Weldon and Levitt - [2017] FCCA 3072

FEDERAL CIRCUIT COURT OF AUSTRALIA

WELDON & LEVITT

[2017] FCCA 3072

Catchwords:
FAMILY LAW – Property – whether the parties were in a de facto relationship – the parties had an intermittent sexual relationship for 13 years – the parties had two children together – the parties lived together for three periods totalling less than one year – only one of those periods was after 1 March 2009 and it lasted only six weeks – the parties occasionally stayed at each other’s houses – there were a number of intervention orders over the years against the applicant for the protection of the respondent and the children – the applicant was removed from the respondent’s house by the police on two occasions – declaration that the parties were never in a de facto relationship.

Legislation:
Child Support (Assessment) Act 1989, s.25
Family Law Act 1975, ss.4AA(1), 4AA(2), 44(5), 44(6), 79, 90RD, 90RG, 90SF, 90SM
Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008, item 86 of Schedule 1

Cases cited:
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] ALR 334; (1938) 12 ALJR 100; [1938] HCA 34
Cadman v Hallett (2014) 52 Fam LR 149; (2014) Fam CAFC 142
In the Marriage of Elias (1977) 29 FLR 393; (1977) 3 Fam LR 11,496; (1977) FLC 90-267
Jonah v White (2011) 258 FLR 236; (2011) 45 Fam LR 460; [2011] FamCA 221
Jonah v White (2012) 48 Fan KR 562; (2012) FLC 93-522; [2012] Fam CAFC 200
Moby v Schulter [2010] Fam CA 748; (2010) FLC 93-447
Sinclair & Whittaker [2013] FamCAFC 129; (2013) FLC 93-550

Applicant:

MR WELDON

Respondent:

MS LEVITT

File Number:

MLC 240 of 2016

Judgment of:

Judge Riley

Hearing dates:

10, 11 and 12 July 2017

Date of last submission:

2 October 2017

Delivered at:

Melbourne

Delivered on:

11 December 2017

REPRESENTATION

Counsel for the applicant:

Dr O’Brien

Solicitors for the applicant:

D & M Lawyers

Counsel for the respondent:

Ms Marshall

Solicitors for the respondent:

Altona Legal

DECLARATION

Pursuant to s.90RD of the Family Law Act 1975, the applicant and the respondent were never in a de facto relationship.

ORDERS

The application filed on 29 November 2016 be dismissed.
Within seven days the applicant withdraw the caveat he lodged over Property A.

NOTATIONS

Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.

IT IS NOTED that publication of this judgment under the pseudonym Weldon & Levitt is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 240 of 2016

MR WELDON

Applicant

And

MS LEVITT

Respondent

REASONS FOR JUDGMENT

Introduction

In this proceeding, the applicant sought a property settlement on the assumption that he had been in a de facto relationship with the respondent. He sought orders that a property registered in the respondent’s sole name, Property A, (“Property A”), be sold, and that he receive 40% of the proceeds.
In her response, the respondent sought a declaration under s.90RD of the Family Law Act 1975 (“the Act”) that a de facto relationship had never existed between her and the applicant. The respondent also sought an order that the applicant withdraw the caveat that he had lodged over Property A.
The applicant’s position was that he and the respondent had been in a de facto relationship between 2001 and November 2014. The respondent’s position was that she and the applicant had been in an intermittent intimate relationship, but that it was a relationship of boyfriend and girlfriend at the most, although they did have two children together. The respondent said that she and the applicant had lived in the same house for a total of less than one year in the 16 years they had known each other.
There is jurisdiction under the Act to deal with a de facto property settlement between two people if a de facto relationship existed between them and it broke down on or after 1 March 2009: Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008, item 86 of Schedule 1. Consequently, the issue in the present case is whether the parties were in a de facto relationship that broke down on or after 1 March 2009.
Under s.44(5) of the Act, applications for de facto property settlement are to be brought within two years of the end of the relationship, unless the court gives an extension of time under s.44(6) of the Act. The court may grant an extension of time if hardship would be caused to the applicant or a child if leave were not granted.
The application was lodged on 29 November 2016. The applicant maintained that the de facto relationship ended in November 2014. The respondent argued that the relationship between her and the applicant, which she said was a boyfriend girlfriend relationship, ended no later than September 2013.
On 29 May 2017, the court listed the matter for a half day hearing on 10 July 2017 for final hearing on the questions of:
a)whether there was a de facto relationship between the parties;
b)if so, when it ended; and
c)if necessary, whether an extension of time should be granted.
Ultimately, the matter was heard over three days. The parties were given leave to file written closing submissions. After a number of delays, the applicant filed written closing submissions on 26 July 2017, the respondent filed written closing submissions on 30 August 2017 and the applicant filed written closing submissions in reply on 2 October 2017.
The applicant relied on:
a)his application filed on 29 November 2016;
b)his financial statement filed on 29 November 2016;
c)his affidavits affirmed on 28 November 2016 and 13 June 2017;
d)the affidavit affirmed on 12 June 2017 by Ms B, who is the applicant’s sister; and
e)the affidavit affirmed on 13 June 2017 by Ms M, who is a friend of the applicant.
The applicant did not rely on the affidavits that were affirmed by Mr W on 12 June 2017 and filed on 13 June 2017 and sworn or affirmed by Mr D but not filed.
The respondent relied on:
a)her response filed on 26 May 2017;
b)her financial statement filed on 26 May 2017;
c)her further affidavit sworn on 6 July 2017 (but not her earlier affidavit sworn or affirmed on 23 May 2017); and
d)the affidavit sworn or affirmed on 6 July 2017 by Ms P, who is the paternal grandmother of the respondent’s first child, who was born before the respondent’s relationship with the applicant began.
During the course of the proceeding, the following exhibits were tendered:
a)Exhibit 1, being a handwritten letter from Ms B dated 3 June 2017, being a draft of her affidavit;
b)Exhibit 2, being a photograph of the applicant and three children going to a football match, posted on Facebook on 27 July 2014;
c)Exhibit 3, being a colour copy of exhibit L-1 annexed to the respondent’s affidavit sworn on 6 July 2017, being photographs of damage allegedly done to her property by the applicant in about 2005;
d)Exhibit 4, being a colour copy of exhibit W-13 annexed to the applicant’s affidavit affirmed on 13 June 2017, being Facebook messages between the applicant and the respondent in March and April 2014; and
e)Exhibit 5, being two photographs date stamped May 2013 of the respondent and children on a holiday in Queensland.
The applicant claimed the property pool consisted of:
a)Property A, which is unencumbered, which he estimated to be worth between $350,000 and $375,000, and which is registered in the respondent’s sole name;
b)his household contents, which he estimated to be worth $2,000, and the respondent’s household contents, which the applicant estimated to be worth $8,000;
c)his superannuation, which he said was worth about $4,000;
d)any superannuation the respondent had; and
e)his motor vehicle, which he estimated to be worth about $5,000, and the respondent’s motor vehicle, which the applicant estimated to be worth about $10,000.
The respondent said that:
a)Property A was worth $325,000;
b)her car was worth $15,000, but was subject to finance in the sum of $15,260;
c)she had no superannuation;
d)she had personal property worth about $1,000; and
e)she had a debt to Centrelink of an unknown amount.

Legislation

Section 90RD of the Act permits the court to make a declaration that a de facto relationship existed or did not exist between two persons. Under s.90RG of the Act, the court is only permitted to make a declaration that two people were in a de facto relationship if it is satisfied that one or both of the persons were ordinarily resident in a participating jurisdiction when the primary proceedings commenced. There was no dispute about this issue. On the material before the court, I am satisfied that the applicant and the respondent were both ordinarily resident in a participating jurisdiction, namely Victoria, when the primary proceedings commenced.
Whether two people are in a de facto relationship for family law purposes depends on whether they meet the definition of a de facto relationship in s.4AA of the Act. That section provides that:
(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).
(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.
(6)For the purposes of subsection (1), 2 persons are related by family if:
(a)one is the child (including an adopted child) of the other; or
(b)one is another descendant of the other (even if the relationship between them is traced through an adoptive parent); or

(c)they have a parent in common (who may be an adoptive parent of either or both of them).

For this purpose, disregard whether an adoption is declared void or has ceased to have effect.

It was common ground that the applicant and the respondent were not married and were not related by family. The issue was whether they had:
a relationship as a couple living together on a genuine domestic basis.
In answering that question, the court is required to consider all of the circumstances of the relationship. The circumstances of the relationship may include the matters set out in s.4AA(2) of the Act.
Under s.90SB of the Act, if two people were in a de facto relationship that broke down after 1 March 2009, the court may adjust their property interests if:
i)the de facto relationship lasted two years in total; or
ii)the parties have a child together; or
iii)the applicant made substantial contributions to the parties’ combined property and would suffer hardship if an adjustment was not made; or
iv)the relationship was registered.
In the present case, it was common ground that the parties had two children together. Consequently, it would not be necessary for the two year requirement or any of the other alternative requirements to be satisfied in this case.

Case law

The applicant relied on Moby & Schulter [2010] FamCA 748; (2010) FLC 93-447, where Mushin J said at [140]:
The second specific element is the concept of “living together.” In my view, if a couple do not live together at any time, they cannot be seen as being in a de facto relationship. However, the concept of “living together” does not import any concept of proportion of time. In particular, it does not require that a couple live together on a full-time basis. On the basis that one or both members of the couple may also be legally married or in another de facto relationship at the same time as they are in the subject relationship, it must follow that it is feasible that the subject relationship might involve the parties living together for no more than half of the time of that relationship. Further, there is nothing to suggest that it must be even as much as half of the time.
The respondent relied on a passage from the first instance decision in Jonah v White (2011) 258 FLR 236; (2011) 45 Fam LR 460; [2011] FamCA 221 at [60], where Murphy J said:
In my opinion, the key to that definition is the manifestation of a relationship where “the parties have so merged their lives that they were, for all practical purposes, ‘living together’ as a couple on a genuine domestic basis”. It is the manifestation of “coupledom”, which involves the merger of two lives as just described, that is the core of a de facto relationship as defined and to which each of the statutory factors (and others that might apply to a particular relationship) are directed.
I also note that Murphy J said in that case at [65]:
It seems to me to be clearly established by authority that the fact that, for example, the parties live in the same residence, for only a small part of each week does not exclude the possibility that they are “living together as a couple on a genuine domestic basis” or that the maintenance of separate residences is necessarily inconsistent with parties having a de facto relationship. So much is, in my view, clear from the statutory recognition that parties to a relationship can be married but also be in a de facto relationship.
On appeal from Murphy J’s decision, in Jonah & White (2012) 48 Fam LR 562; (2012) FLC 93-522; [2012] FamCAFC 200, the Full Court said at [44] that it was not persuaded that there was any error in Murphy J’s legal analysis. However, in Cadman & Hallett (2014) 52 Fam LR 149; (2014) FamCAFC 142, the Full Court expressly declined to adopt Murphy J’s view that it was sufficient that the parties had:
so merged their lives that they were, for all practical purposes, ‘living together’ as a couple on a genuine domestic basis.
Rather, in Cadman, the Full Court said:
41.In dismissing the appeal from that decision, the Full Court in Jonah v White (2012) 48 Faml LR 562; (2012) FLC 93-522; [2012] Fam CAFC 200 (White) did not adopt that expression [the parties had so merged their lives that they were, for all practical purposes, ‘living together’ as a couple on a genuine domestic basis] which had been used by the trial judge but rather at [32] and [33] said:
32.It is immediately apparent that the touchstone for the determination of whether a de facto relationship exists is the finding that the parties to it are a “couple living together on a genuine domestic basis”.
33.The Court may consider the matters to which the following subsections refer in determining that seminal question posed by s 4AA(1)(c). We accept the submission that none of the matters referred to in the section has precedence over any other, nor must all necessarily be found before a finding of a de facto relationship is made.
42.In Sinclair & Whittaker [2013] FamCAFC 129; (2013) FLC 93-551, after referring to both the first instance decision and the decision of the Full Court in Jonah v White (above) at [94] – [96] the Full Court said:
94.Comments made in the course of discussing facts are not to be elevated to the status of the provisions of the statute or substituted for the statutory test. This is because, taken on their own, they either add nothing to the statutory test or, if they do, they are adding an impermissible gloss. Thus it is not appropriate to consider the facts other than in the light of the statutory test.
95.It is also to be remembered, perhaps making the task of a trial Judge applying s 4AA more difficult, that the nature of relationships and commitments for both married and unmarried couples find expression in many different domestic arrangements. The application of the statutory criteria to reach a conclusion must be done judicially. …
The Full Court in Cadman made it clear that the question is whether the parties were:
a couple living together on a genuine domestic basis.

Chronology

The basic chronology in this matter is as follows.
On (omitted) 1967, the applicant was born. He is now 50 years old. On (omitted) 1969, the respondent was born. She is now 48 years old.
In about 1997, when the respondent was about 28 years old, she commenced an intimate relationship with Mr R. It lasted about three and a half years. They had a child together, A, who was born on (omitted) 2000, and who is now 17 years old. After their intimate relationship ended, the respondent and Mr R remained amicable until Mr R died in (omitted) 2015.
On (omitted) 2000, the applicant suffered a workplace injury. He received WorkCover payments, although there was a dispute about when they began. A letter from (omitted), which is part of exhibit W-2 to the affidavit of the applicant affirmed on 13 June 2017, indicates that the applicant received weekly compensation payments for a total of 104 weeks (which is two years) between the date of the injury on (omitted) 2000 and (omitted) 2007. In other words, the letter suggests that the applicant received WorkCover payments for two years out of almost seven. However, as noted below, the applicant resumed working in 2005.
In (omitted) 2000, the respondent’s father died. The respondent moved back to her family home at (omitted) (“(omitted)”) with her then partner, Mr R, and their son, A, to look after the respondent’s terminally ill mother. The respondent’s relationship with Mr R ended after (omitted) 2001 but before Christmas 2001 and he moved out of (omitted).
Shortly before Mr R moved out, the applicant and the respondent met. The applicant at that stage was living in the garage of a woman the respondent worked with. The respondent allowed the applicant to stay with her, A and her mother at (omitted). Shortly after the applicant moved in, the applicant and the respondent began a sexual relationship. When the relationship between the applicant and the respondent began towards the end of 2001, the applicant was 34 years old and the respondent was 32 years old.
The respondent was unemployed and in receipt of Centrelink payments from 2001 until the present, except for a brief period. She did not at any stage tell Centrelink that she was in a de facto relationship.

The applicant initially claimed that he lived with the respondent continuously from 2001 until November 2014 at four different houses owned successively by the respondent. However, under cross-examination, and after his sister had disclosed it, the applicant admitted that he rented separate premises for two years between 2007 and 2009. The respondent conceded that the applicant lived with her for six months at (omitted), but otherwise maintained that they did not live together at that address.
According to the respondent, after the applicant had been living with her for two months at (omitted), he became aggressive, abusive and controlling. The respondent said that she asked the applicant to leave but he refused. The respondent said that she then left, but returned after two nights, when she learned that the applicant had been taken to hospital after drinking heavily. The respondent said that when she returned to (omitted), she discovered that the applicant had broken cupboards in the kitchen.
In (omitted) 2002, the respondent’s mother died. The respondent and her brother inherited (omitted), but the respondent bought out her brother’s share. She was the sole owner registered on title. According to the respondent, the applicant moved out of (omitted) in about (omitted) 2002. On (omitted) 2003, the respondent sold (omitted).
On (omitted) 2003, the respondent bought Property B (“(Property B)”). The property was registered solely in the respondent’s name. At about that time, the parties conceived their daughter, X. The applicant, the respondent and A moved into Property B.
According to the respondent, the applicant lived at Property B for three months, before the police removed him, and he smashed the respondent’s house and car. The respondent said that, after moving out of Property B, the applicant lived at (omitted), (omitted), and (omitted), and at the home of a friend’s mother in (omitted). After that, according to the respondent, she and the applicant maintained an “on again/off again” relationship, but did not cohabit.
On (omitted) 2004, X was born.
On (omitted) 2004, the respondent applied for child support from the applicant for X. A letter dated 1 February 2017 from the Child Support Agency (exhibit L-7 to the affidavit of the respondent sworn on 6 July 2017) indicates that the applicant’s child support liability was registered continuously from 10 August 2004 until the present, with some periods registered for private collection and other periods registered for departmental collection.
On 7 October 2004, the respondent claims and the applicant disputes that the respondent took out the first of a number of intervention orders against the applicant. The alleged intervention order made on 7 October 2004 was not produced to the court. The respondent said that the applicant has been charged twice with breaching intervention orders but provided no documentation to that effect.
In about 2005, the applicant got a job at (employer omitted).
In about (omitted) 2006, the parties’ son, Y, was conceived. He was born on (omitted) 2006.
On (omitted) 2007, the respondent bought Property C (“Property C”). On (omitted) 2007, the respondent sold Property B. She said that she was trying to get away from the applicant, but he soon found her.
On 6 September 2007, the applicant’s WorkCover claim settled. The applicant claimed that he received $120,000 less legal costs of $20,000. The applicant produced no documentation to show that he received $100,000 net, but he did produce part of a letter showing that the legal costs were $20,000 (exhibit W-2 to the affidavit of the applicant affirmed on 13 June 2017). The applicant claimed and the respondent disputed that he contributed the $100,000 to household costs. The applicant did not suggest that he contributed any money to the purchase price of Property C, which was registered solely in the respondent’s name.
On (omitted) 2007, the respondent’s purchase of Property C settled and she and the children moved into it. The applicant implied that he moved in as well.
On 15 November 2007, the respondent claimed and the applicant disputed that the respondent took out her second intervention order against the applicant. The alleged intervention order was not produced to the court.
In late 2007, the applicant began renting (omitted) (“(omitted)”). He rented it for about one year. The applicant only admitted living in this property after his sister disclosed it in cross-examination. He said that it was “around the corner” from the respondent’s home at Property C.
According to the applicant, he regularly stayed at Property C and the respondent and children regularly stayed at (omitted).
In late 2008, the applicant began to rent (omitted), (“(omitted)”). He rented it for about one year. The applicant only admitted to living in this property after his sister disclosed it in cross-examination.
In February 2009, the respondent and the three children and their pets stayed at (omitted) with the applicant for a few days during the Black Saturday bushfires.
On (omitted) 2009, the respondent sold Property C. On (omitted) 2009, the respondent purchased Property A, her present home.
According to the applicant, he moved into Property A after the (omitted) lease ended. According to the respondent, she allowed him to stay at Property A for six weeks (on the sofa) when he told her that he had lost his job, his lease at (omitted) had expired and he had nowhere to live.
On 15 December 2011, the respondent claimed and the applicant denied that the respondent took out a 12 month intervention order against the applicant, which protected her and the three children. Contrary to the applicant’s denials, a summary of the intervention order was produced to the court as exhibit L-3 to the respondent’s affidavit sworn on 6 July 2017.
The applicant agreed that the police removed him from Property A. He then stayed at his nephew’s home at (omitted. However, he claimed that he returned to Property A soon after and continued to live there despite the intervention order which restrained him from being within 200 metres of that property.
In 2012 or 2013, the applicant, the respondent and the three children had a holiday together in Queensland. (The photographs of this holiday are date stamped 2013, but the respondent said it was in 2012.)
In September 2013, according to the respondent, the parties ended the relationship.
In September 2013, the applicant had communications from his employer addressed to him at (omitted), which was his nephew’s home, regarding disciplinary issues.
On 27 July 2014, the applicant took the children to the football.
In November 2014, according to applicant, the parties separated, with the respondent leaving Property A.
In December 2014, Mr R moved in with the respondent in Property A.
On 23 December 2014, a police officer applied for an intervention order to protect the respondent and the three children from the applicant. The order was made on 8 January 2015. The application and order were produced to the court. In the application, it is said that:
a)the applicant and the respondent were in a de facto relationship for around 12 and a half years;
b)the applicant’s relationship to the respondent was a former intimate personal relationship; and
c)they were in an on off relationship which ended about three months previously.
Mr R died in (omitted) 2015.
The parenting proceedings between the parties were resolved by way of consent orders on 30 March 2016. They provided for equal shared parental responsibility for X and Y, for X and Y to live with their mother and for X and Y to spend time with their father from 9am Saturday to 6pm Sunday on alternate weekends, every second Wednesday at times to be agreed between the parties, and for half school holidays.
On 15 September 2016, the applicant lodged a caveat over Property A.
On 26 September 2016, the respondent applied for a further intervention order. The matter was resolved by way of the applicant giving an undertaking to the court on 6 October 2016. However, the respondent sought to have the intervention order reinstated after she alleged that the applicant had breached the undertaking. Interim intervention orders were made on 27 October 2016 and 2 December 2016 to protected the respondent and the children from the applicant.

The applicant’s first affidavit

The applicant’s first affidavit was affirmed on 28 November 2016. In it, the applicant asserted that he was in a de facto relationship with the respondent from 2001 until November 2014. However, the applicant did not actually say in his affidavit that he and the respondent lived together throughout that time. He did say that, at the commencement of the relationship, he lived with the respondent at (omitted).
The applicant acknowledged in his first affidavit that the respondent alone bought Property B, Property C and Property A. The applicant said in his first affidavit that he moved with the respondent to Property A.
The applicant said in his first affidavit that he contributed $100,000 from his WorkCover settlement to the asset pool in about September 2007. However the applicant did not specify in his first affidavit how the $100,000 was applied. September 2007 was about the time that the respondent bought Property C. The applicant did not claim that he had contributed to the purchase price of that property. The applicant eventually admitted in cross examination that he began renting (omitted) in late 2007.
The applicant claimed in his first affidavit that he was employed during the relationship, and contributed his earnings to the family, until he had a workplace accident in about 2000. However, on the applicant’s own evidence, the relationship began in 2001, after the date of his accident.
The applicant also claimed in his first affidavit that he had contributed equally with the respondent as a homemaker throughout the relationship and had cared for the children including A.

The applicant’s second affidavit

The respondent’s second affidavit was affirmed on 13 June 2017, by which time it had become apparent that the respondent disputed that the parties had been in a de facto relationship. In his second affidavit, the applicant said that he and the respondent were de facto partners who resided in the same house and raised their children together.
The applicant exhibited to his second affidavit:
a)a number of WorkCover certificates of capacity and WorkCover correspondence dated between 12 December 2002 and 28 May 2003 addressed to the applicant at (omitted);
b)an overdue notice from Telstra addressed to the applicant at (omitted) dated 9 September 2003;
c)a parking receipt dated 2 August 2003 for $25 addressed to the applicant at (omitted), which is presumably a typographical error for (omitted);
d)a number of workers compensation payslips dated between 19 January 2005 and 31 August 2005 addressed to the applicant at (omitted);
e)a letter relating to workers compensation dated 28 February 2005 addressed to the applicant at (omitted);
f)an Optus telephone bill dated 10 March 2006 addressed to the applicant at (omitted);
g)a workers compensation letter dated 2 February 2007 addressed to the applicant at (omitted), saying that the applicant was injured on 31 July 2000, and his WorkCover payments would cease on 5 March 2007 because he had received the maximum of 104 weeks of WorkCover payments (whether consecutive or not) and he had a current work capacity;
h)part of a letter dated 6 September 2007 from Maurice Blackburn Cashman addressed to the applicant at (omitted), saying that the applicant’s claim has now been settled, the solicitor’s costs would be about $20,000 and the applicant could expect a cheque in about six to eight weeks, (the part of the letter attached to the applicant’s second affidavit does not say how much the applicant was to receive as a settlement sum);
i)a letter dated 13 September 2007 from Maurice Blackburn Cashman addressed to the applicant at Property B, acknowledging receipt of paperwork;
j)a bank statement for the period 24 March 2009 to 9 April 2009 addressed to the applicant at Property C, which is presumably a typographical error for Property C;
k)a letter dated 17 January 2008 from Maurice Blackburn Lawyers addressed to the applicant at Property C;
l)a payslip dated 5 March 2008 addressed to the applicant at Property C;
m)a (omitted) licence issued on 28 May 2009 addressed to the applicant at Property C;
n)a superannuation statement as at 31 December 2009 addressed to the applicant at Property C;
o)a letter dated 21 May 2010 from Maurice Blackburn Lawyers addressed to the applicant at Property C;
p)an invoice dated 27 October 2010 addressed to the applicant at Property A regarding car products;
q)an invoice dated 29 July 2013 addressed to the applicant at Property A regarding two electronic cigarettes;
r)a printout showing that the respondent added a photograph of the applicant to Facebook on 25 August 2013;
s)an invoice dated 22 May 2012 addressed to the applicant at Property A regarding car products;
t)text messages on 3 August 2014 between A and another person, who the applicant claimed was him and the respondent said was not him, in which the other person says, Love ya mate, and A says, Love you too;
u)a child support assessment for the period 19 September 2016 to 20 June 2017, assessing the applicant at a rate of $0 per month;
v)a child support assessment for the period 1 August 2016 to 18 September 2016, assessing the applicant at a rate of $34.50 per month;
w)an application for an intervention order made by the respondent against the applicant on 26 September 2016, in which the respondent described the applicant as her ex-partner and as her former domestic partner;
x)an interim intervention order made on 27 October 2016 where the applicant is the respondent and the respondent and the children are the affected family members;
y)an interim intervention order made on 7 January 2016 where the applicant is the respondent and the respondent and the children are affected family members;
z)an application for an intervention order made by a police officer on 23 December 2014 on behalf of respondent in which it is said that:
i)the applicant and respondent were in a de facto relationship for about 12 and a half years;
ii)they were in an on off relationship which ended about three months ago;
iii)they were in a former intimate personal relationship;
aa)an undertaking made by the applicant on 6 October 2016 in response to an application for an intervention order;
bb)a notice of hearing dated 14 October 2016 for the Magistrates’ Court in Seymour in relation to a family violence complaint between the applicant and the respondent;
cc)an interim intervention order made on 2 December 2016 where the applicant is the respondent and the applicant and A are affected family members;
dd)an affidavit sworn or affirmed by the respondent on 22 March 2016 for the purposes of the parenting proceedings in which the respondent said that:
i)she was in a de facto relationship with the applicant from 2001 and separated in September 2014; and
ii)the applicant assisted in caring for X and Y and also assisted with the care of A until about 2011 when the applicant became abusive towards A;
ee)some Facebook messages between the applicant and the respondent in March and April 2014; and
ff)various family photographs including studio photographs of the applicant, the respondent and the three children, showing Y at about the age of two or three, probably taken in about 2009.
The applicant said in his second affidavit that he received a workers compensation payout in September 2007 of $100,000, after solicitor’s costs. However, the applicant did not provide any documentary evidence substantiating the amount of the payout he received and the respondent disputed the amount. The applicant said he spent the $100,000 as follows:
a)$7,000 for concreting at Property C;
b)$15,000 for a family holiday to Queensland;
c)$23,000 for a car;
d)$20,000 for white goods, clothing and necessities for the family; and
e)the balance, being $35,000, for day-to-day living expenses.
The applicant said in his second affidavit that:
a)he and the respondent cared for the children and attended to household duties equally;
b)the respondent contributed her Centrelink income to the mortgage and outgoings and he paid other family expenses;
c)the applicant and respondent did not maintain joint accounts;
d)the respondent did not disclose to Centrelink that they were in a relationship;
e)the respondent had all the bills in her own name;
f)the parties shared equally in all bills, groceries and children’s expenses;
g)the applicant paid for all holidays in full;
h)the respondent did not apply for any intervention orders against the applicant naming the children as affected family members until December 2014 (para 20); (this is contradicted by documentary evidence provided by the respondent showing an intervention order in 2011 protecting her and the three children from the applicant);
i)the respondent had not obtained any intervention orders against the applicant prior to 23 December 2014, and the application filed on 23 December 2014 indicated that there had been no previous applications for intervention orders (para 38);
j)the applicant and respondent were recognised by family and friends as a couple; and
k)when the applicant had no money, the respondent supported him financially.

Ms M’s affidavit

Ms M said in her affidavit affirmed on 13 June 2017 that:
a)she is a (occupation omitted);
b)she and her husband had been friends of the applicant since 2012;
c)the applicant introduced her to the respondent and the children in 2012;
d)when she met the applicant, he, the respondent and their children were living at Property A;
e)Ms M and her husband visited Property A many times until the applicant and respondent separated in late 2014;
f)Ms M understood that the family went on many holidays together; and
g)until they separated, Ms M considered the applicant and respondent to be de facto partners.

Ms B’s affidavit

The applicant’s sister, Ms B, affirmed an affidavit on 12 June 2017 in which she said that:
a)she is a (occupation omitted);
b)she and her son, B, were the godparents of A, X and Y;
c)she took the photograph of the applicant with the children on 27 July 2014 when they went to a football game;
d)she had a close relationship with the applicant, the respondent and all three children between 2001 and November 2014, involving frequent visits to each other’s houses especially on special occasions;
e)she is aware that the applicant, the respondent and the children went on holidays together;
f)she believed that the applicant and respondent sold “their” property at (omitted) and moved to Property B where she visited them on numerous occasions;
g)the applicant and the respondent sold “their” house in Property B in 2007 and moved to Property C, where she visited them on numerous occasions;
h)the applicant and respondent sold “their” house in Property C in 2009 and moved to Property A, where she visited them on numerous occasions until they separated in late 2014;
i)during their relationship, the applicant and respondent often visited her house for functions;
j)she considered the applicant and the respondent to be de facto partners;
k)since separation, she has maintained a close relationship with the applicant and X and Y;
l)she knew that the applicant lived with the respondent at their various homes; and
m)she knew of no addresses for the applicant other than the addresses that he shared with the respondent during their relationship.

Ms B attached to her affidavit two photographs from about 2004 of the applicant, the respondent, A and X as a baby, and a photograph from 27 July 2014 of the respondent and the three children ready to go to the football.

Ms B’s oral examination

Ms B was the first witness to give evidence. Under cross-examination, Ms B was asked how she could have used precisely the same wording as Ms M in some passages of her affidavit. Ms B insisted that she had drafted her affidavit herself, and had provided a draft to the applicant for his solicitor to put in affidavit form for her. Ms B said in effect that it was a coincidence that she had use the same words as Ms M.
In re-examination, Ms B said that the solicitor had arranged for her draft to be typed up and improved the punctuation. She initially said that the wording was the same, but later conceded that the solicitor had changed some of her words. She said that the affidavit in final form was what she had wanted to say.
Ms B then produced her original handwritten draft. It was marked as exhibit 1. She later said that she had put the handwritten draft into the form of a statutory declaration, without changing any words, and gave that to the applicant to give to his solicitor. Ms B’s handwritten draft says the following:
To Whom it may Concern,
I am writing to you to let you know that my brother Mr Weldon has been in a living and loveing relationship over the past 14 years with Ms Levitt. Ms Levitt has a Son A which my brother Mr Weldon has happily been a loveing step father to him, for 14 yrs, and after Ms Levitt asked my son B, who is now 40, and myself to become god parents to him and their other 2 children, X + Y we were so happy as we are also their Aunty + Cousin.
We have shared all our christmas days and birthdays to-gether and Mr Weldon has been a great part of their life by takeing them on their yearly holidays and a photo never lies when I look at them over time and See how they enjoy the times they all get their afL footy Jumpers on and go to the games as a family. Please contact me If you would like anymore information.
Ms B
Ph. (omitted)
(errors in original)
Ms B’s handwritten draft is very different from her affidavit as filed. Unlike her affidavit filed in this proceeding, Ms B’s original draft said nothing about:
a)the various addresses where the respondent had lived;
b)the applicant moving with the respondent to various addresses;
c)the applicant and respondent separating in November 2014;
d)Ms B visiting the applicant and respondent at their various homes;
e)(omitted), Property B, Property C and Property A being the joint property of the applicant and respondent;
f)Ms B regarding the applicant and the respondent as de facto partners; or
g)Ms B not being aware of any residence of the applicant between 2001 and 2014 apart from (omitted), Property B, Property C and Property A.
Notwithstanding that Ms B said in her affidavit that she was not aware of the applicant having any residence other than (omitted), Property B, Property C and Property A, Ms B conceded in cross-examination that the applicant did move out of Property C and got his own place in (omitted), around the corner from the respondent, when the applicant and respondent were having “a couple of tiffs”. Ms B also conceded that the applicant rented another property in (omitted). However, Ms B maintained that the applicant and respondent were still “together”. She later said that the applicant rented the other properties for convenience, but the applicant and respondent were still “together”.
It was put to Ms B in cross-examination that from 2013 onwards, the applicant had lived at (omitted) in (omitted) in the home of her son, B. Ms B conceded that the applicant sometimes stayed at B’s place if he had had a drink or if the applicant and respondent were having an argument.
Ms B was shown a letter dated 5 September 2013 to the applicant from his employer, (employer omitted), regarding performance concerns which was addressed to the applicant at (omitted), (exhibit L-4 to the respondent’s affidavit sworn on 6 July 2017), which was her son’s home. Ms B said throughout that the applicant did not live at (omitted), but sometimes just used that address for mail. It was put to Ms B that, on that reasoning, the applicant may have used the respondent’s addresses for mail. Ms B’s answer was unclear.
It also emerged in cross-examination of Ms B that she had signed her affidavit in the presence of the applicant but not in the presence of the solicitor before whom it purported to have been affirmed. If that is correct, it would appear that the solicitor has behaved improperly. However, the evidence in Ms B’s affidavit can still be received because she was properly affirmed before this court and she confirmed that her affidavit was true and correct.

The applicant’s oral examination

The applicant was the second witness to give evidence. Notwithstanding that he had heard his sister give evidence about him renting (omitted) and (omitted), he made no corrections to his affidavits at the commencement of his oral evidence.
The applicant conceded in cross-examination that he had told the respondent that he would not fight for her house if she dropped her claim for child support. The applicant also conceded in cross-examination that he had paid no child support since separation, which I assume meant since November 2014, even though he was working. He said that was in accordance with his child support assessment.
The applicant denied in cross-examination that he had spent less than twelve months in total living with the respondent and that their relationship was properly characterised as a boyfriend-girlfriend relationship.
In relation to the claim in his affidavit that, on 23 December 2014, the respondent had obtained an intervention order against him for the first time naming the children as affected family members, the applicant said that it was the first time the respondent had included the children as affected family members. That statement was not correct, as exhibit L-3 to the respondent’s affidavit sworn on 6 July 2017 show that the respondent obtained an intervention order against the applicant on 15 December 2011 including the three children as affected family members. The intervention order obtained on 15 December 2011 also failed to accord with the applicant’s statement in paragraph 38 of his second affidavit that he disagreed with the respondent’s claim that she had obtained any intervention orders against him prior to 23 December 2014. When presented with a copy of exhibit L-3 to the respondent’s affidavit sworn on 6 July 2017, the applicant did not dispute its authenticity.
The applicant conceded in cross-examination that the police had removed him from Property A in conjunction with the intervention order obtained on 15 December 2011. The applicant also conceded in cross-examination that after being removed by the police from Property A he went to live in (omitted), which is where his nephew, B, lived.
The applicant acknowledged that his address was shown as (omitted) on a letter dated 5 September 2013 from his employer, (employer omitted), (exhibit L-4 to respondent’s affidavit sworn on 6 July 2017) and on his payslips from (employer omitted) for pay dates 11 September 2013 and 25 September 2013 (exhibit L-5 to the respondent’s affidavit sworn on 6 July 2017). The applicant denied that he was living at (omitted) at that time, and said that he used the (omitted) address because he thought it would be easier to get a job at (employer omitted) as a (occupation omitted) if he said he was living in (omitted), rather than in Property A. He also said that he used the alternative address of (omitted) because the respondent was receiving Centrelink benefits even though he was living with her at Property A.
The applicant stated squarely that he did not live at (omitted) and pretty much lied to (employer omitted) so that he could get a job. The applicant maintained that a lot of people lie on their resume to get a job. The applicant denied that he had not lived with the respondent, except for short periods, but had merely used her addresses as mailing addresses.
The applicant denied that he had ever lived at (omitted) in (omitted) or at (omitted). He admitted that he lived at (omitted) and (omitted). He denied that he had lived at (omitted) and said it was just a mailing address.
He denied that he had lived at (omitted) for only a few months. He denied that he had been aggressive or abusive to the respondent during that period but acknowledged having had arguments. The applicant agreed that the respondent may have telephoned the police.
The applicant was shown a copy of the Exhibit 3, which was a colour copy of exhibit L-1 to the respondent’s affidavit sworn 6 July 2017, which the respondent said showed damage caused by the applicant while she was living at (omitted). The applicant denied that he had slashed the respondent’s couch or damaged her toilet. He agreed that he had smashed the back lights of the respondent’s car but said that was after she had torn the aerial off his car. The applicant agreed that he had been charged for damaging the respondent’s car. He was not sure whether he was convicted but recalled being told to put $100 in the poor box. The applicant maintained that he and the respondent were back together the day after he smashed her car.
In relation to the respondent’s move to Property C, the applicant said:
I’m pretty sure I did go there at the start …
The applicant said that he moved out of Property C and rented a property in (omitted) around the corner because:
Things weren’t going too well for us both. Arguing and stuff. So I moved out. But we stayed together when I was living at that rental, yes.
The applicant agreed that he rented (omitted) for 12 months and then (omitted) for 12 months.
The applicant said that, after the respondent bought Property A, he did not live there until his lease ran out in (omitted), but they were still seeing each other.
The applicant said that he moved out of Property C because he thought he was going to have a breakdown.
The applicant said that when he said that he was in a de facto relationship with the respondent he meant that they were family, lovers, a couple, partners and his life.
The applicant said that when the respondent bought new properties, he knew that she was moving and did not try to change her mind.
When asked what he did that amounted to care of the children, the applicant said he had a tattoo of each of them, including A, and he fed them.
The applicant maintained that he had given the respondent money to pay for bills and household expenses. However, he only produced one page of a bank statement and no other documents to substantiate his claim. The bank statement is for the period 24 March 2009 to 9 April 2009 and shows some purchases at supermarkets in (omitted), where the applicant lived but the respondent did not, and a purchase at a supermarket in (omitted), which is half way between where the applicant lived in (omitted) and the respondent lived in (omitted). The applicant produced no documents to prove that he received a WorkCover settlement of $100,000 and that he contributed it to the family.
In relation to hardship, the applicant said that he earned on average $800 per week and paid $200 per week board, leaving $600 per week for other expenses.
In re-examination, the applicant said that it was difficult having the children stay with him while he was boarding with another man and his child.

Ms M’s oral examination

Ms M conceded in cross-examination that a solicitor was not present when she signed her affidavit, notwithstanding that it purports to have been affirmed in front of a solicitor. She maintained that she had written her affidavit herself, even though it contained the sentence:
Until the time of separation, my husband and me considered Mr Weldon and Ms Levitt to be de facto partners
which also appeared in virtually identical terms in the affidavits of Mr W, and the applicant’s sister, Ms B. Ms M denied that she had colluded with the other two deponents.
Ms M maintained that she had written her affidavit herself, even though it contained the sentence:
My husband and I visited this residence on numerous occasions until Mr Weldon and Ms Levitt separated in about late 2014 …
that was identical to a sentence in an affidavit affirmed by Mr W on 12 June 2017, albeit with the word wife being substituted for the word husband.
Ms M denied that she was lying.

The respondent’s affidavit

The respondent swore or affirmed an affidavit on 23 May 2017, which she did not rely upon. The respondent also swore an affidavit on 6 July 2017, which she did rely upon. In that affidavit, the respondent said that:
a)she did not live in a de facto relationship or in a domestic relationship with the applicant;
b)they had a relationship but it was “on and off” as boyfriend/girlfriend without being a couple;
c)after her relationship with Mr R ended, the applicant came to live at her home in (omitted);
d)the applicant had been living in the garage of a woman the respondent had previously worked with;
e)shortly after he moved in, the applicant and respondent became romantically involved;
f)after about two months, the applicant became aggressive, abusive and controlling;
g)the respondent was afraid for her safety and stayed at Mr R’s place for two nights;
h)she returned home after learning that the applicant had been drinking heavily, bled from the mouth and had been taken to hospital;
i)on returning home, she discovered that the applicant had broken the cupboards in her kitchen;
j)after the respondent’s mother died, the respondent bought out her brother’s half share of the house;
k)as the applicant had no income, he suggested that the respondent sell her house at (omitted), and move to the (omitted) suburbs, as he had friends there who could give him employment;
l)the respondent bought Property B in (omitted) 2003, when she was pregnant with X;
m)the applicant stayed with the respondent in Property B for no more than three months;
n)the applicant did not obtain any work, and, after a number of fights, the respondent asked him to leave;
o)the applicant refused to leave and the respondent called the police to evict him;
p)the respondent went to the applicant’s sister’s house to be out of the way until the applicant left Property B;
q)the applicant went to his sister’s house and damaged the respondent’s car, by breaking lights and the side mirrors and scratching the paint work;
r)when the respondent returned to Property B, she discovered that the applicant had slashed her new lounge chairs, cut the bench tops in the kitchen and broken the toilet and tiles in the bathroom;
s)the respondent felt unsafe in the house and put pieces of wood in the windows so they could not be opened, asked a friend of the applicant’s niece to stay with her, and had security screens installed;
t)the respondent did not allow the applicant to live at Property B again;
u)however, they did resume their “on again/off again” relationship as boyfriend and girlfriend, and conceived Y;
v)the applicant visited to see the children but would become aggressive and abusive each time;
w)the respondent did not want the applicant to know where she was, so in (omitted) 2007, she bought Property C;
x)the applicant eventually located at her;
y)by this time, the applicant had received his WorkCover payout, and rented accommodation in (omitted), for about 12 months, and when the lease expired, rented a unit (omitted);
z)the respondent obtained intervention orders against the applicant:
i)on (omitted) 2004 when she was living in Property B and he was living in (omitted);
ii)on (omitted) 2007, when he was living in (omitted);
iii)on (omitted) 2011, when she was living at Property A;
iv)on (omitted) 2015, when he was at (omitted); and
v)on (omitted) 2016, when he was at (omitted);
aa)the applicant often ignored the intervention orders;
bb)the order made on 15 December 2011 prevented the applicant from being at the Property A property;
cc)the applicant has been charged twice with breaching intervention orders including by yelling at A at the (omitted) police station;
dd)when the applicant was living in (omitted), the respondent had to obtain an intervention order because the applicant would not leave the her alone;
ee)the respondent bought Property A in 2009 when the applicant was living at (omitted);
ff)the applicant again discovered the respondent’s whereabouts;
gg)the applicant and respondent resumed their “on again/off-again” relationship;
hh)however, it did not last long as the respondent had resumed her relationship with Mr R;
ii)in 2011, when the respondent was living in Property A, the applicant told her he had lost his job, had nowhere to live and could not get unemployment benefits for six weeks;
jj)the respondent said the applicant could sleep on her sofa for six weeks;
kk)the applicant became abusive again;
ll)in December 2011, the respondent asked the applicant to leave but he refused;
mm)the respondent rang the police to evict him and she and the children left the house while the eviction occurred;
nn)the applicant returned to (omitted);
oo)when the respondent returned to Property A, she discovered that the applicant had smashed A's PlayStation and the presents the respondent had bought him for Christmas;
pp)the respondent completely ended her relationship with the applicant in September 2013;
qq)in (omitted) 2014, Mr R moved into the respondent’s house at Property A and, in (omitted) 2015, Mr R moved to Tasmania with his parents;
rr)Mr R died later in 2015;
ss)the applicant more than once has threatened to kill the respondent;
tt)the respondent and A are having counselling to deal with the applicant’s abuse of them;
uu)when the applicant and respondent were on speaking terms, the applicant asked the respondent to arrange with the Child Support Agency for private payments, which the respondent did from time to time;
vv)the applicant threatened the respondent that he would go for half of her house if she did not drop the child support claim;
ww)the applicant has never assisted financially with the children or made any contribution to household expenses;
xx)the applicant received a substantial WorkCover payment but did not contribute to the purchase price of any of the respondent’s houses, buy any white or other goods for the houses or pay any maintenance or other expenses;
yy)the applicant did purchase white goods and other items for his rental property at (omitted);
zz)the respondent agreed that the applicant could use her addresses for mail;
aaa)the respondent’s statement in her parenting affidavit that she had been in a de facto relationship with the applicant was made without legal advice and without an accurate understanding of what such a relationship involved, and under the misapprehension that parents who were not married or together were de factos; and
bbb)the applicant and respondent have only lived in the same house for 11 or 12 months in total out of the 16 years they had known each other.

Ms P’s affidavit

Ms P swore or affirmed an affidavit on 6 July 2017 in which she gave a lot of hearsay evidence. However, she also said:
a)she is Mr R’s mother and A’s grandmother;
b)she first met the respondent about 20 years ago when she and her son, Mr R, began a relationship;
c)from the time A was six weeks old, she picked him up from the respondent’s home every second Friday and looked after him for the weekend;
d)later, A went to Ms P’s home each week or fortnight, and she took him to school on Monday morning, until she moved to Tasmania in February 2011;
e)sometimes, Ms P would pick A up on a weeknight as well;
f)after Mr R and the respondent broke up, the applicant moved into the respondent’s house for about three months;
g)on many nights, the respondent would stay at Ms P’s house because she was too frightened to stay at home because the applicant had threatened her;
h)the respondent spent two Christmas days at Ms P’s house when she was pregnant with X and when X was six months old (that is, in 2003 and 2004);
i)Ms P continued to collect A each week or fortnight after the respondent moved to (omitted);
j)one day, when Ms P went to collect A, she saw that the respondent’s lounge chairs had been slashed, the kitchen bench cut, wooden balustrading broken, and the toilet and tiles in the bathroom broken;
k)the respondent arranged for a friend to stay with her for a week and had security screens installed;
l)one day, the respondent telephoned Ms P and said she wanted to move to a place where the applicant could not find her;
m)Ms P, the respondent and the children went to (omitted) where the respondent found the house she bought in Property C;
n)Ms P assisted the respondent to move into Property A;
o)the applicant was not living with the respondent at that time;
p)although Ms P picked up A from the respondent’s home every week or two, she only occasionally saw the applicant’s car there;
q)just before Christmas 2011, the respondent told Ms P that she and the children were hiding in her car until the police evicted the applicant;
r)the respondent rang shortly afterwards and said that the applicant had destroyed A's PlayStation and all the Christmas presents the respondent had bought for him;
s)Ms P gave the respondent money to replace the broken presents;
t)in 2012, Ms P stayed with the respondent (in Property A) for three nights to attend A’s primary school graduation and the applicant was not there;
u)from her frequent visits to the respondent’s house during 2001 to 2013, Ms P considered that the applicant did not live in the respondent’s home for more than 12 months in total;
v)Ms P did not regard the applicant and the respondent as being in a domestic relationship;
w)when they lived together it was because the applicant had nowhere else to live or was unemployed;
x)they only stayed in contact because of the children; and
y)often the contact was volatile and not like a de facto or similar relationship.

The respondent’s oral evidence

The respondent said in cross-examination that:
a)a boyfriend/girlfriend relationship could last 20 years, the parties could live together, they would have a sexual relationship, they could have children together, they could both care for the children, they could both be friendly with the other’s family, they might have Christmas with each other’s family, they would socialise with each other’s friends, they would have separate finances, they might have shared endeavours such as running together or giving up smoking together;
b)differences between a boyfriend/girlfriend relationship and a de facto relationship would be sharing a house, sharing bank accounts, sharing the costs of groceries and bills;
c)in a de facto relationship she would keep her own bank account but would have a joint bank account in a married relationship;
d)people in de facto relationships could not live in different houses;
e)she was not in a de facto relationship with the applicant because they would be together for two or three or four months and then split up;
f)she acknowledged that in her affidavit filed in the parenting proceedings, she said that she separated from the applicant in September 2014;
g)she knew that separation date was not accurate because she had been going out with a friend from June or September 2013 and she knew she was single at that time;
h)when she told the police officer for the intervention order application made on 23 December 2014 that she had been in a de facto relationship with the applicant she did not know what the term meant;
i)when she said in her intervention order application of 29 September 2016 (exhibit W-6A to the applicant’s affidavit affirmed on 13 June 2017) that the applicant was her ex partner and they had been separated since 2013, she meant that he was her ex-boyfriend;
j)they had a sexual relationship, on and off, until September 2013;
k)in exhibit W-13 to the applicant’s affidavit affirmed on 13 June 2017 (Exhibit 4), the following Facebook communications occurred[1]:
[1] Errors in original messages
i)on 16 March 2014, the applicant sent the respondent a message stating:
Tanx for everything on wkend spunk, had a great time with ya yest I always do love you xo
and included a cartoon of a puppy holding a love heart;
ii)the respondent replied to the applicant with a cartoon of a puppy saying thank you with a love heart and said:
Change my cover photo have a look love the photo
iii)the applicant replied:
Beautiful xo
iv)on a date that was not shown in Exhibit 4, the applicant sent the respondent a cartoon of an animal kissing another animal on the cheek; and
v)the respondent replied sending a cartoon of two foxes with their noses touching and a love heart in between them;
vi)on 28 March 2014, the respondent sent the applicant a cartoon of an animal blowing a kiss with a love heart;
vii)the applicant replied saying:
Tanx sexy
viii)the respondent replied saying:
We love ya c u tomo xoxox of to bed soon
ix)on a date that was not shown in Exhibit 4, respondent sent the applicant a message saying:
Catch babe love ya going to try and put new door handles on wish me good luck
x)and the applicant replied:
You be fine ya not a dill, only wen ya act like a bimbo lol
Catch spunk let me no how ya go love you xo
xi)on 1 April 2014, the applicant sent the respondent a message saying:
How’s kids sexy and how’d ya go with door handles?
xii)and the respondent replied:
Just put one on had to get a tool to do it so I could break wood kids had a good day
How is your day going
xiii)and the applicant said:
Got 30 cows to go so should be home early (smiley face emoji) nite all
l)she was not in a sexual relationship with the applicant when those messages were sent;
m)she sent messages like that so that the applicant would leave her alone;
n)she and the applicant spent the children’s birthdays together as a family in some years but not in 2013;
o)she and the applicant did not regularly spend holidays together but they did have a holiday with the children in Queensland in 2012;
p)the applicant did not pay for the holiday;
q)the respondent conceded in her affidavit sworn or affirmed on 22 March 2016 for the parenting proceedings that the applicant helped in caring for X and Y and also assisted with the care of A until about five years earlier (that is, until 2011);
r)the applicant’s relationship with A was on again off again;
s)studio photographs of the applicant, the respondent and the three children were taken in about 2007 or 2008 and the applicant paid for them because he was trying to make the respondent happy;
t)a photograph of the applicant and A in front of a car was taken at Property A, and they were getting along on that day, but the applicant was not living at Property A;
u)photographs of Y’s christening day in 2013 included the applicant’s nephew, B, who was the godfather (the applicant’s sister, Ms B, was the godmother but she was not in attendance);
v)a photograph of the applicant and the respondent at a (omitted) celebration was taken when they were first going out (in 2001 or 2002);
w)a photograph of the applicant and the respondent with B holding Y at less than one year of age was taken at B’s birthday party in a pizza place, and another photo of the applicants, the respondent and B was taken at the same place;
x)B and Ms B were heavily involved in all three children’s lives;
y)the respondent did not regularly spend time with B, Ms B, the applicant and the children;
z)the applicant had brought B and Ms B to the respondent’s place;
aa)the respondent and children have been to Ms B’s place;
bb)the respondent and Ms B had a good but not close relationship in the past;
cc)the children had a good relationship with B, who is a very kind man, but they did not see him often;
dd)if the respondent went to a family event attended by B, she would take the children;
ee)the respondent did not go to Christmas at Ms B’s house when she was pregnant with X or the following year (that is, in 2004 and 2005), as she went to Ms P’s house;
ff)since then, the respondent has spent a couple of Christmases at Ms B’s house;
gg)the respondent did not spend any time at Ms B’s house most Christmases;
hh)Ms M and her husband spent time at the respondent’s house when the applicant invited them to watch the football;
ii)the respondent was a not a friend, as such, of Ms M; and
jj)Ms J and her husband had been to the respondent’s home when the applicant was there and she and the respondent had been to theirs.

Ms P’s oral evidence

Ms P said in cross examination that:
a)the time she had with A was the same time her son, Mr R, spent with A as Mr R was living with her at that time;
b)she would usually collect A from the respondent as Mr R worked evening shift;
c)it would be fair to say she did not have a good relationship with the applicant;
d)the respondent spent Christmas Day at her home in 2003 and 2004;
e)each Christmas she would pick A up from his home in the afternoon to spend time with Mr R;
f)on one Christmas Day, she collected A from Ms B’s home in (omitted);
g)she would see the applicant’s car parked in the driveway when she collected A from the respondent, which would take place sometimes after school and sometimes in the morning before school;
h)she saw the applicant’s car parked outside the respondent’s various homes a maximum of 15 times;
i)when the respondent was building her home at Property A, she saw the applicant’s car at the respondent’s home three or four times at the most;
j)the applicant may have been at work or somewhere else at those times;
k)when she assisted the respondent move from Property C to Property A, she knew that the applicant did not move in with the respondent because the respondent and A had told her;
l)she continued to collect A from the respondent’s home when they moved to Property A;
m)during this time, she only occasionally saw the applicant’s car there;
n)in 2012, she spent three days with the respondent and A at the Property A home and that the applicant was not there;
o)she saw the broken PlayStation and the toys the applicant broke prior to Christmas 2011;
p)she did not regard the applicant and respondent to be in a domestic relationship as when she attended the respondent’s home, the applicant was usually not there, though there were other times that she was not allowed to attend the house as the applicant had returned;
q)the applicant stayed in Property B for six to eight weeks and he did not move with the respondent to Property C;
r)the applicant and respondent did live together now and again but it was infrequent;
s)the respondent attended her home when she had had a fight with the applicant and was too frightened to go home as he had threatened her;
t)she said that this occurred on around 20 occasions over a period of ten to eleven years;
u)the applicant and respondent were clearly in no way [in] a de facto or like relationship;
v)the applicant and respondent had little in common and no shared interests;
w)the applicant and the respondent did not live together as one would expect of a genuine couple;
x)the respondent had no commitment to the applicant and would see Mr R regularly;
y)to the outside world, [the applicant and respondent] were acquaintances at best; and
z)she knew that the respondent saw the applicant’s sister, Ms B, and her son, B, now and again and that Ms B and B were A’s godmother and godfather.

The Elias principle

In an early decision of the Family Court, In the Marriage of Elias (1977) 29 FLR 393; (1977) 3 Fam LR 11,496; (1977) FLC 90-267, Goldstein J held that the parties were bound by their statements to governmental authorities. That principle, presumably, applies equally to statements by omission. In Elias, the relevant statement was a statement made by the husband to the Commissioner of Taxation that a smash repair business was owned half by the husband and half by the wife. The husband stated to the court in family law proceedings that the business was entirely his. Goldstein J did not accept the husband’s statement to the court, because it was contradicted by the husband’s statement to the Commissioner of Taxation.
More recently, however, the Elias principle has fallen into disfavour. For example, in Sinclair & Whittaker [2013] FamCAFC 129; (2013) FLC 93-550, the Full Court of the Family Court said:
65.Given the nature of the definition of a de facto relationship in the Act the ultimate decision as to whether there is a de facto relationship at any given time is a matter for the court and not a matter for the parties. Although their perception of the nature of the relationship is a relevant matter it is not determinative.
66.The fact that such statements are made to lenders or government authorities does not elevate them to a higher status. In Hayes v Marquis [2008] NSWCA 10 McColl JA said at [99]:
Statements to a government authority apparently inconsistent with a party’s case may complicate the resolution of the issue of the nature of the relationship, but they are not determinative. They are taken into account as part of all the circumstances …
In Sinclair & Whittaker, the primary judge found that a de facto relationship existed, notwithstanding the applicant’s statements to governmental authorities and lenders that she was single. That finding was not disturbed on appeal.
In the present case, the respondent claimed child support from the applicant from 10 August 2004 until the present. The respondent lodged the claim a few weeks after X was born. The applicant was found to be liable for child support and has remained so for almost the entire period of the relationship between the applicant and the respondent.
Section 25 of the Child Support (Assessment) Act 1989 provides that:
A parent (the applicant) of a child may apply to the Registrar under this section for administrative assessment of child support for the child if:
(a) …
(b) the applicant is not living with the other parent as his or her partner on a genuine domestic basis (whether or not legally married to the other parent); and
(c) … .
The respondent’s child support application was necessarily based on her claim that the applicant and the respondent were not in a de facto relationship. There was no suggestion that the applicant, at any time during the 13 years that he has had a child support liability, told the Child Support Agency that he was not liable for child support because he was in a de facto relationship with the respondent.
Although the Elias principle is no longer in favour, the bare fact that the applicant did not seek to correct the Child Support Agency’s records is significant evidence that the applicant was not in a de facto relationship with the respondent from 2004 onwards.
Having said that, there are no doubt people who do not disclose to Centrelink that they are in a de facto relationship because they do not wish to have their governmental entitlements reduced. Indeed, the applicant gave evidence that the respondent had not disclosed the existence of the de facto relationship to Centrelink, and implied that she had not done so for that reason.
If the parties had been in a de facto relationship, the respondent would probably have perpetrated a serious fraud on the Commonwealth because she would probably have been substantially overpaid, and would probably owe the Commonwealth a large sum of money. The applicant would have benefitted from the respondent’s fraud, because, even on his own evidence, there were various times when he had no money of his own and he was supported by the respondent.
As fraud is a serious allegation, it needs to be proved to the Briginshaw[2] standard. Whether there was a fraud on the Commonwealth in this case depends on whether the applicant and respondent were in fact in a de facto relationship. As Sinclair & Whittaker makes clear, that question is to be determined in the light of all the evidence in the case, and is not to be determined solely by the parties’ express or implied descriptions of their own relationship. The question of whether the parties were ever in a de facto relationship is considered below.
[2] Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] ALR 334; (1938) 12 ALJR 100; [1938] HCA 34
The wisdom of Sinclair & Whittaker is demonstrated in this case by the fact that a further potential application of the Elias principle would produce the opposite result to the applicant’s implicit statement to the Child Support Agency that he was not in a facto relationship. The respondent’s statements in her intervention order applications, to the effect that the applicant was her former de facto partner, would mean, on the Elias principle, that the respondent was in a de facto relationship with the applicant.
On the other hand, the respondent’s statement in an intervention order application to the effect that the applicant was her former intimate partner tends to go the other way. That is, it supports the proposition that the applicant was merely her boyfriend.
The net effect of all this is that the court is required to look at all of the evidence, including statements to governmental authorities and others, and assess whether, in all the circumstances, the parties were a couple living together on a genuine domestic basis.

Credibility findings

The applicant admitted to the court that he had lied about his address in a job application. In doing so, he lied for financial advantage in the form of making himself more likely to be employed. Consequently, it would not be surprising if the applicant also lied in these proceedings to obtain a financial advantage in the form of a property settlement.
Indeed, the applicant did lie in these proceedings in saying that the respondent had not brought any intervention order proceedings to protect her and the children prior to December 2014. The respondent’s exhibit L-3 to her affidavit sworn on 6 July 2017 shows that she obtained an intervention order against the applicant to protect her and the children in 2011.
The applicant also lied by omission in these proceedings by not stating in his affidavits that he had rented premises in (omitted) and (omitted) and lived in those premises separately from the respondent and the children. The applicant only admitted to renting and living in those premises after his sister had given oral evidence to that effect.
I also consider that the applicant has lied to the court about receiving $100,000 as a WorkCover settlement. The applicant exhibited to his second affidavit a copy of the first page of a letter from his solicitor which said that the claim had been settled and that $20,000 in legal costs would be deducted from the amount payable to the applicant. However, the applicant did not exhibit to an affidavit or otherwise produce to the court the subsequent page or pages of that letter.
It is apparent from the first page of the solicitor’s letter that the subsequent page or pages stated the total sum that the applicant received. It is implicit in the solicitor’s letter that the applicant received a settlement sum, but I do not accept that it was as much as $100,000. Apart from the solicitor’s letter, the applicant could have proved how much he received by producing his bank statement showing the deposit of the settlement sum. As the applicant did not produce documentary evidence specifying the settlement sum, or explain why he did not, and as he lied to the court about other matters, I do not accept that he received $100,000 from WorkCover and conclude that he lied about that issue.
The overall impression given by the applicant in the witness box was that he was a slippery character, who tried to be clever rather than truthful. I consider that he was not a credible witness.
I am also not persuaded that the applicant’s sister, Ms B, gave truthful evidence. Her handwritten draft affidavit was nothing like her affidavit as filed in these proceedings. The affidavit as filed appears to have been drafted by a solicitor to maximise the prospects of the applicant succeeding. That impression is reinforced by the fact that Ms B used almost identical wording in some parts of her affidavit to the wording used by Ms M and Mr W.
I am also not persuaded that Ms M gave truthful evidence. She used almost identical wording to the wording used in Ms B’s affidavit in some areas, as well as almost identical wording in some areas to the affidavit of Mr W, which was filed but not relied upon by the applicant.
On the other hand, the respondent presented fairly well in the witness box. She was straight forward, answered questions quickly and without equivocation, and made appropriate concessions.
Nevertheless, a significant weakness in the respondent’s case was that she said in an affidavit filed in the parenting proceedings that the applicant was her de facto partner. However, I found her explanation, that she was unrepresented and thought parents who were not married were de factos, to be plausible and persuasive. I also found plausible and persuasive her explanation for telling a police officer in December 2014 that she had been in a de facto relationship with the applicant, namely, that she did not know what the term meant. “De facto relationship” is obviously a legal term, which is difficult for family lawyers to apply, much less lay people.

Another difficulty with the respondent’s evidence was that she said in her parenting affidavit, which was sworn or affirmed on 22 March 2016, that she and the applicant separated in September 2014, though she now claims the relationship ended in June or September 2013. The respondent said that she now knows that the separation date was June or September 2013, because she sometimes went out with a particular friend at that time and she knew that she was single then.
This is not a particularly persuasive claim. Moreover, it is inconsistent with the respondent’s statement in her application for an intervention order made on 23 December 2014 that her relationship with the applicant ended about three months earlier. Even allowing for the fact that a police officer made that application on the respondent’s behalf, and that he may have misunderstood some of the details, I consider it to be much more likely, in view of all the evidence, that the parties did in fact end their relationship in about September 2014.
That timeframe makes sense of the Facebook messages between the applicant and the respondent in March and April 2014. The respondent’s explanation, for the text messages, that she sent them to the applicant to keep him away from her, was not particularly compelling.
Notwithstanding these issues, I found the respondent, overall, to be a credible witness.
I also found Ms P to be a credible witness. She was straightforward, and made appropriate concessions. There was an attempt to show that Ms P had used the same wording in some areas of her affidavit as the respondent. However, Ms P and the respondent were describing the same events, so it is not surprising that the words they used were somewhat similar. Their words were not as similar as the words used by Ms M, Ms B and Mr W.
All in all, I found the respondent and her witness to be vastly more credible than the applicant and his witnesses. Where the parties’ evidence differs, I prefer the evidence of the respondent and Ms P, except in relation to the date of the end of the relationship, which I find to be September 2014.

General findings

It was not disputed that the four houses that the respondent has successively owned were not owned jointly with the applicant, even though the applicant and the respondent were in some sort of relationship when the respondent acquired each of those houses.
The applicant did not claim to have contributed any money to the acquisition of any of the houses that the respondent successively owned. He did claim to have contributed $100,000 to household costs in 2007. However, I do not accept that claim. The applicant did not provide any evidence that he had actually received $100,000 from WorkCover. He provided only part of a letter which dealt with his WorkCover claim but not the part that said how much he received. I do not accept that the applicant received $100,000 from WorkCover, although I do accept that he received a smaller amount.
I do not accept that the applicant contributed any of that smaller amount to the respondent’s household expenses. The WorkCover settlement, on about 6 September 2007, coincided with the applicant renting his own premises, being the premises in (omitted). I infer that the applicant used his WorkCover settlement to establish his own household in (omitted) and later in (omitted).
The respondent explained her changing the collection method in respect of the applicant’s child support liability from private collection to departmental collection on the basis that the applicant sometimes asked her to register the liability for private collection and she simply complied with his requests. I accept that explanation. It strikes me as plausible in view of the respondent’s evidence that the applicant was controlling, she required the police to remove him from her house on two occasions and she was required to obtain a number of intervention orders against him. I have been unable to identify any correlation between the changes in the methods of collection and any of the other events in this case.
Because I found the respondent to be a far more credible witness than the applicant, I accept the respondent’s evidence that:
a)she allowed the applicant to stay at her place in (omitted) in late 2001 because he was living in a friend’s garage;
b)the applicant and respondent commenced a sexual relationship shortly after the applicant moved in;
c)after about two months, the applicant became aggressive, abusive and controlling and the respondent asked him to leave;
d)he refused and the respondent left instead;
e)she returned after a few days when the applicant was hospitalised after drinking to excess;
f)the applicant remained in the house with her for about another four months and he then lived elsewhere;
g)the applicant and respondent maintained an intermittent sexual relationship after the applicant moved out;
h)X was conceived in about (omitted) 2003;
i)the respondent allowed the applicant to live with her at (omitted) for about three months in 2003;
j)the applicant was removed from (omitted) by the police after the respondent called them;
k)the applicant damaged the respondent’s house and car in retaliation;
l)the applicant subsequently lived in (omitted), (omitted), and at the home of a friend’s mother in (omitted);
m)X was born on (omitted) 2004;
n)on 10 August 2004, the respondent applied for child support from the applicant and has maintained her registration for child support ever since;
o)on 7 October 2004, the respondent took out an intervention order against the applicant;
p)the applicant and respondent resumed their intermittent sexual relationship;
q)in about (omitted) 2006, Y was conceived, and he was born on (omitted) 2006;
r)studio photos were taken in 2007 or 2008 of the applicant, the respondent and the children, which the applicant paid for;
s)the respondent took out an intervention order against the applicant on 15 November 2007; and
t)except as mentioned above, the applicant and respondent did not live together between 2001 and late 2007.
It is clear, because the applicant eventually admitted it, that he was living separately from the respondent in (omitted) from late 2007 until late 2008 and then in (omitted) from late 2008 until late 2009.
The respondent conceded that she had stayed at the applicant’s home in (omitted) for a few days in February 2009 as a result of the Black Saturday bushfires. However, this circumstance does not mean that the applicant and respondent were living together at that time. There is obviously a difference between staying over because of a natural disaster and living together. In any event, this episode preceded 1 March 2009, which is the date on or after which the de facto relationship had to have broken down for this court to have jurisdiction.
The applicant claimed that while he lived in (omitted) and (omitted), the parties frequently stayed at each other’s houses. I do not accept that evidence, based on my general preference for the respondent’s evidence over the applicant’s. I accept the respondent’s evidence that she tried to get away from the applicant, and moved to Property C for that purpose, but the applicant soon found her and moved to (omitted), which was around the corner from the respondent’s home in Property C. This, in itself, was a controlling and unpleasant action.
Having said that, I accept that the applicant and respondent did resume having an intermittent sexual relationship while the applicant was living in (omitted) and (omitted).
The respondent conceded that the applicant had lived with her at Property A for six weeks in late 2011 after his lease finished at (omitted). I accept the respondent’s evidence that she allowed the applicant to stay at her house on the sofa for six weeks because he said he had lost his job and had nowhere to live. I prefer the respondent’s evidence to the applicant’s evidence on this and other points because I found the respondent to be vastly more credible overall than the applicant.
I accept the respondent’s evidence that:
a)the applicant and respondent continued to have an intermittent sexual relationship after the applicant moved out of the respondent’s home in Property A in late 2011;
b)the respondent obtained an intervention order against the applicant to protect her and the children on 15 December 2011;
c)the respondent was obliged to take out the intervention order on 15 December 2011 because the applicant would not leave her alone; and
d)the applicant has been charged with breaching intervention orders twice.
I accept the applicant’s concession that the police removed him from Property A on about 15 December 2011, and infer that he had been trying to stay there again. I accept that he then stayed at his nephew’s house, in (omitted). I accept that the applicant smashed A's PlayStation and the presents the respondent had bought A for Christmas.
Because the applicant was not a witness of truth, I do not accept his claim that, soon after being removed by the police from Property A, he moved back in, notwithstanding the intervention order. However, I do accept the respondent’s claim that the applicant and respondent maintained an intermittent sexual relationship thereafter, and that involved the applicant sometimes staying at the respondent’s place. This did not amount to the parties living together.
I accept the respondent’s concession that the parties and the three children had a holiday together in Queensland. Photographs taken during the holiday were date stamped 2013. The respondent claimed that the holiday occurred in 2012. I understand that date stamps on cameras can be altered. However, I do not accept the respondent’s claim that the holiday occurred in 2012. It simply strikes me as unlikely in all the circumstances of this case that the date stamp would be inaccurate.
In any event, I do not accept that the parties were living together during the holiday, although they may have stayed together, because the notion of living together requires much more than sharing accommodation while on a week’s holiday. People in a boyfriend girlfriend relationship can obviously go on holiday together without being in a de facto relationship. It is unusual but not unheard of for parents who are no longer in an intimate relationship to have a family holiday together with their children.
Because I do not accept the applicant to be a truthful witness, I do not accept that, in 2013, he used his nephew’s address at (omitted) purely as a mailing address while he lived with the respondent. On the contrary, I consider that the applicant used the respondent’s various addresses as mailing addresses because he did not have a permanent home, except for the 12 months that he lived in each of (omitted) and (omitted).
I accept that the applicant took the children to the football on 27 July 2014. This occurred before the end of the intimate partner relationship. In any event, it is the sort of thing any parent would do with his children, whether the parents were separated or not. It was not suggested that the respondent went to the football as well. The fact that A went to the football with the applicant and his siblings is not surprising. In fact, it would have been rude if A had not been invited.
I consider, based on all the evidence, that the parties ended their relationship, in the sense that they stopped having an intimate partner relationship, in September 2014. That coincides with the respondent’s statement in her parenting affidavit and in her application for an intervention order made on 23 December 2014. It also fits with the Facebook messages between the applicant and the respondent in March and April 2014.
I found the applicant’s claim that the relationship ended in November 2014 to be self-serving, and an attempt to avoid the need to apply for an extension of time. Ms M was not able to say how she learned that the relationship ended in November 2014.
I accept the respondent’s evidence that Mr R moved back into her house in December 2014. I also accept the respondent’s evidence, which is supported by documentation, that a police officer applied for an intervention order to protect the respondent and the three children from the applicant on 23 December 2014.
I accept the respondent’s evidence, and the applicant’s concession, that following the end of the relationship, the applicant told the respondent that he would pursue her for half of her house if she did not drop her claim for child support. Ultimately, the applicant sought orders that Property A be sold and that he receive only 40% of the proceeds.

Application of the law to the facts

As discussed above, the question for the court is whether the applicant and respondent had a relationship as a couple living together on a genuine domestic basis. I will consider firstly the matters set out in s.4AA(2) of the Act and then the other circumstances of the relationship.

a. the duration of the relationship

The applicant and the respondent were in an intermittent intimate relationship from late 2001 until September 2014. At times, the respondent attempted to flee from the applicant, but he located her, and the intermittent intimate relationship resumed.

b. the nature and extent of their common residence

The parties shared a common residence for three periods totalling less than one year over the sixteen years that they have known each other. Those periods were about six months from late 2001 until early 2002, when the parties lived together in (omitted), about three months in 2003 when the parties lived together in (omitted), and about six weeks in late 2011 when the parties lived together in Property A.
Each house that the parties lived in together was owned solely by the respondent. The respondent on two of those occasions permitted the applicant to stay with her because he would otherwise have been homeless, or staying with friends or relations. When the applicant got some money from a WorkCover settlement, he used it to establish a separate household at (omitted) and then (omitted).
When the applicant lived at the respondent’s home, it was sometimes on the basis that he would sleep on the sofa.

c. whether a sexual relationship exists

The parties were in an intermittent sexual relationship from 2001 until 2014, which resulted in them having two children together.

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

The applicant was sometimes supported by the respondent, was sometimes on WorkCover payments, and he sometimes worked. However, he often had too little money to accommodate himself, and stayed with the respondent, his nephew, B, or other friends and relations.
The applicant did not contribute any significant part of his lump sum WorkCover settlement for the benefit of the respondent, though he may have made some minor contributions from his wages and fortnightly WorkCover payments from time to time for the benefit of the respondent and the children, for example, by paying for studio photographs.
The parties did not have joint bank accounts or any joint assets. There was no suggestion that they had any shared financial goals. The respondent acquired four houses successively without any input from the applicant, whether financially or in terms of advice or physical assistance.
The applicant conceded that all of the bills were in the respondent’s sole name.

e. the ownership, use and acquisition of their property

The respondent was the sole owner of the four houses that she owned successively during the course of the relationship.
She acquired the first one through an inheritance and paid the mortgage without any contribution from the applicant. The subsequent houses were purchased by the respondent with her own funds and without any significant contribution from the applicant.
The applicant used the respondent’s houses for less than 12 months in total as his residence, and otherwise used the respondent’s houses as his mailing addresses. The respondent used her houses to accommodate herself and the children.

f. the degree of mutual commitment to a shared life

There was no mutual commitment to a shared life. The respondent from time to time attempted to flee from the applicant but he located her and their intermittent sexual relationship resumed. They rarely lived together.
There was no suggestion that the parties discussed building a life together, or decided to have children together. Rather, it seems that the respondent simply fell pregnant on two occasions.

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

The relationship was not registered under any prescribed law.

h. the care and support of children

The respondent primarily cared for the children of the relationship, although the applicant did get a tattoo of them. During the periods totalling less than one year when the parties lived together, the applicant assisted with the care of the children. He took them to the football on one occasion and went with them on a family holiday on one occasion. He paid for studio photographs of the whole family on one occasion.
There was no suggestion that the applicant took the children to school, or the doctor, attended parent teacher interviews, read them bedtime stories, took them to their sporting commitments, or bathed them.

the reputation and public aspects of the relationship

The parties socialised as a couple on occasion. This did not amount to any more than would be usual for two people in a boyfriend and girlfriend relationship.

j. other matters

The respondent obtained at least four intervention orders against the applicant, in 2004, 2007, 2011 and 2014. The respondent required the police to remove the applicant from her home on two occasions, in 2003 and 2011. I incorporate in this section the other findings made above.

Conclusion

The applicant said at numerous points that he and the respondent were together. However, there is a qualitative difference between being together as boyfriend and girlfriend and being together as de factos.
Taking into account all of the circumstances of the relationship as discussed above, on balance, I am not satisfied that the parties were ever in a de facto relationship. I consider that they had an intermittent relationship as boyfriend and girlfriend. They lived together for short periods, sometimes as an act of charity on the respondent’s part, and most recently for six weeks in late 2011. However, the overall circumstances of their relationship did not amount to a de facto relationship as defined in the Act.
More particularly, the parties had never been in a de facto relationship up until the point when the applicant established a separate household in (omitted) in late 2007. He maintained separate rental premises from the respondent until late 2009. The applicant and respondent maintained their intermittent boyfriend and girlfriend relationship during the period from late 2007 until late 2009 but were not living together and were not de factos in the period from late 2007 until late 2009.
Of course, it is only where a de facto relationship broke down after 1 March 2009 that this court has jurisdiction. In late 2011, the respondent permitted the applicant to live with her for six weeks, when he would otherwise have needed to stay with friends or relations or would have been homeless. During this six week period, and until September 2014, the applicant and respondent were not de factos, but were in an intermittent boyfriend and girlfriend type of relationship.
In view of these findings, it follows that the applicant was not in a position to have told the Child Support Agency that he had no child support liability because he was in a de facto relationship with the respondent and the respondent did not defraud the Commonwealth by not disclosing that she was in a de facto relationship with the applicant. In other words, the statements made by each party, expressly or impliedly, to the Commonwealth accurately reflected their status.

Further, in view of these findings, it is not necessary to consider when the de facto relationship ended, or whether to grant an extension of time.
The declaration sought by the respondent will be made. The application will be dismissed. The applicant will be ordered to remove the caveat over Property A. I will hear the parties on whether any other orders ought to be made.

I certify that the preceding one hundred and ninety one (191) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date: 11 December 2017