Sayers and Gilpin and Anor

FEDERAL CIRCUIT COURT OF AUSTRALIA

SAYERS & GILPIN & ANOR

[2015] FCCA 3402

Catchwords:
FAMILY LAW – De facto – whether a de facto relationship existed – where Trustee in Bankruptcy seeks a declaration that a de facto relationship did not exist – where parties to alleged de facto relationship seek a declaration that de facto relationship did exist – where evidence of the parties conflicted – where evidence not supported – where evidence was lacking – Held that a de facto relationship did not exist.

Legislation:

Family Law Act 1975, ss.4AA, 90RD, 90RE, Pt VIIIAB

Roy & Sturgeon (1986) 11 FLR
S & B (No.2) (2004) 32 Fam LR 429

Applicant:

MS SAYERS

First Respondent:

MR GILPIN

Second Respondent:

MR AIRD

File Number:

LEC 480 of 2014

Judgment of:

Judge L. Turner

Hearing date:

22 July 2015

Date of Last Submission:

22 July 2015

Delivered at:

Brisbane

Delivered on:

27 November 2015

REPRESENTATION

Counsel for the Applicant:

Ms Smith

Solicitors for the Applicant:

David Hunter

The First Respondent appeared in person

Counsel for the Second Respondent:

Ms Glover

Solicitor for the Second Respondent:

Douros Jackson Lawyers

ORDERS

That pursuant to section 90RD Family Law Act 1975 that a de facto relationship, as defined pursuant to the provisions of section 4AA never existed between the applicant Ms Sayers and the respondent Mr Gilpin.
That all applications in respect to the de facto property proceedings are hereby dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT LISMORE

LEC 480 of 2014

MS SAYERS

Applicant

And

MR GILPIN

First Respondent

MR AIRD

Second Respondent

REASONS FOR JUDGMENT

Ex Tempore

These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

Introduction

This matter is somewhat unusual.
The applicant is Ms Sayers and the respondents are Mr Gilpin and his Trustee in Bankruptcy.

Issue

The issue requiring determination is whether a de facto relationship existed between Mr Gilpin and Ms Sayers.

Position of the parties

Ms Sayers and Mr Gilpin are seeking a declaration that a de facto relationship existed between 1993 and mid-2010.
The Trustee in Bankruptcy is seeking a declaration that a de facto relationship never existed between Ms Sayers and Mr Gilpin.

Evidence

In considering this issue, regard has been had to:-
a)The material as marked on the Court file;
b)The oral and written submission of the parties;
c)The relevant legislation; and
d)The relevant authorities.
Ms Sayers and the Trustee in Bankruptcy are legally represented.
Mr Gilpin is self-represented.
Cross-examination did not occur.
Findings of fact are made on the balance of probabilities having regard to the evidence and in what follows, statements of fact constitute findings of fact.

The party’s versions of events

Before considering the law, it is useful to capture each party’s version of events.

Ms Sayers’ version of events

Ms Sayers is 52 years old.
Mr Gilpin is nearly 66 years old.
In 1989 Ms Sayers’ first child, X, was born.
In 1993 Ms Sayers met Mr Gilpin.
At the time Mr Gilpin was running a (business omitted) in Sydney and living in a flat attached to the (business omitted) and Ms Sayers was living in a Housing Commission home.
The parties did not live together, but Ms Sayers spent three to four nights in the flat and did unpaid work in the (business omitted).
In 1996 the child Y was born; Ms Sayers refers to Y as “our son”.
Between August 2001 and February 2003, Ms Sayers was incarcerated, during which time X and Y were in the care of X’s father.
During her incarceration, Mr Gilpin spent weekend time with the children, visiting Ms Sayers in jail.
Between February 2003 and July 2003 the parties lived together in (omitted) in Sydney.
In July 2003 the parties signed a lease for a unit in (omitted) and the parties lived there until September 2005.
In September 2005 Mr Gilpin purchased in his sole name a unit in the same complex at (omitted) and the parties moved into that unit.
During their time together, Mr Gilpin purchased a number of properties in his own name.
In 2007 Mr Gilpin purchased in his name a unit at Property S near (omitted) for Ms Sayers and Y to move into.
Mr Gilpin remained in Sydney with Mr Gilpin visiting regularly in Property S and Ms Sayers visiting regularly in Sydney.
In 2010 Mr Gilpin purchased in his name a house at Property B for Ms Sayers and Y to move into with the parties continuing in their long distance relationship.
In 2010 the parties separated when Mr Gilpin informed Ms Sayers that he was in a new relationship.
In 2013 Mr Gilpin was declared bankrupt.
Ms Sayers outlines her contributions during the relationship as being:-
a)Non-financial contributions by assisting Mr Gilpin in the (business omitted) at the commencement of the relationship by carrying out (omitted) duties.
b)Non-financial contributions during the relationship by way of day to day chores such as cooking, washing, preparing meals, housework, gardening and other activities of that nature.
c)Financial contributions by way of renovations to the Property S property which cost $5,000, including carpet, new toilet, repairs to benches and cupboard in the kitchen, laying turf and other landscaping.
d)Non-financial contributions by being the primary carer for Y.
Ms Sayers, by way of corroborating evidence, provided an affidavit by her mother, Ms R, which provided:-
a)That Ms R had observed Ms Sayers and Mr Gilpin over time during visits to their homes in Sydney and (omitted).
b)That Ms R was aware that they had a child together and that Mr Gilpin treated both children as his own.
c)That their life together was somewhat unusual, with Mr Gilpin initially living in the (business omitted) and Ms Sayers sharing a flat with him until serving 18 months in prison.
d)That Ms R had stayed with Ms Sayers and Y in the Property B property.
e)That Ms R admits not being involved in their day to day life and that months went by when she did not see her daughter but, as far as Ms R was concerned, Ms Sayers and Mr Gilpin were living as a couple in a relationship raising children between mid-1990s until about 2010.

Mr Gilpin’s version of events

Mr Gilpin was in a de facto relationship with Ms Sayers for many years when X was very young and before Y was born.
During this relationship, there were periods where they did not live together, including two years when Ms Sayers was in prison.
Mr Gilpin has always considered Y to be his own son and has treated both children like his own children and has a close relationship with the children.
Ms Sayers lived with Mr Gilpin at the (business omitted) and at (omitted).
Mr Gilpin was together with Ms Sayers when the Property S property and the Property B property were purchased in Mr Gilpin’s name.
Ms Sayers contributed to the properties, including, with the Property B property, fixing the roof of the studio, gutters and pipe, walls and leaking floor, paying for a water tank and pump and stove-hood and smoke alarm and doing work in the garden and painting the house and putting in new carpet, toilet and cupboard doors.
After Mr Gilpin met his new partner, Ms M, he told Ms Sayers that he would give her the Property B property after he had refinanced it.
Mr Gilpin delayed telling Ms Sayers about going bankrupt.
Mr Gilpin considered Ms Sayers to be his partner and now his ex-partner.
The reason Mr Gilpin told the Trustee previously that Ms Sayers was not his partner was because he was scared he would lose everything.
Last time Mr Gilpin saw Y was in June 2014, but he sees and speaks to X all the time.
No affidavits were filed in support of Mr Gilpin’s evidence.

Trustee in Bankruptcy’s version of events

In November 2011 Mr Gilpin purchased the Property B property subject to a mortgage.
In 2013 Mr Gilpin was declared bankrupt and Mr Aird was appointed as the Trustee in Bankruptcy.
During Mr Aird’s time overseas, Mr N acted as the Trustee in Bankruptcy in respect to Mr Gilpin’s bankrupt estate.
The Trustee in Bankruptcy discovered the bankrupt’s ownership of the Property B property, which was occupied rent free by Ms Sayers.
Mr Gilpin informed the Trustee in Bankruptcy that Ms Sayers was his ex-girlfriend.
In December 2013 the Trustee in Bankruptcy wrote to Ms Sayers seeking weekly rent of $850 per week for the Property B property.
In January 2014 the legal representative for Ms Sayers wrote to the Trustee in Bankruptcy advising that:-
a)Ms Sayers and Mr Gilpin had been in a de facto relationship from 1990 to 2010.
b)Mr Gilpin was the father of Y.
c)Ms Sayers had made considerable financial and non-financial contributions to the relationship.
d)Ms Sayers was commencing property proceedings for the division of the de facto property pool.
In January 2014 the Trustee in Bankruptcy inquired as to the nature of Mr Gilpin’s relationship with Ms Sayers and was informed during a telephone conversation with Mr Gilpin, that “they never lived together” and that Ms Sayers “merely lives in the property” and that the property should be sold.
On 11 February 2014 a telephone conversation occurred between Mr M from the Trustee in Bankruptcy’s office and Ms Sayers and her legal representative with the file note recording the following:-
a)Ms Sayers and Mr Gilpin were in a monogamous relationship for 20 years from 1990 to 2010.
b)There are two children of the relationship Y, aged 17 and another child who is deceased.
c)As for living together during the relationship, Ms Sayers advised that it was on/off and that Mr Gilpin was a bit of a gypsy.
d)As to Ms Sayers’ financial contributions, Mr Gilpin was the main breadwinner and Ms Sayers worked on the property and any money earned would be put into the “family coffers” and be put towards maintaining and improving property.
e)Mr Gilpin has been promising to give Ms Sayers the property at Property B for the past three to four years.
On 18 March 2014 the Trustee in Bankruptcy met with Mr Gilpin and in the handwritten file notes of the meeting, the following was record:-
a)Mr Gilpin never lived with Ms Sayers.
b)There had been no cohabitation.
c)Mr Gilpin had had no children with Ms Sayers.
d)Comment was made by Mr Gilpin of, “Can you keep her out?”
e)Ms Sayers was maintaining the Property B property.
In August 2014 the Trustee in Bankruptcy entered into negotiations with Ms Sayers on the basis that Ms Sayers pay to the Trustee in Bankruptcy $350,000 and the Property B property would be transferred to Ms Sayers as Mr Gilpin had told Ms Sayers that she is entitled to half of the Property B property.
On 3 September 2014 the Trustee in Bankruptcy met with Mr Gilpin and his friend and the typed diary notes record the following comments:-
a)The friendship started in 1992.
b)Ms Sayers was living in the (omitted) in (omitted), then in 1997 moved into Housing Commission at (omitted), then moved into another house in (omitted) and in 1999, returned to Housing Commission at (omitted) and then to (omitted) until 2001.
c)The house in (omitted) burnt down in 2001 and Ms Sayers moved into a hotel at (omitted) for two months.
d)Ms Sayers then went to jail for dealing in heroin and upon her release, moved in with Mr Gilpin for two weeks; which is the only time Mr Gilpin and Ms Sayers cohabitated.
e)Ms Sayers moved to (omitted) in 2003 and for two years Mr Gilpin paid her rent of $280 per week.
f)Mr Gilpin would sleep with Ms Sayers during the day and had services from her but never slept there overnight.
g)In 2005 Mr Gilpin purchased a unit at (omitted) for Ms Sayers and the children to live in.
h)Mr Gilpin never slept there but looked after the children and had sex with Ms Sayers on a regular basis.
i)In 2007 the older boy went to live with his father.
j)In 2007 Ms Sayers was concerned as to who the younger child was hanging around with and Mr Gilpin purchased a unit at Property S which the mother and younger child moved into whilst Mr Gilpin remained in Sydney.
k)In 2009 Mr Gilpin purchased the Property B property which Ms Sayers and the younger child moved into whilst Mr Gilpin remained in Sydney.
l)Mr Gilpin stated that throughout the time of their association:-
i)Ms Sayers never paid rent or made any financial contributions.
ii)Ms Sayers’ only form of income was Centrelink.
iii)Ms Sayers had continually worked as a call girl/prostitute.
iv)Ms Sayers had sold and used heroin until 2007 and was sent to rehab a couple of times paid for by Mr Gilpin.
v)Ms Sayers had multiple relationships with other men.
vi)Ms Sayers had briefly worked as a (omitted).
vii)Mr Gilpin had met Ms R (Ms Sayers’ mother) a number of times when he returned the younger child to the grandmother and that Ms R never thought that Ms Sayers was Ms Sayers’ husband.
viii)Ms Sayers has never introduced Ms Sayers as his wife.
m)As to Mr Gilpin’s living arrangements, from 1992 to 1997 Mr Gilpin slept at the (business omitted) on the ground.
n)In 1997 Mr Gilpin moved into a unit in (omitted).
o)In 1998 Mr Gilpin moved into a property at (omitted).
p)In 2013 Mr Gilpin sold the unit and moved into (omitted) and stayed there until 2014 when the Trustee moved him out.
q)Mr Gilpin is now living in (omitted).
r)Mr Gilpin advised that Ms Sayers had a boyfriend from 1992 to 1999 (Mr J) who is Y’s father and that Ms Sayers created a myth to suggest that Y was his son.
s)Mr J used heroin and was in and out of jail during his relationship with Ms Sayers.
t)Mr Gilpin stated that Ms Sayers has taken advantage of him over the years in every way and has worked as a call girl and a small time thief from the local retail stores and that Ms Sayers took advantage of his kindness and love towards her.
u)Mr Gilpin promised to give her a new house although they never lived together and despite her having no claim.
v)Mr Gilpin said that Ms Sayers continues to be difficult and demanding.
w)Mr Gilpin bought her a new car in 2011 which has now been repossessed.
x)Mr Gilpin told the Trustee and “made it clear” that he would lie in Court to ensure his creditors do not benefit from his bankrupt estate and that he would much rather give his equity to Ms Sayers instead of the creditors.
During September 2014 negotiations between the Trustee in Bankruptcy and Ms Sayers continued.
On 24 September 2014 Ms Sayers sent an email to the Trustee in Bankruptcy which contained the following comments:-
a)“I was not a prostitute.”
b)“As far as Mr J being Y’s father, well, it might be possible. It is much more likely not true. Those years you said I was with Mr J, well, most of those years he was in jail.”
c)“Mr Gilpin was committed from the start to having a family with me, loving X and Y. I just need to stay off drugs. I think if Mr Gilpin was with me here, even when I was sick and very ugly, he might have stayed with me. He was in Sydney alone and lonely. I don’t blame him, really, because he is a human and a man, and I was unappealing and miles away. Although he came all the time to stay, it seemed he was never going to finish with business there.”
On 25 September 2014 Mr Gilpin telephoned the Trustee in Bankruptcy and the file note records:-
a)Mr Gilpin withdraws his claim that Ms Sayers was a prostitute and that this was claim made by his interpreter.
b)Mr Gilpin said that if he was brought to Court, he would deny the contents of the last discussion and state that he slept with Ms Sayers through the entire time of their association and she was his wife.
c)Mr Gilpin said he would lie in Court to ensure the banks got nothing and Ms Sayers got everything.

The law

I will now turn to the law.
The Court has, pursuant to section 90RD(1) Family Law Act 1975, the power to make a declaration about the existence of a de facto relationship.
Section 90RD(2) states that in addition to declaring the existence of a de facto relationship, the Court can make a declaration as to the period of the relationship and when the relationship ended.
The effect of any declaration according to section 90RE(1) has the effect of being a judgment of the Court.

Is there a de facto relationship and if so for how long?

In this matter I am being asked to consider making one of two declarations:-
a)Firstly, whether a de facto relationship existed; and
b)Secondly if a de facto relationship existed, the period of existence (with Ms Sayers and Ms Sayers stating it was a 17 year relationship commencing in 1993 and ending in 2010).
I will firstly address the issue as to whether a de facto relationship existed between Ms Sayers and Mr Gilpin.
The meaning of the term “de facto relationship” is contained in section 4AA Family Law Act 1975.
Section 4AA(1)(c) states that “A person is in a de facto relationship with another person if, having regard to all of the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis”.
There is no formula as to what constitutes a genuine domestic basis and the danger in trying to have a set of rules to follow is addressed by Powell J in the leading authority of Roy & Sturgeon (1986) 11 FLR, whereas at page 274, his Honour states:-
“With respect, it seems to me to attempt to dissect the phrase ‘living together as a husband and wife on a bona fide basis domestic basis’ into discrete elements, and then to test the facts of a particular case by reference to a test of priori rules in order to establish whether a particular element is or is not present, is to ignore the fact that just as human personalities and needs vary remarkably, so too were the various aspects of their relationship, which leads one to hold that a man and a woman living together as husband and wife on a bona fide domestic, which will vary from case to case.”
Powell J further states on page 275:-
“The application of the basis definition to the myriad facets of private personal relationships between men and women will inevitably be a matter of degree and proportion. The attributes and circumstances of such relationships differ greatly, ranging from what is little more than a casual liaison to a continuing affectionate companionship to a long merging of lives and resources. Moreover, the nature and quality of a particular relationship may change and develop over time, making it sometimes very difficult to pinpoint a time when the relationship should assume a legal significance.”
The circumstances that may be taken into account in determining if parties are in a de facto relationship are contained in section 4AA(2) and 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, 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 aspect of the relationship.

This is by no means an exhaustive list, nor is any particular finding in relation to any circumstance necessary in determining whether persons have been in a de facto relationship. (Section 4AA(3)).
The onus of proving the existence of the de facto relationship on the balance of probability rests on the parties seeking the declaration as to the existence of the de facto relationship.
As stated by Dutney J in S & B (No.2) (2004) 32 Fam LR 429 at [49] and [50]:-
“In a de facto situation, it is the party asserting the relationship that must prove cohabitation of the required quality…. The party asserting a de facto relationship must prove the ‘positive aspects’ of the relationship rather than the party denying it being required to prove the negative.”
In this matter, unusually, it is both parties of the alleged de facto relationship which carry this onus, as it is the Trustee in Bankruptcy who disputes the existence of any relationship.
I will now turn to each of the relevant circumstances contained in section 4AA(2) to determine whether there is proof of Ms Sayers and Mr Gilpin living together on a genuine domestic basis in a de facto relationship.

The duration of the relationship

Ms Sayers stated initially to the Trustee in Bankruptcy that it was a 20 year relationship from 1990 to 2010 although in subsequently filed Court documents the date is from 1993 to 2010.
Unfortunately, Mr Gilpin was silent as to the date of the commencement of the relationship, stating in his affidavit that the parties had been together for “many years”.
The only independent evidence is from Ms Sayers’ mother, Ms R, who deposes “I have been aware for many years that Ms Sayers and Mr Gilpin were living as a couple”.
Ms Sayers and Mr Gilpin failed to provide to the Court:-
a)Any affidavits by friends or other family members to support that the parties were together from 1993 to 2010; or
b)Any Centrelink documents or other documents as to when the parties were living together.

Conclusion on duration

Therefore the only conclusion that can be reached from this evidence is that the parties knew each other and were in some type of relationship over a long period of time.
I therefore find then that this circumstance does not assist in determining whether the parties were in a de facto relationship.

Nature and extent of their common residence

As with the dates of cohabitation the evidence by Ms Sayers and Mr Gilpin as to the actual time the parties lived together differs greatly.
Ms Sayers provides the following timeline:-
a)1993 to 2003 Mr Gilpin was living in a flat attached to the (business omitted) and Ms Sayers was living in a housing commission home with Ms Sayers spending three to four nights at the flat.
b)2003 Ms Sayers and Mr Gilpin were living together in (omitted).
c)2003 to 2005 Ms Sayers and Mr Gilpin were living together in a rented unit at (omitted).
d)September 2005 Mr Gilpin purchased a unit in his name in the same complex and Ms Sayers and Mr Gilpin moved into that property.
e)2007 Mr Gilpin purchased a unit in his name at Property S which Ms Sayers moved into. Ms Sayers states that Mr Gilpin visited her often at Property S and that Ms Sayers visited Mr Gilpin often in Sydney.
f)2010 Mr Gilpin purchased a house property in his name at Property B where Mr Gilpin and Ms Sayers continued in their long term relationship although no particulars were given as to the frequency of visits.
g)In 2010 the parties separated.
The only corroborating evidence provided by Ms Sayers is the affidavit of her mother, aspects of which contradicts Ms Sayers’ such as “Mr Gilpin worked and lived in a (business omitted) in (omitted), Sydney and Ms Sayers shared a flat with him. And I have stayed at Ms Sayers’s home at Property B with Ms Sayers and Mr Gilpin stood by Ms Sayers and supported her.”
According to Mr Gilpin the timeline is as follows:-
a)Ms Sayers lived with Mr Gilpin at the (business omitted) in (omitted), although there was no mention to the number of years of cohabitation.
b)Ms Sayers then lived with Mr Gilpin at (omitted), but, again, no details as to when.
c)Mr Gilpin makes no reference to the parties seeing each other when Ms Sayers moved to Property S.
d)In respect to the Property B property, Mr Gilpin deposes to Ms Sayers living at the property with Mr Gilpin continuing to travel back and forth between Property B and Sydney, and staying with Ms Sayers in Property B.
Mr Gilpin is silent on the issue of whether Ms Sayers visited Mr Gilpin in Sydney.
No corroborating evidence was supplied by Mr Gilpin.

Conclusion on common residence

I find it concerning that two parties who claim to be in a long term de facto relationship could be so far apart in their evidence as to where and when they cohabited in a common residence.
The only true common ground is that at some point in time the parties lived together in (omitted) which, according to Ms Sayers, was between February and July 2003; some five to six months.
Otherwise the evidence of Ms Sayers and Mr Gilpin conflicts examples of which are as follows:-
a)Ms Sayers states that she did not live with Mr Gilpin at the (business omitted), staying over three to four nights while living in Housing Commission at (omitted), whereas Mr Gilpin deposes to them living together at the (business omitted).
b)Mr Gilpin makes no mention of either (omitted) property.
c)Mr Gilpin makes no mention of seeing Ms Sayers at the Property S property or Ms Sayers going to Sydney to see Mr Gilpin.
d)The parties’ evidence as to Mr Gilpin travelling to see Ms Sayers at the Property B property is consistent, but the frequency and/or length of the visits are an unknown.
e)Mr Gilpin does not depose to Ms Sayers travelling to Sydney to spend time with Mr Gilpin.
Both Ms Sayers and Mr Gilpin failed to provide any corroborating evidence to support their respective positions; no titles office searches, no lease documents - nothing.
In the absence of any supporting evidence and considering the contradicting versions, the only finding open to the Court is that the parties occupied a common residence in 2003 at (omitted).
This circumstance, therefore, does not assist the Court in determining whether there existed a de facto relationship between Ms Sayers and Mr Gilpin, as firstly it was a short period of cohabitation (less than two years) and occurred prior to the Court receiving jurisdiction to determine de facto matters.

Whether a sexual relationship exists

Ms Sayers’ affidavit is silent on the issue of whether the parties were in a sexual relationship apart from referring to “our son” who was born in 1996.
However, in her lengthy email to the Trustee dated 24 September 2014, there are several indirect references which hint at a sexual relationship, such as:-
a)“Mr Gilpin has no lack of self-esteem, especially where women are concerned. In fact, he is extremely confident in his impression of himself as a fabulous lover, believing himself gifted in both his methods and equipment.”
b)“Mr Gilpin was committed from the start to having a family with me.”
Mr Gilpin deposes to Ms Sayers as “We were in love. I considered her my partner.”

Conclusion on sexual relationship

I accept that there was a sexual relationship between the parties.
Therefore I find that this is a circumstance to be considered in determining whether there was a de facto relationship between the parties.

Degree of financial dependence or interdependence and any arrangement for financial support between them

The evidence in respect to this circumstance is severely lacking.
Ms Sayers’ affidavit is silent on this issue as is that of Mr Gilpin.
The only evidence is a sweeping statement by Ms Sayers’ mother, Ms R where she deposes “Mr Gilpin stood by Ms Sayers and supported her”.

Conclusion on degree of financial dependence

In the absence of any evidence by Mr Gilpin or Ms Sayers and as there is no corroborating evidence as to the financial dependence or support (such as bank statements or Centrelink documents) then I am unable to make a positive finding in respect to this circumstance.
As such, the circumstance does not support or assist in determining the existence of a de facto relationship.

The ownership, use and acquisition of their property

Ms Sayers deposes to all real properties during the relationship being acquired by Mr Gilpin in his name only, including the current property at Property B.
This is confirmed by Mr Gilpin in his affidavit.

Conclusion on ownership, use and acquisition

Whilst I will refer to Ms Sayers’ indirect financial contributions to real property later in the judgment, there is nothing in the evidence to suggest that Ms Sayers financially contributed to the acquisition of the real properties.
As such, this is a circumstance which does not support the existence of a de facto relationship.

Degree of mutual commitment to a shared life

Ms Sayers’ affidavit is mute on the issue of commitment to a shared life.
There is no reference to interests shared together, holidays together, mutual friends or mutual goals.
There is no evidence from friends as to their mutual commitment.
The highest Ms Sayers takes it is a reference in her affidavit after Mr Gilpin broke up with her in 2010 of “Mr Gilpin promises to me that he would transfer ownership of the Property B property to me”.
This is reiterated in the email of Ms Sayers to the Trustee in Bankruptcy on 24 September 2014 where she states “His promises to us would have been kept had he not been a terrible businessman”.
I find that these statements do not amount so much to a mutual commitment but a promise into the future made by Mr Gilpin to Ms Sayers; a promise which is no longer able to be fulfilled due to Mr Gilpin’s bankruptcy.
Mr Gilpin, as is Ms Sayers, is also mute on the issue of mutual commitment, but like Ms Sayers, Mr Gilpin speaks of his broken promise to Ms Sayers stating “I told her I would give her the house at Property B after I refinanced the house”.
In talking about his bankruptcy Mr Gilpin mentioned that “Ms Sayers thought I had plenty of money”.

Conclusion on mutual commitment to a shared life

I find that a promise as to future security does not a mutual commitment make.
It is a shame that there were no affidavits by friends or family that could support their claim of a mutual commitment.
Unfortunately, Ms R’s affidavit is too vague to be of assistance with the statement “Months went by when I did not see Ms Sayers. Nevertheless throughout the period from mid-1990s until about 2010 I am aware and always considered that Ms Sayers and Mr Gilpin were a couple living together in a relationship and raising the children, Y and X” lacking specifics or timelines.
I therefore find that this is a circumstance that does little to support the existence of a de facto relationship.

Whether the relationship was registered under a prescribed law

This circumstance has no application in this matter.

The care and support for children

It is not disputed that at the time that Ms Sayers and Mr Gilpin commenced their relationship that Ms Sayers had a child, X, from a previous relationship.
Ms Sayers deposes to X now being 25 years old, having been four when Ms Sayers first met Mr Gilpin.
When Ms Sayers was incarcerated, X was cared for by his father and Mr Gilpin visited her in prison with the boys.
Mr Gilpin refers to treating X as his own child and having a close relationship with him and seeing him all the time.
Ms R deposes to Mr Gilpin treating X as his son.
But curiously the one person who could have provided corroborating evidence as to this circumstance failed to provide an affidavit.
Why X, who is now an adult, did not provide an affidavit was not explained by Ms Sayers or Mr Gilpin.
Now, I will turn to the second child, Y, where there lies a bizarre and unexplained twist.
The birth certificate for Y was never produced so it is a complete unknown as to who, if anyone, is listed as the father of the child.
At first glance of Ms Sayers’ evidence you would be forgiven if you believed that Y was Mr Gilpin’s biological son as Ms Sayers deposes to “Our son being born on (omitted) 1996”.
However, Y was not cared for by Mr Gilpin during Ms Sayers’ term of imprisonment for 18 months but by X’s biological father.
Unfortunately, no affidavit has been provided by X’s father.
Mr Gilpin is not so strong in his evidence as to Y being his biological son stating “I have always considered that Y is my son and I have always treated Y as my own child and I still have a close relationship with X”.
The last time Mr Gilpin spent time with Y was in June 2014.
Ms R does little to clarify the true position of who was the biological father of Y stating that “Y was born after Ms Sayers and Mr Gilpin were in a relationship”.
But the truthfulness of the situation was revealed by Ms Sayers in her email to the Trustee in Bankruptcy in September 2014 where Ms Sayers writes in respect to an acquaintance of Ms Sayers’ named Mr J “As far as Mr J being Y’s father, well, it might be possible. It is much more likely not true. Mr Gilpin was committed from the start to having a family with me, loving X and Y”.
Y, now an adult, like X did not provide an affidavit in support of this matter.

Conclusion as to care and support for children

The highest I can therefore take the evidence is that Mr Gilpin has had and has a strong relationship with Ms Sayers’ children.
I find that this circumstance in itself does not assist in determining the existence of a de facto relationship.

Reputation and public aspects of the relationship

There was nothing in Ms Sayers’ or Mr Gilpin’s evidence which refers to the reputation or public aspects of their relationship therefore this circumstance does not support the existence of a de facto relationship.

Other circumstances

As the circumstances set out in section 4AA(2) are not an exhaustive list there are some other circumstances that need to be addressed.

The non-financial contributions made by Ms Sayers to the relationship

Ms Sayers deposes that “Throughout our relationship I provided direct non-financial contributions by assisting Mr Gilpin in the (business omitted) in (omitted) and I carried out (omitted) duties”.
I find that I am unable to consider these contributions in the context of being a circumstance surrounding the existence of a de facto relationship as Ms Sayers deposed to the parties not living together during this time.
Ms Sayers then refers to “Throughout our relationship I provided other non-financial contributions by way of day-to-day living chores such as cooking, washing, preparing meals, housework, gardening and other activities of that nature”.
Mr Gilpin fails to make any comments as to Ms Sayers’ non-financial contributions.
At the highest the only conclusion that can be taken from the evidence is that during the relationship Ms Sayers did the domestic chores.
Whilst this circumstance may assist in supporting other circumstances as to the existence of a de facto relationship it does not in itself give rise to a conclusion that a de facto relationship existed.

The financial and non-financial contributions made by Ms Sayers to the real property

The evidence given by Ms Sayers and Mr Gilpin differs greatly in respect to Ms Sayers’ contributions to Mr Gilpin’s real property.
In her affidavit Ms Sayers refers to the work carried out on the Property S property “Prior to the sale of that property I spent approximately $5000 of my own funds in renovating the interior: carpet, new toilet, repairs to benches and cupboards in the kitchen and also external work including laying turf and other landscaping”.
Ms Sayers did not produce any independent evidence to support this financial contribution such as bank statements, building accounts or receipts.
In Mr Gilpin’s affidavit no reference is made to Ms Sayers carrying out any work or renovation on the Property S property although reference is made to work carried out on the Property B property:-
“Ms Sayers has arranged for workers to come to the Property B property and fix the roof of the studio, gutters and pipes, walls and leaking floor. Ms Sayers paid for this work to be carried out. Ms Sayers bought a water tank and pump for the house and also a stove and hood and small things like smoke alarms. Ms Sayers paid for these things. I also know that Ms Sayers did much work in the gardens removing old soil and rubbish, deliver and lay turf, moving rocks and tiles, painted in the house and new carpet and cupboard doors”.
I find that due to the conflicting evidence I am unable to make any finding as to the nature or extent of contributions made by Ms Sayers to any real property owned by Mr Gilpin.
There is no corroborating evidence to support that Ms Sayers has made any contributions.
In any event, if a finding was made it would be of little assistance as such contributions were made at a time when the parties were not living together.
While such contributions made give rise to an equitable interest in the property for Ms Sayers this circumstance does not assist the Court in determining whether a de facto relationship existed between Ms Sayers and Mr Gilpin.

The statements made by Mr Gilpin to the Trustee

Before making my final findings as to whether a de facto relationship existed between Ms Sayers and Mr Gilpin, comment must be made as to the phone messages and other notes attached to the affidavit of Mr N for the Trustee in Bankruptcy in respect to the meetings and telephone calls between the Trustee in Bankruptcy and Mr Gilpin.
Ms Sayers’ counsel objected to the inclusion of Mr N’s affidavit into evidence due to concerns that as the father has not addressed the information contained in Mr N’s affidavit that the Court would take as a fact the comments contained in the phone notes and other messages.
I allowed the affidavit of Mr N to remain in evidence.
I have taken great lengths to ensure when determining the existence of a de facto relationship not to make reference to or take into account the comments made by Mr Gilpin to the Trustee in Bankruptcy.
However, the conflict of information and the admissions by Mr Gilpin of lying to the Trustee in Bankruptcy such as “When I was first made bankrupt I thought I must try to get what I could for me. I didn’t tell them about Ms Sayers because I was scared it was one more problem, one more cost. Then later I realised I must tell the truth because Ms Sayers is telling the truth” raises concerns as to the credibility of Mr Gilpin.

Credibility of Ms Sayers

Also, the credibility of Ms Sayers is questionable given the differing information in her email to the Trustee in Bankruptcy in September 2014 which was not addressed in her affidavit sworn on 15 October 2014 compared to that of the evidence that Ms Sayers chose to put before the Court.

Overall conclusion as to existence of a de facto relationship

I find that an investigation of the circumstances did little more than uncover two persons:-
a)Who were at times involved in a sexual relationship;
b)Where one was fond of the other’s children with the parentage of the younger child being an unknown;
c)Where from time to time one party did the domestic chores;
d)Where one party provided housing to the other although not sharing that housing; and
e)Where one promised that that housing could be retained by the other party.
I find taking into account all of the findings on the circumstances that there is insufficient evidence before the Court to make a finding that Ms Sayers and Mr Gilpin were in a de facto relationship as the evidence does not support that they lived together as a couple on a genuine domestic basis.
I therefore declare in accordance with section 90RD that a de facto relationship did not exist between Ms Sayers and Mr Gilpin for the purposes of Part VIIIAB Division 1 Family Law Act 1975.
As a de facto relationship is declared not to exist then the issue of the length of the de facto relationship does not require determination.

I certify that the preceding one hundred and sixty five (165) paragraphs are a true copy of the reasons for judgment of Judge L. Turner

Date: 21 December 2015

[2015] FCCA 3402

27 November 2015

Key Legal Topics

Areas of Law

Family Law

Statutory Interpretation

Legal Concepts

Jurisdiction

Statutory Construction

Res Judicata