BANNISTER & PERGOLESI

[2018] FamCA 888

FAMILY COURT OF AUSTRALIA

BANNISTER & PERGOLESI [2018] FamCA 888

FAMILY LAW – DE FACTO RELATIONSHIPS – where there was a dispute about the duration of the relationship and in particular when it ended – where findings of fact made – consideration of the approach to determining what is, in effect, a jurisdictional question.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Supreme Court (General Civil Procedure) Rules 2015 (Vic)

Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
Cadman & Hallett [2014] FamCAFC 142
Clarence & Crisp [2016] FamCAFC 157
DMW v CGW [1982] HCA 73; (1982) 151 CLR 491
Dupas v The Queen [2012] VSCA 328
Hibberson v George (1989) 12 Fam LR 725; DFC 95-064
Jonah v White [2011] FamCA 221; (2011) 45 Fam LR 460
Moby & Schulter [2010] FamCA 748
Onslow & Onslow [2016] FamCAFC 7d
Re Edensor Nominees Pty Ltd; Ex parte Australian Securities and Investments Commission [2001] HCA 1; 204 CLR 559
Sinclair & Whittaker [2013] FamCAFC 129; (2013) FLC 93-551
Vaughan v Hoskovich [2010] NSWSC 706

APPLICANT: Ms Bannister

RESPONDENT: Mr Pergolesi

FILE NUMBER: MLC 3959 of 2018

DATE DELIVERED: 5 November 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 12, 15-18 October 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Dixon SC with Dr Smith

SOLICITOR FOR THE APPLICANT: Lander & Rogers

COUNSEL FOR THE RESPONDENT: Mr Dickson QC with Mr Atkinson

SOLICITOR FOR THE RESPONDENT: Coote Family Lawyers

Orders

1. Pursuant to s 90RD of the Family Law Act 1975 (Cth), THE COURT DECLARES that the parties were in a de facto relationship from some time in 2008 onwards until it ended in February 2018.

2. All of the interim or procedural orders applications, identified as B, C, D, E, F, G and J in the application filed 5 June 2018 are adjourned to the Judicial Duty List at 10:00 am on 5 December 2018.

3. That there otherwise be liberty to apply in respect of paragraph (2).

4. That paragraphs 1 and 2 of the application for substantive final relief in the application filed 5 June 2018 are adjourned to a date to be fixed for final hearing before a Judge.

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 Bannister & Pergolesi 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 3959 of 2018

Ms Bannister

Applicant

And

Mr Pergolesi

Respondent

REASONS FOR JUDGMENT

1. The primary issue in this proceeding is whether the Court has jurisdiction under Part VIIIAB of the Family Law Act1975 (Cth) (“the Act”). The dispute revolves around the duration and ending of a de facto relationship between Ms Bannister (“the applicant”) and Mr Pergolesi (“the respondent”). The facts around their relationship are hotly disputed and the Court heard from a number of witnesses.

2. The applicant seeks a declaration under s 90 RD of the Act. That determination focuses on jurisdiction. Jurisdiction is a generic term, but ultimately depends upon whether the power to adjudicate has been given to the court, in the case of this Court, by the Parliament. It is slightly wider than that, as was said in Re Edensor Nominees Pty Ltd; Ex parte Australian Securities and Investments Commission [2001] HCA 1; 204 CLR 559; (per Gleeson CJ, Gaudron and Gummow JJ) at [3]:

   …Federal jurisdiction is "the authority to adjudicate derived from the Commonwealth Constitution and laws" and, as will appear, it is attracted in some instances by subject-matter and in others by identity of parties or the nature of the relief sought.

   (Footnote omitted)

   The importance of jurisdiction in this case is not just about the applicant’s pursuit of a declaration under s 90 RD of the Act. She also seeks orders:

   (1)That until further order the Applicant and her sons…have continued use, occupation and quiet enjoyment of the real property situate at and known as (the B Street property)…and all contents, furnishings and fittings therein. 

   (2)That until further order the Respondent be and is hereby restrained from selling, disposing of or otherwise transferring his interest in B Street and/or completing or causing suffering or permitting the completion of the purported sale of (the B Street property)…

3. It is significant in this case that by originating motion filed 4 September 2018, the respondent sought orders in the Supreme Court of Victoria under a special summary procedure designated by the Supreme Court (General Civil Procedure) Rules 2015 (Vic):

   [53.01](1)…where the plaintiff claims the recovery of land which is occupied solely by a person or persons who entered into occupation or, having been a licensee or licensees, remained in occupation without the plaintiff’s licence or consent…

4. By order made by the Honourable Associate Justice Mukhtar on 24 September 2018, and at a time when both parties were represented by legal practitioners, and where the court was told that this Court was to hear not just the issue of the declaration to which I have already referred, but also the dispute about the continued use and occupation of the B Street property, his Honour adjourned the proceedings pending the determination of the matters in this Court.  However, the Supreme Court order shows an acknowledgement by both parties that if the applicant did not proceed with her application for the injunctive relief mentioned in paragraph 2 above, or that relief was not determined, the respondent (as plaintiff) could approach the Supreme Court for the matter to be relisted for hearing.

5. At the conclusion of a number of days of hearing, I heard argument from each senior counsel representing the parties about the applicant’s proposed interlocutory relief. Senior counsel for the respondent made clear that his client proposed to return to the Supreme Court as the acknowledgement had contemplated. That would only be if this Court did not determine the applicant’s proposed interlocutory relief. Senior counsel for the applicant proposed that his client’s interlocutory application be adjourned to be determined on some other day after the jurisdictional question in s 90 RD of the Act was determined. Senior counsel for the respondent strongly opposed that course pointing to the acknowledgement to the Supreme Court order but if that occurs, a dilemma as to jurisdiction may arise.

6. For the reasons that follow, I am satisfied it is appropriate to make the declaration under s 90RD of the Act such that it gives rise to jurisdiction. I find this Court has power to determine the de facto financial cause but I consider it appropriate to adjourn the application for interlocutory relief despite the acknowledgement on the order of the Supreme Court of Victoria and the potential dilemma. I address that now.

7. It is not be appropriate to immediately determine the interlocutory application for two reasons.  First, I am concerned the Supreme Court of Victoria has an extant application on the very interlocutory point that this Court is being asked to determine and there are no extant applications for anti-suit injunctions. Secondly, as I observed in discussion, the applicant has not pleaded the ultimate relief that she seeks with any particularity. I do not understand whether she anticipates that there is a basis for her to retain the B Street property as part of any property settlement order. Even if I overlooked that problem, I have no concept of how the applicant puts her case for any financial entitlement and am hesitant to make a determination based on the discrete evidence that I have heard which was directed to the nature of the de facto relationship.

8. In addition to the matters set out in the second of those two concepts, there is also the vexed question that the applicant seeks an injunction which, albeit she disputes the genuineness of the sale to the contracted purchaser, she does not offer (and in the hearing did not offer) any undertaking as to damages. In cases of this significance where there are third parties involved, an undertaking as to damages is a significant matter for the Court in considering whether to exercise its discretion. The power to make any injunctive order is wide but the order itself must be proper (see s 114(2A) of the Act).

9. Whilst the first of the two questions I raised might be simply answered by saying that once a declaration is made under s 90 RD of the Act, this Court has exclusive jurisdiction to determine all matters, without argument about that, I would not be so bold as to say that it is correct.

10. Section 39A(1) of the Act provides that a de facto financial cause may be instituted under the Act in the Family Court of Australia, and there is no reference to the Supreme Court of Victoria, but s 114AB(1) of the Act provides that the injunctive power in s 114 of the Act is not intended to exclude or limit the operation of a prescribed law of a state that is capable of operating concurrently with that section.

11. Section 114AB(2) of the Act provides that where a person has instituted a proceeding under a prescribed law of the state in respect of which that person would have been entitled to institute a proceeding under s 114 of the Act, that person is not entitled to institute a proceeding under s 114 of the Act unless the first proceeding has lapsed, been discontinued or dismissed.

12. The applicant filed an amended application initiating proceedings on 5 June 2018 which included interlocutory relief whereas the originating motion in the Supreme Court of Victoria was only filed on 4 September 2018.

13. In DMW v CGW [1982] HCA 73; (1982) 151 CLR 491, Gibbs CJ at [503] said that “as a matter of law, [where two courts were superior courts] each court must consider and decide the preliminary question whether it has jurisdiction”

14. His Honour went on to say:

    As a matter of practice…it would be absurd to allow the same question to be litigated simultaneously in two different courts, and a sensible application of the principles of judicial comity should prevent such a course.

15. In DMW, the plurality (Mason, Murphy, Wilson, Brennan and Deane JJ) at [507] while referring to the particular matter as a custody case involving children, said that “the effect of the provisions of (the Act)…conferring exclusive jurisdiction will deny the existence of jurisdiction in another Court to adjudicate on (the child’s) status or custody” within what was then described as a matrimonial cause. In this case it may be that s39B (1) of the Act does confer exclusive jurisdiction to determine what, if any, equitable interest the applicant has in the B Street property, but until such time as there is argument about the exclusivity of the jurisdiction, I do not consider it appropriate to make the orders sought by the applicant in her application, and in any event, the applicant asked the Court not to determine the question. Notwithstanding that, I consider the first issue is whether the Supreme Court considers it has jurisdiction, particularly having regard to the reference I have made to s 114AB of the Act.

16. As the issue may or may not come down to jurisdiction to make the orders sought, the only appropriate course of action is to adjourn that part of the applicant’s application. If the respondent intends to pursue the Supreme Court proceedings, no doubt that court will hear argument and decide whether or not apart from judicial comity principles, it intends to defer to this Court on the basis of jurisdiction. If the latter, the applicant is on notice that much more evidence is needed before any such order should be made.

The S 90RD declaration

1. For the reasons that follow, on the evidence before me, I find that it is appropriate to make a declaration under s 90RD of the Act that the parties were in a de facto relationship from sometime in 2008 until that de facto relationship ended in February 2018.

2. There is also a dispute here because although the respondent acknowledges there was a de facto relationship at some period of time, his view is that it ended in either late 2012 or early 2013. The applicant’s position is that if the Court accepted that to be the case (and she does not) she makes application to bring the de facto financial cause out of time. For the reasons that follow, I reject the respondent’s view as to when the relationship ended and I find that it is unnecessary to determine the application under s 44 of the Act of the applicant accordingly.

The legal aspects

1. Although the parties concentrated on the facts as they saw them relating to the nature and extent of their relationship, the complexity and width of the law needs some explanation because this is about jurisdiction. 

2. The focus of much attention lies in s 4AA(1) of the Act which provides:

   (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.

1. Section 4AA(2) of the Act is curiously headed:

   Working out if persons have a relationship as a couple

2. It is curious because that is only one facet of a de facto relationship. The words which begin the subsection read:

   (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.

   It seems the legislature was endeavouring to give guidance as to how to answer the vexed question.

3. To indicate clearly that that list was not exhaustive, the legislature said in sAA(3) of the Act:

   (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. The Evidence Act 1995 (Cth) (“the Evidence Act”) provides that in any proceeding where it is necessary to find the facts to decide whether a fact or question has been proved or not, the Court must be satisfied on the balance of probabilities. To the extent that it might be thought the consequences of a finding of the existence or otherwise of a de facto relationship has serious consequences, the Court should approach those facts cautiously but s 4AA(4) of the Act provides a much more relaxed approach that seems to waive away that caution. The section reads:

   (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.

5. The existence of other relationships is also not definitive of whether there is a de facto relationship because s 4AA(5) of the Act provides that such a relationship can exist “even if one of the persons is legally married to someone else or in another de facto relationship.”

6. In this multi-faceted case, many of these concepts arise.  For example, the respondent thought that the ending of the de facto relationship with the applicant was indicated by their sexual relationship having concluded. The provisions above would indicate that that is a relevant, but not decisive, factor. For her part, the applicant thought that once the relationship seemed cemented by conduct in some way, she could retrospectively conclude that the starting date was more or less when they met. That too cannot be the case.

7. Senior counsel for the respondent agreed that the Court should approach the matter on the basis of an examination of all the circumstances of the relationship, in other words to identify what those circumstances were to see whether the parties had a relationship as a couple living together on a domestic basis (assuming that the word “genuine” in s 4AA(1) of the Act adds nothing to the definition) and then to decide whether the relationship was for more, or less, than two years and when it then ended. Not only is the Court obliged to try and work out what the parties did, but also to find a meaning of “ended”, “domestic basis”, and “couple”.

The approach to the evidence

1. Although considerable effort had been put into preparing lists of objections to evidence, and presumably because of s 4AA(4) of the Act, all counsel agreed that I should give the evidence such weight as I considered appropriate rather than deal sequentially with admissibility. That however leads to difficulties where a broad-brush statement is made by a witness in an affidavit and there are no facts to support the assertion.

2. As will be seen below, I remain perplexed as to how some of the statements of these witnesses could be relevant, even taking into account s 4AA(2)(i) of the Act, and in several of the instances, I have given the evidence little weight.

The credibility of the witnesses

1. Also in this case, the credibility of the parties and the witnesses loomed large. It has become necessary to be critical of the truthfulness of the applicant but in contemplating all of the evidence, I am satisfied that there are sufficient uncontroversial facts here to determine what is needed to establish the requirements of s 4AA(1) of the Act. That is not to say that the controversial issues ought not be canvassed.

2. Where versions of events differ, the determination of which is the more probable is often said to be affected by the credibility of the witness. The dictionary to the Evidence Act defines “credibility of a witness” as:

   The credibility of any part or all of the evidence of the witness, and includes the witness’s ability to observe or remember facts and events about which the witness has given, is giving or is to give evidence.

   That explanation therefore focuses on more than just truthfulness.

3. In Dupas v The Queen [2012] VSCA 328, the Victorian Court of Appeal said:

   [265]  …the ability to observe or remember facts and events can only be a reference to reliability.

   That becomes important here in respect of virtually all of the witnesses. Senior counsel for the respondent urged that I make adverse findings against the applicant on the basis of her cavalier attitude to evidence she gave in this Court in 2008 relating to her former marriage, but also her approach to the commerciality of a mortgage provided to the respondent over her rented former home, her refusal to answer questions about her receipt of Centrelink benefits while she was living, as she would say, in this relationship, and, more recently, the movement of her capital to her sons to hide it from the Court and the respondent. These were all said to be indicative of someone with no credit and as such, on controversial factual issues, she ought not be believed.

4. However, for that submission to have weight, it must follow that the respondent’s version of the controversial facts had to be believable. It was submitted that there could be no credit finding against him as he was not challenged on credit. Thus, it was submitted, the Court should find the respondent a witness of the truth to be preferred over the facts asserted by the applicant. 

5. The difficulty with the submission on behalf of the respondent is that it ignores the question of his own ability to observe and remember controversial facts.  The respondent’s memory was generally poor; he would say it was as to dates, but it went further than that.

1. The respondent’s recollection of why he did things was very vague and he generally explained that he participated in events simply because of the persistence of the applicant, his own generosity, or because it just suited him at the time. I do not accept that simplistic answer.

2. Unlike the precision of the evidence of the applicant as to events, and who was present and why, the respondent was unable to adequately explain why he appeared frequently in public with the applicant. When pressed about why he attended charity events for example, he was content to say that he was a generous man. It leaves the question of why he would attend those events with the applicant, where she was portraying them as a couple if indeed, from his perspective, the relationship was at an end.

3. Truthfulness is often easily established by reference to the evidence which is either corroborated or not by witnesses and documents. The applicant was caught out lying on a number of occasions. Her evidence in respect of other critical issues was corroborated and I accept most of the events she recorded in her evidence were correctly described. Her undoubted dishonesty in relation to her banking was clear, but her statements in the earlier proceedings in this Court, relating to a dispute with her former husband, could be open to interpretation. What she told the Court in previous proceedings that began in 2007 was supported by the respondent at that time in any event. He was pursuing a relationship with the applicant at that time, but now, in hindsight, maintains that it was not a committed one such that the Court could now not find it as evidence of a de facto relationship. I also reject that simplistic assertion.

4. The second limb of credibility has to be assessed on the basis of motive, as well as the dimming of memory because of time. The respondent now has a motive to put a different explanation on the facts asserted by the applicant, but he also had a motive at the time because he wanted a relationship with the applicant, who in turn, wanted to rid herself of the impediment of litigation with her then husband. Thus, both parties had a motive to be misleading or at least cute, about what they were doing.

5. The respondent resists the declaration that he was in a de facto relationship for the period claimed by the applicant. Ultimately, these issues have to be assessed objectively. Each had a different perspective. The relationship could be seen to be superficial, as each was provided with what they were seeking, but one of the aspects of a de facto relationship is the degree of commitment to a shared life. When people do not convey clearly what they are thinking to each other, or alternatively, say something but then do not act upon it, the Court is left with a situation where it has to assess whether the things were said in anger, or whether it was all simply part of the changing nature of the relationship. Here, I found the changing nature of the relationship to be part of the vicissitudes of the parties’ lives.

6. In this case, I found the applicant’s witnesses generally truthful and having accurate memories. There was strong criticism by senior counsel for the respondent of the applicant’s 18-year-old son Mr C. That criticism relates only to his conduct in respect of an incident that led to the respondent losing his patience, and after both parties agree that the relationship had come to an end.  It gave rise to an intervention order being made against the respondent and his exclusion from his home. Mr C could have averted that confrontation but, with his mother’s connivance, he exacerbated it.  Apart from that appalling incident, the evidence about his earlier years and his views of the respondent were not controversial. 

7. For his part, the respondent called a number of witnesses. One group of his friends was focused on a post-lunch confrontation between the applicant and the respondent in June 2018 so it was after both agree that their relationship had ended but they were still in the one residence. This was after a long lunch and the applicant’s evidence was that the men returned home drunk. That does not mean they did not observe and hear what they alleged, but the timing of the event (and its post-lunch character) enable me to find that this incident fitted into the category of an angry spat between two people who were, at that time, very unhappy with one another. To behave like that in the presence of the respondent’s companions did little credit to either party, but whether it arose out of the changing nature of the relationship or the general unhappiness of the applicant having to put up with the respondent returning from a long lunch with his friends in a drunken condition, I am unable to say. I propose to give the incident very little weight. 

8. Another example of the problem was that the respondent relied upon evidence from his housekeeper.  This was a person who no doubt had dealings with both parties on a daily basis. The evidence was so limited in any probative sense that it was of little value. The housekeeper was brought in to describe the nature of the parties’ relationship and she spoke little English. She required an interpreter. When I asked her who was responsible for the organisation of meals which she prepared, she said that it was the applicant. This was an example of the parties taking a relatively small snapshot of time out of a long relationship. In a changing relationship where the respondent was generally unhappy it does not necessarily corroborate the ending, or the end of, the de facto relationship. It did little to assist. 

9. The respondent also relied upon a Mr D. Mr D is a real estate agent.  His evidence was precise, confident and drawn from notes that he had taken at the time of the events. Whilst the acceptance of his evidence meant that the applicant’s version of what was happening to the potential sale of the respondent’s apartment became doubtful, I consider it did little to assist me other than to confirm that in 2016, the relationship was not only changing, but generally unhappy. This evidence showed the respondent unilaterally chose to sell the residence but did not consult the applicant. While he said there was evidence to the contrary, namely that there was discussion, I do not accept that. Nothing in the evidence of the witness confirmed the applicant was preparing for a sale. There was evidence of a potential purchaser signing a confidentiality agreement and the applicant referring to that being applicable to an “appraisal” but even that implausible explanation does not mean she had discussed leaving the property upon a sale. The applicant continued to live in the residence after 2016 almost as if she was oblivious to the unhappiness of the respondent. Time passed without the respondent acting upon his dissatisfaction with the relationship and I find that gave the applicant every right to think that the relationship was not ended.  I accept her evidence that she had not contemplated it was ending.

10. There is no better example of that than the respondent’s own words. In his affidavit he said:

    [20] In late 2012 / 2013, I decided to move out of the master bedroom, and my sexual relationship with [Ms Bannister] ended once I moved into the spare bedroom. [Ms Bannister] and I have not had sex since that time. I regarded our relationship as irretrievably broken down once our sexual relationship ended.

    [21]In the months leading up to our separation, I told [Ms Bannister] on a number of occasions, that if she kept instigating arguments, our relationship would end. [Ms Bannister] did not alter her behaviour, and our relationship subsequently ended. It has been difficult for me to identify a particular date because things between us deteriorated slowly, but almost immediately after she moved into the [B Street] apartment in early 2012 (especially in circumstances where she later refused to sign a  Financial  Agreement  after  she  had  previously  agreed  to  do so). However, by the end of 2013, [Ms Bannister] and I were separated under the one roof, and she was well aware of this as I had communicated it to her on several occasions.

    His perception was different from that of the applicant, yet the relationship continued on for a number of years.

How to approach all of these problems?

1. In Sinclair & Whittaker [2013] FamCAFC 129; (2013) FLC 93-551, the Full Court in looking at the component parts of s 4AA of the Act said:

   [54] Thus, whether or not a de facto relationship, as defined, exists will depend upon an assessment of all of the circumstances of the relationship, each to be given the weight the court thinks appropriate. 

   [55]In Lynam v Director-General of Social Security (1983) 52 ALR 128 at 131 (Fitzgerald J) said:

   Each element of a relationship draws its colour and its significance from the other elements, some of which may point at one direction and some in the other.  What must be looked at is the composite picture.  Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error.  The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.

2. Significantly, in Sinclair (supra), at trial, as in the present case, the parties used language such as that they were, or were not, in a de facto relationship. The Full Court said:

   [65]Many of the submissions put by the appellant in the appeal sought to place significant, if not determinative weight, on particular circumstances.  Absent the identification of an error on the part of the trial Judge it is difficult for such submissions to succeed.  Merely because another judge may have weighed the circumstances differently does not, of itself, demonstrate error.

3. The last sentence referred to is relevant here because a variety of witnesses used the term interchangeably. Some referred to just “relationship” whilst others referred to “de facto” as some form of identification. It is much simpler for the Court to insist that parties and witnesses give descriptions of what they saw, leading to a conclusion, but to say someone was a “de facto” of another person, is apt to mislead unless the witness has some concept of a definition acceptable to the law. That question raised its head in this case. 

4. In Sinclair, the Full Court faced a ground of appeal that the appellant had other “significant relationships” whilst having a relationship with the respondent.  That occurred here with evidence from the respondent about his other (and perhaps contemporaneous) relationships. The Full Court said:

   [74]The trial Judge, not having accepted that the appellant was engaging in significant relationships with other women at the same time as that with the respondent, cannot be criticised for failing to give them adequate consideration.  The determination of that factual issue was quintessentially a matter for the trial Judge. 

   I deal in these reasons with the evidence of Ms E, but the respondent also had a liaison with other women. The only finding I can make about that evidence is that it was activity if a clandestine nature and restricted mostly to sexual activity. Whilst that went on, the respondent continued to portray his relationship in public with the applicant. The evidence of these clandestine activities has no significance and I accept the applicant’s evidence that she was emotionally hurt when she found out.

5. In Sinclair also, one ground was that the trial judge erred because it was said that the applicant was required to prove a relationship as a couple living together on a genuine domestic basis.  That led the Full Court to look at what Murphy J said in Jonah v White [2011] FamCA 221; (2011) 45 Fam LR 460. The Full Court quoted his Honour saying:

   [92]In both written and oral submissions the appellant submitted that the facts did not demonstrate “the manifestation of coupledom” or that there had been “the merger of two lives”. These phrases emerge from the decision of Murphy J in Jonah v White [2011] Fam LR 460 at 471 where his Honour said:

   [60] In my opinion, the key to that definition is the manifestation of a relationship where “the parties have so merged their lives that they were, for all practical purposes, ‘living together’ as a couple on a genuine domestic basis”. It is the manifestation of “coupledom”, which involves the merger of two lives as just described, that is the core of a de facto relationship as defined and to which each of the statutory factors (and others that might apply to a particular relationship) are directed.

   …

   [66] 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”.

6. The description in Jonah came under scrutiny in Sinclair where the Full Court said:

   [93]It is important to note that his Honour’s comments were made in the context of the facts of the matter that was before him.  It is clear from reading the judgment as a whole that his Honour had the statutory definition firmly in mind at all times.  When dismissing the appeal from his Honour’s decision the Full Court did not disagree with his Honour’s statements of principle but did not apply anything other than the statutory test (Jonah & White (2012) FLC 93 – 522). At 86,682 their Honours said:

   It is immediately apparent that the touchstone for the determination of whether a de facto relationship exists is the finding that the parties to it are a “couple living together on a genuine domestic basis”.

7. That in turn led to the Full Court saying:

   [94]Comments made in the course of discussing facts are not to be elevated to the status of the provisions of the statute or substituted for the statutory test.  This is because, taken on their own, they either add nothing to the statutory test or, if they do, they are adding an impermissible gloss.  Thus it is not appropriate to consider the facts other than in the light of the statutory test.

   Relevantly here, their Honours said:

   [95]It is also to be remembered, perhaps making the task of a trial Judge applying s 4AA more difficult, that the nature of relationships and commitments for both married and unmarried couples find expression in many different domestic arrangements. The application of the statutory criteria to reach a conclusion must be done judicially. It is difficult, absent error, for an appeal court to interfere, even if it would not itself have reached that conclusion.

   Those words resonate here. Every relationship is different and the “domestic” part of a relationship means different things to different people. For example, is domesticity determined by cooking, cleaning, ironing and lawn mowing? If so, today, experience tells us in affluent relationships, those activities, as in this case, are done by hired help. Is domesticity determined by watching television together? If so, that was not the modus operandi of these parties. The applicant and respondent were very socially conscious people but part of that, and a very persuasive part of the evidence here, is that they gave the public appearance of living together in the one residence and doing many activities together whilst also maintaining their independence.

8. Senior counsel for the applicant drew my attention to Onslow & Onslow [2016] FamCAFC 7 which discussed Sinclair. In a separate judgment but where Murphy J agreed with the outcome of the appeal as determined by Ainslie-Wallace and Austin JJ, his Honour made no reference to Jonah so one must conclude that he agreed with what was said in Sinclair. What his Honour did say was:

   [97]The question of whether an admitted pre-existing de facto relationship broke down finally after 1 March 2009 is a question answered by elements different to those applicable to deciding if the relationship has ever existed. In the latter, an essentially objective analysis is applied to the circumstances established by evidence (which may be informed by reference to the essentially objective circumstances listed in s 4AA(2)). In the former, the circumstances that might inform objectively a decision about the existence of a relationship are replaced, or at least augmented, by the subjective circumstances of that particular relationship which is admitted to have existed as the defined type. Put another way, the question is not whether a de facto relationship was in existence at the relevant time or times; the question is whether this particular relationship continued to exist at that time or times.

   (original emphasis)

9. The observation of Murphy J is particularly relevant here when one contemplates an unusual relationship between two people one of whom at least, is a public figure.

10. In Cadman & Hallett [2014] FamCAFC 142, the Full Court considered what Rees J said as the trial judge about Full Court authorities on the issue of one party communicating to the other an intention to end the relationship. That was taken by Rees J from Price & Underwood [2008] FamCAFC 46, but an examination of what Rees J was talking about related to a divorce and the need for an applicant to communicate the ending of the marriage. I am unconvinced that the authority is of assistance because it is a different concept relating to irretrievable breakdown whereas the concept I am contemplating is the “ending” of the relationship.

11. The ending of a relationship and either the communication of that fact or the overt actions to confirm it, was a subject of consideration  in Hibberson v George (1989) 12 Fam LR 725; DFC 95-064, where Mahoney JA said:

    But where one party determines not to “live together” with the other and in that sense keeps apart, the relationship ceases…

    His Honour went on to say that:

    It may be that that determination to live apart is made to enable a party to decide whether or not the relationship should continue.

    As I understand what his Honour was saying, it is the determination to cease the lifestyle and the fulfilment of that determination that brings about the end of the relationship because relationships change. I am not entirely convinced that that is the same as a determination to end the relationship. In Vaughan v Hoskovich [2010] NSWSC 706, White J when considering in a deceased estate dispute whether the plaintiff was in a de facto relationship said, rather aptly to this case as I adopt his Honour’s view:

    [49] at least if the partners remained living together, the fading of love or romance need not spell the end of the de facto relationship.

    His Honour thought it unnecessary to explore that question in that case because the parties remained in what he described as a “loving relationship” until the death of the deceased.  But His Honour then went on to say:

    …the real question is how much togetherness is required before it can be said that parties live together as a couple.

12. Section 4AA(1) of the Act refers to “living together” and that is similar to the New South Wales legislation that was under contemplation in the authorities of that state. If a party determines not any longer to live with another, it is not so much the communication of that fact that is important, but rather that the intention is acted upon by keeping apart. That adds a further complexity however, when one tries to define “living together”. Some assistance is gained from s 4AA(2) of the Act, which refers, as a circumstance, the nature and extent of their common residence. Living together must not mean co-tenants or friends but rather that the parties considered this residence to be their home. That means that one of the parties may not be the legal owner but considers it be a place of common residence (as an example, see Clarence & Crisp [2016] FamCAFC 157).

1. The authorities of the Family Court of Western Australia are also not necessarily of much assistance because the legislation is different to that of the Commonwealth in that it refers to living together but then adds the words “in a marriage-like relationship”.

2. In Moby & Schulter [2010] FamCA 748, Mushin J at [181] observed that even serious family violence did not inevitably bring a relationship to an end, but so too, relationships change as they progress. Change alone such as a loss of interest in communicating, lack of affection and the cessation of sexual intimacy relationship cannot be the things that bring a relationship to an end by themselves. In my view, what the Court should be looking for in this particular case, is the ending of a commitment to live as a couple examined objectively so that, to the outside world, the parties no longer look like they are living together as a couple as they previously had been.

The parties

1. The applicant in these proceedings is Ms Bannister. She is 53 years of age and describes her occupation as “housewife” although the evidence would tend to suggest she considers herself a media personality. Before entering the relationship with the respondent, the applicant was married to Mr F. From that relationship there are two children but she also has an older child from an earlier relationship. Two out of these three children are adults. The third child is 16 years of age and still at school.  Her present source of income is the rent she receives from the home that she took as part of her property settlement with Mr F. Apart from that, the applicant is, and has been for a long time, dependent upon the financial support of the respondent.  Those matters become relevant as circumstances of the parties relationship.

2. In my view a significant circumstance here is the portrayal by the respondent that he and the applicant were living together as a couple (albeit at times in different locations) but what was seen by the outside world was his appearance of doting upon the applicant’s children as if they were his own.

3. The respondent is Mr Pergolesi. He is 71 years of age and described his occupation as “investor”. His evidence is that he is a wealthy man. He agrees he financially assisted the applicant up until early 2018, but he stopped then because she commenced this litigation. He too has adult children from his previous relationship who, although not witnesses, featured in the proceedings because the applicant produced photographs over the years to show they were involved in what the applicant described as family events.

4. The respondent called evidence from a Ms E who resides in Queensland to say that they have been in a relationship since March 2016. That was a resumed relationship from some years earlier and its resumption arose out of conversations between them in which the respondent confirmed to Ms E that he had “concluded” his relationship with the applicant.  As I discussed when I contemplate the evidence of Ms E, she was unaware of how the respondent appeared in public at a variety of events with the applicant and as such, her evidence is of limited value.

When did the de facto relationship commence?

1. Like most people, the applicant and the respondent meant and socialised together for some considerable time. The relationship began after the applicant’s marriage broke down. The respondent began to assist her by referring her to his own previous family lawyer Mr G. There were undoubtedly dinners and social events around that time but that is true of many tentative relationships.  Indeed, as an indication of his generosity, the respondent signed the requisite costs agreement with Mr G but so too did the applicant. There was no doubt however that the respondent was going to pick up the expense. 

2. In 2007, the applicant had begun proceedings with Mr F and she had then told the Court that she had separated from him under the one roof from January 2007.  In June 2007, she was pursuing Mr F for spousal maintenance and sole occupancy of the Suburb H home.

3. In respect of the proceedings with Mr F, the respondent wrote material for her and assisted in the preparation of her affidavits and she spent time at his inner-city apartment working on those proceedings and also attending Mr G.

4. The applicant pointed to a dinner on 14 February 2007 during which the respondent gave her some roses, but bearing in mind the definitions earlier set out in these reasons, that occasion could only be seen as part of this tentative relationship development having regard to what was otherwise going on with Mr F.

5. The respondent’s evidence was that until the middle of May 2007, he and the applicant only saw each other “spasmodically”.  He said he was continuing to see other women because he did not regard himself in a committed relationship. Albeit there is some doubt in my mind as to the precise timing of those events to which the respondent referred, I am satisfied that he too was feeling his way in this tentative relationship with the applicant as indicated by the roses.

6. The significance of May 2007 was said to have been the time at which a sexual relationship began. The applicant said this occurred when they went away to J Town. By the time that event occurred, the family law proceedings had not commenced so there is little doubt in my mind that, at best, the applicant and the respondent were boyfriend and girlfriend. 

7. Even after the family law proceedings with Mr F commenced, the applicant was staying occasionally with the respondent.

8. Once the proceedings with Mr F commenced, the involvement of the respondent in the applicant’s life became more significant.  Mr F remained under one roof at Suburb H until October 2007 at which time, he was removed by an intervention order.  Until that time, the applicant conceded that the respondent had not been staying at Suburb H.  Thus, her evidence about dropping children at school and spending time with the respondent might be right, but the reality is that they could not have been living together as a couple at that time.

9. In relation to the marriage and proceedings with Mr F, there were parenting issues and to enable the applicant to spend time with the respondent, she arranged for Mr F to have the children on the weekends.  Indeed, after October 2007, Mr F had the children for some time each week.  There were interim property orders of the court in relation to the F marriage and an auction of Suburb H took place in September 2007 but the property did not sell.  It was at that point that a decision was made by the applicant to buy out the interest of Mr F and the respondent supported that.

10. Albeit the applicant took a rather quaint view that in her culture, one backdated the relationship to the beginning of when the parties met, she told the Court in the F proceedings by affidavit that she was not in a “De facto” relationship with the respondent. It will be remembered that the first sexual intimacy between the applicant and the respondent was said to be at J Town in May 2007 and even from the point of view that those acts cemented the relationship in some way and might be deemed by the applicant as the starting point for the de facto relationship, she cannot have it both ways. 

11. During the latter part of 2007, the applicant attended the respondent’s 60th birthday and he also began to stay overnight at Suburb H where he brought an overnight bag. She went shopping with him around the middle of 2007 and he bought her presents so that when she came to his apartment, she did not have to bring such things as cosmetics. In November 2007, she and the respondent attended the races in a group with friends. They enjoyed each other’s company on Melbourne cup day in November 2007.  On Christmas day in 2007, both parties attended a family lunch of about 30 people.  All those activities however are indicia of a boyfriend and girlfriend type relationship in the context of the sworn evidence that she gave the Court in December 2007.

12. The applicant had good reason to deny a de facto relationship with the respondent throughout 2007 because she was seeking spousal maintenance and exclusive occupancy of the Suburb H home from Mr F. Mr F was bitterly complaining about the fact that she was in a relationship with the respondent and both applicant and respondent were keen to deny it.

13. Around April 2008 however, it came time to finalise the arrangements relating to Suburb H which had then not sold. The applicant had no income of substance at that stage and was unable to pay the mortgage so the respondent assisted her. In April 2008, the respondent arranged for the completion of a commercial agreement under which he provided the necessary amount to discharge the mortgage on Suburb H and pay out the amount due to Mr F. It was the view of the applicant that this was an arrangement that was never intended to be repaid but the respondent saw it differently on the basis that he was not committing himself to any relationship and in case of necessity, he could claw the money back. The conflict in the evidence here is easily resolved. Albeit the applicant says that the respondent encouraged her, and he denies it, she acknowledged that she claimed the interest on this agreement in her taxation return. I am satisfied that after the agreement was put in place, and for a number of years, the applicant claimed the deductions on her tax return albeit it is common ground that payments were never made to the respondent.  In this curious arrangement, there is no evidence as to why that was so and whether it was done to defraud the Australian Taxation Office.  The applicant declined to answer questions about those sorts of matters.

14. For a number of years, and notwithstanding the suggestion of the applicant that the generosity of the respondent was such that he was supporting her, she was also claiming Centrelink benefits.  She did not deny that she disclosed her status as a single person to the relevant authorities, but she certainly did not tell them that she was living with the respondent in 2007.  When pushed about that issue, she maintained that the respondent gave her “permission” to stop that late in 2010. 

15. The fact that she wanted her own independence and was prepared to lie to the relevant authorities does not detract from the fact that from around May 2008, most of the issues associated with the F proceedings were concluded and the applicant was committed to a relationship with the respondent.

16. Almost as if the shackles of the F marriage had been taken away, the applicant and the respondent holidayed together in Queensland in the respondent’s apartment in February and March 2008.  They went to Asia to a health retreat in June 2008 and back to Queensland in September 2008. They went to China in December 2008.

17. To the extent that each of them had an apartment or house at that time throughout 2008, I accept the evidence of the applicant that they were together in either of their respective residences or away travelling together and that for much of the time, the applicant’s children were with her.

18. I accept the applicant’s evidence in respect of this period because of what I earlier described about credibility. In my view, the respondent’s evidence was vague and uncertain.  It is more likely than not that the applicant’s evidence is correct.  There are ample photographs of the applicant and the respondent together from January 2008 and whilst photographs can be manipulated to portray a picture at a particular moment in time, many of them show the parties together including such things as the applicant’s son’s school formal event in May 2008 and his debut celebration in that same month. It cannot be coincidental that there was a consistency of such events thereafter including photographs of the couple together which indicated an intimacy.

19. In August 2008, the parties attended the debut of the respondent’s son and later that year, both attended the birthday celebration of the applicant’s mother. There were photographs of picnics and other family-type events including those which indicated the respondent’s involvement with the applicant’s children.

20. All of these events might indicate a boyfriend and girlfriend type of relationship but as 2008 wore on after the resolution of the issues associated with Mr F, I am satisfied that the parties were virtually inseparable.  All that indicates a commitment, particularly having regard to the generosity shown by the respondent and his attention not only on the applicant but also on her children. The applicant also purchased gifts for the respondent and when challenged about that on the basis that she had no source of income, she volunteered that she purchased such things as small items and cakes.

21. Setting the commencement date for the de facto relationship can only be part of the whole exercise when a relationship is viewed historically and retrospectively but a clear picture emerged that at least by the middle of 2008, the applicant and the respondent were living together as a couple in either of their respective residences or whilst they were travelling together.  Accordingly, I find that the relationship was a de facto relationship from around the middle of the year 2008.

The applicant’s diaries

1. Before venturing into what happened after 2008, I want to deal with a contentious issue that goes predominately to the credibility of the applicant and which was also said by the applicant to be a corroboration of her evidence of the nature of the relationship with the respondent. This relates to her diaries which were requested by the respondent for inspection prior to trial.

2. Two issues arise out of these diaries. The first is whether they were comprehensive and the second was whether they corroborate either party’s evidence.

3. The applicant said that she put events on her mobile phone and it populated to her computer. A printout of the computer was said to be “screenshots”.

4. The applicant confirmed that she had provided the complete diary for inspection by putting it all on a USB stick. It did not take much to show the inaccuracy of that statement.

5. What was provided on the USB stick was not entirely clear in the evidence. The applicant produced what was described as an “index page” presumably for the purposes of highlighting the particular events that she recorded in her diary rather than have the whole diary trawled through. When asked about how this “index” came about, the applicant said that a woman named Ms K assisted her. I turn to the evidence of Ms K later in these reasons, but around the critical period of time from the respondent’s perspective, there is a reference to “computer malfunction/corrupt data – lost all or most entries or parts thereof – 2013…”. When this was drawn to the applicant’s attention she very quickly distanced herself from it and said that this was done by Ms K and that it was not correct. She said it was her fault that the index had not been changed.  When asked whether there had been lost entries in the diary, she simply said that there were “Apple problems” and that she did not know how the diary worked.  She was asked whether she was suggesting that Ms K had corrupted the diary and she said that it was a possibility. This arose out of what is undoubtedly unhappiness of the applicant with Ms K, who was purporting to assist her, but later became a witness for the respondent.  I have considerable unease about the evidence of Ms K even though she was not challenged about what she said in her affidavit. That unease arises from the evidence relating to the diaries as given by the applicant. 

6. The applicant said that notwithstanding she had noticed the error, she still attached the pages in the annexure book.  The curious feature about that is that it would hardly have been helpful to her cause to do that if she had something to hide.

7. Eventually, the applicant produced a lot more material. She appeared not to have looked at it because when it was examined, there were periods in which there were no entries. The applicant attributed that to the fact that she was busy involved in the media presentation.

8. Significantly, bearing in mind the respondent’s view about the ending of the relationship, the diary entries showed that in late November 2012, the applicant did record problems, most of which seem to be about what she thought was inappropriate behaviour by the respondent. When asked why she made those entries, she said that she had wanted him to be at home and that he had taken himself away “for a week” to punish her and that upset her. In January 2013, she noted “teething problems” with the respondent and that he had been going out without her during the day and she was irritated. There is no doubt that the respondent was not talking to her at that time. Despite that, the parties still did things together and I refer to them later but in the mind of the applicant, the respondent was spending more time with his male friends and it “irritated” her. That seems common in many relationships but it is not conclusive of the end of those relationships.

9. The applicant was carefully cross-examined about this period and she described the respondent’s lack of respect for her wished, but she added that it stopped soon after. She denied this as a “down” period in her life. She was aware that the respondent had written down his own note that recorded his perception of the relationship as “extremely rocky” and she acknowledged having seen that note. It was put to her that this was consistent with real trouble in the relationship at the end of 2012 but she denied that. She saw all of this as just part of the rhythm of life, much of which seems to have started with the respondent’s request that she execute a financial agreement. As a result of the way the respondent continued with the relationship, this was not evidence of an end to it.

The diaries

1. The diaries are not particularly helpful. There is a significant gap where no recordings were made. The early parts of the diary which coincide with the start of the relationship show affection, excitement and care where the parties were doing things together. There is the period in late 2012 – early 2013 when there is no doubt the respondent was unhappy with the applicant and she recorded some of those things. Thereafter, the diary enters into the phase of her involvement in the media presentation so it is hard to know what perception she otherwise had of the respondent. The objective evidence shows what the parties were doing together during that period anyway. Towards the end of that period, the entries simply indicate that the excitement and affection was not the same as those recorded at the start of the relationship. Nothing much turns on all of this however because of the objective evidence about the parties’ appearances together. I find in the circumstances that the diaries do little to assist in corroborating either party’s version about the nature and extent of the relationship particularly after 2013.

2017

1. Certainly by 2017, the applicant’s diary was again being used extensively. On 2 May 2017, she wrote that the respondent and his friends had come home “completely drunk” and she went on to describe what they were like. She said she questioned the respondent “many times” if he was “sniffing coke” in the apartment when her children were present and the respondent denied it. In isolation, that entry might throw some light on not only a dysfunctional relationship where there was lack of respect, but also one where the level of tolerance of each other had dropped.  However, only days later, the diary records visiting the respondent’s friend Mr L and his partner Ms M. In her trial affidavit, the applicant made reference to that visit to see Ms M’s newborn son. The two diary entries are inconsistent when contemplating whether or not the relationship between the parties was in trouble, but the respondent did not challenge that they did go to see the baby.  Indeed, only weeks before, there was text conversation between the applicant and the respondent, where the applicant asked the respondent what he thought of buying a rocking horse for $199 for the baby and the respondent wrote “Great.  Different.”  She suggested in the alternative that they buy a “big stuffed toy” and he responded to that by saying “rocking horse”.  These visits and conversations are all part of the interesting vicissitudes of life and indicate that the spat between the parties over her concerns about drunkenness or drugs was just another facet of the relationship around that time.

1. In terms of the credibility of the applicant arising from the diary, I find that notwithstanding the respondent’s assertion to the contrary, it has not been manipulated or doctored by her. I draw that conclusion from the fact that she ultimately produced “screenshots” and there is no evidence to reject her assertion that there were problems with the “Apple” system. The “index” to which I earlier referred, although produced by the applicant, was undoubtedly also undertaken by Ms K and the applicant readily distanced herself from some of the remarks which would tend to indicate if true, Ms K was a manipulative person.

2009 – 2012

1. I return then to the chronology. Over the period from the middle of 2009 until the acquisition of the CBD apartment by the respondent, they were together most of the time. They travelled overseas and interstate.  In December 2010 to January 2011, they took a Christmas cruise which included the applicant’s sister. The respondent paid for the applicant and the children. The applicant took the respondent to Country N, which is her native land, to show the respondent her culture and they then travelled to Country O to visit her cousin and family. The trips over the ensuing years were extensive.

2. After July 2008, there were property developments undertaken by the respondent in Suburb P and Suburb Q. The applicant was involved and encouraged by the respondent.  He did not dispute those activities, but described them as part of a commercial relationship on the basis that they were mutually beneficial.  Curiously, during this same period of time, the applicant received what was described as a monthly management fee of $5,000 per month in addition to the ultimate share of the net profits. Just how the applicant dealt with that money is unclear because when asked whether she declared it for taxation purposes, she declined to answer. To the extent that the respondent gave the applicant that money, at a time when I accept he was living with her at different locations, her lack of candour with the Australian tax authorities is irrelevant. I do not accept that the payment of management fees was simply one of a commercial nature as described by the respondent.  They were working together and it would seem that the gossip columns of the media saw them in a partnership or arrangement and during that time, they were publicly seen at numerous events as a couple.

3. In June 2009, at an event involving the applicant’s family, the respondent was pictured “dancing” with the applicant’s father. In November 2009, he attended public events with the applicant.  In the following year, 2010, he attended the christening of the applicant’s niece at which the applicant was present with her three children and a smiling respondent.  Subsequent events included the first communion day of the applicant’s two younger children. The family as a whole was pictured with the respondent holding the relevant certificate.

4. When asked generally about these events, the respondent indicated that he attended on average about three per year.  Even so, the respondent was content to have himself portrayed as part of the family and as a couple.  It was not just the applicant’s family where the parties attended together. The applicant went to a wedding of the respondent’s brother’s daughter and when asked how many functions between 2007 and 2014 there were at which invitations were given but the applicant did not attend, he said that there were not many and that he attended most of the family functions.  The lack of evidence from his own family leaves me doubting that to be the case. The respondent was asked whether the applicant attended and his response was that she mostly refused. That was not put to the applicant and it seems unlikely looking at all of the photographs tendered in evidence. 

5. The respondent attended the birthday events of the applicant’s children and certainly attended the birthdays of the applicant.  The pictures of the birthdays portray more than just boyfriend and girlfriend but rather, a couple together.  Much effort had gone into those events.

6. At Christmas, although the respondent was somewhat uncertain, baubles were purchased with each of their names and those of the children adorning them and they were placed on the Christmas tree.

7. The applicant always held Christmas functions involving her family and although the respondent was somewhat vague about them, he conceded that he did attend them but then added that he went to his own family thereafter and he could not remember any situation where he missed one. 

8. In mid 2009, the applicant’s son had an 18^th birthday party at the Suburb H home.  There were numerous people present all of whom were photographed. The respondent appears in those photographs and significantly, in one, he has his hand on the shoulder of the applicant’s youngest son. In another, his hand was on the applicant’s father’s shoulder and most importantly, his arm was around the 18th birthday child. These all give the appearance of a family of which the applicant and the respondent were a couple.  The same can be said of the year 2010 where the same son’s 20th birthday took place and this time, the photographs show the respondent with his arm around the applicant. 

9. In 2009, in what the respondent described as stupid, photographs were taken in November of a number of women at what was described as a Christmas party, wearing Christmas hats and where the men wore women’s underclothing on the outside of their clothing or in the case of the respondent, on his head.  This was at Suburb H. Indicative of the fact that the respondent had his own residence at that time, this was a significant indication how the respondent was seen as part of the applicant’s family. On Christmas Day in 2009, he was photographed opening his present and participating in the opening of the presence of the children of the applicant.  He was there at breakfast and he and the applicants were wearing Santa hats.

The acquisition of the B Street property

1. In late 2011 or early 2012, the respondent acquired a city apartment in B Street. The view that each took of this acquisition was starkly different. The applicant said that it was purchased as “our family home” and that must be true because all three children moved in on the same day as the applicants goods and chattels. The evidence of the applicant which is unchallenged is that when all this happened, she placed her Suburb H property on the rental market and moved to the city and at the same time, the respondent moved his belongings from his other city apartment and this became the home for the family until the end of the relationship. 

2. The respondent had a different view.  He said that he “walked” the applicant through the apartment and he remembered her being “impressed with” and “falling in love with” it. He described it as being a significant upgrade on his other city apartment in which the applicant had stayed “on occasions”. The respondent’s memory for dates and detail were not good.  I do not accept that there were just occasions. All of the objective evidence shows that after concluding the F proceedings, this couple was virtually inseparable.  However, having walked the applicant through the B Street property, he said that she came away “with the wrong idea” as she believed he was inviting her and the children to move into the property and that was not his intention. Albeit that might not have been his intention, the reality is as the applicant described.  The time that this part of the cohabitation began was around February 2012. The respondent said that the applicant convinced her oldest son, Mr R, that he was not mature enough to live alone and that he should live with them. Nothing suggests that any specific discussion took place about two significant things.  First, it was the respondent’s evidence that his intention was that he would move into the B Street property with his own son, Mr S.  He said that when the applicant’s son, Mr R was convinced to move in, Mr S refused to do so.  The second issue is that whatever the intention was, all of the applicant’s children moved in without resistance from the respondent.

3. The applicant’s son Mr R, who was the person that the respondent said had been convinced to move in, was a witness in the proceedings.  He said that in late 2011, “family conversations arose” in which both applicant and respondent told him and his brothers that they were “looking at options” for everyone to live together under one roof. When Mr R gave evidence, he was challenged that there was no such conversation and he conceded that he was not part of the conversation, but that he had been indirectly involved, no doubt having been told by his mother. The admissibility of Mr R’s evidence on this point was questionable and as each party had asked me to give such evidence whatever weight as I considered appropriate, I consider it should be given weight, because even though it was hearsay, the reality was that Mr R moved in. Senior counsel for the respondent put to him that he was not at the B Street property “much”. He denied that but conceded that he had come and gone as it pleased him.

4. The focus of attention of senior counsel for the respondent in relation to Mr R concerned where the respondent slept, it being the respondent’s case that he did not sleep with the applicant but rather on a couch in what was described as the spare room. When the subject was put to Mr R, quite remarkably, he noted that this spare room was his “playroom”. He volunteered that he had his “PlayStation and video games” there for at least a year.  He acknowledged that the respondent had been sleeping on the couch since he had known him.

5. It has always been the respondent’s case that there was a change in the relationship with the applicant around the end of 2012 or the beginning of 2013, which on any view of the evidence, was about a year after the family moved in to the property. Keeping in mind the respondent’s case, it was put to Mr R that around this 12 month mark there was a “change”. This open-ended question led Mr R to acknowledge there was a change. He volunteered that he moved his stuff” into his own bedroom within the property because his “little brothers” wanted the room for the same purpose as he had been using it.  No other witness said this, and the evidence was plausible. Senior counsel for the respondent put to Mr R that this room was in reality, the respondent’s bedroom and that he constantly slept there but Mr R disagreed and said that was a multifunction room. I find that whilst the respondent often slept in this room, it is not indicative that he was physically distancing himself from the applicant. Other witnesses saw the respondent sleeping on the couch but still used the ensuite with the Applicant. Any sensitivities about the sleeping together did not seen to extend to the bathroom.

6. Mr R also was asked about the nature of the relationship between his mother and the respondent about arguments.  He readily agreed that there had been. It was put to him that the arguments were about money and he disagreed. It was put to him that his mother was upset because the respondent had asked her to sign a binding financial agreement. Again, the frankness of this witness’s response satisfies me about his truthfulness and accuracy. He said he was there for parts of these conversations and there was no yelling. He said that the applicant and the respondent “did not actively try and fight in front of us”. He said he did not remember any big arguments going on around them.  He recalled no arguments about the commercial development and by the time he moved out in early 2015, “things were good”. That accords with the applicant’s evidence

7. A final question was put to Mr R that he had not seen the applicant and the respondent in bed, and having regard to the sensitivities of mother and her adult child, he unsurprisingly said that he had not.  However, he reiterated that there was a rule that the “PlayStation” was not allowed to be used on the main TV and if that sons wanted to use it, they had to use the study.

8. In my view, the evidence of Mr R Bannister is powerful for its simplicity and accuracy. It indicates that regardless of where the respondent was sleeping, this was a family that did things together.  Much of the evidence of Mr R was not challenged and it is unnecessary for me therefore to deal with it, but he certainly portrayed a picture of the respondent as having had a very significant role in his life and he had great memories of everyone there as a family.

2012 and the Respondent’s position

1. The respondent’s position about the ending of the relationship is encapsulated in his affidavit. He described the applicant as having an extremely volatile and toxic temper.  He said she was quick to anger and would have childlike temper tantrums if she did not get her own way. He pointed to the example of her behaviour in the affidavits of Mr T, Mr U, and Mr L and I shall deal with those in each in turn, but that is one incident which I consider isolated. The evidence of Mr R Bannister to which I just referred indicates something quite the opposite. There is no evidence of this toxic temper and in any event, life went on.

2. Gratuitously, the respondent said that it was his observation that the applicant was “unable to sustain lasting relationships” and regularly fell out with friends and family. That is hardly an indication of the ending of their de facto relationship but apart from her sister, the evidence does not support that wild assertion.  He said that the applicant had no qualms about spending $4000-$8000 on a handbag and on other luxury items but that he was not critical of her for having done so. He said he was frustrated with how regularly she did this and then demanded that he pay. Whilst this complaint might have had some merit if he had in fact cut off that line of credit, he did not do so.

3. As to those complaints, the respondent then said:

   [18](c)      in or about late–2012/early–2013, our relationship had deteriorated to such an extent that I moved out of our master bedroom and into the spare bedroom. We ceased to have a sexual relationship from this time, although (the applicant) had become increasingly withdrawn in this regard soon after she moved into the [B Street] apartment. We continued to travel together on occasions and attend some events together, but our relationship had certainly deteriorated. I continued to travel across Australia and overseas independently and more often following this period. (The applicant) and I went days without speaking to each other, even at times when I was at home.

A sexual relationship

1. In his affidavit filed 31 July 2018, at [20] the respondent says that his sexual relationship with the applicant ended once he moved into the spare bedroom.  Bearing in mind I do not accept that he had moved into the spare bedroom, not much turns on the point.  He said that he and the applicant had not had sex since that time so he attributed the last sexual activity to late 2012 or early 2013. The applicant responded to that statement by saying that she denied the relationship had broken down “irretrievably” by late 2012 early 2013 but went on to say that she and the respondent “continued to have a sexual relationship until Valentine’s Day 2017”. That was misleading. In cross-examination, the applicant was asked prior to her assertion about February 2017, to name the time when there had last been sexual activity. Her evasive response was that it was “probably another event” but she then acknowledged it was “not often”. The applicant maintained that sexual activity was not a significant part of the relationship from her perspective but she expressed hurt in finding out from the respondent’s affidavit material that he had been having a sexual relationship elsewhere. It was only in August 2018 that the parties became coy about sharing the master ensuite together.  I accept that the sexual relationship after 2013 was probably as the respondent described it, save for Valentine’s Day. I do so because of the applicant’s concession that sex did not occur often.

2. To the extent that it is necessary to mention the subject at all, the respondent said (by inference around 2012/2013), he “re-commenced dating and having a sexual relationship with” Ms V. Again for the reasons just mentioned, I consider that irrelevant to the determination of whether or not the de facto relationship had ended. It is certainly one of the indicia mentioned in s 4AA(2) of the Act but it is hardly decisive of the critical issue here. The extent of that sexual relationship and how it could be said that the respondent ceased to live with the applicant as a couple, remains unsaid. That is because of what followed.

A binding financial agreement

1. After the contract for the purchase of the B Street apartment had been completed, the respondent told the applicant that he wanted to get his affairs in order. I find the sequence of events appears were that on 21 November 2011, a Ms W sent an email to the respondent attaching a document that was described as a draft binding financial agreement. That document is in evidence. Ms W who described her firm as “X Legal” noted in the email that there were lots of question marks. Those can be seen in the draft document. She said that when the respondent had come to see her, it was to discuss the legal aspects, so therefore she had not taken a full picture of the personal details and she required the respondent to provide them to her. Importantly, she noted that she was unaware of the status of the Suburb H property after the respondent and the applicant commenced living together.  She noted however that there was a mortgage over the Suburb H property to the respondent as result of the applicant’s debt.

2. This email is significant not just for the fact that there were lots of question marks. I accept that the draft document is not an indication of what instructions the respondent gave, however, I have concluded from the following that at least Ms W must have contemplated that the relationship was not necessarily at an end. She wrote:

   I do not know if you have discussed or given thought to whether you would give (the applicant) a life interest in the [B Street] property if you were to predecease her. I have included such a clause in the BFA. It is something you need to consider and give instructions on.

3. The draft agreement was said to be for the purposes of s 90 UC of the Act.

4. Section 90 UC of the Act relates to financial agreements executed during the de facto relationship so at least Ms W was contemplating “the legal aspects” relying upon the fact that at least at November 2011, there was a de facto relationship. That makes sense because when one contemplates the evidence of the respondent as I have set out above, it was not until late 2012 or early 2013 that he regarded the relationship as “irretrievably broken down”. Whilst much was said about this draft document, in my view it adds little assistance other than to reinforce that whatever instructions the respondent gave to Ms W, she thought he was talking about a de facto relationship and what might happen if it broke down with a separation. There was no indication at that time of such a problem.

2012/2013 onwards

1. Notwithstanding what the respondent had in his mind in late 2012 or early 2013, in January 2013, the applicant and the respondent travelled to Queensland and stayed at the apartment. In May 2013 they travelled to Europe with Mr and Ms Y for three weeks.

Ms Y

1. Ms Y was a witness in the proceedings.  She and her husband had met the parties at the respondent’s Melbourne apartment in mid-2008 and she noted that the applicant had her clothing hanging in a robe.  She also saw a full suite of toiletries and make up in the bathroom from which she concluded that the applicant was not just a “visitor”. She also visited the applicant at the Suburb H property and noted that the respondent stayed overnight there and from her perspective, each of them seem to be travelling between each other’s homes from which she concluded that the travel was the basis behind the respondent acquiring the B Street property.  That was probably an understandable conclusion when she then saw the whole family move in together including the children.

Mother’s Day

1. Only some weeks later, the respondent took the applicant and the children to lunch on Mother’s Day. He could not remember when, prior to that 2017 Mother’s Day, they had gone out for such a celebration. He did remember that Mother’s Day was a significant day because he had a regular attendance at a cemetery and that it was generally a day where he said he wanted to be by himself, yet it is not controversial that he took the applicant and the children to lunch.  When he was pressed again about this particular lunch, he remembered that it was with the applicant, her children and Mr R’s girlfriend Ms DD. He was asked whether he had chosen the venue but he could not remember. He was asked, like other events, why he had done it and his response was that Ms DD was a “nice young girl”.

2. The two dates just mentioned are indicative of the private relationship between the parties. I reject the suggestion by the respondent that he was just being civil or generous. He chose two dates that were significant to the applicant and in particular Mother’s Day, celebrated it with her family. I find in the circumstances that it is not just the public perception that would enable a finding that the applicant and the respondent were a couple living together but also the private side of their life.

3. In May 2017, a charity dance was held at the Suburb EE town hall.  This was to raise funds for an organisation in Country N and the respondent not only took the applicant but donated $10,000.

4. There is no suggestion from the respondent that he was reticent about being seen in public at these charity events. That has to be seen in contradistinction to his view about attending a promotion. The photographs tendered by the applicant in relation to some of the events are telling. For example, in February 2016, for the CC Hospital event to which I have already referred, the respondent and the applicant were photographed on something like a red carpet with advertising hoardings behind them.  He has his arm around her, but the significance also of that event is another picture which shows the applicant assisting the respondent in dressing himself by putting on his bowtie. That would not have been seen by the public but it is indicative of a couple doing things together like the transportation to medical appointments.

5. As late as September 2017, the respondent provided Queensland apartment free of charge to the applicant’s “assistant” as a reward for her hard work over the previous three years. He undertook similar arrangements for other similar persons.  In October 2017, he attended the valedictory dinner for the applicant’s son who had just completed his year 12.

Domestic things

1. Eating at the apartment was not seen as a significant event. Domesticity would be hard to define here. The parties had two cleaners, one of whom was also responsible for cooking. Ms FF described herself as the housekeeper.  Her evidence was not particularly helpful. She spoke little, if any, English. She said she noticed that the respondent had moved into the spare bedroom whilst the applicant remained in the master bedroom and that was the way the situation remained after 2013. She went on to say that in her view, they were not living as a couple.  None of that should be given any weight having regard to the lack of factual foundation.  She said that she heard the applicant and the respondent “on many occasions” involved in “heated arguments” but when pressed, she conceded she did not understand what they were saying because she did not speak English. However, when it came to being responsible for cooking, she said it was the applicant who asked her to do things. There was no controversy that the parties did eat meals at home at times, and although it was suggested the respondent then “disappeared”, the applicant said that he had only gone to the sauna. A variety of witnesses observed the parties together at home, including Mr GG and Mr HH. The latter recalled enjoying “many conversations around the table” with both parties.

2. A second cleaner was Ms II who was required to attend for cross-examination. She said that she first met the respondent in circumstances where she was cleaning other apartments in the building.  He asked her to leave her number if she wanted extra work and he said that he would “speak to his wife and get her to contact” Ms II. Not much turns on the question of the use of the word “wife” because no one else used that phrase, but it is indicative of the fact that to a cleaner, the respondent indicated that he was in a relationship with the applicant. 

3. Ms II said that she did receive a call from the applicant and thereafter began working for the parties. Ms II’s observations were obviously very subjective but she saw the parties chatting about basic things like their dog or if the milk had run out all or what time groceries were to be delivered. She had never heard the parties fight or raise their voices at each other.  She thought the parties were happy. Ms II would arrive at the apartment around 9.00 am or sometimes earlier and she saw the respondent freely moving in and out of the master bedroom but noted that he showered in the ensuite from the master bedroom.

4. Ms II’s evidence is important in the sense that it indicates the parties communicated with one another, spoke about their interests and were civil. Whilst Ms II was unable to give any insight into the sleeping arrangements, I was more interested in the daily activities where both applicant and respondent seem to do things that indicated a joint running of the household. 

5. After 2013, the attendances at family functions continued. The respondent did not go to all events but he certainly attended many as I have set out above.

Wednesday night dinners

1. After the parties moved into the B Street property, there were evening meals on Wednesdays which changed to Thursdays after January 2017. The various dinners were regular and the applicant attended the majority of them as did the applicant’s children and the respondent’s children from time to time. At other times, there were people such as Mr GG.

Mr GG

1. Mr GG was a witness in the proceedings.  He is a tradesman by occupation and had been a personal friend of the applicant’s son Mr R. He attended various homes in both a professional and a social capacity.  He thought that the applicant and the respondent lived as a “normal couple” up until early 2018 when he was told by Mr R that the relationship had ended.  He attended some of the weekly Wednesday night family dinners up until at least 2012 at the respondent’s previous home. After the move to B Street in early 2012 he attended the B Street property on “many occasions”. His friend Mr R left the B Street property in 2015, but both young men attended back at the B Street property up until early 2018 for the weekly family dinners. Mr GG saw nothing unusual about the relationship.  Indeed, Mr GG attended the Melbourne Cup in November 2015 as a guest of the parties and was present for the respondent’s 70^th birthday in 2017. His impression was that the applicant had arranged that birthday function.  He saw them as being both verbally and physically affectionate towards each other on that particular occasion.

2. Mr GG would have seen what the respondent described in relation to these Wednesday nights as the parties sitting at the table and there was never any suggestion of any dysfunctional unhappiness.  By May 2016, the applicant acknowledged that she had to ask for money, but there is no suggestion that the respondent did not provide it. This money was used for a variety of purposes including the provision of food and the respondent always responded positively. 

Mr D

1. In May 2016, Mr D to whom I have already referred, met with the respondent who wanted to sell the apartment. It was put to the applicant that when this event occurred, and Mr D showed a prospective buyer through the property, the applicant was already looking at another apartment so that the parties could go their own separate ways. In very strong terms, the applicant denied that. The evidence of the respondent was that they would sell the B Street property once Mr C completed his Year 12 in November 2017 and that there had been those discussions in early 2016.  This was what gave rise to the suggestion of the sale of the B Street property and the involvement of Mr D.  But, the respondent said that he and the applicant agreed that they would not then sell the B Street property notwithstanding there was a serious buyer available because of the fact that Mr C had not completed his year 12 studies. I consider it most unlikely that that conversation occurred. That is because the respondent said that toward the end of 2016 and throughout 2017, a friend of his, a Mr JJ, said he wanted to buy B Street and those discussions did not become serious until February 2018 and a contract of sale was executed in April 2018.

2. The respondent told the Court that he did not tell the applicant of the sale because in April 2018 her father was very ill and then died. He said he negotiated long settlement and “intended to tell (the applicant) about the sale after her father had died and the funeral had past”. The timing of this seems most unlikely. Contrary to the inference to be drawn from the respondent’s evidence, the applicant said that her father had dementia and not a terminal illness. She had no way of knowing when her father would die.  She asserted that the respondent kept the sale a secret and having regard to the timing of all this, I accept that is the more probable explanation. 

Ms E

1. The respondent relied upon the evidence of Ms E to show that he had moved on from the relationship with the applicant. This witness provided an affidavit that was filed on 1 June 2018. She said that since March 2016, they had seen each other on a regular basis. Cross-examination exposed that the respondent had not told Ms E about the nature of the relationship with the applicant. He had not told that he was still living with the applicant and he did not talk to her about the applicant or her children. She did not know that there had been a relationship with the applicant since 2007.  He told her that the relationship had run its course and they were living together under one roof but in separate rooms. I find the respondent had not told Ms E anywhere near the truth of what relationship he had with the applicant.

The intervention order

1. It is not disputed that in the weeks prior to the hearing of this case commencing, a nasty incident occurred at the B Street property which I have mentioned earlier.  The police attended and their involvement culminated in a safety notice being issued followed by proceedings that gave rise to an intervention order. 

2. The significance of this evidence from the perspective of the respondent was that the documents associated with the intervention order show that the police understood that the applicant and the respondent had been in a relationship since 2012 and that she had moved in in February 2012. The applicant was cross-examined about this on the basis that it indicated an admission she made to the police as to the ending of the relationship. However, I accept that it was in February 2012 that she did move into the apartment and it is equally open to presume that that was what the police were contemplating.  As for being in a relationship since 2012, the problem was that the applicant denied having told the police that. It seems that the police interest was in obtaining an intervention order in relation to the applicant’s son Mr C.

3. The applicant was insistent that she only gave details to the police of what happened that night, in the form of a statement which was taken down on a laptop and then matters progressed to the court stage later.

4. When asked to produce the statement, it seems to refer to the document being a “supplementary statement”.  The document makes reference to the fact that the parties had been living together for 6 ½ years and had been separated for five years.  None of this makes much sense but the applicant said that she first saw the document at the Melbourne Magistrates’ Court. As the application related to the son Mr C and the applicant was a police officer, I do not consider that I can give much weight in the absence of hearing specifically from the police as to who told them what. In my view, no weight should be given to that detail.

The evidence of Ms K

1. The evidence of Ms K was by affidavit and she was not required for cross-examination. Ms K appears to have some form of legal background having regard to the language that she used. She described herself as retired but a person who provided pro bono assistance to celebrities. Her evidence was a mixture of obtuse statements and confusing concepts. For example, on a variety of occasions, she said that the discussions she had had with a particular person were confidential or indeed covered by privilege.  I am not sure how she justified that, bearing in mind her attendance in conferences and discussions with the participants in the proceedings.

2. The focus of her evidence related to whether or not documents belonging to the respondent had been taken from his bag or desk. The respondent relied upon an affidavit of Ms LL who transcribed what appears to be some telephone recordings between the applicant and Ms K. The accuracy of the transcripts was not a subject of challenge, but having read the conversations, they do little credit to Ms K. There was an unseemly debate between the two women as to whether or not it was Ms K who invaded the privacy of the respondent to take his documents or whether it was the applicant who then arranged for the documents to be copied. It is impossible to make a finding about that, and in any event, only distracts attention from the real issue in this case as to what the parties were doing up until the commencement of 2018. All of this occurred after the proceedings had begun and could only go to the credit of the parties/ Just what the two women were talking about, I cannot decipher other that the applicant was denying having done anything wrong and Ms K kept dragging her back to her own concern about getting into trouble with the police for stealing. This was an unnecessary distraction. To the extent that the evidence of the transcriber and Ms K was intended to be indicative of the lack of credit of the applicant, like a number of other matters, it did little to assist me in relation to the substantive matters to which I have already referred. I propose therefore to give the evidence of Ms K no weight.

Conclusion

1. I find on the balance of probabilities that the applicant and the respondent were a couple and they lived together on a domestic basis.  That all came to an end in February 2018.

2. The relationship was long-standing, even if it changed as the years passed by. There is no better example of the change than the importance the respondent placed on the cessation of the sexual relationship. However, little turns on that because the applicant never saw the sexual relationship as all that significant.

3. The parties had common residence in the B Street property but also their earlier abodes, and the evidence that the respondent had intended the property to be used by he and his son, rather than the applicant and her children, has little to commend itself. There was no evidence from any of his children but most importantly, his actions here speak louder than his words. He took no steps to stop the applicant and her children moving in and importantly, one can see the delight, if not pleading nature at the time, at the applicant wanting certain chattels which were the property of the former owner.

4. Insofar as the parties had their own residences before moving in together, I accept all of the evidence that they spent a lot of their time together at each other’s property. Logic dictates that they spent more time in the Suburb H home, simply by virtue of the fact that is where the children were.

5. The evidence of witnesses who say they saw little of the applicant at the respondent’s earlier property has little to commend itself because of the limited observations involved.

6. It is undisputed that the respondent was an extraordinarily generous man not only to the applicant but also her children. Importance does not lie in his generosity but in the dependence of the applicant upon him. That dependence was not discouraged by the respondent and indeed, he flaunted his generosity towards her in the many things that everyone seemed to acknowledge he was generous about.

7. The parties worked together; he buying property and she developing it but at all times, regardless of the commercial realities, the respondent controlled the financial purse strings.

8. The lives that the parties led showed they were affectionate towards each other.  They were physically close to each other, not just in public but in private as well. As their personal relationship came to an end, the applicant’s unchallenged evidence is that she became uncomfortable about their lack of privacy as they shared the intimacy of the ensuite off the main bedroom. Accepting that they were not sexually attracted to one another, this decision in 2018 indicates they had (or at least the applicant had) withdrawn from life as a couple. Otherwise, they showed glimpses of coupledom through the applicant helping the respondent to dress formally or sitting close to one another right up until 2017.

9. Arguments no doubt occurred from time to time of their daily activities in terms of meals, shopping, organising travel to medical appointments and airports, all give the appearance of far more than just flatmates or even boyfriend and girlfriend. The collection at the airport from a flight or the organisation of an upgrade on a flight, all indicate more than generosity. I am satisfied those things are part of a commitment to each other as a couple.

10. The events to which I referred of Valentine’s Day and Mother’s Day are peculiar indicators of a degree of importance of the applicant in the respondent’s life.  Whilst he endeavoured to portray them as not significant, the applicant saw them otherwise. If he had been seriously contemplating the end of the relationship, he could not go about involving himself in personal events significant in the applicant’s life.

11. The respondent patently loved the applicant’s children and they reciprocated; they looked up to him. He took on responsibilities for which he had no legal obligation.  This was not just about school fees; it was about love and care. He exposed the children to important values as he saw them, such as Anzac Day. He took them overseas and interstate. He welcomed their friends.  He provided them with financial assistance.  That is not just a stepfather at work – he was their father-figure. That could only arise if he was in a significant domestic relationship with their mother.

12. The respondent’s view was that his relationship with the applicant came to an end in 2012/2013, but his involvement in the children’s lives continued thereafter, as was evident by his obvious pride in their first communion day when photographed.

13. The public aspects of this relationship are many and varied, but the most significant are where the applicant portrayed the respondent as her partner in the social world which included the media. She included him in her family activities and saw herself as included in his family activities. There was no suggestion of him distancing himself from those activities even if the relationship changed after 2013. It certainly slowed down in terms of events that they both attended but that is an indicator of change.

14. The respondent was content to do less public events but that does not detract from the fact that he appeared with her in activities such as charities that both were interested in. They enjoyed activities such as horseracing together. These joint interests may have also waned as the respondent sought solace elsewhere such as in Ms E. But those activities could be seen as a floundering, rather than an ending of, the relationship. 

1. The unpleasant activities of 2018 and the ugly scenes and events involving Mr C, Ms K and the post-lunch June arguments, are all indicia of the outer limits of the level of tolerance having been reached. But so too, the dishonesty of the applicant in hiding finances from the respondent and her dishonesty (if that is what it was) towards her obligation as a citizen of Australia, are all indicia of human behaviour that do not detract from her relationship with the respondent.

2. To the extent that the respondent knew what she was doing with the Department of Social Security and the Australian Taxation Office (and he denies that he did) they are all matters about which he easily could have, and should have, made enquiries of the applicant. He knew she was supposed to be paying him mortgage payments on the Suburb H home yet, did nothing to collect the debt. To now say that was only indicative of protecting his financial interests in case the relationship came to an end, has a ring of unreality about it having regard to how long it went on.

3. The respondent’s generosity was not commercial but rather part of the way he was content to conduct the personal relationship. That is, as a couple where there was no serious concerns about accounting for money.

4. In Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, albeit well before s 142 of the Evidence Act, Dixon J (as his Honour then was) said that reasonable satisfaction was not a state of mind retained or established independently of the nature and consequence of the fact or facts to be proved.

5. His Honour observed in Briginshaw that the seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding, are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction in this case, of the Court. It is inherently unlikely given all the circumstances here that the Court could not be satisfied that this was two people living together on a genuine domestic basis as a couple and as such, living in a de facto relationship.  As Dixon J said, the matters had to be proved not by inexact proofs, indefinite testimony or indirect inferences but rather by facts and those facts had to be established to the reasonable satisfaction of the Court. Here, these are not matters of inference or indefinite testimony but rather clear facts corroborated by (mostly) photographs all of which show the relationship continued until this year. 

6. Accordingly, I am satisfied on the balance of probabilities that all of the circumstances (and there are many here) point to the fact that the applicant and the respondent were in a de facto relationship and that it ended in February 2018. I so declare.

I certify that the preceding two hundred and fourteen (214) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 5 November 2018.

Associate: 

Date:  5 November 2018