Velichkov & Velichkov
[2024] FedCFamC1F 150
•14 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Velichkov & Velichkov [2024] FedCFamC1F 150
File number: MLC 7315 of 2022 Judgment of: CARTER J Date of judgment: 14 March 2024 Catchwords: FAMILY LAW – THRESHOLD – Where the applicant seeks a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) – Where the applicant alleges the parties were in a de facto relationship between 1988 and November 2021 – Where the respondent alleges the relationship ended in 1997 or 2000 – Where the applicant bears the burden of proving the existence of a de facto relationship as defined by s 4AA of the Family Law Act 1975 (Cth) – Where the respondent spent most of each year outside of Australia – Where the parties had a relationship as a couple living together on a genuine domestic basis – Where the Court finds a de facto relationship existed between the parties.
FAMILY LAW – PRACTICE AND PROCEDURE – Oral application for leave to re-open – Factors informing the exercise of discretion – Oral application dismissed.
Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) s 4AA
Cases cited: Delamarre & Asprey [2014] FamCAFC 218
Denys v Kellett [2022] FedCFamC1A 223
Fairbairn v Radecki [2022] 275 CLR 400
Jonah & White (2012) FLC 93-522
Lynam v Director-General of Social Security (1983) 52 ALR 128
Shelby & Rylan [2022] FedCFamC1A 143
Sinclair & Whittaker (2013) FLC 93-551
Division: Division 1 First Instance Number of paragraphs: 303 Date of last submission/s: 5 March 2024 Date of hearing: 13 November – 21 November 2023, 23 February 2024 Place: Melbourne Counsel for the Applicant: Ms Renwick Solicitor for the Applicant: Dang Quach Lawyer Solicitor for the Applicant: Coote Family Lawyers Counsel for the Respondent: Mr Nehmy Solicitor for the Respondent: Suke & Associates ORDERS
MLC 7315 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS VELICHKOV
Applicant
AND: MR VELICHKOV
Respondent
ORDER MADE BY:
CARTER J
DATE OF ORDER:
14 MARCH 2024
THE COURT ORDERS THAT:
1.The oral application made by the respondent on 23 February 2024 to re-open is dismissed.
THE COURT DECLARES THAT:
2.Pursuant to section 90RD(1) of the Family Law Act 1975 (Cth), IT IS DECLARED that the parties were in a de facto relationship between 1988 and April 2021.
THE COURT FURTHER ORDERS THAT:
3.The Amended Initiating Application filed 24 November 2022 be listed for directions hearing on 10 May 2024 before a Judicial Registrar.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUSTICE CARTER
The parties agree they were in a de facto relationship that commenced in 1988.
The applicant says that relationship endured for 33 years, and ended in November 2021.
The respondent says that relationship ended in 1997, or at the latest, by mid-2000.
If the parties separated before 1 March 2009, this Court has no jurisdiction to hear and determine the substantive dispute regarding division of assets pursuant to s 90SM of the Family Law Act1975 (Cth) as sought by the applicant in her Initiating Application filed 24 November 2022, and the application must be dismissed.
Accordingly, I must determine when the parties’ de facto relationship came to an end.
ORAL APPLICATION TO RE-OPEN
The evidence concluded on 21 November 2023. On 19 February 2024, and whilst judgment was reserved, the parties contacted chambers and advised that on 10 January 2024, the applicant served on the respondent a Writ and Statement of Claim she had filed in the Supreme Court of Victoria in early 2023. Those documents had not previously been served on the respondent. I note that pursuant to the Supreme Court Rules, a Writ is to be served within one year from the date it is filed. Accordingly, the applicant was not required under those Rules to serve the document before 17 January 2024.
The applicant said the Statement of Claim and Writ were filed in circumstances where;
(a)the applicant filed proceedings in this Court on 5 July 2022. In about August 2022, the respondent asserted the parties separated in 1997. This raised the question of whether this Court had jurisdiction to hear the property dispute;
(b)the respondent advised the applicant via solicitors, in November 2022, that he was in poor health, and was seeking surgery as he was experiencing “diminishing [health] function”; and
(c)the respondent sought in November 2022 to have the joint tenancy in the parties’ co‑owned property to be severed, so that the applicant did not automatically receive the property under the survivorship rule should he pass away.
The applicant said she then commenced Supreme Court proceedings, to be pursued only in the event of the respondent’s death, and only in the event that this Court did not find that the parties were in a de facto relationship at a time that would attract the jurisdiction of Part VIIIAB of the Act. It was submitted on her behalf that:
(a)had the applicant not instituted those Supreme Court proceedings; and
(b)the respondent passed away; and
(c)if ultimately this Court found the parties separated prior to the commencement of the Family Law Amendment (De Facto Financial Matters and Other Measure) Act 2008 (Cth);
the applicant would be shut out of any claim from a property division arising from the parties’ de facto relationship in the state courts.
In the correspondence to chambers dated 19 February 2024, the parties jointly suggested that orders be made for the Writ and Statement of Claim to be received into evidence and the parties then provide short, written submissions as to the effect of the Writ and Statement of Claim.
I did not make those orders, and instead required the parties to attend before me. It is not a matter simply for the parties to reach an agreement between themselves that the Court should re-open a case. Rather, the case law makes it plain that the Court must be satisfied it would be in the interests of justice to do so before exercising its discretion to permit further evidence to be adduced.
Whilst not required to have served the respondent prior to January 2024, in my view the applicant ought to have made it known to the respondent that the proceedings were on foot. It is wholly inappropriate that the documents were not provided to the respondent as they should have been, given the parties’ obligations to provide full and frank disclosure.
I also accept that the evidence could not have been discovered by the respondent any earlier. Additionally, I am satisfied that there is no prejudice to the applicant by reason of the late admission of the further evidence. This is particularly so when the evidence sought to be adduced was known by the applicant and not provided to the respondent prior to the conclusion of the evidence before me.
However, notwithstanding those matters, I am not satisfied that the Court would be better able to do justice in the facts and circumstances of this case if the evidence was re-opened and the documents admitted into evidence. In particular, I am not satisfied that if the Writ and Statement of Claim were admitted into evidence that this would affect the result of the case.
The Statement of Claim pleads, relevantly:
1.At all material times from 1988 to 1997 and beyond, the plaintiff and the defendant lived in a de facto relationship within the meaning of Part IX of the Property Law Act 1958…
…
FURTHER AND IN THE ALTERNATIVE
2. At all times material during and between 1988 and 19 November 2021 (“the period of cohabitation”), the plaintiff and the defendant lived in a de facto relationship within the meaning of the Act.
Again at paragraph 21 of the Statement of Claim, it is pleaded by the applicant that the parties “lived together as husband and wife although not legally married to each other during the period of 1988 and 1997 and beyond”.
Curiously, there is nothing in the particulars that provides any explanation as to why there is any reference to the year 1997. Nor is there any explanation as to the words “and beyond”. Counsel for the respondent said that those words, unsupported by particulars are embarrassing as a pleading and of no material consequence.
Counsel for the respondent further argued that the pleading at paragraph 25 of the Statement of Claim – that in 1997 the parties agreed to use their joint endeavours to acquire property – was contrary to the case put by the applicant during the hearing before me.
It was submitted by the respondent that these paragraphs of the Statement of Claim significantly impugned the credit of the applicant. He was also – understandably – critical of the applicant’s failure to disclose the documents notwithstanding that she provided an Undertaking of Disclosure to this Court. He asserted that the contents of the Statement of Claim added further weight to his closing submission that the respondent’s evidence should be preferred to that of the applicant’s where they diverged.
It will become plain in the reasons that follow that the credit of each of the parties was called into question, and this was not a case where I could confidently prefer the evidence of one litigant over the other.
Moreover, I do not consider the pleadings to impugn the applicant’s credit. A Statement of Claim is not a litigant’s sworn evidence. It is notable that the respondent did not seek to cross‑examine the applicant in relation to the documents, and was content to rely only on written submissions as to the relevance and effect of the Writ and Statement of Claim.
Additionally, I accept the submissions made by counsel for the applicant that there is no inconsistency as to the dates it is asserted the parties were in a de facto relationship in the Statement of Claim and the sworn evidence of the applicant in the proceedings before me. The words “and beyond” in paragraph 1 in my view support the applicant’s case that the de facto relationship continued “beyond” 1997. That is also plain in paragraph 2 of the Statement of Claim.
In relation to the submission that the pleading at paragraph 25 was inconsistent with the case as presented before me, again I note that a Statement of Claim is not the applicant’s sworn evidence. As already observed, no request was made by counsel for the respondent to cross‑examine the applicant on the contents of the Statement of Claim or any alleged inconsistencies between that document and the case as presented before me. Further, I accept the submission by counsel for the applicant that there are alternative pleadings in the Statement of Claim which are not inconsistent with the case run before me.
I also note it was the applicant’s evidence before me that there were joint endeavours or a common intention to acquire property for the parties’ mutual benefit after 1997. That included that the parties were engaged in discussions about acquiring additional properties in 2004 (as referred to in emails from the respondent to the applicant at that time); and the parties’ joint proposal to develop the property at 1 B Street, Suburb C from 2013. The applicant also said she attended inspections of properties prior to the purchase of D Street, Suburb E, and attended the auction at which that property was purchased in the respondent’s sole name.
For these reasons, I do not regard the Writ or Statement of Claim as being so material that the interests of justice require their admission. Accordingly, the application by the respondent to re-open the evidence is dismissed.
For completeness, if the Writ and Statement of Claim should have been admitted into evidence, for the reasons already outlined, my determination would not have been affected. I do not regard the pleadings as impugning the applicant’s credit, or to be inconsistent with the case run before me.
THE LAW
The meaning of a de facto relationship is defined by s 4AA of the Act, with the essential test being whether or not the parties had a “relationship as a couple living together on a genuine domestic basis”; s 4AA(1).
The existence or non-existence of any particular circumstance or fact is not determinative, and no particular finding of any particular fact is required to lead to an overall determination that the relationship was a de facto relationship. None of the matters referred to in s 4AA(2) takes precedence over any other, and the weight I attach to those factors is as seems appropriate in the circumstances of this particular case: Denys v Kellett [2022] FedCFamC1A 223; Jonah & White (2012) FLC 93-522; Sinclair & Whittaker (2013) FLC 93-551.
As observed by the Federal Court in Lynam v Director-General of Social Security (1983) 52 ALR 128 at 131:
… Each element of a relationship draws its colour and its significance from the other elements, some of which may point at one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons … meets the statutory test.
Accordingly, I am required to look at the “composite picture”, and consider all the elements of the relationship in order to determine whether the parties had a relationship as a couple living together on a genuine domestic basis after 1997, and if so, when that came to an end. This is not an exercise of discretion but rather “an evaluative factual determination, taking into account the criteria set out within s 4AA of the Act”; per Austin J in Cantu & Galloway [2023] FedCFamC1F 993 at [25].
That a relationship may appear unusual does not mean it cannot be a de facto relationship and the case law makes it clear that many differently expressed relationships can appropriately attract the legal definition of de facto.
As set out in s 140 of the Evidence Act 1995 (Cth) the standard of proof in these proceedings is to a balance of probabilities. The applicant bears the onus of satisfying that ordinary civil standard. Essentially, the Court must have “reasonable satisfaction” of the alleged facts; see Dixon J (as he then was) in Briginshaw v Briginshaw (1938) 60 CLR 336 at [361]-[362]
For the reasons that follow, it is declared that the parties were in a de facto relationship from 1988 and that it had ended by April 2021. Jurisdiction to grant financial relief between the parties under Part VIIIAB of the Act is therefore enlivened.
BACKGROUND
The applicant was born in Country F in 1956 and emigrated to Australia in 1978. At the start of the relationship, the applicant was running a shop and another business operating between Country F and Australia. She generally worked seven days a week, and took very little leave, until she retired in 2016.
The respondent was born in Country F in 1950 and immigrated to Australia as a refugee. He has operated business interests in Country F and has spent much of each relevant year in Country F working on various businesses. He began operating a company, G Company in 1997. He sold that business in 2016, and after remaining involved to train the new owners pursuant to the contract of sale, he retired not long after the applicant. He now spends the bulk of his time in Australia.
It is not in dispute that the parties commenced a de facto relationship in Australia, in 1988. At the commencement of their relationship both the applicant and respondent were married to other persons, and each had children from those marriages. The applicant has two other children (Mr H and Mr J), and the respondent three (Mr K, Mr L and Ms M). The parties initially lived together in rental accommodation until 1992 at which time they purchased a home in joint names.
The respondent spent six months in Country F in 1992, working on establishing and building up the funds transfer business and looking for other business opportunities. As set out, until he retired, the respondent has had business interests in Country F, and spent considerable time in Country F pursuing those interests. As early as 1994, the respondent rotated his time between Country F and Australia, spending about four months in Country F and then returning to Australia for one month before travelling again to Country F for four months. There were periods where the respondent spent most of each year in Country F, returning to Australia for as little as two months in a year. This continued until about 2019/2020, when he returned to spending the majority of his time in Australia.
It is not in dispute that at all relevant times the respondent stayed at the same premises as the applicant whenever he was present in Australia.
The parties have one child together – Ms N, who was born in 1991. Ms N is now 33 years old. She is married to Mr P.
In 1992, the parties purchased a property at Q Street, Suburb C in their joint names for around $120,000. The applicant resided in this home with Ms N (although Ms N also spent time away from the home being cared for by a nanny).
In 1993 or 1994 the respondent commenced his first business, R Ltd, in Country F. The applicant provided the respondent with $70,000 for this venture. The time the respondent then spent in Country F increased. On each return trip to Australia, the respondent stayed at the Q Street home with the applicant.
The respondent said the parties separated in 1997. It is his evidence that R Ltd was not financially viable, which upset the applicant. He said they argued about this on a return trip to Australia, and that from that time onwards, the parties lived separate lives. That is denied by the applicant.
The respondent then commenced G Company. The respondent continued to spend significant time in Country F, returning to Australia for a maximum of two to three months each year between 1997 and 2007, and then just for one month each year in 2008 and 2009. It is the respondent’s evidence that he had many difficulties establishing G Company in its early stages, and accordingly had to spend protracted periods in Country F to manage the business. He continued to spend more time in Country F each year than he spent in Australia until about 2019. For the duration of each return trip to Australia, he stayed at the same residence as the applicant.
In 1999, the property at Q Street was sold for around $160,000. A property at 1 B Street, Suburb C was purchased in the parties’ joint names, for $220,000, with a mortgage also in joint names. The applicant and Ms N then moved into the 1 B Street property. On each trip the respondent made back to Australia between 1999 and 2016, he stayed at the 1 B Street home with the applicant.
The respondent said that in about mid-2000 the parties had another argument when he was present in Australia. It is his case that if the parties were not separated in 1997, the relationship ended at this time. That is denied by the applicant.
Between 2004 and 2009, Ms N lived primarily with the respondent, in Country F to complete her schooling.
In 2003, the applicant purchased 2 B Street, Suburb C in her sole name.
In 2009 Ms N completed her schooling. The applicant travelled to Country F to attend Ms N’s graduation ceremony. She stayed with the respondent and Ms N.
In 2010, the respondent was diagnosed with serious health issues and spent some time in hospital in Australia. He was hospitalised due to ill health and/or operations on other occasions over the next few years. There is a dispute as to the level of the applicant’s care and concern for the respondent when he was unwell. It is not in dispute that the respondent continued to stay at 1 B Street with the applicant during his recouperation.
The applicant said the parties’ sexual relationship ceased in about 2012.
In mid-2012, the applicant sold 2 B Street, Suburb C. She used the proceeds from that sale to purchase a commercial building at S Street, Suburb C in her sole name.
In about 2013 the parties began discussing developing 1 B Street. Initially the plan was for a unit to be constructed at the rear of the block. Later, the discussions focussed on building a number of apartments on the property.
In about 2014, Mr P started staying at 1 B Street for two to four nights a week.
In around May/June 2016, the respondent sold G Company. He received $8,038,155 for his share of the business, paid out to him over some months. He continued to work as a director until 2018, and gradually spent less time in Country F whilst withdrawing from that business.
In 2016, the respondent purchased D Street for over $1,600,000, and several other properties over the following years. The applicant moved into D Street, as did the respondent, who stayed there on each occasion he was present in Australia. Ms N and Mr P also moved in into D Street and stayed living there until March 2020.
The applicant says the parties jointly moved into D Street with a view to that being their retirement home. The respondent says the applicant was only ever a temporary guest in D Street, invited to stay there only so that the development at 1 B Street could commence.
It is the applicant’s case that her relationship with the respondent began to deteriorate in early 2020, after the respondent returned permanently to Australia. She said it came to an end in November 2021 when she wrote a note to the respondent advising the relationship was over. She moved out of D Street briefly at the end of 2021, following an argument. The applicant then left D Street on a final basis in early 2022.
THE EVIDENCE
The applicant relied on:
(a)her Amended Initiating Application filed on 24 November 2022. That application seeks substantive orders only and not a declaration pursuant to s 90RD(1) of the Act. That declaration is articulated at Part C of the applicant’s Outline of Case;
(b)her trial affidavit filed on 28 September 2022;
(c)her affidavit-in-reply filed on 12 December 2022;
(d)the affidavit of Ms N, the parties’ daughter, filed on 4 October 2023;
(e)the affidavit of Mr P, Ms N’s husband, filed on 4 October 2023;
(f)the affidavit of Ms U, friend of the applicant, filed on 4 October 2023; and
(g)the affidavit of Mr V, translator, filed on 10 November 2023.
The respondent relied on:
(a)his Response to Initiating Application filed on 5 August 2022;
(b)his trial affidavit filed on 16 November 2022;
(c)his affidavit in reply filed on 14 November 2023;
(d)the affidavit of Mr K, the respondent’s eldest son from his previous marriage, filed on 4 October 2023;
(e)the affidavit of Mr L, the respondent’s second son from his previous marriage, filed on 4 October 2023;
(f)the affidavit of Ms W, the respondent’s former employee in Country F from 2014 until 2019, filed on 4 October 2023;
(g)the affidavit of Ms X, the respondent’s employee from 1990 to 2018 for G Company, filed on 4 October 2023;
(h)the affidavit of Ms Y, the respondent’s former employee in Country F from 2008 until 2013, filed on 4 October 2023;
(i)the affidavit of Ms Z, translator, filed on 4 October 2023; and
(j)the affidavit of Mr AA, a friend of the respondent’s, filed on 4 October 2023.
Both parties gave their evidence substantially through an interpreter. This meant there was at times some confusion as to the questions the witness was being asked and the answers being given. I have done my best to make appropriate allowances for this.
Both of the parties gave their evidence in a manner that was favourable to their case.
At times, the applicant did not answer questions directly, overstated matters that supported her case, and asserted she could not recall matters that did not assist her. I formed the impression that the applicant sought to gloss over arguments, or issues the parties’ experienced in their relationship, and endeavoured to portray the parties only as having a very happy and loving relationship at all times.
The respondent’s trial affidavit filed 16 November 2022 emphasised the parties’ lack of communication and the applicant’s asserted disinterest in his life, his work, and his health after 1997. When communications contradicting that evidence were adduced by the applicant, the respondent somewhat changed his position, asserting that whilst the parties separated in 1997, they had some periods of positive communication and they became good friends, or dear friends over the following years. This was not the impression the respondent gave as to the nature of the parties’ relationship in his trial affidavit.
The applicant also gave evidence under cross-examination that contradicted her affidavit evidence. Her evidence, like the respondent’s, was given through an interpreter. That explains in part, but not entirely, some of these inconsistencies and contradictions – with there being obvious misunderstandings and confusion at times in the course of interpretation.
In light of the parties’ presentation as witnesses, this is not a matter where I can comfortably prefer the evidence of one party over the other.
Importantly, the applicant was able to adduce a number of emails, text messages, WhatsApp exchanges, photographs, and other documentary evidence which provided corroboration of her evidence as to the continuation of the parties’ de facto relationship and contradicted that given by the respondent.
The parties relied on a number of witnesses, most of whom appeared to be reliable. I found the evidence of Ms N – who lived with the parties at all relevant times – particularly compelling. Similarly, Mr P presented as a credible witness, who had the opportunity to observe the parties and their interactions over a protracted period.
The evidence of Ms N
It is Ms N’s evidence that she was never made aware that her parents were separating, or that they had separated, until November 2021. Ms N lived with the applicant until 2004, then with the respondent in Country F until 2009. When she returned to Australia, she moved back to live with the applicant, first at 1 B Street, and then moved into D Street. She is, accordingly, well placed to give her observations as to the parties’ relationship, having shared their home and spent considerable time with them both.
Ms N described her parents as having an unconventional and dysfunctional relationship, in which they rarely displayed affection to each other. However, she said her parents shared a bed and bedroom in 1 B Street for some time. She described during the period she was studying in Country F up until 2009, on the occasions she and her father returned to Australia, she and her parents had family meals together at home and at the homes of other relatives. She described that they all went together to attend various family celebrations and gatherings.
Ms N also said when the respondent’s children came over, the applicant would participate on occasion, and that when the applicant’s children visited, the respondent would also participate at the event, if he was present in Australia. Ms N further deposed that the parties shared a vehicle until after they moved into D Street in 2016, and that the respondent would drive the applicant to and from work when he was in Australia (the latter of which was strongly denied by the respondent). She said after her parents moved into D Street in 2016, they hosted a cultural event with the applicant’s extended family.
Ms N also set out her observations that her parents would breakfast together, and go for morning walks together at times they were getting along. She said that the parties’ habit of walking together in the morning continued to be their routine up until a few years after moving into D Street.
Ms N further recalled that when the respondent was in Australia, the applicant put her own activities “on hold” and was home to cook and have dinner as a family every night.
Ms N further set out that her father often complained to her that the applicant was a bad wife and partner, as she was out of the house too much, and left him plates of leftovers instead of cooking fresh food for him. Ms N said her father made these complaints to her in around 2019. It was also a complaint he made in cross-examination. When asked if he had made these complaints to Ms N, the respondent said he was not making complaints, but did say to Ms N that his lifestyle and that of the applicant were different, and being a housewife did not suit the applicant.
Ms N is a qualified professional. She said her father asked her in 2019:
If your mother and I separated, how much of my assets would I have to give her?
Ms N described that her parents’ relationship became increasingly difficult from 2020 onwards. They argued about B Street, and the respondent kept telling the applicant to leave D Street. That is also acknowledged by the applicant. However, Ms N said that until the “last few years of their relationship at [D Street]”, her parents attended gatherings and events together, and gave the impression “that they were from one household”.
Ms N presented as a credible and straightforward witness whose evidence was plausible and consistent. Whilst she is the daughter of the parties, I did not form the impression she was enmeshed with her mother, nor was she a ‘barracker’ for her mother’s case. Indeed, at times Ms N’s evidence diverged from that of the applicant. It was clearly difficult and unpleasant for Ms N and her parents for her to give evidence.
The evidence of Mr P
In addition to Ms N’s evidence, the applicant relied on the evidence of Ms N’s husband – Mr P. He deposed to commencing a relationship with Ms N in 2013 and meeting her parents after that. He stayed two to four nights each week at 1 B Street, and then moved into D Street with the family in 2019. Mr P said when the parties were in 1 B Street and before he moved into D Street, whenever the respondent was present in Australia, Mr P made an extra effort to spend more time at the house, with the parties and Ms N. He said he was in the home about four nights in each week that the respondent was present in Australia, as well as attending family events.
It was Mr P’s evidence that when the respondent was in Australia both at 1 B Street and then D Street, the applicant was normally responsible for preparing and serving the meals that the parties, Ms N and he would eat together. Mr P formed the impression that the applicant attended to home duties, such as shopping and preparing and serving food for the household to eat together.
Mr P confirmed that the parties hosted a cultural event in D Street after moving in. He recalled other visits and events celebrated at the homes when the respondent was in Australia. He said the applicant generally joined the gatherings and celebrations with the respondent and his other children if she was at home. He said when the applicant was present, she assisted with hosting duties, including cooking, serving food and drinks, and cutting up fruit for the grandchildren. Mr P said when the applicant’s children attended, the respondent also participated in those visits when he was in Australia. He said the applicant’s children used to refer to the respondent as “dad”.
Mr P said when his parents met the parties in 2019, they all dined together at a venue, and the parties “presented as a couple”. He said he was never told that the parties had separated, and at all times from 2013 and for the next eight years, the impression he had was that they were “in a marriage-like relationship”.
Mr P’s evidence is that the parties argued after he moved into D Street in 2019, and their relationship became volatile in the months leading up to him and Ms N moving out of D Street in March 2020.
Mr P did not appear to present his evidence in a manner designed to favour the applicant. I found him to be a genuine and reliable witness.
Ms U
Ms U, the carer for the applicant’s mother, provided an affidavit and was subjected to cross‑examination. She conceded there were some significant errors in her affidavit and I give no weight to her evidence.
The evidence of the respondent’s children
Mr L deposed that he only learned about Ms N in 1995 or 1996. He said he was shocked and his mother was upset. He said the respondent only referred to the applicant as “[Ms N’s] mum” and was dismissive about the subject of their relationship. Given the way in which the parties’ relationship began, and the embarrassment caused to the mother of the respondent’s other children, it is unsurprising that the father played down his relationship with the applicant in front of his children. Indeed, Mr L deposed that by 1997 the siblings knew about their father’s relationship with the applicant “but culturally, it was not the type of thing that we discussed”.
The respondent did not introduce his older children to Ms N until 1998, when Ms N was seven years old. Mr L said the respondent never formally introduced them to the applicant, but they knew their father was living with her. The respondent acknowledged he did not tell his children that the relationship with the applicant had come to an end. Like his sons, he said he would not mention such matters.
Mr L deposed that in 2000 his father asked if he could stay with him when he was in Australia, as he was having issues with the applicant. Mr L did not agree that the father could stay with him. Accordingly, the respondent continued to stay with the applicant. Mr L described the parties’ relationship at that time as being at “rock bottom”, and said his father made complaints about the applicant being too money orientated, complained that he could “not ‘get back together’” with the applicant, that he had “had enough” and “that [the applicant] offered him no help with his businesses”. If the parties were not in a relationship at that time, it is difficult to understand why the respondent would expect support from the applicant regarding his business.
Mr L said he did not witness the parties having a conversation together after 2000 when he visited 1 B Street. He said it was only on rare occasions that the applicant was present when he attended 1 B Street as the majority of the time she was out of the house, or would leave when he arrived.
The applicant’s explanation was that she was working full time, from 9.00 am to 6.00 pm, seven days a week, and she recalled being present at 1 B Street when Mr L visited only once or twice over the years. It is not in dispute that the applicant worked those long hours. Accordingly, it is not surprising that Mr L did not witness the parties together.
Mr L deposed that between 2008 to 2012 he visited his father in Country F generally twice a year and stayed with him for two to three weeks at a time. He said he did not recall the parties speaking on the phone, and he said his father did not mention the respondent.
Mr L also said that on the occasion his father arrived back in Australia extremely unwell and was transported immediately to the hospital, Mr L notified family members, including the applicant. He said the applicant did not seem concerned that the respondent was in hospital.
It appeared to me that Mr L at times struggled to give his evidence – seeming on occasion to seek to carefully present the evidence in a way that supported his father’s case. He did not make reasonable concessions and at times made gratuitous criticisms of the applicant. For instance, he said the applicant was disinterested in the respondent’s grandchildren. When the photograph showing a warm embrace between the applicant and Mr L’s daughter in 2012 was produced to Mr L, he said that “someone can smile at you, and stab you in the back”. Mr L also refused to concede the applicant was in a photograph taken at a family dinner in 2015. Similarly, Mr L would not concede a private tour he had proposed for the applicant and respondent whilst on holiday interstate in January 2018 had a romantic flavour. He also said that in 2014, when the respondent wanted to remain with the applicant on Christmas Day, that was because his father had had a falling out with him and would not concede it reflected any desire by the respondent to spend that occasion with the applicant. When questioned about his evidence that the applicant was ‘not part of the family dinners’ when they were at home in D Street, he reluctantly conceded that was because she was in the kitchen cooking for the family.
Mr K said the home at 1 B Street did not reflect his father. He said there were no photographs of the parties, and no items of a personal nature to his father in the premises. He said he recalled his father having a separate bedroom from the applicant in 1 B Street, but conceded this memory must post date 2012 as he was out of Australia between 2007 and 2012. Mr K deposed that if he saw the applicant at D Street it was only “incidentally” and that she did not attend gatherings at D Street. As I will set out later, that evidence is not accurate.
Mr K said he did not see the parties engaging happily in conversation together or being affectionate towards each other. He said they appeared to be “living independent lives but co‑existing”. In cross-examination he acknowledged he was not surprised the applicant had moved into D Street in 2016, as that continued the relationship the parties had had.
The respondent’s additional witnesses
The respondent relied on an affidavit from a Mr AA, who said he had been a good friend of the respondent’s “since the early to mid–2000’s” having met through business contacts. Mr AA said the respondent told him he was divorced (which the respondent is not) but did not speak of the children’s mothers. Mr AA accordingly had no knowledge of the respondent’s relationship with either woman – able only to observe that the respondent did not speak of them. Given the cultural norms outlined by the respondent’s children, it is not surprising that the respondent did not discuss these matters.
Mr AA also said the applicant did not attend an important function that took place in either 2007 or 2008, and the respondent did not ask to bring a partner to Mr AA’s wedding in 2016. It does not seem to me that this evidence adds much to the case, beyond noting that whilst the respondent was quite clearly very proud of his children, he was otherwise quite private about his personal life in his dealings with Mr AA. For instance, Mr AA does not depose whether he knew that the parties had jointly owned a property, and that prior to purchasing D Street, the respondent continued to stay in that property with the applicant whenever he was in Australia.
Mr AA was not required for cross-examination. His evidence is accordingly unchallenged, but it is of little assistance to me for the reasons outlined.
The respondent also relied upon an affidavit of Ms X, who was the respondent’s employee, in Country F, from around mid-1990 until 2018. She performed multiple roles and from 2006, was the assistant manager of G Company. Ms X said the respondent referred to the applicant as “[Ms N’s] mother” and that she overheard him, sometime around 1997/1998, tell other people “words to the effect of him ‘splitting’ with his ‘wife’”. I do not know to which “wife” the respondent was referring to. Ms X said as his employee, she did not discuss this with him, but then later deposed that the respondent told her that he was “’split’ from his children’s mothers”. I do not know when that conversation was alleged to have occurred. Ms X acknowledged that she and the respondent were not friends, and he was her boss. In those circumstances I do not expect the respondent would share much of his personal life with Ms X.
The respondent also relied on affidavits of Ms Y and Ms W, who were his live-in employees from 2008 to 2013 and from 2014 to 2019 respectively. Ms Y said the respondent did not refer to the applicant as his wife, and that the applicant did not sleep in the respondent’s bedroom during her visit to Country F in 2009. However, she also acknowledged she did not see them go to bed each evening.
Ms W said when the respondent travelled to Country F in 2018, the parties did not appear to be in a relationship; there was no affection between them, and the applicant slept in a separate bedroom. She said the respondent did not discuss the applicant other than to say that they were no longer together.
Neither of these witnesses had much opportunity to observe the parties over the course of the many years in question. Each was only able to give evidence about the short visits when the applicant travelled to Country F or what the respondent had shared with them. As is plain, there are clear cultural boundaries in place that would limit the information the respondent would share with his employees. It is unclear whether either witness knew that the respondent returned to a house shared with the applicant each time he travelled to Australia, as they say he made little mention of her at all. In the circumstances of such limited observations, their evidence is of little assistance.
The respondent’s asserted dates of separation;
On the applicant’s evidence, the parties were in a relationship for 33 years. She acknowledged the parties’ relationship had its ups and downs, but she said that it continued until November 2021. She said that the problems in the relationship became more marked during the COVID‑19 pandemic, as a result of the lockdowns. She moved out of D Street briefly at the end of 2021, and then moved out permanently in March 2022.
On the respondent’s evidence, the parties were in a relationship for nine years, ending in 1997. At closing, it was submitted that at the very latest, the relationship endured until 2000.
The respondent asserted that the parties separated on a final basis in 1997 following an argument between the parties about the respondent’s financial issues which occurred when the respondent travelled back to Australia from Country F.
It is the respondent’s evidence that the applicant called him a “financial failure” and told him she no longer wanted him involved in her life. It is the respondent’s case that from this point onwards, the parties lived “totally separate lives”, stopped regularly speaking to the other, ceased their sexual relationship, made major financial decisions without consulting the other and travelled overseas without informing the other.
The respondent further deposed that after this argument:
I was not ever given the impression by [the applicant] that she perceived us still to be a couple beyond 1997, or that our relationship was intact.
and that the applicant was distant towards him from then on, and did not want him involved in her life.
The applicant acknowledged in her oral evidence that she did “make a complaint” about finances in 1997 as the parties had a lot of debts at that time. She denied that this amounted to a breakdown of the parties’ relationship. She also acknowledged that shortly after this incident, she travelled to overseas to City BB without informing the respondent (which the applicant described as a brief business trip). She also purchased the property at CC Street without the respondent’s knowledge. However, she denied the parties thereafter lived totally separate lives.
The respondent conceded he did not explicitly communicate to the applicant in 1997 any statement that the parties had separated or the relationship was over. Nor did the applicant explicitly tell him that. The respondent admitted that when he returned to Country F after this incident, he continued to call the applicant to let her know he had arrived safely, because in his mind, they had not separated. He said that until 2000 he continued to hope for a restoration of the parties’ relationship.
If the parties did not separate in 1997, the respondent asserted they separated in 2000. He deposed that during winter in 2000 he arrived in Australia and again the parties began an argument in the car following the applicant collecting him from the airport. He said he was upset by the applicant’s attitude towards him, “towards the development” and towards the care of Ms N. In 2000, the parties had not discussed any development plans for 1 B Street. It is common ground that such discussions were not underway until about 2013. When this was put to him in cross-examination, the respondent said he did not mean the development of 1 B Street, but meant “the development of life in general”. That was not compelling.
It is the respondent’s evidence that the applicant again called him a failure and told him to find somewhere else to stay. He said she told him she wanted to be paid out her half share in 1 B Street. He said at that time it was clear there would never be any prospect of reconciliation. This is denied by the applicant.
Under cross-examination, the respondent was asked why he did not then seek to sell 1 B Street, given that the parties’ relationship according to him was at an end. The respondent said he viewed the property as the only property he had in Australia and did not think he should sell it. It is unclear to me why he would want to remain financially involved, as joint tenants, with the applicant if the de facto relationship really was over. This is even more so in light of the respondent’s evidence that the applicant told him to find somewhere else to stay when he came to Australia.
The respondent said he made enquiries with his son Mr L in around 2000 as to whether he could stay with him whilst in Australia, which did not suit Mr L. The respondent thereafter continued to return to stay at the same residence as the applicant, and made no other attempt to source housing for himself separately from the applicant. When he later purchased the D Street property, he conceded he invited the applicant to move into that property – although he said that was a temporary arrangement.
The respondent’s evidence that from 1997 or 2000 the parties lived entirely separate lives is inconsistent with evidence regarding communications between the parties which I will set out later in these reasons. The respondent also omitted that the parties undertook a number of holidays together, in 2013, 2016, 2017 and 2018 during which they occupied the same room. His evidence also overlooks the family events and gatherings in which the applicant participated. I will consider those aspects of the evidence shortly.
The nature and extent of their common residence;
It is not in dispute that at all times until November 2021, the parties shared a common residence at all times the respondent was present in Australia. Those residences were as follows:
(a)rental accommodation from 1988 to 1992;
(b)Q Street, Suburb C, purchased in joint names, from 1992 to 1999;
(c)1 B Street, Suburb C, purchased in joint names, from 1999 to 2016; and
(d)D Street, Suburb E, purchased in the respondent’s sole name, from 2016 until March 2022.
It is not in dispute that at least until 1997, even though the respondent travelled frequently and extensively to Country F, that the parties’ relationship remained one in which they shared life as a couple. When the respondent returned to Australia, for a few weeks or a few months, he returned to the home he shared with the applicant and the parties’ child.
The respondent deposed:
During the period 1991 to 2020, I lived mostly in [Country F] and travelled to Australia intermittently…
He further deposed that between 1991 and 1994 he travelled frequently to Country F. His focus at that time was in promoting one of his businesses.
In 1994, the respondent spent one month in Australia for every four months in Country F, spending at total of around two and a half months in Australia that year. The respondent acknowledged that pattern continued in 1995 and 1996 – when it is not in dispute the parties were in a de facto relationship.
According to a document tendered by the respondent, that pattern continued in 1997 and the years thereafter. The respondent’s time in Australia and outside of Australia between 1997 and 2021 was as follows:
Time in Australia (approx.) Time outside Australia (approx.) 1997 3 months 9 months 1998 2 months 10 months 1999 3 months 9 months 2000 2 months 10 months 2001 2 ½ months 9 ½ months 2002 2 ½ months 9 ½ months 2003 2 ½ months 9 ½ months 2004 3 months 9 months 2005 2 months 10 months 2006 2 ½ months 9 ½ months 2007 2 months 10 months 2008 1 month 11 months 2009 1 months 11 months 2010 4 months 8 months 2011 3 months 9 months 2012 4 months 8 months 2013 5 ½ months 6 ½ months 2014 3 months 9 months 2015 3 months 9 months 2016 2 months 10 months 2017 4 months 8 months 2018 4 months 8 months 2019 6 months 6 months 2020 10 months 2 months 2021 9 months 3 months
It is the respondent’s evidence that in the years until G Company became quite profitable, the demands on his time were immense, and he was required to spend protracted periods in Country F to focus on the business.
The arrangement – that the respondent would return to the common residence during periods he was in Australia – continued, unchanged at all relevant times after 1997.
Likewise, when the applicant travelled to Country F, she stayed in the home occupied by the respondent there.
Daily life in the home when the respondent was in Australia
The respondent said he returned to the home with the applicant as a matter of convenience, that being where Ms N was. However, he said that the parties did not cohabit as domestic partners, and lived separate lives. Conversely, the applicant said whenever the respondent was in Australia, the parties maintained their relationship throughout the years just as they had done before 1997/2000, with there being no significant change in the parties’ relationship or interactions after that time.
For instance, the applicant said the parties continued to have meals together, including maintaining their habit of having breakfast and coffee together and then walking together for some exercise. She said that practice continued even after they moved to D Street in 2016, saying “for the first couple of years we took a stroll on the beach every single morning and then we had breakfast together”. She said the respondent continued to call her whenever he arrived safely back in Country F– a practice she said continued until 2019. She said she cooked meals for the respondent, and hosted events for him and his children at the various homes.
As already set out, the applicant’s evidence regarding the day-to-day activities in the home when the respondent was in Australia was substantially corroborated by Ms N and Mr P.
The applicant also collected the respondent from the airport on occasion after 1997. Moreover, the respondent recorded the applicant as the emergency contact on a number of his incoming passenger cards between 2004 to 2018 – and all of them between 2006 and 2015. The respondent became irritated when cross-examined on this point, insisting he put the applicant down for emergencies, because Mr L can be difficult to get hold of, and that the applicant is the mother of his daughter. Notwithstanding that evidence, from 2019 the respondent consistently nominated his son Mr L as his emergency contact on the incoming passenger cards.
The respondent admitted the parties did take walks together after 1997, and that he invited the applicant to join him on walks after moving into D Street in 2016.
I formed the impression that the respondent sought to minimise the domestic duties undertaken by the applicant for his benefit. That included him minimising the role she played in hosting, or supporting him in hosting family gatherings at the home, minimising the extent of the parties’ communications, downplaying the applicant’s level of care for him and overlooking the holidays they enjoyed together. I will return to those matters later in these reasons.
The degree of financial dependence or interdependence, and any arrangements for financial support, between them;
The applicant described the parties has having a “mixture of shared and independent finances” throughout their relationship. They both operated businesses and managed the finances associated with those businesses including the funds transfer business. The applicant also operated her shop and the respondent later established other businesses in Country F.
There was a significant degree of financial independence – with each party managing their own incomes and finances and making their own financial decisions without reference to the other. In the context of the parties being in different countries for much of the time, it is perhaps not surprising that they conducted the day-to-day operations of their business interests substantially independently of the other.
The applicant also purchased properties without requiring the pre-approval of the respondent in 1997 (CC Street), 2003 (2 B Street) and 2012 (S Street). Similarly, the respondent purchased properties without the applicant’s involvement in 2017 and 2020. The purchasing of properties without reference to the other party is a factor that points towards the parties’ relationship having ended. I will turn to those purchases shortly.
Additional evidence of the parties’ financial independence included:
(a)the parties’ taxation returns were at all times filed without reference to the other party;
(b)the parties maintained their own private health insurance, although I do not know when the applicant took out hers. The respondent said he has maintained his singles health cover since 2010. I do not know what cover, if any, he had prior to that time; and
(c)the respondent made significant loans to his children after selling G Company. There was little evidence about this aspect of the matter, but it appears the respondent provided those funds with no reference to the applicant.
However, there were also ways in which the parties remained financially interdependent. They co-owned properties, and both contributed to the mortgages and upkeep of those properties over the years. Their jointly owned property at Q Street was sold in 1999 and 1 B Street was purchased in joint names. The respondent’s explanation as to why the parties would jointly purchase property when they had, as he said, ended their de facto relationship, was that this was for the benefit of Ms N. Of course, it also benefitted him, as he continued to stay in the property, with the applicant, whenever he was in Australia.
In 2013, the parties jointly approached Westpac Bank and obtained a line of credit facility in joint names for $300,000 in anticipation of jointly developing 1 B Street.
At least from the time that G Company became profitable, the respondent also provided the applicant with cash at her request – which he said was for the support of Ms N. He also provided the applicant with cash when he came to Australia, funds to renovate and repair 1 B Street, and funds either from a joint line of credit, or from G Company were used to discharge a mortgage encumbering a property in the applicant’s sole name. If the funds of $458,112 to discharge that mortgage were paid by the respondent from the G Company sale proceeds as he asserted, it is notable that there was no suggestion that there was any loan agreement drawn up about that transaction, or that the applicant would need to repay those monies.
It was also the applicant’s evidence that the parties discussed together how the G Company sale monies should be invested. She said the parties considered property investments, and she attended a number of open-for-inspections, had discussions with agents, and attended the auction at which the property at D Street was purchased. It is agreed that at the conclusion of the auction, the agent took a photograph of the applicant and respondent together in front of the ‘sold’ sign.
It is also not in dispute that when the applicant was residing at D Street, the property at 1 B Street was leased out, and the whole of the rental income was paid to the applicant until September 2021. It is agreed that the applicant used those monies to pay the rates, water bill and insurances for 1 B Street. Both parties included half of the rental income of 1 B Street on their taxation returns – even though it was until 2021 paid only to the applicant.
The ownership, use and acquisition of their property;
The parties purchased a number of properties as follows;
(a)in 1992 the parties purchased Q Street, in joint names;
(b)in 1997, the applicant purchased a property at CC Street, Suburb C in her sole name. That property was sold in 1998;
(c)in 1999 the property at Q Street was sold and the parties purchased 1 B Street in joint names. In about November 2022, the respondent changed the title holding to tenants in common;
(d)in 2003, the applicant purchased a property at 2 B Street in her sole name. That property was sold in 2012;
(e)in 2009, the respondent purchased a home in Country F. He acknowledged he spoke with the applicant about purchasing that property;
(f)in 2012, the applicant purchased a property at S Street in her sole name. She continues to own that property;
(g)in 2016, the property at D Street, Suburb E was purchased in the respondent’s sole name;
(h)in 2016, the respondent purchased a property at T Street, Suburb C in his sole name;
(i)in 2017, the respondent purchased a property at DD Street, Suburb EE in his sole name. He sold that property in 2021; and
(j)In 2019, the respondent purchased a property in FF Street. The property is held on trust and the applicant is not a beneficiary of the trust.
CC Street, Suburb C
In 1997, the applicant purchased CC Street, Suburb C for around $130,000. The applicant did not tell the respondent about this purchase. That property was then sold in 1998 for around $130,000. The applicant retained the proceeds of sale.
The applicant could not recall whether she discussed the sale of the property with the respondent. It does not appear that she consulted the respondent as to the application of the proceeds of sale. She said this was because she considered the purchase and sale of the property to be business decisions, and that she has at all times made business decisions without reference to the respondent.
Purchase of 1 B Street
This property was purchased jointly by the parties in 1999 for $220,000. The parties applied the proceeds of sale from the Q Street property, and also took out a mortgage in joint names.
The applicant said the parties discussed selling Q Street, and that the applicant wanted to purchase a brick house, with a smaller garden. She said the respondent “agreed that [1 B Street] would be a more suitable home for us”.
The respondent said he did not have much to do with the purchase of this property, as he felt it did not concern him, as he would not be living in it. He said the applicant did not discuss the sale of Q Street, or the purchase of 1 B Street with him “in any great detail”. He said he regarded this a merely an exchange of homes for Ms N’s benefit. I note that the applicant’s son, Mr H, and her mother lived at B Street at various times.
The joint mortgage was for $70,000. The respondent said both parties made contributions towards the repayment of that mortgage, which was discharged in early 2012, with the parties each paying one half of the then outstanding mortgage. The applicant denied the respondent contributed consistently towards the mortgage before his business became profitable. She said after that, he provided funds to the applicant to renovate and repair the house – including putting in a new bathroom, and fixing the guttering.
The respondent admits contributing towards repairs for 1 B Street. He said that was because he was a 50 per cent owner of the home.
Proposed development of 1 B Street
It is not in dispute that the parties engaged in extensive discussions regarding the development of this property. The applicant said her vision, first discussed in about 2013, was to build a unit – or a granny flat – at the back of the property, in which the parties would reside, and they would then rent out the front residence. Under cross-examination, the respondent acknowledged the applicant discussed this proposal with him and he had agreed that the parties would then live in the rear unit and rent out the front unit. However he said whilst he agreed with this proposal he said he never liked the idea. He also said that as he was continuing to work in Country F, he “didn’t think much” about the accommodation arrangements.
The parties attended an architecture firm together to discuss possible development plans for a unit at the rear of 1 B Street. They also jointly attended the bank in 2013 and arranged a $300,000 line of credit to fund that development.
The council rejected the parties’ plans for a second unit on the property in about 2014/2015. Not long after that, the parties begin discussing a more ambitious development project on the site, that would involve knocking down the house and building a block of 12 apartments.
There was some focus at trial as to what was agreed regarding the proposed development of 1 B Street. After 2016, with the more ambitious project being considered, this was mostly developed by Mr K and the respondent. The applicant said she understood the agreement between the parties was ultimately that she would have the benefit of two apartments and the rental income that would be generated from those.
The respondent said the applicant at various times wanted to be paid out in cash for her interest in 1 B Street; that she required the mortgage encumbering her property at S Street to be paid so that she could afford to move out of 1 B Street to enable the development could go ahead; and that she wanted to receive three rather than two units. He said the applicant became increasingly difficult to deal with and refused to move out of 1 B Street, thereby stalling the commencement of any development project and his ability to exit from the joint ownership of the property. He said he then offered the applicant to move temporarily into D Street in 2016 so that the work at 1 B Street could commence.
In 2016, the applicant moved into D Street, and 1 B Street was then tenanted. The rental income was received by the applicant. There was little progress on the proposed development of B Street between 2016 and 2020.
In late 2019, the respondent instructed a solicitor to draft a deed of arrangement. Mr K said that was because he had told his father that the ownership of 1 B Street needed to be sorted out before he and the respondent commenced the actual project.
The deed provided for 1 B Street to be divided into apartments and that the applicant would then receive two unencumbered apartments totalling $540,000 in value. The deed was drafted by the law firm and it was signed by the applicant in the absence of legal advice. The respondent said the applicant continued to make progress on the development difficult even after the deed was executed.
In my view the evidence about the proposed development plans regarding 1 B Street, and whether the applicant was to receive apartments, or wanted to be paid out does not provide much assistance in determining the nature of the parties’ relationship when I consider the broader context. The parties continued to have discussions about how the property would be developed. They jointly borrowed funds in 2013 to fund the development plans as they were at that time. Despite the respondent insisting the parties were separated and had been so for at least 16 years, and that the applicant became increasingly difficult to deal with, the parties continued to live in the same residence (when the respondent was in Australia), including that he invited her to move into D Street. The deed, signed in 2020, was never actioned – the respondent took no legal steps to enforce the deed, and alter the ownership of B Street which was owned by the parties as joint tenants until very late 2022. The deed did not include any clause requiring the applicant to vacate D Street when the B Street development was complete.
It is notable that from 2010, the respondent had at times suffered life threatening illnesses. In 2015/2016 he says he was so ill when he arrived in Australia it was expected he would not recover. However, he took no steps to either sell 1 B Street, or seek to hold it with the applicant other than as joint tenants until the deed was drafted in 2020, and then never enforced. It was only in about November 2022 that the respondent made an application to change the title in 1 B Street to tenants in common. It was only in 2022 that the respondent, for the first time, created a will. In that will he made no provision of the applicant. These matters do not sit comfortably with the respondent’s assertion that the parties separated in 1997/2000.
2 B Street
The applicant purchased 2 B Street, Suburb C in 2003. The respondent said the applicant did not tell him about this purchase. The applicant also deposed that she did not discuss the purchase of that particular property with the respondent and conceded she only told him after she paid the deposit on the property.
However, it is clear from contemporaneous emails tendered by the applicant (set out later in these reasons) that the parties at that time were engaged in discussing the acquisition of additional properties. In his oral evidence, the respondent also conceded that he was well aware the applicant had been looking for houses to purchase, and when he returned to Australia the applicant took him to view many houses for sale in the Suburb C area which she was interested in buying. He said “I just…along with that – her wishes or her desire”. He said he did not inspect the property at 2 B Street.
It is the applicant’s evidence that the funds for the purchase of 2 B Street came from her mother, who gifted her $60,000. The applicant said it was purchased in her sole name as the respondent was in Country F a lot of the time, and it was difficult for him to sign documents.
The applicant sold the property in 2012 and used the whole of the proceeds of $550,000 to purchase the property at S Street. She did not discuss the sale of the property with the respondent, nor the application of the proceeds of sale.
S Street, Suburb C
In 2012, the applicant purchased S Street. The respondent was aware of the purchase but was not involved in any decision making regarding it. That is a commercial building, which the applicant used for her retail business and now leases out.
There is a dispute as to how the mortgage of $458,112 on that property was discharged in December 2016. The applicant said the parties, by agreement, withdrew from the line of credit secured over 1 B Street, and used a further $158,000 by way of savings from a joint account.
The respondent said he paid the entire amount from the proceeds of sale of G Company.
As this is a threshold hearing, no discovery has yet occurred. It is a little difficult to piece together from the handful of bank statements and other documents tendered how funds were applied. For the present purposes I do not regard it as necessary to determine how the mortgage was paid. What is important is that on either parties’ version, there has been a significant intermingling of funds – with the applicant asserting the funds from G Company were applied to repay the joint line of credit that had been used, together with joint savings, to repay the mortgage encumbering a property owned in her sole name – and the respondent asserting that the funds from G Company were used directly to pay that mortgage. As already observed, there is no suggestion that a loan agreement was drawn up by the respondent, nor terms of repayment discussed, notwithstanding that on his evidence he provided those funds to the applicant’s benefit more than 16 years after they separated.
D Street, Suburb E
In 2016 the respondent purchased D Street, unencumbered for over $1,600,000. The applicant lived in that property until she moved out briefly at the end of 2021, and then moved out permanently in May 2022. Ms N moved in in 2016 with the applicant. Mr P lived there from 2019 until 2020 when he and Ms N moved out together. The respondent also lived in that property at all times he was present in Australia. He continues to reside in that home.
It is the applicant’s evidence that the parties inspected several homes for them to move into prior to the purchase of D Street. She said she attended inspections of some properties that the respondent wanted to purchase. However, she said she was working full time, and could not come to all the property inspections. It is common ground the applicant went to see D Street on the day of the auction, and was present at the auction when the property was purchased.
It is the applicant’s evidence that whilst the property was purchased in the respondent’s name, it was purchased with the shared intention of this being their mutual home in which the parties would enjoy their retirement. She denied that she moved into D Street as a temporary arrangement.
The respondent said that Mr L found the property for him. He said the applicant was invited by him to stay, temporarily at D Street, until the block of apartments at 1 B Street were completed, and that he only invited her to stay as a guest, so that she would vacate 1 B Street and the development could commence. He acknowledged the applicant was present at the auction for D Street. He said he invited her “last minute” as he wanted to know she would agree to stay there whilst 1 B Street was being developed.
That is inconsistent with what Mr L deposed was the reason the respondent gave him for the applicant’s presence at the auction. Mr L said his father told him that as D Street was to be Ms N’s new home, he was keen for the applicant to see it to know where Ms N would be living.
The parties posed for a photograph together in front of the auction sign when the respondent was the successful bidder. The respondent said that because the real estate agent suggested the parties pose together and invited the applicant to join the photo.
Whilst the applicant was living at D Street, the property at 1 B Street was leased out. The applicant received the rental income, which she applied towards the mortgage at 1 B Street, and towards the utilities at D Street, and to purchase groceries for the household.
The applicant acknowledged that from 2019, the respondent did ask her on a number of occasions to move out of the D Street property.
Purchases of properties by the respondent from 2017
In relation to T Street, it is agreed the applicant informed the respondent that this property was on the market. It is also agreed that she provided $1,000 to the agent as the initial deposit. That deposit amount was repaid to her at settlement. It is notable the respondent relied on the applicant to liaise with the agent in this manner, rather than seeking assistance from his adult children.
In relation to DD Street, it is agreed that the applicant was not involved in the purchase, or the subsequent sale of this property in mid-2021. It is the respondent’s evidence that he sold the property to buy the applicant’s share in 1 B Street. However, that did not occur.
In relation to FF Street, it is agreed the purchase of that property – or how it would be held – was never discussed between the parties. The applicant has never been to that property.
The respondent’s purchasing of these properties, substantially separately from the applicant, and without her input or agreement is a factor that points towards the de facto relationship having come to an end.
The nature of the parties’ relationship;
It is the respondent’s evidence that after 1997, the parties lived independently, and slept independently whilst they were under the one roof. He deposed:
… everything stopped in 1997. We shared no intimacy, no life together and no holidays.
He also said the parties did not talk about their personal lives, what they wanted for the future, everyday plans, their business activities, or well-being.
I do not accept that evidence. It is inconsistent with a number of communications the applicant adduced between the parties and with his own oral evidence regarding the many discussions he had with the applicant over time. The parties also holidayed together. I will return to these matters shortly.
Sexual relationship
The applicant said the parties continued a sexual relationship until 2012, when the respondent’s health issues increased. She said the parties slept separately from then on as the respondent’s complex health needs made it difficult for them to share a bedroom. She said at that time her mother (who had been living at 1 B Street until 2012) moved out, leaving a bedroom spare, and the applicant vacated the parties’ joint bedroom and moved into the bedroom vacated by her mother. She said the parties generally shared a bedroom when she visited the respondent and Ms N in Country F as well prior to that time.
The respondent said the parties’ sexual relationship ended in 1997. He said he never shared a bedroom with the applicant in 1 B Street and that his health issues did not impact on his sexual function. In his oral evidence, he acknowledged in 2012 he was diagnosed with a sleep disorder, that he was taking a lot of medication that caused his body to swell, that his health was poor at that time, and that he used a sleep aid machine for a few months in 2013.
I accept that Ms N was predominantly cared for by a nanny, and only slept at 1 B Street one night per week when she was younger. However, she recalled her parents sharing a bed a both Q Street, and at 1 B Street. She said she had clear memories of this as she also got into her parents’ bed, with them, on many occasions when she was younger in both houses. Her recollection was that the parties did not move into separate bedrooms immediately when they moved into 1 B Street, but continued to share a bed and bedroom in 1 B Street “after some time”.
As already noted, Mr K conceded that his recollection of the parties sleeping in separate bedrooms must have been after 2012 as he was living in Country F between 2007 and 2012.
There is no dispute that the parties maintained separate bedrooms when they moved into D Street.
It is not possible to determine exactly when the parties ceased their sexual relationship. However, I am satisfied that separate bedrooms were set up in 1 B Street, in about 2012, and there was no sexual relationship after that time. This accords with Ms N’s recollection. It also accords with the evidence that the applicant’s mother vacated 1 B Street in 2012, thereby freeing up a bedroom. It is also consistent with the respondent’s health and sleeping issues.
Despite sleeping in separate bedrooms at home from 2012, when the parties travelled together over the following years, they continued to share a bedroom, although they slept in separate beds. Further, whilst the respondent deposed that the parties were no longer romantically involved after 1997, the communications he sent to the applicant in 2003/2004 contradict that evidence. I will turn to those communications shortly.
The respondent’s health
It is common ground that the respondent has experienced significant health issues, including being diagnosed with multiple illnesses. Between 2010 and 2017 he was hospitalised on a number of occasions. That included two admissions for operations in either 2007 or 2013 and 2017, and an admission to the intensive care unit.
When the respondent first had an operation, Mr L said he provided a lot of support to his father and was primarily responsible for taking him to medical and specialist appointments when he was incapacitated. Given the applicant’s long working hours it is understandable that another family member needed to provide this support to the respondent.
In about 2010, the respondent was hospitalised and required a significant operation. The applicant said she visited the respondent at the hospital at that time on a number of occasions. The respondent said she visited once, to drop Ms N off, and otherwise did not attend the hospital at all.
At some point when he was in Country F the respondent again became very ill. Neither of the parties, nor their witnesses were able to accurately recall the date this occurred and at various parts of the evidence this was said to have occurred in 2012, in late 2014/early 2015 or late 2015/early 2016. What is agreed is that the respondent arrived back in Australia extremely unwell, and was rushed to the hospital by ambulance straight from the aeroplane. The applicant did not attend the airport.
The respondent was admitted into the intensive care unit. Mr L informed the family, including the applicant, of the respondent’s poor health and hospital admission. He said the applicant did not sound concerned, did not rush to his father’s side, and that he cannot recall her attending at the hospital or contacting him regarding the respondent’s health.
That is denied by the applicant, who said she was very concerned and she attended the hospital on a number of occasions, although her long work hours impacted on her availability to visit the respondent. When being cross-examined, it seemed the applicant’s memory of specific visits was not clear. However, I note this occurred at least seven years ago, there have been a number of times the respondent has been hospitalised over the years, and different years were given as to when this actually happened by the parties and their witnesses.
In terms of the applicant’s visits to the respondent in hospital over the years, she deposed to having seen the respondent’s niece at a visit in about 2010. The respondent conceded his niece did work at the hospital. The applicant also deposed to meeting (and naming) one of the respondent’s treating practitioners who had also stopped by to visit him.
In relation to a hospitalisation in late 2012, the applicant tendered a text exchange between Ms N and Mr K in which Ms N referred to her father being in hospital, and that he had forgotten his phone at home and was using the applicant’s. That suggests the applicant had attended at the hospital and provided him with her phone to use. The respondent said he could not recall this occurring. When the text exchange was put to him, the respondent smirked and said that “for sure I never used her phone”.
In mid-2013 the respondent had another procedure in hospital. He said the applicant did not visit him. However the applicant tendered a text exchange between Ms N and Mr L in which Ms N wrote:
Apparently that’s what he told my mum when she visited this morning, and told her to spread the word.
That exchange provides further support to the applicant’s evidence that she did, indeed, visit the respondent in hospital. It is not consistent with the respondent’s evidence that the applicant only visited him once in hospital when she brought Ms N in to see him.
The respondent underwent another operation in about 2017 or 2018. The respondent was initially confined to a wheelchair. The applicant said that when the respondent was recovering, he recuperated at their shared home, and she did what she could to meet his needs, including emptying his urine container (although she only did this once as he was embarrassed and preferred his son to undertake this task) and preparing food and drinks for him. Mr L provided considerable assistance to the respondent at that time. The respondent would not admit that the applicant cooked food for him, but acknowledged that the applicant did cook food which she left in the fridge and he ate that food when she went out to work. He also reluctantly admitted she did not provide no help for him at all, but that she did bring him water, and provided him with “simple” assistance.
The respondent asserted that when the applicant did accompany the respondent on these trips and holidays, it was as a friend and co-parent of Ms N. However, two trips were without Ms N – being those in 2016 and 2017. The sleeping arrangements, in my view, do not support a finding that the parties were travelling as friends.
Moving into D Street
The respondent was out of the country when settlement occurred in late 2016. In his absence, the applicant attended to moving the parties’ chattels and belongings from 1 B Street into the D Street property. She said that included most of the furniture, such as the television, beds, artwork, cabinets, and the parties’ karaoke machine. The respondent acknowledged the dining table in D Street came from 1 B Street.
The respondent said his daughter Ms M attended to furnishing D Street with new furniture and equipment. He said he wanted all new furniture, but agreed to the applicant bringing some furniture from 1 B Street as she said she would take it with her when she moved out of D Street, and he did not want to argue with her.
The applicant admitted Ms M did contribute towards the furnishings, but said she used the applicant’s credit card to effect purchase of furniture online. No documents were produced to corroborate – or contradict – this assertion. The respondent said he paid for the furniture, and paid for a number of improvements. That included paying for a new fence and gate, for about $20,000, at the request of the applicant.
Mr K’s evidence was that he was not surprised that the applicant moved into D Street. He said he did not know what the intention was with the applicant moving into the property and said:
I guess what happened was – they have always kind of – whenever he was in Australia, he did have the same house – he came back to the same house so they continued that kind of relationship with themselves.
The utilities were connected in the applicant’s name, and she was responsible for the payment of them, utilising the rental income from 1 B Street to do so. The respondent said the applicant organised the connection of the utilities in her name without his consent. The respondent said he paid for the rates for D Street from 2016 until 2020. After that time, the B Street rental income was also applied to pay the rates at D Street.
Ms N occupied the top floor in D Street. The parties occupied separate bedrooms on the ground floor. The applicant admitted that in March 2020 when the respondent had to quarantine upon returning from Country F at the commencement of the COVID-19 pandemic the parties lived quite separately, including using separate doors to enter and exit the home. She said that was a temporary arrangement only. The applicant also deposed to arranging a small fridge at the door of the respondent’s room for his use during quarantine, that she stocked with food and beverages for him.
The applicant said the parties hosted a number of events together in D Street including a lunch to which many members of her family attended to see the new home, and a number of dinners with his and her children. The respondent denied the parties hosted functions to celebrate their new home. I have already set out the evidence that supports the applicant’s assertions that the parties hosted family events and celebrations.
In March 2020, Ms N and Mr P moved out of D Street. It is the applicant’s evidence that from then on, the relationship between the parties started to deteriorate. It is not in dispute that on a number of occasions in 2020 the respondent told the applicant to ‘get out’ of the D Street home during arguments. The applicant said the respondent would later deny having said that.
In December 2021 the applicant moved out briefly, before returning to D Street. She subsequently moved back to 1 B Street in March 2022 and the parties have not shared a common residence since that time.
The care and support of children;
The parties’ relationship produced one child, Ms N, who was born in 1991. A nanny was employed by the parties to care for Ms N on almost a full-time basis.
Ms N lived in Australia until late 2003/early 2004. At that time, the parties agreed Ms N would move to Country F to complete her education. She continued to live primarily in Country F, until she completed her secondary education in 2009. The respondent said the applicant paid for half of Ms N’s school fees.
Ms N then returned to live in Australia, and resumed living at 1 B Street, before moving into D Street in 2016.
It is not in dispute that the parties have provided good care of and support for their daughter. They have obviously worked cooperatively together for her benefit.
The respondent also provided some support to the applicant’s children – allowing her sons to stay with him in Country F in 1997. The applicant’s son Mr H lived in B Street on and off until about 2010/2011.
I have already set out the evidence regarding the functions for the respondent’s children to which the applicant contributed.
The reputation and public aspects of the relationship.
It is the respondent’s case that post 1997 the parties did not hold themselves out as two people sharing life as a couple. I do not agree.
I have already set out the evidence of the parties’ witnesses, and my acceptance in particular of the evidence of Ms N and Mr P, as to the manner in which the parties acted towards each other. I have referred also to the real estate agent inviting the applicant to pose with the respondent at the auction of D Street, the parties’ holidays and sleeping arrangements on those trips and the social gatherings hosted inside and outside the parties’ homes. I note further the evidence of the respondent that he put on a “positive front” for Ms N at all times.
Mr L similarly noted that the parties presented as a united pair, but described this as a façade.
I accept that the parties did not display much physical affection towards each other. I accept that there are cultural reasons for this. I also note in a text message exchange with the respondent’s children in March 2020 – in the context of the respondent returning to Australia during COVID-19 – Mr P described that the parties’ only contact would be in the kitchen and that the respondent spend most of his day in his room. He also wrote that he had never seen the parties make physical contact. At trial, Mr P said he was being somewhat comical in that exchange, and that in reality over the years he had seen the parties sit together, walk together, and take photos together, as well as having observed the respondent putting his arm around the applicant.
Photographs
The applicant tendered several photographs of herself and the respondent at various times including;
(a)Photographs of the parties in 2009, in Country F when the applicant attended there for Ms N’s graduation. The applicant is leaning into the respondent in one photograph. In another, the respondent has his arm around her shoulder. In another photo, the applicant is standing in front of the respondent, facing the camera and he has his hands on her hips. The parties ‘present as a couple’ in these photographs which appear quite intimate. The respondent deposed that the parties were putting on a “united front for [Ms N]”;
(b)a photograph sent by Mr L to Ms N in 2012 of the applicant giving his daughter a hug. This occurred at a Lunar New Year celebration at which the parties and the respondent’s extended family were in attendance; and
(c)a photograph of the parties in 2017 interstate. They are standing close to each other, with their arms touching.
The photographs provide some support for the applicant’s narrative.
Family funerals
In 2015, the respondent’s mother died. The respondent and Mr L attended the funeral in Country F. The applicant did not attend. She said the respondent told her that she did not need to attend, and he would put out flowers on behalf of the applicant, the applicant’s mother, and Ms N.
In 2018, the applicant’s mother died. The respondent was in Country F and promptly returned to Australia to attend that funeral. The respondent said he had remained friendly with the applicant’s mother, and “considered her and treated her as I would my own mother”. He had continued to communicate with her, and visited her regularly when he was in Australia, visiting her together with the applicant, up until she passed away.
The respondent is listed as the son-in-law in the funeral book entry. He also wore a traditional clothing item which the applicant said is worn by the son in law to the deceased. The respondent said that he was uncomfortable wearing the item, which was at the applicant’s request, and felt awkward doing so. He said he was not consulted about his name being included in the list of family members. The inclusion of the respondent in the list of family, and his wearing of the clothing item does suggest the parties were regarded publicly and within their community as being spouses.
The children’s marriages
I accept the parties did not attend the marriages of their children from previous relationships, although they were invited to attend some of these special events. Mr K invited the applicant to his wedding in 2006, but she did not attend. However, she did gift Mr K’s wife a necklace as a wedding gift. Mr K said he invited the applicant as she was a nice person, who her father had been living with whenever he was in Australia, she had been very nice to him, and it was the respectful thing to do.
The applicant was not invited to Mr L’s wedding in 2007, or Ms M’s wedding in 2010. Mr L acknowledged it would be strange if the applicant was invited to a function where his mother was also attending. The respondent was not invited to Mr H’s wedding in 2009 or Mr J’s wedding in 2015.
I am satisfied it would have been awkward and uncomfortable for the applicant to attend the respondent’s children’s weddings, as their mother would also have been in attendance. Similarly, the respondent’s presence at the weddings of the applicant’s children would have been potentially embarrassing. That is, the lack of invitation and the failure to attend was to ensure the marrying child’s biological parent did not feel uncomfortable. I do not regard it as a reflection of the status of the relationship between the applicant and respondent.
CONCLUSION
Parties do not have to live together, full time, or even at all for them to be in a de facto relationship; Fairbairn v Radecki [2022] 275 CLR 400 at [32]–[36]. That the respondent in the present matter lived abroad for protracted periods does not preclude a finding that they remained in a de facto relationship.
Their Honours in Fairbairn observed at [39] that “living together” should be construed as meaning sharing life as a couple, but there is no prescription as to how a couple can arrange to do that. Their Honours observed that the language of section 4AA of the Act:
39.… is sufficiently broad to accommodate the great variety of ways a de facto relationship may exist.
Their Honours also noted that parties may continue to have some sort of relationship with each other after their de facto relationship has ended. That is, a complete cessation of any relationship is not necessary. What the Court must focus on is the nature of that relationship and whether it meets the statutory test prescribed in the legislation.
Subsequent to that decision, the Full Court in Shelby & Rylan [2022] FedCFamC1A 143 observed:
19.The High Court has arguably clarified that parties do not need to live together in order to be in a de facto relationship if they are sharing life as a couple. This however does not mean that every couple sharing life is necessarily living in a de facto relationship. The Court must have regard to all of the evidence, including to the matters referred to in s 4AA(2) of the Act. On one view, the phrase “sharing life” is simply a general summary of the s 4AA(2) circumstances.
In this matter, for the bulk of the years in question, the applicant resided in Australia, and the respondent was predominantly in Country F. Notwithstanding, I am satisfied that having regard to all the circumstances of the parties’ relationship, and taking into account all the factors that I must, they had a relationship, as a couple living together on a genuine domestic basis, and shared life as a couple until 2021. In coming to that finding, I am evaluating the evidence, as a whole – it is a composite picture of all the elements of the relationship.
What emerged from the evidence is that little changed for the parties in terms of their financial or social arrangements from the years preceding 1997 – when the parties agree they were in a de facto relationship – up until 2021. The respondent’s travel overseas for extended periods for work commenced when it is agreed the parties were in a de facto relationship, albeit that after 1997 his travel was more extensive.
Whilst the respondent spent most of his time in Country F, when he was in Australia, he and the applicant shared a common residence. On the occasions the applicant travelled to Country F, they also shared a common residence. The arrangement that the respondent returned to the shared accommodation in Australia – across three different homes – continued unchanged throughout the years.
The parties’ financial dealings with each other – including co-owning property, renovating, and repairing jointly owned property, and holidaying together – continued after 1997, after 2000 (being the alternate dates the respondent gives for the end of the relationship) and until 2021. It is notable that the parties shared a bedroom on each occasion that they holidayed together. The parties also celebrated some special occasions together if the respondent was in Australia, including cultural celebrations, Christmas, and the respondent’s birthday.
There was also some continued intermingling of funds – with the applicant receiving all of the rental from B Street once it was rented out in the later years, and using those funds to make various payments for joint expenses (such as rates and contributing towards bills) – and with the respondent providing additional cash payments to the applicant, including on his evidence, using funds from the sale of G Company towards the payment of the mortgage encumbering the S Street property in the applicant’s name in 2016.
In 2013, the parties also discussed building a unit at the rear of 1 B Street to live in, went together to see architects to assist with the design, and then jointly borrowed funds to undertake what would have been a joint project.
Whilst there was some evidence of financial interdependence, and mingling of funds, there was also evidence that the parties maintained financial independence. The applicant’s decision independently of the respondent to purchase and then sell properties including CC Street in 1997 provides some support to the respondent’s assertion that by 1997 or 2000 the de facto relationship had ended. Similarly, the respondent’s decisions to purchase and sell properties in 2017 and 2020 points away from the parties’ continuing to be in a de facto relationship. I should add, however, that in relation to the purchase of the property at 2 B Street, the respondent was well aware the applicant intended to purchase property at that time.
It appears that the applicant made her own decisions about the parties’ finances – and about the funds in her control – generally without reference to the respondent. This was characteristic of the way the applicant operated prior to 1997; it is not apparently in dispute that the applicant has at all times – including prior to 1997 – maintained control of the income which came to her. The respondent referred to the applicant not paying him a salary in 1990 to operate the funds transfer business in Country F, but rather that she provided him with “occasional ‘pocket money’”. He deposed that:
Until we separated in 1997, [the applicant] controlled our finances for the most part, managing both the funds coming in and going out. Up to 1997, typically when I went somewhere … [the applicant] would give me a few hundred dollars for petrol and pocket money for everyday expenses … [The applicant] was so controlling only giving me pocket money, never a proper salary.
Some of the parties’ financial transactions had a commercial flavour. For instance, in 1994 – when the parties were undoubtedly in a de facto relationship – the applicant provided the respondent with $70,000 which according to the respondent was a loan that was to be repaid.
The applicant’s management and control of income provides some context to her decisions to purchase, sell and use of the proceeds of sale of property without consultation with the respondent, and to her requirement that her business was reimbursed the $1,000 deposit she provided for the purchase of the T Street property.
The Full Court found no error in the trial Judge’s approach in Delamarre & Asprey [2014] FamCAFC 218 of according little weight to the parties maintaining separate finances in her assessment as to whether they were in a de facto relationship. The Full Court accepted the trial Judge’s observation, that “financial independence is not uncommon in modern relationships”, being an observation their Honours said was “undoubtedly true”, at [19].
Whilst it may not be apt to describe the extant matter as representing a ‘modern’ relationship, it can also not be readily described as a ‘traditional’ relationship. Moreover, the question of financial dependence or interdependence is just one of the many considerations I am to take into account – and there is evidence of both.
It is not in dispute that the parties did not socialise frequently with all their children together. This was the arrangement pre-1997 and did not alter after that time. I accept the applicant’s long work hours impacted on her ability to participate in events with the respondent’s children – and there were cultural reasons that prevented each party engaging more fully with the other party’s children. There is evidence that after she retired, the applicant did participate in more family events, including cooking some special meals for the respondent and all his children. The parties also jointly hosted a cultural celebration at D Street.
I accept that the parties’ frequency of communication decreased over the years. That does not to me seem unusual or unexpected over the course of a long relationship. Importantly, the evidence of the communications produced by the applicant does not support the respondent’s assertion that after 1997 this was limited to matters regarding Ms N or the development of 1 B Street. Rather, the communication adduced by the applicant (patchy as that was) was consistent with the continuation of a genuine domestic relationship up to the end of 2020. It went well beyond matters regarding Ms N. Moreover, and in contradiction to his trial affidavit, in his oral evidence the respondent conceded that up until 2021 he had many conversations with the applicant about his business. The emails in 2003/2004 were loving and caring. The later text messages whilst the parties lived in D Street were of an ordinary, domestic nature.
The respondent continued to record the applicant as his next of kin on all incoming passenger cards between 2006 and 2015. He only completely ceased nominating her as such in 2018. The respondent had other family members he could have nominated (Mr K turned 30 and Mr L turned 28 in 2006), and his repeated naming of the applicant adds to the evidence that the parties were in a de facto relationship well after the time the respondent said the relationship had ended.
It is not in dispute that once G Company became profitable the respondent provided the applicant with cash payments when he attended in Australia. The respondent also provided the applicant with additional cash amounts as requested by her when he was in Country F, and contributed to the 1 B Street mortgage. Whilst the respondent said these funds were to protect his joint interest in 1 B Street, and for the support of Ms N, the provision of funds is also consistent with the continuation of the parties’ de facto relationship.
That the respondent, on his evidence, discharged the mortgage encumbering S Street from the G Company proceeds, without any reference to this being a loan, is supportive of the applicant’s case, as is the respondent’s failure to take any action to alter the title of 1 B Street until 2020. As already observed, the respondent then took no steps to enforce the deed.
I accept the parties had arguments in 1997 and in 2000. There were also times from around 2020 that the respondent asked the applicant to move out of D Street. But arguments such as these can of course occur in an intact domestic relationship. I take those arguments – and what followed from those arguments – into consideration when weighing all of the evidence.
Whilst some of the evidence pointed to the parties having separated earlier as asserted by the respondent, the conglomeration of all the evidence makes it plain that the de facto relationship continued well past the date the respondent claims the parties separated, and into 2021.
However, I am satisfied that by the time of Ms N and Mr P’s wedding in 2021, the parties’ relationship had come to an end. They had ceased taking morning walks together. In the previous year the parties’ arguments and disagreements had intensified. The applicant said the respondent locked her out of the house on one occasion, and took down lots of her photographs from the walls at D Street. The applicant also said the respondent physically intimidated her during disagreements, which was witnessed by Mr P.
At the cultural ceremony shortly before Ms N’s wedding, the parties did not sit together. At the actual wedding, they sat with a chair in-between them. They did not walk in together at the reception, and whilst they were seated at the same table at the reception, they did not sit together, and did not mingle or socialise together at all.
Whilst the applicant said the parties’ relationship continued until November 2021, for the reasons outlined, I am satisfied the parties were, by the time of Ms N’s wedding, living separate lives under the one roof, and their relationship could no longer be described as one in which they lived together on a genuine domestic basis.
I certify that the preceding three hundred and three (303) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carter. Associate:
Dated: 14 March 2024
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