WILSON and ROBERTSON
[2021] FCWA 121
•9 JULY 2021
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: WILSON and ROBERTSON [2021] FCWA 121
CORAM: TYSON J
HEARD: 3 and 4 MAY 2021
DELIVERED : 9 JULY 2021
FILE NO/S: [Redacted]
BETWEEN: MR WILSON
Applicant
AND
MS ROBERTSON
Respondent
Catchwords:
FAMILY LAW – JURISDICTION – De facto relationship – Whether relationship “marriage-like” – Evaluation of factors indicating a de facto relationship – Where the parties were in a romantic relationship, but never lived together or cohabited in a common residence – Where the relationship was characterised by frequent separations and reconciliations – Where the Court is not satisfied that either party was financially dependent on the other – Where the Applicant made statements to various third parties confirming he and the Respondent were not in a de facto relationship, for which he obtained financial benefit – Where both parties deposed on oath in earlier proceedings, that they were not in a de facto relationship – Where the Respondent lent money to the Applicant, which was documented – Where there is a dispute as to the amount of money, if any, which the Applicant owes and proceedings have been commenced in another Court – Where the Court is not satisfied the parties were in a de facto relationship – Application dismissed – Case turns on its own facts
Legislation:
Family Court Act 1997 (WA)
Interpretation Act 1984 (WA)
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Self-Represented Litigant |
| Respondent | : | Mr Rynne |
Solicitors:
| Applicant | : | Self-Represented Litigant |
| Respondent | : | Hearty & Tam Family Lawyers |
Case(s) referred to in decision(s):
Brandi v Mingot (1976) 51 ALJR 207
Chan v Mazurkiewicz [2015] WASC 432
Clarence & Crisp (2016) FLC 93-728
Elias and Elias (1977) FLC 90-267
G v O (2018) 369 ALR 346
GLS v Russell-Weisz (2018) 52 WAR 413
H v P [2011] WASCA 78
In re LC (Children) (Reunite International Child Abduction Centre intervening) [2014] UKSC 1
Jones v Dunkel (1959) 101 CLR 298
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361
Lynam v Director-General of Social Security (1984) FLC 91-577
MW v Director-General, Department of Community Services (2008) 82 ALJR 629
Re F: Litigants in person guidelines (2001) FLC 93-072
Ryan v Zekas [2020] WASC 124
Scherini v Conwell [2018] WASC 172
Sinclair & Whittaker (2013) FLC 93-551
Truman and Clifton [2010] FCWA 91
Wilson and Wilson [2016] FCWAM 174
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
IT IS NOTED that publication of this judgment by this Court under the pseudonym Wilson and Robertson has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).
TYSON J:
1[Mr Wilson] claims he and [Ms Robertson] were in a de facto relationship from 2013 until 2019, and the Court has jurisdiction, pursuant to the Family Court Act1997 (WA) (“the Act”) to deal with his application for property settlement. He submits if the Court is not satisfied the de facto relationship lasted for at least two years’ duration, that he made substantial contributions[1] and there would be a serious injustice if the Court were not to make an order under Part 5A of the Act.
[1] Mr Wilson’s Form 1, paragraph 2(c) filed 16 July 2020.
2Ms Robertson says the parties were never in a de facto relationship. She denies Mr Wilson has made substantial contributions, and a failure to make orders would result in a serious injustice. Ms Robertson seeks Mr Wilson’s claim be dismissed.
3The principal issues requiring determination are:
(a)Were Mr Wilson and Ms Robertson in a de facto relationship?
(b)If so, when did it commence and when did it end? And
(c)If there was a de facto relationship for less than two years, did Mr Wilson make substantial contributions and would a failure to make an order, result in a serious injustice?
WHAT IS THE RELEVANT LEGISLATION?
4These proceedings are determined pursuant to Part 5A of the Act which confers jurisdiction on the Court to make orders for property settlement in relation to parties who have lived in a de facto relationship. Section 205Z of the Act provides as follows:
(1)A court may make an order in relation to a de facto relationship only if satisfied —
(a)there has been a de facto relationship between the partners for at least 2 years; or
(b)there is a child of the de facto relationship who has not yet attained the age of 18 years and failure to make the order would result in serious injustice to the partner caring or responsible for the child; or
(c)the de facto partner who applies for the order made substantial contributions of a kind mentioned in section 205ZG(4)(a), (b) or (c) and failure to make the order would result in serious injustice to the partner.
(2)In deciding whether there has been a de facto relationship between the partners for at least 2 years, the court must consider whether there was any break in the continuity of the relationship and, if so, the length of the break and the extent of the breakdown in the relationship.
(3)Subsection (2) does not limit the matters the court may consider.
5The terms "de facto relationship" and "de facto partner" are defined in s 13A of the Interpretation Act 1984 (WA) (the "Interpretation Act") as follows:
(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 people, 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 independence, 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.
6As Master Sanderson observed in Scherini v Conwell,[2] there are two important points to note about this definition:
The first is the section appears to place great emphasis on the parties residing together. In subsection (1) there is reference to two persons ‘who live together’. In subsection (2)(b) there is a reference to two persons who have ‘resided’ together. In subsection (2)(c) there is reference to ‘the nature and extent’ of the common residence. All of that suggests careful attention needs to be paid to the living arrangements of the parties. Second, there is no reference to anything like natural love and affection. The closest the section comes is subsection (2)(i).
[2] Scherini v Conwell [2018] WASC 172, [4].
7The decision as to whether a de facto relationship existed at the relevant time, is a judicial one, having regard to the factors in s 13A(2).[3]
[3]Ryan v Zekas [2020] WASC 124, [11].
8The concept of a "marriage-like" relationship is not defined in the legislation. In determining whether parties are living in a marriage-like relationship, the Court is required to reflect on the "nature of marriage generally" and to have regard to the factors identified in s 13A(2) of the Interpretation Act.
9There is no standard objective test which exists, to compare a de facto relationship to a marriage. The difficulties in determining whether parties were in a de facto relationship have been well recognised because people arrange their affairs and relationships in many different ways. His Honour, Thackray CJ in Truman and Clifton [2010] FCWA 91 said at [338]:
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?
10The Court of Appeal in G v O (2018) 369 ALR 346 observed[4] that the required evaluative judgement can be difficult, and the characterisation of the relationship, “attended by a degree of uncertainty”. The Court went onto observe:
51.The difficulty referred to above arises from the nature of the task which the court has been given by the legislature. Widely varying conceptions of marriage present challenges for the application of the criterion of being ‘marriage –like’ in determining whether a relationship falls within the definition of a de facto relationship. In MW v Director-General, Department of Community Services,[5] Gleeson CJ observed that there ‘is a wide range of human behaviour across the spectrum between a sexual encounter and a marriage or civil union’. Common experience also shows that there is a broad range of domestic and financial arrangements, and within married relationships.[6] As Gleeson CJ also noted in MW,[7] to describe a relationship as being ‘in the nature of marriage ‘(the statutory language in that case) implies a view about the nature of marriage. The same is true of the description of relationship as ‘marriage – like’.[8]
52The difficulty in answering the question posed by s 13A(1) is increased by the fact that s 13A(2) provides that none of the indicators which it lists are essential. Further, s 13A(3)(b) indicates that exclusivity of the relationship between the parties is not essential. While, under Australian law, a party can only be married to one partner, the party can be in a de facto relationship with one person while married to a third person and/or while also being in a de facto relationship with others.
53Section 13A(1) refers to the parties ‘liv[ing] together’. However, it has been recognised that a common residence is only one of the factors in s 13A(2). Accordingly, it is open to a judge to conclude in appropriate circumstances that, despite physical separation, there are sufficient other factors present to indicate the existence of a de facto relationship. While time spent apart will be a factor to be taken into account, no one factor, such as whether the parties are physically separate at the relevant time, will be determinative. A de facto relationship may exist even though the parties lived together only for limited periods.[9]
[4] at [50].
[5] MW v Director-General, Department of Community Services (2008) 82 ALJR 629, [14] adopted in Truman [342].
[6] See Truman and Clifton [2010] FCWA 91 [337] - [338], [345] - [346]; Chan v Mazurkiewicz [2015] WASC 432 [10].
[7]MW (supra), [13].
[8]Truman v Clifton (supra), [341].
[9]H v P [2011] WASCA 78 [73]; Clarence & Crisp (2016) FLC 93-728.
11In Lynam v Director-General of Social Security (1984) FLC 91-577 at 79,663 Fitzgerald J 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 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. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. 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.
12Ultimately, it is necessary for the Court to undertake an overall assessment of the facts and the relevant elements, of the relationship.[10]
WHAT ARE THE BRIEF BACKGROUND FACTS?
[10]H v P (supra) [55].
13Mr Wilson was born [in] 1969. He is 51 years of age and is a self‑employed [tradesman], trading as [Tradesman Company A]. He lives in [Suburb A].
14Ms Robertson was born [in] 1964. She is 57 years of age and is retired. She lives in [Suburb B].
15Ms Robertson and Mr Wilson have been married previously. Following the breakdown of their respective marriages, each of them were involved in proceedings before the Family Court of Western Australia.
16Mr Wilson was married to [Ms Wilson]. They have two sons, [Child A] born [in] 2002 and [Child B] born [in] 2004. Mr Wilson and Ms Wilson separated [in] 2011. I will return to their Family Court proceedings shortly.
17Ms Robertson was married to [Mr A]. They have three daughters, [Child C] born [in] 2002, [Child D] born [in] 2003 and [Child E] born [in] 2005. Ms Robertson and Mr A separated [in] 2008 and were subsequently involved in lengthy litigation, including a 21-day trial in 2010, an appeal in 2010 and further hearings, between 2011 and 2016.
18Ms Robertson and Mr Wilson met [in] 2013 and commenced a romantic relationship in [early] 2013. Ms Robertson was then in a superior financial position to Mr Wilson, in terms of her income and assets. Ms Robertson was self-employed and managed a successful [business]. She lived at [Property A]. She also owned an apartment in [City A], and [a farm located at Property B] (“the Property B farm”).
19At the time, Mr Wilson was employed in [maintenance], earning around $60,000 per annum. He lived in his home at [Property C], which was subject to a mortgage. At that time, Mr Wilson and Ms Wilson had not resolved financial matters. Mr Wilson and Ms Wilson also owned a [business], which Mr Wilson sold in 2013 for $40,000. The proceeds of sale were applied to meet various debts and expenses for the business.
20In 2013, the parties commenced a romantic relationship. Later that year, Ms Robertson was diagnosed with [medical condition A], and underwent surgery in [late] 2013. Mr Wilson supported Ms Robertson during this period.
21In [late] 2013, Mr Wilson injured his knee at the Property B farm. He was unable to work for the month and then returned to work, on light duties. In [late] 2014, Mr Wilson underwent surgery and in [early] 2015, he returned to work. Mr Wilson’s employment was later terminated, which led to him seeking compensation for unfair dismissal.
22Between [late] 2013 and [late] 2014, Mr Wilson received sickness benefits. He was later assessed not to have been entitled to those payments, which resulted in a Centrelink debt.
23Following Mr Wilson’s injury, he began drawing against his mortgage to meet his living expenses, and to discharge a debt to a [Government Agency]. Between 2013 and [late] 2015, Mr Wilson withdrew $87,293 from his mortgage.
24Between 2014 and 2018, Ms Robertson lent Mr Wilson money to meet his living expenses, the precise amount of which is in dispute. Mr Wilson says Ms Robertson lent him $55,195, while Ms Robertson says it was $53,910.
25In 2013, proceedings were commenced between Mr Wilson and his former wife, Ms Wilson, in relation to parenting and property matters. Mr Wilson was unable to afford legal representation. He accepted Ms Robertson’s offer to advance funds to meet his legal costs.
26Between 2014 and [late] 2014, Ms Robertson lent Mr Wilson $44,937 for his legal fees. A loan agreement was prepared, which recorded that Ms Robertson would provide Mr Wilson with $45,000, on the basis the funds would be repaid within three years, on an interest free basis (“Loan Agreement”). Attached to the Loan Agreement was an account transaction list, dated July 2013 to November 2014, which set out a series of payments Ms Robertson made either for, or on behalf of Mr Wilson, totalling $44,937.09.[11]
[11] Annexure A, pages 14 - 15 to the affidavit of Ms Robertson filed 23 November 2020.
27It appears to be common ground that Mr Wilson signed the Loan Agreement after November 2014. There is no dispute Ms Robertson advanced the funds recorded in the Loan Agreement.
28After the parties entered into the Loan Agreement, Ms Robertson agreed to lend Mr Wilson additional monies to meet his legal fees[12] and living expenses. Between 2015 and 2019, Ms Robertson advanced a further $80,183 to meet Mr Wilson’s legal fees and other amounts for his living costs.
[12] In relation to both the Family Court proceedings and his unfair dismissal claim.
29Ms Robertson supported Mr Wilson in his Family Court proceedings. She met with the Single Expert Witness, [Dr B], she swore an affidavit for the purposes of trial, and she attended trial for cross‑examination. Ms Robertson deposed[13] she was Mr Wilson’s girlfriend. She deposed that following Mr Wilson’s knee injury, he provided some assistance at the Property B farm, which she described as “not professional type services and was mostly helping move things around with the tractor … [t]he sort of thing I would expect any boyfriend to help their girlfriend with”. She confirmed Mr Wilson completed work for her, for which he was reimbursed by way of wages, and detailed the instructions she gave to her independent bookkeeper to record the five different types of payments to Mr Wilson:
(a)reimbursement for expenses incurred on my behalf, receipts are always provided by [Mr Wilson]. If the amount is small, I will sometimes pay in cash;
(b)loans which are predominantly for legal fees are paid directly to his solicitor’s trust account;
(c)payments directly from my real estate agent for work undertaken on my investment properties. Those funds are deducted from the rental income I receive, and invoices are provided to the managing agent;
(d)remuneration for work undertaken for my benefit (mostly at [the Property B farm]), invoices are always provided; and
(e)loans for living expenses. These are made directly by me to [Mr Wilson’s] bank account and accounted for as a loan.
[13] Exhibit 12, affidavit filed by Ms Robertson on 27 June 2016 in [previous matter].
30Ms Robertson deposed, at [76]:
As mentioned this is not my first experience in the Family Court, I hope it is my last. I understand the principle of contribution and the importance of accounting for it. Although [Mr Wilson] is not my de facto husband I do not myself want to ever be placed in a situation that contribution raised. I hope this goes some way to explaining why I am so particular about the accounting.[14]
[14] Exhibit 12, affidavit filed by Ms Robertson on 27 June 2016 in [previous matter].
31Mr Wilson deposed in his affidavit,[15] that he commenced a relationship with Ms Robertson in 2013,[16] but it was not de facto relationship,[17] that he lived with his mother,[18] and he did not see Ms Robertson all the time when he was with the boys, noting at one stage he was taking the boys to the Property B farm on a “semi-regular basis”, but was not doing so at the time of his affidavit.[19]
[15] Exhibit 11, Mr Wilson’s affidavit sworn 8 May 2015 in [previous matter].
[16] Exhibit 11, paragraph 102.
[17] Exhibit 11, paragraph 7.
[18] Exhibit 11, paragraph 78.
[19] Exhibit 11, paragraph 85.
32The proceedings between Mr Wilson and [his former wife], Ms Wilson, culminated in a three-day trial in [mid] 2016. Judgment was delivered in August 2016.[20] The Court found, consistent with the evidence of Ms Robertson and Mr Wilson, that: they had commenced a relationship in February 2013,[21] Mr Wilson had borrowed money from Ms Robertson to meet his litigation[22] and living costs,[23] Ms Robertson and Mr Wilson maintained separate residences and did not live together.[24]
[20] Exhibit 10, Wilson and Wilson [2016] FCWAM 174.
[21] Exhibit 10, at paragraph 11.
[22] Exhibit 10, paragraph 69(h).
[23] Exhibit 10, paragraph 69(m).
[24] Exhibit 10, paragraph 76.
33The Court rejected Ms Wilson’s allegation that Ms Robertson provided Mr Wilson with non-taxable income, or that Ms Robertson was a financial resource for Mr Wilson.[25] The Court made orders for the children to live with Mr Wilson each alternate week and orders by way of alteration of property interests.
[25] Exhibit 10, paragraph 76.
34In October 2016, Mr Wilson sought a change of his child support assessment. In his application to the Department of Human Services (“the Department”), Mr Wilson stated he owed Ms Robertson $179,278 by way of a personal loan.[26] Mr Wilson said that he did not live with Ms Robertson, whom he described as his girlfriend. He confirmed he had borrowed around $57,000 from Ms Robertson for living expenses and around $123,000 for his legal fees, stating “the Family Court has accepted the existence of the debt” and “[Ms Robertson] does not give me money, she lends it to me … I owe [Ms Robertson] money lent to fund my family court battle and for living expenses”.[27]
[26] Annexure B, page 31 to Ms Robertson’s affidavit filed 23 November 2020.
[27] Annexure B, page 34 to Ms Robertson’s affidavit filed 23 November 2020.
35In [late] 2016, Ms Wilson paid Mr Wilson $40,600 by way of property settlement, and in [early] 2017, she paid a further $25,000 by way of costs. Mr Wilson retained those funds, notwithstanding his statement to the Department that he would repay Ms Robertson with any monies he received from Ms Wilson.[28]
[28] Annexure B, page 34 to Ms Robertson’s affidavit filed 23 November 2020.
36Mr Wilson accepts that Ms Robertson paid $125,183 towards his legal costs. Mr Wilson says Ms Robertson agreed to pay his costs “in exchange for my continual work on her properties”[29] and while he had thought he was required to repay the loan, he no longer considers that Ms Robertson expected him to do so.
[29] Paragraph 42, Mr Wilson’s affidavit filed 18 November 2020.
37Ms Robertson agreed for Mr Wilson to perform work, to reduce the debt he owed to her, but maintains at no time did she suggest to Mr Wilson that he was not expected to repay her. She was emphatic in her evidence, which I accept.
38In 2017, Ms Robertson wrote to Mr Wilson, “I just want to say I have never asked you for the money I have loaned you to be repaid let alone in one lump sum. We did agree I would happily loan the money to you and that you would pay me back through the work you do, your hours would be taken off what you owe me …”.
39In [early] 2017, Mr Wilson filed a further objection to the child support assessment, in which he stated “I am not in a de facto relationship with [Ms Robertson], [Ms Robertson] does not give me money, she lends it to me. The Family Court has examined the loan document and listened to the evidence and found that the arrangement is legitimate. I owe [Ms Robertson] money lent to fund my [F]amily [C]ourt battle and for living expenses”. He confirmed he worked for Ms Robertson to “help and keep my debt down. If I didn’t and kept borrowing money from [Ms Robertson] … I may as well hand her the keys to my house”.[30]
[30] Annexure C, page 44 to Ms Robertson’s affidavit filed 23 November 2020.
40Ms Robertson enjoyed a high standard of living, which Mr Wilson described as extravagant, including regularly dining out, and taking holidays. Early in the relationship, Mr Wilson paid for some drinks and meals. Following his injury, Ms Robertson primarily met the costs of their entertainment and outings, which continued after Mr Wilson resumed working.
41During the relationship, Ms Robertson was generous to Mr Wilson, and his children. Ms Robertson could afford to be generous and explained that she enjoyed Mr Wilson’s company and liked to see him happy. Ms Robertson paid for a number of holidays including:
(a)In 2013, a trip to City A for herself and Mr Wilson, for a week;
(b)In [late] 2014, Ms Robertson paid for Mr Wilson and Child A to join her and the girls in [State A] for a week, including providing Mr Wilson with $5,000 spending money;
(c)In [late] 2014, Ms Robertson paid for Mr Wilson and his children to join her and her children for a week in a villa at [City B]. Ms Robertson later paid to Mr Wilson $3,000 which he said he had spent;
(d)A weekend of horse riding and camping near [Town A];
(e)In 2016, a trip to [Town B], for Mr Wilson’s birthday;
(f)In 2016, a further family holiday to City B, with their children; and
(g)In 2017, an overseas holiday for herself and Mr Wilson to [Country A] and [Country B], for three weeks, flying business class.
42In addition, the parties attended the [Town C] races, camped at [a festival] in [Town D] and spent weekends at hotels.
43Ms Robertson bought many gifts for Mr Wilson. She purchased quad bikes and horses, for her and Mr Wilson’s children to use at the Property B farm.
44Ms Robertson assisted Mr Wilson with his paperwork. She arranged for her bookkeeper to provide Mr Wilson with support when he established his own business. She supported Mr Wilson in seeking compensation following the termination of his employment, as well as his applications for Centrelink and the Department.
45During the relationship, Mr Wilson assisted Ms Robertson in conducting maintenance and improvements to her properties, to which I will return later in these Reasons.
46The parties’ relationship was characterised by conflict. A review of the parties’ communications confirm Mr Wilson and Ms Robertson frequently argued about a range of topics, including their respective circumstances, each party’s expectations of the other, and their sexual relationship. Various communications between the parties were adduced into evidence. Each party relied on select communications, in support of their respective positions. Having had the opportunity to consider the communications, it is plain Mr Wilson and Ms Robertson’s relationship was at times, toxic and hostile, and during arguments, each party made disparaging remarks towards the other.
47Following separation, Ms Robertson issued a letter of demand to Mr Wilson, seeking repayment of $179,093 plus interest. Ms Robertson commenced proceedings in [another jurisdiction], seeking to recover the debt from Mr Wilson. After Ms Robertson commenced those proceedings, Mr Wilson commenced the current proceedings. The [other jurisdiction] court proceedings have been stayed, pending the outcome of these proceedings.
48It is common ground that neither party considered they were in a de facto relationship nor held themselves out to be in a de facto relationship. Mr Wilson says he understood he and Ms Robertson were not in a de facto relationship on the basis that Ms Robertson told him they were not in a de facto relationship because they did not share a residential address and because Mr Wilson did not understand the legal meaning of the term. It is Mr Wilson’s case that since separation, with the benefit of legal advice, he now considers he and Ms Robertson were in a de facto relationship.
WHAT IS THE EVIDENCE RELIED UPON?
49Mr Wilson relied upon his affidavit filed 18 November 2020, together with the affidavits of [Mr C], [Mr D] and [Mr E] filed 29 January 2021. Ms Robertson relied upon her affidavits filed 23 November 2020 and 31 July 2020, together with the affidavits of [Ms F] and [Ms G] filed 23 November 2020, and the affidavit of [Ms H] filed 7 December 2020.
50Each of the parties and their respective witnesses were cross‑examined. By consent, Mr C and Ms F gave their evidence by telephone.
51Mr Wilson represented himself. I explained the trial procedure to him. I provided Mr Wilson with the Self-Represented Litigant Handbook, a copy of s 13A of the Interpretation Act, together with copies of the authorities which Ms Robertson relied upon, at the status hearing. I am aware of the guidelines regarding the manner in which a judicial officer should deal with unrepresented litigants, and the associated discussion contained in Re F: Litigants in person guidelines (2001) FLC 93-072 at [209] to [253]. I applied those guidelines during the course of the proceedings and am comfortable that the trial was fair.
52The trial took two days. A number of documents were tendered by consent, as exhibits. Mr Wilson asked a number of relevant questions and he cross-examined Ms Robertson at some length. At times, Mr Wilson found the process of cross-examination frustrating, however, he conducted himself appropriately. He was courteous and polite. At times, when the evidence was not assisting me, I advised Mr Wilson. It was appropriate that I did so. I am satisfied that both parties had the opportunity to test the evidence of the other.
53In these Reasons, I have not referred to all of the evidence as I do not consider it necessary or practical to do so. If I do not refer to part of the evidence, it should not be assumed that I have ignored or overlooked it.
CREDIBILITY OF THE PARTIES AND WITNESSES
54In my view, Mr Wilson and Ms Robertson demonstrated the tendencies described by Baroness Hale in the matter of In re LC (Children)(Reunite International Child Abduction Centre intervening) [2014] UKSC 1 at [67] where she said:
Almost every witness engages in a certain amount of (conscious or unconscious) manipulation of their recollection of past events to meet their present interests.
55For the most part, I considered that each party attempted to give their evidence honestly. It was apparent that Mr Wilson and Ms Robertson harboured strong feelings about the other party, the proceedings, and how they perceived they had been treated. There was nothing to emerge from the cross-examination of Mr Wilson or Ms Robertson, to lead me to conclude that either of them was being deliberately dishonest.
56Mr Wilson and Ms Robertson each relied on a number of witnesses, who were called to advance their respective positions. In my view, each of the witnesses presented as doing their best to give an accurate account of their observations. With the exception of Mr C, none of them can be considered independent; each of them were strongly supportive of their friend or family member.
Mr Wilson and his witnesses
57I accept Mr Wilson attempted to give his evidence in an honest and candid manner. There are aspects of his evidence which I did not accept, including Mr Wilson’s assertion that the parties commenced a de facto relationship in [early] 2013, when he attended Ms Robertson’s farm for the first time, having met Ms Robertson only once prior to that date. That was inherently implausible. It was also inconsistent with Mr Wilson’s earlier sworn evidence to this Court, in proceedings concerning his former wife, Ms Wilson.
58Mr Wilson struggled to explain the inconsistencies in terms of how he viewed the relationship, with his statements to various third parties, to which I will refer in more detail shortly.
59In relation to Mr Wilson’s credit, another small example arose in relation to Ms Robertson’s application for membership with [a Carriage Club]. Mr Wilson deposed that he did not recognise the handwriting on the form and suggested it could have been Ms Robertson’s. However, in cross-examination, Mr Wilson was immediately able to identify Ms Robertson’s handwriting on a separate document.
60Mr D is Mr Wilson’s cousin. Mr D has assisted Mr Wilson to complete work on Ms Robertson’s garden in Property A, and at the Property B farm. Mr D also swore an affidavit in support of Mr Wilson in his previous proceedings with [his former wife], Ms Wilson. Mr D deposed that up until 2015, he had been to the Property B farm on approximately 10 occasions, with Ms Robertson and her children sometimes being present, and at other times, Mr Wilson being there alone. He and his wife also attended social events with the parties, including Ms Robertson’s 50th birthday party in 2014 at the Property B farm, the races, and other social outings. Mr D deposed to having seen Mr Wilson’s clothing, belongings and “other personal bits and pieces lying around” at the Property B farm, and at [Property D], which Ms Robertson purchased in [early] 2014. While Mr D was somewhat defensive in cross‑examination, I consider he was an honest witness.
61Mr E is Mr Wilson’s uncle, and Mr D’s father. He gave his evidence in a direct and frank manner. Mr E deposed to having known Ms Robertson for around three years but was unable to recall when they first met. He deposed to having visited Ms Robertson’s farm on a number of occasions. Mr E’s unchallenged evidence is that on one occasion, on a date he could not recall, Ms Robertson said she wished Mr Wilson would sell his house so they could move to the Property B farm permanently.
62Mr C attended by way of telephone, by consent. He [works in construction], who performed work on the Property B farm in late 2013 and 2014. Mr C was paid around $50,500, plus further payments for guttering work, by Ms Robertson. Mr C deposed to seeing Mr Wilson building decking and driving the tractor, for grading at the Property B farm. Mr Wilson assisted Mr C with some posts, together with Mr C’s offsider. Mr C gave his evidence honestly, which was of marginal relevance in circumstances where he had very limited involvement with the parties, for a short period in 2013 and 2014.
Ms Robertson and her witnesses
63I consider that Ms Robertson attempted to give her evidence in a truthful manner. She struck me as an intelligent, articulate person, who was careful and considered in her evidence.
64There were aspects of Ms Robertson’s evidence which I did not accept. For example, Ms Robertson maintained that Mr Wilson never kept clothes or belongings at her home, and that he brought a bag with him when he stayed. That was inconsistent with the evidence of Mr Wilson’s witnesses, which I accept, and indeed some concessions made by Ms Robertson. In my view, Ms Robertson minimised Mr Wilson’s involvement and relationship with her children.
65Ms H is a long-time friend of Ms Robertson’s, who lives in City C. Ms H deposed to learning from Ms Robertson that she was in a new romantic relationship in late 2013, which Ms Robertson described as not serious. Ms H met Mr Wilson on a handful of occasions, including attending a birthday party for Mr Wilson’s family, and at times when Mr Wilson was working at Property D. Ms H deposed to having frequently attended Ms Robertson’s home, on average, once a month, and more frequently after her daughter died, without Mr Wilson being present. She did not see any of Mr Wilson’s belongings in Ms Robertson’s home. She readily accepted she was not present “100%” of the time and that her observations were based on the times she had spent with Ms Robertson. She and Ms Robertson frequently socialised without Mr Wilson. While Ms H is clearly supportive of Ms Robertson, I considered she was a reliable witness, who gave her evidence in a thoughtful manner.
66Ms G is Ms Robertson’s sister. She met Mr Wilson in around 2013. She has spent limited time with the parties including at the Property B farm and at various family celebrations over the years. Ms G and her partner travelled to Country A and Country B in 2017, with Mr Wilson and Ms Robertson. Ms G visited Ms Robertson’s home and the Property B farm when Mr Wilson was not present. Her evidence was not seriously challenged.
67Ms F is Ms Robertson’s friend. She met Mr Wilson in early 2013. Ms F estimated to having attended the Property B farm on around seven to eight occasions since 2013, and Mr Wilson was present on approximately three to four occasions. Ms F and Ms Robertson frequently socialised without Mr Wilson. Ms F assisted Mr Wilson in 2015 to set up his email account and business name domain, while Mr Wilson assisted Ms F with work at her home, including removing a back patio and pool fencing, and removing palms. Ms F said Ms Robertson referred to Mr Wilson as her boyfriend, and over the years, from their conversations, Ms Robertson referred to the fact she and Mr Wilson were “on again, off again”, with regular separations.
WERE MS ROBERTSON AND MR WILSON IN A DE FACTO RELATIONSHIP?
68Mr Wilson carries the burden of satisfying the Court that the parties were in a de facto relationship, on the balance of probabilities. Ms Robertson does not bear the onus, to prove the reverse. With that in mind, I turn to consider each of the factors listed in s 13A of the Interpretation Act.
Nature and extent of common residence
69Mr Wilson and Ms Robertson never shared a common residence throughout their relationship.
Length of the Relationship
70Determining the actual length of the relationship between Mr Wilson and Ms Robertson is not straightforward. Neither party seemingly kept a diary or any records, to assist the Court in making precise findings. Further, there was limited useful evidence on this topic.
71Mr Wilson’s case is that he and Ms Robertson were in a de facto relationship from February 2013 until December 2019. He accepts they had breaks, but maintains they never separated. Ms Robertson says the parties commenced a romantic relationship in February 2013, which was “on again off again”, with “many ups and downs”. Ms Robertson was not certain how many times they had separated.
72Ms Robertson’s unchallenged evidence was that she and Mr Wilson broke up on three to four occasions each year, “some serious and for months on end and some short”. However, the relationship is described, Ms Robertson agrees it finally ended in December 2019. On her case, the relationship was effectively over in August 2019.
73Ms Robertson and Mr Wilson met in early 2013, at a party held at the home of mutual friends. Ms Robertson attended with her then boyfriend. The parties spoke and discussed landscaping ideas for Ms Robertson's farm.
74[In] February 2013, Mr Wilson visited Ms Robertson’s home, and then attended the Property B farm, to assist Ms Robertson with removing and installing a kitchen. The parties commenced a sexual relationship that weekend. Mr Wilson referred to [this date in February in which he visited and attended Ms Robertson’s home and farm] as the parties’ anniversary.[31] I do not accept the parties’ commenced a de facto relationship on that date. I reject Mr Wilson’s suggestion the parties then decided to share a life together, which I consider to be implausible.
[31] Exhibit 17, the SMS message from Mr Wilson to Ms Robertson dated 22 February 2018.
75Mr Wilson acknowledges he and Ms Robertson had breaks including from 9 to 23 November 2014, and in April 2018. He accepts he did not spend much time with Ms Robertson in December 2016, when she and her children went away on holiday, and that they were not speaking to one another at the start of 2017.
76Mr Wilson concedes the parties argued between late August and September 2017 and stayed apart. In January 2018, the parties continued to argue about the funds Ms Robertson advanced to Mr Wilson, and the work he had done on her properties. In February 2018, Mr Wilson left Ms Robertson’s home in the middle of the night, leading to further arguments. On Mr Wilson’s evidence, in 2018 and 2019, the relationship was strained, but he still considered Ms Robertson was his partner.
77In my view, Mr Wilson inflated the length and nature of the parties’ relationship. I prefer Ms Robertson’s evidence, which was clear and consistent, to the effect that the parties separated on a frequent basis, during which periods the parties then ceased their sexual relationship and stopped spending time together.
78While the parties may not have used formal language to describe their relationship as having ended in those periods, I accept they were in fact separated, as corroborated by their communications, and them not spending time with one another.
79I accept Ms Robertson’s evidence that notwithstanding the parties’ separation from time to time, she sought to maintain an amicable relationship with Mr Wilson, in an effort to ensure that he repaid her.
80Doing the best I can, with the available evidence, I find the parties commenced a romantic relationship [in late] February 2013, which finally ended in December 2019. The relationship was punctuated by regular separations and reconciliations, which occurred between three to four times each year. Those periods of separation included, but were not limited to, around two to three weeks in November 2014, for a number of weeks in early 2017, for around four weeks between August and September 2017, in early April 2018 and in August 2019.
81The parties’ relationship was clearly strained and in significant difficulty throughout the later parts of 2018 and 2019.
82The evidence does not permit any further precise findings as to the duration of the relationship, which is complicated by the fact Mr Wilson and Ms Robertson never lived together, and the limited evidence in terms of the actual time they spent together, which I will turn to next.
Whether the parties have resided together
83Mr Wilson asserts that while he and Ms Robertson maintained separate residences, they effectively lived together. Ms Robertson denied ever living with Mr Wilson.
84Section 13A recognises that two people can ‘live together’ without ever having ‘resided together’, and accordingly, the former concept is broader than the latter. As the Court of Appeal explained in G v O (supra) at [54], the concept of living together encompasses two people, “who do not necessarily reside together, sharing their lives”, which is consistent with the interpretation adopted by Martin CJ in GLS v Russell-Weisz (2018) 52 WAR 413, “[t]he expression ‘live together’ is to be construed broadly, in the sense of two persons sharing their lives, rather than in the narrower sense of two persons sharing the same physical abode”.[32] This indicates there is a difference between persons living together and residing together.
[32]At [101].
85When the parties met, Ms Robertson was living at Property A while Mr Wilson was living at Property C. Ms Robertson also owned the Property B farm. Ms Robertson lived at Property A with her three daughters and an au pair. The home had three bedrooms and a granny flat. Mr Wilson lived at Property C, with his mother, and his sons, when they were in his care.
86In March 2014, Ms Robertson bought Property D which then became her primary residence, for her and the girls. Property D has four bedrooms.
87It is common ground that Mr Wilson and Ms Robertson never lived together in the one home. Throughout their relationship, each party maintained their separate residences.
88Mr Wilson deposed that he and Ms Robertson spent the “majority” of their relationship “living together between our separate properties. Due to the circumstances of our respective childcare arrangements, and [Ms Robertson’s] dislike (and strong opposition) of my Mother living with me in [Property C], it was difficult for us to live with one another full-time. Further, [Ms Robertson] owned three properties and I, one. Due to the location of each of these properties, together with our work schedules, and care arrangements for our children, living in one property was unrealistic and unreasonable”.[33]
[33] Paragraphs 12 - 13, Mr Wilson’s affidavit filed 18 November 2020.
89He claimed from 2016, he spent alternate weeks with his children at Property C, while Ms Robertson and her children continued to reside at Property D, but they “spent as much time together as we could when we didn’t have our children”. Mr Wilson deposed that his mother moved out of his home during 2017/2018, and Ms Robertson then spent more time at his home, when he had the boys, which he did not quantify.
90Ms Robertson’s counsel asked the Court to draw an adverse inference against Mr Wilson because of his failure to call his mother, who would have been able to give evidence as to the time Mr Wilson spent with Ms Robertson. In doing so, Ms Robertson’s counsel relies on what is known as the rule in Jones v Dunkel (1959) 101 CLR 298.
91The rule permits an inference that the evidence of the absent witness would not have assisted the party.[34] It does not permit an inference that the evidence of the absent witness would have been unfavourable to the party’s case.[35] The failure to give evidence, cannot fill an evidentiary gap in the opponent’s case.[36]
[34] Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361, at [64].
[35] Brandi v Mingot (1976) 51 ALJR 207.
[36] Jones v Dunkel (supra).
92Mr Wilson explained that he had not called his mother because she was elderly, unwell, and that his mother has a poor relationship with Ms Robertson, and he did not want his mother to be “battered” in cross‑examination. I consider Mr Wilson’s failure to call his mother was reasonably explained. I decline to draw any adverse inference from Mr Wilson’s failure to call his mother.
93However, Mr Wilson’s failure to adduce detailed evidence about the periods in which he claimed he and Ms Robertson lived together, in circumstances where the evidence was in dispute, is problematic to his case. Doing the best I can with the available evidence, I am satisfied that:
(a)Ms Robertson and Mr Wilson spent time at one another’s homes, the precise details of which I am unable to determine.
(b)From 2013, Mr Wilson was spending alternate weekends at Property C with his children. Given the difficulties they had adjusting to Mr Wilson’s relationship, Mr Wilson spent limited time with Ms Robertson, when the boys were in his care. Following a family holiday in mid-2014, the relationship improved, which resulted in Mr Wilson spending more time with the boys on alternate weekends with Ms Robertson, the precise details of which I cannot quantify.
(c)From 2016, Mr Wilson’s children lived with him each alternate week, at Property C, on their own. Mr Wilson concedes that Ms Robertson rarely spent time at Property C, because his mother lived with him, and because Ms Robertson’s children lived primarily with her.
(c)After Mr Wilson’s mother moved out of Property C, in either 2017 or 2018 (the date of which is not specified), Ms Robertson spent some time at Property C, when her children were with their father. It appears at that stage, Ms Robertson’s children were in her care for eight nights each fortnight. Again, it is impossible to make any findings as to the time Ms Robertson spent at Mr Wilson’s home, when the children were not in her care.
(d)When Mr Wilson’s children were not in his care, he and Ms Robertson spent time together, at Ms Robertson’s homes in Property A, Property D and the Property B farm, again the dates and details of which are not specified.
(e)In addition, Mr Wilson and Ms Robertson spent time together for holidays, including a week in City A in 2013, a week in State A and a further week down south both in December 2014, a week in Town B in August 2016, a week in City B in 2016, and a three week trip overseas in 2017. In addition to these holidays, they also spent a number of weekends away, including one weekend in Town A.
(f)Mr Wilson and Ms Robertson spent time together at the Property B farm, particularly after 2016, when their children were in their care and when they were getting along.
(g)I find that Mr Wilson had clothing and items at the Property B farm and Property D, consistent with him spending time at both properties. There was no suggestion Mr Wilson was a full-time resident at either property.
(h)The evidence of each party’s witnesses did little to assist in terms of the dates Mr Wilson and Ms Robertson stayed in one another’s homes, accepting they were only occasional visitors to the respective homes.
94To conclude, it is impossible to make findings about the precise periods that Mr Wilson and Ms Robertson spent at one another’s homes, as well as at the Property B farm. I am not satisfied they lived together. Ms Robertson and Mr Wilson merely spent time together between 2013 and 2019, noting my earlier findings as to the regular periods in which they separated
Was there a sexual relationship between the parties?
95It is accepted that the parties had a sexual relationship. There was limited cross-examination on this topic, which was understandable, in light of the difficult and sensitive nature of the subject.
96It was agreed the parties were sexually active, particularly in the early stages of their relationship. On Mr Wilson’s case, as the relationship progressed, the frequency of their sexual relationship reduced. The communications between the parties demonstrated their sexual relationship was the source of conflict. For example, in August 2017, Mr Wilson complained to Ms Robertson, suggesting she treated him as her “labourer bitch that gets a little bit of sex every now and then”, and later referred to the parties not having had “much sex for a while”.
97The parties’ sexual relationship ceased during periods of separation, which is also corroborated in their communications.
Degree of financial independence or interdependence and any arrangements for financial support
98This issue may be conveniently dealt with together with the following sub-heading because part of the relevant evidence overlaps.
Ownership, use and acquisition of the parties’ property
99Mr Wilson and Ms Robertson kept their finances separate. They did not own any property in joint names. They never shared bank accounts, nor did either party ever give the other access to their accounts or make them a secondary cardholder. They never incurred any joint liabilities. There is no evidence that the parties have ever jointly acquired any item of property, of any material value.
100Each party ran their own business. Mr Wilson was not involved in Ms Robertson’s […] business. Ms Robertson was not involved in Mr Wilson’s [tradesman] business. It is not in dispute that Ms Robertson took steps to assist Mr Wilson in his business, including introducing him to real estate agents for potential work, arranging for her bookkeeper and others to help Mr Wilson to set up his business, and further, she engaged Mr Wilson to conduct work for her, and her family.
101Mr Wilson says Ms Robertson’s use of his trailer and car is the “best example”[37] of the parties’ sharing use of their respective property. Mr Wilson transported items at Ms Robertson’s request, using his trailer and car. Mr Wilson and Ms Robertson used his tools and supplies at the Property B farm, to assist in landscaping. In my view, Mr Wilson overstated these examples. In the context of the parties’ relationship, Mr Wilson assisted Ms Robertson, including using his belongings, and in the same manner, Ms Robertson assisted Mr Wilson, including permitting him and his boys to enjoy her belongings and property. None of these factors elevate the use of such items, beyond what may reasonably be expected of two people in a romantic relationship.
[37] Paragraph 114, Mr Wilson’s affidavit filed 18 November 2020.
102Ms Robertson met the outgoings and costs associated with her properties, at Property A, Property D and the Property B farm, without contribution from Mr Wilson. Mr Wilson met the outgoings and costs of Property C, on his own. Ms Robertson did not make any direct financial contributions towards Mr Wilson’s home. Neither party contributed to the household bills of the other.
103Mr Wilson and Ms Robertson often worked together on the Property B farm, which was something they enjoyed doing together. Mr Wilson conducted work on Ms Robertson’s property, for which he was paid. At some time, the precise date of which I cannot determine, they agreed Mr Wilson could conduct work on Ms Robertson’s properties, which would be deducted against the debt he owed.
104There is a significant controversy about the work Mr Wilson performed, the extent to which he issued invoices to Ms Robertson, the hourly rate at which Mr Wilson was to charge Ms Robertson, and the extent to which that work was either paid or deducted against the amounts Mr Wilson owes to Ms Robertson.
105Much of the focus at trial, was on the nature of the financial assistance Ms Robertson provided to Mr Wilson. Ms Robertson denied supporting Mr Wilson financially. She deposed, and I accept, that she was careful to record the money she advanced to Mr Wilson, consistent with the agreement, that the monies were a loan which Mr Wilson was expected to repay. At no time, did Ms Robertson tell Mr Wilson that the funds were a gift, or that he was not expected to repay the monies she had lent to him.
106Mr Wilson now says “although [we] … kept out (sic) finances separate throughout the relationship, I was financially dependent on [Ms Robertson] for the majority of the relationship. This intwined (sic) our finances as I was reliant on [Ms Robertson] and she was accommodating and provided for me financially”.[38] Mr Wilson’s evidence contradicts both his, and Ms Robertson’s sworn evidence in his previous Family Court proceedings. His evidence is inconsistent with his statements to the Department (to which I have referred). It is also likely to be inconsistent with his stated position to Centrelink, in support of the receipt of sickness benefits. At no time during the parties’ relationship, did Mr Wilson assert that he was financially dependent on Ms Robertson.
[38] Paragraph 97, Mr Wilson’s affidavit filed 18 November 2020.
107The position articulated by Mr Wilson and Ms Robertson during Mr Wilson’s Family Court proceedings, and accepted by the Court, was that Ms Robertson had lent Mr Wilson money, which he was expected to repay. Mr Wilson made subsequent representations to third parties, confirming the personal loan he owed to Ms Robertson. Notably, in Mr Wilson’s signed statements [in] March 2017 and October 2016 to the Department, he confirmed the information he provided was complete, correct and he understood that giving false or misleading evidence was a serious offence.[39]
[39] Annexure B, pages 32 and Annexure C, page 42 of Ms Robertson’s affidavit filed 23 November 2020.
108It is well established that 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 to decline to accept from that party, evidence which contradicts those representations.[40] It is always a matter of discretion, depending on the facts and circumstances of each case.
[40] Elias and Elias (1997) FLC 90-267.
109Mr Wilson’s evidence to the Family Court and his statements to various third parties, are relevant, albeit not decisive. In my view, they are significant. He made representations of fact that he owed money to Ms Robertson. Mr Wilson gained advantage from doing so. Further, Mr Wilson had the benefit of independent legal advice at the time he made statements on oath, both as to the nature of his relationship with Ms Robertson (not being a de facto relationship) and in terms of the personal loan which he owed to her.
110I do not accept Mr Wilson’s evidence that he was unaware of the meaning of a de facto relationship and he had no legal advice about these matters, until after separation. I consider that to be highly unlikely, in circumstances where Mr Wilson was legally represented by solicitors and counsel, during his previous Family Court proceedings, and where he made specific statements categorically denying that he and Ms Robertson were in a de facto relationship.
111Consistent with Mr Wilson’s evidence in the earlier proceedings, is Ms Robertson’s evidence that between 2013 and 2018:
(a)Mr Wilson performed work on the Property B farm, for which he was paid.
(b)Ms Robertson paid cash to Mr Wilson to reimburse him for goods or materials he bought on her behalf. She did not otherwise provide him with cash.
(c)Ms Robertson’s bookkeeper was instructed to record the payments Ms Robertson made to Mr Wilson, as reflected in the schedules she retained, characterising five types of payments: loans for legal fees, loans for living expenses, payments for work conducted by Mr Wilson on Ms Robertson’s investment properties, remuneration for work at the Property B farm and reimbursement for expenses Mr Wilson paid on her behalf.
112Congruent with those findings, was Ms Robertson’s emails to Mr Wilson [in early] March 2016, in which she referred to Mr Wilson either, working at the Property B farm and being paid, or alternatively “deduct[ing] it from the loan account, again your choice. Either way, I will pay you $80 per hour. You will need to invoice me whether its (sic) deducted from the loan account or paid directly. Not because it’s a Tax Deduction for me because its (sic) not but because you need to declare the income”.
113The loan between the parties, and the arrangements for Mr Wilson to repay the debt, were an ongoing source of conflict, as evidenced by their communications. For example:
(a)In August 2017, the parties argued via text message about the debt, with Mr Wilson seeking a spreadsheet of what he owed. The argument escalated, Mr Wilson asserted Ms Robertson saw him as her “labourer bitch”, while Ms Robertson accused Mr Wilson of “never [having] any intentions of paying [her] back” and complained about Mr Wilson’s attitude, lack of appreciation for the things she did for him and “hardly ever” staying at her home. Mr Wilson responded that he was not appreciated, and that he would pay Ms Robertson back, acknowledging he had borrowed money and that he was working to pay it off. The argument culminated in the parties separating for a few weeks.
(b)In September 2017, the parties argued via email as to their arrangement. Mr Wilson said he felt like Ms Robertson’s, “slave come giggalo (sic)”.[41] Ms Robertson said she had “repeatedly” asked Mr Wilson to record his hours spent on jobs he would usually charge for and she would then deduct it from his debt to her.[42] Soon after, Mr Wilson said he began compiling a list of all the jobs he had undertaken for Ms Robertson. He then wrote to her, “… I have never kept a tally of hours as I thought I was doing it for love and never knew all this time I was just working for you to pay of (sic) what I owe you”.[43] The messages deteriorated, ending with Ms Robertson writing “I’m just a fucking ATM to you”. Mr Wilson responded that if their relationship was over, that Ms Robertson could take the hire of his trailer off what he owed.
[41] Paragraph 399.2, Mr Wilson’s affidavit filed 18 November 2020.
[42] Paragraph 397.2, Mr Wilson’s affidavit filed 18 November 2020.
[43] Paragraph 401.1, Mr Wilson’s affidavit filed 18 November 2020.
114The arguments between the parties seemed to centre around:
(a) The work Mr Wilson undertook, for example:
•While the parties agree that Ms Robertson has paid to Mr Wilson $35,500, Mr Wilson says that Ms Robertson did not pay him for the majority of the work he undertook.[44] He says he did $228,121 worth of work, at a rate of $80 per hour. Mr Wilson included a list of some 134 tasks in his trial affidavit, outlining the work he had undertaken at the Property B farm, Property A and Property D.[45] He says this list is not exhaustive, but was all he could evidence or recall. He further lists regular, smaller tasks that he undertook including, gardening, general maintenance and handyman tasks.[46] However, Mr Wilson also deposed “I worked so hard on the properties, it was my way of contributing to the relationship”.[47]
[44] Paragraph 27, Mr Wilson’s affidavit filed 18 November 2020.
[45] Paragraph 176, Mr Wilson’s affidavit filed 18 November 2020.
[46] Paragraph 177, Mr Wilson’s affidavit filed 18 November 2020.
[47] Paragraph 319, Mr Wilson’s affidavit filed 18 November 2020.
•Ms Robertson disputes the accuracy of Mr Wilson’s estimate of the time he now claims to have spent on those tasks, in circumstances where he failed to issue invoices despite her repeated requests, and where Mr Wilson acknowledges he kept no detailed diary or other documentation to record the work he performed.
•[In late] January 2018, Ms Robertson wrote, “you can’t get out of bed early in the morning and keep working for the full day … how much fucking work did you even get done in the whole month of January?”[48]
[48] Paragraph 410.3, Mr Wilson’s affidavit filed 18 November 2020.
•In April 2019, the parties argued. Mr Wilson contended he had done more work than he had invoiced for, while Ms Robertson disagreed about the number of hours Mr Wilson had worked, the quality of the work, and asked for Mr Wilson’s start and finish times.[49]
[49] Paragraph 448, Mr Wilson’s affidavit filed 18 November 2020.
(b)Which jobs Mr Wilson should invoice for and what invoices were provided:
•Mr Wilson says, on occasion he would send an invoice and Ms Robertson “complained telling me I shouldn’t have invoiced her at all”.[50]
[50] Paragraph 341, Mr Wilson’s affidavit filed 18 November 2020.
•Mr Wilson says whenever he asked Ms Robertson which jobs he should invoice for, she would say ‘large jobs’ and the little jobs were just things he did for the relationship.[51]
[51] Paragraph 342, Mr Wilson’s affidavit filed 18 November 2020.
•By 2018, the money Mr Wilson owed to Ms Robertson and the work he was undertaking on the properties had become the source of frequent conflict. Ms Robertson reiterated that she had asked Mr Wilson for his timesheets, but he had refused. She then asked Mr Wilson to detail any hours unaccounted for on her spreadsheet and asked him what he considered a fair hourly rate would be. She said, “[t]oo bad you ignored me over and over again about keeping track of your time”.[52]
[52] Paragraph 401.3, Mr Wilson’s affidavit filed 18 November 2020.
(c)What hourly rate Mr Wilson was to charge:
•Mr Wilson says Ms Robertson insisted he invoiced her for between $30 and $40 per hour.[53] He says on a few occasions he invoiced Ms Robertson at $80 per hour, however she complained that he overcharged her.[54]
•[In early] March 2016, Ms Robertson emailed Mr Wilson saying, “I do need work done at the Farm and I’m happy to either pay you for it or deduct it from the loan account, again your choice. Either way I will pay you $80 per hour. You will need to invoice me whether its (sic) deducted from the loan account or paid directly …”[55]
•In August 2017, Ms Robertson and Mr Wilson exchanged SMS messages. Ms Robertson wrote, “When I take it off the Debt it’s at $80 per hour net”.[56]
•Mr Wilson says in April 2018, Ms Robertson started an argument when he invoiced her at $80 per hour and queried why she was being invoiced at such a high rate.[57]
•In June 2018, Mr Wilson undertook some work with his cousin, Mr E, for Ms Robertson. Mr Wilson says he queried only being paid $30 per hour. He says Ms Robertson responded with, “I’ve been paying you $30 cash for some time? More if it’s coming off legal fees owed or invoices (sic) work, your choice”.[58]
[53] Paragraph 340, Mr Wilson’s affidavit filed 18 November 2020.
[54] Paragraph 342, Mr Wilson’s affidavit filed 18 November 2020.
[55] Paragraph 371, Mr Wilson’s affidavit filed 18 November 2020.
[56] Paragraph 397.2, Mr Wilson’s affidavit filed 18 November 2020.
[57] Paragraph 417, Mr Wilson’s affidavit filed 18 November 2020.
[58] Paragraph 438, Mr Wilson’s affidavit filed 18 November 2020.
115The arguments continued until the parties separated.
116While there is a significant dispute between the parties about the precise terms of the financial agreement between them, the work Mr Wilson conducted on Ms Robertson's properties, and whether that has been deducted from the amount he owes, I am not satisfied those matters require determination. The question for the Court, is whether the parties were in a de facto relationship.
117Taking Mr Wilson’s case at its highest and accepting that he has conducted work on Ms Robertson's properties, for which he has not been paid, and which have not been deducted from the debt he owes to Ms Robertson, I am not satisfied these matters support the finding as to the existence of a “marriage-like” relationship. There are many relationships between individuals, which involve financial transactions. The fact Ms Robertson lent money to Mr Wilson, and agreed he was to repay her, or conduct work to offset the amounts he owed, does not support the existence of a de facto relationship.
118I am not satisfied that Mr Wilson was financially dependent on Ms Robertson. Ms Robertson was careful and deliberate in her interactions with Mr Wilson, to maintain her financial independence. From the start of their relationship, she went to some lengths to record the funds she lent to Mr Wilson, either in terms of funds paid directly to him, or on his behalf. Ms Robertson continued to record monies she lent to Mr Wilson, on the basis they were expected to be repaid, which Mr Wilson repeatedly acknowledged up until separation. Ms Robertson did not financially support Mr Wilson, nor did Mr Wilson ever suggest during their relationship, that she did.
119Ms Robertson never paid Mr Wilson’s expenses or bills. When Ms Robertson advanced funds to Mr Wilson, they were documented and agreed to be repaid. Ms Robertson was financially generous towards Mr Wilson, which enabled him to join her on holidays and activities, which he was unable to afford. Ms Robertson’s largesse towards Mr Wilson, does not constitute financial dependence, or interdependence. Mr Wilson was simply the beneficiary of Ms Robertson’s generosity when their relationship was going well.
120Neither party had access to the other party’s accounts. They had no joint liabilities, apart from the Loan Agreement. Ms Robertson has not guaranteed any loan for Mr Wilson or vice versa. Ms Robertson and Mr Wilson were careful to clearly delineate the nature of the financial relationship between them.
121There is a fierce debate as to the amount, if any, which Mr Wilson owes to Ms Robertson. Mr Wilson says the money which Ms Robertson claims includes funds which she provided to him as a gift, including the trip to State A and spending money. He says Ms Robertson has not properly taken into account all of the work he has completed, and had she done so, he would not have any debt. Ms Robertson disputes Mr Wilson’s evidence. Each party provided highly conflicting evidence as to these matters, making it difficult for the Court to make any definitive findings of fact.
122In my view, it is unnecessary and indeed it would be unsafe for the Court to try and determine these matters. For the reasons that follow, I am not satisfied it is essential for present purposes, to make findings as to these matters, which will ultimately be considered by [another jurisdiction].
Degree of mutual commitment to a shared life
123It is important to note the inclusion of the adjective “mutual” in this indicator. I accept Mr Wilson and Ms Robertson considered they were a couple at times when their relationship was going well. As acknowledged, neither party described, or indeed considered themselves to be in a de facto relationship or held themselves out as such. The relationship was punctuated by regular separations and reconciliations and featured high levels of conflict.
124The evidence would suggest that Mr Wilson was to some extent, committed to a shared life, in the sense that he was attracted to Ms Robertson, he was impressed by her financial acumen and success, and he enjoyed a lifestyle with Ms Robertson, which he would otherwise have been unable to afford. Similarly, Mr Wilson’s children also benefited and enjoyed that lifestyle.
125I am satisfied Ms Robertson also had hopes that the parties’ relationship would be long-lasting, and they would make each other happy. That was consistent with some of her messages to Mr Wilson referring to their future, together with the parties’ efforts to coincide the care arrangements for their respective children. That matches the Court’s experience, which is that people do not enter into personal relationships, with the hope or expectation they will fail.
126I accept Ms Robertson’s evidence that despite her hopes that the relationship would develop, as time progressed, she realised that was not the case. The relationship was of a more casual, romantic nature, which waxed and waned from time to time.
127Mr Wilson claimed the parties had joked about travelling to [City D] and getting married on his birthday. I am not satisfied that Ms Robertson ever seriously contemplated marrying Mr Wilson. I accept Ms Robertson’s evidence that she had no intention of remarrying, given her experiences following the breakdown of her previous marriage.
128Mr Wilson claimed Ms Robertson gave him a ring as a gift, which he wore on his ring finger suggesting that was indicative of their commitment to one another. Contrary to his evidence, Mr Wilson’s own photographs revealed he wore the ring on his right hand. There was no suggestion that Mr Wilson bought a ring for Ms Robertson, or that either party held themselves out to be engaged.
129It does not appear Mr Wilson dated any other people. Ms Robertson had a sexual relationship with another person when the parties separated in April 2014.
130I accept Mr Wilson and Ms Robertson jointly celebrated birthdays from time to time. Ms Robertson hosted Mr Wilson’s birthday celebrations, including bonfires at the Property B farm. Mr Wilson attended Ms Robertson’s 50th birthday party. At times, they also attended events with their respective families. All of that is consistent with their relationship as boyfriend/girlfriend.
131Having reflected on the evidence, I am not satisfied Mr Wilson has established, to the necessary standard, that Ms Robertson demonstrated any commitment to a shared life, for the following reasons:
•Firstly, Mr Wilson and Ms Robertson’s relationship was not stable, or permanent. The communications highlight the conflict and frequent disputes between the parties. Curiously, there were limited communications in which the parties made any declarations of love or referred to their future plans together. The vast majority of the communications were devoid of any affection.
•Secondly, while Ms Robertson referred to working towards retirement with Mr Wilson,[59] I accept her explanation she had hoped the relationship would develop, however, it never eventuated. To the contrary, it continued to be characterised by regular disputes, disagreements and separations.
•Thirdly, while the parties enjoyed one another’s company, and spent time together with their respective families, they also maintained separate lives, spending significant periods apart. Ms Robertson socialised without Mr Wilson. She went on holidays without him.
•Fourthly, at no time during the parties’ relationship, did they take any steps to move towards living together or blending their families. Mr Wilson and Ms Robertson’s evidence during his previous proceedings, indicated they had no intention to do so. Since those proceedings, no steps were taken by either party to extend their property, to accommodate their blended families.
•Fifthly, I do not accept that Ms Robertson’s communications with Mr Wilson, for example, referring to having bought “us” a quad bike, or asking when he was coming “home”, is indicative of a mutual commitment to a shared life. They were simply colloquial descriptions.
•Finally, there is a dispute between the parties in terms of what they each planned for the future, and what that would look like. I accept Ms Robertson never intended to move to the Property B farm permanently, in her retirement, or that she had any joint plans with Mr Wilson about their long-term future.
The reputation, and public aspects, of the relationship between Mr Wilson and Ms Robertson
[59] Exhibit 34, the email exchange between Mr Wilson and Ms Robertson dated 8 to 9 September 2017.
132I accept Ms Robertson and Mr Wilson presented as a couple, to their friends and family, at times. On occasions, they were openly affectionate with one another. They spent time together on special occasions, jointly celebrating their birthdays, birthdays of their children and other special occasions.
133Each of Mr Wilson’s witnesses described the parties’ relationship as appearing serious, and marriage-like, while each of Ms Robertson’s witnesses said it was no more than a casual romantic relationship. Their respective evidence I consider was given honestly and genuinely, but ultimately was of little assistance.
134At trial, there was significant focus on whether Mr Wilson was ever a member of the Carriage Club and if so, whether that was in his capacity as Ms Robertson’s partner. Having now had the opportunity to reflect on the evidence, it is clear that:
(a)Ms Robertson has been a member of the Club for some time. In the 2016/2017 financial year, Ms Robertson made an application to renew her family membership, which included Mr Wilson.[60] It appears Mr Wilson signed forms, in support of joining the Club at that time.
(b)In the following year, Mr Wilson was not a member of the Club.[61]
(c)In the 2019/2020 year, Ms Robertson made a further application for a family membership,[62] in which Mr Wilson’s name was included in the children’s section. The Club advised the form had been incorrectly completed. Mr Wilson and Ms Robertson then argued about him joining the Club and Mr Wilson told Ms Robertson he was not prepared to be part of a family membership, on the basis they were not in a de facto relationship.[63]
(d)Despite Mr Wilson refusing to sign the forms, it appeared that Ms Robertson submitted the application, including Mr Wilson’s details. It is unclear whether Mr Wilson actually then became a member in that year.
[60] Exhibit 1, [XXX] – 14, pages 145 - 146.
[61] Exhibit 14, 2017/2018 renewal form.
[62] Exhibit 21.
[63] Exhibit 1, [XXX] – 15, pages 147 - 148 the emails exchanged between Mr Wilson and Ms Robertson and Ms Robertson and [Ms I] regarding the application dated 6 - 8 March 2019.
135While there was some controversy as to whether Mr Wilson ever became a member and if so, in what capacity, in my view, little turns on it.
136There was no evidence that either party held themselves out to be in a relationship to relevant government agencies. For example: Mr Wilson and Ms Robertson each declared they were single and neither party listed the other party as their de facto spouse in their income tax returns. Mr Wilson did not disclose that he was in a de facto relationship when he applied to Centrelink for sickness benefits.
137In Mr Wilson’s communications with the Department, he repeatedly stated that he and Ms Robertson were not in a de facto relationship, to which I have referred. I accept Ms Robertson assisted Mr Wilson in preparing those documents. That does not detract from the fact Mr Wilson signed the documents, confirming the accuracy of the contents.
138The fact that certain statements or representations are made to lenders or government authorities does not elevate the same to a higher status, and the ultimate decision as to whether there is a de facto relationship at any given time is a matter for the Court and not the parties.[64] A party’s perception of the nature of their relationship – as communicated to such third parties – is relevant but not determinative.[65]
[64] Sinclair & Whittaker (2013) FLC 93-551, 87,395.
[65] Ibid.
139In this case, and having regard to the evidence as a whole, I am satisfied that Mr Wilson’s representations to the Department and to the Family Court, that he was not in a de facto relationship, accurately reflected how he perceived his relationship with Ms Robertson at the time, notwithstanding that he now asserts that to be untrue.
140I do not accept that Mr Wilson was ignorant about these matters until recently. I consider that to be implausible, in circumstances where he deposed on oath, that he was not in such a relationship, with the benefit of independent legal advice at the time.
Whether they care for and support children
141Ms Robertson’s children lived with her and spent time with their father, in week one from the conclusion of school on Thursday until the commencement of school on Friday and in week two from the conclusion of school on Thursday until the commencement of school on Monday. I have already referred to the arrangements for Mr Wilson’s children.
142I am satisfied that Mr Wilson cared for and supported Ms Robertson’s children, despite her denials. In particular, I am satisfied that:
(a)Mr Wilson stayed at Property D with the au pair in September 2014 to assist in the care of Ms Robertson’s children, while Ms Robertson was overseas;
(b)For periods of time, after Mr Wilson’s surgery in 2014, he would assist Ms Robertson in terms of taking the girls to and from school, their [extra-curricular activities], as well as dental and medical appointments;[66]
(c)He helped the girls with their homework, at Ms Robertson’s request;[67] and
(d)He accompanied Ms Robertson to watch the girls’ sporting activities. When the girls had clashing sporting commitments, Mr Wilson would assist Ms Robertson by taking one or two of the girls to their game.
[66] Exhibits 25–26, 28–32.
[67] Exhibit 30.
143Ms Robertson acknowledged Mr Wilson’s efforts with her children in her sworn affidavit in his previous proceedings. Ms Robertson accepted that her girls had an excellent relationship with Mr Wilson.[68] I consider Ms Robertson minimised these matters, describing it as babysitting. That description was not accurate and was not consistent with her communications with Mr Wilson, in which she referred to the girls loving him “like a father”[69] and Child E’s birthday card to Mr Wilson in 2018.[70]
[68] Exhibit 1, [XXX] - 9, Ms Robertson’s email to Mr Wilson dated 2 November 2014.
[69] Exhibit 1, [XXX]] - 9 Ms Robertson’s email to Mr Wilson dated 2 November 2014.
[70] Exhibit 1, [XXX]] - 10.
144I also accept Ms Robertson assisted in the care and support of Mr Wilson’s boys, as corroborated by her affidavit filed in his previous proceedings. When Child A underwent [surgery] in [late] 2015, Ms Robertson spoke to him about her experiences. Ms Robertson also assisted on the weekends with the boys’ sporting events and watched their sport, at times, with Child E.
145The evidence suggests the parties’ respective children formed a good relationship, after some initial difficulties; they enjoyed spending time together, including at the Property B farm and on holidays, including to City B, [Island A], and State A. Mr Wilson sought, with Ms Robertson's support, arrangements to enable the boys to be in his care, to coincide when Ms Robertson’s girls were in her care.[71]
DISCUSSION AND CONCLUSIONS
[71] Exhibit 35, Family Court Orders between Mr Wilson and Ms Wilson dated 1 July 2016, which provided that Mr Wilson’s children’s time coincide with the weekends that Ms Robertson’s children were in her care.
146Mr Wilson and Ms Robertson's relationship was unusual. Mr Wilson concedes it was not a “conventional ‘marriage-like’ relationship”.[72] Marriage-like relationships can take many shapes and forms, as indeed do many marriages. There is no single template for a marriage, or a marriage-like relationship.
[72] Paragraph 68, Mr Wilson’s affidavit filed 18 November 2020.
147Some features of the relationship between Mr Wilson and Ms Robertson, may be considered consistent with the concept of a de facto relationship, including the parties’ sexual relationship, their public presentation as a couple, and the provision of emotional and practical support to one another throughout their relationship, including in the care of one another’s children. However, there are many other features which are not consistent with the concept of a marriage-like relationship.
148Having had the opportunity to reflect carefully on the evidence in its totality, I am not satisfied that Ms Robertson and Mr Wilson were in a de facto relationship. I do not consider they had a marriage-like relationship, for the following reasons:
Firstly, the parties never shared a common residence, nor did they ever live together. They spent time at each other’s homes and at the Property B farm. They shared holidays together, both with and without their respective children. The evidence does not support any precise findings as to the periods they spent together. Their relationship was that of a boyfriend/girlfriend. There is a significant gap between a relationship of that nature, and one that is marriage-like.
Secondly, the parties’ relationship was conflictual, and at times, openly combative and hostile, leading to multiple separation and reconciliations. The available evidence did not support precise findings as to the duration of the relationship, which is best described as on again, off again. Mr Wilson and Ms Robertson’s relationship could not be considered permanent, stable or featuring any of the hallmarks of a committed, sustained relationship. The parties’ communications overwhelmingly displayed an absence of mutual love and respect, as would be expected in a marriage-like relationship.
Thirdly, I am not satisfied that Mr Wilson was financially dependent on Ms Robertson. Ms Robertson was financially generous to Mr Wilson and his children. She went to pains to ensure that the parties’ financial circumstances were never intermingled. She gave clear evidence about those arrangements in 2016, together with the reasons why. Ms Robertson’s explanation was reasonable and plausible. Further, Ms Robertson’s documentation of the financial dealings between the parties, are consistent with her position, previously accepted by Mr Wilson, that the funds were a loan which he was expected to repay.
Fourthly, Ms Robertson and Mr Wilson maintained separate finances throughout their relationship. They never shared bank accounts, acquired any joint property, nor did they contribute financially to one another’s households. They never created any joint financial liabilities, such as arranging a joint credit card. They retained separate financial affairs. While Mr Wilson enjoyed use of Ms Robertson’s home and farm when they were together, and Ms Robertson similarly enjoyed use of Mr Wilson’s trailer, tools and landscaping supplies, none of those factors are, in my mind, beyond what may reasonably be expected of two people in a romantic relationship.
Fifthly, I am not satisfied the parties had a commitment to a shared life, that characterises marriage. They made no plans to combine their families and live in the one home. I find they never contemplated marriage. While Ms Robertson hoped the relationship would be long‑lasting, and made reference to a future with Mr Wilson, I accept no such commitments were ever made, or acted upon. There was clearly no mutual view as to their respective future lives, as illustrated by their evidence. I accept Mr Wilson may have been committed to a shared life with Ms Robertson. That commitment was not shared by Ms Robertson.
Sixthly, Ms Robertson and Mr Wilson consistently and repeatedly asserted they were not in a de facto relationship. I acknowledge their description of the relationship does not divert from the finding of fact which the Court is required to make. However, their perception of their relationship is relevant. In 2016, with the benefit of independent legal advice, Mr Wilson deposed on oath that he and Ms Robertson were not in a de facto relationship, that he was not financially dependent on Ms Robertson and that he owed money to Ms Robertson, which he was required to repay. Mr Wilson made subsequent representations of fact in those terms, from which he gained advantage. While such statements are not determinative, they are also relevant. In my view, Mr Wilson’s representations were consistent with his view, and understanding, that he and Ms Robertson were not in a de facto relationship at those times. I am satisfied, that the relationship between Ms Robertson and Mr Wilson was never marriage like.
Finally, Mr Wilson’s case is that he has made significant contributions towards Ms Robertson’s properties, which she has failed to properly acknowledge, remunerate him for or deduct the value of the work he performed against the debt he owes to her. I cannot conclude whether Mr Wilson’s beliefs are justifiable or not. Taking Mr Wilson’s case at its highest, and assuming that Ms Robertson has taken advantage of Mr Wilson, and she is now pursuing him for funds which he does not owe, invites the question as to whether that type of behaviour is indicative of a marriage-like relationship? The answer must be no. Marriage-like relationships are based upon mutual love and respect, not the financial exploitation of one party by another.
149As a consequence of my findings that Mr Wilson and Ms Robertson were not in a de facto relationship, it is unnecessary to consider whether Mr Wilson made substantial contributions and whether there would be a serious injustice if the Court were not to make an order. Accordingly, Mr Wilson’s application will be dismissed.
ORDERS
1.The Applicant’s Form 1 Application filed 16 July 2020 be dismissed for want of jurisdiction.
2.All documents produced by named persons pursuant to subpoena be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from this order.
3.In relation to material tendered as an exhibit into evidence in these proceedings:
(a)all parties must collect the exhibits tendered by them (“their exhibits”), from the Chambers of the Honourable Justice Tyson, at least 28 days, and no later than 42 days, from today’s date;
(b)all parties must contact the Chambers of Honourable Justice Tyson to arrange the collection of their exhibits; and
(c)in default of compliance with subparagraph (a), all material tendered as an exhibit, save and except for material produced pursuant to subpoena, will be destroyed by the court without notice to the parties.
4.In the event of an appeal being lodged prior to the expiration period of 42 days, paragraphs 2 and 3 above do not apply.
5.All outstanding proceedings otherwise be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
CD
Secretary
9 JULY 2021
16
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