Trakimaite v Aubertin - [2024] FedCFamC2G 1150

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Trakimaite v Aubertin [2024] FedCFamC2G 1150

File number(s): SYG 1114 of 2021

Judgment of: JUDGE CAMERON

Date of judgment: 8 November 2024

Catchwords: HUMAN RIGHTS – Sex Discrimination Act 1984 (Cth) – sexual harassment – sex discrimination – where applicant was an employee of the second respondent – where applicant and first respondent engaged in a consensual and non-exclusive sexual relationship – where first respondent was principal of second respondent – whether the first respondent sexually harassed the applicant – whether applicant’s employment with second respondent was terminated on the basis of her pregnancy

Legislation:
Australian Human Rights Commission Act 1986 (Cth) ss 46PO, 46PSA

Fair Work Act 2009 (Cth) s 125

Sex Discrimination Act 1984 (Cth) ss 5, 7, 14, 28A, 28B, 106

Cases cited:
Hughes v Hill (2020) 277 FCR 511

Richardson v Oracle Corporation Australia Pty Ltd (2013) 232 IR 31

Division: General

Number of paragraphs: 146

Date of last submission/s: 8 May 2023

Date of hearing: 30 – 31 January 2023

Place: Sydney

Counsel for the Applicant: Mr L Finch(Direct Brief)

Counsel for the First and Second Respondents: Ms T Wong

Solicitor for the First and Second Respondents: Mills Oakley
ORDERS

SYG 1114 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
SONATA TRAKIMAITE

Applicant

AND:
RICHARD DESIRE AUBERTIN

First Respondent

AXE CONSTRUCTION GROUP ACN 631 236 274

Second Respondent

ORDER MADE BY:

JUDGE CAMERON

DATE OF ORDER:

8 NOVEMBER 2024

THE COURT DECLARES THAT:
1.The first respondent sexually harassed the applicant on 31 October 2020.
2.The second respondent is vicariously liable for the first respondent’s sexual harassment of the applicant.

THE COURT ORDERS THAT:
3.Judgment for the applicant against the respondents jointly for $25,000.
4.The matter stand over for submissions on costs.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CAMERON
INTRODUCTION

On 21 June 2021, following the termination of a complaint she had made to the Australian Human Rights Commission (Commission), the applicant, Ms Trakimaite, filed the present application. She alleges that during her employment from 20 August 2020 to 29 December 2020 as an office administrator with the second respondent, Axe Construction Group Pty Ltd (Axe Construction), she engaged in a consensual and non-exclusive sexual relationship with the first respondent Mr Aubertin, who was the sole owner and director of Axe Construction, which resulted in her falling pregnant in late 2020. Ms Trakimaite alleged that on one occasion in October 2020, in contravention of the Sex Discrimination Act 1984 (Cth) (SD Act), Mr Aubertin had sexually harassed her and induced her to have sexual intercourse with him on pain of losing her job. She also alleged that in December 2020, in contravention of the SD Act and the Fair Work Act 2009 (Cth) (FW Act), Mr Aubertin had discriminated against her because of her pregnancy and subsequently terminated her employment with Axe Construction. The claims under the FW Act were later abandoned. Ms Trakimaite’s application sought declarations, compensation and interest in addition to general and aggravated damages in respect of past and future medical costs, loss of income and psychological harm.
The respondents denied that Mr Aubertin had engaged, during the course of the parties’ relationship, in any of the alleged contravening conduct. The respondents alleged that Ms Trakimaite was not dismissed from her employment with Axe Construction but had elected to terminate it.
AGREED FACTUAL BACKGROUND
The parties agreed that:
(a)between 2016 and 18 August 2020 Ms Trakimaite and Mr Aubertin came to know each other socially;
(b)on 20 August 2020 Ms Trakimaite commenced employment with Axe Construction pursuant to an oral contract;
(c)during her employment with Axe Construction, Ms Trakimaite also worked at Marbrand Pty Ltd, trading as The Men’s Gallery;
(d)Ms Trakimaite’s $23.07 initial hourly pay rate at Axe Construction was increased to $28 on 1 December 2020;
(e)Ms Trakimaite worked the following hours in the period 20 August 2020 to 22 December 2020:

Week Gross Pay Hours worked

17/08/2020 – 23/08/2020 $207.69 9

23/08/2020 – 30/08/2020 $484.61 21

31/08/2020 – 06/09/2020 $461.54 20

07/09/2020 – 13/09/2020 $253.85 11

14/09/2020 – 20/09/2020 $461.54 20

21/09/2020 – 27/09/2020 $542.31 23.5

28/09/2020 – 04/10/2020 $473.08 20.5

05/10/2020 – 11/10/2020 $484.62 21

12/10/2020 – 18/10/2020 $357.69 15.5

19/10/2020 – 25/10/2020 $634.62 27.5

26/10/2020 – 01/11/2020 $415.38 18

02/11/2020 – 08/11/2020 $473.08 20.5

09/11/2020 – 15/11/2020 $599.82 26

14/09/2020 – 20/09/2020 $461.54 20

16/11/2020 – 24/11/2020 $530.61 23

23/11/2020 – 29/11/2020 $938.00 33.5

30/11/2020 – 06/12/2020 $1,022 36.5

07/12/2020 – 13/12/2020 $602.00 21.5

14/12/2020 – 20/12/2020 $994.00 35.5

21/12/2020 – 27/12/2020 $280.00 10
(f)Ms Trakimaite’s 2021 income tax return identifies her gross wages for that financial year as $40,428 comprising;
(i)$10,261 from Axe Construction; and
(ii)$30,212 from Marbrand Pty Ltd;

(g)Ms Trakimaite’s 2022 income tax return identifies her gross wages for that financial year as $38,607 comprising;
(i)$4,550 from Laser Clinics Australia;
(ii)$180 from Glitnir Pty Ltd;
(iii)$9,374 from Taqiza Mexican Pty Ltd;
(iv)$24,503 from Marbrand Pty Ltd;

(h)between 28 August 2020 and 30 December 2020 Ms Trakimaite had an office key and security card; and
(i)by 30 December 2020 Ms Trakimaite had informed Mr Aubertin that she was pregnant and believed him to be the father of her unborn child.

PLEADINGS
Applicant

In a second further amended statement of claim filed on 27 May 2022, Ms Trakimaite contended that:
(a)Mr Aubertin had sexually harassed her contrary to ss.28A & 28B of the SD Act;
(b)Mr Aubertin had discriminated against her on the grounds of her pregnancy contrary to ss.7(1)(a) and 14(2)(c) of the SD Act; and
(c)under s.106 of the SD Act Axe Construction was vicariously liable for those unlawful acts of Mr Aubertin.
Background
It was alleged that:
(a)in August 2020, Ms Trakimaite commenced work as a permanent part-time bookkeeper with Axe Construction, Mr Aubertin saying to her:
Ravina [Gahlac] will set you up in the system with your pay rate and after three months I will pay you more. I don 't know how many hours you will work but it will depend on how much work there is, it will be around 3 days per week, if it gets busy I will need you to work full time.
(b)Ms Trakimaite’s probationary period of 3 months concluded in November 2020 and she continued her employment with Axe Construction; and
(c)at all relevant times, Ms Trakimaite was also employed as a waitress at The Men’s Gallery.
Sexual Harassment Claim
Ms Trakimaite alleged that:
(a)on or around 1 October 2020 she and Mr Aubertin commenced a sexual relationship;
(b)on 31 October 2010 she twice refused Mr Aubertin’s invitation to have sex before subsequently agreeing, and having sex, because his conduct caused her to fear that she would lose her job if she did not;
(c)from 31 October 2020 to 22 December 2020 she and Mr Aubertin continued their sexual relationship, having sex around once per week at Mr Aubertin’s home and on one occasion at Ms Trakimaite’s; and
(d)she was employed by Axe Construction until 30 December 2022.
Ms Trakimaite alleged that by reason of his conduct on 31 October 2020:
(a)Mr Aubertin sexually harassed her within the meaning of s.5 of the SD Act in that:
(i)he made a demand for sexual intercourse which she initially refused;
(ii)he threatened to terminate her employment and she subsequently has sex with him but did not consent or agree to it voluntarily or freely; and
(iii)having had sexual intercourse she continued to be employed by Axe Construction;
(b)Mr Aubertin had made an unwelcome sexual advance, or in the alternative an unwelcome request for sexual favours, which he knew or ought to have known would offend, humiliate or intimidate her, amounting to sexual harassment within the meaning of ss.28A of the SD Act and had therefore contravened s.28B of the SD Act.
Discrimination Claim
Ms Trakimaite also alleged that:
(a)on or around 19 November 2020, she and Mr Aubertin engaged in consensual sexual intercourse without a condom;
(b)between 1 October 2020 and 19 November 2020 she had sex only with Mr Aubertin;
(c)on 22 December 2020 she told Mr Aubertin that she was pregnant with his child;
(d)on 24 December 2020, she underwent tests at Bondi Junction 7 Day Medical Centre which confirmed that she was pregnant. On the same day, Mr Aubertin asked her to terminate the pregnancy in a text message saying:
Sonata don't ever talk to me like that your on your own I want you to abort this baby your crazy.
(e)Mr Aubertin told her when she attended his home at around 8pm on 29 December 2020 that he would not support her if she carried through with the pregnancy and told her to “get out”;
(f)over 29 and 30 December 2020 Mr Aubertin demanded that she return the Axe Construction office keys to him and sent her text messages such as:
your now on your own I want nothing to do with this bullshit good keep out of my life fuck off;
(g)at around 11:50am on 30 December 2020 Mr Aubertin attended her home and demanded that she return the office keys to him and knocked his fists aggressively on her front door. Ms Trakimaite returned the office keys to Mr Aubertin by pushing them under the front door of her flat;
(h)at 11:58am on 30 December 2020 she sent Mr Aubertin a text message saying:
Please send me termination letter;
(i)on 14 January 2021 she sent Mr Aubertin copies of a urinalysis test result and an ultrasound image confirming her pregnancy and a message that read:
maybe I’ll cancel my appointment tomorrow, I think I need to talk to Psychologist first.
Mr Aubertin replied saying:
Its your life not mine I will now block you as you are being incredibly difficult;
(j)in or around early January 2021 Mr Aubertin employed a replacement bookkeeper.
Relief Sought
Ms Trakimaite sought declarations that:
(a)Mr Aubertin had sexually harassed her;
(b)Mr Aubertin had discriminated against her on the ground of her pregnancy; and
(c)Axe Construction is vicariously liable for Mr Aubertin’s breaches of the SD Act.
Ms Trakimaite also sought orders that:
(a)Mr Aubertin pay her:
(i)$100,000 for general damages;
(ii)$50,000 for aggravated damages;
(iii)$30,000 for psychological damage;
(iv)$30,000 for loss of income; and
(v)$10,000 for past and future medical expenses;
(b)Axe Construction:
(i)pay her compensation of $50,000 for general damages; and in the alternative
(ii)be held jointly and severally liable for the payment of the sums ordered to be paid by Mr Aubertin;
(c)the respondents be jointly and severally liable to pay her:
(i)interest on the judgment; and
(ii)her costs of the proceeding.
Response
The respondents filed a further amended response on 16 September 2022. They denied that Mr Aubertin had sexually harassed or discriminated against Ms Trakimaite. They alleged that all sexual conduct between Ms Trakimaite and Mr Aubertin had been consensual and voluntary, and denied that Mr Aubertin had threatened to terminate Ms Trakimaite’s employment. They denied that Mr Aubertin had engaged in any contravening conduct for which Axe Construction could be held vicariously liable.
The respondents alleged that:
(a)Ms Trakimaite and Mr Aubertin first met at a Sydney bar in April 2016, exchanged mobile numbers and social media information and thereafter occasionally ran into each other;
(b)Ms Trakimaite and Mr Aubertin discussed the staffing needs of Axe Construction on 18 August 2020, and on 19 August 2020 Ms Trakimaite expressed to Mr Aubertin her interest in working for Axe Construction as an office administrator;
Employment
(c)Ms Trakimaite worked for Axe Construction as a casual office administrator under an oral contract and subject to a six-month probationary period. She was initially hired at an hourly rate of $23.07. She did not have fixed hours and accordingly was to fill out a ledger with her hours worked each day;
(d)Ms Trakimaite had advised Mr Aubertin that she remained employed at The Men’s Gallery;
(e)Ms Trakimaite was provided with the keys and security card for Axe Construction’s offices.
Sexual Relationship
(f)on 20 September 2020 Mr Aubertin and Ms Trakimaite had sexual intercourse at Mr Aubertin’s home and engaged in a non-exclusive romantic and sexual relationship from that time until 29 December 2020. Consistent with that relationship, Mr Aubertin and Ms Trakimaite:
(i)exchanged a series of text messages, videos and photos of each other between 18 August 2020 and 13 March 2021;
(ii)spent substantial time together including at social gatherings, at their homes and went on a number of dates;
(iii)had intercourse on 12 different occasions between 27 September 2020 and 29 December 2020.
Sexual Harassment claim
The respondents denied Ms Trakimaite’s version of the events of 31 October 2020 and alleged that:
(a)between 2:25pm and 7:23pm Ms Trakimaite and Mr Aubertin engaged in a series of text messages;
(b)the alleged first and second refusals by Ms Trakimaite to have sexual intercourse were consistent with their sexual and romantic relationship;
(c)Mr Aubertin did not threaten Ms Trakimaite’s’ job security, but did raise the difficulty of navigating a romantic and sexual relationship while also working together; and
(d)Ms Trakimaite attended Mr Aubertin’s home later that day and they had sex as was consistent with their sexual and romantic relationship.
Discrimination claim – pregnancy
The respondents denied that Mr Aubertin had discriminated against Ms Trakimaite on the ground of her pregnancy and alleged that:
(a)when Ms Trakimaite advised Mr Aubertin on 22 December 2020 that she was pregnant he suggested that they marry, that Ms Trakimaite continue with the pregnancy and that together they would raise the baby;
(b)there were extenuating circumstances that explained why on Christmas Eve 2020 he had sent her a text message saying:
Sonata don’t ever talk to me like that your on your own I want you to abort this baby your crazy;
(c)on 27 December 2020 Ms Trakimaite and Mr Aubertin met at a café where Ms Trakimaite sought compensation of $20,000 and a termination letter;
(d)Ms Trakimaite visited Mr Aubertin’s home uninvited on 29 December 2020 with a friend Inna Jankovic, as a result of which the tone of his text messages to her changed; and
(e)on 14 January 2021 Ms Trakimaite provided Mr Aubertin with copies of medical reports and ultrasounds dated 30 December 2020 which reported a pregnancy of seven weeks and three days.
The respondents alleged that upon the breakdown of the romantic and sexual relationship and Ms Trakimaite’s request for compensation and the termination of her employment on 27 December 2020, Mr Aubertin told Ms Trakimaite that she should proceed with terminating the pregnancy.
Termination of employment
The respondents alleged that:
(a)Ms Trakimaite’s last day working for Axe Construction was 22 December 2020;
(b)on 27 December 2020; Ms Trakimaite made her requests for $20,000 and a termination letter;
(c)on 30 December 2020 Ms Trakimaite made a further request for a termination letter and returned the office keys to Mr Aubertin at his request;
(d)on 31 December 2020 Ms Trakimaite made a further request for a termination letter;
(e)in January 2021 Axe Construction employed another office administrator.
LEGISLATION
At all material times, the Sex Discrimination Act 1984 (Cth) provided relevantly:
7        Discrimination on the ground of pregnancy or potential pregnancy
(1)For the purposes of this Act, a person (the discriminator) discriminates against a woman (the aggrieved woman) on the ground of the aggrieved woman’s pregnancy or potential pregnancy if, because of:
(a)the aggrieved woman’s pregnancy or potential pregnancy; or
(b)a characteristic that appertains generally to women who are pregnant or potentially pregnant; or
(c)a characteristic that is generally imputed to women who are pregnant or potentially pregnant;
the discriminator treats the aggrieved woman less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat someone who is not pregnant or potentially pregnant.
(2)For the purposes of this Act, a person (the discriminator) discriminates against a woman (the aggrieved woman) on the ground of the aggrieved woman’s pregnancy or potential pregnancy if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging women who are pregnant or potentially pregnant.
…
14       Discrimination in employment or in superannuation
(1)It is unlawful for an employer to discriminate against a person on the ground of the person’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities:
(a)in the arrangements made for the purpose of determining who should be offered employment;
(b)      in determining who should be offered employment; or
(c)      in the terms or conditions on which employment is offered.
(2)It is unlawful for an employer to discriminate against an employee on the ground of the employee’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities:
…
(c)      by dismissing the employee; or
…
28A     Meaning of sexual harassment
(1)For the purposes of this Division, a person sexually harasses another person (the person harassed) if:
(a)the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
(b)engages in other unwelcome conduct of a sexual nature in relation to the person harassed;
in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.
(1A)For the purposes of subsection (1), the circumstances to be taken into account include, but are not limited to, the following:
(a)the sex, age, sexual orientation, gender identity, intersex status, marital or relationship status, religious belief, race, colour, or national or ethnic origin, of the person harassed;
(b)the relationship between the person harassed and the person who made the advance or request or who engaged in the conduct;
(c)any disability of the person harassed;
(d)any other relevant circumstance.
(2)      In this section:
conduct of a sexual nature includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.
28B     Employment, partnerships etc.
(1)      It is unlawful for a person to sexually harass:
(a)      an employee of the person; or
(b)      a person who is seeking to become an employee of the person.
(2)It is unlawful for an employee to sexually harass a fellow employee or a person who is seeking employment with the same employer.
…
(6)It is unlawful for a workplace participant to sexually harass another workplace participant at a place that is a workplace of either or both of those persons.
(7)      In this section:
place includes a ship, aircraft or vehicle.
workplace means a place at which a workplace participant works or otherwise carries out functions in connection with being a workplace participant.
workplace participant means any of the following:
(a)      an employer or employee;
(b)      a commission agent or contract worker;
(c)      a partner in a partnership.
…
106     Vicarious liability etc.
(1)Subject to subsection (2), where an employee or agent of a person does, in connection with the employment of the employee or with the duties of the agent as an agent:
(a)an act that would, if it were done by the person, be unlawful under Division 1 or 2 of Part II (whether or not the act done by the employee or agent is unlawful under Division 1 or 2 of Part II); or
(b)an act that is unlawful under Division 3 of Part II;
this Act applies in relation to that person as if that person had also done the act.
(2)Subsection (1) does not apply in relation to an act of a kind referred to in paragraph (1)(a) or (b) done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing acts of the kind referred to in that paragraph.
...

The Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) relevantly provides:
46PO Application to court if complaint is terminated
…
(4)If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:
…
(d) an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;
…
APPLICANT’S EVIDENCE
Sonata Trakimaite
Ms Trakimaite’s evidence was that she had known Mr Aubertin socially since 2018. She deposed that on 18 August 2020 she had a conversation with Mr Aubertin where they discussed him hiring her as a receptionist and on 19 August 2020 she contacted him by text to express her interest in employment.
Employment
On 20 August 2020 Ms Trakimaite attended Axe Construction’s office to undertake office administration training with Ms Gahlac.
Office Keys and Security Card
Ms Trakimaite deposed that when she attended the Axe Construction office for work between 20 August 2020 and 28 October 2020 she would wait at the reception for Ms Gahlac or Mr Aubertin to let her in. Ms Trakimaite’s evidence was that at the end of Ms Gahlac’s final working day on 28 October 2020 she was given her office keys and security card.
Sexual Relationship
Ms Trakimaite’s evidence was that on 30 September 2020 she and Mr Aubertin exchanged the following text messages:
Mr Aubertin:    Can I come over for cuddles
Ms Trakimaite: haha Cheeky
Mr Aubertin:    Sorry babe I'm horny
Ms Trakimaite: I think I have a bit of flu lol
Mr Aubertin:    What ever is yours is mine baby Did-do
Ms Trakimaite: And what I'll tell to my flatmate lol Lets do it next time. I'm a bit dead after gym.
Mr Aubertin:    Your going to regret saying no to me tomorrow ha
Ms Trakimaite: You will punish me
Mr Aubertin:    You we both want each other so much. Sexy girl I have been totally in control till now I'm about to unleash the Lion your in trouble. See you in the office tomorrow.
She deposed that at around 11:30pm on 1 October 2020, she attended Mr Aubertin’s house and they had sex.
31 October 2020
Text messages and telephone calls
Ms Trakimaite deposed that when she was travelling home from a MYOB course on 31 October 2020, Mr Aubertin sent her the following text messages:
Would you like a little French in you tonight I'm free
…
Just cum meet me at home after your studies fuck and go home
and at 4:29pm they had a telephone conversation:
…
Ms Trakimaite: … What did you do today?
Mr Aubertin:    I didn't do much, just thought about you all day.
Ms Trakimaite: (laughs)
Mr Aubertin:    Come to mine tonight.
Ms Trakimaite: I don't know I'm really tired.
Mr Aubertin:    Come on just come.
Ms Trakimaite: No, I've been at the course all day and I've got to go to work. I just want to rest.
Mr Aubertin:    Ok well fuck off then.
Her evidence was that when the phone call concluded, they exchanged further text messages in which Mr Aubertin continued his importunings, only to be deflected by Ms Trakimaite suggestions that they go to the cinema or alternatively rendezvous the next day. Mr Aubertin responded texting:
Mr Aubertin: There are plenty of bitches in Sydney babe
Ms Trakimaite: Are you angry on me that I'm not coming. I need to rest before work.
Mr Aubertin: I'm telling you never disrespect me never good night
Ms Trakimaite: I'm not, why y think that
Ms Trakimaite deposed that she called Mr Aubertin at 5:06pm because she wanted things to be resolved as he was her employer but he hung up on her. Her evidence was that they continued to exchange text messages in which she expressed her perplexity at his attitude, including his statement that she did not respect him, his response being to tell her that she should go off to her shift at The Men’s Gallery and that she was “finished”.
Ms Trakimaite deposed she called Mr Aubertin at 5:31pm and they said:
Ms Trakimaite: Richard what do you mean finished
Mr Aubertin: You're finished that's it
Ms Trakimaite: But what do you mean.
…
Ms Trakimaite: Please don't be angry, its no reason to treat me this way. I don't feel I did something wrong to you for you to talk to me like that. I'm really sorry I don't feel like coming to you. I have work tonight.
Mr Aubertin: Just come over we will have fun
Ms Trakimaite: I just don't want to because you're gonna make me have sex with you
Her evidence was Mr Aubertin then hung up the phone and sent her a text message at 5:37pm which read:
I don't think we can work together anymore
Ms Trakimaite’s evidence was that, given their conversation and Mr Aubertin hanging up on her, she believed that if she did not do what Mr Aubertin wanted he would dismiss her. She said in cross-examination that it was clear to her that Mr Aubertin had not been speaking about their personal relationship but about her employment. She considered that it was a threat that if she did not go to Mr Aubertin’s house she would lose her job. She said that this exchange was qualitatively different from text messages bantering about sex that they had exchanged a month earlier. She said:
That it looked, yes, he was joking, but this time on 31 October he hung up on me and the way he was talking, you know, “You need to respect my demands,” it didn’t look that that was a joke.
However, she agreed that a subsequent exchange on 4 November 2020, in which Mr Aubertin invited her in a different context to “make it up” to him, did not make her feel threatened.
Ms Trakimaite deposed that she called Mr Aubertin at 5:38pm and repeatedly told him that she was tired and that she had to work. Her evidence was they had a conversation to the effect of:
Ms Trakimaite: Richard don't force me to come there. Please relax. Maybe next time. Im just so hungry and I need to cook for myself dinner and I also want to rest a little bit. lve been at the course all day.
Mr Aubertin:    Come over I'll order some food for you as well. What do you want?
Ms Trakimaite: Oh Richard I really don't want to. I just wanna rest now.
Mr Aubertin:    I'm doing all these things for you. Give you money and a job and you're not being good to me.
Ms Trakimaite: Come on don't be like that. Please stop being like this. I don't think you're going to like my company anyway because im tired and boring and quiet.
Mr Aubertin:    I don't care, just come. I want you I miss you. I'm feeling lonely tonight.
Ms Trakimaite: Ok ok I'll come
Mr Aubertin:    Ok I'll call you an uber when you're ready
Her evidence was that she called Mr Aubertin regarding him booking her an Uber to pick her up and they had a further telephone conversation to the following effect:
Ms Trakimaite: Richard it's getting late I've been waiting. I'm very hungry. I really can't come tonight.
Mr Aubertin:    What's your address again babe?
Ms Trakimaite: I'll text you the address
Mr Aubertin:    Ok.
Ms Trakimaite: Richard I'm really not comfortable coming over. I'm just so tired, and I've been waiting for the uber now for a long time. Can we do this next time.
Mr Aubertin:    no no no im just booking it, I'll do it now. And what do you want to eat.
Ms Trakimaite: Richard please can we make it next time.
Mr Aubertin:    Come over and I'll call the uber now. Just come.
Ms Trakimaite said:
– with those other times, if I would say no, he would be all right with that, but this thing was – this day was different and he looked angry, and that made me scared.
Events at Mr Aubertin’s home
Ms Trakimaite’s evidence was that she arrived at Mr Aubertin’s home at around 8pm and they said:
Ms Trakimaite:           I am really very tired and not feeling well - I want to ask you why you said if I don't come we can't work together?
…
Mr Aubertin:              (Laughs)
Ms Trakimaite:           I haven't done anything to you?
Mr Aubertin:              Come on babe just relax I'll get some food now.
…
Ms Trakimaite:           I have makeup on and I have to go to work. I came to have dinner and I did not come to have sex.
…
Ms Trakimaite’s evidence was that Mr Aubertin kissed and hugged her and suddenly carried her to his bed. She deposed:
…
As he was lifting my top off I felt scared because I had said no many times to him but he just kept going. He then opened my denim shorts and pulled them off. I was lying down at the time and he removed my underwear. He laid on top of me and put his penis inside me and as soon as he entered me it hurt because we had no foreplay and I was not interested physically in having sex. I really didn't pay attention to him too much I was just hoping it would finish soon so I can go to work. Previously we had usually had sex in multiple positions but on this occasion I simply laid there and let him have sex with me.
Her evidence was that she and Mr Aubertin then ate together and had a conversation as follows:
…
Mr Aubertin: That was the worst sex I have ever had [said in an angry tone]
Ms Trakimaite: But I told you I didn't want to just come here for sex
Mr Aubertin: Well come back after work
Ms Trakimaite: Alright
Ms Trakimaite deposed that she left Mr Aubertin’s home at around 9:30pm to go to The Men’s Gallery where she worked until 4:19am the next day. There she had a conversation with her co-worker Anais de Caires as follows:
Ms Trakimaite: Look at these messages, I am worried about my job, he said if I didn't have sex he can't work with me anymore.
Ms de Caires: That's terrible, are you going to go back to work?
Ms Trakimaite: I don't know I'm really stressed about this.
The next morning – 1 November 2020
Ms Trakimaite’s evidence was that at 8:13am on 1 November 2020 she called Mr Aubertin and they had a conversation as follows:
Ms Trakimaite: I want to talk to you about how you treated me last night.
Mr Aubertin: Come here and we will talk about it.
Her evidence was that she was concerned about her job because, due to his comments, she felt that she had not satisfied Mr Aubertin sexually.Ms Trakimaite arrived at Mr Aubertin’s house at around 8:30am and she said to him words to the effect of:
I have responsibilities, I need this job, please don't do that again it made me feel terrible and the sex hurt me.
Her evidence was that while she continued to be in a sexual relationship with Mr Aubertin, she was afraid that he might pressure her to have sex or threaten to dismiss her at any time.
4 November 2020
Ms Trakimaite deposed that on the evening of 3 November 2020 she and Mr Aubertin had sex at his home. She deposed that the next day, 4 November 2020, they exchanged the following messages:
Mr Aubertin:    I just took off my shirt babe and I have bruising on me from you. Lucky I love you.
Ms Trakimaite: I have marks from you on my ass and legs. Lucky I love you.
Mr Aubertin:    Lucky your my favourite receptionist
Mr Aubertin:    If was you I would be more concerned about how your going make it up to me.
…
Mr Aubertin:    Perfect beautiful girl sorry for kicking you out last night I will make it up to you Friday xx
…
Mr Aubertin:    Do you want to come spend the night with me I'm lonely and I want you. I will make you dinner.
Ms Trakimaite: But I have my period and I can't drink lol I can't stay till very late as well because have to go to school.
Mr Aubertin:    Babe we can just hug all night long and I will take you to school in the morning. Go home pack your overnight bag and cum over I want to hold you.
Ms Trakimaite: But I'm so so dead. What y cooking?
Her evidence was that despite not feeling comfortable having sex that night, given the events of 31 October 2020, she did not want to make Mr Aubertin angry and so she went to his place around 8pm where they had dinner and sex. She also said that “things went back [to] normal” after 31 October 2020 and that they continued to have a sexual relationship.
Continuation of relationship
Ms Trakimaite deposed that on the evening of 6 November 2020 she and Mr Aubertin had dinner together at a city restaurant and had sex at her home afterwards, which she believed was when she fell pregnant. They also went to dinner on 13 November 2020 and later had sex at Mr Aubertin’s home and on 15 November 2020 they had sex at Palm Beach in his car.
December 2020 - Pregnancy
Ms Trakimaite’s evidence was that 22 December 2020 was the day of the staff Christmas dinner and her last day of work before the Christmas break. That day she took two at-home pregnancy tests which both showed a positive result. Her evidence was that she called Mr Aubertin to tell him she was pregnant and that she then went to his home where they had a conversation:
Mr Aubertin:    What you wanna do?
Ms Trakimaite: I really don't think I can do abortion, I would hate myself for the rest of my life
Mr Aubertin:    Lets have the baby but I'm not going to have a child without marriage
Ms Trakimaite: I don't know this is a big decision and I'm not even with you. Maybe let's try to see each other for a bit and see how well get long ... I can't say yes but I can't say no as well ... It's too much atm I can't even think clearly because I'm still in shock.
Mr Aubertin:    I won't have a bastard child.
Ms Trakimaite: I can't have an abortion. Can we please stop talking about this I need to process everything because it's too much to think about. I haven't even seen a doctor. I don't know what to do.
Mr Aubertin:    Alright, but whatever you do you're on your own.
Ms Trakimaite agreed that all words after the comma in the last quoted sentence did not appear in her chronological summary of events given to the Commission which relevantly said:
ST:I can't have an abortion, can we please stop talking about this I need to process everything because it's too much to think about. I haven't even seen a doctor. I don't know what to do. Get ready and lets go quickly to the dinner with all stuff [recte: staff] .
RA:alright
Ms Trakimaite deposed that later that evening at his home Mr Aubertin told her that he had been dating her friend, Rachel, which made her upset but Mr Aubertin said:
because you’re pregnant this changes everything, I want to be with you.
Ms Trakimaite deposed that on 24 December 2020 she undertook a urinalysis test and a blood test at a medical centre. Her evidence was later that evening, she and Mr Aubertin spoke on the phone and also exchanged a number of text messages that read as follows:
Ms Trakimaite: Did you decided where you want to go?
Mr Aubertin: I'm catching up with Rachel tonight need to chat with her
Ms Trakimaite: You serious? Okay have fun
…
Ms Trakimaite: you choosing her yeah
…
Mr Aubertin: Sonata don’t ever talk to me like that your on your own I want you to abort this baby your crazy
…
Ms Trakimaite: Your very supportive. I'm pregnant to you Richard and you told me we going to be together I really like you and now that you are with Rachel and it's Christmas it's breaking my heart…. I won't kill baby. … I won't do it
Ms Trakimaite deposed that between 24 and 29 December 2020 she and Mr Aubertin continued to discuss what they would do about her pregnancy. On 27 December 2020 they went to a café at Bondi Beach where, according to Ms Trakimaite, they discussed how to address it. Her evidence was that the conversation was amicable and that at no time did she use the word compensation, ask for a specific amount of money or ask for a termination letter. She said that they said:
Ms Trakimaite: I don't know what to do about the baby. What do you think?
Mr Aubertin: I will support you with whatever decision you make
Ms Trakimaite’s evidence was that on 29 December 2020 she attended Mr Aubertin’s home with her friend Inna Jankovic in the hope of convincing him to support her and the child. It seems that during that visit she called Rachel and told her that she was pregnant. At some point during that visit Mr Aubertin was rung by Rachel and Ms Trakimaite answered the call. Ms Trakimaite deposed that she and Mr Aubertin then said:
Ms Trakimaite: Why is she calling you?
Mr Aubertin: You fucking bitch ... I’m sick of all you bitches.
She said that Mr Aubertin became very angry after she answered Rachel’s call on his phone and “kicked [her] out”, stating that he was not going to support her.   Her evidence was that they said:
Mr Aubertin:    No, I'm not going to support you
Ms Trakimaite: But I don't want to do an abortion
Mr Aubertin:    I don't want to talk about this, get out, you're on your own
…
Ms Trakimaite: you go with Rachel, because I don’t want to be with you anymore
She conceded in cross-examination that her complaint to the Commission had not mentioned that she had been shown the door that night.
Ms Trakimaite deposed that after she left Mr Aubertin’s home, they continued to text:
Mr Aubertin: Your nothing but a CUNT fuck off out of my life bitch
…
Mr Aubertin: Your on your own now, fuck off, I want nothing to do with this bullshit, good keep out of my life fuck off
…
Ms Trakimaite: Why what's happening to you. Please don't be this cruel to me. I really don’t do anything bad to you. I’m going true hell. All this emotions killing me.
30 December 2020 - Termination of employment
Ms Trakimaite deposed that on 30 December 2020 she had an ultrasound, after which Mr Aubertin called her and they had a telephone conversation at 11.10am as follows:
Ms Trakimaite: Hello Richard
Mr Aubertin:    Where are you right now
Ms Trakimaite: I'm on my way back home. I'm on the bus. I've just been to the ultrasound. I saw the baby's heart and I can't do abortion. I'm going to have this baby.
Mr Aubertin:    You're a spastic bitch, this is it your not working anymore.
Ms Trakimaite: Don't talk to me like that.
Mr Aubertin:    You're a fucking spastic, you fucking bitch.
Ms Trakimaite: I haven't done anything.
Mr Aubertin:    You were only for sex. I never fucken liked you anyway, Your done with your job. I want the keys back. I'm coming to get them.
At 11.15 that morning, Ms Trakimaite emailed Mr Aubertin saying:
Richard please send me termination leather
Her evidence was that she only asked for a termination letter after he “fired” her. She said:
I wanted in writing what actually the reason is that he fired me.
At 11.17am they exchanged text messages as follows:
Ms Trakimaite: You not allowed to come to my place. Don’t come near me. I’ll call the police if y coming near me
Mr Aubertin: No problem call the police I just want the keys to the office back.
Ms Trakimaite: I’m scared of you the way you were talking to me. Don’t go anywhere near please.
Ms Trakimaite deposed that around 11:30am Mr Aubertin arrived at her home, “banged” on the door, insulted her and shouted at her to give him the office keys. A CCTV recording shows that Mr Aubertin arrived at Ms Trakimaite’s door that day at 11.42am. At 11.43am he says loudly through the front door “you’re a fucking retard”, bangs heavily on the door, says “just give me the keys” and then bangs on the door again three times. Whatever the case, Ms Trakimaite’s evidence was that she felt scared, so she pushed the office keys underneath the door, after which Mr Aubertin left.
At 11.52am, Mr Aubertin replied to Ms Trakimaite’s email of 11.15am saying:
Sonata
I have asked you to forward your Visa documents before could please send them
to which she replied at 11.56 am
Just send it …also can you pay for abortion pls because I don’t have savings.
At 11:58am Ms Trakimaite texted Mr Aubertin saying:
Please send me termination later
At 4.04pm Mr Aubertin emailed:
Sonata
Still I have received nothing from you in regards to your Visa??
At 4.16pm, Ms Trakimaite sent an email to Mr Aubertin saying:
Btw what actually reason you fired me? Because I’m pregnant with your baby?
At 5.06pm Ms Trakimaite texted Mr Aubertin a copy of a document that apparently had notified her that she had been granted a bridging visa. She also wrote:
Hey I left my belt at yours, it’s should be under your couch at living room, I need it so please bring it and leave it at the door whenever you will go this way
Thank.

Then followed two emails, one on 30 December 2020, and second on 31 December 2020 in which Ms Trakimaite asked for a termination letter and $500 for the abortion, following which on 2 January 2021, Mr Aubertin sent her a number of emails which stated inter alia:
To get the fuck out of my life.
…
You are one of the biggest cunts I have ever met and believe me I’ve met many
Ms Trakimaite conceded that Mr Aubertin had never said to her that she would be sacked if she did not have a termination.
January 2021 - Ending pregnancy
Ms Trakimaite deposed that on 4 and 6 January 2021 she sent emails to Mr Aubertin which read inter alia as follows:
Hey I spoke with the doctor, everything is fine. I'm keeping it ... you told me you will support me so would be great if you would give me a call chat about it.
…
Hi Richard, nurse from abortion clinic called me and told me that you happy to pay for abortion, thanks but I canceled it. I told you I'm having baby and would you like to call me to talk about support and other things. Thank you.
Ms Trakimaite deposed that she had booked a termination appointment for 15 January 2021.
Ms Trakimaite deposed that on 20 January 2021 she attended the medical clinic and underwent the termination procedure. Her evidence was that she felt worthless, sad and depressed because she had lost her job and her baby.
Her evidence was that on 28 January 2021 she sent an email to Mr Aubertin which read:
Hi, as you agreed to pay for my psychologist sessions, please can you reimburse me for the first 2 sessions I paid, because I'm really struggling. Thanks.
Her evidence was that in 2021 she had attended 7 sessions with her psychologist and that Mr Aubertin had not reimbursed her for any of the related fees.
Anais de Caires
Ms de Caires deposed that she had known Ms Trakimaite for around three years and that they worked together at The Men’s Gallery. Ms de Caires deposed that on 31 October 2021, while working together at The Men’s Gallery, Ms Trakimaite said:
Richard ... forced me to have sex with him.”
When Ms de Caires inquired what she meant by forced, Ms Trakimaite said:
he told me that if I didn’t have sex with him that I didn’t have a job anymore.
Ms de Caires deposed that Ms Trakimaite said that she was “scared to lose” her job, and that she could not leave because he:
promised me a career and a pay rise
Ms de Caires deposed that Ms Trakimaite appeared to her to be stressed and worried.
RESPONDENTS’ EVIDENCE
Richard Desire Aubertin
Mr Aubertin deposed to being the sole director of Axe Construction and that his duties included running the operations of the business and employing and managing staff.
Mr Aubertin deposed that he had met Ms Trakimaite socially around April 2016 and that on 19 August 2020 she contacted him and expressed interest in working for him as an office administrator.
Employment
Mr Aubertin’s evidence was that Ms Trakimaite was employed by Axe Construction as a casual office administrator; she did not have fixed working hours and would complete a timesheet logging her hours worked. His evidence was he and Ms Trakimaite had verbally agreed that her employment was subject to a trial period of 6 months and that at the start of Ms Trakimaite’s employment, he had instructed Ravina Gahlac to train her through a handover of her duties. He deposed that on 24 August 2020 he said to Ms Trakimaite:
Ravina will set you up in the system with your pay rate and after 3 months I will pay you more.
Mr Aubertin deposed that Ms Trakimaite worked at Axe Construction’s office and that on 28 August 2020 he provided her with the office keys and a security card. On 24 October 2020 he enrolled her in a bookkeeping course to improve her professional skills.
Personal Relationship
Mr Aubertin’s evidence was that during Ms Trakimaite’s employment, he and she had had a non-exclusive, consensual romantic and sexual relationship. He deposed that consistent with that relationship he and Ms Trakimaite:
(a)exchanged text messages with terms of love and affection;
(b)exchanged photos and videos via text message, including Ms Trakimaite messaging him unsolicited provocative photos;
(c)spent substantial time together outside work with friends, on dates, trips and at each other’s homes; and
(d)would regularly engage in unprotected sexual intercourse.
Mr Aubertin’s evidence was that during their relationship, he and Ms Trakimaite faced some language and cultural barriers because of Ms Trakimaite’s Lithuanian background, with English as her second language. His evidence was that sometimes she was confused in their communications in English due to the cultural or language differences.
31 October 2020
Mr Aubertin deposed that on 31 October 2020, while intoxicated, he sent messages to Ms Trakimaite inviting her to his home, which she declined. He deposed:
... I attempted to make other plans to see her as I missed her. Ms Trakimaite was playing hard to get which made me question whether she was really interested in me at all or just wasting my time.
His evidence was they exchanged messages as follows:
Mr Aubertin:    I tried calling you you suck never again I call you don’t forget to do the invoicing
Mr Aubertin:    I want to take you shopping right now you are the love of my life take advantage before I find her for real
Mr Aubertin:    Love you with all my hearts (two hearts emoji)
Mr Aubertin:    Nice response you suck right now
Ms Trakimaite: If y want let’s go for dinner 6:30
Mr Aubertin:    I want to you cum over to my place and I fuck you like crazy tonight I miss all of you now baby girl I’m so wanting you
Ms Trakimaite: Nah lol. Maybe tomorrow.
Mr Aubertin:    Ok let’s just look at movie then I take you to work
Mr Aubertin:    I thought my first lov text would work you confuse me
Mr Aubertin:    You are the one going on dates not me
Mr Aubertin explained the last of those texts saying:
I had also asked Ms Trakimaite to come to my residence however when she declined, I was slightly agitated as she had gone on a date the night previously yet did not want to spend time with me. This was consistent with our personal relationship.
Mr Aubertin’s evidence was that they had misunderstood each other but the misunderstanding was resolved in a telephone call following which they exchanged the following texts:
Ms Trakimaite: You might understand something different that’s why always better to talk on phone not text
…
Mr Aubertin:    I don’t think we can work together anymore.
Ms Trakimaite: ?
Mr Aubertin:    (male shrugging emoji) what time do you want the uber beautiful
…
Mr Aubertin:    text me when you need the driver
Mr Aubertin:    I miss you
Ms Trakimaite: Ready in 5
Ms Trakimaite: Ok I’m ready
Mr Aubertin:    Show me
Ms Trakimaite: [address supplied]
Ms Trakimaite: Did y book it lol
Mr Aubertin’s evidence was that he did not pressure Ms Trakimaite to come to his home by threatening loss of employment, but was concerned by the tension caused by working together and having a sexual relationship. His evidence was that Ms Trakimaite had chosen to come to his home to resolve the misunderstanding they had had in their text conversations and he denied the accuracy of Ms Trakimaite’s evidence that she did not wish to have sex on 31 October 2020.
He also deposed:
… it was common for the Applicant and I to tease each other with words to the effect that “we can’t work together” or “we can't work with each other”. I was often distracted when she was present in the workplace with me – we would work for a few hours and then go have a drink which was not very productive. When I told her, “We can't work together” at various times in our relationship and on 31 October 2020, I meant that the sexual tension between us was such that I could not concentrate when she was around me and we spent more time being romantic or flirtatious than working. She did not ever indicate to me that she was offended by me saying those words.
He also said:
At 5:05 pm, I texted the Applicant, “I'm telling you never disrespect me never good night”.
The text message sent at 5:05 pm was relaying a quote from a movie that we had watched together. I cannot remember the movie now, but we had watched it together and I had made references to the line from the movie in our conversations.
and denied that Ms Trakimaite had said:
you're going to make me have sex with you
asserting that he would have remembered if she had.
Breakdown of personal relationship
Mr Aubertin deposed that in November 2020 he began dating one of Ms Trakimaite’s close friends, Rachel, after she had introduced them.
He also deposed that on 22 December 2020 Ms Trakimaite told him that she was pregnant and that he had suggested that they keep the baby. They then met in person and continued their conversation:
Mr Aubertin: Ok, let’s keep the baby?
Ms Trakimaite: Ok, I’m against abortion, so is my mother, so this is better
Mr Aubertin: If we are going to have a baby, should we also get married? You can move into the house and we build a life together.
Ms Trakimaite: I don’t know, this is a big decision and I’m not even with you. Maybe let’s try to see each other for a bit and see if we get along
…
He also said that Ms Trakimaite did not attend work after that day, which he took as an indication that she had resigned.
Mr Aubertin deposed that on 24 December 2020, he told Ms Trakimaite in a text that he was going to see Rachel that evening and that they subsequently had a phone conversation as follows:
Ms Trakimaite: I can’t believe you 're going to see Rachel. What are you going to tell her? You 're crazy, who cares about her, she is a prostitute. You hang out with scum.
Mr Aubertin:    I have to give her an explanation, it’s the right thing to do. Don't say that. You introduced me to her. You said she is a good person. …
…
Mr Aubertin:    You might remember that I told you how my mother attempted to abort me when I was conceived. This is all very personal, I wouldn’t ever want to do the same thing to my own child.
Ms Trakimaite: Well, I wish she did abort you.
At that point, Mr Aubertin hung up the phone. He deposed that he was shocked and hurt by Ms Trakimaite’s words and lost interest in making a life with her. They then exchanged text messages as follows:
Mr Aubertin:    Sonata don't ever talk to me like that your on your own I want you to abort this baby your crazy.
Ms Trakimaite: You very happy to have. All of a sudden you like that. You very supportive. I'm pregnant to you Richard and you told me we going to be together I really like you and now you are with Rachel and it's Christmas it's breaking my heart. I can't believe you doing this to me and baby. I won't kill baby. You supposed to be aborted. And you should thank to your mum she didn't. I wont do it. I wont take a life.
Mr Aubertin deposed that, despite their dispute, he wished to resolve their “misunderstanding” and continued to check on Ms Trakimaite by texting her on 25 and 26 December 2020, but Ms Trakimaite continued to be hostile. They sent text messages as follows:
Mr Aubertin: Are you ok. I’m at home if you want to talk.
...
Ms Trakimaite: I'm shocked how human can do that... you could tell me in a nice way that you not ready and you don't want baby ... but the way you did everything was really horrible Richard ... you really hurting ppl that are close to you .. I haven't done anything wrong to you I was good to you and always liked you. I didn't deserve to be treated like that. And I know that what goes around comes around. I don't hate you or anything, you are who you are. I think you too old to fix your personality, but I think if you will treat ppl in this disgusting way you will end up alone. You told me that no one likes you and that's because how you are to other .. but I don't think you understand that ... it could be personality disorder or I don't know ...
…
1 am feeling sad and lost. I thought you wanted me and the baby. You were fully aware that I could fall pregnant anytime and you were happy going through with it at the time. Now that I know that I'm pregnant you have rejected me and making me feel unwanted. You left me all alone for Christmas and went to see your girl knowing that would hurt my feelings. am hurt Richard and lost for words
Termination of employment
Mr Aubertin deposed that on 27 December 2020, Ms Trakimaite called him and apologised for her “hurtful words”. They then went to a café where Ms Trakimaite asked him to pay her $20,000 in compensation and provide her with a termination letter. Mr Aubertin deposed that he was shocked by her requests and asked for time and space. On 29 December 2020 Ms Trakimaite attended Mr Aubertin’s home with a friend and, he said, both women were drunk and shouted at him.
He deposed:
It was clear to me after the events and text messages of 22 to 29 December 2020 that the Applicant was not going to return to work.
He also deposed that he did not terminate Ms Trakimaite’s employment.
Mr Aubertin deposed that he had no recollection of a telephone conversation with Ms Trakimaite on 30 December 2020. He referred in that connection to the fact that her telephone records did not disclose that she had telephoned him that day but conceded in cross examination that his own telephone account recorded him having called her at 11.08 that morning and having had a conversation that lasted 3 minutes and 24 seconds. He deposed in his affidavit in reply that he had called Ms Trakimaite that morning asking for the return of his office keys and advising that he would collect them. In cross-examination Mr Aubertin expanded on that evidence, saying that the conversation had concerned “the termination letter” and that:
She asked me [for] a termination letter in that call and that’s when I made my mind up she obviously wasn’t coming back. She then sent me a text saying, ‘don’t’ – I said I will come over and pick up the keys to the office, I want the keys back. She then sent me a text saying, ‘I’m calling the police, don’t come to my house’. So that’s pretty much finished. Yes. I received a text from her.
At 11.17am on 30 December 2020, he and Ms Trakimaite exchanged text messages as follows:
Ms Trakimaite: You not allowed to come to my place. Don't come near me. I'll call police if you coming near me.
Mr Aubertin: No problem call the police I just want the keys to the office back.
Mr Aubertin said that in his mind that message:
pretty much cancels employment and relationship.
In other cross-examination, however, Mr Aubertin said that the call took place when he was at Ms Trakimaite’s front door that morning, seeking the return of the keys, because Ms Trakimaite was not answering the door.
On his evidence, when he went to Ms Trakimaite’s home on 30 December 2020, Mr Aubertin knocked on her door, which she opened, and she gave him the keys. His evidence was that Ms Trakimaite could not have passed the keys, together with the key ring, under her front door although he conceded in cross-examination that the rubberised door seal at the foot of the front door was not held securely in place when the door was closed and could be raised manually. He also said that at 4.13pm on 30 December 2020, Ms Trakimaite sent him an email saying:
Richard please send me termination letter and $500 for abortion, it’s on Friday and I don’t have savings. Thanks
Mr Aubertin’s evidence was that on 31 December 2020 Ms Trakimaite sent him an email regarding the termination of her employment and her request for $500 for the cost of an abortion. His evidence was they also had a text conversation as follows:
Mr Aubertin: Hey are you ok?
Ms Trakimaite: oh I send you email, I forgot to remind you on a phone about the letter. Also I booked appointment next Friday, its $500 ... would you like to pay? Because I don't have savings
Mr Aubertin: Obviously
…
And on 1 January 2021:
Ms Trakimaite: Also don't forget Monday termination letter. I need it.
Mr Aubertin deposed that he did not provide Ms Trakimaite with a termination letter because he believed that she had resigned and that he had not terminated her employment.
Abortion and end of relationship
Mr Aubertin’s evidence was that on 14 January 2021 he and Ms Trakimaite had a text conversation which started as follows:
Mr Aubertin:    Sonata I have tried to call you and also text you I have heard nothing. I have no idea what you are doing or proof that you are pregnant. Maybe some proof would be good
at which point Ms Trakimaite sent him copies of ultrasound images which indicated that she was roughly 8 weeks pregnant. Their text conversation continued as follows:
Mr Aubertin:    I’m so sorry this has been a hard time for me also
Ms Trakimaite: I don’t believe you sorry for anything. Even today you told me you won't support this baby. You made 3 other girls to have abortions too. Stop texting me. I don't want to talk to you
Mr Aubertin:    ok have a nice day. I'm sorry for what you have to go through enough said.
…
Ms Trakimaite: You not supporting baby 100% as you said just now on phone right.
Mr Aubertin:    You showed me nothing since now
Ms Trakimaite: Don't come anywhere close to me pls
Ms Trakimaite: Don't wanna talk to you eighter
Ms Trakimaite: if you will try come to my house I'll call police
Ms Trakimaite: Pls pay Jo the clinic for my abortion they should have contact you.
Mr Aubertin:    Now I'm confused no one had contacted me
Mr Aubertin:    I won't be coming around to your house just relax I don't want dramas just send me the bill
...
Mr Aubertin:    so did you go to the clinic or not?
Ms Trakimaite: tomorrow
…
Ms Trakimaite: maybe I'll cancel my appointment tomorrow, I think I need talk to Psycologist first
Mr Aubertin:    As you wish
Ms Trakimaite: Then I decide if I wanna do abortion
Mr Aubertin’s evidence was that he had demonstrated to Ms Trakimaite that he was willing to support her needs, including her request that he pay her psychologist’s fees. Mr Aubertin’s evidence was that he was constantly in a state of confusion and worry due to Ms Trakimaite’s difficult behaviour and her confusing messages.
Mr Aubertin’s evidence was that he later paid the $500 abortion fee directly to Ms Trakimaite upon receiving the invoice and did not contact her again until March 2021.
CONSIDERATION
This case has the following elements:
(a)whether, in all the circumstances, Mr Aubertin’s conduct towards Ms Trakimaite on 31 October 2020 amounted to sexual harassment contrary to s.28A of the SD Act; and
(b)whether Ms Trakimaite was dismissed from her employment and, if so, whether she was dismissed contrary to s.7 of the SD Act because she was pregnant.
Evidence concerning what happened after Ms Trakimaite returned her office keys and security pass, which mark the latest possible point of her employment with Axe Construction, is not particularly helpful in the determination of those questions.
Sexual harassment
Events on 31 October 2020?
The terms of s.28A of the SD Act were set out earlier in these reasons. As noted by Perram J in Hughes v Hill (2020) 277 FCR 511:
21        There are essentially three elements to this provision.
22        First, the Court is directed by subs (1) to ask itself whether there has been any of three identified forms of conduct: a sexual advance, a request for sexual favours or other conduct of a sexual nature. Each of these concepts involves the application of a defined legal standard to the facts as found. The Court must determine, on those facts, whether there was a sexual advance, a request for sexual favours or other conduct of a sexual nature. It is a question for the Court and it is a question of fact. In determining whether there has been conduct of a sexual nature the Court applies, of course, the definition of that term in s 28A(2).
23        Secondly, if an identified form of conduct is established subs (1) also requires that it must be ‘unwelcome’ to the person allegedly harassed. This is a question of fact which is subjective and which turns only on the allegedly harassed person’s attitude to the conduct at the time. Even if the Court has concluded under the first limb that one person has engaged in conduct of a sexual nature towards another person, this will not constitute sexual harassment under the provision if it was not actually unwelcome in this sense. Ordinarily this will be proved by the person allegedly harassed giving evidence that the conduct was unwelcome but that mode of proof is not dictated by the statute and proof of this fact, like proof of any other fact, may be done by a variety of means. In some cases, I suspect this is one, the unwelcome quality of the conduct will be painfully obvious.
24        Thirdly, once it be established that there was conduct of a sexual nature towards another and that the conduct was unwelcome, the provision imposes an objective delimitation on the provision’s ambit. The ‘circumstances’ must be such that a reasonable person would have anticipated the possibility that the person allegedly harassed would be offended, humiliated or intimidated by the conduct. The ‘circumstances’ are defined broadly in s 28A(1A) and include, importantly for this case, the relationship between the harasser and the harassed.
Was there a sexual advance, a request for sexual favours or other conduct of a sexual nature?

Mr Aubertin agreed that on 31 October 2020 he had invited Ms Trakimaite to go to his home so they could have sex and that she had declined the invitation. The evidence supports a conclusion that she declined a first and then a second request. The text messages that they exchanged that day between 2.55pm and sometime after 5.06pm read:
According to Ms Trakimaite’s copy of those text messages, the shrugging man emoji was sent at 5.38 pm and the following message was sent at 5.52pm:
Then at 6.13pm the following exchange commenced:
I find, based on that evidence, that Mr Aubertin in those exchanges sought sex at least twice and that Ms Trakimaite sought to deflect those requests.
Was the request for sexual favours or other conduct of a sexual nature unwelcome?
According to the evidence of both parties, their relationship had a significant, consensual sexual element. As a result, I do not infer that Mr Aubertin’s suggestions of sex on 31 October 2020 were initially unwelcome, as demonstrated by the bantering nature of the parties’ exchanges more generally. However, the bantering tone disappeared from this discussion after Ms Trakimaite deflected the idea for a second time, suggesting that they see a movie instead. Ultimately, a plainly frustrated Mr Aubertin texted saying:
… your finished have a great night
and
I don’t think we can work together anymore.
The request for sex was never withdrawn and Mr Aubertin’s implicit continuing wish for it was evidenced by his change of tone after, as I accept, Ms Trakimaite rang him following those texts and agreed to go to his home.
Ms Trakimaite also deposed to telephone conversations that took place between some of those text messages, which Mr Aubertin did not much seek to contradict. He did provide explanations for his comments and disagreed that Ms Trakimaite had protested that if she went to his place he would make her have sex with him. However, significantly, he did not provide a satisfactory explanation contradictory of Ms Trakimaite’s explanation for her change of heart plainly manfested in the text messages. It is not sufficient to say that their normal behaviour included teasing statements that they could not work together while in a sexual relationship because the tone of the text messages, perhaps unsurprising in circumstances where Mr Aubertin was intoxicated, does not seem like playful banter.
The evidence of Ms Trakimaite, whom I infer was not drunk, was that she felt that her employment was at risk if she did not have sex with Mr Aubertin that night. I accept that evidence. I found Ms Trakimaite generally to be a straightforward witness who answered questions without obfuscation or evasion and made appropriate concessions. Except where stated otherwise, I prefer her evidence to Mr Aubertin’s where they differ. I am satisfied that the lack of some fluency in Ms Trakimaite’s cross-examination was the result of her unfamiliarity with some aspects of English, rather than prevarication. I also note that her evidence as to her state of mind at the time was reflected in what she said a few hours later to Ms de Caires, who was not cross-examined on her corroboration of Ms Trakimaite’s statements to her.
More generally, Ms Trakimaite was cross examined on differences between her copies of text messages exchanged with Mr Aubertin, and referred to in her affidavit in chief, and Mr Aubertin’s versions annexed to his affidavit. She agreed that Mr Aubertin’s record was more complete, explaining that she lost a number of images and texts when her phone ran out of data. Noting that a number of the images absent from Ms Trakimaite’s version of the messages were of business documents irrelevant to her personal relationship with Mr Aubertin, the fact that she accepted the correctness of the messages reproduced from Mr Aubertin’s phone, and the manner in which she gave evidence about the lacunae, I accept Ms Trakimaite’s explanation of those lacunae.
In a similar vein Ms Trakimaite freely conceded that her affidavit in chief’s account of some of her conversations with Mr Aubertin were not identical to the versions set out in her complaint to the Commission.
Mr Aubertin was not as impressive a witness and seemed, even though I am sure intending no disrespect to the Court, to be insouciant when giving his evidence and almost bewildered to be in the witness box. He was generally a taciturn witness although he freely expressed regret for the nastiness of some of his text messages to Ms Trakimaite. Overall it appeared that his attitude to the relationship was that it was diverting and, although manifesting moments of real affection, essentially an emotionally shallow one. Mr Aubertin’s evidence in cross-examination that he had been unaware until the trial that Ms Trakimaite had been, vis á vis him, in a position of vulnerability is understandable in that context and I accept it.
I conclude that Ms Trakimaite did not have sex with Mr Aubertin on 31 October 2020 because she wanted to but because she felt she had to. She had plainly not wanted to have sex not long before going to work at The Men’s Gallery that night and gave in to Mr Aubertin’s pressure simply to satisfy him. I conclude that sex at that time was unwelcome to Ms Trakimaite.
Would a reasonable person have anticipated the possibility that Ms Trakimaite would be intimidated?
The issue raised by s.28A of the SD Act is whether unwelcome conduct of a relevant type occurred in circumstances where a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person allegedly harassed would be offended, humiliated or intimidated. I accept Ms Trakimaite’s evidence that she felt intimidated and I suspect that Mr Aubertin was not entirely aware of the pressure his words placed on her. However, the parties’ subjective views do not decide the issue as the test is an objective one. The circumstances relevant to the events in question are, I find,
(a)Ms Trakimaite:
(i)was a single woman without family in Australia and on 31 October 2020 was 31 years old;
(ii)was a foreign citizen on a bridging visa and so her long term migration status was unresolved;
(iii)had, in addition to living expenses, expenses associated with securing a favourable visa outcome;
(iv)was quite fluent in conversational English but lacked a complete grasp of the language and needed some matters to be explained;
(v)had a Lithuanian tertiary qualification in furniture and interior design but in Australia had largely worked in bars or as a waitress;
(vi)had been a waitress at The Men’s Gallery for some time;
(vii)saw her income earned at The Men’s Gallery affected by a reduction in business as a result of the COVID-19 pandemic;
(viii)earned more at Axe Constructions during the period of her relationship with Mr Aubertin than she was earning at the time at The Men’s Gallery.
(b)Mr Aubertin was Ms Trakimaite’s employer at Axe Construction and, at the time, was 48 years old;
(c)the terms of Ms Trakimaite’s employment at Axe Construction were not reduced to writing and it may be that Ms Trakimaite was not provided with a Fair Work Information Statement under s.125 of the FW Act;
(d)when she declined sex on 31 October 2020, Mr Aubertin texted her rejecting her suggestion of sex the following night, saying:
Don’t bother
before going on to say:
There are plenty of bitches in Sydney babe;
I’m telling you never disrespect me never good night
Remember Your not all that babe have a good night
Yeh need to get it understand stop acting like you all it your not babe
before concluding with
… your finished have a great night
Enjoy
and
I don 't think we can work together anymore.
I have also had regard to the other matters referred to in s.28A(1A)(a) of the SD Act but do not consider them to be material to this case.
I conclude that Ms Trakimaite was substantially, albeit not wholly, dependent on her wages from Axe Construction and that there was a disparity of power between her and Mr Aubertin which, it appeared from his words, Mr Aubertin was willing to exploit at least on that occasion. I find that a reasonable person, having regard to all the circumstances, would have anticipated the possibility, given the change in the tone of Mr Aubertin’s messages to Ms Trakimaite on 31 October 2020 when she sought to postpone sex, that she would be intimidated by his statements that she was “finished” and that he did not think that they could “work together any more”.
For the above reasons, I find that Mr Aubertin sexually harassed Ms Trakimaite when he requested sexual favours from her on 31 October 2020. I find that not only did Mr Aubertin contravene s.28B(2) of the SD Act but that Axe Constructions is vicariously liable for that intimidatory conduct on the basis that it was “in connection” with Ms Trakimaite’s employment as it involved a threat to Ms Trakimaite’s employment by the principal of her employer.
Sex discrimination?
Whether Ms Trakimaite was a victim of sex discrimination as alleged depends on whether she was dismissed from her employment with Axe Construction and, if so, whether she was dismissed because she was pregnant although a person who was not pregnant would not, in essentially the same circumstances, have been. It can be accepted that for present purposes, Mr Aubertin was relevantly the agent of Axe Construction.
Dismissal
The terms of Ms Trakimaite’s employment and the circumstances of its end are far from clear:
(a)she says that her position was permanent part-time while Mr Aubertin says it was “casual and intermittent” and no clarifying documentation was adduced. One timesheet, for the week ending 22 November 2020, was tendered but was inconclusive. Given that the FW Act and the FW Regulations require employers to keep records which, amongst other things, must record whether an employee’s employment is permanent, temporary or casual, the fact that no records of that sort were adduced by the respondents leads me to infer that such records as Axe Construction had would not have supported their allegation as to casual work. I find that Ms Trakimaite was employed on a permanent part-time basis as she alleges; and
(b)Ms Trakimaite’s last day of work at Axe Construction was 22 December 2020 but she did not tender a resignation and was not expressly dismissed. Her employment appears to have ended as an implicit consequence of the end of the personal relationship which in turn flowed from Ms Trakimaite’s pregnancy and the parties’ conduct culminating in the pregnancy’s termination.
On 22 December 2020 Ms Trakimaite told Mr Aubertin of the pregnancy. Their accounts of that conversation indicate that, at that point, Mr Aubertin was supportive of Ms Trakimaite and willing to considering marriage; they also agreed that Ms Trakimaite had been unsure whether they should enter a long-term relationship. Her version of the conversation on 22 December 2020 has Mr Aubertin concluding it by saying:
Alright, but whatever you do you’re on your own
which appears incongruous given what had been said immediately before. It also does not sit well with Ms Trakimaite’s evidence that in a conversation later that day Mr Aubertin had also said:
… because you’re pregnant this changes everything. I want to be with you.
Two days later, at 6.14pm on Christmas Eve 2020, Ms Trakimaite texted Mr Aubertin, apparently anticipating an evening together:
Did you decided where you want to go
to which Mr Aubertin responded that he was:
catching up with Rachel tonight.
Ms Trakimaite responded at 6.41pm:
You choosing her yeah
and at 7.15pm Mr Aubertin texted
Sonata don’t ever talk to me like that again your own I want you to abort this baby your crazy
According to Mr Aubertin, in the period between those last two messages, he and Ms Trakimaite had had a conversation in which they said:
Mr Aubertin: You might remember that I told you how my mother attempted to abort me when I was conceived. This is all very personal, I wouldn’t ever want to do the same thing to my own child.
Ms Trakimaite: Well, I wish she did abort you
which let him to abandon thoughts of a life together with her. Ms Trakimaite’s version of the conversation was that they had said:
Ms Trakimaite: Please Richard don't do this to me, please talk to me.
Mr Aubertin: You introduced me to Rachel, it's your fault. I like her more than you now. I've bought her a Chanel bag and taking her to have Christmas with me. I'm not going to cancel on her now.
Ms Trakimaite: Your horrible, how can you do that. You should have told me earlier.
Mr Aubertin’s version of that conversation appears more consistent with the 7.15pm text message than Ms Trakimaite’s and I accept it.
From that point, the parties’ accounts diverge further on critical details. They agree that on 27 December 2020 they went to a café at Bondi Beach, but Ms Trakimaite says that at that meeting Mr Aubertin was expressly supportive of whatever decision she might make, whereas he says that she asked for $20,000 and a “termination letter”. In effect, Mr Aubertin alleges that out of the blue Ms Trakimaite asked for a letter of termination even though he had not dismissed her and indeed never did. It is also worth noting that, even on Mr Aubertin’s version of events, the supposed request for $20,000 was never repeated subsequently and the only requests for money made by Ms Trakimaite and recorded in the parties’ text messages were for funds to pay for the termination of pregnancy and subsequent psychologist consultations. Those circumstances tend to suggest that Mr Aubertin's recollection of the conversation on 27 December 2020 is inaccurate.
So do the text messages the parties exchanged later that day:
Those messages record Ms Trakimaite having spoken “not very nice” and having “overreacted” but, despite what Mr Aubertin had said in his 7.15pm Christmas Eve text message about her thenceforth being on her own, they do not reflect Ms Trakimaite having sought to end their relationship, which a resignation would almost certainly have entailed. I therefore find that she did not, and do not accept Mr Aubertin’s related evidence that requests for money and a termination letter had caused him confusion because, if those alleged requests had indeed been made, they would not have been inconsistent with the sentiments he had himself expressed in his Christmas Eve text only a few days earlier.
The next event of significance occurred on the evening of 29 December 2020 when Ms Trakimaite and Inna Jankovic went to Mr Aubertin’s home. Ms Trakimaite deposed that while she was there she called Rachel and told her that she was pregnant. Mr Aubertin deposed in that regard:
On 29 December 2020, Ms Trakimaite was intoxicated and called Rachel which caused my relationship with Rachel to end. I became upset because I wanted to sort it out with Rachel myself and not be manipulated once again by Ms Trakimaite. [113]
Later that evening Mr Aubertin texted Ms Trakimaite saying:
to which Ms Trakimaite responded:
Mr Aubertin said in relation to the meeting on the evening of 29 December 2020 that both Ms Trakimaite and Ms Jankovic were drunk and shouting at him, “eventually” leaving after he asked them to. The CCTV footage of the women arriving and leaving does not suggest that they were intoxicated, although the video was not accompanied by any sound recording. It indicated that they arrived together at about 8.15pm, that Ms Jankovic left at about 9.25pm and that Ms Trakimaite left at about 10.55pm. That chronology is more consonant with the account of the evening Ms Trakimaite set out in her complaint to the Commission and its accompanying chronology than Mr Aubertin’s version.
At 5.55 the next morning, 30 December 2020, and before a “termination letter” is mentioned for the first time in writing in Ms Trakimaite’s email at 11.15am that day, Mr Aubertin texted Ms Trakimaite saying:
to which, according to her copy of the messages, Ms Trakimaite replied the next minute:
Mr Aubertin called Ms Trakimaite at 11.08 that morning after her ultrasound. According to Ms Trakimaite, in that conversation she said that she was not going to have an abortion and that Mr Aubertin responded angrily, calling her a “spastic bitch” and saying:
this is it your not working anymore.
It is consistent with the parties’ relationship having broken down over the night of 29/30 December 2020 that Mr Aubertin would say something like that to Ms Trakimaite the next morning and also to demand the return of the office keys as she claims.
That Mr Aubertin did want the keys back and was at least unhappy with Ms Trakimaite is confirmed by the CCTV recording of him banging on Ms Trakimaite’s door later that morning and saying in an exasperated tone:
You’re a fucking retard, just give me the keys.
Consistent also with Ms Trakimaite’s version of events was:
(a)her email to him at 11.15am that day in which she is recorded in writing for the first time asking for a “termination leather”;
(b)her text to Mr Aubertin at 11.58am that day:
;and
(c)her 4.54pm email to him asking:
Btw what actually reason you fired me? Because I’m pregnant with your baby?
As for Mr Aubertin, his version of events, after first saying that he had no recollection of a telephone conversation with Ms Trakimaite on 30 December 2020, involved a concession that one had occurred and an allegation that Ms Trakimaite had requested a “termination letter”. Mr Aubertin also said that it was this particular request that had led him to conclude that Ms Trakimaite would not be returning to work at Axe Construction, an assertion that sits uncomfortably with his evidence that he had already taken Ms Trakimaite’s absence from work after 22 December 2020 to indicate that she had resigned, which itself was not consistent with the chatty messages that passed between them on Wednesday 23 December 2020 and on Christmas Eve morning. Mr Aubertin’s later evidence was that his call to Ms Trakimaite took place when he was standing at her front door seeking the return of his office keys, however, this cannot be correct as the call was made at 11.08am and the video records him arriving at Ms Trakimaite’s door at 11.42am.
If, as Mr Aubertin says, Ms Trakimaite had used the conversation of that morning to ask for a letter of termination, and that it had been that request that led him to perceive a resignation which, in turn, it appears from his evidence quoted earlier at [82] and the chronology of events more generally, led to him seeking the return of the keys to his office, it is surprising that he could not at first recall the fact of the conversation. I do not accept, if Ms Trakimaite had asked for a termination letter in the way Mr Aubertin alleged, that he would not have recalled the conversation in which it was sought, particularly as he acted on the sentiments he alleged she had expressed.
Having had the benefit of observing Ms Trakimaite giving evidence I do not believe her text and email asking for a termination letter were contrived enquiries and accept that they reflected the novelty of the situation in which she found herself, namely the end of her employment. I conclude that it was Mr Aubertin who terminated the working relationship and that he did so no later than 30 December 2020. I do not accept that Ms Trakimaite resigned during their coffee meeting on 27 December 2020.
However, even though I have concluded that Ms Trakimaite’s employment was terminated by Mr Aubertin, I am not persuaded that he ended if because she was pregnant. I find that the reason it ended was the breakdown in their personal relationship, which was documented in the exchange of texts and emails reproduced in these reasons. It should note noted in this regard that Mr Aubertin’s first text message to Ms Trakimaite on 30 December 2020 said:
and that it was not until the telephone conversation at 11.08 that morning that, I accept, Mr Aubertin said that Ms Trakimaite was:
not working anymore.
and that he was coming to get the office keys

I have already observed that at least from Mr Aubertin’s side the relationship appears to have been a shallow one and, in such circumstances, was unlikely to survive significant challenge or emotional stress. To that might be added Mr Aubertin’s labile and often negative mood which was probably made less disposed to Ms Trakimaite because his relationship with Rachel broke down because Ms Trakimaite had involved her in their problems. It seems that Ms Trakimaite was causing Mr Aubertin too many headaches in his private life and, as he said in his text to her on 2 January 2021 at 3pm, he wanted her :
To get the fuck out of my life.
Just as, I believe, a resignation by Ms Trakimaite would have ended the parties’ personal relationship, so the employment relationship would not survive the end of the personal relationship. Once the personal relationship became too demanding of Mr Aubertin, he ended it and that incidentally led to the end of Ms Trakimaite’s employment with Axe Construction. Whether Ms Trakimaite’s behaviour was understandable in the circumstances and whether Mr Aubertin’s attitude to it was mature, caring and reasonable are not questions that need to be answered in order to determine this aspect of the matter.
I find that Ms Trakimaite was not dismissed from her employment with Axe Constructions because she was pregnant.
As a final note I record that the respondents filed submissions in reply without leave. Those submissions have not been considered.
DAMAGES
Given those findings, it is necessary to consider Ms Trakimaite’s prayers for general and aggravated damages for the hurt, humiliation and distress that she submitted she had experienced as a result of Mr Aubertin’s conduct on 31 October 2020.
For general damages Ms Trakimaite sought $50,000, arguing that for the following reasons the sexual harassment had been of a very serious kind:
(a)the sexual act was demanded in a manner that was aggressive and insulting;
(b)Mr Aubertin dismissed her refusal;
(c)Mr Aubertin knew that she was vulnerable;
(d)Mr Aubertin’s abuse of his position of power was exceptional;
(e)the harassment did in fact lead to her succumbing to Mr Aubertin’s demand for sexual intercourse; and
(f)Mr Aubertin’s action caused her psychological and physical harm.
Ms Trakimaite also sought aggravated damages on the basis that:
On 31 October 2020, and after succumbing to the will of the First Respondent, he proceeded to tell the Applicant that the sex that they just engaged in was the worst sex that he had ever had. This further aggravated the already physical and emotional injuries she had just sustained. When she returned the following day he dismissed her concerns. He did nothing to allay the concerns that were present in the Applicant’s mind. (references omitted)
Evidence
Ms Trakimaite
Ms Trakimaite’s evidence was that, physically the sex on 31 October 2020 had been painful. She described the experience:
While we were waiting for the food Richard was hugging me and kissing me and I said to him “I have makeup on and I have to go to work. I came to have dinner and I did not come to have sex.” Richard did not stop touching me and he all of a sudden carried me into the bedroom and placed me on the end of the bed. I said to him “please get me a glass of water I don’t want to have sex.” Richard did not get me a glass of water and started to lift my top off. I was wearing a black top with sparkles and blue denim shorts with no bra and white underwear. As he was lifting my top off I felt scared because I had said no so many times to him but he just kept going. He then opened my denim shorts and pulled them off. I was just lying down at the time and he removed my underwear. He laid on top of me and put his penis inside me and as soon as he entered me it hurt because he had no foreplay and I was not interested physically in having sex. I really didn’t pay attention to him too much I was just hoping it would finish soon so I can go to work. … I simply laid there and let him have sex with me.
She also deposed that the next morning when she went back to Mr Aubertin’s home after her shift at The Men’s Gallery:
… I told him words to the effect “I have responsibilities, I need this job, please don’t do that again it made me feel terrible and the sex hurt me”. I told him this at least three times but each time he would turn away and start doing something in the kitchen or try to hug me. He didn’t apologise at all. By that stage I was exhausted and laid on his bed in my clothes and fell asleep very quickly.
Dr Kate Seidler
Dr Seidler is a clinical and forensic psychologist who examined Ms Trakimaite and completed a psychological report on her dated 7 January 2022 which was based on an interview and assessment conducted on 11 November 2021.
Dr Seidler reported that during the interview, Ms Trakimaite presented as a poor historian in relation to temporal information, and needed some direction at times because her account of events tended to be expansive, such as when discussing a previous abusive relationship. Ms Trakimaite, while visibly upset and tearful at times, did not demonstrate any overt evidence of significant psychopathological symptomatology or formal thought disorder.
Dr Seidler reported that Ms Trakimaite stated that soon after she commenced employment with Axe Construction Mr Aubertin propositioned her for sex and, while she initially resisted his advances, she ultimately acquiesced due to the threat of losing her job. Dr Seidler reported that Ms Trakimaite had advised that once after socialising with Mr Auberton, she woke at his house without any recollection of what had transpired and that, following this, they commenced a sexual relationship. Dr Seidler noted that this was contrary to the account in the documentation she had been provided, but when she questioned Ms Trakimaite about this, she stated that Mr Aubertin had been quite pushy, insistent, and demanding. Dr Seidler concluded that although Ms Trakimaite reported her relationship with Mr Aubertin began somewhat organically, there was a clear power difference exacerbated by a previous abusive relationship and she was probably triggered and destabilised by Mr Aubertin’s reported aggressive behaviour and substance abuse.
Dr Seidler recorded that Ms Trakimaite becoming “a different person” after her experience with Mr Aubertin. Ms Trakimaite reported that she had experienced:
(a)a negativity in her thinking, including feeling upset, emotional and suffering grief with the association of the termination of her pregnancy about which she ruminates often;
(b)increased tearfulness;
(c)sleep onset difficulties, frequent bad dreams and ‘sleep paralysis’ being episodes where she is immobilised during sleep;
(d)depressive symptomatology including lethargy and amotivation; although to a lesser extent than a previous depressive episode;
(e)symptoms of anxiety, including tremulousness of the hands, feeling stress and tense, having difficulties concentrating or focusing cognitively, but no episodes of panic; and
(f)difficulty trusting men due to being “paranoid” that they will hurt her, which has made her resistant to being involved in a new relationship or meeting new people.
Dr Seidler reported that one assessment Ms Trakimaite completed was a Personality Assessment Inventory assessment. Dr Seidler concluded from its results that Ms Trakimaite presented as unhappy, moody, pessimistic about the future, with low self-esteem and negative sense of self, as considering herself powerless to effect change in her life and uncertain about her life goals and direction, and as feeling hopeless, agitated and stressed.
Dr Seidler deposed that Ms Trakimaite also completed a Trauma Symptom Inventory 2^nd edition assessment to assess the experience of post-traumatic stress disorder and other psychological sequelæ of exposure to trauma. Dr Seidler concluded that Ms Trakimaite had probably exaggerated her “symptom experience” “at least to a degree”, the test results indicating that she was suffering very high levels of anxious arousal and depression, with significant intrusive experiences of trauma-related content and being avoidant of trauma-related reminders, and “endorsed high levels of dissociative symptomatology” despite not reporting any symptoms during her interview. Ms Trakimaite also experienced some disturbance in sexual relationship in addition to being overly sensitive to possible rejection by others.
Dr Seidler concluded overall that:
As a result of her experiences with Mr. Aubertin, Ms. Trakimaite endorsed the onset of some symptoms of anxiety and depression and in my opinion these would meet criteria for an Adjustment Disorder with Mixed Mood, following on from the aggravation to her previous psychological condition following experience in an abusive relationship. Ms. Trakimaite also reported mild to moderate functional impairment, primarily in the emotional and interpersonal domains, but she is also now unsure about a future in her chosen career in office administration. In terms of causation, Mr. Aubertin’s behaviour towards Ms. Trakimaite is responsible for her level of distress but this also represents an exacerbation of a recent traumatic experience, which has served to aggravate her psychological response. Further to this, it is suggested that choosing to terminate a pregnancy throughout this experience is a significant contributor to Ms. Trakimaite’s distress and this remains an unresolved area of grief for her.
Dr Seidler deposed that Ms Trakimaite had a reasonably positive prognosis for a return to healthy functioning, especially with time and psychological support, recommending therapy on a fortnightly basis for six to twelve months.
Discussion
Ms Trakimaite submitted that the existence of a sexual relationship between her and Mr Aubertin, both before and after 31 October 2020, did not diminish the significance of Mr Aubertin's harassing conduct. She submitted that that conduct involved him abusing his power in an exceptional way by using illegitimate pressure to make her hear the loss of her employment at Axe Construction at a time when she was very vulnerable. She argued that this led her will being overborne and to her succumbing to Mr Aubertin’s will, all of which resulted in psychological and physical harm to her.
I have no doubt that Mr Aubertin took advantage of Ms Trakimaite’s relatively vulnerable position to extort her for sex. The fact that he appears to have been affected by alcohol may provide some form of explanation for his conduct but hardly excuses it. In any event, the matter in issue concerns Ms Trakimaite having been pressured or manipulated into unwanted sexual intercourse and what the appropriate compensation for that experience, according the principles expressed in Richardson v Oracle Corporation Australia Pty Ltd (2013) 232 IR 31, is. Relevantly that case held that in assessing compensatory damages under the AHRC Act, the Court may be guided by way of analogy, by the general principles governing the assessment of damages in tort. I have not been taken to any comparable cases which might provide some guidance as to an appropriate range within which an amount of general damages might properly be awarded but note Ms Trakimaite’s prayer in submissions for general damages of $50,000.
The events of 31 October 2020 are not ones whose significance should be minimised but their significance is best understood in context and by reference to the evidence and arguments. Ms Trakimaite does not appear to suggest that submitting to intercourse on 31 October 2020 with a man with whom she had been, and with who she would continue to be, in a highly sexualised relationship led to health or psychological sequelae such as were considered in Richardson v Oracle or Hughes v Hill. The parties’ text messages subsequent to 31 October 2020 suggest that Ms Trakimaite was not obviously affected by the incident. The possibility that the effects of that night were deeper than appeared to be the case or were being concealed was not contended by Ms Trakimaite and Dr Seidler’s report did not support such hypotheses. Further, Dr Seidler’s report is of limited assistance in determining the relative significance of the sexual harassment because it:
(a)discloses an inaccurate understanding of the events of 31 October 2020;
(b)did not discuss or analyse the events of 31 October 2020 separately from the termination of pregnancy and Ms Trakimaite’s loss of employment with Axe Construction; and
(c)identified the termination of Ms Trakimaite’s pregnancy as a significant but unresolved contributor to Ms Trakimaite’s distress suggesting, as one might expect, that the termination and related matters were, when compared with sexual harassment, the more significant events and behaviours.
In all these circumstances I consider that Ms Trakimaite is entitled to general damages of $25,000.
I am not persuaded that an award of aggravated damages is warranted. Aggravated damages are given to compensate a person where the harm suffered was aggravated by the manner in which act was done. The matters cited by Ms Trakimaite in support of an award of aggravated damages, while ugly and selfish, were not such as to require an order for damages additional to the general damages awarded.
Costs
Section 46PSA of the AHRC Act relevantly provides:
Scope
(1)This section applies to proceedings (including an appeal) in a court that relate to an application made by a person (the applicant) under section 46PO in respect of one or more respondents to a terminated complaint.
When respondent liable for costs
(2)Subject to subsection (4), if the applicant is successful in proceedings on one or more grounds, the court must order each respondent against whom the applicant is successful to pay the applicant’s costs.
(3)The court may order that the costs to be paid by the respondent be assessed on an indemnity basis or otherwise.
(4)If the court is satisfied that the applicant’s unreasonable act or omission caused the applicant to incur costs, the court is not required to order the respondent to pay the costs incurred as a result of that act or omission.
On the face of things, Ms Trakimaite is entitled to an order for her costs. That matter will be re-listed for submissions in light of s.46PSA of the AHRC Act.
CONCLUSION
There will be judgment for Ms Trakimaite for $25,000.

I certify that the preceding one hundred and forty-six (146) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron.
Associate:
Dated: 8 November 2024

File number(s):	SYG 1114 of 2021
Judgment of:	JUDGE CAMERON
Date of judgment:	8 November 2024
Catchwords:	HUMAN RIGHTS – Sex Discrimination Act 1984 (Cth) – sexual harassment – sex discrimination – where applicant was an employee of the second respondent – where applicant and first respondent engaged in a consensual and non-exclusive sexual relationship – where first respondent was principal of second respondent – whether the first respondent sexually harassed the applicant – whether applicant’s employment with second respondent was terminated on the basis of her pregnancy
Legislation:	Australian Human Rights Commission Act 1986 (Cth) ss 46PO, 46PSA Fair Work Act 2009 (Cth) s 125 Sex Discrimination Act 1984 (Cth) ss 5, 7, 14, 28A, 28B, 106
Cases cited:	Hughes v Hill (2020) 277 FCR 511 Richardson v Oracle Corporation Australia Pty Ltd (2013) 232 IR 31
Division:	General
Number of paragraphs:	146
Date of last submission/s:	8 May 2023
Date of hearing:	30 – 31 January 2023
Place:	Sydney
Counsel for the Applicant:	Mr L Finch(Direct Brief)
Counsel for the First and Second Respondents:	Ms T Wong
Solicitor for the First and Second Respondents:	Mills Oakley

SYG 1114 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	SONATA TRAKIMAITE Applicant
AND:	RICHARD DESIRE AUBERTIN First Respondent AXE CONSTRUCTION GROUP ACN 631 236 274 Second Respondent

ORDER MADE BY:	JUDGE CAMERON
DATE OF ORDER:	8 NOVEMBER 2024

Week	Gross Pay	Hours worked
17/08/2020 – 23/08/2020	$207.69	9
23/08/2020 – 30/08/2020	$484.61	21
31/08/2020 – 06/09/2020	$461.54	20
07/09/2020 – 13/09/2020	$253.85	11
14/09/2020 – 20/09/2020	$461.54	20
21/09/2020 – 27/09/2020	$542.31	23.5
28/09/2020 – 04/10/2020	$473.08	20.5
05/10/2020 – 11/10/2020	$484.62	21
12/10/2020 – 18/10/2020	$357.69	15.5
19/10/2020 – 25/10/2020	$634.62	27.5
26/10/2020 – 01/11/2020	$415.38	18
02/11/2020 – 08/11/2020	$473.08	20.5
09/11/2020 – 15/11/2020	$599.82	26
14/09/2020 – 20/09/2020	$461.54	20
16/11/2020 – 24/11/2020	$530.61	23
23/11/2020 – 29/11/2020	$938.00	33.5
30/11/2020 – 06/12/2020	$1,022	36.5
07/12/2020 – 13/12/2020	$602.00	21.5
14/12/2020 – 20/12/2020	$994.00	35.5
21/12/2020 – 27/12/2020	$280.00	10