Lao and Wei - [2018] FamCA 893

FAMILY COURT OF AUSTRALIA

LAO & WEI

[2018] FamCA 893

FAMILY LAW – DE FACTO RELATIONSHIP – Whether the parties were in a de facto relationship for a period after their divorce –Where the husband’s evidence lacked credibility – Where some aspects of the wife’s evidence were implausible – Where contemporaneous evidence suggested that the parties were in a de facto relationship – Where the parties remained in a sexual relationship until July 2016 – Where the parties were financially intertwined – Where the parties continued to have a shared life – Where the relationship was viewed by persons as one of husband and wife – Declaration made that the parties were in a de facto relationship.

Family Law Act 1975 (Cth) ss 4AA, 90RD, 90SM

Jonah v White [2011] FamCA 221
Moby v Schulter (2010) FLC 93-447
KQ v HAE [2007] 2Qd R 32
Vaughan v Bele [2011] FamCA 436
Taisha & Peng [2012] FamCA 385
JRR v PH [2005] QSC 253
Zau v Uongh [2013] FamCA 347

APPLICANT:

Ms Lao

RESPONDENT:

Mr Wei

FILE NUMBER:

MLC

7788

2016

DATE DELIVERED:

6 November 2018

PLACE DELIVERED:

Cairns

PLACE HEARD:

Melbourne

JUDGMENT OF:

Tree J

HEARING DATE:

1, 2 and 3 October 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Love

SOLICITORS FOR THE APPLICANT:

Australian Legal Advisory Centre

COUNSEL FOR THE RESPONDENT:

Mr Combes

SOLICITORS FOR THE RESPONDENT:

Argent Law and Christopher William Legal

Orders

Pursuant to s 90RD of the Family Law Act, the Court declares that the parties were in a de facto relationship between 15 November 2010 and 13 July 2016.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lao & Wei has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC7788/2016

Ms Lao

Applicant

And

Mr Wei

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

By paragraph 2 of her Further Amended Initiating Application filed 26 December 2017, Ms Lao (“the wife”) seeks an order declaring that she and Mr Wei (“the husband”) “carried on a de facto relationship between 15 November 2010 and 13 July 2016.” For his part, the husband denies that the parties were in a de facto relationship during that time. By order of Johns J made 2 July 2018, that matter was ordered to be tried as a preliminary issue in the proceedings. On 3 October 2018 I concluded the trial of that preliminary matter, and reserved my judgment. This is that decision and the reasons for it.

THE FACTS

The husband was born in China in 1969, and hence is presently 49 years of age. He is a tradesman.
The wife was born in China in 1975, and hence is presently 43 years of age. She is also employed in a trade.
In either 1991 or 1992, when the husband was 22 or 23, and the wife 16 or 17, the parties met, and sometime later commenced a relationship. They are not agreed as to the nature of that relationship; the husband says it was but one of several casual relationships he was then concurrently engaged in, whereas the wife says that it was in the nature of a de facto relationship. This is the first of many disputes between the parties about their relationship, which I will need to determine, however it is unnecessary for me to resolve this immediate controversy, as nothing turns upon it.
It does not seem to be in dispute that the parties cohabited in the father’s parents’ home in China in 1994. Further, it does not appear to be contentious that in 1997 the wife commenced a business in a property owned by the father’s parents.
Likewise it is uncontroversial that in 1998, the husband married a Ms B in China, although the wife says that at the time she was unaware of that marriage, and that the parties’ de facto relationship nonetheless continued. Some corroboration of that is provided by the fact of the birth of the parties’ first child, a daughter, Ms X, in 1998, although the father says that he was unaware that the child was his until 2004.
Ms B was an Australian citizen, albeit ethnically Chinese. The husband’s marriage to her enabled him to live in Australia, which he did from 2000 onwards. In either September or October 2001 the husband returned to China on a visit, and again spent time with the wife. That led to the parties’ second child, Y, being born in 2002. Again the husband says he was unaware of that paternity for about another two years.
It does not seem controversial that during the time that the husband was married to Ms B in Australia, he nonetheless, from time to time, was sending money to the wife in China. He says that he only did so by way of a loan to a friend, and that it was not intended to provide support for his partner and children. However he says that changed in July 2004 when, on his version of events, he found out that he was the father of the parties’ two children. He says that precipitated a numbers of things. Firstly, in August 2004 the wife moved into his parents’ home again, and secondly, in September the husband and Ms B separated, because she found out about his relations with the wife in China behind her back.
In February 2005 the husband visited China from Australia, and says that this was the first occasion that he met Y.
In due course, in 2006, the parties married in China, and in April of that year they made a visa application for the wife and children to come to Australia. Ultimately the parties moved to Australia in March 2007, initially renting a home in the Melbourne suburb of Suburb C. Both obtained employment in their respective trades.
In 2008 the wife commenced to operate a small business from the parties’ Suburb C home.
It is not controversial that on 30 October 2008, the mother attended her general medical practitioner after being assaulted by the husband. The doctor’s notes were in evidence before me, which recorded multiple bruises, grazes and scratches.
Seemingly at around this time, the husband asserts that the parties’ relationship terminated, albeit they remained married. Certainly his evidence was emphatic that by November 2008, when the parties leased a property at D Street, Suburb E, their relationship had ceased, never to be re-invigorated.
Notwithstanding the fact that D Street was only a leased property, the parties commenced upon renovating it, with a view to making it suitable to both live in, and conduct a business from. I will need to discuss the parties’ living arrangements from time to time in D Street when considering the status of the relationship between them.
On 29 January 2009, again by reference to contemporaneous general medical practitioner notes made that day, the wife reported to her doctor that the night before she had been hit by her husband on her left side of the face with two blows, causing her to suffer a headache and pain to her right ear.
According to their application for divorce (later filed in August 2010) on 12 August 2009 the parties separated. No one before me contended that date was accurate. Indeed that much appears plain from the wife’s evidence, to the effect that on 28 August 2009 the parties had an argument in bed, and on 3 September 2009 the husband assaulted the wife in bed and in the kitchen of the D Street home. That assault resulted in the wife, for the first time, seeking the assistance of police, and on 9 September, an interim Intervention Order was made, naming the husband as the respondent. At a later hearing on 17 September, those orders were apparently continued.
Although up until then the wife had, it seems, been conducting her business at D Street, and the husband had been busily renovating the premises, it was not until 26 September 2009 that the parties’ business formally opened there. Although initially the parties conducted the business in partnership, in February 2010 they commenced to operate the business via a corporate entity, Wei & Lao Pty Ltd.
As I have already indicated, in August 2010 the parties filed for divorce. The husband contends that reflected the formal termination of a relationship which had concluded in late 2008, whereas the wife says that although the parties’ relationship was then in a poor state, notwithstanding their filing for divorce, and the divorce being granted on 14 October 2010, nonetheless the parties’ relationship continued unchanged. The husband plainly disagrees with that, and says that from the time of the divorce, he no longer slept in the home at D Street, but rather commenced sleeping in some sort of van which he had acquired and parked at the rear of the property.
On 5 December 2010, the father’s father came to live with the parties at D Street. He stayed for several months.
On 11 April 2011 a further Intervention Order was made against the husband. Amongst the conditions that were imposed upon him under it, was one which required him not be within 200 metres of D Street, except on the ground floor between 7:00am and 11:00pm. The husband says that he complied with that order (albeit sleeping in his van there); the wife says the parties continued nonetheless to live at D Street, including sharing a bedroom on the first floor.
On 14 October 2011 the wife attended her general medical practitioner, apparently suspicious that she had contracted a sexually transmitted infection from the husband. The doctor’s notes read “Husband r/t [returned] from overseas and after i/c [intercourse] noted offensive odour. prev[iously] had treated course of canestan,” (my interpolation).
The notes then record that the doctor undertook a pelvic examination of the wife, and requested pathology tests for chlamydia and gonorrhoea DNA.
I will discuss the significance of this document, and the wholly unsatisfactory way in which it came to prominence in the trial, in due course.
Over Christmas 2011, the parties and both their children drove from Melbourne to Queensland, stayed with the father’s sister there for one night, and then drove straight back to Melbourne. The reason why their trip was so rushed was because Christmas was the only time that the parties could close their business.
In October 2012 the parties jointly purchased 2 D Street at Suburb E, intending it to be an investment property, and to also house aspects of their business.
On 19 October 2012 there was an occasion when the father was seeking to book in a client with the wife at 10:00pm, but the wife wanted to close the business. An argument ensued, and again there was violence between the parties. On 22 October the wife obtained a further Intervention Order against the husband. Police notes in relation to that application record that the parties had been separated for five years. One of the orders made permitted the husband to only be present on the ground floor of D Street.
During 2012 Ms X indicated to the parties that she wished to go to a school that she perceived to be better than her present one, and the parties enrolled her in F School. However the distance between D Street and that school made commuting twice a day inconvenient. Accordingly, in September 2013, the parties rented a unit at G Street in Suburb H. Thereafter both of the children appear to have primarily lived there, including, on occasions, without either of the parents being present. The parents split their time between D Street and the Suburb H unit.
In September 2013 the parties acquired joint private health insurance, which also covered the children.
In October 2013, one of the parties’ staff members took a photo of them at the business. It shows the husband with his arms around the lower waist of the wife, who is leaning back against his body.
On 8 July 2014 the parties and their children attended a Yum Cha. On 30 November 2014 the parties jointly attended a restaurant. Photographs of the Yum Cha event and of the parties at the restaurant are in evidence, and show the husband with his arm around the wife, and kissing her on the cheek. I will discuss the significance of all of these photographs in due course.
Sometime towards the end of 2014 the parties, on advice, decided to split the asset owning aspects of their business from the incoming earning aspects. Accordingly they arranged for a company to be incorporated, which was given the name J Pty Ltd. Initially only the husband was a shareholder of that company, although later, when this came to the wife’s attention, she insisted on it be changed to an equal shareholding.
The husband’s evidence is that at about this time he had accumulated sufficient monies for a deposit to allow the purchase, albeit with significant borrowings, of a home in Melbourne. Although most of the house inspections that he thereafter undertook for suitable homes were by himself, some were jointly undertaken with the wife. Her evidence is that she believed that the parties were interested in purchasing a family home together.
On 21 February 2015 a house at K Street in Suburb H was purchased in the husband’s sole name. The financing of that is a little complex, in that although the husband contends he needed to borrow funds from his sister, it is apparent that a large proportion of that loan was repaid within a month.
On 30 April 2015, the parties jointly went to a restaurant with the children to celebrate the wife’s 40^th birthday.
In October 2015 the wife’s parents came to stay with the parties at K Street in Suburb H for a period of three months. Whilst they were there, on 2 December 2015, there was a combined joint family function for the husband’s family, the wife’s family, and the parties and their children. Also whilst the wife’s parents were in Australia, the parties jointly travelled with them and the children to Sydney on December 26.
On 22 March 2016, the wife lodged a caveat over K Street, seemingly because around that time, she, first became aware that the property had not been purchased in joint names.
On 13 July 2016 there was a violent episode between the husband and wife at K Street. The husband’s sister, who was also living at K Street, became involved, and all three parties gave statements to police. Unlike prior occasions when dealing with the police, on this occasion a Chinese interpreter was made available to the wife. In her signed statement given to police, she said:
I live with my two children, my sister-in-law [Ms Lao] and her son, my mother-in-law and ex-husband’s cousin.
On Wednesday 13^th of July 2016 at about 11:00pm my ex-husband .. came to my house. My ex-husband does not live with us but has a key to get into the house.
He came into my room, he was very angry, he started yelling at me…
The wife says that this violence occasioned the parties’ final separation, and since then she has had the benefit of, initially, an interim intervention order, and then a final order on 19 August 2016, which only expired this year.
In September 2016 the wife says she ceased to work at D Street, although the husband says it occurred earlier than that.
As at the time of the hearing before me, the wife operated a new business, whereas the husband continues to operate the parties’ former business. There is extant Supreme Court litigation between the parties in relation to alleged oppressive conduct by the husband towards the wife in the operation of the parties’ companies.
The husband presently has no relationship with either of the parties’ children. Apparently those relationships also terminated on 13 July 2016, seemingly, at least according to Ms X, because the father was unhappy that both of his children also gave statements to police, which he perceives as having been unfavourable to him.
Ms X gave evidence before me. I will discuss her evidence in due course.

RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES

Pursuant to s.90RD(1) of the Family Law Act (Cth) (“the Act”) this Court is empowered in proceedings brought under, amongst other provisions, s.90SM of the Act, to declare for the purposes of those proceedings that a de facto relationship existed, or never existed, between the parties.
The definition of “de facto” relationship for the purposes of the Act is contained in s.4AA. Sub-section (1) provides as follows:
4AA(a) 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 sub-section (6)); and
(c)having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has affect subject to sub-section (5).
Sub-section (5) provides as follows:
For the purposes of this Act:
(a)a de facto relationship can exist between two persons of different sexes and between two persons of the same sex; and
(b)a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.
Some elaboration of the circumstances relevant to working out if persons have a relationship as a couple is contained in sub-section (2). That provides as follows:
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 property;
(f)the degree of mutual commitment to a shared life;
(g)whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h)the care and support of children;
(i)the reputation and public aspects of the relationship.
Statutory guidance as to the inter-relationship of those circumstances, and the weight to be given to them, is provided in sub-sections (3) and (4) as follows:
(3) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4) A Court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the Court in the circumstances of the case.
Those provisions, or their state counterparts, have been the subject of considerable judicial discussion, principally in an attempt to more precisely analyse what will comprise “a couple”. Much of that analysis seems to have its genesis in the difficulty in satisfactorily distilling the essence of such a common, everyday concept. From those decisions the following propositions may be stated:
(a)Whether a de facto relationship exists or not is a question of fact, not a matter of discretion;[1]
(b)A de facto relationship does not need to be akin to a marriage[2] although the nature of the association involved in a marriage relationship may be instructive;[3]
(c)The parties determine the nature of their relationship and it may evolve and alter, even dramatically, over time;[4]
(d)Whilst a composite expression, it is comprised of two parts “a couple” and “living together” each of which must be established;[5]
(e) There need not be full time living together;[6]
(f)The relationship may be unhappy, but still subsisting;[7]
(g)Sexual or other exclusivity is not necessary;[8]
(h)The gist of the inquiry is the degree to which parties have merged their lives into one.[9] That connotes financial, emotional and physical interdependence.[10]
[1]Jonah v White [2011] FamCA 221 at [58] per Murphy J.
[2]Moby v Schulter (2010) FLC 93-447 at [163]-[164] per Mushin J.
[3]KQ v HAE [2007] 2Qd R 32 at [18] per McMurdo P, Keane & Holmes JA.
[4]Vaughan v Bele [2011] FamCA 436 at [11] per Cronin J.
[5]Taisha & Peng [2012] FamCA 385 at [12]-[21] per Cronin J.
[6]Moby v Schulter (supra) at [140].
[7]JRR v PH [2005] QSC 253 at [29] per Byrne J.
[8]ibid at [62]-[64].
[9]ibid at [60] and [67].
[10]Zau v Uongh [2013] FamCA 347 at [35] per Cronin J.

CREDIT OF WITNESSES
Overview

It was conceded by counsel for both of the parties that this case would largely be determined by the credibility of witnesses. That is because, given the large number of disputes between the parties as to the nature of their relationship, which cannot be explained simply by differing perceptions, it is not possible that both of them are being truthful in relation to such issues. It is therefore necessary to consider the credibility of each of the relevant parties and witnesses. However at the outset I should say that both the husband and the wife gave their evidence with the assistance of interpreters, which is a matter I need to take into account when assessing their evidence, especially in comparison to those witnesses who did not need an interpreter.

The husband

In many respects the husband was an unsatisfactory witness. He frequently would not answer questions, but rather sought to deflect the cross-examiner’s inquiry, which was not helped by counsel for the wife not pressing for a responsive answer. On other occasions the husband was belligerent.
Further, both during cross-examination and on other occasions, the husband often had a facial expression which might best be described as something in the nature of a wry smile or smirk.
Some of the contemporaneous documentary evidence casts doubt upon the truthfulness of the husband’s evidence. There are two particular examples of that. The first relates to his claim that the parties have not engaged in sexual relations since 2008. I have already referred to the notes of the wife’s consultation with her general medical practitioner on 14 October 2011, which plainly record a report of sexual intercourse between the wife and the husband in 2011. If that report was accurate, then it all but completely sinks the husband’s credibility, at least as regards his emphatic denial that the parties continued to have sexual relations.
However, as I have observed, the way in which the document came to light was far from satisfactory. It only came into evidence on the last day of the trial, when counsel for the wife read into evidence parts of an old affidavit of hers, which included annexure YPL13. That annexure comprised an intervention order, however in addition, although no reference was made to it in the substantive paragraph which annexed the intervention order, there was also the consultation note. I raised with counsel for the wife the existence of the document, which seemed something of a surprise to him. But for the court raising it with counsel, it would not have been mentioned in the trial at all.
The affidavit of the wife which annexed the note otherwise made no reference to it. Given its lack of prominence in the trial, the husband was not cross-examined by reference to it, nor was the wife. That said, no application to re-open was made, nor was there an application for further cross-examination of any of the parties.
The document is not altogether unassailable. For instance, there is no evidence of the husband having travelled overseas in 2011. That is not to say there is evidence he did not, but it was simply not an issue raised. Further, it is conceivable that the wife’s report to her general medical practitioner that it was her husband that had engaged in sexual relations with her, may have been a cover for having engaged in sexual relations with someone else, however apart from the husband’s assertion that the wife maintained an internet boyfriend in China, there is no evidence of her having liaisons with people other than the husband. Indeed, given her commitments to the parties’ business of at least 12 hours a day, it seems difficult to see quite how she could have managed to juggle such a relationship. Moreover, if it be the case that she was separated from the husband in 2011, consequent upon the divorce in 2009, the need for any subterfuge when dealing with her general medical practitioner is unclear.
The second class of document which creates difficulty for the husband’s credibility, are the photographs taken of the parties after their divorce. Two in particular are significant. The first is the photograph taken by a staff member at the parties’ business on 20 October 2013. It is almost inconceivable that either of the photographs in exhibit YPL4 are of people who are only business partners. The photograph at page 30 of that affidavit, shows the wife effectively seated on the husband’s groin, and he has his arms around her lower waist. At page 31 the husband’s right arm is close to the wife’s right breast. Both of them seem to be intimate, candid, photographs.
To like effect are the photographs of the parties out at dinner in YPL5, taken as late as 30 April 2015. Particularly the photographs at pages 34 and 35 suggest, to my mind, that the parties’ interaction with each other was far beyond business partners only. True it is that counsel for the husband conceded that the husband’s own evidence was that he and the wife attempted to shield their children from the divorce so as to maintain the semblance of ordinary family life, and hence these photographs may have been part of the deception, but to my mind, they go far beyond a façade of civility. They appear to demonstrate true warmth and genuine intimacy.
There are some other photographs which are problematic for the husband as well, but not as problematic as those. For instance there are photographs of him with Ms X in 2001 (YPL19) which to my mind are strongly suggestive of him engaging with the child as her father at that time. True it is that they might be snapshots of someone enjoying play with a friend’s child, but that is not the impression I take from them.
Ultimately a combination of the husband’s poor performance in the witness box, together with the conflict between his evidence and the contemporaneous documents, causes me to greatly doubt the veracity of his evidence in material respects.
In so concluding, I do not overlook the fact that there appears to have been be some change in his dealings with the wife from 2004 onwards, but it may well be, if the parties had a plan to achieve migration to Australia using an intermediate marriage, that it was necessary to progress that plan at that time. Therefore that matter does not cause me to reach a different conclusion in relation to the husband’s credibility.

The wife

The wife performed in a far more credible way in the witness box than did the husband. She was responsive to questions, and did not appear to encounter any particular difficulty in maintaining the central thesis of her case. However there are some troubling contemporaneous statements by her which do cast some doubt upon her honesty. The most striking of those is her statement to police of 14 July 2016, which, unlike her earlier involvement with police, was made with the assistance of an interpreter. That said, it has to be conceded that the statement was signed by the wife at around 4:00am in the morning, after a violent attack by the husband upon her the night before, however that explanation only goes so far. She would now have me believe that she and the husband were then still an extant couple living together, however she expressly told police that the husband “does not live with us.” Moreover the constant reference to him as her ex-husband, and her reference to “my” bathroom and the like, all are suggestive of the parties then being separated.
Her earlier statements to police are less clearly able to be directly attributed to her, as they only seem to find expression in the form of statements of facts for the purposes of a police officer making submissions in the course of an application for intervention orders. However plainly, on at least one occasion, the wife has been recorded as stating that she and the husband have been separated for five years, and although not then interviewed with the benefit of an interpreter, nonetheless plainly that information must have either come from her, or been the result of a serious misunderstanding of what she had said.
Of course there is some inherent implausibility in the wife’s story in any event. For instance, she would have me believe that she did not think that the 2010 divorce was going to proceed, and yet plainly it did, but she took no step to undo that once it came to her attention. Moreover, the suggestion that the divorce was simply some form of temporary aberration in their relationship seems highly unusual.
Whilst I do not have the same level of concern in relation to the wife’s veracity that I do in relation to the husband’s, I nonetheless do have some doubt. I will be particularly vigilant in controversial areas to assess its alignment with contemporary and independent documentation or other records, where they exist.

Ms X

An affidavit of the parties’ daughter, Ms X, sworn 14 September 2017, was ultimately, and without prior warning, relied upon by the wife. Ms X is presently 19 years of age, and has been estranged from the husband since July 2016. Plainly she is more aligned with the wife in consequence of that estrangement, although at the time of her giving evidence, she was living in Sydney where she was studying at university.
Unlike either of both of her parents, Ms X gave evidence in English without the need for an interpreter. I am cautious therefore in making a direct comparison between her evidence and that of either of her parents, given the fact that she was able to converse directly without the need for the assistance of an intermediary.
However even taking that into account, I formed the view that Ms X was a most impressive witness. Her demeanour was, in my view, consistent with someone who is desirous of giving truthful evidence. She was prepared to make reasonable concessions including, on one occasion, that a matter was not within her memory, when, had she been desirous of assisting her mother at any cost, it would have been more advantageous for her to have fabricated favourable evidence.
Moreover it appeared to me that she was genuinely regretful of the lack of any present relationship with her father, and maintained a hope that one day her relationship with him would be restored.
I do not overlook the husband’s challenge to her, to the effect that she had posted some highly defamatory comments in relation to him on social media, and it was that which had caused him to subsequently seek an Intervention Order against her, but even if that is true, it does little to undermine my otherwise strong impression of her.
Unlike both of her parents, I am generally prepared to act upon Ms X’s evidence, and would only not do so if it were contradicted by contemporaneous, independent material.

Other witnesses

On the wife’s side, she called a number of witnesses as to the parties’ public presentation, none of whom were required for cross-examination. There is no reason to doubt their credibility. For his part the husband relied upon limited material from his sister and his mother. Little of that material did anything to damage the wife’s case, but nonetheless some attempt at attacking their credibility was made. There is no reason to make any observation in relation to those two witnesses’ credibility, as their evidence is of little moment in this case.

Conclusion

I have grave doubts in relation to the husband’s veracity, and some doubts as to the wife’s veracity. In the case of both of those witnesses, I will be keen to see if their evidence is supported by contemporaneous, independent documentation, or is inherently plausible. On the other hand, in relation to their daughter, I will have little such hesitation, and will accept her evidence unless it is contrary to independent, contemporaneous material.

RELEVANT CIRCUMSTANCES
The duration of the relationship

The parties have been in some species of a relationship now since either 1991 or 1992. Whilst the husband does not appear to concede that they were ever, whether before or after their marriage, in a de facto relationship, it is plain that the parties were married between mid-1998 and October 2010. Since then the parties have continued some species of relationship; the husband contends it is one only of business partners, whereas the wife says that notwithstanding the divorce, their relationship continued unaltered.

The nature and extent of their common residence

The parties resided together for some period of time in China prior to their marriage. They resided together for all of their married years, including after they moved to Australia in March 2007. It seems only after the divorce that the husband claims to have slept in a van at the rear of D Street.
His claim is directly contrary to Ms X’s evidence. She says that, after the business commenced to operate at D Street, she shared one bedroom with her brother, whilst her parents used the other bedroom. She then says that, after the husband had renovated the three bedrooms upstairs, she and her brother each got their own room. She specifically says that “at night around 9:00pm, the shop would close and my mother and father would come to the flat above to be with us and then go to bed.”
Her affidavit continued:
21. My parents slept in the one room while my brother and I slept in the other. There was not a single day of which I’m aware when my parents did not sleep together when we lived in [Suburb E]…
True it is that matters became somewhat muddied after the parties rented the G Street unit, and as Ms X says “our lifestyle was very complicated,” but nonetheless it seems plain that the only substantial change was the move of the children to G Street, rather than any cataclysmic change in the sleeping arrangements of the parties. Particularly I am mindful that at paragraph 35 of her affidavit, Ms X said:
35. I am in no doubt that my mother and my father were in a relationship until the incident of July 2016, though they often had arguments and fights. They almost always slept together whenever I was in the house with them and my father always referred to my mother as his “wife” whenever he introduced her or mentioned her to others.
Whilst I accept that it is possible that, if separated, there may have been, consistent with cultural expectations, some desire of the parties to shield the children from their divorce, it seems plain that in fact the children, or at least Ms X, were firmly of the view that their parents remained in an intact relationship.
Notwithstanding the possibility that the children were being deceived, and notwithstanding the possibility that Ms X is antagonistic towards her father by virtue of being estranged from him since July 2016, nonetheless I accept her evidence. It follows that I reject the husband’s evidence that he did not share a bedroom with the wife after 2009.
I should deal with the terms of the intervention order which required the husband to stay beyond 200 metres away from D Street, except on the ground floor between 7:00am and 11:00pm.
In this respect I accept the wife’s evidence that she did not insist upon compliance with that condition, as I accept Ms X’s evidence that, whatever the wife’s motivation might have been for not insisting upon compliance with that order, in fact the husband still lived on the top floor of the house.
True it is that the reported statements of the wife to police in the course of intervention order applications (when she was living at D Street) to the effect that the parties had been separated for some period of time, are inconsistent with her case, but not only is there no specific statement from her to that effect, but further, there is the problem that her interactions with police in connection with those intervention orders were without the assistance of an interpreter.
There is then the final issue of the parties’ living arrangements after the purchase of K Street in February 2015. With that purchase, the G Street unit was no longer required. As to this, Ms X says:
In the middle of (2015) our family set up our new home at [K Street]. My parents continued to live the same pattern, as we had lived in [G Street]. However, as we had more room, my mother and father could spend more time with us in the [K Street] property than they could at [G Street]. They stayed in a master bedroom, my brother and I stayed in the bedrooms on the second floor. We were very happy, although I became depressed when I needed parental support to cope with study tasks and it was not there.
I accept that evidence.
Moreover, there is the continued interaction of both the maternal and paternal families at this time. Thus, for instance, the father’s mother was also living in K Street, as was his sister. All of this suggests, to my mind, even accepting that there may be some cultural nuances involved, that the parties were then continuing to maintain if not one, then at least two common residences.
Again I do not overlook the wife’s statement to police in July 2016 that the husband did not live with them at K Street, but only had a key to get into the house. It is a very problematic statement for the wife’s case, but to the extent that it is in conflict with Ms X’s evidence, I reject it.

Whether a sexual relationship exists

The wife asserts that notwithstanding the parties’ divorce, a sexual relationship continued up until July 2016. The husband denies this, and says that the parties did not even share a bedroom, much less sexual relations, after the divorce.
Whilst acknowledging that the parties did split their time between D Street and, initially, G Street, and then later K Street, I accept that nonetheless, when they were in the same residence at the same time, they shared a bedroom. Further, it seems to me as though the mother’s report to her general medical practitioner on 14 October 2011 of intercourse with the husband, is a critical piece of material. The only possible explanation for that report consistent with the husband’s case, is that she was concealing from her general medical practitioner the identity of a sexual partner other than the husband. However that was not raised in the evidence, was not put to her in cross-examination, and although the evidence only came to prominence during the course of submissions, did not lead to any application on the part of the husband to further cross-examine the wife.
Ultimately I accept the accuracy and truthfulness of the 14 October 2011 progress notes, and find that the parties did indeed continue to have sexual relations after 2009.
There is an abundance of other evidence which would support that, including the photographs I have already referred to. To my mind, they reflect a relationship well beyond one of business partners only, and are far more consistent with the parties continuing to enjoy intimate relations, rather than simply being financially interconnected.
I find that the parties continued to have a sexual relationship until separation in July 2016.

The degree of financial dependence or interdependence and any arrangement for financial support between them

Until 2016 the parties continued to operate a joint business. True it is that they did so via corporate entities, but I am satisfied that both of the parties had effectively unrestrained access to the proceeds of the business, albeit that the husband largely undertook the bookkeeper role.
The wife says that, upon a review of the accounts, it appears as though the husband was, under the guise of consultant’s fees, taking disproportionately greater amounts of the profits of the business than she was, but plainly both of them continued to operate the business using their respective strengths to generate income and manage it.
It does seem as though post 2009 the parties maintained separate bank accounts, but the fact that they were operating a business jointly together, with joint access to the proceeds of that business, is not significantly detracted from by their separate bank accounts.
I am well satisfied that these parties remained financially engaged and interdependent with each other, up until July 2016.

Ownership, use and acquisition of property

The parties remained joint lessees of D Street until July 2016, and indeed likely still are. The parties are, albeit via a corporate entity, joint owners of 281 D Street. Whilst the husband is the sole registered proprietor of K Street, I am far from satisfied that necessarily reflects the equitable position. Moreover, I am mindful that the wife lodged a caveat as early as 22 March 2016, which would suggest that her contemporaneous response and reaction to discovering that K Street was in the husband’s sole name, was consistent with a belief that the property was in fact jointly owned. Further, the wife was plainly one of the occupants of K Street from the time of its purchase, and although the husband says that he was charging her $500.00 a week rent to stay there, if that was in fact the case, it was not to the wife’s knowledge, and occurred only by the husband creating invoices or other accounts within the parties’ business to that effect. Moreover, plainly that property was seen by Ms X as the family home.

The degree of mutual commitment to a shared life

I am well satisfied that, up until July 2016, the parties had for many years engaged in a shared life. Not only did they jointly operate their business, and maintained joint assets in the form of real property or leases, but they socialised together, holidayed together, and engaged with each other’s families. They co-parented both of their children together.
True it is that their relationship was punctuated by the husband’s family violence towards the wife. However, ironically, that family violence tends to suggest that the relationship was one of far greater complexity than merely business partners, as the husband would have me believe. Indeed it is not unfair to say that the family violence is far more consistent with them being in a shared life as domestic partners, than otherwise.
Some weight should be given to the several witnesses called by the wife as to their perception of the parties’ relationship, including the owner of a Chinese restaurant that the parties and their children frequented, a regular customer of the parties’ business, and a friend who assisted them obtaining the lease of the property at D Street. The fact that they were not cross-examined enables me to be confident as to the accuracy of their perceptions, however, of course, they still remain perceptions only. Nonetheless they do demonstrate that, at least according to those persons, the parties did appear to demonstrate a commitment to a shared life.

Whether the relationship is or was registered

The parties were married, but divorced in 2009. Since then there is no suggestion that their relationship was registered as a de facto relationship.

The care and support of children

Both parties appear to have continued to jointly share the responsibilities of parenting both their children, accepting that these children, of necessity, were given a greater degree of independence than their peers, because of the long hours which both parties worked in their business. However I am confident that both of them maintained a strong desire to jointly parent the children.

The reputation and public aspects of the relationship

I have already traversed the evidence called by the wife in support of the public aspects of their relationship. However it seems to me that the critical witness here is Ms X, who was able to see both the public and the private aspects of the parties’ relationship. She is emphatic that in both aspects, the parties’ relationship remained intact until 2016.
I accept that the parties socialised together, engaged with each other’s families together, and celebrated mutual events, for instance the wife’s 40^th birthday, together. They publicly presented as an intact couple.

WERE THE PARTIES A COUPLE LIVING TOGETHER ON A GENUINE DOMESTIC BASIS

I am well satisfied that the parties continued to live together as a couple on a genuine domestic basis until July 2016. Particularly, in accordance with my findings earlier in this judgment:
·The parties remained in a sexual relationship until July 2016, notwithstanding their divorce in 2009;
·The parties remained financially intertwined, both by virtue of co-ownership of a business, and D Street. I am satisfied that there is a strong argument that they also had – and continue to have – some species of co-ownership of K Street;
·The parties continued to have a shared life, including maintaining a common addresses, and socialising together. Importantly there is no suggestion that the parties had an individual life outside of their shared one; for instance, although the husband says the wife had an internet boyfriend, (which I do not accept) it is not suggested that either re-partnered or that they adopted and followed interests outside of their shared life;
·Both parties remained committed to the joint care of their children;
·The relationship was viewed by a range of persons as one of husband and wife. Whilst I accept that it is possible that there may be some cultural issues associated with not publicising separation, my reading of the evidence is that their interaction went far beyond merely concealing an uncomfortable truth from those persons.
There are very unusual aspects to this case, including the husband’s marriage to Ms B in 1998, the conception of Y during that marriage, and the fact that the parties thereafter married but later divorced, albeit continuing with their lives seemingly without any real variation. Nonetheless the evidence, to my mind, plainly points to the parties having been in a de facto relationship, which only concluded with the husband’s violent attack on the wife in July 2016.
The specific order which the wife seeks in her Further Amended Initiating Application is a finding that the parties’ de facto relationship existed between 15 November 2010 and 13 July 2016. The evidence did not identify any significance of the date of 15 November 2010. It seems to me that the more appropriate date is likely to be the date of the divorce, being 14 October 2010, but certainly I am satisfied that the relationship existed between the dates contended for by the wife.

CONCLUSION

For these reasons there will an order as set out at the commencement of this judgment.

I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 6 November 2018.

Associate:

Date: 6 November 2018