Senfl and Antinoni & Anor

[2019] FamCA 90

FAMILY COURT OF AUSTRALIA

SENFL & ANTINONI AND ANOR [2019] FamCA 90

FAMILY LAW – DE FACTO RELATIONSHIPS – Section 90RD – where the parties dispute the date that the de facto relationship ended – Where the respondent’s view is accepted and the applicant’s view is rejected – Where the parties led an unusual life and the evidence is extremely vague but the court is not satisfied that subsequent to February 2014 the parties lived together as a couple on a genuine domestic basis – Declaration made.

FAMILY LAW – DE FACTO RELATIONSHIPS – Section 44(6) – where the applicant pleads in the alternative that if she is unsuccessful on her application as to the date upon which the de facto relationship ended, she be granted leave to bring an application for property settlement and spousal maintenance out of time – where the evidence is sparse and largely irrelevant to that issue – where the court infers from the applicant’s evidence in chief and that arising from cross-examination, her loss of a spousal maintenance order and property settlement would cause hardship – Where the merits of the applicant’s claim are questionable but there is sufficient evidence to justify a conclusion that some form of order under Part VII AB may be granted – Leave granted.

Family Law Act 1975 (Cth)

Whitford and Whitford (1979) FLC 90-612

APPLICANT: Ms Senfl

RESPONDENT: Mr Antinoni

INTERVENOR: The Trustee of the Property of Mr Antinoni (a Bankrupt)

FILE NUMBER: DGC 2121 of 2016

DATE DELIVERED: 26 February 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 18 February 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Combes

SOLICITOR FOR THE APPLICANT: M & K Lawyers Group Pty Ltd

THE RESPONDENT: In Person

Orders

1. Pursuant to s 44(6) of the Family Law Act 1975 (Cth) (“the Act”), the applicant has leave to bring a claim under Part VIII AB of the Act.

2. Pursuant to s 90RD of the Act IT IS DECLARED that the de facto relationship between the applicant and the respondent ended in February 2014.

3. That by 1 April 2019, the applicant file and serve an amended initiating application setting out with particularity the final orders she proposes to seek together with what if any interim orders she proposes should be dealt with in the Judicial Duty List and such application be served upon all other parties.

4. That the respondent file and serve an amended response to the applicant’s amended application by no later than 15 April 2019.

5. That the applicant serve a copy of these orders and the reasons for judgment this day upon the other parties to these proceedings who are excused from attendance.

6. That all extant applications be otherwise adjourned to a Registrar’s Directions hearing at 9.30am on 17 April 2019.

7. That the application in a case filed 13 December 2018 and the response thereto filed 20 December 2018 are otherwise dismissed.

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 Senfl & Antinoni and Anor 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 MELBOURNE

FILE NUMBER: DGC 2121 of 2016

Ms Senfl

Applicant

And

Mr Antinoni

Respondent

REASONS FOR JUDGMENT

1. It is not controversial that Ms Senfl (“the applicant”) and Mr Antinoni (“the respondent”) were in a de facto relationship until about February 2014.  It is controversial whether their de facto relationship ended at that time or over two years later in April 2016. 

2. The controversial issue affects the jurisdiction of the court to make orders between the parties including the alteration of property interests and spousal maintenance.  The applicant claims orders for both.

3. There is a second issue in this case.  If the respondent is correct about the date, the applicant’s application for the orders just mentioned is out of time because she must bring any such application for relief within two years of the breakdown of the de facto relationship.  If the applicant is correct about the date, her application is within time.

4. Despite the respondent making clear by his response filed by his then solicitors on 22 September 2016 that the “parties finally separated in February 2014”, neither party seemed to raise how the issue affected the proceedings (or would be resolved) when it was before the Federal Circuit Court (and before a registrar of this court on an interlocutory hearing) until the applicant pressed for a determination of her spousal maintenance claim and a claim for litigation funding. 

5. To add to the complexities, the respondent executed a debtor’s petition in late September 2018 which petition was accepted by a trustee in bankruptcy on 1 October 2018.  The trustee was excused from the present determination as also was a third party whose details are not immediately relevant. 

6. Suffice to say, with his bankrupt estate, the respondent was without the benefit of legal representation at the hearing to determine the date of the ending of the de facto relationship.  He says his bankrupt estate has a large shortfall, something which the applicant seems to deny. 

7. The position of the applicant as a litigant has not been made easy either by a diagnosis of cancer for which she has been (and continues to be) treated by chemotherapy.

8. The absence of a simple picture of how the parties lived together until February 2014 compounded the fact-finding determination.  From the applicant’s perspective, after February 2014, little, if anything, changed.  From the respondent’s perspective, there is some truth in what the applicant says but he maintains that his generosity and his time spent with the applicant was not indicative of a de facto relationship.

9. The fact-finding exercise here requires the applicant to prove her assertions and the determination I have made has been on the standard of proof of the balance of probabilities.

10. I was conscious of the applicant’s medical condition but it was only on one occasion that she attributed her confusion to her recent medical treatment.  As a witness, she was confident, assertive and at time, loquacious.  The respondent was a much more precise historian whose testing of the applicant’s evidence was respectful, thoughtful and calmly undertaken.  As a witness, he was reliable.  His cross-examination of the applicant covered a number of matters which had been ignored by the applicant in her evidence by affidavit.  The respondent’s cross-examination provided a much better context for what happened in February 2014.

11. One of the two versions of these parties cannot be correct and I have looked for corroborating sources which generally were not provided by the parties.  That however was, to a degree, resolved when the applicant accused the respondent of severe family violence.  She alleged he had pleaded guilty to criminal charges.  When the subpoena record was referred to, the respondent was found to be correct rather than the applicant.  The applicant’s evidence was just wrong.  That in turn led to whether the same police records assisted with the determination about the date upon which the de facto relationship ended.  I made those documents available to the applicant’s counsel.

12. The applicant in her evidence in chief, referred to a police statement which may or may not simply be a reflection of the views of the relevant police or alternatively, it amounted to a recitation of what one of the parties told them.  There is no doubt that that document produced by the applicant asserted that the de facto relationship had come to an end around February 2014.  The applicant asserted that the police officer had wrongly understood her.  However, the same date reference appears in the records of another police officer.  Whilst there is an equally inconsistent view held in the police records to those two views, I consider when the evidence is balanced, the record is probably of sufficient weight to say that the police understood that by April 2016, the parties’ relationship had ended two years before.  The police may have obtained that information from the respondent but it was the applicant who was the main complainant to the police and although she said she had subsequently tried to correct the police position, subpoenaed records did not show any such attempt.  In addition, she produced no similar evidence of her attempt.

13. There is also no doubt that by March 2016, so at least one month before the April 2016 police intervention, there were financial negotiations between the parties including some in writing.  It is clear that the respondent approached the applicant with a written proposal and included in it, a reference to the ending of the relationship in February 2014.  Again, that view might not have been then accepted by the applicant but it shows that at least the respondent was consistent in his view.

14. In a final address in the present proceeding, counsel for the applicant submitted that when one examined the evidence, nothing had changed in the way the parties conducted their lives subsequent to February 2014.  Prior to February 2014, the applicant (and her daughter) were financially dependent upon the respondent and subsequent to February 2014, he continued to assist.  Prior to February 2014, the parties had attended theatres and family events and subsequent to that critical date, the evidence shows that there were similar events.  However, as will be seen below, the overall picture creates an impression that the respondent was a generous man who probably obtained some benefits from a relationship with the applicant but that overall, the de facto relationship had ended in February 2014.  The respondent attended social and family events of the applicant and even celebrated her birthday in this relevant period.  He attended a funeral of the applicant’s relative by travelling to Adelaide but none of those satisfy me to the requisite standard that after February 2014 there was a de facto relationship within the meaning of the Family Law Act 1975 (Cth) (“the Act”).

15. In examining the evidence, wherever there is a dispute about a particular fact, I have generally preferred the evidence of the respondent as his description seemed more historically correct.  He was precise about certain events such as where the parties had been and denied the assertions of the applicant about sleeping arrangements, sexual activity and eating meals.  His version seems more plausible.

16. I begin by examining the legal issues.  Section 4AA relevantly provides that a person is in a de facto relationship with another if:

    Having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

    The word “genuine” adds little to the phrase as the question of whether or not a person meets that definition is one of perspective.  There must be some evidence of “coupledom” and some form of domestic arrangement. 

17. The applicant now seeks a declaration under s 90RD of the Act which empowers the court to make a declaration relevantly as to when the de facto relationship “ended”.

18. Section 4 of the Act also provides a definition of “de facto financial cause”. The applicant seeks such relief and importantly, in that definition, there is a reference to proceedings “after the breakdown” of the de facto relationship. It is not necessary here, nor was it argued, whether there is a difference between the “breakdown” of a de facto relationship and one which has ended. However, in the pursuit of the answer to the issue raised by the applicant, I have looked for evidence to establish that there was permanence about the ending of the relationship. It is the relationship referred to in s 4AA(1) that is important.

19. Section 4AA(4) provides that in determining whether a de facto relationship “exists”, the court is entitled to have regard to such matters, and to attach such weight to any such matter, as may be appropriate.  Whilst that reference is limited to the existence of a de facto relationship, it must equally apply to the ending of that existing relationship.

20. To the extent there is confusion still about whether the applicant satisfies the definition in s 4AA(1), the Act then provides (s 4AA(2)) some assistance by reference to a number of factors said to assist in working out if persons have a “relationship as a couple”. Those include:

    (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.

    Each of those matters needs to considered here having regard to the way each party conducted the case.  That is because the evidence in chief particularly of the applicant, was largely vague and unhelpful.  Things became a little clearer during her cross-examination.

21. The applicant asserted that the “relationship” (as distinct from the de facto relationship) came to an end in March/April 2016.  She must be right about that because what occurred at the time and then subsequently, she issued proceedings in July 2016.  The question however is whether it was a de facto relationship that came to an end rather than the nature of what the parties were doing.

22. The evidence of the applicant went back to the middle of 2014 and she said that the respondent commenced renovations on a property that he had purchased in his daughter’s name in C Street, Suburb B.  She said he started spending “some time” at C Street.  This portrayal is not an accurate reflection of what was happening at the time.  In her second affidavit, the applicant denied a statement by the respondent that he had moved into C Street.  She said at no stage did he ever “move into” that property.  She said that he was spending one or two nights there on an “ad hoc” basis to manage renovations that were then taking place but when he did, he would pack an overnight bag and his belongings would otherwise remain at what she described as the parties’ home.  What alerts me to the fact that this description, as the starting point of problems in the relationship being inaccurate, is the evidence of the respondent.  He said that he moved into C Street, in January 2014 after problems on the relationship had worsened.  The applicant had said that around the middle of 2014, they had begun to have some relationship “issues” around finances.  She said they continued in the relationship with the respondent spending two to three nights per week at D Street where they were then living.  This vague reference to the number of nights must indicate that the respondent was spending more time at places other than D Street and his evidence was that it was only at C Street.

23. Obviously, people can live apart and continue a de facto relationship.  However, in her oral evidence, the applicant complained about the respondent’s “other life”.  When the respondent asked her about that, she said that he had had three residences, he went on overseas trips by himself, had multiple addresses, went to Europe without her knowledge (and later added Asia to that) and she said that whilst he did not live permanently at C Street, she visited him there.

24. The reference to Asia was a good example of the unusual nature of these parties’ relationship.  One particular night they met for dinner in Suburb E.  Each of them had driven there separately by car.  The applicant returned to where she was living at the end of the dinner but it would appear that the respondent did not go home with her.  When she contacted him the following day, she found out that he was in Asia but he had never mentioned that he was going there at the dinner the night before.  One must question whether that was simply a communication break-down or indeed, as I consider more probable, an indication of the separate lives that the parties were living.  It is not indicative of living together as a couple on a domestic basis.

25. The Asia example was not one that was isolated according to the applicant.  She mentioned Europe.  She then volunteered that she had been ringing the respondent and he told her to stop harassing him.  That is not indicative of some form of de facto relationship where the parties have certainty of the nature of their relationship.  It is hardly indicative of a mutual commitment to a shared life. 

26. In this same period, the applicant said that they were maintaining a joint household.  I am not entirely sure what that expression means but there is no doubt that the main source of rent came from the respondent.

27. It was the respondent who set the scene for the problems within the relationship to which the applicant had referred.  He said that in December 2013, the applicant travelled to Africa (her place of birth) with her daughter and she spent Christmas there with her family.  He said that whilst she was in Africa she was involved with her cousin who had some financial difficulties.  The respondent put to her a number of allegations about how he provided assistance to the cousin but the arrangements all went wrong and he was sued by someone in Africa.  In his evidence, he said that the debt is still outstanding and now part of his bankruptcy.  When he questioned the applicant about it, she simply said that no-one had sued her.  Her answers were evasive in circumstances where the respondent was specifically asking her to address how he had become embroiled in assisting her relative.  By profession, the respondent works in finance.  He has always been involved in finance projects.  Indeed, he said that the applicant was originally a client of his and had authorised him to manage her finances.  It was clear on the evidence that the respondent had the financial wherewithal and as such, his explanation of why he was being sued and not the applicant, makes sense.

28. There was no doubt that the applicant’s cousin had financial problems and the applicant used the expression that “we agreed to bail them out” as part of her evidence.  It seems that the respondent borrowed $85,000 and that debt has not been repaid in full.  In his evidence, he made reference to the fact that recently, a lawyer from Africa had come to Australia to try and recover money from him.  All of this was waved aside by the applicant as having nothing to do with her.  I found her evasive on the issue.

29. I accept the applicant’s evidence that problems arose out of that trip and that the residential move in January 2014 which coincides with the conclusion of the African trip is more likely to have been as a result of the termination of the parties’ de facto relationship at that time.  That is not to say however that the respondent did not continue associating with the applicant and providing her with financial benefits.

30. The applicant endeavoured to say that it was not unusual for the parties not to be together “under the one roof” but the indication from the applicant as mentioned earlier about the Asian trip, the European trip and the variety of residences, all indicate that there was not a regular domestic arrangement between the parties. 

31. To confirm that in early 2014 there were problems in the relationship, it was the applicant’s own evidence in an unresponsive answer to a question put to her that from 2014, the respondent and a man named Mr F had “moved assets around”.  The clear inference from the statement was that the respondent was doing those activities to her detriment.  She accused him of staying under the one roof notwithstanding what he was doing and that he was not providing her with finances but setting up “blind trusts with friends, clients and associates”.  She said that she did not pursue him at that time however because of her grandmother’s death.

1. The grandmother’s death was not time dated but when the respondent asked the applicant why she understood he went to Adelaide (where the funeral took place) she responded by saying that he “supported her”.  He went to Adelaide on the day of the funeral and returned the same day. 

2. As to the state of their relationship as the year turned into 2015, it was hard to get a sense of the domesticity alleged by the applicant.  She said she prepared a meal “every night” but acknowledged there were times when the respondent did not come.  When I asked the respondent about such meals, he simply denied that he had been provided with them. 

3. It was suggested by the respondent to the applicant that on weekends, they went to theatres and out to dinner.  But, that is indicative of some form of social relationship and not necessarily of a de facto relationship.  It lacks a form of regular domesticity.

4. In May 2014, a property at D Street, Suburb G was leased.  Prior to D Street, the parties had led something of a peripatetic lifestyle with a number of properties including a property owned by the respondent at H Town. 

5. Who of the parties found D Street is controversial.  It is not controversial that the lease was executed only by the respondent.

6. Ms J is the estate agent who met the respondent when he inspected D Street.  She described him as being alone and he told her that he was looking to rent a property for himself and the applicant.  He said that the applicant was not attending the inspection because she was at H Town.  Ms J described having attended at D Street for some routine inspections where the respondent was “usually there” with the applicant.  This evidence was not challenged but it does not prove the existence of a de facto relationship.  There is no evidence as to how often these “routine inspections” took place and it is probably unsurprising that the respondent was there anyway as he was the only person who executed the lease.  No evidence was led as to how much the agent knew of the background of the parties but she said the applicant was the person she contacted for the scheduling of routine inspections.  The estate agent would have had an opportunity to see the nature of the relationship and how the parties were living but none of that was mentioned.  I find there is little probative value in the evidence.  Bearing in mind the timing of this lease, the respondent’s evidence has a ring of reality about it.  He said, and his evidence was not challenged, the applicant had trouble procuring a property because she owned two dogs.  He maintained that it was the applicant who found the property which was to be demolished for unit development and therefore a short term lease was available.  He said that short term lease was to be for 12 months.  Indeed, the lease ran for 18 months.

7. The respondent also said that he was asked to assist the applicant to get the lease because she could not procure a house by her own means.  He made reference to the fact that he thought she had the ability to pay because she was trading in diamonds at that stage.  Regardless of whether she could or could not obtain this property, the respondent did so.

8. As the lease at D Street was coming to an end, the respondent maintained that he was still living at C Street, Suburb B but as his daughter was returning to Australia, he leased a property at N Street, Suburb E.  His evidence, which I accept, is that rather than move into N Street, the applicant moved to her parents’ home but he allowed both the applicant and her daughter to stay at his resident occasionally because the daughter played hockey at her school which was nearby.  He said, and again was not challenged, on the “odd occasion” that the applicant wanted to stay at N Street, he moved to a hotel.  However, there must have been occasions when they were both at N Street because a violent incident occurred there that ultimately brought about the end of the relationship. 

9. The applicant said that N Street, which she acknowledged had been leased by the respondent, was temporary whilst they found another home.  There is no evidence of any searches for other property.  The applicant maintained that the respondent took their furniture from D Street in his four-wheel drive but later said that a removalist did all but the personal items.

10. The paucity of evidence from the applicant about D Street being a temporary residence and the unexplained reason why it was the respondent alone who leased both D Street and N Street, together with the unchallenged evidence of the respondent as I have described it above, all suggest that the respondent’s version is the more plausible.

11. Counsel for the applicant urged me to find that because the parties’ household contents had all been held in storage together it was indicative that the parties had continued their de facto relationship.  However, there was so little detail about why that occurred, I reject that submission.  It was the respondent again who leased the storage facility and there was no evidence from the daughter of the applicant as to why her items would be stored there as well.  The more plausible explanation was that the applicant had nowhere to go.  The respondent’s evidence about the applicant’s daughter being involved in sport and using the N Street property “occasionally” was not challenged.

12. I find in the circumstances that the property at D Street was acquired by the respondent but not for the purposes of it being a long term proposition.  There were no doubt social occasions there but I have no sense of the domestic nature of the relationship at that house. 

13. One good example is the fact that the applicant maintained that the respondent slept at D Street on at least 100 occasions.  The respondent dismissed that indicating that he did not sleep with the applicant at D Street.  In respect of their sexual encounters, the parties disagreed.  From the respondent’s perspective, the last such encounter was in the middle of 2013 and from the applicant’s perspective, it was February 2016.  She used the reference “sleeping together” so I am unsure what she meant.

14. Whilst the applicant pointed to the nature of the social interaction with the respondent which was not controversial, there were occasions to which he referred where things were not quite so clear.  At Christmas in 2014, he held a Christmas Eve function with his family and the applicant did not go to it.  When he asked her about her decision, her response was enlightening.  She said that the respondent had not wanted her to go.  As the respondent pressed the applicant for further detail, he confirmed that her daughter had gone with him and that she had requested that.  The applicant’s response as to why she had made that request was that she was “cooking” for the following day which was Christmas Day.  All of those pieces of evidence in context indicate that the relationship was not as it had been in earlier times.  The respondent asserted that they had not spent Christmas Day together in either 2014 or 2015 and in both cases, the applicant maintained that they had socialised with her family.  She was able to describe the attendance of her parents and the lunch that had occurred.  At least in respect of 2014, that evidence seems inconsistent with the applicant’s evidence about what had happened on 24 December.  I find that at least throughout 2014, the only example that was given would tend to suggest that the parties were not living together as a couple. 

15. The applicant pointed to the evidence of her cousin and to the fact that she came to Melbourne from Sydney in May 2015 and stayed at D Street.  She described the respondent entertaining them.  Whatever her impression may have been at that time, it must be seen as a snapshot because the applicant’s own evidence is that the respondent was only at D Street for two or three nights per week.  The applicant said that in 2015, she spent time at the H Town property but otherwise, I have no understanding of the nature and extent of the relationship. 

16. In early 2016, there was an unusual incident in that the respondent booked a helicopter ride for the Valentine’s Day weekend which commenced on 13 February.  There was a restaurant visit following the helicopter ride and she said that they slept together and then celebrated Valentine’s Day.  Against that, I have the evidence of the respondent that he did participate in these sorts of activities from time to time. 

17. What convinces me that the relationship had changed was that a number of questions were put to him about financial settlement.  It was put to him that all during 2015, there were “ongoing negotiations” about “a big picture” which ultimately led to the documents to which I have already referred that the respondent gave the applicant in 2016.  That question could have only come from instructions from the applicant and the respondent’s answer was that by this time he had no money left and he had had “enough”.  Another question that was put to the respondent was whether he had contemplated a “reconciliation” and his response was that he had contemplated that but that was at the time when he was leasing the N Street property and it was too small for a whole family.

18. In November 2015, it seems that the respondent’s car was repossessed and he came to the D Street property and had to be let in because his keys had been locked in the car.  The respondent asked the applicant whether she remembered the incident suggesting to her that he slept in the guestroom.  Somewhat surprisingly having regard to the nature of her evidence, the applicant indicated that she had no recollection.  The suggestion of the repossession of his car did not trigger her memory.  She did not deny that he slept in the guestroom.

19. Only a month later in December 2015, the applicant’s cousin invited both parties to stay with them in Sydney to celebrate the New Year.  The cousin described the parties as staying for a week and socialising as a couple.  They ate out, went shopping and spent time together and the applicant’s daughter was also present.  She said both parties occupied the same bedroom and she had not seen anything to indicate that they were anything other than a couple.  When the respondent cross-examined the cousin, she confirmed that he had left Sydney before the applicant had departed.  Whilst this evidence was undoubtedly led by the applicant to establish that there was a public reputation or appearance of a de facto relationship, it is equally consistent with a friendship type of relationship rather than a de facto relationship.  As I have already said, that evidence did not assist me much.

20. In 2015, the respondent assisted the applicant’s parents organising their finances.  She pointed to this as an indication of the nature of their relationship and how the respondent was trusted.  Part of this evidence related to the respondent organising a 70^th birthday and acting as Master of Ceremonies at a party held in 2015 for the applicant’s mother.  The respondent’s view was that the parents needed assistance and he was trying to help.  This too is evidence in isolation and equally consistent with the evidence of the respondent that he was acting in a professional capacity but also trying to help the applicant’s parents.  Accordingly, nothing turns on that issue.  When all of the incidents to which the parties referred during the year 2015 are taken in context, they generally create the impression of two people who have respect for each other and a friendship which was extended to such things as attending social functions and even going out together.  What is missing however is any evidence of them living together as a couple on a genuine domestic basis.  What both parties acknowledge was occurring in 2015 was the negotiation of some form of conclusion of their financial relationship each with the other.  It is logical that if that was happening, the nature of the relationship had altered after February 2014.

21. The incident to which I have referred about which the cousin gave evidence related to January 2016 but in that same period of time, it seems common ground that the parties were still negotiating a financial package to finalise their relationship.  In February 2016, according to the applicant, they went to the botanical gardens together.  The respondent said he did not think that was correct and pointed with some particularity to an incident at a dinner where he had dined not only the applicant but also members of her family.  This dinner was said to have taken place at O Town.  He recalled there was a falling out with the applicant’s mother because on that night, his credit card did not work and accordingly, he had to ask the mother to pay.  His recollection was that rather than going to the botanical gardens, he went to H Town.  Again, for the reasons I have earlier mentioned, the respondent was a far better historian and able to explain why he did things that would otherwise give the appearance to the public that he and the applicant were a couple.  I accept that there were a number of these incidents where the parties were together but they do not indicate more than that each had some respect for the other and they were comfortable most of the time in each other’s presence.

22. The applicant asserted that during this same period, she went to the respondent’s offices and participated in social and business functions and entertained his clients.  When that was put to the respondent, he was again precise with his answer.  He said there were only two occasions that he could recall when the applicant was in his office.  These related to trust transactions about a person by the name of Mr P.  He said that he had the trust records specifically for 27 February 2014 but otherwise, there was no such transaction.  As for his clients, he said that there is no doubt the applicant knew one or two of them but he could otherwise count them on one hand.  Again, his precise answer indicates that the applicant, in relying upon the public reputation of the parties, only establishes the social nature of their relationship rather than it being one that could be said to be domestic.

23. Things came to a head in April 2016.  As I have already mentioned, the applicant relied upon a reference in police records and said that at least one perception was inaccurate.  Counsel for the applicant was the one in final address who made reference to the subpoenaed police material.  Certainly by August 2017, when there were intervention order proceedings between the parties, the police view was that the relationship had ended in April 2016 but that, of course, came from whatever the applicant told the police.  In July 2017 however, a different police officer recorded for the purposes of a Family Violence Report that the relationship had ended in 2014.  In June 2017, police reports from a different police station make reference to a separation in February 2014.  The Suburb Q police report arose out of an incident in May 2017.  It is conceivable that the report was drawn from a police database and I am unable to make a finding about that.  More importantly, in April 2016 it is uncontroversial that the applicant complained to the police about the behaviour of the respondent.  Whilst again, the reference to the separation could have been drawn from the police database, the police officer recorded that the applicant “often resides with her ex-de facto…who is the respondent”.  There is no suggestion in those records of how that conclusion was drawn. 

24. As I have earlier mentioned, s 4AA(4) permits the court 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.  It was the applicant who raised this evidence and said that it was wrong but she did not call upon any of the police to attend.  She certainly made reference to the particular police officer whom she said she had pursued but the record which she subpoenaed, contained much more and I consider I am entitled to draw inferences from those statements having given her counsel notice that I had seen them in the pursuit of the issue that she raised and provided him with a copy of the whole of the subpoenaed record. 

25. Counsel for the applicant took the matter no further.  At another police station in Suburb R in July 2016, the same reference is made to February 2014 as the ending of the relationship but that too could have been drawn from the same database.  The police at Suburb R in both April and July 2016 had to deal with disputes between these parties and different police officers had concluded that the relationship had ended in 2014. 

26. In respect of the April attendance on the police, they recorded that in January 2016, the applicant moved out of her rental property (no doubt a reference to D Street) and had moved to “his holiday house” in H Town.  The respondent told the police that the applicant stayed at his unit “occasionally” relating to the sporting and social commitments of the applicant’s daughter.  That is what the applicant told the police in 2016 and it remains his evidence before this court.  He was not challenged about that particular issue.  It is more probable than not therefore that his evidence about providing the N Street property to assist the applicant and her daughter “occasionally”, is correct.

27. The significance of the last piece of evidence relating to N Street arises because the parties disputed why N Street was leased.  The applicant said it was effectively a transition residence whilst they waited for another house.  The respondent’s position was that he had never intended the applicant to move in with him and that he had to obtain the alternate accommodation because of the return to Australia of his daughter.  Having regard to all of those matters, I find that the respondent’s version of facts is the more plausible one.  Accordingly, by the early part of 2016, it was clear that the relationship was not as described by the applicant.

28. It is again self-evident that the applicant’s view that the de facto relationship came to an end in “March/April” 2016 cannot be right.  All of the evidence points to the fact that there were negotiations going on including the drafting of documents at least from the respondent’s position indicating that the relationship had ended.  The very clear indication in the applicant’s evidence is that what brought the relationship to an end was the violent incident in April that ended up in the hands of the local police.  In my view, that argument has no merit having regard to what had been happening in the previous weeks if not years.

29. The applicant pointed to pages of her diary in April 2016 in which the respondent had written and signed what purports to be some form of agreement to conclude their financial arrangement.  In her evidence, the applicant said that on 1 April 2016, the respondent provided her with yet “another agreement” but this time it was written in her diary.  She said that this was the first time it was acknowledged by the respondent that the relationship had ended.  Whatever may have been her understanding, I find that the de facto relationship had come to an end as described by the respondent in February 2014 and that this document simply indicated their respective intentions about how the financial arrangements were to be concluded.  That said, the respondent put to the applicant that this handwritten agreement in the diary was written under duress.  The applicant denied that.  A whole string of questions was put to the applicant about violence and threats towards him that particular night and she denied them all.  It is unnecessary for me to make any specific findings about how that agreement was executed because in my view it only highlights the fact that there were negotiations going on to end the relationship prior to 1 April.

30. It is interesting that as late as two weeks later, the respondent went to Adelaide for the funeral.  Despite what the applicant said about this agreement acknowledging the end of the relationship, the applicant told police two weeks later (the statement for issuing Family Violence Notice encompassing her statement being included by the applicant as an exhibit) that when she attended the respondent’s apartment, they slept in separate bedrooms.  The police recorded that the applicant needed him to give her a reference because she had applied for an apartment in Suburb S. 

1. Whilst the applicant maintained that the reasons for the protection order as drawn by the police were inaccurate and based on a misunderstanding of the police officer who discussed the issue with her, my understanding of her complaint was her reference to the separation date being asserted as February 2014.  However, the other details which could only have come from her, tend to suggest that the relationship had ended before she went to Adelaide and that she was planning to obtain her own residential accommodation.  That is not the evidence that she wanted the court to accept by her reference to the N Street property being leased until the parties obtained another home.

2. In short, the picture portrayed by the applicant is very confusing but in my view, having found that the respondent was a better historian, I consider his evidence the more probable as to the date that the relationship ended and I make that finding on the balance of probabilities.

3. I have already mentioned the indicia which is not exhaustive set out in s 4AA(2) of the Act. To the extent that the evidence is vague about whether the parties had a relationship as a couple living together on a domestic basis, it is necessary to turn to some of those factors to see whether the position as put by the applicant could be sustained. There is no doubt that the duration of the relationship was long. I find however that after February 2014, the nature and extent of the common residence was impossible to identify on the evidence presented by the applicant. The respondent’s evidence which is more historically likely is that he permitted the applicant and at times her daughter, to have use of his property but there was otherwise no common residence.

4. Insofar as the issue of a sexual relationship is at all relevant, I accept the only evidence comes from the respondent that the last sexual activity occurred in 2013.  The evidence of the respondent was that the parties slept together but I have no evidence from her as to the nature of their sexual relationship other than the fact that she observed that it was not an issue because of the health of the respondent. 

5. There can be no dispute in this case that there was a significant degree of financial dependence by the applicant upon the respondent and that when she needed assistance, he provided it.  He paid for the many activities that they did together.  However, she also accused him of effectively trying to avoid her having access to his funds albeit there was no corroboration of her assertion. 

6. It is clear that there was no joint ownership of property.  Fundamentally, when a residence was required at D Street, it was the respondent who was sent to execute the lease details.  The applicant did not give evidence as to why that was so bearing in mind her evidence that she was conducting a trading business (fledgling or otherwise).

7. Significant in determining whether people are a couple is the question of the mutual commitment to a shared life.  Nothing that I have heard from the applicant indicates that subsequent to February 2014, these parties enjoyed anything other than social occasions which seemed to suit both of them.  The applicant’s evidence about the inability to know where the respondent was, and his appearances in Europe and Asia, all indicate there was hardly a commitment that he was making to her about a shared life and as such, I find there was no mutual commitment to a shared life after February 2014. 

8. Section 4AA(2)(h) refers to the care and support of children. There is no doubt that the respondent had a fondness for, and respect for, the applicant’s daughter. He paid school fees and picked her up from an airport flight. He provided the accommodation for her and the means for daily living. He had no legal obligation to do that but it would appear on the evidence that no-one was under any misapprehension that the applicant’s daughter was not his child.

9. The most difficult of the indicia relates to the reputation and public aspects of the relationship.  The only evidence provided by the applicant related to the real estate agent and to her cousin in Sydney.  I have dealt with both of those witnesses earlier in these reasons.  Little more can be said about that evidence.  There was little evidence here of the parties attending public functions where they portrayed themselves as a couple.  The evidence of the two witnesses has to be seen in the context in which the events occurred.  Those events were consistent with what I would consider to be a friendship or association between two adults but certainly not something of a couple living together on a domestic basis.  I have evidence from the applicant that when he was living in the home owned by his daughter, he came to D Street two or three times per week.  There is no dispute in this case that the respondent had furniture and effects at D Street and that would tend to suggest that he saw that residence as his principle place of abode but then he was not there for the majority of the time.  The parties’ dispute the nature and extent of the relationship after February 2014 revolves around the applicant saying that she provided meals but he did not attend to participate.  That indicates a lack of commitment.  As I have found, the respondent was a better historian.

10. Ultimately, the submission of counsel for the applicant was that what the court was seeing had been occurring prior to February 2014.  I have little evidence about that period of time but I accept that things did change after February 2014 upon the applicant’s return from Africa.  Over the ensuing years, there were negotiations about ending the financial obligations notwithstanding the respondent continued to pay for the various events as and when they arose.

11. In all the circumstances of this particular relationship, I am satisfied that as a de facto couple, their relationship came to an end in February 2014 and was never resurrected to what it was prior to that time as a consequence of the respondent’s decision to end that obligation.  The two years subsequent to that time could not enable me to draw an conclusion that the parties were living together as a couple on any domestic basis let alone one consistent with what they had had prior to February 2014.

12. I find in the circumstances that the de facto relationship ended in February 2014.

13. I turn then to the application of the applicant in the alternative that she be granted leave under s 44(6) of the Act to bring her property and spousal maintenance application out of time.

14. Section 44(5) of the Act provides that a party may apply for property settlement or maintenance orders only if the application is made within the period of two years after the end of the de facto relationship. In this case therefore having found that the relationship ended in February 2014, the application by the applicant would have needed to have been filed by February 2016. It was filed only a few months later.

15. Section 44(6) provides that the court may grant a party who is out of time to bring such an application, leave to apply if satisfied that hardship would be caused to that party if leave were not granted.

16. Two broad questions arise for determination.  Is the court satisfied that hardship would be caused to the applicant if leave were not granted and secondly, if satisfied that hardship does arise, should the court exercise its discretion to grant or refuse that leave (see Whitford and Whitford (1979) FLC 90-612).

17. The focus must therefore be on hardship first and in Whitford, it was made clear that the loss of the right to institute proceedings is not the hardship to which the sub-section referred but with the consequences of the loss of that right.  Of necessity therefore the court must be satisfied that the applicant would probably succeed if the substantive application was heard.  If successful, would the relief then sought ameliorate or alleviate the hardship?

18. Hardship was also considered in Whitford.  The Full Court referred to it as “akin to such concepts as hardness, severity, privation, that which is hard to bear or a substantial detriment”.  It must be something more burdensome than “any appreciable detriment”.  That requires a subjective determination. 

19. Authority also indicates that the inquiry is not intended to be detailed as to the merits but rather whether there is a reasonable claim to be heard.  There must be a real probability of success.  That is difficult for the applicant here on the basis that the respondent is bankrupt and on his evidence, there is a shortfall in the position of assets over liabilities.

20. In determining the hardship here, a number of matters are straightforward.  The applicant filed her initiating application on 15 July 2016 and sought $2 million.  On any view of the evidence I heard, that sort of relief is unrealistic.

21. Having regard to the determination earlier made, the de facto relationship was extant for somewhere in the vicinity of eight years.  There are no children of the relationship.  The applicant’s affidavit filed 15 July 2016 had been prepared on the basis that her evidence would be accepted but the relationship ended in 2016.  Most of it focussed on issues that are not now relevant.  However, she said that she assisted the respondent marketing clients and their businesses.  She said she owned a block of land which was subsequently sold but no details were provided as to where that money went.  She was entirely dependent upon the respondent who paid not only the rent but all of the expenses.  No explanation was given as to why that was so.  All she said was that at all times the parties had an understanding that the respondent would provide for her needs and those of her daughter.  As I earlier mentioned, he had no legal obligation to support the applicant’s daughter.

22. Not long into the relationship, the respondent purchased a property in Suburb S East at Heather Court for $1.1 million but soon thereafter sold it for $1.6 million.  That property had been rented during the interim.  No indication was given in the evidence of the applicant as to what contribution, if any, she made to that property or indeed, what contribution she had made generally.  The parties continued to live in rented premises.  She then alleged that the respondent purchased C Street but in his daughter’s name.  I do not understand what that assertion means as to whether it relates to a question of ownership.  In other words, is the property held by the respondent’s daughter on trust?

23. The applicant was on notice that the respondent was challenging the end date right from the beginning of these proceedings when the respondent filed the response that he did. Section 44(6) should therefore have been foremost in the mind of the applicant (or at least her advisors) as an alternative to her own position. An order was made in December for an affidavit to be filed and the applicant complied. Apart from some inferences that may be drawn around questions of dependency, the affidavit says little about what assets the parties had and what contributions the applicant made. Whilst the respondent undoubtedly supported the applicant and her daughter, the respondent’s contribution here may be quite significant.

24. This December affidavit also focussed very heavily on the nature of the relationship and its end rather than focussing in the alternative on the hardship issues.  It was only as a result of the evidence of the applicant that the court became aware of the extent of the applicant’s hardship.  She is a cancer patient and entirely reliant upon Centrelink benefits.  I know nothing about her residential circumstances because she indicated that her address was care of her solicitors.  She said she was living in a shelter because of family violence.  It must be concluded therefore that I have no understanding how her claim for relief of $2 million arises.  There is no extant application for spousal maintenance by way of final relief.  In her interim application, she seeks $3300 per week for maintenance and I have presumed on the basis that she has no income and I am not permitted to take into account her Centrelink benefits, she may very well qualify for maintenance.  However, the evidence of the respondent indicates that may be problematic.

25. There is no distinction between the right to claim a property settlement and spousal maintenance.  The relief here is vague and it is troubling that there has been little attention to detail.  However, the hardship to which the law refers is the amelioration of the applicant’s present financial position.  I can safely infer that on the evidence she gave, she qualifies under the threshold for maintenance and as the respondent concedes, he supported her extensively throughout the duration of the relationship.  In my view, to deny her the opportunity to seek that maintenance in those circumstances would undoubtedly create a hardship. 

26. The evidence is so sparse on property matters that I am uncertain how I could find that the applicant qualifies at all for any such relief.  However, there seemed to be consensus between the parties that there was an “understanding” between them that the respondent would be the financial provider and she has now lost that.  That is not just an issue associated with spousal maintenance.  As I earlier observed, the applicant claims to have assisted the respondent in respect of his business dealings and although as a bankrupt, he appears to have lost all of that, the applicant maintains that he was shifting assets around.  It is unclear whether she is asserting that there was some fraudulent activity or activity undertaken for the purposes of defeating her claim. 

27. What is disconcerting however is the fact that no approach has been made to the respondent’s trustee in bankruptcy to assert that property held by the respondent at the point in time at which he executed the debtor’s petition, was the subject of an equitable interest of the applicant.  It was unclear from the submissions of counsel for the applicant upon what basis her claim for property settlement arose.  He made reference to contributions but it would appear that they could only be of a non-financial nature.

28. It will therefore be seen that I am concerned that the merits of the claim of the applicant both in respect of property settlement and spousal maintenance are questionable. However, sometimes it is only when minds are concentrated on what needs to be established that issues become more clear. It behoves the legal representatives of the applicant to start to identify the issues about which I am concerned. I am satisfied however that there is a potential claim although it is difficult to say with any certainty just how much merit it has but on the basis of the assertions of the applicant which is the evidence upon which I must decide the matter, I am satisfied that the loss of that claim, would create hardship for the applicant. If she was to receive spousal maintenance, she may be in a much better financial position than she currently is. Thus, subject to the evidence of the respondent being such that a court may be able to make an order for spousal maintenance against him because he is currently self-employed, there is merit in the applicant’s claim. Accordingly, an order under s 44(6) of the Act should be made.

29. Although not discussed, it also seems to me that the applicant’s application for substantive relief needs to be rectified.  I do not accept that discovery impedes that because the applicant lived the life with the respondent for those years and should therefore know of his business activities.  As I observed earlier, the issue about any entitlement to property currently held by the trustee in bankruptcy also needs to be rectified quickly.  The application seeking interim maintenance may be just that.  The applicant needs to decide whether she is seeking some form of permanent spousal maintenance and if so on what basis and in what amount.  In other words, the documents on the court file indicate that this litigation suffers from lack of serious attention to the nature of the problems and how they are to be solved.  That needs urgent attention.

I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 26 February 2019.

Associate: 

Date:  26 February 2019