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  • Unreported Judgment

W v T

 

[2005] QSC 168

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

W v T [2005] QSC 168

PARTIES:

W

(applicant)

v

T

(respondent)

FILE NO/S:

SC No 126 of 2004

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Mackay

DELIVERED ON:

20 June 2005

DELIVERED AT:

Townsville

HEARING DATE:

7 - 9 June 2005

JUDGE:

Cullinane J

ORDER:

  1. Declare that from on or about 1985 until March 2004 the applicant and the respondent lived together as de facto partners within the meaning of section 32DA of the Acts Interpretation Act 1954 (Qld) as amended
  2. Reserve the costs of the application to the trial judge

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – DE FACTO RELATIONSHIPS – LEGISLATION – where order made that the issue of whether there was a de facto relationship between the applicant and the respondent be tried separately  – whether applicant and respondent were in a de facto relationship under Part 19 Property Law Act 1974 (Qld) – whether applicant and respondent were de facto partners within the meaning of section 32DA Acts Interpretation Act 1954 (Qld) – whether applicant and respondent shared a common residence during the relevant period

Acts Interpretation Act 1954 (Qld), s 32DA

Property Law Act 1974 (Qld), s 257, s 260

S v B [2004] QCA 449, CA No 3022 of 2004, 26 November 2004, cited

COUNSEL:

K Fleming QC for the applicant

M A Fellows for the respondent

SOLICITORS:

SR Wallace & Wallace for the applicant

John Ryan & Co for the respondent

  1. The applicant seeks an order by way of property adjustment under Part 19 of the Property Law Act 1974 (Qld) as amended.  There has been an order that the issue whether the applicant was at relevant times the de facto partner of the respondent be tried separately.
  1. By virtue of section 260 of the Property Law Act 1974 (Qld) a reference to a de facto partner is a reference to a person who falls within the definition of section 32DA of the Acts Interpretation Act 1954 (Qld) as amended. 
  1. This (so far as is relevant) provides as follows:

(1)In an Act, a reference to a “de facto partner” is a reference to either 1 of 2 persons who are living together as a couple on a genuine domestic basis but who are not married to each other or related by family.

(2)In deciding whether 2 persons are living together as a couple on a genuine domestic basis, any of their circumstances may be taken into account, including, for example, any of the following circumstances -

(a)the nature and extent of their common residence

(b)the length of their relationship;

(c)whether or not a sexual relationship exists or existed;

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

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

(f)the degree of mutual commitment to a shared life, including the care and support of each other;

(g)the care and support of children;

(h)the performance of household tasks;

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

(3)No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether 2 persons are living together as a couple on a genuine domestic basis.

(4)Two persons are not to be regarded as living together as a couple on a genuine domestic basis only because they have a common residence.

  1. Part 19 of the Property Law Act 1974 (Qld) applies to all de facto relationships other than relationships that ended before 21 December 1999 (see section 257).
  1. The issue before this Court is whether, as the applicant contends, the applicant was a de facto partner of the respondent from 1985 until March 2004 when he, on his account, left the respondent and indeed left the Airlie Beach district where he had been living for many years.
  1. The applicant and the respondent have very different backgrounds and personalities.
  1. The applicant was described, accurately in my view, as a knock-about sort of a person who had worked in a variety of different jobs during the course of his working life. He was born on 20 May 1955. He had been working in the Airlie Beach area when in 1985 he met the respondent.
  1. The respondent was born in Germany on 13 March 1941. She was married and had two children who were born on 4 June 1972 and 17 December 1973. Her marriage had failed when she met the applicant and her husband had, at that time, returned to Germany.
  1. It was common ground that shortly after the time the parties met a sexual relationship commenced between them and it is common ground that this continued until the applicant left the area in March 2004. It is also common ground that shortly after they met the applicant moved into the respondent’s house at 3 K Crescent, Airlie Beach. This home was owned jointly by the respondent and her former husband but became hers following a matrimonial property settlement in the early 1990s. The respondent and her husband owned a caravan park at Cannonvale on some 12 and a half acres. The applicant in evidence described this as consisting of some 20 caravans, three cabins, three cottages, four deluxe cottages and about 50 sites with some campsites in addition. (The evidence suggests that the caravan park is an asset of considerable value). There was a small shop which seems to have largely been treated as the applicant’s shop. Following the respondent’s husband’s departure the operation of the caravan park became her responsibility. When the applicant met her she could be described as a single mother devoted to her two sons and having the responsibility of the conduct of the caravan park. Whereas the applicant had an interest in sporting pursuits, particularly rugby union, the respondent was interested in arts and her hobbies were largely in this area.
  1. It is the respondent’s case that in 1989 the applicant left 3 K Crescent and moved into some accommodation attached to the office at the caravan park and thereafter he and the respondent resided separately until March 2004. She fixes this by reference to the departure of one Alan Dreyer from the management of the caravan park and the applicant’s assumption of this role. Dreyer says he left in mid 1988. The applicant gives quite a different account. He says that whilst he was working elsewhere he commenced to perform some tasks at the caravan park from shortly after the relationship commenced and, at the request of the respondent, dismissed the then manager of the caravan park in 1986. She left the decision to him as to a replacement and in 1986 he employed a friend, Dreyer, as the park manager. The respondent says that he was working as a truck driver at this time. The respondent became dissatisfied with the performance of Dreyer who himself had expressed some unhappiness about the amount of work he was required to do. The respondent asked Dreyer to leave and according to the applicant, at her request, he (the applicant) moved into the park as manager at that time. He says that whilst he spent considerable time at the house attached to the manager’s office, the respondent insisted that he return home each night to her at 3 K Crescent. For differing periods a person was employed to sleep in the house at the park each night. The requirement to sleep at the park at least some nights was because people would sometimes book in late and also for security purposes to prevent people illegally entering the park to use the facilities. The applicant says that he managed the park during this period during the day. After about one year, the person who was employed left and it was necessary for the applicant to live at the park, managing it and staying there some nights but going home approximately four nights a week. The respondent, according to the applicant, demanded that he make arrangements for somebody to look after the park of an evening and that he return home to be with her. The applicant arranged for a person to occupy a spare room in the premises at the park, enabling the applicant to return home and this arrangement persisted for about six months. However, as a result of tension between the respondent and this person, the latter left. Again it was necessary for the applicant to manage the park full time. This required him to work there seven days a week and he would return home late in the evening, although after having returned home for dinner, on approximately four nights a week he would return to the park and stay there for the evening. He then arranged for a marine biologist, one Dougal Pennefeather, to occupy the spare room attached to the office and manager’s accommodation and to look after the shop for some three or four nights a week, thus enabling the applicant to return home on those nights. This arrangement lasted for a year before Pennefeather left.
  1. The applicant says that, with the departure of Pennefeather, he realised that it was never going to be possible to obtain anybody who would stay indefinitely at the caravan park. Pennefeather left in April 1992 and thereafter the applicant managed the caravan park and slept there a number of nights each week, returning to 3 K Crescent for the remainder. Over the last few years he spent more time at the caravan park, returning to 3 K Crescent on only approximately two or three nights per week. It is the applicant’s case that his role extended far beyond the management of the caravan park and extended to virtually all aspects of the operation whilst the respondent (together with her husband) made the major financial decisions in relation to the caravan park. The applicant swears that his roles at the caravan park included:

(a)roster;

(b)checking the residents safetyand security;

(c)coordinating maintenance staff;

(d)customer liaison;

(e)cruise bookings and park bookings;

(f)groundwork close to the office including mowing, gardening repairs and cleaning;

(g)dealing with tradesmen and company representatives;

(h)balancing the till.

The respondent did the banking for the caravan park.

  1. In about 2000 the respondent commenced to suffer significant health problems and she is described as having had a mental and physical breakdown. She had a hysterectomy and reference is made to hormonal problems. At this time the eldest son A, who was living at home with the respondent, commenced to take an interest in the caravan park. It is clear that in latter years there was some hostility on the part of A towards the applicant and it is probably fair to say that at the time the applicant left in 2004 the relationship, however it is to be defined, was heading for trouble.
  1. The respondent says that whilst a sexual relationship continued between she and the applicant and whilst she regarded him as a friend, there was no common residence after 1989. Their relationship was one of employer and employee with the additional features that I have just mentioned, that is a relationship of intimacy and friendship. The applicant on the other hand says that at all times he remained a resident with the respondent at 3 K Crescent and that the relationship between them was that of a couple involving ongoing sexual relationships and a shared life. His residence at 3 K Crescent was on his account limited as to the number of nights each week he spent there by the need to attend to the affairs of the caravan park. He kept clothes at both places.
  1. The question of whether the parties shared a common residency of the kind which the applicant claims is in my view very important in the circumstances of this case in determining whether the parties lived as de facto partners. If the applicant did continue to share the residence at 3 K Crescent with the respondent to the extent and in the manner that I have described, I think that would go a long way to justifying a finding that they were de facto partners. On the other hand, if they lived in separate residences after Dreyer left, it would not be possible, in my view, to regard them as de facto partners. Each side filed a number of affidavits directed to this issue.
  1. Alan Dreyer deposes to events which occurred during the time that he was there. As I have said there is no real dispute that prior to his leaving the parties lived at 3 K Crescent. He describes a relationship in which the parties showed signs of affection openly to each other. He says that he saw the applicant at sporting events with the respondent’s sons but in the respondent’s absence. According to him, both the respondent and her former husband more than once suggested that he should be discreet as to what he said in public about where the applicant lived and his relationship with the respondent. Ross Spence, who describes himself as a close friend of the respondent, speaks of visiting the applicant and the respondent at K Crescent on a number of occasions during the time that he (Spence) was at Daydream Island for approximately four years from 1985. He deposes to an occasion when he had returned in 1990/91 to the area and stayed with the applicant and the respondent at 3 K Crescent. He says that the applicant would come back from the caravan park to the house in the evenings and have dinner, which had been prepared by the respondent. According to him, it was obvious that the two were sharing the same room and living together in the same way as was the case when they visited them on a number of earlier occasions. He also describes the parties showing signs of affection to each other. On occasions the respondent’s former husband was present and Spence says that the applicant would appear to spend more time away from the house during the presence of the respondent’s former husband. At some time after Spence and his wife returned to Brisbane in 1991 he saw the applicant and the respondent at the applicant’s mother’s home in Brisbane. They appeared to him to be occupying the same room. He also deposes to staying in the caravan park in 1991 for two or three weeks. He says the applicant appeared to remain in the caravan park for some nights and stayed elsewhere about three nights a week.
  1. Dougal Pennefeather who is the marine biologist to whom reference has been made, speaks of a period from 1991 to April 1992 when he resided in the living quarters attached to the reception and main office looking after the park reception in return for his accommodation. Approximately two nights a week the applicant would stay overnight at the living quarters also but for the rest of the time, would leave the caravan park, saying he was going “home” which Pennefeather understood to refer to K Crescent. Pennefeather says that on about a half a dozen occasions when he needed to speak to the applicant during the evening he called the respondent’s home telephone number and either the applicant or the respondent would answer. He also went with the applicant to K Crescent to pick up fishing gear on occasions.
  1. Particular mention should be made of the evidence of Richard Davis. He has sworn an affidavit which was filed on behalf of the respondent. He was a tenant at the caravan park in 1999/2000 and then became a groundsman in March 2000 at the caravan park. He was employed in this position as at the time of swearing his affidavit which was filed on 26 May 2005. The tone of this affidavit is favourable to the respondent and is somewhat unfavourable in its references to the applicant. He had previously had a conference with the solicitor for the applicant who prepared a draft affidavit which was not signed by him and which is exhibit 10. He did not sign it he says, because at the time he received it he had already sworn the affidavit on behalf of the respondent. However in evidence (except in a number of respects where he withdrew, qualified or explained aspects of the affidavit) he accepted that it accurately represented what he had said and was the truth. Whereas in the affidavit which he swore, he referred to the fact that for the last couple of years he would wake the applicant up at about 8.00 am each morning (something plainly suggesting that the applicant was resident at the park permanently) in the draft affidavit he said that the applicant “appeared to be mostly staying at the caravan park as I could see”. He said that on occasions the applicant would mention on the following day that he had been to see the respondent or on occasions that he was going to see her for tea as it was her birthday or that he was going to give her a present. According to exhibit 10, the applicant made all of the decisions in relation to the Seabreeze Caravan Park and had in fact appointed him. He has the applicant referring to the respondent as his “other half”. For approximately a week when the applicant was ill he stayed, according to Davis, at K Crescent whilst the respondent manned the caravan park until 7.00 pm when she would go home to look after the applicant. In cross-examination by counsel for the respondent he said that he would leave the applicant of an evening at about 9.00 pm and did not know what the applicant did after that. Of a morning when he (Davis) turned up, the applicant would always be either about in the building or in bed, in which case he would have to wake him up.
  1. There are affidavits from the respondents’ two sons. The youngest son N, after finishing his secondary education, attended James Cook University at Townsville. He would however be home on a regular basis. He finished University in 1995 and then left the area, returning home each year for holidays. The eldest son, A, completed his university education in 1994 and after some period away returned to live at K Crescent in 2000. He had in the intervening period been home from time to time and thereafter resided permanently at K Crescent. Both sons depose that the applicant during all of these years did not live at any time at 3 K Crescent.
  1. The respondent’s former husband has also sworn an affidavit. He visits Australia regularly to see his sons. The details of his visits appear in an annexure to his affidavit. He often stays at 3 K Crescent but he has on occasions stayed at a neighbour’s house and at the caravan park. He says that the applicant was not a resident at 3 K Crescent during any time that he has either stayed there or spent any time there over the years covered by the document to which I have referred.
  1. There are affidavits from two neighbours. Joe Engwirda says that he knows the applicant but that since about 1988, when he and his wife moved into their home next door, he has rarely seen the applicant at the home and has never seen him do any work at the residence. He has asked the respondent at various times to social gatherings at his home and these invitations have been to her alone and that she has attended alone and never with the applicant. The applicant says that he in fact has been on occasions with the respondent to the home of Mr Engwirda and referred to two specific occasions. I am inclined to think that Mr Engwirda has forgotten about those. William McGrath who has lived next door since 1988 says he has only seen the applicant at the respondent’s property on about four or five separate occasions. He says that he has not seen them out together in the area socialising on any occasions or seen photos of them in the local newspaper. Mr McGrath in cross examination conceded that he didn’t have any particular interest in who may have resided in the dwelling and it is clear that he could not speak with any certainty on the subject.
  1. Section 32DA makes it clear that none of the considerations set out in sub-section (2) is to be taken as sufficient or necessary for the existence of a de facto partnership.
  1. The circumstances in which persons live together as de facto partners can and will undoubtedly vary greatly. Indeed they can be expected to be as variable as human nature itself. As Dutney J pointed out in S v B [2004] QCA 449 at [50], a person asserting the existence of a de facto relationship must prove the positive aspects of the relationship constituting the de facto relationship.
  1. It is not suggested here that there are any considerations peculiar to this case in addition to those set out in section 32DA(2) Acts Interpretation Act 1954 (Qld).  It will be helpful then, if I set out my views on the evidence and my conclusions by reference to the considerations as they appear in sub-section (2) in the order in which they appear.
  1. the nature and the extent of the common residence
  1. As I have said, in my view this issue is of critical importance in the present case. A consideration of the evidence as a whole satisfies me that the applicant’s account is correct and that he did in fact continue to reside at 3 K Crescent for some nights each week until his departure in March 2004. The evidence suggests that this was, in the latter part, limited to no more than two or three nights a week. However, I do not think that this affects the conclusion that the parties should be regarded as maintaining a common residence during that period. Rather, it goes to the nature and extent of the common residence. There are some important pieces of documentary evidence under the hand of the respondent or for which she was responsible, which provide support for this conclusion.
  1. The first of these is constituted by certain group certificates prepared by the respondent and signed by her. These show the applicant’s address for each year covered by them (through the 1990s until 2004) as being 3 K Crescent. In the year ending 30 June 2004 it is shown as 234 Shute Harbour Road, Cannonvale. This is the address of the caravan park. The applicant had left the area at this time and was not a resident at either place. The respondent says that the address was simply for convenience and that for the year ending 2004 she did not know where the applicant was living. The second piece of evidence is constituted by two fossicker licences. One of these is exhibit 6 and is a fossicker’s licence described as a family licence in the name of the applicant and respondent showing the address as 3 K Crescent. It is dated the 23 June 2003 and was obtained by the respondent. Exhibit 7A is a fossicker’s licence in the name of the applicant showing his address at 3 K Crescent. Exhibit 7B is a hand written letter in support of the granting of that licence. It is in the respondents’ handwriting and is dated 15 May 2002. She shows the person to whom it is to be granted as the applicant and his address is 3 K Crescent, Airlie Beach, Queensland. She describes it as being a birthday present for him.
  1. In exhibit 8 (which is the application in the Family Court for dissolution of marriage) which was filed on 13 August 1990, the respondent shows in that part of the application relating to particulars of any person who resides at her residence at that time, the name “John Osborne”. These are the first two names of the applicant and she accepted that it was a reference to him. She was inclined to blame her solicitor for misunderstanding the position and thus completing the document incorrectly. At this time on her account the applicant had for some time resided at the caravan park.
  1. In addition it appears that in the early 1990s the respondent bought a boat (a 14 footer) which was registered in the name of the applicant. She says she became aware that it was registered (when presumably the registration was renewed from time to time) in the name of the applicant and his address was shown as 3 K Crescent. As with the other matters, she was inclined to suggest that 3 K Crescent was simply a convenient address for business mail, including any bills that had to be paid. The respondent volunteered that she understood the applicant was registered on the electoral roll at 3 K Crescent but that he had taken it on himself to do this.
  1. It is difficult to reconcile the explanation she gives for the address on the documents referred to with the contents of exhibit 8.
  1. I regard the evidence of Mr Spence which I accept as important on this issue. His evidence of what he observed in 1990/91 when he and his wife stayed with the parties at K Crescent has the parties residing at K Crescent. He also saw them after 1991 at the applicant’s mother’s home in Brisbane where they appeared to be sharing a room.
  1. Pennefeather’s evidence relating as it does to a time after Dreyer’s departure and the applicant assuming the position as manager, is also important evidence supporting the applicant’s claim that he was residing at 3 K Crescent on evenings when he was not at the caravan park.
  1. I do not regard the evidence of Davis, at least as contained in exhibit 10, as inconsistent with the applicant’s claims that he was returning to 3 K Crescent during the period of two or three years prior to his departure for two or three nights a week. Mr McGrath’s evidence made it clear that he was not really in a position to speak of who resided at 3 K Crescent. I am inclined to think that Mr Engwirda has overlooked the occasions that I have referred when the applicant and the respondent together attended his house for a social function. The evidence does not suggest that the applicant and respondent socialised publicly a great deal (although as will be mentioned, I am satisfied that they engaged in joint activities together) but the evidence would suggest that the caravan park was the joint interest to which the great bulk of their time was devoted. The evidence of the respondent, her two sons and her former husband are inconsistent with the claim that the applicant continued to reside at 3 K Crescent in the manner that I have described. I do not, in the end result, accept their evidence on this subject, finding the evidence that the applicant resided at K Crescent (to the extent referred to) more convincing.
  1. the length of their relationship
  1. On any view of things the relationship subsisted over almost two decades.
  1. whether or not the sexual relationship exists or existed
  1. This was common ground.
  1. the degree of financial dependence or interdependence, in any arrangements with financial support
  1. Both the applicant and the respondent drew a wage from the caravan park with each drawing the same amount. No evidence was placed before me designed to demonstrate that the applicant, in working seven days a week and spending a number of nights at the caravan park, was providing services of a value significantly in excess of the amount which he received. It is, I think, plain that at the commencement of the relationship when he was receiving something like $90 per week for the tasks which he described he could not have been receiving a wage which represented fair value for those services. It was pointed out on behalf of the respondent that A, the respondents’ son, deposes to the fact that the present manager receives the same wage and works under the same arrangements as the applicant. On the other hand, in exhibit 10 Davis says that the present manager does nothing but run the office. The applicant’s activities extended far beyond this as Davis himself describes in exhibit 10 and as the applicant deposes to. I think it is likely that there was a significant component of unpaid work performed by the applicant at the caravan park but this is not, in my view, critical to the determination of the question that I am asked to resolve. Each of them used income derived from the caravan park for their own purposes but also for joint purposes such as the provision of food and the purchase of gifts from time to time.
  1. ownership use and acquisition of property
  1. There is no suggestion of any acquisition of joint property. I have already referred to the purchase by the respondent of a 14 foot vessel for some $12,000 in the name of the applicant. The primary financial interests which existed throughout the relationship were in place at the time the parties met and remain in place. First and foremost is the ownership of the caravan park. There is also the dwelling at 3 K Crescent. I do not think that the ownership or acquisition of property in this case is a significant factor given the particular circumstances of the parties and their relationship. The caravan park to which so much of the applicant’s and to a lesser but nonetheless substantial extent, the respondent’s activities were devoted provided support for both of them and is, on my assessment of the evidence, an important facet of their joint lives together.
  1. the degree of mutual commitment to a shared life, including the care and support of each other
  1. The evidence supports a conclusion that they lived jointly from 1985 to 2004. The respondent provided the meals for the applicant and herself at 3 K Crescent and also made clothes for him. They would over more recent years have separate holidays but according to the applicant whose evidence I accept, this was because it was necessary that one or the other be at the caravan park to attend to its affairs. Nonetheless, I am satisfied that they did occasionally go away on short trips together. There is the evidence of fossicking trips extending to as late as 2003. The applicant accompanied the respondent to hospital on the occasion of her hysterectomy. I accept however that he played little if any role insofar as her ongoing treatment was concerned. He says that although they spoke about her problems to some extent, her behaviour became erratic and communication difficult.  There is evidence from exhibit 10 and elsewhere of the discussion by them of joint problems associated with the caravan park and also family matters. 
  1. the care and support of children
  1. It cannot be expected that the applicant would have played any role in the major decisions affecting the children as this was the responsibility of the respondent and her former husband. Nonetheless I accept his evidence that he attended an orientation day at Rockhampton Grammar about the time the children were enrolled there and he went there on one occasion to visit them with the respondent. In addition, the evidence satisfies me that whilst they were attending primary school at Cannonvale he would take them each day to school and that he was also involved in their sporting and recreational activities, without the respondent being present.
  1. the performance of household tasks
  1. There is nothing to suggest that the applicant played a significant role in the performance of household tasks at 3 K Crescent. The respondent prepared meals and attended to the running of the household. It is perhaps not surprising that he did not play any such role given the amount of time which it was necessary for him to devote to the caravan park.
  1. the reputation and public aspects of their relationship
  1. I have already said that the evidence does not suggest any significant degree of socialising on behalf of the applicant and respondent in the area where they lived, however they went on a number of holidays together particularly in the early days of their relationship. Thereafter for reasons I have already canvassed, they tended to take separate holidays. Nonetheless, I accept that they went on some holidays together such as the fossicking trips and occasional brief trips of two to three days in length. Davis, in exhibit 10 refers to the applicant referring to the respondent as his “other half” and a number of the deponents speak of a public display of affection between them. The obtaining of a family licence in both of their names by the respondent in 2003 is also relevant to this consideration.
  1. It is true that there are some unusual features in the relationship in this case, but I am satisfied from the evidence that the relationship which existed between them was one of parties living together as a couple on a genuine domestic basis without being married to each other.
  1. The evidence also satisfies me that following the respondent’s illnesses from about 2000 and the presence of A and his hostility towards the applicant, the relationship may have waned somewhat and was probably doomed not to survive but it did not undergo any change to its essential character.
  1. I declare that from in or about 1985 until March 2004 the applicant and the respondent lived together as de facto partners within the meaning of section 32DA of the Acts Interpretation Act 1954 (Qld) as amended.
  1. I reserve the costs of the application to the trial judge.
Close

Editorial Notes

  • Published Case Name:

    W v T

  • Shortened Case Name:

    W v T

  • MNC:

    [2005] QSC 168

  • Court:

    QSC

  • Judge(s):

    Cullinane J

  • Date:

    20 Jun 2005

Litigation History

No Litigation History

Appeal Status

No Status