Gartner and Halvorsen

[2018] FCCA 2880

FEDERAL CIRCUIT COURT OF AUSTRALIA

GARTNER & HALVORSEN [2018] FCCA 2880

Catchwords:
FAMILY LAW – De Facto Property – Applicant seeking property settlement orders – respondent denying the existence of a de facto relationship – hearing into the discrete issue of whether a de facto relationship existed – where the applicant bears the onus of proof – where the parties did have a personal relationship but where the court cannot be satisfied that they were in a de facto relationship – declaration made that the parties were not in a de facto relationship – application for property settlement dismissed.

Legislation:

Family Law Act 1975, ss.90RD, 90SB, 90SM

Cases cited:

Owens & Benson [2014] FamCAFC 243
Briginshaw v Briginshaw (1938) 60 CLR 336

Applicant: MR GARTNER

Respondent: MS HALVORSEN

File Number: NCC 2325 of 2016

Judgment of: Judge Terry

Hearing dates: 22 & 23 June & 3 August 2017

Date of Last Submission: 3 August 2017

Delivered at: Newcastle

Delivered on: 12 October 2018

REPRESENTATION

Counsel for the Applicant: Mr Bithrey

Solicitors for the Applicant: Everingham Solomons Solicitors

Counsel for the Respondent: Mr Boyd

Solicitors for the Respondent: Duncan & Maclean & Associates Pty Ltd

ORDERS

1. Pursuant to s. 90RD of the Family Law Act it is declared that a de facto relationship never existed between MR GARTNER and MS HALVORSEN.

2. The application filed on 1 September 2016 is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT TAMWORTH

NCC 2325 of 2016

MR GARTNER

Applicant

And

MS HALVORSEN

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 1 September 2016, Mr Gartner filed an application seeking property settlement orders. He named Ms Halvorsen as the respondent and he alleged that he and Ms Halvorsen were in a de facto relationship from 1 June 2013 to 31 August 2015 and that the court therefore had jurisdiction to determine whether property settlement orders should be made.

2. Ms Halvorsen filed a response denying that the parties were ever in a de facto relationship. As a result the matter was listed for a hearing to determine the discrete issue of whether a de facto relationship existed.

The applicable law

1. Pursuant to s. 90RD of the Family Law Act the court can declare that a de facto relationship existed or never existed.

2. S.4AA(1) of the Family Law Act 1975 defines de facto relationship as follows:

   A person is in a de facto relationship with another person if:

   (a) the persons are not legally married to each other;

   (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.

3. The applicant and respondent satisfy (a) and (b). They are not legally married to each other and they are not related by family. The issue I need to decide is whether they satisfy (c), in other words whether having regard to all the circumstances of their relationship they had a relationship as a couple living together on a genuine domestic basis.

4. The applicant bears the onus of proof and to succeed he must establish on the balance of probabilities that the parties were in a de facto relationship. That is reiterated in many cases including Owens & Benson.[1]

   [1] Owens & Benson [2014] FamCAFC 243

5. In Briginshaw & Briginshaw[2] the High Court said that in order for a court to be satisfied about something on the balance of probabilities it must:

   … feel an actual persuasion of its occurrence or existence. It cannot be found as the result of a mere mechanical comparison of probabilities independently of any belief in its reality … at common law it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal.

   [2] Briginshaw v Briginshaw (1938) 60 CLR 336.

6. If the court finds that a de facto relationship existed it can pursuant to s. 90RD (2) make a declaration about the period or periods of the de facto relationship and when the de facto relationship ended. This is important for the purposes of s. 90SB, which provides that the court may only make a property settlement order if the period or total of the periods of the de facto relationship is at least 2 years or that the parties had a child or that the applicant made substantial contributions of a kind mentioned in s.90SM (4) (a), (b) or (c) and that a failure to make an order or declaration would result in a serious injustice to the applicant.

7. The applicant and respondent do not have a child and the applicant did not submit that he had made substantial contributions and that a failure to make an order or declaration would result in an injustice. Establishing the period of the de facto relationship if I found that one had existed, would therefore be crucial and the parties devoted a good deal of time to arguing about the date the applicant moved briefly into the respondent’s home or started using it as his base (June 2013 or October 2013) and the date their relationship ended (August 2015 or February 2015) because these dates make all the difference to whether the de facto relationship if one existed was for 2 years and 2 months or one year and 3 months.

8. However for reasons now to be given, I cannot be satisfied that the parties relationship was ever a de facto relationship and in those circumstances resolving those issues becomes unimportant.

The evidence

1. The applicant relied on his Initiating Application filed on 1 September 2016 and his affidavit and the affidavits of his friend Mr D and his daughter Ms D filed on 6 June 2017.

2. The respondent relied on her response filed on 14 October 2016, her affidavit filed on 13 June 2017 and the affidavits of her mother Ms P filed on 13 June 2017 and her friend Ms M filed on 15 June 2017.

3. All of the witnesses save for Mr D were cross-examined.

An assessment of the witnesses

1. The evidence of Ms P did not assist me. It went mainly went to explain the ownership of Property A, the property where her daughter lived during the period she knew the applicant and why on her case her daughter did not have a beneficial interest in Property A or another property which according to the certificate of title she and her daughter co-own. This would be relevant if I was determining whether to make property settlement orders but it does not assist me to determine whether a de facto relationship existed.

2. Ms P did make a number of statements in her affidavit directed to the issue of whether the applicant and respondent were in a de facto relationship but they are not statements on which I can place any weight. She asserted that the applicant never “lived’ at Property A but she was not living at this property herself and had limited means to form that opinion. In addition she made numerous assertions in her affidavit about matters about which she could have no personal knowledge and numerous paragraphs in her affidavit began with or included the words “I understand”. I can place no weight on those assertions or on the statements which follow the words “I understand.”

3. As for the parties, there is always a risk in a matter like this that people will have an imperfect recollection of events which occurred years ago and that they may inadvertently tailor their evidence to suit the case they wish the court to accept. I therefore have to be somewhat cautious about the evidence of both parties but there was one piece of evidence by the applicant which was just wrong and which could easily have been verified by him by checking employment records and the fact that he included it in his affidavit without checking causes me to be concerned about the reliability of his evidence in particular.

4. The applicant said this in his affidavit:

   In or about June 2013 I recall that I moved in with Ms Halvorsen and [X] and [Y] on a permanent basis and I continued to work at (employer omitted).[3]

   [3] Applicant’s affidavit paragraph 22

5. During cross-examination the applicant admitted that he commenced working at (employer omitted) in June 2013, having previously lived and worked in Queensland. He admitted that he lived on site at (employer omitted) until 31 October 2013 and that it was only after his employment there ceased that he commenced living at the respondent’s home although this was short-lived.

6. The evidence in the applicant’s affidavit about what happened thereafter was also misleading. In February 2014, the applicant moved to Queensland and the way he described things in his affidavit, created the impression that as a result of the respondent not joining him in Queensland he resigned from his employment at the end of 2014 and thereafter lived with the respondent until their final separation which he said was in August 2015. That is not correct. There were a few months around the end of 2014 and in early 2015 when he was not employed in Queensland but by April 2015 his bank records show more withdrawals in Queensland than in NSW and in May 2015 he again had employment in Queensland. [4]

   [4] Applicant’s affidavit paragraph 29

7. I will have to assess the evidence of the parties about each individual issue as it arises but my concern about the accuracy of the applicant’s evidence in particular will have a bearing on the findings I make.

8. Ms D’s evidence was also inaccurate as to dates. She referred to a number of events which she said occurred in 2012 but which related to events at (employer omitted) and the applicant did not commence working at (employer omitted) until June 2013.

The matters in s. 4AA (2) of the Family Law Act

1. S. 4AA (2) of the Family Law Act sets out circumstances the court can take into account when trying to work out whether persons have a relationship as a couple living together on a genuine domestic basis. I intend to consider the evidence of the parties within this framework although I will need to bear subsections (3) & (4) carefully in mind. They provide that:

   (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 seems appropriate to the court in the circumstances of the case.

2. The first of the matters in sub-section (2) is the duration of the relationship.

3. The word relationship is used in this sub-section, not de facto relationship, and insofar as the word relationship means a connection or association the applicant and respondent had a relationship for somewhere between two years seven months and three years and three months in length.

4. The parties met at a (hobby) event near Town A in April or May 2012. The applicant was then living and working in Queensland. His marriage of 26 years had ended in 2010 and he was not in another relationship. The respondent was living at Town A with her son [X] then aged about 6. She was also not in another relationship, her partner having died in 2012.

5. The parties became friends and began attending (hobby) events together but it is not clear whether this was in 2012 or 2013. The applicant and Ms D said that it was in 2012 but the applicant was not a reliable witness and a number of the references to 2012 in Ms D’s affidavit were wrong because she used that date in connection with the applicant being at (employer omitted).

6. The respondent said that the parties did not begin seeing each other until April 2013.

7. Nothing turns on when the applicant and respondent began spending time together regularly and there was no dispute that they did commence spending time together. They shared a love of (hobby) and the applicant said and I accept, that they competed together in team events in Town A, Town B, Town C and Town D and that [X] would come along most of the time.

8. The applicant said and I accept, that he and the respondent visited friends together and sometimes travelled together on weekends to (hobby) and there was no dispute that they commenced a sexual relationship. Members of their family met each other and there was some interaction between their families although it was never extensive. The respondent sent Ms D a message on Ms D’s daughter’s birthday in 2013.

9. However the parties’ time together was limited until June 2013 because they lived more than 500 kilometres apart and mainly spent time together as a result of the applicant travelling down from Queensland on his days off. The respondent’s claim that they spent about 7-10 days together per month is likely to be correct.

10. There can be no doubt that the applicant wanted to spend more time with the respondent and in June 2013, he obtained a job with (employer omitted) at Town E near (employer omitted) which is about 70 kilometres from Town B. He worked from 7am to 4pm each weekday and every third weekend and he lived on site but the parties spent time together on his days off or if the applicant visited (employer omitted).

11. In or about August 2013 the parties began buying (hobby products) together and the applicant gave the respondent access to bank accounts in his name. I will refer later in the judgment to the evidence the parties each gave about the use of the accounts.

12. At the end of October 2013 the applicant’s employment at (employer omitted) ceased and he moved into the respondent’s home and did contract work around Town A. However in February 2014, he obtained employment at (employer omitted) near Town F in Queensland and he again began living in Queensland which put a distance of 560 kilometres between the parties. The parties’ relationship continued however and the applicant travelled down to Town B each month and spent time with the respondent and the respondent made one or two visits of short duration to Queensland.

13. The respondent said that the relationship ended in February 2015. She said that the breaking point for her was that in January 2015, the applicant told his daughter Ms A who had just been released from jail, that she could stay at the respondent’s home until she found somewhere else to live. Ms A did move in but the respondent made her displeasure known and Ms A left after several days. The respondent said that the parties ceased seeing each other in February and that she started a relationship with her now husband Mr J in July 2015.

14. The applicant said that he ceased his job in late 2014 so that he could return to live in New South Wales but there is no convincing evidence that he moved back into the respondent’s home. He said that the parties continued to see each other however, and that the watershed event was in August 2015 when he and the respondent had an argument in the kitchen at Property A. He said that during the argument, the respondent grabbed his hand which had 12 stitches from a recent incident causing him immense pain. He said that he decided then and there to end the relationship and he had not seen the respondent since.

15. As proof that his association with the applicant continued during 2015, the applicant tendered bank statements which showed withdrawals in the Town A area. However, although there are withdrawals between February 2015 and June 2015, they reduce after February and there is no doubt that by May 2015 the applicant was again working in Queensland.

16. There is clear evidence that the parties’ relationship after February 2015 was not the same as it was at an earlier time. There is no evidence of them attending events during this period and the applicant’s own evidence was that from late 2014 the respondent was often hostile and aggressive to him. His bank statements show withdrawals from ATM’s in the Town A area until June 2015[5] meaning he was in the area but some of his family lived in Town A so he had other reasons to visit that area.

    [5] Exhibit D

17. It is difficult to be sure when the parties association ended. There was no dispute that they had a disagreement about Ms A living with the respondent in January 2015 but there is evidence of the respondent continuing to withdraw money from a bank account used in connection with their joint venture to buy and sell (animals) and breed (animals) until June 2015,[6] so the respondent’s evidence about when the relationship ended may well be wrong.

    [6] Exhibit C

18. It seems likely that a relationship of some kind between the applicant and respondent continued until June 2015 but at that time the withdrawals ceased and Ms D said that in July 2015, she and her father discovered how much money the respondent has been taking from his account and that her father stopped the respondent’s access to the account. This makes it unlikely that any sort of friendly association continued until August 2015.

19. The findings I make about the duration of the relationship are that the parties met in April 2012 and that from April 2013 onwards, if not earlier, they attended many (hobby) events together and also socialised in other ways. In August 2013 they began a joint venture of buying and selling (animals). They lived under one roof for a few months from late 2013 to early 2014 and continued an association into 2015. In June 2015 the respondent was still withdrawing money from the bank account used for their joint venture. However, that ceased at that point and I consider it more probable than not that the relationship ended in June 2015.

20. However whether their relationship was ever a de facto relationship is a question I will have to consider after making further findings.

21. The next consideration is the nature and extent of common residence.

22. The respondent lived at Property A at all material times.

23. In his trial affidavit the applicant said that:

    In June 2013 Ms Halvorsen and I started living together.

24. When pressed about this during cross-examination he said that he moved to the respondent’s property at Property A after he finished at (employment omitted) but said that he was not sure of the date he finished there. He was shown documents which established that his last pay period was for the period ending 31 October 2013 and he admitted that he had remained at (employer omitted) until then.

25. Between October 2013 and February 2014, the parties did have a common residence and the applicant began working as a contractor Town A and surrounding areas.

26. In February 2014, the applicant secured a job at (employer omitted) in Queensland which provided a three bedroom house. He was keen for the respondent to join him and he asked Ms D to inquire about whether the respondent could also obtain a job at the (employer omitted), something she reluctantly did. However the respondent did not move to Queensland.

27. The applicant said that thereafter he travelled back and forth to Property A and lived with the respondent during his “off” shifts for 4 to 6 days. He said that it became clear to him that the respondent did not want to move to Queensland despite what they had agreed and as a result he ended his employment in December 2014. However, he did not move back into Town G and later in 2015 he commenced working at (employer omitted) in Queensland.

28. The parties’ common residence was at the most for a period of three months between November 2013 and February 2014.

29. The applicant said that until the parties’ relationship ended in 2015, he had numerous personal items at Property A, including items of furniture, a welder and tools and personal documents and papers including taxation documents and photographs of his grandchildren.

30. I accept that may be the case because there was an incident between the parties in September 2015, when the applicant went to the home and the respondent called the police and the applicant was charged and this apparently related to retrieving belongings. However, it was not a situation of the applicant having personal belongings at the home such as might be kept there by a fly in fly out worker who works away but returns home each fortnight or each few weeks. When the applicant worked in Queensland he had a residence in Queensland. The evidence about the applicant’s belongings does not alter my finding about the extent of their common residence.

1. I must consider is whether a sexual relationship existed.

2. It was common ground that the parties had a sexual relationship between either April or May 2012 or April 2013 and about February 2015. The parties’ assertions about whether that continued after February 2015 mirrored their claims about whether the relationship ended in February. I will not be able to determine as a separate issue when the sexual relationship between the parties ended and nothing turns on it.

3. I next have to consider the degree of financial dependence or inter-dependence and any arrangements for financial support between the parties.

4. There was no financial dependence or interdependence between the parties in the form of a sharing of household expenses such as one party paying the mortgage and outgoings and the other paying for food and other weekly expenses. Each party was employed or earned contracting income during the relationship and they were never financially dependent on each other.

5. The applicant said that he paid for a number of expenses for the respondent including groceries, insurance for the respondent’s car, feed and other animal related expenses and items for [X].

6. The respondent disputed that she received any regular assistance from the applicant and the applicant’s evidence is too general to allow me to make a finding that he provided regular assistance in the face of the respondent’s denial.

7. It would have been reasonable for the applicant to buy groceries when he was living at Property A and he may well have bought food and paid expenses in respect of the (animals) the parties acquired as part of their joint venture but this does not establish that he was supporting the respondent.

8. The applicant provided no detail about the extent of the payments he made or the items he purchased and he agreed in cross-examination that the respondent never asked him for money for [X] and that the money he gave was more in the nature of gifts for [X].

9. He also agreed that when he was not at Property A, the respondent paid for feed and animal related expenses for the animals kept on Property A.

10. I must consider the ownership, use and acquisition of property.

11. The parties did not acquire any real property during the relationship either in their own names or separately.

12. Prior to the relationship commencing, the respondent had an interest in Property A with her mother Ms P and the applicant said that he did work at Property A including repairing fences and yards, digging holes for posts, cultivating land for sowing, cleaning rubbish from the property, repairing pressure pumps, repairing outside lights and maintaining lawns and the yard area. He said that he paid for necessary materials but provided absolutely no detail about this.

13. The respondent denied that the applicant did fencing or mowed lawns at Property A. She named other people she said did this. She denied that the applicant repaired pumps and named someone who did that.

14. There may be some truth in the applicant’s claim that he did some work at Property A. He had skills to do that kind of work. It is somewhat unlikely that he would have sat around idle if he saw something which needed doing at the respondent’s property and the respondent may have convinced herself that he did nothing because she is desirous of fending off his claim about there being a de facto relationship. However, the applicant’s evidence was very general and when he visited the respondent they also attended (hobby) events and looked after their (animals). There was nothing to suggest that the applicant did extensive, indispensable work on the property.

15. It was common ground that the parties formed a joint venture to buy and sell (animals) and breed (animals). The respondent agreed that she and the applicant paid $4,000.00 to the applicant’s daughter Ms D for four (animals) and the parties bought and sold a number of (animals) together.

16. The applicant operated two accounts during the relationship, a Bank 1 account ending in and a Bank 1 account ending in. He said that the money from the sale of (animals) was deposited into those accounts as well as money he received from (animals). He said that he gave respondent authority to withdraw from the Bank 1 accounts for (animal) food and the money from the sale of (animals) was paid into that account.

17. The applicant asserted at trial that the respondent withdrew money from the account not just to pay expenses for the business venture or obtain her share of sale proceeds but to pay for her own living expenses. He said that between 31 May 2013 and 11 June 2015, the respondent withdrew money from his accounts 72 times. He provided evidence of 67 withdrawals.

18. The respondent denied that she took money out for her personal expenses. She said that when money from the sale of animals was paid into the applicant’s account and she would then draw some out to pay for feed and expenses connected with the animals or to obtain her share of the proceeds.

19. The applicant attached to his affidavit detailed information the respondent provided to him about her withdrawals from the account. The document contains plausible and comprehensive evidence that the withdrawals were legitimate and were related to the business venture between the parties.[7]

    [7] Applicant’s affidavit Exhibit I

20. The applicant as noted earlier was not always a reliable witness and there was no evidence which could satisfy me that I should accept the applicant’s claim that the respondent drew on money which was his to help support herself.

21. I must consider the degree of mutual commitment to a shared life.

22. On the applicant’s evidence he was keen to form a marriage-like relationship with the respondent. He said that in mid-2012 (although given his unreliability about dates it could have been mid-2013), he suggested that the applicant rent out her farm and that she and [X] come to live with him in Queensland. He alleged that the respondent suggested that instead he look for a job near where she was living and live with her.

23. He said that as a result in June 2013, he found a job at (employer omitted) at Town E. He was provided with accommodation but it was his case that he had his mail directed to Property A and considered it his home.

24. He lived with the respondent between November 2013 and February 2014 but he said that he had a preference for returning to Queensland because he had worked for (employer omitted) for 13 years. He said that he discussed with the respondent the idea of her moving to Queensland and obtaining a job in the (employer omitted). It was his evidence that the respondent was agreeable to that proposal. Ms D gave evidence that the applicant asked her to enquire about whether the respondent could get a job at the (employer omitted) where he was working.

25. This is evidence of a desire by the applicant to have a shared life with the respondent but the respondent said that she never contemplated moving to Queensland or joining the applicant in Town G and there is no independent evidence to gainsay this.

26. I cannot rule out the possibility that the respondent said things to the applicant which were equivocal or even that she has forgotten exactly what she said but actions speak louder than words. The respondent never took any steps to relocate or to press the applicant to live with her at Property A. The evidence does not support a finding that the respondent was ever committed to a shared life with the applicant as opposed to being happy to attend (hobby) events with him, have a sexual relationship with him and buy and sell (animals) with him.

27. I must consider whether the relationship was registered under a prescribed law of a State or Territory as a prescribed relationship.

28. This is not relevant.

29. I must consider the care and support of children.

30. The applicant said that he had a father-son relationship with [X] and also the respondent’s older son [Y]. He did not give much information about his relationship with [Y] but he said that he taught [X] to ride a bike and taught him other skills, watched him play (sport) and supported the respondent when [X] was admitted to hospital after falling off a motor bike.

31. The respondent said that the applicant had very limited involvement with her son [X]. She agreed that he came to Hospital and stayed the night after [X] had an accident but said that was the extent of his involvement in caring for [X] after the accident. She maintained that [X] was afraid of the applicant but it is unclear if that might have arisen after incidents in 2015 or whether she was asserting that this was the case throughout.

32. During cross-examination, the applicant agreed that although he went to Town C after [X] was air-lifted, there he only stayed one night before returning to Town A.

33. I suspect that during the period when the parties were on good terms the applicant was more involved with [X] than the respondent is now willing to admit but for most of the period that he knew the respondent, he was only a visitor to the home for discrete periods. [X] has a father who lives in Queensland and I do not accept that the applicant had any substantial role in caring for [X].

34. I must consider the reputation and public aspects of the relationship.

35. Mr D said that he had known the applicant for 30 years and also knew the respondent. He gave evidence of having seen the parties together at (hobby) events in 2012, 2013, 2014 and 2015, at a camp in March or April 2013 or 2014, at a (animal) sale in 2013, at the (animal) clinic in Town D in March 2015 and at (hobby) events in Town A and Town H at least monthly during 2012, 2013, 2014 and 2015.

36. Mr D said that he had seen the parties together at Property A on occasions in 2014 when he visited the property and that he attended dinner at Property A twice when they were both there. He alleged that he heard [X] refer to the applicant as “Dad”.

37. Ms D said that she was aware from April 2012 (although she might be wrong about the year), that the applicant and respondent were in a relationship. She said that the respondent looked after her daughter on one occasion in September 2012 and wished her a happy birthday on Facebook in 2013. She alleged that she met members of the respondent’s family including her mother and younger brother and his girlfriend at barbecues.

38. Ms D said that the respondent and her son visited frequently after she moved to Town I in Queensland and that the applicant and the respondent slept in the same bed. She alleged that [X] called the applicant “Dad’. She alleged that the applicant told her in 2013 that he had moved to Property A and did not need all his old furniture.

39. She alleged that in 2014 the respondent began looking for jobs in Queensland but there was no detail around this claim and the respondent denied it.

40. It could be argued that Ms D’s assertion that she believed that her father and the respondent were in a de facto relationship is undermined by a New Employee / Change of Details form she completed on his behalf dated 20 January 2014. She gave his address as (employer omitted) and put herself down as his emergency contact. She also completed a Tax File Declaration for him dated 21 January 2014.

41. However, Ms D clearly did not approve of her father’s relationship with the applicant and this might have been behind how she filled in this form. Ms D said that she and her father stopped talking at the beginning of 2014 as she was worried that the respondent was using her father.

42. Ms M gave evidence in support of the respondent. She said that she was a close friend of the respondents and had never heard her say that she was in a de facto relationship with the applicant. She said that she knew the applicant by sight but said that he was never present at any special family events she had been invited to such as [X]’s birthday.

43. Ms M’s evidence does not assist me. She is not qualified to give an opinion about whether a de facto relationship existed. However, the evidence of Ms D and Mr D does no more than establish that the parties had a friendship or association. There was no evidence from anyone that they viewed the applicant and respondent as a couple to the point where they were jointly invited to events or referred to as partners.

44. In September 2015, the applicant accessed the house through a broken side window in order to collect property. The respondent called the police and Apprehended Domestic Violence Order was taken out for the respondent’s protection on 15 September 2015. On 22 February 2016 the applicant was convicted of break enter and steal.

45. The applicant sought to rely on the fact that when the police applied for an ADVO for the protection of the respondent, they described the parties as having been in an intimate domestic relationship for approximately four years.[8] Presumably the implication he wished the court to draw was that the police must have said that because that was how the applicant described the relationship. However, there is no evidence that the police relied on something the respondent said and in any event the fact that the police said that does not establish that the parties were in a de facto relationship for the purposes of the Family Law Act.

    [8] Exhibit H

46. The term “domestic relationship” is defined in the Crimes (Domestic & Personal Violence) Act 2007 as follows:

    (1)     For the purposes of this Act, a person has a "domestic relationship" with another person if the person:

    (a)     is or has been married to the other person, or

    (b)     is or has been a de facto partner of that other person, or

    (c) has or has had an intimate personal relationship with the other person, whether or not the intimate relationship involves or has involved a relationship of a sexual nature, or

    (d)     is living or has lived in the same household as the other person, or

    (e) is living or has lived as a long-term resident in the same residential facility as the other person and at the same time as the other person (not being a facility that is a correctional centre within the meaning of the Crimes (Administration of Sentences) Act1999 or a detention centre within the meaning of the Children (Detention Centres) Act 1987 ), or

    (f) has or has had a relationship involving his or her dependence on the ongoing paid or unpaid care of the other person, or

    (g)     is or has been a relative of the other person, or

    (h)     in the case of an Aboriginal person or a Torres Strait Islander, is or has been part of the extended family or kin of the other person according to the Indigenous kinship system of the person's culture.

    Note : "De facto partner" is defined in section 21C of the Interpretation Act1987.

47. The reference by the police to an “intimate domestic relationship” clearly points to the ground being relied on as being (c).

Conclusion

1. It is clear from the evidence that since the end of the parties’ relationship they have both been aggrieved about matters to do with the possession of (animals) or alleged financial misconduct by the other.

2. The applicant alleged that the respondent unjustifiably helped herself to a large amount of money from his bank account over a period of two years and that she retained some of his possessions at separation and retained (animals) in which he had an interest.

3. The respondent said that she only ever took money out of the applicant’s bank account to pay for joint purchases arising out of a business venture involving (animals). She alleged that the applicant broke into her house and a locked shipping container in or around September 2015 and took whatever he wanted and that he took and retained one of her (animals).

4. The applicant may have considered that making an application for a property settlement would help him to recover money or (animals) if indeed he was entitled to them but it was not a good choice because the evidence does not support a finding that the parties were in a de facto relationship.

5. The parties did not live continuously together at Property A for the period implied in the applicant’s affidavit but that is not by itself fatal to the applicant’s case.

6. It is not essential for the purposes of establishing a de facto relationship to establish common residence throughout; there are even cases where it has been found that a de facto relationship existed in circumstances where there was never a common residence.

7. Insofar as the word “relationship” encompasses matters such as a connection or an association, I am satisfied on the balance of probabilities that the parties had a relationship between April or May 2013 and June 2015. They socialised together (although that may have ended in early 2015) carried out joint ventures buying (animals) and breeding (animals), had a sexual relationship and the applicant lived at the respondent’s home for two or three months. I incline to the view that he did do some work when he was at the property and that he did do some things with [X].

8. However while members of their families met and there was evidence of other people seeing them together from time to time, there was no evidence that they were regarded as a couple so that they were invited to social events as a couple or routinely spent Christmases and birthdays together. They did not financially support each other and there was no evidence that they jointly planned a future together.

9. There is a strong flavour in the evidence that the applicant would have liked a different relationship, a marriage like relationship where the parties shared a residence and were committed to a shared life but the respondent was fixed at Property A and was never willing to move from there, the respondent was not willing to give up his preference for living in Queensland and live permanently in Town B and there was no evidence of the respondent pressing the applicant to join her at Property A.

10. The applicant bears the onus of proof and I cannot be satisfied that the parties were in a de facto relationship at any time. I intend to make a declaration that the parties were not in a de facto relationship and to dismiss his application for property settlement orders.

I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date:         12 October 2018