Mulligan and Teale

[2015] FCCA 1965

FEDERAL CIRCUIT COURT OF AUSTRALIA

MULLIGAN & TEALE [2015] FCCA 1965

Catchwords:
FAMILY LAW – Property – whether the court has jurisdiction to hear a de facto property application – whether and if so when a de facto relationship existed between the parties.

Legislation: 
Family Law Act 1975 (Cth), ss.4AA, 90RD, 90SM

Evidence Act 1995 (Cth), s.140

Cases cited:
Norton & Locke [2013] Fam CAFC 202
Jonah & White [2011] FamCA 221
Owens & Benson [2014] FamCAFC 243
Briginshaw v Briginshaw (1938) 60 CLR 336

Applicant: MR MULLIGAN

Respondent: MS TEALE

File Number: NCC 2372 of 2014

Judgment of: Judge Terry

Hearing dates: 9, 10 & 11 June 2015

Date of Last Submission: 11 June 2015

Delivered at: Newcastle

Delivered on: 23 June 2015

REPRESENTATION

Counsel for the Applicant: Mr Davies

Solicitors for the Applicant: Bale Boshev Lawyers

Solicitor Advocate for the Respondent: Mr Fryatt

Solicitors for the Respondent: Stacks The Law Firm

ORDERS

1. The Initiating Application filed on 12 September 2014 is dismissed.

2. Further consideration of the Respondent’s costs application is adjourned to 4.00pm on 24 June 2015.

3. The Respondent’s solicitor has liberty to appear by telephone on 24 June 2015.

IT IS NOTED that publication of this judgment under the pseudonym Mulligan & Teale is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT NEWCASTLE

NCC 2372 of 2014

MR MULLIGAN

Applicant

And

MS TEALE

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons for judgment were delivered orally and have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. On 12 September 2014 Mr Mulligan (“the applicant”) filed an application for a property settlement pursuant to s. 90SM of the Family Law Act 1975. He alleged that he and Ms Teale (“the respondent”) were in a de facto relationship between (omitted) 1999 and 31 December 2012. 

3. On 19 November 2014, the respondent filed a response seeking dismissal of the application. She said that the court did not have jurisdiction to hear the matter because the parties were not in a de facto relationship which broke down on or after 1 March 2009.  It was her case that at its highest, the parties were in a de facto relationship from (omitted) 2006 to August 2006.

4. As a result the matter was listed for a discrete hearing about the jurisdictional issue as required by Norton & Locke[1] and that hearing took place two weeks ago. 

   [1] Norton & Locke [2013] FamCAFC 202

5. The relevant section of the Family Law Act 1975 is s. 90RD which provides as follows:

   (1)     If:

   (a) an application is made for an order under section 90SM [….] and

   (b)a claim is made in support of the application that a de facto relationship existed between the applicant and another person

   the court may for the purpose of those proceedings declare that a de facto relationship existed or never existed between these 2 persons.

   (2)A declaration under subsection (1) of the existence of a de facto relationship may also declare any 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;

   (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. 

6. It is possible, as would be apparent from the wording of this section, for the court to make some finding other than the one sought by either of the parties. For instance the court could find that a de facto relationship existed but for a different period than either of the parties suggested.

7. S.4AA(1) of the Family Law Act 1975 provides as follows about the meaning of de facto relationship:

   A person is in a de facto relationship with another person if:

   (a)         the persons are not legally married to each other; 

   (b)      the persons are not related by family;  and

   (c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis. 

8. The applicant and respondent satisfy (a) and (b). They are not and have never been legally married and they are not related by family, and the issue I need to decide is whether they satisfy (c), in other words whether having regard to all the circumstances of their relationship they had a relationship as a couple living together on a genuine domestic basis and if so for what period. 

9. S. 4AA (2) sets out circumstances the court can take into account when trying to work out whether persons have a relationship as a couple living together on a genuine domestic basis. I will consider them later after I make findings about the evidence but I will refer here to the decision of Murphy J in Jonah & White[2] because it is important in the context of this case.

   [2]Jonah & White [2011] FamCA 221.

10. Jonah & White is a first instance decision so it is not binding on me but I find it very persuasive and I concur with the following views expressed by Murphy J:

    It is in my opinion instructive that the Commonwealth legislature did not provide for relief of the type contemplated by Part VIIIAB of the Family Law Act in circumstances where one party has, by their words or actions, provided care, love or support to another or, indeed, in circumstances where one party has induced in the other an expectation of a relationship of greater commitment than that which transpired. Rather, the legislature has made provision for that relief upon satisfaction of the jurisdictional fact that a relationship of a particular, statutorily-defined, type exists.

    In that respect, it seems to me also instructive that the Commonwealth legislature did not provide for relief of that type in circumstances where two people were parties to, for example, a “domestic relationship”, or, as in New South Wales, a “close personal relationship”, but, rather, only where the parties were in a “de facto relationship” as defined. 

    In my opinion, the key to that definition 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 or 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 burden of proof

1. The applicant bears the onus of proof and to succeed he must establish on the balance of probabilities that the parties were in a de facto relationship, in other words I must be satisfied that the applicant’s claim is more probable than the respondent’s in respect that issue. That is reiterated in many cases including Owens & Benson.[3] 

   [3] Owens & Benson [2014] FamCAFC 243

2. In Briginshaw & Briginshaw[4] the High Court said that in order for a court to be satisfied about something on the balance of probabilities it must:

   … feel an actual persuasion of its occurrence or existence.  It cannot be found as the result of a mere mechanical comparison of probabilities independently of any belief in its reality … at common law it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. 

   [4] Briginshaw v Briginshaw (1938) 60 CLR 336.

1. During the applicant’s counsel’s submissions we had an exchange in which I suggested that in applying the burden of proof, I needed to take into account the gravity of the issue at stake, namely that it was a claim for a property settlement. The applicant’s counsel disagreed with me and referred me to a passage in the decision in Owens & Benson where Austin J said as follows: 

   The respondent [to the appeal] only needed to discharge his burden on the balance of probabilities. The ultimate issues about when the de facto relationship ended and for how long it endured were not issues of such nature or gravity as to enliven the application of s. 140(2) of the Evidence Act. The provisions of s. 140(1) of the Evidence Act capably accommodated the issues at hand and the evidence adduced by the parties in respect of those issues.

2. The problem with that passage is that Finn and Strickland JJ, the other judges making up the Full Court for that appeal, said that while they agreed with the orders Austin J proposed (that the appeal should be dismissed) they were not necessarily persuaded that the application of s. 140(2) of the Evidence Act1995 was not enlivened in relation to the issue of the jurisdictional fact as to whether a de facto relationship existed beyond 1 March 2009. 

3. Therefore the view of Austin J in Owens & Benson as set out above has to be treated as obiter.

4. S. 140 of the Evidence Act 1995 provides as follows:

   (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

   (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

   (a) the nature of the cause of action or defence; and

   (b) the nature of the subject-matter of the proceeding; and

   (c) the gravity of the matters alleged.

5. I do not see personally how you can separate those two subsections. They are to be read together. 

6. However insofar as Austin J was saying that a case involving a de facto property settlement claim and a determination for that purpose about whether a de facto relationship existed, is not the kind of case where the court has to be extra cautious in ensuring that there is evidence which supports a finding on the balance of probabilities I would agree. It is not a case involving fraud or a case involving a decision about whether to allow an irreversible medical procedure.  Insofar as Austin J was saying that I agree with him and it may in fact be all that was intended by that passage in Owens & Benson. 

7. In summary, I must be satisfied on the balance of probabilities that a de facto relationship existed between the applicant and respondent insofar as necessary to give this court jurisdiction and I do not consider that there is anything in the nature of the case or the gravity of the case which means that I have to be extra, extra careful to make sure that the evidence supports such a finding.

The evidence

1. In the applicant’s case evidence was given by himself, his brother Mr W, his friend Mr D and his mother Ms S

2. In the respondent’s case evidence was given by herself and her friend Ms J.

3. The affidavits of the supporting witnesses all contained conclusions about the relationship which I cannot treat as evidence and the evidence they did give has to be treated with caution because it involved people trying to recollect events which occurred many years ago with nothing obvious to anchor their recollections. Their evidence was brief and not particularly helpful.

4. As for the applicant and respondent, I must be very alive to the possibility that both of them might have tailored their evidence with a view to proving the case they wanted the court to accept. 

5. The applicant and respondent each accused the other of taking documents which might have supported their case. The applicant said that the respondent took his diaries for the 2006 to 2011 period.  The respondent said that the applicant took all the paperwork from the shed when he left in early 2013. I cannot make any findings about where the truth lies about those cross-allegations. 

6. The applicant’s counsel urged me to find that as between the parties the applicant was the better witness but I am not satisfied that this was the case.

7. The respondent was a bit eccentric in the witness box. She said that she might vomit. She said that she was not going to come back the second day although she did. She was eccentric but I considered her reasonably frank and the applicant agreed that the details she gave in her affidavit of a number of conversations between the parties were accurate.

8. There were many problems with the applicant’s evidence.

9. His affidavit contained many generalisations and conclusions which I cannot place any weight on because conclusions are not evidence and generalised statements such as “we discussed moving up the coast” are pretty useless because without detail what can I do with them.

10. I cannot place weight on the content of paragraph 38 of the applicant’s affidavit which was really just a submission about his case. Insofar as it contained anything like evidence, it was just conclusions without detail.

11. When challenged in cross-examination, the applicant often did not have any independent recollection of events. He would say in answer to questions “it’s in my diary” and sometimes it wasn’t.

12. In paragraph 7 of the applicant’s affidavit he said that:

    During the relationship Ms Teale and I often celebrated our anniversary each (omitted) and we would often do something special like go out together for dinner or to a pub to celebrate. 

13. There is no mention of any such occasion in the diaries. There is a reference to “our anniversary” above two of the early entries on (omitted) but no evidence that the parties went out and celebrated. There are other references in the diaries to people going to the pub or going to dinner or going to friends’ places. There is nothing like that ever on (omitted). 

14. There were a number of credit issues about the applicant’s affidavit.  

15. The applicant did not mention in his affidavit that when he returned to live at what I will call the home property in late 2011 or early 2012, he in fact moved into the shed not the house. If you read his 2012, diary it is abundantly clear that he was living in the shed. He was going down to the house for meals at night but there can be no doubt if you look at the entries in the diary about where he was actually living and he did not mention that in his affidavit. 

16. The applicant did not mention in his affidavit although he admitted during cross-examination, that it was correct that in August 2006 after he had been living at the home property for a few months, the respondent repeatedly and forcefully asked him to leave. He did not mention that when the respondent did so he moved out of her bedroom and built himself a bed in another room.

17. The applicant said in his affidavit that in 2004 he engaged some contractors including Mr T to work on the bush block and that he paid them for the work they did. He gave details about paying their invoices and said that he did not receive any money from the respondent for those invoices. That is untrue because the respondent provided evidence of having transferred those exact sums of money to the applicant. 

18. It is also abundantly clear from the respondent’s affidavit that she was the one who paid for the Property A which was purchased in 2004.

19. The applicant did not mention in his affidavit that he was on Centrelink benefits in 2006 and that he gave Centrelink his mother’s address as his personal address. 

20. There were numerous serious omissions in the applicant’s affidavit which give rise to concern in my mind. It does not necessarily mean that I will decide every issue against him but it does mean that I will have a have very careful look at the evidence as a whole before deciding whose evidence I accept about particular issues. 

A general history

1. I cannot be sure when the parties met but it was common ground that they commenced a sexual relationship on (omitted) 1999. 

2. The applicant was then 41 and was living in premises called the (omitted) in (omitted), which he was renting from (omitted). He also operated a small business as a (business omitted) from those premises.

3. The respondent was 35 and was living at Property A which she owned following a property settlement. The Property A property was on two titles. The house was on one title and I have already referred to that as the home block. The parties called the other property the bush block and I will adopt that term. The respondent was in receipt of a Disability Support Pension.

(omitted) 1999 to April 2006

1. There was considerable agreement about the events between (omitted) 1999 and April 2006 although there was some disagreement and obviously a very different interpretation placed on events. 

2. There was agreement that the parties continued to live separately and apart, the applicant in the (omitted) and the respondent in her home. 

3. There was agreement that the parties had a sexual relationship from (omitted) 1999 to April 2006. The respondent described it as a romantic relationship.

4. There was no dispute that the applicant frequently went to the respondent’s home and that the respondent sometimes visited the applicant’s premises. The respondent often provided evening meals.  The respondent met the applicant’s parents who were then both alive and living in (omitted) and she had some social contact with other members of the applicant’s family including his brother Mr W. The applicant met and had some occasional contact with the respondent’s parents. 

5. The parties went on some trips together locally and had some weekends away.  The applicant visited the respondent in hospital when she was ill for a few days. His diary does not support his assertion that he took her to hospital, he did not say that in his diary, but it does support his assertion that he visited her so I am prepared to accept that. The respondent accompanied the applicant to some of his medical appointments.

6. During the 1999 to April 2006 period the applicant did some work on the home block. His assertions about this in his affidavit were fairly general but there were concessions that work was done and the parties also undertook a joint venture on the bush block which involved milling timber. 

7. The applicant and respondent had their quarrels during this period.  For example there is an entry in the applicant’s 1999 diary which says that:

   Ms Teale –

   that was the respondent’s name then –

   Ms Teale and I split up. 

   but the quarrels seem to have been short lived and the sexual and/or romantic relationship continued.

8. However despite all those things the parties in many respects continued to live separate lives during this period.

9. The applicant continued to operate his business and the respondent continued to receive the Disability Support Pension. The parties did not support each other financially and neither told Centrelink or the Australian Taxation Office when returns were filed that they were in a de facto relationship or that they were a couple. 

10. The applicant did work on the home property but this was always on a commercial basis.

11. The parties gave differing evidence about how this manifested itself.

12. The respondent said that she paid for materials and paid the applicant cash of $35.00 an hour for the work he did. 

13. The applicant said that he was not paid for his labour as he went but that in 2002 and 2003 the respondent signed documents acknowledging the amounts she owed him for his work. He said, and this is one of the little mysteries in the case that I will never be able to resolve, that he was eventually paid these amounts in 2008 when the bush block was sold whereas the respondent said that no part of the money paid to him in 2008 was referrable to the 2002 and 2003 documents. 

14. The respondent claimed that although she acknowledged in the 2002 and 2003 documents that she owed the applicant money for work done for her, that was not really the case and she signed the documents to help the applicant out because he said he needed evidence that money was owed to him to get a loan.

15. There was nothing particular to support the respondent’s claim and in assessing the probability of her claim that she paid the applicant as they went along, I have to bear in mind that she was on a Disability Support Pension so she would not have had much disposable income. However what the respondent did have during that period was a burgeoning credit card debt so her claim is not entirely unbelievable. 

1. I cannot determine what the truth lies in relation to the meaning of the 2002 and 2003 documents but in my view it does not really matter because however you look at it, all of the evidence suggests that whatever work the applicant did on the home property, he did on a commercial basis. He was either paid for it at the time or documents were signed indicating that he would be paid for it in the future.

2. In 2004 the parties engaged in a joint venture on the bush block. A (business omitted) was bought and it was paid for by the respondent. There can be no doubt about that, not only because she produced evidence of the money being transferred to the applicant but because there is clear evidence which I accept, that she sold the (business omitted) to the applicant a few years later. 

3. There is no question that the respondent purchased the (business omitted). At around that time she went heavily into debt with a loan to provide her with money to pay out her credit cards and obtain the money to buy the (business omitted) and do some other things.

4. In 2005 the applicant fell into dispute with (omitted) Council over his occupation of the (business omitted).  In late 2005 he asked the respondent if he could store some of his stuff in the bottom shed at her property and she agreed and he also took some of his stuff to his mother’s in (omitted). 

April to August 2006

1. In 2006 the applicant was required to leave the (business omitted) and in April 2006 he moved into the respondent’s home and he and the respondent began to share a bedroom. He took more of his things to her home at that time.

2. There was no dispute that the period after the applicant moved into the respondent’s home was not a terribly happy one. The applicant admitted in cross-examination that he was drinking quite a bit at the time.  He admitted that he was sometimes mouthy toward people on the television in quite an unpleasant way which upset the respondent. I think there was an incident where he admitted throwing something and there was no dispute that leading up to August 2006 and into August 2006 the respondent kept telling the applicant that she wanted him to leave. 

3. The applicant did not mention this in his affidavit but he agreed during cross-examination that the details the respondent provided about it in her affidavit were correct.

4. There was also no dispute that the applicant refused to leave entirely but he did move out of the bedroom and built himself a bed in the sunroom.

5. The respondent said that the parties did not have a sexual relationship after that occurred. The applicant said in his affidavit that the sexual relationship continued, indeed he said that it continued into 2012. 

6. The applicant’s assertion is a bare assertion.  The way the respondent described the relationship after August 2006 inclines me to think her version of events that the sexual relationship ended is more probable, but it is not something I can absolutely confidently make a finding about and I will explain why later on.

August 2006 to late 2009

1. From August 2006 onward, when the applicant moved out of the bedroom and built himself a bed in the sunroom, there was a growing divergence in the parties’ lives. 

2. There was no dispute that after the watershed in August 2006 the applicant continued, for at least part of the time, to live at the home block. If you have a look at the respondent’s diary for 2007 it is clear enough that “Mr Mulligan” was still part of her life and was coming and going.  There is no doubt that after August 2006 the applicant continued to be around.

3. The applicant continued to use the toilet and shower in the home. He continued to have some of his belongings on the home property. However he was doing other things, such as staying one night a week with his mother in (omitted) during one period of time. He also began looking after a property for Ms R who lived in the area and spending one night a week on her property sometimes. 

4. If you have a look at the supporting affidavits filed by the applicant, there is no evidence of the parties having any social outings or any interaction with each other’s families from 2006 on.

5. There is some evidence of hostility between the parties. For example, in July 2007 the respondent injured her foot while helping the applicant load firewood into a vehicle. The respondent claimed that the applicant drove off and left her in agony. The applicant denied this but the respondent made an entry in her 2007 diary about her broken foot and the applicant admitted that he wrote in the diary under that entry “Suk shit bitch.” He said that he did it as a joke but it is very hard to see the joke.

6. So the applicant was still around from time to time but the evidence of the parties having even a close personal relationship after the August 2006 watershed is not easy to find. 

7. A big issue in the case was when a structure called the top shed was constructed on the home property. The top shed is about 300 metres from the house. It was the applicant’s case that the shed was not constructed until 2009 and that it was only at that point that he put his things including his bed in the shed.

8. The respondent said that in 2007 the applicant began moving his things out of her house and that he moved his bed into the shed. She said that a shed was constructed in 2007 and some extensions were done to it in 2009.

9. It is very difficult for me to resolve the dispute about whether the top shed was substantially built in 2009, as the applicant asserted, or partially constructed in 2007 and extended in 2009 as the respondent asserted. 

10. I am not a builder. There is the letter from (omitted) Council concerning the shed which is dated 2009 but it talks about extensions to a shed, not a complete build of a shed, which is what the applicant said happened in 2009. There is documentary evidence of work having been done on the shed in 2009 but that does not mean that work was not also done in 2007. It is impossible for me to determine exactly when the shed was constructed.

11. The only thing I would say about the shed construction is that again it is an example of the very commercial nature of the relationship between the parties. The applicant kept extremely detailed records of the work he did on the shed in 2009.  He kept detailed records of labour and he kept all the receipts for the materials. He clearly approached it as a commercial job. 

12. The respondent gave some evidence about that.  She said that the following occurred in 2007 but leaving that aside for a moment, she said that:

    The applicant said to me, I’m going to build a steel door and lockable windows, a lockable gate to your top shed so that I can lock up my belongings, tools and equipment. I said, okay, I will pay for the materials because when you eventually leave I will still have the shed.

13. In cross-examination the applicant admitted that this exact conversation occurred.

14. There is no doubt that at some point a shed was built. There is no doubt that some labour was put into it by the applicant. There was an admission that the respondent paid for the materials. The applicant treated the matter on a very commercial basis. It was not done out of love or the goodness of his heart. He kept a record of every single thing he did on the shed in 2009 and how much time it took him and he kept all the receipts for the materials.

15. I cannot resolve the issue of whether the shed was just a roof and had no concrete floor until 2009 or whether it was built over time up to 2009 but there is no doubt that from August 2006, the applicant was not sharing a room with the respondent and he had been asked repeatedly to leave the property. He continued to keep his things there but there were ebbs and flows in the relationship between the applicant and the respondent if you have a look at the respondent’s diary for 2007. 

16. In December 2007 the applicant asked the respondent if he could buy the (business omitted) from her.[5] He agreed in cross-examination that the respondent’s evidence about this in her affidavit was word for word correct, namely that he approached her and said that he wanted to buy the (business omitted), that he offered her a price, that they had a disagreement about the price but that eventually the respondent accepted the price he offered and that ownership of the (business omitted) was transferred to him. Again a totally commercial dealing.

    [5] Respondent’s affidavit paragraph 108

17. There was also an agreement in late 2007 that the applicant would help the respondent to develop the bush block which she needed to develop and sell to clear her mortgage and again it was a commercial dealing.  The respondent drew up a statutory declaration in which she set out what the agreement was, namely that the applicant would do work on the block to prepare it for sale and ultimately, she would pay him 50 % of the profit. The agreement was carried into effect.

18. During the course of the sale of the bush block, the purchasers asked for a shed to be built on the block and they released part of the deposit to pay for it. The applicant built the shed and the respondent paid him to do so from the deposit monies. 

19. By late 2008 the applicant had been paid the amount that was due to him from the development and sale of the bush block. He still had his things stored on the respondent’s property and he was still coming and going from the property as far as I can make out. There was work done on the shed in 2009.  Whether it was the complete construction of it or just additional work I can’t be sure but there was certainly work done in 2009.

Late 2009 to late 2011

1. At some point prior to late 2009, the applicant began renting a storage shed in (omitted) and in late 2009 he also began renting premises in (omitted). 

2. It was the respondent’s case that the applicant moved off her block in late 2009 and based himself in (omitted) where he had leased premises and the storage shed and that the parties had no contact for the next two years.

3. The respondent said that he based himself in (omitted) out of necessity. He maintained that he and the respondent continued their relationship and in support of his case he produced some telephone records but they do not especially help him. At best they show some telephone communication between the parties commencing on 24 September 2011. 

4. The applicant said that those were all the documents he had but that isn’t good enough because he could have issued a subpoena and obtained other telephone records if he felt they would have helped to establish his case that there was telephone communication at an earlier time. 

5. The applicant overstated the frequency of the calls as they appear in the records he did produce but it does seem that from September 2011 onwards there began to be some telephone communication between the parties about once a week, which is a little different to what the respondent said. She said that she and the applicant did not meet up again until December 2011.

6. Be that as it may, the applicant did not produce any evidence at all of a continuing relationship between himself and the respondent in the 2010/2011 period save for putting forward those telephone records which showed some telephone communication from late September 2011 onwards. I cannot be satisfied on the balance of probabilities that the applicant is telling me the truth and that there was any relationship or even any communication between the parties between late 2009 and late 2011.

Late 2011 to early 2013

1. It was common ground that in late 2011 the applicant returned to live at the home property. There was a dispute about why it happened. The applicant said that the respondent asked him to come back for security.  The respondent said that the applicant told her that he was having trouble paying his rent and needed to find somewhere else to go and she took pity on him and offered to let him come back to the home property.

2. I cannot be satisfied about where the truth lies about that. Either could be true. I tend, if I had to make a decision, to the belief that the respondent’s version of events is more likely to be true because I accept that there was no evidence of any contact or communication or relationship between the parties between late 2009 and September 2011.

3. Whatever was said between the parties, it resulted in the applicant returning to the home property.  However it is abundantly clear from the applicant’s diary that he moved into the shed and not into the house. It is also clear, and the respondent admitted this, that the respondent cooked a lot of meals for the applicant and looked after him on occasions when he was sick. The applicant did some odd jobs on the property but did not pay any rent.

4. After the applicant’s return to the home property the parties’ relationship became increasingly difficult. 

5. The applicant said that the de facto relationship, which is what he asserted the relationship to be, ended on 31 December 2012. It is impossible for me to ascertain why he picked that particular date. If you have a look at his diary it does not seem a significant date and he did not in fact leave the property on that day. He did not leave until early 2013 after he received a letter from the respondent’s solicitor asking him to leave.   

6. The applicant’s diary does not support his assertion that the parties had a sexual relationship during this period. It does not support an assertion that he made any significant improvements to the shed on the home property. There is reference in his diary only to him doing odd jobs. 

7. At some point in her efforts to get the applicant to leave the respondent threatened him. The applicant reported the threats to the police and the respondent was arrested and an Apprehended Domestic Violence Order (ADVO) was taken out against her. That was an unfortunate incident but the applicant left the home property not too long afterwards after a letter was sent to him by a solicitor acting for the respondent.

8. That is the factual background against which I have to decide whether the applicant’s assertion that the parties were in a de facto relationship from (omitted) 1999, the first occasion on which they had sexual relations, until 31 December 2012, is made out on the balance of probabilities. 

The matters in s. 4AA (2) of the Family Law Act

1. S. 4AA (2) sets out a number of matters which the court can consider to assist it to determine whether a de facto relationship existed.

2. The first is the duration of the relationship. 

3. If relationship is loosely defined to mean the period during which the parties had an association of some kind or another it began in 1999 and ended when the respondent left the home property in early 2013, with a break of about two years in the 2010/2011 period because I accept the respondent’s assertion that there was a break then. That fits with the witness Mr D’s evidence and there were no telephone records to support the applicant’s version about that. I cannot be satisfied on the balance of probabilities that the relationship continued in that two year period but loosely defined we are looking at a period from 1999 to early 2013.

4. The next consideration is the nature and extent of common residence. 

5. The only time the parties had a common residence in the sense of sharing a bed in a bedroom was the period from April 2006 to August 2006.

6. The parties continued on occasions to live under one roof from either August 2006 until sometime in 2007 or August 2006 until sometime in 2009, because in either 2007 or 2009 the applicant shifted his bed from the sunroom to the top shed. I cannot determine exactly when that happened.

7. The applicant continued to live on the home property on and off after August 2006 and I say on an off because he was sometimes sleeping at his mother’s a night a week in 2008 and he slept at Ms R’s sometimes but on many occasions he slept on the home property and that continued from August 2006 until late 2009. 

8. This resumed in late 2011 when the applicant moved into the shed and continued until he left in early 2013.

9. The next thing I have to consider is whether a sexual relationship existed.

10. It was common ground that the parties had a sexual relationship between (omitted) 1999 and August 2006. 

11. There was a dispute about whether it continued after August 2006.  I consider it slightly more probable that it ceased in August 2006 as the respondent asserted but in any event I cannot be satisfied on the balance of probabilities that it continued after that time.

12. I next have to consider the degree of financial dependence or inter-dependence and any arrangements for financial support between the parties. 

13. The parties always kept their finances separate. They never had a joint bank account. The respondent took out a loan in 2004 which was secured on her property by a mortgage and she made the mortgage repayments. There was no evidence of any division of expenses between the parties. There was an assertion by the applicant that in 2012 he may have paid for some groceries but it was a bare assertion.

14. There was no evidence of a division of expenses. There was no evidence that the applicant ever financially supported the respondent.  The respondent lived on her Disability Support Pension.  The applicant lived on his income.  The applicant never shared his income with the respondent.

15. The respondent benefitted from the joint venture on the bush block in 2004 to an extent and she benefitted from the applicant’s assistance with developing the bush block for sale but at all times there was a commercial element to the parties’ transactions in respect of the joint venture and the sale of the block. 

16. The applicant on his case demanded that the respondent acknowledge that she owed him money for work done on the home property and the parties documented their joint venture in relation to the bush block in 2007/2008. The applicant was paid his share of the profit at the time. He kept detailed job cards and invoices for work on the shed in 2009. When the applicant wanted the (business omitted) he asked the respondent to sell it to him and she did so. 

17. There is no evidence of financial dependence or inter-dependence between the parties and no evidence of one party financially supporting the other.

18. I must consider the ownership, use and acquisition of property.

19. No joint property was purchased. There was a joint venture on the bush block in 2004 and concerning the development and sale of the bush block in 2007/08 but these were commercial dealings between the parties.

20. I must consider their degree of mutual commitment to a shared life. 

21. The applicant moved into the respondent’s home in 2006 not because of any plans he and the respondent were making to live together but because he had nowhere else to go. He had been evicted from the (business omitted) and his mother’s house was not suitable for him to move all his things to. Those were the circumstances under which he moved onto the home property.

22. The applicant and the respondent did things together socially in the 1999 to 2006 period and they had interaction with each other’s families but there were also many other things during that period which suggest something other than a commitment to a shared life. 

23. The applicant had his mail sent to either the post office or his mother’s home. There was no financial dependence or mutual financial support between the parties. The applicant expected to be paid for the work he did on the bush block and the home block. There was no evidence, not even any suggestion, that the applicant consulted the respondent before he rented the premises and storage unit in (omitted). That was his sole decision. He did it and he moved there.

24. There was some mutual support in the 1999 to 2006 period in terms of the parties taking each other to hospital or to medical appointments and having interaction with family. That indicates some degree of commitment to a shared life in a very minor way.  However that did not last and I accept the respondent’s evidence about what happened when she injured her foot.

1. There was also some evidence of the applicant pursuing a lady called Ms T at some time. The applicant’s evidence about that was impossible to understand when he was in the witness box. The police became involved apparently because of complaints by Ms T’s family and the best the applicant could say was that it was a case of mistaken identity. 

2. One thing which might indicate a degree of commitment to a shared life would be celebrations of anniversaries but while the applicant said in his affidavit that the parties celebrated their anniversary which they called (omitted) there was no evidence of that in his diaries. 

3. If you have a look at such at the applicant’s diaries as are available in terms of what happened on Christmas Day, on most occasions the applicant went off and celebrated Christmas Day with his family. I don’t know what the respondent did because those weren’t her diaries.

4. I have to consider whether the relationship is registered under a prescribed law but there is no relevant prescribed law.

5. I must consider the care and support of children but the parties had no children.

6. I must consider the reputation and public aspects of the relationship. 

7. What was starkly missing from this case was evidence of anyone who said that the parties were regarded by them as a couple in the district or were invited to events as a couple. There were general assertions without foundation to an extent about this in the applicant’s witness’s affidavits but they are not evidence on which I can place any weight. 

8. The highest the evidence goes is that between 1999 and 2006 the parties did on occasions meet each other’s family. Mr W, the applicant’s brother, described the respondent attending some family events, but they were all in the early years, 2000 and 2001, maybe 2004. Ms S, the applicant’s mother, went to the respondent’s property on two occasions but they were both prior to 2001. 

9. There were no documents which indicated that the parties were in a de facto relationship at any time. The applicant filed tax returns throughout this period. He never claimed that he was in a de facto relationship. He applied for Centrelink benefits in 2006. By implication from the fact that he used his mother’s address as his address he did not disclose a de facto relationship to Centrelink and the fact that he used that address indicates wanting to hide where he was living from Centrelink not disclose it to the world. 

10. The applicant’s counsel drew my attention to the police records from January 2013 in which the police stated that the parties had been in an 18 year de facto relationship. I cannot place any weight on that because I do not know who told the police that and if I was going to place any weight on it I would also have to place weight on the reference in the police records to the parties having had a complete break between late 2009 and late 2011. 

Conclusion

1. I must decide, taking the findings about the matters in s.4AA into account but also considering how the matter feels as a whole, whether I am satisfied on the balance of probabilities that these parties had so merged their lives that they were, for all practical purposes, living together on a genuine domestic basis, either for the period the applicant asserts or for some other period which would bring this matter within the jurisdiction of the court.

2. There were many phases to the association between the parties as I have mentioned.

3. From 1999 to 2006 they had a sexual relationship. They lived separately and they were not supporting each other financially and their dealings insofar as work was done on the respondent’s property had a commercial flavour. There is nothing to suggest a merger of lives in any of that.

4. From April to August 2006 they had a sexual relationship and they also lived in the same residence but this arose out of necessity and not as a natural progression of their relationship.

5. The respondent classified this as a de facto relationship. Whether I would agree with her, running the ruler of the s. 4AA matters over I and considering the feel of the matter I do not know but that was the respondent’s opinion.

6. There was no dispute that in August 2006 the respondent kept insisting that the applicant leave and that although he did not do so he moved out of her bedroom and built a bed in the sun room. There was no dispute that sometime between 2007 and 2009 he moved his bed to the top shed. 

7. The applicant kept his tools on the home block and he was there some of the time until late 2009. There were further commercial dealings between the parties, the sale of the (business omitted) and the development of the bush block. This was also the period during which the mysterious Ms T made an appearance although I do not know what that means. 

8. Then there was the period from late 2009 to late 2011 in which I am satisfied the parties did not have a relationship at all.

9. Then there was 2012 when the applicant returned to live in the shed. While he lived in the shed there was some mutual support in that the respondent sometimes took him to hospital and she cooked him meals on occasions but he took his washing to his mother’s in (omitted) and she did his washing.

10. If I consider what was said in Jonah & White it is impossible for me to be satisfied on the balance of probabilities that during any of those periods the parties were living in a de facto relationship. 

11. The evidence does not establish that the parties commenced living in a de facto relationship from the day they first had sex which was the applicant’s assertion. What it supports is that from that day they had a boyfriend/girlfriend or romantic relationship as the respondent contended, perhaps even on occasions a close personal relationship, but there is nothing to suggest that it was a de facto relationship. 

12. They maintained separate residences. They were financially independent and did not support each other financially. When the applicant did work for the respondent, he expected to be paid for it and he was paid for it, either immediately or later on. They had a commercial joint venture on the bush block.

13. The parties made no plans to move in together; that came about by chance. Their attempt to live together lasted only four months and then the applicant moved first out of the respondent’s bedroom and then ultimately into the top shed and began coming and going from the property. During that period there was still no financial inter-dependence and no sharing of household expenses. The applicant still expected to be paid for the work he did.  The development of the bush block was a commercial venture.

14. It is all indicative of the parties living separate lives, making their own plans and going their own way, having some inter-connection but not living in a committed de facto relationship.

15. I am satisfied that from late 2009 to September 2011 they had no contact.

16. There was no dispute that in late 2011 the applicant moved back to the home block but he did not move into the house, he moved into the shed. There was some connection between the parties in that the respondent cooked him an evening meal.  He used the shower and the toilet. He did some odd jobs but didn’t pay rent. He took his washing to his mother’s. Neither party financially supported the other.

17. I cannot be comfortably satisfied that at any point, except perhaps between April and August 2006, and then only because that is how the respondent characterised the relationship, that the parties were living in a de facto relationship.

18. In my view the court does not have the jurisdiction to hear a property settlement application and I intend to dismiss the application for a property settlement.

I certify that the preceding one hundred and fifty two (152) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date:  21 July 2015