Vincent & Strong
[2023] FedCFamC2F 1234
•23 June 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Vincent & Strong [2023] FedCFamC2F 1234
File number(s): NCC 1122 of 2022 Judgment of: JUDGE BETTS Date of judgment: 23 June 2023 Catchwords: FAMILY LAW – de facto property settlement proceedings – where the Court must determine the date when the de facto relationship broke down – where the husband contends it broke down in August 2018 – where the wife contends it broke down in May 2020 – where the Court is satisfied the relationship broke down on or about May 2020. Legislation: Evidence Act 1995 (Cth)
Family Law Act1975 (Cth)
Cases cited: Fairbairn v Radecki (2022) FLC 94 - 083 Division: Division 2 Family Law Number of paragraphs: 112 Date of last submission/s: 22 June 2023 Date of hearing: 22 June 2023 Place: Newcastle Counsel for the Applicant: Mr Kelly Solicitors for the Applicant: Coppertree Family Law Counsel for the Respondent: Mr Tregilgas Solicitors for the Respondent: Gillard Family Lawyers ORDERS
NCC 1122 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS VINCENT
Applicant
AND: MR STRONG
Respondent
ORDER MADE BY:
JUDGE BETTS
DATE OF ORDER:
23 JUNE 2023
Amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 21 September 2023
THE COURT ORDERS THAT:
1.The Court declares, pursuant to s90RD(2)(a) of the Family Law Act1975, that the Applicant, Ms Vincent and the Respondent Mr Strong were in a “de facto relationship” as that term is defined in s4AA of the Family Law Act from early 2013 to on or about May 2020.
2.The Applicant’s costs of and incidental to this hearing are reserved.
3.That the parties and any lawyers on the record attend a Conciliation Conference with a Senior Judicial Registrar on 9 August 2023 at 9.30am at the Newcastle Registry.
4.The parties and any lawyers on the record shall follow any directions from the Registrar convening the conference in relation to attendance in person or by Microsoft Teams.
5.Unless they obtain an exemption of such fee in accordance with the Family Law (Fees) Regulations 2012 (Cth), the APPLICANT and RESPONDENT must pay the Conciliation Conference fee in equal amounts within 7 days of the date of these orders.
6.Not less than 7 days prior to the Conciliation Conference the Applicant is to file a collaboratively prepared joint Balance Sheet.
7.Not less than 14 days prior to the Conciliation Conference, each party must:
(a)ensure that all documents required to be exchanged between parties pursuant to Chapter 6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) have been exchanged;
(b)ensure that any private expert report that is relevant to the proceedings has been filed;
(c)provide to the Court by email to [email protected] and to the other party a single collated bundle of documents comprising:
(i)a Confidential Outline of Case (Dispute Resolution)
(ii)a detailed minute of Orders Sought;
(iii)details of any previous or current family violence orders;
(iv)a copy of any document exchanged between the parties which is directly relevant to an issue remaining in dispute (with relevant passages highlighted);
(v)particulars of any financial resource;
(vi)a valuation or market appraisal of any real estate or other asset the value of which is in dispute;
(vii)statements for, and where applicable, valuations of any superannuation interest;
(viii)written confirmation that the trustee of any fund that may be the subject of a splitting order has been afforded procedural fairness.
8.The parties have liberty to apply to the Chambers of a Senior Judicial Registrar for a re-listing in the event of any disclosure issue arising.
THE COURT NOTES THAT:
A.The Court is informed that all valuation issues will be attended to and all outstanding issues of disclosure will be attended to well prior to the Conciliation Conference.
B.The parties are advised that costs orders may be made in the event the matter is not able to proceed on the date allocated in these Orders for the Conciliation Conference.
Only include if ordered.C.Prior to the Conciliation Conference, the lawyer for each represented party must provide to his or her client, and to each other party, a notice indicating whether the party is in receipt of legal aid funding and, if not, providing particulars of:
a.the total costs and disbursements incurred by the party in the proceeding to date;
b.an estimate of the anticipated costs expected to be incurred in each remaining stage of the proceeding; and
c.an estimate of the likely duration of the final hearing and the total anticipated costs and disbursements expected to be incurred for the remainder of the proceeding.
D.The Confidential Outline of Case (Dispute Resolution) is a confidential without prejudice document prepared for the purpose of the Conciliation Conference only. It is not to be filed or kept with the Court file after the conclusion of the conference.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BETTS
These reasons for judgment were delivered orally. They have been corrected from the transcript in order to make them easier to read.
BACKGROUND
These are de facto property settlement proceedings instituted by Ms Vincent (“the wife”) against Mr Strong (“the husband”). It is common ground in this case that the parties commenced some form of intimate relationship in 2011 or 2012, that they commenced cohabitation and were in a de facto relationship in early 2013, that they moved into a property at Town B in late 2014, and that the wife moved out of the property in early 2022.
It is agreed that the parties were in a de facto relationship from early 2013. The question that the Court must determine at this stage is when that de facto relationship broke down. The husband says that the relationship broke down on or about August 2018 and the wife says that the de facto relationship broke down on or about May 2020.
The difference between the two dates is material because the wife filed the within proceedings on 28 April 2022. If the husband is correct about the separation date, then the wife’s property settlement application has been brought out of time and will require a grant of leave pursuant to section 44 of the Family Law Act1975 (Cth) (“the Act”). On the other hand, if the wife’s application is brought within time, leave will not be necessary.
All that I have to determine in these proceedings, at least at this stage, is when the de facto relationship broke down.
THE HEARING
To that end, the matter proceeded before me yesterday by way of final hearing. Mr Kelly of counsel appeared on behalf of the wife and Mr Tregilgas of counsel appeared on behalf of the husband.
The wife relied upon:
·a Case Outline Document filed 20 June 2023;
·an Amended Initiating Application filed 20 June 2023, although the orders set out in that document were not pursued as such and, in that sense, the document is irrelevant for present purposes;
·the affidavit of the wife filed 16 June 2023;
·the affidavit of the wife’s daughter Ms C filed 16 June 2023; and
·the affidavit of the wife’s friend, Ms D, filed 16 June 2023.
Although these three (3) affidavits were filed out of time, no objection was taken to them because they had, in fact, been filed on 22 May 2023 and served upon the husband’s legal representatives. Due to technical reasons, seemingly related to the form of the affidavits, they were subsequently rejected by the Court portal and so they required re-filing. Objection not having been taken, I granted leave to the wife to rely upon that affidavit material.
In the husband’s case, he relied upon:
·a Case Outline Document filed 20 June 2023;
·the affidavit of the husband filed 22 May 2023.
I had the benefit of seeing and hearing both of the parties give oral evidence in Court. I also had the benefit of seeing and hearing the wife’s daughter Ms C, and Ms D give their evidence.
In addition to this material, the parties tendered numerous documents as exhibits. Most of the documents consist of text messaging exchanged between the parties at different points in their relationship and that text messaging gives a flavour as to the nature of their communications and the status of their relationship.
The case is somewhat unusual in the sense that these parties seem to have regularly expressed difficult emotional issues concerning their respective wants and needs, and the status of their relationship, in written form by way of text message. In that sense, the Court has the benefit of relevant written communications that were exchanged rather than having to determine difficult factual matters on a “he said / she said” basis. Nonetheless, the text messages point in different directions in terms of the separation date. It could not be said that they are, of themselves, entirely conclusive as to when the relationship ended. But they give an important insight for the Court and I have had the benefit of those documents.
There are also other documents to which I will refer.
THE LAW
I begin however by referring to the definition of a ‘de facto relationship’ as provided in s 4AA of the Act. Pursuant to section 4AA(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; and
(c)this is the critical subparagraph - having regard to all of the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Under the heading ‘Working out if persons have a relationship as a couple’, s 4AA(2) of the Act provides:
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.
Section 4AA(3) provides that:
No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
Section 4AA(4) provides that:
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.
The High Court of Australia recently had cause to discuss the breakdown of de facto relationships in its decision of Fairbairn v Radecki (2022) FLC 94 - 083. Therein the Court said, footnotes omitted:
28Section 4AA(1)(c) identifies the relationship which is the concern of the Act: “a relationship as a couple living together on a genuine domestic basis”. The existence of such a relationship is determined having regard to “all the circumstances” of a relationship; significantly, those “circumstances” include any or all of the circumstances listed in s 4AA(2), and, by reason of s 4AA(3), no particular finding about any circumstance is necessary for there to be a de facto relationship. Consistently with the reality that human relationships are infinitely mutable, in determining whether a de facto relationship exists a court is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate.
29A de facto relationship will have broken down when, having regard to all the circumstances, the parties no longer “have a relationship as a couple living together on a genuine domestic basis”. Such a conclusion is not precluded by the presence of an ongoing relationship of some sort. That is not the inquiry. The question is whether a de facto relationship exists or has broken down.
30In the context of a human relationship, “breakdown” refers to the “end” or “breakup” of what had been an enduring emotional bond. It is the “breakdown” or “end” of a de facto relationship that is the trigger point for the Federal Circuit and Family Court to be seized of jurisdiction to make a property settlement order under section 90SM of the Act …
…
38The presence of a mutually recognised de facto or marital relationship involving a shared life was critical in each of SZOXP, Crabtree and Stanford. In Stanford, the continued subsistence of such a relationship explained the making of the “necessary or desirable adjustments” to the property interests of the husband and wife. In contrast, where the “necessary or desirable adjustments” are not made, and one party fundamentally acts contrary to the interests of the other in relation to the property of the couple, it may be possible to conclude that the mutual commitment to a shared life has ceased.
39The language of s 4AA of the Act and its reference to “living together” requires no different approach to determining whether a relationship exists of the kind defined. “Living together”, consistently with authority, should be construed as meaning sharing life as a couple. Section 4AA does not prescribe any way by which a couple may share life together. Its language is sufficiently broad to accommodate the great variety of ways a de facto relationship may exist. That conclusion is supported by the varied factors listed in s 4AA(2). In a given case, some of the factors listed in s 4AA(2) may be relevant and some may be irrelevant; inevitably some may have greater prominence than others. A conclusion that a de facto relationship has ended may also arise because of factors not listed in s 4AA(2). Such a conclusion is mandated by s 4AA(3) and (4). In particular, s 4AA(4) is a statutory recognition that what may constitute a genuine de facto relationship is not to be determined in the same way in every case by reference to rigid criteria that must always be satisfied. In that respect, the language of s 4AA(2)(b) does not assume that every de facto relationship must have a “common residence” to some “extent” and of some “nature”. Such a construction is entirely denied by s 4AA(3).
CHRONOLOGY OF EVENTS
In this particular case, the husband adopted what might be called a ‘traditional’ role in this relationship. He worked throughout, initially for his parents’ business and in later times he established his own business which seems to have been in the nature of an offshoot. Without doubt, during this relationship, the husband was the primary breadwinner.
For the wife’s part, she adopted the ‘traditional’ role of a wife and mother. She undertook practically all of the domestic tasks around the home, including cooking, cleaning and the like. She assisted in caring for the husband’s children, Ms E now 20 and Mr F now 18, at times when they were staying in the home. She also cared for her own three (3) children: Ms C now 21, Mr G now 19 and H now 14.
The husband in this case appears to have been a loving, generous and kind man in terms of the wife’s children. He very much acted as their father figure and there was obviously much affection between them.
From late 2014 until March 2022 the parties lived in the same home at Town B. They had a sexual relationship. The wife was effectively entirely financially dependent upon the husband.
The real question then is when the de facto relationship broke down because it is common ground that the parties continued living together under the one roof right up until March 2022 which, on the wife’s case, is almost two (2) years after the relationship ended and on the husband’s case, is more like three and a half (3 ½) years.
In this respect, it is necessary to consider the aspects of the relationship and how it evolved.
Having considered the evidence in this case, including the affidavits, the oral evidence of the parties and the text messages, I am of the view that this was a relationship which, on any view, waxed and waned. On occasions the wife was prone to send messages to the husband of an upset or even a despairing nature from time to time. Perhaps understandably, the husband was in the habit of reacting defensively to such messages.
The husband suggested that the wife had moved out of their bedroom in late 2017 or thereabouts. The wife agreed that she would stay in the spare room periodically during the relationship, citing various reasons which included such banal matters as the husband snoring. But I certainly accept that the wife was sleeping, at least intermittently, in the spare room throughout the relationship and particularly in the period from 2017 onwards.
It is quite clear that the parties did have difficulties in their relationship in 2017 and I propose to refer now to some of the text messages to give a context to some of those difficulties.
It is common ground that in 2017 the parties had difficulties in their relationship. According to exhibit 2, the wife texted the husband in May 2017 or thereabouts telling him:
Our relationship is at breaking point at the moment. I don’t need this kind of help from you.
In the witness box, the wife explained that at that stage, from where she was sitting, the relationship was ‘falling apart’. According to exhibit 3, in June 2017, the wife texted the husband to say:
I’m beginning to think our relationship is unrepairable. The issues are never addressed.
The husband agreed, telling the wife he didn’t think she wanted to repair it. The wife responded with a fairly lengthy text message which referenced family dramas, work plans, etcetera, and the fact that she felt that her needs were not being met.
I should add that around this time the husband seems to have had some form of a falling out with his parents and also his own children who apparently began to spend less time, indeed much less time, staying at the parties’ home. So it is understandable why the husband felt that he was in a difficult situation emotionally and why this might have added strain to the parties’ relationship.
In August 2017, the wife texted the husband to say:
I feel really sad for you.
with a sad emoji face:
We are already drifting apart and after hearing you say you’re going to withhold even more things from me just to avoid a different opinion. I don’t hold much hope for us all. You are a very complex man. Good night.
In September 2017, the wife texted the husband to say that:
My kids are suffering big time. All three are struggling at school because of our shit. They know their “rock” –
which she confirmed in the witness box was a reference to herself –
is crumbling and crumbling fast and they have no one else to rely on. I’m beginning to think our selfishness to have a relationship is affecting too many people. It used to be effortless but now it is draining.
She went on by way of a text in November 2017 to say:
Our relationship is a fucking joke.
The next month, December 2017, the wife texted the husband to say:
I can’t do this any more. Sorry. I am done.
Now I pause here to observe that on its face, the latter message reads rather like a relationship ending. But again, as I indicated, context is everything and the wife was prone to sending despairing messages. It is common ground, even on the husband’s case, that this relationship did not end for at least another eight (8) months after that message.
It is clear that the relationship between the parties was difficult in 2018. There can be no dispute about that. In July 2018, the wife texted the husband to say:
We are not united in any way, shape or form. Stop pretending we are, for everyone’s sake, please. It’s just making it harder.
She also said, at or about the same time, that the husband should feel free to go out as she will be:
…coming and going all night and will be in my room when I’m home.
In the witness box, the wife said she was referring to the spare room where she was sleeping on that occasion and she said that the references to going in and out related to her children and their various activities.
Again, I reiterate that, on anyone’s case, the relationship was still on foot at this time. This is so, notwithstanding that at around the same time the wife also texted the husband to say:
I am done. I don’t need this shit from you at all. Thanks heaps for your support.
as well as a conversation where the parties said the following: [1]
Husband: In hindsight, I think it was a mistake us moving in together. I think that was the start of our demise.
Followed by: Perhaps the word “mistake” was too harsh a word.
Wife: NO YOU ARE 100% RIGHT….THIS WHOLE RELATIONSHIP WAS A MISTAKE!
I now approach the date when the husband says the relationship broke down, namely August 2018.
The husband refers to a text message from the wife August 2018 wherein she said:
Perhaps it might be a good idea if my kids and I are only here when you’re not until I can make some arrangements to get out. It’s not fair on any of us living like this.
with a frowning emoji:
I will get home as late as possible tomorrow night.
The husband responded by text saying that he had been trying to fix their relationship and he cited some examples, including having taken some time off work earlier in the year.
Cross-examined about her above text in the witness box, the wife said that she was struggling financially at that time, that she felt frustrated – but that the relationship nonetheless had not ended.
A critical date relied upon by the husband is August 2018. It is relevant to read from exhibit 6 to understand the text messaging in this respect:
Husband: I will put 5K in your account tomorrow. In five weeks, when I leave work, I will have some more money then. Not sure how much that will be. Take what you need to get yourself set up. I really hope that this will make you happy.
Wife: I think it’s the only option but doesn’t have to be tomorrow. I’m waiting to hear back on a job so can’t do much until I get work really. I will try a little harder now, I guess, but I will start to clear out our stuff. I have three kids I have to deal with through this also. Can’t give you a date at this point.
In a sense, this exchange is really the high water mark of the husband’s case. When one looks at the text messages, again it rather reads like the end of a relationship. I also note that the husband did make a ‘one-off’ payment of $5,000 to the wife, consistent with the text messages that I have just read.
It would be fair to say that during the relationship, and certainly from 2016 onwards, the husband had been making very regular periodic payments to the wife, usually on a weekly basis, of amounts in the order of $600 to $800, although there are various other differing amounts from time to time.
However the $5,000 payment was made in August 2018 and, consistent with the text messaging, it looks as though this was some form of separation type payment, to enable the wife to have the capacity to move out with the children.
But it is really not quite as simple as it appears.
The fact of the matter is that the wife did not move out of the home at that time. Her evidence is that the relationship between the parties really didn’t change. This is also the evidence of Ms C, which evidence I accept. It is also broadly consistent with the observations of Ms D, who deposes that the relationship between the parties, at least from her perspective as an observer, was that it didn’t really change during the course of the wife living with the husband in the home at Town B.
It is also clear from text messages that the parties continued to argue thereafter in ways that were entirely compatible with the ongoing existence of a de facto relationship.
For example, in September/October 2018 the parties engaged in text message discussions in which the husband says to the wife to ‘stop packing and start talking’. The husband is asking for what changes the wife should be asking him to make and she responds that she can’t take any more empty promises but is willing to listen to what he has to say. I am referring here to exhibit 14.
In October 2018, the parties messaged each other as follows:
Wife: You have just lost a seven year relationship and you are worried about the lawns. I spent six hours at the police station on Sat [referring to Saturday] - you could have done them then.
Husband: I’m not going to keep on with this senseless arguing. It will get us nowhere.
Wife: You’re right. Sorry, I forgot. I meant nothing.
Clearly, the latter was an emotional response, if not ‘baiting’ the husband to some extent. The messages continued:
Husband: You love me, I love you. We’re both hurting for different reasons. Take the time you need to fix yourself. I’m here when you’re ready to stop placing blame and work on us.
Wife: It’s too late. You’ve already let go. You’ve turned your back on me and that is something I have never done to you.
Husband: That’s funny, I didn’t leave the bed or the home …
Wife: I left when I stopped being important to you. I left because it hurts too much to be around you. I am physically, mentally and emotionally exhausted and you’re worried about relationship status and lawns. I have always been there for you.
Husband: And yet you still continue to argue the point. No wonder you’re so exhausted. You’re right, I’m wrong. Can we move on now, please.
Wife: You’re a single man. Do whatever you want.
Followed shortly by: I don’t think I’ve ever hurt this much in my entire life. I can’t deal with it very well because I’ve never experienced it before.
The parties were continuing to argue in January 2019 and continuing to live in the same home. As I’ve indicated, I am satisfied that the essential day-to-day life of the parties remained the same. Indeed, the parties were still continuing to have a sexual relationship. In January 2019, the wife texted the husband to say:
Happy New Year. It’s funny, you know. You do way more than tell me I don’t deserve feel special or cared about. You actually do it. Both Christmas Eve and New Year I spent without you this year. That really makes me feel good.
I pause here to observe that if the parties were separated, why would the wife be sending a message which clearly is intended to express her angst and upset at feeling ignored by the husband?
The Husband responded:
I don’t think I can do this any more. I am tired of the ups and downs. Just when I thought we were getting on track, here we are again. If you don’t know by now that you are special to me, you never will.
Again, why would the husband say such things to the wife if the parties were irrevocably separated and if the relationship was over and they were mere flatmates, as it were?
In March 2019, the wife messaged the husband to say:
I’ve been begging for your attention and quality time with you, time with someone who thinks about me, and I get five minutes of your time when you come in to get something to eat and then you drive off with things to do. Seriously? You wonder why I’m upset.
He responds:
You were upset before I left. I can’t handle the arguing any more. I want to be close to you but I can’t stand your behaviour.
Later, the wife tells him:
For someone who apparently hates seeing me hurt and upset, you haven’t said or done much to change it. You’ve forgotten what to do because you haven’t done it for so long.
with a sad emoji face.
The husband responds:
For someone who wants to be loved, you’re certainly doing your best to be unlovable.
And the wife responds:
You know what, don’t bother. It’s obviously too hard for you.
I’m referring there to exhibit 12.
The point is that these are the messages of a relationship that is in deep trouble, not a relationship that is over, particularly looking at the surrounding context, namely:
·the public reputation of, or the public aspects of, the parties’ relationship as set out in the affidavit of Ms D; and
·the day-to-day existence of the parties, as set out in the wife’s affidavit which I accept in terms of their day-to-day life; and also
·taking into consideration the evidence of Ms C.
In May 2019, the parties engage in further text messaging:
Wife: Sorry, I’m frustrated and lonely. I need someone to share my life with, someone who genuinely cares about me, and I want to be a positive part of someone’s life, not a burden.
with a sad emoji.
Husband: No need to be sorry. I understand. We’re just in a rut. Things will get better. I’m sorry I’m not there for you more …
Wife: I wish it was just a rut …
Husband: It’s probably more like a canyon. LOL.
[which I interpret as ‘laugh out loud’]
In later messaging which forms part of the same exhibit (exhibit 15), the wife thanks the husband for coming to the hospital with her and driving her son, Mr G, home that day and tells him that she’s off to bed and for him to enjoy his night. He responds by saying:
You’re welcome. I love you.
With a smile and an XO.
And she responds:
Really?
And he responds:
Yep.
with, again, a smiling type emoji.
In July 2019, the parties, as was their wont during the relationship, were continuing to exchange text messages quite regularly. It is clear that they were, even at that time, still arguing about matters that pertained to their interpersonal relationship.
Apparently the husband had recently paid for the registration and insurance on the wife’s car. He was obviously in a situation where he could afford to pay, and he did pay. The wife thanked him for doing that and sent a text to him saying she really appreciated and acknowledged everything he had done. He responded:
No worries. I love you. I guess the difference between you and me is that I would sleep in a pile of shit next to you … can’t help but feel like I’ve been taken advantage of today.
The wife responded with:
Taken advantage of? How?
And he says:
Don’t worry. It was just me feeling sorry for myself.
She says:
Perhaps you could tell me what I just did or said to piss you off so much.
Followed by:
I will borrow $1500 from mum to pay you back for my car. Thanks.
To which the husband says:
Don’t you dare.
And that’s a reference to the documents set out in exhibit 17.
I accept the wife’s evidence that, for Valentine’s Day 2020, she cut love heart shapes at home. The husband was asked about this and said that he thought those love heart cuttings related to Mr G and his girlfriend; Mr G was apparently living at the home at the time. The wife said that the love heart cutting was done by her for Valentine’s Day and I accept and prefer the wife’s evidence in that respect.
I now begin to approach the timeframe when the wife says that the relationship ended. Perhaps before I touch on that, I should also refer to this:
·In January 2020, the parties, as they had done throughout their relationship, went over Christmas to Town J where they stay at a particular motel for between one and two weeks, usually with the wife’s children and at times with the husband’s children.
·It is common ground that during this trip, the parties slept together in a double bed, very much as a couple. This was very much the public reflection, or, at least from the outside looking in, it very much looked like their relationship was continuing.
·There are various photographs in the evidence in relation to that trip.
I now begin to approach the date when the wife says they separated and that the relationship finally broke down.
In March 2020, the parties were engaged in some text messaging about the nature of their interpersonal relationship:
Wife: If you want this to work, you need to be real and consistent.
Husband: I am …
Wife: I’m confused as to why you have suddenly changed.
Husband: Changed for the good or the bad?
Wife: I don’t understand why you are suddenly trying to be nice after saying we’re not compatible any more. We are both after different things in life.
Husband: I always want to be nice and I will be when you are. I guess the answer to my question is “good” change. After nine years of ups and downs, the fact that we are still together still gives me hope for us.
Wife: We are still together because I’ve been putting your needs and wants before mine for years. I can’t wait any more. I want to be in a relationship that is as important as your job is.
And I pause here. It was suggested by the husband that the reference in his text message to the fact that they were ‘still together’ was a reference to staying in the same house. I reject that evidence. I am satisfied that the husband’s reference in that text message to still being together and the wife’s reply was very much related to their ongoing intimate relationship as a de facto couple. I do not regard these messages as being limited to sharing of a house. I simply do not accept that sharing a house was what they were about.
The wife says that the relationship finally came to a conclusion by May 2020. According to her affidavit, she was by that time:
…extremely unhappy in the relationship and tired of [Mr Strong]’s empty promises that he was going to (a) pay more attention to our relationship and make it a priority, (b) work less, (c) renovate the property and sell it … I stayed at home and supported him over all of the years to help him to build the business and I felt that he gave no consideration to my wishes. I said to [Mr Strong], “That’s it. I’ve really had enough this time. I need someone that gives a damn about our relationship and is going to be there for me. I am done. We are officially no longer”. [Mr Strong] replied, “Well, if that is what you want, ta ta”.
The wife also says that, in mid-2020, she and the husband had a conversation in which she said that, as he would no longer be financially supporting her, she was going to Centrelink to apply for a pension. She sought his agreement that separation had taken place in May 2020 when she said the parties were “finally done”. She says that he agreed to that date. I accept the wife’s evidence.
The husband said that he had agreed to a separation date of August 2018 and I reject the husband’s evidence in that respect.
The wife went to Centrelink and filled out the relevant application for benefits and nominated the separation date as May 2020.
It is also clear that May 2020 is when the regular payments by the husband to the wife came to an abrupt halt.
Notwithstanding that the parties were separated, the wife continued to live in the Town B home with the children right up until March 2022.
It is clear that by late 2021 the husband was pressing the wife to move out and that she ultimately did so by agreement. Even then, the husband was still hoping for there to be some form of a relationship between he and the wife. When I say even then, I mean that after May 2020 the husband had clearly wanted to continue a relationship, at least for some period of time.
I have before me, as part of exhibit 20, some text messages exchanged by the parties in November 2020, where the husband was referring to getting the wife to do some shopping and to spending some time together with her.
The wife, in that message, referred to the fact that they had been doing their own shopping for the last six months, which is again consistent with the separation date of May 2020.
Notwithstanding the separation, it is clear, even though they were living under the one roof, that the parties still had sex on at least one occasion, which was when the husband had booked some sort of short holiday away with the wife and it is an agreed fact that on that occasion they had sexual intercourse.
CONSIDERATION OF WHEN THE DE FACTO RELATIONSHIP ENDED
When I weigh up the considerations in s 4AA, as I indicated earlier, there are matters which point in both directions.
Nonetheless, pursuant to section 140 of the Evidence Act 1995 (Cth), I am satisfied that the wife has made out her case that the separation was on or about May 2020.
It is true that the wife’s credit is somewhat impeached in the proceedings and I record that I am well aware of that in arriving at my finding. In particular, it is clear that she delayed going to Centrelink to tell them she was in a relationship with the husband until the year 2015. It seems to me that the wife should have gone to see Centrelink in about 2013 or at least 2014. She was left with a debt that they subsequently raised against her and which she has been paying off. It was quite apparent to me, watching the wife give evidence, that she was rather uncomfortable about this past aspect of the matter. But to be fair to her, the wife volunteered in her affidavit that she had gone to see Centrelink in 2015 when clearly, on the face of her material, the de facto relationship had started in 2013. So I am aware of that.
But I am also aware of various credit issues in the husband’s case as well.
In his first affidavit, filed on 30 May 2022, he said that the parties had separated ‘in late 2017’. He also said they stopped sharing a bed together and ceased their sexual relationship. A few observations flow from that. If he was so adamant that the separation was 9 August 2018, by reference to the $5,000 payment to which I’ve referred, it is extraordinary, or unusual perhaps, that he would forget that payment or otherwise put it to one side and conclude that they had separated in 2017.
In other words, the 9 August 2018 date was simply not as firm in the husband’s mind at the time of his first affidavit as it was by the time of his more recent trial affidavit.
Moreover, in his first affidavit, the husband said that they had ceased their sexual relationship in late 2017. He admitted in the witness box that that wasn’t true.
Moreover, in the husband’s 2019 income tax return, he nominated that the wife had been his spouse for tax purposes for the whole of that financial year, which of course ended 30 June 2019. The husband says that he didn’t read the form. That may or may not be so - but he did make that assertion and I am satisfied on balance, that, from his perspective, the relationship was ongoing.
Prior to instituting proceedings, the wife’s solicitors had sent letters to the husband’s solicitors - or then solicitors - in 2022, in an attempt to try and negotiate a resolution. The wife had asserted from the very outset that separation was May 2020, consistent with her discussions with the husband. Nowhere in the husband’s solicitor’s letters in response was the separation date questioned. It was only when he filed his response material that the husband then challenged the separation date and even then, as I have already indicated, he gave the separation date as 2017.
Mr Tregilgas submitted to me that it was not essential that the husband’s solicitor’s correspondence respond in terms of separation dates. As a strict matter of principle I agree with him, but in every pragmatic sense there was no benefit to the husband whatsoever in ‘keeping his cards close to his chest’ in terms of the separation date, particularly if he thought the wife’s application was out of time. Indeed, the logical, sensible thing for him to do would be to tell his solicitor at the very outset that the separation date was as he said it was. And one would think, in the context of pre-action procedures, that the husband ‘playing that card’ (if I can use that expression), would advantage him in a commercial sense. What better card to play in a negotiation context than to tell the other party that they might be out of time and not get a grant of leave to proceed? It just beggars belief to me why the husband would not have taken issue with that separation date earlier than he did - much earlier.
It is true, as Mr Tregilgas said, that these parties had a somewhat unusual relationship in that they continued to live under the same roof for quite some time after separation in May 2020, or August 2018 on the husband’s case.
I agree with him in the sense that it is clear that these parties were able to navigate their interpersonal difficulties in a way that enabled them to continue living together under the one roof, albeit, I would think, very unhappily. But for the reasons I have given, I do not consider that this makes any real difference in terms of the outcome in this case. When I review s 4AA(2) of the Act, I am satisfied overall and by way of conclusion that the parties were in a de facto relationship from early 2013 until on or about May 2020, that they had a common residence throughout that time and, indeed, shared the same bed for the bulk of that time. They had a sexual relationship throughout, albeit that the frequency of that relationship diminished over time. The wife was financially dependent upon the husband throughout. The wife had the occupation, as did her children, of the property at Town B and very much treated it as a joint property, though it was registered in the husband’s name. The parties maintained a degree of mutual commitment to a shared life, albeit that I accept that, particularly from 2017 onwards, their relationship had some fracture lines in it and that it was increasingly an unhappy relationship.
But a de facto relationship can subsist even if it is unhappy or turbulent.
The husband consistently supported and acted as a father figure to the wife’s children, although I note that he had difficulties with the wife’s son, Mr G, which necessitated two (2) AVOs being taken out by the husband against him. The husband very much acted as a father figure throughout and very much portrayed himself in a public way as being a father figure to them, as well as portraying that he and the wife continued to be in a relationship.
I accept the wife’s evidence that the husband had bought the wife jewellery in December or Christmas 2019, which is well over a year after he said that they had separated. I reject the husband’s evidence that the gift was purchased on behalf of the wife’s children.
I also accept the evidence of Ms C that, in early 2020, while they were on a day trip to Town K, she accompanied the husband to Services New South Wales to obtain an application to change her name. This is because Ms Vincent wanted to change her name from her biological father’s surname of L to her mother’s name of Vincent. I should add that I accept her evidence that this was a highly emotional time for her. I accept her evidence that she said it meant a lot to change her name and that the husband said to her, “You and your mum should change your name to Strong while you are here”. I accept her evidence about that.
It reflects the ongoing nature of the relationship between the husband and the wife, that notwithstanding the difficulties that they had, that their intimate relationship, their de facto relationship, was very much still on foot.
CONCLUSION & ORDERS
As I have indicated, weighing up all of this evidence and looking at the relationship holistically, I am satisfied that the wife has made out her case.
In the circumstances, I propose to award the declaratory relief she seeks.
I propose to reserve the wife’s costs of and incidental to this hearing and deal with that issue another day. I may or may not be asked to make a costs order. It’s entirely a discretionary matter.
I certify that the preceding one hundred and twelve (112) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Betts. Associate:
Dated: 23 June 2023
[1] Exhibit 4
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