Tomson & MacLaren
[2021] FamCA 620
•27 August 2021
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
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’).
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.
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.
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.
The Applicant lives at B Town on a farming property which he owned prior to the demise of his relationship with his former wife.
The Respondent is 48 years of age. She formerly worked for a Government organisation. She is now a full-time parent.
The parties are the parents of a daughter X born in 2014, now aged six years. X continues to live with the Respondent. It appears not disputed that X's time with the Applicant has been sporadic at least of late.
The Applicant has two adult daughters from his previous marriage. The Respondent has no children other than X.
The Respondent lives in her home in Suburb F which is agreed she owned prior to the parties meeting.
The Respondent is a beneficiary, trustee and former appointer of the MacLaren Family Trust. Her parents are also trustees and beneficiaries of that trust.
It is conceded that the Respondent made a significant injection of funds into the corpus of the trust albeit the precise amount not evidenced at this stage of proceedings.
The Applicant’s case
The Applicant says that he first met the Respondent at around Easter of 2011. He said in cross-examination that between March and September 2011 he and the Respondent had a ‘fling’, but became 'romantically involved' from September 2011. He says that the sexual relationship between them commenced in March 2011.
The Applicant indicates that the first meeting of the Respondent was at a bar and that he was in the company of his sister. The Respondent says that this was in September 2011.
The Applicant says that from the commencement of their relationship, at least from September 2011, the relationship was monogamous and that the parties would variously stay together at his property at B Town or the Respondent’s home in Suburb F.
The Applicant says that the parties publicly exposed and acknowledged their relationship. He says that he was treated as a member of the Respondent’s family including being invited on family holidays, special family occasions and anniversaries.
The Applicant says that the parties travelled overseas together including with X from her birth.
The Applicant acknowledges that he received an advancement of approximately $640,000 from the MacLaren Family Trust. His affidavit acknowledges that the advancement was by way of loan. There remains a dispute between the parties as to the amount remaining owing in respect of that loan. The loan was obtained to make a property settlement payment on the Applicant's former wife in the sum of approximately $375,000 together with a further amount of $333,742 required to 'refinance' his mortgage so as to provide a release under that mortgage for his former wife.
The Applicant deposes in his affidavit of 15 December 2020 at [43] – [44] the following:
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 have renovated that property. I completely repainted the inside of that house with [the Respondent].
In his evidence the Applicant suggests that the Respondent, together with X, would live at his B Town farm approximately 80 per cent of the time. He says that the Respondent used his farm as a postal address.
The Applicant argues that the Respondent is motivated by financial considerations in her denial of there being a de facto relationship.
The Respondent’s case
The Respondent denies that she and the Applicant were in a de facto relationship. She admits a relationship between about September 2012 and August 2015. She consistently in her evidence described that relationship as one of 'dating'.
The Respondent concedes that following August 2015 she continued to associate with the Applicant, but says that she did so only for the benefit of X. She concedes that the parties continued to enjoy some holidays together with X and that the Applicant attended the family functions and anniversaries, but she says that he did so only by invitation.
The Respondent says that the sexual relationship between them ceased in 2015.
The Respondent denies any significant joint purchases with the Applicant. Specifically, she says that the C Town property was purchased by and registered in the name of the MacLaren Family Trust.
She does not concede any major contributions by the Applicant over and above some minor and unprofessional assistance with rectification work to the C Town property.
The Respondent says that she has always maintained her own residence and denies the extent of her mutual sharing of residences claimed by the Applicant.
The Respondent says that she and the Applicant have always remained financially independent save and except for 'commercial' type loans between them which are documented by either loan agreements in respect of the larger amounts or by way of loans and repayments evidenced on bank statements. She says that travel expenses and other expenditure were shared equally to the stage of later detailed financial and precise reconciliations.
The Respondent says that any public recognition of her relationship with the Applicant was only one of them 'dating'. The Respondent says that public records including taxation documents, Centrelink applications, and child support applications dating from 2015 corroborate her claim that the relationship, such as it was between herself and the Applicant ceased in about August 2015, but was never, in any event, a relationship of commitment in the sense of a de facto relationship.
The Respondent similarly suggests that the Applicant is motivated in his application by financial motives.
RELEVANT LAW
Section 90RD(1) of the Act provides that the Court may make a declaration that a de facto relationship existed, or never existed, between two persons.
Section 90RD(2) provides further that a declaration as to the existence of a de facto relationship may also declare any or all of the following:
(1)the period, or periods of the de facto relationship for the purposes of paragraph 90SB(a);
(2)whether there is child of the de facto relationship;
(3)whether one of the parties to the de facto relationship made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c);
(4)when the de facto relationship ended;
(5)where each of the parties to the de facto relationship was ordinarily resident during the de facto relationship.
Section 4AA provides:
Meaning of de facto relationship
(1) A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b) the persons are not related by family (see subsection (6)); and
(c)having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has effect subject to subsection (5).
Working out if persons have a relationship as a couple
(2) Those circumstances may include any or all of the following:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g)whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h) the care and support of children;
(i) the reputation and public aspects of the relationship.
(3)No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4)A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
(5) For the purposes of this Act:
(a)a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and
(b)a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.
In Crowley & Pappas [2013] FamCA 783 Tree J identifies the difficulty for courts in determining whether or not there is a de facto relationship given the plethora of factors that might argue for or against such a relationship. At [8] his Honour says:
Those provisions, or their state counterparts, have been the subject of considerable judicial discussion, principally in an attempt to more precisely analyse what will comprise “a couple”. Much of that analysis seems to have its genesis in the difficulty in satisfactorily distilling the essence of such a common, everyday concept. From those decisions the following propositions may be stated:
(a)whether a de facto relationship exists or not is a question of fact, not a matter of discretion;
(b)a de facto relationship does not need to be akin to a marriage[1] although the nature of the association involved in a marriage relationship may be instructive;
(c)the parties determine the nature of their relationship and it may evolve and alter, even dramatically, over time;
(d) there need not be full time living together;
(e) the relationship may be unhappy, but still subsisting;
(f) sexual or other exclusivity is not necessary;
(g)the gist of the inquiry is the degree to which parties have merged their lives into one.[2] That connotes financial, emotional and physical interdependence. (footnotes omitted)
[1] Moby v Schulter (2010) FLC 93-447 at [163]-[164] per Mushin J.
[2] ibid at [60] and [67].
As put to each counsel in their final submissions, it is entirely plausible for each of the parties to have a different view or understanding of the nature of their relationship. That is, one person may believe that they are in a relationship which satisfies the status of 'de facto' and the other not so. The Full Court in Sinclair & Whitaker (2013) FLC 93-551 noted:[3]
Given the nature of the definition of a de facto relationship in the Act, the ultimate decision as to whether there is a de facto relationship in any given time is a matter for the court and not a matter for the parties. Although their perception of the nature of the relationship is a relevant matter, it is not determinative.
[3] At paragraph 65.
Each counsel in the matter now before me, however, urged me to make findings of credit, or lack thereof, so as to assist me in my determination as to the status of the relationship between the parties.
In Jonah & White[4]Murphy J observed at [8] and [10]:
The issue here, in my view, is not so much the veracity or reliability of the parties’ accounts of events, but rather, the picture presented by the totality of them and the conclusion/s resulting therefrom.
… I consider that the evidence of each of the parties was affected significantly by the fact that their recollection now, in respect of events past, was refracted through the prism of their own perceptions of the relationship and of the varying degrees of disappointment felt by each at its demise …
[4] [2011] FamCA 221 at [65].
At [60] in Jonah & White (supra) Murphy J opined:
In my opinion, the key to that definition [de facto relationship] is the manifestation of a relationship where “the parties have so merged their lives that they were, for all practical purposes, 'living together' as a couple on a genuine domestic basis”. It is the manifestation of ‘coupledom’, which involves the merger of two lives as just described, that is the core of a de facto relationship as defined and to which each of the statutory factors (and others that might apply to a particular relationship) are directed.
Similarly, before the introduction into the Act, Fitzgerald, J in Lynam v Director General of Social Security[5] where His Honour was required to determine whether the parties were living together on a bona fide domestic basis, noted:
.. Each element of a relationship draws its colour and its significance from the other elements, some of which might point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate any individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of opposite sex meets the statutory test.
[5] (1983) 52 ALR 128 at page 131.
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]. …
Included in Annexure H is a document purported by the Applicant to be a receipt signed by the Respondent and himself. The Respondent denies the signature to be hers. The document references a sum of $45,000 and ‘G Bank account’. It purports to be a receipt from the ‘MacLaren Family Trust’. It is dated ‘1 January 12’. If, as I understand it, the Applicant asserts that an advancement of $640,000 was made to him from the MacLaren Family Trust in 2012 then it is simply chronologically impossible that he should be making a repayment in cash of $45,000 on 1 January 2012. The Respondent’s unchallenged evidence is that:
139. I did loan [the Applicant] several amounts of money over time, in two categories, short term loans and a long-term loan, they were as follows:
a. Loaned to [the Applicant]:
i. $375,000 on 17.10.2013
ii. a further $444,724 to pay out his mortgage
iii.various other short-term small loans, all of which have been repaid as a priority before making long term loan repayment.
iv.As at 1.10.2014, we did a tally up and signed the loan agreement, for the balance $640,000. [The Applicant] signed this on 1.10.2014.
b. [The Applicant] has repaid toward the long term loan:
i. On 8.1.2014, $65,000 into the Family Trust G Bank A/c
ii. On 6.6.2014, $106,500 in the Family trust G Bank A/c
iii. On 10.3.2016, 100,000
iv.On 3.10.2016 $10,000, I asked him to pay this direct to the vendor in the Maclaren family house purchase as we didn’t have the cash readily available. It was a repayment of the loan though.
v.On 6.1.16 $17,500, paid to my bank account, then transferred to the Family Trust account.
vi.On 17.10.2016 $2,500 paid to my bank account, then transferred to the Family Trust account.
vii. 20.12.17 $100,000
viii. 10.12.2018, $30,000
ix. 8.10.19, $10,000
Annexed to the Respondent’s affidavit is a loan agreement dated 1 October 2014 acknowledging the initial advancement as ($375,000) in October 2013 and signed by the Applicant.
The Respondent says that the document referred to in annexure H is concocted and denies her signature. She says that no sum of $45,000 was received on or about 1 January 2012 or at all. The Applicant was cross-examined in detail about this. He maintained the legitimacy of the receipt. Further, he gave evidence that he was present at the time of the deposit by the Respondent's mother into the G Bank with the implication, at least, of contemporaneity with the receipt and the deposit. The plausibility of a deposit being made directly into the branch of the bank on a New Year’s Day public holiday is dubious at best. Further, and in rebuttal, the Respondent’s mother gave clear and concise evidence that no such transaction occurred and that she neither received nor deposited an amount of $45,000 or any cash from the Applicant. I found her evidence to be clear, concise, consistent and impressive.
The Applicant has produced a number of his tax returns, but not others. He concedes that he did not note the Respondent as his de facto spouse. Interestingly, the documents provided seem to not include the usual and required section for the notification of spouse. In any event, he deposes that he acted on the advice of his tax agent/accountant not to disclose the Respondent as his spouse. He did not, however, adduce evidence from his tax agent where such evidence, if truthful, may have assisted his case. As such, the inference available to me pursuant to Jones v Dunkel (supra) was raised by the Respondent's counsel with some merit. Alternatively, the Respondent argues that the Applicant was, in fact, being honest not noting her as his de facto spouse where to claim so now is disingenuous in the sense contemplated by the Elias principle and later, albeit not achieving the status of ‘principle’, in Jordan v Jordan (1997) FLC 92-736.
The Applicant claims that he made out a Will including the Respondent as a beneficiary. He has been unable to produce the Will and claims that it was removed surreptitiously by the Respondent, together with numerous other documents, from his home. He says that he completed the Will himself from a Will Kit obtained from the H Town Post Office. His evidence is that the Will was witnessed at the H Town Post Office, but interestingly he was clear in his evidence that only one person apparently witnessed the document which, in any event, would seem to invalidate it. The Respondent denies the removal of a Will or any documents from the Applicant's home, although she does candidly concede that she removed his telephone for a period of three days. The Applicant produces no copy of the asserted Will or no corroborative evidence as for instance from the asserted witness.
The Respondent adduced evidence from Ms J in her affidavit filed 21 December 2020. Ms J deposes that she is a Facebook friend with the Applicant and that on or about 5 February 2020 she received a Facebook notification advising that the Applicant had updated his relationship status from single to 'is in a civil partnership'. This was at a time roughly contemporaneous with the commencement of these proceedings and some three months after even the Applicant himself says the relationship between he and the Respondent had ended. The Applicant’s responses and explanations in cross-examination were neither persuasive nor satisfactory.
At Annexure H of his affidavit the Applicant also provides a receipt dated 15 September 2016 for an amount of $18,000. He says that the document carries both his and the Respondent's signature. The Respondent denies that this is her signature. The purported receipt references the amount being for 'C Town'. The evidence, however, suggests that a contract for the purchase of the C Town house was not signed until October 2016. Similarly, also at Annexure H, the Applicant produces a document from G Bank being a deposit record. It is dated 10 March 2016 for a deposit amount of $100,000. In handwriting on the document (but perhaps with the last word being in different pen) appears 'loan repayment Mr Tomson + HOUSE’. Again, it is generally agreed that the house was not purchased until some seven months after March 2016. The Applicant conceded in the witness box that the word 'house' ‘looks like my writing’.
The Applicant maintains that the parties were in a de facto relationship until 2019. It is not disputed that on 8 December 2020 he lodged a notification with the Department of Centrelink in respect of 'relationship details’. He claimed to have been a de facto relationship with the Respondent form 7 August 2011 (which in itself is yet a further discrepancy in his evidence as to the commencement date of the relationship). Significantly, the document carries the date of 12 October 2019 together with the Applicant's signature. In cross-examination he was unable to give any reasonable or satisfactory explanation as to why he should complete such a document of October 2019 and then not lodge it until December 2020. Indeed, the Applicant’s Initiating Application filed with this Court deposes to separation occurring on 18 December 2019.
In assessing the credibility of the parties and their witnesses I have the advantages noted by Kirby A-CJ in Galea v Galea (1990) 19 NSWLR 263 including the following:
(a)The hearing of the evidence in its entirety;
(b)Hearing and seeing all evidence in context, chronologically and logically advanced;
(c)Having time during adjournments and during the running of the case to reflect upon the evidence and to weigh such evidence against all other evidence whilst fresh to the mind.
(d)Hearing and seeing interruptions, hesitations and delays in the giving of testimony; and
(e)Observing body language and demeanour.
Nevertheless, I am also acutely aware of the pitfalls of giving too much weight solely to the demeanour of a party or witness in court where they are, of course, in an unfamiliar and stressful environment and where people act and react differently to those stressors.
The Applicant in his affidavit annexes numerous documents including those referenced above. The Respondent challenges the validity of most of those documents including those asserted to carry her signature. Given the time-line discrepancies noted above, plus the inherent implausibility of some assertions and the unsatisfactory explanation by the Applicant in cross-examination, I maintain some doubts as to the legitimacy of a number of such documents. Notably, no expert handwriting evidence was adduced by either party.
The Respondent
The Respondent was a more impressive witness. She gave her evidence in a direct, responsive and informed fashion. She was consistent in her responses when challenged as to matters that might have argued against her case such as, for example, the fact that she continued to maintain a form of social relationship with the Applicant following what she says was the cessation of their relationship in 2015 which she described at that time as being 'toxic'. She was able to make admissions against interest in the sense of accepting that there were 'unusual' aspects of the relationship that she claimed with the Respondent which she says never moved beyond this stage of 'dating'. The Respondent also provided a number of documents annexed to her affidavit but where, contrary to those relied upon by the Applicant, I find such document to be generally corroborative of her evidence.
Each party otherwise adduced evidence from witnesses in support of their version of the public recognition of the relationship. The Applicant’s witnesses deposed generally to identify the parties as a couple. The Respondent’s witnesses gave evidence more to show the relationship being on something of a superficial social level consistent with the Respondent’s evidence of it achieving no higher state than 'dating'. Not unusually, the evidence of these witnesses was, in my view, possibly subjectively honest, but suffering by reason of each person's relationship with one party or the other together with a tendency to emphasise positive aspects in respect of the party requesting them to give evidence. The evidence of most of these witnesses suffered to various degrees under cross-examination.
Ms K
Ms K affirmed an affidavit on 27 July 2021 part way through the trial. She is the mother of the Respondent. She had not intended to give evidence. She had sat in the back of the Court presumably being supportive of the Respondent and heard the evidence of the Applicant. Leave was sought and given for her to swear and have read an affidavit essentially as rebuttal evidence.
Ms K was assured and assertive that she had never received cash from the Applicant and certainly not in respect of the $45,000 cash payment allegedly made to her on or about 1 January 2012 where the Applicant maintains that he personally handed a sum of $45,000 in cash to the Respondent and Ms K and was present in the vicinity of the G Bank, Hobart when Ms K made the deposit.
I generally accept Ms K as a witness of truth. I note the comments made in respect of this evidence above. I have also received by tender G Bank statements which do not corroborate the Applicant's evidence of a deposit on or about that date or at all in respect of $45,000. Suffice to say that the Applicant has produced no bank statements to corroborate his claim and where such evidence might reasonably be available by discovery or subpoena.
Ms K also gave evidence that in or about 2017 she advanced a sum of approximately $17,000 to the Applicant for the purchase of a motor vehicle. This was a personal loan which was eventually repaid. Prima facie, this evidence does not necessarily support the Respondent’s argument as to there being no de facto relationship or, more relevantly, that any relationship that did exist between the Applicant and the Respondent became ‘toxic’ by 2015 and where the Applicant had refused to make full or regular repayments on the loan from the MacLaren Family Trust. That is, counsel for the applicant understandably asserts that the rendering of such a loan between Ms K and the Applicant argues against the evidence of the respondent as to the nature of her relationship with the Applicant and that such a “toxic” relationship had ended by 2015.
Mr L
Mr L provided an affidavit of 18 December 2020 for the Respondent. He is a registered tax agent and chartered accountant. He has been the accountant for the Respondent for ‘over five years’. He confirms that he has never included any person as 'spouse' including de facto spouse in any of the Respondent’s tax returns. Mr L gave unchallenged evidence that as a tax agent/accountant he was obliged to complete that section of the document in respect of spouses and that the document specifically includes such a section. Relevantly, the Applicant did not adduce evidence from his own tax accountant to the contrary.
Ms J
Ms J swore on affidavit on 18 December 2020. She is a friend of the Respondent of 36 years duration. As with many of the other witnesses in this matter, she gave some evidence as to her observations and opinions in respect of the relationship between the Applicant and Respondent. Importantly, however, Ms J confirmed that in January 2017, being almost three years prior to the Applicant’s evidence as to the end of the relationship, she was married and invited the Respondent 'and friend' to attend. The respondent produced that invitation annexed to her affidavit. This evidence offers some corroboration to the Respondent's case that there was no relationship of a committed or coupling type between the parties as of late 2016 when the invitation was sent. Ms J also gave the abovementioned evidence as the Applicant’s change of Facebook status in February 2020.
Mr MacLaren
Mr MacLaren is the Respondent's father. He provided an affidavit of December 2020. His evidence was supportive, as expected, of his daughter and any corroborative or probative value must be seen the within this light.
Mr M
The Applicant asserts that he made a Will nominating the Respondent as a beneficiary and similarly noted her as a beneficiary to his superannuation entitlement. He can produce neither document. He adduced evidence from Mr M who deposed that in about April 2020 he saw the Respondent attend the Applicant's home and remove an 'armful of documents'. Mr M was challenged as to the veracity and accuracy of his evidence by some geographical limitations given his distance from and position in respect of the Applicant’s property. The implication from the Applicant is the Respondent removed his Will and other important documents. I am not satisfied that the Applicant has proven the asserted facts on the balance of probabilities given the poor evidence of the Applicant himself in respect of his alleged making of a Will, such as maintaining that it was witnessed by one person only and that he did not keep a copy or provide a copy to any executor and what appears to be a number of generalities and assumptions in the evidence of Mr M.
Ms N
The Applicant adduced evidence from his adult daughter Ms N. Her affidavit is sworn 14 January 2021. Her evidence was ultimately of little assistance to her father. She tended towards superlatives as in [13] where she deposed to:
… my partner and I have stayed at C Town on multiple occasions …
Cross-examination exposed that she had stayed with the parties on only one occasion. She has lived in the United Kingdom for at least twelve months. She did not meet the Respondent until about 2013. She was an infrequent visitor to her father's home prior to moving to the United Kingdom. Her credibility otherwise suffered by a collateral matter which she was reluctant to admit during cross-examination, and did so only at my direction.
Ms P
Ms P gave evidence for the Applicant. She swore an affidavit on 18 January 2021. She says that she was asked by the Respondent to sign a statement, now in evidence, to Centrelink on 17 April 2019 to the effect that the parties have not been in a de facto relationship. She now refutes that statement. She says, however, that she was contacted by the Applicant subsequent to signing the document and was informed that she 'might get into trouble with Centrelink'.
In that sense, as with many of the other witnesses, her evidence was equivocal, unremarkable and of little probity. My observations of Ms P were of a person reluctant to give evidence for either party and not fully informed by either. Perhaps of some probity is Ms P’s evidence that the document she was asked to sign by the Respondent is dated 17 April 2019 whereas the Applicant says that the relationship continued until at least November 2019.
Ms Q
Ms Q gave the evidence for the Applicant. Her affidavit was sworn 13 January 2021. She met the parties at C Town. She has known the Applicant for longer. Her affidavit is factually incorrect in her understanding that the parties 'purchased the property together' at C Town when it is now conceded that the property was purchased by the MacLaren Family Trust. She also speaks in generalities and superlatives, but in cross-examination agreed to seeing the parties 'at least three times per year'. The impression from Ms Q’s evidence, particularly in respect of the C Town House is of misinformation or naïve assumption.
Mr S
Mr S swore an affidavit on 14 January 2020 on behalf of the Applicant. He is the partner of Ms Q. He is also mistaken in his belief that the property at C Town was purchased by the parties. The wording of his affidavit being at times in the form of the double-negative assists little in the sense of the probity [8].
Mr R
Mr R provided an affidavit for the Applicant filed 9 March 2021. He was not required for cross-examination
His evidence is of little assistance. He has known the Applicant for a number of years. He deposes that the parties attended a party at his property on an undisclosed date. He deposes to his grandson playing with X, but gives no details as to place or time. His evidence is otherwise unremarkable.
Mr T
Mr T provided an affidavit for the Applicant. His evidence also suffers by reason of the use of superlatives as for example at [1] deposing to having 'seen [the Respondent] on a daily basis…' He retreated significantly in this evidence in cross-examination. Mr T presented as unsophisticated with some literacy issues. He remains in some form of employment or contractual relationship with the Applicant. His evidence was of little assistance.
Mr V
The Respondent adduced evidence from Mr V. His affidavit was sworn 11 December 2020. He lives in W Town in Northern Tasmania. He is a tradesperson. His evidence was of no corroborative or probative assistance to the Respondent.
Ms BB
Ms BB provided an affidavit for the Respondent sworn 18 December 2020. She is the respondent's sister. She deposes to inviting the Applicant to her birthday party in 2019. She gave some evidence apparently from her own observations as to the content of overnight bags in the Respondent's motor vehicle. I found this evidence to be partisan, presumptive, and of little assistance.
Mr Y
The Respondent adduced evidence from Mr Y. His affidavit is sworn 17 December 2020. He is the Respondent's neighbour. He gave evidence as to his own observations of the Applicant visiting the Respondent. Again, his evidence like that of many of the Applicant’s witnesses, suffered from the scrutiny of the cross-examination and ultimately offered little or no probative assistance.
Ms Z
Ms Z sworn an affidavit on 17 December 2020. She is another neighbour of the Respondent. Her evidence was unremarkable.
Ms AA
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 CONSIDERATION
The 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
Each of the parties accept that a sexual relationship existed between them. Again, the Applicant’s evidence in respect of historical recollection is less satisfactorily than that of the Respondent who is consistent even under vigorous cross-examination that there was no sexual relationship between the parties after February 2015 despite her admissions that they subsequently holidayed together and shared a bedroom at times.
On the evidence before me, and consistent with the assertions of the Applicant, it seems that the sexual relationship at relevant times was monogamous.
The degree of financial dependence or inter-dependence, and any arrangements for financial support between them
The tenor of the Applicant's affidavit material prima facie is of a high level of financial interdependence including joint purchases.
There is no evidence that the parties ever had a joint bank facility.
The Respondent gave evidence, again which was subject to vigorous cross-examination, that there was a consistent and formal reconciliation of expenditure between the parties throughout their relationship, whatever its nature. The Respondent has completed a summary of her historical bank statements showing precise detail of a repayment or reconciliation from one party to the other in respect of even the smallest of payments made for the other party or for joint benefit.
Consistent with her credit throughout her evidence, I generally accept this evidence of the Respondent. To the contrary, the Applicant gave evidence in his affidavit [25] in a more general and uncorroborated fashion. I prefer the evidence of the Respondent.
Ownership, use and acquisition of their property
The Applicant’s evidence again suffers as to credibility in respect of this issue. At [43] of his trial affidavit the Applicant asserts:
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 for it …
The evidence is now uncontroversial that the house was purchased by and registered in the name of the MacLaren Family Trust. There is no evidence which satisfies me that the Applicant made any direct financial contribution to the purchase of the property. His counsel in the final submissions concedes that the Applicant's evidence in this respect is misleading.
The Applicant continues to assert that he did make a financial contribution to the purchase by way of a deposit paid to the real estate agent. I accept the evidence of the Respondent to the contrary that any payment by the Applicant to the real estate agent was only by way of a convenient diversion of a part repayment by the Applicant of the substantial loan taken by him from the MacLaren Family Trust.
The Applicant also refers to one motor vehicle purchased during the relevant time and apparently registered for a time in the joint names of the parties. I accept the Respondent’s explanation at [137] of her trial affidavit to the effect that the purchase and registration of an old vehicle was made as a simple matter of convenience.
The degree of mutual commitment to a shared life
The Applicant asserts a committed relationship until November 2019. In his representation to Centrelink of 12 October 2019 he references X but not the child support assessment. He does not, however in his affidavit disclose the Applicant having made an application for child support assessment from him in early 2015, being a fact that I find to be within his knowledge.
The Applicant says that a ring had been purchased for the Respondent signifying a form of intention of engagement. His evidence was that 'we were moving towards being engaged'. Prima facie this would be some evidence of commitment. At [32] of his affidavit the Applicant deposes:
While we were in Melbourne [the Respondent] was looking at engagement rings she was unhappy with the second-hand engagement ring she had purchased from CC Outlet in Hobart. At that time [the Respondent] and I were intending to become engaged’.
There is no objective corroboration of the Applicants assertion in the form of an announcement of engagement public or otherwise. The concept of 'moving towards being engaged’ is an odd one and particularly for a man in his late 50’s. It is not evidence, in my view, sufficient to evidence a commitment on the balance of probabilities, and particularly where the Respondent gives unchallenged evidence at [123] of her affidavit to the effect that the Applicant’s assertion is fabricated. She refers to herself purchasing a dress ring from CC Outlet for $650. As is common in issues of credit between the parties in this matter, the Respondent's evidence is more highly particularised and believable. Again, there were no were joint bank accounts, no joint purchases of property and no single residence, all of which might to be ordinarily indicators of, albeit not determinative, of a shared life.
Whether the relationship is or was registered under a prescribed law of State or Territory as prescribed type of relationship
There is no evidence that the relationship was registered under state law but again this is not determinative of the question before me.
The care and support of children
Whatever its status, this relationship brought into the world X born in 2014. There is a dispute between the parties as to whether or not to the pregnancy was planned. Indicative of some commitment in the relationship, has been the continued involvement of the Applicant in X’s life, albeit where he says to a greater extent than is conceded by the Respondent. It is agreed, that the parties and X shared holidays, including overseas holidays, after the child's birth. The Respondent also concedes that she continued to visit the Applicant’s home at B Town with X for a period after she says the relationship in any sense had terminated, but where she says that this was simply her altruism in maintaining a relationship for X with the Applicant.
There is unchallenged evidence that the Respondent applied for the child support assessment in early 2015 against the Applicant with regular and frequent notifications of assessment to the Applicant thereafter and where there is no evidence of withdrawal of the assessment or challenge to it by the Applicant. The Applicant emphasises, however, that the Respondent did not pursue her direct regular payments from him under this assessment until at least the end of 2019. Nevertheless, the application for child support unchallenged by the Applicant is highly probative in my view.
Notation and public aspects of the relationship
The evidence suggests that the parties publicly exposed themselves as being in a relationship. They agreed that the relationship was sexually monogamous at least until when the Respondent says that the sexual relationship ended in 2015. They travelled together including overseas. At times they travelled together to attend the Respondent's family functions. The Applicant continued to attend the Respondent's family functions until 2019.
Nevertheless, there is evidence which are argues against public recognition of a coupling or committed relationship. Firstly, the Respondent made applications to the Child Support Agency and to Centrelink in early 2015 claiming in both applications to be a single person.
Secondly, in 2018, at a time during which the Applicant says that the parties continued to be in a committed relationship, the Respondent made an application against her former employer, a government department. At [64] of her affidavit the Respondent says that she made a claim against the Department and a report was completed. At Annexure N of her affidavit the Respondent provides a copy of that report dated 11 January 2018 and at page 2 it references
Ms Maclaren is a 45 year old single parent of a 3 day year old daughter.
…
She stated that she has an amicable relationship with her daughter’s father, a 56 year old man who pays child support.
Her daughter is attending DD Child Care currently three days a week.
At Annexure M of her affidavit the Respondent provides a letter from DD Child Care Centre confirming her enrolment of Xl in August 2016 and referencing herself as “a single parent”.
The Respondent adduced evidence from Ms J by affidavit sworn 18 December 2020, who deposes at [3]:
When I married in 2017 my fiancé and I invited [the Respondent] and a friend to attend.
The Respondent annexes that invitation to her own affidavit. She argues that this is evidence other than of a publicly recognised relationship with the Applicant at least in 2017.
The Applicant also annexes to her affidavit to a number of invitations to the Respondent, including to her own birthday function, a Father's Day function, and X’s birthday all before the Applicant asserts that the relationship ended. The implication from the Respondent is that it would be unusual to formally invite your partner to such functions.
The Respondent's evidence at [33] of her affidavit, and unchallenged, is that she has:
…always maintained single-parent private health insurance to cover for X and myself. The applicant has his own health insurance arrangement. I have my own Medicare card with X on it. [the applicant] has his own, these have never been together, because that was not the nature of our relationship.
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.
Similarly, however, there are aspects of the evidence which argue against there being a committed relationship between these parties, or a ‘coupling’ so as to achieve the status of 'de facto relationship’. They include:
(i)In circumstances where the Applicant carries an onus of proof, his credibility suffers against that of the Respondent in issues of disputed fact. His affidavit is selective and misleading in its content and its omissions as noted in these reasons above;
(ii)The evidence of Ms J as to the Applicant’s Facebook status post together with the lack of a credible explanation by the Applicant and the Applicant’s own lodging of a document with Centrelink in 2020 are indicative of attempts to shore up his case after the event;
(iii)In or about January 2015 the Respondent made applications to the Child Support Agency and Centrelink claiming a single person status. The Applicant was, on the evidence, aware of at least the child support assessment in 2015. The Respondent has adduced other evidence of similar type including her unchallenged evidence as to having a single person’s Medicare/health insurance for herself and X and her workplace damages claim. The evidence must be viewed against the credibility of the Applicant whose case seems to be that the relationship continued essentially unchanged in its nature until November 2019;
(iv)There is no sufficient or persuasive evidence of any joint purchases or joint bank accounts for these parties save and except the purchase and joint registration of the motor vehicle which I accept was adequately explained by the Respondent, and where it is now conceded by the Applicant that his evidence of the joint purchase of the C Town house is incorrect and misleading;
(v)On the evidence I am satisfied that the parties retained separate residences staying only occasionally at each other's home and in this respect I prefer the evidence of the Respondent as to the frequency of each staying over and consistent with my observations of the Respondent as a more credible witness generally than the Applicant. The evidence generally supports this finding as to the extraneous factors such as X’s schooling and the respective employment of the parties;
(vi)I accept the Respondent's evidence and that of Ms J of invitations by the Respondent to the Applicant such that would not ordinarily be rendered between persons in a de facto relationship and, in the case of, Ms J of an invitation to her wedding to the Respondent 'and friend' in late 2016 to evidence of a lack of public recognition of a relationship by that time, but where again the Applicant maintains a relationship continuing in type and recognition until November 2019;
(vii)I accept the evidence of the Respondent in respect of precise accounting and financial reconciliations of the expenditure of each of the parties consistent with there being no financial dependence or interdependence between them;
(viii)I accept the evidence of Mr L, the accountant on behalf the Respondent as to the normal and required practice of disclosing a de facto relationship in taxation documents. I do not accept the Applicant's evidence, to the contrary, of advice from his own the tax agent and take the inference pursuant to Jones v Dunkel (supra) that the honest evidence of the tax accountant may not have assisted the Applicant’s case and where the Applicant offers no explanation for failing to adduce such potentially corroborative evidence; and
(ix)The Applicant’s evidence in respect of financial arrangements and repayments to the MacLaren Family Trust is unsatisfactory. I prefer the evidence of the Respondent and the Respondent's mother, Ms K. The Applicant maintained the legitimacy of a receipt for $45,000 made out on 1 January 2012 and that he attended a bank with the Respondent mother that day where he personally handed cash in that amount to the Respondent's mother and was at the bank when she deposited the monies. The relevant bank accounts show no such deposit. The Applicant was not able to provide any contrary bank statement or other evidence. The plausibility of attending a bank on New Year’s Day escapes me. The Applicant’s own chronology in respect of obtaining the loan and making repayments is not plausible or convincing. He himself deposes that the loan was not advanced until 2012. At best, this is a failed attempt by the Applicant to give evidence for the collateral purpose for what he claims to be partial repayments of what he admits to be a substantial loan from the MacLaren Family Trust and, in my opinion, most likely a fabrication.
Conclusion
I am unable to find on the evidence that the Applicant has discharged his onus of proof to the requisite standard in his assertion that the parties lived or were otherwise in a de facto relationship. In particular, I place considerable weight on the public documents and statements made by the Respondent to Centrelink and the Child Support Agency in early 2015 after which, although armed with Child Support Agency applications and assessments, the Applicant does not only not disclose same in his affidavit but maintains there to be a continuing de facto relationship for a further almost five years. Equally I place weight on the evidence of the Respondent as to the end of the relationship, such as it was, in early 2015 by way of her communications to others and the recognition by others, such as Ms J’s wedding invitation.
I place considerable weight on there being no significant joint purchases, mingling of finances, or joint financial accounts of the parties. The Applicant’s attempts to assert significant joint purchases have been discredited. To the contrary, I accept the Respondent’s evidence of there being even the most minute financial reconciliations as indicative of no financial mingling or interdependence.
I find that the parties maintained separate residences and substantially resided separately as evidenced by the Respondent.
I find the Respondent to be a more credible witness in respect of issues of disputed fact where her evidence was consistent, informed and factually detailed as opposed to that of the Applicant. I am of the view the Applicant has exaggerated parts of his evidence such as, the frequency of staying at each other’s home. Further, his evidence in respect of collateral issues including the repaying of $45,000 in cash to the Respondent’s mother and the asserted ‘joint purchase’ of C Town completely lacks credit. Documents relied upon by the Applicant as corroboration in fact discredit him and I am inclined to agree with the assertion of the Respondent that at least some are false in their content or at least the subject of later manipulation or addition.
Counsel for the Respondent, leaves an alternative for me to find that there may have be have a de facto relationship for a period of time and perhaps until such public statements were made by the Respondent to Government Departments in early 2015. However, on the evidence as a whole, I am unable to find sufficient commitment, ‘coupling' or indicators of a ‘merging of lives’ at any time. Whilst individual factors are superficially indicative of a de facto relationship, the comprehensive picture is not so indicative. I prefer that the relationship, despite its monogamous nature and the bringing into the world of the X, never achieved the status of a committed genuine domestic relationship or de facto relationship, but was, as the Respondent claims, more a relationship of “boyfriend/girlfriend” or “dating” or even perhaps a better description being, as the Respondent puts it, in the jargon of “friends with benefits”
The application will be dismissed upon a declaration of there being no de facto relationship within the Family Law Act.
I certify that the preceding one hundred and twenty-one (121) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire. Associate:
Dated: 27 August 2021
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