Carras & Arvanitis - [2021] FCCA 1972

FEDERAL CIRCUIT COURT OF AUSTRALIA
Carras & Arvanitis [2021] FCCA 1972

File number(s): MLC 7795 of 2019

Judgment of: JUDGE HARLAND

Date of judgment: 24 August 2021

Catchwords: FAMILY LAW – threshold issue – whether a de facto relationship existed – consideration of the nature of the relationship – consideration as to credibility of the parties

Legislation:
Evidence Act 1995 (Cth), s 128

Family Law Act 1975 (Cth), ss 4AA(2), (5), 90RD

Family Law Amendment (De Facto Financial Matters and Other Measures) Act2008 (Cth)

Federal Circuit Court Rules 2001, r 13.10

Cases cited:
Bigg v Suzi (1998) FLC 92-799

Crick and Bennett [2018] FamCAFC 68

Delamarre and Asprey [2014] FamCAFC 218

Gitane v Velacruz [2007] FamCA 183

Jonah & White [2011] FamCA 221

Lindon v Commonwealth (No 2) [1996] HCA 14

Moby & Schulter (2010) FLC 93-447

Sinclair and Whittaker [2013] FamCAFC 129

Number of paragraphs: 218

Date of hearing: 10, 11 & 17 May 2021, 11 June 2021

Place: Melbourne

Counsel for the Applicant: Mr Laidlaw

Solicitor for the Applicant: Farrar Gesini Dunn

Solicitor for the Respondent: Ms Arvanitis appeared in person
ORDERS

MLC 7795 of 2019

BETWEEN:
MR CARRAS

Applicant

AND:
MS ARVANITIS

Respondent

ORDER MADE BY:

JUDGE HARLAND

DATE OF ORDER:

24 AUGUST 2021

THE COURT ORDERS THAT:
1.The respondent’s application in a case filed on 24 October 2021 be dismissed.
2.The initiating application filed on 12 July 2019 and the response filed on 25 November 2019 be dismissed.
3.Pursuant to s.90RD of the Family Law Act1975 (Cth) the Court declares that the parties were not in a de facto relationship.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Carras & Arvanitis is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE HARLAND:

This decision concerns Mr Carras (“the applicant”) and Ms Arvanitis (“the respondent”). The threshold issue in dispute is whether or not the parties were in a de facto relationship. The matter has a protracted procedural history before the Court. It was not possible to conduct the threshold hearing until Covid-19 restrictions allowed this to occur. Further, the respondent is self-represented and due to her not having access to the technology to allow her to effectively participate in the hearing by way of Microsoft Teams, the matter was most appropriate to be conducted face-to-face, subject to Covid-19 restrictions.
PROCEDURAL HISTORY
On 12 July 2019, the applicant initiated proceedings seeking unparticularised property adjustment orders.
The respondent did not appear at the first return date on 17 September 2019. I made interim orders requiring the respondent to file and serve a Response, Affidavit and Financial Statement by 6 October 2019. The applicant had sought an abridged date which was refused. The applicant sought interim injunctions after being served with a writ with respect to mortgage arrears owing over the property situate at B Street, Suburb C (“the B Street, Suburb C property”) which is in both parties’ names. As the respondent lodged a complaint with the Australian Financial Complaints Authority (“AFCA”) the enforcement proceedings were placed on hold to enable that complaint to be determined. There is no evidence before the Court as to the status of that complaint.
On 9 October 2019, orders were made adjourning the proceedings to 3 December 2019 in the Duty List. At that time, the respondent had not filed a Notice of Address for Service or any responding documents. A notation was made attaching a bundle of correspondence between the applicant’s solicitor and the respondent with respect to the respondent not being present in Australia. A further notation was made with respect to the respondent and if the respondent failed to attend at the next occasion, the applicant may seek an order that he act as trustee for the sale of the property.
The respondent filed an Application in a Case and Affidavit on 20 November 2019 seeking to set aside the interim orders made in her absence. The respondent filed a Response to Initiating Application, Affidavit and Financial Statement on 25 November 2019. The Affidavit filed on this date is the same as the Affidavit filed on 20 November 2019. The substance of the respondent’s affidavits was the assertion that the parties were never in a de facto relationship.
On 9 December 2019, the respondent filed 3 affidavits, two of which were identical to the affidavit filed on 20 November 2019. However, one affidavit she filed was in fact filed as a Notice Disputing Facts or the Authenticity of Documents, and included a Notice of Address for Service, various pages included mark up and there was new material included on some of the pages.
On 12 December 2019, the respondent appeared in person. The applicant was represented by his solicitors. Orders were made adjourning the proceedings for mention on 20 January 2020, that order 1 of the Minute of Orders made on 9 October 2019 be stayed and that both parties file and serve written submissions prior to the adjourned date.
On 20 January 2020, orders were made as follows:
(a)for the parties to disclose bank statements to each other;
(b)restraining the parties from communicating with each other directly;
(c)extending filing for written submissions;
(d)releasing the transcript from 12 December 2019 to the parties by email;
(e)adjourning the proceedings to 17 February 2020.
The applicant filed an affidavit on 30 January 2020 and written submissions on 4 February 2020.
The respondent filed written submissions on 15 February 2020 and also on 16 February 2020. She did not file any further affidavits.
On 17 February 2020, orders were made adjourning the matter for final hearing on 21 May 2020 with respect to the threshold issue. The applicant did not pursue his interim application for injunctions with respect to the real properties.
On 21 May 2020, counsel appeared for the applicant. There was no appearance by the respondent who had experienced technical difficulties and dropped out of the MS teams hearing test and was unable to re-join. The trial could not have proceeded at that time as it was still not possible to conduct face-to-face hearings. The proceedings were adjourned to 26 October 2020 and orders were made with respect to filing of affidavits.
On 4 September 2020, Chambers emailed the parties advising that the hearing listed on 26 October 2020 be vacated due to Covid-19 restrictions. The proceedings were adjourned to 11 February 2021 to be held in person.
On 9 February 2021, the respondent indicated that she was in Greece and unable to participate in the hearing. The applicant’s solicitor advised that they did not oppose an administrative adjournment and requested the matter be listed for mention on 11 February 2021 instead.
On 11 February 2021, both parties appeared at the mention before me. Orders were made further adjourning the matter for final hearing on 10 May 2021. A notation was made that the trial would only be able to proceed if the respondent was in Australia. A further notation was made that the respondent was in Greece and obtaining assistance from the Department of Foreign Affairs and her return date was uncertain.
On 23 April 2021, the matter was listed before Registrar Sudholz for call over/compliance hearing. Registrar Sudholz made a number of notations including:
(a)The Applicant has indicated that they have nothing further to file by way of affidavit.
(b)The listing on 28 April 2021 is to determine whether the Respondent is in fact in Australia.
On 28 April 2021, Registrar Sudholz made further procedural orders and notations regarding the respondent and that she was in fact in quarantine in Adelaide and would be in Melbourne in time for the hearing on 10 May 2021.
Although listed for two days, the trial took place over four days on 10, 11 and 17 May 2021, and 11 June 2021.
RESPONDENT’S APPLICATION IN A CASE
The respondent filed an application in a case on 24 October 2020 seeking that the applicant’s application be struck out and she be awarded indemnity costs. In her application she referred to relying on the affidavits previous filed, court transcripts and the applicant’s non-compliance with court orders. She did not file a fresh affidavit in support. The application was adjourned to the threshold hearing.
Rule 13.10 of the Federal Circuit Court Rules 2001 deals with disposal of applications by summary dismissal. It states:
Disposal by summary dismissal
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b)the proceeding or claim for relief is frivolous or vexatious; or
(c)the proceeding or claim for relief is an abuse of the process of the Court.
When determining whether or not to summarily dismiss an application, the Court must look at the applicant’s evidence taken at its highest when considering whether or not the application has no reasonable prospects of success.
In the High Court decision of Lindon v Commonwealth (No 2) [1996] HCA 14 Kirby J said the following at paragraph 14:
The approach to be taken by the Court to the Commonwealth's application for summary relief is not in doubt:
1. It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against Government and other powerful interests. This is why relief, whether under O 26 r 18 or in the inherent jurisdiction of the Court, is rarely and sparingly provided (21);
2. To secure such relief, the party seeking it must show that it is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action (22) or is advancing a claim that is clearly frivolous or vexatious (23);
3. An opinion of the Court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination (24). Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment;
4. Summary relief of the kind provided for by O 26 r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of demurrer (25). If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts;
5. If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading (26). A question has arisen as to whether O 26 r 18 applies to part only of a pleading (27). However, it is unnecessary in this case to consider that question because the Commonwealth's attack was upon the entirety of Mr Lindon's statement of claim; and
6. The guiding principle is, as stated in O 26 r 18(2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the Court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the Court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.
Kirby J’s comments have been endorsed by the Full Court of the Family Court in several decisions since including Bigg v Suzi (1998) FLC 92-799 and Gitane v Velacruz [2007] FamCA 183.
The respondent’s application for summary dismissal is misconceived. In order to succeed in an application for summary dismissal it is necessary to establish that the application sought to be summarily dismissed has no reasonable prospects of success. In order to determine this, it necessary to consider the applicant’s case without reference to the respondent’s case. The applicant has raised an arguable case with respect to the parties being in a de facto relationship including living together and making financial contributions as well as purchasing property in joint names. As he has raised an arguable case it is necessary to test the evidence and determine the threshold issue.
The respondent queried the applicant’s compliance with order 3 of the orders I made on 21 May 2020, which required the applicant to file and serve one affidavit of evidence in chief with respect to the jurisdictional issue on or before 28 September 2020. The respondent complained that he had not complied with that order, however she failed to appreciate that what he elected to do was to rely on the affidavit he filed on 30 January 2020. It was open to him to do that. He filed affidavits by supporting witnesses on 28 September 2020 in compliance with order 4 of those orders.
I dismiss the application in a case filed on 24 October 2021.
CONDUCT OF THE TRIAL
The respondent clearly struggled with the court process, the nature of the proceedings and being required to respond. The Court has spent significant time explaining the nature of the proceedings to her and ensuring she had the opportunity to obtain legal advice. This included providing the parties a copy of the transcript of the hearing on 19 December 2019. The respondent did obtain assistance from the duty lawyer on that occasion and also indicated that she had a family member who is a barrister who would be able to assist her. Despite this the respondent has appeared for herself throughout the course of the proceedings and at the final hearing, and prepared her own documents. She did not prepare an updated affidavit. She tendered several documents during the course of the trial. She did not call any supporting witnesses.
At the commencement of the trial, the Court again explained the process for the trial in some detail to the respondent and where possible provided procedural assistance. However, it is necessary to be fair to both parties – not just to the person without legal representation. It is impossible to create an entirely even playing field and some unrepresented litigants are able to better present their case than others.
I explained that the issues for determination at the trial was the threshold issue of whether or not the parties were in a de facto relationship and the respondent’s application in a case, where she seeks the applicant’s application be summarily dismissed.
Due to these difficulties, I caused chambers to prepare the court book and provided the respondent with a hard copy, in addition to the electronic version which was provided to both parties. I directed that all of the affidavits the respondent filed be included in the court book. Confusingly, throughout the proceedings the respondent had refiled the same affidavit material multiple times, however with different annexures and with handwritten annotations on the documents.
Orders 5 and 6 provided for the respondent to file and serve one affidavit in chief and affidavits of supporting witnesses by 12 October 2020. She did not do this. It was for this reason, without objection. I allowed her to rely on all the affidavits she had filed previously which were not voluminous and contained several duplicates.
In the lead up to Court events the respondent would file multiple documents on the Commonwealth Court Portal that were not documents in proper form, and it was necessary for Registry to void those documents and provide her with procedural advice as to filing. Although I have not seen this correspondence, I am also aware, that the respondent would send multiple emails to Chambers and the applicant in the lead up to Court events, raising inappropriate material that either should have been put in affidavit form properly sworn and filed or raised in argument in open Court.
It is also clear throughout the proceedings that the respondent was incredibly suspicious of the applicant’s lawyers and particularly the solicitor with carriage of the file, as he had been an associate at another court before being admitted. She was convinced that this somehow meant that he had an advantage. Whilst I have no doubt that she was genuine in this belief, it was not reasonable. It is not uncommon for lawyers to work at Court prior to being admitted, whether as associates or in another capacity. There is nothing in the conduct I have seen by the applicant’s solicitors and Counsel that cause me any concern that they have acted in any way unprofessionally or unethically.
The trial was initially listed for two days. It required a further two days as the first 2 ½ days were occupied by the respondent cross-examining the applicant and his supporting witnesses. This is not a criticism of her at length. She was clearly across the issues in the case.
I had to intervene at several points during the respondent’s cross-examination of the applicant to clarify what the respondent was trying to ask and to tell the applicant to wait until she asked the question. At several points I had to tell both parties to stop arguing with each other. On several occasions throughout the cross-examination it descended into the two of them talking over each other and arguing rather than asking and answering questions, which made my task of assessing the evidence more difficult.
LEGAL PRINCIPLES
Section 90RD of the Family Law Act 1975 (Cth) (“Family Law Act”) enables the Court to declare that a de facto relationship existed or never existed. It also enables the Court to determine the periods of the relationship and when the relationship ended, as well as where each of the parties were ordinarily resident during the de facto relationship.
Generally de facto relationship must have existed for at least two years before the Court may make financial orders and must have existed until at least 1 March 2009 when the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) commenced.
There are two preliminary matters namely, that the parties must not be legally married to each other and must not be related by family. Neither of those apply here.
As Mushin J pointed out in Moby & Schulter (2010) FLC 93-447, the definition of de facto relationship in section 4AA of the Family Law Act is a very broad one.
Two people are defined to be in a de facto relationship “having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.”
In determining whether or not a de facto relationship exists, I must consider the whole of the circumstances of the relationship: see Sinclair v Whittaker (2013) FLC 93-550. The applicant has the onus of establishing that a de facto relationship existed on the balance of probabilities as he is asserting that as a jurisdictional fact. See Jonah & White [2011] FamCA 221.
Section 4AA(2) includes a number of criteria which the Court may consider in determining whether or not a de facto relationship exists. It is not necessary to make a particular finding about all or any of the matters listed. The Court is entitled to attach such weight on any of the criteria as may be appropriate in the circumstances of the case: section 4AA(5).

Section 4AA of the Family Law Act sets out the definition of a de facto relationship. Section 4AA(2) to (5) state the following:
De facto relationships
Meaning of de facto relationship
(2)Those circumstances may include any or all of the following:
(a)The duration of the relationship;
(b)the nature and extent of their common residence;
(c)whether a sexual relationship exists;
(d)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e)the ownership, use and acquisition of their property;
(f)the degree of mutual commitment to a shared life;
(g)whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h)the care and support of children;
(i)the reputation and public aspects of the relationship.
(3)No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4)A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
(5)For the purposes of this Act:
(a)a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and
(b)a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.
THE APPLICANT’S CASE
The applicant’s case is that the parties were in a de facto relationship from 2005 to 2019. The applicant says they met in 2004 and within a few weeks, started dating. In 2005, he says they had their first of many trips to Greece together. The applicant says they lived together in the respondent’s rented property at Suburb D from 2005 to 2008, and in 2008 purchased the B Street, Suburb C property. The applicant says they pooled their resources and attended family events as a couple, including his brother’s wedding in 2005 and his niece’s christening in 2013.
The applicant claims that throughout their relationship the respondent refused to acknowledge their relationship formally in any paperwork as she did not want her Centrelink benefits to be impacted.
In his trial affidavit, the applicant refers to a volatile relationship where the parties loved each other and had good times, but also became very jealous and regularly argued.
The applicant claims that over the years the respondent has taken him to see several solicitors and conveyancers, which he signed many documents with respect to the parties’ interests in the B Street, Suburb C property, that he cannot recall the nature of the documents and that he believes one was a financial agreement and others were statutory declarations and deeds. He claims he never received legal advice and did not understand the nature of the documents and says in his affidavit that the respondent was threatening to report him to the Australian Tax Office for not declaring his income from his weekend work. Despite being aware of the importance the respondent placed on these documents in denying that the parties were in a de facto relationship, the applicant provided little evidence with respect to these documents or indeed with respect to other documents annexed to the respondent’s affidavits. He had the benefit of those affidavits before he prepared his trial affidavit.
The applicant claims in his trial affidavit that the parties discussed having children together but they agreed not to as both already had children and he wanted to have the freedom to travel and they made trips to Greece most years.
The applicant also claims that he assisted the respondent with the care of her children whilst they lived with them, and taking them to various activities and helping with their homework and providing indirect financial support through purchasing groceries and paying utility bills for family. He does not expand on this claim.
The applicant claims in his affidavit that the parties were not a very sociable couple and that the respondent did not like his friends and he did not like her friends as many were telling her to leave him. He then referred to various family occasions they attended and annexed a series of photographs to his trial affidavit.
In 2014, the applicant was injured at work and received a lump sum compensation the following year. Several capital payments were transferred from the applicant to the respondent between 2015 in 2019.
The applicant says they bought a house together in Greece in 2016.
The applicant says they separated on 17 February 2019 and he filed his application with the Court some 5 months later. He says he has filed the application within time and has enlivened the Court’s jurisdiction.
The applicant called several witnesses in support of his case, all of whom were cross-examined by the respondent.
THE RESPONDENT’S CASE
The respondent says they were never in a de facto relationship. She was resolute on this point. In her affidavit filed 19 November 2019, she refers to various declarations and documents that the applicant has signed which she annexes to her affidavit where he says he has no interest in that property she denies that he made contributions to the B Street, Suburb C property. She denies his claims to have made cash contributions for the property expenses prior to 2018 and complains that the applicant has not declared the income he earns from work in his tax returns. She denies his allegations that she would take him to various solicitors and conveyancers and have him sign documents and says he is not annexed such documents to his affidavit. He also has not provided any specific examples.
The respondent relies on the deed and statutory declarations that he signed in support of her contention that they were not in a de facto relationship, which I will refer to later in these reasons.
CROSS-EXAMINATION OF THE APPLICANT
Under cross-examination, the applicant said that the respondent did not want there to be any reference to them being in a de facto relationship on paper because she did not want to lose her financial benefits. He said she refused to be in a de facto relationship with him on paper only but in real life they were together. He said he did it to make her happy and to look after her. In his affidavit the applicant simply said that the respondent was in receipt of Centrelink benefits when they met. I do not accept his evidence in this regard. There are significant difficulties with the credibility of the applicant and the reliability of his evidence. It is convenient for him to urge the Court not to place weight on any written documents. The evidence he provides in his trial affidavit is limited and superficial.
The respondent put to the applicant that they only saw each other every few weeks early in the relationship. The applicant said they saw each other most days. He did agree that the respondent said to him, “Let’s take it one day at a time” but said that her actions were different.
As the respondent started to ask the applicant a question about things he has written he interjected and was keen to say that whatever he wrote did not matter. He said this before the respondent had a chance to put a specific document to him. He was cross-examined about a text exchange that appears at page 310 of the court book where the applicant wrote, “I understand we are not a couple but I want to be your best friend. How can I not talk to you, you have been the best thing that has ever happened to me and I fucked it.” The applicant acknowledged writing the messages but said that at the time the respondent was manipulating him and he was under duress. He said, “My brain was phased. There were was a lot of things I didn’t mean; basically everything.” The applicant said he could not remember when he sent those messages, the respondent says he sent them in 2017. The applicant does not give any explanation as to how he was being manipulated by her.
The applicant conceded that he did refer to the respondent’s son being a waste of space. He was studying a postgraduate degree at the time and acknowledged that he did say something like he was a waste of space and was wasting his life studying. The applicant conceded that the respondent told him that she could not let him be around her children and that he would have to leave the property, but says the respondent said it the wrong way and that it was their property. This is unconvincing.
When cross-examined, the applicant explained that he paid the respondent $20,000 in cash for stamp duty for the property and says he got that money from his father. He refers to this at paragraph 39(b) his trial affidavit. He conceded that the respondent otherwise financed the purchase of the property.
On 13 February 2008, the parties signed a deed, which first appears at page 197 of the court book. As the deed is only four paragraphs I will set out those paragraphs in full.
1.The parties have agreed to purchase the property situate and known as B Street, Suburb C and being he [sic] land more particularly described in Certificate of Title Volume … Folio … (the property) as joint proprietors but always acknowledging that the actual owner of the property is the owner and the guarantor become registered proprietor only as a guarantor to facilitate the acquisition of the property by the proprietor for her own use and benefit only with the guarantor seeking no interest in the property at all.
2.Mr Carras acknowledges that the deposit monies have been paid by Ms Arvanitis only and that he has made no contribution to the deposit monies or any other monies paid up to date of settlement and his registration as joint proprietor of the property does not and will not give him any interest in the property.
3.The parties acknowledge that each of the parties will jointly repay the loan on a 50/50 basis. The guarantor’s share of the repayment shall be deemed to be and is his contribution to his occupancy fee irrespective of whether he resides in the property or not.
4.It is acknowledged that should in the future the parties wish to dispose of the property or transfer the property to one of the other of them then the share that the guarantor is to be entitled to will be calculated on the basis that the owner shall be entitled to the whole of the amount received or receivable from the proceeds of the sale less an amount that shall be paid or allowed to the guarantor in respect of any monies that the guarantor actually paid in respect of the (reduction of the corpus of the mortgage) [handwritten insert] mortgage repayment or other monies acknowledged as paid in respect of the property.
The respondent is described in the deed as the owner and the applicant is described as the guarantor. The deed refers to the respondent and applicant having different residential addresses. The deed was witnessed by a Justice of the Peace and is dated 13 February 2008. There is no reference to either party receiving legal advice. The deed does not refer to any governing legislation. The deed is not a financial agreement as defined in the Family Law Act. The deed does not refer to the parties being in a relationship. Rather, it appears to be a document prepared ancillary to the parties taking out the mortgage.
The applicant’s assertion that he paid $20,000 towards the purchase of the property is convenient as it neatly fits with the parties making contributions to the purchase price in the proportions reflected on the property title. I am not satisfied that the applicant did pay the stamp duty for the purchase as there is no reference to this in the deed. Furthermore the deed contemplated the applicant making payments in the future. It is apparent that the deed reflects a situation where the respondent could not have obtained the mortgage to purchase the B Street, Suburb C property with the applicant being a co-mortgager. The deed which was signed at the time the parties were purchasing the property is an arrangement where the respondent needed the applicant to co-sign the loan.
The respondent annexed the deed and the statutory declarations the applicant signed in 2019 to her affidavit she filed on 20 November 2019. Despite this the applicant does not address the deed specifically in his trial affidavit, instead he says at paragraph 42:
Over the years Ms Arvanitis has taken me to see a number of solicitors and conveyancers and during those meetings I have signed a number of documents that relate to our interests in the B Street, Suburb C property. I cannot recall the precise nature of the documents I have signed, but to the best of my recollection one of them purported to be a Financial Agreement. To the best of my recollections others were Statutory Declarations and Deeds. I did not understand the effect of those documents at the time of signing them or receive any independent legal advice regarding their meaning.
The respondent cross-examined the applicant about their attendance on the solicitor’s office who prepared the deed. The applicant recalls signing the document and said all he understood was that he was signing the 20% of the property and says he must have missed the rest of what the document said. The deed reflects the fact that at the time the respondent could not have taken out a large enough mortgage on her own to be able to buy the property. The terms of the deed is also more consistent with the respondent’s evidence reflecting the fact that they were not in a de facto relationship.
The applicant agreed that at the time he told the respondent that once he was through with his settlement with his ex-wife and got back on his feet, he would make payments to the mortgage.
The respondent asked the applicant about the request she made from him for money for the mortgage. He conceded that he did say “fuck the rent. Life is too short. I want to go overseas.” He insisted that he only said that in one year, not every year.
The applicant claims that he gave the respondent cash on a weekly basis from 2008 onwards towards the mortgage. His evidence of his financial circumstances is extremely limited. The respondent was working casually at the time. He does not provide any detail as to the income he earned as a driver or the amounts he earnt from his casual work on the weekends. She claims he would earn $200 or $300 a week from that period. The respondent suggested to the applicant that his tax returns do not refer to this income and the applicant said that it was under the threshold.
The respondent conceded that he signed a statutory declaration dated 17 February 2019, which appears at page 198 of the court book, where he states that he releases himself from any ownership and profit of the B Street, Suburb C property and any of the loan repayments that he has not made since August 2018 when he took over the mortgage repayments. The applicant claims he wrote that under duress. He says the respondent was very violent towards him and he needed to get out of house and claims that the respondent grabbed his phone and hit him on the head. He said he was frightened and just wanted to get out of the house and says the respondent was threatening to break his stuff.
The applicant attended the police station again on 21 February 2019 and signed another statutory declaration. It appears at page 200 of the court book. It refers to the property in Greece and the motor vehicle. The second statutory declaration is strangely worded. It says:
“the house title and profit from sale and any debts owning [sic] in the [sic] Greece you are releasing yourself from is situated Suburb E, City F. and the vehicle you release the title and profit (terios) from any sale and any owing debts. thank you.”
The applicant claims that the respondent insisted that he go back to the police station, and correct the statutory declaration. He claims that the respondent told him what to say. It is possible that he has literally written what the respondent told him to given the way it is expressed in the second voice.
I do not place great weight on the statutory declarations. They do nothing more than indicate an intention by the applicant at a volatile time between the parties.
The respondent cross-examined the applicant about the last time he moved out. The applicant agreed they had a big fight on 17 February 2019. He came home at about 4AM. He agreed that she came to her room, but says it was not by force. However, he then conceded that he took a butter knife to open the door to her bedroom because he wanted to talk to her. The applicant agreed that the respondent would lock her bedroom door. He further agreed that the respondent told him if he tried to come into her room one more time she would call the police. He conceded that he knew the door was locked and he used a knife to open the door. He said: “Yes, with a knife just to – so I can have a chat with her, yes.”
He agreed that the respondent asked him to leave but that he did not because he wanted to talk to her. He further agreed that the next morning the respondent told him to stop touching her and that if he kept doing it she would call the police. He then said it did not happen that way. He said he was trying to be intimate with her as they had been the day before and she started to get upset and arguing about the weekend work and the house. He said he just wanted to get out of the house and get his stuff and so he was going to do anything and said “It doesn’t matter what I wrote, what I said.” He claims he was just saying and signing things to keep her happy and that he regrets everything he wrote. That is far too simplistic. I think it is more likely that the statements he made from time to time are reflective of the volatile and uncertain nature of the parties’ relationship.
The applicant then said that on the Sunday night when he went to her bedroom with a butter knife, the respondent was waiting up for him. He says they spoke for a bit and went to bed and then he got up and opened the door. He said it was a long time ago and that the details were fuzzy. The applicant’s evidence was most unconvincing and changed as he gave evidence.
The applicant agreed that he sent a message to the respondent asking if she had put money on the mortgage and that he would be starting next week. This was in 2018 and he says he sent that message because the respondent had a lot of his money in her account and she stopped paying the mortgage.
The applicant says that the first time he made a payment towards the mortgage via bank transfer was in 2018. Prior to that he would give cash. He said he would give her about $250 a week for half the mortgage. He does not provide any detail of this in his affidavit.
He was cross-examined about a text exchange that appears at page 201 of the court book, where he says “I understand you done a lot and paid for everything you see the difference from [now] on.” The applicant agreed that he wrote that but said he did not mean it. He agreed that the respondent was in Greece at the time, and says that she was about to break everything in Greece if she did not get her own way and so whilst he wrote that in order to protect his belongings, he did not mean it. He said a lot of the SMS messages were true and a lot were to keep her happy and stop the fighting. He said he could not recall what he was referring to when he talked about there being a difference from now on. Again, he fails to particularise this evidence in his affidavit and only says at paragraphs 43 and 44:
I signed those things because Ms Arvanitis was blackmailing me. She threatened to report me to the tax office for not declaring my income from my casual work. I did my tax returns myself online and I thought I would get in big trouble.
When I signed a statutory declaration at the Police Station, I did so because I needed to use Ms Arvanitis’s car. Ms Arvanitis had a car registered in her name which I drove. I had a Motor Vehicle 1 registered in my name which Ms Arvanitis drove. The Motor Vehicle 2 was the larger of the two cars and allowed me to transport my work equipment to gigs.

The respondent cross-examined the applicant about an extract from a medical report of his which was prepared as part of his Work Cover claim, which is exhibit 1. In that document he refers to going and staying with his parents, travelling with them to Greece and staying with them in Greece for months at a time. The applicant claims he said that because the respondent told him not to tell them that they were living together.
The applicant’s Counsel applied for two section 128 certificates pursuant to the Evidence Act 1995 (Cth) during the course of the respondent’s cross examination of him. The first was with respect to questions he was asked concerning his Centrelink documents, when the applicant was in receipt of the Newstart allowance. He declared his assets as being household and personal effects worth $1,000 and the motor vehicle worth $20,000, as well as $210 in the bank. He agreed that is what he put on the form, which is Exhibit 2. The respondent’s case is that this reflects the parties’ agreement that he did not have an equitable interest in the properties held in joint names.
The applicant conceded that he sent a text dated 12 September 2018 where he referred to not having any power and always asking the respondent for money and apologising for it. He denied always asking the respondent for money throughout their relationship from 2004 to 2019 and said it was from the period when he received his compensation payment and put it in her account. He believes he received his first payment of $14,000 in about 2014. He said he transferred all of his lump sum into the respondent’s account and that is why he asked her for money because she was holding his money for him.
The applicant produced a bundle of his National Australia Bank account statements for the period beginning 24 November 2018. There are several entries which show debits of amounts ranging from $200-$500 and a reference to Bank G. The mortgage is with Bank G. The respondent asked the applicant why he stopped paying the mortgage after he moved out if he considered it to be his property. He said that he did not want to and then said because he was not thinking about paying anything and then further said “three years on there are reasons why” without elaborating further.
The respondent asked the applicant about the conversation they had the day he moved out of the home where she told him that Bank G was constantly contacting her by phone and email because the mortgage was in arrears. He agreed that they had that conversation and then said that after 17 February 2019 he used the Westpac account. He could not recall how many payments he made to her after 17 February 2019 and could not explain why he started making payments to the respondent’s Westpac account and not the Bank G mortgage account.
The applicant also conceded that he did say to the respondent “why should I pay for this house. This house is your son’s, your daughter’s and your house. Why should I pay this house?” He said it was very stupid of him make those comments.
At paragraph 46 of the applicant’s trial affidavit he says on the day he left the house for the last time after the parties argued, he had approximately $20. He was cross-examined about the fact he had given evidence that he was paid the night before for a gig of about $500. He said that it must be a mistake and maybe he was referring to $20 before being paid. The applicant further said that his bank account showed that he had $1,457 on 18 February 2019.
The applicant agreed that he had a smoking habit which cost him $350 a week and said it was because of the respondent. That is a significant weekly expense.
He also agreed that he did accuse his ex-wife of forging documents with respect to their property, transferring his equity to her. He conceded that he did not take legal action against her and said he was thinking of the children. The respondent put to the applicant that he made similar accusations against his ex-wife that she made him do everything. He said he fell into the same trap. He said he has an issue with relying on other people’s advice.
In 2011 the applicant became very unwell and was hospitalised for a couple of months. The respondent visited him in hospital and provided some care to him.
In 2014 the applicant suffered a work injury. His doctor issued WorkCover certificates saying that he did not have capacity to work each month. He started working again in about March 2018. He then said that during that period he was doing some casual work on weekends. His doctor was issuing certificates saying he did not have any capacity to work. He further agreed that he was receiving payments from his insurer each week and would lodge a statement with the insurer Company H stating that he was not receiving any income. The respondent asked him if he was working or not working. He then said that he tried to work on weekends as he was not getting enough payments during week.
The respondent then asked the applicant to explain how he paid for his overseas trips to Greece during that period. The parties went to Greece at least once a year most years. There is some dispute between them as to whether they went together or alone. The applicant claims that in 2014 he received his first payment from workers compensation of $14,000 and used that to pay for Greece. This is the same sum he referred to earlier when he claimed to have withdrawn this sum and given it to the respondent in cash.
The respondent suggested to him that his bank statements shows that he was first receiving payments in 2016 and the applicant replied that he was in receipt of payments from work at that stage, and then said he would have to go back and have a look. He said he could not recall however, thought he was getting paid by the old employer J or by Company H.
He conceded that he did ask to borrow money from the respondent on a couple of occasions whilst they were in Greece. The applicant then said they helped each other out from time to time. He agreed that the respondent helped him financially from time to time.
In his trial affidavit the applicant says they first went to Greece together in 2005 for the respondent’s cousin’s wedding. They did not travel to Greece in 2006 and 2007. In 2008 they travelled to Greece and mostly spent time at each of their uncle’s homes. The respondent travelled to Greece on her own in 2009. He says that from 2010 to 2018 they went to Greece each year and stayed for 2 or 3 months. The applicant started talking about their staying at his uncle’s place in Greece because they could not afford accommodation.
The respondent cross-examined the applicant about Exhibit 4, which is the text exchange where she refers to her helping him out financially. He says that was before the compensation payments came in, and he could not afford to pay the $500 a month rental for work equipment and his car payments on the Motor Vehicle 1. The applicant recalled the text exchanges but could not recall what year it was. The applicant agreed that in the text message he acknowledged that he would not have to pay $1,500 a month because she was now making the payments.
The applicant claims that in 2012 he bought the respondent a Motor Vehicle 1 in his name. The repayments were about $900 a month. The respondent suggested to the applicant that after his wage was garnished for child support he was left with about $50 a week. The applicant said he was left with a couple of hundred dollars a week. He said that the respondent paid him cash for half the car payments. The respondent claims that she was giving him money for the Motor Vehicle 1 as he begged her to help him and said he would repay her when his parents die. The respondent says that the applicant would beg her for help and would tell her that no one else would help him. When she suggested to him that he referred to repaying her when his father received his superannuation payout after his retirement, he said that they did talk about their dreams in the future and she helped him as his partner but he did his part as well. He then conceded that he made reference to his parents passing away in the future. He strongly denied using the language the respondent claimed he used.
The applicant then denied borrowing money from the respondent and said that she assisted him here and there and that they were working as a team.
The respondent asked the applicant about the series of text messages and the applicant conceded that he sent a text message saying, “We have not been in a relationship for 10 years.” He said there was a reason why he said that and he said at page 91 of the transcript “not because to make you happy. Look, I do text things that maybe people take it the other way, but I did text that because it did not feel like that. Because we had been in a yo-yo relationship for that long.” This is of course exactly the point the respondent raises to support her contention that they were not in a de facto relationship.
The respondent asked the applicant how many times he opened the locked door of her bedroom. He said it was only on weekends when things were heated up between them and he wanted to come into her room and talk to her about it. Later in cross-examination he said he would mostly use a butter knife on Sunday mornings to come in and talk to her about what happened when they used to go out. He denied breaking in to her room, but conceded using a butter knife to unlock the safety lock. He denied forcing himself on her. The respondent alleged that one morning she woke up with bruises all down her legs and alleges that she asked him if he came into her room last night and he replied yes and said she was the best and then she asked him if they had sex. She further alleges that he replied telling her that she was playing hard to get, but that she wanted it. The applicant denied that and said the respondent sustained bruising on her legs because she was drunk and they were arguing. She was jealous and as they were driving home from the club she wanted to jump out of the car so he was grabbing her to stop her from doing that, and that this is what resulted in her bruising.
The applicant conceded that there were messages where he would complain about her not wanting to have sex with him referring to himself as being grumpy because of it.
The applicant agreed that he moved out in 2017 and stayed with his friend Ms K, but claimed it was only for a few weeks. He also conceded sending Ms K messages in the beginning of 2019, but said they were not love messages but were sisterly love messages as she is like a sister to him.
The respondent asked the applicant if he used to say to her that he would date a singer but not an entertainer. He said he did he did say that to her and said it was at a time when they had broken up and he wanted to get back together. He said it was around the time he was in hospital for his gallbladder. He agreed that the respondent would say she never wanted to be in a relationship with an entertainer and that was not her kind of life. He said that they were just words that she would say. A common refrain of the applicant is that weight should not be placed on what either parties says in various documents. This is because they do not suit him.
The respondent cross-examined the applicant about part of a medical report from October 2014. The respondent says the applicant would tell him not to write anywhere that they were in a relationship. Exhibit 5 is a page from that medical report where he refers to having problems with contact with his children, relationship difficulties, and that more recently he had to move home with his parents.
The applicant sought and was granted a section 128 certificate pursuant to the Evidence Act 1995 (Cth) with respect to allegations that he sexually assaulted the respondent. Exhibit 6 is a text from the applicant to the respondent dated 30 April 2018 where he says “you should be happy that I try to rape you all the time.” He conceded that he may have written, “I am going crazy without sex. I am a man. No wonder I try to rape you.” He said he could not remember why he wrote that and he did not mean to say that, but perhaps he meant it in a sarcastic way because he wanted to be with her.
The respondent agreed that in 2009 they needed a break from each other as they were arguing too much and that the respondent went to Greece for about two months.
The respondent put to the applicant that she would tell him that she did not want to have sex with him and did not want to be in a relationship with him. He denied that she said that to him. He said she only said that she did not want to have sex with him when they were arguing.
The applicant conceded when cross-examined that he made an error at paragraph 35 of the affidavit he swore on 12 July 2019 where he states that he transferred $192,842 into the Bank G account on 26 April 2017. He said that was a mistake and should have said he transferred it to her account. He said he must have missed it when reading his affidavit and said he was not very good at reading things. What became apparent is that the applicant would label transfers to the respondent’s account as being for the mortgage. The applicant said that they agreed that some of the funds would be used to pay for renovations for the house in Greece.
The applicant says they each paid approximately AUD$30,000 for the purchase of the house in Greece. He agreed again that he did say “Fuck the mortgage… Life is too short.” He claims he only said this once before he received the payout. He says they also bought a car. He says they paid for everything half each. He claims that he transferred funds to the respondent because many of the people working on the house wanted cash.
The applicant says that in 2013 after tax he had about $300 from his full-time job and about $400 from casual work. When the respondent suggested to the applicant that he had not declared that anywhere (presumably referring to his tax returns and Centrelink). He replied that he did not have to as he was under the threshold. That does not make any sense given the types of figures he claims he was earning from casual work. He then claimed that he paid her $250 a week in cash from his casual work money and would also buy food. When the respondent put to him that at the time he was in arrears of approximately $30,000 in child support he said that it was another situation with his wife and had nothing to do with this matter.
In re-examination the applicant was taken to several of his Bank L bank account statements. He received a credit as a result of drawing down on his Super Fund M on 24 February 2015 in the sum of $14,414. He withdrew $14,400 next day. He says he gave that money to the respondent to pay for various household expenses, including mortgage, bills, groceries and tickets for flights to Greece. He received a further payment from his superannuation on 2 June 2015 in the sum of $85,767.91. After receiving that second lump sum, there are several transfers over the next several days to the respondent in amounts of $5,000. Again, the applicant said that those were for all their expenses, whether it be the mortgage renovations in Greece or bills for the household. He claims he let the respondent “run the show” with respect to the finances. He then said that he was pressured and manipulated by her.
The statements also show transfers he made to the respondent of various sums on various dates, including 1 June 2015 in the sum of $1802, to June in the sum of $816 and 11 June sum of $5000 and says he transferred these sums to her to her to put towards the mortgage. He was then asked about smaller transfers of $200 he made after 17 February 2019 up to 4 April 2019 and says he made those contributions as they were still discussing things but did not make any further payments after 4 April 2019.
His statements also show him making some BPay statements to power and gas, and some payments directly to the Bank G mortgage account.
THE APPLICANT’S SUPPORTING WITNESSES
The applicant called five witnesses to provide evidence on his case. The witnesses were, Ms N, Mr O, Mr P, Mr Q and Mr R.
Ms N
Ms N is the applicant’s godmother. She has known him since he was born and she has been involved with many parts of his life. Ms N met the respondent in 2000 at a Greek store. They became friends. Their children attended the same school and they socialised together on the weekends.
In her affidavit, Ms N recalls the night that the applicant and respondent met. She says they seemed to “hit it off” and exchanged phone numbers. Ms N says they went out as a group on a few more occasions and says that after the applicant and respondent became a couple, she did not see them as often but that they appeared to be in a relationship. Ms N recalls other instances where the applicant referred to the respondent as his partner and also where they attended events such as funerals together. Ms N never visited the parties when they bought the B Street, Suburb C property, explaining that the respondent was a private person and that she never used to visit her house in the past. Ms N said the applicant told her he and the respondent bought a place together in Suburb E, City F, Greece. Ms N learned about the parties’ separation in March 2019.
When cross-examined Ms N said the last time she saw the respondent was at Mr P’s wedding over a decade ago. She said there was a big family dispute and she then did not see the applicant until 2018 or 2019 at a friend’s 30^th birthday.
She said she knew they were in in a de facto relationship because at Mr P’s wedding both told her they bought a house and moved in together. Apart from seeing the respondent at a couple of the applicant’s casual gigs she did not see them again. She then said that she knew that they were still together as his family told her.
Ms N said that she assumed that the applicant and respondent were in a de facto relationship as they were living together and she classes that as a de facto relationship. In re-examination she said that when she saw the applicant and respondent together they were holding hands and appeared to be a happy couple.
Ms N has had little to do with the applicant and respondent for many years. She is relying on hearsay evidence from unnamed family members. Given she has had little involvement with them over the years her evidence does not assist establishing that the parties were in a de facto relationship. At best her evidence relates to the period between 2008-2009.
Mr O
Mr O met the applicant approximately 5 years ago when he was in a relationship with the respondent. In his affidavit, he does not recall exactly where he met the respondent however he believes it was at a nightclub.
Mr O recalls the applicant introducing the respondent by her name “Ms Arvanitis” but states that he knew she was his partner based on the way they behaved with each other. Mr O saw the applicant and respondent being affectionate and that they appeared to be in a relationship. He says that when the applicant discussed his relationship with the respondent, the respondent was often very demanding, aggressive and controlling and that she would not let him have his children at their house. Mr O was aware the parties owned property in Greece and B Street, Suburb C, however he never visited the B Street, Suburb C property because the applicant told him that the respondent did not like his friends coming to the house. Mr O recalls the applicant saying that the parties were renovating the property in Greece and that they had dogs together.
When cross-examined he said the first time they met at the nightclub they simply exchanged greetings. He says the second interaction was when she and the applicant were on holidays in Greece and the applicant made a video call to him through messenger and discussed the parties’ plans to go to the beach. He could not recall any other specifics of that conversation, but denied the respondent’s suggestion that it did not take place and he said he was clear in his recollection of seeing her sitting next to the applicant in the car. Mr O said there were a couple of other occasions where he saw them at nightclub or a concert. He said it was clear to him that they were there as a couple and so he would not ask the applicant to join him for a drink. He says he remembers the first time he met the respondent because he had heard the applicant speaking so much about her and said it was a few years ago. He could not be more precise about time.

Mr O knows the applicant through his work and says that he got into casual work the last five or six years. He has never attended their home. He referred to the applicant telling him that the respondent did not want his friends at the home and that the respondent was demanding, aggressive, controlling and violent at times, particularly towards the end of the relationship. The applicant told him that the respondent was jealous of his work and is very insecure about who he was with and who was working with. The applicant also complained about the respondent controlling the money. He said he had no knowledge of their sleeping in separate bedrooms and her locking her bedroom door. He confirmed that he only heard information from the applicant.
Mr O also said that they never spoke about their sexual lives. The applicant did tell him that the respondent hit him over the head with a phone and he had to leave the house to get away from her violence. He said that the applicant confided in him that he had moved out of the property on several occasions. He recalled the applicant telling him about trips to Greece where the respondent often went on her own but he would join her after he completed his engagements, a few weeks later.
I did not have the impression that Mr O is particularly close to the parties. His evidence does not assist establishing that the parties were in a de facto relationship. Further, most of his evidence comes from what the applicant has told him, rather than witnessing their relationship first-hand.
Mr P
Mr P is the applicant’s brother. The applicant told Mr P about his relationship with the respondent in 2004. Mr P recalls the applicant saying that he met the respondent through his godmother, Ms N and that they were in an intimate relationship and that he could see a future with her. Mr P recalls the applicant introducing the respondent as his girlfriend.
Mr P was married in 2008 and the respondent attended his wedding with the applicant and his sons. Mr P says that the respondent is in the wedding video. Mr P recalls that each Christmas, the applicant said he was spending the rest of Christmas Day with the respondent’s family. Mr P addressed invitations to family functions such as his 25^th birthday and his children’s christenings to both of them. Mr P says they attended those functions together as a couple. Mr P visited the parties at the B Street, Suburb C property. He says they were living there together with the respondent’s two children. Mr P says the parties would often visit Greece during the Australian winter and that they bought a house in Greece together. Mr P said that the applicant informed him the parties separated in early 2019.
The applicant told Mr P that the relationship ended because the respondent was jealous, abusive and controlling over how he spent his money.
The respondent cross-examined Mr P . The last time he saw the respondent was in 2017 at the christening/birthday celebration for his son. He recalls her attending his twin girls’ christening in 2013. He recalls the respondent attending their home one Christmas and meeting the twins in hospital. The parties attended his wedding.
The respondent asked how many times he saw her over the years. It was clear that he did not see the respondent regularly over the years. He recalls that the parties went out with him as a couple once in 2005, and a few other times in the late 2000s.
He says that the respondent would refer to the applicant as “her man” he recalls her attending the hospital every day when the applicant was in hospital with swine flu in a coma. He referred to the respondent having conflict with their mother.
Mr P recalled the respondent going to stay at Ms K’s house in 2017. He said his brother told him that he needed respite from the respondent’s abuse and that both parties were jealous and the relationship was toxic.
Significantly he recalled that the applicant was financially struggling to pay child support, the mortgage and other bills. He said that the applicant said a lot of things about their relationship after the relationship ended in 2019. Mr P said the applicant told him that he did not want to buy the house in Greece but felt pressured by the respondent and felt that the respondent was financially controlling and he felt abused and disempowered.
He recalled they went to Greece together most years.
He claimed that he did not know that they slept in separate bedrooms.
Mr P’s evidence supports the applicant’s contention that the parties were in a relationship from 2004 to 2019. However his evidence does not go so far as to support their being in a de facto relationship as opposed to a girlfriend and boyfriend relationship, given his infrequent interactions with the respondent.
Mr Q
Mr Q is a friend of the applicant and has known him for approximately 15 years. They met through mutual friends. Mr Q met the respondent at an event in 2005. Mr Q recalls the applicant introducing the respondent to him as “his missus” and he observed them holding hands, embracing each other and kissing each other. He observed them arriving at events and leaving together.
Mr Q says that he was aware the parties owned properties together. He never visited the parties in their B Street, Suburb C property but was aware they were living together at the property. Mr Q recalls the applicant telling him about going “half-half” with the respondent to purchase a property in Greece. Mr Q also says the applicant bought the respondent a car in 2012. Mr Q observed the applicant and respondent often texting and calling each other when they went out together. He recalls a conversation where he asked the applicant about whether they were going to get married and he said that they pretty much were married, except for the wedding ceremony. Mr Q said that he recalls the applicant talking about his relationship with the respondent and that she would become jealous.
Mr Q said that he learned the relationship ended when the respondent had been hitting the applicant and that he left because he had enough.
It was clear from the cross examination that he did not know the respondent well and that on occasion he saw her with the applicant at Greek functions. He accepted the respondent’s proposition that they met in around 2013, which was the function that he recalled being a Greek dinner dance function in Suburb S. He never met with her individually.
Mr Q said he believed that they were in a de facto relationship because they were as he understood it living together and because the applicant was constantly on the phone to her and would text her when he was employing the applicant. He says he sometimes saw her name come up on the applicant’s phone screen.
He saw the applicant about once a month, employing him as an entertainer. He agreed that they did not socialise or interact as couples and he and his wife never went to their house and she and the applicant never went to their house. He said that he recalled the applicant telling him that he “bought … my missus a car” and he believed that was a Motor Vehicle 1.
During the cross examination, the respondent made very serious allegations that the applicant was blackmailing the witness and threatening to disclose text messages that he would show his wife the pornography that they watch. The respondent was unable to produce text messages that indicated any threats. It is also not something that she put to the applicant during cross-examination. When she first raised the issue she referred to her position in the Greek community and that it had come to her attention that he and the applicant were exchanging message threads about pornography. She then said that she was aware that the applicant was threatening the witness that if he did not testify in his favour then he would show those messages to the witness’s wife. These are extremely serious allegations and quite properly, the applicant’s Counsel objected. The respondent claimed that she had screenshots to support her contention and the matter was stood down briefly for her to produce them to Counsel. The texts did not refer to any threats and the applicant denied suggesting that he had evidence of the threats.
He admitted that the last time he saw the applicant and respondent was about four or five years ago in 2016. His evidence does not assist the applicant’s case in circumstances where it is clear that he relies on a lot of hearsay from the applicant and not what his own observations. Given the applicant’s unreliability of a witness, this evidence does not advance his case.
Mr R
Mr R met the applicant approximately 8-10 years ago through professional networks. He says he first met the respondent when she came into one of his stores with the applicant but does not specify a date in his affidavit.
Mr R says that at this meeting, he observed the parties acting as if they were in a romantic relationship and that they appeared to be husband and wife. Mr R saw the parties dancing closely together and be affectionate towards each other when they went to nightclubs as a group. He says that many people they met with at those nightclubs would greet and acknowledge the respondent as the applicant’s partner. Mr R said that the applicant would express his frustrations about his relationship with the respondent and that she was controlling and would not allow him to take phone calls from his friends and family at home. Mr R also said in his affidavit that in around 2016, the applicant said the respondent would not let his children or friends in the house and when he raised concerns about this, the applicant said to leave it, which he believes was because he was afraid of losing her. Mr R says that with respect to the applicant’s financial matters, he told Mr R that the respondent did not let anyone know about their financial relationship and that he paid all the bills when they lived together in B Street, Suburb C. Further, he recalls that the applicant told him all his money went to the respondent or her children. Mr R was of the view that the respondent acted in a way that meant she benefitted financially from the relationship. He said that the applicant was made to sign a document by the respondent that says they do not live together but that Mr R was confused as he was aware they had been living together for about 8 years at the time.
He learned the parties separated in February 2019 and that the applicant seemed upset. Mr R said the applicant left the B Street, Suburb C property but cannot recall where he went to live after separation.
Mr R says the parties came into his store on several occasions and upgraded their mobiles phone services with him. The last time he operated one of his stores was in Suburb D in 2016. There was a period of time when he would see the applicant frequently after his accident as he would hang out in the shop. He said they were friends. He has never been inside her house but had dropped the applicant off outside after work. This was prior to 2016.
He was cross-examined about the comment in his affidavit that the applicant would discuss personal issues and his relationship with the respondent. Mr R said the applicant would express his frustration about his relationship and complained that the respondent was controlling and would not allow him to take calls from his friends and family at home. He said that those topics of conversation came up from the period 2017 onwards. He can recall the applicant telling him that he left the home for about 10 days in 2017 after a disagreement. He is unsure of the timeframes and says some months later he left the home again.
Mr R also claimed that between 2014 and 2016 the applicant had told him that they were discussing getting engaged but that by 2017 it become clear that it been a misunderstanding.
Mr R also said in his affidavit that the applicant told him that the respondent made them sign documents saying they will not living together and that he expressed concerns about that to the applicant at the time.
He said that the applicant talked about his finances with him and that before 2017. He would say how great everything was going. However, from 2017 he would say things are not going well and that he was giving the respondent all his money.
The applicant worked for him doing some casual work and also worked in one of his stores after he was injured. Mr R then said that he was on the books for about a month but worked in store much longer than that and gave him cash. He said he tried working full-time for about a month but could not do it. He claims that when he was working from full-time he did not want any money and did not pay him. Then he claimed he had a pay officer who would pay him hundred dollars here and there.
Again, much of his evidence is based on notions and examples the applicant has told him.
Given the fact that the applicant’s evidence is unreliable and much of the evidence of his supporting witnesses relied on what he has told them, they do not advance his case that the parties were in a de facto relationship.
CROSS-EXAMINATION OF THE RESPONDENT
The respondent was very defensive and argumentative with counsel when she was being cross-examined. She was very concerned not to admit any sort of relationship with the applicant and said that the applicant would let himself in and break locks into her house and break in to her room. She claims that she and her neighbours have surveillance cameras and that the only time he would show up would be on weekends when he was drunk. There is a significant difference between breaking into her room and breaking into the property. The respondent then described him as an uninvited tenant that used to break in on weekends when he felt like it or when he was drunk and referred to him trespassing. She said he was a freeloader and that is why she kicked him out several times. In this regard, the respondent’s evidence is not consistent. I find she has exaggerated her evidence in this regard as it is simply not credible that he would break into the house and trespass over a number of years. The respondent referred to there being surveillance cameras and police reports. She does not provide any evidence of this. Whilst she cross-examined the applicant about breaking into her bedroom and he made concessions in that regard, she did not put to him that he would break into the houses in both Australia and Greece. That is quite a different proposition. She conceded that at some point throughout the years they were friends and as at times they were friends with benefits which she says the applicant took advantage of but says he insisted on telling everybody they were in a relationship. The respondent then repeated that they were never in a relationship.
At several points during her cross-examination, the respondent referred to the applicant as being a tenant and an uninvited tenant.
She denied that he moved into her rental property at Suburb D. The respondent insisted that she had never been in any sort of relationship with the applicant. She was given several opportunities during cross-examination to clarify her evidence in this regard. When counsel suggested to the respondent that she must have had some sort of relationship with the applicant in order to have known him sufficiently to sign a contract to purchase land with him, she said it was not an intimate relationship and then said the following:
We had a friend relationship. I’ve stated that on many occasions, and he begged me to allow him to live in my property as a tenant, and the reason he put his name on that contract, sir, is so he can move into that property, because if that wasn’t – if that wasn’t going to happen, I wasn’t going to be able to buy a four-bedroom property with regard to getting a loan big enough to borrow – without his name – without his name and his contract that he signed, I wouldn’t have been able to get a four-bedroom property. I would have only gotten a property for myself and the kids, and he was not going to have a – anywhere to stay, and the agreement, as the contract say, was that in the first five years – your Honour, I need to say this in the best way possible, so I’m sorry I’m going on. In the first five years, he would – we would both pay just the interest only off the property – each some payments, and from the five years onwards, we would both contribute and pay equally off the actual – like all of the corpus, I think, your Honour, off the capital of the property. And if that hadn’t happened, then he had no interest to that property, and that’s – that was the agreement.
The reason the applicant’s name was on the property was because she would not have been able to borrow as big a loan for a four bedroom house without his name on the loan. The respondent says that is when she started locking her the door to her room. She denied ever having sexual relations with him on a daily basis as he alleged. In answer to this line of questioning, the respondent said that she never initiated sex with the applicant. Most of the time it was after she had consumed alcohol, however she then said, “every second weekend there were incidents because I trusted him. I would not go with other men and there were needs.” The reference to every second weekend is presumably linked to her earlier response, where she said that they would occasionally be intimate in the property when her children were with their father every second weekend.
She agreed, at times they had a sexual relationship but says it was on and off. She said over the last few years the only time they had sex was when he forced himself on her.
The respondent says that in 2011, when the applicant was in hospital for a long time and then in a wheelchair, she stopped seeing him as a man, but was helping him out occasionally and says he begged her to nurse him. This was the period that the applicant’s brother referred to seeing the respondent visiting the applicant in hospital regularly. She says she stopped being attracted to him at that time. She was cross-examined about a series of photographs annexed to the applicant’s affidavit. She identified some of the photos being from 2005 and another from 2012.
The cross-examination of the respondent was very difficult due to the respondent’s defensiveness and argumentative nature of her answers. She had to be warned on several occasions to listen to what she was being asked and to answer that question.
Initially she denied that the respondent ever paid her cash. The respondent then said that occasionally he would leave a couple of hundred dollars on the table but she would not touch it and he would take it back the following day. She said these were his attempts to repay loans he took from her and her family. She denied him giving her $14,400 in cash. With respect to the transfers into her bank accounts she said those were the repayments of loans that he borrowed money from herself and her family for medical and legal fees related to his compensation. He said he would mark those as being an example “medical owing” or “in arrears”. She says he borrowed over $150,000 with respect to money that was deposited into her account. She said although he labelled as mortgage it was not and she claimed that he took money back by using her credit cards. She did not put that to him when cross-examining him and has not produced any evidence in support of those allegations.
The applicant’s Counsel suggested that they would at times do the shopping together. The respondent denied this suggestion and said that they labelled their food separately and that her children’s father would get boxes of food delivered to their home each week. Again, she did not provide any evidence with respect to this and did not raise it previously.
She denied the applicant’s assertion that he contributed $20,000 towards stamp duty of the purchase of the property and said that he is spent that money in Greece.
The respondent does not know the current amount of the mortgage. The mortgage has not been paid for the last couple of years. Bank G commenced court proceedings, but those proceedings were there caused due to a complaint. The respondent says AFTCA put a complaint in after she spoke to them about Bank G refusing her loan repayment plans and her complaints about irresponsible lending based on the applicant not having any borrowing capacity.

She was cross-examined about the deed they entered into at the time of the purchase. She says her lawyers at the time also employed a conveyancer with that firm and the lawyers instructed her to prepare the financial agreement to protect herself and the children from the applicant. She said she was told that the applicant to list his name on the title for a minimum of a 20% share in order for her to obtain the loan. She denied that they held the title in the proportions of their contributions being $80,000 from the respondent and $20,000 from the applicant. She says the agreement that they both pay the mortgage is for the duration of 5 years interest only and after they would increase their contributions if they could then sell the property. She said this is exactly as is provided for in the agreement. She says he is not entitled to any proceeds of sale as he did not comply with the conditions of the financial agreement and has since then signed the statutory declarations of their waiving an interest in the property and the debt.
She said the reference to corpus in the agreement is reference to him not being entitled to anything unless he paid off something from the capital.
On more than one occasion during her cross-examination she said she would not agree with any proposition put by the applicant’s counsel.
She was cross-examined about the terms of the deed. The applicant’s counsel suggested to the respondent with respect to reference of her having a 4/5 interest and the applicant having a 1/5 interest, which is set out in the transcript as follows:
Mr Laidlaw: So there’s nothing in the deed, is there, that talks about you taking four-fifths of an interest and Mr Carras taking one-fifths of an interest, is there?
Ms Arvanitis: It talks about other things in that deed as well. And ‑ ‑ ‑
Mr Laidlaw: So the answer is, yes, you agree there’s nothing in there about that?
Ms Arvanitis: What’s in there, because you’re taking it out of context and I’m not going to be trapped into saying things that are not true, is that the way it was explained to me and to your client is that, providing he permits to actually contributing to – not the actual interest only payments but to the principal of the loan, then he will then, one day, after five years of interest only payments, be – he would have earned an interest in that property providing he had contributed, which he has not, to the day, paid anything towards the principal. I’ve had to capitalise on that mortgage three different times because of your client.
Once again, rather than simply answering the question she complained about counsel taking it out of context and that she was trapped by him. She further complained that she had to recapitalise mortgage on three different occasions because of the applicant. Her whole approach in this regard is utterly unhelpful. She had had numerous opportunities to put on material including that of any witnesses that she wished and had the opportunity to obtain legal advice.
Counsel suggested to the respondent that there was never a separate tenancy agreement. She denied this and said there was such document. If there was, I would expect her to produce that document and other documents she claims she has in her possession. She says this assisted her with a court case that won her some money to purchase the property and she says they insisted that they prepare a financial agreement to protect her and the children with respect to the purchase of the property. She then claimed that they also advised the applicant and his lawyers at that time and advised him for two or three hours that he rang people and obtained his own legal advice and then returned and signed the agreement.
The respondent denied telling the applicant what to write in the statutory declaration and suggested that if she had, she would not have included references to him releasing himself from the debts. The applicant’s counsel suggested that she would because above all else she has been keen to protect the house as being hers and that is why she told the applicant to go and write that statutory declaration. She responded and said that the house has always been hers and that the applicant has always known and says that he confessed that he deceived everyone and further said the transcript would show that.
She said that the applicant only made a couple of small payments to the mortgage in 2018, which did not go towards the capital because she said to him that if he did not make payments towards the mortgage and the roof over his head should stop paying for ever.
The Bank G statements show payments by the applicant between 19 September 2018 and 17 February 2019 totalling $8,150.
When the applicant’s Counsel asked the respondent about the aide memoire he prepared based on the bank statements she said that the evidence in the court book is clear and that the applicant has acknowledged in his email that he took her ATM cards without her knowledge, withdrawing up to €5000 a day for months in Greece until she reported it to the bank and that he did the same to her Commonwealth card and her Westpac card. The applicant does not address this in his affidavit. The respondent does not address this in the body of her affidavits either. The only reference to this appears in an email exchange at pages 285-6 of the court book
285. What bank statements mate those withdraws where to renovate our home you idiot I got
286. On Wed 13 July 2019 at 10:44 pm, Ms Arvanitis wrote:
I have got every GREEK BANK CAMERA FOOTAGE VIDEO of you using my BANK ATM cards and removing a minimum of up to FIVE THOUSAND DOLLARS A DAY since at least 2016 Nd I have print outs of your photos from the banks and the videos show u quickly shoving the euro notes in your bag and wallet u scum bag so don’t threaten meee.. u are fried beyond return YOU INSIST on contacting me..mmmm ok..
This falls well short of the applicant admitting to stealing funds from her cards. It is unclear who sent the email on page 285 of the court book or at what time it was sent. It is also unclear whether it is a part of the same email chain as the email on page 286 of the court book. Although, this email shows the date and person who sent the email, it is not clear who was the recipient.
She did not squarely put this allegation to his in cross-examination. Rather the following exchange took place at page 134-5 of the transcript.
Ms Arvanitis: And the big wall to cover almost an acre worth or property; how much did that cost you—us, your share?
Mr Carras: I think he charge us another €3000 or two and a half, I think it was.
Ms Arvanitis: It was €5000.
Mr Carras: 5000?‑‑‑Well, we went halvies on that, two and half. So 5000.
Ms Arvanitis: And where did that money come from?
Mr Carras: From the account that I transferred in your account.
Ms Arvanitis: That I was transferring to the Western Union account, because that was – was it that .....?
Mr Carras: No, no.
Ms Arvanitis: The wall?
Mr Carras: No, we were – you were transferring – I transferred you the money and then because a lot of them wanted cash, I was – you were transferring back some amounts into the accounts so I could take them all out of the ATM and pay different builders.
Ms Arvanitis: Thank you, Mr Carras. So you – it was about, what, you paid $5000 for that wall?
Mr Carras: Roughly, if we – yes. Roughly, yes.
The applicant’s Counsel put to the respondent that the bank statements identify the respondent making payments into her account totalling $342,949.46. She said she has not counted but that she has put in way beyond that. She said what the applicant has stolen from her and what he owes her is far greater than that.
The bank statements which are in evidence do not support her contentions. The respondent’s Westpac bank statements show multiple withdrawals of cash in Greece of about $900 each time. It is not possible to tell who made these withdrawals.
The only Bank G mortgage statements in evidence range from July 2018 to June 2019. Those statements show deposits labelled as being from the applicant totalling $8,150. There is one deposit from the respondent on 24 July 2019 of $1,300. Exhibit 9 is a bundle of Westpac eSaver statements in the respondent’s name from 12 December 2014 to 13 December 2019. Those statements show deposits made by the applicant to that account totalling $342,949.46. Many of the deposits are from the applicant’s Bank L account. Some of those are labelled as mortgage payments. The respondent was keen to emphasise that these were not payments into the mortgage account. However that is not what significant. Rather it goes to the issue of financial interdependence. In some instances several payments ranging from $1000-$5000 were made on the same day. The single most significant deposit from the applicant was the sum of $192,842.46 deposited on 1 May 2017. The deposits were not consistent rather there were significant deposits made close together and then periods where there were no deposits from the applicant. There were also several deposits by the respondent which were labelled medical. Other deposits made by the respondent were labelled mortgage owing and medical loan owing and medical miscellaneous arrears.
A withdrawal was made on 11 July 2018 labelled “Mr Carras bills’ and the sum is $790. There are much smaller deposits from the applicant in 2019 for $200 labelled as being for arrears.
Exhibit 9 also includes a bundle of Westpac choice account in the respondent’s name, which show the respondent made several transfers between these accounts and they also show several periods where withdrawals were made in Greece. There are several withdrawals which refer to being payments for the applicant for medical reasons. There are also deposits from the applicant for various sums. Some are without descriptions. A deposit of $450,000 from the applicant on 7 December 2015 is described as being for mortgage arrears.
She denied that they ever had discussions about having children when the applicant’s counsel suggested that they discussed having children, but then decided that they want to travel. She denied the suggestion and said that Greece is where she was born and where her home is, and that is where her medical practitioners are and where she undergoes therapy and that going to Greece is not something that they do as a common interest, but that he would often follow her and stalk her.
The respondent denied attending Mr P’s wedding as a couple and says they went separately as she was invited by his wife. She also denied attending Ms N’s funeral as a couple and said she went separately on her own. She says they had mutual friends in the Greek community. When cross-examined about the photographs annexed to the applicant’s affidavit she denied they were posing as a couple. When the applicant’s counsel suggested they were presenting as a couple in those photos she said they had the occasional date and went out for an occasional drink but were never a de facto couple.
IMPRESSIONS OF THE PARTIES
The applicant was an unimpressive witness. His evidence was unreliable in several material respects. His affidavit evidence lacks detail and significantly does not attempt to engage in any real way with the respondent’s allegations. A common refrain throughout his evidence was that he would write and say things he did not mean. This was not limited to texts and exchanges with individuals but also what he allegedly told doctors and government agencies.
Throughout the proceedings the respondent was querulous. She was highly suspicious of the applicant’s lawyers and clearly felt that the proceedings are unfair. She was argumentative and defensive at times. Her evidence as to the nature of the parties’ relationship was inconsistent. At various points when cross-examined she denied that they ever had any relationship at all, even a friendship. I do not accept the respondent’s denials that there was every any sort of relationship between them. She concedes that they had a sexual relationship although she disputes the period that it continued and alleges that in late years it was not consensual. At times she referred to the applicant as a tenant and then as an uninvited tenant. In parts of her evidence she conceded that there was a period where they were friends and also referred to them being friends with benefits.
SUBMISSIONS
The applicant’s counsel submitted that the Court should find that the parties were in a de facto relationship, when considering the whole of the circumstances of their relationship. He points to the fact that by 2008 they had purchased the B Street, Suburb C property and lived in that property until February 2019, apart from brief periods where he was excluded from the home or left. Whilst there was some dispute as to when their relationship ended, the applicant’s case is that it ended in February 2019, and that therefore he brought his application within time.
On any view the period that they shared a home was significant and certainly from 2008 until 2019, and I note that the applicant says they started living together in the respondent’s rental property in 2005.
Counsel submitted that the applicant’s evidence was that due to his snoring he would often sleep in another bedroom but that they shared a bed and they had a sexual relationship which the applicant says was healthy and consensual until 2019. The applicant did address this in his affidavit. The respondent conceded that they had a sexual relationship, and whilst the respondent’s evidence about this varied she referred to it ceasing in about 2014 after his accident.
With respect to their financial interdependence, the parties bought the B Street, Suburb C property as co-mortgagees and also bought a property in Greece together. The only joint account of the parties in evidence is with respect to the B Street, Suburb C mortgage. However, the evidence shows a significant number of deposits by the applicant into the respondent’s account from 2015 to 2019. The B Street, Suburb C rates were also in joint names. The applicant gave evidence of buying a car for the respondent but it being in his name.
The applicant’s counsel acknowledged that the applicant would have remedies in other forums such as an order for petition and sale of the property under the Property Law Act and that would involve looking at issues of contribution exclusive use and so on, but in a much more simplistic way than what the Court in this jurisdiction can consider. For those reasons, even if the Court were to find that the relationship ended prior to 2019 and therefore is out of time, the applicant would submit that the hardship provisions would support leave being granted and that this Court is the correct forum for determining the parties’ contributions. That submission assumes the Court is satisfied that the parties were in a de facto relationship for some period of time. However, in the circumstances of this case and the nature of the evidence it is really a matter of determining whether or not there was a de facto relationship at all, rather than there being a de facto relationship but of it ending earlier, and thus the issue to determine is whether the proceedings are brought out of time.
The applicant’s counsel submitted that the applicant’s evidence was that they discussed having children though decided not to. The applicant referred to this in his affidavit, noting they both had children from previous relationships and wanted to have fun.
They travelled frequently to Greece together. Sometimes flying together at other times, having overlapping periods.
The applicant’s counsel submitted that the evidence with respect to the respondent caring for the applicant after he was ill with swine flu in 2011 is indicative of a de facto relationship. The respondent’s children lived in the home with them and there were joint expenses for them as well. With respect to this submission there is very little evidence that suggests the applicant provided financial support for the children.
Turning to the reputation and public aspects of the relationship the applicant’s counsel relied on the evidence of the supporting witnesses who he points out cross-examined at some length by the respondent. However, I do not accept his submission that there was no cavilling from those witnesses that the parties were in anything other than a genuine domestic relationship because, as is apparent from my earlier discussion of that evidence in many cases they were not relying on their own knowledge at all. He also relies on the photos annexed to the affidavit which show a happy couple. With respect to the photos, the respondent did not identify photos after 2012.
Finally, the applicant’s counsel submitted that the respondent’s demeanour in the witness box and throughout the proceedings generally cannot be ignored. At times she refused to answer the most basic questions and her tendency to make speeches being very clear that she would not concede anything that was asked of her, undermines her credibility. He further submitted that she was driven to protect her home at all costs, and was prepared to lie and say whatever she wanted to in order to make that point, such that her evidence has little credibility unless it is cooperated by a contemporaneous document.
He conceded that there are also credibility problems for the applicant, but that despite this his is the evidence that should be preferred.
The respondent also made closing submissions. Her primary case is that the parties were never in a de facto relationship. She referred to the applicant’s counsel’s comments about her demeanour and said that her defensiveness has been because this case has kept away from medical treatment in Greece and refers to the applicant confessing to breaking into her bedroom with a butter knife and sexually assaulting her. Certainly he conceded using a butter knife to open her bedroom door. Although, he was reluctant to make that concession and sought to justify that conduct. His evidence did not go so far as to concede sexually assaulting her.
The respondent referred to the photos, particularly the photo taken in 2012 and says that she had photos taken with many people. She said that even with pictures of them appearing to be a happy couple, it does not translate to them being in a de facto relationship. She refers to the various text messages and communications from the applicant, including when he referred to them not being in a relationship for 10 years and of his being sexually frustrated. She refers to the lack of financial support from the applicant and failures to pay the mortgage. She referred to his submission that his smoking habit was $350 a week and says he was in arrears for child support for its own children. She said occasionally he would give her some money but then he would deposit money and then take her card to take it out again.
The respondent submitted that the applicant admitted to stealing her cards. A review of the evidence and the transcripts show that this is incorrect. She also refers to his evidence of depositing $93,000 into the Bank G mortgage account being incorrect. Certainly the Bank G account shows that he made a total of little over $8,000 in mortgage payments. However, the bank statements clearly establish the applicant making deposits totalling some $342,000 into her accounts.
The respondent drew attention to the applicant’s declarations to WorkCover and to Centrelink, where he does not declare having any interest in real estate. She refers to there being an email in evidence from the applicant dated 3 July 2019 where he agreed that he removed up to $5,000 a day from her cards. The only email exchange in evidence on this topic is the exchange referred to in paragraph 174 which does not go as far as the respondent states. She also said that the Court was being asked to ignore the evidence where he has made withdrawals from her accounts of some $250,000 just from her Westpac account, not including her other accounts. In this respect, the evidence is not so clear. The bank statements that are in evidence show a large number of transactions between accounts. There are several transfers between the respondent’s Westpac eSaver and Westpac Choice account with labels such as medical. It is not possible to tell where those funds original from. The bank statements also show several transfers from the respondent to the applicant’s Bank L account labelled medical.

One of the difficulties in this case has been the lack of evidence filed by the respondent as I indicated earlier. Whilst there were several attempts by her to file documents, the documents filed were not proper affidavits and were rejected by the registry. The purpose of chambers preparing the court book and providing a hard copy to the respondent was so that it was clear to both parties and the legal representatives for the applicant, what evidence was before the Court, and what was not. Indeed, looking at the court book, is the evidence is somewhat repetitive due to the multiple filings by the respondent of what was, in essence, the same affidavit. For example, it seems that there is the same affidavit but with handwritten comments on it.
ANALYSIS OF THE EVIDENCE AND CONCLUSION
This is a case where the credibility of the parties is in issue, which makes the task of the Court, particularly in a case like this, more difficult. The applicant bears the onus of proof in establishing on the balance of probabilities the parties were in a de facto relationship. The Court’s task is to make a determination on all of the evidence, considering all of the circumstances of the relationship rather than taking an approach of applying the factors listed in section 4AA of the Family Law Act as a checklist. The section itself and the case law acknowledges that de facto relationships can look very different. Unlike a marriage, unless the parties have registered their relationship there is no official declaration as to the status of the relationship.
Both parties had been married before and had children from previous relationships. I do not accept the respondent’s evidence that they were never in any kind of relationship. Her evidence was inconsistent in this regard and it was clear that she was very keen not to make any concessions. She claimed that there was evidence of complaints to police and of the applicant being a trespasser. Such evidence is not before the Court.
I am not satisfied that the parties started living together in 2005. There may well have been occasions where the applicant stayed the respondent’s home overnight, particularly when the children were staying with their father, but I am unable to find that it was more consistent than that.
The significant event was the parties purchasing the property at B Street, Suburb C. The respondent places much emphasis on the agreement signed by the parties before the purchase was completed. The applicant concedes that the respondent made a greater financial contribution to the purchase of the property, however he says that the proportion of their respective contributions is reflected on the title of the property. The respondent denies that the applicant made any financial contribution to the purchase of the property and claims that he spent the money he received from his father. The applicant does not provide any supporting evidence with respect to his contribution except for one sentence in his affidavit and given my concerns about his credibility, I am unable to make a finding that he made that contribution. I refer to the deed that the parties signed which explicitly states that the applicant did not make any financial contribution to the purchase. Rather, and in this regard the respondent’s evidence was consistent with the applicant by being a co-mortgage or assisted the respondent to borrow more money and buy a bigger property.
The 2008 deed is not a cohabitation agreement under de facto legislation and is not a financial agreement under the Family Law Act. The terms of that deed are somewhat consistent with the respondent’s position of them not being in a de facto relationship at that time.
The respondent’s case is not assisted by the fact that at times she was adamant that they were never in any kind of relationship. Whilst at others conceded that they had a friendship or friends with benefits type relationship. Indeed, as the hearing progressed and she became more defensive and volatile. Her evidence went from referring to there being separate bedrooms and to having a lock on the door to the applicant breaking into her house on weekends with police being called and there being surveillance cameras. I find that evidence to be grossly exaggerated and note that the respondent did not provide evidence indicating any complaints to police nor any action taken to report such incidents. It does not make sense as to why she would allow a situation to continue over such a period where he could break into the property, including at times when her children were present.
I am satisfied that the parties slept in separate bedrooms and that certainly in the later years the respondent locked her bedroom door. The applicant conceded that this was the case and admitted to using a butter knife to open the door. Although he refused to concede that this was in fact breaking into her bedroom.
I am satisfied that the parties did live together at the B Street, Suburb C property for significant periods in 2008 to 2019. I am also satisfied that the parties had a sexual relationship that became less frequent over the years. Their relationship was a volatile one. When considering the reputational aspects of the relationship and the degree of commitment to a shared life, the evidence does not support the parties being in a de facto relationship. Rather, they had a relationship more akin to that of boyfriend and girlfriend. That can be seen with respect to the respondent providing the applicant with some care whilst he was ill and I am satisfied that they spent times together in Greece. However, the commitment is what is lacking and not just by the respondent but also the applicant. The applicant went to great lengths to distance himself from anything he said in written documents ranging from the deed and the statutory declarations, to the various text and email exchanges between the parties, which are in evidence. There is also to his statements provided to Centrelink.
I do not accept that he simply went along with whatever the respondent wanted to keep her happy. This is not a relationship where one party dominated the other. This was a relationship which was volatile where at times both parties would become jealous of the other. The evidence from the applicant’s supporting witnesses when considered as a whole rather than supporting his claims that they were in a committed de facto relationship support the parties being in a less committed relationship.
The applicant claims to have contributed cash for the mortgage in household expenses regularly prior to 2018. He does not supply any supporting evidence with respect to this and her financial position at this time is very unclear. He conceded to having an expensive smoking habit. He claims that the cash he earned from his weekend work was not significant enough to require him to declare that income. Yet conversely, he has the financial capacity to make significant financial contributions. He does not provide any tax returns. There are significantly more of the respondent’s bank statements in evidence before the Court than the applicant’s because of the subpoena his lawyers issued.
The bank statements show the applicant making deposits to the respondent’s Westpac eSaver account totalling $342,949 from the period 28 May 2015 to 18 March 2019. The respondent claims that these were invariably repayments of loans and that the applicant withdrew significant amounts from the accounts. Whether or not the respondent made payments directly to the mortgage account or to the respondent is not the significant issue. Clearly they represent a significant intermingling of funds which supports the applicant’s contentions of there being a de facto relationship. However, it also has the flavour of the applicant making those deposits to the respondent’s accounts once he had lump sums available to him because of his prior inconsistencies in paying the mortgage and other expenses. I wonder too, if it was to the applicant’s benefit not to have large lump sums in accounts in his name, which he may have to otherwise declare.
Fortunately, it is not necessary for the Court to attempt to assess the parties’ contributions about which there are many allegations and little evidence, as the task is only to consider whether that together with all the other evidence supports a finding that the parties were in a de facto relationship.
In his opening address the applicant’s Counsel relied on Lynham v Director-General of Social Security (1983) 52 ALR 128. At page 131 Fitzgerald J said:
Each element of a relationship draws its colour and its significance from the other elements, some of which may point at one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.
This passage has been quoted with approval by the Full Court of the Family Court in Sinclair and Whittaker [2013] FamCAFC 129 and Crick and Bennett [2018] FamCAFC 68. I also have regard to the comments of the Full Court of the Family Court in Delamarre and Asprey [2014] FamCAFC 214 at paragraph 18:
It must also be pointed out that there is no requirement in the Act that a court in applying s 4AA is required to carry out a specific evaluation and/or weighing up of the factors in favour of and against a finding of a de facto relationship. Indeed, s 4AA(3) may well suggest to the contrary.
I have given consideration as to whether the evidence supports there being a de facto relationship for some shorter period of time than the applicant’s contention that they in a de facto relationship at the very least from 2008 until 2019, if not earlier. The evidence before the Court does not support a finding that the parties were in a de facto relationship for some of the duration and had another type of relationship for the rest of the time. In my view, it is a case where either the Court is either satisfied that the parties were in a de facto relationship or they were not. This is a case where the credibility of the parties has a great bearing on the Court’s conclusions, particularly in circumstances where the evidence of the supporting witnesses did not advance the applicant’s case. Whilst there are concerns with the credibility of both parties, the onus of establishing the de facto relationship is on the applicant. At first blush, one may think that the fact that the parties own property together and lived together may be strong indicators of the existence of a de facto relationship, however that fails to consider the evidence more holistically and consider the overall circumstances of the relationship. The evidence does not establish a degree of mutual commitment to a shared life. The evidence as to the reputation and public aspects of the relationship are limited.
On balance considering all of the evidence, I am not satisfied that the parties were in a de facto relationship and I will dismiss the initiating application and response.

I certify that the preceding two hundred and eighteen (218) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Harland.
Associate:
Dated: 24 August 2021

File number(s):	MLC 7795 of 2019
Judgment of:	JUDGE HARLAND
Date of judgment:	24 August 2021
Catchwords:	FAMILY LAW – threshold issue – whether a de facto relationship existed – consideration of the nature of the relationship – consideration as to credibility of the parties
Legislation:	Evidence Act 1995 (Cth), s 128 Family Law Act 1975 (Cth), ss 4AA(2), (5), 90RD Family Law Amendment (De Facto Financial Matters and Other Measures) Act2008 (Cth) Federal Circuit Court Rules 2001, r 13.10
Cases cited:	Bigg v Suzi (1998) FLC 92-799 Crick and Bennett [2018] FamCAFC 68 Delamarre and Asprey [2014] FamCAFC 218 Gitane v Velacruz [2007] FamCA 183 Jonah & White [2011] FamCA 221 Lindon v Commonwealth (No 2) [1996] HCA 14 Moby & Schulter (2010) FLC 93-447 Sinclair and Whittaker [2013] FamCAFC 129
Number of paragraphs:	218
Date of hearing:	10, 11 & 17 May 2021, 11 June 2021
Place:	Melbourne
Counsel for the Applicant:	Mr Laidlaw
Solicitor for the Applicant:	Farrar Gesini Dunn
Solicitor for the Respondent:	Ms Arvanitis appeared in person

ORDER MADE BY:	JUDGE HARLAND
DATE OF ORDER:	24 AUGUST 2021