MARTINEZ & COHEN - [2019] FamCA 140

FAMILY COURT OF AUSTRALIA

MARTINEZ & COHEN

[2019] FamCA 140

FAMILY LAW – DE FACTO RELATIONSHIP – Indicia of relationship – Whether de facto relationship existed.

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

Clarence v Crisp (2016) 55 Fam LR 292
Fleming v Schmidt [2017] FamCAFC 12
Lynam v Director-General of Social Security (1983) 52 ALR 128
Sinclair & Whittaker (2013) FLC 93-551

APPLICANT:

Ms Martinez

RESPONDENT:

Mr Cohen

FILE NUMBER:

SYC

5781

2017

DATE DELIVERED:

14 March 2019

PLACE DELIVERED:

Canberra

PLACE HEARD:

Sydney

JUDGMENT OF:

Gill J

HEARING DATE:

16 April 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Murphy

SOLICITOR FOR THE APPLICANT:

Australian Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Lethbridge SC

SOLICITOR FOR THE RESPONDENT:

Blanchfield Nicholls

Declarations

Pursuant to s 90RD of the Family Law Act 1975 (Cth), it is declared that:

The Applicant and the Respondent were in a de facto relationship from January 2013 to the end of July 2013.
The Applicant and the Respondent were in a de facto relationship from October 2013 to early July 2014.
The Applicant and the Respondent were in a de facto relationship from mid-June 2015 to December 2015.
The Applicant and the Respondent were in a de facto relationship for a total period of less than 23 months.

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 Martinez & Cohen 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 CANBERRA

FILE NUMBER: SYC 5781 of 2017

MS MARTINEZ

Applicant

And

MR COHEN

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

The parties to this matter are Ms Martinez, the Applicant, and Mr Cohen, the Respondent. The proceedings concern a claim for property adjustment arising out of a de facto relationship.
An issue as to whether or not the parties were in a de facto relationship for a total period of two years (the requirement for the Court to exercise the adjustment power) was identified and that matter was set down separately for determination as a preliminary issue. Hence, these proceedings concern an application for a declaration that a de facto relationship existed between the parties.
The declaration is sought pursuant to s 90RD of the Family Law Act 1975 (Cth) (‘the Family Law Act’). Section 90RD provides for a declaration as to a de facto relationship being made in support of an application pursuant to s 90SM for the alteration of property interests between the parties to a de facto relationship.
The onus rests upon the Applicant to demonstrate that the relationship between the parties should be characterised as a de facto relationship at any given point. To support her claims that the parties were in a de facto relationship for various periods of time the Applicant has relied upon a number of general assertions, and a significant number of discrete events or incidents.

De Facto Relationships

De facto relationships are defined by s 4AA of the Family Law Act as:
Meaning of de facto relationship
(1)A person is in a de facto relationship with another person if:
(a)the persons are not legally married to each other; and
(b)the persons are not related by family (see subsection (6)); and
(c)having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has effect subject to subsection (5).
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.
...
The task of determining whether a de facto relationship existed between the Applicant and Respondent requires an analysis of all the circumstances relevant to the particular relationship under consideration. The Family Law Act provides that "no particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship", and ensures that regard is had to all the circumstances.[1] As stated by the Full Court in Fleming v Schmidt,[2] the Court is entitled to have regard to any circumstances considered necessary, attach any weight to said circumstances as deemed appropriate, and no particular finding in relation to any circumstance is necessary to an overall conclusion as to whether a de facto relationship exists.
[1]Clarence v Crisp (2016) 55 Fam LR 292 at [53].
[2] [2017] FamCAFC 12 at [12].
In this context, the statements of Fitzgerald J in Lynam v Director-General of Social Security,[3] as approved by the Full Court in Sinclair & Whittaker,[4] are apposite, that:
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 attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.
[3] (1983) 52 ALR 128 at 131.
[4] (2013) FLC 93-551 at [55].
It may be observed that the Family Law Act and the authorities call for close attention to the considerations laid out in the legislation, in the understanding that no one factor is necessarily determinative. It is the collective effect of the factors that determines whether a de facto relationship was in existence.
The Applicant relied on the following documents:
(a)Initiating Application filed 5 September 2017;
(b)Financial Statement filed 5 September 2017;
(c)Affidavit of Ms Martinez sworn 1 February 2018 and Exhibits to that Affidavit;
(d)Affidavit of Mr D sworn and filed 9 March 2018;
(e)Affidavit of Ms F sworn and filed 14 March 2018; and
(f)Affidavit of Ms B Martinez (“Ms B”) sworn and filed 16 March 2018.
The Respondent relied on the following documents:
(a)Response to Initiating Application filed 28 September 2018;
(b)Affidavit of Mr Cohen filed 27 March 2018;
(c)Affidavit of Mr C filed 28 March 2018;
(d)Affidavit of Ms E filed 29 March 2018;
(e)Affidavit of Mr G filed 29 March 2018;
(f)Affidavit of Ms J filed 29 March 2018;
(g)Affidavit of Mr H filed 3 April 2018;
(h)Affidavit of Ms K filed 6 April 2018; and
(i)Affidavit of Ms M filed 10 April 2018.

The scope of the relationship on the parties’ cases

The outer limits of the parties’ relationship, however it may be characterised, was a period of four and a half years, from April or May 2011 to October, November or December 2015. The parties agree that their relationship was a volatile one, characterised by arguments and breakups, but that there was also physical intimacy throughout much of that period. Neither party considered that the relationship could be described as de facto throughout the entire four and a half year period.
The Applicant identified several periods in which she says that she and the Respondent were in a de facto relationship:
a)23 March 2012 until September 2012;
b)September 2012 until April 2014;
c)April 2014 until July 2014;
d)March 2015 until 29 December 2015.
It may be observed that a number of these periods run into the next. The division of the periods by the Applicant relates to where she says she and the Respondent were living during each period.
The analysis below has been divided into the various periods for which the Applicant claimed there was a de facto relationship. At the end of the proceedings counsel for the Applicant identified the facts that the Applicant’s case relied upon as evidence of a de facto relationship. These are contained throughout the chronological analysis below.
Despite the disputed matters between the parties, the Respondent accepts that there were four periods where they shared the same residence (without necessarily accepting that they were in a de facto relationship at the time):
a)January 2013 to June 2013;[5]
b)13 October 2013 to February 2014;
c)about six weeks in April - May 2014;
d)July 2015 to the end of December 2015.
[5] Respondent’s affidavit [80] and [83].

Credibility

It is important to observe that aspects of each party’s evidence has raised significant doubts about that party’s credibility.
A number of matters, which are dealt with in greater detail within the judgment, lead to the need for caution in dealing with either parties’ evidence, particularly where there is no external support for the account given.

The Applicant’s Credibility

For the Applicant, the matters that particularly undermined her credibility included the Applicant:
a)blacking out of parts of her bank statements that contained references to her payment of dating sites;
b)failing to produce bank statements;
c)making unfounded assertions that particular entries on those bank statements were attributable to expenses relating to the relationship; and
d)using images to support the existence of the relationship where the dates on the images conflicted with dates appearing on the same images as produced by the Respondent.
The Applicant’s credibility was further undermined by the Applicant’s explanation for her statements about “moving on” from the relationship which were sent to the Respondent in emails and SMS communications. The Applicant denied that these statements reflected an intention to ‘move on’ but were instead intended to prompt the Respondent to reflect on the relevant argument, overcome aggression, resolve the argument and to continue the relationship.[6] While the statements may have had a dual purpose, a number of the messages reflected an intention to end the relationship.
[6] Applicant’s affidavit [18]
The Applicant’s credibility was further undermined by both her conduct regarding disclosure of her tax returns and the content of the tax returns. On 16 October 2017 the Respondent requested the Applicant’s tax returns for the 2012 through to the 2015 financial years. The Applicant had accepted that she filed returns for these years. The Applicant said that the Respondent’s request was brought to her attention and that the relevant tax returns were provided to her solicitor to be sent on. This, she said, was done by sending an email to her accountant instructing him send to her whatever he possessed, which was then sent on to her solicitor. The Applicant was unable to remember what tax returns she had seen at this point.
In February 2018 the Respondent’s solicitors wrote to the Applicant’s solicitors complaining that the returns had not been provided. The Applicant repeated that she had given the material to her solicitors. A call was then made for the returns.
On the second day of the trial the Applicant provided her tax returns for the years ending 30 June 2012, 2013 and 2014. None of these disclosed a de facto relationship with the Respondent.
The Applicant accepted that in relation to the preparation of tax returns, she knew that she was under a statutory obligation to tell the truth about her circumstances. Despite her assertion to the Court that she was in a de facto relationship with the Respondent, she made no disclosure of the existence of a spouse in that return. She sought to explain this away by saying that it was not a matter that she had discussed with her accountant.

The Respondent’s Credibility

The Applicant was not alone in having matters that undermined her credibility.
The Respondent was inconsistent in his oral responses to questioning about the relationship. On a number of occasions he made denials about, or understated, the assistance that he received from the Applicant, only to have to later concede her role as greater than he had previously made out.
One particular example of such a denial came when the Respondent was questioned by Counsel for the Applicant as to the reasons for the pre-nuptial agreement that he asked the Applicant to sign in 2014. The Respondent denied that he asked her to sign it because he knew that she had made a significant contribution. He emphatically asserted that she had “Never made any contribution”.[7] This statement was clearly untrue, as the Respondent was compelled to grudgingly admit, particularly when directed to photographic evidence of contributions by the Applicant.
[7] T194
From the perspective of the Respondent’s credibility it is concerning that the Respondent consistently had little or no recollection of dates or occurrences unless they were explicitly shown to him. This was consistent both with an unreliability of memory or with a lack of candour.

chronology of the relationship

The initial relationship

The Applicant does not claim that the parties were in a de facto relationship at the start, or close to the start, of their relationship. Instead, this discussion of the initial period assists with understanding the development of the parties’ relationship and contextualizing those periods in which the Applicant says that the relationship was de facto.
The parties met in April 2011. A sexual relationship commenced shortly after. At that time the Applicant was living in rented accommodation on L Street, Suburb O and the Respondent in rented accommodation on P Street, Suburb N.
During 2011 the relationship progressed to the point of the Respondent sharing information with the Applicant about his health. In his oral evidence, the Respondent said that he had spoken about his health only in general terms to the Applicant, and initially denied having significant health problems as of 2011. However, the Respondent subsequently accepted, when referred to correspondence from that time with the Applicant,[8] that he did have significant health issues. The correspondence demonstrated that he had shared the issue in detail with the Applicant.[9]
[8] EXPM1 p 10
[9] EXPM1 p 10
The Respondent accepted that in August 2011 he may have “offered” for the Applicant to accompany him to visit a doctor, and that he may have introduced her to the doctor as his partner.[10]
[10] T150
In support of the developing nature of the relationship the Applicant noted that in October 2011 the Respondent sought her opinion for a newspaper advertisement to sell one of his properties.[11]
[11] EXPM1 p 16
The Respondent also consulted the Applicant about his finances in September 2011. While at paragraph 107 of his Affidavit the Respondent had denied discussing his earnings or financial arrangements other than in general terms with the Applicant, he accepted that early in September 2011 he had shared a significant outline of his loans, bills and outgoings, writing to the Applicant saying “help me, help me, help me if you can”.[12]
[12] T155; EXPM1 p 7
The Applicant’s daughter, Ms B Martinez, said that the Applicant introduced the Respondent to her as “my partner [Mr Cohen]” in late 2011.[13]
[13] Affidavit of Ms B Martinez [3]
The Respondent says that the relationship broke up in December 2011, but resumed again in 2012 when the Applicant recommenced giving the Respondent massages. The Applicant worked in part as a health therapist.
From January 2012 the parties were visiting the Respondent’s property at Town CC. Whilst the Respondent suggested that they only visited the property together a couple of times, he ultimately conceded that it was numerous times upon being presented with photographs from this period. Photographs from January 2012 and March 2012 show the parties engaging in activities at the Town CC property.[14]
[14] EXPM2 p 155, 157-159, 170-171
At this time the Applicant was running a business and the Respondent was one of her clients. During February 2012 he was paying the Respondent for a program that she was running.[15]
[15] Respondent’s Affidavit; Annexure A
The Applicant was also providing remedial massage for the Respondent. In February 2012 the Applicant billed the Respondent for massage, but discounted the bill. When the discounted bill was not paid in full the Applicant followed the Respondent up about the balance.
The conclusions to be drawn for this period are that the parties were in an intimate relationship, although it was not a de facto relationship. The relationship was also of greater seriousness or intimacy than initially admitted by the Respondent, as evidenced by the sharing of health and financial issues on his part with the Applicant.

March 2012 until September 2012, at Suburb R

This period marks the start of when the Applicant says that the parties started to live together and that the relationship became de facto in character. The Applicant’s case is that in March 2012 the parties moved in together at Suburb R together with her daughters, and the de facto relationship commenced.
The Respondent denies both that the parties moved in together and that they had formed a de facto relationship.
The Applicant accepted that in the period from February to May 2012 the Respondent lived between three properties, being Suburb S (a property owned by him), Suburb N and Suburb O. The house at Suburb S was re-tenanted in May 2012.
The Respondent accepted that the Applicant visited him from time to time between February and May 2012 at his property in Suburb S.
During this period the Respondent retained his home at Suburb N. The Applicant said that she would visit at home when there was no one else around. The Applicant said that there are only two occasions where she spent overnight time at Suburb N. Throughout this time, the Respondent kept his dog at the Suburb N home. The dog was not moved to the Suburb R property.
The Applicant asserted that from March 2012 the Respondent spent 4-5 nights per week at her home in Suburb R, and the balance of time at his home in Suburb N.[16] However, the Applicant’s evidence did not match this assertion. The Applicant was inconsistent within her affidavit material where she described the conduct of the parties’ relationship. At [58] of her affidavit of February 2018 the Applicant said as follows:
our usual routine was (a) home after work and have dinner. Most Tuesdays we would go to watch a movie and have dinner out, and [Mr Cohen] would stay at [Suburb R] from Tuesdays through to Saturdays.
[16] Applicant’s previous affidavit [7], [41]

However, in an earlier affidavit filed in September 2017, she said as follows:
[Mr Cohen] would come to my home after work, and have dinner and stay for the night on Wednesdays through to Saturdays.
The Applicant was unable to adequately explain why her evidence had improved in such a manner between the two affidavits. Neither account reached her description of four-five nights, the maximum pattern described as four nights.
This tends to the conclusion that the Applicant has exaggerated the Respondent’s time at her home.
The Applicant’s evidence about the Respondent’s time at Suburb R is partly supported by evidence from her daughter, Ms B, who lived at the home from 23 March until August or September 2012.[17]
[17] Affidavit of Ms B Martinez sworn and filed 16 March 2018.
In her affidavit Ms B asserted that the Respondent also moved into the property when she moved in on 23 March 2012. She stated that that he spent most of his time at Suburb R and that “it felt like he was a permanent fixture in our family” as he “stayed home for dinner most nights” and “would stay overnight (most nights) as he had breakfast with us or would be home when I got home from work”.[18]
[18] Affidavit of Ms B Martinez [5]
Ms B asserted that the Respondent simultaneously moved his belongings into the Suburb R property when helping her move in, and that he and the Applicant shared the master bedroom.
However, Ms B also stated that “He often stayed over, I recall, at least three to four times a week”.[19] Ms B described this as at a “minimum”.[20] Ms B’s affidavit recalls seeing the Respondent’s work boots at the property and his clothes within the household’s laundry.
[19] Affidavit of Ms B Martinez [7A]; T240
[20] Affidavit of Ms B Martinez [7A]; T240
That is, Ms B’s evidence did not rise to the frequency ultimately asserted by the Applicant, but instead supports a conclusion that the Respondent only stayed over three to four times per week.
Ms B said that even though only her sisters and the Applicant had keys to the house, that “we would always leave the back door unlocked” and it was “common knowledge to everyone who lives with us that the house can always be accessed even without a key”.[21]
[21] Affidavit of Ms B Martinez [7A]
This supports the idea that the Respondent had no key, but also that a key was not necessary to gain entry to the home.
Initially the Respondent did not accept that he had seen Ms B at Suburb R. He later accepted that he had seen Ms B from August 2012 when Ms B and he were there for dinner at the same time. This is an example of the inconsistency in the evidence of the Respondent.
The Respondent denies that he moved into the Suburb R home. He agrees that he assisted the Applicant to move in there. He denies that any of his belongings were moved into their home. He accepted that his work boots were there at times, “if I went there in the afternoon and stay the night, my boots were there and went with me in the morning.”[22] In his oral evidence he accepted that he had toiletries at Suburb R. I accept that he had more than his toiletries at Suburb R as described by Ms B.
[22] T158
The Respondent disagrees that the frequency of his staying overnight at Suburb R was in the order of a number of nights a week.
The Applicant says that from May 2012, a property she owned at Suburb U became unoccupied. She says that the parties conducted renovations at that time to said property. Although unclear when, or to what extent, the Respondent provided practical assistance in relation to this property.
During this period of time the parties travelled together and attended events together as a couple, the Respondent introducing the Applicant as his partner.
It was put for the Applicant that a witness and friend, Ms E, saw the parties attend her 50^th party on 30 June 2012.[23] According to Ms E the parties also attended a mutual friend’s 50^th on 12 August 2012.[24] Ms E described that the parties were in a romantic relationship and that the Respondent would mention that he was seeing the Applicant.[25]
[23] Affidavit of Ms E filed 29 March 2018 [13]-[14], [15], [18]; T253
[24] T253
[25] Affidavit of Ms E filed 29 March 2018 [6]
The Respondent thought that in June or July that the parties had broken up. Supporting the idea that they had broken up, and also demonstrating the volatile nature of the relationship, he emailed the Applicant on 2 June 2012 saying:
things to say or, but at this point for you, the end, if you truly wish it, is what I have to respect from you.[26]
[26] EXPM1 p 21
The Applicant denied that this reflected a breakup.
Despite the above, on being shown photographs from that period the Respondent accepted that they had a relationship at that time. However, he described the relationship as “dating”.
The Applicant described a volatile relationship in which the parties argued often, resulting in them spending days or weeks living at different residences during this period.
Ms B moved out of Suburb R in August 2012. Ms B asserts that she then visited twice weekly and that the Respondent was “generally present” when she attended for dinner.[27]
[27] Affidavit of Ms B Martinez [13]; T241
The Respondent conceded that by September 2012 there were clothes belonging to the Applicant at his property at Town CC, several hours from Sydney. In the Respondent’s evidence, the Respondent conceded that the Applicant cleaned the Town CC property in the same way that “any couple” would.
The Applicant asserted that at this time she met all outgoing expenses for the home, did the Respondent’s laundry and cooked.[28] She said that he would take the leftovers for lunch. The Respondent denied doing so. The Respondent did not recall his laundry being done.
[28] Applicant’s affidavit [49]-[55]
Accepting that they had travelled to Far North Queensland for the Applicant’s 50^th birthday in August 2012, the Respondent denied that the Applicant paid for that trip. He said that he paid for it from his credit card.[29]
[29] Respondent’s affidavit [71]
By 3 September 2012 the parties had argued and the Respondent emailed the Applicant saying:[30]
[30] EXPM1 p 37
never been happier in a breakup if this is what it is.
The Applicant responded to this email, in part suggesting that the Respondent should see a therapist. She denied that they had broken up at this point.
In support of the de facto relationship, the Applicant annexed bank statements for the period in which she asserted that the relationship was on foot. She said that she had annexed all accounts for her National Australia Bank and BB Bank accounts for the relevant periods. However, she had not. A number of months were missing from the statements that were produced.
Of those that were produced, the Applicant underlined a number of transactions asserting that these were payments she made that were connected to the relationship. She initially described them as expenses that they had shared. In underlining the various transactions the Applicant provided no supporting material, or even an explanation setting out how it was that the various underlined transactions related to the relationship. This left little confidence to rely upon those statements.
What confidence may have been available dissipated completely following the specific challenge as to a number of the transactions during a later period. When challenged as to cash withdrawals taking place on 28 April 2014, 9 May 2014, 26 and 27 May 2014, the Applicant stated that she had no “clue” as to what each of the cash withdrawals related to. The Applicant’s assertions, absent description as to how the transactions related to the relationship, should not be accepted.
The Applicant also provided bank statements for a BB Bank account commencing from 20 February 2012 and continuing through to 4 January 2016.[31] This was said by the Applicant to cover the period of the de facto relationship with the Respondent.
[31] EXPM5
The Applicant asserted, and the Respondent denied that in 2012 she obtained a loan to support the Respondent, and that he had said that once he sold his property at Suburb S they would “be ok”.[32] Expenditure of a loan to support the Respondent was not established.
[32] T163
Of the bank statements that were provided by the Applicant, a number of transactions were blacked out. Combining the blacked out transactions with a number of transactions located on the statements not produced by the Applicant (which were produced on subpoena) revealed that the Applicant had engaged in transactions on 3 March 2012, 13 June 2012, and 26 February 2013 for a ‘sugar daddy’ seeking website. As discussed later, these transactions continued sporadically over the next 3 years. She accepted that each of these sites were online dating sites. These transactions took place during the time at which she asserts that she was in a monogamous relationship with the Respondent.
The Applicant explained these transactions on the basis of research that she was undertaking, for a book that she has written. The Respondent accepted that the Applicant wrote such a book. The Applicant asserted that the entry was blacked out because it had nothing to do with the relationship with the Respondent. It is not clear when the book was published.
Given the doubts as to the Applicant’s credibility generally, her claim that the subscription to those sites was purely for book writing should not be accepted.
Mr D, a friend, client and accountant for the Applicant, gave evidence that the Applicant was his personal trainer in 2012. He visited the property once per week between May 2012 and August 2012 and saw the Respondent there in the mornings before the Respondent left for work.[33]
[33] Affidavit of Mr D filed 9 March 2018 [6], [11]
Similarly, a Mr M said that he had seen the Respondent at the Suburb U property after Easter 2012, and that the Respondent was conducting work on the property.[34] Mr M stated that
it was my understanding that [Mr Cohen] was staying at the Suburb U townhouse from time to time while he was renovating the property for [Ms Martinez]. [Mr Cohen] said to me at that time “I’m still living in the [Suburb N] house” which he was renting.[35]
[34] Affidavit of Mr M filed 10 April 2018 [9]; T242
[35] Affidavit of Mr M filed 10 April 2018 [9]
The Applicant asserted that she, together with the Respondent, had conducted improvement works on his property at Suburb S before October 2011 and again in 2012. She said that they had “built a lot of fences throughout the property.”
The Respondent challenged this assertion, producing photographs that he says were taken in 2005 that show fences on the property. Despite this, he accepted that further fencing was undertaken in 2012 to create yards for the stables.[36]
[36] T151
The Applicant also said that they had dismantled fences together, while the Respondent said that he dismantled fences during the period of time when he and the Applicant were not seeing each other. The Applicant accepted that it was probably correct that he had dismantled fences when they were not seeing each other.
The Respondent pointed to corroboration from his employee, Mr G, as to the dismantling of fences without the Applicant. Mr G was not required for cross-examination. In his affidavit, Mr G stated that he worked for the Respondent from the end of 2012 until about August 2015 in his landscaping business, as well as dismantling fences at the property at Suburb S. Mr G would meet the Respondent at the Suburb S property at 7:00am on week days and return with him to the property at the end of the work day before going home. My G’s affidavit cites that he met Ms Martinez at the Suburb S property and saw her a few times but did not see her doing any work around the property when he was there.[37]
[37] Affidavit of Mr G filed 29 March 2018
While it is unclear whether it is the Applicant’s or Respondent’s words, emails from 2 December 2012 and 3 December 2012 describe that this period at “[Suburb R] was hardly a relationship”.[38]
[38] EXPM1 pp 40-41

Conclusion as to this period

In summary it may be accepted that during this period the Respondent spent three to four nights per week at the Applicant’s home, as corroborated by Ms B for the period March to August or September 2012. The Respondent kept items at the home and assisted the Applicant with her house at Suburb U. The parties attended parties as a couple, and the Applicant attended Town CC, helping out with housework and keeping items there. Although the Respondent was at the home regularly after August, as per the evidence of Ms B, any frequency beyond a couple of nights per week is not established. The Respondent also kept a separate residence, or rather residences during this period. It has not been established that there was any significant sharing of finances.
Although it may be taken that there was a sexual relationship between the parties, their common residence was limited, as was their financial interdependence or cooperation (some work on each other’s properties) and, given the access to dating sites by the Applicant I cannot be satisfied as to the degree of a mutual commitment to a shared life.
There should not be taken to have been a de facto relationship for this period.

From September 2012 until April 2014, at Suburb U

The Applicant asserted that the next period of the de facto relationship continued on from the first period and coincided with their joint residence at her home in Suburb U. The Applicant says that Respondent lived at Suburb U for this period full-time. The Applicant says that they remained living together up until the separation that occurred on 14 June 2015.[39]
[39] Applicant’s affidavit [49]
The Respondent denies both the timing of moving in and also of the end of living together, although he accepts that for a time they stayed in the same house each night. He did not recall whether he had assisted to clean Suburb U for a move. He thought that he had helped with cleaning and painting in 2013.
The parties’ relationship continued and they engaged in various activities together. For example, on 30 September 2012 the parties visited a property owned by the Respondent in Town DD. On 2 October 2012 they were in Town CC together where the Respondent purchased a number of cows. The Applicant produced photographs of cows, one of which she asserted was bought for her in 2012.[40]
[40] EXPM1 pp 65-66
In October 2012 the Applicant and Respondent attended counselling together. The Respondent describes the relationship as “dating” at this time. On 7 October 2012 the Applicant and Respondent went shopping together for the purpose of the Applicant buying a couch.
Ms E asserted that the parties attended a mutual friend’s 50^th together as a couple on 17 November 2012.[41] In early December 2012 the parties were exchanging emails.[42] The status of the relationship was somewhat unclear in those emails. However in talk about the relationship the Respondent said:
It may have been a year, but we had only just started our real relationship when we moved to Suburb U and had counselling. [43]
[41] T253
[42] EXPM1 pp 40-41 emails dated 2 December 2012, 3 December 2012
[43] EXPM1 pp 40-41; T 253
The Respondent accepted that by this time the relationship was more than a “dating” relationship, although it is not clear what this meant.
When asked whether the relationship was serious the Respondent said:
we were always trying to see if we could get it into a serious relationship[44]
[44] T173
The parties again attended Town CC on 27 December 2012.
The Respondent’s Affidavit said that in early 2013 he moved half of his clothes into Suburb U and began to spend every night there.[45] In his oral evidence he said “beginning of ’12 - beginning of ‘13, yes”. He accepted in his oral evidence that from January until about May or June 2013 he lived at Suburb U with the Applicant. At [83] of his Affidavit he estimated his moving out at late June or early July 2013.
[45] Respondent’s Affidavit [80]
Ms B said that she moved into the Applicant’s home in February or March 2013 and saw the parties staying together and sleeping in the master bedroom.[46] Her affidavit also specifies seeing the Respondent’s clothes in the wardrobe, toiletries and clothes within the household laundry.[47] Ms B stated that the Respondent maintained the garden at the Suburb U property.[48]
[46] Affidavit of Ms B Martinez [18]; T241-242
[47] Affidavit of Ms B Martinez [7A], [13]; T241
[48] Affidavit of Ms B Martinez [13]; T241
This evidence is consistent with the Respondent’s account of spending every night at the property from early 2013.
Ms B’s identification of the timing of her move to Suburb U was reliant upon information that she had sourced from third parties to establish when she had been living outside of the home. While that indicates that reliance should not be placed on her time estimates, her evidence as to the Respondent’s presence there until late August 2013 is consistent with the messages about that time referred to below. Ms B’s evidence was that the Respondent was living at the Suburb U home, although she accepts that he was not always there when she attended for dinner.
The Applicant engaged in a transaction on 26 February 2013 for a ‘sugar daddy’ seeking website.
The Respondent agrees that he and the Applicant visited Town DD together on 6 April 2013 and Town CC on 22 April 2013, where they conducted bush burning at Town CC.[49] He accepted that the Applicant may have been present while he was working at the property at Suburb S on 26 June 2013.
[49] EXPM2 pp 190-191; T171; T237
Ms K, a friend of the Respondent, stated in her Affidavit that the parties attended the 50^th birthday party of Ms K’s then-partner together as a couple some time in 2013.[50]
[50] Affidavit of Ms K filed 6 April 2018 [5]
Mr D visited the Suburb U property a few times between September/October 2012 - April/May 2014 and saw the Respondent there.[51]
[51] Affidavit of Mr D filed 9 March 2018 [11]
The Applicant asserted that in 2013 she assisted the Respondent to conduct renovation work on his property at Town DD.
The mutual friend Ms E asserted that the parties attended a funeral of a mutual friend in June 2013.[52]
[52] Affidavit of Ms E filed 29 March 2018 [17]
In an email to the Applicant dated 12^th of August 2013, the Respondent stated that
Yes we probably not meant to be together. but spent two years together for many reason” […] Maybe you think you have dealt with it all. WHO knows, WHO knows when we have cleared it all, it we ever will. It happened, it will always be in our past minds, if talked of, what happened in our past, IS THERE[…] Yes it was two years and more than less was happy fun.[53]
[53] EXPM1 p 68
On 18 August 2013 the parties exchanged emails regarding their relationship.[54] In that exchange the Respondent said:
For the record our 27 month on and off relationship was FUN, not happy. There are two different things.[55]
[54] EXPM1 p 66
[55] EXPM1 p 66
These emails were written as though the relationship was in the past, indicating that at that point the Respondent regarded the relationship as over. The parties were in email correspondence between August and September 2013, with the Respondent seeking to resume the relationship.
On the weekend of 10 September 2013 the Applicant travelled to Town CC to spend time with the Respondent.
Initially denying that the Applicant had assisted with the repair of his speedboat at Town CC, the Respondent accepted that she had given him some limited assistance, including assisting with getting the engine back into the boat, adjusting the seats and the cables. He accepted that she may have assisted with the maintenance of fences on that property.
Following the trip the Respondent emailed the Applicant on 15 September 2013. In this email the Respondent criticised the Applicant for accessing “fitness singles” and “RSVP”, two dating sites, shortly after leaving Town CC on the Thursday afternoon.[56]
[56] EXCC1 p 98

The Applicant replied with the following:
I blocked you in one site I can’t on the other but please [Mr Cohen] IGNORE ME[.] DON’T CONTACT ME[.] DON’T EMAIL ME[.] I REALLY DON’T CARE HOW YOU FEEL ANYMORE I JUST WANT TO PUT YOU… US IN THE PAST WHERE WE BELONG NOW… IT S OVER GET IT IT’S over OVER OVER so please do us both a favour stop it.[57]
[57] EXCC1 p 99
The Applicant asserts that on 29 September 2013 the parties had an argument and the Respondent left for a few days.
The messages between the parties indicates that the relationship changed in character for a period in September and October 2013. Some sort of breakup occurred, but the parties continued their relationship to some degree during this time.
The Applicant says that the Respondent returned to her home shortly before he broke his foot. This evidence was corroborated by Ms B. The Respondent hurt his foot on 13 October 2013.[58]
[58] Respondent’s affidavit pp 96-107
In October 2013 the parties exchanged an erotic email.[59] On 15 October 2013 the Respondent and Applicant exchanged explicit emails which included an assertion by the Respondent that they had been “together for 27 months, with about four breakups in this time. Usually, each breakup lasting 2 to 6 weeks. This one was the finally straw”.[60] That is, this message indicated that their relationship had been on foot for 2.25 years, although it does not speak to the nature of the relationship during that time.
[59] EXPM1 pp 82-83
[60] EXPM1 p 82
The Applicant gave evidence that she cared for the Respondent whilst he recovered from a foot injury.[61] She says that during this time she did the driving, shopping, cooking and attending to the needs of the Respondent.[62]
[61] Applicant’s affidavit [82]; T244
[62] Applicant’s affidavit [82]
Further, the Respondent spoke to a friend, Ms E, about the relationship. She said:
[Mr Cohen] did not mention time that he and [Ms Martinez] were living together other than when he broke his foot which I think was in about 2013. I think he moved to her place at Suburb U for a period of time after he broke his foot, but I remember that he was not there for particularly long because he said to me not long after he told me that he the moved there “we have broken up again”.[63]
[63] Affidavit of Ms E filed 29 March 2018 [19]
This evidenced both the relationship being in place in October, but also as to its volatility.
The Applicant pointed to a photograph at p 198 EXPM2 as supportive of the relationship as at October 2013. A reference to that date was contained on the screen shot of the image as taken from the computer. This screen shot conflicted with the identical image which was produced by the Respondent on page 10 of his annexures, which bore information suggesting that he had the image in his possession as at April 2013. This negates the date of October 2013 as the Respondent had a copy of the image in his version prior to that date.
Ms E asserted that the parties attended the Respondent’s 50^th birthday party together on 15 November 2013.[64]
[64] T253
On 12 December 2013 the Applicant paid an amount in respect to the RSVP dating website.
The Applicant references the image at p 205 of EXM2 as being in support of an incident in which the Respondent had asserted that he would sell his property at Town CC, in circumstances suggestive that such a step was in support of their relationship and the seriousness of the relationship.[65] The Applicant asserted that this had occurred in February 2014. However, the information produced as to the date of the image at page 204 of EXM2 indicated that the image was taken on 22 December 2013 thereby not being referable to the time at which the Applicant put it.
[65] Applicant’s affidavit [91]
The Respondent accepted that in January 2014 he and the Applicant were discussing development plans for the property at Suburb S, including for development as a retreat to be operated by the Applicant. The discussions took place in the presence of a third party, Mr D. The Respondent explained this as a dream of the Applicant’s that was never going to happen.
On 21 February 2014 the Applicant emailed the respondent:[66]
… We had tried five times and it just was not there. My heart broke when I came to the realisation I had two choices. I had to let go… Be on my own for a while or accept what we had and ignore my heart as it chipped away with every remark you made, by justifying it with a valid excuse. It took me three weeks to come up with that decision. And this time I am going to realistic by it. I am so sorry [Mr Cohen]. You will forever have a very special place in my heart. p
[66] EXCC2 p 105
This is indicative that there was some change in the nature of the relationship at this time.
Despite this, emails on 23 and 24 February record the Respondent asking the Applicant to accompany him to his mother’s grave.
In his oral evidence the Respondent appeared to accept that he lived at Suburb U from around February 2014 for four or five months at the most, perhaps ending June 2014 (noting that the Applicant does not say that she was living there by that time). The Applicant’s case was that in April 2014 the parties moved out of Suburb U.
In February 2014 the parties exchanged emails in which the Respondent said:[67]
but you have found and felt true love with me, almost 3 years now, it is true, you know it is no matter how many times you wish to deny it, I am truly in love with you and I am a stayer till the very end
[67] EXPM1 p 104
In his oral evidence the Respondent denied that he was in love with the Applicant at this time. However, the Respondent accepted that in March 2014 he both still loved the Applicant and told her so.[68]
[68] T109
In March 2014 the Applicant accompanied the Respondent to visit his doctor. The Respondent asked the doctor to explain his X-rays to the Applicant.
The Applicant says that in April 2014 the parties were living together between three properties, in Town CC, Suburb V and Suburb X. At about this time the Applicant was providing massage work and other therapy for the Respondent.
The Applicant continued to undertake work for the Respondent after this time, but no longer billed him for the work.
The Respondent and Applicant agreed to counselling in October 2012, and the Respondent accepted that by late 2012 the relationship had become something more than dating.

Conclusion as to this period

There are a number of factors that indicate that for a large part of this period the relationship between the parties had transitioned into a de facto relationship.
From January 2013 the Respondent started to spend every night at the Applicant’s home at Suburb U. While at times they had difficulties in their relationship, their co-habitation marked a significant development in their relationship.
For a period in August and September there was a break in the relationship. For example, the Respondent wrote to the Applicant on 12 August 2013 describing the relationship in the past tense. Although they spent some time together in September, on 15 September the Respondent messaged the Applicant about her accessing a dating site, to which she responded that the relationship with the Respondent was in the past. The Applicant says that they had an argument on 29 September 2013 which resulted in the Respondent leaving for a few days. The Respondent returned to live with the Applicant close to the time that he broke his foot on 13 October 2013.
There is uncertainty in how long before the message of 12 August 2013 the parties had broken up. There is uncertainty as to how long before the Respondent broke his foot that the relationship recommenced. Noting the onus upon the Applicant, these uncertainties result in it not being established by her that the relationship was de facto in character for the period of August and September 2013.
Again, in February 2014, the Applicant wrote to the Respondent that the relationship was over. However, immediately following that she accompanied him to a grave site and the parties moved in together at Suburb U. If this was a break in the relationship it was for a matter of days.
From January 2013 the parties (save for the periods identified above) lived together, travelled together, attended events as a couple, and undertook tasks either with or for each other. During this period the Respondent represented to the Applicant that he loved her. When the Respondent was injured, the Applicant cared for him.
This combination of an increase in their common residence, their continued holding themselves out as a couple, their assistance to each other, and their mutual commitment to a shared life as acknowledged by the Respondent’s description of a change in their relationship, and as evidenced by the Applicant’s care for him when injured, leads to the conclusion that from January 2013, when the Respondent started to spend every night at the Applicant’s home, the relationship can be described as de facto, save for the period of August –September 2013, where the relationship was ended for a period.

April 2014 until July 2014, at Town CC, Suburb X and Suburb V

According to the Applicant, in early April 2014 the parties moved out of Suburb U and lived briefly at Suburb X and then Suburb V.[69] The Respondent disagreed that they moved out of Suburb U and that they lived at Suburb X, but agreed that they moved to Suburb V.
[69] Applicant’s affidavit [93], [95], [99]
The Respondent accepted that the parties lived together from April to May 2014 in Suburb V, although he later described this as “floating around three properties at any – on any given time… Town CC, Suburb V and… Suburb X”.[70]
[70] Respondent’s affidavit [116]-[117]; T82
Of the time in Suburb V the Respondent said that they shared a room for three to four weeks and then the relationship fell apart. He asserted that the Applicant moved out completely in the seventh week and did not pay any money towards that portion of the rent. The Respondent then stated that he returned to live in Suburb X during June/July and then to Suburb S in August.
This apparent end of the relationship asserted by the Respondent sits poorly with photographic evidence of the Applicant’s involvement with him in Town CC.
Photographs from 15 May 2014 and 18 May 2014 display the Applicant spending time at the Town CC property.[71] A photograph from 31 May 2014 displays the Respondent at Town CC.[72] Photographs from 9 June 2014 and 12 June 2014 show the Applicant at work on the Town CC property.[73]
[71] EXPM2 pp 208-211
[72] EXPM2 pp 214-215
[73] EXPM2 pp 216-219
On 25 June 2014 the Applicant asked the Respondent to sign a document, relating to a loan application to Z Home Loans that she described as a “white lie”.[74] In that document, which was signed by the Respondent, it was asserted that the parties had been in a relationship for over three years and moved in together a few months previously.
[74] Applicant Annexure D; Respondent’s affidavit [120]
The Respondent sent a message to the Applicant in June 2014, describing that they had been in a relationship for over three years.[75] In his oral evidence he disagreed that they had been in a relationship for over three years.[76]
[75] T142
[76] T142
The parties had a significant argument in June 2014 and on 26 June 2014 the Respondent sent a pre-nuptial agreement to Applicant. He did this, he said, because he was “very concerned of her nature” in relation to whether she might have a claim on his property.
It was suggested for the Applicant that the pre-nuptial agreement indicates that the Respondent knew they were in a de facto relationship. However, it does not clearly mark the relationship as on foot at that time.
The parties agree that they separated in mid-2014.[77] The Applicant asserts that the separation was to be for 12 months. The Respondent says that it was to be final. It may be taken that the de facto relationship came to an end in June or July. The argument, the pre-nuptial agreement, and the following communication set out below indicate that the relationship ended at some point before 7 July 2014.
[77] Applicant’s affidavit [99]
The end of this period of the relationship is reinforced by a message from the Applicant on 7 July 2014. The applicant agreed to sign the prenuptial agreement but said:[78]
I have never been nor am I after your money or your properties… I have resigned from the idea of US and have decided to move on with my life. But if my signature on a paper will help you sleep better than I will sign it…
[78] EXCC1 p 125
This indicates that the relationship had ended before this message, although it is not clear exactly when.
The separation in mid-2014 was also confirmed by Mr D.

Conclusion as to this period

Despite some dispute as to the extent to which the parties lived together, their activities together, their cooperation in respect of the Applicant’s loan, and the reasonably clear markers of the ending of the relationship, point to the de facto relationship being in place until shortly before 7 July 2014.

The period of separation commencing July 2014

Despite this separation, the parties still interacted, spent time together and maintained some form of relationship.
The parties had multiple communications, including the Respondent sending emails in September saying “I love you”.[79] This statement was in the context of the Respondent attaching a text by the Applicant from more than two and a half years prior (23 January 2012), after “going through an old phone”. Accompanying this screenshot the Respondent described the relationship in the past tense, stating that “I do love you for hanging in there for so long[…] Do love you so much for ALL YOU tried to and did do for me”. That is, although he still loved her, the relationship was not on foot.
[79] EXPM1 pp 137-139
Although no longer sharing a home, on 9-10 October 2014 the parties went to Town CC together.[80]
[80] EXPM2 pp 220-225; T246
Photographs from 9 October 2014 show the Applicant “helping out” at Town CC while a photograph from 10 October 2014 shows that they “finished the roof of water tank”.[81] Although initially denying her involvement, the Respondent grudgingly accepted some involvement by the Applicant on being shown photographs demonstrating such activity.[82]
[81] EXPM2 pp 220-225
[82] EXPM2 pp 194-198, photographs dated 12 September 2013, 9 October 2013, 30 October 2013
Similarly, after denying it the Respondent grudgingly accepted that the Applicant had given other assistance in the upkeep of Town CC including some checking of fences.
The Respondent admitted that their sexual relationship continued following their separation, describing that “all through 14 it was just sexually catching up” but then specified that this was “through the beginning of 14”.[83]
[83] T200
On 19 October 2014 the Applicant made a payment to the Y dating site.
The Respondent also sent an email on 26 October 2014 which stated that
“We have not failed, as no such thing, we are two determined in love to get it right. And if it takes more time you know it will be worth it very much in the end for both of us together”.
He also attached screenshots of a relationship program, with the words “I am so open to learn and go with this and even more than before […] Yes I do want that ultimate loving relationship”. These statements also suggest that the relationship was not on foot but that the Respondent desired its recommencement. In cross-examination about this email, the Respondent described this relationship in 2014 as one where “when you’re apart, you long someone, and when you’re with them, you don’t want to be with them. It’s, it’s just not a strong period of time through 2014 at all”.
Town CC was listed for sale on 20 November 2014.[84]
[84] Affidavit of Mr AA p 2
On 24 December 2014, the Respondent sent a picture of himself holding a bottle of champagne against his bare chest and also sending the Applicant what was apparently a photograph of her with a beer bottle against her bare chest.[85] In cross-examination he explained this was “like a Christmas card response to one she sent me previous, at another date”.
[85] EXPM1 pp 140-142
On 9 December 2014 the Applicant made a payment to the Y dating site.
Continuous email correspondence occurred after this date:
a)In an email from 20 January 2015 the Respondent described “walking out… [and] knowing the great lady I’m letting go” but stated that “I wasn’t saying goodbye when I went”.[86]
b)In emails from January 2015 the Respondent asked for the Applicant’s help with the cows on the property and asked her to be there for him after an upcoming medical operation for himself.[87]
[86] EXPM1 p 146
[87] EXPM1 pp 149D-E
On 24 January 2015 the Respondent asked the Applicant “Would u like to hang out the next two days if ur free”. The Applicant replied with a query “What’s your idea of ‘hang out’.[88] The parties ended up seeing a movie together, with the Respondent describing the Q Area as “closer to home” and the Applicant replying “closer to ur home lol ha”.[89]
[88] EXPM7 pp 433-434
[89] EXPM7 p 436
On 25 January 2015, the Applicant sent a text message that included the words “Love you”, in the context of “I’ve never loved kissing someone soooo much… Love you… Nite xx”.[90]
[90] EXPM7 p 437
The Respondent agreed that in text messages from 26 January he said that “I can’t stop thinking about US at Suburb V beach… I am so crazy in love with YOU”.[91]
[91] EXPM7 p 438
In cross-examination he explained this as “At the spur of the moment, at times, yes. It was on and off”.
On 4 February 2015 the Applicant made a payment to the Y dating site.
On 7 February 2015 the Respondent sent an extended text including statements such as “u r what I want! I’m happy to be by ur side & u mine” but also described problems such as the Applicant doing and saying things “in spite”. The Respondent told her to “have & keep ur online old and New friends, All male, to do as u wish” and described “thoughts to why I can’t jump and say YES to YOU….. I want to, but it hurts and does my head in” [92].
[92] EXPM7 pp 445-446
On 8 February 2015 the Respondent sent a text saying to the Applicant that “U certainly don’t waste time, or feel anything for me anymore… Move straight on… THATS the one big thing in our relationship… hurt and trust”.[93] Similarly, the Applicant said that the Respondent:
had 6 chances and a yes to a proposal u blew that one too… I have nothing else to give you…NO MORE – go and get some one else to play with.[94]
[93] EXPM7 pp 447-448
[94] EXPM7 p 452
However, in the same exchange the Respondent described that “I wanted you, addicted to our love for each other”, shortly before saying “The Love you want and found, is the Love You lost… Thanks for saying goodbye again”. [95] Regarding the description of being “addicted to our love”, the Respondent agreed that “We had a slight sexual addicted” but did not explicitly recall writing the text.[96]
[95] EXPM7 pp 453
[96] T208; EXPM7 p 433
The Applicant replied that
I wanted u a lot more than u wanted me… I knew I loved you and wanted to make a life together… When is enough [Mr Cohen]?... I am done with your silly excuses.[97]
[97] EXPM7 pp 453-454
On 16 February 2015 while the parties were discussing their history over the previous four years, the Respondent stated that “3 years together is not 4 years together with a major 7 month apart”.[98]
[98] EXPM7 p 466
The Respondent admitted that he and the Applicant started to sexually “catch up” again from 23 February 2015.[99]
[99] T200
Despite their interactions as set out above, the parties agree that from mid 2014 that they were not in a de facto relationship.

March 2015 until 29 December 2015

The Applicant asserts that the relationship recommenced in February or March 2015, at about which time the Applicant says the Respondent proposed to her and asked her to move into Suburb S.[100] While the Respondent denied in his Affidavit that he proposed to the Applicant, he did admit that he used words to the effect of “would you marry me?” while sitting side by side at the beach.[101] The Respondent’s Affidavit asserted that this was “not a proposal of marriage, but a general question if we could ever get the relationship to work and if I did actually propose”.[102]
[100] Applicant’s affidavit p 103; EXPM7 p 452 text message from 8 February 2015 from Applicant references a proposal.
[101] R[201]
[102] R[201]

However, the Applicant emailed the Respondent on 14 March 2015:[103]
this will be the last time you hear from me… We both have different expectations from life and from each other. I do not want to change or adapt to you, and certainly don’t expect you to do that for me… We tried 7/8 times and it just didn’t work… I have moved on and wish you do too.
[103] EXCC 2 p 162
Despite the discussions of marriage this indicates that at that time the relationship was ended, and that she had moved on, at least as far as the Applicant was concerned.
On 28 March 2015 the Applicant messaged the Respondent to say that she wanted to “b there for u on Tuesday” when he was going to wake up from an operation, offering to take him to the operation, pick him up or both.[104] The Respondent replied that he “would like u to be there when I wake”.[105]
[104] EXPM7 pp 468-9
[105] EXPM7 pp 468-9
A text message from 31 March 2015 from the Respondent to the Applicant before a medical operation reveals that he referred to her as his partner in the context of the operation “Have said u r partner”.[106] During cross-examination the Respondent asserted that he was generalising with the term. The Respondent agreed that he asked the Applicant to pick him up.
[106] EXPM7 p 474
According to the Respondent, in around April 2015 the parties recommenced having a casual sexual relationship.[107] However, this contrasted with his agreement in cross-examination that they were in a “casual sexual relationship” on 23 February 2015, and also his subsequent description of this sexual relationship resuming in March 2015.[108]
[107] Respondent’s affidavit [138]
[108] T200
On 1 April 2015 the Respondent said “Love you” to the Applicant and thanked her for going to the hospital, picking him up and making lunch.[109] The Applicant replied “LU 2”.[110]
[109] EXPM7 p 475
[110] EXPM7 p 476
A text message from the Respondent dated 14 April 2015 says:[111]
[111] EXPM7 p 494
morning [Ms Matrinez] Hmmm So, if we where together Would U like to live at Suburb S
The Applicant replied
Hmmm If?? Or When???... We deserve a fresh start of course that is if we WERE together [wink face emoji].[112]
[112] EXPM7 p 495
This suggests that the parties had renewed their relationship in some manner and were on the cusp of living together, but had not yet committed to that. They were contemplating moving in together, the Applicant had supported the Respondent in a medical matter and the Respondent had referred to her as his partner.
The Respondent agreed that he “offered if she would like to live [at Suburb S] if we could work it out, and at some time obviously she moved in there, yes”, but could not clarify a date when he had asked her this.[113] Counsel for the Applicant suggested that it was 24 April 2015.[114]
[113] T200
[114] T200
The Respondent accepts that at about this time he was also travelling to Suburb W to spend time with the Respondent and that their sexual relationship was active.
On 25 April 2015 the Applicant said in a text to the Respondent that she was on her way to Suburb U to pick up his clothes and could bring them to him or take them to her place.[115]
[115] EXPM7 p 505
A text from the Respondent on 27 April 2015 asked if the Applicant wanted to go to Town CC with the Respondent for a night and the following day.[116]
[116] EXPM7 p 509
On 3 May 2015 the Applicant texted the Respondent “Have I told u how much I love u ?”.[117]
[117] EXPM7 p 516
According to the Applicant, the Respondent lived at Suburb S, the Applicant at Suburb W until May 2015 when she also moved to Suburb S.[118] However, the idea that they were living together conflicts with messages passing between them.
[118] Applicant’s affidavit [103]-[105], [123]
On 1 June 2015, the Applicant sent a text message saying:
No Suburb U tonight [grin emoji] we lol do it some time next week as there is nothing on d house [wink emoji] c u at yours.[119]
[119] EXPM7 p 538
When the Respondent replied that the Applicant was always “celebrating drinking without me” the Applicant replied that “Well I spent two nights at yours [grin emoji] where are you [devil emoji] now”.[120]
[120] EXPM7 p 538
These are suggestive that the parties were still maintaining separate residences at this point.
On 4 June 2015 the Respondent sent a text message regarding the “What do u remember the option period and price got to do with the developers on Tuesday????” relating to Suburb S.[121]

[121] EXPM7 p 540

The Applicant replied that
I remember him talking about 10 g - n progressive payment but he kept referring to what u wrote... then he said something after d waiting period to find out what d government will allow him to do 6 - 18 months then the big payment.[122]
[122] EXPM7 p 540
This was indicative that some discussions were occurring between the parties regarding the proposed development of Suburb S, and that the Respondent was involving the Applicant in this.
On 5 June 2015 the Applicant sold her home at Suburb U for $915,000. She paid a portion of that money towards the superannuation, $130,000 by means of gifts to her three daughters, loans to two of her daughters and to pay out timeshare credits. She said that she did this in reliance upon the expectation that she would be moving in with the Respondent and that he would financially look after her.
In mid-2015 the parties moved in together, into the Respondent’s property at Suburb S. They dispute precisely whether this occurred in May or June of 2015. From the messages below, it appears that the moved did not take place until after 16 June 2015.
On 16 June 2015 the Respondent texted the Applicant to “Let me know b4u take things to Suburb S[.] I haven’t spoken to Flatmate yet” and that “U may need to stop at a hardware or paint shop for colour chart if the walls need painting”.[123] These statements indicate shared communication about house maintenance, and also the pending move into Suburb S.
[123] EXPM7 p 545
In June 2015 the respondent purchased a horse as a present for the Applicant.
An email from the Respondent to the Applicant on 20 July 2015 contains documents relating to the potential development of the Suburb S property.[124] The Respondent said that this was simply sent to the Applicant for printing rather than as evidence of a joint venture.
[124] EXPM7 pp 149X-149OO
However, during September 2015 the parties shared texts relating to Suburb S and building a house together there. On 4 September the Respondent texted the Applicant to “C if u can lookup any other developers in the area, so I can ring now”, with further discussion of a company on 7 September.[125]
[125] EXPM7 p 560
On 12 September 2015 the Applicant told the Respondent via text that “I love you”.[126] This text message then set out in substantial detail what the stages of this development would be, for example “House, pool, power, 3 phase power, shed, dam, All done”.[127] The Respondent’s dismissal that this was simply “light-hearted discussion of what possibly could happen to the property, but knowing it never will” is tenuous, when held in contrast with his immediately subsequent agreement that it did involve talking about building a house together as part of this vision.[128]
[126] EXPM7 p 565
[127] EXPM7 pp 565-566
[128] T212
In his affidavit at [143] the Respondent denied any recollection of discussing with the Applicant “in any detail plans for building of ‘our home’.”
The Applicant says that she deposited $5,850 into the Respondent’s bank account to contribute for groceries, the mortgage and bills. The Respondent says that this amount was paid in June 2015 and related to rental of three rooms for the applicant’s business, being a sum that equated to 13 weeks at $450 per week.
Ms B gave evidence that she was employed by her mother toward the end of 2015 when the Applicant was running her business from Suburb S. It is uncontroversial that the Applicant started to run her business from Suburb S. I accept the Respondent’s explanation for this payment.
On 4 October 2015 the Applicant called the Respondent “my love”.[129]
[129] EXPM7 p 576
On 6 October 2015 the Respondent said via text that he needed a massage, with the Applicant responding “Only if we can finished it off with ice-cream [wink tongue emoji]”.[130]
[130] EXPM7 p 577
The Applicant argued that the text message indicates that the massages were no longer paid for.
It was put for the Applicant that the Respondent’s response was contradictory.[131] The Respondent asserted that he made payments for these massages, although not for all of them, but also asserted that he only received massages infrequently as he let the Applicant’s daughter receive them instead.[132] It was put for the Applicant that the intimate nature of this text exchange suggests that the Applicant did in fact provide continued massages for limited or no financial remuneration. I accept that submission.
[131] T238
[132] Respondent’s affidavit [52], [203], [213]-[214]; T238
The parties disagreed about how many domestic duties the Applicant undertook during her time at Suburb S. The Respondent accepted that on occasion the Applicant had mowed the “vast” lawns at Suburb S. He accepted that she occasionally fed the animals.
The Respondent accepted that the Applicant purchased furniture to replace the furniture that was at Suburb S.
The Respondent asserted that by October the relationship had broken down again so that for October, November and December the Applicant was living in a spare room at Suburb S. However, the ongoing conduct of the parties did not support this as the end of the relationship.
The Respondent agreed that on 27 and 28 November 2015 the parties exchanged messages about counselling to address what Counsel for the Applicant described as “your issues”. [133] The Respondent said in these texts that if the Applicant booked the counselling he would attend “U book it, I’ll do it, Ur true loss it [if] not”.[134]
[133] T214; EXPM7 pp 588-597
[134] EXPM7 pp 592
The Respondent agreed that these discussions continued through to 10 December 2015 when the Applicant forwarded a text from a counsellor to the Respondent indicating that an appointment had been booked on Monday 14^th.[135]
[135] EXPM7 pp 596-597; T214
The Respondent’s statement that he was not “not doing counselling for partnership or marriage counselling, no” does not fit with his agreement that they were discussing counselling regarding the relationship.[136]
[136] T214
On 11 December 2015 the Applicant texted the Respondent to ask whether he wanted her to pick up Thai food on her way home.[137]
[137] EXPM7 p 598
Text messages from 19 December 2015 show the parties discussing people coming over to the house, with no apparent tension.[138] This is followed by a text exchange on 20 December which displays a disagreement between the parties, with the Respondent stating that
[138] EXPM7 pp 599
“I thought u came back go do something together Once Wrong Again”
and later
“U don’t ever try to hang out with me on weekends”.[139]
[139] EXPM7 pp 600
During this exchange the Applicant replied
U didn’t ask u push me away u ignore me or treat me like shit when I try to talk with u – u really think I am going to hang around for that? [140]
[140] EXPM7 pp 600
However, the end of the text exchange contains amicable messages such as “Did u go to get our yummy dinner”.[141] Text messages from 21 December appear to show that the parties were on good terms, for example “Wakie wakie Mwahhhhh Good Nite Sweet Heart [kiss emoji]”.[142] The Respondent did not agree that the messages demonstrated this, but accepted that they may have had sex.
[141] EXPM7 p 605
[142] EXPM7 pp 606-608
The Applicant’s case is that the parties had a loud argument on Christmas Eve 2015 and she then “remained calm in the home to not further anger [Mr Cohen]” and they had sex on 28 December 2015.[143] The Applicant stated that she flew to Brisbane on 29 December 2015 and moved out of Suburb S on January 2016, signalling the complete end of the relationship.[144]
[143] T248; Applicant’s affidavit [122]
[144] T248; Applicant’s affidavit [122]

Conclusion as to this period

Although in February or March there was discussion of marriage which, whether or not it constituted a proposal, reflected further commitment to a shared life. There had also been discussions of marriage before this point, followed by breakup, as were the discussions in March. That is, despite the discussions of marriage the relationship was still highly volatile.
Messages in April and May show the relationship developing again until in mid-June the parties moved in together at Suburb S. While there must have been an agreement to move in together reached prior to the move, it is not established when this occurred. However, the move in together was also accompanied by the purchase of furniture for Suburb S by the Applicant, and her participation in discussions with the Respondent about the development of Suburb S. She commenced the operation of her business from this home, in June 2015. Although rent was paid for the use for the business, this does not mean that Suburb S was anything less than her home. A commercial arrangement for the use of the premises is not necessarily inconsistent with the parties being in a relationship, as they undoubtedly were as at June 2015.
Although the Respondent asserts that the relationship came to an end in October with the Applicant moving into the spare room, they continued to have sex, share the home, co-operate in relation to collection of food, communicate intimately and there was the expectation that massages would be provided. They discussed people visiting their home. Importantly they discussed and arranged counselling for the benefit of their relationship.
These aspects of common residence, commitment to a shared life and sexual intimacy combine to give the relationship the character of a de facto relationship for the period mid-June to about Christmas time 2015.

Conclusions

It is incumbent upon the Applicant to establish that the relationship should be categorised as de facto at any given point, and to do so to the civil standard.
The effect of the findings is that although the parties were in an on and off relationship between April or May 2011 to October, November or December 2015, only two periods of that relationship should be categorised as de facto.
Those periods run from January 2013 until early July 2014, with a gap occurring in August and September 2013, a period of at most 16 months, and then from mid-June to the end December 2015, a period of 6 and a half months.

I certify that the preceding two hundred and thirty-six (236) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 14 March 2019.

Associate:

Date: 14 March 2019