Ettridge & Somers

FAMILY COURT OF AUSTRALIA

ETTRIDGE & SOMERS

[2017] FamCA 1173

FAMILY LAW – DE FACTO RELATIONSHIPS – where the applicant seeks a declaration pursuant to section 90RD of the Family Law Act 1975 (Cth) – where the applicant alleges the parties were in a de facto relationship for 8 years – where the respondent denies the existence of a de facto relationship – declaration made that a de facto relationship existed between the applicant and the respondent for the period from January 2007 until 2 January 2015.

Family Law Act 1975 (Cth) ss 4AA, 90RD, 90SM Evidence Act 1995 (Cth) ss 128, 140
APPLICANT:	Ms Ettridge

RESPONDENT:

Mr Somers

FILE NUMBER:

MLC

11262

2015

DATE DELIVERED:

15 September 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Thornton J

HEARING DATE:

29, 30 & 31 May and 1 & 2 June 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Sweeney

SOLICITOR FOR THE APPLICANT:

Carew Counsel

THE RESPONDENT:

In person

Orders

That pursuant to s 90RD of the Family Law Act 1975 (Cth) it is declared that a de facto relationship existed between the applicant and the respondent for the period from January 2007 until 2 January 2015 with the exception of one month between January and February 2008.
That paragraph 1 of the respondent’s Further Amended Response to Initiating Application filed 7 December 2016 be dismissed.
That all extant applications be adjourned to the Docket Registrar for the making of all orders and directions to prepare the matter for trial.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ettridge & Somers has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11262 of 2015

Ms Ettridge

Applicant

And

Mr Somers

Respondent

REASONS FOR JUDGMENT

Introduction

The applicant brings an Application pursuant to s 90RD of the Family Law Act 1975 (Cth) (“the Act”) seeking a declaration that the parties were in a de facto relationship as defined by s 4AA of the Act from January 2007 until 2 January 2015. She also seeks that the respondent’s Response be dismissed.
The respondent denies that the parties were ever in a de facto relationship. He seeks a declaration that a de facto relationship did not exist between the parties from January 2007 until 2 January 2015 and that the Application for a declaration be dismissed.
The trial was confined to the threshold issue as to whether the parties were in a de facto relationship between January 2007 and 2 January 2015. If a declaration is made that the parties were in a de facto relationship as defined by s 4AA of the Act, it is the intention of the applicant to pursue her Further Amended Initiating Application filed on 2 December 2016 seeking a property settlement after the breakdown of the de facto relationship pursuant to s 90SM of the Act.
The parties met on an internet dating site in late September or early October 2006 and began a sexual relationship which on the applicant’s case continued until separation on 2 January 2015. The applicant’s case is that the parties lived together in a relationship as a couple on a genuine domestic basis. The respondent’s case is that the sexual relationship concluded in November 2006 and that the parties have never lived together in a relationship as a couple on a genuine domestic basis. It is his case that the applicant agreed to a friendship and working/business relationship which began in December 2006 and that he was required to care for the applicant after she was discharged from hospital after a serious accident which occurred in January 2009.
There are no children of the relationship and the relationship was not registered under a prescribed law of a State or Territory as a prescribed kind of relationship.

The relevant law

Section 90RD of the Act provides for declarations about the existence of de facto relationships.
Section 90RD(1) of the Act provides:
(1)If:
(a)an application is made for an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL; and
(b)a claim is made, in support of the application, that a de facto relationship existed between the applicant and another person;
the court may, for the purposes of those proceedings (the primary proceedings), declare that a de facto relationship existed, or never existed, between those 2 persons.
Section 90RD(2) of the Act provides:
(2)A declaration under subsection (1) of the existence of a de facto relationship may also declare any or all of the following:
(a)the period, or periods, of the de facto relationship for the purposes of paragraph 90SB(a);
(b)whether there is a child of the de facto relationship;
(c)whether one of the parties to the de facto relationship made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c);
(d)when the de facto relationship ended;
(e)where each of the parties to the de facto relationship was ordinarily resident during the de facto relationship.
Section 4AA(1) of the Act defines the meaning of de facto relationship and provides:
(1)A person is in a de facto relationship with another person if:
(a)     the persons are not legally married to each other; and
(b)    the persons are not related by family (see subsection (6)); and
(c)    having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
In working out if persons have a relationship as a couple, the circumstances may include any or all of the circumstances as set out in s 4AA(2) of the Act.
Section 4AA(3) of the Act provides:
(3)No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
Section 4AA(4) of the Act provides:
(4)A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.

Evidence

The documents relied upon by each party are listed in Annexure A. Each of the parties and the following witnesses were cross-examined during the trial:
·Mr V;
·Ms W;
·Ms X;
·Mr Y; and
·Mr Z.
The applicant’s witnesses who were cross-examined were Mr V, Ms W and Ms X. The respondent’s witnesses who were cross-examined were Mr Y and Ms Z.

Standard of Proof

In determining the facts, I have applied s 140 of the Evidence Act 1995 (Cth), which is the civil standard of proof. Where I have made findings, I am satisfied that the facts have been proven on the balance of probabilities.

Evidence of the applicant

The applicant deposed to meeting the respondent via RSVP, an online dating website, and to having their first date on or about 6 October 2006 when they met at a hotel and had dinner at a restaurant afterwards.
The applicant deposed to living in Suburb AA in a property which she owned with her ex-husband when she first met the respondent.
She deposed that after dating the respondent for a couple of months that he asked her to move in and live with him in the Suburb C property which he owned. The applicant deposed to living with the respondent in a de facto relationship in January 2007 when she moved into the Suburb C property.
Responding to the respondent’s affidavit material, the applicant denied in her affidavit filed 28 April 2017 having a conversation with the applicant in December 2006 where they discussed the respondent not being comfortable to continue with an “intimate personal relationship” as he felt their “values were not aligned”. She also denied that in mid-January 2007 the parties had a long conversation where the applicant stated that she was “fine” with the parties “being friends” and that she was keen to continue a business relationship with the respondent.
She deposed that when she moved into the Suburb C property that she was employed as a Project Director at Company M in Suburb N where she was earning approximately $115,000 gross per annum.
The applicant deposed that the respondent had two housemates Mr BB and Mr CC living in the Suburb C property when she moved in. She deposed that there were two bedrooms downstairs which were occupied by each of the housemates and that she shared an upstairs bedroom with the respondent.
The applicant deposed that she paid the sum of approximately $600 per month to the respondent as her contribution towards payment of the utilities and the mortgage over the Suburb C property. She deposed to also buying groceries and household supplies for both of the parties each week.
The applicant deposed that both housemates had moved out of the Suburb C property at the request of the respondent by late 2007 because the parties wanted privacy and did not want to share the Suburb C property with anyone else.
The applicant deposed to having a sexual relationship with the respondent from the time that she moved into the Suburb C property and often having sex around six times per week. She deposed to this frequency changing over the course of the relationship especially after she had her accident in January 2009. She deposed to having difficulty engaging in sex because of three different frames on her leg for a period of around two and a half years. She deposed to having a personal intimate relationship with the respondent and a loving and affectionate relationship throughout the time that they lived together.
The applicant deposed to being the primary homemaker from the time that she moved in to the Suburb C property and gave the following examples of the domestic work that she performed:
·regularly cooking meals for both parties and for the majority of the relationship preparing on average three meals per day, six days per week;
·regularly cleaning the Suburb C property and the surrounds by dusting, vacuuming, mopping floors, cleaning the toilets and bathrooms;
·regularly washing the dishes and washing clothes;
·regularly mowing the lawns, tending to the gardens including weeding, pruning, watering and planting, maintaining the pool at times by clearing it of leaves and maintaining the chlorine and other chemical levels;
·grocery shopping weekly and ensuring the payment of all household bills and expenses;
·purchasing gifts for the respective families and friends on birthdays, at Christmas, for weddings, anniversaries and other special occasions; and
·being responsible for managing the household finances during the course of the relationship, having the Internet password for the respondent’s bank accounts and other online accounts. Being responsible for dealing with the insurer with respect to three insurance claims submitted over the course of the relationship including a claim related to a burglary of the property in about March 2012.[1]
[1] Affidavit of applicant filed 20 May 2016, par 38.
She conceded that she did not do all of those things when she moved to the Suburb O property and that the Traffic Accident Commission (“TAC”) provided a cleaner after her accident.
The applicant deposed in her affidavit filed 20 May 2016 (“trial affidavit”) that in November 2007 she personally guaranteed a $100,000 line of credit in the respondent’s name. She deposed that the funds were “initially used by [the respondent] to revamp his business… and to pay subcontractors in advance of payment by clients for whom they were performing services”.
The applicant deposed that she had an argument with the respondent in or about December 2007 and that the parties temporarily separated. She deposed that she moved out of the Suburb C property on 4 January 2008 and rented a unit in Suburb O. She deposed to reconciling with the respondent by late January/early February 2008 and resuming the personal intimate relationship. She deposed to the respondent regularly staying overnight with her at the Suburb O property (on average six or seven nights per week) and to the respondent keeping a number of personal effects and belongings at the Suburb O property including clothing. She deposed to continuing to be in a romantic relationship together and sleeping in the same bed and having sexual relations with each other. She deposed to cooking for him each night and buying groceries and household supplies at the Suburb O property whilst the respondent used the Suburb C property primarily as his office for his business during this period.
She deposed that during the time she was at the Suburb O property, the respondent regularly stayed there and only returned to the Suburb C property for work. She deposed that she understood that during this time the respondent claimed “100% of the utility costs for the Suburb C property as a tax deduction, as such expenses were all work-related”.[2]
[2] Affidavit of the applicant filed 28 April 2017, par 14.
The applicant deposed in her trial affidavit that in or about April 2008 she was retrenched from Company M and received a redundancy payment of approximately $38,000. She deposed that she applied her payment towards the “general living expenses” of the parties “including paying of bills, payment of expenses of K Pty Ltd, weekends away for [the respondent] and I, and a holiday for both [the respondent] and I in New Zealand”. K Pty Ltd (“KPL”) being the business of the respondent.
The applicant deposed in her trial affidavit that in or about April 2008 she received $115,000 from the sale of proceeds from the Suburb AA property. She deposed she applied the funds as follows:
·Deposited the sum of $79,000 into the line of credit in the joint names of the parties to reduce the balance owed and the parties agreed that the payment constituted an investment in the Suburb C property but it was “agreed that the funds were applied to the line of credit as it had the higher rate of interest”.
·The balance towards the “general living expenses” of the parties including bills and some expenses of the respondent’s business and on weekend trips of the applicant and respondent.
The applicant deposed in her trial affidavit that when she became redundant the respondent suggested she work for KPL, as a contractor and she agreed and commenced the role in about June 2008.
She confirmed that she commenced work on a contract for the respondent’s business in about June 2008 and also helped to prepare financial statements in May 2008 however she received no payment for this task.[3] She deposed that from this time she “performed basis bookkeeping and administrative tasks for [the respondent’s] business”.[4] She deposed that she was also not paid for these tasks. She deposed that the respondent prepared his own personal income tax returns and the trust returns for the business. She deposed that she was also responsible for managing the household bills and ensuring that there was sufficient money “in our everyday account for use.”
[3] Ibid at 15.
[4] Ibid.
The applicant deposed to earning $10,000 in fees by facilitating two courses for Company M which she contracted through the respondent’s business. She deposed that the fees were paid to KPL and retained by the respondent.
The applicant deposed in her trial affidavit that throughout the relationship the respondent continued to operate KPL but did not derive significant income from the business. She went on to depose that for the majority of the relationship, the parties lived off her TAC payments that she received from 2009 to 2014.
The applicant deposed that on 12 January 2009 she moved back into the Suburb C property and both parties sold many items of furniture which were duplicated and items such as a washing machine, clothes dryer, lounge suite and bookcases and refrigerator. The applicant deposed that she also sold her sedan motor vehicle at that time and commenced using the respondent’s 4WD motor vehicle which was registered in his sole name from that point onwards during the course of the relationship.
The applicant deposed in her trial affidavit that on 18 January 2009 she was hit (as a pedestrian) by a car while returning from a trip to Town DD with the respondent. She deposed that she was in hospital for 9 weeks and immediately after the accident the respondent visited her 2-3 times a week and they talked on the phone daily.
The applicant deposed in her trial affidavit that following hospitalisation she returned to the Suburb C property on or about 19 March 2009 where she stayed until separation on 2 January 2015. The applicant described a long recovery from the surgery and deposed that her last surgery was in or about December 2012.
The applicant denied that the respondent had to care for her after her accident as she had no alternative care arrangements. She conceded that after her accident the respondent told her he wanted to the end the relationship and he travelled around Tasmania, but that they reconciled immediately after his return. She deposed that during the time he was away her parents discussed moving to Melbourne to assist her however this plan was abandoned after the parties reconciled. [5]
[5] Affidavit of the applicant filed 28 April 2017, par 21.
The applicant deposed that after her accident she “resumed looking after our household finances…and assisting with administration type tasks for [the respondent’s] business”.[6]
[6] Ibid at 23.
She deposed that after her accident she continued to perform contracting work for the business “intermittently throughout the remainder of our relationship” including sourcing a “high-value contract” through her brother with Company EE in 2012.
In response to the respondent’s allegations that the applicant refused to consider any proposal that she leave the Suburb C property, she deposed in paragraph 24 of her affidavit filed 28 April 2017 that it was incorrect to state that she was unwilling to leave and to “infer that is the reason I was there”. She deposed that the property was her home.
The applicant deposed in her trial affidavit that she commenced receiving funds from TAC in 2009 and from 2009-2012 she received $178,831 from TAC. She deposed that the funds were deposited into her personal account however the majority of the funds were transferred into the joint line of credit, and “applied towards payment of the mortgage secured over the Suburb C property, reducing debt owed on the line of credit and our general living expenses including but not limited to utilities, groceries and the like”.[7]
[7] Affidavit of applicant filed 20 May 2016, par 59.
The applicant deposed in her trial affidavit that in May 2009 the parties established their own self-managed superannuation fund. She deposed that it was the respondent’s suggestion that the parties “set up our own self managed super fund and that we each roll over our industry fund interests into this self managed fund”. She deposed that the respondent purchased the trust deed template, the parties set up bank account and registered the fund and “then we made decisions as to how to invest the money”.
The applicant deposed in her trial affidavit that in 2010 that she received $3,000 from her grandmother which she applied towards replacing the hot water system at the Suburb C property. She deposed that she also received an inheritance from her grandmother in 2013 in the sum of $15,000 which she applied to the living expenses of the parties.

The applicant deposed in her trial affidavit that in March 2014 she was gifted $1,500 from her parents which she applied towards general living expenses.
The applicant deposed in her trial affidavit that in April 2014 she received a final TAC payment which amounted to $672,000 which was in addition to previous TAC payments she had received. She deposed that she applied the funds as follows:
·    $100,000 towards paying off the line of credit which was reduced to nil;
·    approximately $164,000 towards reducing the mortgage secured over the Suburb C property in the name of the respondent, so that the balance owed then amounted to approximately $67; and
·    the payment of general living expenses.
The applicant deposed in her trial affidavit that in or about May 2014 the parties discussed buying a business together as they now “had money to do so (i.e. [the applicant’s] TAC payment”. She deposed that the parties considered a number of motels and were very interested in purchasing a motel in Town FF. She deposed that they made a “number of trips to this location so as to scout around for houses for sale in the area and research other motels in the area”. Ultimately she deposed that they did not purchase the motel as it was purchased for a higher price.
The applicant deposed in her trial affidavit to the physical work she carried out on the Suburb C property, including but not limited to:
·    painting the dining room, laundry and upstairs bathroom in 2008;
·    painting most of the interior of the Suburb C property over the next few years;
·    in or about 2012/2013 removing and replacing the vanity in the downstairs bathroom and completing all the plumbing work herself;
·    in or about 2013 painting the beams in the sunroom; and
·    in or about 2013/2014 sanding and painting all the kitchen cupboards and drawers.
The applicant also deposed in her trial affidavit to undertaking renovation works with the respondent at the Suburb C property in July 2014. She described in detail the tasks she physically undertook. She deposed that the costs of the renovation, including materials and labour amounted to approximately $35,000 which the parties funded from her TAC payments.
The applicant deposed in her trial affidavit at paragraph 70:
I would not have applied the TAC payments that I received from 2009 to 2014, towards paying the line of credit in [the respondent’s] name, reducing the mortgage balance secured over the Suburb C property in the [respondent’s] name, the renovations costs of the Suburb C property, or paying our general living expenses, had I not believed that [the respondent] and I were in a de facto relationship together and that we had a mutual commitment to a shared life together.
The applicant deposed in her trial affidavit to the reputation and public aspect of her relationship with the respondent. She deposed that from the time the parties commenced cohabitation, they attended various family and social events/occasions as a couple. She deposed that they also hosted “many such events together as a couple at the Suburb C property”. The applicant deposed to a number of specific events that the parties attended which included the birthdays of family members, Christmas and other events. She also described a number of events that the parties hosted at the Suburb C property.
The applicant deposed in her trial affidavit that the respondent met her parents and immediate family and spent time with them on a number of occasions. She deposed in particular to her parents visiting Melbourne during the course of the relationship and having meals with them and hosting them at the Suburb C property. Further she deposed to the applicant and respondent visiting her parents’ home in Queensland to celebrate her brother’s 40^th birthday.
The applicant also deposed in her trial affidavit that the parties attended weddings together as a couple and that she hosted a number of birthday parties for the respondent.
The applicant deposed in detail to sharing a number of holidays with the respondent where they shared a room and the same bed. In her affidavit she described nine different holidays between 2008 and July 2014, including one overseas trip to New Zealand in 2008. The applicant in her affidavit filed 28 September 2016 responding to the respondent denied that when the parties travelled together they travelled for business purposes. She deposed that:
…we always travelled together as a de facto couple and not for business purposes, as we shared the same room throughout these stays and the holidays were all recreational in nature or were aimed at looking for properties to move to together… and other opportunities such as buying a hotel together…[8]
[8] Affidavit of the applicant filed 28 September 2016, par 20.
The applicant in her trial affidavit deposed to and annexed copies of various emails and text messages sent to her by the respondent. In particular the respondent sent her the following email on 2 February 2015:
…I don’t care about the legal fact that we were in a relationship… (Original emphasis)
She annexed a copy of a text message from the respondent on 22 February 2015 which stated:
We’ll [sic] [Ms Ettridge] nee V, being the communicator out of the two of us, I am going to tell you that I want kids and families and I feel young. Maybe all the He’ll [sic] you have put me through has made me realise that. You and I are a great team in many ways. Christmas went like clockwork and so does super. You know, if you could get rid off [sic] road rage your nasty streak, you would be a good mum…
She deposed to and annexed a text message sent by the respondent to her on 2 March 2015:
And I can still say I love you with ease and sincerity which is something beyond you comprehension
She deposed to and annexed a text message sent by the respondent to her on 17 March 2015:
…We are both very hurt at the moment and both of us are responsible. It would not hurt if we did not love each other.
Another text message from the respondent to the applicant read “…You don’t even know how to ask for sex”.
The respondent did not dispute that he sent these emails to the applicant.
The applicant deposed at paragraph 81 of her trial affidavit to various Facebook entries that the respondent and his family members posted which she asserted evidenced the fact that the parties were in a de facto relationship. She adduced in evidence a copy of a Facebook post from the respondent’s sister Ms Z who posted on her Facebook on 1 January 2014 “I had a lovely New Year’s Eve at my brother and sister in law’s with [the respondent], [the applicant]…”.[9]
[9] Affidavit of the applicant filed 20 May 2016, Annexure TE-13.
The applicant deposed and annexed supporting evidence at paragraph 82 of her trial affidavit that on 25 March 2009 the respondent made a binding nomination nominating her as the beneficiary of his benefits under the parties’ self-managed superannuation fund and in the same document referred to her as his “De Facto Partner”.
The applicant deposed and annexed supporting evidence in her trial affidavit that in March 2010 the respondent made a complaint against a member of Victoria Police and in the complaint to the Office of Police Integrity, the respondent referred to her as his “partner”.
The applicant deposed and annexed supporting evidence in her trial affidavit that the respondent listed her as his de facto spouse in his tax returns for the 2013 and 2014 financial years.
Responding to the respondent’s affidavit, the applicant denied that from January 2008 to December 2008 the parties “maintained separate residences at all times and that if we did stay over at the other’s residence, it was only because we were working late and/or that [the respondent] would sleep on the couch or in a separate room at the Suburb O residence”.[10]
[10] Affidavit of the applicant filed 28 September 2016, par 21.
The applicant conceded that when the parties would argue that the respondent would “often state that business relationships and personal relationships do not work”.[11] She deposed that during these arguments the respondent would “often demand that I choose which relationship I wanted (personal or business), however such discussions were had during the course of arguments and amounted to nothing”.[12] She deposed that the parties would continue with their de facto relationship after such arguments.
[11] Affidavit of the applicant filed 28 April 2017, par 20.
[12] Affidavit of the applicant filed 28 April 2017, par 20.
In response to the respondent’s affidavit where he deposed that the applicant invested in his business in 2008, she deposed:
Throughout the course of the relationship, I applied monies from the sale of my Suburb AA property and my TAC payments, in order to reduce the mortgage loan secured over the Suburb C property, the meet general living expenses of [the respondent] and I and the costs to improve and renovate the Suburb C property. It is incorrect for [the respondent] to claim that such monies were an investment by me in his business.[13]
[13] Ibid at 18.
In response to the respondent deposing that the parties maintained their own financial arrangements, the applicant deposed that throughout the course of their relationship the parties operated joint accounts together and referred to the line of credit and the self-managed superannuation fund.[14] She also referred to contributing significant funds towards the Suburb C property through the proceeds of sale of the Suburb AA property and her TAC payments.[15]
[14] Ibid at 27.
[15] Ibid.
The applicant annexed emails she deposed were sent by the respondent to her, dated 15 October 2009 where the respondent sent her links to pornography.[16]
[16] Ibid at Annexure TE-1.
In her affidavit filed 28 April 2017, the applicant responded to the affidavits of the respondent’s witnesses.
The applicant agreed that she met Ms Z, the respondent’s sister, in or about June 2007. She deposed that it is untrue for Ms Z to claim that she only knew the applicant as the respondent’s friend and business partner. She deposed at paragraph 43 that she was initially introduced to Ms Z by the respondent as his girlfriend and deposed that during the relationship Ms Z referred to her as her sister-in law. The applicant referred to the Facebook post discussed previously in which Ms Z referred to her as “sister-in-law”. The applicant went on to depose to a number of family events and functions that she attended with the respondent as a couple, many of which were attended by Ms Z and her family.
In relation to the affidavit of Mr Z, the husband of Ms Z, the applicant reiterated her previous affidavit and deposed that she attended numerous family events and functions with both Ms Z and Mr Z.
In response to Mr GG’s affidavit evidence, she agreed she met Mr GG in or about 2007 but deposed she was introduced to him as the respondent’s girlfriend, not a member of the respondent’s business. She deposed that to her knowledge the respondent and Mr GG were estranged at times throughout her relationship with the respondent and from January 2007 to 2012 they did not frequently socialise together and they rekindled their friendship from 2012.[17]
[17] Affidavit of the applicant filed 28 April 2017, par 56.
In response to Mr Y’s affidavit, she deposed that Mr Y did not frequently visit the Suburb C property during the course of her relationship with the respondent. She agreed that they initially met in or about late 2006. She denied saying to Mr Y in 2008 while having coffee that she and the respondent were not in a relationship. She conceded that she:
…may have said that we had split up if our encounter occurred at a time where [the respondent] and I had an argument and [the respondent] had announced that he had “ended” the relationship, which he often did when we argued, (but he never meant it, as within days, everything was back to normal).[18]
[18] Ibid at 65.
She deposed to a number of occasions where she and the respondent attended as a couple and Mr Y was present. This included Mr Y’s birthday in 2008.[19]
[19] Ibid at 69.
In response to the affidavit of Ms HH, she agreed that she met Ms HH in November 2007. She denied that when Ms HH was introduced to her that the respondent said that he and the applicant were not together.

Cross-examination of the applicant

The respondent put many questions to the applicant about her involvement in his business and suggested that she worked very hard in the business. He suggested that between 2006 and 2009 that she worked extremely well and was a good support person. The applicant agreed that she had assisted the respondent with his financial statements and that she had performed the role of a bookkeeper in respect of the business and the respondent’s personal financial affairs. She denied that she had performed the role of an accountant for the business, but acknowledged that she had met with the accountant for the business at the request of the respondent. She maintained that she did not have the skill set of an accountant and that she had not worked as an accountant since 1995. She maintained that she was not confident that she could give that level of advice because she had not kept up with the legislation and she could not give advice as a certified practising accountant and that she had been clear about this.
In cross-examination the applicant was clear in her responses that she had never invested any money into the business whatsoever but that she had invested in the Suburb C property because she had no interest in investing in the business as there was not much to invest in “monetarily.”
In cross-examination the applicant was not shaken in her evidence that she was in a de facto relationship with the respondent from January 2007 when she moved into his property at Suburb C until the parties briefly separated in early January 2008 when she rented a property in Suburb O. She was unshaken in her evidence that the relationship continued whilst she was living at Suburb O and that the respondent’s property at Suburb C was utilised for the respondent’s business. She did not agree with the proposition of the respondent that the reason for her returning to live at Suburb C with him was to reduce her overheads and to make a 12 month commitment to work in the business. She stated that “we were already back together but we were running two households and [the Suburb C property] was claimed as an office – if we moved to [the Suburb C property] we would have only one car and we sold duplicate items.” She stated that the move had nothing to do with the business and it was personal.
In cross-examination she conceded that the respondent had never had any access to her personal bank account but maintained that he did know about her financial situation because they had discussed a financial settlement which she had made with her ex-husband. She stated that in mid November 2008 that the respondent was aware that she had a Westpac credit card and a member number but no accounts at F BANK.
It was repeatedly put to the applicant that the respondent had told her on many occasions that he felt uncomfortable about continuing a sexual relationship because he did not mix business and that there was “no coupledom.” The applicant acknowledged that this had been said on a number of occasions and usually during arguments. When cross-examined about repeatedly being asked to leave the property around 2011, the applicant agreed but stated that every time they had an argument that the respondent told her to get out and stand on her own two feet.
The applicant denied that she sexually harassed people. In response to the question about whether the respondent frequently told her that her behaviour was inappropriate, the applicant agreed that he had said this but stated that his actions did not reflect it.
Throughout the cross-examination the applicant maintained that the parties had lived together as a couple and that what she had deposed was correct and accurate. She acknowledged that the relationship had been “quite turbulent”.
It was put to the applicant that she didn’t know the respondent very well because his date of birth was wrong in her affidavit material. The applicant agreed that it was a mistake and that the date was wrong.
When questioned about why she would have informed the respondent of her redundancy payment, the applicant was firm in her evidence that she told him the amount of the redundancy payment because they were in a relationship.
The applicant agreed that there was a conversation with the respondent during which he suggested that she become a director of KPL.
The applicant maintained that the respondent suggested she sell the Suburb AA property.
The applicant maintained that she contributed approximately $164,000-$168,000 of her final TAC payment towards the mortgage on the Suburb C.
The applicant denied the proposition of the respondent that the parties never discussed her personal life and never had counselling together.
The applicant was questioned about a meeting between the applicant and respondent in early January 2007 where the applicant allegedly stated “we can just be friends if you want”. The evidence of the applicant was that this statement did not occur during that time period.
The applicant accepted that occasionally in 2007 she was living in the Suburb AA property and travelling to her place of employment in Suburb N.

Evidence of Mr V

The applicant’s father, Mr V, deposed that he first met the respondent in or about October 2007 when the applicant and respondent stayed at his residence in Queensland. He deposed that he had previously heard about the respondent during phone conversations with the applicant. He deposed that the applicant and respondent stayed with him and his family for a period of approximately four days. He deposed that they “shared a double bed in the guest room of my residence throughout their stay”.
Mr V deposed that prior to the trip to Queensland the applicant phoned him and said words to the effect of “Dad, [the respondent] and I have been living together for over six months now, and it is time we all met”.
Mr V deposed that due to the applicant introducing the respondent to him and his wife, and “the fact they shared a bed together throughout their stay at my residence, and their general interactions with each other which including linking arms while they talked and rolling cigarettes for each other” he never had any doubt they were in an “intimate relationship together”.
Mr V deposed that between October 2007 and January 2015 he travelled to Melbourne to spend time with the applicant on many occasions. He deposed that the respondent was a “constant presence throughout my stays leaving me to believe that he and [the applicant] were living together in a de facto relationship with each other over this period”.
Mr V deposed that on or about 13 March 2008 he flew to Melbourne to stay with the applicant at the property in Suburb O until 18 March 2008. He described that during this trip the respondent visited the applicant at the Suburb O property for dinner.
Mr V deposed that on 17 March 2009 he travelled to Melbourne and he attended a meeting with his daughter and her surgeon. Mr V deposed that the respondent was present during the meeting.
Mr V deposed that in or about winter 2010 he and his wife were invited for lunch at the Suburb C property with the applicant and respondent and that “the four of us (including [the respondent]) enjoyed a long lunch together at the Suburb C property”.
Mr V deposed that on or about 19 August 2011 the applicant and respondent visited him and his wife at their house in Queensland for the 40^th birthday party of the applicant’s brother. He deposed that the applicant and respondent shared a double bed in the guest bedroom. He deposed that again during the trip the manner of the parties was that of a “comfortable intimacy”.
Mr V deposed that after May 2012 the applicant invited him and his wife to the Suburb C property for lunch. On this day, Mr V deposed to the applicant and respondent speaking about and showing him various repairs and renovation works being carried out on the Suburb C property. Mr V deposed that he also observed that while they were all in the kitchen before lunch he noticed the applicant “to be standing next to [the respondent] while talking and she often looked up at him with her right hand placed on his upper arm stroking it lightly as he spoke”.

Mr V deposed at paragraph 23:
Over the years, there were further trips by my wife and me to Melbourne to visit [the applicant], in which we encountered [the respondent] and had every reason to believe that [the applicant] and he continued to be in a de facto relationship together.
Mr V described in his affidavit a number of occasions he and his wife had meals with the applicant and respondent in Melbourne during visits. Mr V deposed that he and his wife had lunch with the applicant and respondent at a restaurant in Suburb KK on about three occasions, one of which occurred in September 2012. He deposed that as the parties “were living together at this time” and that the respondent accompanied the applicant, he “assumed they continued to be in a de facto relationship at this time”. Mr V also deposed that the parties and he and his wife also had two lunches at another restaurant in Suburb KK, one of which occurred in June 2010. Mr V went on to depose that in September 2013 he travelled to Melbourne with his wife and he had a meal with the applicant and respondent at a pub in Suburb LL. On this occasion he recalled the respondent driving him and his wife to the pub and back to their hotel. Mr V also deposed to eating at a Chinese restaurant in Suburb KK with his wife and the applicant and respondent in June 2014. Mr V produced credit card statements for four of the meals noting entries from the various venues.
Mr V deposed that:
Over the years, and during periods that I spent time with [the applicant] and the [the respondent] in Melbourne, I observed that [the respondent] had a habit of turning frequently to [the applicant], tilting his head down as he did so and she often looked up at him and stroked his arm. It was also noticeable over the years that they frequently rolled cigarettes for each other.
Mr V deposed that on or about 5 January 2015 the applicant telephoned him and told him that her relationship with the respondent was over.
In cross-examination he agreed that the applicant had not spoken to him about being in a relationship before he met the respondent for the first time. He absolutely denied having any discussion with the respondent about who should take care of the applicant soon after her accident in January 2009.

Evidence of Ms W

Counsellor Psychotherapist Ms W deposed that she has known the applicant in a professional capacity since 15 October 2008 when she and the respondent came to see her for “one session of couples counselling on that date”.
She went on to depose that at the time she had “one on one Couples counselling” with them and that she “understood they were both in a relationship together”.
Ms W agreed that the respondent only attended one session with her on 15 October 2008. She agreed that she had deposed that a comment on the form completed by the respondent noted that what he wanted from the session was “better communication and understanding with [the applicant]”. She agreed that she believed that the comment was to do with a personal relationship.
In cross-examination Ms W maintained that the type of relationship in which she understood the parties to be engaged was a “de facto relationship” or “a couple” when they attended on 15 October 2008.
When it was put to her that the purpose of the session was “to do with communication problems in the business”, she responded “That is all new to me”.
The applicant in cross-examination denied that Ms W was a personal friend and stated that “any time I spend with her I pay for. The first time I met her was with [the respondent] in couples counselling before my accident.”

Evidence of Ms X

Mrs Ms X is a friend of the applicant who deposed that she has known the applicant since about September 2002 when the applicant started working at Company M, where Mrs X was also employed.
In her affidavit, she deposed that she met the respondent in or about late 2007 at the applicant’s house in Suburb AA North and the applicant introduced the respondent as her boyfriend. In cross-examination, Mrs X stated that she could not remember if it was 2006 or 2007 but conceded that it was 2006 when this was suggested by the respondent.
At paragraph 8 of her affidavit, Mrs X deposed that over the years since she first met the applicant and then the respondent and up until early 2015:
…we have all socialised together frequently. There have been occasions where just [the applicant] and I alone have socialised and there have also been many other occasions where [the respondent] has been present as [the applicant’s] boyfriend. I have observed that [the applicant] has never referred to [the respondent] as “a friend” or “business associate”. She has always referred to [the respondent] as her boyfriend/partner and she has always behaved as if she and [the respondent] were in a [sic] intimate de facto relationship with each other.
Mrs X stated that whenever she saw the applicant and respondent together there was “always some physical contact between them or mannerisms displayed by each of them that indicated they were in an intimate relationship together, not a business relationship”. She went on to give examples that the applicant would sit on the respondent’s lap and the respondent would rub the applicant’s back or that the applicant would rub the respondent’s leg.
Mrs X provided examples of when she and the applicant and respondent socialised together. These included:
·In September 2008 the applicant invited Mrs X and a mutual friend to the property in Suburb O and they attended to celebrate the applicant’s birthday and the respondent was present;
·In about late 2008 Mrs X, her husband, a mutual friend and their partner were invited and attended the Suburb C property to celebrate the respondent’s birthday;
·In about 2010 the applicant and respondent accompanied Mrs X and her husband to a fancy dress party at the JJ Club;
·The applicant and respondent accompanied Mrs X and her husband to her husband’s 50^th birthday party at JJ Club;
·In about 2012 the applicant and respondent invited Mrs X and her husband to two dinner parties at the Suburb C property and they attended with two other friends and the applicant and respondent hosted them;
·In about 2013 Mrs X, her husband and a mutual friend were all invited and attended the Suburb C property and the applicant and respondent were present;
·In about 2013 Mrs X hosted a dinner at her house and the applicant and respondent attended;
·On or about 31 December 2013 Mrs X hosted a New Year’s Eve party at her house and the applicant and respondent attended together;
·In 2014 Mrs X hosted a dinner party at her house with her husband and the applicant and respondent attended – however by the time the applicant and respondent attended she had gone to bed with a migraine.
Mrs X deposed that she and her husband attended many functions at the JJ Club and at one function prior to the applicant’s accident, she recalled that the applicant left early after a fight between herself and the respondent. She deposed that she observed that the respondent became angry when the applicant was dancing with a friend and that he “physically grabbed” the applicant.
Mrs X also deposed that she attended the Suburb C property to visit the applicant on an “informal basis” on a number of occasions over the years.
Mrs X deposed that:
From knowing [the applicant] over the years and from all my interactions with [the applicant] and [the respondent], I have no doubt that they were in an intimate de facto relationship together from 2007 through 2 [sic] to January 2015.[20]
[20] Affidavit of Ms X filed 15 December 2016, par 19.
She deposed that to the best of her knowledge the relationship ended on 2 January 2015 when the applicant informed her that the relationship was over. She deposed that one week later she accompanied the applicant to the Suburb C property with Police to collect the applicant’s personal items from the house. She deposed that the respondent “was present at the time outside of the property and he appeared in an agitated, angry and completely irrational state at the sight of [the applicant] and the Police”.
Further Mrs X deposed that the applicant stayed with her for the next three and half months until she found her own accommodation and that during this time she read messages that the respondent sent the applicant. She deposed that “In a few messages, he encouraged her to see him in person including asking her to have dinner with him. He even offered to go to counselling in one of the text messages”.
In cross-examination by the respondent, Mrs X confirmed that she socialised frequently with the parties. She denied that her evidence was a gross exaggeration. In response to questions in cross examination she stated that the respondent has been to her house at least three times, to JJ Club several times and that she had been to his place several times.
In cross-examination she maintained that the respondent physically grabbed the applicant at the JJ Club. She denied that she made it up.
The witness stated there was no doubt in her mind that they were a couple. She denied that it was ever suggested to her at any stage that it was purely a business relationship.
In response to questions in cross-examination Mrs X stated that the applicant talked to her about personal things including the parties’ sex life.

Evidence of the respondent

The respondent maintained that the parties had never been in a de facto relationship.
The respondent deposed that the parties met through an online dating website, RSVP, around late September 2006 and that his “immediate interest in the Applicant on the first night I met her was her Consulting experience with KPMG, her experience in small business and her desire to work for herself”.[21]
[21] Affidavit of the respondent filed 13 July 2016, par 5.
He deposed that by mid-January “it was clear to me that I did not wish to continue with an intimate personal relationship with the applicant”.[22] He deposed that the intimate relationship between the parties ended by early to mid-January 2007. He denied that the parties ever had sex six times a week and denied that he ever undressed freely in front of the applicant after her accident.
[22] Ibid at 7.
The respondent asserted that the applicant exaggerated her affidavit evidence about her income earning difficulties as a result of the accident. The respondent relied on Exhibit 1 which is a TAC Employment Agreement Form with a date of submission of 27 November 2011. This document identifies job roles as suitable for the applicant and appears to be a report completed by a vocational consultant from TAC on 19 July 2011. The document refers to discussions about a return to work and that “it has been decided that possibly the most effective and successful return to work outcome for [the applicant], is for her to work at home and on a part-time basis.”
He deposed that he “made it clear to the Applicant that whilst we could continue our business association; I was unwilling to be involved on an intimate level with her”.[23] He went on to describe the applicant as being fully accepting and confident in her statement that she was “happy to go with business only”. He described the parties continuing to develop their business relationship from the conclusion of their intimate relationship. He deposed that by mid-January 2007 the parties were in a business relationship and this included the applicant establishing accounting systems and structuring a debt facility secured over the Suburb C property.[24]
[23] Affidavit of the respondent filed 13 July 2016, par 8.
[24] Affidavit of the respondent filed 19 April 2017, par 11.
He deposed that between November and December 2006 they discussed “the fact that I was not comfortable to continue with an intimate personal relationship as I felt our values were not aligned”.[25] He went on to depose that in or around mid-January 2007 they had a long conversation at the Suburb C property and that the applicant “stated she was fine with us being friends and that she was very keen to continue to pursue a business relationship”.[26] He deposed that they were also friends outside of the business relationship.
[25] Ibid at 9(b).
[26] Ibid at 10.
The respondent went on to depose that the applicant continued to reside at her Suburb AA property but also visited Suburb C regularly. This part of his affidavit was under a heading of “January 2007 – January 2009.” He went on to depose that on occasion the applicant would stay overnight at the Suburb C property but they slept in separate rooms.
The respondent deposed that after the applicant sold the Suburb AA property in July or August 2007 she asked the respondent if she could stay at the Suburb C property if she was unable to secure suitable accommodation before settlement of the Suburb AA property. He deposed that he agreed that he would assist in the short term if necessary. He deposed that “the applicant did stay at Suburb C full time for the last few months of 2007, and when it came time for her to leave as we had agreed, she resisted”.[27] He deposed that at this point he realised the applicant “was not telling the truth”. This reference was unclear. He denied that he asked the applicant to move into the Suburb C property or that he suggested she sell the Suburb AA property.
[27] Affidavit of the respondent filed 13 July 2016, par 11.
The respondent deposed that during the time the applicant lived in Suburb O from December 2007 to December 2008 the applicant continued to work for him on a casual basis and a formal employment contract was entered into in June 2008. He deposed that during this time the applicant “occasionally sought to engage with me on an intimate level but I refused and pointed out on each occasion that I did not want to engage in an intimate relationship with a business colleague”.[28]
[28] Affidavit of the respondent filed 13 July 2016, par 12.
During the time that the applicant was living at the Suburb O property the respondent maintained that the parties had separate residences and that he had dinner around six times at most at the Suburb O property. He conceded that he stayed over after working late but deposed that he either slept on the couch or in the spare room. He deposed that he “constantly made it clear to the applicant that despite her wishes I would not be pursuing an intimate relationship”. [29] He denied keeping a wardrobe or personal belongings at the Suburb O property.
[29] Ibid at 13.
He annexed an email he sent to the applicant on 9 May 2008 in which he wrote “Business and personal do not mix… you have put yourself first and chosen business it seems to me. I think that is healthy”. In response to that the applicant emailed the respondent stating amongst other things “I have not chosen business over personal... You chose business only. You did not give me a choice of business or personal”. In a third email sent to the applicant he stated “If you are not here for business reasons – then I suggest we part ways now” and further “O.K you chose personal. Its [sic] not an option because I don’t mix them”.[30]
[30] Ibid at Annexure IRS-2.
He deposed that in the first half of 2008 the applicant worked predominantly from Suburb O, but would attend the Suburb C property for meetings when required. He deposed that as she was producing some “irrelevant work” he suggested she needed more supervision and asked her to travel to Suburb C to work more often and she agreed.[31]
[31] Ibid at 28.
The respondent deposed that “during this period” the parties maintained their own financial arrangements “not with-standing that the applicant had full access to my financial records and those of the business as she was acting as the Companies Accountant”.[32]
[32] Ibid at 14.
The respondent conceded that the applicant travelled with him to New Zealand in 2008 as a “reward for successfully gaining her accreditation” and denied there was an intimate personal relationship.[33]
[33] Affidavit of the respondent filed 19 April 2017, par 22.
The respondent deposed that in October 2008 it was agreed between the parties that the applicant would buy into the business because she wished to reduce unnecessary overheads including rental expenses. He deposed that he moved into the downstairs bedroom and deposed that between Christmas and New Year of that year the applicant “re-located partly to Suburb C but stored most of her items elsewhere”.[34] He deposed that during this time she lived in the upstairs bedroom and he occupied a downstairs bedroom.
[34] Affidavit of the respondent filed 13 July 2016, par 15.
In relation to the applicant’s accident, he deposed that the applicant sought his assistance after the accident and he provided support to her as “it was clear that there was nobody else available to her”.[35] He deposed that her family reside in Queensland and that she has no close friends in Melbourne. He deposed that in or about March 2009 the applicant returned to Suburb C but that she was “effectively living on the couch, as it was the only place she could get herself comfortable”.[36] He deposed that she later moved into a separate office setup downstairs in late 2009.
[35] Ibid at 17.
[36] Ibid.
The respondent deposed that in the months following her return to Suburb C he tried to discuss with her alternative care arrangements but that she reacted “severely” to any suggestion he made.
The respondent deposed to a number of things he did to support the applicant during her recovery.[37] He deposed that she was fully recovered in 2012 and he continued to assist her in her rehabilitation joining her in hiking, walking, cycling and gym activities. He deposed that after her recovery he made a “number of attempts to assist her to resume a normal lifestyle”.[38] He deposed that he invited the applicant on trips to Sydney to get her “out of the office and the property and back into the world”.[39] He maintained that this was not done in the context of an intimate relationship as the parties had abandoned the relationship many years earlier. He later admitted to travelling occasionally with the applicant but denied they travelled as a de facto couple.
[37] Ibid at 19.
[38] Ibid at 22.
[39] Ibid at 23.
The respondent admitted that the parties “almost had sex in 2009 after her second frame came off her right leg”.[40]
[40] Affidavit of the respondent filed 18 October 2016, par 31.
In relation to financial matters, the respondent deposed that the applicant offered to guarantee a line of credit for his business which was “a demonstration of her commitment to joining KPL”.[41] He deposed that it was also intended that the applicant would work for KPL and in June 2008 she signed a contract with KPL and agreed to be an independent contractor.
[41] Affidavit of the respondent filed 13 July 2016, par 25.
He went on to depose that in 2008 he had a number of discussions with the applicant about her taking equity in the business. He deposed that in November 2008 the applicant transferred $80,250 to the KPL trust accounts in order to buy into the business.
He maintained that any direct financial contribution the applicant made towards the Suburb C property was a business investment or was to pay outstanding rent.
The respondent deposed that following the applicant’s accident the applicant was “given light duties by me to keep her mind occupied and stave off boredom and depression”.[42] He deposed that the applicant was trusted with accounting for KPL, the self-managed superannuation fund and personal taxes.
[42] Affidavit of the respondent filed 18 October 2016, par 24.
In relation to the self-managed superannuation fund the respondent deposed that “as we were business partners, the Applicant and I became joint trustees and members”.[43] He went on to state that post the applicant’s accident “the Superfund gave the Applicant something to keep her mind busy and I encouraged the Applicant to learn how to administer and account for the superfund”.[44]
[43] Affidavit of the respondent filed 13 July 2016, par 30.
[44] Ibid.

In relation to his nomination of the applicant as his beneficiary in his Binding Death Benefit Nomination form and naming her as his de facto partner[45] he deposed that this was for “procedural purposes only”. He cited the same reason for referring to her as his partner in the complaint against Victoria Police[46] and for referring to her as his partner in the Magistrates’ Court proceedings. He deposed that:
I attempted to address this and other related matters on several occasions in mid 2009 which resulted in the Applicant losing control of herself completely and threatening violence. I have been trained to deal with such behaviour.[47]
[45] Affidavit of the applicant filed 20 May 2016, Annexure TE-14.
[46] Ibid at Annexure TE-15.
[47] Affidavit of the respondent filed 13 July 2016, par 33(dd).
He deposed that the applicant treated the self-managed superannuation fund as her “own private asset after suffering a loss of capital due to her accident”.[48]
[48] Affidavit of the respondent filed 19 April 2017, par 44.
The respondent deposed that in April 2009 the applicant was paid $54,800 for her work for KPL.
In relation to the applicant using her TAC payments to pay off the line of credit he deposed that he raised concern about merging monies she received into the account several times.[49] However he deposed that each time he raised the issue the applicant became angry and abusive. This evidence was inconsistent with his affidavit evidence where he denied that there were transfers of the TAC monies into the line of credit and he deposed that the applicant’s TAC income was paid into accounts unknown to him.[50] He confirmed later in his affidavit that the applicant did make payments into the F Bank line of credit and these payments “reflected her investment in KPL and her rental obligations to me”.[51] He denied that he lived off the applicant’s TAC payments and deposed that his financial resources were the rental income and income from the business.
[49] Affidavit of the respondent filed 13 July 2016, par 32.
[50] Affidavit of the respondent filed 13 July 2016, par 33(h).
[51] Ibid at 33(o).
The respondent conceded he used the applicant’s PayPal account with her permission but that she encouraged him to do so, so she could accumulate reward points on her credit card.
The respondent denied that the applicant contributed towards his purchase of a motorcycle.
In response to the applicant’s affidavit he deposed that in 2007 the applicant contributed little to household duties and gardening, but conceded that she did do some cooking in late 2007.
The respondent deposed that all his accounts are linked through one membership number and one password and as the applicant did the accounting for KPL, the superannuation fund and himself she therefore had access to these accounts.
In response to the applicant’s affidavit in which she deposed that the parties discussed buying a business together in 2014, he deposed that he has looked at numerous business opportunities since 2012. He deposed that he was “not intending to involve the Applicant in those projects; however the applicant attempted to involve herself”.[52]
[52] Ibid at 33(r).
In response to the applicant’s assertions that she carried out works to the Suburb C property, he conceded that she did help him with some of the renovation work such as painting and she “tried her hand at tiling”.[53] He denied that the applicant spent $35,000 on the renovation and deposed that any costs “assumed” by her were in lieu of rent.
[53] Ibid at 33(s).
The respondent denied that the parties hosted events as a couple and deposed that the applicant was depressed and isolated after her accident and he attempted to assist her to recover from her injuries. He deposed that as he was her carer by default they lived together and they attended a very small number of events together. He denied that they celebrated Easter 2014 with his brother because his brother “is a Jehovah Witness” and does not celebrate Easter.
In response to the applicant’s affidavit in which she deposed to attending weddings with the respondent and organising birthday parties for him, he admitted that he took the applicant to these events to “introduce her to some new friends in order to help her recovery”.[54]
[54] Affidavit of the respondent filed 13 July 2016, par 33 (z).
In response to the text messages he sent the applicant, he denied that the tenor of these messages support the view that the parties were in a de facto relationship.
The respondent denied ever being violent towards the applicant and deposed that the applicant was “unreasonable, deceitful and abusive” towards him.[55]
[55] Ibid at 33(ee).
The respondent deposed that he “constantly encouraged [the applicant] to go out with men that were interested in her”.[56]
[56] Affidavit of the respondent filed 19 April 2017, par 48.

Cross-examination of respondent

When cross-examined about the profit and loss statement for KPL in the financial years 2007 and 2008 the respondent ultimately accepted that the financial statements reflected that there were accumulated losses for both years.
During cross-examination the respondent conceded that from the end of the financial year in 2008 and each following year until 2015 that the financial records of the trust revealed accumulated losses and that his personal income tax return for the financial year ending June 2008, if it had been provided, would indicate a zero income. The respondent maintained that he had provided his personal income tax returns to the solicitors for the applicant but was unable to provide any documentary evidence to that effect. Exhibit C was a letter from the respondent to the solicitors for the applicant about the documents he provided. Despite the fact that this letter did not refer to the personal income tax returns being provided to the solicitors for the applicant, the respondent continued to maintain that it did.
The respondent agreed that on 3 January 2007 his home loan with F Bank for the Suburb C property amounted to $206,375.
The respondent also acknowledged that prior to her accident the applicant paid $80,250 in November 2008 into the line of credit. The respondent maintained that this money was paid pursuant to an agreement which was being prepared through solicitors to effectively provide the applicant with 30 per cent of the business through shares in the trust which operated the business. Although shares were never transferred to her he maintained that she received a benefit in learning about an investment opportunity and she had the opportunity of running the psychometric testing. He conceded that to transfer the shares in the trust to the applicant would in fact amount to giving her nothing and that he proposed to remain as the sole appointor of the trust and to retain absolute control. He agreed that the applicant had paid off his mortgage on the Suburb C property and the line of credit but maintained that he did not owe her anything.
The respondent ultimately agreed that when the applicant received her redundancy payment that she paid it into the line of credit removing the debt.
The respondent was asked questions by the applicant’s counsel about whether there were any discussions between the parties about getting involved in a business relationship when the applicant received the TAC payments in 2014. The respondent responded:
No because, [the applicant], was not - there was never an agreement she would pay into the mortgage. I don’t, I’ve never had an - any access to - her any information whatsoever about her personal financial situation or her bank accounts. So yes, I can hear your argument. Unfortunately the context and all things actually going on there was actually what was going on.
It was put to the respondent that if it were accepted by the Court that there were discussions about investing monies in 2014, the only monies available to the parties were from the applicant’s TAC settlement and any monies drawn from the line of credit and had they invested at that time they would have been drawing on the line of credit the applicant had just paid off. He responded:
No, because there’s no relationship between the two. What I was thinking about doing – again, the context, unfortunately, is not – not being communicated what was going on, neither – and [the applicant’s] behaviour and, sort of, whatever was going on with counselling and why she made those payments, which is not what we agreed, you know, they’re all separate issues…
The respondent conceded that the applicant did pay off the line of credit and mortgage using her TAC payments. He was asked if he wanted the Court to accept that he did not give permission for her to pay those debts and he responded “that’s not quite true but certainly the mortgage payment was not part of the thing nor was it required nor was it asked for”. He denied that he was appreciative for the payment being made because “she was getting very nervous and insecure as our agreement, that the actual agreement approached… funny things going on with her in counselling which you know I wasn’t party to. And this is just how it sort of rolled out but what you’re putting… is a story. You are, the facts are the facts. These transactions did occur”.
The respondent was questioned as to why he did not draw a cheque on his mortgage and tell the applicant that he didn’t want her money. He responded that he never had any details of the applicant’s bank accounts and was unable to transfer it back. He denied that he could pay back the amount today or in the next couple of days if he was provided with the applicant’s bank details as circumstances had changed over the last two and a half years.
Exhibit H was the trust deed for the respondent’s superannuation fund. He agreed that the document was adopted by him and signed by him and that the applicant was recorded as his de facto partner and 100 per cent beneficiary in the event of his death.
Exhibit F was the respondent’s personal income tax return for the year ending June 2014 which he accepted was completed in his handwriting and with his signature. He ultimately accepted that he had described the applicant as his de facto spouse in that tax return and in a subsequent tax return for the year ended June 2015. His explanation for this description was that he had copied the tax return from previous tax returns prepared by the applicant and that at this time he was “discombobulated” because he couldn’t think straight and he was being stalked by the applicant. With the benefit of a certificate issued under s 128 of the Evidence Act 1995 (Cth), he conceded that he had provided false information in his previous tax returns where the applicant was described as his de facto spouse but that this was because the returns had been prepared by the applicant.
He maintained that the text messages which he had sent to the applicant containing the personal messages had been sent as a result of his business relationship with the applicant.
Concerning social engagements at the golf club referred to in the evidence of the friend of the applicant Mrs X, the respondent maintained that he had wanted to get the applicant out of the house because she was depressed and that because she could not drive he was transporting her to the function as a friend. The respondent later in submissions argued that Mrs X’s evidence which suggested that he was upset with the applicant because she was dancing with somebody else at the golf club function, was entirely false because the applicant was suffering from injuries to her leg at the time.
He continued to maintain that he had wanted the applicant to leave the house and maintained that she first moved into the house in Suburb C after her accident. When asked about the contradiction between this evidence and his own affidavit where he stated that the applicant had been staying at Suburb C full time and paying rent in 2007 he stated that it depends on the definition of living full time at the house.
The respondent conceded that he had accompanied the applicant on numerous holidays as outlined in her affidavit material but maintained that this was for business purposes and to “get her out of the house” as a friend. He agreed that they stayed in the same room together as friends.

Evidence of Ms Z

Ms Z is the sister of the respondent and deposed that she met the applicant in or around late 2007 in Suburb C. She deposed that she knew the applicant to be the respondent’s “Business Associate and Friend” and that nothing in the behaviour of the parties indicated to her that they were in a relationship as “boyfriend/girlfriend”. She deposed that the applicant became a friend of her family after the applicant’s accident in 2009 and that she included her in a number of social gatherings specifically because she was aware that the applicant had “no supportive family or friends in Melbourne”.
At paragraph 11 of her affidavit she deposed that she knew that the applicant was also being trained to run an online testing platform that the respondent was adding to his business. She deposed:
I participated in the testing process using the online system and [the respondent] and [the applicant] took me through the results at the Micawber Tavern in Belgrave. [The applicant] discussed the testing with me on numerous occasions and I remember how excited she was about what she was doing prior to her accident in early 2009.
In cross-examination, Ms Z confirmed she was aware that the applicant received a TAC payment in 2011 but was not aware of where the money went. When questioned about whether she knew that the respondent had his mortgage and line of credit paid off by the applicant she responded “I knew [the applicant] had helped him out but [the respondent] was going to pay her back”. She believed that the applicant should have “rightfully” helped him out because he took care of the applicant following her accident as his whole life was “put on hold”.
In cross-examination and contrary to all of her other evidence Ms Scully conceded that she had posted the message on Facebook which referred to the applicant as her sister in law.

Evidence of Mr Z

Mr Z is the respondent’s brother-in-law who deposed that he could not recall when he met the applicant but that he recalled inviting her to his home at the request of his wife Ms Z for Christmas in 2008. He deposed that he knew the applicant to be the respondent’s business partner but did not depose to any evidentiary foundation for that conclusion.
He was not cross-examined in the trial.

Evidence of Mr GG

Mr GG deposed that he was introduced to the applicant in 2007 as a new member of KPL, the applicant’s business. He deposed that he was aware of the applicant’s accident in 2009 and the respondent told him that the applicant had no support in Melbourne and she was “clearly looking to him for support.” He deposed to staying at the Suburb C property for three to four weeks in June 2014 and spending a lot of time with the parties.
He was not cross-examined at trial.

Evidence of Ms HH

Ms HH deposed that she lived next door to the respondent for more than 10 years and deposed that in 2007 she invited the parties to her place for Melbourne cup day. She deposed:
When I introduced [the respondent] and [the applicant] to our friends, I remember [the respondent] saying that he and [the applicant] were not together. I have known [the applicant] was working with [the respondent] since November 2007.
She also deposed that she knew that the applicant had an accident in early 2009 and had a long recovery.
This witness was not cross-examined at trial.

Evidence of Mr Y

Mr Y has known the respondent for 27 years and worked with him in the 1990s. He deposed that he first met the applicant in October 2006 when the parties had “dropped in” to his place. He deposed that he “could not tell” whether they were romantically involved on the day but at a later time during a telephone conversation, the respondent had told him that the parties had spent some time together recently but “that he wasn’t pursuing it.”
He deposed to being invited by the applicant to attend her birthday party at her Suburb O residence in late 2008 and to meeting the respondent at his residence in Suburb C and going together in his car. He deposed to being aware of the accident in 2009 because the respondent phoned him on the day and deposed to the respondent being emotionally affected by the trauma of the accident and the ongoing management of the applicant’s recovery.
He deposed to knowing that the applicant was working for the respondent with his KPL enterprise and to knowing that they were not involved in a romantic relationship. There was no further explanation of this conclusion. He deposed to knowing that the respondent was helping the applicant with her recovery from her accident and return to work.
In cross-examination, Mr Y stated that he knows the respondent well and knows about his personality, financial position, his business and his relationships. In response to questions in cross-examination he agreed that he knew him as a successful businessman and knew him as honest. In response to whether he believed the respondent would be honest in his dealings with the Australian Taxation Office he said that the respondent has the “highest measures of integrity” of anyone he had ever met. He conceded it would surprise him that the respondent had submitted false income taxation returns.
In response to whether it would surprise him that the respondent named the applicant as his de facto partner on his tax returns he responded “people do all sorts of things for all sorts of reasons”.
It was suggested that Mr Y knew that the applicant was working for the respondent because that is what the respondent told him. He responded “that is my understanding”. He was not prepared to accept or deny that it was his understanding based on what the respondent told him. He stated he had no knowledge of the applicant buying into the business.
During cross-examination Mr Y stated that both the applicant and respondent told him on separate occasions that they were not involved in a romantic relationship.
Mr Y conceded in cross examination that in the last 10 years he has only been in the bedroom of the Suburb C property once or twice. He could not recall how many times he had been to the Suburb C property in the last five years. Mr Y gave evidence that from his memory there was a bedroom and a bathroom upstairs in the Suburb C property.
Mr Y would not accept in cross-examination that his evidence was based on what the respondent told him rather than his own observations.
Mr Y gave evidence that he never saw the applicant and respondent display affection towards each other.

Assessment of the applicant and her witnesses

The applicant impressed as a witness of truth and answered questions in cross-examination to the best of her ability. She maintained an even demeanour in the face of difficult questioning which frequently involved commentary.
I have taken into account the fact that Mr V is the father of the applicant and is obviously supportive of his daughter. However Mr V impressed as a witness of truth who did not embellish his evidence and answered questions directly.
Ms W was an independent witness and a professional who was both credible and clear in her evidence that she was called upon to counsel the parties as a de facto couple on 15 October 2008.
Mrs X was unshaken in her evidence that the parties socialized as partners living in a de facto relationship.

Assessment of the respondent and his witnesses

The respondent did not impress as a witness of truth and had great difficulty answering many questions concerning the payments made by the applicant. The respondent was non-responsive in answering questions and frequently met questions with further argument stating that he did not want “to play the game.” His responses frequently involved dissembling and references to the applicant undergoing counselling and “acting strangely.” He had difficulty making any concessions even when confronted with documentary evidence in his own handwriting. In the context of all the other evidence in the trial, the respondent’s evidence about the applicant being a business associate, investor and friend is inherently unlikely.

The evidence about the Facebook posts referring to the applicant as her sister-in-law casts doubt upon the evidence of the respondent’s sister Ms Z.
The evidence of the friend of the respondent Mr Y lacked credibility in his assessment of the character of his friend and his evidence to the effect that he would be surprised if the respondent lodged false income tax returns was at odds with the evidence of the respondent. His evidence appeared to be largely based on what the respondent as his friend had told him.
The short affidavit evidence of the respondent’s brother-in-law did not provide any evidentiary foundation for his opinion that the applicant was the respondent’s business partner.
The evidence of Mr GG was consistent with the applicant’s evidence about working in the respondent’s business and having been supported by the respondent in her rehabilitation after the accident.
Not much weight can be attached to the evidence of the respondent’s neighbour Ms HH whose evidence was about her memory of what the respondent said in an interaction on Melbourne Cup Day in 2007.

Findings

I accept generally and prefer the evidence of the applicant whose evidence was supported by her witnesses and documentary evidence. I am satisfied on the balance of probabilities on the basis of all of the evidence of the following facts.
The applicant is aged 52 and holds a degree from a university in Queensland. The applicant was in full time employment when she met the respondent. The respondent is aged 53 and is self-employed in a business which he conducts from premises where he lives at Suburb C. The business is known as KPL. The Suburb C property is registered in his name and was purchased by him before he met the respondent.
There is no dispute that the parties began a sexual relationship soon after they met in late September or early October 2006 as a result of a connection on an internet dating website. At that time the applicant was living in a property in Suburb AA which she owned with her ex-husband. She received $115,000 from the proceeds of sale by way of property settlement in or about April 2008.
I accept and prefer the evidence of the applicant that she commenced living with the respondent in a relationship as a couple at the Suburb C property in January 2007. The respondent lived at the Suburb C property with Mr BB and Mr CC who each occupied a bedroom and who also worked for the business. They moved out of the Suburb C property during 2007.
The Suburb C property was subject to a mortgage loan when the applicant moved in.
The applicant moved out of the Suburb C property and rented a property in Suburb O from early January 2008 until mid-January 2009. During that time, the respondent continued to conduct his business from the Suburb C property and the interest on the mortgage was claimed as a business expense. I accept the evidence of the applicant that the respondent essentially lived with her most of the time in a relationship as a couple at the Suburb O property during this time.
The applicant was retrenched in or about April 2008 and worked for the respondent’s business, KPL in or about June 2008 undertaking a number of tasks including office administration and management, overseeing psychometric testing and interviewing candidates for recruitment.
The applicant returned to live with the respondent in a relationship as a couple at the Suburb C property on 12 January 2009 after selling her car and selling items which were duplicated between them such as a washing machine, clothes dryer, lounge suite and refrigerator.
The applicant was involved in a serious road accident on 18 January 2009 and was hospitalised for a period of approximately 9 weeks. When the applicant was discharged from hospital she continued to live with the respondent at the Suburb C property until she left on 2 January 2015. I accept her evidence that the parties continued to live together in a relationship as a couple during this time.
During the course of her rehabilitation the applicant was in receipt of TAC payments based on the income she had received from the respondent’s business. The respondent assisted the applicant with her rehabilitation.
The fact that the respondent nominated the applicant as his de facto for the purposes of his income tax return is relevant to a number of the considerations under s 4AA of the Act (Exhibits F and G).
I accept the evidence of the psychotherapist Ms W who was unshaken in cross-examination that the parties attended for counselling on 15 October 2008 as a couple and that they presented to her that they were in a de facto relationship. This evidence corroborates the evidence of the applicant and the other evidence of the witnesses for the applicant about the nature of the relationship of the parties being a de facto relationship.
Since they separated, the parties have mutual intervention orders made by consent without admission of the allegations in the complaints

Circumstances under Section 4AA(2) of the Act

Section 4AA(2) (a) the duration of the relationship

I accept and prefer the evidence of the applicant that she moved into the Suburb C property in January 2007 when she was in full time employment with Company M as a Project Director. I accept and prefer the evidence of the applicant that the respondent asked her to move into the Suburb C property and that by late 2007 the respondent’s housemates Mr BB and Mr CC both moved out of the property leaving the parties living together at the Suburb C property until the applicant moved out in January 2008 after an argument in December 2007.
I find that when the applicant moved into the rented property in Suburb O in January 2008 that the parties reconciled by late January/early February 2008 and resumed the relationship. I find that during 2008 the applicant became redundant from her employment with Company M and by June 2008 she was working in the respondent’s business at the Suburb C property.
I accept the evidence of the applicant supported by the evidence of Mr V, Mrs X and Ms W that she was living with the respondent for a period of approximately 8 years from January 2007 during which time the parties lived together in a relationship as a couple and in a loving and affectionate relationship with the exception of about one month from December 2007 to late January/ early February 2008 when the applicant moved out of the Suburb C property and rented a property in Suburb O when the parties had an argument.

Section 4AA(2)(b) the nature and extent of their common residence

I find that the parties shared a common residence from January 2007 when the applicant moved in to the Suburb C property. I find that the parties continued to share that common residence until the applicant moved to the Suburb O property in early January 2008. I find that the parties lived in separate residences for about one month, but that the respondent commenced living with the applicant at the Suburb O property and occasionally stayed at the Suburb C property. During this time the respondent continued to conduct his business from the Suburb C property. I find that the applicant and respondent returned to live together at the Suburb C property from mid-January 2009 until 2 January 2015. I accept and prefer the evidence of the applicant about the extent of the common residence of the parties as outlined earlier.

Section 4AA(2)(c) whether a sexual relationship exists

I accept the evidence of both parties that a sexual relationship began soon after they arranged a date via the RSVP Internet dating website in October 2006. I accept and prefer the evidence of the applicant that the sexual relationship continued until 2 January 2015 although the relationship was affected by a separation of about one month when the parties had an argument in December 2007 and the applicant moved into the Suburb O property in January 2008. I find that there was also a sexual component to their relationship after her accident on 18 January 2009 and during the course of her convalescence and rehabilitation.

Section 4AA(2)(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them

I find that in or about January 2007 (the applicant deposed it was November 2007 but in cross-examination conceded that it could have been January 2007 which was deposed to by the respondent) the applicant became guarantor for a line of credit from F Bank for the respondent’s business.
I find on the evidence of the respondent that on 3 January 2007 the respondent’s home loan with F Bank for the Suburb C property amounted to $206,375.
I find on the evidence of both parties that in November 2008 prior to her accident the applicant paid $80,250 into the line of credit which had been established in January 2007.
In February 2009 as a result of the accident, the applicant received payments from TAC annually over four years which amounted to $178,831. The funds were initially paid into the applicant’s personal bank account, but were then transferred into the joint F Bank line of credit and applied towards payment of the mortgage secured over the Suburb C property, reducing the debt owed on the line of credit and to general living expenses including utilities and groceries.
According to the trust deed, in March 2009 the parties established a self- managed superannuation fund “The G Fund” of which they were joint trustees and members. I accept the evidence of the applicant which was not disputed by the respondent that the respondent nominated her as the beneficiary of his interest in the superannuation fund. I find that the respondent named the applicant as his “Defacto Partner”.[57]
[57] Affidavit of the applicant filed 20 May 2016, Annexure TE-14.
In 2010 the applicant received a gift of $3,000 from her grandmother which she applied towards replacing the hot water system at the Suburb C property. In 2013 the applicant received an inheritance from her grandmother’s estate in the sum of $15,000 which she applied towards payment of general living expenses for the parties.
On 15 April 2014 the applicant received $672,000 as a final TAC settlement which was the net amount after payment of the solicitor’s fees. The funds were applied as follows:
·approximately $100,000 towards paying off the F Bank line of credit in the name of both parties reducing it to nil;
·approximately $164,000 towards reducing the mortgage loan secured over the Suburb C property in the name of the respondent such that the balance owed amounted to approximately $67; and
·payment of general living expenses for both parties.
I find on all the evidence that the applicant contributed the funds that she received from the sale of the Suburb AA property, the money that she received from her redundancy in June 2008, her inheritance and all of her regular TAC payments together with most of her final settlement of $672,000 towards the payment of the F Bank line of credit, the mortgage payments for the Suburb C property and the living expenses of both parties.[58] I accept and prefer her evidence that this included the costs of holidays and the purchase of a motor bike for the respondent.
[58] Affidavit of the applicant filed 20 May 2016, par 63.
I am satisfied that there was substantial financial support provided by the applicant to the respondent and that he provided her with non-financial support in caring for her after her accident. There was an intermingling of finances between the parties from 2007 until 2015.

Section 4AA(2)(e) the ownership, use and acquisition of their property

I am satisfied that the applicant contributed to the mortgage payments on the Suburb C property registered in the name of the respondent as outlined previously and that on the evidence of the applicant, Mr V and the respondent she also assisted physically with renovation works at the Suburb C property as set out in her evidence. I accept her evidence that she sold her car and used the respondent’s car.

Section 4AA(2)(f) the degree of mutual commitment to a shared life

Having regard to the duration of the relationship and on all the evidence I am satisfied that there was a degree of mutual commitment to a shared life, but that at various times throughout the relationship the respondent had misgivings about the applicant assisting him with his business. I accept the evidence of the applicant that the parties planned to use her TAC settlement to purchase a business.
There was no dispute that the respondent cared for the applicant throughout her period of convalescence and rehabilitation when she was discharged from hospital and continued to live at the Suburb C property with him.
I find that both parties were committed to renovating and improving the Suburb C property.
I am satisfied that although the relationship at times was turbulent, and there was a separation period of about one month after an argument in December 2007 that the parties maintained a significant degree of mutual commitment to a shared life, which included a mutual interest in the respondent’s business.

Section 4AA(2)(i) the reputation and public aspects of the relationship

I am satisfied on all the evidence that both parties represented to their family and friends that they were in an intimate relationship, living as a couple and socialising as a couple. I accept the evidence that the respondent’s sister referred to the applicant as her “sister-in-law” in a Facebook post after New Year’s Eve on 1 January 2014. The fact that the parties were seen to be working together at times does not preclude them from being in an intimate or a de facto relationship. I accept the evidence that the applicant was assisting the respondent with his business and that this was publicly known.

Conclusion

I am satisfied that the parties are not legally married to each other and not related by family. I am satisfied that having regard to all the circumstances of their relationship including the circumstances which I have considered under s 4AA(2) of the Act, that the parties had a relationship as a couple living together on a genuine domestic basis. I am satisfied on all the evidence that the applicant has proven on the balance of probabilities that the parties were in a de facto relationship and that it is appropriate to make the declaration pursuant to s 90RD of the Act that a de facto relationship existed between the applicant and the respondent for the period from January 2007 until 2 January 2015 with the exception of one month between January and February 2008.

I certify that the preceding two hundred and forty-five (245) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 15 September 2017

Associate:

Date: 15 September 2017

Annexure A

The applicant relied upon the following documents:

Further Amended Initiating Application filed 2 December 2016
Affidavit of the applicant filed 20 May 2016
Affidavit of the applicant filed 28 September 2016
Affidavit of the applicant filed 28 April 2017
Affidavit of Ms X filed 28 September 2016
Affidavit of Mr V filed 28 September 2016
Affidavit of Ms W filed 28 April 2017

The respondent relied upon the following documents:

Further Amended Response to Initiating Application filed 7 December 2016
Affidavit of the respondent filed 13 July 2016
Affidavit of the respondent filed 18 October 2016
Affidavit of the respondent filed 19 April 2017
Affidavit of Ms HH filed 17 October 2016
Affidavit of Mr Y filed 17 October 2016
Affidavit of Mr GG filed 17 October 2016
Affidavit of Mr Z filed 19 April 2016
Affidavit of Ms Z filed 19 April 2016

[2017] FamCA 1173

15 September 2017

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Jurisdiction

Procedural Fairness

Statutory Construction

Remedies