Rubenstein and Hartnett
[2011] FMCAfam 876
•25 August 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RUBENSTEIN & HARTNETT | [2011] FMCAfam 876 |
| FAMILY LAW – Application for declaration of de facto relationship – short relationship – child of the relationship. |
| Family Law Act 1975, ss.4(1), 4AA, , 90SB, 90RB The Family Law Amendment (De Facto Financial Matters & Other Measures) Act2008 |
| Jonah & White [2011] FamCA 221 Smyth & Pappas [2011] FamCA 434 Barry & Dalrymple [2010] FamCA 1271 Jones v Dunkel (1959) 101 CLR 298 |
| Applicant: | MS RUBENSTEIN |
| Respondent: | MR HARTNETT |
| File Number: | MLC 8466 of 2009 |
| Judgment of: | Baker FM |
| Hearing dates: | 9, 10 and 11 May 2011 |
| Date of Last Submission: | 11 May 2011 |
| Delivered at: | Hobart |
| Delivered on: | 25 August 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Staindl |
| Solicitors for the Applicant: | Clancy & Triado |
| Counsel for the Respondent: | Ms O’Connell |
| Solicitors for the Respondent: | McKean Park Lawyers |
DECLARATION
It is declared that:
Pursuant to ss.90RD and 4AA of the Family Law Act1975 a de facto relationship existed between the applicant and the respondent from June 2009 to 30 August 2009.
ORDERS
That the matter be listed for directions on a date to be fixed.
IT IS NOTED that publication of this judgment under the pseudonym Rubenstein & Hartnett is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT HOBART |
MLC 8466 of 2009
| MS RUBENSTEIN |
Applicant
And
| MR HARTNETT |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties to these proceedings ask the Court to make a determination about whether or not they were in a de facto relationship within the meaning of the Family Law Act1975 (“the Act”) and if so, for what period or periods.
The applicant is Ms Rubenstein (“the applicant”), and the respondent is Mr Hartnett (“the respondent”).
The applicant filed an application for an alteration of property interests and for spouse maintenance orders. The parties agreed that the question of whether or not a de facto relationship existed between the parties should be determined as a preliminary matter.
The parties agreed that they were in a relationship (“the relationship”), although they disagreed about the nature of that relationship.
It was common ground that the relationship commenced on Christmas Eve 2006. Some time in mid July or August 2009 the applicant moved into the respondent’s home at Property [B], [B]. The exact date on which the applicant commenced living there was in dispute. The parties agreed that the applicant moved out of the home on 30 August 2009 when the relationship ended.
The applicant submitted that the parties were in a de facto relationship from Christmas Eve 2006 until 30 August 2009. She submitted that, because the parties have a child, one of the criteria of s.90SB has been met.
The respondent submitted that the relationship was a casual one with no degree of mutual commitment to a shared life and did not amount to a de facto relationship. The parties saw each other on an ad hoc, non regular basis when it suited them both. This did not change throughout the period of the relationship.
There was no dispute that the relationship broke down after 1 March 2009, which was the commencement date of the legislation. There was no dispute that the parties were resident in Victoria, which is a participating jurisdiction.
Background
The parties
The applicant was born [in] 1968 and is 43 years old. She is engaged in home duties.
The respondent was born [in] 1962 and is 48 years old. He is an [occupation omitted].
The parties have a child; [X] born [in] 2010 (“[X]”). [X] lives with the applicant. The respondent does not spend time with her.
On 9 December 2009 orders were made in the Family Court of Australia in relation to the applicant’s child-bearing expenses, and for spouse maintenance during the child-bearing period.
A parentage testing report was undertaken on 13 January 2011. That report confirmed that the respondent is [X]’s father.
The respondent has a child from a previous relationship; [Y] born [in] 2006 (“[Y]”).
The respondent and his ex-partner separated before the commencement of the relationship. During the relationship, the respondent was engaged in parenting proceedings with her regarding [Y].
Evidence
The following documents were relied upon by the applicant:
·Second Amended Initiating Application filed 11 February 2011,
·Affidavits of the applicant filed 24 September 2009, 4 November 2009, 20 May 2010 and 11 February 2011,
·Affidavit of Mr K (“Mr K”) filed 4 November 2009,
·Affidavit of Mr H (“Mr H”) filed 4 November 2009.
The applicant, Mr K and Mr H were cross-examined. The applicant tendered three DVDs which were played in Court.[1]
[1] Exhibit “A2”
The following documents were relied upon by the respondent:
·Affidavits of the respondent filed 6 October 2009, 9 December 2009, 3 June 2010, and 17 February 2011,
·Affidavit of Ms K (“Ms K”) filed 9 December 2009,
·Affidavit of Mr R (“Mr R”) filed 9 December 2009,
·Affidavit of Mr B (“Mr B”) filed 9 December 2009,
·Affidavit of Ms B (“Ms B”) filed 9 December 2009.
The respondent, Ms K, Mr R and Ms B were cross-examined. The affidavit of Mr B was relied upon, but he did not appear to give evidence and was not cross-examined.
Relevant Law
The Family Law Amendment (De Facto Financial Matters & Other Measures) Act2008 introduced the concept of “de facto financial cause” to the legislation, which is defined in s.4(1) of the Family Law Act1975 (“the Act”). The relevant sub-paragraph for property proceedings is sub-section (c). It reads as follows:
proceedings between parties to a de facto relationship with respect to the distribution, after the breakdown of the de facto relationship, of the property of the parties or either of them;…
The issue in this matter was whether or not the parties were in a “de facto relationship” within the meaning set out in s.4AA of the Act. Pursuant to that section, the Court may find that they were in a de facto relationship if, having regard to all the circumstances of the relationship, they had a relationship as a couple living together on a genuine domestic basis. It is not necessary for a particular finding to be made in relation to any of the circumstances set out in s.4AA(2) in making a determination.[2] The court can have regard to and attach such weight to any matter as seems appropriate in the circumstances of the case.[3]
[2] s.4AA(3)
[3] s.4AA(4)
Section 4AA of the Act provides:
(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.
The Court needs to determine whether one of the four criteria set out in s.90SB has been met. The relevant criterion in this matter was whether there was a child of the de facto relationship.
Section 90SB of the Act provides:
A court may make an order unders.90SE, s.90SG, or s.90SM, or a declaration under s.90SL, in relation to a de facto relationship only if the court is satisfied:
(a) that the period, or the total of the periods, of the de facto relationship is at least 2 years; or
(b) that there is a child of the de facto relationship; or
(c) that:
(i) the party to the de facto relationship who applies for the order or declaration made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c); and
(ii) a failure to make the order or declaration would result in serious injustice to the applicant; or
(d) that the relationship is or was registered under a prescribed law of a State or Territory.
Section 90RB of the Act provides that a child is a child of a de facto relationship if the child is the child of both of the parties to the de facto relationship.
In Jonah & White[4] Murphy J considered a number of authorities in State jurisdictions about what constitutes a de facto relationship, before he considered Part VIIIAB of the Act. His Honour said at paragraphs 59 and 60:
In that respect it seems to me also instructive that the Commonwealth legislature did not provide for relief of that type in circumstances where two people were parties to, for example, a “domestic relationship”, or, as in New South Wales, a “close personal relationship” but, rather, only where parties were in a “de facto relationship” as defined.
In my opinion, the key to that definition is the manifestation of a relationship where “the parties have so merged their lives that they were, for all practical purposes, ‘living together’ as a couple on a genuine domestic basis”. It is the manifestation of “coupledom”, which involves the merger of two lives as just described, that is the core of a de facto relationship as defined and to which each of the statutory factors (and others that might apply to a particular relationship) are directed.
His Honour continued at 66:
The issue, as it seems to me, is the nature of the union rather than how it manifests itself in quantities of joint time. It is the nature of the union – the merger of two individual lives into life as a couple – that lies at the heart of the statutory considerations and the non-exhaustive nature of them and, in turn, a finding that there is a “de facto relationship”.
[4] [2011] FamCA 221
Murphy J found in that case two people were not in a de facto relationship. They maintained separate lives, each living in his or her own residence, but came together regularly for periods of time during which they enjoyed a loving, sexual relationship. His Honour found that absent from the relationship was the “merger of two lives into one”, or “coupledom.”[5]
[5] Ibid at 67
In Smyth & Pappas,[6] Cronin J referred to Jonah & White[7] and also to the case of Barry & Dalrymple.[8] His Honour and that it is also conceivable that two people could live very individual lives as a couple preferring not to merge their existences.[9]
[6] [2011] FamCA 434
[7] Op Cit
[8] [2010] FamCA 1271
[9] Op Cit at 7
Cronin J further held that relationships appear in many forms, but that the legislature required the parties “have” a relationship “as a couple” living “together” on “a genuine domestic basis” for that relationship to constitute a de facto relationship.[10]
[10] Ibid at 6
These authorities confirm that each case is different and to be determined by the facts in each case. The court has a wide discretion. No particular finding in relation to any circumstance is necessary and the court can attach such weight to any matter as may seem appropriate.[11]
[11] Sections 4AA(3) and (4)
Circumstances of the relationship
Section 4AA(2) sets out the circumstances to which the court may have regard when determining whether persons are living together on a genuine domestic basis.
I now turn to the evidence regarding these circumstances.
Sections 4AA(2)(a) The duration of the relationship
There was no dispute that the relationship commenced on Christmas Eve 2006 and ended on 30 August 2009. What was in dispute was the extent and quality of the relationship.
Section 4AA(2)(b) The nature and extent of their common residence
Evidence of the applicant
The applicant alleged that there were three different phases of the relationship:
·The first period lasted from Christmas Eve 2006 until late 2008 or early 2009.
·
The second period lasted from late 2008 or early 2009 until
10 July 2009.
·The third period lasted from 10 July 2009 until separation on 30 August 2009.
The applicant said that during the first phase of the relationship, the parties saw each other regularly, usually once a week and on holidays and special occasions, and sometimes, more than that. During cross-examination, the applicant said that, in the early stages of the relationship, the respondent told her he was not good with the “boyfriend thing”. In spite of that, they “slipped” into a relationship. She denied that the respondent had told her that he did not want a serious relationship.
At the commencement of the relationship, the applicant lived in [F]. She had recently separated from her former de-facto partner. It had been a difficult separation; she had lost friends, and her former partner’s parents had become very hostile towards her. As a consequence, she wanted to preserve her independence and space. She was not interested in cohabiting with the respondent.
She said that at the commencement of the relationship, the respondent had also recently separated from a former partner. His son [Y] was 12 months old at the time, and the respondent wanted to provide him with stability.
During the second phase of the relationship, the parties spent more time together, often several times per week, as well as on weekends, holidays and special occasions. The applicant said that, on most occasions when she was with the respondent, they spent the night together; either at his place, or her place.
During the third phase of the relationship the applicant moved to live with the respondent at his house in [B].
During cross-examination, the applicant was not shaken from her assessment of the time the parties spent together. She said that they spent most of their time together during the week. She occasionally worked on the weekend. She regularly saw [Y]. She said that often they would spend either Saturday or Sunday together. Sometimes it would be the whole weekend, or for no more than a few hours on one day. For about a year it was every second weekend.
The respondent said that the applicant’s first visit to his [A] beach house was in December 2007. The applicant said that whilst she could not recall dates, that was the first time she had driven there herself. She had been there many times before that. She had DVD evidence of them at [A] in February 2007.
After the applicant became pregnant, she told the respondent that if he did not want the baby, he needed to tell her before the pregnancy became more advanced. He was unsure, but sent her a text message a few days later which said, “I like [Z] for a girl.”
The applicant said that they discussed their plans for the pregnancy following that message. The respondent asked her to move into his home at [B]. They discussed how she could continue working from home, and they talked about providing her with garden space. The respondent prepared a plot for her in his garden.
During cross-examination, the applicant reiterated that she never wanted to live with the respondent. She said that they both enjoyed having their creative time and doing their own things. She had always made it clear to the respondent that she did not want to leave her place. Even when she fell pregnant, she was reluctant to move in.
It was put to the applicant that she did not move in with the respondent because of their child and their relationship. She answered that she did not want to live with anybody, but agreed to live with the respondent because of their child, which changed the situation. She wanted what was best for their child and was moving to live with the respondent to start a family together.
She moved into the respondent’s home on 10 July 2009. Before she moved in she cleaned the house. After 10 July 2009 she stayed several nights at her house to finish packing, and the rest of the time she was at his house.
She agreed that on 6 July 2009 she told the respondent that she was being evicted from her rental property. She asked the respondent for $4,000.00 to pay her rent. She wanted to repay him but did not do so because at that stage she had a lot of bills. She agreed she told the respondent that she had unpaid fines. She could not remember whether she had told him that she had $10,000.00 worth of debt. She said that the respondent knew about her financial circumstances prior to 6 July.
Evidence of the Respondent
In his affidavits, the respondent admitted that the parties commenced a sexual relationship on Christmas Eve 2006. His evidence was that their relationship was “primarily sex based”, and that, following Christmas Eve 2006, they only saw one another on a casual basis, at times that suited them both.
The respondent denied that, early in the relationship, they saw each other regularly. He said they saw each other on an ad-hoc, irregular basis. He denied that they spent more time together in late 2008 or early 2009. He said the relationship was casual and they had separate social and work lives.
The respondent denied that he stayed overnight at the applicant’s home on most occasions. He said that, more often than not, he would not stay over; rather, he would leave at 12:30 a.m. or 1:00 a.m.
The respondent denied that the applicant stayed at his house or the beach house at [A] for any long period of time. He said her first trip to [A] was on 15 December 2007. The parties spent four or five other weekends at [A] during the relationship. It was put to him that the applicant had stayed at [A] for a period of six or seven days. He could not recall spending more that two nights at [A] with the applicant. When asked whether it could have been possible, he said, “Yes, [as] a once-off.”
During cross-examination, the respondent could not recall how often he had seen the applicant. He said that they had sexual intercourse on about half the occasions that they saw each other. He said they did other activities, such as going out for coffee, lunch, dinner or a drive. They attended a couple of parties together.
The respondent said that, he stayed at the applicant’s house on two or three occasions each month, and she stayed at his house on one or two occasions a month. They caught up once or twice a fortnight. On half the occasions he saw her, he stayed the night. When Counsel for the applicant suggested he therefore must have seen her eight times a month, the respondent answered that this did not seem to reflect what he felt had happened during the relationship. The respondent was asked why he said that, more often than not, he did not stay. He responded that it had varied from week to week, month to month and year to year. He agreed that he visited her at her home four to six times a month, and on more than half those occasions he did not stay.
The respondent offered that the applicant live with him because she had no money, and was in arrears of her rent. He said that he had no option but to help her because she had no other means of support. It was a matter of financial necessity.
The respondent said that the applicant met him at his [suburb omitted] factory on 6 July 2009. She was distressed, and told him that her real estate agent was evicting her from her rental property and taking her to court on 9 July 2009. She told him that she needed $4,000.00 cash to pay the agent. She was also distressed about the Tax Office chasing her, and about the sheriff pursuing her for unpaid fines. She was concerned about the loss of her licence and unpaid utility bills. She told him that she had approximately $10,000.00 worth of debt.
The respondent admitted that he gave the applicant considerable assistance when she was moving into his home. He made ten trips to help her move her belongings. He helped her clean up her place to ensure that she would get her bond back. He made a garden bed at his home for her for vegetables and other plants. He put shelves in her IKEA wardrobes, to hold all her kitchen equipment. He agreed that he tried to make the home welcoming for her. They did not discuss a limit on the length of time she would be living at his house.
The applicant was reluctant to leave her home in [F] and to move in with the respondent, despite her debt. She told him that she wanted to continue living in [F], and she asked him to pay the rent for that property on her behalf. He did not agree to do so. He helped her, as he had done with other friends; because she was pregnant, poor and had nowhere to live. He disputed that the arrangement was so that they could live as a couple. He agreed that his other friends did not move all their furniture and possessions into his house when they stayed with him.
In his most recent affidavit, the respondent said that the parties commenced living together in or about mid July 2009, when the applicant moved into his home at [B]. Later in that same affidavit, he said that she continued to live at her [F] home, whilst sorting and boxing up her belongings. She finally began staying at [B] around the week of 20 July 2009.[12]
[12] Affidavit of the respondent filed 17 February 2011
In another affidavit, the respondent said that the applicant moved into his home on 10 July 2009.[13] He said that after the applicant lived at his home for six weeks he determined that the relationship was over.[14]
[13] Affidavit of the respondent filed 6 October 2009, para 11
[14] Affidavit of the respondent filed 6 October 2009, para 22
The respondent said that he changed his evidence on this point after going through his text messages. The applicant sent him a text message on 27 July 2009 at 11:52 p.m. That message read, “Hi just finished work...if you’re not in bed give me a call x”. The respondent said that he could now say that she moved in much later than 10 July 2009.[15]
[15] Affidavit of the respondent filed 9 December 2010
In a later affidavit, the respondent again said that they commenced residing together in or about mid July 2009, when the applicant slowly moved into his home.[16]
[16] Affidavit of the respondent filed 2 June 2010
During cross-examination, the respondent said that his evidence in his affidavits – namely, that the applicant commenced living at his home on 10 July 2009 – was incorrect. He said that the applicant “commenced residing” with him in mid August 2009. By that, he meant that she was living at the house full-time from that point. His explanation for stating that the applicant lived in his home for six weeks was that it had been “a terminology.” He had actually meant that she took six weeks to move in. He denied that between 10 July 2009 and 29 August 2009 she spent most nights at his house. He said that she stayed there more often than she had before mid July 2009.
29 August 2009 Incident
This incident was not relevant in the determination of the relationship as a de facto relationship, but was relevant to the issue of credit. In her affidavit, the applicant said that on 29 August, when she went to the bedroom she found that all her bedclothes and some of her belongings strewn across the room. The respondent was aggressive towards her and told her that she had to leave, she had no rights and it was not her house. At one point he hit her on the arm. She then attempted to get into the bed and the respondent threw her out of the bed and across the room. She again tried to get into the bed but this time the respondent held her by ankle and wrist. She then hit him.
She stayed the night in [Y]’s room and was scared and worried all night and could barely sleep. The next morning she left after the respondent insisted that she leave. She said she was scared of the respondent and his irrational behaviour.
The respondent denied that he was aggressive. He denied throwing her out of the bed and across the room and denied holding her by the ankle or the wrist. He said that the applicant kicked him, jumped on him, spat on him and left the room. The respondent was not cross-examined about the incident.
During cross-examination the applicant said that the respondent threw her across the room twice. She said:
“I kept trying to get into the bed and work out what was going on. I got into the bed first and then he became abusive. I was in the bed and he threw me towards the window. He pushed me, threw me, hard to explain he was next to me. I was trying to lie down I was trying to get into bed.”
She denied that she kicked, jumped on and spat at the respondent. She insisted that she was terrified of him, although she insisted staying in the bed. She said that she did not know why the respondent was behaving in that way and was saying that she had no rights. She said that she was not thinking clearly as it all happened quickly.
She did not obtain an intervention order until 19 October 2009. She did not think it was necessary, until the respondent said he was going to destroy her belongings.
I do not accept the applicant’s version of this incident. She has exaggerated what occurred. It is probable that the parties argued and there was an altercation. However, it is improbable that the respondent could have thrown her across the room twice or even once when he was in the bed. I do not accept that the applicant was terrified of the respondent. She stayed overnight at the house and did not apply for an intervention order until October 2009.
The applicant left the house the following morning and did not return to live there. This was the end of the relationship.
Section 4AA(2)(c): Whether a sexual relationship existed
It was common ground that the parties commenced a sexual relationship on Christmas Eve 2006. This continued throughout the relationship.
The respondent said that the relationship was primarily sex based. He annexed a number of text messages in relation to sex.[17] The respondent referred to these messages as justification for his assertion that the relationship was a casual one. However, this selection of text messages did not assist me in assessing the nature of the relationship.
[17] Affidavit of the respondent filed 9 December 2009, para.3 and Annexure “AH1”
The applicant said that the relationship was monogamous. She said that they discussed this on many occasions, and that they both wanted it that way.
The respondent denied that the relationship was monogamous. He denied that the parties ever discussed whether or not the relationship was monogamous. He said that he always made it clear to the applicant that he did not want a serious relationship with her, or anyone else.
In support of his contention that the relationship was not monogamous, the respondent referred to an occasion on which the applicant told him that she had had sex on the bonnet of her car at the [omitted] Shopping Centre. He also referred to an occasion on which the applicant went away with her friend, Mr A for a weekend. He said he did not believe that the relationship between the applicant and Mr A had been platonic during that weekend. In his affidavit, the respondent said that he believed that the applicant had an intimate relationship with Mr A for the years 2005, 2006 and 2007.
Notwithstanding that evidence, during cross-examination, the respondent explained that he was not alleging that the applicant had had sex with Mr A; he merely assumed that they had. He did not allege that they had sex on the weekend in [D], and he did not allege that, at any time since 2006 to 2009, the applicant had a sexual relationship with Mr A.
The applicant denied that she had a sexual relationship with Mr A during the parties’ relationship. She had a relationship with him many years prior to the parties’ relationship. In 2008, Mr A married his girlfriend and moved with her to [omitted]. She went with him on a farewell holiday to [D] before he left. They stayed in a two-bedroom apartment, and slept in separate rooms. Their relationship was platonic.
The applicant said that her comment about having sex on the bonnet of the car was a sarcastic joke, made in the context of a discussion about marriage. She denied that there was any truth to the joke.
The respondent did not ask the applicant about the incident or check her bonnet for scratch marks. He did not become concerned about the need for protection during sex with the applicant. Nevertheless, he disputed that the applicant had been joking.
I do not consider that the applicant was serious when she made this comment. She was joking. I consider that their discussion about marriage was also not serious, given that such a joke was made by the applicant during the discussion.
Section 4AA(2)(d): Degree of financial dependence or interdependence and any arrangements for financial support
Throughout the relationship the parties kept their finances separate. They did not maintain joint bank accounts. They did not have joint investments.
The respondent accepted that the applicant purchased gifts for him and [Y] during the relationship. The respondent admitted that he purchased one dozen bottles of wine for the applicant.
After the applicant moved into the respondent’s house, the respondent gave her access to his Visa card.
The respondent also paid some of the applicant’s outstanding bills. He paid her outstanding rent amounting to $4,000.00 in July 2009. He admitted that in August 2009 he purchased maternity clothes for her, paid $195.00 for the obstetrician, paid $241.00 for an ultrasound, gave $500.00 cash to her and possibly paid for a psychologist in the sum of $1,030.00. He paid her car registration.
The applicant purchased groceries for the parties. She produced copies of her bank statements for the period 8 May 2009 to 9 September 2009.[18] She identified several transactions in her bank statements from 15 July 2009 until 19 August 2009, which she said were payments for groceries. Those transactions are marked with handwritten notes that read; “Food [Mr Hartnett]”.
[18] Annexure “SJR-4” to the affidavit of the applicant, filed 11 February 2011
The applicant’s evidence was that the parties regularly ate out at restaurants. They took it in turns to pay for each other, however, over time, the respondent paid more often for the applicant.
The respondent said that they dined out occasionally and that he paid on most occasions.
Section 4AA(2)(e): The ownership, use and acquisition of their property
The parties did not own any property jointly throughout the whole relationship.
Section 4AA(2)(f): The degree of mutual commitment to a shared life
The applicant outlined discussions that the parties had, and plans they made, when the applicant became pregnant about their future living arrangements.
The parties discussed renovating the respondent’s house. They discussed building a studio area on top of the garage and redecorating the lounge-room. The respondent asked the applicant to design decorative gardens outside the bathroom windows. They discussed installing storage space, including bookshelves to accommodate the applicant’s book collection. They talked about setting up a home with wireless network.
Before [X]’s birth, the parties began making the house ready for her. The applicant cleaned [Y]’s room, sorted his baby clothes and washed his stored bedding. The respondent cleared out the garage so that the parties could park both their cars inside. He unpacked baby furniture, including a pram.
The respondent admitted that the applicant did a lot of cleaning and sorting in his house prior to moving in. He admitted that he made room in the garage so that she had somewhere to store her belongings. He admitted that he converted her IKEA wardrobe into a kitchen pantry.
During cross-examination, the respondent said that, initially, he thought the applicant’s pregnancy was fantastic, and he told her that he liked [Z] as a girl’s name. They discussed hospitals, and the parties and [Y] went to [omitted] Hospital for a tour.
The respondent admitted that he was supportive of the pregnancy “in a limited sense” up until the applicant had an ultrasound when she was 12 and a half weeks pregnant. Following that ultrasound, he began to have doubts. The relationship began to deteriorate, and he said that he had no desire to bring a child into their dysfunctional family. They had a major argument at dinner after the ultrasound on around 20 August 2009. Of significance, he said that the state of their relationship did not bode well for the future.[19]
[19] Affidavit of the respondent filed 17 February 2011
The applicant said that she and the respondent discussed having children prior to her pregnancy. The respondent told her that he would love to have more children, in a perfect world. However, the situation with [Y]’s care arrangements and his ex-partner’s relocation to [N] made the situation too uncertain.
When the respondent was asked whether he had any discussions with the applicant about having children, he said there may have been general discussion. He could recall saying once that he was not interested in having more children. He agreed that he said that he was getting too old to have more children and that his future was too uncertain because of [Y]’s possible relocation to [N].
The applicant deposed that she and the respondent discussed relocating from Melbourne to [N] if the respondent’s ex-partner were allowed to relocate there with [Y]. The respondent denied that those discussions ever took place.
The applicant said that, after she became pregnant, she began using [materials omitted]. The respondent wanted to start an [omitted] business with her.. That business was to be called [T].
The respondent admitted that he had an idea for an [omitted] business, and that the name [T] was his idea. He and the applicant discussed the business and visited a shop, where the respondent purchased items. The business did not eventuate.
The applicant said that, throughout the relationship, the respondent helped her with her business ventures. She had a [omitted] business called [V]. The respondent helped her come up with that name, and design a website for the business.
The respondent said that he only had general discussions with the applicant about her business plans. He denied that he chose the name [V]. He said:
[V] was being set up in order to qualify for the NEIS program and the Applicant used the scheme’s external “mentors” for help. The Applicant engaged graphic designers to prepare a letterhead for her business and a firm or web designers for a complex and expensive website that did not eventuate…
During the applicant’s re-examination, four pages of notes in the respondent’s hand writing and two pages of different designs for logo of the business “[V]” were tendered.[20] During cross-examination the respondent agreed that he was wrong when he denied workshopping the name of the business.
[20] Exhibit “A1”
During cross-examination, the applicant said that she had access to some of the respondent’s computer accounts. For example, she had access to his Facebook account and a share trading account. Although she did not use the share trading account unless he was there with her. She used his computer to research for her business. She did not have her own internet access until sometime in 2007 or 2008. The respondent agreed that she had access to his Facebook account, but disputed that she used his computer to research her business.
The applicant said that, later in the relationship they spent a lot of time looking at properties on the internet and attending property inspections. They looked at properties at [suburbs omitted]. During cross-examination, she said that they visited properties at [suburbs omitted] in late 2008, early 2009. She said that the respondent discussed buying land on a regular basis. Over the whole period of the relationship, she said that they visited up to 20 properties.
The applicant said that she would usually cook meals for the respondent, [Y] and herself whenever they spent time at her house. Additionally, she would regularly take home-cooked food to the respondent’s house whenever she stayed there. She would leave food, such as soups, in his freezer.
The applicant kept suitable food for [Y] at her house. During cross-examination, she said that she also kept her fridge stocked with imported beer for the respondent.
The respondent said that they would occasionally eat meals at home. The applicant cooked approximately six meals for him when he spent time at her house. He accepted that she brought frozen food for him, on occasions. He conceded that she cooked at his house on occasions.
The respondent said that he helped the applicant by installing a dog-door in her house. He helped build a large blackboard in her kitchen and fixed broken furniture for her.
The respondent was involved in activities with the applicant’s friends. He helped build a balcony at Mr H’s farm.
Evidence regarding special occasions
The applicant listed numerous special occasions that she and the respondent had spent together. These occasions occurred between February 2007 and August 2009. The respondent had records of time spent together only on some dates. He disputed that he and the applicant had spent those dates together, on around five occasions. He also could not recall inspecting properties with the applicant in July 2009. He admitted that the applicant joined him when he went on drives to [suburbs omitted] to inspect properties there. He admitted having discussions with the applicant about his plans for wave pools and wind turbines.
The applicant annexed to her affidavit numerous photographs of her and the respondent together; at [A], and parties and other events.[21] Those photographs were taken between February 2007 and July 2009.
[21] Affidavit of the applicant filed 11 February 2011
The applicant said that they spent every Christmas Eve at the respondent’s house, watching the carols and singing. The applicant stayed overnight and then the respondent would spend time with his family. They spent Orthodox Easter Saturday night and Sunday morning together, and they had an Easter egg hunt in the morning for [Y].
The parties often spent birthdays together. The applicant said that in 2007, they celebrated her birthday at the respondent’s house. The applicant stayed at his house for three to four days. On the night of her birthday she cooked a meal, and Mr R and Mr B joined them. In 2008 they celebrated her birthday at her house. She had a 40th birthday party with friends. For her birthday in 2009 she stayed with the respondent for a week. They ate out and visited an art gallery, and then they went down to [A] with [Y]. The applicant made [Y]’s birthday cakes.
During cross-examination, the respondent conceded that it was possible that on the respondent’s birthday in [omitted] 2009 they went to a Japanese restaurant after seeing a film. He admitted that they went to the [omitted] restaurant on [date omitted] 2009, that they visited an art gallery and then went to [A] for 3 nights. He disagreed that they spent six or seven days together.
They visited a winery owned by an acquaintance of the respondent on the way to [A] with [Y], in June 2009, when he purchased one dozen bottles of wine for the applicant.
The applicant said that the parties spent Valentine’s Day together, apart from 2009. In 2007 the respondent came to her house and gave her a gift of eucalyptus blossoms. In 2008, he came to her house for dinner.
The respondent denied that he and the applicant ever spent Valentine’s Day together, or that they ever celebrated Valentine’s Day. He could not remember giving eucalyptus blossoms to the applicant.
The DVD’s played in Court showed footage of Easter egg hunts, time spent at [A], the applicant and respondent spending time at each other’s houses, their dogs and an Easter spent at the applicant’s house.
In his affidavit, the respondent denied that he had ever attended or been part of any celebration for orthodox Easter with the applicant. He denied that the applicant and [Y] ever had an Easter egg hunt. When the respondent saw the Easter egg hunt on one of the DVD’s, he admitted that the Easter egg hunt took place, but on a day other than Easter Sunday. He had not seen this footage before, as the DVD which the applicant had previously given him did not contain the Easter egg hunt.
The DVD footage showed the respondent saying “Happy Easter.” He explained that he must have been confused when he said that. He had no idea why he had said it, and suggested that he had mistakenly said “Happy Easter” when he meant “Happy christening.”
Evidence regarding the possibility of marriage
The applicant said that the parties discussed marriage sometime in June 2008, and went on a shopping trip for a ring. The applicant said the discussion occurred in bed after her 40th birthday party and the next morning when the joke was made about her having sex on the bonnet of her car. The applicant said that Mr K and Mr B were present during the discussion in the morning. Mr K did not corroborate that. The applicant was challenged about this evidence, but was unshaken.
The respondent denied that he and the applicant had ever discussed getting engaged. He denied that they went shopping for an engagement ring. He said that perhaps the applicant was getting confused by various emails that the parties had exchanged, in which the applicant had discussed her plan for their dogs to get engaged and have a party.
Section 4AA(2)(g): whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed relationship
The relationship was not registered under a prescribed law of a state.
Section 4AA(2)(h): The care and support of children
The applicant said that during the relationship, [Y] began to spend time with the respondent on every second weekend, and one night during the week. The applicant had a bedroom in her house that was outfitted as a child’s bedroom. Originally, the room had been intended for the applicant’s niece, but the applicant kept toys and books in that room for [Y] instead.
The applicant outlined some of the activities that the parties undertook with [Y]. They included visits to the respondent’s holiday home in [A], outings to the zoo, trips to bowling or to the aquatic centre, picnics and drives. The applicant said that the respondent occasionally asked her to look after [Y]. She gave the example of a time she took [Y] to the Aquatic Centre without the respondent. The applicant also said that she and [Y] went on outings without the respondent when they visited [A], including visiting the golf course. She baked cakes and treats for him and gave him gifts on a regular basis.
It was put to the applicant that she rarely stayed with the respondent when it was his weekend with [Y]. She denied this, but conceded that she occasionally worked Saturday nights. When it was put to the applicant that she rarely spent a whole weekend with the respondent, she said that the time they spent together varied. They did not necessarily spend the whole weekend together, and they did not necessarily see each other every weekend. She saw [Y] less at the beginning of the relationship. During the relationship the respondent began spending time with [Y] regularly, including every second weekend and for one night during the week. The applicant said she was often present when [Y] was with the respondent. They spent time together with him, and they usually spent the night at the respondent’s house. Towards the end of the relationship, she saw [Y] most of the time when he was in the respondent’s care. She also saw [Y] on Wednesdays regularly.
The parties took [Y] to places like the Melbourne Zoo, Collingwood Children’s Farm, Christmas Carols in Geelong, bowling, swimming at Melbourne Sports & Aquatic Centre and the beach, drives and picnics to Healesville, Castlemaine and her friend Mr H’s farm.
At [A] they would go to the river on paddleboats, to the beach or golf course. At Christmas, she helped [Y] make Christmas biscuits to give to his family. She made his birthday cakes. They would have Easter egg hunts. She gave [Y] gifts on a regular basis. They went on picnics or outings with the respondent. Their dogs would go on the trips.
The respondent admitted that they went to the zoo once, to Collingwood Children’s Farm once, to Christmas carols in December 2008, bowling once, to the Aquatic Centre once and to [B] beach once, to a picnic at Healesville once in 2007 and for a drive to Mr H’s farm once in June 2009. He said that he would always be present with [Y] for activities such as river paddle boats or the beach at [A]. He denied that [Y] ever slept in the same bed as them. He denied that [Y] bathed in the shower with them or in the bath with the applicant, except for shower after a beach swim together in 2009 and one bubble bath in August 2009. He denied that they ever shared a meal together as [Y] had his dinner at 5:30 p.m.
The respondent conceded that the applicant was regularly present when he had the care of [Y] on Wednesdays around the end of 2008 and early 2009. [Y] stayed overnight at the applicant’s house on 29 April 2009.
During cross-examination, the respondent admitted that the applicant took [Y] to [B] beach on a couple of occasions. He begrudgingly conceded that the applicant was thoughtful and considerate about [Y]. He accepted that the applicant would garden with [Y] for example, growing carrots with him. He admitted that one day she involved him in cooking. He agreed that she played games with him once.
During cross-examination the respondent said that the applicant “probably had a walk around the golf course” with [Y] at [A]. When it was put to him that, in his affidavit, he had said that the applicant and [Y] would go for walks around the golf course at [A], he said, “I don’t recall.” He then retracted that, and said that she did go for walks with [Y].
The parties’ child [X] was born after the relationship ended. Her care and support was therefore not relevant.
Section 4AA(2)(i): The reputation and public aspects of the relationship
The applicant said that she met the respondent’s friends, but they spent most of their time with her friends. The respondent went to the pub on Friday nights and met his friends there. She did not go, apart from three times. He spent more time with her friends. They spent a lot of time together without other people present.
The applicant said that the respondent was concerned that his ex-partner would use information about the parties’ relationship against him in parenting proceedings regarding [Y]. The applicant said:
Once I moved in, [the respondent] would walk [Y] back to [his ex-partner’s] house or wait for her outside the front door so that she could not see that I had moved in… [He] delayed telling his housemate, Mr B, about the pregnancy for some time and was annoyed when he found out about it when I inadvertently left the ultrasound photo on my desk.[22]
[22] Affidavit of the applicant, filed 11 February 2011 at 56
The respondent said that he was contesting a relocation application made by his ex-partner, who wanted to relocate to Queensland with [Y]. He said that the matter was finalised sometime in January 2010 with a report from a “family psychologist”[23].
[23] Affidavit – 6 October 2009
The respondent denied that he did not share information about the applicant or their relationship with his friends because he was concerned about how the information might get back to his former partner and affect the Court proceedings. He was not worried about how his former partner would use information against him. He admitted that, after the birth of [X], he sought to protect his privacy with the Child Support Agency. He said that the Agency intended to advise his former partner that her child support would be reduced on the basis that he had another child. He was concerned that the release of information to her could have an effect upon her and her relocation application and jeopardise his ongoing relationship with [Y].
The respondent’s denials that he was not concerned about the possibility of his former partner finding out about the relationship were not consistent with his evidence that he did not want her to know about [X]’s birth.
During cross-examination, the applicant agreed that the respondent never met her parents. She does not have a close relationship with her parents, and does not see them very often. The respondent had met her brother. She did not meet the respondent’s parents until later in the relationship.
During cross-examination, the applicant was challenged about the lack of evidence supporting the reputation and public aspects of the relationship. She agreed that the parties did not have an active social life, but said that was because she thought she was being respectful and understanding with regard to the respondent’s court case with his ex-partner.
The respondent had denied going out on social occasions with the applicant. During cross-examination, he agreed that they attended several parties together, went out to dinner and to films together. He denied going to social occasions with her at the intensity she described.
The respondent said that the relationship was ad-hoc and casual and it was not the case that the parties were in a relationship but lived apart. He said that they enjoyed different levels of social contact, and that they only saw each other from time to time, as it suited them.
The respondent asserted that the applicant received social security payments between February 2006 and December 2008. The applicant denied that, and said that she received Centrelink benefits from February 2006 until December 2007. She produced her bank statements from 10 July 2009 until 7 September 2009, which indicated that she did not receive benefits during the period when she lived with the respondent. She started her business “[V]” through the NEIS scheme. NEIS is a government initiative to encourage small businesses. She was paid a benefit during the first twelve months of the business.
There were no records of the parties being described as a partner or de facto spouse.
Applicant’s Corroborative evidence
Evidence of Mr H
Mr H is a friend of the applicant. He lived around the corner from her whilst she was living in [F]. They saw each other on an almost daily basis. During that time, he became acquainted with the respondent and [Y]. He first met the respondent in early 2007. He observed the relationship and saw the parties together on numerous occasions, both at her house and at functions. He had seen the respondent’s car parked at her house overnight on a regular basis. He visited them at the respondent’s beach house at [A]. They attended many of Mr H’s family social events between 2007 and 2009.
Mr H observed that the applicant and respondent appeared to build a loving and family-type relationship, and he considered them to be a committed couple.
During cross-examination, Mr H said that he had been to the respondent’s home on about three occasions, once before the applicant was living there and twice after she was living there. [Y] was present. They had dinner, the applicant cooked and [Y] was made to sit at the table.
On three or four occasions, he had been at the applicant’s house when the respondent was there. He saw [Y] stay once at the house. One year he and the applicant took [Y]’s birthday cake down to [A]. The applicant went in her car and stayed the night and he returned to Melbourne that day.
Evidence of Mr K
Mr K stayed at the applicant’s home during two periods, between March and April 2008, and then between June and October 2008, but not during August 2008. He observed that the parties were in regular contact and maintained a regular and committed relationship.
The respondent regularly stayed overnight at the applicant’s house. During cross-examination Mr K said that he saw the respondent at the applicant’s home on a minimum of 15 to 20 times. He met [Y] two or three times there.
Mr K could recall one occasion when the applicant and respondent had come back from [A]. He could recall that they made plans to go to [A] on two or three occasions.
Respondent’s Corroborative Evidence
Evidence of Mr B
The respondent’s Outline of Case indicated that the respondent relied on Mr B’s affidavit.
Mr B has been a friend of the respondent since 1999 and lived at his house since May 2008. During the time that he lived there, Mr B said that the parties would see each other maybe once a week or even less. He deposed that he was present at dinner in the respondent’s house when the applicant said she had a sexual encounter on the bonnet of her new car with an unnamed male at [omitted] Shopping Centre.
He deposed that he could recall the applicant telling him how she was being threatened with eviction from her rental property in [F], which was well before she discovered that she was pregnant.
Mr B said that the applicant moved into the respondent’s home in the middle of the year. During this period of time the respondent was very supportive of her, and her work. He tried to accommodate everything she wanted. For example, the garden was marked out and dug, extra pantry cupboards were installed, hooks for her things were put everywhere, the living room was reorganised for her desk and large computer, storage cupboards were reorganised and filled up and pot plants where placed everywhere inside and outside the house.
Mr B did not attend the hearing for cross-examination. He would have been able to give evidence about the date on which the applicant moved into the house and the frequency of time the applicant spent at the house during the relationship. There was no explanation why he did not attend. I infer that his evidence would not have assisted the respondent.[24]
[24] Jones v Dunkel (1959) 101 CLR 298
Evidence of Ms B
Ms B said that she has been close friends with the respondent for the last 16 years. She caught up with him at the local pub in [omitted]. She often visited him at his home. She has stayed at his beach house in [A] on many occasions. She never met the applicant. She was not aware that the respondent was in a relationship with her.
During cross-examination, Ms B agreed that the respondent was concerned about his position with his former partner and that he wanted to keep his private life private. She was asked whether it would surprise her that the respondent spent four nights per month with the applicant at her place and would see her four times apart from that. She answered that she would not be surprised. However, she said that, if he was in a committed relationship, she would have known.
Evidence of Ms K
Ms K has known the respondent for a period of 15 years. They socialised regularly. She had often stayed at his [A] beach house during Christmas breaks and on weekends over the years, although she had not stayed there for four or five years and the last time she visited was two years ago.
In 2004-2005, when Ms K was experiencing financial and emotional hardship, the respondent allowed her to stay in his home rent-free, until she was able to get back on her feet. She said that during their friendship, the respondent has mainly been in committed, long-term relationships and over that period of time, she has been well-acquainted with his girlfriends. They have always been included in his life, his home and his group of friends.
Ms K first met the applicant in mid August 2009 at the respondent’s home. That was the first time she had any knowledge of her.
She caught up with the respondent every couple of months. He never spoke to her about the applicant. She said that, because the respondent is very private, she did not know that he had a daughter with the applicant until January 2011. She assumed that he was concerned about his former partner knowing about his private life. She was not aware that the applicant lived in [B] with him. She was not aware that from Christmas Eve 2006 she was in a relationship with him.
Evidence of Mr R
Mr R is a friend of the respondent and has known him for a period of 10 years. They socialise regularly and he saw the respondent about once per fortnight. He has been to the respondent’s house eight to ten times since 2007.
He was aware that the respondent had a relationship with the applicant on a casual basis. He only heard the respondent talk about her briefly. He never socialised with her, and only met her on two occasions; once at the respondent’s home and once at [A].
Conclusion as to the evidence of corroborative witnesses
I found that all these witnesses were credible.
Mr H and Mr K corroborated the applicant’s evidence that the parties spent regular time together.
Ms K, Mr R and Ms B corroborated the respondent’s evidence that the parties did not socialise much with his friends.
Credit of the Parties
Each party asked me to make adverse findings of credit against the other. The parties disagreed about many material facts. I consider that it is necessary to make a finding of credit.
At times the applicant was emotional. In my view, she exaggerated her evidence in respect of the alleged assault on 29 August 2009 and I did not accept her version of what occurred. Nevertheless, her evidence about the relationship was generally consistent. She was not shaken during an extensive cross-examination.
The respondent, on the other hand, contradicted his evidence on several occasions. His recollection of details of the relationship was not clear. I consider that he tried to diminish the time the parties spent together and the extent of the relationship. He changed his evidence about the commencement date of the applicant moving to live with him. He said that the applicant began living with him on 10 July. Later, he said that she began living with him on 20 July. Finally, he said that she began living with him from mid August 2009. In her closing address, Counsel for the respondent submitted that the applicant started living there in early August 2009. The respondent’s explanation for deposing in his affidavits that she was “living there for six weeks” – namely, that the phrase was “a terminology” – was unconvincing. I accept the submission of Counsel for the applicant that the respondent was unconcerned about retracting evidence and was “cavalier” in his attitude.
When the footage contained on the DVD contradicted the respondent’s earlier evidence, he refused to concede that he had been wrong, rather he had been confused.
In his affidavit, the respondent denied workshopping the name of the applicant’s business. After the applicant tendered four pages of notes in the respondent’s writing and two pages of different designs for the business “[V],” the respondent agreed that he was wrong. He admitted that he had workshopped the name of the business with the applicant.
I found his attitude towards the respondent was dismissive. For example, on three occasions when he put money into the applicant’s bank account he described her as “gold digger” on her statement. He agreed that he believed that, in the terms of the proceedings, she has acted as a “gold digger”.
When the respondent was asked if the applicant used to play with [Y], he said that they played games on one occasion. When it was put to him that she played with [Y] on a jumping castle, he said that the castle broke early in the relationship. When it was put to him that the applicant was generous and regularly gave gifts to [Y], he said that she was over generous. When it was put to him that the applicant made candles at Easter for him and [Y], he answered that she made up bundles to sell to the Greek community, so he probably did receive some, given the “multitude” she made. He reluctantly conceded that she was kind and considerate to [Y].
I find that the applicant’s evidence was to be preferred to that of the respondent where it conflicted, unless I indicated otherwise. It is my view that the respondent had a tendency to change his evidence to suit his case.
Conclusion
The parties had a relationship between Christmas Eve 2006 and 30 August 2009. The relationship began as a casual one. I accept the applicant’s evidence that, over time, the parties spent more time together. I also accept the respondent’s evidence that they saw each other when it suited them both, and that there was no set routine. They spent regular time together at each other’s homes, on outings and celebrating special occasions.
I am of the view that the applicant considered the relationship to be more serious than the respondent did. She took many photographs and DVDs of the parties.
The parties had a sexual relationship during the whole period of their relationship. I consider that it was a monogamous relationship
During the whole period of the relationship, the parties did not acquire or own property together. At times they discussed the applicant’s business activities. They discussed starting a business, which did not eventuate. They were financially independent until around 10 July 2009.
The parties had a degree of mutual commitment. They spent regular time together and on special occasions and communicated frequently. They were united in a desire to raise a child together from around the end of June 2009 until around 20 August 2009.
During the whole period of the relationship, the majority of their time was spent alone together, or in the company of the applicant’s friends. The respondent’s friends did not know the applicant, or did not know her well. I accept the applicant’s evidence that the respondent did not want his former partner to know about the relationship. He was involved in court proceedings with her about [Y], and he was not certain about his future and where he would be living.
Throughout the relationship, the applicant did not spend time with the respondent’s family, apart from [Y]. The applicant had a good relationship with [Y]. She gave him gifts and did fun activities with him. She was fond of him and cared for him on occasions. She did not meet the respondent’s parents until late in the relationship. The respondent did not meet the applicant’s parents. The respondent did not spend Christmas Days with the applicant and his family. He did not spend holiday time in January at [A] with the applicant, apart from several nights. He did not spend Easter, other than Orthodox Easter, with the applicant.
The first period of the relationship was identified by the applicant to continue from Christmas Eve 2006 until late 2008 or early 2009. During this period, the parties spent time together, on average, around once each week and on special occasions. They stayed overnight together at either party’s residence, or occasionally at the respondent’s beach house. They each had separate households and were financially independent.
I accept the applicant’s evidence that, during this period of the relationship, an engagement was discussed and the parties looked for a ring on one occasion. However, I do not accept that the discussion was serious, and I do not place any weight on it.
In my view, the evidence does not support the submission that the parties’ relationship amounted to a de facto relationship during this period.
The applicant identified a second phase of the relationship, which began in late 2008 or early 2009. She submitted that, from that point onward, the time that the parties spent together increased. It was the applicant’s case that, if I did not find that the parties were in a de facto relationship during the first period, a de facto relationship commenced from this point.
I find that, during this period, the parties spent more time together on around eight occasions each month, and that they stayed overnight together at either party’s residence, on around two nights each week. They continued to maintain separate households and to be financially independent.
Whilst they spent more time together during this period than the previous periods, I am not persuaded that their two lives merged into one[25] and that their relationship amounted to a de facto relationship, until the end of June 2009. I do not consider that an increase in time spent together changed the nature of the relationship.
[25] Jonah & White, Op Cit
I am of the view that the nature of the relationship changed and amounted to a de facto relationship from around the end of June 2009, after the applicant became pregnant and the parties started planning for her to move into the respondent’s house. The parties had wanted to maintain their independence, but the pregnancy changed that. The respondent was initially supportive of the pregnancy and indicated that he liked the name [Z]. They did a tour of the hospital with [Y]. They went to the obstetrician and to two ultrasounds together. The respondent paid some of the applicant’s expenses.
The parties commenced living together in the respondent’s home on
10 July. 2009. A great deal of effort was made to move the applicant and her possessions into the respondent’s home and to accommodate her wishes. The respondent spent time preparing a garden, sorting out cupboards and transporting a large number of pots and other furniture. The evidence indicated that the parties were planning a permanent arrangement. A garden had been made to plant vegetables. I consider that they were living together as a couple on a genuine domestic basis.
I place weight on the fact that the respondent said that their relationship problems, which began shortly after they commenced cohabitation, did not bode well for the future. They had an argument on 20 August 2009. After the incident on 29 August 2009, the applicant left the respondent’s house and the relationship ended.
Having regard to all the circumstances of the relationship, I consider that the relationship amounted to a de facto relationship from June 2009 until 30 August 2009.
I certify that the preceding one hundred and ninety-two (192) paragraphs are a true copy of the reasons for judgment of Baker FM
Date: 25 August 2011
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