Milliford and Milliford

[2018] FamCA 581

FAMILY COURT OF AUSTRALIA

MILLIFORD & MILLIFORD [2018] FamCA 581

FAMILY LAW – JURISDICTION – De Facto Relationship – Where the applicant claims that she and the respondent were in a de facto relationship – Where the parties were previously married and divorced –Where there is insufficient evidence to establish that the applicant and respondent were in a de facto relationship.

Family Law Act 1975 (Cth) s 4AA

APPLICANT: Ms Milliford

RESPONDENT: Mr Milliford

FILE NUMBER: SYF 6832 of 1998

DATE DELIVERED: 1 August 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 30 July 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Pinnacle Lawyers

COUNSEL FOR THE RESPONDENT: Ms Steer

SOLICITOR FOR THE RESPONDENT: Young and Muggleton

Orders

1. That the application for a declaration as to the existence of a de facto relationship between the applicant and the respondent contained in the applicant’s Further Amended Application filed 13 February 2018 be dismissed.

2. That all outstanding applications be listed for call-over on 17 December 2018 at 10.00am for the allocation of hearing dates.

3. That each party file and serve all affidavit material upon which he or she wishes to rely by 4.00 pm on 30 November 2018, noting that each deponent, including the parties, will be permitted to rely on one affidavit only.

4. That no further affidavit be filed without the leave of the Court first obtained.

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 Milliford & Milliford 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 SYDNEY

FILE NUMBER: SYF 6832 of 1998

Ms Milliford

Applicant

And

Mr Milliford

Respondent

REASONS FOR JUDGMENT

1. These proceedings relate to the determination of the existence of a de facto relationship between Ms Milliford (“the applicant”) and Mr Milliford (“the respondent”).

2. The applicant and respondent were married in 1994. They had a child, X, in1994. They had a second child, Y, in 2000.  

3. The respondent asserts that they separated in 1998. In August 1998, the parties entered into consent orders in relation to property matters. They were divorced on 30 July 1999.

4. The applicant seeks a declaration that the parties were in a de facto relationship between 1999 and 2016. The applicant seeks to set aside both the divorce order and the orders in relation to property. Those applications will be determined on another occasion.

5. The respondent seeks a declaration that the parties were not in a de facto relationship after their divorce, or in the alternate, that their de facto relationship ended in 2006 and that, consequently, the matter does not fall within the jurisdiction of the Family Court.

6. The respondent concedes that between 2001 and 30 March 2006 they lived together with the children in a property at Suburb B which he owned. The respondent concedes that the Court could find that, until 30 March 2006, they lived in a de facto relationship.

7. If a de facto relationship existed until 2006 and not thereafter, then the Family Law Act has no application.

8. The matter comes before me solely to determine whether a de facto relationship existed between the parties, as contended by the applicant, until 2016.

9. It is not necessary to determine whether such a relationship existed from 1999 until 2006. The dispute is whether the relationship continued after 2006 until 2016. That approach was agreed by both legal representatives.

FACTUAL BACKGROUND

1. It is useful to set out the parties’ respective contentions which differ widely.

THE APPLICANT’S CASE

1. The applicant relied on an affidavit sworn by her on 25 July 2017 and an affidavit sworn by her on 5 April 2018. She relied on an affidavit sworn by the parties’ son X on 6 February 2018. Nothing in X’s affidavit is relevant to the present application. She also relied upon an affidavit of a neighbour, Ms C.

2. Her version of the relevant events is taken from those affidavits.

3. In November 1996 a property at D Street, Suburb E (“Suburb E”) was purchased by the parties in joint names. They jointly raised funds by way of mortgage. By virtue of the consent orders in 1998, the respondent became the sole registered proprietor of Suburb E and paid the applicant a sum of money.

4. The applicant deposed that in about March 2006, she was charged with assaulting X. At that time, the parties and the children were living in a property owned by the husband at F Street, Suburb B (“Suburb B”).

5. The applicant was sentenced to a good behaviour bond. X was removed from her care and placed in foster care.

6. It is her evidence that, as a result of the terms of her sentence, she was not permitted to live with the respondent and Y at Suburb B.

7. Thereafter, the applicant lived at Suburb G for three weeks then at Suburb H for about four weeks. She asserted that she then lived in the residence at Suburb E. On the applicant’s case, she moved to Suburb E about seven weeks after leaving the respondent’s home at Suburb B.

8. The applicant deposed that the respondent would bring Y to visit her at Suburb E.

9. The applicant deposed:

   54.… [The respondent] would stay over with me during the week every day and we would talk, spend time together, go shopping and be intimate.

   55.We remained as a family, however I resided at the [Suburb E] residence and [the respondent] resided with [Y] at the [Suburb B] residence.

10. The applicant paid child support for Y to the respondent.

11. The applicant deposed that in 2007 and 2008, the respondent stayed at Suburb E “every day during the week and he would go to the pub on the weekend”. During that period, the applicant deposed that she and the respondent went out for lunch at various clubs.

12. At some time in 2009, for two or three months, the respondent was in a relationship with another woman and they lived together at Suburb B. During this relationship, the respondent underwent surgery for cancer.

13. At the same time, the applicant was also in a relationship with a man whom she referred to as “Mr J”.

14. The applicant deposed that, when the respondent was discharged from hospital in 2009, he returned to the Suburb B property and she moved in with him to care for him.

15. In 2011, the applicant moved back to Suburb E. She deposed that the respondent “would come to my house every day during the week, I would make him his meals… we would talk at length and I would wash all his clothes”. She deposed that she and the respondent were affectionate towards each other but, because of the respondent’s surgery, did not have sexual intercourse.

16. The applicant deposed that the respondent paid half of the water and council rates for Suburb E and that she paid the gas and electricity bills.

17. The applicant deposed that from 2011 until 2013 the respondent would visit the Suburb E residence, they would talk and she would make him something to eat.

18. In 2013 the applicant’s uncle lived at the Suburb E home for two months. He is not a witness in the applicant’s case. Other family visited and stayed at Suburb E from time to time. None have provided affidavit evidence. From 2013 until 2015, the applicant’s mother lived at Suburb E. She is not a witness in the applicant’s case.

19. In 2014, the applicant deposed that the respondent came to the Suburb E home every day and that they spent almost the whole day together.

20. In 2015 the applicant experienced back pain. She deposed that the respondent would run a bath for her and prepare her meals. He fetched her medication from the pharmacy and helped her dress.

21. In March 2016 the applicant, at the request of the respondent, signed a document that she later learned was a tenancy agreement. In June 2016 the applicant was served with a letter from the New South Wales Civil and Administrative Tribunal (“NCAT”) advising her that a warrant had issued for possession of Suburb E on the application of the respondent.

22. On 29 November 2016, she returned home and found that the locks had been changed and she was not allowed into the house.

THE RESPONDENT’S CASE

1. The respondent relied on an affidavit sworn by him on 5 September 2017 and a further affidavit sworn on 20 July 2018.

2. The respondent’s version of the events is different.

3. He deposed that in 2006, when they were living together at Suburb B, the applicant was convicted of assaulting X. X was eventually placed in foster care and an order was made that Y live with him. Although the respondent deposed that those orders were made by the Family Court, documents tendered in his case established that the orders were made by the Children’s Court (as it then was).

4. He deposed that the applicant formed a relationship with a man named Mr J who was a tradesman and he allowed the applicant and her partner to live at Suburb E on the condition that they carried out repairs. When it became apparent that no repair had been done, he asked the applicant and her partner to leave and they rented premises in Suburb B.

5. In 2014, Y decided to live with the applicant. The respondent asked the applicant to sign a residential tenancy agreement to pay rent of $75 per week and he paid child support to her for Y. The respondent deposed “I remained in residence at the [Suburb B] property and did not reside at the [Suburb E] property with the applicant and [Y]”.

6. The applicant never paid rent and in November 2015, the respondent commenced proceedings to gain possession of Suburb E. On 23 March 2016, the parties signed consent orders whereby the applicant was to vacate Suburb E by 11 June 2016. She did not do so.

7. On 15 June 2016, NCAT issued a warrant for possession of Suburb E. The warrant was stayed on 24 June 2016. The stay was lifted on 17 August 2016. After further proceedings in the Supreme Court of NSW, the applicant vacated Suburb E in November 2016.

THE LAW

1. In determining whether a de facto relationship existed between two parties, the Court must have regard to the provisions of s 4AA of the Family Law Act 1975 (Cth).

2. Section 4AA relevantly provides:

   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.

CONSIDERATION

1. Against the disputed background set out above, I propose to consider each of the factors in s 4AA.

2. The applicant is legally represented.

3. Where the applicant’s assertion of a fact is denied by the respondent, she bears the onus of proving that fact on the balance of probabilities. Overall, the applicant bears the onus of proving that a de facto relationship existed.

(a)  the duration of the relationship

1. The applicant asserts that a de facto relationship existed until June 2016. She deposed that in June 2016, she received a letter from the New South Wales Civil Administrative Tribunal (“NCAT”) advising her that a warrant had issued for possession of Suburb E.

2. The respondent denies that they lived in a de facto relationship after March 2006 when he asked the applicant to leave the Suburb B home.

3. Whether a de facto relationship existed after 2006, and if so, when that relationship ended, will be determined having regard to the whole of the matters required to be considered.

4. It is convenient here to examine the documents which were annexed to the applicant’s affidavit, in support of her contentions.

5. The applicant relied upon her Centrelink statements for the financial years ended 2013, 2014, 2015, 2016 and 2017. Other than to demonstrate that she gave Centrelink her address at Suburb E, those documents do not demonstrate that she was in a relationship with the respondent. However, it is relevant that she claimed single status. Although that fact does not disprove her claim, she is not assisted by it.

6. The applicant relied on medical records from 1997 which are not relevant to the present enquiry.

7. A medical certificate dated 4 July 2017 is not relevant to this enquiry.

8. Letters from solicitors in 1998 are not relevant to this enquiry.

9. The applicant relied upon her tax returns for the years ended 30 June 2004, 2005, 2006, 2008, 2009. The returns were prepared by a tax agent who might have been expected to ask the applicant if she was in a relationship. Other than to give her address as the Suburb E address, they do not demonstrate that she was in a relationship with the respondent. In the 2004 and 2005 returns, the question “Your spouse’s name” is left blank. The format changed in the 2006 return. That question did not appear that year or thereafter.

10. In the year ended 2008, the applicant claimed that both X and Y were her sole dependents which was clearly untrue.

11. In the applicant’s tax return for the year ended 30 June 2014 the section “Your spouse’s name” was left blank. The applicant claimed that she had two dependent children. Since X was almost 20 years old and not living with her, that statement was false.

12. Notices of Assessment for the years ended 30 June 2011, 2012 and 2013 have no relevance to the issues to be determined.

13. A document issued by the Child Support Agency shows that the applicant paid child support to the respondent between 30 April 2007 and 9 May 2012. Penalties were imposed for overdue payments, and remitted, from 14 May 2012 until 19 July 2012. Other than to demonstrate that the Child Support Agency listed her address as Suburb E, that document does not assist her claim. Rather, the fact that she paid child support to the respondent suggests that the Child Support Agency accepted that they were separated and that she had signed a document to that effect.

14. Electricity accounts for the Suburb E property for November 2015, December 2015, April 2016 and gas accounts for May to August 2016 demonstrate no more than that the accounts were addressed to her as she deposed. There is no dispute that she lived at Suburb E during those periods.

15. Four accounts for council rates addressed to the respondent at the Suburb E property in 2015 and 2016 demonstrate no more than that the respondent was the owner of the property.

16. The judgment of the Supreme Court of New South Wales, delivered on 21 June 2017 by Justice Schmidt, in proceedings between the parties, does not assist the applicant’s case.

17. The judgment records:

    [The applicant and the respondent] have long been divorced. After their property settlement, [the applicant] continued to live with their daughter, rent free, at a property at [Suburb E] of which [the respondent] was the sole registered proprietor, following the transfer of [the applicant’s] interest in the property to him.

18. Her Honour noted that because the applicant was unrepresented, it was necessary to take some care in considering the case advanced by her. It does not appear that the applicant’s case before NCAT or before the Supreme Court involved any assertion that she and the respondent were, or had been, in a de facto relationship.

19. There is a reference in her Honour’s judgment to “proceedings now on foot in the Family Court and in the Equity Division of this Court” but that does not demonstrate that the applicant was claiming in the proceedings relating to the tenancy of Suburb E, that she was in a de facto relationship with the respondent.

20. A letter from K Hospital, addressed to the applicant at Suburb E, relating to an appointment in 2017, and various radiology reports, do not demonstrate that the applicant and the respondent were in a de facto relationship.

21. A photograph of the respondent and Y does not assist the applicant’s claim.

22. A letter from the applicant’s pastor dated 24 July 2017 makes reference to the respondent being her ex-husband but does not assert that the respondent was also her de facto partner.

(b)  the nature and extent of their common residence

1. The applicant deposed that after the respondent asked her to leave Suburb B in 2006, she moved to live with her half-sister Ms L for three weeks and then lived with her aunt Ms M at Suburb H.

2. It was her case that, other than as set out above, she lived at Suburb E.

3. The husband relied on a document prepared by solicitors from the Legal Aid Commission acting on behalf of the applicant in immigration matters. The document entitled “Personal particulars for character assessment” (“Form 80”) was forwarded to the Department of Immigration and Citizenship (“DIAC”) on 9 February 2011. At Question 7 of that document, the applicant is described as “separated” and “divorced”. She does not assert that she is in a de facto relationship. Her current address, as at February 2011, is given as 408 Suburb B Road, Suburb B.

4. At Question 21, the applicant gives her places of residence in Australia, relevantly, as follows:

   May 2006 to June 2007                  N Street, Suburb G

   June 2007 to March 2009               O Street, Suburb P

   March 2009 to June 2009               D Street, Suburb E

   June 2009 to July 2009                   Q Street, Suburb R

   July 2009 to October 2010             D Street, Suburb E

   October 2010 to February 2011     2 Suburb B (sic)

5. The form is signed by the applicant beneath a statement in the following terms:

   WARNING: Giving false or misleading information is a serious offence.

   I hereby declare that the information I have supplied in this form is, so far as I know or could reasonably find out, correct in every detail.

   I declare that I have read and understood the information supplied to me.

6. In cross-examination about her statement to DIAC, the applicant agreed that the Form 80 was prepared by her then solicitor on information provided by the applicant. The applicant was at that time illegally in Australia having overstayed her visitor’s visa. She denied that she had actually lived at the addresses nominated. In explanation she said that she was scared and did not want to be deported so she gave those addresses.

7. I do not accept that explanation to be genuine. No doubt the applicant was worried that she would be deported. However, she was legally represented and had she claimed (as she now does) that she was the mother of two children, living in a domestic relationship with the father of the children, that could not have harmed her case. The solicitor for the applicant was given the opportunity in submissions to explain why the applicant’s evidence on this issue should be accepted but was not able to do so.

8. In cross-examination she said that she did live at N Street, Suburb G but only as a live-in carer from Monday to Thursday. She did not suggest that the respondent visited her there.

1. In a “Care Plan” in relation to X, produced pursuant to section 78 of the Children and Young Persons (Care and Protection) Act 1998 (NSW), dated 12 May 2006, the applicant’s address is given as 2 N Street, Suburb G.

2. There is a dispute about the circumstances in which the applicant left Suburb B. She deposed that she was restrained from entering the Suburb B premises because of the terms of the Apprehended Violence Order (“AVO”) against her for the protection of X. The respondent denied that she was so restrained and deposed that he asked her to leave. The AVO was in evidence. Although by its terms it restrained the applicant’s behaviour towards X, it did not require her to leave the house. I accept that she left because the respondent asked her to go.

3. The applicant denied that she lived at her aunt’s home at O Street, Suburb P, from June 2007 to March 2009, insisting that she was living at Suburb E during that period. She did not call her aunt to support that assertion.

4. She denied that she had lived at Suburb R in June to July 2009. Asked why she had nominated that address in the Form 80 she said that she had lied. When asked why she had nominated that particular address, she said that this was the address of her friend Mr J with whom she was in a relationship.

5. The applicant denied that she and Mr J had lived together at Suburb E. She denied that the respondent agreed to their living at Suburb E so that they could effect repairs. She did not give any explanation for moving out of Suburb E.

6. However, she conceded that she did live at Suburb B Road, Suburb B from October 2010 until February 2011. That fact is consistent with the evidence of the respondent that he insisted she leave Suburb E because no repairs had been done. Her concession that she resided at Suburb B Road is contrary to her sworn evidence that she lived continually at Suburb E and that the respondent visited her there.

7. Contrary to her sworn evidence, the Form 80 establishes that the applicant represented to DIAC that she lived at Suburb E for three months in 2009 and then for a further 15 months from July 2009 to October 2010.

8. Although the applicant’s evidence was, at times, difficult to follow, I understood her to assert that she continued to live at 2/408 Suburb B Road until she signed the lease to occupy Suburb E in 2013.

9. On 24 March 2011, the applicant swore a Statutory Declaration which accompanied the Form 80.

10. She swore, relevantly:

    4.I separated from [the respondent] in 2004 and the two children were removed from my care in 2006 because I hit [X] when he was kicking me. [X] was very sorry he brought proceedings and he was living with me by his choice since November 2010 when he turned 16 years old. However since January 2011, I paid his $1500 driving without a licence fine and he continued to ask me for money and when I refused he became angry and left home. I do not know where he is living now. [Y] is still living with [the respondent] and I see her each weekend.

    5.I suffered severe domestic violence from [the respondent] during our marriage and we had some better times since our separation but we do not communicate with each other now since November 2010 when I had an argument over where I should pick up and return [Y]. …

11. The applicant swore that the respondent had declined to give an Assurance of Support in relation to her application for residence.

12. Her statement to the effect that she and the respondent did not communicate after November 2010 also contradicts her sworn evidence that they were in a loving relationship.

13. The applicant deposed that her uncle Mr S lived at Suburb E for two months in 2013 and that between 2006 and 2016, “my family and friends would always come over for a visit”. In 2013 until 2015, she deposed that her mother, Ms T lived with her at Suburb E.

14. The parties’ son X said in cross‑examination that he visited his mother at Suburb E on weekends during the period she lived there and that he did not ever see his father at Suburb E.

15. X said that he was aware that his mother had lived at N Street, Suburb G; at O Street, Suburb P and at Suburb B Road, Suburb B.

16. X acknowledged that, after he ceased to live with his father in 2006, he did not see his parents living in the Suburb E property together.

17. Ms C was a neighbour in the same street as the Suburb E property.

18. She deposed that in 2007, she had seen the applicant “back at [Suburb E]. [The respondent] would often be around as well.” Ms C did not expand on how often or in what circumstances she saw the respondent.

19. She deposed that she saw the applicant at Suburb E in 2008 but not the respondent.

20. Ms C’s evidence is contrary to the applicant’s statement in the Form 80 that she did not live at Suburb E between May 2006 and March 2009.

21. Ms C deposed that, in 2009, she “always” saw the applicant and the respondent at Suburb E with Y but she did not say when she saw them, for example at weekends or weekdays or at what time of the day.

22. In 2010 Ms C “hardly saw” the applicant and, in cross-examination, she said that in 2010 and 2011, she did not see the respondent.

23. In 2011, Ms C saw both the applicant and the respondent at Suburb E in 2011 “doing a clean-up”.

24. In 2012 Ms C saw the applicant helping the respondent mend the front fence and, on another occasion, mending external pipes.

25. Ms C deposed that in 2013 she often saw the applicant and the respondent shopping together and in 2014, “there were times” when she gave the applicant a lift to the shops and, when they returned, the respondent was at the Suburb E property.

26. In 2015, Ms C observed both the applicant and the respondent doing maintenance work at the church all three attended.

27. During 2016, Ms C “would often see” the respondent driving the applicant’s car with the applicant as a passenger and that “there would be times” that she went to the Suburb E property and the applicant’s mother told her that the applicant and the respondent were shopping. On 23 March 2016, Ms C deposed that she saw the applicant and the respondent “driving from their place going out for dinner at [Suburb U] RSL”. How Ms C was aware of the destination was not explained.

28. In cross-examination, Ms C said that she did not go inside the Suburb E premises.

29. Nothing in Ms C’s evidence was inconsistent with the evidence of the respondent that he took the applicant shopping because she did not drive and that he attended at Suburb E and performed maintenance.

30. There were a number of potential witnesses available to the applicant who could have given evidence about the respondent’s presence at the Suburb E home – her mother, her uncle, and the other “family and friends” who visited. None were called.

31. The history to which the applicant deposed in these proceedings is inconsistent with the history she gave to DIAC. She did not call witnesses who might have been able to assist the Court to determine which, if either, was accurate.

32. The applicant’s evidence about where she lived, when and in what circumstances, cannot be accepted where it is contested.

33. It follows from that finding that the applicant’s evidence in relation to other aspects of her claim must be treated sceptically.

34. The applicant has not established that she lived at Suburb E from 2006 until 2016 and, as a consequence, she is unable to establish that the respondent shared the Suburb E residence with her for all or any of that period. 

(c)  whether a sexual relationship exists

1. The respondent admitted that a casual sexual relationship existed between the parties after 2006 and until 2009 when he had his surgery.

2. Between 2006 and 2016, the applicant had relationships with two other men and the respondent had a relationship with another woman.

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

1. The applicant does not assert that she was financially dependent on the respondent or that there was any intermingling of their finances.

2. The applicant paid child support to the respondent for Y through the Child Support Agency until 2011 which does not support her contention that she and the respondent were living together.

3. Although she initially denied that the respondent paid child support to her for Y from 2012 onwards, she eventually conceded that was the fact. I infer that, in order for the respondent to pay child support to the applicant, someone informed the Child Support Agency that the parties were living apart and Y was living with the applicant.

4. The payment of child support does not support the applicant’s contention that the parties were living in a relationship on a genuine domestic basis.

(e)  the ownership, use and acquisition of their property

1. The applicant, from time to time, occupied the Suburb E property which was transferred to the respondent.

2. Having regard to the Form 80, to which reference is made earlier in these reasons, I am unable to find that, up to March 2011,  the applicant lived at Suburb E other than for three months in 2009 and then for a further 15 months from July 2009 to October 2010. I accept that she moved back to Suburb E in 2013 pursuant to the tenancy agreement.

3. On 23 March 2016, NCAT found that a residential tenancy agreement was signed by the applicant on 17 September 2013. The agreement stated:

   I [the applicant] am prepared to rent [Suburb E] in its present state of disrepair for the sum of Seventy-Five Dollars ($75.00) per week … I will be responsible for Gas and Electricity bills accrued on the property.

4. The applicant’s signature on that document was witnessed by a Justice of the Peace.

5. The existence of the tenancy agreement does not assist the applicant’s case.

6. The respondent gave evidence that, when Y wanted to live with the applicant, they jointly decided that she should leave her school at Suburb B and that Suburb E was a better school. In order to attend school at Suburb E, Y needed to live in the school catchment area and it was on that basis that he allowed the applicant and Y to move back into Suburb E.

7. There is no evidence that the parties had a joint bank account in the relevant period.

8. There is no other evidence of joint use of any assets after 2006.

(f)  the degree of mutual commitment to a shared life

1. There is no evidence, other than the applicant’s assertions and the respondent’s denials, of any commitment to a shared life after the separation in 2006 when the applicant left the Suburb B property.

(g)whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship

1. There is no evidence that the relationship was registered or that the applicant sought to register it. I draw no inference from this fact.

(h)  the care and support of children

1. The parties shared the care of Y but there is no evidence that they did so in any capacity other than as separated parents.

(i)  the reputation and public aspects of the relationship

1. The applicant has produced no document where she has represented to any person in authority that she and the respondent were in a de facto relationship or that they had any day to day involvement.

2. The applicant represented to DIAC in March 2011 that she and the respondent had separated and that they did not communicate.

3. In cross-examination about the public aspects of the relationship, the applicant said that other people might not have realised that they were in a relationship.

4. It does not appear that, in the NCAT proceedings, the applicant asserted that there was a de facto relationship or that the respondent was other than her ex-husband.

5. The applicant’s pastor does not assert at he was told that the respondent was the applicant’s partner.

6. The applicant relied on two documents from the records produced by V Hospital relating to the respondent’s surgery in 2009. The first document refers to his attending at the hospital accompanied by “Ex-Wife”. The second document relates to transport arrangements when the respondent is discharged and notes the source of transport to be “Wife”. However, both the applicant and the respondent gave evidence that the respondent was in a relationship with another person at the time and the evidence of the respondent that the applicant could not drive was not contradicted. No weight can be given to this evidence.

7. None of the “relatives and friends” to whom the applicant refers as having stayed at Suburb E have given evidence about their observations of the relationship.

8. The applicant’s mother, who lived with her from 2013 to 2015, did not give evidence.

9. X lived with the applicant between November 2010 and January 2011 and visited her at other times. He would have been able to give evidence of his observations of the relationship between his parents. He did not see them together.

10. The only evidence that the applicant and the respondent were regarded as a couple came from Ms C who deposed that, in 2015, they “looked like a happy couple” when she saw them both working on the maintenance of the church.

11. The applicant has not established that she and the respondent were publicly regarded as being in a domestic relationship.

CONCLUSION

1. The applicant has not established, on the balance of probabilities, that, having regard to all the circumstances of their relationship, she and the respondent, after 2006, had a relationship as a couple living together on a genuine domestic basis.

2. Accordingly, the application seeking a declaration that they were in a de facto relationship until June 2006 will be dismissed.

3. Directions will be made in relation to the outstanding applications.

I certify that the preceding one hundred and thirty-nine (139) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 1 August 2018.

Associate:

Date:   1 August 2018