MULLAN & WORRELL - [2016] FamCA 943

FAMILY COURT OF AUSTRALIA

MULLAN & WORRELL

[2016] FamCA 943

FAMILY LAW – DE FACTO RELATIONSHIP – Where the de facto wife seeks a declaration that the parties’ relationship ended in May 2009 – Where the de facto husband says the parties’ relationship ended before 1 March 2009 and the Court does not have jurisdiction in respect of an application made under Part VIIIAB of the Family Law Act 1975 (Cth) – Where the onus is on the de facto wife to prove that a breakdown had not occurred before 1 March 2009 – Where it was not until May 2009 that the parties took action to end the de facto relationship – Where a declaration is made that the de facto relationship ended in May 2009.

Child Support (Assessment) Act 1989 (Cth)
Commonwealth Powers (De Facto Relationships) Act 2003 (NSW)
Family Law Act 1975 (Cth)
Family Law Amendment (De Facto Financial Matters and other Measures) Act 2008 (Cth)

Cadman & Hallett [2013] FamCA 819
Cadman & Hallett (2014) FLC 93-603
Clyne v Deputy Commissioner of Taxation (1981) 150 CLR 1
Falk & Falk (1977) FLC 90-247
Fenton & Marvel (2013) FLC 93-550
Hopes v Hopes [1949] P 227
Jonah & White (2011) Fam LR 460
Jones & Dunkel (1959) 101 CLR 298
Lynam v Director-General of Social Security (1984) FLC 91-577
Morris v Morris (1972-73) ALR 893
Murphy v Farmer (1988) 165 CLR 19
Onslow & Onslow [2016] FamCAFC 7
Owens & Benson (2014) FamCAFC 243
Pavey & Pavey (1976) FLC 90-051
Sinclair & Whittaker (2013) FLC 93-551
Todd & Todd (No 2) (1976) FLC 90-008

Vaughan & Vaughan (1990) FLC 92-135

APPLICANT:

Ms Mullan

RESPONDENT:

Mr Worrell

FILE NUMBER:

SYC

3653

2015

DATE DELIVERED:

28 October 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

4 March 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Othen

SOLICITOR FOR THE APPLICANT:

Allsop Glover Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Hartford-Davis

SOLICITOR FOR THE RESPONDENT:

Broun Abrahams Burreket

Orders

It is declared that the de facto relationship between Ms Mullan and Mr Worrell ended in May 2009.

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 Mullan & Worrell 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: SYC 3653 of 2015

Ms Mullan

Applicant

And

Mr Worrell

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

The husband and wife commenced a de facto relationship in 1983 and had two children.
The wife has applied for a property settlement order under Part VIIIAB of the Family Law Act 1975 (Cth) (“the Act”). There is no jurisdiction for an application to be brought under that Part if a de facto relationship broke down before 1 March 2009 (“the relevant date”), unless the parties consent which they do not do in this case. The husband says the wife is unable to establish that the de facto relationship broke down after (and not before) the relevant date and consequently the husband says the court has no jurisdiction to hear this case.
Ironically, the husband was not of the belief that the de facto relationship was over at the relevant date but relies upon what he says was a unilateral intention formed by the wife and communicated to him before the relevant date and her actions prior to the relevant date.
The court is asked to make a declaration as to the date the relationship ended.

SHORT HISTORY

The husband was born in 1942.
The wife was born in 1960.
The parties began living together in each other’s apartments in 1983.
The matrimonial home at B Street, Suburb C (“the Suburb C property”) was purchased in the husband’s sole name in 1984 or 1985 and the parties began living together in that home in late 1984 or 1986.
The parties’ first child was born in 1989.
The parties’ second child was born in 1991.
In February 1993 the husband’s daughter from a previous marriage commenced living with the parties. She moved out later that year.
In 1996 the husband’s son from a previous marriage commenced living with the parties for a period of 18 months.
The parties discussed marriage in 2000 or 2001 but did not marry.
From 2003 the husband’s niece’s daughter resided with the parties for 18 months.
In 2004 the wife began to sleep in a separate bedroom because of the husband’s chronic snoring.
In 2006 the parties’ sexual relationship ended.
In 2007 the husband cancelled the wife’s supplementary credit card.
In December 2008 the husband ceased paying housekeeping money to the wife but continued to financially support the household.
On 8 May 2009 the husband acknowledged the relationship had come to an end and on 25 May 2009 the husband proposed that living costs be shared whilst the parties continued to reside under the same roof until the Suburb C property was sold.
In June 2009 the wife’s lawyer wrote a letter to the husband indicating that the relationship had ended on a final basis in May 2009 and that financial matters needed to be resolved. The husband wrote a letter in reply saying that the relationship had terminated before June 2007.
In April 2010 the sale of the Suburb C property was completed.

CREDIT

I had some difficulty with some of the evidence given by both the husband and the wife.
The wife had a poor recollection of conversations she had with her doctor in 2007 and 2008 and of legal advice she received in 2008. The wife said she did not recall whether she had seen lawyers in 2008 about the deterioration of the relationship; that she first sought legal advice in February 2009 and it was not in regard to the parties’ relationship, rather it concerned placing a caveat on the Suburb C property. The wife’s doctor’s note of 6 March 2008 establishes the wife had seen a lawyer in early 2008. The wife’s oral evidence about the subject of legal advice in February 2009 is not consistent with [160] of the wife’s affidavit filed 9 June 2015.
The husband’s credit is compromised by the fact he did not have a very good memory of some of the things he actually had done. The husband had a poor recollection of family and social events he attended with the wife in 2008 and 2009. The husband made concessions when presented with photographs and other objective evidence that he had forgotten that he had been involved in social activities with the wife. The husband did not remember the dates when he took the wife’s motor vehicle or when his company, D Pty Ltd (“D Pty Ltd”), ceased making payments for the wife’s mobile phone.
In his affidavit the husband said he did not recall the wife being at Mr E’s 75th birthday in June 2008 (let alone dancing with the wife) even though the witness called by the husband remembered that the wife was at the party.
The husband agreed that when he said in his affidavit that he didn’t go to any lunches in 2009 he may have forgotten going.
Statements made by each of the parties, which offer views as to when their de facto relationship ended, have little probative value.
Where the evidence of the parties is in conflict, I shall make findings, if I’m able, based upon objective evidence, contemporaneous emails, or on what version is more inherently likely.

THE LAW

What does “breakdown” or “ended” mean?

The relevant events took place in New South Wales. Section 4 of the Commonwealth Powers (De Facto Relationships) Act 2003 (NSW) referred State power to the Commonwealth to legislate about “financial matters relating to de facto partners arising out of the breakdown (other than by reason of death) of de facto relationships” (emphasis added). Part VIIIAB and other consequential sections of the Act is that legislation.
The Family Law Amendment (De Facto Financial Matters and other Measures) Act 2008 (Cth) (“the Amendment Act”) inserted Part VIIIAB into the Act. Section 86(1) of the Amendment Act provides that Part VIIIAB of the Act does not apply “in relation to a de facto relationship that broke down before commencement” (emphasis added). The commencement date is 1 March 2009.
Subsection 90RD(2)(d) of the Act gives the court power to declare “when a de facto relationship ended” (emphasis added). Subsection 44(5) of the Act sets a limitation period for making an application “within the period of 2 years after the end of the de facto relationship” (emphasis added).
The normal presumption of statutory construction when two different but synonymous words are used in the one Act is to construe them as conveying different meanings. The presumption of consistent use of a word is not of “very much weight” (per Gibbs J in Clyne v Deputy Commissioner of Taxation (1981) 150 CLR 1, 10; Murphy v Farmer (1988) 165 CLR 19, 27).
Whilst s86 of the Amendment Act uses the words “broke down” and ss 90RD(2)(d) and ss 44(5) of the Act uses the word “ended”, there is no distinction to be drawn between those two words as used in those sections because “broke down” imports the notion of final or irretrievable breakdown. No application could be successfully made for a de facto property settlement order under s90SM of the Act if the parties’ relationship had “broken down” but had then revived as a result of a continuing reconciliation. The question is: when did the de facto relationship finally break down or end? (see Fenton & Marvel (2013) FLC 93-550).
In Cadman & Hallett [2013] FamCA 819 Rees J said at [134]:
Thus the authorities establish that in order to establish that a relationship has “broken down” for the purposes of the legislation, it is necessary that one party forms an intention to end the relationship, that the party acts upon the intention and that the intention is communicated to the other party.
This statement was referred to by the Full Court in Cadman & Hallett (2014) FLC 93-603 at 79,474. The Full Court noted that the principles to be applied were not challenged on appeal (at 79,475).
To slightly reframe what Rees J said, a de facto relationship breaks down or ends when two things happen:
35.1.Firstly, EITHER there is agreement and mutual recognition by the spouses that the de facto relationship has ended OR one spouse unilaterally forms the intention to end the relationship and communicates that intention, by words or actions, to the other spouse; AND
35.2.Secondly, EITHER both spouses act or one spouse acts upon that agreement or mutual recognition OR one spouse acts upon the unilateral intention which they have formed to end the relationship which they have communicated to the other spouse.
In Morris v Morris (1972-73) ALR 893 Nettlefold J said:
25. When it is alleged that the parties separated on or about a certain date it is necessary, in some cases, to determine and contrast the state of things existing before and after that date respectively. If, at that time, one or both of the parties formed an intention to abandon the matrimonial relationship, the parties may be said to have separated at that time, provided that intention is carried into effect sufficiently to enable the Court to affirm that, on or about that time, there was an actual separation as distinct from a mere unfulfilled intent to separate.
In Vaughan & Vaughan (1990) FLC 92-135 Kay J, when considering whether or not there had been a separation on a date which would attract the operation of the newly introduced Child Support (Assessment) Act 1989 (Cth), colourfully emphasised that it is not sufficient for a party to have formed and announced an intention to separate. The party also has to act upon that announced intention:
…It is one thing to announce to the world an intention to do an act, and to take the necessary preparatory steps to doing that act, and it is another thing to have done the act.
Thus if I announce to the world that I intend to travel to New Zealand at Easter time — I book my passage, I clear my judicial calendar, I make arrangements to put the dog in a kennel — at the time between announcing the intention and the actual travel, it could not be said that I have travelled to New Zealand, merely that I have an intention to travel and once having got on the plane it can be said that I have travelled…
The most usual action taken by de facto spouses or by one spouse to end a de facto relationship is a physical separation.
To judge whether spouses who have remained under the one roof at the relevant date have ended their relationship and have separated under the one roof, it is important to examine the circumstances of a particular relationship. The question is what elements of the lives of the parties, which make up the essence of the de facto relationship, has changed as a consequence of the agreement and mutual recognition the relationship has ceased or as a consequence of the unilateral intention to end the relationship formed by one spouse and communicated to the other.
In the context of marriage, the concept of separation under the one roof was applied strictly by the English Court of Appeal in Hopes v Hopes [1949] P 227. Denning LJ said:
The husband who shuts himself up in one or two rooms of his house, and ceases to have anything to do with his wife, is living separately and apart from her as effectively as if they were separated by the outer door of a flat. They may meet on the stairs or in the passageway, but so they might if they each had separate flats in one building … He has forsaken and abandoned his wife as effectively as if he had gone into lodgings … the point where the parties are living separately and apart … is reached when they ceased to be one household and become two households…
In Australia the strict “two households” test was not applied. In Morris (supra) Nettlefold J said:
…to do that, is to immediately escape from the essential task. It is not a question as to whether there was one household or two households; rather it is a question as to whether there was a real sharing of a common life (see Potter v Potter (90 CLR) at 402) and, presumably, answering that question involves the task of distinguishing the essential from the accidental. If all the essential qualities of a common life are gone, the parties can be said to have separated. And that can be asserted, and asserted accurately, notwithstanding that difficulties in respect of accommodation, or financial difficulties, leave them closer together in space than they would be if those difficulties did not exist.
Section 49(2) of the Act further relaxed the test allowing some household services to be provided by one party to the other. The Full Court in Falk & Falk (1977) FLC 90-247 said:
The problem is to determine in cases of this sort when it may properly be said that the parties have in fact separated in the required sense. There are frequently those sorts of marriage which have with the passage of time and the personalities of the parties lost a great deal of their essence so that there is very little left in the marriage and it is continuing more as a matter of habit in a rather nebulous relationship, each having fairly minimal warm contact with the other married partner but continuing on as a marriage nevertheless. At the other end of the scale there are those cases where, notwithstanding that the parties are in the same premises, they treat each other completely as strangers and have no contact with each other at all. There is no doubt that they have separated from each other.
The problem that arises is where to draw the line between those two types of case or by what test one is to determine into which category a particular case falls … What the pre-existing state of cohabitation was and when it has ceased are matters of fact and degree which will depend on the particular circumstances of each case. In determining this, one looks primarily to the objective facts of the relationship during the relevant period.
In Pavey & Pavey (1976) FLC 90-051, the Full Court said about the onus of a party wishing to prove a separation under the one roof:
… In such cases, without a full explanation of the circumstances, there is an inherent unlikelihood that the marriage has broken down, for the common residence suggests continuing cohabitation. Such cases therefor require evidence that goes beyond inexact proofs, indefinite testimony and indirect inferences. The party or parties alleging separation must satisfy the Court about this by explaining why the parties continued to live under the one roof, and by showing that there has been a change in their relationship, gradual or sudden, constituting a separation. For this reason many of the Judges of the Family Court of Australia have adopted the practice of requiring corroboration of the applicant's evidence in cases where the parties reside in the same residence. We do not wish to lay down an inflexible rule that evidence from a witness other than the parties to a marriage must be given, but an applicant should always be ready to call such evidence. Whether the Judge will require such evidence will depend on the circumstances of each case.
It needs to be borne in mind that the Full Court in Pavey were talking about an applicant for divorce satisfying the onus that a separation has occurred whereas in this case the onus is on the wife to prove that a breakdown had not occurred at the relevant date. Nonetheless, the warnings about inexact proofs, indefinite testimony and indirect inferences are apposite when considering whether or not an agreed existing de facto relationship has ended by way of separation under the one roof.
Watson J in Todd & Todd (No 2) (1976) FLC 90-008 at 75,079 stated “What comprises the marital relationship for each couple will vary” (see also Murphy J in Onslow & Onslow [2016] FamCAFC 7 (quoted below)). An element of the relationship which the spouses themselves have treated as having little significance during the relationship may equally be of little weight when considering whether the relationship has ended.
The Full Court in Sinclair & Whittaker (2013) FLC 93-551, a case about whether a de facto relationship existed, quoted the following passage with approval:
55. In Lynam v Director-General of Social Security (1983) 52 ALR 128 at 131 said:
Each element of a relationship draws its colour and its significance from the other elements, some of which may point at one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will most 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 meet the statutory test.
There is a difference between deciding whether a de facto relationship has broken down or ended and deciding whether a de facto relationship existed in the first place. In Onslow (supra) at [97] Murphy J said:
The question of whether an admitted pre-existing de facto relationship broke down finally after 1 March 2009 is a question answered by elements different to those applicable to deciding if the relationship has ever existed. In the latter, an essentially objective analysis is applied to the circumstances established by evidence (which may be informed by reference to the essentially objective circumstances listed in s 4AA(2)). In the former, the circumstances that might inform objectively a decision about the existence of a relationship are replaced, or at least augmented, by the subjective circumstances of that particular relationship which is admitted to have existed as the defined type. Put another way, the question is not whether a de facto relationship was in existence at the relevant time or times; the question is whether this particular relationship continued to exist at that time or times.

The wife has the onus of establishing jurisdiction on the balance of probabilities (Jonah & White (2011) Fam LR 460; Owens & Benson (2014) FamCAFC 243). This means the wife has to prove a negative, namely that a longstanding de facto relationship had not ended at the relevant date.
I now turn to look at the particular history of this relationship.

CHRONOLOGY

Given the issue to be determined, there was no testing of much of the details of the history of the parties’ financial relationship. Most of that history is not controversial. I note where there seems to be controversy in the written evidence of each of the parties.
The husband was born in 1942.
The wife was born in 1960.
The husband has two children from a previous marriage, Ms F (“Ms F”) born in 1975 and Mr G (“Mr G”) born in 1978.
In 1969 the husband commenced working for D Pty Ltd. He worked there until November 2010 when he was forced out of the company.
In 1972 the husband and his business partner Mr H took an interest in D Pty Ltd. Their agreement was that Mr H have a 70 per cent interest and the husband have a 30 per cent interest.
In 1983 the parties met and commenced a relationship. The husband was 41 and the wife was 23. After the parties met they spent almost every evening together at one of their respective apartments. The husband’s children would also reside with the parties at the husband’s apartment every second weekend and during the school holidays at which times the wife would help to care for them.
In 1984 or 1985 the husband purchased the Suburb C property. The husband then renovated the property. The wife says that in late 1984 once the renovations were complete she and the husband lived together in the Suburb C property. The husband says that it was not until 1986 that the parties moved in together.
Once the parties commenced cohabiting, the wife says that the financial arrangements between them were that the husband paid for the household expenses including all bills and utilities and the wife paid for food items and groceries as well as lifestyle expenses such as meals at restaurants and other social activities. The wife says that she was never involved with the finances of the husband’s business, apart from receiving income as a beneficiary of the family trust. This was an income-splitting arrangement where his salary from D Pty Ltd Group Unit Trust was reduced by the amount paid to the wife directly from D Pty Ltd. As discussed below, when the business experienced financial difficulties, the wife says she contributed her personal exertion income towards the business. The wife says that the parties never had a joint bank account and the husband kept his finances separate from her.
The husband says that when the parties commenced cohabiting the wife did not pay any rent or contribute to the mortgage. He says that there was no “strict arrangement … as to how finances would be split.” He says that the wife would buy food for the house but the husband also bought food for the house and usually paid for dinner when they went out. He says that the wife certainly did not pay for all of the parties’ lifestyle expenses.
In around 1989 the husband says that he purchased a 4WD car for the wife. Throughout their relationship, the husband says that he purchased four cars for the wife.
In 1989 the parties’ first child, Ms I (“Ms I”), was born. Due to a blood condition during the pregnancy, the wife had to attend numerous specialist care appointments which she says she predominantly attended on her own. As Ms I was born premature, over New Year’s Eve, the hospital set up a two night stay in a special unit for parents with premature babies. The wife says that the husband chose not to attend and celebrated with his friends instead, leaving the wife on her own.
After Ms I’s birth, the wife left her paid employment at Company J (where she had been working full time since 1986) and cared for Ms I on a full time basis. The wife carried out all of the household duties apart from hiring a woman who came to the Suburb C property once a fortnight to iron the husband’s business shirts and assist with cleaning. The wife also recalls supporting the husband in his business by arranging and attending industry events and annual functions and arranging Christmas gifts for clients and staff.
From 1989, after Ms I’s birth, the husband commenced paying the wife $400 per week for housekeeping expenses including food, fuel, household amenities, pharmaceutical expenses and the wife’s personal requirements. The wife had access to a supplementary credit card linked to the husband’s account which she used throughout the parties’ relationship for items which were over and above the ordinary household expenses including the children’s clothing, school uniforms, family birthday gifts, Christmas gifts and after school activities, specialist appointments.
In 1989 the wife recalls saying to the husband that she would assist in paying for the children’s school fees. She says that the husband later reminded her on numerous occasions of what she had said. However, the wife says that she did not pay the fees directly herself as she felt she was contributing in so many other areas as much as she could.
In 1991 the parties’ second child, Mr K (“Mr K”), was born.
In 1992 the wife commenced working part time from home. She was paid in cash and applied the money towards household expenses.
From January 1992 to 1996 Ms I commenced attending preschool initially three days a week and then five days a week. In 1995 Mr K commenced preschool which graduated to three days a week. The wife says that throughout the parties’ relationship the husband provided little assistance in caring for the children and he often worked very long hours leaving her alone with the children for long periods of time. The husband disputes this. The wife says that her family were a major support network for the parties particularly when the children were young.
In 1993 the wife commenced working three days per week in hospitality. At this time, she hired a student to care for Mr K and collect Ms I from preschool in her absence. The wife paid the student out of her wages.
In February 1993 the husband’s eldest daughter, Ms F, then aged 18, commenced living with the parties. The wife continued to undertake all of the household duties including grocery shopping and cooking and care for Ms F. Ms F did not domestically assist in any way which the wife says became an issue between the parties. Ms F moved out later that year.
In late 1993 further renovations were carried out on the Suburb C property to create a fourth bedroom. The husband borrowed money and restructured his finances in order to finance the renovations.
In 1995 the wife returned to work three days a week at Company J. From this time, she employed and paid for a nanny to care for the children in her absence. The wife says that she also contributed to household groceries and household items and purchased items for herself.
In 1996, while the mother travelled to Atlanta for the 1996 Olympic Games for her employer, Company J, her father and step-mother moved into the Suburb C property to care for the children. The wife says her employer extended an invitation to the husband for him to attend but he declined.
In 1996 the husband’s eldest son, Mr G, then aged 18, commenced living with the parties. He lived with them for 18 months and did not pay rent. The wife says that she cooked, cleaned and washed for him and that the parties provided him with a car and assisted with his college costs.
When Mr K was five years of age he was diagnosed with Attention Deficit Hyperactive Disorder (“ADHD”). The wife says that because the husband did not believe in this diagnosis or support its treatment, she organised, researched and attended all of Mr K’s treatment (except for one appointment). The problems arising out of his diagnosis also required the mother to attend meetings with Mr K’s teachers and assist him with additional homework.
During 1999 and 2000 the husband entered into a real estate business deal. The husband funded the development of land but there were problems with the split of sale profits and the husband could not meet the bank’s demands for repayments. The wife paid money earned by her from Company J into a L Nominees account (of which the husband is the sole director and shareholder) to assist in making the repayments. At around this time, the husband also received a loan from good friends of the wife.
In 1999/2000 D Pty Ltd experienced financial difficulties resulting in a reduction in the husband’s salary. The husband’s relationship with his business partner also deteriorated around this time. He says that he tried to explain to the wife that they were spending too much money and to cut down her spending which did not happen and money became a source of tension between them.
In 2000 the wife employed a nanny to care for the children after school until she finished work. On nearly all occasions she says that she paid for the nanny except for the odd occasion when she worked late and the husband would pay the nanny before she left. The nanny was paid approximately $350 per week.
Leading up to the Sydney Olympic Games in 2000, the wife was working full time. She worked long hours and L Nominees, the husband’s company, continued to receive monies from Company J for work performed by the wife during this period. On completion of the Games the wife received a $5,000 bonus. This money was paid into the L Nominees account which was controlled by the husband.
In 2000, after the conclusion of the Sydney Olympic Games, the wife was diagnosed with Chronic Fatigue Syndrome. She took approximately 18 months off work to recover. During this period, she continued to carry out all of the household tasks including cooking, cleaning and caring for the children. The husband continued to work long hours during this period and was frequently absent from home during the evening. The parties’ children were 11 and nine at this time.
In 2000 or 2001 the parties discussed getting married however, nothing eventuated. The husband says that the parties had an argument about it in 2002 after the wife had not taken any steps to plan the wedding. He says that he sees this moment as the start of the really serious decline in the parties’ relationship. He says that the parties “good times” of living together as a “happy and committed couple” lasted until about 2000/2001 when things started to go wrong. He also attributes the decline of their relationship to when D Pty Ltd started to have financial problems (this was in 1999/2000).
In 2001 the husband increased the wife’s weekly housekeeping payment to $600 per week.
The husband says that another source of tension between the parties was his suspicions of the wife’s infidelity and questions about her commitment to the relationship. For example, in 2002 at the D Pty Ltd Christmas party the husband went home but the wife stayed out with the husband’s friend and didn’t get home until 4.30am. He says this was the first time that the wife went out socially without him causing him to feel hurt and jealous, feelings which he believes were a factor in the deterioration of their relationship.
In 2003 the husband’s niece’s daughter, Ms M, lived with the parties during the week when she attended school and went home on the weekends. The wife assisted Ms M with her school work, cooked and laundered for her. Ms M lived with the parties for approximately 18 months.
In 2003 the wife established a business called Company N using the garage of the Suburb C property as a workshop. The husband assisted her with the set up costs of the business with a loan of $1,000. She initially worked part time in order to continue managing the children and the household. The wife says that she used the parties’ credit card to purchase materials but would repay any charges relating to Company N at the end of each month. When she could not repay the entire amount she ran a loan account spreadsheet and made larger repayments when she could. The wife paid any profits from Company N towards household expenses, the children’s or her personal expenses. On a number of occasions, if she had larger jobs and received bigger payments these would be put through the L Nominees account. The husband says that the wife established Company N in response to the financial pressure they were under at the time. He says he also paid for the wife’s phone bill which was operated through D Pty Ltd. The husband says that the wife would keep any profits made from the business and that this became a source of tension between them.
The husband says that from June 2003 to August 2004 the parties did not have any sexual or physical intimacy.
The husband says the period between 2004 and 2006 was a “challenging time financially”. He states at [34] of his affidavit:
More and more, [the wife] began to socialise without me – she would go on long lunches with her girlfriends and I felt increasingly excluded from her social life. We always approached our parenting responsibilities jointly, and we always went to family functions together. We were still financially co-dependent, in that [the wife] had access to my credit cards, drove cars that I paid for, and she was receiving the weekly house-keeping money. There were also good times during this period, although I feel that they became increasingly rare.
In 2004 the wife moved into a spare bedroom due to the husband’s chronic snoring. The husband says that after this time the parties did not share a bedroom when they went away on holidays causing him to feel rejected by the wife.
In 2004 the husband says that he spent two nights and three days at O Hospital after the wife threw a kitchen knife at him hitting his knee requiring an operation. He did not report the incident. The husband says this was an isolated incident but opines that the incident indicated that the parties had a poor relationship at that time. The wife did not file any evidence in reply in relation to this incident nor was it the subject of any oral evidence.
In February 2005 the parties hosted Ms F’s 30^th birthday party at their home. The wife organised the birthday cake, prepared the house and back garden area and assisted with the food on the night.
In April 2005, following an incident where he hit his head on a steal beam, the husband was admitted to hospital and underwent an operation on his brain to stop the bleeding. The wife visited the husband daily during his stay in hospital and accompanied him to his specialist appointments as he was unable to drive. She says that after this incident the husband’s behaviour changed and he became very short tempered.
In 2006 the parties’ sexual relationship ended. The husband says at [35] of his affidavit:
I recall feeling, in the latter half of 2006, that [the wife] had decided that the relationship was over. This feeling was based on a number of facts: our sex life completely stopped and she avoided physical contact with me, and (other than school and family events) she was socializing without me and not attending social events with my friends. For my part, I was for the most part determined to try to salvage the relationship.
The husband does not recall the parties’ relationship improving over the course of 2006 and 2007.
I do not accept the husband’s evidence that the wife had decided the relationship was over in the latter half of 2006. In an email he wrote on 6 January 2009 he recalls some cards the wife gave him in 2006 and 2007 which the wife signed “with lots of love”.
From 2007 the wife’s friend, Ms P, (“Ms P”), shared the wife’s workshop space in the Suburb C property. The husband agreed to the arrangement. Ms P was not charged rent for her use of the workshop. Ms P was not called to give evidence.
Sometime in 2007 the wife says she recalls attending a business meeting with the husband relating to a business venture with a company called Company Q. The wife was not happy with the husband becoming involved with the proposed business venture and begged him not to become involved in Company Q. The wife later learnt that their proposed business deal did go ahead and she understands that a lease agreement was entered into with Australand in April 2008.
In May 2007 the wife’s father died. The husband observed that his death had “obviously taken its effect” on the wife.
In 2007 the husband cancelled the wife’s access to his credit cards. The husband makes the bald assertion that this was due to how much the wife was spending on her social life and her personal expenses from which he was excluded; her business from which he derived no benefit in circumstances where he says their relationship had become dysfunctional. He also says that he did this because the wife was spending more money than he could afford and when he attempted to communicate this with her it would end in a shouting match. The wife realised that her credit card had been cancelled when she went to pay for a specialist appointment for Mr R and that payment was declined. From that point onwards, the wife says that she would have to call the husband for authority to use the credit card before she wanted to use it.
In 2007 the wife changed accountants. Previously, the husband’s accountant had prepared the parties’ personal and business tax returns. From this time, the husband says that the wife conducted her financial affairs separately although he continued to pay for the joint household expenses.
In September 2007 the wife, as she was not earning enough from her business to support herself and assist with the running of the household, commenced a second job working three days per week. These earnings went to purchase groceries for the household and personal items for herself.
On 22 November 2007 the wife attended upon Dr S. The following was noted in the surgery consultation notes (Exhibit 2):
Relationship breaking up … Arguing, fighting with partner. 2 ½ years ago – operation for cerebral haemorrhage and never been the same. Rel’p was breaking down before that … withdrawn from sex last 2 ½ years. In separate rooms – at first chronic snoring – last 18 months has had a CPAP. He’s very critical, nothing is right, financial arguments. He has his own business. [The husband] is 19 years older … Fearful of a messy separation. He has been vindictive last 6 months. he (sic) not remember it. constantly (sic) need sher (sic) to remember things. Fears he would be scathing. She cannot cope with that.
In her oral evidence, the wife did not recall telling Dr S on 22 November 2007 that she was fearful of a messy separation and denied that she was contemplating separation at that time.
On 6 December 2007 the wife attended upon Dr S. The following was recorded in the surgery consultation notes (Exhibit 2): “Financial abuse. Taking her credit cards away. Very controlling.” Under the heading “Management” is written “get legal advice.”
From 2008 the husband says that the parties “barely spoke to each other around the house.”
The husband, at [56] of his affidavit, says that at some point in 2008 he decided to move out of the Suburb C property and informed the wife that he would do so. He informed the children of his decision but they got so upset that he decided to stay. The husband mentioned an event like this in his email of 21 August 2007. So it is likely that the date the husband gives is incorrect as the husband does not suggest this happened twice.
In January 2008 the wife commenced counselling with Dr S as she was not coping with the financial and emotional strain she was under. She paid for the counselling sessions and medication for anxiety/depression.
On 31 January 2008 the wife attended upon Dr S. The following was recorded in the surgery consultation notes (Exhibit 2):
Feeling shattered. Verbal fighting. [The husband] has phoned her sister and now fels (sic) less support from her. [The husband] says she has no sex, she’s dry, accused her of having affairs, threatened to stop housekeeping money, objects to her business partner being in studio after 5pm. No affection between them. Verbal abuse stops her affection. Refuses counselling – she wants separation but he wants continuing rel’p … She’s shut down emotionally. Feels alienated in household.
Under the heading “Management” the doctor has written “legal advice”.
The wife says that on 31 January 2008 Dr S did not advise her to obtain legal advice about the relationship which is inconsistent with the doctor’s note under “Management”.

On 6 March 2008 the wife attended upon Dr S. The following was recorded in the surgery consultation notes (Exhibit 2):
Got herself her own accountant. Lawyers also confirmed that finances complicated and she needs more information … Separate bedroom from [the husband] (4 years) – snoring now has a CPAP machine but too late for her.
The wife agreed in her oral evidence that she had discussed her finances and the husband with Dr S and that Dr S had advised that she needed to obtain good legal advice. However, the wife said that this did not mean that she had been told by lawyers that finances had complicated the situation. The wife could not recall speaking to Dr S about legal advice. This note in the doctor’s record would indicate that the wife told the doctor she saw a lawyer between 31 January 2008 and 6 March 2008.
On 18 April 2008 the wife attended upon Dr S. The following was recorded in the surgery consultation notes (Exhibit 2): “Obvious husb is separating. Wants her to pay for the tyres.” Under the heading “Management” the doctor writes “get good legal advice.”
In mid-2008 Ms P moved into the Suburb C property with the parties. She initially occupied Ms I’s bedroom when she was overseas but when Ms I returned in February 2009 Ms P moved into the separate living room. In May/June 2009 the wife says that Ms I moved out of the Suburb C property and Ms P took up more permanent residence but says she was not always living there as she would housesit or renovate properties for friends. Ms P did not pay rent but contributed on many occasions to the household expenses and the preparation of meals. The husband says that from the time Ms P commenced living with the parties the parties’ relationship further deteriorated as he felt excluded and isolated in the house.
In mid-2008 the husband cancelled a booking for a holiday house he rented at Suburb T from December 2008 to January 2009 due to the difficulties that the parties were experiencing.
On 6 June 2008 the wife attended upon Dr S. The following was recorded in the surgery consultation notes (Exhibit 2): “De facto for 25 years so legally less rights. Adviswed (sic) to stay until [Mr K] has finished school. Really financial abuse and not let it get to her.” In her oral evidence the wife disagreed that she had discussed with her doctor the legal advice she had received about her legal rights and the termination of the relationship. The wife also denied telling Dr S that she had been advised to stay until Mr K finished school. The note is ambiguous as to who was saying what to whom. It may be the wife’s doctor advised her that she should stay in the home until Mr K finished school. The last sentence of the note gives some weight to that interpretation.
On 25 June 2008 the wife attended upon Dr S. The following was recorded in the surgery consultation notes (Exhibit 2): “He wants her out of bedroom. He has threatened to see (sic) me. he (sic) has rages. And then carries on as if nothing has happened. Claims she cannot dictate what he says to her.”
In July 2008 Ms F got married. The wife was invited to and attended the wedding.
In August 2008 the wife attended the Company Q launch party to support the husband. However, the husband says that she did not speak to him rather she spent the night talking to others.
On 17 October 2008 the wife attended upon Dr S. The following was recorded in the surgery consultation notes (Exhibit 2): “partner has verbal anger, and using money as a method of hurting.”
In December 2008 the husband ceased making housekeeping payments to the wife. He says that he did so because he felt the wife was spending the money on herself rather than on household expenses. He says at this time the parties were “financially independent” and were “effectively living in a sharehouse”. After the husband ceased making the payments to the wife, the wife would make a list of grocery items that were required for the home and the husband subsequently took over the task of purchasing groceries. At this time, the wife says that the financial arrangements between the parties were on a “different footing”.
Throughout 2009 the wife continued to run Company N and when she received larger payments from her clients she would deposit the money into the L Nominees Account. During this year, the wife commenced working three days a week in retail to support herself and the general running of the house. However, the wife eventually closed Company N down.
In January 2009 the parties celebrated the husband’s birthday at Suburb U.
In February 2009 the family went out to celebrate Mr G’s birthday. The wife told the husband that she could not contribute to dinner or a present as she didn’t have any money. She says the husband told her that they could “work something out”. On their way home, the wife says that the husband had an outburst directed towards Mr K which she says were occurring more frequently in front of the children which “pained [her] dreadfully.”
In February 2009 the wife sought legal advice from V Lawyers. She was advised that she needed to file her application for division of property and/or maintenance within two years of the termination of the relationship.
In March 2009 (after the relevant date) the husband arranged for a real estate agent (the husband says the person was a valuer) to attend the Suburb C property and undertake an assessment of its value. The wife did not know that this had been arranged until she came home and saw the agent. The husband did not tell the wife he was intending to sell the home.
In May 2009 the parties had a conversation in relation to selling the Suburb C property. About two weeks after this conversation, the wife says that the husband handed her a life insurance policy to sign which she did not do. He also told the wife that he was “cashing in [his] superannuation.”
In May 2009 the husband ceased paying for wife’s mobile phone without informing her. Previously, the payments had been made by D Pty Ltd.
In May 2009 the wife commenced working full time as a retail manager in Suburb W. Two days prior to commencing the job, the car that she had been driving disappeared. The husband told the wife that he was selling the car and she needed to catch the bus. The wife subsequently repaired an unregistered car that had been purchased by Mr K and paid for the registration and insurance. The wife says that she later discovered that her car was stored at D Pty Ltd offices.
In May 2009 the wife came home to the Suburb C property and realised her computer had been accessed and previous emails she had received from the husband had been deleted as well as a document folder containing her personal notes including her invoicing work carried out at Company J under L Nominees. She says from this time she formed the view that the parties’ relationship was “unsalvageable”. In oral evidence, the husband conceded that he had accessed the wife’s computer but he claims he did not delete anything.
On 17 May 2009 the wife says that the parties had an argument resulting in her slapping the husband across the face and that the husband then struck her and pushed her onto the floor causing her to injure her coccyx. The husband denies ever striking the wife.
On 25 May 2009 the husband sent the wife an email proposing that living costs be shared whilst the parties continued to reside under the same roof until the Suburb C property was sold.
In June 2009, after the wife became aware that the husband intended to sell the Suburb C property, she sought further advice from V Lawyers. In October 2009 the wife’s lawyers lodged a caveat over the Suburb C property. The caveat asserted that the wife had an equitable interest in the Suburb C property by virtue of a constructive or resulting trust as a result of financial and non-financial contributions made by the wife to the Suburb C property during the period of the relationship between the husband and the wife. The husband subsequently took action to have the caveat removed by filing and serving a lapsing notice.
On 1 June 2009 the wife says that the husband provided her with a list of outgoings and expenses and asked her to pay half. The wife says she told the husband that she was not in a position to do so based on her salary.
On 19 July 2009 the wife came home to the Suburb C property to find that her belongings had been removed from the master bedroom. She says that the husband had also been through her personal papers and had accessed her phone. She says that the husband told her that if she did not move out of the house he would change the locks. The wife informed him that she would not be moving out.
On 25 July 2009 the wife says that she arrived at the Suburb C property and the husband came out of the front of the house and began “ranting and raving and accusing” her of having an affair. He threatened to dump all of her belongings onto the street.
In late July 2009 the wife says that the husband told her repeatedly to move out of the Suburb C property.
In September 2009 the wife discovered that the husband had taken out a mortgage over the Suburb C property because of the state of financial affairs with Company Q.
In September/October 2009 the parties had a number of conversations in relation to the sale of the Suburb C property. In one such conversation, the wife told the husband that the parties should be able to hold things together for a few more months until Mr K completed his HSC. The wife was under the impression that the husband was having financial difficulties due to Company Q and that was the reason they needed to sell the house.
In October/November 2009 the wife discovered that Mr K’s school fees were behind and that they owed Term 2 fees. She raised this with the husband who informed her that he would no longer be paying any school fees. Ms P lent the wife the money. The wife also found out that the husband had supported Mr K’s decision to quit school. The wife attended Mr K’s school and had Mr K’s position reinstated.
In November 2009 the wife discovered photographs of a woman amongst the husband’s files. The husband denied having any contact with the woman. The wife later learned that the woman was Ms X, who later became the husband’s partner.
On 27 November 2009 the wife attended upon Dr S. The following was recorded in the surgery consultation notes (Exhibit 2): “Legal proceedings with husband. Will move out next year. Gets anxious before entering her place. [The husband] checks where she is. He’s having affairs.”
For Christmas 2009 the wife invited the husband to attend her sister’s house in Y Town (as they would normally do before continuing on to Suburb T to visit the husband’s family) so as not to exclude him. The husband only stayed for a couple of days before continuing on to Suburb T. The husband did not take the children to Suburb T with him and the wife subsequently learnt that he had taken Ms X.
In February 2010 the Suburb C property was listed for auction and it subsequently sold on 16 March 2010. The wife was not involved in the sale negotiations. It was not until after the sale of the house was completed that the husband made available to the wife a letter from the solicitor acting for him on the sale detailing the disbursement of the sale proceeds. There were no net proceeds of sale after payment of liabilities.
The parties continued to reside in the Suburb C property until April 2010 when the sale settled.
It is my understanding that the husband is involved in litigation relating to the husband’s business interests with Mr H.

DISCUSSION

Subsections 4AA(1)-(4) of the Act set out the objective provisions for working out if persons have a relationship as a de facto couple as follows:
(1) A person is in a de facto relationship with another person if:
…
(c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
…
(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.
Using the relevant date of 1 March 2009 as a focus, I consider the subjective circumstances of this particular relationship by reference to the subsections of 4AA(2) seriatim.

(a) the duration of the relationship

The parties had a long de facto relationship but that is not relevant to when it ended.

(b) the nature and extent of their common residence

The parties lived in a common residence from 1984 to 2010.The nature and extent of the parties’ common residence changed in 2004 when the wife moved into a separate bedroom as a result of the husband’s chronic snoring. Those sleeping arrangements continued unchanged until the matrimonial home was sold in 2010. The husband refers, in an email dated 7 July 2008, to the repairing of a bed in another room so the wife could sleep there. I do not accept that any great weight should be placed on the fact the parties slept in separate bedrooms from 2004 given I find that was a move so the wife could obtain a better night’s sleep, to which the husband was at least acquiescent.
Whilst living under same roof both before and after the relevant date, the wife continued to cook and clean for the husband and I infer the husband ate meals with the wife and the children.
From about 2007 the wife’s friend Ms P (“Ms P”) frequently attended the matrimonial home and Ms P became a full time member of the household in mid-2008. The wife did not call Ms P as a witness. The husband did not make any submission based upon Jones & Dunkel (1959) 101 CLR 298.

(c) whether a sexual relationship exists

The parties sexual relationship ceased in 2006.
In an email written by the husband to the wife on 20 July 2006 he says:
Your constant rejection whenever I even put myarms (sic) around you indicates to me that you don’t realy (sic) want to have anything physical to do with me. I accept that and dont (sic) like it, but if thats (sic) the way its (sic) got to be so be it. In saying that if we cant (sic) resolve our differences we should look at dissolving the partnership and move on. This is the last thing I would want to happen.
The husband said “so be it” to a lack of sexual relationship in 2006 and that arrangement was still in place as at the relevant date. After 2006 a lack of a sexual relationship was an element of this de facto relationship which the spouses themselves treated as being part of their continuing relationship. Accordingly, a lack of sexual relationship between the parties is of little weight in determining whether or not their de facto relationship had ended.

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

There continued to be a degree of financial dependence or interdependence between the parties as at the relevant date. From the commencement of the relationship the husband and the wife at no stage operated a joint bank account. The husband kept all of his finances separate from the wife. The wife did have her own personal bank account. Up until 2007 she had a subsidiary credit card associated with one of the husband’s credit cards.
The husband denied that he’d called the wife a “big spender” but in an email to the wife on 1 August 2006 he told her that “you’ve got to stop spending”. The husband also at that time used as an example to the wife, Jackie Kelly, a minister in the Howard government, who he told the wife “has three jobs”.
In 2007 the husband objected to the level of spending by the wife on his subsidiary credit card and he cancelled her ability to use his card without his prior approval because he was unable to afford repayments on the subsidiary credit card.
The wife changed accountants in 2007. The wife says at that time the husband indicated that he expected her to pay for the invoice of her personal tax return which had been prepared by the husband’s business accountant.
Historically, the financial arrangements between the parties were that the husband worked full time and would pay the household expenses including all bills and utilities. At various times throughout the period of the relationship, the wife held down a variety of employment positions and/or ran her own business and her income was used to support the family generally. The wife paid for food items and groceries and also lifestyle expenses during periods that she was working. After Ms I’s birth in late 1989 the wife was paid “housekeeping” by the husband’s business, D Pty Ltd, initially in the amount of $400 per week but it later increased to $600 per week. From the “housekeeping” payment the wife paid for food, fuel, household amenities, pharmaceutical expenses and for her own personal requirements. Up until 2007 the wife purchased children’s clothing, school uniforms, family birthday gifts, Christmas gifts and the children’s after school activities on the subsidiary credit card.
In December 2008 the husband arbitrarily terminated the regular payment of $600 per week to the wife.
After that time the arrangement between the parties was that the wife would make a list of grocery items that were required and the husband would do the grocery shopping. The wife however says that after an initial argument about the extent of the items purchased, the husband would purchase sufficient groceries for the family. The wife concedes that at this point she had come to the view that their relationship was “failing dismally”. She said she didn’t express that to the husband at the time but as I find below, she did convey that view to the husband in early January 2009.
Throughout 2009 the wife continued to run her own business and when she received larger payments would put those cheques through the husband’s L Nominees account. That interdependence had existed throughout the relationship.
Although there was a change in December 2008 in the way the family finances were managed, the husband continued to expend monies on the maintenance of the household and the wife continued to contribute her income towards the household and to the husband’s business. What happened in December 2008 in relation to the husband ceasing to make payments of housekeeping to the wife is not a weighty consideration. From the time that the husband got into financial difficulty he sought to control the wife’s access to and expenditure of funds from his business. That is evidenced by what he did in relation to the wife’s supplementary credit card in 2007. What happened in December 2008 is a progression in that control by the husband. Nonetheless, both parties continued to contribute financially to the relationship and the household.
Significantly, on 25 May 2009, after the relevant date, the wife received an email from the husband acknowledging the breakdown of their relationship and asking her to cover 50 per cent of all overheads so that they could survive. At that time, the husband provided the wife with a list of outgoings and expenses including bills and utilities for the house and requested that she pay one half of her share. The wife’s salary did not enable her to do so.

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

The parties at no time during their long relationship acquired or owned property jointly, apart from the acquisition of furniture and household chattels together. Whilst there might be some contention as to when the de facto relationship commenced, it is agreed that after the husband purchased and renovated the Suburb C property in his sole name the parties moved into it. The wife says this was in 1984; the husband says it was in 1986. The parties lived in this property until the sale of the property in April 2010.
The wife sought advice about her ability to lodge a caveat on the Suburb C property in February 2009 but it was not until after the relevant date, in October 2009, that the wife placed a caveat on the Suburb C property asserting an equitable interest in it. The husband filed a Notice to Caveator (a lapsing notice) in November 2009 to have the caveat removed.
In March 2009 (after the relevant date) the wife came home to find an agent undertaking a value assessment of the Suburb C property.
Apart from the wife’s move out of the bedroom in 2004, as between the parties, the use of the matrimonial home did not change at all before and after the relevant date until the Suburb C property was sold in April 2010. It is of some relevance that no action was taken to sell the matrimonial home until after the relevant date.

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

As indicated above, the husband says the good times lasted up until about 2000/2001 with a really serious decline in the relationship in 2002 after the parties discussed marriage but did not proceed to arrange it. The husband says there was a slow decline in the degree of mutual commitment to a shared life between 2006 and 2009.
At some time, the husband had decided to end the relationship and move out of the home but he changed his mind. There is some confusion as to whether or not this happened in 2008 or prior to that time. The husband says it happened in 2008 at paragraph [56] of his affidavit. However, the husband’s email to wife of August 2007 would indicate that this event happened at a time earlier than August 2007. There is no suggestion the husband decided to move out of the home more than once. The husband says that when he told the children of his intention they got so upset that he couldn’t bring himself to move out and he decided not to take any action to end the relationship. It is more likely that the husband’s contemporaneous note is correct than his memory eight years later. I find this happened prior to August 2007.
The husband attaches to his affidavit emails which he sent the wife commencing on 20 July 2006. It is difficult to assess how much weight to place on a few emails some of which are written by the husband after an argument between the parties.
In the email of 21 August 2007 the husband said that he felt it would be better if he moved but he would wait until Ms I had finished her Higher School Certificate. In the same email however he urges the wife to get some counselling assistance. I’m unable to conclude that in August 2007 the husband was expressing to the wife that he wished to end the relationship. In an email of October 2007 he urges the wife to seek some advice about possible hormonal imbalance. The husband confirms in an email he wrote to the wife after the relevant date on 24 June 2009 that as at the beginning of 2008 he was working towards saving the relationship.
In an email written by the husband to the wife on 18 May 2008 the husband records the wife making ambivalent statements to him about her commitment to a shared life (“you say we are a partnership but you don’t want to be in a partnership anymore, how are (sic) I meant to read that”). The husband talks about “our communication and relationship problems”. He invites the wife to discuss matters with him but questions why he should continue to financially support her.
The husband comments in his email to the wife on 7 July 2008:
Obviously the money and the credit card thing has played a big part in getting you offside but as I mentioned before I’ve put more than 100% into us, the kids and the house and tried to manage our funds and budget to the best of my ability and yes I’m the first to admit that I’ve pulled some wrong levers and lost on a couple of deals but I can assure you it wasn’t intentional.
In the same email of 7 July 2008 the husband says:
I would love to be able to sort things out between us so we can move forward together. Obviously if you’re decision is still to move on I would have to accept that, but I would like you to give things some consideration.
The husband says that he believes the last sentence of the email is a reference to a statement the wife had made during the argument that they’d had. The husband confirms that that is not what he wanted at that time.
The husband’s email to the wife dated 6 January 2009 contains the sentence “You say its (sic) all over between us”. The husband does not give any evidence of this conversation. The husband goes on in the email to question whether that is what the wife really wants and he tells her that he thinks she is still very confused. The husband advises her that she has to take the good times with the bad and that when times get tough you need to work through them and get things sorted out. The husband says that he’d be very disappointed if they couldn’t turn things around and refers to cards he had recently found from the wife to him from 2006 and 2007 which the wife had signed “with lots of love”. Two things flow from this email. One is that it is a contemporaneous record by the husband that the wife had told him it was all over between them but at the same time a total lack of acceptance by the husband that the wife was expressing any type of serious final intention by that statement.
The husband produced an email addressed to the wife on 29 January 2009. The wife does not remember receiving this email. In this email the husband raises issues about Mr K’s future schooling. He apologises for not allowing the wife to be involved in the finances during the relationship. The husband was still having difficulty comprehending that the wife may have wanted an end to the relationship and he concludes the email by saying “I have an enormous amount of feeling for you [the wife] as a Mother and a partner”. It was suggested that this email constitutes an acceptance by the husband of the wife’s indication that she wanted to end the relationship. I’m unable to draw that conclusion from that email.
In February 2009 the wife sought legal advice from V Lawyers and was advised that she had two years from the termination of the relationship to commence proceedings. She also sought advice about her ability to lodge a caveat on the Suburb C property.
In an email written by the husband to the wife on 21 April 2009, after the relevant date, he talks about things getting to the “pointy end”. He expresses the view that financial difficulties have taken the love out of the relationship. The husband however still expresses ambivalence when he says “You must realise [the wife] I don’t and never have wanted to split its (sic) been the furthest thing really from my mind but on the odd occasion when I’ve said that I would move out that was done in pure frustration”.
In an email of 8 May 2009 by the husband to the wife the husband seems to now accept that the relationship is concluding. He raises with the wife the issue as to why she shouldn’t be the one who moves out of the house and says that would be more relaxing for both of them “as much as I would hate it”. The husband also suggests a delay in the sale of the Suburb C property because of a downturn in the real estate market.
In an email dated 12 May 2009 the husband explicitly says “It is obvious that it is all over” and expresses the view that the parties must reach some agreement as to how they move forward.
As indicated above, on 25 May 2009 the husband proposed that living costs be shared whilst the parties continued to reside under the same roof until the Suburb C property was sold (although in that email the husband still says he does not want the relationship to end). However, no such arrangement did eventuate.
On 3 June 2009 the wife’s lawyers wrote to the husband’s lawyers referring to an end of the relationship in May 2009. The husband replies to that letter on 8 June 2009 asserting that the relationship “terminated more than two years ago” (that is before June 2007). I find that the husband’s assertion is without any merit.
Exhibit 3 is a file note created by the wife’s lawyer on 3 June 2009 which contains, what appear to be notes of telephone call between the wife and her lawyer. The following is contained in those notes:
– re 6 months ago
[The wife] said
“The relationship is irretrievable.” – prob said this on 3 occasions
– remained under same roof.
– socially on her own her own – going out more
– still caring for children, still cleaning, still cooking his meals
…
– didn’t ever say she’d leave
– had previously said to him that if he’s not happy he should move out, in last 6 wks. – he said no, won’t move out
I’m going to sell the house to start with. Brought docs home for her to sign
– got car detailed yesterday – getting ready to sell it
There are some difficulties in drawing inferences from the file note. When the wife was asked about this note in cross examination she said she had little memory of what was said on the telephone other than she was seeking advice about how to stop the sale of the matrimonial home. The file note is corroborative of the fact that the wife told the husband prior to the relevant date that in her view the relationship was “irretrievable”. On the other hand, it is confirmatory of the fact that neither the wife nor the husband had done anything about how they were then living together in the matrimonial home prior to the relevant date. The husband’s actions relating to the sale of the home happened after the relevant date.
Consideration of the mutual commitment to a shared life includes understanding what roles each partner played during the relationship. The husband was the primary breadwinner. The wife throughout continued to be substantially responsible for the running of the household and that included food shopping (up until December 2008 and thereafter preparing shopping lists), cooking, cleaning, clothes shopping, ironing, gardening, “taxi driver”, shopping for birthday presents as well as generally organising social activities and special family functions. The wife did have some part time assistance with cleaning and to iron the husband’s business shirts.
The degree of mutual commitment drained out of the relationship over time. The parties’ words need to be viewed in the overall context of what was otherwise actually happening in their relationship before the relevant date. The husband said he was leaving but did not; the wife told the husband things were irretrievable but still maintained many aspects of the relationship. By 8 May 2009 and after the relevant date there was no degree of mutual commitment to the relationship and plans for ending the relationship started to be made.

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

The parties did not register their relationship but registration would not be a relevant consideration when determining circumstances relevant to the breakdown of the relationship.

(h) the care and support of children

The parties continued to care and support their children.
The wife was the primary person who attended to Mr K’s needs. The wife makes complaints about the husband’s appreciation of Mr K’s condition, but nonetheless the wife looked to the husband to assist in the care of Mr K’s condition (see for example the husband’s email to the wife on 30 August 2006). There is no discernible difference between how the parents acted in attempting to manage Mr K’s medical condition, before and after the relevant date.
The parties attended many school related functions activities for both Ms I and Mr K and that situation continued until Mr K completed Year 12 at the end of 2009. The wife says in 2008 the parties would both attend Mr K’s sports days (if the husband was not away). The wife says that in 2009 the parents attended Mr K’s school functions together. The husband claims that although he agrees he and the wife “presented a united front when it came to the children”, they were hiding from persons outside the household the true state of their relationship.
The husband deposes to the fact that in his view there was no change in the extent to which each of the parties cared for and supported the children at any point in their relationship. I find that there was no significant change before and after the relevant date in the way the parent’s cared for and supported their children.

(i) the reputation and public aspects of the relationship

In relation to the reputation and public aspects of the relationship again I have little evidence that anything of significance changed before and after the relevant date.
The wife’s evidence is that throughout the relationship and continuing during the period January 2007 until May 2009 the husband and herself were invited to and attended together as a couple many social and family events. The wife annexes to her affidavit a list of social and other events the parties were invited to or attended as a couple between January 2007 and December 2009. It is a reasonably extensive list of social events. The husband confirmed that the wife and he continued to attend the same school, family and mutual friend’s functions throughout 2009. He asserts that they did not attend as a “couple” in the sense that there was no affection between them at these events and they barely spoke to one another. He asserts that they were not invited to attend together but I do not accept that statement as the husband has not provided any corroborative evidence to substantiate the assertion that separate invitations were given to each party to attend these events.
In February 2009 the family went out together and celebrated Mr G’s birthday party.
The wife was known by the surname “Worrell” at the children’s school both before and after the relevant date.
The only evidence given by any third party witness was from Mr Z, who says he knew the husband from about 2005 but that he and the husband did not socialise regularly nor contact one another regularly and that he had not seen the husband in the 18 months prior to 18 February 2016. Mr Z, who was a barrister, gives vague evidence about “everybody” knowing the parties were living separate lives in June 2008. Very little weight can be placed on Mr Z’s affidavit (and he was not called to give oral evidence). He is totally unspecific as to what the husband actually said to him and when the husband said it to him. I take into account that the husband at some time prior to August 2007 had decided to leave the relationship but subsequently changed his mind. He doesn’t say who “everybody” is. What he does confirm however is that at a birthday party at the end of June 2008 the husband and wife were dancing together.

CONCLUSION

When considering when this particular relationship between the husband and wife ended, I bear in mind 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” (Lynam v Director-General of Social Security (1984) FLC 91-577).
I find that in January 2009 the wife communicated to the husband a unilateral intention to end the relationship but did not act upon it. There was no discernible change in the nature and extent of the parties’ common residence, the degree of financial support which each party provided to the household, the extent to which the wife continued to contribute in her homemaking role, the roles both parties played in the care and support of their children and in the reputational and public aspects of their relationship.
By May 2009 the husband seems to accept that the relationship is ending and he commences to discuss with the wife actions that need to take place to bring the relationship to an end. On 12 May 2009 he explicitly tells the wife that it is obvious that it is all over. On 25 May 2009 the husband proposes that living costs be shared. In May 2009 he has a conversation with the wife concerning the need to sell the Suburb C property. He attempts to change his life insurance policy. The husband causes D Pty Ltd to cease paying for the wife’s mobile phone and takes possession of the wife’s motor vehicle. On 1 June 2009 the husband provides the wife with a list of outgoings and expenses and asks her to pay half. On 3 June 2009 the wife’s lawyers write to the husband. On 19 July the husband removed the wife’s belongings from the master bedroom. In October 2009 the wife’s lawyers lodged a caveat on the Suburb C property on behalf of the wife.
The wife has satisfied the onus of establishing that the de facto relationship did not end until May 2009.

I certify that the preceding one hundred and ninety six (196) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 28 October 2016.

Associate:

Date: 28 October 2016