Nasr & Dunlop
[2021] FamCA 62
•18 February 2021
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
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.
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, the Applicant sought leave pursuant to s 44(3) of the Family Law Act 1975 (Cth) (“the Act”) to institute the proceedings if the Court were to find there was a de facto relationship but that it ended before 28 September 2016.
The Respondent, by his Response, seeks a declaration, pursuant to s 90RD(1) of the Act that a de facto relationship never existed between the Applicant and the Respondent.
The trial proceeded before me via Microsoft Teams on 4 and 5 June 2020, with final submissions delivered on 7 July 2020 when Judgment was reserved.
It is appropriate to note that since August 2019 the Applicant says she was unable to afford legal representation and appeared on her own behalf (until the final hearing) at a number of directions hearings after the matter was transferred to the Family Court of Australia.
Although directions made 27 February 2020 required the Applicant to file “one consolidated Affidavit of evidence in chief” and also a case outline, she did not do so. This failure to comply meant the Applicant relied upon two earlier Affidavits filed (although they were similar and cross-examination on only one Affidavit took place), and prepared by two different solicitors. Thankfully in some respects, and no doubt of assistance to the Applicant, experienced Counsel Ms Bateman was retained on a direct brief to appear for the Applicant, although it was obvious that she needed the opportunity at times to get instructions from her client, who during the hearing was at a different location.
In contrast the Respondent maintained the same firm of experienced solicitors; complied with the Court’s directions and was represented at the hearing by Mr Schonell of Senior Counsel. The Respondent, his solicitor and retained Counsel were all “together”. I was present in Court sitting in Brisbane.
PRINCIPLES TO BE APPLIED
Relevantly, s 4AA(1)(2)(3) and (4) of the Act provides that:
(1)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.
Recently in Herford & Berke (No. 2) (2019) FLC 93-9192 the Full Court (Ainslie-Wallace, Ryan & Aldridge JJ), when noting that the touchstone or foundational fact establishing jurisdiction is whether the parties were “a couple living together on a genuine domestic basis” at the relevant time said (at [10]-[12]) that the question can be decided by reference to the matters to which s 4AA(2) of the Act refers, none of which are determinative of the question as was said in Sinclair& Whittaker (2013) FLC 93-551:
51.In coming to the view that a couple had a relationship as a couple living together on a genuine domestic basis the court is to have regard to all of the circumstances of their relationship. Those circumstances may include those specified in ss 4AA(2).
52.Sub-section 4AA(3) highlights that no particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the subject persons have a de facto relationship.
53.Sub-section 4AA(4) provides:
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.
54.Thus, whether or not a de facto relationship, as defined, exists will depend upon an assessment of all of the circumstances of the relationship, each to be given the weight the court thinks appropriate.
11.In Lynam v Director-General of Social Security (1983) 52 ALR 128 (“Lynam”) at 131 Fitzgerald J said apropos the presence or otherwise of financial support in considering the nature of a relationship between an unmarried couple:
Financial arrangements cannot be taken in isolation and considered of particular importance in determining the nature of relationship. Their materiality, like each of the other elements of the relationship, stems from the impact which they have as part of an overall situation. Each element of a relationship draws its colour and its significance from the other elements, some of which may point at one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to 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 the opposite sex meets the statutory test.
12.While Lynam clearly predates the amendments to the Act with which this case is concerned, it stands for the importance of considering all of the relevant facts and circumstances as a whole in determining the nature and characteristics of the relationship being examined.
In my view, the most effective way in which to analyse the evidence before me is to make findings as to the Applicant’s case and the Respondent’s case as presented and then return to the indicia prescribed for consideration under s 4AA(1)(2)(3) and (4) of the Act.
At paragraph 38 of the Respondent’s written submissions, the Respondent identified three distinct periods. Although this was the approach I adopted in Shee & Hale [2020] FamCA 84, such an approach was criticised on Appeal (although the Appeal was dismissed) and the current case differs from the earlier case, where there was an agreed de facto relationship for some three years at the commencement.
Whether parties were in a de facto relationship, being a relationship as a couple living together on a genuine domestic basis, is a question of fact not discretion and is a necessary jurisdictional finding to empower the Court to make property alteration orders under s 90SM. The Applicant bears the evidentiary onus to establish the jurisdictional fact and, as in this case, the discrete hearing is effectively a threshold issue.
Before summarising the evidence and the necessary findings on that evidence, I feel compelled in this case to make some findings as to credit.
CREDIT ISSUES
I will deal with the witnesses individually below, however where the two cases are so clearly in conflict, it is necessary to make a finding about the two principle witnesses – the Applicant and the Respondent.
All witnesses were observed through the electronic platform used for the trial, however their image was clear and their speech and intonations easily understood.
The Applicant’s evidence was founded on her assertion that for a period of 46 months she lived full-time in the Respondent’s two homes every night and in that home she performed a range of domestic chores including washing, cooking, cleaning and laundry on behalf of the Respondent and his three adult children. When in cross-examination, she was confronted with not only the evidence of the Respondent but the evidence of all the Respondent’s witnesses and she continued to repeat, with no hesitation, that each of the witnesses in the Respondent’s case were liars, implying some sought of “conspiracy” amongst the Respondent’s children; their partners; the cleaners and even the Respondent’s ex-wife.
The stark, almost determinative, fact is that the Applicant says she lived full-time seven nights a week at the Respondent’s Suburb C home from approximately June/July 2005 to March/April 2009, whereas the Respondent and his witnesses say she did not. There is no evidence that the Applicant suffers from any delusionary condition and I agree with Mr Schonell SC’s submission that she was not overwrought by the experience of being cross-examined or seemingly distressed or anxious generally. I agree with Senior Counsel’s submissions at paragraph 24 that:
24.She was consistently non-responsive, argumentative and combative. In a number of instances she simply refused to engage with the question and avoiding answering it altogether. On numerous occasions she gave what were clearly self-serving answers in an attempt to obfuscate and avoid engaging with the question. Most of her answers were gratuitously unresponsive designed to only serve her case.
Ms Bateman did her best to challenge the evidence offered by Affidavit by the Respondent and his numerous witnesses and towards the end of the trial – with what seemed to me to be a level of increasing frustration – Ms Bateman, without any foundation, contended that witness Mr B, had come to the Court to give fabricated evidence. Over a proper objection by Mr Schonell SC, Counsel withdrew the imputation. Mr B was the last witness cross-examined in the Respondent’s case.
I found the evidence of the Respondent infinitely more reliable and believable. He conceded the existence of a sexual relationship with the Applicant and that, as his employee between 16 March 2006 and 25 January 2008, the Applicant and he regularly engaged in social functions and business activities. Ms Bateman submitted that the Court should treat the Respondent’s case “with severe caution” and that the Respondent “sought to obliterate” the entirety of the Applicant’s case and attempt to minimise the nature of the relationship. There were examples, referred to below, where support at a family event (like a funeral) were characterised by the Respondent as a show of respect and by the Applicant as a demonstration of the strong and committed relationship that existed and at least in her view, would continue into the future.
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.
Simply stated, these versions offered to the Court by the Applicant about the nature of the relationship capable of being publicly observed by others is like “chalk and cheese” with the versions offered by the Respondent and his witnesses. Whilst the Court can accept sexual intimacy generally occurs discretely and unobserved by others, simple household duties do not, especially when the Respondent’s case is that his Suburb C home was a very busy venue for the girlfriends and friends of his sons and curiously, his ex-wife Ms T.
When making findings later within the context of the indicia prescribed for consideration by the Act, I deal with other aspects of the Applicant’s evidence relating to public social events, financial support and the role she says she played in supporting the Respondent’s business.
I find that the evidence of the Applicant as to why she described herself as “single” or informed third parties during the period of her claimed de facto relationship that she was not in a “de facto relationship”, as totalling unconvincing. In summary, the Applicant had to acknowledge, for example:
(a)she told Centrelink she was single;
(b)she never informed Medicare; her bank, transport department (in respect of her car registration and drivers licence) about living at Suburb C for purposes of mail and the like. Under cross-examination the Applicant said she “never told anyone she lived at Suburb C”;
(c)her application for car finance to U Company dated 27 November 2013 (to purchase a motor vehicle) does not disclose she was in a de facto relationship but told U Company she is single;
(d)when discussing with her general practitioner in June 2015 her need for a mental health plan, she told her doctor she was “living alone”;
As to the evidence of the Applicant’s other witnesses, I say that:
(a)Ms D said she moved into the L Street unit in April 2010 and thereafter from October 2010 to November 2011 lived in the Suburb W unit. Ms D said whilst the Respondent “visited” the properties she is unable to say with any certainty how often he visited. Accepting her memory was vague and it all occurred some years ago, the best she could offer was weekly between one to three days; maybe at times four days or no days during some weeks. She gave evidence of observing them together preparing food and leaving the home apparently for social occasions. I accept the submission of Counsel for the Respondent that her evidence of the frequency of attendances (in particular) is inconsistent with that of the Applicant – and completely at odds with the evidence of the Respondent;
(b)I agree with the summary of the evidence (after objections excluded parts of the evidence of the other witnesses) set out by Mr Schonell SC in his submissions at paragraph 16, which I incorporate in these Reasons:
16. The Applicant called evidence from the following witnesses:
(a)Mr I. The Applicant’s brother’s affidavit identified that he had seen the Applicant and Respondent together on two occasions. He said he had never met the Respondent;
(b)Mr K. The Applicant’s brother gave evidence of seeing the Applicant and the Respondent together on 5 occasions in 2008. Two of the occasions were at his home; once at a sports club; one at his mother’s funeral and the last occasion in or about October/November 2008;
(c)Mr J. This witness said she saw the Applicant and Respondent together at her families ‘significant events’. No time frame is provided;
(d)Mr H. He gave evidence of having seen the parties together only once at the Applicant’s mother’s funeral;
(e)Ms G. She deposed meeting the parties on one occasion in 2005/2006 and at some social events. She gave no evidence as to when these events occurred;
(f)Mr F. He gave evidence that he saw the Applicant and Respondent together on three occasions. No timeframes or dates are given for any of these occasions;
(g)Ms V. He gave evidence of having seen the Applicant and the Respondent together between 2013 and 2016 from “time to time”. There is no evidence as to how many occasions or the duration of the events;
(h)Mr E. He gave evidence that he had worked for AA Company for a period of 6 weeks in 2006. He saw the Applicant and the Respondent sitting on the veranda of the Respondent’s home. He does not say how often. He also gave evidence of seeing the Applicant’s car parked on a lawn outside the Respondent’s home. His evidence is limited to a 6-week period in 2006.
EVIDENCE IN THE RESPONDENT’S CASE
It requires restating that the Respondent is not required to negate the proposition advanced by the Application that a de facto relationship existed from at least June 2005 to September 2016.
However the Respondent did identify the evidence of witnesses he would rely upon to support and corroborate his own evidence, first placed before the Federal Circuit Court of Australia in November 2018. Despite the persistent attempts by Ms Bateman as Counsel for the Applicant to weaken the strength of the denials by the Respondent and his witnesses through her exploration under cross-examination, it has to be recorded she was frankly unsuccessful.
I found both the Respondent and his witnesses collectively and individually generally reliable and believable historians. It was a theme of the Applicant’s case, that as the Respondent’s supporting witnesses were mostly family, friends or persons employed by him or his companies, their evidence should be treated with caution and should not be preferred where it conflicts with the evidence of the Applicant.
I totally reject that submission on behalf of the Applicant.
In short, the evidence of the Respondent and his witnesses may be summarised as follows:
(a)The Respondent who was aged 75 years at the final hearing first met the Applicant in October 2004 and an intimate relationship commenced within weeks. In February 2005 they celebrated Valentine’s Day. He denied showing any public affection to the Applicant (like holding hands), but on five or six occasions they would be at company functions – but not as a couple. He emphatically denied that the Applicant’s evidence that:
(i)she stayed overnight ever at Suburb C;
(ii)she did his laundry or that of his sons;
(iii)she moved any of her clothes or personal items (e.g. perfume; toothbrush) into Suburb C;
(iv)she cooked any meals at Suburb C
(v)he spent time overnight at the Applicant’s residences at Suburb M and Suburb W or regularly ate at X Cafe;
(vi)she had a key to his home at Suburb C;
(vii)he was financially supporting her other than through her entitlements as an employee and paying for a meal when they at times socialised;
(viii)she ever introduced him to others as “my partner Mr Dunlop”.
(b)The Respondent did admit to:
(i)a sexual relationship for a period;
(ii)that, as a friend of the Applicant, attended the home of her brother Mr K;
(iii)attending the funeral of the Applicant’s mother;
(iv)shared a week’s holiday in Y City and went on a cruise together (which the Respondent paid for and the Applicant reimbursed him);
(v)having at least two other significant relationships during the period the Applicant says he was in a relationship with her. The family members give evidence they were aware of those relationships but did not know or observe a full-time de facto relationship with the Applicant;
(c)Ms Z had worked for the Respondent’s company AA Company for 32 years in an administrative role. At paragraph 11 Ms Z says that she recalls the Respondent moved from Suburb C to Suburb BB in early 2008 and that she attended the Respondent’s home “on countless occasions over the years… to celebrate birthdays, as a guest for barbeque lunches and evening dinners and weekend breakfasts, for work related purposes and also general social occasions. On not one occasion have I ever seen Ms Nasr at either of Mr Dunlop’s homes” Under cross-examination Ms Z indicated that between 2005 and 2016 she worked at head office in Suburb CC and only sometimes (but not often) attended building sites;
(d)Mr DD has known the Respondent since 2001 when he was working as a tradesman. He says he attended the home at Suburb C but was a more regular attendee at the Suburb BB home. He never saw the Applicant at the homes or at work functions. He says in 2010 he travelled with the Respondent to Country EE and introduced him to a lady named Ms Q and thereafter there were a number of occasions where he travelled to Country EE with the Respondent to visit the lady. At another point in time he observed a lady Ms P accompany the Respondent to some work functions;
(e)Mr R is the Respondent’s son who is 40 years of age and who works as a manager in one of the building companies. He lived in the Suburb C home with the Respondent and his brothers Mr FF and Mr S. Under cross-examination he said the Applicant never stayed overnight at Suburb C or the Suburb BB home and he continued to live in Suburb BB (after moving from the Suburb C home) until 2014. He can recall the Applicant working across the road from the office and occasionally coming to the family home to talk about “work related topics”. He said that the Applicant did not do any cooking or laundry for him. He denied the allegation by the Applicant at paragraph 103 of her Affidavit that he exposed himself to the Applicant in the bathroom. I note he was not cross-examined about his sworn denial;
(f)Mr S is the Respondent’s son who is 32 years of age and is now the general manger of AA Company. He says that he lived in the Suburb C and the Suburb BB family home until late 2016 and that the Applicant “never lived in my home with my father at Suburb C or at Suburb BB and did no cooking or laundry.” He said he had not seen the Applicant since 2008. He could not recall shopping with the Applicant for an ice-cream machine; having her wax his arms or attending a function with her;
(g)Ms T is the former wife of the Respondent (and the mother of the Respondent’s four children) who, despite a divorce in 2001, enjoys a close and amicable relationship with the Respondent. She continues to work in the building company. She lived in the Suburb BB home from 4 April 2011 until mid-2016 – usually staying Mondays to Fridays. Occasionally her partner, Mr GG would also stay with her in the Respondent’s home. She says that during the time she lived in the Respondent’s Suburb BB home with her sons she did not see the Applicant living there or staying overnight and that “Mr Dunlop would be home nearly every night”. At paragraph 8 of her Affidavit she denies the allegation she taught the Applicant to cook a special dish as the Applicant alleges;
(h)Mr HH commenced working for AA Company in July 2011 and is now a sales manager for the company. He says he attended after 2011 “various social events attended by staff members” and that at no work-related or social occasions had he seen the Respondent accompanied by the Applicant – including the funeral for the Respondent’s father in September 2012;
(i)The Respondent relied upon three Affidavits by three housekeepers, namely;
(i)Ms KK – a cleaner and housekeeper at the Suburb C property from 2004 to 2006 on Fridays;
(ii)Ms JJ – a cleaner, housekeeper and at times cook who attended the Suburb C home on two occasions a week between June 2006 and December 2007. She is the Respondent’s niece; and
(iii)Ms LL, Ms T’s sister, who was a house cleaner both for AA Company but also at the home of the Respondent “usually on Fridays between 9.30am and 6.00pm between early 2008 and October 2018.
The clear evidence from these three persons, not shaken by cross-examination (noting that Ms KK was not cross-examined) was that they attended to the cleaning of the house, tidying of the house and laundry with occasional meals cooked. All these witnesses deposed to not seeing the Applicant living at the homes; any evidence of her living there (e.g. clothes, toiletries etc.) or that someone else was regularly doing tasks like laundry. Ms LL confirmed the Applicant assisted her to apply for a loan and that the Applicant came once to her Suburb MM home in that regard. As the boys’ aunt, she was a regular attendee at family occasions but could only recall seeing the Applicant on two occasions when the Respondent was also present, but he did not demonstrate any affection to the Applicant;
(j)The wife of Mr S, Ms NN, began visiting the Suburb BB home in August 2013 on a regular basis including overnight. She had observed Mr S’s mother Ms T lived with the family at times. In her Affidavit sworn November 2018, at paragraph 5 she says “in the five years that I have known the Dunlop family I have never met a person named Ms Nasr nor have I ever heard any mention made of her”. Under cross-examination Ms T confirmed she never resided at the Suburb BB home but would stay over about once a week;
(k)Ms PP is a supervisor for AA Company (since 2011) and has known Mr R and his family since she was 17 years of age. From around 2009 she visited Mr R, his brothers and the family three to four times a week at the Suburb BB home. She said she had “never heard of or seen an Ms Nasr during the period that I have known and worked for the Dunlop family”. Often she would sleep over at the house in Mr S’s room on the couch, and as a former chef would often cook meals for the family. She was emphatic, and not moved by the cross-examination, that during her visits to the Suburb BB home the “only ladies I remember living at the family home were Ms T and Ms QQ”;
(l)Mr RR has known the four sons (Mr SS, Mr R, Mr FF and Mr S) and their parents since 2003, and says that thereafter attended the Dunlop home at Suburb C or Suburb BB “on a very large number of occasions”. As a younger person he would congregate with other friends at Suburb C, and often stay most week nights and weekends. He does not work for the Dunlop enterprises. He assisted in helping the family move from Suburb C to Suburb BB and remembers carrying a very large and heavy white leather lounge. He completely contradicted the Applicant’s evidence that she assisted with the move – saying clearly that since 2003 he had never been introduced to the Applicant or seen her at the home. As the Applicant was engaged in the trial by Microsoft Teams and was visible to all witnesses, as a result of a question from the Bench to say whether the Applicant on the screen was a person he had ever seen, his quick and clear response was no;
(m)Mr TT is a supervisor and works for AA Company, and is the godfather of Mr S’s son. Their close personal relationship began (although they went to high school together) in late 2007 and he says he attended the family home regularly and also a number of family events. He denied ever seeing the Applicant at the home or the family celebrations he attended. He was also directed to the screen when giving evidence and repeated that he had never seen the Applicant.
Although, as earlier identified, the Respondent carried no duty to disprove the assertion made by the Applicant, I found the evidence of all these witnesses believable and frank, and I have little hesitation in finding that I prefer their evidence in all relevant respects to that of the Applicant.
Based on the evidence presented in both cases, I now succinctly summarise my findings on that evidence within the matrix of the indicia prescribed by the Act earlier set out.
INDICIA TO BE CONSIDERED
Duration of the relationship
I accept the Respondent’s evidence of how the parties met and how their immediate sexual interaction commenced. I do not accept that the relationship continued for 11 years as the Applicant contends, although there were occasions of social interactions including holidays, meals and a cruise as “friends”.
Nature and extent of their common residence
On the evidence, I do not accept that the parties commenced in Suburb C a “common residence”. I find they never commenced a common residence in Suburb BB or in the units rented consistently by the Applicant in Suburb M and Suburb W. I find the Applicant never had a key to Suburb C; did not help the family move to Suburb BB and never at any time moved her personal clothing and belongings into any of the residences occupied by the Respondent. Even on the Applicant’s case no common residence occurred after March 2009.
Whether a sexual relationship existed
To move, as the Respondent stated and I accept, into a sexual relationship on the “first date”, suggests this mature aged couple were clearly attracted to each other, but I find it did not elevate into a deeper or any committed relationship. It is not possible to be certain about the frequency or duration of the sexual relationship on the evidence offered to the Court.
The degree of financial dependence or interdependence and any arrangements for financial support between them
The Respondent denied that he provided cash or “cash cheques” to the Applicant for her support as she asserts. The Applicant has failed to persuade me that the Respondent provided any funds, although I accept he was in a much stronger financial position as compared to the Applicant and may well have paid for meals and even an occasional grocery item. No documents to support her various contentions were produced. Although Ms Bateman for the Applicant contended it would be a “waste of time” to try and get copies of cheques the Applicant says she presented to her bank – no attempt to do so was even made. Naturally as an employee for a period she received funds, however I accept the submission of Mr Schonell SC for the Respondent that the parties did not “pool their income or savings” or that there was any evidence about future planning. The Respondent did not offer (nor is there evidence from the Applicant) that the Respondent gave the Applicant access to his financial resources through, for example, a secondary credit card or debit card. There is no evidence the Respondent contributed in any way to the expenses the Applicant was occurring for rates and utilities for properties rented by her when she said she was living full-time with the Respondent in Suburb C.
The ownership, use and acquisition of their property
Although the Applicant would seek to establish on her evidence alone that she was heavily involved with the Respondent’s business and its development, the evidence does not do so. It is likely, within a social context and when she was employed by the Respondent, she offered suggestions or advice. They never held a joint account or acquired any personal property of significance together. I find that as the parties did not have a common residence, no usage by the Applicant of the Respondent’s properties occurred.
The degree of mutual commitment to a shared life
It is clear on all the evidence that the Respondent maintained a close and supportive relationship with his sons, and curiously to some degree his ex-wife Ms T. The Respondent’s life seemed to be concentrated on work and family. Accepting as I do that the Applicant was employed by the Respondent for a period of time, that employment and some casual work engagement before the formal employment contract commenced, does not establish a “shared life”. More importantly, if the Applicant and Respondent truly had a commitment to a shared life – the number of weddings, significant birthday parties and events which involved the Dunlop family, gave plenty of opportunity for the serious committed relationship to be on show. The Applicant was not invited to the occasions and, although the Applicant says she did not attend for various reasons, her evidence in this respect was wholly unconvincing. She did not attend the funeral of the Respondent’s father – a person she would ask the Court to accept – was assisted by actions of the Applicant in making tomato sauce – a claim hotly contested and denied by the Respondent. The Respondent’s evidence that he attended the funeral of the Applicant’s mother (and was, as I recall the evidence, accompanied by his father and other family) because at the time the Applicant was a friend, I accept as true. I do not accept the evidence of the Applicant as to the cooking, cleaning and laundry duties she performed for the Respondent and his family (particularly his sons). If she had, that might have demonstrated some commitment to a “shared life’ – but it did not occur.
The care and support of children
The evidence of the Respondent and particularly the adult children and friends, which I accept, does not establish any real care or support of the children at all.
The reputation and the public aspects of the relationship
I accept that the parties were seen together in public but I find as “friends” and not as parties to a genuine domestic relationship.
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.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 19 February 2021
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