TRUSWELL and BONELLI

[2018] FCWA 120

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: TRUSWELL and BONELLI [2018] FCWA 120

CORAM: O'BRIEN J

HEARD: 13 & 14 JUNE 2018

DELIVERED : 5 JULY 2018

FILE NO/S: PTW 7570 of 2016

BETWEEN: MS TRUSWELL

Applicant

AND

MR BONELLI

Respondent

Catchwords:

JURISDICTION – Whether the relationship of the parties is properly characterised as a de facto relationship – Where the applicant lived in one of two houses owned by the respondent and he lived in the other – Evaluation of factors indicating de facto relationship – Where the applicant has made representations to government agencies inconsistent with her case – Application dismissed.

Legislation:

Family Court Act1997 (WA)
Interpretation Act 1984 (WA) s 13A
Family Law Act 1975 (Cth) s 4A
Marriage Act 1961 (Cth)
Evidence Act 1906 (WA) s 11

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Self Represented Litigant
Respondent	:	Mr Lacerenza

Solicitors:

Applicant	:	Self Represented Litigant
Respondent	:	G A Lacerenza & Associates

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

In the Marriage of Elias (1977) FLC 90-267

In the Marriage of Jordan (1997) FLC 92-736

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

MW v Director-General, Department of Community Services (2008)

82 ALJR 629

Pelka v Secretary, Department of Family and Community Services (2006)

151 FCR 546

S v B (No 2) (2004) 32 Fam LR 429

Truman and Clifton [2010] FCWA 91

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

Background

1[Ms Truswell] (“the applicant”) filed an application on 5 December 2016, seeking orders for the alteration of property interests. She alleges that she was in a de facto relationship with [Mr Bonelli] (“the respondent”) from 2001 until September 2016.

2The respondent denies that the parties were ever in a de facto relationship, and seeks the dismissal of the application.

3The matter for determination is whether the parties were ever in a de facto relationship such as to enliven the jurisdiction of the Court to make orders for alteration of property interests between them.

4The applicant presently lives in a property at [Property A] (“Property A”) and the respondent lives in a property at [Property B] (“Property B”). Both properties are owned by the respondent.

The law

5It is common ground between the parties that their relationship lasted for more than two years and that they were both resident in Western Australia throughout. It is, accordingly, common ground that the Court has jurisdiction to entertain the application for alteration of property interests if, and only if, the relationship of the parties is properly characterised as a de facto relationship.

6The term “de facto relationship” is not defined in the Family Court Act 1997 (WA) (“the Act”). For the purposes of the Act, the relevant definition is that contained in the Interpretation Act 1984 (WA) (“the Interpretation Act”), which provides as follows:

13A.De facto relationship and de facto partner, references to:

(1)A reference in a written law to a de facto relationship shall be construed as a reference to a relationship (other than a legal marriage) between 2 persons who live together in a marriage‑like relationship.

(2)The following factors are indicators of whether or not a de facto relationship exists between 2 persons, but are not essential —

(a)the length of the relationship between them;

(b)whether the 2 persons have resided together;

(c)the nature and extent of common residence;

(d)whether there is, or has been, a sexual relationship between them;

(e)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;

(f)the ownership, use and acquisition of their property (including property they own individually);

(g)the degree of mutual commitment by them to a shared life;

(h)whether they care for and support children;

(i)the reputation, and public aspects, of the relationship between them.

(3)It does not matter whether —

(a)the persons are different sexes or the same sex; or

(b)either of the persons is legally married to someone else or in another de facto relationship.

(4)A reference in a written law to a de facto partner shall be construed as a reference to a person who lives, or where the context requires, has lived, in a de facto relationship.

(5)The de facto partner of a person (the first person) is the person who lives, or lived, in the de facto relationship with the first person.

7As was observed by French J in Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546 at [47]:

The judgment to be made is difficult and, once out of the range of obvious cases falling within the core concept of ‘marriage - like’, will be attended by a degree of uncertainty. Indeed, it may be that different decision-makers on the same facts could quite reasonably come up with different answers.

8In MW v Director-General, Department of Community Services (2008) 82 ALJR 629 at [13], Gleeson CJ made the following observations:

…The cohabiting parties to many relationships, especially first relationships of the “short-lived and childless” kind, may be surprised to be told that they are involved in a relationship and the nature of marriage or civil union. They may intend no such thing. The same may apply to some people in longer-term cohabitation who have chosen not to marry. It is the common intention of the parties as to what their relationship is to be, and to involve, and as to their respective roles and responsibilities, that primarily determines the nature of that relationship. The intention need not be formed in terms of legal status: to some people that is important; to others it is a matter of indifference… The intention may be expressed, or it may be implied. What is relevant is their intention as to matters that are characteristic of a marriage or a civil union, but that do not depend upon the formal legal status thus acquired. To describe a relationship as being in the nature of marriage implies a view about the nature of marriage. The same applies to a civil union. It is unnecessary, for present purposes, to attempt a comprehensive account of the features of a relationship that might justify such a description. Plainly, “living together” is not enough.

9Section 13A of the Interpretation Act sets out factors which are “indicators” of a de facto relationship, none of which are “essential”. That is in accordance with the observations of Fitzgerald J in Lynam v Director-General of Social Security (1983) 52 ALR 128 at 131 (“Lynam”), when he said:

Each element of a relationship draws its colour and its significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error.

10It is necessary also to bear in mind the difference between the definition of “de facto relationship” in the Interpretation Act and that found in the Family Law Act 1975 (Cth) (“the Family Law Act”) when considering decisions made in proceedings under the latter legislation.

11As I pointed out to the parties at the status hearing, “de facto relationship” is defined in s 4AA of the Family Law Act as a “relationship as a couple living together on a genuine domestic basis”. It might be argued by some that there is a distinction to be drawn between a relationship meeting that definition and a “relationship between two persons who live together in a marriage‑like relationship”.

12The Marriage Act 1961 (Cth) defines marriage as “the union of 2 people to the exclusion of all others, voluntarily entered into for life.” Apart from the voluntary nature of the union, there are two components to that definition; exclusivity and an intention of permanency. Those components are not present in the Family Law Act definition of “de facto relationship”.

13In my view, neither are they present in the relevant definition of “de facto relationship” in the Interpretation Act, notwithstanding its reference to a relationship being “marriage-like.”

14So much is apparent from the express terms of s 13A(3) of the Interpretation Act, which provides that:

It does not matter whether –

(a)the persons are different sexes or the same sex; or

(b)either of the persons are legally married to someone else or in another de facto relationship.

15Section 13A(3)(b) is important not only to exclude any strict requirement of exclusivity; the statutory acceptance of the possibility of two contemporaneous de facto relationships means that as a matter of logic, the fact that two parties are not living under one roof “full-time” cannot of itself mean that their relationship does not meet the statutory definition.

16The observations of Thackray CJ in Truman and Clifton [2010] FCWA 91 at [335] to [338] are apposite:

We live in a pluralist society in which concepts of even the most fundamental institutions, such as marriage, are highly value laden. Some of the components I have described of the relationship between Mrs Clifton and Mr Truman would be seen by some as consistent (or at least not inconsistent) with the concept of marriage and yet be seen by others as anathema to that concept.

In the case of legal marriage we have the certainty associated with the certificate of marriage. No matter how appalling the nature of the relationship, those who have complied with the formal requirements of the Marriage Act 1961 (Cth), or its overseas equivalents, are without doubt married. However, the moment a construct such as “marriage-like” is introduced, value judgments will come flooding.

It may well be there are men (and women) who enter into marriage, fully intending to carry on, or at least leave open the possibility of, sexual relationships with others. There are no doubt men (and women) who treat their spouse badly from the very moment they enter into their marriage. There are no doubt marriages in which the wealth or potential wealth of one party is the major inducement to join the union. There are marriages in which husband and wife keep strict accounts, never intermingling what they regard as “theirs”. Some prospective spouses enter into agreements about how their financial issues will be resolved in the event their marriage ends – a phenomenon now regulated by our legal system.

How then is a judge expected to decide whether a relationship between a man and a woman (or indeed under this legislation same-sex couples) is “marriage-like” in circumstances where married couples straddle the spectrum from the deliriously happy to the homicidally estranged?

17As the Full Court of the Federal Court said in Lynam:

“In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.”

18It is the applicant who must prove cohabitation of the required quality: S v B (No 2) (2004) 32 Fam LR 429 at [49].

19As appears below, an issue was also raised because of statements made by the applicant to government authorities which, on their face, contradict the case presented by her to the Court. Counsel for the respondent referred to the principle espoused by Goldstein J in In the Marriage of Elias (1977) FLC 90-267 (“the Elias principle”). As observed by Chisholm J in In the Marriage of Jordan (1997) FLC 92-736, the application of the principle must be a matter of discretion. As his Honour put it at 83,926-7:

“…When a party has made representations of fact to third parties and has gained advantage from so doing, it is open to the court in subsequent proceedings… to decline to accept from that party evidence which contradicts those representations.”

The applicant as a self-represented litigant

20At the status hearing listed of the Court’s own motion, I gave the applicant a copy of s 13A of the Interpretation Act to ensure that she had a proper understanding of the matters which she needed to address. At the same hearing, I explained to her the nature and purpose of cross-examination and the need for her to give notice to the respondent of her intention to cross-examine any of his witnesses.

21At the commencement of the trial, I explained to the applicant the steps that I was required to take to ensure procedural fairness. I informed her of the manner in which the trial was to proceed, the order in which evidence would be given and submissions made, and her right to cross-examine. I confirmed my earlier explanation of the importance of cross-examination and the likelihood that evidence that was not challenged on cross-examination would be accepted.

22I explained to the applicant her right to object to inadmissible evidence. I explained that if any change in the usual procedure was requested by the respondent’s counsel that might cause any disadvantage, I would alert her to her right to object and would determine any objection on its merits.

23I also explained my obligation to attempt to clarify the substance of any submissions the applicant might make, so as to ensure that I properly understood her case as she wished it to be put.

24In addition, at the status hearing, I gave the applicant a copy of s 11 of the Evidence Act 1906 (WA) and explained her right to initially decline to answer questions if she thought that to do so might incriminate her. Further, during the course of the applicant’s closing submissions, I explained to her the Elias principle so that she could address any issue arising from it if she so chose.

25I am satisfied that the applicant understood the information that I provided to her and that the trial proceeded in a manner which afforded procedural fairness to both parties.

The parameters of the factual dispute

26Facts relevant to a number of the indicators referred to in s 13A(2) of the Interpretation Act were not in dispute. It is helpful to set out the parameters of the dispute at this point.

27The applicant alleges that the parties were in a de facto relationship for a period of 15 years from 2001 until September 2016. The respondent asserts that the parties were “boyfriend and girlfriend” only from 2001 until 2006, and were thereafter good friends.

28The applicant alleges that the parties were residing together from 2001 until 2006, saying that the respondent would stay overnight at the home occupied by her “regularly maybe 1 or 2 nights, sometimes a week or, maybe not quite a week, maybe 3, 4, 5 nights” and that she would stay overnight at the home occupied by him only “briefly, 1 or 2 nights”.

29The respondent says that the parties never resided together.

30The applicant alleges that the parties had a sexual relationship from 2001 until late 2015. The respondent acknowledges that the parties had a sexual relationship, but says that it ended in 2006.

31The applicant acknowledges that there was never any joint ownership of property, that the parties at no stage had a joint bank account, and that there were no joint borrowings. She did not suggest that she had provided any financial support for the respondent, nor that their finances had ever been in any sense intermingled. At the start of the trial, she acknowledged that she had given the respondent about $150 per week for a couple of years at the start of the relationship, with that payment being associated with her occupation of Property A, but asserted that since then she has lived in that property rent free. As will be seen, her evidence in that regard changed over the course of the trial. She pointed to the respondent’s provision of accommodation for her, and the fact that he occasionally gave her small amounts of money, as demonstrating a degree of financial dependence. On her evidence, the respondent told her during the relationship that he had made provision for her in his will, leaving her the sum of $50,000 from an estate which the parties agree has a current value of approximately $1.27 million.

32The respondent said that from 2001 until 2006 he received rent from the applicant for her occupation of the property owned by him. He said that thereafter he had provided her with no financial support, but had allowed her to remain in that property rent free. He said that otherwise he had occasionally given her $50 to pay for food when it was arranged that she would do the cooking for a joint social event or he would visit her for a roast dinner.

33It was common ground that both parties acquired and owned all their property individually and that, apart from the disputed positions as to time spent overnight together, there was no joint use of property.

34It was common ground that there was no relevant care for or support of children. The applicant does not have children, and the parties interacted on a social basis only with the respondent’s adult children.

35The degree of mutual commitment by the parties to a shared life, and the reputation and public aspects of their relationship, were matters very much in dispute.

Evidence relied upon at trial

36The applicant relied on the following affidavits:

(a)her affidavit filed 21 December 2017;

(b)her further affidavit filed 27 February 2018; and

(c)affidavit of her witness, [Mr A], filed 10 October 2017.

37The applicant also called 2 witnesses under subpoena – [Ms A] and [Ms B]. Both were cross-examined by counsel for the respondent, as was Mr A.

38The respondent relied on the following affidavits:

(a)his affidavit filed 16 November 2017;

(b)affidavit of [Ms C], filed 16 November 2017;

(c)affidavit of [Ms D], filed 29 January 2018;

(d)affidavit of [Ms E], filed 29 January 2018;

(e)affidavit of [Ms F], filed 29 January 2018;

(f)affidavit of [Ms G], filed 29 January 2018;

(g)affidavit of [Mr B], filed 29 January 2018;

(h)affidavit of [Ms H], filed 29 January 2018; and

(i)affidavit of [Ms I], filed 29 January 2018.

39Ms D, Ms E, Ms F and Ms H were not required by the applicant to present for cross-examination. The respondent’s other witnesses were cross-examined by the applicant.

Observations as to the evidence

40The applicant was an unconvincing witness. There are a number of inconsistencies between her affidavit evidence and the evidence as it emerged at trial as outlined further below. She appeared very firm in her views not only as to the nature of the parties’ relationship but also as to what she would perceive to be her proper entitlements, and conscious of the connection between the two. Significant parts of her evidence gave the distinct impression of conscious or unconscious reconstruction to meet present needs.

41The respondent was, for the most part, a straightforward and convincing witness. Importantly, his evidence was consistent with that of other witnesses, with documentary evidence, and with the agreed facts. He made a number of concessions against interest without any apparent hesitation.

42Where the evidence of the parties was in conflict in relation to factual matters within the knowledge of each of them, I preferred the evidence of the respondent.

43The applicant’s witnesses called under subpoena, Ms A and Ms B, both gave their evidence in a straightforward and apparently honest manner. That said, with no disrespect to them, their evidence did not assist in determining matters in issue.

44Mr A was available for cross-examination by telephone only. There were inconsistencies in his evidence. While he suggested in his affidavit that the respondent had told him “in early September 2016” that he had twice asked the applicant to marry him “lately”, under cross-examination, he suggested that happened three to four years ago. In the course of his cross-examination, it became apparent that his contact with the parties during the relevant period was infrequent, and that while he had the impression that they were “together”, he had no detailed knowledge of the status of their relationship.

45Ms G, the respondent’s ex-wife, who lived with the applicant at Property A for a period of about eight months in 2014, was cross-examined only briefly. She gave her evidence in a direct manner, without apparent evasion. I regarded her as a truthful witness.

46Ms I, the respondent’s daughter, was also cross-examined only briefly. Her evidence was, with no disrespect, somewhat vague but I did not form the impression that she was other than honest in her responses.

47Mr B, a former work colleague and still friend of the respondent, was an impressive witness. He was clear in his recollection of facts, but careful to qualify impressions he had formed by acknowledging that they were no more than that. He was firm in his rejection of the proposition put to him by the applicant that he had seen her at Property B on several occasions and, indeed, seemed somewhat bemused by her insistence that he had. I accept his evidence.

48Ms C, the respondent’s current partner, also presented for cross-examination in which she was unshaken. She too gave her evidence in a direct and straightforward manner, and I regarded her as being truthful. I accept her evidence.

49As already noted, the respondent’s other witnesses were not required to present for cross-examination. Their evidence is discussed where relevant below.

The evidence

50It is common ground that the parties began a personal and sexual relationship in or about July 2000, shortly after the applicant began working for the respondent at the [employment agency] he then operated. At the time, the respondent was living at Property A and the applicant was living in separate accommodation.

51In late 2001, the respondent moved into Property B. At about the same time, the applicant moved into Property A. The parties verbally agreed that the applicant would pay the respondent approximately $150 per week for her occupation of that property; the respondent characterised those payments as rent, whereas, by the time of trial, the applicant sought to characterise them as contributions by her to the expenses associated with the property.

52I find that the agreed weekly payment of $150 was a condition upon which the respondent permitted the applicant to move into Property A, and that his characterisation of the payments as rent is accurate.

53The applicant fell into financial difficulties, associated at least in part with the resolution of her financial relationship with her former husband. She stopped paying rent, but the respondent did not ask her to move out of Property A.

54In her first two affidavits filed for the purposes of trial, the applicant made no mention of any rental payment. Rather, she stated that “some years ago” the respondent had various water accounts changed into her name “as a tenant” without discussing the matter with her, before going on to say that she paid those accounts most of the time, but that he paid when she could not. It was not until she filed a responding affidavit on 27 February 2018, after the respondent had raised the issue of rent in his affidavit material, that she said:

(a)she “initially gave him around $150 per week, but not always”;

(b)the payments were not regular, that they were in cash, and that there were no records of them; and

(c)when she was no longer employed, she “paid the water rates and gave him money towards the Shire rates when [she] had available funds”.

55Under cross-examination, the applicant admitted that she had paid the respondent rent from 2001 until 2006.

56In her responding affidavit, the applicant said:

“I have given him a lot of money over the years, and when I sold my house I gave him a large sum approximately $20,000 to help with various expenses on the property”.

57Under cross-examination, the applicant admitted that, having not paid the periodic rent due for some considerable time, she paid the respondent the sum of approximately $24,000 from the sale of her property in or about 2005. While she initially sought to dispute the characterisation of that payment, she eventually admitted that it had been calculated as the amount by which she was in arrears on her rent.

58The respondent’s evidence was that the sexual relationship between the parties ended in 2006. Having maintained in her affidavit material that the relationship between the parties was constant and continuous from its commencement until 2016, and that she “regularly went to [Property B] for meals and would often stay over”, under cross-examination, the applicant said:

(a)she stopped staying over at Property B “around 2009”;

(b)over the years there had been “quite a few breakups” and arguments;

(c)“something changed” in 2006/2007 when they had a “big argument” and that they were apart for “maybe a couple of months”; and

(d)at that time, she considered moving to [City A].

59The applicant’s evidence that “something changed” in 2006/2007 is consistent with the respondent’s evidence that the nature of the relationship fundamentally changed at about that time. A letter written by the applicant to the respondent on 5 August 2007 was acknowledged by her to have been written at a time when their relationship had broken down. In that letter, she expressed her love for the respondent, that she missed him, and asked that he “please do not forget [her] and visit [her] sometimes.”

60In the same letter, the applicant said (errors as they appear in the original):

“Honestly I’m sick off staying at home and being on my own all day and night. And I know this women you are seeing, you don’t really care about your just out for a good time to escape the realities of your life”.

61The respondent has consistently maintained that throughout his relationship with the applicant, both during the period when he admits a sexual relationship and in the later years when he asserts that the parties were simply friends, he had other social and sexual relationships with a number of women. On his case, the applicant knew that. On the applicant’s case, she did not. While the passage quoted above from the applicant’s letter is of course not conclusive, it is not inconsistent with the respondent’s evidence.

62Ms H gave evidence that she met the respondent at a [social] event in 2013 and, shortly thereafter, they commenced a sexual relationship which lasted for approximately six months. She says that thereafter they agreed that it was better to be friends. She said further that her understanding was that the applicant and respondent had been “close like girlfriend and boyfriend” a very long time earlier. Her evidence was unchallenged.

63Ms E gave evidence that she first met the respondent in 2011 and that, as they became friendly, he mentioned that he owned Property A which was occupied by “a friend of his who didn’t pay rent”. She also gave evidence that she was aware of the respondent’s relationship with Ms H and his subsequent relationship with Ms C. Her evidence was unchallenged.

64Ms F gave evidence that she met the respondent in 2011 and, for a short time thereafter, they had a sexual relationship and have since remained friends. She met the applicant in about 2015 when she popped in to visit the respondent at Property B and the applicant was there having lunch with him. She did not observe anything to indicate anything other than a friendship. Her evidence was unchallenged.

65The applicant’s evidence was that she worked full-time until approximately 2005/2006, and, thereafter, relied on [government] benefits and some income from casual work.

66Documents produced from the Department of Human Services revealed that at no stage did the applicant suggest to the relevant department that she was in a de facto relationship. Further, the documents demonstrate that:

(a)on 7 May 2003, the applicant’s marital status was described as “separated”;

(b)on 27 June 2007, the applicant described her current marital status as “divorced” and did not mark the form at the appropriate place to suggest she was in a de facto relationship;

(c)on 13 July 2007, she declared that she was a “non-home owner and renting” and that she did not live in shared accommodation, while describing her marital status as “separated”;

(d)on 7 November 2007, she made a declaration that she was a non-homeowner, not living in shared accommodation, and paying private rent of $150 per week, while again describing her marital status as “divorced”;

(e)on 3 April 2009, she made a declaration that she was a non-homeowner, not living in shared accommodation, and paying private rent of $150 per week, while describing her marital status as “divorced”;

(f)during a job capacity assessment on 30 March 2011, she informed the department that she “live[d] in stable accommodation as she [was] indefinitely house sitting for a friend”; and

(g)during an interview on 20 April 2012 to update her status for the [an allowance], she stated that she was not paying rent, but was house sitting “for free for a friend”.

67Prior to trial, on 18 May 2018, the applicant had filed an application seeking orders whereby the documents produced by the Department of Human Services would be excluded from evidence. That application was dismissed by consent at the status hearing.

68I find that the fundamental nature of the relationship between the parties changed in about 2006, as asserted by the respondent. I accept his evidence that thereafter the parties no longer had a sexual relationship, but maintained a close friendship.

69The evidence of the various witnesses, which I accept, supports a conclusion that the public perception of the relationship between the parties was that they were boyfriend and girlfriend, but not living together, until about 2006, and were thereafter close friends. That is consistent with the respondent’s evidence.

70I do not regard the findings above as being in any way inconsistent with the agreed position that the parties remained in very regular contact after 2006, socialising together, attending some family gatherings together, and going away on holidays for which they each met their own expenses. Similarly, I do not regard them as inconsistent with the agreed position that when the parties went away on holidays together they shared a room and a bed. The respondent’s firm evidence was that, on those occasions, the parties did not resume a sexual relationship; the applicant’s evidence was that they did. As already noted, to the extent the factual evidence of the parties conflicted and was not capable of independent verification, I preferred the evidence of the respondent.

71Even if I am wrong as to the continuation of a sexual relationship between the parties beyond 2006, as appears below, that would not alter my conclusion in relation to the central issue.

72I am required to consider whether the parties resided together and the nature and extent of common residence. As already noted, I accept the evidence of the respondent in preference to that of the applicant in relation to this issue.

73Even if I did not, it is noteworthy that, even on the applicant’s case at its highest, the parties throughout their relationship maintained separate homes, in circumstances where there is no evidence of any necessity to do so or, indeed, any reason to do so other than simple choice. That, in my view, weighs heavily on the necessary consideration of the extent to which the parties made a mutual commitment to a shared life even over and above the consideration of whether they in fact “lived together”.

74There was no financial interdependence between the parties. They did not own or acquire any joint property, even to the extent of joint bank accounts. The applicant paid the respondent rent for her occupation of Property A; the fact that the respondent visited there regularly, and that both did some maintenance and other work on the property is, in my view, insignificant. That the respondent permitted the applicant to continue to live in that property when she said she could no longer afford to pay rent, and when he could afford to allow her to stay, is consistent with his evidence as to their abiding close friendship and does not, in my view, support a conclusion that he was committed to a shared life or that the relationship was “marriage-like”.

75It is fair to observe that by allowing the applicant to remain living in the property, the respondent was effectively providing her with financial support and that she was to a degree financially dependent upon him. While those are matters properly to be taken into account as indicators of whether or not a de facto relationship existed, on the facts of this case, they demonstrate no more than generosity on the part of the respondent and an acceptance by the applicant of that generosity. The apparent transition of that acceptance into expectation on the part of the applicant does not alter my conclusion.

76As already noted, the evidence of other witnesses as to the reputation and public aspects of the relationship is consistent with the evidence of the respondent.

77It is important to recognise also that it is the degree of mutual commitment by the parties to a shared life that is an indicator of a de facto relationship. It may well be that, as she says, the applicant maintained a relatively consistent commitment to what she regarded as being a life shared with the respondent; that does not, of course, mean that the commitment was mutual. I find that at no stage did the respondent have a genuine commitment to a shared life with the applicant.

78It follows that I conclude that at no stage was the relationship between the parties “marriage-like”. I record that even if I had accepted the evidence of the applicant over that of the respondent as to the living arrangements between the parties in the period 2001-2006, I would still conclude that their relationship in that period could not properly be characterised as a de facto relationship.

Conclusion

79It is for the applicant to establish that the parties were in a de facto relationship, by reference to the non-essential indicators of the existence of such a relationship set out in s 13A(2) of the Interpretation Act.

80In my view, she has not discharged that onus.

81The application of the applicant filed on 5 December 2016 will be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

LH
ASSOCIATE

5 JULY 2018