Tomson & MacLaren

Case [2021] FamCA 620

FAMILY COURT OF AUSTRALIA

Tomson & MacLaren [2021] FamCA 620

File number(s): HBC 595 of 2020
Judgment of: MCGUIRE J
Date of judgment: 27August 2021
Catchwords: FAMILY LAW – DE FACTO RELATIONSHIP – Where applicant seeks a declaration pursuant to s 90RD that the relationship was a “de facto relationship” – whether parties in a relationship as a couple living together on a genuine domestic basis – no de facto relationship established – application dismissed.
Legislation: Family Law Act 1975 (Cth) ss 4AA, s 90RD and 90SM
Cases cited:

Crowley & Pappas [2013] FamCA 783

Jonah & White [2011] FamCA 221

Sinclair & Whitaker (2013) FLC 93-551

Lynam v Director General of Social Security (1983) 52 ALR 128

Galea v Galea (1990) 19 NSWLR 263

Number of paragraphs: 121
Date of hearing: 26, 27, 28 July 2021
Place: Hobart
Solicitor for the Applicant: John Munro
Solicitor for the Respondent: Simmons Wolfhagen
Counsel for the Respondent: Michael Trezise

ORDERS

HBC 595 of 2020
BETWEEN:

MR TOMSON

Applicant
AND:

MS MACLAREN

Respondent

ORDER MADE BY:

MCGUIRE J

DATE OF ORDER:

27 AUGUST 2021

THE COURT ORDERS THAT:

1.That the Court declares that the Applicant Mr Tomson and the Respondent Ms Maclaren were not in a de facto relationship for the purposes of s 4AA and ss 90RD of the Family Law Act 1975 (Cth).

2.That the Initiating Application filed by the Applicant Mr Tomson on 3 July 2020 be dismissed.

3.Pursuant to rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tomson & MacLaren has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

McGuire J

INTRODUCTITON

  1. Mr Tomson is the Applicant in the substantive application filed 3 July 2020 seeking orders for property settlement pursuant to s 90SM of the Family Law Act 1975 Cth (‘the Act’).

  2. There is first a preliminary issue for the Court’s consideration in respect of its jurisdiction given that the Applicant claims a de facto relationship with the Respondent Ms Maclaren.

  3. The Respondent denies that any such relationship enjoyed by the parties achieved the status of a de facto relationship pursuant to the provisions of the Act.

  4. The Applicant is 59 years of age.  He is a farmer. He was previously married and says he separated from his former wife in 2011.  He was divorced in 2012.

  5. The Applicant lives at B Town on a farming property which he owned prior to the demise of his relationship with his former wife. 

  6. The…

Continue reading Tomson & MacLaren

Sign in free to access the full text

Details
AGLC
Tomson & MacLaren [2021] FamCA 620
Case
[2021] FamCA 620
Decision Date

CaseChat Overview and Summary

In the matter of *Tomson & MacLaren*, heard by McGuire J, the applicant, Mr Tomson, sought a declaration that he and the respondent, Ms Maclaren, were in a de facto relationship for the purposes of the *Family Law Act 1975* (Cth). The applicant bore the onus of proving the existence of such a relationship on the balance of probabilities.

The court was required to determine whether the parties lived together as a couple on a genuine domestic basis, and if so, for what period. This involved assessing various factors, including the duration of the relationship, the nature and extent of their common residence, whether a sexual relationship existed, and the degree of financial interdependence. A significant issue was the applicant's credit, with the respondent alleging he had been selective and misleading in his evidence and had created false documents.

McGuire J found the applicant to be an unimpressive witness, noting his lack of clear recollection and discrepancies in his evidence, particularly concerning the purchase of a property and financial contributions. While acknowledging some aspects that supported the applicant's case, such as the duration of the relationship, the existence of a child, and a loan provided by the respondent's mother, the court ultimately found that the applicant had not discharged his onus of proof. The court preferred the respondent's evidence regarding the cessation of the sexual element of the relationship in 2014 or 2015, her representations to Centrelink and the Child Support Agency, and the fact that both parties maintained separate residences throughout the period in question.

Consequently, the court declared that Mr Tomson and Ms Maclaren were not in a de facto relationship for the purposes of the *Family Law Act 1975* (Cth) and dismissed the applicant's initiating application.

Orders

Orders of the court

ORDERS

HBC 595 of 2020

BETWEEN:

MR TOMSON

Applicant

AND:

MS MACLAREN

Respondent

ORDER MADE BY:

MCGUIRE J

DATE OF ORDER:

27 AUGUST 2021

THE COURT ORDERS THAT:

1. That the Court declares that the Applicant Mr Tomson and the Respondent Ms Maclaren were not in a de facto relationship for the purposes of s 4AA and ss 90RD of the Family Law Act 1975 (Cth).

2. That the Initiating Application filed by the Applicant Mr Tomson on 3 July 2020 be dismissed.

3. Pursuant to rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tomson & MacLaren has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The Applicant, asserting a fact, namely the existence of a de facto relationship, carries an onus of establishing that there was a de facto relationship and to do so according to the requisite standard of proof being on the balance of probabilities.[6] It is not for the Respondent, and arguably logically impossible, to carry an onus to prove a negative being that the relationship did not exist.[7]THE EVIDENCE – CREDIT[6] Evidence Act 1995, (Cth) s 140(1) and (2).[7] Wellard & Mason [2021] FamCAFC 115 at [30].The Applicant The Applicant gave evidence by affidavit sworn or affirmed 15 December 2020. He was cross-examined extensively. Counsel for the Respondent puts the credit of the Applicant squarely at issue. Counsel asserts that the Applicant has been selective and misleading in his affidavit material and has also created false documents including the forging of the Respondent's signature in order to shore up or support his case. Counsel for the respondent argues that the applicant's case suffers under the principles in Jones v Dunkel[8] and/or the Elias Principle[9] where either the applicant could have adduced evidence from potentially corroborative witnesses, but without explanation, has not done so or, alternatively, has previously completed documents, the contents of which are now contrary to the assertions he makes before this Court.[8] (1959) 101 CLR 298.[9] Elias v Elias (1977) FLC 90-267. I had the advantage of seeing and hearing the Applicant give his evidence and be cross-examined. I did not find him to be an impressive witness. At the very least, the Applicant did not possess a clear or accurate historical recollection. His evidence in cross-examination when challenged as to historical facts and discrepancies in his material was often less than satisfactory. For example, the Applicant in his evidence in chief changed a date at [5] of his affidavit of his first meeting with the Respondent. Initially he said they met in ‘late 2010 early 2011’. That was amended to read ‘we met in 2011 in March or April, it was about Easter time’. In cross-examination he explained such an error in his sworn document as 'yes, it was a rushed application’. At [43] of his affidavit the Applicant deposes:In, or about 17 October 2016 [the Respondent] and I purchased a house at C Town. That is at D Street. We paid $165,000. It was run down and in disrepair and needed a general fix-up. I find this paragraph, assertion and its intent to be misleading. The evidence is that the title to the C Town house was at all times registered in the name of the MacLaren Family Trust. The purchase funds came from the MacLaren Family Trust (save and except an unresolved assertion by the Applicant that he contributed $10,000). The Applicant's counsel in his final address properly conceded that the tenor and content of this paragraph is misleading. The Applicant agrees that he was advanced monies from the MacLaren Family Trust totalling some $640,000. There remains a dispute as to the amount owing and the amounts that the Applicant claims to have repaid. At [59] of his affidavit the applicant deposes: I paid [the Respondent] back funds for that loan. [The Respondent] would sign receipts for those payments Please find attached to this my affidavit and marked Annexure H receipts for payments made to [the Respondent]. …

Decision

Reasons for decision

Given the often conflicting indicators in this matter, there are, however, some public aspects of the relationship which support the Applicant’s case. For instance, the Respondent's mother gave evidence to making a personal loan to the Applicant for the purchase of a motor vehicle in about 2017. This was well after her daughter’s own evidence as to the demise of any relationship with the Applicant and describing the previous relationship as 'toxic'. The Applicant argues, with some merit, that loan some two years later by the Respondent's mother is inconsistent with the respondent's own evidence as to the status of the relationship.Conclusion as to whether the parties lived in a de facto relationship and, if so, for what period of time There are aspects of this matter which tends towards the Applicant’s case that the parties lived in ‘genuine coupling’ or committed de facto relationship until late 2019 as he asserts. Arguably, the indicators might be stronger in respect of the period until early 2015 although, of course, the Applicant himself maintains that the relationship was a committed, public, and mutually interdependent one until November 2019. Importantly, he does not depose to any significant changes in the relationship from early 2015, except of course, the birth of X. However, there are yet other aspects of this relationship which do not support the Applicants assertion of a committed de facto relationship at all. It is worthy of repetition by way of emphasis in these Reasons that it is the Applicant who makes the assertion of fact of a de facto relationship and therefore carries the onus of proof on the balance of probabilities. Further, experience suggests that simply because the relationship between these parties had unusual aspects then this is not determinative of there either being or not being a de facto relationship pursuant to the Act. The factors that lend towards there being a de facto relationship as asserted by the Applicant include the following:(i)The relationship in some form or other endured for some duration, and probably from about September 2011;(ii)There is a child of the relationship born in 2014; (iii)The relationship in some form continued for a number of years after the Respondent asserts its demise in early 2015 in circumstances where she describes it as a 'toxic' relationship as of 2015;(iv)The relationship was sexual and apparently monogamous albeit at least until 2015;(v)The Respondent's own mother provided a personal and unsecured loan to the Applicant some two years after the Respondent herself asserts the demise of a 'toxic' relationship;(vi)The Respondent herself concedes that the parties continued to take holidays together, including with members of the her own family and with X for a number of years after the time she asserts to be the end of the relationship; (vii)The Respondent herself concedes that she remained a frequent, although not as frequently as asserted by the Applicant, visitor to the respondent’s property following which she says was the end of the relationship, including staying overnight;(viii)There is no evidence of either party re-partnering prior to the date that the Applicant says the relationship ended in or about November 2019; and(ix)There is some evidence, despite my findings in respect of Mr M's evidence, to support the Applicant’s assertion that the Respondent removed documents from his home in that she concedes that she did remove his telephone for a period of some three days.

Ratio Decidendi

Legal Principle Established

Ms AA provided an affidavit for the Respondent sworn 16 December 2020. She has known the Respondent only since January 2019. Her daughter attends the same infant schools as X. She deposes to having met the Applicant only on one occasion being at X's fifth birthday party.CIRCUMSTANCES FOR CONSIDERATIONThe duration of the relationship The Applicant is uncertain and vague as to the date of the commencement of what he says was a relationship. He asserts an earlier meeting date than does the Respondent who was consistent in her evidence that the parties met at a bar together with the Applicant’s sister in September 2011. Little turns on this date. Significantly, however, the Applicant says that the relationship continued until November 2019. He says that it was a de facto relationship for its duration until that time in the sense of being committed, sexual, effectively sharing joint residence, and financial interdependent. Relevantly the Applicant himself adduces evidence from Ms P who deposes that the Respondent asked her to sign a document on 17 April 2019 denying any de facto relationship. The Respondent says that the relationship never achieved the status of a de facto one. She describes it as 'dating'. In any event, she says that the sexual element of the relationship ceased in the 2014 or 2015. She evidences applications by her for child support assessment and Centrelink benefits in early 2015. Importantly, the Applicant does not disclose in his trial material that he was the recipient of an application for child support assessment in early 2015 and received frequent notifications and assessments thereafter, although, he does reference the child X (DOB … 2014) in detail. Consequently, the Applicant's credit suffers by reason of this omission and his vagueness/uncertainty as opposed to the evidence of the Respondent and I find as persuasive the evidence of the Respondent’s representations to Centrelink and the Child Support Agency generally and specifically as to the duration of the relationship, whatever its status. The nature and extent of their common residence Each party owned and occupied their own residences prior to their meeting in September 2011. They maintained those separate properties throughout the relationship. There was no purchase or otherwise occupation of any other residence or property by them and despite the Applicant’s discredited evidence and assertions in respect of the purchase of the house at C Town. Neither party sold or otherwise relinquished their own residence. Each of the parties concede that they on occasions stayed at the other party’s home. The Applicant asserts a greater frequency than does the Respondent. Each adduces evidence from various witnesses in support of his or her assertion. The nature of such evidence is, as is common, of little probative utility given that it relies on historical recollection and is partisan and generally suffered under cross-examination as to recollection and detail. Importantly for my determination, is the fact that each retained their own residence and no joint home was purchased. In matters of credit and historical recollection I generally prefer the evidence of the Respondent and do so in respect of the issue of staying at each other's residence to be less frequent than that asserted by the Applicant. Notably the Respondent was in employment in Hobart until shortly prior to the birth of X who then attended pre-school care and school from an early age in Hobart which gives some support to the Respondent’s evidence. The Applicant’s farming property and home is approximately one hour travel time from Hobart.Whether a sexual relationship existed