WILCOX and SZWARC

[2017] FCWA 4

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: WILCOX and SZWARC [2017] FCWA 4

CORAM: O'BRIEN J

HEARD: 12-13 OCTOBER 2016

DELIVERED : 13 JANUARY 2017

FILE NO/S: PTW 6730 of 2015

BETWEEN: MS WILCOX

Applicant

AND

MR SZWARC
Respondent

Catchwords:

JURISDICTION - whether the relationship of parties is properly characterised as a de facto relationship - where parties maintained separate households and finances in circumstances where their separate parenting obligations made that appropriate - turns on own facts.

Legislation:

Family Court Act 1997 (WA)
Interpretation Act 1984 (WA)
Marriage Act 1961 (Cth)
Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr J Hanly

Respondent: Mr P Lafferty

Solicitors:

Applicant: Hotchkin Hanly

Respondent: Tyrone B Grantham

Case(s) referred to in judgment(s):

Jonah v White [2011] FamCA 221

Lynam v Director-General of Social Security (1983) 52 ALR 128

MW v Director-General, Department of Community Services (2008) 82 ALJR 629

Pelka v Secretary, Department of Family & Community Services (2006) 151 FCR 546

S v B (No 2) (2004) 32 Fam LR 429

Truman and Clifton [2010] FCWA 91

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1[Ms Wilcox] (“the applicant”) and [Mr Szwarc] (“the respondent”) were in a relationship from late 2005 until November 2013.

2The matter for determination is whether their relationship was a de facto relationship, such as to enliven the jurisdiction of the Court to make orders for alteration of property interests between them.

Background

3The applicant was born in 1960. She is a [secretary]. She was divorced from her former husband, with whom she had three children, in June 2007.

4The respondent was born in 1955. He is [an architect]. He has been married twice; he had separated from his second wife, with whom he had two children, prior to the commencement of his relationship with the applicant.

5The parties had known each other for many years before commencing a personal relationship. They went on their first date on 30 September 2005 and commenced an intimate relationship that night.

6The parties continued their relationship until November 2013, when the respondent told the applicant that he wanted to end the relationship and resume a relationship with his first wife.

7The present proceedings were commenced by the filing of the applicant’s Form 1 application on 10 November 2015, seeking orders for the alteration of property interests. In his Form 1A response filed on 22 December 2015, the respondent sought the dismissal of the application, asserting that the parties were never in a de facto relationship.

8Procedural orders were then made to move the matter to trial on the preliminary issue.

The law

9It is common ground between the parties that their relationship lasted for more than two years and that they were both resident in Western Australia throughout. It is, accordingly, common ground that the Court has jurisdiction to entertain the application for alteration of property interests if and only if the relationship of the parties is properly characterised as a de facto relationship.

10The term “de facto relationship” is not defined in the Family Court Act 1997 (WA) (“the Act”). For the purposes of the Act, the relevant definition is that contained in the Interpretation Act 1984 (WA) (“the Interpretation Act”), which provides as follows:

13A.De facto relationship and de facto partner, references to:

(1)A reference in a written law to a de facto relationship shall be construed as a reference to a relationship (other than a legal marriage) between 2 persons who live together in a marriage‑like relationship.

(2)The following factors are indicators of whether or not a de facto relationship exists between 2 persons, but are not essential —

(a)the length of the relationship between them;

(b)whether the 2 persons have resided together;

(c)the nature and extent of common residence;

(d)whether there is, or has been, a sexual relationship between them;

(e)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;

(f)the ownership, use and acquisition of their property (including property they own individually);

(g)the degree of mutual commitment by them to a shared life;

(h)whether they care for and support children;

(i)the reputation, and public aspects, of the relationship between them.

(3)It does not matter whether —

(a)the persons are different sexes or the same sex; or

(b)either of the persons is legally married to someone else or in another de facto relationship.

(4)A reference in a written law to a de facto partner shall be construed as a reference to a person who lives, or where the context requires, has lived, in a de facto relationship.

(5)The de facto partner of a person (the first person) is the person who lives, or lived, in the de facto relationship with the first person.

11As was observed by French J in Pelka v Secretary, Department of Family & Community Services (2006) 151 FCR 546 at [47]:

The judgment to be made is difficult and, once out of the range of obvious cases falling within the core concept of ‘marriage - like’, will be attended by a degree of uncertainty. Indeed it may be that different decision-makers on the same facts could quite reasonably come up with different answers.

12In MW v Director-General, Department of Community Services (2008) 82 ALJR 629 at [13] Gleeson CJ made the following observations:

The cohabiting parties to many relationships, especially first relationships of the “short-lived and childless” kind, may be surprised to be told that they are involved in a relationship and the nature of marriage or civil union. They may intend no such thing. The same may apply to some people in longer-term cohabitation who have chosen not to marry. It is the common intention of the parties as to what their relationship is to be, and to involve, and as to their respective roles and responsibilities, that primarily determines the nature of that relationship. The intention need not be formed in terms of legal status: to some people that is important; to others it is a matter of indifference… The intention may be expressed, or it may be implied. What is relevant is their intention as to matters that are characteristic of a marriage or a civil union, but that do not depend upon the formal legal status thus acquired. To describe a relationship as being in the nature of marriage implies a view about the nature of marriage. The same applies to a civil union. It is unnecessary, for present purposes, to attempt a comprehensive account of the features of a relationship that might justify such a description. Plainly, “living together” is not enough.

13Section 13A of the Interpretation Act sets out factors which are “indicators” of a de facto relationship, none of which are “essential”. That is in accordance with the observations of Fitzgerald J in Lynam v Director-General of Social Security (1983) 52 ALR 128 at 131 when he said:

Each element of a relationship draws its colour and its significance from the other elements, some of which may point in one direction and some in the other. What met must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error.

14It is necessary also to bear in mind the difference between the definition of “de facto relationship” in the Interpretation Act and that found in the Family Law Act 1975 (Cth) (“the Family Law Act”) when considering decisions made in proceedings under the latter legislation.

15As I pointed out to counsel for the applicant, who referred to a number of decisions made in the Family Court of Australia and the Federal Circuit Court of Australia, “de facto relationship” is defined in s 4AA of the Family Law Act as a “relationship as a couple living together on a genuine domestic basis”. It might be argued by some that there is a distinction to be drawn between a relationship meeting that definition and a “relationship between 2 persons who live together in a marriage‑like relationship”.

16The Marriage Act 1961 (Cth) defines marriage as “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.” Apart from the voluntary nature of the union, there are three components to that definition; heterosexuality, exclusivity and an intention of permanency. Those components are not present in the Family Law Act definition of “de facto relationship”.

17In my view neither are they present in the relevant definition of “de facto relationship” for the purpose of the Act, notwithstanding its reference to a relationship being “marriage like.”

18So much is apparent from the express terms of s 13A(3) of the Interpretation Act, which provides that:

19It does not matter whether –

(a)the persons are different sexes or the same sex; or

(b)either of the persons are legally married to someone else or in another de facto relationship.

20Section 13A(b)(3) is important not only to exclude any strict requirement of exclusivity; the statutory acceptance of the possibility of two contemporaneous de facto relationships means that as a matter of logic, the fact that two parties are not living under one roof “full-time” cannot of itself mean that their relationship does not meet the statutory definition.

21The observations of Thackray CJ in Truman and Clifton [2010] FCWA 91 at [335] to [338] are apposite:

We live in a pluralist society in which concepts of even the most fundamental institutions, such as marriage, are highly value laden. Some of the components I have described of the relationship between Mrs Clifton and Mr Truman would be seen by some as consistent (or at least not inconsistent) with the concept of marriage and yet be seen by others as anathema to that concept.

In the case of legal marriage we have the certainty associated with the certificate of marriage. No matter how appalling the nature of the relationship, those who have complied with the formal requirements of the Marriage Act 1961 (Cth), or its overseas equivalents, are without doubt married. However, the moment a construct such as “marriage-like” is introduced, value judgments will come flooding.

It may well be there are men (and women) who enter into marriage, fully intending to carry on, or at least leave open the possibility of, sexual relationships with others. There are no doubt men (and women) who treat their spouse badly from the very moment they enter into their marriage. There are no doubt marriages in which the wealth or potential wealth of one party is the major inducement to join the union. There are marriages in which husband and wife keep strict accounts, never intermingling what they regard as “theirs”. Some prospective spouses enter into agreements about how their financial issues will be resolved in the event their marriage ends – a phenomenon now regulated by our legal system.

How then is a judge expected to decide whether a relationship between a man and a woman (or indeed under this legislation same-sex couples) is “marriage-like” in circumstances where married couples straddle the spectrum from the deliriously happy to the homicidally estranged?

22As the Full Court of the Federal Court said in Lynam, “in any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.”

23It is the applicant who must prove cohabitation of the required quality: S v B (No 2) (2004) 32 Fam LR 429 at [49].

Evidence relied upon at trial

24At the status hearing listed of the Court’s own motion on 6 October 2016, counsel for the applicant advised that the applicant relied on her affidavits filed on 10 November 2015 and 24 February 2016 for the purposes of trial. Both counsel also asserted that no further steps were required to ensure that the matter was ready for trial.

25It was, therefore, somewhat of a surprise when later that same day the applicant sought to file a further affidavit. Equally, it was somewhat of a surprise when counsel for the respondent advised the Court at trial that the applicant had not complied with various requests for disclosure, with the result that the matter had to be stood down for documents disclosed “at the last minute” to be inspected.

26Nevertheless, the respondent did not object to the admission into evidence of the applicant’s affidavit filed on 6 October 2016, on the condition that he be permitted to hand up in Court an affidavit in reply sworn on 11 October 2016. Both affidavits were, therefore, admitted into evidence.

27The applicant also relied on affidavits from the following witnesses:

1)Her daughter, [E], filed 29 February 2016;

2)Her son-in-law, [A], filed 29 February 2016;

3)Her sister-in-law, [Ms S], filed 1 March 2016;

4)Her daughter, [C], filed 3 March 2016.

5)[Ms W], filed 29 February 2016;

6)[Mr T], filed 29 February 2016;

7)[Ms N], filed 29 February 2016;

8)[Ms B], filed 1 March 2016;

9)[Ms P], filed 1 March 2016; and

10)[Ms D], filed 1 March 2016.

28All of those witnesses were required by the respondent to present for cross-examination and did so.

29The respondent relied on his affidavits filed on 22 December 2015, 18 March 2016 and 12 October 2016. He also relied on the affidavit of his second wife [Ms O] filed on 18 March 2016.

30Ms O was required by the applicant to present for cross-examination and did so.

Observations as to the evidence

31The applicant gave her evidence in a straightforward and apparently honest manner. When she was uncertain of specifics, she made that clear. In my view, she gave her evidence truthfully and any inconsistency was due to genuine difficulties in recollection, and the nature of the issues canvassed, rather than any lack of honesty on her part.

32While the applicant acknowledged that she did not tell Centrelink that she was in a de facto relationship when, for a brief period in 2012, she was in receipt of benefits, I found her explanation of that circumstance to be plausible. I do not regard it as undermining either her credibility or her substantive case.

33All of the applicant’s witnesses gave their evidence in an open, direct and apparently honest manner. They were cross-examined with varying degrees of brevity, but none were shaken. That said, with no disrespect, significant components of the evidence led were not of assistance in determining the matter in issue.

34The respondent was an unimpressive witness. He was clearly conscious that the onus of proof lay with the applicant and endeavoured to give his evidence in a minimalist fashion both in his affidavits and under cross-examination. He was unable to offer any explanation for a refusal to admit prior to trial matters which he readily admitted under cross-examination beyond saying “I don’t know”.

35While the respondent was, of course, entitled to adopt a defensive and minimalist approach, that did not excuse those parts of his evidence where under cross-examination he had to admit that his affidavit evidence was untruthful.

36By way of example, under cross-examination he agreed that “pretty much every time” the applicant came to his home she would bring food with her and prepare a meal; in his affidavit, he had said that was “occasional” and “far from a regular occurrence”.

37By way of further example, the applicant had given evidence in her affidavit of activities which she undertook with the respondent’s children and care she had provided to them. In his affidavit response, the respondent said that the applicant’s evidence in that regard was “highly exaggerated”; under cross-examination, he admitted the evidence was true.

38Overall, the respondent was keen to minimise any contribution the applicant had made to the relationship. He initially demonstrated a strong tendency, conscious or otherwise, to manipulate his recollection of past events to meet his present interests. That said, to his credit, as cross-examination progressed he began to make some concessions, albeit not without reluctance.

39To the extent that any matter might turn on the credibility of the parties, I preferred the evidence of the applicant.

40The respondent’s only witness Ms O gave evidence in a very honest and relaxed manner. While she was careful to be accurate, and not to give evidence about matters not within her direct knowledge, she answered questions openly and without avoidance.

Factual matters not in dispute

41Facts relevant to a number of the indicators referred to in s 13A(2) of the Interpretation Act were not in dispute.

42It was common ground that the relationship between the parties commenced in early October 2005 and ended in November 2013.

43It was also common ground that there was, throughout that period, a sexual relationship between the parties.

44Further, it was agreed, with one minor exception, that the parties did not at any time jointly own or acquire property, nor were they financially dependent on each other. There were no arrangements for financial support between them. They did not at any stage co-mingle their finances, nor open or operate a joint account of any nature. They each retained their own separate income throughout the relationship.

45While it was common ground that the parties had resided together, the nature and extent of their common residence was a matter of dispute.

46The parties maintained separate households throughout the relationship. The degree of mutual commitment by the parties to a shared life was very much in dispute; although as outlined later in these reasons the position of the respondent in that regard moved considerably from that adopted in his affidavit evidence. Similarly, the reputation and public aspects of the relationship were explored at trial.

47The parties did not have children together. The applicant’s children lived with her, and the respondent’s children lived with him, in a flexible shared care arrangement with Ms O. The extent to which the parties cared for and supported each other’s children was the subject of some dispute.

Whether the parties resided together and the nature and extent of common residence

48In her affidavit filed on 9 November 2015, the applicant said:

During the period of our relationship I would spend most weekends and a couple of nights a week at the (sic) [Mr Szwarc’s] residence and he and his boys would also, on many occasions, stay with me and my children at my rental home in [Suburb G].

49The respondent’s answer to that, in his affidavit filed on 22 December 2015, was in the following terms:

Paragraph 18 is only partially correct and is being over stated by the Applicant. Only parts of the weekend were spent together and on only 3 occasions during the relationship that I can recall did my children spend a night at her home.

50In her affidavit filed on 24 February 2016, the applicant said:

[Mr Szwarc] and I lived together, either at his place or mine, for the most part. I would estimate on average, that we would have spent 4 out of 7 nights living together.

51The respondent’s response to that statement was in the following terms:

We never lived together. We may have spent 2-3 nights together some weeks but certainly not every week as alleged.

52In her affidavit filed on 6 October 2016, in the context of her evidence that the respondent had given her a spare key to his home in [Suburb S] (“[the Suburb S property]”) and had again given her a key to his home when he moved to [Suburb K] (“[the Suburb K property]”), the applicant said:

[Mr Szwarc] did not have a key to my house in [Suburb G]. There was no need for him to have a key as I would normally be home when he arrived. The majority of my time during the week and on the weekend would be spent at [Mr Szwarc’s] due to his children’s commitments with sports and school.

53The respondent answered that statement in his affidavit handed up in Court at trial in the following terms:

Although I have no specific recollection of actually giving the Applicant keys to any of the properties she obviously had them because from time to time and very occasionally she would go to my home in my absence.

The Applicant’s children never stayed over at my house and on only one occasion that I can recall did they even visit.

54When cross-examined, the applicant said that in the early stages of the relationship, when the respondent was living at the Suburb S property, she initially stayed with him for “a couple of nights a week”, and that the time spent together gradually increased. She said that when the respondent moved into the Suburb K property she would go there during the week as often as she could and agreed that there was no precise arrangement. She gave the example of staying more continuously with the respondent at times when her children were visiting their father [interstate]. She denied the respondent’s evidence that his children had been to her home no more than three times and was unshaken in her estimates of the amount of time she spent at the respondent’s home.

55When cross-examined, the respondent said that in the early stages of the relationship the parties would stay together overnight two to three nights per week.

56When asked whether the pattern of two to three nights per week together remained fairly consistent over the nearly eight years of the relationship, the respondent’s answer was “occasionally… not every weekend… but yeah a fair bit.” When pressed, he settled on “occasionally”.

57He admitted that there were nights in each week that the parties stayed together overnight. He agreed that extended to four nights per week at times, saying “it wasn’t common, maybe once every three months”. He said that on other weeks they would spend two or three nights together.

58When questioned as to whether the applicant’s children had ever visited his house, he admitted they had. When asked whether they had ever stayed overnight he initially said no, but then said that E “may have”.

59The respondent’s evidence was unconvincing in most respects, including this issue.

60The applicant’s older daughter, C, gave evidence. She was not living with the applicant at the time the parties commenced their relationship, but moved back to live with her in September or October 2011, remaining there for about six months. Her evidence was that during that period the parties “would spend roughly four of seven nights living together at each other’s residences.”

61She gave evidence that she and her younger sister had stayed at the Suburb S property together with their mother on occasion. She recalled the respondent and his sons staying at the applicant’s home. When challenged in cross-examination, on the basis of the respondent’s denial that she had ever stayed at his home, she was firm in her responses and provided more detail, saying that she had stayed at the Suburb S property on perhaps six to 10 occasions, and had also stayed at the Suburb K property.

62I regarded C as a truthful witness.

63The applicant’s younger daughter E also gave evidence. She was 14 years old when the parties commenced their relationship, and living with her mother. In her affidavit, she said:

My Mother would stay at [Mr Szwarc’s] house more days of the week than in the home we shared together in [Suburb G]. I would say on average she would spend 4 or 5 nights at [Mr Szwarc’s] house. I know this because when I was younger I would stay at [Mr Szwarc’s] home in [Suburb K] to spend time with them on weekends, when I had not made other arrangements. I also recall that on occasion I would bring a friend to his place. When I was old enough my Mother would leave me at home alone while she was at [Mr Szwarc’s] house.

64Under cross-examination, she explained that as she became older and more independent her mother spent increasing amounts of time at the respondent’s home. She said that when she was about 16 years old she had a serious boyfriend and when she was aged 17 she would stay with him for the whole of each weekend. She agreed with the proposition that her mother did not spend four nights per week at the respondent’s home in the very early stages of the relationship, but maintained that she did so as time went on.

65Again, I regarded E as a truthful witness.

66While other witnesses on behalf of the applicant also gave evidence as to their understanding of the amount of time the parties spent together at the respondent’s home, they readily acknowledged that their impressions in that regard were formed not by virtue of personal observation, but from their recollection of statements made by the applicant during telephone conversations when she said she was at the respondent’s home. No objection was taken to that evidence, in my view properly, given that one of the indicators of a de facto relationship is the “reputation and public aspects” of the relationship. That said, I place no weight on that evidence in my consideration of the nature and extent of any common residence of the parties.

67I find that in the early stages of the relationship between the parties, they spent on average two nights per week residing together at the respondent’s home. I find further that from a relatively early stage in the relationship, the amount of time the parties spent together residing primarily in the respondent’s home and occasionally in the applicant’s home increased, to the level of an average of three to four nights per week as asserted by the applicant.

68I reject the evidence of the respondent to the contrary and his evidence that the applicant’s daughters never stayed at his home.

69The applicant gave evidence as to why the parties maintained separate households.

70In her affidavit filed on 10 November 2015, she said:

Within two years of the start of our intimate relationship, [Mr Szwarc] asked me to move in with him, however, because of the different ages and dependence of our children, we decided to retain two separate households, with me increasing the time I spent at his [Suburb K] property as much as possible.

71In his affidavit in response filed on 22 December 2015, the respondent declined to admit that paragraph.

72In her affidavit filed on 24 February 2016, the applicant gave similar, but more detailed evidence. She asserted that in or around May 2006 the respondent asked her to move in with him. She said that she remembered telling him that she would love to do so but that that it was too difficult with the difference in the ages of the children and their schooling arrangements. She referred also to the need to consider the work schedule of the respondent’s former wife. She said that she told the respondent of her belief that it might be best for the children if they kept their separate residences for the time being, saying that she would increase the amount of time she spent at his house as much as possible within the confines of the respective responsibilities of the parties to their children.

73In his affidavit filed on 18 March 2016, the respondent denied that conversation ever took place.

74Under cross-examination, the applicant expanded on her explanation, while giving evidence consistent with that contained in her affidavits. It was put to her that the children’s needs were the “only reason” that she did not move in with the respondent and she agreed with that proposition.

75I accept the evidence of the applicant that the discussions she describes took place. I also accept her evidence as to the reasons that the parties maintained separate households.

The degree of mutual commitment by the parties to a shared life

76It was very clear from her evidence, and the observations of her witnesses, that the applicant was from an early stage in the relationship wholly committed to a shared life with the respondent. While the respondent chose not to admit that fact in his affidavit material, he admitted under cross-examination that the applicant was “totally committed” for the whole period of the relationship. He admitted that the applicant told him that she loved him.

77That commitment was not merely expressed in words. It was also demonstrated by actions. Albeit with some reluctance, the respondent admitted that the applicant cooked for him and for his children when staying with him, undertook cleaning of the house and other domestic chores and painted a bedroom at his home.

78Having denied in his affidavit evidence that the applicant helped in any significant way with the work required to build a retaining wall at his house, the respondent admitted as much when cross-examined. Having sought in his affidavit material to minimise her relationship with and care of his children, he admitted that she played with them, cooked for them, cut their hair, cut their nails, gave them massages and helped treat them when they had hair lice.

79He admitted that she had built and developed a garden at his home, with some minor assistance from him.

80Having said in his affidavit evidence that he could not recall having bought a mattress together, under cross-examination he agreed that they had done so, that they had paid half the cost each and that the mattress was purchased for their mutual use at his home.

81While eventually admitting the applicant’s commitment to the relationship, the respondent sought to minimise his own. He sought to characterise the relationship as “casual” throughout.

82In her first affidavit, the applicant said:

Our relationship was a seven year long intimate and exclusive relationship.

83In his affidavit in response the respondent said that the applicant’s evidence was:

…admitted. (sic) to the extent of the length of the relationship which was not permanent and I regarded it as being merely casual and the remainder of that paragraph is not admitted.

84He also declined to admit the applicant’s evidence that the relationship “was a loving one and we had never had an argument or disagreement over this period”.

85Under cross-examination, the respondent was asked whether he had told the applicant or anyone else that he regarded the relationship “as merely casual”. He said he had not. The following exchange then took place:

COUNSEL:The part you seem not to be admitting is the relationship you had with [Ms Wilcox] for seven years was not an exclusive relationship. Is that what you intended to be saying?

RESPONDENT: She deemed it to be, I did not.

COUNSEL:What did you understand exclusive to be?

RESPONDENT: Just a relationship. Just a normal boyfriend, girlfriend relationship.

COUNSEL:Doesn’t exclusive mean that you have a relationship with one person and one person alone?

RESPONDENT: Yes, I suppose it does.

COUNSEL:So are you denying that the relationship so far as you were concerned was exclusive? That is to say that there wasn’t any other person other than [Ms Wilcox] with which you had a relationship at any time during seven years?

RESPONDENT: There is relationship with people. (sic) Not exclusive. I’ve had friends. They’re relationships.

COUNSEL:You’re not saying to the Court that either of you had other partners or other sexual relationships with anyone else are you?

RESPONDENT: No.

86A similar exchange took place when the respondent was asked whether he had told the applicant that he loved her. Initially he said that he probably had, but could not recall. He then said that he “might have said it at the odd time, yes”. When asked whether, when telling the applicant he loved her, he was being truthful, he said “probably at the time yes”.

87The applicant gave evidence that the parties had active discussions about purchasing a home together. The respondent denied any such conversations took place.

88C said that she was present in 2013 during several conversations between the parties about their plans to move in together and purchase a home in the [Suburb M] or [Suburb H] area. Ms S gave evidence that the respondent had told her directly that he and the applicant were thinking of buying a house in the [Suburb M or Suburb H area]. A said that he had been present for conversations between the parties about the same topic, and recalled the respondent saying words to the effect that the parties wanted to move to somewhere around the Suburb M area, so as to be close to A and his wife as they were expecting their first child.

89I accept the evidence of the applicant and her witnesses in relation to that issue.

90The respondent also sought to minimise the extent of his involvement in family and similar functions, saying in his affidavit filed 18 March 2016:

I may have been at family functions occasionally but it was not as regular an occurrence as she appears to suggest. I did attend the occasional funeral with her but I believe she is overstating the matter by stating we were a couple.

91Under cross-examination, the respondent admitted that the applicant got on well with his family. Having initially suggested that his mother did not like the applicant nor trust her, he did not deny that his mother may have referred to the applicant as her “third daughter-in-law”. He admitted that the applicant helped him arrange his mother’s 90^th birthday celebrations, that she socialised with his two sisters on occasions and that she joined his family for Christmas lunch each year of the relationship. He admitted socialising with the applicant’s family and her friends and attending her daughter’s graduation. When it was put to him that the applicant’s children regarded him as a “father figure” he acknowledged that they may have.

92I accept the evidence of the applicant and her witnesses as to the involvement of the parties with each other’s families.

93The parties travelled interstate and overseas for holidays together on several occasions, including to Europe in 2011 with the applicant’s sister and her husband and to [Asia] in 2010, 2012 and 2013. The respondent’s children also accompanied the parties on the 2012 holiday to Asia, which took place during the school holiday period. While the respondent sought to characterise that holiday in particular as nothing more than the applicant joining him and his children on their independent family holiday, I reject that characterisation.

94During cross-examination the respondent was asked how he and the applicant were getting on during their holiday in Asia in 2013. He said that things between them were “fine” and when asked how he saw his future with the applicant at that time, he said “the same, no change”.

95The following exchange then took place:

COUNSEL:You thought the relationship would continue and you were happy for it to continue?

RESPONDENT: Yes.

COUNSEL:You had no reason to believe at that time that the relationship might end?

RESPONDENT: I think it was slowly tiring.

COUNSEL:Certainly, you had no intention of ending the relationship at that time?

RESPONDENT: Not while we were away, no.

COUNSEL:At no time prior to the relationship actually ending, you didn’t see it ending did you? You saw it as long-term?

RESPONDENT: Yeah long term relationship.

COUNSEL:You saw it as a permanent relationship?

RESPONDENT: Yes, I suppose, yes.

96As noted above, the respondent had to that point consistently sought to characterise his relationship with the applicant as “casual”. In his closing submissions, the respondent’s counsel properly conceded that such a characterisation was unsustainable.

97Instead, counsel for the respondent submitted that while the applicant was committed to a shared life with the respondent, the reverse was not the case and accordingly the commitment was not “mutual”.

98I reject that submission. While it may well be that the applicant was “more committed” than the respondent, equality by degree of commitment is not required for that commitment to be mutual.

99I find that the parties were, from an early stage in their relationship until very shortly before the relationship ended, mutually committed to a shared life.

Whether the parties cared for and supported children

100The parties did not have children together.

101They did, however, care for and support each other’s children socially, emotionally and in practical ways, albeit not by the provision of direct financial support.

102The respondent’s children are younger than the applicant’s children. I accept, as already indicated, the applicant’s evidence as to the care which she provided for the respondent’s children while at his home.

103The respondent also provided some care and support for the applicant’s children. They holidayed together and he acknowledged for example attending the graduation ceremony of the applicant’s daughter. He provided practical help in the manner one would expect of someone in a committed relationship. By way of example, C recalled one occasion when she was about 19 years old and on a night out in Fremantle. When she could not get a taxi, she phoned the respondent at about 2.30 am and he happily came and picked her up with her friend. They then stayed overnight at his house.

The reputation and public aspects of the relationship

104The evidence of the applicant’s witnesses is informative in considering the reputation and public aspects of the relationship between the parties.

105C, the applicant’s daughter, described the respondent has “a father figure and male role model in [her] life”. She described his relationship with the applicant as “lovely”, saying that they were “always happy” when she saw them and that they “never argued”. She described the respondent attending all family and other significant events with the applicant and automatically included the respondent in any planned invitations to her mother.

106Ms B, the applicant’s sister, described the parties attending “many family gatherings and functions together” and said that they “always presented as a committed couple.” When asked in cross-examination what she meant by the expression “committed and loving” she answered that the parties were “nearly always together” and that the applicant always talked about the respondent.

107Ms D, also the applicant’s sister, said that the respondent, and quite often his boys, came to many family functions over the period of the relationship. She said that the parties were “always together” when she saw the applicant.

108Ms S, the applicant’s sister-in-law, expressed her belief that the parties were in “an exclusive and committed relationship for several years.” She said that she would see the applicant on average about once every two weeks, and that when she did, the parties were “always together”. She said that the respondent was “regarded as part of the family and considered a brother-in-law by me”. She too described an automatic expectation that if an invitation was issued to the applicant, the respondent would also attend.

109Ms W described seeing the parties together at many events, and expressed the view that they “always presented as a loving and devoted couple.”

110A, the applicant’s son-in-law, described the parties as “just like husband and wife”. He said that the respondent was with the applicant at “every family event”.

111Ms N, the applicant’s sister, confirmed that the respondent attended many family events with the applicant, and that the parties shared “many wonderful times on weekends” when they would stay together at her home. She thought of the parties as a couple and said she and her husband accompanied them on a five-week overseas holiday. When asked in cross-examination to describe her perception of the parties as being “just like a married couple” she did so in considerable detail and at length.

112E, the applicant’s daughter, said that to her observation the parties’ relationship was “loving and serious” and that they were “always together”. She described them as being affectionate towards each other and her own relationship with the respondent as being “very close”. She said that she considered the respondent to be “family and somewhat of a father figure in [her] life as [she] believed his and [the applicant’s] relationship to be a permanent one”. In cross-examination, she agreed with the proposition that she had regarded the parties as “permanent partners from the word go”, saying that they were “very serious” from the start of their relationship.

113I conclude that the public aspects of the relationship attracted to it a reputation as being monogamous, long-term and mutually committed.

Conclusion

114It is for the applicant to establish that the parties were in a de facto relationship, by reference to the non-essential indicators of the existence of such a relationship set out in section 13A(2) of the Interpretation Act.

115In my view, she has discharged that onus.

116In reaching that conclusion, I have taken into account not only the disputed evidence outlined in detail above, but the common position of the parties that throughout their relationship they maintained separate households, that they did not at any time jointly own or acquire property (other than some minor chattel property) and that there was no financial interdependence, nor arrangements for financial support between them.

117The statutory indicators of the existence of a de facto relationship are not individually essential to a finding that the relationship existed. There is also, in my view, a degree of interaction and overlap between the individual indicators; for example, it might in certain cases properly be argued that the maintenance by parties of separate households, and the maintenance of separate finances, calls into question the degree of their mutual commitment to a shared life. By the same token, in other cases the maintenance of separate households or separate finances might be the subject of circumstance and explanation making it clear that no adverse inference as to the degree of commitment to a shared life is appropriately to be drawn.

118The non-essential nature of the individual indicators is clear not only from the statute (though that would be sufficient) but also as a matter of logic when considering whether the relationship in question is “marriage like”.

119For example, as Thackray CJ observed in Truman and Clifton, there are marriages in which the parties keep their finances strictly separate, and the legislation permits binding agreements regulating or excluding any degree of financial interdependence in the event the relationship ends.

120I respectfully adopt the observations of Murphy J in Jonah v White [2011] FamCA 221 where his Honour said at [65] to [66].

It seems to me to be clearly established by authority that the fact that, for example, 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. So much is, in my view, clear from the statutory recognition the parties to a relationship can be married but also be in a de facto relationship.

The issue, as it seems to me, 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”.

121In my view, the parties had a deep mutual commitment to a shared life, consistent with the reputation and public aspects of their nearly eight year relationship. They resided together, and the nature and extent of their common residence was as found earlier in these reasons. Their decision to maintain separate households, and separate finances, was explained by the applicant in evidence which I accepted; that explanation not only “rang true” but would negate any suggestion that the maintenance of separate households and finances in any way called into question the degree of mutual commitment to a shared life. The parties had a sexual relationship throughout and provided care and support to each other’s children. I have no hesitation in concluding that they merged their two individual lives into life as a couple.

122Taking into account the evidence in relation to all of the statutory indicators I conclude that the parties were in a de facto relationship for a period of well over two years prior to the end of that relationship in November 2013. It being common ground that the parties were both resident in Western Australia throughout their relationship, I conclude that this Court has jurisdiction to hear and determine the application filed by the applicant on 10 November 2015 seeking orders for the alteration of property interests.

123I note that it is also common ground that the application was filed within two years after the end of the relationship.

124I will hear from counsel as to the procedural orders required to progress the substantive application.

I certify that the preceding [124] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate
13/01/2017