Ganelis & Xenides [2025] FedCFamC1F 758 (28 October 2025)

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

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

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ganelis & Xenides has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. This is the consideration of whether there should be a declaration under s 90RD of the Family Law Act 1975 (Cth) ("the Act") that the parties were in a de facto relationship. Whilst the respondent accepts that there was a relationship between them for over 20 years, he contends it fell short of being a de facto relationship and that the applicant was simply a girlfriend.

1. The parties met in 2002. At that time the applicant was 35 years old and the respondent 50 years. The respondent had two children from an earlier relationship. He was in practice as a legal professional.
2. The respondent had a house at B Street, Suburb C ("the [Suburb C] property").
3. One of the factual contests to be decided is the amount of time the applicant spent at the Suburb C property. She contended that it was one to three nights per week, including most of the weekend and sometimes weeknights. The respondent's position was that it was just one night a week and little other time, such as days during the weekend.
4. From 2002 to mid-2010 the applicant lived at her mother's property when not spending time at the Suburb C property. In mid-2010 she started residing at her property in Suburb D which she had purchased in late-2002 but had previously rented out. When her mother's health deteriorated again in 2019, the applicant sold the Suburb D property and resumed staying at her mother's apartment when not at the Suburb C property.
5. In 2003 the respondent's two sons Mr E and Mr F, then aged 13 and 8 respectively, started living with the respondent at the Suburb C property, spending each alternate weekend with their mother.
6. They stayed until 2012. Mr E, then 22 years old, did not return, but Mr F, then 17 years old, returned to live at the Suburb C property intermittently.
7. The respondent's health declined in 2012 and in the end of that year he stopped attending his office in the Sydney CBD. He retired in 2014 and received a total and permanent disability insurance payment.
8. In mid-2019 the respondent had a fall at the Suburb C property. The applicant called the ambulance.
9. He had another fall in early 2022, causing a subdural haematoma and a fracture of a temporal bone. The respondent was taken to hospital and a craniotomy was performed.
10. The respondent was discharged from hospital and admitted to H Aged Care Service a few months later.
11. On 4 April 2022 the respondent executed an Appointment of Enduring Guardian and an Enduring Power of Attorney in favour of the applicant.
12. A document described as a Settlement Deed was entered into by the parties on 1 August 2023. It provided the following:
    1. [The respondent] will pay to [the applicant] the sum of One Million Dollars ($1,000,000.00) (the Settlement Sum).
    2. The Settlement Sum is to be paid by way of two instalments:

3.1 The sum of Four Hundred Thousand Dollars ($400,000.00) to be paid within 28 days of the date of this deed; and

3.2 The sum of Six Hundred Thousand Dollars ($600,000.00) to be paid on the sale of the [Suburb C] Property by [Mr Xenids] or [Mr Xenids]'s estate.

(Exhibit 4 - Annexure "II" to the applicant's affidavit filed 4 April 2025)

1. The respondent paid the applicant $400,000 on 22 September 2023. He sought the return of that money.
2. So much is agreed by the parties. It is now necessary to dive further into the detail of the evidence which will be done through the prism of s 4AA of the Act which relevantly provides:

4AA De facto relationships

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.

1. The parties are agreed that the relationship, of whatever kind it was, lasted for 20 years. That is a long time and suggests a long-term commitment.

1. As mentioned, the parties dispute the amount of time the applicant spent at the Suburb C property throughout their relationship.
2. Recital I to the Settlement Deed entered into by the parties on 1 August 2023 records that the parties "have lived together in the [Suburb C] property on a part-time basis since the commencement of their relationship" (Exhibit 4 - Annexure "II" to the applicant's affidavit filed 4 April 2025).
3. The appellant's evidence is that over the years she spent between one and three days a week at the Suburb C property, often staying over the weekend.
4. The respondent was adamant that it was only one night a week and little or no time at all during the day. That is inconsistent with the texts he sent to the applicant and the texts he sent to his friends which are both discussed later in these reasons. These suggest, at least, the applicant was at the property on some weeknights (as he was inviting her over for sex on weekdays) and all weekend (as they had friends over for lunch).
5. I later find, inconsistently with the respondent's contentions, that the applicant did shopping for both of them, especially for food for the weekends, and more generally as the respondent's health deteriorated.
6. This is sufficient to enable me to prefer the applicant's evidence on this issue. However, for reasons given later, the respondent's evidence is also not generally persuasive, inconsistent with documents written by him and others, at times fanciful and most likely, in some cases, an entirely recent invention. I have no hesitation whatsoever in preferring the applicant's evidence where it differs from the respondent's.
7. The applicant spent one to three days a week at the Suburb C property including full weekends and some midweek time. She kept some clothes there as well as personal items, which seems likely in the circumstances. The evidence to the contrary was not persuasive.
8. The respondent's children gave evidence to the effect that the applicant was not greatly involved in their lives. That is hardly surprising given the limited time she was there. Mr E's evidence, as expanded in cross-examination, was not inconsistent with the applicant's case. Whilst Mr F's evidence may accurately record his impression, the weight of the evidence is in favour of the applicant.

1. There was a sexual relationship between the parties from 2002 to at least 2018, which was admitted by the respondent in his points of defence.
2. The applicant annexed a large number of emails from the respondent to her from 2015 to 2020 to her trial affidavit. To say they were vividly sexual, albeit with a limited but repetitive vocabulary, would be an understatement and can only be consistent with a continuing sexual relationship. A number sought sexual engagement that evening even though they were sent on weekdays.
3. The respondent did not refer to them at all in his trial affidavit but said in it that there was a sexual relationship of a variable nature from 2002 to 2021.
4. Despite this admission, the respondent sought to retreat from it in his cross-examination. In particular, he denied that he had sent the emails or used language of the kind present throughout them. It is clear from their face that they were sent from the respondent's email address to the applicant's. Faced with this the respondent maintained that he had not sent them and that the applicant must have sent them to herself. The respondent suggested that the applicant may have broken into his house to send them.
5. The emails were not just sent on weekends. As the respondent was home most of the time, it seems unlikely that the applicant would be able to enter the property and access the respondent's computer without being noticed. That also suggests that, at least sometimes, there were visits other than just weekends.
6. Quite why the applicant would break into the respondent house to use his computer to send lurid and profane emails to herself is not apparent. It would take particular prescience to think in 2015 and thereafter that, at some time in the future, evidence of a sexual relationship would be relevant and in dispute.
7. This explanation was not given in the respondent's affidavit when it could have been. It was not put to the applicant by the respondent's counsel in cross-examination. It has the hallmarks of having been only recently conceived.
8. I regard this evidence as fanciful. It will be relevant when assessing other evidence in issue.

1. For the most part, the parties kept their finances separate.
2. In mid-2004 the parties each acquired a property in Queensland, being two townhouses next to each other. They independently obtained the purchase funds and the settlements took place on different dates. They were sold at quite different times and each kept the proceeds of his or her property.
3. There was no financial interdependence in these purchases but the acquisition of the adjacent townhouses at similar times is most unlikely to have been a coincidence. It must have been an agreed decision.
4. On 17 May 2006, the applicant transferred $20,000 to the respondent to cover business expenses.
5. In 2013 or 2014, the respondent sold his business to the applicant who is a legal professional. She had been working for the respondent since 2004 as an assistant and was familiar with the business. The cost was originally $100,000 but later reduced to $95,000 which the applicant repaid in regular instalments. She became a licensed legal professional in April 2013. The name of the practice was changed from G Company to J Company, but retained the name of the respondent.
6. There is no evidence as to the value of the practice at that time.
7. That makes it difficult to determine the commerciality of the sale. That being so, the sale of the practice and its terms do not assist in determining whether or not a de facto relationship occurred. It is not at all unusual for an employee to acquire a business when the owner of it retires.
8. The applicant asserted that the transaction was not a commercial one because neither party obtained legal or accounting advice and because the purchase price was paid in instalments over five years. That, again, is something that legal professionals could do.
9. The respondent made a number of wills which provided for the applicant.
10. A will dated 19 June 2003 appointed the applicant as his executrix and guardian of his children (Exhibit 4 - Annexure "C" to the applicant's affidavit filed 4 April 2025). The will described her as a friend. These, and especially the appointment as guardian , would be very odd things to do if the applicant was merely a casual, but regular, sexual contact. It suggests a much deeper connection.
11. That will made no financial provision for the applicant.
12. The next will was made on 23 February 2010 (Exhibit 4 - Annexure "C" to the applicant's affidavit filed 4 April 2025). Again, the applicant is the executrix and is appointed as guardian of the children. The applicant was to receive the respondent's legal practice with the balance of the estate being split between the children.
13. A will made on 5 November 2022 had the applicant sharing equally in the entire estate with the two children (Exhibit 4 - Annexure "EE" to the applicant's affidavit filed 4 April 2025).
14. On 21 December 2023, the will was changed so that the applicant received a bequest of $600,000 only, making reference to a Deed of Settlement which I shall discuss next (Exhibit 4 - Annexure "KK" to the applicant's affidavit filed 4 April 2025). The clause also recorded that the applicant had already been paid $400,000.
15. The wills show a consistent pattern of making substantial provision for the applicant consistent with some considerable degree of commitment to her and recognition of an obligation to provide for her.

1. On 1 August 2023 the parties entered into a document described as a Deed of Settlement (Exhibit 4 - Annexure "II" to the applicant's affidavit filed 4 April 2025). I shall return to its terms in some detail shortly, but in general, it provided for the respondent to pay the applicant $1 million with $400,000 to be paid within 28 days and the balance when the Suburb C property was sold, either by the respondent or by his estate. The parties released each other from "all actions, proceedings, claims, demands, costs and expenses whatsoever and however arising" (Clause 8).
2. The respondent paid $400,000 to the applicant as required.
3. The respondent's position is that his consent to the deed was obtained by the unconscionable conduct and undue influence of the applicant.
4. In order to deal with the parties' submissions about the deed it is necessary to place them in a somewhat complicated legal framework.
5. The respondent's evidence is that whilst he was in the health facility, H Aged Care Service, after his fall and operation in 2022, the applicant first raised the issue of a settlement payment with him. He cannot recall the details but records that she said "My lawyer is a family law specialist and is to be feared" (respondent's affidavit filed 7 May 2025, paragraph 182).
6. The affidavit does not record his response, but as a legal professional he must have known then that the only basis for a property settlement was as a de facto spouse under the Act. She was not, for example, making an equitable claim against the Suburb C property which would have involved different language.
7. This was confirmed in the following conversation after he was presented with a draft set of de facto relationship orders and a consent application in the Federal Circuit and Family Court of Australia (Division 2) shortly after returning home from H Aged Care Service in late 2022:
   1. ... I recall she said to me words to the effect:

"My Solicitor, has told me that we would need to do a property settlement. You will be required to pay me a settlement."

1. I recall [the applicant] also informed me, in words to the effect:

"My Solicitor told me you would be required to pay me $1,100,000, a third of the value of the house."

185. [The applicant] and I argued about it and I told her in words to the effect:

"We were never in a de facto relationship!"

1. At the time the respondent was attempting to refinance his property and was doing so with the assistance of the applicant. It was his case that in July 2023 she told him that she would not assist with the refinance if he did not agree to give her a settlement. On 1 August 2023 he says he was presented with the deed and a neighbour came over to witness his signature on it.
2. His evidence was that it was not until the applicant lodged a caveat on the Suburb C property that he became aware he had agreed to pay the applicant a further $600,000.
3. The applicant's version, of course, is different.
4. She said that the parties explored options to give her greater financial certainty than an expectation under a will such as title on the Suburb C property and a dual occupancy subdivision (which was explored with real estate agents between February and July 2023).
5. The respondent already had a reverse mortgage over the property obtained in late October 2023 to provide funds for medical expenses (Exhibit 7).
6. The applicant said that at the end of July 2023, the respondent told her that he wanted to increase the reverse mortgage to obtain funds to pay to one of his sons and to pay a settlement sum. He dictated the terms of the proposed deed to her over the phone which she then prepared.
7. The applicant emailed the deed to the respondent at 1.57 pm on 31 July 2023 (Exhibit 4 - Annexure "HH" to the applicant's affidavit filed 4 April 2025). The text included "Please also submit the Deed to [Mr K] and [Ms L] for their review". That is a reference to Ms L, a lawyer and friend of the respondent's and Mr K, her employer.
8. The applicant recalls the respondent then rang and said that Mr K had requested an amendment to the deed, which was made.
9. The applicant then sent the amended deed to the respondent with a carbon copy to Ms L at M Lawyers.
10. She said the respondent asked her to come to the Suburb C property at 11.00 am the following day to sign the deed. This was later amended to 10.55 am so the applicant could also sign a letter.
11. A letter was clearly signed and dated 1 August 2023. It is handwritten and says:

Dear [Mr Xenids],

I am aware of the contents of the Deed of Settlement which we will execute today, 1 August 2023. I approve your instructions that I will pay the sum of $175,000 to [Mr F] and $25,000 to you. These sums to you and [Mr F] are in addition to the sums due to me under the Deed of Settlement.

(Exhibit 3)

1. A reverse mortgage was obtained from N Pty Ltd. A document headed "Priority Deed" was executed by that company and the parties concerning the Suburb C property (Exhibit 12 - Exhibit "[G-21]" to the applicant's affidavit filed 4 April 2025). The signature of the respondent on the copy signed by him was witnessed by Ms L from M Lawyers.
2. The interest in the property by N Pty Ltd was described as a first registered mortgage.
3. The interest of the applicant was defined as:

Equitable interest pursuant to a Deed of Settlement...between the Grantor [the respondent] and [the applicant] dated 1 August 2023 in respect of the property of which the Grantor is the sole registered proprietor of [the Suburb C property].

(Exhibit 12 - Exhibit "[G-21]" to the applicant's affidavit filed 4 April 2025)

1. The interest was given a value of $600,000.
2. The priority of N Pty Ltd was expressed to be $960,000 plus further advances, interest and so on.
3. On 28 July 2023 a mortgage broker wrote to the respondent saying the applicant had spoken to him. He asked for confirmation that:
   • You are no longer pursuing the sub division idea
   • You are seeking up to $1 million cash release from the property as part of the separation agreement, to be paid to [the applicant]
   • You consent for me to discuss this matter with [the applicant]

1 I will not sark sub-dissiom.

1. I will sign asephrayion a separation with [the applicant] with majority of the $1m.

.3 You van discuss the matter with [the applicant].

(As per the original)

(Exhibit 13, p.392)

1. On 5 September 2023 M Lawyers wrote to N Pty Ltd enclosing signed copies of the Loan Contract, Mortgage, Authority Direction and Warranty, and the Priority Deed (Exhibit 13, p.407).
2. On 2 September 2023 the respondent sent an email to the broker thanking him for an amendment to the Loan Agreement so as to permit reliance on a certified copy of the Deed of Settlement. He also sought an amendment to the Priority Deed so that it showed him holding all the legal and equitable interest in the property "pursuant to the Deed of Settlement" (Exhibit 13, p.414).
3. He withdrew the request the following day (Exhibit 13, p.417).
4. On 31 July 2023 the respondent sent a copy of the proposed deed to Ms L at M Lawyers saying:

Can you and [Mr K] say iy ok to sign it a new mortgagee send funds.

It Is to be seen Centrelink. It's my fees.

(As per the original)

(Exhibit 10, p.374)

1. A handwritten note on the email from the respondent sending the deed said:

This Deed if for centrelink so [Mr Xenides] won't lose his pension otherwise its considered a gift

(As per the original)

(Exhibit 10, p.374)

1. In what appears to be different pen, the words "aged or (disability pension)" have been added.
2. It was not suggested to the applicant in cross-examination that the deed was some sort of device or tool to avoid the consequences of what was, in reality, a gift. No such submission was made.
3. After settlement of the mortgage the applicant received $400,000. The sum of $175,000 arrived in the V Company trust account which the applicant paid to Mr F.
4. These documents persuasively show that the respondent had a significant, and more likely than not, controlling role in the preparation of the transaction in general and the deed in particular.
5. The answers given by the respondent when cross-examined about this issue were difficult to follow. He said many times that he did not read the deed which is entirely inconsistent with the above documents. He also said often that he did not sign it, which is blatantly incorrect.
6. Recital L to the deed records that both parties had been independently advised of their rights under the Act (Exhibit 4 - Annexure "II" to the applicant's affidavit filed 4 April 2025). Of this, the respondent said:

That's wrong. I had no independent advice. That's why I wouldn't sign it.

(Transcript 13 June 2025, p.299 line 45)

1. This is contrary to his evidence given just a few minutes earlier when he was asked about the email referred to above at [74]. It appeared to be sent by the respondent. He denied that he did saying that there were three mistakes in it. These were the name of the recipient, that he wanted legal advice on the deed and that "counsel has said to me in the last clause 4.3, the deed was wrong, but this document says 4.7" (Transcript 13 June 2025, p.298 lines 4-9).
2. The respondent did not explain how this email came to be sent from his address but not by him.
3. The weight of the documents is overwhelming. I am completely unable to accept the respondent's evidence on this issue having regard to them alone. However, the very unimpressive evidence (evasive, deflecting, not answering the question, contradictory) which at times sought to deny the undeniable (for example, that he signed the deed) confirms that view.
4. I am completely unpersuaded that the respondent has any basis for asserting that his agreement to the deed was obtained by any unconscionable conduct or undue influence by the applicant. Indeed, having regard to the documents and the evidence of the applicant, which I accept, the respondent was the drafter of the deed.
5. I turn now to the terms of the deed. They must be seen in the light of the applicant pressing for a settlement of her rights under the Act. Indeed, she went so far as to present the respondent with draft consent orders and an application for consent orders in the Federal Circuit and Family Court of Australia (Division 2).
6. The following recitals are relevant, in addition to the one already noted:
   1. [The respondent] and [the applicant] commenced a relationship in September 2002 and ended that relationship on 11 June 2022.

...

1. [The respondent] and [the applicant] have lived together in the [Suburb C] property on a part-time basis since the commencement of the relationship. The parties have lived separately and apart since December 2021 and in their opinion there is no reasonable likelihood of the relationship being resumed.

(Exhibit 4 - Annexure "II" to the applicant's affidavit filed 4 April 2025)

1. These are consistent with the applicant's contentions and inconsistent with the respondent's.

1. The parties took a number of brief holidays together including a cruise, Town O, P Island, a conference in Town Q, Suburb R, Country S and City T.
2. In mid-2019 the respondent had a fall at the Suburb C property resulting in the applicant calling an ambulance.
3. He had a further fall in early 2022 resulting in a sub-dural haemorrhage requiring a craniotomy. He was discharged from hospital a few months later in 2022 and went to H Aged Care Service. In late 2022 the respondent "escaped", in his words. In late 2022 a doctor at U Hospital found that the respondent had full capacity to determine whether he should remain in care or not. He returned to the Suburb C property.
4. In early 2022 the applicant established a group chat with the respondent's two sons. She and the respondent were the primary contact points for the hospital and doctors and not the children. She kept them fully informed of their father's progress and condition.
5. It is easy to draw from these interactions that the applicant was well involved in the respondent's treatment and care without any opposition from the respondent.
6. The applicant assisted the respondent after he returned to the Suburb C property, notwithstanding the separation.
7. The applicant said, and the respondent denied, that she regularly bought items, especially food and groceries, for use in the Suburb C property which became more frequent as the respondent's health declined. For the reasons indicated earlier, I am very wary of the respondent's evidence generally and not inclined to accept it where it is in issue. The schedules of items bought in and around Suburb C are persuasive in the applicant's favour (Exhibit 2 and Exhibit 5). While some of the items might have been for her own use, they support her contentions.
8. The schedule of phone records indicate very frequent contact between the parties consistent with commitment to a shared life as opposed to merely being sexual contacts, albeit regular ones (Exhibit 5).

Reputation and public aspects of the relationship

1. The applicant tendered a significant number of emails to friends, inviting them to lunch or dinner with the respondent and the applicant. A number of them are signed off with both their names, as are some letters of congratulations. The applicant is often referred to in affectionate terms such as "[Ms Ganelis]".
2. These completely undermine the respondent's evidence that the applicant stayed briefly one night per week only and that she had no contact with friends. When faced with the emails, the respondent denied having sent them. When pressed with the fact they appear to have been sent from his private email address he continued the denial. He asserted, as he had done in relation to other emails apparently sent by him, that they must have been sent by the applicant. Since the respondent was at home most of the day it is hard to fathom how the applicant could manage to do so without being noticed or why she would do so.
3. The respondent did not suggest that these lunches and dinners did not occur or that he found himself unexpectedly entertaining friends.
4. These answers confirm my conclusion as to the reliability of the respondent's evidence. They are fanciful and can only be seen as an attempt to explain away matters that are contrary to his position.
5. Though not of great weight, the evidence of the respondent's brother supports the applicant's case.
6. It follows that I generally prefer the applicant's evidence. It is generally more consistent with incontestable facts and the documents in evidence. The parties presented themselves to friends and family as a partnership.

1. It follows that the parties were in a relationship for 20 years, a long time, spending one to three nights per week together at the Suburb C property, mainly at weekends but not limited to that. That, of course, fluctuated over the years.
2. That alone is strongly supportive of a committed relationship.
3. There was a continuing sexual relationship. There was some intermingling of funds, limited to the loans and advances they made to each other at different times, sometimes on a commercial basis, sometimes not.
4. The applicant helped look after the respondent, particularly as his health deteriorated and the purchase of food and groceries for use at the Suburb C property continued in an increased manner. The applicant was the point of contact for the respondent after his significant fall and it was her doing so and not the respondent's children.
5. The respondent appointed the applicant as guardian of his children under several wills and gave her an Enduring Guardianship in later years. That is not likely to be done in favour of a casual sexual partner.
6. They went on a number of holidays together. These were short and infrequent but that was, at least, the respondent's lifestyle. His children gave evidence that they rarely celebrated Christmas.
7. There was a public element to the relationship, as noted.
8. The various wills made by the respondent making significant bequests to the applicant suggest recognition of a moral obligation to the applicant arising out of the relationship.
9. The Deed of Settlement is a telling admission that the parties were in a committed relationship, as defined by the Act, that was worthy of the payment of a significant portion of the respondent's assets. I gained the impression that he did not give away or spend his money freely.
10. These matters combine to persuade me, comfortably, that the parties were in a relationship as a couple living together on a genuine domestic basis from 2002 to 15 June 2022. There will be a declaration accordingly.

I certify that the preceding one hundred and fourteen (114) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge.