Potts and Provis
[2017] FCCA 1701
•11 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| POTTS & PROVIS | [2017] FCCA 1701 |
| Catchwords: FAMILY LAW – De facto relationship – declaration sought by applicant – declaration that de facto relationship existed. |
| Legislation: Family Law Act 1975 (Cth), ss.4AA, 4AA(2), 44(6), 90RD, 90RD(1), 90RG and Part V11IAB |
| Cases cited: Jonah & White [2011] FamCA 221 Jones v Dunkel (1959) 101 CLR 298 |
| Applicant: | MS POTTS |
| Respondent: | MR PROVIS |
| File Number: | ADC 1045 of 2016 |
| Judgment of: | Judge Heffernan |
| Hearing date: | 22 May 2017 |
| Date of Last Submission: | 26 May 2017 |
| Delivered at: | Adelaide |
| Delivered on: | 11 August 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Bowler |
| Solicitors for the Applicant: | Mellor Olsson |
| Counsel for the Respondent: | Ms C Smith |
| Solicitors for the Respondent: | Wadlow Solicitors |
ORDERS
It is declared that a de facto relationship existed between the applicant and the respondent.
The period of the de facto relationship was from (omitted) 2009 until 25 March 2014.
At all relevant times, the applicant and respondent were resident in South Australia.
IT IS NOTED that publication of this judgment under the pseudonym Potts & Provis is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 1045 of 2016
| MS POTTS |
Applicant
And
| MR PROVIS |
Respondent
REASONS FOR JUDGMENT
This is an application for a declaration pursuant to s.90RD of the Family Law Act 1975 (Cth) (‘the Act’) that the parties were in a de facto relationship from (omitted) 2009 to 25 March 2014. In the event that the Court finds that a de facto relationship did exist, but that it ended in May or June 2013, then the applicant seeks an extension of time in which to bring these proceedings pursuant to s.44(6) of the Act.
The proceedings in this matter were filed on 24 March 2016.
The respondent opposes the declaration being made; he says that there was at no time a de facto relationship in existence; and seeks that the application be dismissed. In the event that the Court finds that a de facto relationship did exist, but ceased on or about May or June 2013, when the applicant moved out of the respondent’s premises at Property A, then the respondent opposes an extension of time in which to bring proceedings and seeks that the application be dismissed.
Background and chronology
There is no dispute between the parties that a relationship of some sort existed between them. The respondent acknowledges that the relationship extended to having sexual relations on many occasions. Much of the background to this matter is not disputed. I will set out the non-contentious aspects of the chronology.
The applicant was 51 years old and the respondent 69 years old at the time of trial. At all material times the respondent has worked as a (occupation omitted) through his business (business omitted). The applicant has two adult children from her first marriage, Mr A, who is 26 years old, and Ms M, who is aged 24 years. The parties met at some time in 2001. Between June and December 2005, the applicant worked for (business omitted) from the respondent’s home in Property A. The applicant was in a relationship with an (nationality omitted) national, Mr L, at that time. Mr L was temporarily a resident in Australia. The applicant and Mr L married in (omitted) 2005. Mr L made an application for permanent residency but was required to leave the country whilst that was processed. The applicant travelled with him to (country omitted) to await the outcome of that process. The applicant returned to Australia by herself in (omitted) 2006.
At some time in early 2007, the applicant started working part-time in the respondent’s office (employment omitted). In (omitted) 2007, the applicant started to work full time with (employer omitted), but continued to perform some (omitted) work for the respondent. She separated from Mr L in late 2008. At some time in 2008, the relationship between the parties became intimate. The applicant’s employment with (employer omitted) ended at some time in (omitted) 2008.
In (omitted) 2009, Mr L’s application for Australian residency was refused, the applicant having withdrawn her sponsorship. In (omitted) 2009, the applicant moved into the respondent’s Property A home with her daughter, Ms M. The basis on which she took up residence at the respondent’s house is one of the central issues in this matter. Her son made the decision to reside with a grandparent.
Between (omitted) 2009, the applicant was employed by (business omitted). When her employment with that organisation ceased, she established a business called, (business omitted).
In early 2010, an office premises on Property B, in Property B was purchased in the name of the respondent. The applicant operated her business from these premises. In relation to finance for the purchase of that property, the applicant signed a deed of guarantee[1] in favour of the (omitted) Bank with respect to all amounts owed by the respondent pursuant to a credit contract for credit of $530,000. She guaranteed the full amount of $530,000.
[1] Exhibit A10.
The applicant’s divorce from Mr L was finalised in July 2010, pursuant to a Divorce Order that was made in (country omitted).
During the course of their relationship, the applicant and the respondent went on several holidays together. I will not summarise all of them. It was not disputed that the majority of airfares, accommodation and meals were paid for by the respondent. It seems that the applicant’s financial contribution to these holidays was very minimal.
They travelled to (country omitted) together in 2009 for about 4 weeks. The applicant says that they fell in love with the island of (country omitted) and agreed to consider buying a holiday house there. The applicant says she engaged a (nationality omitted) lawyer to arrange for her to have a (nationality omitted) tax file number to facilitate any future purchase.
In (omitted) 2012, the parties travelled to Sydney together and spent a couple of days with the respondent’s cousins prior to taking a cruise for one week to (country omitted). The parties took their respective children with them on this cruise. The applicant and the respondent then holidayed for a period of just under one week in (country omitted) in (omitted) 2012. This was followed by a holiday in the (country omitted) between (omitted) 2012 and (omitted) 2013.
In about (omitted) 2012, the applicant relocated her business from Property B, to (omitted).
In (omitted) 2013, the applicant’s first ex-husband died. As I have noted, her son Mr A had not been living with her but the aftermath of his father’s death raised the question of whether it was preferable for him to live with his mother. It was the applicant’s desire that he should do so. It is acknowledged by both parties that the respondent did not have a good relationship with the son.
In (omitted) 2013, the applicant and her daughter moved out of the respondent’s Property A home and into a rental property with Mr A. The applicant says her relationship with the respondent continued as before, with the parties living apart. The respondent denies this.
In (omitted) 2013, the parties travelled together for approximately four weeks to (country omitted). An apartment was purchased in (country omitted) with settlement occurring in about (omitted) 2013. A second (country omitted) apartment was purchased in about (omitted) 2013. The applicant says she registered a business name for the apartments and the respondent does not dispute that the applicant set up a PayPal account to deal with rental monies.
The parties attended counselling with Dr T in January and February 2014 for two sessions. The applicant says that final separation occurred on 25 March 2014. In May 2014, the parties attended mediation with mutual friends, Mr B and Ms K.
In (omitted) 2015, Ms F moved in to the respondent’s house at Property A.
The applicant contends, and the respondent strongly disputes, that there was a de facto relationship in existence between the time at which the applicant moved into the respondent’s Property A home and 25 March 2014. The respondent says that at all times when the applicant was living in his home, she and her daughter were tenants. He says that he had a friendship with the applicant and acknowledges that they had casual sexual relations, but that the relationship between them fell far short of the mutual commitment and understanding that would be required for it to be classified as a de facto relationship.
The law
Section 4AA of the Family Law Act 1975 (Cth) (‘the Act’) defines de facto relationships as follows:
“Meaning of de facto relationship
(1)A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b) the persons are not related by family (see subsection (6)); and
(c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has effect subject to subsection (5).
Working out if persons have a relationship as a couple
(2)Those circumstances may include any or all of the following:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h) the care and support of children;
(i) the reputation and public aspects of the relationship.
(3)No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4)A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
(5)For the purposes of this Act:
(a) a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and
(b) a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.”
The Act provides for a declaration to be made as to the existence or otherwise of a de facto relationship. In this regard, s.90RD(1) says:
“(1) If:
(a)an application is made for an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL; and
(b)a claim is made, in support of the application, that a de facto relationship existed between the applicant and another person;
the court may, for the purposes of those proceedings (the primary proceedings), declare that a de facto relationship existed, or never existed, between those 2 persons.”
No single circumstance under s.4AA(2) of the Act is essential before a declaration can be made. The approach to determining if a de facto relationship exists was described by Murphy J in Jonah & White[2] as follows:
“59.In that respect it seems to me also instructive that the Commonwealth legislature did not provide for relief of that type in circumstances where two people were parties to, for example, a “domestic relationship”, or, as in New South Wales, a “close personal relationship” but, rather, only where parties were in a “de facto relationship” as defined.
60.In my opinion, the key to that definition is the manifestation of a relationship where “the parties have so merged their lives that they were, for all practical purposes, ‘living together’ as a couple on a genuine domestic basis”. It is the manifestation of “coupledom”, which involves the merger of two lives as just described, that is the core of a de facto relationship as defined and to which each of the statutory factors (and others that might apply to a particular relationship) are directed.”
[2] Jonah & White [2011] FamCA 221 at [59]-[60].
His Honour went on to summarise that it was the “nature of the union” between the parties that lies at the heart of the non-exhaustive statutory consideration[3] rather than simple questions such as how much time the parties spent with each other.
[3] Ibid at 60.
In order to make a declaration as to the existence of a de facto relationship, there is a geographical requirement to be met. Section 90RG states as follows:
“A court may make a section 90RD declaration only if the court is satisfied that a person referred to in paragraph 90RD(1)(b), or both of those persons, were ordinarily resident in a participating jurisdiction when the primary proceedings commenced.”
The evidence
The applicant relies on the following:
a)The applicant’s affidavits of 24 March 2016; 16 June 2016; and 28 April 2017;
b)Affidavit of Ms M filed 17 November 2016;
c)Affidavit of Mr B filed 16 June 2016;
d)Affidavit of Ms K filed 16 June 2016;
e)Affidavit of Ms S filed 16 June 2016; and
f)Affidavit of Ms A filed 16 June 2016.
In addition, the applicant relied on the evidence given at trial by Dr T.
All of the applicant’s witnesses and the applicant were cross-examined by counsel for the respondent.
The respondent relies on the following:
a)The respondent’s affidavit dated 26 November 2016;
b)Affidavit of Mr P filed 29 June 2016;
c)Affidavit of Mr T filed 29 November 2016;
d)Affidavit of Mr N filed 29 November 2016;
e)Affidavit of Mr G filed 29 November 2016;
f)Affidavit of Ms H filed 29 November 2016;
g)Affidavit of Mr J filed 29 November 2016; and
h)Affidavit of Ms F filed 29 November 2016.
All of the above witnesses for the respondent, and the respondent himself, gave evidence and were cross-examined by counsel for the applicant.
The applicant’s case
Evidence of Ms Potts
The applicant gave her evidence in a straight forward manner. She did not appear to exaggerate and did not obfuscate in cross-examination.
The applicant says that she formally started working for the respondent on a (occupation omitted) basis at the beginning of 2007. At that time she was responsible for his booking keeping, submitted his business and personal BAS statements, and attended to taxation matters. She also claims to have recruited two new part-time staff and trained them. She commenced a full time permanent job on (omitted) 2007 but on her case, continued (omitted) work for the respondent after hours. She says that by the end of 2008, she was in a romantic relationship with the respondent who accompanied her to her work Christmas dinner. That year she accompanied the respondent to his sister’s house for Christmas Day lunch and says that the respondent introduced her to his family as his partner.
She says that she was introduced to the respondent’s children in (omitted) 2009. The applicant says that she started a new full time job on (omitted) 2009, but that she continued to work at the respondent’s business. However, given they were in a romantic relationship, she did not feel comfortable charging him for her time and says that from the beginning of 2009 she did not invoice the respondent for any of the work that she personally did.
By this stage, the applicant says that they were doing everything within the business for rental properties and outside of work as a couple. The applicant says that she assisted the respondent with a house warming party at Property A in (omitted) 2009. This was attended by his family and she did most of the preparation work for the party.
The applicant says that she introduced the respondent to her family and friends as her partner at a barbeque at her home in (omitted) in (omitted) 2009. At this time, on her account, the respondent was spending some nights at her house and she was spending some time at Property A whenever her children were staying with their father. She says that during the 2009 summer heat wave, the respondent stayed at her house because he had no air conditioning at Property A.
It is the applicant’s case that when she was advised that her lease at the (omitted) house would not be renewed in about (omitted) 2009, that the respondent asked her to move in with him because it was inevitable that they would one day live together. She says that the respondent told her that a room could be renovated for her daughter and that a room could be renovated for her son to use whenever he wanted to. She says that the respondent did not ask her to pay rent or board because she was working in his business and not being paid.
On the applicant’s case, her things were moved into the Property A house in (omitted) 2009. They used her bedroom suite in the main bedroom and the respondent’s brass bed was relegated to a guest room. They shared the main bedroom. The applicant also moved in her children’s furniture and her refrigerator. Because the respondent was not keen on her taking larger items of furniture, she donated a number of these to friends, Anglicare, and the Salvation Army. Throughout (omitted) 2009, she and the respondent painted the walls and changed the door handles of her daughter’s bedroom. She says that when she moved into Property A in (omitted) 2009 it was her suggestion that they should obtain pre-nuptial financial advice and that the respondent agreed. On her account, they agreed that whatever the respondent owned before the relationship would belong to him, and anything they purchased together would be registered in their joint names and shared equally. She says that she met with the respondent’s solicitor in the second half of 2009, and it was indicated to her that a draft would be prepared. She did not receive such a document and has not signed any financial agreement.
On the applicant’s case, the respondent initially told her that he had left her $5,000-$10,000 in his Will. A couple of years into the relationship, he told her that he would change his Will to leave her a mortgage free house. He also told her that he would appoint her as executor of his estate.
Throughout the relationship when properties were being purchased for the property portfolio, they were always placed in the respondent’s sole name to minimise costs and tax. She did not object to this.
The applicant says that between (omitted) 2010 and (omitted) 2011, she paid approximately $100 per week off the mortgage of the Property A home because she had some spare funds from a redundancy payout. This was not rent. She also purchased a $2,000 (omitted) for the outdoor entertaining area at Property A. She says that they installed it together over one weekend.
With respect to the renovations at the Property A property, the applicant says that it was intended to do a number of different jobs and to that end she prepared a renovation job list for the property. This was annexed to her affidavit of 15 June 2016. It assigned different jobs to each of the parties, and some jobs to be done together.
The applicant says that from the day she moved into the Property A property, she did all the cooking, washing, ironing and cleaning for the respondent and that he looked after the garden and swimming pool.
At the beginning of (omitted) 2010, the applicant says that she found an investment opportunity to purchase six units at (omitted). She says that the respondent agreed to this. A copy of the contract for the sale of that property was annexed to the applicant’s affidavit of 15 June 2016 and shows that the sale contract was in joint names. Ultimately, the applicant says that on advice from an accountant, the property was purchased in the respondent’s name only using an existing trust.
The applicant says that throughout the time she lived at Property A she and the respondent conducted themselves as a couple. A schedule of some of the events and functions they attended at as a couple was annexed to her trial affidavit as Annexure P-52.
I accept her evidence as to the commencement of the relationship and the circumstances in which she and her daughter came to move from their rental accommodation in (omitted) and into the respondent’s house at Property A. I accept her evidence that during the period of time in which she resided at Property A, she shared a bedroom with the respondent and that at the time she moved in, they commenced cohabitation, rather than a relationship of landlord and tenant. I note that her evidence in this regard was supported by her daughter, Ms M, and Mr B and Ms K. I will refer to their evidence later in these reasons. I accept the evidence of the applicant that she continued to sleep in the same bedroom as the respondent for the entire time that she and her daughter lived at Property A, a period of approximately 5 years, and that her sexual relationship with the respondent continued during that period.
The fact of a sexual relationship and the length of time spent under one roof are of course not of themselves determinative of whether the parties could be said to be in a de facto relationship. There are other aspects of the applicant’s evidence, which I accept, which all support an inference that when the parties were living together at Property A, they were in a relationship as a couple living together on a genuine domestic basis. I accept the evidence of the applicant that at about the time she moved in with the respondent, he arranged for her to see his solicitor for the purpose of giving instructions on a prenuptial agreement. I accept that no such agreement transpired because as the applicant herself stated, the respondent appeared not to follow up on this issue with his solicitor. The applicant was corroborated in this regard by the evidence of her friend Ms K. It is also highly relevant and consistent with both the financial dependence of the applicant on the respondent, and their degree of commitment to a shared life, that they holidayed together overseas frequently during the period of cohabitation, and indeed after the applicant had moved out of Property A. There was, as I have already noted, no dispute that the applicant travelled with the respondent almost entirely at his expense during these trips away.
Further, there is the evidence of the applicant as to the nature of her involvement with the respondent’s business and the provision of (employment omitted) services at no charge. I also accept the applicant’s evidence that the respondent did not charge her rent on the Property B business premises, or during the period of time that she resided in Property A. On the respondent’s evidence, the applicant was expected to pay rental of $150 per week whilst at Property A. He says that she paid for a few months only and yet he did not evict her when she stopped paying rent and did not send her a letter of demand when she moved out of his premises. He did not peruse the issues of her rent at any time prior to her moving out or during the second half of 2013. There is also the fact that the monies that were paid by the applicant in the early stage of cohabitation were paid by her directly onto the respondent’s mortgage account. I find the evidence of the applicant as to the non-payment of rent on both the Property A premises and the Property B business premises to be inherently more plausible than the version of the respondent. It is more plausible because of the fact of cohabitation, rather than a landlord/tenant relationship explains why the respondent did not follow up on her non-payment of rent and why she paid money directly onto the mortgage account.
It is entirely consistent with the arrangements made for the holidays that they took together and consistent with the observations of witnesses called by the applicant as to the public aspects of the relationship. However, I have not simply opted in this regard to rely on evidence that I prefer. The inherent plausibility of the applicant’s evidence as to why she was not paying rent is simply one aspect that strengthens my assessment that her evidence in this respect was honest and reliable. She was not paying rent, nor was she pursued for arrears of rent while she lived at Property A, because she was in a genuine domestic relationship with the respondent. Her payments towards the mortgage were contributions towards the mortgage in the respondent’s name that reflected her commitment to a shared life with the respondent at a time when she was in a financial position to be able to make some contribution to the mortgage.
It was not disputed by the respondent that the applicant agreed to go guarantor on his purchase of the Property B property. The applicant said, and I accept, that she had been integrally involved in the selection and purchase of this property and her willingness to guarantee the respondent’s liability in the amount of $530,000 was born of the fact that they were in a relationship living as a couple on a genuine domestic basis.
I accept the evidence of the applicant that at the time the parties attended on Dr D for counselling, and not long after that with Mr B & Ms K for informal mediation, the purpose of that counselling and mediation was an attempt to deal with issues arising from their relationship as a couple and specifically to address the question of the respondent’s difficult relationship with the applicant’s son Mr A. I note that the evidence of the applicant in that regard was corroborated by Dr D and both Mr B and Ms K. I reject the evidence of the respondent that the purpose of the counselling was simply to do with maintaining their friendship and that he was attending in an attempt to discuss and resolve the debts he says the applicant owed to him.
Evidence of Ms A
Ms A has been close friends with the applicant since 2001. She said that she had met the respondent at the end of 2008 when he started seeing the applicant. After the applicant moved into Property A with the respondent, she visited and had dinner with them on several occasions. In cross-examination, Ms A said that she would have visited the parties at Property A more than six times per year.
On the occasions she visited for dinner, Ms A said that the applicant always cooked. Ms A recalled a specific occasion when she went to the Property A premises for dinner at the end of 2009. The applicant took her to the master bedroom and showed her items she and the respondent had purchased shopping overseas, which included jewellery and home decoration items. Ms A said that the parties’ suit cases were not still fully unpacked.
On the first occasion she visited the house, she was shown around by both the applicant and the respondent and said that they both seemed keen to show her the residence and told her about their renovation plans. She saw that they were using the applicant’s bedroom furniture in “their bedroom” and she was told by them that they intended to use the respondent’s bed in the spare bedroom in order to set it up as a guest room.
Ms A initially met the applicant because of their shared love of (hobby omitted). During the course of the relationship the applicant stopped attending at (hobby omitted) and told her it was because the respondent was unwilling to learn how to (hobby omitted) and did not want to attend. Notwithstanding this, in December 2012, the applicant and the respondent attended together with the applicant’s daughter at the (omitted) and Ms A met them there at the event. Ms A also saw the applicant and the respondent attending as a couple at the 40th birthday party of a mutual friend of her and the applicant. She said they appeared to be there as a couple. In mid-2013, the applicant told Ms A that there was a significant issue in her relationship with the respondent because he was not willing to accept her son in his house. The applicant told her that it was for this reason that she moved out of the Property A property and rented a house with her children. The applicant told her that they intended to continue their relationship whilst living in separate residences.
In December of 2013, Ms A had a conversation with the applicant who was upset because she had discovered or believed that the respondent was communicating with an ex-girlfriend in (country omitted). Ms A also said that in March 2014, the applicant rang her to advise that the relationship was over and she observed that the applicant was quite upset. Ms A provided emotional support to the applicant during the period after the relationship ended when the applicant believed she was being harassed by the respondent.
She said that the applicant had complained to her about the lack of financial support the respondent had given to her after she moved out of the Property A premises.
In cross-examination, Ms A said that to her observations the respondent used to hold the applicant’s hand and call her “honey”. She said that she never heard the respondent tell the applicant that he loved her, but she had some recollection that at one stage the applicant had discussed with her the possibility of an engagement to the respondent but that the applicant stated she did not want to go down that path because they were having problems in the relationship.
Ms A told the Court that she knew that it was the applicant’s furniture in the master bedroom at Property A because she had seen that furniture in her previous house at (omitted). Her observation was that both parties had items in the master bedroom at Property A and both had their clothes stored in that bedroom.
Under cross-examination, Ms A said that to her observation, it seemed completely obvious that the parties were a couple because they were living together, making plans together, and spoke in terms of, “we are going to do this, we are going to do that”. She said that there was no question in her mind whatsoever that the parties were cohabitating in a de facto relationship.
Ms A said that the applicant was a very close friend and that they often spoke together about personal matters including the applicant’s relationship with the respondent. She recalls being told that the respondent was not open to the idea of her son moving into the family home in Property A.
I accept the evidence of this witness as both honest and reliable.
Evidence of Ms M
Ms M is the daughter of the applicant. She first met the respondent in about 2005 when her mother was working with him. In about 2008, the respondent started visiting their house regularly and spending more time with her mother, sometimes joining the family for dinner. By Christmas 2008, she said that her mother and the respondent were in a personal relationship. She recalled that during the first half of 2009, the respondent started spending the night at their house and slept with her mother in her bedroom. It was at about this time that he started attending all of their family gatherings, for example, her joint birthday party with her brother in (omitted) 2009. At about that time, she first met the respondent’s children at a dinner cooked by her mother at the respondent’s Property A house. She recalled that in (omitted) 2009, she was told by her mother that they were going to have to move house and it was at this point that her brother decided to live with their grandmother. The respondent asked them to live at his Property A house and said that he would renovate one of the bedrooms for her. This occurred and they moved into the house in mid-2009. Her mother and the respondent slept together in the same bedroom and they used her mother’s bedroom furniture.
Ms M said that her mother and the respondent did everything together, going out to dinner at least once a week and that she occasionally accompanied them. She also accompanied her mother and the respondent at a range of special events, such as (nationality omitted) dinner dances, Christmas lunch at the respondent’s sister’s house, 21st birthday parties for the respondent’s nieces, an engagement party for one of the respondent’s nieces, and similar events. She recalled that they would visit the respondent’s brother and sister regularly. On her account, the respondent’s family were friendly to them and welcomed them into their family.
Ms M recalled that there were a number of gatherings at Property A that included the immediate family and friends of both the applicant and the respondent. When the respondent’s cousins visited them from (country omitted), she recalled that both the applicant and the respondent prepared the guest room prior to their arrival. On her account, both the applicant and the respondent worked on the renovations to the Property A premises and investment properties.
From the time that they moved into Property A until they left, Ms M said that her mother did all of the cooking, washing, ironing and cleaning.
Ms M regarded the respondent as something of a father figure. She recalled that he gave her advice as a teenager and on one occasion told her off and gave her a talking to about smoking. In March 2011, Ms M said that the respondent asked her to represent the (nationality omitted) by laying a wreath for (country omitted) Holiday. She was told by the respondent that this was because none of his children were available, but that he regarded her as one of his children anyway.
With respect to the family cruise in 2012, Ms M said that her mother and the respondent took both her and her brother, and that the other members of the party were the respondent’s children and their families, the respondent’s sister and brother and their families. She said that they had dinner every night with the respondent’s daughter and her family.
Whilst doing a traineeship with her mother’s business, Ms M worked from the Property B office. She said that she saw her mother helping and doing work for the business of (business omitted), taking phone calls. After her mother’s business moved to (omitted), she said the respondent would visit two to three times per week and would bypass reception and walk straight into her mother’s office and ask for someone to make him a coffee. She heard conversations between them about tasks her mother had to complete for (business omitted) and other business ventures.
When the parties returned from overseas trips they would regularly both share photos and videos of the holidays and discuss them with her.
Ms M confirmed in general terms her mother’s account of how and why they came to move out of the Property A premises. After they left those premises, her mother stayed at Property A two to three times per week and the respondent also slept some nights every week at their new rental property at (omitted). The respondent would regularly eat dinner with them and her mother continued to go out to dinner with him.
On the return of the parties from (country omitted) in (omitted) 2013, Ms M recalled that the respondent told her that the apartment in (country omitted) was for all of them to use.
The respondent attended Ms M’ 21st birthday at (omitted) on (omitted) 2014 and it was very shortly after that that she heard from her mother that the parties had split up. After the split, and in the second half of 2014, her mother told her not to let the respondent into the office to see her.
In cross-examination, Ms M said that when she went to the respondent’s niece’s kitchen tea and hen’s party, the respondent was not present. She conceded that she did not spend much time with the respondent’s brother and sister, but that she had been to barbeques and similar events with his family at his Property A house. She told the Court that she did not pay much attention to the conflict between the respondent and her brother. She said that whilst they were living at Property A, there was no room in that house that her mother would sleep in other than the master bedroom. She said that her mother did not ever mention to her the prospect of marrying the respondent, and did not discuss her long term future with the respondent. She said that after they moved out of the Property A property, her mother told her that she would still be together with the respondent. She told the Court that when her mother told her that she did not want to see the respondent or speak to him at the office, that this was about 12 months or so after they had moved out of Property A.
Ms M gave her evidence in an even handed and straight forward manner. I accept her evidence as both honest and reliable.
Evidence of Dr D
Dr D saw the applicant and the respondent for the purpose of counselling on two occasions in January and February 2014. He assumed from the way the parties spoke to him and interacted that they were a de facto couple. He did not specifically enquire as to whether they had been living together, or about matters of sexual intimacy. Neither party specifically told him that they regarded the relationship as being that of de facto. His observation was that they seemed to be a couple like all couples he saw. He was told that they had been together for five years. The relationship as presented to him by the parties did not strike him as one of landlord and tenant and it was not suggested to him that it was. The main topic of counselling was the respondent’s difficult relationship with the applicant’s son. From the matters discussed and the presentation of the parties, they appeared to have an emotional attachment. He said that the respondent’s objective seemed to be that he wanted to reconcile with the applicant.
In cross-examination, Dr D said that he had not specifically asked if the five year relationship was one of boyfriend and girlfriend, or of a de facto nature. He had not been aware at the time of either consultation that the applicant had lived at Property A with the respondent and subsequently moved out. The evidence of Dr D was given in a straight forward manner and he presented as an objective witness. His evidence was not significantly damaged by cross-examination.
Evidence of Ms S
Ms S is the cousin of the applicant. She first met the respondent when she worked at (business omitted) for a brief period in 2005/2006. At that time the applicant was working with the respondent and offered her and her sister part-time positions with the respondent. The applicant trained them before leaving overseas. Ms S was aware that the applicant and the respondent were in a relationship and that the applicant was living at Property A. In (omitted) 2010, she invited them as a couple to her 40th birthday party. They were unable to attend. Ms S said that she would not have invited the respondent if he had not been in a relationship with the applicant.
Ms S indicated that she knew the relationship had ended in about March 2014 because it was at about that point that the applicant started communicating with her more and sharing with her the issues that she had with the respondent. The applicant also started socialising with her more frequently and with some of her single friends.
Ms S recalled that when the applicant held a 21st birthday party for her daughter in (omitted) 2014, the respondent and most of his family members did not attend. It was on that occasion that the applicant confirmed to her that the relationship with the respondent was definitely over.
In February 2015, the respondent contacted her and enquired as to whether or not she could help him get back together with the applicant. He told Ms S that he still loved the applicant. She raised the matter with the applicant and the applicant indicated that a reconciliation was not open.
In cross-examination, Ms S confirmed that she visited the house at Property A because when she worked for the respondent’s (business omitted), it was operating from that premises. She did not recall whether the applicant was living at Property A when she worked there. Ms S told the Court that she recalled attending a couple of social events with both the applicant and the respondent, one of which was at a restaurant at (omitted).
Ms S told the Court that she had not really discussed long term plans with the applicant, and the applicant did not ever mention marriage to her. She said that she thought the applicant had moved out of the Property A property in 2015. She did not know the exact date. She thought that they had been together for about nine years as a couple. At the time that she worked for the respondent, the only staff members were the respondent, herself, and her sister, as far as she was aware.
As a witness, Ms S did not appear to exaggerate and did not attempt to evade any of the questions put to her in cross-examination. She presented in a forthright manner and I accept her evidence.
She clearly contradicted her affidavit evidence by saying in cross-examination that she thought the applicant had moved out of the property at Property A in 2015, and on any version, her impression of the length of the relationship between the parties seems to be mistaken. Those matters do not cause me to doubt her honesty and her evidence was otherwise reliable as to her observations of the parties and her conversation with the respondent in early 2015.
Evidence of Ms K
Ms K gave numerous examples, both in the context of their professional lives, and their personal relationship, that corroborate the applicant’s evidence as to the nature of her relationship with the respondent. I will not summarise all of them.
Ms K is a very old friend of the applicant and the applicant is the Godmother of her daughter. She has known the respondent since 1995. In 1997, the respondent offered her a job at his business, (omitted). She worked there from 1997 until 2001. It was Ms K who introduced the applicant to the respondent. In early 2007, the applicant rang her and offered her a job with (business omitted). Ms K recalls that at that time the applicant was working with the company as a (occupation omitted). It was the applicant who arranged for the terms of Ms K’s employment and gave her her employment agreement. She only spoke to the respondent about the job on her first day at work. She was then trained by the applicant as an (occupation omitted). At about the same time, the applicant trained a second person as a part-time (occupation omitted).
Ms K worked for (business omitted) for 8 years between 2007 and 2015. During that time, she said the applicant was always her first point of contact for assistance with computer issues, payroll enquiries, book keeping issues, and similar administrative matters. Until such time as Ms K was properly trained, the applicant processed all of the weekly wages and prepared the quarterly BAS statements, as well as gathering all necessary documents for the respondent’s various companies and his personal tax. On Ms K’s account, the applicant was paid for her work with (business omitted) until such time as she started a personal relationship with the respondent at the beginning of 2009. Ms K knows this because she paid all of the accounts as part of her administrative duties and once the personal relationship began between the parties, she stopped receiving invoices for the applicant’s services. However, she noted that the applicant continued to perform all of the usual tasks she had been doing prior to that time.
The respondent told her in (omitted) 2009 that he had asked the applicant to move in with him. From that time, it was her observation that the applicant and the respondent “did everything together”. This included attending social events at her house as a couple. Significantly, she recalled the respondent once saying to her daughter, “I guess this now makes me your Godfather!” and concluded this was because the applicant was her daughter’s Godmother. Ms K remembers attending the 18th birthday party of Ms M and said that the guests included members of both the applicant’s and the respondent’s families.
With respect to the move made by (business omitted) to the Property B premises, the respondent told her that he wanted to assist the applicant with her (omitted) work, and for that reason, gave her the use of a small office at the back of the Property B premises.
On Ms K’s account, it was the applicant who looked after the financial arrangements for new properties as they were purchased. It was also the applicant who arranged for government funding to be obtained to train Ms K by getting a (omitted) certificate. The applicant and her staff members set up the “Mind Your Own Business” program for (business omitted). Ms K said that no charge was levied by the applicant for this work.
On more than one occasion, Ms K said the respondent mentioned to her that he would need to get his lawyer, Mr Wadlow, to advise about a prenuptial agreement.
Ms K confirmed that the applicant’s business started managing all of the properties in about 2010 and that the applicant would invoice only for work done by her assistant, but not for work that she did herself.
It was Ms K’s evidence that the applicant appeared to be actively involved in the various renovation projects associated with the properties purchased by the respondent, and that the respondent acknowledged this. She said that it was common for the respondent to speak with her about the ups and downs of his relationship with the applicant. Ms K’s impression was that the parties were regarded as a couple amongst their friends and community, and that it was sometimes assumed that they were married.
Ms K’s evidence was that the applicant had accessed all of the (business omitted) business bank accounts, the property investment bank accounts, and the respondent’s personal bank accounts, and conducted internet banking and credit card transactions. It was the applicant who was responsible for processing transactions for the purpose of property investments and to use the accounts to pay costs associated with their overseas travel.
Ms K became aware of the difficulties in the relationship between the respondent and the applicant’s son. To her understanding, the applicant continued her relationship with the respondent after she moved out of the Property A property in 2013. She said that the respondent told her he was not happy with the two house arrangement and complained that the applicant was not staying over at Property A as often as he would have liked. After the parties finally split, she said that the respondent confided in her that he would not have achieved as much in his business without the support of the applicant. On Ms K’s account, it was she who suggested that she and her husband could attempt a mediation between the applicant and the respondent. In her oral evidence, Ms K corrected a typographical error in her affidavit of 16 June 2016. She confirmed that the mediation occurred on 2 May 2014 and not 2015 as stated in that affidavit. The purpose of the mediation was not to try and coerce the respondent into starting a relationship with the applicant.
Ms K said that in August 2014, the applicant stopped managing the property portfolio for the respondent. She recalled that in September 2014 the applicant came to the respondent’s office and went through some of the “business information” for the property portfolio with her and the respondent’s son. The respondent was present at that meeting and became abusive towards the applicant, accusing her of lying and cheating.
In cross-examination, Ms K denied that her relationship with the respondent was affected after he spoke to her about using office equipment after hours to assist her daughter with her studies. There is no dispute on the evidence that the respondent did hold such a conversation with this witness and that he did warn her not to continue with the practice. She said that they continued to have a good working relationship after this incident and that she continued to work for him until (omitted) 2015. She denied that the applicant was working for the respondent during her time at the Property B premises, and said that the applicant was helping the respondent in part by assisting her when she required guidance. She said that when she was shown around the Property A property, the respondent indicated the bedroom and said words to the effect that “this is our bedroom”.
Ms K said that the applicant did not speak to her about long term plans or marriage to the respondent.
Ms K stated that she did not have access to the respondent’s bank accounts to use for her personal needs, and was not able to comment on whether the applicant used any of the respondent’s accounts for her own personal use.
As to the mediation, it was Ms K’s impression that the applicant’s son was not the main reason for the mediation, but rather it was simply an attempt to solve all of the issues between the parties.
Ms K said that she thought the respondent first mentioned his new partner, Ms F, to her in about 2015.
She denied that it was the respondent who appeared to want to end the relationship with the applicant, and it was her recollection that it was the applicant who ended it. The applicant never discussed with her obtaining a property settlement from the respondent or making any kind of claim against him.
Ms K confirmed that the applicant did not pay rent for the business premises at Property B and that towards the end of the relationship, the respondent started complaining about outstanding rent from the applicant. The applicant herself did not ever mention this issue. After the applicant moved out of the Property A premises, she continued to be involved in the respondent’s businesses and they appeared to still be together. With the exception of invoicing the applicant for electricity at the beginning of the relationship for a short time, the applicant had not been charged for any other items, such as office equipment. She said that the respondent and the applicant would introduce each other as their “partner”, and the respondent sometimes referred to the applicant as his “other half”. She recalled that the respondent had said at one stage that he wanted to marry the applicant, but could not recall when this was.
I found Ms K to be an impressive witness. I accept her evidence as both honest and reliable.
Evidence of Mr B
The evidence of Mr B with respect to the informal mediation was essentially consistent with that of his wife. In oral evidence, he confirmed that the purpose of the meeting was to help the parties get over their issues and to see if there was any answer for them. He denied that there was any baiting of the respondent during this meeting. He said that he did not have any knowledge of loans between the parties, or any payment schedule.
In cross-examination, he said that by the end of the mediation, all the issues between the parties seemed to converge on the applicant’s children. He conceded that he did not have direct knowledge of what occurred between the parties in private. He maintained that he had visited Property A whilst the applicant was living there and that it appeared to him that the parties shared a bedroom. He said that it was the only bedroom in the house that had a double bed and that it had their things beside it and that he had been shown around the house by the parties. He acknowledged that he had never seen them in the bedroom together.
I formed the impression that Mr B was a truthful witness doing his best to recount the events as he recalled them. I conclude that he was both an honest and reliable witness.
The respondent’s case
Evidence of Mr Provis
The respondent relied on his trial affidavit of 26 November 2016. He denies that he could be regarded as having had a de facto relationship with the applicant at any stage, that he was ever introduced by the applicant or introduced himself as her partner, and denies the extent and nature of her involvement (business omitted) or his property portfolio that she claims.
Throughout the course of their friendship, he advanced the applicant a number of small loans. He said that he generally paid her for any work that she did for him, but on some occasions, he did not because she was paying off her small loans. With respect to the applicant moving into Property A as a tenant, he said that the agreement was initially that she would pay $150 per week to be reviewed after six months. He denied that they renovated the premises together. He says that he did not instruct his solicitor to draft a financial agreement between himself and the applicant, and did not at any stage discuss with the applicant any form of prenuptial agreement.
The respondent says that he did not want a steady, committed relationship with the applicant and was content with a casual sexual relationship. He admits that he “played on her feelings” after the end of the relationship in an effort to gain her confidence as a way of convincing her to repay money that she owed to him. On his evidence, he did not tell the applicant that he had provided for her in his Will, or that he was contemplating making further alterations to his Will to leave her a property as claimed. He denies that he put the investment properties solely in his name simply to reduce fees and charges, or out of observance of (nationality omitted) cultural tradition, stressing that he is in fact a (nationality omitted). He says that he was not aware that the applicant had altered her contents-insurance policy to be in both of their names. He further denied that he purchased the property in (country omitted) with the applicant, or that she had liaised with the lawyer in (country omitted) to obtain (nationality omitted) tax file numbers. On the respondent’s version, the payments made by the applicant to the mortgage for the Property A property after she moved in, were not her contributions to the mortgage, but simply her payments of rent, which for convenience he instructed her to pay onto the mortgage. He admitted that the applicant had paid about $2,000 for a (omitted) for the entertaining area at Property A but said that this was in lieu of a repayment for a loan that he gave her to start one of her businesses.
The respondent denies that he ever had joint properties with the applicant and says that the management work she did for the property portfolio was invoiced by her. In that respect, he regarded her as a contractor.
With respect to the applicant’s evidence that she had been divorced from Mr L for three years by the time she travelled to (country omitted) with the respondent in (omitted) 2013, he says that he was unaware that she was divorced.
As to the mediation that he attended with Mr G and Ms K and the applicant, the respondent states that that meeting was not designed to reconcile the differences between the parties. He says that the meeting involved Ms K “baiting” him to start a relationship with the applicant, whereas he had simply asked their assistance in recovering loans owed to him by the applicant, and to negotiate a payment schedule. He acknowledges that he became upset during the mediation, but says that this was simply because the applicant refused to acknowledge the loans that he had made to her.
The respondent denies that he shared a bedroom with the applicant at Property A. In that regard, he says that the guest room referred to by the witness, Ms A, was in fact the applicant’s bedroom. He insists that he maintained a separate bedroom with his own furniture. As to the circumstances of the applicant vacating Property A, the respondent says that she had become a tenant of his under sufferance for two years. As she owed rent and there were still many loans outstanding to him, with no indication of when she was likely to pay them, he asked her to leave. He acknowledges that another reason was that he did not want her son Mr A to be in his house.
The respondent says that he did not tell Dr D that he had been in a relationship with the applicant for five years. He says that he specifically told Dr D that the applicant was a tenant in his home, that they had a casual sexual relationship, and that the issue was that he did not want the applicant’s son moving into his home.
The respondent denied the effect and content of the evidence of Ms K. He says that it was he and not the applicant who offered Ms K employment with (business omitted). He denies that there was any reason for the applicant to be the first point of contact for any enquiries Ms K had whilst working for his business because he did not employ the applicant between 2007 and 2015. If the applicant did perform any such function, it was simply because she had a personal connection to Ms K. He specifically denied Ms K’s evidence that he had been introduced by the applicant as her partner in his presence. He denied the extent of the applicant’s involvement in his business affairs as asserted by Ms K. On the respondent’s evidence, Ms K’s observations as to the extent to which he and the applicant shared a life together are simply incorrect. He denies Ms K’s account of his ongoing relationship with the applicant after she moved out of Property A. On his evidence, the applicant wanted to continue a casual relationship but this did not occur. The respondent says that he was “thrilled” that the applicant had left Property A, but upset because he believed that she still owed him a lot of money. He said that he specifically asked Ms K and her husband if they could assist in retrieving the money.
With respect to the account of Mr B as to the mediation, the respondent denies that he started the discussion by saying that he loved the applicant and had plans for a future together. The effect of his evidence is that he rejected Mr B’s account of the mediation.
The respondent denied the effect and content of the evidence of Ms S as to having been invited together with the applicant to her 40th birthday party at (omitted) in (omitted) 2012. He denies having asked her in (omitted) 2015 if there was anything she could do to help him reunite with the applicant, or that he told her that he still loved the applicant. He says that he was at that time in a committed relationship with Ms F.
On the respondent’s evidence, the observations of the applicant’s daughter, Ms M, as to the nature of the relationship between him and her mother, are simply incorrect. He denies Ms M’s evidence that he attended all of their family gatherings and says that her account of attending some of the same social events as her and her mother can be explained because they had mutual friends. He denies that he asked her and her mother if they would like to come and live with him. He denies that he told Ms M that he would renovate one of the bedrooms for her. On his account, the bedroom in which she slept required very few alterations. He says that it was the applicant who asked if she could rent two rooms from him whilst she got herself back on her feet. In response to Ms M’s assertion that his family were all very friendly to her and her mother, and that they welcomed them into their family, the respondent says that his family is very polite and courteous and welcomed Ms M and the applicant even though they disliked the applicant’s “superior attitude”. He does not deny Ms M’s account that he and her mother held various gatherings at Property A, inviting both of their immediate family and friends, but takes issue with Ms M’s account that she used to assist her mother prepare for these gatherings because to his observation, she was lazy. He denies that he ever became a father figure to Ms M as she has claimed. He says that he asked her to lay the wreath at the ceremony to which she refers in her evidence simply because none of his children were available.
On the respondent’s account, Ms M is mistaken as to the reasons her mother’s business left the Property B premises. He says that it is not because they needed to have more room, but because the applicant was refusing to pay rent and he evicted her. The respondent disputes Ms M’s account that the applicant left his premises of her own accord as a result of the arguments about her brother, Mr A, after Mr A’s father had passed away. On the respondent’s account, he had been asking the applicant to leave his house for almost two years after she stopped paying rent. He says that by this stage, he was demanding that she leave because he was at his “wits end”.
In cross-examination, the respondent admitted that he had previously described the applicant as opportunistic, conniving and manipulative, and said that this was the way he felt about her at the time that she left Property A. He repeated that he was thrilled when she left his home. He said that he was angry with her at that time because he had lost a lot of money. On his version, he had put a lot of money into her businesses because she had simply asked him to. He admitted that in the beginning he had great confidence in her business skills. He estimated that in total, when various loans and unpaid rent were taken into account, the applicant owed him about $84,000. He admitted that there was no lease signed between the applicant and himself, and that there were no contracts for loan monies he advanced to her. When asked why, if he felt that way about the applicant, he had agreed to go see Dr D, he said that it was because he was being badgered. He said that the applicant was constantly asking him why they could not be together and why they could not be friends. His view was that there was no reason why they could not still be friends. He agreed to go see Dr D because the fact that he did not like her son was an issue for the applicant.
He drew a distinction between the fact that he would not trust the applicant in business but would trust her in a social context. He said that she still had good qualities and he still wanted to be her friend. He emphasised that he was friends with a lot of people over the years, including many people that he had previously fallen out with. Because the applicant had told him that he was sick, he was interested to go along to see Dr D because he felt that if he had a psychological problem, he wanted to know about it. He reiterated that on many occasions prior to seeing Dr D, he had told the applicant that he did not want anything to do with her son. When it was put to him that if his interest in the applicant was simply a matter of friendship, why was it not possible for him to have a friendship with her, but not to have anything to do with her son – he responded that he would go over to their house for dinner sometimes and her son would be present.
On the respondent’s account, he wanted to keep in touch with the applicant after she left Property A because she still owed him money and he felt that if he was in her good books he would stand a much better chance of getting it back. At the time that they saw Dr D, he says that he did not envisage continuing a sexual relationship and said that by that stage, they had not been having much in the way of a sexual relationship since about 2011. He admitted that he still loved the applicant as a person at the time that he saw Dr D, but qualified this by saying that he loved a lot of his friends. His feelings for her in January 2014 were not, he said, romantically motivated. He said that he was happy to pay for the counselling with Dr D because he was using the applicant to get his money back.
The respondent was cross-examined at length on a series of text messages that he sent to the applicant after she says she left Property A and before the end of March 2014, and a further series of text messages sent to the applicant after the time when she says they had ended their de facto relationship at the end of March 2014. I will not summarise all of these.
It should be noted at this point, that it was the evidence of the applicant that after she moved out of Property A, they initially argued but then they continued their relationship before final separation in March 2014.
When it was pointed out in cross-examination that he frequently signed off text messages to the applicant during 2013 by telling her that he loved her, he answered to the effect that when you have sex with someone, you often say that you love them, but that this did not necessarily mean anything.
The following texts and his responses in cross-examination illustrate the effect of his evidence on this matter.
On 10 June 2013, the following exchange occurred:
Applicant, 10 June 2013, 9.30am:
“I’m on my way to drop off the keys and to pick up my stuff”
Respondent, 10 June 2013, 9.34am:
“Doesn’t suit me, come between 12.00 and 1.00 alone”
Applicant, 10 June 2013, 9.35am:
“Ok”
Respondent, 10 June 2013, (time illegible):
“come whenever so I can stop the hurt and move on”.
Applicant, 10 June 2013, 9.50am:
“I’ll be there around 10.30”.
Applicant, 10 June 2013, 9.34pm:
“Thinking of you, I’ll call you when I go to bed. xx”
Respondent, 10 June 2013, 9.36pm:
“It was great today love u heaps. Xx”
Applicant, 10 June 2013, (time illegible):
“Love you too. xx”
Applicant, 10 June 2013, 11.02pm:
“Tried calling you but no answer … I’ll call you tomorrow and we can go get some dinner tomorrow night. Goodnight. xox”.
Respondent, 10 June 2013, 11.08pm:
“fell asleep talk tomorrow goofnight. (sic) xox”.
In response to these text messages, the respondent said that he could not recall what it was that he was “hurting” about, but he conceded it could have been the fact that the applicant had left his house. When pressed in cross-examination as to why there was an intimate tone to these exchanges, the respondent replied that all of the text messages he was sending to the applicant were a last ditched effort to get a reaction from her. For that reason, he was telling her things she had always wanted to hear. He said that he tried every trick in the book because he thought behaving in that way was the only chance he had of getting any money out of her. When asked why he would tell her that he loved her “heaps”, he responded that she still owed him a lot of money and that he wanted to get some of it back.
The respondent was questioned about a series of text messages he sent to the applicant on 5 July 2014, that exchange was as follows:
On 5 July 2014, the following exchange occurred (copied verbatim, errors retained from original):
Respondent, 5 July 2014, 3.37am:
“Imy head is goig crazy im so sorry about tonight bu im not sorry for tellimg you I love you om om love woth you and I judt realised how much I want to tell the world im just drivimg aroumd and dont know what to do.”
Respondent, 5 July 2014, 3.40am:
“I dont knw how you feel about me but if I died tommoroe I woul want you to srttle evrrything and o eould like to be buried nrxt to you ifont wsnt anyome else im my life ever.”
Respondent, 5 July 2014, 3.42am:
“icant believe im saying sll this but I neef someone to talk to imgoinh crazy.”
Respondent, 5 July 2014, 12.52pm:
“Ms Potts I dont want to upset you any more but can u answer me truthfully please eho is the guy thats hanging around you he seems to be very interested in you and that he wants to be more than a friend this will help me move on.”
Respondent, 5 July 2014, 2.50pm:
“sometimes people need time apart to think and look at themselves and realise their faults and none of us are perfect bu we tend to ignore or dont see our faults unles its too late it took me severalonths to reslise my selfishness I now realise that I didnt listen to you and what is importsnt to you likr yout children like going yo places that you like surprising you with flowers for no special reason you wanted me to tske (omitted) and even paid for them and so much more no I dont deserve you more no I dont deserve you how could I have been so arrogant it takes something like this to wake up I hope to god that one in a billion chance might happen miricsls do happen.”
Respondent, 5 July 2014, 3.03pm:
“in time you will see me in adifferent way with my actions not just words I nerd to apologise to Mr A for not taking the time to jnderdtsnd him but eith Ms M I had patience ando always wanted the best for her I will take up (hobby omitted) with your help andwork together with you to be more of a family snd enjoy grandchildren coming over this is what I want but I neef your help love u always Mr Provis.”
Respondent, 5 July 2014, 5.25pm:
“Ms Potts can u pld pick up phone.”
Respondent, 5 July 2014, 5.55pm:
“Ms Potts I want to come over if thats ok.”
Applicant, 5 July 2014, 6.15pm:
“No…I’m going out.”
Respondent, 5 July 2014, 6.18pm:
“im coming for two minutes I love uou vrry much.”
Applicant, 5 July 2014, 6.19pm:
“No…if you love me you wont come…you’ll respect my wishes.”
Respondent, 5 July 2014, 6.27pm:
“ok sweetheart I dolove you an respect you I would like to talk to you and the kids tomorroe whats agoid time xx.”
Respondent, 5 July 2014, 6.45pm:
“is 11 00am suitable will Mr A be home.”
Applicant, 5 July 2014, 6.46pm:
“I’m busy all day tomorrow and Mr A is working… we’ll talk during the week.”
Respondent, 5 July 2014, 6.48pm:
“ok thanks.”
Respondent, 6 July 2014, 12.49am:
“good night xc.”
With respect to the text message sent at 3.37am on that morning, the respondent said that what he was trying to convey was that he missed the applicant, he cared for her, he loved her, and he wanted to see her, namely all of the things that a women wants to hear and that she had wanted to hear for many years.
He claimed that his purpose in doing this was completely disingenuous and designed to make her think that he wanted her. He agreed that he had said that he wanted to be buried next to her and explained that comment by saying, “As sick as it may seem, I tried everything …” When asked as to why he might be interested at that point in time about whether the applicant was seeing another man, he responded to the effect that he needed clarification of whether she was seeing anyone else because he wanted to know if his attempts at trying to get her back through the text messages as a means of pursuing his debt was going to be successful. He said that he had to say all sorts of rubbishy things to the applicant because it was the only way he had of trying to get his money back and he was concerned because he had heard she was going to be selling her business. He said that he was shattered because he was $84,000 out of pocket. In other words, the above texts were all simply a tactical ruse.
It should be noted that the series of text messages in July 2014 were a few months after the point at which the applicant says she finally broke up with the respondent. The respondent was cross-examined on further text messages, some of which I will refer to later in these reasons, but I will indicate at this point that I do not accept the respondent’s explanation for why he sent the text messages he did. The inference I draw from those messages is that they are entirely consistent with the applicant’s evidence that she had been in a de facto relationship with the respondent, that she had broken off the relationship in about March 2014, and that he was devastated. They are consistent with her evidence that he continued to pursue her after she had ended the relationship. They are also consistent with the evidence of other witnesses that it was a de facto relationship that had been ended by the applicant. The nature and intensity of the respondent’s text messages, and with respect to some of the messages sent on 5 July 2014, the time of day of which they were sent, support an overwhelming inference that he still had a strong romantic attachment to her. His evidence that his texts to her were simply a ruse to get into her good books as a way of persuading her to repay money to him, is simply unbelievable and I reject it.
The respondent was cross-examined about some text messages he sent to the applicant on 7 July 2014, commencing at 1.25am in the morning. It was put to him, and he accepted, that he had visited her house in the early hours of the morning. He said that this was a response to having seen her some time earlier with a gentleman and she had refused to talk to him. He said that he had told her that she owed him money, and for that reason, he went to her house and knocked on her window telling her that they had to talk, and asking when they could talk. He said that she slammed the door on his face. When asked about the timing of his visit, he said that he thought it was an appropriate time.
It was in that context that the following exchange occurred (copied verbatim, errors retained from original):
Respondent, 7 July 2014, 1.25am:
“Ms Potts im going out of my mind cant sleep cant eat having visions of you and this guy please please tell me the truth hoe invoved are you with him so I can move on I cant live without you difn realise what you mean to me please please the truth.”
Respondent, 7 July 2014, 1.30am:
“im coming over now.”
Respondent, 7 July 2014, 2.04am:
“oP.”
Respondent, 7 July 2014, 2.06am:
“Ms Potts I don’t care whats happened I still want uou anf I want to marry you its not too late unless you both love each other.”
Respondent, 7 July 2014, 10.03am:
“Ms Potts I hope we can still be friends and respect each other it doedmt matter wat happened and I still believe you still javr sme feelings for me yes I in shock but ill manage.”
Respondent, 7 July 2014, 2.16pm:
“Ms Potts I dont care if you’ve been with one man or a hundred if you love someone you forgive understand and move on baby I need forgiveness for not listening to you im starting today to show you what im all about with my actions not words you have always been there for me and I will always be there for you and the kids you and the kids are a package you were always good to my kids and family and I have a lot of catching up to do I will also do everything I can to bring (omitted) and the kids to the family I willneed (omitted) and you to help honey if we can fix things I woul like us to buy a house together as I plan to fix mine and sell it in feb.”
Respondent, 7 July 2014, 2.20pm:
“if Ms M still wants to go to (country omitted) why doesn’t she come with us for easter and we can all go to (country omitted) together that include Mr A if he wants.”
Respondent, 7 July 2014, 2.26pm:
“im sorry I brought some of your stuff over I thought some one may have been home and opened the garage I didnt want to open the door its not right ive been trying to call Mr A but its going to message bank I really want to talk to him please open your heart alittle and let my love for you in just a little xx.”
Applicant, 7 July 2014, 2.48pm:
“(omitted) and I will come on Saturday afternoon to pick up the rest of my stuff around 2.30pm…let me know if this doesn’t suit you. I’ll bring all your stuff also. Thanks.”
Respondent, 7 July 2014, 2.54pm:
“Ms Potts that would be fine why don’t we have lunch andbring the kids ihave left messages with Mr A I really want to talk to him and also apologise I should lead by example.”
Applicant, 7 July 2014, 3.03pm:
“No…it’s not a date…I’m just coming to get my stuff so we can both get on with our lives. What you’re trying to do now should’ve been done 5 years ago instead of making my life a misery. I’ve already told you it’s too late…get on with your life and stop harassing me.”
Respondent, 7 July 2014, 3.09pm:
“Ms Potts I dont want.”
Respondent, 7 July 2014, 3.14pm:
“Ms Potts just to see you for five minutes will be great ive been so stupid to see what I had youre the best can I get through to Mr A igant get him Ms Potts idont have alife without you.”
In cross-examination, the respondent said that the comment that he wanted to marry the applicant was simply a lie, and that everything he said in those text messages were lies. He told the Court that he suggested that they could buy a house together because she had always wanted to buy a house with him. When asked what he would do if she had accepted his proposal of marriage, he answered that he would not have married her and he would have backed right off but that he would have come up with a plan and would have played the game – implying that he would have used her acceptance as a way of pursuing her debt to him. He said that he did not think there was much chance of her agreeing to marry him.
Once again, the respondent’s text messages and the applicant’s responses are entirely consistent with the applicant’s evidence that it was she who ended the relationship.
The respondent said that this incident occurred after having seen the applicant at a (nationality omitted) hall on a Saturday night when he had had a few drinks and for that reason he thought it was an appropriate time at which to send text messages and it was not as though he had gone around to her house at that time on a week night. I take judicial notice of the fact that 7 July 2014 was a Monday. He denied that the visit to her house was on a different occasion to the time when he saw her at the (nationality omitted) hall.
He acknowledged that in all of the text messages he sent to the applicant in 2014, there was not a single mention of money. His unconvincing explanation for this was that if he had reminded her in the text messages that she owed him money, she would not have answered him and in effect his tactic of trying to get into her good books would have failed. I reject his evidence on that matter. I find that he kept pursuing the applicant throughout 2014 because he had a deep and ongoing romantic attachment to her.
The respondent was asked why he did not instruct his solicitors at any stage to issue proceedings against the applicant. He was not able to convincingly answer why he had chosen not to do this except to say that he thought that the applicant would have no money until she sold her business. The respondent agreed that he had not taken legal action for non-payment of rent by the applicant for the Property B office space, and that he had in fact given her 3 months of free rent when they moved in to Property B in order to get her on her feet. There had been no lease between them for the office space she occupied. He agreed that during her time at Property B, the applicant did complete his BAS statements for his business for no charge.
Notwithstanding the fact that she was not paying rent on his Property A property, or at Property B, he took the respondent on a holiday to (country omitted) during that period. With respect to his payment for overseas holidays, he said that he was silly and generous and easily taken advantage of. I reject that explanation. I find that the respondent holidayed with the applicant because they were in a de facto relationship together and this was simply one aspect of the way in which they shared their lives.
The respondent said that at some time in 2013, the applicant had sold half of her business for a figure that he believed to be in the vicinity of $25,000. He agreed that he did not pursue the question of her debt to him, although he had raised it with her. He apparently accepted her explanation that her business was none of his business.
Whilst the respondent said that he could not recall having sexual relations with the applicant after she moved out of his Property A home, he agreed that he may well have been sexually intimate with her when he took her to (country omitted) in late 2013. On that occasion, they went to (countries omitted), and his explanation was that it only cost him $1,500 for her to come with him. He agreed that she had helped him buy furniture for the unit in (country omitted).
The (country omitted) apartment purchase was another matter on which the respondent’s evidence was unconvincing. A company was set up in his name to run the investment properties. He agreed that he had purchased a car in (country omitted) and put it in the applicant’s name. This was simply, he said, because she was the (nationality omitted) citizen. He agreed that the applicant had set up the Paypal account for the (country omitted) apartments and that she was the only authorised signatory for that account. He said that he did not know at the time that she was the sole signatory to that account. He said that she looked after the (country omitted) apartments simply because she was looking after all of his other properties at the time and it made sense to let her run those as well. I reject the respondent’s evidence as to the circumstances surrounding the (country omitted) apartment purchases. I accept the evidence of the applicant that this was another example of them working together to develop a property portfolio for their mutual benefit. I note that this is also consistent with the account of Ms M, who said that she had been told by the respondent one of the apartments was available for them to use whenever they wanted to.
The respondent said that it was he who arranged the mediation with Mr G and Ms K. On his account, it was to do with money, but he said that he did not expect Mr G and Ms K to acknowledge this in their evidence as he had previously had a disciplinary issue with Ms K in the work place. In other words, if I accept his evidence, Mr G and Ms K have fabricated their version of events. He admitted that he may have said at the beginning of the meeting that he loved the applicant but he denied saying that he had plans for a long term future with her. Ms K used the meeting to vigorously encourage him to start a relationship with the applicant and this became the focus of that mediation. Exactly why Ms K would have taken it upon herself to play cupid in this way is not clear to me. I reject the respondent’s account of this meeting. It is in direct contrast to the evidence of Mr G and Ms K, whose evidence I accept on the matter.
With respect to his personal finances, the respondent acknowledged that he may have given the applicant the pin number to his personal bank account, but he was not able to say why he would have done this.
The respondent was questioned on the fact that the applicant had gone guarantor for the purchase of the Property B property. He said that he understood that the guarantee she provided was for about $5,000 or $10,000. He acknowledged that on its face, the document appeared to show that the applicant had guaranteed an amount of $530,000. He said that she had no objection to signing this document, but he disputed that it was because she was his de facto. I reject his explanation as to the guarantee. It is one further example of the extent to which the parties’ lives, personal commitment and financial interests had become intertwined. It is entirely consistent with the applicant’s evidence that they were in a de facto relationship, and of the role that she played in helping to establish and maintain the property portfolio.
The respondent was also cross-examined about his relationship with Ms F. He said that she moved into his place in about 2015. On his version, they made plans after 2011 to be together, but that at that time she was looking after her mother, who was very ill. He said that they had devoted themselves to each other after 2011, but did not commence a sexual relationship at that time. From his perspective, he said that from later in 2011 he was committed to having a relationship with Ms F but it was subject to her becoming available. Their relationship became sexual after her mother died in mid-2014. This was inconsistent with the evidence of Ms F. The respondent told the Court that he had informed Ms F about the counselling with Dr D, and said that he kept her fully aware of the status of things between himself and the applicant. At one point he had told Ms F that he had previously been in a sexual relationship with the applicant, but he says that she knew that he had no feelings for the applicant. He had made Ms F aware that he was sending text messages to the applicant, but did not give her specific details of their contents. He told her that the messages did not mean anything to him and he said that he explained to her the reason for sending the messages was simply so that he could position himself to encourage the applicant to repay her debts to him. On the respondent’s version, Ms F was not happy with this explanation.
I do not accept the respondent’s evidence that he was committed from as early as 2011 to one day having an exclusive relationship with Ms F, irrespective of what she says he may have told her. I find that the applicant was committed to continuing his relationship with the applicant until the time of final separation in 2014 and that thereafter he was committed for many months to trying to achieve reconciliation with her. He has now moved on and is in an established relationship with Ms F.
In summary, I reject the evidence of the respondent as to the basis of his relationship with the applicant both at the time that they cohabited in Property A and after the applicant left the premises. I am satisfied that their relationship continued until 25 March 2014.
I reject his explanation for the numerous text messages he sent to the applicant and find that his explanations for these messages was untruthful.
Evidence of Mr P
Mr P has been the respondent’s accountant since 2006. On his account, when he met the applicant in 2007, she was employed in the respondent’s business doing book keeping. In or around 2014, he understood that the applicant was still providing book keeping services to the respondent using her (omitted) email address. Whilst he was aware that the respondent had expertise as a (occupation omitted), he was of the view that the applicant did not have the skills or expertise that would have enabled her to make a significant contribution to the acquisition of investment properties for the respondent’s portfolio. In any dealings with the property investment portfolio and the respondent’s businesses he would always confirm any instructions he received from the applicant with the respondent.
As the respondent’s accountant, he was aware that the applicant’s business had charged the respondent’s business an amount of $13,416 in the 2012/2013 financial year, and $12,318.24 in the 2013/2014 financial year.
In cross-examination, he conceded that he did not have direct knowledge of what contributions the applicant might have made to the purchase of various properties. He said that from his discussions with the applicant over time, he formed the view that she did not have the appropriate skills to acquire property. He acknowledged that he had had dealings with the applicant in relation to the purchase of the Property B property, and requested her to make some calculations for him with respect to land tax. He understood that the applicant was doing this on behalf of the respondent. He agreed that the applicant had provided him with information to prepare financial statements for the respondent’s business and his property management portfolio. He regarded her as doing work within the realm of a book keeper. Significantly, Mr P was not able to comment on the nature of the personal relationship between the parties, but he did say that the applicant had not featured in any discussions that he had had with the respondent about potential retirement plans.
Evidence of Ms H
Ms H is an accountant who knew the respondent and the applicant from having occupied office space in the Property B building from 2010. Her evidence was that she did not ever observe the parties kissing, hugging, or holding hands, and did not during the time that they were both in the Property B building think that the parties were in a relationship. In cross-examination, she acknowledged that she knew nothing of their sexual relationship, social lives, or the extent to which they engaged with each other’s families. Her evidence did not provide any assistance in determining the issues before the Court.
Evidence of Mr N
Similarly, the witness Mr N, a conveyancer who had done a lot of conveyancing for the respondent over the past 20 years, acknowledged in cross-examination that he could not say one way or the other whether the parties were in a de facto relationship. He did not ever visit them at the Property A house, and his involvement with the applicant was limited to seeing her on some occasions when she dropped off documents relating to property transactions.
Evidence of Ms F
The evidence of Ms F was relevant to the respondent’s case because on his evidence, his involvement with her was fundamentally inconsistent with the assertion that he had a de facto relationship with the applicant at the relevant times. I have summarised the respondent’s evidence as to the chronology of his involvement with Ms F. In her affidavit, Ms F said that she met the respondent when she was about 13 years old, he being a friend of her parents. Her mother had been ill for some time by mid-2011 and so she moved in with her and became her primary carer until 2014. She would see the respondent during that period of time at her mother’s home as he often visited her mother. On her evidence, she commenced a “loving relationship” with the respondent in mid-2011 at which time they had made a promise to each other that one day they would live together and get married. She says that her mother was aware of this and was overjoyed. She says that her mother gave them her blessing. At this time, she knew that the applicant was living in his home and believed that the respondent was helping the applicant out because she was in ‘dire straights’. The respondent told her that he was simply giving the applicant a roof over her head and that she would be leaving his house when she was financially on her feet again. This caused Ms F to respect him for his empathy and kindness towards the applicant and her daughter.
During the period of time she cared for her mother, this was the main focus of her life and she was not in a position to commit to the respondent. She said that the respondent assisted her with some of the household duties and caring for her mother during the time she was the primary carer. On her evidence, the respondent was happy to wait until an appropriate time in which to commence a relationship with her. She says that they discussed the future and she always understood that one day she would be living permanently in a relationship with the respondent and that they would marry. She moved into the respondent’s home at Property A in (omitted) 2015, approximately one year after her mother’s passing away.
Her evidence was that she was aware that the respondent was having sex with the applicant but that he told her that it was simply a casual arrangement between long term friends and that he did not love her.
Her evidence was that she is currently in a de facto relationship with the respondent and that they plan to do some travelling and eventually get married at the right time. She currently works for him two days per week. She retains her own home and savings. He has advised her that she has been included in his Will but she has not read the Will.
In cross-examination, Ms F said that her sexual relationship with the respondent started in mid-2011 but that whilst her mother was alive, they had only had sex three or four times. They had never been intimate at his Property A home and she had not visited Property A between 2011 and 2014. She said that she was aware that the respondent had gone overseas on occasions with the applicant and she assumed that they were probably sleeping together, but she was fine with that because she was focused on caring for her mother, and she was happy for him to get on with his life and when the time was appropriate, she was secure in the knowledge that they would be together. She said that she was now engaged to the respondent but that there was no date set for the wedding.
Between 2011 and 2014, she said that she never stayed overnight together with the respondent, or went out to dinner with him and did not attend social events with him during that period. She did not attend any family functions with him. She was not aware that he had attended for counselling with Dr D in 2014. She confirmed that it was in 2011 that the respondent had told her that his casual sexual relationship with the applicant had ceased. With respect to some of the overseas trips, the respondent had told her that the applicant had other reasons for wanting to go away with him. He did not volunteer that they had had a sexual relationship on some of the holidays after 2011.
I find aspects of Ms F’s evidence difficult to except. It seems to me to be unlikely that she would have shown as little curiosity about the nature of the respondent’s relationship with the applicant as she claims. I find it unlikely that if she had her mother’s blessing as to the relationship and the mutual commitment that she claims with the respondent that she would see any need to delay the start of the relationship and limit it to a few sexual encounters prior to her mother’s death. I do not find it necessary to the issues before me to make a finding on her evidence about those matters.
Ms F was somewhat defensive in cross-examination when being asked questions about the respondent and claimed to have read the affidavits of both the respondent and the applicant. I am satisfied that at least to some extent there was an element of reconstruction in her evidence. I accept that she had at least some sexual relationship with the respondent between 2011 and when her mother died. I am not able to make a finding as to what the respondent may or may not have told her about his level of commitment to an ongoing relationship with her. That does not alter the other findings I have made. The fact is, on Ms F’s evidence, her de facto relationship with the respondent commenced in 2015, well after the end of the applicant’s relationship with him. I do not find the fact that the respondent had three or four sexual encounters with Ms F at a time when the applicant believed she was in an exclusive relationship with him to be inconsistent with the applicant’s case as to the nature of the relationship. It is implicit in the respondent’s case that his involvement with Ms F leads to a conclusion that there was no de facto relationship with the applicant. That would only be the case if I accepted the respondent’s evidence as to the nature of his relationship with the applicant, which I do not.
Evidence of Mr G
Mr G has known the respondent since 1961. He is the (occupation omitted) of the (omitted), in (omitted), and it appears that he knows the respondent primarily through community and church functions. At times he has assisted the respondent with his (business omitted) and a (employment omitted). In his trial affidavit, he stated that he had met the applicant when she was running a business from the respondent’s Property B office but that he had little to do with her. It was his impression that she had worked as a receptionist for the respondent for a period of about 12 months, and that the applicant had managed some flats owned by the respondent. On his evidence, the applicant was introduced to him by the respondent as a friend who rented two rooms of the Property A premises from the respondent. Whilst he was aware that the parties had travelled overseas together, he could not recall ever seeing them socially at any of the functions to which he invited the respondent. He said in oral evidence, that he had visited the respondent at his home in Property A whilst the applicant was living there. He had never heard the respondent mention a long term future with the applicant. In all of his visits to the Property A property, he could not recall ever seeing the parties behave affectionately towards each other. With the exception that I do not accept the respondent told him the applicant was renting two rooms in his house, I accept his evidence as to these matters.
In cross-examination, he conceded that he was not able to say whether the parties had a sexual relationship. He said that he could not recall attending functions with the parties. When asked how the parties behaved in each other’s presence, he stated that they presented as a man and woman, but they did not show signs of being a loving couple. He could not recall ever having had dinner at the Property A property when the applicant was living there. The parties did not ever attend at his house. The limited nature of his involvement with the parties meant that his evidence was of little assistance to the Court.
Evidence of Mr T
Mr T is a (occupation omitted) who has worked with the respondent for approximately 10 years as a contractor. He regards the respondent as a friend. He met the applicant in 2010 at the Property B office. She was introduced to him by the respondent as a friend who looked after his flats. To his observation, it was Ms K who was responsible for the everyday running of the Property B office. When he visited the respondent at his Property A home, the applicant was usually not present, or if she was, would rarely make an appearance. The respondent had apparently told him that the applicant was renting a couple of rooms from him at Property A. Given if the respondent did say this to him, I am satisfied it did not reflect the true nature of their relationship. He said that he did not discuss the respondent’s personal relationships with him. He told the Court that he did not socialise with the respondent.
In cross-examination, Mr T conceded that he had no idea about whether the parties had a relationship with each other’s families. He was not able to comment on whether or not they had ever had a sexual relationship, or which room they slept in at Property A. He was not aware that they had ever been on a holiday together. He said that the respondent had never mentioned being in a relationship with the applicant. I accept the evidence of this witness but his limited involvement with the parties meant that it was of little assistance to the Court.
Evidence of Mr J
Mr J is a (occupation omitted) who met the respondent through the (employment omitted) industry. The respondent refers work to him from time-to-time. In his trial affidavit he said that he met the applicant and her daughter on several occasions, and he believed that they were tenants of the respondent. He said that he had visited the respondent at his home on many occasions when he cooked barbeques but that the applicant and her daughter were not involved in any of those activities. He cannot have known the applicant particularly well because he told the Court that he was not aware of her second name. He believed that she was a close friend of the respondent and they did occasionally discuss personal matters, but the respondent had never commented on a relationship with the applicant.
In cross-examination, Mr J said that he had visited the respondent’s home between five and six occasions between 2009 and 2013. He did not know anything about a sexual relationship between the parties. He acknowledged that he invited the respondent to his house for Easter on one occasion, and that the applicant had attended with him. He said that he knew that they went on holidays together. He conceded that he could not say what sort of relationship the applicant and the respondent had and his evidence was of no assistance to the Court.
Consideration
I am satisfied that the parties merged their lives at the time the applicant moved into the Property A premises in (omitted) 2009 and lived together as a couple, and that they lived together from that point on a genuine domestic basis. They were in a de facto relationship until 25 March 2014. I am satisfied that they shared a room, had an ongoing sexual relationship that persisted at least until they holidayed in (country omitted) at the end of 2013, and that the applicant was, to a significant extent, financially dependent upon the respondent, at least until she moved out of Property A. The applicant’s financial dependence on the respondent is evidenced by the fact that she lived with her daughter rent free at the property and paid no rent on her business premises at Property B. Their mutual commitment to a shared life is also demonstrated in the many overseas holidays they took together over a number of years. Their holidays also illustrated another example of the applicant’s financial dependence on the respondent because it was he who paid for the vast majority of expenses and made those holidays possible.
I find that the parties held themselves out to friends and family as a couple and were regarded as such by both family and friends. I accept the evidence of Ms K that some people in the social circle believed them to be married.
The parties financial affairs were intermingled, notwithstanding the fact that all the properties purchased after they commenced their relationship were registered in the respondent’s name. The fact that the respondent sought, and the applicant gave, a guarantee with respect to the finance for the Property B property, is evidence of the extent to which she was involved in the property transactions and is evidence of the commitment and trust she felt towards him at that time and of the confidence the respondent had in the relationship and of the ability it gave him to involve her in his financial affairs.
I am satisfied that the relationship continued after the applicant moved out of the Property A premises and that it continued in a different form, but nonetheless still on a genuine domestic basis. The extent of the respondent’s commitment and devotion to his romantic relationship with the applicant is clearly seen in the text messages he sent to her after they finally separated in March 2014. That is not something that simply emerged after March 2014. It is also demonstrated in his willingness to attend on Dr D and Mr G and Ms K for counselling and mediation. He attended both of these because he was committed to trying to repair any damage to his relationship with the applicant and to continue it into the future.
It is a telling aspect of the respondent’s case that no members of his family, some of whom who had considerable contact with both of the parties, were called by him to give evidence. No explanation for this was advanced by the respondent. I am prepared to draw an inference that their evidence would not have assisted the respondent’s case.[4]
[4] Jones v Dunkel (1959) 101 CLR 298.
From the time that the applicant moved into Property A until she left, she and the respondent were not simply a landlord and tenant who shared an occasional sexual encounter. They were in a committed, if somewhat complex and imperfect, relationship as a couple.
South Australia became a participating jurisdiction with respect to Part VIIIAB of the Act and the legislation took effect as at 1 July 2012. It is accordingly appropriate to consider this matter within the provisions of Part V11IAB of the Act. During the period of the relationship, the breakdown of the relationship and the commencement of these proceedings, they were both residing in a participating jurisdiction. I find the requirements of s.90RG have been met.
Accordingly I make the orders to be found at the beginning of these reasons.
I certify that the preceding one hundred and seventy-nine (179) paragraphs are a true copy of the reasons for judgment of Judge Heffernan
Date: 11 August 2017
Key Legal Topics
Areas of Law
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Family Law
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Property Law
Legal Concepts
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Jurisdiction
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