Nasr & Dunlop

Case [2021] FamCA 62

FAMILY COURT OF AUSTRALIA

Nasr & Dunlop [2021] FamCA 62

File number(s): SYC6215 of 2018
Judgment of: BAUMANN J
Date of judgment: 18 February 2021
Catchwords: FAMILY LAW – Where the Applicant seeks a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) that she and the Respondent were in a de facto relationship – Where the Respondent seeks a declaration that a de facto relationship never existed between the parties – Where the Court finds no de facto relationship ever existed between the parties – Application of the Applicant dismissed and declaration made as sought by the Respondent
Legislation: Family Law Act 1975 (Cth) ss 4AA, 90RD
Cases cited:

Herford & Berke (No. 2) (2019) FLC 93-9192

Shee & Hale [2020] FamCA 84

Sinclair& Whittaker (2013) FLC 93-551

Number of paragraphs: 51
Date of hearing: 4 & 5 June 2020 and 7 July 2020
Place: Brisbane
Counsel for the Applicant: Ms Bateman (direct brief)
Counsel for the Respondent: Mr Schonell
Solicitor for the Respondent: Karras Partners Lawyers

ORDERS

SYC6215 of 2018
BETWEEN:

MS NASR

Applicant
AND:

MR DUNLOP

Respondent

ORDER MADE BY:

BAUMANN J

DATE OF ORDER:

18 FEBRUARY 2021

THE COURT ORDERS:

1.That the Applicant’s Initiating Application filed 27 September 2018 (amended 7 August 2019) be dismissed.

2.That pursuant to s 90RD(1) of the Family Law Act 1975 (Cth) and for the purposes of these proceedings, the Court hereby declares that a de facto relationship never existed between the Applicant and the Respondent.

3.That should the Respondent press his application for costs, he shall file and serve by no later than 4.00pm on 12 March 2021 written submissions as to costs.

4.That should the Respondent file and serve submissions in accordance with Order 3 hereof, the Applicant shall file and serve any submissions as to costs in reply by no later than 4.00pm on 6 April 2021.

5.That unless otherwise ordered, any application for costs will be dealt with in chambers on the papers.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Nasr & Dunlop has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

BAUMANN J:

INTRODUCTION

  1. The Applicant Ms Nasr (“the Applicant”) commenced proceedings initially in the Federal Circuit Court of Australia on 27 September 2018 seeking a declaration that she was in a de facto relationship with Mr Dunlop (“the Respondent”) that concluded 28 September 2016.

  2. Seemingly, alert to the fact that the Application as filed immediately before the standard period of two years would expire, by amended Application filed 7 August 2019,…

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AGLC
Nasr & Dunlop [2021] FamCA 62
Case
[2021] FamCA 62
Decision Date

CaseChat Overview and Summary

In *Nasr & Dunlop*, heard by Baumann J, the Applicant sought a declaration under s 90RD of the *Family Law Act 1975* (Cth) that she and the Respondent were in a de facto relationship. Conversely, the Respondent sought a declaration that no such relationship had ever existed between them.

The central legal issue before the Court was to determine whether the parties had ever been in a de facto relationship as defined by the Act. This required the Court to assess the evidence presented by both the Applicant and the Respondent regarding the nature and duration of their association.

Baumann J found that the Applicant's evidence was often unclear and lacked corroboration. Despite the Applicant's assertions of cohabitation and domestic contributions, the Court noted significant inconsistencies, including the Applicant continuing to pay rent on her own unit while claiming to live with the Respondent, and her representations to third parties, such as her doctor and Centrelink, that she was single. The Court rejected the Applicant's contention that the Respondent's witnesses, who were largely family or employees, had colluded to provide false evidence. Ultimately, the Court was not satisfied that a genuine domestic relationship, as required by the Act, had ever commenced or been maintained.

Consequently, the Applicant's application for a declaration of a de facto relationship was dismissed. The Court made the declaration sought by the Respondent, finding that a de facto relationship never existed between the parties for the purposes of the proceedings. Directions were also set out regarding any potential application for costs by the Respondent.

Orders

Orders of the court

SYC6215 of 2018

BETWEEN:

MS NASR

Applicant

AND:

MR DUNLOP

Respondent

ORDER MADE BY:

BAUMANN J

DATE OF ORDER:

18 FEBRUARY 2021

THE COURT ORDERS:

1. That the Applicant’s Initiating Application filed 27 September 2018 (amended 7 August 2019) be dismissed.

2. That pursuant to s 90RD(1) of the Family Law Act 1975 (Cth) and for the purposes of these proceedings, the Court hereby declares that a de facto relationship never existed between the Applicant and the Respondent.

3. That should the Respondent press his application for costs, he shall file and serve by no later than 4.00pm on 12 March 2021 written submissions as to costs.

4. That should the Respondent file and serve submissions in accordance with Order 3 hereof, the Applicant shall file and serve any submissions as to costs in reply by no later than 4.00pm on 6 April 2021.

5. That unless otherwise ordered, any application for costs will be dealt with in chambers on the papers.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

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Evidence

Evidence Before The Court

Hereafter, statements of fact should be construed as findings of fact.EVIDENCE IN THE APPLICANT’S CASE Apart from the Applicant’s Affidavit and Financial Statement filed 7 August 2019, the Applicant relied upon the Affidavits of:(a)Ms D;(b)Mr E;(c)Mr F;(d)Ms G;(e)Mr H(f)Mr K. After rulings made on objections to evidence, only the Applicant and Ms D were cross-examined. The evidence of the Applicant and some findings which arise of relevance include the following:(a)Although the Applicant’s evidence was at times less than clear, ultimately she continued to assert that she lived at the Suburb C property owned by the Respondent “7 nights a week” commencing around June/July 2005. The Suburb C home was across the road from a display home that the Respondent’s building company had constructed;(b)Although the Applicant says the relationship began in March 2005 when she began to work (unpaid) as a sales hostess, her formal employment under a contract of employment as a sales consultant commenced in March 2006 and continued to 25 January 2008 (see Annexure “N”). She received remuneration for this position from the Respondent’s company;(c)Sometime in 2008/2009 the Applicant returned to a home unit in L Street, Suburb M to live. During the period she claims to have lived in Suburb C with the Respondent she continued to pay rent on the Suburb M unit. She says the Respondent spent six to seven nights every week with her when she returned to L Street. When she lived in an apartment at N Street for two years after 2009, the Respondent she says slept four to five nights a week with her;(d)Although I find the Applicant’s evidence of living together after she moved back to Suburb M in around 2012 very hazy, she maintained that during this period to 26 September 2016 the Respondent did sleep at her Suburb M apartment up to four nights a week. The relationship ended when she saw the Respondent’s photograph on “Facebook” with another lady. The Applicant says she was unaware of the Respondent’s relationship with Ms P or then Ms Q;(e)The Applicant used descriptors such as “always” or “all” when talking about the meals she prepared; the laundry and ironing she performed and the cleaning she undertook when living full-time with the Respondent in Suburb C;(f)I accept her evidence of a sexual relationship between the parties – however the length of such intimacy; the frequency of such sexual activities and even where it is said to have occurred, on the Applicant’s case, is vague. If I accepted the Applicant’s case that she lived every night at Suburb C (and for a short time thereafter at the Respondent’s Suburb BB home), then sexual activity must have occurred at those places;(g)As a result, on the Applicant’s case, where she conceded that when she was living at the home the Respondent, his sons Mr R and Mr S were living there “for the entire time” and she cooked, cleaned and attended to laundry for them, this creates a direct conflict with the evidence of the Respondent and all of his witnesses, dealt with below.

Decision

Reasons for decision

There is a complete absence of any documents, cards, and expressions of love by either party to the other. Furthermore, the Applicant chose to consistently assert to her doctor, to Centrelink and in some other documents that she was single. Although Ms Bateman submitted that the Applicant is not a “sophisticated” woman, I do not accept she “ticked the single box” because she was not married. Rather I find she did so because that was the actual position and she knew it to be so.CONCLUSION These cases turn on the facts as established. Considering that the Applicant knew at least by November 2018 the case in reply that the Respondent was running, there was plenty of time for the Applicant to gather evidence to diminish or rebut that evidence. She attempted to do so with the Affidavits filed in early 2019, but as I have explained above, her evidence is unconvincing and rarely corroborated by her witnesses in a convincing manner. Faced with the reality of her weak case, her constant response is that the Respondent and his witnesses were all liars and further, that because of their connection nearly all have with the Respondent as his family or because they work for him, all these witnesses were prepared to swear false Affidavits to support the Respondent. I totally reject the premise adopted by the Applicant. I am not satisfied that the Applicant and Respondent ever commenced or maintained a genuine domestic relationship as prescribed by the Act as a foundation to make property adjustment orders. The Application for a declaration must accordingly be dismissed. I make an order that the Application of the Applicant is dismissed. The Respondent seeks a declaration pursuant to s 90RD(1) of the Act that a de facto relationship never existed, and although I am not certain why such a declaration is necessary, rather than just dismiss the Applicant’s Application, I will make the declaration sought in the Respondent’s case outline. If the Respondent seeks to pursue an order for costs, then the directions set out in the Orders at the commencement of these Reasons apply, and the application for costs will be dealt with in chambers on the papers, unless otherwise ordered.

Ratio Decidendi

Legal Principle Established

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