SAMPSON & SAMPSON

[2021] FCCA 1471

FEDERAL CIRCUIT COURT OF AUSTRALIA

SAMPSON & SAMPSON [2021] FCCA 1471

Catchwords:
FAMILY LAW – Following 10 year marriage parties divorce and recommence living together a year later – wife alleges party resumed a de facto relationship – raised their 3 children together – lived together for 14 years in the former matrimonial home – purchased additional property during the 14 years- travelled on at least 10 holidays together in that time mostly without their children – wife files for property application – husband denies they were in a de facto relationship and says they lived together for 14 years as companions – parties found to be in a de facto relationship.

Legislation:

Family Law Act 1975 (Cth), ss.4AA (1) (2) (3) (4), 90RD, 90SM

Cases cited:

Herford & Berke (No.2) [2019] FamCAFC 182

Lynam & Director-General of Social Security (“Lynam”) [1983] 52 ALR 128

Rooks & Padley [2014] FamCA 444

Sanil & Lennon [2019] FamCA 556

Shee & Hale [2020] FamCA 84

Sinclair & Whittaker [2013] FamCAFC 129

Applicant: MS SAMPSON

Respondent: MR SAMPSON

File Number: CAC 1456 of 2019

Judgment of: Judge Willis AM

Hearing dates: 31 August – 7 September 2020

Date of Last Submission: 7 September 2020

Delivered at: Cairns

Delivered on: 29 June 2021

REPRESENTATION

Counsel for the Applicant: Mr Stagg

Solicitors for the Applicant: Legal Aid ACT

Counsel for the Respondent: Ms Davis

Solicitors for the Respondent: Hijazi Curran Cameron Lawyers

ORDERS

1. Pursuant to section 90RD of the Family Law Act 1975 (Cth) the Court declares that the parties were in a de facto relationship from 2006 until 3 May 2018.

2. The Application by the Respondent for a declaration that the parties did not live in a de facto relationship following separation in 2003 is dismissed.

3. The Application by the Respondent for a declaration that the parties concluded their relationship at the date of separation on 31 July 2003 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Sampson & Sampson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CAIRNS

CAC 1456 of 2019

MS SAMPSON

Applicant

And

MR SAMPSON

Respondent

REASONS FOR JUDGMENT

1. The applicant in this matter (Ms Sampson) was married to the respondent (Mr Sampson) in 1993.  The parties separated on 31 July 2003[1], having had three children Mr B born in 1991, Mr C born in 1997 and Mr D born in 1999.

   [1] Husband’s affidavit filed 22 November 2019, paragraph 10.

2. A divorce application was filed on 10 December 2004. Their divorce order was made on 2 February 2005 becoming final on 3 March 2005. 

3. I have decided to refer in this judgment to the applicant as the “the Wife” and the respondent as “the Husband” as was adopted during the trial. 

4. The Wife’s case is that having initially moved out at separation from the former matrimonial home at the point of their difficult separation in July 2003, that by agreement she moved back into the former matrimonial home in April 2004 for what was intended to be a temporary arrangement, slept in a separate area at the back of the home and that for a period they agreed to live separately under the one roof. 

5. This temporary arrangement starting in April 2004 was intended to last until they could finalise their property settlement and to give the Wife somewhere to live. At separation, the Wife was left without anywhere to live. It seems she had no money and only limited income. The Wife lived in a women’s shelter and with friends thereafter following separation in July 2003. When the Wife moved back in with the Husband and children it also enabled the parties to share the care of their three children, apart from when the Husband was working away interstate, when the Wife would have been the primary carer.

6. The applicant says however, that after a period of time (initially estimated at 12 to 18 months) their relationship had gradually changed back to living together as a couple living together in a genuine domestic relationship. The Wife says whilst they didn’t remarry, in all other respects their relationship did resume and they lived together, under the one roof as an intact couple but this time in a de facto relationship rather than in a marriage.   

7. As the evidence shows, when pressed to do so, it has been hard for the applicant to definitely specify a particular date when they started living together as a couple in a genuine domestic relationship. Initially the Wife said their relationship had fully resumed by October 2005. During the trial she conceded it may have been later than that being no later than the end of 2006. The Wife says that their relationship changed gradually to the point of fully resuming their relationship, living together as they had when they were married. The Wife contends that thereafter over the ensuing 13 or so years, she and the Husband shared family responsibilities in raising and educating their three children, shared their family financial obligations, lived in a family circle with their own children and extended family and engaged in a sexual relationship. The Wife says that she and the Husband had holidays together with their three children including overseas holidays. Also she and the Husband had overseas holidays with just herself and the Husband. The Wife was adamant that she would not have stayed on living with the Husband for 14 more years if they were just friends or “companions”. 

8. The Husband says that whilst he agrees the Wife moved back into the former matrimonial home initially temporarily for all the reasons given by the Wife, that the parties did not ever resume living together in a relationship as a de facto couple. He says they lived separately and lead largely separate lives whilst living in the same home. He says that they lived together as companions and they never resumed their sexual relationship.

9. The Husband says this living together as friends continued from the time the Wife moved back in around April 2004, until the Wife moved out in May 2018, a period of around 14 years. The Husband denies that the parties ever resumed a relationship as a couple living together in a married like relationship as they had done previously or living together in a de facto relationship.

Background

1. The Husband was born in 1970 and was aged 50 years at the time of the trial.  The Wife was born in 1973 and was aged 47 years at the time of the trial. They were both young when they married in 1993, the Husband being aged 23 and the Wife aged 20.

2. The parties separated on 31 July 2003 after being married for 10 years. The Husband was then aged 33 and the Wife was aged 30. Their children were still young at aged 11, 6 and 4.

3. The Wife said in her evidence that they did at times have ‘massive arguments’ about the affair that she had in 2002, and that was because it was a big issue as part of their marriage relationship was that they were in an exclusive relationship.

4. At separation in July 2003, the Husband says following a dispute he contacted the Police and alleged that he was punched in the head and scratched on the back by the Wife on 31 July 2003 during the events of their final night together, when no doubt emotions were high. The Police accepted the respondent’s version of events and the Wife was charged with assault.  A Domestic Violence Order was taken out in favour of the Husband.

5. Having read the Husband’s application for a Domestic Violence Order, there is no history of domestic violence set out in his application. Nor did the Husband state that he had been assaulted many times. The Husband’s evidence[2] was he reported the incident at separation to the Police in July 2003, and that Ms Sampson was charged in August 2003. He said “Ms Sampson assaulted me many times during the relationship and I finally made a report to the Police following an assault on 31 July 2003”.[3]  He annexed the copy of the Wife’s bail conditions dated 1 August 2003 and his DVO application to his affidavit.

   [2] Husband’s affidavit filed on 22 November 2019, paragraph 9.

   [3] Husband’s affidavit filed on 22 November 2019, paragraph 9.

6. The Wife denied she ever hit or scratched the respondent and said the Husband made the story up. The Wife said the Husband during their argument had pushed her on to the bed and that she ran out of the house because she was scared. After leaving the house, the Wife said she got messages from the police asking to speak to her and subsequently found out the Husband had reported an assault by her on the Husband.[4] The Wife was charged with assault and released on bail and the conditions of her release were that she was not permitted any contact with the Husband nor was she to be within 100 meters of the former matrimonial home, where the Husband and their three children remained living. The Wife was permitted to have contact with her children but not at the matrimonial home and any contact with the Husband was to be through legal advisors. There is no evidence that the charge of assault was followed through.

   [4] Wife’s affidavit filed 28 February 2020, paragraph 6.

7. Prior to this incident, it seems that the Wife was the uncontested primary carer of the three children whilst the Husband seems to have been the primary income earner for the family.

8. Prior to the Wife moving back in to the former matrimonial home, a dispute arose regarding the children’s living arrangements. The Husband had retained all three children with him in the former matrimonial home.  The Wife unexpectedly collected the youngest child (Mr D) from preschool, contrary to at least the Husband’s plans where all the children were living with him. That left the two oldest children, Mr B and Mr C, living with the Husband and their youngest child, Mr D, living with the Wife. At the time of separation in July 2003 Mr B was aged 11, Mr C was aged 6 and Mr D was aged 4. 

9. Thereafter litigation commenced about the children. Interim Orders were sought. That litigation resulted in the parties agreeing to a week-on/week-off arrangement in September. Ultimately the parenting litigation ended through the filing of formal Notices of Discontinuance by each party in October 2003. 

10. By April 2004 and with the agreement of the Husband, the Wife moved back into the former matrimonial home where the Husband and their children were living. On my calculations the Husband was then aged around 34 and Wife was aged around 31. 

11. It is agreed that no child support was paid post separation. Any Application for child support made by the Wife was on the basis that she had to do so in order to receive Family Allowance. The Wife did not receive child support and the Husband did not pay child support.

12. On the Wife’s evidence she received Family Allowance between the years 2003 and July 2006 and up to December 2007.  Her evidence is that whenever she received Family Allowance, that she never claimed anything that she was not entitled to claim. The Husband does not allege any Centrelink impropriety on the part of the Wife.

13. In relation to property matters, the former matrimonial home is in both names and the mortgage is in both names. A property acquired while they lived together in 2014 at City E was purchased in the names of the Husband, Wife and the Husband’s father and they had a shared mortgage. 

14. The parties agree there were discussions about a property settlement between the parties and there was an intention to have one party buy out the other party’s interest in the former matrimonial home. It is agreed however that no formal property division or settlement was concluded by way of Orders or Financial Agreement.

15. Up until the trial, the Husband’s position had been that he had paid out the Wife her property settlement and that to his knowledge, it was formalised in 2004 when he paid her the sum of $56,300 in late 2004 by obtaining a CBA loan in his name. The Husband went on to say they each had solicitors at the time and “we are in the process of trying to obtain the file from my previous lawyer”. The Husband said “as a result of obtaining a loan in my name of $56,300 of this loan I transferred approximately $50,000 to Ms Sampson”. He continued on to say that he had transferred her the remaining money owed and the Wife used this to buy a new motor vehicle. The Husband said he “retained the Suburb F Property, my vehicle, the furniture and furnishings, everything contained within the garage and some savings I had.” The Husband proceeded to state that despite reaching their agreement, “the property was not formally transferred into my sole name”. The Husband added “I do not remember signing any property settlement Orders or agreement”.[5]

    [5] Husband’s affidavit filed 12 August 2020, paragraph 14.

16. As will be seen elsewhere in this judgment, the Husband changed this evidence during the trial and stated that he did not pay the $50,000 to the Wife but from memory used around $30,000 for a loan but he did pay $20,000 to the Wife. He continued to say the balance was paid sometime after that.

17. The Wife denied that she received any property settlement from the Husband. The Wife said any loans taken out were for other purposes and that money used to pay her car loan was matched by other funds used to pay out the Husband’s car loan.

18. The parties agree that when the Wife moved back into their home in April 2004 they initially lived separately in all respects. There is dispute as to the Wife’s position that they re-commenced their couple relationship 12 or 18 months later.  

19. On 10 December 2004 the Wife sought and lodged an application for a divorce claiming that she was living under the same roof and separated.  The divorce was issued on 2 February 2005 and became final a month later on 3 March 2005.

20. In the Divorce Application their separate arrangements are referred to with the Wife stating each child has their own room, the Husband one room and the Wife the other end of house. As to the arrangements with the children, the Divorce Application states that the weekdays were shared between the Wife and Husband, and they alternated the weekends about.

21. Initially, the Wife’s case was that the nature of their relationship changed back into that of a couple living together in a de facto relationship this time, probably in mid to late 2005 being some 12 to 18 months after she moved back into the former matrimonial home. During cross-examination, when the Wife was asked what the last date it (the reconciliation) would have been, the Wife replied “I didn’t have all the documentation. I would have to say by the latest by the end of 2006”.

22. The Wife regarded the point in time she moved back into the master bedroom with the Husband and their sexual relationship resumed, as the point that she recalls and considers they resumed their life as a couple in all respects and thereafter lived in a genuine domestic relationship up until May 2018.

23. The Husband is firmly of the view that their relationship never changed from the status of each of them living separately under one roof.  He says they never merged their lives back together to the point where they were living together in a de facto relationship. The Husband says that the parties stayed living as companions for the sake of the children, and so they could raise the children together and that this is what they did.

24. His case was also that he needed time to secure the financial loan to pay out the Wife, and it put a spanner in the works when he could not get additional finance to pay out the Wife as was initially proposed in 2003 and 2004 when they were each legally represented. He gave evidence of the fairly tight financial situation the parties were in at separation. They had two mortgages and believes he tried to take out a third mortgage.  The Husband explained they had various car loans and personal loans as well. It seems that their mortgage facility or loans were being increased quite regularly during their time together before separation, and also after separation and whilst the parties continued to live together in the former matrimonial home from 2004 until May 2018.

25. The Husband has given evidence that he had various relationships with other women during the 14 years that he and the Wife lived together.[6]  The Wife believed she was in an exclusive relationship with the Husband after they resumed their relationship.

    [6] Husband also remembered another relationship (not mentioned in his Affidavit) during his evidence.

26. Their eldest son Mr B was born in 1991.  He moved out of home in either 2009 or beginning of 2010 to attend the Employer G.  After that it seems he came home from time to time. Mr B gave evidence at the trial in support of his mother.

27. The Wife moved out of the former matrimonial home in May 2018.  Sometime after that during 2018 the Husband’s current partner Ms H, moved into the former matrimonial home to live with the Husband. They married during 2020.

28. In 2018 the Husband was diagnosed with the early stages of a medical condition.

29. This challenge to the Wife’s belief that she was living in a de facto relationship with the Husband appears to have first surfaced when the Wife filed an initiating application on 29 July 2019 seeking a property division following their final separation in May 2018.

30. The Husband’s Response filed on 22 November 2019 was effectively that he will keep the Suburb F Property, being the former matrimonial home, and the X Street, Suburb Y, City E Property (along with his father) and in return for the Wife transferring her interest in both these properties to the Husband, the Husband will take over the joint debts on the properties. The Wife is to receive no property. The Husband also proposes then that each party keep their own superannuation and any other financial resources in their name or control.  

Orders sought

1. The Wife seeks a declaration pursuant to Section 90RD of the Family Law Act 1975 (Cth) (“the Act”) that the parties were in a de facto relationship in the period from 2005 (or later as determined by the Court) until 3 May 2018.

2. The Husband also seeks a declaration pursuant to Section 90RD of the Act that they did not live in a de facto relationship after the Wife resumed living in the former matrimonial home. The Husband seeks a declaration that the relationship between the parties concluded at their separation date on 31 July 2003 and thereafter a de facto relationship did not ever commence.

3. The matter was listed for hearing for one day hearing on the discrete issue.  The matter was heard by Microsoft Teams between Canberra and Cairns. It has however taken five days to hear the evidence with submissions on day six. The Wife has been represented by Mr Stagg of Counsel and the Husband has been represented by Ms Davis of Counsel. 

4. The Wife who is seeking to rely on the fact of the de facto relationship being in existence, carries the burden of proof in the matter.

5. At the outset I must state that in this difficult and finely nuanced matter the Court has received significant assistance from both Counsel in representing and advancing their respective clients’ interests. In my view, there is nothing further that Mr Stagg of Counsel for the Wife or Ms Davis of Counsel for the Husband could have done to better represent their clients’ interests.

6. Each of the parties filed Case Outlines and the material relied upon is indicated on those outlines, including additional affidavits filed by leave for Ms J and Mr K on behalf of the Husband. 

7. The Husband did not rely on the affidavit of Ms L or Mr C. The Wife did not rely on the affidavit of Ms M. 

8. There are significant exhibits, as seen on the Exhibit List[7] and, importantly, tender bundles for both the Wife and the Husband which have been referred to throughout the proceedings.

   [7] Significant bundles of bank statements.

9. In September 2020, Counsel provided further short submissions and access to an Excel sheet.  

10. In this judgment a statement of fact represents a finding, unless stated otherwise.

1. The Husband submits that the Wife has the onus of proof in establishing the period when their separated relationship ended and that their couple relationship recommenced. I accept that it is for the Wife to prove on the balance of probabilities that she and the Husband did live in a de facto relationship in order for a Declaration to issue.

2. Deciding and finalising this matter has taken many months. This judgment started with a draft dictated at the end of the trial pages, which has been gradually added to after reviewing affidavit material and case outlines and re-reading my comprehensive notes of over 50 pages taken during the trial.   I have also re-read the transcript and re-listened to parts of those submissions of each Counsel at the conclusion of the trial. In addition I have also re-listened to large slabs of evidence of both the Husband and Wife.

Consideration of the evidence  

The credit of the parties

1. Each of the Husband and Wife gave evidence. The task of combing through a multitude of documents in 2020 relating back to 2003 up to 2010 and beyond has been difficult for both Counsel and each party. Neither party had any reason to imagine that particular aspects of their relationship and communications with social security, the child support agency, their accountant or others would be put under the forensic microscope 17 years or so later.

2. In relation to credit generally, it is clear that each party has a different view as to the nature of their relationship. I have dealt with the credit of each party all through the judgment in relation to the various issues and evidence given.

3. In giving her evidence, the Wife’s very strong position and palpable frustration and insult arising from (on her case), the Husband now maintaining that that the relationship they were in never changed back to that of a couple in a genuine domestic relationship at any time over the 14 years that they lived together, was obvious.

4. The Husband who had clearly spent more time going through the documents appeared more composed than the Wife. He appeared to have more knowledge of their financial matters at and after separation including the number of mortgages and personal loans that were in existence at the time. However, as will be seen, he was at times seemingly confident but very wrong. On the second day of the Husband’s lengthy cross-examination the Husband, for no particular reason, started calling Mr Stagg of Counsel by his Christian name.  The Husband gave responses such as “Greg I am sorry about that and Greg I would be angry”[8].  On the third occasion that the Husband did this in a period of six minutes on day 3 of his cross examination, Mr Stagg reminded the Husband that in Court he must adopt the formalities. This was a small glimpse of the Husband starting to show his confidence.

   [8] Transcript 4 September 2020, 11.20am.

The nature and extent of their common residence

1. It is not contested that the Husband and Wife have been living together for 14 years after the Wife moved back into the former matrimonial home. Together they have been raising their children, sharing expenses in an agreed fashion to ensure that all of their mortgage obligations are paid, their health insurance for the family is paid, and the children’s schooling is paid for and completed.

2. In the agreed period that the parties lived separately and apart but under the one roof, and in the disputed period being time on or after October 2005 up to May 2018, the parties agree that they have remained living together in the former matrimonial home.

3. During these years the Wife says they lived together with the usual ups and downs of normal life, raising and educating their three children, working in their respective work roles whilst jointly caring for the children and the different aspects of their lives including the children’s extracurricular activities. The Wife says that their children grew up in the centre of their family circle. The Wife performed her role as the mother of the children and the Husband fulfilled various other obligations and roles, both intimately involved in the children’s lives.  She says that the whole family travelled away on holidays and that at other times just herself and the Husband went away on holidays. The Wife says there was no hiding their relationship, and they presented as the couple that they were to their family and friends. They attended family and social functions as a couple because they were in a genuine couple relationship as they had been when they were married.

4. The Wife says that they owned property together the whole time, being the former matrimonial home in which they each lived. The Wife says that she and the Husband agreed to buy a property together along with the Husband’s father in 2014, (that was for the Husband’s father to live in) when the parties continued their de facto relationship.

5. As to the specific arrangements surrounding the Wife moving back in to the former matrimonial home in April 2004, the Wife accepted she had lived in the backroom of the home when she first moved back in, however, over time she resumed sleeping in the master bedroom with the Husband. 

6. The Husband said when the Wife first moved in he put a fold out bed in the rumpus room, with some drawers. He said she slept in the spare room albeit that the spare room seems to have changed identity over the years.    The Husband said the spare room changed when Mr D moved into Mr B’s old room and the Wife moved into Mr D’s room and that people moved around in the bedrooms over time. The Husband said the Wife did use the spare room to keep her clothes in at different times. It seems their eldest son Mr B moved out to join the Employer G in 2010. 

7. The Wife says that the period that Husband and Wife lived together in the same house as a de facto couple was from when they resumed their sexual relationship until they separated in May 2018.

8. As to specifically when that was, the Wife agreed, they lived separately  until late 2004 however, she says that  sometime in 2005 or possibly later in 2005 or at the latest the end of 2006, their state of living separately under one roof slowly changed to resuming all of their relationship.  The Wife says it is not possible to pin point a precise date.

9. The Wife’s evidence as to her recollections as to when the Husband and Wife resumed living together in a genuine domestic relationship, was challenged largely on the basis of documents about which she was carefully cross examined by Ms Davis of Counsel for the Husband.  It seems these documents were in the possession of the Husband for some time. As will be seen, they are documents regarding Family Allowance, Child Support and Government benefits.

Cross examination on documents

1. I have had regard to the lengthy cross examination of the Wife regarding various documents including those attached to the Husband’s affidavit and those in the voluminous tender bundle.

2. The Husband points to evidence of payments that are only available to a single income family and not to people who are holding out that they are in a domestic relationship.

3. The Husband points to Centrelink documents[9] which he says are important which show regular payments of Family Assistance for the Husband  $99.00  (noting his income exceeds the limit) referring to 31 October 2003 and largely the same period for the Wife of $207.10 which consists of rent assistance and regular Family Tax Benefit payments. The Wife’s documents show “no income required”.  Counsel for the Wife says that these documents show the parties did not have a combined income, and that the Wife had no other substantial income.  It is the Husband’s case that the Wife was honest in all her dealing with Centrelink. No fraud is alleged.

   [9] Husband’s affidavit filed 12 August 2020, annexures page 42 and 44.

4. By the time of the trial in June 2020, each party was attempting to retell the history of their personal and couple circumstances and relationship, going back over some 15 years since their divorce in February 2005.

5. The Wife was routinely not able to give precise dates. The Wife said she told Centrelink and the tax office that “we were back in a relationship”. That is confirmed by a letter from Centrelink dated 28 October 2005 addressed to the Wife, but which appears as an Annexure in the Husband’s affidavit filed 22 November 2019.[10] 

   [10] Husband’s affidavit filed 22 November 2019, annexure page 84.

6. The letter states in part:

   Thank you for your recent information that you provided about your living arrangements.

   After careful consideration a decision has been reached that your parenting payment single will continue. You are currently being assessed as single and separated under one roof.  For Centrelink purposes, this is a temporary assessment pending actual physical separation. This information is based on the information you provided. I formed the opinion that you are not living in a marriage like relationship at this time.

   The period immediately following separation in 2003 until the Wife moved back into the former matrimonial home in April 2004 is not in contest. It is agreed the Wife was not living at the former matrimonial home in this period.

7. This letter from Centrelink is said by the Husband to be another crucial document as the Husband says when the Wife moved back in, Centrelink had to be informed[11]. 

   11 Exhibit H1.

8. On behalf of the Wife, depending on the Court’s findings, it is submitted by her Counsel that the commencement of living their lives as a de facto couple occurred possibly in July 2006 or later in October 2006 or February 2007. Counsel for the Wife submits that the latest the Court would find that the parties resumed living as an intact couple (rather than separated under one roof) is 2008 into 2009. It is submitted that the relationship slowly merged from the parties living separated under one roof, back to them living in a genuine domestic basis as a de facto couple.

9. Under cross examination, the Wife struggled to give clear evidence on specific dates as to when the parties stopped living together as a separated couple, reconciled and resumed their couple relationship.

10. In looking at the indicators of their separated relationship changing into a genuine couple relationship, the Wife points to her moving from living in the opposite end of the house and separately from the Husband, to moving back into the master bedroom. The Wife says they re-commenced their sexual relationship, it having ceased during the period post separation and when they lived separately under one roof.  As from the time of that physical move back to the master bedroom and the resumption of their sexual relationship, the Wife said she considered that their couple’s relationship had re-commenced as compared with living separately under the one roof.

11. As seen in her Divorce affidavit filed 17 January 2005[12]  the Wife said that the marriage had completely broken down and “we have not had sexual relations for the entire time since I had an affair”.  Added to that are the words “We do not love each other anymore and I consider Mr Sampson as a friend only. We put our differences aside for the sake of the children, and for this reason we are very civil and quite happy to live separately in the same house until we can both afford to move.”  The Wife also said that “I moved back into the family home living at the opposite end of the house, separately from him.  Due to financial reasons and the kids neither of us can afford to move out at this time. We will sell the house once we do it up”.

    [12] Attached to the Husband’s affidavit filed 22 November 2019, annexure page 73, Part D.

12. The Wife said in the Divorce affidavit that “I do the majority of care for the children and Mr Sampson does activities. He takes them out on weekends.  We both help the children with their school work.  Mr Sampson is doing a Tafe course at night and is usually out 3 nights a week.”

Social Security and similar documents

1. One of the Husband’s main areas of cross examination of the Wife and evidence upon which he has based his case, involved the Husband’s Counsel taking the Wife through a range of documents and bank statements critically looking at them from the perspective of trying to re-enact or re-trace the decisions and whether they were living as an intact couple, based solely through such documents. The documents which form part of these type of exhibits include Centrelink documents regarding payments of Family Allowance, single parent payments, a child support application and a vast amount of bank statements. 

2. The agreed positions is that when the Wife moved back in April 2004, Centrelink forms had to be put in by both parties to indicate that they were living separately under one roof[13]. 

   [13] Exhibit H1 pages 67-83,

3. I have considered all of that evidence which was presented very carefully to the Court by Counsel for the Husband and read the documents. I have taken account of the Centrelink document page 84 of the Husband’s affidavit, which sets out the agreed position as of 28 October 2005 and which relates to her entitlement as at that time. It is clear that Centrelink were content that the Husband and Wife were living separately under the one roof.  This is in accordance with the Wife’s evidence.  This is said to be a crucial document, as it confirms that more than a year later after 2004 and indicates the continuation of the Wife’s single parenting payments following the provision of further evidence by the Wife about her living circumstances.

4. In her oral evidence, having regard to the documents put to her, the Wife conceded she might have miscalculated the date their living arrangements changed. Her trial affidavit refers to 2005.  The Wife acknowledged they must have resumed their couple relationship after 2005. The Wife did say on various occasions “I can’t give you the exact date” and “he had the documents” and “I have miscalculated the date”.

5. The Wife was taken to another Centrelink document[14] addressed to the Wife showing that in 2006 the Wife is still getting single parents pension.  The Wife maintained that she had told Centrelink her situation had changed when she did start living with the Husband as a couple. Consistent with that evidence in that letter the Wife acknowledged that it would suggest the relationship must have commenced after July 2006.

   [14] Husband’s affidavit filed 22 November 2019, annexure H page 85.

6. Two further documents were put to the Wife said to be evidence that the Wife was in receipt of a Single Parent payment or a Family Assistance Payment only made possible to single parents.  One was from two current ministers, one the Minister Families and Housing and the other being the Minister for Human Services dated March 2009 announcing that the mother had received two bonuses resulting from the Household Stimulus Package announced as part of the then Government’s National Building and Jobs Plan on 3 February 2009.[15] One was a back to school Bonus to all Australians who were entitled to Family Tax Benefit Part B for a child between 4 and 18; the other a Single Income Family Bonus – to all Australians who were entitled to Family Tax Benefit Part B on 3 February 2009. The letter stated “If you share the care of a child, the amount you received will be based on your shared care percentage of Family Tax benefit”.  When questioned about whether she had received these bonuses, the Wife she did not remember.

   [15] Husband’s affidavit filed 12 August 2020, annexure C page 28.

7. When the Wife was asked about the first two lines of the letter about the bonuses, the Wife said “I never got it”.

8. The Court is asked by Counsel for the Husband to query the Wife’s credibility because she changed her mind as to whether she had received it and then denied it. It is submitted that because of this evidence, the Wife’s evidence cannot be accepted about what she did and when she did it.  I do not agree.  As I have said elsewhere, asking anyone to identify and recall all of the precise circumstances that were in play when dealing with an entity such as Centrelink and their myriad of letters going back 11 years, is no simple task.

9. Nor do I accept that the Wife’s credibility on this topic is damaged such that all her evidence as to when the relationship re-commenced is affected.

10. There were many historic documents produced in this matter, and attempts to link documents to a particular stage of their relationship was a difficult and time consuming exercise and involved significant recall of events 10-15 years ago.

11. The Wife did not have the ability to clearly recall each and every stage of her ongoing communication or engagement with Centrelink about Family Allowance or a single parent income.  My impression of the Wife is that, unlike the Husband, she was not overly concerned with the specific details or machinations of the workings of Family Allowance, child support, or the bonuses issued by the Government in the Nation Building Drive. The Wife did not impress me as being aware of the minutia of her financial life or social support or entitlements at that time.

12. I did not consider though that she was being dishonest. When propositions were put to the Wife such as “You were separated still in August 2010 otherwise the family allowance office would not have talked to you about child support”. The Wife said firmly that she was not separated in 2010.[16]

    [16] I accept the evidence that the reason Child Support letters were written were because it was a requirement for the Wife to do so, in order for her to receive Family Allowance, as set in the judgment.

13. It was put to the Wife that “so both these letters are wrong”.The Wife replied “I don’t remember.” Significant propositions were put to the Wife, based on inferences in what were largely generic documents.

14. I accept the Wife’s evidence that she was honest when she said she was not really sure as to a specific date and that she may have made some mistakes about her belief that they were back together as early as 2005.   The Wife made concessions about her errors in memory when documents were produced that suggested she was still getting a benefit.[17]  As Counsel for the Wife has said very specifically on behalf of the Husband, they are not querying her honesty in relation to what she received from Centrelink. No fraud or dishonesty is suggested. I consider that the Wife giving her evidence honestly and to the best of her recollection on this topic.

    [17] The “back to school bonus” letter and the Household Stimulus Package letter.

15. Similarly when taken to the second document dated 21 June 2008 being a letter from Family Assistance[18], the Wife accepted that the document shows she is in receipt of Family Tax Benefit A and B and that there is an indication that the Wife did not receive child support for Mr D.  The reference to that is at the bottom of the document in what is seen as an explanation that “to get more than the minimum rate of Family Tax Benefit for Part A for a child from a previous relationship, you must apply for child support from the child’s other parent. Our records show that you do not receive child support for Mr C. This may be affecting the amount of Family Tax Benefit A you are receiving for Mr C.”  The letter goes onto explain who to ring about this.  

    [18] Husband’s affidavit filed 22 November 2019, annexure D, page 50.

16. Of this document, it is submitted by Counsel for the Husband that “nowhere does this document recognise that she is back in a relationship with Mr C’s father. The only inference this document can provide is that, as far as the Family Assistance Office was concerned, she was a single parent.”

17. From this document the Court is also asked to draw a further inference.  This next inference is said to add weight to the first inference. The inference from this 2008 document said to arise from a letter received by the Husband in July 2010 from the Child Support Agency saying that the Wife sought an assessment of child support.  It is submitted that “This links it to the child support letter of a similar date, and it links it to the Wife making an election, and it links it to an ongoing situation where child support was a factor, which would not be the case were she in a reunited relationship with the father of these children.” I do not agree.

1. When asked about the payment of child support, the Wife said she never received child support. The Husband agreed early in his evidence that he never paid child support. When shown the document that said an application for child support had been made, the Wife explained that she was required to lodge this document purely as a prerequisite to asking for Family Allowance or having Family Allowance reviewed, but that no child support had ever been paid. The Husband does not ever suggest that he has paid child support. There is no evidence that she ought not to have received Family Allowance in some shape or form. Likewise for the Husband.

2. It is also submitted that the documents mentioned in paragraph 53 of the Husband’s first affidavit, being a letter dated August 2010 from Family Assistance is linked to a letter dated 28 July 2010 from the Child Support Agency (“CSA”) Customer Service Team addressed to the Husband.

3. The letter to the Wife regarding her Family Allowance starts with the words “you have told us not to pay your Family Tax Benefit Part A and B fortnightly, and that you want us to work out your exact entitlement after the end for the income years and your Family Tax Benefit has been adjusted to $0.00per fortnight.  Also, as you now have a new child support assessment with a start date in the past, you may be entitled to collect child support you are owed or if your new child support assessment is now less than your previous assessment, you may have to repay some child support. To make sure you are receiving the correct rate of Family Tax Benefit, you must tell us if you collect any child support owed to you or if you repay any child support”.

4. The letter from the Customer Support Team at the CSA addressed to the Husband tells the Husband that “they have received an application from Ms Sampson to assess both parents for the amount of child support payable for Mr D and Mr C.  Before we process the application we would like to speak with you to ensure that the information we have is correct to tell you more about child support.”  

5. I accept the Wife’s evidence and this is not contested by the Husband, that there was no child support paid by the Husband to the Wife.

6. I accept that the Wife believed she had to lodge a child support assessment form to receive the Family Allowance. I consider that the letter she received invited her to do this. It is a generic letter and a message to all who receive Family Allowance. The Wife said that the 2010 letter was automatically generated, and that the letter to the Husband was written on their son Mr C’s birthday. 

7. I am not prepared to accept the submission by Counsel for the Husband based on the documents put to the Wife, that I should keep adding up the inferences to draw or reach the conclusion from these documents that the Wife was not in a de facto relationship with the Husband from any time after she moved back into the home with the Husband.  To even consider drawing these inferences would require that I accept that the context of the various correspondence was based on accurate data, was created in response to information provided by the Wife and was the correct conclusion based on that data and information.

8. I agree that the Wife did not appear to have a good memory as to specific details in relation to documents dates, transactions and Centrelink processes. The Wife did say repeatedly that she did not remember exactly, she did not recall the exact dates. The Wife was open to making concessions when it was demonstrated that she was in error.  I do not consider her lack of recall as exceptional in the circumstances of this matter.  All of these documents were generated years ago, some 15 years ago. The documents are not unequivocal and I am not persuaded that such a broad inference could be drawn. My impression of the Wife was that in giving her evidence she was prepared to agree that her specific date might not be correct but her position remain steadfast that she and the Husband had resumed their relationship as a couple living together in a de facto relationship, and that it happened gradually over a period of time in or around October 2005 or not long after.

9. Having heard this evidence of the Wife, I accept she has given her evidence as truthfully as she can recall. I am not satisfied that the Wife has to identify a specific date that this occurred, as was submitted. That is to suggest that human relationships are cut and dried, and either on or off. It makes no allowance for the emotional state of each of the parties following the turmoil of the affair, separation, police involvement, legal disputes, the Wife being removed from the lives of the children seemingly overnight and all of the other circumstances that occurred at the end of the relationship, after which the parties moved towards the point of agreeing that the Wife would move back in. The Wife’s statement in the Divorce Application states “we have put our differences aside.”

10. This dispute is not a contractual dispute. It does not in my view lend itself to the precision being expected from the Wife by those representing the Husband.  The Wife’s evidence was correct in that their relationship slowly repaired after separation.  Given the Husband’s allegations of domestic violence, and the agreed fact of the Wife having an extra-marital affair it is clear nonetheless that there was agreement to the Wife moving back in to the former matrimonial home. This gives strength to the Wife’s evidence that they were able to move beyond the events at separation and the circumstances which led to that. Their relationship for instance moved from the Husband calling the police saying he was being attacked by the wife, to the Husband choosing to travel with the Wife in circumstances where there was no compulsion for him to do so. 

11. I am not prepared to conclude that the Wife’s confusion over the strict chronology of the events compels me to draw inferences that her credibility of all of her evidence is questionable. I have had regard to her evidence in each area of questioning.  I have adopted the same approach for the Husband in terms of his evidence given.  The Husband was very much more aware of the documents, accounts, correspondence and generally all of the documents with which he had clearly become familiar.  As the Wife said, the Husband has access to the Wife’s documents which were often annexed to his material.

12. Having had regard to the documentary evidence referred to thus far, I have found the documents of limited assistance in determining whether or not the separated relationship of the Husband and Wife gradually changed into a de facto relationship.

13. There are other factors at play in this matter, that together provide more of an insight into the lives of the Husband and Wife from April 2004 onwards and whether their lives were intertwined, other than the inferences from the documents presented.

Tax documents

1. Other documentary evidence is relied upon from which the Court is to draw inferences from is the Wife’s failure to produce all of her tax returns. The Wife said she thought she had provided her full tax returns and they were in a document held by her previous solicitor and that if they were not produced she might have made a mistake about what was needed.

2. The Wife’s evidence is that their joint accountant knew that they were in a relationship. The Husband again giving evidence about what he thinks happened, assumes that the Wife told the accountant that they were in a relationship. I have taken account these documents which are very limited assistance.[19] When the Husband was preparing his tax documents, through the process of disclosure, he says he was wrongly recorded as being in a relationship with the Wife for three years and whilst this litigation has been on foot he has written to have these records corrected

   [19] Exhibit H1, Tender Bundle Pages 33-43.

3. It seems that each of the parties lodged their own returns. The Wife filed electronically and the Husband sent in a standard letter each year as seen in the tender bundle.

4. It is submitted that there is no evidence that the Wife wrote to Family Assistance to tell them that she and the Husband were back in a relationship as a couple. The Wife to her knowledge said she did. However she agreed she had not produced any such letter in these proceedings. Significant periods during the trial were consumed by meticulous analysis of Centrelink documents and bank statements.

Superannuation documents

1. The Wife was questioned regarding Superannuation which was taken out in 2001. These parties married in 1993. 

2. On a superannuation statement for the period 1 July 2002 to 30 June 2003, the beneficiary is shown as the Husband.  Another statement was produced relating to the period 1 July 2007 to 11 July 2008, which shows “not provided” in the section which previously showed the Husband.  It was suggested to the Wife that she removed the Husband as a beneficiary, and she did so because she was not in a relationship with him.  The Wife said “I will disagree as I don’t remember” and “No I disagree, even to this day, I don’t have a beneficiary on my super”.

3. I am not prepared to draw an inference that because the Wife does not have the Husband showing as a beneficiary, that he must have been removed or that he was removed because they were no longer in a relationship.

4. In relation to all of the documents, I have had regard to their contents and all of the cross-examination. I do not find the superannuation or tax documents determinative as to whether or not the parties were or were not in a de facto relationship.[20]

   [20] Sinclair & Whittaker [2013] FamCAFC 129

Their mutual commitment to a shared life

1. The Husband denies the de facto relationship at any time with the Wife after April 2004, but simultaneously says that if it looked like they were in a de facto relationship to the children and this was his hope.  He said he wanted to save the children from the distress of finding out that their parents were divorced.

2. The Husband says “Ms Sampson and I both never disclosed to the children our divorce nor shared with them the complexities of our living arrangement and our other relationships. We always wanted the children to be supported and we both wanted to continue to be present in their daily lives as ‘mum’ and ‘dad’”[21].

   [21] Husband’s affidavit file 12 August 2020, paragraph 81.

3. The Husband is effectively saying that they each played mother and father as a shared pretence, put on for the sake of the children. Under cross examination, the Husband says when the Wife first moved back in the children were too young to understand the subtle differences in what was taking place, but perhaps not so much Mr B.  He explained as part of this arrangement to “protect the children” the Wife would typically go to bed after the children did so they did not see her going to another bedroom.

4. He says that subsequently the children were not aware or told that the parties had legally divorced.  He said that as the children grew up, they may have become aware.

5. The Husband contends that the parties lived together platonically as friends or “companions”. Whilst he agrees that they were sharing the same house and raising their children together, with all of the cooking, cleaning and homework and family life happening around the children, he says that he and the Wife were not living in a de facto relationship.

6. Importantly, when it was put to the Husband that there was “never a specific conversation that you are staying together for the sake of the children” the Husband replied “Can’t remember a specific one, there was a lot of conversation.”  The Husband was not able to give any specific time nor did he have any recollection of a specific conversation.

7. His evidence that the parties agreed that they would each act as “mum and dad” is denied by the Wife. I found the Husband’s evidence as to there being an agreement by the Wife that they would pretend, for 14 years, that they were “mum and dad” (as in living together as mum and dad) unconvincing and lacking in detail. The Husband was not able to give any specific detail as to when this alleged agreement or discussion took place. The Husband said “it was accepted that the living arrangement could not continue long term”.[22] This statement is not supported by the evidence. The evidence is that they lived together from 2004 to May 2018.

   [22] Husband’s affidavit filed 12 August 2020, paragraph 13.

8. The Husband also says in this context Ms Sampson however benefitted from this arrangement financially and did not take it upon herself to relocate until 2018 once I became unwell.[23] The Husband forgets to mention that in 2018 he was in a relationship with Ms H, now his current Wife, who he says he began a relationship with in 2016. [24] He also forgets to mention that he said Ms H moved in when the Wife moved out. The Husband’s statement that the Wife took it upon herself to move out in 2018 appears to assume that the Wife ought to have moved out sooner. The fact that the Wife did not ever move out before this date is consistent with the Wife’s evidence that the Husband and Wife had reconciled and were in a de facto relationship in accordance with the Wife’s evidence.

   [23] Husband’s affidavit filed 12 August 2020, balance of paragraph 13.

   [24] Husband’s affidavit filed 12 August 2020, paragraph 68.

9. I had a strong impression that the Husband’s evidence as to living as companions was given in a manner intending to recast their actual arrangements over years of living together and raising their children together, with an alternate theory or interpretation to suit his position. I did not consider that there was any obvious aspect about the way the Husband and Wife had structured their daily lives when they were together engaged in all aspects of raising and educating their children and work arrangements that suggested the artificiality of that arrangement now deposed to by the Husband.  The Husband’s evidence as to him trying to protect the children from seeing that they were living separately, including the Wife going to bed after the children so that they would not see where she was sleeping was most unconvincing. It seemed to me to be a self-serving narrative, constructed in hindsight.

10. The Wife’s evidence as to the arrangements in place each day between herself and the Husband, and the tasks associated with raising the children, her cooking meals for the family and the division of other tasks such as taking the children to sport or their interests, appeared to be far more based in reality.  Her descriptions of their family life, their entire existence spent as a family and she and the Husband as a couple in a genuine domestic relationship committing themselves to their family life was their reality, not a construct.

11. There is no evidence of any conversation or agreement taking place between the Husband and Wife agreeing to live “as mum and dad”.  Nor is there any evidence as to how long they were to engage in this pretence.   I am not satisfied that the Wife agreed to pretend that they were “mum and dad” for 14 years. 

12. The evidence at trial included photographs spanning many years of the daily lives of the Husband and Wife, and included evidence of the parties attending weddings, birthday celebrations (for each of their extended families) and a multitude of holidays taken with or without their children, and photographs which showed the interior of the family home.  Some of the photographs included typical Christmas morning photos taken in December 2015, photos of their children and Christmas wrapping. On the walls of the lounge room as seen in the photo, it is possible to observe old photographs hanging on the walls taken in the mid 1990’s of the Wife and Husband as a loving married couple in their younger days. This photo was on the wall for the entirety of time from when the Wife moved back in to the property until she moved out again in 2018. The Husband was asked why the photo would still be up if they were no longer together and leading separate lives.  He said he had taken the photos down when the Wife moved out and that he put the photos back up when she moved back in.  He said “they just stayed there. I didn’t want to upset her. I did not want to cause an argument, she is very reactive… I didn’t want to have her walk in and start a fight.” The Husband was asked why he would think that the photos not being on the wall would cause a fight.  He replied from the history of the relationship, he believed she would react badly “and would be upset or offended by the photos not being up on the wall.”  

13. I found this evidence, along with other evidence of the Husband that he was worried about the Wife’s allegedly angry reactions, unconvincing.    Throughout his evidence he tended to add little insights about how difficult and at times toxic the Wife was and said she was always jealous of his other relationships. These alleged concerns seemed unrealistic and inconsistent given the overarching position that the Husband chose to live in the same house as the Wife for 14 years and with his decision that they would live together and raise their children together and holiday together and all that was encompassed in that decision.

14. The photographs of their holidays show a family enjoying their holidays.  When asked about the 2012 trip to Country N that the Husband and Wife and their two children, Mr C and Mr D, went on, it was suggested to the Wife that the reason there was two rooms booked was because the parties had separated. The Wife gave evidence that it was part of the prerequisite with the hotel that each room had to be booked[25] showing an adult and child in each room, as opposed to two adults in one room and two children in another. At the time Mr C and Mr D were aged 15 and 13 respectively. I accept the Wife’s evidence that regardless of the booking she and the Husband stayed in one room and the children stayed in another.

    [25] Exhibit H1, Tender Bundle, page 49 – 51.

15. The Husband was shown photographs of the accommodation on holidays such as in Country N, showing a double bed room in a resort that the Wife says they shared. The Husband said “no it’s not a room we shared at that resort”.  He agrees he went on multiple overseas holidays with the Wife and said he essentially couldn’t work out if the photo related to City O or Country P saying “it could have been either one to be honest.” 

16. I found all of the Husband’s evidence about him being on holidays with the Wife to be consistent with the Wife’s version of history, namely that she and the Husband travelled on overseas holidays together with their children and without their children.

17. The evidence of the holidays does not consist of a once off holiday.  The evidence covered various photographs covering the period 2009 to 2018 and 10 trips in all as follows:

    i.2009 in Country N;

    ii.2010 in Country P with the children;

    iii.2011 in Country N without the children;

    iv.2011 Cruise without the children;

    v.2012 in Country N with the Husband, Wife, Mr D and Mr C;

    vi.2013 in Country Q without the children;

    vii.2014 in City R and Town S for a wedding together without the children;

    viii.2014 in Country N without the children;

    ix.2016 in Country N without the children;

    x.2018 Cruise with Mr D and his partner.

18. The uncontested evidence is that the Husband and Wife took nine overseas holidays in a period of eight years (seven of which were taken with just the Husband and Wife). Two of which the children attended as well. The Husband has flown with the Wife to Far North Queensland for a weekend, hired a car together and attended a wedding with her for a friend they both met overseas whilst they were on one of their tours to Country N. The evidence also shows that the trips were planned together, the costs were shared with often the Wife arranging to pay for the bookings and flights from her account, such payments being made on behalf of both parties.  Given the Husband’s evidence as to how difficult it was to live with the Wife, his constant concern that she would be volatile or over react to a situation, it seems illogical that he would chose to repeatedly go on holidays with the Wife, especially just the two of them travelling alone as happened on most occasions. I find the Husband’s conduct is more consistent with him being in a genuine domestic relationship with the Wife in accordance with the Wife’s version of events. He has portrayed the Wife as a violent, jealous, unpredictable woman. He clearly though enjoys her company immensely.

1. The Husband says that on one of his overseas holidays with the Wife he met up with a female he was in a relationship with, Ms J. The Husband said in his Affidavit “from late 2011 to late 2012 I was in a relationship with Ms J. Ms J and I were friends previously. Her Husband had a relationship with Ms Sampson that ultimately broke up their marriage. Ms J and I reconnected some years later. Ms Sampson knew of this relationship. Ms J and I met up in Country N on one occasion when Ms Sampson and I travelled with the children”.

2. Ms J filed two Affidavits to support the Husband. Ms J said that “my Husband and I were good friends with her (the Wife) so she would come to spend time with me often. She would also come over to see my Husband.” She explained that in 2003 she had “popped in to visit both of them at their place and was witness to an argument between them”. She then explained that she sat down and had a long conversation with each of the Husband and the Wife, during which the Wife admitted to having an affair. It seems that two years later in 2005 Ms J spoke to the Husband who told Ms J that he knew the Wife was “seeing someone but did not know it was Ms J’ Husband”.[26] The Wife denies being in a relationship or dating Mr T, the husband of Ms J.

   [26] Ms J affidavit filed 12 August 2020, paragraph 8.

3. Nonetheless, Ms J says that she “still popped in to see Mr Sampson and had seen Ms Sampson living in the spare room at the back of the garage”. Ms J went on to explain that herself and the Husband maintained a good friendship and that Ms J did not consider the Wife to be a friend after this point, describing the Wife as careless and selfish and not to be trusted. Ms J seems to have continued to go in and out of the former matrimonial home from time to time. I have taken account of her observations, Ms J described that in 2011 she and the Husband began spending a lot more time together and began a romantic relationship. However, it seems this relationship was a clandestine relationship as Ms J stated “we did not make our relationship public as it was a very new relationship and we both wanted to protect our children”. In 2012, Ms J travelled overseas at the same time as the Husband and Wife and their children and during that trip she and the Husband did some sightseeing, and had some dinners alone. Ms J said “it was during this period that we both decided it was in the best interests of the children to portray our relationship as ‘just friends’”. Ms J said they eventually went their separate ways however “we remain good friends and I have also met his current Wife Ms H”.

4. I do not give any significant weight to the evidence of Ms J. Ms J has changed her friendship from initially being more a friend of the Wife than the Husband but then she subsequently entered into what she describes as private relationship with the Husband. In addition, Ms J says she has been in and out of the former matrimonial home for years, including in the master bedroom and using the ensuite bathroom whilst visiting and allegedly making observations of whose cosmetics were on display. During this time she has also been having a relationship with the Husband but pretending to be just friends.

5. Ms J says that she and the Husband pretended to be just friends in the presence of the children. At that stage then, on the Husband’s evidence he was pretending to be ‘just friends’ with the Wife and Ms J and the Husband were also pretending to be ‘just friends’. It seems the Husband on his evidence and the evidence of Ms J has been pretending to be ‘just friends’ with both Ms J and the Wife on both occasions in order to protect the children. The Husband gave evidence of the Wife moving from the spare room and the spare room itself changing when Mr B moved out and Mr B moved into his room.

6. Whilst the Husband says of his relationship with Ms J and meeting up with her in Country N that Ms Sampson knew of this relationship[27], this is in contrast to the evidence of the Wife who says she did not know the Husband was having other relationship. The Husband’s evidence is inconsistent with the evidence of Ms J who said “we did not make our relationship public as it was a very new relationship and we both wanted to protect our children”.[28]

   [27] Husband’s affidavit filed 12 August 2020, paragraph 66.

   [28] Ms J affidavit filed 12 August 2020, paragraph 11.

7. In any event, whether or not the Husband was in all the other relationships referred to in his Affidavit material, or going on outings with other women during the holidays he had with the Wife, I accept the Wife’s evidence that all of these trips were part of the social fabric of the ongoing relationship between the Husband and Wife.  Both of them were working and both organised to take the time off to travel together.  They jointly planned their holidays and the Husband was often happy to leave it to the Wife do the bookings. The Husband’s explanation that he went on holidays with the Wife more as a matter of convenience as they got on well enough was, in all of the circumstances, unconvincing.  My impression of the Husband was that he was minimising the strength and closeness of his relationship with the Wife.

8. In addition to regular holidays together, there was evidence of the social engagement between each of the parties and each of them enjoying family events with each other and with members of each other’s families.

9. The Husband attended the 30^th birthday celebration of the Wife’s cousin in 2009.[29]  He has his arm around both the Wife and her cousin.    The Husband says they travelled to the event together, probably to save money.  Of note is that the Wife has reached up to hold her Husband’s hand which he has placed on her shoulder.  The Husband is seen as part of the Wife’s extended family.  I am mindful that people usually smile for photographs and look happy.  These photos are of happy times.  There was no explanation of the Husband as to why he was attending the Wife’s family celebrations if in fact they were leading separate lives.  There was no evidence of any compulsion on his part to have to go to this event.

   [29] Exhibit W1, page 27.

10. Similarly the photographs of the Husband and the Wife at an event at the U Club, show the Husband’s father’s former Wife, his Father, Mr B and an Aunt of the Father called Ms V. The Husband said he couldn’t recall the incident but then remembered it looked like the Sampson Family Reunion. The Husband went on to say “no she wasn’t invited but she came.” The photograph[30] shows a happy family group typically with the Husband and Wife at the centre or standing side-by-side or close together. Taken at face value, these photographs show the Husband and Wife as a couple out celebrating events on both sides of the families with other family members and their children and their children’s boyfriends/girlfriends. There is nothing about the photos that suggests that the Husband and Wife are just companions. If the Husband was genuinely leading a separate life to that of the Wife that evidence is entirely inconsistent with the raft of experiences depicted in the photographs.

    [30] Exhibit W1, page 28.

11. Another photograph in 2012 shows the Husband and Wife, Mr B and his girlfriend/fiancée, Mr C and Mr D and the Paternal Grandfather. The photographs show the Husband and Wife on various holidays and weddings. In the photos the Husband and Wife are very much a couple. There are many photographs in exhibit W1 which consist of pages 1 through to 52.

12. Also as to the nature of the relationship I have had regard to the photographs placed on Facebook by the Wife during what was known as love your spouse day. This consisted of the Wife placing up romantic photos of herself and the Husband on Facebook for a period of seven days. It was done as a fun challenge. The Wife had been posting the photos to her children, a cousin and 8 others, being anybody who happened to be a friend on Facebook. The Husband was reluctant to acknowledge that he was a friend of the Wife on Facebook at the time, but he did do so.

13. When quizzed about the photographs and the Wife posting these photographs the Husband tried to distance himself from these photographs with comments like “I wouldn’t know… why would I know…how do you say I saw them… I glance at Facebook, I don’t deny not seeing them I just don’t take much notice…” The photograph of the Husband and Wife as a couple in which the Wife is wearing a lowcut green dress was said to be taken around 2010. I accept that the Wife posted the photos in the full belief that she was celebrating love your spouse day with her de facto spouse. There is no evidence of the Husband responding to the Wife’s posts in any way to issue a clarification in response to the photographs posted in 2016 as part of the love your spouse challenge. Given that the recipients included the Husband’s own cousin, it is surprising that the Husband did not state even to his own family, that they were not in the relationship being portrayed by the Wife and that he was not her spouse.

14. Similarly, from 2005 onwards there is no evidence the Husband expressly told the Wife at any time from 2005 up to the point of separation that he was not in fact in a couple relationship with the Wife.

15. The Husband and Wife attended another wedding together at City W Gardens around 2014. He says he was invited by a third party to the wedding.  There is a photo of the breakfast the following day, and the Wife is pictured on that morning with the Husband and his family including his father and his Aunt Ms V.  There are a multitude of photos showing the Husband and Wife and their children holidaying at various tourist places and events. It was put to the Husband that he and the wife were seen enjoying each other’s company to which he replied no. This answer defies logic in the context of his continually holidaying with the Wife.

16. The photographs were many in number with a variety of experiences and they cover many years and events involving all of the family and often just the Husband and Wife. There is a photo of the Husband asleep in a double bed that the Wife says she was sharing.  That is an intimate photo. 

17. The Husband and Wife are seen sunbaking together, eating ice creams together, going to weddings together, on the dance floor together and taking photos of each other engaged in overseas activities such as holding a monkey, feeding a tiger or on rides together. The impression gained from the fact of their overseas travel together for so many years, even without the photographs suggests to me that the Wife’s evidence that they lived together as a family and made plans to travel overseas together alone, and sometimes with their children, supported her evidence that they were in a genuine domestic relationship which they each freely engaged in. I have had regard to all of the Husband’s evidence about his holidays with the Wife and I am not satisfied that he was travelling with the Wife simply as a companion. I do not accept that the Husband always slept in a separate bed when they were on holidays.

The use and ownership of property

The proposed property settlement

1. The Husband’s case is that he took steps including during the time that the Wife moved back into the former matrimonial home to effect the terms of their informally agreed property settlement.  The Husband says he wanted to retain the former matrimonial home as part of their property settlement and to do that, he had to pay out the Wife.  Discussions in or around 2005 were referred to by the Husband, with the proposed figure of $70,000 to be paid by him to the Wife in exchange for her transferring her interest in the former matrimonial home to the Husband.

2. The Husband’s evidence at the commencement of the trial as seen in his affidavit[31] and case outline was that in late 2004 he obtained a loan from the CBA and paid $50,000 from this loan to the Wife as part payment of a property settlement, intended to be ultimately $70,000.  It was also stated the remaining “value” was provided to the Wife after the divorce by transferring a sum to her, which the Wife used towards a loan she obtained to buy a new motor vehicle.

   [31]Husband’s affidavit filed 12 August 2020, paragraph 14.

3. During his evidence at the trial, the Husband changed this evidence on this $50,000 payment quite significantly.  The Husband’s second version of what occurred was that he obtained the loan as indicated, but that he used some of the funds to pay out a debt.  This evidence became that he now believed that he paid out the Wife $20,000 (not $50,000).  His evidence also became that he paid other funds to the Wife to make it up to a lump sum of $70,000 however this occurred at unknown times during the Wife’s ongoing cohabitation with him in the former matrimonial home.

4. The Wife disagrees that any cash payments were made to her representing any proposed property settlement. The Wife says the mortgage was extended by $54,000 as referred to by the Husband, but that was in order to undertake renovation, not to pay her out a property settlement. Whilst admitting that her car loan was paid out by the Husband the Wife states that this was because the Husband had paid out his own car loan and it was decided to do the same for the Wife. 

The Law

1. At the outset it is helpful to refer to the case law each Counsel has referred me to in order to put this application in its legal context. Counsel have referred me to various cases including  Shee & Hale [2020] FamCA 84 (“Shee & Hale”), a single‑judge decision of Baumann J which refers to Full Court authorities; Sanil & Lennon [2019] FamCA 556, a single‑judge decision of McClelland J which sets out various helpful authorities commencing at paragraph 81 and Rooks & Padley [2014] FamCA 444, a single-judge decision of Tree J which, again, referring to Full Court decisions helpfully sets out the law as summarised by His Honour at paragraph 5 to 10.

2. Pursuant to section 90RD(1) of the Act, this Court is empowered in proceedings brought under, amongst other provisions, section 90SM of the Act to declare for the purposes of those proceedings that a de facto relationship existed, or never existed, between the parties. 

3. The definition of a de facto relationship, for the purpose of the Act, is contained in section 4AA. Subsection (1) provides as follows:

   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.

4. Paragraph (c) has effect subject to subsection (5).  Subsection (5) provides as follows:

   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.

5. Some elaboration of the circumstances relevant to working out if persons have a relationship as a couple is contained in 90RD subsection (2).  That section provides as follows:

   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.

6. Statutory guidance as to the interrelationship of those circumstances, and the weight to be given to them, is provided in subsection (3) and (4) of s 90RD as follows:

   (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.

7. In adopting the remarks of Tree J in Rooks & Padley [2014] FamCA 444, the relevant provisions are explained and summarised as follows:

   Those provisions, or their state counterparts, have been the subject of considerable judicial discussion, principally in an attempt to more precisely analyse what will comprise “a couple”.  Much of that analysis seems to have its genesis in the difficulty in satisfactorily distilling the essence of such a common, everyday concept.  From those decisions the following propositions may be stated:

   (a)Whether a de facto relationship exists or not is a question of fact, not a matter of discretion[32];

   (b)A de facto relationship does not need to be akin to a marriage[33] although the nature of the association involved in a marriage relationship may be instructive[34];

   (c)The parties determine the nature of their relationship and it may evolve and alter, even dramatically, over time[35];

   (d)Whilst a composite expression, it is comprised of two parts “a couple” and “living together” each of which must be established[36];

   (e)  There need not be full time living together;[37]

   (f)The relationship may be unhappy, but still subsisting;[38]

   (g)Sexual or other exclusivity is not necessary;[39]

   (h)The gist of the inquiry is the degree to which parties have merged their lives into one.[40]  That connotes financial, emotional and physical interdependence.[41]

   [32] Jonah & White [2011] FamCA 221 at [58] per Murphy J

   [33] Moby & Schulter [2010] FLC 93-447 at [163]-[164] per Mushin J

   [34] KQ & HAE [2007] 2Qd R 32 at [18] per McMurdo, P, Keane and Holmes JA

   [35] Vaughan & Bele [2011] FamCA 436 at [11] per Cronin J

   [36] Taisha & Peng [2012] FamCA 385 at [12]-[21] per Cronin J

   [37] Moby & Schulter (supra) at [140]

   [38] JRR & PH [2005] QSC 253 at [29] per Byrne J

   [39] ibid at [62]-[64]

   [40] ibid at [60] and [67]

   [41] Zau & Uongh [2013] FamCA 347 at [35] per Cronin J

8. Further and more recently in the decision of His Honour Justice Baumann, his Honour referred to a decision of Herford & Berke (No.2) [2019] FamCAFC 182, the Full Court (Ainslie-Wallace, Ryan and Aldridge JJ):

   …when noting that the touchstone or foundational fact establishing jurisdiction is whether the parties were “a couple living together on a genuine domestic basis” at the relevant time said (at [10] to [12]) that the question can be decided by reference to the matters to which section 4AA(2) of the Act refers, none of which are determinative of the question as was said in Sinclair & Whittaker [2013]) FLC 93-551:

   “51. In coming to the view that a couple had a relationship as a couple living together on a genuine domestic basis the court is to have regard to all of the circumstances of their relationship. Those circumstances may include those specified in ss 4AA(2).

   52.Sub-section 4AA(3) highlights that no particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the subject persons have a de facto relationship.

   53.Sub-section 4AA(4) provides:

   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.

   54. Thus, whether or not a de facto relationship, as defined, exists will depend upon an assessment of all of the circumstances of the relationship, each to be given the weight the court thinks appropriate”.

Degree of Financial Dependence or Interdependence and any Arrangements for Financial Support between them

1. The evidence of each of the Husband and Wife show that they were sharing the significant costs involved in living in the former matrimonial home and raising their children and paying their ongoing costs. Together they covered all costs of keeping their home, paying standing charges, feeding the whole family, health paid and education costs paid.

2. Generally, the Husband paid the mortgage and once the Wife rejoined the workforce in around 2008 and had her own income, she paid the school fees for the three children which had previously been paid by the Husband and the cost of medical insurance for the family. The Husband’s evidence was that the school fees were paid by way of the Family Tax Benefit A and B. However, I accept the Wife’s evidence that it was paid from her wages. The Wife says that the parties agreed that generally the Husband would pay the mortgage and she paid the relevant private school fees for their three boys on a regular basis of around $339 a month and bought food for herself, the children and the Husband. The Wife says also that from time to time she paid the mortgage and other standing charges including rates if it was needed such as when the Husband was unable to work due to sickness. The Husband initially denied the Wife made any mortgage repayments, rates and insurance.  However, during the trial the evidence showed that whilst the Husband paid most of the mortgage repayments, rates and insurance, the Wife was correct in that the Husband did not exclusively pay them as alleged by him.  The Wife certainly had from time to time, as she said “when needed” paid such outgoings along with the other regular costs she paid. 

3. The school fees were paid by the Wife up until around 2015 when the children finished schooling. It is clear that at times the Wife paid for a holiday and then was reimbursed by the Husband and they had other interchanges of money going on between them. The Wife also generally bought food for everyone in the household. At the commencement of the evidence the Husband said that he paid all the mortgage repayments and the rates and denied the Wife paid any of these payments. The Husband’s evidence was inaccurate. It was demonstrated by Counsel for the Wife that the Wife had paid the mortgage and rates payments and that she had done this at times when the Husband was not able to work through sickness or injury.

4. Similarly, when the Husband was quizzed about a bank statement entry in which he transferred $1,000 to the Wife on 16 March 2012 with the entry stating “merry xmas lol”, and asked whether this was a belated Christmas present the Husband said “for whatever reason I was giving her money”. When asked by Mr Stagg of Counsel if he remembered what the $1,000 was for the Husband replied “nah sorry Greg”.

5. He was unable to identify what the money would have been for, stating it was not a loan repayment but could have been a cost. The Husband responded to the question as to the meaning of the message with a laugh and said of the message “it was just banter and she would have known what it meant.” When asked was “this just funny banter” between himself and the Wife, the Husband said “no it wasn’t funny”. When asked “was the Wife supposed to see it as funny” the Husband replied “I think to annoy her.”

6. I am satisfied that the Wife has played a considerable role in providing shared financial support for herself and the Husband and the family and that her evidence on that topic was correct and truthful.

The Degree of Commitment to a Shared Life

1. As referred to elsewhere in these reasons, there has been a significant commitment by each of the parties to a shared life in living together, holidaying together and with their children, and attending many of functions and events together.  

2. In addition to the evidence of the Wife that she did the housework, cleaned and cooked for the family, including the Husband and played a major part in raising the children evidence was given by their now adult son Mr B who was aged 29 years at the time of the trial. Mr B was not challenged about the balance of his affidavit in which he described his life over many years living with both the mother and father and two brothers, and each of them performing duties and responsibilities that parents do in raising children together.

3. He said to his knowledge and memory his mother always slept in the bedroom with their father.   He described a very normal family life where the family generally ate together, went out together, holidayed together and many family outings. Each of his parents raised him.  His evidence was that his mother was very much a part of their family circle. He described his mother cooking dinner “pretty much every night”. He said “mum and dad would sit together and eat together in front of the TV and my brother’s and I would eat at the dining table in the next room. Typically on Fridays, the whole family would go to Suburb BB to have dinner in the food court together.” He remembers his mother doing everyone’s washing, and remembers his father getting upset with his mother if he could not find a piece of clothing or had to iron his own work uniform. He remembers an incident where his father asked Mr B in the presence of Mr B’s partner why Mr B was doing the ironing and why isn’t she (my partner) doing it for you.

4. Mr B listed out some quite fantastic and strange stories that he said his father had told him over the years which he doubted were true. They included that his father was in the bomb squad, that he was employed at ASIO, that he was a sniper in the Army, that the father worked for the King of Brunei and of the father’s involvement in a shooting incident. 

5. Evidence was produced to the Court that just prior to the Husband giving evidence, he received a text message reminding the father not to tell lies and reminding him about the seriousness of perjury.  I did not regard this text message as a threat.

6. Although Mr B gave evidence to support his mother, Mr B has played a significant role in supporting his father as can be seen in their dialogue that occurred when the Husband contacted Mr B when the Husband was expecting the Wife to leave the former matrimonial home in May 2018. Mr B explained that when his mother and father separated in 2018 he told them he “wanted to remain neutral” and also said words to the effect “this relationship clearly isn’t bringing either of you any happiness, and I just want you to each be happy. Just keep everything amicable and settle everything at mediation and not at Court.”

7. Mr B annexed copies of text messages exchanged between himself and his father in November 2017, where his father wrote to Mr B saying “don’t worry, but I think this is it for me and your mum. Don’t think she’s coming home. She told me she doesn’t love me and well we will see I guess”. Mr B can be seen asking his father you okay? Mr B then noticed in the year leading up to 2018 that his father was posting on social media that he was depressed and sharing messages about depression being very real and “I would like 22 of my people to post this so I know who can talk to if I ever need to or depression and anxiety are very real. I’d like to see 5 of my friends post this to show who I can talk to if needed”.

8. Subsequently, Mr B became so worried about his father, he met up with him in early 2018 and Mr B asked what was going on, he said his father said words to the effect of I still love your mum and I just want things to work out. Mr B asked his father if he was suicidal and his father replied “yes. I feel like killing myself because of all of this.” There are other messages to Mr B where the Husband is seen thanking Mr B for his emotional support and Mr B is seen enquiring about his father’s wellbeing. On 23 November 2017 the Husband is seen writing “thanks mate, was a bit down last night. No details. But same from her, so we are going our own ways”. Mr B also annexed a Facebook messenger post around this time from the Sampson group containing among other relatives, my brother, my father and mother. “As for me and your mum guys it’s clear things are going different. She is having a life without me and that’s her call, no bad at all.” The message continues that the Husband and Wife are not talking at all and the Husband says “so life goes on she continues to sleep on the lounge through her choice as beds are available.”  

9. As it can be seen the dialogue between Mr B and the Husband showed Mr B trying to be the peace maker, whilst also watching out with great concern for the wellbeing of his father. Mr B is told that from the father’s perspective, this is it, mum’s leaving and we are going our own separate ways. This statement is entirely inconsistent with the status of their relationship being they were living together but leading separate lives, and living as just as companions. His messages and Facebook entries demonstrate that the Husband was very distressed in November 2017 that the Wife was leaving. Importantly the Husband said of the wife she was having a life without me. The Husband seems most upset and again Mr B is looking at ways to make it easier for the Husband.

10. I would not expect this kind of response from the Husband to a companion moving out. The Husband’s conduct seen in his text and Facebook communications are in accord with the Wife’s evidence that after separation, the Husband kept asking her to come back after and said he would drop all of the charges if she would come back and it will be like nothing happened[46].

    [46] Wife’s affidavit filed 28 February 2018, paragraph 6.

11. The text messages from the Husband are clearly that the Husband telling Mr B that his relationship with the Wife is coming to an end and she is starting a life without him.  

12. This evidence is very supportive of the Wife’s position that the parties de facto relationship came to an end in the months that followed in May 2018.

Acquisition of their Property, Ownership and Use

1. Each of the Husband and Wife  together have maintained their ownership and occupation of the former matrimonial home which is in both names and for which they both remain as joint mortgagors, being jointly and severally liable.

The City E property

1. In addition to the former matrimonial home, the Husband and Wife together with the Husband’s father, purchased an investment property in 2014 in X Street, Suburb Y, City E (“the City E property”) whilst they lived together.   The property was originally owned by the Wife’s extended family and said to be near the Wife’s Grandfather’s house. The property is in three names and there is a joint mortgage.

2. The Wife agreed that she went in to purchase this property with the Husband and his father, knowing that the Husband’s father would be living there and that by doing so, she made a one-third contribution to that property. The Wife stopped making repayments around 2017-2018 when the Husband told her she did not need to. The Wife also considered that it was reasonable for her to stop contributing toward the mortgage as the Husband’s father is living in the property.

3. The Wife says she would not have entered into the purchase of a jointly owned property with the Husband and his father unless she thought she was in a de facto relationship with the Husband. Prima facie her position is logical.

4. The Husband (who has a tendency to give evidence about what he says the wife thought or knew or was aware of) said she thought it was a good investment opportunity and set out a range of reasons why it was convenient for the wife to agree to buy this house with himself and his father. I struggle to accept that the Wife had much to gain from investing in a jointly owned property with her former Husband allegedly then reduced to being her companion, and the father of the Husband. Without the support of the Husband and his father, that there would be very limited opportunity to sell a one third interest in an “investment” home on the open market.  It is difficult to imagine who would wish to buy a share in a house co-owned by unrelated parties. It was a home to be occupied by the Husband’s father which sounds more like a family arrangement than an investment strategy.

The proposed property settlement – former matrimonial home

1. There is a convoluted explanation in the Husband’s affidavit as to why the former matrimonial home at Suburb F ended up being in both names. The Husband alleged some discussions between the Wife and the conveyancer resulted in the contract being in both his and the Wife’s name and this left him in an impossible position with time frames and he was left with little alternative than to agree to it[47]. 

   [47] Husband’s affidavit filed 12 August 2020, paragraph 16.

2. The Husband recounted a story in his evidence that it was never his intention to put the house in both names. The Husband said his father, a bank manager had taught him some things.  The Husband went so far as to say “No property we lived in was ever in both names… I had my suspicions she was cheating.” The Husband explained that this was a “property thing” he was taught by his father. The Husband explained that he believed “She could have taken a mortgage out and run off with another man for all I know.” The Husband explained that it is possible that a mortgage can be extended by one party only saying “I know in one extension I was the only one who signed, so I suggest she could have”.He agreed that typically a matrimonial house might be in both names but said that this would only happen if you trusted your partner. This evidence and commentary is all at odds with the fact that the former matrimonial home is in both names and the mortgage is in both names.  

3. The Wife’s evidence is that they were married when they bought the former matrimonial home. I accept the Wife’s evidence that they obtained a joint mortgage and that the purchase of the home required various meetings with the conveyancer and the Commonwealth bank prior to and during the purchase process. The Wife annexed a copy of the mortgage document evidencing both their initials on the front page and full signatures on the second page as joint mortgagors and showing the Husband and Wife as joint mortgagors. 

4. I accept the Wife’s evidence that there would have been meetings and discussions with the bank involving them both. I do not accept that the Husband is so naïve that he could not have prevented the house being put into two names if he had really wanted to. 

5. I considered his statement that he “never really trusted her” was artificial and added for effect. 

6. This is one of the various aspects of the Husband’s evidence which sounded unconvincing and which I doubted was true. I had the impression he was almost acting at times. For a large part of his evidence, he answered questions openly and trying to recall as best he could historical information however, there were areas where the Husband’s evidence was seriously improbable or unsatisfactory.

Property settlement evidence

1. The Husband knew that the Wife was entitled to a property settlement saying “I had a year after the divorce to get everything settled”.They were divorced on 2 February 2005. He was keen to get the property settlement sorted out and finalised. To do this he needed to borrow money.

2. The Husband explained at the time of separation they were two mortgages and that he recalled that a third mortgage might have been started to get the $70,000 to pay out the Wife.  The Husband said in his evidence “there were two loans and then a third loan taken out in both names.  And secured against the property, it was a mortgage yes.”

3. In his affidavit evidence the Husband stated[48] that “Ms Sampson and I formalised our property settlement 2004 and I paid her the property settlement adjustment sum of $56,400 by obtaining a loan from CBA in my name”.  He annexed a bank summary, which was titled “Consumer Credit Contract Schedule”.  It was a single page of a longer document.

   [48] Husband’s affidavit filed 12 August 2020, paragraph 14.

4. The Husband said they each had solicitors, he was trying to obtain the file from his previous lawyer, the amount of the property pool was agreed at $140,000.  They agreed to equally divide this sum.  “I obtained a loan in my name of $56,300, of this loan I transferred approximately $50,000 to Ms Sampson.” He went on to explain that the “remaining value was provided to Ms Sampson sometimes after the divorce by transferring to her a sum which she utilised towards a loan she had obtained to purchase a new motor vehicle.  I retained the Suburb F property, my vehicle, the furniture and furnishings, everything contained within the garage and some savings I had.”[49] All of this was stated unequivocally in his Affidavit.

   [49] Husband’s affidavit filed 12 August 2020, paragraph 14 and 15.

5. As the trial continued, it was revealed that in fact the Husband’s unequivocal evidence and explanations that he had paid out the Wife $56,400 were not correct.

6. When recanting this evidence the Husband explained that he sought to correct the record.  As to the facts sworn to in his affidavit (set out above) the Husband said he thought the Court might be “under the impression that the whole amount was used to pay out the Wife, whereas in fact some of the funds borrowed were used to pay out a previous loan” which was likely the remnants of a loan remaining on the previous home the parties lived in “the Banks property”. 

7. In my view, there was nothing confusing about the paragraph[50].  It is a stand alone assertion that he paid out the Wife $50,000 from a loan in my name of $56,300.

   [50] Husband’s affidavit filed 12 August 2020, paragraph 14.

8. When questioned very carefully by Mr Stagg of Counsel for the Wife, the Husband gave a rather confusing explanation to the effect that it must be evident from the increase in loans over a period of years that he had borrowed funds to pay out the Wife. The Husband gave evidence that during the relationship there were various increases in their joint mortgage by him. He then explained he had a loan of $150,000 four years prior to separation in 2003, but after 15 years of paying the loan, the loans are $215,000 and “its an accumulation of loans”.  The Husband appeared to believe that this was all self-evident which I do not accept.

9. Mr Stagg, Counsel for the Wife cross examined the Husband further as to his backflip on his evidence previously referred to in his Affidavit.     The Husband denied that he spent the $50,000 on home improvements as was suggested to him. The Husband could not however point to any particular transactions over the years in which he had identified payments to the Wife of the balance of her alleged property settlement.

10. The Husband gave evidence that he spent about $30,000 of the loan paying other debts which meant he had paid the Wife $20,000 not $50,000.

11. When asked when the balance of the money owing to the Wife was paid to her, the Husband was not able to give any specific evidence as to how or when the money was paid. When questioned about this the Husband agreed that he knew it would be important to be able to track the money allegedly paid to the Wife as part of her property settlement to demonstrate that he had paid out the Wife her property settlement.  He agreed that he needed to carefully account for the money paid to the Wife to be able to confirm the property settlement monies were actually paid. The Husband said either he would have paid the Wife directly or some payments would have come direct from the bank.  It was suggested to him that either way, the Husband would have identified the payments going to the Wife. The Husband said he initially tried to but there was no tracking by him of the money paid to the Wife, that he lost track of it due to illness, that he started a document at the very start which was not maintained. 

12. The Husband said “it depends what you call a property settlement’ when asked if he identified the property settlement payments made by him.   He described the payments made by him as very erratic.  

1. The Husband has not set out anywhere in his affidavit evidence as to how and when the balance of what he says was a property settlement was paid to the Wife.  Even at the trial when give the opportunity, he was not able to identify any such payments made to the Wife.  He has had plenty of time to do so. Overall, the Husband’s evidence as to him paying out the Wife was most unconvincing, vague and generalised.   

2. I have listened and taken account of all of the evidence on this topic.  On this issue I prefer and accept the evidence of the Wife who said that she received nothing from the Husband, by way of settlement.

3. The Wife’s evidence is that they didn’t go ahead with the property settlement because they were back together as a couple live in a de facto relationship. In all of the circumstances, this explanation is logical.

Whether the Relationship was registered

1. The relationship was not registered.

The Care and Support of Children

1. There is furious agreement between the parties that they each were involved in raising their children over the 14 years that the Wife lived with the Husband post separation in the third period.   

2. The Husband and Wife have together raised their three sons.  At a point as seen on the divorce application they shared the weekly care, and alternated the weekend care.  In the interim consent orders, they agreed to a week on week off.  I accept the Wife’s evidence when she moved back in to the home in April 2004, that she resumed the role of mother to the children.  Her application for divorce sets out that the Husband is still working and also attending TAFE three nights a week.

3. The Wife remained the uncontested primary parent during the period 2004 when she moved back in at least until she commenced work in the paid workforce in 2005.  At that time the Wife has still been cooking and shopping for the family, doing the washing and doing what parents do in raising children. The father has stayed working in the workforce (except through illness) and no doubt he will see himself as also raising the children along with the mother when they were both working parents from 2009/10 onwards.

4. As I have said elsewhere the Husband says that he and the Wife tried to look like an intact family.  The Wife’s evidence however, is not  that they tried to look like an intact family but that they were in fact and reality, living together as an a couple raising their three children. The Husband  agrees with the Wife that they were, as far as their children were concerned, seen to be living as a couple (as experienced by the children for the years before separation) and he wanted the children to believe that this was the case.

5. When the Husband was asked questions about his knowledge of the children’s awareness of the Husband and Wife living separately under the one roof, the Husband said that he did not directly tell the children about the divorce.   The Husband said that Mr C has Aspergers and is very emotional and the Husband was trying to protect him from emotional harm. 

6. The Husband also said that “she went to bed after the kids went to bed and we kept other relationships from the children”. The Husband’s evidence assumes the Wife also had other relationships and she hid them from the children too. Post separation, this is unsupported by the evidence.

7. The Husband said I tried to protect them from knowing that we weren’t sleeping with each other.  He said also that Mr C and Mr D didn’t know we were legally divorced.  The Husband said “that as to when the children did become aware, that you would have to ask them, they have learnt a lot, more than I realized. Yes I tried to hide it.  I hope they thought we were in an intact family unit.”

8. I find this evidence self-serving than rather than persuasive.

The Reputation and Public Aspects of the Relationship

1. Throughout this judgment I have made reference to the parties openly living  together and publicly been seen as a couple for the 14 years after the Wife moved back into the former matrimonial home.  On holidays, at home, at schools, and sports activities, and family functions their appearance as a couple has been on public display.

2. The Wife has gone to the lengths of putting up the Husband as her spouse in the Love your Spouse challenge on Facebook.

Conclusion

1. I have had regard to the statutory considerations as set out in these reasons and all of the evidence.

2. The decision has been quite difficult because the Husband has accepted that:

   ·he lived with the Wife in the family home;

   ·they shared the raising of their children together;

   ·they made plans for and went on around 10 overseas holidays together over the years;

   ·they have continued to jointly own the former matrimonial home;

   ·together with the Husband’s father, they have purchased another home for which the Wife became indebted on the joint mortgage;

   ·they shared financial obligations by both making a contribution to their overall costs of living  including the mortgage, the rates, food, health care and education;

   ·their children would have thought that he and the Wife were “mum and dad”.

3. Despite accepting that the parties showed every appearance of being in a de facto relationship, the Husband denies they were in a de facto relationship.  He denies having sexual relations with the Wife during this period.  Instead he maintains that the parties were living as “companions” for 14 years. As set out in this judgment, I find the Husband’s evidence on these points unconvincing.  

4. The Wife said she would never have stayed for 14 years in the former matrimonial home, living with the Husband as only the Husband’s companion, that she would never have bought property with him only as a companion, and that she would never have spent 14 years going on holidays with the Husband only as a companion. There is no evidence that satisfies me that the Wife agreed to live together for 14 years as companions. 

5. I accept that on the balance of probabilities[51]  that the Wife’s evidence that for most of the 14 years she lived with the Husband in a de facto relationship, is true.

   [51] Taking account of the Briginshaw considerations.

6. Generally, where the Husband’s and Wife’s evidence is in conflict, in the absence of any independent evidence I have preferred the evidence of the Wife. The evidence is that they lived together and publicly and privately they presented as a de facto couple.  Loans were taken out and the mortgage was extended, all whilst the Wife remained living and working out of the home and raising children, and contributing significantly from her wages.  As can be seen in these reasons, there are many aspects of the Husband’s evidence which are either inconsistent with the evidence of the Wife or where the Husband’s evidence in all of the circumstances has been rejected as illogical. Having considered all of the evidence and the Husband’s overarching proposition, I find his evidence unconvincing.  The Husband is attempting to cast a cloud of artificiality over the whole relationship which is not in line with the reality.  

7. For example, he maintained that for 14 years they lived together and travelled together as companions while his position was that the Wife was unpredictable and angry.  But at the same time he engaged in sexual banter with the Wife and was photographed with the Wife on various occasions in scenes that one might consider typical of a married couple. I have accepted the evidence of their eldest son Mr B. The Husband could not properly explain these anomalies which suggested a degree of intimacy not expected in a platonic relationship. Overall, I consider that the totality of the evidence was antithetical to the Husband’s denial of sexual relations with the Wife.  His various interactions with his eldest son Mr B in November 2017 prior to the Wife leaving him May 2018, that we are going our own separate ways, and that the Wife was having a life without me are not the kind of messages I would have expected to read if the Husband was merely ending an arrangement with a “companion” to whom he was indifferent. On the Husband’s evidence, by November 2017 he and the Wife had been going their own separate ways and he was having a life without the wife for the past 13 or 14 years. 

8. Overall, I accept the evidence of the Wife that she was in a genuine domestic relationship with the Husband as his de facto wife from the end of 2006 until May 2018.    I am satisfied that by this time the wife had moved back into the matrimonial bed and the parties had reconciled.

9. I am satisfied that the Husband and Wife have lived and shared a life as a couple in a genuine domestic relationship.  I am satisfied that they used their joint endeavours and financial resources together to share the financial load for themselves and the family and  that they have shared their family and personal lives with each other.  I am satisfied examining their overall situation to arrive at the composite picture of the lives of the husband and Wife, that they have each conducted their lives as a de facto couple.

10. There was much time spent during the trial examining documents, however, I have not found any document to be unequivocal as to a particular date.  Examining the documents in isolation is also not helpful as more clarity is obtained by looking at the documents in the context of the lives they lived together over the 14 years.  The Husband’s narrative is inconsistent with his own actions and the facts of the situation. The Wife was not living in an artificial construct. Having reconciled, the Husband and Wife chose to live together, chose to travel together and chose to continue raising their children. I accept that this occurred from late 2006 until May 2018 during which I am satisfied that they lived together in a de facto relationship.

11. I am satisfied that the Husband and Wife have lived and shared a life as a couple in a genuine domestic relationship.  I am satisfied that they used their joint endeavours and financial resources together to share the financial load for themselves and the family and  that they have shared their family and personal lives with each other.  I am satisfied examining their overall situation to arrive at the composite picture of the lives of the Husband and Wife, that they have each conducted their lives as a de facto couple.

Orders

1. For the reasons set out, I intend to make a declaration as sought by the Applicant Wife that pursuant to s90RD of the Family Law Act 1975 (Cth) that the parties were in a de facto relationship from 2006 until 3 May 2018.

2. The Application by the Respondent Husband for a declaration that the parties did not live in a de facto relationship after separation in 2003 is dismissed. The Application by the Respondent Husband seeking a declaration that the relationship between the parties concluded at their separation date on 31 July 2003 and thereafter a de facto relationship did not ever commence is dismissed.

I certify that the preceding two hundred and seventy-four (274) paragraphs are a true copy of the reasons for judgment of Judge Willis AM

Associate: 

Date:  29 June 2021