Vaughan & Bele - [2011] FamCA 436

FAMILY COURT OF AUSTRALIA

VAUGHAN & BELE

[2011] FamCA 436

FAMILY LAW – DE FACTO RELATIONSHIP – Where applicant seeks declaration that a de facto relationship existed under s 90RD of the Family Law Act 1975 (Cth) – Where evidence of the applicant was generally preferred to that of the respondent – Where the parties were living as a couple and were sharing all of the activities that one would normally expect in a domestic partnership – The relationship was a de facto relationship – The de facto relationship did not come to an end until the respondent formally made the announcement to the applicant to end the relationship on 2 March 2009.

Family Law Act 1975 (Cth), s 4AA, s 90RD
Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth)

Moby & Schulter [2010] FamCA 748; (2010) FLC 93-447

APPLICANT:

Mr Vaughan

RESPONDENT:

Ms Bele

FILE NUMBER:

MLC

9056

2009

DATE DELIVERED:

9 June 2011

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

15, 16 & 17 March 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR Sweeney

SOLICITOR FOR THE APPLICANT:

Mills Oakley Lawyers

COUNSEL FOR THE RESPONDENT:

Mr St John SC

SOLICITOR FOR THE RESPONDENT:

Susan Snyder

Orders

IT IS DECLARED THAT

Pursuant to sections 90RD and 4AA of the Family Law Act 1975 (Cth) a de facto relationship existed between the applicant and the respondent and that it came to an end on 2 March 2009.

IT IS ORDERED THAT

That all extant applications for final orders be otherwise referred to the Registrar to await the allocation of a hearing in accordance with the declaration referred to in paragraph 1 hereof.
That liberty be reserved to either party to apply for any order consequent upon these orders.

IT IS CERTIFIED THAT

Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel including senior counsel.

IT IS NOTED that publication of this judgment under the pseudonym Vaughan & Bele is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9056 of 2009

Mr Vaughan

Applicant

And

Ms Bele

Respondent

REASONS FOR JUDGMENT

Jurisdiction was conferred on this Court to determine property disputes arising from the breakdown of de facto relationships. (See Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth)).
Subject to some geographical considerations which are not relevant here, that jurisdiction can only arise if the Court accepts that the parties were in a de facto relationship and that they were so when the legislation commenced on 1 March 2009.

Jurisdictional issue

The question of whether or not the de facto relationship of the parties had come to an end before or after 1 March 2009 is a jurisdictional fact. For the Court to have any power to make any orders, a de facto relationship must be found to have existed and to have been extant on 1 March 2009. The applicant must prove the existence of the de facto relationship. The respondent does not have to disprove the allegation. The standard of proof is the balance of probabilities, that is, what probably happened.
The amending legislation says that:
(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.
Section 4AA of the Act provides that in relation to the existence of a de facto relationship, the Court is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate in the circumstances of the case. Before listing the factors in the section to assist in working out if persons have a relationship as a couple, the legislature provided that the Court may have regard to all the circumstances of the relationship and then said that it may include any or all of those factors so listed. The list cannot therefore be seen as exhaustive.
The list of factors which point to the existence of the de facto relationship is:
(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.
It is important to note the following:
(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.
and also:
(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.
It is therefore important to examine carefully the facts to which the parties respectively point to indicate whether I am satisfied about the existence of the jurisdictional fact. Notwithstanding the vagueness of the definition and the subjectivity of the approach, determinations in this case have been made on the balance of probabilities.
The event or characteristic of the ending of a de facto relationship is not defined. The ending of a marriage relationship, unlike a divorce, also has no specific or easily-definable quality because each relationship is different.
For married couples, the law has long recognised separation under one roof (s 49(2)). A divorce may be granted where the Court is satisfied that the marriage has broken down irretrievably (s 48(1), evidence of which is the separation of the parties either under one roof or in two different geographical locations. The permanence of that breakdown is established if the Court is satisfied that the separation has been continuous for not less than twelve months before filing an Application for Divorce (s 48(2).
However in Moby & Schulter [2010] FamCA 748; (2010) FLC 93-447 for the purposes of deciding whether the parties were in a de facto relationship, Mushin J thought it inappropriate to look at the parallel situation of a marriage. His Honour said:
163.In my view, it is inappropriate to try to draw parallels between marriage and a de facto relationship as contemplated by the legislation. Marriage is celebrated in accordance with a formal process prescribed by legislation (Marriage Act 1961) and is proven by a Certificate issued pursuant to that legislation. In contrast, a de facto relationship may be evidenced by registration pursuant to the laws of some State jurisdictions but that is not a necessity and is not relevant in this matter. The Court's jurisdiction to determine an application for alteration of property interests between two people who are or have been married to each other is based on the formality of marriage including the Certificate.
164.There are other significant differences between a marriage and a de facto relationship for the purpose of the legislation. A marriage can only be between a man and a woman. The legislation includes a de facto relationship between two people of the same sex. It is a criminal offence for a person to be a party to two marriages simultaneously. The legislation enables a person to be in two de facto relationships or one or more de facto relationships and a marriage simultaneously. While the legislation includes "the degree of mutual commitment to a shared life" as one of the relevant circumstances, sometimes referred to in the context of marriage as "consortium vitae", there is no requirement that there be such a commitment in order for a de facto relationship to exist.
With respect, I agree. It is the parties who define the nature of their relationship. It may evolve and alter dramatically over time. For that purpose, the legislature provided various requirements such as s 90SB and s 90SK.
The critical question about when something comes to an end is whether it existed in the first place or, as in many relationships, satisfied the legal requirements such that it could be said to exist at some or various times.
For reasons to which I shall turn, there is a distinction between actions which connote unhappiness in a relationship and the termination of it. Termination has a distinct finality about it but it must be such that both parties acknowledge but not necessarily accept, that at least one of them has decided to permanently end the relationship.
In this interim determination, the applicant sought a declaration under s 90RD of the Act. That provision reads:
(1)If:
(a)an application is made for an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL; and
(b)a claim is made, in support of the application, that a de facto relationship existed between the applicant and another person;
the court may, for the purposes of those proceedings (the primary proceedings ), declare that a de facto relationship existed, or never existed, between those 2 persons.
(2) A declaration under subsection (1) of the existence of a de facto relationship may also declare any or all of the following:
(a)the period, or periods, of the de facto relationship for the purposes of paragraph 90SB(a);
(b)whether there is a child of the de facto relationship;
(c)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);
(d)when the de facto relationship ended;
(e)where each of the parties to the de facto relationship was ordinarily resident during the de facto relationship.

Background

The applicant filed an application in amended form on 6 November 2009 seeking orders for the alteration of property interests. He said that the de facto relationship ended on 2 March 2009. The respondent denied the existence of a de facto relationship on 1 March 2009 saying that to the extent that there was such a relationship, it ended on 1 March 2008.
The relationship between Mr Vaughan (the applicant) and Ms Bele (the respondent) may be seen by some observers as a normal working couple raising children. Other observers conscious of the views of the respondent might see the relationship very differently. The respondent herself described the relationship as that of “co-parents”.
There is one child of the union, J born in June 1994. For a large period of time that the parties spent together, the respondent’s son H was a member of their household. He was also a witness for the respondent in the proceedings.
The applicant’s view was that the relationship did not end until the respondent specifically told him that she was leaving the home in which they were both living. The respondent’s counsel conceded that there was a de facto relationship for the purposes of the Act but disputed the applicant’s allegation as to its conclusion.
To make matters more complicated, the relationship in whatever form it was conducted, largely occurred in a European country and on any view, broke down there. There have also been proceedings in the European country. They do not affect my determination.
On 15 December 2009, the respondent appears to have been given leave to file, but never formally did so, a response to the application of the applicant. No issue was taken by the applicant and I was provided with an unsealed copy of the response. In that response, the respondent sought that the applicant’s application simply be dismissed. The coversheet of the response clearly indicates that jurisdiction is the issue.
The proceedings were conducted over two days in October 2010 and then a further three days in March 2011. In the intervening period an anticipated resumption was delayed by a health problem of the respondent disabling her from coming to Australia.
Both parties relied upon affidavit material of deponents who were resident in a European city, X. Some of those deponents had things to say which were controversially important and their absence meant that I had to carefully consider what weight should be afforded their evidence. One of the controversial issues was when the relationship began but there is no need for me to make a determination in relation to that.
On a number of issues, the evidence of the parties was starkly different. Even allowing for different subjective perspectives about events, I formed the view that one of the parties was just clearly wrong. In terms of credibility, I found the applicant consistent and plausible. The respondent was hesitant and at times flippant. As a general proposition, unless I specifically indicate to the contrary, I prefer the applicant’s evidence to that of the respondent.
On 4 February 2010, I made directions for trial including a specific order that if either party sought to tender or lead evidence of documents in a non-English language, they were to be translated and certified. Notwithstanding that order, the respondent attached to her affidavit and produced exhibits that did not have the appropriate translation and her counsel had to lead evidence as to the English translation through his client. Whilst the respondent is proficient in both languages, it would have been far more appropriate for the documents to be properly presented to avoid controversy as to the meaning of words.
A simple background will suffice for these reasons. The applicant is 52 years of age and is a project manager by occupation. He was born in Australia. The respondent is 54 years of age and a service manager by occupation. She too was born in Australia.
The parties commenced a relationship in one form or another in 1993 at which time the respondent had a child H living with her. Each party owned real estate.
In 1997, the respondent applied for employment positions in Europe and was successful in obtaining the position in the European country. The parties have a dispute about what were the terms of their personal relationship at that time and for how long they were to live in Europe. It is not necessary for me to make a determination on that issue. The respondent was then employed by the State public service and she left that position ultimately requiring her to resign.
The parties remained in the European country and both had employment. In August 1999, the parties purchased a home which I shall describe as No 1, F in the city X. The funds for the purchase were borrowed.
For the majority of the time that the parties were in the European country, they worked for the same employer and that becomes relevant for one of the contentious issues about whether they were in a de facto relationship for public reputation purposes.
Whilst working, the parties pooled their incomes and met expenses together.
A significant event occurred in 2007 when the respondent acquired No 30 T in her own name. The funds were all borrowed. Prior to that acquisition, there had been a discussion between the parties about buying the property as an investment but the applicant rejected that. The respondent’s position was that she acquired the property to move there as her primary residence with the clear knowledge of the applicant and on the basis that any relationship between them had come to an end. The applicant’s view was that he knew nothing of the respondent’s purchase until after the separation in March 2009. In between the time of the purchase of No 30 and 2 March 2009, J lives at No 1 property. It was the respondent’s evidence that she had placed tenants in No 30 for some time and then moved there including with items of furniture which had been in storage. She had taken the items from the home at No 1 and placed them in storage. She said that she slept at No 30 returning each morning to get J ready for school and make her breakfast and then returning in the evening only to go to No 30 for the purposes of sleeping. The applicant denied any knowledge of this saying that whilst he and the respondent had slept in different rooms for some years, he was not aware of any move by the respondent away from No 30. As a general proposition, I accept the applicant’s evidence.
There had been difficulties in the relationship between the parties right from the beginning of the time that they were in the European country. The applicant’s view was that he had gone there following the respondent’s employment pursuit but that they were there for a specific period of time. At the conclusion of that time, the respondent refused to honour her agreement as he saw it. The respondent’s view was that the applicant had not had to go to the European country in the first place rather it was his choice to follow. This dilemma created a lack of trust including the respondent making an application in the European country for custody of J simply to prevent the applicant taking the child back to Australia. The applicant conceded that after that time, things were not the same. Importantly however there would have been no visible public alteration to their appearances because J continued to attend school and the parties then purchased the house at No 1. I find that there was a loss of communication during that period of time but to use the respondent’s words, they continued to “co-parent”. That there were difficulties in the relationship was evident because in 2000, the applicant sought counselling for the relationship but it did not eventuate.
In September 2007, which was months after the purchase of No 30, the parties had separate bedrooms. The applicant’s explanation for the separate sleeping arrangements was that he worked early shifts and snored. He thought that the respondent’s later hours were not conducive to them being together in the same bedroom. In January 2008, he began leaving the home at 5.00 a.m.
There were two bathrooms in the home and it was the respondent’s view that she had one and the applicant the other. The applicant denied that. Having regard to the state of the evidence, I accept the applicant’s evidence.
In respect of meals, the applicant said that for the period from 2007 onwards, the respondent cooked for the household except on Saturday nights when he did. The respondent maintained that the applicant cooked in a separate location on the second level of the home. The applicant conceded that he had often arrived home and the respondent and J had already had their meals. The evidence of the applicant in relation to that is more plausible and I accept his evidence.
The acquisition of No 30 and the respondent’s movements backwards and forwards could not have been lost on a fourteen year old J. Senior Counsel for the respondent put to the applicant that J had been aware of the acquisition of No 30. His reply was that the first time it was raised with them was after March 2009 when he spoke to J. He said J had indicated that she found out about the acquisition in March 2009. That has a ring of reality about it having regard to the fact that J did not move to live at No 30 until well after the separation was concluded. The respondent’s evidence was that she was renovating No 30, absent from the home at No 1, removing furniture from No 1 property and then generally moving backwards and forwards. That is not something that would have escaped J and as she only raised it in March 2009, the applicant’s evidence appears the more probable.

Considerable focus was placed on the night of 2 March and J’s rather offhanded response of not wanting to talk to her father about the breakdown of the relationship. In my view, nothing turns on that having regard to the age of J save that if J had known much earlier that her mother had left the home, I doubt she would have reacted as she did in March 2009.
The respondent maintained that she removed items of furniture periodically over a number of months initially sleeping on a camp bed rather than taking things that would have been obvious. Some items were stored during a period when there were tenants in No 30. The surreptitious nature of this furniture movement supports the conclusion that the respondent did not tell the applicant of her intentions.
During the disputed period of time, the parties had a number of holidays together. They went to the … Islands as a family. The respondent’s evidence was that that was natural because they were parenting J. It was suggested to the applicant that there were separate rooms, one for him and the other for the respondent and J. He denied that and indicated that the relationship between the parties was ongoing and J had a room to herself. The respondent’s view may have had a ring of reality about it save for the fact that the parties attended a work conference in southern France and used the same room. They also went to N together and the same thing occurred. When cross examined about why all those things happened, the respondent replied that they were work colleagues and the company permitted them to stay together like that.
To the extent that the parties did things together to keep up appearances for J, one example where that did not occur was that at the M River in July 2008 where they travelled on bicycles. The parties strongly disagreed about who carried what and whether there was more than one tent. Curiously, J did not go but the parties stayed away for as much as four nights. The respondent conceded that she asked the applicant to go with her. When asked why, she said she wanted to maintain a civil co-parent relationship and she did not like camping on her own. I reject the inference from her evidence that they just went as co-parents or friends.
The parties did not even agree on the intimacy between them. The applicant says there was sexual relations on at least three or four occasions between September 2008 and March 2009 and the flippant response from the respondent was that if the applicant had sexual relations it certainly was not with her. This was at a period of time when the parties were separated into two bedrooms but the applicant’s evidence was that they had sex in the main bedroom and an hour or so later, the respondent left for her own room. The two versions are starkly at odds with one another bearing in mind that the respondent would have me accept that during that particular period of time, she was sleeping at No 30. With the totality of the evidence and the matters to which I shall shortly refer, I accept the applicant’s version.
Part of the recreation of the parties up until September 2008 was to ride bicycles together. The respondent’s evidence was that she went and the applicant followed. That is implausible. The applicant was able to give evidence about stopping at a café for coffee and allowing the respondent to catch up with him because he rode much more quickly. The cycling gave rise to a significant controversial event.
On Saturday 20 September 2008, whilst out riding, the respondent stopped her bicycle and the applicant stopped quickly and fell off his bicycle. He broke both of his arms which were then placed in plaster. The respondent’s version was that the applicant blamed her for the accident and having regard to the state of their relationship generally, I accept that is probably the case. However, it was the applicant’s evidence that his incapacity required considerable assistance from the respondent including feeding him, dressing him and even wiping his bottom. The respondent emphatically denied that any such assistance was provided other than the fact that she organised a plumber to put special taps in to the bathroom and made provision for food. The applicant attached to his affidavit a photograph which the respondent did not deny depicted his disability. The tasks which the applicant said required assistance from the respondent could not have been undertaken by him bearing in mind the plaster. The respondent suggested that it was J who assisted. That explanation was implausible. One would wonder why the respondent would ask and/or encourage a fourteen year old daughter to undertake those tasks. No other plausible explanation was provided. I consequently accept the applicant’s version.
Up until the accident, the parties attended ballroom dancing. This was a weekly event for which they enrolled together and payment was made from their joint account. If I was to infer that the respondent initiated this sort of activity and the applicant simply followed, one would have to question why the respondent would continue the activity. Certainly from a public perception point of view, the impression given was that the parties were in a relationship.
That situation was made clearer when the parties attended together at a service club Christmas function. In a very obtuse way, the respondent endeavoured to say that they went to the function separately but in reality, she was referring to travel by bicycle. There is no question the parties attended together, sat together and were seen together as a couple. The applicant produced evidence from a service Club member Mr D indicating that the respondent attended as the applicant’s guest because that was the only way she could attend. The respondent maintained that she went to the function because there was a potential benefit for J in having the contacts for employment purposes. Even if that was her motivation, the public perception was that the parties were in a relationship together.
It was the respondent’s evidence that separation was undeniable from September 2008 but at Christmas that year, the parties and their respective children had the day together at No 30. The respondent cooked the meal and various photographs were tendered which indicated a Christmas tree and exchange of presents. The respondent’s view was that J wanted to see the parties share a pavlova together and in the respondent’s view, she wanted to ensure that as co-parents, she and the applicant were good role models. No indication is given in any of the photographs of any dissention or unhappiness and the parties are seen together.
In her affidavit filed 30 March 2010, the respondent annexed a variety of documents purporting to corroborate her evidence of having a separate residence at No 30. I have already mentioned the fact that I had made an order only weeks before requiring translations. These documents purport to be indicating the connections for household utilities at No 30. Even if they do indicate that, it is only one aspect of the issue of whether the de facto relationship subsisted at that time.
One of the witnesses for the applicant was his brother Mr V. He visited the European country in April 2007 and stayed with the parties on a number of occasions until he departed on 21 May 2007. His evidence was that to all intents and purposes, there were no problems in the relationship. He saw the parties watching TV and eating together. They talked about his trip and observed his photographs but he conceded that the respondent was not quite as interested as J. This evidence would fly in the face of the position put by the respondent but that was explained by her son on the basis that as they knew Mr V was coming to the European country, they all put on a “show” to suggest happy families. H suggested that that conspiracy included the applicant himself. I find that unlikely. There would be no reason for him to do so.
The accuracy of the respondent as a reporter has to be open to question having regard to a number of documents and statements to which I shall now turn.
The parties disagreed about an incident that occurred in February or March of 2009. The applicant asserted that it was after 1 March 2009 when the respondent attended at the house and they had an argument in the lounge room. This was close to the front of the entrance. The applicant resisted the respondent staying or taking items and called the police. Senior Counsel for the respondent put to the applicant that the incident occurred in late February and that it was outside, not inside, the home. The applicant was emphatic that it was in March and when asked why he was so confident, the applicant said that he kept a record in a word document which he had prepared for his own purposes. Senior Counsel for the respondent called for the document but it was never tendered in evidence if it was ever produced. The applicant said that this incident did not occur during J’s school holidays but was adamant that the respondent had already left No 1 and therefore he had changed the locks. The respondent maintained that the incident occurred during J’s school holidays which she said were in late February. That evidence was corroborated by Mr R who lived beside No 1. He recalled seeing the respondent moving boxes from No 1 around Easter time in April 2007 and when he spoke to the respondent, she told him that she was then living at No 30. He acknowledged however that he had recalled seeing the respondent living at No 1 later in 2007. In the February 2009 holidays, he said he was at home with his younger son and he heard shouting in the street and saw the parties on the street outside No 1. The difficulty that I have with this evidence is that it is untested. No arrangement was made for Mr R to come to Australia nor to have any electronic form of cross examination. Having regard to the general view that I have about the credibility of the applicant being a better recorder of the facts than the respondent, it is my view that it would be unsafe for me to rely upon the evidence of Mr R as to dates. Accordingly, I do not accept his evidence carries any weight.
The applicant said that subsequent to this event, having changed the locks, he gave H a key asking H not to take sides because the dispute was between the applicant and the respondent. The applicant said that he gave the key to H a day or so after he changed the locks. There was no reason for him to change the locks other than to avoid the sort of attendances in which the confrontation occurred. I find therefore that the first incident occurred after 1 March and most likely, late March 2009.
A second incident did occur in late March also in which the applicant found H removing documents from No. 1. They had a confrontation, the details of which do not matter.
Proceedings began in the courts in the European country. The factual court documents appeared much as a pleading might be seen in the civil courts of this country save that facts were recorded as well. In that document, the respondent referred to a relationship with the applicant which by inference, would have ended as the applicant claimed. The respondent’s version was that it was an emergency application and therefore some of her instructions may have been lost in translation when the European document was prepared because of the urgency of its preparation. I reject that.
The proceedings had commenced because the respondent was concerned that the applicant might take J to Australia for a holiday. That led to the parties attending mediation in relation to J’s residential wishes and after some discussion, J indicated she wished to remain living with the respondent. After that occurred, the respondent registered herself with the civil authorities as living with J at No. 30. The municipal records would certainly indicate that occurred well after 1 March 2009. In the emergency application to the court, the respondent referred to the fact that J lived with the applicant and herself until 12 March 2009.
Mr D’s evidence was to the effect that he met the respondent on 3 March and the applicant on 8 March all of which gave rise to the applicant telling Mr D that the parties had just separated. I have rejected the evidence of Mr R because it could not be tested. Mr D’s evidence could not be tested either for the same reasons but the sequence of events chronologically fits with all of the other pieces of evidence. Accordingly, I accept Mr D’s evidence.
On 25 January 2011, the solicitors for the applicant served upon the respondent’s solicitor a Notice to Admit Facts and Authenticity of Documents. Attached to the document was a police report dated 2 April 2009. This was a controversial document in that the weight to be given to it was in dispute. The respondent maintained that she attended at the police station to record a threat by the applicant to take J to Australia. The police memorandum in that first visit recorded that the relationship came to an end in March 2009. That is consistent with what the applicant said. It was argued by the respondent that the police officer who first recorded that did so incorrectly. The respondent then went to the police station again on 2 April 2009 to correct the record. The police officer she then met noted the dispute about the earlier recording and then said in the memorandum:
According to the informant it was not the end of March but it was earlier. It must have been the end of January 2009 and the beginning of February 2009.
Even the accuracy of that recording was disputed by the respondent. Be that as it may, there could not be any suggestion from the respondent’s perspective that the relationship ended in late January or the beginning of February bearing in mind her own evidence and that of Mr R. Her evidence was that by January or February 2009, the de facto relationship was well and truly over. Thus, to make such a statement to police does not make sense.
Bearing in mind the provisions of s 4AA(4) notwithstanding the disputed nature of the document, this recording is a matter that I should give some weight to.
In her first Australian affidavit of evidence sworn 14 December 2009, the respondent said that the separation took place in September 2008. She then denied the applicant’s version that it was 2 March 2009 and repeated that “We separated in 2009”.
When giving her evidence in chief, the respondent said that “2009” should be “2008”. In the same affidavit, she referred to the fact that in September 2008, after continuing arguments with the applicant and after he locked her out of the family home, she moved out of the house and moved to the house nearby. In her evidence in chief, she corrected that to say it was not September 2008 that she was locked out but March 2009. Bearing in mind the inaccuracies in that affidavit as it was drawn, and the various statements made to the police in the city X, I have looked at the European court document which was much closer to the disputed time for some assistance. That document was attached to the affidavit of the respondent sworn 14 December 2009. In it, the respondent said that subsequent to moving to No. 30, she continued to pay everything for the joint house at No. 1 such as all household costs. That issue was the subject of considerable scrutiny in cross examination of the respondent. In January 2009 and the weeks thereafter, regular payments were made into the joint account but from the end of February, the records show that they stopped. When asked why that was the case, the respondent said she did not need to contribute as much because she was living at No. 30. When it was put to her that something happened at the end of February to make her stop making the payments, she said she had gradually been moving her personal belongings to No. 30 after 1 September 2008 and she had her own expenses and when she was refused entry at the end of February, she stopped. In my view, that highlights the fact that something dramatic occurred in the relationship in or around 1 March 2009 rather than in September 2008.
Returning again to the European court document, at page 8 the following statement appeared:
At the start of 2009, following another heated argument in the street, the woman left the joint house in a very distressed state and moved into her house at [No 30] in [the city X].
In my view, the statement referring to the start of 2009 does not make sense but again supports the view that the relationship came to an end as the applicant said.
H gave evidence mostly relating to the storage of goods by his mother. He helped her move those goods. Just exactly what items were moved is confusing. I do not accept that even if that did occur, it makes any difference in this particular case because I find that the relationship was a de facto one and ongoing for the reasons to which I shall turn in a moment.
H also said that he was present in January 2007 when there was a discussion between the applicant and the respondent about buying No. 30. He confirmed that the applicant opposed the purchase. He was otherwise unaware of the details of the conversation. That is consistent with the applicant’s evidence and takes the matter no further.
It was put to H that a document which related to his residential lease was connected to the removal of the items in storage. It was put by counsel for the applicant that he had been caught out in the collation of the documents and that the storage details were really connected to his own residential position and had nothing to do with the respondent. I do not make that finding. Much of the evidence of H did little to assist the determination.
I have also contemplated the evidence of Mr P, Ms S, Mr G and Mr M. None of these witnesses was available for cross examination and I was informed that their evidence was disputed to some extent. Having carefully contemplated all of that evidence, it does not assist me in respect of determining whether or not the relationship had ended by 1 March 2009 and more particularly, what type of relationship the parties were in up until that date.
Whatever the relationship was between the applicant and the respondent, it was conceded by Senior Counsel for the respondent that I could accept that there was a de facto relationship but that it ended in September 2008. I find however that subsequent to 1 September 2008, No. 1 was a common residence and even if the respondent was at No. 30 on various occasions subsequent to 1 September 2008, the residence which was used for the purposes of a base for the family was clearly No. 1. That was the home in which J lived and that was the property to which the respondent went each day for the purposes of maintaining the structure of the family life as it had been for a number of years.
The critical question for jurisdictional purposes is whether the parties were in a de facto relationship as a couple living together on a genuine domestic basis. On the findings I have made, they were living as a couple and were sharing all of the activities that one would normally expect in a domestic partnership. There was clearly financial interdependence between the parties and they made arrangements for financial support up until that was terminated by the respondent around the end of February 2009. On any view of the facts, the parties owned joint property together so from an official point of view, they were perceived by the authorities as living together. The respondent made a point of saying that the change of residence was required to be registered and she did not change her status until after 1 March 2009.
None of the factors set out in the Act as indicia of a de facto relationship is any more important than any other. It is not unexpected that after a relationship breaks down, the parties may have a jaundiced view of what they have done in the past particularly where one party is seeking to deny the existence of the relationship. In this case, the examples of the bike riding, the co-parenting, the ballroom dancing, the Christmas luncheon and the service club dinner would all indicate that there was a mutual commitment to a shared life. The degree of that commitment not only varies in every case but also from various perspectives of the parties themselves. The respondent went camping and shared accommodation facilities for conferences and holidays all of which would indicate the degree of comfort in each other’s company. On any view, someone outside looking in would perceive the applicant and the respondent as a committed family having regard to the activities to which I have just referred.

To bring the relationship to an end for the purposes of making it clear that there was no longer any de facto relationship, required the respondent to formally make the announcement to the applicant despite her view that she had withdrawn from any commitment to it well before 1 March 2009. I find that that formal commitment to end the relationship was made as the applicant said on 2 March 2009.

I certify that the preceding Seventy One (71) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 9 June 2011.

Associate:

Date: 9 June 2011