THORBURN & AHERN (No.2)

[2018] FCCA 3443

FEDERAL CIRCUIT COURT OF AUSTRALIA

THORBURN & AHERN (No.2) [2018] FCCA 3443

Catchwords:
FAMILY LAW – Property division – whether a de facto relationship existed – none did.

Legislation:

Family Law Act 1975, ss.4AA, 90RD, 90SM

Cases cited:

Thorburn & Ahern [2018] FCCA 2975

Applicant: MS THORBURN

Respondent: MR AHERN

File Number: MLC 10550 of 2015

Judgment of: His Honour Judge Wilson

Hearing date: 24 October 2018

Date of Last Submission: 24 October 2018

Delivered at: Melbourne

Delivered on: 26 November 2018

REPRESENTATION

Applicant: In person

Solicitors for the Applicant: None

Respondent: In person

Solicitors for the Respondent: None

DECLARATION

No de facto relationship existed between the applicant and the respondent.

ORDERS

This proceeding is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Thorburn & Ahern (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 10550 of 2015

MS THORBURN

Applicant

And

MR AHERN

Respondent

REASONS FOR JUDGMENT

1. Following the delivery of reasons on the parenting aspects of the litigation between the parties in this case,[1] I indicated that a decision on the division of property would be given at a later date.  These are my reasons in respect of the property issues. 

   [1] Thorburn & Ahern [2018] FCCA 2975

2. When the mother filed her initiating application to commence this proceeding, in paragraph 8 of the final orders sought she indicated that she sought a division of all assets of the relationship on a 50/50 basis. When the mother amended her initiating application, she sought orders in the nature of declaratory relief pursuant to s 90RD of the Family Law Act (“Act”) to the effect that a de facto relationship existed between the applicant and the respondent, that it commenced in March 2007 and ended in January 2015 and that the applicant made substantial contributions to the welfare of the family including substantial contributions in the capacity of home maker and parent during the currency of the de facto relationship.  She sought orders for the respondent to pay her such money as the court considered fair and equitable and that the respondent forthwith transfer to her the real property known as and situated at Property A, Victoria on trust for sale and upon sale, payment to her of the net proceeds after sale expenses and the discharge of the mortgage.

3. In her affidavit affirmed 9 November 2015, the applicant stated that she and the respondent commenced a de facto relationship in 2007.  She was a minor at the time.  She was able to pinpoint that as the date of the commencement of what she said was their de facto relationship because, so she said, that was the first occasion when she and the respondent had sexual intercourse.  In the same affidavit she affirmed that the de facto relationship ended on 31 December 2013.  In a different affidavit she said the de facto relationship ended on 1 January 2015.

4. Before turning to the details of the nature and extent of the alleged de facto relationship, it is important to immediately point out that the respondent denied the existence of any de facto relationship.  He said they did not cohabitate.  He admitted that there were episodes of a physical encounter.  However, he said that there was no commitment to one another.

5. Nowhere in the applicant’s material did she develop the details of the de facto relationship that she said existed.  It fell to her to prove the existence of that relationship.  In my opinion she failed to do so.  In consequence I will not make the declaration sought by the applicant with the consequence of this proceeding for alteration of property interests is dismissed.

6. Under s 90RD of the Act where an applicant seeks orders pursuant to s 90SM for the division of assets, the court may declare that a de facto relationship existed or that it never existed between the applicant and the respondent.

7. Under s 4AA of the Act, a person is in a de facto relationship with another where those persons are not legally married to each other, those persons are not related by family and, having regard to all the circumstances they have a relationship as a couple living together on a genuine domestic basis. The Act recognises that two persons of the same sex can form a de facto relationship.

8. For the purposes of ascertaining whether a de facto relationship exists s 4AA(2) sets out a collection of indicators. They are not determinative of the matter because the circumstances pointing to the couple having a de facto relationship “may include” all or any of the matters recorded in s 4AA(2). They are –

   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 the property;

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

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

   h)the care and support of children; and

   i)the reputation and public aspects of the relationship.

9. The related aspect of this litigation, the parenting aspect, related to two children born of this couple.  In separate reasons I have addressed the parenting dispute that exists between the parties.  I do not repeat my observations there set out.

10. The applicant bore the burden of establishing the existence of the de facto relationship in issue in this case. She did not address any of the matters set out in s 4AA. She asserted without proof that the relationship commenced in March 2006 and ended on a date in either 2013 or 2015. She gave no details of the nature and extent of their relationship. She gave no details of the nature and extent of their common residence except to say that for a period she lived in a stated address. She gave oblique reference to the existence of a sexual relationship. She gave next to no evidence about the degree of financial dependence or interdependence or about any arrangements for financial support between them. So far as the ownership use and acquisition of property was concerned the evidence pointed to the respondent owning the real estate where he lived. Beyond that, the evidence was extremely scant and did not persuade me on the balance of probabilities about aspects of its use, ownership and acquisition. So far as the degree of mutual commitment to a shared life was concerned the applicant gave next to no evidence and none that I regarded as sufficient for the purposes of the balance of probabilities.

11. A great deal of evidence in this case was addressed to the question of support of the children.  That was taken into account in my decision concerning parenting.

12. There was no evidence about the reputation and public aspects of the relationship.

13. Under s 4AA(4) of the Act I was entitled when determining the existence or otherwise of de facto relationship to attach such weight to a matter as appeared to me to be appropriate. When taken in the aggregate or individually the applicant’s evidence in this case was seriously defective.

14. This court’s jurisdiction in respect of de facto relationship commenced in 2009.  In this case the applicant asserted the existence of a de facto relationship that commenced, on her version of events, in 2007.  Insofar and to the extent that the applicant relied on the periods of cohabitation that pre-dated the commencement of this court’s jurisdiction, then those dates have been ignored for the purposes of the calculation.

15. However, I was not persuaded on the balance of probabilities that in this case the applicant demonstrated the existence of de facto relationship at any ascertainable period of time.  In short, the evidence did not persuade me to the requisite degree that a de facto relationship existed. 

16. The respondent challenged the existence of the de facto relationship.  It could not be said that the applicant was not on notice about the significance of the evidentiary matters that fell for determination in this case.

17. In those circumstances, I declare that a de facto relationship did not exist and has never existed between the applicant and the respondent for the purposes of the Act.

18. In those circumstances this application for a division of assets in the manner contemplated by the applicant failed.

19. In addition, there was no evidence in the nature of information by which I could be satisfied that the applicant made a contribution in any proportion, whether financial or non-financial in nature, capable of supporting her claim to a division of assets in this case.

20. The financial statements filed by the parties revealed that both were at all relevant times in a substantially straitened financial condition.  Evidence from a valuer was filed in affidavit form.  That attested to the value of certain real estate owned by the respondent in the sum of $225 000.  No information was given about the net equity position in respect of that property.

21. This case had a lamentable history.  It began in November 2015 and was only resolved in October 2018.  The case had an extraordinarily large number of appearances before me necessitated largely by the respondent’s approach to this litigation.  He basically did not participate in it.  Despite several attempts to procure the resolution of this case no settlement was achieved from its commencement.  In the other reasons in this case, the litigation guardian gave evidence of the threats made by the respondent to the personal safety of the litigation guardian.  At all times the parties have conducted this case with a focus on the mother’s application for an order for sole parental responsibility of the children.  She obtained that.  The parties have not meaningfully agitated property issues.  I inferred that there was no particularly relevant pool of assets for division.  No one adduced any proof of significance about them.  The mother chose not to meaningfully advance her claim to a division of assets in her favour.  Of course, that was her prerogative.  Instead she chose to agitate the parenting aspect of the case which she did, as it happens successfully.  But in this property aspect of the case, she adduced next to no evidence and did not persuade me on the balance of probabilities of her entitlement to relief.

22. For those reasons I have made declaration above.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson

Date:     26 November 2018