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
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CaseChat Overview and Summary
The court considered the evidence and concluded that while there were indicators suggesting a de facto relationship, such as a monogamous sexual relationship, public acknowledgement of the relationship, and plans for the future, there were also factors that argued against it. Notably, the parties did not live together despite the duration of the relationship and had opportunities to do so but were hindered by other commitments. The court held that the relationship did not meet the threshold for a de facto relationship under the Family Law Act 1975.
As a result, the court dismissed the application. The court declared that Ms Monforte and Mr Saunders were not in a de facto relationship for the purposes of the Family Law Act. Consequently, the initiating application filed by Ms Monforte seeking a property settlement was also dismissed. The court considered it reasonable to engage counsel to attend, as per rule 12.28 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. The form of the order is subject to the entry in the Court’s records, and any minor typographical or grammatical errors may be reviewed or corrected.
Orders
Orders of the court
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.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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.