Sloane & Moran
[2023] FedCFamC1F 988
•17 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Sloane & Moran [2023] FedCFamC1F 988
File number(s): ADC 5883 of 2022 Judgment of: RIETHMULLER J Date of judgment: 17 November 2023 Catchwords: FAMILY LAW – DE FACTO – Determination of existence of a de facto relationship – Where the applicant asserts the parties were in a de facto relationship for a period of ten years – Where the respondent refutes the existence of a de facto relationship – Consideration of the nature of the parties’ relationship – Where applicant spent time between States – Joint private health insurance policy – Where the applicant was financially supported by the respondent – Declaration of de facto relationship – No matters of principle Legislation: Family Law Act 1975 (Cth) ss 4AA, 90RD Division: Division 1 First Instance Number of paragraphs: 72 Date of hearing: 23-25 August 2023 and 6 September 2023 Place: Darwin, delivered in Parramatta Counsel for the Applicant: Ms Cocks Solicitor for the Applicant: Tindall Gask Bentley Counsel for the Respondent: Mr Rosic Solicitor for the Respondent: AFL Withnalls Lawyers ORDERS
ADC 5883 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SLOANE
Applicant
AND: MR MORAN
Respondent
ORDER MADE BY:
RIETHMULLER J
DATE OF ORDER:
17 NOVEMBER 2023
THE COURT DECLARES THAT:
1.Pursuant to s 90RD of the Family Law Act 1975 (Cth) Ms Sloane and Mr Moran were in a de facto relationship from 25 June 2012 until 5 April 2022.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sloane & Moran has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
RIETHMULLER J:
INTRODUCTION
The applicant commenced proceedings on 23 December 2022 seeking property settlement against the respondent, on the basis that she shared a de facto relationship with the respondent. On 3 July 2023, the applicant filed an Amended Initiating Application seeking a declaration to that effect pursuant to s 90RD of the Family Law Act 1975 (Cth), contending the parties were in a de facto relationship from 2012 to 8 July 2022.
The respondent denies that he and the applicant were in a de facto relationship and seeks the applicant’s Application be dismissed.
This judgment determines the jurisdictional threshold issue as to whether the parties were in a de facto relationship (as defined in s 4AA of the Act), and if so, the length of any such de facto relationship.
BACKGROUND
The applicant was born in 1966 and the respondent in 1951.
The applicant separated from her husband in 2008, however, remains married to him, and is yet to finalise a property settlement with him (having only sought a property settlement with her husband after separation from the respondent). The applicant has four adult children from her marriage. The respondent was previously married and has two adult children of his former relationship (and one adult child who passed away).
The parties met for the first time in 2006 through work (the applicant was working for her parents’ business), however, the applicant was married and living with her husband and children in Adelaide at that time.
Like many cases concerning de facto relationships, there was no single significant event that shows whether, and if so when, the parties’ relationship was within the definition of a de facto relationship as set out in s 4AA of the Act.
History of the relationship
Between 2006 and 2007, the parties’ friendship developed.
In about 2007 or 2008, the applicant alleges she began working for B Company (the respondent’s business). The applicant says that the respondent brought her an iPhone from Country C and added it to B Company’s telephone account. The respondent contends the applicant only commenced employment with B Company in early 2014 on a part time basis, where she worked remotely from Adelaide and in City C when she visited the respondent.
Between 2006 and 2009, the applicant says she travelled to City C on a quarterly basis for work. Around 2007 or 2008, the applicant says she began staying in the spare room at the respondent’s unit when she visited City C. The respondent contends the applicant did not begin spending time at his home until 2010.
In late 2008, the applicant moved into a rental property in South Australia. The respondent alleges the applicant did not have the money to pay the rental bond and asked to borrow money from him. The respondent deposited $10,000 into the applicant’s National Australia Bank (“NAB”) account. The applicant remained living in the rental property until early 2010 when she moved back into her parents’ home in Adelaide.
In about 2008 or 2009, the applicant ceased her employment with D Company (her father’s business, in partnership). This was clearly set out in her affidavit in a way that gave the impression that she ceased working for her father’s business entirely at that point. However, she remained employed by E Pty Ltd (her parent’s business) doing the bookkeeping and accounts. She simply ceased working in that part of her father’s business that was bought by his business partner. The arrangements for her employment with her parents (which appears to have been ongoing for some years) were that she was paid cash by her mother from wages that were written up in the books as payments to her mother. It is unclear why this was done, particularly given that the applicant was the bookkeeper for her parents. It seems that at least during 2010 to 2012 she was receiving around $650 per week from her parents.
The applicant alleges that she and the respondent commenced an intimate relationship in or about 2008 (after she separated from her husband), and they commenced their “dating” relationship in about 2009. It was around this time that the applicant says she began referring to the respondent by affectionate names and told her father that they were together, and told friends that she was “with [Mr Moran]”. In 2009, the applicant alleges the respondent travelled to Adelaide to surprise her on her birthday and that they were intimate that night. However, the respondent asserts that their intimate relationship only commenced in about 2010 when the applicant began spending overnight time at his home in City C.
By 2010, the parties agree that the applicant travelled to City C once every three months for work (or approximately three to four times per year).
From 2010 to approximately 2012, the applicant says she spent three weeks in Adelaide and one week in City C per month. From 2012, the applicant says she spent the majority of her time with the respondent (in City C, interstate together, or overseas), an otherwise moved to live with the respondent in his City C home.
The respondent claimed the applicant only came to City C one week every three months until 2011, after which he says the applicant started travelling to City C one week every month from 2011 to 2014.
The applicant says she stopped travelling with the respondent in 2019.
During the time the parties lived together, both agree there were periods when their relationship broke down and they were separated. However, such periods were brief (often a week). The parties separated on a final basis in July 2022.
In July 2022, the parties had planned to go away together. Around this time, the applicant had told the respondent she wished to lend one of the motor vehicles to her daughter, who was said to be visiting from Adelaide. The respondent set off in his separate vehicle first, with one of the dogs. The applicant told the respondent she was would meet him there. Once the respondent had left the house, she and her daughter left in the two motor vehicles (which the respondent had purchased and registered in the applicant’s name), her possessions, jewellery gifted to her by the respondent, a sum in cash (that was stored under the respondent’s house), and headed for Adelaide. Not surprisingly, the respondent was concerned to be unable to locate or get in contact with the applicant and no doubt quite devastated on discovering that she had left him, and that she had done so in the fashion that she chose. In evidence, the applicant said that she was concerned about leaving as she believed that the respondent would talk her into staying if she raised it with him. It appears more likely that she wished to avoid telling the respondent the relationship was over, knowing he would be heart broken.
I note that when the applicant left the relationship, she also took one of the parties’ dogs.
EVIDENCE AT TRIAL
There were difficulties with the applicant’s credit. She had taken a sum in cash from the household when leaving the respondent, yet did not declare that in documents that she filed with the Court, even when seeking urgent spousal maintenance. It was clear from the shock displayed by her father when he was being cross-examined that she had not told her father about taking this money. The applicant did ultimately disclose the money that she took from the respondent’s Region G home, listing it on the last page of her Financial Statement in Part O (filed 23 May 2023), rather than among the assets found earlier in the document. Whilst much was made of this by counsel for the respondent, it appears to me that all that was required was that she disclose the money, and the fact that it was not included under what may have been a more appropriate heading, does not detract from its disclosure. This coupled with the misleading way in which she described her employment with her parents leads me to treat her evidence with caution.
The balance of the witnesses (including the respondent), save for Ms F, appeared to be reliable witnesses, although each saw the events about which they gave evidence more favourably for the party who called them to give evidence. This is hardly surprising given that the applicant called her father and children, and the respondent called friends of his.
I was unimpressed with Ms F, who appeared to be strongly partisan in favour of the applicant. Although, Ms F did concede that the respondent was caring and affectionate, treated the applicant well, and after some prevarication, that the respondent was a generous man. None of the other witnesses had disputed that the respondent was a generous man. Ms F also conceded that she was surprised that there were problems in the parties’ relationship. I place no weight on her evidence.
Two children of the applicant gave evidence that they liked the respondent, and that he was kind and generous. Her son was surprised that the applicant felt apprehensive about leaving the relationship and her daughter had no real idea as to why such significant subterfuge was entered into in order to arrange for the applicant to leave the household. I found them reliable witnesses.
Nature of the relationship
The applicant agreed in evidence that in 2012 she started spending around a week per month at the respondent’s, and that on these occasions she would come and go with suitcases. She also agreed that in 2013 she was still coming and going with suitcases, whilst living in Adelaide with her parents. This appears to have continued until 2014, although she was unclear in her evidence about whether this was around two weeks per month that she was spending with the respondent.
The applicant did not point to any particular time where she formally moved into the respondent’s house pointing out there was no big fanfare about it. This is not uncommon in de facto relationships. A number of events took place thereafter that were consistent with a deeper relationship than merely friends, for example she had worked on sketch plans to design a holiday house or renovations, they acquired and cared for pet dogs together, and she cancelled her health insurance as the respondent added her to his health insurance.
The applicant said that she had her clothes in wardrobes at the respondent’s house by 2015, and in 2016 (when she turned 50 years of age) there was talk of the parties becoming engaged. She said that she did not want to get engaged at the same time as turning 50 years old. The applicant said that she was planning to divorce her husband but had done nothing to pursue that, claiming that she had not pursued a divorce as she has not been given an engagement ring. Whilst she said that no engagement ring was provided, the applicant did get a “ring of commitment” although says there was no particular event that marked the occasion. The fact that the respondent never purchased the applicant an engagement ring and she never divorced her husband seems perplexing at this point, however often these types of things are tasks that people do not get around to, particularly during later in life relationships. The applicant agreed that the respondent had also bought her other jewellery.
The applicant agreed that the respondent had purchased a Motor Vehicle 1 and registered the vehicle in her name, but said she did not ask why it was registered in her name. She explained that Motor Vehicle 1 was registered in her name in case the respondent passed away and she took it from the household as she thought she could sell it and use the money for a flat. When purchasing Motor Vehicle 1, there is a photograph which shows the vehicle with a large ribbon on it, as if it was a gift. During cross examination, the respondent says the ribbon was in the show room and not organised by him. The applicant also had use of a Motor Vehicle 2, which was also taken to Adelaide by her (and her daughter) at separation. The respondent sets out in his Case Outlined filed 17 August 2023 that the applicant disposed of one of the vehicles for $33,500.
At one stage, the applicant had purchased shares for $50,000 (as recommended and funded by the respondent), which she later sold at a considerable profit which she retained.
The applicant agreed that the respondent wanted her to commit to the relationship and that she knew he wanted to marry her and accepted that she did not commit to him. Although, she reiterated that he never purchased her an engagement ring.
At one stage the respondent supported the applicant to commence a business although this did not seem to ever become an operating business.
The applicant never paid any of the expenses involved in running the house, and appears not to have made any financial contributions through the relationship, relying entirely upon the respondent.
On the evidence of the respondent’s friends, it seems that they did not observe the applicant cleaning the house or the kitchen. In the household, the applicant denied that she rarely cleaned and that the house was often in a mess or that she rarely cooked. She agreed, however, that they employed a gardener and paid backpackers to clean up the property, and that she had her own refrigerator in the household. The applicant explained having her own refrigerator being because the respondent was concerned that her “healthy stuff” was “junking up the other fridge”.
It seems that the respondent had loaned the applicant’s father money and that there is still money owing from her father to the respondent. I accept she would have been aware of this from doing the books of her parents’ business, even though she says she was only doing the GST component. Those borrowings were made from the husband three to four times in order to pay GST.
The applicant still has a bedroom at her parents’ house, although says she has never had the dog at this household and she does not live there now as she has the dog.
The applicant in her evidence said that the respondent had told her that he would be financially responsible for her and discouraged her from seeking a property settlement from her husband. This was denied by the respondent. It appears more likely that the respondent did not press her to seek a property settlement, and that she was avoidant of such a process (just as she was avoidant of an open process of ending the relationship with the respondent). When the applicant was considering leaving her husband, she had many conversations with the respondent, although said in evidence that she did not blame him for her choice to leave her husband. Later in evidence she nominated 2012 as the time that she moved in because that was when she said she started doing around three weeks in City C and one week in Adelaide.
It is clear that the parties split up for short periods on a number of occasions, but on each occasion came back together again. It appears that the ultimate cause of the end of the relationship was the applicant’s belief that the respondent was seeing another woman.
Whilst the applicant was in Adelaide in April 2022, she returned to Region G but was then planning to separate and did so by June 2022. She also pointed out that in 2016 one of the dogs was registered in joint names, and the variety of text messages of the type that would indicate the parties were in an intimate relationship. The fracturing of the relationship that occurred when the applicant thought that the respondent was seeing another woman is also indicate of the parties being in a committed relationship. There is no evidence to indicate that until close to the end of the relationship that either of them was in a close relationship with another.
The respondent’s will
It appears that in 2014 the applicant become upset when she discovered photographs of a will or draft will in the respondent’s computer folders as the will only mentioned her as a friend and gave her only a life tenancy in the property. She took this up with the respondent although denies that there are ongoing tensions over the will. The applicant agreed that she did not pay for anything and that she used what money she received as she chose.
It appears that the will caused considerable tensions as the respondent appears to have made promises in 2016 by text message with respect to putting her name on the title of a property, although this promise he agreed was made to keep her in the relationship and he never followed through on making the transfer. It seems that on one occasion when separated, the health crisis of his stepfather led to the parties renewing their relationship, as the applicant provided support for the respondent.
Text messages
There were a large number of text messages provided in the evidence and the subject of cross‑examination, almost all of which showed loving exchanges between the parties often with emojis and often describing their dogs in terms one would ordinarily use for children. On one occasion when friends had a family tragedy the respondent sent a message on behalf of the two of them before speaking to the applicant. On another occasion, when discussing fasting as a form of diet, the applicant sent a text message to the respondent telling him this was “what we do anyway”. Another message indicated that mundane household things were being undertaken, such as washing some Italian sausages before putting them in the refrigerator. Another mundane matter was when the respondent sent a text to the applicant asking where the tea towels were located in the house.
The respondent shared his health information with the applicant and even had discussions about his relationship with his grandson.
The respondent regularly sent flowers to the applicant when she was not in City C and text messages were exchanged indicating that they missed each other when they were apart. The respondent admitted that the parties had held hands from time to time, although not often, and that the applicant had sat on his lap, although he thought rarely and not in front of others.
It appears that the relationship had reached a point of some significance by 2012 given that the applicant’s health insurance was cancelled and she was added to the respondent’s policy, and her mother had sent her queen bed to City C where it remains in a spare room.
In 2016, there are some text messages indicating that the respondent had been talking to a friend about finances between couples, and following a period of separation of the parties he recounted that his friend was providing his own wife with an allowance of $300 per week.
The respondent suggested that the money he provided to the applicant (at least the $300 per week) and the health insurance were part of pay that he was paying her for assisting with managing his rental properties and other business activities, however they do not appear to have been accounted as such in the business records. It seems more likely that they were in the nature of payments of pin money and health insurance for a spouse.
Time spent together
At the end of the hearing a schedule was prepared of the various flights to and from Adelaide and other locations for the parties in order to estimate the number of days in which they were together either in City C or on holiday which provided as follows:
Percentage Schedule
Year Days in Region G Days interstate Days overseas Total of days in Region G, interstate and overseas Percentage 2010 35 9 0 44 44/365=12.05% 2011 123 0 0 123 123/365=33.69% 2012 132 0 23 155 155/366=42.35% 2013 95 33 63 191 191/365=52.33% 2014 192 23 27 242 242/365=66.30% 2015 238 11 18 267 267/365=73.15% 2016 199 20 48 267 267/366=72.95% 2017 191 37 28 256 256/365=70.14% 2018 244 8 38 290 290/365=79.45% 2019 241 7 21 269 269/365=73.69% 2020 271 0 0 271 271/366=74.04% 2021 288 10 0 298 298/365=81.64% 2022 103 0 0 103 103/189=54.49%* *separation occurred on 8 July 2022. There are 189 days from 1 January 2022 to 8 July 2022.
THE APPLICANT’S CASE
Counsel for the applicant argues that the commencement point for the de facto relationship was when the respondent chose to add the applicant to his health insurance policy in July 2012.
It appears clear that the final separation was on 8 July 2022 when the applicant left with her daughter taking the cars, possessions, a dog, and money with her.
THE RESPONDENT’S CASE
The substantive case put by the respondent was to the effect that he was besotted by the applicant, however she had never committed to him in the sense necessary for it to become an de facto relationship within the meaning of the Act. There is no question that the respondent was committed to the applicant and a relationship with her.
DE FACTO RELATIONSHIPS
The definition of a de facto relationship is set out in s 4AA(1) of the Act, which provides:
De facto relationships
Meaning of de facto relationship
(1) A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b) the persons are not related by family (see subsection (6)); and
(c)having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Attempts to place glosses upon the words of the legislation often lead to error as it distracts decision-makers from the words of the section.
In this case there is no question that the parties are not legally married to each other nor that they are not related by family (as defined in s 4AA(6) of the Act). The only question for determination is whether or not, in accordance with s 4AA(1)(c)of the Act, “having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis”.
Although the applicant remained married to her husband at the time of the threshold hearing, the definition of a de facto relationship under the Act provides that a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship: see s 4AA(5) of the Act.
In determining whether a relationship may be within the definition of a “de facto relationship”, the Court may have regard to any of the following circumstances that may be relevant, as set out in s 4AA(2) of the Act:
Working out if persons have a relationship as a couple
(2) Those circumstances may include any or all of the following:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h) the care and support of children;
(i) the reputation and public aspects of the relationship.
Whilst the Court may have regard to each of the factors in s 4AA(2), it is not required to make any particular finding in relation to each of the subparagraphs, but may “attach such weight to any matter, as may seem appropriate” in the circumstances of the case: see s 4AA(3) and s 4AA(4) of the Act.
In this case, the relationship between the parties was one of long duration. At least by 2010 the applicant was spending overnight time at the respondent’s house in City C, and it appears that the relationship intensified thereafter. The parties continued to have a relationship at least until June 2022 when the applicant left the household and unequivocally separated from the respondent.
The nature and extent of their common residence in City C is not as straightforward as residence issues might be in other cases. The respondent had a permanent residence in City C and the applicant spent considerable time living there with him. In the early parts of the relationship, the applicant also maintained and used her room in the residence of her parents, as she was doing their bookwork and had children in Adelaide. She spent considerable time, unsurprisingly, in Adelaide due to the family members that she had in that city.
The table constructed by the parties (at [47]) from the material produced on subpoena by the various airlines sets out the number of days or nights that the parties were together through the various years, either in City C, interstate, or overseas. At least by the time that the applicant’s queen size bed was sent to City C she had moved in sufficiently to have her own bed at the household, which was shipped from Adelaide.
It seems that the parties slept in separate bedrooms at different times, due to the respondent suffering a medical condition, although the parties shared the bedroom when they had visitors utilising the room often occupied by the applicant.
Whilst the applicant had a room in her parents’ home in Adelaide, it does not appear that she had any significant residence elsewhere than at the respondent’s household in City C, for the bulk of the relationship.
There is no dispute that the parties had a sexual relationship. Indeed, the extent of the evidence about the detail of that relationship was entirely unnecessary in this type of ligation and does not need to be recounted in this judgment.
There was obviously a degree of relationship intimacy (beyond a sexual relationship) as is apparent from the applicant being asked questions such as where the tea towels are located in the house by the respondent.
The degree of financial dependence or interdependence between the parties together with any arrangements for financial support between them is unusual in this case. It appears that the respondent met all of the day-to-day expenses of the household and paid for holidays and the like. The applicant was receiving funds from her parents which she used for her own purposes and also received money from the respondent which appears to have been in the nature of pin money. I am satisfied that the applicant had considerable financial dependence upon the respondent during the course of the relationship, and that the respondent was content to support the applicant as an incident of the relationship.
In this case the respondent owned the property that the parties utilised, although purchased shares for the applicant, on which she made a profit, and purchased a motor vehicle for the applicant. They did not acquire property together and the applicant did not seek a property settlement from her husband during the time of the relationship, although is now doing so.
There was considerable dispute at the hearing as to the degree of mutual commitment that the parties had to a shared life. There does not appear to be any doubt that the respondent had a significant commitment to a shared life with the applicant and he wished to continue a shared life with the applicant. The extent of the applicant’s commitment is difficult to ascertain. The effect of the arguments of the respondent was that it was more in the nature of a commitment until better options presented themselves or she tired of the arrangement. However, it seems that the catalyst for ending the relationship was not that the applicant had found an alternative partner, rather that the respondent had become intimate with another. Realistically, the relationship had reached a point where their commitment was waning. Whilst I accept that the applicant had less of a commitment to the relationship than the respondent, I am persuaded that she did have, at least during the relevant years, a commitment to a shared life with him in the sense referred to in s 4AA(2)(f) of the Act.
The relationship was not registered under a prescribed law of a state or territory.
The parties did not share in the care or support of their children, given the ages of the children at that time. The children that they had from previous relationships featured in their lives, but not as dependents.
Much was made of whether or not the reputation of their relationship and the public aspects of their relationship was that of “de factos” or they would utilise other terms. The social norms for introductions of older couples, whether they describe themselves as partners or by first names varies considerably. It seems less common today for people to describe each other as de factos, a term that may have waned in popular usage since formal recognition in the Family Law Act 1975 (Cth). The looseness of meaning of the term “de facto” in popular usage does not alter its meaning as used in the statute, where its definition must be ascertained from the Act. However described, it appears that those around the applicant and respondent saw them as a couple.
CONCLUSION
When viewed as a whole I am persuaded that the parties were in a de facto relationship within the meaning of s 4AA of the Act from at least the time when the respondent added the applicant to his health insurance policy through to April 2022, when it seems that the applicant had formed a view that she was going to separate, which was ultimately put into effect in July 2022.
I therefore make declarations pursuant to section 90RD of the Act that a de facto relationship existed between the parties between 25 June 2012 and 5 April 2022.
As I have little accurate information as to the parties’ finances and the s 90SM claim is yet to be determined, I am of the view that the costs of this hearing should be reserved to the trial judge who hears the s 90SM claim.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Riethmuller. Associate:
Dated: 17 November 2023
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