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K v H-J

 

[2006] QSC 168

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO/S:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

DELIVERED ON:

7 June 2006

DELIVERED AT:

Supreme Court at Brisbane

HEARING DATES:

23, 24, 25 and 28 November 2005

JUDGE:

Douglas J

ORDER:

Application dismissed
Further submissions invited as to costs

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – DE FACTO RELATIONSHIPS – ADJUSTMENT OF PROPERTY INTERESTS – GENERALLY – where plaintiff and defendant were involved in a sexual relationship – where plaintiff and defendant never resided in one principal place of residence – where sexual relationship ended and plaintiff and defendant continued as close friends – where plaintiff assisted defendant in his personal affairs – where defendant loaned funds to plaintiff on the basis that they be repaid – whether de facto relationship existed between plaintiff and defendant

Acts Interpretation Act 1954 (Qld), s 32DA

Property Law Act 1974 (Qld), s 287(a), s 287(c), s 291, s 292

Mao v Peddley [2001] NSWSC 254, cited

Thompson v Department of Social Welfare [1994] NZLR 396, cited

COUNSEL:

Plaintiff appeared on her own behalf

C J Forrest for the defendant

SOLICITORS:

Plaintiff appeared on her own behalf

McCullough Robertson for the defendant

[1] The main issue in this case is whether the plaintiff and the defendant were “de facto partners” as that term is used in s 287(a) and elsewhere in the Property Law Act 1974 and s 32DA of the Acts Interpretation Act 1954.  Relevantly, I have to examine whether they have lived together in a de facto relationship for at least two years or whether the plaintiff has made substantial contributions of the kind mentioned in ss 287(c), 291 and 292 of the Property Law Act, where failure to make an order adjusting the interests in the property of the parties would result in serious injustice to her.

[2] As will become clear, it is my view that there has never been a de facto relationship in existence between them nor does the plaintiff become entitled to an order on the basis of “substantial contributions” of the type referred to in s 287(c) of the Property Law Act.

[3] The plaintiff’s case was that she and the defendant were in a de facto relationship from 1995 to the end of 2002.  The defendant’s case was that they were friends who had a sexual relationship for a relatively brief period at an early stage and that later the relationship became simply a friendship that terminated acrimoniously in late 2002 or early 2003.  In the following narrative of the background to the relationship I have, generally speaking, preferred the evidence of the defendant and his witnesses, with some exceptions.  For a number of reasons detailed below I found the plaintiff to be an unreliable witness.

Background

[4] At no stage did the parties live together in one principal place of residence.  Between 1995 and 1998 the plaintiff’s evidence was that they saw each other at least three days per week but that she used to return to her home because of the need to look after her pet animals.  After 1998, there is no suggestion that their relationship involved more frequent contact than in the first three years.  This was the case until the latter part of 2002.  In the middle of that year, the plaintiff moved into the defendant’s house in outer suburban Brisbane, but the defendant moved out at the same time to a unit in the centre of Brisbane and then lived some of the time in that unit and some of the time in another unit on the Gold Coast.  The plaintiff claimed to have stayed regularly with the defendant during the latter half of 2002 at those units in the centre of Brisbane and at the Gold Coast for several nights a week.  That was denied by the defendant.  This brief chronology of the relationship needs to be filled out in greater detail.

[5] The plaintiff is 67, was born in Europe and has been married twice.  The defendant was born in Australia, is now 60 years of age and has never been married.  He was raised in Victoria and moved to Queensland about 14 years ago.  He was employed at that time, lived initially in two inner Brisbane suburbs and, in late 1995, moved to a property in an outer suburb where he had bought land in late 1994.  He built a house on that land between April 1995 and December 1995 and lived there from when the house was completed until about April 2002.

[6] The plaintiff and the defendant met through their mutual interest in a political party in about the middle of 1995.  By then the defendant was not working because he suffered from chronic fatigue syndrome.  The plaintiff was working part time as a teacher. Between about August and November 1995 they saw each other regularly, perhaps about twice a week and, on some of those occasions, they had sexual relations.  In September 1995 the defendant turned 50 and was given a new Mercedes Benz motor car by a wealthy brother who lived overseas.  He planned to drive to Melbourne to celebrate his birthday with members of his family and invited three female friends to travel with him.  The plaintiff was the only one to accept.  She said that they slept in motels together on the way down to Melbourne, something with which the defendant agrees. 

[7] She also said that the defendant told her that the car would be a pre-nuptial present to her.  He disagrees, and the plaintiff was unable to particularise any details of any pre-nuptial agreement, whether actual or proposed, when cross-examined about that issue: see T40-41.  That the relationship was of that nature at that stage seems objectively unlikely also as, when they arrived in Melbourne, the defendant dropped the plaintiff at Tullamarine Airport to be picked up by her sister-in-law.  He stayed in Melbourne for a few days, attending his birthday celebrations to which he did not invite the plaintiff.  They returned to their homes independently of each other, with him driving home and the plaintiff flying back to Brisbane.

[8] The defendant says that, once they were back in Brisbane, he and the plaintiff continued to see each other and that about November 1995 the nature of the relationship began to change, the frequency of the plaintiff’s visits dropped and their sexual relationship began to cool off.  He says that the relationship began to become one more of friendship than one based on sexual intimacy.  The other evidence of events after that period supports that conclusion.

[9] He moved alone into his new house in outer suburban Brisbane in December 1995. She said that she had some involvement with the design and construction of that house, something which is denied by the defendant.  The plaintiff did, however, buy a block of land near the defendant’s house late in 1995 and entered into a contract with a builder to construct a house designed by the defendant on that land.  She did not follow through on that plan, however, and later sold that block after renting a house adjacent to it for about two and a half months and then renting another house in the same area where she stayed until about June 1996 before relocating to her former matrimonial home to prepare it for sale.  That former matrimonial home was a considerable distance from the defendant’s house. 

[10] The defendant says that he did not stay overnight in either of the rental properties where the plaintiff lived near his outer suburban house and that no sexual relations ever took place between the plaintiff and him in either of those homes.  He did not invite the plaintiff to live with him nor did he want her to.  During Christmas that year, 1995, he stayed with some friends and did not ask the plaintiff to accompany him.

[11] In January 1996 another widowed friend of his from Adelaide visited him with her son and stayed with him in his house for about 10 days.  She gave evidence and had no recollection of meeting the plaintiff during that visit or of seeing any evidence of her having lived in the defendant’s house.  The defendant did not tell her that he was in a serious relationship with anyone then or at any time. 

[12] The defendant’s evidence about the final six month period, when the plaintiff rented homes near his house during that period in 1995-1996, is that she would drop in and visit him about once a week, sometimes bringing him milk and the morning paper. On some of those occasions she came in and offered to make him a cup of tea.  He says that during that period they had sexual relations, but only on very few occasions and with ever decreasing frequency.  He estimates that it was about seven or eight times during that six month period.  He says that he never considered marriage or entering into any relationship like marriage with her.

[13] After the plaintiff moved to her former matrimonial home in mid-1996 she stayed there until it was sold in May 1999.  The defendant’s evidence is that, after she made that move, she continued to telephone him on regular occasions but visited him no more than once a month on average.  He estimates that he visited her at that former matrimonial home about two or three times during the three years she lived there.  He can recall having sexual relations with her only once during the beginning of that period.  When she visited him during that period, she would occasionally stay for dinner, which he cooked.  He said that she sometimes then slept on the couch at his place with his approval but that, by 1999, their sexual relations had ceased.  They were simply friends.  His evidence was that he was friendly with and seeing other women, including one who lived at his house between October 2001 and March 2002, when she needed somewhere to stay for a while.

[14] He was also involved with church groups which formed an important part of his life not shared with the plaintiff.  By late 1996 he became heavily involved in the activities of a particular Christian centre and attended functions there up to five or six times a week.  The plaintiff did not attend those functions with him except for one occasion in 1999 when she drove him to one.  The minister who had the most contact with him at that Christian centre was a significant witness.  He said that he was mentoring the defendant during the period from August 1996 throughout 1997 and 1998 until early 1999.  He ministered particularly to single people.

[15] He regarded the defendant as a person who was serious about following God and said that, during the period he was mentoring him, the defendant did not once mention any special relationship with any woman, certainly not a de facto relationship.  He also said there was never any significant period when the defendant stopped coming to his group in spite of his chronic fatigue syndrome.  He had never met the plaintiff and she was never mentioned to him.  The plaintiff was raised as a Catholic and may have had little affinity with this minister’s Christian centre but, if the relationship was of the nature she suggested, it would have required a high degree of duplicity for the defendant to hide it from the minister.  The defendant did not strike me as having such a personality.

[16] The minister also rejected the possibility that the defendant was too shy to mention the plaintiff.  As the minister said, he “used to get to know the most intimate details about people because they came to [him] for counselling”: T271 ll 28-30.  His most telling answer in cross-examination was this (T273 ll 14-20):

“I cannot comment on any aspect of friendship or otherwise between yourself and [the defendant]. All I can say is that in two and a half years of mentoring him, of counselling him, of speaking to him on very deep spiritual matters the issue never came up and the probability of anything there, I would say, is highly remote from my perspective.”

[17] There was no reason to disbelieve the minister and it seems to me to be particularly significant evidence given the nature of his relationship with the defendant.

[18] The defendant remained politically active during this period and set about establishing a branch of the party to which he belonged in the area where he lived. When the plaintiff lived in that area she was a member of a local branch of the party but when she went back to her former matrimonial home she transferred her branch membership to another Brisbane branch of which she had previously been a member.  This was at a time when the defendant was running for an elected office within the party’s organisation and could have benefited from the plaintiff’s vote had she remained with the branch of which the defendant was a member.

[19] After her former matrimonial home was sold in May 1999 the plaintiff moved to a bayside suburb of Brisbane where she lived until about April or May 2002.  During that period the defendant continued to live at his outer suburban house.  He was driving a taxi for almost two years between May 1999 and March 2001 but, on 14 February 2000, his wealthy brother who lived overseas, died intestate.  The defendant and his siblings were entitled to take an interest in the estate on the intestacy.  On 20 June 2001 he received $420,000 as the first payment due to him from his brother’s estate.  In September 2001 he also received a disability insurance payment in respect of his previously diagnosed chronic fatigue syndrome worth approximately $260,000.  He had commenced an action to obtain that insurance in about late 1998.

[20] While he was suffering from chronic fatigue syndrome, he had supported himself by selling personal assets, borrowing money against his house and against the Mercedes Benz previously given to him by his brother.  He sold that car in March 1999 and was left without a car of his own.  The plaintiff assisted him during that period when he did not have a car by driving him to see the solicitors who were handling the action against his insurer in northern New South Wales.  He paid her some money for the use of her car on those occasions and she also drove him to doctors’ appointments at a medical clinic on several occasions during that period. Generally speaking, however, he used public transport to get around after he sold his car. When he commenced work part-time driving taxis, the plaintiff dropped him at the taxi company headquarters for his first training course lecture.

[21] During this period he said that he had a limited social life which included some other female friends.  Sometimes he was absent from his house interstate or overseas.  During some of those occasions, the plaintiff agreed to look after his house as did another female friend. While driving a taxi early one morning in February 2000, he was arrested for non-payment of some traffic fines, was allowed to make one phone call and rang the plaintiff.  She came to the watch house and paid his fines on her credit card.   He later repaid her.

[22] When his brother died he travelled to the United Kingdom.  He says there was never any suggestion that the plaintiff should accompany him and she did not do so.  She says that she assisted him to pay for the fares by using her account to receive moneys from his siblings to allow him to make the trip.  The plaintiff says that she received those moneys into her account to assist him.  She was not left out of pocket in respect of those payments.  The plaintiff looked after his house while he was away.  The house was, by that time, in the name of a company owned by his deceased brother.  It had been purchased by the brother through the company in about mid 1999 to assist the defendant with his liquidity.  The defendant continued to live there by himself rent free.

[23] While he was away at his brother’s funeral he arranged for the plaintiff to pay his bills through some money borrowed from a sibling and a cousin. She facilitated the transfer of the money into an account which he could access while he was overseas.

[24] His deceased brother left a significant estate and it was necessary for the defendant to communicate extensively with his siblings and his deceased brother’s lawyers in the United Kingdom.  The plaintiff assisted him with typing.  She could type better than he could and had her own computer.  He did not have one.  After his brother’s death, the defendant visited the plaintiff often at her home, he says to get her assistance in typing letters for him.  He sometimes slept or had a rest there during the day but not overnight.  Nor, he says, did he have sexual relations with her at the bayside home where the plaintiff was then living.

[25] When he received the first sum of money from his brother’s estate he bought two cars.  He allowed the plaintiff the use of one of them, a Subaru station wagon.  He asked her to register an encumbrance over the vehicle which she did not do.  He also suggested to her that she sell her own car and use the proceeds to pay off her debts.

[26] Because of the size of his brother’s estate he expected to be paid something a little in excess of $8,000,000 from it.  He formed a company to use for investment purposes when the balance of his inheritance came through. When he was successful in his action against his insurer he purchased two adjoining blocks of land in a development near Brisbane, in the second quarter of 2002, with the intention of building his own house on one of those blocks and of having a house built on the adjoining block for the plaintiff.  He wished to have her living in the house next door to him as he expected to be travelling a lot with his new-found wealth.  He says that he did not suggest to the plaintiff that they should live together or that she would have any interest in the house save as a rent-free occupier of it.

[27] Well before this time, in fact, he had instituted what he called a “one metre rule” with the plaintiff.  The arrangement started in about 1998 and was an arrangement with which the plaintiff agreed and did not challenge in evidence.  If the plaintiff rang and asked the defendant whether she could come over to his place he would say to her: “You know the rules.  So long as you stay a metre away from me.”  The plaintiff agreed that such a rule existed when she was cross-examined about it at T137 ll 24-35.

[28] She attributed the cessation of their sexual relationship to a heart condition said to have been suffered by the defendant and asserted that they slept together many times until 2002.  I do not believe that.  More importantly, it seems to me that her acceptance of the existence of the “one metre rule” as instituted in 1998 is quite at odds with her view of the relationship as one of a couple living together on a genuine domestic basis. The defendant did not pursue his project of building houses on adjoining blocks because he believed that the plaintiff would not accept the boundaries that he had set in their relationship, especially if they lived next door to each other. He says that about that time she started acting possessively of him.

[29] He then agreed to buy an inner city unit block in about April or May 2002, having earlier in that year received another $4.5 million from his late brother’s estate.  When he moved into that unit in town the plaintiff moved into his former house in outer suburban Brisbane.  In June 2002 the defendant also acquired another unit at the Gold Coast.  He also had retained one of the blocks of land near Brisbane and built a property on it from July 2002 but lived from August 2002 in his inner city unit and his Gold Coast unit.

[30] From October 2001 another woman had been living at his outer suburban home, as I mentioned earlier.  She stayed there until about May 2002 when he agreed to allow the plaintiff to move into that house as she was still in poor financial circumstances.  He did not want to sell that property then nor to rent it out commercially.  He says that he wished to have access to it to show it to people who might have been interested in its design. He believed that the plaintiff would take care of it. He left a significant amount of furniture at his outer suburban house for the plaintiff’s use and mainly bought new furniture for his two units.

[31] He denies that the plaintiff lived with him at either of his units, says that she visited him rarely at his inner city unit but that she visited his Gold Coast unit more regularly as she was still doing word processing work for him in connection with his communications with the lawyers for his deceased brother’s estate.  He says that she also had a daughter and grandchild who lived nearby at the Gold Coast whom she would visit at the same time as coming to his unit there. His evidence was that during this period she would sometimes stay there until 11.00 pm because of the time differences between Australia and the United Kingdom and would sometimes stay over rather than drive back, but would sleep on the couch.  He denies that there was any sexual intimacy at the Gold Coast unit or the inner city unit or at his former house in outer suburban Brisbane after she moved there and he moved out. 

[32] The defendant also says that, after he inherited the money from his deceased brother’s estate, he used to help the plaintiff by advancing her small sums of money in the expectation that she would pay them back after she sold her old car or a block of land she owned in Victoria.  She did eventually sell her old car and, he says, paid debts to some other people but not him.  His evidence was that, by the end of 2002, he had advanced a total of about $16,000 to her, she was living rent-free in his house and he had given her free and unrestricted use of a car.  He asked her to give her Victorian property to a charity and he would treat that as repayment of the money he had advanced to her.  He says that she promised to do that but did not do so.  She then told him that she was short of money and would have to declare herself bankrupt.  He proposed to her that she sell the Subaru he had allowed her to use and use its proceeds to improve her financial position.  He offered to buy another car in the name of his investment company and let her use that as long as she continued to provide secretarial help to him and the company.  He then caused the company to purchase a Rover sedan which he allowed her to use.  She sold the Subaru and used the proceeds of about $25,000 for her own purposes.  He treated that as a loan continuing to be owed to him.

The end of the relationship

[33] From about October 2002 the plaintiff’s investment company employed another of his female friends whom he had known for approximately the same period as the plaintiff.  She worked for the company as his personal assistant.  Again he says that she was simply a friend and that they were not in any form of romantic or sexual relationship.  I infer, however, that this arrangement may have caused some difficulties with the plaintiff who, he believed, was then behaving possessively towards him.

[34] Because of his concerns about the plaintiff’s possessive behaviour he asked her to sign some formal documents prepared for him by a solicitor.  That event appears to have precipitated a breakdown in the relationship between the plaintiff and the defendant about Christmas 2002.  Shortly after that he retook possession of the Rover motor car from her. 

Questions of credit

[35] In the middle of January 2003 the plaintiff served the defendant with an application alleging that they were in a spousal relationship and that he had committed domestic violence against her.  That application was heard over four days between 1 May 2003 and 17 February 2004 in the Inala Magistrates Court.  In evidence that reflected poorly on her credit the plaintiff asserted that she asked the magistrate to “lift this order”, meaning that she discontinued the application, although it is clear that, in fact, she had continued to seek a final domestic violence order against the defendant which the magistrate eventually dismissed.  She later brought another similar application which was dismissed by another magistrate on 1 December 2004.

[36] Another issue that significantly affected her credit arose from the fact that from the middle of 1995 to the end of 2002 she received a widow’s pension to which she would not have been entitled had she been living in a de facto relationship. She asserts that she told Centrelink in early 1996 that she had a relationship with the defendant but that she was told at Centrelink that they could not consider her relationship with the defendant as a de facto relationship.  She was unable to produce any evidence from Centrelink verifying that it was told that in 1996.  She did tell Centrelink in early 2004 that she had been in a de facto relationship with the defendant, well after the parties had ceased communicating and after she had been cross-examined in the Magistrates Court about whether she had made any disclosure to Centrelink about her claim of a de facto relationship.  At that stage of the Magistrates Court proceedings she claimed privilege against answering questions that might incriminate her.  Nor did she, before the Magistrates Court, then mention any disclosure said to have been made by her to Centrelink in 1996;  see T75-76.

[37] As a result of what the plaintiff told Centrelink in January 2004, the department  assessed the defendant as owing Centrelink approximately $1,500 as an overpayment for not telling it about a de facto relationship.  He had been paid a pension or a New Start allowance for about 18 months between 1998 and early 2000.  He appealed successfully against that assessment to the Social Security Appeals Tribunal.

[38] The plaintiff has also been asked to repay Centrelink approximately $40,000 on the basis that she should not have been receiving a widow’s pension because of her assertion that she was in a de facto relationship with the defendant during the period she received that pension.  Accordingly, one possible result of this decision, if she were found to have been in a de facto relationship with the defendant during this period, would be that she would owe Centrelink approximately $40,000.

Reputation and public aspects of the relationship

[39] The plaintiff did not call many witnesses as to the reputation and public aspects of their relationship.  The defendant called a significant number of such witnesses.

[40] The manager of the Gold Coast unit, which is one of the places where the defendant now lives, knew the plaintiff and the defendant from December 2001.  The defendant introduced the plaintiff to him and he believed that they presented as a couple on the basis that they were regularly together, regularly dined, left the building and arrived back at it together and spent the evenings there.  That evidence of their comings and goings from the building is consistent with the defendant’s evidence about the nature of the relationship at that stage and the assistance that the plaintiff was giving him in respect of his deceased brother’s estate.  The witness’s belief that they presented as a couple was not supported by any more particular evidence than I have described.  The evidence also covers only a period of approximately one year before the relationship ceased.  Relief under s 287(a) requires the parties to have lived together in a de facto relationship for at least two years. 

[41] The neighbour at the outer suburban house owned by the defendant, where he had lived until about May 2002 when the plaintiff moved there and he moved out, was also called by the plaintiff.  He had seen them off and on for the 10 years he had been living in that suburb and had seen them coming or going from the house, travelling together, going out at nights and weekends and during the week.  He said at T184 ll 8-10 that: “Going back that far I can’t remember exactly but it was quite regular.  It was like a couple of times a week.”  The period to which that evidence related was not pinned down more accurately but, if the conclusion is sought to be drawn from it that the parties were then living together as a couple, it is not consistent with the other evidence that they did not live together at that house.  It may well be a misinterpretation of the events surrounding the defendant’s departure from that house and the plaintiff’s moving into it.

[42] The third witness called by the plaintiff apart from herself was a friend of the plaintiff, if not a very close friend.  They met about 20 years before the trial.  She visited the plaintiff’s home infrequently but had kept in contact to some extent by telephone.  She visited the home where the plaintiff lived between May 1999 and about May 2002 on three occasions.  On none of those occasions was the defendant present.

[43] She then visited the outer suburban home where the plaintiff was living in the defendant’s house in late 2002 and went with her to the Gold Coast unit owned by the defendant to help her celebrate her birthday in late August or early September of that year.  It seems likely that this friend met the defendant on that occasion and again on Christmas day 2002 at the Gold Coast unit.  They drove there from the outer suburban home, where the plaintiff was staying, in the Rover, the use of which had been given to the plaintiff by the defendant.  The plaintiff told her that the car had been given to her by the defendant.  She says that the defendant also told her then that he gave the Rover to the plaintiff.

[44] The plaintiff and this witness stayed at the Gold Coast unit during Christmas day but left before nightfall, leaving the defendant in his unit.  There were other friends of the defendant at the unit on that occasion on Christmas day.  This witness also believed that she had met the defendant in the company of the plaintiff on another Christmas day at least 10 years before the trial and earlier than 1999 when they came to her house for a few hours during an “open house” she held on the day.  Apart from those three occasions she has not met the defendant.

[45] When she visited the Gold Coast unit on Christmas day in 2002 she noticed some of the defendant’s clothes in the main bedroom and says that both his and the plaintiff’s clothes were on the unmade bed in that main bedroom and that toiletries of both of them were in the ensuite.  She had been into the ensuite to have a shower.  She also said that there was a walk-in wardrobe with his clothes on one side and hers on the other side.  She also saw a medicine bottle with the defendant’s name on it in the ensuite at the Gold Coast unit. On another occasion at the outer suburban Brisbane home where the plaintiff lived and which was the defendant’s previous residence she there saw some photos and other personal effects apparently belonging to him.  That was not surprising as it was clear that he had left some of his belongings at that house when he moved out.

[46] There is other evidence from a witness called by the defendant who had stayed at the Gold Coast unit at the same time as the plaintiff stayed there.  His evidence was that she remained on a couch in the living area to sleep at night.  He had known the defendant for 18 years and had only met him with the plaintiff on two occasions when she was introduced as a friend, not a partner.  Nor had he seen any hint of intimacy or mutual affection between them other than that of a common friendship.  Another friend of the defendant who met him in Victoria and had known him for about 23 years stayed with him in Queensland on a number of occasions and met the plaintiff who was introduced to him as the defendant’s “Queensland European friend”.  He says in his affidavit that when he stayed at the defendant’s house in Queensland on various occasions the plaintiff sometimes stayed the night during those visits but he observed that she slept in a separate bedroom and he did not see them acting as a couple.  His memory under cross-examination was lacking in detail. 

[47] There were, however, other witnesses who had known the defendant over a long period including one sister who had not heard of the plaintiff until she went to their brother’s funeral in February 2000.  She lives in Melbourne and had been visited by the defendant on a number of occasions there since 1996.  She said that he never brought the plaintiff with him or said anything to her to indicate he was living with the plaintiff or even having a romantic relationship with her.  Apart from the 50th birthday celebration to which I referred earlier she said that there were other family occasions including a wedding, 21st birthdays and an engagement party which the defendant attended alone.  The family also held an event called the “Balloon Fiesta” in New South Wales at Easter every year.  She said that the defendant attended that every year while their brother was alive and did not ever bring the plaintiff with him. Other evidence established that the only times the parties travelled away together were the trip to Melbourne in 1995 already referred to and another trip to a motor show in Sydney. 

[48] This sister first met the plaintiff during a 10 day visit to Brisbane between December 2001 and January 2002 when the defendant was living in outer suburban Brisbane.  She says that the plaintiff did not stay overnight during that period and had none of her personal items, household effects, clothing, cosmetics or other items in that house.  The plaintiff was introduced to her by the defendant as a friend of the defendant’s.

[49] She has travelled to Queensland on two further occasions since December 2001.  On one occasion the plaintiff picked her up at the airport and she says that she remembers the plaintiff carrying out certain secretarial duties relating to the defendant’s business and that they went out to dinner with her and a friend of hers.  She also prevailed on her brother to allow the plaintiff to stay at the Gold Coast apartment one night during that visit when the plaintiff slept on a couch.  She saw no signs of intimacy or physical affection between them, unlike the plaintiff’s friend who said that she saw them “teasing each other with funny nicknames, kissing and cuddling and cooking together”.  That friend of the plaintiff also observed, however, that the last time she saw them together in Christmas 2002 the relationship seemed rather strained. 

[50] Another sister of the defendant also gave evidence.  She lives in Adelaide and has been visited there by the defendant on various occasions unaccompanied by the plaintiff.  He did not speak of the plaintiff to her as his partner in any of their conversations.

[51] Another significant witness was a lady who has known the defendant since 1989 when they lived in adjoining units.  She visited him in Queensland from Victoria about three times a year and has stayed with him at his various suburban homes, his inner city unit and his Gold Coast unit but had not seen any evidence that he lived with a woman.  The defendant never brought a woman with him to Melbourne on his regular trips there to her knowledge.  She did not hear of the plaintiff until 1999, when she met her in Melbourne on a number of occasions without the defendant and was told by her that “she desperately wanted to live with [the defendant] but that he kept pushing her away”. 

[52] In September 2002 she travelled to Brisbane with the defendant’s sister when he was ill and went out to a restaurant with the plaintiff, the defendant and the defendant’s sister.  She and the plaintiff left the brother and sister together to talk at one stage and went for a walk.  The plaintiff then told her that she would be devastated if the defendant died.  The plaintiff also told her that the plaintiff would have a claim on the defendant’s estate in those circumstances.  Most significantly the plaintiff told her that, if she “did the right thing” by supporting the plaintiff, she, the plaintiff, would ask the defendant to pay the witness’s veterinary fees of $5,000.  She was challenged in cross-examination on those issues but not shaken in the least.  I believed her evidence on this and the other issues of which she spoke.  She also witnessed no emotional or physical relationship between the plaintiff and the defendant.

[53] The manager of the inner city unit block in which the defendant also has an apartment has known him since 2001 and has only seen him in the company of one woman, not the plaintiff.  The only time he has spoken to the plaintiff was late one night in a telephone conversation when the plaintiff told him her name and asked him to go and knock on the defendant’s door to see if he was alive.  Otherwise he has never spoken to the plaintiff or met her, nor allocated her a key to the defendant’s apartment.  He did not see the defendant particularly often, perhaps once a week or once a fortnight.  His evidence was inconsistent, however, with the plaintiff’s claim to have been a frequent visitor to that inner city unit.

[54] Another minister of a church to which the defendant belonged also gave evidence.  He visited the defendant at his home in outer suburban Brisbane on a fairly frequent basis between January 1999 and December 2002.  His observation was that the defendant was the only occupant of the house.  Nor did he see any personal belongings or other items that could have belonged to a woman.  The first time he met the plaintiff was at the Wesley Hospital when the defendant had been admitted there for a suspected heart attack.  She was then introduced simply as a good friend.  He saw the plaintiff more frequently after she moved into the outer suburban house previously occupied by the defendant.  He used to give church notices to her which he asked her to pass on to the defendant.  He observed no sign of the defendant’s presence at the house at that stage.  He saw nothing to indicate any romantic relationship between the plaintiff and the defendant, nor was he told anything to that effect by either of them. 

[55] The plaintiff’s former solicitor was also called to give evidence by the defendant.  The effect of his evidence was that the defendant was unfamiliar both with the plaintiff’s telephone numbers and how to get to her residence.  He observed nothing and heard nothing from either the plaintiff or the defendant that caused him to consider that they were in a de facto marital relationship or that they were a couple in the time that he had dealings with them.  His retainer for the plaintiff related to matters arising out of the breakdown of her former marriage.  The plaintiff claimed legal professional privilege in respect of any communications between her and her former solicitor but I draw no adverse inference from that fact; see Cross on Evidence at [25040].

[56] The builder who built a house in 2002 for the defendant also gave evidence.  He had limited contact with the plaintiff during that period.  He was introduced to her by the defendant as “a friend”.  She had no input into any discussions between him and the defendant in relation to the building of the house.  Nor did she attend any social events with the defendant such as corporate race days or lunches in the city which he attended with the defendant. This is probably not surprising. Another builder was engaged by the defendant to supervise the refurbishment of his inner city unit.  He met the plaintiff when he did some alterations to the bathroom at the outer suburban house in which the defendant had previously lived and where the plaintiff was then living in about April 2002.  The plaintiff was not involved in any way, on his evidence, in the refurbishment of the inner city unit.

Were the parties de facto partners?

[57] The relevant part of the definition of “de facto partner” in s 32DA of the Acts Interpretation Act is as follows:

32DA Meaning of de facto partner

(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.”

[58] On my review of the evidence dealing with their residences, the length of their relationship and the extent to which it included a sexual relationship, the conclusion I draw is that there was a brief period in the second half of 1995 when the plaintiff and the defendant were engaged in a sexual relationship which probably extended intermittently up to the latter part of 1996.  If it had extended in any significant form beyond then I would have expected the relationship to have been known to the minister who began mentoring the defendant in the latter part of 1996. The parties remained friends until the end of 2002 or the beginning of 2003.  At no stage did they live together and their sexual relationship did not persist to such an extent as to permit me to treat them as de facto partners.

[59] There was some evidence of financial support provided by each to the other at various stages of their friendship but it was limited support and normally expressed in terms requiring repayment and inconsistent with financial dependence or interdependence between them. There was some intention at one stage by the defendant to leave a bequest to the plaintiff in his will but he expressed similar intentions in respect of a number of friends.  He also gave her a power of attorney but that is explicable from their friendship and his lack of close relatives in Brisbane.

[60] They did not acquire or own property in common.  The plaintiff has used the defendant’s property, including cars and a house owned by him.  After he received his inheritance he was in a position to be generous to his friends. Initially, he allowed her to use the house rent-free but it is now occupied by her against his wishes.

[61] The issue described as the degree of mutual commitment to a shared life, including the care and support of each other, again did not extend beyond the support and care that good friends supply to each other.  It may be that the plaintiff perceived the relationship differently from the defendant but the sub-section requires mutuality and it seems clear to me that the defendant was never committed to a shared life, the “one metre rule” being perhaps the most obvious expression of his sentiments.

[62] They have had no children although there was limited evidence from the plaintiff that she suffered an ectopic pregnancy at an early stage of their relationship.  There was a little evidence about the performance of household tasks but nothing to take that out of the range of the normal behaviour of friends towards each other.

[63] On balance the evidence of the reputation and public aspects of the relationship was clearly against the conclusion that they were de facto partners.  The building manager and neighbour called by the plaintiff could give only very limited evidence of her comings and goings with the defendant.  The period dealt with by the building manager was only one year and that dealt with by the neighbour was unclear. 

[64] The evidence called for the plaintiff from her long-standing friend that related principally to the affection that the parties displayed to each other and her observations of clothing and toiletries in the same bedroom and bathroom at the Gold Coast unit appears more significant.  When analysed, however, it is not persuasive. One of the occasions must have been near the beginning of the relationship as it was referred to as Christmas at least ten years before the trial.  That suggests it was Christmas 1995 when the relationship may well have been still as romantic as she inferred.  Even then she saw them together for only a brief period at an open house she organised. The other occasions were late in the relationship in August and at Christmas in 2002 and consisted of relatively brief visits to the defendant’s Gold Coast unit during the day.  She also gave evidence of the alleged gift of the Rover, which the defendant denied.  There was no reason to disbelieve her observations of the clothing and toiletries; the defendant was visiting the unit regularly then.  There may also have been a misunderstanding of the nature of the gift in respect of the Rover, whether it was of the property in the vehicle or merely its use, but it is a long way from those observations to the conclusion that there had been a de facto relationship between the parties extending over more than two years.

[65] When that witness’s evidence is weighed against the other evidence covering a much longer period of the relationship, from many other witnesses who were apparently truthful and disinterested, my conclusion is that there was no such relationship.  In other words the plaintiff has failed to discharge the onus she bears of persuading me that the relationship she asserted actually existed.

[66] Mr Forrest, for the defendant, submitted, in particular, that one of the plaintiff’s answers in cross-examination illustrated the true nature of the relationship.  The passage was at T107 ll18-28:

“You wouldn’t have had to pay rent on another house if you had been living in Scarlet Place, Forest Lake with Mr H-J as his de facto wife? – He would have had all my income as well as.

Yes, but you wouldn’t have had to pay the rent, would you.  It’s an outgoing you wouldn’t have had to have? – I only would live with him if we were married in the same house.

Oh, yes? – Because that was our intention and I would have brought in my assets and my abilities and my work.”

[67] His submission was that the plaintiff’s answers suggested that in her own mind there was a clear distinction between the nature of the relationship she had with the respondent and what it would have been if they were actually married.  He submitted that “she clearly considered the degree of mutual commitment to a shared life together as vastly different to what it would be if the two were married.”  His submission went on to the effect that the plaintiff could not then say “with any conviction that she and the respondent had actually ‘so merged their lives that they were for all practical purposes, living together as a married couple’.”  In that context he referred to Thompson v Department of Social Welfare [1994] NZLR 369, 374 and Mao v Peddley [2001] NSWSC 254 at [54]-[57].

[68] There is a deal of strength in that submission, as the answers suggest that the plaintiff distinguished in her own mind between marriage and the relationship she had with the defendant and equated “living together as a couple on a genuine domestic basis” with marriage.  Essentially, however, the plaintiff has failed to prove, where the onus lies on her, that she and the plaintiff did live together as a couple on a genuine domestic basis.

[69] It seems to me that this is a case where the plaintiff has, perhaps, deluded herself into making more in her own mind of the relationship than was reflected by reality.  The less charitable view is that she has deliberately misstated the evidence with a view to gaining a pecuniary advantage, particularly after the defendant came into his inheritance from his brother.  The evidence from the defendant’s witness who was offered support for the payment of her veterinarian’s fees if she “did the right thing” by supporting the plaintiff supports that view.  The plaintiff’s evasive evidence about her Magistrates Court proceedings and her dealings with Centrelink also reflected poorly on her credit generally.  I did not regard her as a reliable witness at all.  In my view there was no de facto relationship between the parties at any stage.  At the most there was an affair that quickly petered out and became a friendship.

Did the plaintiff make substantial financial contributions?

[70] Nor has the plaintiff established any entitlement to a property adjustment order on the basis that she has made substantial contributions of the kind mentioned in s 291 or s 292 of the Property Law Act.  Her involvement in the successful action against the defendant’s insurer and in his obtaining a share of his deceased brother’s estate was marginal.  It involved driving the defendant to his solicitors in northern New South Wales on a couple of occasions and assisting him with correspondence in respect of his deceased brother’s estate where his entitlement was already dictated by the fact that he had died intestate.  She has also benefited from free use of cars provided to her by the defendant and free accommodation in his house.  There is no serious injustice to her in any failure to make a property adjustment order.  On the defendant’s evidence, which I accept, she continues to owe him money lent to her.  She also has a motor vehicle purchased with funds sourced from the sale of the Subaru that the defendant bought and allowed her to use.

Decision

[71] Accordingly the application should be dismissed.  I shall hear the parties further as to costs.

Close

Editorial Notes

  • Published Case Name:

    K v H-J

  • Shortened Case Name:

    K v H-J

  • MNC:

    [2006] QSC 168

  • Court:

    QSC

  • Judge(s):

    Douglas J

  • Date:

    07 Jun 2006

Litigation History

Event Citation or File Date Notes
Primary Judgment [2006] QSC 168 07 Jun 2006 Douglas J.
Appeal Determined (QCA) [2006] QCA 489 [2007] 2 Qd R 32 24 Nov 2006 Appeal dismissed: McMurdo P, Keane and Holmes JJA.
Special Leave Refused [2007] HCATrans 556 03 Oct 2007 Gummow and Kiefel JJ.

Appeal Status

{solid} Appeal Determined - {hollow-slash} Special Leave Refused (HCA)