Quinn & Lawson (No 2) - [2023] FedCFamC1F 274

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Quinn & Lawson (No 2) [2023] FedCFamC1F 274

File number(s): SYC 7896 of 2015

Judgment of: SCHONELL J

Date of judgment: 17 April 2023

Catchwords: FAMILY LAW – DE FACTO RELATIONSHIP – Where both parties sought declarations pursuant to s 90RD of the Family Law Act 1975 (Cth) – Where the applicant contended that the relationship broke down in December 2013 – Where the respondent contended that the relationship broke down in August 2011 – Where the applicant commenced proceedings in December 2015 – Where after 2011 the parties remained living together despite the respondent contending that he was telling the applicant to move out – Where the evidence is that the parties slept in the same room together, went to events together, travelled together, and socialised with each other’s family and friends – Where the applicant’s evidence is preferred because the respondent’s evidence was found to be unreliable – Declaration made that the relationship broke down not before December 2013.

Legislation:
Evidence Act 1995 (Cth) s 140

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

Cases cited:
Cubillo v Commonwealth of Australia (No 2) (2000) 103 FCR 1; [2000] FCA 1084

Fairbairn v Radecki (2022) 400 ALR 613; [2022] HCA 18

Nguyen v Tran (2018) MVR 16; [2018] NSWCA 215

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48

Division: Division 1 First Instance

Number of paragraphs: 238

Date of last submissions: 13 April 2023

Date of hearing: 23 – 26 August 2022, 15 February 2023, 10, 13 and 16 March 2023 and 11 April 2023

Place: Sydney

Counsel for the Applicant: Mr O’Dwyer SC with Mr Gardiner (23 – 26 August 2022);
Mr Gardiner (15 February 2023);
Mr Blackah (10 and 16 March 2023);
Litigant in Person (11 – 13 April 2023)

Solicitor for the Applicant: Gordon & Barry Lawyers (21 July 2022 – 8 March 2023);
Leeder Law (9 March – 10 April 2023)

Counsel for the Respondent: Mr Longworth;
Mr Kenny (16 March 2023)

Solicitor for the Respondent: Bartier Perry Lawyers
ORDERS

SYC 7896 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS QUINN

Applicant

AND:
MR LAWSON

Respondent

order made by:

SCHONELL J

DATE OF ORDER:

17 APRIL 2023

THE COURT ORDERS THAT:
1.Pursuant to s 90RD of the Family Law Act 1975 (Cth), the Court declares that the applicant and respondent were in a de facto relationship commencing in August 2006 and ending no earlier than 23 December 2013.
2.This matter is listed for case management hearing at 10.00 am on 12 May 2023 before a Senior Judicial Registrar.

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

These are proceedings for declarations pursuant to s 90RD of the Family Law Act 1975 (Cth) (“the Act”). They are but part of wider financial proceedings that depending on the outcome of the s 90RD determination could potentially involve applications for leave and consequentially orders for financial adjustment.
The proceedings first commenced on 1 December 2015 and have been listed for hearing on a number of occasions. Final hearing dates were allocated for two days in September 2019, only to be vacated. The matter was allocated further hearing dates in April 2020, which were also vacated. On 22 December 2021, directions were made for trial preparation with the intent to hear all outstanding applications, including the s 90RD determination and questions of leave, for six days commencing on 19 August 2022.
The applicant advised in July 2022 that she was without legal representation. Given the number of times the matter had been listed for hearing, the Court determined that in an attempt to at least salvage something from the allocated hearing dates, the matter would be listed for four days in relation to the s 90RD determination.
The proceedings commenced on 23 August 2022. The matter did not proceed on 24 August 2022 because of the applicant’s ill health and thereafter resumed on 25 and 26 August 2022. The matter did not complete and was adjourned part heard to 15 February 2023. On that date, further evidence was taken from the parties and documents were tendered. The parties sought to provide written submissions and directions were made for the submissions to be provided by 24 March 2023.
The applicant did not comply with the directions for filing written submissions and the Court consequently relisted the matter of its own motion on 10 March 2023. On the relisting the applicant indicated through new lawyers that she wished to seek leave to reopen.
The application for leave to reopen was heard on 16 March 2023 and leave was subsequently refused. A revised timetable for written submissions was ordered.
The last of the written submissions were to be filed by the applicant on 7 April 2023. She did not comply with the direction for filing written submissions in reply. On 11 April 2023, the applicant wrote to the Court saying she was again unrepresented and needed further time to file submissions in reply. The matter was relisted on 12 April 2023. On the relisting the applicant indicated that she would file her submissions in reply by 4.00 pm on 13 April 2023. On that assurance the previous order for filing submissions was amended to extend the applicant’s time to file. The applicant filed her submissions in reply at 4.50 pm.
The ambit of the dispute relates to when the breakdown of the de facto relationship occurred. Reference to terms such as ‘separation’ are unhelpful as it is not a term upon which jurisdiction is established. In that respect, s 90SM of the Act relevantly provides that:
90SM Alteration of property interests
(1)In property settlement proceedings after the breakdown of a de facto relationship, the court may make such order as it considers appropriate:
…
There was no issue that the parties’ de facto relationship commenced in August 2006. The applicant contends that the de facto relationship broke down on 23 December 2013. The respondent for his part contends that the de facto relationship broke down in August 2011.
The significance of each of the dates is relevant to the applicant’s application for financial adjustment under s 90SM in circumstances where, if the de facto relationship broke down at a date earlier than that contended by her, she would then need leave to bring proceedings out of time.
The applicant seeks the following relief (Exhibit 18):
1. Declaration pursuant to Section 90RD(1) & (2) of the Family Law Act 1975 (Commonwealth) that a de facto relationship existed between the Applicant and the Respondent commencing in August 2006 and ending no earlier than 23 December 2013.
2. That the Respondent pay the costs of the Applicant in respect of the Leave Application on an indemnity basis.
The respondent seeks the following relief (Exhibit 18):
1 Declaration pursuant to s 90RD(1) & (2) of the Family Law Act 1975 (Cth) that a de facto relationship existed between the Applicant and the Respondent commencing no earlier than 1 August 2006 and ending no later than 31 August 2011.
2 That the Applicant pay the costs of the Respondent of and associated with these proceedings.
Where each party moves the Court for a declaration as to when the de facto relationship broke down, each party carries the onus to establish the date contended for by that party.
DOCUMENTS RELIED UPON
The applicant relied upon the following documents:
(1)Initiating Application filed 1 December 2015;
(2)Affidavit of applicant filed 13 February 2020 (“trial affidavit”);
(3)Affidavit in reply of applicant filed 8 August 2022;
(4)Affidavit of Mr D filed 16 August 2022;
(5)Affidavit of Ms E filed 13 February 2020;
(6)Affidavit of Ms F filed 24 February 2020;
(7)Affidavit of Mr G filed 30 March 2020;
(8)Affidavit of Mr H filed 30 March 2020;
(9)Case Outline document; and
(10)Written submissions filed 16 March 2023 and 13 April 2023.
In addition, the applicant sought leave to rely upon a report of Dr B, neuropsychologist. The report was not appended to an affidavit and was served shortly prior to the commencement of the hearing, albeit that the report is dated in 2020. The report does not constitute evidence of a treating physician but is single expert evidence obtained for the purposes of the proceedings. At no time did the applicant file an application seeking leave to adduce evidence from an expert other than a jointly appointed single expert. Ultimately, the parties reached agreement about the terms upon which it would be received into evidence. The report and the letter setting out the terms on which it would be received became Exhibit 19 in the proceedings.
The respondent for his part relied upon the following documents:
(1)Response to Initiating Application filed 11 March 2016;
(2)Affidavit of respondent filed 12 July 2022;
(3)Affidavit of Mr J filed 25 March 2020;
(4)Affidavit of Ms K filed 25 March 2020;
(5)Affidavit of Mr C filed 26 March 2020;
(6)Affidavit of Ms C filed 26 March 2020;
(7)Affidavit of Mr L filed 27 March 2020;
(8)Case Outline document; and
(9)Written submissions filed 24 March 2023.
Each of the parties were cross-examined as was Mr D.
All the other witnesses were not required for cross-examination.
I have read all of the documents relied upon by the parties as well as the documents tendered, the transcript of the evidence and the parties’ written submissions.
THE APPLICANT’S CASE
The applicant contends that between August 2006 and separation on 23 December 2013, the parties were in a continuous de facto relationship that included the parties socialising together, holidaying together, sharing the same bedroom, having a sexual relationship and travelling overseas together.
She does concede that the party’s relationship had difficulties from as early as late 2012. In early 2013, the parties commenced attending counselling with X Services. She says they finally separated on 23 December 2013. The applicant says that sometime after 23 December 2013, she moved from the main bedroom into a second bedroom, eventually leaving the Suburb M apartment in August 2015.
THE RESPONDENT’S CASE
The respondent contends that the parties were in a de facto relationship between August 2006 and August 2011. He says that the parties were involved in a heated argument in August 2011. He says that she accused him of being “a ‘liar’, a ‘cheat’, ‘dishonest’ and said that [he] ‘betrayed’ her” (respondent’s affidavit, paragraph 43).
The respondent contends that he wrote her a letter stating that if she did not withdraw her allegations, the relationship would be “finished” (respondent’s affidavit, paragraph 44). He says the parties then had a conversation where the applicant indicated that she would not withdraw the allegations. He says that he informed her that the relationship was over and asked her to leave his home in Suburb M.
The respondent says that aspects of the relationship that had existed to that point of time thereafter changed. He contends that a sexual relationship ended in August 2011. He says they continued to sleep in the same bedroom until moving into the Suburb M apartment. Thereafter, he slept in the main bedroom and the applicant slept in the second bedroom. They only shared a bed on two discrete occasions.
He conceded that the applicant finally moved out of the apartment in August 2015.
BACKGROUND
The applicant was born 1963. The respondent was born 1957.
There is no issue that the parties commenced living in a de facto relationship in the respondent’s home at Suburb M in August 2006.
The respondent contends that their relationship began to deteriorate around 2010.
He says that there was a heated discussion in August 2011 that led to their separation. In his affidavit, he says:
43. [The applicant] and I separated in mid August 2011 after a heated discussion occurred between us. [The applicant] made some serious allegations about my character. [The applicant] called me a “liar”, a “cheat”, “dishonest” and said that I “betrayed” her over the [N Street] project. I was very offended by her allegations.
44. After this argument, it became very difficult to speak to each other and I wrote to [the applicant] to ask her to withdraw her allegations. I recall saying in my letter to [the applicant] words to the effect: “If you refuse to withdraw the allegations then I consider our relationship to be finished.” I handed [the applicant] my letter by placing it on the kitchen island bench when we were both standing in the kitchen and said to her “This is what I feel.” [The applicant] read the letter in my presence and said to me words to the effect “No, that is exactly what you did. I won’t withdraw what I said to you”. I replied: “Fine if that is how you feel then you should leave. Our relationship is over.” I recall at this time [the applicant] said to me words to the effect: “This is the first time someone has ended a relationship with me. I am always the one to end a relationship.” I do not have a copy of this letter.
45. At the time of separation, I asked [the applicant] to move out of the [Suburb M] property. I said to her “If you are not prepared to withdraw the allegations, there is no relationship, I would like you to move out. I am prepared to be reasonable and give you some time to arrange your affairs to move out. I am happy to remain friends and will assist you move out.” I anticipated that [the applicant] would need some time to arrange alternative accommodation. I expected that she would want to move back to Melbourne where she lived prior to the commencement of our relationship. Despite our arguments about her termination from the [N Street] project, I treated [the applicant] as a friend and with respect.
The respondent says that after this heated discussion he asked the applicant on a number of occasions to move out of the home. In his affidavit, he says the following:
54. During 2012, at least once per month when I saw [the applicant] in the house, I would say to her words to the effect: “How are your plans going to move out?” or “When do you think you will move out?” When I made these inquiries, [the applicant] either walked away from me when I spoke to her or she responded by saying “I have too many things on my plate and I cannot handle moving right now. At times she responded by calling me “heartless”, “a bully” and accusing me of not caring about what she was going through. [The applicant] did not fully disclose her condition to me and I did not really know what she was actually suffering from. Notwithstanding this, I still felt sorry for her.
The applicant in her trial affidavit says the following:
26.At no time during 2011 did [the respondent] ask me to move out as asserted by him. I deny there was hostility between us and we continued as a couple. …
She made clear in her cross-examination that she was never asked by the respondent to ever move out of the Suburb M home or the subsequent Suburb M apartment. She said there was a business letter but it was not the one referred to by the respondent.
The respondent’s former wife Ms K says that she and the respondent had lunch together in August 2011. During that lunch, she says that the respondent said to her “[m]y relationship with [the applicant] has ended. We had a very big fight and it is over. I am only telling you this in confidence” (affidavit of Ms K, paragraph 13).
Notwithstanding his assertion to his former wife that the relationship was over, the parties continued to sleep together in the same bedroom in the Suburb M home until its sale in late 2012. When asked why he stayed in the same bedroom as the applicant, the respondent said that it was his bedroom and he saw no reason why he should have to move out of his bedroom as a consequence of the parties’ separation.
In his affidavit, he said:
91. Notwithstanding that we ended our romantic relationship, I easily transitioned to a friendship with [the applicant]. I moved from a romantic relationship where I had an emotional and physical commitment to [the applicant] to that of a plutonic [sic] friendship. [The applicant] did not try to engage with me in a romantic way, she did not initiate any intimacy and she did not initiate any reconciliation with me. Likewise, I did not engage with [the applicant] in a romantic way, and I did not initiate any intimacy nor initiate any reconciliation with [the applicant]. There was no intimacy or physical relationship between us from mid-August 2011.
The applicant maintains that the parties continued a sexual relationship until shortly before December 2013.
The parties spent Christmas Eve 2011 with the respondent’s sister at a social function.
The applicant gives detailed evidence that throughout 2012 and 2013 the parties socialised with each other and other persons including with friends and family at restaurants, at the Suburb M home and then at the Suburb M apartment as well as at the homes of friends and family members. The applicant records at least 45 such occasions the parties attended throughout 2012 and 2013. The respondent disputed attending approximately eight of the events.
Mr C (the respondent’s friend) gives evidence that he had a conversation with the respondent on 11 February 2012 during which he says the respondent said to him “my relationship with [the applicant] is actually over and I have asked her to move out as we are having pretty heated arguments” (affidavit of Mr C, paragraph 11).
In early 2012, the parties travelled to Melbourne, albeit I find separately, to attend the applicant’s sister’s birthday.
In early 2012, the respondent cancelled the applicant’s supplementary credit card. In his affidavit he says:
53. In [early] 2012 I cancelled the [LL Credit Card] and the supplementary card used by [the applicant]. I cancelled the supplementary card as I wanted to send a further message to [the applicant] that she needed to move on with her life independently of me. [The applicant] was not using the card for her personal use.
The applicant says the whole account was cancelled for another reason.
The applicant says that in May 2012 she sourced and acquired furniture for the guest house in the Suburb M home.
The respondent and Mr C had another conversation in on 26 May 2012 at the rural property. In that conversation, Mr C says in his affidavit that the respondent said the following regarding his relationship with the applicant:
12. …
[The respondent]: “We hardly talk and when we do it ends up being an attack on me about something I apparently said or did. I keep telling her as often as I can to move out and I hope she gets it that the faster we move on with our lives the better”
He added“She avoids the issue of moving out and whenever I bring it up she walks out of the room”.

The applicant says in her affidavit in reply that the respondent was not at the rural property on 26 May 2012. She says he was at a social function in Sydney with her.
In mid-2012, the parties attended the respondent’s sister birthday party.
The respondent says that in July 2012, he spoke with the applicant’s brother about trying to get the applicant to move out of the home. In his affidavit, he says:
57. In or about [mid] 2012 I spoke to [the applicant’s] brother [Mr D] […]. I said to [Mr D] words to the effect: “Is there any way you can speak to [the applicant] and encourage her to move out of my home?” [Mr D] replied to me using words to the effect “I don’t think that I can tell her what to do. I think it is better if you go off and get someone independent to speak to her.” After this conversation with [Mr D], I said to [the applicant] “I have spoken to [Mr D] about our separation and he said to me that he can’t tell you what to do and you are better off going to an independent counsellor.” The conversation did not encourage [the applicant] to move out.
The applicant and her brother deny this conversation occurred in the way suggested by the respondent.
In or about mid-2012, the respondent says that he decided to sell the Suburb M home. The applicant contends that the decision to sell the Suburb M home was a joint decision whereas the respondent contends that it was his decision. The parties are at issue as to the circumstances surrounding who found the apartment in Suburb M. The respondent contends that he found the apartment whereas the applicant contends that the apartment was discovered when the parties were on a walk together.
The parties are also at issue about the extent of each of their involvement in the purchase of the Suburb M apartment. There is no issue that the apartment was purchased in the sole name of the respondent nor is there any issue that the applicant made no financial contribution to its acquisition.
The applicant says that in mid-2012, the parties travelled to Brisbane together for the christening of a member of the respondent’s family and while there they met up with the applicant’s brother and cousin. In cross-examination, the respondent said he could not recall this event. I am satisfied he attended.
Ms K says that in July 2012, she met with the respondent who informed her he was selling the Suburb M home. She says that he told her “[the applicant] is still staying at the house. She hasn’t left yet. I want to move into something smaller on my own” (affidavit of Ms K, paragraph 15).
In mid-2012, the parties travelled to Country O and then to Country P. There is no issue that the respondent paid for the cost of travel nor is it in issue that the parties travelled with friends, and that they shared a bed in the various hotels that they stayed in.
Mr C gives evidence of a conversation with the respondent on 15 September 2012. He says that the respondent told him that the Suburb M home had been sold and that the respondent also said:
13. ….
[The respondent]: “I told her that I had no place to move to and that she should start looking for a place to move to. She gave me a blank look and when I pressed her, she grumbled that she had a lot on her plate and could not think about that just then”.
14.… “I am really tired of having to follow her around the house to talk to her about moving out …
In October 2012, friends of the applicant came to stay in the Suburb M home.
In late 2012, the applicant accompanied the respondent on a work trip to Country O and then City Q. Mr and Ms C also attended on the trip.
While on that trip, Ms C says she has a conversation with the applicant. She says the applicant said to her “I have to find somewhere else to live” (affidavit of Ms C, paragraph 14). The applicant denies this conversation took place.
In late 2012, the parties moved into the Suburb M apartment. There was significant cross‑examination about the location of clothing and furniture in the Suburb M apartment, and who moved what particular item of clothing and/or furniture into the home and where it was placed. Various photographs of the insides of cupboards were the subject of a lot of cross-examination. The cross-examination was anything but precise. Consequently, the answers only added to a somewhat confusing picture.
The respondent says that upon acquisition of the Suburb M apartment the parties did not sleep in the same bedroom except on two occasions. The applicant says they continued to share the main bedroom until shortly after her contended date of separation.
The respondent’s solicitor gave evidence of a conversation with the respondent on 7 December 2012. He says they had a conversation to the following effect:
5. …“My relationship with [the applicant] has not been going well for some time, it is at an end and we have separated. In fact, I have asked [the applicant] to move out because our relationship has ended. I have just bought a new apartment and [the applicant] says that she needs to move in there because she has been unwell and bogged down with medical appointments and needs a place to stay for a short while. What sort of position does that put me in?”.
6. I then asked [the respondent] “How do you guys manage your affairs?” [The respondent] replied, “We run separate finances. Always have. Currently, we live under the same roof, but there is no physical relationship. I don’t ask what she does and she doesn’t get involved in any of my business”.
7. I then asked [the respondent] “How long have you both been together?” He replied, “I met [the applicant] in 2006. I’ve told her and she has acknowledged that our relationship is over. I have asked her to move out but she keeps stalling saying she is finding it difficult to get herself organized”.
(Affidavit of Mr L)
In late 2012, the respondent completed a mail redirection notice for the Suburb M home in which he included the applicant’s name and his former wife’s name.
The following month, the parties celebrated the respondent’s birthday with friends of the respondent.
On 22 December 2012, the applicant left a note for the respondent about attending counselling.
The parties are at issue as to spending Christmas 2012 together at the Suburb M apartment and having dinner with the respondent’s sister and her family at their home in Suburb R on Christmas Eve.
In early 2013, the parties travelled to City S together with a friend of the respondent.
Mr C contends he had a number of conversations with the respondent throughout 2013. In his affidavit he says:
15. [In early] 2013 I had a meeting [the respondent] at the [rural property]. During that meeting [the respondent] and I had a conversation using words to the following effect:
[The respondent]:        “I have purchased a new place in [Suburb M]. It is an apartment only […] metres away from my previous place.”
Me:“Has [the applicant] moved out yet?”
[The respondent]:        “She asked me if she could buy a share of the unit. I really could not believe that she would even ask such a question. She told me she could not find a place so quickly and asked if she could stay in the apartment because she needs to attend to medical appointments. She went back to Melbourne for Christmas to be with her family and I am hoping she is looking to maybe re-establish herself there.”
Me:“Have you spoken to her family?”
“I have spoken to her brother [Mr D]. You met him. He is […] from Brisbane”.
Me:“Yes I recall meeting him at your birthday party”.
[The respondent]:        “She does not mention her family anymore, they stopped contacting me and I do not get asked to visit them anymore. I was really pissed off that a friend of hers from Melbourne sent a Christmas card this time addressed only to her and sent it to my apartment. I really found that to be very rude especially since they stayed at my previous house. I told her not to get any of her mail sent to my apartment.”
16. When we met on 15th February 2013 at the [rural property] I enquired as usual about [the applicant]. I recall [the respondent] just shaking his head and saying words to the effect “[Mr C] I just cannot understand how someone can be so thick skinned”. He went on to say “At least she agreed to [Mr D’s] suggestion about seeing a relationship counsellor. I really hope the counsellor can knock some sense into her and get her to move out”
17. When we met on 22nd June 2013 at the [rural property], I enquired about [the applicant]. [The respondent] replied with words to the effect “[Mr C], we may live in the same apartment but I hardly see her and we hardly talk. All I hear from her is that she is not well and I am insensitive. She keeps repeating - where do you expect me to go? My standard answer is – “From where you came from - the […] house in Melbourne”. I asked [the respondent] “Why don’t you just kick her out?” I recall [the respondent] paused and said “[Mr C] even though our relationship is over, I want to be civilized and separate with dignity”. After this meeting, I later described to my wife [Ms C] my concern for [the respondent]. I said to [Ms C] “You can see how distressed he is about his situation. I could see the agony on his face when he told me about her not moving out.”
18. On or about 20th August 2013, I had a telephone conversation with [the respondent] during which he said to me “[the applicant] has asked if she could come up to the [rural property] on 24th August with me. Is that okay with you? I replied” Yes.”
19. On Saturday 25th August 2013 when [the applicant] went for a walk with my wife, [the respondent] and I had a conversation, part of which was as follows:
Me: “It’s really obvious you both are just over each other. How can you sleep in the same room with her?”
[The respondent]: -      “[Mr C] I have a mental wall that blocks [the applicant] out of my thinking and feelings. It’s like she is not there. We have not been physical with each other for years. We never go to bed together and I switch off the fact that she is next to me. Most of the time she watches TV all night or is on the internet or sleeps in the lounge till I get up and then she goes to bed”.
Me:“I am not sure if you are too good or just too silly in not forcing her out”.
[The respondent]:        “My family has always practiced compassion. I will treat [the applicant] as a friend who has asked for a favour to stay at my place till she sorts things to move out”.
20. On 24th October 2013 [the respondent] visited my home in [City OO]. After dinner, I asked [the respondent] about [the applicant]. He replied “I feel things are really working well with the relationship counsellor. It is really good that someone independent is forcing her to be accountable for her own life.” I recall my wife saying “[the respondent] I just cannot imagine how difficult it must be for you” and [the respondent] replied “[Ms C] I just want this to end quickly and without any drama”.
(As per the original)
Ms C also says she had a conversation with the applicant in early 2013. She says:
15. After we returned from the trip away at some time in early 2013 I recall that [Mr C] said to me “[the respondent] is coming to the [rural property] and is bringing [the applicant].” During this visit [the applicant] and I went for a walk to the mailbox which we often did when she visited the [rural property]. The walk to the mailbox was about 1.5 kilometres and took about 30 minutes return trip. During our walk we had the following conversation:
Me: “How are you going [the applicant]?” This question was prompted by [the applicant’s] disclosure to me in [City Q] about her health.
[The applicant]: “Not good. My relationship with [the respondent] is over and he wants me to move out but I have nowhere to go.”
I recall thinking to myself at the time “You have had so long to find yourself a place to live.” I replied to [the applicant] “I hope you can both work it out.” By this I did not mean the relationship but rather their living arrangement. This was the last time that [the applicant] visited the [rural property] and the last time I had contact with [the applicant].
The applicant denies a conversation about moving out.
Starting in early 2013, the parties attended X Services together and continued to attend counselling over the course of that year concluding in a final visit in late 2013. The applicant concedes that there were difficulties in the parties’ relationship which she contends were in part as a consequence of health issues that she was suffering. The respondent says:
123. The sessions were not about reconciliation or in the context of an ongoing de facto relationship. [The applicant] made many complaints about me during those sessions including allegations that I caused her financial loss. Many of the sessions were adversarial. However, I felt the sessions were necessary for [the applicant] to get closure about our relationship and to understand why she needed to move out of my home. I was prepared to attend these sessions so that she could go through the closure process and I hoped that [the applicant] would understand that she needed to move out and on with her life.
…
125. … The significance of 23 December 2013 was that was the date on which the counsellor communicated to [the applicant] that it was her opinion that there was no relationship between us. I recall that [the applicant] was given specific advice and a diagram on how she should move on with her life independently of me. The counsellor recommended that both [the applicant] and I seek independent legal advice with respect to our separation.
In early 2013, the applicant travelled to the United States of America and Country T on a holiday. It is agreed that the respondent did not accompany her nor was he asked to accompany her.
The applicant’s brother Mr D says in his affidavit:
7. In [early] 2013 [the applicant] travelled to [V State] and [U Town] and joined me for a [holiday]. At the end of the holiday, I asked [the applicant] about her relationship with [the respondent]. I recollect [the applicant] said to me, “It is not good and will probably end but I am not sure”.
In mid-2013, the applicant completed a mail redirection notice in relation to her own mail to a post office box.
Ms K gives evidence of a further conversation with the respondent in May 2013 to the following effect:
19. … During that conversation we exchanged the following words:
[Ms K]: “I thought you said the relationship with [the applicant] is over. Why the hell is she still hanging around in your apartment?”
[The respondent]: “It is but she is taking much longer than the few months I expected. She says she needs more time. We are still friends and as I travel a fair bit if she needs it for a couple of days, why not help her?
In July 2013, the applicant and respondent attended a family event that took place on a ship. The parties were away for approximately four nights and shared a bed on the ship.
In October 2013, the parties stayed in Suburb W together with friends of the respondent.
The applicant asserts the parties separated on 23 December 2013.
The applicant contends that shortly after 23 December 2013, she moved out of the main bedroom in the Suburb M apartment. She rejects entirely the notion that prior to then she had occupied the second bedroom in the Suburb M apartment.
It is not in issue that the applicant moved out of the Suburb M apartment in mid-2015.
APPLICABLE LAW
Human relationships whether as existing de facto partners or former de facto partners are unique. De facto relationships like all human relationships take many forms and it is trite to say that no one relationship is the same as another. Such is the varied nature of human interactions. The Court must examine what these parties said and did and all of the circumstances attendant to their particular relationship in forming a composite picture that leads to a conclusion when the de facto relationship broke down.
Section 4AA(1) of the Family Law Act 1975 (Cth) (“the Act”) states that 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; 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.
The Act enumerates a non-exhaustive series of matters under s 4AA(2) that the Court may have regard to in determining whether a defacto relationship exists. They are:
(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.
Relevantly s 4AA(3) and (4) require careful consideration, recording that:
(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.
In Fairbairn v Radecki (2022) 400 ALR 613 (“Fairbairn & Radecki”) the High Court, within the context of a determination about the breakdown of a de facto relationship, observed as follows:
28. Section 4AA(1)(c) identifies the relationship which is the concern of the Act: “a relationship as a couple living together on a genuine domestic basis”. The existence of such a relationship is determined having regard to “all the circumstances” of a relationship; significantly, those “circumstances” include any or all of the circumstances listed in s 4AA(2), and, by reason of s 4AA(3), no particular finding about any circumstance is necessary for there to be a de facto relationship. Consistently with the reality that human relationships are infinitely mutable, in determining whether a de facto relationship exists a court is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate.
29. A de facto relationship will have broken down when, having regard to all the circumstances, the parties no longer “have a relationship as a couple living together on a genuine domestic basis”. Such a conclusion is not precluded by the presence of an ongoing relationship of some sort. That is not the inquiry. The question is whether a de facto relationship exists or has broken down.
30. In the context of a human relationship, “breakdown” refers to the “end” or “breakup” of what had been an enduring emotional bond. It is the “breakdown” or “end” of a de facto relationship that is the trigger point for the Federal Circuit and Family Court to be seized of jurisdiction to make a property settlement order under s 90SM of the Act. It would make no sense for such a jurisdiction to arise before a de facto relationship had ended. The appellant’s submission finds no support in statutory context, in history, or in any extrinsic material referred to the Court’s attention.
…
39. The language of s 4AA of the Act and its reference to “living together” requires no different approach to determining whether a relationship exists of the kind defined. “Living together”, consistently with authority, should be construed as meaning sharing life as a couple. Section 4AA does not prescribe any way by which a couple may share life together. Its language is sufficiently broad to accommodate the great variety of ways a de facto relationship may exist. That conclusion is supported by the varied factors listed in s 4AA(2). In a given case, some of the factors listed in s 4AA(2) may be relevant and some may be irrelevant; inevitably some may have greater prominence than others. A conclusion that a de facto relationship has ended may also arise because of factors not listed in s 4AA(2). Such a conclusion is mandated by s 4AA(3) and (4). In particular, s 4AA(4) is a statutory recognition that what may constitute a genuine de facto relationship is not be determined in the same way in every case by reference to rigid criteria that must always be satisfied. In that respect, the language of s 4AA(2)(b) does not assume that every de facto relationship must have a “common residence” to some “extent” and of some “nature”. Such a construction is entirely denied by s 4AA(3).
(Emphasis added)
(Footnote omitted)
CREDIT

There are many aspects of the relationship after August 2011 that are not in issue. The parties socialised together, occupied the same home, went away on holidays and attended celebrations of extended family members together. There are other matters, however, about which the parties are clearly at odds. In some instances, the evidence is antipodal such as sharing a bedroom from a particular point of time, having a sexual relationship or what was said in the heated discussion in August 2011.
Each party casts aspects of the case in absolute black and white terms. Each counsel opened the case by urging that the factual controversy can be resolved by a finding as to credit. Submissions were presented in the same way. It is the contention of each that their client’s case should be accepted in all instances of controversy. Such submissions presented in an absolute sense leave no room for findings that a party’s case can be established even where there is a finding adverse to that party on a particular issue.
Section 140(1) of the Evidence Act 1995 (Cth) requires that the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. This can be informed by ‘an actual persuasion of the fact’; inconsistencies may be resolved by evidence that is more probable than not or evidence that is consistent with incontrovertible facts or compelling inferences.
The Court is not obliged to nor is it necessary to resolve every factual dispute as between the parties. If it were otherwise, then judgments would be even more tediously verbose than they otherwise are. Thus, for example, it is unnecessary to resolve the controversy about who found the Suburb M apartment and in what circumstances as it is irrelevant to a determination of the wider issue. I have, however, read all of the evidence relied upon in the proceedings including the exhibits but do not propose to repeat all of it in these reasons. As the High Court reminds in Whisprun Pty Ltd v Dixon (2003) 200 ALR 447:
62. … A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
While each party attested to the truth of the assertions in their affidavit, they were each found wanting in aspects of their evidence as to matters of history and in some respects inconsistent with other evidence.
The applicant’s evidence suffered from deficiencies of memory and, in some circumstances, exaggeration. For example, the applicant in her affidavit contended that she created a handover manual for the new owners of the respondent’s Suburb M home. In cross-examination, the respondent’s evidence was that she did not create a handover manual but rather there was a document, being the Home Owners Association manual which was supplied by the developer, and another manual created by the respondent which he had used prior to the commencement of the relationship with the applicant. In her cross-examination, the applicant retreated from the absolute statement in her affidavit and contended that what she did was add to the existing manual rather than necessarily creating it.
The applicant in her affidavit suggested the parties travelled to Melbourne together in early 2012. This turned out to be incorrect. The respondent’s counsel says in his submissions under the heading of credit that the applicant says she annexed to her affidavit a photo which she says she took of the party in Melbourne. The submission records “she could not have taken the photo as she is in the photo” (footnote omitted) (at paragraph 26). True as that is, I do not regard what is in all likelihood infelicitous drafting as a matter going to her credit.
The respondent’s counsel submits that the applicant “went to lengths to suggest she had a cognitive deficit” (at paragraph 8). He then says:
8.… No current evidence was available or admitted to that issue. There was a report by a neuropsychologist, [Dr B]. It was an agreed position that the report would be admitted on a strictly limited basis to provide contextual background to the impact, if any, of the cross-examination on the applicant’s working memory and processing capacity {Exhibit 19}. Notwithstanding, there were number of points where the Applicant’s evidence was curiously vibrant and assertive, and at times appeared to have good recall and seemed across the materials without apparent deficit. As became plain from [Dr B]’s notes {Exhibit 20}, this may all have been a strategic display.
(Footnotes omitted)
It is my impression of the applicant’s evidence that there were occasions when the applicant had a good recall of certain events and at other times her memory was not good. She readily conceded that she relied upon documents to support her memory saying it was supported by an email, a text or an iCalendar entry. The iCalendar evidence was not tendered.
The respondent submitted that the applicant was at times argumentative, regularly did not answer a question, sought to make comments or was unresponsive. He referenced four pages in the transcript in support of the submission. I have examined those passages. I accept that the applicant in the five pages referenced, out of some 170 pages of her cross-examination, did not at times answer the question, was argumentative or was unresponsive. However, on the whole I found her to be responsive to the question she was asked, answered them and was not argumentative.
The respondent’s counsel through his written submissions submits that the applicant at times fashioned her evidence to suit a “narrative” (at paragraph 11). One such “narrative” as I understand it was her involvement in the purchase of the Suburb M apartment. Counsel for the respondent seeks to draw a comparison between what he describes as generalised evidence in her primary affidavit and evidence that she gave in her affidavit in reply which was much more specific. In support of this submission, he placed emphasis on what was described as an error in the applicant’s affidavit in relation to a photograph. The submission contends that the applicant did not correct the error prior to giving evidence. The respondent’s counsel suggests that some inference contrary to the evidence of the applicant should be drawn such that, as I understand the submission, her “narrative” should not be accepted.
I do not accept that submission. The respondent quite appropriately references in his written submissions that her senior counsel at the commencement of the hearing said there were various errors in the affidavit of the applicant. In that respect, senior counsel for the applicant said during her examination in chief the following:
[COUNSEL FOR THE APPLICANT]: … And you’ve sworn two affidavits in these proceedings?
[THE APPLICANT]: Yes.
[COUNSEL FOR THE APPLICANT]: And the last on 8 August 2022?
[THE APPLICANT]: Yes.
[COUNSEL FOR THE APPLICANT]: And the first on 13 February 2020?
[THE APPLICANT]: Yes.
[COUNSEL FOR THE APPLICANT]: And you rely on those affidavits. Is that correct?
[THE APPLICANT]: Yes.
[COUNSEL FOR THE APPLICANT]: Your Honour, there are some what I might call trivial matters in the affidavits. I don’t see any profit in taking the complainant to them at this stage. I don’t believe they will be relevant in the way that - - -
HIS HONOUR: It’s a matter for you, [counsel for the applicant].
[COUNSEL FOR THE APPLICANT]: Yes. Well, it’s - - -
(Transcript 23 August 2022, p.50 line 35 to p.51 line 1)
In the course of the applicant’s cross-examination she was asked about the photograph as follows:
[COUNSEL FOR THE RESPONDENT]: And the photograph that appears on page 16 couldn’t possibly have been taken on 27 September?
[THE APPLICANT]: No. There – as I said, they’re two - - -
[COUNSEL FOR THE RESPONDENT]: Ma’am, you agreeing with me?
[THE APPLICANT]: Yes. Of course I am.
[COUNSEL FOR THE RESPONDENT]: Saying your evidence is wrong?
[THE APPLICANT]: I’m definitely – because – as Mr - - -
[COUNSEL FOR THE RESPONDENT]: Ma’am, Ma’am, Ma’am?
[THE APPLICANT]: - - - [counsel for the applicant] said at the beginning, there were some errors in our affidavit and we would come across them.
[COUNSEL FOR THE RESPONDENT]: I don’t recall any errors being identified at the beginning?
[THE APPLICANT]: [counsel for the applicant]?
[COUNSEL FOR THE RESPONDENT]: No, no. He can’t talk to you?
[THE APPLICANT]: Well, he said at the beginning that there were some errors - - -
[COUNSEL FOR THE RESPONDENT]: Well?
[THE APPLICANT]: - - - and they might be small but we would mention them - - -
[COUNSEL FOR THE RESPONDENT]: Ma’am?
[THE APPLICANT]: - - - and that’s one of them.
- - - afraid that doesn’t cut the mustard?
[COUNSEL FOR THE RESPONDENT]: Sorry?
You put this photograph on - - -
[THE APPLICANT]: Yes.
[COUNSEL FOR THE RESPONDENT]: - - - to somehow support the contention that you were at an open house inspection on 27 September 2012; correct?
[THE APPLICANT]: Not .....
[COUNSEL FOR THE RESPONDENT]: Correct?
[THE APPLICANT]: I can’t tell you – I can’t tell you off the top of my head. I don’t remember. So I would have to look at the metadata on my pictures.
(Transcript 23 August 2022, p.126 lines 10–37)
I have no reason to find in light of that evidence that the applicant purposely sought to mislead the Court nor do I accept the submission as advanced by the respondent that it undermines her credibility as to whether or not she attended any inspections of the Suburb M apartment.
A similar submission about the applicant crafting a narrative was made in relation to the use in her affidavit in reply of documents produced under subpoena. The real estate agent selling the Suburb M property produced various documents in response to a subpoena. Those documents show that the real estate agent was communicating with the applicant regarding properties; there were emails providing the applicant with a copy of the contract and arrangements to inspect strata records for the Suburb M apartment.
The respondent’s counsel submits that the applicant used only those documents produced by the real estate agent under subpoena that were supportive of her case by annexing them to her affidavit and excluding documents that were not supportive of her case. It was submitted that this casts a shadow over the applicant’s evidence in that she has “cherry picked” documents (at paragraph 19) and presented the evidence as if she had an independent recollection. This submission taken with the evidence about the photograph so it goes “puts in question her narrative as a whole” (at paragraph 19).
I do not accept this submission. In part because of my findings in relation to the photograph and in part because the documents attached to her affidavit were produced under subpoena and thus available for tender in whole or in part as was ultimately done by both parties. Had these documents been solely in the possession of the applicant then such submission may have had some greater force. The reality is, however, that the documents were produced under subpoena. The respondent could just as easily have tendered the documents; there was no secret about what the documents said as they were at Court and able to be inspected by all parties. I do not draw an inference adverse to the credit of the applicant as is contended by the respondent’s written submissions on this issue.
The respondent further submits the following:
28. Perhaps the most damning evidence against the Applicant is found in the documents produced by [Dr B] {Exhibit 20}. Part of that bundle is an 8 page selection entitled in the footer “[…] Compiled Accommodation Disability Briefing.doc”. The Applicant was cross-examined on this material [in early] 2023 in the course of which she initially identified the document as hers. As she was cross-examined, the Applicant tried to distance herself from the document, referring to support workers who might have assisted with it’s preparation. The Court would be comfortably satisfied that the said document and it’s contents are those of the Applicant.
29. Page 6 of that 8 page selection lays bare the Applicant’s strategy. In it she plainly records that in truth, she does not have independent recollection of events but is reliant upon other records such as photos or passport stamps. She boldly sets out her strategy saying “I need to state that I know happened as opposed to relying on recall. A stock answer …”. The Applicant then develops her strategy stating that any evidence which conflicted was deliberately left out. The document records an example where her brother’s records did not match hers and so his evidence on that was left out. In cross-examination, the Applicant asserted this was the only instance of that occurring. The Court would not accept that explanation but would rather accept the unambiguous statement in the Exhibit. On page 7 of the selection, the Applicant expands on the ‘props’ she would rely upon if she could not verify an event.
(Footnote omitted)
I do not accept that the “[a]pplicant’s strategy” is laid bare. Nor do I accept that a reading of the whole of that document together with the applicant’s evidence taken as a whole supports such a submission. In her affidavit filed 17 February 2020 she says:
11.I make this affidavit from my own knowledge however, due to the aforementioned medical conditions I suffer, I have also relied on photographs, my passport and emails, as well as an electronic diary. I have for many years kept my diary on a computer calendar. During the time I have used Apple Macintosh computers these diaries have been in the form of i-Calendars, which is the standard type of calendar on an Apple Mac, which allows for share calendars when access is granted to another person. [The respondent] has access to the shared icalendar.
The words relied upon in the respondent’s submission at paragraph 29 need to be seen in the context of the entire passage which is as follows:
Even though been gathering evidence for the Affidavit it doesn’t mean I recall the event and the date it took place.
The true answer is probably NO, I don’t recall the event not that particular day.
I need to state that I know what happened as opposed to relying on recall. A stock answer … referring to the annexure of my affidavit, or [i]f I can have in [m]y hand any evidence I have filed, for my reference.
Note though that maybe at best the evidence refreshes for me the string of events, or the primary evidence piece eg. a photo, or passport stamp clearly says so.
(Exhibit 20)
During cross-examination on this document, the applicant said:
[THE APPLICANT]: That’s – but I say there would be many events that I certainly do know every aspect of it and there might be others that I don’t recall or that have other things that confirm to me.
(Transcript 15 February 2023, p.413 lines 20–22)
In light of the above evidence, I do not accept the respondent’s submission in the absolute terms with which it is made. As I said earlier, I accept that the applicant’s recall on some topics was demonstrated to be incorrect. I do not, however, accept that she has no independent memory on any aspect of the evidence.
The respondent’s counsel’s written submissions on the issue of the respondent’s credit records:
30. It is submitted the court would in the main be satisfied with the Respondent’s evidence who gave his evidence in a composed and frank manner. He was responsive, clear and made appropriate concessions. He did not try to avoid questions, nor was he dismissive or glib. That is not to say his evidence was without it’s own difficulties.
I agree that there were difficulties with respondent’s evidence. I found his evidence unreliable for a variety of reasons.
In paragraph 65 of the respondent’s affidavit, he says that on 4 October 2012, while driving to work, he saw a “for sale” sign outside an apartment and immediately contacted the selling agent and arranged for an inspection on that day. In his examination in chief, the respondent corrected his affidavit by saying that he saw the “for sale” sign on 25 September 2012. He said that the error was brought to his attention when he reviewed the sheet provided by the selling agent in relation to the inspections he undertook for the apartment. The respondent otherwise maintained that he saw the sign while driving to work and that contacted the selling agent that same day for an inspection. In his examination in chief, the respondent also corrected his affidavit to say that he had another inspection on 4 October 2012 and that he put in an offer for the apartment on 5 October 2012 (Transcript 26 August 2022, p.300 lines 5–47).
In paragraph 98 of his affidavit, the respondent says that he ceased attending the applicant’s family functions from August 2011. He says that the applicant’s family either stopped inviting him or the applicant stopped informing him of the invitations. In his examination in chief, he corrected this to concede that, based on the evidence presented by the applicant and upon reviewing his business activity statements and his credit card statement, he was in Melbourne in early 2012 and that he did spend time with the applicant and her family, including a dinner with them. He said that could not be sure whether he attended the applicant’s sister’s birthday but that he accepted that he might have (Transcript 26 August 2022, p.301 line 1 to p.305 line 2). I accept that he did. He also attended a family event in City Z in June 2012, which the applicant attended.
In paragraph 116 of his affidavit, the respondent says that in 2013, he had a conversation with the applicant about what she was going to do for her birthday. In his examination in chief, the respondent corrected this to say that upon reviewing his business records he discovered that of the time he gave for the conversation in 2013, he was in the BB Region with some business associates. He said that other than the date, evidence of the conversation remained correct and that the date of the conversation would have been prior to the applicant travelling to the United States of America (Transcript 26 August 2022, p.305 line 40 to p.306 line 1).
In paragraph 42.1 of the respondent’s affidavit, the respondent says that from mid-2011 they “ceased socialising with friends together”. In cross-examination, the respondent conceded that it was incorrect and that he wrote that in his affidavit because it “would have been [his] recollection at that time” (Transcript 26 August 2022, p.325 lines 1–13). The sheer number of social events the parties attended after mid 2011 calls into question the reliability of the respondent’s recollection.
In paragraph 42.2 of the respondent’s affidavit, he says that from mid-2011 “we ceased taking holidays together with the exception of one trip to [Country P]”. In cross-examination, the respondent accepted that it was wrong and again repeated that it was written in his affidavit because it was his recollection at the time (Transcript 26 August 2022, p.325 line 41 to p.326 line 16).
In reference to paragraph 42.13 of the respondent’s affidavit where the respondent says “I stopped going to Melbourne with [the applicant] to see [the applicant’s] family”, the respondent said in cross-examination that he had corrected that error earlier (being in his examination in chief) (Transcript 26 August 2022, p.328 lines 16–20).
The respondent was asked about paragraph 45 of the applicant’s affidavit filed 13 February 2020, which details an occasion where they went to watch a movie together. The respondent accepted that he went to the movies with her and that his affidavit filed 11 March 2016 was incorrect to say that he did not go to films and did not go out with her. He also conceded that as deposed by the applicant, this occurred on many occasions (Transcript 26 August 2022, p.334 lines 16–27).

In paragraph 10 of the respondent’s affidavit filed 11 March 2016, the respondent says that “we first met again in April 2006”. The respondent conceded that the word ‘again’ was incorrect as this was the first time he met the applicant (Transcript 26 August 2022, p.332 line 39 to p.333 line 28).
He also admitted that a statement in an earlier affidavit was false. The particular event which he agreed was false was a matter of no consequence whatsoever in the overall factual matrix. I recognise that because a person has made a false statement on one occasion does not mean that the entirety of their evidence is forever impugned. It does, however, impact on the reliability of his evidence. In that respect, I do not accept the respondent’s counsel’s written submission at paragraph 42 that it impacts only on his reliability as to when he met the applicant. To falsely swear to aspects of the evidence in an affidavit is not a matter to be taken lightly.
On balance, for the above reasons, I find the applicant to be a more reliable witness than the respondent. This conclusion is reinforced by some of my specific findings as set out later in these reasons.
CONSIDERATION OF THE MATTERS UNDER SECTION 4AA AND ANY OTHER RELEVANT MATTERS
Before dealing with the specific matters enumerated in s 4AA(2) and being mindful of s 4AA(3) and (4) as well as the observations of the High Court in Fairbairn & Radecki, there are some specific matters of evidence that need to be addressed.
The Respondent’s witnesses
In the respondent’s case there was evidence including from his former wife, Ms K, a professional and from Mr and Ms C which recorded conversations with the respondent in which he said that his relationship with the applicant had ended, that he had asked her to move out, and that she had refused to do so.
Notwithstanding the availability of the respondent’s witnesses, the applicant declined the opportunity to cross-examine them. It is not controversial that the applicant clearly joined issue with the evidence of each witness in relation to those matters involving conversations attributable to her.
I have no reason not to accept the evidence given by each of the witnesses in the respondent’s case in so far as they record conversations between themselves and the respondent.
The respondent’s counsel submits:
174. Critically, [Mr C], [Ms K] and [Mr L] [all depose as to conversations with the Respondent in which he stated unequivocally that the relationship with the Applicant had ended. He says this to [Ms K] at the time in August 2011 and again in July 2012 in a similar vein. He has 3 conversations with [Mr C] during 2012 to the same effect. In December 2012 he seeks legal advice from [Mr L] related to the separation. These witnesses, all unchallenged, all speak to the Respondent’s consistent statements as to a separation, his frustrations with the Applicant’s continued presence in his home and his desire to be compassionate to her. All sentiments consistent with his own evidence.
I accept that submission is so as far as it goes but that is not the ends of the enquiry.
While the respondent relies on the evidence of his witnesses to establish that he had ended the parties’ relationship, there is other evidence that suggests to the world that he was conveying something to the contrary.
The respondent tells Mr C in early 2013 that the applicant “went back to Melbourne for Christmas to be with her family” (affidavit of Mr C, paragraph 15). The parties are at issue as to where they spent Christmas 2012.
The applicant asserts they spent Christmas Eve 2012 together in the Suburb M apartment, having dinner with the respondent’s sister and her family at their home in Suburb R and spending Boxing Day 2012 with the respondent’s mother at the Suburb M apartment. The respondent says it did not occur. A natural witness to have called in the respondent’s case on this issue would have been his sister or someone from her family present at the event. They were not called.
The respondent during cross-examination said:
[COUNSEL FOR THE APPLICANT]: And on 25 December you hosted a lunch at your place with [Mr AD] and his mother and daughter?
[THE RESPONDENT]: Yes, I – I – I think my evidence is I didn’t recall any such lunch.
[COUNSEL FOR THE APPLICANT]: Well, you say you can’t recall it?
[THE RESPONDENT]: Yes, I – I – I – didn’t happen, I said.
[COUNSEL FOR THE APPLICANT]: Okay. You didn’t happen?
[THE RESPONDENT]: Yes.
[COUNSEL FOR THE APPLICANT]: You – okay. And she’s wrong. She has just made that up?
[THE RESPONDENT]: Yes. Well, she - - -
[COUNSEL FOR THE APPLICANT]: She was definitely there though, wasn’t she, at Christmas?
[THE RESPONDENT]: She – she could have been in the house. I can’t recall, you know. I – but I would not have had lunch or Christmas Day with [Mr DD].
[COUNSEL FOR THE APPLICANT]: Okay. [Ms CC] was there?
[THE RESPONDENT]: Yes, very likely. Yes.
[COUNSEL FOR THE APPLICANT]: And she came home after Christmas Eve, [Ms CC], to the house?
[THE RESPONDENT]: Yes, very likely.
[COUNSEL FOR THE APPLICANT]: And at that time [Ms EE] was away for a couple of weeks and [Ms CC] was staying?
[THE RESPONDENT]: We went to [Ms EE’s] house on – on Christmas Eve. If [Ms EE] was not in town, it was the practice for myself or my sister to look after her, so, yes, [Ms CC] would have been in – in the house, yes.
[COUNSEL FOR THE APPLICANT]: Okay. Now, on the 26th, that’s the day after Christmas, you saw the – well, [the applicant] saw the boats leave the harbour, [Suburb FF]?
[THE RESPONDENT]: Yes.
[COUNSEL FOR THE APPLICANT]: And she bought [Mr GG] and [Mr G] back for a drink?
[THE RESPONDENT]: Yes.
[COUNSEL FOR THE APPLICANT]: And if you look at page 53 of the exhibits?
[THE RESPONDENT]: I’m trying to look at it right now. 53, you said, yes?
[COUNSEL FOR THE APPLICANT]: Yes, it’s a very nice photograph of [Ms CC], yourself and [the applicant]?
[THE RESPONDENT]: Yes.
[COUNSEL FOR THE APPLICANT]: And that was taken by [Mr GG]. You can see that was taken by [Mr GG]?
[THE RESPONDENT]: Yes.
(Transcript 26 August 2022, p.371 lines 14– 47)
In light of the applicant’s evidence, the respondent’s confirmation that she could have been in the house on Christmas Day, his agreement that she was present on Boxing Day and in the absence of calling a witness, I accept the applicant’s evidence that she was in Sydney rather than being in Melbourne for Christmas as asserted by the respondent to Mr C.
The respondent says that he told the applicant in late 2011 that he would not tell people that they had separated. The applicant denies this conversation occurred. Irrespective of her denial, on the respondent’s own case, he had already told his former wife in mid-2011 that he had separated. He subsequently repeated the same thing to his solicitor and [Mr C]. The respondent’s subsequent conduct is inconsistent with what he said to the applicant.
Emails annexed to the affidavit of the applicant’s sister dated 7 April 2013 are inconsistent with what the respondent was otherwise representing. One such email from the respondent to the applicant’s sister is quite effusive when he says “[t]he apartment is fantastic. We…love it”. He also describers it in the same email as “our home” (affidavit of Ms E, Annexure C). In another email, he contacts the applicant’s sister to see if she can contact the applicant who is in V State with the email stating, “I have been trying to contact [the applicant] for over a week and her phone is not accepting my SMS” (affidavit of Ms E, Annexure C).
The respondent’s evidence of telling his witnesses the parties have separated, that he is trying to get her to move out and where he had described her to Mr C in early 2013 as “thick skinned” (affidavit of Mr C, paragraph 16), presumably for her refusal to move out in the face of his repeated requests, sits incongruently with describing the apartment in an email as “we love it” and its “our home” as well as his attempts to contact her.
Conversation between Ms C and the applicant
Ms C, in her affidavit refers to conversations between herself and the applicant in which she records amongst others things that the applicant informed her on one occasion during the trip to Country O and Country HH that “[she has] to find somewhere else to live” (affidavit of Ms C paragraph 14), and on a trip to City S in early 2013 that “[her] relationship with [the respondent] is over and he wants [her] to move out but [she has] nowhere to go” (affidavit of Ms C paragraph 15).
In each instance, the applicant in her affidavit in reply denied making these statements to Ms C.
The applicant did not require Ms C for cross-examination. There was what could be at best described as cursory cross-examination of the applicant by the putting of the propositions she had previously denied.
In the respondent’s written submissions, his counsel referred to the two conversations. He described the first conversation in the following terms “[t]his trip in [late] 2012 is particularly relevant because of the uncontradicted evidence of [Mr and Ms C] … Importantly, [Ms C] deposes that the [a]pplicant said to her at this time ‘I have to find somewhere else to live’” (footnote omitted) (at paragraph 93). It is not accurate to describe it as “uncontradicted” because the applicant denies the conversation.
Otherwise, the respondent’s counsel submits that the witnesses for the respondent gave evidence of things they heard and should be accepted as truthful as they were not cross-examined (at paragraph 173). There is no immutable proposition of law that a court is obliged to accept evidence that has not been the subject of cross examination.
The respondent’s counsel also submits (at paragraphs 174 and 175) that the witnesses evidence makes the respondent’s evidence, more accurately submitting:
175.… it is highly improbable, and likely inconceivable, that the Respondent would make these independent statements to 3 unrelated witnesses if in fact the separation had not occurred. This is particularly so when one considers the evidence of [Ms C] as to statements made to her by the Applicant.
I do not accept this submission. I accept that the respondent told these people what they record, I do not accept that it by necessity follows that the “separation” occurred or that it means I must accept what Ms C says over the applicant’s denials.
I am unable to resolve the conflict in the evidence on this issue. I do not reject Ms C’s evidence nor do I reject the evidence of the applicant on this issue.
Even if I were to prefer Ms C’s evidence on this issue (which I do not), that does not mean that I could not otherwise accept the applicant’s evidence on other matters where it conflicts with the case of the respondent. Courts are not obliged to reject the whole of the evidence of a party or witness just because they do not accept that party’s evidence on a particular issue. As O’Loughlin J observed in Cubillo v Commonwealth of Australia (No 2) (2000) 103 FCR 1:
118. Before commencing a detailed analysis of the evidence in this case, I desire, in the first instance, to make clear the approach that I have taken to the evidence of a witness where I have found some, but not all, aspects of the evidence of that witness to be unreliable. Simply because I find against a party or a witness on one issue and reject some part of the evidence of that person, it does not mean that what remains is tainted, or otherwise lacks probative force, with the consequence that I should dismiss all the evidence of that person. The principles enunciated in the cases indicate that the trial judge is entitled to believe part of the evidence given by a witness and to reject the rest. After making an assessment of the evidence, after utilising the advantage of having seen and heard all the witnesses, and after forming an impression of each, the confidence that the judge reposes in a particular witness is assessed accordingly. Where evidence has a logical probative value, a judge will rely on it; where it contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force, the judge will, in all probability reject it or, at least, not rely on it…
Like many such cases, the resolution of this matter does not turn on a singular piece of evidence. As Beazley P observed in Nguyen v Tran (2018) MVR 16:
54. The fact finding exercise which is required to be undertaken by the tribunal of fact, whether that be judge or jury, is not properly approached in that segmented way. The tribunal of fact, after hearing the witnesses, making assessments as to the credit and reliability of their evidence and examining the documentary evidence, if any, must weigh the whole of the evidence to determine whether the party bearing the legal onus has proved his or her case.
I am simply unable to resolve the conflict in this one piece of evidence. I will, however, weigh it with the all of the evidence in determining which of the applicant or the respondent have discharged the onus of proof in establishing their case.
Sleeping in the same bedroom after purchase of the Suburb M apartment in 2012
The respondent contended that notwithstanding the asserted separation in August 2011, the parties continued to sleep in the same bedroom in the Suburb M home. This was notwithstanding the Suburb M home having several bedrooms. When asked why he did not move into another bedroom, he answered that he “stayed in that bedroom because it was [his] house and [his] bedroom and [his] bed” (Transcript 26 August 2022, p.319 lines 15–16).
Upon acquisition of the Suburb M apartment in late 2012, the respondent says the parties did not thereafter share the same bedroom in the Suburb M apartment and that the applicant slept in the second bedroom. He says there were only two occasions when they otherwise shared a bed.
The applicant maintained that the parties shared the same bedroom in the period between the respondent’s date of the breakdown of the relationship and that contended for by the applicant. She says she did not sleep in the second bedroom in the apartment.
Mr C gives evidence of a conversation with the respondent in August 2013 as follows:
19. On Sunday 25th August 2013 when [the applicant] went for a walk with my wife, [the respondent] and I had a conversation, part of which was as follows:
Me: “It’s really obvious you both are just over each other. How can you sleep in the same room with her?”
[The Respondent]:- “[Mr C] I have a mental wall that blocks [the applicant] out of my thinking and feelings. It’s like she is not there. We have not been physical with each other for years. We never go to bed together and I switch off the fact that she is next to me. Most of the time she watches TV all night or is on the internet or sleeps in the lounge till I get up and then she goes to bed”.
Me: “I am not sure if you are too good or just too silly in not forcing her out”.
[The Respondent]: “My family has always practiced compassion. I will treat [the applicant] as a friend who has asked for a favour to stay at my place till she sorts things to move out”.
(Emphasis added)
There is no part of that conversation that suggests the applicant is sleeping in the second bedroom; indeed, it is quite to the contrary. The conversation is entirely consistent with the applicant and respondent sharing the same bedroom, laying in the same bed next to each other. That conversation is consistent with the evidence of the applicant. The conversation occurs at a time after the respondent has purchased the Suburb M apartment.
I prefer the applicant’s evidence on the issue of where the parties slept in the Suburb M apartment.
The note about counselling
The respondent through his counsel’s submissions says the following about this note:
148. There are a number of extraordinary aspects to this note. Firstly, that it is a note at all rather than a conversation. Secondly that the Applicant was actually proposing counselling. It will be recalled that the ‘heated argument’ was 16 months prior and in any event, the Applicant asserted that was a business dispute. Further, in her trial affidavit between 55 & 66 the Applicant recites a number of activities she says are illustrative of the health of their relationship at that time. In her oral evidence the Applicant was asked why she was proposing counselling. Her responses included that there were “communication” issues and that the suggestion had some origin in her conversation with her brother. In her trial affidavit, the Applicant does not mention ‘communication issues’, rather she lays the blame on the Respondent suggesting he was embarrassed by her ill-health.
149. The more likely explanation for the note is that having travelled to [Country O] & [Country HH] where she spoke with [Ms C] as to needing to find somewhere to live, then returning to Sydney where her belongings are in the garage and she is in a 2nd bedroom, she adopted her brother’s suggestion of 5 months earlier and proposed counselling attempting to prevail further on the Respondent and forestall the inevitable.
(Footnotes omitted)
I find nothing extraordinary about the note other than it is consistent with the applicant’s case that the parties were having difficulties in their relationship. The propositions advanced in paragraph 149 of the submissions were not explored with the applicant in cross-examination.
Did the applicant offer to contribute to the purchase of the Suburb M apartment?
The respondent says in his affidavit:
74. My decision to purchase the [Suburb M] property occurred very quickly. Notwithstanding this, there was never any discussion with [the applicant] or consideration that she may purchase the [Suburb M] apartment jointly with me or in any way acquire an interest in the property or that she would be involved in the renovations and share in any capital growth realised from the [Suburb M] apartment. …
(Emphasis added)
The applicant denies this assertion. She says in her affidavit in reply:
31. In response to paragraph 74 of [the respondent’s] Affidavit I say I did offer to contribute to the purchase of the apartment, [the respondent] expressed surprise given my recent losses on the two townhouse developments, and stated “You’re broke”.
Mr C gives evidence of a conversation with the respondent in early 2013. His affidavit records the following:
15. On 12th January 2013 I had a meeting [the respondent] at the [rural property]. During that meeting [the respondent] and I had a conversation using words to the following effect:
[The respondent]:        “I have purchased a new place in [Suburb M]. It is an apartment only […] metres away from my previous place.”
Me:“Has [the respondent] moved out yet?”
[The respondent]:        “She asked me if she could buy a share of the unit. I really could not believe that she would even ask such a question. She told me she could not find a place so quickly and asked if she could stay in the apartment because she needs to attend to medical appointments. She went back to Melbourne for Christmas to be with her family and I am hoping she is looking to maybe re-establish herself there.”
Me:“Have you spoken to her family?
[The respondent]:        “I have spoken to her brother [Mr D]. You met him. He is […] from Brisbane”.
Me:“Yes I recall meeting him at your birthday party”.
[The respondent]:        “She does not mention her family anymore, they stopped contacting me and I do not get asked to visit them anymore. I was really pissed off that a friend of hers from Melbourne sent a Christmas card this time addressed only to her and sent it to my apartment. I really found that to be very rude especially since they stayed at my previous house. I told her not to get any of her mail sent to my apartment”
(As per the original)
The respondent’s affidavit is inconsistent with what he said to Mr C.
Exhibit 23 is a copy of the respondent’s affidavit filed 11 March 2016. Paragraph 49 is to the following effect:
49. In [late] 2012, I purchased a unit at [AJ Street], [Suburb M] (“the [Suburb M] apartment”). At that time, [the applicant] said to me “Could I purchase a share of this apartment with you?” I was absolutely shocked by this request and I replied “You are joking aren’t you? It is over. We are separated. You need to find a place of your own”

The respondent’s evidence in his affidavit sworn in 2022 is inconsistent with what he swore in 2016. In 2022, he says there was no discussion while in 2016 he says there was. The two propositions are irreconcilable. If the parties had separated as contended for by the respondent, on one view, it would be implausible that the applicant would offer to acquire an interest in or contribute to the costs of acquisition of the Suburb M apartment.
The respondent in his written submissions on this topic says:
87.… Whilst the Applicant asserts wanting to contribute monies, she produces no bank statement to establish she had funds and no communication with the Respondent to this effect. The relevance of the issue goes as much to the lengths to which the Applicant has gone to in reinventing the past and fashioning her evidence. Her Trial affidavit had few details which only came in her Reply affidavit after documents had been produced and disclosed. She tried to create impressions through photos which proved implausible. She claimed to attend inspections with no evidence of having done so.
For the above reasons, I do not accept this submission as it is inconsistent with the evidence.
I prefer the applicant’s evidence.
Cancellation of the Applicant’s Supplementary Credit Card in Early 2012
The respondent says in his affidavit that in early 2012, he cancelled the applicant’s supplementary credit “as [he] wanted to send a further message to [the respondent] that she needed to move on with her life independently of [him]” (at paragraph 53).
The applicant says the whole account was cancelled not just her supplementary card.
I find the respondent’s explanation for cancelling the card implausible. If it was that he wanted to send a message to the applicant that she needed to move on with her life and live independent of him, then his actions are inconsistent with such a proposition. In that respect, in the six or seven month period between April 2012 and November 2012, the parties attended a number of social functions together, friends of the applicant stayed in his home, they attended functions arranged by his side of the family including his sister’s birthday and a Christening in Brisbane in mid-2012, and the applicant was invited to join the respondent on a holiday to Country P and Country O in mid-2012 as well as a business trip to Country O and Country HH in late 2012. In each overseas destination, they shared a bed in a hotel. Such conduct is completely inconsistent with conveying the message that the respondent allegedly wanted to send.
I prefer the applicant’s evidence.
Exhibit 9 and offer to visit New Zealand
Exhibit 9 is a letter written by the respondent in mid-2014 well after the relationship broke down.
The applicant and the respondent each submit as to the “expositive” force of Exhibit 9.
The applicant submits:
39.… Annexed to the [the applicant’s] affidavit of 11 July 2022, being annexure L, the [respondent] provides a copy of his proposal – a document entitled “Lifestyle Panning – [the applicant]” for the [applicant] to leave the [Suburb M] apartment. In paragraph 1 of this document, the [respondent] states:
“there is no benefit in trying to identify when it happened”.
According to the [respondent], he knew precisely when it had occurred. The [respondent’s] whole case is based on his allegation that from August 2011 he knew the parties had separated. This document defeats that assertion in and of itself. Again, at paragraph 23, the [respondent], under the heading “Announcements of our Intention to Separate”, states:
“I have not made any statement to our neighbor [sic], my friend, clients or family”.
This statement completely contradicts the [respondent’s] later evidence both written and at the hearing, together with the evidence of each witness in his case about him confiding in them about the separation. This document, written by him in June 2014, exposes the [respondent’s] version of events relied on in his case as opportunistic recent invention.
“I have invited you for my trips to [KK Town] and the [ship]. You have been invited to all engagements from my clients, friends and family.”
This document alone underscores the [respondent’s] credibility issue: how is it that this version of events can sit with his evidence that he had earlier told the [applicant] the relationship had finished and confided in friends to that effect. The parties had not separated in August 2011. If anything, this contemporary document in June 2014 speaks of a relationship having ended much closer to the time when the [applicant] asserts.
The respondent submits:
67. The full letter is expositive on a number of levels.
•Firstly, this letter is clearly not the start of a breakdown, rather it is the Respondent at his wits end.
•The letter clearly references the Applicant’s verbal accusations for many nights “back in 2010”, consistent with the Respondent’s narrative.
•The letter references the Applicant’s stated concerns about how she would support herself – again consistent with the Respondent’s narrative as to why he let things drag on.
•The letter makes plain the Respondent had remained silent as to the separation but that during that time the Applicant had been invited to social engagements from his friends, clients and family – again consistent with his narrative.
•The letter notes that for over 12 months, he had not received invitations from the Applicant, her family or friends to gatherings – consistent with the Respondent’s narrative but not that of the Applicant.
I am satisfied that the applicant’s submission is a more accurate “exposition” of the force of Exhibit 9, speaking of a relationship that had only recently broken down as opposed to one that had broken down almost 2 years earlier.
I do not accept that it displays the respondent “at his wits end”; either way it is on anyone’s case after the relationship has ended. I do not accept a reference back to accusations in 2010 is supportive of the respondent’s case where he says the argument occurred in 2011. He did not ever contend that the heated argument occurred in 2010.
The third point is neither affirmative nor contradictory of either party’s case.
The purported silence of the respondent referred to in the fourth point as pointed out by the applicant’s submissions is inconsistent with what he actually did.
More to the last point the submission might have force if there was evidence of events that he was positively excluded from (other than the trip to V State which either way occurred some 14 or 15 months earlier). No such evidence was adduced. The fact was that the applicant was invited to and accompanied the respondent to family and social events throughout the 2013 calendar year.
Exhibit 9 contained the following paragraph:
I have not made any statement to our neighbour, my friend, clients or family. I have invited you for my trips to [KK Town] and the [ship]. You have been invited to all engagements from my clients, friends and family.
The applicant said that the reference to KK Town was reference to an invitation by the respondent to attend a trip to New Zealand in late 2013. The applicant said that she did not go because the parties had separated shortly prior to when the trip was to occur. The respondent conceded that the reference to KK Town could be a reference to that trip, albeit he was not sure.
The applicant said in her affidavit in reply in relation to the Country P trip that she would not have gone on holidays with the respondent if they were not a couple. She was not challenged on this assertion. In light of evidence that going to Country P was entirely consistent with her belief that they remained a couple, I find that her actions in not going to KK Town was entirely consistent with her case that they were no longer a couple.
I do not accept the respondent’s submission that the applicant was “fashioning her evidence” to fit a factual narrative (at paragraph 108). In many respects, the factual matters are not in dispute. There was a trip to KK Town in late 2013. The applicant says she was invited but did not go. The respondent denies she was invited but refers to a trip to KK Town and says it could have been that trip.
In circumstances where the applicant asserted the trip occurred shortly after she says they separated in late 2013, where I find her more reliable than the respondent and his evidence was that he was not sure, and where I regard it as implausible that in writing a letter about their “intention to separate” he would refer to events that may on one version have occurred years earlier leads me to prefer the applicant’s evidence.
Evidence of Applicant’s Brother
The respondent asserted that he had a conversation with the applicant’s brother in July 2012 during which he asked the applicant’s brother to try and encourage the applicant to move out of the Suburb M home. The applicant’s brother denied that specific conversation took place.
He was cross-examined by the respondent’s counsel and maintained his denial. The brother’s evidence was not impeached by cross-examination. Counsel for the respondent says that other than in relation to some omission from his affidavit he should be accepted as truthful. I regard the omission as irrelevant to an assessment of his credibility but accept the submission that his evidence was truthful.
In circumstances where I have otherwise found the respondent’s evidence in a number of instances to be unreliable, I prefer the evidence of the applicant’s brother.
The parties’ relationship changed after August 2011
The respondent contended that the parties’ relationship after August 2011 was very different to that which the parties enjoyed before that date. To that end his affidavit contained assertions that after August 2011 he ceased being invited to family functions, the parties ceased socialising together and, with the exception of the Country P trip, ceased holidaying together. The respondent resiled from each of these propositions.
I am not satisfied there is a discernible difference between the relationship after August 2011 to that which existed before that date. There is, however, a discernible difference after December 2013. The onus rests upon the respondent to establish that aspect of his case. I am not satisfied that he has. The parties continued to socialise together, they tacitly represented to extended family their relationship had not broken down in that they did not tell extended family that it had broken down and attended family functions together. I am unable to discern a difference between August 2011 and December 2013 to that which existed before August 2011.
Exhibits 10 and 17 are emails sent by the applicant to a friend and a building contractor in early 2013. In each email the applicant refers to the respondent as “my partner”. Those emails are consistent with the applicant’s view of the nature of her relationship with the applicant as at the date they are sent.
The heated discussion in August 2011
There is no issue that the parties had a heated discussion in August 2011. The point of difference was what the discussion was about, whether the applicant cast aspersions as to the respondent’s character, whether he wrote her a letter asking her to withdraw her allegations, and whether he thereafter told her that the relationship was over and that she would have to move out of his home.
As is so often the case in interpersonal relationships, there are no witnesses to the conversation. The letter that the respondent wrote and gave to the applicant was not produced. She disputed the existence of the letter saying in her affidavit there was no such letter. The respondent contended he did not have the letter. The applicant contended that there was a letter written by the respondent but that it related to business matters that sparked a heated discussion. The applicant contended she did not have this letter.
In that respect, the respondent submits as follows:
126. Further, the picture painted by the Applicant makes no sense. On the one hand the parties are having a heated argument and her life partner apparently gives her a business letter. On the other hand, they are apparently engaging in the conversations and banter of a normal couple.
I do not accept that submission. The parties were apart as to the topic of their discussion in August 2011 and clearly were in dispute as to what was said and more particularly the consequences that flowed. The absence of either letters establishes nothing other than the fact that the letters were not produced. Each was cross-examined on the event. Each clung to their recollection of events and did not waive or stray from their version.
However, the respondent’s subsequent conduct is completely inconsistent with his alleged affront at being accused by the applicant of all manner of ills. The parties continued to share a bedroom in the respondent’s home when several other bedrooms where available for him to move to and then in the apartment, their mutual attendance at numerous social functions, invitations by the respondent to accompany him on overseas holidays and business trips, and her continued occupation at the Suburb M home and subsequently the Suburb M apartment are all inconsistent with the ending of the relationship. I regard the respondent’s subsequent actions as referred to above as entirely inconsistent and implausible with someone who was as offended as he says he was and as he represented to others.
In view of my findings about the unreliability of the respondent’s evidence on a whole series of matters as referred to above, I am not satisfied that this heated discussion occurred in the way in which it was presented by the respondent in his affidavit and has been retold by him to others. I am not satisfied that what he said to others was said to the applicant.
During his cross-examination on Exhibit 9 about the KK Town trip in late 2013, he was asked the following questions and gave the following answers:
[COUNSEL FOR THE APPLICANT]: And you know that my client didn’t join you on that trip?
[THE RESPONDENT]: Yes, I do know that.
[COUNSEL FOR THE APPLICANT]: And I’m suggesting to you the reason why she didn’t join you on that trip, sir, is because you had separated only a month before?
[THE RESPONDENT]: Mmm.
[COUNSEL FOR THE APPLICANT]: That’s right, isn’t it?
[THE RESPONDENT]: Yes. We separated, in my mind, much earlier than that.
(Transcript 15 February 2023, p.445 lines 32–37)
In light of that evidence and the other matters referred to earlier, I am not satisfied that the respondent said to the applicant what he said to his witnesses or what he reports in his affidavit. I also find that he did not subsequently ask her on a regular basis to move out. Such a proposition is inconsistent with so many other pieces of evidence as referred to above as to be implausible.
SECTION 4(AA) (2) INDICIA
I set out below my considerations of the statutory indicia.
The duration of the relationship.
The parties are at issue as to the duration of the relationship. A finding as to the duration of the relationship is informed by an assessment of all of the circumstances relating to their relationship in the period between the date asserted by the respondent and that asserted by the applicant in determining when the relationship broke down.
Nature and extent of their common residence
There is no doubt that upon the commencement of the de facto relationship, the parties resided in the respondent’s Suburb M home. It is not in dispute that in late 2012 (at a time after the respondent contends the de facto relationship broke down) he purchased the Suburb M apartment in his sole name, having sold his Suburb M home.
The respondent was entirely in control of the purchase of the Suburb M apartment. He instructed the solicitor who acted on the purchase. It was entirely within his power to prevent the applicant moving into the property. It would be implausible to suggest otherwise.
It is agreed that the applicant eventually moved out of the apartment in or about August 2015.
There is no issue that the parties occupied a common residence in the period between August 2006 and August 2015. Clearly, parties can occupy and share a common residence and not be in a de facto relationship as was the case after December 2013.
The focus of the enquiry is whether they occupied it as couple in a relationship living together on a genuine domestic basis after August 2011 and until December 2013.
As stated earlier, there was a great deal of cross-examination about the location of the applicant’s clothing and whether it was in the main bedroom of the apartment. The applicant contended that the respondent unpacked her clothes and placed them in the wardrobe in the main bedroom. The applicant gave evidence of various photographs said to be of the wardrobe in the main bedroom. The respondent did not admit that they were photographs of the wardrobe in the main bedroom.
The respondent did, however, eventually admit that there was located in the main bedroom at one time a chest of drawers that belonged to the applicant and that it contained the applicant’s shoes. I am satisfied that on balance some of the applicant’s clothes were in the main bedroom as well as her shoes at one point of time.
While there was a lot of cross-examination on the location of the furniture in bedrooms and the applicant’s clothing and shoes in those locations, it remains unexplained why the applicant would move her furniture into the master bedroom if as was the case asserted by the respondent she knew that the relationship was over.
The respondent’s counsel submits that:
59. The Applicant was cross-examined on this and whilst she agreed she had organised for her furniture to be moved into the Unit (TX159:5-10}, disputed that the Respondent had been upset by it {TX159:14} and denied that a few months later the Respondent organised for items of her furniture to be moved back to the garage {TX162:0-15}.Notably in her Reply affidavit at 36, the Applicant denies that the […] chest was in the garage until renovations began but does not actually deny the contention that it had been moved back to the garage in February 2013. Importantly, under cross-examination, the Respondent was not challenged as to his contention that the […] chest was moved back to the garage in February 2013.
There was a lot of cross examination on this topic. It may be that the respondent was not ultimately challenged on his assertion that the chest was moved back to the garage but nor did the applicant resile from her case that it remained in the bedroom. The point was clearly joined by each party’s assertion. There is no evidentiary victory by the mere assertion in the last line of the respondent’s submissions.
I am satisfied for the reasons given earlier and contrary to the case of the respondent that the parties occupied the same bedroom in the Suburb M apartment. The presence of the applicant’s clothes and shoes in the main bedroom (at least at one point in time) and that she and the respondent shared the same bedroom in the Suburb M apartment support a finding as to a de facto relationship continuing after the date asserted by the respondent and consistent with the date asserted by the applicant.
Whether a sexual relationship existed
The respondent’s evidence was that the parties were not intimate and did not have a sexual relationship after August 2011. The applicant contended that the parties remained intimate and continued to have a sexual relationship until December 2013.
A sexual relationship may be present in a de facto relationship or absent from a de facto relationship. It can occur after the end of a de facto relationship. A sexual relationship is just one indicium of a de facto relationship. The parties present diametrically opposed cases on this issue.
Like some other issues, I am not able to resolve the contested assertions nor is it necessary to do so.
The degree of any financial dependence or independence and any arrangements for financial support between them

It was agreed that the parties did not any time during their relationship conduct a joint account nor acquire any joint property. There was a marked and significant degree of separation of their financial lives throughout the relationship.
For a period of time until about early 2013, the applicant operated a supplementary card on the respondent’s LL Credit Card account. The parties are at issue about why it was that she was taken off as a supplementary card holder. For reasons given earlier, I found unconvincing the respondent’s explanation as to why the applicant no longer had a supplementary credit card.
It was not suggested at any time that the applicant asked the respondent for financial assistance or that he provided her directly with financial assistance.
There was no issue during the entirety of occupation of both Suburb M properties that the respondent was responsible for the payment of all expenses related to the properties. I find that the vast majority of the day to day household expenses were paid by the respondent.
I accept that the evidence indicates that the applicant made some modest contribution to her mobile phone bill and met some grocery costs. There is no issue that in the period subsequent to the date the respondent contends that the relationship broke down that he paid for overseas travel for the applicant.
I do not discern any difference between August 2011 and December 2013 as to how the parties arranged their financial affairs to that which existed before August 2011. The respondent has not established there was a difference.
The ownership, use and acquisition of their property
At all times the respondent was the owner of the Suburb M home and subsequently the Suburb M apartment. The parties did not jointly acquire any property together.
I accept the evidence of the applicant in preference to that of the respondent that she did offer to contribute to the purchase of the Suburb M apartment.
There is no suggestion of the acquisition of furniture, motor vehicles or any item of personal property other than some furniture bought by the applicant to furnish the guest house in the Suburb M home and some shelving in the Suburb M apartment.
I accept for the reasons given earlier that the applicant did have use of the main bedroom in the apartment with the respondent until December 2013, whereupon she moved into the second bedroom.
I find that on balance the parties shared the use of the respondent’s Suburb M home and subsequently the Suburb M apartment. It is clear that the applicant invited people to stay and/or visit in the Suburb M home and apartment after August 2011. That is conduct consistent with the use of the respondent’s property by the applicant. The respondent’s emails to the applicant’s sister describing the apartment as “our home” are consistent with the case advanced by the applicant. On balance, these matters favour the finding that the parties’ de facto relationship broke down on 23 December 2013.
The degree of a mutual commitment to a shared life
I am satisfied that the parties did have a commitment to a shared life that extended after August 2011 and until 23 December 2013.
While the respondent contends that there was a change after August 2011 in how they lived their lives, I am not satisfied that the evidence supports a finding of such a change.
After August 2011, the parties still spent Christmas Eve and Christmas together with the respondent’s family, attended birthdays, attended lunches with friends, had friends and family over for lunch and/or dinner, caught up with friends over drinks, attended various functions together, attended wine appreciation courses, and travelled to various places together. These attendances and involvement with others are inconsistent with a proposition that the parties’ relationship has broken down as contended for by the respondent. Likewise, the correspondence between the respondent and the applicant’s sister is demonstrative of a commitment beyond that of mere friendship as sought to be presented by the respondent.
The respondent’s concern about being unable to contact the applicant while she was in V State and her references to him as her partner are again demonstrative examples of a mutual commitment.
This evidence is supportive of the finding that the applicant seeks.
Whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship
The relationship was not registered under any prescribed law of a State or Territory.
The care and support of children
There are no children of the relationship.
The reputation and public aspects of the relationship
There is no doubt that on the case as presented by the applicant, the parties presented as a couple in a de facto relationship up until December 2013. That includes the numerous social and family events referred to earlier as well as the applicant being invited to accompany the respondent on various trips at a time when the respondent would contend they were not in a relationship.
On the Country P trip they were accompanied by friends who were not informed by the respondent that they had separated. On the Country HH and Country O trip, however, they were accompanied by people who were told, at least as far as the respondent was concerned, that they had separated. On each trip they shared a bedroom. There are also other occasions when they attended on various celebrations together, including the respondent’s sister’s wedding in mid-2013, which took place on a ship where they shared a room. Thus, the very public nature of their relationship would tend to suggest that the parties remained in a de facto relationship until 23 December 2013.
The respondent represents through Exhibit 9 that he had not told any of the people he refers to in that letter that the parties had separated. This is inconsistent with what his witnesses said. There is no evidence of the applicant communicating to anyone that the relationship had broken down other than the evidence of Ms C, which is denied by the applicant. Her brother denies being asked by the respondent to encourage the applicant to move out.
The respondent in his counsel’s written submissions says:
115. Of interest though are the emails the Applicant exhibited to her affidavit in support of the suggestion she and the Respondent presented an image of a united relationship:
•The email of 11 October 2012 to [Ms MM] {Exhibit 11} references inviting [Ms MM] and 3 others to come and stay for a weekend the Respondent would specifically not be present. In cross-examination when it was suggested she could have chosen a weekend when the Respondent was to be present. The Applicant’s response was that the Respondent wasn’t keen on them.
•A86 – The thread of emails of 25 & 26 January 2013 to [Ms NN] and others {Exhibit 10} is to do with organizing an event. One of the emails on page 66 says “I expect to be in Sydney throughout February unless my partner [the respondent] has extended other invitations.” As the Applicant acknowledged, the emails were not copied to the Respondent. When challenged on that the Applicant said “No. I tended probably not to”. Even if that answer made sense, the other conundrum was that by her statement to [Ms NN], the Applicant was unaware whether the person with whom she was in a close relationship had extended other invitations.
(Footnotes omitted)
Contrary to the respondent’s submission, I find the email to Ms NN and in particular the applicant referencing the respondent as “my partner [the respondent]” consistent with the case as advanced by the applicant and inconsistent with that contended for by the respondent. Ms MM gives evidence of a conversation with the applicant in late August or September 2013 where they discussed relationship difficulties. She says that at no time did the applicant say they had separated. The applicant’s brother gives evidence of the applicant telling him in March/April 2013 about her relationship with the respondent saying “It is not good and will probably end but I am not sure” (affidavit of Mr D, paragraph 7).
I find all of the applicant’s conduct including referencing the respondent as her partner at or about the same time as she is speaking to Ms C is entirely inconsistent with a breakdown of the relationship in August 2011.
Other than the representations by the respondent to his witnesses, I am satisfied that the respondent’s conduct is inconsistent with the case he presents and more consistent with the case advanced by the applicant.
There is no doubt the parties were having relationship difficulties toward the end of 2012. The respondent’s note to the applicant speaks of relationship and communication issues as does her conversation with her brother. It does not speak of a break down. In relation to the attendance on X Services, the reasons for attendance are contested.
Much is made of the applicant’s mail redirection notice in mid-2013. The respondent would contend that that was evidence that the applicant knew that the relationship was over. The applicant denies this and says it was to do with her professional registration. For all of the above reasons I accept the evidence of the applicant.
On balance, I am satisfied that the matters referred to above under this indicia are supportive of the case advanced by the applicant than that of the respondent.
CONCLUSION
As referred to earlier in these reasons, the High Court in Fairbairn & Radecki observed that:
29.A de facto relationship will have broken down when, having regard to all the circumstances, the parties no longer “have a relationship as a couple living together on a genuine domestic basis”. …
30.In the context of a human relationship, “breakdown” refers to the “end” or “breakup” of what had been an enduring emotional bond. …
Section 4AA makes it apparent that each case will turn on its own facts. Not every fact relied upon by a party will point either consistently or necessarily logically to the conclusion sought by that party. Such proposition is self-evident on the facts in this case. It is for that reason that there is a requirement to have regard to all of the circumstances of their relationship to determine if the relationship had broken down.
On my assessment of all of the evidence, the respondent’s case of a break down in August 2011 is supported only by what he reports to the witnesses in his case and the conversation denied by the applicant with Ms C. There is no doubt that he told these people that he was separated. However, all of his other behaviour is inconsistent with a breakdown and, taken with a rejection of his evidence that the parties did not share a bedroom when they moved to the apartment, where I have otherwise found his evidence unreliable in other instances as referred to in these reasons, his case is otherwise implausible and irreconcilable with his own conduct and with the conduct of the applicant. This is particularly so in respect of her evidence that she would not have gone on a holiday if they were not a couple, explaining why she went to Country P and Country O and Country HH in 2012 and why she did not go to New Zealand in 2013.
In this matter, having regard to all of the circumstances, I am satisfied that the evidence supports a finding that the relationship of the applicant and respondent living together as a couple on a genuine domestic basis broke down on 23 December 2013.
I will make a declaration accordingly.

I certify that the preceding two hundred and thirty-eight (238) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell.
Associate:
Dated: 17 April 2023

File number(s):	SYC 7896 of 2015
Judgment of:	SCHONELL J
Date of judgment:	17 April 2023
Catchwords:	FAMILY LAW – DE FACTO RELATIONSHIP – Where both parties sought declarations pursuant to s 90RD of the Family Law Act 1975 (Cth) – Where the applicant contended that the relationship broke down in December 2013 – Where the respondent contended that the relationship broke down in August 2011 – Where the applicant commenced proceedings in December 2015 – Where after 2011 the parties remained living together despite the respondent contending that he was telling the applicant to move out – Where the evidence is that the parties slept in the same room together, went to events together, travelled together, and socialised with each other’s family and friends – Where the applicant’s evidence is preferred because the respondent’s evidence was found to be unreliable – Declaration made that the relationship broke down not before December 2013.
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 4AA, 90RD, 90SM
Cases cited:	Cubillo v Commonwealth of Australia (No 2) (2000) 103 FCR 1; [2000] FCA 1084 Fairbairn v Radecki (2022) 400 ALR 613; [2022] HCA 18 Nguyen v Tran (2018) MVR 16; [2018] NSWCA 215 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Division:	Division 1 First Instance
Number of paragraphs:	238
Date of last submissions:	13 April 2023
Date of hearing:	23 – 26 August 2022, 15 February 2023, 10, 13 and 16 March 2023 and 11 April 2023
Place:	Sydney
Counsel for the Applicant:	Mr O’Dwyer SC with Mr Gardiner (23 – 26 August 2022); Mr Gardiner (15 February 2023); Mr Blackah (10 and 16 March 2023); Litigant in Person (11 – 13 April 2023)
Solicitor for the Applicant:	Gordon & Barry Lawyers (21 July 2022 – 8 March 2023); Leeder Law (9 March – 10 April 2023)
Counsel for the Respondent:	Mr Longworth; Mr Kenny (16 March 2023)
Solicitor for the Respondent:	Bartier Perry Lawyers

SYC 7896 of 2015
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS QUINN Applicant
AND:	MR LAWSON Respondent

order made by:	SCHONELL J
DATE OF ORDER:	17 APRIL 2023