Sabato & Rimas
[2023] FedCFamC2F 1207
•18 September 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sabato & Rimas [2023] FedCFamC2F 1207
File number(s): MLC 12585 of 2022 Judgment of: JUDGE GLASS Date of judgment: 18 September 2023 Catchwords: FAMILY LAW – PROPERTY – duration of de facto relationship Legislation: Family Law Act 1975 (Cth) s 4AA Cases cited: Briginshaw v Briginshaw (1938) 60 CLR 336
Fairbairn & Radecki (2022) 400 ALR 613
Fox v Percy (2003) 214 CLR 118
Keane & Keane (2021) 62 Fam LR 190
Lombard & Wamsley (2021) FLC 94-038
Sinclair & Whittaker (2013) FLC 93-551
Division: Division 2 Family Law Number of paragraphs: 85 Date of last submission/s: 31 August 2023 Date of hearing: 30-31 August 2023 Place: Melbourne Counsel for the Applicant: Mr Ratnayake Solicitor for the Applicant: TFA Legal Counsel for the Respondent: Mr Byrne Solicitor for the Respondent: Danielle Webb Lawyer ORDERS
MLC 12585 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR SABATO
Applicant
AND: MS RIMAS
Respondent
ORDER MADE BY:
JUDGE GLASS
DATE OF ORDER:
18 SEPTEMBER 2023
THE COURT DECLARES THAT:
1.The Applicant and Respondent were in a de facto relationship from early 2010 until April 2021.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE GLASS:
Mr Sabato and Ms Rimas commenced a de facto relationship in 2010 or 2011. They ceased full-time cohabitation in July 2013. Ms Rimas claims their de facto relationship ended at that time. Mr Sabato claims it did not conclude until April 2021.
A de facto relationship will have broken down when, having regard to all the circumstances of their relationship, the parties no longer “have a relationship as a couple living together on a genuine domestic basis”.[1]
[1] Family Law Act 1975 (Cth) ss 4AA(1); Fairbairn & Radecki (2022) 400 ALR 613 (“Fairbairn & Radecki”) at [29].
Relevant circumstances may include any or all the matters referred to in subsection 4AA(2) of the Family Law Act 1975 (Cth). No particular finding in relation to any such circumstance is to be regarded as necessary in deciding whether the parties have a de facto relationship.[2] I am to have regard to all of the circumstances of the relationship, whether or not they are specified by subsection 4AA(2).[3] I am entitled to have regard to such matters, and attach such weight to any matter, as may seem appropriate in the circumstances.[4]
[2] Family Law Act 1975 (Cth) ss 4AA(3).
[3] Sinclair & Whittaker (2013) FLC 93-551 (“Sinclair & Whittaker”) at [51].
[4] Family Law Act 1975 (Cth) ss 4AA(4).
Two people may be in a de facto relationship without residing at the same residence. The phrase “living together”, “must be construed to take account of the many various ways in which two people may share their lives together in the modern world”.[5] It is to be construed as meaning “sharing life as a couple”.[6] The statutory “language is sufficiently broad to accommodate the great variety of ways a de facto relationship may exist”.[7]
[5] Fairbairn & Radecki at [33].
[6] Fairbairn & Radecki at [39].
[7] Fairbairn & Radecki at [39] and the case there cited.
The enquiry as to the date of conclusion of a de facto relationship requires consideration of what must be proved to establish its existence and then to consider what has changed to the extent that the relationship no longer exists.[8]
[8] Lombard & Wamsley (2021) FLC 94-038 at [24] and the cases there cited.
EVIDENTIARY ISSUES
The parties’ evidence about the circumstances of their relationship is contradictory in many respects. Ms Rimas submits that I should generally prefer her evidence to Mr Sabato’s because of several inconsistencies in his evidence. I reject the submission. Ms Rimas’ evidence was replete with more significant internal inconsistencies. It contradicted the evidence of other witnesses and was inconsistent with some documentary evidence. By way of one example, Ms Rimas deposed that Mr Sabato lodged a caveat over a property in Town B in 2018, but then gave oral evidence that there was no such caveat lodged at that time. To the extent it is necessary to do so, I prefer Mr Sabato’s evidence to Ms Rimas’. I will nevertheless seek to base my conclusions on the “contemporary materials, objectively established facts and the apparent logic of events” to the extent possible.[9]
[9] Fox v Percy (2003) 214 CLR 118 at [31] per Gleeson CJ, Gummow & Kirby JJ.
Ms Rimas had not put Mr Sabato’s witnesses on notice of her intention to cross-examine them prior to the trial. The only witness available on short notice to give evidence was Mr Sabato’s father, Mr C. He gave his evidence by telephone with the assistance of a Country D interpreter. Although Mr C gave oral evidence that his affidavit had not been interpreted to him at the time he signed it, it was his evidence that a friend had translated it to him prior to its signing. Although he also accepted that he had not spoken to the lawyer who had prepared the affidavit, he gave oral evidence that he gave the information contained in it to Mr Sabato. I do not accept those circumstances generally impeach his evidence.
Ms Rimas did not object to the evidence of Mr Sabato’s other witnesses being before the Court. Neither did she seek an adjournment of the trial in order to cross-examine them. Although she suggested she would make submissions as to the weight that could be afforded to their evidence, she did not ultimately do so.
Ms Rimas advanced no basis for rejecting or minimising the weight to be placed on the evidence of Mr Sabato’s brother. She suggested in her oral evidence that Mr Sabato’s other witnesses, Mr E, and Ms F were under duress, and were “pressured and coerced for weeks on end to sign, and they did not want to sign” their affidavits. She had adduced no such evidence prior to the trial, and elected not to seek an opportunity to put the allegation to the respective witnesses. I do not feel an actual persuasion of the allegation if it is intended to suggest they have given false evidence to the Court.[10] I accordingly find no basis to reject the unchallenged evidence of Mr Sabato’s witnesses in circumstances where I found Ms Rimas’ evidence to be unreliable in significant respects.
CIRCUMSTANCES OF THE RELATIONSHIP
[10] Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 per Dixon J; Keane & Keane (2021) 62 Fam LR 190 at [73] and the other cases there cited.
The duration of the relationship
Ms Rimas asserts that the parties’ relationship ended in July 2013. Following that time, she lived in a property she owned in Town G before selling that property, and moving into a property she purchased in Town H in 2019. After July 2013, Mr Sabato primarily lived in a property owned by Ms Rimas in Town B.
In response to Mr Sabato’s evidence that the parties broke up in April 2021, Ms Rimas deposes that she “did not breakup with [Mr Sabato] [in] April 2021 as we were not in a relationship”.[11] Ms Rimas’ assertion is directly contradicted by the evidence of Mr J. Mr J had been a long term friend of Ms Rimas prior to the parties’ relationship. During the period from mid-2013 to early 2021, he drove Ms Rimas to the Town B property, on his evidence, once to three times a year. He considered the parties were a couple having a boyfriend / girlfriend relationship until 2021. He gave the following evidence in chief:
SOLICITOR FOR [MR SABATO]: Are you aware of the fact that the relationship does not exist now?
[MR J]: Yes, I am.
SOLICITOR FOR [MR SABATO]: Okay. How did you find it out?
[MR J]: Well, that particular weekend in 2021
… On the way back from [Town B] back to [Town H], [Ms Rimas] told me that she was breaking up with him and I said, “fair enough.” Well, four weeks after that, I went back to fix the fence. I took my [car] up and I took [Ms Rimas] and her daughter with me. I had all the materials to fix the fence and the tools. And then [Mr Sabato] told me later in the day, not at the start, that they had broken up, so I’m going to say they’ve broken up. (emphasis added)
[11] Affidavit of Ms Rimas filed 3 August 2023, paragraph 68.
Ms Rimas challenged Mr J’s evidence in cross-examination as follows:
COUNSEL FOR [MS RIMAS]: … My client’s instructions are that, after the visit in 2021, she said words to the effect of, “I’m not going back there,” or, “I’m never going back there,” rather than, “I’ve broken up with him”; is it possible that that’s what was said?
[MR J]: No. She said to me she broke up with while we drove back from [Town H] – from [Town B] to [Town H].
COUNSEL FOR [MS RIMAS]: Okay?
[MR J]: She did say that.
COUNSEL FOR [MS RIMAS]: Yes?
[MR J]: She did – also said what you said at [Town H].
Ms Rimas herself gave no evidence about the conversations she had with Mr J in April 2021. Mr J gave his evidence in a considered and straightforward manner. Ms Rimas submits that Mr J was generally a witness of truth. I find no reason to reject his evidence that Ms Rimas told him in April 2021 that she was then breaking up with Mr Sabato.
Mr J’s evidence is also consistent with letters Ms Rimas admits writing to Mr Sabato’s parents. The first letter is relevantly in the following terms:
I hope you are both well!
[Mr Sabato] and I are no longer things over the years have been difficult! Too he was seeing an ex girlfriend in Melbourne (3 years ago) I found out! [Mr Sabato] has told me untruths over the years, also I know he has told people that ‘[Town B]’ is his where the reality is I paid for it with my money (I sold land in [Town K]) [Mr Sabato] has never been able to ‘save’ he is not good with money! [Mr Sabato] has been paying me a small rent of $75 a week for staying there! As living with him was very hard! But always remember I have much fondness for you both and take care.
I wish [Mr Sabato] well too, but I need to move on.[12] (emphasis added)
[12] Affidavit of Mr C filed 25 January 2023, annexure 1, page 6.
The second letter is addressed solely to Mr C. It is in the following terms:
I understand [Mr Sabato] has asked to borrow money for [Town B] last week. I said to [Mr Sabato] I can not look after two houses also ‘[Town B]’ is getting neglected he doesn’t look after it and the pollution of his smoking is staining everything walls, doors furniture so I said “I am selling” he was not happy and then ‘blackmailed’ me for money when I sell! Even though I paid for this myself, he pays me a small rent. But I will pay him for the hot water service he did pay for, I did not know he did this until later (after the fact) as I would of dealt with getting a new one.
He said he was to ask you as he wants [Town B], he like living there if I sell to him ‘cheap’ he will leave me alone. Then I can walk away hopefully in peace.[13]
[13] Affidavit of Mr C filed 25 January 2023, annexure 2, page 8.
Mr C deposed to receiving the letters several days apart, in April 2021. Ms Rimas suggested to Mr C in cross-examination that the letters were sent to him approximately nine or ten years prior. He denied the assertion.
The letters themselves bear the dates of April 2021 and April 2021 respectively. Ms Rimas gave oral evidence that the dates were not in her handwriting and have been “added or altered”. She made no suggestion to any of the witnesses who were in possession of the letter that they had added or altered the dates on the letter. The only evidence before the Court is that the letters were initially in Mr C’s possession prior to him giving them to Mr Sabato.
Ms Rimas’ suggestion that the letters were written nine or ten years prior is inconsistent with their contents. The second letter refers to a hot water system installed in late 2020, as Ms Rimas had herself documented in an annexure to her trial affidavit.[14] As she ultimately conceded in oral evidence, at least one of the letters must have been written after that time. It was not suggested to Mr C that one letter was received at a markedly different time to the other. I reject Ms Rimas’ oral evidence that one letter was written after September 2020 and one prior.
[14] Affidavit of Ms Rimas filed 3 August 2023, annexure 7, page 42.
I accept Mr C’s evidence that the letters were sent in April 2021. They contain a further representation made by Ms Rimas that she was then breaking up with Mr Sabato.
Mr Sabato’s brother deposes to having been told by Mr C after Easter 2021 that Mr Sabato and Ms Rimas had separated. Mr E gives evidence that Mr Sabato told him around Easter 2021 that the parties had separated. Ms F also gives evidence that Mr Sabato attended her home in April 2021, was “very distraught”, and told her that Ms Rimas had ended the parties’ relationship.[15] I find no basis to reject the evidence of those witnesses.
[15] Affidavit of Ms F filed 24 January 2023, paragraph 11.
I find that Ms Rimas advised Mr Sabato, Mr J and Mr C in April 2021 that the parties’ relationship was then over. She would have had no reason to do so had the parties’ separated in July 2013.
The nature and extent of the parties’ common residence
Mr Sabato deposes to the parties commencing cohabitation at Ms Rimas’ Town G property in or around early 2010. Mr Sabato’s evidence in that respect was not challenged in cross-examination, other than by suggesting to him that he was squatting when he met Ms Rimas. Ms Rimas deposed that the parties commenced a romantic relationship in late 2010, before Mr Sabato moved in with her to the Town B property in early 2011. I prefer Mr Sabato’s evidence to Ms Rimas’ given the other inconsistencies in her evidence.
Ms Rimas challenged Mr Sabato’s evidence that the parties moved into the Town B property in late 2010. He gave oral evidence that the parties got the keys on the date that he rented a truck to deliver his furniture to the property before the parties spent Christmas there. Ms Rimas’ challenge was premised on the fact that the property was not transferred into her name until late 2011. I am not satisfied the mere fact that the transfer was not registered until late 2011 establishes that Mr Sabato’s evidence is false. Ms Rimas gives no evidence herself about when it was that the parties moved into the Town B property.
Ms Rimas deposes that she “purchased the [Town B] property as a holiday house for school holidays and the like as we lived in a flat in [Town G]”.[16] Despite that intention, the parties initially occupied the property on a full time basis. Ms Rimas deposes that they moved “so that my daughter could attend a lovely country kindergarten in the town for 3-year-old kindergarten”.[17]
[16] Affidavit of Ms Rimas filed 3 August 2023, paragraph 6.
[17] Affidavit of Ms Rimas filed 3 August 2023, paragraph 9.
Ms Rimas’ evidence about when the parties returned to live in Town G is inconsistent. On one hand she deposes that “I decided to move back to [Town G] so that [L] could attend 4 year old kindergarten there in early 2012”.[18] In the same affidavit, she deposes to returning to Town G so L “could attend 4-year-old kindergarten in 2013”.[19] Mr Sabato gives unchallenged evidence that the parties moved to Town G together in early 2013. I prefer his evidence.
[18] Affidavit of Ms Rimas filed 3 August 2023, paragraph 10.
[19] Affidavit of Ms Rimas filed 3 August 2023, paragraph 43.
Accordingly, during the agreed period of their de facto relationship, the parties lived both in the Town G and Town B properties. They moved between those properties primarily to accommodate the needs of Ms Rimas’ younger daughter.
Ms Rimas asserts that in mid-2013, Mr Sabato moved into the Town B property full time while she remained living full time in the Town G property. Mr Sabato conceded in oral evidence that he was living at the Town B property from mid-2013 until his injury in 2013. He gave unchallenged evidence that he was then fixing up the property. Ms Rimas deposes to the fact he was fixing a leaking roof at the property in late 2013.
Ms Rimas gave oral evidence that she intended for Mr Sabato to stay at the Town B property on a temporary basis. She particularised that assertion by giving evidence that, “it wasn’t a set date, but I said, “for a few months until you get on your feet’”. Contrary to that purported intention, Mr Sabato remains in occupation of the property some ten years later. Also contrary to that expressed intention, Ms Rimas gave evidence that it was not until March 2018 that she first wanted him to leave. I do not accept that delay was attributable to Ms Rimas’ health issues. Her evidence is consistent with Mr Sabato’s evidence of the parties separating for a short period of time in 2018. Mr Sabato gave oral evidence that after 2013, the parties “were in a relationship so why would she want to throw me out and why would I want to go out”? I consider Mr Sabato’s evidence to offer a more logical explanation for why it is that he remained residing at the Town B property after 2013.
In 2013, Mr Sabato had a medical episode and had surgery. He deposes to then staying at the Town G property for approximately three months. In the same affidavit, he deposes to the duration of that period being around six months. In cross-examination he was asked how long he lived with Ms Rimas at that time, to which he answered approximately three months. It was suggested to him that if someone said six months they would be lying. He answered “I wouldn’t have a clue”. He also gave evidence that it could have been longer and could have been shorter. When the inconsistency in his affidavit material was put to him, he gave evidence it “could be three months, it could be longer”. Credibly, he also gave evidence that he could not remember that far back, whether it was six months or whether it was three months.
Ms Rimas deposes to Mr Sabato not staying with her overnight at all after his discharge from hospital in 2013. She gives evidence that Mr M collected Mr Sabato from the bus stop at Town N after he stopped into Ms Rimas’ home for a cup of tea on the way. Mr Sabato gives evidence that he was collected from hospital and delivered to Town G by Ms Rimas’ daughter, Ms O. Neither Ms O nor Mr M were called to give evidence. Ms Rimas also did not call Mr M’s partner to give evidence, despite asserting orally that she would be able to confirm Ms Rimas’ version. No explanation was offered for the failure to call those witnesses. Given the more substantial inconsistencies in Ms Rimas’ evidence, I prefer Mr Sabato’s evidence, and find that he stayed at the Town G property after his surgery in 2013 for a period of at least three months.
It was generally Mr Sabato’s evidence that after July 2013, the parties living arrangements were influenced by care arrangements for Ms Rimas’ daughter L. He deposed as follows:
We continued our romantic relationship despite living under separate roofs. I would stay with [Ms Rimas] at the [Town G] property on the weekends that [L] stayed at [Mr C]'s and on the alternate weekends [Ms Rimas] and [L] would stay with me at the [Town B] property.[20]
[20] Affidavit of Mr Sabato filed 23 August 2023, paragraph 11.
It was put to Mr Sabato in cross-examination that he maintains the parties “were in a committed romantic relationship” and “saw each other almost every weekend”, to which Mr Sabato answered “basically”. Mr Sabato gave oral evidence that when he stayed at the Town G property, he typically drove the 150 kilometres there on Thursdays or Fridays. He gave oral evidence that when Ms Rimas and L stayed at Town B, they either came by bus or by getting a lift with Mr J. Mr J gave oral evidence that he provided such transport between approximately one to three times each year. When travelling by bus, Mr Sabato gave evidence that he collected Ms Rimas and L in Town N on Friday and dropped them off on Sunday. I do not accept Ms Rimas’ suggestion that the absence of details around the logistics in Mr Sabato’s assertion, that the parties spent significant weekend time together, undermines his evidence.
Mr Sabato’s evidence was not contradicted by Mr J. Mr J gave evidence that he had not seen Mr Sabato when visiting Ms Rimas in Town H, although had seen them most of the half a dozen times he had visited Ms Rimas in Town G. Mr J’s evidence did corroborate Ms Rimas’ evidence that she undertook maintenance at the Town B property. He also gave evidence that Ms Rimas shared a bedroom at the property with L, and not Mr Sabato. I accept Mr J’s evidence.
Ms Rimas gave oral evidence that Mr Sabato never stayed overnight at the Town H property, that he visited the Town G property once or twice a year after July 2013, and that she went to the Town B property two to three times a year. Like her evidence about the number of times the parties’ stayed together at Mr C’s home, I find that her evidence to be seeking to minimise the extent of the parties’ time together. I prefer Mr Sabato’s evidence that the parties basically spent their weekends together at any of the three properties owned at various times by Ms Rimas.
Mr Sabato suffered from another medical episode in 2016 and required more surgery. After his discharge, he deposes to having been picked up from hospital by his father, Mr C, and his father’s friend, and taken to Ms Rimas’ home in Town G where he stayed for three months. Ms Rimas suggested to him in cross-examination that had not occurred, which suggestion he denied. Ms Rimas herself gave oral evidence that on one occasion, Mr C took Mr Sabato to Town G after being discharged from hospital. Ms Rimas did not challenge Mr C’s evidence that he and his friend picked Mr Sabato up from hospital and took him to Ms Rimas’ home, where to Mr C’s knowledge, he stayed for at least three months. I prefer Mr Sabato’s and Mr C’s evidence and find that Mr Sabato stayed with Ms Rimas in Town G for around three months after his medical episode in 2016.
In response to Ms Rimas’ evidence that she did not have the energy to force Mr Sabato out of the Town B property until early 2018, Mr Sabato deposed that “this is untrue. As the owner of the property, she could have thrown me out at any time but never did”.[21] He was cross-examined on the inconsistency between his evidence and the subsequent unsuccessful attempts Ms Rimas made after April 2021 to evict Mr Sabato from the property. I do not accept there is a contradiction between his oral and affidavit evidence that gives rise to general concerns about the reliability of Mr Sabato’s evidence.
[21] Affidavit of Mr Sabato filed 23 August 2023, paragraph 59.
Mr Sabato’s brother deposed that when he called Mr Sabato over the years, Ms Rimas answered the phone on several occasions. Mr C also deposed that:
Over the years I had regular telephone calls with [Mr Sabato]. [Ms Rimas] or her daughter would often answer the phone when I rang and then pass the phone on to [Mr Sabato] to talk to me.[22]
[22] Affidavit of Mr C filed 25 January 2023, paragraph 8.
Neither Mr Sabato’s brother’s nor father’s evidence was challenged by Ms Rimas. I decline to reject it, despite Ms Rimas’ contradictory evidence. Mr C and Mr Sabato’s brother’s and father’s evidence corroborates the fact the parties regularly shared the same residence.
Although the parties primarily resided in separate residences after July 2013, they both continued to make substantial use of the property in which the other party resided.
Whether a sexual relationship existed
Mr Sabato deposes that the parties maintained a sexual relationship until April 2021. Ms Rimas deposes that the parties ceased their sexual relationship in July 2013. Neither party was directly challenged on their evidence.
In his affidavit, Mr Sabato denied Ms Rimas’ evidence that the parties’ sexual relationship did not resume after July 2013. He went on to depose that “[t]his can be shown clearly from the multitude of affidavits presented by my father, my brother and friends”.[23] Although Mr Sabato accepted that none of those people saw the parties have sex, he gave oral evidence that they saw the parties kissing, hugging, and staying in the same bedroom.
[23] Affidavit of Mr Sabato filed 23 August 2023, paragraph 46.
Mr C deposes to Mr Sabato and Ms Rimas staying at his home at least once a year both in Suburb P and in Suburb Q, after moving there in 2019. He deposes to them staying overnight and sharing a bedroom. Mr C denied Ms Rimas’ assertion in cross-examination that she had only met Mr C once and stayed at his home once.
Ms Rimas originally deposed to staying at Mr C’s home overnight in 2014 and 2016. She then corrected her written evidence by the deletion of the first reference. She gave oral evidence that the only time she stayed overnight at Mr C’s home was in 2016 at a “two bedroom unit in [R Street, Suburb Q]”. She subsequently repeated that it was the Suburb Q property where she stayed overnight on one occasion, after Mr Sabato suggested that she go with him to visit Mr C’s new home. That evidence directly contradicts Mr C’s unchallenged evidence that he did not move to Suburb Q until 2019. I do not accept Ms Rimas’ evidence that she only stayed overnight at Mr C’s home on one occasion.
Given the greater number of significant inconsistencies in Ms Rimas’ evidence, I prefer Mr Sabato’s evidence, and find the parties continued to have a sexual relationship until April 2021.
The degree of financial dependence or interdependence, and any arrangements for financial support, between the parties
Mr Sabato paid Ms Rimas the sum of $75 per week. It was Ms Rimas’ evidence that the amount represented rent for the Town B property. There is no suggestion there was any formal lease agreement between the parties. In April 2017, Ms Rimas signed a statutory declaration to confirm that Mr Sabato had been paying her rent at that rate for three years and ten months. I do not place significant weight on Ms Rimas’ own prior representation. The subsequent statutory declaration signed by both parties in early 2018 made no reference to rental payments, despite setting out financial arrangements in the event the parties “are no longer in each other lives what so ever”.[24]
[24] Affidavit of Mr Sabato filed 23 January 2023, annexure 2, page 12.
It was Mr Sabato’s evidence that his payments of $75 per week were to pay for the mortgage for the property. No document relied on establishes the amount that was required to pay the home loan secured against the Town B property. He was cross-examined as follows:
COUNSEL FOR [MS RIMAS]: When did you have the discussion that gave rise to this agreement; after your medical episode?
[MR SABATO]: No, this happened way, way before. Before we – before we got the property. She told me straight out she couldn’t afford it, but we would get one – one under the thing that I pay the mortgage and when we split up, we go fifty-fifty.
Mr Sabato’s evidence that Ms Rimas could not afford the Town B property without his contribution was not challenged. He also gave oral evidence that one of the reasons the parties lived primarily in different properties was to get more money on the pension. Given the other inconsistencies in Ms Rimas’ evidence, I prefer Mr Sabato’s evidence and find that his payments to Ms Rimas of $75 per week were intended to pay for the mortgage and were not rental payments.
It was Ms Rimas’ evidence that the $75 per week payments only commenced in July 2013. She tendered select bank statements of one of her accounts purportedly in support of the evidence. They show no direct transfer from Mr Sabato into her account. However, the account statements tendered show essentially no electronic transfers into the account at all. They do show significant, and regular cash deposits of $100 and $50. It is also not the account from which the home loan repayments were paid. I am not satisfied that the tendered bank statements establish the falsity of Mr Sabato’s evidence that he transferred $75 per week to Ms Rimas from early 2011. I also prefer his evidence in that respect.
Mr Sabato gave oral evidence that he occasionally paid the rates for the Town B property, when Ms Rimas could not afford to do so. When he was asked to identify an occasion on which he had done so, he gave evidence that he had produced documents to verify his assertion by way of discovery. It was not subsequently suggested to him that he had produced no such document. I accept Mr Sabato’s otherwise unchallenged evidence that he occasionally paid rates for the Town B property.
In late 2019, Mr Sabato set up a broadband connection for the Town H property, which was primarily occupied by Ms Rimas and L. Ms Rimas gave evidence that he wanted to do it for L, despite Ms Rimas not wanting him to do so. She nevertheless did not stop him doing so. She gave oral evidence that he made “only a few payments” towards the broadband account. She subsequently conceded he paid the account from 2019 until 2021 and he had made more than a few payments. I find Ms Rimas’ initial evidence sought to minimise the true extent of the parties’ relationship.
The ownership, use and acquisition of the parties’ property
Ms Rimas now owns a property in Town H and the Town B property.
Mr Sabato gives evidence that when Ms Rimas purchased the Town B property in 2010, the parties agreed to “split the net proceeds of sale equally when she decided to sell”.[25] It is not disputed that Ms Rimas provided the deposit for the purchase of the property and obtained a loan secured by mortgage in her sole name. Mr Sabato gave oral evidence consistent with his affidavit as follows:
Her agreement was whatever I put in, I get out. Whatever it was; 30 grand, I think, at the time, or 40,000. I can’t remember exactly. And then, profit after that. Like hypothetically she put in 30,000. The property sold for 100,000. So I would only get property of – settlement of 60,000. You understand? Not the whole 100,000 because she would be taking out X amount of what she initially put in.
[25] Affidavit of Mr Sabato filed 23 August 2023, paragraph 6.
Although Ms Rimas denies any such agreement, given Mr Sabato’s contribution towards repayment of the mortgage on the property and the other inconsistencies in Ms Rimas’ evidence, I accept Mr Sabato’s evidence.
Mr Sabato also gave evidence that he maintained the Town B property and undertook works on the Town H and Town G properties. He deposed to having made improvements to the Town H property, including removing floor coverings and wallpaper, purchasing and installing new blinds, purchasing paint and painting the interior, and paying for a carpenter to install new doors and locks. He deposed to having made minor renovations and painting the Town G property prior to its sale in 2019. He also deposed to various works on the Town B property, including replacing the roof, painting the property, paying for a heater, removing old carpets and paying for the installation of new carpets, flooring in the bathroom, replacing the fence, purchasing and installing new blinds, and replacing roof insulation. He gave oral evidence in cross-examination that he had provided receipts for works he had paid for, including a carpenter, paint and other various expenses. He was not challenged on that evidence, nor were the documents called for. I decline to reject his evidence in those circumstances, even if Ms Rimas gave contradictory oral evidence.
Mr Sabato also gave oral evidence in re-examination in relation to improvements and renovations to the Town B property that:
Well, I have repainted, I have put carpets, I have done a hot water service, I have done a heater, [flooring], roofing. There’s so many other things that I can’t – you know, like, bits that are broken that I have fixed or that I have replaced or whatever.
When asked about the Town H property in re-examination he gave evidence that he “had done many, many renovations or fixing of certain things on both the [Town G] and [Town H] property as well”.
Mr J gave evidence that Ms Rimas told him that Mr Sabato had painted the interior of the Town B property, and that he had observed that it was clean inside. He was not challenged on that evidence.
I am accordingly satisfied the parties agreed to share in the proceeds of any sale of the Town B property, and that Mr Sabato undertook various renovation and maintenance works on each of Ms Rimas’ properties.
The degree of mutual commitment to a shared life
Mr Sabato deposes that after his medical episode in 2013, Ms Rimas came to the hospital to visit him every day thereafter. Mr Sabato’s brother deposes that when he visited Mr Sabato in hospital in City S a few days after his admission, Ms Rimas was in Mr Sabato’s hospital room. Mr Sabato deposes that Ms Rimas’ daughter, Ms O, drove him to Ms Rimas’ home in Town G after his discharge, where Ms Rimas took care of him for several months. He also deposes to Ms Rimas looking after him for three months after his discharge from hospital after a further medical episode in 2016. For reasons already given, I prefer Mr Sabato’s evidence and find that Ms Rimas nursed and cared for Mr Sabato after his medical episodes.
Mr Sabato gave unchallenged and uncontradicted evidence that in 2013 he signed over to Ms Rimas “all my Centrelink, my telephone, my banking, everything so she could have authority”. He also gave evidence that he withdrew those authorities in 2021 and 2022. Ms Rimas gave oral evidence that she reluctantly agreed to be the person who managed Mr Sabato’s Centrelink. She gave further oral evidence that:
I didn’t really like the idea, but I did it, because I thought, well, if there’s a problem with my rental property up there, I would probably be the easiest person to go into either [Town G] Centrelink or [Town N] to explain the situation, like if he was hospitalised or things like that, because his family were so far away in Melbourne.
…
I thought, well, it would probably be a lot easier for me to do considering he was my tenant and I would have to sort of get those formalities in place as well if I had to by Centrelink.
Ms Rimas was unable to identify in oral evidence when those arrangements had changed, although she initially asserted that it had happened a couple of years later. She conceded she did nothing to change them. I find that Ms Rimas remained authorised to deal with Centrelink and other agencies on Mr Sabato’s behalf until 2021 or 2022.
Mr Sabato’s nomination of Ms Rimas as his life insurance benefit nominee until late 2022 is also consistent with the parties having a mutual commitment to a shared life together.
Mr Sabato gave evidence that he did not attend Ms Rimas’ 50th birthday “as it fell during the COVID 19 lockdown”. Ms Rimas put to Mr Sabato that there were almost no COVID restrictions in late 2020. He gave the following evidence:
I’m not sure because – because of the fact that, from week to week, it used to change and I wasn’t allowed – I wasn’t aware whether I could travel and get food or whether I could – because we’ve only got one small supermarket in [Town B]. All the bigger shops and clothes and stuff like that were in [Town N], which is [10] kilometres away. So I wasn’t aware – and you would go to the police officer, “Can I travel?” And they said, “We don’t know.” So there’s…no point in me risking getting a fine or – during that time.
Although Ms Rimas gave contradictory evidence, she did not demonstrate Mr Sabato’s evidence to be false by reference to any contemporaneous material or record. In those circumstances, I decline to reject it, and prefer Mr Sabato’s evidence.
Mr Sabato also gave evidence that he paid for family holidays for Ms Rimas, L and himself, to go to Town T and Town U in South Australia on several occasions. He also deposed to the parties intending to move to Melbourne once Mr C passed away, or selling Ms Rimas’ properties and using Mr Sabato’s future inheritance to purchase real estate closer to City V, where Ms O lives. His evidence was not challenged, and I accept it.
Mr Sabato and Ms Rimas spoke on the telephone regularly. During the period for which phone bills are in evidence, from late 2019 until late 2020, she called him on average fourteen times per month. Whilst many of the calls were short, some were very long, including two calls totalling 30 minutes in March 2020 and one call of 45 minutes in June 2020. The independent evidence is inconsistent with Ms Rimas’ deposed evidence that she “rarely spoke to”[26] Mr Sabato and “the calls are all short”.[27] I do not accept her evidence that the totality, or even the bulk, of those phone calls related to maintenance or utility issues as was suggested by Ms Rimas in oral evidence.
Whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship
[26] Affidavit of Ms Rimas filed 3 August 2023, paragraph 49.
[27] Affidavit of Ms Rimas filed 3 August 2023, paragraph 64.
It was not suggested by either party that their relationship was relevantly registered.
The care and support of children
The parties have no children of their relationship. Ms Rimas has two daughters from previous relationships, Ms O, now an adult, and L, now aged thirteen years. Mr Sabato purchased a bike and a computer for L. He also purchased a wardrobe for L which is in her bedroom.
The reputation and public aspects of the relationship
Ms Rimas deposes that “no-one considered” the parties “to be in domestic relationship” after July 2013.[28] That evidence is directly contradicted by each of the non-party witnesses called to give evidence in the case.
[28] Affidavit of Ms Rimas filed 3 August 2023, paragraph 70.
Mr J gives evidence that Ms Rimas introduced Mr Sabato to him as her boyfriend in around 2011 and continued to do so until approximately three or four years ago. He gave oral evidence that Ms Rimas “kept saying that [Mr Sabato] was ‘my boyfriend’”. Mr J’s evidence in that respect was not challenged by Ms Rimas and I find no basis to reject it.
Mr Sabato’s brother deposed that he was introduced to Ms Rimas as Mr Sabato’s girlfriend in 2014, after Ms Rimas asserts their relationship had concluded. He gives evidence of the parties attending his father’s properties in Suburb P and Suburb Q for family functions “where they appeared to be in a relationship and shared a bedroom”.[29] He deposed to being advised of the parties’ separation at Easter in 2021. His evidence was not challenged and I find no reason to reject it.
[29] Affidavit of Mr C filed 25 January 2023, paragraph 6.
Mr E, a friend of Mr Sabato’s, deposed to knowing the parties since around 2011 or 2012. He gives evidence of spending Christmas Day with the parties in 2015, 2016, 2017 and 2018 in Town B. He deposes that the parties slept at each other’s houses over the years he has known them, that Ms Rimas would sleep in Mr Sabato’s bed when she stayed in Town B and she “referred to him affectionately by calling him ‘darl’”.[30] It was Mr E’s understanding that the parties “have always been in a relationship together”, apart from a period of two weeks in 2018, until Mr Sabato told him the parties had separated at Easter in 2021.[31]
[30] Affidavit of Mr E filed 24 January 2023, paragraph 6.
[31] Affidavit of Mr E filed 24 January 2023, paragraph 7.
Ms F, another friend of Mr Sabato’s, deposed to meeting the parties in around 2011, and thereafter seeing the parties for coffee together when Ms Rimas visited Town B. She also gives evidence that both parties attended the W Hospital together when Ms F’s late partner was seriously ill. She deposes to the parties attending a barbeque together in 2017, and her sharing Christmas Day with them both in 2018. She also understood the parties’ relationship to have continued until April 2021 when Mr Sabato visited her while he was very distraught to tell her Ms Rimas had ended their relationship.
Ms Rimas did not challenge the evidence of Mr E or Ms F. Absent any such challenge, I decline to reject their evidence. It is consistent with not only the evidence of Mr Sabato, but also the accepted evidence of other witnesses.
In 2019, the parties went out to dinner with Mr J at Town X. Mr J took a photograph of them both on that occasion. In 2021, the parties, L and Mr J went on a road trip together to Town T. Mr J gave uncontradicted and unchallenged evidence that Ms Rimas told Mr J that Mr Sabato was going to pay for lunch and he thereafter did so. So much suggested to Mr J that Mr Sabato was Ms Rimas’ boyfriend at the time.
Mr Sabato gave oral evidence that Ms Rimas used to come up to Town B during the period between 2013 and April 2021, during which time “people have obviously seen us holding hands or something” and “they must have seen us kissing”. I find no reason to reject his evidence.
I am satisfied that the parties were considered to be a couple by their friends and family throughout the disputed period.
Other circumstances
Ms Rimas’ evidence in relation to Mr Sabato’s Centrelink benefits is inconsistent. On the one hand, she deposes to Mr Sabato changing his status with Centrelink to commence receiving the single rate in July 2013. On the other, she deposes that, “as far as I am aware he was always “single” and his relationship status with Centrelink did not change after July 2013”.[32]
[32] Affidavit of Ms Rimas filed 3 August 2023, paragraph 56.
Mr Sabato was taken to a letter attached to Ms Rimas’ affidavit from Centrelink confirming that she was assessed at the partnered rate from early 2011 until July 2013 and the single rate thereafter. Mr Sabato gave oral evidence that:
…the reason behind that document is due to the fact – when a couple are together in Centrelink’s eyes, they get a reduced amount of income. When they’re apart but living – like, de facto but living in separate addresses, they get a substantial amount more. So that’s why we’ve done it.
…
We were getting more money, but we weren’t doing any wrong legally, or whatever you want to call it.
Given the inconsistencies in Ms Rimas’ evidence and the absence of challenge to Mr Sabato’s evidence, I am not satisfied that the parties intended to convey to Centrelink that they were no longer in a de facto relationship in July 2013. That finding is also consistent with Mr Sabato’s other oral evidence that the parties “were just living at separate addresses for money purposes”.
Mr Sabato gives evidence that the parties separated for a period of 9 days in 2018. He gives evidence that Ms Rimas, who was authorised to act on his behalf with Centrelink, then changed his relationship status to “separated”.[33] Annexed to his affidavit is a copy of a Centrelink document reflecting his relationship status as separated in early 2018. He was not challenged on his evidence in that respect. It is evidence consistent with the parties’ de facto relationship continuing beyond July 2013.
[33] Affidavit of Mr Sabato filed 23 August 2023, paragraph 18.
Also consistent with the parties continuing to be a couple after 2013 was Ms Rimas’ evidence that she used Mr Sabato’s computer when she attended the Town B property. Her doing so is inconsistent with the landlord / tenant relationship she seeks to establish.
Conclusions
Whilst I have some reservations about Mr Sabato’s evidence, I am not generally satisfied that Ms Rimas’ evidence is preferable. Her evidence was replete with internal inconsistencies, and was contradicted by contemporaneous materials and the accepted evidence of other witnesses in the case.
The parties continued to share the use of Ms Rimas’ property in Town G, Town B and Town H during their relationship. The absence of their full-time cohabitation does not establish to my satisfaction the absence of a de facto relationship.
Mr Sabato and Ms Rimas agreed to share in the proceeds of any sale of the Town B property. Mr Sabato maintained Ms Rimas’ properties, they shared the use of the properties together, they attended social events together as a couple, and they have been observed to share a bedroom by a number of witnesses. They were understood by all the other witnesses in the case to have been a couple throughout the contested period.
I do not accept Ms Rimas’ assertion that the parties’ de facto relationship broke down in 2013. I am accordingly satisfied that the parties had a relationship as a couple living together on a genuine domestic basis from 2010 until April 2021.
I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Glass. Associate:
Dated: 18 September 2023
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