HADZHIEV and PIONTEK
[2019] FCWAM 78
•5 JUNE 2019
JURISDICTION : MAGISTRATES COURT OF WESTERN AUSTRALIA AT 150 TERRACE ROAD
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: HADZHIEV and PIONTEK [2019] FCWAM 78
CORAM: MORONI M
HEARD: 20, 21, 22 & 23 MAY 2019
DELIVERED : 5 JUNE 2019
FILE NO/S: PTW 3482 of 2017
BETWEEN: MR HADZHIEV
Applicant
AND
MS PIONTEK
Respondent
Catchwords:
FAMILY LAW - Where a party brings a substantive claim under Div 2 of Pt 5A - Whether there was a de facto relationship and if so when it commenced and when it ended - Whether a party meets the relevant conditions established by s 205Z(1)(a) or (c) of the Act - Where material evidence is strongly contested - Where a party applies for Centrelink benefits - Where there are substantial cash transactions
Legislation:
Family Court Act 1997 (WA) Pt 5A, s 205V, s 205Z(1)(a), (c)
Interpretation Act 1984 (WA) s 13A
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Ms N Hossen |
| Respondent | : | Dr R Ingleby |
Solicitors:
| Applicant | : | FamLaw Legal |
| Respondent | : | Cobalt Legal |
Case(s) referred to in decision(s):
Nil
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
MORONI M:
INTRODUCTION
1The proceedings for determination comprise the initiating application of [Mr Hadzhiev] ("the Applicant") filed on 2 June 2017 and the response of [Ms Piontek] ("the Respondent") filed on 16 August 2017 (as amended on 2 April 2019).
2The substantive claim of the Applicant is for relief under Div 2 of Pt 5A of the Family Court Act 1997 (WA) ("the Act"). The Applicant seeks orders that the Respondent pay to him the sum of $268,000 and otherwise transfer to him her interest in a certain motor vehicle.
3The Applicant's case is that a de facto relationship existed between the parties, commencing in February 2014 and ending on 22 December 2016. In the alternative, the Applicant contends that if it is found that there was a de facto relationship which extended over a period of less than two years, he made substantial contributions of the types covered by s 205ZG(4)(a) and (b) of the Act and that a failure to make a substantive order in his favour would result in a serious injustice to him.
4The Respondent's case is that a de facto relationship never existed and that their personal relationship was something less than that. The Respondent acknowledges that the Applicant resided with her and her adult daughter in the latter's property at [Suburb A] from about July 2014 until late August 2015 but says that otherwise the parties have never resided together.
5The principal issues in contention are:-
(a)whether a de facto relationship existed between the parties;
(b)if so, when did it commence and when did it end; and
(c)if there was a de facto relationship of less than two years duration, has the Applicant met the conditions set out in s 205Z(1)(c).
COMPOSITION OF THE EVIDENCE
6The evidence‑in‑chief of the Applicant was comprised of his trial affidavit filed on 12 June 2018 and his responding affidavit filed on 8 May 2019.
7Although the Applicant's affidavits were not prepared with the aid of an interpreter, during the trial the Applicant was assisted by a professionally qualified [Country A] translator, namely, Ms L.
8On 12 June 2018 the Applicant filed seven witness affidavits, being those of:-
(a)his friend, [Mr H];
(b)his friend, [Mr G];
(c)his friend, [Mr C];
(d)his friend, [Mr K];
(e)his friend, [Mr M];
(f)his former mother-in-law, [Ms P]; and
(g)his former father-in-law, [Mr P].
9The Applicant did not rely on the affidavits of Ms P and Mr P and so they will be disregarded. All of the other deponents attended court for cross‑examination.
10The Applicant also relied on an earlier witness affidavit being that of [Mr R], registered builder, filed on 2 June 2017. Mr R also attended for cross-examination.
11The Applicant filed three subpoenas for witnesses to give oral evidence at trial, directed to:-
(a)[Mr J];
(b)[Ms J]; and
(c)[Mr S].
12Over the Respondent's objections, the Applicant was permitted to call all those witnesses.
13Mr and Ms J are the Respondent's current neighbours. Mr S is the parties' former neighbour when they resided at the Suburb A property.
14The evidence‑in‑chief of the Respondent was comprised of her trial affidavit filed on 2 April 2019, a document which is annexed to a short affidavit of hers filed in support of an interlocutory application.
15The Respondent filed six witness affidavits, being those of:-
(a)[Mr T], filed on 24 August 2017;
(b)her elder daughter, [Ms N], filed on 2 April 2019, another document annexed to the short affidavit of the Respondent filed on the same day;
(c)her friend and accountant, [Ms B], filed on 24 August 2017;
(d)[Mr D], filed on 16 August 2017;
(e)[Mr V], filed on 17 August 2017;
(f)[Mr I], filed on 17 August 2017; and
(g)[Ms Y], filed on 25 August 2017.
16The Respondent elected to rely only on the evidence of Mr T (who has carried out work at her property), her elder daughter and Ms B. Those three witnesses attended court and were cross‑examined. The affidavits of the four other deponents will be disregarded.
BRIEF FACTUAL BACKGROUND
17The Applicant is a 59 year old self-employed [mechanic] operating a mobile business who lives in shared rental accommodation situated in Suburb A.
18The Respondent is a 47 year old company director who lives with one of her daughters in a property owned by her and situated in [Suburb B].
19The Respondent is the sole director/shareholder of [Company A], a company which has conducted business importing goods from China.
20Company A holds half of the issued shares in [Company B], the other half being held by an entity under the control of her friend and witness, Ms B.
21The Respondent and Ms B are the only directors of Company B, a company which has only conducted business in a single project, the development of a property in [F] Street, Suburb A .
22The Respondent said that Company A has not been active for the last year or so.
23It is common ground that the parties met on or about 24 August 2013.
24Both parties have children from previous marriages. The Applicant has two children living with their mother who were aged 10 and 11 years at the time he signed his trial affidavit. The Respondent has two daughters both of whom are now adult.
25At the time the parties met the Applicant was living in rental accommodation situated in [Suburb C] and the Respondent was living in rental accommodation situated in [Suburb D].
26The Applicant's evidence is that the parties resided together, as follows:-
(a)from February 2014 until about June 2014 in the Respondent's rented Suburb D property;
(b)from about June 2014 until about February 2016 in the property at Suburb A owned by the Respondent's elder daughter; and
(c)from about February 2016 until 22 December 2016 in the Suburb B property owned by the Respondent.
27The Respondent says that the only place of common residence for the parties was the Suburb A property and that the period of common residence extended only from about July 2014 until late August 2015. However, her evidence is that the Applicant took up residence there, at his request and not by invitation, simply as a boarder, because he had nowhere else to live.
28It is common ground that on 24 January 2013, that is, well before the parties met, the Respondent became the sole registered proprietor of the Suburb B property, which at that stage was only a vacant block of land.
29The Respondent described the parties meeting for the first time as a matter of coincidence. The place they met was a McDonald's restaurant carpark. At that time, the Respondent's younger daughter, who was then only 16 years of age, was spending time with a young man known to the Applicant and who customarily referred to him as "uncle".
30It is common ground that shortly after their meeting the Respondent visited the Applicant at his mechanic workshop in Suburb E for the purpose of him carrying out some repairs to her motor vehicle. The Respondent said that one of her reasons for staying in contact with the Applicant was that she could gain a sense of the character of the young man spending time with her younger daughter. As it transpires, the young man in question is not actually the nephew of the Applicant, but calls the Applicant "uncle" out of respect. The Respondent said that she was concerned about the significant age difference between her younger daughter and the young man in question and so wanted to keep an eye on things.
31In July 2014 the Applicant closed his mechanic business and in September that year applied for Centrelink benefits. Subsequently, he was granted the Newstart allowance. He remained in receipt of Centrelink benefits until late 2016 when he started his present mobile mechanic business.
32The Applicant has been in the practice of purchasing damaged motor vehicles at auction, repairing them, licensing them and then selling them at a profit. After meeting the Applicant, the Respondent also purchased motor vehicles at auction, including the motor vehicle claimed by the Applicant in his initiating application. Taken into evidence were documents subpoenaed from Department of Transport which show the considerable extent of this activity.
33The Applicant is aware that a licence is required to conduct the business of selling motor vehicles to the public. However, he said that provided such transactions are limited to five per year it is not necessary for an individual like him to hold a motor vehicle dealer's licence.
34The Respondent entered into a building contract with the Applicant's witness, Mr R, for the construction of a new home on the Suburb B block. The build commenced in March 2014 and took a considerable amount of time to be completed. The Respondent moved into the Suburb B property on 19 February 2016. The Respondent and Mr R have had several contractual disputes. Mr R lodged a caveat against the title to the Suburb B property. It appears that the various disputes between them have now been resolved.
35It is common ground that whatever relationship existed between the parties after they met on 24 August 2013, it ended acrimoniously on or about 22 December 2016.
RELEVANT STATUTORY PROVISIONS
36The first key statutory provision is s 205Z of the Act which holds, relevantly, as follows:-
205ZWhere court may make order under this Division
(1)A court may make an order in relation to a de facto relationship only if satisfied —
(a)there has been a de facto relationship between the partners for at least 2 years; or
…
(c)the de facto partner who applies for the order made substantial contributions of a kind mentioned in section 205ZG(4)(a), (b) or (c) and failure to make the order would result in serious injustice to the partner.
…
37The second key statutory provision is s 13A of the Interpretation Act 1984 (WA) ("the Interpretation Act") which holds, relevantly, as follows:
13ADe facto relationship and de facto partner, references to
(1)A reference in a written law to a de facto relationship shall be construed as a reference to a relationship (other than a legal marriage) between 2 persons who live together in a marriage-like relationship.
(2)The following factors are indicators of whether or not a de facto relationship exists between 2 persons, but are not essential —
(a)the length of the relationship between them;
(b)whether the 2 persons have resided together;
(c)the nature and extent of common residence;
(d)whether there is, or has been, a sexual relationship between them;
(e)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(f)the ownership, use and acquisition of their property (including property they own individually);
(g)the degree of mutual commitment by them to a shared life;
(h)whether they care for and support children;
(i)the reputation, and public aspects, of the relationship between them.
…
GENERAL OBSERVATIONS ON THE EVIDENCE
38With a view to assisting the parties to understand the reasoning process underpinning these reasons, something might briefly be said about matters of evidence.
39The first and most basic point to make is that it is the Applicant who has carriage of the proceedings and who carries the burden of satisfying the Court that the relationship between the parties carries sufficient of the necessary indicators of a de facto relationship. That is, it is for the Applicant to prove, on the balance of probabilities, that the parties lived together in a marriage-like relationship. The onus is not upon the Respondent to prove the reverse.
40As for the evidence of the parties themselves and their various witnesses, there are some broad observations which may be made at this point.
41Unfortunately, it has to be said that there are good reasons to have serious doubt about the reliability of the evidence of each of the parties.
42To select one example regarding the Applicant, his evidence about the parties having an "engagement party" at the Respondent's home on the day of her 42nd birthday, is simply implausible.
43The parties had only met for the first time less than two months prior and in that period the Respondent had spent time travelling in Europe. The Respondent's younger daughter was having surgery around the time of the Respondent's birthday.
44For the Applicant to suggest that it is realistic to accept that his unexpected arrival at the Respondent's home on the day in question with a group of some five male friends (some of whom the Respondent had never even met) and holding a birthday cake and another cake with love hearts on it, constitutes an engagement party is something which casts serious doubt over the reliability of the balance of his evidence.
45At the so-called engagement party there were no friends or family of the Respondent present. It is highly unlikely that there was ever any agreement reached on [the day of the Respondent’s 42nd birthday] or earlier for the parties to marry. The Applicant has not given any evidence of any agreed date for the alleged intended marriage to actually take place. The Applicant's evidence about providing money to the Respondent to purchase an engagement ring was strongly contested, as indeed most of the Applicant's oral evidence regarding financial interactions between the parties was strongly contested.
46This substantial defect in the Applicant's evidence leads the Court to view the Applicant's evidence regarding events post-dating the day of the Respondent’s 42nd birthday in a very cautious fashion.
47As for the Respondent, there are also good reasons to have doubt about the reliability of all of her evidence. A prime example is her evidence regarding some transactions on a particular ANZ Bank account in the name of the Applicant.
48The relevant documents comprise annexure 6 to the Applicant's trial affidavit. The number of the account in question ends with the digits [xxxx]. The entries of particular concern are those dated 10, 12 and 16 June 2014.
49On 10 June 2014 the Respondent caused $67,000 to be deposited into the Applicant's account. The same amount was withdrawn by her on that day. Her explanation is that the $67,000 was her money and that she was providing a short-term loan to the son of Mr V in order to assist him to settle the purchase of a property from his parents. She also added that on the day in question she was on her way to China and so placed the money in the Applicant's account trusting him to pay it over to Mr and Ms V.
50However, the Respondent's evidence on point was unconvincing. She did not satisfactorily explain why it was necessary for her to use an account in the name of the Applicant to achieve the desired outcome when, presumably, she could have used an account of her own or one held by one of her friends or members of family.
51Then, on 12 June 2014 the sum of $288,681 is deposited into the same account of the Applicant. The Respondent says that this sum represents the net proceeds of sale of the property of Mr and Ms V. Then, on 16 June 2014 there are two transfers, to the same account, out of the Applicant's account, totalling $288,000.
52The Respondent says that Mr and Ms V mistakenly gave their settlement agents the Applicant's bank account details instead of their own or hers. This evidence is, on its face, implausible. The amount in question is substantial. This is not the type of careless mistake that ordinary people would make.
53The Respondent could have called Mr V to corroborate her version of events. Although the Respondent led the Applicant to believe that she would be calling Mr V as her witness, at the eleventh hour her counsel told the Court, without prior notice to the Applicant's lawyers, that Mr V would not be called. It is very difficult to do anything other than draw the conclusion that the reason the Respondent did not call Mr V is that she knew his evidence would not support her case on this point and perhaps more broadly.
54Only the Respondent truly knows the truth behind those deposits and withdrawals. There is no suggestion that any of those particular transactions caused any financial loss to the Applicant. That is, the Applicant does not lay claim to any of those particular monies that went in and out of his account. It is unclear why the Respondent was not completely truthful regarding those transactions. There is obviously a reason why she and Mr and Ms V decided to effect these transactions the way they did. The reason is not apparent.
55The Applicant's counsel suggested to the Respondent in cross‑examination that the $67,000 transaction in question was actually related to the settlement of the purchase of the Suburb A property owned by the Respondent's elder daughter and had nothing to do with the son of Mr and Mrs V. It appears that this settlement took place on or about 16 June 2014. However, the Respondent maintained the narrative in her trial affidavit and said that it was pure coincidence that the settlement of these two property transactions occurred at or around the same time.
56By the conclusion of the evidence it was extremely difficult to make sense of the evidence regarding the transactions allegedly concerning the V family. The Respondent could have led all the evidence necessary to establish the truth on point but elected not to do so. It is difficult to see how her case would have been disadvantaged by a full and frank account on this issue.
57Also, there was some other curious evidence regarding another deposit into the Applicant's ANZ Bank account # xxxx. It emerged in the trial that some rent paid by the occupier of the old home formerly sitting on the F Street, Suburb A property that was due to the Respondent and Ms B (or their entities) somehow found its way into the Applicant's account. The Respondent's explanation on point was unconvincing. It seems unlikely that a person as financially savvy as the Respondent could have made a mistake in directing the relevant property manager to deposit rent into the Applicant's account instead of her own or that of Company A.
58Otherwise, there is another good reason to be cautious about the evidence of both parties. Most of the financial transactions between them were, on both accounts, carried out in cash. That is to say, the evidence of the parties is that tens of thousands of dollars in cash changed hands from time to time. Indeed, it would appear that the Applicant is claiming the $268,000 figure specified in his initiating application as representing the total amount he allegedly paid in cash to the Respondent in various instalments and for various reasons.
59There is no paper trail to follow. Neither party has produced a complete set of bank statements to cover the relevant periods. The Applicant has provided copies of tax returns for only the years ended 30 June 2017 and 2018. They are not particularly helpful. Although the Applicant apparently lodged an income tax return for the year ended 30 June 2014, a copy of it was not put into evidence.
60The Applicant, despite some prompting from the Bench, did not produce any income tax assessment notices. For her part, there are no taxation records at all from the Respondent in the evidence.
61The Applicant said that he did not lodge income tax returns for the years ended 30 June 2015 and 2016 because his income was limited to Centrelink benefits and therefore he did not have an obligation to lodge. However, the Applicant did not lead any expert evidence to prove that he had no such obligation. Further, the evidence of Ms B given in answer to questions from the Bench suggested that there is a serious doubt as to whether the Applicant should have lodged returns for the two years in question, or at least for one of them.
62One of the reasons why a complete set of income tax returns and assessment notices from the Applicant would have been helpful is that evidence of his taxable income would ordinarily be expected to support a finding that he had the capacity to make the large cash payments to the Respondent and to others that he said he actually made.
63As for the witnesses for each party, it has to be said that all of those witnesses gave evidence in a reasonably satisfactory fashion. That is, under cross-examination, none of them was caught out telling a blatant untruth. However, most of them spent only a short period of time in the witness box and some were cross-examined only very briefly. In those circumstances, it is difficult to gain a complete sense of the reliability of their evidence.
64The most impressive of all the witnesses to be called was Ms B. She herself drafted her own affidavit, albeit that the final product was produced out of the offices of the solicitors then acting for the Respondent. She answered every question put to her in a clear, considered and forthright fashion. To the extent that her evidence conflicts with that of the Applicant or any of his witnesses, the evidence of Ms B is strongly preferred. That said, Ms B acknowledged that her knowledge of the Respondent's financial affairs was very limited, being restricted to those matters necessary for the production of the Respondent's income tax returns. Otherwise, the only knowledge Ms B has of the Respondent's financial affairs is that concerning their joint involvement in the property development carried out by Company B.
65There was nothing to emerge from the cross-examination of any of the witnesses called by each party to lead the Court to conclude that any one of them was being deliberately dishonest.
66However, it needs to be stressed that many of the witnesses gave evidence about relatively mundane events occurring several years ago. Most of the Applicant's witnesses were clearly aligned with him as the Respondent's most important witness, her daughter, was clearly aligned with her. It would be unrealistic to expect that people with no financial interest in the outcome of the proceedings would have a perfect recollection of unremarkable events occurring so long ago.
STATUTORY INDICATORS
67The statutory indicators will be addressed in the order in which they are listed in the Act and not necessarily in order of importance in the particular circumstances of this case.
Length of relationship
68The parties have known each other since August 2013.
69On either party's version of events, any relationship between them broke down completely by no later than 22 December 2016.
70Thus, the parties' relationship, however it is ultimately characterised, was relatively short, standing at less than three years. Given the ages of the parties and their considerable life experience before they met each other, the relevant period can fairly be described as being only modest.
Whether the parties have resided together
71It is common ground that the parties resided together at the Suburb A property as from June or July 2014. However, whereas the Applicant says that they lived there together from that time until February 2016 when the Suburb B property was ready to be occupied, the Respondent says that, at her request, the Applicant vacated the Suburb A property at the end of August 2015.
72The Applicant alleges that the parties lived together in the Respondent's rental property in Suburb D between February 2014 and June/July 2014. The Respondent denies this.
73The Applicant alleges that the parties lived together in the Suburb B property from February 2016 until 22 December 2016. The Respondent denies that they ever lived together at this property.
74The Applicant has provided evidence that on 20 January 2014 he gave 21 days notice to the lessor of the Suburb C property that he was terminating his tenancy. Whilst this evidence is consistent with his case on point, it does not of itself prove that he moved from Suburb C into the Suburb D property.
75The Applicant has not led sufficient evidence to prove that he ever lived at the Suburb D property.
76None of his witnesses gave evidence that would support the conclusion that he resided at the Suburb D property. There are no documents which show the Suburb D property as the Applicant's address, for example, tax records, motor vehicle licensing records, Medicare records, drivers' licence records and the like. There was nothing to emerge from the cross‑examination of the Respondent to prove that the Applicant ever resided at the Suburb D property.
77If the Applicant's evidence on point is correct, then, after a chance meeting in a McDonald's restaurant car park and the passage of only some five months or so (part of which the Respondent was in Europe) the Respondent invited him to move into her home as her de facto partner. Given the totality of the evidence this seems highly unlikely.
78The Respondent's evidence on this issue is supported by her elder daughter who lived with the Respondent at the Suburb D property. Her evidence is that the Applicant only ever visited this property. She also said that the Applicant did not stay overnight at the property nor did she ever witness any affectionate interaction between them at this time.
79Next, the length of time the parties resided together at the Suburb A property is in question. The Applicant has an admission from the Respondent that he moved into the Suburb A property in July 2014 and stayed there until late August 2015.
80However, it is necessary for a finding to be made regarding the period from late August 2015 to February 2016. One fact that is uncontested is that the Respondent moved into the Suburb B property in February 2016.
81Again, the onus was on the Applicant to prove on the balance of probabilities that he resided in the Suburb A property from late August 2015 to February 2016. He has not discharged that onus.
82None of the evidence given by any of the witnesses called by the Applicant proves that the Applicant was resident in the Suburb A property after late August 2015.
83Although Mr S was clearly an honest witness trying his best to give accurate evidence, it was unrealistic to expect that he would have made any particular mental note of his very limited and quite mundane interactions with the parties.
84Under cross-examination Mr S acknowledged that he had never entered the Suburb A property at any time the parties were his neighbours and that he had never seen any young children there.
85Mr S's evidence was general in nature and did not extend to proving that the Applicant was still residing at the Suburb A property after late August 2015, even though he himself remained living next door until late 2016.
86The Applicant has not produced any documentary evidence, of the type referred to above, that is, government department records and the like, to show that he was residing at Suburb A after late August 2015.
87Conversely, the Respondent's evidence on point is corroborated by the evidence of her elder daughter. Whilst the Respondent's elder daughter was not an overly impressive witness, still, there was nothing to emerge from her cross-examination to indicate that she was being untruthful. Her evidence is plausible and her answers under cross‑examination were given clearly and consistently.
88Further, the Respondent's evidence to the effect that the Applicant invited himself to live in the Suburb A property is supported by the evidence of the Respondent's elder daughter. It is difficult to see why the Respondent and her daughter would be minded to invite another adult to share what was, by all accounts, a small triplex home. It is also accepted that at the time the Applicant moved in, neither the Respondent nor her daughter anticipated that the Applicant would stay for as long as he did.
89As for the Suburb B property, the Applicant has failed to prove on the balance of probabilities that he ever lived at that property. His evidence in this area is not supported by the evidence of any of his witnesses other than perhaps for that of Mr and Ms J.
90Neither Mr or Ms J was ever invited inside the Suburb B property and neither saw the Applicant actually inside the property. On several occasions they saw a vehicle used by the Applicant parked in the laneway behind their property late in the night as they were finishing work operating their [retail] business and trying to park their car inside their garage, access to which was blocked by the Applicant's vehicle.
91Mr and Ms J identified the relevant vehicle as belonging to the Applicant because it carried conspicuous advertising of a particular business on its side panels. One such vehicle owned by the Applicant was sold by him earlier than the last dates when these two witnesses said they saw the Applicant's vehicle blocking their garage. However, the Applicant says that there was a second vehicle driven by him which, although a different make to the first vehicle, was similar in appearance and carried the same advertising.
92Whilst the evidence of Mr and Ms J does tend to prove that the Applicant was a much more frequent visitor to the Suburb B property than the Respondent would concede and was more involved with the tradespeople working on site than the Respondent would concede, their evidence does not provide a great degree of support for the conclusion that the Applicant was in full-time residence after the building was completed.
93The evidence of Mr T was given very convincingly. It is likely that if the Applicant was in residence at the Suburb B property when he was visiting for contractual purposes, Mr T would have seen evidence of it. He did not.
94The Applicant has not produced a single document linking him to the Suburb B address.
95Furthermore, on the Applicant's own case he entered the Suburb B property on Christmas Day to remove his clothing and belongings. He left with a single item of clothing, described in the evidence as being an item of traditional [Religion A] clothing. It seems unlikely that a person who had been living in a home for ten months would be able to remove all of his/her clothing and belongings in one armful.
96The Applicant may well have made several visits to the Suburb B property after the building was completed and the Respondent may well have understated the true facts in this respect. However, there is a clear difference between being a visitor and being a full-time resident.
97To conclude under this sub-heading, it is found that the only period of common residence for the parties is the limited period that is admitted by the Respondent.
Nature and extent of the common residence
98The Suburb A property has three bedrooms. The Applicant alleges the parties shared the main bedroom whereas the Respondent alleges that the three residents all had their own bedrooms. The Respondent's evidence is corroborated by the evidence of her elder daughter.
99The precise details of the sleeping arrangements are probably not material. This is because the Respondent admits that there was a sexual relationship between the parties that commenced shortly prior to the Applicant moving into the Suburb A property and which extended until late August 2015.
100None of the Applicant's witnesses visited the parties at the Suburb A property and so none of them was placed to provide any helpful evidence on this issue.
101Neither the Applicant nor the Respondent said a great deal about the day‑to‑day arrangements whilst they shared occupation of the Suburb A property. Given that there was a sexual relationship in place at the relevant time, it is likely that the parties shared meals together and otherwise spent time together in the home. It needs to be borne in mind that the Suburb B home was under construction as from March 2014, meaning that the Respondent did not regard the Suburb A property as anything more than a stop-gap accommodation arrangement.
102However, it would appear that neither party invited friends to the Suburb A property on a regular basis, if at all.
103The Respondent's evidence on this issue is supported by the evidence of her elder daughter. She says that whilst the Applicant agreed to pay board to her of $150 per week for occupying her home he did not actually do so. She added that she did not press for payment because the Applicant had carried out repair works to her motor vehicles without charging and so it was fair to off-set one liability against the other. Also, the Respondent's elder daughter corroborated her mother's evidence regarding the circumstances surrounding the Applicant's departure from the Suburb A property.
Whether there has been a sexual relationship between the parties
104It is common ground that there was a sexual relationship between the parties.
105The Applicant says very little about this issue in his trial affidavit. At page 19 thereof he says the following:-
I maintained an exclusive sexual relationship with [Ms Piontek] for the entire period February 2014 - 22 December 2016 and to the best of my knowledge, [Ms Piontek] did with me.
106The Applicant says a little more about this subject in his responding affidavit. At paragraph 32 thereof the Applicant says that the sexual relationship ended in early December 2016. At paragraph 18 of the same affidavit the Applicant says, relevantly, the following:-
…We were sexually intimate during the whole period of our relationship. I recall that [Ms Piontek] got upset every month when she had her period. She often cried and said it was because she wanted a baby from me.
107The Respondent's counsel did not cross‑examine the Applicant to any significant extent regarding this issue.
108As for the Respondent, she too did not say a great deal regarding this statutory indicator.
109At paragraph 27 of her trial affidavit the Respondent says the following:-
During the time [Mr Hadzhiev] lived in the [Suburb A] Unit, [Mr Hadzhiev] and I were sporadically and casually sexually intimate. There were several periods where we were not sexually intimate including periods of up to two months or more when he would be away for weeks and there were multiple occasions where I was overseas.
110The Respondent remained steadfast throughout the trial that any sexual relationship ended by no later than 30 August 2015.
111The Applicant's counsel did not cross‑examine the Respondent to any significant extent, if at all, regarding this factor.
112To be fair to both counsel, this is obviously a very difficult and sensitive subject upon which to cross-examine. By its very nature, sexual relationships are conducted privately. Only the parties themselves know exactly what transpired between them in this respect. It comes down to the word of one party against the other.
113That said, the Applicant's evidence about the Respondent wanting to have a baby with him probably deserves further consideration.
114The Respondent was born [in] 1971 which means that she was almost 42 years old when the parties met and had two daughters who have different fathers. The younger daughter was then aged 16 years and the elder daughter was then aged 21 years.
115Given those facts, the Respondent's financial independence and her general circumstances, is it really likely that she would be planning to have another baby with a man to whom she was not married and whom she had known for only a relatively short time? That question is answered in the negative. By all accounts the Respondent has expensive tastes and places a very high value on material possessions and financial security. It seems highly unlikely that having raised two children to adulthood, or near adulthood, she would seriously consider starting all over again, with the attendant reduction in earning capacity, by having a child with a man who did not even own his own home.
Degree of financial dependence or interdependence, and any arrangements for financial support, between the parties
116This issue may conveniently be dealt with together with the following sub‑heading because so much of the relevant evidence overlaps the two issues.
Ownership, use and acquisition of the parties' property
117It would be fair to say that the focus of the parties in the trial was heavily upon the evidence of the multitude of individual financial transactions and events covered in the affidavits of the Applicant and the trial affidavit of the Respondent. That is, most of the time in the trial was spent considering the evidence of the various financial interactions, alleged and admitted, as between the parties.
118In chronological order, the first contentious financial issue concerns the trip taken by the parties to China in February 2014, that is, only some three or four months after the parties first met.
119Almost the only fact agreed in this respect is that the parties together flew from Perth to China on or about 23 February 2014 and arrived back in Perth together on or about 7 March 2014. What happened in between is contested.
120The Applicant says that there was a romantic element to the trip in that the parties shared the same hotel room and went to China so that he could support the Respondent sourcing products, building materials and furnishings for the Suburb B property and otherwise to further the conduct of the business of Company A. It must be said it is difficult to see what type of material support he could offer.
121The Respondent says that there was no romantic element to the trip whatsoever. She says the parties stayed in different hotels, albeit situated reasonably close to each other.
122Further, the Respondent says that the Applicant accompanied her on this trip at his request and for his own purposes, that is, to use her contacts in China to source cheaper materials and equipment for use by him in his mechanic business.
123As it transpires, neither party purchased anything on this trip. The Respondent subsequently placed an order for various items investigated by her. She said that the Applicant was ill for part of the trip and spent a reasonable portion of it alone in his hotel room. The Applicant denies being ill.
124The Respondent made the point, which appears not to have been challenged, that the particular place in China visited by the parties is essentially a commercial/industrial centre rather than a popular tourist location. It appears to be a place generally visited only by people conducting business. That is, it would not be a destination of the type which would be expected to be favoured by a romantic couple.
125As was the case with much of the disputed history, neither party could produce any documentary evidence to support his/her version of events. Neither party produced any documents, such as credit card statements or receipts/booking confirmations from the relevant hotel(s). It might be thought that it would not be an impossible task for a person to prove the name and location of the hotel in which he or she stayed only five years ago or so. Neither party provided a hotel name or even a rough address. Again, in the end, it was the word of one party against the other.
126Further, the Respondent said that as the Applicant's ATM card did not function in China (as hers also did not), she advanced him cash so that he could meet his expenses. She explains a payment of $5,000 to her by the Applicant on 27 February 2014 as a partial reimbursement of this cash advance. She received from the Applicant another $700 on 27 May 2014 and returned $100 of that sum to the Applicant on 9 June 2014 because, according to her evidence, the total amount she advanced was only $5,600. She added that the Applicant told her he could raise only $5,000 at the time of the 27 February 2014 transfer.
127After the trip to China there was a substantial amount of activity involving the purchase of cars at auction, their repair by the Applicant and their subsequent sales. Each party has provided a very different account of the relevant transactions. The Applicant's version suggests there was a joint enterprise whereas the Respondent's version suggests that there was a clear distinction between the transactions effected by the Applicant on the one hand and those effected by her on the other.
128The Applicant alleges that the Respondent was in control of the process and that the profits from these sales were wholly retained by her on the promise that his share of such profits would be "invested" by her for mutual benefit in the course of conducting the business of Company A and/or the business of Company B and/or in the development of the Suburb B property. The Applicant's evidence on point is quite vague. It is unclear how he believed he was actually "investing". That is, what were the terms and conditions of such investment? What was the particular financial return on investment that the Applicant was expecting or was agreed? When was the Applicant to receive a return on investment? All of these questions remain unanswered by the conclusion of the trial.
129The Respondent alleges that each party bought and sold vehicles in their own right, using their own money and that each retained the profits so generated. The Respondent says that she paid the Applicant for work he performed repairing the vehicles used personally by her and her daughters and also that she paid him for repair work done to vehicles purchased by her at auction for subsequent sale.
130As alluded to above, clouding the issue is the fact that, on either account, the vehicles in question were purchased and sold for cash. There are records produced by Department of Transport, but it would appear that these are not entirely reliable, in the sense that some of the figures recorded may not be entirely accurate.
131For example, the Applicant was cross-examined about the sale by him of a particular vehicle which is recorded in Department of Transport records as having been sold for $10,000. The Applicant said that he actually received $13,000 from the purchaser and that, at the purchaser's insistence, the sale price was noted at only $10,000 so that the purchaser could save some stamp duty. The Applicant did not appear to see any difficulty in agreeing with a third party to deprive the State government of part of the revenue to which it was entitled.
132The dispute between the parties regarding the motor vehicle claimed by the Applicant in his initiating application also highlights many of the evidentiary difficulties to arise in this area.
133The Applicant says the motor vehicle belongs to him. The Respondent says the motor vehicle belongs to her.
134It appeared to be common ground that:-
(a)[in mid] 2014 the Respondent purchased the motor vehicle at auction from [the auctioneers] for the total price of $56,076, using her money;
(b)the motor vehicle was unlicensed at the time of purchase and required repair;
(c)the Applicant carried out the necessary repairs;
(d)the Applicant took the necessary action with the licensing authorities to have the motor vehicle licensed and registered;
(e)on or about 19 January 2015 the Applicant paid $50,000 in cash to the Respondent and the motor vehicle became registered in his sole name; and
(f)the motor vehicle was substantially under the control of the Applicant until late 2016.
135However, the motor vehicle is now in the possession of the Respondent and it is registered in her name. The factual circumstances under which this came to be are fiercely contested.
136The Respondent's case is that on or about 21 December 2016 the parties agreed that title to the motor vehicle be transferred to her for $39,000. Further, the Respondent says that at this time she paid $39,000 in cash to the Applicant and that the Respondent signed a transfer of ownership form which had been completed by him. The Respondent then posted the form to the relevant authority and, with the intervening Christmas break it was several days before the form could be processed. It transpires that the VIN included in the transfer form was incorrect and therefore the transfer request was rejected and the relevant form returned to the Respondent.
137In due course the Respondent was able to satisfy the licensing authority about the correct VIN and so the transfer of registration was duly processed to the result that the Respondent is now registered as the owner of the motor vehicle.
138The Applicant denies any agreement to sell the motor vehicle to the Respondent and denies receiving $39,000 or any sum for his legal interest in the vehicle. He alleges that the Respondent used a blank form of transfer signed by him at some earlier time and otherwise fraudulently completed the balance of the form. In response the Respondent said that if she had done so it would have been unlikely that she would have included an incorrect VIN.
139It would appear that initially the Applicant thought that the Respondent had forged his signature on the transfer form and so he made a complaint to the licensing authority. The Applicant's complaint has been investigated and the Respondent has not been charged with any offence relating to the transfer.
140Shortly after his visit to the Respondent's home on Christmas Day 2016, and in acrimonious circumstances, the Applicant ultimately drove away with the motor vehicle. However, once the Respondent was able to complete the licensing registration into her name, she obtained assistance from police to re-take possession of the motor vehicle from the Applicant. The vehicle has remained in the possession of the Respondent since then.
141Although there is a substantial difference in the respective accounts of the parties generally regarding the transfer of funds between them, it did not appear to be the case of either party that he/she was financially dependent on the other at any time. That is, the Applicant says that when he met the Respondent he had a substantial asset base and a business. The Applicant still has the earning capacity as a mechanic that he had when the parties first met. For her part, the Respondent had been financially self‑sufficient prior to meeting the Applicant. She had already purchased the Suburb B block with a view to building a new home. She had been able to support herself living in the rented Suburb D property from her control of Company A and its business.
142The parties have never purchased any real property in their joint names. It does not appear that any of the various motor vehicles referred to in the evidence were purchased in joint names. The parties have never had a joint bank account. The Applicant has never been a shareholder in Company A nor has he ever been one of its directors or a director of Company B. There is no evidence that the parties have ever jointly acquired any item of property of any material value.
143It is clear that the development project executed by Company B did not involve the Applicant, directly or indirectly. This has been a project financed and driven exclusively by the Respondent and Ms B, via their respective entities.
144To complete the consideration of these two indicators, it is determined that, given the substantial deficits in the evidence and the concerns already expressed (and some other concerns which will be covered below) regarding the credibility of the parties, it would be quite unsafe to make definitive findings of fact regarding each and every single financial transaction that occurred between the parties. Indeed, on reflection, it is considered unnecessary to do so for present purposes.
145That is, in order to determine whether the parties were ever in a de facto relationship it is not necessary for there to be a finding as to whether:-
(a)the Applicant is the legal or equitable owner of the motor vehicle; and/or
(b)the Respondent is indebted to the Applicant to the extent of $268,000 or any other amount.
146The Respondent signed a statutory declaration, a copy of which is in evidence, in which she acknowledges that, at the time of signing, she is indebted to the Applicant to the extent of $50,000 and that she would repay this sum by a certain date which has now passed. However, the Respondent says that this acknowledgement was given in recognition of the fact that the Applicant had paid her $50,000 representing the price of some building materials owned by her which the Applicant said he could sell on her behalf to his friends or contacts. The Respondent added that the sale fell through and in those circumstances she was obliged to refund the money to the Applicant. She says that, for his own reasons, the Applicant did not want the money returned immediately. Her evidence is that ultimately she made a part-repayment of $10,000 into the Applicant's bank account and was subsequently chastised by the Applicant for doing so, on the basis that he wanted to be repaid only in cash.
147The Applicant has provided a quite different version of events. The evidence in this area highlights once more the difficulties that arise when substantial financial transactions are carried out in cash with little or no supporting documentation. In such circumstances, it is very difficult for courts, generally, to make definitive findings of fact.
Degree of mutual commitment by the parties to a shared life
148It is important to note the inclusion of the adjective "mutual" in this indicator.
149The evidence would suggest that the Applicant was to some extent committed to a shared life, in the sense that he was attracted to the Respondent and appears to have been quite impressed with what he perceived to be the Respondent's financial acumen and success. The Applicant appears to have anticipated that the Respondent would be sharing her financial success with him. He was to be disappointed.
150The Applicant said that, within a relatively short time of meeting the Respondent for the first time, he gave her $7,000 to purchase a particular engagement ring and that she kept all the money without actually buying a ring. The Applicant would have been aware that there was no such ring purchased by the Respondent or worn by her. So, apart from the fact that it seems unusual that if the ring in question had been selected, the Applicant himself would not have carried out the purchase rather than leaving it to the Respondent, it seems very unusual that the Applicant apparently did not complain that his fiancé pocketed the $7,000 and never wore a ring. The Applicant did not call as his witness the particular jeweller he alleges the parties visited.
151There is some evidence from the Respondent (denied by the Applicant) that she assisted the Applicant to register on an online dating service at a time when, according to the Applicant, there was a de facto relationship between them. Again, it is difficult to know what to make of this disputed evidence.
152In a similar vein the Respondent alleges that she was "dating" other men between late August 2015 and late December 2016, although she did not call any of them to give evidence. At paragraph 66 of her trial affidavit the Respondent says that she commenced her relationship with her current partner in 2015. However, the Respondent did not call the gentleman in question to give evidence. Moreover, the Respondent was not cross-examined about this part of her evidence.
153To conclude under this sub-heading, the Applicant has not proved on the balance of probabilities that the Respondent at any time demonstrated any commitment to a shared life. It is entirely possible that the Applicant was committed to a shared life, or at least was very interested in the possibility of a shared life, particularly one that involved the sharing of the Respondent's financial resources. However, having re-read the affidavit material and having seen the Respondent in the witness box, it is highly unlikely that she was ever committed to sharing her life with the Applicant , in any substantial way, on a long-term basis.
Whether the parties care for and support children
154There are no children of the parties' relationship. As noted above, both parties have children from previous marriages.
155The Applicant has suggested that there was a good deal of interaction between his children and the Respondent during the times that he was able to spend time with them. A little time was spent in the trial considering the significance of the photograph taken of the Respondent with the Applicant's children comprising annexure 2 to the Applicant's trial affidavit. This photograph was mischievously sent to the Applicant's former wife, who, clearly enough, did not appreciate receiving it. It depicts each of the Applicant's children placing a kiss on each of the Respondent's cheeks. It has to be said that the expression on the Respondent's face is not consistent with the version of events painted by the Applicant. The Respondent was adamant that taking the photograph was entirely the Applicant's idea.
156The photograph was taken on 15 September 2013, that is, within only three weeks or so of the parties meeting for the first time. It was sent to the Applicant's former wife with a caption reading "[Z] and [M] love my new wife". The response from the Applicant's former wife (delivered by her husband) was probably exactly what the Applicant was hoping for. That is, it is likely that the Applicant was minded to provoke and irritate his former wife.
157Moreover, it is the Applicant's evidence that the Respondent sent this photograph to his former wife. The Respondent's evidence is that the Applicant sent it. It seems more likely than not that the Respondent is telling the truth on this point. Why would a woman who barely knows a man take it upon herself to send a provocative photograph of herself and a provocative message to a woman she does not know and with whom she has no quarrel? Unfortunately, neither party was cross-examined to any significant extent, if at all, about who actually sent this photograph and whose mobile phone was used for the purpose.
Reputation and public aspects of the relationship
158There is a substantial problem for the Applicant which arises under this sub-heading.
159The concept of the reputation and public aspects of a relationship extends not only to the perception of the relevant relationship by individuals, such as friends and family members, but also extends to how that relationship is presented to institutions and people in authority.
160As noted above, the Applicant applied for and was granted a Newstart allowance in the early part of the 2014/15 financial year and continued to receive that benefit until late 2016.
161It is notorious that when such an application is made the relevant applicant needs to provide to Centrelink a variety of information including about the person's relationship status and financial circumstances. This is because these matters must be taken into account to determine the threshold question of eligibility for a benefit and then, if eligibility is established, the rate at which a benefit is paid.
162The Respondent put into evidence some documents from Centrelink that were obtained by her with the Applicant's consent. Those documents show, amongst other things, that when applying for benefits the Applicant:-
(a)represented that the only other person he was living with in the Suburb A property was the Respondent's elder daughter;
(b)did not state that he was living in a de facto relationship with the Respondent and made no mention whatsoever of the Respondent living in the property;
(c)represented that he was paying $150 per week to the Respondent's elder daughter for "Lodging only", commencing 1 July 2014;
(d)represented that he had savings and cash totalling $2,645;
(e)represented that he had not borrowed money to purchase any investments or did not still owe any money borrowed for that purpose;
(f)represented that he had three motor vehicles to a total value of $16,500; and
(g)did not disclose any debts owing to him by the Respondent.
163On the face of it these representations and non-disclosures are fatal to the Applicant's case because they are inconsistent with his claims that:-
(a)he was living with the Respondent in a de facto relationship at the relevant time; and
(b)he had all the substantial assets, cash and financial resources necessary to fund the significant payments of cash he allegedly made to the Respondent from time to time.
164Further, it is reasonable to assume that the Western Australian taxpayer would expect that a person in the Applicant's shoes, who has a trade and according to his Centrelink application had no reason for not working other than for the fact that his business closed down, would make a concerted effort to find paid employment and cease receipt of his Newstart allowance. However, it appears that the Applicant chose to spend time assisting the Respondent to complete the project of building the home on the Suburb B block. Such choice does not reflect well upon the Applicant. That is, it appears the Applicant had no difficulty accepting the Newstart allowance without making a genuine effort to find paid work and still has no difficulty with that history.
165The Applicant answers this part of the evidence by saying that he had nothing to do with the application for Centrelink benefits, in the sense that it was all the Respondent's idea and that it was she alone who made the online application without his input and support and without his knowledge as to the answers he was providing to Centrelink on the pro‑forma application. The Applicant is able to say accurately that his signature does not appear on the Centrelink application. On that basis, the Applicant distances himself from the process.
166This line of defence from the Applicant is rejected for the following reasons.
167Firstly, the Applicant is not an unsophisticated individual. He has conducted business in his own right and it is highly likely that he would know that Centrelink would be interested in his true relationship status and his true financial position. Moreover, he would know that the provision of Centrelink benefits to a person is conditional upon the recipient making a genuine effort to find paid employment rather than devoting time assisting someone else complete the construction of their new home.
168The Applicant was prepared to accept his Centrelink benefits over a reasonably lengthy period. His evidence is that he did not make any visit in person to any Centrelink office at any time he was receiving benefits. This evidence is difficult to accept. It is likely that the Applicant had adequate opportunity to advise Centrelink of his true relationship status, and would have taken that opportunity if he truly believed he was in a de facto relationship at the time. Indeed, the documents produced by Centrelink show multiple appointments were made for the Applicant to attend upon his Centrelink Service Centre.
169Furthermore, as raised in the course of the trial, the Applicant has known from at least the time that he was served with the notice filed by the Respondent on 28 March 2019 to admit the authenticity of the Centrelink documents that he had been receiving Centrelink benefits as a single person with, ostensibly, very limited financial resources of his own.
170On the Applicant's case he has received a substantial amount of Centrelink money because of an innocent mistake on his part and because of the dishonesty of the Respondent. In those circumstances an honourable and honest person would be expected to make a priority of contacting Centrelink, making a full and frank disclosure of the circumstances of the overpayment and then making an offer to repay the amount to which he was not entitled. Has the Applicant done so? This question must be answered in the negative because there is no evidence that he has, despite having more than adequate opportunity to do so. Furthermore, there was no evidence from the Applicant that he has any intention whatsoever of making restitution to Centrelink.
171The Respondent was not cross-examined to any significant degree, if at all, regarding her alleged role in making the Centrelink application. It is her case that insofar as the application purports to be a representation that the Applicant was not in a de facto relationship with her at the relevant time it is a true representation. There is insufficient evidence to ground an adverse finding against the Respondent on this issue. The Applicant is the party in whose name the application for benefits was made. The Applicant is the party who, over a lengthy period, was the sole recipient of the benefits. The Applicant should not be permitted to simply wash his hands of all responsibility.
172It should be added that the Applicant is not to be given credit for consenting to the release of those Centrelink records that the Respondent was able to obtain. Had he not given such consent then it is likely that an adverse inference would have been drawn against him for withholding consent. Furthermore, it is certainly arguable that the Applicant himself should have been the party obtaining these records and putting them to the Respondent and to the Court. The duty of full and frank disclosure in financial cases requires the disclosure of all relevant documents, including documents that are adverse to a party's interests.
173As for other institutions, there is no evidence that the Applicant ever represented to the Australian Taxation Office or other government body that he was in a de facto relationship with the Respondent.
174The Applicant's witnesses Messrs H, G, C, K and M, all of whom are good friends of the Applicant, have given evidence that their perception of the parties' relationship was consistent with it being a "marriage-like" relationship. However, it is noted that whereas they say they saw signs of overt affection between the parties, that evidence is not supported by the evidence of Mr R, Mr and Ms J and Mr S. Such evidence is also totally at odds with the evidence of the three witnesses called by the Respondent. The evidence of the five friends of the Applicant is also consistent with the parties' relationship being affectionate but less than "marriage-like".
175It is quite possible that in the presence of the Applicant's male friends the Respondent behaved in ways that led them to believe that the parties' relationship was more important to her than it actually was. Much of the impression of the relationship that those male friends gained was a product of discussions between them and the Applicant, not between them and the Respondent.
176However, it seems clear that in the presence of her own friends and family the Respondent behaved quite differently towards the Applicant. The Respondent presented as something of a calculating individual who might well be prepared to do things to advance her financial interests that others might be reluctant to do. For example, the Respondent acknowledges that she was prepared to mislead Mr R into thinking the Applicant was her husband and had authority to speak on her behalf regarding the building contract because she was fearful that Mr R, and other male workers and contractors in the construction project, might seek to take advantage of her as a single woman. Having seen the Respondent in the witness box for some time, it is difficult to believe that, in fact, she could be taken advantage of in any commercial dealing.
DISCUSSION AND CONCLUSION
177Much has been said and written about the concept of what constitutes a "marriage‑like" relationship. The analysis necessarily involves an expression of a view about the nature of the institution of marriage in contemporary Western Australian society.
178Obviously, there is no single template for a marriage-like relationship. Adults conduct their personal relationships in an almost infinite variety of ways. For example, two people in a legal marriage or a de facto relationship might maintain a very high degree of financial independence from each other in ways that would be completely unacceptable to another couple.
179It is necessary to stand back and look at the totality of the relevant evidence and to decide whether the particular relationship under consideration carries sufficient of the indicia of a marriage-like relationship.
180It is expressly provided in s 13A of the Interpretation Act that none of the listed indicators is essential. Moreover, the list is not exhaustive. No individual indicator takes priority over any other. Each has to be considered in conjunction with the other.
181Having had the opportunity to reflect on the relevant evidence and the closing submissions of counsel it is concluded that the Applicant has failed to prove that the parties' relationship carried sufficient of the indicia of a de facto relationship to be properly characterised as such.
182The length of the relationship was relatively short and the relationship was childless.
183Whilst there was substantial evidence of a variety of individual financial transactions involving the parties, neither party ever had to depend on the other for financial support.
184There were no assets acquired in joint names. There were no joint bank accounts. There were no joint private health insurance policies. There were no joint recreational holidays. There were virtually no mutual friends. The Respondent could have involved the Applicant in the project undertaken by Company B but did not. The Applicant could have formed a mechanic business partnership with the Respondent but did not. The Respondent could have worn an engagement ring but did not. The relevant officers at Centrelink dealing with the Applicant's application for Newstart benefits were unaware of any de facto relationship between the parties and the application submitted by the Applicant does not even disclose the very existence of the Respondent.
185The essence of the Applicant's evidence is that the Respondent exploited him financially. He maintains that he advanced significant sums of money to the Respondent. For her part, the Respondent recognises only the $50,000 advance referred to in her statutory declaration.
186As noted above, there will be no definitive findings of fact regarding the various individual advances of cash alleged by the Applicant to have been made to the Respondent nor in respect of the ownership of the motor vehicle. This is because that exercise is not essential for present purposes and because it may well be that the Applicant will now pursue a remedy in another court.
187Even if the Applicant's case regarding his cash dealings with the Respondent was accepted at its highest, that would not, of itself, prove the existence of a "marriage-like" relationship. There are many examples of non-personal relationships between individuals which involve a multitude of inter-related financial transactions of significance. Conversely there are many examples of marital and de facto relationships which involve very few inter-related financial transactions of significance.
188The Applicant believes, perhaps justifiably and perhaps not, that the Respondent exploited him for her own commercial gain and so he wants his money back. Assume for the moment that his concerns are proven to be valid. Would that type of behaviour by the Respondent be indicative of a "marriage-like" relationship? That question must surely be answered in the negative. It would be the antithesis of a "marriage-like" relationship for one party to conduct it, from the beginning, in a way designed to cheat the other party financially. Marriage-like relationships are based on mutual love and respect. They are not about the financial exploitation of one party by another.
189So, if the Applicant is correct when he says the Respondent is lying about not receiving substantial quantities of cash from him at various times for the purpose of unspecified investing, then, surely, that indicates, on his own case, that he cannot prove any commitment on the part of the Respondent to a shared life with him.
190The extent of the parties' sexual relationship is uncertain. It is highly likely that the Applicant has grossly exaggerated its extent and that the Respondent has understated it to some degree.
191In any event, the fact that there was a sexual relationship that the Respondent admits having extended to a period of about 14 months or so would tend to indicate that the parties' relationship was, for a time, more affectionate than the Respondent is prepared to admit.
192Marriage is still regarded in contemporary Western Australian society as a very important and respected institution. For a relationship to be characterised as "marriage-like" there needs to be evidence of behaviour which is similar to the behaviour generally exhibited by those who are legally married. Overall, the evidence led in this case demonstrates many types of behaviours which are quite inconsistent with the conduct of a legal marriage. For example, is it usual for two people in a legal marriage to submit an application to Centrelink containing a premise that one of them does not even exist?
193Whilst it is unnecessary to ascribe any particular adjective to the parties' relationship, most reasonable observers would probably characterise the relationship as being, at its highest, no more than that of "boyfriend and girlfriend" commencing when the sexual relationship started. There is a marked gap between a relationship that is merely "boyfriend and girlfriend" and a "marriage-like" relationship.
194It would appear that the Applicant's true motivation in bringing these proceedings is to right what he perceives to have been a number of financial wrongs done to him by the Respondent. The Applicant may or may not have a case under the general law to sue the Respondent for recovery of any debts allegedly due to him. Furthermore, insofar as the motor vehicle is concerned, the Applicant has his rights at common law if he is able to prove that legal title has never validly passed from him to the Respondent.
195Apart from the usual limitation period rules, the only other possible restriction to the Applicant seeking relief in another court is that found in s 205V of the Act which holds as follows:-
205VRight to certain civil proceedings limited
A de facto partner who is, or was, eligible to apply for an order with respect to property under Division 2 may not apply to the Supreme Court in its equitable jurisdiction for relief in respect of that property.
196Of course, it having been determined that the Applicant has not established that the parties were ever de facto partners, the Applicant is not eligible to apply for an order under Div 2 of Pt 5A. Thus, there is no bar to him seeking to apply for equitable relief.
197Further, given that the Applicant has not satisfied the Court that there was ever a de facto relationship between the parties, it is unnecessary to consider the relevant s 205Z(1)(c) matters. That is, the issues of "substantial contributions" and "serious injustice" only arise if there is a finding that there was a de facto relationship in place for a period of less than two years.
198To conclude, there will be an order that the Applicant's initiating application be dismissed. If the Respondent is minded to bring a costs application then, under the relevant rules of court, she has 28 days from the date of the pronouncement of final orders within which to do so. She would need to file a form 2 interlocutory application with a supporting affidavit. However, on the available evidence, it appears doubtful whether the Applicant has the capacity to satisfy any significant costs order and so enforcement of any such order is likely to be highly problematic. That said, it must be stressed that nothing in this paragraph should be read as an indication of the likelihood of success or otherwise of any costs application that may be forthcoming.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Magistrates Court of Western Australia at 150 Terrace Road.
EC
Secretary5 JUNE 2019
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