Piovene & Muhlfeld (No 3)

Case [2024] FedCFamC1F 614

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Piovene & Muhlfeld (No 3) [2024] FedCFamC1F 614

File number: SYC 4211 of 2023
Judgment of: SCHONELL J
Date of judgment: 19 September 2024
Catchwords: FAMILY LAW – DE FACTO RELATIONSHIP – Where both parties sought declarations pursuant to s 90RD of the Family Law Act 1975 (Cth) – Where the applicant asserts the parties were in a de facto relationship for approximately 12 years – Where the applicant contends that the relationship broke down in October 2022 – Where the respondent contends that a de facto relationship never existed – Where the applicant commenced proceedings in June 2023 – Where the applicant lived in the respondent’s investment property for nine years – Where the applicant did work for the benefit of the respondent’s investment properties – Both parties have children from previous relationships – Parties held no real property together – Parties shared Christmas and birthday celebrations – Parties travelled extensively together – Where there are issues of credit in relation to both parties’ evidence – Where the applicant’s evidence in these proceedings is contradictory to his evidence in previous family law proceedings and representations made to the SSAT – Where the evidence is diametrically opposed as to whether the parties slept in the same room together and the extent of a sexual relationship – Where consideration of the relevant provisions in the definition of “de facto relationship” in section 4AA – Declaration made that a de facto relationship never existed.
Legislation:

Evidence Act 1995 (Cth) s 140(1)

Family Law Act 1975 (Cth) ss 4AA(1), 4AA(2), 4AA(3), 4AA(4), 90RD
Cases cited:

Browne v Dunn (1893) 6 R 67; [1893] 1 WLUK 44

Commercial Union Assurance Co of Australia Ltd v Ferrcom (1991) 22 NSWLR 389

Cubillo v Commonwealth of Australia (No 2) (2000) 103 FCR 1; [2000] FCA 1084

Fairbairn v Radecki (2022) 275 CLR 400; [2022] HCA 18

Jones v Dunkel (1959) 101 CLR 298; [1999] HCA 8

Nguyen v Tran (2018) MVR 16; [2018] NSWCA 215

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Division: Division 1 First Instance
Number of paragraphs: 185
Date of hearing: 26 August – 28 August 2024
Place: Sydney
Solicitor for the Applicant: Mr Reeve, Marsdens Law Group
Counsel for the Respondent: Mr Jones SC
Solicitor for the Respondent: Barkus Doolan Winning

ORDERS

SYC 4211 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR PIOVENE

Applicant
AND:

MS MUHLFELD

Respondent

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

19 SEPTEMBER 2024

THE COURT DECLARES THAT:

1.Pursuant to s 90RD of the Family Law Act 1975 (Cth) as between the applicant and the respondent a de facto relationship never existed.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family…

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AGLC
Piovene & Muhlfeld (No 3) [2024] FedCFamC1F 614
Case
[2024] FedCFamC1F 614
Decision Date

CaseChat Overview and Summary

The case of Piovene & Muhlfeld (No 3) involved a dispute between Mr Piovene and Ms Muhlfeld over whether they were in a de facto relationship between 2010 and 2023. The applicant claimed they were in a de facto relationship for approximately 12 years, which broke down in October 2022. The respondent, however, maintained that they were merely friends and that no de facto relationship existed. The case was heard by the Federal Circuit and Family Court of Australia, Division 1.

The primary legal issue before the court was whether the applicant and respondent were in a de facto relationship under section 4AA of the Family Law Act 1975 (Cth). This required the court to consider the relevant circumstances of the relationship, including duration, nature, and extent of their common residence, financial dependence, and other factors listed in section 4AA(2) of the Act. The court had to determine if the evidence supported the existence of a de facto relationship between the parties.

The court found that the evidence did not support a finding that the parties were in a de facto relationship. The respondent's evidence was accepted over the applicant's, particularly in relation to the use of the Suburb T apartment and the extent of their sexual relationship. The court also considered the applicant's failure to attend the respondent’s father’s funeral and his contradictory statements in previous proceedings. The court concluded that the evidence did not support a finding of a de facto relationship, and thus, made a declaration that such a relationship never existed.

The court's decision was based on a detailed assessment of the evidence presented by both parties. The court found the respondent’s account more credible and consistent with the circumstances, and ultimately determined that the applicant's claim for a de facto relationship was not substantiated. The court's reasoning highlighted the importance of assessing all relevant circumstances in determining the existence of a de facto relationship under the Family Law Act.

Orders

Orders of the court

SYC 4211 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR PIOVENE

Applicant

AND:

MS MUHLFELD

Respondent

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

19 SEPTEMBER 2024

THE COURT DECLARES THAT:

1. Pursuant to s 90RD of the Family Law Act 1975 (Cth) as between the applicant and the respondent a de facto relationship never existed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

The respondent says that she and the applicant were not in a de facto relationship, rather he was her best friend. BACKGROUND FACTS The applicant was born in 1961 and is currently 63 years old. The respondent was born in 1958 and is currently 66 years old. The parties were in a personal relationship in 1998 which subsequently ended in 2000. The applicant went on to marry and had two children. The applicant also had a child from a previous marriage. The respondent, widowed from a previous marriage that had produced two children, did not go on to marry. All children at the time of hearing were over the age of 18 and there are no children of the applicant and respondent. The parties agree that they resumed contact with one another and agreed to meet in person in 2010. The applicant in his affidavit says: 26.In or around late 2010, I called [Ms Muhlfeld] one day at work at her [business] in [Suburb W]. Leading up to my decision to make this call, I had wondered whether there was any prospect of being able to resume my relationship with [Ms Muhlfeld]. … I recall upon starting to speak, [Ms Muhlfeld] immediately said to me words to the effect of "[Mr Piovene], how have you been?". During the phone call, I recall [Ms Muhlfeld]and I briefly discussed what we had each been up to over the years and how we were each going. I then said to [Ms Muhlfeld] words to the effect of "would you like to go out to dinner together? It would be great to hear more about how you've been"……28.During the dinner with [Ms Muhlfeld], I immediately got on well once again with [Ms Muhlfeld] as I had done years prior during the time we were together. Although it had been a number of years, I did not feel uncomfortable in any way with [Ms Muhlfeld] and I did not form any impression that [Ms Muhlfeld] felt uncomfortable or awkward around me. We spent a number of hours talking away together at the restaurant. [Ms Muhlfeld] spent time telling me about what she had been up to the last few years, both in terms of business and also on a personal basis with her family and friends. I similarly talked with [Ms Muhlfeld] and my events, both in terms of my career and also my family… At the end of the night, I then drove [Ms Muhlfeld] to her home. We kissed a number of times in the car before we said goodnight to each other and each went home. …32.It was around this time, which to the best of my recollection was about September 2010, that I say my de-facto relationship with [Ms Muhlfeld] commenced. I did not date other women during the period of our relationship until I had an affair with [Ms X] in [mid] 2022 which led to our break up. [Ms Muhlfeld] and I had an active sexual relationship throughout the twelve years we were together. We had intercourse not less than weekly for most of the relationship…33.I say that our relationship continued up until the time of our separation on 26 October 2022 as a de-facto couple. The respondent says:32.When [Mr Piovene] and I met again in 2010 we started a business relationship and friendship. From that time until after the end of my relationship with [Mr N] in 2014, [Mr Piovene] and I were not intimate with each other, that is we did not have sexual relations together.33.Between 2015 to 2019 there were a few occasions we had sexual intercourse together. This usually arose if we had gone out to dinner and I did not have my car and [Mr Piovene] would say words to the effect 'Just stay over, I've had too much to drink". There were occasions that I stayed at the [Suburb U] property in a separate bedroom to [Mr Piovene]. 38.In 2010 I received a telephone call from [Mr Piovene] on my work telephone. This was the first time I had heard from or spoken to [Mr Piovene] since we ceased dating in 2000. [Mr Piovene] said to me words to the effect of:"What have you been up to? Can we meet for lunch?"39.I agreed and met [Mr Piovene] for lunch at [a restaurant] in [Suburb W]…

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The applicant contended that he was very close to the respondent’s father. Despite this asserted closeness, following his death in 2017 and despite the applicant’s assertion that he was in a de facto relationship with the respondent, he did not attend at the funeral. He provided no explanation for why that might be so.CONCLUSION As referred to earlier in these reasons, the High Court in Fairbairn & Radecki observed that:39. The language of s 4AA of the Act and its reference to “living together” requires no different approach to determining whether a relationship exists of the kind defined. “Living together”, consistently with authority, should be construed as meaning sharing life as a couple. Section 4AA does not prescribe any way by which a couple may share life together. Its language is sufficiently broad to accommodate the great variety of ways a de facto relationship may exist. That conclusion is supported by the varied factors listed in s 4AA(2). In a given case, some of the factors listed in s 4AA(2) may be relevant and some may be irrelevant; inevitably some may have greater prominence than others… Section 4AA makes it apparent that each case will turn on its own facts. Not every fact relied upon by a party will point either consistently or necessarily logically to the conclusion sought by that party. Such proposition is self-evident on the facts in this case. It is for that reason that there is a requirement to have regard to all of the circumstances of their relationship to determine if the relationship had broken down. On my assessment of all of the evidence as referred to above, I am not persuaded that the evidence supports a finding that the parties were in a de facto relationship between 2010 and 2023. Most persuasive and telling against there being a de facto relationship as asserted by the applicant, includes my acceptance of the respondent’s evidence on the use of the Suburb T apartment and the rejection of the applicant’s evidence, the respondent’s evidence as to the extent of their sexual relationship, the respondent’s de facto relationship with Mr N, the applicant’s statement that he planned to marry Ms NN, the rejection of the applicant’s evidence of staying at Suburb W, the text messages between Ms F and others as to the nature of the applicant’s relationship with the respondent, the failure of the applicant to call evidence from his daughters, son, sister and niece and the unexplained failure of the applicant to attend the respondent’s fathers funeral and wake. In this matter, having regard to all of the circumstances referred to above I am not persuaded that I could make the declaration sought by the applicant. I am persuaded however that the evidence supports the making of a declaration as sought by the respondent. Accordingly, I will make the declaration sought by the respondent.

Ratio Decidendi

Legal Principle Established

To the extent I have not already done so I set out below my considerations of the statutory indicia.The duration of the relationship The parties are at issue as to the existence of a relationship. A finding as to the existence and consequential duration of the relationship is informed by an assessment of all of the relevant circumstances in the period between the date asserted by the applicant as to when a relationship if any commenced and if established when the relationship broke down.Nature and extent of their common residence There was no submission that the Suburb T, Suburb U, or any other residence was considered a ‘common residence’. I have already made findings that the parties did not at any time occupy or use the Suburb T apartment in the manner contended by the applicant between its purchase in 2010 and 2013. In that period, contrary to the sworn evidence of the application and consistent with the evidence of the respondent and her witnesses, I find that the Suburb T property was occupied by the respondent’s daughter and then by Mr N. There is no issue that from 2013 the applicant occupied the respondent’s property at Suburb U property until he moved out at the end of 2022. I am not satisfied that the parties ever had a common residence. At its highest the applicant resided in the Suburb U property and the respondent resided in her home at Suburb W. On occasions the respondent stayed overnight in the Suburb U property and at other times they stayed in the respondent’s property in Region GG and overnighted in other places on holidays. The applicant’s assertion that he stayed in the respondent’s home at Suburb W more regularly after 2017 at paragraph 49 of his affidavit is contradicted by the evidence of the respondent and witnesses in her case. In that respect, Ms K gives evidence of having lived in the granny flat at Suburb W between the end of 2017 and 2021 and that the granny flat was about 10m from the main house. She says:15.I recall an occasion when the Applicant stayed in the spare room at [Ms Muhlfeld]’s and the reason I recall this one-off occasion is because of a conversation that occurred between me and [Ms Muhlfeld] about the [dog] urinating on the bed in the spare room. This evidence of a one-off occasion sits inconsistent with the evidence of the applicant. Mr O’s evidence is deposed as follows: 6.Between 2017 and 2023 I lived in the granny flat at my mother’s home at [OO Street], [Suburb W]. During this period, I observed [Mr Piovene] visit the home from time to time, around twice a month, and I overheard [Mr Piovene] and my mother talking about business opportunities. I did not at any time observe [Mr Piovene] to stay overnight and I saw him leave the home or notice that he had left later in the day on each occasion. I would many times each week go into my mother’s home. I did not at any time see [Mr Piovene]’s personal items or belongings at my mother’s home. I prefer the evidence of Mr O and Ms K on this issue. I am not satisfied that the applicant stayed in the respondent’s home at Suburb W as often as he contends.