SUN & WEI

[2019] FCCA 669

FEDERAL CIRCUIT COURT OF AUSTRALIA

SUN & WEI [2019] FCCA 669

Catchwords:
FAMILY LAW – De facto property – whether there was a de facto relationship following divorce – husband’s claim that he participated in a fake divorce to assist the wife to defraud the Commonwealth – both parties making false statements on affirmation in the divorce application – the credibility of both parties compromised but the husband’s worse – parties cohabiting after the divorce because the husband would not leave the house.

Legislation:
Family Law Act 1975, ss.4AA, 44

Cases cited:
In the Marriage of Kowalski (1992) 109 FLR 193; (1992) 16 Fam LR 235; (1993) FLC 92-342
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; (2007) 96 ALD 510; (2007) 237 ALR 64; (2007) 81 ALJR 1401; [2007] HCA 35

Applicant: MR SUN

Respondent: MS WEI

File Number: MLC 9516 of 2017

Judgment of: Judge Riley

Hearing dates: 17 and 18 December 2018

Date of last submission: 18 December 2018

Delivered at: Melbourne

Delivered on: 18 March 2019

REPRESENTATION

Counsel for the applicant: Mr Korke

Solicitors for the applicant: Accuro Legal

Advocate for the respondent: Mr Guo

Solicitors for the respondent: GR Lawyers

ORDER

The husband’s application filed on 10 December 2018 for a declaration that the parties were in a de facto relationship between 17 January 2010 and 25 October 2015 or any part thereof and consequential orders be dismissed.

NOTATION

Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 9516 of 2017

MR SUN

Applicant

And

MR WEI

Respondent

REASONS FOR JUDGMENT

Introduction

1. The question in this proceeding is whether the applicant husband and the respondent wife were in a de facto relationship from the date of their divorce on 16 December 2009 until 25 October 2015 or for any part of that period. 

2. The husband claimed that the divorce was fake, and that he agreed to it to assist the wife in relation to difficulties she was having with Centrelink.  He claimed that she was fraudulently obtaining a single parent’s pension and wanted the divorce to substantiate her false claim to Centrelink that she had been separated for some time.  The husband maintained that, following the divorce on 16 December 2009, the parties continued to live together in a genuine domestic relationship as a de facto couple until 25 October 2015.  However, the husband conceded that the parties slept in separate rooms during that time.  He said this was according to Chinese custom. 

3. The wife disputed that there is any such Chinese custom. The wife said that she and the husband were living separately and apart in the former matrimonial home from well before the divorce in 2009 until she moved out on 26 October 2015.  The wife said that she could not evict the husband from the house, which was by then in her sole name, because he dominated and intimidated her.

4. It was common ground that the parties were married in China on … 1989.  The husband moved to Australia three days later, on … 1989. The wife moved to Australia about four years later, on … 1994.  The parties bought a house in Property A in 1996 in their joint names.

5. The husband’s solicitor sent the wife a letter dated 26 March 1999 saying that the parties separated under the one roof on 30 December 1998, and the husband would seek a divorce on 30 December 1999, unless the parties had reconciled in the meantime.

6. The wife transferred about $30,000 to the husband in 2000, for the purposes of his share trading. 

7. The parties’ daughter was born in Australia on … 2003.  She is now 16 years old. 

8. The wife sold an apartment in Shanghai that was registered in her name and transferred the proceeds of $38,200 (on the husband’s case) or $45,000 (on the wife’s case) to the husband in 2004.  The wife said the payment was consideration for the husband transferring his interest in the Property A property to her.  The husband said the payment was not pursuant to a binding financial agreement or otherwise connected with the transfer of his interest in the Property A property to the wife.  The husband transferred his interest in the Property A property to the wife in 2005.

9. A joint application for divorce was filed on 27 October 2009.  A divorce order was made on 16 December 2009. 

10. Following the divorce in 2009, and until 26 October 2015, the husband and wife both continued to live in the former matrimonial home.  On 26 October 2015, the wife and daughter moved out of the former matrimonial home.  Following the granting of an intervention order against the husband, he moved out of the former matrimonial home and the wife and daughter moved back in on or about 26 July 2017. 

11. The husband filed an initiating application seeking property and parenting orders on 14 September 2017.  

Time limits

1. The husband’s initiating application was filed within the statutory time limit for the commencement of de facto proceedings, if, in fact, the husband was correct in claiming that the parties were in a de facto relationship until 25 October 2015. Subsection 44(5) of the Family Law Act 1975 (“the Act”) permits de facto property applications to be brought as of right within two years after the end of the de facto relationship.  In this case, the proceedings were brought within that time, namely, on 14 September 2017.

2. However, s.44(3) of the Act provides that matrimonial property proceedings cannot be commenced without leave of the court or the consent of both parties more than 12 months after a divorce order has taken effect. There is provision for extensions of time to be granted in certain circumstances.

3. An obvious tension exists between s.44(3) and s.44(5) of the Act in the circumstances of this case, where there has been both a divorce and, on the husband’s case, a subsequent de facto relationship. However, it seems to me that justice requires that the tension be resolved in favour of a party being able to bring de facto property proceedings as of right in circumstances where a de facto relationship existed following the divorce. It would be a travesty of justice in such cases to require a person to seek an extension of time, which is only available in limited circumstances, when another applicable provision in the Act gives an absolute right to commence proceedings.

4. In the Marriage of Kowalski (1992) 109 FLR 193; (1992) 16 Fam LR 235; (1993) FLC 92-342 held that, once people have been married, their property proceedings will always be a matrimonial cause and, if sufficient time had gone by, they would need to seek an extension of time to bring proceedings. However, Kowalski preceded the insertion into the Act of the de facto jurisdiction provisions, which commenced on 1 March 2009. Kowalski is therefore distinguishable. Kowalski cannot override the clear effect of s.44(5) of the Act.

The statutory definition of de facto relationship

1. Section 4AA of the Act defines de facto relationship as follows:

   Meaning ofde facto relationship 

   (1)   A person is in a de facto relationship with another person if:

   (a)   the persons are not legally married to each other; and

   (b)   the persons are not related by family (see subsection (6)); and

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

   Paragraph (c) has effect subject to subsection (5).

   Working out if persons have a relationship as a couple

   (2)   Those circumstances may include any or all of the following:

   (a)   the duration of the relationship;

   (b)   the nature and extent of their common residence;

   (c)   whether a sexual relationship exists;

   (d)   the degree of financial dependence or interdependence, and any arrangements for financial support, between them;

   (e)   the ownership, use and acquisition of their property;

   (f)    the degree of mutual commitment to a shared life;

   (g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;

   (h)  the care and support of children;

   (i)    the reputation and public aspects of the relationship.

   (3)   No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.

   (4)   A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.

   (5)       For the purposes of this Act:

   (a) a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and

   (b)   a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.

   When 2 persons are related by family

   (6)   For the purposes of subsection (1), 2 persons are related by family if:

   (a)one is the child (including an adopted child) of the other; or

   (b)one is another descendant of the other (even if the relationship between them is traced through an adoptive parent); or

   (c)they have a parent in common (who may be an adoptive parent of either or both of them).

   For this purpose, disregard whether an adoption is declared void or has ceased to have effect.

The scope of the dispute

1. It was common ground that, at relevant times:

   a)the parties were not legally married to each other;

   b)they were not related by family; and

   c)they were living together.

2. The dispute centred on whether, between 16 December 2009 and 25 October 2015, or for any part of that period, the parties were living together as a couple on a genuine domestic basis.

Credibility issues

1. Both parties gave oral evidence through interpreters.  I have made allowance for that in assessing their credibility.

2. On the husband’s own case, he falsely affirmed in the divorce application filed on 27 October 2009 (exhibit 2) that: 

   a)he was living at a different address to the wife, namely, Suburb B;

   b)he separated from the wife in March 2003;

   c)at the date of separation, he regarded the marriage as over;

   d)since the date of separation, he and the wife had not lived together as husband and wife.

3. The wife, on her own case, also made false statements on affirmation in the divorce application that:

   a)the husband was living at Suburb B; and

   b)since the date of separation, she had not lived in the same home as the husband other than as husband and wife; and

   c)separation occurred in March 2003.

4. On the wife’s own case, her affirmation in the divorce application falsely stated the date of separation.  According to the divorce application, separation occurred in March 2003.  According to her case outline,

5. Making a false affirmation to the court in related proceedings is enough to seriously damage a person’s credibility.  However, it is theoretically possible that both of the parties lied in the divorce application but one or the other of them told the court the truth in the present application.

6. In his oral evidence, the husband conceded that he was not living at Suburb B at the time of the divorce application.  He explained his falsehoods in the divorce application on the basis that the wife told him to say he was living at Suburb B, and that the whole enterprise was to assist the wife because she was in trouble with Centrelink.  Whether this explanation can be accepted, and its effect on the husband’s credibility, is considered further below.

7. When asked in oral evidence about the husband saying in the divorce application that he was living at Suburb B, the wife said that she did not know whether the husband was living at Suburb B when she signed the divorce application on 26 October 2009.  She said her English was not very good.  Obviously, if that was the case, she should have affirmed the divorce application through an interpreter.  She did not do so.

8. When asked where the husband was living at that time, the wife said that she did not know.  She said he lived whereabout and it had nothing to do with her.  She said that he sometimes went out and slept elsewhere.  When pressed, she said he possibly stayed elsewhere once a week.  When it was put to her that if he was living with her at the Property A property he could not have been living at Suburb B, she eventually said that he was living in the Property A property with her, but not as husband and wife. 

9. The consequence is that the wife’s affirmation in the divorce application about where the husband was living at that time was false.  Her attempts to explain the falsehood by saying that her English was not very good, and she did not know where the husband was living at that time, and that he sometimes stayed elsewhere, were unconvincing attempts to avoid the court finding that she signed a false affirmation.  This means that she was not an entirely frank and reliable witness before the court in the present proceeding.

10. The husband was adamant that the wife had arranged the divorce and filed the application and that he had just signed the papers at her request.  The divorce application is patently a joint application.  A printout from the Commonwealth Courts’ Portal in respect of the divorce (exhibit 1) shows that the husband filed the application.  However, it is possible that the portal indicates that the husband filed the application simply because the husband’s details appear before the wife’s in the printed application form.  Either way, as it was a joint application, it matters little who physically filed it.

11. In any event, in denying that he had done any more than sign the divorce application, the husband said the wife’s counsel could check the handwriting.  When shown the application, after much prevarication, the husband conceded that it “looked like” his handwriting in the column headed “Husband”.  After further extended prevarication, the husband conceded that it was his handwriting.  The initial denial, and the subsequent prevarication, cast considerable doubt on the husband’s reliability as a witness in his evidence before this court in this proceeding.

12. The husband’s case was that he and the wife had entered into a fake divorce to defraud the Commonwealth via Centrelink.  The husband said that the wife received a letter from Centrelink in about September 2009 which indicated that she was in trouble with that agency.  The husband did not produce a copy of the alleged letter from Centrelink or describe its contents in any detail.  A letter dated 11 October 2018 (exhibit 4) from the husband’s solicitor to the wife alleged that the wife had deceptively obtained a single parent pension since 2003 when she was in an ongoing genuine domestic relationship with him.

13. In cross-examination, the husband was asked repeatedly whether he benefited from the wife’s alleged fraud on Centrelink.  That was in circumstances where he claimed that, in some years, he had no income at all.  The husband was very evasive in his responses, but eventually seemed to concede that he benefitted from the wife’s income, and thus benefitted from her alleged fraud on the Commonwealth.  The husband’s evasiveness about this issue also undermines his credibility.  His avowed willingness to participate in a fraud for his own financial advantage suggests that he might also make false statements in this proceeding for his financial advantage.

14. The wife denied that she had defrauded the Commonwealth and denied that she had ever had any difficulties with Centrelink.  She produced a document entitled Centrelink Customer Record (exhibit 6) which was somewhat unintelligible.  She claimed it was a complete record of all the payments she had ever received from Centrelink. The wife did not provide any expert evidence about the meaning of the various codes and abbreviations in it. In any event, it seemed to say:

    a)Item 10, the wife received a taxable pension of $164 in 2010;

    b)Item 11, the wife received a taxable pension of $1,681 in 2016;

    c)Item 12, the wife received a taxable pension or something described as NSS of $13,781 in 2017; and

    d)Item 13, the wife received a taxable NSS of $13,802 in 2018.

15. No explanation was provided to the court about why the entries started with item 10 or what any earlier items might have been.  However, the wife did confirm in oral evidence that she received a letter from Centrelink in 2009.  She said that it was about family tax benefit.  She said that she received a similar letter every year.  That suggests that Centrelink could have provided the wife with a document that included items 1 to 9, and that would have included details about any family tax benefit she had received. 

16. Indeed, the wife could have obtained from Centrelink her full Centrelink history and provided it to the court.  Although her Centrelink payments were central to the case against her, and although the husband would not have been able to subpoena them because of secrecy provisions, the wife did not provide the relevant documents to the court. 

17. The wife’s failure to provide her full Centrelink history to the court, and her claim to have provided a Centrelink record which included all the payments she had ever received from Centrelink when it obviously does not, cast doubt on the wife’s credibility.

18. The wife produced a letter from her former employer saying that she was employed from 23 September 2005 to 21 December 2016 (exhibit 7).  The purpose of that evidence seemed to be that the wife did not need to defraud Centrelink, because she had gainful employment.   In these days of data-matching, it seems unlikely that a person would be so foolish as to claim a Centrelink benefit to which they would not be entitled if they were employed.  However, there may be other Centrelink benefits that a person could obtain if they were employed, particularly if they were on a low income, such as the wife was, provided that they were not partnered, or, if they were partnered, provided that their partner was not earning more than a certain amount.  The letter from the wife’s employer does not really advance matters.

19. The wife also produced records from the Child Support Agency from 17 March 2003 until 31 December 2007, 1 July 2008 to 31 December 2009, 1 December 2013 to 13 May 2014 and 1 March 2015 to 31 October 2018.  The parties’ daughter was born on … 2003.  The records show that the husband was often assessed to pay the minimum annual rate of child support or a very low amount.  The husband and wife were living at the former matrimonial home at that time, but, on the wife’s case, they were living separately under the one roof.  The child support records are consistent with the wife’s case that the husband and wife were separated from 1998 onwards. 

20. Both parties were very poor witnesses. They both had great difficulty giving straight answers to simple questions.  Neither of them instilled any great confidence in the reliability of their answers.  They were both somewhat argumentative and inclined to give extraneous information in their answers.

21. In any event, the bottom line is that there is no evidence before the court, apart from the husband’s vague assertions, that the wife did defraud the Commonwealth, or was in any trouble with Centrelink.  Fraud is a very serious allegation that must be clearly alleged and clearly proved: SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; (2007) 96 ALD 510; (2007) 237 ALR 64; (2007) 81 ALJR 1401; [2007] HCA 35 at [15]. The husband has not clearly alleged the fraud and has not clearly proved it.

1. As the husband has not been able to prove what he claimed was the motivation for the allegedly fake divorce, and in view of all of the other evidence in the case, I do not accept that the divorce was fake.  I consider that the husband made a false allegation to the court about this matter for his own financial advantage.  This was grossly dishonest.

2. While both parties’ credibility was seriously compromised, taking into account all of the evidence in the case, I consider that the wife was somewhat less untruthful than the husband.  Taking into account all of the evidence in the case including the matters discussed below, I consider that the parties separated under one roof in 1998.  I accept the wife’s explanation relating to the conception of their daughter in 2002, which was that she was feeling sad, the husband comforted her, and one thing led to another.  

3. I suspect, but do not find, because the evidence is so hazy, that the wife may have lawfully obtained a Centrelink benefit of some sort, perhaps Family Tax Benefit B, in 2003 and following, on the basis of being a single parent. She was required to prove to Centrelink in 2009 that she was separated.  She asked the husband to complete the divorce application, which he was willing to do, because he was not in an ongoing relationship with her anyway.  The wife fabricated the false evidence about the husband’s address and the date of separation because she thought that would be more convincing for Centrelink.   Those fabrications were unnecessary, because the wife was entitled to the Centrelink benefit she was receiving.

The duration of the relationship

1. On the husband’s case, the parties were married on … 1989, had a fake divorce on 16 December 2009 and were in a de facto relationship until 25 October 2015.  That is, the husband claimed that the parties were in a marital or marriage-like relationship for 25 years.

2. On the wife’s case, the parties were married on … 1989 and divorced on 16 December 2009.  That is, on the wife’s case, the parties were married for 20 years and did not have a marriage-like relationship after that.  Indeed, on the wife’s case, the parties separated in 1998, about 11 years before they were actually divorced.

3. In view of my finding about the parties’ credibility, and taking into account all of the other evidence in the case and the findings elsewhere in these reasons, I accept the wife’s claims about the duration of the relationship.

The nature and extent of their common residence

1. On the husband’s case, the parties lived in a house together from … 1994, when the wife arrived in Australia, until 26 October 2015, when she moved out of the former matrimonial home.  For much of that time, on the husband’s case, they had separate bedrooms, in accordance with Chinese culture.  The husband produced no expert evidence about Chinese cultural norms regarding the sleeping arrangements of couples.

2. On the wife’s case, the parties separated under the one roof on 30 December 1998 and remained separated under the one roof until the wife and daughter moved out of the house on 26 October 2015.   The wife claimed that, on an occasion when she was feeling particularly sad, the husband comforted her.  She said it was at that time that they conceived their daughter, who was born on … 2003.  

3. The wife produced a letter, dated 26 March 1999, to her from a solicitor acting for the husband.  The letter is exhibit 3.  It noted that the parties had separated on 30 December 1998, and said that, if the parties did not reconcile, the husband would file for divorce after 12 months of separation on 30 December 1999.

4. In oral evidence, the husband’s response to that letter was that the wife at that time:

   was always out and about, which caused psychological pressure on me, so I want to give [her] a lesson.  We separate and then later she apologised and accepted.

5. The wife produced photographs of the bedroom she said that the husband occupied in the house (exhibit 5).  The photographs show an unmade single bed and a great deal of mess and clutter.  The wife said the sheets were dirty and smelly. 

6. The husband said that the wife had gone into his room and messed it up for the purposes of taking the photographs. 

7. As I have found the husband to be a particularly unreliable witness, and having seen the parties in the witness box, I prefer the wife’s evidence on these matters.  I am not persuaded that there is a Chinese custom whereby couples sleep separately. I accept the wife’s explanation about the conception of the parties’ daughter.  I accept that the husband occupied a dirty and smelly bedroom in the former matrimonial home.  I accept that the husband and wife lived separately in their common residence from 1999 until 26 October 2015. 

Whether a sexual relationship exists

1. The husband claimed that the parties had a sexual relationship throughout their marriage and de facto relationship.  The wife claimed that they rarely had sexual contact after she had surgery in … 1997.

2. Having seen the parties in the witness box, and in view of my concerns about the parties’ credibility, I prefer the wife’s evidence on this issue.  As mentioned above, I accept the wife’s explanation about the conception of the parties’ daughter.

The degree of financial dependence or interdependence, and any arrangements for financial support, between them

1. There was no suggestion that the parties had a joint account.

2. It was not disputed that the husband worked in various unskilled jobs in Australia from 1990 until 2000, when he hurt his back.  He then worked from home as a share trader until 2015, when he began working in customer service.  The husband said that his tax records showed that he had the following income, with dashes indicating years when he could not find the paperwork:

1989/1990	----
1990/1991	$14,325
1991/1992	$27,190
1992/1993	$25,142
1993/1994	$24,661
1994/1995	$12,432
1995/1996	$2,132
1996/1997	$2,829
1997/1998	$25,440
1998/1999	$29,541
1999/2000	----
2000/2001	$0
2001/2002	$0
2002/2003	----
2003/2004	$0
2004/2005	$0
2005/2006	$4,823
2006/2007	----
2007/2008	$0
2008/2009	$0
2009/2010	$0
2010/2011	$0
2011/2012	$0
2012/2013	$0
2013/2014	----
2014/2015	$2,922
2015/2016	$11,166
2016/2017	$14,780

1. As can be seen, on the husband’s own evidence, there were many years when he earned nothing.  Accordingly, I conclude that he was largely supported by the wife.

2. The husband did not dispute that the wife worked in Australia initially in factory jobs, then in customer service.  The wife earned a transparent wage.  The husband might sometimes have made money with unskilled work and his share trading, but the details are obscure and, on his own admission, there were a number of years when he earned nothing.  The wife claimed that the husband kept any money he earned for his own purposes. I accept that he did so after the separation at the end of 1998.  On the evidence, I conclude that the wife largely supported herself and her daughter, and, to some extent, the husband as well.

3. It was common ground that the parties bought a house in Property A in their joint names in 1996.  The wife claimed that the parties used money she had brought from China and money she had saved from working.  There was a small housing loan which the wife claimed that she fully repaid from her wages in 1999.  The husband claimed that he contributed to the mortgage.  For present purposes, as the husband’s tax records indicate that he was earning at that time, and as the parties were in an ongoing relationship for most of that time, I accept the husband’s claims in this regard. 

4. The husband produced various council rates and water bills addressed to both parties.  However, the names on the bills merely reflect the fact that both parties were originally on title.  It proves nothing about who earned the money to pay the bills. The wife conceded that the husband’s bank records showed that he sometimes physically paid the bills, but said she gave him the cash to do so.  In view of my findings on the parties’ credibility, and as the husband, on his own evidence, often earned nothing, I accept that the wife generally earned the money to pay the utility bills. 

5. It was common ground that an apartment was acquired in Shanghai in 1995.  The wife claimed that the husband bought it with money she had provided.  The husband claimed initially that the apartment was given to him by his father, who received it as a gift from the Chinese government, in appreciation of his occupational achievements.  The husband said that the apartment was put in the wife’s name, because the husband did not have a Chinese House Registry Book or Number as he was living in Australia.  Inconsistently, the husband then said that he bought the apartment.  Due to the inconsistency in the husband’s evidence about whether he obtained the apartment as a gift or by purchase, and in view of my findings about the parties’ credibility overall, I prefer the wife’s evidence relating to the acquisition of the apartment.

6. It was common ground that the apartment was sold in 2004.  The wife claimed that she gave the proceeds of sale, of $45,000, to the husband, on the basis that he would transfer his share of the Property A property to her. 

7. It was common ground that the husband transferred the Property A property to the wife in 2005.  However, the husband said that the proceeds of sale of the Shanghai property, which he received, amounted to only $38,200.  He also said that his receipt of the money was not pursuant to a binding financial agreement.

8. In the absence of documentary evidence, I make no finding about the actual amount of the proceeds of sale of the Shanghai apartment.  It was common ground, and I accept, that the husband receiving the proceeds of sale of the Shanghai apartment was not pursuant to a binding financial agreement.

9. The wife claimed that, in 2012, at the husband’s request, the wife paid him another $70,000 by way of a property settlement.  The husband claimed that the wife transferred that money to him for him to invest in shares on their joint behalf.  The wife denied that. In view of my findings about the parties’ credibility, I accept that the wife paid that amount as part of an informal property settlement. 

10. The husband argued that the substantial payments of about $40,000 and $70,000 from the wife to the husband were normal matrimonial payments.  I do not accept that.  I consider that they were an informal attempt at a property settlement.

11. On the evidence, the husband substantially benefitted from the wife’s earnings, but the wife did not substantially benefit from the husband’s earnings, if any.  To that extent, there was some financial dependence by the husband on the wife, but little financial dependence by the wife on the husband. 

12. Some of the parties’ matrimonial financial matters have been touched on in these proceedings as part of the background to their alleged de facto relationship.  Findings have been made about some of these matters for the purposes of determining the de facto jurisdiction question.  However, if the court is called upon to determine a matrimonial property proceeding, there may be other relevant evidence adduced that would cast a different light on these matters, and different findings may be made.

The ownership, use and acquisition of their property

1. This has been discussed above.

The degree of mutual commitment to a shared life

1. The wife claimed that she began dating another man in October 2014, about 12 months before she moved out of the former matrimonial home.  That man is her current partner, Mr C.  He affirmed an affidavit on 28 October 2018. 

2. Mr C said in paragraph 2 of his affidavit that the wife and his sister in law are friends.  He said that he and the wife became friends in 2006.  He said that in 2012, the wife said she needed to go to hospital, and the husband would not assist her because they were divorced.  It was implicit that Mr C took the wife to and from the hospital on that occasion.

3. There was no objection to the hearsay aspects of this evidence.  Mr C was cross-examined.  However, he was not challenged on paragraph 2 of his affidavit.  I accept that, in 2012, the husband did not take the wife to the hospital when she needed to go, although he was not working outside the home at that time.  This suggests that he was not committed to a shared life with the wife in 2012.  I accept Mr C’s evidence in paragraph 2 of his affidavit.

4. In paragraph 8 of his affidavit, Mr C said the husband said to him on 23 October 2015, shortly before the wife left the former matrimonial home:

   a)the wife told the husband that Mr C and the wife were already married;

   b)that was okay;

   c)the husband and wife had long been divorced; and

   d)the house was not the husband’s.

5. Mr C was briefly cross-examined about paragraph 8 of his affidavit.  However, he was unshaken in his evidence.  I accept that the husband said the matters ascribed to him.  Apart from the suggestion that Mr C and the wife were married, when they were at most in a long-term romantic relationship, I consider that the husband was expressing his real perceptions, including that in October 2015 he was relaxed about the wife already being in a long-term romantic relationship with another man.

6. This, and the other evidence discussed elsewhere in these reasons for judgment, indicate that the husband and wife were not mutually committed to a shared life after their divorce.

Whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship

1. There was no suggestion that the relationship was registered.

The care and support of children

1. On the wife’s evidence, which I accept, she almost single-handedly cared for the parties’ daughter. 

The reputation and public aspects of the relationship

1. The husband noted that the parties and their daughter were on the same Health Care Card, and noted that the wife said she was married when she took out motor vehicle insurance in 2013.  The husband said that these circumstances showed that the parties were in a de facto relationship after their divorce in December 2009.

2. The wife explained that she put the husband as an additional driver on the insurance for her car because he sometimes drove the car, against her wishes, and drank to excess.  She said that she wanted the car to be covered in the event he had an accident while driving it.  She said that the insurance was taken out during a telephone conversation with the insurer. 

3. The insurance certificate shows that the husband was a licensed household member and a listed driver.  It also shows that he was married to the wife, who was the insured person, and was her spouse.  The wife said this information was recorded as the result of a misunderstanding.

4. I accept the wife’s evidence in relation to the car insurance.  I can readily accept that, in a telephone conversation with an insurer, the wife’s circumstances could have been misunderstood as being a marital relationship, when in fact the parties were divorced in 2009.  Given the wife’s limited command of the English language, it would have been difficult to convey that the man she was living with, and who sometimes drove her car against her wishes, was not her husband, whether as the result of a marriage or a de facto relationship.

5. The wife explained that all of the members of the family appearing on the same Health Care Card was the result of an administrative error or oversight.  I accept that explanation.

6. To my mind, the insurance certificate and Health Care Card, even when taken with the other evidence in the case, do not establish that the parties were in a de facto relationship after their divorce.

7. The husband claimed that, in 2014, the wife took him to the Employer where she worked and introduced him to an employee as her husband.  The wife conceded that she took the husband to her then workplace.  She said that she did that to encourage the husband to get a job so that he would move out of her house.  The husband did eventually find work in an Employer.  The wife denied introducing him as her husband. 

8. The husband sought to rely on an affidavit affirmed by Mr D, who the wife introduced the husband to.  However, Mr D was extremely elderly and was unable to leave his home for the purposes of cross-examination. In the circumstances, I place very little weight on his affidavit. 

9. Mr D claimed to be a mutual friend of the parties.  However, on his own evidence, that is probably an overstatement, as the wife met him in her capacity as an employee.

10. The husband did not provide any evidence from friends and family who saw the parties in their own home or in their own environment, and who had personal knowledge of how they actually lived. Mr D was only able to recount what he had been told by the parties, which may have involved presenting their relationship in a rosy light, and recount his limited observations of the parties in the Employer, where they may have been acting in a somewhat professional capacity.

11. The husband did not produce photographs of the husband and wife together on family outings, or family holidays, or at social events and such like, even though his solicitor said in a letter that he had many such photographs. When pressed on this issue, the husband again prevaricated.  He said there was a photograph from 2008, which was before the divorce, in the possession of his sister in China.  However, notwithstanding the technological ability to transmit photographs electronically, ultimately the husband did not produce any photographs of the husband and wife as a couple.

12. Because of my findings about the parties’ credibility, and having seen the parties in the witness box, I accept the wife’s evidence in relation to the visit to the Employer.  The husband has been able to point to minimal third party evidence that the parties were in a marriage-like relationship after their divorce. 

13. The husband exhibited to his affidavit affirmed on 7 December 2018 one page of an intervention order obtained by the wife against him on 11 May 2005 (exhibit LS-17).  It protected the wife and daughter.  It was expressed to last for one year.

14. The husband said that he and the wife had an argument over the transfer of property, and that she obtained the intervention order to force him to transfer the property.  He said that he was homeless for a time and then agreed to transfer the property.  He said the wife applied to have the intervention order revoked on 19 May 2005.  He produced the revocation application (exhibit S-18).  He said they then resumed cohabitation.

15. The wife exhibited to her affidavit affirmed on 26 October 2017 an application dated 29 April 2005 for an intervention order and related documents.  In the application, she said that she separated from the husband in 1999.  She said that the police applied for an intervention order on her behalf, but it was withdrawn on 20 April 2005 because the husband asked her to.  She said he threatened her again on 22 April 2005, by saying he would hit her, and tell the police she hit him first, and by saying he would damage the trees at the Property A property.  She claimed that the applicant had physically, emotionally and verbally abused her and that their daughter had witnessed his ongoing beatings of her.  The wife also said that, at that time, the husband was her domestic partner.

16. A new intervention order application was listed for hearing on 29 April 2005.  On that day, an ex parte interim intervention order was made to last until 11 May 2005.  It excluded the husband from the former matrimonial home.  On 11 May 2005, the husband did not attend court.  A final intervention order was made with effect until 11 May 2006.

17. Because of my findings about the parties’ credibility, I accept the wife’s claims that neighbours called police on 11 April 2005 and the police obtained an intervention order on her behalf.  I accept that was withdrawn on 20 April 2005 when the husband promised not to repeat his behaviour. I accept that the wife obtained another interim intervention order on 29 April 2005, and a final intervention order on 11 May 2005.  It was that final intervention order that was revoked by the wife on 19 May 2005.

1. The intervention order documents are contemporaneous public records that show a troubled relationship in 2005.  That was prior to the divorce.  They lend weight to the view that the divorce in 2009 was genuine.  I consider that the wife’s statement in the 2005 intervention order application that she was in a domestic relationship with the husband was reflective of them sharing a house, rather than an admission that they were in a de facto relationship.

2. All in all, I do not consider that the parties presented themselves to the world as a couple after their divorce.

Conclusion

1. In view of all the evidence in this case, and for the reasons expressed above, I am not satisfied that the parties were in a de facto relationship after their divorce until 25 October 2015 or for any part of that period.  Consequently, the husband’s application for a declaration that the parties were in a de facto relationship and consequential orders will be dismissed.

I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date: 18 March 2019