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Forum
Started Dec 23 2012, 00:35
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Dec 23 2012, 00:35
It seems to me to be clearly established by authority that the fact that, for example, the parties live in the same residence, for only a small part of each week does not exclude the possibility that they are "living together as a couple on a genuine domestic basis" or that the maintenance of separate residences is necessarily inconsistent with parties having a de facto relationship. So much is, in my view, clear from the statutory recognition that parties to a relationship can be married but also be in a de facto relationship.
The issue, as it seems to me, is the nature of the union rather than how it manifests itself in quantities of joint time. It is the nature of the union - the merger of two individual lives into life as a couple - that lies at the heart of the statutory considerations and the non-exhaustive nature of them and, in turn, a finding that there is a "de facto relationship".
On the facts, Murphy J ruled that there was not a de facto relationship. In particular at paragraph 69:
But, a number of other indicia point, in my view, to the opposite conclusion:
Each of the parties kept and maintained a household distinct from the other;
In the respondent's case, that household involved the maintenance of family relationships, including the support of children;
The evidence does not reveal any relationship, or any intended relationship, between the applicant and the respondent's children who, it ought be observed, were relatively young when the relationship commenced;
The relationship between the applicant and the respondent was clandestine and the time spent between the parties was spent (on either party's case) very much together, as distinct from time spent socialising as a couple;
I accept the respondent's evidence that he continued to emphasise the limits of the relationship with the applicant and, in particular, I accept his evidence to the effect that, he told the applicant that, if circumstances ever required him to "make a choice", he would "choose" his wife and family over the applicant.
Despite the regular monthly payments and the payment of $24,000 earlier referred to, the parties maintained no joint bank account; engaged in no joint investments together; and acquired, or maintained, property in their own individual names;
The parties rarely mixed with each other's friends. In that respect the evidence of the applicant's witnesses - Ms R, Ms H and Ms W - is indicative of very little contact between the respondent and each of them. Ms R said she had never met the respondent, but had spoken to him on the phone. Ms H said her dealings with the respondent were "very limited". Ms W said she met the respondent "only once";
The respondent ran what seems to have been a successful business, in which for some (early) years, the applicant was employed, but the parties did not mix with the respondent's business associates. After the applicant's employment with that business had ceased she had no involvement with it at all.
There was virtually no involvement by the respondent in the applicant's life in Brisbane (where she lived between about 1996 and 2006), and virtually no involvement by the respondent in the applicant's life in S where she has resided since 2006. (I accept the respondent's evidence that he has visited S on only three occasions)
The respondent accepted that he hoped that the relationship with the applicant was permanent, but, I accept, he made plain its nature as he perceived it. It was put by Mr Galloway to the respondent that the parties were in a long-term relationship to which the respondent replied "we were in a relationship; we were having an affair";
There was very little time spent by the applicant and the respondent with the applicant's family. I regard the evidence of the respondent, when he said to the applicant's mother that their relationship "was not an adventure" as being more reliable than the evidence contained at paragraphs 36 and 37 of the applicant's affidavit. But, in any event, I do not consider that the evidence contained in those paragraphs is indicative of the "coupledom" or "merger" to which I have earlier referred.
Despite (or, perhaps, because of) the evidence filed by friends of the applicant in support of her case, I do not accept that the applicant and respondent had a "reputation" as a couple; indeed, there was, on the evidence before me, very few public aspects to their relationship.
ID#12637695
Samuel
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