O and H
[2004] FCWA 143
•27 OCTOBER 2004
JURISDICTION:
FAMILY COURT OF WESTERN AUSTRALIA
| ACT: | FAMILY COURT ACT 1997 |
| LOCATION: | PERTH |
| CITATION: | O and H [2004] FCWA 143 |
| CORAM: | BARLOW J |
| HEARD: | 26 & 27 JULY 2004 |
| DELIVERED: | 27 OCTOBER 2004 |
| FILE NO/S: | PT 7182 of 2003 |
| BETWEEN: | O Applicant |
| AND | |
| H Respondent | |
| Catchwords: |
Family Law - de facto relationship - whether de facto relationship existed as at 1 December 2002 - factors relevant to determining the existence of de facto relationship
Legislation:
Family Court Act 1997, s 205 4(2)
Interpretation Act 1984, s 13A
Category: Not Reportable
Representation:
Counsel:
| Applicant: | Ms G Braddock SC |
| Respondent: | Ms L Turley |
Solicitors:
| Applicant: | Paterson & Dowding |
| Respondent: | Biddulph & Turley |
Case(s) referred to in judgment(s):
Nil
Introduction
1 On 30 December 2003 O 'the applicant' commenced proceedings in the Family Court of Western Australia against H 'the respondent' seeking orders by way of alteration of property interests.
2 On 29 January 2004 the respondent filed a response objecting to the jurisdiction of the Family Court. The basis for that objection was the assertion, that as at 1 December 2002 the applicant and respondent were not living in a de facto relationship.
Relevant statutory law
3 The provisions of Part 5A of the Family Court Act 1997 'the Family Court Act' bestow on the Family Court of Western Australia, jurisdiction to make orders for alteration of property interests in relation to the property of parties who have lived in a de facto relationship.
4 Section 205 4(2) of the Family Court Act provides that Part 5A does not apply to a de facto relationship that ended before the commencement of that Part. Part 5A of the Family Court Act commenced on 1 December 2002.
5 Section 13A of the Interpretation Act 1984 (as amended) 'the Act' relevantly provides that:
"13A.
(1) A reference in a written law to a de facto relationship shall be construed as a reference to a relationship (other than a legal marriage) between 2 persons who live together in a marriage-like relationship.
(2)
The following factors are indicators of whether or not a de facto relationship exists between 2 persons, but are not essential -
(a)
the length of the relationship between them;
(b)
whether the 2 persons have resided together;
(c)
the nature and extent of common residence;
(d)
whether there is, or has been, a sexual relationship between them;
(e)
the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(f)
the ownership, use and acquisition of their property (including property they own individually);
(g)
the degree of mutual commitment by them to a shared life;
(h)
whether they care for and support children;
(i)
the reputation, and public aspects, of the relationship between them."
The parties' positions in relation to the factors referred to in Section
13A of the Act
6 The parties' respective positions in relation to the factors referred to in Section 13A of the Act were detailed in their Papers for the Judge as follows:
(a) The length of the relationship between them The applicant's position:
The relationship between the parties commenced in October1988 and continued until October 2003.
The respondent's position:
The relationship between the parties commenced in or about October 1988 and ceased in October 2003. However, for the majority of the duration of the relationship the parties did not "live together in a marriage-like relationship".
(b) Whether the 2 persons have resided together The applicant's position:
During the period from October 1988 to October 2003, the parties lived together at times for extended periods without a break. At other times the parties lived together for lesser periods as a result of their respective employment/income earning arrangements.
The respondent's position:
During the parties' relationship, they resided together during the following periods:
(i)
8th January 1994 to 28th April 1996 at 'the metropolitan WA property';
(ii)
24 May 1997 to November 1997 at 'the metropolitan Victorian property';
(iii)
November 1997 to 13th May 1998 at 'the Melbourne property';
(iv)
17th July 1998 until 5th November 1999 - for various periods in Melbourne. During this time the respondent commuted between Melbourne and Perth and the parties spent approximately 23 (out of 73) weeks apart.
The applicant and the respondent did not reside together after November 1999.
(c) The nature and extent of common residence The applicant's position: respondent whether "full time" or "part time" was throughout, a marriage-like relationship.
The respondent's position:
(i)
The only common residences shared by the parties during their relationship are those referred to in paragraph (b). Apart from those three residences, for the periods of time referred to in paragraph (b) the parties did not had a common residence. Since November 1999 the applicant has resided with her mother in Perth. The respondent has resided with his parents at their residence in the southwest.
(ii)
From November 1999 to October 2003 the respondent frequently travelled to Perth on weekends to visit the applicant. The applicant travelled to south-weston some weekends to spend some time with the respondent. These visits were infrequent. The parties also holidayed together. During this period the parties did not have a common residence. They simply spent weekends together at their respective parents' homes.
(d) Whether there is, or has been, a sexual relationship between them The applicant's position:
Throughout the parties' relationship from October 1988 to
October 2003, they had a sexual relationship.The respondent's position: The parties had a sexual relationship throughout their relationship, although it was infrequent. It was very limited after November 1999 when the parties lived apart in separate residences.
(i) During the entire relationship the parties maintained separate personal bank accounts. (ii) During periods the parties resided together at WA metropolitan property and the Melbourne property, their living expenses were shared and their incomes were used for their joint benefit. (iii) During periods the parties did not reside together, they each primarily met their own day-to-day living expenses and to a large extent were financially independent of each other. (iv) There were some joint transactions, such as a HBF health insurance policy of the respondent, which the applicant joined and some joint travel insurance policies. (v) The parties had joint bank/investment accounts funded by the sale proceeds of properties sold during the period of their relationship. The parties also set up a joint share trading account. Both parties were able to access these funds. Other than these joint accounts, the applicant and the respondent essentially maintained separate finances. (vi) Otherwise, the applicant and the respondent pursued their separate financial goals; the applicant pursuing her career in banking and finance and the respondent pursuing his interest in the vineyard in the south west. (f) The ownership, use and acquisition of their property (including property they own individually)
(e)
The degree of financial dependence or interdependence, and any arrangements for financial support between them
The applicant's position: resources were used for their joint benefit.
The respondent's position:
The applicant's position: purchased in the sole names of each of the parties and other property was purchased in their joint names. During the parties' relationship the applicant supported the respondent in maintaining his interest in the vineyard in the south west.
The respondent's position:
(i) The WA metropolitan property and Melbourne property were the only properties purchased jointly by the parties. Both of these properties were funded from joint funds and joint mortgages. (ii) In June 2002 two properties were purchased in a Perth suburb in the name of the respondent for investment and renovation purposes. The applicant's family were involved in the venture. The respondent had very little involvement in the purchase and sale of these properties. He did carry out renovations. To the best of the respondent's knowledge, part of the proceeds from the sale of these properties were distributed by the applicant, to members of her family. (iii) In July 2003, a property 'the beach property' was purchased in the sole name of the applicant. Joint funds of the parties were used to meet some of the purchase price. The balance was funded by a mortgage in the sole name of the applicant. The respondent had no input at all into the purchase of the beach property. (g) The degree of mutual commitment by them to a shared life The applicant's position: committed to a shared life until the latter part, when their relationship began to break down.
The respondent's position:
(i) The applicant and the respondent had a commitment to a shared life when they resided together in WA suburban property and in Melbourne, and even during the time that the respondent commuted between Melbourne and the south west; (iv) After November 1999 the applicant and the respondent did not have a mutual commitment to a shared life. They resided in separate properties some 350 kms apart and essentially only spent weekends and holiday periods together. From November 1999, although the parties remained in a relationship, they did not live together, or actively pursue or work together towards a shared life. The applicant remained living in Perth near her family and the respondent lived in south-westwith his family. Each party separately pursued their own goals, rather than a shared life together. (h) Whether they care for and support children The applicant's position:
There are no children of the relationship.The respondent's position:
There are no children of the relationship.
(i) The reputation, and public aspects of, the relationship between them
The applicant's position:
External observations of the parties' relationship were to the
effect that they were living in a "marriage-like"
relationship.
The respondent's position:
(i)
After November 1999, given the considerable amount of time the parties spent apart, there was not much of a public aspect to their relationship.
(ii)
Given the limited time the parties spent together after November 1999, during which time except during some vacations the applicant primarily worked, any external observation of their relationship was limited and not likely to be regarded as "living together in a marriage-like relationship".
The evidence
7 The evidence presented on behalf of the parties may be summarised as follows:
The applicant's evidence
8 The applicant's evidence may be summarised as follows:
(1) The parties:
(a) first met in 1987 (b)
commenced a sexual relationship in October 1988 which continued until July 2003;
(c) commenced living together in January 1993; (d) relationship began to deteriorate in July 2003. (2) During their relationship:
(a)
The parties agreed that as a matter of preference, they would not have a wedding ceremony. However, they always publicly represented their relationship as one being identical to that of a husband and wife. They wanted to be partners for life.
(b)
The applicant generally introduced the respondent as her husband, or other half. She did not like the terms 'de facto' and 'partner'. The respondent mostly introduced her by her name. On a couple of occasions, he introduced her as his wife.
(c)
The applicant referred to the respondent's mother as 'Mrs H'. However, in late 2002 the applicant began to refer to her as 'Mum'. On one occasion the respondent's mother referred to the applicant as her daughter-in-law.
(3)
In May 2000 the parties purchased two wedding or commitment bands. Until October 2003 they both "… constantly wore these … bands on (their) wedding fingers".
(4)
Until the last three months of their relationship, that is to say until about July 2003, the parties had never separated, or talked of separation.
(5) The applicant acknowledged, that most of the time the
parties physically lived together, occurred before 1999.(6)
For a period of about seven years prior to late 1999, the parties lived together on a full-time basis at three separate addresses, namely :
(a)
From January 1993 to April 1997 at the WA suburban property
(b)
From February 1996 to November 1997 at the Victorian suburban property;
(c)
From November 1997 to November 1999 at the Melbourne property.
(7)
The applicant acknowledged in cross-examination, that she did not commence living in the metropolitan WA property on a full-time basis until sometime after January 1993. The applicant estimated that from 1993 to 1994 she lived at the property about 60 per cent of the time. Because the house was being renovated, it was not secure. Therefore, if the respondent was not there, she stayed at her mother's residence.
(8)
The metropolitan WA property was purchased in the joint names of the parties. The Victorian metropolitan property was rented. The Melbourne property was purchased in the joint names of the parties.
(9)
In 1996 the applicant obtained employment in Melbourne. When the applicant moved to Melbourne, the respondent put his name down for a transfer of his employment from Perth to Melbourne.
(10)
The applicant denied that the parties separated during the period from April 1996 to May 1997 as asserted by the respondent in his affidavit sworn on 25 March 2004 'the respondent's affidavit'.
(11)
After the applicant moved to Melbourne, the parties continued to see each other every second weekend. On these weekends, the parties sometimes socialised with friends and on occasions went touring.
(12)
During the intervals of two weeks the parties were not together, save for the cost of renovating the metropolitan WA property, they largely met their own expenses. The cost of renovating the property was paid for by the applicant. During this period the respondent had access to the applicant's bank account.
(13)
By 1996 the applicant's income far exceeded that of the respondent's. In 1996 the parties agreed, that the applicant would apply her income towards the payment of mortgage instalments and household living and leisure expenses.
(14)
The parties also agreed, that the respondent's income would be applied towards the development of a vineyard 'the south-westvineyard' situated on a property 'the south- westproperty' owned by a corporate entity controlled by the respondent's family. In 1996 the parties agreed that it would take approximately five years for the south- westvineyard to generate sufficient income to support both of them.
(15)
Over the entire length of the parties' relationship, the respondent was never certain whether he wished in the longer term to operate the south-westvineyard on a full- time basis. The parties accordingly planned to develop the vineyard to produce more income with a view to it supporting both of them, on the basis they would decide at a later date whether or not to personally operate the vineyard, or simply use the income from it to support them in another pursuit.
(16)
The south-westvineyard was capable of providing the parties with an appropriate lifestyle. The applicant disputed that the respondent thought the south-westvineyard would not be capable of supporting them. She acknowledged the parties never agreed on the amount of income the south- westvineyard would have to produce to support them in an appropriate manner.
(17)
In mid 1998 the respondent was retrenched from his employment in Melbourne. Whilst the respondent remained based in Melbourne with the applicant, in order to enable him to focus on the development of the south- westvineyard, he began to spend more time in Western Australia.
(18) The applicant denied the respondent's assertion, that the
parties separated in August 1998.(19) Until November 1999 the parties' personal effects remained
in Melbourne.(20) In November 1999 the parties relocated from Victoria to
Western Australia. They did so because:
(a)
the south-westvineyard required the respondent's full-time attention;
(b)
the care of the respondent's elderly parents, particularly his father, required the respondent to live with them on the south-westproperty;
(c)
the applicant was unwilling to continue to work long hours as required by her then employment.
(21) The applicant paid the costs incurred in relation to the
parties' relocation from Victoria to Western Australia.(22)
After the parties relocated to Western Australia, all of their furniture, household and personal items were placed in a storage unit. In December 2000 the respondent arranged for all these items to be transported to the south- westproperty and stored in a storage container which he had purchased. The items remained in storage at the south- westproperty until October 2003.
(23)
In the applicant's affidavit sworn on 5 March 2004 'the applicant's affidavit', she stated that the parties had intended living together within 12 to 24 months of relocating to Western Australia. In cross-examination the applicant stated that on their return to Western Australia, the parties expected to be living together on a full-time basis within 12 months.
(24)
From 1999 the parties had no choice but to live physically apart from each other. Several factors prevented them from living together on a full-time basis. In particular:
(a)
the respondent's mother was reluctant to move from the south-westproperty;
(b)
the south-westvineyard had not become as profitable as quickly as the parties had hoped. The south-westvineyard was unable to support the parties. As a result the parties remained almost completely reliant on the applicant's income;
(c)
the parties decided that the applicant should continue in her employment so that income derived from it could be used to develop the south- westvineyard. Therefore, the applicant boarded with her mother in Perth so as to enable her to pursue income from consulting and employment in the banking and finance industry. The respondent lived on the south-westproperty with his parents.
(d)
because the applicant's employment involved a lot of travel, often at short notice, it was not feasible for her to reside at south west;
(e)
the substantial legal fees the parties had incurred in relation to the legal proceedings commenced by the respondent's brother;
(25)
After relocating to Western Australia, the respondent's "… depressed emotional state worsened". In relation to this assertion, the applicant acknowledged that the respondent had never been diagnosed with depression. The respondent's general unhappiness was a key consideration in all of the parties' financial and lifestyle decisions. His condition made the applicant reluctant to place any financial pressure on him.
(26)
After relocating to Western Australia, the parties frequently discussed their plans to live together as soon as possible. They also discussed with their families and friends their frustration at the need to live apart.
(27)
Between early 2000 and mid 2003, the applicant was approached by a number of recruitment firms regarding senior roles at inter-state and overseas banks. During the application and interview processes associated with such possible employment, the parties agreed that if the applicant accepted a position, so as to enable the respondent to "bed down" the south-westvineyard, he would initially relocate with her for half the time and then on a full-time basis within a period of 12 months.
(28) The respondent was unwilling to spend money to rent or
purchase a house in Perth or in the south-westbecause:
(a)
He hated living in Western Australia and particularly hated living in south west;
(b)
The applicant had been offered senior executive roles in inter-state and overseas banks. The parties were interested in exploring these opportunities. They expected that they would relocate inter-state, or overseas as soon as the south-westvineyard was "bedded down".
(29)
Having regard to the amount of time spent away from Perth by the applicant in the course of her employment, it was not practical for the parties to rent separate accommodation in Perth.
(30) The parties had discussed and had selected a site on which
to build a house on the south-westproperty.(31)
From late 1999 until October 2003, the parties lived together as much as their respective commitments enabled. During this period, on average the parties lived together about two days a week. Most of the time they lived together was spent in shared accommodation at the applicant's mother's residence.
(32)
Because of the respondent's reluctance to spend social time at south-westand the applicant's work commitments, she was not able to spend as much time on the south- westproperty between 2000 and 2002 as she would have preferred.
(33)
When the applicant and respondent were together at the applicant's mother's residence or at the south-westproperty, they shared accommodation. On occasions the respondent stayed at the applicant's mother's residence during periods when the applicant was overseas.
(34)
The applicant left some of her clothing at the south- westproperty. The clothing in question was suitable for wearing on the property.
(35)
The applicant generally paid expenses incurred by the parties at her mother's residence and the respondent generally paid expenses incurred by the parties at the south- westproperty.
(36)
During the periods the parties were not together at the same location, they spoke to each other by telephone at least once a day and frequently more often.
(37)
The applicant and/or her mother frequently pre-cooked meals for consumption by the respondent and his parents at the south-westproperty.
(38)
On the applicant's visits to the south-westproperty, she assisted the respondent with cattle and vineyard work. She also used her corporate and management expertise and resources in advising the respondent about matters concerning the development of the south-westvineyard.
(39) Until October 2003 the respondent:
(a)
used the applicant's mother's address as his mailing address for matters which were not related to the south-westproperty;
(b)
"… kept a core set of clothes and toiletries …" at the applicant's mother's address.
(40)
Between November 1999 and February 2003, the parties spent approximately six months travelling together inter- state and overseas.
(41)
During the period from October 2001 to February 2003, the applicant was employed as a managing director by a corporation. Her employment required her to travel overseas. The respondent accompanied the applicant on many of these trips.
(42)
In all of the parties' travel arrangements, they presented themselves as a de facto couple. In particular, the relationship was stated as a de facto one in:
(a) all visa applications; (b) all custom and immigration forms; (c) all health and travel insurance forms; (d) for the purpose of redeeming frequent flyer points. (43)
In 1998 a legal dispute arose between the respondent and his brother. Thereafter until about mid 2003, the applicant had considerable involvement in the Court proceedings arising from the dispute. In December 2001 the applicant attended a mediation conference held in relation to the proceedings. At that conference, the respondent described his relationship with the applicant as a de facto one.
(44)
Until November 2003 the parties continued to have a joint medical insurance policy with HBF. The applicant paid the premiums. In particular, in March 2003 the applicant paid the premium on the policy for 14 months in advance, that is to say until June 2004. As at 21 June 2003, the medical insurance fund still recorded both parties as being covered by the one policy and the address of the respondent as being that of the applicant's mother. Other joint expenses incurred after 1999, included travel insurance and expenses for family birthday gifts.
(45)
The applicant named the respondent as her spouse in all of her income tax returns from 1993 up to and including the financial year ended 30 June 2003.
(46)
Until at least October 2003 the applicant remained a beneficiary of the legal entity used by the respondent to operate the south-westvineyard, namely the Family Trust.
(47) On several occasions the respondent informed the applicant, that he had named her in his will "… as the sole heir to the south-westproperty …".
(48)
The respondent continued to hold an ATM access card, which provided him with unlimited access to the applicant's personal ANZ access savings account. The card was automatically renewed in March 2003.
(49)
Because the parties fully expected that they would be relocating inter-state or overseas, they kept the proceeds from the sale of the Melbourne property in liquid investments. In particular, in relation to their investments:
(a)
the proceeds from the sale of the Melbourne property were initially deposited in a joint term deposit account;
(b)
in January 2000 the parties opened a joint share trading account with an immediate investment of $25,000;
(c)
the parties' financial advisor, namely Hartley Poynton, had authority to act on instructions of either the applicant or the respondent;
(d)
in February 2000 the parties transferred the majority of their funds from the term deposit account to a cash management account with Macquarie Bank. The parties had authority to independently operate this account;
(e)
in November 2000 the parties opened a joint savings account with ING Direct and transferred $170,000 to the credit of that account. The parties had authority to independently operate this account.
(f)
withdrawals from the parties' joint Macquarie cash management account during the period from July 2000 until October 2003 demonstrated the level of their financial interdependence. The transactions included:
(i) a deposit of $50,000 by the applicant in January 2003;
(ii) a withdrawal of $20,000 by the respondent in March 2003;
(iii) a withdrawal of $40,000 by the applicant in early October 2003.
(50)
In 2002, the uncertainty about whether or not the parties would eventually operate the south-westvineyard on a full- time basis, resulted in them having discussions about alternative business ventures.
(51)
The parties decided to commence a home renovating business, which would initially operate on the following basis:
(a)
members of the applicant's family would be primarily responsible for the renovations with some assistance from the parties;
(b)
the respondent would continue to work on the south-westvineyard until income from that property reached a satisfactory level and the home renovating business was fully operational;
(c)
the applicant would continue to work in the finance industry until such time as the income from the south-westvineyard and the home renovation business was sufficient to support the parties.
(52)
In June 2002 the parties purchased two properties in a Perth suburb. The properties were purchased in the name of the respondent. This was done as a matter of convenience, due to the fact the applicant was travelling extensively at about the time the properties were purchased.
(53)
The purchase price of the properties was financed partly by the parties' joint savings and partly by a mortgage. In the mortgage application form dated 28 June 2002, the parties stated that their marital status was a de facto one. Their residential status was stated as 'living with relatives'. The form was completed by the broker in the parties' presence. The broker put each question in the form to each party. The form was signed by both parties.
(54)
During the period from the date of purchase of these properties until they were listed for sale in December 2002, the respondent and members of her family completed extensive renovations to them. During the same period, mortgage payments and expenses incurred in relation to the renovation of the properties were paid for from either the applicant's personal account, or from a joint account.
(55) In mid November 2002 the respondent travelled to Tasmania to investigate on behalf of the applicant, a tax- effective blue gum investment.
(56) In February 2003 the applicant resigned from the corporation. At that time the parties were considering working together full-time on the south-westvineyard and in the business of home renovating.
(57) In accord with their previous practice, in December 2002 the parties shared the Christmas and New Year's celebrations between their respective family homes. (58) In late December 2002/early January 2003 the parties and their respective families holidayed together in neighbouring apartments. This was the first time the parties' families had holidayed together. (59) Until March 2003 the parties continued to purchase birthday presents for each other and for members of the other's family.
(60)
The applicant spent most of February, March and April 2003 at the south-westproperty. During her stay at the south-westproperty, the parties shared a bedroom. During this period, the applicant helped the respondent care for his father. She also assisted the respondent complete renovations to the house on the south-westproperty, so that it better suited his father's short-term requirements. The applicant also assisted the respondent's mother recover from minor surgery.
(61)
During the period from December 2002 to June 2003, in the course of conversations with the respondent's parents, they made comments which gave no indication that they thought the parties' relationship had changed or weakened in any way. In particular:
(a)
the respondent's mother told the applicant, that she and her husband would understand if they wanted to sell the south-westproperty so they could pursue a better lifestyle;
(b)
the respondent's mother suggested to the applicant, that the parties reconsider their decision not to have children;
(c)
the respondent's parents discussed the parties' plans for the applicant to move to the south-westproperty on a full-time basis, or alternatively to lease the property until the parties decided whether they wanted to run the property on a full-time basis.
(62) In early 2003 the applicant and respondent undertook some
renovation work at the south-westproperty.(63) In April 2003 the applicant and respondent completed some
redecorating work at the applicant's mother's residence.(64)
The renovated suburban properties were sold in June 2003. Because the parties had agreed to purchase another property for renovation, the respondent requested the settlement agent to deposit the net proceeds to the credit of an account in the applicant's name.
(65)
The applicant acknowledged that during the period from April to June 2003, she spent most of the time in Perth. During this period the applicant spent most of her time looking for a suitable house to purchase for renovation and resale and in caring for her sister, who had had major surgery.
(66)
As a result during this period, the applicant only stayed at the south-westproperty on two occasions. One such occasion was in May and the other in June 2003. Those visits were short in duration.
(67) The parties spoke to each other by telephone everyday or
every second day during this period.(68)
Although by July 2003 the parties' relationship had began to deteriorate, they agreed to purchase another property and to renovate it together. At that time the parties' intention was to change their lifestyle so that they could spend more quality time together.
(69)
In late July 2003 the parties inspected the beach property. The applicant disputed the respondent's assertion, that he did not have any input into the purchase of the beach property.
(70)
In a telephone call from the respondent to the applicant which occurred on 28 July 2003, he was adamant that the parties should:
(a) purchase the house and renovate it together; (b)
immediately start living together on a full-time basis;
(c)
spend more time socialising, particularly with the applicant's family.
(71)
On 9 August 2003 the parties purchased the beach property. Because the respondent was unable to attend the auction and for reasons of ease of administration, the property was purchased in the sole name of the applicant. The source of the monies used for the purchase price was a joint savings account and an account in the name of the applicant.
(72)
The parties commenced renovating the property with a view to selling it in April 2004. On two occasions during the period from September to late October 2003, the respondent undertook renovation work on the property.
(73)
The applicant was completely shocked and upset when the respondent terminated their relationship for the first time in late July 2003.
(74)
In August 2003 the respondent made inquiries about the possibility of the parties renting a house on a neighbouring property to the south-westproperty. At the time the parties believed that renting a property in that location would provide them with an opportunity to live together full-time, whilst at the same time being close to the respondent's parents.
(75)
Because there remained the possibility of a reconciliation, neither of the parties advised their families that their relationship was in difficulty until after their final separation in October 2003.
(76)
During the period from July to October 2003, the parties had very limited contact. Eventually in late October 2003 the applicant told the respondent she had had enough and agreed the parties should separate.
The evidence of the applicant’s mother
9 The applicant's mother swore an affidavit on her behalf. Mrs
O's evidence may be summarized as follows:
(1) Mrs O had known the respondent for just over 15 years. (2) From October 1988 until October 2003 the parties were in a
close personal relationship.(3)
Mrs O considered the respondent to be part of her family and always referred to him, or introduced him as "her daughter’s partner or as my son-in-law". She had introduced the respondent as her son-in-law, more often than as "her daughter’s partner".
(4)
The parties were often teased about their decision not to marry, or have children. They always responded, that they considered marriage to be "just a piece of paper" and therefore unnecessary.
(5)
The respondent was able to come and go from Mrs O's house as he pleased. The respondent frequently stayed with Mrs O, even though the applicant was away travelling on business. The respondent used Mrs O's address as his mail address.
(6)
The applicant and respondent had their own bedroom and bathroom at Mrs O's house. Because of close living conditions, Mrs O overheard the parties participating in many conversations regarding their situation and their future. From those discussions Mrs O was aware, that the parties did not like living apart and intended living together full-time as soon as possible. The respondent had said that after the south-westvineyard was established, he wanted to relocate. He had spoken of developing the south- westvineyard to a state whereby it could be leased, or put under management.
(7)
When in Perth, the parties spent the majority of their time with Mrs O and members of her family. Their socialization included celebrating festive days together and family dinners. Mrs O's family holidayed with the respondent's family in December 2002 and January 2003. In March 2003 Mrs O, the parties and the respondent's sister attended a concert at Leeuwin estate.
(8)
In March 2003 the applicant was short-listed for a senior position in Sydney. The parties spoke about relocating to Sydney, but later the respondent stated it would take him another 12 months to finish the south-westvineyard and to get his parents settled in town. He therefore intended to relocate to Sydney with the applicant initially on a part-time basis and then on a full-time basis within 12 months.
(9)
In June 2002 the parties purchased two houses in a Perth suburb for the purpose of renovating and reselling them. Mrs O and another of her daughters worked on the houses on a full-time basis. The respondent and the applicant's brother-in-law, worked on the houses on most weekends and on some weekdays.
(10) Mrs O had observed the respondent working on the beach
property.(11)
The last times the respondent stayed at Mrs O's residence were in late September and early October 2003. The applicant continued to reside with Mrs O.
The evidence of the applicant’s sister
10 The applicant's sister swore an affidavit on her behalf. The
sister's evidence may be summarized as follows:
(1) She had known the respondent for over 15 years. (2)
For a period of about 11 years, she considered the respondent to be her brother-in-law. She had always referred to him, or introduced him as "… her sister’s "other half" or as my brother-in-law.". The respondent never objected to her introducing him as her brother-in-law.
(3)
The sister and her husband had always been very close to the parties. For example, at their wedding in 1997, the respondent was invited to be the master of ceremonies and sat at the "immediate family" table.
(4)
Until June 2003 the sister and her husband continued to socialize with the parties at least once a month. The socialization included family dinners and celebrations.
(5)
For two or three days a week over a period of six months, the sister worked on the south-westvineyard. The applicant paid her for this work.
(6)
On at least one occasion between July and mid-December 2002, the sister and her husband assisted the respondent and the rest of the family to renovate the suburban properties.
(7)
During the period from June 2003 to October 2003, on occasions the applicant stayed with the sister. On these occasions she observed, that the applicant telephoned the respondent on a daily basis and that the respondent frequently telephoned the applicant on the sister's telephone landline, or on the applicant's mobile telephone.
(8)
In her affidavit she stated that from family discussions which occurred between January and June 2003, which often included the respondent, she was aware, the parties hated living apart and intended to live together full-time as soon as possible. In evidence she stated that she assumed the parties hated living apart. She was also aware, that the respondent was often very depressed due largely to the legal proceedings instituted by his brother and that the respondent hated living on the south-westproperty with his parents.
(9)
The last time the sister saw the applicant and respondent together was in early August 2003 when they visited her in hospital after the birth of her first child.
The evidence of the applicant’s brother-in-law
11 The applicant's brother-in-law swore an affidavit on her behalf. His evidence may be summarized as follows:
(1) He had known the respondent for just over 15 years. (2)
He considered the respondent to be his brother-in-law, albeit he may not have referred to the respondent as such when introducing him. He had introduced the respondent as his sister-in- law’s other half.
(3)
Since the parties relocated to Western Australia in November 1999, they had spent many weekends and weekdays socializing with him and his wife.
(4) In late 1999 and all of 2000 and 2001, on most weekends
the parties had dinner and drinks with him and his wife.(5)
In October 2001 he and his wife stayed with the respondent at the south-westproperty for the purpose of sorting and planting vine cuttings. They were there for about 24 hours. They returned to the property on another weekend sometime in 2002, to assist the respondent spray the vines.
(6)
In 2002 on most weekends when the parties were not travelling, they had dinner and drinks with him and his wife.
(7)
In April 2002 the parties attended a celebration at the brother-in-law’s residence to celebrate his 10th wedding anniversary.
(8)
In early 2002 the parties and other members of the applicant's family agreed to establish a home renovating business. Two properties in the suburbs were purchased for the purpose of renovating.
(9)
During the period from July 2002 to December 2002, the brother-in-law and the respondent worked on those properties nearly every weekend.
(10)
On 12 November 2002 the parties attended a small family dinner to celebrate the 18th birthday of a nephew of the applicant's.
(11) The parties spent time together during Christmas and New
Year's Eve in 1999, 2001 and 2002.(12) In December 2002 and January 2003, his family holidayed
with the parties in Mandurah.(13)
In March 2003 he and his wife had a baby. In June 2003 his wife underwent major surgery. She did not fully recover from that surgery until September 2003. As a result, during this period, the brother-in-law and his wife did not socialize very much. However during the period March 2003 and August 2003, he saw the parties together on a number of occasions.
(14) From numerous discussions with the parties up to and
including August 2003, his understanding was that:
(a)
they intended to live together full-time as soon as possible;
(b)
the need for the respondent to live on the south- westproperty was very frustrating for both of them;
(c)
they were trying to start a home renovating business which they could operate in conjunction with the south-westvineyard;
(d)
the respondent was often very depressed, due in large part to the legal proceedings instituted by his brother.
The evidence of the applicants family friend
12 The family friend swore an affidavit on behalf of the applicant. His evidence may be summarized as follows:
(1) He was a close family friend of the applicant and her
family.(2)
By virtue of the respondent's relationship with the applicant, in 1990 the respondent became a patient of his practice. He considered the respondent to be part of the immediate O family and always applied family discounts when billing him for services.
(3)
The last time he saw the parties together was just after the applicant's sister gave birth to her first child. This was in August 2003 when the applicant and respondent visited the hospital.
The respondent's evidence
13 The respondent's evidence may be summarised as follows:
(1) The parties met in 1988. (2)
The respondent accepted that during the period from November 1999 to September 2003, the parties' relationship continued, but he did not accept that they "…lived together in a "marriage-like relationship"".
(3)
The parties disliked the term 'de facto'. They never introduced each other as their de facto husband or wife. The respondent was always introduced as "her partner". The respondent acknowledged that the applicant's mother may have introduced him as her son-in-law.
(4)
During the period from 1990 to 1998, on an infrequent basis the respondent introduced the applicant as his partner. When the applicant referred to him as her other half, he understood her to mean her partner. He never disputed this reference. When the respondent used the term 'partner', he did not think of it as meaning 'de facto'.
(5)
The respondent acknowledged, that in about 1999 the applicant purchased two rings. The respondent wore his ring infrequently because he was not married to the applicant. He never considered himself to be married to her.
(6)
In about February 1993, the parties purchased the metropolitan WA property in their joint names with the intention of residing there.
(7)
Prior to January 1994 the parties did not regularly cohabit at that property. The applicant did not move into the property on a full-time basis until January 1994. From then until April 1996 they resided together in the property.
(8) During the period the parties resided in this property, they
maintained separate bank accounts.(9)
From January 1994 until April 1994, the applicant paid the mortgage payments payable in respect of the mortgage secured over the property. From April 1994 until the property was sold in 1997, the respondent paid the mortgage payments.
(10)
During the period from April 1994 to May 1997, the parties undertook renovation work in relation to the property. The cost of the renovation work was shared between the parties, albeit paid from their separate accounts.
(11)
In April 1996 the applicant obtained employment in Melbourne and moved to live there. The respondent remained living in the metropolitan WA property.
(12)
Paragraph 8 of the respondent's affidavit was headed "The first separation: 28 April 1996 to 24 May 1997". In cross- examination the respondent agreed that the parties had not separated during the period 1993/1994 and 1999.
(13)
From April 1996 to May 1997 the parties commuted between Melbourne and Perth for the purpose of seeing each other. The respondent estimated that during this period the parties saw each other approximately once a month for a few days at a time.
(14)
Given it was apparent to the respondent, that the applicant intended to pursue her career in the Eastern states, it occurred to him, that if there was to be any future in the parties' relationship, it would not occur if they continued to live apart.
(15)
At about this time a dispute arose within the respondent's family concerning the south-west property. An opportunity arose for the respondent to continue his employment in Melbourne. Consequently in May 1997 the respondent moved to Melbourne.
(16)
The respondent acknowledged that the move to Melbourne was a good career move for him and that subject to him obtaining a transfer in his employment, it was always his intention to move there. When it was put to the respondent in cross-examination that this being the case, it was misleading for him to have asserted that the parties separated in 1996, he replied that they were at the time living in different States. He agreed their relationship had not broken down at the time. In re-examination the respondent explained that when he used the word 'separation', he meant 'not living in the same house'.
(17)
In May 1997 the WA metropolitan property was sold. The net proceeds from the sale of the property were used partially to repay an amount of $50,000, which the respondent had paid in relation to the mortgage secured against the property. The balance of the proceeds was paid to the credit of joint bank accounts in the names of the parties.
(18)
Throughout the parties' relationship, if either of them required funds from joint accounts, the funds were withdrawn, but always on the understanding that the withdrawer would reimburse the funds from their personal account.
(19)
In Paragraph 12 of the respondent's affidavit, he stated that in May 1996 he resumed cohabitation with the applicant in rental premises in Melbourne. The parties continued to operate separate personal bank accounts. They each met daily living expenses as and when the expenses arose. Whilst the respondent acknowledged that during this period the applicant made a significant financial contribution, he denied she supported him.
(20) In August 1997 the parties purchased the Melbourne
property.(21)
The section of the respondent's affidavit dealing with the period subsequent to August 1998 was headed "The second separation: August 1998 and continuing". In oral evidence the respondent stated that the heading should have read "The second separation: October 1999 and continuing".
(22)
In cross-examination the respondent stated, that he decided the parties had not separated in August 1998 after he reviewed the amount of time spent by him in Melbourne between that date and October 1999.
(23)
From May 1998 to July 1998 the respondent was employed in Western Australia. In July 1998 he was retrenched from that employment. Thereafter the respondent began to divide his time between the south-west property and Melbourne.
(24)
In the period from 4 August 1998 to 5 November 1999, during the following periods the respondent was either in Western Australia, or travelling to Western Australia from Melbourne.
4 August 1998 - 19 August 1998
8 October 1998 - 29 November 1998
4 January 1999 - 10 January 1999
15 March 1999 - 1 May 1999
30 June 1999 - 21 July 1999
24 August 1999 - 14 September 1999
30 October 1999 - 5 November 1999.
During all of these periods, the applicant was in Melbourne. The respondent acknowledged that during the period from August 1998 to November 1999, he spent about two-thirds of the time in Melbourne. He asserted that the parties were separated for one third of the period from August 1998 to November 1999.
(25)
In about October 1999 the applicant resigned from her employment in Melbourne. In November 1999 she returned to live in Perth.
(26)
Following the applicant's return to Perth in November 1999, she resided with her mother. The respondent continued to reside with his parents at the south-west property.
(27)
The parties' domestic arrangements were that their "… mothers basically cooked, cleaned and kept each of …" them.
(28)
The respondent agreed, that the parties' decision to return to Western Australia was made by both of them and that in the early stages after their return, the decision was consistent with them having a future together.
(29)
However from the time the applicant returned to Perth in November 1999, the parties lived separately and increasingly lived separate lives.
(30)
From time to time the parties discussed where their relationship was heading. The discussions never produced any result. They continued going on the way "we were".
(31)
The respondent did not agree, that after the applicant's return from Melbourne it was impractical for her to live at the south-west property, or that it was a financial imperative she remain living in Perth. The reason why the applicant decided to reside in Perth was that she "… desired to have her own financial independence and could best achieve this by pursuing her corporate career in Perth.".
(32)
The respondent acknowledged that at times he was not certain what he intended to do about developing the south- west vineyard.
(33)
The ongoing legal dispute with the respondent's brother made it difficult to develop the south-west vineyard. The respondent regarded the south-west vineyard as his super fund, rather than an income producing venture. The parties had not discussed any specific time as to when the vineyard would produce a sufficient income and/or the quantum of such income.
(34)
In November 1999 the Melbourne property was sold. Settlement was effected in February 2000. The proceeds from the sale were deposited to the credit of a bank account in the joint names of the parties.
(35)
Apart from joint funds held in the joint account into which the proceeds from the Melbourne property were deposited, the parties maintained separate finances and were responsible for their own household and living expenses. The respondent always had an independent source of income. The applicant's income was not used as a backup to finance expenditure incurred on the south-west vineyard.
(36)
The respondent acknowledged that the applicant was one of the beneficiaries of the Family Trust. The trust was established in 1999.
(37)
The respondent acknowledged that in a will executed by him on 7 September 1998, the applicant was described as his de facto wife. He also acknowledged that in that will he appointed the applicant Executrix and Trustee and named her as a beneficiary. He had not revoked the will, but was no longer content with its provisions. He had probably been discontented with its provisions for the past two years.
(38)
The respondent acknowledged, that medical insurance cover for the parties was in his name and that he was recorded as the member and the applicant as the partner. He imagined he would have signed the relevant insurance form.
(39) The respondent acknowledged the application for a mortgage in relation to the purchase of the suburban properties described the parties' marital relationship as a de facto one. The respondent also acknowledged, the form provided for choices to describe a person's marital status, which choices included 'other'. He did not put much credence on words at that time. The form did not accurately describe the parties' relationship. He did not believe he read the document before signing it.
(40)
The respondent acknowledged that as at May 2004, his enrolled address for the purpose of the electoral role was the applicant's mother's address.
(41)
In October 2001 the applicant obtained employment with the corporation. This employment involved her "… undertaking a tremendous amount of overseas travel.".
(42)
Annexed to the respondent's affidavit was a schedule of times, which he asserted the parties spent together between 23 December 1999 and 22 July 2003. Although the schedule is not altogether clear it appears, according to the schedule, that during this period of 1,307 days, the parties spent a total of 413 days together during 109 separate periods.
(43)
The respondent's recollection was that in early 2003 the applicant spent 16 days at the south-west property. However he acknowledged that his mother's diary recorded that during this period the applicant spent 20 days at the property.
(44)
In or about June 2002 the parties made a joint decision to use their joint funds to renovate two properties in suburban Perth. The applicant was of the view that the properties should be purchased in the respondent's name for tax reasons. The respondent did not view the properties until some days after their purchase. On weekends when the respondent travelled to Perth, he undertook some work on the properties. When the respondent queried the applicant about the possibility of the properties being overcapitalized, she informed him that what happened was for her sister and mother to decide and that he was just a worker.
(45)
The respondent acknowledged that the idea behind the purchase of the suburban properties was to create a family business and to generate enough income to enable the applicant to leave the finance industry.
(46)
The respondent had no input at all into the purchase of the beach property. He denied that he was adamant it be purchased. He acknowledged that he agreed to the purchase of the beach property.
(47)
From about July 2002 the parties began to drift apart. Their common goals evaporated. Later in the respondent's evidence he stated that the parties generally got on well together until July 2003. However, the relationship became more strained as time went by.
(48)
The respondent agreed that it was not until June/July 2003 that he first told anyone about any difficulty in the parties' relationship.
(49)
In November 2003 the respondent left a note for the applicant. The respondent agreed that in effect the note was a 'goodbye'. He also agreed, that there was no prior document of this nature.
(50)
It was now clear to the respondent that the applicant did not want to live with him. Had the parties wanted to live together they could have found a way to do so. It was a realization that the applicant never intended to reside with him at the south-west property, that led the respondent in September 2003 to finally end their relationship.
The evidence of the respondent’s mother
14 The respondent's mother swore an affidavit on his behalf. Mrs H's evidence may be summarized as follows:
(1) By virtue of the applicant's relationship with the
respondent, Mrs H had known her for about 15 years.(2) In the early part of the relationship, Mrs H came in contact
with the applicant on an infrequent basis.(3)
Mrs H saw the applicant more frequently during the period from November 1999 until June 2003. Mrs H estimated that during this period, the applicant visited the respondent on the south-west property a few times each year.
(4)
In relation to the visits referred to in the preceding paragraph, the applicant usually arrived on a Saturday morning and left by Sunday afternoon. The applicant often brought work with her, which she undertook during the visit. The applicant's visits often seemed to be rushed.
(5)
During the period from February to May 2003, the applicant spent approximately 25 to 28 days at the south- west property.
(6)
Although there was some talk of the applicant moving to live on the south-west property, or the respondent moving to Perth, it never happened.
(7)
Mrs H recalled an occasion in 2002 when the applicant mentioned she was going to move to live on the south-west property and that the parties were going to build a house on it. Mrs H did not remember specifically commenting on this proposal.
(8)
Mrs H did not recall any conversation with the parties about the respondent leasing the south-west property, until the parties had decided whether they wanted to run the property on a full-time basis.
(9)
When Mrs H had cause to introduce the applicant to other people or refer to her, she used the terms "her sons' other half, or her sons' partner". Mrs H did not refer to the applicant as her daughter-in-law, nor did she ever consider her to be her daughter-in-law.
(10)
Mrs H did not recall the applicant ever referring to the respondent as her husband and/or introducing him as such. She did not recall the respondent ever referring to the applicant as his wife. The applicant referred to Mrs H as "Mrs H or Mrs H".
(11)
Mrs H recalled that over the years she had a number of conversations with the applicant, in the course of which the applicant stated that the parties would never marry, because she did not believe in marriage.
(12)
The applicant was very open about the parties' decision not to have children. When the applicant raised the issue, if Mrs H made any comment, it was to the effect that their decision was a pity. She had never suggested to the parties that they should reconsider their decision not to have children.
(13)
When the applicant visited the south-west property in the early part of 2003, she took Mrs H shopping to buy a refrigerator. The applicant paid for the refrigerator on her credit card. Mrs H repaid the money. Likewise, Mrs H repaid the applicant the cost of some paint and linoleum purchased for her by the applicant.
(14) Mrs H did not recall the applicant doing a lot to assist her
after she was discharged from hospital in 2003.(15)
Mrs H confirmed that the applicant attended a mediation meeting in relation to the Court proceedings instituted by her other son. The respondent also attended the meeting. She confirmed that at the meeting the applicant identified her relationship with the respondent as being his partner. She did not recall the respondent making any comment in relation to this statement.
Factors indicative of whether or not a de facto relationship existed between the parties as at 1 December 2002
I will now address the factors detailed in Section 13A(2) of the Act.
| (a) | The length of the relationship |
15 It was not in dispute that the parties commenced a relationship in 1988 which relationship continued until October 2003.
(b)&(c) Whether the parties resided together and the nature and extent of
their common residence
16 In the context of the facts of this case, it is convenient to deal with the factors referred to in Section 13A(2)(b) and (c) together. following conclusions:
17 In relation to these factors, the evidence leads me to the
(1)
From January 1993 to January 1994, the parties resided together at the metropolitan WA property on a frequent, but irregular basis. I accept the applicant's explanation as to why the parties did not live together on a full-time basis at the property during this period.
(2) From January 1994 until April 1996, the parties resided
together at that property.(3)
From April 1996 to May 1997, to the extent their respective employment commitments permitted, the parties resided together at the WA property and the Victorian property. As was eventually acknowledged by the respondent in evidence, the parties did not separate during this period, albeit due to their respective work commitments, they were physically apart for a significant portion of it.
(4) From November 1997 until mid 1998, the parties resided
together at the Melbourne property.(5)
From mid 1998 until November 1999, to the extent the applicant's employment commitments and the respondent's commitments to the south-west vineyard permitted, the parties resided together for varying periods at the Melbourne property. I accept the respondent's evidence to the effect, that in all the parties resided together at the Melbourne property for approximately two-thirds of this period. Contrary to the respondent's original assertion and as acknowledged by him in cross-examination, the parties did not separate during this period.
(6)
From November 1999 until mid 2003, the parties resided together on a frequent, but irregular basis at Mrs O's residence and the south-west property.
| (d) | Whether there was a sexual relationship between the parties |
18 It was not in dispute that the parties' relationship was a sexual
one.
| (e) | The degree of financial dependence or interdependence between the parties and any arrangements for financial support between them |
19 In relation to this factor, the evidence leads me to conclude
that:
(a)
During the parties' entire relationship, they maintained separate personal bank accounts.
(b)
During the periods the parties resided together at Bassendean and in Melbourne, they shared their living expenses and at least a portion of their respective incomes were applied for their joint benefit.
(c)
During the periods the parties resided at Mrs O's residence, the contribution to any joint day-to-day household living expenses was primarily made by the applicant and/or Mrs O.
(d)
During the periods the parties resided at the south-west property, the contribution of any joint day-to-day household living expenses was primarily made by the respondent and/or his parents.
(e)
During the periods the parties did not physically reside together, each party primarily met his or her day-to-day living expenses.
(f)
Throughout the parties' relationship, they jointly shared some expenses of a recurring nature, such as medical insurance premiums and some holiday expenses.
(g)
During the parties' relationship, they established and maintained joint bank/ investment accounts. Both parties had access to and did access these accounts independently of the other.
| (f) | The ownership, use and acquisition of property by the parties |
20 My conclusions in relation to this factor are as follows:
(1)
At the date of the relationship, the respondent had an interest in the corporate entity which owned the south-west property, which interest he retained.
(2)
During the first six years of the parties' relationship, they jointly acquired and maintained domestic premises in which they resided.
(3)
During the relationship the parties established and maintained joint investments to which they both had independent access.
(4) During the relationship the parties each maintained separate
personal bank accounts(5)
During the latter part of the parties' relationship, they acquired investment properties in which they each had an interest, albeit the properties were registered in either the sole name of the applicant or the respondent.
| (g) | The degree of mutual commitment by the parties to a shared life |
21 My conclusions in relation to this factor are as follows:
(1)
It is apparent that during the period from 1993 to 1999, the parties were mutually committed to a shared life. In reaching this conclusion I have in particular had regard to the following:
(a)
during this period the parties acquired residential premises in their joint names;
(b)
during this period the parties resided together on a full-time basis, or to the extent that their employment commitments permitted;
(c)
the degree of the parties' mutual commitment during this period can in part at least be gauged by the expense incurred and the travelling undertaken, particularly by the respondent, so as to enable the parties to be together whenever their work commitments permitted.
(2)
At the time the parties relocated from Victoria to Western Australia in November 1999, they remained committed to a shared life. In reaching this conclusion I have had regard to the fact, that save for their primary residential arrangements, there was no evidence to suggest there was any change to the parties' relationship and their sense of commitment to each other. It is also relevant to note the respondent's acknowledgement, that the parties' decision to return to Western Australia was a joint one and that in the early stages after their return, the decision was consistent with them having a future together.
(3)
During the period from the parties return to Western Australia until the end of their relationship, there are some contradictory aspects to their commitment to each other and to a shared life.
(4) The facts which during this period indicate an ongoing
mutual commitment to a shared life include:
(a)
the fact there is no evidence of any communication between the parties, or to any other person, to suggest either party had departed from their commitment to each other;
(b) the ongoing trust between the parties evidenced by: (i) their financial activities and dealings, including the fact the applicant remained a beneficiary named in the respondent's will and in the respondent's family trust;
(ii) the fact the applicant remained the executrix and trustee of the respondent's will.
(c)
the fact the parties continued to reside together on a frequent, albeit irregular basis
(d)
save for the fact that the parties did not reside together on a full-time basis, they otherwise presented their relationship to their family and to third parties as an ongoing committed one. My reference to family representations is, in particular, a reference to the joint involvement of the parties in family activities, for example the vacation over the Christmas/New Year period of 2002/2003. My reference to third party representations is in particular a reference to the loan application form signed by the parties, to their medical insurance and their travel arrangements.
(e)
The fact that the parties took no action to divide their chattels which had been placed in storage.
(5)
The factor which during this period is contra-indicant to the parties mutual commitment to a shared life, is their failure to reside together on a full-time basis. In relation to this failure:
(a)
The applicant's employment commitments and the respondent's commitments to the south-west vineyard and property provide an explanation for the parties' residential arrangements during this period.
(b)
I am satisfied that at or about the time the parties relocated to Western Australia in 1999, they agreed that the applicant should continue in her employment so as to enable her to derive income which could be used for the joint benefit of the parties, including the development of the south-west vineyard.
(c)
I accept the applicant's evidence to the effect, that the nature of her employment would have made it impracticable for her to have lived in the south-west district on a full-time basis. Likewise, the respondent's involvement in the south-west vineyard and property would have made it impracticable for him to live in the metropolitan area on a full-time basis.
(d)
Given the amount of time the parties were able to reside together and the availability of accommodation at Mrs O's residence and at the south-west property, it is understandable why they did not establish their own separate accommodation in either Perth or south west.
(e)
As was acknowledged by the respondent, there were times when he lacked certainty about the future development of the south-west vineyard. No doubt the proceedings commenced by the respondent's brother contributed to this uncertainty.
(f)
I think it likely the lack of certainty referred to in the preceding paragraph, contributed to the parties' plans in relation to the south-west vineyard, taking longer to fulfil than envisaged by them when they relocated from Melbourne in 1999.
(g)
I note there was some inconsistency in the applicant's evidence as to when the parties hoped to be in a position to reside together on a full-time basis after they relocated to Western Australia in 1999. However I am satisfied, that at that time it was their intention to in due course reside together on a full-time basis and it remained their intention to do so until at least mid 2003. In reaching this conclusion I have in particular had regard to the fact that:
(i) there is no evidence to suggest that at any time the parties communicated to each other, or to any other person, a change of intention;
(ii) save for the fact the parties did not live together on a full-time basis, no other aspect of their behaviour prior to about mid 2003, indicated a contrary intention.
| (h) | Whether the parties care for and support children |
22 The parties agreed this was not a relevant factor.
(i) The reputation, and public aspects of the parties' relationship
23 My conclusions in relation to this factor are as follows:
(1)
It is apparent that during the period from 1993 until 1999, by virtue of the parties' residential arrangements and their social conduct, they represented themselves as being in a marriage like relationship.
(2)
During the period from 1999 until October 2003, apart from the parties' residential arrangements, all other respects their relationship, including the public aspects of it, remained unaltered.
(3)
In concluding that, save for the parties' residential arrangements, the public aspect of their relationship remained unaltered until 2003, I have in particular had regard to the fact, that the parties did not by word or deed give any indication that their relationship and/or their intentions in relation to their relationship had changed. That this was the case is supported by the evidence of the sister and brother-in-law of the applicant. Significantly, the respondent did not adduce any evidence to the contrary.
Any other relevant factor
24 I am satisfied there are no other relevant factors, or at least no other factors of significance to be taken into account in determining whether the parties were in a de facto relationship as at 1 December 2002.
Conclusions
25
(1)
The critical question for determination, is whether or not the parties' residential arrangements after 1999, that is to say their failure to reside together on a full-time basis, was indicative of a lack of commitment to a continuation of a shared life, such as to lead to the conclusion that at some time after they relocated to Western Australia in 1999 and before 1 December 2002, they ceased to be in a de facto relationship.
(2)
An explanation for the parties' failure to resume residing together on a full-time basis is that sometime after their return to Western Australia in 1999, one or both concluded that they were no longer committed to a shared life, in a marriage-like relationship.
(3)
Another explanation is that the parties' failure to reside together on a full-time basis, was not due to a lack of commitment to an ongoing shared life together, but due to a desire to improve their financial position and/or indecision on the part of the respondent as to the nature and extent of his commitment to the south-west vineyard.
(4)
I have concluded that more likely than not, the answer to the question referred to in Paragraph 25(1) of these reasons, is to be found in the second explanation. In reaching this conclusion I have in particular had regard to the following:
(a)
it would not be appropriate to consider the conduct of the parties subsequent to 1999 in isolation, rather it should be viewed in the context, that for a period of about six years prior to that date, it is not in question that they lived in a marriage-like relationship;
(b)
no evidence was adduced to suggest that at any time either party had communicated to the other, or to any other person, that either of them had changed their feelings, views and intentions about their future together and/or that they considered that there had been an end to their marriage-like relationship;
(c)
all of the other factors referred to in Section 13A of the Act are either consistent, or at least not inconsistent with the parties continuing in a marriage-like relationship.
26 In the result, for these reasons I conclude, that as at 1 December 2002 the parties were in a de facto relationship. It follows that I am satisfied the Family Court of Western Australia has jurisdiction to hear and determine the application filed by the applicant on 30 December 2003 and that the respondent's response filed on 29 January 2004 should be dismissed.
I certify that the preceding [26] paragraphs are a true copy of the reasons
for
judgment delivered by this Honourable Court
Associate
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0
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