ABALOS & HALDER - [2019] FamCA 963

FAMILY COURT OF AUSTRALIA

ABALOS & HALDER

[2019] FamCA 963

FAMILY LAW – DE FACTO RELATIONSHIPS – threshold issue – where the applicant seeks a declaration pursuant to s90RD of the Family Law Act 1975 (Cth) as to the existence and duration of a de facto relationship – where the parties lived in premises rented and paid for by the respondent – where the applicant moved to other rented accommodation for approximately one year before returning to live with the respondent – consideration of the nature of the relationship during these periods – where it is held that the parties were in a de facto relationship during the entirety of the period from 8 February 2014 to May 2017

Family Law Act 1975 (Cth) ss 4AA, 90RD, 90SM, 90SB(a)
Evidence Act 1995 (Cth) s140
Family Law Rules 2004 (Cth) r 19.50

Jonah & White (2011) 45 Fam LR 460; [2011] FamCA 221; 258 FLR 236
Barry & Dalrymple [2010] FamCA 1271
Moby & Schulter [2010] FLC 93-447; [2010] FamCA 748
Smyth & Pappas [2011] FamCA 434

APPLICANT:

Ms Abalos

RESPONDENT:

Mr Halder

FILE NUMBER:

MLC

400

2018

DATE DELIVERED:

13 December 2019

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Macmillan J

HEARING DATE:

19 September 2019 &
20 September 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Duckett

SOLICITOR FOR THE APPLICANT:

Kingston Lawyers

COUNSEL FOR THE RESPONDENT:

Mr O'Connor

SOLICITOR FOR THE RESPONDENT:

Hunt McCullough Kollias & Co

Orders

it is declared that

Pursuant to sections 90RD and 4AA of the Family Law Act 1975 (Cth) a de facto relationship existed between the applicant and the respondent between 8 February 2014 and 1 May 2017 who were at all relevant times resident in the State of Victoria.

it is ordered that

That all extant applications be adjourned to the Registrars Directions List at 10.30am on 5 February 2020 for the making of all orders and directions to prepare the matter for trial.
Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth), this matter reasonably required the attendance of counsel.

Costs

All questions of costs be reserved for determination on the paper in Chambers.
By 4.00 pm on 17 January 2020 the applicant file and serve any written submissions in support of any application for costs arising out of or incidental to the Amended Initiating Application filed 1 July 2019.
By 4.00 pm on 31 January 2020 the respondent file and serve any written submissions in reply to any applications for costs.
That any submissions as to costs should be limited to 10 pages.

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 Abalos & Halder 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 MELBOURNE

FILE NUMBER: MLC 400 of 2018

Ms Abalos

Applicant

And

Mr Halder

Respondent

REASONS FOR JUDGMENT

On 15 January 2018 Ms Abalos (“the applicant”) filed an Initiating Application in the Federal Circuit Court of Australia seeking orders for property settlement pursuant to s 90SM of the Family Law Act 1975 (Cth) (“the Act”). In his Response to Initiating Application filed on 24 May 2018 Mr Halder (“the respondent”) sought a declaration to the effect that he and the applicant had not been in a de facto relationship for the requisite period or total periods of at least two years required to invoke the court’s jurisdiction to make orders for property settlement and that the applicant’s Initiating Application should be dismissed. Thereafter, the applicant filed an Amended Initiating Application seeking a declaration that she and the respondent had been in de facto relationship for the requisite two year period. The applicant’s application was listed before me for the hearing of the threshold jurisdictional issue.
It is the applicant’s case that she and the respondent commenced a de facto relationship as defined by s 4AA of the Act on 8 February 2014 when she started living with the respondent in the property he rented in Suburb P and that their de facto relationship continued until May 2017. There were two limbs to the respondent’s case. Firstly although he did not dispute that the parties had lived together, he said that they did so as boyfriend and girlfriend. In the alternative, if the Court was satisfied that they had been in a de facto relationship, that the total period of that relationship was less than the requisite two year period.

Legal Principles

De facto relationship is defined in s 4AA of the Act as follows:
(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.
Although the Court may have regard to all or any of the factors listed in s 4AA of the Act, that list is also not exhaustive. As observed by Murphy J in Jonah & White (2011) 45 Fam LR 460 at [39], “[t]he question of whether a de facto relationship exists is a determination of fact (albeit based on findings in relation to a non-exclusive number of statutory considerations)”, and each case must “... be assessed on its own facts and circumstances” (per Coleman J in Barry & Dalrymple [2010] FamCA 1271 at [237]).
If the Court is to make orders for property settlement as the applicant seeks pursuant to s 90SB(a), it must be satisfied that the parties in this case have been in a de facto relationship for a total of two years.

The Evidence

The applicant in this case bears the onus of proving the existence of a de facto relationship and the duration of that relationship. The standard of proof is the balance of probabilities. In applying that standard the Court must take into account the matters in s 140 of Evidence Act 1995 (Cth), although it is not limited to these matters.
The applicant relied on the following affidavits:
(a)Affidavit of Ms Abalos filed 21 June 2018;
(b)Affidavit of Ms B filed 21 June 2018;
(c)Affidavit of Ms C filed 21 June 2018;
(d) Affidavit of Ms D filed 21 June 2018;
(e)Affidavit of Ms E filed 21 June 2018.
For his part the respondent relied upon his Affidavit filed 24 May 2019, the Affidavit of his sister Ms F (“the respondent’s sister”) filed 24 May 2019 and the Affidavit of his employee and friend Mr G also filed 24 May 2019.
The applicant and the respondent were cross-examined at some length and the respondent’s sister was briefly cross-examined. Neither party had given notice that they required the other party’s witnesses to be available for cross-examination. Notwithstanding no notice had been given the applicants witnesses were at court and available but were ultimately not required for cross-examination. Counsel for the applicant did not require Mr G for cross-examination.
Although there were some factual disputes the more significant issue was how the parties interpreted the evidence and what they each said the Court should conclude based upon that evidence. I am satisfied that the respondent and even more so his sister, were trying to characterise the relationship as being that of boyfriend and girlfriend, rather than a de facto relationship due to their concern about the applicant making a claim against the respondent’s business. Notwithstanding that the respondent continued to describe the relationship as one of boyfriend and girlfriend, he did make a number of significant concessions during cross-examination. I will discuss the import of some of these concessions in more detail in the course of these reasons.
Ultimately, the test of whether or not the parties were in a de facto relationship is an objective, not a subjective test and some assessment of the reliability of the parties and their witnesses is required. I am satisfied that in so far as there were factual disputes, the applicant was a much more reliable witness. She gave very detailed evidence and her recall was extremely good. The applicant was a forthright and impressive witness, whereas although the respondent disputed various aspects of her evidence, in particular significant dates, his evidence was uncertain and much less persuasive. The respondent’s Affidavit lacked the detail of the applicant’s Affidavit and although it was filed prior to the applicant’s Affidavit he did not seek to file a further Affidavit in reply. And in cross-examination when asked for specific detail he frequently said that he could not recall, didn’t know or was not sure. In all of the circumstances, when there is a conflict between the evidence of the applicant and the respondent unless otherwise indicated, I prefer the applicant’s evidence.
Disregarding as I must their opinions and comments, the applicant’s witnesses were otherwise primarily focused on the public nature of the relationship. That being said a number of them also corroborated the applicant’s evidence with respect to when she first moved in with the respondent, why she moved out of the house she shared with the respondent in Suburb M to shared accommodation in Suburb N when his parents came to Melbourne, why she moved back to Suburb M after the respondent’s parents left, and when the relationship ended. In most cases, they were able to give evidence with respect to specific dates or at the very least a general timeline.
In comparison, Mr G affidavit lacked detail. For example although he deposed to the respondent having talked to him about “…the difficulties he was having with the Applicant” and his concerns “…about the Applicant’s need to obtain permanent residency through marriage with him” and that he could see that the respondent was “conflicted”, he did not say when it was the respondent allegedly spoke to him. His evidence in these circumstances was of little assistance.

background

The applicant was born in Country H in 1989 and is now 30 years of age. She completed a four year course in Country H and worked as a healthcare worker before coming to Australia. The applicant came to Australia to study on 1 October 2013. She enrolled in a 12 month healthcare course. When she arrived in Australia she lived with a family in Suburb J.
The respondent was born in Country K in 1984 and is now 35 years of age. He moved to Australia in 2006 and started a business. The respondent deposes to his sister “joining” him in the business upon her arrival in Australia in 2009. In 2011, the respondent returned to Country K for some months and during that time was married. The marriage failed and the respondent returned to Australia later that same year without his wife. The respondent and his wife divorced in Country K in September 2017. It is common ground that the respondent did not tell the applicant he was married and that she found out when she discovered the marriage certificate and some photographs of the respondent with his wife.
The parties met in October 2013, shortly after the applicant arrived in Australia and answered an advertisement for a job washing cars for the respondent’s business. She deposes to attending an interview with the respondent on 15 October 2013 and thereafter starting to work washing cars. The respondent deposes to having employed the applicant in October 2013, but unlike the applicant did not depose to the specific date. This is consistent with his general lack of detail and certainty. Although nothing in particular turns on this date the respondent did concede in cross-examination that he had employed the applicant on 15 October 2013.
The applicant deposes that on 28 October 2013, she moved into an apartment in Suburb L. This is corroborated to the extent that the applicant’s witnesses depose to having known the applicant since October 2013 when they started sharing that apartment. Although in his Affidavit the respondent made no mention of having helped the applicant move into the apartment, in cross examination he acknowledged doing so. Unlike the applicant he could not remember the date.
The applicant deposes that she and the respondent commenced a sexual relationship on New Year’s Eve 2013 and that on 8 February 2014 she moved into the property in Suburb P, where the respondent lived with his sister. The applicant’s evidence was once again very detailed and although challenged in cross-examination as to the date when cohabitation commenced, her evidence did not change. Although not necessarily identifying a specific date, all of her witnesses who were not required for cross-examination, confirmed that she had moved out of the shared apartment in February. In contrast, the respondent deposed to having commenced a boyfriend girlfriend relationship with the applicant in or about March 2014, and agreeing to her request to move in. The respondent’s sister deposed that the applicant asked to move in shortly after she started working for the respondent and that the respondent had “..agreed as he was fond of the [applicant] and respected that she was studying hard to improve her prospects and just needed a helping hand.” She further deposed that by about March 2014, the applicant and the respondent had commenced a boyfriend girlfriend relationship, which in my view suggests that the applicant had moved in before the applicant and the respondent commenced any relationship, which is not consistent with the respondent’s evidence.
Although it was submitted by counsel for the respondent that the applicant had not produced evidence, such as receipts in relation to the move or shopping receipts for food she said she had purchased in the Suburb P area, that in my view is not all that surprising and does not alter my view of her evidence. One would not normally expect a party to keep receipts for food shopping and not even the respondent suggested that the applicant had engaged removalist for the move. After weighing up all of the evidence, I accept the applicant’s evidence in relation to this issue.
Despite the level of detail in the applicant’s Affidavit, the respondent made no reference to the date upon which they commenced a sexual relationship, instead as previously referred to he and his sister deposed in general terms to he and the applicant commencing a “boyfriend / girlfriend relationship” in or about March 2014. He also deposed to the applicant having asked to move in to his home in March 2014. Although when cross-examined the respondent’s sister repeated her evidence that the applicant and the respondent were boyfriend and girlfriend, the respondent conceded that he and the applicant had first had sex on New Year’s Eve and that thereafter they regularly had sex and that after the applicant moved into Suburb P, he and the applicant shared a room. The respondent did not dispute the applicant’s evidence that this was a significant step for her to take as she is a devout catholic and it was contrary to her religious beliefs and those of her family.
It is not in dispute that on 3 December 2014 that applicant and the respondent and his sister moved to a rental property in Suburb M. The applicant’s friends helped them with the move. As with the previous property the respondent paid the rent and the utilities, although following the move some of the accounts were in the applicant’s name. The respondent’s evidence was that he put the utility accounts in the applicant’s name so that she could build up a credit rating.
The applicant deposes that although the respondent paid these expenses she worked long hours in the business for which she was not paid and also paid for groceries. It was her evidence that in August 2014, she became involved in marketing the business with the respondent’s sister and that the respondent asked her to do the bookkeeping for the business and suggested that she undertake a degree. Accordingly in October 2014, the applicant started a two year degree at a Queensland university at a cost of $40,000. The applicant enrolled in this course at her own expense. Neither the respondent nor his sister denied that the applicant had been involved in the business, albeit they both played down the significance of the applicant’s contributions.
In December 2014, the applicant and the respondent travelled to Country K for the respondent’s sister’s wedding. In cross-examination the respondent agreed that he had invited the applicant and that “maybe” he had paid for her trip. Although the respondent initially introduced the applicant as his sister’s friend, both he and his sister eventually told the respondent’s family that he and the applicant were in a relationship. It was common ground that for cultural and religious reasons they did not share a room in the respondent’s parent’s home in Country K.
The applicant’s evidence is that in May 2015 she discovered that the respondent was married. The applicant was definite about when she discovered the respondent’s marriage, which she remembered by reference to an operation she said she had in June 2015. In contrast the respondent’s evidence about when this had occurred was less certain. I prefer the applicant’s evidence. I also accept the applicant’s evidence that the respondent wanted to continue their relationship and told her that he would get a divorce, which in my view is consistent with the continuation of their relationship after the applicant discovered the respondent was married.
The applicant and the respondent also attended the applicant’s sister’s wedding in Country H in September 2015, as was the case in Country K for religious and cultural reasons they did not share a room. It is common ground, although somewhat differently described, that the applicant’s father asked the respondent whether he planned to marry the applicant. The applicant deposes that she had told her parents that the respondent was married and that her father was concerned that the respondent had hidden his marriage from her. She also deposed that her father was aware that she and the respondent were living together in Australia.
The parties continued living together in Suburb M until February 2016, when the applicant deposes that the respondent asked her to move out in anticipation of his parents visit. The applicant’s evidence in relation to what occurred at this time was, as with her other evidence, quite specific. For example, the applicant was able to identify the date upon which the respondents parents arrived in Melbourne based upon her wanting to study for and sit her exams before moving to Suburb N.

The respondent deposed as follows:
By early 2016, our relationship was all but over and in February 2016 the Applicant moved out of Suburb M to live with her friends in Suburb N. I was coming to understand that the Applicant’s real interest in me was for marriage so she could obtain permanent residency. I was not prepared to be a conduit for her residency status.
..
Since the Applicant moved out of my home, we have had a cordial but distant friendship. I have travelled to Country K and the UK on my own and the Applicant has travelled to Country H alone. We maintained separate lives.
In circumstances where there is considerable evidence, including the unchallenged evidence of the applicant’s witnesses, which corroborates the applicant’s version of what occurred during the period the respondent’s parents were in Australia, the respondent’s attempts to distance himself from the applicant and their relationship is at best disingenuous and at worst misleading. I am satisfied notwithstanding the respondent’s evidence that the relationship was all but over, that apart from the fact that the applicant was living in Suburb N, their relationship was otherwise ongoing. They continued to spend time together alone and as evidenced by the photographs tendered by the applicant, with the respondent’s family travelling within Victoria and interstate, paid for by the respondent. They also had a sexual relationship. There is also no dispute that the applicant continued to work in the business. Although I am satisfied as deposed by the respondent that he and the applicant took separate overseas trips, I am also satisfied that on at least one of those trips they spent some time together in Singapore before going their separate ways.
Albeit that the applicant and respondent do not agree about the detail, there is no dispute that the applicant moved back into the Suburb M property shortly after the respondent’s parents returned to Country K. The applicant’s evidence is that the respondent asked her to move back in and begged her to stay with him and that they resumed cohabitation. The respondent’s evidence was that in February 2017, the applicant told him she was not happy with her house mates in Suburb N and that she was looking for alternative accommodation. He said he invited her to “bunk down in my home temporarily until she sorted out new accommodation”. In March 2017, the parties travelled to Sydney so that the applicant could renew her passport. Although when it was put to the respondent that they had a nice weekend he said “not really”, he also said he could not say whether he and the applicant slept together. In my view, the applicant’s evidence about their relationship was more reliable and I accept her evidence that she and the respondent had a sexual relationship after she left Suburb N and returned to Suburb M.
The respondent also deposed that he had to “…attend counselling sessions with her which I reluctantly did as I did not want to argue with her.” The applicant’s evidence which for the reasons previously discussed I prefer is that she and the respondent attended approximately 11 counselling sessions. However, in cross-examination the respondent conceded that they attended counselling not as he had deposed to appease the applicant but to see if they could make their relationship work and agreed that if there had been no purpose in attending the counselling sessions because had he deposed the relationship was over, he could have just stopped attending.
The applicant deposes that when their relationship continued to deteriorate, she moved into an apartment in Suburb O. It was also her evidence that, although she moved to Suburb O in April 2017 and they continued to have a sexual relationship until June 2017, by May 2017 they had both agreed that the relationship was over. For his part, the respondent, although his answer was somewhat equivocal, denied that the parties continued their sexual relationship after the applicant moved to Suburb O. When the respondent was cross-examined about there being an ongoing sexual relationship during that period, it was his evidence that their sex life had been failing for some time prior to the applicant moving back into Suburb M. I am satisfied that the respondent’s evidence was tainted by his attempts to down play the nature of the relationship and hence any claim the applicant may have to his business. In these circumstances, I have significant reservations about the respondent’s evidence and preferred the applicant’s evidence. In all of the circumstances, I am satisfied that notwithstanding that the applicant had moved to Suburb O their relationship, including a sexual relationship, continued until May 2017.
The applicant continued to work in the business for some months after the breakdown of the relationship. In June 2017, the respondent deposited $20,000 into the applicant’s account. She said that when she questioned him about this money he told her that “he felt sorry for me over our break up and that this was settlement with me for my actions in the business”.
In his Affidavit the respondent made no mention of having paid the applicant $20,000 in 2017, to the contrary he described the applicant as only ever being paid as a casual employee. I am satisfied that this was another attempt by the respondent to downplay the nature and significance of their relationship and the applicant’s role in the business and that for the same purpose he also deposed that he had paid her to undertake household chores and ironing. In cross-examination, the respondent was somewhat more forthcoming and I am satisfied based upon his own evidence that during the duration of their relationship they viewed the business as being in the nature of a joint endeavour. The most telling evidence in relation to this issue was his evidence that he bought the applicant a car using business funds so that “..we can get the tax benefit.” I do not accept that respondent’s evidence that the applicant may have paid him back for the purchase of the car. In the context of this case this is not something the respondent would be likely to forget.

Section 4AA(2) Indicia Of A De facto Relationship

Counsel for the respondent accepted that the “overall” duration of the relationship was some 3 years to 3 ½ years depending on which version of when that relationship ended the Court accepts. However he submitted that although the parties had a sexual relationship, had commenced cohabitation in Suburb P and the respondent was paying the household expenses, they were not at that time in a de facto relationship as defined by the Act. He further submitted that having commenced cohabitation in order for the relationship to be a de facto relationship it would need time, some mixing of assets and a mutual commitment to a shared life. As Murphy J said in Jonah at [66] referring to parties not living together on a full time basis and maintaining separate residences, the issue “… 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 to them in and, in turn, a finding that there is a “de facto relationship”. In circumstances where parties may never live together and still be in a de facto relationship, I do not agree with counsel for the respondent that the applicant and respondent in this case would have to live together for some time after the commencement of cohabitation before they could be said to be living in a de facto relationship. The duration and extent of their common residence is just one factor to be considered and the Court must also consider the nature of the particular relationship.
I am satisfied that in this case when the parties’ commenced cohabitation in February 2014 they made a mutual commitment to a shared life. The applicant’s evidence about the depth of her feelings for the respondent and her commitment to the relationship was compelling. Although, as previously referred to, the respondent in his Affidavit sought to minimise his relationship with the applicant, in cross-examination he conceded that they were in love, that he had asked the applicant to move in and that they were planning their future together and that even at the very beginning of cohabitation it was a “forever” relationship. The fact that it was contrary to the applicant’s religious beliefs and in those circumstances a difficult decision for her to make in my view highlights the nature of their commitment to a shared life.
Counsel for the respondent further submitted that the applicant and the respondent had maintained their financial independence and that there was no intermingling of their finances. Whilst they may have maintained separate accounts, I am satisfied that the applicant, who was a student for much of the time they were in a relationship, relied to a significant extent upon the respondent for her financial support and that they worked together in the business and that in these circumstances their finances were intermingled. The respondent paid the rent and utilities and generally paid for their travel expenses including airfares. As previously referred to he also purchased a car for the applicant treating that purchase as a business expense. The applicant and the respondent were both young and neither of them owned prior to or acquired any real property during their relationship and in my view the fact that they did not acquire any real property is not significant in all of the circumstances of this case.
Much was made in this case by the respondent of the fact that the applicant moved to Suburb N in late January 2016 when his family came to visit him in Australia. Although he put his case on the basis that this move marked the end of the relationship that was not consistent with his oral evidence. As Murphy J said in Jonah at [65]:
65.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 in a de facto relationship.
I am satisfied that the reason the applicant went to live in Suburb N when the respondent’s parents came to Australia was not because there relationship had ended or for that matter changed in an real sense but because of the cultural and religious sensitivities of the respondent’s family. All other aspects of their relationship continued. They continued to spend time together and the applicant spent time with the respondent and his family both in Victoria and on interstate holidays. The applicant and the respondent continued to have a sexual relationship and they continued working in the business together. It was during this period that the respondent purchased a new car for the applicant and that he paid for and accompanied the applicant to her graduation in Queensland. I am also satisfied that the respondent asked the applicant to move back in with him as soon as his family left Australia. It is in my view, reasonable to infer in these circumstances that the applicant and the respondent would have continued living in the same residence had it not been for his family coming to Australia.
The applicant and the respondent were intimately involved in all aspects of each other’s lives. The photographs tendered by the applicant show them on holidays and in a social setting as a couple. Including during the period the applicant was living in Suburb N. This is also consistent with the evidence of the applicant’s witnesses and there evidence was not challenged. Even the respondent’s witness who deposed to having a close working and personal relationship, albeit he said that the respondent spoke to him about his concerns that the applicant was pressuring him to marry, did not suggest otherwise.
Counsel for the respondent also placed significant emphasis on the fact that the respondent had previously been married. He submitted that in circumstances where the respondent had not obtained a divorce and was resisting what he said was the pressure being placed upon him by the applicant to marry, for he said both religious reasons and to regularise her visa status, that there could in these circumstances be no mutual commitment to a shared life. I do not accept counsel for the respondent’s submission that there was pressure on the applicant to regularise her visa status and prefer the applicant’s evidence that she had a student visa and that she could have extended that visa upon the completion of her degree. Even if there had been pressure on the applicant to regularise her visa status, it does not follow there was not a mutual commitment to a shared life. In my view, what the respondent seeks to do is to establish retrospectively that they could never have had a mutual commitment to a shared life in circumstances where he was already married. The parties had been living together for some 16 months before the applicant discovered that the respondent was married and in my view the fact that the respondent, unbeknown to the applicant was married, does not alter the nature of his commitment at the commencement of their relationship. I have already found that they made a mutual commitment to as shared life when they commenced cohabitation in February 2014. It is also the case that their relationship continued in much in the same way after the applicant discovered that the respondent was still married and their commitment to the relationship and each other was significant and continuing.
Whilst the respondent’s marriage may have caused problems in the relationship and may have even lead to the failure of that relationship, I am not satisfied that the applicant finding about the respondent’s marriage either precluded the possibility of them commencing a de facto relationship or signalled the end of that relationship. Both parties referred me to Cronin J’s decision in Smyth & Pappas [2011] FamCA 434 and in particular his observations with respect to the end of a de facto relationship. His honour said starting at [6] as follows:
6. The process to an ending can be sudden or it can be slow. Either way, the relationship ends and, in my view, that means, permanently. That requires an examination of what the parties were doing and saying over the life of the relationship as well as after it.
…
8.It is conceivable that just as peoples’ lives merge or just join together, there is also a waning of interest in their joint relationship to a point at which the lives become distinctly individual again. The end is not often clear or finite. In Moby & Schulter [2010] FamCA 748, Mushin J observed that under the legislation, the parties were required to live together at some time but there was nothing in the section that required any concept of proportion of time nor that the time be full time in the sense of unbroken periods.
9.Provided the parties have lived together for some period on a domestic basis, they may be found to have been in a de facto relationship. If it is not necessary for there to be a constant common residence right throughout, as the relationship changes….
…
11.I am also not convinced that “indications” necessarily conclusively end a relationship. There can be uncertainty about the future while living apart but the de facto relationship goes on even though the partners are no doing all of the things together that they had previously done. The keeping apart has to have finality about it and that is best seen where the de facto relationship has none of its previous characteristics any longer. For example, some parties whose de facto relationship has ended, continue to parent children and perpetuate financial interdependence but they do so in a way which can only be objectively described as different from what had occurred previously when to a large degree the relationship was a functional one. The ending of the relationship much have a permanence about it rather than a temporary suspension.
I am satisfied that although the applicant moved to Suburb O in April 2017, the applicant and the respondent continued to engage in ongoing relationship counselling until early April 2017, the purpose of that counselling being to see if there was any prospect of them salvaging their relationship. I also accept the applicant’s evidence, which was not directly challenged that by May 2017, they had both acknowledged that the relationship was over. This is notwithstanding that they continued to have a sexual relationship until June of that year. I am satisfied that their de facto relationship although it may have diminished somewhat over time came to a permanent end at that time.
The Court is also being asked to make a declaration as to the duration of the de facto relationship. The Court’s power to make orders adjusting the parties’ property interests depends upon it being satisfied that the period, or the total of the periods of the de facto relationship is at least two years. Although counsel for the respondent submitted that the applicant had not produced any documentary evidence to support her claim as to the exact date when she moved to Suburb P to live with the respondent, I am satisfied having heard her evidence that she did as she says commence cohabitation with the respondent on 8 February 2014. Even if I were to accept the respondent’s evidence that it was sometime in March 2014 in circumstances where I am satisfied that the parties were in a continuous de facto relationship until May 2017 the applicant has in any event satisfied the two year requirement.
I propose to make the declaration the applicant seeks that the de facto relationship commenced when the parties commenced cohabitation on 8 February 2014 and ended in May 2017. The applicant is not specific about a date in May. Assuming that as the parties stopped attending counselling in April 2017 it is likely to be have been early May that would make the duration of the de facto relationship in this case three years and three months. Absent an exact date in May 2017, I propose to treat the end of the relationship as being 1 May 2017.
In these circumstances, it is not necessary to consider whether or not the applicant made a substantial contribution during the relationship.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 13 December 2019.

Associate:

Date: 13 December 2019