Gardon & Zhang
[2022] FedCFamC1F 371
Federal Circuit and Family Court of Australia
(DIVISION 1)
Gardon & Zhang [2022] FedCFamC1F 371
File number(s): SYC 4528 of 2021 Judgment of: CHRISTIE J Date of judgment: 30 May 2022 Catchwords: FAMILY LAW – INTERIM 90RD THRESHOLD ISSUE – Meaning of de facto relationship – Where the applicant husband has suffered cognitive decline – Where the parties are no longer cohabiting – Where The NSW Trustee and Guardian on behalf of the applicant, seeks a declaration that the relationship has broken down – Alteration of property interests sought – Where the respondent wife asserts the relationship has not broken down – Judgment reserved pending Fairbairn v Radecki appeal to the High Court of Australia ––Where the Court is required to consider all evidence relevant to the threshold issue. Legislation: Family Law Act 1975 (Cth) ss 4AA, 90SM, 90RD Cases cited: Fairbairn & Radecki (2020) 62 Fam LR 62.
Fairbairn v Radecki [2022] HCA 18.
Nord & Van (2018) FLC 93- 833.
Division: Division 1 First Instance Number of paragraphs: 160 Date of last submission/s: 17 May 2022 Date of hearing: 7-8 December 2021 Place: Sydney Counsel for the Applicant: Mr Harper on 7-8 December 2021 Solicitor advocate for the Applicant: Mr Katsikaris on 17 May 2022 Solicitor for the Applicant: Mr Katsikaris, Katsikaris Family Lawyers Counsel for the Respondent: Ms Judge Solicitor for the Respondent: Mr Keen, Keen Lawyers ORDERS
SYC 4528 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR GARDON
Applicant
AND: MS ZHANG
Respondent
order made by:
CHRISTIE J
DATE OF ORDER:
30 May 2022
THE COURT ORDERS THAT:
1.The Application in a proceeding filed 15 November 2021 by the applicant is dismissed.
2.The Initiating Application filed 18 June 2021 by the applicant is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gardon & Zhang, has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
Introduction
This is an application brought on behalf of Mr Gardon (“the husband”) (“Mr Gardon”), by The NSW Trustee and Guardian (“the Trustee”), as financial manager, seeking a declaration that the de facto relationship between the husband and Ms Zhang (“the wife”) (“Ms Zhang”) has broken down. The application seeks a declaration that the de facto relationship between the husband and the wife ceased on a date in the period July 2019 to September 2019.
Given the parties’ agreement that Mr Gardon and Ms Zhang were in a de facto relationship from 1999 at least until 2019, they will hereafter in these reasons be referred to as the husband and the wife.
On 15 November 2021, the Trustee, filed an application seeking expedition of a hearing pursuant to s 90RD of the Family Law Act 1975 (Cth) (“the Act”).
In response to the Trustee’s application, the wife sought a declaration that a de facto relationship existed between the husband and the wife (“the parties”) and that the de facto relationship, which commenced in or about 2000, is continuing.
The husband has suffered cognitive decline and has been diagnosed with a neurological disease, dementia and has lost control of his bodily functions, requiring full time care at the G Centre (“the G Centre”) (“G Centre”).
On 18 November 2021, Altobelli J made orders expediting the husband’s application for a s 90RD declaration where the Trustee asserted the husband’s health was in rapid decline.
The matter came before the Federal Circuit and Family Court of Australia (Division 1) (“the Court”) for hearing on 7-8 December 2021 at which time I heard evidence, received written submissions and heard oral submissions on behalf of the parties. At the conclusion of the submissions I raised with counsel for both parties whether or not I should adjourn, given the High Court of Australia (“the High Court”) had granted special leave in a matter heard by the Full Court of the Family Court of Australia (as it was then known), which raised similar factual and legal issues; Fairbairn & Radecki (2020) 62 Fam LR 62. Both counsel accepted that this was an appropriate course and accordingly, I have had the opportunity to hear further oral submissions following the High Court handing down their decision; Fairbairn v Radecki [2022] HCA 18 (“Fairbairn”).
Consistent with Fairbairn, the central issue for determination in this matter is whether the parties’ relationship ended. Accordingly, the focus of the Court’s consideration is on events in the period commencing a few years immediately before the date on which the Trustee contends the parties separated and concluding at the time of hearing.
Evidence
At the interim hearing, the Trustee relied on the following documents:
(a)An Initiating Application filed 18 June 2021;
(b)An affidavit of Ms F filed 18 June 2021;
(c)A financial statement filed 18 June 2021;
(d)The applicant’s tender bundle provided 3 December 2021; and
(e)Various documents tendered by the applicant marked as exhibits in the proceedings.
In turn, the wife relied on the following documents:
(a)An Amended Response to an Initiating Application filed 3 September 2021;
(b)An affidavit of Ms Zhang filed 19 August 2021;
(c)An affidavit of Ms Zhang filed 20 August 2021;
(d)An affidavit of Mr K filed 20 August 2021; and
(e)Various documents tendered by the respondent and marked as exhibits in the proceedings.
Given the husband’s guardianship, he did not file an affidavit. The evidence in his case was given by his sister, Ms F and his solicitor. Ms F’s affidavit states that the parties’ de facto relationship broke down in or around July 2019. This would appear to be a conclusion as opposed to evidence of the facts and circumstances which are said to constitute the breakdown of the relationship.
Background
The husband was born in 1955 in Sydney, Australia.
The wife was born in 1952 in Country L.
The parties lived together from 2001 until the husband entered the G Centre in 2019. It was not argued at trial that in the period between 2001 and July 2019 the parties were not in a de facto relationship.
The husband was first diagnosed with a neurological disease in or about 1980.
The parties met in 1996 and soon after commenced a relationship.
Two years after their meeting, in or about 1998, the wife says the parties entered into a sexual relationship.
At the time the parties met, the wife owned three properties: M Street, Suburb N, P Street, Suburb Q and R Street, Suburb Q. The husband owned one property, S Street, Suburb T (“the Suburb T property”).
In early 2000, the parties purchased a block of land as joint tenants at U Street, Suburb V (“the Suburb V property”) with plans to build a house on the land. Construction of the house concluded in June 2007 and the parties moved in shortly after.
In or around April 2001, the wife moved into the husband’s property at Suburb T. They resided there together for around five years until the husband sold the property.
Between the sale of the Suburb T property and construction of the Suburb V property, the parties resided at a rental property belonging to the husband’s brother for six to 12 months.
The wife recalls that the husband started developing symptoms associated with his disease prior to them moving into the Suburb V property. This is also around the time the wife recalls the parties sexual relationship ceasing. However, the wife asserts they remained sleeping in the same bed.
The husband ceased employment in around 2007 while the wife continued to undertake full time employment. Around the same time, the wife became the husband’s carer and began receiving a carer’s allowance.
Between 2007 and 2012, the husband was able to carry out some tasks for himself. During that period, the wife cared for the husband including taking him to medical appointments, shopping and assisting him with his medication.
In 2012, the wife retired from her employment. In the period between 2007 and 2012 the wife was the only member of the couple in receipt of personal exertion income. Her correspondence with the parties’ financial adviser suggests she applied those funds to the living expenses of the parties.
It emerged from the evidence that as the husband’s health deteriorated she was almost solely responsible for his day to day care.
On 27 April 2012, the husband appointed the wife as his attorney under an Enduring Power of Attorney (“EPOA”) and as his guardian.
In February 2015, the parties sold the Suburb V property.
On 21 January 2015 the parties purchased C Street, Suburb B (“the Suburb B property”) as tenants in common.
When the parties moved to the Suburb B property, they ceased sleeping in the same bed. The wife says this was because of the husband’s deteriorating health.
Between 2015 and 2019 the husband qualified for National Disability Insurance Scheme (“NDIS”) assistance and the wife, during that period, had some assistance caring for the husband and cleaning the house.
In the period 16 January 2019 to 5 March 2019 the husband had respite at the G Centre. In April 2019 NN Services received a request for the husband to have a further period of respite commencing 17 June 2019 and concluding 2 July 2019. In the request it says “[Ms Zhang] is [Mr Gardon’s] full time carer…”.
At some point, the parties established a self-managed superannuation fund, namely the X Super Fund (“the superannuation fund”). Y Pty Ltd is the trustee of the superannuation fund and the wife was the sole director of that company. Each of the parties had an interest in the fund.
In 2017, the wife became less able to care for the husband due to her own health issues. It was at this time that the parties dissolved the superannuation fund and entered into individual pension funds.
The husband and wife obtained financial advice during this period from Mr W (“Mr W”) (“financial adviser”). Mr W’s file notes were in evidence. It is plain from these records that as at 20 June 2017 the wife was experiencing difficulties managing her husband’s care and contemplated that downsizing (from the Suburb B property) may have assisted her to manage his care for a further two years, at which time she expected he would need to move into some form of assisted care. The file note from that date records:
…she does not believe she and [Mr Gardon] should be considered spouses and I said if that is the case then she needs to go for a Legal separation and to talk to the Lawyer about that as well as EPOA and EG [Enduring Guardianship].
The wife says that her intention during this period was to separate the finances of the couple while remaining in a relationship. There is no evidence, nor is it suggested, that the parties did or were separated as at 2017.
The records of financial advice in the Statement of Advice dated 9 April 2018 received by the couple also spoke of a plan to downsize and the adviser records:
[Ms Zhang] & [Mr Gardon], you are both currently suffering poor health and feel as though you are unable to continue to manage your financial situation as well as your ongoing health problems, as per your previous arrangements. You are currently in the process of legal separation and you are looking at ways to simplify your life.
Consistently with the statement above, the section of the advice which was headed “Personal and Financial Circumstances” recorded the marital status of both parties as “Separated”.
The wife’s queries about financial advice arose in the context of ascertaining her entitlements to Centrelink benefits – this is apparent from her email to Mr W dated 29 July 2018 entitled “Centrelink information on living separately” and includes the following:
I attached information concerning [ND] patient who de-facto relationship is no longer considered as a couple even though we are still living under the same roof.
…
Do hope this simple option will work out for both of us…
(As per the original)
The advice received was to set up separate pensions. It is not apparent that the statement about being in the process of legal separation was anything that either party acted upon in 2018. The estate planning, also undertaken in 2018, made provision each for the other. Each party approached this hearing on the basis that the earliest date for separation was July 2019.
The wife’s mother lives in Country L. At the time of hearing, on the wife’s evidence, she was over 100 years old. From 2018, during the wife’s trips to Country L to care for her elderly mother, the husband would go into respite care. In July 2019 the wife’s brother who had been on a three month visa caring for their mother was told his visa would not be extended and in that context, the wife reported to her financial adviser that she needed to travel to Country L urgently.
The wife involved the husband’s family in meetings about future arrangements for the husband and reported on her husband’s views to Mr W. The wife’s email to Mr W dated 8 May 2019 records the husband’s changing opinions as to the plans for his care and his finances and reads in part “[m]y apologies for taking so long to handle this matter in the best possible way for our future” (emphasis added).
On 2 July 2019, Dr Z, Clinical Neuropsychologist and Clinical Psychologist, concluded in a report that the husband had a“[c]urrent decision-making disability and requires a substitute decision maker in the context of decisions to be made about his accommodation and care needs”.
Dr Z recommended that the husband be moved into residential care and that decisions for his long term care be referred to the NSW Civil and Administrative Tribunal (“the NCAT or (“the Tribunal”).
On 9 July 2019, the husband’s Case Manager at AA Health, Mr BB, lodged an application with NCAT seeking the appointment of the Public Guardian and the Trustee as guardian and financial manager for the husband on the basis that the wife was travelling overseas for an indefinite period and would be unable to continue as the financial manager. Mr BB withdrew the financial management application after discovering there was an EPOA in place.
On 12 July 2019, the NCAT appointed Mr CC and Mr DD as the husband’s guardians for a period of 12 months. The wife supported the guardianship application for appointment of the husband’s two brothers, Mr CC and Mr DD.
The NCAT reasons for judgment confirm that the basis for the decision appointing the brothers as guardians was that they were satisfied that the husband has a cognitive disability which prevents him from making important life decisions.
In August 2019, the husband gave his brother Mr DD a document in handwriting said by the applicant to be a Will dated 17 August 2019, appointing Mr DD and his mother as Executor of his estate and bequeathing his entire estate to his best friend, Mr EE. Mr DD was not on affidavit and there is no evidence of how that document came into existence at a time where all parties were concerned about the husband’s cognitive decline.
In September 2019, while the husband was in respite, a place became available at the G Centre and the husband’s step-mother facilitated his transition to the G Centre full-time in the absence of the wife (who was overseas caring for family).
In or about October 2019 the wife reported to the parties’ financial adviser:
She has engaged a solicitor and redone her own will to leave her estate to her nieces. Solicitor is [Mr FF] at [GG Solicitors], [Suburb HH]
…
[Ms Zhang] is completely emotionally broken down in meetings as she says [Mr Gardon] is just really hard on her, starts arguments when shopping with [sic] draws attention from others. Emotionally she is just a wreck and just wants to pass on the EPOA and care of [Mr Gardon] to his family or others as it will kill her (She has a serious [medical] condition).
[Mr Gardon] has refused to go to a nursing home or retirement village as he feels “they own the property not us” and they are too expensive. Neurologist says he cannot be made to go in to a home if he doesn’t …want to at present.
…
I advised [Ms Zhang] that as part of the separation she should do a property settlement with [Mr Gardon]. She has been with him for 22 years and caring for him for 11 of those years…
In November 2019 the wife continued to liaise with Mr W on behalf of herself and the husband and their financial affairs.
In December 2019 the wife sent the following message to Mr W:
I have just sold the house at [C Street].
[Mr Gardon's] family wants to take over managing his superfund and finances.
Is there an easy way to do so without having to sell down his superfund investments and start a new pension fund.
[Mr Gardon's] brother in law is a finance professional with his own business.
Given that The [JJ Town] Court have granted the 2 brothers Guardianship until July 2020,
They will now certainly apply to the Courts again to manage his finances and guardianship on a permanent basis.
In other words they take responsibilities for caring for [Mr Gardon] on a permanent basis.
In early 2020 the Suburb B property settled. In February 2020 the wife travelled to Country L to provide care to her mother. The trip was planned for three weeks leaving 14 February 2020.
The wife continued to be involved in the financial arrangements pertaining to the husband’s care and liaised with Mr W in respect of same. On 16 April 2020 she wrote:
Looking at the outstanding RAD [Refundable Accommodation Deposit] I hope to put in another 450k, that leaves another 212k outstanding.
…
If we drawdown on his pension to pay in full, he will have about 100k left in his pension fund.
This will get him either his disability or pension.
Based on assets remaining what will be his pension or disability pension
I am happy to pay for these extra advice, please let me know
(Emphasis added).
In June 2020, the wife moved into the same G Centre as the husband, albeit a different part of the facility.
The wife says she was unable to see the husband as frequently between late 2019 and June 2020 while she organised the sale of the Suburb B property and due to COVID-19 restrictions.
Once she moved into the G Centre, the wife was able to see the husband on a daily basis. She states that she tried to take him out for lunch at least once a week. During times of stricter COVID-19 restrictions, the wife had arranged for daily phone calls between her and the husband.
The wife maintains that the parties are in a relationship. She says that, but for the husband’s poor health, they would remain living together.
Ms F’s affidavit states that the wife communicated to her that she was moving to Western Australia in December 2019.
On 30 June 2020, the NCAT revoked the guardianship order which Mr CC and Mr DD were appointed as the husband’s guardians, which had the effect of reviving the EPOA in favour of the wife.
On 11 August 2020, the NCAT removed the wife as the husband’s attorney based on findings that she had not acted in his interest in failing to pay the Refundable Accommodation Deposit (“the RAD”) more expeditiously and hence accruing interest and a concern that she had utilised funds in the parties’ joint bank account. The NCAT appointed the Trustee as the husband’s financial manager.
The law: de facto relationships
The applicant seeks a declaration that the relationship between the parties ended as a precursor to seeking orders for property adjustment.
Section 90SM of the Act provides that, in property settlement proceedings after the breakdown of a de facto relationship, the Court may make such order as it considers appropriate. The Court may alter the interests of the parties (or either of them) in the property of the parties (or either of them). However the Court must not make an order under s 90SM unless it is satisfied that, in all circumstances, it is just and equitable to make the order: s 90SM(3) of the Act. Therefore a finding of whether the de facto relationship had broken down between the parties, or not, is necessary.
Section 4AA(1) of the Act states that 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; 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.
The Court may declare that a de facto relationship existed, or never existed, between two persons.
When making this declaration, the Court may also declare the period, or periods, of the de facto relationship and when the de facto relationship ended.
To determine whether two people are, or were, in a de facto relationship, the Court may take the following into account under s 4AA(2) of the Act:
(a)the duration of the relationship
(b)the nature and extent of their common residence;
(c)whether a sexual relationship exists;
(d)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e)the ownership, use and acquisition of their property;
(f)the degree of mutual commitment to a shared life;
(g)whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h)the care and support of children;
(i)the reputation and public aspects of the relationship.
In addition, subsections 3 and 4 should also be considered in this context:
(3) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4) A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
In Nord & Van (2018) FLC 93-833 the Full Court of the Family Court of Australia (as it was then known) cited Lynam v Director-General of Social Security (1983) 52 ALR 128 at [24]:
131. Each element of a relationship draws its colour and its significance for the other elements, some of which may point at one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality importance involves a denial of common experience and will almost inevitably be productive of error… it will be a question of fact and degree whether a relationship between two unrelated persons of the opposite se meets the statutory test.
It is important therefore to approach the existence of a de facto relationship and the related question of whether it has broken down with an appreciation of the entirety of the facts and circumstances relevant to the relationship (the subject of the litigation).
Cases such as the present one (where one party has lost decision making capacity) raise the issue of whether it is possible to find that a relationship has broken down, as is required by s 90SM of the Act, without evidence that either of the parties formed and/or communicated an intention to end the relationship.
The High Court resolved the controversy about whether the cessation of cohabitation and/or loss of capacity would be sufficient to signal the end of a de facto relationship. In Fairbairn the High Court concluded:
33. Living together for the purposes of s 4AA(1) will often, perhaps usually, mean cohabitation of some residence by a couple for some period of time. But cohabitation of a residence or residences is not a necessary feature of “living together”. That phrase must be construed to take account of the many various ways in which two people may share their lives together in the modern world. Two people for any number of reasons, may not reside in the same residence, but nonetheless be in a defacto relationship in the sense required by s 4AA.
34. The fact that here the appellant was placed into an aged care facility may be relevant to the existence or breakdown of a de facto relationship under the Act, but it could not, of itself, be determinative of that issue. The same observation applies to the decline in the appellant’s cognitive ability.
(Footnotes omitted).
The circumstance of one party to a relationship moving into an aged care facility is not uncommon. In Fairbairn the High Court referred to their decision in Stanford& Stanford (2012) 247 CLR 108 – a case which dealt with an application for property settlement between two married persons following the wife’s admission to an assisted care facility. It is expected that, where two people are in a relationship and one of those people requires care there will be “necessary or desirable adjustment to the parties’ previous financial arrangements”. If both parties have capacity those decisions will be made jointly. Where one party lacks capacity and the other party fails to make “necessary or desirable arrangements” this may be a relevant consideration.
The High Court concluded where:
38. …one party fundamentally acts contrary to the interests of the other in relation to the property of the couple, it may be possible to conclude that the mutual commitment to a shared life has ceased.
Further, they identified as potentially factually relevant:
43. …persistent refusal by the respondent to make “the necessary or desirable adjustments”, to use the language of Stanford, which might have evidenced an ongoing relationship.
Consideration
As the parties presented their respective cases the Court was being asked to determine whether the relationship between the parties had ended (as is required by s 90SM of the Act) before a property adjustment application may be made or whether, as contended by the respondent, it remained on foot.
Each party pointed to various pieces of evidence as supportive of his or her respective case. As will become apparent, I accept that this is a case where some of the evidence points towards a conclusion that the relationship had changed in ways which the applicant would contend are indicative of the relationship having come to an end, while other parts of the evidence speak to the continuation of the relationship. It is by examining the evidence “in aggregate” that it is possible to reach a conclusion about whether the relationship had broken down.
The Trustee submitted that the wife ended the parties’ long term relationship at the time the husband entered into assisted care (or soon thereafter).
The wife says that the nature of the cohabitation changed but the relationship remained intact.
The wife has an ongoing relationship with the husband. The question for the Court is whether or not it is a de facto relationship.
During the hearing I put to the parties that there would appear to be three potential factual findings:
(a)The parties separated and have not resumed their relationship; or
(b)The parties separated and subsequently resumed their relationship; or
(c)The parties did not separate.
I was taken by counsel for the Trustee to evidence of the wife having reported to third parties that the relationship was over or that she contemplated separation:
(a)In conversations with the husband’s sister;
(b)In the meeting with Dr Z; and
(c)In consultations with Mr W;
I consider that evidence below.
A report authored by Dr Z following meetings with the husband and the wife on 11 June 2019 contains the following:
[Ms Zhang] reported that she used to be in a dating relationship with [Mr Gardon] but since building the house together in 2007 and moving in, she is no longer his partner but only his carer (she receives a Carers Allowance). In contrast, [Mr Gardon] reported that he considers [Ms Zhang] is both his partner and carer.
It has to be accepted that the report, under the heading psychosocial history is not a verbatim record of what was said but an impression. It is plain that Dr Z used quotation marks at other places in the report to denote use of the person’s own words. The expression “dating relationship” is unusual since the parties’ relationship was characterised by cohabitation over a lengthy period of time. It is clear from the evidence that the parties’ sexual relationship ended about 2007 and this gives potential context to the use of the expression “partner” here.
Against that, the material tendered in the case demonstrates that the wife made continued references to her role as “partner” and/or “wife” or was otherwise accepted and recorded as being the husband’s partner in the records of agencies with which the parties dealt with such as, KK Hospital and LL Hospital. The fact that she was also identified as a carer in documents does not preclude her from being a de facto partner – she may be both.
Counsel who appeared on behalf of the wife argued that in circumstances where the applicant sought to persuade the Court that the relationship between the de facto husband and de facto wife had broken down, they did so in a context where they had identified in their evidence that the breakdown of the relationship occurred in the period between July 2019 and September 2019. It was argued that, having identified that period as being the relevant period, they were prevented from arguing that it had broken down at another period or indeed, that they were prevented from exploring evidence about the relationship in a period prior to that date.
Counsel who appeared on behalf of the Trustee responded that the case to be made on behalf of the applicant was not that there may have been an earlier separation but rather that separation between the parties was likely to have been a process which concluded during the period between July and September 2019.
The wife treated as an “admission” in the proceedings the fact that all parties were of the view that the relationship was on foot until July 2019.
As a matter of fact, it appears as though all parties did agree that the relationship satisfied the test set out in the Act and would appropriately be classified as a de facto relationship until at least July 2019. Accordingly, the focus is on whether at a time on or after July 2019 the relationship ended.
It was identified by the respondent that, in order to satisfy the jurisdictional requirement, it would be necessary for the parties to have been separated at the time the application was filed and continued to be separated at the time the application was heard. That is so.
Both parties agreed that in order to determine whether or not there had been a separation, it was appropriate to have regard to the indicia of the relationship at a time where all parties agreed that it was on foot and then to have regard to the period to which it is contended by one party that the parties were separated to determine whether or not there are material differences such that the Court would be convinced that the relationship had broken down. The wife’s counsel submitted that there can be some variations to the nature and characteristics of the relationship which are not necessarily conclusive of separation or breakdown.
The parties cohabited until about September 2019 when the husband’s stay in respite care transitioned to more permanent aged care. Prior to that time the parties had always had a common residence, save for periods of respite care. The parties’ plan had been to downsize and, following the husband’s transition to aged care, the wife took carriage of the arrangements to sell their jointly owned home and the wife then resided in a property at Suburb MM (owned by her brother).
The wife obtained a place at the same facility as the husband in May 2020. For her part she suggests that this was in keeping with a long term plan to reside in the same facility. The evidence demonstrates that historically the wife had made inquiries about retirement apartments with NN Services commencing March 2018. In the application for the accommodation the wife identified the husband as her partner.
The Trustee submitted that the wife’s move to the same nursing home as the husband was a cynical and calculated move undertaken in response to a letter from Katsikiris Family Lawyers dated 1 May 2020.
That sits uncomfortably with the emails the wife sent to the husband ahead of the 1 May 2020 letter (while they were separated by lockdown):
15/04/20
Hi [Mr Gardon]
Hoping you are keeping well and enjoying the extra programs Foxtel has
put on TV.
There are still no signs of Government lifting the ban on travelling and
letting us go out.
Try not to stay in the room all day long , get some fresh air.
Remember drink the Sustagen at least one a day. Are you still writing
and doing some exercises to stay strong while walking . Is your walking
frame still in good working order.
Meanwhile take care and eat healthy food.
Will see you immediately when the stay at home is lifted.
[Ms Zhang]
And on 29 April 2020:
Hi [Ms PP]
Please pass this note to [Mr Gardon] Room …, Thank you very much
Hello [Mr Gardon]
Another lovely day today and hope you are feeling well.
It seems a long time since I last saw you .
This sunflower looks so cheerful and will make you smile.
Make sure you are eating well and drink the Sustagen daily to give
:You strength. Take care and looking forward to see you soon .
[Ms Zhang]
(As per the original)
The above emails are characteristic of the emails that continued through lockdown.
In any event, lawyers engaged by the wife responded promptly to the correspondence from the lawyers engaged by the husband’s family conveying their instructions that the relationship was, from their client’s perspective, ongoing.
In her interview at the G Centre in answer to the question “what are some of the things you are looking forward to after moving in?” the wife wrote “Gardening, being close to husband”. I find that the change to the parties’ living arrangements is a direct result of their respective health needs and not material to my determination about whether the relationship had ended.
It is significant to examine whether the wife’s financial conduct is inconsistent with the continuation of the de facto relationship. This addresses s 4AA(2)(d) of the Act.
It is important to have an understanding of the manner in which the parties organised their finances during the relationship to assess whether any change to those arrangements speaks to the relevant question: did the relationship end between June 2019 and September 2019? Unlike the parties in Fairbairn there is no evidence that these parties had entered into any formal or legal agreements which dealt with their financial affairs either during the relationship or in the event of its breakdown.
The parties purchased a block of land in Suburb V. The wife says they paid the 5 per cent deposit from their joint savings.
On 13 April 2010 the wife deposited $453,000 towards the mortgage secured over the parties’ home in Suburb V. The wife says those funds came from a lottery win she shared with her brother.
When the parties sold the Suburb V property they purchased the Suburb B property. While there was originally a mortgage over the Suburb B property that mortgage was discharged when the parties received the proceeds of sale from the Suburb V property.
The parties had funds remaining from the sale of the Suburb V property.
The husband has not been in employment since 2007. It would appear from the available evidence that his financial contributions from this point came from his existing savings, superannuation and the inheritance he received in 2007. The evidence suggests that as his cognition declined he began to spend increasing amounts on stationery and photocopying in order to maintain his significant correspondence. Prior to the introduction of the NDIS the husband’s medical expenses were met from the parties’ funds.
The wife has not been in employment since 2012. In the period between 2007 and 2012 the wife was the sole personal exertion income earner. The parties had joint bank accounts. They jointly bought property and obtained loans to facilitate same.
Otherwise, there is not a great deal of evidence about the manner in which the parties organised their finances during cohabitation. What evidence there is, is predominantly contained in the material which was before the NCAT and in the records of the parties’ financial adviser.
As the husband’s health deteriorated it seems clear that the wife commenced pursuing options which would see the parties considered as single or separated for the purpose of assessment of their entitlements to government benefits. In that regard she says that she had been provided with information from the neurological disease support group about other couples whose circumstances were similar. In response to those inquiries by the wife, Mr W explained that if she were separated, she was entitled to seek a property settlement. The wife did not pursue a property settlement.
I have taken into account the financial advice by Mr W as contained in his file note dated 21 October 2019 in which he advised the wife as to property settlement options between the parties.
Mr W was cross-examined about this file note. He gave evidence that the file note was made in respect of the wife seeking to obtain a Commonwealth Senior’s Health Card (“the health card application”) and that in pursuing the application they had to disclose whether she was single, married or in a de facto relationship. Counsel for the applicant pressed Mr W on why he had told the wife she would need to see a lawyer in respect of the health card application. Mr W answered that he did not believe that the wife was separated and as such would not qualify for a health card in circumstances where he believed they were separated due to health circumstances as opposed to an intention by the parties to separate.
I consider this file note to be the high water mark of the evidence supportive of the conclusion that the parties’ relationship had broken down. It is clear evidence of the wife’s despair. Whatever her thoughts and feelings at the time, she did not instruct a lawyer to implement a property settlement. In fact, she did not seek such advice and did not stop providing care to the husband.
The wife was certainly seeking advice about her finances and those of the husband in the period when the Trustee contends they were separated – including how the RAD would be funded. Her email to Mr W of 16 April 2020 being a good example. The inquiry is inconsistent with the relationship between the parties being at an end as contended by the Trustee. It is plain when the wife says “I am happy to pay for these [sic] extra advice, please let me know” that she is acting consistently with the need to put into place proper financial arrangements for her husband in their new living circumstances.
It was not in dispute that in the period leading up to the husband entering respite, the wife provided his day to day care. It is equally uncontroversial that she found this stressful and injurious to her own health. The Court is acutely aware that when approaching the question of whether the parties had separated at the time asserted by the applicant it is important to understand that the wife expressing frustration and voicing her desire to be free of the responsibilities of caring for her partner are not conclusive of the end of the relationship. Those frustrations and desires may be understood as natural consequences of undertaking a difficult task on a full time basis. The important question is to what extent the wife acted at the time or subsequently consistent with the proposition that her relationship of at least 18 years had ended.
Such was the stress experienced by the wife that during a meeting at KK Hospital Neurology Clinic in May 2018 the records contain this entry:
Met with pt [patient] and his partner ([Ms Zhang]) at neurology clinic. Pt [from context actually reference to partner] was visibly upset when met at clinic and stated she is completely overwhelmed’ by caring for pt and suggested she should just ‘take all my pills at once and go lie down.
By May of the following year NSW Health records record:
D/w HD CNS regarding [Mr Gardon's] wife, [Ms Zhang], unable to continue to provide care due to [Mr Gardon's] challenging behaviours and [Ms Zhang's] own health issues.
[Mr Gardon] requires further Neuropsych assessment re capacity as recommended by [Dr QQ]. Phone call to [Ms Zhang] to see how she is. [Ms Zhang] advised she continues to struggle with [Mr Gardon] but unable to stop caring for him until a decision is made regarding his capacity as will enable her to move forward with tasks such as selling their home and looking at alternative care options for [Mr Gardon].
[Ms Zhang] agreed to call the Neuropsychology Dept. next Monday or Tuesday and ask to speak with [Dr Z] to discuss an appointment date. Advised [Dr Z] may not be able to take her call as may be seeing patients.
Discussed [Ms Zhang’s] self-care and if she would be attending upcoming carers group - has RSVP no but may change her mind on the day. Feels a bit embarrassed that she got upset at the last carers group. Reassured re same and that she is an amazing carer.
It is in that context that the Trustee asserts that two months later, the relationship between the husband and wife may have ended.
The wife met with the Neurological Disease Outreach Service on 11 June 2019 and the NSW Health Records for that date record:
met with [Mr Gardon] and partner, [Ms Zhang]… discussed how they have been, [Mr Gardon] reported he has been well. [Ms Zhang] advised she has injured her left shoulder exacerbated her difficulty caring for [Mr Gardon].
The Clinical Neuropsychology Report of the same date (11 June 2019) contains this sentence: “On direct inquiry, [Mr Gardon] confirmed his wish is to remain in his residence for the next 5 years and that he would not move out unless [Ms Zhang] passed away”. This is the best direct evidence of the husband’s views of the situation at a proximate time. It speaks to his commitment to a shared life together as at June 2019.
While the position for married couples and de facto couples is different by reason of the fact that a member of a de facto couple cannot seek orders for property adjustment unless the relationship has ended, married persons may seek an order for property adjustment where it is just and equitable and the Court determines it necessary. The position of a full-time carer in both scenarios is likely to be productive of similar feelings of frustration and (at times) despair and even desire to be free of the responsibility of being the spouse and carer. It is important not to treat all such expressions as conclusive proof of the end of a relationship where, as here, the other available evidence points to the continuation of the parties’ relationship.
The NCAT proceedings
Ultimately it was the disagreement between the husband, the wife and Mr Gardon’s family about living arrangements that saw this application in the Guardianship Division of the NCAT. Ms Zhang and Mr Gardon’s family both agreed that the wife could not continue to care for the husband at home. The husband disagreed. At the beginning of the process there was not a significant issue between the wife and the husband’s family. Unfortunately, by the conclusion of the tribunal proceedings there had been a deterioration in the husband’s relationship with his own family of origin and a deterioration in the relationship between the wife and the husband’s family.
The wife reported to Mr BB at KK Hospital on 5 July 2019 that her mother (aged 99 at the time) and sister were both physically unwell and she was travelling to Country L on 19 July 2019. She discussed respite care at that time. The husband was resistant to respite care. The wife felt she had few alternatives. When interviewed for the purpose of a report dated 11 July 2019 the husband suggested he could stay in a hotel and when money ran out the wife could send more.
An NCAT hearing took place on 12 July 2019. It was on this occasion that Mr DD and Mr CC were appointed jointly as guardians to make decisions in respect of the husband’s accommodation, health and dental care and provision of services. It was explicitly in the context of the wife’s trip to Country L, characterised as being for an “indefinite” period that the issue arose. No order for financial management was made. It is clear from a social work file note of KK Hospital that the wife felt overwhelmed about what her role was after the NCAT hearing.
Following the NCAT hearing on 12 July 2019 the wife remained in charge of the husband’s finances by way of an EPOA from 2012.
When the wife returned from Country L in March 2020 she contacted the G Centre and their records state: “Please let [Mr Gardon] know that [Ms Zhang] is back from [Country L] but will be self-quarantined until the end of March. Then she can visit him”.
On 16 April 2020 an NDIS Plan for the husband was approved and under the heading “My Family and Friends” listed the respondent “Wife [Ms Zhang]…”.
An application for financial management was made to the NCAT after the wife’s return from Country L. That application lists as other parties to the application “[Ms Zhang], his spouse”. The application records the wife’s agreement that Mr Gardon’s sister [inaccurately described in the document as his niece] be appointed as his financial manager.
When the guardianship order made 12 July 2019 was reviewed by NCAT on 11 August 2020, the Tribunal revoked the guardianship order which had been made as and from 30 June 2020. That order had appointed the husband’s brothers in the context of the wife’s impending travel. In revoking the order the Tribunal took into consideration the husband’s views. The husband told the Tribunal he wanted the wife to make decisions for him. The wife said she wanted to make decisions for the husband. The judgment read:
We decided on the basis of all this evidence that a further guardianship order not be made. Whilst we take into account the views of [Mr Gardon’s] family, we considered that these were outweighed by [Mr Gardon’s] view that he did not want a further guardianship order made. It appeared to us that the proposed further appointment of [Mr CC] and [Mr DD] would be distressing for him. Given that there were no decisions identified requiring a guardian at this time, it was difficult for us to see sufficient justification. There was insufficient need identified, particularly given [Ms Zhang’s] enduring guardianship appointment which accords with [Mr Gardon’s] previously expressed and currently expressed preference. We accepted [Ms Zhang’s] evidence that she is available to act as guardian, including if she is overseas.
On 11 August 2020 the Tribunal made the following orders:
...the Tribunal determines, orders or declares:
1. To carry out a review of the operation and effect of the enduring power of attorney.
2. Not to make an order under section 36 of the Powers of Attorney Act 2003. The application for review of the enduring power of attorney is treated as an application for a financial management order under Part 3A of the Guardianship Act 1987.
And
1. The estate of [Mr Gardon] is subject to management under the NSW Trustee and Guardian Act 2009.
2. The management of the estate of [Mr Gardon] is committed to the NSW Trustee and Guardian.
(As per the original)
There were two significant issues of financial management which were the focus of concern by the husband’s family:
(a)Delay by the wife in attending to payment of the RAD; and
(b)The payment to the wife of $453,000 from the proceeds of sale of the parties’ property at Suburb B.
The original amount of the RAD was $710,000. While that amount or any portion of it was left unpaid, it accrued interest. On 1 April 2020 the sum of $662,005.05 remained to be paid. The wife proposed to apply $450,000 from the sale of the Suburb B property and a further amount of approximately $212,000 from the husband’s pension fund to discharge the balance.
While the RAD was unpaid it was accruing a daily payment fee of $95.00. I accept that the delay in payment of the nursing home RAD was productive of financial loss. It does not follow that it is evidence that the parties’ were separated. The RAD could not be paid from the proceeds of sale of Suburb B until the property settled. It could have been paid by realising the husband’s pension entitlements. Ultimately it was paid from both sources. The wife’s decision making in delaying payment of the RAD seems understandable in light of the multiple matters she was juggling at that time.
The proceeds of sale of the Suburb B property were $1,207,239.35. There were the usual adjustments and otherwise the cheques were drawn as follows:
(a)to the husband and wife, the sum of $750,937; and
(b)to the wife the sum of $453,000.
It would have been necessary for the agent to account to the parties for the deposit and accordingly a further amount of about $108,000 after commission was paid to the parties such that their joint account held $862,146.16 on 29 January 2020. On 5 February 2020 the wife invested those funds in a three month term deposit in both parties’ names earning 1.6 per cent interest.
The delay in payment of the RAD was a concern to the NCAT in circumstances where it occasioned a financial loss. This is understandable. The NCAT were also concerned that the wife used the joint account to pay expenses for the Suburb B house after the husband no longer lived there. That does not concern this Court. The use of joint funds for payment of expenses on the parties’ jointly owned home is of no significance to the decision as to whether the relationship was ongoing.
In a similar fashion the husband’s family’s concern (which was echoed in the August 2020 NCAT decision) about failure to explain withdrawals is not (absent other evidence) indicative of the breakdown of the parties’ relationship.
I have to consider the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties: s 4AA(2)(d) of the Act. It is useful to understand the arrangements which prevailed prior to the date on which it is contended the relationship ended. The parties had jointly purchased property both as tenants in common and as joint tenants. They had both worked although the husband’s time in the workforce was shortened. The parties had a self-managed superannuation fund. They did not keep their finances separate. There is very little other evidence about the topic.
On behalf of the Trustee it was submitted that the manner in which the wife treated the proceeds of sale of the Suburb B property was consistent with the wife, in effect, implementing her own informal property settlement. In closing submissions it was suggested that the wife’s decision to reimburse to herself the $453,000 was evidence that she was acting in her own financial interests and inconsistently with the financial interests of the husband. I do not have sufficient information available from the evidence to conclude that the wife’s decision to allocate $453,000 from the proceeds of sale as funds to be returned to her was inconsistent with her continuing to be in a relationship with the husband.
The wife liaised with the financial adviser on the parties’ behalf. On 21 May 2020 the wife sent an email to the financial adviser as follows:
Hi [Mr W[
These are expenses [Mr Gardon] will need from today.
Can you please reduce the pension funds from 3000/monthly to 2600/monthly.
I am also applying for [Mr Gardon’s] DSP and if successful will help with the outgoing costs ..
I will cover any monthly deficits with my own funds.
Also I bought a retirement village unit close to [Mr Gardon’s G Centre] for 401 k plus
Ongoing fortnightly charges of $300, can move in 4 weeks from now.
Thank you very much [Mr W] for your ongoing support and help to [Mr Gardon] and I
The wife’s intention to cover any shortfall in the husband’s budget is consistent with financial dependence or interdependence being one of the matters which the Act sets out as relevant to the determination of the existence or otherwise of a de facto relationship.
It is challenging to assess the parties’ mutual commitment to a shared life without direct evidence from the husband: s 4AA(2)(f) of the Act. But, what evidence I do have in respect of the husband’s views is consistent with the conclusion that he sees the wife as his partner and was reluctant to leave the home they shared. Similarly, he has voiced his contentment with her as his carer and decision maker after the physical cohabitation ended. There is abundant evidence of the wife’s commitment to the parties’ shared life. In evidence before me were the records of the wife’s visits to the husband from 8 May 2021 to 26 June 2021. Those records would suggest almost daily visits (and on some days two or three visits). That evidence is consistent with the continuation of their relationship.
It useful to turn to the evidence that is objectively recorded by public health professionals as to the interactions between the husband and wife: s 4AA(2)(i) of the Act. The wife had been in a caring role for the husband for some time prior to his move into the aged care facility. While the difficult work of providing his sole care is now undertaken by professionals, the wife’s evidence suggests she has continued to provide care.
Examples include her regularly monitoring and liaising with staff at the G Centre and the NDIS Provider about the husband’s needs and supplies (April 2020, June 2020, July 2020, September 2020, March 2021and July 2021), reporting his pain and seeking pain management (January 2021) and making queries about his diet and weight loss (June 2021). The evidence suggests that the husband would report pain to his wife and she would seek assistance on his behalf (July 2020 and September 2020). The wife was laundering the husband’s clothes (January 2021) or making sure that laundry was being attended to (June 2021). There are requests by the wife arranging for adjustments to his wheelchair (June 2020).The wife was arranging dental visits and taking the husband to them (July 2021), similarly visits for steroid injections (October 2020 and January 2021) and to attend the bank in person (October 2020). She ensured he was seen by the visiting optometrist (July 2020) or visiting general practitioner and organised telehealth appointments for the husband (March 2021) and followed up on physiotherapy (June 2020) and has been involved in his speech pathology (April 2021).
The tendered material contains email messages written by the wife to be passed on to the husband, for example, on days she could not see him or might be late (July 2020). On 15 September 2020 she wrote: “Please ask [Mr Gardon] to look out his room window at 10:00 am tomorrow 16/9 [2020] and [Ms Zhang] will wave at him”. Another example is the email sent by the wife ahead of her visit on 7 June 2020 about her visit for the following day “When you see him let him know I am coming and bring his spectacles along, he forgets sometimes”. From time to time she would send an email asking the staff at the husband’s facility to have him call her. In June 2020 she sent a message wanting to know how the husband was presenting because he had been quite upset on her visit the previous day.
It is unnecessary to set out all the file notes which detail the attention and care the wife has devoted to the husband in the period after it is asserted the relationship ended. I am comfortably satisfied that she provided care to him (as he desired) in a manner consistent with the care she provided for him prior to July 2019. I am comfortably satisfied that the care is indicative of her commitment to the relationship.
The material tendered in the wife’s case demonstrates that the wife represented to others and others accepted that she and the husband were a couple: s 4AA(2)(i) of the Act. The case worker from the RR Clinic at KK Hospital, Mr BB, knew the couple over a long period. He was the applicant to the Tribunal. In filling in the paperwork and answering the question “does the person have a spouse”, he ticked the box for “YES” and identified the wife.
The wife perceived the NCAT proceedings as a challenge to the status of her relationship – that much is clear from the file note of 8 July 2019 which reads:
Phone d/w [Ms Zhang] 17/07/2019 to see how she is following NCAT hearing.
Following discussed:
- [Ms Zhang] feeling very stressed
- doesn’t know what her role is now that [Mr Gardon’s] brothers ([Mr W and Mr CC]) have legal responsibility for decisions re health, services and accommodation
- worried that either things won’t get done or she will still have to complete
- attempted to explore what [Ms Zhang] wanted to do however she is struggling as feeling very overwhelmed…
And later an email exchange between the wife and Mr BB dated 17 June 2020:
Once the family get hold of the P of A, they can issue a restraining order and stop me from caring and seeing him. [Mr Gardon] will be the one to suffer most. From next Monday I will be able to visit him daily upon obtaining permission from [G Centre].
Thanks – [Ms Zhang]
On 1 May 2020 the husband’s sister instructed lawyers to write and seek information – implicit in the correspondence was an assumption that the de facto relationship between the parties had ended. A lawyer acting on behalf of the wife wrote back two days later and denied the relationship had ended.
The wife in her communication with Mr BB expressed concern that if the husband’s family were to seek guardianship they would use the powers granted by the NCAT to prevent her from seeing and caring for the husband (to the detriment of the husband).
When the Public Trustee was appointed financial manager, even though she had opposed this course, the wife indicated to Mr BB that she was relieved not to be managing her partner’s finances as she hoped it would reduce conflict between herself and Mr Gardon’s Family.
The wife communicated with the G Centre for the purpose of making arrangements such as taking the husband out, including for Christmas lunch (December 2019) and, as detailed above, facilitating medical appointments inside and outside the aged care facility. The tendered material from the G Centre supports the conclusion that NN Services have at all times dealt with the wife as the husband’s next of kin.
Conclusions
Counsel who appeared on behalf of the Trustee succinctly submitted as follows:
…the case on behalf of the application [i]s three fold:
1. [Ms Zhang] intended that the relationship break down or that the parties be separated and acted upon that intention, separating in or about September 2019
2. Regardless of [Ms Zhang’s] intention, the circumstances of the de facto relationship no longer existed in or about July 2019 and [Ms Zhang’s] behaviour, in particular her pursuing return of the $453,000 contributed initially to the [Suburb V] property was so incompatible with the conduct of the relationship to date so as to indicate that the relationship had come to an end; and
3. That break down can mean something other than the end of a relationship
(Case Outline filed on behalf of the husband at [26]).
The factual circumstances upon which the applicant sought to rely to ground the second limb of the argument were as follows:
(a)The contention that the wife had indicated an intention to move to Western Australia.
(b)The contention that the wife had, for a period of time, been pursuing methods by which she could have returned to her the sum of $453,000.
(c)The extent to which the wife made representations in respect of her financial position which had the effect of treating assets owned by her as irrelevant to the financial circumstances of the couple.
The husband’s sister gave evidence that the wife spoke to her in September 2019 abut moving to Western Australia. Namely, that the wife said she is moving to Western Australia to be closer to Country L and because property is cheaper there. Further Ms F’s evidence was to the effect that the wife had discussed with her the purchase of property with Ms Zhang’s brother, in Western Australia. The wife in evidence confirmed she discussed helping her brother set up his home but was not moving herself. No evidence of any property purchase was before the Court.
The wife certainly had a trip to Western Australia planned for early 2020 but cancelled it due to COVID-19.
In an email to Ms F dated 7 April 2020 the wife said “I will make sure I stay in Sydney until [Mr Gardon’s] affairs are handed over to the family before leaving”. That could be interpreted as a reference to a planned move but equally could be consistent with the necessity for the wife to travel for family related reasons. The wife was not cross-examined about it.
The wife did not move to Western Australia.
The determination, having regard to the whole of the relevant circumstances, of whether the parties’ relationship ended, is, by its nature, an exercise of discretion. It involves an assessment of the available evidence supportive of a finding about the status of the relationship. Human relationships are infinitely mutable. In this case, from about 2014, the evidence suggests that the wife found life more challenging as she navigated her husband’s failing physical health and the diminution in his cognitive skills. She experienced her own significant physical health challenges and juggled both of these with an aging parent living overseas. She diligently attended to her husband’s day to day care and all the non-financial contributions required to run a household. She also attended to their financial affairs. While, I accept that she explored whether legal separation would assist the parties’ financially and that she allocated to herself from the parties’ funds an amount designed to recognise her “lottery win” contribution to the parties’ real property, I do not accept that those circumstances point only to the end of the parties’ long term relationship. In reaching that conclusion I am aware that the wife has provided daily care and continues to provide daily care to the husband. She is attentive to his health and welfare in a manner consistent with her long term commitment to him.
The High Court has now clarified that break down of the relationship is to be read as synonymous with “end of the relationship” and having regard to the relevant indicia in s 4AA of the Act, I do not accept that the de facto relationship between the parties ended.
The focus of the case advanced by the Trustee has been primarily on the financial aspects of the parties’ relationship. This is unsurprising given their role and function. However, too narrow a focus, would result in this Court making a declaration that the parties’ relationship ended in circumstances where it is apparent it is ongoing.
I find the parties continued their de facto relationship after the period in which the Trustee contends the relationship ended and that the parties have continued their relationship thereafter.
I certify that the preceding one hundred and sixty (160) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 30 May 2022
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