DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant applies to the court for a declaration, pursuant to s 317 of the Property Law Act 1974 (“the Act”), that the de facto relationship between the parties ceased on 18 April 2000 (amended at hearing to 26 February 2000) or on another date unknown but in any event after the commencement of Part 19 of the Act, which commenced operation on 21 December 1999.  Subject to the court’s order on this issue, the court may then be required to determine other issues relevant to the parties.

2. [2]
   In accordance with the practice direction in these matters, the application has proceeded by way of affidavit evidence filed on behalf of the applicant and respondent respectively, with a number of deponents being called for cross-examination.

The Evidence

3. [3]
   It is common ground that the parties to this application met in 1974 and commenced to live in a de facto relationship, within the meaning of that term under Part 19 of the Act, shortly thereafter (at some time between October 1974 and January 1975).^[1]  The issue to be decided in this application for present purposes is when that relationship finally ceased and, in particular, whether it ceased after the commencement of Part 19 of the Act.

4. [4]
   At the commencement of 1999 the parties resided at 6 Crown Road, Alexandra Hills, Queensland. It is also common ground that the parties continued to live together in their de facto relationship until at least the early part of 1999, when they initially separated, although the parties differ within a month or two as to when that separation occurred. The respondent swears that the de facto relationship between the parties ended “as of April 1999”^[2] or “late May, very early June 1999”^[3] whereas the applicant says that the date of final separation and the end of the relationship was 26 February 2000.^[4] 

5. [5]
   The applicant was cross-examined at length as to when the parties separated and the de facto relationship ceased, so far as the respondent is concerned, during the course of 1999 to 2000, and it was put to her that the applicant and respondent “… began to lead separate lives … as of April (1999)”, which the applicant denied^[5].  The applicant’s evidence was that it was “… around about June (1999)” that she and the respondent “… began to lead separate lives”^[6].

6. [6]
   The applicant further stated that the respondent moved out of the jointly-owned residence at 6 Crown Road, Alexandra Hills “… at the very end of June, beginning of July (1999)”^[7].  She further stated that the respondent moved back into the house at 6 Crown Road, Alexandra Hills “….in late October, beginning of November in ’99….”.^[8]  The applicant further agreed that during the four-month period that is between July and October 1999 the relationship was over.^[9]

7. [7]
   The respondent’s evidence on this issue was that the de facto relationship between the parties “… came to an end … about a week after S’s (21^st) birthday.”^[10]  “S” refers to the parties’ son who attained 21 years of age on 21 May 1999.^[11]

8. [8]
   The applicant further agreed that during the four-month period that is between July and October 1999 the relationship was over^[12].

9. [9]
   The applicant further stated that the reason she and the respondent separated at the time they did “… at the very end of June, beginning of July (1999)” was because of the difficulties which had arisen because of the applicant’s disability, necessitating her use of a wheelchair^[13].

10. [10]
    The applicant notified the Centrelink Authority to adjust her benefit (disability support pension) to that of a “separated” person as from 12 July 1999 but subsequently notified the authority to readjust it again as a “married” person as from 31 October 1999.^[14]

11. [11]
    The applicant said that she and the respondent reconciled their differences and renewed cohabitation in late October 1999, subsequent to their calling “… a family meeting of B, V, C and S …” and explaining that she and the respondent “… were going to reconcile”^[15].  The applicant further stated that the respondent “… ended his relationship with H and moved back into Crown Road”^[16].

12. [12]
    The applicant stated further that she and the respondent then:

• continued to live in a caring relationship as had existed during the previous 26 years;

• resumed our usual routine;

• would go to the Sands Hotel on Friday nights for dinner and listen to the band;

• attended the Yamba Rod Run in November 1999;

• TP’s surprise party early December 1999;

• (she) continued to cook, clean and do all the domestic chores including his (the respondent’s) washing, cleaning, cooking and shopping;

• had dinner together every night with our son S;

• (spent) Christmas Day in 1999 with all the family;

• kept doing everything together until I (the applicant) left for New Zealand on 10 January 2000;

• had a very healthy sexual relationship which occurred at least three times a week and this was the position up to my departure for New Zealand on 10 January 2000”.^[17]

13. [13]
    The applicant’s further evidence was that the de facto relationship finally ceased on 26 February 2000^[18] although, in her affidavit filed 16 December 2004, the applicant swore that the separation occurred 18 April 2000 being “… the date from which (the applicant) became eligible for Centrelink payments as a separate person”.^[19]  However her sworn evidence at the hearing was that the cessation occurred on 26 February 2000.

14. [14]
    The respondent’s evidence is that his de facto relationship with the applicant ended in April 1999, when he moved into the applicant’s daughter’s vacant bedroom at 6 Crown Road Alexandra Hills, Queensland, at which time he “… unequivocally regarded my relationship with LN as at an end …”^[20].

15. [15]
    He further stated that:

“After this time we then led separate lives, in that we would not go out in public together, we would come and go as we pleased, we would not account for movements to one another, we would not consult each other on our finances and we had no joint or shared bank or other financial institution accounts or credit cards.  At this time, all sexual relations between LN and I ceased and has never been resumed as in March 1999 LN said to me, ”If you want sex you can go down the valley’ or words to that effect.  I was forced to stay at the house until late May/very early June 1999 as I was unable to obtain affordable accommodation elsewhere despite my best efforts.”^[21]

16. [16]
    The respondent stated that when he moved out of the jointly-owned home at 6 Crown Road, Alexandra Hills, he resided at “… 13 Quentin Street, Capalaba, Queensland … until mid/late November 1999 and from mid/late November 1999 until approximately June 2000 I lived at 556 Main Road, Wellington Point, Queensland”^[22].

17. [17]
    The respondent conceded that during the period “… of early November to 22 November 1999 I would spend one, two, and on one occasion three nights at the house, being approximately 13 nights in total. During these nights I stayed and slept in LN’s daughter C’s vacant bedroom (but that) my belongings were still at 13 Quentin Street, Capalaba…”^[23].

18. [18]
    The respondent further stated that his “… overnight stays at the house ceased in November 1999” and that thereafter he has “… never slept overnight with LN at the house or otherwise”^[24].  These allegations were put to the applicant in cross-examination but she denied them.^[25]

19. [19]
    The respondent further conceded that he:

• attended the Millennium Party New Year’s Eve 1999/2000 with LN at Nerang;

• in early December 1999 I attended a surprise party for TP at Birkdale with LN;

• on Christmas Day 1999/2000 I went surfing with JS and his two sons, CS and SS, to the Gold Coast and then attended Christmas lunch at 6 Crown Road;

• attended `the family gathering’ at the Gold Coast … to see LN’s sister’s family who were visiting from Ireland’^[26].

20. [20]
    The parties’ son, S, gave evidence under subpoena and confirmed that his parents separated “shortly after” his 21^st birthday on 21 May 1999 and that his father was away from home “… for a few months”^[27] but that he returned to the home “… coming up a few months before Christmas ‘99”^[28].

21. [21]
    S stated that “… the family got together … everyone – Mum, Dad, B, V and C … and me of course”^[29].  He further stated that it was “… a family meeting to say that Dad had done a few things wrong and Mum probably done a few things wrong and they both said that they’re going to try and sort things out … and then from that day onwards they were living together”^[30].

22. [22]
    S further confirmed that there was a discussion about a car and he also stated that “Christmas Day was just a seafood feast at home just like we always do”^[31] and that “the family” celebrated New Year’s Eve at Nerang^[32] and that the respondent moved out of the house “… I think when Mum came back from New Zealand.  That was the time when they sort of split”^[33].

23. [23]
    The applicant’s son, B, gave evidence that “… there was a meeting in October” attended by “… my mother, my father, myself, my brother, V, my other brother S and my sister C”^[34].

24. [24]
    B further stated that at the “family meeting” the applicant and respondent:

“… both said that they were going to try and – they wanted to start – they wanted to – well, they wanted to put things aside, there had been some things that they didn't – that hadn’t gone down real well, they wanted to reconcile and start again – not to start again but just – how can you word it – they wanted to try and get past what they had been through in the last six months or so.”^[35]

I consider this witness to have been honest and forthright in his answers doing the best he could to recall the events of which he was asked.

25. [25]
    The applicant’s son, V, also gave evidence and confirmed the “… family meeting … in late October …”^[36] and that “they (his parents) had split and there were coming back together and giving it another go”^[37].  He also confirmed that he remembered that “Christmas” and that his parents were “… together at that time”^[38].  V gave forthright evidence that at the “family meeting” the respondent said, “We’re back together.  We’re going to give it a go”^[39].  I was also impressed by this witness’s evidence as he answered questions asked of him in a straightforward manner; trying to be as accurate in his answers as he could.

26. [26]
    A number of affidavits were filed by witnesses on behalf of the respondent, some of whom were cross-examined, but much of the evidence from these witnesses was equivocal on the crucial period of when the parties separated on the first occasion in 1999 and the circumstances surrounding the continuance of the relationship in the latter part of 1999/early 2000.

27. [27]
    In identifying the de facto relationship, his Honour Justice Dutney in the case of S v B [2004] QCA 449 referred to an excerpt from Hibberson v George (1989) 12 FamLR 725 at 739-740 in which Mahoney JA stated with reference to “the de facto relationship”:

“There is, of course, more to the relevant relationship than living in the same house. But there is, I think, a significant distinction between the relationship of marriage and the instant relationship.  The relationship of marriage, being based in law, continues notwithstanding that all of the things for which it was created have ceased. Parties will live in the relationship of marriage notwithstanding that they are separated, without children, and without the exchange of the incidents which the relationship normally involves. The essence of the present relationship lies, not in law, but in a de facto situation. I do not mean by this that cohabitation is essential to its continuance: holidays and the like show this. But where one party determines not to ‘live together’ with the other and in that sense keeps apart, the relationship ceases, even though it be merely, as it was suggested in the present case, to enable the one party or the other to decide whether it should continue.”

28. [28]
    This citation followed Dutney J’s own words:

“De facto relationships are by nature fragile.  The robust institution of marriage survives until formally dissolved by legal process, even though the parties are no longer a couple and exhibit none of the observable indicia of a domestic arrangement.  It has been recognised, however, that the persistence of those indicia are fundamental to the continuance of a de facto relationship.”^[40]

29. [29]
    At paragraph [28] of his judgment, Dutney J expressed approval of the primary judge’s conclusions that a de facto relationship existed in that case based on five findings of fact viz.

1. (a)
   The parties enjoyed an intimate relationship which included mutually exclusive sexual intimacy.

2. (b)
   The respondent routinely kept house for the appellant.

3. (c)
   The appellant supported and cared for the respondent’s son.

4. (d)
   The respondent was significantly dependent financially on the appellant and this dependency was encouraged by the appellant.

5. (e)
   The parties presented themselves to the outside world as a couple.

30. [30]
    On a consideration of all the evidence in this application, I am satisfied that the most reliable and credible evidence on point is that of the applicant and the witnesses called on her behalf, and where such evidence differs from that of the respondent and those witnesses called on his behalf, I accept the evidence of the applicant and her witnesses.

31. [31]
    I therefore make the following findings:-

1. (i)
   I am satisfied that the parties lived together in a de facto relationship within the meaning of that term under Pt 19 of the Act from in or about October 1974 until in or about late June 1999;

2. (ii)
   That the parties separated in or about late June 1999 when the respondent moved out of the jointly owned residence at 6 Crown Road, Alexandra Hills, Queensland;

3. (iii)
   That despite the parties commencing to lead “separate lives” at that time, there was on-going communication between them in the following four months culminating in the “family meeting….in late October 1999” after which the parties reconciled and the respondent moved back into the residence at 6 Crown Road, Alexandra Hills, Queensland and resumed cohabitation with the applicant in a de facto relationship;

4. (iv)
   That such de facto relationship continued until the parties finally separated on 26 February 2000 at which time the de facto relationship between the parties ended.

32. [32]
    It follows, therefore, and I so find that the de facto relationship between the parties to this application ceased after the date upon which Part 19 of the Act came into effect, that is after 21 December 1999.

33. [33]
    The orders of the court will therefore be:

3. (1)
   The court declares that the cessation of the de facto relationship between the parties to this application occurred after the commencement of Part 19 of the Property Law Act 1974; and

 (2) The costs of this application are reserved.

34. [34]
    I shall hear the parties on the further conduct of these proceedings and any further directions that are required to progress this matter.