Ward and Trench

[2013] FamCA 478

FAMILY COURT OF AUSTRALIA

WARD & TRENCH [2013] FamCA 478

FAMILY LAW ─ DE FACTO RELATIONSHIP ─ Where the applicant sought a declaration in relation to property settlement proceedings that a de facto relationship existed between the applicant and the respondent ─ Whether the parties were living together on a “genuine domestic basis” ─ Where there is no doubt that the parties had a sexual relationship during the agreed period of their cohabitation and subsequent to that period ─ Where the parties combined their funds for various purposes and shared expenses ─ Where it was common ground that the parties shared household chores ─ Where it was consistent with the evidence of all witnesses that the parties represented themselves as a couple ─ Where there was a significant degree of mutual commitment to a shared life ─ Where the Court found that taken together, the evidence supported a finding that the applicant and the respondent lived together in a de facto relationship ─ Where the Court made a declaration pursuant to s 90RD of the Family Law Act1975 (Cth) that a de facto relationship existed between the parties

Family Law Act 1975 (Cth) ss 4AA, 90RD, 90SM
Family Law Amendment (De facto Financial Matters and Other Measures) Act 2008 (Cth)
De Facto Relationships Act 1984 (NSW)

Barry and Dalrymple [2010] FamCA 1271
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Johnson v Johnson (2000) 201 CLR 488
Jonah and White [2001] FamCA 221
In the Marriage of Cierpiatka (1999) 25 Fam LR 548
Nelson v Nelson (1995) 184 CLR 538
Roy v Sturgeon (1986) 11 Fam LR 271

APPLICANT: Ms Ward

RESPONDENT: Mr Trench

FILE NUMBER: SYC 1426 of 2012

DATE DELIVERED: 21 June 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 23 & 24 May 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Blackah

SOLICITOR FOR THE APPLICANT: G & D Lawyers

RESPONDENT: Respondent in Person

Orders

1. The Court declared pursuant to s 90RD of the Family Law Act1975 (Cth) that the parties lived in a de facto relationship from 15 September 2006 until 21 May 2011.

2. Leave is granted to either of the parties to restore the proceedings to the list for directions in relation to the substantive proceedings on giving seven (7) days written notice to the Court and each other.

3. The costs of the proceedings to date are reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ward & Trench has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1426 of 2012

Ms Ward

Applicant

And

Mr Trench

Respondent

REASONS FOR JUDGMENT

Introduction

1. By her Application filed 13 March 2012, Ms Ward (“the applicant”) sought orders for settlement of property and damages for assault. The present hearing relates to a declaration sought in relation to the property settlement proceedings, pursuant to s 90RD of the Family Law Act 1975 (Cth) (“the Family Law Act”) that a de facto relationship existed between the applicant and Mr Trench (“the respondent”) between 15 September 2006 and 21 May 2011.

2. The respondent sought that the declaration not be made.

3. The onus is on the applicant to establish that a de facto relationship, within the meaning in s 4AA of the Act, existed between the parties.

Written evidence

1. The applicant relied on:

   Initiating application filed on 13 March 2012

   Affidavit of Ms Ward filed on 17 December 2012

   Affidavit of Mr A filed on 17 December 2012

   Affidavit of Ms B filed on 17 December 2012

2. The respondent relied on:

   Response to Initiating Application filed 13 April 2012

   Affidavit of Mr Trench sworn or affirmed and filed 22 February 2013

   Affidavit of Mr Trench sworn or affirmed and filed 25 March 2013

   Affidavit of Mr Trench sworn or affirmed and filed 6 December 2012

   Affidavit of Mr Trench sworn or affirmed and filed 12 November 2012

   Affidavit of Mr Trench sworn or affirmed and filed 14 September 2012

   Affidavit of Mr C filed 22 February 2013

   Affidavit of Mr D filed 22 February 2013.

   Affidavit of Ms E filed 22 February 2013. 

   Affidavit of Mr F filed 22 February 2013. 

   Affidavit of Ms G filed 27 February 2013. 

   Affidavit of Ms H filed 25 February 2013

   Affidavit of Ms I filed 4 March 2013

The hearing

1. The matter was listed for hearing over two days commencing on 23 May 2013. The respondent appeared without legal representation. Ms H, by leave granted unopposed, acted as a McKenzie’s friend for the respondent. She was not required for cross-examination in relation to her evidence.

2. It must be said that the respondent was under a considerable disadvantage. The respondent is a man of obvious intelligence and was polite and cooperative. However, most of his cross-examination was ineffective. Many of the challenges made in cross-examination were trivial and did not go to the thrust of the testimony concerned. For example time was spent on challenging the applicant’s evidence about a certificate of independent advice given to the respondent in relation to an agreement. It transpired that there was no challenge to the fact of the advice, nor to the existence of the certificate, the complaint was about a clerical error, that the applicant had annexed the wrong certificate to her affidavit.

3. The applicant was cross-examined about her evidence that she paid $500 to the respondent for expenses. The challenge resulted in the concession that $195 of that was reimbursement to the respondent from the applicant for a hat he paid for on his credit card. There was no challenge to the proposition that she paid him money for household expenses, which was the point of the evidence. Further, the challenge elicited evidence, not proffered by the applicant, of the financial cooperation between the parties, long after the respondent contends that the de facto relationship broke down.

4. Credit is due to the applicant’s counsel for taking a very practical approach to the conduct of the trial, including for example, not taking technical objections.

5. At the conclusion of the trial the applicant’s counsel made submissions. The respondent asked for permission to provide written submissions. That was not opposed and it was ordered that the respondent’s submissions be provided by email to the Court and to the applicant’s solicitor by 4 pm on 29 May 2013 and that any written submissions in reply from the applicant be provided by email to the respondent and the Court by 4 pm on 6 June 2013.

The Parties

1. The applicant was born in 1959 and as at the date of the hearing was 54 years of age. The respondent was born in 1950 and as at the date of the hearing was 62 years of age.

Background Facts

1. In March 2006 the parties met in Sydney at a trade show and began dating. Over the next few weeks the parties commenced a sexual relationship which continued for several years.

2. In April 2006 the parties spent a weekend together in the Blue Mountains, NSW.

3. Between April 2006 and August 2006 the parties spent nights together at their respective apartments.

4. The applicant said that on 15 September 2006 the respondent moved into her apartment at Suburb J. The applicant contends that this was the beginning of the parties’ de facto relationship. The respondent states that at that time he still lived at his own apartment and did not move into the Suburb J apartment, full time until November 2007.

5. In January 2007 the parties holidayed together, with friends in northeastern NSW.

6. In November 2007 the parties first saw a relationship counsellor.

7. In late 2007 the parties discussed getting married.

8. The impression from the common ground evidence is one of an engagement to marry.

9. The applicant asserts that the parties opened a joint bank account with the Bendigo Bank. The respondent rejects that proposition and there is no physical evidence to confirm the contention.

10. In December 2007 the parties each contributed to a deposit on an investment apartment they intended to jointly buy in Suburb K.

11. Also in December 2007 the parties travelled to New Zealand together.

12. In January 2008 the parties formed the L Trust. They were both beneficiaries. They established the trust to jointly purchase the Suburb K apartment ‘off the plan’. The trustee company was Mana Pty Ltd, with both parties as directors and shareholders. The applicant explained, without complaint, that “[Mana]” was a reference to the first two letters of their first names. The parties each held one share in the company and were both directors. The respondent was the secretary.

13. On 10 January 2008 the parties, as officers of Mana Pty Ltd, passed a resolution to purchase an apartment at Suburb K. The purchase did not proceed and Mana Pty Ltd was deregistered in October 2012.

14. The applicant said that in mid 2008 the respondent proposed marriage to her. The respondent disagrees. However, the parties did discuss marrying each other in Europe in August 2008.

15. In February 2009 the applicant asked the respondent to move out of the home. The respondent did not move out. The respondent contends that from that time the parties were living separately under one roof. The applicant contends that the relationship subsequently resumed.

16. The applicant contends that the parties’ sexual relationship continued at that time and the respondent asserts that it did not.

17. In April 2009 the parties celebrated the applicant’s 50^th birthday.

18. In late May 2009 the respondent moved out of the Suburb J apartment at the request of the applicant. The applicant would have it that the parties resumed their relationship, albeit that they each maintained their own accommodation.

19. In November 2009 the parties separated for a further three to four weeks.

20. In December 2009 the parties holidayed together in northeastern NSW.

21. In April 2010 the applicant accompanied the respondent on a business trip to Melbourne.

22. In July 2010 the applicant moved in with the respondent at his Suburb M apartment.

23. In August 2010 the parties travelled to Europe together to visit family and friends of the respondent.

24. In October 2010 the parties signed a ‘binding financial agreement’ listing the dates of relationship as 15 September 2006 to 29 May 2009.

25. In October 2010 the applicant organised the respondent’s 60^th birthday party.

26. In December 2010 the parties holidayed together in New Zealand.

27. The applicant alleges that in March 2011 the respondent assaulted the applicant resulting in a broken collar bone. The respondent claims that he and the applicant had an accident where they tripped and fell over and the impact broke the applicant’s collarbone.

28. The applicant claims that the relationship ended on 21 May 2011. She moved out of the Suburb M apartment over the following days.

29. The respondent was charged with assaulting the applicant on two occasions. The charges were dismissed.

Introduction

1. Credit assumes some significance in determining the proceedings as many of the factual disputes fall to be determined without any independent corroboration. That said, the central issue is one of interpretation rather than fact and many of the facts are agreed.

2. The applicant was either not challenged at all or was not successfully challenged in relation to most of her evidence. She made some assertions about matters that she could not substantiate. For example she deposed to the parties opening a joint account with the Bendigo Bank. The respondent rejected that proposition and there is no other evidence to support the contention. During cross-examination of the respondent it was put to him that the account in question could have been opened in the name of the parties’ company Mana Pty Ltd. The respondent did not know about that. Learned counsel for the applicant would not have put that proposition without justification. It follows that there is no certainty about the earlier proposition. The applicant was firm in her answers and was not caught out in relation to any significant untruth.

3. To my observation the respondent generally tried to give accurate responses during his cross-examination. At one point he was asked about the meaning he intended by using a certain phrase and was challenged about his facility in English. He said that although he was educated in 4 languages – Dutch, French, German and English, and although he has lived in Australia for 10 years he still thinks in Dutch. The phrase in question appears in an email that he sent to a friend of his on 19 December 2010. He wrote: “Still with [Ms Ward], my kiwi chick, pic attached, going on 5 years in March”. It was put to the respondent that he intended to convey that they had remained in a de facto relationship for nearly 5 years. He rejected that proposition. Some allowance should be given to the respondent for his written and oral communication being in a second (or subsequent) language. Given that the central issue is whether the characteristics of the parties’ relationship meets a statutory definition, the respondent can be forgiven for making every effort to emphasise the features of the relationship that suit his case.

4. Ms G was called in relation to her evidence on behalf of the respondent, about one incident. Ms G gave a very different version to that of the applicant, of events between the applicant and a young Dutchman at a Kings Cross nightclub. Ms G would have it that the applicant and a young Dutchman behaved in an embarrassingly familiar and passionate way while dancing together over a long period. The applicant would have it that she danced with a young Dutchman, N, he grabbed her inappropriately, she admonished him and he apologised and desisted. As Ms G’s evidence tends to cast doubt on that of the respondent, this could only be a credit issue.

5. Neither Ms G nor the applicant resiled from their testimony. It is possible that the conflicting testimony arises more from the perspective of each of the witnesses than as a result of any attempt to mislead the court.

Relevant Law

1. Sections 90RD, 90RE, 90RF and 90RG of the Family Law Act provide:

   90RD Declarations about existence of de facto relationships

   (1)      If:

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

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

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

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

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

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

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

   (d)when the de facto relationship ended;

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

   Note:For child of a de facto relationship, see section 90RB.

90RE  Effect of declarations

(1)A section 90RD declaration has effect as a judgment of the court.

(2)For the purposes of this Act (other than Part VII), a section 90RD declaration has effect according to its terms.

90RF  Applying for declarations

Any party to the primary proceedings may apply for a section 90RD declaration.

90RG  Geographical requirement

A court may make a section 90RD declaration only if the court is satisfied that a person referred to in paragraph 90RD(1)(b), or both of those persons, were ordinarily resident in a participating jurisdiction when the primary proceedings commenced.

1. Here the applicant seeks orders under s 90SM which provides for the Court to make property settlement orders after the breakdown of a de facto relationship.

Jurisdiction

1. This Court has jurisdiction in relation to financial matters relating to de facto relationships because of Part VIIIAB of the Family Law Act. That Part was inserted into the Family Law Act by the Family Law Amendment (De facto Financial Matters and Other Measures) Act 2008 (Cth) (“the amending Act”). Part VIIIAB does not apply to a de facto relationship that “broke down” before the commencement date of the relevant schedule of the amending Act, (Item 86 of Part 2 of Schedule 1 to the amending Act); that commencement date was 1 March 2009.

2. Section 44 of the Family Law Act relevantly provides:

FAMILY LAW ACT 1975 - SECT 44

Institution of proceedings

(1)Except as otherwise prescribed by the regulations or by the applicable Rules of Court, proceedings under this Act shall be instituted by application.

….

(5)Subject to subsection (6), a party to a de facto relationship may apply for:

(a)an order under section 90SE, 90SG or 90SM; or

(b)a declaration under section 90SL;

only if the application is made within the period of 2 years after the end of the de facto relationship (the standard application period ).

(6)The court may grant the party leave to apply after the end of the standard application period if the court is satisfied that:

(a)hardship would be caused to the party or a child if leave were not granted; or

(b)in the case of an application for an order for the maintenance of the party--the party‘s circumstances were, at the end of the standard application period, such that he or she would have been unable to support himself or herself without an income tested pension, allowance or benefit.

What is a de facto relationship?

1. As to what constitutes a de facto relationship for present purposes, s 4AA of the Family Law Act provides:

   (1)A person is in a de facto relationship with another person if:

   (a)  the persons are not legally married to each other; and

   (b)  the persons are not related by family (see subsection (6)); and

   (c)having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

   Paragraph (c) has effect subject to subsection (5).

   Working out if persons have a relationship as a couple

   (2)  Those circumstances may include any or all of the following:

   (a)  the duration of the relationship;

   (b)  the nature and extent of their common residence;

   (c)  whether a sexual relationship exists;

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

   (e)  the ownership, use and acquisition of their property;

   (f)  the degree of mutual commitment to a shared life;

   (g)  whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;

   (h)  the care and support of children;

   (i)the reputation and public aspects of the relationship.

   (3)  No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.

   (4)  A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.

   (5)  For the purposes of this Act:

   (a)a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and

   (b)a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.

2. As is referred to by Coleman J in Barry and Dalrymple [2010] FamCA 1271 at [227], in Roy v Sturgeon (1986) 11 Fam LR 271, an early case decided pursuant to the provisions of the De Facto Relationships Act 1984 (NSW), Powell J of the Equity Division of the Supreme Court of New South Wales suggested that to dissect the phrase appearing in the New South Wales legislation:

   …living together as a husband and wife on a bona fide domestic basis” into discrete “elements” and then testing the facts of a particular case by reference to set of a priori rules in order to establish whether a particular “element” is, or is not, present, is to ignore the fact that just as human personalities and needs vary markedly, so, too, will the various aspects of their relationship which lead one to hold that a man and woman are living together as husband and wife on a bona fide domestic basis vary from case to case.

1. I respectfully agree with the observation of Coleman J in Barry and Dalrymple, that: “Without resorting to dictionary definitions, ‘genuine’ and ‘bone fide’ mean largely the same thing.”

2. It falls to the applicant to establish on the balance of probabilities that she and the respondent lived in a de facto relationship. I turn to the provisions of subsection 4AA (2).

(a)      Duration of the Relationship

1. It is the evidence of the applicant that she was in a de facto relationship with the respondent that spanned the period from 15 September 2006 to 21 May 2011. As I understand the respondent’s case, he would argue that there was a close and loving relationship from late 2006 or mid 2007 until February 2009 and after a period of separation there was thereafter a series of failed attempts to restore the earlier relationship extending to May 2011 but that after February 2009, the parties were friends and sexual partners only.

2. It is the evidence of the applicant that by February 2009 she asked the respondent to move out of the Suburb J townhouse. She deposed that he did not talk to her for several days and that he chose to sleep in the spare room downstairs. She says that that did not last more than a few days but during those periods the respondent and she would socialise separately. After they made up the applicant says that she would ask the respondent “did your friends ask where I was?” and he would ask her the same question. The respondent told her that he would say to his friends we are having trouble again. The next time she and the respondent were with his friends again some of them would comment how nice it was to see them together.

3. The arguments, the applicant deposes, would end by one of them appeasing the other and that they would once again sleep together and have make up sex.

4. It is her evidence that after the February incident she and the respondent came back together and reconciled once again and that at the end of February or early March 2009 the parties resumed attending on a counsellor.

5. She gives evidence that in late April 2009 her relationship with the respondent was becoming volatile. She deposes to the parties sitting down one afternoon and undertaking an exercise given to them by one of their counsellors. She gives evidence that the respondent wrote down things that he appreciated about her and she attached to her affidavit at Annexure H a document, she says in the hand of the respondent, dated 8 April 2009 which is headed “What I appreciate about [O]”. It is the applicant’s evidence that that was a pet name for her used by the respondent. The document goes on:

   She is positive, caring, loving, adventurous spiritual charming, warm, friendly, intelligent disciplined, sporting honest competitive a good mother to her children responsible clean sociable smart great smile.

   Interested in (three words that cannot read) people food wine XXX health learning new things business what life has to offer. She cares about animals friends family her physical appearance being a lover.

   [The applicant] is 1. loving 2. caring 3. beautiful 4. good companion 5. helpful.

6. It is the evidence of the applicant that in May 2009 there was a lot of tension between the parties. In her opinion it was in part caused by their financial situation. She said that the parties commenced to argue a lot and the respondent moved downstairs where he stayed for a couple of weeks. She says that on 21 May 2009 she asked the respondent to leave the Suburb J property. Later that day she wrote him an email confirming her request that he move out.

7. The parties did not communicate or see each other according to the applicant from about mid October 2009 for a period of three or four weeks. It is her evidence that in the first week of November 2009 the respondent got back in touch with her initially via email to discuss Mana Pty Ltd. The applicant deposed that the respondent phoned her to discuss the issues in relation to Mana Pty Ltd and said that he would like to see her again and invited her to dinner the next night. A day later the applicant stayed at the Suburb M property and the parties had sexual intercourse.

8. It is the evidence of the applicant that from mid November 2009 the parties spent several nights each week sleeping in the same residence and that each of them wore the rings that they had bought for each other when they were discussing marriage.

9. It is the applicant’s evidence that in late September 2010 the parties argued. At that point the parties were living together but the applicant commenced sleeping in the spare room for about a week.

10. The applicant deposed at [66] of her affidavit that the respondent came to her and said:

    I want to sign off on our time in [Suburb J]. This isn’t working again and I want you to sign this agreement. This is not a stable relationship and I want to sign off on that part regardless of whether we continue or not, which I don’t think we will and I am going to procure an agreement which gives you the ability to purchase the [Suburb K] apartment off me for a small amount if you takeover the mortgage. This is a great deal for you. I am really keen that you don’t come back and claim on my assets and I want to protect other assets in particular the Australian Business for Sale.

11. In October 2010 the respondent arranged for a lawyer to contact her prior to her signing a separation financial agreement that he had caused to be drafted. The respondent told her that the preparation of the agreement had cost him $1,000.

12. A solicitor contacted the applicant on 10 or 11 October 2010. That was Bernard O’Brien, Solicitor, and he emailed the applicant on 11 October 2010.

13. It is the applicant’s evidence that the parties were arguing during the first ten days of October 2010 and that she was sleeping in the spare room on most nights but on some nights sleeping with the respondent and having sexual intercourse with him.

14. The applicant spent the week contacting the respondent’s friends to organise a 60^th birthday party for the respondent in October 2010. It is the evidence of the applicant that during the speech of the respondent on that occasion he said “I love you” to her.

15. It is the applicant’s evidence that the respondent asked her to sign the agreement in the Suburb M apartment and that he was insistent she did. Later that day she printed another copy of the agreement and took it to her friend Ms P, a friend of hers who witnessed her second signature on the document and she gave a copy of that document to the respondent that night.

16. It is the applicant’s evidence that at that time she believed that she and the respondent had resolved their property dispute.

17. The applicant continued to stay in the spare room at the Suburb M property after 12 October 2010. It is the evidence of the applicant that sometime between 16 and 23 October 2010 she and the respondent reconciled and she started sleeping again in the main bedroom at the Suburb M property with the respondent, having meals with him again and they resumed a normal sexual relationship.

18. From December 2010 to January 2011 the respondent travelled to New Zealand with the applicant. They stayed with the applicant’s friends in Auckland and slept together in a spare room there. They spent Christmas Day at the applicant’s sister’s home in New Zealand and they went away on the applicant’s sister’s boat for a couple of nights. During that time it is the evidence of the applicant that the parties continued to have sexual relations.

19. It is the evidence of the applicant that in January 2011 when the parties returned to the shared Suburb M apartment they again commenced to have difficulties in their relationship. The applicant alleged that on 21 March 2011 when the parties were at home at the Suburb M apartment the respondent assaulted her. The applicant slept in a spare room at the Suburb M apartment after she returned from hospital. The respondent on occasions dropped her off for a couple of medical appointments.

20. The parties went to some social occasions at the homes of friends of the respondent and they had one of their neighbours to dinner. The applicant says that on 21 May 2011 the respondent said to her “This relationship does not work anymore”. The applicant left the Suburb M apartment that day. The parties lived separately thereafter.

21. This evidence supports a finding in line with the applicant’s case.

(b)      The nature and extent of their common residence

1. The definition of de facto relationship in paragraph 5 of s 4AA of the Family Law Act allows for a person to be in two de facto relationships at once. It follows that the parties to a de facto relationship might not have lived together all the time in question or even for a majority of that time.

2. It is the evidence of the applicant that after Easter 2006 the parties spent most weekends together, mainly at the applicant’s Suburb J apartment and sometimes at the respondent’s rented apartment at Suburb M. When the respondent returned from a trip to Europe in late August or early September 2006 the parties stayed together at the Suburb J apartment between 4 and 7 nights a week. After a few weeks, the respondent sub-let his apartment and commenced sharing the rent at Suburb J.

3. It is the evidence of the applicant that after Easter 2006 the respondent and she spent most weekends together. She said that the respondent would mainly stay at her townhouse at Suburb J but sometimes she would stay at his rented apartment at Suburb M.

4. It is the evidence of the applicant that upon his return from Europe in late August / early September 2006 the respondent started staying with her at the Suburb J apartment between four and seven days a week. It is the evidence of the applicant that the parties continued to live together at the Suburb J apartment throughout 2007. She says that sometime in 2007 the respondent sub-let his apartment in Suburb M. The respondent contends that he was mainly living at Suburb M until he moved into the Suburb J apartment in 2007. He conceded that he stayed at the Suburb J apartment but not as often as is asserted by the applicant. The common ground evidence has it that the respondent regularly spent a number of nights each week at the Suburb J apartment in 2006.

5. It is the evidence of the applicant that the parties’ relationship became volatile in January 2009 and by February 2009 she asked the respondent to move out of the Suburb J apartment. It is her evidence that after a few days when the respondent slept in a spare bedroom downstairs, the parties made up. She says that towards the end of February and early March 2009 the relationship had become more stable again after they recommenced counselling. Their sexual relationship continued.

6. On 21 May 2009, however, the applicant again asked the respondent to leave the Suburb J apartment and on that occasion the respondent moved out into his own apartment in Suburb M. While the respondent travelled in mid August 2009 the applicant stayed at his apartment for most of the time he was away.

7. It is the evidence of the applicant that when the respondent returned from Europe the relationship of the parties, including their sexual relationship continued, despite the fact that they were living in separate places, him at Suburb M and the applicant at Suburb J. However, it is the evidence of the applicant that she then commenced staying at the respondent’s Suburb M property on two to three nights per week.

8. The parties did not communicate with each other or see each other from about mid October 2009 for a period of three or four weeks. It is the evidence of the applicant that the parties’ relationship resumed in mid November 2009 with the applicant spending several nights a week with the respondent.

9. At Christmas 2009 the parties travelled together and stayed together including camping together.

10. The applicant deposes that in January and February 2010 when they returned to Sydney after that holiday, their relationship continued and they slept together at one of their apartments at least three or four days every week, usually with the applicant staying at the Suburb M property.

11. It is the evidence of the applicant that in February 2010 the respondent asked her to move back into the Suburb M property.

12. In July 2010 the applicant moved into the respondent’s apartment at Suburb M. When she moved in the respondent was in Europe and the applicant travelled to Europe to be with him in the following week. The parties lived together in the Suburb M property thereafter.

13. In December 2010 to January 2011 the parties travelled together to New Zealand. They stayed together at various places during their holiday. Albeit that sometimes the applicant slept in a spare room, the parties continued to live together in the Suburb M property.

14. The applicant left the Suburb M property after the respondent told her that, in his view, the relationship was over and that was said on 21 May 2011.

15. This evidence supports the applicant’s case.

(c) Whether a sexual relationship exists

1. It is common ground that the parties had a sexual relationship from soon after their first meeting at Easter 2006. It is an agreed fact that the parties continued to have sexual relations after the date when the respondent says the parties’ de facto relationship concluded in February 2009 and after he physically moved out of the Suburb J property in May 2009.

2. There is a dispute as to the extent of their sexual relationship. The respondent agrees that the parties had sexual relations after he came back from Europe in about September 2009. There is no challenge to the evidence of the applicant that the parties had sexual intercourse during November 2009. There is no dispute from the respondent about the applicant’s evidence that after Christmas 2009 the parties had sexual intercourse while visiting friends. There is no challenge to her evidence that at about that time the parties used to have sex two to three times a week at least.

3. There is no challenge from the respondent to the applicant’s evidence that in April 2010 when the parties were on a business trip to Melbourne they had sexual intercourse in their hotel room. There is no challenge by the respondent to the applicant’s evidence in relation to the parties having sexual relations in October 2010, notwithstanding the fact that the parties were regularly sleeping apart albeit in the same premises. There is no challenge from the respondent to the applicant’s evidence that between 16 and 23 October 2010 the parties reconciled and that they started sleeping in the main bedroom together and that they resumed their normal sexual relationship.

4. It is the applicant’s evidence that during the Easter break in April 2011 the respondent initiated sexual intercourse with the applicant. The respondent denies that he initiated sex twice.

5. Taken together there is no doubt that the parties had a sexual relationship during the agreed period of their cohabitation and subsequent to that period. Indeed, as I understand the respondent’s case, apart from some periods of separation, the parties’ sexual relationship largely continued throughout the period from mid 2006 until May 2011.

6. This evidence strongly supports the applicant’s case.

(d) The degree of financial dependence or interdependence, and any arrangements for financial support, between the parties

1. It is an agreed fact that over the Easter break in 2006 the respondent took the applicant away to a spa retreat in the Blue Mountains that he booked via his BarterCard. The respondent often used BarterCard points for the cost of the parties staying in hotels and at restaurants.

2. It is the evidence of the applicant that when the respondent returned from Europe in late August to early September 2006, among other things, she asked him to equally contribute to her rent. He agreed and started paying half the rent and utilities. It is her evidence that the parties shared the cost of all food purchases and they would sometimes shop together. The respondent disagreed with some part of the paragraph including the applicant’s evidence on that issue, but he conceded that he agreed to pay one half of the rent at the Suburb J apartment.

3. In late 2007 the parties discussed purchasing a property at Suburb K together. The parties equally contributed to a $2,000 holding deposit for the property.

4. In late 2007 the parties purchased rings for each other to wear including a platinum wedding band from a jeweller in Suburb Q. The respondent paid the jeweller on his American Express card.

5. In January 2008 the parties established Mana Pty Limited as the corporate trustee for the L Trust of which the parties were the beneficiaries. The parties were the directors and shareholders of the corporate trustee. The purpose of the trust was the joint purchase of a property at Suburb K. The purchase did not proceed.

6. The parties shared flights and a hotel room on a business trip together to Melbourne in April 2010.

7. The applicant referred the respondent to a lawyer friend of hers, for assistance in relation to claims against him by a liquidator.

8. In October 2010 the respondent caused the preparation of a document called a “Separation Financial Agreement”.

9. It is the respondent’s evidence that he intended the agreement to in effect protect his assets from a claim by the applicant. It is his evidence that he never ultimately signed the agreement as he was advised that it would not be an effective vehicle for protecting his assets. Nevertheless, there is no dispute that he had the document prepared, sought the agreement of the applicant to the terms of the document and caused her to have independent advice in relation to it. It follows that the wording of the document was wording prepared by the respondent or on his instructions.

10. It is the evidence of the applicant that in April 2011 the parties continued to jointly contribute to their living expenses. The applicant sent the respondent a text message (annexure HH of applicant’s affidavit affirmed 17.12.2012) on 30 April 2011 saying:

    $500 transferred to your personal account. Paid $38 to dry cleaners for apartment laundry and $9 for your trousers + $60 to cleaners. Please treat as my contribution to petrol last week etc.

11. There was a challenge to that evidence in the course of cross-examination but, it only resulted in a concession that of the $500, $195 was referrable to a hat that had been paid for by the respondent for the applicant.

12. The parties combined their funds for various purposes and shared expenses. There is no evidence that they had a joint account but there was a level of financial intermingling.

13. This evidence supports the applicant’s case.

(e)      The ownership, use and acquisition of their property

1. The parties did not jointly own any significant assets however, as is recorded above, they made arrangements at the end of 2007 to jointly buy a property at Suburb K and for that purpose they registered a company to be the corporate trustee. The company’s name drew on the first two letters of their first names. They created the trust to be managed by that corporate trustee for their benefit, for the specific purpose of jointly purchasing the Suburb K property. The parties jointly contributed to the holding deposit for the property.

2. Otherwise the parties shared their assets but did not jointly own them.

3. This evidence equally supports the cases of the applicant and respondent.

(f)       The degree of mutual commitment to a shared life

1. There is a dispute on the evidence as to the number of counsellors seen by the parties but it is conceded that they saw a total of at least five counsellors. They saw four counsellors; it is agreed, from 2007 until 29 May 2009. They saw no counsellors on the respondent’s case between 29 May 2009 and 26 July 2010, and then they saw a counsellor called Ms R in the period 26 July 2010 to 29 May 2011. The applicant contends that the counselling was more extensive than that but those concessions are made. For some periods the parties had separate sessions with a counsellor and then joint sessions.

1. It is the contention of the applicant that the respondent proposed marriage to her in late 2007. However, there is no dispute that they discussed getting married and that 8 August 2008 was discussed as a date for a wedding to be held in Europe.

2. The respondent gave evidence that the first counsellor the parties visited advised him in a private session that the issues that he and the applicant experienced would disappear if there was a discussion around marriage. The counsellor’s name was Ms S and she suggested to the respondent that when he wrote mail or emails to the applicant he use a lot of “I love you” words to appease her. That, the respondent said, entirely accounts for the terms of endearment which characterise much of his email correspondence with the applicant.

3. The respondent said that he never proposed to the applicant. It is his evidence that he came home from seeing a counsellor and discussed with the applicant, the counsellor’s suggestion of marriage. He asked the applicant her opinion. He deposed:

   We discussed this (marriage) in a practical kind of way and the date of 8/8/2008 was discussed because this was a good luck number for Chinese people. One Saturday afternoon in a shopping centre in [Suburb Q] in a spontaneous moment we looked at rings and bought rings for one another. We never referred to each other as fiancées, nor did our friends.

4. The parties bought rings for each other in 2008. It is the applicant’s evidence that the respondent bought her a platinum engagement ring with about 16 or 18 baguette diamonds set in a flat rubbed setting and a plain platinum wedding band to match and that she bought him a platinum wedding band.

5. There is no dispute from the respondent about the event. It is his evidence that on one Saturday morning in a shopping centre in Suburb Q and in a spontaneous moment, the parties looked at rings and bought them for each other. Exhibit 1 is a receipt for rings purchased on the respondent’s American Express Card on 16 December 2007 including a ring described as a “wedding ring”.

6. It is the evidence of the applicant that she had a problem with her business and she could not go away at the time planned for the wedding. It is her evidence that the respondent and she discussed those problems and agreed to delay the wedding but still planned to marry in Europe if possible, and if not in Sydney or New Zealand. She gives no evidence of the detail of those discussions.

7. It is the respondent’s evidence that he disagrees that the wedding plans were delayed. It is his case that the idea of marriage simply fizzled out.

8. A document was put into evidence from April 2009 or dated April 2009, said on behalf of the applicant to be a document prepared by the respondent setting out things that he appreciated about her. The document is Annexure H to the applicant’s affidavit affirmed 17 December 2012 and it reads as follows:

   What I appreciate about [O]     April 2009

   She is positive, caring, loving, [unrecognisable word], spiritual, charming, spiritual, warm, friendly, intelligent disciplined, sporting, honest, competitive a good mother to her children, responsible, clean, sociable, smart great smile interested in: art, culture, travelling, people, food, wine, [unrecognisable word], health, learning new things, business and what life has to offer.

   Cares about: animals, friends, family, her physical appearance, being a lover.

   [The applicant] is:

   1. loving

   2. caring

   3. beautiful

   4. good companion

   5. helpful

9. It is common ground that ‘O’ was one of the respondent’s pet names for the applicant. The evidence of the respondent about this document is a bit hard to define. He agrees that the Annexure is in his handwriting. He disagrees with the content and says that he did not sit down with the applicant and write out that document. In oral evidence he referred to a counsellor suggesting that as an exercise he prepare a document setting out the things that he admired about the applicant. The important thing about this document is that on its face it suggests that there was a significant depth of feeling on the respondent’s part for the applicant in April 2009, a time when he says the parties were separated.

10. It is the evidence of the applicant that on the night of 29 May 2009 the respondent said to her: “I never wanted to leave, I love you, you are my life partner, but now I have signed a lease on the apartment at [Suburb M] and don’t know what to do”. The respondent disputes saying those words or words to that effect to the applicant. I accept the applicant on that issue.

11. It is the respondent’s evidence that when he moved out of the Suburb J apartment in May 2009 he became a free man again. He says that he started telling friends that he was single and he was invited and started going out by himself. It is the respondent’s evidence that friends of his suggested that he should date another woman and introduced him to a friend of theirs called Ms I.

12. It is the applicant’s evidence that in February 2010 while she was staying at the respondent’s apartment he said to her: “my darling it is beautiful here why don’t you come and live with me. You already have some of your clothes and possessions here and you would not have to shift every weekend. I love you. I’m committed to making this work.”

13. It is the applicant’s evidence that she responded: “I will think about it and let you know, my lease is not expired and I have a flatmate to consider but it is a lovely thought and I am committed to you too”.

14. The respondent rejects that evidence entirely. He denies having said words or words to that effect and he disagrees with the words the applicant says made up her response.

15. The applicant deposes that in mid 2010 the respondent would become very upset with her if she did not go to work with him on a Saturday. The respondent disagrees with that evidence. He says that he did not want the applicant to go to work with him. Again I am inclined to accept the applicant on this issue.

16. It is agreed that the final aspect of the parties’ relationship ended on 21 May 2011. It is the applicant’s evidence that that was the conclusion of the relationship that had persisted, with some interruptions since mid 2009. It is the respondent’s case that that was the end of a trial resumption of their relationship. It is the applicant’s evidence that about 27 or 28 May 2011 the respondent asked her to move back in with him. The respondent rejects that evidence.

17. There were a number of emails that passed between the parties towards the end of May 2011 (see Annexure II of the applicant’s affidavit affirmed 17 December 2012) and they include one on 25 May 2011 from the respondent to the applicant:

    Just wanted to say … feeling sad and confused … thinking about you and us everyday, so sad that we do not know how to do this communication dance.

    I always wore your ring with pride and when I think back of the times when we got out of rhythm and when you came back up to me and grabbed my hands to calm the situation and lead us back … that memory brings tears to my eyes.

    I wanted to write to you from my gray heart and less from my head and a sense of loss comes over me when I reminisce about the times we shared when life was sunny and we were happy as.

    a little team … just wanted to say this to you … [the respondent]

18. There is some evidence that is controversial but in my view taken together the parties demonstrated by word and deed a significant degree of mutual commitment to a shared life over the period from September 2006 until May 2011.

19. There is further confirmation about that in his email to Ms T dated 10 August 2011[1]. The respondent complains about the references to Ms T and says that he does not even know if she is a real person. Again, in my view he is missing the point. The respondent does not dispute that he wrote an email to someone called Ms T on 10 August 2011 or that the excerpt of the contents of the email annexed to the affidavit was:

    Hi [Ms T’s first name],

    Thank you for letting me know, you are hearing the pain from 2 people that used to be 1, which is sad.

    Two Dutch friends of mine just got back from Bali as they got married there, they had a great time.

    [The applicant] and I were to get married, in [Europe] on the 8 of the 8 in 2008, we never made it, though I would have liked to, we still have each other’s rings.

    Around this time last year, [the applicant] and I were in [Europe] at my sisters place she liked [the applicant] and [the applicant] liked her, we used to walk the dog and walk to [a neighbouring country] which is just 10 minutes down the road, life was rosier.

    Tonight I had to go to an osteopath as al the stress tightened up my lower back and I ended up with a walking stick, back is a little better now.

    Yes, Eckhardt Tolle explains human ego and the way it thinks and creates emotions in such a way that it creates relaxation for me, …. (errors as in original)

    [1] Annexure C to the applicant’s affidavit affirmed 17 December 2012.

20. The respondent would have it that he felt that he was tricked in some way and that perhaps Ms T does not exist, but that does not explain why he would make those representations to any person in August 2011, if they were not true. A finding can be comfortably made that in 2008 the parties discussed marrying each other later that year.

21. In addition to the confirmation about the wedding plans, the reference to “two people who used to be 1”, confirms much of the applicant’s case and reveals the depth of commitment the respondent felt to the applicant.

22. The parties had a turbulent relationship but taken together, the evidence supports the applicant’s contention.

(g)      The care and support of children

1. There are no children of the parties’ relationship. This factor does not support the applicant’s case.

(h)      The performance of household duties

1. It is common ground that the parties shared household chores.

2. It is the evidence of the applicant that from the time when the respondent returned from Europe in September 2006, the respondent and the applicant would sometimes shop together. It is her evidence that she did most of the cleaning but that the respondent would help her. It is her evidence that the respondent almost always made the bed each day and regularly washed and changed the sheets. The parties shared the cooking.

3. The respondent disagrees with the content of the paragraph that contains that evidence, but when he sets out in his affidavit the things that he disagreed about, he does not make any reference to the evidence about household chores. On balance I accept the evidence of the applicant.

4. It is the applicant’s evidence that in the period from the end of February 2009 to early March 2009 the parties continued to cook and eat together on most nights and did not go out. The respondent counters with his evidence that the parties had the odd meal together.

5. It is the applicant’s evidence that when the respondent was away in Europe in mid-August 2009 she stayed in his apartment for most of the time. It is her evidence that he asked her to organise cleaners for his Suburb K apartment and that he asked her to organise the delivery and installation of new blinds for the Suburb M apartment. The respondent cavils with some of that but seems to concede the thrust of that evidence.

6. It is the applicant’s evidence that in October 2010, while the parties were living at the respondent’s Suburb M property, she would do most of the cleaning but the respondent would usually do the dishes. She deposed that they would both buy food. She deposes that they shared the cooking. The respondent said he disagrees with the content of the paragraph containing that evidence although his focus was on other topics rather than household duties. I am not sure that there is a challenge to the evidence of the applicant about those duties.

7. It is the applicant’s evidence that in April 2011 the parties continued to live together and share domestic duties as they had previously. The respondent agreed with that evidence.

8. The evidence about this factor is consistent with the applicant’s claim.

1. The reputation and public aspects of the relationship

1. On a trip to New Zealand from December 2007 to January 2008 the parties stayed with friends of the applicant and went away with them on their launch for several days. Later in that same trip they joined the applicant’s ex-husband, Mr A, who was staying with his daughters those of the applicant, in a rented beach house.

2. In April 2009 the parties shared the applicant’s 50^th birthday celebrations with friends. It is the evidence of the applicant that later in 2009 the parties continued to socialise as a couple with mutual friends. Although the respondent challenges aspects of the applicant’s evidence in that paragraph he does not refer to that aspect.

3. After Christmas 2009 the parties travelled together by car to Northeastern NSW and stayed with friends of the respondent, Mr and Ms C.

4. In October 2010 the applicant arranged the respondent’s 60^th birthday party. In the course of the speech at that party, the respondent said “I love you” to the applicant. This was at a time when the respondent had requested the applicant to sign a ‘Separation Financial Agreement’. Nevertheless, he publicly declared his affection for the applicant.

5. It is the evidence of the applicant that the respondent wore the wedding ring that she had bought for him on most days right up until 21 May 2011. She says that she would usually wear her engagement ring but sometimes they would both take their rings off when they were arguing. The respondent categorically disputes this evidence saying that he did not wear the wedding ring apart from the parties’ trip to New Zealand in 2010. It seems highly unlikely that the only time the respondent wore a ring bought in 2008 was in 2010. I prefer the evidence of the applicant in relation to this issue.

6. In December 2010 the respondent replied to an email from a friend, Ms U, with the following words: “Still with [the applicant’s first name], my kiwi chick, pic attached, going on five years in March”.

7. It follows from the evidence of Ms G that in February 2011 friends of the respondent considered that the respondent and the applicant were in a relationship at that time. Ms G would have it that the applicant and a young Dutchman behaved in an embarrassingly familiar and passionate way while dancing together at a Kings Cross nightclub over a long period. The respondent asserts that after they separated in early 2009 he and the applicant never returned to the type of relationship they enjoyed prior to that time. Thereafter, on his version of events, when they were not separated their relationship was a sexual relationship but not much else. If that was so, why would Ms G report that two years after the separation, she and others were embarrassed at the applicant’s behaviour with the young Dutchmen “in front of [the respondent’s] friends”? Why did Ms G observe that the applicant “obviously did not respect” the respondent. Why did she speculate “or did they have an open relationship.” On the respondent’s version of events, he and the applicant were by that time little more than occasional sexual partners who had formerly lived together.

8. The applicant gives a very different version of the event at the nightclub but it is very revealing that the respondent relies on evidence to the effect that - Ms G: “[AA], [BB], and [CC] and the rest of the group looked on with a slight embarrassment doing this in front of [the respondent’s] friends”. That suggests that there was a close and exclusive relationship between the parties as understood by the respondent’s friends.

9. Ms I was introduced to the respondent at the end of July 2009 by friends of his, who told her that he was single. During the dinner the respondent told her that he had split up from his girlfriend, the applicant. After dinner they went back to a mutual friend’s house for tea and coffee. Ms I gives no evidence that the relationship between her and the respondent continued past that night.

10. The respondent relies on the evidence of Ms H who met the respondent in March 2009. She gives evidence that at that time, the respondent told her that he had recently split from his partner, the applicant. She records that he was visibly upset and expressed his regrets about the failure of his relationship. She saw the respondent around the end of July 2009 and on Australia Day in 2011 and reports that on those occasions, and on other occasions she has seen the respondent, he was not in the presence of or was not attended by the applicant.

11. Mr F gives evidence in the respondent’s case. He says that he first met the applicant in February 2008 with the respondent. He says that the respondent called him at the end of February 2009 and said: “The dream is over, I moved to the downstairs bathroom, [the applicant] asked me to leave, we are now living apart under one roof”. Just stopping there, “living apart under one roof” this is a very unusual phrase to hear in a conversation between friends long before there were proceedings about the character of relationship in question. It is Mr F’s evidence that the respondent called him again in June 2009 and told him that he had moved back to his Suburb M property alone.

12. Mr F and his son stayed at the respondent’s apartment at Suburb M for a few days before and after a cruise in January 2010 and did not see any sign of the applicant residing there. Mr F mentions that he called the respondent at the end of September 2010 in relation to the respondent’s birthday and that a mutual friend, Mr V, had offered to have the party at his residence. He does not mention the unchallenged evidence of the applicant that she assisted with the arrangements for the party or that the respondent spoke of her in a loving way, in his speech at that party.

13. The respondent relies on the evidence of Ms E who says she was in a relationship with him from 1991 to 1997. As with the other witnesses in the respondent’s case she too gives evidence of hearing from the respondent in mid 2009 and being told that the respondent and the applicant had separated. She seeks to give evidence that there was no sign of the applicant in the respondent’s apartment. There is no suggestion in the affidavit of Ms E that she and the respondent resumed any kind of a relationship in 2009 or thereafter, other than as friends.

14. It is consistent with the evidence of all witnesses that the parties represented themselves as a couple. There was no reference to them being engaged or fiancées or husband and wife but there is little doubt that they were seen by friends and family as a couple.

15. This evidence supports the applicant’s case.

Conclusion

1. Every relationship is different and s 4AA of the Family Law Act expressly provides that there is no essential circumstance for a finding that a de facto relationship existed. There are some factors that are more indicative of a de facto relationship than others but taken together, the evidence supports a finding that the applicant and the respondent lived together in a de facto relationship for the purposes of s 90RD of the Family Law Act from 15 September 2006 until 21 May 2011.

2. The application will accordingly be allowed.

3. Of course it is one thing to find that a relationship exists and quite another to find that the property and damages claims are made out. The matter will be relisted in relation to the substantive claims.

I certify that the preceding one hundred and sixty-one (161) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 21 June 2013.

Associate: 

Date: 21 June 2013