Jones & Michetti [2022] FedCFamC1F 771

” ORDERS

TVC 1515 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS JONES Applicant AND: MR MICHETTI Respondent

ORDER MADE BY:
MCNAB J

DATE OF ORDER: 21 OCTOBER 2022

THE COURT DECLARES THAT:

Pursuant to ss 90RD and 4AA of the Family Law Act 1975 (Cth) no de facto relationship existed between the Applicant and the Respondent between 2003 and 23 November 2019.

THE COURT ORDERS THAT:

The Applicant’s Amended Initiating Application filed 23 November 2021 be dismissed.Within 14 days the Respondent file and serve any Application for costs, with supporting affidavits and written submissions limited to 4 A4 pages.

The Applicant file any response to an application for costs within 28 days.

The hearing of any Application for costs be fixed for hearing on a date to be advised after 28 November 2022.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Jones & Michetti has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT

McNab J:

INTRODUCTION

I am required to determine whether the parties were in a de facto relationship within the meaning of s 4AA of the Family Law Act 1975 (Cth) (“the Act”).
Each party agrees that they were in a relationship for about 16 years, however the respondent denies that there was ever a de facto relationship and seeks by his response filed on 27 January 2022, a declaration that a de facto relationship never existed.

BACKGROUND

The facts in this case are not straight forward – not in the sense they are particularly difficult to identify, but in the sense that they involve the complicated arrangements that these parties have entered into.

In about 2002, the applicant was a male and entered into what was to become a long term de facto relationship with Ms B (“Ms B”) until about mid-2021. They lived together on a genuine domestic basis, first in a house in Suburb C and then subsequently from about 2011 in Suburb D. The applicant described her relationship with Ms B as “polyamorous”.

Whilst the relationship between the applicant and Ms B was acknowledged by the parties and Ms B to be a de facto relationship, it was also an open relationship in the sense that they both had sex with other people including the respondent. At the time the relationship between Ms B and the applicant commenced, Ms B was working as a manager in industry, and also as a sex worker. The applicant was an educator but left that work to work in hospitality and as a sex worker for a period. Ms B continues to work as a sex worker. At the time these proceedings were issued, the applicant was working as a sex worker. The respondent holds interests in hospitality businesses.

In about 2003, Ms B placed a post on a gay dating website in the then name of the applicant. The respondent responded to that post and met up with the applicant and Ms B. A sexual relationship commenced between all three of them, with the respondent spending weekends at the Suburb C house occupied by the applicant and Ms B. During that time neither of the parties or Ms B were in an exclusive sexual relationship and all of them had sexual relationships with others. It is alleged by the respondent that during this time he was involved in steady long term relationships with other men.
The relationship between the parties and Ms B was not solely about sex. They seemed to get along and, as a result of the generosity of the respondent, enjoyed an active social life including going out for dinners with other people and going on overseas and interstate holidays, largely paid for by the respondent. The respondent plainly enjoys entertaining, eating out and spending time in the company of others at restaurants and nightclubs where he would often act as the host and pay for others. He was part of a dining club which involved a group of friends who would attend restaurants and the group from time to time included the applicant and occasionally Ms B as his guests. It is also apparent that he extended his generosity to a wide circle of friends and business associates, irrespective of whether he was in a sexual relationship with them.

The relationship involving the applicant, respondent and Ms B continued until sometime in 2005. After a break of about 3 months, the applicant and respondent started seeing each other again with the applicant staying over at the respondent’s house about once per week (and very occasionally up to 3 nights). Ms B gave evidence that the continuation of that relationship was with her permission. The relationship between the applicant and Ms B continued throughout, with the applicant residing with Ms B and sharing the costs of that household.

In about 2011, Ms B purchased a property in Suburb D which she and the applicant lived in. The applicant gave evidence that she was responsible for one-third of the mortgage repayments, and contributed to all other outgoings and expenses on the Suburb D property. The applicant was not on the title for this property, but she and Ms B entered into a “Deed of Family Agreement”, which purports to provide that the applicant was entitled to one-third of the value of the property in the event of separation or sale.[1] The domestic duties were shared, as was the care of their pets.
Through the period from 2005 to 2018, the applicant and respondent spent time together, socialised and travelled overseas together – sometimes with Ms B joining the parties.
In 2018, the applicant commenced the process of transitioning to a female. This involved surgical procedures and care in hospital. Those procedures were performed overseas. The applicant gave undisputed evidence that the respondent paid for a significant portion of her gender realignment surgeries, and other related costs, amounting to over $30,000.
In about mid-2019 the applicant met Mr E. During cross examination, the applicant stated that she met Mr E in mid-2019 through Ms B. Mr E was a sex worker at the time, and Ms B was paying for his services by making weekly payments to him and the applicant was occasionally involved in sex with him. The applicant described the relationship between Ms B and Mr E as a “sugar relationship”. She became involved in a relationship with Mr E in the absence of any sexual relationship involving Mr E and Ms B late 2019.[2] Ms B accompanied the applicant and Mr E on a holiday to Country X in 2019. This relationship lasted around 2 years.

It is agreed that the relationship between the applicant and respondent concluded on 23 November 2019.
The Applicant gave evidence that she was subjected to a serious assault by Mr E in mid-2021, in what she described as drug fuelled assault. Mr E was charged with offences arising from that incident. This incident marked the end of the relationship with Mr E, although the applicant’s bank record did show funds being transferred by the applicant to Mr E after that date. The applicant subsequently moved to live in City F, where she works as a sex worker.

THE DEFINITION OF DE FACTO RELATIONSHIP

Section 4AA of the Act provides:
Meaning of de facto relationship

(1) A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and

(b) the persons are not related by family (see subsection (6)); and
(c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has effect subject to subsection (5). Subsection (5) provides as follows:
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.

Some elaboration of the circumstances relevant to the consideration of whether people have a de facto relationship is contained in S 90RD(2). That section provides as follows:
Those circumstances may include any or all of the following:
(a) the duration of the relationship;

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

(c) whether a sexual relationship exists;
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;

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

(f) the degree of mutual commitment to a shared life;
(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;

(h) the care and support of children;

(i) the reputation and public aspects of the relationship.
Statutory guidance as to the interrelationship of these circumstances, and the weight to be given to them, is provided in subsection (3) of s 4AA as follows:
No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
Subsection 4AA(4) provides:
A court determining whether a de facto relationship exists is entitled to have regard to such matters, and attach such weight to any matter, as seem appropriate to the court in the circumstances of the case.
Thus, whether a de facto relationship, as defined, exists will depend on an assessment of all of the circumstances of the relationship, each to be given the weight the court thinks appropriate.
Importantly, s 4AA(5) (b) makes plain that a de facto relationship can exist even if one of the is legally married or in de facto relationship with someone else (as is the case here with the applicant in a de facto relationship with Ms B.).
It terms of orders that may be made consequent on this application; s 90RD(1) provides:
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.
The applicant relied upon the following documents in support of her case:
(1) Initiating Application filed 22 November 2021
(2) Amended Initiating Application filed 23 November 2021

(3) Affidavit of Ms Jones filed 22 November 2021

(4) Financial Statement filed 22 November 2021

(5) Affidavit of Ms Jones filed 29 January 2021

(6) Applicant’s Outline of Case filed 2 February 2022

(7) Affidavit of Ms Jones filed 30 March 2022

(8) Affidavit of Ms B filed 30 March 2022

(9) Affidavit of Ms H filed 30 March 2022

(10) Affidavit of Ms Jones filed 4 April 2022

(11) Affidavit of Mr J filed 4 April 2022

(12) Further Affidavit of Ms Jones filed 26 August 2022

(13) Applicant’s written submissions filed 29 August 2022

The respondent relied on the following documents in support of his case:
(1) Response to Initiating Application filed 25 January 2022
(2) Affidavit of Mr Michetti filed 25 January 2022

(3) Respondent’s Outline of Case filed 2 February 2022

(4) Affidavit of Mr Michetti filed 4 May 2022

(5) Affidavit of Mr K filed 3 May 2022

(6) Affidavit of Mr L filed 4 May 2022

(7) Affidavit of Mr G filed 3 May 2022

(8) Affidavit of Ms O filed 3 May 2022

(9) Affidavit of Mr M filed 3 May 2022

(10) Respondent’s written submissions filed 5 September 2022

The applicant was formerly represented by GG Lawyers, who withdrew in mid-2022. The applicant stated that while they were not representing her for the proceeding, they were still providing her with some advice to assist her in running her matter, and also advising her in relation to a property claim that she has against Ms B under s 90SM of the Act.
ISSUES IN DISPUTE

The issues in dispute in this matter are relatively narrow.
The parties agree that:
(1) The relationship was for a period of 16 years, save for a few months in 2005;
(2) They spent time together over the course of their 16 year relationship, usually one night a week and occasionally an additional night, although there is dispute about whether it was more than one night on average. From 2003-2005, these nights were at Ms B’s residence while they were in a polyamorous relationship with her, and after 2005 at the respondent’s residence;

(3) There was no stated intention that they live together at any point;

(4) There was a consistent sexual relationship throughout the relationship, although it was not monogamous;

(5) The respondent contributed to the applicant’s transition surgeries, overseas travel and accommodation, and other “dating” expenses, including restaurants, holidays, expensive gifts, etc;

(6) There is no jointly owned or acquired property;

(7) The parties celebrated birthdays, anniversaries, and Christmases together throughout the 16 year relationship, together with Ms B;

(8) The respondent included the applicant as a beneficiary in his Will, along with members of his family and close friends, and removed her shortly after separation; and

(9) The relationship is not registered, and there are no children.

The issues in dispute in this case include:
(1) Whether their relationship amounts to a de facto relationship for the purposes of the Act;
(2) Whether the applicant was financially dependent on the respondent in his funding of her lifestyle, or whether the she benefitted from the respondent’s generosity, similar to all of his close friends;

(3) The extent to which the parties were living together on a genuine domestic basis;

(4) Whether they spent one night together each week, or an average of 1-3 nights together each week; and

(5) How family members and friends perceived their relationship, and whether it was seen as a settled relationship with the parties living together on a genuine domestic basis.

RELEVANT FACTS

The evidence in this case is extensive, and I have not referred to all of the evidence as I do not need to adjudication on every matter raised: Truman v Truman [2008] FamCAFC 4; (2008) 38 Fam LR 614 at [214] – [217] and cases referred to therein.

The respondent alleged that the relationship was casual, and there was no commitment to mutual life other than occasional dates and holidays, which he primarily paid for. He does not dispute that it was a loving relationship in which the parties cared for one another; however, he contended that it was a long term, casual relationship and not a de facto relationship.

Neither party claimed that they lived together, and both agreed that they spent one night a week together, occasionally more.

The respondent said that he considered Ms B to be the applicant’s de facto partner, given she and the applicant lived together, and he considered himself to be “the person on the side”.
Ms B and the applicant lived together, and had joint interests in property by way of a Deed of Family Arrangement. The applicant and Ms B’s relationship spanned 19 years from 2002, ending in around mid-2021, after being “on-off”. The applicant gave evidence that she was, at the time of the trial, in the process of negotiating a property settlement with Ms B.

The applicant gave evidence that this was one of several committed relationships she had during the time she was with the respondent, including Mr E, who she was with for the period 2018 to mid-2021. The parties separated due to an incident of violent assault, for which Mr E has since been convicted.

Similarly, the respondent gave evidence that he had three significant relationships totalling nine years during the 16 year period that he and the applicant were in a relationship: Mr P from 2003 to 2007, Mr Q from 2006 to 2009, and Mr R from 2014 to 2016. In cross examination about the nature of these relationships, he gave evidence that one of the three relationships was similar to the relationship he shared with the applicant, in that they travelled overseas together and frequently went out for dinners. When asked, the respondent said that on these trips with these other partners, they each paid their own expenses.

Ms B gave evidence that in 2003, the applicant wanted a male partner, and she assisted Ms Jones in meeting the respondent, which occurred in early 2003. From 2003 to 2005, it is undisputed that there was a polyamorous relationship between the applicant, Ms B and the respondent, and after the breakdown of the polyamorous relationship, Ms B told the applicant that she had no issue with her continuing to see the respondent.
Relevant Factors

Duration of relationship

As noted above, the parties met and commenced a relationship in 2003. That commenced as polyamorous relationship involving Ms B. In 2005, the relationship that was characterised by the applicant spending time at the respondent’s house commenced.
The respondent ended the relationship with the applicant on 23 November 2019.
Nature and Extent of a Common Residence

The applicant and respondent have never lived together. The respondent gave evidence that Ms B asked for the applicant to move in with him on occasions when Ms B and the applicant were fighting. He annexes one such text message conversation to his affidavit, to which he responds to the request, “Not possible. I love my own space too much xxx”.[3] The respondent said there was never any serious discussions about them spending more time together or sharing a residence.

The applicant lived in a rental property in Suburb C with her de facto partner, Ms B, and in 2011 moved to a property purchased by Ms B in Suburb D. In cross examination, the applicant gave evidence that she was responsible for one-third of the mortgage repayments, and a share of other outgoings and expenses on the Suburb D property. The applicant was not on the title for this property, but she and Ms B entered into a Deed of Family Agreement as described by the document they signed, through which she said entitled her to one-third of value of the property in the event of separation or sale.[4]

The applicant gave evidence that during her relationship with the respondent, in the period of 2003 to late 2005, the respondent would generally spend Saturday night and Sunday through the day, and on occasional nights during the week, with the applicant and Ms B at the Suburb C property.[5]

The applicant further said that the two of them would often spend time together during the day, such as going for meals or going to the gym. The respondent said he often did these things with all of his friends, and the applicant was a part of his busy social life amongst other people.

The applicant gave evidence that she had her “own space” in the spare bathroom at the Suburb S property, where she kept her makeup and toiletries on a permanent basis. She conceded during cross examination that this only occurred in the period following her transition. She did not store her makeup in the respondent’s bathroom at his residence.
She gave evidence that they each had keys to the other’s property “at times”, which she conceded was only for a period of a few weeks in the capacity of house minding, while the other went overseas. The respondent gave evidence that the applicant was only asked to house sit for the respondent on one occasion, despite the respondent going overseas on multiple occasions throughout their relationship.

Similarly, in her affidavit evidence the applicant claimed that the respondent had a key to the safe at the Suburb D property, but during cross examination, conceded that it was Ms B who gave him that key, for the purpose of restricting the applicant’s access to the safe, to prevent her from accessing illicit substances which were kept inside as she had a substance abuse issue at the time.

The applicant was asked about the period when she asked the respondent to care for the applicant and Ms B’s dogs at the Suburb D property while she was away. Ms B prepared detailed instructions to the respondent about the care of the dogs, and general information about the property, including how to turn off the alarm, and how the dogs were fed. The applicant was asked why, if she was alleging the respondent spent so much time with the dogs and at the property, had he needed such detailed instructions. She gave evidence that Ms B, by virtue of her job as a manager, insists on things being “done properly” and the instructions were prepared and given to the respondent primarily to appease her. Ms B confirmed this was the primary reason for these instructions in her cross examination. The fact that the respondent cared for the applicant and Ms B’s dogs at the Suburb D house is not determinative of the question of common residence.

The applicant gave evidence that she would often take her dogs with her to the respondent’s property while staying there overnight, and the respondent cared for them as he did his own during those periods. The respondent agreed that she would usually bring one dog over, and occasionally would ask to bring both over. The respondent gave evidence that he later found out that the applicant would bring both dogs on nights when Ms B was working as a sex worker. The applicant frequently referred to the respondent as the dog’s “uncle”, indicating they had a strong bond. Again, I do not regard the fact that the applicant stayed at the respondent’s house with her dogs as a decisive indicator of shared residence.

The applicant stated that she would often cook meals for the respondent while she was at his property, often including extra portions for him to freeze and eat throughout the week while she was absent. This was denied by the respondent who gave evidence that the applicant did not cook food for the respondent to freeze: rather if there were leftovers when the applicant cooked meals, those leftovers would be frozen. He said that around once per month, the applicant brought leftovers to his house to freeze, however, often these were meals cooked for Ms B. The respondent gave evidence that he often used meal services or takeaway. He said that if the applicant cooked, he would assist her.
The applicant claims that she and the respondent threw dinner parties together at the Suburb S property, during which she did the cooking and cleaning. She also gave evidence that the respondent always celebrated Christmas and Boxing Day with the applicant and Ms B at Suburb C, and later the Suburb D property. The respondent denied that dinner parties were thrown by them as a couple at his house but that the applicant was a guest. He gave evidence that these parties were often catered, and all guests assisted with the clean-up before they went out to a club.
The respondent has resided in Suburb S since 2003. This property was solely purchased and owned by him, and he is solely responsible for all mortgage repayments and outgoings. The applicant acknowledged in the hearing that she made no financial contribution to the relationship.

As to the amount of time that the parties spent together, the respondent said that that he was regularly on holidays including overseas holidays. It was put to the applicant that over the duration of the relationship, the respondent had taken multiple overseas holidays. Seven of those multiple trips were with the applicant, and two of those seven involved the applicant’s gender realignment surgery. The respondent gave evidence that a number of those trips were extended – one without the applicant save for a short time at the end of it, was for seven months. Otherwise, the respondent has given evidence that he was also carried on relationships with three other men (at different times) during the 16 year duration of his relationship with the applicant. He also had numerous other sexual partners. These matters were not denied by the applicant.

The respondent gave evidence in his affidavit that in 2004 when he met the applicant and Ms B for drinks, he learned that Ms B, the applicant, and three other people were all in a polyamorous relationship at that time.[6]
The applicant stated that their time together was restricted as her possessions were predominantly at her own property, as were her dogs who required frequent care, and her workplaces, other than the U Venue where she worked in around 2014, were much closer to her residence in Suburb D.

The applicant was cross examined on numerous communications in which the applicant and respondent attempted to arrange time together, and the applicant conceded that it was often difficult, due to them both having busy work schedules. When asked, she was unable to provide any evidence of times when she and the respondent spent more than one or two nights together. The respondent’s evidence is that it was primarily one, and occasionally two nights that they spent together. He referred to these nights as “date nights”.

The fact that their time together had to be arranged suggests that they were not living together as a couple on a genuine domestic basis.
Both parties had all mail directed to their separate residences, all registrations were to their own addresses, and kept all property at their own residence, other than a few toiletries.
Further, regarding her use of the property, the applicant gave evidence that she assisted with the gardening and landscaping of the respondent’s property, including installing a goldfish pond and planting several new plants. She also referred to being able to invite guests over to the respondent’s property with the respondent’s consent, which she did several times. There were photos of the applicant on display in the home.
As to the applicant’s evidence that members of her family had stayed on occasion at the respondent’s home – that was on the applicant’s own evidence with his permission and on a limited number of occasions.
The parties agreed that they each attended events at the other’s property, but these were not frequent, save for Christmases at the applicant’s house.
In my view, the evidence regarding common residence points away from a de facto relationship as the parties did not appear to be living together on a genuine domestic basis. Rather, they had their own respective residences, which they spend the majority of their time, and made financial contributions to. The evidence that the applicant treated the respondent’s home as a shared residence is superficial and more indicative that she was a guest rather than a habitual resident. This is not determinative of whether there was a de facto relationship, but one of the factors to be considered. I accept that a person can have two homes and be in more than one relationship; however, I do not find that the parties treated the respondent’s residence as a shared residence when the applicant stayed there.
Existence of a Sexual Relationship

In relation to their sexual relationship, it is undisputed that the parties had a sexual relationship throughout the 16 year relationship.
In response to the respondent’s claims that the sexual relationship ceased or became significantly less frequent after the applicant’s transition, the applicant submitted that from the period of early 2018, following her transition, to late 2019, the date of separation, they had sex on multiple occasions. She submitted that the reduction in frequency is attributable to her recovery from extensive surgeries, and the respondent spending three months overseas during this period.

In cross examination, the applicant contended that their relationship had “rules”, primarily that they would only have casual sex with other people. If they intended to have a more serious relationship with another person, the applicant said they agreed they would discuss it before proceeding. The applicant gave evidence that she was unaware that the respondent had several other long term relationships, and she was shocked and “devastated” by the fact when she found out by reading his affidavit filed 25 January 2022. The respondent disputed this, and stated the only rule they had was to tell the other about their sexual relationships only when asked. He annexes a text conversation to this effect to his trial affidavit, stating “We actually don’t have to tell each other what we do, that’s our rule…” The respondent gave evidence that he encouraged the applicant to have casual sex because he wanted the relationship to remain “open and without commitment”.

The applicant gave further evidence that other than Ms B, the only other person she had a long-term relationship with was Mr E. The details of this relationship are set out above.
In her affidavit, the applicant gave evidence that her relationship with Mr E was a source of strain on the relationship between the applicant and respondent. She said the respondent told her that he was not interested in being “her third partner”.

There is plainly a sexual relationship between the parties, but this is not determinative given the number of sexual relationships they had with others.
Degree of Financial Dependence

The parties agreed that they kept their regular finances separate, and neither was reliant on the other for their day to day expenses.
The applicant contended that she was financially dependent on the respondent to some extent throughout the relationship, primarily for “medical, holiday and entertainment expenses” which she referred to as essential for her lifestyle. The respondent submitted that the applicant was simply “benefitting from his generosity” in the same way as many of his close friends.
She conceded they had no joint bank accounts or property, but gave evidence that the respondent deposited money into her bank account on a few occasions, but that he would frequently spend money on her. She submitted that over the relationship, he spent in excess of $150,000 on her.

She provided examples, including that the respondent would pay for frequent shopping trips, designer bags and jewellery, etc. She conceded on cross examination that this was primarily after her transition. When asked why he had spent money to that extent, the respondent stated this was to “cheer her up” and help her feel more comfortable as a woman. She listed a number of expensive gifts at paragraph [45] of her trial affidavit, which are undisputed. The respondent said the parties generally exchanged gifts on birthdays and Christmases, but otherwise, he did not often purchase expensive gifts for her, prior to her transition.

The applicant sets out all the holidays that she and the respondent went on at paragraph [55] and how these were paid for, submitting that the respondent paid for the majority of expenses on these occasions. Counsel for the respondent noted that of the multiple holidays that the respondent went on in the 16 year period, the applicant was only taken on nine of them, and two of those nine were for the purpose of her realignment surgeries.
The applicant gave evidence that the respondent paid for a significant portion of her medical expenses and the cost of her transition including:
(1) Therapy beginning in 2016;
(2) Paying for all travel expenses for them to travel to Country V and Country W for the applicant’s transition surgeries;

(3) Contributing approximately $30,000 towards various surgeries; and

(4) Various dental and other medical appointments throughout the relationship.

The respondent gave evidence that the primary reason he was so willing to contribute to the transition costs was his concerns about the applicant’s poor mental health at the time. He gave evidence that she had indicated “life isn’t worth living if [she couldn’t]… transition”, and the applicant telling him that 50% of transgender people commit suicide.
The respondent also contended that $10,000 of the monies contributed to surgery was a loan. The applicant gave evidence that she agreed it was initially a loan, but her understanding was that there was no expectation to pay it back. She gave evidence that the respondent had told her that she did not need to repay the money. However, after separation, the respondent requested she repay this amount, which she then made efforts to do.
There is no doubt that the respondent was generous towards the applicant and acted in a caring way and that forms part of the matters that I take into consideration in determining the issue. However, the respondent’s generosity must be put in context where he is a relatively well-off person with the capacity and inclination to be generous, not just to the applicant, but to others as well.

Ownership, Use and Acquisition of Property

It is agreed that there was no joint ownership or acquisition of property, save that the applicant gave evidence that the respondent often spoke to her about cars and other property he intended to purchase, and asked for her input. She gave evidence that the respondent had told her that he intended to leave his property to her in his Will, however she conceded she had never seen the Will until it was produced during the hearing. This is discussed in more detail below.
It is undisputed that each party paid the expenses in relation to their own property, and did not contribute to the outgoings of the other’s property. The respondent described their use and enjoyment of the other’s property was limited to that of “an invited guest”.

Degree of Mutual Commitment to Shared Life

The applicant submitted there was significant commitment to a shared life. The respondent submitted they largely kept their own separate lives.
The applicant stated that she and the respondent spoke about remaining together for the rest of their lives. She exhibited a number of cards she received from the respondent to her affidavits echoing this sentiment, and I set out a number of these below:[7]
Dear [Ms Jones]… Thank you for being a wonderful, sexy, fun to be with partner over the last 14 years. It has been an amazing journey I look forward to the future with you in my life. Lots of love always, [Mr Michetti]

To my Darling [Ms Jones]… Thank you for a wonderful and sexy 15 years together, I look forward to another 15 years of continued new experiences with you…

…I look forward to the next 13. I can’t imagine it without you.
The respondent also annexed a number of cards from the applicant, and I have set a few of these out below:
Thanks for another year of fun, laughter and of course – naughtiness!!… “Thanks for two great years of sex, love, fun, partying and friendship. I hope we can continue the trend into the future

Thankyou for all the amazing times together, all your love and support, friendship and advice, hope theres (sic) many more to come…
The applicant also gave evidence that the respondent often confided in her about his business plans, including when he was thinking about selling and establishing new businesses. On cross examination, she gave further evidence that she claimed that she was often privy to the value that businesses were purchased and sold for, plans for the business model, and when the businesses were facing various difficulties.

The applicant was on two occasions employed in the respondent’s businesses, however it is undisputed that she was treated the same as any other employee of those businesses. The respondent gave evidence that his business partners, Mr G and Mr N, were responsible for staffing, and the applicant had to go through the standard selection process to get these jobs in the respondent’s business.

The respondent denied discussing business matters with the applicant as he regarded them as private matters. He did give evidence that he may have told her that he had sold a business after the fact or discussed work issues such as the applicant getting along with another worker but that he did not discuss business. I accept the respondent’s evidence.[8] The respondent had a long standing business partner, Mr G who was also a friend. There is no suggestion that the applicant had any particular business expertise or experience and the applicant has given little detail of the business matters that were discussed. The evidence does not suggest that business decisions were discussed between them as if they were de facto partners.

The applicant stated in her affidavit that the respondent told her that she had been included in his Will. There was no disclosure of this Will, nor was the respondent questioned about its contents in court by the applicant.
As the applicant was self-represented, the court asked a number of questions about the inclusion of the applicant in the respondent’s Will, and consequently at the court’s request, the respondent produced a number of executed and draft Wills from the period of 2018 to late 2019, which were tendered into evidence. The respondent’s Will of 2018 notably referred to “[…], soon to be known as [Ms Jones]” as his “partner”, to whom he left the sum of $600,000, in addition to all of his chattels, vehicles, artwork, etc, as well as a 50% interest in the residuary estate. In response to questions about the value of the residuary estate, the respondent estimated that the total interest of the applicant under his Will would have been around $1.3 million. The other beneficiaries under the 2018 Will were predominately family members, and his business partners Mr G and Mr N. Collectively, the beneficiaries excluding the applicant received an amount equivalent to approximately $700,000.

The 2019 Will was provided to the court, both in final executed form, and a number of drafts prior to finalisation. In one of the drafts dated late 2019, the respondent had reduced the applicant’s interest to $200,000, however she was still referred to as his “partner”. When asked why her interest had been reduced, the respondent stated that they were fighting a lot in that period, and he felt that they were separating.

Notably, she was removed entirely from the final Will, which was executed in late 2019. He gave evidence that he and the applicant had separated at this point, so he was going through the process of amending his Will.
The court asked the respondent a number of questions about these documents, including why the applicant is referred to as his “partner”. The respondent gave evidence that he used that term because he wanted to ensure that there would be no dispute amongst the other named beneficiaries who did not know the applicant as to who she was.
I accept that it is more probable than not that the applicant was included in the Will for the reasons given by the respondent, and not because he regarded the applicant as his de facto partner. I also accept the respondent’s evidence that if he had considered that the applicant was his de facto partner, he would have left a greater share of his estate to her.

The applicant gave undisputed evidence that she and the respondent spent Christmases, birthdays and anniversaries together. She referred again to the various holidays that she and the respondent went on together, stating that they always stayed in the same room, and ate all of their meals at restaurants together.
The applicant submitted that the respondent was a great source of support throughout her gender dysphoria, which she stated began in the 2000s, and she was formally diagnosed with over 10 years later. This support included assisting her to seek professional help, buying her wigs, lingerie and shoes, and accompanying her and providing support while she went out in women’s clothes in public prior to her surgeries. She referred again to the respondent accompanying her overseas for her major transition surgeries, and the care he gave her during these periods.

Similarly, she gave evidence that she cared for the respondent when he was sick or injured. She set out three examples:
(1) After the respondent underwent surgery in early 2017, the applicant took the respondent home from hospital, and cared for him by cooking, assisting him to move around, and providing emotional support and company;
(2) In 2015 after the respondent’s underwent surgery, she visited him at the hospital, cooked for him, and provided him with emotional support; and

(3) In late 2011, the respondent had a medical condition, and the applicant was unable to wait with him due to “work commitments the next day”, but she said she spoke to him on the phone and messaged him that night, and following his release, she cared for him by cooking for him, providing emotional support and discussing his treatments.

Under cross examination about these surgeries, the applicant was taken to the list of procedure and surgeries that the respondent had undergone during the relationship, at paragraph [53] of his affidavit, set out below:
(1) A procedure at the Y Medical Centre in Suburb C in early2008;
(2) A procedure at the BB Hospital in late 2009;

(3) Medical treatment at the CC Hospital in late 2009;

(4) Medical treatment at the CC Hospital in early 2012;

(5) A procedure at the Y Medical Centre in late 2013;

(6) A procedure at the CC Hospital in mid-2014;

(7) An operation and 2 weeks at the DD Hospital in late 2015;

(8) Surgery at the FF Hospital in early 2016;

(9) Surgery at the FF Hospital in late 2017; and

(10) Surgery at the EE Hospital in early 2017.

The respondent stated that the applicant was not listed as his next of kin for any of these operations. Of the 10 condition and procedures listed, the applicant acknowledged that she was not there for six or seven of them. In relation to the knee surgery she described in 2017, in cross examination, she gave further evidence that she picked the respondent up and took him home, and after around an hour at his house with him, she left. On that occasion, the respondent paid for the applicant to take an Uber to collect him, and his evidence was that he only did so because no one else was available to collect him, and the hospital would not let him leave alone. He had already attempted to contact Mr G and Mr L to collect him, and they were unable to. He contacted the applicant only because no one else was available.
In relation to the 2015 surgery, the respondent was in hospital and rehabilitation for a two week period, during which time the applicant gave evidence that she visited him once. During the month or so recovery period following hospitalisation, she said she visited the applicant three or four times at his home. When asked why she visited so infrequently, she gave evidence that she worked full time and could not afford time off, and that the respondent was a very independent person and did not need her help. The respondent said that his friends Mr M and Mr K cared for him during the month long rehabilitation period, including cooking and assisting with other domestic jobs.
In relation to a 2011 medical condition, the applicant in her affidavit stated that she could not go with the respondent because of work commitments the next day. Under cross examination, she stated she did not accompany the respondent to the hospital because she did not know that he had gone. When the inconsistency in her evidence was brought to her attention, she said she could not recollect the night, but said it was likely that she did not accompany the respondent due to her having work commitments the following morning. When asked by the court how she reconciles having a caring committed relationship, whilst not accompanying her partner to emergency while his life may have been in danger, she said that having two de facto partners is difficult, and you often have to “make hard decisions”.
Counsel for the respondent submitted that the comparison between Ms B relationship and the applicant, and that of the respondent and the applicant is a useful tool in determining the nature and quality of relationship between the applicant and respondent. The respondent submitted that all of the applicant’s time, energy and financial resources went into the household she shared with Ms B, and she simply spent about one night a week with the respondent and return to her household the next day.

The Reputation and Public Aspects of the Relationship

The reputation and public aspects of the relationship was disputed, and a number of witnesses were called by each party to give evidence about their observations of the parties.
The applicant claimrf that she and the respondent had a very public relationship in which they presented as a couple, including at restaurants, in the gym, and on holidays. She stated that the respondent “always introduced [her] as his partner, or his boyfriend (before early 2018) or girlfriend (after early 2018)”. This was disputed. The respondent gave evidence in his affidavit that the applicant was not “out” as bisexual in the earlier years of their relationship, and thus was secretive about having a relationship with the respondent, including towards the applicant’s family.
The respondent and applicant both called witnesses to give evidence as to their awareness and observations of the relationship.

The respondent claimed they were not significantly involved in the family life of the other. He gave evidence that the applicant came to one family event, being a cooking day with some of the immediate family. The respondent said he only went to one family event with the applicant’s family being Mr J’s 30th birthday.
The applicant called her mother, Ms H and her brother, Mr J to give evidence.
Ms H gave evidence by her affidavit sworn 30 March 2022 that she met the respondent on the three occasions when she travelled to Melbourne in late 2004, early 2005, and sometime around 2011-2013, and she was aware that the applicant and respondent had a romantic relationship. She gave evidence that she understood the applicant lived with Ms B. She gave evidence that she stayed with the applicant on two of these occasions, and on one of these occasions, the respondent picked her up from the airport.

She gave evidence that she was aware that the applicant and respondent had a sexual relationship, and she understood it was an open relationship. She also gave evidence that she observed them in public settings and said they were “very open about the fact they were partners”. She said that she was aware of the respondent buying gifts for the applicant, his paying for her travel, and his contribution towards her surgeries.

Both the brother and mother gave evidence that the respondent attended the brother’s 30th birthday party, and both remembered the respondent being introduced as the applicant’s partner. The respondent disputed this. Notably, the mother gave evidence that she does not remember the respondent specifically introducing himself as the applicant’s partner, but the two of them were publically affectionate, and everyone at the party thought of them as partners.
Mr J gave evidence that he met the respondent on several occasions, and that he attended his 30th birthday, and the respondent was invited to his wedding. On further questioning, he stated that the respondent did not receive a specific invitation, but the invitation sent to the applicant was an open invitation, and he assumed that the applicant would bring the respondent. The respondent denied being invited.

The applicant’s mother’s oral evidence was vague and she struggled recalling date and times. This is understandable given she is relatively elderly and suffers significant ongoing poor health. She was also trying to recall events from 15 years ago. In terms of the detail of recollections regarding the various times that Ms Jones met the respondent and what occurred, I prefer the evidence of the respondent. This is not because Ms Jones was not trying to tell the truth, but she had a poorer recollection of events.

The respondent called his brother, Mr L, his sister, Ms O, his close friends Mr K, and Mr M, his long term friend and business partner, Mr G.
Each of the respondent’s witnesses were asked what their perception of the relationship between the respondent and applicant was, and each responded that they understood it to be a purely physical, casual but long term relationship. None of the witnesses thought of the applicant as the respondent’s “partner”. Mr G used the term “friends with benefits”, and Mr M used similar terms. All witnesses were asked by the applicant whether they observed the relationship grow from initially casual to something more serious, and all denied this.
Mr K, who is a long standing friend of the respondent from about 2002, gave evidence by his affidavit filed 3 May 2022 that he travelled overseas with his then partner Mr M and with the Respondent in 2007, 2008, 2009 and 2015. He recalled that in 2008 he was in City AA with a group of friends and that Ms B and the applicant were also there to attend a LGBTIAQ+ festival. At the conclusion of the festival the respondent met up with Mr K and Mr M in City Z without Ms B or the applicant.

Mr K gave evidence that he saw the respondent and the applicant together very rarely, and that the respondent did not tend to speak about the applicant. He stated that the respondent did not speak of the applicant living with him, and that there was nothing in the respondent’s house to suggest that the applicant was living with him.
A faint challenge was made by the applicant to the evidence of these witnesses on the basis that they were all “loyal” to the respondent, implying that their evidence may be somewhat unreliable. However, this was not established by any of the evidence and I find that they gave genuine and truthful evidence of the way they perceived the relationship between the parties.

The applicant claimed that hers and the respondent’s families were aware of the relationship. The respondent accepts that the applicant’s family thought of him as a romantic partner, however, his own family only believed she was a casual sexual partner.
The applicant listed at paragraph [87] of her affidavit the occasions she was invited to spend time with the respondent’s family, of which it is not clear whether she attended. She also described attending the respondent’s family’s annual cooking day on one occasion, and being invited to others but being unable to attend.
The respondent’s brother gave evidence that he recalled seeing the applicant on the cooking day, but does not recall any other occasion. His sister gave evidence that she only met the applicant on five occasions, and was not aware that the respondent and applicant were in a relationship. However, she gave evidence that she was aware of the respondent’s relationships with other men in the same period.
In her affidavit, the applicant annexes numerous photos of her and the respondent together in public, being affectionate, both pre and post her transition. The respondent gave evidence under cross examination that for the majority of their relationship prior to her transition, the respondent and applicant were not often openly affectionate in public due to concerns about homophobia. I accept that evidence. I also accept that many of the photos are taken in group settings and on holidays where Ms B is often present and do not tend to establish that they were presenting as a couple in public.

The evidence of the applicant’s family is that they regarded the respondent as a romantic partner of the applicant and a person who supported the applicant with gifts. The evidence does not support that they regarded her as a de facto partner as that term is defined.

THE AUTHORITIES

During closing submissions, both parties referred to relevant case law.
The respondent referred the principle of whether the parties were “couple living together on a genuine domestic basis” as being the “touchstone” for determining the existence of a de facto relationship (Jonah & White [2012] FamCAFC 200 (at [32]).

While the respondent acknowledged that it is not a requirement of a de facto relationship for the parties to have a common residence or live together full time, it was submitted that it is recognised that not living together is a strong indicator that they do not live in a genuine domestic basis, especially where they have not shared the burden of maintaining a household per KQ v HAE [2006] QCA 489; [2007] 2 Qd R 32.
Counsel for the respondent referred to Johan & White as a similar scenario, whereby there was a long term relationship where the parties lived apart, as one of them was married with three children. Counsel referred to paragraph [69] of the judgement where Murphy J sets out the factors that point away from the existence of a de facto relationship in that case. I will not set out all these matters referred to by Murphy J but I do note that the features which were found not to point to de facto relationship are also features in this case. They include:
(1) The lack of shared property, bank accounts, or investments; and
(2) The lack of any close relationship between the applicant and the close friends of the respondent.

The applicant, in closing submissions, referred to Moby & Schulter [2010] FamCA 748 at [140], “the concept of living together does not import any concept of proportion of time. In particular, it does not require that a couple live together on a full-time basis”, echoed by Murphy J in the case of Jonah & White [2011] FamCA 221 at [65]:
It seems to me to be clearly established by authority that the fact that, for example, the parties live in the same residence, for only a small part of each week does not exclude the possibility that they are “living together as a couple on a genuine domestic basis” or that the maintenance of separate residences is necessarily inconsistent with parties having a de facto relationship.

The applicant drew a comparison between the current matter and the facts in Vaughan v Hoskovich [2010] NSWSC 706, which was an estated matter under the New South Wales Property (Relationships) Act 1984 (NSW), dealing with s 4, which the applicant submitted is comparable to the definition of de facto relationship under the Act. She referred to paragraph [53]:

In my view, the fact that they lived together only for a small part of each week does not mean that they cannot be said to have lived together as a couple. Whether they lived together as a couple, must of course take into account all of the circumstances, including those listed in subs (2). But it seems to me that the maintenance of separate residences is not inconsistent with the parties living together as a couple, provided that there is sufficient shared residence over a long enough period to amount to “living together”. Parties can live together for part of a week and also live apart, for part of a week. Although living apart for some periods, they can still live together as a couple if all the circumstances indicate that they are “a couple”. I accept that the phrase “living together as a couple” connotes that the persons will live together in a place which can be said to be their home, but a person can have more than one home.

RELEVANT LAW

Pursuant to section 90RD(1) of the Act, this Court is empowered in proceedings brought under, amongst other provisions, section 90SM of the Act to declare for the purposes of those proceedings that a de facto relationship existed, or never existed, between the parties.

The making of a declaration of the type contemplated by s 90RD of the Act does not involve the exercise of a judicial discretion. The question of whether a de facto relationship exists is a determination of fact (albeit based on findings in relation to a non-exclusive number of statutory considerations) which founds the jurisdiction to make orders of the type contemplated by that part of the Act. The ultimate question is in the nature of a jurisdictional fact: at [39]. Corporation of the City Enfield v Development Assessment Commission (2000) 199 CLR 135; 169 ALR 400; 60 ALD 342; [2000] HCA 5, applied.
The definition of a de facto relationship, for the purpose of the Act, is contained in section 4AA. Subsection (1) provides as follows:
A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; an

(b) the persons are not related by family (see subsection (6)); an
(c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has effect subject to subsection (5). Subsection (5) provides as follows:
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.

Some elaboration of the circumstances relevant to working out if persons have a relationship as a couple is contained in 90RD subsection (2). That section provides as follows:
Those circumstances may include any or all of the following:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;

(c) whether a sexual relationship exists;
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;

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

(f) the degree of mutual commitment to a shared life;
(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;

(h) the care and support of children;

(i) the reputation and public aspects of the relationship.
Statutory guidance as to the interrelationship of those circumstances, and the weight to be given to them, is provided in subsection (3) and (4) of s 90RD as follows:
(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.

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.

CONSIDERATION

I proceed on the basis that the question of whether parties are in a de facto relationship involves the central consideration of whether the parties were “couple living together on a genuine domestic basis”: Jonah & White [2012] FamCAFC 200 (at [32]). There is no requirement that the parties reside in one residence and the authorities and the legislation that I have been referred to acknowledges that a person can be engaged in more than one relationship. Further a person can have more than one home and the concept of “living together” does not import any concept of proportion of time: Moby v Schulter [2010] FamCA 748 at [140]; Jonah & White [2011] FamCA 221 at [65]; Cham & Sha [2015] FamCA 355 at [90]; Vaughan & Hoskovich [ 2010] NSWSC 706 at [53] & [58]. 

There were considerable differences in parts of the evidence given by the applicant and respondent. This particularly arose in relation to the lack of care that the applicant had given the respondent at times when he was unwell or needed medical assistance or hospitalisation. The evidence demonstrates that the applicant had exaggerated the extent of care that she had extended and this was demonstrated by contemporaneous records including records generated by Uber used by the applicant. The applicant has tended to exaggerate the amount of time that she spent with the respondent and the level of interaction that she had with his day to day life.

One such instance is the applicant’s evidence that she was active in supporting the respondent in his garden and looking after his house. The extent of the applicant’s contribution to the maintenance of the respondent’s property was limited to constructing a small pond, occasionally repotting plants, and cleaning up after her dogs.
The respondent was consistent in his evidence and made appropriate concessions. The area that caused the court concern was in relation to the respondent seeking to deny that he had ever genuinely referred to the applicant as his partner or that the relationship between them was simply casual.[9] I deal with these matters below.
On balance, I prefer the respondent’s evidence when there is a direct conflict in that evidence. The respondent gave detailed and cogent evidence both by affidavit and in oral evidence, in response to each of the matters raised by the applicant or the witness called on her behalf. I accept that evidence as truthful.

There is no doubt that the parties were in a long term relationship and that they both cared about each other. However, that relationship did not develop to the point that the parties were in a relationship “living together on a genuine domestic basis”.
Having considered the evidence in relation to the question of common residence, I find that the evidence does not support a finding that there was any common residence. The applicant had her home which she shared with Ms B, and the respondent had his home where the applicant spent time, but it was not regarded by either as a common residence. The applicant had a key for particular reasons when the respondent was travelling overseas. The applicant did not regularly live there when the respondent was absent and the respondent gave uncontested evidence that he had not asked the applicant to house sit since 2007 because of his concerns about the applicant’s treatment of his house. A small but significant detail in that the respondent gave evidence in response to the applicant’s claims that she treated the respondent’s house as her house and in particular, gave evidence with regards to the gardening at the respondent’s home.[10] The respondent gave unchallenged evidence that he enjoyed gardening and did his own or used a gardener. On one occasion when recovering from surgery, he asked the applicant to weed the front garden, the applicant asked for payment for this service. This is hardly suggestive that she treated that home as her own.

There was plainly a sexual relationship between the parties – but this is not determinative of a finding of a de facto relationship: both parties and Ms B were having sex with other people. It is noted that on a trip to Mardi Gras in Sydney, the applicant and Ms B booked a hotel room as a “sex room” where they both engaged in sex with other men. I only raise this as it makes plain that the existence of a sexual relationship between these parties does not necessarily establish a de facto relationship.

As to the degree of financial dependence – the applicant was frank in acknowledging that she made no financial contributions to the respondent – and that she did make contributions towards her relationship with Ms B.
The matters that militate against a finding of a de facto relationship are:

(1) There was never a common residence – the applicant’s home was her residence with Ms B;
(2) They had a long standing sexual relationship but it was by no means exclusive. The applicant’s principal relationship was with Ms B with whom she would frequently travel even when travelling with the respondent on holidays;

(3) The applicant had her own work and did not rely on the respondent for day to day expenses. The applicant was reliant on the respondent to support a lifestyle that involved travel and some expensive consumer items but these were not the day to day expenses such as the cost of housing, utilities, pet costs and day to day transport;

(4) The parties acquired no property together notwithstanding that the respondent had the capacity to acquire property in joint names if he had chosen to do so. The respondent was generous in relation to gift giving and then when he contributed to the costs of the applicant’s gender realignment but he did not buy property or assets in joint names. Further there were no joint bank accounts;

(5) Whilst there were mutual expressions of commitment to the continuation of the relationship that they had – in particular by the respondent in his cards to the applicant on the anniversary of their relationship – that was in relation to the continuation of a relationship which was not a de facto relationship. The applicant expressed that she was “devastated” when her relationship with the respondent ended, but that was in the context of her being in a relationship with Ms B, and where she stated that she was also in a relationship with Mr E;

(6) During the time that the respondent and the applicant spent in public either with the applicant’s family or with the respondent’s family and friends, they did not present as a couple living together on a genuine domestic basis. Much of the time where the applicant referred in her affidavits to spending time and presenting as a couple with the applicant was also spent with her settled de facto partner, Ms B, who was attending the same events as the applicant’s de facto partner. The evidence does not support a finding that any third person understood that the applicant was the respondent’s de facto partner; and

(7) Whilst the applicant’s mother and brother gave evidence that they considered that that the parties were in a relationship and described them as partners, that evidence does not go to establish that they were in a settled domestic relationship and the weight of evidence in this case establishes that they were not. The applicant’s family did not see the respondent often over the 16 years of the relationship.

The most compelling evidence that there was a de facto relationship arises because the respondent executed a Will in early 2018 where he bequeathed “free of all duties: (a) the amount of $600,000 to my partner […] (soon to be known as [Ms Jones]) on surviving me” and after making other bequests of business and superannuation interests be bequeathed half the residual estate to the applicant. The total of these bequests were estimated to be about $1.4 million. I have set out the evidence regarding the making of that Will and subsequent Wills from [85] herein.
The court asked the respondent a number of questions about these documents, including why the applicant is referred to as his “partner”. The respondent gave evidence that he used that term because he wanted to ensure that there would be no dispute amongst the other named beneficiaries who did not know the applicant. I accept that was his reason for the use of the expression “partner” in that context. Further, I do not accept that the use of that expression in the Will then compels a finding that the parties were in a de facto relationship as defined by the Act. The evidence supports a finding that they are not in such a relationship.

In relation to the amount left to the applicant being substantial, the respondent gave evidence that his business and superannuation were his substantial assets. Further, he said he was a single man, so did not have a particular person to leave his estate to. He also stressed that he was concerned about the wellbeing of the applicant at the time of her transition. He also stated that leaving her a sum of money after he died was “no skin off his nose”.
He said that if he had considered the applicant as his partner, he would have left his entire estate to her. When asked if another reason for inclusion of the applicant was that they loved and cared about one another, the respondent agreed that this was a factor.

I accept the respondent’s evidence as to the reasons for including the applicant in his Will and making generous provision for her. They had spent considerable time together and clearly enjoyed one another’s company. There is very little evidence of rancorous or unkind communication between them when they were a couple. Their birthday messages and cards sent on the anniversary of the relationship commencing are warm and loving. The respondent had the financial capacity to be caring towards the applicant when she needed funds for the gender reassignment surgery and was able to make provision for her in the event that he died.

I also accept the respondent’s evidence that he was concerned about the applicant’s mental health and the risk of her committing suicide. He gave evidence that the applicant had said to him in 2015 or 2016 that life was not living if she could not transition. He had also been told by the applicant that 50% of transgender people do commit suicide. I accept that the respondent was concerned about the applicant’s mental health as she was considering and then later undergoing gender transition. The respondent gave evidence, which was unchallenged, that the applicant and Ms B asked the respondent to pay for some of the transition costs and he believed that he had paid a third of those costs. The respondent was concerned that the applicant not have to rely on crowd funding to pay for the procedures as some people have done. He also had no input in choosing the applicant’s female name or her choosing and continuing to work as a sex worker.

I accept that it is more probable than not, that the applicant was included in the Will for the reasons given by the respondent and not because he regarded the applicant as his de facto partner. I also accept that if the respondent had considered that the applicant was his de facto partner, he would have left a greater share of his estate to her.
After considering the factors raised by the applicant, individually and as a whole, the court finds that the applicant was not in a de facto relationship within the meaning of s 4AA and declares pursuant to s 90RD of the Act that no de facto relationship between the applicant and respondent existed.

I certify that the preceding one hundred and forty-eight (148) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McNab.

Associate:

Dated: 21 October 2022

[1] Court Book pg 428.

[2] Court Book pg 290.

[3] Court Book pg 353.

[4] Court Book pg 415.

[5] Court Book pg 104.

[6] Court Book pg 351.

[7] Court Book pg 105; 254.

[8] Court Book pg 383.

[9] Court Book pg 366.

[10] Court Book pg 105.”

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