Scrivan & Neil - [2023] FedCFamC2F 949

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Scrivan & Neil [2023] FedCFamC2F 949

File number(s): PAC 3861 of 2022

Judgment of: JUDGE HARLAND

Date of judgment: 1 August 2023

Catchwords: FAMILY LAW – de facto - dispute as to length of de facto relationship - applicant contends relationship ended in 2021 - respondent contends relationship ended before 2009 and the court does not have jurisdiction

Legislation:
Corporations Act 2001 (Cth) s. 601AB

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

Family Law Amendment (De Facto Financial Matters and Other Measures) Act2008 (Cth)

Cases cited:
Crick and Bennett [2018] FamCAFC 68

Cuan v Kostelac [2017] FamCAFC 188

Delamarre and Asprey [2014] FamCAFC 218

Fairburn and Radecki [2022] HCA 18

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

Sinclair and Whittaker [2013] FamCAFC 129

Division: Division 2 Family Law

Number of paragraphs: 200

Date of last submission/s: 11 May 2023

Date of hearing: 9, 10, and 11 May 2023

Place: Parramatta

Solicitor for the Applicant Mr Sim of Crowther Sim Lawyers

Counsel for the Respondent Mr Schonell

Solicitor for the Respondent Boyce & Boyce
ORDERS

PAC 3861 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR SCRIVAN

Applicant

AND:
MS NEIL

Respondent

ORDER MADE BY:

JUDGE HARLAND

DATE OF ORDER:

1 AUGUST 2023

THE COURT ORDERS THAT:
1.Pursuant to s90RD of the Family law Act 1975 (Cth), the court declares that the de facto relationship ended on 31 December 2003.
2.The application filed on filed 10 November 2022 be dismissed.
3.In the event the respondent seeks costs, the respondent file and serve written submissions and any supporting documents as to costs within 28 days.
4.The applicant file and serve written submissions and any and supporting documents as to costs 28 days thereafter.

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

The sole issue I must determine in this case is when the parties’ de facto relationship ended. The applicant says that their relationship ended in October 2021. On his case he does not need leave to commence property proceedings. If he is correct, the matter should proceed on the usual property pathway. The respondent’s case is that the relationship ended at the end of 2003. On her case, the Court does not have jurisdiction because the relationship ended prior to 1 March 2009.[1] If I find that the relationship ended at some point after 1 March 2009, but more than two years before the applicant commenced these proceedings, there will need to be a further listing to determine whether or not the applicant should be granted leave to proceed out of time. Given the breadth of the disputed dates at the end of the relationship, the parties sensibly agree that such application to proceed out of time needs to be addressed separately and that the parties would need to file further material. If I accede with the respondent’s case, then these proceedings end.
[1] See Family LawAmendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth), Part 1.
THE APPLICANT’S CASE
The applicant's case is that the parties lived as a couple in a genuine domestic relationship until October 2021. The applicant was keen to present himself as a simple man who was at a loss to understand how the respondent could deny them being in a de facto relationship until October 2021. He says the parties separated when the police issued a provisional Apprehended Domestic Violence Order (‘ADVO’) against him protecting the respondent and the children on 17 October 2021.
The applicant relied on the following documents:
(1)his second amended initiating application filed 10 November 2022;
(2)his trial affidavit filed 1 February 2023,
(3)affidavit of his brother Mr B filed 17 March 2023;
(4)affidavit of his brother Mr C filed 14 April 2023;
(5)affidavit of his friend Ms D filed on 18 April 2023; and
(6)his tendered material.
The applicant cross-examined the following witnesses:
(1)the respondent;
(2)Mr E; and
(3)Ms F.
The applicant did not rely on the Affidavit of Mr G filed 18 April 2023. The respondent required him for cross-examination but he was not available.
THE RESPONDENT’S CASE
The respondent presents a very different case in that the parties separated in 2003 and that they did not live together on a genuine domestic basis after 2003. She says she and the children were subjected to coercive controlling violence and that after they separated the applicant would continue to attend her home at times on the pretext of seeing the children and would refuse to leave. They also continued to have joint business interests.
The respondent relied on the following documents:
(1)her response to initiating application filed 24 October 2022;
(2)her trial affidavit filed 17 April 2023;
(3)affidavit of the parties daughter Ms H filed 20 March 2023;
(4)affidavit of Ms H’s former partner Ms J filed 17 April 2023;
(5)affidavit of the respondent’s accountant Mr E filed 13 February 2023;
(6)affidavit of her friend Ms K filed 6 February 2023;
(7)affidavit of her sister Ms L filed 3 February 2023;
(8)affidavit of her sister Ms F filed 8 May 2023; and
(9)her tender material.
The respondent required the following witnesses for cross examination:
(1)the applicant;
(2)Mr B;
(3)Mr C; and
(4)Ms D.
During the trial the respondent no longer required the following witnesses for cross‑examination:
(1)Ms H;
(2)Ms J;
(3)Ms L; and
(4)Ms K.
The effect of not requiring these available witnesses for cross-examination is that their evidence is unchallenged. In some cases supporting witnesses are not called because their evidence is not probative. This is not the case here as will be clear from my discussions of their evidence. With respect to Ms H who the applicant decided not to cross examine until after she had been sworn in to give evidence, I stood the matter down briefly to allow his solicitor advocate to confirm his instructions, noting that deciding not to cross-examine her would mean her evidence would be received without challenge. Ms L was also sworn in but was not required for cross-examination.
LEGAL PRINCIPLES WITH RESPECT TO THE INDICIA OF A DE FACTO RELATIONSHIP
Section 90RD of the Family Law Act 1975 (Cth) enables the Court to declare that a de facto relationship existed or never existed. It also enables the Court to determine the periods of the relationship and when the relationship ended as well as where each of the parties were ordinarily resident during the de facto relationship. The applicant bears the burden of proof on the balance of probabilities that the parties were in a de facto relationship.
In order for this Court to have jurisdiction, the de facto relationship must have existed until at least 1 March 2009 when the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) commenced.
Section 4AA of the Family Law Act 1975 (Cth) defines a de facto relationship and sets out the factors that the Court must take into account when considering whether or not in the circumstances of their relationship the parties have lived together as a couple on a genuine domestic basis. There are two preliminary matters. The first is that the parties must not be legally married to each other, and the second is that the parties must not be related by family. Neither of those apply here. Section 4AA reads as follows:
Meaning of de facto relationship
(1)      A person is in a de facto relationship with another person if:
(a)       the persons are not legally married to each other; and
(b)       the persons are not related by family (see subsection (6)); and
(c)having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has effect subject to subsection (5).
Working out if persons have a relationship as a couple
(2)      Those circumstances may include any or all of the following:
(a)       the duration of the relationship;
(b)       the nature and extent of their common residence;
(c)       whether a sexual relationship exists;
(d)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e)       the ownership, use and acquisition of their property;
(f)       the degree of mutual commitment to a shared life;
(g)whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h)       the care and support of children;
(i)        the reputation and public aspects of the relationship.
(3)No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4)A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
Section 4AA(2) includes a number of criteria which the Court may consider in determining whether or not a de facto relationship exists. It is not necessary to make a particular finding about all or any of the matters listed. The court is entitled to attach such weight as any of the matters as may be appropriate in the circumstances of the case. This recognises that parties may have many different types of arrangements and still be in a de facto relationship.
In Fairbairn v Radeck [2022] HCA 18 the High Court observed at [28]:
Consistently with the reality is 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 attach such weight to any matter, as may seem appropriate.
It is the nature of these types of disputes for the credibility of witnesses to be of great significance as often there are limited documents and significant factual matters in dispute. That is certainly the case here.
It is convenient to discuss the disputed facts under the headings with respect to the indicia of the existence or not of a de facto relationship. In doing so I stress this is not to apply these factors as a checklist or to assess against one another. Not all of these factors need to be present in order to make a finding about a de facto relationship. Where I make findings of fact it is on the balance of probabilities. I am mindful that I must assess all of the circumstances of the relationship holistically. It is also useful to refer to the statement from Lynam v Director General of Social Security (1983) 52 ALR 128 at [131]:
Each element of a relationship draws its colour and its significance from the other elements, some of which may point at one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.
This passage has been quoted with approval by the Full Court of the Family Court in Sinclair and Whittaker [2013] FamCAFC 129 and Crick and Bennett [2018] FamCAFC 68. I also have regard to the comments of the Full Court of the Family Court in Delamarre and Asprey [2014] FamCAFC 218 at paragraph 18:
It must also be pointed out that there is no requirement in the Act that a court in applying s 4AA is required to carry out a specific evaluation and/or weighing up of the factors in favour of and against a finding of a de facto relationship. Indeed, s 4AA(3) may well suggest to the contrary.
For reasons I shall explain, I find that the parties’ de facto relationship ended before 1 March 2009.
AGREED FACTS
The applicant was born in 1956 and is 66 and the respondent was born in 1958 and is 65. The parties have two children, Ms H born in 1996, aged 27 years and Ms M born in 2003, aged 20 years.
The parties met in 1995 and commenced dating.
Prior to the commencement of the relationship, the applicant owned property at N Street, Suburb O (“N Street, Suburb O, NSW property”) and 1 and 2 P Street, Suburb Q (“Suburb Q property”), NSW.
The respondent purchased a property in Suburb R in 1995 subject to mortgage.
In 2001 an apartment block at 1 S Street, Suburb T (“1 S Street property”) was purchased in the respondent’s name and Mr U.
In 2009 a second block at 2 S Street, Suburb T was purchased (‘the second Suburb T property’) jointly referred to as the ‘Suburb T properties’. Presumably again in the respondent and Mr U’s name.
Mr U’s share of the Suburb T properties was purchased in 2015 in the respondent's name.
In October 2021 an incident occurred and the respondent made a complaint to the police. Following interviews, a provisional ADVO was issued against the applicant for the protection of the respondent and their children.
DISPUTED FACTS
There are many factual disputes. The most significant is whether or not the de facto relationship ended in October 2021 as the applicant alleges, or in 2003 or 2005 as the respondent alleges or some date in-between.
There is also a dispute as to whether or not the parties started living together in 1995 or 1997. This does not need to be determined as it is not relevant to the issue I have to determine. The difference between the parties as to when their de facto relationship began is not nearly as significant as the dispute with respect to the end of their relationship.
FAMILY VIOLENCE
Family violence is a significant factor in this case as it provides context to the respondent’s case. The respondent says that the applicant would be verbally, emotionally, physically, and financially abusive towards herself and the children. Ms H also gives evidence of significant family violence which supports the respondent’s case. The applicant does not address family violence in his affidavit.
In her affidavit, the respondent describes an incident of family violence that occurred in or around 2003 at V Street, Suburb W (‘the Suburb W property’), when Ms H stood up from the dining table and left her plate, knife and fork at the table. She says the applicant pushed Ms H’s plate and cutlery off the table, grabbed the chair she had been sitting on and threw it across the room screaming at her to “pick up your fucking plates take it out. Don’t leave this table without doing it.” The applicant does not address this incident in his trial affidavit and during cross‑examination denied this incident occurred. Counsel for the respondent described this incident to the applicant who asked ‘how old was my daughter at that time?’ and said that they would not have had knives around them at that age and they would have had soup as that was their favourite meal. Counsel asked him to pay attention to the question he had been asked to which he replied “I am reminiscing” and said he would not swear around the children. This was typical of his evidence, where he would deflect and at several points he had to be directed to pay attention and answer the question that had been put to him but then denied the incident.
The respondent also describes the applicant being controlling with respect to food and what the children could eat and was particularly controlling when Ms H was allowed to eat. In particular, she describes an incident in 2001 where Ms H told her in the evening after school that she was hungry as she did not have lunch because the applicant would not let her have anything until he made dinner. She confronted the applicant about what Ms H had told her to which he replied "I don't care. She has to wait until I am ready for her to eat" which that evening was not until 8.00pm. She describes another incident where she was making Ms H a sandwich as she was hungry to which the applicant was furious and told her she would not give her any "...fucking food".
During cross-examination the applicant denied that he would only let Ms H eat on time restrictions. In response to the incident in 2001 he replied that it did not happen and they always had snacks for the children and if she forgot her lunch he would go and bring it to her. He also denied the sandwich incident and said they always made ham and cheese sandwiches in triangles for the kids. He said Ms H developed a mental illness due to the people around her, who she was listening to.
The respondent describes an incident in 2004 when the applicant grabbed Ms H after Ms H said or did something he did not like. He then dragged Ms H into the shower in her school uniform and hosed her down with cold water. When cross examined about this incident the applicant said they used to hose each other all the time and did not play abusive games and that Ms H would turn the hot water on and off and they would laugh about it and she would hose him with his clothes on too. His answer lacks credibility particularly given Ms H’s age at the time. This proposition was not put to the respondent in cross-examination.
The respondent describes another occasion where she says the applicant punched a hole in the wall in the Suburb W property in or around 2004 when he was arguing with a client on the phone. He threw the phone across the room and pushed all the papers off the desk. He denied this incident occurred.
Ms F is the respondent’s sister and describes a close relationship with her sister. She first met the applicant when her sister was pregnant with Ms H. When she visited them at the Suburb W property, she says the applicant would frequently put the respondent down. In 2003 after Ms M was born, she noticed the respondent had become withdrawn and gained weight. She recalls the respondent telling her that she was unhappy and was afraid of the applicant and was afraid of his impact on the children. She says when the respondent moved out of the Suburb W property to Suburb X she told her that she was leaving the applicant and moving for her safety.
The respondent says the applicant made many threats to kill her which the applicant denies. She gives a few specific examples including when the parties had an argument at the Suburb W property about a phone bill not being paid which he said "you are fucking useless, you cannot do anything. I am going to kill you". There was a further incident in 2003 when she was getting ready to go out with her friends which she says the applicant did not like and threatened to kill her and the girls if she went out. The applicant also denied threatening to kill the respondent in front of children. In her affidavit, Ms H refers to a further incident with the applicant, herself and Ms M when they were driving over a bridge. She recalls him threatening to the respondent on the phone that he was going to drive them off the bridge if she left him. The respondent also describes this incident in her affidavit and describes when she pleaded with the applicant to not put the girls in danger he replied saying “we are not separating. If you tell anyone I will take everything from you”. Ms H was nine at the time. The applicant was cross-examined about this incident. It was put to him that the respondent on the phone pleaded with him not to put the girls in danger to which he replied he did not believe that they had those conversations. Ms H's evidence about this was not challenged. I am satisfied that the applicant did make threats.

Ms H recalls another occasion when she and her sister were with the applicant at Suburb Y and recalls the applicant threatening to drive them off the cliff. She recalls another occasion when the parties were attending a function and the applicant said to the respondent, “you better look happy tonight. If you do not, you will not like what happens next”.
In her affidavit, Ms H refers to the applicant regularly becoming angry. She describes an incident when she was seven, when the applicant wanted her to do the laundry and became angry at her because she was not folding the laundry. She says the applicant grabbed her arm, lifted her off the ground and carried her by the arm and tossed her into her bedroom and locked her in there for the rest of the day. He would not give her food or water. She was alone with him in the home at the time and said that when she told her mother what he did, he again picked her up by the arm and threw her out the door so hard that a terracotta floor tile broke and cut her foot. She says he locked her outside and she could hear her parents arguing and could hear him saying to the respondent that she, “was not allowed back, don’t you dare let her in”.
Ms H recalled another occasion when she was seven and the applicant told her she needed a haircut. The applicant then pinned her to the sofa and cut chunks of her hair out with kitchen scissors, whilst laughing and then made her go to school. Significantly the respondent was not cross-examined about her involvement in these alleged incidents Ms H describes.
Ms H describes the respondent as being different when the applicant was present and was much quieter, barely talking and walking quietly around the apartment. Her descriptions of the respondent are consistent with someone trying to manage someone who is unpredictable and violent. She says she hated the applicant’s visits as he would impose rules and she was terrified as to how he would react if they did not follow the rules. When the applicant stayed over, she says her and Ms M were not allowed out of their bedroom after they went to bed to go to the kitchen or bathroom because he was sleeping on the sofa in the living room and did not want to be disturbed. She recalls one occasion when she got up to get a glass of water and the applicant walked over and grabbed her and dragged her to her bedroom and threw her on the bed, saying “go to bed and leave me in peace.” She recalled another occasion when she left her laptop on in the living room. She says it was an old heavy one and the applicant threw open the door, came over to her bed and pushed the laptop into her chest and roared at her, “Your fucking computer woke me up. Do not leave your computer on at night.”
The applicant denied being violent towards the respondent and the children and further denied being verbally explosive when upset and also denied throwing furniture. He denied ever being verbally, physically or emotionally abusive, and denied engaging in coercive and controlling violent conduct.
The respondent’s Counsel played a recording which was of the applicant leaving a voicemail on the respondent’s phone from 2008 where they put to him he was abusive. He said that was him going crazy and that he was frustrated and apologised. When pressed, he admitted it was abusive, but denied that this was indicative of how he typically communicated with her and denied regularly losing his temper.
The 2011/2012 incident
In her trial affidavit at paragraph 71, the respondent says in 2011 that she and the children had moved to a property in Suburb Z (“Suburb Z property”). The applicant came over and presented her with a document that he asked her to sign which she refused. An argument broke out between them whereby the applicant put his hands around her throat and tried to strangle her resulting in the respondent losing consciousness and falling to the floor. The respondent was cross-examined about this incident and particularly that there was no police record of it. When pressed, the respondent said she did make a report to police about the applicant strangling her at the Suburb Z property. She said the report does not refer to it. She does not mention going to the police in her affidavit.
The respondent says Ms H witnessed the attack. In her affidavit, Ms H says that after the respondent and Ms M moved to the Suburb Z property and they had been living there for some time, she recalls the respondent was in Ms M’s bedroom ironing and the applicant came in to the room and demanded money from the respondent. When she refused and kept ironing, he grabbed her, pulling her away from the ironing board by her neck, putting his hands around her throat and strangling her. The respondent slumped to the ground and the applicant let go and left the house. Ms H says the respondent got up off the floor and continued to get ready for work, not saying anything about the incident and that they both went about their day as if nothing had happened. The evidence the respondent and Ms H give in their affidavits is consistent with the applicant not living there.
The applicant was cross-examined about the incident and denied that the incident occurred and started laughing. When asked by the respondent’s Counsel why he was laughing he said it was because he mentioned Ms H who does not like him for some reason. When Counsel proposed to the applicant that Ms H witnessed the incident he denied this and again denied choking the respondent. He does not address this incident in his trial affidavit.
The respondent was cross-examined about the police report she made on 19 January 2012 where the police record stated that there was an incident between the parties and that the parties had been in a relationship for 17 years and were separated at that time. The police record was tendered and marked as Exhibit 4. The respondent said they were separated before that time and that she would not have said that and said she did not recall saying they were in a de facto relationship for 17 years. She agreed that in 2012, if the relationship had started 17 years ago, it would have been 1995. The note also referred to previous history of family violence, stalking and intimidation and she said she could not recall having previously reported the abuse and violence to police. It was put to her that the reference to the incident taking place as she was getting ready for work in the bedroom of the house they shared together is suggestive of them living together. She said that information was incorrect.
When the respondent made a report to police in 2021 and the police took out the ADVO, she referred to the applicant being aggressive and unstable and also made reference to having previously made a report to police in 2012 of him putting his hands around her neck. She referred to making another statement as to the incident in 2011 at the Suburb Z property when she told the police that the applicant put his hands around her neck and squeezed. The applicant’s solicitor advocate then took her to the documents produced by the New South Wales police in answer to a subpoena during cross-examination and in particular a note dated 10 February 2012.
The respondent was taken to a later part of that note which recorded that she came home that evening and that the applicant had moved his personal belongings out of the home. It was suggested to her that this was a pretty significant event. She said it was not the only event. When it was put to her that this was the only incident in the police records up until that point that reported family violence, she said she remembered going to the police and she could not recall telling the police she wanted to make the report so there was a record for her divorce proceedings. The respondent agreed that she told police she did not want to proceed with an ADVO at that stage. This evidence is consistent with the police record. It is important to observe that it is common for victims of family violence of the type she describes not to report incidents to police. Further, when living with coercive controlling violence, it is problematic to refer to incidents of violence. It is likely that when the respondent refers to an incident in 2011 it is this incident that was reported to police. I accept that there are inconsistencies in the police report and the respondent’s evidence. However, the report is a summary of an officer’s notes. It does not contain a statement adopted by the respondent. It is also not possible to know whether she mentioned strangulation or did not get that far before deciding she did not want to make a statement as she did not wand the applicant contacted. The police records show that she did not want to take it further at that point. The respondent’s sister, Ms F’s evidence is that she persuaded her to go and make a report.
In her affidavit at paragraph 22 the respondent's sister Ms F refers to the respondent calling her in or around 2012 telling her "I told him to stop and he lost it. He pinned me up against the wall and strangled me. I became faint and fell to the floor". She then goes on to say she convinced the respondent to go to Suburb X Police station to make a report and that she was with her the whole time. She says that the police officer told the respondent that they would interview the applicant and it was at this point she decided she would not go ahead with the complaint as she was too afraid of the applicant's reaction. During her cross examination, the applicant's solicitor advocate questioned her on the incident whereby she again reiterated that she attended with the respondent and there was a report made but it was not finalised and the respondent did not wish to pursue the complaint.
After the 2011/2012 incident
Ms H refers to becoming very ill after this incident, spending periods of time in hospital and then moving to live with her grandparents and finishing her last two years of high school at AA School. She says the applicant did not visit her during the period she was living with the grandparents. Ms H states she was contacted by police in October 2021 and they said they were investigating allegations against the applicant and she told the police about the incident where he threatened to kill the mother and put his hands around her neck. I prefer the respondent's and Ms H’s evidence with respect to the incident in 2011/2012.
Ms H recalls another occasion in or around 2020, when she attended her mother’s Suburb T apartment to walk a dog at her mother’s request and saw the applicant, who asked her what she was doing. He then said he would go with her and that she was afraid of saying no. During the walk, he called the respondent asking for money and then started yelling at her to give him the money then hung up. He then said to Ms H “if I do not get what I want, I am going to kill your mother.” She says he had said similar things to her before and that in that moment she had gathered the courage to challenge him and said to him he would not. When he said he would, she said, “You are not serious are you?” She says he replied saying “yes, I am. Why not? In jail they give you three meals a day.” She was scared but also angry and started yelling at him. She cannot recall what she said. The applicant then grabbed her around the neck holding her there and told her to shut up. The dog started barking and he let go. She was terrified and rushed back to the respondent’s apartment. She told the respondent about the incident and says the respondent started talking as if they were discussing the weather and so she did not say anything further.
Financial abuse
In her trial affidavit the respondent describes the applicant as often criticising her handling of money and telling her that he was much better at managing money. She says, in particular, he would frequently make disparaging comments to her about money. She says the applicant said the following statements to her:
“You don’t know how to handle money”.
“Women should not manage money”.
“You don’t know what you are doing, you will lose everything”.
“Leave things (referring to financial matters) to me, it will all be okay”.
In her trial affidavit the respondent complained that the applicant would constantly insert himself into her financial affairs and that she was only able to extract herself after she took the ADVO against him. Some of the examples she gives of his economic control and abuse relates to the management of the Suburb T properties. In 2012 the applicant removed the property manager and asked the tenants to make bond and rent payments to him directly in cash. She says that she did not want him to be involved but she was terrified to say no.
With respect to the Suburb T properties, the applicant denied arguing with the agents and says that he would rent out the properties faster than the agent could and the agent did not like the fact that they were not given the management of the second Suburb T property they purchased. He denied collecting the bond and rent from tenants in cash. When asked if he had records as the property manager, he said he did and that they were all downloads that the respondent and the accountant would have. When these documents were called for he said he had soft copies, but then said he copied them to the accountant. He denied the respondent asking him on several occasions where the money for the rent was. The email exchanges that the respondent had annexed to her affidavit are consistent with her version.
The applicant denied there being a pattern where he would request money from the respondent because he did not have it and on occasions where she refused he would get angry. He also denied telling her that she was bad with money and that she would lose the money if she did not leave it to him to manage.
The respondent's evidence was consistent. The respondent's accountant, Mr E refers to the applicant attending meetings as he was supposedly assisting the respondent with property management of the Suburb T properties. He states that the respondent’s finances in relation to the Suburb T properties were in disarray as the applicant was collecting rent in cash and putting the information in a spreadsheet which he had no evidence of receipts or records of payment to verify its accuracy. This made it difficult for Mr E to complete the respondent’s tax returns.
1995 TO 2003/5
The applicant says the parties started living together shortly after they met in 1995 living in a unit at EE Street, Suburb X. The applicant says that when the parties met, his source of income was as a professional in a company which he started. He says that during the relationship he used his income to pay for family expenses and property renovations and that the respondent’s income was also used for the benefit of the relationship. He also says they maintained separate bank accounts throughout the relationship.
In 1996 the Suburb W property was purchased. The parties both dispute how the purchase of the Suburb W property was made which is discussed in greater detail later in these reasons.
The respondent says in her trial affidavit that the parties were in a de facto relationship from 1997 until 2005. The respondent corrected herself whilst in the witness box to 2003 based on the Centrelink documents she received after she swore her trial affidavit. Given the passage of time, some confusion as to dates being in 2003 or 2005 and 2011 or 2012 are not critical as the respondent’s narrative and chain of events are consistent.
The respondent was cross-examined about the Centrelink document which was produced after she filed her trial affidavits. It is a document signed on 14 April 2004 seeking a single parenting payment where she indicates separation being on 31 December 2003. This document was tendered and marked as Exhibit 1. She claimed that she filled the box that said there was an anticipation of reconciliation by mistake. She wrote on the form that she did not know where the applicant was living. She agreed that he was staying at Suburb W from time to time and had some belongings there, but that he would come and go. The next question on the form asked for names and contact information of two people who could confirm their separation where she wrote that she had not discussed the separation with anyone. The form is a contemporaneous record. Throughout that form she records having separated from the applicant. The fact that she wrote on the form that she had not told anyone is consistent with her accounts of having had enough of the violence and wanting to get away with the children. She may well have said to the applicant that she could not live at the property amongst the renovations any longer. It does not make sense that the applicant finished the renovations a few weeks later as he claims.
The respondent says the applicant was unemployed when they met and did not share their finances. She says since they met, the applicant has studied many things at TAFE but has never had steady employment. The applicant’s significant period of employment was between 2000 and 2004 when he was doing work for a business she says that she established.
In 2002 the first Suburb T property was purchased. Again, the property was purchased presumably in the respondent's and Mr U’s name.
The applicant says in early 2005 the respondent and the children moved to the Suburb X apartment as the respondent was unhappy with the living conditions and the ongoing renovations at the Suburb W property, Ms H was also attending primary school in Suburb X and Ms M attended day care in Suburb BB.
Ms H recalls her parents separating in or about 2005 when she was nine years old. She says one day her mother told her at the table that they were going to leave and told her not to say anything and that after the applicant had left the respondent took things from their home and put them in the car and they moved to Suburb X together with her younger sister Ms M. She says she was happy to be away from the applicant and for the first time felt safe. She says she never spent a night at any of the applicant’s homes from that point on.
The applicant says that within weeks of the respondent and the children moving to the Suburb X apartment, he had finished renovations on the Suburb W property and he moved into the Suburb X apartment and took on more of the homemaking role. This however is inconsistent with his evidence at trial where he refers to mainly going there on Wednesday's for date nights mid-week.
The respondent rejected the proposition that they all moved from Suburb W to Suburb X because of the condition of the Suburb W property. She said that the relationship was abusive by that time. It was unbearable and she did not want to stay there and did not want her children there so she and the children moved to Suburb X and that the applicant did not come with them. She accepted the proposition that the Suburb W property was in a poor state of repair between 2003 and 2005 and that she wanted the family to be living in a better standard of home. She said she had lived in Region CC previously, and said she did not move to Suburb X because of upgrading or because of the children’s schools about because the relationship was abusive. Ms H's evidence is also consistent with the respondent’s evidence about moving to Suburb X.
The respondent rejected the proposition that the applicant lived with the respondent and the children at Suburb X for at least five years. She agreed that she continued to record the Suburb W property as her primary residence with ASIC and the ATO after she moved.
FF Pty Ltd/ GG Pty Ltd
Another dispute between the parties is who set up the business. In his trial affidavit the applicant says he started a business named FF Pty Ltd prior to 1999. The respondent says she set up a business in 1999 called GG Pty Ltd. The respondent said that GG Pty Ltd did not make a profit for the first 12 month period and she used her savings and income from share investments.

The respondent says she stopped taking new clients for GG Pty Ltd after the parties separated in 2005 and removed herself as the director once all existing works ceased in 2007. A copy of the ASIC search of GG Pty Ltd was tendered as Exhibit 2 (but is provided in full annexed to the respondent’s affidavit marked as Annexure A) which states the business was first established in 1995 under a different name with the respondent and three other people listed as directors, none of whom are the applicant. The company then had multiple name changes until the business start date of GG Pty Ltd being 1999 with the respondent as the sole director. GG Pty Ltd was subsequently deregistered in 2007 by ASIC pursuant to section 601AB of the Corporations Act 2001 (Cth) which deals with many circumstances whereby ASIC deregisters a company if they have no reason to believe that the company is carrying out business.
In 2008 the applicant then set up a company with a very similar name being FF Pty Ltd. This is supported by the company ASIC search marked as Annexure C to the respondent’s affidavit. The ASIC search further indicates GG Pty Ltd was deregistered in 2013. There is no reason given for its de-registration.
The Applicant says that the respondent worked with his company after being made redundant by HH Company in 1995 and that the respondent kept working in this business during the relationship until 2010 when she started a new job at JJ Company. He does not provide any evidence supporting the existence of this business.
At paragraph 29 of his trial affidavit, the respondent says that a PO Box was set up in Suburb X for FF Pty Ltd as the unit became the business address in or around 2005. The applicant at Annexure S-3 of his trial affidavit annexes copies of letters from Sydney Water and National Australia Bank which refer to the PO Box. The ASIC search for GG Pty Ltd annexed to the respondent’s affidavit marked at Annexure A indicates that the PO Box was the previous contact for the business from 2003 to 2007. There is no evidence provided that the PO Box was ever used for FF Pty Ltd.
I prefer the evidence of the respondent in this regard. There is no evidence provided to support the existence of FF Pty Ltd and Exhibit 2 makes it clear that that name was never associated with GG Pty Ltd. I find that the respondent, not the applicant set up GG Pty Ltd and the respondent had previously operated under different names with varying business partners prior to 1999.
NATURE AND EXISTENCE OF COMMON RESIDENCE
The applicant claims that he did not move into the Suburb X property in 2005 with the respondent and the children immediately because of his work is unconvincing. He claimed that he did not want to leave his car outside the property with his tools, and claimed that they were dating and would go on date nights on Wednesday nights and that he would also see the respondent on weekends. His evidence is more consistent with the respondent’s version of events that they were separated but that the applicant would come and go as he pleased. The evidence from the respondent's supporting witnesses is also consistent with this.
The respondent says that in 2010 the applicant would sometimes stay with her and the children and that he would come and say that he needed somewhere to stay and would sleep on the sofa bed. The applicant denied telling her that she could not have the father of her children living on the streets and that she agreed with him staying short-term. The applicant claimed that he slept on the sofa bed as he did not like the open window which was facing the freeway in the bedroom. There is no reference to this in his affidavit.
With respect to the period of 2013 to 2018, the applicant claimed he was living at various properties including Suburb W, Suburb T and others in Sydney. He disagreed with the proposition that they had little to do with each other between 2012 and 2018 and that most of their interactions were with respect to the investment properties and the children. He claimed one reason for not living with the respondent full-time was due to parking difficulties, but says he spent most weekends with them and that he would get up early to work at those locations and that he might as well stay there as he had a goal to finish things. At paragraph 46 of his trial affidavit, the applicant refers to
“the tension in the relationship soon settled down and throughout the period 2013‑2018, I regularly saw [Ms Neil] and [Ms M].”
The applicant talks about going on dates with the respondent most Wednesdays. The respondent denies this. The respondent says the applicant would come around on the pretext of seeing the girls and later Ms M. The evidence of the respondent’s supporting witnesses is important here and their evidence support the respondent, not the applicant.
Ms H says at some point, the applicant started visiting them at Suburb X and sometimes would stay overnight and sleep on the sofa. She says she does not consider him family and did not understand why he would come over. The Suburb X apartment had two bedrooms. She and her sister shared one-bedroom and the respondent had the other. Whenever the applicant visited and stayed over he slept on the sofa. He did not stay every night and she had the impression that he used the flat as a crash pad when he did not have somewhere else to go. She says she did not see any affection between the parties and did not ever see the applicant sleep in the respondent’s bed in Suburb X. She says the parties did not talk a great deal and when they did, it was usually about money, usually with the applicant telling the respondent he needed money for various things.
She recalls occasions when the respondent would ask the applicant if he had found somewhere else to go and that it was time for him to leave and that he would reply that he was not leaving.
Over the next few years, the respondent’s sister Ms F states she only saw the applicant a couple of times a year. Whilst the respondent was living at the Suburb X apartment she would stay over for a few nights at a time to look after Ms M whilst the respondent travelled for work. She did not see the applicant there and did not see any of his things at the home. She lived nearby and visited weekly and also minded the children regularly. She says there were no signs that the applicant was living there. There were occasions where he would come over. Ms H also refers to Ms F coming over regularly to mind them.
She rejected the proposition that the applicant lived at the Suburb X apartment over the period of 2005 to 2010 and says the applicant visited there at times when she was present. She did not see him stay overnight when she was there. Appropriately, she agreed that she can only comment on the times when she visited the Suburb X apartment.
In her affidavit, the respondent's sister Ms L said she cannot recall a specific conversation when the respondent told her the relationship with the applicant was over. She does not recall seeing the applicant at the Suburb X apartment. Her evidence was not challenged.
Ms K is a friend of the respondent’s. She says they speak weekly and go out regularly. She says she visited the respondent and the children at Suburb X many times and did not think the applicant lived there. She has a daughter the same age as Ms M and on occasion would collect both girls from Suburb X School and take them to the KK Street apartment. She recounts one occasion when she and the girls let themselves into the property at approximately 4.30pm waking up the applicant who was asleep on the sofa. He screamed at the children, frightening them.
In 2018, Ms K was living in Town LL and running a business in Suburb X. For about two years from 2018, she says would stay with the respondent and sleep on the sofa bed once a week and later once a fortnight. She did not see the applicant on those occasions and did not see any of his belongings there. As Ms K was not cross-examined her evidence is uncontested.
Ms J’s affidavit was unchallenged as the applicant decided not to cross-examine her. Ms J was in a four year relationship with Ms H. They met in 2016 and started dating in 2018. She met the respondent in 2018 when she and Ms H visited from Brisbane. They had dinner at the Suburb X apartment with Ms M. They stayed at the apartment. She did not meet the applicant until 2019 when she came to Sydney with Ms H to attend the applicant’s mother’s funeral. She recalls seeing the respondent with the applicant at one point during that day but otherwise did not see them be affectionate.
She describes an occasion when they visited the respondent’s sister’s home at Christmas. The respondent and Ms M were there but the applicant was not.
She recalls one occasion in February 2020 when they visited the respondent and Ms M and the applicant came over for dinner. She does not recall him staying overnight. She says that usually when she attended family occasions with Ms H the applicant was not present. For example, the respondent and her parents attended Ms H’s university graduation in Brisbane. During the relationship, there are several periods where they visited Sydney and stayed with the respondent and Ms M. She says during those visits. The applicant was not there and there was no sign that she saw that he lived at the apartment.
She and Ms H moved to Sydney in early 2021 and spent three months staying at the respondent’s apartment in Suburb T with her. She often saw the applicant at the apartment block because he was either seeing Ms H or doing some work on the apartments. She recalls one occasion, the applicant losing his temper and shouting at the respondent when there was some confusion around where Ms M was. She says at times, the applicant was aggressive and she felt uncomfortable around him.
The applicant agreed that he took care when preparing his affidavit and he says that from 2018 he moved in full-time to the Suburb X property. However, when pressed in cross examination he said “what is full-time? I have a key tag I am sure I was in and out” and then said “full-time is not seven days and employment is not seven days either” depending on what was more convenient. He claimed that the traffic between Suburb T and Suburb X would be terrible and that was a reason for him staying at the Suburb T property, rather than the Suburb X property. That response is unconvincing. These suburbs are not far from each other.
The applicant was then cross-examined about an affidavit he swore in July 2022 where at paragraph 21 he said between 2012 and 2021 there were periods where the parties lived separately and periods where they lived together. When Counsel pointed out the inconsistency between this statement and his later affidavit saying he lived full-time with the respondent from 2018, he claimed that he did not remember these words “my home" as the properties were always “our properties in our home.” He then said that he did not read it properly and he may have recalled the incorrect dates. He denied these allegations that he would attend the Suburb X property on the pretext of seeing the children but really to see the applicant try and insert himself in her life.
The applicant’s brother Mr B was cross examined. It was suggested that he met the respondent approximately three times between 1997 and 2003. He replied it was several times. When it was suggested that between 2003 and to date, he saw her on perhaps another five occasions, he said perhaps. He was also asked where his brother was living between 2012 and 2008 and he answered “with her. I presume”. When it was suggested that he did not really know and that he cannot be certain that they said they were living together, it was clear that he assumed that the parties were living together, but was not closely involved. He says in his affidavit that there was a falling out in the family over a disagreement in 2012 as to where the applicant’s mother should live and that as a result, the applicant and his brother Mr C did not attend any family get-togethers until after their mother passed away in 2019. Mr B’s evidence does not assist the applicant's case as clearly he was not present most of the time.
The applicant’s brother Mr C was also cross-examined. He disagreed with the proposition that he met the respondent no more than five times between 1997 and 2003 and said it was many times, but he could not put a number on it. He was asked about his comment about seeing the parties at the annual Christmas events between 1996 and 2012. He said he stopped going. This is consistent with Mr B’s evidence about the family falling out. In his affidavit which was only sworn in April 2023, he claims to have attended the Suburb X apartment for a New Year’s Eve party and Christmas functions. The respondent would chat to him about family vacations with the applicant. When he was challenged about these interactions he said he could not remember. When asked where the applicant was living between 2012 and 2018 he said that he thought he was living in Suburb X and that was his understanding. When asked how he had that understanding, he said he saw them a few times in Suburb X. Mr C's evidence was vague. Clearly he was not in close contact with the applicant.
The respondent says the applicant called her from hospital when he was having heart surgery in 2018 and said that he needed somewhere to stay. He agreed that he called her, but not to stay with her. He claimed that he had moved to Region DD temporarily and says they were looking at buying a property there and that he was doing some repairs for people who let him stay with them without paying rent. He denied that the respondent looked after him after his surgery and that after ten weeks she asked him to leave. He denied that proposition, saying that he had to go to N Street, Suburb O to and that he did not stop working. He agreed that he lived at N Street, Suburb O whilst he was renovating the property, and said he did not want to drive one hour a day to see the family, but would see them on weekends and on bushwalks. The applicant attaches photos of the parties on a bushwalk to his affidavit.
The applicant agreed that around this time Ms M was admitted to hospital and underwent a psychiatric assessment. He denied being aware that the hospital would not release Ms M into the respondent’s care if the applicant was living with them. He denied arguing with Ms M and said that she was involved with the wrong people. He said they were having trouble with a teenager, and they were trying to support her.
When Ms H lived in Suburb MM, she says she would come to Sydney most weekends to visit the respondent and Ms M. They were living in the apartment on NN Street, Suburb X at the time, which was a one bedroom plus study apartment. The respondent slept in the bedroom while Ms M had the study. When Ms H visited she would sleep on the couch. The applicant did not stay there on any occasion when she visited and she did not see any of his belongings. Ms H referred to moving back to Sydney, and living in Suburb OO in or around 2020. At the time, the respondent was living in one of the apartments in the Suburb T block and the applicant was living in another apartment in the block. Ms H would see the applicant come and go from his apartment and she did not see any of his possessions at the respondent’s apartment.
WHETHER A SEXUAL RELATIONSHIP EXISTS
The applicant does not address the sexual relationship at all in his trial affidavit. The respondent deposes in her trial affidavit that the parties did not have a sexual relationship from 2003/2005 onwards except for one occasion in 2018. She says if the applicant stayed at the apartment it was not sexual, romantic or intimate, and that he would sleep on a pull-out sofa bed.
The respondent’s Counsel suggested to the applicant that from 2003 to 2005 he would come in and out of the Suburb W home as he wished, but that from late 2003 they did not have sex apart from one instance in 2018. The applicant said this was not correct and when pressed about the inconsistent evidence that they were in a sexual relationship he replied that they "...made love" and had a "...genuine relationship".
Ms F was cross-examined about the reference in her affidavit to a conversation in or around 2010 when she asked the respondent if she was still sleeping with the applicant and the respondent replied, “you have gotta be kidding me [Mr Scrivan] and I have not been together for a very long time.” She conceded that this is something the respondent had told her and that she was not in a position to know whether or not the parties were sleeping together.
I prefer the respondent's evidence. I find that they did not have a sexual relationship after 2003 apart from one occasion in 2018.
DEGREE OF FINANCIAL SUPPORT AND INTERDEPENDENCE
The applicant says the family moved to Suburb PP for about 6 months in 2010 as the lease on the Suburb X apartment was due to expire and Ms H also expressed interest in attending QQ School in Suburb RR. The respondent agreed that one of the reasons for moving to Suburb PP was to be closer to QQ School where Ms H wanted to attend school in 2011. The applicant agreed that he was not on the lease for the Suburb PP property or for the property at Suburb X that Ms M and the respondent moved to. When it was put to him that it would be usual for the parties to be on the lease of the place they were living together he said he did not need to be on the lease but that he did a reference for the respondent to get a property. This evidence is more consistent with their relationship being over. If the parties were together, one would expect both of them to be on the lease, particularly if otherwise the respondent would need to refinance in order to lease a property.
With respect to the applicant’s claim that he arranged the purchase of Motor Vehicle 1 for the respondent in 2015, the respondent denied this and said she obtained a novated lease through her employment and that the applicant had nothing to do with the vehicle.
The applicant conceded that the parties did not share joint bank accounts. However, the applicant claimed he was living in the Suburb SS property and could produce utilities in his name and was asked to produce them to the Court. He produced to the Court an electricity bill for the Suburb SS property in his name from March 2020 to June 2020 marked as Exhibit 5. This is the only utility bill he produced. He relies on this as evidence of the parties living together. This does support his claim that they continued to be in a de facto relationship. The respondent was not cross-examined on this point.
The respondent was cross-examined about a police record in 2019 when Ms M took Motor Vehicle 2 without permission and drove unlicensed. The applicant denied the respondent giving him the Motor Vehicle 2 and said that it was registered in his name and was his car. The respondent disagreed that it was the applicant’s car and said it was hers. She was then cross‑examined about Ms M’s statement to the police that she wanted to go driving and that both her parents work and she thought she would take the car and they would not notice. When it was suggested to her that that is indicative of the parties living together at this time, she said that the applicant came and went. She stated that he was not living there but he may have been at the home at that time. The respondent has been consistent in her evidence.
In 2020, the respondent was living in Suburb SS. The applicant agreed the lease was not in his name and then said the respondent could not get a lease as she is retired but accepted a letter that he wrote to her, which is again more consistent with the respondent’s case of the relationship being over.
The applicant annexes a copy of the family Medicare card which includes the respondent and the child Ms M on the card until 2024. The respondent was cross examined about the fact herself, the applicant, Ms M and Ms H were on the Medicare card to which she agreed. This supports the applicants’ case.

I prefer the evidence of the Respondent and her supporting witnesses. Whilst I accept the applicant stayed overnight at Suburb X from time to time, it was not regular. I am not satisfied that the applicant lived at the Suburb X address and was part of the household.
OWNERSHIP, USE AND ACQUISITION OF PROPERTY
Suburb W Property
The Suburb W property was purchased in 1996. The applicant in his trial affidavit says he researched properties that he could develop and found the Suburb W property and organised for it to be purchased in the respondent’s sole name. After the purchase he began renovation works with the assistance of his friend Mr TT.
The respondent denied that purchasing Suburb W in her sole name was by agreement with the applicant. She did not accept the proposition that it was bought with the intention of her holding it for both of them. In her trial affidavit she says she funded the deposit and acquisition costs. She says the applicant was unemployed and had no savings. The mortgage was in her sole name and she says she made all the mortgage repayments.
1 and 2 P Street, Suburb Q and N Street, Suburb O properties
The applicant says he sold 2 P Street, Suburb Q in 1999 and 1 P Street, Suburb Q a month later and that he gave the respondent $80,000 to repay her for a previous $50,000 loan.
The respondent agrees that in 2005 the applicant refinanced the home loan over the N Street, Suburb O property and drew out $80,000 in equity which was then paid into the GG Pty Ltd account to pay business debts and the applicant purchased a car from his sister. The respondent annexes a title search for the N Street, Suburb O property which shows that the refinance took place in 2005 and not in 2009 as the applicant stated.
First Suburb T property
The applicant says that in 2001 he researched the first Suburb T property and that their neighbour Mr U was interested in purchasing the property with them. He says he made the suggestion to Mr U that they purchase the property together and that all parties agreed to purchase the property. The property was purchased by Mr U and the respondent who paid 50% each. The applicant says the parties refinanced the mortgage over the Suburb W property to pay the 50% deposit on the purchase. The Suburb W mortgage was in her sole name as was the Suburb T properties.
The respondent says in 2002, herself and Mr U purchased the first Suburb T property. She says she provided $25,000 in cash savings and refinanced the mortgage over the Suburb W property to secure the property with Mr U contributing $80,000. She says the applicant did not contribute to the purchase. During cross-examination the respondent denied that the applicant introduced her to that property and that they found it together. Again, she rejected the suggestion that it was agreed between them that it would be held in her name for both of them.
Purchase of the second Suburb T property
The applicant refers to the purchase of the second Suburb T property in 2009 by borrowing $30,000 from Mr U. The applicant also says he organised to refinance the loan over the Suburb W Property to repay Mr U. 2 S Street, Suburb T was purchased 50% to the respondent, 45% to Mr U and 5% to Mr U's father. This lot is situate next to the first Suburb T property which was a further identical lot of units. The applicant says he managed all the renovations on both of the Suburb T properties whilst keeping the respondent and Mr U informed. The respondent says that the applicant was not involved in the purchase of the Suburb T properties and did not provide any funds for the purchases. She says she drew from the equity in the Suburb W Property and the first Suburb T property to finance her share.
The respondent disagreed with the proposition that Suburb T properties needed substantial renovations before it could be rented out. The respondent said that it required some general repairs, painting, tiling, and a bathroom to restore the property after the tenant moved out. She said the applicant would bring other people in to do that work, but conceded he managed some of it.
The applicant agreed he had undertaken renovations on the Suburb T property. He denied telling the respondent not to hire tradies as they would rip her off. He denied the respondent paying him $25,000 for the renovations and $7,000 for labour and claimed that he used the company card. When it was suggested that months later the renovations were not finished, he said he was not coping and was falling behind.
The respondent says they were living in two different apartments at the Suburb T property. The respondent agreed there were two apartments and claims that they lived in one and had belongings and work items in storage in the other apartment. Ms H gives evidence that the applicant and respondent were living in separate apartments at Suburb T. I prefer the evidence of the respondent and Ms H at this point.
Suburb UU and Suburb VV properties
Around 2020, the respondent says she would ask the applicant to leave and he would refuse and that he kept asking her for money so he could buy an investment property in Suburb UU. The applicant agreed that the respondent gave him $30,000 for the purchase and borrowed an extra $80,000 but the purchase did not go through. He denied keeping the $30,000 and he denied saying to the respondent words to the effect of “stop asking me to leave or I will throw you off the balcony.” After this incident the respondent claimed that Ms M moved to Suburb RR as her job was too far for her to drive. The respondent says that she moved into one of the Suburb T properties and that the Applicant returned to the Suburb R property.
DEGREE OF MUTUAL COMMITMENT TO SHARED LIFE
Email exchanges of the parties
The applicant was cross-examined about a series of email exchanges annexed to the respondent’s trial affidavit. The first email is from the respondent on 19 October 2009 proposing a financial settlement and outlining the proposed settlement of essentially a 50/50 division and to split the children’s ongoing expenses equally. The applicant responds on 25 October 2009, saying that clearly they were not happy together and that it is best that they dissolve things to get on with their lives and put a counterproposal forward. The applicant claimed that they would always say things like that and then get back together 48 hours later. He further claimed that they had their ups and downs but stuck together and worked through things. The emails do not read that way. He was further cross-examined about further email from the respondent dated 19 October 2009, where the respondent says:
fyi we would have been together for 15 years, didn’t quite make it. let’s hope the next 15 years is much happier for us both. I will always be here if you need me [sic].
He responded to that email the next morning. His response was longer and included referring trying for intimacy for several years and not being able to fulfil her emotional or physical needs. He ends the email saying:
Lets communicate clearly and appropriately in front of [Ms M] and [Ms H], at some point in life we should move on with our own lives. I am working to give us both Financial Independence [sic].
There are further exchanges over the next several days about reaching a financial settlement. The tension in their exchange escalates. It is clear from both their emails that at this point they are separated but under the same roof with the children. It is also clear from the respondent’s email that her proposal does not involve an immediate clean financial break but envisages them both being involved in the Suburb W and Suburb T properties.
In this exchange the applicant referred to a dispute with respect to the strata and having to go to Court.
There is an emotional exchange on 30 October 2009 where the respondent refers to having a business relationship and them being in the process of completing their financial separation whilst living under the same roof. The applicant responds:
let me show [Ms H] the rubbish you write to me about, so she knows I didn’t desert her, it’s you who drove me away … TODAY IS MY LAST DAY AT [SUBURB X]. You are too immature for me [sic].
The next bundle of email exchanges take place in March 2010. The respondent proposed to the applicant that they subdivide Suburb W to build a house on the back lot and then sell so that they can “separate ourselves financially and emotionally and start over.” She says they will deal with Suburb T separately. His response was to ask to borrow money from her. She responds stating:
I have provide you with several plans over the last 2-3 years - all of which I have copies and NEVER have you given me an honest answer [sic].
She continues referring to his “tantrums and mood swings” and not wanting the girls to be continued to be exposed to it. These exchanges are consistent with the respondent’s case that she ended the relationship but had enormous difficulty in separating their finances.
The respondent annexes further email exchanges in 2012 where they are still discussing a financial settlement. When she expresses frustration he is abusive and on 23 July 2012 says:
Let [Ms H] also know its over her father has now disowned her and want not one things from her. She is not my daughter. Its over.
…
Its family Court and I want all sold, I no longer want to see you or your children [sic].
The applicant denied that those exchanges were consistent with their relationship having broken down. He said they just could not agree on things. When his comment about disowning his daughter was put to him he said “we are always having arguments” and that he wrote that in anger.
The email exchanges in 2014 are about issues with respect to collecting rent and reconciling the expenses. None of these emails support the applicant’s case.
The further email exchanges in April 2017 when the applicant made enquiries about attending family therapy with WW Counsellors, the respondent responds saying she let go 12 years ago when she moved from Suburb W. She refers to him living with another woman and continuing to control her finances and not paying maintenance. These email exchanges are consistent with the respondent’s case that their de facto relationship ceased and are consistent with the respondent's case.
There is a further exchange in 2019 where they argue about land tax and the respondent again complains about the applicant controlling the finances.
There is another exchange in October 2021 where again the parties are arguing about money and the applicant taking rent in cash and not paying it to the bank and not carrying out repairs on the apartments so they can be rented out.
None of the emails annexed by the applicant and respondent indicate an ongoing intimate relationship. The emails reflect the respondent trying to finalise their financial arrangements and the applicant being evasive. Other emails reflect the fact that they continued to have financial entwinements managing the Suburb T properties.
Applicant’s failure to provide disclosure
The applicant has not disclosed any of his tax returns. The applicant complained he did not have them in his possession after being excluded from the home. He has not attended the Australian Taxation Office (‘ATO’) and attempted to retrieve his tax returns.
The respondent’s Counsel suggested to him that the reason he has not disclosed them is because those returns would show he was not living with the respondent at the time he filed in these proceedings and that he did not disclose the respondent as his partner on his tax returns. He disagreed with this.
The applicant was taken through the text of the 2023 letter enclosing the respondent’s tax returns which pointed out that the returns from 2013 claim the tax code single parent with dependents with respect to private health insurance and no spouse is claimed on any of the tax returns. The respondent has requested the ATO produced her tax returns which predated 2010.
The respondent’s lawyers pointed out in that letter that tax returns from 2010 have been digitised and are easily accessible from the ATO portal. The applicant was asked to obtain his tax returns from the portal and provide them, and failing that, sign and return a freedom of information request. The applicant claimed he was going through a lot of challenges. He then said normally they are created by Mr E and then claims that he called the ATO at the time and was told he did not need to file any tax returns. The respondent’s Counsel suggested he was making this up. He conceded when pressed that he did not instruct his lawyers to respond to that letter. When it was suggested that he did not disclose the requested information as he knew it would be fatal to his case he said he was happy to sign the form then and there. I place weight on the fact that the applicant failed to comply with his disclosure obligation on multiple occasions. I am satisfied that these documents would not have supported his case.
The applicant was then cross-examined about the Centrelink authority he was asked to sign on 19 October 2022 which is annexed to the respondent’s trial affidavit. The applicant said “they said if you don’t sign it we’ll get it ourselves so I said get it yourself.” He did not sign and return the authority.
He was cross-examined about the notice to produce of 3 November 2022. The respondent claimed she provided a list, including annexing the notice to produce for the Centrelink authority. The respondent’s Counsel put to the applicant that he did not bring the signed authority with him to Court on 11 November 2022. Again, he attempted to deflect saying if the form had been brought to Court he could have signed it. Again, Counsel suggested to the applicant that he did not comply with the request because he knew the disclosure of the information would be detrimental to his case. Again the applicant said he had been under a lot of stress and on medication. This answer was somewhat disingenuous particularly when he said if he had been given the form he would have signed it despite it having been provided to him on more than one occasion.
The applicant knew or ought to have known this information was important in the context of the dispute. The applicant appointed new lawyers in December 2022. The respondent’s lawyers sent a further letter to his new lawyers with the notice to produce. Again the applicant did not respond. As mentioned above he also did not comply with the further request. As a result of the applicant’s continuing failure to comply with these requests, the respondent filed an application in a proceeding seeking orders. His Honour Judge Dunkley made consent orders on 20 March 2023 whereby the applicant agreed to sign and provide the form by 4pm on 24 March 2023. The respondent went so far as to sign a freedom of information request for her own Centrelink records to show she had nothing to hide. She produced those documents.
I do not accept the applicant’s excuses for not signing the authorities and failing in his disclosure obligations on multiple occasions. He came up with various excuses including claiming he did not have a printer. He could have asked his solicitor to print it or have them printed at Officeworks. He is merely seeking to deflect responsibility. I am satisfied that the applicant was on notice that producing these documents was important for his case, as he bares the onus to establish the existence of the de facto relationship post 2005. I am satisfied that he did not produce his tax returns and did not sign the Centrelink authority because he knew those documents would not support his case.
Respondent’s tax returns
The applicant was cross-examined about the respondent’s tax returns. When cross-examined about her tax return for the year ending 30 June 2013 he said that Mr E was not their accountant at the time and that he is the respondent’s current accountant. He was asked to confirm that these documents have previously been disclosed to him via lawyers and he claimed not to remember and somewhat flippantly said “what do you want me to do with it”. He was taken through the details of the tax return and confirmed that his name was not referred to. He also confirmed that the respondent claimed she was a single parent with dependents on the tax return.
He was also taken to a letter from the respondent’s lawyers to his lawyers dated 23 February 2023 enclosing her tax returns from 2010 to date, noting the most recent ones have previously been disclosed. She does not refer to being in a de facto relationship in any of those tax returns. He claims not to have been aware that claiming a low income spouse on an individual’s tax return reduces the Medicare levy. In closing submissions the applicant stated that Mr E prepared these returns in 2021 on the respondent’s instructions.
The respondent’s accountant Mr E swore a brief affidavit and was cross-examined. The respondent engaged him in December 2019. He has never been engaged by the applicant. Mr E prepared returns for the respondent dating back to 2016 not 2010. . When he was engaged her financial affairs were in disarray. The applicant was collecting the rent in cash and only produced a spreadsheet with no receipts or other payment records. It is clear that finalising the respondent’s returns was made more difficult by the fact that the applicant took cash from the tenants at Suburb T and did not keep proper records. He refers to a conversation he had with the respondent in his office when she said words to the effect:
The situation with [Mr Scrivan] is complicated. We have been apart for many years, but he is still around. It is messy.
Mr E was cross-examined about a series of emails with respect to the preparation of the respondent’s tax returns which had not be done for a few years back to 2016 or 2017. He confirmed that the applicant was involved but could not recall what he provided beyond the spreadsheet. This does not assist the applicant’s case as it is not disputed that the applicant was managing the rentals at the Suburb T properties. He confirmed that he prepared the respondent’s returns on her instructions. She did not declare a spouse. He further said the conservations he had with the respondent and where she was living indicated to him they were not in a relationship. He agreed that he relies on the evidence provided by clients.
The applicant accepted when cross-examined that the tax returns provided by the respondent dating back to 2010 show she did not claim to have a de facto spouse. This is long before Mr E prepared her returns.
CARE AND SUPPORT OF CHILDREN
Ms H in her affidavit states whilst living in Suburb X her Aunt Ms F lived nearby and often came over to mind them.
In 2012, Ms H was diagnosed with a mental illness and was hospitalised. In 2013 Ms H moved to Suburb MM to live with her maternal grandparents. The applicant says the respondent and Ms M moved to Suburb X and that he lived between various properties including the Suburb W property and Suburb T property and others.
The applicant in his affidavit at paragraph 42 claims the parties were living in Suburb Z where he and the respondent were having troubles dealing with Ms H’s mental issues where they had different opinions on how to handle the situation. The respondent denied discussing Ms H’s health with the applicant in any detail around the time she was hospitalised in 2012. When the respondent was challenged that it was a significant event to arrange their daughter to be hospitalised, she replied that it did not happen on a single day, but over a period of time and given the abusive nature of the relationship and the fact that the applicant’s abuse may have harmed Ms H, she kept the information to herself. She said they were not co-parenting and that she was trying to escape him and told him the bare minimum.
After being released from hospital, Ms H went to live with the mother’s parents. The respondent agreed that after this she moved from Suburb Z to Suburb X. The applicant denies being in a relationship with Ms XX for seven years and said that she is a friend and client and he lived with her as she had a big house. It is unclear as to what period he is referring to here and why he would live with Ms XX and not the respondent. I accept the submission on behalf of the applicant that it is possible to be in more than one de facto relationship at a time.

I accept too that there are aspects of the applicant's evidence that is consistent with their relationship continuing after the respondent says it ended. For example, the text exchange between the applicant and his brother Mr B dated 7 January 2012 is suggestive of the de facto relationship continuing as the applicant refers to being in the car with the respondent and Ms H having left Ms M with the maternal grandparents and the respondent being asleep and was unable to coordinate visiting Mr B on their way back. Mr B also annexes photographs of the extended family gatherings at Easter in 2008 and Christmas 2008 and 2009 when the respondent and the girls were present.
At paragraph 49 of his trial affidavit, the Applicant refers to Ms H in 2014 wanting to live with him in Sydney. He says he told her he needed to find a two bedroom flat but she was then accepted to attend university in Queensland. His own evidence here is consistent with the respondent’s case. The respondent says Ms H did not ask the applicant to help her find a unit in Sydney. The respondent says after Ms H finished high school and living with the maternal grandparents she moved to Queensland to go to university. Given the animus Ms H feels towards the applicant, this is not credible as this position was not put to them as neither Ms H nor Ms J were cross-examined.
In June 2014 the applicant made a report to the police about their daughter, this was tendered and marked as Exhibit 4. The police officer recorded in the report that the applicant told him that his daughter was not living with him and that he had received an email from his ex-wife. During cross-examination he confirmed he told the police the respondent was his ex-wife. When asked if he told the police officer he did not live with her he did not reply, but when pressed said he did not live with her full time.
The respondent also agreed that between 2005 and 2010 the applicant would occasionally collect the children from school and deliver them. This is something separated parents do.
REPUTATION AND PUBLIC ASPECTS OF THE RELATIONSHIP
Family events
The respondent’s sister Ms L has lived in Region YY since about 1987. She says she kept in regular contact with the respondent and they visited each other in Sydney and Region YY respectively.
She says the respondent and the children stayed with her in Region YY on about five occasions. On one occasion whilst the respondent and the children were holidaying with her the applicant turned up at her house. He had called the respondent saying he was going to swap cars. Ms L says he was not invited and that when he came over it was awkward.
The parties’ daughter Ms H in her affidavit states she recalls several occasions, spending holidays in Queensland with the respondent and sister and her aunt Ms L who lived in Region YY. She recalled on one occasion, the applicant turned up unannounced and she recalled her parents fighting and the respondent, saying, “You follow us around like a bad smell.” She recalls another occasion when he turned up uninvited to Ms L’s home. She heard Ms L tell him that it was just the family and asked him to leave but the applicant refused.
The respondent’s Counsel put to the applicant that he was not invited when the respondent and the children went to Queensland to visit her sister. He claimed he was always invited and that he had to drive up. The respondent and children would often take the plane and he would drive as it was too much for all of them to be in the car. Again, it was suggested that he took the car because he was not invited and ultimately he stayed on the sofa for three nights. He denied the respondent saying to him that he followed them around like a bad smell and denied Ms H hearing that.
I prefer the evidence of the respondent and her witnesses and find that the applicant attended uninvited. This is consistent with the respondent’s evidence that they were separated but that he would keep continue to attend unannounced and Ms L's evidence about the applicant attending uninvited.
Ms L referred to many family occasions where the applicant was not invited and did not attend including her father’s 70^th birthday in or around 2005 at Suburb MM. She came down from Region YY. The applicant agreed he did not attend the respondent’s father’s 70^th birthday in 2005.
The applicant agreed he did not attend the respondent’s niece’s wedding in Country ZZ in 2012 saying he did not want to go to Country ZZ. He said it was an issue with having the whole family flying on a plane. He then said he did not want to go and that he was in fact invited but had some work to do.
The applicant’s solicitor advocate asked the respondent about her 60^th birthday celebration. She said she had a small celebration with close friends. When suggested the applicant did not attend she spontaneous replied “why would he no”. She rejected the suggestion that it was only for close girlfriends and pointed out that her parents attended. When it was suggested to the applicant that he did not go to the respondent’s 60^th birthday in 2018 he said he could not remember a formal birthday for her. When he was shown photos of people celebrating her birthday and he not being there he talked about having another celebration elsewhere.
The applicant agreed he did not attend Ms H’s graduation in 2018. He said they were not getting along. It is a significant milestone in his daughter’s life.
He conceded he did not go to City AB with the respondent in 2017 and he could not recall if he attended the respondent’s father’s 80^th birthday.
Ms K says there have been many events in their family and friendship circle that the respondent and the girls attended without the applicant. She gave a few examples. Her evidence is unchallenged as the applicant decided not to cross-examine her.
Photos and text messages
The respondent was shown a series of photos but when it was suggested the applicant took them she said she did not know who took them or how he would get them. She pointed out that the applicant was in one of the photos. She then said that the applicant would often insist on taking photos and insisted that they look like a happy family unit. Photos are a snapshot of a moment in time.
She was also cross-examined about photos of her and the respondent walking on in December 2017, January 2018 and March 2020. She said the first photo was on a walk she often does from Suburb AC to Suburb AD. She said the applicant was interested in getting fit in 2017 or 2018 and she invited him to come which he did every now and then.
The applicant annexes in his trial affidavit an email from the respondent dated 4 November 2013 regarding their attendance and payment for attending a medical professional. When queried about this email, the respondent stated that they both saw the same doctor and both had a medical procedure around the same time.
The applicant said they did not give each other birthday or Christmas cards.
The applicant claimed that he had a substantial amount of messages and photos supporting his contention that the parties were in a de facto relationship post 2003. When it was put to him that he does not disclose any romantic texts post 2003, he said that his phone was taken from him and then said he had many emails saying “I love you” which he could recover. Again it was suggested that he has not produced them because they do not exist. If he had supporting evidence he would have provided it. His evidence and that of his witnesses are vague. I am satisfied that if the applicant had romantic messages he would have annexed them to his trial affidavit. The messages he annexed to support his contention that their relationship was more consistent with the respondent's contention.
Work events
The applicant points to the parties attending work events as evidence of their relationship continuing. However, the respondent's explanation for attending these events is being for networking for business contacts, noting the parties continued to have financial connections.
The respondent rejected the suggestion that the times that they socialised together were mainly work events, and that she would go as it was a business networking event for her and they went platonically. She agreed she attend a work dinner event with the applicant in 2019.
The applicant says they moved to Suburb Z in or around late 2011 in order to be closer to QQ School for Ms H. He refers to attending events as a couple in 2011. The respondent agreed that she attended a work colleagues speech in 2011 and also went to Country AE with the applicant for Mr AF’s wedding. When it was suggested they were friends, she said that Mr AF was a business contact of theirs that they knew through work. Attending these events together does not mean they presented as a couple rather than business partners. This was not put to the respondent and the applicant provides no detail as to the nature of the invitations.
Ms D was cross-examined. She said she spoke to the applicant the night before she was cross‑examined, telling him that she hoped everything went well and that he was okay. She claims they did not discuss the proceedings. In her affidavit she says she has known the applicant as a friend and business partner for 30 years, but did not disclose that they had been in an intimate relationship. She said she met her partner in 1995 and 1996 so it was prior to then. She was challenged about the conversations she alleged she had with the respondent in her affidavit. She agreed with the proposition that it was hard to remember from 10 years prior. She believed the applicant was living with the respondent in Suburb X until 2018. She said she could not say full-time, as she was not there. Her evidence does not advance the applicant's case. Again she relies on the applicant's version of events. She annexes a text exchange with photos of the applicant in 2021 which she says the respondent sent to her. The applicant and respondent were not cross-examined about these text exchanges.
IMPRESSIONS OF WITNESSES
The applicant was not an impressive witness. He attempted to deflect his actions and had to be warned on several occasions to focus on what he was being asked during cross-examination.
The respondent was careful in her evidence and particular about her wording. For example, she was asked to agree with the proposition that the applicant was doing various construction projects at Suburb W and Suburb T between 2013 and 2018. She said there was no construction and only required repair and maintenance work when tenants moved in and out. Part of her case is that the applicant insisted on managing the tenants and the repairs saying he could do a better job than the agent.
The applicant’s witnesses did not greatly advance his case as they clearly did not spend a lot of time with the applicant at the relevant periods. In contrast, the respondent’s witnesses did support the respondent's case. The respondent's supporting witnesses support her version of events. In contrast to the applicant's supporting witnesses, they were regularly in contact with the respondent and their evidence was also internally consistent.
THE PARTIES’ CLOSING SUBMISSIONS
I have considered the applicant’s written and oral submissions and the respondent’s submissions. The applicant submits that the evidence of the applicant and his supporting witnesses shows that there is a continuing relationship from 1995 until October 2021. I do not accept this given the contradictory evidence given by the respondent and her supporting witnesses which were more detailed and internally consistent. Some of the material the applicant relies on to establish the existence of a de facto relationship does not in fact support that contention.
In closing submissions the applicant’s solicitor submitted that where the parties give conflicting accounts it is necessary to turn to the documents. However, as the respondent’s Counsel pointed out in cases such as this it is also necessary to consider the credibility of the witnesses. In several instances, the documents themselves do not definitively support the existence or otherwise of the relationship, but when considered together with the parties’ evidence and that of the witnesses, they tend to support one parties’ version more than the other. As is typical in these types of cases, the evidence does not all point in one parties’ favour.
The applicant's written submissions say that the respondent’s own evidence supports the applicant frequently staying for months at a time at her home well beyond the alleged date of separation. This submission is inconsistent as it is the respondent’s evidence that he would come and go and this is consistent with the fact that her supporting witnesses who attended her home regularly over the years did not regularly see the applicant there and did not see his belongings there. The applicant seeks to rely on the communication and strong association between the parties’ in the years since 2003 as evidence of their continuation of the de facto relationship. However, this does not grapple with the fact that they had two young children and also had ongoing financial interests, particular with respect to the Suburb T properties.
Contrary to the applicant’s submission, the Centrelink document completed by the respondent referring to not knowing where the applicant was living is consistent with her evidence about moving to get away from him. Her notations on the form that she did not tell anyone about the breakup is consistent with her trying to get away from a violent and controlling relationship. It is clear that the respondent relied on her memory when referring to 2005 in her affidavit material and it was only upon seeing the Centrelink form and the date of signature when she started talking about 2003. The fact that she ticked the box that it was possible that the parties would reconcile on the Centrelink form does not detract from her credibility as in fact it is consistent with the messiness of their relationship and her multiple attempts to sever their financial relationship.
At paragraph 23 of his written submissions, the applicant says that from 2005 to 2010 the applicant would live in partially renovated properties during the week and see the respondent on Wednesday nights and weekends because of his expensive tools in his car. This explanation is insufficient as he does not suggest that the Suburb W renovations were continuing and I am not satisfied that there were ongoing excessive renovations at the Suburb T properties. Indeed, the applicant’s evidence suggests that he carried out various maintenance and renovation works at different people’s properties and stayed there. The applicant annexes in his trial affidavit an email to the respondent where he refers to himself as being a caretaker of a property so that his rent will be reduced.
The applicant says in his written submissions that he concedes that there were brief periods of separation during the relationship because of financial strains and their daughter’s mental health and behavioural issues, however, the applicant does not say that at all in his affidavit evidence, significantly, he does not refer to any periods of separation.
The applicant in his written submissions says that he maintains there was an ongoing sexual relationship throughout the period, but his affidavit is absolutely silent on this. The respondent concedes them sleeping together once in 2018. The applicant’s written submissions also referred to photos being evidence of affection between the parties and that this supports an ongoing level of intimacy and sexual relationship between the parties. The photos do not show that. The photos show them together with the children at various family events but did not show affection between the parties and it is a leap to suggest that they support their sexual relationship continuing.
At a few places, the written submissions fall into the trap of referring to matters that were not established. For example, at paragraph 39 the applicant refers to them attending meetings together with their accountants, but this is not in the applicant’s evidence and the email exchanges with Mr E are equally consistent with the respondent’s case that it was necessary to communicate with him to obtain information in order to complete the tax returns with respect to the rent and expenses for the Suburb T properties.
It also refers to the applicant transferring the ownership and directorship of the company FF Pty Ltd partners to the respondent without consideration. Again, he does not say this in his affidavit and the ASIC documents do not support this.
Further, the applicant’s submissions that the correspondence showing his name appearing on documents with respect to the acquisition of the properties at Suburb W and Suburb T are not correct. The only documents that he produces are with respect to managing the Suburb T properties. There is no dispute that he was involved in managing the Suburb T properties. He does not produce any documents with respect to the acquisition of these properties, and it is consistent with the respondent’s case that these documents would not show the applicant being involved.
The evidence does not support the applicant being “very involved in the children’s lives.” and does not establish him as primary caregiver. It is important that submissions are based on the evidence that is actually before the Court not what the party hopes it would establish. At paragraph 49 of his trial affidavit, he claims that Ms H asked him to pay for her rent in Queensland which he agreed to do on his credit card. However at paragraph 46 of her affidavit, Ms H states that the respondent mother paid her rent when she could no longer do so. Ms H denies the applicant ever contributed to her rent in Queensland. I certainly accept that there was some ongoing involvement by the applicant with respect to the children, but I do not accept that the applicant’s evidence establishes that he was significantly involved as he claims and that ongoing involvement is not inconsistent with the parties being separated.
Further in the submissions, the applicant says that the attendance of the parties at various work events show they had presented as a couple. There is no evidence that they were invited as a couple. It was not put to either party in cross-examination and without context, it is impossible to know what is meant by presented as a couple.[2]
[2] See Crick and Bennett [2018] FamCAFC 68, at paragraphs 9-10.
I accept that the applicant has submitted evidence that shows the parties socialising on occasion, including at family gatherings and going on walks. Just as the applicant argues that the respondent’s non-attendance at some key events such as the respondent’s 60th birthday does not prove they were not in a relationship, nor does the attendance at these events establish a relationship. Without more context it cannot be assumed that a photograph taken of the parties together is automatically presenting themselves as a couple in a genuine domestic relationship. There are gaps of many years where the applicant does not produce any photographs of them attending anything together.
I reject the submission that because Ms H moved to Suburb MM and then Queensland in 2013 that she was unable to comment on their relationship. In fact, Ms H gives detailed evidence that was unchallenged. She was in a position to comment on what she witnessed and did not witness during the periods that she visited, which are consistent with the respondent’s evidence and also the evidence of the respondent’s other witnesses.
The applicant’s written submissions at paragraph 65 misstate evidence of the respondent and that the respondent “essentially conceded that the parties were separated living under the same roof on and off up until 2021”. She did not make that concession at all.
I also reject the written submission with respect to the allegations of domestic violence after 2009 but before 2021 gives further support to the parties not separating before 2009. This submission is illogical. All too often domestic violence does not end with the relationship but intensifies.

The applicant also says there is no evidence of any request by the respondent for the applicant to pay child support. Though this is true the respondent was not asked about this in cross‑examination. Her evidence is that he was often unemployed, continued to be violent towards her and the children and would demand money from her.
In closing submissions, Counsel for the respondent pointed out the unsatisfactory nature of the applicant’s evidence. During cross-examination he repeatedly had to be warned to listen to the question and answer those questions. He frequently went on tangents and at times was evasive. His written evidence was vague and there were inconsistencies in his oral and written evidence. His supporting witnesses did not greatly advance his case as they clearly did not see the respondent very often.
In contrast, the respondent answered questions directly and was forthright in her answers. The evidence of her supporting witnesses also supported her evidence. Significantly, three of her supporting witnesses were not cross-examined which means their evidence which supports the respondent’s case is unchallenged. It is not a case of witnesses not being cross-examined because their evidence is not relevant to the issue the Court must determine.
I accept the respondent’s submissions with respect to the importance of the Centrelink document and the fact that it is entirely consistent with her case where she clearly refers to an ex-partner. Presumably if the messages the applicant annexes to his affidavit are the most helpful ones he could find, they fall well short of establishing the fact that their de facto relationship continued until 2021. He accepted that they attended some family functions and work events, but that is not sufficient to establish the continuation of the de facto relationship. I accept his submissions with respect to the caution that needs to be applied when looking at the police record, which is clearly a summary by a police officer. It does not contain a statement by the respondent which she adopted. That summary refers to the wrong terminology, referring to spouses and divorce and it cannot be assumed that it accurately records everything the respondent said. The respondent was adamant that she would not have said they were in a relationship for 17 years. Certainly they knew each other for that period.
CONCLUSION
As there have been so many disputed facts in this case and aspects of the evidence that have pointed in different directions, it has been necessary to painstakingly review the parties written and oral evidence, and that of their supporting witnesses. The applicant has failed to discharge his onus on showing that the parties were living together on a genuine domestic basis after December 2003. Living together on a genuine basis does not require the parties to live together in the same house, but it does require other evidence of coupledom. I am mindful of the comments of the Full Court in Cuan v Kostelac [2017] FamCAFC 188 with respect to it not always being possible to identify the date of the breakdown of the relationship precisely. In this case there was some inconsistencies about dates that were unremarkable given they related to events many years prior. I find that the de facto relationship had ended by 31 December 2003 as reflected in the Centrelink form the respondent completed which is consistent with her evidence.
Given the parties had children and also had intertwined financial assets, it is not surprising that they continued to interact. Relationships and the end of relationships can be messy. It is also not a matter of the parties' perceptions being important, but what the facts establish.
Having considered the whole of the evidence I am satisfied that the parties de facto relationship broke down well before 1 March 2009 and therefore this Court does not have jurisdiction.
The respondent's Counsel referred to an outstanding cost application from a previous Court attendance. I will direct that should the respondent seek costs from the reserved costs and/or the trial, that written submissions and any supporting documents be filed within 28 days and that the applicant file written submissions and any supporting documents 28 days thereafter. I will then determine the costs application in chambers unless either party seeks an oral hearing.

I certify that the preceding two hundred (200) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Harland.
Associate:
Dated: 1 August 2023

File number(s):	PAC 3861 of 2022
Judgment of:	JUDGE HARLAND
Date of judgment:	1 August 2023
Catchwords:	FAMILY LAW – de facto - dispute as to length of de facto relationship - applicant contends relationship ended in 2021 - respondent contends relationship ended before 2009 and the court does not have jurisdiction
Legislation:	Corporations Act 2001 (Cth) s. 601AB Family Law Act1975 (Cth) ss. 4AA, 90RD Family Law Amendment (De Facto Financial Matters and Other Measures) Act2008 (Cth)
Cases cited:	Crick and Bennett [2018] FamCAFC 68 Cuan v Kostelac [2017] FamCAFC 188 Delamarre and Asprey [2014] FamCAFC 218 Fairburn and Radecki [2022] HCA 18 Lynam v Director General of Social Security (1983) 52 ALR 128 Sinclair and Whittaker [2013] FamCAFC 129
Division:	Division 2 Family Law
Number of paragraphs:	200
Date of last submission/s:	11 May 2023
Date of hearing:	9, 10, and 11 May 2023
Place:	Parramatta
Solicitor for the Applicant	Mr Sim of Crowther Sim Lawyers
Counsel for the Respondent	Mr Schonell
Solicitor for the Respondent	Boyce & Boyce

PAC 3861 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR SCRIVAN Applicant
AND:	MS NEIL Respondent

ORDER MADE BY:	JUDGE HARLAND
DATE OF ORDER:	1 AUGUST 2023