Somers and Collier

[2016] FCCA 1629

FEDERAL CIRCUIT COURT OF AUSTRALIA

SOMERS & COLLIER [2016] FCCA 1629

Catchwords:  
FAMILY LAW – Whether de facto relationship exists – consideration of section 4AA(2) – application dismissed.

Legislation:

Family Law Act 1975, ss.4AA, 90RD, 90SB

Jonah & White [2011] FamCA 221
Lynam v Director-General of Social Security (1983) 52 ALR 128
Onslow & Onslow [2016] FamCAFC 7
Sinclair & Whittaker (2013) FLC 93-551

Applicant: MR SOMERS

Respondent: MS COLLIER

File Number: SYC 7198 of 2013

Judgment of: Judge Sexton

Hearing dates: 9, 11 and 15 June 2015

Date of Last Submission: 14 August 2015

Delivered at: Sydney

Delivered on: 30 June 2016

REPRESENTATION

Counsel for the Applicant: Mr A. Givney

Solicitors for the Applicant: Schultz Toomey O'Brien Lawyers

Counsel for the Respondent: Ms S. Christie

Solicitors for the Respondent: Watts Mccray Lawyers

THE COURT ORDERS THAT:

1. The Application filed on 9 December 2013 be dismissed.

2. Any application for costs be filed and served within 28 days.

3. Any response to the application for costs be filed and served within a further 28 days.

IT IS NOTED that publication of this judgment under the pseudonym Somers & Collier is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 7198 of 2013

MR SOMERS

Applicant

And

MS COLLIER

Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant seeks final Orders for property adjustment under the Family Law Act 1975. As a preliminary issue, the Applicant seeks a declaration pursuant to s. 90RD of the Family Law Act 1975 that the parties were in a de facto relationship between (omitted) 1998 and 2 April 2013.  

2. The Applicant says it was only after the relationship was over that it was drawn to his attention that he and the Respondent had been in a de facto relationship.

3. The Applicant’s counsel submits that the evidence supports a finding that the parties were “living together” albeit for a substantial part of their relationship they maintained separate accommodation.”[1]

   [1] At page 5 of Applicant’s written submissions

4. The Respondent seeks an Order that the Application be dismissed for want of jurisdiction, with costs on an indemnity basis. The Respondent says that the parties were a couple, and that they shared a residence from (omitted) 2011 until late March 2013.  She says their romantic relationship had ended by approximately mid-2011. The Respondent asserts that the parties were never in a ‘de facto relationship’ such as to ground a declaration that a de facto relationship existed between them. The Respondent’s counsel submits that even if the Court were to find that the parties were in a de facto relationship during the shared residence period from May 2011 to March 2013, that period was less than the 2 year time period required pursuant to s.90SB. Counsel submits that the other provisions of s.90SB do not apply. The Applicant’s counsel submits that even if the Court finds the parties were in a de facto relationship of under 2 years, the Applicant would suffer serious injustice if a declaration was not made because of the substantial contributions he has made.

Background

1. Both parties had been previously married with minor children before they commenced a relationship in (omitted) 1998.  They did not have children together.

2. The Applicant was 60 years of age at the date of hearing and was employed as a (occupation omitted) at the (employer omitted). He was living in (omitted).  

3. The Respondent was 57 years of age at the date of hearing, was unemployed and living in (omitted).  

Issue

1. The issue for determination is whether the grounds exist for a declaration that the parties were in a ‘de facto relationship’ at any time between (omitted) 1998 and March 2013 and if so, whether the requirements under s.90SB have been met.

Credit

1. I find the Applicant’s affidavit includes inconsistent material, and numbers of factual errors, which adversely impact on his credit overall.  Exhibit 1 includes amendments to his affidavit, but does not address all of these concerns.  The Applicant acknowledges in cross examination a number of factual errors in his affidavits.  In his affidavit sworn 26 April 2015, the Applicant deposes to always being employed “during the relationship.”[2] However, in his two 2007 applications for a carer’s allowance[3], the Applicant says he is not employed, contradicting his affidavit evidence in these proceedings.  This is a serious matter, not excused by his assertion that his mother filled out the form and reflects poorly on his credit. 

   [2] At paragraph 85 of Applicant’s affidavit sworn on 26 April 2015

   [3] Exhibit 3

2. When challenged on factual errors in cross examination, the Applicant says he “overread” the affidavits, reading what he thought was written, not what was actually written.[4] For example, he deposed to his brother Mr C being involved in obtaining the mortgage on the property at Property B, when he says he meant “Mr C…(occupation omitted).”[5] The Applicant also admitted a number of errors in dates on which the parties travelled together. 

   [4] At page 30 of 9 June 2016 transcript of proceedings

   [5] At page 31 of 9 June 2016 transcript of proceedings

3. The Applicant acknowledges that his evidence about his travel to (omitted) was inaccurate in a number of respects. I am satisfied he gave substantially inaccurate information about his trips to (omitted) when the Respondent was spending a lot of time there.  For example, he deposes to the Respondent’s son-in-law regularly travelling to (omitted) to see his son from a previous relationship, from the commencement of his relationship with the Respondent in 1998.  The child referred to was not born until (omitted) 2002.  He exaggerated the period during which he was travelling with the Respondent to (omitted), deposing to the period commencing in 2001/2 instead of 2008.  I am also satisfied he exaggerated the number of times he travelled to (omitted). Having deposed to travelling to (omitted) 6 times a year from 2002 to 2013 (a total of 66 times),[6] in cross examination he acknowledged he may have overestimated the number of times he travelled.     

   [6] At paragraph 8 of Applicant’s affidavit sworn on 29 May 2015

4. While, as outlined later in these Reasons, I do not accept all the Respondent’s evidence, I am satisfied the Respondent used her best endeavours to give a careful history of the parties’ relationship, even when her responses to questions were against interest.            

Legal Principles

1. The onus is on the Applicant to prove, on the balance of probabilities, that the parties were in a de facto relationship.

2. The power to make a declaration as sought by the Applicant is found in s.90RD of the Family Law Act 1975. S.90RD(2) empowers the Court to declare, inter alia:

   a)The period, or periods, of the de facto relationship; and

   b)When a de facto relationship ended.

3. The definition of a ‘de facto relationship’ is found in s.4AA of the Act. S.4AA(1) provides:

   (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.    

4. Section 4AA(2) sets out a number of criteria which the Court may consider in determining whether such a relationship exists. The Full Court recently stated[7]:

   …the court is charged with deciding, relevantly, whether (either at all or at a relevant time or times) the parties had a “relationship as a couple” who were “living together on a genuine domestic basis”. In undertaking that task, the court is obliged to consider all of the circumstances pertaining to the relationship.  Section 4AA(2) lists circumstances that may be included in that enquiry.

   [7] Onslow & Onslow [2016] FamCAFC 7

1. The Full Court stated that the “proper approach and relevant principles were examined by this Court in Sinclair & Whittaker (2013) FLC 93-551.” In Sinclair[8], the Full Court said that:

   ….whether or not a de facto relationship, as defined, exists will depend upon an assessment of all of the circumstances of the relationship, each to be given the weight the court thinks appropriate.

   [8] (2013) FLC 93-551

1. In Lynam v Director-General of Social Security[9], the Federal Court said that:

   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.

   [9] (1983) 52 ALR 128 at 131

2. S 4AA(2) provides that the circumstances being considered may include any or all of the following[10]:

   [10] s.4AA(2)

   (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. S.4AA(3) provides that “no particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.” Section 4AA(4) provides that “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.” 

4. I agree with counsel for the Applicant that living together under the same roof is “not an absolute necessity for the Court to find the existence of a de facto relationship.”[11] I also agree with counsel for the Respondent that the Act is not intended to apply to all couples, but only to de facto couples.[12]  For the Court to decide the parties were in a de facto relationship, the Court must be satisfied that the parties were “living together on a genuine domestic basis”.[13] The history of the parties’ living arrangements is therefore significant.

   [11] At page 20 of Applicant’s written submissions

   [12] At page 10 of Respondent’s written submissions

   [13] Section 4AA(1)(c)

The parties’ living arrangements from (omitted) 1998 – March 2013

1. The facts as to the parties’ living arrangements are not in dispute except to the extent of the time they spent with each other, particularly overnight.  It is common ground that between (omitted) 1998 and May 2011 the parties did not live in the same residence.  It is also common ground that from (omitted) 2011 until late March 2013 (the Applicant says 2 April 2013 but the parties did not live under the same roof after 27 March 2013) the Applicant lived with the Respondent at the Respondent’s home unit in Property A.  

2. At the time the parties started dating in (omitted) 1998, the Respondent was living with her mother and her two children (then aged 13 and 15 years) in a property owned by her mother in (omitted). The Applicant was renting a unit with his mother.  

3. In August 1999, the Applicant purchased a property with the Respondent and his mother at Property B as tenants in common.  Following settlement of the purchase in October 1999, the Applicant lived with his mother in that unit.  Until 2007 the Respondent remained living with her mother and children at (omitted).

4. On 5 March 2007, the Respondent purchased Property E in her sole name and moved into that unit in late July 2007.  Property E was in the same unit block as Property B. It is not disputed that the Respondent did not move in with the Applicant and his mother, who remained living at Property B, and the Applicant did not move in with the Respondent at Property E.  

5. The Applicant remained living at Property E until late October 2009, when she sold the unit and purchased Property A (Property A) into which she moved. There was no discussion about her living with the Applicant who remained at Property B with his mother.

6. On (omitted) 2011, the Respondent’s mother died. On (omitted) 2011, the Applicant’s mother died.  The Applicant remained in Property B until the executors of his mother’s estate sold Property B.  The sale of Property B was due to settle in June 2011.  In May 2011, the Applicant moved into the Respondent's Property A home.

7. From May 2011 until the end of March 2013, the Applicant and the Respondent lived in the Property A.

8. In December 2011, the Respondent bought a property in Property D in her sole name. The purchase settled in March 2012.   In early 2012, the Applicant purchased a property at Property C, (‘the Property C property’) in his sole name. The unit was tenanted.

9. Since he left the Property A property in late March/early April 2013, the Applicant has lived at (omitted).  In March 2014, the Respondent sold the Property A and permanently relocated to her home in Property D.

The duration of the relationship

1. It is common ground that, having dated in mid to late 1977, the parties began dating on a regular basis after meeting again at a party on (omitted) 1998.        

2. I am satisfied that the parties’ relationship continued until approximately late 2012, although I find it deteriorated over time.  I address my reasons for this finding later in these Reasons. The Respondent deposes to telling the Applicant on 25 March 2013 that she wanted him to move out of her home at Property A. He responded, “Do you expect me just to pack my bags and go?”  The Respondent said, “That would be the civilised thing to do.”[14] On 27 March 2013, the Applicant travelled to (omitted)/(omitted). The Respondent says she sent a text message telling him he could no longer live in her unit, and you “can’t get in.”[15] The following weekend, the Respondent says she placed the Applicant’s belongings in a storage facility away from her home. The Applicant says it was 2 April 2013 when he received the text message from the Respondent[16], but I find nothing of significance turns on the difference in these dates.  I am satisfied the parties were not living under the same roof after 27 March 2013.    

   [14] At page 23 of Respondent’s affidavit sworn on 11 May 2015

   [15] At Annexure D of Respondent’s affidavit sworn on 11 May 2015

   [16] At paragraph 5 of Applicant’s affidavit sworn on 26 April 2015

The nature and extent of their common residence

1. As already noted, from (omitted) 1998 to May 2011, the parties lived in separate homes.  From May 2011 to the end of March 2013, the parties lived in the same home. 

(omitted) 1998 – May 2011

1. It is common ground that the Applicant rarely, if ever, stayed overnight with the Respondent at her homes in either (omitted) or in Property E, and the Applicant deposes to staying overnight at the Property A unit on only one or two occasions before moving there in May 2011. 

2. The parties are in dispute, however, as to how often the Respondent stayed overnight with the Applicant at his home and there is a difference in their evidence on how much time they spent together.

3. I find the Applicant’s affidavit evidence unclear on this issue because it is not consistent.  On my reading of his April 2015 affidavit, the Applicant deposes to the parties being together overnight from Friday night to Monday. In his May 2015 affidavit, the Applicant says that the Respondent would not stay with him on Sunday nights but they would spend Friday night to Sunday morning not less than 40 weekends a year, and never less than 1 night each weekend unless the Respondent was away. The Applicant says that from June 2006, the parties’ routine overnight time together increased from Thursday to Sunday morning, at least 40 weeks a year.  He says the Respondent was taking Thursdays off work and told him she wanted to see more of him. In cross examination, the Applicant was adamant that the Respondent’s usual routine was to stay at his home more than one night a week. He then says it was always one night a week, routinely Friday nights until 2006 and on many other occasions, an extra night or two.  He says that from 2006 to 2008 the Respondent stayed with him most Thursday nights, all Fridays and often Saturday night.  He says that he suggested the Respondent buy Property E in 2007 as “our relationship was getting stronger.”[17] 

   [17] At paragraph 49 of Applicant’s affidavit sworn on 26 April 2015

4. The Respondent strongly denies that from (omitted) 1998 to June 2006 she stayed with the Applicant for 2 nights on most weekends of the year as contended by the Applicant.  The Respondent says that between 1998 and 2002, she did not stay at the Applicant’s residence very often because of her commitment to her children who were very much her priority, though she says the parties continued to regularly date and to have a sexual relationship. The Respondent says she used to see the Applicant for “an hour or two around 9.00p.m on some nights of the week after I had spent time with my family...”  She says that until 2002, “I would go home most nights” and would “only occasionally stay over with Mr Somers on a Friday night and then I would return home the next morning.” From 2002, she says she usually spent Friday nights with the Applicant at Property B, but rarely a second night. Between 2002-6 she estimates she would stay an average of 3 nights a month, and then less often after 2006. From mid-2007, when she moved to Property E in the same building as the Applicant, the Respondent says she saw the Applicant most days for a few minutes to an hour and would return to her own unit. She says it was her habit to see her mother, her sister, her son and other friends and to go for a swim.  She had her own routine quite separate from the Applicant. She deposes to eating a meal with the Applicant once or twice a week, often Thursday nights when she was not working on a Friday.  She says the Applicant used to drink to excess most nights, and as a result, during 2007, they had less frequent sexual intimacy, less than monthly by the end of 2007. It is common ground that the parties saw each other several times over many weekends. The Applicant’s counsel submits that the parties seeing each other “several times” on a weekend [18] is a strong indication of the parties living together.  The Respondent’s counsel submits that it means the opposite, because if they were living together they would have been together most of the time.  

   [18] At page 19 of Applicant’s submissions

5. I accept the Respondent’s evidence that overnight time did not become a routine from the commencement of their relationship because the Respondent had her children living with her at her mother’s home and she was responsible for their care. I accept that the Respondent was usually with the Applicant overnight on a Friday night, but also on more than one night a week at different times, from reasonably early in their relationship. Though I am unable to be more precise as to exactly when the regular overnights commenced, I am not persuaded the precise date is material.  I accept the Applicant’s evidence that their relationship, including their sexual relationship, was ongoing in 2007 when the Respondent decided to buy Property E in the same block as Property B, and that the parties were often together, including overnights in most weeks, and, as the Respondent acknowledges, the parties saw each other on most days from a few minutes to an hour.  I am not satisfied the relationship had weakened to the extent contended by the Respondent by 2007.  I find it material that the Respondent chose to buy a unit in the same block as the Applicant in that year. While their sex life might have deteriorated because of the Applicant’s drinking habits, on the Respondent’s own evidence they were seeing each other often, including several times on a weekend, and attending social events together. I accept the Respondent’s evidence that by 2009 she had 4 grandchildren with whom she was spending time, her daughter had moved to (omitted) and she was spending time there, and later in that year she moved out of Property E.  I find it likely that the parties did not see quite as much of each other by late 2009, but they were certainly still travelling and socialising as a couple. I am not persuaded that the Friday nights or other weekend nights were the usual routine from then until May 2011, when the Applicant moved to Property A.      

1. I am satisfied that the parties made the deliberate choice not to share a common residence before May 2011.  I accept the Applicant’s evidence that when they were first at Property B, his mother did not require him to live with her for her daily care, but later, in or about 2007/2008, he became his mother’s registered carer. Nevertheless, I do not accept even then that the Applicant’s mother required his daily presence for her care, because the Applicant spent substantial periods away from his home when on holidays, sometimes for weeks at a time, and his mother remained living alone. The Applicant’s brother Mr R said that the Applicant and his mother lived at Property B for mutual benefit, and confirmed that when the Applicant was away he (Mr R) did not have to move in to care for his mother, but was available to help when needed. Regular visits were enough. I am satisfied the Applicant could have lived with the Respondent and visited his mother as required, had the parties chosen to live together as a couple.  I find the Applicant made a decision to live with his mother and not to share a common residence with the Respondent. 

2. The Respondent’s brother in law confirmed that the Respondent’s mother did not need someone living with her full time when the Respondent left (omitted) in 2007.  I am satisfied the Respondent was not tied to (omitted) to care for her mother and, in 2007, chose to live independently.  She did not choose to live with the Applicant.  While I accept that the parties spent considerable time with each other, though I find the frequency reduced over the years, and I accept that they shared many holidays together, I am not satisfied they shared a common residence during that period.  In cross examination, the Applicant agreed that the Respondent said she could not live with him because she had to care for her children. He acknowledged that their arrangement to live independently of one another made good commercial and financial sense and worked for their families. 

May 2011 to March 2013

1. It is the Applicant’s case that the parties were living together as a couple at Property A from May 2011 to 1 April 2013 with the exception of 14 nights, though for the majority of the period they slept in separate rooms.  This is denied by the Respondent. She claims the parties’ relationship was not the same after January 2011, when the Respondent’s sister believed the Respondent had flirted with her husband Mr G on her 50^th birthday cruise and the Applicant then accused her of having an affair with Mr G. The Respondent says the allegation created a significant rift in her family, including the breakdown of her relationship with her only sibling Ms J. She says these allegations significantly impacted on her relationship with the Applicant.  She says that if her mother and the Applicant’s mother had not died in (omitted) 2011, she would probably not have spoken to the Applicant again. 

2. The parties agree that within a short time of the Applicant moving in to Property A, the parties slept in separate rooms and the Respondent wanted only occasional sex. The Applicant says they shared a room for the first couple of months, and then had separate rooms. The Applicant blamed the Respondent’s attitude on menopause and her difficulty sleeping. The Respondent agrees they had a sexual relationship in the early weeks, but the Applicant had a separate room. The Respondent’s cleaner deposed to her observations and understanding that the parties lived there separately.

3. The parties agree that the Respondent was spending lengthy periods in (omitted) from approximately the time she purchased a property there in late 2011.  The parties agree that between February 2012 and August 2012, the Respondent spent 129 days in (omitted), including 84 days between May and August 2012, the Respondent relying on her credit union records to work out the days she was in (omitted).  The Respondent spent 52 days in (omitted) from September 2012 to March 2013. The parties’ evidence differs as to how often the Applicant was also in (omitted). The Respondent contends she was in (omitted) without the Applicant with the exception of a few days.  As noted earlier, the Applicant claims he travelled with the Respondent, or travelled by plane or car to join her, much more often.  The Applicant adduces minimal corroborative evidence to support his position. His brother says he called into the Property A unit at times the Respondent was away in (omitted). As already noted, I find that the Applicant has exaggerated the amount of time he spent in (omitted). I find the Respondent was in (omitted) without the Applicant for the majority of the time she was there, though I am satisfied that the Applicant made a number of trips for 3-4 days, when his working commitments permitted.    

4. The parties are in dispute about the state of their relationship in May 2011 and the reasons the Applicant moved in with the Respondent at Property A. The Applicant contends that after his mother died in (omitted) 2011 he had a number of options in relation to his future living arrangements: he could not afford to buy another home but could have sold Property B and moved to rental accommodation; he could have retained Property B and paid two of his four brothers their entitlement to his mother’s estate (he says two brothers needed the money and two did not need money at the time); or he could have accepted the Respondent’s offer to live with her at Property A. The Applicant says he said to the Respondent, “is everything good between you and I?”[19] He says the Respondent replied, “yes, we are good as a couple” and “do you want to live near a fish and chip shop or somewhere else?” (I assume she was asking whether he wanted to live in a different property to the Property A property). The Applicant says that this question from the Respondent resulted in him choosing to sell Property B and live with the Respondent at the Property A unit, “or some other property we would purchase with the funds I was to receive from the Property B unit.”  He says the Respondent asked him to live with her before contracts were exchanged for the sale of Property B, and that the Respondent looked at houses, larger than the Property A unit after the Applicant’s mother died. Mr G says the Respondent had said to him that she would not be able to live with the Applicant until his mother died. He goes on to say that after the Applicant’s mother died, the Respondent said to him, “Mr Somers will be moving in with me and we will look to buy a house together around (omitted) or (omitted).” Mr G believed they looked at properties in that area.  I find it noteworthy that neither party says they looked at properties together at that point, and neither says they looked to buy a property “together” when the Applicant moved in or when he later received his inheritance.

   [19] At paragraph 44 of Applicant’s affidavit sworn on 29 May 2015

5. The Applicant says he believed there was a commitment for him to live with the Respondent into the future. The Applicant’s brother says that in the week following their mother dying, he had a conversation with the Applicant about him moving out of Property B.  He deposes to the Applicant saying “Look, no we’re clear on it. We’ve been waiting this for a long time” or words to that effect.  He thought “well, OK, you seem pretty sure.”[20]

   [20] At page 112 of 11 June 2015 transcript of proceedings

6. According to the Respondent, it was not her intention to live as a couple with the Applicant in May 2011. The Respondent says she felt sorry for the Applicant because he had asked his brothers whether he could receive an extra share of his mother’s estate because he had been looking after her, and they had refused. She was also very sad after her mother’s unexpected death. The Applicant did not move straight after his mother’s death, but she says she waited until contracts were exchanged for the sale of Property B. The Respondent says that in June 2011, the property would settle and the Applicant would have had nowhere to live. She says she invited the Applicant to stay pending the sale of his mother’s unit and the administration of his mother’s estate and partly for companionship. The Respondent’s sister gave evidence of conversations between her and the Respondent at the time of the Applicant moving to the Respondent’s home. She was told the Applicant had to sell Property B to give his brothers their share of their mother’s estate and the Respondent was critical of the brothers for this, referring to them as “vultures”. Counsel for the Respondent submits that the Respondent’s explanation for the Applicant moving in could not be said to be a ‘recent invention’ as claimed by the Applicant, given her conversation with her sister at that time. While the Respondent’s sister says that she and the Respondent inspected properties because the Respondent felt Property A was too small for her and the Applicant together given her family liked to visit, I am not satisfied this contradicts the Respondent’s stated intention.   

7. As already noted, the Applicant bought a property at Property C in early 2012.  It was tenanted until approximately July 2012.  He did not move into that property.  I accept the Applicant’s counsel submission that it cannot be said that the Applicant could not live in the Property C property[21], as he could not afford the mortgage without receiving rent. Counsel submits that before hearing, the Applicant lived in another apartment in Property C which he shared with a roommate. The Court should draw the inference that he could have lived in his own unit and shared with a room-mate.  It does not make sense that the Respondent wanted the Applicant to leave Property A, but encouraged him to buy a property he could not live in.

   [21] At paragraph 16 of Applicant’s submissions

8. I find it difficult to reconcile the Respondent’s assertion that the relationship was effectively over from early 2011, with her decision to invite the Applicant to live with her. However, I find that the Applicant’s question to the Respondent “is everything good between you and I?” supports the Respondent’s position that there were difficulties between them. I find the Respondent was supportive of them living together in her home, and that the Applicant could have made alternative arrangements had the Respondent had a different attitude. I find the Respondent did look at other properties at the time because of her decision to have the Applicant living with her and also because of her interest in the property market. I find it noteworthy that the Applicant was not involved in this activity. 

9. I am not persuaded that it flows from the Respondent’s decision to have the Applicant living there, that the Respondent was committing to living with the Applicant as a couple on a genuine domestic basis. The parties adduce minimal evidence of any discussions about their relationship before May 2011.  I find it unlikely the parties would not have had some discourse about a decision to start living together as a couple, particularly given the length of their relationship and the distress caused in January 2011. I find it possible that the Applicant had a different understanding of their arrangement.

10. As noted, I am satisfied the Respondent was not asking the Applicant to move out when he bought Property C in early 2012 because I find that she regarded the friendship as ongoing at that time. I am satisfied that the parties relationship changed during the period 2011-2013 and certainly that by late 2012, the relationship was over.  In November 2012, the Respondent told Ms K, “I need Mr Somers out of my unit.”  The Respondent says by that time she was convinced the relationship had ended.  The parties did not spend Christmas or New Year together in 2012 and were seeing little of each other. The Respondent was in (omitted) for Christmas 2012. 

Whether a sexual relationship exists

1. I have substantially addressed this aspect of the relationship. It is common ground that the parties’ sexual/romantic relationship started in (omitted) 1998 and that they had a monogamous sexual relationship, varying in strength from time to time.

2. The parties differ as to when the sexual relationship ceased, though it is not disputed that their sexual relationship declined in later years. The Respondent says that by 2011, they were intimate approximately 6 times in the first half of the year, and by mid-2011, their sexual relationship ceased altogether.  The Applicant estimates sexual activity occurred 15 times during that period.  He includes the time when the Respondent was renovating her Property A bathroom, and the parties spent two nights in a hotel together in 2011.  The Applicant says they shared a cabin on a cruise in (country omitted) in (omitted) 2011, though the Respondent says they had separate bunks on the cruise and had little to do with each other. Ms K, who was also on the cruise, corroborated the Respondent’s evidence as to the tension between them on that holiday.  

3. I am satisfied the parties had a sexual relationship from (omitted) 1998 until 2011/12, but that the intensity of their sexual relationship diminished as time went on and was occasional and intermittent, if it existed at all, from mid-2011.    

The degree of financial dependence or interdependence, and any arrangements for financial support, between them

1. It is common ground that both parties were employed until 2012.  Thereafter, the Applicant continued in employment.

2. It is the Respondent’s case that the parties were not financially dependent or interdependent.  From 1998 to May 2011, she says each paid their own outgoings, each met their own living expenses, and they used to take turns to pay for meals out together.  The Respondent says she met some costs for the Applicant in relation to holidays, but “where she paid a large amount for him, he repaid her”; for example, the (country omitted) holiday, the (omitted) motor vehicle. Neither contributed financially to the other’s family.

3. The Applicant does not challenge this evidence in any significant way.  He says he prepared meals for Respondent at times and used to purchase food for her without accounting for it, but agrees they kept their financial arrangements separate.  Neither party asserts that he/she was answerable to the other in terms of how they spent their own money and the Applicant acknowledged that neither party required the other to give permission for money to be spent on their children or grandchildren. By way of example, after her mother died, the Respondent gave her daughter $100,000 to assist her to purchase a home without reference to the Applicant.   

4. In (omitted) 1998, the Respondent owned a one third share in a property at (omitted) (the (omitted) property) with her sister and brother in law Ms J and Mr G (in which the Mr G’s were living) while the Respondent was living with her mother and her two children (then aged 13 and 15 years) in (omitted). Mr G confirmed that the Respondent purchased her share in the (omitted) property as an investment. The Applicant was renting with his mother and did not own a property at that time.

5. In (omitted) 1999, the Applicant purchased a property with his mother and the Respondent at Property B as tenants in common: the Applicant and his mother each held 40%, and the Respondent 20%. The Respondent deposes to borrowing $64,000 to pay for her 20% interest. The parties jointly borrowed funds secured by way of mortgage, later refinanced on two occasions to take advantage of a more favourable interest rate. The Respondent says she was looking to invest as she had done with her sister and brother in law at (omitted). It was her intention to accumulate capital funds by her investment “to improve my ability to achieve my long term goal of owning my own home.”[22] The Respondent acknowledges that she was also motivated by her wish for the Applicant and his mother to have a suitable place to live. She says she was committed to the relationship for the near future saying, “I don’t know that I meant forever…[the investment in Property B] was a medium term investment…5-7 years”.  I am satisfied that the Respondent bought her share in Property B as an investment which she hoped would achieve a profit.  In July 2007, the Respondent transferred her interest in Property B to the Applicant for $85,000.  While the Applicant’s counsel submits that the Respondent made no capital contribution to the purchase, and the $85,000 was provided to the Respondent simply because she wanted it, I am not persuaded the evidence supports that submission. It is the Respondent’s unchallenged evidence that she contributed $64,000 for her share and paid a third of the mortgage payments each month. I accept the Respondent’s counsel’s submission that this was a commercial transaction, based on the agreed market value of the property at that time.  She sold her interest to the Applicant in 2007 for $85,000.  As already noted, I am not persuaded there was any financial interdependence between the parties in relation to this transaction.    

   [22] At paragraph 38 of Respondent’s affidavit sworn on 11 May 2015

6. On 5 March 2007, the Respondent purchased Property B in her sole name and moved into that unit in late July 2007.  It is common ground that the Applicant made no financial contribution to that property or its maintenance.  

7. In (omitted) 2009, the Respondent received a redundancy payment from (employer omitted) after 21 years with the company, and in 2010 she spent approximately $20,000 on improvements to her Property A property without financial assistance from the Applicant.  When the parties lived at Property A after May 2011, it is common ground that the Respondent paid all the outgoings on that property without contribution from the Applicant, with the exception of the Foxtel account. These expenses included strata fees, rates and levies, utility bills and mortgage repayments.

8. Each party purchased a property when they were living at Property A:  the Respondent bought Property D in her sole name without contribution from the Applicant.  The Applicant bought Property C in his sole name without contribution from the Respondent. It is common ground that the Respondent accompanied the Applicant to see a loans officer with the (omitted) Credit Union in February 2012 and he was then granted the loan.  According to the Applicant, at the time the Respondent said, “Mr Somers has no expenses as he lives with me.” The Respondent says she still thought she and the Applicant were friends and accompanied him to the financier to help him obtain the loan for Property C.  She was able to confirm the Applicant’s advice on the application for the loan that he was not paying her rent or board, which assisted his application. The Applicant did not include the Respondent’s details/income on his application for finance for Property C. The Respondent denies it was bought as an investment property for both parties as suggested by the Applicant. She rejects the accuracy of the evidence of Mr M that she said to him in May 2012, “we have just bought our second unit at Property C”.   

9. When the Respondent purchased the property at Property D in 2012, the Applicant’s financial details were not included on her loan application.

10. It is not disputed that the Applicant paid no rent or board or accommodation expenses during his time at Property A.  However, on 28 June 2011 he deposited $100,000 into the Respondent’s mortgage offset account for nearly 6 months, to reduce her interest payments on the loan. On 15 September 2011, he deposited a further $45,000 to the Respondent’s mortgage offset account[23]. On 22 December 2011, the Respondent returned $120,000 to the Applicant.[24] In her affidavit, the Respondent deposes to being owed money by the Applicant for the bathroom renovations ($19,296), the hot water system, repairing sliding doors and transporting goods to (omitted). The Applicant says the $100,000 remained in the Respondent’s account until he withdrew $130,000 in late April 2012.  I find the Applicant’s evidence confused on this issue. He refers to a balance of $30,000 in the mortgage account which was used to renovate the bathroom and other minor items but does not explain whether this was part of the funds deposited. He refers to an amount of $130,000 being withdrawn without explaining its source. There is also an inconsistency in the Respondent’s evidence when she says he deposited $100,000 and later $25,000, rather than $45,000. I am not assisted by the provision of any bank statements. However, I am not persuaded anything of significance turns on these issues, because it is not disputed that the Respondent retained $25,000 from the amount deposited by the Applicant, with the consent of the Applicant. The Respondent deposes to the $25,000 being a contribution towards the cost of the bathroom renovations (which had cost over $19,000 and reimbursement of other expenses. She says the Applicant said to her[25], “I would not have the money if you didn’t help mum and I buy the house, I have been living here all this time, you should keep $25,000 to cover the cost of the bathroom and the other things.”  

    [23] At paragraph 133 of Respondent’s affidavit sworn on 11 May 2015

    [24] Ibid at paragraph 139

    [25] Ibid at paragraph 141

1. The Applicant’s counsel argues that the Applicant’s deposits to the Respondent’s offset account and his contribution to the bathroom renovations and other items for the home in the sum of $25,000 demonstrates a clear financial interdependence between the parties.  The Respondent’s counsel submits that the sum contributed by the Applicant equates to approximately the rental for the period he lived there, having regard to the Applicant’s rental at the time of hearing of $250 a week.

2. Having considered the financial arrangements outlined, I am not satisfied there is evidence of financial dependence or inter dependence between the parties. The parties bought two properties after May 2011, both of which might have been purchased in joint names but were not.  I am not persuaded that the evidence of Mr M supports a finding that the Property C property was an investment property for both parties.  In relation to the $25,000 retained by the Respondent, I agree with the Respondent counsel’s submission that given the Applicant paid no rent or board and did not contribute to the outgoings on the property during the 22 months he lived at Property A, it makes sense that the parties agreed that this was a reasonable payment. 

The ownership, use and acquisition of their property

1. I have nothing to add here except that I agree with the Respondent’s counsel’s submission that it is highly material that each party’s property purchased after May 2011, was not acquired jointly and the borrowings for those properties were not joint. 

The degree of mutual commitment to a shared life

1. It is not in dispute that the parties were in a romantic/sexual relationship from (omitted) 1998.  Neither party was in a marriage at that time though both had been previously married.  It is common ground that the parties socialised together, spent time with each other’s families and friends, travelled together on many occasions, and provided emotional support to one another.  The question of whether they were mutually committed to a shared life is in dispute. The Applicant contends that in certain respects they were, while the Respondent says they were always committed to keeping their lives separate.  She deposes to the parties having very different interests, to enjoying holidays separately as well as together, and to the Applicant not enjoying the company of many of her friends.   

2. In 1999, the Applicant bought the Respondent a diamond ring for approximately $1700 (although he gives two different figures for its cost) which he later had repaired for the Respondent at a cost of $845.  He deposes that, “there was no formal declaration that was an engagement ring nor was there a proposal of marriage” but he says “it was more than just a friendship ring.”[26] In or around 2000, the Respondent’s sister says the Respondent showed her a yellow gold ring with 5 diamonds in a line.  She asked if this meant she was engaged.  She says the Responded answered, “well, sort of, but we live with our mothers, so nothing’s going to happen until they’re gone.”[27] The Applicant relies on photographs to highlight the importance of the ring to the Respondent. I do not accept the Applicant’s counsel’s submission that the Respondent said that she wore the ring on her engagement finger until at least 2007. I do accept that the ring was on her engagement finger in a photograph taken in February 2007.[28] While I accept that the ring demonstrates the importance of the parties’ relationship at the time it was bought, I am not persuaded it demonstrates a mutual commitment to a shared life together.   

   [26] At paragraph 65 of Applicant’s affidavit sworn on 26 April 2015

   [27] At paragraph 73 of affidavit of Ms J sworn on 2 August 2014

   [28] Exhibit 10

3. In 1999/2000, the Respondent accompanied and supported the Applicant when he had vasectomy.  The parties do not agree on the content of their discussions leading up to the procedure.  I am not persuaded the Respondent’s support for the Applicant during the operation is probative.

4. The Respondent bought tickets for an event at the (omitted) for them both in 1999/2000.  Again, this would be expected of two people in a relationship.

5. I accept the Applicant’s evidence that at times during their relationship, they would speak to each other daily; at times he would cook the Respondent a meal and occasionally would take a meal to the Respondent’s mother.  Each party acknowledges having a key to the other’s unit when they were living in the same block of units in 2007-2009, though the Respondent says she never saw the Applicant use his key to Property E.  I am satisfied these facts demonstrate that the parties had a trusting, caring relationship.

6. The parties travelled overseas and domestically together.  The Respondent worked for (employer omitted) and was able to access (employer omitted) staff travel entitlements at the last minute, from time to time.  The Respondent nominated the Applicant for travel concessions at different times. The Applicant lists a number of shared holiday destinations overseas between 2000 and 2011 and domestic destinations, not seriously challenged by the Respondent except as to dates and times. His list includes (country omitted), (country omitted), (country omitted), (country omitted), and (country omitted), and an (omitted) cruise. (Holidays at times included a number of these destinations). The parties also travelled to (holidays omitted) on a number of occasions, (omitted) on a number of occasions, (country omitted) and (omitted) Victoria.    

7. The parties attended social events together for many years and were known to many family and friends as a couple. Their social life included the Respondent’s sister Ms J and her husband Mr G though those relationships largely broke down after the allegation concerning the Respondent and her sister’s husband in January 2011. Mr G says the Applicant and Respondent did not spend Christmases at their home after Christmas 2010.  Mr D used to visit the Applicant after 1998 a few times each year. He says the Respondent was present on occasions, not on others. He was aware they were not living together. In 2007, he and his wife travelled to (country omitted) with the Applicant and Respondent when they were living in Property E and Property B.  He says the parties did not talk about changing their living arrangements during that holiday. 

8. It is agreed that the parties had favourite restaurants and went out to meals together, at times every week.  The parties attended family and friends’ celebrations together from time to time, and on occasions sent and received cards as “Ms Collier and Mr Somers”. They attended a memorial for the (omitted) victims at (omitted) together.  

9. In 2008, the Applicant travelled with the Respondent to see her daughter after the birth of the Respondent’s first grandchild A.  The Applicant was the Respondent’s partner at her daughter’s wedding in (omitted) 2010. He once helped look after the Respondent’s grandchildren when she attended a family funeral with her daughter.  I am satisfied each party had a caring relationship with the other party’s mother, and though the Applicant says that by January 2011, the Respondent’s relationship with his mother had “cooled”, I accept that the Applicant visited the Respondent’s mother regularly in the weeks before she died as he was working at the (employer omitted), and reported progress to the Respondent and her sister. I am satisfied each party emotionally supported the other when both their mothers died within 2 weeks of each other, and during the administration of their estates during that year. I accept that after the Respondent purchased a property in Property D in late 2011/early 2012, the Applicant stayed there with the Respondent twice: on the June long weekend in 2012 when they participated in the (omitted) weekend and when they went to (country omitted) in the snow season Aug/Sept 2012.  On one occasion, the Applicant helped move some bricks for the Respondent.

10. The Respondent had an interest in property and attended open inspections, sometimes with the Applicant. Each sought the other’s opinion when deciding on the property purchases each made. The Applicant inspected both Property E, the Property A and Property D properties before the Respondent committed to those purchases, and the Respondent inspected Property B and Property C before the Applicant committed to those purchases.  In relation to Property D, the Respondent acknowledges that she telephoned the Applicant in late 2011, described the property and asked him to come to look at it.  She booked him a flight and collected him at the airport so he could inspect the property with her. The Applicant deposes to the parties discussing retiring to the (omitted) area. 

11. As already noted, the Applicant says that he believed the Respondent was committed to a future with him when she proposed he move to her Property A property, while the Respondent does not agree she was ever so committed.  However, the Respondent did organize and pay for a birthday party for the Applicant’s 56^th birthday at (omitted) on (omitted) 2011 and the Applicant went to (omitted) to spend time with the Respondent a number of times in 2011/12.  I am also satisfied that the parties discussed the bathroom renovations together and each spoke to the tradesmen and assisted in the preparations required for those improvements.  On the other hand, I accept the Applicant’s evidence   that when they were living in the same residence, “Ms Collier’s attitude changed substantially.”[29] She would not make room for his things or for his furniture and became increasingly irritable and unhappy.  He says that his sexual advances were regularly rejected which he put down to menopause. The Applicant also deposes to his relationship with the Respondent deteriorating in 2011/2.  For her part, the Respondent says that by the time the parties were on a cruise in (country omitted) in October 2011, their relationship was strained. The Applicant was drinking a lot. She spent 28 days in (omitted) in November/December 2011, and as noted, the Respondent spent significant time in (omitted) until the Applicant moved from Property A. 

    [29] At paragraph 61 of Applicant’s affidavit sworn on 26 April 2015

12. In May 2011, the Applicant told a friend, Ms K, when discussing the future, “I don’t have to worry, Ms Collier is going to look after me.”[30]  This concerned the Respondent who said, “my unit is not your unit and never will be. I am letting you stay. Any property I have is a result of my own efforts, money and sacrifice by my family.”  She says that a day or so later the Applicant apologised, “I don’t want your property. I am just happy to be able to stay here.”  In January 2012, in response to the Respondent asking him about his future plans, the Applicant said “I’m going to sponge off you.” The Applicant does not deny that he spoke of “sponging off” the Respondent, (as opposed to his counsel’s submission at page 14) but says any such comment was made in jest “as I know how possessive the Respondent is of her property.”[31] Two weeks later, with the support and assistance of the Respondent, the Applicant purchased the Property C unit. I accept that there is no evidence to suggest the Respondent asked the Applicant to move to that unit at that time.

    [30] At paragraph 17 of affidavit of Ms K sworn on 8 May 2015

    [31] At paragraph 56 of Applicant’s affidavit sworn on 29 May 2015

13. When the parties were both living at Property A, I accept the evidence of Ms J, who was a member of the Body Corporate, that it was the Respondent only who dealt with the strata management committee and it was the Respondent only who regularly attended meetings, even though there was often an opportunity for owners to socialise.  The Respondent contends that the Applicant gave her no assistance when there was a leak in the unit in late 2011.

14. When the Respondent asked the Applicant to leave in March 2013, he told her he would not leave empty handed. The Respondent says she offered to repay him the $25,000 he had agreed to leave in her account, but he said he wanted more than that and would seek legal advice. 

15. Neither party made provision for the other in a Will.  Neither named the other as a beneficiary of a superannuation or insurance policy. The Applicant said in cross examination that he did not think it “appropriate” to leave any assets to the Respondent.   

16. The Respondent’s counsel submits[32], “It is significant that the Applicant’s case is that the respondent was free to deal with her property in life, she was free to deal with her property in death, but she was not free to deal with her property if the relationship broke down.”   I agree with counsel that this suggests that the parties were leading separate lives and were entitled to deal with their assets as they saw fit. 

    [32] At paragraph 45 of Respondent’s submissions

17. I am not persuaded the evidence demonstrates that the parties had mutually committed to a future shared life together. I find that the parties had a mutually satisfying arrangement between them which involved them spending time together, accompanying each other to social events and holidaying together, and supporting each other during difficult times, in particular after their mothers died. While it may be that the Applicant hoped for a more lasting commitment from the Respondent at the time he moved to Property A, on his own evidence that did not happen.  Instead, after a positive few weeks which included his birthday party and sexual activity, the Respondent pulled back, insisting on him sleeping separately.  A few months later, she purchased her home in Property D and spent increasing amounts of time there. Nevertheless, she says she continued to regard the Applicant as a friend to share certain activities with her.

Whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship

1. The relationship has not been registered.

The care and support of children

1. The evidence on this issue is limited.  It is common ground that neither party was involved in the upbringing of the other’s children and neither contributed financially to their upbringing. While the Applicant deposes to having given the Respondent financial assistance to purchase a second hand car for her son, and to have spent $1200 on transporting much of his furniture to the Respondent’s daughter in (omitted), he does not suggest that he financially supported the Respondent’s children.

2. At the time the parties commenced their relationship in August 1998, the Applicant’s three children were spending time with him on alternate weekends from Friday to Saturday or Sunday. The Applicant deposes to the Respondent attending his son (hobby omitted) on occasions on a Saturday morning.  The Respondent did not take a step-mother role. The Respondent says that she did not regularly interact with the Applicant’s children.

3. In (omitted) 1998, the Respondent’s children were aged 15 and 12 years.  The Applicant agrees with the Respondent that the Applicant was not involved in her children’s day to day lives and did not spend regular time with them.  He did not take a step-father role. He did not transport the children, attend school functions, assist them with homework; he rarely attended the children’s birthday parties or special events. He did not contribute or help in relation to the events he did attend, and never bought the children a present. The Applicant deposes to providing the Respondent with advice and support in relation to her children.  For example, he suggested she pay for driving lessons for (omitted). He suggested she give her daughter money to buy a property which the Respondent did.  I agree with the Respondent’s counsel’s submission that the Applicant could not recall even the most basic details about the lives of the Respondent’s children and grandchildren.  

4. I am not satisfied these findings assist the Applicant’s case.

The reputation and public aspects of the relationship

1. It is common ground that neither party advised any government department/non-Government authority/third party that he/she was in a de facto relationship for any period between 1998 and 2013. The Respondent’s Health Insurance Certificate discloses her level of cover as “single”.[33] The Applicant is not included on the policy.  Neither party has stated he/she had a spouse on any taxation return lodged during the period 1998 – 2013.[34] While the Applicant’s explanation for the omission is that he was not claiming the Respondent as a dependent spouse as she earned a higher income, that is not the question on the document to be answered.  An income tax return requires a taxpayer to state whether or not they had a spouse (whether de facto or married) at any time during the relevant year, and whether or not the spouse was dependent.   

   [33] At Annexure to Applicant’s affidavit sworn on 11 May 2015

   [34] Exhibit 4

2. Neither party refers to the other as a “life partner, husband/wife, spouse” in any communications with any department of government or other authority. 

3. On 20 May 2007, the Applicant signed a claim for a Carer’s Allowance on the basis that he was his mother’s carer.[35] While he contends that he did not believe he was entitled and did not expect to be successful, he says that his mother insisted he make the claim, given he was caring for her. The Applicant says his mother completed the application. While Question 10 on the form gives options for the Applicant to disclose he is currently in a de facto relationship, the Applicant responds “divorced – 1990”. At Question 15, he omits the section for “your current partner”. The Applicant contends that neither he nor his mother knew what a de facto relationship was at the time. 

   [35] Exhibit 3

4. I find it noteworthy that at Question 31 of the forms, the Applicant states he is not currently in paid work when his affidavit evidence discloses his work pattern during the relationship period.  As earlier noted, he deposes to being employed during the whole of the relationship period. He does not include his Tax File Number on the form when he must have had a tax file number.[36] In the Review of the Carer’s Allowance[37] signed by the Applicant on 3 August 2007, again the Applicant states he is not working, contradicting his affidavit evidence. While the Applicant submits that his mother took responsibility for completing the claim form, this would be no defence to any action taken by Centrelink for giving false information.

   [36] Exhibit 4

   [37] Exhibit 3

5. The Respondent’s counsel submits that the fact that the Applicant’s mother did not regard the parties as a couple undermines any suggestion that the reputation and public aspects of the relationship are sufficient to ground a finding that the parties were in a de facto relationship during that period.

6. Mr G deposes to referring to the Applicant as his “brother-in-law”.  The Applicant’s friend, Mr M, says he assumed the parties were living together at Property B because he saw them at functions from time to time, though never visited the Applicant’s home.  When Mr M visited the Property A property in May 2012, he believed the parties were about to open champagne to celebrate the purchase of Property C, and assumed the home was “their unit”. He says that he has heard the Respondent refer to the Applicant as her partner.  Ms J, whose relationship with the Respondent has broken down and who was highly critical of the Respondent in her affidavit, deposed to the parties attending various family celebrations, including Christmas and a farewell function at the family home after the Respondent’s mother’s house was sold.  Ms J, who owned a unit opposite the Respondent in Property A, met the Applicant in 2011 in the stairwell outside the units introduced by the Respondent. She did not know the nature of the parties’ relationship and had never asked or been told. Later the Respondent told her the Applicant was making a claim against her property.  From being on the body corporate she knew the Respondent had, “invested a lot of hard work and her life in that property and I felt it was unfair for Mr Somers to be making a claim against Ms Collier’s hard work and – life efforts.” She rarely saw the parties together but rather saw them entering and exiting separately. Ms K was aware the parties were in a relationship between 1998 and 2013, occasionally socialized with them, and knew numerous details of the parties’ relationship including that the Applicant had bought the Respondent a ring, that the Respondent had bought a unit with the Applicant and his mother, that the Respondent had renovated her bathroom at Property A and that the Applicant had contributed to the cost. Ms K knew the parties had travelled together. She attended social functions with the parties, attended the Applicant’s mother’s funeral, the Applicant’s 56^th birthday party. She has sent cards to the parties addressed “Mr Somers and Ms Collier” and has received cards from “Mr Somers and Ms Collier”. The parties attended her mother’s 80^th birthday party and other family birthdays.  Ms H was the cleaner at Property E for approximately 2 years.  She says the Respondent did not speak about their relationship and from 1998 to 2011 she saw the parties together about twice a year.  She went to the Property A residence approximately twice and was aware the Applicant was living there. She did not know details of their financial arrangements.  

1. I am not persuaded the evidence of these witnesses assists the Applicant’s case.  These witnesses make observations consistent with findings I have already made.  The parties were important to one another. They were in a relationship for many years, engaged in sexual activity, took holidays together, spent some Christmas Days at one another’s families, attended celebrations together, provided emotional support to one another, and spent a period living in the same residence.   

Onus of Proof

1. As already noted, the onus is on the Applicant to prove the existence of a de facto relationship. The court must be satisfied that the parties, having regard to all the circumstances of their relationship, had a relationship as a couple living together on a genuine domestic basis between (omitted) 1998 and March 2013.

Determination

1. Having regard to all the circumstances of their relationship, the question is whether the parties had a relationship as a couple living together on a genuine domestic basis.

2. I have made findings under each statutory consideration and have considered all the circumstances of the parties’ relationship.  On a weighing of all these findings, I have concluded that the parties had a close personal relationship for many years which involved sexual activity, attending social events with family and friends, travelling together and providing each other with emotional support.  I have had careful regard to the parties’ financial arrangements, including the acquisition of Property B, the Applicant’s deposit to the Respondent’s offset account and the parties’ agreement for her to retain $25,000. I have also had careful regard to the circumstances of their common residence at the Property A unit.  Whilst the parties’ common residence from May 2011 may suggest that the parties had decided to live together as a couple by that time, I am not satisfied that the totality of the evidence of what occurred before and during that period of common residence supports such a finding.  

3. I agree with the Federal Court in Lynam that:

   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. 

   I also have regard to the decision of Murphy J in Jonah & White[38] when his Honour said[39]:

   [38] [2011] FamCA 221

   [39] At paragraph 60

   … It is the manifestation of ‘coupledom’ which involves the  merger of two lives …, that is the core of a de facto relationship as defined and to which each of the statutory factors (and others that might apply to a particular relationship) are directed.

   …

   [66]. The issue, as it seems to me, is the nature of the union rather than how it manifests itself in quantities of joint time.  It is the nature of the union – the merger of two individual lives into life as a couple- that lies at the heart of the statutory considerations and the non-exhaustive nature of them and, in turn, a finding that there is a “de facto relationship.” 

4. Having regard to my findings in relation to all the circumstances of the parties’ relationship, I have decided the parties have not been in a relationship as a couple living together on a genuine domestic basis at any time during the period (omitted) 1998 and March 2013. Given my decision, it is unnecessary for me to consider the requirements of s.90SB.

5. The application will be dismissed.  

I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of Judge Sexton

Date:  30 June 2016