Chin & Bao - [2024] FedCFamC2F 984

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Chin & Bao [2024] FedCFamC2F 984

File number(s): SYC 1198 of 2019

Judgment of: JUDGE MORLEY

Date of judgment: 26 July 2024

Catchwords: FAMILY LAW – property – whether the parties were in a de facto relationship – the Applicant alleges that the parties were in a de facto relationship from late 2013 to February 2017 – the Respondent alleges that the parties were in a relationship from late 2013 to mid-2014 and friends from mid-2014 to February 2017 – where the parties have joint property

Legislation:
Family Law Act 1975 (Cth) ss 4AA, 79, 90SM

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 8.19, 8.15(3)

Cases cited:
Calverley v Green (1984) 155 CLR 242

Fairbairn v Radecki [2022] HCA 18

Jonah & White [2012] FamCAFC 200; (2012) 48 Fam LR 56

Sandison v Thornhill (No 2) [2023] FedCFamC1F 262

Sinclair & Whittaker [2013] FamCAFC 129; (2013) FLC 93-551

Taisha & Peng and Anor [2012] FamCA 385; (2013) 48 Fam LR 150

Yesilhat v Calokerinos [2021] NSWCA

Division: Division 2 Family Law

Number of paragraphs: 169

Date of last submission/s: 27 June 2022

Date of hearing: 11-12, 26-27 August; 29-30 September; 1 October and 12 November 2021

Place: Heard in Sydney, Delivered in Parramatta

Counsel for the Applicant: Mr Morahan

Solicitor for the Applicant: Chen Shan Lawyers

Counsel for the Respondent: Mr Othen

Solicitor for the Respondent: Unified Lawyers
ORDERS

SYC 1198 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR CHIN

Applicant

AND:
MS BAO

Respondent

ORDER MADE BY:

JUDGE MORLEY

DATE OF ORDER:

26 JULY 2024

THE COURT ORDERS ON A FINAL BASIS THAT:
1.The Initiating Application filed by the Applicant on 27 February 2019 is dismissed.
2.All extant applications be otherwise dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MORLEY
INTRODUCTION

MR CHIN (“the Applicant”) and MS BAO (“the Respondent”) met online in late 2013 and certainly became friends. The Applicant contends that a de facto relationship existed between them from December 2013 until February 2017. The Respondent denies they were ever in a de facto relationship. If the Court finds in favour of the Applicant on this threshold issue, he will proceed with his application for a property alteration order. If the Court finds in favour of the Respondent, the matter is at an end.
The hearing of the threshold matter took place across 8 hearing days – 11, 12, 26 and 27 August 2021; 29 and 30 September 2021; 1 October 2021 and 12 November 2021 – and was followed by written submissions.
The Applicant was represented by Mr Morahan of Counsel, and the Respondent by Mr Othen of Counsel.
ISSUES IN DISPUTE
Whether the Applicant and the Respondent were at any time in a relationship living together on a genuine domestic basis and so in a de facto relationship, and, if so, the duration thereof.
THE PARTIES’ COMPETING PROPOSALS
The Applicant sought the following Orders, as set out in his Outline of Case Document filed on 9 August 2021:
1)A declaration pursuant to section 90RD of the Family Law Act 1975 that the parties resided in a de facto relationship within the meaning of section 4AA of the Family Law Act 1975 from December 2013 to February 2017.
2)Costs.
3)Any other orders that the Court sees fit.
The Respondent sought the following Orders, as set out in her Outline of Case Document filed on 4 August 2021:
1)That each of the orders sought by the applicant be dismissed.
2)That the injunction restraining the release from the Trust Account of Peter McBride Lawyers of $500,000 to the respondent be discharged.
3)That the applicant pay the respondent’s costs on an indemnity basis.
4)Any other orders that the Court sees fit.
In consequence of Interim Orders made on 6 June 2022 (discussed below), Order 2 sought by the Respondent need not be considered.
BRIEF PROCEDURAL HISTORY
In consequence of an interlocutory application made by the Applicant, an Order was made on 17 April 2020 restraining the Respondent from dispersing the proceeds of sale of V Street, Suburb K (“Suburb K property”) other than for the costs of sale and adjustment of rates and to pay out any loan account secured by mortgage on the property. The applicant gave an undertaking as to damages. The net proceeds of the sale affected by the injunction were held in the trust account of YY Lawyers.
During the course of the hearing, and in consequence of an interlocutory application made by the Respondent, on 1 October 2021, Orders were made by consent releasing $30,000 from those injuncted funds to be paid into the Respondent’s then solicitor’s trust account for the Respondent’s legal fees and ordinary living expenses.
Orders were also made in relation to any sale of the Applicant’s property at U Street, Suburb Q, allowing payment of costs of sale, discharge of the mortgage secured on title, payment of $30,000 into the Applicant’s solicitor’s trust account for the Applicant’s legal fees and ordinary living expenses, with the balance to be paid into the Applicant’s solicitor’s trust account and retain pending further Order.
Following an Interim Hearing on 6 June 2022, the Order made on 17 April 2020 were discharged and a fresh Order was made restraining the Respondent from in any way dealing with her interest in Suburb Y, Queensland. That freed the Respondent to utilise the remaining net proceeds of sale of the Suburb K property.
MATERIAL RELIED UPON
The Applicant
The Applicant relied upon the following material:
·Outline of Case filed on 9 August 2021;
·Initiating Application filed on 27 February 2019;
·His Affidavit sworn and filed on 3 March 2021 (“Applicant’s trial Affidavit”);
·Affidavit of Mr E sworn and filed on 11 September 2020;
·Affidavit of Mr L sworn and filed on 11 September 2020;
·Affidavit of Mr BB sworn on 11 September 2020 and filed on 14 September 2020;
·Affidavit of Ms EE sworn on 11 September 2020 and filed on 14 September 2020;
·Affidavit of Mr G sworn and filed on 25 August 2021; and
·Applicant’s Submissions on the Threshold Jurisdiction dated 31 May 2022.
Paragraphs 135 to 195 of the Applicant’s trial Affidavit is an Affidavit in Reply to the Respondent’s Affidavit dated 12 May 2020, and that Affidavit was not read by the Respondent at the hearing. At the time the Applicant swore his trial Affidavit he had the Respondent’s trial Affidavit filed on 11 September 2020 and refers to her Affidavit in paragraphs 129, 130, 132 and 133 of his trial Affidavit. The evidence in paragraphs 135 to 195 of the Applicant’s trial Affidavit can only be accepted if it is fully explicable, without reference being made to the earlier Affidavit.
The Applicant and each of the following witnesses were cross-examined: Ms EE (his mother); Mr BB (his father), and Mr E (an accountant). Evidence in chief was taken from subpoenaed witness, Ms T (a solicitor), and she was not cross-examined. Mr G, a NAATI accredited translator was also not required for cross-examination.
The Applicant made an oral and formal application to rely on the expert evidence of Mr FF (a forensic document examiner) in his Affidavit sworn and filed on 17 September 2021, but by Order of the Court made on 18 November 2021, the Application was dismissed, and the evidence of Mr FF was not admitted.
The Respondent
The Respondent relied upon the following material:
·Updated Outline of Case document filed on 4 August 2021;
·Response to Application for Final Orders filed 12 May 2020;
·Respondent’s Affidavit affirmed and filed 11 September 2020 (“Respondent’s trial Affidavit”);
·Respondent’s Proof of Evidence Under Grant of Leave adopted by the respondent in examination-in-chief and marked as Exhibit R8;
·Affidavit of Ms GG affirmed on 10 September 2020 and filed on 11 September 2020;
·Affidavit of Ms N affirmed 17 August 2020 and filed 11 September 2020;
·Affidavit of Mr P affirmed on 7 September 2020 and filed on 15 September 2020
·Submissions on Behalf of the Respondent filed 8 April 2022; and Submissions in Reply on Behalf of the Respondent filed 27 June 2022.
In the Respondent’s trial Affidavit, she refers in paragraph 3 to responding to the Applicant’s Affidavit of 27 February 2019, which she refers to as the Applicant’s “First Affidavit”, and to the Applicant’s Affidavit of 17 June 2020, which she refers to as the Applicant’s “Second Affidavit”. Wherever that occurs the evidence can only be accepted if it is fully explicable without reference made to either of those earlier Affidavits by the Applicant.
At the commencement of the Final Hearing, the Respondent indicated that she would rely on the Affidavits of HH and JJ, both filed on 11 September 2020. However, neither witness was available for cross-examination when called, no application was made under Rule 8.19 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”) and their Affidavits were not read.
The Respondent and her witness, Ms GG (the Respondent’s mother) were cross-examined. Ms N (a friend) and Mr P (a friend) were not required for cross examination[1].
[1] Transcript, 12 November 2021, page 246 lines 6 to 23.
The hearing commenced on 11 August 2021, prior to the commencement of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 and so Rule 8.15(3) of those Rules do not apply to the hearing and the annexures and exhibits to the Affidavits were admitted into evidence, subject to any successful objections, without being specifically tendered.
Exhibits
The list of documents tendered during the Final Hearing and marked as Exhibits is produced in full at Annexure A.
WHAT IS THE RELEVANT LAW?
Under section 4AA of the Family Law Act 1975 (Cth) (“the Act”), a person is in a de facto relationship with another person if the persons are not legally married to each other and the persons are not related by family and having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
The circumstances of the relationship may include all or any of the following:
(a)the duration of the relationship;
(b)the nature and extent of the parties’ common residence;
(c)whether a sexual relationship exists;
(d)the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties;
(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)care and support of children;
(i)reputation and public aspects of the relationship.
The list is self-evidently non-exhaustive (“may include”), and no particular circumstance is essential to deciding if there was a de facto relationship, and the Court 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.
There are a “great variety of ways a de facto relationship may exist”[2]. “Living together” does not require a permanent common residence on a full-time basis, or indeed any proof of a common residence[3], but “domestic basis” requires a level of domesticity, “which refers to home conditions and arrangements”[4]. The focus is on the “nature and quality” of the relationship[5]. The Court must look at the “composite picture” of the relationship[6].[7]
[2] Fairbairn v Radecki [2022] HCA 18 at [39].
[3] Fairbairn v Radecki [2022] HCA 18 at [33]
[4] Taisha & Peng and Anor [2012] FamCA 385; (2013) 48 Fam LR 150 at [20].
[5] Jonah & White [2012] FamCAFC 200; (2012) 48 Fam LR 56 at [44].
[6] Sinclair & Whittaker [2013] FamCAFC 129; (2013) FLC 93-551 at [54].
[7] Condensed from “Family Law” by Riethmuller and Smith – Seventh Edition 2022 at [7.50]
I note the careful analysis of the intermingled concepts of “cohabitation”, “living together”, and “common residence” in the judgment of Henderson J in Sandison & Thornhill (No 2) [2023] FedCFamC1F 262 at [224] to [244], including the New South Wales Court of Appeal decision in Yesilhat v Calokerinos [2021] NSWCA 110, distinguished by the High Court in Fairbairn v Radecki [2022] HCA 18.
My approach to examining the evidence and making relevant findings will be to follow the indicia of the circumstances of the parties’ relationship listed in paragraph 23, and any other relevant circumstances of the relationship revealed in the evidence, to ascertain if the parties had a relationship as a couple living together on a genuine domestic basis, and, if so, the duration of the relationship.
No relationship between the parties was registered under a prescribed law of a State or Territory as a prescribed kind of relationship.
THE EVIDENCE AND RELEVANT FINDINGS
The Applicant was born in Country B in 1990, and at the conclusion of the Final Hearing was 31 years of age and worked in the construction industry.
The Respondent was born in Country B in 1977, and at the conclusion of the Final Hearing was 44 years of age and worked as a retail worker.
The parties met in late 2013 after chatting through an online platform, and shortly thereafter began dating. At that time, the Applicant asserts that the Respondent was residing at her property in Suburb J (“the Suburb J property”), which she had purchased in or around mid‑2012.
The Respondent asserts that she was residing with her parents at her property at KK Street, Suburb M (“the Suburb M property”), and that the Suburb J property was used by her as a workplace with very occasional overnights stays by herself. The Applicant states that he was living with his parents in their property in Suburb Q (“the Suburb Q property”).
That is where the agreed facts end. From that point onwards, each party describes almost entirely different lives for the parties until February 2017, when both agree that the relationship between them, of whatever nature, terminated.
Mr Morahan for the Applicant submitted that the Respondent’s evidence was “replete with inconsistencies and … inherently unreliable” and that it should not be accepted unless corroborated by independent evidence. He submitted that during her cross-examination the Respondent was an unreliable witness, evasive and on occasions refusing to answer questions, and carefully advances that supported her case. Unfortunately, the description does not apply to the Respondent, but fully applies to the Applicant. I find that the Applicant was a most unsatisfactory witness, consistently evasive and consistently unresponsive in his answers to the point where he was warned repeatedly by me as to his duty as a witness to answer the question asked. Many of his unresponsive answers were statements of his case bearing no relation whatsoever to the question asked. My finding that the Applicant was a most unsatisfactory witness is grounded in the transcript of his cross-examination at the following pages:
·Page 87 lines 20 to 47; page 93 lines 4 to 30; page 96 lines 3 to 40; page 98 lines 39 to 46; page 112 lines 9 to 22; page 115 line 33 to page 116 line 6 [Note that the transcript is incorrectly transcribed from the audio at page 116 line 3 – the word “not”, essential to the meaning of the question, is omitted, but clearly to be heard on the audio recording]; page 121 lines 12 to 15; page 128 lines 38 to 43; page 129 lines 29 to 40; page 131 lines 12 to 45; page 147 lines 9 to 14; page 148 lines 7 to 37; page 152 lines 10 to 24; page 156 lines 8 to 31; page 159 lines 7 to 24; page 166 lines 23 to 33; page 173 line 35 to page 174 line 19 (including a third warning from me relation to non-responsive answers); page 181 line 42 to page 182 line 10; page 194 lines 38 to 43; page 204 lines 7 to 30; page 219 lines 6 to 26; and page 223 line 44 to page 226 line 3 (including a fourth warning from me in relation to non-responsive answers).
Contrary to Mr Morahan’s submission, the Respondent’s evidence was not tainted with anything like the same degree of evasion and non-responsiveness.
The duration of the relationship
The Applicant says that the parties commenced a de facto relationship sometime in December 2013 and remained in that de facto relationship until February 2017. In his Initiating Application filed on 27 February 2019, he asserted that their de facto relationship commenced in December 2014. He admitted during cross examination that he signed the Statement of Truth (which is part of that Initiating Application) but had not noticed the error.
The Respondent says that the parties were at no time in a de facto relationship but were in a romantic relationship from late 2013 until mid-2014, and thereafter were close friends and, for a time, business partners until February 2017 when the friendship ended.
During Christmas 2013, the parties went on holiday to Melbourne, with the flights booked and paid for by the Respondent. The Applicant says that the holiday was “for about one or 2 weeks”, whilst during her cross-examination the Respondent gave evidence that the holiday was for 2 or 3 nights at most[8]. Analysis of the Respondent’s Westpac credit card statements bears out the Respondent’s version and disproves the Applicant’s version, as does the cross examination of the respondent at T 30.9.21 – page 129 line 42 to page 130 – line 45.
[8] Transcript, 30 September 2021, page 131 line 40; page 132 line 6.
At some time, the parties went on a short holiday to Town AA during which photographs were taken on a beach showing the Respondent writing in the sand “[Mr Chin] & [Ms Bao]”, being a reference to the parties. The Respondent gave evidence during cross-examination that this holiday also took place during their romantic relationship that she says ended in early 2014. Photos taken during the holiday and annexed to the Applicant’s Affidavit at “F” are asserted by him to depict the Respondent in a wedding gown and are referred to by him as “our wedding photos”, but he does not give any evidence as to where and when the photographs were taken. The Respondent gives evidence that the gown she is wearing in the photographs was one of her creations and that she was wearing it to have photographs taken for her business.
For a period of approximately six weeks in 2016, the parties travelled together to Country B and Country C. The Applicant says that the purpose of the trip was to visit his relatives living in Country B, particularly his grandparents, and that the whole trip was a “wedding trip”. The tenor of the Applicant’s evidence during cross-examination was that he regarded that trip as having affected some form of marriage between the parties, though his evidence during his cross-examination as to his understanding of marriage became almost ludicrous.

The Respondent paid the costs of the trip and informed the Applicant that he would have to repay her “approximately $8,000”, which he did.
The Respondent’s evidence is that the trip to Country B and Country C was planned by her as a business trip to attend business affairs in Country B, and that she agreed with the Applicant’s request to accompany her. It is her evidence that the parties were separate for parts of the time they were in Country B while she attended to business affairs and spent time with her cousin.
The Applicant asserted that the parties were together for the duration of the entire trip and besides it being their “wedding trip”, the purpose of the trip to Country B was to visit his relatives. For part of the time in Country B the parties did jointly visit the Applicant’s relatives, though the Applicant’s evidence is that the Respondent expressed a preference for his relatives to come to them rather than them go to his relatives. The Applicant says that his grandmother gave the Respondent a ring as a recognition of their marital relationship, whereas the Respondent says that the ring was given to the Applicant to bring back to his mother in Australia, and that the grandmother gave the Respondent a bracelet as a gift.
There was conflicting evidence between the parties as to whether they slept in the same room or same bed during the trip – the Applicant asserts that they did. The Respondent denies that the parties slept in the same room or bed and says that the Applicant stayed in a hotel in City O, while she stayed with her cousin. The Respondent gives further evidence that they met up together to fly to Country C, toured the country with another couple and did not sleep in the same room or bed together during the visit, and that on their return to City O, the Applicant again stayed in a hotel and the Respondent stayed with her cousin.
In 2016, the Respondent returned to Country B without the Applicant. The Applicant asserted that the trip was for “personal matters”, while the Respondent gives evidence that the trip related to business matters.
In 2016, the parties went on a holiday together. The Applicant asserts that the parties were on the holiday as a de facto couple in a committed relationship and spent the time together as a couple. On the Respondent’s evidence, she agreed to accompany the Applicant on the holiday only as his friend, and that she spent much of her time alone on the balcony of their cabin working while the Applicant gambled. On the evidence, the cost of the holiday was paid for by the Respondent on her ANZ credit card. The Respondent says that when she was booking the holiday for the parties the only available cabin with a balcony was a double cabin, and this was the only reason why the parties shared a cabin.
The Respondent gives evidence that in early 2017, she went to Country C for the purpose of visiting friends, and during this time the Applicant remained in Australia and looked after her dog. The Applicant does not mention this event.
Documents were put into evidence by the Applicant through the Affidavit of Mr G, being text messages and social media messages that he asserts passed between himself and the Respondent, and between the Respondent and his mother, Ms EE. There was a great deal of material in the evidence as to the use of terms of endearment between the parties in such messages”.
In a message dated late 2016, both parties refer to a depicted property as “our little nest”. The messages are not presented in sequential date order but are considerably mixed as to dates. What is not available from Mr G’s evidence are specific details of the sender and receiver of such text messages, but the same can be inferred from the context in most. Twenty-four of the messages containing endearments mid-2014, and fourteen are thereafter.
The Respondent was not cross-examined about the messages asserted to have been exchanged between herself and the Applicant.
The Applicant’s mother, Ms EE refers in her Affidavit to text and messages asserted by her to have passed between herself and the Respondent, with the messages dated January 2017 containing the word “mum” and asserted to be sent from the Respondent to her, and messages dated November 2016 containing the word “mom”, also asserted to have been sent from the Respondent.
The Respondent was cross-examined about the three text messages, being those referred to in paragraphs 24 and Annexure “D” (November 2015) and 36 and Annexure “F” (October 2015) of the Ms EE Affidavit, and she denied that those messages were sent by her. The only evidence indicating that such messages were received by Ms EE from the Respondent is that given by Ms EE during her cross-examination when she said that she had received those messages to her mobile phone and that they had come from the Respondent. During the cross-examination, Mr Morahan objected to questions being asked on the basis that the Respondent had not prior to the Final Hearing presented any evidence that the asserted messages were forgeries or were not sent by her. However, I pointed out to Mr Morahan that the messages were contained in the Ms EE’s Affidavit filed on 14 September 2020 and that the Respondent’s Affidavit was filed on 11 September 2020, and in consequence the Respondent had the opportunity to address that evidence.
Though it was asserted by Ms EE during her cross-examination that the mobile phone, on which she asserts she received such text messages on, was in Australia and available, neither it nor the data thereon was produced in evidence.
Mr Morahan submitted that the Respondent’s denial that she had sent the messages “was just a lie”, and that “the content of those messages is impossible to be a result of any fabrication”, and then that “it is unlikely to be fabricated by anyone.”[9] However, the submission is hollow in that no basis is laid either in the evidence or submissions to ground the assertion that the Respondent’s evidence “was just a lie” or that it was “impossible” or even “unlikely” that the messages were fabricated.
[9] Written Submissions filed on 31 May 2022 at [25].
The nature and extent of any common residence.
The Applicant asserted that:
·From December 2013 until early 2014, the parties cohabited at the Respondent’s Suburb J property;
·From sometime in early 2014 until mid-2014, with the Respondent’s parents in Suburb M;
·mid-2014 until the purchase of the Suburb K property in early 2015, in makeshift accommodation on the second floor of the business premises at Suburb D;
·From the purchase of the Suburb K property in early 2015 until February 2017, at that Suburb K property; and
·On some occasions, the parties stayed overnight either at his parents’ home in Suburb Q or at the Respondent’s parents’ home in Suburb M.
The Applicant did not have any of his mail directed to any of the addresses at which he asserts he cohabited with the Respondent, but had his mail addressed either to the Suburb Q property where his parents lived, or LL Street, Suburb MM which is the residence of his elder brother and his family. When it was put to the Applicant during his cross-examination that he lived at his parents’ home in Suburb Q for some or all the time between December 2013 and February 2017, he responded “a little bit of time”. When it was put to him that he lived at his older brother’s Suburb MM property for some or all the time between December 2013 and February 2017 he answered, “okay. A little bit. I could say almost no, because sometimes I went to visit my brother and stayed in his place”, but he denied that he “generally lived” at that address during that period.
The Respondent’s case is that from December 2013 until the purchase of the Suburb K property in early 2015 she lived with her parents in her property at KK Street, Suburb M, and that following the purchase of the Suburb K property she began residing there, and then joined by her parents when the Suburb M property was sold. The Respondent and her parents continued living in the Suburb K property until mid-2016 when her parents moved to alternative accommodation due to her father’s poor health. The Respondent says she did not, at any time, live at the Suburb J property. She gives evidence that: she only used the Suburb J property as a workplace with very occasional overnight stays on her own; that at no time did she reside at the business in Suburb D; that at no time did she reside at the Applicant’s parents’ Suburb Q property; and that at no time whatsoever did she cohabit share a common residence in any manner with the Applicant.
In proof of his assertion that the parties cohabited at the Respondent’s Suburb J property, the Applicant relied upon both his and the Respondent’s bank and credit card statements and on some photographs annexed to his trial Affidavit.
In paragraph 20 of his trial Affidavit, the Applicant refers to his Commonwealth Bank of Australia (“CBA”) account statements for the period of 6 November 2013 to 8 March 2014 (Annexure “C”) and says that he made 33 transactions in Suburb J during that period. A full analysis of the bank statements shows that a more meaningful analysis concentrates on the number of days on which transactions were made at Suburb J, rather than the number of transactions made on the same day. In that regard, from the period between 6 November 2013 to 8 March 2014, the Applicant transacted at Suburb J on 19 out of 123 days. During the same period, and quite a number of occasions on the same days as Suburb J transactions appear, the Applicant also transacted at Suburb Q on 16 out of 123 days, and also transacted at many other suburbs– with this not including any expenditures in the city of Sydney or at venues.
The Applicant asserts that the parties commenced cohabitation in December 2013 and that his transactions at Suburb J are proof of this, but his own evidence shows transactions by him at Suburb J during November 2013 (8 of the 19 days referred to above).
The Respondent was cross examined extensively by Mr Morahan about her expenditures at Suburb J, as shown in her bank records (Exhibit “A7”). Such expenditure may be consistent with the Respondent residing at the Suburb J property, which she denied, but it is also consistent with her working through the day and perhaps into the evening at the Suburb J property as she asserts. Once again, the bank statements show a great deal of the transactions at places other than Suburb J.
In his written submissions Mr Morahan asserts that during the relevant time, the Respondent was “using her Westpac credit card only in the [Suburb J] area”[10], but patently the Respondent’s Westpac Credit Card statements (Exhibit “A7”) are expenditures, including what would be termed living expenses, at places other than Suburb J – the exceptions that disprove Mr Morahan’s submission.
[10] Written Submissions filed on 31 May 2022 at [13].
The Respondent put into evidence her ANZ Credit Card statements for the period between December 2013 to April 2014, showing most transactions thereon occurred at Suburb M. There was an inference raised in Written Submissions that during that period the Respondent was using her Westpac Credit Cards whilst one or both of her parents were using her ANZ Credit Card. This proposition was not put to the Respondent during cross-examination, nor was it put to the Respondent’s mother during her cross-examination.
I find that the parties’ respective bank records for the period between December 2013 and April 2014 do not assist in establishing the place of residence of either of the parties – any inference that the Respondent was residing at Suburb J during that period is met by the competing inference that she was residing at Suburb M. Similarly, any inference drawn from statements that the Applicant was residing at the Suburb J property during that period is met by his evidence that in November 2013 he was not residing at Suburb J but was making banking and purchase transactions at Suburb J in the same manner that he was in the succeeding 5 months.
The same finding applies to the use of the parties’ individual bank statements to attempt to prove that the parties or either of them was living at Suburb D from about mid-2014 until the business closed down, or that the Applicant was living in, at any time, the Suburb K property.
The Respondent attaches photographs to his trial Affidavit (at Annexure “E”) depicting the parties at the Suburb J property as proof of their cohabitation at such property. In paragraph 25 of his Affidavit, he asserts that the said photos were taken at the Suburb J property “from the end of 2013 to [early] 2014”. He admits the parties were in a romantic, though not a cohabitive relationship. The photograph on page 75 of his trial Affidavit confirms the Respondent’s evidence that she had attached a large panel of mirrors to one wall in the open area adjoining the kitchen of that property for her sports practice. None of the photographs depict rooms set up as bedrooms.
The photograph on page 77 of the Affidavit depicts the Applicant in the kitchen area of the property peeling fruit– not cooking or preparing a meal as asserted by the Applicant. It was put to the Respondent during her cross-examination that visible behind the Applicant’s head, in the photograph on page 77, are cookbooks on a shelf, showing that the property was used for regular cooking purposes.
However, the object referred to is an ordinary box of cereal and a book or binder (the balance of the title is behind the Applicant’s shoulder and not visible). Nothing there is identifiable as a cookbook. The photos are asserted by the Applicant to provide cohabitation of that property, but are just consistent, if not more so, with both parties being present at the Respondent’s place of work during the period of their romantic relationship prior to mid-2014, as asserted by the Respondent.
Throughout the period of December 2013 to February 2017, the Respondent’s mail was primarily addressed to initially her Suburb M address, and from early 2015 to her Suburb K address, with the short-term exception being some statements from DD Bank relation to the loan account secured by mortgage on the Suburb K property; the first and only statement which was addressed to the Suburb D business address, with the second and subsequent statements being addressed to her Suburb M address.
Over the period asserted by the Applicant to be the term of the de facto relationship, his mail was directed to his brother’s Suburb MM property – his mobile phone account details on upgrading his mobile phone in early 2017; statements for his CBA accounts account ending #14 and #28 for the whole period; statements for his NAB account ending #58 for the period of January 2015 until May 2017; his PAYG payment summary for the year ending 30 June 2014 from his employer; his payslip from that employer for the period September 2014.
A speeding fine notice dated mid-2015 was addressed to the Applicant at the Suburb MM address, certainly on the basis that the Suburb MM address was the address on his drivers’ licence at the relevant time. Pursuant to Regulation 122 of the Road Transport (Driver Licensing) Regulation 2017 (NSW) all holders of a New South Wales driver licence must notify Transport for NSW within 14 days of any change to the holder’s residential address where Transport for NSW may ordinarily make personal contact with the holder. During his cross-examination, the Applicant conceded that at no time during the relevant period of December 2013 to February 2017 he changed his address in relation to his motor-vehicle registration from his brother’s Suburb MM address[11].
[11] Transcript, 12 August 2021, page 141 line 1.
The Applicant asserted in his evidence that from the sale of the Respondent’s Suburb M property in about early 2015, the Respondent’s parents resided with the parties at the Suburb K property “for about 2 to 3 months, they then moved to another place. I have no idea whether they bought a property or rent a property”[12]. The clear and uncontradicted evidence of the Respondent and her mother (the Respondent’s father passed away in November 2019) was that from the sale of the Suburb M property, the Respondent’s parents lived with her at the Suburb K property, until moving from there to alternative accommodation in consequence of her father’s ill-health in mid-2016.
[12] Applicant’s Affidavit filed on 3 March 2021 at [29].
As brought out during Mr Othen’s cross-examination of the Applicant, it is hard to credit that the Applicant would have no idea of where the Respondent’s parents moved to from the Suburb K property if he was in a close intimate relationship with the Respondent at the time, was sharing the Suburb K property as a common residence with her at the time, and had a relationship with her as a couple living together on a genuine domestic basis.[13]
[13] Transcript, 12 August 2021, page 139 line 46 to page 140 line 44.
The Applicant’s mother gave evidence in paragraph 20 of her Affidavit that the parties lived on the second floor of the business at Suburb D and lived at the business “for about 4 to 5 days a week” and “still continued to stay at my home from time to time”. The Applicant was granted leave, following an objection, to expand on that evidence and such was attempted during examination-in-chief, set out in the transcript[14]. However, the first, second and third references to the parties living on the second floor of the business premises was led to the witness by Mr Morahan, eliciting several non-responsive answers but finally leading to an answer[15] that was non-responsive, in that the witness was asked what the Respondent had said to her and gave an answer beginning “they said to me” which purported to quote both parties, but contained reasons relating only as to why the Applicant may find it more convenient to stay at the business overnight.
[14] Transcript, 26 August 2021, page 267 line 13 to page 268 line 20.
[15] Transcript, 26 August 2021, page 268 line 14
When cross-examined about her Affidavit evidence that throughout 2014 she usually prepared breakfast for the Respondent “only on weekends, because [Mr Chin] left home to work very early”, she asserted that such evidence related to the period of time in 2014 before the business opened and gave explicit evidence that before the business opened the Applicant and Respondent were generally living with her at Suburb Q[16]. This directly contradicts with the evidence of the Applicant at paragraph 24 of his trial Affidavit where he says that in about early 2014 when the parties began to prepare the business premises they found it inconvenient to live in Suburb J and so “moved to the Respondent’s parents’ house in [Suburb M] and live with her parents for about one or two months, which was during the period that the [business] was under renovation.” Further, it had been put to the Applicant by Mr Othen during cross‑examination that prior to the opening of the business he lived at Suburb Q with his parents, and he denied this. Later in cross-examination, the Applicant’s mother completely contradicted her own earlier evidence and said, “In 2014, he stayed in [Suburb J] but over the weekend and Saturday and Sunday, they came home, and I was cooking for them and cooking extra dishes for them.”[17]
[16] Transcript, 26 August 2021, page 282 line 20.
[17] Transcript, 26 August 2021, page 285 line 3.
In paragraph 10 of the Applicant’s father’s Affidavit, he quotes a first-person conversation between himself and the Respondent that he asserts occurred in or about early 2014 “with words to the following effect” taking about a page and a half. It was put to him during his cross‑examination that it was more than 6 years since that conversation occurred, and he was asked if he said honestly that he had a clear recollection of all the conversation as he sat in Court on 27 August 2021 he responded “clearly”.

The Applicant’s clear evidence was that from approximately 2012, and even after purchasing his Suburb Q property, he lived with his older brother at Suburb MM until moving to the Respondent’s Suburb J property in December 2013. During the Applicant’s father’s cross‑examination, he clearly denied that the Applicant had lived with his older brother at Suburb MM at any time between 2012 and the Final Hearing[18]. The Applicant’s father went onto give evidence in cross-examination that “there were three stages during which [the applicant] lived for a period in [Suburb J], and after that he moved to [Suburb Q] for a period, and then he stayed in the [business]”, and after the Suburb K property was purchased, the Applicant lived there.
Once again, this evidence conflicts with the Applicant’s own evidence in that he asserted that he went from Suburb J to the Respondent’s parents’ home in Suburb M, then to the Suburb D business, and then to the Suburb K property, not that he lived with his parents at Suburb Q between Suburb J and Suburb D.
[18] Transcript, 27 August 2021, page 271 line 20.
The Applicant’s friend, Mr L, gave evidence in chief that he visited the parties at the Suburb K property “for a few times”, the first occasion being when he was accompanied by his son and he met the Respondent there, and the second time being by himself to assist the Applicant cut the grass, and was invited to stay for dinner by the Respondent. During his cross-examination, it was put to Mr L by Mr Othen that these two occasions actually occurred on one occasion, to which Mr L agreed[19].
[19] Transcript, 27 August 2021, page 291 line 32.
Mr L does not give any time, even approximate, for when he asserts, he was told by the Applicant that the Suburb K property was the Applicant’s new address, or when he visited the home and was invited to dinner and asserts that he was shown a bedroom by the Respondent and told by her “this is our bedroom”. He also asserts that “sometimes” he collected the Applicant from the Suburb K property at about 5:30am to drive him to work. The Respondent denies that she showed Mr L a bedroom and referred to it as “our bedroom” (denial being consequent upon during cross-examination on instructions)[20].
[20] Transcript, 27 August 2021, page 291 line 42.
Mr E, an accountant gave evidence for the Applicant. In his Affidavit he said that in June 2015 the Respondent came to his office and described herself as “the partner of [Mr Chin]”. At that time the Respondent was the Applicant’s business partner. He admits that he advised the Respondent that there was no need for her to add the Applicant as a spouse on a tax return. He also gave evidence in paragraph 7 of his Affidavit that when preparing the Applicant’s tax return for the year ending 30 June 2014, which would have been prepared in August 2014[21], he was instructed by the Applicant to include the Respondent as his “partner” or “spouse” on the tax return, but in fact still included the Applicant’s former partner, Ms NN.
[21] Transcript, 27 August 2021, page 303, line 46.
I find that the evidence from the Applicant’s mother and father, both in chief and in cross‑examination, about them having paid the required payments on the loan account in the Applicant’s name secured by mortgage on his Suburb Q property by regular monthly cash payments does not assist in determining the extent of any common residence occupied by the parties or indeed whether the parties had a relationship as a couple living together on a genuine domestic basis at any time.
Whether a sexual relationship existed.
The Applicant asserts in paragraph 56 of his Affidavit that in the period between December 2013 until February 2017 (“during our de facto relationship”) the parties “had sexual intercourse around 4 to 5 times a week.”
The Respondent states in paragraphs 19 to 21 of her Affidavit that during the period between late 2013 to mid-2014, the parties did not live together and “had sexual relations around six times”. She denies having sexual relations with the Applicant after mid-2014 but says that they remained close friends until February 2017 when, following an argument about the Applicant’s lack of financial contribution to the Suburb F property, their friendship ended.
There is no other evidence on this consideration.
The degree, if any, of financial dependence or interdependence, and any arrangements for financial support, between the parties.
The Applicant says that during the relationship he was receiving an income of $5,500 per month (net) as a “tradesperson”, and that between 2014 and 2017 the Respondent did not have a permanent job and was financially dependent upon him. He asserts that he regularly withdrew his income as cash and gave it to the Respondent and that on some occasions she deposited that money into her own account or accounts. He says that between January 2015 and February 2017, he withdrew $130,000 from his bank accounts and gave it as cash to the Respondent.
The Respondent agrees that she received monies from the Applicant during their friendship, and particularly during the period they jointly conducted their business trading as “OO Business” at PP Street, Suburb D (the correct address being PP Street, Suburb D). The Respondent says that the money she received from the Applicant was the Applicant’s contribution to the cost of establishing, running and maintaining the business between mid‑2014 and when it closed (which will be discussed in the next heading), and repayment to her by the Applicant for monies she lent to him.
The Applicant relies on Exhibit ‘A4’ being a “Summary Table of Deposits by the Respondent and Withdrawal from the Applicant”, linked with Exhibit ‘A5’, being a bundle of specific bank account statements for each of the parties’ showing withdrawals from the Applicant’s accounts and asserted corresponding deposits on the same day or within a few days to the Respondent’s accounts. The Respondent was cross-examined extensively on these documents, omitting that some of the withdrawals and deposits were linked, agreeing that she had received those monies from the Applicant, and denying other asserted pairings of withdrawal and deposit.
Many of the pairings are of sums in exactly the same amount withdrawn and deposited on the same day or within one day, and are within the period from 31 December 2013 to 25 September 2015, being the period of time, as best as can be ascertained on the evidence, that the parties were preparing for the opening and then conducting the business until they decided to shut it down due to structural faults in the premises rendering the further conduct of the business unprofitable. The amount asserted by the Applicant to have been withdrawn by him and then deposited by the Respondent during that period is $125,250. However, some of the pairings during that period are questionable, with the amount withdrawn not corresponding exactly with the amount asserted to have been deposited – for example, and using the code references on the exhibits, $15,000/$13,596.08 (not included in the above total); $1,000/$1,032; $4,700/$4,800; $4,200 in May 2015/ $4,500 in June 2015.
On the Applicant’s own evidence, he received $120,000 to apply towards the business – $80,000 redraw from his own home loan account on the Suburb Q property and $40,000 received from his father – and it is his evidence that the Respondent dealt with all the financial matters, and he simply provided to her his money. Accordingly, on his own evidence, withdrawals from his accounts with companion deposits to the Respondent’s accounts during the period the business was being prepared and in operation are explicable on this basis, rather than as the applicant financially supporting the respondent.
Of the purported pairings of withdrawals and deposits after October 2015 (on the Applicant’s own evidence the business closed down after October 2015) only to match as to withdrawal/deposit and date – $9,700 on 18 August 2016 and $13,100 on 2 September 2016. The Respondent agreed during cross-examination that the amount withdrawn from the Applicant’s accounts and deposited to her accounts in those two dates were the same monies[22].
[22] Transcript, 12 November 2021, page 269 lines 6 to 27.
Exhibit ‘A4’ itself casts doubt on the Applicant’s assertion that he withdrew all of his salary over the period that he asserts the parties were in a de facto relationship and gave it to the Respondent as there are many that are not paired with a deposit to the Respondent’s accounts.
The evidence shows clearly that the Respondent had some, but no very significant disclose taxable income during the relevant period – tax return for the 2015 year showing income only from the business and being a loss of $34,160 (no spouses shown on the tax return); tax return for the 2016 year showing income only from rent received are being a loss of $9167 (after allowing for one dollar of interest income) plus assessable foreign income of $6438; tax return for the 2017 year showing a taxable income of $59,656, wholly from net capital gain on the sale of her Suburb M property after allowing for accumulated losses – Exhibit ‘A1’.
However, the Respondent’s various bank statements in evidence – for example Exhibits ‘A5’ and ‘A7’ – show that at all relevant times the Respondent had significant sums of money available to her in those accounts and was by no means dependent upon the Applicant for financial support. It was her evidence that monies were in some manner due to her because of her retail business and paid in Country B to her business manager’s account and then transferred by a business manager to her. The tax implications of this system, if any, are not apparent on the evidence. Her business manager is a relative, Ms QQ, who resides in City RR in Country B. The lack of affidavit evidence from Ms QQ was explained by the Respondent in her evidence on the basis that due to the Covid-19 pandemic and movement restrictions prevalent in Country B from early 2020 through to the time of the Final Hearing, Ms QQ was unable to get to an Australian embassy or Consulate for that purpose.
The Respondent gave evidence that for a period of time she taught sports for a fee of $40 per half hour, paid in cash, early in the period of the asserted relationship she ceased charging for the lessons.
The evidence indicates that the Respondent herself paid her living expenses and for her purchases generally and paid the outgoings on the Suburb F, Suburb Y, and Suburb K properties. It was not contested by the Applicant that the Respondent paid her share of the business set up and conduct costs.
Whilst the Applicant asserts in his evidence in chief and asserted over and over in his oral evidence that he contributed to the purchase price of the Suburb F property, the Suburb Y property and the Suburb K property, he was not able to point to any specific evidence of monies being paid by him, or on his behalf, towards those purchase prices. It is the Respondent’s case that the Applicant made no contribution to the purchase price of any of the three properties (contribution being used in its usual sense, not in the widest sense available in terms of sections 79 and 90SM of the Act).
The Respondent agrees with the Applicant’s assertion that she did not have a “permanent job” in the sense of being an employee but provides adequate evidence to ground a finding that she conducted a business as a retail worker, for manufacture and sale in Country B and sometimes in Country SS.
The ownership, use and acquisition of property of the parties and either of them.
The Applicant had purchased his Suburb Q property in 2012, and the Respondent had purchased her Suburb M property in about 2009 and her Suburb J property in 2013 before meeting the Applicant.
There was one real property co-owned by the parties – R Street, Suburb F, Queensland (“the Suburb F property”). The Suburb F property was purchased in November 2014 in the names of the parties as joint tenants for $550,000. A deposit of $121,500 was paid on 10 November 2014, with monies withdrawn by the Respondent from her bank account with Westpac and paid to CC Law Firm that day. The parties borrowed $471,836.15 in their joint names on an interest only loan account with DD Bank drawn on 16 December 2014 for settlement. On the evidence, the whole of the non-loan monies paid for the purchase were provided by the Respondent, none by the Applicant. As the loan account was in the joint names of the parties, it was a joint contribution towards the purchase price. Payments towards the loan account were on interest only basis. Even if there had been repayments towards the principal of the loan, such repayments are not payments towards the purchase price of the property – Calverley v Green (1984) 155 CLR 242 per Mason and Brennan JJ at 257:
It is understandable but erroneous to regard the payment of mortgage instalments as payment of the purchase price of a home. The purchase price is what is paid in order to acquire the property; the mortgage instalments are paid to the lender from whom the money to pay some or all of the purchase price is borrowed.
The Respondent’s evidence is that through their close friendship the Applicant became aware that she was about to purchase an investment property in Queensland, and he requested that she allow him to join her in the investment, to which she agreed.
The Suburb F property was tenanted from about the time of its purchase at a commencing rent of $400 per week, all of which was paid to the Respondent and used by her to meet the interest payments due on the loan account secured on the property by mortgage to DD Bank.
The property was sold in 2017 for $740,000. The Applicant asserted that the contract for sale or transfer and that his purported signature on those documents was forged. The Respondent denies the Applicant’s accusation and referred in evidence to email communication between the Applicant and the solicitors acting on the sale, Law Firm S. The Applicant gave evidence that the purported email address described to him in the email correspondence is not his email address. The Applicant subpoenaed Ms T, the solicitor who acted on the sale, and Ms T gave evidence in chief that no independent steps had been taken to verify the Applicant’s identity, but that she had relied upon the proper conduct of the Justice of the Peace who witnessed the signature purported to be that of the Applicant on the Transfer document. The issue as to whether the Applicant was aware of the sale and the authenticity of his signature on the sale documents cannot be resolved on the balance of probabilities on the available evidence. The Applicant did not receive any monies from the sale.
It was the Applicant’s clear evidence that he took no part in the arrangements for the purchase or management of the property other than signature of the necessary loan account documents with DD Bank. All outgoings in relation to the property were met by the Respondent from her funds. Whether or not the Applicant is entitled to any monies from the sale of the property would only be a question for this Court if alteration of property proceedings ensues under section 90SM of the Act.
The Respondent purchased the Suburb K property (Folio Identifier …) between late 2014 and early 2015 for $1,100,000 in her sole name. The Respondent paid a deposit of $220,000 from her Westpac account and was assisted by her father with payment of the stamp duty and other costs of sale and ongoing council rates for the property. The Respondent borrowed $880,000 from the National Australia Bank in early 2015 on the basis of an interest only loan. The Respondent paid the interest payments on the loan account secured by mortgage on the property from her funds and the outgoings on the property other than the council rates. There is no evidence of the Applicant make any direct contribution to the purchase price of the property or interest payments on the loan account.
The Suburb K property was occupied by the Respondent from the time of its purchase until the time of its sale in 2020. The Applicant says that he and the Respondent cohabited at that property from the time its purchase until February 2017 when he left.
The Respondent purchased a property at Suburb Y, Queensland in about early 2015 for just over $600,000 in her sole name. The Respondent paid the deposit of $121,600, that sum being included in a sum of $158,026.82 paid by the Respondent to the solicitors acting on her behalf on the purchase by cheque dated 27 January 2015 drawn on the Respondent’s Z Bank account #...90, those monies being applied to stamp duty and costs in addition to the deposit. The Respondent borrowed $500,000 in late 2014 from Z Bank to apply to the purchase and refinanced that loan in early 2017 with the ANZ Bank in a sum of $485,686.88.
The Suburb Y property was tenanted from about the time of its purchase at a rent of between $600 and $700 per week, all of which was paid to the Respondent and applied by her towards payment of the loan account secured by mortgage on the Suburb Y property.
The Applicant does not give the street address of the Suburb Y property anywhere in his evidence in chief.
In early 2014, during the currency of their romantic relationship according to the Respondent and during the currency of their de facto relationship according to the Applicant, the parties decided to open a business located at PP Street, Suburb D[23]. The Respondent entered into a lease of the premise in her sole name and the parties prepared the property in mid-2014 and then opened the business under the business name “OO Business”. That business name was registered in the Respondent’s sole name and the business bank account was in the Respondent’s sole name.
[23] Incorrectly referred to as PP Street by the Applicant.
The Applicant asserted in his evidence that he purchased all the materials to “decorate [the] business” and did the fit out and decoration himself with assistance from friends and tradespersons for whom he paid. He gave evidence that he withdrew $80,000 from his home loan account and that his father lent $40,000, being a total of $120,000 to apply to the set up and running of the business.
At some time in 2015, the parties experienced difficulties with the plumbing and electricals at the premises, which rendered the conduct of the business difficult and unprofitable, and they made a joint decision to close the business down. The parties both refer to the business closing in about mid-2015, but at paragraph 187 of his trial affidavit the Applicant says, “In or about October 2015, one day the Respondent calculated the income of the [business] and I sat beside her. At that time, the Respondent said to me with words the following effect: “Our daily revenue is good. We already earned back our investment and are turning a net profit.” Around the time that we decided to close the [business], the Respondent calculated the income in front of me again.” Based on that evidence by the Applicant, the business was still operating in October 2015, and was shut down some time thereafter.
The degree if any of mutual commitment to a shared life between the parties.
During the parties’ agreed romantic relationship, the Applicant proposed marriage to the Respondent, to which she did not accept. The Respondent asserts that the surprise proposal made her consider the parties’ compatibility and brought her to the decision that they would continue not as a dating or romantic couple but as “close friends” and business partners in the business.
The Applicant’s case is that from December 2013 until February 2017, the parties were committed to a shared life together and considered themselves, from the time of the trip to Country B and Country C in 2016 to be married, and to have taken a ‘wedding trip’. The Applicant’s evidence during cross-examination as to what he understood to be the process of entering into a legal marriage in Australia, even having migrated to Australia in 2005 with his parents, was farcical.

The Applicant presented evidence, as did his mother and father, of the Respondent attending certain of the Applicant’s family functions. Photographic evidence produced for this purpose was considered by the Applicant and each of his parents to consist of photographs taken at the wedding of a relative during the period between late 2013 and early 2014, of two dinners in 2016 and 2017, and a beach scene which did not ascribe a date. The Applicant’s mother gives evidence of the Respondent being invited to a couple of the Applicant’s family’s occasions during 2015 but failing to attend.
The Applicant points to the parties’ participation in the IVF program as evidence of their commitment to a shared life. The Applicant says that the parties jointly decided to have a child, and the Respondent wanted to have two children and considered that having twins meant that she would not have to undergo labour and delivery twice and so she proposed they engage in the IVF program.
The Respondent says that she decided to have a baby as a single mother to please her father who was disappointed that by his old age he had not become a grandfather. She says that she asked the Applicant to be her sperm donor for IVF treatment because they “were very good friends”. In fact, at the time of the referral from their GP to the IVF clinic was made out in 2014 the parties were still in their romantic relationship according to the respondent.
They completed the first segment of IVF in 2014 and two viable embryos resulted. The Applicant had a single embryo transfer in 2015, but a pregnancy did not result. The remaining viable embryo was frozen awaiting decision by the parties to again proceed with treatment. After delaying a final decision for some time, the Respondent allowed the embryo to be unfrozen and so passed from being viable in 2016.
The Respondent was cross-examined extensively by Mr Morahan about the whole IVF episode and particularly upon the contents of the records from Dr TT, an obstetrician and gynaecologist (Exhibit ‘A2’).
The Applicant’s evidence about the parties’ engagement with the procedure is sparse, ending with his evidence in paragraph 97 of his Affidavit, “Unfortunately, the procedure was not successful that time. Later, we frozen saved my sperm and her eggs at this clinic.” The Respondent’s evidence is similarly sparse, resolving with, “when I found out the first egg implantation didn’t work, I realised it was the wrong thing to do and I change my mind. I cancelled the second egg implantation”.
The medical records in Exhibit ‘A2’ show that the Respondent attended a first consultation with Dr TT in 2014, the doctor making a note that she had been “the current partner for one year -Try for one year”. On the Applicant’s case the parties had been in a relationship only since late 2013, 6 months before the appointment in 2014, not one year. Similarly, the original referral letter from the GP in 2014 referred to the Respondent as someone “who has been trying to get pregnant for one year without success”. This indicates that the Applicant was providing information to the IVF clinic that was not true, wholly probably on the basis that the clinic had certain parameters for couples engaging in the treatment, though that is not provided in the evidence.
In 2014, the parties attended an appointment with Dr TT, and both signed a Consent for Assisted Reproduction Treatment form, a Consent to Freeze-Storage of Embryos form, and the Respondent alone signed a Treatment Plan form.
The Respondent alone signed a Patient Registration Form in 2014 and underwent a first implantation procedure the following month. The procedure was not successful in resulting in a pregnancy.
Dr TT notes a further consultation with the Respondent in 2015, and that the respondent wished to “have a frozen embryo transfer cycle”, and a further Patient Registration Form was signed by both parties on that day, with the doctor noting that the Respondent would recontact the clinic shortly thereafter in connection with her natural cycle – the Patient Registration Forms signed by both parties in 2015 form clearly stated the respondent’s correct date of birth.
In 2015, Dr UU prescribed fertility tablets for the Respondent.
A letter was sent to the parties in 2016 notifying that unless they took further action the stored embryo would be terminated. The notes indicate further consultation with the Respondent, they given the obvious inaccuracies in several of the dates throughout the records it could have been on the same day as the prescription was issued, in 2015, but in any case, no second implantation ever occurred.
The Respondent gave evidence that she paid all the IVF expenses herself.
Exhibit ‘A6’ is the Applicant’s Medicare records from the Commonwealth Services Australia. The Respondent was cross-examined on these documents. She was shown the address history for the Applicant, that between late 2014 and mid-2016 his address was stated as KK Street, Suburb M, and it was put to her by Mr Morahan that was an address at which she said the Applicant never lived, with which the Respondent agreed.
The Applicant’s own evidence is that he lived at the Respondent’s said Suburb M property with her parents, between leaving her Suburb J property and taking up residence above the business in Suburb D, being mid-2014. Of note is that the Applicant’s Medicare address on the form for the period December 2013 to late 2014 and again from mid-2016 to early 2017 is LL Street Suburb MM, his elder brother’s home.
It was pointed out in during the Respondent’s cross-examination by Mr Morahan that the account into which rebates were to be paid into by Medicare for the Applicant as from late 2014 was her account ending #...19 with Z Bank (per the BSB number). It was put to her by Mr Morahan that in relation to the IVF “The procedures were being paid for – or being paid for by [Mr Chin] on his Medicare card, and the rebates for those were going into your account”, to which she answered, “So the whole cost was paid – of – of IVF – was paid by me. How could Medicare pay for that?”[24]
Of course, the Respondent was quite right, nothing is paid for on a Medicare card, and when I took that point up with Mr Morahan he agreed and indicated that his point was that the provision of service to the Applicant in relation to IVF had been bulk billed, that no one else had paid and so the Respondent’s evidence that she had paid for the treatment was incorrect. Mr Morahan took the Respondent to the entry for 2014 at the top of the second page of the Applicant’s “DHS Patient History Based on Date of Service” table in Exhibit ‘A6’ where the benefit paid equalled the fee charged for an item relating to the IVF treatments, indicating that it had been bulk billed. However, an examination of other entries in the table relating to services provided to the applicant in relation to YY Service at Suburb H are not all bulk billed, for instance in 2014 there are 3 items relating to the IVF treatment where the benefit paid is less than the fee charged.
[24] Transcript, 12 November 2021, page 289 line 20.
The strong inference presented by the appearance of the Respondent’s account on the Applicant’s Medicare records is that she was making the payments for the IVF treatment and therefore was receiving any rebates to her account.
The Respondent was cross-examined extensively in relation to the IVF treatment records in Exhibit ‘A2’ to the effect that the records establish that from 2014 until the end of 2015 the parties were “actively trying to have a baby together”. The Respondent denied the assertion and indicated that after the first failure she thought about going ahead a second time but decided not to and allowed the stored material to be unfrozen and terminated. After carefully reviewing Exhibit ‘A2’ and the transcript of the cross-examination[25] –I find that I accept the Respondent’s evidence that following the unsuccessful implantation in 2014 she later considered a second attempt, but after some hesitation she decided not to proceed further sometime in 2015.
[25] Transcript, 1 October 2021, pages 189 to 228.
I also find that the information recorded on the records made by health professionals involved with the IVF treatment as to the relationship status of the parties cannot be taken at face value given the other incorrect information provided by one or both of the parties as to the length of time they had been trying to fall pregnant, a period of time significantly preceding the time of their first meeting on the Internet.
The care and support of children.
There are no children of the parties.
The reputation and public aspects of the relationship.
The Applicant relies upon the evidence of himself, each of his parents, and Mr L to establish that there was a public perception that the parties were in a relationship as a couple living together on a genuine domestic basis. As explained above, the evidence of the Applicant’s parents is in conflict with the evidence of the Applicant as to where it is asserted the Applicant was living at particular times, and that must cast some doubt on their accurate recollection of conversations that predate their evidence in chief by 5 and 6 years.
The Applicant points to the use by himself and the Respondent of terms of endearment as being indicative of a marriage relationship. Most of the occasions where such terms of endearment are found in the communications are in the period from November 2013 through to the middle of 2014, for much of which the parties were in a romantic relationship on the Respondent’s evidence and terms of endearment of various kinds may be expected. There are a few examples of the use of terms of endearment that may be inferred to relate to a marriage relationship – “wife” and “hubby” – in 2016 and the Applicant says the parties were continuing in a de facto relationship and the Respondent says they were continuing as close friends.
Other than the evidence of the Applicant’s parents as to the Respondent attending two of the Applicant’s family’s dinners in 2016 and 2017, and the evidence of Mr L as discussed above, there is no other evidence of a public perception, or even a family perception beyond the Applicant’s parents, that the Applicant and Respondent were in a relationship as a couple living together on a genuine domestic basis. There is no evidence from other family members or from neighbours or from any employees that may have been engaged at the Suburb D business, of friends or acquaintances to that effect.
The Respondent relies on the evidence of Ms N who says that she visited the Respondent at the Suburb K property “a few times between 2016 and mid 2018” and “did not see any other male living there” and “do not recall [Ms Bao] ever having a boyfriend during the time which I knew her and met with her.”
The Respondent also relies on the evidence of Mr P, whom the Respondent taught sports “almost once a week during mid-2015 to early 2018” and during that time sometimes was invited into the Suburb K property for a coffee and who did not recall “ever seeing another male at the home”.
Neither Ms N nor Mr P were required for cross-examination. That of itself does not mean the Court simply accepts the evidence is uncontested if it is contradicted by evidence in the Applicant’s case.
The Applicant’s mother (the Respondent’s father was deceased at the time of the Final Hearing) gave her evidence in chief and in cross-examination as to their assertion that the Applicant and the Respondent were living together. The Respondent’s mother gave specific evidence in paragraph 17 of her Affidavit that “at all times since returning from overseas in 2012, until late 2016, [Ms Bao] continue to live in the same home as my Husband and I. [Ms Bao] did not live anywhere else, or with anybody else, nor did anyone live in the [property] with us”.
The Respondent denies that she and the Applicant were not publicly affectionate with each other after the end of their romantic relationship in mid-2014.
The Applicant asserts that he and the Respondent visited and gave gifts to his relatives living in Country B during their Country B/Country C trip in 2015/2016 because it was part of their “wedding trip”. The Respondent says that the Applicant asked her to accompany him while he visited relatives and that she accompanies him as his friend but preferred that the relatives visit her at the parties’ travel accommodation rather than attend at the relatives’ homes because she was tired. Despite the evidence on this point from each of the Applicant’s parents is still unclear who travelled to visit whom.
The Applicant asserts that during the above-mentioned trip and visits with relatives, he introduced the Respondent as his “wife”, and the Respondent introduced him as her “husband”. The Respondent denies this evidence and says that she only introduced the Applicant to other persons, including her relatives, as her “good friend [Mr Chin]” after mid-2014.
The any other relevant circumstances to be considered.
The Applicant appeared to think that the evidence relating to the dogs was significant, and that they jointly bought and shared a dog, and jointly cared for the dogs owned by the Respondent when they first met. The Respondent says that the Applicant gave her VV as a gift when they first started dating and that she sometimes brought that dog to her Suburb J property to keep her company while she worked, and the dog moved with her from her property at Suburb M to the Suburb K property after its purchase when the dog was mainly cared for by her mother until mid-2016.
The Respondent says that WW was not her dog and was cared for by her as a favour to a friend, and the dog was cared for by her disabled relative, and shortly after being returned to her, with her friend not wanting the return of the dog, the dog disappeared from the Suburb K property.
The Respondent says that XX was purchased by herself from a breeder and was registered in her sole name and lived at the Suburb K property with herself and her parents until stolen in about mid-2016. The Applicant asserts that the parties referred to both VV and WW, on occasion, as “son”. However, the Respondent gives evidence that WW was a female dog. The Respondent was not contradicted on this point during cross-examination. I accept the evidence of the Respondent over that of the Applicant in relation to the history of the dog ownership.
Consideration of submissions.
Mr Othen of Counsel submitted that the Court:
Would be satisfied that from December 2013 until mid-2014 the parties had a personal, boyfriend/girlfriend relationship with infrequent sexual relations, all of which ended when the Applicant proposed of the Respondent in her view, prematurely and in a way which demonstrated his relative immaturity to her. The parties continued as friends after that, running a […] business together and entering into a joint venture to buy an investment property. By mid-2015, the business had come to an end, and the Applicant never came good on his share of the deposit for the investment property. When the Respondent sought to when the joint venture with the recovery of the investment property in February 2017, the friendship ended. At all times, the parties never in fact lived together.[26]
[26] Respondent’s Written Submissions filed on 8 April 2022 at [18] to [20].
He further submitted that the Applicant claimed that in February 2017, “the parties’ de facto relationship ended then, however led no evidence to suggest he was living with her at the time, and that he moved out, or that she moved out of a residence belonging to him.”[27]
[27] Respondent’s Written Submissions filed on 8 April 2022 at [31].
Mr Othen submitted that:
·the Applicant produced no objective evidence to support his claim that the parties resided together at any particular address – though bank statement, account, driving license or other documentation;
·objective evidence points to the Applicant residing at his brother’s address at LL Street, Suburb MM for the whole period December 2013 to February 2017, and when cross‑examined on the point he was most evasive about the periods of time he had lived there. The Applicant had used that address as his general address for correspondence throughout the period;
·despite the Applicant’s parents attesting to the closeness of the relationship with their son, they were patently unaware of when he had lived at the Suburb MM address and when he had not;
·the Applicant did not call is brother, the owner of the Suburb MM address, to give evidence, allowing the court to draw the Jones v Dunkel inference that the brother’s evidence would not have assisted the Applicant’s case as to where he lived and when;
·both of the Applicant’s parents were clear in their evidence that during 2014 had lived with them in their home (owned by the Applicant) at Suburb Q – in direct conflict with all of the Applicant’s evidence;
·despite asserting that he was living with the Respondent and her parents the Respondent’s Suburb K property from its purchase in mid-2015 until February 2017, the Applicant in his evidence was totally unaware that the Respondent’s parents had moved out of that property to alternative accommodation due to the Applicants father’s ill-health;
·on the balance of probabilities, the parties do not share a common residence at any time;
·cross-examination of the Applicant made plain that he operated his own bank accounts and removed money in cash for his own purposes and that he was unable (or unwilling) to account for a number of large deposits into his accounts;
·the parties at no time operated a joint bank account, not even in relation to the business, other than the joint loan account secured by mortgage on the Suburb F property;
·the Respondent occasionally lent the Applicant money, which he mostly repaid;
·the Applicant provided none of his own funds towards any of the property acquisitions – Suburb F, Suburb Y or Suburb K – and though a joint borrower on the loan account secured by mortgage on the Suburb F property in joint tenants of that property with the Respondent, he made no payments towards that loan account instalments or in relation to outgoings on that property – to the extent that such payments are not met by rental income, they were paid by the Respondent, the whole of the rental income being declared on the Respondent’s income tax returns, despite the joint tenancy, thereby reflecting the reality of the financial arrangement as opposed to the title holding;
·the Applicant had price to pay to the respondent one half of the deposit paid on purchase of the Suburb F property, but he never did;
Mr Othen submitted that as the Court would find that the parties had never shared a common residence, had never lived together, the Court would be seeking particularly compelling evidence that they were nonetheless in a de facto relationship together by reason of other factors and that none of the other factors referred to in section 4AA(2) are satisfied, and in particular that evidence of the parties having been mutually committed to a life together despite not actually living together is significantly lacking in this case.
Mr Othen prepared an extensive and detailed “chronology/list of facts” analysing the evidence and providing commentary as to how the Applicant’s asserted evidence fails to establish that the parties had a relationship as a couple living together on a genuine domestic basis at any time. Though I have carefully read and considered Mr Othen table of evidence and commentary, I have engaged in my own analysis of the evidence.
The bulk of Mr Morahan’s written submissions on behalf of the Applicant approach the matter on the basis of witness credit, in the main part presenting arguments as to why the Court would not accept the evidence of the respondent. I should address each of those categories of submissions.

I’ve already made comment in relation to Mr Morahan’s submission that the Court would find the Respondent to be an unreliable witness, evasive and concentrated on supporting her own case rather than giving responsive answers and have expressed my finding that the description applies to the Applicant, not to the Respondent.
The Applicant’s submissions refer to the Respondent’s evidence in cross-examination about medicine prescribed to the Respondent by Dr TT in 2015 as being false and inconsistent. Examination of that evidence in the transcript does not ground that submission in any way[28]. In the Written Submissions, assertions are made as to the purpose of certain medications in relation to IVF treatment but such was not revealed in the evidence at any time but is sought to be introduced as evidence in the Written Submissions and cannot be accepted[29].
[28] Transcript, 1 October 2021, pages 216 and 217.
[29] Applicant’s Written Submissions filed on 31 May 2024 at [27(d)(ii)].
Mr Morahan submits that the Respondent’s Westpac Credit Card entries for the period between November 2013 to April 2014, “contain transactions of living expenses only occurred [sic] in [Suburb J] area”, an inaccurate submission as the relevant statements evidence transactions that would be living expenses – supermarkets and food shops – during that period in a number of suburbs other than Suburb J. Mr Morahan submitted that the Respondent’s failure to disclose her Westpac Credit Card statements was a deliberate concealment on her part of her expenditures at Suburb J during that period, but the failure was explained by the Respondent in terms of having closed the Westpac Credit Card accounts some time beforehand and not having thought of them at the time of initial disclosure.
The submissions in relation to the use by the Respondent of another name do not assist as I find that the evidence in relation to the Respondent identifying herself by this name or another name does not assist in determining whether the parties were in a relationship as a couple living together on a genuine domestic basis at any particular time.
Mr Morahan submits that the Respondent’s evidence is impeached by her denial that she sent the prints of asserted social media messages to the Respondent’s mother in relation to some to the Respondent. However, it was open to the Applicant to bring forward further evidence to establish the provenance of the print of the asserted messages and expanding that regard on the evidence of the Applicant himself and his mother that such messages were received from the respondent – a matter that can always only be an assumption unless the messages are sent and received simultaneously under the site of the recipient. It was open to the Applicant to obtain by subpoena records of the relevant carriers to prove the respondent’s holding and use of certain telephone numbers denied by her as her own. That was not done.
Mr Morahan submitted in relation to the Respondent’s denial of the authenticity of the messages that in view of the composite photo containing one of the messages (in relation to which during cross-examination the Respondent denied having created being familiar with) “it is impossible to find such form of dialogue as forged instead of actually sent from [Ms Bao] herself”[30]. Exactly why it is “impossible” to make such a finding is not clear on either the evidence or in the submissions. The submission was repeated in paragraph 25 of the written submissions as “[Ms Bao]’s denial was just a lie. The content of those messages is impossible to be a result of any fabrication”, softened off later in the same paragraph to “it is unlikely to be fabricated by anyone.” Once again, those assertions are made without submission as to why it is either impossible or unlikely.
[30] Applicant’s Written Submissions filed on 31 May 2024 at [23].
Mr Morahan submits that there is no evidence supporting the Respondent’s claim that she paid all expenses for the IVF treatment but bases that submission on the Applicant’s Medicare records indicating that he presented his Medicare card to YY Service “and there were benefits paid to the Applicants Medicare associated bank account”. The set associated bank account is the Respondent’s bank account, more an indication in favour of the Respondent’s assertion that she paid any fees beyond Medicare benefit rather than in contradiction of her evidence.
Mr Morahan points to the wording on some of the forms signed by the respondent containing the words “I, as an individual or week, as a couple in an ongoing relationship, request that [YY Service] provide …” and submits that same is a clear indication that the parties were in a relationship as a couple. However, the form containing those words were signed by both parties in 2014 at a time when both parties agree they were still in a romantic relationship – the Applicant saying it was also a de facto relationship, the Respondent saying it was no more than a romantic dating relationship – so the words “as a couple in an ongoing relationship” do not confined the meaning to being a relationship as a couple living together on a genuine domestic basis.
All the documentation must be seen in the light of knowingly false information being provided to YY Service by the parties as to the period of time they had allegedly been trying to conceive, asserted by them to have commenced in 2013, 6 months before they met. Mr Morahan submits that the Respondent “refused to give evidence on the specific timing when she made a decision to give up on the idea of having a baby to IVF after the first failure”. However, using the transcript reference given by Mr Morahan in his written submissions – T215.32-33 – the submission is not borne out.
In response to Mr Morahan’s question, “Then can we take it that later that year in 2015, you decided to stop having this treatment?”, the Respondent replied, “I believe I was no longer willing to continue after the first failure, so in terms of the time, not sure whether that’s early or mid or late 2015.” The transcript of that point goes to show that Mr Morahan himself cast doubt on the accuracy of a date stated on a consultation note as October 2016, more likely to have been 2015.
Mr Morahan submission that “the prescription of [fertility medication] in 2015 is a strong indicator that she was still trying to get pregnant around that time” cannot be given any weight whatsoever as the evidence does not reveal the purpose of the medication – the only evidence being the Respondent’s evidence in cross-examination that as she recalled it was to assist her to regulate her hormones and not associated with IVF treatment[31]. The submission for the Applicant that the respondent “falsely denied she was ever financially dependent on the Applicant and that the Applicant made any contribution to the acquisition of the three properties in [Suburb F], [Suburb Y] and [Suburb K]” is not borne out on the evidence, but as found above there was no evidence that the Respondent was at any time financially dependent on the Applicant, in the same way that there is no evidence that the Respondent at any time to the acquisition of the three properties. On the evidence respondent had plenty of money available to her from her own resources throughout the period December 2013 to February 2017.
[31] Transcript, 12 November 2021, page 284 line 45.
In relation to Mr Morahan’s carefully detailed and extensive submissions about the withdrawals from the Applicant’s accounts and deposits to the Respondent’s accounts I have already examined that evidence earlier in these reasons. Quite a deal of the transactions are explicable as the Applicant’s contribution to the capital and running costs of the business and thereafter as either contribution to the outgoings cost in relation to the real property as the applicant claims, though he never presented evidence connecting those monies to any such payments by the Respondent, or as a friendly saving assistance for the benefit of the Applicant as the Respondent claimed, gaining some credence from the agreed fact that the respondent gave to the applicant $10,000 at the time the relationship of whatever nature ended in February 2017.
Mr Morahan submitted that the Applicant gave the Respondent “almost all his salary” to “manage”, but the evidence does not bear out that claim.
The Written Submissions refer to the cross-examination of the Respondent on the assistance she gave to her supporting witnesses in preparation of their Affidavits and submits that such evidence raises serious doubts about the credibility of that evidence and of the Respondent’s credibility. Careful review of that part of the cross examination in the transcript from pages 22 to 57 does not bear out any submission that the evidence given by respondents supporting witnesses, Ms N and Mr P, is infected by the actions of the respondent in obtaining that evidence. In relation the evidence in an Affidavit by the respondent’s aunt the submission is misguided as that Affidavit has not come into evidence as an opponent was not available for cross-examination, as with the respondent’s cousin, JJ.
Mr Morahan presents the Applicant’s submissions in relation to the assertion the parties shared a common residence from December 2013 until February 2017 and reviews the bank account statement evidence relied upon by the Applicant as his main evidentiary grounding, together with the photos taken Suburb J property and Mr L’s evidence.
Mr Morahan submits that the fact that the parties purchased the Suburb F property as joint tenants in mid-2014 as a strong indicator “that they committed to a de facto relationship”. I cannot accept that the purchase of a property as joint tenants by two persons is itself indicative of any stream of commitment to a de facto relationship, or of a de facto relationship at all, without it being able to be a link in a much longer chain leading to such a finding on the balance of probabilities. The reason given by the Respondent for entering the joint tenancy with the Applicant is just as feasible as the Applicant’s assertion that they were purchasing as a couple. The Applicant’s assertion raises the question as to why the other properties purchased during the period of time, he asserts the parties are in a de facto relationship were not also purchased by the parties jointly.
Mr Morahan asserts in his Written Submissions at paragraph 53 that “It is safe to say, considering the couples limited financial resources during the de facto relationship, that the mortgage repayment was the major financial task of the couples [sic] from late 2014, and the Applicant played an important role by contributing all his salary income.” The Applicant did not contribute all his salary income; the Respondent’s financial resources were not limited during the period December 2013 to February 2017, but were substantial capital sums in her bank accounts, and the evidence does not bear out that the mortgage repayments were a major financial task of the couple, but only that they were a task of the respondent when fact made all of those payments. The Applicant asserts that the monies used to make those payments came from his salary given by him to the Respondent. There is no evidence presented showing that any monies passed from the Applicant to the Respondent were applied towards payment of purchase monies or repayment of loan accounts secured by mortgage on the properties.
In conclusion Mr Morahan submits that the Court should conclude that the parties are in a de facto relationship within the meaning of section 4AA of the Act and that such de facto relationship lasted from December 2013 to February 2017.
CONCLUSION.
As the authorities indicate, it is not necessary to find that the parties shared a common residence in any particular time for the Court to find that the parties had a relationship as a couple living together on a genuine domestic basis and so were in a de facto relationship, but I accept Mr Othen’s submission that in the absence of a finding that the parties did share a common residence, there must certainly be sufficient evidence of some circumstance or circumstances of their relationship that shows that such was a relationship as a couple living together on a genuine domestic basis, whilst bearing in mind that no particular finding in relation to any circumstance is a necessary component of a finding of a de facto relationship.
The circumstances set out in subsection 4AA(2) are matters to be considered on the evidence and, where possible, relevant findings made. I am not satisfied that the parties at any time shared a common residence. I’m not satisfied that a sexual relationship existed between the parties beyond mid-2014. I find that there was no financial dependence or interdependence between the parties or any arrangements between them for financial support of one by the other.
The parties acquired one property jointly, the Suburb F property, and I find that the circumstances surrounding that purchase tend towards a finding of a failed joint venture where one party was left “holding the bag” due to the others party’s failure to live up to the bargain, as opposed to it being a circumstance tending to show a commitment to a shared life or any other circumstance tending to identifying a relationship of the parties as a couple living together on a genuine domestic basis.
I do not find that the whole of the evidence demonstrates on the part of either party such a degree of commitment to a shared life that it could be found to be a mutual commitment to a shared life. I also find that there is insufficient evidence of the parties having a reputation amongst family, friends or the public generally of the reputation being as a couple living together on a genuine domestic basis, a de facto relationship.
The standard of proof required is the civil standard of the balance of probabilities – section 140 of the Evidence Act 1995 (Cth). The parties were at no time legally married to each other and they are not related by family. I am unable to find on the balance of probabilities that these parties were at any time in a relationship as a couple living together on a genuine domestic basis.
Accordingly, the proper Order to be made is an Order dismissing the Initiating Application of the Applicant filed 27 February 2019 on the basis that the Court is without jurisdiction to consider an alteration of interest in the property of the parties or either of them under section 90SM of the Family Law Act 1975 (Cth).

I certify that the preceding one hundred and sixty-nine (169) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Morley.
Associate:
Dated: 26 July 2024
ANNEXURE A
List of Exhibits

Exhibit ‘A1’ Personal income tax returns for Ms Bao dated 30 June 2015, 2016 and 2017

Exhibit ‘A2’ Pages 19 to 58 of the applicant’s Tender Bundle

Exhibit ‘A3’ DD Bank Application for Mortgage Lending Broker with Electronic Submissions Number …

Exhibit ‘A4’ Summary Table of Deposit by the respondent and Withdrawal From the applicant

Exhibit ‘A5’ Bank Statement Bundle

Exhibit ‘A6’ Bundle of Medicare Documents

Exhibit ‘A7’ Tender 3, Westpac Personal #...00 (November 2013 – December 2014) and Tender 4, Westpac Credit Card #...97 (November 2013 – April 2015)

Exhibit ‘A8’ Letter dated 17 July 2020 from Chen Shan Lawyers to ZZ Lawyers

Exhibit ‘A9’ Letter dated 31 August 2020 from ZZ Lawyers to Chen Shan Lawyers

Exhibit ‘R1’ Bundle of Bank Statements in the name of the applicant for account ending …20 with the Commonwealth Bank of Australia dated 9/12/2014

Exhibit ‘R2’ Bundle of Bank Statements for an account in the applicant’s name with the National Australia Bank, NAB classic banking, for the period starting 24 January and ending 24 March 2017

Exhibit ‘R3’ Initiating Application of the applicant dated 27 February 2019

Exhibit ‘R4’ Three pages, First one a PAYG summary individual non-business relating to the applicant from the applicant’s employer; the second page a payslip from the respondent’s employer relating to the respondent, pay 10.31 pm, Friday, 2021 2014; the third one a pay advice from the applicant’s employer

Exhibit ‘R5’ Costs Notice for the respondent

Exhibit ‘R6’ Two pages, the first being a page from the affidavit of the applicant sealed 19 June 2020 and in relation thereto is paragraph 90; the second page being from an affidavit of the applicant sealed 11 September 2020, in relation thereto is paragraph 153

Exhibit ‘R7’ Bank statement of the Commonwealth Bank of Australia for an account in the name of the applicant ending in #...20

Exhibit ‘R8’ Respondent’s Proof of Evidence under Grant of Leave

File number(s):	SYC 1198 of 2019
Judgment of:	JUDGE MORLEY
Date of judgment:	26 July 2024
Catchwords:	FAMILY LAW – property – whether the parties were in a de facto relationship – the Applicant alleges that the parties were in a de facto relationship from late 2013 to February 2017 – the Respondent alleges that the parties were in a relationship from late 2013 to mid-2014 and friends from mid-2014 to February 2017 – where the parties have joint property
Legislation:	Family Law Act 1975 (Cth) ss 4AA, 79, 90SM Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 8.19, 8.15(3)
Cases cited:	Calverley v Green (1984) 155 CLR 242 Fairbairn v Radecki [2022] HCA 18 Jonah & White [2012] FamCAFC 200; (2012) 48 Fam LR 56 Sandison v Thornhill (No 2) [2023] FedCFamC1F 262 Sinclair & Whittaker [2013] FamCAFC 129; (2013) FLC 93-551 Taisha & Peng and Anor [2012] FamCA 385; (2013) 48 Fam LR 150 Yesilhat v Calokerinos [2021] NSWCA
Division:	Division 2 Family Law
Number of paragraphs:	169
Date of last submission/s:	27 June 2022
Date of hearing:	11-12, 26-27 August; 29-30 September; 1 October and 12 November 2021
Place:	Heard in Sydney, Delivered in Parramatta
Counsel for the Applicant:	Mr Morahan
Solicitor for the Applicant:	Chen Shan Lawyers
Counsel for the Respondent:	Mr Othen
Solicitor for the Respondent:	Unified Lawyers

SYC 1198 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR CHIN Applicant
AND:	MS BAO Respondent

ORDER MADE BY:	JUDGE MORLEY
DATE OF ORDER:	26 JULY 2024

Exhibit ‘A1’	Personal income tax returns for Ms Bao dated 30 June 2015, 2016 and 2017
Exhibit ‘A2’	Pages 19 to 58 of the applicant’s Tender Bundle
Exhibit ‘A3’	DD Bank Application for Mortgage Lending Broker with Electronic Submissions Number …
Exhibit ‘A4’	Summary Table of Deposit by the respondent and Withdrawal From the applicant
Exhibit ‘A5’	Bank Statement Bundle
Exhibit ‘A6’	Bundle of Medicare Documents
Exhibit ‘A7’	Tender 3, Westpac Personal #...00 (November 2013 – December 2014) and Tender 4, Westpac Credit Card #...97 (November 2013 – April 2015)
Exhibit ‘A8’	Letter dated 17 July 2020 from Chen Shan Lawyers to ZZ Lawyers
Exhibit ‘A9’	Letter dated 31 August 2020 from ZZ Lawyers to Chen Shan Lawyers
Exhibit ‘R1’	Bundle of Bank Statements in the name of the applicant for account ending …20 with the Commonwealth Bank of Australia dated 9/12/2014
Exhibit ‘R2’	Bundle of Bank Statements for an account in the applicant’s name with the National Australia Bank, NAB classic banking, for the period starting 24 January and ending 24 March 2017
Exhibit ‘R3’	Initiating Application of the applicant dated 27 February 2019
Exhibit ‘R4’	Three pages, First one a PAYG summary individual non-business relating to the applicant from the applicant’s employer; the second page a payslip from the respondent’s employer relating to the respondent, pay 10.31 pm, Friday, 2021 2014; the third one a pay advice from the applicant’s employer
Exhibit ‘R5’	Costs Notice for the respondent
Exhibit ‘R6’	Two pages, the first being a page from the affidavit of the applicant sealed 19 June 2020 and in relation thereto is paragraph 90; the second page being from an affidavit of the applicant sealed 11 September 2020, in relation thereto is paragraph 153
Exhibit ‘R7’	Bank statement of the Commonwealth Bank of Australia for an account in the name of the applicant ending in #...20
Exhibit ‘R8’	Respondent’s Proof of Evidence under Grant of Leave