Gilliam & Barre - [2022] FedCFamC1F 465

Federal Circuit and Family Court of Australia
(DIVISION 1)
Gilliam & Barre [2022] FedCFamC1F 465

File number(s): SYC 342 of 2019

Judgment of: HARPER J

Date of judgment: 4 July 2022

Catchwords: FAMILY LAW – DE FACTO RELATIONSHIPS – Existence of relationship – Wife seeks declaration under s 90RD of the Family Law Act 1975 (Cth) and orders for property adjustment under s 90SM – Husband denies existence of de facto relationship – Parties involved in concurrent proceedings with husband’s ex-wife, where the wife is a creditor – Both parties self-represented – Where both parties had difficulty focusing on the key issues in the case – Both parties have children from previous relationships – Wife contends relationship commenced in May 2016 and a de facto relationship commenced in June 2016 – Husband concedes existence of relationship, but that it was no more than boyfriend and girlfriend – Parties separated for brief period between December 2016 and February 2017 – Finding made that parties were in a relationship from May 2016 until 21 November 2018 – Wife argues common residence maintained between the parties’ two homes – Although parties spent regular time at each other’s houses, insufficient evidence to find a common residence – Where wife made substantial loans to the husband – Where loans were applied to husband’s personal expenditure and businesses – Finding made that the parties were financially interdependent to a material degree – Parties held no real property together – Parties acquired and used a scaffolding business together, however wife was neither director nor shareholder – Money generated by this business used to pay wife’s rent – Where parties placed focus on a ring and card given by the husband to the wife – Ring and card equivocal evidence of mutual commitment – Parties were involved in the care and support of each other’s children – Relationship had a public aspect, with parties spending regular time together and with each other’s family – Parties shared Christmas and birthday celebrations – Declaration made that de facto relationship existed, commencing not before February 2017, and ending prior to November 2018, a period less than two years – Declaration made that the wife’s loans were a substantial contributions of the kind mentioned in s 90SM(4)(a)–(c) – Where failure to make declaration may result in serious injustice to the wife under s 90SB(1)(c)(ii) – Proceedings to be mentioned to receive further submissions on the question of serious injustice and whether property adjustment under s 90SM should be ordered.

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

Cases cited:
Barre & Barre [2021] FamCA 101

Barre & Barre and Ors [2020] FamCA 455

Barre & Barre; Gilliam & Barre [2019] FamCA 315

Barre & Barre (Superannuation) [2021] FamCA 463

Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59

Delamarre & Asprey (2014) FLC 93-616; [2014] FamCAFC 218

Fairbairn v Radecki (2022) 400 ALR 613; [2022] HCA 18

Harriot & Arena (2016) FLC 93-702; [2016] FamCAFC 69

Lee & Hutton (2013) 50 Fam LR 322; [2013] FamCA 745

McMaster v Wilkie-Snow [2011] ACTSC 183

Miller & Trent (2011) 250 FLR 387; [2011] FMCAfam 324

Muschinski v Dodds (1985) 160 CLR 583; [1985] HCA 78

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

Smoje v Forrester [2017] NSWCA 308

V & K [2005] FCWA 80

Division: Division 1 First Instance

Number of paragraphs: 169

Date of hearing: 1–2 October 2020, 22–23 December 2021, 24–25 March 2022

Place: Sydney

The Applicant: Litigant in person

The Respondent: Litigant in person
ORDERS

SYC 342 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS GILLIAM

Applicant

AND:
MR BARRE

Respondent

order made by:

HARPER J

DATE OF ORDER:

4 July 2022

THE COURT DECLARES THAT:
1.Pursuant to s 90RD of the Family Law Act 1975 (Cth) (“the Act”), a de facto relationship existed between the Applicant Wife (“the wife”) and the Respondent Husband (“the husband”) for a period of less than two years, commencing no earlier than 1 February 2017 and ending by 21 November 2018.
2.The wife made substantial contributions of the kind mentioned in ss 90SM(4)(a), (b), and (c) of the Act, during the period of the said de facto relationship.
3.Each of the parties was ordinarily resident in NSW during the said de facto relationship, being a participating jurisdiction within s 90RG of the Act.

THE COURT ORDERS THAT:
4.The proceedings be stood over to 19 July 2022 for Mention at 10.30 am.
5.The husband provide a copy of this judgment to his Trustee in Bankruptcy.
6.On the adjourned date, the parties and the Trustee in Bankruptcy shall inform the Court:
(a)Whether they wish to adduce or make any, or any further, evidence or submissions on the question whether the wife would suffer serious injustice within s 90SB(1)(c)(ii) of the Act if the Court failed to make an order for property adjustment pursuant to s 90SM;
(b)Whether any claim for spousal maintenance is pressed by the wife; and
(c)Whether the Court should determine the remaining questions by written submissions and in chambers.

7.By no later than 4.00 pm on 15 July 2022 the parties shall exchange a minute of proposed procedural and final orders, including any proposal for final property adjustment orders pursuant to s 90SM of the Act, in the event the Court determines it has jurisdiction by reason of the satisfaction s 90SB(c)(ii) of the Act.
8.The Amended Application in a Case filed by the wife on 2 September 2020 be 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 Gilliam & Barre has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARPER J:
INTRODUCTION

These proceedings concern a relationship between the Applicant Wife, Ms Gilliam (“the wife”) and the Respondent Husband, Mr Barre (“the husband”).
The wife commenced these proceedings in January 2019. She seeks a declaration pursuant to s 90RD, Part VIIIAB of the Family Law Act 1975 (Cth) (“the Act”) that a de facto relationship between the couple existed between June 2016 and December 2018, and orders for property adjustment under s 90SM of the Act. The husband denies that a de facto relationship existed, for any period, and resists any orders for property adjustment.
The same parties are also involved in proceedings SYC 6149 of 2016 (“the 2016 proceedings”), which concern enforcement of a binding financial agreement and parenting disputes between the husband and his former wife, Ms Barre, who now goes by the surname “Haynes”. The two proceedings overlap, because the parties in both proceedings make claims in respect of at least some of the same property. Most of the substantive issues in the 2016 proceedings have been determined by my judgments in Barre & Barre [2021] FamCA 101 and Barre & Barre (Superannuation) [2021] FamCA 463.
The wife intervened in the 2016 proceedings as a creditor of the husband. Her status as a creditor was conceded by the husband. She was joined as a party by consent. During the course of the 2016 proceedings, I made a number of orders distributing amounts totalling $125,000 to the wife, characterised as part repayment of monies owing to her, as set out in Barre & Barre [2021] FamCA 101 at [18]–[19] and [409], leaving a balance owing of $108,000. See also Barre & Barre; Gilliam & Barre [2019] FamCA 315, and Barre & Barre and Ors [2020] FamCA 455 at [8].
However, the husband is presently bankrupt, and his Trustee in Bankruptcy (“the trustee”), who is a party to the 2016 proceedings and these proceedings, is currently restrained, by orders made in those proceedings, from distributing any dividend pending the compliance with certain orders in the 2016 proceedings and determination of these proceedings.
BACKGROUND
The history of the parties’ relationship will be explained and discussed in the course of these reasons, but some brief basic facts can be recorded here.
The wife was born in 1973, and the husband in 1972.
There are no children of the relationship. The wife has three children, XX, YY, and ZZ, from a previous marriage. The husband has three children from two previous relationships, Ms H, X, and Y. Ms H has reached majority. The husband is presently engaged in concurrent parenting proceedings in this court concerning X and Y with Ms Barre.
It is undisputed that the parties met in 2014, where they were working in offices close to one another. The wife was employed by WW Company, whilst the husband owned a company trading as “[EE Company]”.
PROCEDURAL HISTORY
These proceedings have taken an inordinate time to reach finality, caused by the manner in which the parties, who have been self-represented for most of the proceedings, presented their cases, their health problems, a range of misconceived and convoluted interlocutory applications, and the disruptions brought about by the Covid-19 pandemic. The somewhat tortured path the proceedings have taken will, as will become clear, influence the orders made on the basis of these reasons, and likely lead to the need for some further consideration.
The wife commenced these proceedings in the Family Court of Australia (as it then was) on 22 January 2019. At that point, she was represented. In addition to the declaration pursuant to s 90RD as to the existence of a de facto relationship and orders for property adjustment under s 90SM of the Act, she sought payment of $293,000 from the husband as a debt owed.
The wife also made an application for spousal maintenance and litigation funding which she pressed to be urgently listed. A registrar made orders listing these applications on 8 May 2019. On 27 March 2019, the wife filed an Application in a Case seeking review of this decision and an earlier listing date.
The review application was listed for mention on 8 April 2019. On that date, I made orders by consent for the parties to finalise their material concerning the wife’s final and interim applications. I also listed these proceedings for hearing for three days commencing on 6 May 2019. I was also made aware for the first time of the existence of the 2016 proceedings which, as it happened, were also listed on 6 May 2019. I noted that consideration would be given on that date to consolidating the two proceedings.
The husband’s then-solicitors filed a Notice of Ceasing to Act on 3 May 2019. As a result, when the proceedings came before me on 6 May 2019, the husband was self-represented. The wife was represented by counsel. The husband sought an adjournment of all proceedings. I observed the husband presented in court as emotional and, at times, confused in his submissions. The wife’s counsel fairly conceded that these proceedings could not proceed in the circumstances: Barre & Barre; Gilliam & Barre at [24]. I granted the adjournment and gave leave to the wife, on her application, to intervene in the 2016 proceedings. I directed these proceedings should be heard consecutively with, and following the 2016 proceedings. The wife was joined as the Third Respondent in the 2016 proceedings and the sum of $25,000 was released to her, as well as other parties, from a Controlled Moneys Account.
It should be noted that there was no dispute, in the 2016 proceedings, that the wife was a creditor of the husband, as between the wife and the husband. Ms Barre did not concede this factual point, but nor did she actively challenge it. As between the wife and the husband, the outstanding dispute concerned the quantum of the remaining debt. The wife and the husband ultimately agreed at final hearing of the 2016 proceedings that the quantum was $228,000.
On 6 November 2019, trial directions were made and the matter listed for final hearing commencing on 5 February 2020 with an estimate of three days, immediately after the final hearing of the 2016 proceedings which were listed to commence on 3 February 2020. The parties were also ordered to attend mediation in January 2020.
The husband obtained further legal representation in November 2019, however he again became self-represented shortly after, in December 2019. On 7 January 2020, the wife’s then-solicitor also filed a Notice of Ceasing to Act. She became self-represented from this date onwards.
No mediation ever took place. During the trial of the 2016 proceedings, it became apparent that the husband, then self-represented, had a range of medical issues which prevented those proceedings from continuing. The wife eventually agreed that these proceedings could not commence on 5 February 2020 in those circumstances, and they were adjourned to 7 February 2020 for further mention. On 7 February 2020, I made orders for the husband and the wife to file and serve written submissions in the 2016 proceedings. However, those proceedings were not in fact completed until 18 December 2020 because of the intervening bankruptcy of the husband and numerous further applications made by the wife principally, but also the husband, as explained in Barre & Barre [2021] FamCA 101 at [61]–[75], and summarised as follows.
On 17 April 2020, I made further trial directions and relisted the matter for final hearing commencing on 1 October 2020 for two days.
On 18 August 2020, a Notice of Address for Service was filed on behalf of Mr UU as Trustee in Bankruptcy for the husband. The husband had been made bankrupt on his own petition, I assume in accordance with s 55(4A) of the Bankruptcy Act 1966 (Cth). The trustee was made a party to these proceedings.
On 2 September 2020, the wife filed an Amended Application in a Case seeking a raft of orders, many of which appeared to lack any jurisdictional basis. They included orders for these proceedings to proceed on an undefended basis, for Ms Barre to be joined as a party, injunctions restraining the husband’s trustee from dealing with the property pool, and a range of costs orders. On the first day of trial, the wife stated that she would not pursue this application (Transcript 1 October 2020, p.14 lines 11–27).
I made a notation on 4 September 2020 for the court to be informed as to whether the husband’s trustee proposed to take any active part in these proceedings, or whether the trustee would consent to the husband conducting his defence as a self-represented litigant. On 14 September 2020, I was advised that the trustee would appear by counsel at the final hearing.
On 18 September 2020, the wife filed an urgent Application in a Case in the 2016 proceedings seeking orders ex parte. She amended this application on 24 September 2020. She appeared to believe this application could preserve assets for her benefit in these proceedings. Unfortunately, the orders sought in this application made little sense, and again, some lacked a jurisdictional basis. She sought, amongst others, orders for an injunction restraining the NSW Land Registry, who is not a party, from dealing with a property situated at 2 G Street, Suburb B, and the husband from dealing with any real estate or companies in which he had an interest.
The final hearing of these proceedings commenced on 1 October 2020. Counsel instructed by the trustee appeared on 1 and 2 October 2020 on behalf of the husband. The wife was self-represented. She remained so for all the final hearing dates. After the hearing had commenced, the wife pressed for her Application in a Case of 24 September 2020 in the 2016 proceedings to be dealt with. Time was taken seeking an understanding of the purpose and basis of this application, which was obviously filed in different proceedings, and had clearly not been listed for hearing on 1 October 2020. That application was later dismissed on 8 March 2021: Barre & Barre [2021] FamCA 101 at [414].
The wife then said that she would prefer to present her case after the husband, that is, she wished to cross-examine the husband’s witnesses first. Counsel for the husband, very fairly, did not have any difficulty with the husband’s witnesses being interposed and cross-examined first, prior to any cross-examination of the wife. As explained later in these reasons, during the hearing the wife cross-examined three of the husband’s witnesses, Ms VV, Mr AB, and Ms AC.
Prior to the commencement of the second day of hearing on 2 October 2020, the wife submitted a medical certificate which stated that she was not fit to proceed. On the morning of 2 October, the wife told the court that she had taken some medication which made her drowsy, rendering her unable to attend at 10.00am to recommence the trial as scheduled. She was not present at court at 10.00am. The matter was eventually called on at 11.00am. Although the wife then claimed that she could press ahead in order to minimise the risk of an adverse costs order against her, I was not satisfied, given her presentation in court and the fact that she was self-represented, that it would be procedurally fair for her to be cross-examined or to cross-examine in circumstances where she was exhibiting some degree of disarray and vulnerability. The proceedings were accordingly adjourned to a date to be fixed.
Final submissions on all issues other than superannuation were received in the 2016 proceedings on 18 December 2020, and judgment on the bulk of the substantive issues was delivered on 8 March 2021. As already mentioned there remain outstanding the interlocutory orders restraining the trustee from distributing a dividend.
These proceedings were then mentioned on 10 May 2021, when I noted that in light of the likely sale of parcels of real property, pursuant to orders made in the 2016 proceedings, and the husband’s bankruptcy, the proceedings should be adjourned to 10 August 2021. Thereafter, by reason of the disruptions caused by the Covid-19 pandemic, the proceedings were unable to resume until 22 and 23 December 2021. Although the trustee maintained a solicitor on the record, the husband had again become self-represented. I was provided no explanation as to why the husband appeared self-represented. The hearing was again adjourned part heard, because the parties were unable to confine their cases to the time allocated.
On 25 January 2022, the trustee filed a Notice of Withdrawal as Lawyer.
The final two days of hearing occurred on 24 and 25 March 2022. Again, both parties were self-represented.
ORDERS SOUGHT
The wife sought a wide range of orders in her Case Outline filed on 17 December 2021. Most of them concerned procedural issues and claims for spousal maintenance, which rely upon a finding of jurisdiction. It is unnecessary to set out these proposed orders in full here. The relevant orders were for a declaration under s 90RD of the Act that:
(a)A de facto relationship existed between the wife and the husband;
(b)The period of the de facto relationship for the purposes of s 90SB(a) was between June 2016 and late December 2018;
(c)In the alternative, a de facto relationship existed between the wife and husband for no less than two years ending in December 2018;
(d)The wife made substantial contributions overall pursuant to ss 90SM(4)(a)–(c); and
(e)Failure to make a declaration that a de facto relationship existed between the wife and husband would result in a serious injustice to the wife.

The husband sought that the wife’s application for final declarations and orders be dismissed, arguing that the court would not find the existence of a de facto relationship, nor would the court find that the wife made any substantial contributions to the relationship.
EVIDENCE
The parties each sought to rely on an extensive range of documents, many of which were not relevant for the issues to be determined. It is not necessary to set out their lists in full. The husband also relied upon eight witness affidavits, three of whom were cross-examined by the wife.
The following documents were received into evidence:

Exhibit Label Document Tendered by

A Exhibits to affidavit filed May 2019 Applicant

B Exhibit to affidavit filed 22 January 2019 Applicant

C Email about previous family law proceedings sent by the Respondent to the Applicant dated 3 December 2016 Subject Fwd: Parenting matter Applicant

D Physical card give to the Applicant from the Respondent about the proposal Applicant

E Ring given to the Applicant by the Respondent Applicant

F Affidavit filed and sworn by the Applicant on 29 April 2019 in the 2016 proceedings Applicant

G Single page of message from Mr AD to PA – Mr Barre dated 22 October 2018 marked CG - 22 Applicant

H Emails between the Applicant and Ms AE dated 25 June 2018 Subject Re:visit 1/7/18 Applicant

I Single photo of the Applicant and Respondent and children Applicant

J Single page printout of text messages date Mon, 4 June – Res offers year is 2017 Applicant

K Single page photograph of the Applicant and Ms VV dated 28 September 2016 Applicant

L Emails between the Applicant and Ms AG dated 7 November 2018 Subject RE: appointment address Mr Barre appointment today Re-Possible Parental Alienation Applicant

M Single page text message from ‘[Ms AH]’ dated 26 July 2017, 2:00PM Applicant

N Emails between the Applicant and Respondent dated 12 September 2016 Subject Fwd: Suburb AJ property details attached Applicant

O Emails between the Applicant and Mr AK dated 29 August 2018 Subject Re: appointment Mr Barre & Ms Gilliam Applicant

P Emails between the Applicant and Respondent dated 16 August 2017 Subject Re: Ms AL at FF Public School Applicant

Q Emails between the Applicant and Respondent dated 12 June 2018 Subject Re: Cars Applicant

R Emails between the Applicant and Mr V dated 30 May 2018 subject Re: Your Family Law Matter Applicant

S Transcript 4 February 2020 Applicant

T Single page print out of an email from the Applicant to the Respondent dated 29 November 2018 titled “Fwd: Payment of invoice” Applicant

U Single page print out of a Payment sent Reference no.... dated 13 June 2018 Applicant

V Single page print out of an email from AQ Company to Accounts dated 22 September 2018 Applicant

W Single page print out of Payment Successful from AO Company to Applicant dated 13 November 2018 Description Loan repayments Applicant

X 2x Binder folders of supervised contact reports Applicant

1 Respondent’s Tender Bundle Respondent

The husband filed a number of affidavits from witnesses giving evidence of their observations of the parties’ relationship. At the final hearing, not all the affidavits of these witnesses were received into evidence.
Ms H
Ms H is the husband’s daughter from a previous relationship. On the first day of hearing, counsel appearing for the husband informed the court that Ms H was unavailable to be cross-examined. In accordance with the Rules, the court made clear that no account would be taken of Ms H’s evidence unless she was made available. This did not happen, she was not cross-examined, and her affidavit was not read. I have not taken her evidence into account.
Mr AP
The wife informed the court on the first day of hearing that she intended to cross-examine Mr AP. As already noted, counsel for the husband agreed this could take place before the wife gave evidence. On the afternoon of the first day, counsel for the husband made clear that Mr AP would be available to give evidence on the second day, 3 October 2020. Mr AP was present for cross-examination in the precincts of the court. However, cross-examination did not happen because of the inability of the wife to proceed on the second day. The wife did not press for Mr AP to be cross-examined thereafter. However, since he was not cross-examined, I have not taken his evidence into account.
Mr AR
The affidavit of Mr AR was not read and he was not cross-examined.
I will discuss the balance of the husband’s other witnesses later in these reasons.
Each party asked questions of the other. I formed the view that both exaggerated their respective positions, with the wife claiming the parties had formed a de facto relationship almost immediately upon beginning a sexual relationship, while characterising almost every aspect of the parties’ interactions as confirming the de facto nature of their relationship. On the other hand, for the purpose of denying any de facto relationship, the husband diminished or trivialised, often quite implausibly, a number of significant events or aspects of their relationship. Neither party was entirely reliable, but on balance and broadly speaking, the evidence and arguments of the wife were better presented and more plausible than those of the husband. I do not accept the evidence of either party entirely, and will specify at the appropriate places in these reasons what evidence I have accepted.
THE LAW
Section 90RD empowers the court to declare a factual position, which the court must find before any jurisdiction to make property adjustment orders under Part VIIIAB is enlivened. Section 90RD of the Act provides as follows:
Declarations about existence of de facto relationships
(1) If:
(a) an application is made for an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL; and
(b) a claim is made, in support of the application, that a de facto relationship existed between the applicant and another person;
the court may, for the purposes of those proceedings (the primary proceedings), declare that a de facto relationship existed, or never existed, between those 2 persons.
(2) A declaration under subsection (1) of the existence of a de facto relationship may also declare any or all of the following:
(a) the period, or periods, of the de facto relationship for the purposes of paragraph 90SB(a);
(b) whether there is a child of the de facto relationship;
(c) whether one of the parties to the de facto relationship made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c);
(d) when the de facto relationship ended;
(e) where each of the parties to the de facto relationship was ordinarily resident during the de facto relationship.
…
It is important to remember that the period of the relationship and the question of contributions are also central to the exercise of any discretion pursuant to s 90SM. The property adjustment provisions applying to de facto relationships fall within Division 2 of Part VIIIAB. Section 90SB requires certain further factual findings before orders can be made pursuant to s 90SM:
90SB When this Division applies—length of relationship etc.
A court may make an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL, in relation to a de facto relationship only if the court is satisfied:
(a) that the period, or the total of the periods, of the de facto relationship is at least 2 years; or
(b) that there is a child of the de facto relationship; or
(c) that:
(i) the party to the de facto relationship who applies for the order or declaration made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c); and
(ii) a failure to make the order or declaration would result in serious injustice to the applicant; or
(d) that the relationship is or was registered under a prescribed law of a State or Territory.
In the presentation of their cases, the parties were rather unfocussed. They spent a material amount of time in the hearing being argumentative and bickering with each other. As I understood her case, if the court finds a de facto relationship exists, the wife relies on ss 90SB(a) and (c). At the hearing, the wife emphasised paragraph (a) and focussed primarily on the period of two years. This distracted attention from her other contentions, namely that she made substantial contributions of a kind mentioned in ss 90SM(4)(a), (b) or (c), and that a failure to make the declaration or orders for property adjustment would result in serious injustice to her.
In summary, the kinds of contribution mentioned in ss 90SM(4)(a), (b), and (c) are contributions, both financial and non-financial, to the acquisition, conservation or improvement of, or otherwise in relation to, any of the property of the parties to the de facto relationship. They may also be contributions to the welfare of the family constituted by the parties and any children, including as homemaker or parent.
De Facto Relationship
Section 4AA of the Act sets out the definition of a de facto relationship, in the following terms:
De facto relationships
Meaning of de facto relationship
(1) A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b) the persons are not related by family (see subsection (6)); and
(c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has effect subject to subsection (5).
…
I provided to each party a copy of s 4AA to assist them to concentrate on the real issues.
There was no dispute that subsections (a) and (b) of s 4AA(1) are satisfied. The central issue was whether, having regard to all the circumstances of the relationship, the parties had a relationship as a couple living together on a genuine domestic basis.
Section 4AA(5) provides:
For the purposes of this Act:
(a) a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and
(b) a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.
There was no dispute that s 4AA(5) was relevant. The husband and Ms Barre were separated in 2015, before the alleged de facto relationship arose, and were not divorced until September 2017.
Section 4AA(2) sets out a statutory range of circumstances which may demonstrate the parties were in a de facto relationship. But, it should be remembered that s 4AA does not require the court to carry out a specific evaluation and/or weighing up of the factors in favour of and against a finding of a de facto relationship: Delamarre & Asprey (2014) FLC 93-616 at [18]; Harriot & Arena (2016) FLC 93-702 (“Harriot”) at [22].
Sections 4AA(3) and (4) provide that:
(3) No particular finding in relation to any circumstances 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 Harriot at [25] the Full Court explained:
These two subsections provide latitude to a judge in determining whether a de facto relationship exists, and they resonate with what was said by Fitzgerald J in Lynam v Director-General of Social Security (1983) 52 ALR 128 at 131 (emphasis added):
Each element of a relationship draws its colour and significance from the other elements, some of which may point in 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 or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.
In arriving at the composite picture, by reason of s 4AA(1)(c) the court must have regard to all the circumstances of the relationship, as well as the matters set forth in s 4AA(2) of the Act, with each to be given the weight the court thinks appropriate: Sinclair & Whittaker (2013) FLC 93-551 (“Sinclair”) at [51]–[54].
In Sinclair at [65], the Full Court explained that because the ultimate decision as to whether there is a de facto relationship at any given time is a decision for the court and not for the parties, the perception of the parties as to the nature of the relationship, while a relevant matter, cannot be determinative.
Recently in Fairbairn v Radecki (2022) 400 ALR 613 (“Fairbairn”) at [28] the High Court explained:
Section 4AA(1)(c) identifies the relationship which is the concern of the Act: "a relationship as a couple living together on a genuine domestic basis". The existence of such a relationship is determined having regard to "all the circumstances" of a relationship; significantly, those "circumstances" include any or all of the circumstances listed in s 4AA(2), and, by reason of s 4AA(3), no particular finding about any circumstance is necessary for there to be a de facto relationship. Consistently with the reality that human relationships are infinitely mutable, in determining whether a de facto relationship exists a court is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate [s 4AA(4)].
Several points should also be made here about the concept of “living together”. Living together is a broad concept, and does not require, for example, a single residence. In Smoje v Forrester [2017] NSWCA 308 at [42], when construing state legislation, the NSW Court of Appeal held that:
Whilst the state of living “together” does not require that the living occur at and from a single place, or that the two adults spend all of their time together at the same place, it will ordinarily include elements of interaction and sharing whilst engaging in activities associated with occupying the same place. Repeated visits for a singular purpose, without more, do not satisfy that description.
In Fairbairn the High Court explained at [33]–[39]:
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[26]. Two people, for any number of reasons, may not reside in the same residence, but nonetheless be in a de facto relationship in the sense required by s 4AA.
…
35…physical cohabitation at a single home or homes is not a necessary feature of an ongoing relationship whether by way of marriage or otherwise; it is not an irreducible minimum that all relationships must exhibit.
…
39…"Living together", consistently with authority, should be construed as meaning sharing life as a couple. Section 4AA does not prescribe any way by which a couple may share life together. Its language is sufficiently broad to accommodate the great variety of ways a de facto relationship may exist. That conclusion is supported by the varied factors listed in s 4AA(2). In a given case, some of the factors listed in s 4AA(2) may be relevant and some may be irrelevant; inevitably some may have greater prominence than others. A conclusion that a de facto relationship has ended may also arise because of factors not listed in s 4AA(2). Such a conclusion is mandated by s 4AA(3) and (4). In particular, s 4AA(4) is a statutory recognition that what may constitute a genuine de facto relationship is not be determined in the same way in every case by reference to rigid criteria that must always be satisfied. In that respect, the language of s 4AA(2)(b) does not assume that every de facto relationship must have a "common residence" to some "extent" and of some "nature". Such a construction is entirely denied by s 4AA(3).
(Footnotes omitted)
I observe here that the interplay of ss 4AA, 90SB, and 90SM shows there is overlap between the factual issues necessary to found jurisdiction, and those which may be necessary to establish an asset pool between the parties, or then for an assessment and evaluation of contributions either for the purposes of s 90SB(c) or s 90SM(4). For example, ss 4AA(2)(d) (“the degree of financial dependence or interdependence”) and (e) (“the ownership, use and acquisition of their property”) have potential to require factual findings which would also be relevant, or necessary, to findings about contributions.
I have considered all the circumstances of the case as presented to the court by the parties in their evidence, which was quite extensive, and their submissions. Although, as the High Court confirmed in Fairbairn, each case is different and not every statutory factor in s 4AA(2) will carry the same relevance or importance in every case, and not every circumstance in a relationship may be expressly covered by s 4AA(2), I have found it convenient and appropriate to discuss all the circumstances of the relationship by reference to the factors set forth in s 4AA(2).
EXISTENCE OF A DE FACTO RELATIONSHIP – SECTION 4AA(2) FACTORS
(a) the duration of the relationship;
Establishing the duration of a relationship clearly requires factual findings about when the relationship began and when it ended.
In final submissions, the wife was somewhat vague about the commencement of the de facto relationship, however I understand her position was that the parties commenced a relationship in May 2016, and in around June 2016, they became a de facto couple. She claims the relationship concluded on or about 23 December 2018.
The husband contends that the period of the relationship was from September 2016 to October or November 2018, however he claimed the parties were never more than boyfriend and girlfriend.
The wife identified June 2016 as the beginning of the parties’ de facto relationship because it was at this point the husband started to involve her in “all aspects” of his personal and business life. It was not clear what she meant by this and could not explain what aspects of the husband’s personal life she was referring to. She claimed that at about this time the parties established a business or businesses in the name of the husband, called EE Company and AV Company, and she commenced working in those businesses.
The wife did not explain very clearly why commencing work in the husband’s businesses was a marker of a de facto relationship. I infer from her evidence and submissions that in her mind at least, this was an indication that the parties had commenced some kind of joint enterprise which covered both their working and personal lives.
In her affidavit filed on 22 January 2019, she notes that “During 2016, [the husband] and I spoke about our future together and what we planned to do,” with the parties allegedly deciding that the husband would eventually sell EE Company and the related entities. She was unclear when in 2016 these discussions commenced.
She also alleges that by November 2016, the husband had been “asking me for months to leave my job and to work for his business”, which seemed to be more consistent with any joint enterprise involving the husband’s business not commencing until at least the end of 2016. The type of work, she noted during submissions, was that the husband
… sort of wanted me to oversee what was happening with his businesses – like, business [EE Company], and, you know, started, sort of, asking me to go into the office or do various things about setting up websites, you know, to register other businesses, sorting out infringement notices and things like that …
(Transcript 25 March 2022, p.265 lines 11–15.)

In the course of submissions, she argued that a company called DD Pty Ltd (“DD Pty Ltd”), registered in 2017, was actually a joint venture between her and the husband.
In support of her commencement date, the wife referred to a text message from the husband on 27 September 2018, which reads as follows:
…I’m clean and sober 11 months and we have been together over 2 ½ years you have stood by me and I have stood by you
And will do so
You really are my love fuck we are soul mates…
This message suggests the husband concedes the relationship would have commenced in approximately March 2016. Since the message was clearly sent in a moment of high emotion, I infer the reference to “2 ½ years” was not likely to be a precise timeframe and more like an estimate. Further, neither party suggested March 2016 as the likely point of commencement. However, I accept this message is more consistent with the wife’s evidence of the likely start of the relationship, and that the wife’s evidence should be preferred over the husbands in this regard. Apart from his own assertion, he has produced nothing in support of commencement as late as September 2016.
I accept that the parties’ commenced a relationship in about May 2016.
There was no dispute that the parties had a period of separation at the end of 2016. The husband asserted that the parties separated from late December 2016 until February 2017. The wife conceded they had a minor period of separation, but she was inconsistent in her assertions of when this occurred. In her affidavit evidence, she states that it was in January 2017, whilst during cross-examination it was said to be from around Boxing Day 2016 until mid to late January 2017. In the wife’s evidence, there was a copy of a Contact Report by AW Contact Centre dated 25 December 2016 concerning Y and X. This makes clear that the parties and their children were together on Christmas Day 2016, and the observed interactions were warm, suggesting a degree of integration between the families. It also showed an intact relationship at that date. I find the parties had a period of separation between Boxing Day 2016 and early February 2017.
The fact of separation leads me to infer that the parties did not work together jointly in a business to any meaningful extent before February 2017. After that, the evidence was not clear concerning the extent to which the wife may have worked in the husband’s businesses, although I accept that she did to some extent. DD Pty Ltd was then registered in November 2017. I accept the wife was employed in this business. I say more about DD Pty Ltd later in these reasons.
Both parties were clear that the relationship ended, but differed on the date. The wife said the relationship was definitely over by December 2018. The husband argued that it ended in September or October 2018.
Consistently with the wife’s case, in a referral letter from Dr AX to another doctor on 17 December 2018, the parties’ relationship was described as “long term”. However, this appears to merely record what the wife told Dr AX.
On the other hand, on 21 November 2018, the husband sent the wife a text message which stated as follows:
… I know that I’ve lost you forever and can’t handle it
You will find someone else better than me with no problems or baggage
I just want to die honestly
I’m going to knock myself out with pills pretty soon so I don’t have to think about the shit I’ve caused you deserve better
I couldn’t help the way I was so it’s not your fault that you got involved with a nutter I will do everything I can to get you back on your feet…
The husband’s comment that “I’ve lost you forever” indicates that, by this point, the relationship had broken down. This is supported by several text messages the husband sent to the wife in November and December 2018, which stated:
(f)“I said I will pay you back and I will’ it’s day by day atm” on 30 November 2018;
(g)“I always said that I would pay you back anything that I borrowed off you !!” on 1 December 2018;
(h)“You are being ridiculous I am paying your bills yeah. I’m paying you back as much money as I can when I can. I am going to pay you back yeah” on 18 December 2018; and
(i)“I’ll pay u back ever thing I borrowed as I have already started doing” on 31 December 2018.
These messages support an inference that the relationship had ended, or even that the parties had separated, and the wife was demanding repayment of the money she lent the husband. The messages support a finding that the parties were no longer in a relationship by 21 November 2018. The emotional bond between them was broken.
I find that the parties were in a relationship from approximately May 2016 until no later than 21 November 2018. This is for a period of approximately two years and six months. It is however, a different question as to when the relationship became a de facto relationship, if at all. I will return to this questions below.
(b) the nature and extent of their common residence;
The parties differed strongly in relation to this factor. In summary, the wife asserts that the parties maintained a common residence, comprised of the two dwellings they usually occupied, from approximately June 2016 until separation in December 2018. For his part, the husband maintains that there was no common residence and the parties merely visited each other’s homes, staying overnight no more than two nights per week commencing in approximately July or August 2016.
Suburb J and AZ Street
After the husband’s separation from Ms Barre in 2015, he lived at D Street, Suburb J (“the Suburb J property”). The husband owned and resided in this property at the commencement of the relationship, whilst the wife occupied a rental property at AZ Street, Suburb B (“AZ Street”).
The wife submits that she resided in the Suburb J property with the husband shortly after the relationship commenced, in approximately May 2016 until 18 September 2016, at which point the husband travelled to Country M for two weeks to visit his father. During this period, the wife resided at AZ Street until the husband’s return on 4 October 2016. From this time onwards, she states that the parties, together with their children, resided together between their two properties. Ms H, in particular, was said to have relocated to the Suburb J property, residing in the master bedroom on the top floor whilst the downstairs study was converted into a bedroom for the parties. The wife’s mother also resided in a flat at the rear of AZ Street, assisting with caring for the wife’s children at times when she was with the husband. In November 2016, the husband’s father relocated to Australia and resided in the basement of the Suburb J property for four months.
The wife also asserts that domestic duties were shared, and that she would cook for the husband and his children, wash up, clean both residences, attend to laundry, and undertake weekly grocery shopping. The husband disputes the sharing of any domestic duties. He asserts that since his separation from his previous wife, he has maintained his own home and had the services of a cleaner and housekeeper that would assist with cooking and laundry. Although the wife would cook on occasion, this was not in any sort of domestic capacity, and neither party would do any other domestic duties for each other.
The wife claimed that in November 2016 she commenced spending approximately 90 per cent of her time at the Suburb J property. It was also at this time that she reduced her hours at WW Company.
The question of the presence of the wife at the Suburb J property was the subject of the evidence of a number of witnesses.
Ms VV
Ms VV gave evidence that hers and the husband’s families have been close friends for over seven years. Following his divorce from Ms Barre, Ms VV says she assisted the husband by completing home duties due to his depression and substance abuse issues. She gave evidence that from approximately June 2016 until Christmas 2017, she attended the husband’s property at least twice a week to clean and assist with managing house duties. Ms VV’s husband was incarcerated during a time when the husband made use of her services, partly as a means of supporting her financially. Ms VV’s support for the husband increased when the husband’s father was residing in the Suburb J property, in that she also assisted with caring for him. Ms VV denies that the wife ever resided with the husband at the Suburb J property, noting that when she assisted the husband with the cleaning and laundry, for example, she did not observe any items in the property that would suggest an ongoing domestic relationship, such as female toiletries, photographs, or the wife’s clothing.
The wife responded to the affidavit of Ms VV in her affidavit dated 1 May 2019. She claimed Ms VV was a mutual friend of both parties, and agreed that she was involved in the parties’ lives, exchanging messages with the wife, collecting take away food on occasion, and that they were close enough for the wife to ask her to take care of the husband’s father in March 2017. The wife conceded that Ms VV did undertake some form of domestic duties for the husband, but contended this was on an ad hoc basis because Ms VV was not the type of person that would accept “handouts”, and wished to do something for the husband in exchange for his caring for her when her own husband was in prison. The wife refers to a text message she sent to Ms VV on 15 March 2017, where she asks, “Hey [Ms VV] are you out and about near [Mr Barre’s]?...” This exchange tends to support the view that each party maintained a residence which was viewed as specific to that party.
Ms VV was cross-examined by the wife on the first day of hearing. I found her to be a credible witness. I accept her evidence and prefer it where it differs from the evidence of the wife. I also accept her evidence supports the husband’s case that the wife did not reside at the Suburb J property to the extent claimed by the wife. I also accept that Ms VV’s evidence shows the wife was not exclusively providing support to the husband in 2016 and 2017 in performing domestic duties or providing care to the husband’s father.
Mr AB
Mr AB has been a friend of the husband’s for over ten years. He gave evidence that he performed works at the Suburb J property, and that during these times, he saw the wife only twice and saw no evidence that she resided there. He stated that the husband had referred to the wife as his “girlfriend”. Mr AB also stated that he helped the husband “with the management of his children and have supported him throughout his difficult time right up until his rehabilitation and afterwards”. Furthermore, Mr AB states that despite he and the husband’s children having numerous playdates at the Suburb J property, he does not ever recall seeing the wife present. Mr AB was cross-examined on the first day of hearing. I found him to be a credible witness I and accept his evidence.
Ms AC
Ms AC met the husband in 2013 and has, since that time, assisted the husband in purchasing and selling property, leasing, and other property matters. During 2017, she began receiving frequent correspondence from the wife in what she assumed was the wife’s professional capacity as the husband’s employee. Upon enquiries, Ms AC was informed that the wife was merely a “casual girlfriend.” She deposes that she speaks to the husband on at least a weekly basis, and would thus know if he were in a de facto relationship with the wife. The wife only seemed to dispute that correspondence with Ms AC commenced in November 2016, rather than 2017. She does not otherwise comment on the other assertions made. Ms AC was cross-examined on the first day of hearing. I found her to be a credible witness and I accept her evidence.
Mr BC
The husband and Mr BC have known each other in a professional and personal capacity for several years. Mr BC has assisted the husband and Ms Barre with changeover for their children, and has been doing so since May 2018. However, he says that he has never met the wife, despite visiting the Suburb J property on numerous occasions. The wife did not require Mr BC to be present for cross-examination. I accept his evidence.
Mr BA
Mr BA has been a friend of the husband’s for approximately ten years. The parties would meet often, and Mr BA would also visit the husband’s father. He states that he was not aware that the parties ever permanently resided together. The wife did not require Mr BA to be present for cross-examination. I accept his evidence.
Photos and digital movies
The wife tendered and relied upon numerous photos and digital movies of events and activities shared by the parties, such as social events, building works, holidays, and occasions when some of the children had meals or birthdays with the parties jointly. This evidence shows the parties together at their respective residences from time to time between about October 2016 and late 2018. But, many items of this evidence also showed the parties socialising at public locations, not at the home of either. To this extent, the evidence did not shed much light on the question of a common residence.
The husband’s father
In her evidence, the wife stated that she was engaged in a number of domestic tasks, including cooking, cleaning, laundry, and the groceries. During 2017, the husband’s father’s health declined due to dementia, during which the wife provided support. In her evidence, Ms VV recalled assisting the husband’s father when he first arrived from Country M, but denied ever requesting that the wife assist with his care. She claimed in her evidence that the husband’s father did not like the wife, and that this was a constant source of conflict between the parties which often led to the wife sneaking into the husband’s bedroom to spend time with him to avoid being seen. The wife denies this. The husband similarly asserts that the wife was not involved in the care of his father.
I do not accept the assertion that the wife was never involved in the care of the husband’s father. A supervised contact report of 7 May 2017 notes that the wife had taken the husband’s father for a walk due to his Alzheimer’s. A further contact report from 29 April 2018 indicates that the wife had gone to pick up the husband’s father so they could attend a barbecue with the parties and their children. On that same occasion, she then drove the husband’s father back to his nursing home. Whilst these are two isolated occasions, the evidence supports the conclusion that the wife was involved in the ongoing care of the husband’s father from time to time.
Husband’s breakdown
The wife gave evidence that during 2017 she provided assistance to the husband, who was drinking more, by preparing meals, encouraging him to eat and drink water, and to exercise. In November 2017, the husband was admitted to the BD Clinic as a voluntary inpatient for approximately three weeks, due to his suffering from severe mental illness and drug and alcohol addiction. He was discharged in late November 2017, following which the wife asserts the husband resided with her at AZ Street, due to his suicidal ideation which required nursing day and night. She also states that she assisted the husband by scheduling and attending his medical appointments, and organising his medications. The majority of domestic and caring duties was said to fall upon her as he was struggling with this health.
The husband denies any form of common residence, although admits that he spent approximately one week at AZ Street due to renovations in his flat at the rear of the Suburb J property. He otherwise accepts that he stayed overnight at that property from time to time.
In June 2018, the wife’s lease over AZ Street was terminated due to rental arrears and the poor condition of the property. At this point, she requested the husband provide assistance with obtaining new rental property for herself and the children. The husband asserts that she made this request because a landlord would be more likely to lease a property to a couple with children, than a single mother. The husband refused to do so, however states that he offered to pay the wife’s rent as a means of repaying the debt he owed to her.
Suburb BG
In July 2018, the wife commenced a lease over a property on BF Street, Suburb BG (“the Suburb BG property”). She states that the husband had leased the Suburb J property to friends from April 2018, and following this had moved in with the wife at the Suburb BG property with their children, and with the intention to purchase a rural property once the 2016 proceedings were finalised.
The husband denies any common residence, and in fact, alleges that the wife fabricated bank statements by replacing the name on the husband’s business bank accounts with hers, in order to secure the Suburb BG property.
The parties provided scant evidence about this property, perhaps because the relationship ended approximately four months later. Given the absence of evidence, I am not satisfied the parties maintained a common residence in the Suburb BG property at any time.
Conclusion
Despite her contentions that the parties maintained a common residence from approximately May or June 2016 onwards, there was no evidence, as the husband pointed out, that the wife changed her address to his residence on any official documents, such as her driver’s licence.
Having regard to all the evidence, I am unable to conclude the parties maintained a common residence at any time during their relationship, even if they clearly spent time in each other’s homes. They may have spent time in the same premises for social occasions, and special occasions such as birthdays, and routinely overnight or for some longer periods on occasion such as when the husband was recuperating. There were elements of interaction and sharing, sporadically in the same place. However, I find that the parties maintained separate homes. I find that the wife helped the husband with domestic tasks and care of his children, but he also regularly received support from others, such as Ms VV and Mr AB, quite separately from the wife. While I find each party regularly spent time in the home of the other, I do not find that the parties had a common residence, including a residence constituted by both their homes.
(c) whether a sexual relationship exists;
There was no dispute that the parties engaged in a sexual relationship. They differed on the dates during which this existed. The husband states a sexual relationship lasted from June 2016 until September or October 2018, whilst the wife argues it commenced in April 2016 and concluded in December 2018, apparently without any interruption. The wife’s contention in this regard seems less plausible in view of the admitted separation at the end of 2016 and the husband’s problems with addiction and substance abuse. I accept there was a sexual relationship from May 2016 until no later than 21 November 2018.
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
It was common ground that the parties did not have any joint bank accounts or credit cards, nor did they purchase any property together.
The wife argued she made significant financial contributions during the relationship upon which the husband depended. The wife had an interest in a property located at BH Street at the commencement of the relationship. The wife argued that she had $37,000 in cash as at May 2016. She then received $470,000 from the sale of BH Street from which she paid her former husband $70,000. She gave evidence, therefore, that during the relationship she disbursed all but about $10,000 of $437,000 in loans to the husband, money injected into his businesses, and the parties’ joint living expenses.
In 2016, the wife was working for WW Company, however in August of that year, she states she reduced her hours to 12 hours a week in order to spend more time assisting the husband with domestic duties and his businesses. The wife gave evidence that after the husband gave her the ring, which will be discussed later in this judgment, she worked for the husband’s businesses. On 16 November 2016, she left WW Company and worked for the husband until December 2018. However, she worked unpaid until January 2018, when DD Pty Ltd began to trade.

The wife gave evidence that the husband would request money frequently for purposes unrelated to his businesses, either saying exactly how much was needed or what he needed to pay. At his direction, the wife would deposit money into his bank account, make direct payments of some invoices, or give the husband cash. The money borrowed by the husband was applied for a range of expenses. For example:
(a)In or about February 2017, the husband requested money to bet on a horse which was racing at BK Racecourse. The wife loaned $20,000, in addition to funds for gambling expenses on numerous other occasions;
(b)In late 2017, the wife loaned money for the husband’s dental expenses; and
(c)In August 2018, the wife lent the husband money for hair follicle testing as part of the 2016 proceedings. These tests were a pre-requisite to the husband spending any time with the children. The wife states her loans were also applied to legal expenses for the 2016 proceedings and child support arrears.
The wife also asserts that she made a number of additional financial contributions to the husband in the region of $200,000, which was applied to joint living expenses and the husband’s businesses, including EE Company, F Pty Ltd, DD Pty Ltd, AV Company, and Barre Pty Ltd. Whilst admitting that the wife did provide funds of some form to the businesses, the husband asserts that this all formed part of the loans provided by the wife. These loans were said by the wife to have been made between October 2017 to November 2018, when the parties were working together to build their business, and was used to pay employee wages, contractors, business suppliers, and tax liabilities.
As regards joint living expenses, the wife said these included purchasing groceries and household items for the husband and his children, as well as meeting rental payments, utilities, and household expenses for AZ Street, which the parties allegedly resided in together. The husband, for his part, states that he did not attempt to provide financial support to the wife’s children, save for paying her rent for AZ Street as a means of repaying his debt. I discuss this below under (h) – the care and support of children.
The husband argued that these loans do not amount to a financial contribution by the wife to the relationship nor any form of financial support. I disagree. Although the payments made by the wife were loans, which have been repaid in part, they were also financial contributions and were timely and supportive in the sense that they enabled the husband to continue his business activities, including the payment of creditors, and to pursue lifestyle activities, such as gambling.
I am satisfied that the wife gave the husband substantial financial support during the period of the relationship, which included injecting some of her money into the operation of his businesses. I am also satisfied that the husband supported the wife financially in material respects. I find that the parties were generally financially interdependent to a material degree and dependent upon each other between September 2016 and November 2018.
(e) the ownership, use and acquisition of their property;
It is undisputed that the parties did not own any real property together, nor did they acquire any joint property during the period of their relationship. However, the wife asserts that the parties had frequent discussions about purchasing a property jointly, and that they intended to move to a large rural location in order to accommodate all the parties’ children. She states that they inspected properties in Suburb BL and Suburb BM.
The wife’s interest in BH Street at the commencement of the relationship has been mentioned above. I am satisfied that she used a substantial proportion of the proceeds of sale of this property for the parties’ joint benefit during the relationship.
The acquisition or use of DD Pty Ltd seems to have been for the benefit of both parties. It was a business which generated income, and was used to pay the wife’s rent from January 2018 until she moved to Suburb BG. There appeared to be no dispute that the operation of the business relied upon the husband’s business skills. However, the wife agreed she put none of her own money into DD Pty Ltd, and she was neither a director or shareholder. Consequently, the shareholding was held by the husband. I find the business of DD Pty Ltd was his property which was used for the benefit of both parties.
(f) the degree of mutual commitment to a shared life;
The evidence of a mutual commitment to a shared life was equivocal.
The parties placed extensive focus on a ring that was given by the husband to the wife following his visit to Country M in September 2016. This ring, which was tendered into evidence as Exhibit E, is what is known as a traditional Country M ring. The wife asserts that this was a proposal based on commitment and affection, following which she considered herself engaged to be married.
The husband argues that it was merely a friendship ring. He referred to other evidence, obtained from Google searches, to suggest that the ring represents merely friendship. He gave evidence that he has “bought about a thousand of these in my lifetime,” including one for his daughter, Ms H.
I do not accept the husband’s assertions. They are hard to reconcile with a card given by him in October 2016, which was marked as Exhibit D. The cover of the card had the printed words “For the love of my life, my wife,” to which the wife has added the word “future”, such that it reads “…my future wife.” Within the card is a pre-typed message, “I love our married life. You’re more than I could ask for in a best friend and a wife.” Again, the wife has inserted additional words such that it reads “I love our soon to be married life. You’re more than I could ask for in a best friend and a future wife.”
During the hearing, the wife explains that she made those additions because, at the time the card was presented, both she and the husband were still married to their previous partners.
The husband attempted in cross-examination to deny or trivialise the force of the card as evidence, saying that “I don’t think I would have purchased something like that…I don’t think it’s my style”, “it could have been done in gest” and purchased by someone else. Despite this, he does not deny that it is his handwriting that appears in the card. Whether or not the husband purchased the card is not very important. The point is that he conceded that he wrote upon it. Although the card is not dated, the husband did not dispute that the card was signed by him in October 2016.
The friendship ring and card are equivocal evidence of a mutual commitment. On the one hand, they suggest some degree of mutual commitment to a shared life. The husband used the word “wife” while the wife inserted the word “future” to indicate this was the direction in which the parties were moving.
I am satisfied that the husband purchased the card and gave it to the wife at a moment of high emotion, wishing to express the level of affection and commitment he felt towards her at the time in approximately September or October 2016. But, relationships change. Even if the parties felt a strong level of commitment to each other at that point in time, as already noted, they separated at the end of December 2016, about three months later, for about six weeks. Clearly, their level of commitment had dissipated by then.
The evidence satisfies me that while the parties had a degree of mutual commitment up to their separation in December 2016, it was to a limited degree.
Even if the wife now says she felt as if the parties were engaged, they were not actually engaged in the usual sense of a formal betrothal to be married. Neither party thereafter consistently conducted themselves as if they were engaged to be married, and of course, they did not marry at any point while the relationship lasted. I have already noted that the parties separated for about six weeks at the end of 2016. Perhaps more to the point, an engagement, even a more formal or traditional engagement, does not of itself demonstrate the existence of a de facto relationship. It is quite possible for a couple intentionally not to live together as a couple on a genuine domestic basis whilst engaged, because they prefer to do so only once married.
It is also telling, in this regard, that the wife gave evidence that in May 2017 the parties “reconfirmed our commitment to each other by performing a type of northern European ritual where we marked each other’s bodies”. Her understanding of this ritual as a reconfirmation is consistent with an earlier dissipation of their commitment to each other which required an overt act of affirmation.
As already mentioned, the wife gave evidence that throughout the relationship, the parties discussed buying property together. The wife states that during 2016, the parties spoke about their future, agreeing that the husband would eventually sell EE Company and its’ related entities, with the sales proceeds applied to the purchase of a property for the parties. She claimed they spoke in general terms of a rural property large enough to accommodate all their children. There was evidence of the husband sending electronic links to properties for sale, including a property at Suburb BL in November 2018.
However, the parties did not ever purchase a property together. I accept that they shared an aspiration from time to time to purchase a joint property, but it was never realised. This points to the limitations on the degree of mutual commitment to a shared life. Such commitment was expressed in words, but inconclusive actions betrayed its limitations.
I accept that during 2017, the wife began to loan the husband money to support his business, and at times for gambling, as explained more fully above under s 4AA(2)(d).
As already noted, the wife clearly held the view that from about September 2016, the parties were in a joint enterprise, which manifested itself in the financial interdependence and their mutual involvement in the husband’s businesses. Although registered in November 2017, the parties were involved in running DD Pty Ltd from January 2018, when it first started to trade. The concept of a “joint enterprise” is very broad. A finding that a joint enterprise or endeavour entered into for the purpose of advancing the parties’ material wealth can be relevant to the engagement of certain equitable principles to impose a constructive trust in a variety of situations, including domestic arrangements: Muschinski v Dodds (1985) 160 CLR 583 at 618–620; Baumgartner v Baumgartner (1987) 164 CLR 137 at 149. But the wife made no such claim here. She did not explain how the operation of DD Pty Ltd was a joint enterprise in any other sense, especially since it seemed to be undisputed that, although an employee, she had no management or decision-making role in its business.
According to the wife’s evidence, supported by copies of text messages, on 27 September 2018 the parties had an argument because she caught the husband looking up his ex-girlfriend on the internet. In the text messages, the wife says she could not hear the husband’s explanations, and did not care, and the husband said “don’t do this to us You know we have to be together” and “we are soul mates”. This evidence discloses both a high degree of a degree of closeness between the parties which had been marred by distrust in September 2018, and as pointed out earlier, by 21 November 2018 the relationship had soured and come to an end.
I conclude that the parties, over the course of the relationship, had differing levels of commitment to a shared life. The husband also said a number of times in cross-examination that he tried or wanted to leave the relationship on several occasions. Such assertions received some support by other facts. The commitment to a shared life clearly evaporated for a period of about six weeks at the end of 2016. The wife herself said the relationship ended because of a breach of trust. The level of commitment likely rose and fell at different points in the relationship for each party. Their commitment was mutual to a limited degree, which is hard to pinpoint, but it was not totally mutual, and I infer that one reason for the ultimate demise of the relationship was an eventual recognition by the wife that the husband’s degree of commitment to a shared life was less than her own.
(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
The relationship was not registered. This factor is irrelevant.
(h) the care and support of children;
It is the wife’s case that not only did she and the husband maintain two common residences, but that their children would, at times, reside with the parties together. As outlined above, she argues that she would undertake grocery shopping, cooking, and cleaning.
In particular, she provided assistance to Ms H, including with her employment, university assignments, and when she moved houses on two occasions. In her evidence, the wife provided copies of a number of text messages between herself and Ms H. In one, dated 31 December 2017, she states that “I love you like my own mom”, and on 6 February 2018, she describes the wife as the “best soon to be step mom evaaaa.”
In addition to Ms H, the wife asserts she provided assistance to the husband in caring for his two other children, Y and X. This involved attending contact visits, cooking, playing with them, accompanying them to their sports games, and caring for them when they were sick. She further states that she acted on the husband’s behalf at times, contacting the children’s school on his behalf to arrange meeting to discuss their welfare, and attending parent teacher nights with the husband.
In August 2016, the husband’s then-solicitor liaised with the wife to obtain her agreement to supervise contact visits between the husband and X and Y. Although Ms Barre refused her consent for this to occur, the husband’s agreement to such an approach is indicative of a great level of trust between the parties and a willingness on the husband’s part to allow the wife to play some part in the care of X and Y.
The husband denies most of these assertions, save for conceding that the wife was present for a few supervised visits with Y and X, albeit far less than the fifteen times she asserts. I do not accept this. Having regard to Exhibit X, which were the bundles of supervised contact reports, the wife was recorded as being present for at least fourteen of these occasions. These were regular weekly visits in December 2016, February 2017, and from mid-April to mid-May of 2017. These made up the vast majority of the contact reports provided.
During those visits, X and Y were recorded numerous times as seeming “comfortable when engaging with [the wife]”, whilst the wife herself was “affectionate and warm towards the boys.” Without setting out the detail of each report in full, I am satisfied that the wife was involved in caring for the husband’s children during these visits. For example, there is evidence that she prepared meals for them, played with them, and was generally present to supervise them. Whilst the wife was not present for the full duration of each visit, the reports indicate that she was involved in the care and support of the husband’s children.
The husband also acknowledges that the wife attended X’s parent teacher evening on at least one occasion, because he required her as a witness in the event Ms Barre made false allegations of assault against him, or that she attempted to assault him herself.
The wife also contends that the husband had a close relationship with ZZ, one of her children from a previous relationship. The husband denies ever attempting to parent the wife’s children. Without needing to set out each and every text message, there was evidence from screenshots tendered by the wife that the husband and ZZ were in regular contact. One notable text message from the husband asked “Are u in school today answer the question,” to which ZZ responded that she was at home working on her assignments. In response, the husband states “Ok send me a picture of what work you have done so far in your self homeschool?? I bet u still in bed and bullshitting away ?” This, and the other text messages, are indicative of the father taking a supervisory and disciplinary role in relation to ZZ, which is consistent with acting as a parent.
Although the husband denied providing financial support to the wife’s children, the wife provided some evidence of text messages between the husband and ZZ which suggests that the husband did provide financial support of some kind. In one text message on 16 July 2017, ZZ asks “So ahh the 50$ under the mat yea?” to which the husband responds, “Don’t ever second guess Mr Barre. Ok there’s $40.” Several days later, on 22 July 2017, there is evidence of a text message from the husband with a cash PIN, enabling ZZ to make a card-less withdrawal of $100 from the husband’s bank account. A similar transaction of $50 occurred on 19 August 2017. I am satisfied that the husband provided some form of financial support to ZZ.
Having regard to the evidence as a whole, I am satisfied that the parties were, routinely for several periods during their relationship, engaged in the care and support of each other’s children. Most of the clear evidence comes from 2017 and 2018. The evidence does not support a conclusion that the mutual parenting took place for the entire period for which the wife contends. It appears to have arisen initially by December 2016, but as already noted, the parties separated for a period between late December 2016 and February 2017. However, during 2017 and the first half of 2018, there was evidence, which I accept, that the parties gave care and support for each other’s children from time to time.
(i) the reputation and public aspects of the relationship.
The wife maintains that the relationship had a public aspect. On her own evidence, she first informed her pastor and children about the relationship in late 2016. She gives no specific month, but I infer it was after the time the husband provided the ring. The wife does not explain why she waited until late 2016 to tell her children and pastor of the relationship. However, her failure to do so is not consistent with a belief that a de facto relationship existed.
The husband asserts that the wife never attended any of his family functions, nor did they attend social events as a couple. He maintains that they did not have any mutual friends. Although the wife met the husband’s parents and Ms H, he states that all of them “did not like her immediately.”
It was the wife’s argument that there were no family functions, as the husband did not have an ongoing relationship with his brother, sister, or mother. Following his rehabilitation in late 2017, he did, however, reconnect with his mother. The wife met the husband’s mother on one occasion, during a supervised contact visit between the husband, X, and Y.
The wife maintained that the parties engaged in many social events together as a couple, including at BK Racecourse, where the husband’s horse raced, and sporting social nights for the children. The wife explains that they mainly socialised together with their children, and on weekends would have to adhere to the husband’s court orders in the 2016 proceedings with respect to X and Y, which limited the amount of time they spent together.
In her evidence, the wife cites a number of occasions and events the parties attended together, including the following:
(a)Ms H’s birthdays in 2016 and 2017. In 2016, the parties celebrated her birthday at the Suburb J property, and in 2017, they purchased a puppy for her;
(b)All the parties’ birthdays;
(c)Father’s Day in 2016;
(d)Christmas Day in 2016. The husband denies spending Christmas with the wife, stating in cross-examination that he asked her to leave the house on Christmas Day 2016 because he had guests over, which caused the wife to “carr[y] on like a second-hand lawnmower.” However, he later admits that this may have been on Christmas Eve. I accept that the parties spent Christmas together in 2016. A supervised contact report from Christmas Day in 2016 noted that “[X, Y, and the supervisor] arrived at 8am and were greeted by the wife and her children.” The report indicates that the wife and her children were still at the Suburb J property when X, Y, and the supervisor departed at midday;
(e)Christmas Day in 2017. The husband explained that a friend had been visiting him, and the wife, together with her children, attended in the afternoon for approximately an hour. The wife asserts that the parties spend the entirety of Christmas Day in 2017 together, firstly at AZ Street, before later travelling to the Suburb J property. Furthermore, there was a supervised visit between the husband, X, and Y;
(f)ZZ’s birthday in 2017, where the wife asserts that the husband hired a boat. In attendance were the parties, the wife’s children, and ZZ’s friends.
(g)Mother’s Day in 2017, where the husband, wife, and her children went go-karting and out for dinner. The wife provides a photograph taken at dinner which confirms the husband was present;
(h)Ms H’s boyfriend’s birthday in 2018. The wife attaches screenshots of a video from this occasion, which indicates that both parties were present; and
(i)A bonfire at Mr BA’s home, wherein the parties, as well as YY and his friend were present.

During the husband’s admission to the BD Clinic in November 2017, the wife visited on multiple occasions. The husband states that medical staff were informed that she was no more than a casual girlfriend, however the wife relied upon reports from the husband’s psychiatrist, in which she was referred to as the husband’s partner.
Furthermore, until November 2018, the wife was involved with the husband’s legal representation in the 2016 proceedings. She gave evidence that she would review information and meet with the solicitors as a de facto partner. This occurred with numerous solicitors, the husband having engaged at least five. Exhibit O comprises a lengthy email sent by the wife in August 2018 to a solicitor newly engaged by the husband in the 2016 proceedings. In it, she outlines a contravention hearing between the husband and Ms Barre, as well certain documents in relation to the financial dispute.
In Exhibit P, in an email chain between the husband and wife, the husband states “did u want to email her back baby and do that as my partner?”
Conclusion as to Existence of a De Facto Relationship
Section 4AA(3) of the Act provides that “No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.” Furthermore, the court is entitled, under subsection (4), 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.”
Guided by the statutory cautions in ss 4AA(3) and (4), in arriving at the composite picture of the relationship between the parties, it must be recognised that, as the previous discussion shows, many circumstances presented in the evidence are equivocal in that they can both support or undermine a finding that the parties had a relationship living together on a genuine domestic basis.
A relationship may exist and continue for a lengthy period during which it is close and intimate, involving mutual support, without ever becoming a de facto relationship in the sense that the parties have a relationship as a couple living together on a genuine domestic basis. It is also obvious that a relationship may exist for a time before it can truly be said to have become a de facto relationship for the purposes of Part VIIIAB of the Act.
Having considered all the circumstances, I am satisfied that the degree of mutual commitment to a shared life grew stronger over 2017 and most of 2018, until about September. I also give weight to the expressions of affection between the parties, the elements of interaction and sharing whilst engaging in activities involving their children, such celebration of Christmas and birthdays, the commitment shown by the wife in caring for the husband after his breakdown in November 2017, the degree of mutual financial support and the extensive loans given by the wife to the husband through 2017 and 2018, and the nature of their relationship as involving some elements consistent with a joint enterprise. I find that the parties eventually developed a relationship as a couple living together on a genuine domestic basis so as to constitute a de facto relationship under Part VIIIAB of the Act.
However, on the evidence, I cannot determine when the relationship became a de facto relationship, except to conclude that I am unable to find that the relationship reached this point at any time before February 2017. In fact, it was probably later. I say this because it implausible that the relationship became a de facto relationship in June 2016, and despite the perception of the wife that she was “engaged” in October 2016, I am not satisfied the parties at that point, or even in December 2016, were living together as a couple on a genuine domestic basis. The preponderance of the evidence supporting such a conclusion clearly falls into 2017 and 2018, and the separation of the parties between later December 2016 and early February 2017 cannot be ignored. There is plausibility in the evidence of the husband that for the initial period up to the end of December 2016, the parties were developing a strong but at times brittle involvement, with a commitment which had its limitations. It can be said there was an absence of an enduring emotional bond. The fact of separation itself at the end of 2016 militates against a finding that a de facto relationship existed before the parties reunited in February 2017.
I have found that the relationship ended no later than 21 November 2018. In Fairbairn, the High Court said of the ending of a de facto relationship:
29. A de facto relationship will have broken down when, having regard to all the circumstances, the parties no longer "have a relationship as a couple living together on a genuine domestic basis". Such a conclusion is not precluded by the presence of an ongoing relationship of some sort. That is not the inquiry. The question is whether a de facto relationship exists or has broken down.
30. In the context of a human relationship, "breakdown" refers to the "end" or "breakup" of what had been an enduring emotional bond. It is the "breakdown" or "end" of a de facto relationship that is the trigger point for the Federal Circuit and Family Court to be seized of jurisdiction to make a property settlement order under s 90SM of the Act. It would make no sense for such a jurisdiction to arise before a de facto relationship had ended...
I find that the de facto relationship broke down and ended by no later than 21 November 2018.
I find that the parties had a relationship as a couple living together on a genuine domestic basis for a period of less than two years, commencing not before February 2017 and ending in November 2018.
EXERCISE OF DISCRETION – SECTION 90SB
Having determined that there was a de facto relationship between the husband and wife, before the court can exercise any discretion to make a property adjustment order under Part VIIIAB, it must then be shown that one of the conditions set out in s 90SB of the Act is satisfied before the court may make a property adjustment order under s 90SM. Section 90SB is set out at [43] above.
As already noted, the wife relied on subparagraphs (a) and (c). I have found that s 90SB(a) cannot be satisfied because the de facto relationship existed for less than two years.
As mentioned above, one of the problems created by the extended and disorganised manner in which the parties approached the determination of these proceedings, was that they distracted themselves by concentrating primarily on the question whether there existed a de facto relationship of two years or more, to the exclusion of the questions raised by s 90SB(c).
My conclusion as to the length of the de facto relationship leaves these questions to be answered, namely, did the wife make substantial contributions of a kind mentioned in ss 90SM(4)(a), (b), and (c), and if so, would a failure to make an order or declaration result in serious injustice to her.
In my view, there is more than sufficient evidence for the first question to be answered. It has been observed a number of times that it will be a matter of degree, in a relationship which lasts a short time, when a “normal” spousal contribution becomes “substantial”: V & K [2005] FCWA 80 (“V & K”); Miller & Trent (2011) 250 FLR 387 (“Miller”). In Lee & Hutton (2013) 50 Fam LR 322, Watts J observed that V & K has been followed and referred to other definitions of the word “substantial,” including “of ample or considerable amount, quality or dimensions”, “considerable or large” or “not illusory”.
In Harriot, the Full Court held at [64]:
Clearly the “substantial contributions” test is a subjective one. Any effort to elucidate its meaning by use of other words or phrases will simply replace one subjective test with another. It will remain a matter of impression whether the contributions are considered to be “substantial”. While recognising that the test is subjective, we are nevertheless inclined to agree with Thackray J, who said in Thorburn and Oswald [2007] FCWA 43 at [54] that a trial judge
would need to interpret the word “substantial” in the context of the financial position of the parties. What might appear to be a “substantial contribution” for people of limited financial resources, might not be substantial in a case involving very wealthy parties.
The evidence and submissions of the parties demonstrates clearly that it is open to conclude the wife made substantial contributions in all the circumstances of the case. I make such a finding. I refer to the undisputed loans and financial contributions made by the wife to the husband, which were likely in excess of $300,000. These, in the context of the short relationship, were substantial, allowing the husband to maintain and develop business interests and maintain aspects of his lifestyle such as gambling. I also refer to the wife’s care of his children, which I have found took place, and her contributions to supporting the husband’s interactions with his children at supervised visits. I am satisfied these contributions were ample or considerable.
The notion of “serious injustice” has been considered many times. In McMaster v Wilkie-Snow [2011] ACTSC 183, a judgment concerning s 15(1) of the Domestic Relationships Act 1994 (ACT), Besanko J at [44] embraced an ordinary meaning of “a considerable wrong or unfairness” although he also accepted the phrase could describe the requirement in terms of “significant or substantial unfairness”.
The difficulty in this case is that the fragmented and disorganised manner in which the proceedings progressed to hearing, as well as the manner in which the parties conducted the hearing, obscured any clear focus upon the question of whether serious injustice would be caused to the wife if an order for property adjustment was not made under s 90SM. I am not satisfied the husband understood that this was a question upon which he should make submissions. In particular, the wife made submissions about serious injustice by reference to her evidence of straitened financial circumstances. The husband did not address this question either. The answer to both these questions may well be materially affected by the husband’s bankruptcy. They may also be something in respect of which the trustee should be given an opportunity to put before the court evidence of the quantum of the husband’s bankrupt estate and the claims of creditors, and make submissions, if he chooses to do so. There will also remain the question whether any proposed property adjustment order would be just and equitable, about which the trustee, as well as the parties, may wish to make submissions.
I will declare pursuant to s 90RD that the parties were in a de facto relationship for a period less than two years, commencing no earlier than 1 February 2017 and ending by 21 November 2018, that the wife made substantial contributions of the kind mentioned in ss 90SM(4)(a), (b), and (c), and that each of the parties was ordinarily resident in NSW during the de facto relationship, being a participating jurisdiction within s 90RG of the Act.
The proceedings will then be mentioned to make any necessary directions for the parties, including the trustee, to make further submissions on the question of serious injustice, and property adjustment orders, if appropriate. It is also appropriate for the 2016 proceedings to be mentioned at the same time.

I certify that the preceding one hundred and sixty-nine (169) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper.
Associate:
Dated: 4 July 2022

File number(s):	SYC 342 of 2019
Judgment of:	HARPER J
Date of judgment:	4 July 2022
Catchwords:	FAMILY LAW – DE FACTO RELATIONSHIPS – Existence of relationship – Wife seeks declaration under s 90RD of the Family Law Act 1975 (Cth) and orders for property adjustment under s 90SM – Husband denies existence of de facto relationship – Parties involved in concurrent proceedings with husband’s ex-wife, where the wife is a creditor – Both parties self-represented – Where both parties had difficulty focusing on the key issues in the case – Both parties have children from previous relationships – Wife contends relationship commenced in May 2016 and a de facto relationship commenced in June 2016 – Husband concedes existence of relationship, but that it was no more than boyfriend and girlfriend – Parties separated for brief period between December 2016 and February 2017 – Finding made that parties were in a relationship from May 2016 until 21 November 2018 – Wife argues common residence maintained between the parties’ two homes – Although parties spent regular time at each other’s houses, insufficient evidence to find a common residence – Where wife made substantial loans to the husband – Where loans were applied to husband’s personal expenditure and businesses – Finding made that the parties were financially interdependent to a material degree – Parties held no real property together – Parties acquired and used a scaffolding business together, however wife was neither director nor shareholder – Money generated by this business used to pay wife’s rent – Where parties placed focus on a ring and card given by the husband to the wife – Ring and card equivocal evidence of mutual commitment – Parties were involved in the care and support of each other’s children – Relationship had a public aspect, with parties spending regular time together and with each other’s family – Parties shared Christmas and birthday celebrations – Declaration made that de facto relationship existed, commencing not before February 2017, and ending prior to November 2018, a period less than two years – Declaration made that the wife’s loans were a substantial contributions of the kind mentioned in s 90SM(4)(a)–(c) – Where failure to make declaration may result in serious injustice to the wife under s 90SB(1)(c)(ii) – Proceedings to be mentioned to receive further submissions on the question of serious injustice and whether property adjustment under s 90SM should be ordered.
Legislation:	Family Law Act 1975 (Cth) ss 4AA, 90RG, 90SB, 90SM
Cases cited:	Barre & Barre [2021] FamCA 101 Barre & Barre and Ors [2020] FamCA 455 Barre & Barre; Gilliam & Barre [2019] FamCA 315 Barre & Barre (Superannuation) [2021] FamCA 463 Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59 Delamarre & Asprey (2014) FLC 93-616; [2014] FamCAFC 218 Fairbairn v Radecki (2022) 400 ALR 613; [2022] HCA 18 Harriot & Arena (2016) FLC 93-702; [2016] FamCAFC 69 Lee & Hutton (2013) 50 Fam LR 322; [2013] FamCA 745 McMaster v Wilkie-Snow [2011] ACTSC 183 Miller & Trent (2011) 250 FLR 387; [2011] FMCAfam 324 Muschinski v Dodds (1985) 160 CLR 583; [1985] HCA 78 Sinclair & Whittaker (2013) FLC 93-551; [2013] FamCAFC 129 Smoje v Forrester [2017] NSWCA 308 V & K [2005] FCWA 80
Division:	Division 1 First Instance
Number of paragraphs:	169
Date of hearing:	1–2 October 2020, 22–23 December 2021, 24–25 March 2022
Place:	Sydney
The Applicant:	Litigant in person
The Respondent:	Litigant in person

SYC 342 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS GILLIAM Applicant
AND:	MR BARRE Respondent

order made by:	HARPER J
DATE OF ORDER:	4 July 2022

Exhibit Label	Document	Tendered by
A	Exhibits to affidavit filed May 2019	Applicant
B	Exhibit to affidavit filed 22 January 2019	Applicant
C	Email about previous family law proceedings sent by the Respondent to the Applicant dated 3 December 2016 Subject Fwd: Parenting matter	Applicant
D	Physical card give to the Applicant from the Respondent about the proposal	Applicant
E	Ring given to the Applicant by the Respondent	Applicant
F	Affidavit filed and sworn by the Applicant on 29 April 2019 in the 2016 proceedings	Applicant
G	Single page of message from Mr AD to PA – Mr Barre dated 22 October 2018 marked CG - 22	Applicant
H	Emails between the Applicant and Ms AE dated 25 June 2018 Subject Re:visit 1/7/18	Applicant
I	Single photo of the Applicant and Respondent and children	Applicant
J	Single page printout of text messages date Mon, 4 June – Res offers year is 2017	Applicant
K	Single page photograph of the Applicant and Ms VV dated 28 September 2016	Applicant
L	Emails between the Applicant and Ms AG dated 7 November 2018 Subject RE: appointment address Mr Barre appointment today Re-Possible Parental Alienation	Applicant
M	Single page text message from ‘[Ms AH]’ dated 26 July 2017, 2:00PM	Applicant
N	Emails between the Applicant and Respondent dated 12 September 2016 Subject Fwd: Suburb AJ property details attached	Applicant
O	Emails between the Applicant and Mr AK dated 29 August 2018 Subject Re: appointment Mr Barre & Ms Gilliam	Applicant
P	Emails between the Applicant and Respondent dated 16 August 2017 Subject Re: Ms AL at FF Public School	Applicant
Q	Emails between the Applicant and Respondent dated 12 June 2018 Subject Re: Cars	Applicant
R	Emails between the Applicant and Mr V dated 30 May 2018 subject Re: Your Family Law Matter	Applicant
S	Transcript 4 February 2020	Applicant
T	Single page print out of an email from the Applicant to the Respondent dated 29 November 2018 titled “Fwd: Payment of invoice”	Applicant
U	Single page print out of a Payment sent Reference no.... dated 13 June 2018	Applicant
V	Single page print out of an email from AQ Company to Accounts dated 22 September 2018	Applicant
W	Single page print out of Payment Successful from AO Company to Applicant dated 13 November 2018 Description Loan repayments	Applicant
X	2x Binder folders of supervised contact reports	Applicant
1	Respondent’s Tender Bundle	Respondent