Sam and Lamothe - [2016] FamCA 576

FAMILY COURT OF AUSTRALIA

SAM & LAMOTHE

[2016] FamCA 576

FAMILY LAW – JURISDICTION - DE FACTO RELATIONSHIP – Property settlement – Where the respondent seeks a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) (“the Act”) that the parties relationship was a “de facto relationship” within the meaning of s 4AA(2) of the Act – Whether the parties were living together on a “genuine domestic basis” – Where it is agreed that the parties were in a de facto relationship for an earlier period of time – Where the circumstances taken together support a finding that the parties were in a de facto relationship at the relevant time – Declaration made.

Family Law Act 1975 (Cth) ss 4AA(1), 4AA(2), 4AA(5)(b), 90RD, 90SM, 90SK, 90SB
Family Law Amendment (De facto Financial Matters and Other Measures) Act 2008 (Cth)
Family Law Rules 2004 (Cth) r 15.10

Barry and Dalrymple [2010] FamCA 1271
In the Marriage of Cierpiatka (1999) 25 Fam LR 548
Nelson v Nelson (1995) 184 CLR 538
Roy v Sturgeon (1986) 11 Fam LR 271
Sinclair & Whittaker (2013) FLC 93-551

APPLICANT:

Mr Sam

RESPONDENT:

Ms Lamothe

FILE NUMBER:

SYC

4095

2014

DATE DELIVERED:

15 July 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Loughnan J

HEARING DATE:

6 - 10 June 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Rosic

SOLICITOR FOR THE APPLICANT:

Calvin Nelson & Co

COUNSEL FOR THE RESPONDENT:

Ms Gibbons

SOLICITOR FOR THE RESPONDENT:

Maveston Legal

Orders

The Court declares pursuant to s 90RD of the Family Law Act 1975 (“the Act”) that the parties were in a de facto relationship within the meaning of s 4AA of the Act for the following periods:
(a) 1991 to June 2002; and
(b) 24 April 2009 to 6 April 2011.
The proceedings are adjourned to a date to be fixed in relation to the respondent’s application for leave pursuant to s 44(6) of the Act to file an application for property settlement.
No order is made as to costs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sam & Lamothe 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 SYDNEY

FILE NUMBER: SYC 4095 of 2014

Mr Sam

Applicant

And

Ms Lamothe

Respondent

REASONS FOR JUDGMENT

Introduction

By her Initiating Application filed 3 July 2014, Ms Lamothe sought orders for settlement of property against Mr Sam. She subsequently sought orders for leave to commence those proceedings out of time.
The present hearing relates to a threshold issue in respect of those proceedings. Mr Sam (“the applicant”), by his Application in a Case filed 18 September 2015 sought a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) (“the Act”) that the parties were not in a de facto relationship on or at any date subsequent to, 1 March 2009 and that accordingly, this Court does not have jurisdiction to entertain a claim for property settlement.
Ms Lamothe (“the respondent”) by her Response to an Application in a Case sought a declaration that the parties were in a de facto relationship for specific periods after 1 March 2009, namely between June 2007 and 9 April 2009 and/or between 9 April 2009 and 10 April 2011.

The Hearing

The matter was listed for hearing over five days commencing on 6 June 2016. Both parties were represented. By arrangement with the parties’ counsel, a trial plan was prepared to contain the hearing to four days. However, one counsel was indisposed late on 7 June and for all of 8 June and as a result, the hearing ultimately extended into a fifth day. Judgment was reserved at the conclusion of the hearing on 10 June 2016.

The Parties

The applicant was born in 1942 in the United Kingdom. He is 73 years of age. The respondent was born in 1954 in Country B. She is 62 years of age. Although they disagree about the nature of their relationship since June 2007, they agree that they lived in a de facto relationship from 1991 to June 2002.
The parties have a son, Mr D (“Mr D”) who was born in 1995. As at the time of the hearing he was 20 years of age.
The applicant has one adult child from a previous marriage, namely Ms E who was born in 1967. Another child from that marriage, Mr F, was born in 1970. Sadly, he died in 1988.
The respondent has two adult children from her previous marriage, namely Ms G and Ms H.

Background Facts

In 1965 the applicant migrated from the United Kingdom to Australia.
In 1988 the respondent migrated from Country B to Australia.
In late 1988 the parties met when the respondent began working in the applicant’s business, I Pty Ltd.
In 1989 the applicant separated from his wife, Ms J and they were later divorced.
In 1990 the parties commenced a sexual relationship and in October 1991 they started living together at a rental unit in Suburb K. The respondent’s daughters, Ms G and Ms H lived with them. They were aged 12 and six years old respectively at that time.
In 1992 I Pty Ltd was wound up.
In approximately 1993 the parties moved into a rented three bedroom home at Suburb L with the respondent’s children, Ms G and Ms H, who were aged 16 and 10 years old respectively.
In approximately 1993, the parties formed a company called M Pty Ltd. The parties were both directors and shareholders of the company.
In 1995 the parties’ son, Mr D was born. At approximately this time the parties moved to another rental property at Suburb N.
The parties separated in June 2002. The respondent and Mr D moved out of the Suburb N property the parties were occupying and into a unit at Suburb O with Ms H, and Ms H’s partner. The respondent remained living at that unit until April 2009.
After separation, the applicant spent time with Mr D from Friday afternoons until Sunday evenings, and for some time on Tuesday evenings. The respondent said that immediately after separation the applicant spent time with Mr D but not in her presence. After a few months the arrangements relaxed and the applicant would spend time with Mr D and the respondent together, in her apartment.
From 2002, M Pty Ltd ceased to trade. Its only income thereafter was as a corporate vehicle providing the applicant’s services to other employers. The applicant contends and the respondent rejects that he paid her a total of $4,000 for her interest in the company.
In December 2003 the respondent resigned from M Pty Ltd. The parties disagree as to whether she intended that resignation to also terminate her role as a director of the company.
In about 2004 the applicant started working for a company called Company P. He arranged for the respondent’s son in law, Mr G to obtain a job there.
In April 2007 the applicant purchased Company P. He used the corporation that conducted M Pty Ltd for the purchase and later changed the name of the company to Company P Pty Limited (“Company P”). The respondent contends and the applicant disputes that the purchase was a joint decision and a joint enterprise rather than the sole endeavour of the applicant.
In about August of 2007 the respondent commenced work at Company P. She worked in administration and was paid a wage. The respondent deposed and the applicant disputes that her role with Company P was as director and shareholder as well as employee, as had been the arrangement for M Pty Ltd.
On 10 August 2007 Mr G purchased 30 per cent of Company P in exchange for $50,000 that he and his wife, Ms G, lent to the company. They borrowed $35,000 on their home mortgage, and the applicant lent them the remaining $15,000. Over about 18 months, dividends paid to Mr G by the company enabled him to repay both loans.
In early 2008 the applicant moved into a rental unit at Suburb Q.
In March 2009 the applicant purchased a property at Suburb L (“the Suburb L property”) for $580,000 in his sole name. He paid an initial deposit of $58,000 on 12 February 2009. On 28 March 2009 he paid a sum of $133,352 which was mainly financed using $100,000 that he borrowed from Company P. He borrowed the balance of $412,000 from Westpac.
The parties and Mr D moved into the property on 24 April 2009. The parties occupied separate bedrooms.
From May 2009 to April 2011 the applicant did not pay child support.
On 6 April 2011 there was an incident between the parties and the applicant was arrested. He spent the night in custody and was released the following day without charge. An Apprehended Violence Order (“AVO”) was issued for the protection of the respondent, and the applicant consented to it on a “without admissions” basis. In her statement to the police, the respondent said that she had been separated from the applicant for nine years[1].
[1] Witness statement of the respondent dated 6 April 2011 produced on subpoena – exhibit 6
The respondent moved out of the property thereafter and into a rental property at Suburb R. The applicant said that from this time, he spent time with Mr D on an irregular basis.
In October 2011, the applicant terminated the respondent’s employment at Company P.
On 3 July 2014 the respondent filed an Initiating Application seeking orders for property settlement.

Credit

Neither of the parties is a good witness.
The respondent rejects the applicant’s evidence that in about 2003 she transferred her shares in M Pty Ltd. No documents were produced to evidence the respondent’s agreement to a transfer. The applicant gave evidence that an accountant Mr S prepared necessary documents for the share transfer. The applicant said that Mr S is still in practice but the applicant produced no corroborative documents and gave no explanation for not doing so. I assume Mr S’s records do not support the applicant’s case.
The applicant deposed that from 2007 he started socialising with Ms T. Ms T corroborated that evidence. Unfortunately she deposed in other proceedings that their relationship started in 2010[2]. No attempt was made to have Ms T explain her conflicting evidence on this issue. She is not a credible witness and therefore cannot corroborate the applicant’s evidence.
[2] Exhibit 4
The respondent concedes that she misled Centrelink and others and deliberately so. She gave her evidence on this and related matters with the assistance of a certificate under s 128 of the Evidence Act 1995 (Cth). There are aspects of the respondent’s testimony that are unlikely to be true. As was submitted on behalf of the applicant, on some issues, the respondent’s evidence was a bare assertion, without any context. This applied to her case about the purchase of the Suburb L property being a joint enterprise. She makes the assertion but gives no evidence about communications between the parties of the type that would have attended a joint enterprise of that nature. For example: what would be bought, where it should be located, how much could they afford, etc. As was submitted on behalf of the applicant, either she could not recall any such communications or there were none. The latter is more likely.
The most likely reason for a witness statement by the respondent in 2011 recording that the parties separated about nine years earlier, is that the respondent told a police officer something to that effect. The most likely reason for her doing that is that in contrast to her case before me, she thought it was true.
It was the applicant’s evidence that when he was looking to purchase a property in 2009, the respondent did not inspect any properties with him except the Suburb L property and that inspection occurred only after contracts had been exchanged. The respondent said that she attended with the applicant at inspections of potential properties to purchase. Mr D corroborated the respondent’s evidence about property inspections. He recalled inspecting a property at Suburb N with the parties and another property at Suburb O. Importantly, he was not challenged about that evidence.
Having heard all of the witnesses and seen the removalist’s records[3], it is likely that the applicant’s evidence about the timing of the parties’ move into the Suburb L property is wrong. It was the respondent’s evidence that the parties moved into the Suburb L property on the same day, being on or about 9 April 2009. She contended that the applicant arranged for removalists to move both sets of furniture (the applicant’s furniture from Suburb Q and the respondent’s furniture from Suburb O). She contended that her daughters and their husbands helped with the move. It was the applicant’s evidence that he alone moved into the property on 24 April 2009 with the help of removalists and his brother, Mr U. Mr U corroborated the applicant’s testimony. Mr U agreed that the applicant moved in alone and that neither the respondent nor her daughters and sons in law assisted in that move. It was the applicant’s evidence that the respondent moved into the property on 29 April 2009. He said that the removalists engaged by him moved only his furniture.
[3] Exhibit 2 and exhibit 5
The respondent was some days out in respect of the date of the move but in my view, the applicant gave false evidence on this issue. The applicant gave unequivocal evidence about the parties moving into Suburb L on different days. His brother corroborated that evidence. They were both wrong. Of perhaps greater concern was the fact the applicant relied on a record[4] from the removalists which supported the inference and his contention, that he alone moved into the property on 24 April 2009. That record was only produced during the trial. Following enquiries made by the respondent’s lawyers, further documents[5] were produced from the removalists. They confirmed the collection of furniture at Suburb Q and its delivery to Suburb L. However, they also revealed that on that same day (24 April 2009), the same removalists were commissioned to collect furniture from the respondent’s Suburb O premises and deliver it to Suburb L. Importantly, the records show that the applicant paid for both deliveries. It is of significant concern that the applicant relied on evidence of his arrangement with the removalists for the transport of his furniture from Suburb Q when he knew or should have known that he had paid the same removalists to move the respondent’s furniture on the same day. It was his evidence: “Her sons in laws (sic) helped her move into my house and set her up in the main bedroom …”. But for the late production of exhibit 5, the applicant’s evidence would probably have been accepted.
[4] A copy of an agreement with Company W dated 17 April 2009 - exhibit 2
[5] Tax invoices from Company W dated 24 April 2009 - exhibit 5
The respondent deposed that she provided most of the furniture for the Suburb L property and that “[Mr Sam] contributed a bed and some lounge chairs”. The applicant disputed the respondent’s evidence. Like many other points of difference in the parties’ evidence, the resolution of the dispute is of no assistance in the proceedings, save in relation to credit. I note that although the removalists fee was slightly greater for moving the respondent’s furniture to Suburb L than for moving the applicant’s furniture from Suburb Q, the charges for the parties’ moves were of the same order (about $450). That suggests to me that the removalists moved more than “a bed and some lounge chairs” from the applicant’s unit at Suburb Q.
Much of the cross-examination of the respondent’s supporting witnesses focussed on the fact that those witnesses had access to the affidavits filed in the applicant’s case. Putting aside the lack of real utility in having every witness comment on the evidence of every opposing witness, given the task set for the respondent’s supporting witnesses, I can see nothing untoward in them reading the evidence to which they were asked to respond. Of greater concern, there were discussions between some of the respondent’s witnesses about the topics in respect of which they gave evidence and some of those discussions occurred before their written evidence was prepared and all of them occurred before they were cross-examined. Given the extent of hearsay evidence excluded from the affidavits of the supporting witnesses on objection, there is no doubt that much of the evidence of the supporting witnesses on both sides of the case, is simply an additional expression of the views of the party in whose case they have given their evidence, rather than a record of their independent recollection.
Mr G gave his oral evidence with the assistance of an interpreter with knowledge of the French language. Mr G is from Country B and English is not his first language. If his affidavit was accepted at face value, Mr G recalled word for word, conversations in English that he had and overheard in 2007. On the other hand, he could not recall when cross-examined, why he did things associated with the preparation of his affidavit in November last year. He conceded that he wrongly deposed that he and his wife borrowed $50,000 on the security of their house to buy into Company P. Unlike his oral evidence, his affidavit was apparently prepared without the assistance of an interpreter. There is no endorsement on the jurat as required by rule 15.10 of the Family Law Rules 2004 (Cth) which deals with the swearing of affidavits and provides among other matters:
(2)If a deponent does not have an adequate command of English:
(a)a translation of the affidavit and oath must be read or given in writing to the deponent in a language that the deponent understands; and
(b)the translator must certify that the affidavit has been translated.
Those circumstances mean that Mr G was not a credible witness.
Sadly, the respondent called evidence from the parties’ son, Mr D. Although he is now 20 years of age, it would have been best to avoid that situation. The damage was compounded when the applicant gave instructions for Mr D to be cross-examined. All of that said, I found Mr D to be an impressive witness. His was not a complete rejection of his father’s evidence. For example, although expressing disappointment about his father’s evidence about the sleeping arrangements at Suburb L[6], Mr D did not dispute the effect of the applicant’s evidence in that paragraph. He is no doubt strongly aligned with his mother and ill-disposed to his father but his evidence in cross-examination had the ring of truth.
[6] At paragraph 108 of the applicant’s affidavit
Those observations having been made, there is the question of the relevance of credit findings in these proceedings.
There is the matter of the parties describing their relationship from time to time, as one thing or the other. The decision for me is not whether the parties or either of them believed that they were in a relationship of a particular type, or even whether they thought that their relationship met the statutory definition under s 4AA of the Act. Given the nature of the definition of a de facto relationship in the Act, where the parties do not agree, the decision as to whether there is a de facto relationship at any given time is exclusively a matter for the Court. Again, unless they agree, although the perception of the parties about the nature of their relationship might be a relevant matter, it cannot be determinative and may be of no assistance at all.
Therefore, statements from witnesses about the start, the finish or about the duration of relationships of a particular description are of no meaningful assistance. Similarly, the parties’ past statements about any of the factual matters going to the elements of the s 4AA definition are unlikely to be conclusive and may not even be of assistance. It gives those statements no greater import if they were made on oath or for monetary advantage[7]. As was said by the Full Court about prior representations of the parties in Sinclair & Whittaker [2013] FamCAFC 129; (2013) FLC 93-551 at [66]:
The fact that such statements are made to lenders or government authorities does not elevate them to a higher status. In Hayes v Marquis [2008] NSWCA 10 McColl JA said at [99]:
Statements to a government authority apparently inconsistent with a party’s case may complicate the resolution of the issue of the nature of the relationship, but they are not determinative. They are taken into account as part of all the circumstances … (Reference omitted)
[7] In the Marriage of Cierpiatka (1999) 25 Fam LR 548; Nelson and Nelson (1995) 184 CLR 538

Away from the circumstances of these proceedings, as a general proposition care is needed in relation to credit findings. They are not a relevant end in themselves and are rarely a determining factor, particularly in this jurisdiction, where the focus is usually on a history spread over years, if not decades, rather than on a particular incident. Further, in family law proceedings there can be a heightened emotional overlay to interactions between the actors which can distort recollection. The human brain is not a computer and even the memory of a witness who is otherwise motivated to give careful and frank testimony, is not always reliable. In the process of storing and recalling events, a witness is likely to innocently colour the recollection with his or her perceptions about an event. Two otherwise reliable witnesses can recall the same event in very different terms. Not all witnesses are reliable and not all are inclined or able to be independent of the cause of the person in whose case their evidence is given.
For those reasons, it is not possible to prefer the evidence of one party to that of the other on all issues. In this, as in many cases, disputes about questions of fact fall to be decided, where that is possible, issue by issue.

Relevant Law

Property settlement proceedings between parties to a de facto relationship

This Court has jurisdiction in relation to financial matters relating to de facto relationships because of Part VIIIAB of the Act. That Part was inserted into the Act by the Family Law Amendment (De facto Financial Matters and Other Measures) Act 2008 (Cth) (“the amending Act”). Part VIIIAB does not apply to a de facto relationship that “broke down” before the commencement date of the relevant schedule of the amending Act, (Item 86 of Part 2 of Schedule 1 to the amending Act); that commencement date was 1 March 2009. That raises a fundamental issue in these proceedings.
The substantive relief claimed by the applicant and for which she seeks a declaration is an order for settlement of property under s 90SM of the Act.
In the event that this Court has jurisdiction, the respondent requires the Court’s leave to institute property settlement proceedings because her application was filed out of time. Unless the parties agree, she would need to establish that she would suffer hardship if not granted leave to institute proceedings under s 90SM of the Act more than two years after the end of the parties’ relationship and therefore she should have leave pursuant to s 44(6) of the Act.
For the purposes of these proceedings, s 90SM relevantly provides:

SECT 90SM

Alteration of property interests
(1) In property settlement proceedings after the breakdown of a de facto relationship, the court may make such order as it considers appropriate:
(a) in the case of proceedings with respect to the property of the parties to the de facto relationship or either of them--altering the interests of the parties to the de facto relationship in the property; or
(b) in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the de facto relationship--altering the interests of the bankruptcy trustee in the vested bankruptcy property;
including:
(c) an order for a settlement of property in substitution for any interest in the property; and
(d) an order requiring:
(i) either or both of the parties to the de facto relationship; or
(ii) the relevant bankruptcy trustee (if any);

to make, for the benefit of either or both of the parties to the de facto relationship or a child of the de facto relationship, such settlement or transfer of property as the court determines.

Note 1: The geographical requirement in section 90SK must be satisfied.
Note 2: The court must be satisfied of at least one of the matters in section 90SB.
.....

As to sections 90SB and 90SK, they relevantly provide as follows:

SECT 90SK

Geographical requirement
(1) A court may make a declaration under section 90SL, or an order under section 90SM, in relation to a de facto relationship only if the court is satisfied:
(a) that either or both of parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the application for the declaration or order was made (the application time); and
(b) that either:
(i) both parties to the de facto relationship were ordinarily resident during at least a third of the de facto relationship; or
(ii) the applicant for the declaration or order made substantial contributions in relation to the de facto relationship, of a kind mentioned in paragraph 90SM(4)(a), (b) or (c);

in one or more States or Territories that are participating jurisdictions at the application time;

or that the alternative condition in subsection (1A) is met.
......

SECT 90SB

When this Division applies-length of relationship etc.
A court may make an order under section 90SE, 90SG or 90SM, or a declaration under section 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.

Note: For child of a de facto relationship, see section 90RB.

Declarations about existence of de facto relationships

The immediate relief sought by the parties are declarations pursuant to s 90RD. That section provides:
90RD Declarations about existence of de facto relationships
(1)If:
(a) an application is made for an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL; and
(b) a claim is made, in support of the application, that a de facto relationship existed between the applicant and another person;
the court may, for the purposes of those proceedings (the primary proceedings), declare that a de facto relationship existed, or never existed, between those 2 persons.
(2) A declaration under subsection (1) of the existence of a de facto relationship may also declare any or all of the following:
(a) the period, or periods, of the de facto relationship for the purposes of paragraph 90SB(a);
(b) whether there is a child of the de facto relationship
(c) whether one of the parties to the de facto relationship made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c);
(d) when the de facto relationship ended;
(e) where each of the parties to the de facto relationship was ordinarily resident during the de facto relationship.
Note: Forchild of a de facto relationship, see section 90RB.
90RE Effect of declarations
(1) A section 90RD declaration has effect as a judgment of the court.
(2) For the purposes of this Act (other than Part VII), a section 90RD declaration has effect according to its terms.
90RF Applying for declarations
Any party to the primary proceedings may apply for a section 90RD declaration.
90RG Geographical requirement
A court may make a section 90RD declaration only if the court is satisfied that a person referred to in paragraph 90RD(1)(b), or both of those persons, were ordinarily resident in a participating jurisdiction when the primary proceedings commenced.
As to what constitutes a de facto relationship for present purposes, s 4AA of the Act relevantly provides:
4AA De facto relationships
Meaning of de facto relationship
(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.
As is referred to by Coleman J in Barry and Dalrymple [2010] FamCA 1271 at [227], in Roy v Sturgeon (1986) 11 Fam LR 271, an early case decided pursuant to the provisions of the De Facto Relationships Act 1984 (NSW), Powell J of the Equity Division of the Supreme Court of New South Wales suggested that to dissect the phrase appearing in the New South Wales legislation:
“…living together as a husband and wife on a bona fide domestic basis” into discrete “elements” and then testing the facts of a particular case by reference to set of a priori rules in order to establish whether a particular “element” is, or is not, present, is to ignore the fact that just as human personalities and needs vary markedly, so, too, will the various aspects of their relationship which lead one to hold that a man and woman are living together as husband and wife on a bona fide domestic basis vary from case to case.
I respectfully agree with the further observation of Coleman J in Barry and Dalrymple, that: “Without resorting to dictionary definitions, ‘genuine’ and ‘bon[a] fide’ mean largely the same thing.”

What relevant facts are agreed?

It is common ground that:
a)the parties were ordinarily resident in New South Wales at all relevant times and in particular, that the respondent was ordinarily resident there when she filed her application in the substantive proceedings;
b)the parties were in a de facto relationship from 1991 to June 2002, being more than two years;
c)there is a child of the parties’ relationship, namely Mr D born in 1995;
d)the parties worked together from June 2007 until after April 2011; and
e)the parties lived under one roof from April 2009 until April 2011.

What findings are required?

The critical question to be answered in these proceedings is whether the parties were in a de facto relationship after 1 March 2009 and if so, for what period/s. It is for the respondent to establish that the de facto relationship between her and the applicant extended or resumed after 1 March 2009.
If the respondent cannot establish that fact, a declaration in the nature of that sought by the applicant will be made and the respondent’s application for leave to file her application under s 90SM will be dismissed.
If the respondent can establish that fact, a declaration will be made about the duration of the relationship. In that event the respondent can then proceed with her application for leave to bring s 90SM proceedings out of time.

Discussion

The Court is to have regard to all the circumstances of the parties’ relationship and decide whether or not in the period after 1 March 2009, they had a relationship as a couple living together on a genuine domestic basis. Those circumstances may include all or any of the s 4AA(2) matters. No particular finding is necessary and the Court is at large to identify such matters as may seem appropriate in the circumstances of the case. Similarly, the Court is permitted to attach such weight to any matter, as may seem appropriate in the circumstances of the case.
The fact that a de facto relationship existed between the parties from 1991 to 2002 provides some assistance in assessing the nature of the parties’ relationship after 1 March 2009.
Again, although both parties have sought declarations about the duration of the relationship, the applicant has no onus to discharge. The onus remains with the respondent to establish, on the balance of probabilities, that the relationship persisted after 1 March 2009.
I turn to the evidence about the period from June 2007 to April 2011, when the respondent asserts that the parties resumed their relationship. Again, because of the limit on this Court’s jurisdiction, whatever happened from June 2007, the critical issue is about the circumstances after 1 March 2009.
For convenience, I will first address the evidence about the relevant matters identified in s 4AA(2).

The nature and extent of their common residence

Following the parties’ separation in June 2002 they maintained separate residences until April 2009 when they both moved into the Suburb L property. They continued to live under one roof until April 2011.
In March 2009 the applicant purchased a property at Suburb L in his sole name. He paid an initial deposit of $58,000 on 12 February 2009. He borrowed $100,000 from Company P and the balance of $412,000 from Westpac. I am satisfied that the parties inspected properties prior to the purchase. The applicant agreed that the respondent and Mr D could live in the property. The respondent had some input to renovations made to the property prior to occupation. She assisted with timber and paint colour selections. The parties moved into the property on the same day, 24 April 2009. They used the same removalists, paid for by the applicant. The parties occupied separate bedrooms.
The evidence about life at the Suburb L property is that each of the parties did some cooking and that at least in relation to some of the applicant’s cooking, the resultant meals were shared with the respondent and Mr D. Each of the parties says they did some shopping. Otherwise, it is the evidence of the respondent that she performed all of the household chores. She was challenged in relation to her claim that she undertook a role in respect of the laundry of the applicant’s clothes. During his cross-examination, the applicant was asked several times if the respondent took his shirts to the laundry and he rejected that suggestion. It is not possible to resolve that issue. Otherwise the respondent’s evidence about household chores was not challenged. In any event I could not find any evidence from the applicant that he undertook any categories of household chores, apart from cooking and shopping. The evidence about household chores supports the respondent’s case.
There is no dispute that on occasions, the parties and Mr D ate together at the Suburb L house. On occasions the parties shared in entertaining members of their respective families at the Suburb L property. On occasions they both attended extended family celebrations away from the Suburb L property. Those facts support the respondent’s case.
The parties ceased living together at the Suburb L property when the applicant moved out on 6 April 2011. The respondent and Mr D left on 9 or 10 April 2011, whereupon the applicant returned to the property.
The parties lived under the one roof from 24 April 2009 until 6 April 2011. That fact supports the respondent’s case.

Whether a sexual relationship exists

The parties had a sexual relationship prior to June 2002. It is the respondent’s evidence that the parties were intimate on many occasions since their separation in 2002 and that their sexual relationship continued after 1 March 2009. She concedes that they regularly slept in different beds because the applicant snored. It is the applicant’s evidence that the parties had no sexual contact or intimacy after 2001.
The evidence of the parties on this issue is irreconcilable. There is no independent evidence. It is not possible to make a probative finding about this issue.

The degree of financial dependence or interdependence, and any arrangements for financial support, between them

It is common ground that for the period in dispute – from June 2007 to April 2011, the parties maintained their own bank accounts and neither of them had access to the accounts of the other, nor to the bank statements or other records associated with those accounts. That cannot significantly influence the decision about the parties’ relationship from June 2007 because those same arrangements applied from 1991 to June 2002 when the parties were in a de facto relationship.
The applicant deposed that from July 2002 until early 2009 he paid child support to the respondent. He said that, at her request, he paid her in cash. The respondent deposed that the parties:
… had a private arrangement for child support. We were still a family. Sometimes [Mr Sam] contributed to my day to day expenses. He was not generous but he would help if I requested money.
It is the respondent’s evidence that although there was initially a child support assessment, between 2005 and 2009 the parties had an informal arrangement whereby the applicant made irregular payments of child support but from time to time he did contribute directly to the costs of the respondent’s household on his regular visits.
On the respondent’s case, there was no need for formal payments of child support between 2007 and 2011 because the parties’ de facto relationship had resumed. On the applicant’s case, child support payments were not required between April 2009 and April 2011 because the parties were then sharing the care of Mr D. In any event, it is common ground that there were no payments of child support during the period that the parties lived together at the Suburb L property. The fact of there being no child support payments is consistent with a resumption of the parties’ de facto relationship.
The respondent deposed that in 2009 she used the bond refunded from her rented accommodation to help with the expenses associated with moving into the Suburb L property. Given that the applicant paid the removalists, it is not clear what expenses they might have been.
Save for the respondent’s evidence about irregular contributions, there is no suggestion that from June 2002 to April 2009 either party contributed directly to the household expenses of the other party.
Although it is her evidence that she was thereafter living with the applicant, the respondent continued to receive Centrelink payments, presumably by way of the single parent pension, after she moved into the Suburb L property. She said that the applicant expected her to meet all of the household expenses and she could not make ends meet. It is the respondent’s evidence that she was overpaid by Centrelink about $6,000 and that she intends to repay it. Further evidence on this matter was given by her orally and under a certificate issued pursuant to s 128 of the Evidence Act1995 (Cth). The receipt of Centrelink benefits payable because the payee was not living in a married or de facto relationship would normally suggest that there was no such relationship. Here the payee says she wrongly claimed those payments. This fact provides support to neither party.

Each of the parties claims that after April 2009 they paid “household expenses”. Unfortunately neither of them identified what they meant by that term. Doing the best I can, the applicant probably paid for the fixed outgoings such as the mortgage, rates and utility bills for the Suburb L property. For example, although the respondent paid her own mobile phone bills, the landline at the Suburb L property was in her name but the applicant paid the accounts for that telephone connection. Each of the parties did shopping and I take it that they both bought food and household supplies.
The payment by the applicant of all fixed expenses, including the landline telephone accounts in the respondent’s name, is consistent with the resumption of a de facto relationship between the parties. The fact that the respondent did not contribute to the fixed expenses at Suburb L and did not pay board, is inconsistent with the applicant’s case about the nature of the relationship of the parties from 2009 to 2011.

The ownership, use and acquisition of their property

The applicant is the sole owner of the Suburb L property.
It is the respondent’s evidence that the acquisition of the Suburb L property was a joint endeavour. It is the respondent’s evidence that although the applicant insisted on the property being in his sole name, joint funds, in the form of moneys drawn from Company P, were applied to the purchase of the property. In the respondent’s view, at the time of the advance from the company, she continued to hold a beneficial interest in that business. The evidence about the respondent’s separation from M Pty Ltd is inconsistent and largely untested.
I prefer the evidence of the applicant about the genesis of the 2009 proposal to buy a property. The respondent gave no detailed evidence about the project. It is likely that the purchase of a property was at least initially, solely the applicant’s proposal. However, as is referred to above, I prefer the evidence of the respondent and Mr D to that of the applicant about the search for the Suburb L property. In my view it was to some extent a joint endeavour. She said that she attended with the applicant at inspections of potential properties to purchase. Mr D corroborated the respondent’s evidence about property inspections. He recalled inspecting a property at Suburb N with the parties and another property at Suburb O. Importantly, he was not challenged about that evidence. The fact of the respondent being involved in the search for a property for the applicant to buy, is consistent with the respondent’s case.
From 24 April 2009 the parties resumed living under one roof at the Suburb L property. It is the evidence of the respondent that it was her proposal that floor boards be installed as part of renovations undertaken before the parties moved in. She gave evidence that she chose the colour of the floor boards and the paint colour scheme. It is her evidence that members of her family helped to clean up the property after the builders had finished the renovations. The applicant rejected that evidence. I prefer the evidence of the respondent on these issues. That finding is not inconsistent with the unchallenged evidence of the applicant that he paid for the installation of floor boards and he and his brother did some painting.
As is discussed earlier, I am satisfied that the parties both moved into the property on 24 April 2009; that the same removalists moved both households; that the applicant paid the removalists for both moves; and that the applicant’s brother, Mr U and members of the respondent’s family, assisted with the moves. Taken together, those facts are consistent with a resumption of a de facto relationship between the parties.

The degree of mutual commitment to a shared life

It is difficult to identify precisely what, if any, shared commitment existed between the parties about their relationship at any stage. Theirs was a fractious relationship.
Several witnesses said that they heard the applicant say throughout the period from 2002 to 2011, that the parties and Mr D “remained a family” for the purposes of Mr D’s support.
It is the respondent’s case that in 2007 the parties resumed the relationship that had broken down in 2002 and that the relationship remained on foot until final separation in 2011. On the other hand, the applicant contends that out of sympathy for the mother of his child, he offered the respondent a job in 2007 and in 2009, agreed to let her move into Suburb L with Mr D, when they were being evicted from their Suburb O unit.
It is possible that they are both correct. If so, perhaps then the only shared commitment was to sharing Mr D’s parenting and support.
In 2007 or 2010, the applicant and Ms T commenced a friendly relationship. In light of s 4AA(5)(b), that fact is not inconsistent with a finding that the parties were in a de facto relationship at any time that coincided with a relationship between the applicant and Ms T.
These facts are equivocal in relation to the mutual commitments of the parties.

The care and support of children

The respondent’s evidence does not clearly mark a change in arrangements from 2007, save that she and the applicant resumed working together. It is the respondent’s evidence that following the parties’ separation in 2002, the applicant commenced spending time with Mr D. She deposed that within a few months of the separation the applicant began spending time with Mr D and the respondent at the respondent’s Suburb O apartment.
According to the respondent, during the period from 2002, the parties and Mr D ate meals together, the applicant started to stay overnight and “we continued as a family”. It is the respondent’s evidence that when the applicant stayed overnight he slept with her and sometimes they had sex. It is the respondent’s evidence that over this period, the parties had very few holidays apart. Therefore, on the respondent’s own case, it was not mutual contact with Mr D that marked a resumption of the parties’ de facto relationship. She says that the resumption did not occur until 2007.
The applicant disputes the thrust of the respondent’s evidence about what occurred after separation in 2002. He contends that he spent time with Mr D on weekends and otherwise, but away from the respondent.
From 2007 when the parties resumed working together, the applicant took Mr D to school on some mornings.
In 2008 the applicant moved into an apartment at Suburb Q. He says that the respondent would regularly bring Mr D to his apartment for Sunday breakfast, which he would cook and the parties and Mr D would spend an hour or more together. He says that later that year Mr D no longer wanted to come for breakfast so he commenced the habit of taking take-away meals to the respondent’s Suburb O apartment for Mr D and also for the respondent. He deposed that on no more than four or five occasions did he stay overnight at the Suburb O apartment.
Mr D attended V School for years seven to 10. The applicant paid the school fees and attended parent teacher interviews as often as possible.
From April 2009 the parties lived under one roof with Mr D and their evidence, although conflicting, supports a finding that they shared the care of Mr D until they separated in 2011. The applicant says that there were other trips but the parties, Mr D and a cousin experienced a holiday together.
These facts are consistent with the respondent’s case.

The reputation and public aspects of the relationship

Several witnesses expressed the opinion that the parties and Mr D remained a family for the purposes of the child’s support, throughout the period from 2002 to 2011. Given that there is no suggestion that the de facto relationship existed between 2002 and 2007, this does not strongly support the respondent’s case.
It is the respondent’s case that she and the applicant went with the applicant’s daughter, Ms E and her husband to a rugby game, with others, in July 2009. The applicant rejected that evidence and the proposition was put to Ms E in evidence and she had no recollection of such an event. No finding is possible on those facts.

Other matters

It is the respondent’s case that the parties had worked together in running M Pty Ltd and that she resigned from the business at the applicant’s request in or about December 2003. The respondent was largely unemployed thereafter.
It is the respondent’s case that the parties’ de facto relationship resumed in 2007 when she supported the applicant in his decision to buy Company P with her son in law, Mr G. Mr G had worked at Company P, with the applicant since 2004. It is the respondent’s evidence that she and the applicant together, consulted with Mr G at his home, after which Mr G agreed to buy 30 per cent of the business and to become a director. It is the respondent’s case that upon the purchase of the business she resumed the roles she had undertaken for M Pty Ltd. She says that she understood that she continued as a director and shareholder of the renamed entity and that she ran the business. There is no formal evidence that the respondent was a shareholder or director of Company P. The respondent was not challenged on her evidence that she did the accounts and the applicant dealt with the customers, selling and networking, as they had respectively done at M Pty Ltd.
It is the respondent’s evidence that the income paid to her by the business was applied to the expenses of her household including food, clothing and utilities. She deposed that by that time (presumably 2007 – 2009), the applicant was spending most of his time at the home occupied by her and Mr D. She said that he regularly stayed overnight, several times a week.
The parties visited the home of the respondent’s daughter and son in law, Ms G and Mr G and discussed Mr G buying 30 per cent of the business.
It is the applicant’s evidence that his purchase of Company P was entirely independent of the respondent and that he had negotiated the purchase with the owner from 2006. He said that the idea to have Mr G buy a share of the business was part of an exit strategy he had discussed with his accountant and with Mr G. In that regard I note that there is a document in evidence prepared by the company accountant in 2008 about an exit strategy for the applicant[8]. In oral evidence the applicant agreed that he and the respondent talked about Mr G buying into the business on an occasion at Mr G’s house but he insisted that he had already discussed the matter with Mr G at work. Mr G rejected the applicant’s testimony about them having discussions about this issue at work. Unfortunately, Mr G was not a credible witness.
[8] Annexure H to the applicant’s affidavit dated 18 September 2015
The applicant signed Christmas cards to the respondent in 2007, 2008 and 2009 with “love [Mr Sam]”. It was his evidence that “love [Mr Sam]” was his usual way of signing off. The submission would be that those words were not an indication of a loving relationship with the respondent or members of her family. In my view nothing can be implied from the evidence about this issue. It could be equally submitted that if the parties were in a de facto relationship at the time, it might be expected that his communication to a third party would be expressly made on behalf of him and the respondent – “love from [Ms Lamothe] and [Mr Sam]” or “love from us” or something of that nature. No probative findings about the nature or duration of the parties’ relationship are available from that evidence.

Conclusion

Every relationship is different and s 4AA of the Act expressly provides that there is no essential criterion for a finding that a de facto relationship existed. An important element of the circumstances of these proceedings is the agreed fact that the parties were earlier in a de facto relationship of some 10 years’ duration.
On his own case, the applicant made arrangements for the respondent to work at Company P in 2007 and when he was keen for Mr D to move into the Suburb L house in 2009, he agreed to the respondent coming as well.
Even accepting his evidence in its entirety, one or both of those actions may have been sufficient to revive an earlier de facto relationship. Moving beyond the applicant’s evidence about his motivation, the fact that the respondent remained living at Suburb L until April 2011 is consistent with her case. Given that the applicant described the arrangement as her boarding with him, it is consistent with the respondent’s case that she made no payments to the applicant for living at Suburb L.
The parties each contributed towards life in the Suburb L property in a way that benefited the other.
It is not inconsistent with the respondent’s case that the parties shared a family holiday to the snow and that on other occasions they socialised together with their extended families.
The parties did not own property together and they did not mingle their finances in the sense of having joint bank accounts or access to each other’s bank records. However, those facts alone are not important. Those same circumstances applied between 1991 and June 2002 and it is agreed that the parties were then in a de facto relationship at that time.
The parties enjoyed a de facto relationship from 1991 to June 2002. Taken together, the evidence supports a finding that the relationship was restored, if not earlier, by 24 April 2009 and that it persisted until 6 April 2011.
Having considered the requirements of s 4AA of the Act, I find that the respondent has established that proposition, on the balance of probabilities.

I certify that the preceding one hundred and twenty-one (121) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 15 July 2016.

Associate:

Date: 15 July 2016