Theodorou v Provatidis

[2022] SADC 16

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil)

THEODOROU v PROVATIDIS

[2022] SADC 16

Judgment of her Honour Judge Thomas  

16 February 2022

COURTS AND JUDGES - COURTS - JURISDICTION AND POWERS - EXCLUSION OF JURISDICTION

PROCEDURE - STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY - JURISDICTION - GENERALLY

FAMILY LAW AND CHILD WELFARE - THE FAMILY LAW ACT 1975 (CTH) AND RELATED LEGISLATION - JURISDICTION - DE FACTO RELATIONSHIPS - EXISTENCE OF RELATIONSHIP

This trial concerned the preliminary issue of this Court’s jurisdiction to determine the parties’ substantive claims as to their existing property and contractual rights arising from their financial dealings over the cutting, polishing and selling of opals since about August 1998.

The Respondent claimed the parties were in a de facto relationship within the meaning of s 4AA of the Family Law Act 1975 (Cth) between about August 1998 and 2015 and by reason of the existence of their de facto relationship this Court has no jurisdiction to hear this proceeding and it should be stayed permanently. Despite the alleged breakdown of a de facto relationship in 2015, the Respondent has not instituted a de facto financial cause under the Family Law Act 1975 (Cth) seeking any financial adjustment relief.

The Applicant denies the existence of a de facto relationship and disputes he ever lived with the Respondent, shared any of her homes on a domestic basis or had a sexual relationship with her.

Held:  

(1)The parties were not in a de facto relationship within the meaning of s 4AA of the Family Law Act 1975 (Cth). Accordingly, this Court has jurisdiction to hear the parties’ substantive claims in the proceeding as to their existing property and contractual rights.

(2)This Court has the authority and duty to determine whether this proceeding lies within the limits of its jurisdiction.

Family Law Act 1975 (Cth) s 4, s 4AA, s 39A, Part VIIIAB, s 90RC, s 90RD, s 90RF, s 90SB, s 90SK; Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth); Commonwealth Powers (De Facto Relationships) Act 2009 (SA), referred to.

Herford & Berke (No 2) [2019] FamCAFC 182; Lynam v Director-General of Social Security (1983) 52 ALR 128; Jonah & White [2012] FamCAFC 200; R v Federal Court of Australia; Ex parte WA National Football League (1979) 143 CLR 190; R v Ross-Jones; Ex parte Green (1984) 156 CLR 185; Sinclair & Whittaker [2013] FamCAFC 129; Taisha v Peng (2012) 296 FLR 350, applied.

Cadman & Hallett [2014] FLC 93-603; Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; Jonah v White [2011] FamLR 460; Keene v Scofield (No. 2) [2013] FCCA 1107; Onslow v Onslow [2016] FamCAFC 7; R v Fulham, Hammersmith and Kensington Rent Tribunal; Ex parte Zerek [1951] 2 KB 1; Shelley & Markhov [2012] FCWA 68, considered.

THEODOROU v PROVATIDIS
[2022] SADC 16

Civil

OVERVIEW

1. The trial in this proceeding concerned the preliminary issue of this Court’s jurisdiction to determine the parties’ substantive claims as to their existing property and contractual rights arising from their financial dealings over the cutting, polishing and selling of opals since about August 1998. 

2. At the heart of the jurisdictional challenge in this matter is a bitter dispute between the parties as to the existence between them of a de facto relationship within the meaning of the statutory test in section 4AA of the Family Law Act 1975 (Cth) (the Family Law Act).  This section provides the meaning of a de facto relationship and the circumstances relevant to working out if persons have a relationship as a couple.

3. It is clear that the Family Law Act and the cross-vesting legislation do not confer jurisdiction on this Court to determine financial adjustment between parties to a de facto relationship where all the jurisdictional requirements to apply for relief under the Family Law Act are satisfied.  This is because, with effect from 1 July 2010 in South Australia, and consequent upon the referral of power to the Commonwealth by all States other than Western Australia, amendments[1] to the Family Law Act operate as code for the financial adjustment between parties to de facto relationships when the relationship breaks down in South Australia and exclude jurisdiction under State legislation where all the jurisdictional requirements for relief under the Family Law Act are satisfied.[2] 

   [1]    Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) and the Commonwealth Powers (De Facto Relationships) Act 2009 (SA).

   [2]    Family Law Act, ss 39A [Jurisdiction in de facto financial causes], 90RC [Relationship with State and Territory laws], 90SB [When this Division applies – length of relationship etc] and 90SK [Geographical requirement].

4. It is also clear that this Court has jurisdiction to determine this proceeding in the absence of there being a qualifying de facto relationship under the Family Law Act.

5. In this case, it is common ground that there was a relationship between the Applicant, Mr Theodorou, and the Respondent, Ms Provatidis, from about August 1998 when they began working with one another cutting and polishing opals and later became long-standing business associates selling opals until 2015, when their relationship broke down irretrievably.  Since both parties were ordinarily resident in South Australia during their relationship,[3] there is no child of the relationship nor was the relationship ever registered under a prescribed law of a State or Territory, the issue is whether there was a de facto relationship between the parties for a period of at least two years.[4]

   [3]    That is, the geographical requirement provided by s 90SK(1A).

   [4]    As required by s 90SB.

6. The parties’ positions are diametrically opposed as to the true nature and character of their relationship. 

7. Ms Provatidis contends their relationship was so much more than a business relationship.  She claims that she and Mr Theodorou lived together in a domestic partnership for approximately 17 years, for the most part sharing a common residence, spending every day and night together (except over summer and when she was away on sales trips), and in each other’s company at least 22-24 hours a day.  During the day, they worked together cutting, polishing and selling opals.  She claims she cooked, washed and ironed for him.  She shopped for groceries and maintained their working and home environments.  They had a sexual relationship she described as violent, abusive and non-consensual.  He poured alcoholic drinks for her and insisted she drink large quantities of alcohol, so she was intoxicated when having sex with him, and passed out so she could hardly remember.  Mr Theodorou was manipulative and controlling and she believed and did everything he said. They socialised in the Greek community of Coober Pedy and were publicly known as both business partners and as a couple. Their breakup became very public in Coober Pedy.

8. Mr Theodorou denies he ever had a sexual relationship or lived with Ms Provatidis.  He claims he has exclusively cohabited with his wife of 50 years and resided with her in their family homes in Coober Pedy and Whyalla since they married.  His only relationship with Ms Provatidis was a business relationship, which he ultimately conceded involved a friendship.

9. Despite their relationship breaking down over six years ago, and this proceeding commencing in December 2017, Ms Provatidis has not instituted a de facto financial cause under the Family Law Act to seek any financial adjustment relief under Part VIIIAB of the Act, nor proposes to do so as currently advised.  Even so, Ms Provatidis contends this proceeding is beyond the jurisdiction of this Court by reason of the existence of a de facto relationship and should be stayed permanently.[5]     

   [5]    Respondent’s Outline (FDN 60) [62];  T56.5-.13.

   CONCLUSION

10. On the evidence, I am satisfied that the parties were not in a de facto relationship within the meaning of s 4AA of the Family Law Act.  Accordingly, this Court has jurisdiction to hear the parties’ substantive claims made in this proceeding as to their existing property and contractual rights.  My reasons follow.

    PROCEDURAL BACKGROUND

    “domestic partnership”

11. In his Amended Statement of Claim, Mr Theodorou claims against Ms Provatidis orders for an account of profits, delivery up and damages of $245,569.20 for the wrongful detention of opals and jewellery delivered to Ms Provatidis for sale on consignment, relying on causes of action in detinue, conversion and contract.[6]  

    [6]    FDN 6 dated 26 June 2018.

12. In her Third Defence and Second Counterclaim, Ms Provatidis challenges the jurisdiction of this Court to hear this proceeding, alleging the parties lived together in a “domestic partnership” as defined in s 4AA of the Family Law Act from 1999 to 2015. [7]   She otherwise denies Mr Theodorou’s claims in full, claiming she returned the residual stock she had with a cheque for $656 (which is all she admits she owed).  She counterclaims $286,000 for polishing work undertaken for Mr Theodorou and $49,690.69 for payments she made on his behalf. 

    [7]    FDN 19 dated 6 September 2019, [1].

13. By way of an interlocutory application made in September 2020,[8] Mr Theodorou sought orders that the trial of these proceedings proceed by way of separate trials of the issues of the “domestic partnership” raised in the Third Defence and Second Counterclaim and whether Ms Provatidis has returned the residual stock and the cheque as she claims.  In November 2020, I ordered the trial proceed by way of separate trials of separate issues and ordered a preliminary trial on only the jurisdictional issue raised by Ms Provatidis’ pleadings.  I set a timetable directing Mr Theodorou to provide a written outline of the relevant legal principles and file his written evidence by way of a sworn affidavit before hers.  I did this to assist Ms Provatidis understand the nature of the matters in issue because she was then unrepresented.  Ms Provatidis elected to file her evidence-in-chief by way of sworn affidavit. 

    [8]    FDN 29.

14. The trial was adjourned on the first day of hearing on 1 February 2021 and recommenced on 30 April 2021 for reasons that are not presently relevant.  By this stage, both parties were represented by experienced solicitors and counsel and before any further evidence was heard, a number of matters were raised that bear upon the determination of the jurisdictional issue.

15. The first matter was the proper formulation of the preliminary question.  The words “domestic partnership” do not form any part of the statutory test for a de facto relationship under s 4AA of the Family Law Act.  The formulation of the preliminary issue to be determined repeated the words used in the Third Defence and Second Counterclaim.  Neither party was caught by surprise.[9] Both had addressed in their written evidence and outlines of argument the correct formulation of the issue as to the existence of a de facto relationship as defined in s 4AA of the Family Law Act.  The trial proceeded on this basis.

    [9]    T38.17-39.10.

    Determination of a Jurisdictional Fact

16. In argument (whilst not contending for disposal of the preliminary issue on this basis), counsel for Ms Provatidis submitted that there was a live question as to whether this Court has the jurisdiction to determine that there never has been a de facto relationship between the parties.[10]  It was submitted this question arises because the jurisdiction conferred under Part VIIIAB of the Family Law Act (financial matters relating to de facto relationships) does not appear to depend on it first being established that there was a de facto relationship but arises upon a party alleging there is a de facto relationship and applying for certain relief. Further, it was suggested that the combined effect of ss 90RF (permission for parties to primary proceedings to apply for a declaration as to the existence of a de facto relationship under s 90RD), 4AA (definition of de facto relationship) and 90RC (relationship with State and Territory laws) was effectively to exclude this Court’s jurisdiction to determine its own jurisdiction.

    [10] Outline [7].

17. I reject those submissions.

18. The issue as to the existence of a de facto relationship between the parties is plainly a jurisdictional issue.  For courts invested with jurisdiction under the Family Law Act, jurisdiction is only enlivened on satisfaction of the relevant jurisdictional fact that the parties are in a de facto relationship (putting aside other jurisdictional requirements):[11]

    Determination of the question of whether there is a de facto relationship (which can be seen to involve a “complex of elements”) enlivens the power of the court to exercise the discretion to grant the remedies in the [Family Law] Act which depend upon that fact.[12] 

    [11]  Jonah v White [2011] FamLR 460 per Murphy J at [37]-[39] citing the High Court in Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 148.

    [12] Ibid at [40].

19. Contrary to Ms Provatidis’ submission, as can be seen from the text of section 90RC of the Family Law Act reproduced below, it addresses the question of the exclusion of State and Territory laws, not the jurisdiction of courts to apply “de facto financial provisions”:[13]

    State and Territory laws do not apply to financial matters

    (2)   Parliament intends that the de facto financial provisions are to apply to the exclusion of any law of a State or Territory to the extent that the law:

    (a)deals with financial matters[14] relating to the parties to de facto relationships arising out of the breakdown of those de facto relationships; and

    (b)deals with those matters by referring expressly to de facto relationships (regardless of how the State or Territory law describes those relationships).[15]

    [13] As defined in ss 90RC(1) and includes the provisions in Part VIIIAB of the Family Law Act.

    [14] “Financial matters” are defined in s 4 as presently relevant as follows:

    “(b)     in relation to the parties to a de facto relationship–any or all of the following matters:

    (i)    the maintenance of one of the parties;

    (ii)    the distribution of the property of the parties or of either of them;         

    (iii)   the distribution of any other financial resources of the parties or of either of them.”

    In s 4, “distribute” is defined to mean as presently relevant:

    “(a)     in relation to:

    (i)     property, and financial resources, of the parties to a de facto relationship or either of them;”

    [15] Emphasis supplied.

20. It is s 39A of the Family Law Act that confers jurisdiction in de facto financial causes on specified courts (for example, the Family Court or Federal Circuit Court) excluding this Court[16] and provides that a “de facto financial cause” can only be instituted under the Family Law Act. Section 39A(5) provides as follows.

    Proceedings only to be instituted under this Act

    (5)   A de facto financial cause that may be instituted under this Act must not, after the commencement of this section, be instituted otherwise than under this Act.

    [16] For completeness, I repeat that the cross-vesting legislation does not invest this Court with jurisdiction of the Family Court, unlike the Supreme Court of South Australia.

21. A “de facto financial cause” as presently relevant is defined in s 4 to mean:

    (c)   proceedings between the parties to a de facto relationship with respect to the distribution, after the breakdown of the de facto relationship, of the property of the parties or either of them; or

    …

    (g)   any other proceedings (including proceedings with respect to the enforcement of a decree or the service of process) in relation to concurrent, pending or completed proceedings of a kind referred to in any of the preceding paragraphs.

22. In this case, unlike many others, there are no concurrent, pending or completed proceedings, so subparagraph (g) is not relevant.  Accordingly, in the case of courts invested with jurisdiction under the Family Law Act, the key jurisdictional fact common to the operation of ss 39A and 90RC is the existence of a de facto relationship between the parties.

23. As I have said, conversely, in this Court, if there is no de facto relationship between the parties to this proceeding, this Court’s jurisdiction to determine their substantive claims as to their property and contractual rights is not excluded by the Family Law Act.

24. Therefore, as authoritatively stated by the Honourable Chief Justice of the High Court in R vRoss-Jones; Ex parte Green,[17] it is clear law that every court of limited jurisdiction has the authority and duty to decide whether the controversy brought before it lies within the limits of its jurisdiction.  Citing his earlier judgment in R v Federal Court of Australia: Ex parte WA National Football League,[18] his Honour referred to the following explanation in R v Fulham, Hammersmith and Kensington Rent Tribunal; Ex parte Zerek, as clear:[19]

    The fact that a person whose conduct is said to be regulated by s. 45 of the Act is a trading corporation within s. 51 (xx.) of the Constitution is a condition of the jurisdiction of the Federal Court in a case such as the present. If that were not so, the investiture of jurisdiction on that Court would be pro tanto invalid. In the present case the question whether the prosecutors are trading corporations is therefore a jurisdictional, preliminary or collateral fact which this Court must decide for itself on an application for prohibition.

    Of course it does not follow that the Federal Court would have had no power to decide whether the prosecutors were trading corporations. If the proceedings in the Federal Court had not been interrupted by the present application for prohibition, that Court would have been obliged to decide that question for the purpose of determining whether it had jurisdiction. When the question is raised before a court of limited jurisdiction whether a condition of its jurisdiction has been satisfied, that court is not obliged immediately to refrain from proceeding further. It can and should decide whether the condition is satisfied and whether it has jurisdiction to proceed, but its decision is not conclusive.

    [17] (1984) 156 CLR 185 at 193.

    [18] (1979) 143 CLR 190 at 215. Emphasis supplied.

    [19] [1951] 2 KB 1 per Devlin J at 10.

25. This fundamental principle is not abrogated by the conferral of power on a court invested with jurisdiction under the Family Law Act to make declarations about the non-existence of a de facto relationship under s 90RD of the Family Law Act.[20]  First, there is only a conferral of power to do so if an application is made for orders for maintenance or alteration of property interests under the relevant provisions of the Family Law Act and supported by a claim as to the existence of a de facto relationship for the “purposes of those proceedings”, being the application for financial adjustment under the Family Law Act.  Secondly, this section reflects the court’s power to determine its own jurisdiction, and expressly confers power to make declarations as to when matters are beyond jurisdiction.  Thirdly, this section does not address the exclusion of the jurisdiction of other courts such as this Court where a de facto relationship never existed for the purposes of other proceedings.  Nor does this section exclusively reserve the determination of the non-existence of the relevant jurisdictional issue to courts invested with jurisdiction under the Family Law Act. Contextually read, s 90RD does not expand the operation of s 39A.

    [20] 90RD  Declarations about existence of de facto relationships

    (1)If:

    (a)an application is made for an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL; and

    (b)a claim is made, in support of the application, that a de facto relationship existed between the applicant and another person;

    the court may, for the purposes of those proceedings (the primary proceedings), declare that a de facto relationship existed, or never existed, between those 2 persons.

    (2)A declaration under subsection (1) of the existence of a de facto relationship may also declare any or all of the following:

    (a)the period, or periods, of the de facto relationship for the purposes of paragraph 90SB(a);

    (b)whether there is a child of the de facto relationship;

    (c)whether one of the parties to the de facto relationship made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c);

    (d)when the de facto relationship ended;

    (e)where each of the parties to the de facto relationship was ordinarily resident during the de facto relationship.

    “de facto financial cause”

1. A further matter raised with counsel for the parties was whether it was necessary to determine the factual question as to the existence of a de facto relationship between the parties in this case where the disputes concerned the antecedent question of the parties’ existing general law property rights and as such did not constitute a “de facto financial cause” as defined by s 4 of the Family Court Act, regardless of whether there was in fact a de facto relationship between the parties. 

2. As I have said, this Court’s jurisdiction to hear this proceeding is only excluded by the operation of s 39A(5) of the Family Law Act if it is a “de facto financial cause” under the Family Law Act.  That is,  a proceeding with respect to the “distribution” of the property of the parties to a de facto relationship or either of them.  Although the existence of a de facto relationship is a necessary precondition to jurisdiction under the Family Law Act, in my view its existence may not of itself be sufficient to exclude this Court’s jurisdiction, particularly in the absence of concurrent, pending or completed proceedings as referred to in sub‑s (g) of the s 4 definition of a “de facto financial cause”.  Arguably, this Court has jurisdiction to determine antecedent questions as to the existing general law property rights of parties to a de facto relationship because such questions do not involve any “distribution” in the relevant sense.  

3. Counsel for Ms Provatidis rightly submitted that this was not the preliminary issue formulated for trial the parties had prepared for and, if I were to find a de facto relationship did not exist, it would not be necessary to consider that issue.[21] Unsurprisingly, given Mr Theodorou’s position that there was no de facto relationship as defined by s 4AA of the Family Court Act, his counsel agreed and pressed for determination of the issue as to the existence of a de facto relationship.

   [21]   T68.32-.35.

4. Ultimately, given my conclusion that there was no de facto relationship between the parties, there is plainly no “de facto financial cause” excluding this Court’s jurisdiction to hear this proceeding.  It was therefore unnecessary to resolve the question I raised with counsel.

   Onus of Proof

5. In a de facto financial cause brought under the Family Law Act, there is clear authority that the onus of proof is on the party asserting the existence of a de facto relationship as a jurisdictional fact to positively prove the existence of the defining characteristics of the relationship on the balance of probabilities.  It is not for the party denying the existence of a de facto relationship to prove the negative.[22] 

   [22]  Shelley & Markhov [2012] FCWA 68 at [7]; Keene v Scofield (No. 2) [2013] FCCA 1107 per Judge Brown at [49]-51].

6. Here, to decide this Court has jurisdiction to determine this proceeding, I must be satisfied that there was not a de facto relationship between the parties.  The jurisdictional challenge is raised by positive allegations of fact made in Ms Provatidis’ defence.  Mr Theodorou’s counsel submitted that Ms Provatidis had the onus of proof on the basis that “he who alleges, must prove” and invariably should be dux litus and address first so that the basis of challenge to the jurisdiction is clear.[23]

   [23]  T411.23-.33.

7. Ultimately, on the evidence, the outcome in this case does not turn on who has the onus of proof, legal or evidentiary. For the reasons that follow, the evidence of the nature and character of the parties’ relationship overwhelmingly supported the conclusion that there was not a de facto relationship between the parties as defined in s 4AA of the Family Law Act.  This was not a case where Ms Provatidis has merely failed to positively prove the existence of the defining characteristics of the relationship on the balance of probabilities.

   EXISTENCE OF A DE FACTO RELATIONSHIP

   Relevant Legal Principles

8. The statutory definition of a de facto relationship is set out in s 4AA of the Family Law Act.  The “mandatory” requirements[24] are provided in s 4AA(1) 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).

   [24]  Taisha v Peng (2012) 296 FLR 350 per Cronin J at [9].

9. In this case, since the parties are not married to one another and have never been so and they are not related by family, the dispute is as to the true circumstances of their relationship and the touchstone or foundational fact establishing jurisdiction is whether the parties were “a couple living together on a genuine domestic basis” at the relevant time.[25]

   [25]  Herford & Berke (No 2) [2019] FamCAFC 182 per Ainslie-Wallace, Ryan & Aldridge JJ at [10].

10. Section 4AA(2) provides a non-exhaustive list of the circumstances that may indicate the existence of a de facto relationship and are a guide only for the purposes of determining whether in the circumstances of a particular case, there is a de facto relationship within the meaning of s 4AA(1).[26]

    [26] Ibid.

    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 any 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 aspect of the relationship.

11. Section 4AA(3) expressly provides that no particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the de facto relationship exists. Section 4AA(4) provides that a court in 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.”  Accordingly, it is well accepted that none of the circumstances referred to in s 4AA(2) is determinative or has precedence over any other, nor must all or any necessarily be found to find a de facto relationship exists.

12. Therefore, as stated by the Full Court of the Family Court of Australia in Sinclair & Whittaker,[27] whether or not a de facto relationship exists will depend upon an assessment of all the circumstances of the relationship found.  Each is to be given the weight the court thinks appropriate.   It is the composite picture that is important, which is a question of fact and degree in the particular circumstances of each case given 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.”[28]The importance of this principle was reiterated again by the Full Court of the Family Court of Australia in Herford & Berke (No 2).[29]

    [27] [2013] FamCAFC 129 per Bryant CJ, Thackray and Aldridge JJ at [54]. Sinclair has been followed by subsequent Full Courts (Cadman & Hallett [2014] FLC 93-603; Onslow v Onslow [2016] FamCAFC 7; Herford & Berke op cit).

    [28]  Lynam v Director-General of Social Security (1983) 52 ALR 128 at 131.

    [29] Op cit at [12].

13. Section 4AA(5)(b) relevantly provides that for the purposes of the Family Law Act, a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship. Although s 4AA(1) is expressed as subject to s 4AA(5), contextually read this does not mean that it is subordinate and, in this case, should be read through the prism of s 4AA(5)(b). In Jonah & White the Full Court of the Family Court of Australia explained the interrelationship between these sub-sections as follows:[30]

    The effect of sub-s (5) on the determination of whether parties have a relationship as a couple living together on a genuine domestic basis is to import into it the understanding that a person can (as the authority of Green v Green (1989) 17 NSWLR 343 demonstrates) maintain two simultaneous relationships. That one of the parties asserted to have been in the de facto relationship was, at the same time, in another relationship, whether de facto or married, is a matter to be taken into account when considering the circumstances of the relationship and the indicia in s 4AA(2)…

    [30] [2012] FamCAFC 200 per May, Strickland & Ainslie-Wallace JJ at [36].

14. In submissions, Mr Theodorou’s counsel referred to the concept of “coupledom” and its manifestations involving the merger of two lives as key in determining whether a de facto relationship exists.  These phrases emerged from the decision of Murphy J in Jonah v White.[31] As the Full Court of the Family Court of Australia has reiterated a number of times since first saying so in Sinclair & Whittaker,[32] the Full Court in Jonah & White[33] whilst dismissing the appeal against Murphy J’s decision did not disagree with his statements of principle but did not apply anything other than the statutory test.  It is important to bear in mind that comments made in the course of discussing facts are not to be elevated to the status of statutory provisions or substituted for the statutory test.  Indeed:

    This is because, taken on their own, they either add nothing to the statutory test, or if they do, they are adding an impermissible gloss.  This it is not appropriate to consider the facts other than in light of the statutory test.[34]

    [31] [2011] FamLR 460.

    [32]  Op cit; see Herford & Berke (No 2) op cit at [14]-[18].

    [33]  Op cit.

    [34]  Sinclair & Whittaker op cit at [94].

    The Hearing and the Evidence

15. The hearing of the trial took place over five days.[35]  In November 2020, it was listed for hearing on 1 February 2021, allowing one day. Because Ms  Provatidis was unrepresented at the time the trial was listed, I made procedural orders for the  parties to provide their evidence-in-chief primarily in writing. 

    [35]  1 February, 30 April, 3 May, 7 May and 10 May

16. On the first day of trial, Ms Provatidis had not complied with the pre-trial orders for the filing and service of any affidavits and did not attend, having emailed a sick certificate to the Registry late in the preceding week without making any application for an adjournment.  Despite Mr Theodorou’s counsel pressing for me to proceed with the trial, I adjourned it part-heard to 19 April 2021 to give Ms Provatidis a further opportunity to participate.  

17. Before the trial resumed, Ms Provatidis instructed new solicitors and counsel, and the matter was brought on for directions.  I adjourned the trial again to 30 April 2021 and made orders giving Ms Provatidis further time to put on her affidavit material.  An affidavit was filed and served on 26 March 2021, and then on the days before the trial resumed, three further affidavits were served.  At trial, Ms Provatidis relied on her two affidavits prepared for trial as her evidence-in-chief,[36] two of her affidavits prepared earlier in the proceeding[37] and an affidavit sworn by her mother, Mrs Sophia Provatidis, prepared for trial.[38]   The affidavit of Ms Teresa Wagner prepared for trial was ultimately not tendered because the witness was not made available for cross-examination.[39]

    [36]  Exhibit R5 sworn on 26 March 2019 (FDN 57) and Exhibit R6 sworn on 29 April 2021 (FDN 64).

    [37]  Exhibit R3 sworn on 23 May 2019 (FDN 18) and Exhibit R4 sworn on 23 September 2019 (FDN 34).

    [38]  Exhibit R16 sworn on 29 April 2021 (FDN 65).

    [39]  T 220.1-.20.

18. Mr Theodorou’s evidence-in-chief was partly in writing and partly oral.  He relied on his affidavit sworn on 20 January 2021.[40]  His written evidence was brief and comprised primarily denials of the bare allegations of fact made in Ms Provatidis’ Third Defence and Second Counterclaim and deposed to his marriage and cohabitation with his wife and their now adult children.  As a matter of fairness, I permitted him to call oral evidence from his wife, Mrs Ptolemias (Litsa) Theodorou (assisted by an interpreter) and his eldest daughter, Ms Penny Archer (née Theodorou) (Penny), in circumstances where he had very late notice of the factual matters relied on by Ms Provatidis in support of her contention their relationship was a de facto relationship within the meaning of s 4AA of the Family Law Act.   

    [40]  FDN 42.

    The Parties as Witnesses Generally

19. The parties were the key witnesses. As I have said, their evidence as to the true circumstances of their relationship diverged starkly.  On the central issues of their shared living and working arrangements and whether they had a sexual relationship, the parties’ families were clearly important witnesses as to the nature and extent the parties maintained some form of common residence and lived together as a couple on a genuine domestic basis.

20. On issues where only the parties knew the objective truth, the only rational explanation for the divergence in their evidence is that one of the parties was not telling the truth or was in some way very mistaken, bearing in mind the bitterness of what was such a personal dispute has coloured their views of one another.

21. I have therefore scrutinised the evidence of all the witnesses carefully. Overall, while neither of the parties was an entirely satisfactory witness, I had more serious difficulties with Ms Provatidis’ evidence. I elaborate on my reasons below.  Before I do, I make comment on two matters concerning my approach to the evidence of the witnesses in assessing their reliability.

22. First, Ms Provatidis’ counsel suggested to Mr Theodorou that he and his family had carefully constructed their version of events over the last three years to work out their story.  Mr Theodorou denied it was a story and not the truth.[41] 

    [41]  T414.17-.22.

23. Having considered all the evidence, I do not accept that Mr Theodorou or his family carefully constructed a story for the purposes of their evidence.   Their evidence was, as a whole, coherent and credible.  Their evidence was not word perfect, as was self-evident by their different English language capabilities and the different perspective each brought in recounting events in their family life over the last 20 years or so.  In my experience, where witnesses are honest and reliable, substantial similarities in their accounts are to be expected.

24. The second matter arose from Ms Provatidis’ counsel anticipating the difficulties arising from the obvious inconsistencies in her written evidence. Ms Provatidis deposed in her second trial affidavit that she had been diagnosed with post-traumatic stress disorder by a psychiatry registrar at the Coober Pedy hospital, Dr Callum Deakin.  She deposed to her ongoing trauma and stress contributing to her making mistakes and having lapses in her day-to-day functioning and difficulty in concentrating.  She said she had done her best to respond but finds dealing with this matter difficult.[42]

    [42] Exhibit R6 [58].

25. Dr Deakin’s report[43] comprised a short letter in which he expressed his opinion in the form of an impression after one session based on self-reports of her background and history, which he assumed were true.  I have no information about his qualifications and expertise other than his title description.  Accordingly, I have placed little weight on Dr Deakin’s report as expressing an expert psychiatric opinion that excuses Ms Provatidis’ unreliability as a witness of truth. 

    [43]  Exhibit A12.

26. Finally, her counsel submitted in closing that should I be inclined to disbelieve any of her evidence as literal statements of fact, I should accept her evidence as statements of her emotional reality because of the impact of her relationship with Mr Theodorou.  For example, I should accept that she feels like it was a 22 to 24-hour-a-day relationship, if I did not think she was merely exaggerating.[44]          I do not accept Ms Provatidis’ emotional state excuses or explains the difficulties I had accepting her evidence as honest or reliable overall.

    [44]  T434.21-.34.

    Mr Theodorou

27. So far as Mr Theodorou is concerned, I had no difficulty in accepting the truthfulness and reliability of most of his evidence.  A substantial proportion of his evidence was consistent with the evidence given by his wife and eldest daughter about the detail of their living and domestic arrangements and not seriously challenged by Ms Provatidis’ evidence. 

28. I did, however, have a concern with his initial denial that his relationship with Ms Provatidis was more than a business relationship in light of his ultimate acknowledgement that there was a past friendship as well.  Considering the written evidence was bare and expressed in the language of a solicitor for a deponent whose second language is English, I placed greater weight on Mr Theodorou’s oral evidence than his written. I formed the impression his evidence reflected his reticence in discussing such personal matters publicly and his bitterness about the breakdown in their business relationship that he says has involved the loss of his opals being his life’s work. 

29. I found his admission in cross-examination that there was a friendship with Ms  Provatidis a truthful characterisation of their relationship on all the evidence[45] and have formed my own view based on the evidence as a whole.

    [45]  T344.21.-28.

30. Ms Provatidis’ counsel submitted that there was a fundamental dishonesty in Mr Theodorou’s refusal in cross-examination to admit to any kind of emotional connection with Ms Provatidis and for that reason I should prefer her account over his.[46] In my view, this submission overstates the difficulty I found with Mr Theodorou’s written evidence and, in particular, the significance of two text messages he sent Ms Provatidis which are addressed below.[47] As I have said, Mr Theodorou eventually admitted their relationship involved a friendship. 

    [46]  T424.20-.24.

    [47]  See below at [151]-[157].

    Ms Michelle Provatidis

31. My first concern was with Ms Provatidis’ written evidence. There were significant inconsistencies between her two trial affidavits, substantially comprising her written evidence, and an affidavit she had made to police in 2018 (her police affidavit).[48]  The first trial affidavit[49] contained largely generalised conclusionary statements under headings apparently taken from s 4AA(2) of the Family Law Act.  The second trial affidavit[50] set out her written evidence in chronological order and was in material respects inconsistent where it then qualified previously unqualified statements made in the first trial affidavit.  Bearing in mind that Ms Provatidis had recently become represented, I gave her written evidence some latitude where a conclusionary statement appeared to be clarified by subsequent detail.

    [48]  Exhibit A8 sworn on 11 June 2018.

    [49]  Exhibit R5.

    [50]  Exhibit R6.

32. Nonetheless, I formed the impression from Ms Provatidis’ evidence that she was prone to exaggeration.  For example, in her first trial affidavit she deposed:  “Between the years of 1998 and 2015, we were in each other’s company at least 22-24 hours a day.”[51]  Yet she regularly travelled around Australia and overseas to sell opals,[52] so they were not together because he did not go with her.  In her second trial affidavit, she qualified her earlier evidence about when they were together to except when she had to go on sales trips for three months over summer and he stayed with his family in Whyalla.[53] Apart from that exception, her evidence still was they spent every day and night together,[54] and that was from the time he poured alcoholic drinks he forced her to drink, raped her and told her not to tell anyone or he would kill her.[55]  If her account of this occasion was truthful, the implausibility of her then spending 22-24 hours a day with him working and living with him from that time onwards was not satisfactorily addressed by her evidence.

    [51] Exhibit R5 [13].

    [52]  Exhibit R5 [10] and [23].

    [53] Exhibit R6 [17].

    [54] Exhibit R6 [17][18][26]; T 124.2-.10; T 124.23-.35.

    [55]  Exhibit R6 [14][15].

1. From this beginning, Ms Provatidis’ account of her relationship with Mr Theodorou was that from August 1998 onwards, they spent every day and night working and living together, whenever they were both in Coober Pedy.[56] Between 1999 and 2004,[57] they parked to have sex against her will until the early hours of the morning whenever Mr Theodorou’s brother was at Simos Street.[58]  He was then staying until 5 or 6 am at Olympus Crescent every night, arriving after work each night for dinner and sex.[59]  The impression conveyed by Ms Provatidis’ evidence is very much one of Mr Theodorou leading a double life for nine months of the year in Coober Pedy, only returning to his absent family for the summer.  With his family living apart in Whyalla, Mr Theodorou and Ms Provatidis were involved in an intense but abusive sexual relationship living together as a couple, sharing a passion for opals that was the focus of their lives together.  They shared a social life centred on the Greek Club, with her loving and caring for him when he was ill and undertaking the burden of the domestic chores for their shared home and paying for their food.

   [56] Exhibit R6 [17].

   [57]  Exhibit R6 [[18].

   [58] Exhibit R6 [18].

   [59] Exhibit R6 [23].

2. The composite picture painted by the Theodorou family’s evidence was a very different one which did not fit with Ms Provatidis’ version. The overwhelming evidence to the contrary was that (save for the summer months when he was not there at all), Mr Theodorou lived at Simos Street with Mrs Theodorou from 1998 and did not live in any of Ms Provatidis’ homes.  Mr and Mrs Theodorou lived with his brother at Simos Street until the latter’s death in September 2004, with Penny and Ryan in 2001 and 2002, and Nick in 2005 on a full-time basis, otherwise with the children visiting during school and university holidays in those years.  Their evidence to this effect was confirmed by evidence of specific memorable occasions attended by Mr and Mrs Theodorou elsewhere. I accept they had come together from Coober Pedy and there is a photograph dating some of these occasions, such as Nick’s 21^st birthday on 16 February 2000,[60] when Penny had an episode and was admitted to the Coronary Care Unit in Adelaide in July 2006[61] or Penny’s wedding in June 2007.[62]

   [60]  Exhibit A22; T250.25-251.8.

   [61]  Exhibit A23; T251.10-252.4.

   [62]  Exhibit A24; T252.9-.23.

3. The Theodorou family’s evidence as to who lived at Simos Street was credibly supported by detailed evidence about who slept where and when and how they shared the domestic chores of cooking, cleaning, washing, ironing and shopping, and none of which involved Ms Provatidis and was contrary to her generalised evidence that she did this all for Mr Theodorou all of the time in their “home”.[63] As it transpired in her subsequent evidence, whilst Mr Theodorou maintained one residence in Coober Pedy at Simos Street, Ms Provatidis had three homes:  her father’s house, Olympus Crescent and Hutchison Street.  There was no mention of Olympus Crescent in her first trial affidavit.

   [63] Exhibit R5 [4].

4. Nor did the overall picture painted by Ms Provatidis’ evidence fit with the friendship Ms Provatidis obviously once enjoyed with the Theodorou family generally (and not just with Mr Theodorou).  In better times, she was close to Mrs Theodorou and the daughters.  There was uncontradicted evidence that Mrs Theodorou taught Ms Provatidis how to cook food that she would share with the family at Simos Street.[64]  There is photographic evidence of Ms Provatidis happily sharing a meal with the family at Simos Street[65] and they shared meals at her home at Olympus Crescent when she invited the family over.[66]  Over coffee at Simos Street, when Mrs Sophia Provatidis visited Coober Pedy two or three times a year, she thanked Mrs Theodorou for looking after her daughter.[67]  Maria Theodorou and her father helped Ms Provatidis renovate Hutchison Street.[68]  Maria expressed her affection for Ms Provatidis as a sister in the text message sent in September 2015 after the unfortunate altercation between the parties that occurred at Hutchison Street.[69] 

   [64] T286.17-.19. Simos Street refers to the Theodorou family home in Coober Pedy and defined below in Factual Findings section at [97] below.

   [65]  Exhibit A19 taken in 2006 showing Mr and Mrs Theodorou, Penny and Ms Provatidis.

   [66]  T402.4-.14.

   [67]  T401.9-.14.

   [68] T408.3-.6. Hutchison Street refers to the premises known as the “Opal Beetle” located at Lot 7, Hutchison Street, Coober Pedy as defined in the factual Findings Section below at [133].

   [69]  Annexure A to Exhibit R5.

5. Most telling was Ms Provatidis’ own evidence in cross-examination when it was suggested that Mr and Mrs Theodorou had both thought of her affectionately while she was working with Mr Theodorou for many years and trusted her.  She did not deny it and said: “They exploited me.” When asked whether Mrs Theodorou also exploited her, she said:  “Correct”. She then explained that she now understood this from speaking to a psychiatrist in 2019.[70]

   [70]  T156.38-157.15. Dr Callum Deakin’s report comprises Exhibit A12.

6. To bolster the appearance of a distant family living apart from Mr Theodorou, Ms Provatidis gave the following written evidence about the care and support she provided to Mr Theodorou at the time of his brother’s tragic death in 2004 in a car accident.[71]  In her first trial affidavit she deposed:[72]

   25. In 2004, we were catering for a native title event. The police arrived. [sic] I need to talk to you prior to talking to Jim. I need to tell you first then ask you to come with me to tell Jim. He informed me that Jim’s brother, TELI had rolled his car and died. I accompanied the detective and he told Jimmy about the accident. Jimmy was grief-stricken and very upset .He leaned on me for support. I accompanied him to the morgue. Together at the Cooper [sic] Pedy hospital and identified his brother. We returned to TELI’S house. Many people attended to pay their condolences. I was constantly making coffee for friends. I did not leave Jimmy alone for this entire week. When Jimmy’s wife and children arrived in Cooper Pedy, one (1) week after the accident, I returned to the Opal bug.[73]

   26.My father attended the funeral in Whyalla. My father and myself attended the wake at his Jim’s home. Jim invited to his home for the wake. Jim’s sister was not invited to the wake at Jim’s home.

   [71] Exhibit R5 [25]-[26]; R6 [31].

   [72]  Exhibit R5 sworn on 26 March 2021.

   [73]  That is, Hutchison Street.

7. In her second trial affidavit sworn just over a month later and the day before the trial resumed, she deposed:[74]

   31.A detective came and found me and said to me: “I need to tell you before I approach the Applicant. His brother rolled the car and is dead”. Together with the detective I saw the Applicant and told him. I was then told by George not to let the Applicant out of my sight and to stay with him and to take the Applicant to the Hospital to the morgue to identify his brother, which I did and I also saw his dead brother in the morgue. I took the Applicant home to his brother’s house and stayed with him for a week before his wife and daughter arrived in Coober Pedy. 

   [74]  Exhibit R6.

8. In cross-examination four days later, when it was suggested to her that his family came within 24 hours of the accident, Ms Provatidis insisted they did not, having said twice before in her written evidence that they took a week to get there.[75] 

   [75]  T152.9-.25.

9. Penny gave the following account in cross-examination.[76]

   [76]  T283.37-284.11.

   Q.      When your uncle died, I put it to you that in fact the           

   immediate family, that is, your mother, Nick, your              
           sister and yourself were not in Coober Pedy for about a    
           week after that happened.  

   A.         No, we left and went to Coober Pedy the night that my - I        

   waited for my brother to travel from Adelaide.  We got         
           in my work car and we drove in the middle of the night    
           to get to my dad.  
   Q.      I put to you that Michelle stayed with your father for     
           that first week after your uncle died.  
   A.      No, she did not.  
   Q.      And that she moved into the Big Miner[77] with him.         

   A.      She did not because we were there.          

   [77]  That is, Simos Street.

10. In examination-in-chief when asked how her uncle’s death affected the family, Penny said it affected all of them, particularly her brother who after the incident could not go back to work properly and after several months ended up back in Coober Pedy living with her parents for at least a year.[78]  Her father’s account was consistent with Penny’s evidence that his family “they come the next morning”[79] and diverged from Ms Provatidis’, in that while it was correct that the police officer had come and found him at the Greek Orthodox Community Hall at a function (which he, Ms Provatidis and hundreds of others were attending) to tell him the devastating news, the police officer spoke to him with his friend George Kyriacos  and told him straight out.  Ms Provatidis did not come into the room with his friend George and the police officer, and he did not hear his friend say to Ms Provatidis to stay with him.  She did not stay that night with him.  Mr Theodorou then rang his son a minute or two after the dreadful news. His son then “pick up the rest of the family and come to me”.[80]

    [78]  T242.5-.24.

    [79]  T293.13.

    [80]  T292.3-293.9: T341.36-342.23

11. Mrs Theodorou remembered she was at a doctor’s appointment in Whyalla when she was told of her brother-in-law’s death.  She had come down to Whyalla with Mr Theodorou and he had left her there to go back to Coober Pedy to mind the shop.  Her son Nick drove from his work in Adelaide to Whyalla and then Penny drove them all night to Coober Pedy in her work car and they arrived at 10 or 11 o’clock the next morning.[81]

    [81]  T395.18-397.8.

12. I had no reservation about the truthfulness of the Theodorou family’s evidence on the critical point as to whether they took a week to arrive, leaving Ms  Provatidis to be the sole source of comfort and solace to Mr Theodorou.  Accordingly, I reject Ms Provatidis’ evidence to the contrary.  I accept that as a close family friend and a decent human being, she may well have been supportive and served coffee for people paying their condolences and would have done so as a close family friend.  However, the composite picture painted by her evidence on this issue is a gross exaggeration of the facts as I have found them, undermining her credibility more generally. 

13. Regrettably, this was not an isolated example of Ms Provatidis’ exaggeration and embellishment of the basic truth, as I have said before.  I also found her evidence about the circumstances of Mr Theodorou’s involvement in renovations of Olympus Crescent and then Hutchison Street and his supposed encouragement for her to move out of her father’s house entirely unsatisfactory. 

14. Further, just as Ms Provatidis’ evidence to the effect that she and Mr Theodorou lived together all of the time is contradicted by the overwhelming evidence to the contrary, so is her evidence about their sexual relationship to the effect they spent every night together, “parking” until 5 or 6 am between about 1999 and 2004 and then spent every night at Olympus Crescent until dawn until she moved into Hutchison Street, where she then lived.  Accordingly, I do not accept Ms Provatidis’ evidence that her car was parked outside Simos Street every night, nor the implication that it was because she was either having sex with Mr Theodorou in her car or inside when his brother was not there.[82]  Her evidence to this effect is directly contradicted by Penny’s evidence of her observations when she visited Coober Pedy for three months of the year before and after she lived full-time at Simos Street and in 2001 and 2002 when she lived there full-time.   It is also contradicted by Mr and Mrs Theodorou’s evidence that they shared a bed every night at Simos Street whenever they were in Coober Pedy.

    [82] Exhibit R6 [18].

15. Counsel for Mr Theodorou submitted that there were telling inconsistencies between Ms Provatidis’ evidence and the report about relevant matters she gave psychiatrist Dr Callum Deakin on 11 November 2019 when he examined her.[83]  Although not relevant to the nature and extent of her relationship with Mr Theodorou, her report to Dr Deakin about her childhood was directly contradicted by her mother’s evidence, further undermining her credibility since I formed the view that Mrs Provatidis was genuinely surprised about the alleged sexual assault on her daughter as a child and truthful in saying she did not know about it.

    [83]  Recorded in Exhibit A12.

16. For these reasons and as regards specific matters elaborated on below,[84] I found Ms Provatidis to be an unsatisfactory and unimpressive witness in key respects, and I do not accept her evidence as honest or reliable overall.  Where her evidence diverges from that of other witnesses or a contemporaneous document on a relevant topic, I have preferred that other evidence. 

    [84]  See below in the section “Factual Findings”.

    Mrs Sophia Provatidis

17. Ms Provatidis relied on her mother’s evidence to support her characterisation of her relationship with Mr Theodorou as being much more than being in business together.

18. Mrs Provatidis’ written evidence was generalised and on its own of limited assistance in shedding light on whether the relationship was more than a close working relationship and friendship.  This was all the more so given that her oral evidence was that by the year 2000 she spent most of the time living in Adelaide and only visited Coober Pedy occasionally, as often as her husband needed her, [85]  and only spending more time when she was working on her book on safety in opal mining she published in about 2001. 

    [85]  T200.18-.22; T201.20-.24.

19. In cross-examination, Mrs Provatidis  was argumentative and at times almost combative.  She was difficult about the value of the opal stock she gave her daughter, and I formed the impression she was intentionally vague because she did not want to say something that might prejudice her daughter’s case.  It was evident that she tailored her answers to suit what she thought assisted her daughter’s case.  For example, when she was asked whether she was aware her daughter was drinking  a lot when she was in Coober Pedy, she said: “No, I was living in Adelaide most of the time.  What year are you talking about?” and when counsel did not tell her, she asked him again to tell her what year he was talking about.[86]  She was then difficult about how much time she spent in Coober Pedy when she could see he was trying to establish that she was hardly ever there and then later evasive about how often she saw Mrs Theodorou in Coober Pedy.

    [86]  T200.5-10.

20. Whilst I was sceptical about Mrs Provatidis’ evidence about her knowledge of how much her daughter drank,[87] I found her answers truthful to the questions in cross-examination about whether she belittled her daughter growing up and treated her badly by making her feel like her younger siblings were more important.  When asked if she was aware her daughter had been sexually assaulted by her uncle, she said no twice.  When it was suggested that her daughter had told her about it and she had not believed her and told her she was making it up, she could not recall and then gave an odd answer to the effect her recollection would depend on the context.  She was clearly caught off guard by these questions and, when pressed, denied any knowledge of such disturbing allegations, consistent with her initial evidence on the topic.  Whilst I accept her denials as truthful, I again formed the impression she was taking care to give evidence that assisted her daughter but was stuck with the awkward truth and suspected her evidence might be unhelpful.[88]

    [87]  T204.1-14.

    [88]  T204.31-205.27.

21. Ultimately, Mrs Provatidis’ observations were of limited assistance in determining the objective truth of what occurred given she was not there most of the time and when she was, her observations were consistent with a business relationship and friendship. 

    Ms Penny Archer

22. Mr Theodorou’s eldest daughter, Panagiota (Penny) Archer gave oral evidence about the family’s living arrangements during the relevant period.  She described where they lived and how that changed from the time she was at primary school, finished high school and returned to Coober Pedy to live for two years, then married and had children.  Penny’s evidence on this topic was critical given it contradicted Ms Provatidis’ evidence that she and Mr Theodorou lived together on a genuine domestic basis from about August 1998 to 2015, spending every day and night together except for the summer months and when she was away on sales trips. 

23. She was cross-examined about the amount of time she lived in Coober Pedy, the basis of her observations of her parents’ sleeping arrangements and sharing of the domestic chores at Simos Street, how long it took her, her mother and siblings to get to Coober Pedy when her uncle died and her observations of interactions between her father and Ms Provatidis.       

24. Penny gave her evidence in a straightforward and natural manner. She answered questions directly.  Her recall of dates and detail of living arrangements at the Simos Street house was clear and generally consistent with her parents’ evidence.[89]  In cross-examination, she made appropriate concessions as to the times she was not living in Coober Pedy and properly acknowledged she could not say what was going on when she was not there.  Overall, I found her to be an honest and reliable witness and have no reservations about the truthfulness of any aspect of her evidence.

    [89] Exhibits A20 and A20A.

    Mrs Litsa Theodorou

25. Mrs Theodorou was born in Greece and came to Australia in 1966.  She was 74 years old when she gave evidence, with limited assistance from a Greek interpreter since English is her second language.  I found her understanding of English quite good although at times her language was often plainly expressed.  On one occasion she corrected the translator.

26. Mrs  Theodorou’s evidence concerned her family’s living arrangements and how they changed from the time she married, her children were born and schooled and became adults.  Her evidence was critical in resolving key divergences between Mr Theodorou’s denials and Ms Provatidis’ claims about how they lived and worked and the text following the name day dinner in August 2014. 

27. Understandably, Mrs Theodorou was unable to recall the dates of events that occurred many decades ago.  However, she was quick to give the dates of important family occasions and able to date key events by reference to the ages of her children or where they were in their schooling and to provide otherwise relevant details.  She made honest concessions when she could not recall a date, such as when asked what year Penny and her fiancé Ryan moved to Coober Pedy,[90] or when Nick did.[91]  I accept she honestly could not remember and, as she said, “I’m 74.”

    [90]  T397.9-.23.

    [91]  T398.25-.35.

28. Counsel for Ms Provatidis criticised the reliability of her evidence overall because twice (once in examination-in-chief and again in cross-examination) she confirmed as correct the suggestion that she returned to live in Coober Pedy in 1994 and she lived at Simos Street on a full-time basis.[92]  I have found it was not 1994 and she was mistaken.  According to Penny it was 1998 when her mother returned to Coober Pedy, when her sister was in year 11 and her brother had finished high school.  This is consistent with the children’s ages and the answer Mrs Theodorou first gave when asked when she returned to Coober Pedy.  She recounted when some of the children were at school, then her counsel asked a question to establish what year that was and suggested (incorrectly) it was 1994.  She replied to the effect it was when the oldest one was old enough to look after the others.[93]  That was not 1994 because Penny was still at high school in 1994, had her gap year in Coober Pedy in 1995 and returned for university in Whyalla in 1996.   

    [92]  T428.19-.30.

    [93]  T387.1-.6.

1. At the end of her cross-examination, Mrs Theodorou was asked if she could recall what year Penny had her gap year.  She was not sure and said she did not know the year and could not remember every year.  She then agreed she was living “there” full time by then.[94]  If she was referring to Coober Pedy, I find Mrs Theodorou was mistaken in giving this answer because by her earlier evidence she did not relocate to Coober Pedy full-time until Penny was at university, and she was before then only in Coober Pedy intermittently and during school holidays.

   [94]  T409.2-.8.

2. I do not accept the criticisms to the effect that overall Mrs Theodorou was an unreliable witness.  I particularly found Mrs Theodorou’s evidence substantially consistent with her husband’s and Penny’s evidence, notwithstanding she was self-evidently supportive of her husband’s case.  I accept Mrs Theodorou as an honest witness doing her best to tell the truth as she recalled it. Where there is a disparity with Penny over dates, I consider Penny’s evidence the more reliable given Mrs Theodorou’s age and memory, bearing in mind that Penny would best remember the dates of important milestones in her relatively younger life.

   Witnesses Not Called

   Ms Provatidis’ Father

3. Ms Provatidis did not call her father to support any of the claims she made about which he could have given relevant evidence.  On the topic of the nature and extent of the character of the parties’ relationship, and particularly in the beginning years, his observations of his daughter’s comings and goings and her spending “every day and night” with Mr Theodorou (except when she was on sales trips or over the summer months) whilst she was living with her father[95] were relevant.  This was a significant issue. 

   [95] Exhibit R6 [17].

4. The reason Ms Provatidis gave for visiting Mr Theodorou on the first occasion they were alone and he allegedly raped her and their sexual relationship and abuse began,[96] her father’s alleged acceptance of Mr Theodorou as her relationship partner including that he had dinner with them on occasion, [97] that he went with her to Mr Theodorou’s brother’s funeral in Whyalla,[98] that her parents would give opals for processing for no fee[99] and what led her to move into her father’s rental property at Lot 733, Olympus Crescent[100] were all matters where his evidence was relevant to the composite picture painted by Ms Provatidis’ evidence.

   [96]    Exhibit R6 [13]-[14].

   [97] Exhibit R5 [19].

   [98]    Exhibit R6[33].

   [99] Exhibit R5 [19].

   [100] Exhibit R6 [22].

5. Ultimately, Ms Provatidis’ failure to call her father leads me to conclude his evidence would not have helped her case and I gave little weight to her evidence referring to her father. 

   Mr Costa Kapetamakis

6. Ms Provatidis gave evidence about leaving Coober Pedy in fear of her life on 1 September 2017 to live in Port Adelaide[101] and referred to an altercation in her shop when Mr Theodorou and a police officer attended without notice, unannounced.  She claims he verbally abused and threatened her, saying in Greek he was going to kill her and finish her off in front of the police officer.[102]  Mr Theodorou categorically denied making death threats and his account of this incident was very different. 

   [101]   Exhibit R6 [56]

   [102]   T149.11-150.15.

7. In cross-examination, Ms Provatidis volunteered that her friend Mr Costa Kapetamakis, whom she described as her “soulmate”,  was present during this altercation, that Mr Theodorou also verbally abused him and afterwards Mr Kapetamakis went to the police station to report the incident. Then “we left town for no more trouble.”[103]  Mr Kapetamakis’ evidence about these matters was clearly relevant to the credibility of the parties’ evidence on a hotly contested topic, yet no explanation was given as to why Ms Provatidis did not call him to give evidence. 

   [103]   T150.15.

8. I infer his evidence would not have assisted Ms Provatidis’ case.  Her written evidence made no mention of these details and I find her oral evidence on the topic exaggerated and unreliable. 

   Friends and Other Family         

9. Ultimately, I was not troubled by the absence of Mr Theodorou’s other children, Nick and Maria, because the evidence given by Mrs Theodorou and Penny of the parties’ living arrangements and social lives was overwhelming in contradicting Ms Provatidis’ version and supporting that of  Mr Theodorou.

10. Whilst neither party called any witnesses outside their immediate families, I make no criticism of this given the limited extent to which friends can give relevant admissible evidence about their observations of the nature of a relationship between two people.

    FACTUAL FINDINGS

11. There was significant dispute over the facts and circumstances relied on by Ms Provatidis to support her contention that there was a de facto relationship between the parties between August 1998 and 2015.  Some background matters were agreed by way of a chronology,[104] but many were not.  Where there were divergences between the evidence of the parties and it was necessary to resolve the difference, I have done so having regard to my overall view of the evidence of the parties in the context of the particular issue.   There were some divergences where I found it unnecessary to address the difference because it did not bear on the essential issue. 

    [104]  FDN 67.

    The Theodorou Family

12. Mr Theodorou was born in 1948 in Kalambaja, Greece and immigrated to Australia, initially settling in Melbourne in 1965.  He began travelling to Coober Pedy and mining opals with his brother, Aristotelis, known as Tel.  In 1970, the brothers “pegged” some land they rented and when it was subdivided by the Lands Department, the block on which they built the house they lived in was on the block registered in his brother’s name.[105]   The house is known as Lot 540, 1 Simos Street and referred to colloquially as the “Big Miner” because of the copper statue of a miner that Mr Theodorou and his brother erected outside.[106]  I have referred to the Theodorou family home and Mr Theodorou’s workshop as “Simos Street” for shorthand even though it was often referred to as the “Big Miner” in the evidence.

    [105]  T345.38-346.10.

    [106]  T272.17-.33.

13. In 1972, Mr and Mrs Theodorou married.

14. Mr and Mrs Theodorou have three now adult children: Penny born in 1977, Nick in 1979 and Maria in 1982.

    Ms Provatidis’ Background

15. Ms Provatidis was born in Australia in 1969.  She is 21 years junior to Mr and Mrs Theodorou.  She is eight years senior to Penny.  Mrs Theodorou first met Ms Provatidis when she was 10 or 12 years old, when the latter was a neighbourhood child in their small outback town.

16. In about 1990, Ms Provatidis moved to Coober Pedy to work with her father, mining and learning the opal trade.  It did not last long so she gained employment at the District Council of Coober Pedy.[107] She lived in her father’s house at 43 Malliotis Boulevard , “100 steps” from Simos Street.[108] 

    [107] Exhibit R6 [3].

    [108]  Exhibit R6 [11]-[12].

17. In about 1992, Ms Provatidis worked with her mother selling opals at conferences in Adelaide, interstate and overseas.[109]

    [109] Exhibit R6 [4].

18. In about 1995, Ms Provatidis established a business she called “Michelle’s Opals Australia” which was registered in about 2000.  In about 1997, she completed her Gemmology Diploma.[110]  Ms Provatidis sold opals for her parents’ business “Majestic Opals” as well.[111]

    [110]  Exhibit R6 [5]-[6].

    [111]  T198.38-199.18.

19. In about 1998, Ms Provatidis asked her parents to give her opals as stock.  There is an issue between her and her mother’s evidence as to the value of the stock that is not critical to resolve.

    The Beginning of their Relationship

20. As near neighbours , living in a small outback town, the parties knew of one another before their first meeting as relevant to this case. 

21. In August 1998, Ms Provatidis was living with her father at his house on Malliotis Boulevard when her father took her to meet Mr Theodorou about cutting and polishing some opals.  The circumstances of what happened at their next meeting was the subject of bitter dispute and Ms Provatidis gave evidence that this second occasion marked the start of a violent and abusive sexual relationship as a couple, despite Mr Theodorou being married.

22. In summary, Ms Provatidis’ evidence was that in August 1998, her father sent her (unwillingly) to collect some opals being cut by Mr Theodorou.  On this second occasion, she and Mr Theodorou were alone at Simos Street.  Over the course of a lengthy conversation he flattered her and told her intimate details of his relationship with his wife and personal affairs, poured her alcoholic drinks that he forced her to drink, locked the doors, then raped her and told her not to tell anyone or he would kill her.[112]  She confirmed her clear memory of the detailed account she had given in writing of this occasion, despite none of these important details being mentioned in her first trial affidavit.[113]

    [112]  Exhibit R6 [14][15]. T137.1-.21.

    [113]  T139.18-.21.

23. Ms Provatidis’ evidence about this occasion was markedly different from the rape allegations she made in an affidavit made to the police in 2018 that was tendered in the course of her cross-examination.[114] In her police affidavit she deposed that she was introduced by her dad to Mr Theodorou in 1999 so he could cut stones for her to sell and teach her how to polish opals.  The first time she was raped “would have been around 2000/2001”[115] and was not the second occasion on which they met after she returned to Coober Pedy.  She gave some details of repeated unwanted sexual abuse by Mr Theodorou until 2015 and referred to being raped at either his house or hers and her protests that she would say “no”, “don’t”, “I want to go home”.[116]

    [114]  Exhibit A8 [6]-[11].

    [115] Ibid [10].

    [116] Ibid [11].

24. When shown her police affidavit in cross-examination, Ms Provatidis insisted she was raped as she had earlier said in her evidence, but then conceded it did not happen on the second occasion she met Mr Theodorou in 1998.[117]  She then affirmed what she said in the police affidavit to the effect she was raped at his house or hers and always said she wanted to go “home”.  When it was put to her that she said “home” because they did not ever live together, she unconvincingly denied that was the case.

    [117]  T147.34-.148.1.

25. Her inability to explain the fundamental inconsistencies between her police affidavit and her earlier evidence before me led me to conclude her allegations in this regard about such serious matters were untruthful and I could not reliably find anything said in either her police or second trial affidavit about these allegations was true, save that their relationship started with her learning to cut and polish opals with Mr Theodorou and later developed into an arrangement concerning the sale of Mr Theodorou’s opals.

    The Parties’ Living Arrangements

    Simos Street

26. When Mr and Mrs Theodorou married, they moved to Coober Pedy to live at Simos Street with Mr Theodorou’s brother.

27. Summers in Coober Pedy are notoriously hot, and many residents move away between December and March.  In about 1979, Mr and Mrs Theodorou purchased a house in Whyalla at 26 McIntosh Street, which was referred to in evidence as the “McIntosh Street” house.  Mr Theodorou’s brother also owned a house in Whyalla. 

28. The Theodorou family lived together in Coober Pedy at Simos Street until Penny had finished her penultimate year of primary school.  In about 1990, the Theodorou family then moved its base to Whyalla and lived at McIntosh Street so Penny could attend year 7 of primary school and high school in Whyalla.  Mr Theodorou travelled to Coober Pedy from time to time to work.

29. Mr Theodorou lived in Whyalla with his family for the next year and when he could not find a job, he moved back to Coober Pedy during the school term to live and work with his brother at Simos Street.  He split his time between Whyalla and Coober Pedy, with Mrs Theodorou and the children returning to Coober Pedy for the school holidays during the school year.  For the summer months, the family returned to Whyalla and lived at McIntosh Street. 

30. In 1995, Penny spent a gap year in Coober Pedy, living with her father and her uncle at Simos Street.  Mrs Theodorou lived in Whyalla with the other children, who were attending school in Whyalla. 

31. In 1996, Penny returned to Whyalla to complete a Bachelor of Business at Uni SA and lived in the family home in McIntosh Street with her younger siblings, who were still attending high school.  From about March to December, during school terms, when Mr Theodorou was in Coober Pedy, Mrs Theodorou lived either in Whyalla with her children or in Coober Pedy with Mr Theodorou.  Mr and Mrs Theodorou travelled back and forth between Coober Pedy and Whyalla and spent the school holidays in Coober Pedy.

32. By 1998, when the parties first met over the cutting and polishing of opals, Nick had finished high school and had started university and was working with OneSteel in Whyalla.  Maria was in year 11 of high school and Penny still at university in Whyalla.  Since Penny was old enough to look after the others, Mr and Mrs Theodorou began spending nine months of the year in Coober Pedy, rather than travelling back and forth between Whyalla and Coober Pedy during the school terms and sometimes living apart.  The children visited their parents in Coober Pedy during school and university holidays, spending about three months of the year in Coober Pedy.  During term, the parents returned to Whyalla for special events, such as birthdays and graduations. 

33. Whenever Mr and Mrs Theodorou were living in Coober Pedy together at Simos Street, they slept in the bedroom they had slept in since the children were small, next to the room the family described as the “kids’ room”, “up the back” and to get through to the kid’s room, as Penny said, “you had to go through my mum and dad’s room”.[118] 

    [118] T236.24-.32. This is bedroom A on Exhibit A20A, adjacent to the bathroom and the kids’ bedroom B.

34. In 2001 and 2002, Penny and her then boyfriend (now husband) Ryan lived in Coober Pedy at Simos Street, having come to learn the opal trade.  They lived there with her parents, Mr and Mrs Theodorou, and her uncle, Mr Theodorou’s brother.   On a daily basis, Penny saw her parents still sleeping in the same bedroom together as they had since she was a child, sharing a bed.[119]  Penny and Ryan slept in a bedroom on the other side of the house, off the lounge and next to her uncle’s bedroom,[120] unless there were guests.  Then they slept in the old kids’ bedroom. 

    [119] T239.18-.32.

    [120]  Marked as bedroom C on Exhibit 20A.

35. Penny and Ryan left Coober Pedy and returned to Whyalla at Christmas 2002.  After then, Penny visited her parents in Coober Pedy approximately twice a year. On these occasions, Penny saw her parents sleeping in the same bedroom as before, sharing a bed.[121]

    [121]  T240.14-242.4.

36. In September 2004, when Mr Theodorou’s brother died in a car accident, his family arrived in Coober Pedy the next morning.  Ms Provatidis did not live at Simos Street for a week so as not to leave him alone at this terrible time.  

37. Since about 2013, when her children started school,[122] Penny travelled to Coober Pedy with her children during school holidays to stay with her parents.  She saw her parents still sharing a bed in the same bedroom at Simos Street,[123] until more recently (and after 2015) they slept in separate bedrooms because of Mr Theodorou’s snoring.

    [122]  T244.23-.24.

    [123]  T243.9-.27.

38. Mr and Mrs Theodorou and Penny each gave extensive evidence about the family’s living and working arrangements by reference to the layout of Simos Street on a hand-drawn plan.[124] The plan showed that the residential space at Simos Street was small and centred around the dining and living room, with the shop and workrooms at the front on Simos Street.  The parties lived in such close quarters that it is implausible that when they were living at Simos Street, they were not fully aware of where Mr Theodorou slept, and with whom, or of his comings and goings at night-time.  With the shop and larger back door bolted after closing, the laundry door was the natural point of ingress, after driving or walking down a gravel drive through a gate that creaked.  No matter which bedroom anyone was sleeping in, repeated late night or dawn arrivals by Mr Theodorou would have been obvious.

    [124]  Exhibit A20.

39. Mr Theodorou’s denial that he lived with Ms Provatidis is supported by the evidence of his wife and daughter Penny, which evidence I have accepted as both truthful and reliable.

40. In conclusion, I find that from 1998 to 2015, Mr Theodorou lived at Simos Street with his wife and other members of his family.  

    Malliotis Boulevard

41. In August 1998, Ms Provatidis was living with her father at his house at 43 Malliotis Boulevard, in an underground bedroom.

    Olympus Crescent

42. In about 2001, Ms Provatidis moved into a rental property owned by her father at Lot 733, Olympus Crescent. 

43. She did not move out of her father’s house at the urging of Mr Theodorou because he wanted a place for them to be together or because he was concerned for her safety living underground when her father would not let her live above ground at his house.  Rather, Mr Theodorou told her once it was unsafe for her underground after there was rain because he had checked the walls when her father asked him to as Mr Theodorou was a builder.  He did not say so to get her to move so they could be together, as her counsel suggested.[125]

    [125]  T352.4-.21.

44. Mr Theodorou did not live at Olympus Crescent with Ms Provatidis at any time.[126]  Nor did Mr Theodorou come there after work each day for dinner around 8 pm and stay until 5 or 6 am, then leave.  As I have said, I do not accept Ms Provatidis’ evidence to this effect[127] as truthful  and there is no objective evidence supporting her account.  It was directly contradicted by the evidence of Mrs Theodorou and Penny.   For example, in 2001 and 2002, when Penny and her boyfriend Ryan were living at Simos Street, Ryan and her father would go to the Greek Club and return together, and Penny would go some nights too.[128]  Moreover, from 1998 when Mrs  Theodorou relocated to Coober Pedy full-time, she shared the same bed with her husband every night they were at Simos Street (until several years ago when they took separate bedrooms because of Mr Theodorou’s snoring).[129] 

    [126] Exhibit A1 [11].

    [127]  Exhibit R6 [22]-[23].

    [128]  T258.32-.38.

    [129]  T389.34-390.4.

45. Mr Theodorou helped Ms Provatidis renovate Olympus Crescent by replacing the carpet with tiles she bought and paving the driveway, but not in the way she claimed.[130]  As the two photographs tendered[131] show, Mr Theodorou did the tiling work with Nick and Eric the tiler and they were eating Chinese take-away at the end of a day of tiling.  It was not, as Ms Provatidis described, her cooking for his friends because he was living with her there and it was his home.  His assisting her was clearly not a secret from Mrs Theodorou.  When she was shown these photographs, she named the tiler and knew exactly what they were doing.  It was not surprising that Mrs Theodorou was not there eating take-away with them because she was minding their shop at Simos Street while they were doing the tiling. 

    [130] Exhibit R6 [27].

    [131]  Exhibit R33.

46. Ms Provatidis’ counsel suggested to Mr Theodorou in cross-examination that he did the renovations to make the place comfortable for both of them, which he denied.  I accept his explanation that he was motivated to do so because he and the other Greek men were simply helping her: “That’s what we doing, all of us help each other”[132] and that is unsurprising in a small outback community among friends.

    [132]  T352.22.-32.

47. It is apparent that Ms Provatidis has significantly embellished the circumstances of her relocation to Olympus Crescent and the renovations undertaken. 

    Hutchison Street       

1. In about 2005, Ms Provatidis began working in Nick Le Souef’s shop, the “Opal Beetle” located on the main street and known as Lot 7, Hutchison Street.

2. To save her packing up her jewellery every evening and taking it back to Olympus Crescent to keep it safe overnight, Mr Theodorou suggested she make some alterations so she could live there.  He and his daughter Maria worked together to demolish the shelving in a storeroom and renovated the place so she could live there.[133] He did not do the renovations for the purpose of making it comfortable as a home for them to live in.

   [133]  T309.5-310.17.

   Performance of Domestic Chores

3. The parties did not share the performance of any domestic chores because they lived apart and did not ever share a common residence on a genuine domestic basis. The limited evidence before me about cooking and shopping was not for the purpose of any domestic arrangement.

   The Parties’ Working Arrangements

4. Mr Theodorou has always had a workshop set up in two front rooms at Simos Street, where he cuts and polishes opals.  He also has a workshop in the Whyalla home at McIntosh Street.[134]  There is also a room at Simos Street that functions as a shop, with a front door through which customers enter.[135]

   [134]  T311.18

   [135]  Exhibit A20.

5. In the early years of their relationship, Mr Theodorou spent time during the day and evening with Ms Provatidis in his workshop teaching her how to cut and polish opals.  From this work, they developed a business relationship where she would sell his opals on her interstate and overseas trips, as well as a friendship which included his family.

6. All of the time they worked together, his family was living with him in the back part of the premises that served as their home.  Ms Provatidis travelled often and regularly interstate and overseas, selling opals for herself, her parents and him.  By 2005, Ms Provatidis began working in a retail shop on Hutchison Street owned by Nick Le Souef. 

7. Ms Provatidis sold opals for Mr Theodorou from the “Opal Beetle”.   It is alleged that Mr Theodorou last delivered opals and jewellery to her there in about 2008.[136]  It is not necessary to resolve this matter here.

   [136] Statement of Claim [8].

8. In about 2010, Ms Provatidis purchased Hutchison Street from Nick Le Souef and ran her retail business selling opals from there.  She claims she started purchasing opals from travelling wholesalers and it was towards the end of the year that she last cut and polished stones for Mr Theodorou.  Whilst there is no other evidence supporting these claims, it is also not necessary to resolve them here.

9. Sometime after 2010, when she purchased Hutchison Street, Mr Theodorou suggested she buy cutting and polishing machines from a friend who was selling his.  She did and installed them at Hutchison Street.

10. Mr Theodorou did not generally do his cutting and polishing work from Hutchison Street. He preferred his own workshop where he had his own “beautiful” machines.[137]  He did use her machines on occasions, such as when Ms Provatidis called him to come and show a customer in her shop a specific stone that needed cutting or finishing.  He also frequented her shop like most of the locals regularly frequented one another’s shops, and she, Simos Street. 

    [137]  T311.31-.32.

11. Mr Theodorou can be seen using her machines in making their segment of the documentary “Big Stories, Small Towns” in 2014, which I was asked to view.  I accept that the footage showing Mr Theodorou working at Hutchison Street and then sitting down to dinner with Ms Provatidis and her father was choreographed for the video and did not necessarily reflect the parties’ true working or domestic living arrangements.

12. Ms Provatidis in her evidence claims that between March 2013 and January 2015 she paid a total of $49,690.69 to a jeweller on behalf of Mr Theodorou as a result of his demands.[138]  I have not resolved whether these payments were made or not because whether they were or not is consistent with a business relationship and does not shed light on the issue as to whether there was a de facto relationship between the parties.  

    [138]  Exhibit R6 [38]-[40] and [42], [44]-[45].

13. In November 2014, Ms Provatidis was elected deputy mayor of the District Council of Coober Pedy.  Due to the significant time commitment involved she stopped travelling as much and her focus moved from selling opals to her council responsibilities. 

14. Sometimes, when Ms Provatidis was travelling or later when her council work took her away from the shop, Mr Theodorou looked after her shop and left his wife minding their shop at Simos Street. When he did, he would pack up every day and go back to his home at Simos Street and his wife before dinner. One time, Mrs Provatidis looked after her shop when her daughter was overseas and observed Mr Theodorou with the keys and security access codes. I do not consider this indicates their relationship was more than a business one and friendship.  He needed the keys to lock up.

    Andamooka Trips

15. Ms Provatidis travelled to Andamooka with Mr Theodorou on a number of occasions on business. Mrs Theodorou recalled three occasions when Ms Provatidis came with her and her husband.  When Mr Theodorou did not travel with his wife he stayed at the Tuckerbox with his male friend in the same room.  Mrs Theodorou and Ms Provatidis stayed in more salubrious accommodation at the motel. 

    No Personal Financial Dependence

16. Apart from their business relationship selling opals, the parties did not own any property together, hold joint bank accounts or share living expenses.   Mr Theodorou’s Medicare card lists his wife, and he has never nominated Ms Provatidis in any health fund.  Ms Provatidis’ tax returns did not indicate she was in a de facto relationship with anyone.

    No Mutual Commitment to a Shared Life

    Big Stories, Small Towns

17. In the documentary “Big Stories, Small Towns” made in 2014, Mr Theodorou is filmed at the opal cutting and polishing machinery at Hutchison Street saying:

    I actually work with a business partner as well and we buy rough opal from the miners and then we cut and polish the stones and set into jewellery for the shop.

    We’re working about, yeah, 17, 18 years.  It’s been good, good partnership.  I have partners in the past, but not like Michelle is.

18. Ms Provatidis’ counsel submitted this was important evidence of the emotional attachment and love Mr Theodorou clearly displayed for Ms Provatidis, showing there was much more than a business relationship here. This submission overstates matters.  The video was clearly staged, and the innuendo is equivocal.

    Name Day Dinner and Text

19. On 16 August 2014, Mr Theodorou sent Ms Provatidis a text message in Greek.  The circumstances and an accurate translation of the text were disputed.  In Ms Provatidis’ written evidence she said translated it meant:  “Thank you very much for a beautiful night…I will love you forever…M…”.[139] In cross-examination, when it was suggested she had been out to dinner with Mr and Mrs Theodorou to celebrate their daughters’ name day on the previous evening, Ms Provatidis gave evidence that it was her name day and she had been out with only Mr Theodorou and she had paid.  In a notably unsatisfactory exchange between Ms Provatidis and Mr Theodorou’s counsel on the topic of this email, [140] I formed the strong impression that she was dissembling about whether her name day was the reason for the occasion.  In the end, she agreed it was also the Theodorou daughters’ name day.  I found her denials that Mrs Theodorou was there untrue, as was her answer she did not know if there were about eight ways in which the word “love” was used in the Greek language, given her earlier claim to have been a Greek interpreter for Centrelink.[141]  

    [139] Exhibit R6 [41].

    [140]  T152.26-156.37.

    [141]  T156.9-.37.

20. I unreservedly preferred Penny’s evidence on the topic.  She told me that in Greek culture the celebration of one’s name day is a very significant family occasion and she confirmed that 15 August was both her and her sister’s name day.  When shown the text sent the following day, Penny read it out in Greek and then translated it as follows.[142]

    A.   But that word is jumbled. In my understanding that's 'efcharisto', but it's not complete (DEMONSTRATES), but in translation is 'efcharisto' is 'Thank you. Great night. I'll thank you forever' or 'I'll be forever grateful'; that's the two translations.             

    
    
    

    [142]  T276.37-277.4.

21. When asked if the word “love” appeared in the text Penny said:[143]       

    [143]  T278.1-.10.

    Q.   Does the word 'love' appear in there.

    A.   Not in its full sense, no, the word 'love' is not there.

    Q.   When you say 'not in its full sense', in any sense.

    A.   Well, you have got two letters from 's'agapó' in there.

    Q.   What does that word mean.

    A.   That's the 'AY' so 's'agapó' means either 'I care about you, I love you, I like you'. We use in the context of friends.

    Q.   What about 'forever', does the word 'forever' appear.

    A.   Yes, it does.

22. Accepting Mrs Theodorou’s evidence that all three of them were at dinner at a Chinese restaurant,[144] this text message is not evidence of a romantic or loving relationship between the sender and receiver in the sense of sexual or life partners.  I find it is the sort of effusive message one would send a close family friend after a lovely night out, especially when Mrs Theodorou was at dinner with them.  I reject as fanciful Ms Provatidis’ counsel’s submission that this text honestly showed his true emotions towards her and that he loved her and would love her forever to the point that once she finally rejected him and broke up the relationship, he would seek revenge, as he has done by instituting this proceeding.[145]

    [144]  T403.23-.24.

    [145]  T428.3-.9.

    15 March 2015 Text

23. Ms Provatidis gave evidence of a text sent to her by Mr Theodorou in Greek on 15 March 2015 and said it meant in English:[146]

    Please forgive me michelaki for everything I thought you still loved me a bit?? And again I apologies I won’t bother you ever again Good night …m…

    [146] Exhibit R6 [46].

24. Penny was asked to translate the text and she read it out as meaning:

    Sorry, Michelle for everything. I thought that you still cared about me a bit and, again, sorry, I will not bother you again. Good night

25. Mr Theodorou was asked to read it out in English twice in cross-examination.  The first time he said:  “Sorry Michelle for everything.  I thought we still like being a bit and again I'm sorry.  We can't bother you anymore.  Goodnight”.[147]   The second time, when he read it in English, he used the word “love” instead of “like”.[148]  He explained that he had sent it when Ms Provatidis got angry with him for harassing him over the collection of some jewellery he had made for her mother that her father eventually collected.  I have no reason to disbelieve Mr Theodorou’s evidence as to the context in which it was sent.  He was not defensive about the topic or embarrassed about the language he used.

    [147]  T316.30-.34.

    [148]  T333.31-.34.

    Solace and Comfort

26. As I have said before,[149] I found Ms Provatidis’ account of her support of Mr Theodorou following the news of his brother’s death in a car accident in September 2004 grossly exaggerated, and to the extent she was supportive or served coffee to people paying their condolences to his family or attended the funeral with her father, it does not signify a mutual commitment to a shared life with Mr Theodorou as a couple living together on a genuine domestic basis.

    [149] See above [63]-[69].

27. Ms Provatidis’ claims she provided loving support to Mr Theodorou when he was unwell[150] is entirely unsubstantiated and I doubt the veracity of her evidence to this effect.  Cooking him chicken soup when he had a cold and buying him haemorrhoid cream in the course of a 17 or 18-year working relationship and friendship is not probative of a relationship of a couple living together on a genuine domestic basis in the circumstances of this case as I have found them. 

    [150] Exhibit R5 [24].

    Breakdown of their relationship

28. On Mr Theodorou’s account, their relationship finally came to an end for a number of commercial reasons.  After Ms  Provatidis returned from an overseas selling trip and the sale proceeds did not justify the expenses incurred, he was unhappy with their arrangement.  When Ms Provatidis joined the local council her focus on selling opals changed until she was not selling anything for him at all.  

29. On Ms Provatidis’ account, she tried to leave an unhappy, controlling and dysfunctional de facto relationship, and when she did Mr Theodorou stalked her and sent her abusive texts threatening to kill her because she had rejected him.  She finally succeeded in doing so in about June 2015.[151] 

    [151]  Exhibit R6 [37], [43], [48]-[56].

30. The abusive and threatening texts were not produced when called for.  There was no objective evidence to support any of Ms Provatidis’ allegations in this regard, which were categorically denied by Mr Theodorou.[152]  

    [152]  T380-381.

31. In all the circumstances, there is no substance to the submission made by Ms Provatidis’ counsel that Mr Theodorou was wounded by her rejection of his love and instituted this proceeding as revenge, deliberately delaying in taking steps to get his property back because he was waiting until the limitation period for seeking relief under the Family Law Act passed.  The latter theory was debunked by the letter Mr Theodorou’s solicitors sent in October 2015 proposing a meeting for her to return unsold stock and a final accounting.[153]

    CONSIDERATION

    [153]  Exhibit A34.

    “A couple living together on a genuine domestic basis”

32. The touchstone of the statutory test in s 4AA of the Family Law Act for finding the parties were in a de facto relationship is that the parties were “a couple living together on a genuine domestic basis.”

33. The legislation recognises that people do have affairs and de facto relationships within marriage.  Accepting that parties to a de facto relationship may only live in the same residence for a small part of the time or maintain separate residences, it is nonetheless fundamental that the nature of the parties’ relationship in all the circumstances be that of a couple living together on a genuine domestic basis.  

34. Whilst the composite picture on the evidence of all the circumstances is the only way to determine whether the statutory test is satisfied, in the absence of cogent evidence that the parties were a couple and lived together and did so on a genuine domestic basis, there can be no de facto relationship.  As Cronin J put it in Taisha v Peng:[154]

    Turning then to the two requirements. The applicant must establish that the parties were a couple and then establish that the couple lived together in a domestic relationship. The word “genuine” in my view, adds nothing to the definition.

    …

    But there must still be evidence of a domestic relationship. Mushin J in Moby and Shulter at para 167 said it was not a term of art but had to be given its ordinary meaning. I respectfully also adopt that because, having regard to s 4AA(4), the Court can take a wide discretionary view of the way in which the parties themselves conducted their relationship. Even having said that however, a domestic relationship must be one in which there are activities of running a household or shared households. That is, something must be seen to be related to domesticity which refers to home conditions and arrangements. For example, it could be indicated by people coming and going as if entitled to use and share the home’s facilities which is quite distinct from a boarding house or backpacking hostel where individuality reigns.

    [154] (2012) 296 FLR 350 at [15] and [20].

35. In this case, there is no credible evidence the parties ever lived together as a couple on a genuine domestic basis.  The evidence shows that when he was in Coober Pedy, Mr Theodorou lived at Simos Street and cohabitated with his wife from 1998 on a full-time basis, with his daughter Penny and boyfriend Ryan, his son Nick and his brother living with them for significant periods over the 17 years in issue.  The Theodorou family shared the domestic chores in maintaining their family home at Simos Street.  Ms Provatidis did not live there and was not involved in the domestic arrangements at Simos Street.

36. There were times when Mr Theodorou was alone at Simos Street (such as the time his brother died in a car accident in 2004) when neither Penny nor Mrs Theodorou could see who else may have been there.  But that was not Ms Provatidis’ case. She did not claim she lived at Simos Street with Mr Theodorou. 

37. Nor was it Ms Provatidis’ case that Mr Theodorou spent the night with her at either Olympus Crescent or Hutchison Street whenever there was opportunity because his family was absent. In any event, that possibility would not, in all the circumstances of this case as I have found them, satisfy the statutory test of a couple living together on a genuine domestic basis.  There was no credible evidence of Mr Theodorou living at either of Ms Provatidis’ homes in a domestic relationship.  There was no suggestion he left clothes there or even a toothbrush. And Mr Theodorou vehemently denied he ever spent the night with Ms Provatidis anywhere, let alone at any of her homes.

38. The contributions Mr Theodorou made to renovations at Olympus Crescent and Hutchison Street were not made for the purpose of improving or maintaining a shared home for Ms Provatidis and him to enjoy.  He did this work with others (Nick, Eric and his daughter Maria) to help out a friend in their small close-knit community.

39. Generally, the time Mr Theodorou and Ms Provatidis spent together at either Simos Street or Hutchison Street was when they were working.  That both premises comprised co-joined business and residential areas did not mean they lived together.  Nor did their sharing meals with one another and their family members during or after work.  They shared a passion for opals and their different skills complemented what started out as Mr Theodorou teaching Ms Provatidis how to cut and polish opals and evolved into a business arrangement with her selling opals for him for their joint profit.  The nature of their relationship concerning opals was not as domestic partners living together as a couple.  It was a business relationship and became a friendship that Mr Theodorou shared with his family generally.

40. Outside their business dealings with opals, the parties did not purchase any property for their common use or intermingle their financial affairs. Whilst Mr Theodorou did the renovation works at Olympus Crescent and Hutchison Street for free (as did the others involved), Ms Provatidis paid for the materials.  He helped out a family friend and business partner.  Whilst, with hindsight, the way in which they conducted their business dealings might be described as loose, it does not indicate a mutual commitment to a shared life in the requisite sense.  The existence of receipts suggests otherwise.

41. The parties did not holiday together. 

42. The evidence shows that the parties did not display any mutual commitment to a shared life as a couple. As I have said, Ms Provatidis grossly exaggerated the support she gave Mr Theodorou when his brother died in a car accident and the significance of the two text messages upon which she relied to show that Mr Theodorou had a significant emotional attachment to her.  The evidence there was indicated a friendship that arose from a business relationship.

43. There is no credible evidence that the parties presented themselves as a couple in Coober Pedy. When they socialised at the Greek Club, they did so with Mr Theodorou’s family and their friends.  They were members of its organising committee. When they shopped together, they did so for functions at the Greek Club because they were committee members. When they worked behind the bar together at the Greek Club, they did so as active members of the Greek community who had assumed responsibility to do so as committee members.

1. Accordingly, I have concluded that in all the circumstances of this case, the parties were not in a de facto relationship with one another at any time.

2. I will hear the parties as to costs.