Clisbey & Vas - [2011] FamCA 611

FAMILY COURT OF AUSTRALIA

CLISBEY & VIGES

[2011] FamCA 611

FAMILY LAW – De facto relationship – whether parties were in a de facto relationship on 1 March 2009 to determine jurisdiction of court

APPLICANT:

Ms Clisbey

RESPONDENT:

Mr Viges

FILE NUMBER:

SYC

7660

2009

DATE DELIVERED:

8 August 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Stevenson J

HEARING DATE:

13 & 14 July 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Wong

SOLICITOR FOR THE APPLICANT:

Armstrong Legal

COUNSEL FOR THE RESPONDENT:

Mr Lethbridge SC

SOLICITOR FOR THE RESPONDENT:

Barkus Doolan Kelly

Orders

That the application filed on 15 December 2009 is dismissed.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7660 of 2009

Ms Clisbey

Applicant

And

Mr Viges

Respondent

REASONS FOR JUDGMENT

the proceedings

On 15 December 2009, Ms Clisbey commenced proceedings for alteration of property interests following the breakdown of her de facto relationship with Mr Viges. By a Response filed on 11 March 2010 he objected to jurisdiction. He claimed that the parties’ de facto relationship ended on or before 1 March 2009, when the relevant legislation came into effect. The question of the date of breakdown of the de facto relationship was listed for determination as a discrete issue on 13 and 14 July 2011.
The applicant alleged that the parties separated “in or around June 2009”. The respondent maintained that the relationship broke down on a final basis on 10 February 2009. For the purposes only of the determination of this discrete issue, the respondent conceded that the de facto relationship subsisted for a period in excess of two years.

The Evidence and Witnesses

The applicant relied on her affidavits sworn on 17 March 2010 and 20 June 2011. She presented as a polite person who endeavoured to give accurate evidence.
The respondent relied on the following affidavits:
1.Mr Viges (the respondent) sworn 5 July 2011
2.Ms R Viges (the respondent’s daughter) sworn on 5 July 2011
3.Mr K (the respondent’s friend) sworn on 16 April 2010
4.Ms B (the respondent’s friend) sworn on 16 April 2010
The respondent and his witnesses also presented as polite people who endeavoured to give accurate evidence.
The parties were in basic agreement as to the chronology of relevant events. There were disputes as to the details of certain conversations in February 2009, which might be expected given the lapse of time. There was no dispute that the respondent left their home on 10 February 2009, taking his personal effects. It was common ground that they exchanged text messages between February 2009 and 25 September 2009. They agreed that they spoke by telephone between 10 February 2009 and 27 February 2009. It was further agreed that the respondent wrote letters to the applicant on 11 May 2009 and 14 June 2009 and that she wrote to him on 2 June 2009.

Background

The respondent was born in 1954 and is now 56 years of age. He is a professional person by occupation. The applicant was born in 1959 and is now 51 years old. She is an administration officer by occupation.
The parties met in late 1997. The respondent offered the applicant a job in his practice, which she commenced in January 1998. At this time the applicant was married and lived with her then husband and two children. The respondent had been married but was divorced.
In late 1998 the parties commenced an intimate personal relationship. The applicant continued to live with her husband until July 1999, when she and her two children moved into a home unit.
Between late 1998 and 1 September 2006 the parties occupied separate residences but spent time with each other overnight. In June 2006 they exchanged contracts for the joint purchase of a property at T Street, Sydney Suburb 1 for $2.9 million. They held title to the property as tenants-in-common as to a 20% and 80% interest respectively to the applicant and respondent. On 1 September 2006 they moved into the property with the applicant’s two children.
In November 2007 the parties exchanged contracts for the sale of the Sydney Suburb 1 property for a price of $3,280,000. The respondent’s letter to the applicant dated 14 June 2009, which was annexed to her affidavit sworn on 16 March 2010, suggested that they divided the proceeds of sale of the Sydney Suburb 1 property between them. He maintained that they agreed that they would each buy a home and that he would rent premises for six months while they did so. He did purchase a unit at Sydney Suburb 1 in April 2008. They jointly leased a property at D Street, Sydney Suburb 2 in February 2008 and moved into this home together in March 2008. The respondent paid the rent for the Sydney Suburb 2 residence until August 2009.
In April 2008 the respondent purchased a unit at F Street, Sydney Suburb 1 in his sole name. He moved into these premises alone in May 2008. In August/September 2008 he went to live in the Sydney Suburb 2 property with the applicant and her two children.
On 8 February 2009 the parties had an argument and stopped speaking to each other. The next morning the respondent said to the applicant “our relationship is not working”. She made no reply.
The respondent alleged that he said to the applicant on the morning of 10 February 2009 “I can’t live like this any more. I am leaving you. I am moving out of the house”. The applicant denied that he said these or similar words on that morning.
The respondent claimed that he packed his clothes and personal belongings on the morning of 10 February 2009. The applicant said that he left “only a few things in a bedside table, such as pyjamas”. The respondent said that he took all of his clothes, leaving only some items in a washing basket.
The respondent claimed that he packed two or three suitcases and two or three boxes into his car. As he was leaving on the morning of 10 February 2009 the applicant handed to him a special latex pillow which he always used.
The respondent stayed in a self-contained apartment at Sydney Suburb 3 from 10-15 February 2009 and then lived at a motel in Sydney Suburb 4 for nine days. He stayed at two other motels until he travelled to the United States of America on 27 February 2009.
On 11 February 2009 the respondent telephoned his friend Ms B and said “[Ms Clisbey] and I have separated. Is it okay if I store some of my stuff at your house until my flat is ready?”. Ms B said that the respondent delivered two small boxes and two suitcases to her home on about 12 February 2009.
The respondent asserted that he told his friend, Mr K, on 14 February 2009 “I am now living in a motel as I am separated from my partner”. Mr K corroborated this evidence.
The applicant agreed that she did not know the respondent’s whereabouts between 10 and 22 February 2009. She agreed that she made no enquiry at his surgery on 11 February 2009 or otherwise attempted to find out where he was living between 10 and 22 February 2009.
On 19 February 2009 the respondent sent to the applicant a text message which stated “missing you”. They spoke by telephone on 19 or 22 February 2009 and, by agreement, the respondent took his washing to the Sydney Suburb 2 property that day. The applicant said that these events occurred on 19 February 2009, which was a Wednesday. The respondent said that he was doing paperwork at his practice on a Sunday when the applicant telephoned him and that he took his washing to the Sydney Suburb 2 property. The respondent appears to be correct on this detail, as 22 February 2009 was a Sunday.
The respondent’s recall of detail seemed generally to be superior to that of the applicant. His version of events seemed to me to have an inherent consistency and likelihood which was less evidence in that of the applicant. I point out below examples in the evidence which led me to this conclusion. Without suggesting in any way that the applicant was untruthful, I prefer the evidence of the respondent wherever there was a conflict.
On 22 February 2009 the respondent started the washing machine and the parties shared a lunch prepared by the applicant. He claimed, and she denied, that he said “I can’t live with you” while he was at the Sydney Suburb 2 property on this day. He left before his washing finished and went to play tennis. The applicant hung out and folded the clothes, which he collected later that evening.
On 25 and 26 February 2009 the respondent visited the applicant at the Sydney Suburb 2 property and they shared dinner on at least one of those evenings. On 25 February 2009 the respondent told the applicant that he was going overseas to see his daughter and her new boyfriend. The applicant asked him to buy duty free perfume for her and he did so.
During conversations at the Sydney Suburb 2 home on 25 and/or 26 February 2009 the respondent said to the applicant “maybe if we were going to try and make it work again we should try some counselling first?”. In oral evidence the respondent said that he also suggested counselling on 22 February 2009 but there was no mention that he did so in his affidavit.
On 27 February 2009 the respondent travelled to the USA and met his daughter Ms R Viges. The respondent said that he told his daughter “it is over between [Ms Clisbey] and I. I moved out a few weeks ago and have been living in motels”. This evidence was corroborated by Ms R Viges.
The respondent said that there was no discussion about the furniture in the Sydney Suburb 2 house before he left for the USA because the parties had already divided the contents of the Sydney Suburb 1 property on its sale. His furniture was in storage and that of the applicant was located in the Sydney Suburb 2 premises.
The applicant did not ask the respondent how long he intended to be overseas or where he would live on his return. She said that she expected that he would move back into the Sydney Suburb 2 home at the end of his holiday.
On 2 March 2009 the respondent sent a text message to the applicant stating “arrived safely jet jagged and trying to sleep it off miss you”. On 3 March 2009 the applicant sent a text message to the respondent which stated “I know that you are not remotely interested in my life. You can stop pretending. I have been doing some research. Guess what I found? You sick retarded narcissistic bastard. Every question and doubt I had about myself has finally been answered. It is nothing to do with me. I am the normal one. You are the one with the personality disorder which for the last ten years you neglected to warn me about. If your shrink detected it then I should have been warned about you. Do not contact me again. Future dealings with you will be made by my solicitor.”
In cross-examination the applicant said: “Yes this was my view of him at the time. It is not true that this attitude was born out of anger at him for leaving me. Absolutely I meant ‘do not contact me again’. Yes I had ended the relationship when I sent this text on 3 March 2009. I had formed that view on that day.”
On 8 March 2009 the respondent sent to the applicant a text message which read: “call me all you like. I cannot live with being humiliated all the time. I have to do what you want me to do or be in the doghouse and live with being told I am lazy when I work so hard. Remember being cold and not talking for weeks is the worst form of cruelty. I have been asking you to stop this for years.” On the same day the applicant responded: “A classic narcissistic personality response”.
On 9 March 2009 the respondent sent a text message to the applicant which read: “I am used to you abusing me and being angry. I have tried to make you happy when I am away you are nice and when I am back with you you push me away you put up a wall around yourself and stop talking to me for two to three weeks when you treat someone that way then your doubts become a self fulfilling prophecy blame me all you want but take time to think about how you treat me before you become abusive to me I hope you can see how unhappy and angry you are blame me all you want but I am not the cause of this”.
On 10 March 2009 the applicant sent a text message to the respondent which read: “unfortunately your disorder won’t allow you to take responsibility for YOUR actions. It is a proven and documented fact. The expert advice I have is to run. Living with a narcissist is like living in a hell on earth. A reality that took me too long to understand. I leave this sick relationship feeling totally used and abused. A fact that you can’t relate to or have the capacity to understand. I have the chance to heal. There is no cure for your condition.”
On 10 March 2009 the respondent sent a text message to the applicant which read: “[Ms Clisbey’s first name] I do love you and I want to fix our relationship but I am not going to try on my own you need to try hard as well and if you don’t then I also will give up I do not want anyone else in my life.”
On the same day the applicant sent a text message to the respondent which read: “[Mr Viges’ first name] I am not calling you names but merely stating facts. I got professional help re our relationship. It was uncovered that I don’t have a problem. You have a personality disorder called narcissism. I know you can’t accept this. Reading the facts and traits of this disorder is like reading the bio of [Mr Viges]. It has even been documented by Yeung. There is no solution. I have been advised to leave the relationship. Staying and enduring mental abuse from you is not an option. Family law equates it to domestic violence. You are not capable of having a loving relationship with a partner – only yourself. This is a proven fact. Do your research.”
On 13 March 2009 the respondent sent to the applicant two text messages, which read: “continue to be abusive” and “do whatever you want I won’t be crawling to you like I have all these years”. He sent a third text message on 13 March 2009 which read: “If you want to move on that’s fine I am not the one who gave you the silent treatment for three weeks and never showed any love so do whatever you like this time I am not going to stop you I am not going to call you names I just want peace in my life and not be scared of upsetting you all the time”.
On 16 March 2009 the respondent texted the applicant “we need to talk”. On 18 March 2009 he sent a message stating “would you like to talk?”
On 28 March 2009 the respondent sent to the applicant a text message which read: “I think of you all the time when I am awake even when I stir in the middle of the night my feelings are so strong that I should be with you now take ownership of some of the reason why we are not together and stop being so angry I would love to find a way to make it work with you but I cannot do it on my own”.
There were numerous additional text messages exchanged between the parties. In some of these messages the respondent expressed his love for the applicant. For example, on 9 June 2009 he texted “[Ms Clisbey’s first name] I love you” and “look for a place and let me know how much you need and I will try to get it for you”. On 21 June 2009 he sent a message “then that is your loss I love you and think of you all the time and I will only discuss my proposition person to person and not by SMS the call is on your court I want to help because I care now just think about it start being rational you have never had someone who wants to help you like I do don’t keep pushing me away like you have done for years start by admitting that I have done a lot for you”.
On 21 June 2009 the respondent sent messages to the applicant: “I would like to try again now” and “I do know what you did for me that is why I want to support you while you were on my side it was the most enjoyable period of my life that is why I am not giving up on you” and “answer my question do you love me”. On 22 June 2009 the respondent sent a message to the applicant “[Ms Clisbey’s first name] if you love me tell me now yes or no we are at a crossroad and tomorrow will be too late do things differently this time and break down this wall around you”. On 5 July 2009 he sent a message: “[Ms Clisbey’s first name] I love you and have always wanted to grow old with you the last ten years have not been a lie”.
On 11 May 2009 the respondent wrote a letter to the applicant which was annexed to her affidavit sworn on 16 March 2010. In this letter he stated inter alia: “I am writing this letter because I do not want to end a ten year plus relationship and become total strangers. I loved being with you during that period. We just had differences and we could not resolve...I am very lonely and I miss you a lot. I think of you all day and night. My friends are all trying to get me into a better mood. But in spite of feeling so bad I know it is wrong to be in a household where there is so much anger and tension. That is why I want to live separately and apart. Maybe we can deal with this tension…I know you did not like me going overseas. I had to do it. I needed to get away and have the space to find out what is going wrong and why…I want you to buy a house so you can have the security of having your own place…You have a wonderful side to you which I love with all my heart. But I cannot cope with the anger that you show. Being away from you has made me understand our relationship a bit better.”
In his letter dated 14 June 2009 the respondent discussed a financial settlement between the parties. This letter responded to correspondence from the applicant to the respondent, dated 2 June 2009, which was not in evidence.
When the respondent returned from the United States he moved into his unit at Sydney Suburb 1. He has since attended the Sydney Suburb 2 premises on two brief occasions and never stayed overnight. He continued to pay the rental until August 2009.
In cross-examination the applicant conceded as follows: “Since 10 February 2009 we have not occupied the same premises, had sexual relations, gone out together as a couple, attended family functions together, jointly done household tasks and I have not had access to his credit card. After 10 February 2009 there were direct debits to his credit card for rent and an E-tag, otherwise he has made no financial contribution to my household.”

Consideration

The definition of “de facto relationship” is set out in section 4AA of the Family Law Act. Section 4AA(1) provides:
A person is in a de facto relationship with another person if:
(a)the persons are not legally married to each other; and
(b)the persons are not related by family (see subsection (6)); and
(c)having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has effect subject to subsection (5).
Section 4AA(2) elaborates on the term “circumstances” and provides:
Those circumstances may include any or all of the following:
(a)the duration of the relationship;
(b)the nature and extent of their common residence;
(c)whether a sexual relationship exists;
(d)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e)the ownership, use and acquisition of their property;
(f)the degree of mutual commitment to a shared life;
(g)whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h)the care and support of children;
(i)the reputation and public aspects of the relationship.

As noted, the respondent conceded the existence of a de facto relationship of more than two years duration for the purposes only of determination of the discrete issue of the date of the parties’ separation. He placed in issue the date of separation and it thus falls to the applicant to establish that a de facto relationship subsisted following the commencement date of the legislation. In the Queensland Court of Appeal decision of S & B [2005] 1QLD 537 Dutney J said:
“…party asserting a continuing relationship must prove the positive aspects of the relationship rather than the party asserting a separation being required to prove the negative”.
A number of authorities dealt with the elements necessary to establish “separation” for the purposes of section 48 of the Family Law Act, for example Pavey & Pavey (1976) FLC 90-051 at pp 75, 211 to 213 and Todd & Todd (2) 1976 FLC 90-008 at page 75,078. These elements are:
·intention
·action
·communication
This analysis was applied to a de facto relationship by McGuire FM in Aitken & Deacon FMCAFam35. His Honour said:
“9. Those authorities make it clear that there are three elements of separation in a legal sense. They are:
a. The development of an intention to separate. That intention need not be mutual.
b. The communication of that intention to the other party. In my view such communication should be unambiguous and unconditional.
c. Some form of action upon the determination to separate.
10. I am of the view that the test of the element of “communication” is an objective one.
11. As Watson J stated in Todd and Todd (No. 2)[1] at [75,079]:
Separation can only occur in the sense used by the Act where one or both of the spouses form the intention to sever or not to resume the marital relationship and act upon that intention, or alternatively act as if the marital relationship has been severed.
12. The communication of the intention is an absolute requirement. Whilst that communication can be spoken or unspoken[2], it should be unequivocal, unconditional and unambiguous.
13. Whilst there are guiding principles, it remains that each case must be determined upon its own facts. As the Full Court of the Family Court of Australia said in Pavey and Pavey[3] at [75,214]:
...it is not possible to apply some mathematical formula to these activities and determine whether a “separation” has occurred. Rather the evidence should examine and contrast the state of the marital relationship before and after the alleged separation.”
In Hibberson v George 12FamLR 725 the New South Wales Court of Appeal dealt with an application under the then prevailing De Facto Relationships Act 1984 (New South Wales). One issue was whether the de facto relationship ended before the commencement date of that Act which was 1 July 1985. There were similarities in the facts of Hibberson v George and the present proceedings. For that reason, I will refer to the factual background of that decision.
The facts in Hibberson and George were summarised in the judgment of Mahoney JA. Briefly, the parties separated in 1985 when the female partner left the parties’ home with their two children and went to stay with her brother. She said that she wanted time to think about her relationship with the male partner. In June 1985 he failed to return the children to her after they spent time with him and later made an application for them to live with him. The female partner was considering a reconciliation at this time but the male partner’s retention of the children caused her great stress and undermined their ability to communicate for some time. She said that she intended to leave the relationship permanently in May 1985 but there were subsequent discussions between the parties about a reconciliation. In August 1985 she obtained a flat for herself and the children and their parenting dispute was settled in September 1985. Thereafter the parties had little communication with each other. In February 1986 there were conversations between the parties, during which the male partner suggested they should try to resurrect their relationship. The female partner said that she was prepared to return to the relationship but, a day or two later, the male partner said that he had changed his mind. The female partner had made it clear that she would reconcile only on the basis of a marriage and the male partner refused that offer.
Mahoney J held: “the learned judge decided against Ms Hibberson in this regard. In my opinion, his conclusion was correct. What is involved is living…together as husband and wife on a bona fide domestic basis. It is correct, as Mr Hamilton QC has submitted, that the relevant relationship may continue notwithstanding that the parties are apart, for example, on holidays…
“The essence of the present relationship lies, not in law, but in a de facto situation. I do not mean by this that cohabitation is essential to its continuance: holidays and the like show this. But where one party determines ‘not to live together’ with the other and in that sense keeps apart, the relationship ceases, even though it be merely, as it was suggested in the present case, to enable the one party or the other to decide whether it should continue.” Hope and McHugh JA agreed with these conclusions.
This approach was adopted by the Queensland Court of Appeal in S & B op cit. Dutney J, with whom Macpherson and Williams JJ agreed, said:
“Applying the passage of Mahoney JA in Hibberson and George, which I set out earlier, a de facto relationship ends when one party decides he or she no longer wishes to live in the required degree of mutuality with the other but to live apart. It does not seem to me that it is necessary to communicate this intention to the other party provided that the party that is desirous of ending the relationship acts on his or her decision.”
The respondent gave evidence that he told the applicant on the morning of 9 February 2009 “our relationship is not working”. It may well be that he did not form the intention to separate that day but was merely expressing unhappiness and dissatisfaction with the state of in the relationship.
I accept that the respondent said to the applicant on the morning of 10 February 2009: “I can’t live like this any more. I am leaving you, I am moving out of the house”. I appreciate that the applicant denied that he said these or similar words but his actions that day were entirely consistent with an intention to live separately from her after that time. The respondent deposed “At that time I formed the view that my relationship with [Ms Clisbey] was finished”. He was unshaken in this evidence.
As noted, the respondent said that he took two or three suitcases and two or three boxes of his belongings when he left the home on the morning of 10 February 2009. This assertion was corroborated by the evidence of Ms B, who deposed that he delivered two suitcases and two boxes to her home on about 14 February 2009.
After 10 February 2009 the respondent never again stayed overnight in the Sydney Suburb 2 property. He made three brief visits to the applicant at the premises in February 2009. The fact that he took no furniture from the premises is consistent with his contention that the parties divided the contents of their home in Sydney Suburb 1 on its sale.
After 26 February 2009 the respondent returned to the Sydney Suburb 2 property on 12 May 2009, to deliver a letter to the applicant, and on 12 September 2009 to give to her some belongings which had been stored at his Sydney Suburb 1 unit. On 12 May 2009 the applicant refused to allow the respondent entry into the house and later sent a text message which referred to his “unwelcome attempt to gain entry into my home”. On 12 September 2009 he delivered the applicant’s belongings and left the premises.
The respondent conceded that he retained strong feelings for the applicant after 10 February 2009. He admitted that he suggested that they attend counselling “as a pathway to getting back together under the same roof”. He said “I would have loved to get back together with her but there was no indication that it would have been successful.”
In my opinion the evidence established that the respondent harboured a wish to reconcile with the applicant but never abandoned his determination to live apart from her. The love and affection which he expressed in his text messages and letters did not negate his decision that he could not share a life with her, unless there were changes to the way in which they interacted with each other. The applicant never agreed to his suggestion that they attend counselling together, with a view to repairing the relationship.
On 21 June 2009 the respondent sent a text message which included the words “I would like to try again now”. The next day he sent a text message which included the words “I am not giving up on you”. The applicant gave no evidence that she responded to either of these messages.
In my view the respondent’s text messages of 21 and 22 June 2009 indicate no more than a willingness on his part to try to resurrect the relationship. There was no indication that the applicant reciprocated this desire. Nothing in the evidence suggested that the respondent abandoned his decision to live separately from the applicant and, certainly, there was no resumption of cohabitation.
It was the applicant’s clear evidence that she decided to end the relationship on 3 March 2009, when she sent a text message indicating her belief that the respondent suffered from a narcissistic personality disorder. It thus seems to me that there is a fundamental flaw in her contention that the relationship subsisted until June 2009.
I attach no significance to the fact that the respondent continued to pay the rental on the Sydney Suburb 2 property or to his enquiries about the applicant’s share trading after 10 February 2009. I found convincing his explanation for payment of the rent on the Sydney Suburb 2 property until August 2009. He said that the applicant could not afford to pay rent of $600 per week on her salary of $800 per week.
The respondent claimed that he expected that the applicant would purchase a home and that he continued to pay the rent on the Sydney Suburb 2 premises so that she could locate a suitable property. He said that he wanted the applicant to have the security of owning her own home but realised in about May 2009 that she did not intend to purchase a property. He then gave notice to the real estate agent and stopped paying the rent in August 2009.
The respondent conceded that he advised the applicant to take up a share option while he was overseas from 27 February 2009. He also conceded that he asked to access her ComSec account in June 2009 so that he could dispose of non-performing stock. These enquiries hardly indicate a resumption of the relationship.
As noted, there are similarities in the facts of Hibberson v George and the present proceedings. In that case one partner moved out of the parties’ jointly occupied home in order to consider the future of the relationship. The parties had various discussions in which they both indicated a willingness to reconcile but ultimately, they did not resume a life together. In the present case, there was no evidence that the applicant indicated to the respondent a desire for him to return to the Sydney Suburb 2 premises at any time after 10 February 2009.
In summary, I find that the respondent formed the intention to live separately from the applicant on 10 February 2009. It is immaterial that he harboured strong feelings for her after that date and expressed love and a wish to resume the relationship at times.
I find that the respondent took actions which clearly demonstrated that he decided to live separately from the applicant on 10 February 2009. He packed his belongings and moved out of their jointly occupied premises. I accept his evidence that he previously slept in a spare bedroom after arguments between the parties but never before moved out of their home. There was no evidence that he had previously taken his belongs and left any premises jointly occupied by the parties.
I find that the respondent communicated his intention to end the relationship to the applicant and other people. I accept his evidence that he said to her on the morning of 10 February 2009: “I can’t live like this any more. I am leaving you, I am moving out of the house”. The evidence of Ms B, Mr K and Ms R Viges was unshaken. I find that the respondent communicated to all of them that his relationship with the applicant was over and that he had separated from her.

Conclusion

I thus find that the parties were not in a de facto relationship on 1 March 2009. Accordingly, the court lacks jurisdiction to entertain the applicant’s application, which must be dismissed.

I certify that the preceding seventy one (71) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 8 August 2011.

Associate:

Date: 8 August 2011