Wilde and Lewis - [2011] FMCAfam 991

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WILDE & LEWIS

[2011] FMCAfam 991

FAMILY LAW – De facto relationship – respondent argued no de facto relationship existed after 1999 – jurisdictional matter – finding of fact in favour of applicant to found the jurisdiction.

Family Law Act 1975 (Cth), ss.4AA, 90RD

Applicant:

MS WILDE

Respondent:

MR LEWIS

File Number:

MLC 2081 of 2011

Judgment of:

Hartnett FM

Hearing dates:

17 August, 1 September and 2 September 2011

Delivered at:

Melbourne

Delivered on:

7 October 2011

REPRESENTATION

Counsel for the Applicant:

Mr Cash

Solicitors for the Applicant:

Kelly & Chapman

Counsel for the Respondent:

Mr Eidelson

Solicitors for the Respondent:

Aaron Eidelson

IT IS DECLARED THAT:

Pursuant to ss.90RD and 4AA of the Family Law Act 1975 (Cth) a de facto relationship existed between the applicant and respondent during:
(a)the period from April 1995 until November 2009; and
(b)the period from July 1992 until April 1995 but not for the total duration of this period, and this being a matter to be further considered at trial.

IT IS ORDERED THAT:

Liberty be reserved to either party to apply at trial for any consequential order.

AND THE COURT NOTES THAT:

The parties are to attend a conciliation conference with a Registrar of the Court as ordered on 2 September 2011.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 2081 of 2011

MS WILDE

Applicant

And

MR LEWIS

Respondent

REASONS FOR JUDGMENT

These proceedings commenced on 11 March 2011 wherein the applicant sought property orders pursuant to s.90SM of the Family Law Act 1975 (Cth) (‘the Act’). In support of that application the applicant filed a financial statement sworn 9 March 2011 wherein she indicated her total average weekly income as a [occupation omitted] as being in the sum of $738 gross. In addition to that income the applicant receives rental investment income, a family tax benefit and rent assistance and child support of $85 each week received from the respondent for the support of the parties’ son, [X], who was born [in] 1995. The applicant also filed, at that time, an affidavit sworn by her on 9 March 2011. In these proceedings the applicant relies upon that evidence and further affidavits they being affidavits sworn by her on

7 April 2011, 3 May 2011, 11 August 2011 and 30 August 2011.

In addition, the applicant relies upon affidavits sworn by Ms C on

11 August 2011, Mr W on 10 August 2011, Ms V on 10 August 2011, Ms B on 11 August 2011, Ms M on 10 August 2011, Mr Z on

11 August 2011, Mr P on 11 August 2011, Mr O on 10 August 2011, Mr M on 10 August 2011 and Mrs W on 10 August 2011.
The need for the filing of a plethora of affidavits on the part of the applicant arose as a consequence of the final orders sought by the respondent in his response filed 21 April 2011. The respondent claimed that the Federal Magistrates Court did not have jurisdiction over the parties’ dispute given that the parties separated before the commencement of the de facto jurisdiction in this Court being 1 March 2009. Subsequently, the respondent filed an amended response on

20 June 2011 to seek parenting orders with respect to the parties’ son, [X]. [X] is now 16 years of age.
On 1 September 2011, the parties and [X] attended upon Ms D, family consultant for a report under s.11F of the Act. It was recommended that no family report be prepared and that [X] continue to live with his mother and see his father at his own discretion. In the event that did not result in adequate time being spent between [X] and his father then some consideration could be given by the Court to a time spent regime as set out in orders of the Court. That remains an outstanding issue. The issue considered by the Court in these reasons is whether the parties were in a de facto relationship after 1999 and in particular as at 1 March 2009.
The respondent relies upon a financial statement filed and sworn by him on 21 April 2011 and affidavits sworn by him on 21 April 2011,

19 June 2011, 14 August 2011 and 29 August 2011. Further, the respondent relies upon affidavits sworn by Mrs L on 29 August 2011, Mr K sworn 1 August 2011, and Ms E sworn 30 April 2011. The respondent’s financial statement deposed to a total average weekly income of $300 each week as [occupation omitted] and otherwise investment rental income of $240 each week and dividend payments of $20 each week. He claimed to make child support payments for the benefit of his son, [X], in the sum of $95 each week.
Statements of fact in these reasons are findings of fact on the balance of probabilities.

History

The respondent was born [in] 1966 and is now aged 45 years. The applicant was born [in] 1957 and she is now aged 54 years. The parties first met in July 1992. At the time, the respondent was living with his parents and the applicant was renting accommodation. The parties commenced to reside together in the applicant’s flat. There is dispute between the parties as to their precise living arrangements between 1992 and 1995 save there is agreement that for some part they cohabitated and that during this time the applicant became pregnant with the parties’ son, [X].
The respondent told his parents that the applicant was pregnant in February 1995, and in March 1995 the parties commenced to look for a home to buy in which to raise their child. The family home at

Property B was purchased in March 1995 for approximately $170,000 with the parties moving into the property on 1 April 1995 shortly prior to [X]’s birth. The applicant alleged that the respondent’s father told her that the respondent had inherited the moneys used for the purchase from his grandfather in Greece. The respondent alleged that a loan agreement was signed by he and his parents attesting to his parents advancing the totality of the purchase price to him by way of loan. Such alleged loan agreement was produced in evidence in these proceedings. It had never previously been sighted by the applicant nor had it ever been discussed. Nevertheless the applicant conceded that the total purchase price of the property in [B] was a contribution by the respondent’s family. The parties lived in this property until the applicant and the parties’ son, [X], left the home on 6 November 2009.
The respondent denies the applicant’s allegation that the parties ended their de facto relationship on 6 November 2009 and claims the de facto relationship ceased in or about mid-1999. He concedes that the applicant continued to reside at Property B until November 2009, and claims that he did not ask the applicant to leave the property as he did not wish to deny the mother of his child a place to live and he wished to spend time each day with [X].

Other witnesses

To assist in the determination of the cessation date of the de facto relationship the parties had before the Court other persons who gave sworn evidence. Each of the respondent’s witnesses was required for cross-examination. The applicant’s witnesses’ evidence was not challenged in every instance in what was a sensible approach to the litigation. I shall turn firstly to these witnesses on the respondent’s side. Ms E first met the respondent in February 2009. Her evidence was that the respondent had told her that he and the applicant still lived in the same house, but that they had separated some time before. Further, it was convenient for the parties to live at the same place because they both got to raise their son and be part of his daily life. Ms E claimed that in the time she had known the respondent he had lived a conspicuously single life. Her evidence was that he had dated different women and that although she had not been in a relationship with the respondent, she spent time with him socially from April 2009 at various locations and bars in the evening hours on two or possibly three nights a week. She claimed that the respondent lived, spoke and behaved as a single man. Despite this, she did not once attend upon the family home in [B] whilst Ms Wilde was in occupation. Following

Ms Wilde and [X] physically leaving the property, she has been to the [B] residence up to twenty times. Ms E and the respondent remain friends. The only knowledge she has of the applicant and indeed, the relationship between the applicant and respondent, continues to be that provided to her by the respondent.
Mr K gave evidence that he first met the respondent in early 2007 when the respondent was dating a young woman who worked in his [business omitted]. Subsequently Mr K and the respondent became friends and Mr K observed that the respondent enjoyed the company of women and led the life of a single man. He only ever heard the respondent mention the applicant as the mother of his son. His evidence was that he never heard the respondent mention the applicant in terms of affection or in any way other than as [X]’s mother. However, like Ms E, he did not meet Ms Wilde. He saw her at the respondent’s father’s funeral earlier in this year when the respondent pointed her out to him. He has never spoken to the applicant. His evidence was that he did not know that the respondent was living with a woman, as the respondent never mentioned it. He discovered that fact in 2009 when the respondent told him that the applicant had moved out of his house. Whilst Ms Wilde resided in the home, and between late 2007 and 2009, Mr K never attended at the family home. He has, since the physical separation of the parties, attended at the home and remains a friend of the respondent. Again, his evidence is based solely on the history as provided to him by the respondent and upon his observation of the respondent’s activities in the absence of the applicant.
The respondent also had his mother provide evidence in the proceedings. She is aged 79 years
and is also the mother of the respondent’s older brother, [name omitted], who suffers schizophrenia and requires her constant care. Her husband died earlier this year.

Mrs L confirmed in her evidence that she and her husband lent the respondent $170,000 to buy the Property B property, which included the costs of purchase and other associated costs. Her evidence was that she is extremely concerned that the applicant is making a claim with respect to the Property B property. In paragraph 8 of her affidavit sworn 29 August 2011, she said in respect of herself and her now deceased husband:
“It was always our belief and agreement that Property B was a security for our retirement in old age.”
Her evidence as to the relationship between the applicant and respondent was that she and her husband were aware that they were not in love, and she said:
“They were different in every way, and the applicant was much older than the respondent. He was always interested in younger women. If they were in love or compatible in any way, they would have married, either before [X] was born or soon after. It came as no surprise when the applicant confided in me several years ago that she and the respondent were no longer sleeping together and hadn’t been for some time. I recall this conversation specifically.”
The applicant denies confiding in the respondent’s mother as described and denies that she and the husband ceased their sexual relationship before approximately November 2009. I prefer the evidence of the applicant to that of the husband’s mother in this regard. Otherwise it is clear the husband’s mother was not able to attest to the non-existence of a de facto relationship between the parties. She provided evidence that the parties resided together (which is not disputed by the respondent) and that occasionally [X] and his parents would visit her but that more usually [X] would visit her in the company of just his father. No discussion was ever had with her and/or her deceased husband to her knowledge and the respondent and applicant or the respondent solely that the parties had separated and were residing together merely for the sake of convenience or pursuant to some other agreed arrangement.
The affidavits filed by the applicant in the proceedings from various third parties provided evidence as to the presentation to others outside the family that the applicant, respondent and their son, [X], were a family unit. Mr W, in his affidavit sworn 10 August 2011, gave evidence that his eldest son and the parties’ son, [X], were the same age. The children went to the same kindergarten, primary school, and now continue to play in the same [sport omitted] team. Mr W and his family have been to many functions where they have met, seen and interacted with the respondent, applicant and [X] as family, and he deposed to having a similar circle of friends and sporting acquaintances. His evidence was further, that the applicant, respondent and their son came to his place for Christmas functions several times over the years, and in 2004 the families met up whilst holidaying in Queensland at [M]. His evidence was that the applicant and respondent were looking at investment properties and did in fact later go on to purchase a property there together. That evidence was corroborated by his wife Ms V. The parties’ own evidence is that this property was purchased in joint names and that both were liable in respect to the mortgage repayments although the respondent in fact makes such repayments.
Ms B swore in her affidavit of 11 August 2011 that she had known the Lewis-Wilde family unit since late 2005. Her son [name omitted] and [X] began playing [sport omitted] together and formed a very good friendship. In paragraph 2 of her affidavit Ms B said as follows:
“During this time to the best of my knowledge, [Ms Wilde], [Mr Lewis] and [X] were living as a family unit. They attended [omitted] games together on a weekly basis, as well as social events organised by the [omitted] club and other social events organised by families in our [omitted] team. At this time [Ms Wilde], [Mr Lewis] and [X] were all living together in Property B and our son stayed at their place quite regularly. I believed that they were a family at that time.”
Mr M and his wife Ms M deposed to the parties attending their wedding as a couple in 2006. Their evidence was also that they had, over many years, attended school and [sport omitted] functions in the company of the applicant and respondent, who attended as a couple.
Mr O, the principal of the [B] Primary School, swore on 10 August 2011 that he had contact with the applicant and respondent during the period from 2001 to 2007, during which time their son [X] attended the [B] Primary School. He said in paragraphs 3 and 4 of his affidavit, which was unchallenged:
“3. During this time I had a range of involvement with both parents as they attended events such as –
a. Parent-teacher nights
b. Working bees
c. End of year concerts
d. Inter-school sport matches, eg. [sport omitted].
4. To my knowledge they attended these events as a regular family unit and both parents took an active role supporting their child.”
Mrs W swore an affidavit on 10 August 2011 and she was cross-examined in the proceedings. She has known the applicant since 1978, being a time shortly after she commenced dating the applicant’s brother. They became good friends and were to become sisters-in-law in 1985. Her evidence was that during the seventeen-year relationship between the parties she observed them on numerous occasions within their home and at family functions, and claimed there was never any indication that they not living as a family unit. She said in paragraph 4 of her affidavit:
“As a family member and one of [Ms Wilde’s] closest friends she has confided in me over the years. She has never indicated to me that her relationship with Mr Lewis had ended. It was not until shortly before leaving the family home in November 2009 that she terminated the relationship having confided in me that she intended to do so.”
It was put to Mrs W in cross-examination for the respondent that the parties had had a troubled relationship for a long period of time. Mrs W agreed that there was trouble in the relationship and that there had been huge arguments of which the applicant had told her. She agreed that others could not know what was behind a family unit’s ‘closed doors’, but her evidence was that to all appearances the applicant, respondent and their son always lived as a family unit and in her discussions with the applicant, the applicant always spoke about the respondent in the same way as Mrs W spoke about her own family and her own husband.
Mrs W’s further evidence was that the applicant always spoke of the respondent as her partner and that when she did discuss troubles that she had with him, it was in the same way that Mrs W would discuss with the applicant any little arguments or things that went on with her own husband. She said, ‘We confided in each other.’ In addition to confiding in Mrs W at times that she had had an argument with the respondent, the applicant also indicated when the parties had made up. The applicant described to her friend over a very long period of time the ups and downs of a usual relationship with that relationship being observed over the same long period of time by Mrs W.
The evidence put before the Court by the respondent as to the parties’ presentation to the world at large was in the form of two persons whom had never spoken with the applicant, had not seen her, and had not entered the family home during the period that she resided there. At no time did the respondent suggest that these friends spend any time at his home. Such an invitation was only forthcoming after the applicant’s departure.
By contrast, the applicant put before the Court affidavit evidence from third parties who observed the applicant and respondent and their son over many years (and including before and after 1999) and observed them to be a family unit by their actions, the way they spoke, and the activities they engaged in. Some of these persons were visitors in the home, all spoke with both of the parties, and all were engaged with the parties’ son and in the context of family activities. Their evidence was persuasive and compelling.

The parties’ evidence

The parties agreed that their relationship was at times troubled, and that they had many arguments. The respondent claimed that the applicant made no contribution to the family home, save to pay one half of the daily expenses and other like bills, although he claimed she made no contribution to the payment of rates and the other outgoings of the property, which were funded solely by him. The parties agreed that they kept separate bank accounts save in relation to the property they jointly purchased in [M] in Queensland. The applicant claimed that when the parties moved into the property at [B], it was very old, and that she stripped wallpaper, painted, cleaned, cooked, did the gardening, mowed the lawns and planted a vegetable patch. She claimed she cooked for the family, planted in the front yard a number of flowers and plants, planted a lemon tree in the backyard and generally maintained the property. The respondent denied these claims of the applicant. In fact, he made no concession as to any contribution to the family home, direct or indirect by the applicant. I reject the respondent’s evidence as to the applicant not cooking. The balance of the disputed facts here can be left to trial. The respondent on his own evidence was not home many evenings. He was either out with other women or three or four nights a week [occupation omitted]. Perhaps some of those evenings overlapped. However, it was the applicant who was at home providing for [X]’s daily needs including his dinner and doing same in the absence of the respondent.

Although the husband claimed to be dating other women and in a serious relationship with more than one, no corroborative evidence was put before the Court by him as to the existence of any of these relationships. I accept his evidence that he was dating other women during the time the parties resided in the same home, but also accept the evidence of the applicant that she did not know of the activities of the respondent although she had commenced to suspect him of seeing other women. The respondent’s own evidence is that he did not discuss such activities with the applicant, because he feared her response and it was none of her business. He did not at any time bring any of the women with whom he was allegedly having relationships, or friends to whom he claimed to be a single man, into the family home whilst

Ms Wilde resided there. Despite this, his evidence was that she knew of his other relationships. His failure to lead a separated life in the bringing into his home of his ‘serious’ girlfriends or indeed any friends was, he said, because the applicant was not accepting of the end of their relationship and so being in his home with a girlfriend ‘would not be conducive to having a good time’. He said as to the relationships which he had that Ms Wilde would ask him about what he was doing. In fact, he said:
“She would interrogate me. She would harass me. Maybe she was in denial – I don’t know – but it was quite clear that the relationship was over, and she couldn’t come to grips with it.”
When he was out, he could not recall whether he often refused to answer the telephone because he realised that it was the applicant ringing him. The respondent’s evidence as to his having conveyed the cessation of the relationship to the applicant was implausible and I do not accept it.
The respondent claimed the parties did not sleep in the same bedroom for at least ten years prior to the applicant’s departure from the home. The applicant claimed that to be false, and said the parties only slept in separate bedrooms in the last twelve months before her departure from the home, and at that time, only because the respondent was snoring. The respondent claimed the parties had not had a sexual relationship for some ten years. The applicant’s evidence was that such relationship continued from the commencement of their cohabitation until October 2009. I prefer the evidence of the applicant to that of the respondent.
Throughout the period from 1999 to 2009, the applicant was in receipt of a Family Tax Benefit. That Family Tax Benefit was calculated based on the income of all members of the family, which, in respect of the claiming of this benefit, was the applicant and respondent. The income was derived from each party’s annual income tax returns. The applicant’s Family Tax Benefit was estimated on her actual income and the respondent’s estimated income, due to the respondent’s failure to lodge his income taxation returns for a number of years until very recently. Following lodgement by the respondent of his recent taxation returns, the applicant’s Family Tax Benefit has now been recalculated on the actual income of the family comprising herself and the respondent.
The applicant produced her taxation returns for the financial years ended 30 June 2003 to 30 June 2010. Those returns from 30 June 2003 to 30 June 2007 were prepared during the time that the parties lived in the family home. In each of those returns, the applicant claimed the respondent to be her de facto spouse. The respondent made no such claim with respect to the applicant in the taxation returns recently prepared by him, and prepared during the currency of the dispute between the parties. The respondent was requested to produce his taxation returns for the period from 1999 to 2005, but failed to do so. The Court can only infer that his failure to produce such documents was because the taxation returns would not have provided evidence supportive of his claims. During that period of time the parties engaged the same accountant to prepare their taxation returns, that accountant noting Mr Lewis as the de facto spouse of Ms Wilde in

Ms Wilde’s returns, and Mr Lewis’s returns not being produced to the Court.
The parties agreed that the respondent gave gifts to the applicant on her birthday and at Christmas time, but the respondent claims that although he paid for such gifts, he did not actually present them to the applicant, but rather, bought such presents for his son to give to his mother. He claimed them to be gifts not from him, but rather from the parties’ son [X], to his mother. The respondent admitted that he gave a diamond ring to the applicant in May 2009, but states that the gift was from his son, and not evidence of any affection of his for the mother. Indeed, his evidence was that he obtained the ring from a pawn broker, and that although he paid for it, it was not overly expensive. He gave the ring to his son to give to his mother, as he did not want his son to think he was ‘a louse’ and his mother to go empty handed. The respondent’s evidence that he did not give such a gift to the applicant is difficult to accept and again implausible. The applicant’s evidence that it was presented to her by the respondent as a gift from him is evidence I accept. He had not previously presented her with a diamond ring. He did so as a token of affection.
In January 2009, the applicant, respondent and their son spent over a week on holiday in [omitted]. This was not an unusual holiday. They often holidayed together to have quality family time. In January 2005, they had gone to [omitted] for a weekend, where they all had dinner together at a restaurant each night and went sightseeing during the day. In July and September of 2009, the respondent, applicant and their son spent a long weekend in the applicant’s brother’s [omitted] holiday home. The applicant claims that the parties slept in the same bed on all of these holidays, and the respondent was unable to deny same.
In late October 2009, on the evidence of the applicant, the respondent handed to the applicant three drafts of a handwritten letter he had written before their final separation, wherein he talks of the breakdown of their relationship and his regret in relation to much that follows as a consequence. That communication does not indicate the cessation of the relationship some decade earlier but the respondent claims the correspondence to have been written much earlier in time (and prior to 1999) than claimed by the applicant and to have been effectively stolen by the applicant and then retained by her. Again taking into account the totality of the facts and circumstances in this matter, I prefer the evidence of the applicant to that of the respondent who was often not a truthful witness.

The law

The definition of de facto relationship in s.4AA of the Act provides as follows:
“Meaning of de facto relationship
(1)    A person is in a de facto relationship with another person if:
(a)    the persons are not legally married to each other; and
(b)the persons are not related by family (see subsection (6)); and
(c)having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has effect subject to subsection (5).”
Working out if persons have a relationship as a couple
(2)    Those circumstances may include any or all of the following:
(a)the duration of the relationship;
(b)the nature and extent of their common residence;
(c)whether a sexual relationship exists;
(d)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e)the ownership, use and acquisition of their property;
(f)the degree of mutual commitment to a shared life;
(g)whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h)the care and support of children;
(i)the reputation and public aspects of the relationship.
(3)    No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4)    A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any mater, 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.
When 2 persons are related by family
(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.”
The making of a declaration pursuant to s.90RD of the Act is consequent upon the Court determining that as a matter of fact, a de facto relationship exists. S.90RD is as follows:
“90RD Declarations about existence of de facto relationships
(1) If:
(a)an application is made for an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL; and
(b)a claim is made, in support of the application, that a de facto relationship existed between the applicant and another person;
the court may, for the purposes of those proceedings (the primary proceedings), declare that a de facto relationship existed, or never existed, between those 2 persons.
(2) A declaration under subsection (1) of the existence of a de facto relationship may also declare any or all of the following:
(a)the period, or periods, of the de facto relationship for the purposes of paragraph 90SB(a);
(b)whether there is a child of the de facto relationship;
(c)whether one of the parties to the de facto relationship made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c);
(d)when the de facto relationship ended;
(e)where each of the parties to the de facto relationship was ordinarily resident during the de facto relationship
Note: For child of a de facto relationship, see section 90RB.”
In this matter, the applicant and respondent lived together as a couple in the same dwelling from April 1995 until November 2009. They both considered the house in [B] in which they resided with their son as their home. The applicant left the home only when she perceived the relationship to be at an end. Their sexual relationship survived that period of time (until October 2009) contrary to the evidence of the respondent. They equally paid the household expenses and were both engaged, oftentimes jointly, in the care of their son. They presented to those other persons and family members with whom they and their son associated as a family unit engaged in family activities. They fought and at times had a dysfunctional relationship. The respondent engaged in relationships with other women about which he did not tell the applicant and nor did he introduce these women to his son or invite them to his home. The parties merged their lives to nurture and support their son, to maintain and improve the house in which they lived, to purchase an investment property in Queensland, to run a household and earn income to support that household. That the respondent had less of a mutual commitment to a shared life in his pursuit of other relationships outside the home does not determine that no de facto relationship existed. The respondent’s case that the de facto relationship ceased to exist in 1999 is not supported by any change in the living together arrangements of the couple including the care of their son save his evidence that they ceased to share a bedroom and have a sexual relationship (such evidence I have rejected) and that he sought out the company of other women.
I accept the truthfulness of the applicant supported as it is by witnesses cross-examined and not (whose evidence was unchallenged), who knew the family unit, mixed with the family over time and observed the respondent to be a part of a couple living with the applicant and their son on a genuine domestic basis. This is how they presented in public to those who knew them both. This is how the applicant viewed her relationship and she conveyed, until just prior to separation, a commitment to that relationship despite its frustrations, both publicly to her family, friends and those in the community with whom they engaged and privately, to the respondent. The respondent agreed he did not broach the topic of other women with the applicant because that would upset her. He did not intimate to his mother or his son that he was separated from the applicant, and had been for a decade.
The onus of proving that a de facto relationship existed on 1 March 2009 falls to the applicant. On the balance of probabilities, I find the applicant has satisfied that onus of proof.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Date: 7 October 2011