MARTENS & BOCCA

[2016] FamCA 1044

FAMILY COURT OF AUSTRALIA

MARTENS & BOCCA [2016] FamCA 1044

FAMILY LAW – DE FACTO PROPERTY – Application for a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) that a de facto relationship existed – Assertion by applicant that parties maintained a de facto relationship for a period of 13 years – Respondent denies this assertion and claims that the parties were in friendship/relationship which should not be regarded as a relationship within the meaning of the Family Law Act 1975 (Cth) – Declaration made pursuant to s 90DR of the Family Law 1975 (Cth) that the parties were in a de facto relationship for a period of approximately 13 years

Commonwealth Powers (De Facto Relationships Act) 2003 (NSW)

Family Law Act 1975 (Cth) ss 4AA, 31(1)(a)(aa), 90RD, 90SB

Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) s 4(1)

Norton v Locke [2013] FamCAFC 202

Lynam v Director General of Social Security (1983) 52 ALR 128; 9 Fam LR 305; (1984) FLC 91-577

APPLICANT: Mr Martens

RESPONDENT: Mr Bocca

FILE NUMBER: SYC 6963 of 2015

DATE DELIVERED: 7 December 2016

PLACE DELIVERED: Hobart

PLACE HEARD: Sydney

JUDGMENT OF: Benjamin J

HEARING DATE: 1, 2, 21 & 22 September 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Kennedy

SOLICITOR FOR THE APPLICANT: Tiyce Partners Lawyers

COUNSEL FOR THE RESPONDENT: Ms Murphy

SOLICITOR FOR THE RESPONDENT: Eleanor Murphy & Company

Orders

1. Pursuant to s 90RD of Family Law Act 1975 (Cth) it is declared that a de facto relationship existed between Mr Martens and Mr Bocca from November 2000 until 26 October 2013.

2. These proceedings and component applications are referred to the list co-ordinator to allocate a date for a Conciliation Conference and to make directions for the filing of further material, if necessary.

3. The costs of both parties be reserved in relation to the application to this jurisdictional proceeding.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.

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 Martens & Bocca & 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 HOBART

FILE NUMBER: SYC 6963 of 2015

Mr Martens

Applicant

And

Mr Bocca

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. Mr Martens (‘the applicant’) and Mr Bocca (‘the respondent’) began a friendship/relationship in November 2000, which continued until October 2013. 

2. The applicant contends that their relationship was a de facto relationship within the meaning of the Family Law Act 1975 (Cth) (‘the Act’) and as such he is entitled to seek adjustment of property pursuant to the Act. To that end he seeks a declaration pursuant to s 90RD of the Act that a de facto relationship existed between these parties from November 2000 until October 2013.

3. The respondent claims that the friendship/relationship could not be regarded as a de facto relationship under the Act and consequently the proceedings should be dismissed.

4. The two questions for this Court are:-

   a) What is a de facto relationship within the meaning of the Act, and

   b)Having regard to the relevant agreed facts and determined facts, in all the relevant circumstances of their relationship, was it one where they were living together on a genuine domestic basis as a de facto couple within the meaning of the Act which had broken down.

BACKGROUND

1. The applicant is aged 46, the respondent is aged 58.  The parties met in 2000. The parties have a complex and at times a disputed factual background.

2. There is no issue that the parties are and were not married to each other and that they are not related by family.

3. The applicant asserts that after the parties met in 2000 they began a routine of him staying at the respondent’s home overnight every weekend and at least once or twice midweek.  He says this routine continued for the next 13 years.  In addition says that the parties saw one another three or four times a week, but not overnight.  He says that they undertook all of the domestic chores together at the respondent’s apartment. 

4. The respondent asserts that after their meeting in 2001 they became friends, and this friendship continued for a period of about 13 years.  However, he denies that they ever lived together in a de facto relationship. 

5. The applicant commenced proceedings in the Family Court on the 23 October 2016 seeking property orders based upon the asserted thirteen year de facto relationship. 

6. The respondent filed a response to an initiating application and an application in a case on the 27 November 2015 raising the question of jurisdiction and seeking a declaration pursuant to s 90RD(1) of the Act that a de facto relationship never existed between the parties. He also filed an application in a case at the same time seeking that same order.

7. The applicant filed a response to the respondent’s Application in a case on the 3 March 2016 seeking a declaration that a de facto relationship existed between the parties in the same terms as his application.

8. These proceedings were heard September 2016 and each of the parties was represented by counsel.

9. Any statement of fact contained in these reasons should be treated as a finding of fact unless the contrary is clear from the context.

THE LAW

1. This Court has both the power and obligation to determine jurisdiction in terms of whether there is a relationship within the meaning of the Act. The Full Court in Norton v Locke [2013] FamCAFC 202 said in relation to the question of jurisdiction under Part VIIIAB of the Act:-

   43.This court, does, however, plainly have jurisdiction to determine if it has jurisdiction – in this case the jurisdiction to embark upon proceedings which seek to establish or deny the relevant jurisdictional facts. This court has the power to make orders that are necessary for the determination of issues relevant to that jurisdiction. Those powers include the power to control its own process; “[t]he power of each court over its own process is unlimited; it is a power incident to all courts, inferior as well as superior; were it not so, the court would be obliged to sit still and see its own process abused for the purpose of the injustice…” (Cocker v Tempest (1841) 151 ER 864 at 865 by Alderson B, cited by Gaudron J in Jackson v Sterling Industries Pty Ltd (1987) 162 CLR 612, at 638). More specifically, this court has the power to, as Menzies J put it in Ex parte Bevan, “protect […] its function as a court”.

   44.Within that jurisdiction and within the ambit of powers just described, this court has the power to make what this court has described as “holding orders” pending the determination of the jurisdictional facts necessary to found jurisdiction. Orders of that type can include, specifically, orders for interlocutory injunctions (see, for example, Ex parte Green; Re LSH; and, Jackson v Sterling Industries Pty Ltd at 617, per Wilson and Dawson JJ).  In both the High Court and this court orders of that type have been expressed as orders “preserving the status quo” pending resolution of the question of jurisdiction.  

2. The Family Law Amendment (De Facto Financial Matters & Other Measures) Act 2008 introduced the concept of “de facto financial cause” to the legislation. Sections 4(1) of the Act, relevantly defines a de facto financial cause to mean:-

   (a)proceedings between the parties to a de facto relationship with respect to the maintenance of one of them after the breakdown of their de facto relationship; or ….

   (b)proceedings between the parties to a de facto relationship with respect to the distribution, after the breakdown of the de facto relationship, of the property of the parties or either of them; or …

3. Section 4AA (1) of the Act provides:-

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

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

   (b)      the persons are not related by family (see subsection (6)); and

   (c)having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

   Paragraph (c) has effect subject to subsection (5).

   Working out if persons have a relationship as a couple

   (2)      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.

   (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.

   (5)      For the purposes of this Act:

   (a)a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and

   (b)a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.

4. Once there is found to be a de facto relationship with the meaning provided under the Act this Court may make an order or a declaration in relation to a de facto relationship only if the Court is satisfied that one of the four criteria set out in that section has been met, s 90SB provides:-

   A court may make an order under s 90SE, s 90SG, or s 90SM, or a declaration under s 90SL, in relation to a de facto relationship only if the court is satisfied:-

   (a)that the period, or the total of the periods, of the de facto relationship is at least 2 years; or

   (b)      that there is a child of the de facto relationship; or

   (c)      that:

   (i)the party to the de facto relationship who applies for the order or declaration made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c); and

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

   (d)that the relationship is or was registered under a prescribed law of a State or Territory.

   Note: For child of a de facto relationship, see section 90RB.

5. The jurisdiction to hear de facto property proceedings in the Family Court is provided by s 31(1)(a)(aa) of the Act which relevantly provides:-

   Original jurisdiction of Family Court

   s 31(1) Jurisdiction is conferred on the Family Court with respect to:

   (a)matters arising under this Act or under the repealed Act in respect of which matrimonial causes are instituted or continued under this Act; and

   (aa)matters arising under this Act in respect of which de facto financial causes are instituted under this Act; and …

6. Section 39A of the Act provides jurisdiction for de facto financial proceedings to be instituted in the Family Court.

7. Section 4 of the Act implements the requirement that a de facto relationship must have existed between the parties and there has been a breakdown of that de facto relationship to enable the jurisdiction of the Court to be enlivened. These requirements are repeated in s 90SM(1) of the Act.

8. Section 4AA(a) of the Act also sets out the circumstances which give rise to a de facto relationship. If there is no de facto relationship then the Act will not apply as the Court has no jurisdiction.

9. The reason for these provisions is that the power to deal with maintenance and property in respect of parties to a de facto relationship was created as a Commonwealth power by way of limited referral of these State powers to the Commonwealth by some, but not all, State Governments.

10. In this case the parties resided in New South Wales and its State Government, by reason of the Commonwealth Powers (De Facto Relationships Act) 2003 (NSW), referred powers to the Parliament of Commonwealth of Australia in respect of financial matters relating to de facto parties arising out of the breakdown (other than by the reason of death) of de facto relationships. That Act was assented to on 23 October 2003 and came into effect on 22 September 2008. That Act sets out the purpose and the reference in which the two fundamental requirements of the fact of a de facto relationship and the breakdown, namely s 1 (Purpose) and s 4 (References):-

    Purpose

    1.The purpose of this Act is to refer certain financial matters arising out of the breakdown of de facto relationships to the Parliament of the Commonwealth for the purposes of section 51(xxxvii) of the Constitution of the Commonwealth

    References

    4(1)The following matters, to the extent to which they are not otherwise included in the legislative powers of the Parliament of the Commonwealth, are referred to the Parliament of the Commonwealth for a period commencing on the day on which this Act commences and ending on the day fixed, pursuant to section 5, as the day on which the references under this Act are to terminate, but no longer.

    (a)financial matters relating to de facto partners arising out of the breakdown (other than by reason of death) of de facto relationships between persons of different sexes,

    (b)financial matters relating to de facto partners arising out of the breakdown (other than by reason of death) of de facto relationships between persons of the same sex.

11. The Commonwealth accepted the referral of power by the passing of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act2008 (Cth).

12. In this proceeding I am satisfied that the applicant and the respondent are not legally married to each other, and that they are not related by family.  The substantive question is whether, having regard to all of the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

13. The onus of proof is that of the applicant to establish, on the balance of probabilities, that a de facto relationship existed between he and the respondent. It is a matter for the Court to attach the weight it considers appropriate given the findings of fact.  No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have or do not have a de facto relationship.  As such this is a discretionary determination within the statutory structure outlined above.

14. The applicant is called the applicant as he brought the application in the substantive proceedings.  The application before me is one brought by the respondent to dismiss the proceedings and where the applicant seeks a declaration in response.  I have treated the applicant as being the applicant for the declaration and the respondent as being opposed to such declaration.

15. Each of the parties submitted case law to me and I have had regard to that case law. 

THE EVIDENCE

1. Counsel for each of the parties prepared case outline documents, which were tendered in evidence.  The tender was not as to the truth of the material contained in them but of the cases that they presented.[1] 

   [1] Exhibits A1 and R1.

2. The applicant produced evidence of vast quantities of text messages between the parties.  Annexed to his affidavit or contained as part of a tender bundle[2] were copies of those electronic messages.

   [2] Exhibits A2 and A3.

3. The respondent sought to have an expert examine and report on some of that material and whether there was any evidence of interference with those messages. Eventually it became an agreed fact there were some twenty six thousand and nine SMS messages plus another five thousand five hundred and forty one which had been deleted.

The applicant

1. The applicant gave evidence in terms of his affidavit filed 2 March 2016.  Subject to a significant number of objections that affidavit was read into evidence, subject to weight.

2. In his affidavit the applicant described the relationship between him and the respondent.  He described the interaction with the families and their lives together, albeit that they each maintained separate homes throughout the relationship.  In about 2012 the applicant sold his Suburb B apartment and purchased a Suburb C apartment.

3. He gave evidence about the interaction with the respondent’s family, including being referred to as his ‘partner’, ‘husband’, and ‘better half’.  He went to many family occasions.  However, they did not share Christmas Day together but shared Christmas festivities together.

4. The applicant’s evidence was that they discussed, at some point, marrying which had continued.  They developed a plan for their future in terms of retirement and discussed raising children together.

5. The applicant said that in late 2006, after their trip to Europe, they became more serious and further committed each to the other.

6. In terms of their plan, they were planning to purchase a property in Sydney and a property in D Town.  They entered into various negotiations over the following years although in the end the respondent bought a property in his sole name.

7. Significantly on two occasions the respondent prepared a will.  In the first will he appointed the applicant a co-executer and made him a joint beneficiary; in second will he made him his sole beneficiary. 

8. The applicant gave cogent evidence of discussions between himself and the respondent about the respondent’s mother changing her will.  There is no objective evidence that this ever occurred.  However, I find that a conversation along those lines is more likely than not to have occurred as between the parties.

9. Apparently the respondent’s mother struggled when she learnt that the respondent was not heterosexual.  The evidence of the applicant, which I accept, was that the respondent and his mother did not talk for a year, but that the relationship repaired itself and the applicant was accepted as the partner of the respondent.  The applicant’s evidence was that his relationship with the respondent’s parents was strong.

10. I am similarly satisfied that he had a good relationship with the respondent’s sister, albeit that came to an end at the end of the relationship and that he was accepted by her children.

11. In his affidavit he set out the discussions in relation to the various properties at which they looked for the respondent to purchase.  The eventual purchase of the D Town property was entirely funded by the respondent although, I am satisfied that the applicant did some work on the property following the settlement.

12. There was evidence about the superannuation fund set up by the respondent.  As I have said elsewhere it has not been established that the applicant put in $10,000, on balance that assertion was not proved.  However, that determination was not such as to impeach the overall evidence of the applicant.  I accept the superannuation fund was set up by the respondent with his money and that the applicant was one of the trustees of that fund.

13. In paragraphs 173 to 185[3] the applicant’s trial affidavit sets out the circumstances of the relationship breakup.  He was challenged in relation to this and I am satisfied that his version is the preferable version.  I do this on the basis of the answers to the questions provided by the applicant combined with the evidence of Mr E and Mr F and the material contained in the various text messages produced. The evidence of the respondent at some levels, confirmed this version.[4]

    [3] Filed the 2 March 2016.

    [4] Affidavit of respondent filed/dated 25 August 2016, paragraph 8.20

1. There was some confusion as to whether the date of the relationship breakup was 25 or 26 October 2013.  I accept that it occurred on one or other of those dates in October 2013, more likely 26 October 2013. 

2. The applicant was cross-examined by counsel for the respondent over a considerable period of time.  There was some cross-examination in relation to sexualised communications between the applicant and the respondent, including relating to a person named Mr G.  From the material to which I was referred it is clear that the respondent, the applicant and at times the respondent’s sister engaged in very frank and sexualised communications. I accept that this was done often by way of joke and by way of bravado.

3. What do I then make of the applicant’s evidence?  The applicant could only be described as a ‘barrister’s nightmare’.  He was clearly anxious in the witness box and expansive in his answers.  At times he would ask himself questions and give answers.

4. I did not detect this was done as a tactic or forensic exercise.  I assessed that it was simply that the applicant could not answer a question with a ‘yes’ or ‘no’.  He seemed to need to provide an explanation and a sense of his feelings and then try to present his own case.  Consequently, he was at times non-responsive and at other times his answers were ‘street conversationalist’ such as he would say ‘really’ in a sarcastic way.

5. However, I am satisfied that he endeavoured to tell the truth from his own subjective point of view.  I will be cautious with his evidence, but his evidence was not seriously impeached.

6. The applicant was an impressive record keeper and much of his evidence was supported by objective material, including text messages, emails and other documents.   

The respondent

1. The respondent gave evidence in accordance with his affidavits filed 10 December 2015, 29 April 2016 and 25 August 2016.  This material was read into evidence, subject to weight.

2. The respondent said that his written evidence was ‘considered’ and that all of his evidence was accurate and that he did not exaggerate.  He said he left nothing of significance out of his affidavit. 

3. For the first part of his relationship from 2001 to about 2006/2007 the respondent asserted that he and the applicant were boyfriends however, after that time he was just a friend.  In his December 2015 affidavit he described his relationship with the applicant by saying ‘we were friends’.  By this he said that it was a monogamous relationship with potential to share life and that they may move in with each other.  He did not agree with the evidence of Mr F and Mr E as to the categorisation of the ‘break-up of the relationship’.

4. The respondent endeavoured to minimise the breakdown of the relationship/friendship in about October 2013 and asserted that there was not a breakup. For the reasons set out later I am satisfied that there was a breakup of a relationship at that time.

5. In his evidence the respondent said that he had consulted with a psychologist.  He said that on one occasion in late 2013 the applicant went with him to an appointment, but that was as a friend or family member to ‘share the experience’ with the respondent.  I do not believe that evidence.  I am satisfied that they went along given the nature of their close and intimate relationship, particularly given the nature of some of their text exchanges at the time.

6. The respondent’s evidence in relation to the involvement with the applicant in terms of the superannuation fund was dismissive and minimising.  His evidence in that regard was at times inconsistent with the objective documentary evidence.  I am satisfied that the evidence of the respondent was fashioned to minimise the involvement of the applicant and to minimise the nature of their relationship.

7. In a number of ways the documentary evidence undermined the written testimony of the respondent.  In his affidavit filed 20 April 2016 the respondent asserted:-[5]

   …I deny the applicant had anything to do with the purchase of my house in [D Town] and I say that I purchased it in 2013 and not 2012.

   [5] At paragraph 99.

8. There were numerous examples of them engaging together and alone in the search for properties in the D Town area.  Exhibit A2, volume 1, page 49 was an authority to the agent authorising him to negotiate and deal with the applicant, yet at times it was like drawing teeth for the respondent to acknowledge any involvement by the applicant.

9. The agent wrote to [the respondent] and [the applicant] (page 51).  On 24 December 2012 there were details on a building report, perhaps for another property.  There were other issues at pages 53, 56 and 157.

10. At page 106[6] there were discussions about offers.  I had regard to all of the material from page 49 to 157.[7]  At pages 97 to 99[8] there were discussions about property rental and on page 98 text discussions about both the applicant and respondent having to move.

    [6] Exhibit A2, volume 1.

    [7] Ibid.

    [8] Exhibit A3.

11. On page 99 there were analogies to physical intimacy, which the respondent said was ‘a joke’.  I do not believe him.

12. The evidence of the respondent was flavoured by exaggeration in terms of his involvement and in terms of his views of the relationship and minimisation where he saw it as being harmful for his case.  I have treated his evidence with caution.

13. Having observed the respondent in the witness box and listening to his evidence including comparing it to documents to which were put to him, I am satisfied that he was endeavouring to understate the nature of the relationship between himself and the applicant. I am satisfied that he has reconstructed his view of the relationship and that affects the quality of that evidence. His evidence was at times unreliable.

Ms I

1. Ms I is the respondent’s sister and provided evidence set out in her affidavit filed 20 April 2016.  She described the relationship between the applicant and the respondent as a friendship.

2. Her evidence was of some indication that there was no intimate relationship between the respondent and the applicant.  She said that she had never heard him refer to the applicant in terms such as ‘hubby’ or the like.

3. She described the relationship as a ‘distant one’.

4. Ms I was cross-examined in relation to a series of telephone messages she left on the applicant’s telephone.  I am satisfied that Ms I structured her evidence for an outcome favourable to the respondent and that her evidence is unreliable.

5. I accept the submission on behalf of the applicant that in her evidence Ms I deliberately understated the relationship between the applicant and respondent.  I do not intend to go through all of the conversations, but it confirmed the overseas trips, the Christmas functions and Christmas seasonal greetings, using the term ‘boyfriend’ and that called herself his ‘sister-in-law’.

6. As such her evidence is significantly impeached and is unreliable.

Mr J

1. Mr J is the respondent’s nephew and one of Ms I’s sons.  He provided evidence set out in his affidavit filed 20 April 2016.  That material was read into evidence.  His evidence was short and he described the applicant as a ‘friend’ of the respondent.

2. It is significant that Mr J invited the respondent and the applicant (as a couple) to his wedding.  He said he could not recall a conversation with the applicant after the relationship ended and ‘not recalling’ was an answer in relation to some difficult questions.

3. I do not accept that Mr J’s evidence was supportive of the ‘friendship notion’.  I have treated that evidence with some caution.

Mr K

1. The affidavit of Mr K filed 25 August 2016 was read into evidence.  Mr K is a friend of the respondent and has known him since 1988.  His evidence was that he first met the applicant in May 2002 at a birthday at the respondent’s home.  He deposes further that he had many conversations with the respondent.

2. His evidence was admitted without controversy.  I have considered that unchallenged evidence in the light of the other evidence in relation to these proceedings.

Mr G

1. Mr G provided evidence contained in his affidavit of 20 April 2016.  Mr G is the fiancé of the respondent and has little knowledge of the relationship between the applicant and the respondent except as provided to him by the respondent.

2. Mr G says that he met the respondent in July 2013 and commenced a relationship later that month.  He first met the applicant in November 2013 although was not present at the time of a relevant conversation, which occurred at that time.

3. He gives evidence, which I accept, that the applicant was likely looking at documents of the respondent.

4. He also gave evidence that the applicant knew of his existence prior to October 2013.  That is not in issue, the question was whether he was aware of the intimate and/or interpersonal relationship between the respondent and Mr G.

5. I generally accept the evidence of Mr G to be reliable but not of great relevance.

Mr L

1. Mr L is a chartered accountant who assisted the respondent and was the accountant for the self-managed superannuation fund set up in 2009.

2. The evidence is clear that the fund was set up by way of acquisition from a commercial superannuation fund structure provider, at the request of Mr L, and who in turn had done so on the instructions of the respondent.  Mr L retains no documents except the tax returns from 2010 to 2015.  He did not retain the trust deed, made no file notes and has no correspondence.  To set up the fund he completed a two page form which he sent to a company. He did not retain a copy of that form.

3. In early 2014 the applicant was removed as a trustee and a member.  This was done without Mr L providing notice to the applicant, although it was asserted to have been provided by the respondent.  Mr L said that he did not see any funds coming from the applicant.  He had no instructions or information about the $10,000, which the applicant asserted had been deposited by him.

4. Mr L endeavoured to give evidence carefully and thoughtfully.  His evidence was not impeached.  I accept his evidence to be generally reliable although this is based on memory and not any notes that he made at the relevant time.

Mr M

1. Mr M provided evidence in accordance with his affidavit filed 20 April 2016.  Mr M is now working in the United Kingdom although still regards Australia as his home. 

2. I am satisfied from the evidence that Mr M and the applicant did not get on well.  Mr M did not recall the involvement of the applicant from the end of 2000 to 2001 when Mr M moved into a Suburb N accommodation.  He does not recall the applicant coming to his house warming party but he does recall the respondent coming to that party.

3. Mr M again stayed at the applicant’s home from 2013 for fourteen months whilst he was working for an airline company.  He said he had no indication of the relationship between the respondent and the applicant.  He did not recall the applicant staying overnight in 2013.  This is inconsistent with the evidence of Mr O and Mr E. 

4. Mr M’s recollection was at times vague and at times different from that of the respondent.

5. I am troubled by the reliably of his evidence, given the evidence of the parties and other witnesses. He has an incomplete memory and partisan view in support of the respondent.

Mr E

1. Mr E gave evidence from China on video-link in terms of his affidavit filed 4 August 2016.  The process was well constructed in that there was a solicitor in China who certified that there was no one else in the room apart from himself and an associate who managed the transparency of the process whilst the evidence was given.

2. Mr E was cross-examined on his affidavit as to the nature of his relationship with each of the applicant and the respondent.  He gave clear evidence that he was upset at the breakdown of the relationship as he and his partner, Mr F, had been friends with the parties for some time.

3. His evidence was clear that whilst the applicant did not live full time at the respondent’s home, he was there regularly on most Saturday nights and on the occasional Sunday night. 

4. He gave evidence that there was an event at the end of the relationship that had an impact on both the applicant and respondent.  He gave cogent evidence that the parties were affectionate and loving to each other and treated each other in what appeared to Mr E to be a warm and loving relationship and a monogamous relationship.

5. He said he was concerned about the welfare of the respondent at the time the relationship broke down.  He said he was not aware of any relationship between the respondent and other people during the course of the relationship.

6. Mr E was challenged in relation to credit and his responses were frank and clear.  He gave evidence of considering purchasing property with the parties, which came to an end when the respondent purchased a property in D Town in his own name.

7. There was a challenge to his evidence in terms of his closeness to his partner.  Mr E gave evidence that it was his affidavit and his thoughts, although he said that they talked about the relationship bearing in mind that Mr E and Mr F were in a relationship.

8. The evidence given by Mr E was frank and clear.  He was not in any way seriously shaken in cross-examination, although as with all human beings nothing was perfect, and I am satisfied that Mr E endeavoured to tell the truth as he saw it.  I treated his evidence as reliable.

Mr F

1. Mr F provided evidence in terms of his affidavit filed 4 August 2016.  Mr F and Mr E are in a relationship and have been in a relationship for some time.  They currently reside in China and Mr F also gave evidence from China.  He gave clear evidence as to the end of the relationship between the applicant and the respondent.  There were some issues about the dates however, I am satisfied that the events and the time of those events were relatively clear in the mind of Mr F as it was with Mr E.

2. He gave evidence that he has not socialised with the respondent since about October 2013 and there was some evidence that he did not believe that the respondent was entirely reliable.

3. There was some suggestion that Mr F and Mr E collaborated in terms of their affidavits.  I am sure they spoke however I am satisfied that they gave their evidence individually and frankly and that they would have spoken together from time to time.  They conceded that circumstance.

4. I accept his evidence that he, Mr E and the respondent drove together to a function at the applicant’s home, a town house in Suburb B. 

5. I listened carefully to the evidence of Mr F, read his affidavit carefully and, from his perception, I am satisfied that he endeavoured to give evidence frankly and carefully.  I do not find that he is an overtly partisan witness or his evidence was impeached in any way.  I will treat his evidence as being reliable.

FINDINGS

1. This proceeding flowed from the parties’ separation but it was an exchange of letters following separation that added fuel to this particular fire.

2. It is clear that the parties had been in a deep and at times loving and committed relationship. Their separation was very difficult and had a profound personal impact on both applicant and respondent.

3. The applicant arranged to have a letter sent by his accountant to the respondent in January 2014,[9] the letter was polite and conciliatory, including suggesting that the parties ought to consider a division of their assets amicably. It was a sensible, calm invitation to the respondent to discuss the issues and negotiate an outcome. 

   [9] Annexure RM-2 to the trial affidavit of the applicant. The letter was year dated 2013 instead of 2014.

4. The response was at best an invitation to fight or at worst a declaration of War. That letter was rude, demeaning and aggressive; the tone was ‘put up or shut up’ and if you ‘put up’ be ready for a firestorm of litigation. That letter from Eleanor Murphy and Company dated 16 January 2014 said:-[10]

   We are instructed by [the respondent].  We understand that you have been engaging in abusive and offensive behaviour calling on the telephone to himself [presumably the respondent] and his family and falsely claiming a relationship between yourself and our client which does not, and has not, ever existed.

   You have also made insulting comments in the course of these phone calls.

   Our client has now received a letter from a firm of accountants which contains false claims and seems that you are now disseminating fantastical stories inventing a relationship in some apparent endeavour to gain a financial advantage from our client.

   Unless you desist from this behaviour our client and/or his family will be obliged to apply to the local court for restraining orders.

   [10] Exhibit RM-1.

5. This has to be seen in the context of these parties having been in a relationship for twelve or thirteen years, having described each other at various times as ‘partner’, ‘hubby’ and having attended family functions together. The letter was appalling and ought not to have been written by the solicitor in that aggressive and confrontational form.

6. This letter, which describes the applicant as asserting ‘fantastical stories inventing a relationship’, was written on instruction from the respondent and I accept that it is the starting point in terms of the assessment of his evidence.

7. The applicant was a collector of papers, documents and data.  Having regard to the applicant’s evidence I am satisfied that the applicant and the respondent exchanged personal texts at the rate of about 100 text messages per day over a number of years. In addition they had almost daily emails and daily telephone calls.  It is likely that this was a fact of their relationship in addition to the text messages there were voice mails and telephone communications.

8. I am satisfied that the parties were in constant electronic and verbal communication each day and that they shared their intimate and mundane nature of their daily lives. These included intimate photographs.

9. The respondent’s explanation was that he sent intimate photographs to many of his friend and his sisters.  I am satisfied that the nature of the relationship between the parties was significant, intimate and continued over many years.

10. In respect of the relationship between the respondent and Mr G there was an issue about when it started and what the applicant knew.  I have heard and read the evidence of the respondent and the applicant in relation to the conversation in early November 2013.  I prefer the evidence of the applicant given that the respondent has no recollection of that conversation. 

11. There are a series of text messages between the respondent and the applicant in relation to Mr G and I am satisfied, on balance, that they were part of the general ‘somewhat sexualised’ communication between the applicant and the respondent. I am not satisfied that it reflects acknowledgement by the applicant that the respondent was in an intimate relationship with Mr G prior to November 2013. I find that the applicant knew about Mr G and believed he was simply a friend of the respondent whom the respondent was trying to assist through a period of depression. I am satisfied as to the veracity as to the statements as to what occurred in relation to the applicant’s discovery of the more intense relationship between the respondent and Mr G in November 2013.

12. In respect of the intimacy of the relationship between the parties, I find that the applicant and the respondent entered into an intimate relationship in about 2000 and that it was generally monogamous relationship up to and after 2007.

13. I accept the evidence of the applicant that the parties intimate relationship continued until 2013.

14. I find that the respondent introduced the applicant to his family as his ‘partner’ or ‘his husband’.  The applicant was made part of the respondent’s family attending family functions such as Christmas (albeit not Christmas day), a number of weddings and the funeral of both of the respondent’s parents. He was part of the close relationship between the respondent and his sister and engaged in three way, and somewhat explicit, text messaging.

1. The evidence of the respondent, his sister, Ms I, and his current partner Mr G and the respondent’s nephew, Mr J, significantly understate the nature and intensity of the relationship.

2. The evidence of the impact of the breakup of the relationship of the applicant, which was significant, only arose when he discovered not only had his relationship broken down, but that the respondent had commenced an intimate relationship with Mr G.

3. I accept that the applicant and the respondent travelled together to Europe in about 2006 and between 2007 or 2008 and 2011 they travelled to Asia on a regular basis together.  I accept that these travels were undertaken by them as a couple.

4. The applicant gave evidence about the intimate nature of their relationship and that it continued after 2006/2007.  I accept his evidence in that regard having regard to the communications.  There were some indicators of broader sexual activity and clearly this couple had a broad approach to sexual contact however, I am satisfied that if and when that occurred it was done with the knowledge of the other and at times with the participation of the other.

5. The hand-written notes on Exhibits A2 and A3 where the subject of agreement between counsel, which I accepted, that they were not part of the evidence. There was one exception to that, which is in Exhibit A2.[11]

   [11] Volume 2, page 367.

6. In respect of that evidence the applicant was cross-examined by counsel for the respondent.  The hand-written note, which was conceded to be in the applicant’s hand-writing, said:-[12]

   After [the respondent’s] mother passed away he asked if my mother would adopt him so he would not be without a mother.  She gave him a kiss and said I already have you as my son when you both get together I will always be here for you.

   [12] Ibid.

7. It was submitted that this was indicative that they were not in a relationship.  Having looked at that in the context of the nature of the relationship between these parties I am satisfied that it is more indicative of them being in a relationship rather than otherwise.

8. In this respect I note that the respondent’s mother died in August 2013 and the applicant’s mother died the following February.

9. I accept that the discussions on the acquisition of the D Town property, the retention of the Suburb H unit and the change from the Suburb B unit to the Suburb C unit were the subject of discussions between the parties.

10. The only bank account the parties had jointly was with the P Credit Union in which were the funds of the respondent.  The applicant operated this for some time. 

11. There was objective evidence that the applicant advanced the respondent $3,200 after the purchase of the D Town property, but that it was repaid.  There was objective evidence that the applicant was, at times, authorised to represent the respondent in relation to real estate enquiries albeit it not in relation to the later property.

12. There was some criticism of the applicant in that his family did not give evidence. Given that the applicant’s mother had passed away some years ago and the applicant and his brother did not talk and had not talked for some years, that criticism cannot be sustained.

13. The applicant was challenged in relation to expressions of love, which were not reciprocated.  There were quite a number of expressions of love of the applicant by the respondent and there were one possibly two in reply.  The applicant’s explanation, which I accept, was that he would often express it verbally rather than in text messages.  He said often a text message would elicit a telephone call.  It is clear that these parties text and telephoned each other constantly over the term of their relationship.

14. Consequently and in addition, I find that:-

    a)In or around 1996 the respondent purchased a property at Suburb H and in 1998 the applicant purchased his Suburb B apartment.  The applicant says the parties met in November 2000 and the applicant asserts that he began a routine of staying over at Respondent's apartment every weekend and at least once or twice midweek and that this continued until October 2013.  In addition he claims they saw each other three or four times a week.  On the weekend stays at the respondent’s apartment the applicant says that he and the respondent did all of the housework together.

    b)In the context over the 13 years of the relationship the applicant says that every day that he and the respondent text messaged each other and talked to each other throughout the day.  They discussed their lives, daily routine, what to eat.  In that regard they discussed and declared their love of and for each other (including saying "I love you", "you are the only one for me", "you've got me for life"), retirement, employment, superannuation, buying real property, and their respective families.  They celebrated each other’s birthdays, and those of their families.  The members of the respondent’s family telephoned the applicant on his birthday and this interaction was reciprocated.  Over the years the parties discussed marriage and civil partnership on many occasions.

    c)The respondent introduced the applicant to his parents, brother and sister and they visited this family regularly sometimes on special occasions and other times serendipitously.  The applicant was referred to as the respondent’s "partner", "husband", or "better half". 

    d)The respondent provided assistance to the applicant including some financial support and help with his studies.  Later, in about 2003 when the applicant was unemployed the respondent provided assistance with the purchase of groceries.  I accept the evidence of the applicant that:-[13] “During our respective periods of unemployment, the one who was employed would support the other with the purchase of groceries and the like”.  I accept this rather than that of the respondent including the denials in his affidavit filed 20 April 2016.[14]  

    [13] Applicant’s affidavit filed the 2 April 2016, paragraph 31 - page 7.

    [14] Paragraph 43.

    e)The applicant provided some limited assistance in interior renovation work to the respondent's home unit.

    f)When the respondent’s aunt, died the applicant went to her funeral with the respondent and they sat with his family.  Similarly, when the respondent’s parents died the applicant was part of the arrangements and attended the funerals as a member of the family and partner of the respondent, this included support the respondent, and members of his family, and assisting with the wakes afterwards.

    g)The parties attended each of the weddings of the respondent’s nephews as a couple.

    h)In 2006 the parties holidayed together for about two months in Europe and from 2007 to 2011 they holidayed annually together in Asia until 2011.

    i)In December 2008 the respondent made a will appointing the applicant and his sister as executors and nominated them as beneficiaries.  Later in April 2010 the respondent made another will appointing the applicant (who was expressed to be "partner" in the will) and his sister as Executors and nominated the applicant as the sole beneficiary of his estate.

    j)The parties from time to time discussed having children, including discussions with the respondent’s sister in terms of donating eggs.  In about 2009 the applicant worked for the respondent’s sister’s business for about four months.

    k)In or around 2009 the respondent set up a self-managed superannuation fund, and the applicant was intentionally made a trustee and was unintentionally made a member of that fund.

    l)In May 2012 the applicant sold his home unit in Suburb B and purchased a villa at Suburb C.  I accept the applicant’s evidence that this was part of the plan to have a house in D Town and use the villa as their Sydney residence. 

    m)After much searching together and negotiation of the part of the applicant on various properties considered for D Town the respondent purchased his in D Town.  The applicant assisted the respondent in arranging a bank loan for the purchase of D Town property.  Over this period the parties discussed living together in D Town.  The D Town house was renovated and the applicant assisted, including some paint colours.

Discussion and Summary

1. This proceeding was for the purpose of a declaration about the existence of a de facto relationship pursuant to s 90RD of the Act, which provides:-

   90RD Declarations about existence of defacto relationships

   (1)    If:

   (a)an application is made for an order under section90SE, 90SG or 90SM, or a declaration under section 90SL; and

   (b)a claim is made, in support of the application, that a de facto relationship existed between the applicant and another person;

   the court may, for the purposes of those proceedings (the primary proceedings), declare that a de facto relationship existed, or never existed, between those 2 persons.

   (2)    A declaration under subsection (1) of the existence of a de facto relationship may also declare any or all of the following:

   (a)the period, or periods, of the de facto relationship for the purposes of paragraph 90SB(a);

   (b)whether there is a child of the de facto relationship;

   (c)whether one of the parties to the de facto relationship made substantial contributions of a kind mentioned in paragraph90SM(4)(a), (b) or (c);

   (d)when the d facto relationship ended;

   (e)where each of the parties to the de facto relationship was ordinarily resident during the de facto relationship.

   Note: For child of a de facto relationship, see section 90RB.

2. The application was made by the respondent for a declaration that the de facto relationship never existed.  That order was opposed.

3. Notwithstanding that circumstance I am satisfied that the onus is on the applicant to establish that a de facto relationship, within the meaning of the Act, existed between the parties.

4. If there was no de facto relationship this Court has no jurisdiction and as such the proceedings would need to be dismissed.

Section 4AA(2)(a) the duration of the relationship

1. Given the evidence and the courts assessment of it, I am satisfied that the parties were in a relationship for a period of between twelve and thirteen years from November 2000 until October 2013.  This was in circumstances where the intensity of the relationship ‘ebbed and flowed’ over time.  However, they were together over that period.

Section 4AA(2) the nature and extent of their common residence

1. Both parties retained their separate homes.  The home at Suburb H was that of the respondent through the whole of the relationship.  The applicant resided in first his home in Suburb B and later in Suburb C.

2. The evidence of the applicant was that he and the respondent spent most weekends together.  This assertion of fact, over recent years, is supported by the evidence of Mr E and Mr F, whom I find are reliable witnesses.

3. The applicant said that he spent every weekend at the home of the respondent.  I do not entirely accept that evidence however; I find that he spent most weekends at the home of the respondent over the whole of the period.  This was sometimes a Friday and Saturday, sometimes a Friday and Sunday, and sometimes only a Saturday.  I am satisfied that there were some weekends when the applicant did not attend and I am also satisfied that there were times when the applicant attended during the week, although these were not common.

4. The applicant was cross-examined as to texting between he and the respondent on weekends over 2011, 2012 and 2013.[15]

   [15] Exhibit R5.

5. The applicant conceded at times he was at his mother’s home and at times the respondent was in D Town.  However, he said that often they would text each other from one room to another.  I was asked to reject that as a matter of ‘recent invention’.  I do not do so as these parties seemed glued to their electronic devices, otherwise they could not have been so consistent in there texting, telephoning and emailing.

6. I am satisfied that given the extent of text messages between these parties it is likely that they texted each other even when together.  I am satisfied that the applicant and the respondent travelled on holidays together and further that they generally spent one, sometimes two or more, nights together a week at the respondent’s home.

Section 4AA(2)(c) whether a sexual relationship exists

1. It is not in issue that a sexual relationship existed between the applicant and the respondent from late 2000 to 2006/early 2007.  The respondent asserted that that sexual relationship ended after that time.

2. The respondent asserted that the parties’ physical sexual relationship ended in about 2006 or 2007.  It was put to him that it did not.

3. After hearing the evidence of both parties I made the finding that there was such a relationship.  This is to some extent supported by electronic communication between the parties.[16]

   [16] Page 184, 185, 189. check exhibit

4. The respondent asserted that the applicant knew about his sexual relationship with Mr G from July 2013.  I do not accept that evidence.  I accept the submission by counsel for the applicant that even looking at the text messages there was a lack of jealousy and that the respondent’s sister was at times involved in these (sometimes light hearted) exchanges of ill-considered thoughts.

5. Having regard to my assessment of the evidence of the respondent and the applicant and having regard to the emails that passed between them and their very frank and open exchange of emails, sometimes with photos, I find that they have had a sexual relationship throughout the whole of the time they were together, and that such relationship was substantially monogamous.

Section 4AA(2)(d) the degree of financial dependence or interdependence, any arrangements for financial support between them

1. These parties generally retained their property to themselves.  The respondent retained his Suburb H unit and later the property at D Town.  When he received $3,200 from the applicant he repaid that loan shortly afterwards.

2. The applicant retained his property at Suburb B and then Suburb C.  Their financial interaction was, in the circumstances, relatively limited.

3. I also accept that from time to time both the applicant and the respondent were unemployed and supported themselves whilst unemployed.

4. I accept the evidence of the applicant that when they went out sometimes one would pay for a meal and sometimes the other would pay for a meal.  They provided meals to each other from time to time.

5. The respondent had the applicant work with him with a joint bank account with the P Credit Union for a short period of time and the applicant also was trustee of the respondent’s superannuation fund.  The respondent was also a member of that fund, albeit not intentionally, although on balance I am satisfied that he paid no monies into the fund.  There were certainly discussions as to whether he would do so, but on balance I accept that no money was paid to that fund by the applicant.

6. The applicant provided some assistance in furnishing and maintaining the Suburb H unit and some renovations and development of the D Town property. This was a modest financial dependence or support.

Section 4AA(2)(e) the ownership, use and acquisition of their property

1. In about 2009/2010 the respondent set up a superannuation account. He and the applicant were the trustees of the fund.  He and the applicant were members of the fund.  In the P Credit Union documentation[17] he referred to the applicant as his partner.  In a note to the board of directors he referred to the applicant as his partner.  Similarly, page 203 of the P Credit Term deposit application was in the respondent’s handwriting.

   [17] Exhibit A2, page 198.

2. In email 8 December 2007 there was a suggestion of ‘getting credit cards’.  The explanation in relation to this was that it was each of the parties was getting a credit card.

3. There was an email to Q Brokers about the superannuation account.[18]  Details of the exchanges are set out in relation to the shareholding between pages 206 and 271 of Exhibit A2, volume 1.

   [18] Exhibit A2, page 207.

4. The respondent could not recall if a spread sheet was designed by the applicant.  He said that they jointly managed the funds, but that he was primarily responsible for the investment decisions.  I do not believe him.  I am satisfied that the decisions were subject of joint discussions.  Exhibit A3 at pages 119 to 127 were indications that the parties had just ‘started their own super fund’.

5. Evidence was given by the parties’ accountant Mr L that the inclusion of the applicant was a ‘typographical error’.  I accept that Mr L was telling the truth, as he saw it. I accept that the superannuation fund was set up by the respondent primarily for his own superannuation.  .

6. In respect of the respondent’s superannuation fund I accept that the respondent set up a self-managed superannuation fund.  He appointed himself and the applicant as trustees, and both were appointed as members. I am not satisfied that the applicant and the respondent both knew that they were to be members. 

7. There was an assertion by the applicant that he gave $10,000 to go into the respondent’s superannuation fund.  This fact was denied by the respondent.  That fact was not established.  It could have been established by indications of where the money came from and from which account and the like.  It was not.  As such I am satisfied that the applicant put no monies into that account.

8. The respondent purchased a property in D Town.  I am satisfied that the applicant assisted him in finding that property and was integrally involved in that acquisition.  I accept that they were considering the purchase of that property, albeit in the respondent’s name, for a retirement for both of them.

9. However, the property was purchased wholly by the respondent and all of the monies were paid by him.  There was some minor work done to the property by the applicant. I am satisfied that the applicant was intrinsically involved in the acquisition of the property in D Town.  This is because I, on balance, prefer the evidence of the applicant.  The evidence of the respondent was at times inconsistent with that of the applicant and inconsistent with the documentation produced.  Some examples of this were in relation to the emails at page 248 of Exhibit A2 in relation to the text exchanges regarding the purchase ‘together’. The respondent asserted the property was purchased just for him, and in fact that ended up being the circumstance. 

10. The applicant undertook some decorating work at the respondent’s house at a relatively minor nature when considered over the years.  I generally accept the evidence of the applicant in that respect.

11. The applicant and the respondent discussed buying real property together.  They did not ever do so.  They did not support each other in financial terms in terms of the acquisition and sale of property although they assisted each other in practical terms such as dealing with real estate agents, inspecting properties and the like.

12. As to bank accounts, I referred to that earlier in these reasons.

Section 4AA(2)(f) the degree of mutual commitment to a shared life

Mutual affection

1. I was taken to numerous examples of the respondent being affectionate to the applicant.  The respondent said this was not reciprocated but it was clear that they expressed emotion, primarily from the respondent to the applicant (as far as I can see) including the exchange of intimate emails.  Exhibit A2 provides evidence of broader family interaction and personal interaction:- 

   a)Page 335 is photos of the christening of a relative’s child;

   b)Page 339 happy birthday ‘lucky to have a hubby’.  To my husband dated … 2013;

   c)Page 343 card to applicant in the respondent’s handwriting with words of affection;

   d)Page 348 card addressed to both parties; and

   e)Pages 350 to 355 wedding invitations and photos of the wedding.  I will not go through all of the evidence in that respect but it continues.

1. I am satisfied that the applicant was significantly involved in the respondent’s family life and was referred to as a partner from 2002 to 2013.  The parties planned to create a family together such as page 137, of Exhibit A2, volume 1 shows intimate exchanges of information.  Further by exchanges on pages 155, 175 and 176 of that exhibit there were reminders of ‘what the parties had’ and a reminder that they had forgotten to celebrate their anniversary.

2. There is a significant level of involvement of intimacy shown between the parties.  The quantity and nature of the communications seems not to have changed in 2007 or 2006.  This was a very prominent feature of this case.  I am satisfied that from 2000 these two parties had a shared commitment to a joint life together, certainly in their own different way, and all families are different.  Some examples of their shared life were the will of the respondent in 2008 and 2010, at least one of which was prepared by a solicitor.  The will by the applicant was in favour of the respondent. 

3. The extent of email communication between these parties was breathtaking.  Over a period of three and a half months they exchanged about eleven thousand two hundred and forty text messages from 14 March to 28 August 2013.  This is some one hundred text messages per day.  It did not include telephone calls, face to face meetings or emails.  It was intense and profound and, reading the material to which I was taken to, personal communication.

4. They communicated with each other from morning to night.  They expressed terms of endearment, particularly the respondent.  It is a demonstrable example of the depth of their relationship, the like of which continued over many years.

5. I accept the engagement by the applicant in the respondent’s family.  He clearly had a close relationship with the respondent’s sister, Ms I and her family.  He was invited to weddings, attended family members’ funerals and other social functions.  There is a plethora of evidence in that regard.

6. It is clear that from 2000 onward these two parties merged their lives.

Section 4AA(2)(h) the care and support of children

1. In this case there was discussion of having children, however it did not progress further.

Section 4AA(2)(i) the reputation and public aspects of the relationship

1. I find that the relationship between this couple was a very public relationship.  They travelled together.  Their relationship was clear in terms of both of their families, in particular the respondent’s family with the use of expressions such as ‘partner’, ‘hubby’, ‘sister-in-law’ and the like.   It was a public and clear expression of their exclusive  one to one relationship.

2. When the relationship came to an end it was a dramatic end.  In that respect I accept the evidence of the applicant, Mr E and Mr F.

3. Counsel for the respondent submitted that this was analogous to an engagement which never got to the marriage.  She said that they did not get over the line and all they had was a deep and meaningful friendship.  I am satisfied that the relationship was much more than a mere promise as submitted by counsel on behalf of the respondent.

4. The evidence and findings set out in these reasons show that these parties had set up and participated in shared life on a genuine domestic basis, although there were some aspects, such as the time they lived together and the lack of financial interdependence that are contrary to conclusion. My task is to consider all of the aspects of their relationship.  In Sinclair & Whittaker [2013] FamCAFC 129 the Full Court approved the following passage from Lynam v Director General of Social Security (1983) 52 ALR 128; 9 Fam LR 305; (1984) FLC 91-577 where Fitzgerald J (at 131) said:-

   …     Each element of a relationship draws its colour and its significance from the other elements, some of which may point at one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitude and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.

Generally

1. The respondent said that if he called the applicant ‘my partner’ this was unintentional.  I reject that assertion.  I accept that the respondent called the applicant his ‘husband’ regularly if not constantly during the course between 2002 and 2013 and on a number of occasions ‘his partner’.  Further, I accept that he appointed the applicant as one of his executors and a beneficiary under his will.[19]  In the 2000 will he referred to the applicant as ‘his partner’. 

   [19] Exhibit A2 page 56.

2. The respondent had a counsellor whom he saw for over a period of about a year or so.  On one occasion the applicant came to one of the sessions.  I am satisfied it was in terms of the parties breakdown of their relationship and not, as was asserted by the respondent, as merely a friend accompanying him.

3. At the time of separation it was a highly emotionally charged time for both parties.  Such was the concern of the respondent for the applicant that he went to his home and sent text messages.  The respondent tried to minimise this however, I do not accept his evidence in that respect.

4. I find that the applicant did not know of the nature of the respondent’s relationship with Mr G until November 2013. As I have indicated earlier, I find that the separation occurred on about 26 October 2013 and the earlier communication around 13 October 2013 was more of a ‘spat’ between an arguing couple.

5. In her submissions counsel for the respondent said that the purchase of the unit at Suburb C was an opportunity missed for there to be joint cohabitation.  I accept that submission, however, I considered all of these facts together and consider them as a whole given the nature of the relationship.

6. In this overall consideration of all of the aspects of the parties’ relationship, including the tumultuous events of the breakdown of it in October 2013 and the aftermath (in which the respondent clearly expressed an intention to end the relationship to the applicant, I am satisfied that these parties were living together on a genuine domestic basis from November 2000 until October 2013. As a consequence there was a de facto relationship within the meaning of the Act and consequently, this Court has jurisdiction to determine the property proceedings as between these parties.

7. Accordingly I will declare the following:-

   1.That a de facto relationship existed between the applicant and the respondent from about November 2000 until about 26 October 2013;

   2.That such de facto relationship ended on or about 26 October 2013;

   3.I refer these proceedings to the list co-ordinator to allocate a date for a Conciliation Conference and make directions for the filing of further material if necessary; and

   4.The costs of both parties be reserved in relation to the application to this jurisdictional proceeding.

I certify that the preceding one hundred and eighty two (182) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 7 December 2016

Associate:     

Date:              7 December 2016