Rathbone and Robinson
[2012] FMCAfam 358
•20 April 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RATHBONE & ROBINSON | [2012] FMCAfam 358 |
| FAMILY LAW – De facto property – same sex relationship – issue as to when de facto relationship commenced and when the de facto relationship ended – finding that de facto relationship was longer than two years – declaration made. |
| Family Law Act 1975, Pt VIIIAB, ss.4AA, 90RD, 90SB |
| Roy & Sturgeon (1986) 11 FLR Moby & Schulter (2009) FamCA 1285 Hamblin & Dahl [2010] FMCAfam 514 |
| Applicant: | MS RATHBONE |
| Respondent: | MS ROBINSON |
| File Number: | DNC 76 of 2011 |
| Judgment of: | L.Turner FM |
| Hearing dates: | 3 and 4 August 2011 and 10 February 2012 |
| Date of Last Submission: | 10 February 2012 |
| Delivered at: | Darwin |
| Delivered on: | 20 April 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms Morgan |
| Solicitors for the Applicant: | Maleys Barristers & Solicitors |
| Counsel for the Respondent: | Ms Terrill |
| Solicitors for the Respondent: | Terrill & Associates |
ORDERS
It is declared pursuant to section 90RD Family Law Act 1975 that for the purposes of any order pursuant to section 90SM Family Law Act 1975, that the applicant and respondent were in a de facto relationship from March 2008 until November 2010.
That pursuant to section 26 of the Federal Magistrates Act 1999 the parties and their legal representatives attend a conciliation conference on 3 July 2012 at 9.00am with a Registrar of the court and that both parties produce to the other fourteen (14) days prior to the conciliation conference, documents as prescribed in Annexure A of this order.
That the matter is adjourned to 17 July 2012 at 9.00am for mention.
That the parties have liberty to re-list the matter on short notice in respect of any issues concerning disclosure or valuations.
IT IS NOTED that publication of this judgment under the pseudonym Rathbone & Robinson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
DNC 76 of 2011
| MS RATHBONE |
Applicant
And
| MS ROBINSON |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties are in dispute as to the division of property now that their de facto relationship has come to an end.
It is argued by the respondent that the court does not have jurisdiction to determine a property division as the de facto relationship was for a period that was less than two years.
The applicant argues that the relationship lasted well in excess of two years and therefore the court has jurisdiction to determine the division of property.
Both parties are seeking a declaration pursuant to section 90RD Family Law Act 1975 as to whether or not a de facto relationship existed for a period of two years.
Issues
What should have been a relatively short and concise hearing over a discreet issue turned into a long and protracted hearing lasting three days with the first two days in August 2011 and the last day of hearing in February 2012.
Part of the protraction was due to the long and unnecessary cross-examination as to the existence of the de facto relationship during the whole of the relationship, when practitioners should have restricted questioning to the commencement and conclusion dates alleged by the parties.
The other aspect of protraction and confusion was that the legal practitioners changed the goal posts as to the alleged lengths of the de facto relationship during the hearing.
At the commencement of the hearing the applicant submitted that the relationship commenced on 11 April 2008 and ended in November 2010.
At the conclusion of the hearing the applicant submitted that the relationship commenced in October 2007 and ended in November 2011.
At the commencement of the hearing the respondent submitted that the relationship commenced in late 2008 / early 2009 and ended in November 2011.
At the conclusion of the hearing the respondent submitted that the relationship commenced in late 2008 and ended in April 2011.
Because of these protractions witnesses were called that provided little or no assistance to the court accompanied by affidavits full of irrelevant information.
I have no doubt that significant legal expenses could have been avoided by both parties if more thought had been put into the issues to be addressed with the court in seeking the declaration.
The issues requiring determination are:
a)When did the de facto relationship commence?
b)When did the de facto relationship end?
c)Does the de facto relationship fall within the jurisdiction of Part VIIIAB Family Law Act 1975?
d)If so, what is to be the future case management of this matter?
e)Additional issues.
In addressing each of the issues I have:
a)Read all the material as marked in the court file;
b)Read the exhibits;
c)Considered the oral evidence of the parties and the witnesses;
d)Considered the relevant sections of Part VIIIAB Family Law Act 1975;
e)Considered section 4AA(1)(c) Family Law Act 1975.
Findings of fact are made on the balance of probabilities, having regard to the evidence and in what follows statements of fact constitute findings of fact.
When did the de facto relationship commence?
Pursuant to section 4AA(5)(b), a de facto relationship can exist between parties of the opposite sex and parties of the same sex.
According to section 4AA(1)(c) in determining whether persons are in a “de facto relationship” regard must be had “to all the circumstances of their relationship” and whether “they have a relationship as a couple, living together on a genuine domestic basis”.
The circumstances to be considered as to whether the parties “have a relationship as a couple” are canvassed in section 4AA(1)(2).
However the legislation is mute as to what constitutes a “genuine domestic basis”.
The danger in trying to have a set of rules to follow in determining a “genuine domestic basis” was addressed by Powell J in the leading authority of Roy & Sturgeon (1986) 11 FLR at page 274 and 275:
“With respect, it seems to me, to attempt to dissect the phrase “living together as a husband and wife on a bona fide domestic basis” into discrete elements, and then to test the facts of a particular case by reference to a set of a priori rules in order to establish whether a particular element is or is not present, is to ignore the fact that just as human personalities and needs vary remarkably, so too were the various aspects of their relationship, which lead one to hold that a man and woman are living together as husband and wife on a bona fide domestic basis, which will vary from case to case. … The application of the basis definition to the myriad facets of private personal relationships between men and women will inevitably be a matter of degree and proportion. The attributes and circumstances of such relationships differ greatly, ranging from what is little more than a casual liaison to a continuing affectionate companionship, to a long term merging of lives and resources. Moreover, the nature and quality of a particular relationship may change and develop over time, making it sometimes very difficult to pinpoint a time when the relationship should assume a legal significance.”
The determination of whether a de facto relationship exists and when it commenced and ended is an onerous task, as the discretion of the court is very wide.
This was not lost on Cronin J in Moby & Schulter (2009) FamCA 1285, where Cronin J states:
“A finding as to the relationship is at least open on the untested evidence, because both parties have acknowledged they have some sort of relationship, bearing in mind that section 4AA gives the court a very wide discretion to define what a relationship really means.”
Cronin J further then goes onto say that when referring to the definition that:
“It is very vague.”
What is not in dispute is that the de facto relationship existed between late 2008 to April 2010.
In order to ascertain whether the de facto relationship commenced prior to late 2008 it is necessary to look closely at the history of this relationship:
a)The parties met online through an internet site in or around mid 2007;
b)By August/September 2007 the parties were speaking by telephone, exchanging emails and texting each other on a regular basis;
c)In October 2007 the parties met for the first time face to face when the applicant flew from [E] near Rockhampton to Darwin to spend time with the respondent and her two children;
d)In the seven to ten days the applicant stayed with the respondent a sexual relationship commenced;
e)In November 2007 the respondent flew to [E] and spent a week or so staying with the applicant;
f)In late December 2007 the applicant returned to Darwin and spent some two weeks staying with the respondent;
g)It was around this time the parties started to discuss the prospect of the applicant moving permanently to Darwin;
h)The applicant in February 2008 arranged a surprise visit to Darwin for the respondent’s birthday and spent some 10 to 14 days with the respondent;
i)In early April 2008 the respondent flew from Darwin to meet the applicant at her parents place at [H] and then after spending a few days with the parents the parties drove to Darwin;
j)By mid April 2008 the applicant was living with the respondent and her two children in the respondent’s home in Darwin.
The applicant states that as the parties were in a committed relationship in October 2007 then this is when the de facto relationship commenced.
The respondent states that the relationship did not become a de facto relationship until some months after the applicant had moved into the respondent’s house.
I find having regard to this history that the applicant’s claim that the de facto relationship commenced in October 2007 when the parties first met face to face is nonsensical and has not been established based on the following:
a)Apart from the commencement of a sexual relationship, no other circumstances as detailed in section 4AA(1)(2) existed in October 2007;
b)It is apparent from the evidence that in October 2007, the parties were in the infancy of their relationship and still getting to know each other. I find that the parties were “dating” at this point in time;
c)Discussions as to the applicant relocating to Darwin had not yet occurred and did not occur until some two months later;
d)The celebration by way of a dinner of what the applicant states was the third anniversary in October 2010 is not conclusive or indicative of anything other that the celebration of an important event, that event being the commencement of an intimate relationship with the respondent.
But was the commencement of the de facto relationship as late as the end of 2008 as claimed by the respondent?
In order to give consideration to this submission, the history of the relationship between April 2008 and the end of 2008 must be explored:
a)When the applicant moved in with the respondent to her Darwin home in April 2008, the respondent moved into the same bedroom as the applicant;
b)Although the amount and frequency of payments is in dispute the applicant until September 2008 contributed monies towards the household expenses as well as $150 per week which the applicant states was towards the mortgage and the respondent classifies as being rent;
c)In September 2008 the applicant transferred $70,000 to the respondent. Although how the money was used is in dispute, it was not returned to the applicant until February 2011;
d)In November 2008 the applicant traded in her vehicle for a Holden Colorado Dual Cab which, although the extent of use is in dispute, was used by the respondent and her children;
e)During 2008 the parties had five camping trips together;
f)By Christmas 2008 an in-ground pool was built at the respondent’s property;
g)At the end of 2008 the applicant’s parents stayed with the parties for Christmas.
I find having considered all of the evidence that the parties commenced the de facto relationship in April 2008 for the following reasons:
a)Whilst the respondent goes to great length in her affidavit material to distinguish that their relationship leading up to the applicant’s move to Darwin in April 2008 as being nothing more than a “friendship” with a “sexual element” attached, her writings leading up to the move indicate otherwise as illustrated by the following:
i)In the 2007 Christmas card “….I get to see you, you beautiful woman….So looking forward am I, having you up here…it really does feel like Christmas”;
ii)In a letter written in late December 2007/early January 2008 “Excited I am…….excited because I’ve get to be with you ….Everything about ‘you and I’ has been fantastic and I’m so happy you are reading this because it means you’re HERE! Yippee….and I’ll be with you in 24 hours……Please make yourself at home, I like the thought of you feeling welcome and comfortable in my home. Been a long time between drinks for you and me lady”;
iii)In the 2008 Valentines Day card which itself reads “For my love, with all my hugs, with all my kisses…and with all my heart- that’s how much I love you” the respondent writes “You are so far…But yet so near, simply because you are ALWAYS in my thoughts, my dreams and my heart. I love you honey”;
iv)In a card sent in March 2008 by the respondent to the applicant just weeks prior to the applicant’s move to Darwin, the card itself has a lengthy inspirational poem with the title “I love you beyond what words can say”, and the respondent writes “[Ms Rathbone], Showing you I love you…is easy! To tell you is harder, because there are few words to explain the kind of love I have for you. I can’t wait to see you in [H] and start of journey – together. All my love [Ms Robinson] xxx”;
b)I find that these writings are a true reflection of the respondent’s views and expectations of the relationship, moving from where the parties were dating, to a courtship complete with expressions of love and definite plans for the immediate future;
c)I do not accept the respondent’s evidence that there was never a decision between the parties to live together as deposed to at [3] of her May 2011 affidavit and that it was only a temporary arrangement until the applicant found work and a place to live at [12] of her July 2011 affidavit for the following reasons:
i)The respondent’s level of excitement in her writings referring to the “start of journey. – together”;
ii)How the move was organised with the respondent travelling to [H] to stay with the applicant and her parents and then the road trip together to Darwin;
iii)The photo of the parties taken just before their departure from [H] depicts a happy couple with arms around each other;
iv)The arrangements put in place right from the start of the parties living together for payment of monies which were utilised in the household;
v)That there was no rush in the applicant having her items shipped to Darwin from storage.
d)I find that from the moment the applicant moved into the respondent’s property in April 2008, that the parties began to think and plan as a couple with a committed future together as illustrated by the following:
i)The planning and taking several camping trips together that year, sometimes with the children;
ii)The applicant seeking employment;
iii)The merging, albeit in a restricted sense of their finances, including the contributions to the household expenses made by the applicant and the payment of the $70,000 to the respondent;
iv)The discussions about the purchase of a joint property;
v)The improvements to the respondent’s property by the putting in of a swimming pool, although it is disputed as to the extent of the applicant’s involvement;
vi)The work conducted by the applicant in her profession as a plumber at the respondent’s property;
vii)The purchase of a larger motor vehicle by the applicant.
Conclusion
I find that on the balance of probabilities the only conclusion that a reasonable person can reach is that it was the intention of both parties as from April 2008 to live together in a committed and loving relationship as a couple with a view to sharing a future together.
I find that this relationship is a de facto relationship in accordance with the definition and that the date of commencement was April 2008.
When did the de facto relationship end?
Whilst technically it could be argued that the required two year period exists as the relationship commenced in April 2008 and concluded on the respondent’s calculations in April 2010, I will for the purposes of the property negotiations make a finding as to when the relationship ended.
The history of the relationship between April 2010 and November 2010 must be looked at in detail:
a)On Anzac Day in 2010 friends attended with the parties at the respondent’s house for a get-together. Photos taken of the day depict family scenes of watching television and playing in the pool;
b)In May 2010 the applicant and the respondent travelled to Alice Springs to attend the funeral of the respondent’s brother who had committed suicide. The airfares were paid for by the applicant;
c)After the brother’s death the applicant assisted the respondent in receiving grief counselling through a local aboriginal community service;
d)Later in May 2010 the parties socialised with friends at the local pub;
e)In the dry season the parties met friends Ms B and Mr S at the [omitted] for lunch;
f)In August 2010 the applicant travelled alone to Melbourne to visit friends;
g)In October 2010 the parties holidayed together at [C];
h)In October 2010 there was a celebratory dinner which the applicant states was for their anniversary dinner as it marked three years since meeting in October 2007. Gifts were exchanged, a ring given by the applicant and a necklace given by the respondent;
i)In October 2010 the parties holidayed together in Bali;
j)On 6 November 2010 the respondent asked the applicant to leave and the applicant asked for a few weeks to organise herself;
k)In mid November the applicant’s mother came to visit the parties in Darwin at the request of the applicant to see if something could be sorted out between the parties;
l)On 25 November 2010 the applicant left the respondent’s house after a series of text messages by the respondent requesting her to leave.
The applicant submits that separation occurred when the respondent physically moved out of the respondent’s house in November 2010.
The respondent submits that the relationship had ended by April 2010 and that the parties were living under the one roof, albeit separated from April 2010 until the applicant left the house in November 2010.
Having considered all of the evidence, I cannot give weight to the respondent’s submission that separation under the one roof occurred in April 2010 for the following reasons:
a)The parties continued to be financially entwined with:
i)The applicant paying the power and water bills in January, April and July 2010;
ii)The applicant continuing to fund the landline at the house with it being disconnected after November 2010;
iii)The applicant continuing to pay for private health cover for the respondent and one of her children until November 2010.
b)The parties continued to socialise and holiday together, examples being:
i)The Anzac Day get-together;
ii)
The celebratory dinner, where the following day on
20 October 2010, the respondent sent the following text to the applicant “Thank u, lovely gift, lovely nite”;
iii)The [C] and Bali holidays. Leading up to the holidays the respondent sent to the applicant the following text messages depicting in contrast to her evidence, her excitement in going away with the applicant:
· 11 October 2010 - “I am in total holiday mode & can’t wait til bali & [C].”
· 21 October 2010 - “Yay. Leave was approved. Bring on Bali.”
· 27 October 2010 - “Talk about EXCITED!”
· 27 October 2010 – “Mite be home bit later as I want 2 get [work omitted] out th way B4 bali & so I can get way early 2moro as I will just be way too excited to b focussed lol.”
· 28 October 2010 – “We have a lift 2 airport this arvo. [name omitted] will take us. Don’t forget US $ pls.”
c)Although the respondent claims that she did not want the applicant to be around her following her brother’s death, the evidence shows continued support by the applicant to the respondent both financially and emotionally, such support being accepted by the respondent;
d)The texting records from the respondent to the applicant from April 2010 up until the messages asking the applicant to leave in November 2010 are not indicative of a separated couple living under the one roof, leading their own lives, as illustrated by the following snapshots:
i)17 May 2010 - “Thanks 4 lovely wkend. Love you lots xxx”
ii)5 June 2010 – “Thanks Babe. This has been a lot harder than i thought. Lookin forward to coming home. Love u.”
iii)13 June 2010 – “..c u in the morning. Love ya.”
iv)22 June 2010 – “…Hope you’re not missing me too much.”
v)24 June 2010 – “I apologise for not talking 2 u 2nite, its been a tough time. Pls [Ms Rathbone], know u have been in my thoughts & my love 2u.”
vi)8 July 2010 – “I will have dinnr under control. Love u”
vii)22 July 2010 – “Thanks 4 th encouraging words this morn.”
viii)26 July 2010 – “Its been ok, jus emotional. Yes call u bit later 2day ok.”
ix)27 July 2010 – “But have as nice nite darl & talk 2moro my baby.”
x)9 August 2010 – “aw thanks darl love u too..”
xi)12 August 2010 – “Probably wont speak 2 u 2nite, need 2 close myself off to th world just right now. Came home & have jus cried and cried. I hope u understand.”
xii)19 August 2010 – “do u want 2 grab some cc on the way home? Havent done dinner but thought maybe soup from th asian place. What do u think?”
xiii)1 September 2010 – “good morning, have urself a good day at work. See u at home later on this arvo. Byeeee.”
xiv)8 September 2010 – “Yes pls if u can do dinner.”
xv)27 September 2010 – “Here now,. Should b ok. Talk later darling.”
xvi)9 October 2010 – “[name omitted] driving me home in 10. So see you soon Darl.”
xvii)14 October 2010 – “I will organise dinner since u are working late. U will be tired 2nite then hey. Have a good day darl.”
xviii)15 October 2010 - “Hello lady love.”
xix)18 October 2010 – “Is it ok if I try get ur Dad’s present 2moro?”
xx)19 October 2010 – “Thanks for th lovely note! You are beautiful!”
e)In early November 2010 the applicant was conducting plumbing works on the respondent’s house;
f)The applicant’s mother flew to Darwin in November 2010 just prior to separation to provide support to the parties as the parties were discussing separation;
g)That upon the respondent requesting that the applicant leave the house, the applicant complied with the request in late November 2010;
h)That in December 2010 the applicant sought legal advice, resulting in a letter being sent to the respondent by the applicant’s legal representative;
i)The respondent made no attempt to return the full amount of $70,000, which on her account the respondent never used, until February 2011.
Conclusion
I do not doubt for one moment that the respondent was struggling emotionally from May 2010 with the death of her brother, a change in employment, her elder child moving to New Zealand and her thoughts of being closer to the family in Alice Springs.
I further accept that at this point also the respondent was questioning her future direction including her relationship with the applicant and that this may have been the subject of discussion with the applicant.
What I cannot accept however is that the respondent communicated to the applicant in or around May 2010 that the relationship was at an end and further that the applicant understood that the relationship had ended.
Whilst the respondent relies on the letter that the applicant wrote to her on the 21 June 2010 as indicative of the applicant’s refusal to accept that the relationship was over, I find, that a reasonable person, on the balance of probabilities, would find that letter as nothing more than a show of support by the applicant for the respondent during such a difficult time in her life, asking that “she not be pushed away”.
That same level of support and hope that things will improve was demonstrated in a letter written by the applicant to the respondent in September/October 2010.
I accept that the relationship was in trouble by then, and that by the end of October 2010 it was coming to an end, but that the de facto relationship had not yet ended.
Despite all the emotional confusion, the actions of the respondent give clear indications on many levels, such as the holidays, the texts, their day to day dependence and intertwined existence that the de facto relationship continued until November 2010 when the applicant at the request of the respondent left the house, which they had each called home since 2008.
I therefore find that the de facto relationship ended in November 2010.
Does the de facto relationship then fall within the jurisdiction of Part VIIIAB Family Law Act 1975?
A finding has been made that the relationship was a de facto relationship commencing in April 2008 and concluding in November 2010.
Conclusion
I find that the court has jurisdiction to determine a property division pursuant to Part VIIIAB Family Law Act 1975 as the de facto relationship lasted for more then two years which is the period of time required by section 90SB(a) Family Law Act 1975 before the court can make property orders.
If so, what is to be the future case management of this matter?
A conciliation conference has been ordered which hopefully will result in a resolution of this matter.
If not, the matter has been listed before me for mention in July with a view to listing the matter for hearing later this year.
Additional issues
The first issue raised by the respondent is that as the parties did not have a joint bank account then it is questionable that a de facto relationship existed.
Not every relationship whether married or de facto have joint bank accounts. Therefore in isolation it is not a consideration which is given weight and must be looked at in the context of the totality of the relationship.
I find as so many other factors support the existence of a de facto relationship between April 2008 and November 2010, that I need not give weight to this submission.
The second issue raised by the respondent is that as the sexual relationship waned to almost being non existent when the parties separated, that this factor is supportive of an earlier end to the relationship with the parties living under the one roof.
Again, whilst an indicative feature of a de facto relationship, the non existence of a sexual relationship does not automatically bring a relationship to an end.
I find as so many other factors support the existence of a de facto relationship up until November 2010, that I need not give weight to this submission.
The third issue is that there was a week during January 2009 when the parties were separated. As section 90SB(a) refers to “total of the periods….. of the relationship” and as discussed at length by Demack FM in Hamblin & Dahl [2010] FMCAfam 514, this enables the court to add together the period before the separation and the period after separation and if that period is for two years or more than the court has jurisdiction to hear the matter.
I find that the one week separation does impact on the length of this relationship as the aggregate period’s amount to more than two years.
The fourth issue raised by the respondent is that the respondent kept the relationship “going” out of fear that the applicant would have a “breakdown”. There was simply no evidence to support that such a breakdown was imminent and I give no weight to this submission.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of L.Turner FM
Date: 20 April 2012
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