Swinbank & Stein
[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 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 Swinbank & Stein has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J:
The applicant and the respondent were in a relationship that commenced in 2014. They have two children together. These facts are uncontroversial. What is in controversy at this point is the nature of their relationship. The applicant contends that the relationship was a de facto relationship for the purposes of the Family Law Act 1975 (Cth). The respondent says that it was not.
To quell that controversy, on 8 October, 2021 an order was made by a judge of the Federal Circuit and Family Court of Australia (Division 2) listing the matter “for final Defended Hearing for five (5) days at 10.00 am on 20 – 24 June 2022 for the discrete issue of whether or not a de facto relationship exists”.
That is a curious order given that at the time the order was made, neither party was contending that the relationship then between the parties was a de facto relationship. What was intended, I suspect, was an exercise of the power set out in item 2(b) of rule 1.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) to make an order that part of the proceeding be dealt with separately and in particular, that the issue about whether a de facto relationship for the purposes of the Family Law Act 1975 (Cth) existed between the parties at the times contended for by the applicant be determined before any other issue.
These are my reasons for concluding that the applicant has not established on the balance of probabilities that such a relationship existed between he and the respondent for the period contended for by him, or at all.
Some procedural remarks
The applicant’s trial material consisted of two affidavits sworn by him, one filed on 5 February, 2021 and the other filed on 25 May, 2021. Annexed to the latter affidavit were statements and statutory declarations of many other people. This matter attracted some attention at the pre-trial directions hearing I conducted on 7 June, 2022. The question of the status of the statements and statutory declarations was raised by counsel for the applicant. He sought, informally, to have the status of the informal documents regularised by the grant of leave to the applicant to rely upon them. I declined to deal with the application informally and counselled the applicant’s lawyers to bring a properly constituted application (and by implication, supported by necessary evidence) for that leave, on notice to the respondent. Despite that, no such application was made until the commencement of the hearing, again informally and without evidence that would explain the applicant’s failure to file affidavits by the relevant witnesses and which might inform a favourable exercise of the discretion conferred, presumably, by rule 1.31(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
After hearing argument, for the reasons that I delivered at the time, I gave leave to the applicant to rely upon some, but not all, of the relevant statements. Those that I permitted the applicant to rely upon were sworn in the form of statutory declarations. Those that were not so sworn, not sworn at all or were illegible were excluded.
I also prevented the parties from tendering documents described as “tender bundles”, preferring to receive documents through the usual tender process once a witness had qualified a document. It was not clear to me why the documents referred to by the respondent in her affidavits were not annexed to those affidavits in the usual way. The reasons for the parties’ proposed course was not explained.
Finally, there were requests by both the applicant and the respondent to have witnesses give evidence by telephone or video link. The requests were not made within the time frame set out in the Family Law Rules. No explanation for not meeting the requirements of the Rules was offered by either party and the requests were rejected. The practical effect of this was the subject of an exchange between the Court and the applicant’s counsel at the commencement of his submissions as follows (T150 L34):
HIS HONOUR: Well, I might ask you about that. At the commencement of the trial, I was asked to grant leave for various witnesses to give evidence by telephone and because the requests were made so late in the day, and because the rules generally hadn’t been complied with in any respect really, I refused, and it seemed to have been left at that.
Some of the witnesses have been produced for cross-examination, some haven’t, but there has been no objection to your client’s evidence or the annexures to it, and similarly, there has been no objection to the affidavits relied upon by the mother, the witnesses of (sic) whom haven’t been produced. So, as far as I’m concerned, all of that material is in, but it’s in on the basis that, well, these people haven’t been cross-examined.
MR LENEHAM: I agree entirely, your Honour.
In the applicant’s case, there were 10 statutory declarations or affidavits and of those 10 witnesses, five were cross-examined. In the respondent’s case, there were 14 affidavits by witnesses. Of those, five were cross-examined. Whilst I have considered the evidence of all of the witnesses who were not cross-examined, unless I have mentioned their evidence specifically below, I have concluded that their evidence is of such little probative value as to not warrant express recitation in these reasons.
Consistent with the relaxed way in which both parties approached their preparation of the matter for trial is the state of their “evidence”. The currency of a court is evidence. It is trite to observe that absent agreement about relevant or necessary facts essential for the success or the claims of one or other of the parties or some of them, without evidence a court cannot find those facts. Facts may be found by inference from other facts that have been proved to the satisfaction of the Court, but the foundation of any factual finding, inferred or otherwise, is evidence. In this sense, assertion is not evidence. Conclusion is generally not evidence. Speculation is not evidence. Nor is argument or submission.
Evidence of facts can vary widely in its particularity or specificity. Generally speaking, the more critical that a fact is to the relief sought by a party, the better the evidence about that fact ought to be – both in terms of its reliability and its specificity or particularity. These two concepts are related but distinct. Observance of the rules of evidence laid out in the Evidence Act 1995 (Cth) provides a good foundation for a submission that evidence that meets its requirements should be seen as prima facie reliable. However, the Evidence Act does not assist so much with the second concept of specify or particularity. It is to this concept that a skilled legal practitioner can bring their knowledge and experience to bear to assist both their client and the Court with the fact finding exercise by doing more than simply transforming a client’s instructions and assertions into the form of an affidavit.
Here, the parties’ affidavits contain little by way of evidence – the applicant’s much less so than the respondent’s, which have more particularity about them. They are all, however, by and large assertion, allegation, conclusion and argument.
Ultimately, these are proceedings for the making of property adjustment orders between de facto spouses. But where the very existence of the relevant relationship is put in issue, the legal and evidential onus falls upon the party asserting the relationship to prove on the balance of probabilities the existence of a relationship and that it bore the necessary quality to engage the Family Law Act. The Court’s task is not a general inquiry into what orders might be best to do justice between the parties according to some ill-formed notion of what is fair. It is to identify the facts relied upon by the applicant, to determine if it is more likely than not that those facts are true and to then apply those facts to the task required by the Act.
The applicant’s first affidavit was prepared by a solicitor, although likely not with an eye to it being used as the applicant’s evidence at trial. Nonetheless, even though it was the first salvo in the battle, as it were, it would have been far more useful for the applicant (then and now) had it contained some particularity. Conclusory statements such as “[Ms Stein] managed the finances during our relationship. I regularly deposited my wages into [Ms Stein’s] account so she could manage our finances.” and “I carried out extensive renovations on the [B Street, C Street and D Street] properties.” beg many more questions than they answer. Other statements such as:
28.I did the following on the [D Street] property: replaced the patio roof, painting inside and outside of house, installed new flooring, clearing and gardening including removing trees, plumbing repairs.
29.I repaired the following on the [C Street] property: roof and chimney, painted inside and outside the house, installed new flooring, removed trees, minor repairs on the shed, extensive cleaning and plumbing repairs.
30.On the [B Street] property I renovated the bathroom, plumbing repairs, tiled, purchased fixtures including the dishwasher and oven, cabinet work in kitchen to install dishwasher, painted inside house, roof repairs, renovated laundry, tiled downstairs laundry, roof repairs for solar installation, installed air conditioning and heating, extensive yard work including building a chicken coup, cubby house, removal of trees, planting fruit trees, veranda repairs due to rotten timber, replace rotten timber on stairs, replace doors in house and garage.
31Both [Ms Stein] and I financially contributed to the renovations however I was responsible for carrying out the works on the properties.
do not advance the position very much. The questions still keep coming.
The applicant drew his second affidavit. It consists of a series of assertions and has a number of documents (including the statements of others I have referred to above) annexed to it. It is largely unhelpful. As counsel for the respondent put it when cross examining the applicant about the disposition of the nett proceeds of sale of a parcel of real property owned by the applicant (T13 L29):
Okay?---The money that I got paid from that, selling that house in my bank statements clearly says it goes into my account and then I transfer it into [Ms Stein]’s account within days.
Well, you say that, but you - - -?---No. My bank statement says that. I don’t say that.
You don’t describe the event. You don’t name your bank accounts. You don’t give any details. You just provide a whole lot of documents and apparently expect others to sort out the documents for you…
(my emphasis)
The applicant’s case has suffered because of its poor preparation and as these reasons reveal, ultimately his case fails for want of proof.
Notwithstanding what was glaringly inadequate preparation, the applicant, who was legally represented from a point well before the trial commenced, did not seek an adjournment to improve his preparation and thus, his chances of success. Perhaps more time would not have made it any better.
The respondent’s affidavits and her evidence generally are not much better. But she does not bear the onus of proving the facts the applicant must prove to achieve the outcome he seeks. Her case succeeds because the applicant’s does not.
The applicant was cross-examined before me. He revealed himself as an angry and frustrated man who seemed to have difficulty with the proposition that his claims in this matter should be subjected to scrutiny or challenge. His answers in cross-examination were often evasive and inflammatory. An example of the difficulty encountered in cross-examining the applicant appears from the following exchange with counsel for the respondent at the commencement of his questioning (T11 L39):
And in order to make a number of acquisitions during what you say was a relationship – and I will just take you to the things you have had to do – you’ve had to take out a number of loans, haven’t you, to acquire or a bit of work on your vehicle; that’s correct, isn’t it?---No, that’s incorrect.
Well, didn’t you take out a loan from the Commonwealth Bank and you gave the reason for having to take out the loan, vehicle repair?---It depends on which vehicle we’re talking about, your - - -
Well, you took out the loan. Which vehicle are we talking about?---Because I had a vehicle that had an accident and the insurance company paid me out and then - - -
Well - - -?--- - - - with that I bought - - -
- - - the question - - -?---Yes. Sorry.
Just stop. Which vehicle are you talking about? You’ve taken a loan that says vehicle repair. When did you take that loan out?---Yes. Sorry. For [Motor Vehicle 1], correct.
And when did you take this loan out?---Whatever it says on the loan application. I have no idea.
The respondent was also cross-examined. She too, revealed herself as an angry woman who seemed to struggle with the proposition that others would ever question her word. Some of her evidence was evasive and other parts of it was disingenuous. An example of the difficulty encountered in cross-examining the respondent appears from the following exchange with counsel for the applicant at the commencement of her questioning (T63 L22):
[Ms Stein], at paragraph 100 of your affidavit, you refer to the occasion [in late 2020], when [Mr Swinbank] attended your house - - -?---Mmm.
- - - and, among other things, you say in paragraph 100 that he was collecting minimal contents from the garage which mainly comprised the fishing lures, boxes of lures and alcohol drums to make alcohol. I just wanted to ask you firstly about the alcohol drums to make alcohol. That was [Mr Swinbank]’s habit; he was accustomed to making his own alcohol, wasn’t he?---The drums were from alcohol, like big ones, yes.
Big drums. And they were for the purpose of making his own alcohol, weren’t they?---No idea. I know that he liked to drink.
So you say in your affidavit they were alcohol drums to make alcohol?---Mmm.
That was the purpose of those drums and you’re aware of that, aren’t you?---That’s what I was assuming that they were for.
Well, you know that they were alcohol drums to make alcohol because that’s what you say in your affidavit, isn’t it?---Because they were a drum with a tap on it - - -
And - - -?--- - - - and I had seen many times on social media about him and alcohol, so putting two and two together, that they were alcohol drum.
So you knew that they were alcohol drums to make alcohol; correct?---Well, you would have to have - - -
It’s a yes or no - - -?---Then yes.
Yes?---Yes.
You knew that. You knew that he did, in fact, use them to make his own alcohol, didn’t you?---No idea, I’m sorry.
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.
The respondent swears that she met the applicant in 2014 in person in N Town after connecting with him using an Internet based dating application. She says that they saw one another two or three times at N Town in the first six months of their acquaintance, first had sexual relations about three months after meeting and only twice in that initial six months. She says that X was conceived on one of these occasions.
The respondent’s case is that the parties never lived together in the same residence. She characterises their relationship as, at best, a “casual sexual relationship” which lasted until early 2019. The respondent swears that at the time she met the applicant he was living between his residence in L Town and his sister Ms O’s house at R Street, P Town. It is a short drive between K Town and P Town and about an hour’s drive between K Town and L Town.
The respondent swears that the applicant would visit her approximately two to three times per year when he was off work. Thus, on her evidence, he visited her residence on about 10 to 15 occasions over the duration of their relationship. She says that he did not move into her residence, but maintained his own separate residence and never had a key to her home. She swears that he did not keep clothes or possessions at her home and that when he came to visit her he would bring a bag of clothes with him. She says that after they would have sex he would shower and leave or she would fall asleep and wake in the middle of the night only to find the applicant had left. Somewhat inconsistently, her evidence is also that he would sometimes stay overnight, but it was in the downstairs garage and not in her room, except for 2014 – 2015 when she had a boarder occupying the downstairs bedroom. At those times, he would stay upstairs with her. He would leave his vehicle at his sister’s place at P Town when he went away for work or other reasons.
I do not accept that respondent’s evidence about the number of times the applicant would visit her. I think that they were together more frequently than she would have the Court accept. Her own affidavit evidence is inconsistent with the proposition that the parties only saw each other two – three times per year. Her evidence about accompanying the applicant on fishing and camping trips tends to suggest that he was with her more than she would like the Court to accept. So too, her evidence about what she perceived as violence by the applicant towards her and the occasions on which that occurred. The number of occasions deposed to by her tends to suggest that the parties were together more often than two – three times per year.
Further, the respondent’s evidence in cross-examination falsified her affidavit evidence about the applicant having no possessions at her property. On her own evidence, he kept possessions in a shed on her property. The police had to escort him when he wished to remove them after the relationship had broken down. Her evidence about knowing nothing or very little about the applicant’s possessions at her house, including the alcohol drums and other possessions in the shed on her property was just not credible. Having said that, there is very little evidence that the applicant kept anything at her house. The respondent’s witness Ms Q gave evidence that she saw a “high-viz” shirt in the respondent’s bedroom and some men’s sneakers that she presumed belonged to the applicant. That is the extent of any evidence from witnesses who could be challenged that the applicant had any possessions at the respondent’s premises. The applicant did provide a statement from Mr S who said that he saw that the applicant had possessions at the respondent’s home, but he was not produced for cross-examination and could not be tested.
In favour of the proposition that the applicant resided with the respondent in K Town are some documents annexed to the applicant’s second affidavit of evidence-in-chief that records his address as B Street, K Town. In particular there is a tax invoice for some car parts, a tax invoice for a lawn mower and an unexecuted document entitled “Cash settlement release” the provenance of which is unexplained. There is also a document entitled “Borrower Acknowledgment” signed by the applicant and witnessed by the respondent, both signatures apparently having been applied in early 2019. There is an email chain showing that the applicant arranged for a delivery to B Street, K Town in 2017 of what appears to be a present for one of the children. There are also some other unspecific address labels. The applicant’s evidence explains none of these documents or the circumstances in which they were created.
However, over the period that the applicant contends he lived with the respondent, he has recorded on many documents an addresses other than the respondent’s as his residential address. For example, the applications made by the parties to register the birth of their children required each of them to provide their address. The respondent’s evidence explains what happened in relations to these applications. The children have the respondent’s surname. The respondent says that she “arranged for the children to have my surname due to the Applicant not wanting to live as a family and due to the children living with me”. The respondent gives no further particulars of that allegation. The applicant accepted that when each child was born, he signed the applications to register their births and included R Street, P Town as his address. He did not record the respondent’s address as his address.
Further, the evidence demonstrates that documents created by the applicant or for his purposes did not give the respondent’s address in K Town as his address. He used his L Town address, his sister’s address as his residential address and post office boxes as his postal address. For example, in early 2014 but after the date the applicant says that he started to live with the respondent, he applied for a loan from the Commonwealth Bank of Australia. He recorded his residential address as the L Town property and his postal address as a post office box in P Town. Later, in about 2018 he applied to the Commonwealth Bank for another loan to fund the costs of repairs to a vehicle he owned. He gave the bank his sister’s address at R Street, P Town as his residential address and the P Town post office box as his postal address. The application noted that he had commenced living at the P Town address from late 2012. As I have already recorded, he used that same address when signing the applications to register X’s and Y’s births.
When taxed with the loan application documents and the information that he had provided to the bank on each application, the applicant said (T16 L21):
Right. Well - - -?---I don’t know which place you’re trying to determine I live at. Now you’ve got three, so I’m confused. There is an application. Just because it’s an application doesn’t mean I’ve put the truth into it. It’s like your car licence. I have to say I live somewhere to own a car licence. Now I don’t have a car licence because I don’t have a place to live, because I don’t live at my sister’s, but I’ve lied since 2012 when I got first divorced and that’s where my mail goes from my first divorce and I’ve left it there, so now I actually have no place of residence because I can’t even use my sister’s address for mail, so now I can’t even have a licence. That’s why it’s a lie. I’ve never lived there, and I lied on my application for my loans. Yes, I have lied on them. But where else am I going to say I live? They ask for a place of residence when you ask for a loan otherwise you can’t get a loan.
The applicant’s evidence about always using his sister’s address at P Town as his address for mail is falsified by the information he gave in both the first and the second loan applications. He may have used a post office box for his mail, but that does not explain why he would use his sister’s address as his residential address.
Further, his assertion in the answer extracted above that he does not have a car licence because he has no place to live cannot be correct. Exhibit 5 is a copy of the applicant’s driver’s licence issued in mid-2016 and current until mid-2021. It has his sister’s address in P Town as his place of residence. On his case, at the time the licence was issued, he was living with the respondent in K Town. No reason was given, or is apparent from the evidence, to explain why he used his sister’s address rather than the address at which he now says he was living.
It is uncontroversial that the applicant did not receive any of his personal mail at the respondent’s address even though he could have done so. His postal address for such purposes was his sister’s address. No persuasive reason for that was given.
The applicant has made representations as to his relationship status in some documents. In his first loan application to which I have referred above, he said his status was “single”. In the subsequent application, he said it was “de facto”.
The applicant disclosed his income tax returns for the financial years ended 30 June, 2014 – 2020. In none of them was that part of the return dealing with details of his relationship status included. That part dealing with dependent children in the 2017 income year claimed no dependent children. The applicant’s evidence was that his accountant received his payment summary and details of deductions and then completed the return for the applicant. The applicant signed off the completed returns. As to his relationship status for taxation purposes, the applicant said in cross-examination (T21 L1):
When you advised your accountants for the preparation of your income tax returns you did not tell them you were in a de fact relationship with my client, did you?---I don’t know what I told them. If it says nothing on there I said no.
So you accept you didn’t tell them that you we 5 re in a de facto relationship?---Yes, I accept I didn’t tell them.
And you didn’t tell them in 2017 or 2018; is that correct? First of all, 2017 you didn’t tell them?---I have no idea. You’re telling me. You’ve got the statements. I 10 haven’t got them in front of me. I can’t tell you what’s on them.
Well, just backing up. You accept that you haven’t told your tax accountants that you are in a de facto relationship. Is that - - -?---Yes. Correct.
Thank you. And the reason you didn’t tell them you were in a de facto relationship is because you were not in a de facto relationship with my client, were you?---Incorrect.
I accept that during 2014 and into 2015, the respondent had a boarder who occupied the downstairs bedroom of her home in K Town. She received $150.00 per week rent from him. He is now deceased. Subsequently, she had students stay in her home to supplement her income and she has always had foster children staying in her home. The applicant accepted that the respondent had foster children in her home when he says they started to live together in early 2014. Despite that, he says that apart from making officers of the Department of Child Safety coffee on one occasion, he was never formally interviewed by the Department’s officers, notwithstanding that he was living in the respondent’s household. His evidence was that he did not inform the Department that he was a permanent member of the respondent’s household. Moreover, he said that he did not know what the respondent received by way of income for fostering the children.
It seemed to be generally accepted by the parties that to work with children or to say, live in a home where children are being fostered, one was required to have a “Blue Card”. Again, it seemed to be accepted by the parties that to obtain a Blue Card an application to the relevant government department was necessary. The evidence shows that the applicant did obtain a Blue Card, issued by the Department of Child Safety, but not until 2019. A couple of things can be inferred from this. First, whatever time the applicant was spending with the respondent in her home up to the point when the Blue Card was sought must have been insufficient to engage the Department’s requirement that the applicant have a Blue Card. Second, at some point prior to the issue of the Blue Card, the time the applicant was spending with the respondent in her home became sufficient to engage the Department’s requirement that the applicant have a Blue Card. The first is inconsistent with the proposition that the applicant was residing in the respondent’s premises and the second inconsistent with the proposition that the applicant only visited the respondent two to three times per year. Indeed, it was the respondent’s evidence that she asked the applicant to obtain a Blue Card in 2018 so that he could continue to spend time at her residence when she had foster children.
The applicant’s Blue Card was not produced in evidence. There is reason to believe that the parties’ evidence I have just recounted is inaccurate insofar as the timing is concerned. Annexed to the respondent’s trial affidavit is a “Change in carer circumstances” form directed to the Department of Child Safety, Youth and Women signed by the applicant in early 2020. The evident purpose of the form is to notify the Department of the applicant’s presence, at times, in the respondent’s residence. It records the following, “At the request of the department I am adding my name so I can visit my Kids.” This information tends to suggest that in early 2020, the applicant was a visitor to the respondent’s home. That is inconsistent with his assertion that he was living in her home and that the relationship did not come to an end until mid-2020.
The applicant called evidence from his sister to say that he did not live with her. Ms O swore that the applicant’s “permanent place of residence since 2014 has been B Street K Town”. She swore that the applicant and the respondent were in a relationship since early 2014. She says that the applicant “is a fly in fly out worker and when he returns home he often will bring [Ms Stein] and children out for a family dinner”. She does not say how often that occurred or in what circumstances. She swore that the applicant had his mail diverted to her post office box in P Town ever since his first relationship broke down “as it was easier to divert it to me so that I could open the important stuff and enable him to pay his bills on time. [Ms Stein] would not let [Mr Swinbank] divert the mail to her house as she did not want to deal with his maintainece (sic) paperwork from his previous partner”. Sadly, however, none of this was put to the respondent when she was cross-examined. One might have thought that if the applicant and the respondent had the type of relationship for which he now contends, then the respondent would have been the perfect person to receive his mail – she was financially astute as can be seen from the assets she had accumulated by 2014. More importantly, on the applicant’s case she was in receipt of all of the applicant’s income because he was depositing it into her account. If that is correct, it would not be practical for his sister to receive his mail to enable him to pay his bills. There is no evidence that Ms O would tell the respondent what needed to be paid for the applicant and when.
I do not accept Ms O’s evidence about why her brother maintained her post office box as his postal address. Moreover, her explanation does not illuminate why the applicant informed bodies such as banks and the Department of Transport that his residential address was her residential address when he apparently maintained a separate postal address.
Cross-examination of Ms O demonstrated a lack of precision about her evidence, particularly concerning the sale of the applicant’s house at L Town and what she alleged was the contribution of some undefined sum to the debt secured over the respondent’s house at K Town or any work done to it. That lack of precision and the lack of any particularity to the other more general assertions that she made meant that overall, I found Ms O’s evidence of no assistance in determining the issues in this case.
The respondent says that her pregnancies were unplanned and the applicant told her to have an abortion when she informed him of each of them. She says she received no support from the applicant during her pregnancies and the birth of the children, but he denies this.
The applicant’s case is that he was involved in the children’s day-to-day lives when he was home from work and living in K Town. He says that he would speak to the children daily prior to the parties’ separation. He gives no particulars or specific examples to support his claims. The evidence called by the respondent from Ms T is to the effect that when she interacted with the respondent and her children, the applicant was either never present or did not provide any assistance with children. These observations went unchallenged.
The respondent contends that she and the applicant and their children never lived “as a family”, whatever that means. She says that after X was born she told the applicant that if he wanted to move forward with a relationship with her, she wanted them to see a counsellor. She does not say why she made this demand of the applicant or why she thought it was necessary. In any event, he declined to see a counsellor as she suggested. Her request, however, is consistent with the respondent wishing for there to be a more committed and permanent relationship between she and the applicant. She said in evidence that she wished for such a relationship and her mother, in cross-examination, thought the respondent wished for that as well.
I accept the respondent’s evidence that she cared for the parties’ children following their births. She swears that the applicant was not involved in the children's day-to-day lives. I accept that evidence. I also accept that he spent time with the children from time to time, but on the evidence, I cannot make a finding about how often. I consider that it was more than the two to three times per year for which the applicant contends.
I am unable to accept the applicant’s claims about the level of his involvement with X and Y. On his own case, he has not spent time with the children since the point when he asserts that the parties separated. They are not included on his Medicare card as part of his family. There is no evidence of any formal attempts by him to spend time with them. If he was as devoted to his children with the respondent as he claims to have been, that he has pursued no contact with them seems remarkable. I prefer the respondent’s evidence about the applicant’s attitude towards the birth of the children and his subsequent interest in them. Her evidence is more consistent with the applicant’s conduct to which I have just referred.
The applicant asserts that prior to what he contends was the parties’ separation, he was the primary income earner for him and the respondent. He says that he deposited his income into the respondent’s account so that she could attend to the parties’ finances. She was, on his case, the financial manager for the parties. That is so notwithstanding his sister’s evidence that she received his mail so she could ensure his bills received attention. The applicant did not identify the amount of his wage, the account into which he deposited it or the account from which it came. No statements from any of the respondent’s banking accounts were put to her to demonstrate these deposits. I reject the applicant’s evidence about this matter.
The respondent swears that after X was born, she and the applicant agreed that he would pay her child support, on a private arrangement basis. She swears that the applicant started paying her irregular amounts of child support for X in early 2015. After Y was born, she swears that the applicant told her that he had worked out that she should receive about $250.00 per week for the two children because he was paying $220.00 per week for his other two children. The respondent swears that the applicant paid child support irregularly on a private basis until early 2020 at the average rate of about $228.00 per week. The respondent says that the payments ceased in early 2020 and so in early 2021 she made an application for an administrative assessment of child support against the applicant for X and Y. The Child Support Agency assessed the applicant as having to pay $297.71 per week. However, following the applicant contacting the Agency, the assessment has apparently been much reduced.
I accept the respondent’s evidence that she did not know how much the applicant earned or the identity of his employer. I accept her evidence that she did not share information about her earnings with him. She did not tell him how much she received for caring for foster children or from the students that boarded in her home. She did not give him details about the income and expenses of her rental properties. I also accept the respondent’s evidence that she and the applicant spent their separate incomes as each saw fit, without explanation, consultation or accountability to the other.
The respondent’s unchallenged evidence is that she never made financial provision for the applicant in the event that she was to predecease him. I accept that evidence.
The applicant claims that E and F spent every weekend with he and the respondent when he was home from work. He says that they also spent at least four weeks of the Christmas school holidays with him, the respondent and their children each year. He says that E and F had their own room in the house at B Street, K Town. I do not accept this evidence. I prefer the evidence of the respondent to the effect that they visited infrequently and when they did visit, they spent most of their time at Ms O’s home. I accept that when they stayed at the respondent’s address, they slept in a room in the downstairs part of her house. I do not accept the applicant’s evidence that E and F spent at least four weeks of their Christmas school holidays at the B Street home or with the applicant and the respondent together.
The respondent swears that the applicant never held her hand, he never kissed her (other than occasionally when they had sex), never called her romantic names or showed any form of affection towards her. She says that they never undertook activities like going on a walk together or going to the movies together. There is no evidence from any witness that gives any detailed evidence to the contrary. The respondent swears that the applicant only took her out to dinner on one occasion in 2019 for her birthday but it was she who organised it. I accept the respondent’s evidence about these matters.
The applicant sold his L Town property in 2017 for $375,000. He owed about $330,000 to his financier and so the nett proceeds of sale were about $45,000. The applicant says that he gave this surplus to the respondent and that the transfer is demonstrated in his bank statements. Although there are some bank statements annexed to affidavit, no attempt was made by him or his counsel to identify the relevant transfers. I could not identify them myself. His sworn testimony does not identify the relevant bank account or give any details of the particular transfer or transfers. The respondent swears that she was not aware of how much the applicant sold his property for until she received a copy of his tax return for the financial year ending 30 June, 2017 in 2020 as part of the disclosure process in these proceedings.
Although certain withdrawals from the applicant’s bank accounts were put to the respondent and were said to demonstrate her receipt of this surplus, her written evidence and her answers in cross-examination provided possible explanations for those withdrawals. In the absence of any direct and specific evidence from the applicant about these matters, I do not accept his general claim that he gave the nett proceeds of sale of his L Town property to the respondent. His allegation is, on his evidence, capable of corroboration, but none is produced.
The applicant claims that he carried out extensive renovations on the three Queensland properties owned by the respondent. Renovations were also carried out on the property in Brisbane but he says that contractors were engaged to do that work.
In respect of one of the properties in Queensland which the applicant describes as “the D Street property” he says that he:
(a)replaced the patio roof;
(b)painted the inside and outside of the house;
(c)installed new flooring;
(d)undertook gardening including removing trees; and
(e)undertook plumbing repairs.
The respondent accepts that the applicant replaced three sheets of roofing material in 2016 although she did not see him do it. She denies he did any of the other work. As to the painting, she says (without controversy) that the exterior of the home is brick and has never been painted. The other work was done as a result of insurance claims by tradesmen. I prefer the respondent’s more particular evidence about these matters than that of the applicant.
In respect of what he describes as “the C Street property” the applicant claims that he:
(a)repaired the roof and chimney;
(b)painted the inside and outside of the house;
(c)installed new flooring;
(d)removed trees;
(e)undertook minor repairs on the shed;
(f)undertook extensive cleaning;
(g)completed plumbing repairs.
The respondent denied that the applicant carried out any of this work. The respondent accepted that he may have removed some trees, but she could not remember. Perhaps if the allegation had been put with some specificity to her, she might have had a better recollection. The applicant’s evidence does not persuade me that he carried out any of the work alleged in respect of the C Street property.
On “the B Street property” the applicant claims that he:
(a)renovated the bathroom;
(b)undertook plumbing repairs;
(c)performed tiling;
(d)purchased fixtures including the dishwasher and oven;
(e)carried out cabinet work in the kitchen to install the dishwasher;
(f)painted the inside of the house;
(g)undertook roof repairs including preparation for solar installation;
(h)renovated and tiled the downstairs laundry;
(i)installed air conditioning and heating;
(j)completed extensive yard work including building a chicken coop, a cubby house no, removal of trees no and planting fruit trees; and
(k)undertaking repairs to the veranda, stairs and replacing doors in the house and the garage.
Of this work, I accept the respondent’s evidence that the applicant:
(a)repaired some leaks in the bathroom using a blue coloured “stop gap”;
(b)replaced the oven after he damaged the existing oven;
(c)did some painting inside the home in the hallway and scrapped off wallpaper before painting in 2015;
(d)might have watered the garden from time to time;
(e)built a chicken coop;
(f)planted two or three fruit trees; and
(g)replaced on piece of timber on the railing on the back steps of the home;
The applicant says that both he and the respondent financially contributed to the renovations however he was responsible for carrying out the works on the properties. He does not say how much was contributed for the renovations. Apart from an email trail about some roofing material, he produces no other documentary evidence to support his claims. He produces no photographs of the work that he said he did. His bank statements do not assist his claims.
The applicant called a number of witnesses to attest to their understanding of the relationship between the applicant and the respondent.
Ms U gave evidence that she attended Christmas lunch at Ms O's P Town home on Christmas Day, 2015. The applicant’s parents were present. She says that the applicant introduced the respondent to her as his partner. She does not say what words of introduction were used or whether the respondent heard what was said. In any event, later that evening the applicant and the respondent left together. She says that the applicant and the respondent were in a relationship together since 2014 but she does not set out the basis of her understanding about that or explain the nature of the relationship that she observed.
Mr V gave evidence that he has known the applicant for 20 years. He says that he would speak to the applicant weekly by telephone and the applicant would tell him about his children and the respondent and her foster children. According to Mr V the applicant would “always be down talking of how demanding [Ms Stein] is and the financial stress of bringing up foster children”. He also gave evidence that the children and the respondent had a holiday in Z Town with the applicant and visited him. He could not say when that occurred, but the children were very young. They had dinner and drinks at the applicant’s house (provided by his employer) in Z Town.
The applicant called evidence from Ms G. She is the mother of the applicant’s children E and F. She lives in Suburb J, some distance from K Town and seemingly a greater distance from L Town and P Town. Most of her affidavit evidence consists of her recounting in an indirect way what E and F have told her over the years. None of that evidence is given in direct speech so that I might be confident that what Ms G is reporting is indeed accurate. Ms G confirmed in her cross-examination that she prepared her affidavit by sitting down with E and F and asking them as many questions as she could about their recollections of their time at B Street.
Ms G gives some evidence of her own observations and experiences. She says that over the last 6 years (preceding mid-2021) she had dropped off and picked up E and F from “[Mr Swinbank] and [Ms Stein's] address at [B Street, K Town]”. She says that the applicant has always been there to greet the children or say goodbye to them. She says that his car was always there. She does not say, however, on how many occasions she did that or, save for Christmas time, what the arrangements were between she and the applicant for the children to spend time with her. Cross-examination demonstrated that there was probably no regular arrangement because Ms G agreed with the proposition that she and the applicant would text each other and work out what times she would deliver the children.
Ms G swears that she has text messages “that can confirm the number of times [E] and [F] have been to [Mr Swinbank and Ms Stein's] house. I can also provide evidence from my bank statements that we were in [K Town] on these occasions as we would stop at the service station in either [K Town] or [N Town] on the way there after dropping [E] and [F] off or on the way home after picking up the children”. The number of times evidenced by the text messages was not given in evidence and the text messages were not produced.
Ms G gave evidence that she and the applicant had an agreement whereby they alternated the care of E and F for Christmas. She says that from 2014 to 2020, they have stayed at B Street with the applicant and the respondent on their alternate year. She says that the length of time has varied but on one of the Christmas holidays, they stayed for approximately 5 weeks. She says that they have also stayed there on “several occasions” for other school holidays.
Ms G also gave evidence that the applicant picked up the children from her place. Sometimes he drove his car, sometimes it was the respondent’s car and sometimes the respondent accompanied him.
However, her own affidavit is somewhat inconsistent with her assertion that the applicant was always present when the children were dropped off or picked up. She gives some evidence of six times she dropped the children to the B Street address. On at least three of those occasions, the children were not greeted by the applicant, but by others. Cross-examination showed that aspects of her evidence – such as where the children stayed over the holidays –given in absolute terms in her affidavit, was not so absolute when examined closely.
I did not derive much assistance from Ms G’s evidence. I accept that it is consistent with the applicant and the respondent being in a personal relationship with each other. It might also demonstrate a closer association between them than the respondent would have me believe. But it is equally consistent with the respondent’s case that the applicant used her residence for the purpose of spending time with his children and the couple engaging in casual sex.
Mr W gave evidence in the applicant’s case. His written evidence was as follows:
I have known [Mr Swinbank] for 15 years, since 2006. I have known [Mr Swinbank] to be in, what I would say, is a married relationship with [Ms Stein].
I find this terribly disturbing that [Mr Swinbank] would have to prove he is in a relationship with [Ms Stein].
I have stayed at [B Street], at their house, on numerous occasions. I know [Ms Stein] asked [Mr Swinbank] to sell his house in [L Town] and pay for the house in [K Town], because it was easier to have the children there.
I have done numerous jobs on [B Street] for [Mr Swinbank] - installed-doors, lights, fans, helped [Mr Swinbank] renovate the bathroom. [Mr Swinbank] was the one who paid me for this while I was there.
I slept in [E] and [F's] bedroom, which the fostered kids complained they wanted and was not fair on them.
Mr W, however, did not give evidence of what it was that he observed that led him to the conclusion that the applicant and the respondent were in a “married relationship”. Cross-examination revealed that Mr W’s use of the term “numerous occasions” really meant three times or possibly four. He does not say when those occasions were. Otherwise, his evidence was bereft of any particularity and not corroborated by any of the applicant’s own evidence.
I found Mr W’s evidence of no probative value in relation to the issues that I have to decide.
The applicant asserts that the parties separated on 10 June, 2020. However, he gives little evidence about the circumstances that he says constitutes the parties’ separation. He swears that in early 2020 he asked the respondent for access to money as he wanted to buy a boat. He swears that the respondent “managed our finances which is why I had to ask her for access”. The respondent told him, he says, that they did not have any money.
The applicant swears that in early 2020 he asked the respondent about a bank account statement he had seen in their house for an ANZ bank account that he did not know about. He swears that the account had a balance of $150,000. He says that the respondent removed “the paperwork from our house that day”. She later denied that there was ever such an account and the applicant says she accused him of being delusional.
The applicant swears that in mid-2020 he saw the respondent depositing cash at the Commonwealth Bank of Australia. He says that he believes that she deposited the money into the children’s bank accounts although he does not reveal the source of his belief. She accepted that she made these deposits but asserted that it was routine. I reject her evidence about that. It was clear from her evidence that she was trying to dissipate some of the cash she held in her bank account. But that she was trying to do that, does not mean that the applicant’s other assertions about the parties’ relationship are valid.
The applicant claims that in mid-2020 the respondent told him she was sorry and did not want to separate over her lying about the bank accounts. He says that she showed him all the bank accounts and what was owing on the home loans. He claims that the respondent told him that she had withdrawn $50,000 from her bank account and given it to her parents.
The applicant swears that the respondent also told him that she had been receiving a single parenting pension from Centrelink. He believes that she may have been receiving the pension throughout the whole of their relationship, but again, he does not disclose the source of his belief.
The applicant swears that he returned to work and decided to end the relationship shortly after these discussions, but gives no other evidence about separation.
The respondent says that she and the applicant continued a casual sexual relationship until about early 2019 but it ceased at that time. She continued to permit the applicant to come to her home so that he could see and spend time with their children. She swears that the applicant sent her a message via his Facebook messenger in mid-2020 to the effect he wished to have nothing more to do with her.
The applicant asserts that “through bank statements which have account transfers between myself and [Ms Stein] where I paid for almost everything that we needed. There is too many statements to file at once so here is some of them where you can clearly see the amount I have spent at Bunnings and Woolworths bank transfers for bills and large cash amounts to [Ms Stein], childcare, Harvey Norman, [AA Company] for X’s birth, Holidays to [DD Hotel] and many more”. The statements themselves, however, do not support the applicant’s claims, apart from some transfers to the respondent. Consistently with the respondent’s claims, most of the transfers are described by the applicant in his own bank statements as child support. He does not explain that description.
The Law
The applicant seeks orders for property adjustment between he and the respondent pursuant to s 90SM(1) of the Act. Amongst other things, for the Court to have jurisdiction to make such orders, there needs to have been a de facto relationship between the applicant and the respondent for the purposes of the Act which has broken down.
Where such an application is made, the Court may declare that a de facto relationship existed, or never existed, between the applicant and the respondent: s 90RD of the Act.
A de facto relationship is defined in s 4AA of the Act. It relevantly provides:
(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.
The nature of the parties’ relationship is the focus of the Court’s enquiry for present purposes. Parties might have a relationship between them of some sort, but nonetheless not be in a de facto relationship: Fairbairn v Radecki [2022] 96 ALJR 529 at [29]. The matters to which attention is directed by s 4AA(2) of the Act are neither mandatory nor exhaustive: Onslow & Onslow [2016] FamCAFC 7 at [91].
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.
In reaching that conclusion, I take into account that the respondent’s evidence about the length of time spent by the applicant at her residence in K Town was not reliable and in my view, misleading. Nonetheless, the applicant’s evidence does not persuade me on the balance of probabilities that he shared a common residence with the respondent. It is more than likely, in my view, that he stayed at the respondent’s residence, as well as at his sister’s residence and, before he sold it, at his property at L Town when he was not otherwise at work or away camping or fishing.
I have set out the nature of the parties’ sexual relationship above. The respondent took the view that the applicant was attending to various repairs and the like to “get into [her] pants”. Her evidence was that she was content for that to happen while he continued to provide benefits to her. The evidence also establishes that she desired a more secure and permanent relationship with the applicant but that, I am satisfied, he would not commit to it. I accept her evidence about asking the applicant to go to counselling following X’s birth so as to improve their relationship. I accept that he refused to do so.
There was no financial interdependence between the parties, despite the assertions of the applicant to the contrary. Aside from meeting some very minor expenses for the respondent, the payments made by him to her were to discharge his obligations to support his children with her. There is nothing in the evidence to suggest that the slightly more than $70,000 he has paid her over the years exceeded what would otherwise have been his child support obligations.
The applicant sought to establish a case that his financial contributions improved the respondent’s financial position immeasurably and to an extent that she would not have been able to accomplish from her own resources. However, his argument is not made out on the evidence. I am not satisfied that whatever improvement there was in the respondent’s financial circumstances between 2014 and 2020, it could not have been achieved without the financial contributions the applicant claims he made.
The only evidence of knowledge by one of the parties about the finances of the other is the message sent by the respondent to the applicant in mid-2017 regarding his tax refund, and the respondent’s evidence that the applicant would complain to her that he was not paid regularly and was always chasing his pay. In my view, that single message and those discussions do not provide evidence of any intermingling of the parties’ finances or financial interdependence between them.
The parties owned no property together, real or personal. Nor did they contemplate acquiring any property together. There were discussions between the parties about the fact that the applicant had obtained a contract to sell his L Town property and he told her why he was selling it. However, those discussions are equally consistent with the parties being romantically involved but not living on a genuine domestic basis, as they are with them living together on a genuine domestic basis.
There is no evidence that the applicant made any provision for the respondent upon his demise. The respondent’s unchallenged evidence is that she deliberately made no such provision for the applicant upon her demise.
The parties did not share the use of property save for the applicant staying with the respondent from time to time as I have discussed elsewhere. He kept some minor possessions at her residence, but those were incidental to his visits and not indicative of any long-term residence. He may have purchased a lawnmower for use at her property (although he does not say so in his evidence).
There is no evidence suggesting or consistent with there being a commitment between them to a shared life together. They share only their children and they have each supported those children (at least until mid-2020). The respondent has always been the children’s primary carer and provided the lion’s share of financial support for them. Since separation, the applicant has taken no substantial steps to spend any time with them. As counsel for the respondent submitted, there is a complete absence of any evidence that would demonstrate a close and abiding relationship between the parties – no text messages or any other form of communication demonstrating love and affection or evidencing the facing of the day-to-day trials and tribulations of a shared life together.
For the reasons I have set out above, to the extent that others have perceived that the applicant and respondent were a de facto couple or were as if husband and wife, I am not satisfied by the evidence that there is any reasonable basis for their opinions. The opinions they hold are not explained by reference to any observations made by them.
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.
I certify that the preceding one hundred and eight (108) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett. Associate:
Dated: 14 September 2022
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