Barry & Dalrymple - [2010] FamCA 1271

FAMILY COURT OF AUSTRALIA

BARRY & DALRYMPLE

[2010] FamCA 1271

FAMILY LAW - DE FACTO RELATIONSHIP – whether the Court is satisfied on the balance of probabilities that a de facto relationship within the meaning of s 4AA of the Act existed - whether one party was a personal assistant and/or carer

Family Law Act 1975 (Cth) s 4AA, s 90RD
De Facto Relationships Act 1984 (NSW)

Baker v Landon [2010] FMCAfam 280
Delany v Burgess [2007] NSWCA 360
Lynam v Director- General of Social Security (1983) 52 ALR 128
MW v Director-General, Department of Community Services (2008) 82 ALJR 629
Roy v Sturgeon (1986) 11 Fam LR 271
S v B(No 2) (2004) 32 Fam LR 429
Truman and Clifton (2010) FCWA 91

APPLICANT:

Mr Barry

RESPONDENT:

Mr Dalrymple

FILE NUMBER:

PAC

2365

2010

DATE DELIVERED:

15 December 2010

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Coleman J

HEARING DATE:

15-19 November 2010 and 22 November 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Michael Brown

SOLICITOR FOR THE APPLICANT:

Browns The Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr David Brown SC

SOLICITOR FOR THE RESPONDENT:

Taussig Cherrie Fildes

Orders

That the application filed 20 May 2010 be dismissed.
That costs be reserved.
That any party to the application seeking an order for costs of and incidental to the application file and serve written submissions in support of such claim within 7 days and thereafter within a further period of 14 days any party against whom a costs order is sought file and serve submissions in opposition to any such order.

IT IS NOTED that publication of this judgment under the pseudonym Barry & Dalrymple is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 2365 of 2010

Mr Barry

Applicant

And

Mr Dalrymple

Respondent

REASONS FOR JUDGMENT

Introduction

By application filed 20 May 2010 Mr Barry (“the applicant”) sought a declaration “pursuant to s 90RD of the Family Law Act 1975 (Cth) (“the Act”) or otherwise that a de facto relationship existed” between the applicant and Mr Dalrymple (“the respondent”).
The application further sought declarations that such de facto relationship “existed between late 2005/early 2006 and 11 March 2010” and that the “applicant and respondent were ordinarily resident in the states of NSW and Queensland or either of them during the de facto relationship”. It is reasonably apparent that the reference to “NSW” should be a reference to Victoria. Nothing turns on that. The applicant sought that the respondent pay his costs of the proceedings.
The respondent, by response filed 28 June 2010, resisted the applicant’s claim and sought its dismissal, with costs.
For reasons which are not entirely clear, and do not matter in any event, the proceedings before the Court have been confined to the issue of whether or not a de facto relationship within s 4AA of the Act existed, thereby enlivening the provisions of s 90RD of the Act.
Counsel for the applicant submitted throughout the proceedings that the issue was whether, as the applicant claims, he and the respondent lived together in a de facto relationship within s 4AA of the Act, or whether, as he submitted that the respondent asserted, the relationship was one of personal assistant and/or carer.
With respect to Counsel for the applicant, framing the dispute in those terms distorts the real issue for determination. If, as the applicant contends, a de facto relationship is established to have existed within the meaning of s 4AA of the Act, the applicant is entitled to the benefit of the declaration he seeks. If however, the applicant does not establish a de facto relationship within the meaning of s 4AA of the Act, then his application must be dismissed.
In S v B(No 2) (2004) 32 Fam LR 429 Dutney J, sitting as a member of the Court of Appeal of the Supreme Court of Queensland said (at para 49) that:
In a de facto situation it is the party asserting the relationship that must prove cohabitation of the required quality.
His Honour further stated (at para 50) that “the party asserting a de facto relationship must prove the ‘positive aspects’ of the relationship rather than the party denying it being required to prove the ‘negatives’”. McPherson and Williams JJA agreed with his Honour’s observations.
In order to successfully resist the applicant’s claim, it is not necessary for the respondent to establish that the relationship between the parties was one of personal assistant and/or carer. Although, if that were established on the balance of probabilities to have been the nature of the parties’ association, that would militate against finding that there had been a de facto relationship within s 4AA of the Act in the circumstances of this case.
If the Court is not satisfied on the balance of probabilities that a de facto relationship within the meaning of s 4AA of the Act existed, being unable to find on the balance of probabilities that the relationship was one of personal assistant and/or carer, would not render the association between the applicant and the respondent a de facto relationship within s 4AA of the Act.

Credit

Credit assumes considerable but not decisive significance in determining the proceedings. The evidence before the Court falls into a number of categories.
The Court has the benefit of lay and expert opinion evidence, some of which has not been challenged. In the case of the lay evidence, why that evidence has not been challenged is not in doubt having regard to the impact of objections to the affidavits of those witnesses who were subsequently not required for cross-examination. That untested lay evidence is equivocal, and does not impact upon the probabilities.
The significance of the untested expert opinion evidence of a psychologist, Ms K, remains to be considered within the context of the medical evidence relating to the respondent.
The Court also has the benefit of circumstantial evidence. The circumstantial evidence falls into two broad categories. Those categories are evidence of what was, such as the contract of employment between the applicant and X Pty Ltd, a corporation which for present purposes can be regarded as the alto ego of the respondent. There is circumstantial evidence of the nature and quantum of financial benefits received by the applicant. There is other circumstantial evidence, such as Internet records of the applicant, hotel accounts and bank records. There is little else in the way of circumstantial evidence of what was.
The other category of circumstantial evidence is the absence of evidence of circumstances which might have been expected if, as the applicant contends, he and the respondent had a de facto relationship. As will be seen, the evidence of the applicant, and a number of his witnesses, is significant for what it does not reveal in that regard. The absence of such evidence provides support for inferring that, whatever the precise nature of their association, the applicant and respondent did not have a de facto relationship within the meaning of s 4AA of the Act.
A number of witnesses in the respondent’s case (Ms N and Ms S most notably) attested to their observations of a number of aspects of life in the home occupied by the applicant and the respondent, and to the absence of indicia of a domestic relationship between the two men over the period of those observations. Although those witnesses were required for cross-examination, their evidence in relation to those matters was largely unchallenged. To the extent that it was, the challenges to the testimony of these witnesses failed.
Ultimately, there are really only two people who know whether or not the association between the applicant and the respondent had the characteristics of a de facto relationship. They are the applicant and respondent themselves. The evidence of the applicant and the respondent is directly in conflict in that regard.
In a number of significant respects, the broad assertions of the applicant were not particularised by either his affidavit or oral evidence. Not surprisingly in those circumstances, Senior Counsel representing the respondent, who steadfastly denied that there had been a de facto relationship between himself and the applicant, refrained from agitating those topics and risking the applicant saying things in cross-examination which he had not said in examination-in-chief. Also not surprisingly in the circumstances, experienced Counsel for the applicant was unable to agitate these topics effectively in cross-examination of the respondent.
Although such finding is not conclusive of the essential issue for determination, a finding with respect to the credit of the applicant and the respondent is necessary. Their evidence does not permit convenient findings of innocent or mistaken beliefs or recollections. They cannot both be telling the truth. The Court is comfortably satisfied, for reasons which will emerge from an examination of the evidence which follows, that the evidence of the respondent is entitled to be preferred to that of the applicant where the two are in conflict.
Notwithstanding its credit finding, the Court accepts that the existence of a de facto relationship is ultimately a question of fact for the Court to determine. Preferring the denial of such a relationship by the respondent to the assertions of the applicant as to its existence does not relieve the Court of the obligation to determine the issue by reference to the totality of the evidence. Although not conclusive of the issue, preferring the evidence of the respondent to that of the applicant in relation to disputed aspects of the relationship is of considerable significance in determining whether or not, on the balance of probabilities, the Court is persuaded that the parties had a de facto relationship within s 4AA of the Act.
The applicant’s evidence was internally inconsistent in a number of material respects, as will be seen. The applicant’s assertions were uncorroborated in a number of ways in which, on his own evidence, they ought to have been corroborated.
The applicant’s apparent inability to do more than make sweeping assertions with respect to a number of factual aspects of the de facto relationship which he asserted to have existed was significant, as was the consequential inability of his Counsel to forensically agitate such matters effectively in cross-examination of the respondent.
The evidence of the applicant, describing his life during the period of his association with the respondent, combined with his actions subsequent to the termination of that association, suggest that the applicant saw the opportunity for, and during his association with the respondent had, a lifestyle to which he had previously been unaccustomed. The termination of which he resented, as his own evidence with respect to a number of actions after the termination of the association confirm. The applicant’s resentment of the wrong he believes he has been done has coloured his recounting of the facts.
The demeanour of the applicant in cross-examination, although of minor significance in the Court’s evaluation of credibility, is supportive of the Court’s preference for the evidence of the respondent to that of the applicant where the two are in conflict. During cross-examination, the applicant appeared at times to be almost deliberately provocative, saying things which seemed to him to be most advantageous at the time.
The respondent impressed as a truthful witness. The respondent answered the questions he was asked without prevarication, embellishment or obfuscation. He made admissions where admissions were appropriate.
Save to the extent of an obvious slip or slips as to when his association with the applicant commenced, about which he was properly not challenged in any event, the respondent was not shaken in cross-examination in relation to any topic. As noted earlier, in a number of respects the assertions of the respondent were not challenged in cross-examination. Nor was the respondent challenged in cross-examination with respect to particular aspects of his alleged de facto relationship with the respondent.
There is no rational basis for rejecting the evidence of the respondent with respect to any issue of substance. The circumstantial evidence of what was, and what was not, provide further support for preferring his evidence to that of the applicant.

Material Facts

Some material facts provide background to the proceedings. The material facts reflect the Court’s preference for the evidence of the respondent to that of the applicant where the two are in conflict.
The respondent was born in 1933. He is accordingly 77 years of age. The respondent has twice been married. There are adult children of the first of those marriages.
The applicant was born in 1974. He is accordingly 36 years of age. Prior to meeting the respondent, the applicant was living in a same-sex de facto relationship with Mr U. The applicant was Mr U’s carer.
In August 2005 the respondent purchased a residence at C in far north Queensland. At that time he had an apartment in Melbourne and a rural property at W in the state of Victoria. Essentially, the respondent thereafter occupied his far north Queensland property for the southern winters in the interests of his health, and returned to Victoria to avoid the intense heat and humidity of far north Queensland over summer.
The applicant and the respondent met at C in August 2006. By that time the respondent required a carer and the use of a wheelchair on a significant basis. The respondent’s previous personal assistant and carer, Mr P had left the employment of the respondent to travel overseas in July 2006. At the time the applicant and respondent met, the respondent was in need of a personal assistant/carer to replace Mr P.
The parties met after the respondent was referred to the applicant as a person who may be able to assist him with some difficulties which the respondent was experiencing with his fax machine, and possibly other technical equipment in his home at C.
In the course of providing some technical assistance at the respondent’s home, the applicant informed him that he had experience as a carer and nurse for Mr U. The applicant also informed the respondent, as was indeed the fact, that he carried on business as a male escort. It has not been controversial that the applicant provided paid sexual services to other men in the course of that business. Mr U gave the respondent a positive verbal reference in relation to the applicant’s skills as a carer. Some time later, the respondent became aware that the applicant and Mr U had been in a de facto relationship during the period the applicant cared for Mr U.
Prior to the applicant moving into the respondent’s C premises in September 2006, mutual masturbation between the applicant and respondent occurred on three occasions. Two of those occasions were at the premises in C which the applicant shared with Mr U. The third occurred at the respondent’s home. On each of those three occasions the respondent paid the applicant for his services. The remuneration received by the applicant was consistent with the scale of his charges for such services at that time.
In September 2006 the applicant was employed by the respondent or X Pty Ltd as a personal assistant to the respondent and by the respondent in his personal capacity as a carer. This was on a trial basis. The applicant then moved into the C property. Shortly thereafter, there was a further occasion of mutual masturbation between the applicant and the respondent. The applicant may or may not have been paid for the services which he then provided to the respondent. Thereafter the applicant and the respondent did not engage in any sexual activity. Throughout the period that the applicant lived in the C premises of the respondent, and at times when he occupied the premises which the respondent owned in Victoria, the applicant had his own bedroom and bathroom facilities.
From September 2006 to 13 November 2006, the applicant was remunerated for the personal assistant and/or carer duties he performed. The evidence is unclear as to how much the applicant was paid, or by whom he was paid. How each party treated those payments for revenue purposes is unclear. The applicant has never asserted that he was not adequately remunerated for his services between September 2006 and 13 November 2006, at which time the arrangements between the parties were formalised.
On 13 November 2006 the respondent faxed a handwritten direction to his accountant Mr M, who was a co-director of X Pty Ltd, stipulating the terms of the applicant’s employment henceforth. A copy of those directions was provided to the applicant. The applicant has never disputed the accuracy of the respondent’s direction to Mr M in relation to his employment by X Pty Ltd.
Pursuant to the respondent’s direction, the Applicant was to be paid a salary of $25,000.00 per annum plus superannuation and some living expenses. The applicant subsequently worked approximately 15 hours per week on average pursuant to his employment by X Pty Ltd. In addition to wages and superannuation, the applicant was to, and did receive free rent in the residences of the respondent in which he was then performing his duties, comprising “a bedroom and bathroom and use living room etc”. Provision was made by the respondent for “food when eating with me” and reimbursement of “all authorised outgoings”.
The applicant’s caring duties for the respondent were not the subject of any written agreement, nor was any rate of remuneration stipulated. The evidence leaves little scope for doubt however that the applicant was generously provided for by the respondent, in terms of living expenses, spending money for himself, his friends and family members, as well as frequent expensive, and at time luxurious, holidays and travel.
As the evidence of Mr M confirmed, it was not inadvertent that the applicant’s employment as a personal assistant for the respondent was through X Pty Ltd. In essence, and largely through X Pty Ltd, the respondent’s business activities necessitated secretarial-type assistance which the applicant was engaged to provide. Mr M, who was the accountant for the respondent and his various enterprises, was satisfied that the arrangement, which resulted in X Pty Ltd receiving a tax deduction for the applicant’s wages and superannuation contributions was legitimate in terms of the Income Tax Assessment Act. The applicant has not suggested that he was not remunerated in accordance with the respondent’s direction of 13 November 2006.
The benefits conferred upon the applicant by the respondent in his personal capacity in return for the caring duties performed by the applicant was neither assessable income in the hands of the applicant, or ever suggested to have been, or a tax deduction on the part of the respondent or X Pty Ltd. The parties’ financial arrangements continued until their association was terminated in March 2010.
In February 2008 the applicant used funds of the respondent or X Pty Ltd to pay $61,000.00 for the purchase of a motorcycle for his own use. The purchase was without the knowledge or consent of the respondent. The applicant thereafter made 49 fortnightly payments each of $500.00 from his salary to the respondent or X Pty Ltd. That was at the respondent’s insistence. The applicant thus repaid $24,500.00, a shortfall of $36,500.00. The motorcycle was retained by the respondent’s family/others when the applicant’s employment was terminated in March 2010.
In September 2008 Ms B, the applicant’s maternal grandmother, married Mr B. The applicant and the respondent were invited to the wedding. Only the applicant attended the wedding. The respondent paid for Mr and Mrs B to have their honeymoon at a luxury hotel in C. The applicant stayed at the P Hotel in Sydney for a week in September 2008. The cost of his accommodation and other expenditure approximating $9,520.00 was paid by the respondent.

In January 2009 the applicant and the respondent took an aeroplane flight over the Antarctic. As with all other trips, entertainment and holidays which occurred during the period of the parties’ association, the respondent paid for the trip.
In May 2009 the respondent had a hip replacement, for which he was hospitalised at the W Hospital in Melbourne. The applicant stayed at the H Hotel Melbourne during that time. His accommodation cost $11,672.23 for a stay of twelve days duration. The applicant also incurred limousine hire fees during that stay of $3,260.00. The respondent met these expenses.
On or about 22 September 2009, the respondent fell over in the middle of the night and was admitted to hospital the following day.
In October 2009, Mrs Barry, the applicant’s mother celebrated her 60^th birthday at C. At the respondent’s expense, Mrs Barry, her husband, and a number of friends were accommodated in C. A cruise for Mrs Barry and her family and friends was paid for by the respondent. The respondent had paid for other 60^th, 70^th, 80^th and even 90^th birthday parties for people who, like Mrs Barry, could not afford to celebrate such occasions.
In December 2009 friends of the applicant, Mr D and Mr G, stayed at C for, in all, approximately four weeks. Whilst the applicant and his friends were taking a hot air balloon ride on 8 December 2009 which cost $2,750.00, the respondent had a fall at his C residence and was hospitalised. The applicant chartered a helicopter at a cost of $2,656.25 so that he and his friends could return to the C property upon his learning of the respondent’s fall. The respondent paid for these flights.
In January 2010 the applicant and the respondent travelled to Tasmania where they toured for about three weeks. The applicant’s mother joined the parties during that time. The holiday was paid for by the respondent.
On 4 March 2010 the applicant paid a deposit of $37,000.00 for a motorcycle using funds taken from the respondent’s accounts. The transaction was without the knowledge or consent of the respondent. The applicant retained those monies after cancelling the order for the bike.
On 10 March 2010 the respondent was removed from his Victorian property and hospitalised in Melbourne for approximately two months thereafter.
On 11 March 2010 by notice in writing, the applicant’s employment by X Pty Ltd and/or the respondent was terminated. The applicant collected his personal belongings form the Victorian property. The applicant was paid the sum of $7,377.50 representing three months salary in lieu of notice. The applicant retained that sum.
Between 11 March 2010 and the date of trial the applicant thus had the benefit of approximately $44,000.00 from X Pty Ltd or the respondent. The applicant sought unsuccessfully to recover a deposit paid from funds of the respondent for a cruise later in 2010 in the sum of $15,222.00 but was prevented from doing so.
On 30 March 2010 the applicant’s solicitor wrote to the respondent requesting a “full and frank financial disclosure” from him. The desire of the applicant to “settle matters as simply and amicably as possible” was asserted in the letter.

The evidence at trial

In cross-examination, the applicant asserted that he had a “good memory” of the events to which he deposed in his affidavit of evidence-in-chief. He reiterated that it was late 2005 or early 2006 when he claimed to have commenced a de facto relationship with the respondent.
The applicant testified that he first met the respondent as a result of the respondent telephoning him on a number appearing in an advertisement the applicant had placed in a newspaper advertising his services as a male escort.
Although the applicant stated during cross-examination on the first day of the trial that he would be able to access his telephone records, and secure a copy of the advertisement which he had placed in the newspaper, at the conclusion of the trial on day six, nothing of that nature had been tendered in the applicant’s case. Nor was there any explanation for the failure to produce what would, on the applicant’s evidence, have established beyond doubt by what date he and the respondent had met.
Moreover, had the documentation established that the respondent had telephoned the applicant on the number listed in the applicant’s advertisement for escort services, that would have potentially corroborated the applicant’s assertion as to how the parties met. Although it would be unsafe to attach inordinate weight to it, commonsense suggests that the chances of the relationship between the parties having, and continuing to have a sexual nature might be greater had they met as a consequence of the respondent actively seeking another man for sexual services, as opposed to the explanation of the respondent that the applicant being a male escort was coincidental to the circumstances in which he came to meet him.
The applicant was cross-examined about his de facto relationship with Mr U, for whom the applicant was a carer. The applicant was vague about the duration of that relationship, although he acknowledged that it had been from five to seven years duration. The evidence of the applicant in relation to the termination of his relationship with Mr U was vague, unconvincing, and challenges commonsense. There was no suggestion of any acrimony within, or strain upon the relationship of the applicant and Mr U. Essentially, the applicant asserts that the relationship ended because he saw a better opportunity, as it no doubt was in a financial sense.
The applicant’s evidence in relation to the termination of his social security benefits after moving into the respondent’s home was vague and less than convincing. Cross-examination of the applicant revealed that he had only modest income from the provision of sexual services as a male escort, and nominal assets apart from a Toyota motor vehicle. There is little doubt that, financially, the arrangements proposed by the respondent, and accepted by the applicant, represented a significantly better financial “package” for the applicant than he had experienced to that time in his life. The standard of living which he thereafter enjoyed was superior to anything which the applicant had previously experienced.
The cross-examination of the applicant in relation to, as he would have it, the cessation of one happy de facto relationship, and commencement of another was unconvincing, and inconsistent with what commonsense would imply. The absence of any expressed dissatisfaction with his long established, stable and happy relationship with Mr U, together with the absence of any suggested attraction (apart from the obvious financial attractions) of entering into a relationship with the respondent are significant in that respect. How the applicant came to love the respondent as he claims he did, or what attracted him to the respondent has not been articulated by the applicant. Without resorting to stereotypical thinking, given his long standing and apparently happy de facto relationship with Mr U, the absence of evidence of such matters is significant.
The applicant suggested in his evidence that he had a loving, caring sexual relationship with the respondent until March 2010, during which time the applicant did not have actual sex with any other person. Nowhere in his affidavit of evidence-in-chief did the applicant do other than reiterate this general assertion. With what frequency sexual intercourse occurred, in what manner, where and in what circumstances were never specified by the applicant. Without suggesting that great and explicit detail was appropriate, this absence is significant, given the matters referred to above, the applicant’s sexual interests as revealed by his Internet communications, and the fact that the respondent had earlier stated clearly the extent of the parties’ sexual contact, and the circumstances in which it occurred.
The respondent has at all times denied any sexual engagement between the parties other than on four occasions in August and September 2006. Not surprisingly in the circumstances, Senior Counsel for the respondent did not, in cross-examination, present the applicant with the opportunity to provide particulars of the sexual relationship which he had failed to do in his evidence-in-chief.
During his cross-examination, the applicant conceded that it was “possible” that he had first met the respondent in August 2006. The applicant agreed that he had three or four sexual encounters with the respondent at about that time, for at least three of which the applicant was paid.
The applicant reiterated that “all the time” he and the respondent had “lots of sex” until March 2010, no details of which were ever provided. Without suggesting that great detail of intensely personal and private activities of a sexual nature were required to be adduced in evidence by the applicant, where, as occurred in this case, the respondent absolutely denied any sexual encounters subsequent to September 2006, and at least three of the four conceded encounters were admitted to have been in return for payment, the absence of detail of that kind by the party who was asserting that there had been an ongoing sexual relationship is significant.
In the course of cross-examination of the applicant by reference to his internet records, particularly involving a dating website, the applicant gave evidence about “jerk off” or “jack off” sessions which were “to relieve myself”. The evidence of the applicant was that he had a greater sex drive than did the respondent, to accommodate which, the applicant would apparently masturbate in front of a computer in circumstances where another male person would do likewise in front of another computer. The applicant’s evidence was that this generally occurred once or twice a week although, contrary to suggestions in the emails, he never actually met any of the persons with whom he had these sessions. There is no evidence that the applicant did meet any of those persons. It is difficult however to reconcile the applicant’s claim of a loving domestic relationship with the respondent with the terms in which he addressed other unknown men on the Internet (see exchange with V on 3 June 2009).
Other aspects of the Internet records are instructive for present purposes. The first and most obvious is the almost total absence of any reference by either the applicant or “I” (Mr U’s code name on the Internet) to the respondent during the period which extended from 17 December 2007 to 3 April 2008. That is surprising in a number of ways, particularly having regard to the circumstances in which the applicant and Mr U suggested their de facto relationship ended, and the de facto relationship of the applicant and respondent allegedly commenced.
The records are significant also in that the applicant at no time mentioned that he had a “boyfriend” or de facto partner, or otherwise referred to the respondent. The applicant sought to explain that on the basis that doing so would have been a “turn-off” to others on the Internet with whom he might have engaged in a virtual sex session. Why that was so was not explained.
Also of significance, is the fact that the applicant referred to himself, during the course of a series of Internet sessions on 18 August 2009 with “A”, as a “personal assistant” in response to A’s question “What ya do for a job [Z]”. Z was the applicant’s code name on the Internet. In the course of that conversation the applicant further volunteered “good money”, “travel and strees (sic) free”. The applicant had earlier referred to the motorcycle which he had by that time purchased for himself with the respondent’s funds. When asked by A “Do ya get the beast out each day or is she a weekend bike”, the applicant replied “Yer, most days”.
Also of significance is an Internet conversation between the applicant and Mr U on 13 December 2007 during which the applicant stated that he hated “Y” who was then the respondent’s housekeeper. In the course of further criticisms of Y, the applicant suggested to I that Y “told stories to [Mr Dalrymple’s] children…to get me the sack”. The terms used by the applicant in that exchange are significant, as is the absence of any suggestion that Y’s alleged motivation was to break up the alleged relationship between the applicant and the respondent. The applicant had no reason to be other than candid with Mr U having regard to what both men said in their affidavits. The evidence from the Internet material in isolation is of no particular significance. It does however provide helpful pieces in solving the puzzle.
In cross-examination of him with respect to the affidavit of Ms S, a physiotherapist who attended upon the respondent at his home, the applicant agreed that Ms S attended the respondent’s C premises approximately three times per week after 29 July 2009, usually arriving between 12.30 and 1.00pm. The applicant agreed that he introduced himself to Ms S as the respondent’s “carer” as Ms S asserted. The applicant did not agree with Ms S’s assertion that, by the end of August 2006 the applicant was “rarely around” during her sessions with the respondent. In later cross-examination, perhaps having forgotten his earlier evidence, the applicant asserted that he went out to lunch, without the respondent, most days per week during the period to which Ms S’s evidence related.
The applicant denied Ms S’s assertion that the kitchen at C was “often filthy, with dishes piled in the sink and takeaway containers left all over the bench”, or that “there was often nothing other than pizza, junk food and soft drink in the fridge”. The applicant volunteered that “heaps of times” he and the respondent ate takeaway food or had barbeques. The applicant asserted that he prepared meals for the respondent “at least three times a week”, the meals being “very basic”. Later in his evidence, whilst not conceding that the standard of his housekeeping left anything to be desired, the applicant asserted that it had not been his responsibility to clean at C during the time he was living there.
Acceptance of the evidence of Ms S, and of Ms N, to which evidence more detailed reference will later be made, the damage to the credibility of the applicant generally, and even his own evidence in that regard, leaves the Court with the distinct impression that the applicant performed few domestic duties during the time that he lived in the houses of the respondent, and that by 2009 the standard of service provided by the applicant was questionable.
Without suggesting any stereo-typical division of labour within a domestic relationship, given the respondent’s undoubted need for a carer, limited mobility, and substance dependence for much of the time he and the applicant had an association, the absence of the provision of such basic and clearly needed domestic services is more consistent with the respondent’s assertion that the association was of a commercial nature, than the applicant’s assertion that it was a de facto relationship. It is difficult to accept that an able bodied man such as the applicant would allow the partner he loves to live in the conditions described by Ms S and Ms N.
When cross-examined on the second day of the trial, the applicant testified that he had been in a de facto relationship with the respondent prior to being employed by him. The applicant clarified that he lived with the respondent well prior to becoming his carer. The applicant was “now clear” that it was “mid ‘06” when he claims to have commenced a de facto relationship with the respondent. When pressed, the applicant was unable to be more precise as to when “mid ‘06” was in terms of a month or months.
The applicant was then presented with the letter written by his solicitors, on his instructions, on 30 March 2010 (Exhibit R3). That letter was written less than three weeks after the applicant’s association with the respondent was terminated. In the letter the applicant’s solicitor, an attorney who was an “accredited specialist in family law” suggested that “In late 2005, [Mr Barry] began to work for [Mr Dalrymple] as a personal carer and thereafter a de facto relationship was formed”.
As is clear beyond doubt, that assertion was inconsistent with the evidence given by the applicant on two consecutive days at trial. Rather than prefer one of the two inconsistent versions of events proffered by him when pressed to do so in cross-examination, the applicant asserted that the de facto relationship and the carer duties had commenced at the same time. Three materially different versions of events have thus been asserted by the applicant.
In a somewhat animated fashion, the applicant then asserted that he had never been the respondent’s carer or his personal assistant, but had always been “partners”, the “illusion that he was the respondent’s carer” being “solely for his family’s sake”. As the unchallenged documentation records, if there was an “illusion” it was that the applicant was employed by X Pty Ltd as the respondent’s personal assistant. No attempt was made to create any illusion, for anyone’s benefit, in relation to the applicant’s caring duties.
The applicant volunteered that he had “been doing a fantastic job” of looking after the respondent. The evidence of a number of witnesses, and particularly Ms S and Ms N, which the Court accepts, is to the contrary. Confronted with the allegations made by Ms N in her affidavit evidence, the applicant responded that she was “lying” and was “telling lots of lies”. Why she would do so was not suggested. The Court does not accept that Ms N told any lies. Ms N was a most impressive and even handed witness of truth.
After being further pressed as to what month “mid ‘06” referred, and being unable to do so, the applicant conceded that he could not recall accurately when he moved into the respondent’s C home, although it had been “around Christmas”, although not Christmas 2006.
The conflicting versions of when the applicant’s association with the respondent commenced, and the sequence in which he claims that the association commenced, or developed, cannot be rationalised as innocent or inadvertent. The evidence of the applicant leaves little scope for doubting that he was consciously endeavouring to persuade the Court that the alleged de facto relationship had existed for the longest time that it could have.
It is tempting to think that the most significant of the applicant’s accounts of events is to be found in the letter written by his solicitor on 30 March 2010. As is not in doubt, that letter was written less than three weeks after the association ended, and prior to the commencement of litigation. Having accurately suggested that the association which commenced was one of “personal carer”, the letter did not suggest when, and in what circumstances, the alleged de facto relationship commenced. The applicant’s later affidavit evidence suggested that events occurred in the reverse sequence. His evidence at trial introduced a third version of events, as discussed earlier. The inconsistencies cannot be excused as inadvertent or inconsequential.
The applicant was cross-examined in relation to the circumstances surrounding his obtaining of the $37,000.00 deposit which he paid for a second motorcycle. As cannot be doubted, that acquisition was without the knowledge and consent of the respondent. Despite his alleged grief at his loving, caring relationship with the respondent being wrongly terminated by others, the applicant was sufficiently astute to recover the $37,000.00 deposit from the motorcycle dealers, thereby “beating” the respondent’s family and advisors “to the punch”. Although he was not successful in recovering the $15,222.000 deposit which the respondent had paid for a cruise, the respondent’s family and advisors beating the applicant to the punch on that occasion, the applicant’s distress at the wrongful termination of his relationship with the respondent did not prevent him from attempting to obtain the sum. As noted earlier, the applicant accepted and utilised his $7,377.50 severance pay without protest. His grief did not prevent the applicant from seeking a property settlement before the month of March had ended.

In the course of cross-examination the applicant confirmed that he had made a telephone call to the respondent in about May 2010 during the course of which he said, amongst other things “What if I had proof of us having sex” in the form of photos or videos, and the media “got hold of them” or words to that effect. The applicant volunteered that he had suggested to the respondent during that telephone conversation that if the applicant’s claim “went to court” and the media “got hold of it” the respondent would be severely embarrassed in the eyes of his family and friends, or words to that effect. The applicant had no such material, as he readily admitted in cross-examination. His demeanour when giving this evidence left little room for doubting the applicant’s resentment that the lifestyle he had come to enjoy so much had ended.
The evidence of the applicant in relation to what he said to the respondent in May revealed his vindictiveness. The applicant’s own account of what he said to the respondent would have left little doubt in the mind of the respondent that the applicant would not have hesitated to have involved “the media” to embarrass or humiliate the respondent if he thought that to have been to his advantage. It is not in doubt that the respondent did not succumb to the pressure. It is tempting to think that he might have, if he had reason to fear the truth.
The applicant was cross-examined about expenditure he incurred at the P Hotel in Sydney for a week in September 2008. That expenditure, which was met by the respondent, totalled $9,520.00 for a period of seven nights. There is no suggestion that the respondent benefited from that expenditure, or that he was even in Sydney at the time. The applicant gave conflicting and unsatisfactory explanations of who benefited from the respondent’s unintended largesse on that occasion. Ultimately, perhaps realising that his answers had been less than convincing, the applicant suggested that he really could not recall these details as he had been “drunk” throughout that period. As with other evidence, in isolation this evidence is of minimal significance. Taken in conjunction with other evidence however it assists the Court in discerning fact from fiction.
The evidence is also significant in terms of the period during which the applicant was content to be absent from the loving caring relationship he claimed to have had with the respondent. The evidence is also consistent with the assertions of a number of witnesses in the respondent’s case that the applicant’s commitment to the care of the respondent was, at least, questionable by that time.
The applicant volunteered at one stage during his evidence that he was “living the life” during the period of his association with the respondent, as indeed the evidence reveals he was. The applicant was clearly not pleased when “the life” was denied to him in March 2010 and soon thereafter became determined, by commencing the current proceedings, to exact his financial revenge upon the respondent. His own evidence reveals that reality.
The applicant was cross-examined about allegations he had made that, in December 2009, the respondent had propositioned the applicant and his friends Mr D and Mr G, who were afforded generous hospitality by the respondent in his home and other places, to have group sex with the respondent. The evidence in relation to the alleged proposition is significant, although not in ways asserted on behalf of the applicant.
In his affidavit, the applicant deposed that in December 2009 the respondent, who had “drunk a lot of wine” said to Mr D and Mr G and the applicant “let’s have a foursome”. He alleged that, when they refused, the respondent continued to make his request and “groped at their bodies”. Thereafter, the applicant asserted that the respondent was “banging on their bedroom door”.
In cross-examination the applicant initially denied that the respondent had “groped” Mr D or Mr G. When reminded that in his affidavit he had sworn something different, the applicant reiterated that the respondent had “groped” Mr D and Mr G.
The applicant was referred to the evidence-in-chief of Mr D in relation to this topic. Mr D suggested in his affidavit that the respondent had requested “sex with at least seven guys”. Mr D deposed that he and Mr G had gone to the applicant’s bedroom and subsequently hearing a “knock” on that door.
The applicant asserted that the three men had been in the bedroom occupied by Mr D and Mr G at the time the respondent was “banging on the bedroom door”. Pressed to explain the discrepancy between his affidavit and that of Mr D, the applicant suggested, for the first time in his written or oral evidence relating to this topic, that he was “intoxicated that night too” and thus unable to be clearer in his recollection. The applicant further suggested that Mr D was “probably intoxicated too”.
The unsatisfactory nature of the evidence of the applicant is such that, only if the evidence of the respondent was totally discredited, or the evidence of other witnesses relied upon by the applicant so compelling, could the applicant’s version of disputed facts be preferred to that of the respondent where two are in conflict.

Other witnesses in the applicant’s case who were not cross-examined

The deponents of a number of affidavits read in the applicant’s case were not required for cross-examination. Their evidence is thus entitled to be accepted. Mr B, who married the applicant’s maternal grandmother in September 2008, swore an affidavit. Apart from deposing to the generosity which he and his wife received from the respondent, nothing in Mr B’s affidavit advances the applicant’s case. Mr B’s evidence is as consistent with the existence of a de facto relationship as with its absence.
Mr B annexed to his affidavit a Christmas card sent to him by the applicant in December 2009. Not insignificantly, the Christmas card contains two photos of the respondent and it bears, in clear printing the word “[respondent’s name]”. The applicant does not appear in the card, nor does it refer to him. It will be remembered that the applicant does not suggest that the true nature of his association with the respondent was ever concealed from, or misrepresented to the applicant’s family. The applicant alleges that, by Christmas 2009, he and the respondent had been in a de facto relationship for three years.
Mrs B’s affidavit is in very similar terms to the affidavit of her husband. Whilst the affidavit purports to suggest that “[Mr Dalrymple] and [Mr Barry] provided” various things for the benefit of Mrs B and her husband, it is not in dispute that it was in fact the respondent who provided the various things to which Mrs B referred. Beyond reiterating the respondent’s generosity towards herself and her husband, Mrs B’s affidavit does not advance matters.
The affidavit of Ms E, the applicant’s cousin, cannot advance the applicant’s claim, although it too reiterates the respondent’s generosity to members of the applicant’s family.
Ms R, the applicant’s aunt swore an affidavit in the proceedings. The affidavit also records the generosity of the respondent to members of the applicant’s family. Beyond deposing to observing the applicant and the respondent “touching one another on the shoulders” and usually sitting together “in close proximity” the affidavit contained nothing which could advance the applicant’s claim. Ms R’s evidence was as consistent with the existence of a de facto relationship as it was with its absence.
Mr L swore an affidavit. He was not required for cross-examination on that affidavit. Mr L deposed to having had a “relationship” with the applicant from about 1992 to 2000. Mr L deposed to first meeting the respondent in July 2008, when he flew to far north Queensland for the applicant’s birthday. Mr L deposed to observing during that visit that the applicant was “not a very keen cook”. Mr L deposed to seeing the applicant “standing behind [the respondent] by the pool, with his hand on his shoulder on a couple of occasions”. Apart from deposing to generosity he received from the respondent, Mr L’s evidence contained nothing which impacts upon the probabilities in this case, although, albeit to a limited extent, what he did not say is probably more significant than what he did say.

The evidence of the applicant’s mother, Ms Barry

Ms Barry, the applicant’s mother, was briefly cross-examined in relation to her affidavit of evidence-in-chief. In her affidavit evidence, the applicant’s mother also deposed to the generosity of the respondent to her and other members of her family. She deposed to the applicant and respondent as “often putting an arm over the other’s shoulder” in January 2007, talking about things “they had done together”, “restaurants they had been to, outings they had and so on”. The applicant’s mother deposed to being in the company of the applicant and the respondent on numerous occasions at various places, including the respondent’s homes.
The affidavit is instructive, as much for what it does not say as for what it does. Objectively, it is surprising that if, as the applicant asserts, a de facto relationship existed between himself and the respondent, that the applicant’s mother did not allege observations of statements or actions consistent with such a relationship. It can be safely be inferred that what Mrs Barry said in her affidavit was as much as she could truthfully say. Nothing in the applicant’s mother’s affidavit suggests anything more than a generous and caring employer/employee association, which is what the respondent suggests the association to have always been.
In cross-examination, the applicant’s mother revealed herself to be an honest and impressive witness. Ms Barry’s evidence was that it was probably November 2006, or perhaps a little earlier in 2006 that she became aware of an association between the applicant and the respondent. Ms Barry rejected suggestions that the association could have commenced before Christmas 2005, or early in 2006, or in “mid 2006”.
The applicant’s mother agreed that from the first time she met Mr Dalrymple she observed him to have “significant medical problems”, and that Mr Barry had been “employed” to “look after him”, as he “needed someone to look after him”.
Further cross-examination of the applicant’s mother in relation to the times during and circumstances in which she was in the company of the applicant and the respondent reinforce the impression that, had there been a de facto relationship between the applicant and the respondent during those times, she would have seen, and deposed to far more than she did, or was able to.
As an honest witness, the applicant’s mother was clearly not willing or able to exaggerate or otherwise embellish her evidence. It can safely be concluded that, being understandably supportive of her son, and aware of the significance of the existence or absence of a de facto relationship between him and the respondent, Ms Barry would have deposed to all such facts and circumstances as she truthfully could to advance that claim. As noted earlier, the affidavit is significant for what it does not say, and particularly so having regard to the number, nature and duration of the opportunities Ms Barry had to observe the indicia of a de facto relationship between her son and the respondent, if one existed.
There is no suggestion, nor could there be, having regard to the terms of Ms Barry’s own affidavit, that the applicant’s sexual preference for males over females in any way deflected her from deposing to what she saw. Nor would it have led the applicant to conceal a de facto relationship from her, if one had existed. The applicant’s mother can be accepted as a witness of truth. Her evidence is ultimately however more supportive of the case for the respondent than for the case of the applicant.

The evidence of Mr D

Mr D swore an affidavit and was cross-examined on that affidavit. The affidavit is significant for a number of reasons. Mr D deposed to having stayed for three to four weeks over December 2009 or January 2010 at the respondent’s home at C. With objectionable material removed, all that remained of Mr D’s evidence was the following:
9.      One night, when we had been there for about a week, we had had dinner together and were then having a drink. [Mr Dalrymple] was drinking red wine. He then to [sic] his bedroom. Then [Mr Barry] came out and said “[Mr Dalrymple] wants to talk to you”.
10.    All three of us then went into [Mr Dalrymple’s] room. He was lying in bed with a glass of wine. It was quite common to chat to [Mr Dalrymple] when he was lying in bed.
11.    [Mr Dalrymple] said: “I want you to organise for me to have sex with at least 7 guys” or similar. I just tried to ignore that comment and changed the subject. We then left the room and continued watching TV, relaxing and hanging out by the pool. My partner and I then went into [Mr Barry’s] room at about 10 pm, I suppose. We were watching TV. Some time after that I heard a knock on [Mr Barry’s] bedroom door. It was about ½ hour - 40 minutes later. I heard [Mr Dalrymple’s] voice. He was saying something like “I want sex. What are you doing in there?” or similar. We just ignored it. [Mr Barry] went out and talked to him. I heard raised voices, although I don not know what was said. After that [Mr Dalrymple] went away. He kept calling out to [Mr Barry] for the next few hours and [Mr Barry] had to go to him. [Mr Barry] said “He wanted to have sex” or similar. I later heard someone (I assumed [Mr Dalrymple]) walking around the house.
12.    This incident was not mentioned the next day – we just went on like nothing had happened.
13.    We continued doing things with [Mr Dalrymple] and [Mr Barry] – going out for meals, drinks, the beach, drives in the bush (such as to …).
14.    We also went out together on a luxury boat called “…” for about a week. [Affidavit of Mr D filed 13 September 2010, pars 9-14].
A number of observations in relation to the affidavit are appropriate. The affidavit is significant for what it does not say given the time that Mr D spent in the respondent’s home. Over the period of three or four weeks, Mr D had ample opportunity to observe acts of familiarity, companionship, support and the like consistent with the existence of a de facto relationship. He deposed to no such things. There is no suggestion that the applicant was masking the true nature of his association with the respondent during this time.
The sole matter to which Mr D did depose however is curious. Without suggesting that, if it occurred, conduct of the kind Mr D alleges is necessarily entirely inconsistent with the existence of a de facto relationship, it is difficult to accept that, had he been in the caring, loving, committed, monogamous relationship that the applicant asserts to have existed, and been in existence at that time, the respondent would, even if affected by alcohol, have advanced the proposition asserted by Mr D.
On no rational basis could the incident asserted by Mr D have assisted the applicant’s claim that a de facto relationship existed. Why then was an affidavit committed essentially to this incident sworn and relied upon? Having regard to the applicant’s own evidence of attempting to pressure the respondent to pay money to him in May 2010, Mr D’s evidence can reasonably be seen as an attempt to discredit the respondent in the eyes of the Court. Whatever the intention of the affidavit, cross-examination of Mr D denies his evidence any entitlement to acceptance. To refer to some of Mr D’s evidence is to capture some, but not all of its flavour. Only by seeing and hearing Mr D can the flaws in his evidence be fully appreciated.
The evidence of the applicant was essentially that, during the visit of Mr D and Mr G, all four men then resident in the respondent’s household had been imbibing alcohol liberally. Mr D’s evidence in relation to alcohol consumption was initially contradictory, and ultimately that he simply could not remember how much alcohol had been consumed. Mr D was somewhat vague as to when the alleged “proposition” was made, ultimately accepting that it was probably a couple of days after the respondent had been hospitalised as a result of a fall which he suffered whilst the applicant, Mr D and Mr G were aloft in a hot air balloon.
Mr D’s evidence in relation to the respondent’s condition at the time was somewhat confused, at one point suggesting that the respondent was “fine”, whilst at other times conceding that the respondent had been confined to bed at the time and was quite injured. Mr D volunteered that the respondent’s alleged reference to “sex with at least 7 guys” was “only a comment” and that the respondent had been “a little bit tipsy”.
Mr D deposed to it being “standard procedure” that the applicant poured wine for the respondent. Mr D was unclear about the medication which the respondent was then taking, but volunteered that “the man drinks all day”, starting as early as 8.00am most mornings, 10.00am on others. Mr D suggested that the applicant would “slow him down” with the drinking. That is a suggestion not advanced by the applicant.
It will be remembered that the evidence of the applicant was that the respondent rarely awoke before 10.00am, and expressed his displeasure if he was awoken prior to that time. Mr D gave evidence that he had only seen the respondent intoxicated on Christmas Day. He initially asserted that the applicant had not been drunk on the night of the alleged proposition, later suggesting that he had. Mr D could not recall whether his partner Mr G had been drunk or not, or what he drank.
Mr D was a most unsatisfactory witness. Whether, contrary to his assertion, his vagueness was referrable to much of the 3-4 weeks that he and Mr G spent at C being blurred by a haze of alcohol, or being referrable to some vagueness of memory, or difficulty with the truth, his evidence cannot be accepted. Even if it could, as noted earlier, that would provide somewhat more support for the evidence of the respondent’s case than it would for the case of the applicant.

The evidence of Mr G

Mr D’s partner, Mr G, swore an affidavit in virtually identical terms to those of Mr D’s affidavit, save in one important respect. The applicant had suggested that the respondent sought to have sex with three other men. Mr D suggested a figure of seven. In his affidavit, Mr G did not suggest a figure beyond “a couple of other boys”.
In oral evidence, Mr G volunteered that the respondent had expressed a desire for sex with “about eight other boys”. When reminded that his affidavit had not suggested any number of sexual partners as being suggested by the respondent, Mr G agreed that the figure had “now popped into his mind”. Why it had, he could not explain. Mr G could not recall whether the alleged proposition was made before or after the fall on the day of the hot air balloon ride.
Earlier in his cross-examination Mr G ventured that he did “not have a good memory”. His evidence thereafter was consistent with that proposition, unless, which the Court does not find, he was being deliberately vague. Mr G, who is employed as an engineer on a part time basis was unable to recall how many hours he worked in the week prior to giving his evidence. Mr G suggested that every morning, when he got up the respondent was drinking in his bedroom, that being as early as 9.00am on most days when he had been at C. Mr G volunteered that the respondent “drank all day” and was always in bed, he having not seen him out of bed in the 3-4 weeks when he was at C. Mr G clarified that he had not once seen the respondent walk around during the time he was at C.
Although keen to suggest that the respondent had been drinking constantly during his time at C, and that he had never seen the applicant providing wine to the respondent, or keeping his red wine glass “always full”, Mr G was vague about events in the household at that time. He was clear however that the applicant did not cook often, and that most of the time he, the applicant and Mr D ate at pubs, restaurants or takeaways. The absence of the respondent from those meals is not insignificant.

Mr G was “not too sure who fed the respondent”. Mr G ultimately conceded that he was not sure about much in relation to the time he spent in the respondent’s home at C. Mr G was sure about one thing however, that being that the respondent had not “groped” him or touched his body on the night of the alleged proposition.
Mr G’s evidence provides greater support for the respondent’s case than it does for the case of the applicant. That said however, the vagueness and uncertainty which permeated Mr G’s evidence suggests that his evidence should be entitled to limited weight. Such weight, as the evidence is entitled to however, provides more support for the case of the respondent than it does for the case of the applicant.
As with Mr D, and other witnesses in his case, the applicant did not suggest that he had been other than open about the nature of his association with the respondent at any time when those witnesses had been present.

The evidence of Mr U

Mr U swore and affidavit and was cross-examined in support of the applicant’s case. Mr U deposed to having lived in a de facto relationship with the applicant from “late 1999 to late 2005 or early 2006”. During which time the applicant was also his carer, as Mr U was then ill.
Mr U asserted that in late 2005 on “a couple of occasions” he went to the respondent’s home at C with the applicant and stayed there, the applicant introducing him to the respondent as his “boyfriend”.
Mr U deposed to a day “around early 2006” when a conversation allegedly occurred with the respondent in which the respondent asked Mr U whether he would “allow” him to become the applicant’s boyfriend. Mr U deposed to being “shocked” by the respondent’s request, notwithstanding which he asserted that “sometime shortly after” he said to the respondent, in the presence of the applicant “I told [Mr Barry] that you and he should be together. You have to promise that you will look after him. You know he can [sic] impetuous at times”. The respondent is alleged to have replied “You don’t need to worry. I will always look after [Mr Barry]. And if you need any help to get yourself sorted out just ask me”.
Mr U asserted that the process of separating from the applicant then began, the applicant moving out of their joint bedroom, and then moving to the respondent’s home. Thereafter Mr U asserted that “on most days” he would go to the respondent’s home “for a drink or cigarette”. Mr U deposed to thereafter not having “sexual relations” with the applicant but to being “still affectionate” in ways he described. Mr U deposed that the applicant and the respondent would sit side by side on the sofa, with their “arms around each other and touch one another”. His evidence leaves no room for thinking that the applicant attempted to conceal the true nature of his association with the respondent from Mr U. Mr U deposed to staying in each of the Victorian homes of the respondent “in about late 2006 or early 2007”. He gave no evidence as to any domestic arrangements he observed during that period of 4-6 weeks.
At the commencement of his cross-examination, Mr U confirmed that his affidavit evidence was “absolutely true and correct”. Mr U said that it could have been November 2005 when the applicant advised him that he had a “client called [Mr Dalrymple]”. Mr U confirmed that he and the applicant were still in a relationship as at November 2005 but that by Christmas 2005 the applicant was increasingly staying at the respondent’s home at C.
When informed, accurately, that he was the only party or witness in the case who made that claim, Mr U appeared to be less certain about his dates. When pressed by Senior Counsel for the respondent in relation to when the applicant commenced to reside at C, Mr U, by reference to a birthday cake he recalled making for the applicant in July 2006, suggested that may well have been the time at which he asserted the conversation in which the respondent sought Mr U’s consent to the applicant becoming the respondent’s boyfriend had occurred. He then suggested the conversation had been in “mid 2006”, prior to the applicant’s birthday, by which time he asserted that the applicant was not living with him. How Mr U had not recalled that event in this context when drawing his affidavit was not explained.
Mr U said in cross-examination that it would be inaccurate to suggest that the conversation he alleged to have had with the respondent had occurred in “early 2006”, that period not according with his “recollection of events”. When reminded that in his affidavit [paragraph 7] that was precisely what Mr U had previously asserted on his oath, Mr U suggested that “if it were before July, that would fall into the early part of 2006”.
As was the applicant, Mr U was clearly attempting to date the commencement of the applicant’s association with the respondent from the earliest date he could. Unfortunately for him, although he only gave his evidence a little over two months later, Mr U had apparently forgotten what he had then sworn. Mr U’s attempts to rationalise the expression “early in 2006” to encompass up to July 2006 was unconvincing, and damaging to his credibility.
Mr U acknowledged in cross-examination that the applicant had been employed by the respondent as a carer, and that the respondent “needed a carer” to his observation. Mr U was reminded that nowhere in his affidavit did he suggest that the “carer role” which the applicant was to undertake for the respondent was contrived to “cover the real situation”. The omission of any such reference cannot have been inadvertent, particularly having regard to the evidence of the applicant.
Further cross-examination of Mr U with respect to the apparent health of the respondent when he first met him, his recollection of the dates when the association between the applicant and the respondent commenced and the conversation he alleged that he had with the respondent prior to commencing revealed further and significant inconsistencies. Mr U’s recollection of events was shown by cross-examination of him to have been unreliable.
As observed earlier, there is no suggestion by the applicant or Mr U that their relationship was anything other than stable and happy. It had subsisted for not less than five years. In cross-examination, Mr U admitted that he was “deeply in love” with the applicant at the time he alleges that he gave his consent to the applicant becoming the respondent’s boyfriend. Mr U volunteered that he was “still in love” with the applicant, although he added that he is still in love with other former male partners of his.
Mr U admitted that he was “upset” at the thought of losing his lover to the respondent, but asserted that he was “excited at the thought of him having a new outlook”. Mr U expressed the concern that he did not want the applicant to continue in prostitution. The evidence does not establish that the applicant’s involvement in male prostitution was borne out of economic necessity. Although it is implicit in Mr U’s version of events, neither he nor the applicant suggests that there was ever any discussion with the respondent in relation to the applicant’s continuing participation in male prostitution.
If the association between the applicant and the respondent was as the applicant asserts, it is surprising, particularly in the light of Mr U’s evidence, that there is no suggestion that the respondent ever said that he wanted the applicant to give up male prostitution. The topic never arose. There is an obvious and logical explanation for why that was so. If, as the respondent asserts, his association with the respondent was that of employer and employee, what his employee did in his private time would have been no business of his.
As the evidence of the applicant and the email records confirm, save for the limited hours in which the applicant performed duties for the respondent, he used his private time as his own, whether in going to lunch, riding the motorcycle he acquired with the respondent’s funds, or engaging in the various activities revealed by the records of his Internet activities.
Mr U’s account of how he ceased to be the applicant’s de facto partner and lover, and how the respondent assumed that role defies logic and common sense. Objectively, having regard to the defects in the evidence of the applicant and Mr U, only if the evidence of the respondent was unable to be believed, or if there was other evidence establishing the facts could the Court find on the balance of probabilities that the relationship commenced when the applicant and Mr U assert, or in the circumstances asserted by them. There is no other evidence capable of having that effect. The evidence of the respondent can be believed.
Mr U had a clear recollection, notwithstanding the numerous respects in which his recollection had by that time been shown to have been unclear, that from the first conversation he had with the respondent it was made clear to him that the applicant’s role was to be both “boyfriend” and “carer”. When reminded that, in his affidavit sworn a little over two months earlier, he had referred only to the role of “boyfriend” Mr U was unable to explain the inconsistency in his evidence.
It is tempting, but ultimately unnecessary to think that the applicant and Mr U were in communication during the course of the trial. The duration of the cross-examination of the applicant and interposition of the other witnesses, to whom reference has been made, provided an opportunity for the two to confer and adopt the policy that the carer and boyfriend or de facto partner roles commenced at the same time. No inference of that kind underpins the Court’s findings in relation to Mr U’s evidence.
When pressed by Senior Counsel for the respondent in relation to the apparent unreality of his version of how the applicant’s association with the respondent commenced, Mr U suggested that the respondent needed the applicant “more than he did” because of his “state of health”.
Later in his cross-examination, Mr U further contradicted his already contradictory evidence as to when the alleged request for permission by the respondent occurred, suggesting that the request, and Mr U’s response to it, had occurred “all in one day” or during the course of the same day. When reminded, Mr U was “absolutely clear” that this had been the sequence of events. The improbability of events of such magnitude having occurred in one day is obvious.
Mr U was unable to explain why, in an affidavit sworn only a little over two months earlier, he had deposed to the request being made on one day, to he and the applicant having had a discussion thereafter, and to a further conversation “some time shortly after” during which Mr U conveyed his consent to the applicant becoming the respondent’s boyfriend. Nowhere was it stated, or implied that this had all happened on the same day. A balanced reading of the affidavit suggests that these important developments occurred over a few days. Mr U’s attempts to rationalise the inconsistency in his evidence were unconvincing and damaging to his credibility.
In the course of his evidence, and perhaps inadvertently, Mr U referred to the applicant’s “job” with the respondent. He also suggested that the applicant’s association with the respondent was a “very good financial opportunity”. The evidence before this Court reveals that the association between the applicant and the respondent was at least a “good financial opportunity” for the applicant. For services which occupied him for about 15 hours per week, the applicant had a salary of $25,000.00 per annum plus superannuation contributions and, the evidence reveals, virtually no living expenses whatsoever, with luxurious holidays at frequent intervals.
The Court does not accept that there was ever a conversation of the kind alleged by Mr U.
The evidence of the applicant and Mr U leave the Court in no doubt that the termination of the financial opportunities which the applicant’s association with the respondent created for him, and the reality that the applicant was generously provided for by the respondent were instrumental in the decision to assert a de facto relationship, and make a claim against the respondent.

The evidence of the respondent

The respondent was cross-examined.
The cross-examination of the respondent encompassed his involvement in business activities during late 2009 and early 2010. The evidence of the respondent, candidly given, was that in his view, his mind was “as sharp as a tack” and that he “definitely” had the capacity to manage his financial affairs throughout the period of his association with the applicant.
The respondent readily conceded that his reputation was “important to him”, and agreed that he did not “particularly want” his children and friends to know that he had engaged in the sexual activities to which he admitted with the applicant, but did not “see it as the end of the world” if they did. The respondent’s disclosure of four episodes of mutual masturbation in the first affidavit sworn in the proceedings is consistent with that claim.
The Court asked the respondent a series of questions in relation to his reference to “mutual masturbation” with the applicant on four occasions in the second half of 2006. The respondent candidly described what had occurred, where it had occurred and in what circumstances. The respondent did not, in answering those personal questions in open court, attempt in any way to rationalise or excuse what had occurred.
The respondent was adamant that there had been no sexual intercourse between himself and the applicant since those four occasions. Nothing put to the respondent in cross-examination revealed any inconsistency in the respondent’s evidence in that regard, or any rational basis for rejecting his assertions as to the absence of sexual relations between himself and the applicant, apart from on those four occasions.
In cross-examination, the respondent was challenged as to the basis of his recollection that it was in September 2006 that the applicant commenced performing personal assistant and carer duties for him. The respondent suggested that he had made a contemporaneous note of that fact. The note was called for. A document was produced. Counsel for the applicant inspected the document. No questions were asked in relation to the document. In the circumstances it can be inferred that the document was consistent wit the respondent’s assertion that it had been September 2006 when the applicant commenced personal assistant and carer duties for him. It was not suggested to the respondent that, whatever the document said, it had been recently created.
The inconsistencies in the evidence of the applicant and Mr U, combined with the evidence of the applicant’s mother, and the unchallenged assertion of the respondent that he made a contemporaneous note of the commencement of the applicant’s personal assistant and carer duties in September 2006, enable the Court to be comfortably satisfied that the association between the applicant and respondent commenced in September 2006.
The respondent suggested that the written contract for the applicant’s employment by X Pty Ltd was constituted by Exhibit RDD 4 to which reference has earlier been made. There is no suggestion that RDD 4 came into existence at a time other than the date when it is suggested to have come into existence, 13 November 2006.The timing of the creation of RDD 4 is consistent with the respondent’s evidence that there was to be a trial period before the applicant’s employment was confirmed. The applicant’s evidence cannot accommodate any trial period. The evidence of the respondent establishes that there undoubtedly was a trial period.
As noted earlier, the applicant has never disputed that he was provided with a copy of the employment contract. Nor has he disputed any of its terms. Nor has the applicant ever asserted that he in fact performed more than about 15 hours per week on average as the respondent’s personal assistant.
The evidence of the respondent in relation to the applicant’s alleged employment is revealing, and supportive of the respondent’s assertion that the association between himself and the respondent was in the nature of employer and employee. Without referring to it in great detail, the evidence of the respondent, subsequently corroborated by his accountant Mr M, establishes that the applicant’s employment by X Pty Ltd as the respondent’s personal assistant was formalised in ways which the evidence does not reveal to have been unlawful or commercially unrealistic.
A good deal of the later cross-examination of the respondent and Mr M related to unrecorded and unpaid holiday leave of the applicant. There is no evidence before this Court to establish that the applicant had an entitlement to holiday pay. Having regard to the hours he worked and other benefits which he obtained tax free, the holidays and trips, the whole of the expense for which was met by the respondent, which the applicant enjoyed over the period of his association with the respondent, those benefits are likely to have exceeded any entitlement to paid leave which the applicant could conceivably have had during, and as a consequence of the period of his employment by X Pty Ltd and/or the respondent.
Significantly, and consistent with the respondent’s concern that the applicant’s employment in his household be as “tax effective” to the applicant as it lawfully could, the applicant was not paid wages as such for the duties he performed as the respondent’s carer. Nor did the respondent ever suggest that there had been any agreement that he would be. The evidence, including the applicant’s own evidence, reveals that the applicant enjoyed a standard of living well beyond anything he had previously experienced during the period of his association with the respondent. It is not in doubt that the respondent provided that standard of living. Save to the extent that the applicant was required by the respondent to make repayments with respect to the $61,000.00 unauthorised motorcycle purchase, the evidence does not reveal the applicant as ever having to “put his hand in his pocket” during the period of his association with the respondent, and the applicant does not suggest that he did.
The evidence of the respondent in relation to the applicant’s employment in his household reveals the respondent to have been a generous, undemanding, and, with hindsight, somewhat foolish employer. After being cross-examined in relation to the difficulties which, by 2009 the respondent claimed he was experiencing with the applicant in the performance of his personal assistant and caring duties, the respondent was asked why he did not “sack” the applicant. The respondent paused, then replied “I didn’t have the guts to”.
That answer had the “ring of truth”, an impression reinforced by the demeanour of the respondent throughout his time in the witness box, his readiness to make candid concessions where appropriate, and the reality that in no material respects was the respondent’s evidence-in-chief contradicted during cross-examination.
As noted earlier, the respondent was not challenged in cross-examination in relation to his evidence-in-chief as to the nature and extent of his sexual contact with the applicant. Nor was the respondent challenged with respect to his evidence-in-chief as to how he and the applicant met. The Court is able to find, and does find, that the respondent met the applicant in the course of the applicant performing technical services for him on the recommendation of a person, whose identity the respondent was never challenged to reveal.
The respondent was not challenged in relation to the alleged proposition for group sex in December 2009. That is unsurprising, and, with respect to Counsel for the applicant, had there been any attempt to cross-examine the respondent in relation to that alleged incident, Counsel would have been in the unenviable position of having to choose between three or four quite inconsistent versions of what might have been alleged to have occurred. Sensibly in the circumstances, Counsel did not traverse the incident with the respondent. The Court’s finding in relation to the alleged incident is simply that nothing of the kind asserted by the applicant, Mr D or Mr G, or any of the inconsistent versions of events asserted by each of them occurred.

The parties ate together on occasions, although the evidence of the applicant is that he went out for lunch without the respondent “on most days”. The applicant at times in his evidence maintained that he had skilfully and diligently attended to aspects of the respondent’s care, including what might be termed household chores, at other times suggesting in the face of evidence that he had not, that those tasks were not his responsibility.
On balance, to the extent that the parties had a “common residence” during their association, the Court’s findings are more consistent with that having occurred in the context of the applicant being a live-in personal assistant/carer than the parties living together on a genuine domestic basis.

(c) Whether a sexual relationship exists

It has not been established that a relevant sexual relationship existed between the parties. The evidence establishes that the parties had sexual contact on four occasions, the last of those in September 2006. On three of those occasions the applicant was paid to perform sexual services for the respondent. On the fourth occasion the applicant may have been paid to perform those services.
The sexual contact between the parties was not in the course of or pursuant to a de facto relationship. The first three occasions can be described as being of a purely business nature. The fourth may or may not have been, but did not occur at a time when the parties were living together on a genuine domestic basis.
The Court’s preference for the respondent’s evidence in relation to the absence of a sexual relationship beyond that described by the respondent results from a number of findings the Court has made. As detailed earlier, there is no rational basis for rejecting the evidence of the respondent as to the absence of a sexual relationship between himself and the applicant, save to the extent admitted by him.
The unsatisfactory evidence of the applicant and Mr U, and lack of corroboration of their claims, and those of the applicant generally, leave the Court comfortably satisfied that the evidence of the respondent should be preferred to the evidence of either of them in relation to the absence of a relevant sexual relationship.
The evidence of credible witnesses, who were in a position to have seen something, or anything, consistent with the existence of a sexual relationship provides further support for concluding that the parties did not have a relevant sexual relationship. Those witnesses were, Ms N, to a lesser extent Ms S and the applicant’s mother, Dr J and, to an even lesser extent, Mr T.
The absence of observations of anything indicative of the existence, or possible existence of a sexual relationship is significant. In isolation, none of the evidence or lack of observations assumes great significance, but in conjunction, the evidence provides a substantial hurdle to accepting that there was a sexual relationship.
It is ultimately unclear what the applicant asserts the nature of the sexual relationship of the parties to have been, or when, where, in what circumstances or with what frequency such a sexual relationship is asserted to have occurred. As the respondent at all times disputed the existence of a sexual relationship, the absence of any suggestion to the respondent in cross-examination in this regard is of particular significance.
Also of significance is the sequence in which the evidence in relation to the question of a sexual relationship emerged. For reasons which are not entirely clear, and do not matter in any event, the respondent in the proceedings swore an affidavit of evidence-in-chief prior to the applicant doing so. In his affidavit filed on 19 July 2010 the respondent said:
(c) There was no sexual relationship between myself and Mr [Barry]. Early on there were 4 occasions on which we masturbated each other. This was after Mr [Barry] told me that he had been in the escort business. Most of these occasions followed a meal out which involved heavy drinking. Two of these occasions took place at the place where Mr [Barry] was living at the time. This was a 2 storied house which Mr [Barry] shared with 2 housemates. The room on the ground floor where the mutual masturbation took place on 2 occasions was specifically set up for sex. There was a double bed, a TV on a bench showing pornographic movies small changing area and a shower. The first 3 occasions of mutual masturbation took place before Mr [Barry] moved into the [C] property. I believe the last occasion took place shortly thereafter. Each occasion lasted only a short time and nothing else was involved. I paid Mr [Barry] $150.00 on the first 3 occasions. I cannot recall whether I paid Mr [Barry] on the last occasion. To the best of my knowledge and recollection, there have been no incidents of this nature since 2006. Mr [Barry] and I never slept together or shared a bed. We were not romantically involved. We never kissed, hugged, held hands or displayed any other gestures of affection towards each other. I was never interested in Mr [Barry] in a romantic way and I did not indicate to him that I was, nor did he make any advances. I say that I am and have always been heterosexual.
That affidavit was sworn prior to the applicant swearing his affidavit of evidence-in-chief. It is significant that, without knowing what the applicant would allege in relation to the existence of a sexual relationship, the respondent volunteered the matters set out above in his affidavit.
The respondent could permissibly, at the time he swore his affidavit, have simply asserted that there had been no sexual relationship between himself and the applicant in the context of a de facto relationship. That would not have been inconsistent with the respondent’s case. The respondent elected not to do that, but rather to volunteer information which, had he not, would only have emerged from a witness whose credibility has been significantly impaired. It may not have emerged at all. The applicant may not have thought that evidence of paid sexual contact would advance his case. Had the respondent not volunteered that information, and denied a sexual relationship with the applicant, the state of the evidence before this Court is such that a finding in those terms would have been likely. This is a factor which the Court is able to take into account in determining where the truth more probably lies. As noted earlier, none of the matters alleged by the applicant in relation to the alleged sexual relationship between the parties asserted by the applicant in his responding affidavit filed 28 July 2010 was really agitated with the respondent in cross-examination.
Whilst accepting that the absence of a sexual relationship is not necessarily fatal to the existence of a de facto relationship, where, as the applicant in this case sought to, the existence of a sexual relationship is advanced as an integral and important part of the alleged de facto relationship, a finding that it did not exist constitutes a significant impediment to the establishment of a de facto relationship.

(d) The degree of financial dependence or interdependence, and any arrangements for financial support, between the parties

The financial arrangements between the parties during their association are not in doubt. There were two broad components of the financial benefits derived by the applicant whilst he was living in the respondent’s home or homes.
However imperfect it may have been by reference to industrial relations or labour laws, although any imperfection in that regard has not been established, there was undoubtedly an employment contract between X Pty Ltd on the one hand and the applicant on the other. Pursuant to that contract the applicant was paid an annual salary of $25,000.00 per annum plus superannuation in return for the provision of personal services, in the nature of secretarial work for the respondent. In addition, virtually all the applicant’s living expenses were met or provided for, whether by X Pty Ltd or the respondent personally. The applicant received financial benefits, directly and indirectly, from the respondent in consideration of the provision of care by him for the respondent.
Whilst no attempt has been made to quantify those benefits, the evidence before this Court in relation to the monies which the applicant was able to access for his own use and enjoyment suggests that the benefits, over and above his X Pty Ltd salary, and the provision of virtually all his living expenses, which the applicant obtained were substantial.
The evidence before this Court does not establish that the direct and indirect financial benefits obtained by the applicant, whether from the respondent personally or X Pty Ltd, represented either inadequate or excessive remuneration for the services which the applicant was from time to time providing for X Pty Ltd and/or the respondent.
There was thus in that sense no financial dependence or interdependence of the parties. The applicant provided services to or for the benefit of the respondent. The respondent, or his alter ego, remunerated the applicant in various ways for those services. Whilst the respondent was undoubtedly a generous employer, as the extensive benefits which, wittingly or unwittingly he extended to members of the applicant’s family and friends confirm, the evidence does not establish that such generosity should be regarded as more than generosity to the family and friends of an employee. The respondent’s generosity was not inconsistent with an employment association.
It is not insignificant in this context that the respondent required the applicant to repay from his wages $500.00 per fortnight with respect to the applicant’s unauthorised expenditure of $61,000.00 of the respondent’s monies for the purchase of a motor cycle in early 2008. The evidence is that, as required by the respondent, the applicant in fact made 49 fortnightly repayments, totalling $24,500.00. The applicant accordingly, for almost the last 2 years of his 3½ year association with the respondent was repaying to the respondent monies which the respondent asserted, and the applicant impliedly acknowledged, he had wrongfully obtained from the bank account or accounts of the respondent and/or X Pty Ltd. That evidence is consistent with the respondent’s assertion as to the nature of his association with the applicant, and difficult to reconcile with the applicant’s assertion that the parties lived together on a genuine domestic basis.
The applicant was offered, accepted and utilised a termination payment calculated in the manner the letter forwarding that sum to him revealed. The manner in which the association of the applicant and the respondent was terminated, and the payment tendered to the applicant and the basis of its calculation, although of minor significance, are also consistent with the respondent’s assertion as to the nature of the association which the parties had.
This factor militates against finding that the parties had a de facto relationship.

(e) The ownership, use and acquisition of their property

The respondent was a man of means before he ever met the applicant. The respondent did not acquire any assets of significance during the period of his association with the applicant. There is no evidence that the respondent ever discussed his finances with the applicant, much less consulted him in relation to any aspect of them.
In 2007 the respondent sold an apartment which he owned in Melbourne prior to his meeting the respondent. The details of the sale of that property, and what the respondent did with the proceeds of sale of the property are not referred to in any evidence before this Court. There is no suggestion that the applicant played any part in the decision to sell that property, or in the sale itself. There is no evidence that the respondent consulted the applicant in relation to the sale of the property or the disposition of the proceeds of sale.
The absence of any evidence in that regard is difficult to reconcile with the applicant’s assertion that the parties were at the time in a loving and caring domestic relationship, and consistent with the absence of any intermingling of finances of the parties during the period of their association. Whilst the absence of intermingling of finances is not decisive, it is not insignificant that there is no suggestion that the respondent’s decision to sell the Melbourne apartment, in which he and the applicant from time to time resided, involved the applicant in any way.
To the extent that the applicant acquired property, the property of significance which he acquired during his association with the respondent included the motorcycle which he purchased, without the authority of the respondent to which reference has earlier been made, a second motorcycle which the applicant, again without the authority of the respondent, purported to purchase with a down payment of $37,000.00 in early 2010 and a Rolex watch, again without the authority of the respondent at a cost of $7,350.00 at Christmas 2009. The applicant acquired other property of less value without reference to the respondent.
It is difficult to reconcile the applicant’s unauthorised use of the respondent’s funds in the three significant respects to which reference has been made with his assertion that the parties were then in a loving and caring domestic relationship. The $37,000.00 deposit for the second motorcycle, and the $7,350.00 Rolex watch have both been retained by the applicant.
The ownership, use and acquisition of property does not support the applicant’s claim that the parties lived together on a genuine domestic basis.

(f) The degree of mutual commitment to a shared life

The Court’s findings do not support concluding that there was a mutual commitment to a shared life, of any degree.
There is no evidence of the parties having planned a future together, or, irrespective of any discussions in that regard, taken steps consistent with such an intention.
With the possible exception of the extensive and expensive travel for which the respondent paid, there is no evidence that the parties had shared interests or shared activities. The evidence of the declining standard of personal assistance and care provided by the applicant, his increasing utilisation of the respondent’s funds for purposes unrelated to the respondent, and maintenance of a life, or virtual life, quite independent of the respondent militate against finding that the applicant had any commitment to a shared life with the respondent, save to the extent that he wished to continue “living the life” which was available to him in the respondent’s household.
The respondent denied having any emotional attachment or commitment to the applicant, or to a life shared with him. Nothing emerging from the cross-examination of the respondent, or any witnesses in his case provides a rational basis for rejecting that assertion. Nor does any circumstantial evidence. The evidence before this Court reveals an absence of any commitment to a shared life of the kind which might reasonably been expected had the parties been living together on a genuine domestic basis.

(g)The care and support of children.

This provision has no application.

(h)The performance of household duties.

The only way in which this provision could assume significance in the circumstances of this case would be by impermissibly assuming that the role of the applicant must, or should have included “household duties”. The Court’s findings in relation to that topic would thus raise an obstacle in the path of the applicant’s claim. That would not be fair to him. The respondent did not suggest that “household duties” were part of the applicant’s duties as his personal assistant or his carer. To criticise the applicant for not performing such duties, or performing them indifferently would in these circumstances be unfair. As noted earlier, the evidence in relation to these matters is relevant to the extent that it raises questions as to the applicant’s commitment to his alleged relationship with the respondent that he would allow the household to be in the state described by Ms N and Ms S. This factor neither supports nor impedes the applicant’s claim.

The reputation and public aspects of the relationship.

There is no evidence before this Court that the reputation and public aspects of the relationship of the applicant and the respondent were consistent with their having lived together on a genuine domestic basis.
The applicant asserted that this was by design, at the request of the respondent, in the interests of his image with his family and friends. The fact that the respondent’s family and friends saw nothing to suggest the possibility that the parties were living together on a genuine domestic basis is of minor significance, particularly having regard to the infrequency with which the evidence reveals that the respondent saw his family, his accountant and friends such as Mr and Mrs T.
The absence of any evidence from witnesses in the applicant’s case is however of significance given that there is no suggestion that the applicant’s family and friends were unaware that the applicant was “gay”. The affidavit evidence of virtually all of the applicant’s family refers to the applicant being “gay”. There was no reason to conceal the true nature of the parties’ association from those persons.
It is not insignificant that the highest that any admissible or credible evidence of the public aspects of the relationship achieves is the touching of a shoulder or the placing of an arm around the shoulder. As noted earlier, given the opportunity which Ms N, Ms S and the applicant’s own mother had to observe, however inadvertent, any acts consistent with the parties having lived together on a genuine domestic basis, the absence of any evidence of that kind is significant. It is inconceivable that these truthful witnesses would not have seen something, if there had been anything to see.
Having regard to the matters referred to in s 4AA (2), and the Court’s findings of fact with respect to the matters therein referred to, the Court is not satisfied on the balance of probabilities that the parties ever lived together on a genuine domestic basis. Although it is unnecessary to definitively find what the relationship was, it can perhaps best be described as in the nature of a “convenient commercial arrangement”, particularly for the applicant.
Section 4AA (3) makes clear that no particular finding is necessary to decide whether the parties had a de facto relationship. The Court approaches the matter on the basis that, in order to be satisfied that a de facto relationship existed, the cumulative effect of facts and circumstances consistent with such a relationship existing must be established on the balance of probabilities. Subject to what follows, the Court cannot be satisfied of those matters in the circumstances of this case.
In MW v Director-General, Department of Community Services (2008) 82 ALJR 629, Gleeson CJ said (at page 635):
It is the common intention of the parties as to what their relationship is to be, and to involve, and as to their respective roles and responsibilities, that primarily determines the nature of that relationship. The intention need not be formed in terms of legal status: to some people that is important; to others it is a matter of indifference… The intention may be expressed, or it may be implied.
The Court finds there to have been no common intention, expressed or implied, that the parties’ association was to be a de facto relationship. The Court has made findings as to the common intention of the parties as to their respective roles and responsibilities. They were at all times consistent with an employer/employee relationship, as asserted by the respondent. The Court’s findings as to the roles and responsibilities undertaken by the parties leave no room for concluding that, irrespective of any absence of the intention to do so, the parties at any time had a de facto relationship.

Section 4AA (4) leaves open the prospect of other factors, not referred to in s 4AA (2) assuming significance in determining whether a de facto relationship has been established. It is relevant in that context to have regard to the comprehensive written submissions of Counsel for the applicant.
Under the heading “Matters relating to the asserted employment relationship”, Counsel for the applicant referred to eight particular matters in support of his contention that it was “unlikely that the applicant had a genuine employment relationship with [X Pty Ltd] as asserted by the respondent however, and more to the point, it would be almost impossible to conclude that the applicant had an employment relationship with the respondent (this being the essential point of the respondent’s case)”.
The evidence before the Court establishes that although it may have had some unusual attributes, the applicant had a genuine employment relationship with X Pty Ltd. There is evidence of a contract for employment, and of the payment of wages and superannuation contributions consistent with that contract of employment. Mr M, the respondent’s accountant, testified that, at the time those arrangements were put in place he was satisfied that the arrangements between the applicant and X Pty Ltd did not contravene the provisions of the Income Tax Assessment Act. Nothing to which the Court has been referred establishes that the employment contract was in any way invalid, illegal or other than what it purported to be. The applicant has never suggested that the employment contract, a copy of which was given to him in November 2006, did not accurately reflect what occurred thereafter.
The Court does not conclude, or need to conclude that the applicant had an employment relationship with the respondent in the strict legal sense. The Court has earlier set out what emerges as having been the financial provision which the respondent made for the applicant, or to which the applicant “helped himself”. That evidence establishes that, in combination, the applicant was at least adequately recompensed for the services which he rendered, by or on behalf of the respondent, whatever their true nature according to the law of contracts.
The fallacy in this argument however is that accepting that the respondent has not proved an employment relationship between himself and the applicant with respect to the care to be provided for the respondent by the applicant does not, as this submission implies, assist the applicant’s claim. Why that is so has essentially been suggested earlier in these reasons. To reiterate however, the financial arrangements between the parties were more consistent with an employer/employee relationship than with the parties living together on a genuine domestic basis. The deficiencies in the evidence in support of an employer/employee relationship do not overcome the deficiencies in the evidence in support of the applicant’s assertion that a de facto relationship existed.
Under the heading “Matters relating to whether or not the applicant’s spending from accounts to which he had access was known to the respondent or those advising him”, a number of submissions were made. It was ultimately submitted that it was “difficult to see how the respondent’s contention that the applicant engaged in ‘unauthorised spending’ over an extended period of time could be supported. The respondent either approved of or acquiesced in this expenditure”.
The Court has earlier recorded its conclusions in relation to the applicant’s utilisation of funds of the respondent which the respondent enabled him to access. There is little doubt that, until early 2008, the applicant performed his duties as personal assistant and carer in a satisfactory manner and appropriately deployed funds of the respondent. The testimony of a number of witnesses whose evidence the Court accepts, reveals that, from some time in 2008, the respondent’s health was in decline and that the applicant increasingly utilised the latitude which, consciously or otherwise, the respondent permitted him with respect to his bank accounts.
Whilst it can be said that, at least to some extent, the respondent acquiesced in the applicant’s unauthorised expenditure, the real thrust of this submission cannot stand in the face of the unchallenged evidence that, in early 2008, when the respondent learnt that the applicant had purchased a $61,000.00 motorcycle without his knowledge or consent, the respondent required the applicant to make regular repayments of the monies the applicant had thus used. The evidence in this regard could not be clearer, and in isolation would be fatal to this submission.
The evidence (Exhibit R2 yellow highlighted entries) clearly shows significant expenditures on the respondent’s credit card facilities by the applicant in May 2009 of which the respondent had no knowledge, and could not at the time have had any knowledge. Similar observations apply to the applicant’s August 2008 expenditures. The December 2009 balloon and helicopter expenses incurred by the applicant, totalling in excess of $5,000.00 could not have been known to the respondent. There is no doubt that the applicant’s $7,350.00 purchase of a watch for himself in late 2009 was in the face of the respondent’s opposition.
It cannot be successfully asserted that, presumably out of love and affection for him, the respondent simply consented to, approved of or acquiesced in significant expenditures which were undertaken by the applicant without the respondent’s prior knowledge. To the extent that he did, in some instances, the respondent had little practical alternative to doing so. In some instances, the respondent remonstrated unsuccessfully with the applicant. In others, he did nothing. The evidence reveals why that is likely to have been the case.
Under the heading “Matters relating to the state of health, particularly as it impacted on the mental legal capacity of the respondent”, a number of submissions were made. It is unnecessary to refer in detail to those given the Court’s earlier conclusion that, although in different ways and at different times the respondent’s physical health was impaired, as on occasions his judgment may have been by virtue of substance ingestion, at no time did the respondent lack the capacity to make his own decisions, particularly in relation to the termination or retention of the applicant’s services as a personal assistant and/or carer.
No part of the Court’s determination of these proceedings involves a finding of fact that the respondent did not know or understand what was happening around him. The Court accepts the evidence of the respondent, and those witnesses who corroborated his evidence in that regard, that the respondent lacked the “guts” to sack the applicant. The respondent knew that he wanted to “sack” the applicant, and why he wanted to. His explanation for failing to do so was corroborated by Ms N.
It is unnecessary to refer in detail to the submissions on behalf of the applicant as to “the extent of sexual relations between the parties”. Those submissions rely upon findings of fact which this Court, for reasons it has detailed, has not made.
Similar observations apply to the submissions with respect to “The timing of the commencement of the relationship and/or employment”. Having seen and heard the evidence of the respondent, and having regard to other incontrovertible evidence, there is not the slightest doubt that the respondent’s reference to the employment relationship commencing on 8 February 2006 was an error on his part. It is erroneous to suggest that applying “latitude” to that evidence is inconsistent with the Court’s findings in relation to the evidence of the applicant and his witnesses.
Counsel for the applicant relied upon the credit card facility made available to the applicant and submitted that it was “inconceivable that a card with a $20,000.00 limit would be given to a mere employee” in the circumstances in which it was. The Court does not accept that such is the case. Why, albeit with hindsight unwisely, the respondent made that facility available to the applicant was explained by the respondent. The explanation was plausible. It is to be remembered that, by the time the applicant commenced his association with the respondent, the respondent’s mobility was limited. Moreover, as the employment contract itself makes clear in November 2006 the applicant was to be reimbursed for expenditure on behalf of the respondent. The credit card facility was not inconsistent with that intention.
In cross-examination the respondent was not challenged in relation to the basis upon which he either permitted the applicant to access his credit facilities, or ceased to withdraw them. The evidence does not suggest any rational basis for the respondent to have withdrawn the applicant’s ability to operate his credit card until 2008. On the first occasion when the applicant was found to have abused the credit card facility (to the tune of $61,000.00) the respondent acted swiftly and decisively, requiring the respondent to make fortnightly repayments of his unauthorised use of the respondent’s funds. Not only did the respondent require the applicant to make those repayments, he required them to continue until virtually the time the association ceased.
There is a curious irony in this submission. On the one hand, the applicant and his witnesses went to great lengths to portray the respondent as a helpless drunk. Now it is asserted through the applicant’s Counsel, that the respondent should be seen as having at all times the knowledge and capacity to have done something about the applicant’s activities.
As noted earlier, in a number of instances (such as May 2009) the applicant’s use of the respondent’s funds occurred in circumstances which could not have been known to the respondent, and about which he could not have done anything. It is also difficult to accept that the applicant would, as the evidence makes clear he did, have utilised the respondent’s funds in the ways he did without first referring to him, or doing so in the face of the respondent’s stated opposition, if the parties were living together on a genuine domestic basis.
The Court has previously dealt with the alleged “proposition” for group sex. It is unnecessary to revisit that topic, other than to record that, for reasons previously given, the submissions on behalf of the applicant in that regard are devoid of substance.
The submissions in relation to the provision of adequate care of the respondent have essentially been dealt with earlier. The allegations of Ms N and Ms S do more than Counsel for the applicant asserts. Given the inability of the respondent to have undertaken any domestic duties, the evidence is significant in providing support for the Court’s conclusion that, from 2008 and until the relationship ceased two years thereafter, the applicant was providing little by way of services for or assistance to the respondent and concerning himself more with his own activities than those, real or virtual, with his friends. It is difficult to accept that an able bodied man such as the applicant, would allow the house in which he was allegedly living on a genuine domestic basis with the respondent, to consistently be as the Court accepts from Ms N and Ms S, the C property was.
The Court has earlier dealt with the assertions in relation to the request of Mr U.
No matters not falling within s 4AA (2), whether referred to by Counsel for the applicant or otherwise, changes the conclusion the Court has reached by reference to the s 4AA (2) factors.
Acknowledging the caveat of Powell J in Roy & Sturgeon, that so doing involves a value judgment relating to the particular association, and that there are no clear objective measures by which the existence or absence of a de facto relationship may be established, the Court is not persuaded that the parties ever lived together on a genuine domestic basis.
The application will accordingly be dismissed.

Costs

Counsel for the applicant sought that the costs be reserved. The Court will make orders that facilitate written submissions being filed and served.

I certify that the preceding three hundred and ten (310) paragraphs are a true copy of the reasons for judgment of the Honourable Justice I. R Coleman delivered on 15 December 2010.

Associate:

Date: 15 December 2010