Swinbank & Stein

Case [2022] FedCFamC1F 682

Federal Circuit and Family Court of Australia

(DIVISION 1)

Swinbank & Stein [2022] FedCFamC1F 682

File number(s): CSC103 of 2021
Judgment of: JARRETT J
Date of judgment: 14 September, 2022
Catchwords: FAMILY LAW – Application for declarations pursuant to s.90RD of the Family Law Act 1975 (Cth) – whether the parties were in a de facto relationship – where the applicant bears the evidential and legal burden – where neither party were credible witnesses – where the parties share two children – where the evidence permits a finding that the parties were in a relationship – where the paucity and quality of both parties’ evidence, including the applicant’s, does not permit finding that the parties were a couple who lived together on a genuine domestic basis
Legislation:

Family Law Act 1975 (Cth) ss 4AA, 90RD

Evidence Act 1995 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.31

Cases cited:

 Fairbairn v Radecki [2022] 96 ALJR 529; HCA 18

Onslow & Onslow [2016] FamCAFC 7

Sinclair & Whittaker (2013) FLC ¶93–551; [2013] FamCAFC 129

Division: Division 1 First Instance
Number of paragraphs: 108
Date of last submission/s: 21 June, 2022
Date of hearing: 20 & 21 June, 2022
Place: Cairns
Counsel for the Applicant: Mr Lenehan
Solicitor for the Applicant: Sharma Lawyers
Counsel for the Respondent: Ms Carmody
Solicitor for the Respondent: Aylward Game Solicitors

ORDERS

CSC103 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR SWINBANK

Applicant
AND:

MS STEIN

Respondent

order made by:

JARRETT J

DATE OF ORDER:

14 September, 2022

THE COURT DECLARES THAT:

1.Pursuant to s 90RD(1) of the Family Law Act 1975 (Cth), a de facto relationship as defined in s 4AA of the Family Law Act 1975 (Cth) has never existed between the applicant and the respondent;

THE COURT FURTHER ORDERS THAT:

2.If either party contends that the Court should make any further orders other than an order dismissing the application filed on 5 February, 2021 and the response filed on 15 April, 2021 then that party must, no later than 4.00pm on 21 September, 2022 file and serve:

(a)a minute of the order or orders sought; and

(b)written submissions of no greater than 5 pages in length in support of any proposed orders.

3.In the absence of either party filing and serving material pursuant to order 2 hereof, the Court shall on 22 September, 2022 order that the application filed on 5 February, 2021 and the response filed on 15 April, 2021 be dismissed.

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…

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Swinbank & Stein [2022] FedCFamC1F 682
Case
[2022] FedCFamC1F 682
Decision Date

CaseChat Overview and Summary

In the case of Swinbank & Stein, the court was tasked with determining whether the applicant and the respondent had a de facto relationship as defined by section 4AA(1) of the Family Law Act 1975 (Cth). The applicant, born in 1981, claimed to have lived with the respondent, also born in 1981, from early 2014, while the respondent, employed in the public service, maintained that they were merely co-parents of their two children, X and Y, born in 2014 and 2016 respectively. The court needed to decide whether the relationship between the parties evolved into a genuine domestic partnership at any point between early 2014 and mid-2020.

The court examined the evidence presented, including the parties' testimonies and the observations of their interactions. The court found the applicant's account of their relationship to be disingenuous and lacking in clarity, particularly regarding the nature of their cohabitation. The respondent's evidence suggested that, while they had a physical and parental relationship, the parties never truly lived together on a genuine domestic basis. The court concluded that, despite the applicants' claims and the presence of children, the relationship did not meet the legal definition of a de facto relationship as it did not involve the parties living together on a genuine domestic basis.

Ultimately, the court dismissed the applicant's application for property adjustment, determining that no de facto relationship existed between the parties. The court found that the applicant and respondent's relationship, while evolving over time, did not satisfy the criteria for a genuine domestic partnership as defined by the Act. Consequently, the court directed the parties to address any necessary consequential orders before making final dispositions of the proceedings.

Orders

Orders of the court

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Background

Background to the litigation

The cross-examination of the respondent about alcohol drums continued for some time and demonstrated the respondent to be quite disingenuous. I found some of the respondent’s other evidence, particularly that concerning the depositing of money into the children’s bank accounts, untruthful.Background and some findings of fact These facts are seemingly uncontroversial:(a)the applicant was born in 1981 and is currently 41 years of age;(b)the respondent was born in 1981 and is currently 41 years of age;(c)the applicant has worked in a primary industry and was working as a fly-in, fly-out worker during the period 2014 to 2019 or thereabouts. Initially that was on a roster, but what his arrangements were from 2019 onwards is not at all clear. Presently, the applicant is unemployed and lives in his motor vehicle;(d)at all relevant times the respondent worked in the public service and remains in that employment;(e)the parties have two children together: X, born in 2014 (now 7 years of age) and Y, born in 2016 (now 6 years of age);(f)the applicant has two children from a previous relationship: E who is about 16 years of age and F who is about 12 years of age. Those children live with their mother, Ms G, in H Town;(g)the respondent has one other child who is now about 17 years of age. He lives with the respondent, Y and X in her home in K Town;(h)the respondent took maternity leave from her occupation when each of the parties’ children were born;(i)in addition to her employment in the public service, the respondent earned income as a foster carer and let rooms for periods of time;(j)in early 2014 the applicant owned a property in L Town, Queensland, a motor vehicle, a boat and superannuation; (k)in early 2014 the respondent owned four parcels of real property: one in Suburb M, Brisbane, one in N Town, and two in K Town. She lived in the property at B Street, K Town but rented the others for most of the time. She too, had a motor vehicle and some superannuation;(l)the parties never had a joint bank account, or owned any real or personal property together;(m)the applicant stayed at the respondent’s property at B Street, K Town from time to time although the frequency of those stays is in dispute;(n)the applicant would spend time with his children E and F at the K Town property, including some school holiday time, although how often it occurred is also a dispute. The applicant swears that the parties started “living together” in early 2014 although he does not give evidence of the circumstances in which that occurred. He gives no evidence of how the parties met or how their relationship developed to the point that they began “living together”. Nor does he explain what he means by that phrase. It is not clear whether the applicant intended his use of the phrase “living together” to mean that the parties cohabited or perhaps, lived together on some broader basis. His oral evidence and the submissions made on his behalf at the conclusion of the trial brought no clarity to this issue. However, I infer from the way in which his case was conducted that his contention is that he and the respondent lived in the same residence from early 2014 when he was not away for work.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I accept counsel for the respondent’s submission that the observations of the applicant’s witnesses are all explicable by the fact that these parties had a relationship as parents of children and nothing more. Whenever the applicant and the respondent have been observed together, save for one occasion, they have been together with their children. The evidence shows that after the birth of X, at least, the parties only ever went out together and alone on one occasion – an occasion organised by the applicant for her own birthday. Conclusion For the reasons I have expressed above, I am not satisfied on the balance of probabilities that the applicant and the respondent had a relationship as a couple living together on a genuine domestic basis. That is to say, I am not satisfied that the applicant and the respondent were in a de facto relationship within the meaning of that term as defined by s 4AA(1) of the Act at any time. They may have been in a relationship, but the relationship did not involve the parties living together on a genuine domestic basis. Whilst they may have been a couple in the sense that they enjoyed a physically intimate relationship and were the parents of two children, I am not satisfied that their relationship with each other was such that it could be said that they were living together on a genuine domestic basis. That should not be read as the Court requiring them to demonstrate that they lived in the same household – that is clearly not the law. But the characteristics of the relationship that I have identified above lead me to conclude that they were not living together on a genuine domestic basis. It is appropriate to declare that a de facto relationship as defined in s 4AA of the Family Law Act 1975 (Cth) never existed between the applicant and the respondent. It follows that the application for property adjustment by the applicant should be dismissed. However, I have not heard the parties on what, if any consequential orders are necessary and will make directions to accommodate that before pronouncing orders that might dispose of the proceedings.

Ratio Decidendi

Legal Principle Established

Moreover, whilst the perception of the parties about the nature of their relationship is a relevant matter, it is not determinative: Sinclair & Whittaker (2013) FLC ¶93–551 at [65]. That is especially so when the parties or one of them, such as the applicant here, merely swears to the issue. The phrase de facto relationship will mean different things to different people and that meaning may change depending upon the context in which the phrase is being used. Unless the basis for a party’s opinion about the nature of the relationship is explained by reference to the facts, acts and other circumstances of the actual relationship between the parties concerned, the opinion will generally be of no probative value. What might be found to be a de facto relationship between two particular people might lack many of the indicia that many other de facto relationships exhibit: cf. Onslow & Onslow at [97]-[104].Consideration The parties commenced a relationship with each other in 2014. Over time, the nature of that relationship has changed. At first, it was a relationship whereby the parties would see each other occasionally and engage in sexual relations. They soon became parents and their relationship changed. They remain parents of two children and so, in that respect at least, they remain in a relationship. I am satisfied that their intimate relationship ceased in January, 2019. Their personal relationship became more difficult and fractious in the circumstances I have set out above in June, 2020. It has broken down since and contact between the applicant and the respondent has become almost non-existent. That is notwithstanding they remain the parents of two children. The submissions of the parties each drew a narrow bright line at the point at which each party contended their relationship ended. I do not consider, however, that the facts permit the drawing of any bright line about that issue. As I have indicated above, over time the parties’ relationship changed, but it nonetheless continues. That the parties went out to dinner on one evening in mid-2019 is not inconsistent with the proposition that the relationship changed over time or that it waxed and waned. The real question is whether at any point over the period from early 2014 until either early 2019 mid-2020 or some other time, the parties had a relationship as a couple living together on a genuine domestic basis. For the Court to conclude that parties had a relationship as a couple living together on a genuine domestic basis it is not necessary for the Court to find that the parties shared a common residence: Fairbairn v Radecki at [28], [33], [35] and [39]. I am not satisfied that the parties did share a common residence between early 2014 until mid- 2020 as the applicant contends. I am satisfied that whilst he would from time to time stay at the respondent’s home in B Street, K Town when it suited him, it was not his residence. Questions of the difference between a postal address and a residential address to one side, his representations to banks and others, including the Department of Transport, the Australian Taxation Office and his employers are, on the balance of probabilities, a more accurate and reliable indication of his place of residence than his assertions in these proceedings. That he may have had some deliveries made to the respondent’s address indicates that he may have been present at times, as I am satisfied he was, but I am not satisfied that it demonstrates that it was his place of residence.