Davies v Richardson

Supreme Court of NSW|2011-03-11|Before: Slattery J

Judgment 1Steven Davies and Rebecca Richardson ask the Court to determine a preliminary question in these proceedings as to when their de facto relationship ceased. Commencing in 1999 they lived together for more than nine years and had two children. If their relationship continued until 1 March 2009 and broke down only after that date then the Family Court of Australia has exclusive jurisdiction to resolve the property and financial issues between them. But if the relationship ended prior to that date this Court has jurisdiction under the Property (Relationships) Act 1984 (NSW) to adjust the couple's interest in property. 2Mr Davies, the plaintiff, contends that the relationship ended in August 2008 when Ms Richardson left their joint home in Randwick with their two children. Ms Richardson, the defendant, contends that she left the joint home to work on their relationship and that despite their separation the relationship continued until about late March 2009. Mr Davies points to incidents in early August 2008 which he says are markers of the termination of the relationship at that time. Ms Richardson points to similar incidents which she says indicate a termination at that later time in late March 2009. But to answer the question whether their relationship survived until 1 March 2009 the Court need not accept either party's view as to when the relationship ended. Indeed the Court finds in these reasons that Mr Davies is wrong and Ms Richardson is right, that their relationship did survive past August 2008. But for the reasons which follow, the Court concludes that their relationship had ended before 1 March 2009. 3The beguiling subtlety of human relationships makes it more than slightly artificial to pronounce in a courtroom the date by which Mr Davies and Ms Richardson's domestic relationship ended. But laws passed in Federal Parliament command judicial officers to do this. I will first analyse these laws that require the Court to examine information and communications that would otherwise belong only to the parties.

History of Legislation 4The Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) (" the Amendment Act ") came into effect on 1 March 2009. The Amendment Act inserted Part VIIIAB "Financial Matters Relating to De Facto Relationships" into the Family Law Act 1975 (Cth). This Part gives effect to agreements made between certain States of the Commonwealth, including New South Wales, to refer financial matters arising out of the breakdown of de facto relationships to the Commonwealth under the Constitution. The Amendment Act provides a mechanism for all the referred matters arising out of the breakdown of a de facto relationship to be brought by parties in the Family Court of Australia. The new Part VIIIAB of the Family Law Act provides the Family Court of Australia with broader discretionary powers with respect to the property and financial matters of parties to de facto relationships than exists under Property (Relationships) Act 1984, s 20. Some of these differences are briefly identified below. But the scope of these differences is of less relevance in the present application than the threshold question of whether Part VIIIAB applies in relation to Mr Davies and Ms Richardson's de facto relationship. 5The application of the new Part VIIIAB of the Family Law Act to de facto relationships is regulated by transitional provisions in the Amendment Act : Amendment Act , Schedule 1, Part 2. Item 86 of these transitional provisions relevantly provides: "86. De facto relationships that broke down before commencement (1) Subject to item 86A, Parts VIIIAB and VIIIB, and subsection 114(2A), of the new Act do not apply to a de facto relationship that broke down before commencement. (2) To avoid doubt, section 90RC of the new Act does not exclude the operation of any State or Territory law in relation to the de facto relationship." 6"Commencement" is defined as meaning the commencement of Schedule 1 of the Amendment Act : cf Amendment Act , Schedule 1, Item 85. Schedule 1 commenced on 1 March 2009: Amendment Act , s 2(1). 7Item 86 is made subject to Item 86A. But Item 86A relates to the situation of parties to a relationship that admittedly broke down before commencement on 1 March 2009, where those parties choose in writing to have Part VIIIAB and other parts of the Family Law Act apply in relation to their de facto relationship: Item 86A. Mr Davies and Ms Richardson have not agreed in this case to have Family Law Act , Part VIIIAB apply to their de facto relationship. Item 86A has no application here. The Amendment Act does not define what the expression "broke down before commencement" means in 86(1). The Amendment Act adds to the Family Law Act a definition, in relation to "breakdown" that "(b) in relation to a de facto relationship by reason of death". But apart from this exclusion, the Amendment Act does not otherwise add to the ordinary meaning of the word. This is so even though the exercise of the Family Court of Australia's powers under Part VIIIAB are predicated upon the Court acting, "after the breakdown" of a de facto relationship. 8The meaning of "broke down before commencement" is clear enough. The Macquarie Dictionary relevantly defines break down as "to collapse" or "to cease to function". And the Shorter Oxford Dictionary defines "break down" as "the act of breaking and falling down; a collapse". As this case illustrates, relationships tend to decline over time. But the question whether a de facto relationship "broke down" before 1 March 2009 is really one of whether the de facto relationship had come to an end. That in my view can be determined readily by looking at the circumstances that the Court is required to examine under Property (Relationships) Act 1984, s 4 to determine whether or not a relationship exists on 1 March 2009. If the Court can determine under Property (Relationships) Act , s 4(2) that two persons are in a de facto relationship, then that conclusion is incompatible with the relationship having broken down. If the Court can no longer infer that two persons; who were once in a de facto relationship that satisfied the statutory criteria in Property (Relationships) Act , s 4(2), are still in such a relationship, then it is an apt use of language to say that their relationship has "broken down". 9In my view, the present task for the Court is to determine whether as at 1 March 2009 Mr Davies and Ms Richardson's relationship had ended, such that the relationship no longer qualified as a de facto relationship under Property (Relationships) Act , s 4. This approach is consistent with that adopted by Slack FM in Vine v Carney [2009] FMCA Fam 1017 [18] with which I respectfully agree. 10His Honour there said of the term "break down" in Schedule 1, Item 86: "I consider though that the term breakdown in the context of the Act and having regard to the referral of powers by participating States, should be interpreted such that the Court, before exercising power under the Act, should be satisfied, according to the requisite standard of proof (the balance of probabilities), that the de facto relationship had broken down to the point that it had failed and had ended." 11A number of authorities discuss how the Court should approach the analysis of whether a de facto relationship continues to exist or has ended upon separation. These authorities show that the task can involve somewhat different analysis than that applicable when inferring the existence of a de facto relationship in the first place. These authorities are discussed below. 12But first it is useful to examine more closely the relevant provisions of the Amendment Act . The principally relevant sections that the Amendment Act introduced into the Family Law Act are as follows. 13Section 4AA(1) of the Family Law Act defines a de facto relationship in terms that closely parallel the requirements for such a relationship in the Property (Relationships) Act : "Meaning of de facto relationship (1) A person is in a de facto relationship with another person if: (a) the persons are not legally married to each other; and (b) the persons are not related by family (see subsection (6)); and (c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis. Paragraph (c) has effect subject to subsection (5). Working out if persons have a relationship as a couple. (2) Those circumstances may include any or all of the following: (a) the duration of the relationship; (b) the nature and extent of their common residence; (c) whether a sexual relationship exists; (d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them; (e) the ownership, use and acquisition of their property; (f) the degree of mutual commitment to a shared life; (g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship; (h) the care and support of children; (i) the reputation and public aspects of the relationship." 14The possible relevant circumstances in section 4AA(2) differ from those in Property (Relationships) Act , s 4(2) only in one respect, which is not of great weight in the present case. Instead of paragraph 4AA(2)(g), Property (Relationships) Act , s 4 lists "the performance of household duties". Mr Davies and Ms Richardson's relationship was not registered under a prescribed law. The appropriate definition of a de facto relationship to which the Court must look to determine whether a de facto relationship has broken down is that under the Property (Relationships) Act . But in this case, as will be seen below, the result does not depend on whether special regard is had to the circumstances of the performance or otherwise of household duties. 15The Courts' powers under the Family Law Act to adjust the property of parties of a de facto relationship that breaks down after 1 March 2009 are wider than those that apply under the Property (Relationships) Act . Specifically under the new Part VIIIAB the Family Court of Australia has for example jurisdiction to take into account the future needs and any anticipated changes in the financial circumstances of the parties, powers not available under the Property (Relationships) Act . Some of these special features are set out in sections 90SL, 90SM(4) and (4) and 90SF(4). 16Section 90SL refers to declarations in relation to the rights and title of de facto partners after the breakdown of the de facto relationship: "Declaration of interests in property (1) In proceedings between the parties to a de facto relationship: (a) after the breakdown of the de facto relationship; and (b) with respect to existing title or rights in respect of property; the court may declare the title or rights, if any, that a party has in respect of the property. (2) If a court makes a declaration under subsection (1), it may make consequential orders to give effect to the declaration, including orders as to sale or partition and interim or permanent orders as to possession." 17Section 90SM(4) and (5) refers to the adjustment of interests in property between de facto partners where there has been a break down of the relationship: "(4) In considering what order (if any) should be made under this section in property settlement proceedings, the court must take into account: (a) the financial contribution made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship: (i) to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or (ii) otherwise in relation to any of that lastmentioned property; whether or not that lastmentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and (b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship: (i) to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or (ii) otherwise in relation to any of that lastmentioned property; whether or not that lastmentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and (c) the contribution made by a party to the de facto relationship to the welfare of the family constituted by the parties to the de facto relationship and any children of the de facto relationship, including any contribution made in the capacity of homemaker or parent; and (d) the effect of any proposed order upon the earning capacity of either party to the de facto relationship; and (e) the matters referred to in subsection 90SF(3) so far as they are relevant; and (f) any other order made under this Act affecting a party to the de facto relationship or a child of the de facto relationship; and (g) any child support under the Child Support (Assessment) Act 1989 that a party to the de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the de facto relationship. (5) Without limiting the power of any court to grant an adjournment in proceedings under this Act, if, in property settlement proceedings in relation to the parties to a de facto relationship, a court is of the opinion: (a) that there is likely to be a significant change in the financial circumstances of the parties to the de facto relationship or either of them and that, having regard to the time when that change is likely to take place, it is reasonable to adjourn the proceedings; and (b) that an order that the court could make with respect to: (i) the property of the parties to the de facto relationship or either of them; or (ii) the vested bankruptcy property in relation to a bankrupt de facto party to the de facto relationship; if that significant change in financial circumstances occurs is more likely to do justice as between the parties to the de facto relationship than an order that the court could make immediately with respect to: (iii) the property of the parties to the de facto relationship or either of them; or (iv) the vested bankruptcy property in relation to a bankrupt party to the de facto relationship; the court may, if so requested by either party to the de facto relationship or the relevant bankruptcy trustee (if any), adjourn the proceedings until such time, before the expiration of a period specified by the court, as that party to the de facto relationship or the relevant bankruptcy trustee, as the case may be, applies for the proceedings to be determined, but nothing in this subsection requires the court to adjourn any proceedings in any particular circumstances." 18Section 90SF(3) requires the Court to consider the future needs of the parties following the breakdown of a relationship. It relevantly provides: "(3) The matters to be so taken into account are: (a) the age and state of health of each of the parties to the de facto relationship (the subject de facto relationship ); and (b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and (c) whether either party has the care or control of a child of the de facto relationship who has not attained the age of 18 years; and (d) commitments of each of the parties that are necessary to enable the party to support: (i) himself or herself; and (ii) a child or another person that the party has a duty to maintain; and (e) the responsibilities of either party to support any other person; and (f) subject to subsection (4), the eligibility of either party for a pension, allowance or benefit under: (i) any law of the Commonwealth, of a State or Territory or of another country; or (ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia; and the rate of any such pension, allowance or benefit being paid to either party; and (g) a standard of living that in all the circumstances is reasonable; and (h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and (i) the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and (j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and (k) the duration of the de facto relationship and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and (l) the need to protect a party who wishes to continue that party's role as a parent; and (m) if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and (n) the terms of any order made or proposed to be made under section 90SM in relation to: (i) the property of the parties; or (ii) vested bankruptcy property in relation to a bankrupt party; and (o) the terms of any order or declaration made, or proposed to be made, under this Part in relation to: (i) a party to the subject de facto relationship (in relation to another de facto relationship); or (ii) a person who is a party to another de facto relationship with a party to the subject de facto relationship; or (iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or (iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and (p) the terms of any order or declaration made, or proposed to be made, under Part VIII in relation to: (i) a party to the subject de facto relationship; or (ii) a person who is a party to a marriage with a party to the subject de facto relationship; or (iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or (iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and (q) any child support under the Child Support (Assessment) Act 1989 that a party to the subject de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the subject de facto relationship; and (r) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and (s) the terms of any Part VIIIAB financial agreement that is binding on either or both of the parties to the subject de facto relationship; and the terms of any financial agreement that is binding on a party to the subject de facto relationship." 19Prior to the Amendment Act couples in de facto relationships were required to apply to the Local Court or the Supreme Court in New South Wales for determination of the division of property and payment of maintenance upon the breakdown of their relationships. But they had to apply to the Family Court of Australia for determination of child custody disputes. The Amendment Act is the legislative product of an agreement between the Commonwealth, States and Territories under the Constitution to refer the necessary powers to the Commonwealth to bring all family law issues associated with the breakdown of a de facto relationship into the federal family law regime. The Amendment Act was intended to simplify proceedings for parties involved in the breakdown of a de facto relationship. This was partly to reduce the need for couples to expend costs in litigating in two court systems. An incidental effect is said to be the reduction of the administrative burden on both the federal and state court systems. 20Part VIIIAB, s 90 RC of the Family Law Act gave the Family Court of Australia exclusive jurisdiction to hear and determine disputes between de facto couples whose relationship broke down after 1 March 2009: " (1) De facto financial provisions In this section: de facto financial provisions means the following provisions: (a) this Part; (b) Part VIIIAA (as applied by section 90TA); (c) Part VIIIB, to the extent to which it relates to a superannuation interest to be allocated between the parties to a de facto relationship; (d) subsection 114(2A). (2) State and Territory laws do not apply to financial matters Parliament intends that the de facto financial provisions are to apply to the exclusion of any law of a State or Territory to the extent that the law: (a) deals with financial matters relating to the parties to de facto relationships arising out of the breakdown of those de facto relationships; and (b) deals with those matters by referring expressly to de facto relationships (regardless of how the State or Territory law describes those relationships)." 21But as Amendment Act , Schedule 1, Item 86(2) provides, s 90RC does not exclude the operation of State laws, which continue to operate with respect to de facto relationships not captured by the new Part VIIIAB. 22My findings in this judgment as to whether there was a relationship on 1 March 2009 will decide whether this Court has jurisdiction to determine this matter or whether the Family Court of Australia has jurisdiction under Family Law Act , Part VIIIAB. 23In their motions for determination of this separate question under UCPR , r 28.2 the parties have formulated the question at issue in slightly different ways; the defendant, Ms Richardson, as "Did the parties finally separate on , before or after 1 March 2009?"; and Mr Davies as "What was the date of the break down of the de facto relationship between the plaintiff and the defendant?" From my earlier analysis of the applicable legislation I do not think that either formulation is entirely apt. The appropriate question is that raised by Amendment Act , Schedule 1, Item 86 "Did the plaintiff's and the defendant's de facto relationship break down before the commencement of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 on 1 March 2009". For the reasons set out below, in my view, that question should be answered in the affirmative. The parties should include this formulation of the question in their short minutes of order giving effect to these reasons.

Breakdown of a De Facto Relationship 24As I have mentioned above the term "breakdown" is not defined in the Amendment Act , except to exclude the breakdown of a de facto relationship by death of one of the parties: Family Law Act , s 4. But some guidance is provided to the Court from previous authority regarding when a de facto relationship ceased in relation to a separation of the parties. 25The authorities explain the effect that a separation has on the inference of the existence of a de facto relationship after separation. The mere decision not to live together with the other party may in some cases allow the Court to infer the end of the relationship. As Justice Mahoney held in Hibberson v George (1989) 12 Fam LR 725 at 739-740 (whom Hope and McHugh JJ agreed) a case dealing with an earlier form of the Property (Relationships) Act : "The relationship of marriage, being based in law, continues notwithstanding that all of the things for which it was created have ceased. Parties will live in the relationship of marriage notwithstanding that they are separated, without children, and without the exchange of the incidents which the relationship normally involves. The essence of the present relationship lies, not in law, but in a de facto situation. I do not mean by this that cohabitation is essential to its continuance: holidays and the like show this. But where one party determines not to "live together" with the other and in that sense keeps apart, the relationship ceases, even though it be merely, as it was suggested in the present case, to enable the one party or the other to decide whether it should continue." 26In S v B (No. 2) [2005] 1 Qd R 537, Dutney J (with whom McPherson and William JJA agreed) applied the principles stated in Hibberson v George and his Honour said (at [48]): "A de facto relationship ends when one party decides he or she no longer wishes to live in the required degree of mutuality with the other but to live apart. It does not seem to me that it is necessary to communicate this intention to the other party provided that the other party that is desirous of ending the relationship acts on his or her decision. I do not think it is necessary that the other party agree with or accept the decision. Once the parties cease to jointly wish to reside together in a genuine domestic relationship, a situation usually ascertained by looking objectively at the whole circumstances of the relationship, the relationship ceases. The relationship ceases even though one of the parties is still anxious to try to save it." 27His Honour continued (at [49]): "there is a difference between a marriage and a de facto relationship" and concluded further (applying Pavey v Pavey [1976] FLC 90-051) that: "A party asserting the continuing relationship must prove the positive aspects of the relationship rather than the party asserting separation being required to prove negatives": S v B (No. 2) [2005] 1 Qd R 537 (at [50]). 28But short separations may not end a relationship. The New South Wales Court of Appeal in Gazzard v Winders (1998) 23 Fam LR 716. In that case Justice Beazley in contrast to Powell JA and with the agreement of Stein JA found that it was not in the spirit of the De Facto Relationships Act (1984) (NSW), as the legislation was then known, or reality to find that a short interruption that " which, in a long relationship may be no more than a hiccup, would have completely brought the relationship to an end " (at [20]). 29The effect of a period of separation on a de facto relationship may influenced by the presence of a third person during the separation period. In Thompson v Badger (1990) DFC 95-078 several periods of separation were not seen as fatal to the inference of a de facto relationship. However an element in determining that such separation periods did not signify that the relationship was at an end was not only that the parties eventually reconciled after their periods of separation, but that neither party had another sexual partner during the times of separation. 30The potential of a third person to affect the de facto status of a couple during their period of separation was evident in Lipman v Lipman (1989) DFC 95-068. There Powell J found that a separation of 6 months in a long de facto relationship that ended the relationship when one party had required another to leave the shared residence, and had asked another woman to take the place of his partner and live with him. 31Thus the Court will examine whether Mr Davies and Ms Richardson's de facto relationship broke down before 1 March 2009. The circumstances that govern the Court's inferring the existence of such a relationship are as at 1 March 2009 the matters set out in s 4(2) of the Property (Relationships) Act 1984. Section 4 of the Property (Relationships) Act provides as follows:- " De facto relationships (1) For the purposes of this Act, a de facto relationship is a relationship between two adult persons: (a) who live together as a couple, and (b) who are not married to one another or related by family. (2) In determining whether two persons are in a de facto relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as may be relevant in a particular case: (a) the duration of the relationship, (b) the nature and extent of common residence, (c) whether or not a sexual relationship exists, (d) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties, (e) the ownership, use and acquisition of property, (f) the degree of mutual commitment to a shared life, (g) the care and support of children, (h) the performance of household duties, (i) the reputation and public aspects of the relationship. (3) No finding in respect of any of the matters mentioned in subsection (2) (a)-(i), or in respect of any combination of them, is to be regarded as necessary for the existence of a de facto relationship, and a court determining whether such a 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. (4) Except as provided by section 6, a reference in this Act to a party to a de facto relationship includes a reference to a person who, whether before or after the commencement of this subsection, was a party to such a relationship." 32In this case all the above circumstances are relevant to determining whether there was a de facto relationship between Mr Davies and Ms Richardson at the requisite time. The relevant significance of each of the s 4(2) matters is discussed in the course of the chronological account of the parties' relationship which is set out below.

1997 to 2007 33Ms Richardson and Mr Davies commenced a romantic relationship in about August 1997. At that time she was living in Sydney and the Australian Capital Territory. Mr Davies was living in both in Sydney and Newcastle. When they met they were both working in demanding professional occupations. Mr Davies was a naval architect and Ms Richardson a planning consultant. 34At the time they met their relationship was geographically difficult. But they both had properties in Sydney. When the relationship became more established Ms Richardson moved to live permanently at her home in Dulwich Hill in Sydney. Mr Davies commuted to work in Newcastle during the week from his home in Bondi. He stayed in Sydney on weekends. Their usual arrangement was that they stayed at Mr Davies' house on Friday and Saturday nights after he returned from Newcastle but moved back to Ms Richardson's house on Sundays from where it was convenient for him to leave for Newcastle on Monday mornings. 35By March 1999 Mr Davies commenced working fulltime in Sydney. From then the couple lived in both her Dulwich Hill property and his Bondi property. Ms Richardson became pregnant in March 1999. The couple's first child, [name not published], was born in [date not published]. Following his birth they settled at the Dulwich Hill property on a fulltime basis. 36[name not published]'s birth prompted them to buy a property together as joint tenants. In December 1999 they purchased a five bedroom house at George St Randwick. Their second child [name not published] was born on [date not published]. 37Neither party gives much evidence about the relationship between 1999 and 2008. They both concede that during these 9 years there was a de facto relationship between them. Although the detail of their story resumes in December 2007, elements of their relationship in the intervening 9 years may readily be inferred from the evidence. They appear to have brought up their two children in the Randwick home, juggling each of their demanding professional careers with their domestic obligations. 38But by late 2007 maintaining their domestic life with two children, together with the pressures of their professional work environments, placed strains in their relationship. The evidence demonstrates an apparent mismatch of expectations, one of the other, about the obligations of their relationship and causing tension between them. 39In late 2007 Ms Richardson became pregnant once more. The parties' evidence is in agreement that, some time in December 2007 that their sexual relationship ceased. Whether this was due to escalating tensions in their relationship, or the pregnancy itself or Ms Richardson's miscarriage in early 2008 lies beyond ready legal analysis. But both of them give an account from different perspectives that by the first quarter of 2008 their relationship became increasingly stressed. Mr Davies says that in this period Ms Richardson "totally withdrew from our relationship, physically and emotionally" and asked him to move out. Her account of the period is that her relationship with Mr Davies "became stressed".

January - May 2008 40The period January to March 2008 contains an important difference in the evidence of the parties communications about their relationship. The difference relates to the conditions that Mr Davies said he placed upon Ms Richardson's express desire to move out of the house for a period. Ms Richardson says that conversations about her moving out of the house did not occur until June 2008. But Mr Davies says they started earlier, as early as the first quarter of 2008 and were in the following terms:- Ms Richardson: "I want you to move out". Mr Davies: "No. If you believe the relationship is over then you will need to move out. I will not." 41I do not accept Mr Davies' rather simplistic account of these conversations. I prefer Ms Richardson's evidence that conversations about her moving out did not occur at this time and that when the conversations did occur Mr Davies did not link her departure from the household with the ending of the relationship. Moreover, Mr Davies' version of these conversations seems to be improbable on what I have seen of both parties. 42I accept that Ms Richardson thought that she needed to live in a separate house away from Mr Davies for a period of time, in her words "to give the relationship a chance to heal". I accept that this was her intention by June 2008. But that position was only reached after a number of discussions in the first half of 2008 in which Ms Richardson had asked him to move out of the house so that she could have the space that she needed to work on her relationship with Mr Davies away from daily contact with him. This attitude on her part is to be inferred not just from her own evidence but from parts of Mr Davies' evidence. For example I accept Mr Davies' evidence that he raised with her the possibility that she may be suffering from depression and in April she responded to him "I am definitely not depressed. I have never had so much clarity on an issue in my life, and I know that I can't stay with you and work on our relationship." I accept Mr Davies' evidence that she did say this to him. The later email evidence between the couple supports the conclusion that she formed this view that repair of and regrowth in their relationship needed a separation. I find that she formed this view before June 2008. 43But I do not accept Mr Davies' version of his response to this proposal. It is quite unlikely that he would have said to her "if you believe the relationship is over then you will need to move out". I accept her evidence that at this time she did not believe the relationship was over and did not intimate to him that she did have any such belief. The only part of his version of the conversation that I accept was true is when he said "I will not". This led to further tension between the parties. The reason that Ms Richardson expressed that she wanted to work on the relationship in his absence was her underlying anxiety about his daily insensitivity to her needs. His refusal to move out was itself a continuing demonstration in her mind of that insensitivity. Ultimately, in my view, it fortified her determination to leave. But in my view she never changed her mind: her purpose in leaving was to work on the relationship, not to end it. She was confident that she could do this, but as it turned out, she was overconfident. 44Mr Davies refused to leave. He admitted as much in evidence. This presented her with a dilemma. To work through the relationship the way that she wanted, with space for her and the children and a greater degree of control in her life, meant that she would have to leave the house. She then proposed this course to him in June 2008. 45Between April and June 2008 the couple attended several counselling sessions. Ms Richardson seemed to think that they were beneficial. Mr Davies was ambivalent as to their benefit. There were differing views between the couple on the evidence about the result of counselling. Mr Davies says that Ms Richardson made clear to him in May 2008 "that our relationship was over and that she did not wish to stay together to continue to work on the relationship". In my view Mr Davies misunderstood what Ms Richardson was communicating to him. He is correct in saying that she did not wish to stay with him to work on the relationship. She had formed the view that rebuilding the relationship was best done separately for a period. Ms Richardson did not say to him that "our relationship was over". Her participation in counselling would have had little point if this had been her attitude. Rather, I find that she communicated to him between April and June 2008 that she wanted to work on the relationship at a distance for a period. 46In my view Mr Davies simply did not comprehend this action. I do not think that he properly absorbed what she was saying when she said that she needed to move out to reduce the tension between them for a trial period. On his side the situation was exacerbated by her failure to show him any demonstrative signs of physical affection. Exactly what she said about this is disputed. But the detail does not really matter for what the Court has to decide. His claim was that she withdrew physical affection from him during this period is not essentially disputed in her evidence. He says, and I accept, that from around about May 2008 he did not touch her, they did not sleep together, kiss, hug or hold hands. Indeed I also accept Mr Davies' evidence that in about May or June 2008 they began sleeping in separate rooms and that she began to eat her meals separately from him. Mr Davies says that she explained at the same time that the reason for this was that "I feel totally withdrawn from our relationship and want you to move out". Whilst I accept that she probably did say something like this, it was not said in isolation from statements that their separation was so that she could, as she said, "ease the tension" between them. 47The evidence makes clear that she was trying to maintain the relationship at this time. Both her behaviour after separation and her communications with him are a basis to infer this. In my view he simply screened out the parts of what she was saying to him that did not fit his worldview.

June 2008 48I find that there was a conversation in June 2008 between the couple in words to the effect that Ms Richardson deposes: "Ms Richardson: 'I am willing to move out of our home for a short period. Let's see if that eases the tension between us.' Mr Davies: 'For how long?' Ms Richardson: 'I don't know, up to, say, six months.' Mr Davies: 'Where would you go?' Ms Richardson: 'Patrick's house might be available.' Mr Davies: 'I was wondering about that too.' Ms Richardson: 'I will talk to Patrick about it.'" 49Prior to her relationship with Mr Davies, Ms Richardson had been married to a Mr Patrick Keyzar. After their divorce they remained friends. About the time of this conversation with Mr Davies in June 2008 she arranged with Mr Keyzar to rent the two bedroom home that he owned at Coogee on an informal basis. The place was close to her Randwick home with Mr Davies. The conversation to which she deposes gives the impression that she had not discussed this possibility with Mr Keyzar before her conversation with Mr Davies. But I do not accept this part of her evidence. It became clear from her cross-examination that she had already discussed the rental of Mr Keyzar's property before broaching with Mr Davies the subject of moving out. To that extent her evidence "I will talk to Patrick about it" is inaccurate. However the thrust of the conversation as she recalls it I otherwise accept as a correct account. 50Mr Davies had quite a different version of what was said between them about Ms Richardson's proposal to move out. His version was that she communicated to him that she did not wish to work on or continue the relationship and she communicated her desire to move into her ex-husband's house in the following terms: "Ms Richardson: 'I am moving our. I am going to Patrick's house.' I replied along the lines of: Mr Davies: 'Well this is not sustainable, living separately under the one roof. When are you intending to come back?' Ms Richardson: 'I don't know.' Mr Davies: 'Are you intending to come back at all?' Ms Richardson: 'I can't say.' Mr Davies: 'So this is indefinite. What am I expected to do in terms of my emotional and physical needs- get a new girlfriend?' Ms Richardson: 'I don't care; you can do whatever you like'. Mr Davies: 'Then it's over.'" 51Ms Richardson accepted that a great deal of this was actually said. Her only real dispute was that Mr Davies said to her "Then it's over". 52I prefer Ms Richardson's evidence about this conversation. Mr Davies did not say at that point "then it's over". She had not by then carried through her intention to leave. Such a dramatic statement seems quite premature. According to Mr Davies she had been talking about leaving for some time. His subsequent email correspondence is a basis for me to infer he was still deeply attached to her emotionally. I find he was reluctant to sever their relationship abruptly. Given his then attachment to her I think it is quite unlikely that this is what he said. 53Rather, I find that she moved out not intending to end the relationship but leaving him quite uncomprehending of her plan to work on the relationship. But he seemed prepared to wait for a period. That is what he did. He did not act immediately to form another permanent relationship. Moreover, he did not issue any written ultimatum to her of the kind that he says he made verbally. He is an articulate senior manager in a major public company who is well capable of crafting and communicating an ultimatum, even in diplomatic terms. The post June email correspondence is not consistent with his having issued such an ultimatum in June 2008. The alleged ultimatum "Then its over" is not repeated or referred to in his immediate post June communications. 54The choice between Mr Davies and Ms Richardson's versions of what happened in June/July 2008 is much assisted by the evidence of her father, Professor Jack Richardson, whose affidavit was read and who was cross-examined. The impression that Mr Davies sought to give the Court about the position between the couple in June 2008 was that the relationship was really in substance over and that he gave an ultimatum to Ms Richardson which she really accepted by leaving in August. Ms Richardson's evidence on the contrary, is of a relationship still very much alive but where there were fundamental differences between the parties. Ms Richardson's version is much supported by Professor Richardson's evidence, which I accept in its entirety, and which throws light upon Mr Davies' state of mind at the time. 55Professor Richardson says, and I find, that in June 2008 a highly emotional telephone conversation took place in which Mr Davies said to Professor Richardson words to the following effect:- "Mr Davies: 'My relationship with Rebecca has deteriorated to the point that I feel unable to settle the issues between us. I have so much pride and deep love for Rebecca. I am willing to do whatever I can to restore the position. I am willing to co-operate fully as a father in Rebecca's desire to have a third child.'" 56This conversation was followed a few days later, still within June 2008, by another highly emotional telephone call from Mr Davies. Professor Richardson said, and I find, that on this second occasion Mr Davies was distraught. Professor Richardson professed concern about Mr Davies' emotional state and then they conversed further to the effect:- "Mr Davies: 'Rebecca and I are still having problems. I don't know what to do. I am still willing to do whatever I can to restore the position. She won't listen to me and she doesn't understand my position.' Professor Richardson: 'I am very sorry to hear that. I am very concerned. I will talk to Rebecca'. Mr Davies: 'Thank you. I appreciate it'." 57Whether or not Professor Richardson spoke to his daughter about this subject remains unclear on the evidence. But what is clear from this evidence is that Mr Davies at this point still saw a future in the relationship and was unlikely to have issued the kind of ultimatum to Ms Richardson which he now says he did. Professor Richardson's evidence is objectively probable. It accords with the Court's other findings about the poor state of communication between the couple. Part of Mr Davies' anxiety was expressed very accurately to Professor Richardson, when he said "she won't listen to me and she doesn't understand my position". The couple had really ceased communicating with one another. But that did not mean that he wished then and there to declare the end of the relationship and I find that he did not. 58Mr Davies acknowledged a communication with Professor Richardson at this time. Mr Davies had a very different recollection of the communication, but one that I do not accept. Mr Davies says that he had this conversation with Professor Richardson:- "Professor Richardson: 'Rebecca still seems determined to leave.' Mr Davies: 'Yes, she is definitely going to move out'. Professor Richardson: 'I can't understand it. Of course it is up to you if you ever accept her back.'" 59Professor Richardson's denied that he made these statements. From what I saw of both Professor Richardson and his daughter in the witness box, I cannot accept that he said to Mr Davies about her "Of course it is up to you if you ever accept her back". Such a statement by this father about his daughter seems highly improbable. He says, and I accept, that he has always enjoyed a close and affectionate relationship with his daughter. There were distortions in Mr Davies' evidence in places that made him in my view at times an unreliable witness. This is one of them. Professor Richardson was cross-examined about this evidence but none of that cross-examination displaced his account of what Mr Davies and he discussed in June 2008.

August 2008 60Ms Richardson left the Randwick home on 8 August 2008. She took the children with her and their family dog. She re-directed her own and their children's mail. A girlfriend assisted her to pack the removal boxes with her personal belongings, clothes and jewellery. She also took with her the furniture, the vacuum cleaners, the washing machine and the Hi Fi system. 61A number of features of this move are a basis to infer that she intended it to be permanent. First, she purchased out of joint funds a set of new appliances, a refrigerator, a TV and many other items to first fully furnish and establish her new home. This range of purchases appears inconsistent with a temporary move. Second, the amount of material that she took indicates that she thought that her stay in Coogee would be longer term rather than shorter term. Rather, the volume of what she took with her and what she purchased is best explained, in my view, as showing that she had a residual suspicion that, confident though she was, her plan to change Mr Davies may not succeed and she would need material security at her new address. 62I accept Ms Richardson's evidence that she had a conversation at the back door of the Randwick home with Mr Davies just as she was about to leave, in which she said to him, rather elliptically, "Please make sure you take this in the spirit in which it is intended". He agrees that she said this. Her statement is inconsistent in my view with a declaration on her part that the relationship was over. It is an odd statement to demonstrate an end to a relationship by moving out. The "spirit" in which she intended the departure to be taken was not as a symbol of the ending of the relationship but as a demonstration of the seriousness with which she regarded the work that had to be done to repair the relationship. Mr Davies answers in evidence indicate that he did not really understand at the time what the statement meant. This was perhaps understandable given the hurt that he obviously then felt at her having taken this very public step, which he regarded as a humiliation. 63In my view Ms Richardson left in August 2008 with the intention of returning. Her idea was, by leaving to shock Mr Davies into changing the behaviour with which she strongly disagreed, so she could start to repair the relationship. In her mind leaving was the next logical step in communicating to Mr Davies her disagreement about his behaviour, in an endeavour to persuade him to compromise more towards her outlook and expectations for the relationship. It seems to me that her message never really got through to him, as the next three to four months was really absorbed with his negative reaction to her departure. 64If Mr Davies' version of the June/July conversations is to be accepted, the status of his relationship with Ms Richardson must have been quite clear to both of them the moment that she walked out the door. If his version is to be accepted she could not possibly have misunderstood that her act of leaving was the end of the relationship. The statements subsequently made on Mr Davies' behalf are not consistent with the case he now makes. These statements are a basis to reject his present evidence. On 4 February 2010 Messrs Reid Family Lawyers wrote on Mr Davies' behalf to Messrs Barkus Doolan Kelly Family Lawyers, Ms Richardson's attorneys. Messrs Reid Family Lawyers took issue with the assertion on Ms Richardson's behalf that final separation was not communicated until after 1 March 2009. To support their assertion that the relationship ended on a permanent basis in August 2008 Messrs Reid Family Lawyers upon instruction said some of the factors supporting this conclusion were: "...

In mid 2008 your client moved out of the parties' bedroom into a room on her own.
In August 2008 your client vacated the family home, taking with her furniture and belongings.
The parties met to discuss the status of the relationship three weeks after separation in August 2008 and our client advised your client that, as a consequence of her actions, he considered the parties separated. This was reiterated at subsequent meetings." 65It is difficult to see why Mr Davies would even need to inform Ms Richardson three weeks after the separation that "as a consequence of her actions, he considered the parties separated", when on his version he really did that before she left. I do not think that either what Mr Davies said in his affidavit or the instructions he gave to Reid Family Lawyers is correct.

September - December 2008 66Little was done to bridge the gap between Ms Richardson and Mr Davies in the last four months of 2008. Despite Ms Richardson's determination to repair the relationship with Mr Davies many of the parties' communications in this period demonstrated their separateness rather than their unity. A few examples from the period will suffice. 67Ms Richardson's Invitations. Consistent with her view that she was working on the relationship after she left the Randwick home Ms Richardson asked Mr Davies to attend a 40 th birthday party with mutual friends and the other a lunch with mutual friends. Mr Davies says he declined both invitations saying to her words to the effect "No thank you. I don't want to play happy families, we are separated". I accept his evidence about this. Ms Richardson does not dispute that he said something like this to her in response. Her invitations are further indicators of the intention that she had at the time of the separation of re-establishing their relationship. I accept his evidence, which she does not really dispute, that she did not continue to invite him after these rebuffs. She recognised, in my view, that further invitations were likely to lead to further rebuffs. In my view she knew when she moved out that affecting the change in his behaviour that she wanted was going to be difficult. She was not wholly optimistic about the likely outcome. But in her own mind the only way she could sustain her personal resources whilst attempts at change were taking place was if she lived separately. It was a difficult decision but one which placed at risk the future of the relationship to a point I doubt that at that time she wholly appreciated. 68Another Relationship . Mr Davies was more disconnected from the relationship and less willing to change the way Ms Richardson wanted than she expected. About the time that the conversations had first occurred about Ms Richardson leaving the home he had met another woman, Jane Maher, in June 2008. Within a short time of Ms Richardson leaving Randwick, Mr Davies accelerated his interest in Ms Maher. Although it is not to be inferred that he then intended to form a permanent relationship with Ms Maher. But the speed with which this occurred shows how quickly the relationship fractured on his side after Ms Richardson left. I accept his and Ms Maher's evidence that she joined him in Melbourne for a restaurant dinner on his 50 th birthday, within a week of Ms Richardson's departure. The birthday was a family celebration in his hometown of Melbourne attended by his sisters, his mother and his close friends Norm and Gwen. He and Ms Maher stayed together at the hotel where he was attending management meetings for his employer, Worley Parsons. 69As might be expected Mr Davies did not communicate to Ms Richardson his new relationship with Ms Maher. He did not see any need to. It developed some way before Ms Richardson became aware of it. There was another 50 th birthday party held for Mr Davies on 15 November 2008 in Sydney. Ms Maher hosted this celebration which was attended by Mr Davies' family and his Sydney friends. The party featured Mr Davies' band "Jump on the Cat". Ms Maher organised this event. Her mobile phone number and email address were being used to RSVP. Ms Richardson did not attend the event and took no part in organising it. 70Issue was joined in the oral evidence as to whether Ms Richardson's and Mr Davies' mutual friends attended this party. He says they did. I do not accept Mr Davies' evidence about this. He named a handful of people who were said to have attended this party. His case was that he was publicly declaring through this party his relationship with Ms Maher to persons who knew Ms Richardson well. But the remarkable thing about his evidence is that in an invitation that clearly was for quite a large dance party he could only name fewer than half a dozen invited guests who had shared the acquaintance of himself and Ms Richardson in the 9 years of their relationship. Even then, most of those named who might also have known Ms Richardson, fell into the category of immediate work colleagues or very old friends who had known Mr Davies from his bachelor days, before he met Ms Richardson. None of them seemed to be the social acquaintances that he and Ms Richardson had developed in the course of their relationship. It is improbable that Ms Maher would have been very welcoming to many of Ms Richardson's and Mr Davies' mutual friends to such an event. 71Mr Davies' relationship with Ms Maher developed further before Christmas 2008. She was introduced to a widening circle of his business and social acquaintances. She stayed with him in late November 2008 in Brisbane, when he attended further management meetings in that city. Mr Davies and she went to dinner with his senior work colleagues in Brisbane as his partner. She met Mr Davies' old friend "Norm", who has extensive property business interests in Queensland. Mr Davies and Ms Maher stayed in Norm's Noosa apartment. Ms Maher also accompanied Mr Davies to his work Christmas party on 6 December 2008 held at Luna Park. She sat with him as his partner at his management table with senior business colleagues and their partners at that event. 72Some information about Ms Maher leaked back to Ms Richardson via the children. They mentioned to their mother the fact that on some of the access weekends with Mr Davies they had been with their father, Ms Maher and her children and no body else at various locations, including on an overnight yachting expedition. When this information found its way back to Ms Richardson she was suspicious that a relationship was developing. She had little idea of how far it had developed. I accept her evidence that her communications with her children did not alert her to the fact that Mr Davies' relationship with Ms Maher had become as close as the intimate relationship it had become. But she was certainly suspicious as she asked her children how physically close Mr Davies and Ms Maher had been and did not get a very troubling reply. Whilst this might be thought to be naivety on her part I think rather it reflects her misreading of the situation. The couple's email correspondence which it is not generally necessary to reproduce in these reasons, shows that despite the difficulties in the parties' relationship, Mr Davies had been demonstrably devoted to Ms Richardson and many of these expressions of affection continued throughout this period. She did not interpret the information she was receiving as indicating that his devotion had changed. It persisted in her mind and was the basis for her to continue to work on the relationship. But he had formed an intimate relationship with Ms Maher before the end of 2008. 73Access and Financial Arrangements . The parties had regular face-to-face contact in the period up to Christmas 2008 often to arrange or give access to the children. The parties agreed that they met together for coffee in an attempt to discuss issues about their property. But they did not discuss much more than this. 74Attempts at Reconciliation. If Ms Richardson left the Randwick home to work on a reconciliation what did she do about it? Mr Davies says that at the access visits there was no discussion about the future of their relationship or about reconciliation. He further says that on the occasions that they did meet for coffee to discuss property issues they did not take steps towards reconciliation or to work on the relationship. There was no evidence of the couple agreeing to further relationship counselling during this period. It was somewhat puzzling that Mr Davies' evidence to this effect was not clearly responded to in Ms Richardson's own affidavit in reply. It was suggested on Mr Davies' behalf that this was because there was no answer to it. Her expressed intention in leaving, which I accept was genuine, was to work on the relationship. Her own estimate of the time frame for this process was approximately 6 months. 75But there was little evidence of attempts to reconcile by the time this six month period was drawing to a close in late January - early February 2009. The Court raised this issue with her. Her account of what happened is important. Here is her evidence:- "Q. Did you and Mr Davies have any discussion about what might happen when the sixmonth anniversary came up not anniversary the sixmonth period that you had talked about came up? A. A couple of times I talked to Steve. I raised with Steve the possibility of moving back, and I started raising that in 2008, and he kind of discouraged me well, he discouraged me, suggesting things weren't settled enough in that period. So a few times in that intervening period I talked I raised with him the possibility of moving back. Q. I was going to come to that, but A. Sorry. Q. I mean, the last time that you'd talked about a period of time that you might be away from the home, you'd given an indication of up to six months. What did you think about JanuaryFebruary 2009? Given the indication that you'd given him, on your version, what did you think that, if anything, you needed to do about January or February 09? Do you understand what I'm asking? A. Yeah, yeah. I was obviously conscious that the months had gone by and that we weren't reaching resolution of the things that I was concerned about. So I was concerned I was conscious of the fact that it was getting to six months and things were still in limbo, yes. But I didn't say to Steve, "Oh, we're at the six months," I don't think I said that to him, "Therefore, we're coming back." I think I said to Patrick, you know, "We might need a little bit longer" as it was coming up to that period. Q. I assume you appreciated it couldn't go on forever; there had to be some kind of decision one way or the other? A. That's right, yep. Q. Is that right? A. Yes. Q. Did you have a plan of any sort and did you execute that plan about deciding about coming back? A. As I said, a couple of times I raised the possibility of coming back with Steve, and he wasn't enthusiastic about it. Q. What did you say to him and what did he say to you? A. I would say that we should think about coming back, and he would sort of suggest that things weren't settled enough to do that. And the time period surprised me in that it dragged on, because I had expected that I would see more responsiveness from him shorter than that. Q. Did you ever in effect confront him with a particular situation where you said, "Look, I want to come back next week" or "next month" or "within the next couple of weeks"? A. I talked to him about moving back before Christmas 2008 because I wanted us to all be together then. And he discouraged me, but we didn't have a I thought, well, it's not the right time to push it, so. I was still waiting for his sort of animosity towards me to die down. Q. Did you get any I'm sorry. A. So I was always careful in how I talked to him because he was angry. Q. Did you get any indication from him, when you raised the question of possibly coming back, that that was an acceptable course to him? A. That it was not or that it was? Q. That it was an acceptable course to him. A. He certainly didn't say, "No, that's absurd" or anything like that. So it wasn't it was more that "that's not a good idea at the moment" or something like that. Q. Did he offer you any encouragement? A. Not to move back at that stage. Q. When you became aware in December of 2008 that Mr Davies had been on the outing on the boat with Jane Maher A. Yeah. Q. And I think you indicated before that a degree of either concern or suspicion had arisen from that time. A. Yep. Q. Did it occur to you then that you needed to act fairly quickly to either reestablish living with him or something like that; otherwise some other relationship like that might develop? A. No, because I actually felt very strong in my confidence of Steve's feelings for me. Now, when he gave me that explanation about the boat thing, whilst it was still kind of in the back of my mind, he had dismissed it sufficiently that it wasn't an active concern. And I was very, very confident of Steve's feelings for me. And I thought that it was just a matter of him getting over being a bit angry at me, to realise his feelings for me, and then things would turn around. So I didn't think it was, you know, risky in that way. Q. Wasn't something you had to act on then. A. No." 76Although Ms Richardson was challenged about this evidence, I accept that she did raise with Mr Davies the possibility of her coming back by about Christmas 2008. But I also accept that he was not enthusiastic about that and he clearly communicated that lack of enthusiasm back to her. I accept the correctness of her evidence in answer to the Court's questions set out in the previous paragraph. But it means that she did raise with him on several occasions the possibility of her return, in accordance with her plan, but was rebuffed. In my view by about Christmas 2008 there was sufficient number of these rebuffs for her to begin to have insight that her plan to move out and restore the relationship was unlikely to work. By late January - early February 2009, when the six months was nearly up Ms Richardson's tentative plan to restore the relationship had failed: her efforts at reconciliation had been rebuffed; she was not persisting in them; and, Mr Davies seemed to becoming comfortable in his new relationship. In my view the relationship could reasonably be said to be an end by this time. 77Financial Dealings. There was detailed evidence from the parties about their financial arrangements during the period after their separation and up until Christmas 2008 and then leading into March 2009, accompanied by evidence of their general communications during this period. I do not think this material is decisive either way as to whether their relationship subsisted until 1 March 2009. Both Ms Richardson and Mr Davies were intelligent professional people. Although my findings in this judgment principally dwell upon their mistrust of one another, they both nevertheless maintained sufficient insight into their own situation and into their failing relationship to strive to communicate with one another in objective and diplomatic terms and to arrange their financial affairs in ways that were convenient notwithstanding their emotional differences. Neither of them, it seems to me, was prepared to misuse their communications about their joint financial arrangements or to engage in abusive communications against the other. Whilst that aspect of their handling of this situation is to be admired, it does mean that their email correspondence and their joint financial arrangements in this period must be analysed very cautiously. It would be easy to misinterpret their courteous and co-operative communications including about financial matters as indicating the continuation of their domestic relationship. Rather, in my view the material shows their residual affection; their regret at the failure of their relationship and their determination to behave with reasonable dignity. But the material does not show that their de facto relationship continued beyond January 2009.

January - February 2009 - Indicia of a De Facto Relationship 78The two months after the New Year involved very little change from the position that had largely crystallised by Christmas 2008. Access visits continued. Any ideas that Ms Richardson had about restoration of the relationship with Mr Davies were rebuffed. Their financial arrangements continued in the same way. They remained living apart. Mr Davies and Ms Maher continued to see one another. In my view by about late January - early February 2009 the indicia of a domestic de facto relationship between Mr Davies and Ms Richardson were absent. 79By late January - early February 2009 most of the statutory circumstances pointed to the relationship being at an end. A review of the Property (Relationships) Act , s 4(2) matters, as at this point, shows this. 80(a) The Duration of the Relationship. One of the reasons to infer that this domestic relationship did not suddenly end on 8 August 2008 is the fact that it had existed for 9 years and given the parties two children. The Court should be slow to infer the relationship of that duration might end in a single instant upon separation. But by early February 2009 the parties had also been apart in their 9 year relationship, for six months. To a large extent any inferences that the separation was to be explained by the parties' attempts to restore a long standing relationship were largely then neutralised by the length of the separation. 81(b) The Nature and Extent of Common Residence. Since August 2008 the parties have not co-habited. This matter is decisively against the existence of a de facto relationship at any time after August 2008. 82(c) Whether or Not a Sexual Relationship Exists. This matter is also decisively against the continuation of a de facto relationship between Mr Davies and Ms Richardson. Not only had their sexual relationship ended in December 2007 but Mr Davies had formed an intimate relationship with Ms Maher. 83(d) Degree of Financial Dependence or Interdependence. This matter is not strongly indicative either for or against a de facto relationship by February 2009. If anything the evidence tends to suggest that the parties were slowly unwinding their financial affairs and had taken steps in this direction. Although they did not decisively take these final steps until late March 2009. 84(e) The Ownership, Use and Acquisition of Property. In June 2008 this factor would tend to support the existence of a de facto relationship. But after six months of separation by early February 2009 it had become, either on its own or with other factors, a very weak indicator of a de facto relationship. 85(f) Degree of Mutual Commitment to a Shared Life. It is in relation to this factor that the failure of Ms Richardson's plans to restore the relationship by a period of trial separation are most important. Whilst the parties' mutual commitment to a shared life suffered a severe blow at the time of Ms Richardson's departure from the Randwick home to the Coogee residence, the objective evidence is not clear that at that time Mr Davies had rejected a commitment to a shared life with Ms Richardson. I do not regard his early take up of the relationship with Ms Maher to indicate that. Nor do I accept his declarations of finality in the relationship at the time of her departure. But the continuing failure in her attempts to restore relationships and her resignation to that failure by early February, together with his persistence in sharing his life with Ms Maher meant that a commitment to a shared life had entirely disappeared by early February 2009. 86(g) The Care and Support of Children. The parties agreed upon arrangements for the custody of and access to the children of the relationship to cover the period directly after the separation. Their mutual arrangements about the care and support of the children from 8 August 2008 onwards are entirely consistent with the arrangements of a separated couple who came together for purposes of access and occasions for the mutual support of the children. The care and support of the children after August 2008 was not an indicator in my view of the continuation of a de facto relationship. 87(h) Performance of Household Duties. As a by-product of the ending of their common residence, the factor of the performance of household duties, one for the other, had entirely disappeared after August 2008 and is a matter which detracts from the inference of a de facto relationship at any time after that date. 88(i) The Reputation and Public Aspects of the Relationship. By February 2009 Mr Davies had presented Ms Maher rather than Ms Richardson as his partner to his own parents and family, to his work colleagues including senior management, to an old friend and mentor, and to many invited guests at two important 50 th birthday celebrations. This public presentation of Ms Maher was in the face of attempts by Ms Richardson to involve him in other public occasions with her, which he had declined. By early 2009 this factor is decisively against the inference of a de facto relationship.

March 2009 89But Ms Richardson points to events in March 2009 as indicating the end of the relationship. The true explanation of these events is not in my view so much that they indicate the end of the relationship but rather that they are a belated recognition by both parties that the relationship had in fact ended at an earlier time. Because of the length of their relationship neither party was anxious to hurry it to its conclusion. This explains the delay before these final events occurred. But their occurrence in March 2009 should not be misinterpreted as then marking the end of the relationship. 90Ms Richardson points to features of the March period that represent changes in the relationship between herself and Mr Davies, she says are markers of its conclusion. She even advances a date of 26 March 2009 and a particular conversation as the point of conclusion. 91In my view Ms Richardson's contention that the relationship ended on a particular date, 26 March 2009 is as improbable as Mr Davies' contention that it ended in August 2008. The relationship had in my view ceased to qualify as a de facto relationship by late January - early February 2009. The existing relationship can also be said to have "broken down" by that date. 92The parties wrote to one another on 30 March 2009. Ms Richardson relies on this exchange to say that the end of the relationship had only been quite recent. Mr Davies replied to Ms Richardson's email of this date by breaking up her email and inserting his own replies to each of her statements. His words are in italics below. "Hi Rebecca, I'm responding because I think that it is important that our communication improves going forward and that we give each other the courtesy of a prompt response to important issues between us. I would also like to continue to act with integrity, honesty and openness in our dealings. I've tried to respond to each point below so as you can gain a precise and accurate understanding of my perspective. I hope this helps (it may appear, but is not meant to be, a clinical dissection of your message. I just wanted to make sure that I responded to each of the points you raised). I'll be tied up most of this week in Melbourne so maybe we can communicate further next week. Regards Steve " ... "Steve you said on Thursday night that you want to end things and that you want to 'move on'. You said that you see no reason to change or to put any effort into saving things. Rebecca, this is fairly accurate, in that I said you would need to accept me for who I am if we were to have any future. I think that is very sad. Me too I guess it's also very telling. You have put in all that you think is reasonable, but what you were prepared to give was not all that was needed to overcome the damage. I know you think I am too demanding. But even forgetting about overcoming my hurt, as Paul the counsellor said to me, what I have been looking for is just what makes a good relationship. Rebecca, this is the old chestnut and I feel that we remain apart on what constitutes support, compromise and 'putting first', from both sides It seems you have only sought positive reinforcement for how you are and have only been open to negative views about me (either those of friends or counsellors). I too have had plenty of people, including some who know you well, express (unsolicitored) negative views to me about you and how you treated me and put me down. If you felt poorly treated and put down when we were together, in balance with everything else, then we remain a long way from resolution. It felt the same. I haven't focused on these. Instead I have tried to understand about how things have been for you. I have wanted so much to share this with you. To share the appreciation I have gained for your perspective and offer things I have learnt, but you are so harsh on me. There is a lot I value and that I believe, if we both want to, we could build on and make great and fun, sharing and loving. Rebecca, as I said on Thursday, think now is the time to openly share anything you have wanted to, and not wait until my feelings of resentment change; at the moment I feel what I feel. I haven't yet understood anything from you in terms of 'appreciation gained for your perspective and offer things I have learnt'. I haven't seen any reaching out (beyond a 'let's work on things' statement) or in particular the appreciation of any of my views or issues by you that you say you have gained...I'd genuinely like to know what these are, so please share them Maybe one day you will realise that you have lost the person that you really love (agree) ; that you weren't there when she needed you (I have acknowledged, explained why and apologised throughout) , thought she was asking too much (agree) , did not see that she was reacting as she was because of her hurt (of course I did, but I felt that you showed on Thursday that you are still hurting and haven't been able to let go and move on...all the old stuff appears to be still there and came up again...cardigans, sound systems...talk about needing to let go of resentment!) and then, when she wanted to reach out for you, you weren't prepared to make any effort. Again, I haven't yet seen any reaching, any acceptance of any of my views, or any softening of yours. Or maybe.... Rebecca, I don't understand these ambiguous statements that you put in your messages...we would both benefit from clear, concise communication going forward Love Rebecca Ps I think you can see how difficult this is for the kids. I think it would make a big difference if you would let them come back here for Sunday night when you have them Rebecca, I don't feel that this is an issue at all...they are very happy at my place....they are just play up to you when they are on the phone/go back home...maybe better if you don't ring when I have them if this upsets you....it would certainly stop them playing-up " 93But all this email indicates in my view is that the parties had recognised what had already occurred by late January, early February 2009, that the relationship was at an end. A different conclusion is not to be inferred from the fact that they then commenced a more active unwinding of their financial affairs. 94The timing of Mr Davies' communication of the relationship break up to Ms Richardson's parents is an issue to which she points to claim that the relationship broke up after the 31 March 2009. There is uncontested evidence from Ms Richardson's mother, Mrs Grace Richardson to the effect that not long before their farming property, Lord Ben Farm was being auctioned on 23 April 2009 and sometime in early April Mr Davies telephoned Mrs Richardson and had a conversation to the following effect:- "Mr Davies: 'The relationship with Rebecca is finished'. Mrs Richardson: 'I am distressed and concerned to hear that. Why?' Mr Davies: 'I am not going to change and I don't think Rebecca will either'." 95I accept Mrs Richardson's evidence that she expressed her disappointment with Mr Davies at this news. And I also accept her evidence that Mr Davies made it clear that he was not prepared to reconsider his decision and said words to the effect, "I am not going to change my mind". 96Mrs Richardson was not cross-examined. I wholly accept her account. Her evidence shows a degree of stubbornness in Mr Davies which I saw elsewhere in his evidence. But her evidence also provides the key to understanding the timing of his communication. She said in her affidavit:- "I gained the impression from his subsequent remarks that he did not want to sever his connection with us and would like to visit with their two children from time to time. This has not happened though we would have been happy for him to do so." 97It was quite obvious to the Court when Mr Davies was cross-examined about Ms Richardson's parents that he still had much respect and affection for them both, despite the differences that he had with their daughter. This is the key to the timing of his revelation to Mrs Richardson. Mr Davies was reluctant to tell Mrs Richardson that his relationship with her daughter had ended. Indeed so troubling was it for him to face this conversation that he delayed it between some time late in 2008 until he eventually held the conversation only in early April 2009.

Conclusions and Orders 98In the result therefore I have found that Mr Davies and Ms Richardson ceased to have a de facto relationship within Property (Relationships) Act , s 4 by late January - early February 2009 and the their de facto relationship broke down before 1 March 2009. Therefore Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) does not apply to confer jurisdiction in relation to the adjustment of the parties' property interests on the Family Court of Australia under the Family Law Act . The provisions of the Property (Relationships) Act continue to apply to the parties' property dispute. That Act confers jurisdiction on this Court to adjudicate upon their dispute. 99The proceedings will therefore continue in this Court. Ordinarily the costs of this hearing would follow the event. That is the order that I will make unless some special order for costs is required. The proceedings should be referred to the Registrar's list for further directions. The parties may wish to consider mediation of the balance of the issues joined between them. If so I am prepared to make orders for mediation under the Civil Procedure Act 2005. 100I direct the parties within seven days to bring in short minutes of order to give effect to these reasons. [The parties brought in short minutes of order on 29 July 2011 when, after argument about costs the following orders were made]. 101I make the following declarations and orders:- 1Amend the order made pursuant to UCPR 28.2 on 19 October 2010 for the separate determination of a question in these proceedings by changing the question in the Schedule to that order to read "Did the plaintiff's and the defendant's de facto relationship break down before the commencement of the Family Law Amendment (De facto Financial Matters and Other Measures) Act 2008 on 1 March 2009." 2A Declaration that the Plaintiff and the Defendant ceased to have a de-facto relationship within the Property (Relationships) Act 1982 Section 4 by late January/early February 2009. 3A Declaration that the parties' de- facto relationship broke down before 1 March 2009. 4A Declaration that the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) does not apply to confer jurisdiction in these proceedings. 5A Declaration that the provisions of the Property (Relationships) Act 1982 applies to the parties' property dispute in these proceedings. 6The parties attend mediation with a Registrar of the Court on a date to be fixed by the Court in consultation with the parties. 7Reserve costs of this separate question. 8List the matter before the Equity Registrar on Friday, 12 August 2011 at 9am. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 July 2011

Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008(Cth)

Therefore Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008(Cth)

(1998) 23 Fam LR 716

(1989) 12 Fam LR 725

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