Wallace and Rankin - [2015] FCCA 107

FEDERAL CIRCUIT COURT OF AUSTRALIA

WALLACE & RANKIN

[2015] FCCA 107

Catchwords:
FAMILY LAW – De facto relationship contested by the respondent – parties lived together for 13 years and have 2 children – respondent being the father of the two children says the relationship was an “association of convenience” and that he just lived with the mother so he could help raise the children –declaration that de facto relationship existed – property division – parties each work as [omitted] during the relationship – initial contribution by the respondent – offsetting contributions by the applicant – adjustment for section 90SF(3) factors – applicant to receive 52% – respondent 48%.

Legislation:
Family Law Act 1975, ss.79, 90SM, 76, 90SF, 4AA

C & C [2005] FamCA 429;
Stanford and Stanford [2012] FamCAFC 1;
Pierce & Pierce (1999) FLC 192-844;
Daniher & Garlett [2014] FCCA 2961;
Elias and Elias (1977) FLC 90-267;
Crandall & Crandell [2009] FamCAFC 120;
Kersten & Taylor [2014] FCCA 65;
Jonah & White [2011] FamCA 221;
Allenby & Kimble [2012] FamCA 614;
In the marriage of CH & WA Willmore (1988) 12 FamLR 692;
Norton & Locke [2013] FamCAFC 202;
Baker & Landon [2010] FMCAfam 280;
Moby & Schulter [2010] FamCA 748;
Roy & Sturgeon (1986) DFC95-031;
Project Blue Sky Inc v Australian Broadcasting Authority (1998) HCA 28

Applicant:

MS WALLACE

Respondent:

MR RANKIN

File Number:

CSC 533 of 2012

Judgment of:

Judge Willis

Hearing dates:

12-14 March 2014

Date of Last Submission:

14 March 2014

Delivered at:

Cairns

Delivered on:

22 January 2015

REPRESENTATION

Counsel for the Applicant:

Mr Ryall

Solicitors for the Applicant:

Bottoms English Lawyers

Solicitors for the Respondent:

Self-represented

ORDERS

IT IS DECLARED THAT PURSUANT TO SECTION 90RD of the Family Law Act 1975 (“the Act”) that a de facto relationship as defined by Section 4AA of the Act existed between the Applicant and the Respondent at Perth and Cairns that commenced in July 1997 and broke down on 15 November 2010 in Cairns.

IT IS ORDERED THAT:

Noting the findings of the Court that the property is to be divided between the applicant and respondent on the basis of 52% to the applicant and 48% to the respondent, the following Orders apply:

The Respondent is to pay to the Applicant the sum of $170,982.00 within 30 days of the date of this Order (“the payment.”)
Upon payment of the sum referred to in Order 1 herein, the applicant will simultaneously:
(a)In consideration of receiving the payment, do all acts and things and sign all documents necessary to transfer to the respondent, at the expense of the respondent, her interest in the property situated at Property T in the State of Queensland more particularly described at Lot [omitted], Title Reference [omitted] (“the Cairns property”);
and also in consideration of receiving the payment:
(b)Relinquish her interest in the properties at Property G [G] in the State of Western Australia more particularly described as Certificate of Title Register Book Volume [omitted] (“the [G] property”) and Property R in the State of Western Australia more particularly described as Certificate of Title Register Volume [omitted] (“the [R] property”) NOTING each of clauses (a) and (b) herein are conditional upon the respondent simultaneously refinancing all mortgages or debt of any kind whatsoever standing in their joint names or the applicant’s name and/or related to the properties referred to in this Order, into his sole name at his own expense and he shall be solely liable for payment of the debts as and when they fall due and shall indemnify the applicant against all liability arising from such mortgages or debts of whatsoever kind.
Thereafter, save as is expressly provided for in these Orders, each party shall be solely entitled to the exclusion of the other to all property (including choses in action) in the possession of such party as at the date of these Orders, including but not limited to:-
(a)Money standing to the credit of either party in any separate bank account is to remain their property;
(b)Each party foregoes any claims they may have to any superannuation benefit belonging to or earned by the other;
(c)Each party hereby foregoes any claim they may have to any long service leave, annual leave, or sick leave belonging to or earned by the other or to which the other may become entitled;
(d)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders;
(e)Each party shall be solely liable for and shall indemnify the other in relation to any personal debt howsoever arising;
(f)Neither party may hereafter pledge the credit of the other; and
(g)This Order shall be binding on the parties’ heirs, executors and assigns respectively.

Failure to comply with Order 1

Should the Respondent fail to comply with Order 1 & 2 herein the following Orders will apply:
The Applicant and Respondent shall do all acts and things and sign all necessary documents to effect the sale of the property at Property T, [T] (“the Cairns property as described in Order 2 (a) herein”) and for that purpose the following shall apply:
(a)The property shall be listed for sale by private treaty with such real estate agent as is agreed between the parties and failing agreement within 14 days from the date of these Orders the real estate agent will be as nominated by the then President of the Real Estate Institute of Queensland at the request of the parties or either of them.
(b)The list price of the property shall be such amount as is agreed between the parties and failing agreement within 14 days of the date of these Orders the list price will be as nominated by the real estate agent.
(c)The sale price of the property shall be such amount as is agreed between the parties and failing agreement any offer to buy the property that is at least 80% of the list price shall be accepted by the parties as the sale price.
(d)The parties are to co-operate in every way with the real estate agent in relation to the marketing of the property for sale including making the key readily available, allowing inspection of the property at all times reasonably requested by the agent and ensuring that the property is clean, neat and in good order at the time of inspection by any prospective buyer.
(e)Upon agreement being reached for sale of the property the parties shall execute the contract of sale and all other documents necessary to complete the sale of the property including all transfer documentation forthwith upon it’s submission to them by the agent or their solicitor.
(f)The contract of sale shall provide for completion within 30 days after the date of contract.
(g)The proceeds of sale of the property shall be paid in the following manner and priority:
(i)To discharge Mortgage No. [omitted] to Australia and New Zealand Banking Group limited;
(ii)Payment of the agent’s commission and advertising or other expenses, if any, payable on the sale;
(iii)Payment of the legal costs and outlays relating to the sale;
(iv)The balance to be paid as to 52% to the Applicant and as to 48% to the Respondent.
The Applicant and Respondent shall do all acts and things and sign all necessary documents to effect the sale of the property at Property G (“the [G] property as described in Order 2 (b) herein”) and for that purpose the following shall apply:
(a)The property shall be listed for sale by private treaty with such real estate agent as is agreed between the parties and failing agreement within 14 days from the date of these Orders the real estate agent will be as nominated by the then President of the Real Estate Institute at the request of the parties or either of them.
(b)The list price of the property shall be such amount as is agreed between the parties and failing agreement within 14 days of the date of these orders the list price will be as nominated by the real estate agent.
(c)The sale price of the property shall be such amount as is agreed between the parties and failing agreement any offer to buy the property that is at least 80% of the list price shall be accepted by the parties as the sale price.
(d)The parties are to co-operate in every way with the real estate agent in relation to the marketing of the property for sale including making the key readily available, allowing inspection of the property at all times reasonably requested by the agent and ensuring that the property is clean, neat and in good order at the time of inspection by any prospective buyer.
(e)Upon agreement being reached for sale of the property the parties shall execute the contract of sale and all other documents necessary to complete the sale of the property including all transfer documentation forthwith upon it’s submission to them by the agent or their solicitor.
(f)The contract of sale shall provide for completion within 30 days after the date of contract.
(g)The proceeds of sale of the property shall be paid in the following manner and priority:
(i)To discharge Mortgage No. [omitted] to Australia and New Zealand Banking Group Limited;
(ii)Payment of the agent’s commission and advertising or other expenses, if any, payable on the sale;
(iii)Payment of the legal costs and outlays relating to the sale;
(iv)The balance to be paid as to 52% to the Applicant and as to 48% to the Respondent.
The Applicant and Respondent shall do all acts and things and sign all necessary documents to effect the sale of the property at Property R, [R] (“the [R] property described in Order 2 (b) herein”) and for that purpose the following shall apply:
(a)The property shall be listed for sale by private treaty with such real estate agent as is agreed between the parties and failing agreement within 14 days from the date of these Orders the real estate agent will be as nominated by the then President of the Real Estate Institute at the request of the parties or either of them.
(b)The list price of the property shall be such amount as is agreed between the parties and failing agreement within 14 days of the date of these orders the list price will be as nominated by the real estate agent.
(c)The sale price of the property shall be such amount as is agreed between the parties and failing agreement any offer to buy the property that is at least 80% of the list price shall be accepted by the parties as the sale price.
(d)The parties are to co-operate in every way with the real estate agent in relation to the marketing of the property for sale including making the key readily available, allowing inspection of the property at all times reasonably requested by the agent and ensuring that the property is clean, neat and in good order at the time of inspection by any prospective buyer.
(e)Upon agreement being reached for sale of the property the parties shall execute the contract of sale and all other documents necessary to complete the sale of the property including all transfer documentation forthwith upon it’s submission to them by the agent or their solicitor.
(f)The contract of sale shall provide for completion within 30 days after the date of contract.
(g)The proceeds of sale of the property shall be paid in the following manner and priority:
(i)Payment of the agent’s commission and advertising or other expenses, if any, payable on the sale;
(ii)Payment of the legal costs and outlays relating to the sale;
(iii)The balance to be paid as to 52% to the Applicant and as to 48% to the Respondent.
Subject to these orders, the Applicant and the Respondent be declared as against each other to have the sole right, title and interest in, and to be the legal and beneficial owners of:
(a)Any motor vehicles, plant and equipment, chattels, goods, furnishings and real property and other property which are at the date hereof in their possession respectively;
(b)Any monies, shares and debentures which stand in their sole names respectively as at the date hereof;
(c)Any entitlements to superannuation which stand in their sole names respectively as at the date hereof.
If the Applicant or the Respondent refuse or neglect to execute any documents that he, she or they are required to execute pursuant to any of these Orders, that the Registrar of Cairns Registry of this Court be appointed pursuant to Section 106A to execute such deed or instrument in the name of the Applicant or the Respondent, and to do all acts and things necessary to give validity to the operation of the document. An affidavit deposing to the failure of the other party will be sufficient evidence.

Costs

Within 28 days of the date of this Order, the Applicant is to file and serve written submissions as to costs being sought and annexing a draft order and schedule of costs claimed.
The Respondent is to file and serve his Response in relation to the costs application within 14 days of being served with the Applicant’s material.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CAIRNS

CSC 533 of 2012

MS WALLACE

Applicant

And

MR RANKIN

Respondent

REASONS FOR JUDGMENT

Introduction

The parties in this matter who have been in a relationship for around 13 years and who have two children from that relationship, are in a dispute as to the nature of their relationship. The applicant says that the parties lived together as man and wife and were in a de facto relationship from 1997 until November 2010.
The respondent denies this and asserts that they were not in a de facto relationship, but rather the parties were in an association of convenience.
The applicant, Ms Wallace seeks a declaration that a de facto relationship existed between herself and Mr Rankin, the respondent, and that it commenced in July 1997 and broke down on 15 November 2010. The Initiating Application was filed on 27 August 2012.
The respondent filed a Response on 26 September 2012 in which he seeks a declaration that he was not in a de facto relationship with the applicant. In the event that the Court finds that there was a de facto relationship, the respondent seeks a declaration that the relationship was at an end by the end of 2008, thus meaning the application is beyond the jurisdiction of the Family Law Act 1975 (“the Act”), on the basis that Part VIII AB did not commence until 1 March 2009.
When the matter was listed for trial, the Court inquired of the parties if they wished to have two separate trials, one regarding whether or not there was a de facto relationship and the second regarding the property division application which would follow on if the Court determined that there was a de facto relationship. Each of the parties agreed that they would prefer one trial, with the preliminary and threshold issue being whether there was a de facto relationship.
In the event that the Court determines that there was a de facto relationship, the applicant seeks property orders dividing the property identified in the application on the basis of a 55% to herself and 45% to the respondent.
If the Court deems that the relationship was within the period provided for within the Act, the respondent seeks orders that: The property at Property T passes into the name of Mr Rankin alone and that is Ms Wallace is removed from the title with the debt attributable to that property, ie loan [omitted] that are in joint names also to be moved to Mr Rankin alone and to no longer be a liability to Ms Wallace. This is effectively an order that the respondent receive 100% of the property acquired during the relationship and existing at the time of the trial, as the remaining two properties, one at [G] and the other at [R], are each in the respondent’s name only.

Background

The applicant was born in Johannesburg, South Africa on [omitted] 1979. She grew up and completed her schooling in South Africa and immigrated with her parents to Perth, Western Australia on 31 December 1996. The respondent was born in Cape Town South Africa on [omitted] 1969. The respondent migrated to Wales with his family, and then to Perth in 1974.
The applicant is currently employed as a [omitted]. The respondent has many qualifications but is also employed as a [omitted].
After the parties met, the applicant fell pregnant early in December of 1997, 11 months after arriving in Australia. Their first child, [X], was born on [omitted] 1998 and their second child and daughter, [Y], was born on [omitted] 2008.
The parties have lived together at various addresses in Western Australia and moved to Queensland in or around January to May 2010. I am satisfied that the geographical requirements of section 90SK are met.
The parties jointly acquired a property at Property T, [T] in Queensland in which both parties and the children lived until separation which the applicant says was November 2010. The respondent says that they were living in the same house, but asserts that the relationship, whatever it was in its nature, had broken down well prior to November 2010, sometime in late 2008.
At the time of trial, the eldest daughter was refusing to spend time with the respondent due to an ongoing impasse.

Witnesses

The applicant

The applicant gave her evidence in a measured fashion with particularity. I considered her an honest witness.
Her account of their meeting, falling in love, living together, having children and living in a marriage like relationship with the respondent was unremarkable.
I accept the applicant’s evidence that once the applicant fell pregnant, they made joint plans for a life together; they discussed building a house in the hills for them both and their children to live in and that it was the respondent’s idea for them both to train as [occupation omitted] so that they could have time off together to spend time with their children, all of which was denied by the respondent.
I accept that at a point in the relationship when things became too much for the applicant, that she packed her bags as described, and told the respondent that she was going to Queensland with [X] to get some time out. The applicant described how having done that, the respondent went directly to court to get an order. I accept that the respondent then contacted her and told her that the police were on their way to her mother’s apartment to recover the child and that the mother broke down and said she needed to get away, and that it couldn’t go on the way it had been going. I accept that the respondent said “just come back” and that he was loving and affectionate in doing so. In terms of the proposed move to Queensland, I accept the evidence of the applicant that there were heated discussions, that the respondent said he didn’t want to be anywhere near the applicant’s family and that he said “if we have to move to the east coast, Cairns would be my preference.”
I note also the strength of the applicant’s desire to move to be near her family and the strong objection that the respondent had about moving, particularly being closer to the applicant’s mother to whom the respondent showed much hostility.
The applicant’s evidence in relation to Centrelink was that she ticked the “single” box at a point in time after she was pregnant and that it was possible she had told other organisations that she was single. Her evidence is that the respondent coached her on what to say just before she went to Centrelink, and what not to say. This happened when they first met and the applicant was around 18. The respondent explained that since leaving university, he had much experience with and was quite familiar with the Centrelink processes. She explained that the respondent would often get on the phone whilst she was talking with Centrelink and speak on her behalf. The applicant said she used the money she received “for the running of our home, clothes for the children and food. It’s only a couple of hundred dollars a fortnight it wasn’t a lot of money.”

The applicant had their first child at age 19. Her evidence is that at times when she did not have permanent work, the respondent moved the family to [omitted] when he got a position, and he moved the family to England or other places, and she could not get continual work. She was raising the children and it was “always placed on my shoulders to apply to Centrelink to receive money, because that was the only money that I had.”[1]
[1] Transcript 12/3/2014, page 97, lines 30-35.
The applicant gave evidence of the discussion that the parties had about moving out of [omitted] after [X] was born, them each wanting a good school for [X], that the applicant should go to university, that the respondent told her being a [occupation omitted] would be a great idea and that during the four years of her study, she could stay at a home a lot of the time with [X] up until she was four, and then she could start school at aged 5. It was a graduated plan and it would work perfectly. The applicant denies there was ever any discussion that the respondent would just live with her to “put a roof over the child’s head” as he suggested in cross examination on several occasions.
The applicant said that she was on Centrelink from the period 1998 to 2008 and that she had never put that she was in a marriage like relationship.
My strong impression of the history of this relationship was that the respondent has been domineering and quite controlling in terms of the parties’ finances and his expectations of the applicant to find her own source of money. The applicant was very young when she entered into this relationship and the respondent was ten years older. I accept that their relationship had periods characterised by conflict
The applicant gave her evidence openly and honestly. She was prepared to make admissions against her own interest.
Wherever her evidence is in conflict with the respondent’s, in the absence of any independent evidence, I prefer the applicant’s version of events.

Mr M

Mr M was formerly in a relationship with Ms W and through this association, met the applicant and [X]. He visited the home of the applicant and respondent at that time. He has also visited Cairns in 2010, and spent time with the applicant, respondent and their children. He observed them living together as a family. He watched the respondent ask the applicant “are you going to make us some dinner?” and about other domestic chores and arrangements.Having spent time with the family, he stated that there was nothing about the living arrangements of the parties and their children that struck him as being any different from how they were living in [G], back when he first met them. He said essentially they operated and appeared to be living as man and wife.
This witness was an impressive witness who gave honest testimony. His evidence provided details of some of the minute details of the parties living arrangements on a day to day basis, as observed by him over the years. I accept his evidence.
The cross examination of the witness by the respondent achieved nothing.

Ms W, maternal grandmother

Ms W gave evidence and was cross examined. She was an impressive witness who was open and candid with the Court. She had good recollections of the detail of the family life of the applicant and the respondent. I accept her descriptions of the family life of the parties and their children as being like a man and wife and their children.
The respondent clearly had a very poor relationship with the maternal grandmother. She gave very clear evidence of what she had seen each party doing in terms of doing up a house when they lived together. The respondent who has spent much effort in criticising and trivialising the non-financial contributions of the applicant, was time wasting in his efforts to challenge the maternal grandmother about her observations.
Whenever the evidence of the respondent and this witness are in contest in the absence of any independent evidence, I prefer the evidence of Ms W.

Ms B

Ms B appeared by way of video link. Her evidence was credible and candid. She gave evidence of her observations of the applicant and respondent presenting socially as a couple and as a family.
The evidence of the applicant and her witnesses gave a very clear picture of a man and woman with two children, living as a couple in a marriage like relationship and living as a family unit. I accept the evidence of this witness.

Ms S, the respondent’s current partner

This witness, being the respondent’s current partner, was not required for cross examination. I agree with the submission of Mr Ryall of Counsel that the evidence of the respondent’s current partner is largely irrelevant and certainly does not prove, as the respondent suggested, that he did not live in a marriage like relationship with the applicant.
I did note from the respondent’s current partner though, the early signs of artificiality within their relationship being established now in that they are allegedly a couple, but they choose not to live together. I ponder how their current living arrangements will be described in any future dispute they may have in the years ahead.

The respondent

The respondent represented himself throughout the proceedings and at the outset, the Court observed that the respondent at all times tried to show courtesy to the Court.
The respondent who is an intelligent man, with a Bachelor of [omitted] and other diplomas and [omitted] qualifications including a Masters, presented his case on the basis of what I regard as his perceived artificial constructs which he points to in explaining that he was just in an “association of convenience” with the applicant, not a de facto relationship. Much of the respondent’s language was carefully chosen to fortify his proposition that he and the applicant were just associates, or as the respondent said at one stage in his submissions, that the applicant was a “friend with benefits.” He has also described the applicant as being “a party friend with benefits.” The applicant who is approximately ten years younger than the respondent, when aged 18 years moved into a shed on the property, close by the house for some months. The shed had no bathroom, so the bathroom within the house had to be used by the applicant. The respondent described the situation as “being funny I had an 18 year old girl living in my shed that loved sex. Perhaps I shouldn’t have taken advantage of the situation but I did.”[2]
[2] Affidavit of Mr Rankin filed 21/02/2014, paragraph 13.
Unfortunately, the respondent also refused to admit even the simplest of propositions including that he took the applicant to a party as his date not long after they met, saying instead that there was a group of housemates invited to the party and the applicant just went along and so did he. When the respondent’s oral evidence was pointed out to be at odds with his own affidavit material, which read “I took Ms Wallace to a party”[3] the respondent said that the sentence was meant to suggest that he drove in the same car as the applicant to the party, not that he took her. The sentence reads, “As a young man I was very image conscious so when I took Ms Wallace to a party and she got drunk and then started hitting on my friends it became an issue she grabbed [Mr T] in the lounge room and stared [sic] kissing him, I said to her what are you doing ([Mr T] quickly apologised to me and said “what could I do”).”[4]
[3] Affidavit of Mr Rankin filed 21/02/2014, paragraph 12.
[4] Affidavit of Mr Rankin filed 21/02/2014.
It is clear from the context of his description of taking the applicant to the party that he was doing so as his date.[5] The respondent’s denials and attempts to recreate history on an issue as simple as this set the tone for his answers in cross examination.
[5] Transcript 13/03/2014, page 205, line 20 onwards.
This explanation was also entirely inconsistent with what the respondent said subsequently happened at the party. The respondent described both orally under cross examination and in his affidavit material, that he caught the applicant kissing another male friend at the party, and that this caused him embarrassment. He admitted that he and the applicant had a scene at the party, that the applicant ran out of the party, down the street and that he chased her. When it was suggested to him that he did this because he was humiliated that the applicant had kissed someone else at the party and that he and the applicant were in in fact in a relationship at that point, the respondent protested that he was just embarrassed about her behaviour as she was a friend of his and that he only chased after her because a mate told him to. I note that the respondent explained that [Mr T], the mate that the applicant was kissing “apologised to me and said “what could I do.” I do not accept his explanations in this regard. This is how the respondent’s evidence unfolded throughout the trial. I consider that the respondent was at times exaggerating his evidence such as when he described the applicant as flying into a “psychopathic rage” at this time after the party.
The respondent also refused to admit that when the applicant was 18 and they first met and commenced sexual relations, that they were “dating.” He preferred to convey the impression that he had so many girlfriends or was having sex with so many girls, that the applicant was simply his default position and that he would have sex with the applicant for a few days and only in those few days were they dating. When describing the applicant living in his shed at his house, he said amongst his descriptions of the applicant being young and keen to have sex, as having “an incredibly addictive personality, large appetites for sex, alcohol and especially cigarettes”[6] and that “if I didn’t meet any new women that night I could always go to the shed and so started the pattern of alcohol and sex.”
[6] Affidavit of Mr Rankin filed 21/02/2014, paragraph 10.
The respondent explained to the Court that the applicant moved into his shed when they first met. He suggested to the applicant in cross examination that she was “not allowed in the house” which the applicant denied. The respondent refused to admit that he allowed the applicant to move into the house, saying instead that the applicant “evolved into the house” as if it was all beyond his control and nothing to do with their being in a relationship. At times his evidence was farcical, such as this suggestion that the applicant who was living in the shed at his house, who he had an ongoing sexual relationship with, who used the bathroom and the kitchen in the house and slept in his bed at times, was “not allowed in the house.”
His narrative continued that eventually, “Ms Wallace fell pregnant in the shed. I can’t be sure if it was by accident or design. I firmly believe in a women’s right to choose so when Ms Wallace said she wanted to keep the baby it was up to her. I never suggested I would marry her, what was discussed in great detail were our roles in the situation. I promised to look after my child which included paying for anything the child needed and to do half of the baby care, in return Ms Wallace promised not to take my child away from me. I did not think it was appropriate at this time for the mother of my child to be living in a shed so I allowed her to move back inside.[7] In his oral evidence under cross examination the respondent tried to minimise his interest in the pregnancy or his desire to even have children. In denying that he suggested to the applicant that they have babies together, the respondent said, “Me at 28 was a very unpleasant human being that simply had sex with women for fun and I’m not proud of it, but that’s the way it was”… and “Your Honour I didn’t care whether she fell pregnant or not is the honest truth” and “I was a crazy young man and had no thoughts in that area whatsoever and no plans whatsoever.”[8]
[7] Affidavit of Mr Rankin filed 21/02/2014, paragraph 15.
[8] Transcript 13/03/2014, page 208, lines 20 onwards.
None of this evidence is consistent with the facts of what did happen in their lives. It is clear from the respondent’s earlier evidence that he was delighted that the applicant was doing so well with her pregnancy and beyond. I do not accept that, as the respondent says, he did not give it a thought when the applicant fell pregnant.[9] The respondent was not a young man travelling around with no regard for his future and no plans. He was in full time employment, he owned his first property when he was 19 and he is very proud of that fact. He had spent nine years at university and in tertiary education. He studied a diploma in [omitted] and then did a diploma in [omitted], followed by a degree in [omitted], followed by a masters degree in [omitted] and finally a graduate diploma in [omitted]. By the time he met the applicant, he had been through earlier plans of marriage with a failed engagement and also another relationship which had produced a child whom he chose to walk away from.
[9] Transcript 13/03/2014, page 208, line 35.
In explaining how it was that he had given an engagement ring to the applicant, which he had from a previous failed engagement the respondent said in his written testimony, “Ms Wallace had always admired [name omitted]’s ring and I said I would give it to her if she continued to do a good job with her pregnancy, she did and that’s how she got the ring. I even got another friend Mr N whose father owned a jewellery store to make changes as requested by Ms Wallace after the birth because I was so happy to have a healthy child.” During his cross examination of the applicant, the respondent suggested an entirely inconsistent proposition being, “I put it to you that I did not give you that ring until after [X]’s birth” which the applicant categorically denied, her evidence being that she was given the ring prior to them deciding to have the baby.
As to the engagement ring, the respondent described it as just another trinket, that he had plenty of rings lying around, did not give the ring to the applicant as she suggested and that the whole scenario painted by the applicant could never have happened as “she was never allowed in the house” and that he had not given her the engagement ring when she was pregnant.
The respondent also then said in support of his assertion that he did not give the applicant a ring until their first child was born, “Well there I was. I had a beautiful daughter and I was over the moon and I don’t know whether I picked up the ring and gave it to her, or whether she had taken it already, I wouldn’t know that kind of detail. It wasn’t a big issue. It was a former flame’s ring.”[10]
[10] Transcript 13/03/2014, page 202, lines 20 – 30.
Apart from the inconsistencies in the respondent’s version of events as to the circumstances in which the ring was given and other issues, my strong impression overall of the respondent’s evidence was that it was inherently implausible.
His artificial constructs in which he now retells their history is inconsistent with the facts, subjective and strategic. He described his first engagement to a girlfriend which lasted six months to a year when he was aged in his 20’s as not serious and that “we were just playing games.”[11] This in my view is to support his retelling of his own history now which is, as he repeated from time to time, that he was “never ever the marrying kind.”
[11] Affidavit of Mr Rankin filed on 21/02/2014, paragraph 3.
He had some rather simplistic justifications for his artificial concepts. For instance, he describes rather flippantly an earlier relationship which resulted in a child being born. This was described as, “On Christmas day 1990 a former short term sexual partner of mine ([name omitted]) of which I had many, came to my parents’ house with a newly arrived baby girl ([name omitted]). This came as a shock but the purpose of the visit soon became apparent. If I wanted to keep this beautiful little girl in my life I would have to commit to a marriage like relationship with the mother. Although this was very upsetting for me and particularly my mother would be completely cut out of [child’s name omitted]’s life I knew marriage was not for me.”[12]
[12] Affidavit of Mr Rankin, filed 21/02/2014, paragraph 2.
The respondent said he did not ever see this child. The respondent’s narrative continues that having not been involved in that child’s life, he was therefore motivated to make a commitment to any children he subsequently had with the applicant. His position is that all of his dealings with the applicant were predicated on the belief that if he didn’t live with her (including moving interstate when she wanted to return to the Eastern side of Australia to be nearer her family), he would not see his children again. The respondent asserts that this explains why he has lived with the applicant and the children for 13 or so years.
I do not accept this position of the respondent. The respondent is educated enough to know that it is entirely possible to seek orders under the Family Law Act to have a child live with him and that it is not necessary to live with the other parent to achieve this. His assertions to this effect are in my view without foundation. The respondent has court experience in the Family Law jurisdiction. He filed an application in the Family Court of Western Australia at a point in time, when the applicant left the home and then told him that she needed some time out and she was taking their child and going to stay with her own mother for a while. The respondent promptly filed an application for a recovery order for the return of the child, and the order issued. The respondent then rang the applicant and told her about his Court action and that he had a recovery order. The respondent denied that he told the applicant that he wanted her to return to him, and said that all he said was that he wanted the child back. I accept the applicant’s evidence that the respondent was upset she had left and wanted her back along with the child. And that is what happened. The applicant and respondent resumed the relationship after this brief interlude.
The respondent’s artificial constructs permeated all of his evidence. So did his desire to be pedantic in order to demonstrate why his relationship was not what the applicant alleged. When asked, he denied the applicant and he went to bed together, but said that, “sometimes we did have sex in my bed.”[13]
[13] Transcript 13/03/2014, page 203, line 20.
The respondent continued to attempt to draw fine distinctions in their routines as a couple, to repudiate any suggestion that the parties lived as man and wife. An example is that even though the applicant and respondent generally physically slept together in the same bed, as their usual practice throughout their relationship, the applicant sought to take issue with the fact that their houses had spare bedrooms and mattresses, or that he sometimes slept in a spare room due to sleeping difficulties. He asserted that the applicant would often retire for the evening to bed earlier than the respondent. In the respondent’s view, these were significant points of difference to be highlighted to demonstrate that they did not sleep together. The respondent’s attempts to deny the simple concept that the parties slept together as a man and wife might do, were time wasting and without merit.
The respondent obtained his first property when he was 19. Having property in his name and keeping it that way, is of the utmost importance to him. His evidence of buying a house and then swapping a house with his mother, but it remaining in her name, indicated to me that the respondent was well versed in the significance of the title being in his name or other names. It also appears to me that it is a priority for the respondent to obtain social security benefits of some kind at any and every opportunity and this has continued for years. This passive income has no doubt helped with the acquisition of properties. The respondent had turned his mind to some very creative thinking in terms of being able to claim Centrelink or other benefits whilst accruing a property portfolio.

It is clear to the Court that the respondent is quite experienced in attempting to portray that things and circumstances are not quite what they might seem, in order to avail himself of social security or other benefits. The respondent gave evidence that he owned a block of land and had built a shed and put a letterbox on the block of land in order to demonstrate to Centrelink that he lived at that property from time to time and not just with the applicant in his other house. He had a tenancy agreement with the applicant as the tenant in the other house. His answers to questions under cross examination as to where he was living at this time of their relationship were most unsatisfactory and deliberately vague. The respondent said of his shifting residential address and where he was allegedly living at times on a vacant block of land “I am trying to say I built the shed, I put my gear there, I was sometimes at [omitted], I was sometimes at [L] (the block), I could be wherever I wanted to be and No, I – it was a blank block that I put a letterbox and a shed and my gear in.”
It was clear to the Court that the respondent deliberately created the impression of having a residential address at the block address, for his own financial gain. The arrangement he portrayed to Centrelink was a farce in many respects.
The respondent was evasive and denied living with the applicant and the children at the property in [L]. It was clear though the respondent ate meals at the [L] home, slept there, washed there, and lived there, however, rather than admit this, the respondent said instead that, “I spent some time there because my children were there and looking [sic] after my children.”[14] The respondent then said he had a number of different places, “wherever I required.”
[14] Transcript 13/03/2014, page 223, lines 20 onwards.
Centrelink investigated the benefits being received by the respondent in parenting payments and new start allowance during 19 January 2006 to 12 February 2006 and 1 September 2006 up to 8 March 2007. Initially the decision was made to treat the respondent as a member of a couple for the specific periods given the inquiry into their living arrangements. Ultimately though, on appeal by the respondent, Centrelink changed their decision and therefore did not seek reimbursement of the alleged overpayment of around $6,200.00. The respondent and applicant’s relationship came under the gaze of Centrelink to quite a lengthy extent.
The respondent also showed his willingness to be untruthful to Centrelink to obtain financial gain. He did this when he moved to London in 2003 (and was then joined by the applicant and children) with the primary purpose of making “good money as a [occupation omitted] overseas.” The respondent admits this and says that it took quite a lot of persuading to get the applicant to agree to come with him and also work in London as a [omitted], where she too could earn “good money.”[15] Whilst there, he continued to receive Centrelink benefits, having failed to tell Centrelink that he had left the country to work overseas and make “good money.” Eventually, Centrelink through their own inquiries, found out that the respondent was overseas in London, not in Australia. The respondent was asked to refund the benefits paid to him.
[15] Transcript 14/03/2014, page 251, lines 0-15.
The respondent did not wish to repay the money so wrote a letter to Centrelink as follows:
I am writing with regards your letter dated 18/5/04 in which you have correctly noticed that my daughter ([X]) and I had left the country. This is correct as I left on holiday to see friends in Europe on August 18^th for a few weeks. While I was staying with a close personal friend they were diagnosed with a serious illness which has prompted an extension of my stay. I didn’t realize that this would affect my Centrelink payments please advise of any steps required to avoid any benefit reductions as this income is crucial in maintaining [X] and myself. Yours Sincerely, Mr Rankin.
The respondent was carefully cross examined about the lies contained in this letter. When it was suggested to him that in the letter, he had told Centrelink that he left the country because he wanted to go on holidays for a few weeks to see friends in Europe the respondent said “I am just trying to recall the context. It relates to visiting people in Europe which did happen and my grandfather contracting cancer and dying which also happened.” It is to be assumed that by reference to his “grandfather” that that person is to be one and the same as the “close personal friend.”
It was then suggested to the respondent that his grandfather contracting cancer and dying occurred the year before he went to Europe to go and find work as a [omitted]. The respondent replied “No I already had a job lined up then as well” which the applicant accepted. The respondent was untruthful with Centrelink and equally evasive when trying to justify his untruthfulness when cross examined on this issue. The respondent refused to admit that his dealings with Centrelink were dishonest, saying that “parts were true and I was travelling to Europe to visit friends and my grandfather did die of cancer in London.”[16] I note the findings of fact of Centrelink that the respondent left Australia on 18 August 2003 and remained absent until 27 July 2004.
[16] Transcript 14 March 2014, page 253, lines 0-20.
The respondent admitted that ultimately Centrelink refused his request for a waiver of repaying the monies and that Centrelink concluded that he did not tell them before he left and that he would have to pay the money back.
The respondent, not content with this decision, then appealed it and went to the Social Security Appeals Tribunal for a review of the decision, appearing in person. The respondent then lied to the Appeals Tribunal about his circumstances, as is seen in the transcript.
The respondent admitted that he told the tribunal that the reason for going overseas was to assist in the care of his ailing grandfather in the UK, and this was not correct. He admitted that he told this lie so he would be let off having to pay back $2,860.27 and $1,023.40.[17] The respondent tried to justify why he said that, saying it was true in the most part, but it was not true that “my primary purpose for going over there was to care for my grandparent.”
[17] Transcript 14 March 2014, page 253 & 254.
Mr Ryall of Counsel then asked:
Well, it’s a bit more than that though isn’t it? You said you lived with your grandparents. That’s not true, is it?
The respondent: I did stay there.
Mr Ryall: You went and visited them once?
Respondent: More than once.
Mr Ryall: And you say in your affidavit at paragraph 28, you tell this Court: I went to London and met up with a great guy named [name omitted] and we proceeded to rent and share a property in [omitted].
The respondent: Yes we did have a property. That was near where I was working.
Mr Ryall: And that’s where you lived?
Respondent: It was my primary residence, yes. I did spend many a night down – where was it? [omitted] but it was a substantial distance from where I was working.
Mr Ryall: So you weren’t living there?
Respondent: So I had to stay there. No I I wasn’t living there. No. No I have already admitted that.
Mr Ryall: Yes so the incorrect comment you made to the tribunal was that you lived with your grandparent – No, it was a lie.
Mr Ryall cross examined the respondent about his further lies to the Tribunal when he told them he came back to Australia because he realised there must be a problem with his payments from Centrelink, which is not what happened. The respondent maintained “it was very close to what happened.”[18]
[18] Transcript 14/03/2014, pages 253 & 254.
Certainly the respondent has been entirely dishonest with Centrelink in his attempt to have benefits paid to him when he went overseas to live and work.
The information given to Centrelink was entirely misleading and it is a good illustration of the lengths that the respondent will resort to in an endeavour to keep a steady stream of passive income coming in, funded by the Australian tax payer. I do not accept the respondent’s explanations during his evidence that he did not have much experience dealing with Centrelink, or that he did not really understand what was going on at a particular time. Quite the opposite is the case in my view, he knew exactly what he was doing and he crafted his explanations to Centrelink including false evidence about having to go overseas to visit his ailing grandparent precisely in the manner he did to ensure he obtained financial gain that he was otherwise not entitled to.
The respondent has used the technique of being evasive in the past when dealing with Centrelink to his advantage. During an inquiry by Centrelink as to whether or not the respondent was in a de facto type of relationship, the respondent refused to advise if he and the applicant shared a bedroom, as described in the Centrelink Decision statement.[19] When this was clarified with the respondent under cross examination, the respondent denied that throughout his dealings with Centrelink he simply refused to divulge the details about where he slept and with whom he slept. He said instead “That’s not true. On the telephone, I spoke to [name omitted] and told her of our unusual sexual relationship.” When queried what was unusual about their sexual relationship, the respondent said “we slept with other people.” He agreed that he and the applicant had a sexual relationship. The respondent also denied calling the applicant names such as a whore and submitted that this was evidence in itself that they were not in a marriage like relationship, as married people would simply not call each other such names. I do not accept this proposition. All through his evidence the respondent has tried to convince the Court that he was just a fellow traveller in a grouping of a man and a woman and their two children. His attempts were at times farcical.
[19] Affidavit of Mr Rankin filed 21/02/2014, annexure 3, annexure page 7.
Part of the respondent’s own evidence was a Centrelink letter dated 2 June 2009, attaching a “Decision statement” relating to a decision to review the decision to treat the respondent as a member of a couple for a specific period.[20] It was suggested to the respondent that he told Centrelink during this inquiry, as evidenced in “the Decision” which sets out the information provided by the respondent, that he and the applicant travel together for holidays with their children, live together, and go out together as a couple with his two children. The respondent said he “could not recall” what he told Centrelink. As recorded in the decision, he told Centrelink that in relation to the nature of the commitment of the people in his household (being the applicant, the respondent and their two children) that he presented publicly as “a family unit with those people” though the respondent held himself out as a single person. He also told Centrelink that it is his intention to continue his current arrangement of living with the respondent indefinitely.
[20] Annexure 3, Affidavit filed 21 February 2014.
The ultimate decision by the review officer from Centrelink in relation to these specific periods was that “Some of the things I looked at, such as the presence of an ongoing sexual relationship, are inconclusive; other things such as the continued sharing of a residence, your commitment to your children and the social aspects, indicate the relationship is similar to that of a married couple; and some things, such as the lack of joint finances, indicate the relationship is not similar to that of a married couple.” On balance, Centrelink decided that the relationship within the specific periods was not that of members of a couple or the existence of a marriage-like relationship.
The respondent agrees and I accept that the parties have lived together in various houses and properties in both Western Australia and Queensland and whilst they lived overseas in the UK during the relationship. It is agreed that the applicant wanted to move closer to her family and she raised this constantly over a period and this lead to heated discussions about where the parties would live. Ultimately, a compromise was agreed upon where the parties would move to the east coast of Australia, but that they would not move to live in Victoria where the applicant’s own mother lived, but rather, they would move to Far North Queensland.
I do not accept that this move from Western Australia occurred in the manner explained by the respondent, that is, that he just moved with the applicant because he feared if he did not, he would lose touch with his children. This excuse of, “I would lose touch with my children if I didn’t” was one of the artificial constructs that the respondent has relied upon.
His assertion that the relationship was well over far before the applicant’s separation date of November 2010 is without foundation. The respondent agrees that the parties were living at [T] having bought the house together with a joint mortgage, each working and/or raising children, living together under the one roof and spending their lives together, as they had done for years. The respondent denied that their sexual relationship was still in existence beyond 2008 in asserting that their relationship was no longer happening after 2008, however, his denial was unconvincing. He stated that, “sex was not existent in terms of if we were completely drunk it might occur but only in those circumstances.”
When queried about the financial and taxation aspects of their relationship I am satisfied that the respondent was deliberately vague and evasive. His feigned misunderstanding of the questions and concepts was time wasting and the Court told the respondent this:[21]
[21] Transcript 14/03/2014, page 267, line 30.
Her Honour: I am letting you know that I think you are wasting my time? - Okay
The respondent is very savvy with all matters financial, as can be seen from his formal studies and from the various contrived arrangements, leases and contracts that have been entered into in order to secure the most favourable tax returns or social security benefits.
The respondent made an issue of the fact that he did not ever go to bed at the same time as the applicant and that therefore the Court should draw from this that they were not in a marriage like relationship. I accept the applicant’s evidence that most of the time the parties’ went to bed together at the same time, but that given the respondent had problems sleeping, he would sometimes sleep on the couch or he would come to bed later. There was no denying however the overarching proposition that the parties slept in the same bed.
The respondent admitted that he and the applicant and the children lived in the same household for most of their relationship. He admitted that he slept in the same bed most of the time, ate meals in the family household, washed, showered, cooked, went to his weekend or extra-curricular activities such as soccer throughout the soccer season and went to and from work. The respondent suggests that this was just so that he could raise their two children for 50% of the time with the applicant: just an association of convenience.
The respondent has always told Centrelink that he was not in a de facto relationship. The applicant has also told Centrelink that she lived separately under one roof and that she did not have financial support from the respondent. The respondent is ten years older than the applicant. Having watched each in the witness box, it is apparent that the respondent was in the most influential position from the start of their relationship. The respondent was older and in a financially secure position.
His concern about how to answer questions to maintain his own case was seen during cross examination when the respondent was reluctant to answer questions spontaneously at times, instead asking where this questioning was heading.

The Law

The law in relation to the issue of de facto relationships is now described in various judgments. As Judge Baumann stated recently in Kersten & Taylor:[22]
[22] [2014] FCCA 65.
Although the term “de facto relationship”, in contemporary Australian society is capable of meaning different things to different people, s.4AA of the Family Law Act 1975 (“the Act”) provides as follows:
Meaning of a de facto relationship
(1)A person is in a de facto relationship with another person if:
(a)the persons are not legally married to each other; and
(b)the persons are not related by family (see subsection (6)); and
(c)having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has effect subject to subsection (5).
Working out if persons have a relationship as a couple
(2)Those circumstances may include any or all of the following:
(a)the duration of the relationship;
(b)the nature and extent of their common residence;
(c)whether a sexual relationship exists;
(d)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e)the ownership, use and acquisition of their property;
(f)the degree of mutual commitment to a shared life;
(g)whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h)the care and support of children;
(i)the reputation and public aspects of the relationship.
(3)No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4)A Court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the Court in the circumstances of the case.
(5)For the purposes of this Act:
(a)a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and
(b)a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.
When 2 persons are related by family
(6)For the purposes of subsection (1), 2 persons are related by family if:
(a)one is the child (including an adopted child) of the other; or
(b)one is another descendant of the other (even if the relationship between them is traced through an adoptive parent);or
(c)they have a parent in common (who may be an adoptive parent of either or both of them).
For this purpose, disregard whether an adoption is declared void or has ceased to have effect.”
The applicant’s Counsel Mr Ryall referred the Court to the Full Court decision of Jonah & White.[23] In the Full Court decision, the trial Judge’s analysis (Murphy J) was accepted. His Honour set out a summary of the relevant principles:
[23] [2011] FamCA 221, [2012] FamCAFC 200 at 562.
“1. There is a necessity to establish the existence of a ‘relationship as a couple living together on a genuine domestic basis’ informed by, but not necessarily determined solely by, the individual findings with respect to the list of circumstances;
2. It is instructive that the legislature did not provide for relief of the type contemplated by Part VIIIAB of the Act in circumstances where one party has, by their words or actions, provided care, love or support to another or, expectation of a relationship of greater commitment than that which transpired. Rather, the legislature has made provision for that relief upon satisfaction of the jurisdictional fact that a relationship of a particular, statutorily-defined type, exists;
3. The legislature did not provide for relief of that type in circumstances where two people where parties to, for example, a ‘domestic relationship’, or as in New South Wales, a ‘close personal relationship’ but, rather, only where parties were in a ‘de facto relationship’ as defined;
4. The key to that definition [de facto relationship] is a manifestation of a relationship where ‘the parties have merged their lives that they were, for all practical purposes, ‘living together’ as a couple on a genuine domestic basis’. It is the manifestation of ‘coupledom’, which involves the merge of two lives as just described, that is the core of a de facto relationship as defined and to which each of the statutory factors (and others that might apply to a particular relationship) are directed;
5. Exclusivity is not a necessary element of a de facto relationship;
6. The fact that the parties live in the same residence for only a small part of each week does not exclude the possibility that they are ‘living together as a couple on a genuine domestic basis’ or that the maintenance of separate residences is necessarily inconsistent with parties having a de facto relationship;
7. The issue is the nature of the union rather than how it manifests itself in quantities of joint time. It is the nature of the union – the merger of two individual lives into life as a couple – that lies at the heart of the statutory considerations and the non-exhaustive nature of them and, in turn, a finding that there is a ‘de facto relationship’.

Mr Ryall of Counsel has also referred me to Allenby & Kimble[24] another decision of Justice Murphy, involving the issue of a declaration that a de facto relationship did not exist and In the Marriage of CH and WA Willmore,[25]a decision of Justice Elliott regarding over-capitalisation.
[24] [2012] FamCA 614.
[25] (1988) 12 FamLR 692.
I have also had regard to Norton & Locke[26]. Similarly I have had regard to the decision of Baker & Landon[27] a decision of Judge Riethmuller and in particular his observations about the differences in the relationships covered by the term “de facto” as it appears in various enactments, as a result not only of differences in wording, but the different purposes of the statutory schemes.
[26] [2013] FamCAFC 202.
[27] [2010] FMCAfam 280 at paragraph 22 onwards.
I have also had regard to Moby & Schulter[28] a decision of Justice Mushin which also has a helpful explanation of the law including an early decision in Roy v Sturgeon[29] an early case decided pursuant to the provisions of the De Facto Relationships Act 1984 (NSW), Powell J of the Equity Division of the Supreme Court of New South Wales suggested that to dissect the phrase appearing in the New South Wales legislation:
…living together as a husband and wife on a bona fide domestic basis into discrete “elements" and then testing the facts of a particular case by reference to a set of a prior rules in order to establish whether a particular element is or is not, present, is to ignore the fact that just as human personalities and needs vary markedly, so, too, will the various aspects of their relationship which lead one to hold that a man and woman are living together as husband and wife on a bona fide domestic basis vary from case to case.
[28] [2010] FamCA 748.
[29] (1986) DFC 95-031; (1986) 11 FamLR 271.
I respectfully agree with the observation of Coleman J in Barry & Dalrymple, that: “Without resorting to dictionary definitions, ‘genuine’ and ‘bone fide’ mean largely the same thing.”
I have also had regard to Elias and Elias (1977) FLC 90-627.
In this application, the applicant carries the onus of proof on the balance of probabilities. I note the respondent also seeks a declaration.

Discussion:
Section 4AA (2)

In working out if persons have a relationship as a couple, section 4AA (2) sets out those circumstances to be examined which as I have said elsewhere, include the following, which I will now turn to. In considering these factors, I rely on but do not repeat, the evidence I have referred to elsewhere in these reasons.
Section 4AA (4) states that a court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
a)the duration of the relationship; I am satisfied that the relationship continued for 13 years as referred to elsewhere in these reasons.
b)the nature and extent of their common residence; The parties lived together for the duration of the relationship. From time to time the respondent would travel overseas on a holiday with mates to see a World Cup soccer match, and the applicant would travel to see her own parents in Melbourne. That does not detract from their ongoing relationship. The parties and their children holidayed together. The applicant and respondent lived in the same houses, sharing the same bed, jointly running the household and raising children and each attending to the children’s educational needs and extra curricula activities. They approached their endeavours jointly, had plans for redevelopment of a business and had involvement in acquiring real estate for their joint use including purchase of a house at [T]. What the respondent fails to realise in rescripting the history of their relationship, is that overwhelmingly the parties did do precisely what the applicant says they set out to do. They did buy property together, travel together, raise their children together, live together, had a sexual relationship, lived as a family unit and presented in all respects, both privately and publicly as a family unit. The respondent’s evidence that he had a discussion with the applicant “that I would just put a roof over my child’s head if Ms Wallace didn’t take my child away” was implausible and the respondent admitted that he had never discussed the time limit which was to apply to the alleged discussion.[30]
c)whether a sexual relationship exists; I am satisfied that the parties had an ongoing sexual relationship for the duration of their relationship as discussed elsewhere in this decision.
d)the degree of financial dependence or interdependence, and any arrangements for financial support, between them; The finances have been largely kept separate. The respondent has quite deliberately in my view tried to keep their finances separate. I accept though that there has been joint sharing of their respective income from time to time. I accept the applicant’s evidence that at a point she was giving cash to the respondent on a regular basis of about $1,000.00 per month, as seen in the bank records. The applicant and respondent have each made claims to Centrelink for assistance. The applicant says she never received regular support from the respondent, but rather, he insisted that she claim support from Centrelink. The applicant says she had to because the respondent would not set up joint accounts and did not wish to be seen to be supporting her and insisted that she use Centrelink benefits. I accept the applicant’s evidence about the structure and nature of their financial arrangements. If the respondent paid the mortgages, the applicant was buying food for the family and providing the essentials. They shared their finances in order to pay their own and their children’s costs. The respondent was also responsible for doing the applicant’s tax return.
e)the ownership, use and acquisition of their property; Properties have been acquired in the respondent’s name and their joint names. The respondent owned a property prior to meeting the applicant. The [T] property was purchased in both names obtained through the joint borrowings of the parties. The parties jointly bought other assets including cars. The parties together used all of the properties owned by either or both of them during their relationship for their own use, or with the commercial property, for their business apart from another tenancy.
f)The degree of mutual commitment to a shared life; The applicant and respondent lived together for 13 years. I do not accept the respondent’s assertion that he had a multitude of other sexual relationships, or that the applicant did as well. Even if that were so, however, it does not detract from the standing of the relationship between the parties. It is just another aspect of their relationship. Despite what the respondent has to say about his perceptions of the relationship there are significant facts which strongly suggest the parties were living together in a marriage like relationship and have been doing so for the best part of 13 or 14 years. Those facts include the respondent’s agreement that the parties have lived together for most of that time. Certainly each of the parties has been on separate holidays from time to time, such as when the respondent twice travelled to Europe with his mates to attend the Soccer World Cup. The applicant has travelled to visit her parents from time to time and taken the children with her. However, I do not consider that separate holidays from time to time is fatal to the parties living in a marriage like relationship. The respondent also agrees that he and the applicant and their children went on family holidays.
g)whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship; The relationship was not registered.
h)the care and support of children; All through the trial the respondent was at pains to say that he and the applicant shared equally in the child raising of their two children. It seems to me that the applicant and respondent were both busy in their parenting tasks throughout the relationship though I consider that the bulk of the parenting was performed by the applicant.
i)the reputation and public aspects of the relationship. I have heard evidence from two witnesses on behalf of the applicant whose testimony I accept, that these two parties always presented to the outside world as a couple living together as man and wife on a genuine domestic basis and as a couple with two children. I accept the applicant’s evidence regarding the public nature of their relationship and that they presented as a couple and a family throughout the time they lived together. I accept also that these concepts are well displayed in the photographs annexed to the applicant’s material.
j)No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
[30] Transcript 13/03/2014, pages 214 & 215, lines 20 onwards.
I accept the there is evidence of the applicant in this matter that, as submitted by Mr Ryall, to satisfy the court that this family unit lived together as any other couple in a marriage like relationship, produced children, raised the children, went on family holidays, went to family celebrations, shared in the parenting, pooled their financial resources, bought and sold property, travelled overseas to work together, and in all respects conducted their life in a marriage like relationship.
In terms of the applicant indicating to Centrelink that she was not in a de facto relationship, I accept her evidence that she was under pressure from the respondent to do this. I note also a finding at a point in time by Centrelink that for a specific period, the parties were not in a de facto relationship. I have not conducted an inquiry as to what the definition of de facto is under the relevant social security legislation. I am however mindful of the comments of Judge Riethmuller in Baker and Landon [2010] FMCAfam 280 when His Honour explained that the definition of de facto relationships appear in a myriad of legislative provisions. His Honour stated:
“The variety in wording is apparent and the wide variety of statutory contexts is significant. The definition in the Acts Interpretation Act `091 at s.22C (which is adopted in many other Acts including the Bankruptcy Act 1966, the Parliamentary Entitlements Act 1990, the Prohibition of Human Cloning for Reproduction Act 2002) is substantially the same as that in the Family Law Act, although with s.4AA(2)(g) omitted. In other Commonwealth legislation differently worded definitions appear, for example: the Migration Act 1958 at s.5CB refers to “a mutual commitment to a shared life to the exclusion of all others”; the National Health Act 1953 at s.4 refers to “living with the person on a genuine domestic basis”; the Fair Work Act 2009 at s.12 refers to “a relationship as a couple of a genuine domestic basis”; the Income Tax Assessment Act 1936 at ss.317 and 102AAB refers to “live with each other on a genuine domestic basis in a relationship as a couple”. The Social Security Act 1991 at s.4 provides an extensive definition with respect to couples (over 2000 words) which provides a list of relevant factors in s.4(3) that is very structured.”
Having listed those factors, his Honour continued:
“Whilst this list of factors under the Social Security Act has similar factors to the Family Law Act, it also has different factors. The importance of a consideration of the social security rule, its interpretation, and the attendant critical literature, is that it demonstrates: first, that there is a degree of uncertainty in the legislation, which has resulted in a number of amendments of the Social Security Act, and secondly, it is apparent that the contest of the legislation is of significant impact in interpreting the provisions. In this respect it is important to note that the Social Security Act provides for financial support for those in society in in need, in contrast to the legislation such as the Family Law Act, and in particular the Status of Children Act in Victoria, which regulate the parentage and property rights in Victoria, which regulate the parentage and property rights of parties who enter relationships"”
His Honour continued later:
“As a result it is likely that there will be differences in the relationships covered by the term “de facto” as it appears in various enactments, as a result not only of differences in wording, but the different purposes of the statutory schemes. It may well be that a person is in a relationship sufficient to satisfy s 4AA of the Family Law Act, yet not satisfy the relevant provision of the Social Security Act 1991. As a result, the receipt of a single rate of pension will not be determinative of the question under the Family Law Act, although the circumstances leading to such a pension being granted will be a factor to take into account.”
Judge Riethmuller also noted that it is important to recall the principle of statutory interpretation set out in cases such as Project Blue Sky Inc v Australian Broadcasting Authority (1998) HCA 28; (1009) 104 CLR 355; where McHugh, Gummow, Kirby and Hayne JJ made refer to the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”.
Though it was not raised by either party, I am aware of and have had regard to the decision in Elias and Elias (1977) FLC 90-267 a single judge decision in which Justice Goldstein of the Family Court of Australia stated that the husband could not be seen to present one position to the Australian Tax Office as he did, that he and the wife were in a partnership, and then come to the Court and contend that the business was solely his. His Honour’s decision was that the husband was bound by his statement to the ATO. This principle is raised from time to time in Family Law cases and referred to as the Elias Principle.
In a recent decision of this Court, Judge Terry canvassed the authorities on the Elias Principle and the history. I am also aware of the recent judgment in Daniher & Garlett [2014] FCCA 2961 a decision of Judge Terry where the issue of Centrelink payments and statements was also discussed. I consider that the applicant has been honest to this Court in explaining her past declarations to Centrelink and as to her evidence about her lack of income at various times given the respondent’s view that she should rely on her own income from time to time.
Her Honour quoted the Full Court Case of Crandall & Crandell [2009] FamCAFC 120 in the Full Court stated:
“The Full Court was referred to Elias & Elias in the 2009 case of Crandall & Crandall and it said as follows:
In the absence of detailed submissions and reference to authority we consider it unnecessary to discuss in detail the parameters and application of the “Elias principle.” A scholarly dissertation is to be found in Jordan & Jordan (1997) FLC92-736 where Chisholm J (at 83,927) posited the following as representing the “Elias principle”:
When a party has made representations of fact to third parties and has gained advantage from doing so, it is open to the Court in subsequent proceedings under s 79 of the Family Law Act to decline to accept from that party evidence which contradicts those representations.
It will be observed that the “Elias principle,” as formulated above, does not represent an inflexible rule. Rather, it imports a discretion permitting the Court to exclude certain evidence. Furthermore, for the “principle” to have any application it is necessary to establish that some earlier representations was made that was inconsistent with the evidence sought to be adduced at trial.”
I note that the Full Court considered that the “Elias principle” as formulated does not represent an inflexible rule and that the Court still retains the discretion as to whether or not to exclude certain evidence.
In this matter, to the extent that the applicant made representations to Centrelink about her status in order to obtain financial advantage, I have already considered the circumstances surrounding those statements, and as I have noted elsewhere in this judgment, I am satisfied that the applicant was forced to do so as the respondent insisted that she did so in circumstances where he would not otherwise provide financial assistance to the applicant and children.
Overall the respondent’s position that he was not living in a de facto relationship but rather “having an association” with the applicant primarily because they were sharing on a 50/50 basis the raising of their two children, and that the applicant is someone he just had sex with and live with is unsustainable. I do not accept that he has had multiple relationships with other women for the duration of his relationship with the applicant. In any event, In any event, the Act at 4AA(5) confirms that the definition does not stipulate that the relationship must be exclusive, rather, a de facto relationship can be established even where one of the parties is legally married to someone else or in another de facto relationship.
The respondent has conducted his case on the basis that he is devoid of personal affection or regard for the applicant, rather she is just a woman he had two children with and with whom he has lived for 13 years as a flat mate, and has had sex with for convenience. Much of what the respondent said about their relationship was not only untrue but scathingly unkind, full of gratuitous criticism and designed to be self-serving. At the end of the trial the respondent was quite taken aback to hear that if the applicant had done 50% of the parenting, which is what the respondent said throughout the trial, that she would be entitled to a property settlement if the Court found that they were in a de facto relationship.
Based on the evidence before me, and noting the provisions of the Family Law Act as defined in s.4AA as to the threshold issue of whether these parties are in a de facto relationship as defined under the Family Law Act, I am satisfied on the balance of probabilities that these parties were in a de facto relationship from when they commenced cohabitation in 1997 until separation in November 2010.
I reject the submission of the respondent that their relationship came to an end in 2008. There is no evidence to suggest that either party expressly stated their intention to end the relationship at that time or that they did end their relationship at that time. The parties remained living together, raising their children and working long after 2008.

The act which signified the end of the relationship was the applicant leaving their former family home at [T] in November 2010.
I dismiss the respondent’s application for a declaration that a de facto relationship did not exist.
I will make the necessary declarations.

Property Settlement

Having made that finding, I will now turn to the application for a property division.

The application for division of property- Section 90SM

The process for determining the division of assets following the breakdown of a de facto relationship are found in section 90SM of the Family Law Act. Section 90SM (4) sets out the considerations the court must take into account including the financial and non-financial contributions. Factors under section 90SF(3) are referred to so far as they are relevant once the court has evaluated the parties respective contributions.
The de facto legislation in terms of property division mirrors the Family Law provisions under section 79 (4) and section 75 (2). The four step process set out in cases such as C & C need to be adopted taking into account however, the comments of the High Court in Stanford and Stanford. In that regard, having seen the Orders sought by each of the parties, I am satisfied that it is just and equitable that this Court make Orders regarding the division of their asset pool. A failure to do so will leave the parties linked through their joint indebtedness in relation to the [T] home.

The first step is to determine the asset pool, then having regard to the financial and non-financial contributions of each of the parties pursuant to s.90SM (4) assessing the percentage division at that point. The third step is to determine whether that percentage requires adjustment to allow for the factors referred to in s.90SF(3) and then finally to examine the actual division split in dollar terms and being satisfied that the division proposed is just and equitable.

The Asset Pool

The assets and liabilities as at the date of the hearing are set out in the applicant’s case outline as follows:

Asset

Value

Property T, [T]

$280,000.00

Property G

$480,000.00

Property R, [R]

$85,000.00

Applicant’s motor vehicle

$5,000.00

Respondent’s motor vehicle

$9,500.00

Applicant’s household contents

$2,000.00

Respondent’s household contents

$4,000.00

Subtotal: non superannuation pool

$865,500.00

Applicant’s superannuation

$52,987.00

Respondent’s superannuation

$44,185.00

Total assets:

$962,672.00

Plus the Respondent’s interest in a partnership business known as “F”

Liabilities

Value

Home loan –Property T

$148,000.00

Investment loan –Property T

$18,000.00

Other loans

$365,000.00

Applicant’s credit card

$4,788.00

Respondent’s credit card

$900.00

Total liabilities:

$536,688.00

NETT (excluding business interests)

$425,984.00

Financial and non-financial contributions – Section 90SM(4)

In terms of the contributions of each of the parties at the commencement of the relationship, there seems to be general agreement that when the applicant met the respondent, he owned a property with some equity. Although there are some unusual family arrangements with the respondent’s own mother in swapping houses at a point in time, the end result of that is that the parties agree that the respondent introduced about $60,000.00 equity over and above the applicant’s contributions at the commencement of the relationship.
As to their contributions during the relationship, the respondent says that he always earned more than the applicant. His superannuation does not indicate this. In any event, the applicant also made financial contributions to the welfare of the family. I note that during the relationship the wife also became a [occupation omitted] and they both worked as [occupation omitted]. It seems to me that the respondent typically sought work as a [omitted]. A small commercial venture was set up by the parties with the acquisition of the property in [R]. The parties set up a business of a [omitted] with the respondent taking the role of landlord and the applicant took the role of shop tenant. The respondent generally operated and controlled the business though the respondent assisted at times.
To the extent that the respondent asserts that she had to pay him rent as a tenant in their [omitted] business, and that the applicant still owes him rent, I am not satisfied that the applicant was ever under a genuine obligation to pay rent. Rather, when the parties were in their de facto relationship, the purchase of this business was done under a structure set up by the respondent, as was always the case in this relationship, the respondent could get as much leverage or deduction in his taxation or that the applicant could do so. The structure enabled a system where they paid rent effectively to themselves through the vehicle of a company or other entity, as owner of the building and thus claim whatever tax benefits could be claimed. Many couples decide to income split or establish business structure to enable them to acquire property and obtain the maximum tax benefit. I do not accept though that there is an actual debt owed by the applicant to the respondent in this regard. They both had an interest in the business, it was a joint endeavour. The building was purchased during the relationship and it is still retained.
I accept that the applicant was the primary carer of the children. At times their income was pooled. They shared joint endeavours, and each made their respective contributions, they purchased property and each worked in their respective manner and made their contributions. The respondent’s refusal to willingly admit that the applicant did painting to the house was typical of his refusal to admit what was obvious. The respondent did himself no credit in attempting to say that all she did was “damage” not painting. His criticisms by the respondent of the non-financial contributions of the applicant were at times scathing and disingenuous. I accept that each of the parties worked on refurbishment of properties and I do not accept the applicant’s evidence in this regard. I note also that if the applicant was not helping the respondent doing physical work, she was looking after the children.
I do not consider that any extra income that the respondent earned as a [omitted] over and above that earned by the applicant is a factor which in the overall scheme of contributions both financial and non-financial requires specific uplift in favour of the respondent. I am not even satisfied that he did earn more income overall. The applicant also worked and contributed throughout the relationship, either raising children, contributing to the welfare of the family, working as a [omitted] or with their joint endeavours. I am to assess their overall contributions both financial and non-financial. There have been periods the respondent did not work at all. I note that at times the respondent was away overseas on holidays. There were times when the applicant solely paid the mortgage repayments.
In turning to the parties non-financial contributions, I am satisfied that as a partnership, each performed a role within that partnership. I consider that the applicant was the primary carer of the children. Whilst I accept that the respondent was an involved parent, his evidence does not ring true in many respects in terms of his contributions to the family. I accept that he collected the children after school at a point. The applicant has done her share of this as well. I do not accept that the respondent would mostly take one child to soccer with him on a Saturday whilst he also played his soccer games. His explanation in this regard was implausible. I accept the applicant’s evidence as to her contributions in terms of the care of the children and the contributions to the welfare of the family.
The respondent strongly asserted that he was responsible for all of the financial contributions and half the child raising, therefore the applicant should receive nothing. He said this on various occasions.
It is not contested that post separation the applicant has been the primary carer of [X] born [omitted] 1998, now 15 who has not seen the respondent for around 18 months or so. The applicant and the respondent are now sharing on a week on/week off basis the care of the youngest child [Y] born [omitted] 2008, aged 6. The parties separated in November 2010.
The respondent may have been paying the mortgages post separation, but he has also had the benefit of occupying the jointly owned property.
Overall in terms of contributions, the respondent submitted that the applicant should walk away from the relationship and transfer all of the assets to him. The applicant submits that the contributions are equal.
I consider that over 13 years of financial and non-financial contributions during the relationship and then their respective contributions post separation, that their contributions are very close to equal. The respondent bought in $60,000.00 at the commencement of the relationship. I have had regard to the principles in Pierce & Pierce (1999) FLC 192-844 when referring to the weight to be placed on initial contributions and giving consideration to the offsetting contributions of the other party during the length of the relationship.
It is submitted on behalf of the applicant, regard must be made of the use of the initial contribution as well as the contributions made by the other party. The funds bought in by the respondent enabled the [G] acquisition however this was also funded by debt which was serviced during the relationship. The [R] commercial property was acquired during the relationship at a price of $100,000.00. and another $10,000 was spent on the property. Mr Ryall submits this investment has depleted in value to $85,000.00 and incurred losses as an investment over three years (2006 to 2009). Mr Ryall submits that the Court should therefore reduce the value to be attributed to the initial contribution and refers the court to in the Marriage of Willmore (1988) 12 Fam LR 692 FLC 91-975 a decision of Justice Elliot.
His Honour noted:
“In determining the extent of contribution made by a party to the acquisition, preservation and maintenance of property it is relevant to determine to what extent that contribution is reflected in the increase in value in that property. Where contribution has led to over-capitalisation, then the contribution is much less in value and effect that would at first sight appear.”
Whilst I am mindful of that decision, I am also aware that there is no suggestion that the respondent spent the funds in a reckless or negligent manner as suggested in the wastage cases and that these parties have used their joint endeavours in that acquisition and business to make it a success with each of them doing the improvements and making contributions to the success or otherwise of the business. I am not prepared to discount the amount of the respondent’s initial contribution on the basis that one of the properties has lost value.
I consider though that the value over 13 years of the $60,000.00 initial contribution by the respondent has been almost entirely offset by the corresponding contributions of the applicant both financial and non-financial.
Post separation I am satisfied the applicant’s non-financial contributions have certainly equalled those financial contributions of the respondent.
I assess that the initial contribution of the respondent over and above that of the applicant, will still result in a slight weighting in the respondent’s contribution to reflect his initial contribution. Overall in my view the financial and non-financial contributions should be assessed at 52% to the applicant and 48% to the respondent.
I will now turn to the section 90SF (3) factors (the equivalent of the section 75(2) factors for married couples) to determine whether any further adjustment to this percentage division is appropriate.

Section 90SF (3) factors (equivalent of section 75(2) factors)

Neither party suffers from any condition that will prevent them from earning an income in the future. The applicant is aged ten years younger than the respondent, which means that the respondent who will turn 45 this year will retire earlier than the applicant who is now aged 35. The applicant has the sole responsibility for raising the parties’ eldest child who has become estranged from the respondent and spends no time at all in his care. The youngest child at this time is going between both households.
The respondent’s income is higher than the applicant’s and the respondent says that he has had a 3 month contract recently and that his income is going to be higher this year than last. It has been his case that his income has always been higher than the applicant.
In terms of child support, the respondent is paying $44.00 per month to the applicant. This amounts to less than $2.00 per day for the eldest child, who is now in her teens and at a very expensive period of her life. Such an amount leaves the applicant with a significant burden in terms of providing the major financial support for [X]. The mother and father share the care of [Y], but that also means the applicant has a greater load of child raising costs to pay than the respondent.
The respondent’s age in my view is off-set by the fact of his higher income earning capacity. The applicant however has a greater obligation to raise the two children of the relationship than the respondent, both financially and in terms of the actual time spent parenting. The applicant also has to provide a home sufficient in size to accommodate herself and the two children.
As I have noted, the financial support received from the respondent is very modest in relation to [X]. The respondent says that his income will go up this year, however, even if that is so, and I don’t doubt it, if the respondent retains the benefit of their business, he will have expenses to reduce his taxable income. That will directly impact on his child support assessable.
Similarly if the respondent retains their properties, he will have the benefit of negative gearing. Again, this could reduce his income for child support purposes. Even if it doesn’t, the amount that the respondent pays for child support would need to increase substantially before it could really be seen as any meaningful support for the cost of raising them.
Overall, I consider after consideration of the s.90SF (3) factors, a small adjustment is in order in favour of the applicant of 4%. Applying that adjustment for the s.90SF(3) uplift to the applicant’s initial percentage contribution of 48%, increases it to 52% and the similarly the respondent’s percentage of 52% is reduced by 4%, and his percentage entitlement becomes 48%.
The respondent’s position is that he wishes to retain all of the assets and the accompanying debt. I advised the respondent that if he wished to do this, he would need to approach his financiers forthwith to enable a cash amount to be paid to the applicant.
Based on the net asset pool (non-superannuation) being $328, 812.00 ($865,500 less the liabilities of $536,688), and applying this sum to x 52% requires the respondent to pay the sum of $170,982.00 to the applicant.
Having regard to the size of the property pool and the factors I have referred to in this matter, I am satisfied that this division represents a just and equitable division of the non-superannuation pool.
I will allow the respondent 30 days to organise the finance to pay out the applicant, otherwise, the orders for sale of the properties as proposed in the applicant’s draft orders will apply. I directed the respondent to make those inquiries forthwith at the conclusion of the trial, so as he had the finance in place at the time the judgment was handed down.
I do not intend to attribute any value to the respondent’s interest in a partnership business known as [F] and there is no submission that I do.
Simultaneously with that payment the applicant will assign her interest both legal and equitable in the following properties to the respondent: Property T, Property G and Property R.
Each of the parties will retain their Superannuation funds standing in their own name and other possessions and bank accounts.
I note that given the modest amount of superannuation in the name of each party, it is agreed that they will retain the other assets currently in their possession such as cars and superannuation.

I certify that the preceding one-hundred and forty six (146) paragraphs are a true copy of the reasons for judgment of Judge Willis

Associate:

Date: 22 January 2015

Asset	Value
Property T, [T]	$280,000.00
Property G	$480,000.00
Property R, [R]	$85,000.00
Applicant’s motor vehicle	$5,000.00
Respondent’s motor vehicle	$9,500.00
Applicant’s household contents	$2,000.00
Respondent’s household contents	$4,000.00
Subtotal: non superannuation pool	$865,500.00
Applicant’s superannuation	$52,987.00
Respondent’s superannuation	$44,185.00
Total assets:	$962,672.00
Plus the Respondent’s interest in a partnership business known as “F”
Liabilities	Value
Home loan –Property T	$148,000.00
Investment loan –Property T	$18,000.00
Other loans	$365,000.00
Applicant’s credit card	$4,788.00
Respondent’s credit card	$900.00
Total liabilities:	$536,688.00
NETT (excluding business interests)	$425,984.00