M v T[2006] QDC 300

DISTRICT COURT OF QUEENSLAND

1. [1]
   The applicant seeks the following orders:

1. (1)
   An order pursuant to s 286 of the Property Law Act 1974 adjusting the interests of the applicant and the respondent in property held by them as is just and equitable;
2. (2)
   An order that the respondent hold any interest in any property of which she is a registered owner on constructive trust for the applicant, in the proportions of 50 per cent to the applicant and 50 per cent to the respondent.

2. [2]
   The applicant, whose date of birth is 9 July 1959, claims to have commenced living together in a de facto relationship with the respondent, whose date of birth is 10 March 1963, within the meaning of s 261 of the Property Law Act 1974 in December 2000.  The respondent denies that the parties were at any time in a de facto relationship.

The Evidence of the Applicant

3. [3]
   In her affidavit filed on 21 April 2005, the applicant states that the parties had been friends for some 10 years prior to commencing cohabitation in December 2000.  From that date the parties lived together firstly at a house rented by the applicant at 3 Lotus Key, Broadbeach Waters and subsequently at a property situated at 15 Pacific Boulevard, Broadbeach Waters.  The applicant claims that the last-mentioned property was purchased by herself and the respondent.  The parties separated on October 2004 when the applicant left the house at Pacific Boulevard.

4. [4]
   The applicant estimates that at the commencement of the relationship the parties had the following property, financial resources and liabilities:

Applicant: (i) Cash at bank  $  2,000

(ii) Motor vehicle  $  8,000

3. (iii)
   Furniture & furnishings  $  5,000
4. (iv)
   Credit card debt owing  $  1,000

Respondent: (i) Cash at bank  $20,000

(ii) Motor vehicle  $35,000

(iii) Furniture & furnishings $  8,000

(iv)  Mortgage in Melbourne with

Westpac Bank owing            $100,000

5. [5]
   The applicant estimated the net assets of the relationship as at the date of separation at $283,000.  During the trial an agreed schedule of assets and liabilities was tendered (Exhibit 9) showing the net assets as $146,558.68. 

6. [6]
   The applicant states that when she met the respondent she (the applicant) was unemployed and was receiving welfare payments.  She was renting a house in Broadbeach Waters.  She owned a Ford station wagon and the furniture in her rented house.  In December 2000 the respondent moved in to the rented house and paid half the rent and half of all living expenses.  In July 2001 the applicant states that she discussed with the respondent that the parties would purchase a house together and claims that it was agreed that the respondent would work and that the applicant would perform all the domestic duties and undertake renovations on the property to be purchased in the hope that the refurbished home could be sold and the parties realise a profit.

7. [7]
   In August 2001 the applicant states that the parties located a property and that the applicant undertook all negotiations for the purchase of the property situated at    15 Pacific Boulevard for the sum of $300,000.  The respondent obtained a loan through Aussie Home Loans to enable the purchase of the property.  According to the applicant the respondent told her that her name could not be included on the property title because she was unemployed.  In September 2001 the parties moved into the property which the applicant describes as being in average condition and needing renovation.  The applicant states that she contributed $100 per week towards the mortgage and fully furnished the house, whilst the respondent paid the remainder of the mortgage repayments. 

8. [8]
   Living expenses were shared by the parties and the applicant states that she contributed half of the moneys she received from her Centrelink benefits and also undertook renovations to the property on a full-time basis.  She claims that she ripped up all the carpet and put floor boards down, painted the interior of the house, gutted two bathrooms, the powder room and the laundry and arranged for the rooms to be tiled before personally painting those rooms.  She also claims to have ripped out the kitchen and arranged for cabinetmakers to come in and fill in the kitchen.  All appliances and fittings for the house were sourced by the applicant.  The applicant says that she arranged for a friend to repair and respray the roof and had the exterior of the house rendered and painted.  The applicant claims that she personally chose all the colours and finishes for the renovations.  She states that she arranged for a swimming pool to be constructed in the back yard and that she then physically landscaped the property.  She claims to have arranged for a jetty and a pergola to be built outside the house and that she was responsible for the design and choice of all materials to be used in the construction of the jetty and pergola.  The applicant says that she extended the dining room and decorated the interior herself.  She claims that the renovations to the property were attended to by her on a full-time basis for which she was not remunerated, on the understanding that she would receive half of the proceeds of the sale of the property.

9. [9]
   During this time the applicant states that the respondent worked for Austar as a customer accounts manager.

10. [10]
    The applicant states that at the commencement of the relationship the respondent owned a Land Rover Discovery which was subsequently traded in for a Hyundai four-wheel drive vehicle.  In 2002 the respondent purchased a 1977 VW Kombi van for $4,500 for the applicant to drive and the applicant gave the respondent her 1994 Ford station wagon which she states was valued at $8,000. 

11. [11]
    In early 2003 the parties discussed having a baby.  The applicant states that the respondent was very willing to participate in the event and in order to show her support, the respondent paid for the applicant to undergo an IVF procedure.  The applicant became pregnant on three separate occasions and on each of these occasions she miscarried.  The second miscarriage required hospital treatment for haemorrhaging.  The applicant states that following the second miscarriage she became severely depressed and that following the third miscarriage she could no longer emotionally cope with further participation in the IVF program.  The applicant claims that the respondent was very eager for the applicant to have a baby and purchased clothes for the expected child.  The applicant states that the respondent was disappointed when she was unable to successfully complete a pregnancy.

12. [12]
    The applicant claims that once the renovations of the property had been completed and when she realised that she was not able to have a child she felt that there was no other alternative than to leave the relationship as her role there was obsolete.  She claims that the respondent no longer wanted to sell the renovated property in accordance with their agreement and said that it was her home.  The applicant states that as she could no longer do anything more for the respondent she asked that the parties re-evaluate their relationship.  Shortly thereafter the respondent stopped supporting the applicant financially and told the applicant to pack up and leave the home.

13. [13]
    The applicant claims in her affidavit that she made the following home-making contributions during the relationship:

1. (i)
   preparing and serving all meals, including tea and coffee for breakfast, lunch and dinner;
2. (ii)
   cleaning and decorating the home with little, if any, assistance from the respondent, including mopping and vacuuming the floors;
3. (iii)
   for a period, doing all of the laundry with no assistance from the respondent until the respondent undertook her own laundry;
4. (iv)
   attending to all the shopping for groceries and household supplies with little or no assistance from the respondent;
5. (v)
   attending to all errands and chores necessary for the running of the household with no assistance from the respondent; and
6. (vi)
   when the respondent had to prepare speeches or presentations for her work, the applicant would often help her and would continually support the respondent when she was under pressure and stressed from work.

14. [14]
    As at the date of the swearing of her affidavit, 2 March 2005, the applicant claimed that she was suffering severe financial hardship after she left the Pacific Boulevard home.  She claims that she had been unemployed and had to use her credit cards to pay for her living expenses after moving out.  She intended to commence a business on the Gold Coast utilising her training in dog grooming.  She has no superannuation or other financial resources to provide her with income or future financial support.  At the time her affidavit was sworn the applicant was renting a room in Labrador and paying for this out of her Centrelink benefits.  A further $190 per week for food, phone bills, electricity and personal effects was paid for by using her credit cards.  The applicant was receiving $200 by way of unemployment benefits per fortnight.

15. [15]
    The applicant states that the respondent earns $120,000 per year working six days a week as a customer services manager on a full-time basis. 

16. [16]
    In her affidavit in reply, filed on 14 October 2005, the applicant states that at the time she and the respondent commenced living together she did not wish to have a relationship with the respondent because she was not in love with her.  However, she denies having said that she “was not and never would be prepared to enter into a relationship” with the respondent and also denies having said that she “would never, and could never, feel otherwise”.  The applicant does admit to having had sexual relations with another woman, Louise Laporte, on two occasions in 2001.  The applicant admitted that the parties did have separate bedrooms explaining that she had three dogs which slept in her room and that she tended to snore.  However, the applicant denied that she did not permit the respondent to enter the bedroom.  The applicant claims that the parties did sleep in the same bed and that this usually occurred after they had had sexual relations.

17. [17]
    The applicant stated that moneys received by her from the respondent would only have been for shopping and things relating to the house.  She denied receiving money from the respondent because she was “finding it difficult to cope financially”.  She admitted to using, but not abusing, the respondent’s savings card, particularly when she was doing work around the house.  The applicant claimed that she asked the respondent to put her name on the title for the property at 15 Pacific Boulevard but that the respondent refused to do so because the applicant was not working at the time and because it was too difficult.

18. [18]
    The applicant stated that the respondent would not let her out of her sight and that she took the respondent to all social events that she attended.  The applicant claimed that on most Friday nights she would stay at home with the respondent either by themselves or else they would have people over.  According to the applicant she was not interested in going out to bars and rarely went out on Friday nights or on any other night but that when she did go out, the respondent would be invited.

19. [19]
    The applicant denied having worked as a prostitute although she did admit that she had worked as a mistress in 1999, as a dominatrix, for a period of eight months.  The applicant claimed that this fascinated the respondent who “obsessed” over her. 

20. [20]
    The applicant stated that she was entitled to claim Centrelink benefits and that she was only required to disclose a relationship with a member of the opposite sex.  She claimed that staff at Centrelink had informed her that a same-sex relationship did not need to be declared.

21. [21]
    In relation to their sexual relationship the applicant claimed that the parties slept in different beds simply to enable both to get a better night’s sleep.  The only time that the applicant kept the door to her bedroom locked was when she was not there.  This, it was said, was because the applicant had her bedroom in the garage which was accessible to intruders when she was not at home.  Otherwise, according to the applicant, the door to her bedroom remained open.  She states that she does recall the respondent begging for permission to enter her bedroom at times, particularly when she had been drinking, so that she would have sex with her.  The applicant states that she was not interested in having sex with the respondent during her IVF treatment.  She claims that the respondent and she engaged in sexual acts approximately 12 times during their relationship.  The applicant states that the respondent, although being of very submissive character in normal life, was very dominant when it came to sexual acts.  She states that she and the respondent kissed on a daily basis.  A statement made by the respondent that the applicant said she found her repulsive and that the applicant’s skin crawled when she touched the respondent arose, according to the applicant, out of a sexual encounter where the respondent attempted to put her whole fist inside the applicant.

22. [22]
    In relation to financial matters, the applicant claimed that the respondent used to beg to give her money so that she would not feel that she had to ask.  She claimed that she withdrew money from the respondent’s accounts but only with her permission and that this was for groceries, other household items, furnishings and renovations for the house.  The applicant denied having used the respondent’s bankcards for gambling on poker machines or for purchasing alcohol.

23. [23]
    The applicant claimed that she attended work functions with the respondent including birthday parties, film openings, engagement parties and other functions.

24. [24]
    In relation to the IVF treatment, the applicant claims that the respondent brought home for a dinner party, a male colleague of hers and his boyfriend of 12 years.  It was decided by the applicant and the respondent and the two males, that the Monash IVF program would be used with the respondent’s work colleague being the sperm donor.  The applicant claimed that the respondent wanted her to sign a guardianship form but that she refused to do so.  The applicant denied that she ever stated to the respondent that any child born as a result of the IVF program was to be hers alone and that it would have nothing to do with the respondent.

25. [25]
    The two affidavits of the applicant to which reference has been made comprise, in effect, the applicant’s examination-in-chief at the hearing.  In cross-examination the applicant stated that she was now living in Perth, having moved there some three weeks before the hearing commenced and that she was living with her girlfriend, H, with whom she had been in a relationship for a little more than a year.  The applicant stated that she was receiving unemployment benefits at the present time. 

26. [26]
    The applicant conceded that at no stage did she and the respondent ever have a joint bank account and that she had never been included on the telephone service contract or the electricity account.  She also conceded that the garage, in which her bedroom was situated, had a separate phone which was an extension from the telephone in the main house.  She also had a refrigerator and a TV set in the garage.  The applicant agreed that her Centrelink benefits were not sufficient to support herself and that the shortfall had been taken up by the respondent.  She also accepted that the mortgage payments were made by the respondent on the Pacific Boulevard residence and that the respondent paid all the rates, together with all utility payments including electricity and telephone.  The applicant further accepted that she had been permitted to take cash from the respondent’s Citibank account totalling a little over $3,000 and that the respondent had paid for the applicant’s private health care with Medibank Private in the years 2003 to mid-2004.  The respondent also, it was accepted, paid some miscellaneous expenses including the applicant’s credit card debt which totalled approximately $16,000.  The applicant agreed with the suggestion of counsel for the respondent that none of the Monash IVF program records or the hospital records disclose any mention of the respondent’s name.  All the costs associated with the IVF program were paid by the respondent.  The applicant conceded that she had rejected the respondent as a lover on a couple of occasions but not in terms of a permanent relationship.

27. [27]
    The applicant agreed that when she left the Pacific Boulevard house in October 2004 she started up a business in the form of a dog day-care centre.  To this extent the applicant was prepared to accept that she did have an income-earning capacity throughout the time that she shared the Pacific Boulevard property with the respondent.

The Evidence of the Respondent

28. [28]
    The evidence-in-chief of the respondent is effectively contained within her affidavit filed on 11 November 2005 and her statement pursuant to the Practice Direction No. 5 of 2004 dated 1 March 2006.  In her affidavit the respondent denies that she and the applicant were at any time in a de facto relationship.  She states that in January 2001 the applicant invited her to share her rented premises at 3 Lotus Key, Broadbeach Waters.  The applicant stated to her that she needed help in paying the rent.  At that time the respondent had not found suitable rental premises for herself, although she claimed that there was no need for her to move out of her parents’ holiday home at Mermaid Waters where she was residing on a rent-free basis.  The respondent moved into the applicant’s rental premises in January 2001 and during the time that the parties resided in the Lotus Key house the respondent developed feelings for the applicant.  On one occasion, according to the respondent, the parties had sexual relations.  It was shortly after that time that the respondent told the applicant of her feelings and asked whether she would be prepared to enter into a relationship with her.  The respondent claims that the applicant’s response was that she was “not and never would be” prepared to enter into a relationship with her and that she “only had feelings for [her] as a friend, and that she would never, and could never, feel otherwise”.  The applicant told the respondent that the two could only ever be companions – nothing more, and that “it will never be what you want it to be”.  At no time during the period the parties resided together, did the applicant ever state anything to the contrary, according to the respondent.  The respondent claimed that she heard the applicant make the same comment to several other people at various times during the period the parties resided under the one roof.  The respondent claimed that the applicant stated to her on several occasions that she would “never consider [me] to be anything more than a friend”.  Despite that, the respondent claimed that throughout most of the time that the parties resided under the same roof, she was hopeful that they would at some time enter into a relationship with each other.

29. [29]
    The respondent stated that the applicant had several relationships with other women during the time that the parties resided under the same roof.  These relationships were of an intimate nature according to what the respondent claims she was told by the applicant.  The respondent claimed to have seen text messages sent to the applicant’s mobile telephone which were suggestive of an intimate relationship between the sender and the applicant.  In July 2004 the respondent returned home to find the applicant sitting very close to another woman on the couch.  When she asked the applicant what was going on the applicant replied to the effect that she was in a relationship with that woman and that it was none of the respondent’s business.  That other woman, it transpired, was H.

30. [30]
    During the period from January 2001 to September 2001, that is, the period during which the respondent shared the applicant’s rental premises at Broadbeach, the parties, according to the respondent, at all times had separate bedrooms.  The respondent claims that she was not permitted to enter the applicant’s bedroom and did not do so.  According to the respondent the parties never slept together in the same bed.  During this time the respondent paid her share of the rent and food costs while also giving money to the applicant on occasions because the applicant was unemployed and was finding it difficult to cope financially.  There was, according to the respondent, no pooling of funds and no joint purchasing of assets.  The parties did not jointly incur any liabilities and had no joint bank accounts.

31. [31]
    The applicant claims that there were few occasions on which the parties socialised together and when this did occur, the applicant did not suggest or act in such a way as to lead other people to believe that they were a couple.  On Sundays the applicant would drink with friends at a gay bar named the “Meeting Place”.  On these occasions the applicant was not accompanied by the respondent.

32. [32]
    The applicant worked as a prostitute, according to the respondent, advertising herself as “Stella” in the Gold Coast Bulletin newspaper.  The respondent states that clients were entertained by the applicant at rental premises at Mermaid Beach and also, on occasions, when the respondent was at work, at the rental home the parties were sharing.

33. [33]
    With respect to the circumstances in which the Pacific Boulevard property came to be purchased, the respondent in her affidavit, stated that in August 2001 she went to a newsagency and obtained a real estate brochure from an adjoining real estate office.  The brochure indicated that there was a property close to where the parties were residing.  Later that same day the parties had a friend over for drinks and decided to go for a drive during which the respondent suggested that they drive past the property at 15 Pacific Boulevard advertised in the brochure.  The parties and their friend went into the property and whilst the applicant remained in the kitchen speaking to the real estate agent, the respondent walked through the home inspecting each room.  When she returned to the kitchen she stated that she liked the home and was prepared to make an offer.  The respondent claims that there were no negotiations of any substance and that she signed the contract to purchase within less than 30 minutes of entering the house.

34. [34]
    The respondent denies that there were any discussions between herself and the applicant, or any consideration on her part, as to the applicant being included on the title either at the time of purchase of the property or since.  The respondent states that at no time did she form the view that the applicant had or should have any interest in the property.  At no time did the respondent request that the applicant make any contribution to the property, financially or otherwise.  The respondent states that the Pacific Boulevard property was purchased by her for the amount of $300,000.  The purchase was funded by a loan from Aussie Home Loans.  The respondent states that she subsequently refinanced the property on     7 March 2005, using the sum of $38,992.96 derived from the refinancing to pay out her Citibank credit card which had been used by the applicant to accrue debts.

35. [35]
    The respondent states that at no time did the applicant make any financial contribution to mortgage payments, local government rates or any other financial outgoings associated with the retention or maintenance of the property.  The table in paragraph 9 with respect to mortgage payments made by the respondent from   3 September 2001 to 13 October 2005 is not challenged by the applicant.  Similarly, the table in paragraph 10 of the respondent’s affidavit with respect to the payment of local government rates from 19 October 2001 to 12 August 2004 is not challenged.  The table in paragraph 11 of the respondent’s affidavit with respect to the payment of utility payments (power and phone) from 6 November 2001 to 9 September 2004 is, again, not challenged.

36. [36]
    It was agreed by the parties, according to the respondent, that the applicant would pay the sum of $100 per week by way of board, after they moved into the property at Pacific Boulevard.  However, very shortly after reaching this agreement the applicant claimed that she could not afford to pay board payments.  The respondent states that the parties agreed that instead of paying board the applicant would do some general household chores such as cooking the evening meal and shopping.  The applicant did not cook breakfast for the respondent as the latter rarely eats breakfast.  She did not cook lunch for the respondent during the week, as the respondent was at work.  The respondent accepts that the applicant did cook the evening meal on most evenings.  According to the respondent, the applicant refused to clean the house and the respondent engaged cleaners on a permanent part-time basis throughout the time that the parties resided at Pacific Boulevard.  The applicant also refused to mow the lawns and accordingly the respondent paid for a man to do the lawn mowing through Jim’s lawn-mowing service.

37. [37]
    During the time the parties resided at Pacific Boulevard, according to the respondent, they at no time shared a bedroom.  When they moved in, the applicant said that she did not want to live in the house and promptly moved into the garage.  The respondent states in her affidavit that the applicant slept in the garage throughout the time the parties were at Pacific Boulevard.  The respondent slept in the main bedroom.  The applicant kept the door to the garage locked and would not allow the respondent to enter it.  The respondent recalls being intoxicated one evening and begging the applicant to allow her into her room, however, the applicant responded that she would never allow the respondent into her room.  According to the respondent the parties engaged in a sexual act on only two occasions, very shortly after moving into the home.

38. [38]
    During the period that the parties lived under the same roof at Pacific Boulevard the respondent states that there was no joint purchase of any assets or joint acquisition of any liabilities, and funds were not pooled.  There were no joint bank accounts.  According to the respondent, the applicant did not discuss financial matters with her.  She states that she did allow the applicant to withdraw funds on occasions, using the respondent’s bank debit card although the respondent never made the applicant a signatory on any of her accounts or nominated the applicant as a secondary card holder.  The respondent states that whilst the applicant used those funds in part to purchase groceries and other household items, she spent a considerable amount of money from the funds on gambling on poker machines and for the purchase of alcohol.  The respondent states that the applicant would typically, during the week, go to the shops to purchase groceries with which to cook dinner that night and also to purchase food for her three dogs.  The respondent estimates that the cost of feeding the dogs was approximately $100 per week.  The applicant would then go to a hotel, usually the Lone Star Tavern, where she would use the respondent’s debit card to withdraw funds to enable her to gamble during the remainder of the afternoon.

39. [39]
    According to the respondent, from September 2001 to when the applicant left the home at Pacific Boulevard, the parties did not socialise together frequently.  The applicant stated, in the hearing of the respondent, to many people, that she was not in a relationship with the respondent and that she would never be in a relationship with her.  The respondent states that she heard the applicant say that she “found me repulsive and that her skin crawled when I touched her”.  During this period the respondent states that the applicant did socialise with a number of other persons but did not attend work functions with the respondent except on one occasion.  Moreover, according to the respondent, the applicant engaged in regular sexual relations with L who would visit the applicant during the day and also subsequently with her current partner, H.  The applicant, states the respondent, refused to holiday with the respondent and the two shared holidays together on only two occasions.  In March 2004, according to the respondent, the applicant went to Sydney with H and purchased flowers and perfume for H, paying for the perfume by using the respondent’s credit card.

40. [40]
    From Christmas 2003 onwards the applicant stated that she intended to leave the Pacific Boulevard house and commenced packing at that time.  The respondent states that the applicant’s relationship with H commenced at about this time.  The respondent states that she begged the applicant to leave the house from at least March 2004 onwards.  She claims that she said to the applicant, “I love you, but I know I will never have you.  I accept that now finally.  I can’t stand seeing you having a relationship with other people”.

41. [41]
    In relation to the renovations carried out at the Pacific Boulevard property, the respondent acknowledges in her affidavit that the applicant did offer to assist in lieu of board payments.  However, according to the respondent, the applicant did very little to either assist in the renovation or general maintenance of the home.  According to the respondent there was no involvement on the part of the applicant with respect to the installation of a new kitchen and white goods, tiling of bathrooms, kitchen and other parts of the property, re-roofing, swimming pool installation, erection of a small jetty and dining room/deck roof.  General maintenance of the property, according to the respondent, was carried out either by A who she paid on a job-by-job basis or, where the work required was more complicated, by E.  The respondent states that the applicant made no financial contribution to the cost of the renovations which are detailed in paragraph 17 of her affidavit.  It appears from those details that the total expenditure in respect of renovations exceeded $95,000.  The respondent states that the renovations were funded by her partly from her income and partly by her increasing the mortgage encumbering the property.

42. [42]
    The respondent emphatically denies that she and the applicant ever entered into a relationship although she admits that up until a few months before the applicant moved out of the Pacific Boulevard property, it was her intention to do so.  The respondent claims that at no time did the applicant agree to enter into a relationship with her.

43. [43]
    The respondent claims in her affidavit that she gave to the applicant sums of money for her general needs from her Citibank account.  These amounts are said to total some $3,117.43 and are not the subject of any challenge by the applicant.  Furthermore, the respondent claims that she paid private health cover expenses to Medibank Private for the applicant from 29 March 2003 to 29 July 2004 totalling $1,362.30.  Again, this is not in contention.  In addition, according to the respondent, a number of the applicant’s miscellaneous expenses were paid by the respondent.  These are said to total $16,703.19 and although the applicant indicated on some occasions that she would repay these miscellaneous expenses, she has not made any attempt to do so.  A number of purchases were, according to the respondent, made by the applicant on the online shopping site, eBay, using the respondent’s credit card.  The total cost of such purchases is said to be $396.82.  The respondent claims that the applicant made no attempt to reimburse the respondent for these costs and that eventually the respondent put a stop to this activity.

44. [44]
    The respondent claims that when she commenced sharing premises with the applicant, the latter owned a Ford station wagon motor vehicle which was in poor repair.  It is claimed by the respondent that she purchased a VW Kombi van in October 2002, the applicant having agreed that she would sell her wagon and reimburse the respondent for the cost of the VW.  The respondent claims that she paid for both the maintenance and improvement of the Kombi van and that at no time has she been reimbursed by the applicant for such payments.

45. [45]
    According to the respondent, in early 2003, the applicant stated that she wished to have a baby.  The respondent believed, according to her affidavit, that if she was pregnant the applicant would stop her use of marijuana and heavy consumption of alcohol.  The respondent agreed to assist the applicant financially with the costs associated with the IVF procedure.  These totalled $7,376.95.  The respondent claims that at no time did she ever attend at the surgery with the applicant but that a male person who was a mutual friend and a work colleague of the respondent attended with her.  This person was presented as her partner and in fact, supplied the semen for the IVF procedure.  According to the respondent the applicant attended all counselling sessions either alone or with the donor and when admitted to hospital, went on her own.  The respondent claims that the applicant consistently refused to allow her to accompany her to the surgery.  According to the respondent the applicant told her that “it had nothing to do with [her]”.  She further stated to the respondent that the child would be hers alone and that it would have nothing to do with the respondent.  The respondent specifically recalls being told by the applicant on one occasion, “Don’t think you will ever be a part of the baby’s life”.  To the knowledge of the respondent she was at no time identified in any of the forms supplied by the applicant to the Monash IVF clinic as the partner of the applicant.  The respondent claims that, apart from her initial offer to pay for the procedure (to which she adhered) she never encouraged the applicant to continue with the procedure.

46. [46]
    A summary of the payments made by the respondent in respect of utility costs, home renovations, general needs, private health care, miscellaneous payments, eBay purchases, vehicle costs and IVF expenses are said to total $143,808.53.  This figure has not been the subject of any real challenge during the hearing.

47. [47]
    In the respondent’s statement pursuant to order 9 of Practice Direction No. 5 of 2004, the payments made by the respondent on behalf of the applicant with respect to Citibank card, private health insurance, miscellaneous expenses, eBay purchases, vehicle expenses and IVF treatment are said to total $42,856.30.  The respondent states in that document that she paid the sum of $126,985.37 towards the renovation of the property at Pacific Boulevard and that the applicant spent no more than six-and-a-half hours’ assistance with the renovations to and general maintenance of the property.  The respondent’s taxable income for the 2001 financial year was $99,335, in 2002 it was $107,359, in 2003 $128,918, in 2004 it was $127,143 and in 2005 it was $132,869.  The respondent holds shares in Austar Entertainment (74,314 shares at 125 cents each on trust for her parents), Broadcast Services (10473 shares at 24 cents each), AFT Corp (10,000 shares at 3 cents each) and Quicktrak (2140 shares at 27 cents each).  The respondent is indebted to the Bank of Queensland by way of mortgage to that bank in the sum of $437,000, the mortgage being in respect of the Pacific Boulevard property.  The respondent has superannuation funds with MLC of approximately $70,000.  She owns a Kia Sorrento motor vehicle valued at $28,000 and a Ford Galaxy motor vehicle valued at $2,500.  Her weekly recurring expenses are stated to be $465.

48. [48]
    In cross-examination the respondent was asked about her decision to move from her rent-free accommodation in Mermaid Waters (her parents’ holiday home) and move in with the applicant at her rental premises.  The respondent replied:

“That was after she spoke to me, after moving up here in November, I think it was, she was looking for a room-mate to share expenses and said ‘Would you like to’ – would we like to share and I – I liked [M] and said yes I would.  So I moved in, in the January.

Are you telling his Honour that the movement was on a basis that you were to share expenses?--Originally, the movement was on the basis of we were friends and that [M] was looking for someone to share her property with and I thought it was a great idea because she was my friend, I’d known her for a number of years and thought it would be nice to share the property, yes.

That wasn’t the actual financial arrangement once you’d moved in though, was it?--No.  [M] was unable to pay the bills and she was working for cash and I didn’t want her to do that as Stella and – so I said I would be happy to cover the bills for her to stop and find a – another job.  I didn’t want her doing that.”

49. [49]
    The respondent rejected the suggestion of counsel for the applicant that because the respondent had the greater earning capacity she would work and the applicant would stay at home to look after the house, cook and clean and take care of the domestic side of things.  The respondent replied by stating that the applicant does not actually do domestic duties as such.  She acknowledged that the applicant cooked for her but the respondent took care of her own washing after the first couple of times when the applicant put the floor mats in with the respondent’s clothes.  The respondent confirmed that she engaged a cleaner on a fortnightly basis and conceded that she, at no stage, undertook any of the cooking.

50. [50]
    The respondent was asked by counsel for the applicant why she did not simply go back to her parents’ holiday home where she could live rent-free if the respondent was not getting anything out of the relationship apart from a large bill each month.  The respondent stated that it was not a question of living rent-free but rather that she had purchased an asset for herself that she was working very hard to pay off and that she had her friend (the applicant) living with her.  Counsel then asked:

“If she was just a friend living there, it was costing you a lot of money, why didn’t you ask her to leave?--Because I cared about [M], I wanted a relationship with [M] as [M] has clearly stated this morning, I was infatuated with [M] and thought that she would see that we could have a great life together and that she would, I don’t know if the right word is give-in, but I truly felt that she would come round and say, yes, I want this with you but-----

So-----?-- -----she never did.

Is it your case that for three years and eight months, ten months or thereabouts, you suffered through a relationship of unrequited love;-----?--At times-----

-----is that what you’re telling us all?-- -----yes.  Absolutely, at times I was – and I think some of my writings show that I was confused, I was pleading and I was trying to – [M] has not a family and I was trying to create one, wrongly or rightly.  I was trying to show her I could support her and give her a good life but she was not interested-----”

51. [51]
    The respondent was cross-examined about the IVF treatment undertaken by the applicant.  She conceded that she had discussed with the applicant the possibility of having a child or children.  However, the respondent did not accept that the parties had agreed that the applicant would be the one to undergo the program because the respondent was the breadwinner in the relationship and it made more sense for the applicant to continue playing the “mother/wife” role.  The respondent stated that she at no stage had wanted to bear her own child and that the applicant had talked about wanting a child.  The respondent thought that were the applicant to have a child, it would change her life by encouraging her to drink and smoke less and would be an opportunity for the applicant to assume some responsibility.  It was on that basis that she agreed to fund the IVF treatment.  The respondent claimed that when she asked the applicant what the baby would call her the applicant replied, “Well, you’re not its mother, you will never be known to the baby as its mother.  You will be [X].”  The respondent recalled hearing the applicant on the telephone to her friend in Malta saying that she intended bringing the baby to Malta.  The respondent stated that she said to the applicant, “I can’t do this any more because if you do have a child and I become attached to that child you – and [Y] is responsible, you can’t take this baby away.”  The applicant is said to have replied, “I will do what I want,” to which the respondent stated, “Well, I can’t keep going”.  The respondent denied having purchased baby clothes but did concede that she had purchased a bouncer, a pram and a cot in anticipation of a birth.

52. [52]
    When questioned about her reasons for paying private health insurance for the applicant, the respondent stated:

“I, as I have said, cared and loved [M] and was trying to show her that I would be a good partner for her and wanted a relationship with her.  I earned a good living and thought that I would try and show her that I could care for her and that she would eventually be with me.

Are you trying to buy her reciprocal love?--Upon reflection, one might see it that way.

You certainly spent tens of thousands of dollars -----?--Yes, yes, I did.

-----didn’t you, on what you say was an exercise over nearly four years of unrequited love?--You can’t question love sometimes.  People do crazy things.

Well, I suggest to you, [T], it wasn’t in the least bit crazy, but was simply a reflection of the reality of your relationship.  You were in a loving relationship where you were the major earner and therefore you picked up the tab for the day-to-day costs and expenses associated with that relationship?--I have to disagree with you.  Our relationship was continual highs and lows.  It was not a loving relationship.  At times I felt like I was going mad and I was questioned by people on it, but it was not a loving relationship, it was a confused relationship on my behalf.”

53. [53]
    A substantial part of the cross-examination of the respondent concerned inscriptions written by the respondent in cards for the applicant.  This aspect of the respondent’s cross-examination is of considerable importance to the applicant’s case and I propose, therefore, to set out in full the inscription contained within each card.  In some cases it is possible to date the card.

The reference in Card 10 to “the babies” is to be understood as a reference to the applicant’s dogs.

54. [54]
    The respondent was taxed with the sentiments expressed in the cards, the suggestion being that the inscriptions more appropriately fit a close relationship rather than a situation involving flatmates.  The respondent sought to explain the inscriptions by conceding that she loved the applicant and that she wanted to try to convince the applicant that the two could have a life together.  She did not accept that she was expressing false sentiments in the cards and repeated that she was trying to convince the applicant to have a relationship with her.  Of some importance is the respondent’s claim that there were as many notes to the applicant as the number of cards tendered in which the respondent sought clarification of the applicant’s intentions.  In this regard counsel for the applicant asked:

“You refer to her reciprocating, giving you love, you are blessed if you only have half as much love to give to her as she gives to you.  Did she ever say to you, ‘What are you talking about, woman, you are just my flatmate’?--She said to me on many occasions, ‘This will not be the relationship that you are looking for.  We can be companions but we will not be lovers.’  And there were many – as I said, as many as there are these cards, there were many notes to [M] asking her for clarification, to stop seeing people.  I had many discussions with her about the parties she would have during the day while I was at work and said I didn’t want to support all her friends.”

55. [55]
    During her cross-examination the respondent was asked whether she received any cards from the applicant.  The respondent replied that she had attempted to locate cards received from the applicant and added “I used to receive postcards occasionally or a birthday card from [M] and it used to just say ‘Love [M] and the babies’ … or ‘your friend’ or ‘friends forever’.”

56. [56]
    The respondent, during her cross-examination, repeated several times that the applicant was her friend with whom she was trying to have a total relationship which the applicant would not give her.  She conceded that she had hoped to spend her life with the applicant, however, the applicant would not allow this.

Evidence of Persons other than the Parties

57. [57]
    A brief affidavit sworn by L was placed into evidence.  L is a close friend of the applicant.  She states that she took over the lease at 3 Lotus Key, Broadbeach Waters when the house at Pacific Boulevard was purchased.  L states that the parties were always together whether she saw them at their home, at the local shops or at social events.  L would often visit the applicant at her home during the day when the respondent was at work and states that on those occasions the applicant was always working on the house.  L further states that the applicant was constantly renovating and totally transformed the house to its present state.  L was not called to give oral evidence.

58. [58]
    E also swore an affidavit in these proceedings which was admitted into evidence.  E is a licensed builder who operates his own building renovation and property development business.  He states that he was approached by the applicant and asked to give a quote on some renovations to be carried out at the Pacific Boulevard property.  He subsequently met with the owner of the property, the respondent.  After negotiation with the respondent and at her direction, E carried out the following renovations at 15 Pacific Boulevard:

“a. A new kitchen was installed by the company ‘Mood Kitchen’.  Prior to the installation, I did some minor work, including removing the existing oven, to prepare the kitchen for the installation.  After the installation was carried out, I did other minor jobs on the kitchen.  I did not at any time whatsoever observe the applicant to do any work in relation to the kitchen installation and, to the best of my knowledge and belief, all work carried out was performed either by the tradesmen employed by Mood Kitchen or by myself;

2. I completely renovated two bathrooms, one an ensuite at the property.  The applicant did not gut the existing bathrooms to prepare them for renovation – I did.  The only work which I at any time observed the applicant to perform in relation to the two bathrooms was to take some discarded tiles – which I had removed – to my trailer.  This would have taken no more than 90 minutes in total.  It was the only work I ever observed the applicant to do in relation to the property.  I would estimate the value of the work performed to be approximately $40;

3. The respondent did not organise for the tiler to attend at the property to complete all of the tiling – I did.  The tiler was known to me and was a person who I had used previously;

4. I completed the reproofing over a four day period.  I do not recall the applicant even being present, much less assisting me in any way whatsoever;

5. I observed that the applicant did commence the painting of the loungeroom and of a feature wall in the kitchen, but that she did not complete the job and that a professional painter was called by the respondent to complete it.  Given that the professional painter would have had to effectively start from scratch, I would estimate that the value of this work performed was, at best, nil, and at worst, of a negative value;

6. I was called in by the respondent to repair some piping work which had been incorrectly performed by a swimming pool renovation firm which had been engaged by the respondent.  I was required to relay pipes and to otherwise finish or repair work which had not been done adequately.  The applicant had no involvement whatsoever with this work;

7. I observed that, save for planting a few trees, the applicant did not do any landscaping.  I erected a fence at the entrance to the property and cut down some palm trees.”

59. [59]
    E states that during the various times he worked on the Pacific Boulevard property he did not, except where stated above, ever observe the applicant doing any work at all on the property.  To his recollection the applicant was usually either lying on the couch or was not at home.  E states that he was present at the property when professional cleaners and lawn-mowing workers attended at the property.

60. [60]
    In his affidavit, E refers to assertions made by the applicant as to her role in assisting to complete the renovations at the Pacific Boulevard property.  He states that the applicant did not play a role in those renovations beyond the extent acknowledged by him as appears above.  He was not a friend of the applicant’s and did not reduce his price as a result of any friendship, supposed or otherwise, with her.  The applicant’s suggestion that she worked with E on the renovation work is entirely untrue, except in relation to her carrying out the bathroom tiles.  Beyond that task, E’s evidence is that the applicant did not do the bathroom with him, or work with him on the ensuite, main bedroom, toilet or laundry.  E states that the applicant was not even present when most of that work was carried out.   E states that it was he who engaged the tiler who was a person known to him.  The tiler and E did the layout with the applicant having nothing whatsoever to do with it.  E rejects the assertion of the applicant that she gutted the bathroom and claims that he performed that task.  E states that he was at all times directed by the respondent as to the work he was required to perform.  He was at all times paid directly by the respondent and he was unaware of any financial contribution made by the applicant to the costs of the material or his services.  E recalls being introduced by the applicant to a woman named L during 2003, whilst he was working at the property.  He subsequently saw L at the property on at least another three occasions.  On each of these occasions the applicant but not the respondent was present.

61. [61]
    In cross-examination E stated that the applicant helped take out tiles when they had been removed and that it may have been the applicant who assisted him to glue a mirror on the wall and that the applicant helped him take out a bath.  E also could recall that the applicant at one stage was painting a wall in the dining area.  Between his visits to the property to do various projects for which he had been engaged, he did not notice changes in the property apart from the installation of the swimming pool.  E did recall that the applicant had planted some bamboo and other plants around the pool.

62. [62]
    MM was called on behalf of the respondent and gave his evidence via telephone link.  MM is the Operations Manager for Monash IVF Queensland.  MM stated that Monash in Queensland is able to provide services to lesbian women and that there would be no reason why that service availability would not be confirmed if Monash were asked about it.  In cross-examination MM said that Monash would only discuss the provision of their services to lesbian women if that were raised by the enquirer and that Monash did not ask apparently heterosexual couples whether or not they are lesbians.  In re-examination MM confirmed that it was not necessary for a partner to be identified when enquiries were made about IVF.

Credibility of Witnesses

63. [63]
    The applicant, in my opinion, was not an impressive witness.  At times she overstated her case, for example, in relation to her contribution towards renovating the respondent’s house.  She also provided rather implausible explanations in relation to matters such as the reason for her not being included on the title.  By no means an inexperienced business woman, the applicant’s claim that her receipt of Centrelink benefits in some way could be said to disqualify her from being included on the title is fanciful.  It is difficult to believe her evidence that she accepted such an explanation from the respondent in this regard.  I have little confidence in the applicant’s evidence generally.  I did not feel that she was a forthright and honest witness such that her evidence could be acted upon with any degree of confidence.  Where her evidence conflicts with that of the respondent and finds no support from any other source, I am unable to accept it.

64. [64]
    By contrast, I found the respondent to have been both honest and reliable throughout her testimony.  She was prepared to make concessions when it was appropriate to do so, for example, in relation to having had sex with the applicant on occasions.  The respondent readily conceded that she desired to have a de facto relationship with the applicant.  She acknowledged her generous financial support of the applicant, and did not deny, or (in my view) seek to diminish the tasks carried out by the applicant in relation to renovating her house.  I generally accept the evidence of the respondent.

65. [65]
    With respect to the evidence of E, I have no hesitation in finding it credible.  E impressed me as both honest and accurate in his account of his dealings with the parties.  I accept his evidence.

66. [66]
    MM was clearly an honest and reliable witness, whose evidence should be accepted.

67. [67]
    L did not give oral testimony.  Her affidavit should be treated with some caution as it conflicts with the evidence of E in material respects dealing with the extent of renovation work carried out by the applicant.  Her close friendship with the applicant is likely, in my view, to have somewhat coloured her evidence.  I am not prepared to give the contents of her affidavit any significant weight.

Findings

68. [68]
    Section 32DA of the Acts Interpretation Act 1954 relevantly defines the term “de facto partner” as follows:

1. In an Act, a reference to a “de facto partner” in a reference to either 1 of 2 persons who are living together as a couple on a genuine domestic basis but who are not married to each other or related by family.
2. In deciding whether 2 persons are living together as a couple on a genuine domestic basis, any of their circumstances may be taken into account, including, for example, any of the following circumstances -

1. the nature and extent of their common residence;
2. the length of their relationship;
3. whether or not a sexual relationship exists or existed;
4. the degree of financial dependence or interdependence, and any arrangement for financial support;
5. their ownership, use and acquisition of property;
6. the degree of mutual commitment to a shared life, including the care and support of each other;
7. the care and support of children;
8. the performance of household tasks;
9. the reputation and public aspects of their relationship.

3. No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether two persons are living together as a couple on a genuine domestic basis.
4. Two persons are not to be regarded as living together as a couple on a genuine domestic basis only because they have a common residence.

69. [69]
    A reference in Part 19 of the Property Law Act (“PLA”) to a “de facto partner” is, by virtue of s 260 of the PLA, taken to be a reference to the term as defined in s 32DA of the Acts Interpretation Act 1954.  A “de facto relationship” is defined by s 261 of the PLA as “the relationship between de facto partners”.

70. [70]
    The nature of a de facto relationship was considered by Dutney J in S v B [2004] QCA 449:

“De facto relationships are by nature fragile.  The robust institution of marriage survives until formally dissolved by legal process, even though the parties are no longer capable or exhibit none of the observable indicia of a domestic arrangement.  It has been recognised, however, that the persistence of those indicia are fundamental to the continuance of a de facto relationship.  In Hibberson v George (1989) 12 Fam LR 725 at 739-740 Mahoney JA, with whom Hope and McHugh JJA agreed, spoke of the de facto relationship as follows:

‘There is, of course, more to the relevant relationship than living in the same house.  But there is, I think, a significant distinction between the relationship of marriage and the instant relationship.  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 that 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.’”

71. [71]
    Dutney J noted that the passage set out reflected the current view of the New South Wales legislation which for present purposes is materially identical to the Queensland provisions.

72. [72]
    In my opinion, the passage from Hibberson referred to by Dutney J is relevant to the instant case inasmuch as the respondent was, throughout the time that the parties shared a roof, in a similar position to that of a person seeking to restore a broken down relationship.  I am satisfied that the respondent fervently desired a relationship, but whenever she implored the applicant to enter into a relationship she was rebuffed.  The applicant, I find, never considered herself bound to a relationship.  She accepted the material benefits flowing from the respondent but never accepted her affection by committing to her emotionally, notwithstanding some isolated acts of sexual intimacy.

73. [73]
    It is not the case that the applicant is required to persuade me of the existence of facts for each of the nine criteria set out in s 32DA(2) of the Acts Interpretation Act 1954.  She does, however, bear the onus of persuading me generally, with reference to those criteria, that a relationship existed.

74. [74]
    As to the nature and extent of their common residence (s 32DA(2)(a)), I accept that the parties did live under the one roof.  However, for almost the whole of the period that that was the case, the applicant lived in the garage of the dwelling.  In the garage the applicant had a telephone, a refrigerator, a television and there was a doorbell on the garage.  These circumstances do not, in my opinion, appear readily consistent with the existence of the kind of domestic relationship of which the Act speaks.  There seems to have been no compelling reason why the applicant could not have used one of the other bedrooms in the house if her snoring was of concern, while the dogs slept in the garage.

75. [75]
    In relation to the length of the relationship (s 32DA(2)(b)), I accept that if there had been a relationship, it could have existed for no longer than three-and-a-half years from January 2001 to July 2004.  It will be recalled that the applicant’s evidence was that the claimed relationship ended around about her birthday, although she did not move out until October.

76. [76]
    Whether or not a sexual relationship exists or existed (s 32DA(2)(c)) is a matter that cannot simply be determined by reference to acts of sexual intimacy.  Certainly, there was an act of sexual intimacy whilst the parties were still living in the house rented originally by the applicant in 2001, and there were at least two further sexual encounters in the respondent’s house, the subject of these proceedings.  However, such isolated instances of sexual intimacy do not, in my view, suggest that a sexual relationship existed.  Indeed, the evidence suggests that the applicant indulged in at least two acts of sexual intimacy with L and perhaps further acts of intimacy with other persons.  These acts were not seen by the applicant as involving an emotional attachment and I rather think that the isolated and infrequent sexual encounters between the parties should be viewed in the same light.

77. [77]
    The degree of financial dependence or interdependence, and any arrangement for financial support (s 32DA(2)(d)) were the subjects of largely uncontroversial evidence.  I accept that the parties did not pool funds and did not jointly purchase any assets or incur any liabilities together.  At no time did they have joint bank accounts.  In her statement pursuant to Practice Direction No. 5 of 2004, the respondent claims to have made the following payments for or on behalf of the applicant:

1. (1)
   Citibank card: $  3,117.45

2. (2)
   Private health insurance: $  1,362.30

3. (3)
   Miscellaneous: $16,703.19

4. (4)
   e-Bay purchases: $    396.82

5. (5)
   Vehicle: $13,899.59

6. (6)
   In vitro fertilisation $  7,376.95

TOTAL:  $42,856.30

78. [78]
    The evidence generally supports the claims of the respondent as set out above and indicates a degree of generosity on her part.  However, this level of financial support is not necessarily indicative of the existence of a relationship such as one would expect in, say, the case of a husband supporting a wife, or a working de facto partner supporting a de facto.

79. [79]
    Rather, I accept that the financial support of the applicant by the respondent was an incident of the latter’s courting whereby she was attempting to persuade the applicant to enter into a relationship with her.  Ultimately, I am satisfied, the financial support did not succeed in advancing the relationship or in attracting the applicant’s interest in forming and maintaining a relationship with the respondent.  However, the financial support was based almost solely on the desire of the respondent to attract the applicant’s interest.

80. [80]
    The ownership, use and acquisition of property by the parties (s 32DA(2)(e)) are reflective of their maintaining completely independent financial lives.  There were no shared bank accounts and no joint purchase of chattels.  So far as the house is concerned, this was obtained in the respondent’s sole name and paid for wholly by her.  The respondent was the sole borrower.  No financial contribution was made by the applicant.

81. [81]
    The degree of mutual commitment to a shared life, including the care and support of each other (s 32DA(2)(f)) revealed by the evidence is, in my view, minimal.  There seems to have been very little in the way of shared socialising, and what there was indicated cohabitation rather than mutual care and support.

82. [82]
    Counsel for the respondent, in his closing submissions, was critical of the failure by the applicant to call several witnesses who may reasonably have been expected to testify as to the parties’ care and support of each other.  In particular, counsel notes the omission to call evidence from H who has now moved with the applicant to Perth.  I am asked to infer that the evidence of that person (who surely must have been able to speak of the reputation of the parties – that is, to satisfy the last of the criteria in s 32DA(2)(f)) would not have assisted the applicant’s case.

83. [83]
    Counsel further submits that it is astonishing that no evidence was called from D (the sperm donor) or from his male partner M.  Both, it was submitted, must have been in a position to speak of their sense of the reputation and public aspects of the relationship between the parties.  Again, I am asked to infer that their evidence would not have assisted the applicant’s case.

84. [84]
    The same submission was made in relation to B, the real estate agent who had (according to the applicant’s evidence) a conversation with the applicant about money whilst the respondent was inspecting the house.  Again, I am asked to infer that whatever he could say would not have assisted the applicant.

85. [85]
    Although the submissions of counsel for the respondent in respect of the operation of the rule in Jones v Dunkel have some degree of cogency, there really is no need to call in aid the rule because of the paucity of evidence to support any suggestion of a shared life by the parties.  Certainly, one struggles to discern a degree of mutual commitment to such a condition.  I am left with a marked impression that very little, if any, mutual commitment of the kind envisaged by the legislation was displayed, and which might reasonably lead to a conclusion that the parties were living together as a couple on a genuine domestic basis.

86. [86]
    The care and support of children (s 32DA(2)(g)) is not of immediate relevance.  However, the matter involving the IVF treatment may, for convenience, be considered here.  The respondent’s evidence was that the applicant did not want her as a “parent” of a child she was to conceive.  The applicant was of the view that in this State it was unlawful to be artificially inseminated if one did not have a male partner.  The basis for such a view was not satisfactorily explained.  The explanatory booklet (part of Exhibit 8) entitled “Artificial & Donor Insemination Information” Version 5, May 2003, contains the following statement:

“In addition, there is no legal requirement for the patient accessing [Donor Insemination] treatment in Queensland to have a male partner, nor any partner at all, but the counselling process is mandatory, as in Victoria, and the same advice is given regarding the program and the potential outcomes.”  (See p 11, para 13.2)

87. [87]
    This extract makes it clear that no impediment exists that would prevent a single or lesbian woman availing herself of the services of the clinic.  The evidence of MM confirms that it is not necessary to have a partner of any kind in order to access the program.

88. [88]
    The applicant, I am satisfied, elected to exclude the respondent from the donor insemination process.  This is partly evidenced by the absence of the respondent’s personal details in the application material.  The attempts by the applicant to become pregnant by participation in the donor insemination program cannot, in the circumstances, be viewed as an indicia of a mutual relationship.  There was no intention on the part of the applicant to conceive a child and to raise that child as part of her relationship with the respondent.  I reach that conclusion notwithstanding the hopes of the respondent for a successful pregnancy and the purchase by her of a pram and other items.  The respondent was, once again, shut out by the applicant from sharing her life.   I should indicate at this point that I reject the submissions of Counsel for the applicant that the reasons for the ending of the relationship by the respondent were that the renovations had been completed and that the IVF program had been unsuccessful.  The evidence, in my view, does not support such a finding.  It is true that a document headed “Statement of Applicant Pursuant to Practice Direction” and dated 7 March 2006 contained the following statement:

“The applicant perceived that the respondent now considered her as surplus to requirements as she no longer had a role in renovating and was unwilling to be involved in further attempts to have a child.”

89. [89]
    Obviously, this speaks only of the perception of the applicant.  It was not part of the sworn evidence (either written or oral) of the applicant and it was not put to the respondent in her cross-examination.  The document itself has no status as evidence.

90. [90]
    The performance of household tasks (s 32DA(2)(h)) was not, the evidence reveals, solely the domain of the applicant.  So far as cooking and preparing meals are concerned, it may be accepted that when the parties were at home of an evening the applicant would assume responsibility for preparing dinner.  However, there was no breakfast cooked, and the respondent was at her place of employment during the day so there was no need to prepare a shared meal at least during the working week at lunch time.  Other forms of housework were, to a large extent, preformed by each of the parties.  In general terms, the evidence does not suggest that this was a case where the applicant took care of the housekeeping while the respondent worked to earn all the money.

91. [91]
    The reputation and public aspects of the relationship of the parties (s 32DA(2)(i)) have already been touched upon when considering the identities of those persons who might reasonably have been expected to give evidence in support of the applicant’s case.  It is not necessary to traverse this aspect of the case again.

92. [92]
    The provisions of s 32DA(3) should be noted.  The sub-section provides that “no particular finding in relation to any circumstance is to be regarded as necessary in deciding whether two persons are living together as a couple on a genuine domestic basis.”  Sub-section (4) provides that “two persons are not to be regarded as living together as a couple on a genuine domestic basis only because they have a common residence.”

93. [93]
    The jurisdiction conferred by s 255 of the PLA to facilitate a just and equitable property distribution at the end of a de facto relationship in relation to the de facto partners and, in particular cases, any child of the de facto partners obviously cannot exist in the absence of a finding that the relevant parties were, at a material time, in fact, de facto partners.  S 260 of the PLA relevantly provides:

“260 Extended meaning of de facto partner for pt 19

(1) A reference to a de facto partner is a reference to either 1 of 2 persons who:

1. (a)
   are, under the Acts Interpretation Act 1954, section 32DA (section 32DA), de facto partners of each other; or

2. (b)
   have been, or would have been had section 32DA been in force, de facto partners of each other, but who are no longer living together as a couple on a genuine domestic basis within the meaning of section 32DA.

…”

94. [94]
    S 261 of the PLA provides that “a de facto relationship is the relationship between de facto partners.

95. [95]
    The evidence in this case is such that I am not persuaded that the applicant and the respondent were de facto partners of each other during the period of their cohabitation or that a de facto relationship existed between them.  I am unable to conclude that they were living together on a genuine domestic basis within the meaning of s 32DA of the Acts Interpretation Act 1954.  Accordingly, I conclude that this Court lacks the jurisdiction to make a property adjustment order pursuant to the provisions of s 286 of the PLA.

96. [96]
    Although the originating application in this matter sought, in addition to an order under s 286 of the PLA, an order that the respondent hold any interest in any property of which she is a registered owner on constructive trust for the applicant, in the proportions of 50% to the applicant and 50% to the respondent, this was not pleaded.  Accordingly, this part of the application must also be dismissed.

97. [97]
    I will, if required, receive submissions as to costs in due course.

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