Pethrick & Folmar - [2022] FedCFamC2F 978

Federal Circuit and Family Court of Australia
(DIVISION 2)
Pethrick & Folmar [2022] FedCFamC2F 978

File number(s): MLC 542 of 2020

Judgment of: JUDGE O'SULLIVAN

Date of judgment: 28 July 2022

Catchwords: FAMILY LAW – Property – de facto property – where applicant seeks orders adjusting property interests – respondent seeks dismissal of application and declaration that parties never in a de facto relationship – threshold hearing to determine jurisdiction.

Legislation:
Evidence Act1995 (Cth), ss.128, 140

Family Law Act1975 (Cth), ss. 4AA, 90RD, 90SM

Cases cited:
Bannister v Pergolesi [2018] FamCA 888

Elias v Elias (1997) FLC 90-267

Fairbairn v Radecki [2022] HCA 18

Henry v Cuso [2022] FedCFamC1F 190

Herford & Berke (No 2) (2019) FLC 93-919

Jonah v White [2011] FamCA 221

Jonah & White [2012] FamCAFC 200

Jones v. Dunkel & Anor (1959) 101 CLR 298

JRR v PH [2005] QSC 253

Lynam v Director-General of Social Security (1983) 52 ALR 128

Mayson & Wellard [2021] FamCAFC 115

Moby v Schulter [2010] FamCA 748

Rooks & Padley [2014] FamCA 444

Sinclair v Whittaker (2013) FLC 93-551

Taisha & Peng [2012] FamCA 385

Vaughan v Bele [2011] FamCA 436

Zau v Uongh [2013] FamCA 347

Division: Division 2 Family Law

Number of paragraphs: 126

Date of last submission/s: 27 May 2022

Date of hearing: 22 & 23 November 2021 (via Microsoft Teams)

Place: Melbourne (via Microsoft Teams)

Counsel for the Applicant: Mr Tatarka

Solicitor for the Applicant: Lennon Lawyers

Counsel for the Respondent: Mr Dixon QC

Solicitor for the Respondent: White & Mason Lawyers
ORDERS

MLC542 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS PETHRICK

Applicant

AND:
MR FOLMAR

Respondent

order made by:

JUDGE O'SULLIVAN

DATE OF ORDER:

28 July 2022

THE COURT ORDERS THAT:
Pursuant to s.90RD(2) of the Family Law Act1975 (Cth) there is a declaration that the parties were in a de facto relationship for a period of at least 2 years comprised by the aggregation of the following periods:
(a)from January 2015 to January 2016;
(b)from May 2016 to August 2016
(c)September 2016 to January 2017; and
(d)January 2018 to October 2018.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Pethrick & Folmar has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Introduction

Tattoos are a tradition that go back thousands of years. The oldest discovered proof of tattoos reportedly dates back to 3250 BC.[1] American rap singer Tyga[2] is quoted to have said:
“Tattoos for me are like a timeline of my life. I could look at a certain tattoo, and it reminds me of a certain time in my life and why I got that tattoo.”[3]
[1] - ‘10 Facts About the Psychology of Tattoos’
[2] Also famous (or infamous) for (claims about his drug use and) at one time being in a relationship with Kendall Jenner who was in turn famous for being in a reality television show ‘Keeping Up with the Kardashians’ which is apparently about inter alia people who are famous for being famous.
[3] –‘Tattoos for me are like a timeline of my life. I could look at a certain tattoo and it reminds of me of a certain time in my life’.
It is trite to observe that illegal drugs do great damage not only to these involved in their sale and use but to their family, their friends and society as a whole. These reasons concern two people who were, on their own evidence, involved in drug dealing and whether they were in a de facto relationship.
As unedifying as the need to undertake such an exercise is, it is necessary because the parties (who have both on more than one occasion, been before the criminal courts), facilitated enthusiastically by their solicitors, have been in dispute about the issue for years. The applicant’s case is the parties were in a de facto relationship. The respondent who denies this still has the following tattoo[4] on the back of his head:
[image of tattoo of applicant’s name omitted]
[4] This is the applicant’s first name.
Following an extended interlocutory process, due to the parties who were either variously detained at Her Majesty’s pleasure, in rehabilitation or receiving residential psychiatric care, and a two day hearing where the respondent was represented by Queens Counsel a decision on that issue must now be made.
Procedural Background
Consistent with the need for the applicant, on her case, to commence proceedings within the two year standard application period, she filed her Initiating Application on 20 January 2020 seeking orders for an adjustment of property interests following what (she said) was the breakdown in their de facto relationship. By his response filed 17 April 2020, the respondent denied the parties were in a de facto relationship. He sought a declaration under s.90RD of the Family Law Act 1975 (Cth) (‘the Act’) to that effect. In her amended application filed 27 April 2021, the applicant sought a declaration that they had been in a de facto relationship.
There were orders made (after a number of interim skirmishes) for that jurisdictional question to be set for hearing which ultimately proceeded on 22 and 23 November 2021. At the hearing, Mr Tatarka of Counsel appeared for the applicant and Mr Dixon QC appeared for the respondent. At the conclusion of the evidence there were directions made (at the request of the parties) for an elongated timeline for the filing of written submissions.
Regrettably, and even after one extension of that timetable by consent, the applicant’s submissions were not filed until 2 March 2022. The apparently languid approach to compliance with Court orders did not end there. The respondent’s submissions had not been filed over a month later. This necessitated the matter being mentioned on 22 April 2022 and a further order (by consent) extending the time for him to do so. The respondent filed his submissions on 13 May 2022. The applicant, through her solicitors, abjured to file anything in reply. The decision on jurisdiction was then reserved on 27 May 2022.
The applicant’s case is that the parties were in a de facto relationship between early 2014 and October 2018. The respondent’s case appeared to change over time. In his trial affidavit the respondent denied a de facto ‘relationship or otherwise existed’ between those dates, or at all despite what he said elsewhere in the same affidavit. However, ultimately the respondent’s evidence led to the admissions that the parties were in what he said was an “exclusive sexual relationship” which he grudgingly described as “boyfriend and girlfriend”. Ultimately, the parties were able to agree that whatever relationship there had been, it was over by October 2018.
Factual Background
The applicant is thirty six years old and the respondent is fifty. The respondent was married in 2002 and had four children, all of who live with his ex-wife. The applicant, who had a child from a previous relationship, gave her address in Suburb B and said that she was not in paid employment. The respondent gave his address as Suburb C and said that he was an unemployed builder. The parties first met through “friends” in 2010 and appeared to have mixed in the same circles.
The respondent had been imprisoned before meeting the applicant. It seems their relationship began to ‘evolve’ after the applicant had separated from the father of her child. The parties began to ‘hook up’ in 2014. Between February 2014 and June 2014, the parties travelled interstate and spent time together at serviced apartments (after the applicant moved from her previous residence).
In July 2014, the respondent’s wife found[5] out he was sexually involved with the applicant. The applicant and the respondent then had a “break” after an argument about the respondent’s marriage.
[5]
In 2014, the applicant was arrested in New South Wales and charged with possess and supply prohibited drugs, possess two fire arms and ammunition, and unlawfully obtained goods. She was held in custody for two days before being bailed.[6] She returned to Melbourne, the parties resumed their ‘hook up’ relationship and the respondent told a friend of his “interest” in the applicant.
[6] The applicant eventually received a penalty for these charges in 2018.
The applicant moved into a property owned by the respondent and his brother. The parties then purchased a property together in the same suburb in December 2014.
The respondent was told by his wife to vacate their home in January 2015. After this, the parties carried out renovations on a property owned by the respondent and his brother (and stayed together there whilst doing so).
In 2015, the applicant and the respondent were both charged with trafficking methamphetamine and were bailed to reside at different addresses. This did not remain the case for very long.
During the time the parties subsequently spent together, one of the respondent’s friends was aware that the parties argued about how long it was taking the respondent to divorce his wife.
In the last quarter of 2015, and as what the applicant said was a gesture of the respondent’s love and commitment, the respondent had the applicant’s first name tattooed on the back of his neck whilst the applicant and her son watched.
However, following an argument between the parties, they did not see each other for a period after January 2016. The parties were however, involved again by May 2016 during which time the respondent accompanied the applicant on an interstate trip. The respondent supported the applicant during a criminal hearing regarding the above charges in New South Wales and the parties then travelled onto Queensland to see the applicant’s father.
The applicant says the respondent proposed, asked her father permission to marry her and bought her a ring. The respondent denies this and says the ring was the applicant’s idea and a way to wash money.
During the rest of 2016 the parties continued their relationship. The applicant would have correspondence sent to her at the respondent’s address and the respondent carried out works at the property owned by the applicant and her mother.
In January 2017, there were a number of incidents involving the parties. The applicant arranged for the respondent to file a divorce order application (which he subsequently withdrew). There was also an incident which resulted in police taking out an intervention order against the respondent. However, the applicant withdrew her compliant in February 2017. Notwithstanding this, the parties continued to travel interstate together up until May 2017.
The respondent was imprisoned later that month until the end of 2017. During that time the respondent made arrangements for the applicant to sign and pay bills on his behalf and the applicant corresponded with the respondent’s lawyer. During the time he was in jail the applicant sent various letters and other tributes indicating her affection and commitment to their relationship.
After the respondent was released from prison in early 2018, he filed another divorce order application and this was granted in April 2018. In March 2018, the parties were again travelling interstate together and the respondent supported the applicant when she was required to attend criminal proceedings in New South Wales again.
The respondent did not spend very long outside of jail before being arrested again and held in custody until mid 2018 whereupon his release he returned to the applicant’s residence. Matters continued pretty much as before until October 2018 at which time they separated.
Material relied on
Counsel for the applicant identified the follow material that his client relied on:
·the amended application filed 27 April 2021 (“Exhibit A1”);
·the outline of case filed 12 November 2021 (“Exhibit A2”);
·the applicant’s affidavit filed 28 April 2021 (“Exhibit A3”);
·the applicant’s amended financial statement filed 28 October 2021 (“Exhibit A4”);
·a video of the respondent getting a tattoo in 2015 (“Exhibit A5”);
·application for an intervention orders (“Exhibit A6”).
Counsel for the respondent told the Court that his client relied on the following material:
·various documents obtained under Freedom of Information (“Exhibit R1”);
·an application for an intervention order (“Exhibit R2”);
·the applicant’s bail documentation (“Exhibit R3”);
·applicant’s electoral role extract dated 30 May 2016 (“Exhibit R4”);
·a Department of Health and Human Service Report dated 20 December 2018 (“Exhibit R5”);
·the response filed 17 April 2020 (“Exhibit R6”);
·the respondent’s financial statement filed 17 April 2020 (“Exhibit R7”);
·the respondent’s affidavit sworn 13 October 2021 (“Exhibit R8”);
·the outline of case filed 15 November 2021 (“Exhibit R9”);
·the respondent’s final orders sought (“Exhibit R10”);
·the affidavit of Ms D sworn 12 October 2021 (“Exhibit R11”);
·the affidavit of Ms E sworn 17 April 2020 (“Exhibit R12”).
Having identified the above material, I do not intend to recite all of the evidence as it transpired at hearing. However, all of that evidence (including the transcript of the hearing), the material that the parties relied on, the exhibits before the Court, and the submissions made by the parties has been considered and taken into account.
Legal Principles
Pursuant to s.90RD(1) of the Act, this Court is empowered in proceedings brought under, amongst other provisions, s.90SM of the Act to declare, for the purposes of those proceedings, that a de facto relationship existed, or never existed, between the parties.
This, in turn, requires consideration of s.4AA of the Act, which provides for the meaning of a “de facto relationship”, and relevant authorities.
Section 4AA provides:
Working out if persons have a relationship as a couple
(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).
(2)      Those circumstances may include any or all of the following:
(a)       the duration of the relationship;
(b)       the nature and extent of their common residence;
(c)       whether a sexual relationship exists;
(d)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e)       the ownership, use and acquisition of their property;
(f)       the degree of mutual commitment to a shared life;
(g)whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h)       the care and support of children;
(i)        the reputation and public aspects of the relationship.
(3)No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4)A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
(5)      For the purposes of this Act:
(a)a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and
(b)a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.
The Full Court in Sinclair & Whittaker (2013) FLC 93-551[7] noted:
Given the nature of the definition of a de facto relationship in the Act, the ultimate decision as to whether there is a de facto relationship in any given time is a matter for the court and not a matter for the parties. Although their perception of the nature of the relationship is a relevant matter, it is not determinative.
[7] at paragraph [65].
The Full Court in Sinclair[8] adopted the observations of Fitzgerald J in Lynam v Director-General of Social Security,[9] who said:
Each element of a relationship draws its colour and its significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.
[8] ibid at paragraphs [55] citing Lynam v Director-General of Social Security (1983) 52 ALR 128 at [131].
[9] (1983) 52 ALR 128 at [131].
In Rooks & Padley [2014] FamCA 444, the relevant provisions were explained and summarised as follows:
Those provisions, or their state counterparts, have been the subject of considerable judicial discussion, principally in an attempt to more precisely analyse what will comprise “a couple”. Much of that analysis seems to have its genesis in the difficulty in satisfactorily distilling the essence of such a common, everyday concept. From those decisions the following propositions may be stated:
(a)Whether a de facto relationship exists or not is a question of fact, not a matter of discretion[10];
[10] Jonah v White [2011] FamCA 221 at [58] per Murphy J.
(b)A de facto relationship does not need to be akin to a marriage[11] although the nature of the association involved in a marriage relationship may be instructive[12];
(c)The parties determine the nature of their relationship and it may evolve and alter, even dramatically, over time[13];
(d)Whilst a composite expression, it is comprised of two parts “a couple” and “living together” each of which must be established[14];
(e)       There need not be full time living together;[15]
(f)       The relationship may be unhappy, but still subsisting;[16]
(g)       Sexual or other exclusivity is not necessary;[17]
(h)The gist of the inquiry is the degree to which parties have merged their lives into one.[18] That connotes financial, emotional and physical interdependence.[19]
[11] Moby v Schulter [2010] FamCA 748; (2010) FLC 93-447 at [163] – [164] per Mushin J.
[12] KQ v HAE [2007] 2Qd R 32 at [18] per McMurdo P, Keane & Holmes JA.
[13] Vaughan v Bele [2011] FamCA 436 at [11] per Cronin J.
[14] Taisha & Peng [2012] FamCA 385 at [12] – [21] per Cronin J.
[15] Moby v Schulter (supra) at [140].
[16] JRR v PH [2005] QSC 253 at [29] per Byrne J.
[17] ibid at [62] – [64].
[18] ibid at [60] and [67].
[19] Zau v Uongh [2013] FamCA 347 at [35] per Cronin J.

The Full Court in Herford & Berke (No 2) (2019) FLC 93-919 (‘Herford & Berke (No 2)‘) emphasised that the statutory test in s.4AA is to be followed when considering whether the parties had a relationship as a couple living together on a genuine domestic basis. Specifically, the Full Court considered that an assessment of “coupledom”, being whether there is a “merger of two individual lives into life as a couple”, as propounded by Murphy J at first instance in Jonah & White [2011] FamCA 221, was an incorrect characterisation of the necessary relationship.
While the Full Court in Jonah & White [2012] FamCAFC 200 did not disagree with Murphy J’s statements of principle, they did not apply anything other than the statutory test. The Full Court in Herford & Berke (No 2) suggested that the reliance of the primary judge in that matter on the concept of “coupledom”, being a statement “made at first instance which [has] been overtaken and corrected by several Full Courts”, would be to invite error. In other words, the concept of “coupledom” adds an “impermissible gloss”[20] to the statutory test.
[20] Sinclair & Whittaker (2013) FLC 93-551.
There are two other preliminary matters namely, that the parties must not be legally married to each other and must not be related by family. Neither of those apply here.
In determining whether or not a de facto relationship exists, I must consider the whole of the circumstances of the relationship: see Sinclair v Whittaker (2013) FLC 93-550. The applicant has the onus of establishing that a de facto relationship existed on the balance of probabilities.[21]
[21] see s.140(1) of the Evidence Act 1995 (Cth).
Finally, there is the recent decision of the High Court of Australia in Fairbairn v Radecki [2022] HCA 18 where at [28] it was said:
28. Section 4AA(1)(c) identifies the relationship which is the concern of the Act: "a relationship as a couple living together on a genuine domestic basis". The existence of such a relationship is determined having regard to "all the circumstances" of a relationship; significantly, those "circumstances" include any or all of the circumstances listed in s 4AA(2), and, by reason of s 4AA(3), no particular finding about any circumstance is necessary for there to be a de facto relationship. Consistently with the reality that human relationships are infinitely mutable, in determining whether a de facto relationship exists a court is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate.
Impression and credit of the parties
The parties contended for diametrically opposed positions. The applicant contended that the parties were in a relevant de facto relationship, and the respondent denied this but said that they were merely boyfriend and girlfriend.
I found both parties, but in different ways, to be unimpressive witnesses. It is clear to me that both feel aggrieved. I formed the view that they both exaggerated their respective positions, with the applicant (who at times was quite truculent) characterising almost every aspect of the parties’ interactions as confirming the de facto nature of their relationship. Furthermore, it was the respondent’s position the applicant’s credit was damaged by a number of prior inconsistent statements – some under oath.
On the other hand, for the purpose of denying any de facto relationship, the respondent diminished or trivialised, often quite implausibly, a number of significant events or aspects of their relationship. The respondent gave evidence with a flat effect and in a manner which I felt, was shaped by an inability to make any concessions which could be construed as an acceptance of any of the evidence offered to the Court by the applicant which would support a finding on what the applicant said was the reality of the relationship.
Neither party was entirely reliable, but on balance and broadly speaking, the argument of the applicant (for the reasons I set out below) was more plausible than those of the respondent.
In Jonah & White[22]Murphy J had observed at [8] and [10]:
The issue here, in my view, is not so much the veracity or reliability of the parties’ accounts of events, but rather, the picture presented by the totality of them and the conclusion/s resulting therefrom.
… I consider that the evidence of each of the parties was affected significantly by the fact that their recollection now, in respect of events past, was refracted through the prism of their own perceptions of the relationship and of the varying degrees of disappointment felt by each at its demise …
[22] [2011] FamCA 221 at [65].
The Full Court in Sinclair & Whittaker (2013) FLC 93-551[23] noted:
Given the nature of the definition of a de facto relationship in the Act, the ultimate decision as to whether there is a de facto relationship in any given time is a matter for the court and not a matter for the parties. Although their perception of the nature of the relationship is a relevant matter, it is not determinative.
[23] at paragraph [65].
In light of the above matters, the Court, in resolving the parties’ competing factual assertions and making findings of fact, has, in the absence of an admission by a party or a failure of a party to cross-examine the other party on a significant allegation, preferred the assertion(s) of a party as against the competing assertion(s) of the other party where the first mentioned party’s assertion(s) is supported by contemporary documentary material.
By contemporaneous documentary material, the Court is referring to, for example, the parties’ correspondence, third-party correspondence between a party/parties and a third party, the parties living with each other at various times, attendance at certain places together at certain times, and photographs. In relation to the latter and the significant amount of such evidence adduced by the applicant in particular (see her annexures to her affidavit), no persuasive evidence was given by the respondent that this contemporaneous documentary material was inaccurate on its face.
The evidence of the applicant was consistent with the contemporaneous documentary material and tended to support her contentions that a relevant de facto relationship existed between the parties
On the other hand, to a significant extent, the respondent’s evidence, in particular his evidence relating to the nature of his relationship with the applicant, was not consistent with this contemporaneous documentary material, and his belated concession that the parties were merely boyfriend and girlfriend or were in a “hot and cold” relationship ultimately lacked persuasiveness.
The applicant
The applicant was called to give evidence and was subjected to detailed cross examination. The applicant relied on her affidavit filed 27 April 2021. The applicant adopted her affidavit setting out the “facts” including when she first met the respondent and deposed inter alia:
8.The Respondent, [Mr Folmar] is my de facto husband. [Mr Folmar] was born [in] 1972 and is 48 years old.
9.I have one child from my previous relationship, [F] ('[F]'). [F] was born [in] 2013 and is 8 years old.
10.I have sighted the affidavits of [Mr Folmar] sworn on 17 April 2020 and 9 April 2021 where [Mr Folmar] denies that we were in a de facto relationship. This is inaccurate.
…
16.[Mr Folmar] and I cohabited for the most part from February 2014 to October 2018. We were committed to each other to the exclusion of others. At the time I was convinced that our relationship was enduring.
17.I have sighted of the Affidavit by [Ms E] and state that her assertions about our relationship is false and inaccurate. Since filing these proceedings. I have received multiple threats from [Ms E] and her associates, up until late 2020 threatening me to discontinue current proceedings against [Mr Folmar].
The applicant’s affidavit also set out where the parties stayed together, their financial arrangements, their involvement with a number of properties (including renovations or works on a number of those) as well as deposing to what she knew about the respondent’s separation from his wife and “the plans” she said they made for “our future”. The applicant deposed:
23.In 2015, [Mr Folmar] informed me that his wife had ended their marriage.
Now produced and shown to me marked -7" is a letter from [Ms G] to [Mr Folmar] dated 5 January 2015. I am in possession of the original copy of this document.
24.In January 2015, [Mr Folmar] and I commenced renovations on [H Street, Suburb C]. The former tenants had vacated the property and the property was in desperate need of repair. We renovated this property to live in temporarily. We resided in the property whilst renovating it. The renovations were completed in/around May 2015. …
25.[F] lived with [Mr Folmar] and I in [H Street, Suburb C] during the week and he would spend time with my mother on weekends. [Mr Folmar] purchased a bed for [F] and [F] had his own bedroom. [Mr Folmar] was a father figure to [F]. …
26.Over the period that [Mr Folmar] and I were in a relationship, [Mr Folmar] and I had many discussions and made plans for our future…
27.[Mr Folmar] and I discussed having children once his divorce was finalised. We talked about spending the rest of our lives together and made many plans for our future.
28.As set out in [Mr Folmar’s] affidavit, [Mr Folmar] and I travelled to Perth, New South Wales and Queensland on numerous occasions for holidays. I paid for these holidays, We spent time with my father at his property in [Suburb J]. All my friends and family knew us as a committed couple….
29.In 2015, [Mr Folmar] consulted with a solicitor to commence negotiations with his wife regarding their financial settlement and accordingly, a divorce. …[Mr Folmar] told me that we had to be patient and in time, his wife would relent and consent to a divorce and a mutually acceptable financial settlement.
In her affidavit the applicant claimed that:
31.[Mr Folmar] always maintained that he loved me and that he wanted to build a life and a future together with me. As a gesture of his love and commitment to our relationship, [Mr Folmar] had my name tattooed on the back of his neck in 2015….
32.In 2015 [Mr Folmar] provided authorisation for me to act as his nominee in relation to his insurance policies with [Company K], utilities with Origin Energy and for the properties at [H Street, Suburb C] and [L Street, Suburb C].
33.In 2016, [Mr Folmar] asked me to marry him. Needless to say I was ecstatic. I was deliriously in love. I accepted but told him that he would have to ask my father for my hand in marriage.
34.On or around mid 2016, [Mr Folmar] and I drove from New South Wales to Queensland to ask my father for my hand in marriage.
35.In mid 2016 [Mr Folmar] put a deposit of $3,000 cash on a wedding ring which we choose together in [Suburb N]. The ring was a 3.5 carat gold [ring].
36.That evening, [Mr Folmar] and I had dinner at a restaurant with my father and [Mr Folmar] sought his consent to marry me. My father gave his consent and we celebrated our engagement.
…
38.Shortly thereafter, our family and friends found out that we were engaged.
…
39.In 2017, [Mr Folmar] filed for divorce from his wife. I paid the filing fee. [Mr Folmar] however filed a notice of discontinuance, just prior to serving a sentence in prison. I was pregnant at the material time.
…
The applicant’s affidavit also addressed what she said she did when the respondent was imprisoned in 2017 and 2018 including as follows:
40.When [Mr Folmar] was arrested and sentenced to a term of imprisonment, [Mr Folmar] nominated me and provided the authorisations to the relevant authorities for me to liaise and manage payments on his behalf…
41.[Mr Folmar] and I continued to correspond throughout the duration he was serving a sentence in prison….
42.From 2017/2018 I was nominated as [Mr Folmar’s] partner on the prison's visitor list. I bore all his expenses whilst he was in prison, including prison monthly expenses, reconnection of electricity at one of his properties, payment of rates and water bills. I visited [Mr Folmar] every weekend on Saturdays and Sundays.
…
43.In 2018 when [Mr Folmar] was released from prison, he promised me that he would obtain a divorce from his wife. He then filed the necessary divorce application in Court and the Order was granted in 2018.
44.In 2018 [Mr Folmar] was named as my de facto partner with DHHS.
Finally, the applicant’s affidavit set out what she said was the “family violence” she “endured” during the relationship:
45.I have endured ongoing family violence from [Mr Folmar] during the subsistence of our relationship and after the termination of our relationship.
46.In January 2017 the police obtained an Intervention Order on my behalf against [Mr Folmar] ….
47.However I loved [Mr Folmar] and he made me believe that he loved me also. I believed that our relationship would endure anything, hence we continued to stay together….
48.On 23 May 2018 an argument erupted between us outside [H Street, Suburb C]. The police attended and later, [Mr Folmar] was arrested and imprisoned for 99 days. We were both shocked. I continued to be [Mr Folmar]’s only support whilst he was in prison. Whilst in prison, [Mr Folmar] wrote me a 5 page letter about our relationship and his love for me.
49.In 2018 [Mr Folmar] was released from prison. He rang me from [Suburb O] Court and I organised an uber to pick him up and drive him to me. We continued to cohabitate as a couple until 7 October 2018.
50.On 7 October 2018, [Mr Folmar] and I had an argument over his wife having placed caveats on his properties.
51.On 9 October 2018 I then heard a recording of [Mr Folmar] speaking to a girl and informing her that our relationship is not love anymore". This to me was the end of our relationship.
…
In the course of her evidence in cross examination the applicant agreed with the suggestion put to her that she had pushed the respondent make an application for a divorce order saying “[W]ell he can’t have his cake and eat it too”. [24]
[24] Transcript 22 November 2021, P-34, Line 39
With the protection of a certificate under s.128 of the Evidence Act, the applicant gave evidence that she and the respondent were both involved in drugs and “drugs were a big part of [their] relationship”.[25]
[25] Transcript 22 November 2021, P-64 Line 34 to P-65 Line 9
Also during the course of her evidence in cross examination the applicant was asked questions about the tattoo on the back of the respondent’s head. The applicant’s evidence was “… he got that tattoo so that I could feel confident in the fact that, Well, why would you want to be married to man with another woman's name tattooed on the back of his neck?”[26] In re-examination the applicant’s evidence on this issue was that she took a video of the tattoo being put on the respondent and “that was more important to me, him getting my name – that’s more special than a $120,000 diamond ring, having my name tattooed on a man’s neck.”[27]
[26] Transcript 22 November 2021, P-71 Line 20-23.
[27] Transcript 22 November, P72, Line 9-12
The respondent
The respondent was called to give evidence and was also cross examined for many hours. The respondent adopted his affidavit filed 14 October 2021 in which he deposed:
4.I first met the Applicant through a friend of mine [Ms E] in or about 2010.
5.I was married at the time to [Ms G], and had four children with her...
6.…
7.The Applicant and I spent time intermittently together between April and July 2014 when we would go out, but did not live together. We stopped seeing each other in about July 2014 after having arguments about my marriage to my wife.
8.I did not separate from my wife until 2015 and we were divorced in 2018. My relationship with my wife and family were sources of arguments between the Applicant and I.
9.Between 2014 and 2018 the Applicant and I saw each other intermittently, but the relationship was marked by arguments and periods of time where we did not talk or see each other. My wife and I are involved in a separate proceeding in this court and that matter is not finalised.
The respondent set out in his affidavit what he said were the details regarding when and why he was imprisoned between 2014 and 2021 and went on to say inter alia:
12.The Applicant and I did travel to New South Wales and Queensland on a few occasions between 2014 and 2018 when we were on good terms….
The respondent’s affidavit also addressed what he said were the circumstances surrounding and why the parties were involved in various property transactions, along with how they both came to be apprehended by Victoria Police in March 2015 before going on to say:
20.During 2015, we spent one or two nights irregularly together, and sexual relations took place between us.
21. Apart from the [P Street, Suburb C] property investment, we had no joint financial dependence or financial support of each other. We had no joint bank accounts, and nor did we have any shared expenses. The Applicant obtained money from government benefits and dealing in drugs.
The respondent went on in his affidavit to make claims about a dispute between the parties in December 2015 what he said were property transactions and the reasons for same in 2016 before deposing:
26. In or about 2016 I recall that I first travelled to Queensland with the Applicant through [City Q] as the Applicant had a Court date for the criminal charges in New South Wales…..
27. When we returned from Queensland we again did not see each other.
28. In or about October 2016 we started seeing each other socially on various occasions. On one occasion I offered to paint the house the Applicant and her mother had recently purchased at [R Street, Suburb B].I paid for the paint and I stayed at the house while I was painting the property for about two and half days, after which I returned to my own house to live.
29. We then stopped seeing each other again in or about January 2017 when the Applicant’s son [F] was hospitalised for a suspected drug overdose at my home. …
30. On or about 27 January 2017, we had an argument outside [R Street, Suburb B] property about [F]’s overdose in my home. This resulted in the Applicant bringing and Intervention Order Application through Victoria Police.
The respondent then went on in his affidavit to say:
32. … I was in prison from 2017 until 2018…the Applicant insisted that I stay at her property….
33. On or about late February 2018 I flew to Queensland with …the Applicant. …The Applicant and I flew back to Queensland on 8 March 2018... The Applicant and I returned to Melbourne on 18 March 2018 because of my Community Corrections requirements. The Applicant and I then flew back to Queensland with [F] on 30 March 2018. We then returned to Melbourne on 8 April 2018. …
34. In late March 2018, I moved into the [R Street, Suburb B] property for only a number of days...
35. I admit that I lived with the Applicant at [R Street, Suburb B] from 30 August 2018 until about 7 October 2018….
Finally, the respondent then went on to depose to inter alia issues regarding the applicant placing caveats on his property, said there was “no common residence” apart from “approximately 12 weeks”, there was a “sexual relationship” at “irregular times”, they did not share bank accounts or “any other financial arrangements” before responding to matters in the applicant’s affidavit.
In his evidence before the Court in cross examination, the respondent said variously that he and the applicant were “close personal friends” and was “off and on over those years”. He later agreed that she was his “drug buddy” with whom he was in an “exclusive” “sexual relationship” before finally admitting that he would describe their relationship as “boyfriend and girlfriend”. These descriptions of the relationship were given by the respondent who never denied having the applicant’s name tattooed on the back of his head.

The respondent’s evidence in cross examination yielded many telling admissions. Not only did he concede he and the applicant were both using methamphetamine[28] but he was “on drugs the whole time”[29], once he left his wife he was with the applicant[30], when he was in jail he would call the applicant, she would call and visit him[31], the applicant had told him she loved him, her child missed him[32] and she had been trying his surname on for size[33]. Moreover, the respondent admitted that the respondent gave him money when he was in jail[34], when they lived together they both bought the food, prepared meals for each other and shopped together, he did things around the house for her[35] he was committed to her “sexually”[36], she would take photos constantly when they were together and he was shown in these with the child on his shoulders, asleep in the car, in a pool and on a swing[37]. The respondent admitted that he and the applicant travelled interstate together including to the applicant’s father’s property[38] they went out together as a couple and in an application for an intervention order he had made (after they separated) she had been described (on the basis of information he had provided) as his “former partner”[39]. Finally, when it was put to him that his real position was “off and on de factos” he said “hot and cold”.[40]
[28] Transcript 23 November 2021 P-94 Line 44 to P-95 Line 1
[29] Transcript 23 November 2021 P-103 Line 24
[30] Transcript 23 November 2021 P-103 Line 45
[31] Transcript 23 November 2021 P-107 Line 22 to P-108 Line 12
[32] Transcript 23 November 2021 P-108 Line 42 to P-109 Line 21
[33] Transcript 23 November 2021 P-110 Line 25
[34] Transcript 23 November 2021 P-111 Line 36
[35] Transcript 23 November 2021 P-112 Lines 29-42
[36] Transcript 23 November 2021 P-124 Line 23
[37] Transcript 23 November 2021 P-126
[38] Transcript 23 November 2021 P-129
[39] Transcript 23 November 2021 P-138
[40] Transcript 23 November 2021 P-136 Line 10
Evidence of the respondent’s former solicitor
The respondent relied on the affidavit of Ms D filed 14 October 2021 who was called to give evidence and was cross examined.
Ms D is a legal practitioner who was retained by the respondent in November 2018 for (she deposed) “property matter …the return of my client’s personal property and harassment of my client.” Ms D deposed to the “initial instructions” she had received and the correspondence (she said) she sent to the applicant in November 2018 along with attempts to have caveats lodged against the respondent’s properties removed up and until she ceased to act in January 2019.
Importantly in her affidavit which was (she admitted) prepared by the respondent’s solicitors, Ms D had deposed she “mistakenly assumed” that the applicant and respondent “were in a genuine domestic relationship”.
The applicant’s closing submissions addressed the evidence given by Ms D at paragraphs [17] to [19] and I accept the criticisms made of Ms D’s evidence set out therein.
I reject the respondent’s submissions to the effect that the evidence of Ms D was consistent with the respondent’s denial of a domestic relationship. Not only did the respondent in cross examination admit “of course” he gave her the information[41] but Ms D contradicted, in her evidence in cross examination, the respondent’s claim that he had not read the draft of the letter she sent, and she did so repeatedly.[42]
[41] Transcript 23 November 2021, P-136 Line 2
[42] Transcript 23 November 2021, P-150 Line 26 to P-152 Line 2 & also P-154 Line 41 to P-156 Line 13
I accept the applicant’s contention that the letter drafted and sent by Ms D (on the basis of the respondent’s instructions) supports the argument that the parties were (using the words in that letter) “living together on a genuine domestic basis”. [43]
[43] See exhibit 1 to the affidavit of Ms D[Ms D] sworn 12 October 2021 and Exhibit “21” to the affidavit of the appplicant
As indicated earlier I intend to place more weight on the contemporaneous documents prepared at the time which were consistent with the respondent having told Ms D he had been living with the applicant on a “genuine domestic basis”.
Evidence of Ms E
The respondent also relied on the affidavit of Ms E filed on 17 April 2020 who was not required for cross examination.
Whilst the respondent made much in his submissions about the implications of this for the applicant’s case, it was clear that the applicant and Ms E (who is now living under the same roof as the respondent) are estranged. Support for this can be found not only in the applicant’s affidavit but the text messages annexed thereto from Ms E to her which included the following:
I got an open invite to come hang out whenever i want just have to let him know and he'll send me …And he said you look like a tranny he asked me if you had a sex change lol…Anyway they all know youre a dog now
Im not giving you anything on [F] that poor little boy is better off where he is if i didnt think …so id tell you but you're just to fucked up…Get your shit together and i will tell you but not until you do…You need to stop being a vindictive greedy cunt (spelling errors in original at -3 to Exhibit A3)
Ms E’s evidence where she is (figuratively and in reality) in the respondent’s camp should be viewed accordingly. Moreover, the chronology of events she deposed to was not inconsistent with the applicant’s case (and having regarded to what I am satisfied was a (drug fuelled) tempestuous relationship between the parties she could not be expected to be privy to the intimate details of the parties’ relationship.
Submissions
The applicant’s submissions
On 2 March 2022, the applicant filed her closing submissions. After setting out the “Background” and the “Applicable Law” those submissions were:
14It is common ground that the relationship between [Ms Pethrick] and [Mr Folmar] was volatile and this perhaps led to the Court’s inquiry at the end of the second day of hearing as to whether or not it could make findings of periods where the parties were and were not in a de-facto relationship and then aggregate those periods in order to determine whether the threshold test in s90SB(a) had been met. Whilst [Ms Pethrick]’s position is that the relationship of de-facto subsisted for the whole of the 4 years and 9 months including periods where [Mr Folmar] was imprisoned, it is conceded that the Court could nevertheless find periods where the relationship paused and resumed and aggregate them so as to meet the threshold test. It is submitted that the Court should not only declare whether a de-facto relationship existed but in order to avoid any doubt and regardless of whether aggregation is a factor a supplementary declaration under s90RD(2)(a) (the period or periods of the relationship) and s90RD(2)(d) (when the defacto relationship ended).
EVIDENCE
15[Ms Pethrick] relies on her affidavit sworn 27 April 2021 and the exhibits annexed thereto. It is submitted that where [Ms Pethrick]’s evidence differs from the evidence given by [Mr Folmar] her evidence ought to be believed and she ought to be accepted as a witness of truth who gave a consistent account of the relationship and endeavoured to assist the Court to the best of her ability. [Mr Folmar] on the other hand was evasive and refused to make concessions even when the evidence against his version of events was totally overwhelming (for example the circumstances leading to the tattoo of [Ms Pethrick]’s name on his neck (Exhibit 12 (CB 215) which he described as being part of a drug fuelled binge that was demonstrably (by video) not the case). He ultimately conceded that in his own mind he and [Ms Pethrick] were boyfriend and girlfriend although he initially described their relationship as one of “drug buddies”.
Exhibit “ 9” (CB 164-185) are photographs of the parties including a number of photos that show [Mr Folmar] with [Ms Pethrick]’s son [F] in a variety of situations and at a variety of ages. They are consistent with [Ms Pethrick]’s evidence of [Mr Folmar] having a role as a father figure to her son [F]. 23 (CB 296-302) are more photos which show [Ms Pethrick] and [F] with [Mr Folmar] and his children in a variety of situations that appear to demonstrate an easy familiarity and a blending of their families.
Exhibit “17” (CB 262-270) is comprised of a series of letters from [Ms Pethrick] to [Mr Folmar] in the period 20 April 2014 to 8 July 2017 and gives a contemporaneous account of the relationship between the parties including the period in mid 2017 when [Mr Folmar] was in prison (he was imprisoned from 2017 –2018). “18” (CB272 – 276) shows payments of money by [Ms Pethrick] to support [Mr Folmar] in prison.
16The Respondent’s case outline reveals (CB 724-756) that [Mr Folmar] was again imprisoned [in] 2018 and remained in jail until 2018. His imprisonment on this occasion was in respect of breaches of the intervention order taken out by the Applicant. Significantly it is submitted, on his release from prison on 30 August “the parties lived together for a period of 5 weeks…” A consistent theme throughout the case outline is the minimisation of the nature of the relationship, a theme that was continued in cross examination even when the facts (such as the tattoo) belied the attempts to portray the couple as something akin to friends with benefits.
“ 14” (CB 222-238) are copies of engagement cards and “ 13” are the receipt and valuation for the engagement ring that [Ms Pethrick] received from [Mr Folmar] on the [Region S] when on her evidence, the parties were in Queensland so that [Mr Folmar] could seek [Ms Pethrick]’s father’s blessing for their marriage.
17[Mr Pethrick] relies on the letter sent by [Ms D] solicitor (exhibit 1 to the affidavit of [Ms D] sworn 12 October 2021 and Exhibit “21” to the affidavit of [Ms Pethrick]) which set out [Mr Folmar]’s instructions to [Ms D] regarding the relationship between him and [Ms Pethrick]. Whilst [Ms D] has since sought to walk back the language used in her letter as being based on “general paragraphs” which “I used to provide a context as to how the parties knew each other” it is submitted that such an explanation ought not be accepted particularly in circumstances where [Ms D] failed to disclose to the Court in her evidence in chief that she had provided the draft of the letter to [Mr Folmar] and that she had spoken to him before the final letter was sent. It is noted further that [Mr Folmar] asserted that he didn’t read the letter in draft before it was sent to [Ms Pethrick] which itself defies belief given his very keen interest in having the caveats removed and his personal property returned and is directly contrary to [Ms D]’s evidence that she had no doubt that he had read the draft when he spoke to her before the letter was sent.
18It is noted that the letter is replete with the language of a genuine domestic relationship including “estranged partner” “commenced a relationship in or around 2015 and began living together on a genuine domestic basis within a few months (“the Relationship”) and that “it is understood the Relationship broke down irretrievably in or around 5 October 2018”. The proposition that [Ms D] simply jumped to conclusions based on her own mistaken assumptions (at para 12 of her affidavit) is unsustainable. [Ms D] could not have simply made up the dates that she included in her letter nor the specific allegations of a “genuine domestic relationship” that she made on [Mr Folmar]’s behalf – that information must’ve come from him.
19It is further noted that in her affidavit [Ms D] has re-defined the relationship referred to in her letter as a “friendship” in circumstances where she does not depose to the basis upon which came to that descriptor having not had any further instructions from [Mr Folmar]. Finally, [Ms D] does say in paragraph 12 that she recalls being instructed by [Mr Folmar] that the parties “would stay at the Applicant’s ([Ms Pethrick]) house some nights and at his house on other nights”.
…
22In all the circumstances and on the totality of the evidence it is submitted that the Court ought be satisfied on the balance of probabilities that relationship between the parties meets the requirements of s4AA of the Act.
The respondent’s submissions
As noted earlier there were delays by the parties in complying with orders for the filing of submissions. These delays continued even after the applicant had (eventually) filed the above submissions. Because of this, the matter was called on for mention on 22 April 2022 and by consent a further order was made extending the time for closing submissions to be filed.
The respondent (then) filed his submissions on 13 May 2022 which were:
4.The Applicant has the onus of proof to submit evidence capable of satisfying the Court of the existence of a de facto relationship. The Applicant has failed to meet the jurisdictional threshold pursuant to section 4AA(1)(2) and (3) of the Act and otherwise.
5.Virtually all of the evidence of the Applicant demonstrates a typical scatter gun approach made up of self-serving, uncorroborated, and fictitious contentions, that if true could have been supported by producing evidence in the appropriate evidentiary form and calling the appropriate supporting witnesses to corroborate her evidence, the examples are as follows:
(a)       The Applicant’s mother [Ms T];
(b)       The Applicant’s father [Mr U];
(c)Any of the persons who allegedly signed and sent the alleged various engagement cards;
(d)       Treating Doctors; and
(e)       the various other professionals;
The Applicant has neglected, failed, or refused to do so in support of establishing her case.
6.In contradistinction, the Respondent called and filed Affidavits by [Ms E] and [Ms D] both of whom were available for cross examination. It is to be noted the Applicant declined to even test by way of cross examination [Ms E]’s evidence and her Affidavit was tendered into evidence unchallenged. That evidence also supports the contentions of the Respondent [Exhibit R12].
7.Similarly, an Affidavit of [Ms D], Solicitor, of [D Law] was filed and it should be noted that in taking that step the Respondent deliberately and intentionally waived all his rights to legal professional privilege. [Ms D] was available for cross examination and was cross examined by the Applicant’s Counsel at large. [Ms D’s] evidence supported the contention of the Respondent, with respect to the relationship being “volatile” and was an, “on and off” relationship. [Exhibit R11]. Submissions of [Ms D] will be dealt with later in this address.
8.The credit of the Applicant is an issue as the Applicant stated in evidence that she was unaware of her duty of disclosure, despite being represented by the same legal practitioners throughout these proceedings. The Applicant’s instructors were present on each and every occasion this matter has been before the Court and Orders were made, many of which were made “By Consent”.
9.The non-disclosure by the Applicant of bank account details, mortgages, contracts for purchase sale and taxation returns with respect to her finances as set out in the Orders of 6 May 2020 (made By Consent) and 14 May 2020 and subsequently in letters to her solicitors requesting the same for her solicitor to be provided cannot be ignored. In contrast, the Respondent has complied with Orders for disclosure and any request for documents made by the solicitors for the Applicant.
10.In giving her evidence the Applicant stated that she had provided bank statements to her solicitors, but this was subsequently found to be completely untrue and such evidence was never presented to the Court.
11.The Applicant’s evidence was full of graphic inconsistencies with declarations of love for the Respondent. The facts are the Respondent spent some 11 months in prison largely due to breaches of an Intervention Order Application taken out by the Applicant on 28 January 2017. The Applicant’s reporting the Respondent to Victoria Police led directly to the imprisonment of the Respondent at a time when she claimed to be in love with the Respondent and in a genuine de facto relationship with him
12.The Applicant’s evidence was self-serving, misleading and avoided the truth of her residence, and her relationship with the Respondent. This submission is supported by the following:
(a)Selective use of the Department of Health and Human Services (“DHHS”) Report [Exhibit R5];
(b)Services Australia Parenting Payment, Child Care Benefit, and other benefit documents produced only after the Respondent’s Application, and Court Order for the Applicant to sign the necessary Freedom of Information (“FOI”) Application to have her Services Australia/Centrelink file released 28 April 2021, noting the Applicant opposed the Application until Ordered by the Court on the day of the Court appearance, 13 April 2021 [Exhibit R1];
(c)New South Wales District Court Bail documents wherein the Applicant was strictly bailed to live at [R Street, Suburb B] property with her mother from 2014 until 2018 [Exhibit R3];
(d)The Australian Electoral Commission email dated 30 May 2016 and Apparent Failure to Vote Notice dated 19 March 2016 addressed to the Applicant at [V Street, Suburb J], noting the Applicant was enrolled to vote at the property located at [R Street, Suburb B], in the State of Victoria [Exhibit R4];
(e)The failure to tender or disclose the Purchase Contract Agreement and mortgage details regarding the joint purchase of [R Street, Suburb B], in the State of Victoria with her mother [Ms T]. A call was made during the hearing for the documents but went unanswered.
(f)The purchase details of [P Street, Suburb C] property were not provided and no details of any bank accounts from where monies were withdrawn or the loan attaching to that matter was disclosed and the Applicant’s Financial Statement is silent on the relevant point. See Applicant’s Amended Financial Statement [Exhibit A4].
(g)Obfuscating evidence regarding a $500,000.00 cheque being held by Victoria Police and see evidence at Transcript page 36 line 8 – 44 which evidence was deliberately evasive; and
(h)The Applicant continued to be non-compliant with the Orders of 6 May 2020 and 14 May 2020 up to the date of, and including, the Trial dates.
…
Over the course of the next 18 pages of those submissions the respondent addressed (selectively)[44] extracts from the evidence of both parties before the Court in the context of the relevant statutory considerations (and these have been taken into account in that context) before concluding:
[44] See for example para 15 & 16 thereof which illustrate this vice (when reference is had to inter alia Transcript 23 November 2021 P-138 Line 39-40) and para 51 (given Transcript 23 November 2021 P-136 Line 2). There is also the problem that para 59 where reference is made to the time the R spent in jail in a way which isn’t accurate.
D. CONCLUSIONS
92.This case is no different to any other case in which the Court has to make a decision. The authorities say that it is the facts that will determine whether or not these parties satisfy to the requisite standard the implementation of section 4AA(1)(c) including the factors set out under section 4AA(2) to enliven this Court’s jurisdiction.
93.The Applicant’s Counsel in their closing submissions stated that the de facto relationship subsisted for the whole of four (4) years and nine (9) months, including periods when the Respondent was in prison. It is acknowledged that parties can live on a genuine domestic basis even though they did not share a common residence throughout, but this proposition is simply not supported by the totality of the evidence in this case
94.In support of that submission her Counsel stated that the Applicant ought to be accepted as a witness of the truth. When examined objectively this submission as to the Applicant’s credibility can not possibly be accepted by the Court.
95.The Applicant’s evidence, was consistently argumentative, inconsistent, and false. On many occasions it descended into the fanciful (Rock in the Jock). However, in relation to vital evidence there were so many inconsistencies in what the Applicant alleged. They were:
(a)Her residence: On numerous occasions the Applicant indicated to various authorities and institutions that her residence was that of [R Street, Suburb B], a property owned by her mother. It was a strict bail condition that she had to reside at that address.
(b)On a number of occasions the Applicant applied to obtain Commonwealth support which was directly related to her paying rent at [R Street, Suburb B]. On her documentary evidence this was from the period from 2013 until 2018. All of the said statements to the Commonwealth were declared true and correct and signed by the Applicant herself.
(c)On her Commonwealth Bank statement 3 her address was shown to be [R Street, Suburb B].
(d)The Bail Document R3 was clear about the Applicant’s required residential address.
Failure to call independent corroborative witnesses
96.Throughout these proceedings the Applicant has failed to call any corroborative witness. This relates to her mother in relation to residence, the alleged engagement, the situation regarding [F]’s residence, and the engagement ring. It could have also included providing details of the financial position with respect to the joint purchasing of [R Street, Suburb B]. The Applicant failed to produce or tender the Purchase Contract, the mortgage or loan Applicant documents or bank statements which is the property she jointly bought jointly with her mother.
97.The failure to call her father in relation to the alleged engagement and/or any one of the persons who allegedly sent engagement cards.
98.The failure to cross examine [Ms E] whose clear evidence the Applicant had known about since 17 April 2020 which corroborates the Respondent’s contentions. Again, compare that with the Respondent who called [Ms E] and waived professional privilege to call [Ms D]. There is no evidence that would show [Ms D] was not an honest and truthful witness and the position concerning surrounding the obtaining of instructions from the Respondent were consistent with the Respondent’s contentions.
99.The less than convincing attempt by the Applicant to establish a genuine family dynamic involving the Applicant, the Respondent and the child [F]. The attempt by the Applicant to indicate that [F] was a part of her household was contradicted in the very document the Applicant attempted to rely on, namely the DHHS Report, and when confronted with the entirety of that report, the Applicant said it was “all lies and crap”.
100.The Court cannot ignore or place little weight on the fact that during the Applicant’s alleged period of co-habitation, that she or Victoria Police on her behalf, took out Intervention Order Applications against the Respondent by way of a Safety Notice dated 28 January 2017 to prevent the Respondent from being within 200 metres of her residence, that being [R Street, Suburb B]. A Final Intervention Order was made against the Respondent on 18 October 2017 with the Respondent not to go within 200 metres of [R Street, Suburb B], and that restriction is in place until 2039.
101.In addition, the Respondent as a result of breaching Intervention Orders was imprisoned for about 11 months between 2017 and 2018. This is inconsistent with the parties being in a genuine de facto relationship. This submission receives corroboration from the Applicant who indicated to the Respondent by way of letter headed 17 June 2017 they “had nothing” and,
“FRIENDSHIP is all we can BE”. (Emphasis added)
102.Thus on the totality of the facts and given the required standard of proof the Applicant must meet, the Court could not find that the Applicant or Respondent meet the criteria under section 4AA(1),(2) and (3) and the Respondent is accordingly entitled to a declaration that the parties did not reside in a de facto relationship between January 2014 and 7 October 2018.

As I indicated to Counsel at the outset of the hearing in November 2021, the Court would adopt the same approach to objections to evidence as in Bannister v Pergolesi [2018] FamCA 888 (see paragraphs [28]-[29]). There was no demurrer to this proposal. Therefore, to the extent that the respondent’s submissions also contained objections, there is no need or warrant to do differently now.
The respondent’s submissions were also critical of the applicant for her failure to call witnesses who could corroborate her claims. The respondent also relied on the decision in Jones v. Dunkel & Anor (1959) 101 CLR 298 in terms of the applicant’s unexplained failure to call her mother about issues concerning her son and the engagement cards (see submissions at paragraphs [84] & [90]).
As noted in those submissions, the applicant, during her evidence, had referred to what she said her mother could say on those issues. No explanation was given for the failure of the applicant to call her mother as a witness. Quite obviously, this evidence may have been corroborative of the applicant’s position. It follows, without such explanation for her absence, that it is open for me to draw an inference that her mother’s evidence might not have assisted the applicant’s case. However, that of itself is hardly fatal to the applicant’s case.
The respondent relied on a number of documents that showed the applicant had made different statements to those made in these proceedings.[45] Where a party made representations of fact to a third party and has gained an advantage from doing so, it is open to the Court in subsequent proceedings to decline to accept from that party that which contradicts those representations. However it is always a matter of discretion depending on the facts and circumstances of each case.[46]
[45] see for example, Exhibits R2, R3 & R4
[46] see Elias v Elias (1997) FLC 90-267 see also discussion in Henry v Cuso [2022] FedCFamC1F 190 at [56] to [63]
The applicant did make representations to various entities as to her address and that she was not in a de facto relationship which, if her case is to be accepted, were false. This issue does the applicant no credit at all and is contrary to the obligation to make truthful declarations to authorities, particularly when the applicant stood to and did make financial gains as a result.
I considered whether this fact should be determinative of the issue however having regard to the unusual and unique circumstances of this case I shall not do so. In my view, to elevate these representations over all of the other facts in these proceedings would elevate one factor to prominence when a consideration of the multiple factors set out in the Act is mandated. I have however, factored these false representations into my consideration.
It is now necessary to turn to a consideration of the relevant factors in light of the evidence and the submissions of the parties. Before commencing that analysis, it is appropriate to record that the Court’s focus on the evidence was not directed to determining the full extent of the competing contributions (both financial and non-financial) as would be the case when hearing a property adjustment action – but rather the more narrow examination of evidence offered which the applicant asserts establishes the jurisdiction of this Court. The submissions made by the respondent have been considered with this in mind.
Consideration
I accept the applicant is genuine in her belief that she and the respondent had a de facto relationship. I also accept that the respondent now says he considered himself to be in a boyfriend and girlfriend relationship. However, as the authorities set above make clear, what the parties consider their relationship to be is not however the basis upon which matters of this type are decided.
Relevant circumstances under s.4AA(2)
(a) the duration of the relationship;
I note the evidence of the parties that they had known each other since 2009. The applicant’s position was the parties were in a de facto relationship from January 2014 to October 2018. The respondent denied that the parties were ever anything more than boyfriend and girlfriend, it was off and on and this also changed depending on whether he was or was not in jail.
On a consideration of the circumstances of the parties’ relationship in light of the evidence and in line with the s.4AA factors, I do not consider it would be open to me to make a finding that the relationship was of the requisite de facto nature prior to the end of 2014 or the beginning of 2015. There was then a break in January 2016 until May before the parties (around the time they travelled to Queensland) resumed their relationship until August 2016. The separation did not last long and the parties quickly resumed the relationship the following month this time until January 2017. Finally, the parties off and on relationship resumed in January 2018 until October 2018.
I accept that the relationship was interrupted in an intimate sense by the periods of time the respondent spent in jail. However, even on his own evidence after release the parties quickly resumed sexual relations and (again even on the respondent’s own evidence) he resided (albeit for a time) with the applicant after his release.
(b) the nature and extent of their common residence;
As noted earlier, the respondent was at pains to point out that he estimated the parties did not have a common residence for more than 12 weeks. However, this does not heighten the import of this factor to the status of a ‘necessary precondition’ for the establishment of a de facto relationship or otherwise overstate its weight beyond what is provided in s.4AA.
I cannot ignore the clear legislative direction provided at s.4AA(3) that no particular finding of any circumstance is necessary in deciding the existence of a de facto relationship, and in fact common residence is in no way a necessary feature for the finding that the parties were engaged in a de facto relationship. Certainly, in Fairbairn & Radecki (supra) the High Court of Australia said:
Living together for the purposes of s 4AA(1) will often, perhaps usually, mean cohabitation of some residence by a couple for some period of time. But cohabitation of a residence or residences is not a necessary feature of "living together". That phrase must be construed to take account of the many various ways in which two people may share their lives together in the modern world. Two people, for any number of reasons, may not reside in the same residence, but nonetheless be in a de facto relationship in the sense required by s 4AA.
(…)
The language of s 4AA of the Act and its reference to "living together" requires no different approach to determining whether a relationship exists of the kind defined. "Living together", consistently with authority, should be construed as meaning sharing life as a couple. Section 4AA does not prescribe any way by which a couple may share life together. Its language is sufficiently broad to accommodate the great variety of ways a de facto relationship may exist. That conclusion is supported by the varied factors listed in s 4AA(2). In a given case, some of the factors listed in s 4AA(2) may be relevant and some may be irrelevant; inevitably some may have greater prominence than others… In particular, s 4AA(4) is a statutory recognition that what may constitute a genuine de facto relationship is not be determined in the same way in every case by reference to rigid criteria that must always be satisfied. In that respect, the language of s 4AA(2)(b) does not assume that every de facto relationship must have a "common residence" to some "extent" and of some "nature". Such a construction is entirely denied by s 4AA(3).
Whilst the respondent appeared to be more confident (when stating in relation to particular periods of time) that he only stayed for days or weeks at or with the applicant, there is no requirement that the parties physically live together all the time or even the majority of the time. Moreover, the respondent did not dispute evidence that the applicant relied on such as how he treated (by leaving goods and other personal items) at the applicant’s residence and treating it as if it was his own.
(c) whether a sexual relationship existed;
Inevitably, the usually private nature of sexual relations means the frequency of intimacy is rarely capable of corroboration. However, on both parties’ evidence, there was sexual intimacy during the relationship. I accept that the sexual relationship was interrupted in an intimate sense by the periods that the respondent was in jail.
However whilst the applicant’s evidence in respect of historical recollection, on this issue at least, is more likely to be satisfactory than that of the respondent, consistent with the respondent’s own evidence in cross examination, it seems that the sexual relationship at all relevant times was monogamous (or as the respondent himself described it “exclusive”).
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
It was not disputed that the parties entered into property transactions together. However, for transparent reasons, each sought to put a different gloss on the reasons for this. There was ample evidence that the applicant provided financial support to the respondent particularly when he was in jail and the respondent through his “cash business” did the same to the applicant.
(e) the ownership, use and acquisition of their property;
It is not controversial that the parties owned property together. The respondent’s explanations for why the applicant’s name appeared on the associated documentation was tantamount to him saying that was the case to ‘keep the peace’ to pacify or placate the applicant. I am not satisfied that’s the case.
Moreover, whilst the reason for this was disputed it is important to note (for the purposes of this consideration) the contemporaneous photos attached to the applicant’s affidavit indicate this was how the parties treated (or used) whatever property they stayed in.
It should be remembered that aside from the activities that the respondent engaged in which brought him to the attention of police, he also carried out construction work (including at the applicant’s father’s property in Queensland when he went there with the applicant). The evidence of the respondent despite his attempts to minimise the time he said he actually spent with the applicant made clear that the parties made their residences available to the other, as needed.
There is also evidence (beyond the property that the parties owned together) of the applicant making financial and non-financial contributions for the benefit of the respondent. The applicant no doubt believed that by doing this she was making a contribution to a joint future. It was a belief founded in hope and the implied representations (caused by the acquiescence and conduct) of the respondent.
(f) the degree of mutual commitment to a shared life;
The parties did some things together which might be considered to be evidence of a mutual commitment to a shared life. Aside from being arrested together (albeit early in their relationship), they travelled together (including with the applicant’s son), visited and spent time (as a couple) including with the applicant’s father.
The applicant, I am satisfied, honestly felt that she and the respondent were in an exclusive relationship. The respondent’s oral evidence appeared to be tailored to minimise the likelihood that he had a commitment to shared life. There is however, the matter of the respondent having the applicant’s name tattooed on the back of his neck.
The applicant’s evidence in cross examination on this was notable when she said:
…he got that tattoo so that I could feel confident in the fact that, Well, why would you want to be married to man with another woman's name tattooed on the back of his neck?[47]
[47] Transcript 22 November 2021, P-71 Line 20-23.
The respondent’s submissions criticised the evidence that the applicant relied on (of inter alia the engagement cards) and pointed to not only an absence of material from him to her and the failure of the applicant to call corroborative witnesses. There is of course, also the possible explanation that the respondent’s actions could have been the cunning actions of someone who wished to enjoy all the fruits of a de facto relationship but hide it from the world. However, it is more likely (given his own evidence) that he was content to allow the applicant to think (and to tell others) he wanted to be the partner she wanted.
The applicant supported the respondent during times he was in jail and this is revealed by the exchange of cards of affection, the interactions by telephone while the respondent was in jail and the arrangements the respondent himself made for the applicant to attend to bills etc. whilst he was detained at Her Majesty’s pleasure.
The continued support of the respondent by the applicant whilst he was in prison attests to the continuing commitment of the parties to a relationship. Whilst I concede it may just have been convenient for the respondent to have someone on the outside looking after him during that time, he never said as much.
The applicant’s affidavit contained a number of photos recording various moments during what she said was the parties de facto relationship including (the second) one (below) labelled “Family fun xo”
[various images of family members omitted]
(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’ relationship was not registered under a prescribed law.
(h) the care and support of children;
There was no child of the relationship. However, each of the parties had a child or children (in the respondent’s case) from a previous relationship.
The evidence allows for the finding that the applicant did some things for and with the respondent’s children such as entertain them and pick them up and drop them off because she was on hand to do it. Nevertheless, there is nothing to suggest that the applicant’s care and support of the children was significant or was relied on by the respondent. However, the same could not be said in relation to the respondent and the applicant’s child.
It was the applicant’s case (and I accept) that during the time the parties were in a de facto relationship that the respondent assumed the position (albeit I find only by his presence) of something like a father figure for her child. Despite what at least one of the following contemporaneous photos would suggest, at face value, it was the respondent’s evidence (which I don’t accept) that when he was spending time with his children the applicant “just turned up”.[48]
[48] Transcript 23 November 2021 P-114 Line 15
(i) the reputation and public aspects of the relationship.
The respondent contended that the parties did not hold themselves out as a couple in public however I find that the parties demonstrated they were a couple when they attended together at social functions (and the respondent was content to allow this).
One example, drawn from the many contemporaneous photographs annexed to the applicant’s affidavit is sufficient to illustrate this point.
[various images of the parties omitted]

There is a strong flavour in the evidence that the applicant would have liked to be married but the respondent was never willing to commit to doing so. I cannot rule out the possibility that the respondent said things to the applicant which were equivocal (whilst she did not hear them as such).
However, I am satisfied that the applicant hoped and perhaps even believed that she and the respondent would have a future together as a married couple and that this hope or belief had some foundation in things the respondent said to her (both by his words and his actions).
From his own evidence it must have been obvious to the respondent that the applicant wanted much more from the relationship than he said he was willing to give. In light of this, his decisions to allow her to do the things she did for him (including when he was detained at Her Majesty’s pleasure) could be considered odious behaviour. However, given why he was there he probably either did not know any better or it was convenient.
I consider the evidence (such as it is) of the volatility of (or breaks in) the parties’ relationship to be merely a feature characteristic of their union as a couple which does not of itself and independent from a view of the other circumstances of the relationship, detract from the seriousness of the relationship and the parties’ level of commitment to one another.
I am also prepared to give weight to the parties’ presentation as a couple during their frequent holidays. From the commencement of their relationship, the parties travelled together and continued to do so up until 2018.
Notwithstanding the respondent’s attempts to downplay this aspect of his relationship with the applicant, the evidence of his former solicitor in cross examination belied his attempts to do so.
Conclusion in light of relevant considerations
Every fact scenario Courts are confronted with when asked to determine whether parties were in a genuine domestic relationship is different. This case throws up many strange facts. As the Act provides (see s.4AA(3) and (4)) no particular finding is determinative and weight has to be applied to such matters as may be seen appropriate.
I find that during their relationship the parties offered each other not only drugs and sex but love and support, spoke about marriage, lived together in each other’s residences from time to time, held themselves out to be in a domestic relationship to family and friends, supported and cared for the applicant’s child, were involved in family activities, holidayed together as a family and provided each other financial assistance.
In coming to that conclusion I have taken into account the evidence of the parties about the presence of family violence between the parties in the context of whether the relationship meets or continues to meet (at the relevant times) the statutory definition.[49]
[49] see Mayson & Wellard [2021] FamCAFC 115 at [35]
Balanced with the facts suggestive of the contrary, which I have discussed in these reasons, I consider the parties’ relationship satisfies the test set out in s.4AA on a consideration of:
·the regular and ongoing (though limited) time the parties spent sharing a residence;
·the (exclusive) sexual nature of the relationship;
·the applicant’s financial assistance to the respondent and vice versa;
·the use made by the applicant of the respondent’s property and vice versa;
·the appearance (including by conduct the respondent was involved in) of the parties’ mutual commitment to a life together;
·the public display of the parties’ relationship as a single unit to friends and family; and
·the letter of the respondent’s former solicitor to the applicant.
In summary, having regard to the above evidence, the Court is satisfied, on the balance of probabilities, having regard to all the circumstances of the parties’ relationship, they had a relationship as a couple living together on a genuine domestic basis for at least two years and they were in a de facto relationship during that period, comprised by the aggregation of the following periods:
(e)from January 2015 to January 2016;
(f)from May 2016 to August 2016
(g)September 2016 to January 2017; and
(h)January 2018 to October 2018.
The Court will declare that a de facto relationship existed between the Applicant and the Respondent for a period of at least two years and comprising the periods:
(a)from January 2015 to January 2016;
(b)from May 2016 to August 2016
(c)September 2016 to January 2017; and
(d)January 2018 to October 2018.

Given the evidence led at the hearing, the parties were invited to address in submissions whether, and if so what, action should be taken in relation to a potential Centrelink and/or taxation offences. Having had an opportunity to consider the submissions made on behalf of the parties I accept there would be no utility in any referral given the lack of specificity, that any offences would have been historical and that otherwise they may have already been dealt with in another forum.
Conclusion
For all the foregoing reasons, I am satisfied that the parties were in a de facto relationship within the meaning of s.4AA of the Act for a period of at least two years during the period set out in paragraph 124 above. Accordingly, a declaration is made pursuant to s.90RD(2) of the Act in terms set out above.

I certify that the preceding one hundred and twenty-six (126) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Sullivan.
Associate:
Dated: 28 July 2022

File number(s):	MLC 542 of 2020
Judgment of:	JUDGE O'SULLIVAN
Date of judgment:	28 July 2022
Catchwords:	FAMILY LAW – Property – de facto property – where applicant seeks orders adjusting property interests – respondent seeks dismissal of application and declaration that parties never in a de facto relationship – threshold hearing to determine jurisdiction.
Legislation:	Evidence Act1995 (Cth), ss.128, 140 Family Law Act1975 (Cth), ss. 4AA, 90RD, 90SM
Cases cited:	Bannister v Pergolesi [2018] FamCA 888 Elias v Elias (1997) FLC 90-267 Fairbairn v Radecki [2022] HCA 18 Henry v Cuso [2022] FedCFamC1F 190 Herford & Berke (No 2) (2019) FLC 93-919 Jonah v White [2011] FamCA 221 Jonah & White [2012] FamCAFC 200 Jones v. Dunkel & Anor (1959) 101 CLR 298 JRR v PH [2005] QSC 253 Lynam v Director-General of Social Security (1983) 52 ALR 128 Mayson & Wellard [2021] FamCAFC 115 Moby v Schulter [2010] FamCA 748 Rooks & Padley [2014] FamCA 444 Sinclair v Whittaker (2013) FLC 93-551 Taisha & Peng [2012] FamCA 385 Vaughan v Bele [2011] FamCA 436 Zau v Uongh [2013] FamCA 347
Division:	Division 2 Family Law
Number of paragraphs:	126
Date of last submission/s:	27 May 2022
Date of hearing:	22 & 23 November 2021 (via Microsoft Teams)
Place:	Melbourne (via Microsoft Teams)
Counsel for the Applicant:	Mr Tatarka
Solicitor for the Applicant:	Lennon Lawyers
Counsel for the Respondent:	Mr Dixon QC
Solicitor for the Respondent:	White & Mason Lawyers

MLC542 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS PETHRICK Applicant
AND:	MR FOLMAR Respondent

order made by:	JUDGE O'SULLIVAN
DATE OF ORDER:	28 July 2022