Evidence of duration of de facto relationship

HUBERT & STROUD[2019] FCCA 2538

The evidence relevant to the duration of the de facto relationship

  1. On hearing, the Applicant relied on his affidavit sworn or affirmed on 29 March 2018. He sought leave to rely on his further affidavit affirmed 18 April 2019 and his financial statement affirmed 18 April 2019, the orders made by Judge Henderson on 15 August 2018 having required that the parties each file and serve one trial affidavit on which they intended to rely at hearing and any updated financial statement by 8 March 2019. That leave was granted.
  2. That a de facto relationship between the parties had commenced in sometime between April and June 2009 was agreed between the parties. Relevant to the issue of the date of end of the parties’ de facto relationship, the Applicant asserted that as a matter of evidence:

    a)           During the relationship the parties experienced frequent difficulties mainly because of “money issues” and that sometimes the Respondent spoke to the Applicant “very badly and disrespectfully … And also in a very rude manner”;

    b)           There are occasions when the parties experienced difficulties in the relationship the Applicant would give the Respondent “some space by leaving the Town B unit and staying at either my mothers or fathers place in Sydney.” He recalls doing this on four occasions, on three of which he returned back to their common home at Town B and “continued to live generally happily as a de facto couple”;

    c)           The parties experienced difficulties in their relationship, mainly over money issues, through December 2015 and January 2016 and on the night of 1 February 2016 when they “had a fight (again) about money.” The Applicant had “a very uncomfortable night …. And… Had difficulty sleeping.”;

    d)           On the morning of 2 February 2016, the Applicant got up at about 6:00AM and noticed that the Respondent was still angry with him. There was a confrontation between the parties about some mess that the Applicant had caused accidentally in the bathroom and the Applicant left their home for work upset. The Applicant made a decision during that day while he was at work that he would go home, pack a backpack, and go and stay at his mother’s home at Suburb C for a while to give the Respondent and himself some space to think about the relationship and whether he wanted to continue to be in a relationship with the Respondent. Returning home to Town B from work at about 7:00PM the Applicant packed up “some clothes and other personal belongings” in a backpack and went to stay at his mother’s home, leaving his remaining belongings at the parties’ home in Town B;

    e)           On 4 February 2016 the Applicant sent Respondent a long email, a copy which was the annexure “B” to his affidavit of 18 April 2019. Relevantly, the email includes the following evidence:

    I was not planning on leaving you, or saying many of those things, but you continue to push me away, while I push you away. We are too strong for each other.”…“I know sometimes u hate me and want me to leave. Happens to me to, that’s why I those messages. I tell u exactly how I feel. So that’s why I want to leave you. I feel like this is all lost. How can u change how think of me? I don’t think u can. You have already decided that I don’t deserve the house, or car, and a it’s not really about the physical things. It’s the fact that you refused to include me purely because of money … I feel so sad to lose u, but maybe that is what we need. I will miss u … But maybe we can fix this. I don’t know. I hope so. Let me know what u think.

    It is inherent in the text of the email that there had been an exchange of SMS messages between the parties between the Applicant leaving the Town B home on the evening of 2 February 2016 and creating the email on 4 February 2016.

    f)           Annexure “C” to the Applicant’s affidavit is evidence of a print of an email dated 27 February 2016 at 8:44PM from the Respondent to the Applicant containing a screenshot of an SMS message she had been trying to send to the Applicant, the text of the message being “I really haven’t had mine space to put what I’m thinking in words … Confused and tired! Need more time …” It was put to the Respondent in cross-examination that the message indicated that the Respondent was, as at 27 February 2016, still “confused about the relationship” to which the Respondent answered “No. The relationship was over.

    g)           The Applicant attaches to his affidavit as annexure “D” evidence of 29 pages of print out of SMS messages between himself and the Respondent. He asserts these messages to be from the period between when he moved to his mother’s house (2 February 2016) and at least 2 April 2016 though none of the pages of the SMS messages bears a date, only a notation of the time of day.

    h)           The Applicant deposed that on 1 April 2016 he decided “that the relationship was unsalvageable and over.” He deposes that by an arrangement made with the Respondent in the course of their SMS messages he borrowed his mother’s car on 2 April 2016, drove to the Town B home, packed up all his belongings, locked the front door and put his front door key in the letterbox. He then drove to a local park for a prearranged meeting with the Respondent and told her that the relationship was over and completely finished. He then drove the Respondent from the meeting place and dropped her at the Town B unit. In cross examination, it was put to the Respondent that during the meeting at the park on 2 April 2019 the Applicant had informed her that he had decided that the relationship was over. The Respondent denied that the Applicant had made that statement to her.

  3. In compliance with the trial direction orders, the Respondent filed a trial affidavit sworn 8 March 2019 and filed that day. Relevant to the issue of the date of the ending of the parties’ de facto relationship, the Respondent says in evidence that:

    a)           The last time the party spent time together was the morning of 2 February 2016 and that following an argument the Applicant left that morning “with a suitcase.” The Applicant did not return to the home after that time other than when he attended, in the Respondent’s absence, to pick up his computer table and his personal belongings;

    b)           On 26 February 2016, the Respondent organised to have the internet connection at the Town B home changed from the Applicant’s name to her name and she took over paying internet account. The Applicant cooperated with her in arranging this;

    c)           On 3 March 2016, the Respondent organised to have the electricity account for the electricity connection to the Town B home changed from the Applicant’s name to the Respondent’s name;

    d)           Since 2 February 2016, the Respondent has made all the payments required on the loan accounts secured by way of mortgage over the Town B home and has paid all outgoings relating to the Town B home without contribution from the Applicant.

  4. Other than the evidence detailed above, the Respondent’s affidavit does not assist in relation to a decision made by either of the parties, whether communicated to the other party or not, that their de facto relationship had come to an end.
  5. I have carefully read the print out of the evidence of the SMS chain at annexure “D” to the Applicant’s affidavit of 18 April 2019 and considered the content in the light of the question as to whether or not, in the view of either party, the de facto relationship between them ended on 2 February 2016 or 2 April 2016. On an unknown date is a message from the Applicant:

    Im saving up money incase we can get back so I can pay u back all those lost weeks and if we cant fix together then yeah I move out with … he needs a flatmate.

  6. There is a strong inference in the messages evidence that the parties had planned a trip together to Country D and had bought tickets in relation to that trip and that the Respondent was obtaining a refund in relation to the Applicant’s tickets:

    I’m getting refund from your tickets

  7. Immediately followed by a message from the Applicant:

    …cool keep it for ur backup

  8. To which the Respondent replies:

    …had to pay $500 fine … But I will get rest back.

  9. From the Respondent:

    I just want the best for you at the moment! As being together or not! If moving out helps U move on! I’m happy to help U! I feel bad keeping everything I do think u deserve some to … There is no flighting anymore … Just want to see u happy!

  10. And:

    …and yeah I’m not sure about us either … It’s too hard as we both know …

  11. And:

    I really think u r the person I want to end up with in life! Sucks we can’t be together… I have a lot more respect for then u think

  12. And:

    but I think u will do so well in life! Keep saving and look after yrself … Contact me anytime okay?

  13. Later from the Applicant:

    yeah I know what you mean busy does help, good on you, I really hope we can work this out sometime when I’m not so sad.. Be safe [name]

  14. And:

    I will try my best to get better and be the man you need and deserve.

  15. And:

    hope ur well, im starting to feel better but would like to have a more stable job away from mum them hopefully move out somewhere else or something.

  16. And:

    I still have strong feelings for you and don’t want to be with anyone else, but I know it’s hard to live together and I still have to improve myself, I will keep trying and hope one day we can go on some dates together or something and see if we can work this out.

  17. Sometime thereafter from the Respondent:

    and one day if you want to go on a date … Just remember you only have to ask”.Family law Sunshine Coast

    Family law Sunshine Coast

    Family lawyer Sunshine Coast