Perta and Bergstrom

[2018] FCCA 3783

FEDERAL CIRCUIT COURT OF AUSTRALIA

PERTA & BERGSTROM [2018] FCCA 3783

Catchwords:
FAMILY LAW – Property – whether a de facto relationship existed between the parties – orders made that a de facto relationship did exist between the parties for a certain period, save for a short period of separation.

Legislation:

Family Law Act 1975, ss.4AA, 90RD

Cases cited:

Crick & Bennett [2018] FamCAFC 68

Applicant: MS PERTA

Respondent: MR BERGSTROM

File Number: PAC 4520 of 2017

Judgment of: Judge Newbrun

Hearing date: 25 October 2018

Date of Last Submission: 25 October 2018

Delivered at: Parramatta

Delivered on: 20 December 2018

REPRESENTATION

Counsel for the Applicant: Mr Morley

Solicitors for the Applicant: Pjm Lawyers

Solicitors for the Respondent: Mr Hodges of Mark Hodges

ORDERS

1. The Court declares pursuant to section 90RD of the Family Law Act 1975 (Cth) that the parties were in a de facto relationship from … 2005 until March 2017, save for a period of separation between the end of August 2011 and the beginning of March 2012.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 4520 of 2017

MS PERTA

Applicant

And

MR BERGSTROM

Respondent

REASONS FOR JUDGMENT

Introduction

1. This was a threshold hearing relating to proposed property proceedings between Ms Perta (“the Applicant”) and Mr Bergstrom (“the Respondent”).

The parties’ proposals

1. The Applicant sought a declaration under section 90RD of the Family Law Act 1975 (Cth) (“the Act”) that a de facto relationship within the meaning of section 4AA of the Act between the Applicant and the Respondent subsisted between …2005 and April 2017 (see her Case Outline filed 23 October 2018).

2. The Respondent, on the other hand, sought a declaration that a de facto relationship never existed between the parties.  In the event that the Court was to declare that a de facto relationship did exist between the parties, the Respondent sought an alternative declaration that the said de facto relationship commenced when the Applicant moved into the property in which the parties resided at Property A NSW, and that such de facto relationship lasted less than two years, or alternatively ended more than two years prior to the filing of the Applicant’s Initiating Application filed 8 September 2017.

Material relied upon

1. The Applicant relied upon the following documents:

   a)Initiating Application filed 8 September 2017;

   b)Affidavit of Ms Perta filed 17 October 2018;

   c)Affidavit of Ms B filed 17 October 2018; and

   d)Affidavit of Mr C filed 17 October 2018.

2. The Respondent relied upon the following documents:

   a)Response to Initiating Application filed 7 October 201;

   b)Affidavit of Mr Bergstrom filed 7 October 2017.

3. A bundle of colour photographs was tendered by the Applicant in evidence, and was designated Exhibit A.

Reliability of the Respondent’s evidence

1. The Court had concerns with the reliability of the Respondent’s evidence.  During the hearing, the Respondent conceded that he had made an error in his Affidavit as to the date of the parties’ temporary separation.  He had stated incorrectly in his Affidavit that the parties separated in about May 2014 when the Applicant moved out of his residence, returning about four or so months later.  In fact, the temporary separation had occurred during the period from the end of August 2011 to the beginning of March 2012.  Further, the Respondent candidly stated in his Affidavit that he was unable to state whether the Applicant had first moved into his residence in …2005, and he did not dispute the Applicant’s assertion that she had moved into his residence at this time.  The Respondent’s recollection as to certain historical events was poor; for example, the Respondent could only recall one Christmas going to the Applicant’s daughter’s residence with the Applicant, whereas the parties had attended the Applicant’s daughter’s residence each Christmas on 25 December (as the Court finds below).These concerns relating to the Respondent’s evidence have been taken into account in making findings of fact, as discussed under “Evidence” and “Discussion”.

Evidence

1. The Applicant was born on …1950 and is now 68 years of age.  The Respondent was born on …1939 and is now 79 years of age.

2. The parties first met in about …2004 through a mutual friend, Mr C.

3. In …2004 the Respondent asked the Applicant to come and live with him at his residence.  The Applicant replied that it was too early.

4. Prior to the Applicant moving into the Respondent’s residence, the Applicant came to the Respondent’s residence and told him how much she liked his property.  The parties had a conversation about marriage.  The Respondent said to the Applicant, “if all this works out we might get married”.  The Applicant said, “yes okay”.  The Respondent said, “If everything works out we can get married and go on holiday to Country A”.  The Applicant said, “okay”.  The Court observes that the parties did travel together to Country A on a holiday for six weeks in …2012 (discussed below).

5. The parties commenced a relationship on …2005, when the Applicant moved into the Respondent’s residence at Property A.  The Respondent helped the Applicant to move in.  They cohabited in that residence from this time until about the end of March 2017, save for a period of separation from the end of August 2011 until the beginning of March 2012.

6. Within a few days of the Applicant moving in to live with the Respondent he said to her, “[w]e’re going to make it black-and-white straightaway”.  At that time and thereafter, the Applicant understood this statement to mean that the Respondent was proposing that they get married straightaway.  However, no plans for marriage were made.  The Applicant wanted to be married but it never eventuated.

7. On moving in to the respondent’s residence, the Applicant moved into his bedroom and the parties slept in the same bed (and some months after the Applicant moved in to live with the Respondent, the parties went together to purchase a new bed, after the Applicant told the Respondent that she didn’t like his bed).  They began a sexual relationship which continued until about early 2017, except for the period of separation from the end of August 2011 until the beginning of March 2012.  The parties continued to sleep together in the same bed in the Respondent’s bedroom until about early 2017.

8. When the Applicant moved into the Respondent’s residence, she placed her belongings and clothes in a spare bedroom.  A lock was placed on the door of this bedroom about four to five years after the Applicant first moved in to live with the Respondent.

9. Occasionally the Applicant would sleep in the spare bedroom for personal health reasons.

10. From … 2005 until about early 2017, apart from the period of separation referred to above, the parties went out together socially.  On occasions they visited their friend Mr C at his home.  They visited the Applicant’s daughter Ms B at her home every Christmas.  On other occasions the parties visited Ms B at her home or went to dinner with her and the Applicant’s grandchildren, [D] and [E], at the Suburb F Club.

11. The parties attended the Applicant’s grandson [D]’s Year 12 Formal at Suburb G together.

12. During the parties’ cohabitation they visited the Applicant’s son Mr H at his home in Suburb J. 

13. In … 2015 the parties, the Applicant’s son and his partner went away together for a night in Town K for the Respondent’s birthday.  The parties stayed in the same hotel room in Town K.

14. The parties attended the Church together on several occasions during their cohabitation, three or four times at the Suburb L Church, and four or five times at the Suburb M Church, particularly at Christmas.

15. The parties travelled overseas together to Country A for about six weeks in …2012.  They visited the countries of Country A, Country B, and Country C.  The Respondent paid for the trip.  The parties visited members of the Respondent’s family in Country C and were in Country C for about a week.  The parties met the Applicant’s brother in Country D.  They travelled with the Applicant’s sister for a short period.  The parties, throughout the entire trip, stayed in the same room together and shared a bed.  One photograph of the parties during this trip shows the Respondent’s arm around the Applicant.  During the trip, the Respondent gave Ms B the keys to the Property A residence to look after the property for five weeks and feed all the animals at the residence each day.

16. During the parties’ cohabitation at the Respondent’s residence at Property A, the Applicant always cooked dinner for the Respondent.  On most occasions the parties would sit together and have their dinner.  The Applicant did all the cleaning of the Property A house.  She washed and ironed all the parties’ clothes.  The parties shopped together about once per week, and the Respondent paid for the shopping expenses.  The Applicant would shop in between for items the parties needed between main shops.  The Respondent, during the parties’ cohabitation, paid electricity accounts, telephone accounts, water rates and council rates with respect to the Property A property.

17. In mid-2011, the Applicant told the Respondent that she wanted to tell Centrelink that they were in a de facto relationship.  The Respondent replied that she should not do that.  As a result of this conversation, at about the end of August 2011 the parties separated, with the Applicant leaving the Property A property and going to rent a property at Suburb N.  During this separation the Respondent telephoned the Applicant many times, asking her to “[c]ome home now please” and stating, “Darling, come back to your home”.  On some occasions during that separation, the Applicant went back to the Property A residence to cook a meal for the Respondent and clean the house, as she was worried about him.

18. When the Applicant moved back into the Property A residence at the beginning of March 2012, she moved back into the Respondent’s bedroom.The Respondent helped the Applicant to move her belongings back to the Property A property.  On about 20 March 2012 the parties went to Centrelink at Suburb F and Centrelink was informed that the parties were in a de facto relationship.  When the parties finally separated in 2017, the Applicant informed Centrelink of such separation, and Centrelink processed this information in late August 2017.  The Applicant finally left the Respondent’s Property A residence in about mid-August 2017.

19. The Applicant’s pension concession cards in 2012, 2013, 2014, 2015 and 2017 had the Respondent’s name printed on it.

20. In 2012 the Applicant complained to the Respondent about her teeth.   The Respondent drove her on several occasions to a local dentist.  The Applicant told the Respondent that she needed money for dental work.  On about 30 June 2012, the Respondent gave the Applicant a cheque for $25,000 which he understood was to pay for dental work.

21. During the parties’ cohabitation from 2005 to 2017, the Applicant purchased some curtains for the Respondent’s Property A residence.  She further assisted the Respondent, in relation to his Property A property, in relation to the matters set out in paragraph 35 of the Applicant’s Affidavit.

22. The Applicant’s daughter Ms B made an Affidavit and gave oral evidence.  She was an impressive witness and the Court accepts her evidence. 

23. Ms B had been an acquaintance of the Respondent for thirteen years.

24. In late 2004 Ms B had a conversation with the Applicant in which the Applicant said to Ms B, “I have met a man, Mr Bergstrom, and it looks like I am going to move in and live with him at his place”.  The Applicant told Ms B that she would move in and live with the Respondent later the following year when the Respondent’s family who were visiting from Country D had gone home.

25. In about … 2005, Ms B had a conversation with the Applicant in which the Applicant told her that she had moved in with the Respondent at his home at Property A.

26. Over the years from 2005 up to and including about August 2017, Ms B, together with her partner and her children [D] and [E], visited the parties on occasions, at what Ms B considered at those times to be their mutual home as a couple at Property A.  On occasions the parties visited her together at her home at Suburb O.  In particular, the parties would come to Ms B’s home for Christmas on 25 December each year, and she would go to their home for Christmas on 7 January each year.  The Court refers to the photos in Exhibit A which show, inter alia, the Respondent with the Applicant’s grandchildren when they were young, including one photograph showing the Respondent holding the young granddaughter’s hand.

27. Ms B had observed, at the Property A property, the parties watching TV together.  On occasions, the parties babysat Ms B’s children at the Property A residence.

28. The witness Mr C made an Affidavit and gave oral evidence.  He was an impressive witness.  The Court accepts his evidence.

29. Mr C had known the Respondent for 36 years and the Applicant for 15 years.  He was aware that the Respondent, in about May 2004, was a single man living alone at his Property A property.

30. In …2005, Mr C became aware that the Applicant was moving to the Respondent’s house when he arrived at the Applicant’s rental property at Suburb P.  The Respondent stated to him, in the presence of the Applicant, that he and the applicant were moving in together.  The parties and Mr C proceeded to move all the Applicant’s possessions to the Respondent’s home at Property A.

31. On occasions over the years from 2005 to 2017, the parties visited Mr C’s family together at his home at Suburb Q for meals, and on occasions he visited them at Property A.

Legal principles

1. Section 4AA of the Act sets out the meaning of a de facto relationship:

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

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

   (b) the persons are not related by family (see subsection (6)); and

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

   Paragraph (c) has effect subject to subsection (5).

   Working out if persons have a relationship as a couple

   (2) Those circumstances may include any or all of the following:

   (a) the duration of the relationship;

   (b) the nature and extent of their common residence;

   (c) whether a sexual relationship exists;

   (d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;

   (e) the ownership, use and acquisition of their property;

   (f) the degree of mutual commitment to a shared life;

   (g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;

   (h) the care and support of children;

   (i) the reputation and public aspects of the relationship.

   (3) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.

   (4) A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.

   (5) For the purposes of this Act:

   (a) a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and

   (b) a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.

2. As to the proper construction to be applied to section 4AA of the Act, the Court refers to relevant case law authority of the Family Court of Australia as set out in the Full Court of the Family Court of Australia’s decision in Crick & Bennett [2018] FamCAFC 68 at paragraphs 13-14, including the decision in Crick & Bennett.  

Discussion

1. In resolving the issue of whether the parties were in a de facto relationship, the Court is required to have regard to all the circumstances of the parties’ relationship and determine whether they had a relationship as a couple living together on a genuine domestic basis.  Those “circumstances” may include any or all of the matters set out in section 4AA(2) of the Act, and in this context, the Court refers to the evidence discussed previously in these Reasons. The Court now proceeds to consider those matters and make findings:

a) The duration of the relationship

1. The Court finds that the parties’ relationship commenced in …2005 and continued until about the end of March 2017, save for a period of separation from the end of August 2011 until the beginning of March 2012. The Court places significant weight on the duration of the relationship.

b) The nature and extent of their common residence

1. The parties lived together, during the duration of their relationship, at the Respondent’s Property A residence.  They slept together in the same bed.  The Applicant cooked dinner for the Respondent each night of the relationship, other than when the parties were away.  The parties shopped together each week for groceries, with the Respondent paying for such groceries.  Otherwise the Applicant went shopping for other provisions during the week.  The Applicant did the household cleaning work at the Property A residence.  She did the parties’ washing.  The Applicant assisted the Respondent with certain manual chores in the context of renovating and maintaining that property.  She purchased curtains for the property.  They purchased a new bed together.  The Court places significant weight on these facts.

c) Whether a sexual relationship exists

1. The parties enjoyed a sexual relationship throughout their relationship.  They slept in the same bed in the one bedroom.  Early in the relationship, they purchased a new bed together, with the wife paying the deposit for the new bed.

d) The degree of financial independence or interdependence, and any arrangements for financial support, between them

1. Whilst the parties maintained separate bank accounts, again, the Respondent paid for the parties’ weekly food, provided $25,000 for the Applicant’s dental work, paid for the parties’ overseas trip in 2012, and paid for utilities, including electricity, for the Property A residence.  The Applicant never paid rent or board to the Respondent.  The Court places significant weight on these facts.

e) The ownership, use, and acquisition of their property

1. The parties, again, purchased a new bed together for their mutual use.

f) The degree of mutual commitment to a shared life

1. The parties regularly visited Ms B’s family at her home, including attending there for Christmas each year.  Ms B and her family came to the Property A residence, including for Christmas each year, and on occasions the parties babysat Ms B’s children.  They went on an overseas trip together and met each other’s extended family on the trip, with Ms B looking after the Property A residence whilst they were away.  The parties participated in Ms B’s son’s Year 12 Formal.  They socialised with Mr C, going to his home together.  The parties together visited the Applicant’s son at his home at Suburb J.  The Respondent used to play with the Applicant’s children.  He would help with maintenance at Ms B’s home.

g) Whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship.

1. Not applicable.

j) The care and support of children

1. Not applicable.

i) The reputation and public aspects of the relationship:

1. The Court refers to the above discussion as to relevant circumstances of the parties’ relationship. Further, the Court refers to Ms B’s evidence as to her visits to the Property A residence at what she considered that those times to be the parties’ mutual home as a couple.  The Court refers to Ms B’s evidence that when visiting the Applicant and the Respondent at the Property A residence, she accompanied the applicant to a room that the Applicant referred to as “our bedroom”, and in this context, Ms B was aware that the only persons living at this residence were the parties.  The Court refers to Mr C’s evidence in this context.  The Court refers to the photos in Exhibit A which reveal the Respondent being photographed, inter alia, with the Applicant and Ms B’s family, and with the Applicant and his extended family overseas.  The Court refers to the parties’ attendance with the Applicant’s family at the Suburb F club on occasion, and the parties’ attendance at church on occasions.  The Applicant’s pension card for numerous years had the Respondent’s name on it.

1. The Court takes into account the parties attending upon Centrelink in March 2012, at which time Centrelink was informed that the parties were in a de facto relationship.  The parties’ status was only altered from de facto relationship status to separated status in August 2017.  (In this context, the Court acknowledges that the parties’ statements to Centrelink are not determinative).

2. In summary, by reference to the above discussion as to the circumstances of the parties’ relationship and evidence previously discussed in these reasons, the Court is satisfied on the balance of probabilities that the parties were in a de facto relationship from … 2005 until March 2017, save for a period of separation between the end of August 2011 and the beginning of March 2012. 

3. The Court is satisfied on the balance of probabilities that the parties had a relationship as a couple living together on a genuine domestic basis from … 2005 until March 2017, save for a period of separation between the end of August 2011 and the beginning of March 2012. 

4. The Court, in reaching its above determinations, has not overlooked the Respondent’s trip to Country D in …2016 for about six weeks, without having previously disclosed that proposed trip to the Applicant prior to his departure for Country D.   Nevertheless, the Court is not satisfied that this trip marked any termination of the parties’ de facto relationship, observing, in particular, that on the Respondent’s return from Country D, the parties’ de facto relationship continued unaffected by such trip.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 18 December 2018