Sanil and Lennon
[2019] FamCA 556
•16 August 2019
FAMILY COURT OF AUSTRALIA
| SANIL & LENNON | [2019] FamCA 556 |
| FAMILY LAW – De facto relationship – threshold issue – whether a de facto relationship existed – where the Applicant seeks a declaration that he and the Respondent were not in a de facto relationship – where the Respondent seeks a declaration that she and the Applicant were in a de facto relationship – where, if a de facto relationship existed, the Court is requested to determine the period of that relationship – consideration of the nature of that relationship – findings as to credit of the witnesses – held that a de facto relationship did exist in the period from 13 October 2010 until 15 August 2012. |
| Family Law Act 1975 (Cth) s 90RD, 4AA, pt VIIAB. Evidence Act 1995 (Cth) s 140. Migration Act 1958 (Cth) s 102, 234. |
| Dahl & Hamblin (2011) 46 Fam LR 229 Elias & Elias (1977) FLC 90.267 Gissing & Sheffield [2012] FMCAfam 1111 Hayes v Marquis [2008] NSWCA 10 Jordan & Jordan (1997) FLC 92-736 Kuhl v Zurich Financial Services Australia Ltd (2011) 276 ALR 375 McGlen-McLeod v Galloway [2012] NSWCA 368 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 Ricci v Jones [2011] FamCAFC 222 Rooks & Padley [2014] FamCA 444 Rushdie & Moshin [2017] FamCA 859 Sinclair & Whittaker [2013] FamCAFC 129 Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB) Whalan v Kogarah Municipal Council [2007] NSWCA 5 |
| APPLICANT: | Mr Sanil |
| RESPONDENT: | Ms Lennon |
| FILE NUMBER: | DNC | 378 | of | 2014 |
| DATE DELIVERED: | 16 August 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland DCJ |
| HEARING DATE: | 31 October 2018, 1 November 2018, 7 & 12 March 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Millar |
| SOLICITOR FOR THE APPLICANT: | Pigdon Norgate Family Lawyers |
| SOLICITOR FOR THE RESPONDENT: | Self-represented |
Orders
It is declared that the parties were in a de facto relationship in the period from 13 October 2010 until 15 August 2012.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sanil & Lennon has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: DNC 378 of 2014
| Mr Sanil |
Applicant
And
| Ms Lennon |
Respondent
REASONS FOR JUDGMENT
Introduction
This decision concerns an Application in a Case filed by Mr Sanil on 7 September 2017, seeking a declaration that he and Ms Lennon were never in a de facto relationship. In the alternative, in the event that the Court finds that the parties were in a de facto relationship, Mr Sanil seeks a declaration as to the period of such a relationship. Ms Lennon seeks a declaration that the parties were in a de facto relationship for the period from January 2006 until 12 April 2013.
Mr Sanil is the Respondent in the substantive proceedings between himself and Ms Lennon. In those proceedings Ms Lennon seeks orders for the distribution of property pursuant to Part VIIIAB of the Family Law Act 1975 (‘the Act’).
Background to dispute
Mr Sanil was born in 1953 and is currently aged 66 years. He was previously married and has four adult children from that marriage. The marriage ended in 2000.
Ms Lennon was born in 1969 and is currently aged 49 years. She has an adult son from a previous relationship.
There are no children born of the parties’ asserted relationship, although, as noted, they both have adult children from previous relationships. Unfortunately Mr Sanil’s eldest son committed suicide in the late 1990s. He contends that this tragedy has made him sympathetic to assisting Ms Lennon at various times of personal struggle. I have determined this matter without considering whether that tragic event has influenced the actions of Mr Sanil.
In October 2005, Mr Sanil entered into a contract to purchase a property located at C Street, Suburb B (‘the C Street property’).
In or around November 2005, Mr Sanil entered into a contract to purchase a property located at D Street, Suburb B (‘the D Street property’).
On 17 December 2005, the parties met. Mr Sanil contends that, at that time, Ms Lennon was not in paid employment and was living at a women’s boarding house. This is not disputed by Ms Lennon.
Mr Sanil contends that the nature of the parties’ relationship was one of friendship and lasted until approximately August 2013. Ms Lennon contends that the parties were in a de facto relationship from January 2006 until 12 April 2013 at which time, she contends, Mr Sanil terminated the relationship during a telephone conversation.
Ms Lennon contends that a difficult relationship between herself and Mr Sanil’s daughters and Mr Sanil’s sister impacted upon her decision as to where she resided. In particular, Ms Lennon contends that while she has lived at a number of different locations that were other than where Mr Sanil lived, that was because of her poor relationships with Mr Sanil’s family members.
On 19 December 2005, the D Street property settled and Mr Sanil moved into that property. Ms Lennon contends that she also lived at that property with Mr Sanil for “a couple of weeks” in January 2006. This is denied by Mr Sanil although, he acknowledges that, in January 2006, Ms Lennon attended the D Street Property for dinner on at least one occasion.
On 27 January 2006, the C Street property settled and both of the parties commenced to live at that property. Mr Sanil’s daughters Ms X and Ms Y also moved into the C Street property and lived between that property and the D Street property from that time until approximately late 2007 or early 2008. It was not disputed that Ms Lennon had a poor relationship with both Ms X and Ms Y.
Ms Lennon claims that the C Street property was the joint primary residence of herself and Mr Sanil between January 2006 and July 2010. This is contested by Mr Sanil.
Mr Sanil claims that, in February 2006, Ms Lennon moved out of the C Street property following a dispute with Mr Sanil’s daughters. Ms Lennon acknowledges that she moved out of the property in or around March 2006, at the request of Mr Sanil. Ms Lennon claims that she and Mr Sanil maintained a committed relationship, despite not living together at that time.
Upon moving out of the C Street property, Ms Lennon briefly stayed with her brother, Mr H Lennon (‘Mr H’), before traveling overseas on 20 March 2006. Ms Lennon claims that Mr Sanil stayed with her at Mr H’s property, however, that is disputed by Mr Sanil.
Ms Lennon returned to Australia on 25 May 2006. Upon her return, Mr Sanil claims that Ms Lennon lived with Mr H and at the women’s boarding house or with a male friend at Town E. Ms Lennon contends that she stayed at the C Street property.
Mr Sanil states that, in August or September 2006, he had dinner with a female co-worker, Ms NN, on a few occasions. Mr Sanil claims that Ms Lennon confronted Ms NN about socialising with Mr Sanil, which frightened Ms NN. After Ms Lennon’s alleged confrontation of Ms NN, Mr Sanil claims that he and Ms NN discontinued their social engagements. In reaching my decision in this matter it has been unnecessary to determine the nature of any interactions between Ms Lennon and Ms NN.
Between 16 May and 12 July 2007, Ms Lennon travelled overseas.
While Ms Lennon was overseas Mr Sanil arranged a rental property for her to stay in upon her return. That property was located at F Street, Suburb G (‘the F Street property’). It is agreed that the lease was signed on that property on 16 July 2007 and that, shortly thereafter, Ms Lennon moved into that property. Ms Lennon acknowledges that the property was leased but contends that she and Mr Sanil lived between that property and the C Street property in the period of 16 July 2007 until approximately October 2008. She contends, that in October 2008, she moved into the C Street property pending settlement of a property that she purchased in October or November or December 2008 located at J Street, Suburb A (‘the J Street property’) and, subsequently, obtaining vacant possession of that property in February 2009.
In 2007, Mr Sanil’s company, K Pty Ltd, purchased the property located at L Street, Suburb M (‘the L Street property’). That purchase settled on 27 August 2007.
From October 2007 to September 2009, Ms Lennon was employed as a lawyer in Suburb N.
Mr Sanil asserts that, on 16 November 2007, contracts were exchanged on the purchase of the property at O Street, Suburb P (‘the O Street property’) by his self-managed superannuation fund, the Mr Sanil Superannuation Fund. That property was office space rather than residential premises.
In October or November or December 2008, Ms Lennon purchased the J Street property to which I have referred above. The property was acquired subject to a tenancy and that the tenancy lasted until 6 February 2009 at which time Ms Lennon moved into the property.
While agreeing that she moved into the J Street property in February 2009, Ms Lennon asserts that she and Mr Sanil lived between that property and the C Street property. Mr Sanil disputes that and asserts that he lived with his sister, Ms Q at the C Street property from early-2009 to May 2010. In an Affidavit filed on 8 September 2017 in these proceedings Ms Q stated that she lived with Mr Sanil at the C Street property in the period from December 2008 to June 2010. Ms Q’ recollection of having lived at the C Street property one (1) month earlier and one (1) month later than Mr Sanil recalled is not material to this decision.
In August 2007, Ms Lennon asserts that she met Mr R, who resides in England. She acknowledges that they had a brief sexual relationship in or around 2008 and maintains that she and Mr R have since been longstanding friends. Comparatively, Mr Sanil asserts that, in 2010, Ms Lennon told him that Mr R had said to her that “if he wasn’t with his wife he would be with [her]”.
In May 2010, the property located at 1 S Street, Suburb T (‘the 1 S Street property’) was purchased by the Mr Sanil Superannuation Fund. Ms Lennon asserts that she and Mr Sanil purchased that property together, in the name of the Mr Sanil Superannuation Fund and that she completed the conveyance herself. Mr Sanil denies that Ms Lennon was involved in the purchase of that property, apart from providing conveyancing services, for which, he paid Ms Lennon.
In May or June 2010, Mr Sanil signed a rental agreement for the property located at 2 S Street, Suburb T (‘the 2 S Street property’) and commenced to reside there. At that time, he leased the C Street property to the owner of the 2 S Street property. Both of those lease agreements contained an option to purchase. Mr Sanil subsequently purchased 2 S Street.
Between 2 June and 5 July 2010, Ms Lennon travelled overseas.
Mr Sanil asserts that, in or around July 2010, he commenced a relationship with Ms U. Ms Lennon acknowledges that Mr Sanil had an affair with Ms U but asserts that the parties continued to be in a relationship at that time. Mr Sanil attests that, upon Ms Lennon discovering his relationship with Ms U, she began to harass both of them. Ms Lennon disputes that she did so. Ms U has given evidence in these proceedings corroborating the fact that she was in a sexual relationship with Mr Sanil for a period of several months from the middle of 2010. She corroborates Mr Sanil’s evidence regarding Ms Lennon’s response to ascertaining the fact that Mr Sanil and Ms U were in a relationship. It is not, however, for the purpose of this decision necessary to make any findings in respect to the appropriateness or otherwise of Ms Lennon’s conduct in that respect.
In August 2010, a fatal accident involving a contract worker occurred at the C Street property. Ms Lennon claims that she completed work in relation to whether she or Mr Sanil were liable for that incident.
On 30 July 2010, Ms Lennon asserts that she ceased her employment with Company QQ. Comparatively, Mr Sanil asserts that in June 2011, Ms Lennon was dismissed from her role at Company QQ. That difference of characterisation of termination of Ms Lennon’s employment is not material to this decision.
In August or September 2010, Mr Sanil claims that Ms Lennon came to his workplace and threatened to commit suicide, in the presence of himself and another employee. Ms Lennon disputes that such an incident occurred. I have found it unnecessary to make any findings in respect to that incident other than to note that Ms Lennon visited Mr Sanil’s workplace on a number of occasions.
Between November 2010 and August 2012, Mr Sanil asserts that he and Ms Lennon lived together at the 2 S Street property and that Ms Lennon paid him rent during that period. Comparatively, Ms Lennon says that she and Mr Sanil lived together at that property between July 2010 and late-August 2012 and that between September 2012 and 12 April 2013, they lived between that property and a property in City W.
Ms Lennon asserts that, in January 2011, Mr Sanil purchased airline tickets for the both of them to travel to the United States. Mr Sanil claims that they shared that cost equally but acknowledges that he may have assisted in providing frequent flyer points to Ms Lennon.
On 16 May 2011, Ms Lennon asserts that Mr Sanil paid for her car to be repaired.
Between 23 May and 19 June 2011, the parties travelled to the United States together.
In July 2011, the parties attended Mr Sanil’s mother’s 80th birthday party together.
In or around August 2011, Mr Sanil asserts that he purchased the 2 S Street property. Comparatively, Ms Lennon says that the purchase occurred on 30 November 2011, and refers to the purchase in a collective manner, claiming that she and Mr Sanil purchased the property together. She further asserts that she and Mr Sanil had a dispute with the vendor of that property, regarding the purchase option contained in the lease agreement and that she provided legal services to resolve that dispute and completed the conveyancing for the transaction. Mr Sanil does not dispute that Ms Lennon provided those legal services but contends that she was paid for her services.
Between 22 August and 27 September 2011, Ms Lennon travelled to South America. Mr Sanil asserts that, upon her return, he told Ms Lennon that she could no longer live with him at the 2 S Street property, unless she received treatment for, what he considered to be, her mental illness. He asserts that Ms Lennon did not agree that she had any mental health issues and that they agreed that she would remain living at that residence only until she next travelled overseas.
On 10 January 2012, the parties signed an agreement drafted by Mr Sanil, stating that neither party would pursue claims against the other for money or assets. Ms Lennon claims that she signed that document under duress, after Mr Sanil threatened to evict her from the 2 S Street property. That note read:
Ms Lennon and Mr Sanil Relationship Agreement
10 January 2012
Ms Lennon and Mr Sanil both agree that they will not seek or make any monetary or assets compensation claim against each other, regarding their relationship over the last six years.
Ms Lennon contends that considerable weight should be given to the fact that the document refers to the parties’ “relationship over the last six years.” However, I have found that the reference to the parties being in a “relationship” begs the question as to whether the parties were in a de facto relationship for the purposes of the Act.
From February to May 2012, Ms Lennon travelled overseas.
In July 2012, Ms Lennon travelled to City W for a job interview. She relocated to City W the following month.
On 13 September 2012, the parties signed a lease for the property located at V Street, City W NT (‘the V Street property’). Mr Sanil contends that he co-signed that lease as Ms Lennon was concerned that she would not be successful in her application to lease the property if she were the sole applicant. Mr Sanil asserts that he did not contribute to the bond or any rental payments in respect of that property.
Between 15 and 17 February 2013, the parties spent time together in Brisbane. They attended a concert together on 16 February 2013. Mr Sanil acknowledged that he purchased the tickets for the concert as a gift. The parties are in disagreement as to whether they had sexual relations in Brisbane. This matter is discussed further below.
On 12 April 2013, Ms Lennon claims that Mr Sanil ended their relationship over the telephone.
In or around April 2013, Mr Sanil commenced a relationship with Ms AA.
On 17 April 2013, Mr Sanil sent an email to Ms Lennon which read:
Ms,
I have everything packed and it is at the office including keys, I can get someone to deliver it to Ms BB; give me a time.
Mr Sanil
In April 2013, Ms Lennon travelled to Sydney and the parties met at a bar. Mr Sanil contends that Ms Lennon stated: “Are you aware that we have been in a de facto relationship? If you give me $40,000 I won't pressure you for any more money.” Ms Lennon disputes the wording of that conversation, but agrees that such a conversation occurred and that she may have requested payment of $40,000 to resolve the matter.
In January 2014, the parties co-signed a lease for the property located at CC Street, Suburb DD NT (‘the CC Street property’) and, from that time, Ms Lennon commenced to reside there. Once again, Mr Sanil contends that he signed the lease to assist Ms Lennon to obtain the property in circumstances where it otherwise would have been difficult for her.
On 19 August 2014, Ms Lennon commenced proceedings in the Family Court of Australia, seeking an order that “That [the C Street property] be transferred to the Applicant Wife”.
On 7 September 2017, Mr Sanil filed the Application in a Case to which this judgement relates.
Applications
The orders sought by Mr Sanil are set out in ‘Attachment A’ to his case outline document, as follows:
1. Pursuant to Section 90RD of the Family Law Act 1975, the Court declare that a de facto relationship never existed between the Applicant and the Respondent.
2. That in the event that the Court declares that a de facto relationship did exist between the Applicant and the Respondent, that the Court also make a declaration in respect of the period, or periods, for which the de facto relationship existed.
3. That the Applicant pay the Respondent’s costs of and incidental to these proceedings.
On 28 October 2018, Ms Lennon filed a Response to an Application in a Case, in which she sought the following orders:
1. That the Court declare that a de facto relationship existed between the Applicant and Respondent, that the Court also make a declaration in respect of the period for which the de facto relationship existed.
2. That the Respondent be granted leave to rely on her Affidavit filed 17 November 2017.
3. That the Court makes any orders as it sees fit.
4. That the Applicant pay the Respondent's costs of an incidental to this application.
Material relied upon
At the hearing, Mr Sanil relied upon the following documents:
a)Affidavit of Mr Sanil filed on 6 July 2015;
b)Affidavit of Ms Y Sanil filed on 7 September 2017;
c)Affidavit of Ms EE filed on 7 September 2017;
d)Affidavit of Ms Q filed on 8 September 2017;
e)Affidavit of Ms U filed on 11 September 2017; and
f)Affidavit of Ms FF filed on 26 October 2018.
Ms Lennon relied upon the following documents:
a)Affidavit of Ms Lennon filed on 17 November 2017;
b)Affidavit of Ms Lennon filed on 2 December 2014;
c)Affidavit of Ms Lennon filed on 3 December 2014
d)Affidavit of Mr Z filed on 8 November 2017;
e)Affidavit of Ms HH filed on 8 November 2017;
f)Affidavit of Ms JJ Lennon filed on 30 October 2017;
g)Affidavit of Ms KK filed on 30 October 2017; and
h)Financial Questionnaire filed on 28 July 2015.
The following exhibits were relied upon:
a)Medical certificate for Ms Q 1 March 2019 (‘Exhibit 1H’);
b)Department of Immigration subpoena inspection notes (‘Exhibit 2H’); and
c)Report of Dr LL dated 25 September 2006 (‘Exhibit 3H’)
Credit
As reflected above, the written and oral evidence of the parties is at odds in a number of significant respects. Counsel for Mr Sanil contends that in order to resolve the competing factual contentions, it is necessary for the Court to make findings of credit in respect to the parties’ evidence. I respectfully agree, yet, in doing so I note the caution expressed in Whalan v Kogarah Municipal Council [2007] NSWCA 5 at 41, where it was observed:
To disbelieve a party (or any witness for that matter) who swears his or her oath is a serious finding and not to be undertaken lightly without good and sufficient reasons.
Overall, despite being drawn into arguments by Ms Lennon during the course of cross examination and despite also being asked to respond to a number of confusing questions and long-winded propositions put to him by Ms Lennon, Mr Sanil did his best to provide answers that were responsive and succinct. This included, on a number of occasions where he, without hesitation, responded to questions with answers that were against his interests. This included, for instance, acknowledgment that the parties slept in the same bed when they stayed at the same premises and they had sexual relations at various times. He was also prepared to accept that his recollection may have been flawed in respect to some of the dates that the parties lived under the one roof. One concerning aspect of Mr Sanil’s evidence was his initial reluctance to acknowledge the extent to which the parties socialised together and the extent to which, certainly in the earlier stages of the parties relationship, he expressed affection for Ms Lennon. Nevertheless, when pressed in cross examination in respect to those matters, Mr Sanil generally made an appropriate concession where that was necessary and appropriate.
Unfortunately, for reasons which I will explain, there were such serious flaws with Ms Lennon’s evidence in this case, that where it is at odds with the evidence of Mr Sanil, unless otherwise identified, I have preferred the evidence of Mr Sanil.
In forming that view I have applied the test for assessing the credibility of witnesses as set out in McGlen-McLeod v Galloway [2012] NSWCA 368. In that case Tobias AJA, with whom Allsop P and Campbell JA agreed, referred with approval to the test for assessing the truth of a witness's evidence as being stated by Tugendhat J in Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB) at 73, where said it was said:
There is great assistance to be obtained from extra-judicial writing of Lord Bingham in a chapter headed “The Judge as Juror: The Judicial Determination of Factual Issues” … Lord Bingham cited Sir Richard Eggleston QC Evidence, Proof and Probability (1978), 155 who set out the main tests to be used by a judge to determine whether a witness is lying or not.
(1) the consistency of the witness's evidence with what is agreed, or clearly shown by other evidence, to have occurred;
(2) the internal consistency of the witness's evidence;
(3) consistency with what the witness has said or deposed on other occasions;
(4) the credit of the witness in relation to matters not germane to the litigation;
(5) the demeanour of the witness."
I will now address those aspects of the test that I consider relevant in determining the issue of credit in this matter.
The demeanour of the witness
In the High Court decision of Kuhl v Zurich Financial Services Australia Ltd (2011) 276 ALR 375, the plurality said at 62:
Witnesses are supposed to answer questions put by counsel responsively: they are supposed to give a full answer, but no more. It is one thing to say that a witness was not asked the right questions. It is another thing to say that a witness did not answer the questions that were asked. And it is an even more serious thing to say that a witness was "reluctant" to answer. The duty of a witness is to tell the truth, the whole truth, and nothing but the truth so far as the questions asked seek it. The duty of a witness to answer questions responsively involves not only a negative duty (not to volunteer material for which the question does not call), but also a positive duty (to proffer all material within the witness's knowledge for which the question does call).
It is necessary to recognise that Ms Lennon is self-represented and some allowance must be made for a desire on her part to be both, at one and the same time, a witness and an advocate. However, the fact that Ms Lennon did so resulted in a substantial amount of her statements being a conclusion and submission by nature, rather than a direct account of what event or conduct occurred, where it occurred, when it occurred and how it occurred.
As result, for the most part, she was not an impressive witness. At certain times she appeared evasive and unable or unwilling to give direct answers to questions in clear or comprehensible terms. On several occasions, I found it necessary to intervene to ensure that Ms Lennon’s answers were responsive and were focused on the question asked, rather than venturing into material that had no bearing on the question asked but which she nonetheless insisted on placing on the record.
Counsel for Mr Sanil accurately described Ms Lennon’s demeanour during the course of the hearing, Transcript 12 March 2019, page.105 line 35 and page 106 line 10, as follows;
She has been … unable to refrain from arguing her case through the affidavit and in her oral evidence, expressing many conclusions without facts to support them. She was, in answering questions from me, particularly argumentative, gave frequently non-responsive answers to questions or gave an answer where some of it was responsive then followed by a lengthy speech which was not responsive, but was arguing and arguing her case. She did this repeatedly and quite defiantly despite directions from the court to do otherwise and despite me telegraphing that a submission of this kind would be made at the end of the case. None of that seemed to dissuade her from the course that she decided to take.
…
In my submission, she completely failed to discharge her obligations as a witness despite the court giving her the directions that it did. ...
I agree with counsel for Mr Sanil’s characterisation of Ms Lennon’s demeanour as a witness. In addition, Ms Lennon frequently appeared ill at ease in the witness box. While I make allowance for the fact that the giving of evidence in any court proceeding can be stressful, Ms Lennon’s presentation varied between attempting to be quite conversational including laughing at inappropriate times to appearing to be quite tense and ill at ease. In that respect, when Ms Lennon appeared ill at ease, she frequently stroked a ponytail that she wore over one shoulder. When asked about my observation of her tendency to engage in that conduct, Ms Lennon stated that it was simply “a bad habit”. My observation, however, was that a tendency to so stroke her ponytail occurred at times when she had difficulty in responding to a question asked of her by counsel for Mr Sanil. That aspect of Ms Lennon’s presentation is, of course, only a minor aspect of my consideration of her credibility. However, I place it on the record as, in the event that one of the parties may wish to seek a review of my decision, it is an observation that the Full Court will not be in a position to perceive.
The consistency of the witness' evidence with what is agreed, or clearly shown to have occurred
Ms Lennon’s written and oral evidence was inconsistent in a number of respects. For example, in her Affidavit filed on 3 December 2014, which is annexed to her trial Affidavit, she stated that she and Mr Sanil discussed jointly purchasing the C Street property within weeks of meeting in December 2005. This is at odds with Mr Sanil’s evidence that he purchased the C Street property in October 2005, prior to meeting Ms Lennon. During cross-examination, Ms Lennon conceded that Mr Sanil had purchased the C Street property prior to them meeting. While it suited Ms Lennon’s case to assert that she was involved in the purchase of the C Street property, it simply cannot be the case that the parties discussed the purchase of the property before it occurred.
Ms Lennon was cross examined by counsel for Mr Sanil in respect to the accuracy of the Financial Questionnaire which she completed on 28 July 2015. In that Financial Questionnaire she contends that she has a 50 per cent equitable interest in the C Street property. In response to the proposition put to her by counsel for Mr Sanil that she had no legal basis for making that statement, Ms Lennon maintained the accuracy of her assertion as set out in the Financial Questionnaire, stating that counsel for Mr Sanil was “incorrect because we had a verbal agreement that that would be – that we would, like, buy that together as our home, that we would live in it and have children.”
When further pressed by counsel for Mr Sanil, she stated “there was an agreement that we would buy the place together but it wasn’t … on the paper thing, but we had a - it was a - it was like a - a trust type of agreement.”
When I subsequently asked Ms Lennon to clarify that aspect of her evidence her response to my question, which I set out below, per Transcript 7 March 2019 p age 85 line 15-20, was as follows:
HIS HONOUR: where you say at the time that the C Street property was purchased that you had a verbal agreement?
MS LENNON: Yes.
HIS HONOUR: And you said it was like a trust type of agreement?
MS LENNON: Yes. But I didn’t know that at that point in time when I applied for this. I’ve only become aware of it later, thinking, well, that agreement should have been that.
Retrospectively characterising an arrangement, in light of what she contends is subsequent information that she obtained, is an entirely different proposition from asserting that the parties at the time of purchase of the C Street property had a “verbal agreement” that Ms Lennon would have an equitable interest in that property.
As a separate issue, during cross-examination Ms Lennon denied that she had an association with a lawyer from Town RR, as initially contended by Mr Sanil in his affidavit, stating that she “never had anything with anybody like where [she] worked at Town RR”. However, after further questioning by counsel for Mr Sanil, Ms Lennon accepted that she had a sexual relationship with a “long-term friend” who is a lawyer from Town E named “Mr MM”. Ms Lennon was, however, evasive, as to when she had that relationship stating that she could not recall and “it was like a good few years into – into the thing. Because I’ve known the person for so long, it’s really hard to say that. But I – is not a relationship, and that”.
Ms Lennon had not previously included that fact in any of her Affidavit evidence, in circumstances where it could reasonably have been expected that she would have corrected Mr Sanil’s evidence as set out in his trial Affidavit where he contended that Ms Lennon have a relationship with a lawyer from Town RR rather than Town E. As a result of that admission, I consider that Ms Lennon has sought to present only those aspects of the factual matrix relevant to this matter which support her contentions.
The credit of the witness in relation to matters not germane to the litigation
On 7 November 2008, Ms Lennon applied for the First Home Owners Grant in relation to her purchase of the J Street property. In that application, she indicated that she was living at the C Street property, but that she did not have a spouse or partner. That is inconsistent with her claim, in this matter, that she and Mr Sanil were in a de facto relationship between December 2005 and April 2013.
During the hearing, Ms Lennon also conceded that she may not have been eligible for receipt of that grant if she had disclosed that, as asserted by her, she and Mr Sanil were in a de facto relationship at the time of that application and that she had, as she contends in these proceedings, “an equitable interest in the C Street property.”
It is clear that, Ms Lennon has either misrepresented her position to the New South Wales Government, in stating that she was not in a de facto relationship as at 7 November 2011, or to this Court in stating that she was in such a relationship at that time. I will, subsequently, further discuss the significance of the information provided by Ms Lennon in that application for the First Home Owners Grant.
The law – concepts and principles
Mr Sanil has sought a declaration, pursuant to s 90RD of the Act that a de facto relationship never existed between himself and Ms Lennon. Comparatively, Ms Lennon has sought a declaration that a de facto relationship did exist between the parties. The Court’s powers in respect to declarations about the existence of de facto relationships are set out in at s 90RD of the Act, which provides :
(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 relevant principles to apply in determining this matter were helpfully summarised by Tree J in Rooks & Padley [2014] FamCA 444 at 5-10, as follows:
[5] Pursuant to s 90RD(1) of the Family Law Act 1975 (Cth) (“the Act“) this Court is empowered in proceedings brought under, among other provisions, s 90SM of the Act, to declare for the purposes of those proceedings that a de facto relationship existed, or never existed, between the parties.
[6] The definition of “de facto“ relationship for the purposes of the Act is contained in s 4AA. Sub-s (1) provides as follows:
4AA(a) 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 subs (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. (Emphasis added)[1]
[1] Emphasis added having regard to the decision of the full court in Cadman & Hallett (2014) FLC 93.603 at 43.
Paragraph (c) has affect subject to subs (5).
[7] Sub-section (5) provides as follows:
For the purposes of this Act:
(a)a de facto relationship can exist between two persons of different sexes and between two persons of the same sex; and
(b)a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.
[8] Some elaboration of the circumstances relevant to working out if persons have a relationship as a couple is contained in subs (2). That provides as follows:
Those circumstances may include any or all of the following:
(a)the duration of the relationship;
(b)the nature and extent of their common residence;
(c)whether a sexual relationship exists;
(d)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e)the ownership, use and acquisition of their property;
(f)the degree of mutual commitment to a shared life;
(g)whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h)the care and support of children;
(i)the reputation and public aspects of the relationship.
[9] Statutory guidance as to the inter-relationship of those circumstances, and the weight to be given to them, is provided in subs (3) and (4) as follows:
(3)No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4)A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
[10] Those provisions, or their state counterparts, have been the subject of considerable judicial discussion, principally in an attempt to more precisely analyse what will comprise “a couple“. Much of that analysis seems to have its genesis in the difficulty in satisfactorily distilling the essence of such a common, everyday concept. From those decisions the following propositions may be stated:
(a)Whether a de facto relationship exists or not is a question of fact, not a matter of discretion;
(b)A de facto relationship does not need to be akin to a marriage although the nature of the association involved in a marriage relationship may be instructive;
(c)The parties determine the nature of their relationship and it may evolve and alter, even dramatically, over time;
(d)Whilst a composite expression, it is comprised of two parts “a couple“ and “living together“ each of which must be established;
(e)There need not be full time living together;
(f)The relationship may be unhappy, but still subsisting;
(g)Sexual or other exclusivity is not necessary;
(h)The gist of the inquiry is the degree to which parties have merged their lives into one. That connotes financial, emotional and physical interdependence.
References omitted
I place particular emphasis on the wording of section 4AA(a)(c) of the Act which requires me, as the trial judge hearing this matter to have regard to “all the circumstances of [the parties] relationship” with a view to determining whether “they have a relationship as a couple living together on a genuine domestic basis.”
In Ricci v Jones [2011] FamCAFC 222 at 23, it was confirmed that the person asserting the existence of a de facto relationship carries the burden of proving that to be the case. Citing that authority, the Court noted in Rushdie & Moshin [2017] FamCA 859 at 66 that: “The onus of proof is on the balance of probabilities: see s 140(1) of the Evidence Act 1995 (Cth)”.
In Hayes v Marquis [2008] NSWCA 10, McColl JA suggested that in undertaking the task of determining whether the parties are in a de facto relationship it is “necessary to consider the evidence as a whole, not under isolated headings.” I respectfully agree with that approach which is consistent with the decision of the Full Court in Sinclair & Whittaker [2013] FamCAFC 129 (Bryant CJ, Thackray and Aldridge JJ) where it was stated at 54-55:
Thus, whether or not a de facto relationship, as defined, exists will depend upon an assessment of all of the circumstances of the relationship, each to be given the weight the court thinks appropriate.
In Lynam v Director-General of Social Security (1983) 52 ALR 128 at 131 said:
Each element of a relationship draws its colour and its significance from the other elements, some of which may point at one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.
(References omitted)
In this matter both parties placed considerable emphasis on whether they were or were not living together in a common residence. That is an important consideration but as noted, on the basis of those authorities, it is just one of the factors that I am required to consider under s 4AA of the Act. In this case, determination of whether the parties actually resided in a common residence provides a convenient framework for considering the totality of matters that I am required to consider in determining whether the parties were in a de facto relationship.
Consideration
The nature and extent of their common residence
In Gissing & Sheffield [2012] FMCAfam 1111, it was held that a couple are not required to live together on a full time basis, in the sense of unbroken periods, or for the majority of the relationship, for it to be characterised as a de facto relationship.
Also of relevance is Dahl & Hamblin (2011) 46 Fam LR 229 at 230, where it was held that “one or both [de facto partners] may commence proceedings under Part VIIIAB if they can establish that the relationship has existed for periods aggregating at least two years and that at least one of those periods occurred after the commencement of Part VIIIAB on 1 March 2009”.
There is considerable divergence between the parties’ evidence regarding the extent of their common residence. Ms Lennon asserts that the parties were in a de facto relationship from January 2006 until 12 April 2013, living together and apart, between various residences. Comparatively, Mr Sanil asserts that, while Ms Lennon stayed at his property during certain periods, they were never in a de facto relationship.
To substantiate her claim that the parties were living together, Ms Lennon refers to an annexure to her Affidavit being copies of correspondence including from government utilities, banks and a tyre repair company to establish that she was living with Mr Sanil at either the C Street property, the D Street property or the S Street property. Consistent with her attempt to corroborate her place of residence, Ms Lennon attaches to her Affidavit copies of council parking permits that she obtained from the local Council, in respect to each of those addresses.
As I will explain, however, the evidence that Ms Lennon nominated those residences as her mailing addresses and obtained parking permits in respect to those addresses, does not displace the other evidence to which I will refer immediately below that provides more concrete evidence of where the parties were actually living.
I will now address each of the relevant periods during which a common residence is asserted by Ms Lennon. This involves examining the history of where the parties respectively lived between the time of the parties’ meeting in December 2005 and when Ms Lennon says their relationship ended, on 12 April 2013.
Period from January 2006 to July 2007
Ms Lennon contends that, after meeting on 17 December 2005, she moved in with Mr Sanil in January 2006 at the C Street property and that property remained the parties’ primary residence until July 2010. For reasons which I set out, I do not accept that contention.
It is agreed that Ms Lennon stayed at the C Street property from the end of January 2006. The date Ms Lennon moved out is unclear. Mr Sanil contends that Ms Lennon moved out of the C Street property the day after an altercation with Mr Sanil’s daughters which occurred on or about 6 February 2006. During the course of proceedings, Ms Lennon acknowledged that she moved out of the C Street property at the time of, or shortly after, events that occurred on 6 February 2006, however, she contends that she did so only temporarily.
It is agreed that Ms Lennon stayed at the home of her brother Mr A after she moved out of the C Street property although Ms Lennon contends this was only temporary.
In cross examination, Ms Lennon also sought Mr Sanil’s response to the proposition that at some time between 6 February 2006 and the time that she left for overseas in March 2006 she returned to stay at the C Street property. That proposition was denied by Mr Sanil. Ms Lennon, who carries the onus of proof on the matter, did not present any evidence to challenge the accuracy of that response other than the fact that the parties applied for parking permits in respect to the C Street property in March 2006. For reasons which I have previously explained, I prefer the evidence of Mr Sanil where it differs from that of Ms Lennon including in respect to this issue.
The parties agree that Ms Lennon travelled overseas, to America and Europe for two months from March 2006, returning to Australia on 25 May 2006.
Mr Sanil stated, when Ms Lennon lived with him at the C Street property in January and February 2006 that Ms Lennon made approximately one meal per week which they shared, however, on other occasions he prepared his own meals because he is a vegetarian. Mr Sanil’s daughters who have given evidence in these proceedings corroborate his evidence that Ms Lennon seldom cooked meals for both herself and Mr Sanil during the period and I accept that to be the case.
Mr Sanil attested to undertaking his own household chores when Ms Lennon stayed at the C Street property in January and February 2006. This included making the bed, cleaning the floors and looking after his own laundry. He was not challenged on that evidence and I accept it to be accurate.
Following May 2006, Mr Sanil states that Ms Lennon lived between Mr A’s property and the women’s shelter. Ms Lennon asserts that, after she returned to Sydney in May 2006, she lived with Mr Sanil at the C Street property. Mr Sanil denies that is the case. For reasons which I explain immediately below I accept the evidence of Mr Sanil.
At paragraph 12 of her trial Affidavit, Ms Lennon acknowledged that, at some point following January 2006, she spent some time at Town E where she states she “previously frequently resided following domestic violence from Ms X.” It is not disputed that Ms X is Mr Sanil’s daughter and that the first time that Ms Lennon met Ms X could not have been before December 2005 and that the “domestic violence” referred to would have, therefore, occurred in January or February 2006. Therefore it is necessarily the case, on Ms Lennon’s own evidence, that sometime after February 2006 she spent some time living at Town E.
The evidence of Mr Sanil, that Ms Lennon did not live at the C Street property in the period immediately following February 2006 is corroborated by an entry declaration form for the purposes of Australia’s immigration requirements which was completed by Ms Lennon in preparation of her arrival into Australia, on 25 May 2006.
In that respect the requirement for incoming passengers to complete incoming passenger cards accurately is prescribed in the Migration Act 1958 (Cth) (‘Migration Act’) – including that “no incorrect answers are [to be] given” (s 102(b) of the Migration Act) and such documents cannot contain “false or misleading” information (s 234(1)(c) of the Migration Act).
The question then becomes whether the information contained on the incoming passenger card accurately represented Ms Lennon’s intentions.
In that respect, I note that courts generally presume that members of society will act lawfully. In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 450, the High Court referred to:
… a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
(Footnotes omitted)
As a practicing lawyer, it is, in my view, improbable that Ms Lennon provided false and misleading information on her incoming passenger card when she re-entered Australia in May 2006.
That declaration must also be considered in the context of the evasiveness of Ms Lennon’s evidence in respect to the nature of her relationship with the lawyer from Town E identified in these proceedings by the name of Mr MM to whom I earlier referred.
In August 2006, Ms Lennon was interviewed for the purposes of a workers compensation claim. During the course of that interview she stated that she was single and had one dependent child and that she was living at the C Street property. However, in his completion of a psychological assessment for Ms Lennon, in September 2006, Mr SS Vocational Psychologist, stated that Ms Lennon lived in Town TT and was housesitting in Sydney, at the time the report was being prepared.
I accept that Mr SS had no way of independently ascertaining that information and could only have received that information from Ms Lennon herself. Ms Lennon states that she had previously travelled to and stayed in Town TT, but that Mr SS was mistaken in his recording of her address, at that time. However, the record made by Mr SS is also consistent with a record made by a medical practitioner who also assessed Ms Lennon at about that time.
In that respect, counsel for Mr Sanil tendered a report of Dr LL dated the 5 September 2006, which is marked ‘Exhibit 3H’ in the proceedings. In that report, which is in respect to an assessment made on 22 August 2006, Dr LL records Ms Lennon’s marital status as single. He does record Ms Lennon’s place of residence at that time as being C Street property, however, under that record it is noted that the advice provided by Ms Lennon was that she normally resides in Town E. Dr LL stated at paragraph 5.1 of the report that, at the date of the assessment, Ms Lennon was housesitting at the C Street Property, however, her permanent home address is in Town E, where she shares a house with a friend from law school. Further, under paragraph 5.2 it records details of Ms Lennon’s spouses’ employment which notes “there is no spouse.”
In preferring the evidence of Mr Sanil on this matter, I have also had regard to inconsistencies in Ms Lennon’s evidence as to when she moved into the F Street property.
In her Affidavit at filed on 3 December 2014, Ms Lennon states:
[Mr Sanil] tried to find a place to for us to rent while I was on holiday. He applied for something while I was away without me knowing but it fell through. When I returned we found a suitable furnished studio at F Street Suburb A (“F Street”) that we rented when I got back.
In the immediately preceding paragraph to that statement, Ms Lennon refers to a two-month holiday that she took to the United States and Europe. Immigration records (‘Exhibit 2H’) indicate that Ms Lennon took that trip from 20 March 2006 to 25 May 2006.
The Residential Tenancy Agreement for the F Street property, which is annexed to Ms Lennon’s Affidavit filed on 17 November 2017, shows that the lease of the F Street property commenced on 16 July 2007. That is, more than one year and 7 weeks after Ms Lennon’s returned from the holiday to the United States and Europe. It was not, as asserted by Ms Lennon “within days” of her returning from holidays which, as noted, I have inferred to be a reference to a holiday to the United States and Europe which took place in March and May 2006.
Additionally, immigration records show that Ms Lennon was out of the country from 16 May 2007 to 12 July 2007. It would therefore seem more likely that the parties signed the lease for the F Street property after she returned from that travel in 2007, and not in mid-2006, as originally contended by Ms Lennon in her Affidavit filed on 3 December 2014.
This inaccuracy is significant because it firstly goes to the issue of credibility and, secondly, because it leaves open the question about where Ms Lennon was living in the period between 25 May 2006 and 16 July 2007.
Accordingly, by way of summary, as result of the inconsistency, inaccuracy and inadequacy of Ms Lennon’s evidence, I prefer the evidence of Mr Sanil, that the parties did not live together in the period subsequent to March 2006 and that they did not commence to stay under the one roof together until that occurred in March 2007 at the C Street property.
It is accepted that, on 16 May 2007, Ms Lennon travelled overseas to Asia. As I explained above, I am satisfied that upon her return on or about 16 July 2007, Ms Lennon commenced to stay at the F Street property which had been leased on her behalf by Mr Sanil during the time that Ms Lennon was overseas.
Mr Sanil acknowledges that in the period between March 2007 and 16 May 2007 Ms Lennon stayed in his bedroom at the C Street property and they had sexual intercourse “occasionally”. He states that he paid for all outgoings in respect of the period and that Ms Lennon paid for her own personal expenses. This evidence was not contested by Ms Lennon and I accept its accuracy.
Period from May 2007 to July 2007
The records of Ms Lennon’s overseas travel are summarised in the document which is Exhibit 2H. After having the opportunity of examining that summary, Ms Lennon accepted its accuracy. Having regard to that document I am satisfied that in the period from 16 May 2007 until 12 July 2007, Ms Lennon travelled overseas primarily to Asia and South-East Asia.
Period from 16 July 2007 to October 2008
As noted above, on 16 July 2007, Mr Sanil signed a lease of the F Street property. Mr Sanil contends that Ms Lennon paid the weekly rent in respect to that property. Both parties agree that Ms Lennon lived at that F Street property after the lease was signed from 16 July 2007. However, Ms Lennon contends that she and Mr Sanil lived between the F Street property and C Street property, as a couple. Mr Sanil disputes that, stating that he continued to live at the C Street property, during that time, without Ms Lennon. Mr Sanil does, however, acknowledge that he regularly visited Ms Lennon at the F Street property and on those occasions the parties would, from time to time, have sexual relations.
Ms Lennon, in response to questions from counsel for Mr Sanil initially stated that Mr Sanil was living with her at the F Street property but subsequently modified her answer to state that she was “living between [the F Street property] and C Street, and so was [Mr Sanil].” Ms Lennon further stated that “we were always together between both properties”.
That evidence of Ms Lennon is, however, inconsistent with her initial evidence that “because the daughters [that is the daughters of Mr Sanil] were back we had to be separate, like, you know, have it be separate sort of thing, so – and because I couldn’t live [with] them after, like, the violence.” That evidence is consistent with the evidence of Mr Sanil, that Ms Lennon did not frequently stay at the C Street property during this period.
Accordingly, I prefer the evidence of Mr Sanil and I find that, during the period from 12 July 2007 until 2 October 2008, the parties lived separately and apart, with Mr Sanil continuing to live at the C Street property and Ms Lennon living at the F Street property. I accept that, during this period that Ms Lennon did “sometimes” stay at the C Street property. I also accept that during that period Mr Sanil visited Ms Lennon at the F Street property, at least on a fortnightly basis, when he usually spent the night with her.
At paragraph 34 of his trial Affidavit, Mr Sanil contends that Ms Lennon lived at the F Street property from 16 July 2007 until 2 October 2008. That evidence is consistent with documentation evidencing the tenancy and I accept its accuracy.
Period from October 2008 to February 2009
It is acknowledged that Ms Lennon moved into a property located at J Street in early February 2009. It is not disputed that Ms Lennon purchased that property in her own name and that, to assist in the purchase of that property, she applied for and received the First Home Owners Grant.
In cross examination from Ms Lennon, Mr Sanil acknowledged that immediately prior to moving into the J Street property in February 2009, Ms Lennon stayed in his residence at the C Street property. Mr Sanil’s evidence in that respect was that he terminated the lease on the F Street property after he was advised by Ms Lennon that she had seen a property that she was interested in purchasing at Suburb A. He stated that, while Ms Lennon was waiting for settlement on the property, he agreed to her request to stay at the C Street property to enable her to save some money to assist in the purchase.
On the basis of that evidence I infer that Ms Lennon stayed at the C Street property from the termination of the lease on the F Street property until she moved into the J Street property. That was a period from approximately 2 October 2008 until early February 2009.
Period from February 2009 to July 2010
The parties agree that Ms Lennon lived at the J Street property between February 2009 and July 2010.
However, Ms Lennon states that, during that period, she regularly spent time with Mr Sanil at the C Street property. Mr Sanil attested that while Ms Lennon spent some time with him at the C Street Property it was of a limited nature.
Mr Sanil’s evidence, in that regard, is supported by the Affidavit of his sister, Ms Q. The parties agree that Ms Q lived at the C Street property from early 2009 to May 2010. During cross examination, Ms Q stated that she did not recall Mr Sanil staying with Ms Lennon at the J Street property on “a lot of nights” during the period that Ms Q lived at the C Street property. She also stated that Ms Lennon did not frequently stay at the C Street property. In that regard, in response to a question put to her by Ms Lennon, Ms Q stated: “I can only say what I saw in that 18 months that I lived at C Street. I did not see you [Ms Lennon] ever stay the weekend. You [Ms Lennon] never stayed the weekend. You [Ms Lennon] never came for dinner. We never came out with you [Ms Lennon]”.
In contrast to Ms Q’ testimony, Mr Z (Ms Lennon’s son) states in his Affidavit: “I sometimes stayed at J Street by myself while [Mr Sanil] and My Mother were at C Street…” and “[Mr Sanil] was regularly at J Street with My Mother and between C Street as was my mother. I regularly saw them both during this time and we had dinner…”.
With respect to Mr Z, he is, of course, able to give evidence of the fact that there were occasions where he stayed at the J Street Property by himself. He is also in a position to give evidence as to Mr Sanil staying at the J Street Property during times that he also stayed at that property. He is not, however, able to give evidence as to where his mother, Ms Lennon stayed when she was not with him.
In those circumstances, I prefer the evidence of Mr Sanil which is supported by the evidence of his sister Ms Q that, during this period from February 2009 and July 2010, Ms Lennon infrequently stayed at the C Street property. I accept however, that Mr Sanil regularly stayed at the J Street property with Ms Lennon.
I note that conclusion is also consistent with Ms Lennon recording her residence as being the J Street property on her tax returns, superannuation statements and bank accounts in the period subsequent to February 2009. Instances where that occurred are ‘Annexure G’ to the trial affidavit of Mr Sanil.
Period from July 2010 to August 2012
As noted above, in May 2010, Mr Sanil purchased the 1 S Street property. That property was purchased in the name of his superannuation fund Mr Sanil Superannuation Fund. Mr Sanil acknowledges that Ms Lennon did the conveyance for that purchase and states that he paid her the sum of $1500 for her services. I accept his evidence in that respect.
Within approximately two weeks of acquiring the 1 S Street property, Mr Sanil entered into an agreement with the neighbour of that said property, which was located at 2 S Street. The arrangement was that Mr Sanil would move into the neighbours unit at 2 S Street by way of a residential tenancy. The reciprocal arrangement was that the owner of the unit at 2 S Street moved into Mr Sanil’s property at C Street also on the basis of a residential tenancy.
Summary and conclusion
In this matter, I am required to characterise the nature of the parties’ relationship in the period from December 2005 until April 2013 (‘the relevant period’). As noted previously in this decision, the periods during which the parties have lived under the one roof provides a framework for the consideration of the nature of the parties’ relationship. I have found that the parties lived under the one roof on the following occasions;
·For a period of several weeks in January and February 2006
·In the period from a date in March 2007 until 16 May 2007
·In the period from 2 October 2008 until early February 2009
·In the period from 13 October 2010 until the 15 August 2012.
In other words, in the period from December 2005 until 13 October 2010, being a period of 57 months, the parties spent approximately 7 months living together under the one roof. That equates to about a 12.5 percent of the time they spent living together spread over the period of almost 5 years.
I have concluded that the parties maintained separate financial affairs in the relevant period and have continued to do so.
I am satisfied that, in the relevant period, the parties have attended a number of family and social functions together and that, on occasions, they have publicly demonstrated affection for each other at those events. However, it is by no means the case that the parties have exclusively socialised with each other. Significantly, Ms Lennon did not accompany Mr Sanil when he socialised with his daughters. It is also relevant that Mr Sanil regularly socialised with Ms EE and her husband during the relevant period without Ms Lennon being present. Further Ms Lennon’s son attested to Ms Lennon generally preferring to stay at home unless she was socialising with other female friends.
Against the fact that the parties did regularly socialise with each other during the relevant period is the fact that Ms Lennon took a number of overseas holidays on her own. It is of further significance that, during the course of several of those holidays there were occasions when she met up with Mr R, with whom she had a close friendship as evidenced by one acknowledged sexual encounter and the substantial amount of money that he gifted her.
A matter of considerable significance in determining whether the parties were in a de facto relationship is that whenever they stayed together under the one roof they slept in the same bed and I am satisfied that they regularly had sexual relations. The question becomes whether that fact is of such significance that it determines the characterisation of the parties relationship such that I should conclude that the parties were in a de facto relationship.
In my view it does so result in that characterisation of the parties’ relationship, as a de facto relationship, in the period subsequent to 13 October 2010 until the parties separated in late August 2012 but not in respect to the period before 13 October 2010.
Dealing first with the period that I have found a de facto relationship to exist – the fact that the parties slept in the same bed and regularly had sex for a continuous period of almost two years is a significant indicator that they were in a de facto relationship even though I accept that Mr Sanil communicated significant reservations as to whether the relationship was sustainable. The fact that Mr Sanil required Ms Lennon to sign a document rejecting that characterisation of the relationship does not alter the reality as evidenced from the intimate nature of the relationship, during that period, to which I have referred.
It is also relevant that, during that period, subsequent to October 2010 that I have found a de facto relationship to exist, in early 2012 the parties jointly travelled to the United States. It is also relevant that they spent Christmas together with other members of Mr Sanil’s family at Mr Sanil’s mothers’ nursing home on Christmas 2011.
I note that the parties agree that Ms Lennon commenced employment in City W on 13 September 2012 and that she travelled up to City W over a period of two weeks before that and, according to Mr Sanil, she stayed for two weeks in her own car before renting accommodation in City W. Accordingly I am satisfied that the parties had ceased to live together from at least 15 August 2012.
I am satisfied that Ms Lennon, in the period after August 2012, commenced to establish her life independently from Mr Sanil. This included obtaining and paying for her own accommodation. The fact that the parties did meet on several occasions in the period subsequent to August 2012 at which time they resumed a sexual relationship is insufficient to establish that, in the period subsequent to August 2012, the parties had “a relationship as a couple living together on a genuine domestic basis.”
I am satisfied that is also the case, in respect to the period prior to 13 October 2010, the relatively small amount of time that the parties spent living together under the one roof combined with the fact that they maintained separate financial affairs and the fact that Ms Lennon regularly holidayed overseas for extensive periods without Mr Sanil is such that I am not satisfied that, during that period, the parties had a relationship that could be characterised as “a relationship as a couple living together on a genuine domestic basis.” In arriving at that conclusion I have noted that the parties specifically agreed that Ms Lennon would obtain her own rental accommodation at the F Street property to enable the parties to assess where there relationship was heading. It is also relevant that parties purchased property separately from each other. This includes Ms Lennon purchasing and moving into the J Street property on her own.
Accordingly, having regard to those matters which I have summarised as the most significant matters underpinning my decision together with the other findings I have recorded in this decision, I am satisfied the parties were not in a de facto relationship in the period prior to 12 October 2010. I am, however, satisfied that they were in a de facto relationship in the period between 13 October 2010 and 15 August 2012. I make a declaration to that effect.
I certify that the preceding three hundred (300) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice McClelland delivered on 16 August 2019.
Associate:
Date: 16 August 2019
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