Property – De facto relationship existed despite both parties’ infidelities and de facto husband’s FIFO work
In Bahan & Pinder [2021] FedCFamC2F 347 (11 November 2021) Judge Taglieri considered whether a de facto relationship existed at a threshold hearing. The applicant contended that she and the respondent lived together in Tasmania as a de facto couple from March 2012 to June 2019, while the respondent contended that the relationship was a casual boyfriend/girlfriend, save for a few months.
The applicant was a 31 year old administration assistant, while the respondent was a 29 year old tradesman, his FIFO work being such that he would spend 28 days interstate and then 7 days back in Tasmania ([16]).
The applicant said that the parties did not separate in 2014 when she “had a sexual encounter with Mr D” ([27]) but did separate for a few months in 2016 when she “discovered that the respondent was secretly seeing and having sex with her best friend” ([21]).
The applicant’s evidence included that the respondent’s real property was transferred from her father, who assisted financially with the purchase, and the contention that it would have been transferred to both of them if the respondent had not convinced her that she would be able to “seek a government grant for a future purchase of property” ([19]).
The applicant also said the parties maintained separate bank accounts, but shared joint expenses, albeit unequally where the respondent earned a higher income ([24]).
After citing Jonah & White [2011] FamCA 221 and Crowley & Pappas [2013] FamCA 783, the Court said (from [13]):
“Whether a de facto relationship existed and, if so, when it commenced and ended is a matter for determination on the facts, although the perceptions of the parties may be relevant to this … The fact finding required is somewhat complicated when the parties have different perceptions and their perceptions may be motivated by a desire to achieve particular outcomes.
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[18] The applicant says that throughout the relationship right up until 2019, the parties had a sexual relationship, sharing a bedroom for the entire time, even when their relationship was tested due to infidelity. …
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[28] It is clear from evidence before the Court that the sexual encounter between the applicant and Mr D was a source of the grievance for the respondent. There was evidence that in 2015 the respondent wounded Mr D, faced criminal charges concerning that offence, and both parties sought restraint orders against Mr D.
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[31] The text messages [in evidence] … relate to the period 7 August 2018 to 14 June 2019 when the respondent was doing FIFO work. They can only be described as prolific and very frequent communications between the parties, relating to normal issues arising in day-to-day life when persons share a joint domestic life as a couple. For example: referring to break down or malfunction of equipment on the property, feeding/caring for animals, what the parties would be doing during the day, the applicant’s health and treatments and paying for this, the respondent’s work and what he was doing, flight times and arranging his collection from the airport. The messages also included some expressions of love.
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[37] During cross examination, the applicant agreed that she had access to the respondent’s credit card up until 2016, but not after that time. When it was put to the applicant that the parties had not had much of a shared life after 2016, with the respondent away a lot and each having sexual relations with others, the applicant maintained that she only learnt about the respondent’s other affairs later and that she had only slept with one person after they reconciled in 2016, being Mr H.
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[54] Under cross-examination, the respondent stated that the conversation that they were not reconciling occurred on each occasion they had sex after October 2016. His evidence was that they remained single and were both free to pursue other relationships.
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[59] Several documents from the criminal proceedings during 2015 which contain references to the applicant as the respondent’s partner … were put to the respondent in cross-examination. The respondent stated that the documents were not written by him, and that he had identified the applicant to the authors as his girlfriend. …
[60] The respondent was also taken to the Statutory Declaration … in support of the application for Restraint Order against Mr D … in which the applicant is referred to by him as his ‘partner’. His evidence was that the parties discussed seeking restraint orders and that he paid the lawyer who drafted the documents. From this it can be inferred that the respondent gave instructions as to the content of the documents and approved of them.
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[70] Counsel for the applicant questioned the respondent about his messages with Mr H during May 2017 … It was put to him that they were having a conversation about the applicant cheating on the respondent with Mr H and there could only be ‘cheating’ if the applicant and the respondent were in a relationship. The respondent denied this.
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[77] Ultimately, based on my assessment of the parties’ evidence, I have no hesitation in concluding that where the evidence of the applicant and respondent conflicts, I ought to prefer the evidence of the applicant. In arriving at this conclusion, I have carefully considered the often cited statements at [165] to [167] in Carlson & Fluvium [2012] FamCA 32.
[78] In addition, there are a number of documents before the Court in which respondent uses or adopts the description of the applicant as his partner. I believe as contemporaneous records of occurrences in time, they reflect what is on the evidence a relationship as a couple on a bone fide domestic basis and not that they were in a casual boyfriend/girlfriend relationship.
[79] The respondent’s evidence that he regarded the parties to be in a casual boyfriend/girlfriend relationship is a subjective perception and I give it very little weight as the objective hallmark features of a de facto relationship are established on the evidence.
[80] Preferring the reliability of the applicant’s evidence where it conflicts with that of the respondent, I make the following findings of fact concerning the section 4AA(2) considerations:
(a) The parties were in a relationship and shared all facets of day to day life together … from late 2014 to June 2019, although this period was briefly interrupted by very short periods of separation on two occasions and then reconciliations;
(b) During the period referred to above at (a), the parties resided commonly at the … property, which was owned by the applicant’s father initially but then purchased by the respondent in 2016 in his name for the parties’ joint use as a home. When the respondent was absent doing FIFO work, he still maintained it as his home with the applicant and she undertook chores and housework for his benefit;
(c) The parties had a sexual relationship throughout the period 2014 to 2019, although it was not a continuously exclusive sexual relationship, as each of them had sexual encounters with others;
(d) The parties earned income and provided financially for themselves to a degree, but the respondent provided financial support to the applicant who was financially dependent on him;
(e) During the period referred to above at (a), the parties expressed love for each other at various times throughout as would be commonly expected of a couple in a committed relationship as a couple;
(f) The parties each referred to the other as their ‘partner’; and
(g) They socialised as a couple and were regarded as such by the witnesses called by the applicant. It is notable that the respondent did not call friends or associates to rebut this evidence. …
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[82] Although the parties had tumultuous periods involving infidelity and short separations, they persisted together as a couple and cohabited on a bona fide domestic basis at the B Street, Town C property. This persistence in the face of infidelities that each felt and expressed, demonstrated a mutual commitment to a shared life. …”
The Court declared that a relationship existed between 2014 and 2019 and for a period of at least 4 years and 6 months.