Yeatman and McKeown

FAMILY COURT OF AUSTRALIA

YEATMAN & MCKEOWN

[2017] FamCA 736

FAMILY LAW – DE FACTO RELATIONSHIP – Where the applicant seeks a declaration that she and the respondent were in a de facto relationship for a period of about five years – Where the respondent seeks that the application for a declaration be dismissed – Where the determinative factors are the nature and extent of the parties living together under the one roof and the lack of a genuine commitment by the respondent to a shared life – Where it is found that the parties were in a de facto relationship for an insignificantly short period of time when they lived together – Where the application is dismissed.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Jones v Dunkel (1959) 101 CLR 298

APPLICANT:

Ms Yeatman

RESPONDENT:

Mr McKeown

FILE NUMBER:

SYC

3431

2015

DATE DELIVERED:

20 September 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

12 December 2016;
14 – 16 December 2016; 20 December 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Livingstone

SOLICITOR FOR THE APPLICANT:

Gentles Family Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Christie

SOLICITOR FOR THE RESPONDENT:

Barkus Doolan

Orders

The Initiating Application filed 28 May 2015 for a declaration pursuant to s 90RD Family Law Act 1975 (Cth) that the applicant and the respondent were in a de facto relationship for a period commencing 5 January 2009 and concluding on 28 July 2014 is dismissed.
The Initiating Application filed 28 May 2015 is otherwise removed from the active pending cases list.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: SYC 3431 of 2015

Ms Yeatman

Applicant

And

Mr McKeown

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

The applicant seeks a declaration that she and the respondent were in a de facto relationship for the period 5 January 2009 to 28 July 2014, with a short break in 2013. The respondent seeks that the application for a declaration be dismissed.

SHORT HISTORY

The respondent was born on in 1965 and is currently 51 years of age. At all relevant times the respondent retained a residence at Suburb B (“the Suburb B property”).
The applicant was born in 1971 and is currently 46 years of age. At all relevant times the applicant retained a residence at Suburb C (“the Suburb C property”).
The applicant claims that the parties were in a de facto relationship between 5 January 2009 and 28 July 2014, with one small break from about February to April 2013. The applicant says that she and her two children, D and E lived with the respondent and his daughter, F, at the Suburb B property from December 2012 to January 2014.
The respondent says that he was never in a de facto relationship with the applicant. The respondent admits that he had a close personal relationship with the applicant during the following periods:
5.1.January 2009 to the end of June or early July 2009;
5.2.December 2009 to March 2010;
5.3.June 2010 to July 2010;
5.4.December 2010 to April 2011;
5.5.December 2011 to January 2012.

CREDIT

The applicant and the respondent gave versions of their relationship which differed significantly. Each party’s credit was damaged during cross examination.

The Applicant

In her Initiating Application the applicant stated that she and the respondent had commenced to live together on 5 January 2009. Without being shown that document, the applicant was asked when she and the respondent commenced cohabitation to which she responded “2012”. The applicant said that she had put the date that the parties commenced a relationship as opposed to when they commenced living together. She agreed that that statement in her Application would have misled the court.
The applicant denied that she had ever stated that the respondent had never looked after her children whilst she had been away working internationally. The applicant was then taken to paragraph [38] of her affidavit of 28 May 2015 which is in the following terms:
38. During the relationship [the respondent] never looked after my children on his own. I had to ask my mother or their father to care for them.
When confronted with that passage the applicant said that what she had said at paragraph [38] was a mistake and that the respondent had looked after her children on his own when the applicant was at work. However, she added that she did often have to ask her mother or her children’s father to care for them when she was away because she and the respondent often went away together.
The applicant’s evidence about whether or not she received supplementary income whilst she was working was unimpressive. Having denied that she in any way advertised her interest in doing so, she did concede she had business cards made up and prepared vouchers for friends.
The applicant had filed documents with Centrelink in which she had made assertions about whether or not she was in a de facto relationship. At paragraph [10] of her affidavit filed 31 August 2015 the applicant states that she applied for Centrelink benefits as a single mother in March 2009. She annexes a copy of that application to her affidavit. On page three of that document the applicant has written that she had known the respondent for a period of three years which was an incorrect statement. In that form the applicant has also stated that her permanent address was the Suburb C property and that her current marital status is “Separated (including de facto)”. In answer to question 16, she states that there is no other person of the opposite sex regularly staying at her home. At question 33 the applicant declares that what she said in the document is correct and that she understood that giving false or misleading information was a serious offence. Notwithstanding the fact that, relying upon s 128 of the Evidence Act 1995 (Cth), the applicant chose to not respond to questions about what she had written in the document (seemingly on the basis that she now wished to give different evidence) I accept that what was written in the document at the time was fundamentally correct and that is, that the applicant at that time was living with her children at the Suburb C property and had only just started a relationship with the respondent which certainly was not a de facto relationship at that time.
The applicant was asked questions about paragraph [43] of her affidavit filed 25 May 2015 (Exhibit 6). In that paragraph the applicant says, “[the respondent] and F [the respondent’s daughter] lived in my home in Suburb C for a period of time in on or about 2009 or 2010 for several months”. The applicant had great difficulty explaining what that sentence meant and her explanations did not reflect well on her credit. At first the applicant said she had aggregated the “several months” over the two years. She then changed that to say that several months referred to a period of several months some time in that two year period where the respondent and his daughter lived at the Suburb C property on occasions (which she had previously said was about once a month). The applicant then said that the word “lived” should read “visited”.
Importantly the applicant gave inconsistent sworn evidence as to when she and her children lived at the Suburb B property.
The applicant was asked why her mother was not on affidavit in this case where there were a number of disputed areas of fact in respect of which her mother could give probative evidence. The applicant asserted that her mother did not want to get involved because she had worked for the respondent and had been paid cash. That explanation is somewhat unconvincing. I note that ultimately counsel for the respondent made no Jones v Dunkel (1959) 101 CLR 298 submission.

The Respondent

As the chronology below demonstrates, the respondent’s evidence as to when he was and was not in a close personal relationship with the applicant sits very uncomfortably with the objective evidence of when they had trips and holidays away together. At times his evidence was unimpressive. For example, he gave a flippant initial response to questions about him writing on a hospital form in August 2012 that he was the applicant’s de facto partner and then gave subsequent inconsistent answers when cross examined about this topic.
The evidence the respondent gave about the overseas trip in November 2013 was disingenuous.
The respondent did not tell the truth about losing his passport after May 2016 and requesting his current partner or girlfriend, Ms G, to look for it (discussed below).
I do not accept the respondent was being truthful in his sworn evidence when he asserted that things he told the police on 28 July 2014 were not true.
I otherwise found unreliable parts of the respondent’s evidence which I do not intend to detail, as the respondent agreed he had some difficulties with his memory.

Comparing each party’s credit

I am unable to make findings based upon any general assessment that one parties’ credit should be preferred over the other.

Other Witnesses

There were a large number of witnesses called for each party. I formed the view that each was trying to provide me with their genuine recollection.
The respondent’s sister, Ms H, initially denied that she had gone on the respondent’s boat with the applicant. She was then shown a photo of herself on the boat with the applicant and said she had not been able to recall the applicant was there when she had been.
Mr L, the respondent’s nephew, was adamant that the applicant did not attend his grandfather’s funeral in 2010 which is incorrect.
A whole host of questions were put to the respondent’s witnesses by counsel for the applicant. These questions concerned particular details of those witnesses’ lives in order to seemingly corroborate the proposition that the applicant had spoken to the witness at the respondent’s residence. Some of the propositions put were agreed with and some of them were not. The witnesses on the whole could not recall telling the applicant such details. The fact that a proposition was agreed with does not mean that it was told to the applicant by that particular witness and I draw no conclusion about the source of the instruction which enabled the framing of those questions.

CHRONOLOGY

The respondent was born in 1965 and is currently 51 years of age.
The applicant was born in 1971 and is currently 46 years of age.
Between 1998 and 2010 the respondent’s father lived in an apartment below the respondent’s home in the Suburb B property.
The first child of the applicant’s former marriage, D, was born in 2002.
The child of the respondent’s former de facto relationship, F, was born in 2002.
The second child of the applicant’s former marriage, E, was born in 2004.
In 2008 the applicant commenced working part time at Company J.
Between February and December 2008 the respondent’s nephew, Mr L, resided with him at the Suburb B property.
The parties commenced a relationship in January 2009.
The applicant asserts that in January/February 2009 she was given a shelf in the respondent’s house for her personal belongings. The respondent denies this assertion.
In about January 2009 the applicant entered the respondent’s name in her Company J records as her next of kin.
Between February and November 2009 the respondent’s niece, Ms K, resided with him at the Suburb B property.
The applicant asserts in February 2009 she came up with the name “M” for the respondent after he invited her to name his business. The respondent denies this. The “M” business started in about February/March 2009.
The parties celebrated Valentine’s Day together in February 2009.
From 7 to 11 or 13 March 2009 the parties travelled to the USA. The applicant says the respondent met her father during this trip.
On 15 and 16 March 2009 the respondent’s sister stayed at the Suburb B property.
In April 2009 the parties and their children travelled to N Town. The applicant says it was for 14 days. The respondent says it was for two days.
In May or June 2009 the respondent listed the applicant as his “girlfriend” on his HCF policy. At about this time the respondent was named on the applicant’s Company J staff travel as her companion.
From 5 to 6 or 9 June 2009 the parties travelled to New Zealand.
The respondent says the parties ceased their relationship at the end of June or the beginning of July 2009 and did not resume it until December 2009. This position is inconsistent with them travelling together and other activities in that period.
From 31 July 2009 to 2 August 2009 the parties travelled to Melbourne.
From 15 August 2009 to 17 August 2009 the parties travelled to Asia.
In mid-2009 the applicant asserts that the respondent arranged for them to attend upon his bank manager to address her finances (discussed below).
In mid to late 2009 the applicant says that she had a miscarriage (discussed below).
In 2009 the respondent’s niece, Ms K, celebrated her 21^st birthday in Sydney. The applicant attended and met the respondent’s sister, Ms H, his nephew, Mr L, and his niece, Ms K.
From 8 to 12 September 2009 the parties travelled to Perth and Asia.
In October 2009 the respondent says the applicant approached him and asked if she would work “some hours” in the M business so that she could earn some additional money. The respondent agreed.
On 5 October 2009 the applicant says that the respondent took her to meet his accountant, Mr O (discussed below).
On 10 and 11 October 2009 the applicant says that she cared for the respondent’s child, F, while the respondent went to court with F’s mother about parenting issues. The respondent denies this occurred.
From 21 to 23 October 2009 the parties travelled overseas.
In November 2009 the applicant asserts that the parties started another business P. She says that she assisted in its preparation. From late 2009 to the end of 2012 she says she worked at Business P.
The respondent says the parties resumed their relationship in December 2009.
The parties and their children celebrated Christmas together in 2009 along with the applicant’s mother, stepfather, grandmother, brother and his girlfriend, Ms Q.
From 29 December 2009 to 7 January 2010 the parties and their children travelled to the US.
In February 2010 the applicant attended the respondent’s father’s funeral.
In February 2010 Ms R leased part of the Suburb B property.
The respondent says the parties separated in March 2010.
In June 2010 the respondent wrote the applicant a poem entitled “The Luv Story” (discussed below).
The respondent says the parties resumed their relationship in June 2010.
From June 2011 to 22 September 2011 the respondent’s sister, Ms H, stayed in a rental property in Sydney.
From 5 to 7 July 2010 the parties travelled to South America.
On 10 July the parties and their children travelled to S Town for no more than eight days.
The respondent says the parties ceased a relationship in July 2010 but that is inconsistent with them travelling together in August 2010.
From 8 August 2010 to 9 August 2010 the parties travelled to Melbourne.
On 30 August 2010 the parties travelled to Asia for no more than four days.
The respondent says the parties resumed their relationship in December 2010.
From 1 to 4 January 2011 the parties travelled to the US. The applicant says the parties stayed with her father during this trip.
On 11 January 2011 the applicant says but the respondent denies that the parties and their children travelled overseas for 10 days. I am unable to make a finding as to which version is accurate based upon any travel document.
On 23 January 2011 the parties and their children travelled to Asia for five days.
On 18 February 2011 the respondent travelled overseas for no more than four days.
The respondent says the parties ceased their relationship in April 2011 and it did not resume until December 2011. Again, this position is inconsistent with the parties travelling together in that period.
On 12 April 2011 the parties travelled to Asia and the UK for six days.
On 20 June 2011 the applicant says that the parties travelled to Queensland for five days. This is not agreed to by the respondent. Again, there is no travel document that might resolve that disagreement.
On 27 July 2011 the applicant attended upon a women’s refuge (discussed below).
In 2011 the applicant travelled to Asia to celebrate her 40^th birthday. Notwithstanding the respondent’s case that the parties were not in a relationship at the time, the respondent and his children attended and the parties and their three children all stayed together in their own villa on the beach (discussed below).
On 3 October 2011 the parties and their children travelled to S Town for no more than six days.
On 19 October 2011 the parties travelled overseas for no more than four days.
From 17 to 22 October 2011 the respondent’s sister stayed with the respondent at the Suburb B property.
From 28 October 2011 to 31 October 2011 the parties travelled to Asia.
From 21 November 2011 to 4 December 2011 the respondent’s sister stayed with the respondent at the Suburb B property.
The respondent says the parties resumed their relationship in December 2011.
In December 2011 the respondent prepared a speech in relation to proceedings between the applicant and the applicant’s former husband.
From 18 to 22 December 2011 the respondent’s sister stayed with the respondent at the Suburb B property.
The respondent says the parties’ relationship finally ended in January 2012. That position is not consistent with the parties together on subsequent occasions (as detailed below).
From 4 to 26 February 2012 the respondent’s sister stayed with the respondent at the Suburb B property.
The applicant says the parties celebrated Valentine’s Day together in 2012.
In about March 2012 the respondent says he closed Business P and kept it closed most of the time, with his sister occasionally opening it.
From 3 to 11 March 2012 the respondent’s sister stayed with the respondent at the Suburb B property.
From 13 March 2012 to 19 July 2012 the respondent’s sister stayed with the respondent at the Suburb B property.
In April 2012 the applicant says the respondent took her to a Prince Concert and she stayed at his house afterwards. The respondent denies this.
The applicant says that she ceased to receive single parent benefits from Centrelink in July 2012.
From 5 to 7 July 2012 the parties travelled to Queensland.
From 31 July 2012 to 2 August 2012 the respondent’s sister stayed with the respondent at the Suburb B property.
From 3 to 5 August 2012 the parties travelled to Melbourne.
On 12 August 2012 the applicant attended Suburb T Hospital (discussed below). She says that she had had another miscarriage.
From 14 to 16 August 2012 the respondent’s sister stayed with the respondent at the Suburb B property.
From 22 September to 7 October 2012 the respondent’s niece, Ms K, lived with the respondent at the Suburb B property.
From 13 to 29 September 2012 the respondent’s sister stayed with the respondent at the Suburb B property.
In October 2012 the parties and their children travelled to Queensland. The applicant says it was for 10 days. The respondent says it was for three days.
From 3 to 4 October 2012 the respondent’s sister stayed with the respondent at the Suburb B property.
The respondent met Ms G, his current partner or girlfriend, on 26 October 2012.

From 31 October 2012 to 4 November 2012 the respondent’s sister stayed with the respondent at the Suburb B property.
From 6 to 9 November 2012 the respondent’s sister stayed with the respondent at the Suburb B property.
The applicant says that she and her children moved in with the respondent at the Suburb B property in December 2012. The respondent disputes this.
In late 2012 an international student resided at the Suburb C property.
From 4 to 7 November 2012 the parties travelled overseas. The applicant says the parties stayed together in her staff accommodation for one night but ended up staying together at a hotel after the respondent was not happy with the staff accommodation. The respondent denies that they sourced the accommodation together, saying he stayed at the Sheraton.
In December 2012 the applicant says the respondent told her that he didn’t want her to work at Business P anymore so that he could spend more time with her.
From 12 to 13 December 2012 the respondent’s sister stayed with the respondent at the Suburb B property.
From 17 to 19 December 2012 the respondent’s sister stayed with the respondent at the Suburb B property.
From 27 December 2012 to 5 January 2013 the parties travelled overseas.
In the 2012/2013 summer school holidays, the respondent says he took F and a friend surfing about once or twice a week and on about four occasions, Ms G also attended.
When the applicant was returning to Australia from Country II in January 2013, she nominated the Suburb C property on her incoming passenger card as her residential address in Sydney and nominated her mother as her emergency contact person.
From 7 to 19 January 2013 the parties and their children travelled to the US.
The respondent and Ms G assert that in early 2013 the applicant witnessed them holding hands and was aware of their relationship. The applicant says she did not find out that the respondent was having a relationship with Ms G at the same time as herself until January 2015.
In 2013 the applicant returned to work full time at Company J. In 2013 the applicant entered the respondent’s name in her Company J records as her de facto partner and the respondent’s daughter as her de facto step daughter.
From 3 to 4 February 2013 the respondent’s sister stayed with the respondent at the Suburb B property.
On 14 February 2013 the parties attended interviews with the principal of the junior school at U School to discuss enrolling the applicant’s children. The respondent’s daughter already attended the school (discussed below).
From 26 February 2013 to 4 March 2013 the respondent travelled without the applicant to the US.
In March 2013 the applicant made a statement to police following reports made by the respondent to the police after he says the applicant abused and threatened him. The applicant says the parties were separated for about six weeks until April 2013.
E commenced attending U School in April 2013.
On 2 April 2013 the respondent’s sister stayed with the respondent at the Suburb B property.
On 5 April 2013 the respondent was admitted to V Hospital. The applicant says she visited the respondent in hospital.
From 17 to 18 April 2013 the respondent’s sister stayed with the respondent at the Suburb B property.
The applicant says that she recommenced living with the respondent in about May 2013.
On 27 May 2013 the respondent’s sister stayed with the respondent at the Suburb B property.
From 8 to 9 June 2013 the parties travelled to Melbourne.
In June 2013 Ms R ceased to reside in the leased part of the Suburb B property.
In July 2013 the parties and their children travelled to W Town. The applicant says it was for seven days and the parties stayed in the same accommodation. The respondent says it was for five days and the parties stayed in separate accommodation. I am unable to say how long it was but I accept the applicant’s version as to the accommodation arrangements.
On 27 July 2013 the respondent’s sister stayed with the respondent at the Suburb B property.
In August 2013 Ms X commenced to lease part of the Suburb B property.
On 3 August 2013 the parties travelled to Melbourne for no more than four days.
From 1 to 4 September 2013 the respondent’s sister stayed with the respondent at the Suburb B property.
Between 5 September 2013 and 25 October 2013 Ms G’s father, Mr Y, travelled to Sydney to visit Ms G. He spent time with the respondent during this period.
On 13 September 2013 the respondent called Company J, the applicant’s employer, and introduced himself as the applicant’s partner.
From 1 to 2 October 2013 the respondent’s sister stayed with the respondent at the Suburb B property.
From 1 to 12 October 2013 the applicant says the parties and their children travelled to S Town for 12 days. This is not agreed to by the respondent. Again, there is no travel document that might resolve this disagreement.
From 30 to 31 October 2013 the respondent’s sister stayed with the respondent at the Suburb B property.
The respondent and Ms G ceased their relationship for a short period in November 2013.
On 15 November 2013 the parties attended a promotional event.
From 22 to 23 November 2013 the parties travelled to Brisbane.
The respondent bought a motor vehicle in Queensland on 11 December 2013. The parties and their children travelled to Brisbane. The applicant says this was for seven days. The respondent says it was for two days. I am unable to say how long it was.
Although the respondent denies it, I find the applicant and her children moved into the Suburb C property in December 2013 prior to the Asian trip.
From 23 December 2013 to 1 January 2014 the parties and their children travelled to Asia. The applicant says the parties shared a room and their children shared another room. The respondent says they stayed in separate accommodation. I am unable to say how long it was but I accept the applicant’s version as to the accommodation arrangements.
Mr Z rented the Suburb C property from 21 December 2013 to early February 2014.
The applicant says that she and her children moved out of the Suburb B property in January 2014 and stayed with a friend before moving back into the Suburb C property. The respondent says they never resided there.
The respondent and Ms G recommenced their relationship in mid-January 2014.
On 26 January 2014 the respondent says he spent Australia Day with F, Ms G and her children.
On 4 February 2014 the respondent says the applicant contacted him and had suicidal ideations. The applicant denied being suicidal at that time but agreed she was sitting on the edge of a cliff sending texts to the respondent because she was upset that they weren’t getting along.
In 2014 D commenced attending U School in year 7.
On Valentine’s Day in 2014 the applicant says that the respondent took her to a house where they saw a prostitute. The respondent denies that this ever happened and says he did not spend time with the applicant on Valentine’s Day in 2014.
In April 2014 the parties met Mr AA, a financial planner in relation to the applicant’s finances.
From 1 to 6 April 2014 the respondent’s sister stayed with the respondent at the Suburb B property.
In April 2014 the respondent says he went on holidays with F, Ms G and her children.
The applicant says she and the respondent had lunch in April 2014. The applicant has tendered a photograph with the respondent at the restaurant date stamped 4 April 2014 at 2:12 pm (page 48 of applicant’s tender bundle no. 2). The respondent initially denied he attended the lunch but when shown the photograph agreed the date on it was correct.
In July 2014 the respondent ceased to list the applicant as his “girlfriend” on his HCF policy.
On 5 July 2014 the parties were together but the respondent asserts it was a chance meeting (discussed below).
On 19 July 2014 the applicant says she spent the night at the Suburb B property. The respondent says that did not occur.
On 21 July 2014 the applicant says that she had lunch at the respondent’s house and he gave her a bouquet of flowers. She says that they exchanged some nice text messages including a message she sent him on 22 July 2014 saying “Feeling very special…Thankyou oh so much love tulips & YOU XXXXX ”. In an interview with the police on 28 July 2014 the respondent admitted giving the applicant tulips the week before.
From 24 to 27 July 2014 the applicant travelled to Africa for work. She says that the parties had organised to catch up upon her return but it did not happen.
On 28 July 2014 the applicant retrieved some DVD’s from the Suburb B property. The police became involved. The applicant says she was assaulted by the respondent on this date. The respondent denies that he assaulted the applicant. The respondent was interviewed by police on 28 July 2014 after the applicant accused him of assaulting her (discussed below). The applicant says the parties’ relationship ended on 28 July 2014.
In November 2014 Ms G and her three children moved into the Suburb B property.
In about January 2015 the applicant says she discovered that the respondent had been having a relationship with Ms G at the same time he was in a relationship with her.
In April 2015 Ms X ceased to reside in the leased part of the Suburb B property.
In December 2015 the applicant says the parties and their children travelled to N Town for 14 days. This is disputed by the respondent. Without any independent corroboration, I am unable to accept the applicant’s version. The applicant does not assert that the parties were in a de facto relationship at this time.
In July 2016 Ms G moved out of the Suburb B property but her relationship with the respondent continues.

DISCUSSION

Subsections 4AA(1)-(4) of the Family Law Act 1975 (Cth) (“the Act”) set out the circumstances relevant to whether persons have a relationship as a de facto couple as follows:
(1) A person is in a de facto relationship with another person if:
…
(c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
…
(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 interdepending, 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.
I consider the circumstances of this particular relationship by reference to the subsections of s 4AA(2) seriatim.

(a) the duration of the relationship

The applicant asserts that the parties were in a de facto relationship from January 2009 to July 2014. She says while there were some short breaks in their relationship during that time the parties were never formally separated in that period, apart from a period of about six weeks from February/March 2013, resuming their relationship in April 2013. In her oral evidence she explained that she dated the beginning of their de facto relationship in January 2009 as that is when they commenced a sexual relationship and combined their lives.
The respondent says that the parties were in a relationship in the following periods:
172.1.January 2009 to the end of June or beginning of July 2009;
172.2.December 2009 until March 2010;
172.3.June 2010 to July 2010;
172.4.December 2010 to April 2011; and
172.5.December 2011 to January 2012.
The respondent says during the periods they were in a relationship, the parties saw each other about twice each week, with or without their children. He says in the periods when they were not in a relationship, there were occasions when they saw each other or went out but did so just as friends. He says that between January 2009 to July 2014 the applicant stayed overnight at his house on about 10 occasions, some of them being when they were not in a relationship.
The respondent asserts that after a fight in July 2009 the parties ceased their relationship. He says at that time he did not consider that the parties were in an exclusive relationship, rather they remained friends. Between July 2009 and November 2009 he says the parties saw each other about once a month and on two occasions watched a movie together but did not stay at each other’s homes overnight.
In December 2009 the respondent says that he recommenced his relationship with the applicant for a period of three months. He says during this period, he stayed at the applicant’s home on no more than six occasions, two of those being with F. He says at no time did the applicant stay at his house.
The respondent asserts that in March 2010 he and the applicant had a fight over the fact that he had leased the downstairs flat to a female tenant and the respondent asserts that from his perspective during the period from March to June 2010 the parties were not in an exclusive relationship.
Annexure E to the applicant’s affidavit filed 28 May 2015 (Exhibit 6) is a poem which the respondent wrote to the applicant entitled “The Luv Story”. It is dated June 2010 which is the date the respondent says the parties resumed their relationship for a third time. The respondent did not dispute the date of the poem. It begins, “Our luv was entwined It was so devine [sic] … Jan 09 our lives joined together We both believed it would last forever”. The respondent agreed that these lines indicated that the parties commenced a serious relationship in January 2009. It goes on to say “Think of our children And what we want for them”. This seems to be an expression by the respondent that as at June 2010 he contemplated moving forward with the applicant and their respective children as some sort of family unit.
The respondent then says that the parties resumed their relationship between December 2010 and April 2011. He says that during this period they spent time at each other’s homes about once a week.
The respondent asserts that on 2 May 2011 an employee at M resigned after a confrontation with the applicant and as a result, the respondent indicated to the applicant that the relationship was over.
The applicant denies the respondent’s assertion that they were separated in May 2011, saying that although they fought they were in constant communication. The applicant was asked questions about her attendance at a women’s refuge on 27 July 2011. The notes from that refuge indicate that the applicant sought assistance in relation to her ex-partner and one of her goals was to obtain her belongings from his home (page 73 of the applicant’s tender bundle two). The applicant said that the person she spoke to must have misunderstood what she had said. The applicant’s version of her conversation with the refuge worker was that she had explained that the parties had a disagreement and she needed assistance as sometimes the respondent was mentally abusive and she would have been scared.
In 2011 the applicant celebrated her 40^th birthday in Asia. The applicant in cross examination said the reason the respondent did not travel to Asia with her on this occasion was because he hurt his hamstring playing tennis about a week prior to them leaving and could not fly immediately so could not travel on the same flight and F wanted to wait to travel with him rather than flying with the applicant. She says the respondent and F travelled to Asia after the respondent’s received clearance that he could fly. She then said it was the respondent’s choice for F to wait with him and she did not know why he held her back from coming. Upon the respondent and F’s arrival in Asia, the applicant and her children joined the respondent and F in a villa the respondent had reserved. The applicant says the respondent and F travelled to Asia on her staff travel. The respondent says he and F had first arranged to travel to Asia in those school holidays and the applicant had arranged her party after she found out he was going to Asia. He says he did attend a dinner on the date of the applicant’s birthday in Asia. The applicant disputed this version. She said that they had made the booking for the hotel for the whole holiday in January 2011 after they had previously tried to go to Asia but couldn’t because E’s passport had expired. They went to Cirque Du Soleil instead. The respondent agreed that he saw a performance of Cirque Du Soleil in January 2011with the applicant and their children and that they went in the context of E not having a passport. The applicant said that it was the plan for the respondent and F to invite their friends to the applicant’s birthday celebrations in Asia. I prefer the applicant’s version about the Asia trip in 2011 and consequently do not accept the respondent’s assertion that the parties were not in a close personal relationship as at that time.
Page 60 of the annexures to the applicant’s affidavit filed 10 November 2015 is a card written by the respondent to the applicant. It states, “Luv u!! No there isn’t anyone else! Yes I was hurt! Yes I DO DESIRE EVERY INCH OF YOUR BODY!!!” The applicant says this card was written by the respondent in March 2014. It was suggested by counsel for the respondent that this card was written by the respondent in December 2011. There is no date on the card and I am unable to make a finding as to when it was written.
On 12 August 2012 the applicant attended Suburb T Hospital (discussed in detail below). The respondent filled out the intake form for her admission. In the space for relationship status of the applicant he has written “de facto” and also ticked the box “de facto”. The respondent said that when completing similar forms, “I do muck around a lot and I have prior to this I’m not sure if it happened on this occasion but gone ok what do you want me to be today, married, de facto, single, widowed, divorced or separated and gone tick”. However, when pressed, he agreed given the context, that he had filled out the hospital form seriously on this occasion. The respondent did two things on this form. Firstly, he was asked to record on the form on behalf of the applicant, who was unwell, what her marital status was and he ticked the box “de facto”. He had the option of saying she was single, divorced or married. Secondly, he described himself as her de facto partner. The respondent said it was quite possible that at this time he did consider himself the applicant’s de facto but went onto qualify that answer by saying he was there because he cared for the applicant. It is to be remembered that this evidence is given in circumstances where the respondent’s case was that his close personal relationship with the applicant had ceased in January 2012.
In March 2013 the applicant made a statement to police in which she described the respondent as her ex-partner and that they had been separated for a few days. The respondent had reported that the applicant had been sending him offensive text messages and voicemails. The applicant said the parties had in fact been separated about three weeks prior to her making that report to the police and were separated for a further three weeks after she had made a report on 11 March 2013 that the respondent was stalking her (which means a six week separation). The applicant could not remember when she had moved back into the Suburb B property after this date but said it would have been another gradual merging of her possessions again (the applicant said it was three weeks after the respondent’s operation in April 2013 and she moved back in with the respondent in May 2013).

On 13 September 2013 the respondent called Company J, the applicant’s employer, and introduced himself as the applicant’s partner (page 62 of the applicant’s tender bundle one). The notes of this telephone call indicate that the respondent expressed concerns about the applicant’s mental health at the time. The respondent could not remember what date this had occurred and did not recall what he had said to Company J on this occasion but agreed that he may have described himself as the applicant’s partner although he disagreed that they were in fact partners at this time. He said that he called out of concern for the applicant after receiving a text message from her indicating she may want to harm herself. This was the only occasion the respondent said he had called Company J about the possibility of the applicant self-harming. Whilst it is plausible that the respondent may have described himself as the applicant’s partner on this occasion to give himself some status so that the applicant’s employer might listen to him about his concerns about the applicant, this representation by the respondent is inconsistent with the respondent’s version of the nature of their relationship with the applicant in September 2013.
Between 5 September 2013 and 25 October 2013 Ms G’s father, Mr Y, travelled to Sydney to visit Ms G. He stayed with Ms G at her property in Suburb BB during this period but also spent time with the respondent both at Ms G’s home and the Suburb B property saying the respondent visited Ms G’s home a number of times a week and they visited the Suburb B property about three times per week. He says during this time Ms G stayed overnight at the Suburb B property about four to five times each week and on the weeks the respondent didn’t have F he stayed at least six out of seven nights at Ms G’s home. He also went out on the respondent’s boat. Mr Y says that Ms G took him for a tour of the Suburb B property in September 2013 and he did not see any other children’s rooms except F’s. He was unaware at that time the respondent was involved in another relationship. He did not recall the respondent having any contact with the applicant during the period he was in Australia from 5 September to 25 October 2013.
In December 2013 the parties and their children travelled to Country CC together. The applicant says the parties and the children went to Country CC for a holiday. She says that the respondent travelled as her de facto husband and F travelled as her step daughter on her Company J staff travel. On this holiday she says she and the respondent shared a room. The respondent says on “extremely short notice, of about 2 days, I booked an overseas skiing trip for F and me to Country CC. It was for one week.” He says the applicant and her children joined them on that holiday. He says the parties had a conversation and agreed that the applicant would arrange cheaper flights and the respondent would pay for the accommodation. The applicant arranged for all of them to travel together in business class. The respondent was unsure whether he and F’s plane tickets were from the applicant’s long service entitlements. He said he was “apparently” travelling as the applicant’s de facto partner and F as her de facto daughter. As at 9 November 2013 the respondent was listed as the applicant’s de facto as her travel beneficiaries. The respondent says the parties stayed in separate rooms with their respective children. The respondent denied that he and the applicant had a massage as a couple on that trip. He denied checking into the same hotel as the applicant. He denied having sexual relations with the applicant on this trip. As already indicated, I find that the respondent’s evidence about the Country CC trip to be disingenuous. I accept the applicant’s version and that the applicant believed the five of them travelled to Country CC as a family group. The photograph of the five of them in Country CC (page 38 of applicant’s tender bundle 2) depicts the applicant, respondent and the children as a family group. I also find that the respondent was using the applicant to obtain cheap business class airfares. Remarkably the respondent went on this trip to Country CC with the applicant and the three children without Ms G finding out until she read it in the applicant’s affidavits.
At paragraph [123] of her affidavit filed 10 November 2015 the applicant says that the respondent organised an appointment for her to attend upon a psychiatrist on 19 March 2014. The respondent agreed that he played a part in obtaining assistance for the applicant regarding her mental health and says he did so out of concern for the applicant as a friend. He said that the applicant had asked him for assistance and he believed that he had made the suggestion for the applicant to attend upon a psychiatrist in January 2014.
At page 48 of the applicant’s tender bundle two are three photographs of the parties which she says were taken in April and May 2014. The respondent agreed that the photographs were taken in 2014. However, he denied that he was with the applicant at the concert which is depicted in the third photograph on that page, and did not recognise who the artist was in that photograph.
The respondent was asked questions about what happened on the applicant’s birthday in 2014. At first he said he was unaware of any conversation the two of them had had on that day. The photograph on the top right hand side of Tab D of the applicant’s tender bundle two marked “cc” is a photograph of the parties which the applicant asserts was taken in 2014 on her birthday when the parties went to see a Game of Thrones Exhibition in Circular Quay. Initially the respondent disputed that date but later accepted that it was taken on the applicant’s birthday. I accept that the photograph of the respondent and the applicant on her birthday in 2014 is a genuinely dated photograph. The respondent denied that he was someone who had an interest in the Game of Thrones television series but agreed that the applicant had an interest. The respondent conceded the parties may have had a discussion prior to the photo being taken. He also conceded he may have wished the applicant a happy birthday. He said he did not know what the queues were for and did not go and see the Game of Thrones exhibition. He said he was not aware that he had given the applicant a birthday present but would have wished her a happy birthday if it was her birthday. While the respondent said he was unaware if he gave the applicant blue lingerie as a gift, he was not prepared to deny that on his oath.
Counsel for the applicant submitted that the respondent’s evidence about the Game of Thrones exhibition was not credible. He submitted that it was not the sort of the photograph the respondent would allow to have taken with someone who he says was harassing him and calling him foul names over the telephone. I accept the applicant’s version that she and the respondent attended the Game of Thrones exhibition on the applicant’s birthday in 2014.
On page 19 of the applicant’s tender bundle two is a note written by the respondent to the applicant. It is the applicant’s case that this note was written in 2014. It states, “I find amazing qualities about you. I look forward to sharing our grandchildren together (plus all the excitement & romance along the way of course) cos I KNOW U R THE ONE!!! XXXXX ”. It then has [Ms Y & Mr M] written inside a love heart. On the other page it states, “Cock Hard & THROBBING!!!”. The message seems to be written on Company J note paper. The respondent did not recall writing that message but agreed it was in his handwriting. The respondent agreed that he had a habit of writing the applicant notes while she was at work. He agreed that the message could be interpreted to mean that he was in the position of being a grandparent to any of the parties’ three children’s children or alternatively that the parties would be having children and later grandchildren together. The later interpretation seems more likely. The respondent was unsure whether he had raised the topic of children and grandchildren with the applicant outside of this note and said he did not know what he meant when he wrote it. The respondent later said he used the pronoun “our” because he was “caught up in the moment”. The respondent was offering the applicant a long-term family relationship but his actual motivation seems far more short term. The respondent said it would have occurred early in the parties’ relationship. It is more likely the respondent is correct about when this note was written by him.
The respondent was interviewed by police on 28 July 2014 (the ERISP interview) after the applicant accused him of assaulting her. The respondent told police that the parties had planned for the applicant to stay at the Suburb B property on the evening of 27 July 2014. He said he and the applicant were still good friends at this time and their plan did not involve a sexual encounter. The respondent said he did not know where Ms G was, despite saying they were in a committed relationship at that time. The respondent agreed that he had told police that he had sent the applicant tulips the week before the interview at a time when he said he was in a committed relationship with Ms G.
The respondent denied that the parties were in contact, at least by telephone, on a daily basis between 2009 and 2014. He was taken to page 649 of the applicant’s tender bundle one which is a phone bill and indicates that from 27 May to 26 June 2014 the parties were in contact by telephone on average on at least a daily basis (there was no contact between 31 May and 3 June 2014). Exhibit 13 is the respondent’s bill for his mobile phone. That document indicates that in September 2013, when Ms G’s father was visiting Australia, there were telephone calls between the parties.
Counsel for the applicant claims that the relationship started in 2009 and progressed quickly so that by Christmas that year they spent Christmas together and had integrated their families. The relationship ended, she says, at about the time of the ERISP interview in July 2014 prior to which the parties continued to constantly communicate with one another.
The respondent says that he met his current de facto partner, Ms G, on 26 October 2012. He asserts that he thereafter commenced a relationship with Ms G which is ongoing save for a separation between November 2013 and January 2014. It does not seem to be disputed that the respondent simultaneously was having a continuing relationship, including a sexual relationship, with the applicant. Nonetheless the respondent claims that after 2012 in the weeks he had F, Ms G spent about four nights a week at his home and stayed at his home on the weekends. He says on the weeks he did not have the care of F, he stayed at Ms G’s home about five to six nights per week.
Ms G says that for the first four to six weeks of their relationship they saw each other about twice per week and after that, saw each other about four to five times per week. She says they went out socially for dinner and drinks and met and spent time at each other’s homes. In March 2013 she says the respondent identified a drawer and hanging space in his wardrobe where she could keep clothing and personal items. She also had a shelf in the upstairs bathroom where she kept things on a permanent basis. The respondent had told Ms G that he remained friends with the applicant to support her due to her mental health. Ms G believed she and the respondent were in an exclusive relationship. Over the summer of 2012 and 2013 she says she and the respondent saw each other at least three to four times a week with their children and regularly, several times a week, went to the beach together. She regularly met the respondent when the children were at school and on three to four of those occasions saw the applicant. On one occasion in February 2013 she says the applicant observed them holding hands. I have difficulty accepting that evidence and prefer the applicant’s evidence that she was unaware of the nature of the respondent’s relationship with Ms G until January 2015. In March 2013 Ms G says she was working at Business M and the applicant came in and took some items and did not acknowledge or talk to her. She delivered the respondent to V Hospital in April 2013 and collected him at the end of the day. She says the respondent has assisted her in caring for her own children since early 2013. She says she worked irregularly at Business P in June 2013. They separated for a short period in November 2013. They recommenced their relationship in mid-January 2014. From that time she says she regularly stayed overnight at the Suburb B property, about three to four times per week and says she did not form the opinion that another woman or children were living there. They spent Australia Day in 2014 together. She assisted at Business P about one day a month in February 2014. They travelled away together in the Easter school holidays in 2014 with their children and a group of about eight families. In November 2014 Ms G and her three children moved into the Suburb B property. Ms G was unaware that the respondent was still involved in a relationship with the applicant at the same time as they were in a relationship (between October 2012 and July 2014) until she read an affidavit in these proceedings. She was previously unaware that the parties spent Christmas together in Country CC in 2013. On the day of the ERISP interview, Ms G knew the applicant had been to the Suburb B property to collect some items and the respondent had told her that an altercation occurred leading to police involvement. She could not remember what items the applicant collected. She denied that it was lingerie and DVD’s but said it wouldn’t surprise her now if the applicant had been asking for lingerie to be returned. At the time of the interview in July 2014 Ms G said that she had never seen another woman’s possessions in the home.
In July 2016 Ms G moved out of the Suburb B property but she and the respondent remain in a relationship. She believes from reading the applicant’s affidavit that the respondent was deceiving her about what was happening in his relationship with the applicant. He had given her the impression they were in an exclusive serious relationship. The respondent had been able to keep his relationship with two women a secret from each of them.
The respondent dates the end of his relationship with the applicant as at January 2012. He asserts that he and the applicant remained on good terms and spoke to each other from time to time and says they remained friends during 2012. He says during this time he was aware the applicant was seeing other men but that issue was not explored at the hearing.
The respondent’s assertions do not sit comfortably with the evidence of the August 2012 hospital records where the respondent in serious circumstances represented to the hospital that the applicant’s status was “de facto” and that he was her “de facto”. In addition, the respondent accepted that he had represented to an employee of Company J on 13 September 2013 that he was the applicant’s partner. In addition, the respondent agreed that from time to time at social gatherings he would refer to the applicant as his partner.
I reject the respondent’s assertion that he was not having a close personal relationship with the applicant on multiple occasions when he travelled interstate and overseas with her for holidays, often with the children. Those occasions include July 2009, August 2009, September 2009, October 2009, August 2010, July 2011, October 2011, July 2012, August 2012, October 2012, November 2012, December 2012, January 2013, June 2013, August 2013, November 2013 and in December 2013/January 2014.
I find that the duration of the parties’ close personal relationship was from January 2009 to July 2014. Whether it was a de facto relationship is another matter.

(b) the nature and extent of their common residence

At all relevant times the applicant retained a residence at the Suburb C property and the respondent retained a residence at the Suburb B property.
The applicant says she and her children frequently attended the Suburb B property and it was the common residence of the parties and her children from December 2012 to January/February 2014.
The applicant says she had been given a key to the Suburb B property in January 2009 and the parties referred to their respective residences as “Shack 1” and “Shack 2”. She also says that she knew the alarm code to the Suburb B property. The respondent denies that at any time the applicant held a key to the Suburb B property. He also denies that he had given the applicant the code to deactivate the alarm at his house but that she may have overheard the security word at some stage. The applicant remembered a security word but could not remember an alarm code. Other witnesses in the respondent’s case gave evidence that the respondent often changed the numbers of his alarm code. Ms G did not know the alarm code at the Suburb B property and said she has never used the alarm.
The applicant asserts that in January/February 2009 she was given a shelf in the respondent’s house for her personal belongings. The respondent denies this assertion.
The applicant says that she cooked many times at the respondent’s house throughout their relationship. The respondent says at no time did the applicant undertake any household chores or tasks at his home but says she cooked dinner at his home on about six occasions.
The applicant says that from 2009 to 2012 she and her children had many of their belongings at the Suburb B property and stayed there overnight on many occasions including on weekends and during holidays. She says that from the commencement of the parties’ relationship she spent five nights each week with the respondent. The respondent says that he and F’s mother operated on a week about arrangement and on the weeks that F was in his care, he saw the applicant no more than once a week and when he did not have F he saw the applicant about one or two times per week.
The applicant also asserts that the respondent and F stayed overnight at the Suburb C property where she made up a bed for F in her sunroom. The respondent denies this assertion and says that only on two occasions in the first five months of their relationship did he and F stay at the applicant’s home overnight.
The applicant was asked questions about her descriptions of the Suburb B property. She had asserted that she was “extremely familiar” with the respondent’s house. The respondent agreed that the applicant would have been familiar with the Suburb B property but disagreed she had been “all over” the property. She had described the main bedroom of that property as having an en suite but when pressed, agreed there was no en suite. The bathroom is located two metres down a corridor from his bedroom. The applicant said that the house had a spiral staircase which the respondent denied. She later said in her oral evidence that the staircase does a “U-turn”. Counsel for the applicant submitted that little turns on the applicant’s descriptions of a spiral staircase and an en suite bathroom, saying what is clear is that the applicant spent time in the respondent’s bedroom and both parties were very familiar with each other’s homes. I disagree. The answers given by the applicant in cross examination cast doubt upon how familiar the applicant was with the Suburb B property. While the applicant had described a Teppanyaki grill in the respondent’s kitchen in her affidavit, she agreed that the parties had only planned to insert one. She denied that her children’s bedrooms were not “decorated” in his house. However when asked to describe how her children’s rooms had been decorated in the Suburb B property she gave the vaguest of descriptions.
Ms DD, a close friend of the applicant’s, at paragraph [24] of her affidavit says that she visited the respondent’s house in December 2012 and “saw the two beautiful rooms that [the applicant] had decorated for D and E when they moved into [the respondent’s] house”. In her affidavit she talks about D and E’s two beautiful rooms however she didn’t recall any decorations on the walls but said she looked more at the furniture and clothes. She agreed she had not looked in the children’s wardrobes every time she went but had seen all of their clothes in there as at 2012. However, she conceded she was not to know, as she says in her affidavit, that “all” their clothes were there. She said in 2012 and 2013 she visited the Suburb C property and the children also had clothes and belongings there. I am unable to place any significant weight upon Ms DD’ evidence about the applicant moving into the respondent’s home in December 2012.

Ms RR is the sister of Ms HH and has come to know the applicant as a friend. She first met the parties in September 2011 where she understood that the parties were in a relationship as they were being introduced as “partner” or “boyfriend”. Apart from an occasion in September 2011 where she saw the respondent at a party, she did not see him between January 2009 and January 2014. She saw him in January 2014 in circumstances where she was housesitting at her sister’s. Ms RR confirms that the applicant stayed with her at Ms HH’s home in January 2014 after she had an argument with the respondent. She says she accompanied the applicant on 23 or 24 January 2014 to collect some of her possessions from the Suburb B property and the applicant had said to Ms RR that some things were missing. On the ride home she says that the applicant said the respondent wanted her to sell her house so they could use the money to renovate his house. From that time onwards, she says that the applicant told her that while they were still in a relationship, they had gone back to an earlier arrangement of residing in their own homes. She did not recall when it took place.
Mr SS is a friend of the respondent’s and has known him for more than 10 years. He was aware the parties commenced a relationship in 2009 and from conversations with the respondent believed their relationship ended after about five or six months in 2010 but that they remained friends. Mr SS said that he met another of the respondent’s girlfriends in 2011 and 2012. He has seen the parties together on no more than three occasions. He recalled seeing them together at the gym on two occasions. He has been to the respondent’s house on at least 20 occasions over the last 10 years and has not observed the applicant or her children there nor observed that they lived there. He did not recall being told by the respondent that the applicant had cared for F at any time. He did not know he had accompanied the applicant to Suburb T Hospital and said it would surprise him if he was there in 2012 but wouldn’t surprise him if he went when someone was in need. He said he would be surprised if the respondent described himself as the applicant’s de facto in 2012 and would be surprised if the parties were having sexual relations in 2012. He said it would surprise him if they spent New Year’s Eve together in Country CC in 2013 and that the applicant had her contents and possessions in his house in 2014. He said it would surprise him if the applicant had a key to his house in 2014 and if the respondent sent her tulips and lingerie in 2014. He says Ms G and the respondent attended social functions from the end of 2012 to 2014 together. He said the respondent hadn’t told him about travelling with the applicant at all. Overall I do not place great weight upon what Mr SS knew or did not know about the relationship between the applicant and the respondent.
In 2009 the respondent’s niece, Ms K, celebrated her 21^st birthday in Sydney. The applicant attended. Ms K said she had surfed with the applicant maybe once or twice, not on many occasions. She said they competed as individuals and not in a family team although on one occasion she (and the applicant) competed as family members in a board riding competition.
Mr JJ is a friend of the respondent’s and has known him for about 10 years. He has met the applicant on a number of occasions. He says he and the respondent catch up on a regular basis, about once or twice per week and visit each other at their respective homes. He says he was aware of the parties’ relationship in early 2010. He says at no time did the respondent disclose that he was considering the possibility of living with the applicant or that the applicant had moved into the Suburb B property. He says at no time when he attended the Suburb B property did he form the opinion that the applicant was living there. In his oral evidence he said he probably had dinner with the parties at the respondent’s house but did not remember those specific occasions asserted by the applicant. He agreed he possibly had lunch with the applicant in Suburb TT in January 2009, saying the respondent would have been present as he wouldn’t have had lunch with her without him. He said it was also possible that he had been at the applicant’s 38^th birthday party in 2009 at LL in Suburb V but it was not an event that he could recall. He was unsure if he had attended the applicant’s birthday in 2010 but denied leaving a gift of two bags of large organic coffee and organic almonds as a birthday gift for the applicant in 2010, saying he doesn’t have an affinity with coffee and almonds and is not something he would give as a gift. He had no recollection of attending a dinner party for the respondent’s birthday in 2011 where the applicant cooked. He was not aware of the respondent’s ERISP interview in 2014. He did not accept that he would be surprised if he were to know the parties spent Christmas together in 2013 in Country CC. Mr JJ has been a surf life saver for 25 years. He agreed he had seen the parties together at the beach but did not recollect them to be holding hands, kissing and hugging, saying they were just two people on the beach spending time together. Mr JJ said that he and the respondent would have discussed the parties’ relationship. However, he didn’t know if the respondent spent Christmas in 2012 with the applicant. He said he doesn’t and did not ever have a relationship of any significance with the applicant. He agreed he had observed the applicant at the respondent’s father’s funeral and that she was sitting at the front next to the respondent. He agreed the applicant and respondent may well have been in a relationship at that time. The respondent had never told him he was speaking in court on the applicant’s behalf; introducing her to his accountant; recommending her a psychiatrist. He was aware they travelled together but was not aware of any specific trips or details. He did not recall a conversation where the respondent told him that he was involved in assisting the applicant to lease out the Suburb C property. He did not recall the respondent discussing meeting members of the applicant’s family. He did not believe the applicant lived at the Suburb B property. He said he does drop into the Suburb B property on a regular basis. He had no recollection of the respondent saying he had spent the night at the Suburb C property. He did not know when the parties’ relationship ended.
Ms UU is an acquaintance of the respondent’s. She has known him since 2009. She has delivered her daughter to the Suburb B property to spend time with F. At no time has she seen the applicant on those occasions. She knows the applicant as their daughters are friends. She says she does not recall an occasion when the applicant has delivered or collected F from her home. She has seen the respondent, almost weekly during school term, at F’s sporting events. She has not seen the applicant with him on these occasions. Since 2009 she says she has spent a number of weekends with the respondent and F at the beach and does not recall the applicant being in attendance. In the summers of 2013 and 2014 she met Ms G and was introduced to her as the respondent’s partner. She celebrated Australia Day in January 2014 with the respondent and Ms G and did not see the applicant in attendance. During the Easter holidays in 2014 she says the respondent and Ms G went on holidays with a group of families from U School and their children. Her youngest daughter has had play dates with the applicant’s daughter every year since 2013 and every time she says she has delivered her to the Suburb C property. She says the respondent has not been in attendance on those occasions. At paragraph [20] of her affidavit she says her daughter was “invited to E’s birthday party in 2013 at [Suburb VV] Surf Club”. She says “I did not observe [the respondent] or [F] present at the birthday party”. In cross examination, Ms UU agreed that this assertion was incorrect as she did not go into the venue so she did not know if the respondent was there or not. She said what she meant to say is she didn’t see them outside or milling about party.
It is clear the parties’ social circles didn’t entirely intersect but they did spend time with each other’s friends and family. The reputation and public aspects of the parties’ relationship were more obvious to the applicant’s family and friends.

CONCLUSION

In final submissions, counsel for the respondent said that whilst the court might find the respondent was a “cad”, it would not find that the applicant was his de facto partner.
The onus is on the applicant to establish the existence of a de facto relationship. The central question is did the parties have a relationship as a couple living together on a genuine domestic basis and if so, for how long.
The applicant asserts that she lived in a de facto relationship with the respondent between January 2009 and July 2014 with one short break of six weeks between February and April 2013.
The respondent says that the parties were in a close personal relationship but not a de facto relationship during the following periods:
344.1.January 2009 to the end of June/early July 2009;
344.2.December 2009 to March 2010;
344.3.June 2010 to July 2010;
344.4.December 2010 to April 2011;
344.5.December 2011 to January 2012.
I find that the parties were in a close personal relationship between January 2009 and July 2014. During that time they maintained an active sexual relationship. The respondent also maintained a sexual relationship with other women and from the end of 2012 with Ms G in particular.
As I have indicated already, I do not accept the applicant’s assertion that there was a common residence between December 2012 and February 2014. I find the parties only had a common residence for an insignificantly short time during December 2013 and January 2014. Nor could it be said that each party resided at one another’s home on any consistent domestic basis between January 2009 and July 2014.
There was never financial inter-dependence between the parties and the parties have never acquired and do not own property together.
As I have found, the respondent held out to the applicant a promise of a shared life together but that promise was not genuine. The applicant committed to a shared life and was unaware until the relationship had ended that the respondent had been having relations with other women. Early in the relationship I am satisfied that the respondent spoke to the applicant about having children together but as I have said I do not accept any children were conceived.
Consistent with the respondent’s promise to the applicant of a shared life, both parties had a meaningful involvement in the lives of the child/ren of the other, particularly during holiday periods away from Sydney.
Consistently with the differences in the genuineness with which each party represented the wish of a shared life to the other, the public reputation of the parties’ relationship was stronger amongst the applicant’s relatives and acquaintances than it was amongst the respondent’s.
The determinative factors in this case are the nature and extent of the parties living together under the one roof and the lack of a genuine commitment by the respondent to a shared life.
Having regard to the matters discussed above, I find that the parties were not in a de facto relationship for the period 5 January 2009 to 28 July 2014 as asserted by the applicant. The parties were in a de facto relationship for a short time in December 2013/January 2014.
Accordingly, the applicant’s application for a declaration pursuant to s 90RD of the Act is dismissed.
Consequently there is no jurisdiction to make the other final orders sought by the applicant and the application filed 28 May 2015 by the applicant will be removed from the active pending cases list.

I certify that the preceding three hundred and fifty-four (354) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 20 September 2017

Associate:

Date: 20.9.2017

[2017] FamCA 736

20 September 2017

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