RUSSELL & ROVANIO
[2013] FamCA 1047
•6 November 2013
FAMILY COURT OF AUSTRALIA
| RUSSELL & ROVANIO | [2013] FamCA 1047 |
| FAMILY LAW – DECLARATION – De facto relationship – No dispute as to the existence of a relationship but rather when it ended – Respondent’s evidence rejected – Declaration made. |
| Family Law Act 1975 (Cth) |
| Jonah v White [2012] FamCAFC 200 Moby & Schulter [2010] FLC 93-447 Neat Holdings Pty Ltd & Karajan Holdings Pty Ltd [1992] HCA 66 Ricky & Jones [2011] FamCAFC 222 Smyth & Pappas [2011] FamCA 434 Vaughan & Beal [2011] FamCA 436 Volin & Backstrum [2013] FamCA 40 |
| APPLICANT: | Mr Russell |
| RESPONDENT: | Mr Rovanio |
| FILE NUMBER: | MLC | 5402 | of | 2012 |
| DATE DELIVERED: | 6 November 2013 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 6 November 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Mellas |
| SOLICITOR FOR THE APPLICANT: | Joseph Guss, Lawyer |
| THE RESPONDENT: | In Person |
Orders
That the Court declares that the parties were in a de facto relationship from 2001 until it ended in September 2011.
All interim applications are otherwise dismissed save as to costs.
The application for final orders and the response thereto are referred to the next judicial docket allocation for the matter to be listed for a first day hearing before a judge.
The Court certifies that it was appropriate and reasonable in the circumstances to brief counsel.
Any application for costs by any party arising out of these interim proceedings and orders shall be by written submission filed by no later than 4 pm on 20 November 2013 and served accordingly with the original submission endorsed that it has been so served and any party receiving such submission shall have until 4 pm on 27 November 2013 to respond similarly endorsed as to service and any judgment shall be delivered from chambers.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Russell & Rovanio has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 5402 of 2012
| Mr Russell |
Applicant
And
| Mr Rovanio |
Respondent
REASONS FOR JUDGMENT
By an application filed on 18 June 2012, Mr Russell, the applicant, sought an order for the alternation of property interests, specifically those of or with Mr Rovanio, who is the respondent. The application was brought under section 90SM of the Family Law Act 1975. Subject to certain conditions, that provision empowers the court to make such order as it considers appropriate after the break down of a de facto relationship. For the Court to be able to exercise that power, the jurisdiction has to be shown to exist. Here, it is disputed.
Section 39A of the Act provides that a de facto financial cause may be instituted under the Act. The criteria for the exercise of this Court’s jurisdiction in this case were not disputed, save for one issue. In his application, the applicant pleaded that the de facto relationship ended in March 2012. The form used in the initiating application refers to the “date of final separation” but the clause relating to jurisdiction asks whether or not the de facto relationship broke down on or after 1 March 2009. In his response filed 13 August 2012, the respondent pleaded that the break down occurred before 1 March 2009. He sought that the application for property alteration orders be dismissed but he went further, as did the applicant.
By his amended application filed 6 February 2013, the applicant sought orders under section 90RD of the Act that the parties lived in a de facto relationship during the period from 2001 to September 2011.
The respondent’s response filed 13 August 2012 sought a declaration that a de facto relationship existed from 2001 to 26 December 2008. Thus, it was not contentious that there had been a de facto relationship, but rather the dispute was about when it ended. Was it December 2008 or September 2011. For the reasons that follow, I accept the evidence of the applicant and reject that of the respondent and find accordingly, that a declaration should be made that the de facto relationship ended in September 2011.
The applicant was represented by counsel and his documents were prepared for him by a lawyer. The respondent was not represented by a lawyer and appeared on his own behalf. That said, his documents were prepared by lawyers.
The respondent applied for an adjournment just after his cross-examination of the applicant began. That application was refused for reasons given at the time. I will not repeat them here.
The respondent is an articulate man who described himself as a director. His reason for seeking the adjournment was that he was going to get a lawyer “next time”. He had been to Court a number of times, told me that he had had legal advice and understood the process. He had also attended the preliminary hearing where he was warned about getting advice. In respect of his understanding of the process, I have no doubt that he understood the preliminary jurisdiction issue from the things that he said. I advised him of the process and as best can be, I fulfilled the obligations to assist litigants in person. The applicant relied upon an affidavit by himself and two other witnesses, Mr B and Mr C. In respect of those witnesses, their affidavits were filed on 1 February 2013.
The respondent had ample time to contemplate their evidence. Despite the absence of notice of their attendance, both made themselves available for cross-examination.
The respondent relied upon an affidavit by himself and contrary to the rules of Court, incorporated into his affidavit evidence of other affidavits filed 13 August 2012 and 1 December 2012. Those various affidavits were filed electronically and without the annexures but to the extent that those additional documents were relevant, I was shown the pieces that mattered.
The respondent also relied upon affidavits by D and Mr E, both of which were electronically filed on 3 December 2012. Neither was available for cross-examination.
Counsel for the applicant did not object to the evidence of D but in respect of the other, agreed I could give the evidence such weight as I considered appropriate.
As primary witnesses, the parties were an interesting contrast. The applicant was well prepared, responsive and a very accurate historian. His evidence about personal things was challenged and I accept he gave forthright answers. I have no doubt about his honesty. The respondent was obviously not as well prepared and was evasive in his answers. He obfuscated, for example, about the meanings of text messages and was disingenuous in accusing the witness, Mr C, of “possibly” fabricating an email that was inconsistent with his case. He did not cross-examine Mr C about this assertion but preferred to skirt around it by suggesting it was possible that his email password had been abused.
There were other examples, such as in relation to payments made to or on behalf of the applicant where he shrugged his shoulders and indicated that he left the allocation of that expenditure to his accountant. He had ample time to refute the applicant’s evidence through that accountant but did not do so. He was insistent upon focusing upon the sexual side of the relationship, rather than on what I explained to him was the indicia set out in the Act.
Whenever there is a conflict in the evidence, I prefer the applicant’s version.
The position remains that if an allegation, particularly going to jurisdiction, is made, the onus of proving that assertion lies with the person who makes it. The standard of proof is the balance of probabilities. I explained that to the respondent.
There is no need for me to traverse the background because the respondent conceded there had been a de facto relationship but it is important to focus on the nature and attributes of the relationship to assess when it ended. In my view, the critical question is when it finally ended.
Here, the applicant is 50 years of age and a director by occupation. The respondent is 33 years of age and is also a director. The parties lived together from 2001 until the applicant left the home they jointly own, in 2012.
The issue of the ownership is contentious but the only relevant matters are that it was purchased together as a couple and there remains an unresolved agreement between the parties. That agreement was not raised, entered into or concluded, based on the relationship coming to an end.
I turn then to the approach that should be taken to this determination. I have already referred to section 90RD. Here, the applicant seeks a declaration to enable him to pursue his application under section 90SM. The specific issue is when the de facto relationship ended. The focus is on the legislative provision that requires the court to decide, having regard to all of the circumstances of the relationship, whether it was a relationship as a couple living together on a genuine domestic basis.
The legislature provided the following words insofar as they are relevant to this case to assist:
Working out if persons have a relationship as a couple. 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)The reputation and public aspects of the relationship.
It is important to observe that in civil litigation, the onus of proof lies with the person asserting the claim or in this case, the jurisdiction. (See, for example, Neat Holdings Pty Ltd & Karajan Holdings Pty Ltd [1992] HCA 66). The legislative provision goes on to say two important things that are relevant here. First, no particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship. Secondly, 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.
In this case also, the cross-examination of the applicant by the respondent evinced a clear picture that the respondent was asserting that after December 2008 the relationship was finished because he had numerous other sexual encounters. To the extent that that is relevant at all, it can only go to the question of the commitment to the coupledom by one party. The legislation makes clear that parties to a de facto relationship can also be in another relationship at the same time.
The question of examining the circumstances of the nature and extent of the relationship by the same approach as one might view a marriage, has been answered definitively. In Moby & Schulter [2010] FLC 93-447, Mushin J said it was inappropriate to try to draw parallels between marriage and a de facto relationship as contemplated by the legislation. Marriage was celebrated in accordance with a formal process prescribed by legislation and was proved by a certificate issued pursuant to that legislation. His Honour observed that registration of a de facto relationship was possible under state law but it was not a necessity to give this Court jurisdiction and power. Somewhat topically, his Honour observed that under the Marriage Act, a marriage can only be between a man and a woman. This provision in the legislation however, includes a de facto relationship between two people of the same sex. It is a criminal offence for a person to be a party to two marriages simultaneously. The present legislation enables a person to be in two de facto relationships or one or more de facto relationships and a marriage simultaneously. His Honour also observed that whilst the present legislation included the reference to the degree of mutual commitment to a shared life as one of the relevant circumstances, there was no requirement that there be such a commitment in order for a de facto relationship to exist.
In Ricky & Jones [2011] FamCAFC 222, the Full Court referred with approval to Moby & Schulter. In Vaughan & Beal [2011] FamCA 436, I agreed with Mushin J, as did O’Reilly in Volin & Backstrum [2013] FamCA 40.
In Smyth & Pappas [2011] FamCA 434, I observed that the legislature provided that in relation to the existence of a de facto relationship, the Court was entitled to have regard to such matters and to attach such weight to any matter as may seem appropriate in the circumstances of the case. The list of factors described earlier cannot therefore be seen as exhaustive. None of the matters referred to in the section has precedence over any other, nor must all necessarily be found to exist before a finding of a de facto relationship is made.
The Full Court in Jonah v White [2012] FamCAFC 200 observed that none of the legislative factors took precedence over others. In that case Murphy J was the trial judge and his Honour, in examining the issue of the parties living together on a genuine domestic basis said that his focus was on the merger of two individual lives into life as a couple. The Full Court analysed the approach taken by his Honour and said that they were not persuaded that it was erroneous. It was said that the definition may be fulfilled where parties have lived together for limited periods, provided that other indicia or the circumstances of the matter, enabled a finding that they were living together on a genuine domestic basis.
It is perhaps unusual but helpful here, to look what the supporting witnesses of the parties each said and its relevance to the determination, before I look at the main parties.
Mr B is a friend of the applicant. He stayed with the couple in 2004. Thus he was aware of the nature of their relationship during the uncontroversial period. He lived in Sydney in 2009 and came to Melbourne on 12 and 13 November 2010. He was accompanied by his partner. His description of what he observed indicated to him that the de facto relationship was extant. He went out socially with the respondent on the Saturday night and said that the applicant did not go because he was going to Adelaide the following day.
In his affidavit, the respondent said that Mr B stayed in the applicant’s bedroom because the applicant had to go to Adelaide. The applicant was obviously there. The respondent cross-examined Mr B and it was clear that he was suggesting the witness did not observe that he and the applicant were in the same bed. He did not suggest the applicant was not there. Mr B said he slept in the spare room. That was not seriously challenged by the respondent. That did not leave much room for the respondent if I accept that the third bedroom was occupied by plants as asserted by the applicant. All of that does not matter because Mr B said he observed all of the indicia of the relationship that he had previously known and which has been admitted by the respondent in relation to the period after 2004.I accept Mr B’s evidence.
Mr C is also a friend of the applicant and had been an employee of the respondent’s company’s business. He is also a director and his interest was in information technology. Mr C gave evidence of receiving the email earlier mentioned in June 2011. It referred to the applicant as the respondent’s life partner of ten years. The obvious inference is that the relationship was extant in 2011 when the email was sent. The respondent’s cross-examination showed that he not only disputed that he sent the email, but he said it was a forgery. He endeavoured to explain, through Mr C, that the person who sent it could have had access to his computer. He said it was not difficult to fake the source of an email and Mr C did not disagree. However, Mr C said it was surprising that it would be suggested to be a forgery because it was typical of the emails sent by the respondent at that particular time. He observed that it was not just sent to him.
Nothing about Mr C’s evidence indicated that he was partisan or had conspired to concoct his story and I accept his evidence as plausible.
D filed an affidavit on 3 December 2012. D is apparently the only name used by the deponent for cultural purposes. He lives in New South Wales. He was not available for cross-examination. His evidence was limited to confirming the relationship when he met the applicant in 2004. D met the respondent in 2009 in Sydney, where he said the relationship with the applicant had ended. This conversation was said to have occurred in early 2009. As the evidence did not indicate temporally when the relationship ended, it was of no value.
Mr E filed an affidavit on the respondent’s behalf on 3 December 2012. He had known the respondent for just over two years. Thus, he must have met him some time around late 2010. At the time of meeting the respondent, this witness said he was introduced to the applicant as the “ex-boyfriend”. In his affidavit, the applicant described that conversation as fabricated. It being a fact in issue and absent presentation of the witness for cross-examination, I cannot give it any weight.
I turn then to the two primary witnesses, remembering that the onus of proof lies with the applicant. The applicant said that he and the respondent had sexual relations after December 2008. Indeed, he alleged they continued up until early 2011. This led the respondent to cross-examine the applicant about sexually transmitted infections. There seemed to be common ground between the parties that the respondent had an infection.
The respondent put it to the applicant that this would have precluded intimacy. The peculiar issue was that even if no intimacy occurred and they were not in a de facto relationship, why would this discussion have taken place after 2008. It appears it did, because the applicant indicated two things: first, he and the respondent did research together about sexually transmitted infections. Secondly, the respondent had been to a doctor. It was the applicant’s evidence that if sores were not present, no symptoms were evident and as such no risk was taken. That was a convincing piece of evidence, taking into account the respondent’s evidence-in-chief that the sexual relationship ceased in March 2008. Because he was unrepresented, I told the respondent he could ask about specifics of dates, because they were not alleged precisely by the applicant. I pointed out that if he did so he may strengthen the applicant’s credibility. The respondent chose not to put any such questions. I find there was a sexual intimacy in 2011.
The more important question was the nature of their relationship. The parties acquired a home together. There is little doubt that the respondent made the major financial contributions, including towards the mortgage. That is not in itself unusual, because as the respondent acknowledged, the applicant did the cooking and the cleaning. The expenses of acquiring the produce for the cooking and the cleaning seemed largely to have been borne by the respondent, but the applicant had access to the banking facility to enable those acquisitions.
Whilst that could have happened to flatmates too, this relationship was different to that. Not only were there substantial electronic communications between them about the timing of their various movements, some of the messages contained statements or notations of endearment. The respondent disputed they were such, but rather that he normally conducted himself in that way. I do not believe him. There were too many such exchanges for this to be that way. No other evidence indicated that was his usual conduct.
The applicant became involved in financial troubles leading to his own bankruptcy. This apparently led to a restructuring of the business arrangements. The applicant explained that he ensured that the respondent benefited by a large increase in his salary.
On the subject of the restructuring there was some dispute. It occurred around 2008. The respondent said he and a then business partner acquired the intellectual property of the applicant’s business for $100,000 and this money included buying the hard drive on computer equipment which contained all of the clients. The applicant said that was not so, but although the computer equipment was bought, $100,000 was used for working capital. The respondent said he did not understand the accountancy side of things. When I suggested the balance sheet for 2008 be produced it was electronically. A large loan account of $97,000 was shown for 30 June 2008, but also some plant and equipment of about $67,000. Whilst neither of those figures helped clarify the issue, it would seem that the relationship in 2008 and at least shortly thereafter, was more than just a business one.
Despite the respondent saying that he was not aware of the bankruptcy, I find the parties wanted to benefit each other by avoiding the problems associated with the applicant’s bankruptcy. That became evident from the respondent’s evidence of paying the loan on behalf of the applicant.
Other indicia of the existence of their relationship can also be seen in the uncontroversial evidence that they went out for meals at restaurants well after 2008 and the respondent always paid. The respondent gave a curious explanation that this was somehow connected with fringe benefits tax. If so, it may have created problems for the applicant in respect of the maximum he could earn during his bankruptcy.
The bankruptcy was said to have occurred in March 2009. Why then, if separated, would the respondent be so generous if the parties were not a couple. It was noticeable that the respondent called no accounting evidence. Again, I acknowledge that housemates go out for meals together, but I find it hard to accept that it always would be at the expense of one of them.
In addition, the respondent paid legal expenses for the applicant’s bankruptcy dispute. The arrangements of the respondent have all of the hallmarks of a relationship of a couple. In giving evidence, the applicant was cross-examined about his allegation of the respondent’s drug use. The respondent seemed offended by the suggestion but I inferred the evidence was led to show the existence of the de facto relationship on the basis that the applicant cared for the welfare of the respondent. The respondent ploughed on and the applicant volunteered examples of his concern for the respondent in relation to drug use. The respondent looked frustrated but did not seek clarification from the applicant as to when these incidents were said to have occurred. I have presumed that they occurred after 2008.
The applicant said that he had concerns about the relationship when the respondent resorted to violence. The applicant’s evidence, which was not challenged by the respondent, was that arguments arose about a variety of business and personal things. They led to physical violence. The applicant gave two examples which the respondent seemed to scoff at, but each had a ring of truth about them. In one example the applicant said the respondent hit him, causing a black eye. Mr C referred in cross-examination to such an incident, in which he said the applicant had previously explained the black eye differently. The respondent seemed confused by Mr C’s evidence, but it was clear he was saying he had heard the applicant talk about what had happened after the event. I have no reason to doubt Mr C’s evidence.
The respondent put to the applicant that after 2008, he had 10 sexual partners. This was presumably put to suggest that there was no commitment on the part of the respondent but the applicant’s response was that he found out about it later and it hurt him. That had a ring of reality about it. When challenging the applicant about the sleeping arrangements, the respondent put to him that they had separate rooms. Leaving aside the evidence of Mr B, the applicant said they shared a bed until the second half of 2011. The respondent simply denied that in his affidavit in reply, saying that the bed sharing ceased in 2008. He referred to his August 2012 affidavit but in that, he simply said that he and the applicant ceased having sexual relations together.
The applicant referred to the bedrooms and beds and the respondent did not challenge him. Nothing more was said. I accept the applicant’s evidence about the sleeping arrangement, which were that they shared a bed in the bedroom until 2011.
The applicant gave evidence that the respondent bought him a BMW. The respondent was quick to point out that the company bought it. He conceded they bought two about the same time. Even if the company did buy them, the respondent was the alter ego of the company. It does not make sense to do that if the applicant was bankrupt and not in a relationship. I do not accept it was simply an employment issue.
The communication between the parties has been mentioned but three struck me as telling. First, in relation to buying air conditioning for the house, the respondent referred to it as “our house”. The second issue related to a restaurant invitation to which the respondent replied that he and the applicant could not attend because they were in Sydney. The third incident, in relation to a work employee dispute, was an email in which the applicant was referred to as the “live-in” partner. Rather than denying that he so corresponded, the respondent said that he had sent it but could not think of the word “maid” at that time. All of that led the applicant to point to instructions written to a barrister who appeared for or gave advice to, the company, on an employment dispute. The document refers to “the author” and to the applicant separately. The respondent denied preparing it or instructing counsel. At one point he said that a solicitor may have drawn it or even counsel himself. He thought the applicant may have sent it. This was implausible, bearing in mind neither the solicitor nor counsel could have, in the context of what was written, been the author. I find the communications all indicate that the applicant and the respondent were acting together and not just as house mates or business associates.
The sign of affection could be seen in the signing off of an email. The respondent’s explanation was that he did not want to be rude. I do not believe him.
Taking all of those matters into account and the fact that on most issues I accept the evidence of the applicant and his witnesses, I find that having regard to all the circumstances of the relationship, the applicant and the respondent had a relationship as a couple, living together on a genuine domestic basis well after December 2008.
Whilst it is not necessary for the Court to make specific findings about the matters set out in the list of factors indicating the existence of such a de facto relationship, it is helpful in this case to look at those for the purposes of defining when the relationship actually came to an end if, as I have found, it was not in December 2008.
In my view the applicant’s evidence, supported by Mr C and Mr B, is much more acceptable on the balance of probability than the respondent and his witnesses. To assist, however, it is helpful to look at the difference between the acknowledged period prior to 2008 and thereafter to determine the date of the ending. This was a long relationship which often accounts for things being routine or settled. Here, up until late 2011 or early 2012, there was a common residence. It was jointly owned, even if the respondent was paying the expenses. The reason for his payments strongly supports the continuation of the relationship after 2008.
As indicated, I have found there was a sexual relationship after the end of 2008.
There is little doubt in my mind that there existed a relationship of interdependence, one of financial dependence by the applicant and a non-financial dependence by the respondent.
The use of their property indicated that each saw it as their home. There is no doubt that the degree of mutual commitment to a shared life from the respondent’s perspective was questionable. I have accepted the applicant’s evidence that he did not know of the extent of the infidelity of the respondent. That alone would not persuade me to find that the relationship ended in 2008.
Finally, there can be no doubt about the public aspect of the relationship. Even on that issue, the respondent was adamant. However he conceded that he had to tell the staff in 2011 of the ending of the relationship because there was some doubt amongst the staff that the relationship, which had been well known, had been ongoing. It just happened that the telling of that occurred around the time of the demise of the relationship from the applicant’s perspective. That evidence does not assist the respondent.
I find the de facto relationship ended in approximately September 2011.
I certify that the preceding fifty seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 6 November 2013.
Associate:
Date: 22 January 2014
0
5
1