Nghiem & Truong & Ors

[2012] FamCA 210

FAMILY COURT OF AUSTRALIA

NGHIEM & TRUONG AND ORS [2012] FamCA 210

FAMILY LAW - DE FACTO RELATIONSHIP - Application for declaration under s 90RD -parties have very different evidence as to the date of cessation of the relationship - Finding that it ended in July 2010.

Family Law Act 1975 (Cth)

APPLICANT: Mr S Nghiem

RESPONDENT: Ms Truong

2^ND RESPONDENT: Ms Luong

3^RD RESPONDENT: Mr D Nghiem

FILE NUMBER: MLC 4291 of 2011

DATE DELIVERED: 5 April 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 6, 7, 8, 9 March 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Serra

SOLICITOR FOR THE APPLICANT: Moores Legal

COUNSEL FOR THE RESPONDENT: Mr Davis

SOLICITOR FOR THE RESPONDENT: Berger Kordos Lawyers

SOLICITOR FOR THE 2^ND RESPONDENT: No appearance

THE 3^RD RESPONDENT: No appearance

Orders

1. That pursuant to s 90RD of the Family Law Act 1975 (Cth), the Court declares that a de facto relationship existed between the applicant and the respondent and that it was extant on 1 March 2009, concluding in July 2010.

2. That paragraph 1 of the amended application filed 20 December 2011 and paragraph 2 of the response filed 14 June 2011 are otherwise dismissed save as to issues of costs.

3. That all extant applications otherwise be adjourned for a first day of hearing before the Honourable Justice Macmillan at 2.15pm on 26 April 2012.

4. That should any party seek costs arising out of these orders, such application be made by written submission and filed and served by no later than 7 May 2012 with such submission being endorsed with the fact that it has been so served on the other party and any recipient of such submission have until 21 May 2012 to file and serve any response and such response be endorsed with the fact that it has been so served on the other party and upon receipt of any such application for costs, it or they be determined in chambers.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4291  of 2011

Mr S Nghiem

Applicant

And

Ms Truong

Respondent

And

Ms Luong

2^nd Respondent

And

Mr D Nghiem

3^rd Respondent

REASONS FOR JUDGMENT

The issue

1. Mr S Nghiem and Ms Truong lived together as a couple in a de facto relationship.  The issue in this case is when that de facto relationship came to an end.  I find that it was in 2010. 

2. For anonymity purposes, I shall refer to the parties as Mr S Nghiem (“the husband”) and Ms Truong (“the wife”) because the names they usually use would be identifiable in a relatively small community. 

3. This is a property dispute between the husband and the wife arising out of their relationship.  Jurisdiction was always disputed by the wife because she maintained the relationship came to an end in 2003.  The husband said it was July 2010. 

The jurisdiction

1. For jurisdictional purposes, the parties’ de facto relationship had to come to an end after 1 March 2009 for the Court to hear the substantive property dispute. The applications of both parties sought declarations under s 90RD of the Family Law Act 1975 (Cth) (“the Act”) defining when the de facto relationship came to an end.

The wife’s position

1. In cross-examination of the wife, she maintained that she had never been in a de facto relationship but her formal application had sought the declaration to which I have just referred.  She also wanted a declaration but one to say that the de facto relationship came to an end in 2003.  In addition, her case was, and always had been, conducted on the basis that there had been such a relationship. 

Credit

1. The unusual feature of this case was that its determination revolved almost entirely around the credit of the parties and their witnesses.  Each side agreed that their case succeeded or failed on a finding of who was telling the truth.

2. There was no room for uncertainty about what had happened nor any argument about a subjective judgment by the people looking at the same set of facts.  As it was aptly put by counsel for the husband, and not disputed by counsel for the wife, one of the parties was lying.

3. The Vietnamese language was the natural language of both parties and almost all of their witnesses.  Interpreters were used by both sides.  The language barrier created some difficulties with the interpretation of a few concepts but in respect of the critical facts, there was no room for misunderstanding.

Onus of proof

1. The husband made the assertion that the Court had jurisdiction and as such, the onus of proving that lay with him.

2. Each of the findings I make in these reasons is a determination on the balance of probabilities.  That is, when the evidence is weighed up, can I be satisfied about what probably happened?

The material relied upon

1. The material relied upon by each party is referred to in the annexure to these reasons. 

2. It will be evident from the headings to these reasons that there was a second and third respondent.  Neither of those parties participated nor sought orders.  I do not propose to remove them at this stage because they may have some particular issue to canvas in the substantive proceedings.

The legislation

1. Even though the parties agreed that I could determine the matter on the basis of which side was believed, it is still important for the applicant to satisfy the jurisdictional requirements.  That is, not that the relationship ended after 1 March 2009 but that the parties’ de facto relationship ended after that date.  Thus, the Court has to be satisfied that there was an extant de facto relationship as at 1 March 2009.

2. Relevantly, s 4AA of the Act provides that a person is in a de facto relationship if (inter alia) having regard to all of the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.  The circumstances just referred to 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. It is important to note that to establish the existence of a de facto relationship, s 4AA(3) does not regard it as necessary to find the existence of any particular circumstance. Although that might be read as meaning any particular circumstance in the statutory list to which I have just referred, my view is that it is much wider.

4. Section 4AA(1) has been interpreted to mean that a party must prove that at some time the parties were living together as a couple on a genuine domestic basis even though they may not always have been in a serene relationship and particularly not so on 1 March 2009. (See Moby v Shulter (2010) FLC 93-447).

5. In interpreting legislation the provisions of the Acts Interpretation Act 1901 (Cth) s 15AB may be applied.

6. Section 15AB(2)(f) lists second reading speeches as examples of extrinsic material that can be taken into account. The High Court in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 141 ALR 618 stated that in approaching statutory interpretation, context should first be considered, and, that context is used widely to include:

   the existing state of the law and the mischief which…one may discern the statute was intended to remedy. (Brennan CJ, Dawson, Toohey and Gummow at 634).

7. The second reading speech for the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008(Cth) delivered by the then Commonwealth Attorney-General, Robert McClelland, outlines the purposes for which the amendments were created. These include providing greater protection for separated de facto couples than had previously existed; bringing all family law issues relating to relationship breakdown under the federal regime; providing a consistent and uniform approach across the Commonwealth as opposed to the current regime of differing state laws; and providing equality of access to the family law jurisdiction.

8. Demanding  a strict adherence to proving a de facto relationship existed specifically on 1 March 2009, if s 4AA(1)(c ) was interpreted narrowly, would contradict the objectives of the amendments which were designed to widen access to the family law jurisdiction for the purposes of equality, simplicity and ease.

9. Where an ambiguity exists, the interpretation of legislation should not be one that results in an absurdity or is unreasonable. It would be absurd to simply look at the activity in the relationship on one day, that being 1 March 2009.

10. Looking at surrounding legislative provisions is also helpful in determining meaning. Project Blue Skyv Australian Broadcasting Authority (1998) 194 CLR 355 outlined the principle as:

    the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.  (McHugh, Gummow, Kirby and Hayne JJ at 69).

11. The s 4AA(2) provision which follows s 4AA(1) provides indicia to determine if a de facto relationship exists. It would seem absurd if all or even some of these were required to be evidenced to be in existence on that one date, particularly when s 4AA(3) states that no particular finding is regarded as necessary to decide whether a de facto relationship existed.

12. Further, under s 90RD(2)(a), the legislation refers to either “the period, or periods, of the de facto relationship”. This implies that the legislation allows for intermittent phases of living together, where there may be periods when the relationship is suspended rather than one continuous period. This could encompass 1 March 2009 if the relationship was found to have ended, as opposed to being suspended, after that time.

13. A narrow interpretation of “have” would appear to be an unreasonable requirement, given both the purpose of the amendments and the fluid approach taken by surrounding and other relevant provisions in the Act.

14. The correct approach is to look at what occurred before 1 March 2009 and see whether all vestiges had disappeared by 1 March.  To ascertain when something ends, one must see at least what existed and even when it started.  That is not necessary here.

15. The declaratory power in s 90RD(2) includes a determination of when the de facto relationship ended.  “Ended” for jurisdictional purposes must mean terminated.   The enabling legislation says that it applies to de facto relationships “breaking down” after the commencement date.  There is a distinction between something breaking down and something ending.  Something which is broken may be fixed but something which has come to the end of its life, has a terminal and permanent status.

16. The subtle distinction is relevant when a court is examining a case seeking a s 90RD declaration.

Background

1. The background here is essential to understanding what happened in the lives of these parties.  Statements about facts are to be treated as findings of fact.

2. The husband and the wife commenced a relationship in 1995 in Vietnam at a time when the husband was still married to a woman in Australia.  He continued to live with his wife although he said their relationship came to an end in 1995 and they lived under the one roof until 1998.  To his earlier relationship, the husband had three children.  He was a regular visitor to Vietnam where he also had a residence that he owned.

3. The exact nature of the relationship between the wife and the husband in 1995 is unclear and was certainly disputed.  Whilst the duration may affect the property division in this case, it does not affect my focus for the determination I have to make.

4. In 1997, the wife became pregnant.  By the birth of their child, the wife and the husband were living together in Australia.  That was 1998.

5. In 1999, the wife and the husband started a corporate entity which was to conduct a retail business.  The husband had apparently already owned the business and sold it to the new corporate entity.  The wife was never an office holder or shareholder in the new entity.  He explained that on the basis of his financial problems and in particular, his entering into bankruptcy. His answers were unsatisfactory about all of that because I have no real understanding of how his finances stood in 1999.  He made reference to involvement in a hospitality industry business and another company with unrelated parties and of borrowing significant sums of money which he had not paid back.  It does not take much imagination to conclude that the setting up of the new corporate entity with the wife entirely in control and appearing as the owner, was to avoid a bankruptcy problem for the husband because a year later, that is exactly what occurred.  The bankruptcy of the husband in this case is relevant because the wife maintains that “separation” occurred in 2003 and she points to a number of indicia to show she had no connection with the husband.  For his part, the husband points to the bankruptcy to show why he had to legally distance himself from what he described as joint assets.

6. In 2000, apparently on a creditors’ petition, the husband was made bankrupt.  He claimed his debt level was between $600,000 and $700,000 but other much greater amounts were put to him which he denied. It is noteworthy in this case that his bankruptcy was extended twice.  It was asserted by the wife that the bankruptcy was extended because of  the husband’s hidden assets.  The husband’s explanation was that that was not the case and that the extensions occurred because his solicitor did not let the trustee know his address.  That was implausible.

7. It was put to the husband that he told the trustee in bankruptcy during court proceedings that he was not living with the wife.  He denied that proposition.  He confirmed that the wife gave evidence.  I am unable to make any finding about what evidence was given in that proceeding but Riethmuller FM certainly referred to the wife as living in a de facto relationship. That was in 2005 and importantly, well after the de facto relationship had come to an end on the wife’s version.

8. A critical issue here relates to the question of the purchase of a house in 2004 and the continuation of the running of the retail business.  In both cases, it was undisputed that the wife was the legal owner.

9. The explanation for the absence of the husband’s legal ownership was as I have indicated, the husband’s bankruptcy.  There is no other plausible explanation than he was hiding his financial position.  He conceded that what he had told the trustee about the ownership of the house was untrue.  Whether he lied to the Federal Magistrate or not is a matter about which I could not make a finding because I was not provided with any transcript. 

10. The wife’s argument in this case was that the husband had not lived at the relevant house.  That proposition was put to the husband together with a variety of examples showing that he used other addresses during the relevant period of time.  His explanation was that he was busy and had not got around to making the relevant changes.  There were too many coincidences such as letters to his lawyers, tax documents and court correspondence for that answer to be true but at the same time, with the bankruptcy status, it would seem that it suited the husband to have that separate address.

11. In the same period, when the wife said that the relationship had ended, the husband was privy to details of business activities which must be construed as inconsistent with him simply being an employee.  He knew the annual turnover and the weekly net profit.  He was able to describe how creditors were held at bay by using the fullest credit facility available so that large sums of money could be sent to Vietnam to relatives.  Whilst the movement of money in this case was breathtaking, the movements support the contention of the husband that this was a family arrangement.  Just which families, remains unclear but in any event, the money could only have come from the one source and the husband knew all about them.  That would seem very odd if he was not only a former de facto partner but also an employee.  This evidence supports a conclusion asserted by the husband that the de facto relationship with the wife did not end in 2003.

12. Between 1998 and 2003, there was no dispute that the parties lived together.  This was prior to the purchase of the relevant house.  There was a significant dispute about the nature of the relationship.  The wife asserted that the husband was violent to her and their child.  There is evidence to corroborate that violence.  The husband’s explanation about his description in affidavit form about an argument not being family violence was implausible.  His failure to recall an incident involving his child being struck and the consequential attendances upon a doctor did little to convince me that his credit was worth much.  So significant would be such an event that it would be unlikely that any parent would forget it.  That violence however can only go to the husband’s truthfulness.  It does confirm that at least to 2003, the parties were in a de facto relationship. 

13. In 2003, the child of their relationship was sent to Vietnam.  The parties were at odds as to why that happened.  The wife said that she had someone to care for the child here in Australia but did not want the child to continue in the violent environment to which I have just referred.  The husband said that it was because the parties were very busy at that time.  I am satisfied that the parties were working very long hours because their business required attendances at wholesale outlets.  That evidence was corroborated by other witnesses.  There was no evidence about discussions that had taken place between the parties as parents.  Having regard to the evidence of the next door neighbour, it is inconceivable that the parties would have sent their child to Vietnam predominantly unless they were both very busy in the business.  Other witnesses gave evidence about events such as the parties working together in the business and appearing to be in a marriage-like relationship. Some attended at the house for a housewarming party at which both the husband and the wife were present and the witnesses maintained that they were shown around.  The wife denied that the housewarming party ever occurred.

14. There was also evidence of at least one witness seeing men’s shoes at the house during this period of time.  Again, the wife denied that that was true.  Other witnesses gave evidence of attending the house to do tasks associated with electrical equipment.  That too was denied by the wife as being untrue.  If those witnesses are to be believed, the denial by the wife must be false. 

15. It was the wife’s evidence that after she acquired the house in her name, the husband never once stayed there overnight saying that such activity concluded with the ending of their relationship in 2003.  That evidence however is inconsistent with that of Ms O who had no reason to be untruthful and who had all the appearance of a credible witness. 

16. I turn to the evidence of the witnesses other than the husband and the wife. 

Witness mr D nghiem

1. The husband’s son Mr D Nghiem swore an affidavit and attended for cross-examination.  He had initially been a respondent but did not file any material and did not pursue any orders.

1. He saw very little of his father until recently but had a good relationship with the wife until this dispute started.  Beyond 2003, his involvement with the wife became more extensive and she assisted him financially.  He had just finished high school and was not working.  He worked in the retail business but said that he had no knowledge of any tensions in the relationship between his father and the wife.

2. Mr D Nghiem recalled a housewarming party at which 30 or 40 people attended and he went with his sister.  He said that he was given a tour of the new home by both the husband and the wife and that this was the first time that he had been there.  Importantly, he said it was the wife who invited him.  That is not surprising having regard to the nature of his relationship with the wife at that time. 

3. Mr D Nghiem also said that he slept at the house but after 2005, he was only there occasionally every two to three months.  He knew of the previous residence at which both the husband and the wife lived but whilst confirming he was vague on dates, he recalled that after the new house was purchased, he never saw the earlier property again.  He said that when he needed to speak to his father, he found him at the house. 

4. Although it was not at all clear on the evidence, it was to Mr D Nghiem that some shares in a property development were later transferred.  The significance of those shares is irrelevant to my determination.

5. Cross-examination of Mr D Nghiem by counsel for the wife was very appropriately undertaken and all points that could have been put were in fact so put.  Nothing about the evidence of Mr D Nghiem convinced me that he was untruthful.  I accept his evidence.  Importantly, that means that there was a housewarming party and that both the husband and the wife were together after 2003.

6. There was a second unusual incident relating to the elderly mother of the husband who came from Vietnam and stayed at the house and a party was organised.  There was no dispute that that party occurred.  The wife’s evidence was that the elderly visitor was her child’s grandmother and that was her explanation as to why the husband or his family would have had anything to do with the house. However, when the party took place, the wife was unwell and stayed in her bedroom.  Even if that were so, there was little dispute that the husband attended the party giving all of the appearance of living there. 

Witness Ms P

1. Another witness was Ms P who is a student.  She said that after signing her affidavit, she told the husband that she did not want to give evidence. Despite that statement, the husband still filed and relied upon her affidavit and she was ultimately required for cross-examination.

2. It transpired that she took a day off work to complete the affidavit exercise and was paid by the husband. 

3. Her evidence was that she attended the house last in June 2010 and up until that time, the parties appeared to be a “normal couple”.

4. The evidence of Ms P was also controversial because she said she was an employee of the company controlled by the wife.  It was put to her that she was there as a work experience person who helped out and there were no wage records or tax returns filed.  Despite that, she said she gave the wife her tax number.  No records were tendered by the wife to show that the witness was not an employee. Ms P observed the wife bringing meals for the husband and asked her to assist in getting the meal ready. The relevance of Ms P’s evidence was about what she saw when she visited the home and her observations of the parties as a couple in their work environment.  Having regard to her reticence which I found unsettling, I would give very little weight to anything she said.

Witness Ms T

1. Ms T is a woman with whom the husband had a sexual affair.  She was vigorously cross-examined about the fact that she had exaggerated her role in the retail business and about her relationship with the husband to whom she had a child, coming to an end.  Despite an assertion that she had a motivation for supporting the husband because she would benefit financially by way of support for their child if the husband received some money, Ms T constantly distanced herself from the husband. I am satisfied there is no relationship there now. Ms T lives with another person and receives no regular benefit from the husband. On the evidence, I am satisfied that he has little to do with the child of that relationship. That was not the only financial motive imputed to Ms T.

2. Ms T was cross-examined at length about the fact that through her family, money had been borrowed and lent to the husband to enable him to finish a development of property of some significance which is now controlled by the wife. Consistent with several large money transactions in this case, Ms T obtained funds from her family and they have not been repaid. It was put to Ms T that if the husband received no entitlement to a property settlement, she had little prospect of getting her money back for her family members.  She maintained that the husband had told her that he would get work and repay her although the sum involved was about $100,000 and as such, her prospects would seem slim.  She seemed resigned to the fact that that was a real probability.  I am satisfied that that was not her motivation for being involved in the proceedings at all even though she conceded that the husband had told her that he hoped that he would get a settlement and if he did he would pay her. 

3. Importantly, this witness’ evidence was about the reaction of the wife to her affair. I return to that below in these reasons.

4. Notwithstanding the accusation that her motivation was improper, the evidence of Ms T was consistent with other witnesses about the nature of the relationship between the husband and the wife and I have no reason to doubt that she was truthful on that issue.

Witness mr K

1. Mr K was a witness for the husband.  He is not only a friend of the husband but also a business acquaintance.  He and his wife had significant sums of money invested in a building development project with the husband and when the husband was excluded from that project by its commercial lenders and the wife, Mr K became very concerned.  He took steps to dispose of his shareholding and recover some of his money asserting that the wife had cooperated in respect of that payment.  All of this cooperation was denied by the wife.  Mr K’s explanation was that initially he became aware of the separation of the husband and the wife and consequently became concerned about losing his money because of things that the wife was doing. Whilst I have a healthy cynicism about that because of Mr K’s apparent culturally-based views about women, it is important to note that this dramatic disposal of his interest was said to have occurred consequent upon the separation of the husband and the wife. That has a ring of reality about it when it is put into the context of the other witnesses and its timing.

2. In the commercial development, Mr K confirmed that his dealings were with the husband.  He did not deal with women in that situation.  He acknowledged knowing that the husband was bankrupt and despite that, treated him as a partner and trusted him as a family friend.  Like other people in this case, Mr K was involved in the movement of significant amounts of money.  As much as I have considerable disquiet about the conduct of Mr K concerning his attempts to get out of the development and to get his investment back, his evidence is consistent with others about the nature of the relationship between the husband and the wife after 2003. I would not reject his evidence about the discrete issue of the relationship despite my disquiet about his conduct.

Witness ms N

1. Ms N is the wife of Mr K and she also gave evidence and was subjected to cross-examination.  Her evidence was that she was familiar with the layout of the house and it was her perception that the husband lived there because she had seen his clothes hanging in a room and seen his shoes there.  She went to the house after 2008 on six or seven occasions.  Sometimes there were functions and other times only the wife was present.

2. Ms N not only supported the evidence of her husband about the property development but went further and said that she too had borrowed money to put into it. She referred to $390,000 from various sources which was used to assist in the development.  It was put to her that her motivation for supporting the husband was to try and ensure that she got her money back.  Her mantra-like statement was that whoever ultimately got control of the project “had to pay” and that ultimately the legal process would take its course.  That simple statement had a ring of reality about it. Her position was that she would take legal action against whoever had the control of the development project. On her version, that would not be affected by whether or not there was a property dispute between the husband and the wife. The transactions around 2010 and thereafter are so vague in this proceeding that I could have no understanding whether Ms N had a claim based in law. 

3. The wife’s case was that Ms N was motivated to lie to ensure that the husband obtained a property settlement so that she could be repaid. For the reasons just outlined, her conduct would not entitle me to exclude her evidence about what went on in the house because she like others, was consistent about those activities.

Witness mr L

1. Mr L had been a tenant of a retail business complex up until he left the business some time around 2010.  He began a different business earlier than that and his wife continued his activities in the retail business.  He gave evidence that he was at the retail business complex in the early hours of the morning and that was during the period of around 2007 onwards.  What he witnessed however was the activities of the husband.  Much of what he said in his affidavit did little to advance the position of either party. 

2. The only evidence of significance by Mr L was that he went to the house as an infrequent visitor on a number of occasions and assisted in the installation and/or repair of electrical equipment.  Mr L had no motive to lie.  He had no doubt that the husband was there during that period of time which is completely inconsistent with the evidence of the wife.  I accept his evidence.

Witness Ms Z

1. Ms Z is the next door neighbour to the house that was the subject of the controversy.  She said she had been approached in June 2011 by the husband to complete a statutory declaration.  Whatever may have been the intention of the husband, the evidence of Ms Z was critical in this case.  She said she knew the parties moved to the house in 2004 and consistently referred to them as a couple with a daughter.  She met them several times and she thought they were good people.  That meeting took place at the dividing fence and she otherwise noted that they left early and returned late.  She had no doubt that the husband was at the house but she was unable to say how often and whether he stayed.  She talked of exchanging Christmas presents. Her recollection was that the husband was at the house and although vague as to dates, it seems consistent with the version of the husband as to when the de facto relationship ended.

2. Even if it was suggested that Ms Z may have witnessed the husband coming and going rather than staying at the house, her evidence about his movement was inconsistent with that of the wife.  Ms Z had no reason to lie.  She was complimentary of all parties and I have no reason to doubt she was telling the truth.

Witness MS V

1. Ms V is an acquaintance of the wife.  Her evidence added little to the case of the wife.  For example, she said:

   I am aware through my discussions and interactions with [the wife] that [the wife] and [the husband] lived together in Australia from 1998 until 2003 and that they have a daughter together…I am aware that [the daughter] came to live with [the wife] and [the husband] from early 2002 until late 2003.

2. The witness went on to say that the wife told her of her problems with the husband.  The witness did not elaborate what those problems were other than to refer to an incident in about 2003 which corroborated the wife’s evidence about family violence.

3. Much of the affidavit of Ms V was otherwise not admissible.  She did say:

   I am confident that [the husband] has not and does not live at [Town B] and that [the wife] and [the husband] remain separated.

   The probative value of that statement ought to be self-evident.

4. In cross-examination, the witness confirmed that she had not attended the housewarming party or to any other parties there. 

5. On any of the criteria set out in s 4AA to which I have already referred, this evidence was of no probative value and does not assist me.

Witness MS C

1. Ms C is a friend of the wife.  An affidavit was filed on her behalf.  Her evidence was directed to the unhappiness of the wife in or about 2003. 

2. Two delightful but entirely inappropriate sentences appeared in her affidavit of evidence.  They read:

   I noticed during these visits that [the wife] and [the husband] did not show mutual commitment to a shared life.  I saw that [the husband] and [the wife] did not show affection towards each other as ordinary couples would.

3. When Ms C visited the home in 2007, the husband was not there.  Having regard to the evidence of what other witnesses saw around that time in the home, I am not sure what inference could be drawn from her statement.

4. The evidence of Ms C did not conflict with that of the witnesses for the husband.  Indeed, it added little to the determination.

The onus of proof

1. There can be little doubt therefore that the consistency of the witnesses attending the house and particularly the housewarming party confirms that there was a relationship inconsistent with that described by the wife. Despite that, the husband still bears the onus of proving that the de facto relationship was extant as at 1 March 2009.

A sexual relationship

1. As an incidence of their relationship, the husband said that he and the wife had had sexual relations until 2010.  The wife denied that.  At best, she said, the husband only visited once a month.  As I have pointed out, that was inconsistent with the evidence of Ms Z.

2. If there was no intimate relationship consistent with some of the indicia of a de facto relationship, one might wonder why there was so much controversy about the husband’s sexual relationship with Ms T.

The involvement of witness MS T in the affair

1. Ms T to whom I have already referred was an employee of the wife.  The husband said that his “affair” began in 2009 but the wife said she had heard about it from “hearsay”.  Ms T said that the wife approached her in May 2010 saying she was suspicious of the husband “cheating” on her.  The wife denied such a conversation occurred.  For reasons earlier mentioned, I accept the evidence of Ms T.  A little later, according to Ms T, the wife confronted her about having heard a telephone conversation between she and the husband indicating the existence of such a relationship.  The wife denied the event occurred at all.  It was asserted by the husband and also Ms T that the telephone conversation had been taped by or on behalf of the wife and she played it back to them.  Again, the wife denied that that event occurred.  Unsurprisingly, no evidence was produced by the wife of such a recording because she had denied its existence.  Ms T said that her employment was terminated as a result of the confrontation.  It was the wife’s evidence that it was not a termination by way of dismissal but rather Ms T resigned.  All of that is too much of a coincidence.

The messages of the wife to the husband

1. The parties’ respective versions are a stark contrast with each other. On the wife’s assertion that the relationship with the husband ended in 2003, not to mention that he was portrayed by the wife as an employee, one might presume that the wife would not have been at all perturbed or emotionally upset about the “affair”.  That incident brought into sharp focus a series of messages between the wife and the husband in July 2010 which otherwise bear no possible relationship to any employment status between them.

2. I am conscious of inconsistencies in the translations of the parties’ messages to each other and with cultural factors, possibly even different meanings could be construed. 

3. On the morning of 17 July 2010, the wife sent the husband a text message in which she used the expression that she had made an “altar” of her body but she also used words to the effect that her “body” had been given to the husband.  She denied those statements had anything to do with sexual activity with the husband.  When explaining her meaning, the wife said that she wanted to say that she was a person with a grand heart, a faithful and truthful person.  She said she loved the truth and had never lied to the husband in the previous 20 years.  A number of propositions were put to the wife consistent with the husband’s approach that her feelings had not changed about him over the previous 20 years.  She denied all such suggestions but I was left unsure of what meaning to attribute to her statements.  She said she was referring to the husband lying to her and duping her in business and that she had “hatred” in her heart even though one translation used the word “vengeance”. 

4. None of these distractions alters the fact that the messages were sent by the wife.  To the extent that she was meaning that the husband had done something inappropriate by his conduct in their business relationship, she did not say so.  To the extent that she was emotionally distraught about the “affair”, she presumably could not admit it because her stance was that the emotional attachment had ended years before in 2003.

5. In my view, the only inference open is that the wife was conscious of the husband’s infidelity, confronted him, sacked her unfaithful employee Ms T and then emotionally let her heart say how hurt she really felt.

Conclusion

1. To the extent therefore that it needs to be said, for the purposes of s 4AA of the Act, I am satisfied that the husband and the wife were in a de facto relationship which ended in July 2010. On the balance of probabilities, I find that the parties had:

   ·    A common residence until 2010;

   ·    A sexual relationship until 2010;

   ·    Financial dependence one upon the other;

   ·    No jointly owned property at law because the husband was a bankrupt;

   ·    Commitments to each other to share their life in business as well as their personal life as is seen in the text messages and the consequence of the husband’s infidelity to the wife;

   ·    A relationship involving parental responsibility which the husband either declined to involve himself in or was excluded from, by the wife; and

   ·    A public reputation as a couple living together in a genuine domestic relationship.

2. The declaration sought by the husband will be made accordingly.

I certify that the preceding Eighty Eight (88) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 5 April 2012.

Associate: 

Date:  5 April 2012