ROSETTI and PERLA

[2011] FCWA 91

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: ROSETTI and PERLA [2011] FCWA 91

CORAM: JORDAN AJ

HEARD: 28, 29 AND 30 SEPTEMBER 2011

DELIVERED : 30 SEPTEMBER 2011

FILE NO/S: PTW 2606 of 2010

BETWEEN: MR ROSETTI

Applicant

AND

MS PERLA
Respondent

Catchwords:

De facto property - Application for leave to proceed out of time - Did the de facto relationship exist and prevail to December 2002 - Not a de facto relationship at relevant times - Application dismissed - Costs

Legislation:

Family Court Act1997 (WA) - s 205ZB(1), (2), s 205U(2), Part 5A
Interpretation Act 1984 (WA) - s 13A(a), (b), (c), (d), (e), (g), (i)

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr. Grasso

Respondent: Mr. Rynne

Solicitors:

Applicant: Millsteed Grasso

Respondent: Dwyer Durack

Case(s) referred to in judgment(s):

Nil

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL
JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN

CHANGED

1This is an application made by [Mr Rosetti] (“the applicant”) for leave to proceed with a claim for property settlement out of time. That application is brought pursuant to Part 5A of the Family Court Act Western Australia 1997 (“the Act”).

2The substantive claim is based upon an asserted entitlement arising as a consequence of what the applicant says was a de facto relationship with [Ms Perla] (“the respondent”) prevailing between 1991 and July 2007. Proceedings were not commenced until 14 May 2010 which is after the expiration of the two‑year period for institution of proceedings as prescribed by section 205ZB(1) of the Act and leave to proceed is sought pursuant to section 205ZB(2).

3The respondent acknowledges that the parties had a relationship between 1991 and 1997 but does not admit that that relationship was a de facto relationship. In any event, she says, that whatever is the proper characterisation of the relationship in the early 1990’s that relationship fundamentally changed in 1997 to the point where she positively denies that the relationship was a de facto relationship beyond that point. By section 205U(2) of the Act Part 5A of the Act:

“…does not apply to a de facto relationship that ended before the commencement of the part.”

4The commencement date of that part was 1 December 2002.

5If the respondent’s assertions are accepted, the Court does not have jurisdiction to entertain the applicant's substantive application or his leave application. If the applicant is accepted and a finding is made that a de facto relationship existed and persisted up to July 2007, the jurisdiction of the Court may be invoked provided the Court is satisfied that the applicant should be granted leave to proceed with his substantive application out of time. The Court therefore needs to firstly determine if a de facto relationship ever existed between the parties and, if so, when that de facto relationship was terminated.

6Section 13A of the Interpretation Act 1984 seeks to define a de facto relationship as being one where parties live together in a marriage‑like relationship. Subparagraph (2) of that section lists some factors which might be indicators of a de facto relationship and it will be necessary to discuss each of those matters in due course.

7Before examining aspects of the history of the relationship in this matter, it needs to be observed that de facto relationships, like marriages themselves, can take on many different shapes and forms; from the deliriously happy, totally compatible, completely supportive sharing and caring relationship at one end of the scale to the unhappy, incompatible, barely subsisting relationship at the other end. Each such relationship may be capable of being recognised by the community and at the law as a marriage or a marriage‑like relationship.

8At law, the nature of a relationship is to be measured by an evaluation of the existence of a number of criteria associated with serious, committed relationships, which criteria need to be considered individually and collectively to determine if the relationship moves from the category of casual relations which do not carry legal rights and obligations to a more serious marriage‑like relationship which encompasses the types of rights and obligations associated with marriages.

The Relevant History

9The evidence produced in this matter includes important areas of common ground and significant points of difference.

10The common ground includes noting that the applicant is presently 76 years of age and the respondent is 42. The parties met in the 1980’s when the respondent was only a teenager. The applicant was a family friend who visited Australia regularly and stayed with the respondent and her family. A relationship developed to the point that the applicant emigrated from Italy to Australia in 1991. The respondent acknowledged that she was interested in developing a relationship with the applicant at that time. Indeed, the respondent said that her hope at that time was that the relationship might lead to marriage.

11At the time of the applicant's move to Australia the respondent was 22 and the applicant was 56. Despite some reservations of others, particularly from the respondent’s father, an intimate relationship developed and the applicant remained resident in the respondent's parents' home between 1991 and 1994. However, the parties occupied separate rooms, it appears at least in part, out of respect for the wishes of the respondent's father.

12The applicant says that when he arrived in Australia he had approximately $96,000 at his disposal. In 1993 the parties purchased in joint names some vacant land at [Country Town K] for $32,000. The applicant met the full costs of that purchase. A shed and water tank were subsequently constructed on the site and other improvements were effected. There is an issue between the parties as to the costs of those improvements, with the applicant asserting that the outlay was approximately $18,000 whereas the respondent asserts it was closer to $30,000. The applicant says that he met the costs of those improvements. The respondent says that she met them as part of an agreement designed to see the parties share equally in the total costs. She says she received financial assistance from her parents in that regard.

13In June of 1994 a property was purchased in the respondent's name at [Suburb E] for $75,000. The applicant asserts that the home was purchased as a family residence and that he offered to make a contribution financially from his reserves of cash. He says that the respondent persuaded him that she should meet the full costs as she had better access to finance. The respondent’s parents paid an initial sum of $20,000 towards the acquisition and the respondent secured mortgage finance from Westpac Bank for $58,000 in her sole name.

14The respondent says there were no discussions about financial contributions with the applicant. She says that she always regarded the home as hers and has met all of the costs of the acquisition and maintenance and improvements of that home which was purchased by her as her first home.

15It is common ground that the applicant and the respondent took up residence in that property. The respondent concedes that thereafter they were in a romantic and sexual relationship for some time. It is common ground, however, that the parties did not occupy the same bedroom. The applicant says that this was because of the respondent's habit of taking up the whole bed and of snoring badly. The respondent, on the other hand, says that this unusual arrangement was as a consequence of the applicant's refusal to share a bedroom. She said that he insisted on having his own room and own space. The respondent informed the Court that this was a particular matter of disappointment and frustration to her.

16There were other features of this relationship, even during this period, which were unusual.

17The respondent worked continuously in a variety of occupations and had a regular source of income. The applicant rarely worked and was initially dependent upon the remainder of his Italian capital. He subsequently utilised Australian and Italian pensions to supplement his occasional modest earnings.

18Further, although they did enjoy occasional social outings together, many of those enjoyed with others seemed to be primarily with the family of the respondent and that family's friends. The respondent retained a distinct social life with her own friends from work and with others of her age group.

19Despite the unusual features of the relationship, the respondent readily acknowledged that, in the early years at the Suburb E residence between 1994 and 1997, she embraced the relationship and was aspiring and actively agitating to have that relationship develop into a serious committed one, hoping that it would lead to marriage. She said that such matters were the subject of regular discussion. She says that the applicant refused to commit, citing his religious beliefs and the fact that his former wife remained alive and this in some way prevented him from embracing a full relationship.

20For his part, the applicant maintains that the relationship was indeed a full and committed one from early in 1991, and that it remained that way throughout the period as evidenced by their continuing sexual relations, the joint purchase of land, the sharing of a common residence and the sharing of a social life. He said that the unusual features of the relationship were a product of him respecting the fact that he was much older than the respondent and that, as a consequence, he was prepared to allow her to pursue career and friendship options which reflected her age and interests at the time.

21In terms of the history, it was in or about 1997 that real points of difference between the parties emerged in relation to the accounts they offer for the development of the relationship thereafter.

22It is common ground that, towards the end of 1997 the respondent left the Suburb E home and moved to [Sydney] in pursuit of career options. The respondent’s account of this development is that, after years of seeking greater commitment from the applicant to their relationship, she came to the realisation that he was unable or unwilling to meet her requests and that, as a consequence, she chose to move on with her life and her career. As part of that, she sought work opportunities interstate and overseas.

23The respondent says that, from that point on, the parties began to live largely separate, independent lives. She says her move to Sydney had every potential to be long term and that the only event which saw her cut short that assignment after four months and return to Western Australia was the deterioration in her mother’s health and her wish to provide her with support and help.

24For his part, the applicant acknowledges the respondent's move to [New South Wales] and indeed says that he actively encouraged her in that regard so that she might improve her career options. He said that if the move interstate became long term, it was his intention to sell the Suburb E property and followed the respondent East. He says that the main reason the respondent cut short the New South Wales assignment was because she did not like being separated from him.

25The applicant says that upon the respondent’s return, they resumed their full relationship, with the respondent taking up residence in their home.

26The respondent says that, while she returned to Western Australia there were indeed significant changes in the relations between the parties. She says she continued to use the Suburb E property for accommodation from time to time and she acknowledges that there were occasional sexual encounters between the parties over the next two or three years. She says, however, that in most other respects, they led separate lives.

27The respondent asserted that she spent significant periods of time living with and helping her mother. She said she sought and secured employment in industries which included fly‑in and fly‑out work and extended periods away from Perth. She says she led a largely separate social life which included the pursuit of friendships and relations with other men. She said the sexual relationship between the parties ended in 2000.

28The respondent acknowledged an ongoing relationship with the applicant but says that it was one based in friendship and not romance. She said that the applicant remained a good friend and good family friend. She said he was a kind man and that she still had positive feelings towards him. She said they continued to share family friends and family outings and from time to time they would attend functions together. She said that, from this time, she would introduce the applicant as her “friend” or “good friend”.

29The respondent acknowledges that even after 2000 the parties did share some holidays together. The applicant understandably relies heavily upon this fact to support his contention that the parties continued in the type of full romantic relationship which would result in a couple not only living together but wanting to spend their leisure time in pleasurable pastimes. The respondent says that the parties remained friends and that the applicant would ask her if he could accompany her on some of her local holidays and that she had no objection to that course. She said that the parties always slept in separate beds on those occasions apart from, I believe, one instance when, by necessity, they shared a bed, but she said they did so without intimacy.

30It is agreed that the applicant proposed marriage to the respondent in 2007 which is consistent with his contention of an ongoing romantic relationship at that time. However, it is common ground that that proposal was rejected which may be consistent with the respondent's account of the state of affairs.

31The financial arrangements between the parties are capable of interpretation in support of each of the accounts before the Court. There was some clear merging of finances directly and indirectly uncommon in situations between friends, and yet there was at the same time a high level of separation of finances not common in marriage‑like relationships. The most obvious merging occurred firstly in relation to the acquisition and continued ongoing ownership of the joint block of land and, secondly, indirectly, in the applicant's continuing occupation of the Suburb E home for the past 17 years with little or not contribution on his part to the costs of its acquisition, maintenance and upkeep.

32There was also an arrangement put in place which provided the applicant with access to a credit card in the respondent’s name. The applicant used that card, not only to pay expenses on the house, but also for his personal needs from time to time. He also contributed some of his money to the reduction of the credit card debt from time to time.

33On the other hand, in many other respects, the parties maintained separate and independent finances. They did not account to one another or share information about their detailed finances. I accept the respondent remained largely unaware of the applicant's financial situation throughout the relationship and that she in turn did not account to the applicant for her income or expenditure.

34The respondent says the arrangement with the credit card was largely one of convenience, particularly after 1997 when she would be away from the Property E home for extended periods. She said that provision of the card was to enable the applicant to pay for utilities and other outgoings on the home in her absence. She said that, in relation to his personal use, the agreement between them was that he would repay into that account any drawings he had made for personal needs. She says that he was entirely trustworthy in that regard.

35In assessing the nature of the relationship, there are however two aspects of the history which loom large and require close evaluation.

36The first aspect relates to the consequences of discussions between the parties in 2000 relating to the applicant's finances. It is agreed that, at that time, the applicant applied for a single aged pension. It is common ground that the respondent encouraged him to do so. It is common ground that the documents submitted by the applicant in support of his application for the pension included a signed declaration by him that he was not living with any person in a marriage‑like or de facto relationship.

37Of course, the existence of that declaration is entirely consistent with, and corroborative of, the respondent's assertion that the parties were no longer an attached couple and that, apart from a shared residence, they lived largely independently of one another. Such a declaration is, of course, entirely inconsistent with the applicant's present assertions.

38Putting to one side the potentially very serious implications of fraud, such behaviour on the part of the applicant has significant implications in terms of his credit and in terms of the determinations of the proceedings. That conduct calls for a clear explanation. The applicant's explanation is that he only did so at the suggestion and encouragement of the respondent who he says saw it as an opportunity for them to enhance their finances. He says he merely went along with that proposal.

39There are a number of problems with that explanation. Firstly, I was not left with the impression that this was a relationship where I was dealing with a man used to being told what to do by others, certainly to the point of engaging in such seriously dishonest conduct. Secondly, there is nothing in the evidence indicative of financial hardship at the time. To the contrary, the parties always appeared to have managed their collective and individual lives and fairly modest lifestyles without apparent financial difficulty. Thirdly, at the time of the application, the applicant had become eligible for an Italian aged pension which provided him with an income of the order of $300 per week, an income which he had not had access to prior to that time.

40The only conclusion one can draw in relation to this aspect of the history is that either the applicant was being deliberately dishonest when he made the declaration to the Department of Social Welfare or he was being deliberately dishonest before this court in asserting something to the contrary. Generally the whole issue does not serve him well, and specifically, it is a most significant matter to be taken into account in my total deliberations.

41The other compelling piece of evidence is exhibit A to the applicant's affidavit filed on 8 November 2010. As I indicated earlier, it is common ground that the applicant proposed to the respondent and that that proposal was rejected. In her evidence, the respondent says that the applicant was hurt by her refusal and confused when she rejected his overtures. She said she was shocked by the proposal and tried to explain her reasons for rejecting it to the applicant overnight, but that he seemed unable to be appeased. She says that she therefore decided to write a letter, and that letter is now exhibit A to the applicant's affidavit.

42Understandably the applicant places great emphasis upon the fact of, and the contents of, that letter. It is a document that, on its face, adds valuable support to the proposition advanced by the applicant that the parties had an ongoing relationship up until that time, including a romantic relationship.

43It must be observed that the letter does not read as a letter written by a person who had been estranged romantically for the past 10 years. For example, the letter starts “My Honey” and continues with statements such as, “We are both in so much pain.” “I am so very sorry that I'm hurting you.” “I do love you. You are my whole life.” “You have been my life for so many, many years.” “I cannot imagine life without you.” “I have loved you with all my heart and soul and that has not changed for me.” That is but to highlight some of the contents. The letter otherwise of course speaks for itself. It refers in the present tense to being “in bed together”.

44As with the applicant's conduct in his 2000 declaration, that letter and its contents called for an explanation.

45The respondent's explanation to the Court is that she still had feelings for the respondent. He remained a good friend. She was dealing with a man who had just proposed marriage to her. She did not want to hurt him. She had difficulty having him accept her refusal, and she wrote a letter she said to try to help him to move on. She said she wanted to write a kind letter not a hurtful letter, and it was for that reason she said so many nice things. That explanation is feasible to a point. However, it is hard to accept it as an explanation for the use of the present tense and the appearance of referring to what appeared to have been ongoing shared intimacy in particular.

46Obviously the letter and its contents is much more consistent with the applicant's account of the state of the relationship at that time than it is with the respondent's account. It is a matter which I must properly accommodate in my deliberations.

47Like so much in this case, there are other features of the history which can serve to both throw some light on the matter and/or add to the confusion surrounding it. For example, during most of the relationship, there was only one motor vehicle in the household which meant that this couple, or these friends, found themselves sharing the motor vehicle for many years. As part of that, the applicant delivered the respondent to and from work from time to time.

48Exhibit 15 is advanced as a document which undermines, it is suggested, the credibility of the respondent. In that letter the respondent's previous solicitors acknowledge the existence of a de facto relationship, at least up until 1998. Whilst, of course, I take the contents of that letter into account, in fairness, I need to also acknowledge that the effect of the wife's evidence of what would be her instructions to a solicitor they would include an open acknowledgement of intimacy, affection, aspirations and shared residence. Such matters could readily draw a lawyer to include in correspondence an acknowledgment of a relationship, even a de facto relationship, up until 1997. Of course, the existence of that type of relationship to that point remains a finding open to me whatever I find is the nature of the relationship thereafter.

Deliberations

49In determining whether a de facto relationship existed beyond 1997 and in reviewing the history and the totality of the evidence in the context of considering the s 13A indicators, I make the following assessments, using the subparagraphs appearing in that section.

(a)There has been a relationship between the parties which has spanned a period of in excess of 17 years, and which, on all versions before me, took on different complexions from time to time.

My inclination is to view the period between 1991 and 1994 where the parties shared residence in the respondent’s parents’ home but not in shared bedrooms was more akin to a courtship; a relationship between a boyfriend and girlfriend but a relationship which had not at that point sufficiently embraced the elements of a marriage‑like relationship to constitute a de facto relationship.

However, with the joint acquisition of the land, the taking‑up of residence in Suburb E, the embracing of an intimate relationship thereafter and the shared features of their lives between 1994 and 1997, such matters were probably sufficient individually and collectively to support a finding that that relationship could be described as a de facto relationship during that period.

The real issue in this case is what was the nature of the relationship beyond 1997? Did it continue as a de facto relationship as asserted by the applicant or was it thereafter more in the style of a friendly relationship with shared residence? This is the period of the relationship requiring closer analysis to determine whether the application for a property settlement can be sustained.

(b)I find that there were significant changes in the relationship after 1997 and 1998. In particular, the parties had never previously been separated in the period between 1991 and 1997. It is clear that thereafter, there was a sufficient change in the nature of the relationship so as to cause the respondent to start exploring options to work interstate and overseas. Such options would necessarily have included the prospect of living separate and apart from the applicant. Indeed, thereafter the parties did spend extended periods separated from time to time. Of course, they did also continue to share the residence at Suburb E from time to time in a way which might be consistent with the respondent's account, but, I need to observe, also in a way which is consistent with ongoing marriage‑type relations, which might include situations such as overseas service, overseas and interstate contracts and the consequential separations.

(c)The fact that the respondent permitted the applicant ongoing use and occupation of the Suburb E home without payment of rent or significant contribution to the upkeep and maintenance of the home is more consistent with a marriage‑type relationship than it is with a mere friendship.

(d)It is common ground that sexual relations continued after 1997, 1998 although I accept the respondent's testimony that sexual relations diminished in the period between 1998 and 2000. As to the period after 2000, on all of the evidence, and having particular regard to the contents of exhibit A to the trial affidavit of the applicant, I find that some ongoing sexual liaison did continue.

(e)On the question of financial dependence and interdependence, I refer to my earlier observations and conclude that the evidence is equivocal on this point with aspects being indicative of a merging of finances and mutuality, and aspects being indicative of an unusual level of independence and lack of accountability. Of course, the claim by the applicant for a single aged pension in the year 2000 is telling evidence of, amongst other things, a financial separation. On the issue of ownership of property, I refer to my earlier observations about the ongoing joint ownership of the block of land and the ongoing use by the applicant of the respondent's home.

…

(g)It is the indicators referred to in subparagraph (g) of section 30A which loom large in this matter. This requires the Court to have regard to the degree of mutual commitment by the parties to a shared life. Appropriately this was the focus of attention of the respondent's counsel. In assessing this aspect of the matter I must record my acceptance of the proposition that, from the outset, this was a relationship with a number of unusual features. Notwithstanding those unusual features relating in particular to the age differences between the parties and their occupation of separate bedrooms, I have indicated that I was nevertheless inclined to the view that they embraced a relationship which could readily be identified as a de facto relationship between 1994 and 1997.

However, in my view so many aspects of the relationship after 1997, are not only unusual but they are inconsistent with the notion of a committed shared life.

Most importantly and most fundamentally, these parties did not share a bedroom. I accept the respondent's evidence that this was simply because the applicant refused to do so. I do not accept his explanation that it was to do with the respondent's snoring; a proposition I note was never put to her. Whilst this alone of course is not conclusive evidence of the existence of a relationship, it is a strong indicator of the willingness of parties to commit to a relationship and commit to a shared life. Indeed, I accept the respondent's testimony that she was very anxious to have the parties share a bedroom, and that, despite her continued endeavour to have the applicant commit to the relationship at least to that level, throughout the time they spent together he wanted, as she said, not only his own room but his own space.

I find further that, particularly from 1997, 1998 the parties enjoyed only a very limited social life together outside family type functions. I accept they did have occasional meals, coffees, shared movies and even an occasional shared holiday, but in that regard I find that those events were nothing more or less than might be expected to be associated with an ongoing good friendship. Importantly I find that the applicant did not attend any of the wife's work functions other than those which had associated benefits such as attending a theatre event when the respondent was working in that area. He was not invited to and did not attend on any regular basis, the respondent's work functions.

I find that the respondent retained separate work and social friends.

I find that, whilst the age difference would potentially provide some explanation for these features, the history in this case would suggest indeed that age was not an issue which would have prevented including the applicant on such occasions if they had in fact been in a shared committed relationship. History had shown that, even as a very young woman, the respondent had resisted her parents and she rejected those friends who had an issue with her because of the existence of age differential between the parties.

I find that, after 1997, the respondent pursued a largely separate social life and that she was free and felt free to pursue relations with other men.

The respondent’s willingness to pursue work away from home, the fact that she did not account to the applicant for her movements or her earnings, the fact that they continued to largely separate their finances, the fact that the applicant applied for a single pension, are all matters and factors inconsistent with these parties at that time sharing a committed and mutual life.

…

(i)Under subparagraph (i), on the related issue of the reputation and public aspects of their relationship, I accept that, on the limited occasions when the parties were out together the applicant would be introduced as “a friend”. I conclude that this was not as a consequence of any embarrassment on the part of the respondent but, rather, was as a reflection of the nature of their relationship.

Conclusions

50It is of significance in my view that, notwithstanding the legitimate points raised by counsel for the applicant as to allegiances, the applicant was not able to produce a single witness, either voluntarily or by subpoena, to provide one piece of evidence which supported the existence of an intimate or committed mutual relationship after 1998.

51I find that there was indeed a fundamental change in the relations between the parties after the respondent's requests for commitment were rejected by the applicant. I conclude that her decision to move to Sydney thereafter was indeed indicative of the end of the type of relationship they enjoyed prior to that time.

52What was perhaps an unusual relationship prior to 1997 and 1998 became much more limited thereafter. I accept that some intimacy between the parties continued and probably continued beyond 2000 but that they never resumed relations fully as a couple even on their unusual earlier terms. I find that thereafter they remained friends; they shared a house which may have led to occasional acts of intimacy but that they largely lived independent working and social lives.

53I find that the husband's declarations to the Department of Social Security in 2000 to the effect that he was no longer living in a de facto relationship was an accurate assessment of the situation at that time. The parties had each moved on. They shared a friendship and an association, but they no longer shared a committed life. They were no longer in a marriage‑like relationship.

54I find that if the parties had a de facto relationship between 1994 and 1997, that that was the extent of it, and that thereafter the fundamentals changed and, whilst some of the ingredients of a relationship remained, too many were missing and that, therefore, a de facto relationship was not in existence beyond that time.

55As a consequence, I must conclude that there was no de facto relationship in existence as at 1 December 2002 and that there was not therefore available to the applicant the type of relief necessary to support a substantive application and an application for leave in relation to that matter. I find that the Court does not have jurisdiction to entertain the applications before it and that they must therefore be dismissed.

Orders

1.The Form 1 application filed on 14 May 2010 and the Form 1A response filed on 5 August 2010 be and are hereby dismissed.

Costs

56The respondent makes application for an order for costs.

57Under the provisions of the Act, I am required to have regard to a number of factors, including the financial circumstances of each of the parties, the conduct of the parties in the proceedings, whether either of the parties is in receipt of legal aid and whether either of the parties has been wholly unsuccessful in the proceedings before the Court.

58The applicant is 75 years of age, is unable to obtain employment and is dependent upon a combination of Australian and Italian pensions for his existence. He resides in the respondent's property and he did so for some time with her blessing. He has done so more recently against her wishes. The parties own a block of land which has a value of $150,000.

59The respondent is no longer in employment and has recently given birth to a young child. She is now in a relationship. She helps support her partner's two children. Nothing is known of the financial circumstances of the other party, but there is nothing before me which indicates that it is a relationship blessed with wealth.

60In terms of the conduct in the proceedings and in relation to the success or otherwise of one of the parties, this is a case where it could not be said that the applicant's application was so clearly without merit as to suggest that it amounted to something akin to an abuse of process. The question of the existence of a de facto relationship is a difficult one for courts, as indeed has been illustrated by this case. For the parties, it is perhaps even more difficult because, in addition to the process of analysis, they deal with perhaps differing perceptions. It is a difficult matter for those advising their clients.

61On its face, the applicant had an arguable case and he was able to produce evidence which was quite cogent and even compelling in some respects, and I have referred to that in my judgment. There are other aspects of the history which suggest that the applicant's perceptions of what he did and did not have in his relationship with the respondent may have been on a different plane to the respondent. The task for the Court is to make some objective assessment of those points of difference and I have done so.

62I have concluded that the applicant was correct in any declaration he made to the department about the nature of his relationship. However, it remains a fact that he has made inconsistent declarations to two different government agencies. He needed to assert as part of this case that what he declared to the Department was false, and I take account of that.

63On a lower scale, but nevertheless of significance, is the fact that I have also concluded that the respondent's explanation for the contents of exhibit A is a less than a reliable account of true state of affairs.

64At the end of the day, litigation carries with it risks. The starting point in all considerations of costs is that each party should bear their own costs. The Court does have the discretion to make an order. Where one party is entirely unsuccessful on jurisdictional grounds, it is difficult to resist the proposition that, whatever be the hardship for the applicant, it would be inappropriate and unfair to ask the respondent to bear the entirety of the costs of such a failed exercise.

65In doing the best I can in a situation where there are absolutely no winners, but having particular regard to the poor future being confronted by the applicant in terms of his finances, I have determined that he should make a contribution to the respondent's costs to lessen the burden the respondent is facing as a result of this failed litigation.

66What I have determined in all of the circumstances is that the applicant should meet 50 per cent of the respondent's costs of and incidental to this application.

67That order is going to leave the respondent facing hardship. On the amounts I have been referred to, it may leave the applicant almost facing complete financial ruin.

68This is a terrible outcome for each of the parties.

Orders

2.The Applicant, MR ROSETTI, pay the costs of the Respondent, MS PERLA, of and incidental to these proceedings, with such costs to be agreed between the parties, and failing agreement, as taxed.

I certify that the preceding [68] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate