relied on affidavits of Mr F either sworn or affirmed 14 April 2022 and Mr G either sworn or affirmed 12 April 2022. Similarly, their affidavits were read into evidence without the deponents being required for cross-examination.
THE RELEVANT LAW
Section 90RD(1) of the Act provides that the Court may make a declaration that a de facto relationship existed, or never existed, between two persons.
Section 90RD(2) provides further that a declaration as to the existence of a de facto relationship may also declare any or all of the following:
(a)the period, or periods, of the de facto relationship for the purposes of paragraph 90SB(a);
(b)whether there is a child of the de facto relationship;
(c)whether one of the parties to the de facto relationship made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c);
(d)when the de facto relationship ended; and
(e)where each of the parties to the de facto relationship was ordinarily resident during the de facto relationship.
Section 4AA provides:
Meaning of de facto relationship
(1) A person is in a de facto relationship with another person if:
(a)the persons are not legally married to each other; and
(b)the persons are not related by family (see subsection (6)); and
(c)having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has effect subject to subsection (5).
Working out if persons have a relationship as a couple
(2) Those circumstances may include any or all of the following:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e)the ownership, use and acquisition of their property;
(f)the degree of mutual commitment to a shared life;
(g)whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h) the care and support of children;
(i) the reputation and public aspects of the relationship.
(3)No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4)A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
(5)For the purposes of this Act:
(a)a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and
(b)a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.
It is trite to observe that the boundaries in definition of a de facto relationship are blurred as distinct to the certainty of a marriage which provides an event and a certificate. Tree J in Crowley & Pappas[1] identifies the difficulty in courts determining whether or not a factual platform sits circumstantially as a de facto relationship given the plethora of factors that might argue for or against such a relationship.
[1] [2013] FamCA 783.
At [8] his Honour helpfully observes:
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;[2]
(b)a de facto relationship does not need to be akin to a marriage[3] although the nature of the association involved in a marriage relationship may be instructive;[4]
(c)the parties determine the nature of their relationship and it may evolve and alter, even dramatically, over time;[5]
(d)there need not be full time living together;[6]
(e)the relationship may be unhappy, but still subsisting;[7]
(f)sexual or other exclusivity is not necessary;[8]
(g)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]
[2] Footnote omitted.
[3] Moby v Schulter (2010) FLC 93-447 at [163]-[164] per Mushin J.
[4] Footnote omitted.
[5] Ibid.
[6] Ibid.
[7] Ibid.
[8] Ibid.
[9] Ibid.
[10] Ibid.
It is entirely plausible for each of the parties to have a different view or understanding of the nature of their relationship being that one may believe they have satisfied the status of 'de facto' and the other not so. In Sinclair & Whitaker[11] the Full Court noted:
[65]Given the nature of the definition of a de facto relationship in the Act the ultimate decision as to whether there is a de facto relationship at any given time is a matter for the court and not a matter for the parties. Although their perception of the nature of the relationship is a relevant matter it is not determinative.
[11] (2013) FLC 93 – 551.
In Jonah & White[12] Murphy J observed at [8] and [10]:
[10]The issue here is, in my view, not so much the veracity or reliability of the parties’ accounts of events, but, rather, the picture presented by the totality of them and the conclusion/s resulting therefrom.
[8]… I consider that the evidence of each of the parties was affected significantly by the fact that their recollections now, in respect of events past, was refracted through the prism of their own perceptions of the relationship and the varying degrees of disappointment felt by each at its demise. …
[12] [2011] FamCA 221.
Further, at [60] Murphy J more generally opined:
[60]In my opinion, the key to that definition [de facto relationship] is the manifestation of a relationship where “the parties have so merged their lives that they were, for all practical purposes, ‘living together’ as a couple on a genuine domestic basis”. It is the manifestation of “coupledom”, which involves the merger of two lives as just described, that is the core of a de facto relationship as defined and to which each of the statutory factors (and others that might apply to a particular relationship) are directed.
The comments of Murphy J above should not be read, however, as to require “living together” as a necessary or determinative factor of a de facto relationship.[13]
[13] Fairbairn & Radecki [2022] HCA 18.
An eloquent exposition of the quandary facing judges in determining whether or not a de facto relationship might have existed was made well before the introduction of the legislation by Fitzgerald J in Lynam v Director-General of Social Security[14] where his Honour was required to determine whether parties were living together on a bona fides domestic basis and opined:
… Each element of a relationship draws its colour and its significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate any individual factors and to attribute them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of opposite sex meets the statutory test.
[14] (1983) 52 ALR 128 at page 131.
It is a truism that relationships exist in many shapes, forms, understandings and public exposures. Relationships may be committed or not committed. They may be monogamous or not. They may involve an element of financial intermingling or stricter financial separation and independence. They may involve various levels of domesticity. Relationships may be “casual”. They may be (as asserted in this case) categorised as “friends with benefits”. They may involve a form of courting as boyfriend/girlfriend with a view to future but not current commitment. Suffice to observe that not all relationships of a sexual and/or romantic nature fall under the nomenclative veil of “de facto”. Against these historical authorities and the broad ranging indicators, it falls to the Court to make such a determination but where the party asserting a de facto relationship carries an onus to prove the same on the balance of probabilities consistent with s 140 of the Evidence Act 1995 (Cth).
THE APPLICANT’S CASE
The applicant relies on two affidavits filed 17 June 2020 and 7 June 2022.
The applicant appears to separate her relationship with the respondent into two distinct periods being an initial period of approximately two years when the relationship was clandestine but sexual and where the respondent was continuing to cohabit with his now former wife. The applicant says that the second period of three plus years involved public exposure of the relationship of the parties as a “couple” and acknowledgement by them accordingly. She says that the relationship was monogamous. She says that the parties enjoyed holidays together at various hotels around Australia and to the United States with their respective children.
Specifically, the applicant says that the parties' commitment is demonstrated by an advancement of some $220,000 and later a further $57,000 made by the respondent towards her former matrimonial home being to pay out her former husband and then to effect some improvements. She says that plans were drawn towards improvements to allow eventual residence of the parties and the respondent’s elderly mother in that property with the intention to live as a family unit.
The applicant says that she would care for the respondent’s elderly mother albeit initially on a financial relationship between she and the respondent’s mother but that this showed further commitment by her to a relationship with the respondent.
The applicant says that she provided the respondent with a key to her home. She asserts some financial interdependency and intermingling. In her affidavit of the 5 June 2022 at [11.21] she deposes:
[The respondent] constantly talked about his financial situation, he drew up agreements for me in relation to my house at [H Street], [the respondent] knew I didn't understand the agreements, they were explained in such a confusing way, I became anxious around [the respondent] and just wanted to 'please' him all the time. [The respondent] knew this and completely took advantage of this. I signed the Commercial Agreement not knowing what the agreement meant. The money and the agreements were constantly brought up by [the respondent], the figures were always changing. [The respondent] would send me emails and demand I sign them and return them to him. [The respondent] also sat down with my son [Mr O] and did an agreement between [Mr O] and myself. The agreement was worded in a very confusing way, and although it was signed by [Mr O] and myself, neither [Mr O or myself saw the need to have an agreement. We only signed his agreement because of [the respondent’s] persistent demands we did. Both [Mr O and I knew, understood and accepted that it was a loan agreement and I would pay him back when [H Street] was sold…
It is clear that the parties entered into a commercial agreement with the assistance of a lawyer (albeit apparently one acting for both parties) for the above-mentioned advancement of monies by the respondent to the applicant. In cross-examination, the applicant conceded that she considered the advancement to be a loan repayable by her upon the sale of the property and that she did not consider it a “gift”. Similarly in cross-examination she conceded that this commercial arrangement was not an “intermingling” of finances.
I had the advantage of seeing and hearing the applicant give her evidence in court and be cross-examined. Her evidence was given consistent with what I expect is her understanding of a committed relationship with the respondent with expectations that the relationship would develop to one of lengthy duration where the parties would be living together.
Ms E
Ms E gave evidence by affidavit that she met the applicant in mid-2009 and that they became good friends. She says towards the end of 2014 she observed the respondent visiting the applicant’s workplace frequently and solely for the purposes of visiting the applicant. She confirms that in 2015 the applicant informed her of the relationship with the respondent but that “they were keeping the relationship quiet”. She confirms that “sometime in 2016” the relationship became public and that they “let people know they were a couple”.
Ms D
Ms D's is the applicant's sister. She met the respondent in late 2014 at which time the applicant was denying “any interest” in the respondent. Ms D deposes that the applicant eventually admitted that she was secretly seeing the respondent. She confirms later public acknowledgement of the relationship. At [22] Ms D deposes:
During 2017 I would often find [the respondent] in attendance planning and doing some other type of work on [the applicant’s] house. On a number of occasions tradie mates of [the respondent’s] were also at the house working on the interior. At no time did I ever hear [the applicant] talking of the need to renovate or improve the house.
Ms D expresses her view at [26] that the applicant considered herself to be in a committed relationship and at [30] deposes to witnessing conversations between the parties as to their future plans. Ms D confirms that the respondent had a “strained relationship” with the applicant's children.
Mr O
Mr O is the now adult son of the applicant. He says that he first met the respondent in 2014 when he was 15 years of age. He says that he became aware of his mother's relationship with the respondent in late 2016 and that the relationship later “went public” with his mother spending three to five nights a week staying at [the respondent’s] home depending on his work shifts. He deposes:
[16]Mum used to cook the evening meals at home for myself and my siblings [Mr P] and [Ms Q]. Sometimes she would eat with us but most often when going to [the respondent’s] home she would prepare meals for herself, [the respondent] and [the respondent’s] mother and take them around to [the respondent’s] home. I can clearly recall her preparing the meals, taking them with her and she saying that she was taking some extra meals for [the respondent] and [Ms N]. She would cook for [the respondent] and [Ms N] most evenings she went there.
[17]She would generally return in the early hours of the morning to prepare school lunches and take my brother and sister to the bus stop.
[18]Mum was quite open about where she was going and what she was doing and there was no hiding the fact that she was staying at [the respondent’s] home.
Mr O deposes in his affidavit to a generally poor relationship between himself and the respondent.
Ms B
Ms B says that she has been friends with the applicant for over 30 years. She says that she was informed of the “secret relationship” in about 2014 and that she was used as an “alibi” for meetings between the applicant and respondent.
Ms C
Ms C deposes that she has known the applicant since 2002 and lived in Town J until 2017. She says that the applicant informed her of the relationship with respondent in mid-2016 and that the relationship had commenced in late 2014.
Ms C deposes to having had discussions with the applicant in respect of the applicant's future relationship with the respondent and plans that they had discussed.
Ms C deposes [53] to the “very close relationship” between the applicant and respondent's mother including that she would continue to visit the elderly mother after the financial relationship had ceased.
THE RESPONDENT’S CASE
The respondent relies on his own trial affidavit of 8 June 2022.
The respondent denies that his relationship with the applicant ever achieved the commitment or status of a de facto relationship.
The respondent says that the parties never intertwined their financial affairs save and except for an equal commercial investment in the property at H Street, Town J evidenced by a signed agreement.
The respondent says that the parties never lived together in a joint residence.
The respondent says that the parties never engaged personally in the care or commitment of each other's children.
The respondent acknowledges that the parties contemplated a progression of the relationship including for a committed future together but where he concedes a public relationship of “boyfriend/girlfriend”, he says that circumstances were such that the progression to a committed de facto relationship did not eventuate.
The respondent agrees with the applicant that there was a clandestine sexual relationship from 2014 until late 2016. He says that the parties “dated” as boyfriend/girlfriend from late 2016 until early 2020. The respondent says that he was still living with his wife when the parties’ sexual relationship commenced and did so until early 2016. The respondent says that he and his wife together with their children travelled for over two months overseas from early 2015. The respondent was not challenged as to the assertion in his affidavit at [11] that the applicant may have been in a relationship with another man during 2015.
The respondent says that his wife was described as his spouse on his taxation returns until mid-2017 where after he was described as “single” and at no time made reference to the applicant as his partner.
The respondent says that his relationship with the applicant became “public” in late 2016 but that to the best of his knowledge the applicant continued to receive spousal maintenance from her former husband beyond 2016. Similarly, the respondent says that he is not aware of any indication by the applicant to the Australian Taxation Office or Centrelink that she was in a relationship with him.
The respondent concedes that the applicant would stay overnight at his residence from 2016 but perhaps not to the frequency as asserted by the applicant.
At [22] of his affidavit[15] the respondent deposes:
I deny that the Applicant ever cleaned for me at any of my properties on the occasions that she was there. The Applicant may have cooked a meal once a fortnight for me throughout our relationship. The only time the Applicant ever cleaned my [K Street] or [L Street] property was when she was at that property on an employed basis to care for my Mother.
[15] Filed 8 August 2022.
The respondent agrees that he made advancements totalling $277,000 to the applicant firstly for the purposes of buying out her former husband's interest in their home and secondly towards some renovations on that property. He says that the advances were made pursuant to a commercial loan agreement which provided with some specificity for firstly the advancement equalling the applicant’s equity in the property at the time and secondly, for repayment of the loan on terms upon the sale of the property with options in each of the parties accordingly. The inference I am asked to take from this evidence is that the commercial loan agreements sits contrary to a mingling of finances in circumstances of a committed domestic relationship between the parties.
The respondent candidly admits that discussions were had between the parties and plans considered with concept drawings made towards improvements in the applicant's home towards the parties jointly residing there and also for the respondent's mother to live in the property.
The respondent says that his advancement of monies towards the property was protected by way of a caveat placed contemporaneously with the loan agreement and advancement and where he did not seek to have his name placed on the title.
The respondent agrees that the parties spent holidays together including a trip to America in early 2018 with each of their children. At [26] of his affidavit[16] the respondent deposes:
It became obvious over the 9 days that we spent together in America in 2018 that we were never going to be able to live as a “blended family”. Our two families simply didn't get along. Whilst this did not change my feelings for the Applicant at the time, it made it abundantly clear that we were not going to live together as a couple or in a blended family whilst we still had dependent children. We each had children for whom we were still responsible and who we were still caring for. We conducted our relationship outside of and subject to those family responsibilities and commitments. This meant that whilst we were in a relationship together, it had very significant limitations. We had separate homes and lived separately and with our own children. We were limited in the time we spent together, and our relationship came “second” to our respective families and our respective family responsibilities.
[16] Ibid.
At [32] of his affidavit[17] the respondent continues the theme thus:
The applicant and I both hoped, and in the early stages of our relationship planned, for our relationship to progress further. It just never did. After the trip to America in 2018 and the disaster of trying to bring our children together, it was clear that we could not blend our families. It was equally clear that we would not be able to take our relationship to the next stage while we still had dependent children. We agreed that we would re–visit things after each of our youngest children had finished school, which was not until 2021.
[17] Ibid.
Further, at [33] of his affidavit[18] the respondent deposes:
In [late] 2019 through to [early] 2020, I decided to rent out my home at [L Street] to see if that was a viable business proposition for me over the summer. It was also a “trial” to see whether it would work for the applicant and me to live together. I thought of it as a final attempt to see if our relationship could progress further given the difficulties we had already had. We had agreed to further renovate the [H Street] property earlier that year, and it was convenient for me, as project manager of the renovations works, to stay at [H Street]. I stayed at the [H Street] property for 5 nights in total over [late] 2019 to [early] 2020, although those were not 5 nights in succession. I did not stay in the Applicant's bedroom on any of those nights. I stayed in the guest/5th bedroom of the property. During that time, it became apparent very quickly that the Applicant’s sons, [Mr O] and [Mr P], were very unhappy about me staying there. It was so tense that the Applicant arranged for me to stay at [M Hotel] in [Town J] where she was working at the time for approximately 5 nights. She told me she had organised a cheap deal at $35 per night on the basis of her employment. I was later told by staff at [M Hotel] that the Applicant had secured that accommodation in a manner that was contrary to her conditions of employment.
[18] Ibid.
Mr F
Mr F provided an affidavit[19] for the respondent. He was not required for cross-examination. He says that he first met the respondent in 2012 after which they activated a joint interest in property development. He deposes to some understanding of the respondent’s investment and advancement towards the applicant’s property. His evidence is otherwise unremarkable and of little assistance.
[19] Filed 8 June 2022.
Mr G
Mr G provided an affidavit filed 8 June 2002 and was not required for cross-examination. He says that he has known the respondent since about 1978 where they have been friends, work colleagues and business partners as property developers. His evidence is otherwise of no assistance to the discrete issue for my determination.
CONSIDERATION
This is a difficult and finely balanced matter where there are indicators and factors arguing both for and against there being a de facto relationship between the applicant and respondent. Certainly, having had the advantage of seeing and hearing each of the parties give their evidence in court and be cross-examined, it is plausible to conclude that the applicant may subjectively believe that her relationship with the respondent had achieved such a duration and commitment that she thought it a “de facto relationship” with the parties publicly acknowledged as a “couple” working together towards a future. Similarly, however, it is plausible and available for me to conclude that the respondent did not achieve the mindset of the applicant where, although having some ambitions similar to the applicant, he considered the relationship moved no further than “dating” or one of “boyfriend/girlfriend” where the “plans” were frustrated and underachieved.
These parties had a sexual relationship where, on the evidence, such appeared monogamous between late 2014 and early 2020. The relationship is therefore of some duration.
It is clear that on both parties’ accounts that the relationship was clandestine for its first two years certainly without public acknowledgement or exposure but that in its later phase of some three years there was public exposure and acknowledgement of the relationship which is consistent with the “coupledom” and commitment of a de facto relationship.
The parties holidayed together within Australia and overseas. This is consistent with an indicator of a committed relationship.
The respondent contributed to the applicant retaining her former matrimonial home where it seems that she was unable to obtain a loan from a bank to pay out her former husband. Regardless of the documentary evidence of these advancements, it is an indicator of an emotional commitment by the respondent to the applicant reinforced by a financial commitment and hence a form of intermingling of finances.
That the parties made plans towards living together upon the appropriate renovations to the applicant's former matrimonial home and where the parties each concede that discussions were had and plans made towards them enjoying life together into the future. This is again an indicator of a committed relationship.
There are, however, factors and evidence which argue against the relationship achieving the status of a “de facto” one.
The parties did not live together despite the duration of the relationship. It is clear that they had opportunities to do so although it is equally clear that barriers were placed against this taking place as for example by the commitment of each to the care and support of their children.
There is no evidence before me of any intermingling of finances between the parties save and except for the ambiguity referenced above to the commercial loan agreement and advances made by the respondent to the applicant. Whilst above I have considered that this loan agreement and advancement might be indicative of a committed relationship it is equally an indication of a relationship that might not have achieved that status. That is, the respondent felt the need to secure his advancement by a document secured by caveat. He did not seek a title to the property. He anticipated repayment of the monies advanced (conceded by the applicant) and on specific terms. It follows, therefore, on a reading of the commercial agreement and the surrounding evidence that such was of a commercial nature only and contrary to any emotional and financial commitment between the parties.
There is little or no evidence of any commitment by either of the parties towards the other's children. Whilst there is some evidence of mutual coaching of sports teams, the thrust of this evidence is that it is coincidental rather than a form of positive commitment undertaken with regards to the relationship between the parties themselves. Further, the evidence is that the relationship between the respondent and the applicant's children was manifestly poor and probably contributed to the effect of the parties’ plans not coming to fruition. It follows, therefore, that the conceded commitment of each of the parties to their then dependent children is an indicator that they did not take the step towards commitment of their own relationship.
In conclusion, and after consideration, I am not satisfied that the applicant has discharged her onus to prove in this case on the balance of probabilities that the parties’ admitted relationship had achieved the status of a committed couple or a de facto relationship. It seems that extraneous factors thwarted what were plans to this end but which never came to fruition. Such is perhaps evidenced by the very cross-examination, competent as it was, of the applicant's counsel of the respondent where he attempted to obtain concessions from the respondent as to a “commitment” by posing questions such as “you planned to have a future together?”; “you undertook a trip to America to trial you living together?"; “there was a contemplation of you living together in a committed relationship?”; “you drew concept drawings and made plans (perhaps even commenced) towards renovation of the applicant's home'?”; “you planned to live together?”. To each of these questions the respondent agreed but continued that these were “plans and contemplations” only but which did not come to fruition.
There is the no evidence of financial intermingling between the parties. I generally favour the commercial loan agreement to be an indicator other than financial intermingling in its certainty as to both contribution and repayment.
I find that the evidence here falls short of me being able to make a finding of a de facto relationship. Certainly, the relationship was secret or clandestine for its first two years and could not, given the surroundings circumstances, be then categorised as a committed de facto relationship. Its public exposure from late 2016 to the start of 2020 was unaccompanied by any joint residence or financial interdependence. I am not of the view that the making of plans or the expressing of ambitions are of themselves sufficient to objectively signify a commitment such as required to establish a de facto relationship. Plans and ambitions may be admirable but naïve. They may be subject to insurmountable objective hurdles and not therefore realistic. Perhaps it is the nature of relationships, de facto or marriage types, that they run a course towards their concluded status. In this case, I accept the respondent’s evidence that the relationship had not moved from that of boyfriend/girlfriend despite the conceded ambitions of each of the parties.
There will be a declaration pursuant to s 90RD of the Act that there was no de facto relationship between the parties and the application for orders for a property settlement will therefore be dismissed.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire. Associate:
Dated: 11 August 2022
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