Sandison & Thornhill (No 2)
[2023] FedCFamC1F 262
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Sandison & Thornhill (No 2) [2023] FedCFamC1F 262
File number: NCC 1503 of 2016 Judgment of: HENDERSON J Date of judgment: 14 April 2023 Catchwords: FAMILY LAW – DE FACTO RELATIONSHIPS – Existence of a de facto relationship – Where the applicant asserts the parties were in a de facto relationship for approximately two and a half years – Where the respondent denies a de facto relationship existed between the parties – Where the parties have a child together and were in a sexual relationship – Where the applicant’s evidence in these proceedings is contradictory to her evidence in previous family law proceedings and representations made to Centrelink – Credit of the applicant impugned – Adverse inference drawn against the applicant in not calling her mother as a witness – Finding the applicant’s evidence and representations made in previous family law proceedings are consistent with the respondent’s case that no de facto relationship ever existed between them – Finding that section 4AA of the Family Law Act 1975 (Cth) does not require parties to have lived in the same residence as a requirement to enable a finding of the existence of a de facto relationship – Declaration made that no de facto relationship ever existed – Orders made for filing of written submissions in relation to costs – Orders made directing the parties to address whether the applicant’s legal representatives should be liable for some or all of the respondent’s costs. Legislation: Family Law Act 1975 (Cth) ss 4AA, 4AA(1)(c), 4AA(2)(a), 4AA(2)(b), 4AA(2)(c), 4AA(2)(d), 4AA(2)(e), 4AA(2)(f), 4AA(2)(h), 4AA(2)(i), 90RD, 90SB(a), 90SB(b), 90SM.
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 67–68
Interpretation Act 1987 (NSW) s 21C
Property (Relationships) Act 1987 (NSW) s 4
Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) r 4(c)
Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) r 4.1.3
Federal Circuit and Family Court of Australia, Family Law Case Management – Central Practice Direction, 28 November 2022
Cases cited: [2014] FCCA 589
Fairbairn v Radecki (2022) 64 Fam LR 604; [2022] HCA 18
Herford & Berke (No 2) (2019) FLC 93-919; [2019] FamCAFC 182
Jonah & White (2011) 45 Fam LR 460; [2011] FamCA 221
Jonah & White (2012) FLC 93-522; [2012] FamCAFC 200
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Mayson & Wellard (2021) 64 Fam LR 111; [2021] FamCAFC 115
Moby & Schulter (2010) FLC 93-447; [2010] FamCA 748
Ricci & Jones [2011] FamCAFC 222
Sandison & Thornhill [2019] FamCA 85
Sandison & Thornhill [2022] FedCFamC1F 894
Sinclair & Whittaker (2013) FLC 93-551; [2013] FamCAFC 129
Smoje v Forrester [2017] NSWCA 308
Yesilhat v Calokerinos [2015] NSWSC 1028
Yesilhat v Calokerinos [2021] NSWCA 110
Division: Division 1 First Instance Number of paragraphs: 267 Date of hearing: 13–15 March 2023 Place: Sydney Counsel for the Applicant: Mr Mueller Solicitor for the Applicant: Lindeman Lawyers Counsel for the Respondent: Ms Gillies SC Solicitor for the Respondent: Lander and Rogers ORDERS
NCC 1503 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS THORNHILL
Applicant
AND: MR SANDISON
Respondent
order made by:
HENDERSON J
DATE OF ORDER:
14 APRIL 2023
THE COURT DECLARES THAT:
1.Pursuant to section 90RD(1) of the Family Law Act 1975 (Cth), a de facto relationship (as defined in section 4AA of the Family Law Act 1975 (Cth)) never existed between the parties, namely Ms Thornhill and Mr Sandison.
AND THE COURT ORDERS THAT:
2.The Response to Initiating Application filed on 25 July 2016, which seeks a declaration of de facto relationship, is dismissed.
AND THE COURT FURTHER ORDERS THAT:
3.The Respondent is to file and serve written submissions within 28 days on the following:
(a)The Respondent’s costs of and incidental to the Response to Initiating Application filed on 25 July 2016; and
(b)Whom should be liable for the Respondent’s costs, including but not limited to the legal representatives of the Applicant;
with such written submissions to be no longer than 25 pages excluding annexures.
4.Thereafter, the Applicant is to file and serve written submissions in response within 28 days, with such written submissions to be no longer than 25 pages excluding annexures.
5.Thereafter, should he elect to do so, the Respondent is to file and serve written submissions in reply within 7 days, with such written submissions in reply to be no longer than 5 pages excluding annexures.
AND THE COURT NOTES THAT:
A.The written submissions in relation to costs are to comply the relevant rules in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), in particular, Chapter 12.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sandison & Thornhill has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HENDERSON J:
The matter of Thornhill and Sandison was a hearing of a threshold issue as to whether the parties were in a de facto relationship pursuant to section 90RD of the Family Law Act 1975 (Cth) (“the Act”).
The applicant asserts that the parties were in a de facto relationship from 2 April 2013 to 26 December 2015, that they shared various houses together, being her house at Suburb E and then at Suburb T.
The respondent denies any de facto relationship existed, but admits the parties were in a relationship, being a casual sexual relationship, from December 2011 to November 2015. The respondent agreed the parties consensually agreed to have a child, but otherwise did not live, at any time, together in any property and did not live together as a couple on a genuine domestic basis or share a common residence.
THE HEARING
The hearing occurred over three days from 13 to 15 March 2023.
The applicant was represented by Mr Mueller of counsel and the respondent represented by Ms Gillies of senior counsel.
Only the parties gave evidence.
DOCUMENTS AND EXHIBITS
The material read was as follows:
(1)For the applicant (as stated in her Case Outline):
(a)Case Outline filed on 28 February 2023;
(b)Response to Initiating Application filed on 25 July 2016;[1]
[1] The applicant in this de facto threshold application was listed as the respondent in the substantive proceedings, as the question of whether the parties were in a de facto relationship was first raised in this Response to Initiating Application.
(c)Affidavit of Ms Thornhill filed on 14 February 2020;
(d)Affidavit of Ms U (a domestic worker formerly employed by the applicant) filed on 31 January 2018; and
(e)Affidavit of Ms V (a former neighbour of the applicant while living at the Suburb T property) filed on 31 January 2018.
(2)For the respondent (as stated in his Case Outline):
(a)Case Outline filed on 24 February 2023;
(b)Reply filed on 12 October 2022;
(c)Affidavit of Mr Sandison filed on 6 March 2020;
(d)Affidavit of Mr BB (a tradesperson employed by the respondent to renovate his house) filed on 30 August 2018;
(e)Affidavit of Ms CC (the respondent’s sister) filed on 30 August 2018;
(f)Affidavit of Ms DD (the respondent’s personal assistant) filed on 30 August 2018; and
(g)The applicant’s Response to Initiating Application filed on 25 July 2016.
Documents tendered and marked as exhibits were as follows:
(1)For the applicant:
(a)A statement of Ms Thornhill signed and dated 13 March 2023 (“the applicant’s statement”) (Exhibit A1); and
(b)Costs Notice filed on 17 March 2023 (substituted for a Costs Notice filed on an earlier date) (Exhibit A2).
(2)For the respondent:
(a)Case Outline prepared on behalf of Ms Thornhill dated 9 October 2017 (Exhibit R1);
(b)Costs Notice filed on 9 March 2023 (Exhibit R2);
(c)An index and a tender bundle of documents from the proceedings SYC 1290 of 2013 (Exhibit R3):
(i)Financial Statement filed by Ms Thornhill on 4 November 2013;
(ii)Financial Statement filed by Ms Thornhill on 10 December 2013;
(iii)Affidavit of Ms Thornhill filed on 10 December 2013;
(iv)Affidavit of Ms Thornhill filed on 4 March 2014; and
(v)Reasons for Judgment delivered by Judge Kemp on 26 March 2014;[2]
(d)A bundle of documents containing pages 61–62 of the affidavit of Ms Thornhill filed on 4 December 2017 and ‘ABN Lookup Historical details’ extracted 10 March 2023 (Exhibit R4);
(e)Items 1–11, 13–20 of the annexures to the affidavit of Mr Sandison filed on 6 March 2020 (Exhibit R5); and
(f)A one-page aide memoire prepared in relation to paragraphs of affidavits filed by Ms Thornhill which were referred to during her cross-examination (Exhibit R6).
[2] [2014] FCCA 589 (Judge Kemp); Exhibit R3 (Item 5).
For the reasons that follow, the applicant has failed to satisfy me that, on the balance of probabilities, the parties were in a de facto relationship at any time.
CHRONOLOGY
In 1960, the respondent was born, and at the hearing’s conclusion was 62 years of age.
In 1974, the applicant was born, and at the hearing’s conclusion was 48 years of age.
Prior to 2008 and throughout the parties’ relationship, the respondent lives at his property at EE Street, Suburb FF (“the Suburb FF property”), with two of three of his children from a previous marriage.
In 2008, the applicant and respondent first meet while the applicant was a client of the respondent. The applicant continued to be a client of the respondent until around late 2011, when she told the respondent that her marriage with Mr GG had broken down.
At this time, the applicant was married to Mr GG, and they had three children; W, Y, and Z. They were living in a property at 1 HH Street, Suburb E from 2008 to early 2012, when Mr GG moved out to 2 HH Street, Suburb E.
In late 2011, the parties commence a relationship as boyfriend and girlfriend, i.e. dating.
In 2012, the respondent lent the applicant and her sister $150,000 to invest in a project, and the parties entered into a formal contract with JJ Company.
In late 2012, the respondent placed a bid for a ring at an auction, purchased it, and gave it to the applicant.
In late 2012, the applicant tells the respondent that she is pregnant. Upon being told this, the respondent commences paying the applicant $1,000 per week into the applicant’s sister’s bank account, for the support of X, who was yet to be born. The applicant also moves from the 1 HH Street, Suburb E property to 2 HH Street, Suburb E property, along with her three children. It is unclear when Mr GG moved out of this property.
The applicant asserts that the parties’ de facto relationship commenced on 2 April 2013, and further asserts this is when the respondent began living with her full-time.
On 15 May 2013, the applicant sends an email to the respondent about their relationship.
In 2013, the parties’ child, X, is born and at the hearing’s conclusion was 9 years old. At this time, the applicant is living at the 2 HH Street, Suburb E property. X was born prematurely and required 24-hour care for a period of time.
A week later, the applicant completes, signs, and submits a Newborn Child Claim for Paid Parental Leave Application to Centrelink.
In mid-2013, the respondent’s two children move out of the Suburb FF property.
On 27 August 2013, the substantive proceedings between the applicant and Mr GG in the Federal Circuit Court of Australia (as it was then known) were commenced (“the proceedings”).
On 6 September 2013, the applicant sends an email to the respondent about their relationship.
On 4 November 2013, the applicant files a Financial Statement in the proceedings, where she deposed to have no other income earners in her household and that no expenses were being paid by others for her benefit.
In late 2013, the applicant completes, signs, and submits a Child Care Benefit/Rebate Application to Centrelink.
On 10 December 2013, the applicant files a second Financial Statement in the proceedings, where she deposed to have no other income earners in her household and that no expenses were being paid by others for her benefit. The applicant also files an affidavit in the proceedings, where she deposed to not be living with the respondent.
On 20 January 2014, the applicant sends an email to the respondent about their relationship.
On 19 February 2014, the applicant sends an email to the respondent about their relationship.
On 21 February 2014, the respondent receives a subpoena to produce documents in the proceedings. The respondent engages lawyers to respond that he is not in a de facto relationship with the applicant.
On 25 February 2014, the respondent pays $15,000 directly to the applicant’s lawyers in the proceedings to pay the fees for a forensic accountant.
On 4 March 2014, the applicant files a further affidavit in the proceedings, where she deposed to not be living with the respondent.
On 14 March 2014, the applicant sends an email to the respondent about their relationship.
On 26 March 2014, Judge Kemp delivers Reasons for Judgment in the proceedings.[3]
[3] [2014] FCCA 589 (Judge Kemp); Exhibit R3 (Item 5).
In May 2014, the number 1 HH Street, Suburb E property is sold and the applicant moves into the property at KK Street, Suburb T (“the Suburb T property”), which the applicant’s children and mother commence living there as well. The respondent loans the applicant $20,000 to assist with the initial payment of the bond and rent, which was paid back in five tranches.
On 12 May 2014, the applicant sends an email to the respondent about their relationship.
On 15 July 2014, the applicant sends an email to the respondent about their relationship.
In late 2014, the respondent purchases a second ring for the applicant.
On 2 November 2014, the applicant sends an email to the respondent about their relationship.
In December 2014, the proceedings are resolved by consent. The respondent then commences paying $420 per week in child support to the applicant.
In early 2015, the respondent loans the applicant a car so she can transport X.
On 14 May 2015, the applicant sends an email to the respondent about their relationship.
In mid-2015, the applicant issues a quote to the respondent with respect to the interior styling of the Suburb FF property.
In November 2015, the respondent asserts the relationship ended, which I accept to be correct.
On 22 December 2015, the parties attend a mediation together regarding the parenting arrangement for X.
The applicant asserts that the de facto relationship ended on 26 December 2015.
In or around early 2016, the applicant moves out of the Suburb T property to Suburb L with her children and X.
In mid-2016, the respondent moves out of the Suburb FF property to Suburb S.
On 17 June 2016, the respondent commences proceedings in the Federal Circuit Court of Australia.
On 25 July 2016, the applicant files a Response to Initiating Application, seeking a declaration that the parties were in a de facto relationship.
In late 2016, after the respondent missed two payments of the $420 per week, the applicant makes an application for a child support assessment, which was assessed at $317 per week.
In early 2017, the respondent makes a change of assessment application.
In mid-2017, the respondent’s change of assessment application is rejected, to which the respondent objects to the decision.
On 23 August 2017, the applicant files an affidavit asserting that the parties’ alleged de facto relationship ended on 28 November 2015.
In October 2017, the respondent’s objection is upheld to adjust the applicant’s taxable income, and the child support assessment becomes $271 per week.
In early 2018, the respondent makes a Freedom of Information (“FOI”) request to the Department of Human Services to produce the Centrelink documents, and these documents were before the Court.
On 25 February 2019, Johnston J delivers Reasons for Judgment in relation to interim parenting arrangements for X.[4]
[4] Sandison & Thornhill [2019] FamCA 85 (Johnston J).
On 14 February 2020, the applicant files an affidavit, which is the only affidavit of the applicant relied upon to prove that the parties were in a de facto relationship.
On 3 March 2020, final parenting orders in relation to X are made by consent.
On 6 March 2020, the respondent files his consolidated affidavit with respect to the de facto threshold issue.
On 20 September 2022, orders are made where the applicant pleads guilty without reasonable excuse to 18 breaches to the orders of 3 March 2020.
On 18 November 2022, orders and Reasons for Judgment are delivered by Carter J with respect to penalty of the 18 breaches of the orders of 3 March 2020.[5]
[5] Sandison & Thornhill [2022] FedCFamC1F 894 (Carter J).
THE EVIDENCE
For the reasons that follow, I have found that the applicant is not a witness of truth, and I cannot accept anything she has said, deposed or proffered as evidence in these proceedings, unless the respondent has agreed or there is independent, objective evidence to support her case.
The applicant’s evidence was an attempt to cover up what she now asserts were lies in the 2014 proceedings with more recent inventions. This conduct is at the extreme end of credibility and has only frustrated the Court processes and proper administration of justice, in that a hearing at cost to the respondent and the public was necessary to demonstrate that the story the applicant told in these proceedings is but a fabrication.
Affidavit evidence and exhibits
The only evidence before the Court that could support the existence of a de facto relationship, within the meaning of the Act,[6] is that contained in the applicant’s affidavit together with her oral evidence, as the entirety of the remaining evidence, being the respondent’s case and oral evidence, did not support the existence of a de facto relationship. The facts in her affidavit were inconsistent with her affidavits deposed in the 2014 proceedings and there were inconsistencies in her oral evidence.
[6] Family Law Act 1975 (Cth) s 4AA.
Despite this glaring flaw in her case, counsel for the applicant submitted that as to the question of the existence of a de facto relationship is a matter of law, on the accepted facts and laying great emphasis on the fact that the parties had a child, I could find a de facto relationship existed between them.
The flaw in this argument is that I must, where there is a contest, as there is here, determine the facts enabling me to make a finding as to a matter of law. Further, the applicant must prove the existence of a de facto relationship and it is not for the respondent to prove a de facto relationship did not exist.[7] The applicant’s credibility was shattered at the hearing, as will become apparent, resulting in the respondent’s evidence being preferred and ipso facto the applicant failing to prove her case.
[7] Mayson & Wellard (2021) 64 Fam LR 111 at [29]–[30] (Strickland, Ryan and Kent JJ).
The accepted facts are:
(1)The parties agreed to have a child;
(2)The parties did not share finances;
(3)The respondent gave the applicant two rings; one ring in late 2012 and one in late 2014. The applicant asserted the 2012 ring was an eternity ring and the 2014 ring was an engagement ring. The respondent agreed he purchased these rings for the applicant but denied her assertions as to their meaning;
(4)From late 2012, before X’s birth, the respondent paid $1,000 per week to the applicant, which continued until late 2014 when it reduced to $420;
(5)The applicant describes a family celebration with her extended family, but that the parties did not tell the anyone at the function about the applicant’s pregnancy;
(6)The applicant and respondent attended events together such as birthday parties for her aunt, cousins and grandmother, a dinner party, her grandmother’s funeral, Y’s first day at school and events with the extended Sandison family;
(7)The respondent attended various gynaecological appointments with the applicant, and was with her when she went into premature labour;
(8)The respondent caused X and the applicant to be covered under his health insurance;
(9)The respondent stayed overnight with the applicant on Christmas Eve in 2012 and participated in exchanging gifts with the applicant and her children on Christmas Day;
(10)After X’s birth, the respondent attended the applicant’s house more frequently to assist in the care of X, which was approximately “four to five times per week in 2013”;
(11)The respondent paid $15,000 directly into the trust account of the applicant’s solicitor in the 2014 proceedings to pay for an expert’s fee;
(12)The parties engaged in sexual activity; and
(13)The respondent provided the applicant with a loan of $20,000 in mid-2014 when the applicant moved into the Suburb T property, which the applicant repaid.
These are matters the respondent accepts.
The applicant made the following assertions which were denied by the respondent:
(1)The applicant said when she told the respondent that she was pregnant with X, he said to her:
We’ll sit down soon and discuss things.
There was no evidence of any discussion in this regard in her material and the asserted conversation is denied;
(2)The applicant deposed that she spent time at the respondent’s house, including overnight time, when her own children were with Mr GG and that the respondent came to the applicant’s house every night for dinner; and
(3)The respondent would spend on average one overnight per week at her house and leave in the morning. It was not clear whether this was at the Suburb E property or the Suburb T property, but in oral evidence, deposed this was at both houses.
In her affidavit, the applicant deposed:
27.In early 2013 I was going through a property settlement with [Mr GG]. I didn’t want [Mr GG] to know that I was in another relationship. In or around [early] 2013 I had a conversation with [Mr Sandison] using words to the effect:
He said:“I’ll give you money to contribute to the household and I’ll pay for your legal fees in your family law matter. But you need to be careful because you don’t want my finances taken into account when they divide up assets with your ex”.
I said:“Ok, so what should I do?”
He said:“I’ll could pay money into your sister’s account and you can work it out with her. You need to try and make out that we are not really together in [Mr GG’s] eyes”.
I said:“Ok”.
(As per the original after objections)
This conversation is denied by the respondent.
The respondent did not pay her legal fees in the 2014 proceedings, as asserted by the applicant, and this was a falsehood.
The applicant deposed to a conversation with her sister Ms LL, who lives in the United States of America, as follows:
28.In or around the beginning of 2013 I had a conversation with my sister, [Ms LL], using words to the effect:
I said:“[Mr Sandison] is going to give me some money every week and it would be best if it went into your bank account. Would that be okay?”
She said:“No problems. I’ll set up internet banking and give you the details so that you can access the money”.
I said: “Thanks”.
(As per the original)
The respondent agreed he paid money into the applicant’s sister’s account as he was asked to do so by the applicant. He denies any other involvement in this scheme and was candid in cross-examination that he thought it was a little odd and had an air of secrecy about it:
MR MUELLER: Why didn’t you transfer it [the $1,000] to [Ms Thornhill] directly?
THE RESPONDENT: [Ms Thornhill] didn’t have – she didn’t have her own bank account. She only had a joint account, she said. And she’s asked me to transfer it to this account.
HER HONOUR: Because [Ms Thornhill] told you she didn’t have her own account, only a joint account with [Mr GG], was it?
THE RESPONDENT: Correct, yes. Yeah she only had a joint account.
…
MR MUELLER: You didn’t suggest to [Ms Thornhill], “Why don’t you open your own bank account on your own?”, didn’t you?
THE RESPONDENT: No.
MR MUELLER: So you didn’t think that it had an element of secrecy by transferring the $1,000 per week to [Ms Thornhill’s] sister instead of asking her, “Can I transfer directly to your account?”?
THE RESPONDENT: [Ms Thornhill] told me she didn’t have a separate account.
MR MUELLER: Is this your honest evidence to this Court that you did not think that there was a level of secrecy in transferring the money to [Ms Thornhill’s] sister’s account instead of asking her to set up an account – is that your honest evidence to this Court?
…
THE RESPONDENT: Was there a level of secrecy?
MR MUELLER: Yes.
THE RESPONDENT: Yes.
…
MR MUELLER: Did you suggest to her, “Why don’t you open your own bank account?”?
THE RESPONDENT: No.
MR MUELLER: Did you say that was a bit odd? …
THE RESPONDENT: I did think it was odd, yes.
MR MUELLER: And why do you think it was odd?
THE RESPONDENT: Because it had an element of secrecy about it.
MR MUELLER: And did you draw a link between the secrecy and the proceedings with [Mr GG]?
THE RESPONDENT: Well, it was just odd.
The respondent deposed in his affidavit:
Financial support provided for [X]
110.From the time [X] was born, until [late] 2014, I paid money to [Ms Thornhill] for [X’s] support on an ad hoc basis. At [Ms Thornhill’s] request, funds were paid to a National Australia Bank account in the name of [Ms Thornhill’s] sister, [Ms LL]. I recall [Ms Thornhill] said to me words to the effect “I don’t have my own account, [Mr GG] and I only have a joint account, so please pay funds to my sister”. …
(As per the original)
What appears on page 10 of 31 in the Child Care Benefit/Rebate Application form dated late 2013, and completed by the applicant, is a request for parenting benefits to be paid into a MM Bank account in the name of Ms Thornhill. Thus, she did have an account in her name at this time and was not truthful to the respondent at the time nor to this Court.
I have formed the view, consistent with the respondent’s evidence, that the applicant set upon a course of conduct to keep secret from Mr GG and the Department of Human Services, information that she was receiving $1,000 per week from the respondent for the support of herself in her pregnancy and for the support of X, and this was an activity carried out by the applicant to avoid the consequences of having to declare to Mr GG and Centrelink that she was receiving this money. This scheme has nothing to do with the respondent and everything to do with the applicant. It is an inescapable finding that the applicant engineered this scheme to avoid having to declare this income in the 2014 proceedings or to Centrelink, and she did not do so at any time.
The $1,000 per week was paid into the applicant’s sister’s bank account from late 2012 and the respondent admitted where the words “chuppa” are noted in the bank statements, that this payment was made by him to her. During cross-examination, the respondent corrected his affidavit to read that he commenced paying this $1,000 per week once he found out that the applicant was pregnant, and this money was paid for the benefit of X, who was not yet born.
The applicant deposed that the respondent purchased Motor Vehicle 1 for her use at the end of 2013. The respondent’s evidence was that this car was provided to the applicant for the benefit of X and until receipt by her of monies from the 2014 proceedings.
The objective evidence was that the car was bought in 2015, some two years after the applicant originally asserted it had been purchased for her. I do not accept her evidence and find the car was never purchased for her by the respondent.
The applicant asserted that the parties had sent out Christmas cards as a couple and birth announcements for X:
67.In or around December 2015 we mailed out Christmas cards from the [Thornhill Sandison] Family. …
(As per the original)
The respondent’s evidence was he had no involvement in this nor was he aware of any cards being sent out. Further, there is no evidence from anyone the applicant asserts she sent these cards or announcements to, including her own family members, and I reject this evidence.
The applicant deposed that the respondent attended the first day of school for Y and a photo was taken of the event. The respondent accepted he did attend, but this was to care for X and allow the applicant to spend time with Y on his first day of big school. I accept the respondent’s evidence on this issue.
The respondent agreed that he suggested to the applicant that she move away from Suburb E, where Mr GG lived, because, to use the words of the applicant in her 6 September 2013 email to the respondent, Mr GG was a “controlling, abusive, rude selfish” ex-husband. The respondent agreed such a move meant the applicant and X would be closer to him, and he would be closer to X.
The applicant was cross-examined about the affidavit of Ms U, who she asserted was a domestic worker. The applicant said:
(1)Ms U worked full-time for her;
(2)Ms U worked for her while she lived at 1 HH Street, Suburb E property, and also at the 2 HH Street, Suburb E property; and
(3)Ms U worked for the applicant for another 18 months after late 2015, being until mid‑2017.
It was put to the applicant that Ms U had deposed she was still working for the applicant at the time she affirmed her affidavit in January 2018. The applicant replied:
She was not working for me. She was helping me. After that, she was not being paid.
It became apparent that the applicant had never read Ms U’s affidavit and there was a short adjournment to enable her to read the affidavits of her additional witnesses.
Upon resumption of cross-examination, the applicant’s evidence in relation to Ms U changed to:
(1)Ms U initially worked for the applicant on Tuesdays only, then Tuesdays and Thursdays until early 2016, and then back to Tuesdays only;
(2)Mr GG paid for Ms U from early 2016 to mid-2017; and
(3)Ms U worked for the applicant until 2018.
This attempt to reinvent her evidence so that it was consistent with the evidence of Ms U only served to further diminish the applicant’s credibility. Ms U’s evidence did not overcome the applicant’s mendacity.
A further example of the applicant’s inventions were invoices she issued to the respondent for the work she carried out at the Suburb FF property in 2015. The invoices contained an ABN for a business that the applicant purportedly operated at the time. Yet, the ABN on these invoices only came to existence some six months after the invoices were issued.[8]
[8] Exhibit R4.
What will become apparent is that the applicant’s evidence in the 2014 proceedings, including her financial statements and affidavits, and what she told the family consultant in that matter, namely that the parties were not in a de facto relationship, did not live together and only co‑parented their child, is consistent with representations she made in the Centrelink documents as to the status of their relationship and is consistent with the respondent’s evidence.
The respondent was clear with his answers under cross-examination and his answers were consistent with his affidavit evidence. He was unshaken in his evidence, and appropriately conceded the nature of the parties’ relationship, which was that they had a casual sexual relationship and had each determined to have a child.
Part of the applicant’s evidence was a statement tendered on the first day of the hearing, of further evidence she sought to rely upon.[9]
[9] Exhibit A1.
This document, rather than assist her case, further muddied the waters and is support for the finding I have reached that the applicant will change her story and say whatever she thinks will convince this Court that she and the respondent were in a de facto relationship.
For example, the applicant’s statement contains the following assertion:
4.[Mr Sandison] notes that in two financial statements that were filed on my behalf that I set out there was no other income earner in my household and no other person paid any expenses for my benefit.
(As per the original)
This is a correct statement and the consequences of her failure to declare the payments from the respondent, in documents filed in the 2014 proceedings, lies at her feet.
The applicant’s statement also provided some new evidence in relation to Mr GG as follows:
6. I were scared of [Mr GG]:
a) He had threatened to kill [Mr Sandison] …
b) He rang [Mr Sandison’s] office and tried to talk to him.
c)He assaulted me, which resulted in my hospitalisation. He was charged and a final ADVO was put in place for my protection following his guilty plea to the charge.
d) He contravened the ADVO and was refused bail.
e)He has a history of violent behaviour.
(As per the original after objections)
Yet, the applicant told the Court that Mr GG is a wonderful father, they had equal care of the children, and the children had not been affected by this behaviour.
The applicant deposed and the respondent agreed that they did not share finances. However, the applicant orally deposed that she used the net proceeds of the sale of her house owned by her and Mr GG – the 2 HH Street, Suburb E property – to support herself and the respondent, and that they agreed to do this because his money was tied up. This is a fiction and a recent invention. The respondent is a successful medical professional, who has cash and income and he did not need to use the applicant’s money to support himself. Further, her affidavit was silent on a discussion about this arrangement between them. The best her evidence came to was a broad statement that they were going to buy a house together, which statement was denied by the respondent.
The respondent’s evidence was that the monies he paid to the applicant (via her sister) was for the support of X and to assist the applicant at a difficult time being involved in stressful family law proceedings with a violent ex-husband, which stress was having a negative impact upon her as the mother of his child and not because they were in a de facto relationship.
The applicant’s statement endeavoured to explain her inconsistencies, evidentiary gaps, and the paucity of evidence to support her assertion that, within the meaning of the Act, the parties had a relationship as couple living together on a genuine domestic basis, as follows:
14.[Mr Sandison] refers to my affidavit filed 4 March 2014 where I depose that I wasn’t in a relationship with [Mr Sandison] at that time. [Mr Sandison] and I had a volatile relationship as is set out in a number of the emails that he exhibits to his affidavit. I broke up with him on numerous occasions during the course of our relationship only to then reconcile.
(As per the original)
There is not one description in her affidavit of any breakup or reconciliation, or even specific periods of time when they actually shared any residence for more than one night a week.
In relation to sharing a residence, the applicant’s evidence was inconsistent and unspecific. In cross-examination, the applicant’s evidence was initially that when she moved to the Suburb T property, the respondent stayed “every single night”. This evidence is inconsistent with the applicant’s statement that although they maintained their own houses, they slept together “nearly every night”.
In her affidavit, the applicant deposed that the respondent “was residing solely at [the Suburb T property]”, “slept at the [Suburb T] property every night” and that the respondent “returned to [the Suburb FF property] during the daytime occasionally”. The applicant said in cross-examination that they stayed at the Suburb T property “primarily”, and that she “often stayed at [the respondent’s] place in [Suburb FF]”. I am left to ponder what to make of these inconsistencies other than they support a finding that the parties never lived together at all, as was asserted by the respondent.
This finding is further supported as there is nothing in the applicant’s affidavit of breakups or separations, and the reason for this lacunae is they did not occur because they did not live together.
The applicant asserted that when the respondent was living with her at the Suburb T property, he was not paying rent until she had a discussion with him, which discussion was not particularised and denied by the respondent. Further, the respondent denied ever paying rent because he did not live at Suburb T.
The applicant also asserted in her affidavit that she and the respondent lived together, on a full‑time basis at the 2 HH Street, Suburb E property. Again, the applicant gave few details of this arrangement, sharing of costs and tasks, care for the children, and the like, and the consequences of such a change in living arrangements for her and her children.
At the hearing, the applicant said that the parties commenced a bona fide de facto relationship in early 2013, which continued until separation on 26 December 2015. The respondent disputes the date of separation
The respondent denied the parties ever lived together and he relied upon the following evidence from his additional witnesses.
Ms CC is the respondent’s sister-in-law. Objections were made to this affidavit, but Ms CC was not cross-examined and therefore there is no challenge to her un-objected evidence. Ms CC first met the applicant in mid-2013, and in late 2013, she attended a Christmas celebration at the respondent’s house. She asked him about the relationship, and he said in “quite a firm” tone:
We are only boyfriend/girlfriend, nothing more, it’s not a long term thing and we do not live under the same roof.
(As per the original)
Ms CC recalls that the parties and X were invited to the respondent’s extended family Christmas party in 2014, and the applicant queried with Ms CC’s husband why her children were not invited. Although the children ended up being invited, Ms CC deposed the following:
10.[Mr Sandison], [Ms Thornhill], [X] and [Ms Thornhill’s] three other children ended up attending the Christmas party. [Mr Sandison] was noticeable uncomfortable, I recall that he did not seem like himself at the party and he didn’t interact with the three children. When questioned by family members, including myself, [Mr Sandison] said words to the effect “we are not living together and have no plans to do so; [Ms Thornhill’s] other children are not my responsibility, they have their own father.” [H]owever, he was always clear that [X] was his son and his relationship/responsibilities extended to [X] only. I do not recall [Ms Thornhill] attending any other [Sandison] Family Christmas celebrations.
(As per the original after objections)
Ms CC deposed of another family event in early 2015, being a wedding in the respondent’s extended family. Ms CC provides a brief description of the wedding and goes on to say:
11. … I say this because:
…
(b)I also observed [Ms Thornhill] talking to a newly engaged couple and [Ms Thornhill] said words to the effect “that isn’t an engagement ring, the diamond is too small”. [Ms Thornhill] then thrusted her dress ring into their face and said “now this is an engagement ring”. I recall the couple looking upset and shocked by her behaviour.
…
12.I understand that while at the wedding [Ms Thornhill] said to a number of people words to the effect “[Mr Sandison] and I are married”. [Ms Thornhill] told everyone that the dress ring referred to above was an engagement ring. This news spread quickly amongst guests at the wedding. I approached [Mr Sandison] and questioned him intently. I said to him words to the effect “[Ms Thornhill] is telling family members that you and her are married, is this true? Promise me that this is not the case?”. [Mr Sandison] responded with words to the effect “No way, we are not married. This is not the case. [Ms Thornhill] is crazy”.
(As per the original after objections)
Ms CC also deposed that it was not unusual for boyfriends/girlfriends to appear on the Christmas calendar that is organised by the Sandison family each Christmas, where images of family members appear on each month, as did an image of the applicant, the respondent and X in one year. Ms CC could not recall ever receiving Christmas or birthday cards, or any birth announcement from the parties, as deposed by the applicant.
The respondent also relied upon the affidavit of Mr BB, who was a tradesperson that the respondent engaged in 2013, and then again from mid to late 2015. No objections were made to Mr BB’s affidavit nor was he called to give evidence, and his evidence is also unchallenged.
When Mr BB undertook the major works in 2015, he worked from 7.30am to 3.30pm–4.00pm, working on the interior and exterior of the Suburb FF property, including working on an outbuilding on the property, repairing rotten beams and awnings on the main house, redoing garage eaves, facia, roller door posts, cladding and side door, entry portico facia, gate and internals, the garage floor, external walls and windows of the main house, and preparing the nursery.
Mr BB deposed that he only ever received instructions from the respondent personally and therefore all invoices issued by Mr BB were addressed to the respondent. Because of a long commute between Suburb FF and his house, Mr BB accepted an offer from the respondent to stay in the outbuilding, and did so for two to three nights per week.
Mr BB deposed to having met the applicant before X was born, and that she came to the respondent’s house “a couple of times” per week in 2015, when was assisting with the Suburb FF property. Mr BB also says:
10.I do not recall seeing [Ms Thornhill] at night time or early in the morning while I was residing at [EE Street] [the Suburb FF property]. I did not often observe [Ms Thornhill] and [Mr Sandison] together at [EE Street]. When I did see them together, I recall it was usually in circumstances where [Mr Sandison] had come home early from work.
(As per the original with clarification)
Finally, Mr BB deposed that although he observed seeing X’s toys lying around the house, he could not recall observing any of the applicant’s belongings around the respondent’s house, and was under the impression the respondent resided there by himself, saying:
… I often observed a single plate and single wine glass in the sink at night time.
(As per the original)
Mr BB never saw the applicant’s other children at the respondent’s house, consistent with the applicant’s emails to the respondent that she was upset with him because he was excluding her children from their life. This was a significant point of contention. The applicant’s emails to the respondent are clear: he did not want to have any responsibility for, or in fact any relationship with, her children. The respondent was interested in X and X only.
Ms DD was the respondent’s personal assistant from early 2015 to mid-2017, and at the time of affirming her affidavit on 29 August 2018, was still employed by the respondent, but on maternity leave. Ms DD’s affidavit went into evidence unchallenged and without cross‑examination.
Ms DD deposed to the tasks that she was responsible for, including: washing and dry cleaning, bed-making, cooking meals, grocery shopping, general administration, payment of bills, meeting with tradespeople, and on occasions washing and putting away X’s clothes.
Ms DD deposed that she first met the applicant in 2015 when she attended the Suburb FF property with X, and she observed the applicant to have attended the Suburb FF property “on approximately two to three occasions” in 2015, but “she did not stay for longer than a few hours”, and she did not observe the applicant to stay overnight.
Ms DD deposed that she did not observe the applicant’s other children to ever attend the Suburb FF property, and that the respondent did not ask her to purchase groceries or cook for the applicant. Further, Ms DD only received instructions from the respondent with respect to any work she undertook. Ms DD deposed one example of this:
10. …
By way of example, I recall that in 2015 when [Mr Sandison] was overseas in [Country PP], [Ms Thornhill] contacted me by telephone and said words to the effect “can you give me access to the [Suburb FF] house as I do not have a set of keys, I know what [Mr Sandison] is away, please do not tell him about this request.” I responded words to the effect “I am not comfortable giving you the keys without [Mr Sandison’s] approval. I do not want to jeopardise my employment with [Mr Sandison], I am sorry [Ms Thornhill], I cannot give you the keys”. I thereafter contacted [Mr Sandison] who confirmed that he did not want me to give [Ms Thornhill] a set of keys. I do not recall [Ms Thornhill] having a set of keys to the [Suburb FF] property at any time.
(As per the original)
Finally, Ms DD deposed having never observed the applicant purchase groceries or other household items, or pay any bills.
The respondent’s position as to the nature of the parties’ relationship is clear; they were never in a de facto relationship, instead they were in a casual sexual relationship, but never lived together as they maintained their own separate houses and had no common intention to live together.
In the applicant’s statement, she says as follows:
11.When I was reading [Mr GG’s] affidavit with [Mr Sandison] I spoke with him using words to the effect:
I said: “What’s a de facto relationship?”
He said:“You don’t need to worry because we are not in one. You have to either have jointly owned property or be engaged”.
(Bold emphasis added)
In cross-examination, the applicant said the reason she did not disclose her de facto relationship in the 2014 proceedings was because the respondent told her they were not in one. This evidence of asking the respondent if they were in a de facto relationship is rejected by me, given the applicant had her own lawyers at this time and they were the people to ask, not her boyfriend. Further, her lawyers were well aware of the existence of X’s father at this time and would have clarified with her the nature of their relationship. This evidence was but a bald‑faced lie.
I accept that the respondent told the applicant they were not in a de facto relationship because they were not; a fact she agreed with in the 2014 proceedings and confirmed with Centrelink, as will become apparent later in these Reasons for Judgement.
Additionally, the respondent received a subpoena from Mr GG’s lawyers on 21 February 2014, as part of the proceedings. The respondent said he was confused as to why he received the subpoena, instructed his then lawyers to object to the production of documents, saying that he and the applicant “were not in a de facto relationship” and “confirmed that [he] did not intend to cohabit” with the applicant and no documents were produced by him.
The respondent further deposed in his affidavit:
69.I recall that in or around [mid] 2014, [Ms Thornhill] said to me words to the effect “I’m a single mother of four children and I am receiving Centrelink payments in recognition of that”. I recall that [Ms Thornhill] also said to me words to the effect “I will just do my own thing and you should get on with your life and continue to be independent”.
(As per the original)
2014 Proceedings documents
In an affidavit filed on 10 December 2013, the applicant deposed the following:
106.Since separation [Mr GG] has told me to manage on my own although I have no income and solely relying on Centrelink.
…
112.[Mr GG] also insists that my new partner, who does not live with me, should take over all the financial responsibility for the children, the mortgage, the card debts and the payments for the car totalling $1,956,536.20 which primarily accrued during the course of our marriage. [Mr GG] has also left me to pay the Former Matrimonial Home’s mortgage in the amount of $10,195 per month. My new partner and I do not have joint finances and we do not live together. We co-parent our son but we are not in a domestic relationship.[10]
(As per the original with clarification)
[10] Exhibit R3 (Item 3).
In an affidavit filed on 4 March 2014, the applicant deposed the following in response to an affidavit of Mr GG:
11.… I am not in a relationship with [Mr Sandison]. I do have a child with him, [X] for whom I am the primary carer. I co parent with [Mr Sandison] but we are not in a relationship and do not live together.
12.… I do not reside nor at any time nor I lived with [Mr Sandison]. He does not reside at my property of [2 HH Street, Suburb E]. On some occasions, when [X] has been sick, we take turns in his care and have had overnight stays. We have a very good friendship but unfortunately, the relationship broke down due to the stress [Mr GG] has been putting on me.[11]
(As per the original)
[11] Exhibit R3 (Item 4).
The assertion by the applicant as contained in paragraphs 11 and 12 of her affidavit filed 4 March 2014 in the proceedings describes precisely the relationship that the respondent asserts the parties had.
On 26 March 2014, Judge Kemp delivered Reasons for Judgment in the proceedings, wherein his Honour notes:
5. By way of background, the Court sets out the following:
f)[A] memorandum (which has become Exhibit “Court 2”) is quoted extensively below and records the following:
vii)The mother lives in [Suburb E] and cares full time for the children and her youngest child, [X] born […] 2013, who was then [less than a year] old. [X’s] father is [Mr Sandison]. [Mr Sandison] and the mother are in a relationship but do not live together.
…
6. By way of background facts, the Court notes:
h)The mother has a child with [Mr Sandison], namely [X], currently aged [less than a year]. The mother says that she is not currently in a de-facto relationship with [Mr Sandison] who lives at [EE Street, Suburb FF] but that they co-parent [X].[12]
(Bold emphasis added)
Paragraph 6(h) is consistent with the case put forward by the respondent in these proceedings.
[12] [2014] FCCA 589; Exhibit R3 (Item 5).
Centrelink documents
The respondent obtained Centrelink documents in the period that the applicant asserts a de facto relationship existed. These documents were produced by the Department of Human Services after an FOI request was made around early 2018, given the applicant’s failure to provide these documents when requested to do so. The Centrelink documents were tendered as part of an exhibit.[13]
[13] Exhibit R5.
The applicant was extensively cross-examined on the Centrelink documents, which included records relating to payment of the Family Tax Benefit (Part A and Part B), Newstart Allowance, Child Care Benefits, and Newborn Child Claim for Paid Parental Leave.
Newborn Child Claim for Paid Parental Leave Application dated mid-2013
This form was completed and signed by the applicant, which she admitted during cross‑examination. This was at a time shortly after X’s birth and it is an agreed fact that she was receiving $1,000 a week from the respondent.
On page 3 of 16, question 18 reads as:
Your partner’s (if you have one) relationship to this newborn child
(As per the original)
The applicant has not ticked any option.
This theme of questions relating to a partner not being completed and left blank is common throughout all the Centrelink forms.
On pages 7–8 of 16, questions regarding income from all sources received by the applicant are left blank.
The first information provided by the applicant with respect to monies received by her is on page 11 of 16, at question 62:
Use the following table to estimate your (and/or your partner’s) taxable income for the 6 month period since the date your newborn child first entered your primary care.[14]
(As per the original)
[14] The “6 month period” starts from the date from the newborn child first enters the care of the person applying, which the applicant provided that this period commenced in 2013.
Most responses in question 62 under the heading ‘You’, being the applicant, are “$0”. The applicant did state that her estimated taxable income from government pensions or benefits for the 6-month period would be “$7,200.00”, while child support to be paid for the 6-month period is estimated at “$6,000.00”. Further, in her own handwriting, as confirmed by her in cross-examination, under the child support payments column are the words:
… This is the amount for the 3 children I already have [with Mr GG] but he [Mr GG] doesn’t pay it. I will received nothing for my newborn.
(As per the original with clarification)
Meanwhile, “N/A” or strikeouts are the only information provided under ‘Your partner’.
Finally, on page 15 of 16, question 78 reads as:
Statement
I declare that:
•the information provided in this form is complete and correct.
…
(As per the original)
The applicant signed the form and dated it 14 June 2013.
It is apparent the applicant did not declare that she was receiving $1,000 per week from the respondent and did not declare that she had a partner in any form. The applicant submitted to Centrelink a position consistent with the respondent’s evidence and her evidence in the 2014 proceedings.
Under cross-examination on this failure to declare the monies received from the respondent, the applicant answered:
THE APPLICANT: I was not receiving any money for my newborn because I’d been receiving the money from [Mr Sandison] for a long time for myself. I didn’t put it to the newborn.
This answer typifies the entirety of the oral and written evidence of the applicant. When she was found out in a lie, she attempted to cover it up with another lie. This cover up lie did not assist her in any event, for had that been her belief, she should have declared this payment as income and she did not.
The applicant, being aware she had been caught out, provided a second lie to the Court. The applicant said when questioned on her failure to declare the monies being paid to her by the respondent or that he was her partner at the time, was that she spoke to a woman at Centrelink, explained what the relationship was and what was happening, and the woman told her she did not need to worry about disclosing the money or the relationship.
I reject her evidence that any employee of Centrelink would tell a person not to disclose money they were receiving from the parent of their child, given the purpose of Centrelink is to support parents and children who are unable to support themselves and to minimise this burden on the taxpayers of Australia.
In relation to not declaring the respondent as her partner, this evidence makes sense if the relationship she described to the woman at Centrelink was the relationship the respondent has consistently asserted they had and that she said it was in the 2014 proceedings, which is that they had a commitment to the support of X, but not to each other or a shared life, and they were not living together nor in a domestic relationship.
The applicant realised she had been caught out again and a third lie was told, namely that on multiple occasions, she had rung Centrelink to tell them of the receipt of $1,000 per week. There is no record of any such telephone call being made from the records produced under the FOI request. Centrelink would have never known this was occurring, even if they had accessed her banking records, because this money was being paid, at her direction, into a bank account in her sister’s name.
When asked why she did not declare the payment of this money in her two financial statements filed in the 2014 proceedings,[15] the applicant told her fourth lie and said that her lawyers at that time told her this money was not relevant to put in her financial statement. I reject that evidence as scandalous.
[15] Exhibit R3 (Items 1 and 2).
This too is a feature of the applicant’s evidence; blaming her lawyers, unknown people working in government departments, the respondent, and anyone else she has involved in this charade of lies.
In the applicant’s statement, it is asserted:
10.[Mr Sandison] was fully involved in assisting me with my proceedings relating to [Mr GG]. At paragraph 71(b) of [Mr Sandison’s] affidavit, he refers to my not informing Centrelink that I was in a registered or de facto relationship. I did not think that I was in a de facto relationship at the time.
(As per the original with clarification)
This is likely the one truthful statement the applicant has made, namely she was not in a de facto relationship at this time.
The applicant and only the applicant is responsible for the web of deceit she has perpetrated upon the Court and Centrelink. I reject the applicant’s scurrilous evidence that in some way the respondent had any involvement in her subterfuge, given she was legally represented throughout the majority of these proceedings, and was represented at that time.
Child Care Benefit/Rebate Application dated late 2013
This form was completed and signed by the applicant, which she admitted during cross‑examination. This was at a time where the applicant said that she and the respondent had been living at her house in the 2 HH Street, Suburb E property every night, full-time, since around early 2013, prior to X’s birth in 2013.
On page 4 of 31, a heading appears “Your partner (if you have one)”. The question has been answered as “N/A”, which was handwritten.
On page 5 of 31, a heading appears “Your partner on 30 June 2013”. Again, the questions are answered “N/A”, which have been handwritten.
On page 6 of 31, the applicant has handwritten her permanent address as 2 HH Street, Suburb E.
On page 7 of 31, question 17 reads as:
What was your relationship status on 30 June 2013?
(As per the original)
The applicant has handwritten that she was separated on 24 November 2011 and divorced in mid-2013. This is referring to Mr GG.
On the same page, question 18 reads as:
If you had a partner on 30 June 2013, were you in a relationship with them for only part of the 2012–2013 financial year?
(As per the original)
The applicant has ticked ‘No’.
Further down, question 19 reads as:
Do you give permission for your partner to discuss your payments with us?
(As per the original)
The applicant has ticked ‘No’ and handwritten “No partner?”.
Further down again, question 20 reads as:
Do you want to authorise another person or organisation to make enquiries, get Centrelink payments and/or act on your behalf?
(As per the original)
The applicant has ticked ‘No’.
Over various following pages, questions relating to a partner have either been crossed out or left blank.
On page 11 of 31, the applicant was required to give details of “all eligible child(ren) who were in [her] care during the 2012–2013 financial year”. Despite the applicant having four children in 2013, three children from her marriage with Mr GG, and X, only Z appears on the form.
On page 12 of 31, which relates to the child nominated as ‘Child 1’ (i.e. Z), question 47 reads as:
What percentage of care did you have [Child 1] for the 2012–2013 financial year?
(As per the original)
The applicant has handwritten “100%” and added “365” in a sub-question asking how many nights the child was in her care for the aforementioned period. No details of any other child has been provided in this application.
The assertion the applicant had “100%” care of the Thornhill child/children was inconsistent with her oral evidence, which was that Mr GG was a wonderful father and they had an equal time arrangements for their children, and that she would never stop Mr GG from seeing their children because he never behaved poorly in front of the children.
The applicant did not provide any details in respect of Y or W, and X, and crossed out parts of the application form where she should have provided these details, even though the form provides for details of four children to be included.
On pages 24–25 of 31, the applicant has handwritten “$0” on the following sub-questions contained in question 65:
(1)Estimated taxable income from salary and wages;
(2)Estimated taxable income from lump sum payment(s);
(3)Estimated taxable income from business or self-employment;
(4)Estimated taxable income from investments;
(5)Estimated taxable income from real estate;
(6)Estimated taxable income from government pensions or benefits;
(7)Other estimated taxable income;
(8)Total estimated taxable income (the sum of items 1–7 above);
(9)Reportable fringe benefits;
(10)Reportable superannuation contributions;
(11)Total net investment losses;
(12)Foreign income; and
(13)Tax exempt foreign income.
The applicant only reports the following in the sub-questions to question 65:
(1)For ‘tax free pensions and benefits’, the applicant has handwritten “$10,500”; and
(2)For ‘child support paid’, the applicant has handwritten “$742.00 per month”.
Question 65 also contains a column for answers to be provided for each sub-question in relation to “your partner”; no information is provided.
On page 26 of 31, question 69 reads as:
Did you have a partner at any time during the 2012–2013 financial year?
(As per the original)
The applicant has ticked ‘No’.
On the same page, question 71 reads as:
During the 2012–2013 financial year, were you in a relationship with someone other than the partner you had on 30 June 2013?
(As per the original)
The applicant has ticked ‘No’.
Finally, on page 31 of 31, question 92 reads as:
Statement
I declare that:
•the information provided in this form is complete and correct.
…
(As per the original)
The applicant signed and dated the form 14 November 2013.
Email correspondence
The applicant sent the respondent various emails during their relationship, which were tendered as evidence in the respondent’s case.[16]
[16] Exhibit R5.
On 15 May 2013, the applicant sent an email to the respondent, saying inter alia:
Not that I would expect you to know any of this because only in the last two months have you been around for two nights a week and I would rather not drag this sorry excuse of a relationship into deeper depths of disaster than it already is! …
I would seriously prefer to be on my own (as I am majority of the time) …[17]
(As per the original)
[17] Exhibit R5 (Item 2).
On 6 September 2013, the applicant sent an email to the respondent, saying inter alia:
… We have a child together and are still in a relationship so whilst that does not make you responsible for his kids they would rule you are responsible for me and your son!
… You talk about leading separate lives ... You couldn’t get anymore separate than that! …
…
YOU’RE THE ONE WHO DOESN’T WANT TO LIVE TOGETHER!
YOU’RE THE ONE WHO WON’T LET MY KIDS EVEN HAVE A SLEEPOVER AT YOUR HOME.
YOU CHOSE TO LIVE SEPARATELY SO DON’T YOU DARE THROW IN MY FACE THAT I AM OFF TO GO AND DO MY OWN THING WITH MY CHILDREN NOW!!!!!! YES I AM BECAUSE YOU NEVER DO OR PARTICIPATE IN ANYTHING WITH US! YOU EXCLUDE YOURSELF![18]
(As per the original)
[18] Exhibit R5 (Item 4).
The reference to “leading separate lives” is the gravamen of the issue. While it may have been the intention of the applicant that they be together, it is clear and apparent that it was not the respondent’s intention and that this did not occur at any time and there was no common intention to share their lives.
It is also apparent from this email that the respondent did not want anything to do with the applicant’s children, and that they were not going to be part of his responsibility or life, yet her children were and are her life and her responsibility. Thus there was no commitment for a shared life together in the relevant sense under the Act and the respondent’s intention was to the contrary.
Despite telling the Court during cross-examination that Mr GG was a wonderful father, that he would never harm his children, and he and the applicant had equal time with their children, the applicant also says in this email:
I lived with a controlling, abusive, rude selfish man for 10 years and it took everything I had to walk away and yes I should have set myself up a little better but I have faith in people and find it hard to believe any Father can do to his kids what [Mr GG] is. He makes me sick and for you to suggest for a second that we are still continuing some type of relationship only confirms for me how sick and twisted you are!
(As per the original)
This evidence is entirely consistent with the respondent’s case and evidence, the Centrelink documents, and the applicant’s documents filed in the 2014 proceedings, and wholly inconsistent with the applicant’s evidence at this hearing, such as the respondent allegedly saying to her:
I think you should sell the [Suburb E] house, we can renovate my [Suburb FF] property and then use both our funds to buy a new place.
(As per the original with clarification)
This is hardly consistent with the applicant’s complaints of the respondent’s behaviour toward her and her other children, and that he does not want to live with her. These two positions cannot stand together.
The applicant deposed in her affidavit:
37.From 2 April 2013 with [Mr Sandison] taking the role of a responsible adult father figure to my children from my previous relationship.
(As per the original after objections)
This is a further inconsistent statement to that in her email of 6 September 2013.
On 20 January 2014, the applicant sent an email to the respondent, saying inter alia:
… Maybe you need to take a step back from all my drama and concentrate on re building your relationships with your other children, focus on work and get back to all the activities you enjoy. You have made it very clear that I have ruined your life and I don’t want to be that person that did that.
… You have made no attempt to see [X] and clearly do not have much concern for his well being. He is a little baby and has constant needs. I was under the impression we were in this together but I don’t feel like you are doing your part. …
I no longer want you to deposit any further funds into that account. I have done a rough estimate of costs for [X] weekly and it is between $300-$400 a week. I think it is only fair you deposit either one of these amounts on a weekly basis so I do not have to do what I had to tonight. It won’t be for long anyway.
…
… I do not feel I have any support from you anymore, just abuse and unsubstantiated accusations. …
…
I love you very much but you have hurt me very deeply and I never know where I stand with you. I can’t do this anymore and do not want to be here anymore.[19]
(As per the original)
[19] Exhibit R5 (Item 5).
On 19 February 2014, the applicant sent an email to the respondent, saying inter alia:
I have always believed that your partner should bring out the best in you but unfortunately you bring out the worst in me.
…
I feel I will have a better change of resolving this mess without you in my life.
Your life has not changed one bit! You continue to golf, tennis, dinners, catch up’s and do as you please with no responsibilities and I am constantly left to handle most things on my own.
We are not a couple, we are not a team and sadly I have lost all trust and faith in you as a friend and most importantly a partner.
…
I truly believe you are quite satisfied with the current situation as you have always wanted it to be just the three of us, you couldn’t care less about my other children. Something you never took into consideration is my children will and always come first (including [X]) you will never come before them ever.
You leave them [the applicant’s children to Mr GG] out of everything and are just plain rude and mean to them and I can’t stand by and watch that anymore.
… I would never want my kids to turn out anything like your spoilt, rude, ungrateful, screwed up children. You and [Ms QQ] [the respondent’s ex-wife] have a lot to answer for and clearly parenting is not one of your strong points.
…
I think it is best we keep our distance. I would appreciate it if you could please keep out of my business moving forward.[20]
(As per the original with clarification)
[20] Exhibit R5 (Item 6).
This email clearly states the nature of the parties’ relationship. The applicant wanted them to be a couple and this was resisted by the respondent at all times and from the get-go.
On 14 March 2014, the applicant sent an email to the respondent, saying inter alia:
We are not a “Team” team mates don’t let their man fall and if they suspect they are, will do anything and everything to catch them ... We have never had that and we never will because it doesn’t work when only one side of the team is willing to do it ... And the other when it suits them.[21]
(As per the original)
[21] Exhibit R5 (Item 8).
On 12 May 2014, the applicant sent an email to the respondent, saying inter alia:
… I would prefer to do it with you, so I don’t have to explain crap and let’s face it we are supposed to be in this together ... But I am doing it on my own. Not angry just a bit sad ... I thought finally we will be together but I will still have to wait! I can’t believe [X] is going to be one and we still don’t live under the same roof …[22]
(As per the original)
[22] Exhibit R5 (Item 9).
On 15 July 2014, the applicant sent an email to the respondent, saying inter alia:
I have some major concerns about us moving forward. And really don’t want to be controlled financially by another Man just because I am raising his Child/Children.
…
We need to talk and it will not be done at MY HOUSE. So I think it is best for you to go to YOUR house (that your son is not even allowed in) talk about putting possessions in front of people …
… We do not live together. You contribute nothing to me or [X] so you don’t get to call the shots either.[23]
(As per the original)
[23] Exhibit R5 (Item 10).
On 2 November 2014, the applicant sent an email to the respondent, saying inter alia:
It is very clear to me now that things between us will never be resolved.
…
I do not want to ever keep your son from you, he is just as much yours as he is mine but I need to protect myself and my relationship with him.
I will not be able be to give you [X] until I have a interim court order. …
…
I think we both know as much as it hurts ... we are finished together.[24]
(As per the original)
[24] Exhibit R5 (Item 11).
On 14 May 2015, the applicant sent an email to the respondent, saying inter alia:
I am sorry this relationship failed, I believe we are both just as responsible for the demise. There are several upsetting issues that keep coming to the surface for me and it is very clear that nothing is going to change.[25]
(As per the original)
[25] Exhibit R5 (Item 14).
All of these emails are consistent with the respondent’s assertion that the parties were never in a de facto relationship and at no time cohabitated in any residence, either at the applicant’s various houses or the respondent’s house at Suburb FF, or had a common intention for a shared life in any sense other than as parents of X. In light of this evidence, the applicant has failed to establish that there was a common intention or a shared life in the period she asserts a de facto relationship was on foot.
The sad reality in this matter is that the applicant is simply not a witness of truth and I do not accept her evidence unless it accords with the respondent’s evidence or is found from independent sources.
The applicant was cross-examined on many of these emails, highlighting that there was no mention in them or in her affidavit of the frequency or duration of the parties’ asserted separations, which evidence only came to light in the applicant’s statement.[26] The applicant’s statement says she and the respondent “had a volatile relationship”, that they “broke up on numerous occasions”, but “only to then reconcile”, with no other details one might expect to be provided at all.[27]
[26] Exhibit A1.
[27] Exhibit A1 at [14].
I find there are no details of these alleged periods of separation and reconciliation because there were no such events, as the parties did not share a common residence or share their lives and lived in all respects separately, sharing only their son X.
The evidence in the applicant’s statement of a volatile relationship and in her emails that the respondent could not care less about her children does not sit well with her assertion that the respondent took on the role of a “responsible adult father figure to [her] children”.[28]
[28] See above [175].
The applicant did not call her mother to give evidence, a person who lived with her at the 2 HH Street, Suburb E property and for a time at the Suburb T property, and who would have been well-placed to support her position that the parties lived together. I draw an adverse inference from this failure and find that her mother’s evidence would not have assisted her.[29] This is particularly so as her mother filed an affidavit earlier in the proceedings, and it was not relied upon and nor was she called to give evidence.
[29] Jones v Dunkel (1959) 101 CLR 298.
A letter from NN School enrolling X at that school was seized upon by the applicant. The letter had her and the respondent’s names on it, with only the respondent’s address listed. I draw nothing from that other than that he was paying the school fees, so he would receive the information.
X’s birth certificate shows the applicant’s address as at 2 HH Street, Suburb E property and the respondent’s address at the Suburb FF property. Again, a public document in which shows the applicant and the respondent were not living together.
The applicant was cross-examined on why the parties had different addresses stated on X’s birth certificate. The applicant said:
THE APPLICANT: We [the applicant and [Mr GG]] were still litigating and we hadn’t come to an agreement yet. He [[Mr GG]] was claiming that we [the applicant and the respondent] were de facto. That we were in a de facto relationship, so [Mr Sandison] said, “Let me just put my address and you put your address”.
And the applicant’s reason why this issue was never raised in her affidavit:
THE APPLICANT: I didn’t realise I had to be so specific.
Yet it was clear that this was an issue that the respondent had raised when he filed his affidavit in 2020, and it was simply not addressed by the applicant. This is a further example of a lie and a recent invention.
The applicant’s credit was such that she could not be accurate as to the date she said the relationship broke down.
The applicant asserted, in cross-examination, the relationship broke down on 26 December 2015. The applicant was taken to an affidavit she swore on 23 August 2017, where she asserted she and the respondent separated on or about 28 November 2015.[30] In her Case Outline, separation was asserted to have occurred on 22 December 2015.
[30] Exhibit R6.
The parties had a mediation on 22 December 2015, which is consistent with the respondent’s evidence of having a mediation one month or so after separation to talk about arrangements for X. This is logical and sensible and I accept what the respondent said occurred.
The applicant’s evidence was that they were going to this mediation in preparation for the relationship breaking down. I reject that evidence entirely. It was, again, the applicant misleading the Court.
THE LAW
The power of this Court to make a declaration, as sought by the applicant, is found in section 90RD of the Act:
90RD Declarations about existence of de facto relationships
(1) If:
(a)an application is made for an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL; and
(b)a claim is made, in support of the application, that a de facto relationship existed between the applicant and another person;
the court may, for the purposes of those proceedings (the primary proceedings), declare that a de facto relationship existed, or never existed, between those 2 persons.
(2)A declaration under subsection (1) of the existence of a de facto relationship may also declare any or all of the following:
(a)the period, or periods, of the de facto relationship for the purposes of paragraph 90SB(a);
(b) whether there is a child of the de facto relationship;
(c)whether one of the parties to the de facto relationship made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c);
(d) when the de facto relationship ended;
(e)where each of the parties to the de facto relationship was ordinarily resident during the de facto relationship.
The Court only has jurisdiction under section 90SM of the Act if there has been a finding that a de facto relationship existed:
90SM Alteration of property interests
(1)In property settlement proceedings after the breakdown of a de facto relationship …
Section 4AA of the Act relevantly provides the definition of a de facto relationship:
4AA De facto relationships
Meaning of de facto relationship
(1) A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b) the persons are not related by family (see subsection (6)); and
(c)having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has effect subject to subsection (5).
Working out if persons have a relationship as a couple
(2) Those circumstances may include any or all of the following:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g)whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h) the care and support of children;
(i) the reputation and public aspects of the relationship.
(3)No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4)A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
The case law below is clear. I am not constrained or confined to the indicia in section 4AA(2)(a)–(i) in determining whether a de facto relationship existed or exists and these factors are guidelines to be considered in “all the circumstances of their relationship”.
Counsel for the applicant referred to the phrase of “coupledom” utilised by Murphy J in Jonah & White,[31] and submitted that this phrase is not what is required to establish a de facto. I agree, but such a point has already been determined by this Court in Herford & Burke (No 2),[32] where the Full Court of the Family Court of Australia (as it was then known) (“the Full Court”) relevantly said:
[31] (2011) 45 Fam LR 460 (Murphy J) (“Jonah & White”).
[32] (2019) FLC 93-919 (Ainslie-Wallace, Ryan and Aldridge JJ).
14However, before considering the challenges to his Honour’s orders, we must observe that his Honour’s reference at [96] to Murphy J’s concept of “‘coupledom’ which involves the merger of two lives” cannot pass uncorrected.
15As was said by the Full Court in Sinclair [(2013) FLC 93-551], the Full Court in Jonah & White (2012) FLC 93-522 (“Jonah & White”) did not adopt Murphy J’s characterisation of the necessary relationship as “coupledom”. The Full Court in Crick & Bennett (2018) FLC 93-832 at [13], somewhat regrettably had to reiterate what had been said in Sinclair. The Full Court in Sinclair said:
92.In both written and oral submissions the appellant submitted that the facts did not demonstrate “the manifestation of coupledom” or that there had been “the merger of two lives”. These phrases emerge from the decision of Murphy J in Jonah v White [2011] Fam LR 460 at 471 where his Honour said: …
…
93. It is important to note that his Honour’s comments were made in the context of the facts of the matter that was before him. It is clear from reading the judgment as a whole that his Honour had the statutory definition firmly in mind at all times. When dismissing the appeal from his Honour’s decision the Full Court did not disagree with his Honour’s statements of principle but did not apply anything other than the statutory test (Jonah & White (2012) FLC 93 – 522) …
16It bears repeating too that in dismissing the appeal from Murphy J’s decision, the Full Court in Jonah & White said at 86,682 that “[i]t is immediately apparent that the touchstone for the determination of whether a de facto relationship exists is the finding that the parties to it are a “couple living together on a genuine domestic basis”.
17 Indeed, as the Full Court said in Sinclair:
94. Comments made in the course of discussing facts are not to be elevated to the status of the provisions of the statute or substituted for the statutory test. This is because, taken on their own, they either add nothing to the statutory test or, if they do, they are adding an impermissible gloss. Thus it is not appropriate to consider the facts other than in the light of the statutory test.
18Sinclair itself has been followed by subsequent Full Courts (Cadman & Hallett (2014) FLC 93-603; Onslow & Onslow [2016] FamCAFC 7; Fleming & Schmidt [2017] FamCAFC 12; Sha & Cham [2017] FamCAFC 161; Cuan & Kostelac (2017) FLC 93-801). To repeat and rely on statements made at first instance which have been overtaken and corrected by several Full Courts, as the primary judge did here, is to invite error.[33]
(Footnotes omitted)
[33] (2019) FLC 93-919 at [14]–[18].
Section 4AA(1)(c) of the Act is clear:
(1) A person is in a de facto relationship with another person if:
…
(c)having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
I find on the evidence that these parties never lived together at any time. I find it was the applicant’s intention, desire and wish that this occur, but that the respondent, at all times, resisted her entreaties, as is clear from the applicant’s emails to him, and they did not have a mutual commitment to a shared life.[34]
[34] Family Law Act 1975 (Cth) s 4AA(2)(f).
Co-habitation
Counsel for the applicant submitted that this finding is not the death knell to a positive finding of the existence of a de facto relationship, and senior counsel for the respondent argued this is a requirement.
The parties had a relationship from December 2011 to November 2015 and that is an agreed fact,[35] although the applicant asserted the relationship did not end until 26 December 2015. Little turns on that discrepancy other than I reject the applicant’s evidence on this issue.
[35] Family Law Act 1975 (Cth) s 4AA(2)(a).
The parties had no common residence.[36] The respondent maintained and lived at his house at Suburb FF, and the applicant had two properties that she lived in and maintained during their relationship. The respondent spent some nights at her various houses at Suburb E and Suburb T to visit X, who was prematurely born and breastfed, and at times, to assist the applicant, who had the care of her other children.
[36] Family Law Act 1975 (Cth) s 4AA(2)(b).
I find the respondent staying overnight on occasions does not evidence him living at her house or for any purpose other than to care for X and does not support a common intention to live together.
The parties had a sexual relationship and that is agreed.[37]
[37] Family Law Act 1975 (Cth) s 4AA(2)(c).
The parties had a common intention to have a child.[38]
[38] Family Law Act 1975 (Cth) s 4AA(2)(h).
There was no financial dependence, interdependence, or financial support between them for each other, other than the respondent’s legal obligation to support X, which he did.[39]
[39] Family Law Act 1975 (Cth) s 4AA(2)(d).
The respondent provided the applicant with a loan when she moved from the 2 HH Street, Suburb E property to the Suburb T property, which was repaid.
The respondent paid for an expert’s report for the applicant in the 2014 proceedings, directly to her lawyers, which was also a loan but not repaid.
The Motor Vehicle 1 the respondent provided to the applicant for a short period was for the benefit of X and remains his car and the applicant’s evidence that it was a car bought by him for her is a lie.[40]
[40] Family Law Act 1975 (Cth) s 4AA(2)(e).
It is clear that the parties cared for and supported X and each had a commitment to him.
The reputation and public aspects of the relationship is scant and minimal.[41] The parties did, as couples who are dating, attend family functions such as weddings, birthday parties, funerals, and Christmas celebrations. It was rare that they attended outings as a family, for example, at a beach or went on holidays as a family.
[41] Family Law Act 1975 (Cth) s 4AA(2)(i).
There were seven shared events, at most, during this four-year relationship and that does not amount to a public display of a relationship. There was very little evidence to support any public aspects of their life.
The respondent bought the applicant two rings as gifts.
The applicant’s family were not called to support the applicant’s case.
Contrast this with the respondent’s evidence, particularly Ms CC’s clear affidavit evidence in support of her brother-in-law. The respondent was clear to his sister-in-law on each family occasion that he and the applicant were not living together and not in a de facto relationship.
The applicant agreed that the respondent was very concerned about telling his children of the imminent birth of X. In particular, he was concerned about their reaction and that he did not want her children to stay at his house. This was an agreed fact between them. This evidence is inconsistent with a common shared residence and living together.
The applicant’s children did not spend any time at the Suburb FF property; a complaint the applicant made in her various emails to the respondent. The respondent did not care for the applicant’s children nor support them in any way at any time, and any support he gave to the applicant was to care for X and enable the applicant to attend to the needs of her other three children, such as attending Y’s first day of school.
The birth of a child is but a factor to be considered in determining whether a de facto relationship ever existed, but is not determinative of this and submissions made by counsel for the applicant that the parties having agreed to have a child is a sufficient public declaration that the parties were in a committed de facto relationship is not the law and is insufficient. The birth of a child is determinative where a de facto relationship has not been in existence for more than two years.[42] In those circumstances, the existence of a child overcomes the two-year threshold test.[43]
[42] See Family Law Act 1975 (Cth) s 90SB(b).
[43] See Family Law Act 1975 (Cth) s 90SB(a).
The High Court of Australia’s decision of Fairbairn v Radecki,[44] to which I was referred, does not assist me greatly in terms of a finding as to the existence of a de facto relationship, given in that matter the issue was whether the de facto relationship had broken down.
[44] (2022) 64 Fam LR 604 (Kiefel CJ, Gageler, Keane, Edelman, Steward, and Gleeson JJ) (“Fairbairn v Radecki”).
Their Honours in Fairbairn v Radecki said:
The need for cohabitation
32The appellant’s primary argument that the parties’ de facto relationship had broken down when the appellant was placed into an aged care facility such that the parties were no longer physically living together must be rejected. It is contrary to the text of s 4AA and to statutory context and purpose to which reference has been made. It is also contrary to real-world considerations. It would be productive of injustice if two people who live apart (including for reasons of health) were incapable of remaining in a de facto relationship.[45]
[45] Fairbairn v Radecki (2022) 64 Fam LR 604 at [32].
The appellant’s guardian, being the NSW Trustee and Guardian, in Fairbairn v Radecki, argued that because the appellant was placed into an aged-care facility and the parties were no longer physically living together, their de facto relationship had broken down. This was clearly a spurious argument to make when one has regard to section 4AA of the Act.
Their Honours in Fairbairn v Radecki also say:
33Living together for the purposes of s 4AA(1) will often, perhaps usually, mean cohabitation of some residence by a couple for some period of time. But cohabitation of a residence or residences is not a necessary feature of “living together”. That phrase must be construed to take account of the many various ways in which two people may share their lives together in the modern world. Two people, for any number of reasons, may not reside in the same residence, but nonetheless be in a de facto relationship in the sense required by s 4AA.
…
35Two decisions support the proposition that physical cohabitation at a single home or homes is not a necessary feature of an ongoing relationship whether by way of marriage or otherwise; it is not an irreducible minimum that all relationships must exhibit.[46]
(Footnotes omitted)
[46] Fairbairn v Radecki (2022) 64 Fam LR 604 at [33], [35].
The question for me in this matter is not whether the de facto relationship was ongoing, as it was before their Honours in Fairbairn v Radecki, but whether there ever was a de facto relationship in circumstances where I have made a finding that the parties did not ever live together in any residence.
What their Honours did say in Fairbairn v Radecki, that is of relevance, is as follows:
39The language of s 4AA of the Act and its reference to “living together” requires no different approach to determining whether a relationship exists of the kind defined. “Living together”, consistently with authority, should be construed as meaning sharing life as a couple. Section 4AA does not prescribe any way by which a couple may share life together. Its language is sufficiently broad to accommodate the great variety of ways a de facto relationship may exist. That conclusion is supported by the varied factors listed in s 4AA(2). In a given case, some of the factors listed in s 4AA(2) may be relevant and some may be irrelevant; inevitably some may have greater prominence than others. A conclusion that a de facto relationship has ended may also arise because of factors not listed in s 4AA(2). Such a conclusion is mandated by s 4AA(3) and (4). In particular, s 4AA(4) is a statutory recognition that what may constitute a genuine de facto relationship is not be determined in the same way in every case by reference to rigid criteria that must always be satisfied. In that respect, the language of s 4AA(2)(b) does not assume that every de facto relationship must have a “common residence” to some “extent” and of some “nature”. Such a construction is entirely denied by s 4AA(3).[47]
(Footnotes omitted, bold emphasis added)
[47] Fairbairn v Radecki (2022) 64 Fam LR 604 at [39].
Their Honours in Fairbairn v Radecki referred to Yesilhat v Calokerinos,[48] a decision of the New South Wales Court of Appeal, saying:
40The decision in [Yesilhat v Calokerinos] … requires no contrary conclusion. The reasoning in that case was directed to the proposition that a de facto relationship cannot exist if two people have never lived together. That is not this case. The correctness of the proposition need not be determined.[49]
(Footnotes omitted)
This is the position before me and one which I am to consider.
[48] [2021] NSWCA 110 (Bathurst CJ, Macfarlan and Brereton JJA) (“Yesilhat v Calokerinos”).
[49] Fairbairn v Radecki (2022) 64 Fam LR 604 at [40].
In Yesilhat v Calokerinos, after exploring various authorities that discuss the requirement of “living together”, Brereton JA summarised these authorities and concluded:
152None of the cases to which I have referred holds that parties lived together, or were members of a common household, in circumstances where there was no element of common residence. Given the plain meaning of the words “living together”, that is hardly surprising. Overwhelmingly, the cases support the view that there must be some element of common residence, though it need not be full-time. Visiting, even frequently and repeatedly, not for the purpose of residing, is insufficient.[50]
(Bold emphasis added)
[50] Yesilhat v Calokerinos [2021] NSWCA 110 at [152] (Brereton JA with Bathurst CJ agreeing).
One of the decisions referred to by Brereton JA in Yesilhat v Calokerinos is a further decision of the New South Wales Court of Appeal of Smoje v Forrester,[51] where Meagher JA said:
42Whilst the state of living “together” does not require that the living occur at and from a single place, or that the two adults spend all of their time together at the same place, it will ordinarily include elements of interaction and sharing whilst engaging in activities associated with occupying the same place. Repeated visits for a singular purpose, without more, do not satisfy that description.[52]
[51] [2017] NSWCA 308 (Basten, Macfarlan, and Meagher JJA).
[52] [2017] NSWCA 308 at [42] (Meagher JA with Basten and Macfarlan JJA agreeing).
The respondent’s evidence was clear. He visited the applicant at her house to spend time with X, particularly when he was young, or to collect X. There is no doubt the parties may have had sex on those occasions.
The applicant’s oral evidence, that when she moved to the Suburb T property, the respondent spent every single night there with her, is inconsistent with the applicant’s statement:
14.… [Mr Sandison] and I had a volatile relationship … I broke up with him on numerous occasions during the course of our relationship only to then reconcile.
(As per the original)
In Yesilhat v Calokerinos, Brereton JA referred to an earlier judgment of White J, albeit in the same proceedings,[53] who said that:
149… persons may be in a de facto relationship even though they do not live together all the time, [and White J] said that it was arguable that a couple may live together even though they do so only for limited periods in a place which is not their common residence. … it was an open question as to whether a shared residence or a shared household was necessary to establish a de facto relationship …[54]
And then, Brereton JA quotes White J:
“[35] ... Section 21C(2)(a) requires that for a person to be in a de facto relationship with another person they must have a relationship as a couple “living together” … all the circumstances of the relationship are to be taken into account, including “the nature and extent of their common residence” …
[36] ... It is a requirement of s 23C(2) [sic] that the parties to a de facto relationship have a relationship “as a couple living together” and hence it is necessary that they “live together”. It is arguable that a couple may live together even though they do so only for limited periods in a place which is not their common residence.”[55]
The factors listed in section 21C(2)–(3) of the Interpretation Act 1987 (NSW) are similar to those contained in section 4AA of the Act, however the requirements to find a de facto relationship exists are separated differently in NSW legislation to section 4AA of the Act.[56]
[53] Yesilhat v Calokerinos [2015] NSWSC 1028 (White J).
[54] Yesilhat v Calokerinos [2021] NSWCA 110 at [149].
[55] Yesilhat v Calokerinos [2015] NSWSC 1028 at [35]–[36], quoted in Yesilhat v Calokerinos [2021] NSWCA 110 at [149].
[56] See Property (Relationships) Act 1987 (NSW) s 4.
Based on these decisions, for there to be a de facto relationship under section 4 of the Property (Relationships) Act 1987 (NSW), it may be the law that parties must live together, even for a limited period.
This is not so for a court exercising jurisdiction under the Act, as was considered by the Full Court in Ricci & Jones:[57]
59It is in our view clear from a reading of the section, and a consideration of the authorities both in this court and in others, that cohabitation can be relevant but is by no means determinative.
60In Jonah & White [2011] FamCA 221, a single judge decision of Murphy J, the factual background included the parties having a relationship for seventeen years, living together on occasions, accompanied by significant financial support from the male respondent. In that case, the respondent was also married and lived with his wife throughout his association with the applicant. His Honour was not persuaded that the relationship between the parties was a de facto relationship as defined in the Act.
61We agree with Murphy J at paragraph 39 that the making of a declaration that a de facto relationship existed does not involve the exercise of discretion but rather a consideration of the facts which may found the jurisdiction.
62 Further, at paragraph 53, Murphy J said:
It is, however, important to bear in mind that the emphasis on common residence (whether for varying periods of time or not) is but one of the specific factors enumerated within s 4AA of the Act. The section specifically provides that no particular finding in respect of that matter (or indeed any other specified circumstance) is “to be regarded as necessary in deciding whether the persons have a de facto relationship”.
[57] Ricci & Jones [2011] FamCAFC 222 at [59]–[62] (May, Ainslie-Wallace and Johnston JJ), citing Jonah & White (2011) 45 Fam LR 460 at [39], [53].
Section 4AA of the Act is sub-headed:
Meaning of de facto relationship
(As per the original)
And subsection (1)(c) reads:
(c)having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
(Bold emphasis added)
Subsection (2) is headed:
Working out if persons have a relationship as a couple
And this heading is followed by:
(2) Those circumstances may include any or all of the following:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(Bold emphasis added)
In Sinclair & Whittaker,[58] the Full Court said the following with respect to section 4AA and its subsections:
[58] (2013) FLC 93-551 (Bryant CJ, Thackray and Aldridge JJ).
51In 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).
52Sub-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.
54Thus, 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.[59]
[59] (2013) FLC 93-551 at [51]–[54].
In Jonah & White,[60] the Full Court said:
32It is immediately apparent that the touchstone for the determination of whether a de facto relationship exists is the finding that the parties to it are a “couple living together on a genuine domestic basis”.[61]
[60] Jonah & White (2012) FLC 93-522 (May, Strickland and Ainslie-Wallace JJ).
[61] Jonah & White (2012) FLC 93-522 at [32].
This dicta is rather more similar to the decisions in the Supreme Court of New South Wales referred to above, where White J in the earlier decision of Yesilhat v Calokerinos,[62] and Brereton JA in the Court of Appeal decision of Yesilhat v Calokerinos,[63] found that the usual meaning of the word “‘living together’ required that the parties had lived together at some time”;[64] a position Mushin J took in this Court in Moby & Schulter.[65] I note the Full Court in Jonah & White[66] opined that “minds might reasonably differ” from the interpretation of Mushin J in Moby & Schulter.
[62] [2015] NSWSC 1028.
[63] [2021] NSWCA 110.
[64] [2021] NSWCA 110 at [143].
[65] (2010) FLC 93-447 (Mushin J) (“Moby & Schulter”).
[66] Jonah & White (2012) FLC 93-522 at [56]–[57].
Common residence and living together are two different concepts. Parties may have a common residence but never physically live together in their common residence due to work commitments, age or ill-health or for any other satisfactory reason. As is made clear in the Act and the case law, a Judge is not constrained or confined to the indicia in section 4AA(2)(a)–(i) in determining whether a de facto relationship existed or exists and these factors are guidelines to be considered in “all the circumstances of their relationship” and relationships may take many forms as between couples.
I find it would be an error of law to elevate the finding of whether parties lived together or not to the status of being determinative of whether a de facto relationship existed or not. Such a course is contrary to the Act and the case law above and offends the clear legislative intent that a Judge is to have regard to “all the circumstances of their relationship”.
The only credible evidence presented in this case is that of the respondent, which is consistent with the applicant’s evidence in the 2014 proceedings, the Centrelink documents that the applicant completed, and the applicant’s emails to the respondent from May 2013 to May 2015.
I find that the respondent’s evidence is to be preferred on this and every other issue, and that visits between the parties did not occur “frequently and repeatedly”, other than when X was a small baby and needed constant care. As Brereton JA has identified in Yesilhat v Calokerinos, on those facts, it is insufficient to find that the parties lived or had a common residence together.
Having found that the parties did not ever live together nor did they share a common residence, and for the reasons and facts as found as follows and having regard to all the circumstances of their relationship, they were never in a de facto relationship.
Rather, they had a relationship which was, to use the words of Meagher J in Smoje v Forrester,[67] quoted with approval by Brereton JA in Yesilhat v Calokerino:
Repeated visits for a singular purpose, without more, do not satisfy that description.[68]
[67] [2017] NSWCA 308 (Basten, Macfarlan, and Meagher JJA).
[68] [2017] NSWCA 308 at [42] (Meagher JA with Basten and Macfarlan JJA agreeing).
There was no evidence of a common intention and/or a mutual commitment to a shared life by the parties. Any intention of a shared life was one-sided, and from the applicant alone, as she poignantly described in her emails to the respondent and as is clear from the respondent’s evidence.
Only three of the indicia prescribed in section 4AA(2) of the Act exist in this matter, namely having a child together, having attended family functions on a limited occasion (i.e. the reputation and public aspect of the relationship), and a sexual relationship. The evidence of these three indicia alone, without a finding of a common intention for a shared life or a mutual commitment, are insufficient to support a finding that there was a de facto relationship.
I find that the focus of the respondent and his commitment was to X and his relationship with X, and this is why he assisted the applicant at times when she needed financial help and why he attended her house, perhaps regularly at times, to spend time with X. It is clear and apparent the 2014 proceedings were extremely traumatic for the applicant, as she says so in her own emails and that Mr GG behaved very poorly. It was a tumultuous time for the applicant and her children, and X was involved in this, and the respondent was concerned for his son, hence his assistance to her to assist X.
The parties did not share finances or support each other nor did they acquire any joint property.
These findings of fact coupled together with the applicant’s evidence in the 2014 proceedings and to Centrelink that she had no partner, that she and the respondent were not in a de facto relationship, with my finding that she was not a witness of truth in these proceedings, is overwhelming evidence to support making a declaration that the parties were never in a de facto relationship.
Credit findings in this matter, despite submissions from counsel for the applicant that they would not impact on my decision, are crucial. My decision is based upon which story I accept; the respondent’s consistent story or the applicant’s inconsistent story. As the Full Court said in Ricci & Jones:
61We agree with Murphy J [in Jonah & White [2011] FamCA 221] at paragraph 39 that the making of a declaration that a de facto relationship existed does not involve the exercise of discretion but rather a consideration of the facts which may found the jurisdiction.[69]
(Bold emphasis added)
[69] Ricci & Jones [2011] FamCAFC 222 at [61], citing Jonah & White (2011) 45 Fam LR 460 at [39].
The respondent’s story is the only credible story, and for all these reasons I dismiss her application, and make a declaration that the parties were never in a de facto relationship.
CONCLUSION OF THE THRESHOLD ISSUE
As previously stated, the applicant has failed to establish that she and the respondent were in a de facto relationship at any time.
Given that the applicant was unsuccessful, I will make procedural orders for the filing of written submissions in relation to costs.
I discuss below my concerns regarding the competency of the applicant’s legal representatives, and I will make an order that the submissions of both the respondent and the applicant address the issue of whether the applicant’s legal representatives should be liable, whether solely or jointly, for any costs made in favour of the respondent, if such an order was made. I note the written submissions should comply with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), in particular, Chapter 12.
OTHER ISSUES
Despite my findings that there was clear evidence that demonstrated that these parties were never in a de facto relationship, the applicant pursued her application. The applicant has known for some time, particularly since early 2020, that the respondent has opposed her assertion that they were a de facto relationship and had identified significant contradictions in the applicant’s case, which were pointed out to her legal representatives at the commencement of the hearing and not addressed.
It is even more concerning that these contradictions are consistent with the applicant’s evidence filed in this Court in the 2014 proceedings and representations to Centrelink, which contradict what she asserted in her evidence before this Court in these proceedings.
Further, the Case Outline prepared on the applicant’s behalf did not even address these fundamental flaws in her case and was silent on how I was to deal with these contradictions. I am concerned that the applicant’s case proceeded to a final hearing despite clear evidence from the applicant herself that a de facto relationship never existed between the parties and where it should have been apparent to competent legal representatives that the credit of the parties would be crucial to my findings of fact.
The Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) states the following:
4 Other fundamental ethical duties
4.1 A solicitor must also—
…
4.1.3deliver legal services competently, diligently and as promptly as reasonably possible,[70]
(Underline emphasis added)
[70] Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) r 4.1.3.
The Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) contains a similar rule:
4 Principles
These Rules are made in the belief that:
…
(c)barristers as specialist advocates in the administration of justice, must act honestly, fairly, skilfully, bravely and with competence and diligence,[71]
(Underline emphasis added)
[71] Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) r 4(c).
The competency of legal representatives who practice in any jurisdiction is a critical element in the proper administration of justice.
Further, the applicant’s conduct, aided by her legal representatives, appears to be contrary to the core principles underlining the Federal Circuit and Family Court of Australia Act 2021 (Cth), including the ‘Family Law Case Management – Central Practice Direction’, which came into effect on 1 September 2021, and as of 28 November 2022, are relevantly as follows:
1. PURPOSES
1.1The purposes of this Central Practice Direction are to outline the core principles applicable to family law proceedings and to establish a consistent national case management system in the Federal Circuit and Family Court of Australia (the Court) that:
(a)reduces unnecessary cost and delay in family litigation and facilitates proceedings being conducted with the least possible acrimony in order to minimise harm to children and families;
(b) ensures the safety of families and children; and
(c)achieves the overarching purpose of the family law practice and procedure provisions of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act), being to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.
1.2All other Family Law Practice Directions are to be read within the framework established by this Central Practice Direction. Parties should not commence or take steps in proceedings without first considering the principles set out in this Practice Direction.
1.3The Court takes the overarching purpose enshrined in the FCFCOA Act seriously. Parties and their lawyers are expected to fully comply with that statutory obligation in all cases without exception, regardless of the complexity of the case or the issues in dispute, subject only to ensuring the safety of parties and children. This co-operation requires (and the Court expects) that the parties and their lawyers think about the best way to conduct their cases in accordance with the overarching purpose. The parties and their lawyers can expect that the Court will engage with them in a dialogue to achieve the overarching purpose.
1.4The Court expects parties and their lawyers to have in mind, at all times, the cost of each step in the proceedings and whether it is necessary, and to avoid unnecessary process-driven costs and unjustified use of court resources. In everything they do, parties and lawyers are expected to approach proceedings in a manner directed towards identifying the issues in dispute and ascertaining the most efficient, including cost efficient, method of resolution or determination. This includes giving proper consideration to identifying the issues in dispute, complying with their obligation to provide full and frank disclosure in a timely manner (see Part 6.1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (the Family Law Rules)), engaging in productive and resolution-focused communication with other parties, making appropriate admissions and pressing only issues of genuine significance. Ambit claims should be avoided and aggressive and unnecessarily adversarial conduct will not be tolerated. At all stages in the proceedings, parties must avoid filing evidence that is unnecessarily lengthy or only of limited relevance to the issues genuinely in dispute. Parties should limit the number of witnesses they rely on to those necessary to prove or disprove those issues truly requiring determination.
1.5Any failure to comply with these requirements may attract costs orders against parties and/or practitioners and other consequences including, in appropriate cases, the drawing of adverse inferences, the making of a summary decree pursuant to section 45A of the Family Law Act 1975 (Cth) (Family Law Act), or orders providing that a matter be heard on an undefended basis.
(As per the original)
The overarching purpose of proceedings in the Federal Circuit and Family Court of Australia (Division 1) are as follows:
67 Overarching purpose of family law practice and procedure provisions
(1)The overarching purpose of the family law practice and procedure provisions is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
(2)Without limiting subsection (1), the overarching purpose includes the following objectives:
(a)the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 1);
(b)the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c) the efficient disposal of the Court’s overall caseload;
(d) the disposal of all proceedings in a timely manner;
(e)the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
(3)The family law practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
(4)The family law practice and procedure provisions are the following, so far as they apply in relation to civil proceedings:
(a) the Rules of Court;
(b)any other provision made by or under this Act, or any other Act, with respect to the practice and procedure of the Federal Circuit and Family Court of Australia (Division 1).
68 Parties to act consistently with the overarching purpose
(1)The parties to a civil proceeding before the Federal Circuit and Family Court of Australia (Division 1) must conduct the proceeding (including negotiations for settlement of the dispute to which the proceeding relates) in a way that is consistent with the overarching purpose.
(2)A party’s lawyer must, in the conduct of a civil proceeding before the Federal Circuit and Family Court of Australia (Division 1) (including negotiations for settlement) on the party’s behalf:
(a) take account of the duty imposed on the party by subsection (1); and
(b) assist the party to comply with the duty.
(3)The Federal Circuit and Family Court of Australia (Division 1) or a Judge may, for the purpose of enabling a party to comply with the duty imposed by subsection (1), require the party’s lawyer to give the party an estimate of:
(a) the likely duration of the proceeding or part of the proceeding; and
(b)the likely amount of costs that the party will have to pay in connection with the proceeding or part of the proceeding, including:
(i) the costs that the lawyer will charge to the party; and
(ii)any other costs that the party will have to pay in the event that the party is unsuccessful in the proceeding or part of the proceeding.
(4)In exercising the discretion to award costs in a civil proceeding, the Federal Circuit and Family Court of Australia (Division 1) or a Judge must take account of any failure to comply with the duty imposed by subsection (1) or (2).
(5)Without limiting the exercise of that discretion, the Federal Circuit and Family Court of Australia (Division 1) or a Judge may order a party’s lawyer to bear costs personally.
(6)If the Federal Circuit and Family Court of Australia (Division 1) or a Judge orders a lawyer to bear costs personally because of a failure to comply with the duty imposed by subsection (2), the lawyer must not recover the costs from the lawyer’s client.[72]
[72] Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 67–68.
CONCLUSION
I make the declaration and orders as set out in the forefront of these Reasons for Judgment.
I certify that the preceding two hundred and sixty-seven (267) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Henderson. Associate:
Dated: 14 April 2023
13
0