Shelley and Markhov [2012] FCWA 68

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WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT -PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1 The parties in this matter have asked the Court to determine the nature of a relationship they had and which spanned 14 years. The applicant, [Kanya Shelley], says the parties were in a relationship from 1995 until 5 October 2008. She says that for most of that time it was a committed and marriage-like relationship. On the other hand, the respondent, [Mihail Markhov], says that although they had a friendship over that period of time their relationship was that of housemate and tenant.

Relevant legislative provisions

2 Ms Shelley has made her application pursuant to Part 5A of the Family Court Act 1997 (“the Act”). Part 5A permits former de facto partners, in some circumstances, to apply to the Family Court of Western Australia for a resolution of their dispute regarding how property should be divided. Section 205U(2) provides Part 5A “does not apply to a de facto relationship that ended before the commencement of this Part”. Part 5A came into effect on 1 December 2002.

3 The question before the Court at this stage of the proceedings is simply whether a de facto relationship ever existed between the applicant and respondent and, if so, whether the Act applies to it.

4 A de facto relationship is defined in s 13A of the Interpretation Act 1984 (WA) (“Interpretation Act”). That section provides as follows:

(1) A reference in a written law to a de facto relationship shall be construed as a reference to a relationship (other than a legal marriage) between 2 persons who live together in a marriage-like relationship.

(2) The following factors are indicators of whether or not a de facto relationship exists between 2 persons, but are not essential ⎯

(a) the length of the relationship between them;

(b) whether the 2 persons have resided together;

(c) the nature and extent of common residence;

(d) whether there is, or has been, a sexual relationship between them;

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

(f) the ownership, use and acquisition of their property (including property they own individually);

(g) the degree of mutual commitment by them to a shared life;

(h) whether they care for and support children;

(i) the reputation, and public aspects, of the relationship between them.

…

(5) The de facto partner of a person (the first person) is the person who lives, or lived, in the de facto relationship with the first person.

5 It is also necessary to consider the application of s 205Z of the Act which provides as follows:

(1) A court may make an order in relation to a de facto relationship only if satisfied

(a) there has been a de facto relationship between the partners for at least 2 years;

(b) there is a child of the de facto relationship who has not yet attained the age of 18 years and failure to make the order would result in serious injustice to the partner caring or responsible for the child; or

(c) the de facto partner who applies for the order made substantial contributions of a kind mentioned in section 205ZG(4)(a),(b) or (c) and failure to make the order would result in serious injustice to the partner.

(2) In deciding whether there has been a de facto relationship between the partners for at least 2 years, the Court must consider whether there was any break in the continuity of the relationship and, if so, the length of the break and the extent of the breakdown in the relationship.

(3) Subsection (2) does not limit the matters the court may consider.

5 It is often hard to discern when a de facto relationship commences. Unlike a legal marriage there is no formality. When or if a relationship becomes a de facto relationship may be attended with much uncertainty. When a de facto relationship ends may also be attended with much uncertainty. The legislation does little to assist in resolving this.

6 The matters identified and listed in s 13A of the Interpretation Act are not decisive in identifying the point at which a de facto relationship can be said to have commenced. The matters set out in the Interpretation Act are simply indicators of whether or not a de facto relationship exists. They are not essential. They may or may not be present. The issue to which they are relevant is whether two people are living together in a marriage-like relationship. This phrase necessarily draws attention to whether the parties are living in a relationship which exhibits the characteristics of the relationship of marriage, save for the solemnities involved in the formal exchange of wedding vows. People arrange their affairs and relationships in many and various ways. It is therefore understandable that the legislature has not attempted to define more precisely the kind of relationship that is regulated by the Act.

7 It is Ms Shelley, as the party asserting the de facto relationship, who must prove that a marriage-like relationship existed here. She must positively prove the existence of its defining characteristics, rather than being required to prove the negatives (SvB [2005] Qd R 537.)

Preliminary observations

8 I am mindful that these parties, coincidentally, both migrated to Australia in 1991. Ms Shelley, who was born in Thailand, came to Australia when she was about 33 years old. She is a registered nurse. Dr Markhov, who was born in Bulgaria, came to Australia when he was about 37 years old. He has qualifications as an engineer. English is not their first language and each spent their early years in very different living environments. Each presented as bilingual and bicultural.

9 It is apparent that each party has very strong connections with their culture of origin.

10 Each party has a reasonable command of spoken English. Throughout the trial each appeared to understand what was being said and each was able to query counsel if they did not understand what was being asked of them. To varying extents the accent and somewhat convoluted sentence structure of each party made their answers sometimes difficult to understand.

11 Whilst the manner in which Dr Markhov gave his evidence was more polished and urbane than Ms Shelley, I consider they both suffered from real difficulties in fully comprehending and expressing themselves in the English language, understandably, given it is not their birth language.

12 I had some doubts about the accuracy and thus reliability of the evidence of both parties. There were a number of occasions on which each was unable to give a plausible explanation for their actions and behaviours. The parties were often contradicted by comments made on earlier occasions or by independent evidence. In instances where credibility is an issue, I have specifically addressed this where relevant in the judgment.

13 Mr Rynne, counsel for Ms Shelley, also drew the Court’s attention to a judicial pronouncement by Kirby P (as he then was) in Videski v Australian Iron & Steel Pty Ltd (1993) NSWCA 282 where his Honour noted, in dealing with a claim for lump sum workers’ compensation by a Macedonian worker, that:

In our multicultural society it is imperative that judicial officers should avoid expecting from people of different cultural traditions the same emotional imperatives that have, until now, tended to influence Australian values. For all I know, the behaviour in court of this worker, which seems to have struck her Honour as “exaggerated” or “distorted”, would be perfectly normal for a claimant with back pain appearing in a Macedonian courtroom. Perhaps there it would be considered perfectly natural for a person, facing his or her decision maker, to lay emphasis upon the matters of which that person is complaining.

14 His Honour goes on to emphasise the need for Australian judges in today’s society to be on guard against the imposition of behavioural stereotypes when dealing with litigants or witnesses with different cultural traditions.

15 However, there is always room for a contrary view. One has only to read another judgment in the same case to appreciate this. Kirby P’s brother judge, Meagher JA, categorised Kirby P’s comments as extraordinary:

In this matter I have read the draft judgments of Kirby P and Cripps JA. I agree entirely with the latter. It follows I disagree with the former. In normal circumstances that is all which need be said. However, there is one aspect of Kirby P’s judgment which is so extraordinary that it requires comment.

The trial judge found that Mr Videski exaggerated when he gave his evidence. On this slender, and one would have thought unexceptionable observation, his Honour develops an elaborate, and distinctly xenophobic, rodomontade. His Honour says that Mr Videski only exaggerated because he was a Macedonian, all Macedonians are untrustworthy exaggerators, in this respect they do not resemble Anglo Saxons, and judges ought be reeducated unless they appreciate these truths. One cannot permit such sentiments to be uttered without protest.

Alexander the Great was a Macedonian, and Arrian’s Life of him emphasized his honesty and taciturnity. There was no evidence before the Court that his epigoni have changed. We cannot assume that they have. On the face of it they are not the only people who have exaggerated when giving testimony. Occasionally people of undoubted Anglo Saxon stock do so. I should have thought that an unfortunate propensity to deviate from the paths of honesty is something which occurs regardless of ethnicity. Judges are capable of dealing with it wherever it occurs, and from whatever source.

It would be unfortunate if his Honour were permitted to utter, with the apparent approval of his brethren, sentiments so markedly at variance with the United Nations’ Optional Protocol on Human Rights, not to mention Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination.

16 The Court here is faced with two very different cultures. There is no doubt that race, culture and linguistic ability all affect how a witness interprets, reports and records events. Ms Shelley was very involved with the Thai community and Dr Markhov had strong connections to the Bulgarian community. There was little evidence, expert or otherwise, about any particular proclivity of either the Thai or Bulgarian cultures.

17 Although the Court has made every effort to take into account the cultural sensitivities and way of living of each of the parties, such cultural sensitivity has to be applied within the legal framework of this country, and to that extent, cultural sensitivity cannot be an excuse for not applying the law.

18 Coupled with these difficulties the Court found some of the evidence confusing and at times considerably contradictory. It has been very difficult to piece together an accurate chronology of where and how these parties lived over the 14 years of their relationship.

19 At the outset it is useful to try to trace their living arrangements.

Yearly chronology showing the basic movements of the parties

20 Some time in 1991 the parties met at Edith Cowan University where both were undertaking classes to learn English. They met again towards the end of 1994. Ms Shelley asked Dr Markhov if she could store some of her belongings at his unit whilst she went on a holiday to Thailand.

1995

21 It is common ground that when Ms Shelley returned to Perth [in] January 1995 she moved into Dr Markhov’s home which was [in Suburb H]. She paid rent.

22 Some time in early to mid-1995 Ms Shelley purchased her own unit in the same complex as Dr Markhov. [Sentence omitted].

23 In July Dr Markhov says Ms Shelley moved into her own unit. Ms Shelley asserts Dr Markhov moved with her, or that they moved together between the two units. Dr Markhov says he moved to her unit in about September as he was conducting renovations on his own unit. He paid her rent. When the renovations were finished he rented his unit to tenants.

24 In November Dr Markhov purchased land [in Suburb Q]. He arranged to have a house built on the land. This was completed in about mid-1996.

25 From November 1995 to January 1996, Dr Markhov travelled to Bulgaria for holidays.

1996

26 When Dr Markhov returned from Bulgaria [in] January he returned to live in his own unit. Ms Shelley went to Thailand [in] January and returned [in early] February. Dr Markhov says Ms Shelley moved to his unit in March and rented out her own unit. Ms Shelley says she moved to his unit on his return from holiday. Whenever it was, she paid rent.

27 Around the time of her return to Australia in early February, Ms Shelley fell pregnant. [In] May she suffered a miscarriage. She alleges Dr Markhov was the father. He says he does not know who the father was.

28 The parties ceased to live in the same unit when Dr Markhov moved to his property at Suburb Q and Ms Shelley returned to her own unit at Suburb H.

Ms Shelley alleges that this occurred in early May. The parties disagree over the length of time they did not share common residence.

In any event, when the time they lived in different residences ended, the parties lived in Ms Shelley’s unit at Suburb H. Dr Markhov paid her rent.

31 In about January Dr Markhov sold his unit at Suburb H. On 29 April he purchased a property [in Suburb B]. He moved from Ms Shelley’s unit to [that property]. Either at the same time, or some time shortly after, Ms Shelley also moved there. She rented out her Suburb H unit and paid rent to Dr Markhov.

32 Dr Markhov was on holiday between 14 June and 23 June.

1998

33 The parties continued to live in [Suburb B] during 1998. At some time in 1998 or 1999 a Thai friend of Ms Shelley, [Ms Jattakorn] and her daughter, [Sara], lived with the parties for a period of about two months. Ms Jattakorn paid rent.

34 The parties each took holidays -Ms Shelley to Thailand from 4 to 13 June; Dr Markhov to Thailand from 4 to 11 June. Although they travelled separately they did meet and spend 2 days together in Thailand.

35 In late 1998 or early 1999 a mutual friend, Dr [Matthew Dimock], came to live at the Suburb B property. He paid rent.

1999

36 The parties and Dr Dimock lived at Suburb B during the first half of 1999. [In] May Ms Shelley purchased and then rented out the neighbouring property to [Dr Markhov’s Suburb B property].

37 On 14 July, Dr Markhov purchased a property [in Suburb C] with the intention of building a new dwelling on the land. In August building work commenced. The new house was completed in 2000. [Sentence omitted]

38 From 24 July to 15 August Ms Shelley visited her father in Thailand. As a result of his ill health, Ms Shelley applied for her father to visit her in Australia. Some time after her return, between August and October, Ms Shelley moved into her property at Suburb B. Some time following Ms Shelley’s move, Dr Dimock also moved to Ms Shelley’s Suburb B property. He paid rent.

39 In October, Ms Shelley decided to sell her unit at Suburb H and listed the property with an agent. The agent managed the sale and the rental of the unit pending sale. The unit subsequently sold in about September 2000. Ms Shelley did not return to live there prior to the sale.

40 Dr Markhov travelled overseas in December [1999] and returned on 6 January 2000.

2000

41 Early this year Ms Shelley’s application for her father to visit Australia was approved and he came to stay with her and Dr Dimock at her Suburb B property. Her father’s visit lasted from March to 11 June 2000.

42 After Ms Shelley’s father returned to Thailand in June, Dr Dimock also left Ms Shelley’s Suburb B property. Throughout this period Dr Markhov had been living next door.

43 In August, the building at Dr Markhov’s property at Suburb C reached practical completion. The exact timing is disputed, but between August and December 2000, Dr Markhov moved from his Suburb B property to the Suburb C property. Either at the same time or some time after, Ms Shelley moved from her Suburb B property to the Suburb C property. In any event, both parties were living at Suburb C by December. Ms Shelley’s house at Suburb B was rented from about November or December. She paid rent to Dr Markhov for [living at the Suburb C property].

44 In December both parties took holidays. On 7 December Dr Markhov went to Europe including Russia and on 13 December Ms Shelley went to Thailand.

2001

45 Both parties returned to the common residence at the Suburb C property after their respective travels; Dr Markhov on 7 January and Ms Shelley on 8 January.

46 During 2001, the parties continued to live at the Suburb C property. Ms Shelley travelled to Thailand from 1 to 31 August. After her return from Thailand, a Thai friend lived with the parties for a short time and paid rent.

47 Dr Markhov purchased further investment real estate at [two locations in Suburb C] during this year.

48 Dr Markhov travelled to Bulgaria from 29 November 2001 to 6 January 2002. When he returned he continued common residence with Ms Shelley at the Suburb C property.

50 From 1 to 29 November, Ms Shelley travelled to Thailand. From 9 December to 10 January 2003, Dr Markhov travelled to Bulgaria.

2003

51 During 2003 the parties continued living at the Suburb C property. Dr Markhov and Ms Shelley each made separate purchases of investment real estate in the same street, [in Suburb X].

52 From 3 October to 1 November Ms Shelley made a visit to Thailand. From 28 November to 4 January 2004 Dr Markhov made a visit to Bulgaria.

2004

53 In 2004, the parties continued living at the Suburb C property.

54 From 12 to 28 June, Ms Shelley visited Thailand. Upon her return to the country she ticked “no” on her passenger card in answer to the question whether she intended to remain in Australia for the next 12 months.

55 Ms Shelley gave written notice to Dr Markhov she would leave the Suburb C property by 30 October 2004. In about October or November 2004, Ms Shelley moved out of the Suburb C property to a rental property in [Suburb W], where she remained until February 2005.

56 From 28 November to 9 January 2005, Dr Markhov was in Bulgaria.

2005

57 Between 19 February to 5 March Ms Shelley visited Thailand. She says that her belongings were stored at the Suburb C property during her trip. Upon her return, Ms Shelley moved back to live at the Suburb C property and paid rent.

58 On 23 March, Dr Markhov’s mother died in Bulgaria. On that day he travelled to Bulgaria and remained there until 13 April. Ms Shelley travelled to Thailand in this period, returning on 16 April.

59 During 2004 and early 2005, Ms Shelley took steps to arrange nursing work in London. On 5 May Ms Shelley left Australia for London, stopping in Thailand for six days on the way. She lived and worked in London until December.

60 On 21 July Dr Markhov’s employment was terminated. Following this, Dr Markhov travelled in Europe for six weeks, from mid-August to early October. He

travelled to Sofia via London, and in doing so spent two or three nights with Ms Shelley in London. The parties also spent four days in Rome together on holiday. Ms Shelley then visited Dr Markhov in Sofia for two or three days. Dr Markhov also stopped in London on his return trip to Australia. Ms Shelley caught up with him at the airport.

62 Ms Shelley made trips to Thailand in April, May and August, each of about two weeks duration. Her father passed away in May after a long illness.

63 On 25 May, the parties purchased a property at [Suburb V] as tenants in common in equal shares. It was an investment. Each obtained separate loans to finance the purchase and provided security using other properties owned separately.

64 Ms Shelley again travelled to Thailand from 2 to 17 December. Dr Markhov visited Ms Shelley in Thailand for seven days when he travelled overseas from 9 December to 7 January 2007.

2007

65 During 2007, the parties continued living at the Suburb C property.

66 In April Ms Shelley’s nephew, [Thinnakorn Gunawan], came from Thailand to live with Ms Shelley for a short time. His parents accompanied him.

67 On 14 July Dr Markhov travelled to Bulgaria. On 15 July Ms Shelley travelled overseas, including to the United Kingdom. Dr Markhov booked return tickets on behalf of Ms Shelley for travel from London to Sofia. Ms Shelley later repaid Dr Markhov for the tickets. They spent time together and travelled together from 17 July for about 12 days, including a five day trip to Istanbul. Following this, Ms Shelley returned to London for a short time and Dr Markhov remained in Sofia. Both parties returned to Australia separately in August.

68 In October Mr Gunawan returned for another visit. It is likely his cousins and father accompanied him.

69 Ms Shelley gave her tenant at her Suburb B property a written notice of termination on the basis that relatives were coming to stay from Thailand for an extended period.

2008

70 In the first few months of 2008, Ms Shelley spent some funds repairing and improving her Suburb B property.

71 On 1 May Mr Gunawan again came to live at the Suburb C property. It appears that this time he was intending to stay in Australia long term in order to study. On 15 May, Ms Shelley and Dr Markhov entered a written agreement about the conditions on which her nephew would live at the Suburb C property. In a letter dated 28 May Dr Markhov expressed concern about the behaviour of Mr Gunawan.

72 Dr Markhov was overseas in the United States and the United Kingdom between 14 June and 24 July.

73 On 5 October Ms Shelley and her nephew moved to her Suburb B property. Ms Shelley asserts that this signalled the end of her de facto relationship with Dr Markhov.

2009

74 Ms Shelley was in Thailand from 5 January until 3 February.

75 On 4 February Ms Shelley met or became aware of Dr Markhov’s then future wife, [Tania Petrova].

76 Ms Shelley first saw solicitors in relation to property settlement on 4 March.

77 Dr Markhov married Ms Petrova on 2 August.

Indicia of a de facto relationship

78 With these movements as a backdrop it is important to consider the actual nature of the parties’ relationship over the years. There is considerable overlap between some of the indicators I will refer to.

• the length of the relationship between them;

79 In her application for final orders filed 26 March 2009, Ms Shelley says the parties began living together in early 1995 and finally separated on 5 October 2008. In his response to this application filed on 26 May 2009, Dr Markhov disputes these facts and states the parties did not live together.

80 The parties made their acquaintance in 1991. Dr Markhov’s case is that after the parties first met their relationship was simply one of friendship. It did not change in its nature until early 2009.

81 Ms Shelley says she and Dr Markhov commenced some sort of relationship in early 1995 which developed and endured until 5 October 2008. In cross-examination, Ms Shelley accepted that the relationship was simply in the nature of girlfriend/boyfriend in 1995 and 1996. She said that until the end of 1995, the couple were “special friends”. She said that in around 1997 they had a strong commitment. However, there were other parts of her evidence in which she said that in 1996 Dr Markhov was her partner.

82 In her trial affidavit she deposes that in the early part of their relationship she engaged Dr Markhov’s tax accountant, Mr Arno, to do her tax returns. She says:

215 The time I was introduced to Mr Arno the Respondent and I were girlfriend and boyfriend and we were going out together but I did not consider myself to be in a de facto relationship.

216 …

217 I did not register my status as de facto because at that time I did not consider myself to be in a de facto relationship.

83 As it transpired Ms Shelley did not engage Mr Arno until around the middle of 1997.

84 It is hard to pinpoint a time at which any de facto relationship is said to have started.

85 After 5 October 2008 both parties agree they continued to associate together on an amicable basis. It was not until early 2009 that a relationship, in any guise, ceased.

• whether the 2 persons have resided together;

86 Despite Dr Markhov’s definitive statement, “the parties did not live together” in his response to Ms Shelley’s application for final orders, it is clear that the parties frequently resided in the same residence. In the 14 years between early 1995 and October 2008 they often shared a home and operated a household together. They purchased properties in close proximity to each other and resided in each of these properties from time to time, often at the same time.

87 I am satisfied that over a 14 year period they spent a substantial amount of time living in the same household.

• the nature and extent of common residence;

88 I will firstly turn to the extent of any common residence between these parties over the 14 years Ms Shelley nominates as their relationship. I will then look at its nature.

89 It is common ground that for a considerable amount of that 14 years the parties shared living arrangements in their respective units and houses. Each owned a unit in Suburb H and a home in Suburb B. In the last eight or so years of their relationship they lived, in the main, at the Suburb C property. However, there are some distinct periods when the parties lived separately.

90 The parties agree there was a period in which they lived apart in 1996 at or about the time of Ms Shelley’s pregnancy and miscarriage. She alleges the separation only lasted three days and that Dr Markhov returned to live in her unit on the evening before or of her miscarriage on 5 May. Dr Markhov initially alleged that the parties lived in different residences for three months and this occurred after the miscarriage. In his cross-examination he said time apart was “definitely more than a week or two but maybe not three months.”

91 When Ms Shelley’s father came from Thailand to stay with her in Australia in 2000, she cared for him at her Suburb B property for about a three month period. Dr Markhov lived at his Suburb B property. Although Ms Shelley says the parties spent virtually every night together, it is clear that they used their own residences to base their separate activities. Dr Markhov disputes the extent of his contact with Ms Shelley over this period. He denies they spent every night together. Ms Shelley was nursing her very ill father. Dr Markhov disliked him intensely. Ms Shelley said Mr Markhov looked at her father as if he were an animal.

92 It is common ground the parties lived in different homes for a three month period in late 2004/early 2005 when Ms Shelley moved into a unit in Suburb W.

93 In 2005 Ms Shelley worked in London for an eight month period. She says that Dr Markhov encouraged her to travel and work there to improve her nursing experience. She says that they had daily telephone contact during this period, a fact hotly disputed by Dr Markhov. They spent time on holiday together for a relatively short period during the eight months despite the fact Dr Markhov was unemployed at the time and spent an extended period in Europe himself. Ms Shelley did not return directly to Perth after her work in London, but travelled to Thailand for a number of weeks.

94 Ms Shelley has said in her affidavit material and evidence that the parties did have other short periods of separation. Dr Markhov says there were longer more regular periods of time when they had nothing to do with each other. Save as specifically set out, the parties holidayed apart for up to five weeks at a time on an annual basis.

95 It is useful to consider the events leading up to what Ms Shelley has nominated as the date of separation in October 2008. She had rented her property in Suburb B to a tenant, [Sally Parsons]. Ms Parsons was in the property between 2003 and 2008. At the end of 2007 Ms Shelley gave Ms Parsons notice of termination of the lease. It is agreed that the reason given for such termination was that Dr Markhov would not allow Ms Shelley to have other people in his house. Ms Shelley had relatives coming in February 2008 to live and study for a prolonged period, perhaps permanently. She said to Ms Parsons she needed the house for their accommodation given Dr Markhov’s attitude.

96 Ms Parsons said that Ms Shelley had Dr Markhov confirm the reason for the giving of the notice of termination. Ms Shelley denies that Dr Markhov was involved and says that although she gave the stated reason to Ms Parsons, she was simply looking for an excuse to evict her. She called her the “tenant from hell”. However, at a later stage in her evidence she conceded that “I needed a house as my relationship with Mihail had turned sour”.

97 Ms Shelley conceded that in early 2008 she did some substantial improvements to her Suburb B property. She denied these improvements had anything to do with her moving into the property, but simply said it was repairing the damage done by “the tenant from hell”.

98 Despite her initial evidence that she did not intend to use her Suburb B property for other people, but simply sought to evict Ms Parsons, it is clear that in October 2008 she did move to her Suburb B property with her nephew, who remains in Australia studying. Her relationship with Dr Markhov had soured.

99 Like a lot of Ms Shelley’s evidence, I found it to be contradictory and confusing.

100 I now turn to the nature of any common residence they did have. It is not in dispute that for all of the periods of common residence each paid rent to the owner of whatever property was occupied from time to time. At times the arrangements were documented. The rent does not ever appear to have been a commercial rent, but it was paid religiously over the 14 year period. The parties split utility expenses. Adjustments to utility expenses were made for visitors or friends who stayed at the house. The arrangements for payment of rent by other tenants or visitors were similar to the arrangements between the parties. When Ms Shelley’s nephew came to live there was a documented agreement about what she would pay on her and her nephew’s behalf. Any arrangements were renegotiated from time to time.

101 The parties had a kitty for common food, but each purchased food he or she had a preference for. They bought their own toiletries and other personal requirements. Although it appears that generally the parties did their own housework, there is no dispute that from November 2002 Ms Shelley cleaned the house, washed the clothes and did the dishes. Ms Shelley asserts that she also did all the cooking. Dr Markhov said that the parties generally enjoyed different styles of food based on their respective country of origin. He commented that Ms Shelley very often bought take-away meals. He did not like these meals although he conceded he ate the leftovers. He denies he did not cook for himself.

102 Whilst Ms Shelley portrayed Dr Markhov as being unable to cook anything save for sausages, this is not consistent with the evidence of his former wife, Dr [Dina Markhova], his two children, some of his friends and a former girlfriend, Ms [Kirsty Boyle]. The evidence suggests that Dr Markhov cooked for his friends, both at parties and when they were guests at his house. However, the friends also recall Ms Shelley sometimes cooking Thai food if she was around.

103 It is clear that the parties shared meals involving the friends or family of the other. They attended some social events together with others. They visited mutual friends. Ms Shelley took Dr Markhov to the 2006 [formal event] arranged through [her employer]. However, it was a last minute invitation given a spare (and free) ticket became available unexpectedly. Dr Markhov took Ms Shelley to two annual celebrations to mark the National Day for Bulgaria.

104 In late 2006 the parties attended the wedding of a Thai friend of Ms Shelley. The friend deposes that her mother-in-law queried why Dr Markhov had been invited. She said she told her mother-in-law the parties were a couple.

105 In their rental situation they appear to have used the common property as and how they pleased. They entertained together and separately. Often there were two groups -one Thai and one Bulgarian -each speaking their own language. In the

Suburb C property there was a separate entrance for tenants, although Ms Shelley says she always used the front door.

106 There was considerable evidence about the sleeping arrangements -whether the parties shared a bed and, if so, in what circumstances. I will deal with the issue of a sexual relationship shortly, but here I simply address physical arrangements.

107 Initially in the Suburb H property of Dr Markhov, despite the fact that Ms Shelley said they immediately shared a double bed in the main bedroom, I am not persuaded that this is the case. I certainly accept they had sexual intercourse, but I also accept that they did not always share a bed or a bedroom.

108 During this period of time Dr Markhov’s younger daughter, [Melissa], born [date omitted] and then seven years old, would spend time with her father. Dr Markhova was unhappy about Melissa spending overnight periods with her father as he had rented out the spare room to Ms Shelley. She was specific in wanting Melissa to have her own room with a separate bed and with a desk for her homework. Given this was not available due to Ms Shelley’s tenancy she was reluctant for Melissa to spend overnight with her father on a regular basis. Despite this, Melissa did stay over, possibly on a monthly basis. I accept that when Melissa did stay over she slept, initially with her father, and as she got older on a couch or a mattress in the lounge room. Although I accept that Dr Markhova and her former husband are close friends, I did not form the view that Dr Markhova was likely to mislead the Court in relation to matters that touched on her daughters and their welfare. Ms Shelley denied Melissa stayed over at Dr Markhov’s Suburb H property.

109 Melissa said she rarely stayed overnight at Dr Markhov’s Suburb B property where the parties lived between 1997 and early 2000. She stopped staying over at all when she was about 13 years old and had other interests. At no stage did she witness her father and Ms Shelley in the same bed or bedroom. She said she had little to do with Ms Shelley. Ms Shelley says Melissa only ever stayed over on one occasion and that was in Suburb B. I do not accept this to be the case.

110 Ms Shelley says that the parties slept together every night when they lived at Dr Markhov’s Suburb B property. Dr Markhov disputes this. Although I accept they may have shared a bedroom from time to time, I do not accept that they were together every night. I find that Ms Shelley did use another bedroom. Again, when she moved to her own Suburb B property to look after her father, she said that the couple slept together every night. This then changed to “almost” every night. Dr Markhov denies this. Given she was caring for her very sick father as his nurse I have difficulty accepting her proposition. It is common ground her father and Dr Markhov did not get on together at all. This is not to say they did not continue some form of sexual relationship, but I do not accept they slept together as a couple every night or even almost every night.

111 One witness relied upon by Ms Shelley was Dr Dimock. He spent an extended period of time with the parties at Dr Markhov’s Suburb B property and subsequently moved with Ms Shelley and her father to her Suburb B property. Dr Dimock was a dental surgeon who had employed [Alexis Markhova], Dr Markhov’s older daughter in his dental clinic. He became friends with Dr Markhov and, thereafter, Ms Shelley.

He filed a brief affidavit. Despite considerable opportunity to observe these parties he simply deposed, relevantly:

10 The whole time that I have known them I consider the applicant and the respondent, until their separation, to be a couple who socialised together and presented themselves as a couple in a loving relationship.

112 Dr Dimock was not available for cross-examination. Counsel for Dr Markhov was content for his affidavit to be received by the Court, unchallenged given what appeared to be an equivocal view of this relationship. Counsel for Ms Shelley did want to lead some additional evidence from Dr Dimock. I allowed him the opportunity. He was able to obtain a further brief statement from Dr Dimock.

113 Again, the additional statement is, without more, equivocal. The most support it lends for Ms Shelley is that Dr Dimock says he “never observed (Ms Shelley) sleep in the other little bedroom; I was there overnight. Often if (Dr Markhov) was not there, I would see her on the bed -I would see her there in the main bedroom and I would talk to her there.”

114 Dr Dimock was not available for cross-examination and the additional statement was tendered to the Court by consent.

115 Whilst Ms Shelley said the parties always shared a bedroom at the Suburb C property, Dr Markhov denied this. He said that when Ms Shelley moved into Suburb C property in mid to late 2000, she occupied a second bedroom and utilised a bathroom adjacent to that area. He had occupied the main bedroom which included an ensuite.

116 Some visitors to the house, called on behalf of Dr Markhov, said they saw women’s toiletries in the second bathroom and women’s clothes in the second bedroom. I was asked to draw an inference on the basis of this evidence that this is where Ms Shelley slept. I am not prepared to draw such an inference on this evidence alone. By itself it is equivocal.

117 However, Mr Gunawan gave evidence about the living arrangements at the Suburb C property during the periods of time he was in the same house as the parties. Mr Gunawan was born on [date omitted]. He came to Australia in April 2007 with his parents as a 15 year old student. He returned in October 2007 when he came with his father and two other family members. He swore an affidavit for the trial. He gave evidence accompanied by a translator. I find he tried his best to provide the Court with an accurate recall of the circumstances about the parties living arrangements. However, I do not find that his evidence was always reliable. He had difficulty in recollecting some sequences of events. In his affidavit he said that in 2007 when he had first come to Australia, Ms Shelley slept with Dr Markhov. He said that changed in 2008 when she slept in the second bedroom. However, he also explained in his cross-examination that Ms Shelley slept in the main bedroom with Dr Markhov in 2007 when his family was there in order to provide them with two bedrooms. He identified the second bedroom at the Suburb C property as being her bedroom which she used when his wider family was not there. This was inconsistent with Ms Shelley evidence. I accept Mr Gunawan’s evidence in this regard.

118 I am satisfied that there were times when the parties did share a bedroom. This was to have sexual relations and also as a matter of convenience when visitors or family occupied the bedrooms. I am also sure they did so on other occasions simply to be together. I am equally satisfied that on other occasions they slept separately. I find Ms Shelley did use the second bedroom and bathroom for her clothes and personal items. I find she slept there. Despite this, she was on good terms with Dr Markhov and they often had sex.

• whether there is, or has been, a sexual relationship between them;

119 In his trial affidavit sworn 22 February 2011 Dr Markhov deposed:

Absence of a sexual relationship

94. The applicant and I have not had a sexual relationship at any time.

…

147. We have never dated, courted, shown any interest in each other sexually or otherwise…

120 On 7 November 2011 Dr Markhov’s solicitors wrote to Ms Shelley’s solicitors in the following terms:

In order to avoid any misunderstanding regarding the evidence our client gives in paragraph 94 and 147 of trial affidavit, our client has instructed us to correct an impression that may have been given that he has not had sexual intercourse with your client.

Our client instructs us that whilst he didn’t, in his view, have a sexual relationship with your client, nor did he have any interest in your client sexually, he has on occasions had intercourse with her.

121 The original trial which was due to start on 17 November 2011 was unfortunately adjourned.

122 In cross-examination, when the trial did commence, Dr Markhov was far more fulsome in explaining his position. He accepted that in most of the residences in which the parties lived at the same time and during holiday periods they had sexual intercourse. He was keen to point out that he had “needs” and that this was also the position of Ms Shelley. He said the parties continued to have sex even after October 2008.

123 Ms Shelley, at the other end of the spectrum, was keen to persuade the Court that the parties had sex on a daily basis, at least up until late 2007. She said initially it was two to three times daily and they “always” had it. This, she said, formed part of their mutually loving and committed relationship. I have no difficulty finding she, at the very least, exaggerated.

124 When it suited his purpose Dr Markhov would adopt a strict interpretation of words. I do not accept it was merely a cultural trait. To his credit, it was not put by his counsel as such. To admit having frequent sex with a person over a period spanning 14 years and yet depose to not having either any interest in her sexually or not engaging in a sexual relationship is misleading in the extreme.

125 In his evidence Dr Markhov said he used or explained specific events for a specific purpose. When he was asked why he had not put certain other events in his trial affidavit he said he had tried to prepare the affidavit to show he was not in a de facto relationship.

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

126 It is common ground the parties maintained their own finances. Without exception, each appears to have been responsible for personal upkeep and maintenance. They did not acquire chattels or furnishings jointly. If, for example, Dr Markhov bought an airfare or booked accommodation for himself and Ms Shelley, he was later reimbursed by her. Ms Shelley said Dr Markhov had bought her things, although with some probing, it is clear that the cost of any such purchases were repaid to him. Even when the parties ate out or had coffee, it seems they always paid for what each consumed.

127 Ms Shelley said that there were discussions between her and Dr Markhov about purchasing a TAB agency to run in their retirement. She said it was to be a joint venture to enable them to take holidays together. The TAB agency could be run by other people so she and Dr Markhov could travel. Her friend, Ms [Pichitra Jetjirawat], gave evidence that Dr Markhov had made enquiries on behalf of himself and Ms Shelley in relation to a TAB agency. Dr Markhov accepts he spoke to Ms Jetjirawat, but says he also spoke to the WA President of the TAB and others involved in TAB establishments. He signed a contract to purchase an agency in his own name in conjunction with a Chinese couple. However, the Chinese couple withdrew and he was reimbursed his deposit. He proceeded no further. He denies his plans included Ms Shelley. He says she was in London at the time. Dr Markhov says he attended retirement seminars by himself.

128 In terms of daily life and the running of a household there was an unusually strict accounting between the parties in relation to utility and other expenses. At times these were documented.

129 Whilst Ms Shelley categorised Dr Markhov as “mean” in the manner in which he divided certain household utility expenses, it is clear that this is the manner in which the parties operated throughout the entirety of their relationship. Ms Shelley said that Dr Markhov did not want to have any involvement with her in money matters.

130 There is really no dispute there was no financial intermingling, dependence or support over the course of their entire relationship.

• the ownership, use and acquisition of their property (including property they own individually);

The parties purchased the following properties:

131 The parties funded the purchase of their separate property without any reference to the other. In 1995 when Ms Shelley applied for a grant of money pursuant to the first home buyer’s assistance scheme to purchase the unit at Suburb H, she did so on the basis she was not in a de facto relationship. Although they discussed their investment potential and they each may have been involved in viewing the properties, the financial aspects of any acquisition were conducted entirely separately.

132 The property at Suburb V was acquired as tenants in common in equal shares. The property at Suburb V was acquired as a business venture and, again, the half share of each for its acquisition was completely separately funded. Any payments made thereafter to the property were always split equally.

• the degree of mutual commitment by them to a shared life;

133 The trial was filled with occurrences about which one party would argue showed a mutual commitment to a shared life, and which, with equal vigour, the other party would argue showed nothing of the sort. I will deal with those I consider to be the most relevant and least equivocal examples.

-holiday periods

134 Unsurprisingly, over the 14 years of this disputed relationship, each party had holiday times on at least an annual basis. The majority of their holidays were taken separately.

135 In the early years and, generally with other people, the parties made some short holiday trips together within the State. For example, they went to [country town D] with a friend, Mr [H] and his girlfriend. They stayed in a tent together in a caravan park. They also made a visit to the [Y] River with Dr Dimock, where Ms Shelley said they shared a bed. Dr Markhov denies this and says Melissa was with them and they did not share a bed. Whilst Dr Markhov accepted that the parties took these trips and occasionally shared a bed, the tenor of his evidence was that the sharing of a bed on these occasions was more a convenience to save money on accommodation, or else a lack of other appropriate accommodation. He says it was not indicative of a commitment of any kind.

136 On one occasion Ms Shelley said they flew to Sydney at the same time for a period of a week. It was a work related trip for Dr Markhov. However, they flew in different planes. One travelled by Ansett and the other travelled by Qantas. Ms Shelley said Dr Markhov would only travel using frequent flyer points and would never pay for her.

137 The parties routinely travelled overseas on an annual basis. They did so separately. They did not appear to discuss the plans or dates for their respective trips or how funds would be allocated for the trips.

138 Ms Shelley would visit her family in Thailand. Over a number of years, until his death, she regularly visited her sick father. Her father did not like Dr Markhov and the feeling was returned. She went to Thailand on about 19 occasions between 1994 and 2008. Dr Markhov did make one or two trips to her village in Thailand. The parties did not go on the same aeroplane. In 1998 both parties travelled to Thailand at about the same time for seven and nine days respectively. During that time they only spent a weekend together.

139 In December 2006 Dr Markhov spent one week in Thailand. He was overseas for 28 days in total and Ms Shelley was in Thailand for 14 days.

140 Again, the tenor of Dr Markhov’s evidence is that such visits were consistent with a friendship, rather than a committed relationship. He was interested in her origins and in visiting Thailand.

141 In the same time frame Dr Markhov also had trips on approximately 12 occasions. His trips were mainly to Bulgaria and Russia. He says his return was to see his family and to source a bride. He would source appropriate partners when he was away. Ms Shelley visited Bulgaria with Dr Markhov on about two occasions. Firstly, in 2005 when she was working in London, Dr Markhov holidayed in Europe for some 42 days. Ms Shelley spent approximately 11 days (not in one period) with him. Some of that was in Bulgaria. Again, in 2007 she spent some time with him travelling in Eastern Europe. It was for a short period of her total holiday on that occasion.

142 Ms Shelley advanced a number of reasons for the parties not taking holidays at the same time and place. She said that she did not travel with Dr Markhov because she had to care for his rental properties in Australia. As it transpired, most of his rental payments went directly into his bank account. Dr Markhov said he had Alexis manage the properties in his stead if there was a need. Ms Shelley also said that Dr Markhov would look after her property. However, it is clear that for a period between about 1999 and early 2001, she had engaged an agent to manage her property. Despite the fact she said it was only an experiment which did not work, there was a mechanism available to her to ensure properties were looked after over holiday periods should she have wanted to avail herself of it. There was no suggestion her relationship with Alexis was such she could ask her to take on that task.

143 Ms Shelley also proffered having to work as a reason for not travelling with Dr Markhov. She then said that it was simply the way they organised their lives. She wanted to go mostly to Thailand and he wanted to go mostly to Bulgaria.

144 What she says that is common ground is that on almost every occasion they travelled each took the other to and from the Perth International Airport.

145 -Relationships with other people

146 Dr Markhov deposes:

95. During the period that the applicant claims we were in a de facto relationship, namely 1994 to 2008, I have had a number of sexual partners and relationships which were not only know to the applicant, who was trying to help me in this respect by introducing me to suitable, in her opinion, women, but also to my friends and family, who too did their best, as the applicant, to help me find a partner.

147 Dr Markhova said that throughout the relationship, Ms Shelley was actively helping her former husband to find a partner. This included introducing him to other Thai women. She said that Ms Shelley openly spoke about this in her presence.

148 Dr Markhova also said that during a gathering at Dr Markhov’s house, Ms Shelley had mentioned that in 2001 Dr Markhov had forgotten to take a list of the contact details of Bulgarian and Russian women whom he intended to meet whilst holidaying in Europe. Ms Shelley had dictated the list to Dr Markhov over the telephone whilst he was in Moscow. She said Ms Shelley joked about how disorganised Dr Markhov was and that he even forgot to take his list of women.

149 Dr Markhova said she was aware that Dr Markhov was looking for a new long-term partner from a similar cultural background. She also recalls that when he and she were in Bulgaria, at the same time, visiting family and friends, she was aware that he was meeting women and generally looking for a partner. Dr Markhova recalls her former husband leaving a meeting with her in Bulgaria early so he could go and meet a “potential”.

150 Dr Markhova said that whenever her former husband spoke to her about Ms Shelley, it was not about any relationship issues but simply in the context of a general discussion. She said he did not discuss anything of any emotional substance in relation to Ms Shelley. In contrast, she recalls Dr Markhov immediately introducing his present wife to her. Dr Markhov sought her opinion and was very open in discussing with her that he wanted to have a long-term relationship with his present wife.

151 Alexis recalls her father telling her he would like to find a new partner. She said this comment was made on a regular basis, including in the presence of other people and Ms Shelley. In 2001/2002 she was introduced to a Bulgarian lady whilst she was holidaying in Bulgaria at the same time as her father. Her father had confided that he was hopeful of developing a relationship with this woman. Alexis spent time with this woman and her daughter on a number of occasions. She said the relationship between the woman and her father did not develop further.

152 She recalls her father putting advertisements in Bulgarian newspapers seeking a partner and thereafter answering the telephone from ladies responding to the advertisement. She said there was never any indication as far as she saw that Ms Shelley was a candidate for her father’s affections.

153 Even taking into account the relationship between Dr Markhov, his former wife and children, I was satisfied that there was no real contradictory evidence, and which I accept, of his preoccupation with a potential partner apart from Ms Shelley’s general denials. When Dr Markhov and his family were challenged on some aspects of the evidence, I was satisfied with their answers and generally found their evidence to be credible. I find Ms Shelley was aware of Dr Markhov’s attempts to find other women.

154 Not only does Dr Markhov say he was actively seeking a life partner, the evidence at trial suggests that at least from time to time he made sexual advances to some of Ms Shelley’s friends. Ms Jattakorn stayed with the parties for a couple of months in 1998 or 1999. On one occasion she was showering and Dr Markhov entered the closed bathroom. When challenged by Ms Jattakorn he said he had simply come in to collect some towels. Ms Jattakorn was most upset at his action and let him know this. She attacked his bona fides in entering the closed bathroom in those circumstances. Ms Jattakorn left the home to reside elsewhere. Ms Shelley accepts in hindsight that Ms Jattakorn’s version of events was correct.

155 Dr Markhov accepts that he had entered the bathroom in those circumstances, but it is unclear whether he accepts he had an improper intent.

156 Another friend of Ms Shelley, [Napala Southern], came to spend time with the parties in 2007. She deposes to having various excursions with the parties. She alleges that on one occasion when the three of them were in the car Ms Shelley fell asleep in the front passenger seat. Dr Markhov turned to her in the back seat and inappropriately placed his hand on her leg and rubbed it. Ms Southern said it was a sexual advance. She did not tell Ms Shelley about the incident at the time, although she did make a complaint to the police in April 2009. Dr Markhov admits the act, but said it was “not nasty”.

157 There was an attempt by Dr Markhov to suggest that Ms Shelley had been in other relationships. I found the evidence in this regard to be half-hearted and unconvincing. It is not to say that Ms Shelley did not have male friendships, but I am far from satisfied that she had sexual relations with other people on a regular basis, if at all.

-contemporaneous documents

158 It is of use to examine written records that were created during the course of the 14 years, and in which the parties had an opportunity to nominate the other as a person with whom they had a significant relationship.

159 Despite the fact that from approximately the middle of 1997 the parties shared a tax accountant, on no occasion did either ever identify the other as a spouse in any of their taxation records or instructions to their accountant.

160 On 22 August 2000 [a firm of] solicitors corresponded with Ms Shelley about a settlement conference for a motor vehicle accident claim she was pursuing. [The solicitor] sets out the date of the conference, and strongly recommends that Ms Shelley bring a member of her family or a close and trusted friend with her so that she would be in a position to make “far reaching financial decisions”. Ms Shelley did not attend with Dr Markhov.

161 The Court was provided with some immigration documents completed by Ms Shelley on her arrival into Australia after periods of time abroad. They show as follows:

28 June 2004 -emergency contact [Simon Warrick]

Ms Shelley ticks “no” to question of whether she intends to remain in Australia in the next 12 months

5 March 2005 – emergency contact Dr Markhov

16 April 2005 -emergency contact [Ms A]

7 January 2006 -emergency contact Pichitra Jetjirawat

27 May 2006 -emergency contact Dr Markhov

20 August 2006 – emergency contact Pichitra Jetjirawat

162 When asked why she had not consistently nominated Dr Markhov as her emergency contact, Ms Shelley said she thought that an emergency contact was simply just a friend. She said that sometimes she nominated the person she sat next to on the plane. Simon Warrick was an elderly gentleman who cared for her cat and travelled with her on one occasion. She said that although she did on occasions nominate Dr Markhov “sometimes I nominated another friend”. Dr Markhov was the only one of those nominated who shared a common residence with her.

163 It was put to her that on 28 June 2004 she noted in her incoming passenger card that she did not intend to remain in Australia in the next 12 months. She admitted she had hoped to go to London to work in 2005, but that was not the reason she ticked

‘no’. She said it was simply a mistake and simply a coincidence that she actually did travel to London the following year.

164 There were times when it was difficult to understand whether Ms Shelley suffered from a poor memory, she was reconstructing matters after the event or she simply strayed from the truth. In any event, I found her a less than reliable historian.

165 In 2004 when Dr Markhov returned to Australia from a holiday abroad, he had some difficulties with immigration. Some undeclared food items were discovered by customs. Although Ms Shelley was at the airport to collect him, and made a short written statement about the fact his luggage appeared to have been unpacked, it was Dr Markhova who made a written statement directly in relation to the legal issues about which he was confronted. She assisted him throughout what appears to have been an unpleasant and lengthy legal battle, culminating in an appeal to the Supreme Court. Dr Markhov said he discussed the issues with Dr Markhova and Alexis. He did not include Ms Shelley.

166 Ms Shelley was adamant that during the eight months she spent in London in 2005, Dr Markhov telephoned her on a daily basis. However, Dr Markhov produced telephone records for that period. The records show that the telephone contact was sporadic at best. Ms Shelley accepted that in one nursing home in which she resided, there were no telephone facilities. She said she would use a public telephone near an underground station to make her own calls. She says that when she did have telephone facilities, Dr Markhov would ring her utilising a prepaid phone card which would not show up on his telephone records. I find Ms Shelley has greatly exaggerated the telephone contact over that period.

-The nature of their sexual relationship.

167 Ms Shelley has maintained that the parties were in a exclusive sexual relationship throughout the 14 years. She says that she only found out that Dr Markhov had other interests of a sexual nature after they separated.

168 Dr Markhov says he had many relationships between 1995 and 2008.

169 Dr Markhov says that initially in Suburb H he tried to reconcile with his former wife. After a while he looked elsewhere, given Dr Markhova was not interested. He continued to treat Dr Markhova as his best friend and confidante. He turned to her for help.

170 Dr Markhov says that he had a girlfriend when Ms Shelley moved into his Suburb H unit. He said he had some girlfriends throughout the time they shared common residence and Ms Shelley was aware of this. When asked why these girlfriends had not been called to give evidence he said he had tried but, given the time lapse, it had not been possible to locate them. He did, however, produce two witnesses.

171 Kirsty Boyle swore an affidavit and gave evidence at trial. She said she saw a profile of Dr Markhov on the internet dating site, RSVP, between 2002 and 2004. They had an exchange of emails and first met face to face in what she estimates to be

late 2004. They played tennis together at [a] Tennis Club when Ms Boyle was a member. They dined at a restaurant and went rock ‘n’ roll dancing on two occasions. Dr Markhov invited her to his house where he cooked her dinner.

172 Dr Markhov advised her that he had a house-mate.

173 Ms Shelley denies any knowledge of Ms Boyle. One explanation is that this was during a time she had separated from Dr Markhov and was living in a unit in Suburb

W. However, her evidence is she saw Dr Markhov every day during the Suburb W separation and most nights as well. This runs counter with his spending time with Ms Boyle. However, it is not impossible.

174 [Misha Valenska] met Dr Markhov “chatting on the internet”. She first met him in May 2008. She says they saw each other for approximately six months on a weekly basis. They went to restaurants and cafes and stayed overnight at each other’s houses on occasions. She recalls meeting a young Thai man when visiting the Suburb C property on one occasion in May 2008. Mr Gunawan recalls meeting an unidentified lady in a black dress with blonde hair.

175 Ms Valenska deposes:

On another occasion that I stayed overnight at Mihail’s house in the morning I went into the kitchen and met a Thai lady who Mihail introduced as the lady that had been renting a room at his house for some time.

This lady, whose name I cannot remember, did not show any surprise in seeing me and was friendly towards me.

176 At trial she said this meeting was after Dr Markhov had returned from holidaying in Bulgaria in July 2008. Ms Shelley denies any such meeting.

177 At trial Ms Valenska was no longer involved with Dr Markhov. It is hard to reconcile Ms Shelley’s adamant denial of meeting or having any knowledge of Ms Valenska with Ms Valenska’s own evidence. I note that Ms Shelley says that during 2008, her relationship with Dr Markhov was less than ideal given his keen interest in using the internet to access dating sites. She also worked some shift work over that period.

178 When Dr Markhov first located Ms Valenska to give evidence, she provided him with a draft statement. The statement did not include any mention of Ms Shelley. Her subsequent affidavit did. She said her first draft had been done quickly. She had not remembered the Thai lady at the time. It had been a quick encounter in the kitchen when she had wanted a drink of water before leaving the house at Suburb C one morning to go to work. She later recalled the meeting and included it.

179 Ms Valenska presented as a credible witness with no motive or reason to mislead. I do not find the initial failure to include the meeting with Ms Shelley as an indicator of lack of credibility. Without more, it simply says she did not remember everything at once.

180 Although Ms Shelley tried to distance herself from any knowledge of Dr Markhov’s desire to re-partner, she deposes in her trial affidavit that during their time together she bought a laptop computer on which Dr Markhov communicated with a dating site. She says that he told her that “he was only chatting and it meant nothing”.

181 At trial Ms Shelley said that from time to time and especially late in the relationship – 2007 and 2008, Dr Markhov would spend extensive periods of time on the internet. She said it had started in 2000 at Dr Markhov’s Suburb B property. She was aware that he was chatting and looking at women on dating sites. They were of Eastern European origin. However, he always reassured her that she was real and the others were not. She was not happy with his behaviour because it involved him coming to bed very late and ignoring her when she was at home. Dr Markhov agreed he did this. He said he would have a full screen of women on display. He and Ms Shelley would discuss the women. He said he would document their height and weight as he was looking for a compatible partner. He said because of the time difference between Russia and Perth he would need stay up late so he could chat with them.

182 There was considerable evidence given about a list of names and telephone numbers which Dr Markhov said reflected potential partners for him. I have referred to this briefly earlier in the judgment. These were Russian or Bulgarian women. The list was kept near the telephone at the Suburb C property. It is common ground the list was not hidden. When Dr Markhov went on holiday to Russia in early 2001, he says he forgot to take his list. He rang Ms Shelley and asked her to dictate the names and telephone numbers to him. His evidence and that of Dr Markhova referred to previously is that such a list was dictated by her over the telephone.

183 Ms Shelley agrees she was asked to do this, but she said when she located the list she saw that it contained women’s names, and she refused to give them to Dr Markhov. She asked about the list and he said it was to do with “business”. Ms Shelley said she got angry and did not give him the numbers. Her evidence was vague and contradictory on this issue. It runs counter to that of Dr Markhov and Dr Markhova, who I found to be more credible.

184 Dr Markhov also says that after October 2008, uninvited, Ms Shelley provided him with the name of a potential partner.

185 An email was produced dated 9 December 2008. This was sent to Ms Shelley from some friends of hers with the message “Hi Kanya. Here is the information you required. Her name is – [Olena B], aged 39 years. Her email address [omitted]”. This email was forwarded to Dr Markhov by Ms Shelley. Dr Markhov replies thanking Ms Shelley for his “potentially future wife”. He says her family name is not Russian, but that he might contact her anyway.

186 Ms Shelley said she could not remember the circumstances of the email. She then said that perhaps Dr Markhov had asked her for it. I am not satisfied that this is the case given the initial content of the message to her by her friends.

187 Dr Markhov says that there was never any expectation of fidelity between the parties. He says Ms Shelley was aware he was searching for what he considered to be a culturally compatible partner. He says his dating of others was not covert.

188 One other matter to be considered is Ms Shelley’s move to Suburb W in 2004. In June 2004, Ms Shelley had marked on her incoming passenger card that she was not intending to remain in Australia in the next 12 months. She had also nominated a Mr Warrick as her emergency contact. The parties were living at the Suburb C property.

189 Ms Shelley gave Dr Markhov a “Notice of Termination of Tenancy”. The signed notice is dated 30 October 2004. It sets out Ms Shelley’s intention to vacate the property at Suburb C by 30 October 2004. Ms Shelley firstly said that she moved to Suburb W on 30 October because the couple had “a big argument” about Dr Markhov demanding sex from her. She said she refused him sex and she was then bullied by him. She then expanded on this and said that he was sarcastic to her and did not speak to her for two weeks. She said it was then she decided to move out and rent a unit in Suburb W.

190 Ms Shelley was adamant that they had a fight on 30 October 2004. That was the day she provided the notice and that was the day she moved. She said it was a mistake that the word by was used and it should have been on. However, it is consistent with the evidence that the argument and the move happened at different times.

191 Although I accept there was an argument and it may well have been about sex, Ms Shelley’s move was also likely to have been related to practical arrangements for her London work stint the following year. However, the lease expired before she had work in London and she simply moved back to the Suburb C property.

192 Dr Markhov says Ms Shelley simply moved out. He had no concerns as she was free to do as she pleased. Ms Shelley said that Dr Markhov had assisted her in the move to Suburb W. He was very friendly about it. There was no animosity. They continued on as before.

• whether they care for and support children;

193 There is little evidence that I accept to show that Ms Shelley was involved in the care of or support of Dr Markhov’s children, Melissa and Alexis. I have detailed Melissa’s contact with her father commencing in 1995 when she was 7 years of age. At that time Alexis was 17 years of age. She had left home and lived in a flat close to both her parents. She did not stay overnight with her father, but visited him on a regular basis.

194 Both children recall Ms Shelley, but gave no evidence to suggest they had any relationship with her other than as a tenant and friend of their father. They accepted they may have spent some social time with Ms Shelley, but this was with other people and even Ms Shelley did not suggest that she was viewed as their step-mother. Ms [Molly Ciccone] gave evidence for Ms Shelley. She was an elderly lady who resided [in the same block of flats as the parties when they lived in Suburb H]. Ms Ciccone said that she “always saw Ms Shelley going out together with the respondent’s daughter”. Given the frequency with which the children visited their

father, I cannot accept that it was something that “always” happened. I have no doubt there were occasions when Ms Shelley was involved in activities with the children, but it was not a regular occurrence and there was no relationship between them.

-her pregnancy

195 Ms Shelley says that Dr Markhov was always strongly opposed to the concept of her pregnancy and them having a child together. She said that he was against her having any operation to enlarge her fallopian tubes to facilitate her falling pregnant. However, without any real or credible explanation as to why, she said that after her miscarriage and her desire to go her own way, Dr Markhov’s attitude to all this changed. He had said that if there was to be a baby it would need a room as a nursery. According to Ms Shelley, this would be possible at his Suburb B property. She felt that if she did get pregnant she could force Dr Markhov to make a nursery in that home. Thus, she moved to live with him there.

196 Dr Markhov denies any such discussions of babies and marriage.

• the reputation, and public aspects, of the relationship between them.

197 Dr Markhov was employed by a company called [name omitted] at the time the parties started sharing the common residence at Suburb H. He was employed there as the General Manager between 1995 and July 2005. Both he and his former employer, Mr [Dennis Lister], gave evidence about the various work related social functions the firm held over that 10 year period. Ms Shelley agrees that she never went to a single work function with Dr Markhov. She was never asked. They were held on a regular basis and included family and friends. Dr Markhov would attend these functions by himself. Ms Shelley was never formally introduced to Mr Lister.

198 There was a striking contrast between the evidence of Dr Markhov’s friends and the evidence of Ms Shelley’s friends. According to Dr Markhov’s family and friends, the parties did not act in an affectionate or committed manner towards each other.

199 Melissa was asked in her cross-examination if she would be surprised if told her father and Ms Shelley had a sexual relationship and they had shared outward signs of affection commensurate with being a couple. She said, yes, she would be surprised.

200 Mr D’Orsay, a former partner of Dr Markhova and a friend of the parties, had spent a reasonable amount of time with them, both before and after 5 October 2008. He was called by Dr Markhov. He denied he had any idea at all the couple had a sexual relationship until he gave evidence at trial and was then told.

201 On the contrary, Ms Shelley’s friends said they believed the parties to be a couple. They were affectionate and shared a bedroom. Some said Dr Markhov also discussed his sex life involving Ms Shelley with them.

202 Ms Jetjirawat had known Ms Shelley for 19 years. She said she saw the parties about once a month during the 14 years that Ms Shelley says they were in a relationship. She said she first met Dr Markhov in 1995 when he was introduced to

her by Ms Shelley as her new boyfriend. She said that when she became aware Ms Shelley was pregnant she congratulated Dr Markhov and he smiled.

203 Ms Jetjirawat says she had seen an exchange of physical affection between the parties. They had attended Thai functions together. She said that when Ms Shelley was in London, Dr Markhov spoke to her about the acquisition of a TAB agency. He had said that it was so he and Ms Shelley could work together and take holidays together.

204 Another witness, [Walter Johnson], swore an affidavit in support of Ms Shelley which had at its heart statements to suggest this couple was in a de facto relationship. He had said they shared one bed. When challenged in cross-examination, he accepted that he had made assumptions based on what he had seen rather than simply reporting factual matters. However, he had gained, at the very least, an impression the parties were a couple.

205 [Walter Posner] called by Ms Shelley had attended a personal development meeting at the Suburb C property with the parties and other people. He said he had a specific recall that when Dr Markhov was asked how he could improve his life, he advanced two ideas. Firstly, he wished to improve his tennis stroke and secondly that he “wanted to make better love to (Ms Shelley)”.

206 Mr D’Orsay called on behalf of Dr Markhov and who had attended the same meeting denies that the latter comment was said. He accepts there was the comment about a tennis stroke. Both these witnesses presented credibly.

207 It is hard to distinguish between all of these witnesses in terms of their credibility. On the face of it most appeared to be trying their very best to give an accurate recall. There were some clear differences in recall of words said and events that happened. I take into account the closeness they have to each of the parties and their desire to assist that party. They give evidence that supports the impression each of the parties is trying to create for the Court.

208 I find it likely that Dr Markhov was prepared to show some affection or closeness to Ms Shelley in the presence of her friends. However, he maintained a more distant relationship with her when his family and friends were present. Ms Shelley seems to have just gone along with it all.

209 Each party sought to rely upon photographs to show the parties were either in an affectionate relationship or else Ms Shelley was in an affectionate relationship with other people. I found all the photographs to be equivocal. In the main, they were simply “happy snaps” taken on social occasions or holidays. They were all staged to that extent. They were consistent with a friendly relationship, or a girlfriend/boyfriend relationship. However, they are simply one dimensional moments in time. I am unable to discern anything of substance from them.

210 It is common ground the parties did not celebrate anniversaries of any sort, including Valentine’s Day. They did not embark on any of the rituals or trappings generally associated with an ongoing affectionate couples’ relationship.

211 On 10 October 2007 Dr Markhov took Mr Gunawan to [a] Public Library. Mr Gunawan was issued with a junior member’s internet access card. Dr Markhov signed the card as the “parent/guardian” of Mr Gunawan. He certified that Mr Gunawan had his permission to access the internet at [the library]. When questioned why he presented himself in such a role, he said he understood guardian to mean a friend or a neighbour. I am not sure this is true but I do accept he is likely to have wanted Mr Gunawan out of the house as he did not seem to get on with him.

212 Dr Markhov placed great importance on the fact that the relationship between the parties did not change in its nature in any way over time. There was no courtship or romance. There was no breakup. It started as a friendship and remained that way. He says that Ms Shelley was free to come and go as she pleased from any of the properties in which they shared common residence. He says that when she moved to Suburb W he helped her move her furniture and belongings. He said it was done on a friendly basis. Ms Shelley agrees with this despite she said it was a “separation” after conflict. Again, in relation to all the other moves including the move on October 2008 the parties were kindly disposed towards each other. Mr Gunawan confirmed both Dr Markhov’s assistance in the October 2008 move and the continuing friendly relationship between Dr Markhov and Ms Shelley thereafter. Nothing changed until early 2009.

213 After the date nominated by Ms Shelley as the separation, the parties also continued to mix together socially. It appears they continued to have sex. On 23 October 2008, Ms Shelley had a birthday party/house warming at her Suburb B property. Dr Markhov, his daughters and former wife were invited. They said Ms Shelley was very happy at that event.

214 In December 2008, the parties, Dr Markhova and Mr D’Orsay went on a trip to country town D together. Although Ms Shelley denied Mr D’Orsay was there, I find it likely that he was part of the excursion. Again, there is no evidence to suggest that the presentation of the parties was anything different from what it had been prior to 5 October 2008.

215 It was only when Ms Shelley became aware that Dr Markhov was serious about his new relationship that she became angry with him and the relationship soured.

Discussion

216 The legislation does not define the term “marriage-like”. It is for the decision maker to have regard to the legislation and the facts of the case. Obviously, superimposed on this is the decision makers own experience and familiarity with the subject matter.

217 In T and C [2010] FCWA 91 at [342] Thackray CJ noted the observations of Gleeson CJ concerning the concept of de facto marriage in the case of MW v The Department of Community Services (2008) 244 ALR 205. Gleeson CJ made the following observations as to the interpretation of the expression ‘marriage-like relationship’.

[10] Finn J was correct to stress the difference between living together and living together “as a couple in a relationship in the nature of marriage or civil union”. The relationship between two people who live together, even though it is a sexual relationship, may, or may not, be a relationship in the nature of marriage or civil union. One consequence of relationships of the former kind becoming commonplace is that it may now be more difficult, rather than easier, to infer that they have the nature of marriage or civil union, at least where the care and upbringing of children are not involved.

[11] …

Marriage, in Australia and New Zealand, involves legal requirements of formality, publicity and exclusivity. A person may be a party to only one marriage at a time. De facto relationships, on the other hand, do not involve these elements. They are entered into, and may be dissolved, informally… It goes without saying that there is no mandatory public registration of sexual relationships, even if they involve cohabitation. De facto relationships may co-exist with the marriage of one or both parties and, at least in some circumstances, people may be parties to multiple de facto relationships. Yet the law to be applied in this case acknowledges that some are, and some are not, in the nature of marriage. How is the difference to be determined? No single and comprehensive answer to that question can be given, but there is one test that is applicable to the present case.

[12] In Stack v Dowden, Baroness Hale of Richmond said:

[45] “Cohabitation comes in many different shapes and sizes. People embarking on their first serious relationship more commonly cohabit than marry. Many of these relationships may be quite short-lived and childless. But most people these days cohabit before marriage … So many couples are cohabiting with a view to marriage at some later date — as long ago as 1998 the British Household Panel Survey found that 75% of current cohabitants expected to marry, although only a third had firm plans: John Ermisch, Personal Relationships and Marriage Expectations (2000) Working Papers of the Institute of Social and Economic Research: Paper 2000–

27. Cohabitation is much more likely to end in separation than is marriage, and cohabitations which end in separation tend to last for a shorter time than marriages which end in divorce. But increasing numbers of couples cohabit for long periods without marrying and their reasons for doing so vary from conscious rejection of marriage as a legal institution to regarding themselves “as good as married” anyway: Law Commission, Consultation Paper No 179, Part 2, para 2.45.”

[13] There is no reason to doubt that the same is generally true of Australia and New Zealand. It may be added that, in Australia, what often prompts cohabiting couples to marry is a decision to have a child, and to do so within the context of a marriage. People often refer to this as “starting a family”. The cohabiting parties to many relationships, especially first relationships of the “short-lived and childless” kind, may be surprised to be told that they are involved in a relationship in the nature of marriage or civil union. They may intend no such thing. The same may apply to some people in longer-term cohabitation who have chosen not to marry. It is the common intention of the parties as to what their relationship is to be, and to involve, and as to their respective roles and responsibilities, that primarily determines the nature of that relationship. The intention need not be formed in terms of legal status: to some people that is important; to others it is a matter of indifference… The intention may be expressed, or it may be implied. What is relevant is their intention as to matters that are characteristic of a marriage or a civil union, but that do not depend upon the formal legal status thus acquired. To describe a relationship as being in the nature of marriage implies a view about the nature of marriage. The same applies to a civil union. It is unnecessary, for present purposes, to attempt a comprehensive account of the features of a relationship that might justify such a description. Plainly, “living together” is not enough.

…

[14] In Magill v Magill, and earlier in Russell v Russell, reference was made to the historical role of the institution of marriage as a means of involving males in the nurture and protection of their offspring, and to the importance of the structure of marriage and the family in sustaining responsibility for, and obligations towards, children. There is a wide range of human behaviour across the spectrum between a sexual encounter and a marriage or civil union. It includes relationships which could never be described as being in the nature of marriage or civil union. Nevertheless, when a sexual union results in the birth of a child, cohabitation between the parties to the union is no longer a matter of purely personal convenience or satisfaction. The interests of a third party have intervened…

218 These observations provide some useful guidance. What is required is an overall assessment of the facts and of all the relevant elements of the relationship. At least to some extent, it involves a value judgment.

219 Although concerning the issue of whether a man and a woman were living together ‘as husband and wife on a bona fide domestic basis’, the Federal Court in Lynam v The Director General of Social Security (1983) 52 ALR 128 per Fitzgerald J at 131 noted:

Each element of a relationship draws its colour and its significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.

220 In his trial affidavit Dr Markhov deposes, somewhat brutally:

164. Based on cultural, educational, social, religious and other values and priorities in life, the Applicant and I are totally incompatible.

165. My ex-wife and I, who were both born in Bulgaria, are both scientists. We came to Australia under the “Exceptional Talents” visa category. I have 12 international patents from my career and my ex-wife is a Professor.

166. When my relationship with my ex-wife broke down I wanted to find a new partner from a similar eastern European background whose behaviour, life values, education, social experience and habits were similar to mine. I do not drink, I do not smoke and I do not gamble.

…

172. There could never be prospect of me wanting a marriage-like relationship with a person with the Applicant’s character, appearance, habits, sexual and financial behaviour, values and priorities in life, religion, cultural, education, social, culinary, the way of spending the weekends, or free time and holidays, relationships with relatives and friends which are all fundamentally different to mine.

221 Despite this attack, there was a continuous association between the parties over an extended period.

222 I have no doubt that Dr Markhov made use of Ms Shelley. I find he never had any intention of having a long term relationship with her. He continued to associate with her as it was a convenient and uncomplicated arrangement. On one level they were companions and could co-exist amicably – in common parlance, they were friends with benefits. However, Dr Markhov was simply biding his time. For a reduced rent he had some domestic tasks performed for him. He had a companion when it suited him and he had sex when the need arose.

223 Ms Shelley accepted her lot saying it was simply how they were. However, there was also considerable benefit for her. She had, on her own admission, an intelligent and dependable companion. She was able to rent out her own investment properties whilst paying minimal accommodation expenses herself. Although she objected to certain of Dr Markhov’s personality traits, she put up with them. In turn she was free to come and go as she pleased. She could leave his premises easily and return when she felt like it.

224 In many ways she, too, was opportunistic. She took what she could, when she could. She lived her life to please herself and her family.

225 Ms Shelley says that, in hindsight, she realises that Dr Markhov was deliberately trying to distance himself from what she says is the reality of their de facto relationship. She points to his resistance to any financial intermingling as an example of this; the payment of “rent”; the strict separation of funds and also the policy of rarely travelling together. I do accept that some of his actions were deliberately designed to separate himself from the notion of a de facto relationship. He did not want to be considered to be in such a relationship with Ms Shelley. Despite his intention in this regard, it is necessary to also look at what the reality of the situation was.

Is this then a marriage-like relationship?

226 Although I have already made some comments about the credibility of these parties, overall I accept the evidence of Dr Markhov over that of Ms Shelley. I found her to be a less than reliable historian and someone prone to exaggeration. She very rarely conceded obvious errors in her evidence. Some of her explanations simply did not make sense.

227 I found some of Dr Markhov’s attitudes dishonourable. Initially, by his own admission, his evidence was pitched to proving he was not in a de facto relationship rather than simply providing the Court with a full picture of the facts so that it could make a decision. However, at trial I found him candid in many ways.

228 A striking feature of this particular relationship is that over an extended period of time, Dr Markhov was actively seeking another partner. I accept this is likely to have begun in around 2000. I do not accept it was covert. I do not accept it was simply a searching for a fling or casual liaison.

229 Ms Shelley was aware of Dr Markhov’s interest in chat rooms and the use of internet sites for this purpose. She knew he had a list of women for use on his trip to Bulgaria in about 2001.

230 Although at one stage Ms Shelley criticised Dr Markhov for the use of pornography, I am not satisfied that Dr Markhov was involved in any such activity. In this case, I find there is a distinction between sites for pornography and sites which facilitate meeting or dating. I am satisfied that Dr Markhov did involve himself frequently in the latter.

231 Dr Markhov had two quite distinct albeit short lived relationships as a result of internet dating. Ms Valenska and Ms Boyle were both professional women and presented as intelligent and articulate. They were very likely involved with Dr Markhov at the common residence of the parties.

232 Whilst I accept that parties can still be in a marriage-like relationship and have affairs, liaisons or other de facto relationships, I am not satisfied that actively and openly searching for a life partner fits with the concept of a relationship in the nature of marriage. Whilst Ms Shelley said that Dr Markhov reassured her that she was the real thing and not simply a face on a computer, I find her explanations about his activities to be naïve and incredible. Above all, I am not persuaded they are true.

233 Dr Markhov also made inappropriate advances to Thai friends of Ms Shelley. Ms Shelley was aware of one incident. I am satisfied that there were enough signs, taken together, to suggest that Dr Markhov had other life plans in mind. The fact Ms Shelley may have chosen to accept this behaviour does not cement the relationship as being marriage-like.

234 Ms Shelley relies upon the length of the relationship and the fact that she was the one consistent element in Dr Markhov’s life as pointing to a marriage-like relationship. I find that argument to have strengths and weaknesses. She is right that she was a consistent presence in his domestic life. However, the fact of the length of time alone does not automatically give their relationship the requisite quality. Dr Markhov tried equally hard to persuade the Court that the relationship was one of bland friendship from beginning to end. Neither argument is pivotal to my decision.

235 It is not difficult to point to parts of their relationship that do have the sense of a marriage. I accept that members of the Thai Community saw them as a couple.

236 However, neither really treated the other as being of prime importance. They came and went, holidayed as they pleased, had no intermingling of finances, maintained strong cultural links which excluded the other and played little part in the family life of the other. They simply lived together.

237 Each had very credible witnesses to champion their cause. However, any judgment on the quality and veracity of that evidence is somewhat akin to undertaking the quest of Diogenes.

238 [Counsel for Ms Shelley] has sought to persuade me that if I am not satisfied there was a 14-year de facto relationship, then there was definitely one in the two year period of 2006 and 2007.

239 There are some features of this period that lend a more stable appearance to the relationship. There were no physical movements between residences. The parties purchased their investment property together. They attended some social functions together. I have touched on this previously – including a [formal event] and a wedding.

240 In early 2006, Ms Shelley returned from London. During that year she made about four trips to Thailand each of around two weeks duration. It was during this time her father passed away.

241 Dr Markhov also had his own holidays. In April 2007 Ms Shelley’s nephew and family came to Australia for the first time. I accept his evidence that Ms Shelley was in the same bedroom as Dr Markhov to allow him and his family to utilise the other bedrooms – one of which she usually used. He and other family members came again in October 2007.

242 I am not satisfied that there was a marriage-like relationship during 2006 and 2007 such that the provisions of the legislation are satisfied. There was never a period of time of the requisite length that these parties were in a relationship in the nature of marriage. I accept there were times when the parties were more fond of and closer to each other but I do not accept they were ever in a marriage-like relationship.

243 [Counsel for Ms Shelley] said the way they lived became their reality. Even if I am to accept “their reality”, I do not find it reflects a marriage-like relationship.

Order

1. The application filed 26 March 2009 be and is hereby dismissed.

I certify that the preceding [243] paragraphs are a true copy of the reasons for judgment delivered by this Honourable Court

Associate