Hartford and Costanzo

[2019] FCCA 375

FEDERAL CIRCUIT COURT OF AUSTRALIA

HARTFORD & COSTANZO [2019] FCCA 375

Catchwords:
FAMILY LAW – Application for declaration of existence of de facto relationship – application for settlement of property – undefended hearing.

Legislation:

Family Law Act 1975 (Cth), ss.4(AA), 90(RD), 90(RE), 90(RF), 90(RG), 90(SK), 90(SM)

Cases cited:

Watson & Ling (2013) FLC 93-527

Weir & Weir (1993) FLC 92-338

Applicant: MS HARTFORD

Respondent: MR COSTANZO

File Number: ADC 872 of 2016

Judgment of: Judge Mead

Hearing date: 7 September 2017

Date of Last Submission: 5 January 2018

Delivered at: Adelaide

Delivered on: 20 February 2019

REPRESENTATION

Counsel for the Applicant: Mr Anderson

Solicitors for the Applicant: Legal Projects Pty Ltd

Counsel for the Respondent: Not applicable

Solicitors for the Respondent: Not applicable

UPON NOTING THAT this matter was heard on an undefended basis and that the respondent is resident outside of the Commonwealth of Australia.

ORDERS

1. That in full and final settlement of any claim that either party may have or hereafter have against the other for settlement of property:

   (a)That the applicant retain the property at Property A, being the whole of the land comprised and described in CT Register Book Vol … Folio … currently registered in the sole name of the respondent Mr Costanzo, for her sole use and benefit absolutely free of any claim by the respondent;

   (b)That to effect the terms of paragraph 1(a) hereof the respondent transfer all of his estate and interest both at law and in equity in the said property to the applicant;

   (c)That a Registrar be appointed pursuant to s106A(1)(b) of the Family Law Act 1975 (Cth) to execute a transfer of the said property in the name of the respondent and to do whatever other acts and things that may be necessary to give validity and operation to the said transfer NOTING THAT the respondent:

   (i)Failed to comply with an order made 1 June 2017 (paragraph 3) that he file and serve a Notice of Address for Service within the Commonwealth of Australia on or before 7 June 2017; and

   (ii)Failed to otherwise participate in the proceedings following upon the filing of a Notice of Withdrawal as Lawyer by his second firm of solicitors on 9 May 2017;

   (d)That the applicant retain all items of personalty currently in her possession or control including household furniture and effects, chattels, jewellery, motor vehicles including the motor vehicle currently in her possession, shares, savings, investments, life insurance and all other personalty whatsoever for her sole use and benefit absolutely free of any claim by the respondent;

   (e)That the respondent retain all real estate registered in his sole name whether within the Commonwealth of Australia or otherwise, together with all items of personalty currently in his possession or control including household furniture and effects, chattels, motor vehicles SAVE AND EXCEPT for the motor vehicle currently in the possession of the applicant, shares, savings, investments, life insurance and all other personalty whatsoever for his sole use and benefit absolutely free of any claim by the applicant; and

   (f)That for the reasons noted in paragraph 1(c) hereof a Registrar of this Court is appointed pursuant to s106A(1)(b) of the Family Law Act 1975 (Cth) to execute any transfer that shall be necessary in the name of the respondent to effect a transfer of ownership of the motor vehicle referred to herein from the respondent to the applicant and do whatever other acts and things that may be necessary to give validity and operation to the said transfer.

2. That MS HARTFORD is granted a certificate under s128 of the Evidence Act 1995 (Cth) regarding evidence given in these proceedings by that person on 7 September 2017 concerning her receipt of Centrelink benefits from approximately 2009 to the cessation of the de facto relationship.

3. That all extant applications be otherwise dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 872 of 2016

MS HARTFORD

Applicant

And

MR COSTANZO

Respondent

REASONS FOR JUDGMENT

Introduction

1. Ms Hartford seeks a declaration from the court pursuant to section 90RD of the Family Law Act1975 (as amended) that a de facto relationship existed between her and Mr Costanzo and further, that the court then make an order for settlement of property in terms as sought by her.

2. The respondent opposes the declaration sought by the applicant, but ultimately the matter was heard on an undefended basis.

3. Ms Hartford filed her application seeking the orders to which I have referred on 16 March 2016.

4. On the first return date being 6 June 2016 both parties were legally represented.  The court noted that it was their intention to exchange discovery and undertake inspection of discovered material during the period of the adjournment, which was granted to 25 August 2016.

5. By then the respondent had filed a response and affidavit in support but no statement of financial circumstances.  His response sought that the application for a declaration of the existence of a de facto relationship be dismissed as a preliminary point.

6. At the time the proceedings were instituted and thereafter the respondent was resident in Country B of Country C.  He had instructed solicitors in Adelaide.

7. On 25 August 2016, at which time the respondent was still represented, the court ordered that during the period of the adjournment a joint informal conference involving both parties and their legal representatives be held, with a notation that the respondent was expected to be in Adelaide in approximately late September 2016.  Directions were adjourned to 26 October 2016.

8. On the adjourned date the interim question as to the existence of a de facto relationship within the meaning of section 90RD(1) of the Family Law Act (supra) was listed for trial on 6 September 2017.  Two days were allocated for the hearing and priority was given in circumstances where the respondent was at that time resident in Country B.  Trial directions were adjourned to 6 March 2017.

9. The respondent was represented at the hearings on 26 October 2016 and 6 March 2017.  In addition to the original response and affidavit that he had filed on 19 May 2016 he filed a statement of financial circumstances on 27 September 2016 and a further affidavit on 30 September 2016.

10. On 1 December 2016 a notice of address for service was filed by the respondent’s new solicitors.  A notice of withdrawal as lawyer was filed by his original solicitors on 7 December 2016.

11. On 6 March 2017 orders were made for the filing and serving of trial affidavits and the payment of the hearing fee.  Trial directions were adjourned to 27 June 2017 with the court requiring Counsel briefed for trial to attend on that directions hearing.

12. On 9 May 2017 a notice of withdrawal as lawyer was filed by the respondent’s second solicitors.

13. Between 18 May 2017 and 21 May 2017 the applicant filed six affidavits of witnesses for trial, followed on 23 May 2017 by her own trial affidavit.

14. The applicant also filed an application in a case supported by an affidavit on 22 May 2017.  She sought in that application that on an ex‑parte basis the respondent be restrained by injunction from disposing of, transferring, withdrawing or otherwise interfering with any cash assets or investments or funds in bank accounts or other financial institutions held in his name in the Australia and New Zealand Banking Group, Country B Bank and Bank in the Country D.

15. She also sought an injunctive order that he be restrained from accessing any of his superannuation entitlements with Super Fund 1, Super Fund 2 or any other superannuation entitlements he held.

16. She further sought flagging orders with respect to those superannuation funds and that the respondent be restrained by injunction from dealing with any funds from any bank, credit union, building society or other financial institution into which he had paid any superannuation entitlements.

17. She sought a further order by way of injunction restraining the respondent from selling, transferring, assigning, encumbering or alienating any asset that he held including the property at Property A South Australia, the net proceeds of sale of a property at Property E, two properties in Country F and shares in Shares 3.

18. She also sought an order that he make discovery on oath and that he pay the costs of the application in a case.

19. The application was listed on 1 June 2017.

20. The court declined to make an ex-parte order.  Orders were made for service on the respondent of the application in a case and affidavit by way of express post to his residential address in Country B and by way of email.

21. The court ordered the respondent file and serve a notice of address for service within the Commonwealth of Australia on or before 7 June 2017, that on or before 16 June 2017 he file and serve a response to the application in a case together with an affidavit in support and that he attend on the hearing on 22 June 2017 either personally or by way of properly instructed legal representative.

22. The court ordered that failure by him to comply with the terms of the order would result in the application in a case and the threshold issue of the existence or otherwise of a de facto relationship being heard and determined on an undefended basis.

23. The respondent’s trial affidavit had been due to be filed and served on or before 17 May 2017pursuant to the order of 6 March 2017.

24. At the time of the hearing on 1 June 2017 the respondent had not filed any notice of address for service following upon Andersons Solicitors withdrawing as his solicitors by notice of withdrawal filed 9 May 2017.

25. He had not complied with the order for the filing of his trial affidavits.

26. He was not represented at the hearing on 1 June 2017 in circumstances where at that time the application in a case had not been served upon him.

27. Service of that application in accordance with the orders of the court of 1 June 2017 was proved by way of the affidavit of service filed on behalf of the applicant on 8 June 2017.  Mr Varvounis Lawyer deposed to posting the documents to the respondent in Country B on 1 June 2017 and emailing the same documents to the respondent on 1 June 2017.

28. There was no appearance by the respondent or any legal representative on his behalf at the hearing on 22 June 2017.

29. In those circumstances the court, being satisfied as to service, made orders restraining the respondent from disposing, transferring, withdrawing or otherwise dealing in any way with funds held in his name solely or jointly with another party in the Australia and New Zealand Banking Group, funds held by him in his sole name or jointly with another party in Country B Bank, fund held in his name or with another person with Country D Bank and any other funds held by him in any other institution whether that be located within the Commonwealth of Australia or overseas.

30. The court further ordered that the applicant forthwith do all things necessary to serve a copy of that order upon any bank or financial institution in which the respondent had any known cash assets or investments and that until further order the respondent be restrained by injunction from disposing, transferring, withdrawing or otherwise dealing in any way with the property at Property A in the state of South Australia, the net proceeds of sale of the property at Property E in Queensland, a motor vehicle registration … and shares in his name or held for his benefit in Shares 3.

31. An order was also made that the respondent pay the applicant’s costs of and incidental to that application in a case as well as costs of attendance at court on 1 June 2017 and 22 June 2017 with the quantum to be determined at trial listed for 6 September 2017.

32. The trial listed to commence on 6 September 2017 on the threshold issues was ordered to be heard and determined on an undefended basis.

33. A copy of that order was forwarded to the respondent by email by the court.

34. A further witness affidavit was filed by the applicant on 14 June 2017.

35. On 11 August 2017 an affidavit was filed by a solicitor employed in the applicant’s solicitor’s firm detailing in paragraph 7 part of an email received by the applicant’s solicitors from the respondent on 9 June 2017 wherein he said, inter alia “I do not see the point in spending what little money I have left to attend a hearing for which I am not allowed to put my case”.  The court had not by that date made an order for an undefended hearing.

36. On 29 August 2017 the applicant filed a further trial affidavit as well as an updated statement of financial circumstances.

37. At no time after the respondent’s second firm of solicitors filed their notice of withdrawal as lawyer on 9 May 2017 did the respondent file any further documentation as ordered, attend at any further hearing or participate by way of legal representation as he had done in the initial part of the proceedings.

38. I am satisfied that the respondent was served with all documents filed by the applicant, that he was represented between the commencement of the proceedings and May 2017 by two different firms of solicitors, and that he had every opportunity to participate in the hearing of the matter.

39. The court was aware of his residence overseas, and in those circumstances had given the matter a special listing to ensure that the inconvenience of travel was minimised.  In addition it would have been open for the respondent to seek to participate by telephone or video link.

40. Although I determined that the matter should be heard on an undefended basis, I was mindful that a response had been filed by the respondent on 19 May 2016 and that he had filed affidavits on 13 May 2016 and 27 September 2016 as well as a statement of financial circumstances on 30 September 2016.

41. I have considered this material in my determination of this application.

Background

1. At the time of the hearing on 6 September 2017 the applicant was aged 61 and the respondent 64 years.

2. It was common ground that the parties met in … when the respondent was attending a course.

3. The applicant was working as an health professional and continued to do so up until about 1996.  As and from 1999 the applicant has been in receipt of a disability support pension.

4. The respondent had three children who in 1990 were aged 12, 9 and 6.

5. The respondent, who at all relevant times worked overseas as a tradesman on a “fly in fly out” basis, had two children who in 1990 were aged 8 and 7.

6. It was common ground that in the latter part of 1990 the respondent paid for the applicant to visit him in Adelaide on two or three occasions and in 1991 the applicant moved to Adelaide, with her three children joining her in Adelaide shortly after that move.

7. The applicant moved into the respondent’s property at Suburb G.

8. The respondent resided in that property when he was not away with work, with his children also staying there on weekends when he was in Adelaide.

9. In or about 1995 the house property was demolished and a new house erected on the existing block.  During that time the respondent rented a property at Suburb G.  The applicant and her children moved to live in that property as did the respondent’s brother Mr H for a period of time.  The respondent lived there when he was not away working and his children stayed on weekends when he was not home.

10. Upon completion of the new property at Property G, the applicant and her children resumed residence in that property with the respondent also residing in that property whilst in Adelaide and his children staying on weekends and during school holidays when he was home.

11. In 1998 the respondent purchased a property at Property J.

12. The respondent lived in that property while he was in Adelaide.  The applicant and her children also lived in that property.

13. The respondent then purchased a property at Property K.  It is common ground that after that purchase the respondent stayed at that property when he was in Adelaide to carry out renovations, as well as undertaking employment with Labour Hire Companies.

14. During that time the applicant and her children continued to live at the Property J property but during time that the respondent was in Adelaide the applicant deposed to spending the majority of her time at the Property K property.

15. During this period the respondent had also purchased a property at Property L and for a period of time the applicant and her children lived in the Property L property whilst renovations continued with respect to the Property K property.

16. Ultimately the applicant and her children moved into the Property K property with the respondent living at that property whilst in Adelaide.

17. In or about 2004 the respondent sold the Property K property and purchased a house at Property M in Tasmania in his sole name.

18. The applicant moved back to Tasmania to live in that property with the respondent spending regular “fly in” time at the Tasmania house.

19. The applicant’s children remained in Adelaide.

20. In 2008 the applicant moved back to South Australia and moved back into the property at Property J with her children with the respondent living at that property whilst not working overseas.

21. Subsequently the respondent purchased a property at Property A.  The contract was originally signed by both parties but ultimately purchased in the sole name of the respondent.

22. The applicant moved into the property at Property A in or about 2008.  The respondent resided in the Property A property when not overseas for work.

23. It is the applicant’s case that a de facto relationship existed between the parties from early 1991 until March 2014.

24. It is the position of the respondent as deposed by him in his initial affidavit filed 13 May 2016 that at no time between the parties meeting in … in 1990 until March 2014 were the parties in a de facto relationship.

25. In paragraph 9 of the said affidavit the respondent said

    “I deny the existence of a de facto relationship.  The applicant and I remained close friends over the specified period and after 17 March 2014.  The friendship ended when the applicant instigated proceedings against me.  I was unaware of these proceedings until I received notice from her lawyers dated 22 December 2015.  Further;

    a: I am trying to prevent the applicant from using my car as it is my car not hers.  I have registration papers proving ownership.

    b: I want the applicant to vacate my home at Property A as she has neglected to pay the rent and illegally subletted the premises and the claims she has made against me in these proceedings.”

Relevant Legislation

1. The legislation concerning a declaration about the existence of a de facto relationship is contained in section 90RD of the Family Law Act 1975 (as amended) to section 90RG of the Act inclusive.

2. Section 90RD(1) is in the following terms:

   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 two persons.

3. Section 90RD(2) is in the following terms:

   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 d facto relationship was ordinarily resident during the de facto relationship.

1. Section 90RE(2)(1) provides that a section 90RD declaration has effect as a judgment of the court.

2. Section 90RF provides that any party to the proceedings may apply for a section 90RD declaration.

3. Section 90RG provides that a court may make a section 90RD declaration only if the court is satisfied that a person referred to in paragraph 90RD(1)(b) or both of those persons were ordinarily resident in a participating jurisdiction when the primary proceedings commenced.

4. Section 4AA of the Family Law Act (supra) defines a de facto relationship for the purposes of the Act.

5. Section 4AA(1) is in the following terms:

   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.

6. Section 4AA(1)(c) has effect subject to subsection (5).

7. Section 4AA(2) is headed “Working out if persons have a relationship as a couple”.  The section is in the following terms:

   Those circumstances may include any or all of the following:

   a)The duration of the relationship;

   b)The nature and extent of their common residence;

   c)Whether a sexual relationship exists;

   d)The degree of financial dependence or interdependence, and any arrangements for financial support, between them;

   e)The ownership, use and acquisition of their properties;

   f)The degree of mutual commitment to a shared life;

   g)Whether the relationship is or was registered under a prescribed law of a state or territory as a prescribed kind of relationship;

   h)The care and support of children;

   i)The reputation and public aspects of the relationship.

8. Section 4AA(3) 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.

9. In determining whether a de facto relationship exists section 4AA(4) provides that a court 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.

10. It was the case of the applicant, supported by affidavits filed by her on 16 March 2016, 22 May 2017 and 29 August 2017 that the parties lived in a de facto relationship from early 1991 until on or about 16 March 2014.

11. The respondent referred to their relationship as a close friendship in paragraph 9 of his affidavit filed 13 May 2016.

12. It was common ground between the parties that for the majority of the time between 1991 and March 2014 the parties resided in the same residence when the respondent was not at his place of work overseas.  The exception was a period of time when the respondent resided in the Property K property undertaking significant renovation.

13. It was the evidence of the applicant that from late 1991 until sometime in 1993 the applicant and her three children lived in a property owned by the respondent at Property G, with the respondent residing in that property and his children also spending time there on weekends and during school holidays when he was in Australia.  It was unclear from the evidence as to whether the applicant paid rent at the property.

14. She deposed to moving into a property rented by the respondent at Property G in the latter part of 1993 and living there with her three children.  The respondent’s brother visited from Country D for a few weeks and also lived at that property in the latter part of 1993.  It was common ground the applicant did not pay rent at that property.

15. She deposed to the respondent living with her in that property when he was in Australia.

16. The applicant deposed to the respondent’s “fly in fly out” shifts increasing from four weeks on and four weeks off at the beginning of the parties’ relationship at times to 12 to 16 weeks on and 12 to 16 weeks off as the years passed.

17. The applicant deposed to the new property at Property G being finished by about mid-1994 and to the applicant and the applicant’s children moving back into that property with the respondent living there whilst in Adelaide.

18. The Property G property was sold in 1998 and the respondent purchased a property at Property J.  The parties and the applicant’s children moved into that property with the respondent living there whilst in Adelaide.

19. In 1998 the applicant deposed to the parties purchasing a property at Property K in the sole name of the respondent, being a property that needed significant renovation.  She said that renovation work was carried out during 1999 at which time the respondent’s work roster was four weeks on and four weeks off.

20. She deposed to the respondent living at the Property K property whilst it was being renovated but to her spending the majority of her time with the respondent at the Property K property whilst he was at home.

21. The applicant deposed to the parties purchasing a further property in the sole name of the respondent at Property L in 1999.

22. She and her children moved into that property in 1999.  The Property J property was rented to tenants.

23. The applicant deposed to going to stay with the respondent at the Property K property in or about 1999, with her children remaining in the Property L property.

24. The applicant deposed to moving into the Property K property with her two younger children Ms N and Mr O when the kitchen renovations were completed in early 2000.  By then the applicant’s oldest child was living independently.

25. It was her evidence that by that time tenants were in the properties at Property J and at Property L.  She said the respondent’s “fly in fly out” shifts rotated on a four weekly basis at a time when he was working on various employments.

26. The applicant deposed to her daughter Ms N moving back to live with she and the respondent at the Property K property during 2003, and to then moving into the Property J property in early 2004, with her son Mr O moving into the same property a short time later.

27. It was her case that Ms N did not initially pay rent but later Ms N and Mr O paid rent in the sum of $150.00 per week to the respondent after that amount had been discussed as between the applicant and the respondent.

28. In 2004 the applicant deposed to the parties purchasing a property in the respondent’s name at Property M in Tasmania after the applicant initially raised with the respondent the topic of moving back to Tasmania.  The applicant deposed to moving into the Property M property after its purchase, and to the parties deciding that the respondent would continue the renovations at the Property K property in South Australia to prepare it for sale.

29. The applicant deposed to spending time with the respondent at the Property K property during his time at home and to him spending time with her at the Property M property during the time he was in Australia.  She said his works shifts were on a “four week on four week off” basis during 2004.

30. It was the applicant’s case that the respondent moved to the Property M property to live with her during his time in Australia in 2005, following upon the renovations of the Property K property which was sold in 2005.

31. The applicant deposed to the respondent’s work cycles of four weeks on and four weeks off continuing in 2006 and 2007.  She deposed to the respondent continuing to live with her at the Property M property in Tasmania during those years.

32. It was her case that the parties viewed properties in Adelaide during 2007 and moved back to South Australia in 2008.  She deposed to moving into the property at Property J in 2008 with her two children Ms N and Mr O and their respective partners, with the back rumpus room being converted into a bedroom for she and the respondent.

33. The applicant deposed to the Property A property being purchased by her on behalf of the respondent in the capacity as his attorney, pursuant to a power of attorney granted to her by the respondent in 1997, and to settlement occurring in 2008.  The parties moved into the Property A property, with the respondent staying there when he was in Australia at a time when his shifts remained four weeks on and four weeks off.

34. The applicant deposed to the Property J property being sold to her son Mr O in 2009, with the contract being signed by her as the appointed attorney of the respondent.

35. The applicant deposed to the respondent then working mostly in employment on a “four week on four week off” shift basis.

36. The applicant deposed to a further property being purchased in the name of the respondent at Property E in Queensland on … 2009 and it being rented to the respondent’s brother.

37. She deposed to the respondent’s time at home changing during 2009 when he left working on the various employment sites and performed contract work for a company called … .  During this time his time away from home varied between one and two days to one to two weeks.  She deposed to this resulting in the respondent being home more often than previously.  

38. She deposed to the parties remaining living in the Property A property during 2010 when the respondent’s absence from the home initially varied between one and two days or one to two weeks.

39. She said he commenced contract work in Country B during that year, eventually working for Employer during which time he would be away from Australia for 10 to 12 weeks and then home for two weeks.

40. The applicant deposed to him continuing to live with her at the Property A property during the time that he was in Australia.  She deposed to the work pattern of 10 to 12 weeks away and home for two weeks continuing during 2011 and 2012 but to the respondent being away longer in Country B towards the end of 2012 and home less frequently than he had ever been previously.

41. The applicant deposed to the respondent staying home for at least two weeks in May 2012 as well as various other fortnightly periods during that year.

42. The applicant deposed to continuing to live at the Property A property in 2013 but to the respondent only coming home on two occasions, firstly for his 60^th birthday for approximately 10 days during which time there was a dedication ceremony for the applicant’s grandson [Z], and for a week in 2013 following upon the birth of the applicant’s daughter Ms N’s child.

43. The applicant deposed to the relationship continuing notwithstanding the very little time the respondent spent with her in South Australia during 2013, and deposed to 568 Skype calls between the parties for 15 to 30 minutes duration between she and the respondent that year.

44. The applicant deposed to becoming upset that the respondent was coming to Adelaide on very rare occasions and to Skype communication with the respondent in 2013 resulting in the applicant becoming upset about the respondent allegedly admitting that he had had sex with another woman.

45. The applicant deposes to the respondent advising her he wished to purchase a house in Country P during 2013, to them discussing the purchase and to a property being purchased in Country P in 2013.

46. She deposed to the relationship between she and the respondent being strained in 2013.

47. The applicant deposed to the respondent returning to Adelaide on … 2014 and to the parties attending the applicant’s son Mr O’s 30^th birthday party together that evening and a baptismal mass for the applicant’s granddaughter the next morning.

48. The applicant deposes to confronting the respondent about being unfaithful in discussions at the Property A property in 2014 and to her telling the respondent that the relationship was over.

49. In the affidavit filed by the respondent on 13 May 2016 he deposed to the parties having a friendship over many years, to having a sexual relationship for approximately 12 months and to effectively assisting the applicant with housing and finance after she moved to Adelaide.

50. He deposed to purchasing a property in Tasmania after selling the Property K property and in circumstances where the applicant had suggested to him she wanted to return to Tasmania he said she could live in that property so that there was someone to look after it and he could have his dog back again.

51. He deposed to telling the applicant she could forgo rental payments, to paying her $800 per month to look after the property and to commencing to see a woman Ms Q, who visited him frequently while he was working interstate.

52. He deposed to the applicant deciding to move back to Adelaide and to him living in the country and asking her to delay her departure until he sold the house.  He said he could not afford to stay at the house in Tasmania both for insurance reasons and for his dog’s wellbeing.  He said his dog however passed way and he did not want to live in that property so it was sold and the applicant moved into the Property J property.

53. He deposed to going back to view and then purchasing the property at Property A and staying with the applicant in his home at Property J in the interim.

54. He deposed to having been generous towards the applicant because of the friendship he had with her and not because they were ever in a de facto relationship.

55. He deposed to recompensing the applicant for arranging for medication to be sent to him.  He said that all of the properties were purchased in his sole name, were not chosen by the applicant and were properties in which the applicant had no financial interest whatsoever.

56. He deposed to the applicant having known about his relationship with his current wife, to having no reason to visit Adelaide and to spending his holidays with his wife and sometimes his family in Country C.

57. He deposed to having told the applicant after the discussions in March of 2014, a time when he said the applicant had known of his relationship for some two years, that he would not leave her destitute and would give her a favourable option regarding the Property A property.

58. He deposed to ending a relationship with his then girlfriend Ms Q in or about early 2011 and then inviting his current wife Ms R to join him in Country B which she did.

59. He deposed to having told the applicant of those arrangements and to her expressing happiness, having previously expressed her opinion that Ms Q was a “gold digger”.

60. He said at that time he increased the applicant’s wages to $1000.00 per month.  He said he kept in touch with her as he needed to know what business was being carried on his absence which was part of why he was paying the applicant the $1000.00 per month.  He said he also communicated with her as a friend.

61. He said that although they lived under the same roof when he was in Australia they slept apart and shopped and attended events with his children and her children when they were young.  He said it was only natural that the applicant and her children attended if he had a barbeque.

62. He deposed to he and the applicant having a sexual relationship for approximately one year at the start of their friendship and to failing to understand why the applicant would expect him to be more generous as he was giving her and her children a furnished home for a more than generous amount.

63. He denied being unfaithful to the applicant and said that was not possible if you were not in a relationship with someone.

64. I am satisfied that from early 1991 until 2012 the respondent shared a common residence with the applicant at all times when he was in Australia on leave from his “fly in fly out” work overseas, save and except for a period of time after the purchase of the Property K property when the applicant and her children remained resident in the Property J property with the respondent residing at the Property J residence whilst renovations were being undertaken.

65. I find that during that time the applicant spent significant amounts of time with the respondent at the Property J property whilst the respondent was in Australia and I further accept the evidence of the applicant and find that during the period of renovation the Property J property was unsuitable accommodation for the applicant and her children as well as the respondent.

66. Even though the final hearing of this matter was conducted on an undefended basis I am, for the purpose of these reasons, taking into account the affidavit evidence filed by the respondent on 4 May 2016 and 30 September 2016.

67. The respondent was the sole registered owner of each of the properties in which both parties resided together from time to time.

68. The applicant did not adduce any evidence suggesting that she paid rent to the respondent with respect to her occupation or the occupation of herself and her three children in any of the residential properties to which I have referred.  She did adduce evidence as to the rental amounts paid to the respondent by her children when they were adults.

69. The respondent deposed in paragraph 14 of his affidavit filed 13 May 2016 that he offered to provide the applicant with accommodation if she moved to Adelaide until she was settled.  He makes no reference to the applicant paying rent at that property.  He did depose to her paying rent at the Property L property but gave no details.

70. In paragraph 19 of the same affidavit he deposes to having deferred any rental payments when the respondent rented the property at Property S whilst rebuilding the property at Property G.

71. In paragraph 21 of the same affidavit he refers to the applicant paying rent to him in respect of her occupation of the property at Property J but he give no evidence as to what amount of rent was paid by the applicant or how long the rent was paid to him.

72. In paragraph 26 of the same affidavit he refers to the property in Tasmania and to telling the applicant that she could forgo rental payments and that he would pay her $800.00 per month to look after the property.  He did not otherwise depose to any details of rental paid to him by the applicant.

73. The applicant’s affidavits deposed to the parties maintaining a sexual relationship from the period shortly after they met in 1990 until 2013.

74. Her evidence was that she advised the respondent that their relationship was over as a result of ascertaining that he was in another relationship, with that conversation occurring in 2014.

75. She deposed to having become suspicious about the respondent being unfaithful to her particularly in the early part of 2013 and to the respondent confirming her suspicions during a Skype telephone conversation in 2013.

76. The applicant deposed to telling the respondent that he had to make a choice as to whether their relationship continued and to the respondent telling her that he “would make a solid commitment to me and to our relationship, so I forgave the infidelity and our relationship continued”.

77. The respondent deposed in para 53 of his affidavit filed 13 May 2016 to having had a sexual relationship with the applicant for approximately one year at the start of their friendship.

78. In the applicant’s trial affidavit filed 23 May 2017 she deposed to the living circumstances of the parties in each year from 1990 to 2016 inclusive.

79. The applicant deposed in paragraph 22 of that affidavit to sharing a bedroom and a bed when she visited the respondent at his expense in 1990 and thereafter from 1991 to 2012 inclusive.

80. She deposed in her trial affidavit in paragraphs 44, 56, 72, 83, 91, 101, 111, 122, 135, 146, 155, 165, 180, 201, 221, 237, 249, 267, 283, 317, 328, 345 and 380 respectively to the parties sharing a master bedroom and a bed in the same residence whenever the respondent was in Australia during his shift rotations and to being in a sexual relationship for all of that time, save and except that in 2013 the applicant deposed to only having sexual intercourse in January.

81. The same evidence was given by the applicant in a much shortened form in paragraph 53 of her affidavit filed 16 March 2016.

82. The respondent’s evidence in response to the applicant’s evidence was that contained in paragraph 53 of his affidavit filed 13 May 2016 to which I have already referred, namely that the sexual relationship was only of about one year’s duration at the start of the parties friendship.

1. He did not respond to the allegation contained in paragraph 53 of the applicant’s affidavit filed 16 May 2016 that they had shared a bed throughout the entire relationship.

2. The applicant deposed in her trial affidavit filed 23 May 2017 to being employed from the time she came to South Australia and moved into the Property G residence owned by the respondent until early 1996 when she was injured at work.  The applicant deposed to resuming light duties for a time before going on WorkCover and to receiving a $20,000.00 payout from WorkCover due to the injury in 1997.

3. She deposed to sharing household bills with the respondent whilst she was working, to being financially responsible for her children and to commencing to receive a disability support pension during 1999.

4. The applicant deposed in paragraph 126 of her trial affidavit to speaking with the respondent about applying for the disability support pension and being told by him to advise Centrelink that she just looked after his properties and that he would say the same.

5. She deposed to the respondent telling her that she needed the extra money to live on and pay her share of the bills especially as her children were living with them.

6. In her first affidavit filed 16 March 2016 in paragraphs 54 to 60 inclusive the applicant deposed to initially sharing the household bills, the majority of which were in the respondent’s name.  She deposed to she and her children being included on the respondent’s private health insurance as dependents and to that health cover being utilised for her daughter’s tonsils being removed in approximately 2004.

7. She deposed to the respondent paying the bills when he was at home but when he was working overseas expecting her to do so despite her being unable to work from 1996.  This meant that the periods when the respondent was not at home were difficult financially, leading her to being unable to support herself during that time without Centrelink benefits.

8. In paragraph 195 of the applicant’s trial affidavit she denied the Tasmanian arrangement deposed to by the respondent and said the parties lived in the Property M property together, that if a household bill was due and the respondent was away working she used her own money to pay for it but that that did not happen very often as at that time the respondent was only working away for a month at a time.

9. She deposed to recalling the electricity bill was in her sole name, the home telephone bill was in joint names and the respondent paid the yearly council rates.

10. In the respondent’s affidavit filed 13 May 2016 he deposed to his financial contributions in paragraphs 57 to 59 inclusive.

11. He deposed in paragraph 57 to the applicant receiving rent assistance from Centrelink and to him paying utility connection fees but not consumption.

12. He deposed in paragraph 58 to increasing “the applicant’s wage” from $800.00 per month to $1000.00 per month, to contributing to the wedding costs of the applicant’s two children, and to lending the applicant’s eldest son approximately $7000.00 which he had not received back at that time.

13. He further deposed in the same paragraph to purchasing the applicant’s children their first cars, assisting the applicant to pay for a cruise and providing the applicant’s son and daughter-in-law with money to buy food for themselves and their baby when the son was unable to support his own family.

14. He further deposed to giving the applicant security in the event that he died.

15. In paragraph 59 he deposed to increasing “the applicant’s wage” to $1000.00 per month in January 2011 and in paragraph 60 to paying “the wage” to the applicant for, as she deposed to in paragraph 60 of her affidavit filed 16 March 2016, dealing with all of the parties legal issues and finances when the respondent was overseas as she was his attorney until May 2015.  She deposed to that including dealing with the parties’ financial adviser and maintaining all of their properties in the property portfolio including the collection of rent.

16. The applicant deposed in detail in paragraph 196 of her trial affidavit as to how the rent that she collected from the Property J property whilst the parties occupied the Tasmanian property was dealt with by her for the benefit of the respondent.  In paragraph 342 of her trial affidavit she deposed to the respondent suggesting to her in May 2012 that she withdraw $1000.00 from the respondent’s ANZ bank account for her personal use and to assist with the running costs of the Property A property as he was going to be away from home a lot more often.

17. The applicant deposed to the respondent telling her not to tell anyone about that arrangement.

18. She also deposed to the respondent suggesting to her that she use the money to visit her friends interstate and to him telling her that he did not want her sitting at home alone when he was away, or alternatively that she spend money on items for their grandson [Z].

19. The applicant deposed to continuing to have access to the respondent’s ANZ bank account between January and May of 2015 and to withdrawing $1000.00 a month from the account and paying the council rates, water rates and corporate fees until May 2015 when her key card was retained by the ATM.

20. The applicant also deposed in her trial affidavit to the parties attending upon a financial adviser together if the respondent was at home or on her own if he was away.

21. In paragraph 230 of the applicant’s trial affidavit she deposed to the respondent paying for her fare to travel to the Country D for her 50^th birthday and to the parties travelling together in Country P for the four week period of the respondent’s leave cycle.  The respondent agreed this travel occurred involved travelling with his family but said it was at her request and only as friends.

22. In 2013 the applicant went on a cruise with a female friend and she deposed in paragraph 379 of her trial affidavit to that trip having been paid for by the respondent.  The respondent agreed that he “assisted the applicant to pay for her cruise.”

23. It is common ground that all of the properties to which I have referred in these reasons were owned solely by the respondent and that there was no mutually owned real estate, although a vehicle was purchased in joint names.

24. The properties were all lived in by the applicant and at times her children at varying times between 1991 and 2014 and also during that same period by the respondent when he was home in Australia during his shift rotations.  At times the respondent’s children also lived in the properties, mainly on weekends and during school holidays.

25. The only property in which the respondent lived on his own for periods of time when he was in Australia was the Property K property, as a result of it being unsuitable for more than one person during the renovation period.  During this time the applicant spent considerable time at the property.

26. The applicant deposed to a very extensive commitment by the parties to a shared life, involving both the applicant’s children, the respondent’s children and an extensive network of friends and family of both the applicant and the respondent.

27. In the applicant’s first affidavit filed 16 March 2016 she deposed in paragraphs 64 and 65 to having been committed to the respondent for over 24 years and to the parties raising their respective children together.

28. She deposed to having cooked and cleaned for the respondent and maintained their homes over the years and to managing all of the respondent’s financial affairs when he was working overseas.

29. The applicant deposed to a belief that he parties would “grow old together”, and to often speaking of retirement plans involving retiring in Property A which was the reason for the purchase of the property in Property A.  This was denied by the respondent.

30. The applicant said in more recent years the respondent had started to say that it was too expensive to retire in Australia and that they should retire in Country C or Country F, but to the respondent knowing that that was not an option for her as she could not leave her children and grandchildren.

31. In the respondent’s affidavit filed 13 May 2016 he deposed in paragraphs 64 to 66 inclusive to his response to the applicant’s evidence.  He deposed to his children being in the custody of their mother due to the nature of his job and to the applicant receiving a wage to keep his home clean and maintained, as well as representing him in business matters when he was unable to attend personally.

32. He deposed to him choosing the Property A property, to the parties not talking of retirement and to the fact that growing old together was never discussed.  He deposed to advising the applicant that he would be retiring to either Country C or Country F and to the option of retiring overseas for the applicant not being a topic for discussion as she was never part of the retirement plans of he and his wife.

33. In paragraph 16 of the same affidavit of the respondent he refuted the evidence of the applicant in paragraph 16 of her affidavit filed 16 March 2016 and denied that the parties lived together as a family.  He deposed to living with his own children who comprised his family.

34. He went on to agree that his children stayed with him on weekends and school holidays when he was not away with work which was his only access to his own children.

35. The applicant deposed to her children being aged approximately 12, 9 and 6 when she met the respondent in 1990 and to the respondent’s children being approximately 7 and 8 years old.

36. It is common ground that the applicant’s children all lived with the applicant until they became adults and that the respondent’s children stayed with the respondent when he was home from his overseas shifts on weekends and during school holidays in the same household as the applicant and her children.

37. The applicant deposed at length in her trial affidavit filed 23 May 2017 to assistance being given to her by the respondent with raising her three children Mr T, Ms N and Mr O, to both parties giving her children gifts and to the respondent lending her children money in later years as well as buying each of her three children’s first cars.

38. She deposed to the respondent providing some financial contribution to her children Ms N and Mr O’s weddings and to saying that he would do the same for the applicant’s son Mr T if he and his partner ever married.

39. The applicant deposed to assisting with the care of the respondent’s children when they spent time with the respondent, the applicant and her children over the years, including providing them with clothing, cooking meals for them, washing their clothes and bedding, playing games with them and reading to them.

40. She deposed to the respondent’s children being an important part of hers and her children’s lives and to many family activities involving both sets of children including picnics, barbeques, birthday parties, family dinners and beach trips.

41. The applicant deposed in paragraph 442 of her trial affidavit to considering she, the respondent, her children and his children to be a family.

42. In the applicant’s first affidavit filed 16 March 2016 she deposed to both she and the respondent always holding themselves out to extended family and friends as a couple and to both of them travelling with family and friends including interstate, regional areas and overseas trips.

43. She deposed to attending many family functions together and being invited as a couple together including to friends birthdays, New Year’s Eve celebrations, dinners, weddings and funerals.

44. She deposed to receiving written communication from Mr U of … Financial Services to the parties jointly thanking them for meeting with him to discuss and update their financial situation.  A copy of the letter is annexed to that affidavit being annexure “13”.

45. Affidavits were filed by the applicant in support of the activities the parties undertook with various friends and relatives in the period from 1991 until early 2013.

46. Ms V deposed in her affidavit filed 21 May 2017 to socialising on a regular basis with the applicant and the respondent at the Property G property with her partner, including time with the children of the applicant and the respondent between 1991 and 1993.  Thereafter Ms V separated from her partner and she recalled spending social occasions with the applicant, the respondent and the respondent’s brother Mr H during 1994 and 1995.

47. She deposed to moving to Town W in 1995, to travelling to Adelaide every year to visit her family and to seeing the applicant and the respondent at least once a year socially during those visits.  She deposed to the applicant and respondent being invited to her father’s 60^th birthday party in … 2000 and to going to her parents’ home for the party in Property G.  She deposed to them being accompanied by the respondent’s mother who was in Australia at the time.

48. She deposed to marrying interstate in … 2004 and to inviting the applicant and the respondent to her wedding but to the respondent not attending as he was away working at the time.

49. She deposed to visiting interstate more frequently from 2004 and staying for one to two weeks each time and always seeing the applicant and hearing the applicant speak about the respondent and all five children including both the applicant and the respondent’s children as well as grandchildren when they arrived.

50. She deposed to attending the applicant’s daughter Ms N’s wedding in 2010 and observing the respondent in wedding photos being taken with the applicant and to the respondent being involved in all immediate family photos.  She deposed to the respondent giving a “father of the bride” speech at the wedding reception and to the applicant and respondent clearly presenting as a couple.  She deposed to a group including the applicant and the respondent going to the Pub to continue celebrating the marriage after the formal celebrations, to the respondent buying champagne and paying for rooms for herself and her parents at a local motel.

51. She deposed to attending with her husband in Adelaide in 2013 to celebrate the respondent’s 60^th birthday at a restaurant in Suburb X, with close friends and family of the applicant and the respondent being present for the celebration and to the applicant and the respondent presenting as a couple.

52. She deposed to being advised by the applicant in 2014 that the applicant and the respondent had separated.

53. She deposed to meeting up with the applicant and her daughter at a café in Suburb Y after that conversation and to that meeting being vivid because of the applicant crying uncontrollably and presenting as extremely upset about the separation.

54. She deposed to the applicant and respondent holding themselves out to be a couple in all interactions that she had with them between 1991 and 2014 and to holding themselves out to be a couple to other people she knew that also knew the applicant and the respondent, including her parents, her previous partner, her husband and the applicant’s children.

55. Affidavits were filed by Ms Z, Mr AA, Ms BB, Ms CC and Ms DD deposing to their knowledge of the applicant and respondent as a couple including their socialisation, their presentation as a couple and their engagement with the applicant and respondent as a couple.

56. The trial affidavits were all served on the respondent.

57. The respondent chose not to file any evidence in response thereto or to participate in the final hearing.

58. The respondent chose not to present evidence to the court about the issues to which I have referred other than the two affidavits he filed prior to the filing of the applicant’s trial affidavits and those of her witnesses.

59. Taking all of the matters to which I have referred into account, I am satisfied that the parties were in an intimate relationship between late 1990 and March 2014.

60. I find that between early 1991 and early 2013 the respondent resided with the applicant and her children and on occasions his children at the various residences he purchased both in South Australia and in Tasmania on all occasions when he was not overseas in his employment, save and except for a period of time when he stayed primarily at the Property K residence when it was being renovated.  I find that the periods of time that he spent at home with the applicant decreased from approximately 2012 onwards such that he only visited and stayed on two occasions in 2013 and the relationship ceased in March 2014.

61. I find that both parties contributed financially to their living expenses but that the respondent paid the purchase price of the various properties and the mortgage payments with respect to those properties.  I find both parties contributed toward household bills.  I find the respondent provided the applicant with money towards living expenses firstly at the rate of $800.00 per month and eventually at the rate of $1000.00 per month.

62. I reject the evidence of the respondent that the monies provided to the applicant were by way of wages to look after his properties.

63. I find that each party was primarily responsible for the costs of their own children but that financial assistance was provided by the respondent to the applicant’s children as they grew older and that both parties were involved in the care of all of their children during times when the respondent was in Australia and his children were also staying in the houses with the applicant and the respondent.

64. I find that both parties exhibited a high degree of mutual commitment to a shared life, that they engaged in public aspects of a shared life by way of regular communication and interaction with friends and extended family including travel with the respondent’s mother, brother and sister and that they both held themselves out as a couple to friends and family with whom they socialised over a period of many years.

65. I find that although there were significant periods of time when the respondent did not reside in the same household as the applicant it was in circumstances where his employment was primarily overseas, and when he was in Australia he and the applicant lived together in various premises from time to time on a genuine domestic basis.

66. I am satisfied that the relationship between the parties ended in March 2014 when the applicant became aware of the respondent being in a relationship with a woman from Country C and living with her in Country B.

67. I reject the affidavit evidence of the respondent to the effect that the applicant had known about that for some years and that he and the applicant were never in a relationship but simply friends who had had a sexual relationship for approximately 12 months in 1990/1991.

68. In addition to the matters to which I have referred, a power of attorney in which the respondent was named as the donor and the applicant as the donee was executed by the parties on … 1997.

69. It was an enduring power of attorney and deposited in the lands title’s office for registration on … 1998 at 11:00am.  The authority granted to the applicant pursuant to the enduring power of attorney was not subject to any conditions, limitations or exclusions.

70. The power of attorney as executed authorised the respondent’s attorney to do on his behalf anything that he could lawfully do by an attorney and it was to remain effective notwithstanding that he suffer any subsequent legal incapacity.

71. The applicant gave evidence to having signed the contract in respect of the sale of the Property J property to the applicant’s son Mr O for the respondent in her capacity as his attorney on … 2009.

72. In 2009 the respondent purchased a property at Property E in Queensland.  Annexure “H – 10” to the applicant’s trial affidavit is a copy of correspondence from the solicitors handling the conveyancing in relation to that sale to the applicant dated … 2009.

73. The correspondence was to advise her that the solicitor dealing with the matter was to be absent from the office between … 2009 and … 2009 and provided the applicant with alternative names and telephone numbers if she needed assistance in relationship to the purchase of the property.

74. The applicant deposed to advising the respondent that the relationship between them was over on 16 March 2014 following their attendance together at a baptismal mass for the applicant’s granddaughter [X].

1. Some days later, on 21 March 2014, the applicant’s evidence is that the respondent executed a will appointing her as his executor and leaving half of his estate to her.  Annexure “H – 26” to the applicant’s trial affidavit is a copy of the will of the respondent which provides for the respondent’s estate to be divided into four equal shares, two of which are bequeathed to the applicant provided that she shall survive him by 30 days and one each of the four shares provided to each of his children Mr H and Ms EE.

2. The applicant deposes to the respondent returning to the Property A property in May 2014, collecting the enduring power of attorney wherein she was appointed as his attorney and advising her that he would have the appointment revoked.

3. The applicant deposes in her trial affidavit in paragraph 400 to she and the respondent continuing to communicate via telephone and email post separation and she refers to annexure “H – 27” to that affidavit being a copy of email correspondence between she and the respondent dated 8 October 2014 and the response 10 October 2014.  Both parties refer in their respective communication with the other of them to the breakdown of their relationship.

4. The applicant deposed to having had access to the respondent’s ANZ bank account between January 2015 and May 2015 to the extent of $1000.00 per month and she deposes to the respondent having given her the sum of $2000.00 post separation to pay the council rates, emergency services levy and corporate fees for the Property A property in circumstances where she had otherwise paid those expenses out of her own account.

5. Annexure “H – 28” to the applicant’s trial affidavit are copies of emails between the parties on 21 August 2015 clearly referring to negotiations to resolve financial issues.  In correspondence from the respondent to the applicant he refers to being prepared to abide by his offer of giving her the equivalent of $400,000.00 plus until she advised him that she was not satisfied and he then advised that he would pursue another avenue.

6. The applicant deposed to the respondent continuing to pay her private health insurance benefits until December 2015 which is also confirmed in the respondent’s email to the applicant annexed to her affidavit and dated 21 August 2015.

7. These additional factors I find further confirm that having regard to all of the circumstances of the relationship between the applicant and the respondent it was a relationship of a couple living together on a genuine domestic basis.

8. During the entire period of the relationship the respondent worked outside of the Commonwealth of Australia on a “fly in fly out” basis with his shift rotations varying between one to two weeks away and one to two weeks home and extending as far as 12 to 16 weeks away and 12 to 16 weeks at home and other variations of the amount of time out of the country and in the country.

9. There is no evidence however adduced by either of the parties to suggest that when the respondent returned to Australia after his work shifts he did other than live in a genuine domestic basis with the applicant.

10. In those circumstances, having considered the aspects of the parties relationship between 1990 and 16 March 2014 against the circumstances referred to in section 4AA(2) of the Family Law Act (supra) and having regard to all of the circumstances of that relationship I am satisfied that the parties had a relationship as a couple living together on a genuine domestic basis between early 1991 and 16 March 2014.

11. Accordingly I intend to make a declaration pursuant to section 90RD that a de facto relationship existed between the applicant and the respondent. I am further satisfied that the applicant was ordinarily resident in the Commonwealth of Australia when the primary proceedings commenced[1].

    [1] Section 90RD Family Law Act 1975 (as amended)

12. As well as the declaration sought by the applicant in her application filed 16 March 2016 she also sought orders for settlement of property.

13. The orders sought in that application were amended by the time of trial as set out in the submissions of the applicant’s counsel in paragraph 1.2.  The orders sought by the applicant at hearing were:

    1)That the property located at Property A in the state of South Australia be transferred into the wife’s sole name.

    2)That the husband do transfer the motor vehicle into the wife’s sole name.

    3)That the wife be authorised by operation of this order to access all monies held in the husband’s ANZ account BSB….

14. She further sought that she retain as her sole property any monies standing to her credit in any financial institution, all items of furniture, articles of domestic use or ornament and jewellery presently in her possession, any superannuation benefits to which she is entitled and any interest she may have in any life insurance or endowment insurance policy and otherwise any other personalty in her possession.

15. The court’s power to alter property interests following upon the breakdown of a de facto relationship is contained in section 90SM of the Family Law Act (supra).  Section 90SB of the said Act provides that the court may make an order in relation to a de facto relationship only if it is satisfied:

    a)That the period, or the total of the periods, of the de facto 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 paragraphs 90SM(4)(a), (b) or (c); and

    ii)A failure to make the order or declaration would result in serious and injustice to the applicant; or

    d)That the relationship is or was registered under a prescribed law of a state of territory.

16. I have found that the period of the de facto relationship between the applicant and the respondent spanned the years from early 1991 to 16 March 2014, a period of approximately 23 years.

17. Section 90SK of the Act[2] requires that the court be satisfied that either or both of the parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the application for the order was made and that either or both parties to the de facto relationship were ordinarily resident during at least a third of the de facto relationship or the applicant for the order made substantial contributions in relation to the de facto relationship of a kind mentioned in paragraphs 90SM(4)(a), (b) or (c).

    [2] Family Law Act (supra)

18. In this particular matter the applicant was ordinarily resident in a participating jurisdiction when her application for settlement of property was made and I am satisfied, for the reasons to which I have already referred in my consideration of the existence or otherwise of a de facto relationship, that both parties were ordinarily resident during at least a third of the de facto relationship.

19. Section 90SM(1) of the Act[3] is in the following terms:

    In property settlement proceedings after the breakdown of a de facto relationship, the court may make such order as it considers appropriate:

    a)In the case of proceedings with respect to the property of the parties to the de facto relationship or either of them – altering the interest of the parties to the de facto relationship in the property; or

    b)In the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the de facto relationship – altering the interests of the bankruptcy trustee in the vested bankruptcy property.

    [3] Family Law Act (supra)

20. This order can, pursuant to section 90SM(1)(c), include an order for a settlement of property in substitution for any interest in the property.

21. Section 90SM(3) provides that a court must not make an order under this section unless it is satisfied that in all of the circumstances it is just and equitable to make the order.

22. As well as any order for settlement of property that is made by the court having to be an order that is just and equitable in all of the circumstance of the case, the court must also be satisfied that the making of any order is just and equitable[4].

    [4] Watson & Ling (2013) FLC 93-527

23. I am satisfied that in this matter it is just and equitable for an order for settlement of property to be made in circumstances where the parties were in a de facto relationship for approximately 23 years, separated on a final basis in March 2014, remained in communication subsequent to that time until at least the latter part of 2015 and engaged in negotiations regarding settlement of property.  I have found that a de facto relationship existed between the parties and further that the length of time of the de facto relationship and the geographical requirements to invoke the jurisdiction of the court have both been met in the circumstances of this case.  In addition I am satisfied that the originating application was filed within the time limit specified in section 44(5) if the Act[5].

    [5] Family Law Act (supra)

24. In those circumstances the applicant’s claim must be considered by taking into account the factors referred to section 90SM(4) of the Family Law Act (supra).

25. To do so I must firstly identify the property that is available for distribution.

Asset Pool

1. In the applicant’s affidavit filed on 16 March 2016 in support of her application she deposed in paragraph 74 to the assets, liabilities and financial resources of the parties to the extent of her knowledge of same, in circumstances where she deposed to no disclosure having occurred.

2. The assets to which she deposed were as follows:

-    Property A property (Mr Costanzo’s name)	$500,000.00
-    Investment property in Queensland (Mr Costanzo’s name)	unsure of value – purchased in 2009 for $356,298.45
-    Property in Country F (Mr Costanzo’s name)	unsure of value – purchased for €330,000.00 (AUD $524,693.00 at current exchange rate) approximately 2.5 years ago.
-    Motor vehicle (in Mr Costanzo’s name but in applicant’s possession)	estimated value $25,000.00
-    Super Fund 1 pension account (in Mr Costanzo’s name) at 30 June 2014	$424,313.91
-    ANZ bank account (in Mr Costanzo’s name)	balance at separation $26,600.71
-    Bank account in Country D (Mr Costanzo’s name)	balance unsure
-    Bank account in Country B (Mr Costanzo’s name)	balance unsure
-    Bank account in Country C (in Mr Costanzo’s name)	balance unsure
-    Shares in Shares 3 (Mr Costanzo’s employer)	value unknown

1. To the best of the applicant’s knowledge, therefore the value of the relevant assets was approximately $1,856,906.07.

2. On 27 September 2016 the respondent filed a statement of financial circumstances.  In part I of that document being the section dealing with property owned by him he deposed to owning the following property:

-    Property A South Australia	$430,000.00
-    Property E Queensland	$300,000.00
-    Country F property	$300,000.00
-    Funds in ANZ Account Number …	E$12,000.00
-    Funds in Country B Account Number …	E$28,000.00
-    Funds in Country D Savings Bank	$15,000.00
-    Motor vehicle in his name	E$15,000.00
-    Household contents	$10,000.00
-    Super Fund 3 Superannuation Plan	E$430,000.00
-    TOTAL	$1,540,000.00

1. In paragraph 74 of the respondent’s affidavit filed 13 May 2016 he deposed to the property in Property E in Queensland, not being an investment property but his brother’s home.  He deposed to the motor vehicle belonging to him.  In paragraph 25 of the second affidavit filed by the respondent on 30 September 2016 he deposed to the Property E property in Queensland never having been an investment of he and the applicant but merely an investment of his purchased mainly to assist his brother who had health issues.

2. He further deposed in paragraph 27 to his sister residing in Country F and collecting rental from his property there.  Annexed to that affidavit was correspondence from solicitors in Country F regarding the purchase costs of the Country F property in the sum of €344,849,20.

3. The property at Property A was ultimately valued and the valuation filed annexed to the affidavit of Ms FF filed 1 September 2017.  The valuation ascribed a value of $485,000.00 to the said property.

4. In the respondent’s statement of financial circumstances he deposed to only one liability of $30.00 with respect to a credit card.

5. There was no evidence before the court as to when the respondent had commenced accumulating his superannuation entitlements nor what property he had owned at the commencement of the parties de facto relationship.

6. On 9 May 2017 the second firm of solicitors that had been instructed by the respondent in these proceedings filed a notice of withdrawal as lawyer.

7. On 22 May 2017 the applicant filed an application in a case to which I have previously referred herein, seeking an urgent hearing on an ex-parte basis and orders that the respondent be restrained from dealing with assets as specified in that application.

8. The basis of that application was the applicant’s concern that the respondent was undertaking a course of action designed to remove assets from the Commonwealth of Australia and effectively the jurisdiction of the court.

9. In paragraph 13 of her affidavit filed on 22 May 2017 she deposed to the respondent selling the property in Property E Queensland that was unencumbered and to not being advised of the sale or the disposition of the proceeds of sale.

10. Annexure “H1” to the applicant’s affidavit was an historical title search with respect to the relevant property indicating that the respondent had purchased the property on … 2009, had sold the property on 10 January 2017 and that at the time of sale the property had been unencumbered.

11. Annexure “H2” to the applicant’s affidavit was a copy of communication from Super Fund 1 to the respondent dated … 2010 in relation to a pension account in respect of which the named beneficiary was the applicant.  The applicant was described in that document as “spouse”.

12. Annexure “H3” to the applicant’s said affidavit was titled “Super Fund 1 annual pension report 1 July 2013 to 30 June 2014”.  The document indicated a previous total as at 1 July 2013 of $0.00 with an increasing account value by way of rollovers in the sum of $438,358.76, decreases in account value arising from pension payments and fees and expenses of $18,529.39, and earnings on investments in the sum of $4,489.54, giving a total at 30 June 2014 of $424,313.91.

13. Annexure”H4” to the applicant’s affidavit was a copy of correspondence to the respondent dated 2 March 2017 from Super Fund 1 confirming payment from the Super Fund 1 pension account paid to Australia and New Zealand Banking Group to account number … to the value of $280,000.00.

14. The final benefits statement comprising part of that correspondence indicated an opening balance of the account as at 1 July 2016 of $413,516.66 with a closing balance as at 22 April 2017 of $0.00.  The document also reflected withdrawals from that investment in the sum of $280,000.00 by way of a benefit payment on 2 March 2017, a further $139,582.89 by way of a benefit payment on 7 March 2017 and a final benefit payment on 22 April 2017 in the sum of $330.78 being the total withdrawals from that Super Fund 1 investment.  The applicant deposed to being concerned that the respondent was “draining” his Super Fund 1 pension account.

15. In paragraph 22 of her affidavit she deposed to speaking with the ANZ lending manager on 17 May 2017 by telephone as a result of her concern that the funds were being placed into the respondent’s personal account.  She deposed to being informed there was about $18,000.00 in the ANZ account and that the bank held a power of attorney from the respondent in her favour over the ANZ account.

16. She deposed in paragraph 23 of her affidavit to withdrawing the sum of $9,000.00 from the ANZ account to preserve that sum for the determination of the court, with the intention of withdrawing the remaining $9,000.00 on 19 May 2017.  The applicant then deposed to repaying the amount of $9,000.00 that she had withdrawn from the ANZ account back into that account on 19 May 2017.

17. The applicant deposed to the respondent working in Country B and having done so for many years, and annexed his Country B tax returns for the years ended 2012, 2013, 2014 and 2015.  She further deposed to the respondent having paid tax in Country GG in the period 2009 to 2010 and to information provided by the respondent in his affidavit filed 30 September 2016 to the effect that he had married a woman with whom he had commenced a relationship in 2008 in Country C.

18. She further deposed to the respondent having real property in Country F and to her concerns that he was able to dispose of assets quickly and easily in order to defeat her application for settlement of property.  Orders as set out in paragraphs 29 to 32 of this judgment were made on 22 June 2017.

19. Taking all of those matters into account including the evidence of the applicant and the respondent I find for the purposes of these proceedings the asset pool available for distribution between the parties to be as follows:

-    Property at Property A South Australia	$485,000.00 (valuation)
-    Proceeds of property at Property E Queensland	unknown but purchase price in 2009 $356,299.00
-    Funds in ANZ bank account in respondent’s name at separation	E $26,600.00 (applicant’s evidence)
-    Funds in Country F bank account	E $28,000.00 (respondent’s evidence)
-    Funds in Country D Savings Bank	E $15,000.00 (respondent’s evidence)
-    Motor vehicle	E $25,000.00 (applicant’s evidence)
-    Super Fund 1 pension account	$424,314.00 (applicant’s evidence)
TOTAL:	$1,359,613.00

1. The value I have ascribed to the property at Property A is a value obtained by way of a formal valuation.

2. The value I have ascribed to the Queensland property is greater than that ascribed to that property by the respondent, but was the cost price of the property in … 2009[6].

   [6] Applicant’s trial affidavit filed 23 May 2017 “H10”

3. It was the applicant’s case that the respondent owned two properties in Country F and she alleged in her trial affidavit filed 23 May 2017 (paragraph 377) that the respondent purchased a property at Country F in August 2013.  Her trial evidence contained no further detail in relation to that property nor was any value ascribed to it in her trial affidavit.

4. She sought however that a property at Country F be included in the list of assets in circumstances where the purchase price for that property was on her evidence E €330,000.00.

5. In the respondent’s affidavit filed 13 May 2016 he deposed, in answer to the evidence contained in paragraph 74 of the applicant’s affidavit filed 16 March 2016, that the house in Country F was purchased on 24 August 2015.  That evidence is confirmed by the material contained in annexure “H7” to the affidavit of the applicant filed 22 May 2017.That purchase therefore was made by the respondent some 17 months after the parties’ separation.  The total purchase price of the property inclusive of fees as confirmed by the material contained in the said annexure was €344 849,20, being AU$549,818.00.

6. There is no evidence about the date or purchase price of any other property that may have been purchased in Country F other than that contained in annexure “H23” to the applicant’s trial affidavit filed 23 May 2017.  This consists of an email from the respondent to the applicant at 3:33pm on Monday 8 July 2013 attaching a Google Earth address for a property and a message “look at the second one – …”.  

7. There is no doubt that that message was sent at the time deposed to by the applicant but I am not satisfied on the evidence available to me that I could make a finding as to whether a property was purchased at that time during the relationship in Country F and if it was, for what price.  I have no means of ascribing any value to that asset even on the evidence of the applicant.

1. I find that the property purchased by the respondent in August 2015 in Country F should not be included in the list of assets available for distribution between the parties.

2. There is no evidence before the court as to the source of funds for the purchase of that property and even in circumstances where the court is entitled to take a “broad brush approach”[7] in circumstances where in this case one party has not participated in proceedings and therefore failed to disclose all relevant information, I am concerned that to include this asset may lead to an injustice to the respondent over and above that which might be acceptable in all of the circumstances of the case.  I do not consider that taking this approach is creating an injustice towards the applicant, in circumstances to which I will refer later herein.

   [7] Weir & Weir (1993) FLC92-338 at page 75,594

3. I likewise decline to include any amount in the calculation of the asset pool for household furniture and effects.  The applicant estimates the household contents and effects in her possession to have a value of $5000.00 with the respondent’s evidence being that they are worth $10,000.00.  There is no valuation with respect to household furniture and effects before the court, the household furniture and effects were no doubt accumulated over a long period of time and the respondent has not resided in Australia for some years.  In addition, I do not consider that adding any amount for household furniture and effects will affect the overall outcome of these proceedings.

4. Taking all of those matters into account I find that the total value of assets available for distribution between the parties is $1,359,613.00.  Neither party deposes to any liabilities of significance.

5. It is unfortunate if the findings in relation to the extent of the asset pool and thereafter associated findings in relation to percentage adjustments in favour of each party result in an outcome that is less favourable to the husband than it should be.

6. I have no alternative in this matter, in circumstances where the respondent failed to continue participating in the proceedings, other than to adopt the approach of the Full Court in Weir & Weir (1993) FLC92-338 at page 75,594 where their Honours said:

   “…we appreciate that this is something of a broad brush approach, but as we have said, where there is clear evidence on non-disclosure as there was here the court should not be unduly cautious about making findings in favour of the other party…”.

Financial Contribution

1. I find, for all of the reasons given herein in relation to the employment history of both of the applicant and the respondent, that it was the respondent who made the overwhelming financial contribution towards the acquisition of the property now available for distribution between the parties.

2. I find that both parties contributed to general household expenses during the period of the parties’ cohabitation, with the applicant being able to contribute from her wages between the commencement of cohabitation and her ceasing any significant employment in 1996 and with the applicant working fulltime through the period of the relationship.

3. The applicant was in receipt of Centrelink benefits from in or about 1999 and remained in receipt of benefits to the date of trial.

4. I am satisfied that from this income she contributed to the welfare of the family as did the respondent noting that at the commencement of cohabitation both parties had young children to support.

5. I am satisfied that not only did each of the parties make financial contributions to the welfare of the family constituted by them and by their respective children but that they both also contributed in the capacity of homemaker or parent to children who formed part of the household, with the applicant making a significantly greater contribution in that regard in circumstances where the respondent was away from the home for significant periods of time.

6. I find that the applicant contributed to the welfare of the respondent’s children financially and in her capacity as homemaker or parent and further, that the respondent contributed to the welfare of the applicant’s children both financially and in his capacity as homemaker or parent.  The applicant gave extensive evidence in her trial affidavits as to the many family activities enjoyed by the respondent and his children and she and her children as a family unit.  These activities continued will after the children reached the age of 18 years.

7. For those reasons I find that the parties’ contribution during the period of the relationship to the assets available for distribution between them should be assessed as being equal.

8. I find that post separation the respondent contributed to the welfare of the family by way of the applicant being able to remain living in freehold accommodation and for some time post separation continuing to be able to access the sum of $1000.00 per month from the respondent’s bank account.

9. I find however that there should be no post separation adjustment made in favour of the respondent in circumstances where the applicant remained reliant on Centrelink benefits for her day-to-day living expenses and where, on the only evidence available to me, the respondent continued to earn a very significant income, the applicant continued to be unable to work, and in which circumstances those contributions would more properly be determined to be by way of spousal maintenance.

s.90SF(3) Factors

1. The respondent deposed in her further trial affidavit filed 28 August 2017 to

   -her work capacity since 1997;

   -her reliance on a disability support pension;

   -the respondent earning significant income for many years during the period of the parties relationship;

   -her non‑financial contributions during the period of the parties relationship as specified in paragraphs 53 to 65 of that affidavit;

   -her lack of any superannuation;

   -her concern about meeting her future financial needs in the circumstances of her disability; and

   -utilising income she had earned during the relationship for household and her children’s expenses.

2. She deposed to the ability of the respondent, throughout the relationship, to earn significant income through his overseas work and to being unaware of him having any significant medical complaints or conditions throughout the course of the relationship or being other than in good health.

3. At the time of trial the applicant was aged 61 years and the respondent 64 years.  The applicant’s evidence was that she had been unable to work outside of the home since 1997, having been on WorkCover since early 1996.

4. She deposed to having been diagnosed with fibromyalgia in 1997 resulting in her suffering chronic pain.  She deposed to being unlikely to gain employment due to her injury and age and to having undergone surgery in 2004 and 2008.  She deposed to having been on a disability support pension since 1999.

5. The applicant deposed to having no knowledge of any ill health being suffered by the respondent throughout or after the period of the relationship and to her understanding that he continued to be employed overseas in highly remunerated work.  In paragraph 31 of her trial affidavit filed 29 August 2017 she deposed to his 2015 Country B taxation return indicating earnings in the Australian dollar equivalent of $252,622.00.  

6. The applicant only has commitments with respect to supporting herself.

7. The respondent deposed to being responsible for providing support for not only himself but his wife, two school children and his sister and brother.  He gave no evidence as to whether the children were children of the relationship between he and his wife or his wife’s children from another relationship.

8. I am not satisfied that for the purposes of these proceedings the respondent has a commitment to support anyone other than himself.  He did not give any evidence as to whether his wife was employed or indeed any financial information whatsoever regarding his living circumstances at the time of trial.

9. During the period of the de facto relationship the parties enjoyed a good standard of living.  The respondent bought and sold various properties from monies he earned in his employment which provided a reasonable standard of living for the applicant, the respondent and their respective children from time to time.

10. The respondent lived permanently overseas post separation and only spent limited time in Australia in 2013 and 2014 immediately prior to separation.  There is no evidence before the court as to his standard of living at the time of the trial.  He spent significant periods of time in Country GG, Country B and Country C during the period of the relationship and lived in both Country B and Country C post separation.

11. Post separation and to the time of trial the applicant remained living in the property at Property A.  It was at all times freehold.

12. The applicant’s only source of income at the time of trial was her Disability Support Pension.  I find that if she was required to vacate that property and any order was made for its sale she would be in a position where, at the age of 61 and with no prospects of employment, it would be impossible for her to maintain a standard of living that would be reasonable in all of the circumstances of this case.

13. The respondent deposed to cohabitating with his wife and two children.  The respondent provided no evidence to the court in his statement of financial circumstances filed 27 September 2016 as to the financial circumstances of his cohabitation with his wife and children and deposed to an average weekly income of $434.00.  He deposed to total personal expenditure of $234.00.

14. It was open to the respondent to put material before the court as to all of the financial circumstances relating to his cohabitation as well as details of his employment or otherwise and any other matters pertaining to his financial circumstances.  The evidence before the court from the respondent in relation to all of those issues was woefully inadequate.

15. I am satisfied that there are no other factors contained in section 90SF(3) of the Family Law Act 1975 (supra) that are relevant to the circumstances of this case.

16. Taking into account the known circumstances of the applicant to which I have referred and the lack of evidence on the part of the respondent to clarify his circumstances in terms of his state of health, ability for appropriate gainful employment, commitments to support himself, his living circumstances and the financial circumstances relating to his cohabitation, I am satisfied that there should be an adjustment of 15% in favour of the applicant.

17. Such an adjustment would result in an overall distribution of the parties’ assets as to 65% thereof to the applicant and 35% thereof to the respondent.

18. In circumstances where I have found the value of the asset pool to be $1,359,613.00, that would result in the applicant retaining assets to a value of $883,748.00.

19. The applicant currently has in her possession the following assets:

-    Property A property	$485,000.00
-    Motor vehicle	$25,000.00
TOTAL:	$510,000.00

1. On 22 June 2017 the court restrained the respondent from accessing his funds in the ANZ account number ….

2. The evidence of the applicant in her affidavit filed 22 May 2017 was that at separation that account held $26,600.00 but that at the time of her discussion with the ANZ lending manager on 17 May 2017 she understood the amount in that account to be approximately $18,000.00

3. Assuming that such funds are still available to the applicant, the assets in her possession or control currently stand at $528,000.00.  This amounts to 39% of the asset pool.  Such a distribution is less than the amount to which I have found the applicant would be entitled.

4. That is particularly so where in circumstances where I have excluded any value for the property in Country F that the respondent acknowledges he owns in his affidavit evidence and further not taking in account a second property in Country F that the applicant deposed to having been purchased in 2013. This is in circumstances where there was no evidence upon which I could rely to support any finding of existence or value.

5. The applicant’s counsel however conceded that in reality the only assets available for distribution to the applicant are the Property A property, its contents, any monies still standing to the credit of the respondent in the ANZ bank account to which I have referred in the respondent’s name and the motor vehicle.  I intend to order that the applicant retain these assets.

6. I cannot be satisfied that such a distribution of assets is just and equitable in circumstances where the respondent did not participate in the proceedings leaving the court lacking significant and relevant information as to the true extent of the asset pool.

7. With respect to his superannuation entitlements of $424,314.00 as at 30 June 2014 these funds were removed by him from his Super Fund 1 pension account, initially deposited in his ANZ account and then removed by him from that account save and except to the extent of approximately $18,000.00.

8. It may be that the amount of $18,000.00 formed part of the pension account funds withdrawn by the respondent, and so to that extent an injustice may have been done to the respondent by the court effectively including that amount “twice”.  

9. In all of the circumstances of this case however I do not consider such an outcome is prejudicial to the respondent.  The respondent chose not to participate in these proceedings and put all of the information that was available to and known to him before the court to have that taken into account in the proper way. He has retained assets to a greater value than is just and equitable in the circumstances of this case.

s.128 Evidence Act 1995 (Cth)

1. The applicant was, at the time of trial and for some 18 years previously, in receipt of a Disability Support Pension.  This was during a time that I have found that a de facto relationship existed between the applicant and the respondent.

2. The applicant’s evidence was that the de facto relationship was not disclosed to Centrelink at any time during the period of the relationship or upon the cessation of the relationship.  Her evidence was that the respondent had advised her to answer any query from Centrelink to the effect that she was receiving money from him to assist with the upkeep and management of his properties.  She further deposed to having no other means of supporting herself during periods when the respondent was absent from the Commonwealth of Australia and not providing her with any regular source of funds to cover household expenses until 2010.  She deposed to these matters in:

   -paragraph 316 of her trial affidavit filed 23 May 2017;

   -paragraphs 428 to 432 inclusive of her trial affidavit filed 23 May 2017; and

   -paragraphs 36 and 37 of her further trial affidavit filed 29 August 2017.

3. In submissions the applicant’s counsel sought that the court grant a certificate to the applicant pursuant to the provisions of section 128 of the Evidence Act1995 (Cth) in circumstances where the wife had been required to rely on the evidence in her trial affidavits to support her claim that a de facto relationship existed between the parties.

4. Had Centrelink known of the existence of the de facto relationship at the time the applicant became entitled to receive Centrelink benefits I find that there is little doubt that her entitlement to same would have been considered against a background of the financial circumstances of the household.  Taking into account the high income earned at all times throughout the relationship by the respondent it may very well have been that the payment of benefits to the applicant would not have been approved.

5. I am satisfied on the evidence of the applicant and the respondent that the respondent was at pains throughout the relationship to create an impression, other than in the environment of family and friends, that he and the applicant were merely friends and not in a de facto relationship.

6. I accept the evidence of the applicant that the respondent told her how to respond to Centrelink if any questions were asked about her financial circumstances, and that the applicant followed his instructions. 

7. The court of course has a discretion as to whether or not it should bring breaches of the law to the notice of the Commonwealth Attorney General if the court considers that a party has breached a law of the Commonwealth.

8. I am not satisfied on the evidence before me that the applicant has breached a law of the Commonwealth.  The circumstances of her seeking and being granted Commonwealth benefits is unclear.  I find that the respondent deliberately endeavoured as clearly set out in both affidavits filed by him, to enjoy the benefits of a mutually satisfying emotional and sexual relationship with the applicant between 1990 and early 2014 but maintained complete control of his finances to the exclusion of the applicant to present, for legal reasons, a relationship consisting of friendship, the sharing of houses and the applicant being a caretaker for his property while he was absent overseas.

9. To the extent that it is necessary I grant a certificate pursuant to section 128 of the said Evidence Act1995 (Cth) in relation to all of the evidence relied on by the applicant to support her claim of a de facto relationship and an order for settlement of property. In circumstances where all of her evidence was by way of affidavit in an uncontested hearing and therefore no transcript records that evidence, I find that the certificate should apply to all affidavits filed herein by her.

10. For those reasons I make the following order.

I certify that the preceding three hundred and thirty three (333) paragraphs are a true copy of the reasons for judgment of Judge Mead

Date: 20 February 2019