Wall & Mitchell
[2012] FamCA 114
•21 February 2012
FAMILY COURT OF AUSTRALIA
| WALL & MITCHELL | [2012] FamCA 114 |
| FAMILY LAW - JURISDICTION – De Facto – Whether or not the relationship between the parties was a de facto relationship within the meaning of the legislation – Whether the relationship existed for the required two year period – Whether the applicant made substantial contributions within the meaning of the legislation – Where the applicant has failed to establish the matters required by the legislation – Declaration that a de facto relationship never existed – Application dismissed. |
| Family Law Act 1975 (Cth) – Part VIIIAB, s 4(1), s 4AA, s 90RD, s 90RD(1), s 90SB, s 90SB(a), s 90SB(c), s 90SM(4), s 90SM(4)(a), s 90SM(4)(b), s 90SM(4)(c), Family Law Rules 2004 (Cth) – r 10.13 |
| Miller and Trent [2011] FMCAfam 324 V and K [2005] FCWA 80 |
| APPLICANT: | Ms Wall |
| RESPONDENT: | Mr Mitchell |
| FILE NUMBER: | SYC | 3705 | of | 2010 |
| DATE DELIVERED: | 21 February 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Johnston J |
| HEARING DATE: | 25, 26, 27 & 28 July 2011 |
REPRESENTATION
| FOR THE APPLICANT: | Ms Wall in person |
| COUNSEL FOR THE RESPONDENT: | Mr Richardson, SC |
| SOLICITOR FOR THE RESPONDENT: | York Family Law |
Orders
That pursuant to s 90RD(1) of the Family Law Act 1975 it is declared that a de facto relationship never existed between Mr Mitchell and Ms Wall which would attract the application of Part VIIIAB of the Act.
That the Initiating Application filed by Ms Wall on 11 June 2010 as amended be dismissed.
That all costs be reserved.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Wall & Mitchell 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 SYDNEY |
FILE NUMBER: SYC 3705 of 2010
| Ms Wall |
Applicant
And
| Mr Mitchell |
Respondent
REASONS FOR JUDGMENT
The issue in these proceedings is whether this Court has jurisdiction to make orders for maintenance and property settlement in the circumstances of the relationship of the parties.
The applicant is Ms Wall, 34 years of age. The respondent is Mr Mitchell, 52 years of age.
The applicant asserts that the parties had a de facto relationship which would attract the application of the relevant financial provisions of the Family Law Act 1975 (Cth) (“the Act”). The respondent denies that the parties have ever been in a de facto relationship.
On 11 June 2010 the applicant filed an application seeking orders pursuant to the provisions of Part VIIIAB of the Act. This Part deals with financial matters relating to de facto relationships. The applicant seeks orders to the effect that the respondent pay to her an amount equivalent to the value of 30 percent of his property as well as periodic maintenance of $2070 per week.
The applicant had also sought an order to the effect that the respondent pay into her former solicitor’s trust account the sum of $150 000 by way of preliminary costs to assist her in the preparation of these proceedings. On 24 December 2010 I ordered that such application be dismissed for the reasons then given.
On 25 August 2010 the respondent filed his response. He seeks a declaration pursuant to s 90RD(1) of the Act that a de facto relationship never existed between the applicant and the respondent that would attract the application of Part VIIIAB of the Act. In the alternative the respondent seeks a declaration that any de-facto relationship that did exist concluded prior to 1 March 2009 and thus does not enjoin Part VIIIAB. The respondent also contends that if there were periods when the parties were living together in a de facto relationship such periods total less than two years and thus s 90SB(a) of the Act is not satisfied. The respondent seeks that the substantive application be dismissed.
The respondent sought, pursuant to r 10.13 of the Family Law Rules 2004, that the issue in relation to jurisdiction be determined as a discrete issue. I granted leave for this and listed the proceedings for hearing to determine the question of jurisdiction prior to any consideration of the substantive application.
The Applicable Law
Section 90SB of the Act provides as follows:
A court may make an order under section 90SE (maintenance), … or 90SM (property), or a declaration under section 90SL (property), 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.
[emphasis added]
Sub-sections 90SM(4)(a), (b) and (c) of the Act provide as follows:
(4)In considering what order (if any) should be made under this section in property settlement proceedings, the court must take into account:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
(i)to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii)otherwise in relation to any of that last-mentioned property;
whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
(i)to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii)otherwise in relation to any of that last-mentioned property;
whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and
(c)the contribution made by a party to the de facto relationship to the welfare of the family constituted by the parties to the de facto relationship and any children of the de facto relationship, including any contribution made in the capacity of homemaker or parent …
Section 4(1) of the Act provides that “de facto relationship” has the meaning given by s 4AA of the Act.
Section 4AA of the Act provides relevantly as follows:
(1) A person is in a de facto relationship with another person if:
(a)the persons are not legally married to each other; and
(b)the persons are not related by family …; and
(c)having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis. [emphasis added]
Paragraph (c) has effect subject to subsection (5).
(2) Those circumstances may include any or all of the following:
(a)the duration of the relationship;
(b)the nature and extent of their common residence;
(c)whether a sexual relationship exists;
(d)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e)the ownership, use and acquisition of their property;
(f)the degree of mutual commitment to a shared life;
(g)whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h)the care and support of children;
(i)the reputation and public aspects of the relationship.
(3)No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4)A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
(5) For the purposes of this Act:
(a)a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and
(b)a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.
(6)…
...
Section 90RD of the Act provides as follows:
(1) If:
(a)an application is made for an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL; and
(b)a claim is made, in support of the application, that a de facto relationship existed between the applicant and another person;
the court may, for the purposes of those proceedings (the primary proceedings ), declare that a de facto relationship existed, or never existed, between those 2 persons.
(2)A declaration under subsection (1) of the existence of a de facto relationship may also declare any or all of the following:
(a)the period, or periods, of the de facto relationship for the purposes of paragraph 90SB(a);
(b) whether there is a child of the de facto relationship;
(c)whether one of the parties to the de facto relationship made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c);
(d) when the de facto relationship ended;
(e)where each of the parties to the de facto relationship was ordinarily resident during the de facto relationship.
The applicant has the onus of establishing that a de facto relationship existed. The onus of proof is on the balance of probabilities: see s 140(1) of the Evidence Act 1995 (Cth).
A De facto Relationship of at Least 2 Years
The applicant asserted that the parties commenced a de facto relationship on 16 February 2008 and that this continued until 5 May 2010, thereby satisfying the requirement of at least 2 years duration. The applicant asserted that the parties conducted their relationship at homes owned by the respondent at Suburb M and Suburb P and at rented apartments at Suburb N.
On the other hand, the respondent denied that the parties were ever in a de facto relationship or that the applicant ever moved into his home to live. He said that they were in what he described as an “on/off boyfriend/girlfriend relationship” during the following periods:
·Mid to late June 2008 to 26 December 2008;
·31 December 2008 to early January 2009;
·End of January 2009 until early to mid April 2009 (12 April 2009 at latest) and
·End of November 2009 until mid January 2010.
Evidence and Credit
The issues about whether or not the relationship between these parties was a de facto relationship within the meaning of the legislation, whether if such it existed for the required two years and whether the applicant made substantial contributions within the meaning of the Act are very keenly contested. The respondent has filed affidavits by 24 witnesses in support of his denials concerning each of these matters.
In these circumstances, in my view, the credit of the parties and their witnesses is very important.
The respondent cross-examined the applicant and each of her witnesses, these being her mother, her sister Ms A and her sister Ms W.
On the other hand, the applicant did not cross-examine the respondent. She only cross-examined two of his witnesses. The effect of this is that I accept the truthfulness of the evidence of the respondent and his other witnesses, this evidence being unchallenged. The witnesses who were cross-examined by the applicant were Mr L and Ms V. Having had the opportunity not only to read their affidavits but also to observe them during cross-examination, I regard each of them to be truthful witnesses.
The applicant
The applicant was an unimpressive witness. She had considerable difficulty with the process of cross-examination. On the majority of occasions she was unable to give a responsive answer to the question. Many times she said things which were quite unresponsive and which appeared to me probably to have been said in the hope that such might promote her case.
Time and again learned senior counsel had to inform the applicant that her response was not responsive to the question asked and he asked the question again. On occasions this procedure had to be endured numerous times before the applicant would eventually answer the question.
On many occasions after this repetitive procedure had taken place, the applicant said that she did not recall, said something quite unresponsive or evaded the question.
On occasions I endeavoured to explain to the applicant that she had a duty as a witness to listen carefully to each question and to give a responsive answer. But my endeavours appeared to make no difference. The applicant continued to prevaricate or to take the opportunity to insert information which she probably perceived might advance her case.
On more than one occasion, when confronted with evidence which tended to indicate that the parties were not living together at a particular time, the applicant would say that there had been some “rocky patches” in the relationship.
There were many inconsistencies between things the applicant had said in her affidavits and her oral evidence. There were so many instances of inconsistencies in her evidence that I do not propose to start setting these out here. But just to take one area of her evidence as an example, the applicant initially denied that she had been in a sexual relationship with various men during the course of what she asserted was a de facto relationship with the respondent. Yet when pressed, she admitted to having had a sexual relationship with 3 men over this period, and invited another home to stay the night, which he did.
Some of these inconsistencies will emerge during my consideration of the evidence below.
I am afraid that I do not regard the applicant to be a truthful witness. Where her evidence is in conflict with that of the respondent and his witnesses, I confidently prefer their accounts.
Ms S
Ms S is the applicant’s mother.
She answered questions in a forthright manner. She also made concessions. For example, in her affidavit she said that between November 2007 to May 2010 she spoke with the applicant by telephone about three to four times per week. She said that the applicant told her during almost every phone call that she was in Suburb M or Suburb P. Ms S was aware that the applicant lived in homes owned by the respondent at Suburb M and at Suburb P. Ms S conceded that this was an exaggeration.
Ms S said that she thought that the applicant had spoken to her about a Dr Z but she had no idea that the applicant had any relationship with him, let alone a sexual relationship. Ms S also indicated that she had no knowledge of any other relationships which the applicant had with men during the period when Ms S understood that the applicant was in a relationship with the respondent “as a couple”.
Generally I regard Ms S as a truthful witness.
Ms A
Ms A is the applicant’s younger sister.
Generally Ms A answered questions in a forthright manner. Despite the fact that she was in regular telephone communication with the applicant over the relevant period she was only able to provide detailed evidence in respect of a limited number of matters.
Ms A did make some concessions. But I have reservations about accepting the entirety of her evidence.
Ms W
Ms W is the applicant’s elder sister.
Ms W also made some concessions. But I must say that in respect of some of her answers, I had the impression that Ms W was more focussed on assisting her sister’s case rather than doing her best to assist the Court to arrive at the truth of what had occurred. I certainly had a sense that she could have been more forthcoming with material relevant to questions asked of her.
During cross-examination Ms W conceded that the applicant had never actually said to her that she had moved in with the respondent. Ms W also conceded that, either the previous day or evening, she and the applicant had discussed some of the applicant’s evidence given in court that day and what she said the applicant described as “periods of rocky patches … throughout the (parties’) relationship”. She said that she was clarifying with the applicant the duration of the relationship and the parts that she was involved in it with the couple.
In any event, the applicant had not informed Ms W that during the period when Ms W understood that the applicant had a relationship with the respondent, in fact she had been having relationships with Dr Z and various other men.
Regrettably, I regard Ms W to be an unreliable witness. I accept the concessions she has made. But where her evidence conflicts with that of the respondent and his witnesses I have no hesitation in preferring the evidence of the latter.
Possible Witnesses
I also note that during the relevant period the applicant had two flatmates living in her apartment at Suburb N. One would have thought that they might have been able to provide affidavits supporting at least to some extent some of the applicant’s assertions. The applicant said that one of her former flatmates did not wish to be involved in the proceedings and that she was unable to locate the other.
Examination of Evidence Using Two Periods
The hearing ran for four days. Because of the large amount of evidence before the Court setting out in considerable detail material about the lives of the parties between approximately November 2007 and May 2010, in an endeavour to facilitate consideration of the issues, I have decided to examine the evidence over the whole period in two portions.
The first will be the period from 16 February 2008 to 26 December 2008. This is because the applicant said that the parties commenced their de facto relationship on 16 February 2008 and the respondent said that they called off their relationship on 26 December 2008. The second period will be from 31 December 2008 to 5 May 2010. The latter date was when the lease on the apartment at Y Street, Suburb N, leased by the respondent for the applicant, was relinquished.
But before doing this I propose to consider the issue about when the parties’ relationship came to an end. In my view it is essential to do this in order to place an outer time limit on the period of their relationship so as to be able to determine whether any de facto relationship within the required meaning subsisted for the period of at least two years.
The End of the Relationship
The applicant asserted in her oral evidence that the parties separated when she left the Suburb N apartment in early May 2010 at the time of expiration of the lease.
Yet in a letter dated 15 April 2010 from the applicant’s then solicitors to the respondent it was asserted on behalf of the applicant that the parties had separated finally on “approximately 21 February 2010”.
The respondent had written a letter dated 18 March 2010 to the applicant which included the following:
I am disappointed that our attempt to establish a relationship has not worked out.
I have not changed my mind from what I said on Sunday, 21 February. The relationship is over and I want to move on with my life.
I would also like you to leave the [Suburb N] apartment as soon as you can. I will deal with the landlord but I want you to tell me when you can move out.
I know it is not easy to find rental accommodation at the moment but please take the steps as it is difficult for me to keep hearing from you. I would like you to do this for me.
The respondent again wrote to the applicant by letter dated 9 April 2010. This letter included the following:
The lease for the apartment expires on 5th May 2010. As I have not heard from you regarding my previous communication of March 16 [sic], I was wondering what plans you have made to vacate the premises.
If you wish to stay in the apartment I would be happy for you to take over the lease in your name if that is better for you. Either way I wish to remove myself from the lease as soon as possible. If you do not wish to take the lease over […] is happy to market the property earlier than the expiry date with vacant possession.
I have advised […] that I will not be continuing the lease in any event from the 5th May 2010.
I really am sorry everything did not work out as we expected in early December and it is too late to go over all the things which I tried so painfully to discuss in February. I still believe that the trust issue killed us and without that what do you have.
The applicant conceded during her cross-examination that she did not “get back with [the Respondent] after 21 February 2010”. The applicant also conceded that after 21 February 2010 the only aspects of their relationship which remained were the fact that the respondent continued to pay rent on the Suburb N apartment, that he was asking her to vacate the apartment and that she was instructing lawyers to take proceedings against him.
However I note that they also attended a music engagement together on 26 February 2010. On 28 February 2010 the respondent asked the applicant to move out. The applicant conceded this in her affidavit. I note also that in her Amended Initiating Application filed on 20 July 2011 the applicant asserted that the date of final separation was 28 February 2010. In her affidavit sworn on 21 September 2010 the Applicant deposed that the parties’ relationship ended in late February 2010.
In my view, the evidence about this issue leads clearly to the finding that the parties’ relationship concluded not later than 28 February 2010.
Period from 16 February 2008 to 26 December 2008 (Boxing Day)
The applicant
The applicant’s evidence was as follows.
The parties lived together from approximately Valentines Day 2008. She had purchased tickets for the parties to attend a music festival on 16 February 2008. After the festival, they returned to the respondent’s home at Property 1, J Street, Suburb M and that she “basically moved in” with the respondent from that day on.
The background to this was that the parties had met on a boat in November 2007. They started to communicate by SMS text and by telephone. The applicant asserted that they had attended the respondent’s office Christmas Party in 2007 “as a couple”.
In late December 2007 or early January 2008 the applicant attended with the respondent at his Suburb P home. They became intimate but did not commence a sexual relationship on that occasion.
The parties commenced a sexual relationship on 16 February 2008.
The applicant applied for a position with an airline not long after meeting the respondent. The respondent spoke to her about his wish for her to be available to him as much as possible whilst not being “clingy”. They then discussed her working for the airline.
The applicant commenced training with the airline on 10 March 2008 and undertook her first working shift on … April 2008.
The daily routine of the parties would involve getting up at 6 am. They would then exercise and eat breakfast together. The respondent would work from home or from his office in the city. They would speak during the day about domestic matters and either she would shop for dinner or they would shop for dinner together. They would then cook together and the applicant would clean up.
The respondent asked her to retain her Suburb N apartment so that he could have periods of privacy at his Suburb M home in order to concentrate on work. The respondent was a very private person and asked the applicant not to publicise their relationship.
During the course of their relationship, she was financially dependent on the respondent.
She made significant contributions to the respondent’s welfare as a homemaker and by way of performing domestic duties including cooking, cleaning, packing for the respondent’s business trips, ironing and shopping for groceries. She also assisted him with his career and in the development of his homes at Suburb M and Suburb P.
During the parties’ relationship, she and the respondent attended many functions together as a couple including work Christmas parties, boat parties, family functions and the 2008 Melbourne Cup.
In 2008 she met the respondent’s mother at the respondent’s Suburb M home.
Ms S (the applicant’s mother)
Ms S’s evidence was as follows.
Ms S said that the applicant first spoke to her about her relationship with the respondent in approximately November 2007. She said that the applicant had indicated that she had met the respondent on a cruise on the harbour and thought that he was interested in her. She said that she was interested in him.
In July 2008 Ms S had an operation in Sydney for cancer and the applicant visited her in hospital on a couple of occasions. Ms S said that during those visits, at the end of the visits, the applicant would say that she had to go and help (the respondent’s first name) now.
Apart from these matters Ms S was unable to provide any direct evidence of details of the circumstances of the relationship of the applicant and the respondent during this period.
Ms A (the applicant’s younger sister)
Ms A’s evidence was as follows.
She and the applicant usually spoke to each other by telephone approximately weekly. During the period from late November 2007 to February 2010 the applicant came down to Wollongong where she resides, and saw her approximately once every three to four weeks. During these visits the applicant regularly spoke to the respondent on her mobile phone. She would hear the applicant making plans about where she and the respondent would go out that evening, what they would cook for dinner, what they would do together over the weekend or what place they would stay at together.
The applicant had spoken to her “constantly” about her relationship with the respondent over a period of about two or two and a half years.
The applicant first told her about her relationship with the respondent in or about late November 2007. During her cross-examination she said that she thought that it would have been “maybe six months” from that time to when she believed the applicant had moved in with the respondent, which was approximately June 2008. But she conceded that she could not recall that her sister had ever informed her that she was “now moving in with (the respondent)” or that they were “now living together, because there were so many different properties and … they moved between all the different places”.
No member of their family, apart from the applicant, had ever visited the respondent’s Suburb M homes although her mother and her sister Ms W had visited the Suburb P home.
When her mother had her health scare in 2008 the applicant had visited and supported her mother in Wollongong, including taking carer’s leave from the airline to support her mother during a period when she had to undergo a series of tests.
Ms A understood that the applicant continued to pay rent on her BB Street, Suburb N apartment so that she and the respondent could stay there because they both liked the social life in Suburb N. The applicant was unhappy about the prospect of losing this apartment.
Ms A had no knowledge that the applicant had been involved in relationships with other men during the time that she understood the applicant was in a relationship with the respondent, apart from her understanding that Dr Z was a friend.
Ms W (the applicant’s elder sister)
Ms W’s evidence was as follows
Because she lives in Wollongong she did not see the applicant often during the period from November 2007 to February 2010. But when the applicant was in Australia Ms W would generally phone her most nights.
During their telephone conversations over the period from February 2008 to February 2010, the applicant would inform her that she was either at one of the respondent’s homes or driving to or from these homes or about to meet the respondent. She did not recall more than a handful of times during the above period that the applicant told her that she was in Suburb N. As a result, she formed the view that the applicant had moved in with the respondent.
Her mother was ill with cancer in 2008. Whenever she asked the applicant to assist her with support for their mother the applicant said she was working, that the respondent needed her or that she was busy with the respondent.
The respondent
On the other hand the respondent’s evidence was as follows.
As at 16 February 2008 he was in a relationship with Ms R. He had started dating her in mid December 2007. He and she had spent most of January and February 2008 at his homes at Suburb P and Suburb N. Their relationship continued until approximately mid May 2008.
He spent 14 February 2008, Valentine’s Day, with Ms R at a beach in Suburb M.
On 16 February 2008 he attended a music festival with the applicant. He paid her for a ticket which she had bought that day. He went home alone that night and there were no sexual relations between him and the applicant.
On 17 February 2008 he hosted a party at his home at Property 1, J Street, Suburb M which went for most of the day and into the night. He did not invite the applicant. He did not recall seeing the applicant between that day and mid April 2008 although they communicated by telephone and SMS.
On or about 19 February 2008 his friend Mr D attended at his Suburb M home at 6am and they went boating until approximately 8.30 am when they returned to his home. Mr D also visited the respondent’s home during the early morning on 21 February 2008.
Over the weekend of 23 February 2008 he and Ms R were invited as a couple to attend a friend’s 50th birthday party in Melbourne which they did. They returned to Sydney on Sunday evening 24 February. Ms R stayed at his home that evening, all day the following day and the Monday night.
On Wednesday 27 February 2008 he went to Canada with Mr D for their annual ski trip. They returned from Canada on or about 16 March 2008. Mr D had separated from his wife and the respondent invited him to stay at his Suburb M home until such time as Mr D was able to arrange his own accommodation. Mr D lived at his home until June 2008 when he completed the purchase of a residence and moved into that residence.
Mr D stayed at the respondent’s home during this period 5 out of 7 nights each week. Mr D was the only person living with him at his home between mid-March and June 2008 when Mr D left.
In approximately April 2008 the applicant informed him that she had obtained permanent employment with the airline and had commenced training for extended shifts.
On … April 2008 he had a birthday lunch for his 49th birthday. He did not invite the applicant. The following day he attended a birthday party for a friend, Ms K. He did not invite the applicant to accompany him.
In April and May 2008 there were a couple of occasions when he attended at the applicant’s home at BB Street, Suburb N. He said that at that time his relationship with Ms R was winding down and he was endeavouring to establish a “friendship” with the applicant. He and Ms R continued to see one another until early May 2008 when she left for Sweden. They had discussed their future relationship prospects but were unable to make a commitment to one another because of their respective work commitments.
In approximately early May 2008 he and the applicant commenced their sexual relationship.
Between 18 and 29 May 2008 he went overseas on business to the USA and Canada.
On 7 June 2008 he and the applicant spent the evening at a hotel in the Blue Mountains which he paid for. After this occasion he and the applicant started seeing each other a little more although only on a few more occasions in June 2008 when she was in Australia.
From July 2008 they saw each other approximately two nights a week when the applicant was off work and in Australia.
In August 2008 the parties attended the opening of restaurant in Sydney organised by his friend Ms H. They arrived separately, the applicant doing so accompanied by a pilot and another person. The applicant spent most of the evening with the pilot and at the end of the party she gave the respondent a lift to his home and continued driving with the pilot and the other person.
In August 2008 the parties attended a play written by their friend Mr L and on … September 2008 they attended a birthday party for Mr HH, the respondent’s next-door neighbour.
In September or October 2008 they attended a function at the Museum of Modern Art and in November 2008 they attended an Emirates Melbourne Cup function in Melbourne staying two nights.
On or about 15 December 2008 he had a Christmas party on his boat for some of his friends. He said that he did all the cooking and the cleaning assisted by his guests. He said that although the applicant attended she did not undertake any of the cooking, serving or cleaning.
During the period from July until Boxing Day 2008 the applicant spent on average two nights per week at his home. On all occasions she would bring an overnight bag and on most occasions she would leave the next morning. Usually he did not see her until after dinner, approximately 8 pm, after he had been to the gym.
The parties spent Christmas Day 2008 with his brother’s family, then they broke up on Boxing Day 2008. He informed the applicant that the relationship was not going anywhere, that there was no use pursuing it further and that it was over. He said that she agreed and said that they should give each other a break.
Ms R
Ms R’s evidence was as follows.
She and the respondent started going out together in mid-December 2007. They spent most of January 2008 together mainly at the respondent’s Suburb P home. In early February 2008 she saw the respondent on average twice a week and would often stay overnight at either his Suburb M or Suburb P homes. They spent Valentine’s Day 2008 together and had dinner at a beach in Suburb M.
On the weekend of 23 February 2008 they attended the 50th birthday party in Melbourne referred to by the respondent above. Whenever the respondent introduced her to guests at the party he referred to her as his “girlfriend”. Upon returning to Sydney on the Sunday Ms R stayed overnight with the respondent at his home that night as well as the next. They also spent the Monday together. There was no other person living at the house, nor did she observe any female clothing, perfume, accessories or other sign to indicate that a woman was living at the home. She observed stale milk in the refrigerator and out of date foodstuffs.
After the respondent returned from his skiing holiday in mid-March 2008, she continued to see him and spent many nights at his Suburb M home. From approximately this time she noticed that the respondent’s friend Mr D was living at the home.
In March 2008 she and the respondent attended birthday drinks for Mr SS at a venue. Towards the end of March 2008 she formed the view that the respondent did not want a long term relationship but they continued to see each other until she went to Sweden in early May 2008.
During the period when she spent time at the respondent’s home up to May 2008, she used the ensuite bathroom regularly and at no time noticed any items that would give the impression the there was a female person living at the home.
She commenced a relationship when she was in Sweden with a man called Mr EA. She returned to Sydney in late May 2008 and resumed going out with the respondent on social occasions.
Mr D
Mr D is a close friend of the respondent. His evidence was as follows.
He commenced living at the respondent’s Suburb M home in approximately late March 2008 and continued living there for approximately five nights per week until he left on approximately 12 June 2008. During the period from Christmas 2007 to March 2008 he and the respondent went boating mid week on a regular basis. At no time during the period did he see the applicant, her car, clothes or other personal possessions at the respondent’s home. During that period the respondent spoke to him about Ms R but at no time spoke about the applicant.
During the time when he was living at the respondent’s home he only saw the applicant at the respondent’s home on two occasions, these being late one evening in May 2008 and one other occasion prior to him leaving the home on 12 June 2008. In all the time he lived at the home he never saw the applicant sleep over or stay at the home. He never saw at the home any women’s clothing, toiletries or other personal items which might indicate that the respondent was living with a woman.
After he ceased living at the respondent’s home, he and the respondent continued to go surfing and boating on a regular basis. During the period from late June 2008 to early December 2009 he saw the respondent regularly on a Friday or Saturday night at his home or at a local venue having a drink or a meal. He also saw the respondent on the early morning occasions when they went boating from the respondent’s home. At no stage did he see the applicant at the respondent’s home.
Mr RR
Mr RR is a friend of the respondent. His evidence was as follows.
During the period from November 2007 to June 2008 he saw the respondent up to seventy-five times. Between February and June 2008 he stayed overnight at the respondent’s home seven to eight times. On at least two of those occasions Mr D was also there overnight. During the period from November 2007 to June 2008 the only occasion he saw the applicant was the time that they first met namely 17 November 2007 which was on a boat.
Whenever he went to the respondent’s home it was messy with stale food in the fridge, unwashed dishes by the kitchen sink and dirty wine glasses. He considered the state of the fridge to be “symbolic of (the respondent’s) single bachelor lifestyle”. He saw Ms R at the respondent’s home on numerous occasions.
During the relevant period he went into the respondent’s bedroom on a couple of occasions to borrow a shirt or a jacket and never saw any women’s clothes, perfumes, accessories or items to indicate that a female person was living at the respondent’s home. Nor did he see any photos of the applicant at the home although he said that he had seen pictures of the respondent’s former girlfriend, Ms BC at the home.
Mr HH
Mr HH resides at the property next door to the respondent’s property at Property 1, J Street Suburb M. His evidence was as follows.
Mr HH said that he first met the respondent in approximately January 2008. He said that he and the respondent speak to each other once or twice a week for up to one to two hours on each occasion. He said that they visit one another frequently at their respective homes.
Mr HH said that he is able to look from his home and see into the Property 1, J Street, Suburb M driveway and carport area and that he can also see directly into the respondent’s main bedroom and living balcony as well as the pool area.
Mr HH first met the applicant on … September 2008 when she accompanied the respondent to Mr HH’s 50th birthday party at his home. Mr HH said that before that time he had never seen her with the respondent anywhere, including at Property 1, J Street, Suburb M.
Mr HH also said that in approximately January 2008 he met Ms R at the respondent’s Suburb M home. He said that he saw her with the respondent on a number of occasions up until March 2008
He said that in October 2008 he asked the respondent whether he was still seeing the applicant. He said that the respondent replied that he was but that the applicant was away a lot of the time, that she never told him when she was about to go overseas or when she would return. He said that the respondent also said that he did not view the relationship as anything permanent and that the applicant would not put him on Facebook as being linked to her.
Mr L
Mr L’s evidence was as follows.
He knew both parties separately before they first met in November 2007. He always considered the applicant to be a closer friend. Notwithstanding that he and the applicant had a close friendship and they saw each other frequently in 2008, he did not see the parties together at all between their introduction and August 2008.
Between November 2007 and August 2008 he saw the applicant regularly including at social events and functions he attended on which occasions he saw the applicant with men other than the respondent. On 26 March 2008 he invited the parties separately to a function on a boat on Sydney Harbour. If he had understood them to be in a relationship he would have issued one invitation to them as a couple. In any event, the respondent did not attend. During the course of the function he observed the applicant to speak with other men and that she appeared to become “intimately” close to one of the guests, Mr WM. Mr L observed the applicant and Mr WM leave the function together. The applicant subsequently informed him that Mr WM had spent that evening at her apartment.
In August 2008 he invited the applicant to a performance in Suburb N of a play which he had written.
From approximately September 2008 Mr L saw the parties at social functions together more frequently. There were numerous occasions between December 2007 and early December 2009 when he visited the respondent at her Suburb N apartment. He never saw a sign that the applicant was in a relationship with the respondent such as any photographs of him or them. He did not see any clothing or other items that might indicate that they were in a relationship or residing together.
Mr WM
Mr WM’s evidence was as follows.
He met the applicant on 26 March 2008 at a function organised by Mr L on a boat on Sydney Harbour. During the function he and the applicant flirted with each other. She informed him that she was single and did not have a boyfriend. Towards the end of the function he was talking to another woman. The applicant approached him and asked him whether he was going to take her home to which he replied that he was not sure. The applicant said in effect: “Don’t. Come home with me instead. You will have more fun.” The applicant took Mr WM to her Suburb N apartment where he stayed the night.
Ms H
Ms H’s evidence was as follows.
She is a close friend of the respondent. She first met the applicant in approximately August 2008 at the opening party at a restaurant. She had invited the respondent and during the course of the evening he asked her whether the applicant could attend the party to which she agreed. She observed the applicant to speak to everyone who was there except for the respondent. She said the only time she observed the applicant to spend time with the respondent that evening was when the applicant first arrived.
Between August 2008 and the end of February 2010 Ms H visited the respondent at his Suburb M homes more than twenty times. She only saw the applicant at his home once in all that time. This was an occasion when she, the respondent and the applicant had arranged to go out to dinner. The applicant said to her on that occasion that the respondent should visit her more often at her Suburb N apartment, otherwise he should pay for her petrol for coming to see him in Suburb M.
Ms H has stayed as a guest in the respondent’s homes on occasions, used the bathroom, been in the respondent’s bedroom on many occasions and been through most of the house. She has never seen any women’s clothing, sanitary items, perfume nor any other item that would indicate that a woman was living with the respondent or at his house. Nor has she seen any photos of the applicant or any other woman at the homes.
Ms H was aware that the respondent was going out with Ms R in 2008 and 2009. She said that she saw them together at functions at the respondent’s homes and observed them to be close physically. In relation to the applicant alleging that the respondent was secretive and kept their relationship secret she never found him to be secretive about his relationships so far as she was concerned. He took the applicant to public functions as well as to dinner with friends including her.
Mr SS
Mr SS is a friend of the respondent. His evidence was as follows.
He has known the respondent since 2007. He lives near the respondent and has visited his homes frequently. On or about 18 February 2008 he attended at the respondent’s home for a couple of hours from approximately 7 pm and did not see anything to suggest that the applicant or anyone else was living with him.
Mr SS has seen the respondent at least forty to fifty times between mid 2007 and February 2010. He first met the applicant in approximately September to November 2008 and did not see her again until mid December 2009. He has visited the respondent’s homes on numerous occasions and noticed dishes scattered everywhere and little food in the fridge. He did not see anything that would suggest the respondent was living with anyone during that time. There were numerous occasions in 2008 and 2009 when the respondent discussed his relationships with him and said that he really liked Ms R.
Mr HR
Mr HR’s evidence was as follows.
He works with the respondent. He first met the applicant at the office Christmas party in December 2007.
During spring in 2008 he spent approximately thirty days and/or nights working at the respondent’s home. During that time he only saw the applicant on a few occasions. He did not see any female clothes or toiletries in the house and the fridge was generally empty or contained out of date food and the house was quite messy.
Since the respondent moved into Property 2, J Street, Suburb M in approximately October 2008 he did not recall seeing the applicant there.
Ms MH
Ms MH is the respondent’s mother. Her evidence was as follows.
She usually speaks with the respondent weekly. In early 2008 the respondent had informed her that he was seeing Ms R. At no time in 2008, 2009 or 2010 did the respondent inform her that he was living with anyone.
The first time that the respondent mentioned the applicant to her was in approximately July 2008. Ms MH lives in Perth. She first met the applicant in late 2008 when the applicant called on her during an airline trip through Perth. The applicant informed her that she lived in Suburb N.
Ms MH stayed with her son in his home in December 2008. She did not see any female clothing, personal effects, toiletries or other items. Nor did she see any photos of the applicant in the home.
By late 2008 or early 2009 the respondent informed her that he and the applicant had broken up.
Ms V
Ms V is a friend of the respondent. Her evidence was as follows.
She first met the applicant in approximately late 2008. The next time she saw her was at a venue around Christmas 2008. Ms V was attending her husband’s Christmas party. The applicant came in with three men whom she introduced as friends from Melbourne.
Ms V and her husband attended parties at the respondent’s Suburb M and Suburb P homes during 2008 and 2009. On only two occasions was the applicant there.
Whenever Ms V visited the respondent’s homes they were messy with clothes, personal items as well as dishes and wine glasses around the home. Shortly after the completion of the new Suburb M home she had occasion to inspect the walk in wardrobe and the bathrooms. The only clothes there were those of the respondent and she saw no female clothes or toiletries.
Mr PD
Mr PD is a friend of the respondent. His evidence was as follows.
He lives away from Sydney but travels to Sydney on a weekly basis. In 2008 and 2009 he stayed overnight at the respondent’s home usually one to two nights every two or three weeks. The home was always messy with empty wine glasses and little food in the fridge. He never saw the applicant or her motor vehicle at the respondent’s home, nor any female clothing, items or toiletries that would indicate that the applicant was living at the home.
Mr PD met the applicant on three occasions, the first two being at restaurants where she accompanied the respondent. The third occasion was at breakfast at Suburb N near where the applicant resided. After breakfast the applicant, the respondent and he went to the applicant’s apartment at Suburb N and she showed him around her apartment. He saw her clothing, personal items and toiletries in her bedroom and within the apartment.
Mr CP
Mr CP is the architect who designed the respondent’s new home at Property 2, J Street, Suburb M. His evidence was as follows.
The building work on the home commenced in March 2007 and was completed in October 2008. During the building period he visited the respondent at his residence next door (Property 1, J Street, Suburb M) once or twice a week. He never met or sighted the applicant. He first met the applicant on 7 November 2008 at a function at the new home to show it to his firm’s staff. Neither he nor his staff had met the applicant prior to that time.
Ms HB
Ms HB is the interior designer who designed the interiors of the respondent’s Suburb M and Suburb P homes. Her evidence was as follows.
Between October 2007 and December 2009 she attended at the respondent’s Suburb M homes three to four times each week including early morning visits and through the day as required. She first met the applicant in mid June 2008 and at no time prior to June 2008 did she meet or see the applicant.
Between mid June and December 2008 she attended the Suburb M properties more than a hundred times and saw the applicant on four to five occasions.
Mr DM
Mr DM is the respondent’s gardener. His evidence was as follows.
He worked at the respondent’s Property 1, J Street, Suburb M property from June 2007 and at his Property 2, J Street, Suburb M property from approximately October 2008. He usually commenced work early in the morning sometimes at approximately 7 am. He has never met the applicant nor seen her motor vehicle.
Mr TT
Mr TT’s evidence was as follows.
He is the owner/manager of a café in Suburb M. The respondent was a regular customer at the café during most of 2008 and used to attend two to three times a week. During the period June to December 2008 Mr TT saw the applicant accompany the respondent on approximately three to four occasions when she accompanied him for breakfast.
Discussion
Because I have found that any de facto relationship between the parties could not have existed beyond 28 February 2010, for the applicant to satisfy the two years requirement of s 90SB(a) of the Act it would be necessary for her to establish that the parties commenced a relationship “as a couple living together on a genuine domestic basis”
·not later than 28 February 2008 and maintained such relationship without interruption until 28 February 2010; or
·at some earlier time but in circumstances where the period, or the total of the periods of such relationship aggregated at least two years.
Just looking at the early period of the parties’ relationship from 16 February 2008 until say May 2008, what were the features of the relationship in the context of those matters referred to in s 4AA of the Act?
Firstly, whether a sexual relationship existed. The applicant said that after the music festival on 16 February 2008 she went to the respondent’s home, then at Property 1, J Street, Suburb M and their sexual relationship commenced that evening.
The respondent denied that the applicant attended at his home that evening and said that he went home alone. He said that they did not commence a sexual relationship until early May 2008.
I must say that I prefer the respondent’s evidence about commencement of their sexual relationship to that of the applicant. Firstly, I have a poor view of the applicant’s credit generally. But there are several matters which in my view make it more probable than not that the respondent’s assertions about this matter are correct. These include the following.
As indicated above, the respondent hosted a party at his home the following day namely 17 February 2008 to which the applicant was not invited. I accept that she was not at the party. So if the applicant had attended at the respondent’s home the previous evening one would expect her to have returned to her Suburb N apartment either late on the evening of 16 February 2008 or some time during 17 February 2008. The RTA toll records in respect of the applicant’s vehicle do not include any Sydney Harbour crossing for either day. In my view, it is more probable than not that the applicant did not attend at the respondent’s home that evening.
The respondent and Ms R both assert that they were in a relationship between late 2007 and May 2008. As indicated above, various of the respondent’s witnesses have given evidence corroborating such relationship at least to some extent. As also indicated above, both the respondent and Ms R have given an account of considerable time spent with one another over the period.
In relation to the applicant’s assertions that they shared a common residence, namely the respondent’s home at Property 1, J Street, Suburb M over the period, in my view, the weight of the evidence is strongly against this assertion.
I am satisfied that the applicant was not at the respondent’s home on 16 or 17 February 2008. Nor on 19 and 21 February 2008 when Mr D visited the home, nor on 18 February 2008 when Mr SS visited the home.
The respondent and Ms R went to Melbourne on 23 and 24 February 2008 and then Ms R stayed at the respondent’s home on 25 February 2008.
Between 27 February and 16 March 2008 the respondent was overseas skiing with Mr D and there was no suggestion that the applicant was living at his home in his absence.
On their return, Mr D was also living at the home five out of seven nights each week for the remaining part of this period. He said he did not see the applicant there. I accept this.
Between 10 March and approximately … April 2008 the applicant was training with an airline. She asserted that during this period she was staying at the respondent’s home, spending a lot of her time there, eating dinner and breakfast there and driving her motor vehicle to the airport for the training. The respondent denied this and Mr D’s evidence was that he saw neither the applicant, nor any of her clothes or any female items at the home. Ms R said that she was spending time at the respondent’s home up to May 2008 and that she never saw any items that might indicate a female person was living in the home. MrRR also stayed at the home on occasions during the relevant period and he said he never saw the applicant nor any female items at the home.
The RTA Toll records for the applicant’s motor vehicle show that the vehicle only made one Sydney Harbour crossing during this period. That was on 24 March 2008 in the evening.
I reject the applicant’s assertions that she was staying at the respondent’s home during this period and accept the evidence of the respondent and the other witnesses who provided evidence about this period.
That takes matters to … April 2008. On that day the respondent had a birthday lunch at his home which was not attended by the applicant. In fact the applicant undertook her first working shift that day and it was to Japan.
In addition, the perception of the applicant’s sister Ms A was that the applicant “moved in with” the respondent in approximately June 2008.
Pausing here, and giving consideration to the circumstances of the parties in the context of the matters referred to in s 4AA of the Act, to form a view about whether the parties during the period from 16 February to … April 2008 had a “relationship as a couple living together on a genuine domestic basis”, in my view the following is the case:
·The respondent was living at his home at Property 1, J Street, Suburb M and the applicant was living at her apartment at BB Street, Suburb N. At its most favourable to the applicant’s case, it is possible that there might have been a few occasions where one or other of them was visiting the other at their respective residences. But in my view, it is more probable than not that there was no, or little, common residence.
·As indicated above, in my view, it is more probable than not that the parties did not have a sexual relationship.
·At this time there was no evidence of any financial dependence or arrangements for financial support between the parties. Each of them was employed. It is clear that the applicant was paying her own rent and other expenses as was the respondent.
·No property was acquired. In my view very little use was made at this time by either party of the other’s property.
·There was no commitment to a shared life. The respondent was in a relationship with Ms R and staying with her and going out with her over the period. The applicant took Mr WM home to her Suburb N apartment on 23 March 2008 and he stayed there overnight. The applicant informed Mr WM that she was single and did not have a boyfriend.
·There was no evidence from any objective source of any acknowledgment, let alone any public acknowledgement, that the parties were in a relationship. There was no evidence that the applicant had changed her address on her driver’s licence, bank accounts, airline records or any other indication that her address was at the respondent’s home.
In my view, although the parties had some relationship and this included some limited social interchange, even regular communication by SMS and telephone over the period between 16 February and … April 2008, their relationship fell a long way short of what would be required for the Court to be able to find within the meaning of the Act that during this period the parties had a relationship “as a couple living together on a genuine domestic basis”.
In my view, this finding is determinative of the issue concerning jurisdiction, at least so far as the applicant relies on her assertion that the parties had a relevant de facto relationship for at least two years. In my view they did not, and therefore it is not available to the applicant to rely on such an assertion as providing the basis for the Court’s jurisdiction to make the substantive orders sought by her.
It is true that after May 2008 there were features of the parties’ relationship which would tend to swing the pendulum more towards the sort of relationship which the applicant has asserted was a de facto relationship.
These include the fact that by then the parties had a sexual relationship. The respondent was not having a relationship with Ms R at least for a month or so. He conceded that from July 2008 the applicant was spending approximately two nights a week at his homes. And they attended a number of social functions together.
But the weight of the evidence satisfies me that the applicant never moved into the respondent’s residence and established her primary residence there as asserted by her. I accept the respondent’s evidence that between approximately July and December 2008 the applicant spent approximately two nights a week staying with him at his homes at Suburb M or Suburb P. I also accept his evidence that on such occasions the applicant brought an overnight bag and usually left the following morning. This is consistent with the evidence of various of his witnesses who said they never saw female clothing or items at the homes. In my view, her residence remained at Suburb N. It remained her residence for all official purposes, she kept her possessions there and I do not accept that it became in any way a shared residence with the respondent although I accept that he had stayed the night there occasionally.
There was no evidence of any shared financial relationship between the parties during this period. It is the case that the respondent paid almost the entirety of the costs of the parties when they went out on social engagements such as to restaurants or other entertainment. And I accept that occasionally the applicant purchased some food and perhaps alcohol to consume with the respondent.
There was no mutual property of the parties.
I accept that from time to time there was some level of commitment to a shared life. But there was also behaviour inconsistent with this. The respondent continued to go out on occasions with Ms R. The applicant was not invited to the restaurant in August 2008 and when she arrived she spent little time with the applicant and did not stay with him that evening apparently preferring the company of her friends including a male pilot. In December 2008 the applicant attended a venue with three men and the respondent was not there.
In relation to the reputations and public aspects of the relationship, it was certainly the perception of the applicant’s mother and sisters, that the applicant and the respondent were a couple. But, as indicated above, in my view there were difficulties with their evidence. Amongst other problems it was general, lacked detail, some was untruthful and none of the witnesses had much opportunity to observe the parties’ situation but rather relied on what the applicant told them.
I accept that by the later part of 2008 it was probably the case that the respondent’s friends understood that the parties were a couple. After all, the respondent conceded that the applicant was spending approximately two nights a week at his home.
In any event this period came to closure on 26 December 2008. I accept the respondent’s evidence that, at that time, the parties had formed the view that their relationship was not going anywhere and that they should end it.
In considering these matters and the other evidence about this later period, although there are matters which bring their circumstances closer to what is required under the Act than was the case during the earlier period, in my view their circumstances were not such that this Court would find their relationship to have been that of “a couple living together on a genuine domestic basis.”
Period from January 2009 to February 2010
As indicated above, in my view, the Court is unable to find that the parties had a de facto relationship within the requirements of the legislation for a period of at least two years. It is not necessary, therefore, to consider the nature of any further period of their relationship for the purpose of determining whether jurisdiction exists based on s 90SB(a) of the Act.
However, a considerable amount of evidence was filed in respect of this later period of the relationship and there was also significant focus during the hearing on the material relating to this period.
It also gives some context to the other stream of the applicant’s case namely, that she has made substantial relevant contributions and that failure to make the orders sought by her would result in serious injustice to her.
Accordingly, I propose to make reference to some of the evidence during this period, although not in anything like the same detail referred to in the earlier period.
The applicant
The applicant’s affidavits did not include much material about the parties’ circumstances during 2009/2010. Her evidence was as follows.
There was no separation of the parties at the end of 2008, the parties were just experiencing a “rocky patch” in their relationship.
In February 2009 the respondent went on a skiing holiday in Canada. The applicant’s work commitments did not enable her sufficient time to accompany him. But he went anyway which made her upset. So she went to the NSW north coast for a few days with a friend Mr DL.
In April 2009 she nominated the respondent as her airline travel companion which would entitle him to discounted air fares.
In April 2009 she commenced the organisation of a 50th birthday party for the respondent. They argued about the party (and she ceased the preparation) but they were in touch on his birthday.
They were in constant communication throughout 2009 including periods when they did not see each other daily. They telephoned and sent SMS messages to each other very regularly.
In October or November 2009 the respondent informed her that he wanted to have a baby with her. As a result of their wish to have a baby together the respondent attended a doctor in relation to his fertility and she stopped taking the contraceptive pill.
Late in 2009 the respondent informed her that he wanted to marry her but said that they would need a pre-nuptial agreement and that he had spoken to his lawyer about preparing an agreement.
She wanted to give up the apartment at BB Street, Suburb N when the lease expired in December 2009. But the respondent said he thought they should keep a place in the Eastern Suburbs. He sourced an apartment at Y Street, Suburb N and paid the rent from December 2009 to May 2010. He gave her his credit card details so she could pay the removalist and various other expenses.
In December 2009 she and the respondent attended her mother’s 60th birthday party and he met her mother and her sister at that time.
In December 2009 the parties attended the respondent’s Christmas Party as a couple.
In December 2009 and early January 2010 the parties stayed at the respondent’s home at Suburb P.
In early January 2010 the applicant’s mother and sister visited the parties at the respondent’s Suburb P home.
On 6 January 2010 she flew out of Australia for the USA where she had a holiday with the respondent and she left that city on 15 January 2010.
Ms S
The applicant’s mother’s evidence about this period was as follows.
Ms S said that her understanding was that the parties’ relationship ended in May 2010 when the lease on the Y Street, Suburb N home unit expired and the applicant vacated the unit. I must say that I thought Ms S’s oral evidence about this matter sounded contrived.
Ms S said that she met the respondent on three occasions. The first was her 60th birthday party cruise on Sydney Harbour in December 2009. It is also clear that she met the respondent during lunch at a Suburb P restaurant in January 2010 and that she, the applicant and the respondent visited the respondent’s Suburb P home for thirty to forty minutes afterwards. Ms S said that the applicant appeared to be very much at home in the Suburb P house and familiar about where everything was located in the house. Ms S also said that she had met the respondent on another occasion at the Y Street, Suburb N home unit.
Ms S said that when they visited the respondent’s Suburb P home in January 2010 the applicant was doing washing using the washing machine with which she said the applicant appeared to be familiar.
Ms S said that during her 60th birthday party in late December 2009, she and the respondent spoke about his wish to have a child with the applicant.
Ms S said that she last met the respondent in the applicant’s company in February 2010 at the Suburb N unit and that he informed her that he wanted the applicant to cease working with the airline.
Ms A
The applicant’s sister’s evidence about this period was as follows.
In approximately July 2009 the applicant was visiting her in Wollongong and said that she had left her airline uniform at Suburb M. Ms A heard the applicant speaking by telephone to a person she said was the cleaner and asking her to lay the uniform out for her so that she could get dressed for work when she came “home”.
In approximately October 2009 the applicant arrived in Wollongong and showed her a huge number of new clothes which she said the respondent had purchased for her as a birthday gift saying that he had spent approximately $5000 on the clothes.
Ms A met the respondent on one occasion only, this being her mother’s 60th birthday party on a Sydney Harbour cruise boat in December 2009. She observed the parties to be extremely affectionate on this occasion
Ms W
The applicant’s sister’s evidence about this period was as follows.
On 3 January 2010 she and her mother had lunch with the respondent and the applicant at a restaurant at Suburb P. After lunch they visited the respondent’s Suburb P home. The applicant showed her around the home which she considered to be ultra-modern and very stylish with no personal items visible until one opened cupboards or drawers. Then personal items were visible. Ms W saw female clothing in the wardrobes and drawers.
Also in early 2010 she and her mother visited the parties at the apartment at Y Street, Suburb N.
Ms W affirmed during her cross-examination that it was her understanding that the parties’ relationship never ended until February 2010. Yet subsequently she conceded that the applicant had informed her at some time prior to November 2009 that her relationship with the respondent had come to an end. She agreed that on 26 November 2009 the applicant informed her that she was going to “have another go at (the relationship)”. Having made this concession, Ms W was unable to inform the Court when it was that the applicant had informed her that her relationship with the respondent had come to an end.
Ms W indicated that by 13 February 2010 the applicant had informed her that her relationship with the respondent was not going to work.
The respondent
The respondent’s evidence was as follows.
The parties agreed to attend a function together for New Years Eve (31 December 2008). He stayed overnight at the applicant’s home at Suburb N.
The parties spent New Years Day 2009 together, including attending a party. The respondent left the party early with Mr HH and without the applicant. She had an argument with a former girlfriend of the respondent and the evening became unpleasant.
In early January they went on a boat trip on Pittwater.
On 31 January they went out to dinner.
In February and March the applicant did not attend his home.
In mid-February 2009 the respondent went skiing in Canada for approximately 17 days. He did not invite the applicant. On approximately 26 February 2009 he spoke to the applicant by telephone from Canada. She was staying in the NSW north coast with a Mr DL.
Shortly after the respondent’s return to Australia on 9 March 2009 the parties met at a venue. She was talking to two men when the respondent arrived. They had a serious argument about the applicant holidaying at the NSW north coast with Mr DL.
On or about 6 or 7 April 2009 the respondent invited friends who had been with him on Mr HH’s boat that day to his home for a drink. The applicant had not been invited on the boat trip but called in to the respondent’s home when the group were there. She wanted a female guest to leave and the parties had an argument. The applicant threw a glass of red wine over the respondent and insulted him to his guests. He asked her to go home to Suburb N.
On or about 12 April 2009 the respondent took the applicant to a party at the Suburb P home of Ms V and her husband. There was an argument between the parties and the respondent asked the applicant to leave, which she did. She stayed in the spare bedroom at the respondent’s Suburb P home that evening. The next day they agreed to end the relationship for good and she left for Suburb N.
Within a short time the applicant commenced organising a 50th birthday party for the respondent. But upon the respondent hearing about her preparations he contacted her and said that he did not want to be with her anymore and asked her to cancel the party which she did. He then organised his own birthday party and did not invite the applicant.
That evening the respondent re-established his relationship with Ms R. They continued to see each other until 28 November 2009. During that period they spent most weekends together, he took her to all his social functions and on occasions she stayed at his home during the week.
In late August 2009 the applicant rang him and asked to meet which they did. The applicant informed him that she wanted to have his baby. He said he would think about it.
He was also discussing with Ms R the possibility of them having children.
In approximately October/November 2009 the respondent had heard that the applicant was in a relationship with a Dr Z. He contacted her and informed her that he agreed to her proposal to have a baby together. She informed him that it was too late and that she was in a relationship with someone else.
On 5 November 2009 the respondent hosted a party to celebrate the Melbourne Cup. He did not invite the applicant.
On 12 November 2009 the respondent attended a party accompanied by a female friend. The applicant did not attend.
On 15 November 2009 the applicant posted on Facebook the information that she was in a relationship.
On 21 November 2009 the respondent invited the applicant to a social function. She told him she was in another relationship. He spent that night with Ms R.
On 29 November 2009 the parties spent a night in Queensland. The applicant informed him that she had to move out of her apartment soon and had nowhere to go. She intimated that she might move in with Dr Z and suggested that she could move in with the respondent at Suburb M. He said he informed her that before she could move in they needed to be sure that their relationship would work out.
On 2 December 2009 the applicant informed him that she had to move out of her apartment by 4 December. She said that she did not know where to go and was not sure about the state of their relationship. He agreed to rent an apartment at Y Street, Suburb N to see if their relationship could succeed. He signed a six month lease and the applicant moved into the Y Street, Suburb N apartment on 5 December 2009. He also gave her his credit card details to pay the costs of her removal. He helped her to move her clothes into the new apartment. He has been there three times including that occasion and has not slept overnight there.
The respondent saw the applicant on five occasions in December 2009 prior to Christmas Day 2009.
One such occasion was when they attended the 60th birthday party for the applicant’s mother on a cruise boat on Sydney Harbour.
Between Christmas Day 2009 and 6 January 2010 the parties stayed at the respondent’s Suburb P home. But things did not go well and they had many arguments. They planned a holiday in the USA for early January 2010 and the respondent booked the accommodation. But he was having second thoughts about going and the applicant went there alone on 6 January 2010.
The respondent subsequently changed his mind and arrived in the USA city on 9 January 2010. The applicant informed him that she had not been expecting him to come. She informed him that she had spent most of her time there between 6 and 9 January in the company of a male American financier. This made the respondent upset. The USA holiday did not go well and they argued almost every day.
The applicant left the USA city on 15 January 2010. The respondent left there on 17 January 2010 and went skiing in Canada. He returned to Australia on 31 January 2010.
On 31 January 2010 the applicant stayed the night at his home.
Between 1 and 21 February 2010 the applicant stayed at the respondent’s home on approximately four nights. She informed him that she had seen a family lawyer. The applicant had also been asking him questions about his net worth. She also asked him to give her a credit card and he declined this request. She also insisted on attending a meeting with his architect to discuss the re-design of work which had been completed at the respondent’s Suburb P home.
The respondent was becoming suspicious of these behaviours.
The applicant invited the respondent to a concert on 26 February 2010. He said that there was no point because their relationship was over. She informed him that she needed closure of their relationship. He reluctantly agreed to go and met her at the concert. She asked people to take photos of them. The respondent went home alone.
On 28 February 2010, when the respondent returned home after seeing a movie with Ms R, he found the applicant present in his home. He informed her that their relationship was over and asked her to leave immediately.
Discussion
Much of the above account of the respondent was confirmed by his witnesses. I do not propose to refer to details of their evidence about this period with the exception of that of Ms R.
In my view, it is much more probable than not that the respondent’s account of the circumstances of the parties over the above period is correct.
In particular, in my view, it is much more probable than not that there was a significant change in the parties’ relationship just before the respondent’s 50th birthday in April 2009 and that the close and direct physical relationship they had prior to this time ceased until approximately late November 2009. Ms R confirmed the respondent’s evidence that she and he resumed their close relationship when she spent the night of his 50th birthday, namely … April 2009, at his Suburb M home. She said that her relationship with her Swedish boyfriend Mr EA had come to an end in March 2009 and he had returned to Sweden. She said that between … April 2009 and her birthday on … October 2009, she and the respondent saw each other on a weekly basis other than when she was overseas for a short time. She had the codes to enter his home and went there whenever she liked. I accept her evidence.
The applicant did not provide evidence of any particular occasion when she and the respondent were in physical contact over the period between April and November 2009. I accept that they continued to communicate by telephone and SMS over the period.
The Toll records for the applicant’s motor vehicle showed only two Sydney Harbour crossings between 12 April and 1 November 2009 and the applicant said that she accepted this.
In my view, the applicant’s own evidence is quite illuminating. For example, on 18 May 2009 she sent the respondent an SMS message which included the following:
… perhaps you’re with an ex or some other girl by now. Any chance you got the bike back to [Suburb M] yet.
On 16 October 2009 she sent him an SMS message which included the following:
I am thinking it is really better you stay single without me around. Enjoy dating and building the next house.
The applicant’s explanation, about these and many other matters which suggested that the parties were not in a serious relationship between April and November 2009, was that she never denied that there were rough patches in their relationship.
What became very clear during the course of the applicant’s cross-examination was that she engaged in a serious relationship with Dr Z which continued over October and most of November 2009. This included a sexual relationship, the applicant making a change of status entry on Facebook, going on holiday to Queensland at one point and having discussions about moving in to live with him. The applicant also changed her nominated airline travel companion from the respondent to Dr Z as from 21 October 2009.
The applicant conceded that her relationship with the respondent had broken down in 2009. She also conceded that she had informed her sister Ms W some time in 2009 that she had broken up with the respondent. In my view, an SMS message from her sister to the applicant confirmed this.
Even before the April to November 2009 period, which in my view could in no way be regarded as a period during which the parties were in a de facto relationship, there were real difficulties between them. The applicant conceded that in January 2009 she went skiing in Switzerland with a male friend called Mr EE, stayed at his home and had sex with him. She also conceded that in February 2009 she went to the NSW north coast with a male friend Mr DL and had sex with him.
Conclusion
In my view, it is unnecessary to visit any further evidence in relation to this period. Furthermore, I do not regard it to be necessary to undertake an analysis of the evidence of the parties’ circumstances during the period in relation to the detailed matters set out in s 4AA of the Act.
In my view, the evidence points to it being more probable than not that the close relationship including a sexual relationship that the parties had between January and April 2009 came to interruption and the respondent re-established his relationship with Ms R. The applicant then pursued other relationships including her serious relationship with Dr Z in October and November 2009.
I consider it to be very clear that whatever relationship the parties had during more than half of 2009, could not possibly amount to a de facto relationship within the meaning of the Act.
Substantial Contributions
The applicant submitted that the Court would have jurisdiction to make maintenance and property orders in her favour on the basis that she had made substantial contributions within the meaning of s 90SB(c) of the Act and that a failure by the Court to make such orders in her favour would result in serious injustice to her.
As indicated above, when the legislation refers to substantial contributions it requires that these be of a kind set out in ss 90SM(4)(a), (b) or (c). I have set out these provisions above.
Sub-section 90SM(4)(a)
The first of these categories refers to financial contributions to property. The applicant has conceded that she has made no such contributions.
Sub-section 90SM(4)(b)
The second category in s 90SM(4) of the Act is set out at s 90SM(4)(b). This refers to contributions other than a financial contribution made directly or indirectly by or on behalf of a party to the de facto relationship to the acquisition, conservation or improvement of any of the property of the parties or either of them or otherwise in relation to any such property.
The applicant asserts that she has made substantial contributions to the design and development of the respondent’s homes at Property 2, J Street, Suburb M and Suburb P.
The applicant also made general assertions to the effect that she had assisted the respondent in relation to some of the design concepts and aspects of the building project in relation to the homes. She said that when she commenced her relationship with the respondent, there had been minimal construction on the site of his property at Property 2, J Street, Suburb M.
It is clear from the evidence of the husband, his architect and Ms HB that the Suburb M project was many years in the making. Years of planning had gone into it, a contract had been entered into for building the home well before the commencement of any relationship between the parties and by May 2008 the home was at quite an advanced stage of construction, the construction having been completed by October 2008.
The applicant also said that she encouraged the respondent to finish his “dream home”. In my view, this must be regarded as a somewhat pretentious assertion in circumstances where, as indicated above, before the parties commenced any relationship, the respondent had signed a building contract for construction of the home.
The applicant said that she liaised with Ms HB the interior designer of the respondent’s homes at Suburb M and Suburb P. She said that she acted as “middleman” between Ms HB and the respondent, engaging relevant contractors, liaising with them from time to time on behalf of the respondent and communicating his instructions to them.
The respondent denied this. He said that the applicant had no input whatsoever into the design of his Suburb M home. He said that the interior of the home was designed by Ms HB assisted by a former girlfriend of his, Ms BC. He said that he had meetings at his home with Ms HB four to five times a week.
As indicated above, Ms HB said that the first time she met the applicant was in mid June 2008. The applicant thought they might have met sooner. But she did not cross-examine Ms HB, and I accept Ms HB’s evidence.
As also indicated above, Ms HB said that from mid June to December 2008 she attended at the Suburb M homes more than one hundred times but only saw the applicant there four to five times.
In response to the applicant’s assertions that she contributed to the design of the Suburb P home Ms HB also denied this. She said that the applicant attended a couple of the on site project meetings just before Christmas 2008 as the respondent’s friend. She said that the applicant did not provide any advice or speak at those meetings about any interior design decisions because all such decisions had been made and implemented.
The applicant said that this was not correct.
I must say I prefer the evidence of Ms HB to that of the applicant about these matters.
In my view, the applicant’s assertions that she has made substantial contributions in respect of these matters is without any basis at all.
Sub-section 90SM(4)(c)
The remaining category of contributions referred to in s 90SM(4) of the Act are those set out in s 90SM(4)(c). These are contributions by a party to the de facto relationship to the welfare of the family constituted by the parties to the de facto relationship, including any contribution made in the capacity of homemaker. The thrust of the applicant’s submissions that she has made substantial contributions within the meaning of the Act mainly relates to this category of contributions.
The applicant said that she encouraged the respondent to co-operate with a media outlet in relation to an article which she said enhanced his business reputation and hence the public confidence in his company. Yet the respondent said that he declined to give an interview to this media outlet.
The applicant also said that she assisted Ms HB in organising the respondent’s relocation from Property 1, J Street into his new home at Property 2, J Street, Suburb M. Ms HB denied this saying that the applicant was not involved in any way with the move, the packing or the unpacking of the boxes. Ms HB also said that she organised relocation of all items which were required to be moved into the Suburb P home and that the applicant did not assist in organising the move.
The applicant asserted in her affidavit that she gave up her studies after meeting the respondent the inference being that this enabled her to spend more time with him. But in fact the applicant did not give up any studies at all.
The applicant also asserted that throughout the parties’ relationship she attended to domestic duties. She said that from early in the relationship she would clean up or do housework while the respondent worked. She said she also ran errands and either she would shop for dinner or they would shop for dinner together. She said that either she would cook or that she and the respondent would cook dinner together. She said that after dinner she would do the cleaning up while the respondent would attend to work matters.
She said that she shopped for both of the parties and helped manage the household. She said that she dealt with almost every non-work related aspect of the respondent’s life, including cleaning the house before he hired a cleaner. She said that she also dealt with miscellaneous other domestic matters.
The respondent said that at all times during the period the applicant alleged they were in a de facto relationship, he employed professional cleaners to clean his homes.
The respondent said that the applicant never did any cooking or housework in his homes. He said all she did was make herself breakfast.
Ms SK has been the respondent’s professional house cleaner since February 2009. She said that since she started working with the respondent she has never had to clean the oven or the cooktop. She said that they appeared never to have been used. She said that in April 2009, just before the respondent’s birthday party, she removed the protective plastic film on the oven which covered the glass panel.
A building report of a property inspection on 4 August 2010 on the respondent’s home noted that the oven and cook top appeared not to have been used with appliance items still in original packets inside the oven. Photos were attached.
I accept this evidence. It certainly does not sit well with the applicant’s assertions that she prepared dinners with or without the respondent approximately three times per week.
The respondent said that in approximately January 2010, he arranged for his step-mother to come to dinner. He said that the applicant said that she would like to cook. He said that he was surprised because she had never cooked, or offered to cook before. He said that she was supposed to arrive to start cooking at approximately 6:30 pm. But in fact she did not arrive until approximately 9:30 pm. By that time he had cooked the meal on the barbeque. He said that after dinner his step-mother and the applicant both went to bed and he did all the cleaning up.
Ms H said that she attended a Christmas party held by the respondent on a boat in December 2008. She observed the respondent do the cooking, food preparation, washing up and cleaning assisted by other guests. The applicant was present. But Ms H did not see the applicant assist with any of these tasks.
The applicant set out in considerable detail in her affidavits the contributions she says she made to the welfare of the respondent including her efforts to encourage him to become fit and to change his diet.
It is unnecessary to set out all the details. Suffice it to say that because of the findings I have made about the circumstances of the parties’ relationship above, in my view the applicant’s assertions about her welfare and other contributions have been grossly exaggerated. But even if they were not exaggerated, in my view they are what would be regarded as being the usual or ordinary type of contributions which one sees in the context of the meaning of welfare contributions in the Family Law Act 1975. It is clear, in my view, that such contributions do not fall within the meaning of “substantial contributions” as referred to in s 90SB(c) of the Act limited as they must be by s 90SB(a) to have been made for a period of less than 2 years.
I note that in the course of his judgment in Miller and Trent [2011] FMCAfam 324 Coates FM considered the meaning of “substantial contributions” as referred to in s 90SB(c) of the Act. His Honour was satisfied that the context in which this expression was used in both the FamilyLaw Act 1975 (Cth) and the similar provisions in the Family Law Act 1997 (WA) was really the same. Accordingly, his Honour considered the following passage from the decision of Holden CJ of the Family Court of Western Australia in the case of V and K [2005] FCWA 80 to be applicable. At paragraph 21 Holden CJ said as follows:
Notwithstanding I am of the view that a contribution to domestic duties in circumstances such as exist in this case where there were no dependant children and over a short period of time ought not be seen to be substantial. In my view, substantial means something more than usual or ordinary. In my view, [the section] is aimed at more exceptional circumstances where serious injustice may be caused by the application [of the relevant provision].
With respect to both Coates FM and Holden CJ, I agree. If usual or ordinary contributions were sufficient to amount to “substantial contributions” within the meaning of s 90SB(c), there would be little purpose in the two years requirement in s 90SB(a) of the Act. This is because in most de facto relationships to some extent usual or ordinary contributions would be a feature of such relationships.
In any event, the other limb of s 90SB(c) requires that where there have been substantial contributions, a failure to make the order or declaration would result in “serious injustice” to the applicant.
The applicant’s case in this regard, really seems to be that she walked away from a future career in child care to assist the respondent with his life and his business. During the period of their relationship he made a lot of money and she gave him support. The applicant submits therefore that it would be unfair for her simply to walk away without enjoyment of any of the fruits of the parties’ relationship and that accordingly, a serious injustice to her would result.
There are a number of difficulties with this submission in my view. It is unclear at this point whether the respondent made money during the period of the parties’ relationship although it is not essential to have this information. It is difficult to understand the suggestion that the applicant walked away from a career when in fact before the parties’ relationship really started to develop, it was clear that she had embarked on a career with an airline. The only financial contribution of any significance that the applicant can point to during the relationship as having been made by her was the purchase of a pushbike for the respondent. In any event this was a Christmas gift.
On the other hand the respondent has made financial contributions towards the welfare of the applicant in some significant amounts. The applicant concedes that he has paid all the costs of their food, alcohol, restaurants and other entertainment including accommodation at resorts, including overseas resorts. The respondent also paid the entirety of the costs of leasing the Y Street, Suburb N apartment for the applicant’s use, including rent in an amount exceeding $19 000 over six months. He provided the respondent with more than $6000 including money to purchase shares, the costs of the removalists and various other expenditures of the applicant.
Given what I have found to be the nature of the parties’ relationship, its relatively short duration and what can only be very modest contributions by the applicant over quite short periods, in my view, it cannot be suggested in all the circumstances, that if the Court does not make a maintenance or property order in favour of the applicant then she would be dealt a serious injustice.
In my view, the applicant has been unable to establish this part of her claim.
Conclusion About Jurisdiction
In all these circumstances, in my view, the applicant has failed to establish that she and the respondent had a relationship as a couple living together on a genuine domestic basis for a period, or periods totalling, at least two years. Furthermore, the applicant has also failed to establish, in my view, that she made substantial contributions within the meaning of the relevant provisions of the Act and that a failure to make an order in her favour would result in serious injustice to her.
In these circumstances, in my view, this Court has no jurisdiction to make a financial order in the applicant’s favour. Her application will be dismissed.
I certify that the preceding three hundred and eleven (311) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 21 February 2012.
Associate:
Date: 21 February 2012
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