VOLEN & BACKSTROM
[2013] FamCA 40
FAMILY COURT OF AUSTRALIA
| VOLEN & BACKSTROM | [2013] FamCA 40 |
| FAMILY LAW – PROPERTY – DE FACTO RELATIONSHIP – Dates of commencement and ending of de facto relationship – Declaration made that de facto relationship existed between the parties between December 2005 and 22 April 2010 |
| Family Law Act 1975 (Cth) ss 4AA, 90RF, 90RD(1) and (2), 90SB, 90SM Evidence Act 1995 (Cth) s 140 |
| Clisbey & Viges [2011] FamCA 611 Dubois & Inwood [2011] FMCAfam 1337 Hibberson v George 12 FamLR 725 Jonah & White (2011) FamCA 221 Moby & Schulter (2010) FLC 93-447 Ricci & Jones [2011] FamCAFC 222 Vaughan & Bele [2011] FamCA 436 |
| APPLICANT: | Ms Volen |
| RESPONDENT: | Ms Backstrom |
| FILE NUMBER: | BRC | 11985 | of | 2010 |
| DATE DELIVERED: | 31 January 2013 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | O'Reilly J |
| HEARING DATE: | 24 and 25 September 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Shoebridge |
| SOLICITOR FOR THE APPLICANT: | Hall Payne Lawyers |
| COUNSEL FOR THE RESPONDENT: | Dr Sayers |
| SOLICITOR FOR THE RESPONDENT: | Harrington Family Lawyers |
Declaration and order
IT IS DECLARED
A de facto relationship within the meaning of s 4AA of the Family Law Act 1975 (Cth) existed between Ms Volen and Ms Backstrom between December 2005 and 22 April 2010.
IT IS ORDERED
The costs of both parties are reserved to the trial judge in the primary proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Volen & Backstrom has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: (P)BRC 11985 of 2010
| Ms Volen |
Applicant
And
| Ms Backstrom |
Respondent
REASONS FOR JUDGMENT
Overview
It is common ground that Ms Volen (the applicant) and Ms Backstrom (the respondent) were in a de facto relationship between Easter 2006 and November 2007.
The applicant contends, and the respondent denies, that the de facto relationship commenced in December 2005 and ended in April 2010.
Unless I am satisfied that the parties’ de facto relationship continued to exist as at 1 March 2009, the Court has no jurisdiction to entertain the applicant’s claim for a s 90SM property order.
The applicant claims that the de facto relationship existed for at least 2 years: s 90SB(a); or in the alternative she made substantial contributions of a kind mentioned in s 90SM(4)(a)(b) or (c) and a failure to make a s 90SM order would result in serious injustice to her: s 90SB(c)(i) and (ii).
In what will be seen, it is not necessary that I determine the applicant’s alternative claim in order to enliven jurisdiction.
The making of a declaration that a de facto relationship existed, and the period of such, does not involve the exercise of a discretion. Rather, the determination underlying any declaration is based upon determination of fact.
The applicant bears the onus of proof in relation to the existence of the de facto relationship in the periods denied by the respondent, that is, between December 2005 and Easter 2006 and between November 2007 and April 2010.
The standard of proof is the balance of probabilities. However s 140 of the Evidence Act 1995 (Cth) requires consideration of the matters in s 140(2) of that Act.
Applications
In the primary proceedings (defined in s 90RD(1) of the Family Law Act 1975 (Cth) (the Act)), the applicant seeks against the respondent an alteration of property interests pursuant to s 90SM of the Act.
Prefacing her claim for relief in the primary proceedings the applicant seeks the following declarations pursuant to s 90RD(1) and/or (2) of the Act:
A declaration that:
a. the applicant and the respondent were in a de facto relationship for more than 2 years for the purposes of s 90SB(a) of the Act: s 90RD(2)(a)
b. the relationship commenced in December 2005 and ended on 22 April 2010: s 90RD(2)(a), or in the alternative:
c. the period or periods in which the applicant and the respondent resided in a de facto relationship: s 90RD(2)(a); or in the alternative
d. the applicant made substantial contributions of a kind mentioned in paragraphs s 90SM(4)(a), (b) or (c): s 90RD(2)(c).
In the primary proceedings, the respondent seeks a declaration under s 90RD(1) that:
a. the applicant and the respondent were in a de facto relationship for less than 2 years for the purposes of s 90RD(2)(a); and
b. the relationship commenced in April 2006 and ended in November 2007: s 90RD(2)(a); or in the alternative
c. the period or periods in which the applicant and the respondent resided in a de facto relationship: s 90RD(2)(a).
History
The proceedings were commenced by the applicant in the Federal Magistrates Court on 22 December 2010.
On 28 November 2011, Howard FM ordered that the proceedings be transferred to this Court.
On 15 December 2011, Registrar Coutts ordered that the matter be listed to a callover. Notations to that order included that the matter is “ready for hearing on the threshold issue” and “requires a discrete hearing on the threshold issue”.
It appears that the parties have proceeded since on that basis, that is, that there be a preliminary hearing as to the matters the subject of the parties’ competing declarations under s 90RD(1) and/or (2).
On 3 February 2012, Murphy J set the matter down before Kent J for 2 days, commencing on 24 May 2012.
On that date, Kent J adjourned the matter, on the applicant’s application, based upon the non availability of a witness, Mr K.
On 14 June 2012, Murphy J listed the matter before me.
It is common ground that the listing is only in relation to the “threshold issue”, namely the competing declarations sought under s 90RD(1) and/or (2).
Relevant statutory provisions
Family Law Act 1975 (Cth)
Section 90RF provides:
SECTION 90RF APPLYING FOR DECLARATIONS
90RF Any party to the primary proceedings may apply for a section 90RD declaration.
Section 90RD provides:
SECTION 90RD DECLARATIONS ABOUT EXISTENCE OF DE FACTO RELATIONSHIPS
90RD(1) If:
(a)an application is for an order under section , or , or a declaration under section ; 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.
90RD(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.
Section 90SB provides:
SECTION 90SB WHEN THIS DIVISION APPLIES — LENGTH OF RELATIONSHIP ETC.
90SB A court may make an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL, in relation to a de facto relationship only if the court is satisfied:
(a)that the period, or the total of the periods, of the de facto relationship is at least 2 years; or
(b)that there is a child of the de facto relationship; or
(c)that:
(i)the party to the de facto relationship who applies for the order or declaration made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c); and
(ii)a failure to make the order or declaration would result in serious injustice to the applicant; or
(d)that the relationship is or was registered under a prescribed law of a State or Territory.
Section 4AA provides:
SECTION 4AA DE FACTO RELATIONSHIPS
Meaning of de facto relationship
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 (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
4AA(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 ;
(f)the degree of mutual commitment to a shared life;
(g)whether the relationship is or was registered under a prescribed law of a or Territory as a prescribed kind of relationship;
(h)the care and support of children;
(i)the reputation and public aspects of the relationship.
4AA(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.
4AA(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.
4AA(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.
When 2 persons are related by family
4AA(6)
… [not presently relevant]
Evidence Act 1995 (Cth)
Section 140 provides:
SECTION 140 CIVIL PROCEEDINGS: STANDARD OF PROOF
140(1) [Balance of probabilities]
In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
140(2) [Matters to be taken into account]
Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)the nature of the cause of action or defence; and
(b)the nature of the subject-matter of the proceeding; and
(c)the gravity of the matters alleged.
Legal approach
There are two periods in contest, December 2005 – Easter 2006 (the short period of some 4 or so months) and November 2007 – April 2010 (the much longer period of some 2½ years). In Ricci & Jones [2011] FamCAFC 222 the Full Court at [62] referred to Murphy J in Jonah & White (2011) FamCA 221 at [53] in which he made clear:
62. Further, at paragraph 53, Murphy J said:
It is, however, important to bear in mind that the emphasis on common residence (whether for varying periods of time or not) is but one of the specific factors enumerated within s 4AA of the Act. The section specifically provides that no particular finding in respect of that matter (or indeed any other specified circumstance) is “to be regarded as necessary in deciding whether the persons have a de facto relationship”. (emphasis added)
Having regard to the importance of the latter of these two periods, in particular, the question whether the de facto relationship continued to existed as at 1 March 2009, and for at least 2 years ending on or after that date, it is appropriate to consider the authorities as to the ending of a de facto relationship.
In Clisbey & Viges [2011] FamCA 611, Stevenson J, in a case concerning the de facto provisions in the Act, at [47] – [53] considered various authorities as to the date of parties’ “separation”.
47. A number of authorities dealt with the elements necessary to establish “separation” for the purposes of section 48 of the Family Law Act, for example Pavey & Pavey (1976) FLC 90-051 at pp 75, 211 to 213 and Todd & Todd (2) 1976 FLC 90-008 at page 75,078. These elements are:
·intention
·action
·communication.
48. This analysis was applied to a de facto relationship by McGuire FM in Aitken & Deacon FMCAFam 35. His Honour said:
“9. Those authorities make it clear that there are three elements of separation in a legal sense. They are:
a. The development of an intention to separate. That intention need not be mutual.
b. The communication of that intention to the other party. In my view such communication should be unambiguous and unconditional.
c. Some form of action upon the determination to separate.
10. I am of the view that the test of the element of “communication” is an objective one.
11. As Watson J stated in Todd and Todd (No. 2) at [75,079]:
Separation can only occur in the sense used by the Act where one or both of the spouses form the intention to sever or not to resume the marital relationship and act upon that intention, or alternatively act as if the marital relationship has been severed.
12. The communication of the intention is an absolute requirement. Whilst that communication can be spoken or unspoken, it should be unequivocal, unconditional and unambiguous.
13. Whilst there are guiding principles, it remains that each case must be determined upon its own facts. As the Full Court of the Family Court of Australia said in Pavey and Pavey at [75,214]:
...it is not possible to apply some mathematical formula to these activities and determine whether a “separation” has occurred. Rather the evidence should examine and contrast the state of the marital relationship before and after the alleged separation.” (emphasis added)
Her Honour then referred to Hibberson v George 12 FamLR 725, in which the New South Wales Court of Appeal dealt with an application under the then De Facto Relationships Act 1994 (NSW), and extracted a passage from that case by Mahoney JA, with whom Hope and McHugh JA agreed as to the “ending” of a de facto relationship:
52.“The essence of the present relationship lies, not in law, but in a de facto situation. I do not mean by this that cohabitation is essential to its continuance: holidays and the like show this. But where one party determines ‘not to live together’ with the other and in that sense keeps apart, the relationship ceases, even though it be merely, as it was suggested in the present case, to enable the one party or the other to decide whether it should continue” … (emphasis added)
After setting out this passage, Stevenson J further said at [53]:
53. This approach was adopted by the Queensland Court of Appeal in S & B op cit. Dutney J, with whom McPherson and Williams JJ agreed, said:
“Applying the passage of Mahoney JA in Hibberson and George, which I set out earlier, a de facto relationship ends when one party decides he or she no longer wishes to live in the required degree of mutuality with the other but to live apart. It does not seem to me that it is necessary to communicate this intention to the other party provided that the party that is desirous of ending the relationship acts on his or her decision.” (underscore and emphasis added)
The decisions referred to by Stevenson J, with the exception of Aitken & Deacon, were not made in relation to the s 4AA meaning of “de facto relationship”.
Further, some of the decisions related to the end of a “marriage”, which is not apt in relation to s 4AA.
In Moby & Schulter (2010) FLC 93-447 Mushin J said, as to any “parallels” with marriage:
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. (emphasis and underscore added)
In Ricci & Jones (above) the Full Court referred, seemingly with approval, to Mushin J in Moby v Schulter (above) at 85,063 [140]:
19. The Federal Magistrate also had regard to the authorities on the determination of the existence of a de facto relationship including that of Mushin J in Moby v Schulter (2010) FLC 93-447 in which his Honour said at paragraph 85,063:
The second specific element is the concept of “living together”. In my view, if a couple do not live together at any time, they cannot be seen as being in a de facto relationship. However, the concept of “living together” does not import any concept of proportion of time. In particular, it does not require that a couple live together on a full-time basis … (emphasis and underscore added)
In Vaughan & Bele [2011] FamCA 436, Cronin J at [11] – [13] agreed with Mushin J and made other observations with which respectfully I also agree:
11. … [I]n 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]
[164]
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 …
12. 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.
13. … [T]here 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. (emphasis and underscore added)
Such matters need to be considered within the framework of s 4AA, which allows for such.
The evidence
The applicant relied on her affidavit filed 3 November 2011, the affidavit of Mr K filed 2 November 2011 and the affidavit of Mr B filed 2 November 2011.
Later in the proceedings it was discovered that the applicant’s affidavit filed 3 November 2011 as filed in the Court was missing annexures JVK5 – JVK10 (comprising all annexures to that affidavit), which annexures subsequently became ex 8. The annexures, as was conceded, had been attached to the served copy of that affidavit.
Later again in the proceedings, for reasons explained at Transcript 24 September 2012, T84/40 – T88/18, the applicant’s earlier affidavit filed 22 December 2010 came into evidence.
The respondent relied on her affidavit filed 2 November 2011, the affidavit of Ms H filed 2 November 2011, the affidavit of Ms N filed 18 November 2011, and an affidavit in reply of the respondent filed 13 December 2011.
The parties relied also upon documentary evidence exs 1 – 23. Exhibit 8, as I have mentioned, comprised annexures JVK5 – JVK10 omitted from the applicant’s trial affidavit filed 3 November 2011. Exhibits 1 – 6 were original “farm diaries” dating from 2005 to 2010. Exhibit 7 is a schedule of entries from the “farm diaries”, relied upon by the respondent; and exs 9 – 23 comprise various other documents as described in the list of exhibits.
If I do not refer to the evidence of any witness, or any of the documentary exhibits, it ought not be inferred that I have not taken all of the evidence into account. I have read all of the evidence, and taken all of it into account.
Agreed background facts
At the time of the hearing, both of the parties were 54 years.
Before the parties met, the applicant was employed in the education industry at School D, and a higher education institution, and lived in a home at Town C owned by her.
The respondent was a primary producer who owned and worked three properties, Property E, Property F and Property G.
Previously the respondent had been a public servant.
The applicant, as explained in her affidavit material, had a significant rural background, and a passion for rural interests and matters.
The following matters are set out in the applicant’s Counsel’s written submissions, pas 24 – 44, were expressly agreed to by the respondent, subject to some minor qualification, to which I will refer. For convenience, I will use the numbering in the applicant’s Counsel’s written submissions:
24. It is not in dispute that the parties first came into contact with each other via an on-line dating website in April 2005.
25. It is not in dispute that the parties physically met within weeks of their “on line” introduction and that they commenced a sexual relationship on the day that they first met.
Respondent’s qualification: The respondent’s qualification is that whilst she concedes that a physically intimate and sexual relationship commenced between the parties very shortly after meeting she is unable to be precise as to whether it was on the very day that they met in person (after first having met in an “online” relationship).
26. It is not in dispute that in December 2005 [the applicant] commenced living at [the respondent’s] residence at [Property F].
27. [The respondent] does not dispute that [the applicant] applied for and was granted long service leave from her [education industry] position in November 2005 (though [the respondent] did say that she was not aware that the Application was in fact made at the time).
Respondent’s qualification: The respondent concedes that the applicant “must have made” the application referred to, but does not concede “what was” the full extent of the applicant’s rights and entitlements at that time received from [the applicant’s employer].
28. The parties agree that a storm caused considerable damage to [the respondent’s] property at [Property F] in early January 2006 and that [the applicant] remained living at that property from January 2006 until December 2010.
29. The only caveat upon that assertion is to acknowledge that it is a feature of [the respondent’s] case that [the applicant] spent periods of time at other locations during that period and they are dealt with more specifically below.
30. It is not disputed that a de facto relationship between [the applicant] and [the respondent] was in existence by Easter 2006.
31. It is not in dispute that in July 2006 [the respondent’s] former partner [Ms R] commenced proceedings against [the respondent] under the Queensland Property Law Act, seeking an adjustment of property on the basis of a de facto relationship that had existed between them.
32. It is agreed that in August 2006 [the respondent] executed a Will (exhibit 10) that not only appointed [the applicant] as a joint executrix, but left to [the applicant] the bulk of [the respondent’s] estate. The value of that estate was clarified in the course of cross examination to be worth something in the order of $3 million at the time.
33. The value of [the respondent’s] estate at that time was referrable to the contents of exhibit 11, a Recognised Agreement entered into by [the respondent] and [Ms R] in around May, 2009.
34. Significantly, it is submitted, it appears to be agreed that, during the period between Easter 2006 and December 2007:-
(a)[The respondent] and [the applicant] did not attend upon [the applicant’s] family for special events; and
(b)[The applicant] did attend upon her family from time to time alone, including one occasion during in November 2006 when family photographs were apparently taken; and
(c)[The respondent] and [the applicant] would not act in an overtly affectionate way towards each other at public places such as [stock] sales; and
(d)[The respondent] and [the applicant] would not engage in social outings on a frequent basis as a couple (or individually for that matter) having regard to their obligations as farmers.
Respondent’s qualification: The respondent adds that the facts asserted in subparagraphs (a), (c) and (d) above are of “general application” in relation to the period ending in April 2010.
35. In February 2008, [the applicant] made a Will and appointed [the respondent] executrix of that Will. [The respondent] was the sole beneficiary under the terms of that Will.
36. [The applicant] also made an Enduring Power of Attorney in February 2008, appointing [the respondent] as her attorney. [The respondent] signed that document by way of acceptance of that role.
37. It is common ground that in May 2009 [the respondent] received a demand from her then solicitors for $40,000 to be applied towards legal costs in relation to the proceedings against [Ms R].
38. It is not disputed that the day after that demand was received, [the applicant] paid $20,000 to the trust account of [the respondent’s] solicitors in response to that request, though it should be noted that it is not in dispute that at the time, [the applicant] did request that [the respondent’s] solicitors not tell [the respondent] that [the applicant] had made such a payment.
39. It is not in dispute that in November 2009 [the respondent] underwent knee surgery at [a Brisbane hospital] and that [the applicant] was living at [Property F] during that period.
40. It is not in dispute that in December 2009 [the respondent] sent [the applicant] an email that reads:-
I love you [the applicant’s first name].
I want to be a big apart of my life
I want you in my life for a very long time
I love you with all my heart
I love you unconditionally
I want us to make a happy, healthy loving live together forever
Are you going to join me in this journey
All my love
[The respondent’s first name].
41. It is common ground that in January 2010 [the applicant] drove [the respondent] to Brisbane for the second round of operations on [the respondent’s] knees.
42. Nor is it disputed that in February 2010, and again in March 2010, [the applicant] drove [the respondent] to further medical appointments.
43. It is also common fact that in April 2010 a physical altercation led to an Application for a Domestic Violence Protection Order under the relevant Queensland legislation.
44. It is an agreed fact that [the respondent] did not change her Will of August 2006 until after the physical altercation in April 2010.
The respondent’s submissions, at pars 37 – 43 seek to add further matters which the respondent submits are “also undisputed facts in the matter”. These matters are:
37. First, that due to damage or deterioration to the property, it was not physically possible for the house to be locked up. This is because doors did not align with their apertures.
38. Second, there were a number of periods of short duration when the Applicant would leave the property. On some of those occasions, the Applicant’s own evidence is that she did so in order to give the Respondent “space” – sometimes but not always after a request that the Applicant “get out”.
39. Third, that on all occasions when the Applicant left the property in the circumstances just described, she always returned unilaterally and without prior notice to the Respondent.
40. Fourth, the Respondent too left the property for a number of periods of short duration, usually to go to the other farm property (although the parties dispute whether this was for the purpose simply of the management of that farm property or whether it was an example of the Respondent trying to get away from the Applicant).
41. Fifth, the Applicant organised and paid for the delivery to the property of a shipping container after the events of May 2009 (the parties disputing the reason why this was done and the intended purpose of the shipping container).
42. Sixth, that in 2009, the Applicant revoked the nomination of the Respondent as her attorney under the 2008 Enduring Power of Attorney.
43. Seventh, that the SMS messages that appear in annexure C to the Respondent’s evidence in chief are examples of texts that passed between the parties.
The applicant, after the filing of the respondent’s written submissions 24 October 2012, did not file any written submissions in reply (as was available pursuant to order 3 made on 25 September 2012). Despite this, I am not able to accept that all of these matters are undisputed by the applicant either without context or clarification or according to her evidence. For example, in relation to the third matter the word “unilaterally” is not objective because on the applicant’s case when she left the property for short visits away on most occasions such was to give the respondent “space” such that the applicant always intended to return; further the seventh matter is confined to the period May – July 2009.
When did the de facto relationship commence
The applicant, in her trial affidavit filed 3 November 2011, referred to the parties meeting in April 2005, the commencement of their sexual relationship then or soon afterwards and her many visits to the respondent’s Property F between April and December 2005.
The applicant did not suggest however that the parties’ de facto relationship commenced in April 2005, but in December 2005. As to this, the applicant in her trial affidavit filed 3 November 2011 said:
33. On 23 December 2005 I returned to [Property F] after escorting my elderly parents on a 10-day trip to Perth to visit my sister. …
34. By the end of December of 2005, [the respondent] and I were cohabiting at [Property F] on a full-time basis. Many of my clothes and a large number of my personal and farm possessions were already stored at [Property F] after my many weekends and school holiday visits there.
35. By January 2006 I began to more actively record daily farm activities in farm diaries for both personal and taxation purposes. On 4 January 2006 a wild storm wrecked havoc on the [Property F] property. It created significant property damage to the home, farm structures and improvements on the property. The roof of the home was blown off causing significant damage to personal and business property located in the home. For the next 6 month period the house was completely rebuilt.
36. It was during this period (late December 2005 to January 2006) that [the respondent] and my plan to remain together as a couple in the one household was solidified and from that day forth we continued to share the same bed, eat and prepare meals and attend to public aspects of life as life partners, particulars of which are documented below. (emphasis added)
Earlier in that same affidavit, at pars 11 – 32, the applicant referred to the “plan” which she says she and the respondent had formulated towards the end of 2005, after the respondent’s mother had died.
The applicant said further in her affidavit filed 3 November 2011:
22. After seven months of commuting between [Town C] and [Property F], and as our relationship strengthened, we discussed and worked towards a future together where we would build a home on one of the properties, downsize and enjoy the rural lifestyle as we entered our mid-50s.
23. [The respondent] and I formed a plan for our life together in these first few 5 or 6 months. These plans included developing [Property E] (at Town A), build a stone house on the property [Property G] ([near Town W]) which is approximately 4km from [Property E], and find a caretaker to look after, or sell [Property F] (north of [Town I]). It is a 200 km round trip between properties. I refer to paragraphs 39-47 of my Affidavit filed 22 December in relation to these plans and some of the progress we made towards realising those plans.
24. As stated, [the respondent] and I shared common interests in the land and farm animals, especially [stock], horses and working dogs. After lengthy discussions during our many working and private times together, it was the wish of both [the respondent] and I that we would commence cohabitation on a full time basis in December 2005 and that I would cease work and work full time on the properties with [the respondent], for our joint benefit.
25. Because of those discussions with [the respondent], I engaged in communication with [the director of the higher education institution] after the September school holidays about my future with this organisation.
26. I negotiated with the [director] at that time that due to my large accumulation of Long Service Leave and Sick Leave entitlements, that these entitlements be paid out at special leave rates or at half pay until they had expired. A request was granted on 18 November 2005 that I would have LSL at half pay until 23 June 2006.
…
28. On 5 October 2005, we purchased 31 [head of stock] to place on [Property E]. We then purchased new feedlot bins and began utilising the 250 head feedlot on the property. Between October 2005 and 18 October 2006 we purchased 155 [head of stock] to place in these feedlot pens.
29. [The respondent] will no doubt object to the term “we” being used in the previous paragraph. I did not contribute financially to the purchase of these [stock]. I did however assist with the arrival of the animals and/or collection, unloading, drafting, [tasks required with the stock] and data recording. I assisted with collecting and placing feedlot bins, filling bins and pushing down grain on a daily basis and ensuring adequate water supplies for these [stock]. At this time in our relationship, “we”, meaning [the respondent] and I were making mutual or combined decisions about continued farm operations.
…
38. On 20 June 2006, I applied for and was granted further LSL at half pay until 27 December 2006. An application form was faxed to me on … ([Property F] fax) as this was my new home. On 11 January 2006 [sic; query 2007], I applied for and was granted LSL at special leave rates until 31 December 2007. On 20 June 2007, I completed my final Application for Leave form, stipulating that “I wish to extend my current leave until my long service leave entitlements have been completed”. That same day I completed my Notice to Cease Employment stating “I wish to resign upon completion of my long service leave entitlements.” My retirement date is recorded on my Pay Advice as 27 February 2008. On this date I had to forfeit 200 hours of sick leave entitlements.
…
40. During the December 2005 / January 2006 period I arranged a mail re-direction order with Australia Post to ensure my mail was delivered to [Property F]. Over subsequent months and years, I had arranged change of address documentation for my bank, telephone, electricity and insurance accounts and other personal mail. As well, I updated other personal details such as telephone numbers and emergency and contact details on private forms such as medical and employment records to show my new [Property F] address and contact numbers. (emphasis added)
The applicant in her affidavit filed 22 December 2010 earlier had said:
19. The respondent and I had regular discussions from the very commencement of our relationship in 2005 that I would leave my employment and go and live with the respondent at her [Property F] property. We shared common interests in the land and farm animals, especially [stock], horses and working dogs, and both loved working with wood. After the respondent’s mother passed away in August 2005, we discussed and worked towards a future together where we would build a home on one of the properties, downsize and enjoy the rural lifestyle as we entered our mid-50s.
20. Shortly after the death of the respondent’s mother, I submitted my intention to resign. The respondent was aware that I had done this and it was both her wish and mine that we would commence cohabitation on a full time basis at the end of the 2005 school year. It was agreed between us that I would work with [the respondent] on a full time basis on her properties once I finished my [education industry] employment. (emphasis added)
In her oral evidence, the applicant said that the respondent first spoke of an ongoing relationship “around the time of her mother’s death”, August/September 2005; and that whilst the word “commitment” is “not in the respondent’s vocabulary”, from that time onwards she used words of similar meaning.
The applicant, in summary, relies on the following matters to prove that the de facto relationship commenced in December 2005 (taken from the agreed facts and/or the applicant’s affidavit material):
1. The parties commenced cohabitation together in December 2005 at Property F.
2. The parties were sexually intimate between December 2005 and Easter 2006 (and indeed had been since after April 2005, as mentioned).
3. The applicant in mid November 2005 had arranged with her employer long service leave at “half pay” until 22 June 2006, which was granted on 18 November 2005; in mid June 2006 applied for and was granted further long service leave at “half pay” until 27 December 2006; on 11 January 2006 [sic; query 2007] applied for and was granted long service leave at special leave rates until 31 December 2007; and in mid 2007 completed her final application for leave form and a notice to cease employment stating “I wish to resign upon completion of my long service leave entitlements”.
4. From October 2005 onwards (that is, before December 2005/January 2006) the applicant and the respondent organised the purchase of stock (paid for by the respondent) but with the applicant assisting with arrival of the animals, unloading, drafting, tasks required with the stock and data recording and according to the applicant she and the respondent by the end of 2005 were “making mutual or combined decisions about continued farm operations”; having earlier agreed, in about August/September 2005 that at the end of the 2005 school year the applicant and the respondent would commence cohabitation on the full time basis at Property F, the applicant would cease her [education industry] employment and instead would work with the respondent on the respondent’s properties.
5. From December 2005 onwards she and the respondent shared the same bed, prepared and ate meals together and attended to public aspects of their life as partners.
6. By December 2005/January 2006 the applicant had arranged mail redirection to Property F.
The respondent says however that as at December 2005 she and the respondent were “still courting” (oral evidence) and said in her affidavit filed 2 November 2011:
11. When [the applicant] finished work at the end of the 2005 year at [Town C], she came to stay with me for a holiday for the period of the school holidays. That was mid-December in the school holidays in 2005 and January 2006.
12. The arrangement for the December school holiday period at the end of 2005 was that [the applicant] was only to stay for the period of the holidays and she was then returning to [Town C] where she worked [in the education industry] for the commencement of the 2006 school year.
13. On 4 January 2006 a wild cyclone like storm took off the roof of my house and extensive damage was done to my property. In effect, my house had to be gutted and rebuilt.
14. Near the end of the school holidays, in January 2006 [the applicant] offered to take some long service leave or leave without pay and stay on and give me a hand with the cleaning up. There was no talk of [the applicant] staying any longer than one school term. There was no talk of us being in a de facto relationship or living together on a longer term basis or any type of commitment to a future together. We were purely friends.
15. [The applicant] did not meet any expenses for me except perhaps picking up something in town that she thought we both might like, as friends do for each other. I did pay other people who helped clean up the house including [LL], [Ms J] and [Mr J]. [The applicant] had always said that she didn’t want any pay and keep was enough.
16. I agreed to [the applicant] staying on for the first term in 2006, telling her at the time it was only on a temporary basis. It was supposed to be for one term and I accepted it as simply a good friend helping out someone who had gone through a disaster. There was still no talk of anything longer term in January/February 2006.
…
21. Towards the end of that first school term, just before Easter, in 2006, [the applicant] and I started talking about [the applicant’s] wish to stay on at my property. Over a number of weeks leading up to the end of the school term in 2006, we discussed [the applicant] staying on.
It is common ground, as earlier mentioned, that a de facto relationship existed as at Easter 2006, and indeed, as expressed by Dr Sayers in his written submissions “by” Easter 2006. Reference to the gazetted Queensland school holiday periods show that Term 1 ended with the Easter school holidays (10 – 18 April 2006), with Term 2 commencing 19 April 2006.
The respondent’s evidence in my view does not sit well with the applicant’s evidence, which I accept, that in November 2005 that she arranged long service leave for the half year January – June 2006 and that the request in fact was granted as at 18 November 2005; and her evidence, which I also accept, that she arranged mail redirection with Australia Post in December 2005/January 2006 for delivery of her mail to Property F.
Although the applicant makes clear that other notification matters (banks etc) were a “process”, completed over “subsequent months and years”, the circumstance that the applicant commenced this exercise in the December 2005/January 2006 period is consistent with her evidence of making her long service leave arrangements with her employer before the end of 2005.
None of these actions in my view is consistent with a person who, according to the respondent’s case, had been invited to stay “only” for the December 2005/January 2006 school holiday period, but who, fortuitously, was available to “stay on” after the storm on 4 January 2006.
Further, the respondent’s evidence that in her belief the applicant made her long service arrangements in January 2006, after the storm, is contrary to the applicant’s evidence as to the timing of this, which I accept.
The respondent said in her affidavit filed 2 November 2011:
22. I had, not long before “meeting” [the applicant] online in April 2005, broken up with my previous partner, [Ms R] who only vacated my property for the second time in 2004. …
…
24. Before the start of the second school term, I agreed for [the applicant] to stay on and we became more serious though I was still tentative, still going through the breakup of my previous relationship. The relationship was tenuous. [The applicant] would leave the property for days/weeks on end when it suited her. I shall set out a number of periods when she left the property, some because I had asked her to leave. (emphasis added)
The respondent’s evidence, at par 24 of her affidavit, is quite at odds with her concession for the purpose of the trial that the de facto relationship commenced at Easter 2006, to the extent of her proclaiming the relationship then to be still “tentative” and “tenuous”, which evidence seems contrary to her own case.
I am persuaded by the internal consistency of the applicant’s evidence to accept it, with the necessary result of rejecting any of the respondent’s evidence inconsistent with the applicant’s evidence. Further the respondent’s evidence, in parts, seems untenable. For example, it is unlikely, I think, that the respondent would have told the applicant, when “agreeing” to her “staying on for the first term in 2006”, that such was “only on a temporary basis”: respondent’s affidavit, par 16 (above).
Rather, the applicant said in her oral evidence, which I accept, “If there was any doubt in my mind, I would have been out of there”. In context, as I understood her evidence, its effect was that unless there had been commitment between herself and the respondent as at December 2005, she would not have taken the steps she did to relocate her life from Town C to Property F, including making the very definite changes which she effected concerning her personal affairs, as mentioned.
I had full opportunity to observe the applicant’s demeanour over the two days of the trial, and found her to be a gentle and dignified woman, somewhat shy, and further a woman who spoke truthfully about the matters the subject of her evidence.
Looking back to s 4AA, I find, and find further that the matters of significant weight are:
s 4AA(2)(b): The women had a common residence between December 2005 and Easter 2006; the applicant had moved in her clothes and a large number of her personal and farm possessions; they prepared and ate meals together; they shared during that time all of the farm and other chores; and had commenced to make “mutual decisions” about farm matters.
s 4AA(2)(c): They shared a bed, and a sexual relationship existed for the whole of that period.
s 4AA(2)(d): Whilst there was not financial dependence, or interdependence, the parties had agreed by December 2005 that the applicant would give up her employment and live at Property F.
s 4AA(2)(f): By December 2005 the parties had formed a life plan, with mutual commitment to a shared life and had commenced to execute it.
s 4AA(2)(i): They attended to “ public” aspects of life as life partners.
I find, in all of the circumstances mentioned concerning the relationship of the applicant and the respondent, that between December 2005 and Easter 2006 they had the relationship of a couple living together on a genuine domestic basis.
Accordingly, I find that the applicant has discharged the onus upon her of proving that the parties’ de facto relationship commenced in December 2005.
In making my findings, I am mindful of the matters in s 140(2) of the Evidence Act, in particular in the context of the significance to the parties of my determination of fact.
In making my findings, I have considered the various factual events and matters set out in Dr Sayers’ written submissions relied upon by him, including his submissions based on such. None however is persuasive, being based either on minor isolated factual matters the subject of agreement, but which are circumstances of little weight or importance; or evidence of the respondent which I have said I have rejected where it is inconsistent with the applicant’s evidence.
When did the de facto relationship end
It is not necessary to refer to the applicant’s evidence in relation to the period until November 2007, as the existence of the de facto relationship up until that time is common ground, but rather to refer to the applicant’s evidence for the period November 2007 – April 2010.
The applicant said in her affidavit filed 3 November 2011:
55.[The respondent] and my relationship was one that involved regular sexual intimacy.
56.Our first sexual encounter occurred on Friday 29 April 2005 at [Property F].
57.[The respondent] and I kissed each other at the start of each day, usually in bed, and we engaged in intimate sexual relations on a regular basis during the period from 29 April 2005 until early March 2010. I remember this last occasion as it was immediately after we returned from Brisbane together. We always kissed each other ‘good night’ and in the later years I often went to bed earlier than her because I was so physically exhausted. We spoke or sent text messages daily on our mobile phones when we were away from each other. I have disclosed and am able to produce my mobile phone records recording messages received and sent from [the respondent].
58.I set out in more detail below, [the respondent’s] physical health issues. From mid 2009, as her physical health deteriorated, she found it difficult to engage in sustained, active sexual relations. We relied more on adult toys, massaged each other regularly and discovered other ways of satisfying each other both in the bedroom and elsewhere.
59.We had a massage table and we would often bring it out into the lounge room and massage each other with specially purchased massage oils. We installed the wood heater in May 2008. Often after a massage, we would then move onto the queen mattress in the lounge room and watch movies together, and spend the whole night there in front of the fire with all our dogs around us.
60. Since I have known [the respondent] she has always relied heavily on daily medications, including anti-inflammatory drugs, pain killers and anti-depressants. She was also a chronic smoker until October 2009. We had discussed together that one of the side effects of these drugs is a low libido, something which [the respondent] had complained of to me.
61. I also observed, and we had discussions about, [the respondent] being menopausal and suffering hot flushes on a daily basis. To offset these problems we purchased and read adult novels in bed together, watched adult movies. I had no reason to suspect that [the respondent] had engaged in any physical intimacy with any other person during the period 29 April 2005 to 22 April 2010.
62.By the end of 2009 we no longer shared a bath together as [the respondent] had difficulty getting in and out of it but we would often make food platters and enjoy a drink and some biscuits as we chatted when one of us bathed.
63.We would shower together several times a fortnight and were intimate on occasions in the shower during the period April 2005 until March 2010. We would also shower together in our neighbour’s home and at the homes of close friends.
64.Even in 2010 we would often hold hands together as we walked back to the house from either the [landmark] on the hill or after parking the vehicle in the shed. This was often a great comfort for [the respondent] as she had difficulty with walking up or down the hill surrounding the house. I would also offer [the respondent] support to climb stairways as her knees became increasingly painful.
65.Until March 2010 we would regularly sit on the back steps or outside in the garden with our morning coffee and then remove our shirts and bras to check each other’s bodies for tick bites and tree pear infections. On a very regular basis I would check [the respondent’s] back for blackheads and pimples as she lay in the bed beside me. She would then do the same for me.
66.On Tuesday morning 6 April 2010, as we cuddled [M] our dog in bed together, [the respondent] says: “You are very special and both your mummies are blessed.”
67.[The respondent] and I shared a bed until 10 April 2010. I recall that evening as we had attended dinner at [Mr B’s] house that evening. [The respondent] held my hand and told me ‘she loved me’ in front of this neighbour. We would often hold hands and touch each other affectionately in front of [Mr B] at his residence.
The applicant said in her affidavit filed 3 November 2011:
54. [The respondent] has told me that she has suffered from anxiety and stress and her medical records she has disclosed reveal she was diagnosed with depression and obstructive sleep apnoea in 2000. By late 2009, there were occasions, where I would choose to leave our bed and sleep in the second bedroom or leave our residence for days at a time when I felt uncomfortable with [the respondent’s] mood or when I sensed she needed space to cope to cope with her deteriorating health and financial difficulties. Invariably, when [the respondent] resumed her medication, controlled her drinking and managed her depression, I would return to our shared bed. After the domestic violence incident on 11 April 2010, I moved into and slept in the second bedroom. [The respondent] confirms this when she writes on 15 April 2010 in a document entitled “Agreement between [the applicant] and [the respondent]”: “[The applicant] is to continue sleeping in the 2nd bedroom” [Annexure JVK6 attached]. (emphasis added)
Several things arise from this paragraph.
First, in her oral evidence the applicant said to the effect that because she and the respondent were in a committed relationship “I had made a commitment for better or worse, in good times and bad times and in sickness or in health”.
Secondly, the document JVK6 (part of ex 8) was prepared by the respondent apparently on or about 15 April 2010. It contains 4 short clauses, clause 1 providing that “[The applicant] is to continue sleeping in the 2nd bedroom”; clause 2 referring to a shipping container (the subject of comment in the fifth of the contended further undisputed facts set out by the respondent earlier referred to, with the parties disagreeing the use and purpose of the shipping container); clause 3 referring to the applicant moving from the respondent’s property by 2 July 2010; and clause 4 providing that on and from 3 July 2010 should the applicant come onto any property of the respondent such would be unlawful.
However, the events of 22 April 2010 intervened.
The applicant says that she did not agree to the document JVK6 prepared by the respondent, did not sign it and on 18 April 2010 drew her own document headed “Relationship Agreement DRAFT 1”, JVK10, to which I would refer without setting out (part of ex 8) save for clause 10 which provided:
10. Both parties agree that they are responsible for the future direction of their lives and agree that they will show each other respect and dignity as they work towards determining their own future paths.
The applicant’s document contemplated that the respondent should place a “tick” next to clauses she agreed with and to offer alterations for items she felt “uncomfortable” with.
The applicant dealt with financial matters in her affidavit at pars 68 – 98, which I will not set out, but describes that initially the parties were financially independent and that despite a degree of separateness of property and bank accounts, in many respects their financial affairs became “inextricably mixed”.
The applicant at par 110 said that “like most relationships” she and the respondent had their “ups and downs” which the applicant said were sometimes aggravated by “the adverse situation we were in” being “trying to farm during a drought as well as deal with [the respondent’s] medical issues”.
She said at pars 111 - 113 that she had “always been faithful and totally committed” in her relationship with the respondent, but that “relationship difficulties” were experienced towards the end of 2009:
111. I had always been faithful and totally committed in my relationship with [the respondent]. However, we began to have relationship difficulties towards the end of 2009. [The respondent] was a chronic smoker, smoking in excess of 50 cigarettes a day. She was also menopausal and very moody. Because [the respondent] had difficulty with daily physical tasks, and since she had limited opportunities for mixing with others, I accepted and allowed her the space and freedom to seek companionship through the internet.
112. I am aware of her intimate conversations and liaisons with [Ms Z] in September and October 2009. I never commented on them. I continued to look after [the respondent] around the home and continued to ensure the welfare of all the animals, knowing fully well that [the respondent] was in chronic pain and searching for something in her life.
113. When that online relationship ceased, I knew of [the respondent’s] exchanges with [Ms Y]. I began to have suspicions about [the respondent’s] integrity and honesty in January 2010. At 2:03pm on 24 February 2010, [the respondent] emailed [Ms Y]: “I’m in a dark space with [the applicant] and I can’t seem to see any solution …” … (emphasis added)
At par 114 the applicant refers to an email sent by the respondent on 19 October 2009 to “…” stating “I’ve had a 15 yrs relationship and a four yr and now just waiting and seeing what happens”: see JVK5 (part of ex 8).
The “15 yrs” relationship seems plainly a reference to the respondent’s earlier long-term relationship with Ms R. The “four yr” relationship can relate only to the applicant, suggesting a continuous or ongoing relationship (not just “friendship”) with the applicant which, as at 24 February 2010, the respondent seemed to acknowledge was still on foot, although she (the respondent) was in a “dark space” at that time with the applicant.
I would refer also to pars 101 – 104, 123, 124 and 125, which I will not set out, as to examples of closeness and commitment continuing well beyond November 2007 and indeed until late 2009/early 2010. Further, I would refer to pars 180 – 183 and 187 – 195 as to family and friends who, the applicant said, were aware that she and the respondent were a couple living in a same sex relationship. See also pars 198, 200 – 204, 207 – 213, and 215 – 223 as to other persons with whom the applicant said she and the respondent interacted as a couple.
In her oral evidence, the applicant said, poignantly, that “We lived at the end of a remote road, so being public is just our neighbours”; and “We didn’t go out in public much except to [stock] sales”.
The applicant said in her oral evidence in relation to several matters the subject of evidence by the respondent:
1. The respondent did not say to her in November 2007 that the relationship was over and did not in 2007 put her clothes in the garage [the applicant’s clothes], but rather, this had occurred in 2009, and “there was nothing to suggest at the end of 2007 anything” in relation to the end of the relationship. The applicant said that she remembered November 2007 quite well, and that she and the respondent had spent most of that month breaking in horses.
2. The applicant rejected the notion that there had been no sexual relations after November 2007 and said emphatically “NO – we had sex right up until April 2010”.
3. The applicant said that “sometimes” she moved into the second bedroom if the respondent “needed space” but that she could “count on one hand” over five years the number of occasions on which that happened.
4. The applicant said that the respondent had problems “coping with stress”, and mental health difficulties (detailed in the applicant’s material) and that “I made a commitment to [the respondent] for better or worse, in sickness and in health, in good times and in bad times” and that “constantly, throughout the whole period of the relationship, including after November 2007”, the respondent was “constantly telling me and texting me that she loved me”.
5. On 1 January 2010, she and the respondent were “lying in bed”, and that even at that late stage “the respondent said that she loved me”. (emphasis added)
As to the “farm diaries” (exs 1 – 6; and see the respondent’s extract of relevant entries: ex 7), the applicant said that she disputed that 11 March 2008 was one of the occasions that the respondent told her to “get out” and said that it was not true that on that date the respondent asked her to leave the property. She said, saliently, that “If [the respondent] had asked me to leave I would have put that in the diary”.
The applicant said that the relationship was difficult, and at times unhappy for both of the parties, but that when there were fights, and the respondent would tell her to “get out” or to “leave”, she, the applicant, sometimes left for short periods to allow the respondent some “space” so that the respondent could calm down and that repeatedly she would return to the respondent’s property, their loving relationship continued, both sleeping in the same bed, with the continuance of their sexual relationship and with loving verbal exchanges and their “commitment” exchanges; and this continued up until April 2010.
The applicant in her affidavit filed 22 December 2010 at pars 83 – 88 said that on 19 April 2010 she left a message for Ms H, a public servant in a justice administration role and friend of the respondent, “seeking advice and help as the violence was escalating”.
On 21 April 2010 Police Officer O attended at Property F and subsequently determined that “the parties be separated by a Court Order”: applicant’s affidavit filed 22 December 2010, annexure JMVK6. Subsequently domestic violence orders were made against each of the parties. On p 3 of 8 of the applicant’s protection order application (JMVK6), par 12, there is a reference to “spousal relationship” (box ticked) and “reside together as a couple” (box ticked).
Whilst these are the notes of Police Officer O, his description of the parties as such adds weight to the evidence that the applicant and the respondent, even as late as 19 April 2010, were regarded as a “couple” living together as “spouses”.
I have considered the possibility that this particular part of the information recorded by Police Officer O might have been given to him by the applicant. However, Police Officer O made clear that he had interviewed both the applicant and the respondent, as detailed at Part 19.A of annexure JMVK6, and that he had formed the view that the parties very much were still in a “relationship”, referring at p 6 of 8 that there would be “lengthy delay in the resolution of property dispute stemming from the dissolution of this relationship”, and that “the applicant officer is of the opinion that the parties be separated by a Court Order so the likelihood of further incidents is reduced”.
In that document, as recorded by Police Officer O, the respondent told him that she wanted the applicant to leave her residence, and wanted the applicant “out of her life”; and that the applicant had told him that the respondent “could not survive without her” and that she “must stay and reason” with the respondent.
The “separation by Court Order”, it appears, occurred on 22 April 2010.
According to the document prepared by the respondent dated 15 April 2010, it would appear that by this she communicated unequivocally for the first time to the applicant that she wanted a complete end to the parties’ relationship.
The respondent’s case, it will be recalled, is that the de facto relationship ended in November 2007. Her case is that between then and 22 April 2010, she continually tried to have the applicant leave her home, insisted that the relationship was over and that she and the applicant ceased to have sexual relations in November 2007.
The respondent relies first upon an event which she says occurred in November 2007, in which she told the applicant to “Get out, get out”; packed all of the applicant’s clothes and put them in garbage bags in the garage, telling the applicant that she wanted her to leave; and subsequently upon a series of events between then and 22 April 2010 in which, she says, continually she told the applicant to “get out” and to “leave”, but the applicant would not leave; that the applicant was “bullying” the respondent, and “intimidating” her; and that, in effect, she was so overborne that she simply could not get the applicant to leave until there was police intervention in April 2010.
The respondent’s case thus is that for some nearly 2½ years after November 2007, she could not get the applicant to leave her home.
The respondent said in her affidavit filed 2 November 2011:
35. By the end of 2007 things with [the applicant’s] controlling demeanour did not get any better and by November 2007 I had told [the applicant] that I wanted her to leave my property, that I did not want to be in a relationship with her.
36. I had a number of those types of conversations (asking her to leave), and had them often, between November 2007 and when the Police removed her from my property in April 2010. [The applicant] would refuse to leave. I will talk more about my efforts to get her to leave peacefully later in this affidavit. It seemed that no matter how many times I asked her to leave, she just refused to. It was as though she did not take in what I was saying and she just thought it was some sort of joke.
37. In approximately November 2007 I packed all [the applicant’s] clothes and put them in garbage bags and put them in the garage, telling her I wanted her to leave.
38. When I was over at the other blocks ([Property E] and [Property G]) working, she brought her clothes back inside my house telling me that she didn’t want [Ms P] (my cleaner) to see them in the garage. She wouldn’t leave. She kept telling me that I did not mean it.
39. One of the problems in 2007 was that I would catch [the applicant] telling lies. She was also a bully and intimidated me.
40. When [the applicant] brought her clothes back into the house I put them in the second bedroom. There was no physical relationship after November 2007. I did not change my mind and did not recommence a relationship with her.
41. Despite my asking her to leave in November 2007, [the applicant] suddenly started doing things that we had discussed back in 2006 when we were talking about forming a more committed relationship. After November 2007, she started behaving as though she was somehow thinking we could have a relationship, but I had clearly informed her in November 2007 that I did not want a relationship with her when I asked her to leave. (emphasis added)
I would refer also to pars 42 – 44 without setting them out.
Later in the same affidavit the respondent said:
52. In 2008 [the applicant] became even more dominating. She knew how to “push buttons”.
53. On a second occasion I moved her belongings out of the house telling her to leave. Whenever I took steps to get her out of the house, [the applicant] would forcefully tell me that I was not to tell her what to do with her life. That was her constant theme after November 2007. That and her telling me that I had to love her and had to write telling her that I loved her.
…
58. I tried hard to persuade [the applicant] to leave at the beginning of 2008. In or about 5 February 2008, I asked her to leave and I have written in the farm diaries “[the applicant] to [Town C]”. She came back and moved in again on 15 February 2008. I remember this time as I accidently ran over one of my farm dogs while [the applicant] was off my property.
59. [The applicant] went to [Town C] on again from 6 to 8 March 2008.
60. On 11 March 2008, [the applicant] has reported “lots of words spoken in anger today”. I had again asked her to leave.
61. On 13 March 2008, [the applicant] recorded “a difficult day”. Again I had been quite strenuously telling her to leave through out this time. (emphasis added)
The respondent said further that during “summer 2007/2008”, during an argument involving physical violence she told the applicant, who “had started to become more physically intimidating”, and “had a very intimidating manner”, that she wanted her out of her life and her house “now”: pars 65 – 71.
She said that on several occasions she was so frightened by the applicant and her “intimidation” that she would drive off the property and sleep in her car: pars 73 – 76.
She said that the applicant “refused to accept” that the respondent did not want to be in a relationship with her and that “I wanted her to leave”: par 79.
The respondent said further:
80. On 21 December 2008, [the applicant] wrote in my farm diary “Difficult evening – Lots of anger words spoken and possessions thrown about!”. In my handwriting I recorded “Yes told to get out AGAIN”.
81. On 5 March 2009 I went to [Property G] to get away. On 9 March 2009, [the applicant] arrived with food and grog and told me that I could live on [Property G] and she would live at [Property F]. I told her to be out of my house by the time I got home at the end of the week.
…
83. On or about 6 May 2009 I told [the applicant] in no uncertain terms that I wanted her to leave my house and get out of my life for good. I gave her 10 days to move all of her goods and chattels from my property because I was not allowed to touch any of her belongings.
84. During that 10 days I moved over to my [Property G] property and lived in a leaking caravan, with no toilet or shower facilities. I told [the applicant] I would be returning on 15 May and that I wanted her out of my house by then.
85. The day after I went to [Property G], [the applicant] turned up there with a TV and some food and said that I could live there in the caravan and she would continue to live in my house at [Property F]. I again told her to get out of my house and life.
86. When I returned home on Friday 15 May 2009, [the applicant] was still there.
87. I had a pre-arranged dinner with my neighbour, [Mr B], to which [the applicant] invited herself. I returned home about 9:30pm. At about 11:30pm [the applicant] burst into my bedroom announcing she was leaving. She left at midnight 15 May 2009 but came back around 6 July 2009.
88. During this period I had sent her numerous text messages asking her to come and arrange for the removal of her belongings. Annexed with the letter “C” is a copy of the text messages. (emphasis added)
I pause here to observe, without setting out the text messages at annexure C, that variously they are dated 20 May 2009, 25 June 2009, 2 July 2009 and 3 July 2009.
The respondent’s affidavit continues:
91. Then at the beginning of July 2009, I received a letter from Carvosso and Winship attaching a revocation of an Enduring Power of Attorney that [the applicant] had done. Annexed hereto and marked with the letter “D” is a true copy of that letter and revocation.
92. I thought that she was taking steps to leave my property in mid 2009 as she had a shipping container delivered to my property around September 2009 and some of her belongings were packed into it. It has however sat in my yard since that time despite me instructing my solicitor to write to [the applicant’s] solicitor in 2010 to ask [the applicant] to remove it at a time when I had arranged for the police to be present. She did not remove it. I have now removed some of her belongings to a garage on the property where she is staying, at my neighbours, [Mr B’s].
93. Many of the arguments from 2007 until April 2010 were started when I told [the applicant] to pack her things and leave. I recall one conversation with [the applicant] on 14 March 2010, during which she said to me “[The respondent’s first name], if I had a dollar for every time you told me to leave, I would have a massive deposit. I would have $100,000.00 deposit by now”.
…
95. [The applicant] insisted on staying telling me that I could not cope and that she would stay until I was back on my feet after my knees were replaced (surgery) but that was not my wish.
96. In November 2009 I had 2 arthroscopes to my knees. I attended a course in [Town C] shortly after the arthroscopic surgery and during the days I was participating in the course I felt the most at peace that I have felt for a number of years. I had also watched a program on unconditional love and when I returned to my home I wanted to hold onto the feelings and joy and happiness that I had managed to achieve whilst I was away from [the applicant].
97. I also think that I had been programmed by [the applicant] during those years to believe that all the “problems” (my wanting [the applicant] to leave) was my fault and it was because I wasn’t imparting “unconditional love” to [the applicant] to use her words.
98. I told [the applicant] that I would be prepared to re-establish a relationship with her. She told me to put it into writing and that she would think about it. I sent [the applicant] an email but overnight I again saw how controlling [the applicant] was and then very quickly told her that I did not wish to form a relationship and that I wanted her to leave. I had already sent the email though. (emphasis added)
Pausing there, the email which the respondent sent to the applicant was dated 1 December 2009: ex 8 (referred to already at par 40 of the “non disputed facts” set out above but which conveniently I will set out again here):
I love you [the applicant’s first name].
I want to be a big apart of my life
I want you in my life for a very long time
I love you with all my heart
I love you unconditionally
I want us to make a happy, healthy loving live together forever
Are you going to join me in this journey
All my love
[The respondent’s first name].
The respondent’s affidavit continued:
101. When I returned from the hospital, I found that [the applicant] had moved into my bedroom and she refused to move out of it. I was on a low dose of morphine patch for the pain. I had no energy at the time. Despite her moving her things into my bedroom, there was no physical relationship and there had not been since before November 2007. (emphasis added)
The respondent at pars 102 - 109 referred to further difficulties and physical violence and said (par 109) that on 11 April 2010 another argument ensued “after I had told [the applicant] again to get out of my life and leave my house”.
The respondent further said:
110. [The applicant] kept on belittling me and telling me that I could not live without her, that I was sick and needed her help. [The applicant] followed me around and continued this tirade.
111. I walked outside and she followed me. I returned to the house and she followed me. I eventually went into the kitchen and was near the microwave when [the applicant] came in with a crutch that I had left standing near the back door, and began poking at me saying that I had to listen to her and that she could if she wanted to kick me out of my own house and that she had every right to do so under the Domestic Violence Act.
…
115. On 14 April 2010, [the applicant] has recorded in my 2010 farm diary the following, “[The first letter of the respondent’s first name] ordered [the first letter of the applicant’s first name] to leave, yet again! I wish she would do something about her depression”. In her application [the applicant] has recorded separation as 18 April 2010 but I say it occurred many years earlier when I told her I did not want to be in a relationship with her in November 2007 and asked her to leave. (emphasis added)
Between 18 April 2010 and 22 April 2010 the respondent, at 116 – 118 described further violent incidents:
116. On 18 April 2010 there was another argument where I kept telling [the applicant] that we were not in a relationship and [the applicant] was saying “We are in a relationship. If I have to take this protection order against you, you are fucked. You are going to lose everything”.
117. On 19 April 2010, I went to see my general practitioner and she diagnosed me with anxiety. My anxiety was so bad that I had tightness all around my chest and neck and was having difficulty breathing.
118. On 21 April 2010 I became so frustrated that I thought I would lose my self-control and called the police. I wanted to relinquish my guns to the police. After I made contact with them I went to get my guns out of storage ready to hand them in but I could not find them. I asked [the applicant] where they were and she said that she had taken them and hidden them from me and refused to return them. (emphasis added)
The matter then culminated in the police involvement in relation to which Police Officer O on 22 April 2010 “made an application for domestic violence order against both of us”:
119. I then immediately rang the police again and told the police that [the applicant] had taken and hidden the weapons. Senior Constable [O] came to my house straight away. He took both our weapons away and he took [the applicant] away and on 22 April 2010 made an application for domestic violence order against both of us. [The applicant] was required to vacate my residence and not attend at my residence. (emphasis added)
The respondent said further:
130. After the Domestic Violence Orders were taken out by Constable [O], [the applicant] had a Justice Examination Order issued against me in 2010. I think she based it on something that happened around April 2008 when after many months of me trying to get [the applicant] to leave, I had started to believe that the only way out was suicide. I did not act on those thoughts that I was having at that time but [the applicant] produced a suicide note which was dated 5 April 2008. I do not recall writing that note. [The applicant] never showed me this note or spoke to me about this note but she obviously kept it and used it to take out a Justice Examination Order against me in 2010.
At pars 137 and 139 the respondent said:
137. There was no sexual relationship after November 2007 and before that it was in the nature of a casual relationship.
…
139. We never had any joint future plans that we sat and developed or dreamed about. From November 2007 I dreamed of [the applicant] leaving my property and getting out of my life. (emphasis added)
The curious thing is, however, the applicant said in her affidavit filed 3 November 2011, which I accept:
141. Between 14 – 18 November 2009, [the respondent] spent some time at my [Town C] residence recuperating. She returned to [Property F] with a collection of items from my [Town C] residence, after spending several days there. They included an intricately hand-carved wooden bookcase, horse book-ends and a collection of my wooden artefacts, including a crocodile, dolphin and a snake which she associated with her animal magic cards. She then set up a holy place in our bedroom with these and other items she collected from my [Town C] house, along with items purchased at various [spiritual] workshops she had attended.
In ensuing paragraphs the respondent detailed text and other messages and communications from the applicant after April 2010 until about April 2011 (pars 140 – 143) and said at 144:
144. I find [the applicant’s] behaviour after separation of texting me “creepy” but this is an example of how difficult it had been from November 2007 for me to make her understand that I wanted her to leave. She would leave but then come back. She would take steps that made it look like she was preparing to remove her property from my property but then not do anything to remove it. [The applicant’s] behaviour towards me makes me feel like I am being stalked by someone who is unbalanced. I wanted her to leave in November 2007 and despite the Police now removing her and it being some 12 months after the Police removed her she still professes “love” or “forgiveness” to me. (emphasis added)
I turn now to the parties’ Wills, and an Enduring Power of Attorney made by the applicant in favour of the respondent.
On 11 August 2006, the respondent made a Will appointing the applicant and Ms H her joint executors, by which she left modest bequests to several people totalling about $18,000, $50,000 to Ms H and the rest, residue and remainder to the applicant: ex 10.
The respondent did not alter her Will until 20 April 2010: ex 22; the new Will executed on that date left the bulk of her Estate then to her sister.
The respondent said at one point in her cross examination that she did not change her Will at or soon after November 2007, or at any time before April 2010, because of “oversight” on her part. This is inconsistent, I think, with her almost immediate conduct on 20 April 2010 in changing her Will.
In another part of her evidence the respondent said that, after 2007, she did not change her Will because she “still regarded herself in a supportive relationship with the applicant” and she was “a friend” of the applicant and that they “continued to each want to help and benefit the other in the nature of friends”, but, “no longer as lovers or partners”: paraphrased from Dr Sayers’ submissions, par 45.
The two stated positions of the respondent are plainly inconsistent. “Oversight” involves not thinking about a matter. The contrasting version shows positive thought. Neither is likely to be true, when one considers the nature and importance of a Will.
The applicant made a Will dated 25 February 2008 appointing the respondent sole executrix and sole beneficiary. The applicant also on that date executed an Enduring Power of Attorney in the respondent’s favour in respect of both health and financial matters, and the respondent signed that document by way of acceptance of that role: ex 19.
It is unlikely that the respondent would have accepted the duties in the Enduring Power of Attorney if, as she now states, she had wanted the applicant “out of my life” as at November 2007. See eg p 13 of ex 19, in which the respondent, by accepting the Enduring Power of Attorney, accepted the following responsibilities concerning the applicant:
ÄI understand that, by signing this document, I take on the responsibility of exercising the power I have been given in the document.
ÄI also understand that I must exercise the power in accordance with the Powers of Attorney Act 1998 and the Guardianship and Administration Act 2000.
Undoubtedly, thus, as at 25 February 2008, the respondent accepted considerable responsibility in relation to the applicant’s affairs. This surely is inconsistent with her case as to ending of the de facto relationship as at November 2007.
The applicant revoked the Enduring Power of Attorney on 24 June 2009. She said that she took this step then because she was concerned, by that time, with the respondent’s state of mental health.
The applicant was challenged in cross examination by Dr Sayers as to why the expression “my friend” was used in reference to the respondent in both the applicant’s Will and Enduring Power of Attorney, both 25 February 2008, suggesting both in the cross examination, and in Dr Sayers’ written submissions, that the use of the expression “my friend” instead of “my partner” or “my de facto partner” tended to show, indeed, tended to “prove”, that as at 25 February 2008 the applicant knew that the de facto relationship was over and hence referred to the respondent as “my friend”. The applicant responded in cross examination, candidly, and in my view honestly, that the terminology in both documents was a matter for her lawyer, who drafted them, and that at the time the words “my friend” “did not jump out at me”, and “I thought it was a standard legal phrase” and “I didn’t know there was an option”, as to the terminology.
Dr Sayers submitted that the applicant’s Will and Enduring Power of Attorney, each made on 25 February 2008, were made with the design and intention by the applicant to “insinuate” herself “back into the respondent’s life”, after the respondent had told her in unequivocal terms in November 2007 to “get out” and to leave the respondent’s home. I reject this. I have mentioned already that I had full opportunity during the trial to observe the applicant’s demeanour and found her to be a gentle and dignified woman, and somewhat shy. Further, she impressed me as a person unlikely to adopt such falsity of conduct. Moreover, it would be odd behaviour indeed to execute a Will and Enduring Power of Attorney in favour of the respondent if the relationship had “ended” three months earlier in November 2007.
I turn now to the evidence of Ms H and Ms N, for the respondent; and of Mr K and Mr B, for the applicant.
Ms H struck me as a witness hostile to the applicant, not only by the content of her affidavit, but also her demeanour in the witness box.
Ms H is a public servant in a justice administration role, a friend of the respondent for some 35 years and “a long term confidante of [the respondent’s]”. She said that she and the respondent were in the public service at the same time, but “not at the same [locations]”.
Ms H agreed in her oral evidence that she had never been asked by the respondent “How can I get this woman out of my house”.
Much of her affidavit presents as containing things the respondent told her and inferences she drew from those things. Curiously, she said “[The respondent] has never told me she was in a relationship with [the applicant]”: par 7.
Further, her affidavit seems to refer to isolated incidents, such that a cohesive or “whole” picture of the relationship of the applicant and the respondent between November 2007 and April 2010 was not able to be given by her.
Ms N was a legal practitioner for about 17 – 20 years, a grazier at the time of the trial.
According to the applicant, Ms N, at least as at December 2008/December 2009, lived with her same sex partner Ms X: affidavit applicant filed 3 November 2011, par 216.
Ms N commenced her affidavit by saying that she knew both the applicant and the respondent but “I do not know them well”; and indeed that she had met the respondent for the first time on 20 December 2008, and that “[The applicant] was with her”. She said in her affidavit (par 3) that on that occasion the applicant and the respondent “did not touch intimately”, “did not talk to each other in an intimate way”, “or a way where you identified them as being in an intimate relationship”, and that the respondent, indeed, appeared to her quite “reticent”. This perhaps is not surprising having regard to the agreed facts, par 34(c), that the applicant and the respondent “would not act in an overtly affectionate way towards each other at public places”. Although the occasion on 20 December 2008 was in Ms N’s home, a lack of overt touching seems unsurprising as neither the applicant nor the respondent previously had met Ms N.
Ms N said that the occasion of her meeting the respondent on 20 December 2008 was that the respondent had telephoned her in November 2008 and “introduced herself” saying there were “not too many women in the area who worked properties single handed”, so that the respondent wondered if Ms N was interested in meeting. Ms N said thus that she had organised for the respondent to “visit” on 20 December 2008. Possibly, this explains Ms N expressing surprise that when the respondent arrived the applicant was “with her”. However, whatever the respondent may have said to Ms N in November 2008, it is plain nonetheless that the applicant accompanied the respondent to Ms N’s home on 20 December 2008.
I need not set out the balance of Ms N’s affidavit, as not of particular assistance and, like Ms H’s affidavit being rather confined in its scope, save that, at pars 10 and 11, it appears to corroborate that the occasion when the respondent put the applicant’s “things” outside the house was 2009, not 2007.
Ms N impressed me as a “no nonsense” woman, an honest woman, and a dignified woman, who in her oral evidence said that, seemingly in about May/July 2009 “I distanced myself from them”, saying also “[The applicant] wasn’t going to leave and I couldn’t understand why someone would stay in a violent relationship”, is “how I would call it”.
Ms N then had no contact with either party until May 2010.
In essence, whilst I regard Ms N’s evidence as honest, it is unhelpful to the respondent.
In contrast, the evidence of both Mr K and Mr B, witnesses for the applicant, support her case.
Mr B indeed was an excellent witness for the applicant. Although a long term friend of the respondent, Mr B gave evidence for the applicant. In his affidavit, pars 1 – 7, he spoke “first hand” of his interactions with the applicant and respondent since December 2005. In par 7 he said:
7. … I remember a Friday in April 2010 when they held hands at my dinner table and told each other that they loved each other. I remember this because I was surprised and pleased with their mutual commitment despite thinking they might be having some relationship difficulties at this time. There was no indication to me on this night that they had planned to separate.
As to earlier times, he said in relation to 2009:
9. … I would see them holding hands and touching each other gently and they would throw kisses to each other when they thought I was not looking. …
10. They appeared to be happily in love … I know that [the applicant] and [the respondent] still slept together in that same bedroom in 2010 because I would often see them go to that room to collect something or put away washed clothes when I came over. Their bedroom door always remained open so it was obvious to me that [the applicant] and [the respondent] shared this bedroom. (emphasis and underscore added)
I would refer to, but not set out, the balance of Mr B’s affidavit as to his first hand observations of the applicant and the respondent in 2008 and 2009, eg, pars 11 – 23. Saliently, however he said at pars 24 – 30:
24. … I suspected they were having some relationship difficulties by the end of December 2009. …
25. I noticed more obvious changes in [the respondent’s] behaviour in early 2010. [The respondent’s] attitude was cooling towards [the applicant]. She became aggressive and irrational more often. …
26. By the start of 2010 I found [the respondent] to be quite contradictory in her statements to me. She often started saying to me “I can’t live with [the applicant], and I can’t live without her”. …
27. After [the respondent’s] operation and when she was recuperating she began saying to me “I just want [the applicant] out of my life”. …
…
29. [The respondent] and [the applicant] came to my house together every Friday for dinner until 10 April 2010. From my observations it appeared to be a happy relationship when I observed them together despite the increased tension around the time of [the respondent’s] knee operation.
30. I never heard [the respondent] use the word ‘separation’ until the day in April 2010 when [the respondent] appeared at my place with a separation agreement for [the applicant] to sign. I do not believe [the applicant] had any idea that their relationship was coming to an end. (emphasis and underscore added)
I would refer also to Mr B’s oral evidence at transcript 25 September 2012 T26/45 – 32/45 esp at T31/45 – 32/45.
Dr Sayers sought to distance the evidence of Mr B, a gentleman of 80 years, who attended in a wheelchair with a friend to assist him. In both his cross examination and submissions Dr Sayers endeavoured to impeach Mr B’s evidence as not impartial on the basis that the applicant lives at Mr B’s property and home Property T, is his carer in his home, thus sees him on a daily basis, performs many duties for him, and is paid for this a government carer’s allowance of $114 per fortnight. Mr B said that the applicant assists him with his cooking, cleaning, dressing and several matters and agreed with Dr Sayers that he is “reasonably dependent” on the applicant. However, it must be recalled that Mr B had been a friend of the respondent for 35 years, and did not know the applicant before 2005. Mr B, by his demeanour, manner of speech and evidence content, although 80 years, struck me as very much alive, with an excellent recollection, who gave direct, prompt, candid and unequivocal responses to questions, and as such was an impartial and honest witness.
Mr K was not required for cross examination. He is a “long time” friend of the applicant. His affidavit refers to several occasions of spending time at and visiting Property F in 2008 and 2009. Saliently, his affidavit contains:
23. My last stay with [the applicant] and [the respondent] at [Property F] was in March 2010. …
24. On this visit I witnessed frustration and aggravation between them as they were working together. Despite the tension between them during my stay with them, they were still sharing the same bed at this time. I know this as I was sleeping in the spare room.
…
26. During my various visits with [the applicant] and [the respondent] over the period 2006 – 2010, I never observed any changes in their relationship from when I first observed them together in 2006, except towards the very end. There was no indication to me from either [the applicant] or [the respondent] that they had separated or that they were just friends. They continued to be affectionate together, to share the same bed in the same room, and to work on the property together, although [the applicant] seemed to do a lot more of the farm and household work. Neither confided in me with respect to any relationship difficulties that they may have had, and such difficulties, if they existed, were not obvious to me.
27. On many occasions during my visits with [the applicant] and [the respondent], [Mr B] would come for dinner to [Property F], or I would be invited to his property next door with both of them. [The applicant] and [the respondent] seemed to be a couple at all times and would present themselves as such. They always called each other ‘darling’ during the whole time I knew them.
28. I am surprised given my observations of the couple, that [the respondent] is arguing she and [the applicant] were separated from 2007. This does not accord with my observations as they remained an affectionate and loving couple as far as I can recall even after that period. (emphasis and underscore added)
Before concluding reference to the evidence, I refer to the respondent’s case that Property F could not be locked. This was the first of the matters the respondent asserted as “further undisputed facts”. The respondent’s case thus is that after 2007 the respondent could not prevent the applicant from “returning to or gaining access” to the house on Property F. This begs belief. The mere means of physical access to a house property has no effect in my view on the respondent’s ability lawfully to have had the applicant restrained or removed if genuinely the respondent had wanted the applicant removed from Property F, whether as at November 2007 or at any time between that date and April 2010.
The respondent is a former public servant who worked in a justice administration role. She had a very good friend, Ms H, still in the that sector of the public service as at April 2010. If as at November 2007, or at any time after November 2007, and before April 2010, the respondent had wished the applicant to be forcibly removed from her home, plainly she could have asked Ms H to give such assistance as was necessary.
I do not think for a moment that the respondent, as a former public servant in a justice administration role, did not have the knowledge as to how to effect the removal from her home of an unwanted person. Further, I do not accept that the respondent did not have the ability to take such a step because she was so intimidated by the applicant that she was utterly “disempowered” from putting into effect any genuine will or intention on her behalf to do so.
Rather, it appears to me that, by and after November 2007, despite the “fights” which had emerged, and the unhappiness which seems to have crept into some aspects of the relationship between the applicant and respondent, the respondent had become so dependent upon the applicant that, as in the case with many committed relationships, the respondent had come very much to rely on the applicant for the respondent’s welfare, both emotional and physical, and in and about the respondent’s farming enterprises, including in respect of the bookkeeping for those enterprises and other matters requiring the applicant to continue residence in the respondent’s home, in a mutually committed relationship, despite “fights”, and at times unhappy and even violent events, until April 2010.
Dr Sayers relied on a number of authorities as “factually” consistent with the respondent’s case, eg, Dubois & Inwood [2011] FMCAfam 1337 esp at [51]. However, each case depends upon its own particular facts. Factual comparisons with other cases are not helpful, especially in relation to differing weight that a Judge might give to one or some of the s 4AA matters, or other circumstances, from case to case.
I am persuaded again by the internal consistency of the applicant’s evidence to accept it, with the necessary result of rejecting any of the respondent’s evidence inconsistent with the applicant’s evidence.
Further, again, I find that the respondent’s evidence in many parts, to which I have referred, seems untenable. For example, the respondent as a former public servant who worked in a justice administration role is unlikely not to have had knowledge of how to evict the applicant from her home between November 2007 and April 2010, the considerable period of nearly 2½ years, if genuinely she had wished to do so. In this regard, I reject also the respondent’s case that between November 2007 and April 2010 she was so “bullied”, or “intimidated”, or “disempowered” by the applicant as not to be able to “act” according to her own wishes, if genuinely she wished the applicant to “leave” and be “out of my house”. The evidence of Mr B and Mr K, which I accept, has effect that the respondent decided in April 2010 that she wanted to end the relationship, and have the applicant leave, and acted decisively, including promptly drawing the “Agreement between [the applicant] and [the respondent]” on 15 April 2010 and promptly changing her Will on 20 April 2010, neither of which, according to the evidence, she did either in November 2007 or at any time between November 2007 and April 2010.
As late as early 2010 Mr B said, which I accept, that the respondent had been “quite contradictory” in her statements to him, often saying “I can’t live with [the applicant], and I can’t live without her”. This evidence shows that even as late as early 2010 the respondent was indecisive and equivocal about firmly putting an end to the relationship with the applicant, and is consistent with the fact that it was not until April 2010 that there was unequivocal and unambiguous “intention, action, communication” by the respondent, as referred to in the authorities.
Looking back now to the s 4AA matters, I find, and find further that the matters of significant weight are:
s 4AA(2)(b): The parties had a common residence between November 2007 and 22 April 2010. Although there were short holiday and other visits by the applicant to her family; short times the applicant spent time away from Property F to give the respondent “space”, as explained; and short times by the respondent away from Property F, as explained; by and large the nature and extent of their common residence was continuous, with each sharing both the domestic aspects (eg meal preparation and participation) and working aspects (eg working the respondent’s farm properties) together.
s 4AA(2)(c): I reject the respondent’s evidence that she and the applicant did not have a sexual relationship after November 2007, and find, by my acceptance of the applicant’s evidence, that such continued between November 2007 and April 2010.
s 4AA(2)(d): I accept the applicant’s evidence, and find, that the parties between November 2007 and April 2010 had financial “interdependence”, as illustrated by the applicant’s evidence which I accept, referred to above.
s 4AA(2)(e): The parties, I find, used the respondent’s properties as a farming and stock enterprise; and also (not previously referred to above, but referred to in the applicant’s evidence, which I accept), used the applicant’s Town C property for their mutual purposes. There is also the circumstance that when the respondent stayed in the applicant’s Town C property as late as November/December 2009, she brought with her to Property F from Town C several personal items of the applicant referred to.
s 4AA(2)(f): Without hesitation I find on all of the evidence that the applicant and the respondent had a mutual commitment to a shared life, both before November 2007, and continuing, without interruption, until 22 April 2010; and further, that each was emotionally dependent upon the other in their committed relationship. I find that the respondent’s evidence as to repeatedly telling the applicant to “get out”, to “leave my home”, and “get out of my life”, was not a continuous “pattern”, but certainly occurred on some occasions, eg May 2009. Rather, I find that the circumstance of the respondent not taking steps to evict the applicant from Property F during the somewhat lengthy period November 2007 to April 2010 was not, as she alleges, by any “bullying”, or “intimidation” by the applicant but rather the respondent’s own commitment to the relationship with the applicant, and dependence upon it, particularly having regard to the respondent’s physical and other difficulties (knees, anxiety, stress, depression) as referred to in the evidence. Further, although the respondent sought to distance herself from her email to the applicant 1 December 2009, I find it expressed her genuine emotion and intent as at that time; fortified by her email to “…”, 24 February 2010¸ describing in effect that her current relationship (with the applicant) had subsisted as at 24 February 2010 for “four yrs”.
S 4AA(2)(i): As to reputation and the “public” aspects of the relationship, I accept the evidence of the applicant referred to, both in her affidavit and oral evidence; and that the “public” aspects of the parties’ shared life were limited to their locality and to stock sales; I accept also, in particular, the corroborative evidence of Mr K and Mr B already detailed as to the continuance of a loving and committed relationship between the applicant and the respondent and shared residence of the applicant and the respondent until April 2010.
I find, in all of the circumstances mentioned concerning the relationship of the applicant and the respondent, that between November 2007 and 22 April 2010 they had the relationship of a couple living together on a genuine domestic basis.
Accordingly, I find that the applicant has discharged the onus upon her of proving that the parties’ de facto relationship ended on 22 April 2010.
In making my findings, I am mindful of the matters in s 140(2) of the Evidence Act, in particular in the context of the significance to the parties of my determination of fact.
In making my findings, I have considered the various factual events and matters set out in Dr Sayers’s written submissions relied upon by him, including his submissions based on such. None however is persuasive, being based either on minor isolated factual matters the subject of agreement, but which are circumstances of little weight or importance; or evidence of the respondent which I have said I have rejected where it is inconsistent with the applicant’s evidence.
I am mindful that the respondent wrote her “Agreement between [the applicant] and [the respondent]” on 15 April 2010; and that the applicant wrote her “Relationship Agreement DRAFT 1” on 18 April 2010. I do not think however anything turns on these matters, such that the difference between 15 April and 22 April is de minimus. In any event the finality of termination of the relationship was effected by the “separation by Court Order”, to borrow the expression used by Police Officer O in the JVK10 document.
The relationship may have been “unhappy” for some considerable time before the parties’ final separation. However, as observed in the authorities to which I have referred:
·The nature of the parties’ relationship may evolve and alter dramatically over time: Vaughan & Bele (above) per Cronin J at [11]
·There is a distinction between unhappiness in a relationship, and it’s termination: Vaughan & Bele (above) per Cronin J at [13]
·Termination has a distinct finality about it: Vaughan & Bele (above) per Cronin J at [13].
Declaration
Accordingly I will declare that a de facto relationship within the meaning of s 4AA of the Family Law Act 1975 (Cth) existed between the applicant and the respondent between December 2005 and 22 April 2010.
Costs
In the circumstances, it is appropriate to reserve the costs to the trial judge in the primary proceedings.
I certify that the preceding one hundred and seventy (170) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly delivered on 31 January 2013.
Associate:
Date: 31 January 2013
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