BROWNLESS & WARREN

[2018] FamCA 101

FAMILY COURT OF AUSTRALIA

BROWNLESS & WARREN [2018] FamCA 101

FAMILY LAW – DE FACTO RELATIONSHIP – indicia of relationship – whether de facto relationship existed – when de facto relationship existed – declaration of de facto relationship.

Family Law Act 1975 (Cth) ss 4AA, 90RD, 90RG, 90SM
Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth)

Cadman & Hallett [2013] Fam CA 819 Jonah v White (2012) 48 Fam LR 562 Hibberson v George (1989) 12 Fam LR 725 S v B (No 2) (2004) 32 Fam LR 429
APPLICANT:	Mr Brownless

RESPONDENT: Ms Warren

FILE NUMBER: SYC 5430 of 2015

DATE DELIVERED: 27 February 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Gill J

HEARING DATE: 19-22 February 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Levet

SOLICITOR FOR THE APPLICANT: Kinghan & Associates

COUNSEL FOR THE RESPONDENT: Mr Campton, SC

SOLICITOR FOR THE RESPONDENT: Blackman Legal Pty Ltd

Orders

1. The initiating application filed by Mr Brownless on 18 August 2015 is dismissed for lack of jurisdiction.

2. The order of Watts J made 27 March 2017 in relation to the Suburb B property is discharged, and the application in a case filed by Mr Brownless on 12 December 2016 is dismissed.

3. The application in a case filed by Mr Brownless on 12 July 2017 is dismissed. 

4. In the event that a party seeks costs in this matter, that party is to file and serve within 14 days:

   (a)       A minute of the order sought;

   (b)       Any further evidential material to be relied upon, including a financial statement

5. In the event that such costs are resisted, that party is to file and serve any material relied upon including a financial statement within a further 14 days.

6. On the filing of the material in Order 4 a further date will be allocated for the determination of costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Brownless & Warren has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5430 of 2015

Mr Brownless

Applicant

And

Ms Warren

Respondent

REASONS FOR JUDGMENT

Introduction

1. An initiating application was filed by Mr Brownless on 18 August 2015 seeking declarations pursuant to s 90RD of the Family Law Act 1975 that a de facto relationship existed between himself and the respondent, Ms Warren, and further, a declaration that the relationship existed from approximately late 1992 until mid-December 2014.  While he also sought orders pursuant to s 90SM of the Act to alter property interests, the present hearing dealt only with the declaratory relief. 

2. By her response, Ms Warren seeks that the initiating application be dismissed for want of jurisdiction.  By her orders sought she seeks a declaration that a de facto relationship never existed between the parties. 

3. During the proceedings it was raised with the parties that the evidence may not support the declarations sought by either of them.  That is, there may be a declaration as to de facto relationship, but not for the whole duration sought by the applicant, nor, contrary to the position of the respondent, a declaration that there was no de facto relationship.  The parties were given the opportunity to address on this issue.

4. As the proceedings continued the respondent’s position was, primarily, that a declaration should be made that there was no de facto relationship but, in the event that a declaration as to de facto relationship issues, that dependent upon the time periods of that relationship, it would not permit this Court to exercise jurisdiction under s 90SM.  Specifically, it is said that if a de facto relationship is found, the de facto relationship ended prior to the referral of powers by NSW to the Commonwealth in relation to de facto property on 1 March 2009.

5. This is a significant matter as the transitional provisions dealing with the introduction of the powers to deal with de facto property, through the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth), exclude de facto relationships that ended prior to the date of the referral of powers from the relevant jurisdiction, here New South Wales, as at 1 March 2009:

   86      De facto relationships that broke down before commencement

(1)      Subject to item 86A, Parts VIIIAB and VIIIB, and subsection 114(2A), of the new Act do not apply in relation to a de facto relationship that broke down before commencement.

Note 1:         After commencement, State/Territory law will apply to any proceedings etc. to enforce, discharge, suspend, revive or vary an order or injunction in force at commencement in relation to the maintenance, or the distribution of property, of the parties to the de facto relationship arising out of the breakdown of the de facto relationship.

Note 2:         After commencement, State/Territory law will continue to apply to any proceedings pending at commencement for an order or injunction in relation to the maintenance, or the distribution of property, of the parties to the de facto relationship arising out of the breakdown of the de facto relationship.

Note 3:         After commencement, State/Territory law will continue to apply if the parties to the de facto relationship have made, or make, an agreement about financial matters arising out of the breakdown of the de facto relationship.

Note 4:         Section 90UE of the new Act will not apply in relation to an agreement made, by the parties to the de facto relationship under a non‑referring State de facto financial law, about financial matters arising out of the breakdown of the de facto relationship. Such an agreement will not be affected by the new Act.

(2)      To avoid doubt, section 90RC of the new Act does not exclude the operation of any State or Territory law in relation to the de facto relationship.

1. Contrary to the position of the parties, as s 90RD comprises part of Part VIIIAB, declarations are not available for de facto relationships concluding prior to 1 March 2009. However, the court has jurisdiction to determine jurisdiction, which may in turn involve findings in relation to the existence of a de facto relationship prior to the relevant date in order to determine whether one was in existence after the relevant date.

2. The determination of whether or not there is a de facto relationship is reliant upon the definition contained at s 4AA of the Act.  The relevant portions are set out below.

Section 4AA De facto relationships

Meaning of de facto relationship

(1)A person is in a de facto relationship with another person if:

(a)     the persons are not legally married to each other; and

(b)     the persons are not related by family (see subsection (6)); and

(c)     having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

Paragraph (c) has effect subject to subsection (5).

Working out if persons have a relationship as a couple

(2)    Those circumstances may include any or all of the following:

(a)     the duration of the relationship;

(b)     the nature and extent of their common residence;

(c)     whether a sexual relationship exists;

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

(e)     the ownership, use and acquisition of their property;

(f)     the degree of mutual commitment to a shared life;

(g)     whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;

(h)     the care and support of children;

(i)     the reputation and public aspects of the relationship.

(3)No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.

(4)A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.

1. It is necessary to consider the individual characteristics of the relationship between the parties and at what points during the relevant period various characteristics came into, or remained in existence. 

2. In Jonah v White (2012) 48 Fam LR 562 the Full Court approved the analysis at first instance of Murphy J, agreeing that “the proper focus of … determination was the nature and quality of the asserted relationship.” That proper focus was expanded by Murphy J as follows:

   [60] In my opinion, the key to that definition [de facto relationship] is the manifestation of a relationship where “the parties have so merged their lives that they were, for all practical purposes, 'living together' as a couple on a genuine domestic basis.” It is the manifestation of “coupledom”, which involves the merger of two lives as just described, that is the core of a de facto relationship as defined and to which each of the statutory factors (and others that might apply to a particular relationship) are directed. 

3. And further:

   [66] 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.”

4. In the event that it is found that the parties entered into a de facto relationship, this case also, for the reasons identified above, involves a consideration of the period, or periods of time it was in existence.  This matter was dealt with by Rees J in Cadman & Hallett [2013] Fam CA 819.  There her Honour surveyed the law relating to the breakdown of marriage and in relation to the breakdown of de facto relationships.  Understandably, there were differences expressed in relation to the ending of de jure relationships (marriage) and de facto relationships which were expressed by Mahoney J in Hibberson v George (1989) 12 Fam LR 725 at 740 as deriving their essence “not in law, but in a de facto situation.” That situation was in existence while, as expressed in S v B (No 2) (2004) 32 Fam LR 429 by Dutney J, there was “the required degree of mutuality” which was brought to an end when one party no longer wished to live in that mutuality but to live apart, regardless of whether it was communicated to the other party.

5. That is, the end of intention on the part of one of the parties equated to the end of the de facto relationship.  Communication is not a necessary ingredient, although it may be significant in an evidential sense.  In contrast, as was identified by Rees J, the ending of mutual intention is insufficient to mark the breakdown of the marriage relationship.  The breakdown of the marriage relationship requires communication.

6. The further matter to be observed in dealing with the currency of a de facto relationship is that, unlike the case of the ending of a marriage relationship, the onus is on the party seeking to establish the existence of the relationship at any given point.  Dutney J emphasised this distinction in S v B (No 2):

   [49] In this regard there is a difference between a marriage and a de facto relationship. In a marriage, the parties remain married and are presumed to be living as a “couple” unless the party wishing to end the relationship proves a separation for the statutory period. In a de facto situation it is the party asserting the relationship that must prove cohabitation of the required quality. In In the Marriage of Pavey, on which the respondent relied, the Full Court of the Family Court in dealing with what constitutes “separation” between two parties to a marriage who continue to reside in the same residence said at ALR 265;   Fam LR 11,364  ; FLC 75,213-14: 

   ... In such cases, without a full explanation of the circumstances, there is an inherent unlikelihood that the marriage is broken down, for the common residence suggests continuing cohabitation. Such cases therefor require evidence that goes beyond inexact proofs, indefinite testimony and indirect inferences. The party or parties alleging separation must satisfy the court about this by explaining why the parties continued to live under the one roof, and by showing that there has been a change in their relationship, gradual or sudden, constituting a separation. 

   [50] The reverse applies in the case of a de facto relationship in the sense that the party asserting the continuing relationship must prove the positive aspects of the relationship rather than the party asserting separation being required to prove the negatives. 

7. Accordingly, the onus rests upon the applicant to establish the existence of the de facto relationship at any given time.  If the onus is not discharged in relation to a period after the referral of powers on 1 March 2009, there will be no jurisdiction to either make declarations, or for the division of property pursuant to s 90SM.

Documents relied upon

1. The parties relied upon the following material.

Applicant

a)Initiating Application filed 18 August 2015; and

b)Affidavit of the husband filed 10 April 2017.

Respondent

a)Response to Initiating Application filed 28 October 2015;

b)Affidavit of the wife filed 13 September 2017;

c)Affidavit of Ms C filed 13 September 2017;

d)Affidavit of Ms D filed 13 September 2017; and

e)Affidavit of Ms E filed 15 September 2017.

Agreed Facts

1. The respondent’s Summary of Argument Document dated 9 February 2018 conceded a number of factual matters or identified them as undisputed.

2. Firstly, the applicant occupied the respondent’s unencumbered property at F Street, Suburb B from late 1992 (at or about the time the mortgagee took possession of the applicant’s Suburb G property) until he vacated the Suburb B property in January 2017.

3. Secondly, for the period the applicant occupied the respondent’s property, each of the applicant and the respondent were ordinarily resident in a participating jurisdiction for the purposes of s 90RG of the Family Law Act.

4. Thirdly, the applicant worked in a professional occupational in NSW until at least 1998, and currently has qualifications as, and works in an allied field.

5. Fourthly, the respondent has been in receipt of an age pension since 2003.

6. Fifthly, the respondent vacated her own property in February 2015.  She did not return to reside there while the applicant was in occupation.  She sold the property in June 2017.

The conduct of the relationship

1. It was uncontroversial that the parties met in approximately 1990.  The applicant was working for the respondent in his professional capacity. 

2. The parties began to socialise together.  The applicant attended some family events with the respondent, specifically her daughter Ms C’s 18^th birthday dinner and her daughter’s Ms D’s 21^st birthday, both occurring early in 1992.  At Annexure E of his affidavit the applicant attached a photograph of himself with the respondent, Ms C and Ms D at Ms C’s 18^th birthday.  While he asserted that this was a dinner that occurred at a much later date (2005), I accept the evidence of Ms C that it was her 18^th birthday function.  On the applicant’s case, it was evidence of a dinner occurring when Ms C would have been in her early to mid-thirties.  This was clearly not the case and Ms C’s evidence that the clothing worn by her was clothing that she wore as an 18 year old is to be accepted. Correspondingly this did not evidence a later public interaction with the family. The applicant’s account of this photograph is illustrative of his unreliability as to dates, which will be discussed later.

3. Towards the end of 1992 the parties agree that the applicant moved into the respondent’s home, where she then lived with Ms C and Ms D, and, I infer, another daughter, Ms H.  The respondent’s account was that the applicant had nowhere to live and that she felt sorry for him. 

4. The respondent’s account of the applicant’s moving into the home involved him attending the home late one evening, following work, knocking on the front door and letting himself in.  At that time, the respondent says that she was in bed and the applicant came up to her room and entered the room.  Initially her evidence was that she was asleep when he came into the bedroom.  He asked if she had some videos to watch and from that evening forward commenced to sleep in her single bed with her.  This, she said, occurred without any discussion between them as to what the sleeping arrangements would be.  On this first occasion she said that she only vaguely knew the applicant and, contrary to the evidence of the applicant, they had not commenced a sexual relationship by that time.  She accepted that, on her account, a man that she barely knew let himself into the home, came up the stairs into her bedroom and got into her bed with her. 

5. This account of the surprise arrival of the applicant was inconsistent with the evidence given by Ms C who stated that there had been discussion about his coming to stay at the house in advance of his visit.  By the time of his arrival steps had been taken to have his property from his former home moved into the respondent’s home (he losing his previous home due to a mortgagor taking possession of the home). 

6. The respondent’s evidence was that he shared the bed because there was no other option in the house. Initially she said that she could not recall the nature of the lounges in the house (as providing a potential alternative to her bed) but shortly after gave a detailed description of the lounge.  Although she said that it was inadequate for the applicant to have slept on, Ms D’s evidence was that previously he had slept on the lounge following one of the birthday functions. Ms C’s evidence was that there was another room in the house that the respondent had previously set up for others to stay in, although nothing really turns on this.

7. I am unable to accept the odd account given by the respondent as to the start of the applicant living at the home.  It is at odds with the applicant’s account, with Ms C’s account and with common sense.  At the time of moving in the relationship was not as described by the respondent, but was of sufficient intimacy as to mean that they immediately started to share a single bed.

8. The respondent’s account undermines her credibility in relation to the nature of the relationship.

9. The respondent accepts that at around the time that they starting sharing a bed a sexual relationship commenced between them.  She says that the sexual relationship ended after two to three weeks when she unequivocally told him that there would be no more sexual relations.  His evidence was that the sexual relationship continued until the respondent moved out of the bedroom into another room.  He says that this occurred in 2012. The applicant alleges that the sexual relations then continued on an ad-hoc basis. 

10. After the point at which the respondent says the sexual relationship ended, she accepts that the parties continued to occupy the same single bed.  Further, shortly after the point at which she says she communicated there would be no sexual relationship, she arranged the purchase of a double bed to replace the single bed, on the basis that the single bed was not large enough for the two of them.

11. On the issue of the sexual relationship, Ms C gave evidence that her bedroom at that time was adjacent to the bedroom of the respondent.  She said that the walls were thin and she was able to hear them engaging in sexual relations for a period of about twelve months after the applicant moved in.  At that stage it stopped.  Ms C did not move out of the home until 2000.  Ms D, who had an adjoining bedroom on the other side of her mother’s room, also testified that for a period of between six and twelve months she was able to hear the parties engaging in sexual relations, after which point she could hear it no more.  Ms D moved out in 1996.

1. The respondent’s evidence as to the end of the sexual aspect of the relationship cannot be accepted.  The evidence given by Ms C and Ms D is consistent with each other, and inconsistent with the mother, undermining the idea that it may have been prepared to assist her case.  The careful and considered manner of their giving of evidence, and the fact that their evidence was not wholly supportive of their mother, means significant reliance should be placed upon their testimony.

2. Their evidence also conflicts with the applicant’s description of the continuation of the sexual relationship.  His explanation of the continuation was not supported by any detail or particularity in its description.  Given the generalised nature of the assertions, and their conflict with the evidence of Ms C and Ms D, the applicant’s description should not be accepted. 

3. This means that the sexual aspect of the relationship should be taken to have ceased by about the end of 1993.  It was also the evidence of Ms C that from approximately 1994 she observed no physical affection between the parties. 

4. The respondent commenced to work in the applicant’s business in the later part of 1992, initially undertaking some reception work.  She was not paid for this. This work increased.  By 1994 and through 1995 the respondent was working as the office manager for the business.  She did this without receiving any payment from the applicant.  This continued until after a receiver was appointed for the business.  The respondent agreed that she and the applicant would travel together from her home in Suburb B to the business in Suburb J each day, returning after work together. 

5. The applicant then commenced work as an employee for another business and also purchased a business at Suburb K, close to where he was then working.  He asked the respondent to operate the business.  This she did without receiving a wage from the business, although her evidence was that she was able to take expenses and some money from the business.  The respondent also did some work in the business.   After less than twelve months that business failed and the respondent started another with her daughter Ms C at another location. The applicant would visit the respondent’s business. Ms C observed a decline in the relationship, with her mother becoming unhappy and the parties ceasing to talk to each other.  This happened sometime after the respondent and applicant finished with the Suburb K business. 

6. During the time that the respondent was working for the applicant without receiving payment, he commenced to pay some of the rates for the home, some outstanding school fees and the sum of approximately $22,000 for improvements to the home by way of an extension.  This did not continue.  The respondent asserts that this was in lieu of wages.  However, in asserting this the respondent leads no evidence of how this conclusion was arrived at, such as conversations between the parties to such an effect.  What is undisputed is that the respondent worked, without payment, to the benefit of the applicant.  The applicant made payments to the benefit of the respondent.  Even if it is considered to be in lieu of income, that does not necessarily detract from it being a form of financial interdependence, particularly absent evidence as to when and how such an arrangement was agreed. 

7. At around the same time, in 1995, the respondent agreed to act as guarantor in relation to a loan taken out by the applicant to fund some litigation related to his previous business.  That guarantee was subsequently called upon by the bank.  In the period that followed the call and payment by the respondent, the applicant provided the respondent with funds to recoup the loss on the guarantee. 

8. In respect of household supplies, Ms C observed that the applicant would purchase groceries for himself, but would also eat what was prepared by the respondent.  He did not contribute to household expenses generally.

9. Ms D left the home in late 1996 for a period of two years, to live in New Zealand, returning to Australia early in 1999.  While in New Zealand she said she had conversations with her mother where the respondent indicated that the relationship was not working.  On her return from New Zealand she noted that the applicant was sleeping on a sofa rather than in the respondent’s bedroom.  Ms D was unable to say for how long he remained sleeping on the lounge. 

10. Ms D recalled occasions where the respondent told him to move out of the house.  Through 2000 to 2014 she said that she heard the respondent yelling at the applicant to move out.  This occurred on a fortnightly, consistent basis.  She accepted that she was unable to be definitive about the precise timeframe for when she heard these conversations, acknowledging that, aside from hearing it being said, she had had conversations with her mother about the unsatisfactory nature of the applicant remaining in the home.  For this reason it was difficult for her to identify with precision when it was that the mother was asking him to leave.  Ms D offered to assist her mother in having the applicant leave the home (by offering to move back in and be unpleasant) but her mother declined the offer on the basis that she did not want to cause any trouble and did not want her life to be any more difficult than it already was. 

11. While the applicant’s account was that he only spent a period of approximately three months sleeping on the couch due to relationship difficulties, Ms C’s evidence was that it was for a period of approximately two years.  The combination of Ms C’s and Ms D’s evidence about the applicant sleeping on the lounge indicates that it was a period of about two years that continued for some time after Ms D returned from New Zealand at the start of 1999.

12. The respondent accepted that there was variability in the parties’ relating to each other.  At times she experienced him as pleasant or good company. The respondent said that 2000 marked the time that she wanted the applicant to move out.  Around this time the respondent was saying to Ms C that she wished the applicant would move out. Ms D saw her mother, in about 2000, say to the applicant that if he would not move out then he should pay rent.  He laughed at this and walked away. Also around this time Ms D was present when the applicant told the respondent that she was a “useless fat woman,” “uneducated, you can’t even read properly” and “stupid.”

13. Ms C heard her mother, at the end of the time of the applicant sleeping on the lounge, to tell him “this is ridiculous [Mr Brownless], you’ve got to go.”  About the time that he moved back into the respondent’s room she commented to Ms C that he was being nice and “it looks like he is not going to move out.”  The respondent said that by the time he moved back into her room, she had asked him to move out on numerous occasions, without him doing so.  She says that she did not know what to do when he moved back into her room.

14. In 2005 $28,000 was provided by the respondent to assist the applicant in the purchase of a property at L Town.  The respondent says that this was a loan.  The applicant says it was a contribution.  A further $25,000 was provided in relation to a crop failure.  These amounts will be discussed under the heading of financial interdependence.

15. At a time well after his bankruptcy in 1998, in 2006, the applicant took steps to transfer items of his property into the respondent’s name, purportedly in relation to his bankruptcy. This transfer was never completed.  On the respondent’s account, although she had seen a solicitor, Mr M, about this matter, she was “constantly pressured…to see another solicitor, in particular [Mr N].” This significantly misstated the position.  Mr N was a solicitor of her choosing, and the solicitor she consulted later to have the applicant removed from the home. 

16. In 2007 the respondent told Ms D that she had provided the applicant with further money.  She explained to Ms D, over Ms D’s objection “you don’t know what it’s like.  If I don’t do what he wants me to then he just makes life hell for me.”  Further she asked Ms D not to do anything about it because “he’ll just make my life hell.”  As it turned out, her pessimism about being able to get the applicant out of the house was well founded. 

17. In 2009 the respondent’s daughter, Ms H, moved out of the home.  The respondent says that at that stage she moved out of her room and into Ms H’s old room.  Although Ms D and Ms C had previously moved out, their rooms had been filled up by the applicant with shelving and his items.  The applicant says that this did not occur until 2012.  However, his account as to dates should not be relied upon, for reasons discussed below.

18. While the applicant’s affidavit evidence set out a series of dates for various incidents, under cross-examination he qualified his evidence about these dates.  For example, he accepted that for the bulk of the matters set out on the first page of his affidavit and at [9] of his affidavit, he was unable to determine what the dates were other than through reconstruction from other events, making estimates, and in large part relying upon the respondent’s assertion as to various dates.  He generally accepted that her recollection of dates was superior to his.  For example, he was unable to recall when it was that he had been made bankrupt (6 February 1998). To establish this date he had his lawyers contact the official receiver.  As identified previously, he significantly misstated the date of Annexure E of his affidavit. Given even his own concessions about establishing dates, unless he has sourced a date from the respondent, or another identified source, the applicant cannot be considered to be reliable as to dates.

19. The applicant agreed that as at 2014 the respondent was requesting that he leave the home.  By December 2014 she had engaged assistance from solicitors who wrote to the applicant telling him that he was required to move out from the home.  He refused to do so.  The respondent said that she did not at any stage contemplate taking active steps to get him out of the house until it had become beyond her endurance.  She did not consider attending upon a lawyer until 2014. 

20. In January or February 2015 the respondent moved out.  In February 2015 she called the police and asked them to remove the applicant.  He refused to leave.  Ultimately in July 2015 the respondent commenced proceedings in the Supreme Court of New South Wales to have him removed from the home.  She was successful in those proceedings with summary judgment against the applicant on 1 December 2016.  Orders were made for the respondent to have possession of the property.  These were stayed for a number of weeks and the applicant then moved out of the premises.

21. The applicant denied that he had been asked to move out at any point before the police attended.  He was clearly incorrect in this, at having been made clear in December 2014 through correspondence from solicitors that he was to leave.  His testimony also conflicted with both Ms D and Ms C’s evidence.  Their evidence as to this matter should be preferred. 

Financial interdependence

1. Although the applicant asserted that he contributed significantly to the respondent’s household expenses, he produced almost no evidence in support of this contention. 

2. For example, he asserted that proceeds from crops from the farm owned by him at L Town (acquired in 2005) were wholly paid into the household expenses for the parties.  He produced no tax returns to establish that he had received monies from the L Town property.  His evidence was that between 1992 and 2008 he only lodged tax returns on about three occasions, being between 2004 and 2008.  This is largely within the period of time in which he had the L Town property.  However, he did not produce any of these tax returns to establish income from that property. 

3. He further asserted that after he ceased to be employed in his original profession in 1998, he commenced work at a TAFE in 1999 and then in his current role in 2012.  He says that his income from TAFE was wholly contributed to the household expenses. 

4. That income, he accepted, was paid into his O Bank account.  No bank records were produced to substantiate his claims, neither as to the payment of the L Town monies, nor as to the payment of the TAFE expenses.  He stated that he had not consulted these records in making the assertion in his affidavit that all of the funds were used for household expenses. 

5. The absence of any corroborative evidence needs to be seen in the context of his production of a coffee shop receipt from 2012 to establish that he had bought himself and the respondent coffees on one occasion during a trip, and his production of an invoice from the NRMA, with a photocopy of the cheque in payment of the invoice, for a payment on behalf of both of the parties (who are jointly named on that account).  This was the height of the material that he was able to produce by way of corroboration.  Despite the experience he must have gained running his business, and despite his acceptance that he may well have access to bank records and tax returns, none were produced in the proceedings to verify the claims that he made.  What was produced was peripheral. 

6. Of the claims of the contribution of the entirety of his income to the household expenses he subsequently accepted that it was untrue to say that his total earnings went into the household expenses.  He used portions in relation to the L Town farm, travel and mortgage expenses for that farm.  He accepted that his assertion was untrue, although subsequently he sought to revisit the matter to say that if the L Town expenses were counted as household expenses then the statement would be true.  Similarly, he accepted that his statements in relation to the use of the L Town proceeds were “partially untrue”.  Despite his assertions as to the frequency of receipt of proceeds of cropping of that property, he accepted that in the twelve years that he had been cropping the property since 2005 he was unable to say how many times a crop had been returned.  He did not provide bank statements showing payments in relation to the crops, he did not provide tax returns and further, he accepted that he had borrowed $25,000 from the respondent because there had been a failure of the crop at L Town. 

7. This marked the second sum of money that the respondent had advanced in respect of L Town.  Both sums, despite their lacking any agreement in writing, despite there being lack of demands for repayment, despite there being no arrangement for the payment of interests, were both voiced as loans on the part of the respondent.  This much is made clear by the reported conversation on the part of the respondent where, on loaning the second amount she asked whether it would be the same as the first amount which had not yet been repaid, despite being a loan.

8. Aside from contributions to rates and other such expenses, some school fees and the costs of the extension, early in the relationship, the applicant made no meaningful contribution to the cost of running the home.  His contention to the contrary should not be accepted. This does not mean that there was no further financial interdependence. For example the Respondent’s payments of funds toward L Town, even if expressed as loans, illustrates some degree of interdependence.

Other matters 

1. A number of other matters were raised as being of significance in the proceedings.  While the respondent gave evidence that she was generally unhappy with the applicant being at the home, it was from about 2000 that she wanted him to leave the home.  She says that although she was unhappy until this time they were “rolling along ok”. 

2. Even after this date, the parties still engaged in some activities together.  They went on various trips away together, driving to far North Queensland, driving to South Australia via Melbourne and as late as November 2012, driving together to the Riverina in Victoria.  The respondent travelled with the applicant when he was looking for a rural property to purchase and also when he was obtaining equipment for that rural property.  This saw them go on a trip together to P Town in New South Wales.  Normally the parties would share motel rooms on such trips.  The taking of the trips sat uncomfortably with the unhappiness that the respondent expressed with having the applicant in the home, but was consistent with her description of the variability in how they interacted.  She said that he could be pleasant company and that she enjoyed getting out of the house and away on trips.

3. The applicant attended various other events with the respondent.  He attended one pre-Christmas function at her sister’s home and one Christmas event with a daughter but, contrary to his evidence, it is not the case that he attended the sister’s home on multiple occasions, for example by dropping-in at the home.  This was expressly denied by the sister.  Further, he asserted that he would frequently go out to lunch with the respondent and her daughters.  Ms D, when asked about this, indicated that there were no interactions between herself and the applicant involving having lunch with her mother.  Ms C accepted that this sometimes occurred.

4. It was suggested for the applicant that part of the reason why he did not have material available to support his case was that there had been interference with his attempts to remove the material by Ms D.  Subsequent to the Supreme Court proceedings and the order for him to vacate the property, he was allowed by the respondent to return on one occasion to collect items.  He returned with a trailer and Ms D was present for that process.  He asserted that she had taken from him documents that would support his case.  She denied this.  She agreed that she had taken a number of family photographs away from him that he attempted to remove, including photographs of her and her sister as children.  She further accepted that she had taken from him one spiral ring bound exercise book that belonged to her mother.  However, not only was the applicant in sole occupation of that property pending the Supreme Court proceedings, but the order for him to vacate was stayed for a number of weeks after it was made, giving him ample opportunity to remove any material that happened to be important to his case, noting that by that stage he had commenced litigation in this jurisdiction.  Given his previous business experience, his unfettered access to the home for an extended period, even after the commencement of litigation, along with the evidence of Ms D, his explanation for a lack of corroborative material should not be accepted.

5. The applicant also took the respondent (and perhaps her family members) out to dinner to celebrate the respondent’s seventieth birthday.  He purchased her a pearl necklace.  This occurred in 2009.  While he asserted that he had given her other jewellery, including jade jewellery, the respondent denied that this was the case.  She accepted that he had returned from China with jade jewellery, shown it to her, but then promptly placed it into his safe never to be seen by her again.  This, she contended, could not be seen to constitute a gift.

Discussion

1. The early part of the common residence of the parties was marked by the sharing of a home, a bed, sexual relations and a significant degree of financial interdependence, as the respondent worked in the applicant’s businesses without remuneration and the applicant paid for rates and the like, some school fees and a renovation.

2. This combination of the nature and extent of their common residence, sexual relationship and financial interdependence, in the context of their working and living together, means that despite the relationship not having longevity at that point, being unregistered, being limited as to the support of, and without the care of children, being limited in the public aspects of the relationship, and limited in respect of a mutual commitment to a shared life to the matters identified above, for a period the relationship did meet the description of Murphy J of “the parties hav[ing] so merged their lives that they were, for all practical purposes, 'living together' as a couple on a genuine domestic basis”.

1. As time progressed, those matters that brought the relationship within that description eroded.  While they remained in the same bed, the sexual relationship ended.  Their shared work arrangements ended, as did a large part of the financial interdependence.  The sharing of the bed ended with the applicant sleeping on the lounge for a period of about two years.  The quality of their relationship declined.

2. Although the applicant moved back into the same bed, it is not at all clear that this was an aspect of the improvement of relationship.  Even if it was, it was absent the other factors, save for common residence which had, by that stage, become long standing.

3. Acknowledging that some indicia of a de facto relationship remained, when considering their combined effect it is doubtful that a de facto relationship was in existence from the point at which the applicant commenced to stay on the lounge, even though he later returned to the bed. I am not persuaded that, in the context of a rather unusual relationship, the return to the bed was a return to coupledom.

4. Further, by some unidentified point in 2009, the respondent moved into another bedroom.  The single matter of intimacy that could be added to the common residency was then also removed.

5. By this time there was certainly no de facto relationship.

6. There still remained some relationship after this time.  They travelled together.  They shared some pleasant times.  The applicant gave the respondent a gift, and a dinner for her milestone 70^th birthday.  However, those matters, in combination with the common residency, were no longer enough to meet the description of merged lives such that they were “a couple living together on a genuine domestic basis.”

7. The onus lies upon the applicant to establish the de facto relationship.  That onus is on the balance of probabilities.  He has not established that the relationship was a de facto relationship after he moved onto the lounge.

8. Even if that were not the case, the movement of the respondent into another room in 2009 marks a point at which the relationship certainly did not meet the description. The uncertainty of the timing of this, combined with the onus upon the applicant, means that he has failed to establish that, even if it was this that marked the end of the de facto relationship, it occurred after 1 March 2009.

9. Accordingly, no declaration will be made, as it has not been established that a de facto relationship was in existence post 1 March 2009 to found the jurisdiction to make the declaration.  The corollary is that there is no jurisdiction to hear the s90SM application and it will be dismissed.

I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 27 February 2018

Associate: 

Date:  27 / 2 / 2018