Braun & Sanchez [2026] FedCFamC1F 54 (5 February 2026)

1. The applicant was cross examined.
2. Mr JJ was cross examined.
3. Mr HH was cross examined.
4. Mr M was cross examined.
5. The respondent relied upon the following documents:

(a) Case Outline filed 8 January 2026;

(b) Amended Response to Initiating Application filed 31 July 2025;

(c) Defence to Points of Claim filed 20 June 2025;

(d) Affidavit of respondent filed 8 December 2025;

(e) Affidavit of Mrs GG filed 8 December 2025;

(f) Affidavit of Mr X filed 8 December 2025;

(g) Affidavit of Mr MM filed 8 December 2025;

(h) Affidavit of Ms NN filed 8 December 2025;

(i) Financial Statement filed 8 December 2025; and

(j) Undertaking as to Disclosure filed 8 December 2025.

1. The respondent was cross examined.
2. Mrs GG was cross examined.
3. Mr X was cross examined.
4. Ms NN was cross examined.
5. The documents tendered and received into evidence are set out in Schedule 1 to these reasons.

1. Determination of the existence and timing of a de facto relationship is an evaluative factual decision (Lennon & Sanil [2020] FamCAFC 109; (2020) FLC 93-962 at [8]), establishing the jurisdictional facts to enliven the discretionary power to adjust the parties' property interests under Pt VIIIAB (Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at [28]). It is not a discretionary decision.
2. In order for the Court to have the jurisdiction to make property orders under Pt VIIIAB the evidence must also establish the parties had a de facto relationship for a period of two years or more (s 90SB of the Act).
3. Section 4AA of the Act provides that a person is in a de facto relationship if three criteria are satisfied:

(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.

1. There was no dispute the first two criteria were satisfied. The debate concerned s 4AA(1)(c).
2. The applicant accepted that he bears the onus of establishing the parties, having regard to all the circumstances, were "living together on a genuine domestic basis" for a period of two years or longer. The respondent however also carries an onus to justify his proposed declaration pursuant to s 90RD.
3. Section 4AA(2) sets out a range of factors to which the Court may have regard for the purposes of s 4AA(1)(c):

(2) Those circumstances may include any or all of the following:

(a) the duration of the relationship;

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

(c) whether a sexual relationship exists;

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

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

(f) the degree of mutual commitment to a shared life;

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

(h) the care and support of children;

(i) the reputation and public aspects of the relationship.

1. No one matter set forth in s 4AA(2) must be found as a fact to establish a de facto relationship, nor does any one factor take precedence (s 4AA(3)). It is not essential that all the matters in s 4AA(2) are established. The Court has regard to all of the circumstances, to such matters, and to attach such weight to any matter, as may seem appropriate (s 4AA(4)).
2. It is worth observing that the various circumstances set out in s 4AA(2) may overlap, or inform each other. For example, the nature and extent of a common residence may inform the evaluation of the degree of mutual commitment to a shared life and vice versa. It has long been recognised that each element of a relationship draws its colour and its significance from the other elements, some of which may point in one direction and some in the other (Lynam v Director-General of Social Security [1983] FCA 274; (1984) FLC 91-577 at 79,663; Sinclair & Whittaker [2013] FamCAFC 129; (2013) FLC 93-551 ("Sinclair & Whittaker") at [51]-[56]).
3. The High Court has explained the broad evaluative approach which the Court should take: "Consistently with the reality that human relationships are infinitely mutable, in determining whether a de facto relationship exists a court is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate" (Fairbairn v Radecki [2022] HCA 18; (2022) 275 CLR 400 ("Fairbairn") at [28]). In a given case, some of the factors listed in s 4AA(2) may be relevant and some may be irrelevant; inevitably some may have greater prominence than others (Fairbairn at [39]).
4. The composite expression in s 4AA(1)(c) has received much judicial attention. The focus is on the "nature and quality" of the relationship, rather than a quantification of time spent together (Jonah & White (2012) FLC 93-522 at 86,683). The Court must look at the "composite picture" of the relationship (Sinclair & Whittaker at [54]-[55]). The gist of the inquiry is the degree to which parties have merged their lives into one, which connotes financial, emotional and physical interdependence (Rooks & Padley [2014] FamCA 444 ("Rooks & Padley") at [10]).
5. Hallen J in Bezjak v Wyatt [2018] NSWSC 199 at [63] described the determination of the question of whether a de facto relationship exists as:
   1. ... essentially impressionistic. Such a relationship only exists because of the factual circumstances of the parties, unlike marriage, where there is a legal status immediately created at the time of the public ceremony and registration. A value judgment is required to be formed. Accordingly, the Court is often required to assess multiple pieces of circumstantial evidence. If there are sufficient pieces of evidence, when viewed, with care and sensitivity, cumulatively, and with common sense and proper reasoning, which satisfy the finder of fact that the relationship is a de facto relationship, then the statutory test is met ...
6. Hallen J continued at [69]:
   1. ... the concept of a de facto relationship is complex and diverse. Such a relationship can, and should, be distinguished from the relationship of two people, who live apart, but who have a sexual relationship, and who sleep over at one another's house; and also from the relationship of two people, who share a house, but who do not have a commitment to each other, and who have other sexual partners. The fact that one provides the other, on occasions, with financial, or other, assistance, such as accommodation, to alleviate hardship does not mean that they are in a de facto relationship. In this way, a de facto relationship is different from friendship, or courtship, which has not matured into the commitment where there is a merging of lives so that there is a mutual commitment to a shared life. It is also different from simple companionship.
7. It has been held that "domestic basis" requires a level of domesticity, "which refers to home conditions and arrangements" (Taisha & Peng [2012] FamCA 385; (2012) 48 Fam LR 150 at [20]).
8. In relation to the concept of "living together", in Fairbairn the High Court held:
   1. Living together for the purposes of s 4AA(1) will often, perhaps usually, mean cohabitation of some residence by a couple for some period of time. But cohabitation of a residence or residences is not a necessary feature of "living together". That phrase must be construed to take account of the many various ways in which two people may share their lives together in the modern world. Two people, for any number of reasons, may not reside in the same residence, but nonetheless be in a de facto relationship in the sense required by s 4AA.

...

1. ... physical cohabitation at a single home or homes is not a necessary feature of an ongoing relationship whether by way of marriage or otherwise; it is not an irreducible minimum that all relationships must exhibit.

...

1. The language of s 4AA of the Act and its reference to "living together" requires no different approach to determining whether a relationship exists of the kind defined. "Living together", consistently with authority, should be construed as meaning sharing life as a couple. Section 4AA does not prescribe any way by which a couple may share life together. Its language is sufficiently broad to accommodate the great variety of ways a de facto relationship may exist. That conclusion is supported by the varied factors listed in s 4AA(2). In a given case, some of the factors listed in s 4AA(2) may be relevant and some may be irrelevant; inevitably some may have greater prominence than others. A conclusion that a de facto relationship has ended may also arise because of factors not listed in s 4AA(2). Such a conclusion is mandated by s 4AA(3) and (4). In particular, s 4AA(4) is a statutory recognition that what may constitute a genuine de facto relationship is not be determined in the same way in every case by reference to rigid criteria that must always be satisfied. In that respect, the language of s 4AA(2)(b) does not assume that every de facto relationship must have a "common residence" to some "extent" and of some "nature". Such a construction is entirely denied by s 4AA(3).

(Footnotes omitted, emphasis original)

1. The Full Court observed in Shelby & Rylan [2022] FedCFamC1A 143 at [19]:
   1. The High Court has arguably clarified that parties do not need to live together in order to be in a de facto relationship if they are sharing life as a couple. This however does not mean that every couple sharing life is necessarily living in a de facto relationship. The Court must have regard to all of the evidence, including to the matters referred to in s 4AA(2) of the Act. On one view, the phrase "sharing life" is simply a general summary of the s 4AA(2) circumstances.
2. I have taken account of the factual matters set out above at [10]-[68].
3. I turn to consider the factors set forth in s 4AA(2).
4. It is common ground that the parties were in some form of relationship that commenced sometime in 1998 and broke down around October 2023, being a duration of about 25 years. As mentioned earlier, the parties disputed the month of commencement, being April or May according to the applicant, or December according to the respondent. The applicant claimed the relationship became de facto within weeks, primarily because the respondent introduced him to his family and gave him a key to the Suburb C property. This is not plausible. The discussion at [10]-[68] shows the progress of the relationship. The evidence does not establish the parties were living together as a couple on a genuine domestic basis in 1998 or 1999.
5. But there is no doubt the parties had a relationship for well in excess of two years. The central question is whether the evidence has established a de facto relationship, not some other type of relationship, came into existence lasting for a period of at least two years during that time.
6. The relationship in question here lasted for over two decades on either party's evidence. This is a considerable period. The submissions of the applicant understandably emphasised the duration, because it is a striking feature of the factual matrix. However, duration is one matter among many to be taken into account. It is quite conceivable that parties may continue a relationship for many years without it ever becoming a relationship as a couple living together on a genuine domestic basis. As will be explained in the following discussion, I have concluded that is the position in this matter.
7. It was also common ground that a sexual relationship existed from at least 1998 until separation in 2023. But it also continued after October 2023. It was the evidence of the applicant that the parties maintained a sexual relationship until about March or May 2024.
8. The respondent claimed the relationship was never, and never intended to be, exclusive. The applicant denied this, though he gave evidence the parties did not discuss being exclusive, but it was "assumed" (applicant's reply affidavit filed 15 December 2025, paragraph 15). However, the applicant need not establish sexual or other exclusivity (Rooks & Padley at [10]), although it is a factor to be weighed with all other considerations. The applicant for his part gave evidence of a holiday taken by the respondent with another man in Country EE, which caused him great distress. However, the respondent denied the sexual encounters alleged by the applicant ever happened, as mentioned I accept it is more likely than not. I find it is likely that the parties were in a largely exclusive relationship from about 1998 until October 2023.
9. There was a significant dispute about the existence of a common residence. The concept of a "common residence" or "household" has been the subject of much judicial discussion which can also bear upon the ambit of "living together" in s 4AA. It has long been held that there need not be "full time" living together (Moby v Schulter [2010] FamCA 748; (2010) FLC 93-447 at [140]). In Yesilhat v Calokerinos (2021) 21 ASTLR 227, Brereton JA at [125], [133] and [134] (Bathurst CJ at [1] agreeing) made some apposite comments:
   1. While there are differences between the statutory definitions of a de facto relationship and a close personal relationship, and the notion of a common household, each of them involves a requirement that the person be "living with" the other person...

...

1. It is also inherent in the concept of membership of the same household that the members of the household be living together. The notion of membership of a household involves a common residence in which two or more persons not only share the facilities but also live together. Membership of (as distinct from presence in) a household involves aspects of continuity and permanency of mutual living. Although the question as to when a living arrangement becomes a household is one of degree, and there are no hard and fast rules, at least generally, the minimum requirements include at least some element of residing (as distinct from visiting), and mutual living so that there is a quasi-family unit (as distinct from boarding). The fact that a person lives in the residence of another only periodically, or for a very short period, is insufficient to render him or her a member of the other's household, as the required degree of continuity and permanency is not present. Where one person occasionally stays over at the other's house, but maintains his or her own separate accommodation as a principal place of residence, it cannot be said that they are living together or members of the same household, notwithstanding that the emotional relationship between them is substantial, strong, loving, intense, and enduring. In this respect, there is a distinction between a visitor and a resident, which may be easier to recognise than precisely describe; but residence involves aspects of continuity and permanence, and indicia such as use of the place as an address, and as a location where personal items and effects are kept and the activities of daily living (such as sleeping, washing and dressing) are performed.

2. Each of the three relevant categories of eligibility therefore involves "living together", a concept which involves mutual living in a common residence, at least to some extent, though not necessarily exclusively or on a full-time basis. It is not essential to a finding of a de facto relationship that there be unbroken common residence, and it is not incompatible with the existence of a de facto relationship, as defined, that a party spend some nights each week elsewhere than in the "matrimonial home". This is supported, in the case of a de facto relationship, by Interpretation Act, s 21C(3)(b), which in referring to "(b) the nature and extent of their common residence", acknowledges that its nature and extent may vary. Many authorities, some of which are referred to below, acknowledge that continuous full-time cohabitation is not essential, although the reason for the absences will be relevant: thus absence for work travel, or leisure, will rarely if ever be inconsistent with "living together", whereas absence because the person is maintaining another household might well be so, even if not invariably. However, some element of common residence is indispensable. As will appear, no authority holds that persons can "live together" or be members of the same household if they do not, to some extent, have a common residence.

(Footnotes omitted)

1. The applicant claimed he used the respondent's homes in Suburb C, and Suburb J until its sale in 2010, as if they were his shared residences.
2. Apart from the Suburb C property, there was no dispute the applicant resided at the following locations throughout the relationship:

(a) From 1998 to July 2002, at student accommodation at OO College and G University;

(b) From July 2002 to 11 June 2009, with his brother at rental accommodation in Suburb L; and

(c) From 11 June 2009 to the date of trial at the Suburb U property.

1. There was no claim by the applicant that the respondent ever shared the Suburb L property or the Suburb U property with him as a common residence. The applicant did not give any credible evidence of living at the Suburb J property. The only possible common residence was therefore the Suburb C property. There was no dispute this was and is the residence of the respondent.
2. As mentioned earlier, the applicant claimed from 1998 to 2009 he spent four to six nights per week at the Suburb C property. The respondent claimed between 1998 and 2002 it was no more than two nights per week, and not every week, followed by an increase to three nights per week between 2003 to 2005. I prefer the evidence of the respondent in this regard.
3. From 2009 to 2023 it was agreed the applicant spent four nights per week at the Suburb C property being Wednesday, and Friday through to Sunday. As mentioned, I preferred the respondent's evidence that it was no more than four nights and at times the applicant only spent about one night per week at the Suburb C property if the parties went away on the weekend.
4. The applicant gave oral evidence that between 1998 to 2012 he considered the Suburb C property his primary residence. His subjective perceptions are not determinative, but form part of the composite picture of the relationship, and if accepted as true by the Court, inform the objective assessment of all the circumstances.
5. But, as recorded above, the applicant never, in 25 years, gave the Suburb C property as his address when providing information to the Australian Taxation Office, the federal Department of Immigration, Services NSW to renew his driver's licence, or the NSW Department of Education for a Working With Children Check. Instead, the applicant held out the Suburb L property, and later the Suburb U property as his residential address at all times, including for correspondence from his superannuation fund and banks.
6. I note that in his affidavit in reply the applicant asserted he used the Suburb C property as his address on a curriculum vitae when applying for jobs in the Sydney area (applicant's affidavit in reply filed 15 December 2025, paragraph 17; applicant's tender bundle, p.111). From the face of the document, it must have been brought into existence after 16 October 2020. The document is undated and the applicant gives no evidence of when it was brought into existence, or where he stored copies prior to the commencement of the proceedings. There is little mention in his trial affidavit of applying for jobs in the Sydney area besides a reference to applying for a part time casual teaching job at FF School in 2020. He gave no detail in his affidavit in reply about any dates or any particular job application for which this document was used. Although the applicant was not cross examined specifically about this document, I consider it to be unpersuasive evidence of the applicant ever presenting the Suburb C property as his address.
7. The applicant sought to explain the inconsistency between his asserted subjective perception of the nature of the relationship and the Suburb C property as the parties' "forever home" and the consistent manner in which he presented his primary address as the Suburb U property to a range of federal and state regulatory authorities. One explanation was that because he lived in two homes, he wanted his mail directed to one mailbox separate from the tenants' mail at the Suburb C property. This was unconvincing because, as he conceded, this did not explain the documents completed by him and lodged prior to 2012 when tenants did not yet occupy the Suburb C property. Another explanation was that he did not disclose the Suburb C property address because he was not openly gay and wanted to keep a separate residential address so his parents, and the wider world would not know he lived in two homes, one of which involved a gay relationship. In cross examination he claimed, for example, "I feel like I need to be safe, and guarded myself, in terms of who I told people, because I would not just willy-nilly tell everyone, random strangers, that I'm gay" (Transcript 14 January 2026, p.2 lines 45-47). Yet he admitted in cross examination that by 2020, there was no reason to conceal his residential address for this reason because he was no longer embarrassed about friends knowing he was in a same sex relationship. Nonetheless he continued to present the Suburb U property as his address in his Working with Children Check application dated September 2020.
8. For the same reason, namely, hiding his sexuality, he claimed he did not check the "de facto" box on his immigration form in 2002, despite claiming he considered the parties were already de facto by that time. Yet he admitted he also did not assert a de facto relationship status in his 2015 tax return, 13 years later, even though by 2015 he claimed to be in a loving committed relationship with the respondent and his friends and family knew he was gay.
9. While it is plausible the applicant wished to suppress wide knowledge of a gay relationship in the early years, this does not adequately explain why he consistently for the entire duration, 25 years, both failed to promote the Suburb C property as his address and denied a de facto relationship in his dealings with regulatory authorities, in documents which required him to declare the veracity of his information. Such misrepresentations made by parties to third parties about the status or characterisation of their relationship is not dispositive (Nelson v Nelson (1995) 184 CLR 538 at 568-571 and 613-617). But they undermine the credibility of the applicant's asserted perception of the nature of the relationship, and, on the contrary, involve an open acknowledgement by him that no de facto relationship existed. They also undermine the credibility of his assertion that he lived between two homes, or shared the Suburb C property as a common residence.
10. The respondent's evidence persuades me that he never viewed the Suburb C property as a common residence of the parties or welcomed the applicant into the Suburb C property on the basis of a merged life together. There is no doubt the applicant shared the Suburb C property on a regular basis by staying overnight during the relationship. But the corollary is that the applicant's absence from the Suburb C property at other times was because he maintained his home at the Suburb U property. I accept the applicant probably kept some clothing and personal grooming items at the Suburb C property over a number of years. I accept it is likely that over a period of 25 years the applicant on occasion did washing, cooking and even some cleaning. I accept that some patterns of behaviour such as taking breakfast together at the Suburb C property on weekends remained consistent over the bulk of the relationship. These are elements of a degree of modest, fractional domesticity, but not a merger of two lives.
11. I also accept the applicant likely helped the respondent with some manual labour during the period when the Suburb C property was renovated. But bearing in mind the extensive nature of the renovation and its myriad other aspects, with construction over two years, detailed by the respondent in evidence which I accept, even taking the applicant's asserted contributions at their highest, they were minor, and demonstrate the limited degree to which the parties, by 2010 to 2012 merged their lives and the degree to which neither party treated the Suburb C property as one of the applicant's "homes", as opposed to a place he visited regularly, and as opposed to the home of the respondent. The limited involvement of the applicant in the renovation of the Suburb C property is more consistent with a close friendship than a merger and sharing of two lives consistent with a de facto relationship.
12. According to the applicant, he had explained his same sex relationship to his brother and mother by 2012. However, despite the renovation of the Suburb C property the applicant did not spend time there with any greater frequency than he had previously. He did not purport to "move in" with the respondent, and the respondent denied any greater connection with the applicant after 2012, which I accept. The evidence of the applicant is that his presence in the Suburb C property and the patterns of activities there objectively remained unchanged.
13. Neither separately nor in combination do these factors demonstrate that the Suburb C property was at any time one home of the applicant. The evidence of the respondent satisfies me that the Suburb C property was treated by both parties as his home, where the applicant visited for material periods of time, but who maintained his own residence and separate part of his life, at the Suburb U property.
14. I find that the parties can only be said to have had a common residence at the Suburb C property to a limited extent, namely, the applicant was a regular visitor in the respondent's home, as a close personal friend, and sexual partner. While there were elements of domesticity when the applicant was present, I am unable to find the parties were maintaining a common residence at the Suburb C property, except to that very limited sense.
15. It is clear that between 1998 to 2005, the applicant had some financial dependence on the respondent. The applicant claimed he was unemployed until 2003 when he started casual work as in the fast-food industry working about one day each week. However, he conceded he was also financially dependent on his parents, who provided him with money for living expenses and for rent. He agreed he continued being financially reliant on the respondent until 2005, when he began full time employment with Q Company and earned a "reasonable income". He did not reimburse the respondent for expenses paid on his behalf to this point.
16. From 2005, his evidence was that he "became to a greater extent financially self supporting and relied less on [the respondent] to meet expenses for me" (applicant's affidavit filed 24 November 2025, paragraph 58). He remained employed with Q Company from 2005 to 2017. In this period he claimed he paid various expenses for the respondent, but under cross examination it appeared he actually paid his share, and was mostly, if not invariably reimbursed by the respondent for any expenditure he made on behalf of both parties, such as travel expenses and down to even $8 movie tickets.
17. The applicant made the oral submission that the parties' process of reimbursement, effectively each to pay their own way, constituted "interdependence" because it demonstrated a level of financial connectivity which is cooperative and requires and depends upon the other to participate in this approach that they took to sharing expenses. In my view, this submission confuses the manner in which funds were provided to meet expenses with a relationship where one party depends upon the other to provide the funds. The former is the situation here and is not an example of interdependence as opposed to co-operation.
18. Financial independence is not uncommon in modern relationships and not of itself inconsistent with life as a couple on a genuine domestic basis (Delamarre & Asprey [2014] FamCAFC 218 at [19]). But I take account of the fact that, apart from the early period when the respondent was more financially supportive, the parties remained financially separate for over 20 years. They did not merge their patterns of expenditure, other than to the limited degree already described.
19. There is no jointly owned property or joint bank accounts. There was no evidence the parties even contemplated acquiring joint property during the 25 years.
20. The applicant did not involve the respondent in the purchase of the Suburb U property. He argued the parties did not purchase property together because their 28 year age gap left them in different life stages. He argued the respondent had "mostly completed the property acquisition phase in his life prior to meeting the Applicant" (applicant's Case Outline filed 5 January 2026, paragraph 41) and that the applicant was not in a position to buy property. Even if so, the applicant at least in 2009, when he was financially able to invest in property, made a choice not to include the person he claimed to be his partner of about 10 years at that point in the investment.
21. It may also be said that the very fact of the parties being at "different life stages" is one reason why they never merged their lives to the extent consistent with a de facto relationship.
22. The applicant submitted that although the parties did not purchase property together, they "dealt with their property in parallel" and "suitable to their circumstances", with reference to the respondent's transition to retirement (applicant's Case Outline filed 5 January 2026, paragraph 40). He submitted that he provided labour for renovations to the Suburb C property to help convert the respondent's existing property into an income-generating asset to support retirement. I reject this argument, and refer to my finding that the applicant's contributions in relation to the renovation were minor.
23. It was undisputed the parties spent a lot of time together on the respondent's boat. The applicant claimed that he helped maintain the boat, for example doing antifouling maintenance, and polishing the boat's teak decking plus engine maintenance. I am not convinced by this evidence. It was clear from his cross examination that the applicant conceded polishing the teak deck did not happen and antifouling had to be done by an expert.
24. The public aspects of the relationship are equivocal.
25. A number of witnesses were called by both parties going to the public presentation of the relationship, each saying the evidence supported their case. But the impressions held by these witnesses of the parties socially was of little help in determining if there was a de facto relationship or a another type of close relationship which did not fall within s 4AA. None actually stated unequivocally that they thought the parties were in a relationship which was "de facto", as opposed to conceding they made assumptions about the relationship. This is equivocal at best.
26. Within the gay community, the applicant did not conceal the relationship because he considered it to be a safe environment. The parties had a number of mutual friends within the community. They regularly attended the same social activities, such as lunches, dinners, and event in Region Z, but disagreed if they presented publicly as a couple at these events. For the event in Region Z there was no requirement that attendees be in a relationship. The parties often arrived and departed from the events together, though not on every occasion. The applicant tendered a number of photographs of the parties in group settings at balls, bushwalks and dinners, but this evidence was equivocal about the nature of the relationship. The respondent denied the parties showed affection at these occasions or that the parties even spent much time together at the events. However, some of the photos indicate a level of affection between the parties.
27. The applicant claimed the respondent on occasion referred to him as the respondent's "partner" over the course of the relationship. The respondent denied ever doing so. I generally prefer the evidence of the respondent. But even if he did refer to the applicant as his "partner" occasionally over 25 years, this infrequent and random usage of itself suggests a level of disinterest in acknowledging the applicant in that way.
28. It was not contentious that the applicant spent time with the respondent's family beyond celebrating special occasions. The parties disagreed when the applicant first met the respondent's family, either in May 1998 or December 1999. The applicant claimed the respondent was immediately open with his family about the parties being in a relationship, and he felt included in their family circle. The respondent denied the applicant was considered part of his family and said his family referred to the applicant as his "friend", never as his "partner".
29. The applicant claimed his mother developed a strong relationship with the respondent after meeting him in 2013. The respondent in cross examination referred to the applicant's mother as his "friend", agreed that he knew her very well, and met her on numerous occasions. But he did not consider himself part of the applicant's family circle as he was not accepted by Mr M, the applicant's brother. I accept this was a genuinely held view.
30. One indication of a mutual commitment to a shared life is taking the step of marriage. This was open to the parties after amendments to the Marriage Act 1961 (Cth) in 2017. It is a statement of public nature about mutual commitment. However, the parties never married, and according to the evidence never discussed getting married.

1. The applicant submitted the parties had enmeshed their lives over 25 years in a relationship characterised by "reciprocity, shared responsibility and reliability" (applicant's Case Outline filed 5 January 2026, paragraph 47). He submitted there was a "meeting of the minds" of a mutual commitment to a shared life, evidenced by the parties' behaviour throughout the relationship. The applicant pointed out the parties regularly spent social occasions, such as group lunches and dinners, Christmas and birthday events together year after year, and regularly went on holidays. He contended the parties presented as a couple when attending social activities with their various clubs.
2. In relation to the respondent's practice of reimbursing the applicant for expenses, he argued that the parties' "coordinated approach to expenses evidences a relationship characterised by stability and shared goals" (applicant's Case Outline filed 5 January 2026, paragraph 51). The applicant contended this behaviour over 25 years demonstrated the parties' mutual commitment to shared experiences and social groups, and any financial independence does not diminish the reality of their integrated lives.
3. The respondent denied there was any degree of mutual commitment to a shared life. He asserted it was a close personal friendship maintained over 25 years without contemplation of marriage, living together, or formalisation of the relationship. He claimed the parties did not attend a number of significant events together such as the applicant's graduation or work functions. He denied they offered emotional support to each other, even in times of emotional distress. He gave evidence that he imposed no expectations on the applicant, such as exclusivity, and was not aware of his activities much of the time.
4. I reject the applicant's arguments and his ultimate contention that the parties had a relationship as a couple living together on a genuine domestic basis. I accept the parties over many years attended social events, and bushwalking groups, often as a pair, which appeared at times to mark them as a couple. I also accept that on occasion they interacted in a warm and quietly affectionate way in the presence of family or friends. They also shared Christmas and Easter throughout the relationship.
5. But taking account of the discussion of all the matters above at [87]-[141], I am unable to accept the Suburb C property was the parties' "forever home" or a shared residence. I have already referred to the fact that the applicant never claimed the Suburb C property as his residential address, and failed to nominate his relationship status as "de facto", in documents submitted to governmental and revenue authorities. As mentioned, the parties maintained separate personal finances, and the respondent undertook a substantial renovation of the Suburb C property with minimal involvement of the applicant. Overall, I do not entirely accept the evidence of the applicant about his domestic contributions at the Suburb C property, such as cooking, washing and cleaning. I do not accept his evidence about providing care to the respondent's mother at the Suburb C property.
6. I find that the parties lacked a mutual commitment to a shared life. The level of sharing was limited and I am not satisfied the parties held the same commitment to the relationship, which undermines the existence of a necessary level of mutuality. The applicant was likely more emotionally dependent upon the respondent, who, on the other hand, was comfortable maintaining a higher degree of separateness between the parties, despite a level of affection (Cizek & Mihov [2024] FedCFamC1A 151 at [9], [36]). I accept the evidence of the respondent that he at no time had any expectations of the applicant, nor required exclusivity. I accept there was a level of consistency and regularity in the pattern of the parties' interactions and shared experiences, but this did not ever reach the level of a merger of two lives. Objectively the relationship cannot be meaningfully distinguished from a long term close friendship involving sex.
7. A further factual matter which supports this conclusion is the way the parties conducted themselves after the applicant claimed the relationship had broken down. A finding that a de facto relationship has broken down is not precluded by the presence of an ongoing relationship of some sort (Fairbairn at [29]). Here the existence of an ongoing relationship is a matter which militates against finding a de facto relationship existed at any point in time. Despite the applicant asserting the de facto relationship ended in October 2023, he claimed he continued to visit and engage in sexual intercourse with the respondent at the Suburb C property on occasion for about six months. The parties spent Christmas 2023 together and attended group bushwalks in March 2024 appearing as a couple, though he agreed they were not. The relationship that continued between the parties after October 2023 is relevant, in the sense that, as the respondent submitted, there was objectively no material difference in how the parties conducted themselves and spent time together before and after the date of separation promoted by the applicant. In other words, there was no persuasive basis in the evidence to distinguish the nature of the relationship between the period when the applicant asserted there existed a de facto relationship and the period when, even on his case, there did not.
8. Taking all of the above matters together, even on an impressionistic evaluation of the facts generous to the applicant, I cannot find the parties ever had a relationship as a couple living together on a genuine domestic basis, and therefore the criterion in s 4AA(1)(c) is not satisfied.
9. Accordingly, the Court's jurisdiction under Pt VIIIAB is not attracted and the applicant's application must be dismissed. It also follows that the declaration sought by the respondent that a de facto relationship never existed between the parties should be made.
10. While strictly unnecessary, in the event the matter is taken further, it is appropriate to express the conclusion I would have reached if the Court's jurisdiction had been attracted, at least on the question of whether it would be just and equitable to disturb the existing property interests.

PART VIIIAB

1. Part VIIIAB of the Act sets out the legislative provisions relating to property orders that may be sought when parties were in a de facto relationship. The central provision is s 90SM of the Act, which gives the Court power to make such orders for alteration of property interests as it considers appropriate.
2. These proceedings were heard after 10 June 2025, so the amendments to the Act brought into effect by the Family Law Amendment Act 2024 (Cth) apply.
3. Section 90SM(1) empowers the Court to make such orders as it considers appropriate in "altering the interests of the parties to the de facto relationship" in "the property of the parties to the de facto relationship or either of them".
4. Section 90SM(2) of the Act provides that:

The court must not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.

1. In Stanford v Stanford [2012] FamCAFC 1; (2012) 247 CLR 108 ("Stanford") the High Court commented at [36] on the meaning of "just and equitable" in the equivalent s 79(2) as follows:
   1. The expression "just and equitable" is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds...

1. Stanford at [40] also made clear that "[t]o conclude that making an order is 'just and equitable' only because of and by reference to various matters in [s 90SM(4) and s 90SM(5)], without a separate consideration of [s 90SM(2)] would be to conflate the statutory requirements and ignore the principles laid down by the Act" (emphasis original). The requirement to make an order that is just and equitable permeates the entire decision-making process and is not a threshold issue (Martin & Newton [2011] FamCAFC 233; (2011) FLC 93-490 at [306]; Bevan & Bevan [2013] FamCAFC 116; (2013) FLC 93-545 ("Bevan") at [62], [86]).
2. If the Court is satisfied that it is just and equitable to make a property adjustment order, the Court is obliged to consider the matters set forth in s 90SM(4) and s 90SM(5).
3. The Court is required to make orders which are not only "just and equitable" but also "appropriate" (Zao & Lee [2019] FamCAFC 169 at [48]; Aitken & Aitken [2023] FedCFamC1A 69; (2023) FLC 94-142 at [59]). Section 90SS grants specific powers to make a range of different orders to adjust property interests.
4. These judicial statements and the approach they articulate apply with equal force to an application for determination under Pt VIIIAB of the Act, particularly s 90SM in relation to a de facto relationship.

ASSETS, LIABILITIES AND FINANCIAL RESOURCES AT THE DATE OF THE HEARING

1. An agreed joint balance sheet was tendered by the parties, which became Exhibit H. There were no contested values on the balance sheet.
2. Based on Exhibit H, the asset pool is as follows (excluding items with a nil or zero balance):

Commonwealth Bank Account #08 (as at 19 July 2025)

Commonwealth Bank Account #85 (as at 20 July 2025)

PP Bank Term Deposit #52321784 (as at 20 July 2025)

Commonwealth Bank Account #83 (as at 14 July 2025)

Commonwealth Bank Account #16 (as at 30 June 2025)

Commonwealth Bank Mastercard Platinum #78 (as at 19 July 2025)

1. I consider it appropriate to explain my reasons concerning the determination required by s 90SM(2) at this point, which I would have made if the Court's jurisdiction was attracted, contrary to my conclusion above.
2. The considerations set forth in s 90SM(4) and s 90SM(5) of the Act may inform both the exercise of the discretion in deciding whether it is just, equitable and proper to make an order and then in evaluating what that order should be, but it is not mandatory to consider them for this purpose (Cosola & Moretto [2023] FedCFamC1A 61; (2023) 66 Fam LR 480 at [41]-[43]; Costello & Langdon [2024] FedCFamC1A 168; (2024) FLC 94-212 at [38]). I have considered them only to the extent explained in the following discussion.
3. For the reasons which follow, I am not satisfied, after taking account of the following matters, which, I observe, would also fall for consideration in s 90SM(4) or s 90SM(5), it would be just and equitable to make any order adjusting the parties' existing property interests in this matter.
4. In doing so, several fundamental points should preface the discussion. The question of whether it is just and equitable to make an order "is not to be answered by assuming that the parties' rights or interests in marital property are or should be different" from those at the time when the discretion may be exercised (Stanford at [37]-[39], [50]; Wirth v Wirth [1956] HCA 71; (1956) 98 CLR 228 at 231-232 and 247-248). There is no presumption of equal sharing of property interests or community property in Australian law (Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605 ("Mallet")). Unless and until property rights or interests are adjusted pursuant to s 79 or s 90SM, one spouse has no inchoate or other proprietary interest in the exclusive property owned by the other spouse (Bevan at [80]; Lin & Ruan [2021] FamCAFC 90; (2021) FLC 94-024 at [41], [48]-[49]; Sarto & Sarto [2022] FedCFamC1A 16; (2022) 65 Fam LR 605 ("Sarto") at [19]; Agnarsson & Agnarsson (No 4) [2024] FedCFamC1F 407 at [46]; B Pty Ltd & Anker (2025) 71 Fam LR 358 at [16]). It is wrong to assume that one spouse enjoys an inchoate interest in the exclusive property of the other spouse "simply because it was acquired during the marriage" (Sarto at [24]). Until the Court exercises its discretion to adjust property interests and unless restrained by an injunction made under s 114 of the Act, the spouses may each exert the full measure of their property rights against third parties and one another (Kartal & Templeman [2022] FedCFamC1A 46 at [53]).
5. A large disparity in the financial positions of the parties, of itself, does not justify alteration of the property of the parties; the objective is not to equalise the financial strengths of the parties, but to effect a redistribution of the parties' property if it be just and equitable to do so (Mallet per Wilson J at 638; Clauson and Clauson [1995] FamCA 10; (1995) FLC 92-595 at 81,912).
6. To repeat, the parties kept their financial affairs almost entirely separate, never owned property jointly, never held joint bank accounts, and paid their own way individually or by occasional reimbursement for outings and living expenses such as food.
7. The applicant is 46 years of age, and has good health. He has cash savings of at least $104,885, shares worth $27,534 and superannuation of $150,155. He owns, and has owned for many years, a property to live in, at Suburb U, with his brother which is unencumbered. He has no liabilities of any significance. The applicant presently claims weekly income of $223 or about $11,500 per annum. However, he gave no clear evidence about his capacity for future employment, although his age and employment history up to trial permits the inference that he has capacity for gainful employment. This was conceded in his Case Outline filed 5 January 2026 and at final submissions. His curriculum vitae and tax returns for the financial years 2017 to 2025 show a capacity to earn a much larger income and his age shows he should have at least several decades of earning capacity ahead of him.
8. The respondent is 74 years of age and retired. He has good health. He has modest superannuation of $11,538. He owns the Suburb C property unencumbered, worth $6,850,000, and his boat which has a value of $92,500. He has owned the Suburb C property since 1992, many years before meeting the applicant. Its current value is at least partially a result of the time and money he spent in renovating it in 2010 to 2012. The property is his only source of income, through renting rooms to lodgers.
9. As mentioned, the applicant claims an adjustment of property interests dividing the available property 40 per cent to him. Any orders altering the property interests to award the applicant additional property beyond his existing interests would require the respondent to either sell the Suburb C property or borrow money then service the loan, for example, by drawing upon an existing line of credit (CBA #83). Indeed, the applicant points to this resource as demonstrating a capacity to meet any order for cash adjustment in his favour.
10. The applicant also pointed to the likelihood that the respondent would receive support and an inheritance from his mother who will turn 100 years of age in March 2026 and owns a property in Suburb QQ. However, while the respondent's mother is alive, this remains only a possible source of further financial means, and the respondent's mother was clear in her evidence that she will not sell her property during her lifetime because this would preclude her from receiving the aged pension.
11. In my view, the matters referred to above at [166]-[172] would constitute a separate and sufficient basis to refuse any adjustment to the parties' property. They rule out satisfaction that any order adjusting property would be just and equitable. I am not persuaded it would be just and equitable to force the respondent to either sell the Suburb C property, or incur substantial debt obligations at his age, when the applicant has property, material superannuation, no liabilities, and a capacity for many more years of employment. These matters would be sufficient reason to refuse the application for property adjustment.
12. For these reasons I would not be satisfied it is just and equitable to make any orders disturbing the existing property of the parties.
13. It is also inappropriate, for the same reasons, to make the declaration sought by the respondent that the applicant did not make contributions of the kind contained in ss 90SM(4)(a), 90SM(4)(b) and 90SM(4)(c).

1. For all the foregoing reasons the application for property adjustment orders should be dismissed.

1. I will order that any party who seeks costs to file the relevant application within 28 days of these orders.

I certify that the preceding one hundred and seventy-seven (177) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper.

SCHEDULE 1 - MATERIAL TENDERED AND RELIED UPON BY THE PARTIES

Applicant's application for Subclass 880 (Skilled) visa dated 2002

Applicant's application "Authorisation of Person to Act and Receive Communication" dated 2002

Applicant's application for Australian Citizenship dated October 2010

Applicant's Working with Children Check application dated 6 September 2020

Copy of birthday card respondent gave to applicant in 2024

Collection of WhatsApp messages between the parties from December 2017 to May 2024

Photographs referred to at paragraphs 36 to 41 in affidavit of Mr HH filed 24 November 2025

Card addressed to "[Mr RR] + [Mr SS]" from "[Mr Braun] & [Mr Sanchez]" dated 25 December 2021

Document prepared by respondent in response to applicant's reply affidavit filed 15 December 2025

Commonwealth statement for account number #83 of respondent