YING & LANG
[2018] FamCA 784
•1 October 2018
FAMILY COURT OF AUSTRALIA
YING & LANG [2018] FamCA 784
FAMILY LAW – DE FACTO RELATIONSHIPS – where the applicant seeks a declaration pursuant to section 90RD of the Family Law Act 1975 (Cth) – where the respondent denies the parties were in a de facto relationship – where the applicant alleges the parties were in a de facto relationship from 1998 to October 2014 – where the applicant has not discharged the onus of proof on the balance of probabilities that the parties were in a de facto relationship as defined by s 4AA of the Act – no jurisdiction to make the declaration the applicant seeks – where the respondent seeks a declaration that a de facto relationship never existed between the parties – where it is not necessary to consider making the respondent’s declaration.
Family Law Act 1975 (Cth) ss 4AA, 90RD, 90SM
Evidence Act 1995 (Cth) ss 91, 128, 140
Sha & Cham [2017] FamCAFC 161
Sinclair & Whittaker (2013) FLC 93-551APPLICANT: Mr Ying
RESPONDENT: Ms Lang
FILE NUMBER: DGC 2474 of 2015
DATE DELIVERED: 1 October 2018
PLACE DELIVERED: Melbourne
PLACE HEARD: Melbourne
JUDGMENT OF: Thornton J
HEARING DATE: 7,8,13,14,15,18,19,20,21 & 22 December 2017
Final Submissions received 2 February 2018
REPRESENTATION
COUNSEL FOR THE APPLICANT: Mr Hone
SOLICITOR FOR THE APPLICANT: Rose Chai Lawyers & Consultants COUNSEL FOR THE RESPONDENT: Ms Swart
SOLICITOR FOR THE RESPONDENT: Tao Jiang Lawyers Orders
(1)The applicant’s Further, Further Amended Initiating Application filed 8 December 2017 is dismissed with the exception of paragraphs 2.1 (concerning the certificate granted pursuant to s128 of the Evidence Act 1995 (Cth)) and 6 (concerning costs);
(2)Paragraphs 2 and 4 of the respondent’s Further Amended Response filed 9 January 2017 are dismissed.
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 Ying & Lang 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 MELBOURNE FILE NUMBER: DGC 2474 of 2015
Mr Ying Applicant
And
Ms Lang Respondent
REASONS FOR JUDGMENT
1.These reasons concern a ten day trial where Mr Ying (“the applicant”) unsuccessfully sought an adjournment on the first day of hearing after having previously confirmed that the trial was ready to proceed. The reasons for the refusal of the adjournment application were given that day.
2.Subsequently the applicant was granted leave to file a Further, Further Amended Application on 8 December 2017 which was not opposed by Ms Lang (“the respondent”).
3.The applicant brings an Application pursuant to s 90RD of the Family Law Act 1975 (Cth) (“the Act”) seeking a declaration that the parties were in a de facto relationship as defined by s 4AA of the Act for more than 2 years for the purposes of s 90SB(a) of the Act.
4.The applicant also seeks a declaration that as a party to the de facto relationship he made substantial contributions for the purposes of s 90SM(4)(a), (b) and (c) of the Act. This application assumes a finding on the threshold issue that the parties were in a de facto relationship as defined by s 4AA of the Act. Ultimately he proposes to make an application for the alteration of property interests as between the parties.
5.The Further, Further Amended Initiating Application filed 8 December 2017 was confusing and contained 5 paragraphs number 1 to 5 and then a further 7 paragraphs numbered 1 to 7. I have relied on the written submissions at the conclusion of the trial as to the orders ultimately sought by the applicant.
6.The respondent in her Further Amended Response filed 9 January 2017 seeks that the applicant’s Further, Further Amended Initiating Application filed 8 December 2017 be dismissed and also seeks a declaration that a de facto relationship never existed between the parties.
7.The trial was listed for a hearing on the threshold issue of whether the parties were in a de facto relationship as defined by s 4AA of the Act.
8.The applicant asserts that the parties were in a de facto relationship for in excess of 16 years from June 1998 until October 2014. This is denied by the respondent.
9.It is the respondent’s case that the documentary evidence produced by the applicant is consistent with the respondent’s evidence that the parties were friends for a period of approximately 16 and a half years and at various times employee/employer or business associates.
10.The applicant also sought interim orders but the interim application is not addressed because the threshold issue must be determined for the Court to have jurisdiction. Therefore the issues in the trial were confined to whether the parties were in a de facto relationship pursuant to s 4AA of the Act.
11.These are my Reasons for Judgment with respect to the threshold issue as to whether the parties were in a de facto relationship pursuant to s 4AA of the Act.
Background
12.The applicant is aged 54 years. He lives at B Street, Suburb C (“the Suburb C property”) which is registered in the name of the respondent. I will return to the Suburb C property in more detail below.
13.The respondent is aged 60 years and is a business owner. She lives at 98 Doncaster Road, Suburb Z (“the Suburb Z property”).
14.Exhibit C2 was a table setting out a chronology of the marriages of the parties based on the evidence in the trial affidavits. This document was ultimately agreed between the parties. During the course of the alleged de facto relationship, the applicant was married to three different women at various times. The applicant made sponsorship applications for each of his spouses to migrate to Australia. The applicant asserts that the last two of these marriages were “sham” marriages.
15.The following tables represent the agreed position in Exhibit C2 concerning the dates of the parties’ marriages and divorces. The tables also include evidence from Exhibits 7 and 8 which were sponsorship applications for a spouse made by the applicant.
1983 Respondent married her first husband Mr D 1985 Applicant married his first wife Ms E 15 February 1993 Applicant divorced his first wife Ms E 1993 Applicant married his second wife Ms F 1 September 1996 Applicant divorced his second wife Ms F 1996 Applicant married his third wife Ms G
APPLICANT RESPONDENT June 1998 Applicant asserts the parties commence a de facto relationship 14 December 1998 Applicant made a sponsorship application for his third wife Ms G January 1999 Respondent told by her first husband that they were divorced May 1999 Respondent married her second husband, Mr H 26 August 1999 Respondent’s first husband applied for divorce 30 July 2000 Applicant divorced his third wife Ms G 15 May 2001 Applicant married his fourth wife Ms J 12 June 2001 Applicant made a sponsorship application for his fourth wife Ms J September 2002 Sponsorship Application refused for applicant’s fourth wife Ms J December 2002 Migration Review Tribunal confirmed the decision to refuse the application for the applicant’s fourth wife Ms J 29 September 2003 Applicant made a second sponsorship application for his fourth wife Ms J (Exhibit 7) 2007 Applicant divorced his fourth wife Ms J January 2008 Respondent divorced her second husband, Mr H 7 March 2008 Applicant married his fifth wife, Ms K September 2009 Respondent commenced a romantic relationship with Mr L 9 April 2010 Applicant made a sponsorship application for his fifth wife, Ms K (Exhibit 8) 22 March 2012 Applicant divorced his fifth wife, Ms K October 2014 Date applicant alleges the de facto relationship with the respondent ended January 2017 Respondent married her third husband, Mr L 16.The applicant had two marriages before he met the respondent. He divorced his first wife Ms E on 15 February 1993 (Exhibit C2). He married his second wife Ms F in New Zealand in 1993 and they were divorced on 1 September 1996.
17.The applicant married his third wife Ms G in 1996 in New Zealand. The applicant sponsored Ms G to Australia as his spouse on 14 December 1998 during the period of the alleged de facto relationship. They were divorced on 30 July 2000.
18.The respondent married her first husband Mr D in China in 1983.
19.It is the applicant’s case that he met the respondent in 1997. The respondent asserts she was introduced to the applicant in 1998, by her first husband. When the respondent met the applicant she was married to her first husband and lived with her son at a rented property at M Street, Suburb N (“the Suburb N property”). The respondent and her first husband separated under the one roof.
20.The respondent married her second husband, Mr H in China in 1999 and divorced him in January 2008.
21.The respondent’s first husband left the Suburb N property about the time that an intervention order was taken out against him by the police on behalf of the respondent. The date of the court application is 18 August 1999. There is a dispute between the parties as to whether the applicant ever lived with the respondent at the Suburb N property.
22.The applicant and the respondent using her father’s power of attorney purchased a business at O Street Suburb N (“the business”) in September 1999. The business was purchased in the name of the applicant and the respondent’s father. The respondent’s father lived in China.
23.The parties are in dispute as to whether the applicant made any financial contribution to the purchase of the business. The applicant asserts that he contributed $35,000 to the purchase and the respondent asserts that he made no financial contribution to the purchase.
24.The business comprised a shop at the front with a small residence at the back. The respondent lived and worked at the business. There is controversy about whether the applicant lived at the business. The applicant asserts that he lived at the business with the respondent and that they had a sexual relationship. This is denied by the respondent.
25.It is the respondent’s case that the applicant was a friend whom she regarded as a brother and that he never lived at the business but that she resided there with her son and the applicant used the address as a postal address only.
26.The parties agree that during the period of the alleged de facto relationship the applicant worked for a number of the respondents businesses. There is a dispute about whether he owned those businesses. The respondent asserts that she operated a small business with her first husband and employed the respondent. She asserts that the respondent was employed as a manager in other businesses that she set up.
27.The parties ultimately agreed that the business was sold for $64,000 and settled in early 2002. There is a dispute about whether the applicant was entitled to any of the proceeds of sale of this business. When the business was sold the respondent paid the proceeds of sale into her father’s account.
28.In 2000 a property in Suburb P (“the Suburb P property”) was purchased in the name of the respondent.
29.In 2001 a property at Q Street, Melbourne (“the Q Street property”) was purchased in the name of the respondent. There is a dispute as to whether the respondent ever resided at this property with her son.
30.The applicant married his fourth wife, Ms J in China on 15 May 2001. He made an application to sponsor her to Australia from China in June 2001 (Exhibit 3). This application was refused in September 2002 but then reviewed by the Migration Review Tribunal in December 2002 (Exhibit 5).
31.The Migration Review Tribunal confirmed the decision to refuse the application, but the applicant was successful in making a further sponsorship application for Ms J to come to Australia as his spouse which was granted in 2003. Ms J arrived in Australia in 2004. They divorced in 2007. The applicant claims his marriage to his fourth wife was a “sham” marriage. The applicant asserted that Ms J is the cousin of the respondent and that the respondent asked him to sponsor Ms J.
32.In her affidavit, the respondent denied that Ms J was her cousin. She deposed that she was involved in introducing Ms J to the applicant because he asked her to introduce him to “a potential girlfriend”. The respondent gave evidence at a Migration Review Tribunal hearing in support of the applicant’s sponsorship of Ms J. The decision of the Tribunal is dated 19 December 2002. She gave evidence that she became good friends with the applicant in late 1998 and that she was like an older sister to him and he was a “brotherly friend”. She also gave evidence that she was not the girlfriend of the applicant and he was living at the Suburb C property, as were student borders (Exhibit 5).
33.The Suburb C property was purchased in 2002 and although the contract note referred to both parties as purchasers, the contract of sale was in the name of the respondent. The Suburb C property was registered in the sole name of the respondent. A key issue is whether the parties shared a bedroom at the Suburb C property and were living in a de facto relationship.
34.The applicant asserts that he contributed financially to the purchase of the Suburb C property and nine other real properties during the course of the alleged de facto relationship. He asserts that he contributed to the purchase of those properties through his work in various businesses in which he was involved with the respondent. This is denied by the respondent.
35.It is common ground between the parties that no real property was ever registered in the name of the applicant. The real properties purchased during the period of the alleged de facto relationship were registered in the name of the respondent, or R Pty Ltd as trustee for the S Trust or the respondent’s son or her nephew.
36.There is a dispute between the parties as to the role of the applicant in various businesses. The applicant maintains that he was not paid any salary because he was not a “worker” but a “boss.” This is disputed by the respondent. The applicant worked for T Pty Ltd and a company U Pty Ltd (“UPL”). The parties registered UPL in August 2001 and were registered as directors. The respondent resigned as a director in February 2002. The company UPL was deregistered in November 2008.[1]
[1] Affidavit of the applicant filed 24 May 2017, Annexure XY-16.
37.The respondent operated a business through V Pty Ltd (“VPL”) which was registered on 25 March 2002. At some point the applicant was a director of the business, but there is dispute as to the reason for his involvement in VPL and the extent of his involvement in the business.
38.Further the parties, together with four other partners, were involved in another business W Pty Ltd (“WPL”) from 2001 to 2007. However there is a disagreement about the extent of the applicant’s involvement in the WPL business. The applicant was employed when this business was operating. There was no evidence adduced in the trial from any other person involved in the WPL business.
39.Due to a partnership dispute with the other four partners, on or about November 2002 a company called X Pty Ltd (“XPL”) was registered to take over WPL with the applicant as the director. There is a dispute between the parties in relation to the circumstances relating to the later directorships of XPL.
40.The applicant married his fifth wife Ms K in 2008. He divorced Ms K on 22 March 2012. The applicant deposed that he and Ms K were “intimate with one another”. The applicant sponsored Ms K to Australia on a spouse visa on 9 April 2010. The statutory declaration signed by the applicant for the sponsorship declared that he was committed to a shared life as husband-and-wife to the exclusion of all others with his fifth wife. The applicant declared that the relationship with his fifth wife was genuine and continuing (Exhibit 11). However the applicant in cross-examination stated that this declaration was false. He stated that he had a joint bank account with Ms K and changed the address on his mobile phone to her address to defraud the Department of Immigration and Border Control (“the Department of Immigration”).
41.In 2009 the respondent registered another company Y Pty Ltd (“YPL”).
42.In 2009 the respondent purchased the Suburb Z property in the name of R Pty Ltd as trustee for the S Trust. The respondent asserts that she lived at the Suburb Z property with her son from around March 2010. The respondent maintains that she kept her master bedroom at the Suburb C property after she moved into the Suburb Z property. The applicant asserts that the respondent lived at the Suburb C property but would occasionally live at the Suburb Z property when he was overseas.
43.The applicant alleges that the de facto relationship with the respondent ended in October 2014.
44.An intervention order was made in the Magistrates’ Court 2016 excluding the respondent from attending the Suburb C property until 6:00pm. That intervention order expired on 5 November 2017.[2] However, since the expiration of that period the applicant continued to reside at the Suburb C property as at the time of the trial. A further application to the Magistrates’ Court to extend the intervention order had been adjourned at the time of trial.
[2] Affidavit of the applicant filed 24 May 2018, Annexure XY-37.
45.The respondent has also made an application to VCAT for possession of the Suburb C property and that proceeding has been stayed pending the outcome of this trial.
46.The respondent married her current husband, Mr L in January 2017.
47.The fact finding task in this case was particularly difficult because of the confusing state of the evidence which was unsatisfactory and unclear. The witnesses were often recalling historical events without the benefit of any documentary evidence.
The relevant law
48.Section 90RD of the Act provides for declarations about the existence of de facto relationships.
49.Section 90RD(1) of the Act provides:
(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.
50.It is important to keep in mind section 4AA(1) of the Act which is the statutory definition of “de facto relationship”. S 4AA(1) provides:
(1)A person is in a de facto relationship with another person if:
(a)the persons are not legally married to each other; and
(b)the persons are not related by family (see subsection (6)); and
(c)having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
51.In this case the parties were not legally married to each other and are not related by family. The focus here is whether having regard to all the circumstances of their relationship the parties had a relationship as a couple living together on a genuine domestic basis.
52.In working out if persons have a relationship as a couple, the circumstances may include any or all of the circumstances as set out in s 4AA(2) of the Act. Section 4AA(2) of the Act provides that the 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.
53.Section 4AA of the Act also provides:
(3) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4) A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
(5) For the purposes of this Act:
(a)a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and
(b)a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.
…
54.Referring to subsection 4AA(4) of the Act in Sinclair & Whittaker (2013) FLC 93-551 (“Sinclair & Whittaker”) at par 54 the Full Court said:
Thus, whether or not a de facto relationship, as defined, exists will depend upon an assessment of all of the circumstances of the relationship, each to be given the weight the court thinks appropriate.
55.At paragraph 65 and 66 the Full Court said:
Given the nature of the definition of a de facto relationship in the Act the ultimate decision as to whether there is a de facto relationship at any given time is a matter for the court and not a matter for the parties. Although their perception of the nature of the relationship is a relevant matter it is not determinative.
The fact that such statements are made to lenders or government authorities does not elevate them to a higher status. In Hayes v Marquis [2008] NSWCA 10 McColl JA said a [99]:
Statements to a government authority apparently inconsistent with any party’s case may complicate the resolution of the issue of the nature of the relationship, but they are not determinative. They are taken into account as part of all the circumstances… (References omitted)
56.In Sha & Cham [2017] FamCAFC 161 at paragraph 28 the Full Court approved the approach in Sinclair & Whittaker.
Evidence
57.During the trial, the applicant was granted a certificate under s 128 of the Evidence Act1995 (Cth) extending to the affidavit evidence filed by the applicant and any evidence in chief and cross-examination of the applicant during the trial relating to all evidence given about the applicant’s marriages and immigration matters relating to the applicant’s spouses.
58.The documents relied upon by each party are listed in Annexure A. The applicant and respondent were cross-examined at trial. The parties and many of their witnesses gave evidence with the benefit of an interpreter.
59.The following witnesses gave evidence on behalf of the applicant:
· Mr AA, the applicant’s son;
· Mr BB, the applicant’s friend;
· Ms CC, the applicant’s step-daughter;
· Ms DD (by telephone);
· Mr EE, an acquaintance of the applicant; and
· Mr FF, a friend of the applicant (by telephone).
60.The following witnesses gave evidence on behalf of the respondent:
· Mr GG, the former tenant of the respondent;;
· Ms HH, the friend of respondent;
· Mr II, the respondent’s son from her first marriage;
· Ms KK, a former tenant of the respondent;
· Mr JJ, an employee and friend of the respondent;
· Mr H, the second husband of the respondent;
· Mr D, the first husband of respondent; and
· Mr L, the third husband of the respondent.
61.The trial proceeded over a period of ten days and the evidence was voluminous. For example, the applicant filed an affidavit with hundreds of pages of annexures. With a couple of exceptions the annexures were not referred to in written submissions.
62.I have carefully considered the written submissions and the evidence and set out below the relevant evidence. Because the trial covered over 16 years of the alleged de facto relationship between the parties I have not referred to every piece of evidence. The fact that particular evidence is not referred to does not mean that it has not been considered. It would be practically impossible to refer in these reasons to all of the evidence.
Standard and onus of proof
63.The onus of proof is on the applicant to establish the asserted de facto relationship under the Act.
64.The standard of proof is the balance of probabilities (Sinclair & Whittaker at paragraphs 88-91).
65.The onus of proof for the declaration which the respondent seeks is on the respondent to establish that there was never a de facto relationship. However if the applicant fails to discharge the onus then the court lacks jurisdiction and the declaration sought by the respondent is not necessary and need not be considered.
66.In determining the facts, I have applied s 140 of the Evidence Act 1995 (Cth), which is the civil standard of proof. Where I have made findings, I am satisfied that the facts have been proven on the balance of probabilities.
Evidence of the applicant, the respondent and other witnesses
67.The evidence of the applicant and respondent in relation to the dates of the purchase of various businesses and properties was largely consistent. However they essentially disagreed as to the extent of the involvement of the applicant in those businesses and the purchase of real properties and the nature of their relationship. The parties also disagreed about the circumstances of the acquisition of properties and businesses. I have set out below the different versions of evidence provided by the applicant and respondent, and their witnesses.
Evidence about when the parties met
68.The applicant deposed that he met the respondent in Melbourne in 1997 shortly after he migrated to Australia. He deposed that he was employed and that the respondent was unemployed and in receipt of Centrelink benefits. He deposed that they began dating and, without specifying a date, that a sexual relationship commenced. This is disputed by the respondent.
69.The applicant deposed that he moved in with the respondent in 1998 living at the Suburb N property where they shared a bedroom. He deposed there were:
…two other tenants living there. Although we shared our joint living expenses including rent, groceries, utility, and dining out we did so in cash rather than by way of the joint bank account”.[3]
[3] Affidavit of the applicant filed 24 May 2017, par 8.
70.He deposed that in June 1998 they each told their parents about the relationship. This was denied by the respondent in her affidavit.
71.The applicant deposed that the respondent had a difficult relationship with her first husband Mr D. He deposed that he defended her from a physical assault by her first husband on 16 August 1999. He deposed that in the police report about that incident the respondent referred to him as “her boyfriend” and he annexed the statement.[4] The respondent denied that in 1999 she told the police that the applicant was her boyfriend. She deposed that she “may have told the police that he was my male friend. I did not have good English and there was no interpreter present. I say that the statement was not accurate”.
[4] Affidavit of the applicant filed 24 May 2017, Annexure XY-3.
72.The respondent deposed that she first met the applicant in 1998 when she was introduced by her husband Mr D. She deposed that the applicant had certain employment skills which she required for her business so she offered him work.
73.The respondent deposed to arguing with her first husband because he was not happy with her running her own business and was strongly against her buying the business. She deposed “our relationship deteriorated further about late 1998 and we separated under the same roof at the [Suburb N property]. About late 1999, [Mr D] moved out and I lived at the [Suburb N property] with my son”. The evidence of the respondent’s first husband Mr D was that they separated under the one roof in 1996 and the respondent asked him to arrange for a divorce in 1998.
74.The respondent’s first husband Mr D deposed that he first met the applicant between 1997 and 1998 when “both of us were having a break in a … parking area in [LL Town], I and [the applicant] started to chat to each other”. Mr D deposed that he introduced the applicant to the respondent and that the applicant started to work for the business that he operated with the respondent, T Pty Ltd, on “a call basis.” The applicant in response deposed that he met Mr D on 16 August 1999.
Evidence of the parties about the nature of their relationship
75.The respondent deposed and maintained in cross-examination that at no time has she been in a relationship with the applicant “which could be characterised as a de facto relationship”. In cross-examination she maintained that she had a very good relationship with the applicant and that he called her “big sister”.
76.In his reply affidavit filed 13 September 2017 (“reply affidavit”) the applicant deposed that the “very first time” the parties had sexual intercourse was “inside a car”. No date was provided as to when this is said to have occurred. The applicant deposed that he could “describe in detail the body shape and marks of the Respondent”. The applicant was extremely descriptive about the parties’ sex life, including describing it as “strong” and “frequent”.
77.The respondent deposed that at no time has she been in an “intimate personal or sexual relationship” with the applicant.
78.The applicant annexed photographs to his trial affidavit (Annexure XY-1). He deposed that the photographs were taken “during the course of our relationship.” They appear to be professional photographs and the applicant and respondent are seen to be holding hands. The photographs are undated.
79.The respondent had a number of explanations for the photographs in Annexure XY-1. She deposed in her affidavit at paragraph 5 that they were taken at a:
…newly opened photography studio near my business in or about August 2003 at a time when I trusted [the applicant] very much and treated him like my brother. I always like to take photos and I had already taken some photos in this studio. On that particular day, I was taking more photos with my employees working in my business, [the applicant] came over and asked me to take some intimate photos with him, I asked him why, he said that he would tell me later, I took these photos with him in the studio.
80.In cross-examination the respondent gave evidence that the photographer directed the parties to pose so that he could use the photographs for advertising for the shop. She provided a further explanation which was not in her affidavit. She maintained that the applicant requested that intimate photos be taken so that he could use them for evidence because he had been accused of rape.
81.The applicant deposed that from 29 August 2004 to 2 September 2004 the parties holidayed in New Zealand. He deposed that they considered it to be a “honeymoon” because due to their commitment to their businesses they had not had time to travel overseas together up until this point. The applicant annexed photographs of the applicant and respondent taken during this trip (Annexure XY-30). The photographs depicted the applicant wearing a shirt and tie and it was put to the applicant in cross-examination that he and the respondent were wearing business clothes. The applicant explained that he was properly dressed for photographs.
82.The respondent denied the evidence of the applicant regarding the trip to New Zealand in 2004 and deposed that the applicant at this time was trying to persuade her to invest in business in New Zealand. This was denied by the applicant in cross-examination who gave evidence that the business in Australia was not doing well and that there was no money for another business.
83.At the time of this four day trip in 2004 the applicant was married to Ms J whom he had sponsored to live in Australia. The respondent was married to her second husband at the time of this trip.
84.The applicant also deposed that the parties travelled to Canberra together in 2005 and annexed poor quality copies of photographs of the parties (Annexure XY-31). It is not clear from the photographs where they were taken and these photographs are undated.
85.The applicant deposed further that occasionally they would travel to Sydney when he took clients to Sydney. It was not clear if the applicant was asserting that the trips to Sydney were for a holiday or for business.
86.The applicant deposed to what he described as the “public nature of the relationship”. For example the applicant deposed that the parties’ business and personal lives were intertwined. He deposed that most of the time they spent together was at work, but that they did have social events with the employees of the business. The applicant also deposed to the parties attending a friend’s wedding together in 2011.
87.Further the applicant deposed to the parties sharing household duties at home. He deposed that the respondent would cook and he would clean. He deposed that he would buy the respondent jewellery and she would buy him clothing and make him breakfast each morning before he went to work.
88.He deposed that the respondent generally managed the business administration while he worked in the businesses.
89.The applicant deposed that the respondent was in charge of the parties’ financial affairs and that he had “trusted her fully to look after and manage our financial matters”. He deposed that the respondent managed the distribution of profits from the business and payments of suppliers as well as other day to day functions and administration of the business.
90.The applicant maintained that “we were making sufficient profit to support our living expenses and our mortgage repayments and other investment properties.” He deposed that he trusted the respondent to take charge and manage their financial affairs but that he did not know the details of the company tax affairs. He deposed to attending meetings with the respondent and their accountants in relation to the business tax affairs.
91.The applicant deposed that the parties did not have any personal joint accounts “since we never thought that it was necessary”. He conceded the parties only had joint business accounts. He deposed that the respondent told him that she used bank accounts in her sole name to manage some of the business affairs for “asset protection purposes”.
92.The applicant deposed in his trial affidavit at paragraph 89 that the respondent:
…generally handled our daily takings and would deposit some of it into our business bank accounts and use the remaining cash for our day-to-day living expenses. We didn’t nominate salaries for one another but both drew on either the cash or the joint account for our expenses and there was sufficient income from the business to allow us both to do that.
93.The applicant deposed that he and the respondent took many photographs together with relatives, friends and staff but that he has limited photographs as most of them were kept by the respondent.
94.The respondent deposed that the first time she became aware that the applicant was claiming they had been in a de facto relationship was in January 2015 when the applicant asked her to lend him money and she refused. She deposed that on 2 March 2015 the applicant sent her a text about “going through legal proceeding regards [sic] the alleged de facto relationship” and that the applicant came to the Suburb C property to change the locks and the police were called, which lead to the intervention order proceedings. In response to the respondent’s affidavit, the applicant denied that in January 2015 he asked the respondent for money. The allegations surrounding the making of the intervention order are discussed in more detail below.
95.Throughout the proceedings the respondent maintained that the applicant had access to her personal records, diary and other documents which she had left at the Suburb C property. The applicant’s evidence about whether he had these documents was not clear. At one stage he gave evidence that the respondent took her belongings “a long time ago” and then that her lawyer came and took away personal items. When asked why he had a copy of the respondent’s father’s financial information (Annexure XY-35 to the applicant’s affidavit) he responded that by 2012, 2013 and 2014 he started to distrust the respondent and he found it in a case under the bed. When it was again put to him that he took the respondent’s personal belongings when she was excluded from the house he responded as follows:
I don’t agree with your assumption. We have already broken up so who would leave anything valuable there. Even a fool won’t do that.
96.However the applicant did indeed possess the respondent’s diary because during the course of cross-examination his counsel produced the respondent’s diary.
97.In cross-examination the applicant agreed that he never travelled to China with the respondent but maintained that this was because of the joint business obligations which meant that one of them had to remain in Australia.
98.The applicant relied on Exhibit C which comprised copies of the respondent’s Incoming Passenger cards. On two of the cards, dated 15 April 2007 and 7 February 2008, the respondent recorded the applicant’s name as her emergency contact. On two other cards, which were in Chinese, dated 17 September 2013 and 19 October 2013, the name of the applicant was in English and the respondent agreed in cross-examination that this also was an emergency contact. The respondent in cross-examination explained that the reason why she nominated the applicant was because he was her “team manager” at the time.
99.At the commencement of the trial the applicant changed his evidence about the date that the relationship ended, which he had provided in an earlier affidavit not relied upon for these proceedings. He had maintained in his earlier affidavit that the relationship ended in March 2012, but stated in cross-examination that this earlier affidavit was a mistake made by his lawyer and that it was a “typo” made by the lawyer in his affidavit because the relationship ended in October 2014. In his affidavit filed 24 May 2017 (“trial affidavit”) he deposed that he lived at the Suburb C property since May 2002, “except for the short period of time” when he was with Ms K.[5]
[5] Affidavit of the applicant filed 24 May 2017, par 156.
The nature and extent of their common residence
100.The applicant deposed at paragraph 129 of his trial affidavit to a table of the total period of cohabitation with the respondent being 16 years and three months as follows:
Approximate duration Time period Address 1 year, 3 months June 1998 – September 1999 The Suburb N property 2 years, 7 months September 1999 – April 2002 The business Less than 1 month April 2002 Short term rental in Suburb C 12 years, 5 months May 2002 – October 2014 (separated under one roof in March 2012)
From March 2012 – October 2014
Occasionally slept togetherThe Suburb C property Total period of cohabitation during relationship: 16 years, 3 months 101.The respondent denied that she ever lived with the applicant in a de facto relationship. She deposed in her trial affidavit that she lived at the Suburb N property between 1995 and 1999. She deposed that she moved into the residence with her son at the business which she purchased under the name of her father and the applicant. She deposed that the business was purchased in or about September 1999 and the sale was settled in February 2002.
102.The parties agreed that the business was attached to a residence with two bedrooms. The applicant deposed that he lived there with the respondent after settlement of the purchase of the business in about October 1999.
103.The applicant agreed that the business was sold in February 2002 but maintained that the parties continued to live there until April 2002 “because the purchaser required our assistance after settlement”.[6]
[6] Affidavit of the applicant filed 13 September 2017, par 21.
104.He denied that the respondent’s son lived at the business. He deposed that the respondent’s son lived with his father (the respondent’s first husband) and visited the respondent at the business about once or twice a month.
105.The respondent deposed that the applicant did not live with her at the business, but that his parents stayed at the business during their visit to Australia. The applicant deposed that his parents and the respondent’s parents stayed with them at the residence behind the business for a period of about six months in 2000. The respondent agreed that the applicant’s parents stayed there for company.
106.In cross-examination, the respondent gave evidence that in 1998 the applicant was living with his third wife in Suburb MM. The applicant agreed that he lived with his third wife in Suburb MM in March 1998, but that he moved in with the respondent in June 1998.
107.Mr D the respondent’s first husband was extensively cross-examined about the arrangements for the child of the marriage recorded in his divorce application. This was because in the document completed by Mr D it appeared that the child was living with him at an address in Suburb N. He maintained that when he wrote the application he had referred to his plan for the arrangements but that his plan was not subsequently implemented. He maintained that the child lived between both parents but that the child mainly lived with the respondent after he left the Suburb N property.
108.Mr D deposed that when he visited his son at the business premises he would meet with his son and the respondent. He deposed that he visited his son almost every week and never met the applicant at the business premises.
109.Mr D deposed that in about 2001 the respondent told him that she and their son moved into the Q Street property and that he visited his son regularly and that he did not see the applicant at the property.
110.Mr D deposed that when his son lived at the Suburb C property he only visited him a few times. In contrast, the applicant deposed in his reply affidavit that the respondent’s son never lived at the Suburb C property except for two weeks temporarily in or about 2010.
Evidence of the respondent’s son Mr II
111.Mr II is the son of the respondent and her first husband, Mr D. He deposed that from about 1995 until 1999 he and his parents lived at the Suburb N property.
112.It is important to note that many of the questions asked of this witness in cross-examination referred to events and circumstances which occurred when he was a child. He was born in 1984 and therefore when he asserted he was living at the business he was approximately 15 years old.
113.Mr II deposed that he recalled first meeting the applicant when the applicant was parking a van outside “our residence” and that his mother, the respondent, told him that the applicant was her employee. He deposed that he could not recall where and when this occurred. In cross-examination he could not recall where he was living when he met the applicant.
114.He deposed that he recalled that “later on” he and his mother moved into the residential area of the business. No date was provided for this in his affidavit. He recalled that the residential area of the business had “two to three bedrooms” and that he lived in one of the bedrooms. He deposed that he also went to his father’s place to live “now and then”.
115.Mr II in cross-examination couldn’t remember the year that his parents separated. He gave evidence that after his parents separated he lived with his mother, before the business was purchased. He maintained in cross-examination that after his parent’s separation he mainly lived at the business but sometimes he lived at his father’s place.
116.Mr II gave evidence that his grandparents stayed at the business but that he could not really recall when they stayed or whether any other older couple came to stay.
117.In cross-examination Mr II could not remember whether anyone else was living at the business when he lived there.
118.Mr II deposed that his mother purchased various properties following the sale of the business. He deposed that during the time that he lived with her from time to time he also lived independently in “various properties” that she owned. Mr II did not expand further on this or provide any details about the years when this occurred. He deposed that he also lived with his father from time to time until he married and that he mainly lived with his mother or in the properties owned by her. It was put to Mr II that in the time that his parents were separated that “most of the time” he lived with his father. This was denied by him.
119.Mr II deposed that he believed the business was sold in 2001. In cross-examination he could not remember if he ceased living at the business before it was sold.
120.When it was put to Mr II by counsel for the applicant that the respondent did not live at the Q Street property he maintained that she did.
121.Mr II was referred to his affidavit filed in the Federal Circuit Court on 2 February 2016 in which he deposed at paragraph 13 that from September 2002 until approximately March 2010 he and his mother lived at the Suburb C property. He stated that he wanted to correct that statement. His oral evidence was not entirely clear, but he seemed to assert that during that time he also lived at the Q Street property.
122.Mr II denied that he only lived at the Suburb C property for a couple of weeks.
123.Mr II was referred again in cross-examination to his affidavit which was filed in the Federal Circuit Court on 2 February 2016. At paragraph 15 of that affidavit he deposed:
When I lived at the Suburb C Property, [the applicant], his ex-wife [Ms J] and her daughter lived in 2 bedrooms on the ground floor of the Suburb C Property from 2004 to 2007. All of them left the Suburb C Property in 2007.
124.He maintained this was correct in cross-examination. He explained by “all of them” he referred to the applicant, Ms J and her daughter and that they left around 2007. He could not say whether they all left together or if Ms J and her daughter moved out at a separate time.
125.In relation to the applicant Mr II deposed that “[d]uring the time that I lived with my mother, I recalled that I saw [the applicant] infrequently”. He deposed to meeting the applicant at the Suburb N property, the Suburb C property and WPL. He deposed that “each time I met [the applicant], he was either parking the …van or picking up the …van from our residency [sic] or dropping off customers at WPL”. In cross-examination he agreed that he “seldom” saw the applicant at the Suburb C property.
Evidence of the applicant’s god-daughter Ms CC
126.The applicant deposed that his god daughter Ms CC who was the daughter of his second wife, Ms F stayed with them at the business for about a month in December 2001 and to the parties being “open about our relationship with her”.
127.Ms CC deposed that she has “conducted a relationship with [the applicant] since December 2001”. She deposed that the applicant made an offer for her to reside with him from December 2001 and January 2002 at the business premises. She deposed that:
I recall whilst residing in the business there was a house annexed at the rear with two rooms and a dining room are [sic] [the applicant] was also living at the time with his partner [the respondent] whilst I was residing in the property I recall both [the respondent] and [the applicant] were cohabitating and sleeping in the same room.
128.She deposed to assisting in the business and at WPL.
129.In her affidavit, the respondent deposed that she had never met Ms CC. She deposed at paragraph 165 that she moved into the Q Street property once settlement occurred in or about September 2001 and she deposed that she did not live at the business between December 2001 and January 2002. In earlier evidence outlined the respondent deposed she lived at the Q Street property “now and then” in 2001.
130.During cross-examination Ms CC gave evidence that the respondent collected her from the airport and that the first person she met at the business was the respondent. She gave evidence that she saw the respondent every day when she was at the business when she woke up in the morning.
131.Ms CC gave evidence that she visited WPL owned by the applicant and respondent around four to five times and also met the respondent’s son.
132.Ms CC was asked if it was possible that she saw the respondent only a few times at WPL. She responded:
Impossible. She has been to our house and met my mum…She had been to New Zealand to visit my mum’s house and to meet my mum. How can you say she has no impression of me?
133.Ms CC couldn’t recall the details or when the visit to her mother’s house occurred but said that she remembered after she came to Melbourne that the applicant and respondent visited her mother in New Zealand. She gave evidence her mother told her about the visit.
134.Ms CC gave evidence that she has not been back to Melbourne in 16 years and that she has rarely seen the applicant since leaving the business and she has not spoken to him much on the telephone.
135.Ms CC was asked questions about the applicant contacting her to give evidence as a witness. She gave evidence that he contacted her a few times, that she gave him the “cold shoulder” but due to his persistence she agreed to be a witness for him.
136.She was asked what the applicant said to her when he asked her to be a witness. She responded “…he said to me you just need to tell the truth. That’s [sic] true I was indeed living with them for a few weeks”. She was asked by counsel for the respondent what the applicant told her about the court proceedings. Ms CC responded that she did not know much about the proceedings and she just knew that the applicant asked her to be a witness as he and the respondent had separated. She stated that she had no idea what they were arguing about.
137.Ms CC further gave evidence that she didn’t want to be a witness but she came because of the applicant’s persistence. She stated “to be honest I don’t like [the applicant] personally” but that it was impossible for him to ask her to do “whatever he likes.” She maintained that she was in court to tell the truth.
138.The respondent gave evidence that the business had two bedrooms, a large living room and an outside living room. She stated that she had a bed in the living room and started work at 6:00am and finished at midnight but that sometimes she slept in her parents’ room when they were staying at the business.
139.In cross-examination the applicant maintained that he was living at the business with the respondent when the business was operating. The respondent gave evidence in cross-examination that the applicant used the business address to receive documents.
140.The Suburb C property was purchased in 2002.
141.The applicant deposed that before moving into the Suburb C property that he and the respondent stayed with Mr EE for three weeks from about April 2002 until about 8 May 2002. He deposed that he and the respondent slept in the same bedroom at Mr EE’s house. Mr EE, an acquaintance of the applicant, gave evidence in these proceedings for the applicant.
Evidence of Mr EE
142.Mr EE deposed that he made an offer for the applicant and respondent to stay at his property in Suburb C for a period of three weeks in or around April 2002 prior to the parties moving into the Suburb C property. He deposed that he recalled charging the parties $150 per week to stay in one room and that “[t]hey stayed in the same one room for the period of three week”. He deposed that he believed that at that time “they were carrying on a domestic relationship because they slept together”. He deposed that the respondent would do laundry for the applicant when they stayed at his house.
143.The respondent deposed that she does not know and has not met Mr EE. The respondent deposed that the Q Street property was purchased in about 2001 and that from 2001 to 2002 she lived in the Q Street property with her son and his then girlfriend. She deposed that the Suburb C property was purchased in about 2002 and that there was no reason for her to stay with others in or around 2002 before she moved into the Suburb C property.
144.During cross-examination Mr EE was adamant that the respondent and applicant stayed at his house. He gave evidence that he was also at his house during this period. He denied that it was possible that another woman stayed at his house with the applicant. When asked if it was possible it was someone else he responded “Are you kidding? I’m a very mature adult. I can know and see people straight away who they are…”
145.Mr EE gave evidence that he helped the applicant and respondent move into the Suburb C property. This evidence was not in Mr EE’s affidavit. When asked about this omission he responded there were too many things and not everything was in his affidavit. He said he just had to “prove” that they had stayed with him for 2-3 weeks and that was the most important thing he needed to say. He was asked how he knew this and he responded “because I was asked if I can prove they both had been staying at my place for 2-3 weeks. That is a fact…”
146.Concerning Mr EE, the respondent maintained in cross-examination that she had never seen him and did not know him. It was put to the respondent that the name of the witness Mr EE was written on several pages in her diary from 2002. The respondent maintained that her diary and other personal papers and records had been stolen from her by the applicant and removed from the Suburb C property without her permission. The original diary was produced by the applicant and counsel for the respondent conceded that the name Mr EE appeared on several pages in Chinese characters. However it was not conceded that the writing was the handwriting of the respondent. When the original diary was put to the respondent she strenuously denied that the name “Mr EE” written in Chinese characters was in her handwriting and maintained that it had been added at a later time by the applicant.
147.The applicant deposed that following settlement of the Suburb C property that he and the respondent moved into the property and that they shared the master bedroom. He deposed that he and the respondent also operated the business from that property. Throughout the trial it became clear on all the evidence that the business vehicles were parked at the Suburb C property.
148.The applicant deposed that his son, Mr AA arrived in Australia in 2004 and lived with the applicant and the respondent at the Suburb C property. He deposed that in or about April 2004 Mr AA moved to another property.
Evidence of the respondent’s son Mr AA about the Suburb C property and the parties’ relationship
149.Mr AA deposed that he came to Australia on 26 March 2004 and moved into the Suburb C property. He deposed that when he arrived he moved into the first room on the left of the first floor of the Suburb C property.
150.Mr AA deposed that he met the respondent on the same day that he moved in and that he “saw” that the parties shared the master bedroom. He described a queen sized bed in the master bedroom and the parties’ clothes and personal belongings being stored there. He deposed that the parties shared a bathroom attached to the master bedroom. In cross-examination the applicant’s son was firm in his belief that the parties shared the master bedroom upstairs at the Suburb C property.
151.Mr AA, without providing any date, deposed that “initially” Ms J and her husband and their daughter moved in downstairs at the Suburb C property.
152.Mr AA deposed that the respondent would give him $50 per week for lunches, money to go out with his friends and that from time to time she paid his bills. The respondent denied that she gave lunch money to Mr AA and denied that she paid his bills.
153.Mr AA deposed that the applicant would bring customers to WPL and that whenever the parties were together at WPL they would be sitting next to one another. Mr AA provided no dates for when this is alleged to have occurred.
154.Mr AA deposed to overhearing discussions and arguments between the parties in relation to the business. This was denied by the respondent in her affidavit.
155.Mr AA deposed that he moved out of the Suburb C property in 2006. The respondent denied this and deposed that she recalled that he did not live at the Suburb C property “for long”. She did not provide the dates when she asserts Mr AA was living at the Suburb C property.
156.The applicant deposed that he and the respondent continued to share the master bedroom at the Suburb C property until October 2014. He deposed that in or about March 2012 he would “sleep in the other room upstairs” because the relationship had become stressful. He deposed that to avoid conflict and arguments he would sleep in the other room so he could rest and sleep “without interference from the Respondent”. He deposed that:
…at that time I considered out relationship had not broken down totally. We still slept together when the Respondent asked me to go back to sleep with her at the master bedroom. We had sex together until we formally separated in October 2014.[7]
[7] Affidavit of the applicant filed 24 May 2017, par 66.
157.The respondent denied these allegations in her affidavit. She was not precise about when the applicant lived at the Suburb C property or where he lived during the time she knew him. At paragraph 8 she deposed that she has “assisted [the applicant] over the years with accommodation”.
158.In cross-examination the respondent maintained that between October 2005 and October 2013 that the applicant lived with many different people, including his wife, his son and that he had also stayed at the Suburb C property at times because she left an empty room there her employees. The respondent maintained that she moved into the Suburb C property before the applicant. She stated that the applicant did not live with her and that he was one of the tenants living in one of the rooms. She also maintained that at one time he lived at the Suburb C property in a downstairs room with his fourth wife, Ms J. She stated that the applicant used the Suburb C property address to receive his mail but that he didn’t have personal things there. She stated that when the applicant had his belongings at the Suburb C property that he was the manager of the business team and that they had a good friendship but definitely not a de facto relationship. The respondent was uncertain about dates but was certain that the applicant did not live at the Suburb C property from 2007.
159.The applicant deposed that after the parties separated in October 2014 the respondent retained the use of the master bedroom at the Suburb C property.
160.The applicant deposed that the respondent began spending less time at the Suburb C property from March 2012 and that she told him that she was living with her son at the Suburb Z property. However he deposed that the respondent continued to spend a “significant amount of time” at the Suburb C property.
161.The applicant relied on Annexure XY-22 which included an invoice from a furniture store dated 15 June 2002 which he asserted was made out under the name of “Mr and Ms [Ying]” with the address as the Suburb C property. There was a second invoice from the store also from June 2002. The respondent was cross-examined about annexure XY-22 to the applicant’s affidavit. The respondent gave evidence that she couldn’t recall if the furniture belonged to her, but that it was possible that the applicant helped her to buy the furniture. She stated that the writing “Mr and Ms [Ying]” was not in her handwriting.
162.The applicant also relied on Annexure XY-23 which was an invoice from the store dated 4 May 2008 with the customer details stating VPL and “[Ms Lang & Mr Ying]” and the Suburb C property address. The parties acknowledge that they were known Ms Lang & Mr Ying. In cross-examination the respondent gave evidence that she recalled this furniture and it was for her master bedroom. She explained that she asked three people to pick up the furniture for her and that the applicant put his name down as he picked up the furniture for her. The invoice noted an item for a “Queen Mattress” which the respondent denied was purchased for the applicant to sleep on the mattress with her. The respondent conceded that the applicant had a back problem.
163.In relation to the Suburb C property the respondent deposed that in or about 2002 she purchased the Suburb C property and that she lived there full-time with family members and tenants from 2002 until about March 2010. She deposed that she lived in the master bedroom and that she rented out the rest of the rooms on the upper floor and the rooms on the ground floor.
164.The respondent deposed that after she purchased the Suburb Z property that she lived there with her son (and her husband Mr L when he was in Australia) from around March 2010.
165.The respondent deposed that after March 2010 she retained the use of the master bedroom at the Suburb C property, staying occasionally and that she kept many of her personal belongings, personal and business records and her father’s and brother’s Australian business records there.
166.Cross-examined about Exhibit C, the Incoming Passenger cards, the respondent conceded that she had consistently recorded her intended address in Australia from June 2003 until January 2015 as the Suburb C property. She maintained that she was “in and out” of the Suburb C property during that time but that she lived at the Suburb Z property from March 2010.
167.She deposed that her son moved out of the Suburb Z property about the end of 2011 when he married.
168.The applicant agreed in cross-examination that the respondent purchased the Suburb Z property at the end of 2009 but maintained that her children lived there and that the respondent lived with him at the Suburb C property. He conceded that the respondent sometimes stayed at the Suburb Z property.
169.The applicant agreed that in 2012 he was out of Australia for a period of 84 days without the respondent and that in 2013 he was out of Australia for a period of 85 days without her. He accepted the evidence in the Department of Immigration Movement Details (Exhibit 12) that in 2014 he was out of Australia for a period of 263 days without the respondent.
Evidence of former tenant Ms DD
170.Leave was granted for Ms DD to give evidence via telephone.
171.Ms DD deposed that she met the applicant and respondent in around July 2003 when she replied to an advertisement in the newspaper for rooms for rent at the Suburb C property. Ms DD deposed that she and her sister rented one of the vacant rooms on the first floor. She deposed that two of her friends rented the other vacant room on the first floor. In cross-examination Ms DD said the advertisement in the newspaper had the number of the applicant and she called him. She stated she paid the rent to the respondent.
172.The respondent deposed that the applicant introduced Ms DD and three other Chinese students to her as prospective tenants. The respondent agreed that Ms DD and her sister rented one of the vacant rooms on the first floor and that two of her friends rented the other vacant room on the first floor.
173.Ms DD deposed that the parties shared the master bedroom on the first floor. She deposed that they had an en suite connected to their bedroom. Ms DD deposed that her bedroom shared a common wall with the parties’ room. The respondent agreed that her bedroom and Ms DD’s bedroom shared a common wall.
174.Ms DD deposed that she saw the parties about four to five times per week when she was living at the Suburb C property. This is denied by the respondent who deposed that she hardly saw Ms DD due to her routine.
175.The former tenant deposed that she overheard several arguments between the parties about money and their businesses. She described the arguments taking place in the early hours of the morning. This is denied by the respondent.
176.Ms DD deposed that when she moved in she thought the parties were a “married couple” as they shared a bedroom. Ms DD in cross-examination gave evidence that she was 100 per cent sure that the parties slept together because she would hear the applicant come home late and he would go into the master bedroom. She stated that the parties were definitely a “couple” and she does not know why the respondent is lying.
177.Ms DD deposed that she moved out of the Suburb C property in February or March 2014. However in cross-examination Ms DD conceded there was a mistake in her affidavit and that she moved out in 2004. She agreed in cross-examination that she had been at the Suburb C property for approximately six months.
178.The respondent deposed that when this former tenant appeared in the Magistrates’ Court proceedings, Ms DD asked her to pay her bond plus interest. Ms DD gave evidence that the respondent owes her money. She denied she was annoyed with the respondent. It was put to Ms DD that her affidavit reflected what the applicant asked her to say because she would like to get some money back from the respondent. She responded that it is not about the money and it is about the truth.
Evidence of Mr BB
179.Mr BB’s affidavit was very brief. He deposed that he has remained friends with the applicant and respondent since 1999. When challenged in cross-examination that he was only the friend of the applicant, he said this was incorrect and that he was friendly with the respondent. The respondent deposed that Mr BB was not her friend.
180.He deposed “I have known of their relationship since 1999 and secondly that they have conducted a Business with each parties [sic] all.” He deposed that he would regularly visit their businesses
181.Mr BB deposed that he would occasionally “give a helping hand to” the applicant “around [WPL] as friendly assistance” and that he would often see the respondent at WPL.
182.Further Mr BB deposed “On most occasions when I visited [the applicant] at [the Suburb C property] he would appear quite affectionate towards [the respondent] [sic] to the best of my knowledge were boyfriend girlfriend respectively”.
183.It was put to Mr BB in cross-examination that his opinion of the nature of the relationship between the applicant and respondent was based on what the applicant told him. He responded “no that’s not correct, I saw”. Mr BB agreed that what he saw was two people who were “close friends like family” and business colleagues. It was further put to him that he could not say whether they were boyfriend and girlfriend as he does not know. He responded “how can I not see they were boyfriend and girlfriend. They were living together”.
184.Mr BB deposed that he would also assist the applicant in his work occasionally and that he visited the Suburb C property and it “appeared” to him that the parties were in a relationship and that the applicant would often “comment on his relationship with me engaging in a joking manner about how hard she was on [the applicant] with working and of such nature.”
185.The respondent deposed that Mr BB was employed by her for a short period of time and that she “sacked” him due to misconduct at work. Mr BB denied being dismissed by the respondent and stated that he quit. It was put to Mr BB that he was dismissed by the respondent due to misconduct and he responded “what misconduct?” and explained that he was a tradesman and only worked part-time when the business was busy.
186.Mr BB denied in cross-examination that the applicant told him what to say in his affidavit. Mr BB gave evidence that the applicant told him that he wanted him to tell the truth about the relationship between the applicant and respondent in the past. He stated he did not know what the court proceeding was about.
Evidence of the applicant’s friend Mr FF
187.Mr FF is a friend of the applicant. He deposed that he first met the applicant in or about June 2011.
188.He deposed that he attended the Suburb C property about two to three weeks after he met the applicant. He deposed that the applicant introduced the respondent to him on his first visit to the property. He deposed the following:
I then visited [the applicant] at the [Suburb C property] many times since June 2011. Both [the applicant] and I would sit and chat in the living room or kitchen at the upper level of the [Suburb C property]. [The respondent] would normally sit with us… [The applicant] would ask [the respondent] to make tea for me when I visited…I also saw [the respondent] cooking for both of them when I visited [the applicant] at the [Suburb C property].
I continue to visit [the applicant] at the [Suburb C property]. However I did not see [the respondent] after 2015. [The applicant] continued to live in the [Suburb C property].
189.In cross-examination he conceded that he was a friend of the applicant. When it was put to him in cross-examination that he had never met the respondent he maintained that he had met her at the Suburb C property. He said that he just said hello to her and maintained that the applicant had asked the respondent to make tea for him. He maintained that he was telling the truth and that he was sure that it was the respondent in the kitchen.
Evidence of former tenant Ms KK
190.Ms KK is a former tenant who lived at the Suburb C property. She deposed that she first met the respondent in or about the middle of November 2012. She deposed she rented three rooms from the respondent on the ground floor at the Suburb C property. She deposed that she rented one room for herself, one for her daughter and one for her niece. She deposed that she rented the rooms for about three months.
191.Ms KK confirmed this during cross-examination and agreed that she was confident it was in November 2012 as the dates were recorded on her passport. The applicant conceded that Ms KK rented three rooms at the Suburb C property but deposed that she rented the rooms from both parties.
192.Ms KK deposed that during her stay at the Suburb C property that the respondent would often come down and have dinner with her and her family and that she did not see the respondent with another man whenever she had dinner with her. She deposed that she did not see the respondent with another man during her stay and she believed that the respondent was single.
193.Ms KK deposed at paragraph 7 that she did not know the applicant and has not met him. In response to this, the applicant deposed at paragraph 94 of his affidavit that he denied the contents of this paragraph. He deposed “I Say that the Respondent told me about this tenant who was renting three rooms at the [Suburb C] property”. It was not clear if the applicant deposed to having met Ms KK.
194.In cross-examination Ms KK was asked how she knew the name of the applicant, as in her affidavit she referred to the applicant by his name. She responded that “I do not know this name. It was [the respondent ] told me [sic] when during the first hearing, “did you know…did you see this man?” and I said no”.
195.Ms KK deposed that when she went upstairs a few times she saw lots of photographs of the respondent on the walls.
Evidence of former tenant Mr GG
196.Mr GG deposed that he is a former tenant of the respondent. Mr GG deposed that he first met the respondent around February 2003 and that he rented one room on the upper floor at the Suburb C property. He deposed that he recalled moving out of the property between the end of 2005 or early 2006.
197.The applicant in his reply affidavit agreed that he first met Mr GG around February 2003 and that he rented a room on the upper floor of the Suburb C property.
198.Mr GG deposed to meeting the applicant at WPL. He deposed that he “seldom” saw the applicant at the Suburb C property as he “seldom” went to the ground floor. Mr GG deposed to meeting the applicant no more than 30 times and that most times he met him at WPL. He deposed that he never saw the applicant in the master bedroom at Suburb C and never saw him going in or coming out of the master bedroom. Mr GG deposed that it was only the respondent’s photographs hanging on the walls on the upper floor and he did not see any of the applicant’s photographs displayed on the walls of the upper floors.
199.Mr GG maintained in cross-examination that he moved into the Suburb C property in 2003. Mr GG was cross-examined about evidence he gave in the Magistrates’ Court in 2016. Annexure XY-37 was a transcript of those proceedings. In those proceedings Mr GG was cross-examined about when he moved into the Suburb C property and it was put to him that it was in 2004 and the transcript records him as saying “I can’t remember the exact time because it’s a long time ago. More than two years. I can’t remember exact time”.
200.Mr GG gave evidence in this Court that “[the respondent] showed me the documents…to see [sic] I moved here 2003. That’s why I say 2003. Otherwise I cannot remember”. He stated the respondent showed him the documents in early 2017.
201.Mr GG in cross-examination agreed that he couldn’t say if the applicant was sleeping in “that room downstairs” and agreed that he couldn’t say what the arrangements were downstairs at the Suburb C property. In cross-examination it was unclear to which downstairs room counsel for the applicant was referring.
202.Mr GG deposed that in the middle of 2004 Ms J and her daughter moved into the ground floor of the Suburb C property. He deposed that Ms J and her daughter were still living at the property when he moved out.
203.The applicant in his reply affidavit appeared to agree, deposing that in May 2004 Ms J and her daughter stayed in one of the ground floor rooms however he deposed that her husband was also staying in that room.
204.In his reply affidavit, the applicant deposed that he saw Mr GG at both WPL and at the Suburb C property. He deposed to talking to Mr GG on many occasions at the Suburb C property. In cross-examination Mr GG agreed he never went into the master bedroom and that he couldn’t say who was in the master bedroom at night.
205.Mr GG alleged that on 3 August 2015 the applicant called his phone nearly 20 to 30 times and that he received an text message from the applicant to the effect of “[the applicant] just wanted to tell you not to be [the respondent’s] witness because if you do you will be telling lies in court and you will be in trouble”. He also deposed to the applicant attending his property that night but that he didn’t open the door and that the applicant has not contacted him since.
206.In the applicant’s reply affidavit in relation to this he deposed to the following at paragraph 102:
…I denied [sic] the contents. I say that in or about June 2015 [Mr GG] had agreed to be my witness and he was prepared to give me his witness statement. I called [Mr GG] several times on 3 August 2015 was to ask [sic] him why he had become the Respondent’s witness. I texted [Mr GG] at night to ask him not give untrue statements to Court.
207.The applicant also denied going to Mr GG’s house. Mr GG’s allegations were not challenged in cross-examination.
208.In cross-examination this witness was extensively cross-examined about two previous affidavits he had made. These were affidavits from July 2015 and January 2016 for the Magistrates’ Court proceedings. In his affidavit for this trial the witness corrected a reference which he had made in an affidavit filed in January 2016. The effect of the correction was to depose to being away from the Suburb C property most weekends rather than staying at that address on weekends. The change did not assist the case of the respondent. He conceded that he could not give evidence about what happened at the Suburb C property on weekends. Nevertheless counsel for the applicant continued to cross-examine him about this inconsistency, suggesting that he was not a credible witness. This was because he had given evidence in a proceeding in the Magistrates’ Court in May 2016 where he acknowledged the truth of his previous affidavit from July 2015. Mr GG explained in evidence that his earlier affidavits were incorrect because he had not paid sufficient attention to the detail.
209.In this trial the witness maintained that after giving evidence in the Magistrates’ Court his memory had improved when he had seen a document produced by the respondent regarding the date that he began living at the Suburb C property. He agreed that the respondent’s lawyer had prepared the affidavit in the trial for him.
Evidence of respondent’s friend and employee Mr JJ
210.Mr JJ deposed that he was an employee and friend of the respondent. He deposed that he first met the respondent in early 2009 when he was interviewed for an administrative position for VPL. He deposed that he did not see the applicant at the interview and he was employed by the respondent after the interview.
211.In contrast the applicant deposed that he interviewed and employed Mr JJ for a position at VPL. The applicant asserts that the first time he met Mr JJ was during this interview. However in cross-examination Mr JJ denied that it was the applicant who interviewed him. Mr JJ deposed that he first met the applicant whilst working when Mr JJ was working as a trainee. He deposed that the applicant “hardly came” to the office in the Suburb NN. While the applicant in his reply affidavit deposed that he denied this, he then went on to depose that as he hardly went to the office in the Suburb NN whilst he was working.
212.Mr JJ deposed that in 2011 to 2012 that the applicant told him “once or twice” that he “was a business partner of [the respondent], both of them were my bosses and he had shares in [the respondent’s] business”. Mr JJ maintained this in cross-examination.
213.Mr JJ deposed to attending annual staff parties held at the Suburb C property from 2009 until at least 2014, but that he did not see the applicant during these staff parties. He also deposed that he did not see the applicant during smaller staff parties at the Suburb C property. The applicant denied there were annual staff parties at the Suburb C property.
[30] Respondent’s final submissions filed 2 February 2018, par 6.
426.However, it cannot be inferred from the photographs that the parties were in a sexual relationship given the other evidence including the denials of the respondent.
Section 4AA(2)(e) the ownership, use and acquisition of their property
427.The parties agreed that the second business was purchased in the name of the applicant and the respondent’s father in September 1999. Annexure XY-4 to the applicant’s trial affidavit was a copy of the contract for the purchase of the second business dated September 1999. The parties agreed that it was sold for $64,000 in February 2002.
428.I can make no finding about whether the applicant contributed financially to the purchase of the business. This is denied by the respondent and there is no evidence to corroborate the assertion of the applicant that he contributed $35,000 to the purchase. The respondent conceded that when the second business was sold that she paid the proceeds into her father’s bank account. The applicant’s uncorroborated evidence is not a basis for a finding that he made a contribution to the purchase of the second business.
429.It was conceded by the applicant that no real property was ever registered in his name or in joint names.
430.Although the names of both parties appeared on the contract note for the purchase of the Suburb C property which was dated 5 March 2002, I accept the unchallenged evidence of the respondent that she was responsible for the payment of the deposit for the purchase and that the contract of sale only nominated her as the purchaser. I accept her evidence that she purchased the Suburb C property and other properties with her own funds and her father’s funds. There is no dispute that the Suburb C property was registered in her name.
431.I accept the evidence of the respondent that she used the Suburb C property for the purpose of parking vehicles associated with the businesses and that the applicant was employed by her and that she maintained a room at the Suburb C property for the employees to stay overnight.
432.I am not satisfied on the balance of probabilities that the applicant made any financial contribution to the real properties purchased by the S Trust or by the respondent.
Section 4AA(2)(f) the degree of mutual commitment to a shared life
433.The respondent subpoenaed the Department of Immigration records of the parties’ Movement Details for the years of the alleged de facto relationship (Exhibit 12) and produced a comparative table which was Exhibit C1 (tendered on 14 December 2017). This was a helpful aid memoir in the form of a table of the parties’ respective departure records of overseas travel to and from Australia between 1997 and 2015. I find on all the evidence and on the evidence of the applicant that during the period of the alleged de facto relationship of over 16 years that the parties did not travel overseas together with the exception of one trip for four days to New Zealand from 29 August until 2 September 2004. The applicant agreed in cross-examination that he was absent from Australia without the respondent for 263 days during 2014. He was also absent from Australia without the respondent for significant periods in 2012 and 2013.
434.I accept the evidence of the Department of Immigration Movement Details (Exhibit 12) which indicate that the applicant left Australia for 36 days between 14 April 1998 and 20 May 1998 and for 11 days between 15 November 1998 and 26 November 1998.
435.I accept the evidence of the applicant that his marriage to Ms G in New Zealand was a genuine marriage and that he travelled with her as husband and wife when he went to visit his parents in China in November 1998. He made a sponsorship application for her to migrate to Australia as his spouse on 14 December 1998. This is inconsistent with his case that he was in a de facto relationship with the respondent from June 1998.
436.I find on the basis of Exhibit 12 and all the evidence, including on the evidence of the applicant, that the parties travelled overseas independently many times during the relevant period of the alleged de facto relationship between 1998 and October 2014, but they did not spend any time together overseas with the exception of the four day New Zealand trip. Both parties made overseas trips to China independently and in the case of the applicant with his third wife during the period when the applicant asserts that he was in a de facto relationship with the respondent.
437.Regarding the four day trip to New Zealand I accept and prefer the evidence of the respondent supported by the photographic evidence that this was a business trip.
438.I find that the applicant sponsored two women to Australia and swore statutory declarations that he was married to them and in a genuine relationship during the period of the alleged de facto relationship. As discussed above, I reject the applicant’s explanation for the sponsorship of his fourth wife Ms J. His explanation that she was related to the respondent and that two of these marriages were effectively “sham” marriages cannot be accepted in the light of his evidence, and the evidence of his son at the Migration Review Tribunal and the Exhibits.
439.Exhibit 3 is the application signed by the applicant to sponsor his fourth wife Ms J for “partner migration” which is dated 12 June 2001. The applicant has recorded his address as the business and indicated that he is a manager by occupation living in a three-bedroom house alone which is owned by him. This is inconsistent with his evidence that he lived at the business with the respondent in a de facto relationship.
440.Exhibit 4 is a Statutory Declaration dated 2 August 2002 in which the applicant stated that he and the respondent were “in the partnership of sharing accommodation only, and that is the basis of our friendship because our mothers are long-time friends. [The respondent] treats me like her brother”. The applicant stated that he lied when he declared this was true. In cross-examination the applicant stated the statutory declaration was “fake” but it is difficult to accept the veracity of his evidence in all the circumstances and particularly having regard to the number of times the applicant made the sponsorship applications for Ms J. The description of his relationship with the respondent in his statutory declaration is consistent with the evidence of the respondent.
441.Exhibit 5 is the decision from the Migration Review Tribunal dated 19 December 2002 regarding the applicant’s application to review the refusal of a partner visa for his fourth wife Ms J. The decision referred to a hearing on 10 December 2002 in which the applicant gave evidence. Of particular note is paragraph 23 of that decision where it states that the applicant was asked about the respondent and “he said she was like an older sister to him and had been very good to him”. This is consistent with the respondent’s case.
442.Exhibit 7 is the applicant’s second application to sponsor his fourth wife Ms J as a partner to migrate to Australia dated 29 September 2003.
443.Exhibit 8 is the applicant’s application to sponsor his fifth wife Ms K as a partner to migrate to Australia signed by the applicant on 1 May 2008. The applicant’s address is recorded as an address in Suburb QQ.
444.Exhibit 11 is a “Statutory Declaration – Married or De Facto Partner (Sponsor)” completed by the applicant and dated 9 April 2010. It relates to the applicant and his fifth wife Ms K. The statutory declaration signed by the applicant refers to the social aspects of the relationship and that the applicant has a commitment to a shared life as husband-and-wife to the exclusion of all others with his fifth wife. The applicant has signed the statutory declaration declaring that the relationship with his fifth wife is genuine and continuing. He also declared that the relationship began in 2008 and that they lived together for “2.5 years”.
445.In that document the applicant declared the following about Ms K in different parts of the document:
When I married with [sic] my wife, [Ms K], I feel so happy, she is so nice and kind. My son lives with us, he respects my wife very much. We love each other very much. I want take [sic] good care of my wife in my rest [sic] life. I can’t live without my wife.
…
…I introduced my wife to all my friends, and every admir [sic] of me also gave their best wishes to us. We always go together to join all kinds of social life, including parties, meetings, etc
….
[Ms K] my wife is the most important people [sic] in my life. She is like a kid [sic] in family. I love her so much. For me, she is the star of my life I can’t imagine life without her. We have a plan to run our own business and I will try my best to support her. I believe our life will be one of the most happy [sic] family in the world. I’ll company [sic] her wherever she wants to go and help her whatever she wants to do. I’ll be the best husband and the best father in our family. I’ll take all responsibility of my family make every happy and joyable [sic]. After my married [sic] with [Ms K] I respect her, love her, take care of her. I want to make her feel happy I want to hand in her hand share every moment we have, feel how much I love her [sic]
446.The applicant’s explanation of the relationship with Ms K was unclear and contradictory. He conceded that he had a sexual relationship with Ms K and stayed regularly overnight at her address but maintained that the sponsorship application was fraudulent. He deposed that the respondent told him that he could have a “sham marriage” but that he could not be in a relationship with Ms K. The answers given by the applicant in cross-examination about this issue were far from satisfactory. His evidence about his relationship with Ms K was vague, inconsistent and lacking in credibility. He conceded that he had a joint bank account with her and that he had changed the address for his mobile phone to her address but that this was essentially in support of a fraudulent sponsorship application. I am not satisfied that the sponsorship application was indeed a fraud but in any event it is clear that the applicant was in a relationship with Ms K which was public and registered by marriage.
447.I do not accept the changed evidence of the applicant’s son, Mr AA whom I find was an unreliable witness. He significantly changed his evidence overnight from asserting that he lived at the residence of Ms K for about a year to asserting that it was only two to two and a half weeks. His demeanour was entirely different when giving evidence the day after he changed his evidence and it appeared that he had spoken with his father about his evidence overnight. He agreed that he had travelled home with his father after giving evidence the previous day. I accept the earlier version of events given in evidence by Mr AA when he asserted that his father was in a genuine relationship with Ms K in 2008 which he recorded in his sworn statutory declaration to that effect. The statutory declaration sworn by Mr AA stated:
In my opinion, their personality match to each other [sic] and [Ms K] is a good girl. She can take good care of my father. They love each other deeply. And now they plan to have a baby. I am so excited. Cause [sic] it means I will become a brother of (he or she). During their relationship I can feel the warm and joyful [sic]. And my father is really is really love [Ms K] so I believe and [indecipherable] the relationship is genuine and continuing.[31]
[31] Exhibit 14.
448.Mr AA initially agreed that this statement was true and correct. I reject the submission made by counsel for the applicant that the inconsistency in the evidence of this witness was due to some confusion between two addresses. I do not accept the evidence of Mr AA regarding his opinion of the relationship between the parties when he lived at the Suburb C property.
449.Given the applicant was an unreliable witness it is unclear whether his statutory declaration about his relationship with Ms K was false as he claims. The evidence of his son Mr AA did not assist the applicant’s case that his marriage to Ms K was not genuine.
450.The applicant relied on WeChat messages between the parties in AnnexuresXY-43 and 44 to his affidavit in reply. I do not accept the submission of counsel for the applicant that the nature of the WeChat messages between the parties in January and February 2015 support a finding of a de facto relationship. The messages are corroborative of a friendship and business relationship but do not contain any language indicative of an intimate personal relationship. In particular Annexure XY-43 to the applicant’s reply affidavit refers to work matters, keys and baby seats and Annexure XY-44 on 4 January 2015 asking for keys when the applicant was intending to return to Australia later in the month. The messages are also consistent with the respondent’s case that the parties had a business relationship.
451.Annexure XY-45 to the applicant’s affidavit filed 13 September 2017, which was accepted by the respondent as a translation of a WeChat message from the applicant to the respondent dated 26 February 2015, stated the following:
You don’t be too much [sic]. All things (meant properties and vehicles) brought by us are not belonged [sic] to you only. You towed away all [vehicles] without my consent were illegal if go through legal action. You took way all keys and kept giving excuses not returning keys for about two weeks already. I have decided to drive back … [sic] …. I must ask them (illegal tenants) to move out from [B Street]. I will not let my room to them. You’d better stop renting to illegal people. I will see how long you can keep telling lies. I will fight for justice. You managed the company in a mess, business account unclear. I think such unreasonable and aggressive person like you, should let the court to decide.
452.This message was relied upon by the applicant but in my view is not corroborative of a de facto relationship. The message is also consistent with the respondent’s case that the parties were in a business relationship.
453.Annexure XY-36 to the applicant’s trial affidavit is a message between the applicant and respondent from March 2015. In that message the applicant said to the respondent “I have decided to go through legal proceeding regard [sic] our Defacto [sic] Relarrionship [sic]”.
454.It was submitted by the counsel for the applicant at page 4 of his written submissions :
The Respondent’s conceded that her response to the Applicant’s WeChat message claiming a de facto relationship was not to deny the existence of such a relationship. Her evidence was that she did not consider it “necessary”. It is submitted that such an attitude is implausible and that the conclusion to be drawn from the failure to deny in the response the claim to a de facto relationship is simply that the failure to deny is because there was in truth such a relationship.
455.This is a misconceived submission which overlooks the fact that the applicant bears the onus of proof.
Section 4AA(2)(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them
456.I accept and prefer the evidence of the respondent corroborated by her first husband Mr D that before she met the applicant she established a small business T Pty Ltd and this was unincorporated. I accept the evidence of the respondent and Mr D that the applicant was employed by them.
457.It is common ground that the applicant purchased a second business with the respondent’s father who lived in China. However there is no corroborating evidence that the applicant financially contributed to the purchase of the business. The applicant maintained that the proceeds of sale of the business were used to purchase the Suburb C property, but this is denied by the respondent who maintained that her father was repaid for the investment he made in the second business and the Suburb C property was purchased with funds from the sale of other properties, and funds from her father. I accept and prefer her evidence about the sale of the business and the purchase of the Suburb C property.
458.I reject the written submission of counsel for the applicant that “it is clear that the applicant was at the very least a vital contributor to the financial success of these enterprises, moreover there is no suggestion other than that his income was fundamentally dependent on those enterprises.” There is no financial supporting evidence about the success or otherwise of the businesses. There was no dispute that the parties at some time were both directors of UPL and VPL. There is no dispute that the parties were involved in WPL with other business partners. I can make no finding about the reason for the applicant’s involvement as a director of UPL or VPL because of a lack of clear evidence. There is no evidence of any financial contribution by him.
459.The evidence is insufficient to make any finding about any financial contribution made by the respondent to the purchase of the Suburb C property or the purchase and operation of WPL. On his own evidence the applicant was working seven days a week at the first business when WPL was sold. The evidence of the applicant that the respondent was responsible for the financial management of all the businesses is consistent with her version of events and her evidence about the businesses previously outlined.
460.There is no independent evidence about any financial contributions to the businesses made by the applicant. Both parties agree that he worked for the initial businesses, but the circumstances of his remuneration for this work remain opaque. Exhibit 9 was the applicant’s Employees Hours and Wages Record Book for the period March 2007 until April 2008. This document records the applicant’s address as Suburb QQ and his employer as XPL Pty Ltd. In cross-examination the applicant maintained that this was a false document to support the sponsorship application for Ms K. I can make no finding about this document as the evidence about it was unclear.
461.I can make no finding about what financial or other contribution was made by either party to those businesses. The evidence was vague and unclear about what financial contributions were made by both parties and the documentary evidence was also unclear. There was no evidence from any of the other partners in WPL. I am not satisfied on the balance of probabilities that I can make any finding about the degree of involvement of the applicant in those businesses other than he was employed by the respondent.
462.With the exception of UPL conceded by the respondent, there is no evidence of any joint banking accounts for the parties. However, this bank account for the business in any event referred to the parties as “Mr Ying and Mrs Lang.”
463.There was limited evidence from the applicant about the domestic arrangements of the alleged de facto relationship, but I cannot be satisfied on the balance of probabilities that there was any financial dependence between the parties or interdependence apart from the business relationship which was unclear.
464.I accept the respondent’s evidence that between 1999 and 2010 she and her trustee company R Pty Ltd purchased various properties including the Q Street property, the Suburb C property and the Suburb Z property. There was no reliable evidence about the purchase of the other real properties registered in the name of the respondent’s son and her nephew. On all the evidence I cannot make a finding that the applicant has made any financial contribution to the purchase of these properties given my finding that he was an unreliable witness and the fact that he adduced no corroborating documentary evidence.
465.The applicant deposed that he registered a new company XPL in or about 15 November 2002 to take over WPL from the partnership by paying off all the outstanding rent and outgoings of WPL in the sum of about $30,000. There is no documentary evidence to support this. He deposed that he was the sole director and shareholder of that company and provided an extract at Annexure XY–13 of his trial affidavit.[32] He deposed that WPL changed its trading name after XPL took over. He deposed that at this time he was a senior employee first business and that he worked seven days for that business. He also deposed that the respondent prepared his work schedule. With the exception of the applicant’s claim that he paid $30,000, this evidence of the applicant is consistent with the respondent’s case.
[32] Affidavit of the applicant filed 24 May 2017, par 31/
466.The applicant deposed that WPL was sold in December 2007 for $380,000 and that it was settled by the respondent who kept the proceeds of sale and invested them in other properties registered under her name as trustee for the family trust, her son and her nephew. He deposed that at that time of the sale and unknown to him the respondent and her brother were directors of the XPL. There is no corroborating evidence of any financial contribution by the applicant. This evidence is also consistent with the respondent’s case.
Section 4AA(2)(i) the reputation and public aspects of the relationship
467.There was virtually no reliable evidence about the reputation and public aspects of the relationship between the parties which would support a conclusion that they were living in a de facto relationship.
468.Considering the assertions of the applicant that the duration of the de facto relationship was over 16 years there is a paucity of evidence about the reputation and public aspects of the relationship which could form the foundation of a finding of a de facto relationship on his case as opposed to a close friendship and business relationship on the respondent’s case. The lack of this type of evidence is significant in the context of an assertion that the de facto relationship was of 16 years duration.
469.The applicant maintained that the parties’ business lives and personal lives were always intertwined because they often worked seven days per week in the businesses and that most of the time they spent together was at work.[33] He maintained that they celebrated the respondent’s birthday and also entertained friends together with staff. Annexure XY-27 to the applicant’s trial affidavit is a dark photocopy of undated photographs of the parties taken with other people. The lack of clarity in the photographs does not allow for any finding or inference to be drawn in favour of the applicant’s case. The photographs are also consistent with the respondent’s case that the parties were friends and business associates.
[33] Affidavit of the applicant filed 24 May 2017, par 71.
470.The applicant deposed to attending a wedding in 2011 with the respondent and receiving an invitation addressed to both of them. He maintained that they began to refer to each other as husband and wife over the period of living together. This was not supported by any other evidence. He maintained that most of the photographs taken together during the relationship were kept by the respondent and that he had limited photographs.
471.The applicant relied on self-serving evidence of an undated registration form from hospital where the respondent is recorded under “Next of Kin” as his “girlfriend”. The letter from the hospital requesting him to complete the registration form is dated 7 June 2002.[34] In cross-examination the applicant maintained that he went to the hospital to obtain evidence about his medical condition in support of the fraudulent sponsorship application and that the form was completed by the respondent. This explanation is incredulous given he asserted that he was seeking to convince the Department of Immigration that he was in a genuine marriage with Ms J.
[34] Affidavit of the applicant filed 24 May 2017, Annexure XY-29
472.In contrast to this evidence are the denials of the respondent, all the evidence about the parties’ marriages to other spouses, the respondent’s perseverance in his sponsorship applications for his fourth wife and his fifth wife, the respondent’s photographs with her husbands, the significant time that the parties travelled independently overseas and the paucity of evidence about domestic and social activities as a couple.
Magistrates’ Court decision
473.The applicant relied on Annexure XY-41 of his affidavit filed 24 May 2017 which is an extract of a decision made in relation to the last intervention order proceedings. At page 180 the Magistrate found:
In my view, notwithstanding all that [the respondent] has put and all her witnesses have said, I consider there is a strong circumstantial case for establishing the existence of an intimate relationship which included financial commitment and co-dependency, and I so find.
474.The applicant submitted in written submissions under the heading of “Issue Estoppel” that:
Whilst the task of [the Magistrate] differed from the task before this Court nevertheless there has been a determination by a Court of relevant jurisdiction in proceedings between the identical parties that the parties were in a relationship that:
a) was intimate;
b) was co-dependant; and
c) included financial commitment
and not only would it be contrary to the interests of justice for this Court to differ from the findings made moreover the Respondent is accordingly estopped from denying those matters in these proceedings. Though the language is somewhere different, these factors each come into play in the context of the criteria set out under section 4AA(2).
475.I reject that submission. The evidence in this trial is the relevant evidence for the determination of the threshold issue under the Act.
476.The Magistrates’ Court was not exercising jurisdiction under the Act and as submitted the task in determining the issues in the Magistrates’ Court was entirely different from the task required by this Court in determining the existence of a de facto relationship under the Act. The evidence of that finding is not admissible under s 91 of the Evidence Act 1995 (Cth).
Conclusion
477.The applicant was an unreliable witness and I prefer and accept the evidence of the respondent overall notwithstanding some of the credibility issues I have remarked upon in my assessment of her evidence.
478.The applicant has not discharged the onus of proof on the balance of probabilities that the parties were in a de facto relationship as defined by s 4AA of the Act. This means there is no jurisdiction to make the declaration or the other orders he seeks.
479.I propose to dismiss the applicant’s Further, Further Amended Initiating Application filed 8 December 2017 with the exception of the paragraphs concerning the s 128 Certificate under the Evidence Act 1995 (Cth) and costs.
480.The respondent bears the onus of proof for a declaration that a de facto relationship never existed. Given my determination that the applicant has not proved his case, it is unnecessary to consider making the declaration she seeks and I propose to dismiss her application contained in her Further Amended Response filed 9 January 2017.
481.All other outstanding applications will be dismissed with the exception of the competing costs applications. Each party included an application for costs in their respective orders sought but at this stage there has been no hearing on the question of costs.
I certify that the preceding four hundred and eighty one (481) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 1 October 2018.
Associate:
Date: 1 October 2018
Annexure A
The applicant relied upon the following documents:
·Further Further Initiating Application filed 13 December 2017;
·Affidavit of the applicant filed 24 May 2017;
·Affidavit of the applicant filed 13 September 2017;
·Affidavit of Mr AA filed 24 May 2017;
·Affidavit of Mr BB filed 24 May 2017;
·Affidavit of Ms CC filed 24 May 2017;
·Affidavit of Ms DD filed 24 May 2017;
·Affidavit of Mr EE filed 24 May 2017;
·Affidavit of Mr FF filed 1 December 2017;
·Case Outline filed 4 December 2017.
The respondent relied upon the following documents:
·Further Amended Response filed 9 January 2017;
·Affidavit of the Respondent filed 7 June 2017;
·Affidavit of Mr GG filed 5 June 2017;
·Affidavit of Mr GG filed 5 June 2017;
·Affidavit of Mr D filed 5 June 2017;
·Affidavit of Mr II filed 14 June 2017;
·Affidavit of Ms KK filed 5 June 2017;
·Affidavit of Mr L filed 5 June 2017;
·Affidavit of Mr JJ filed 5 June 2017;
·Affidavit of Mr H filed 2 December 2017.
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