KQ v HAE[2006] QCA 489

SUPREME COURT OF QUEENSLAND 

[1]  THE COURT: The appellant claimed a property adjustment under the provisions of pt 19 of the Property Law Act 1974 ("the PLA") on the basis that she and the respondent had lived together in a de facto relationship for a number of years and that she had made substantial contributions of the kinds mentioned in s 291 and s 292 of the PLA.

[2] The appellant's case was that she and the respondent were in a de facto relationship from 1995 until the end of 2002.  The respondent acknowledged that the parties were involved in a sexual relationship which cooled over time to a relation of friendship which terminated acrimoniously at the end of 2002 or early 2003. The learned trial judge rejected the appellant's evidence as unreliable and accepted the evidence of the respondent and the witnesses called by him.  He dismissed the appellant's claim and ordered that she pay the costs of the action.

[3] The appellant, who was unrepresented both at trial and on appeal, sought leave to adduce further evidence on the hearing of the appeal; that application was refused on the footing that the material could have no bearing on the issues in the case.  The appeal itself involved a number of rather diffuse arguments as to error or bias by the learned trial judge, some of which were based on a misapprehension either of what had occurred or what his Honour had actually said. 

[4] The appellant’s first ground of appeal was that she had “perceived … in the beginning of the trial, that the judge had already reached a conclusion”.  When pressed to explain that ground, the appellant said that this was an impression she had formed because the learned judge told her that if she wanted to rely on transcripts from the Magistrates Court she would have to obtain them and produce them to the court.  In addition, counsel for the respondent had indicated that he would object to any tender of those transcripts.  She did not in fact obtain the transcripts or seek to tender them, but that experience made her feel that she would not get a “fair go”. 

[5] In essence, the appellant appears not to have understood that it was not part of the court’s function to obtain documents for her and that the respondent was entitled, in any event, to take objection to documents she wanted to tender.  The argument as to pre-judgment then evolved into one that the judgment itself was slanted because the judge had made a number of comments adverse to the appellant.  Those comments were made in reference to the evidence given at the trial and were open on it.  Self-evidently, they could hardly demonstrate that the judge had already reached a conclusion at the start of the trial.

[6] A major complaint by the appellant was that she had not had access to documents subpoenaed from a life insurance company which had made a payout to the respondent.  The appellant seems to have formed the idea that the trial judge himself had the documents but had withheld them from her, a view which seems to have come from her misreading of the transcript.  The background was this: the appellant had subpoenaed the documents but they had not arrived.  His Honour caused enquiries to be made with the Registry and suggested to the appellant that she contact the parties subpoenaed and ask whether they had sent the documents in.  By the end of the appellant’s cross-examination, they had still not arrived. This exchange ensued between the appellant and the judge:

“HIS HONOUR:  They haven’t come in yet? --- Well, in that case maybe I can use what information I have.  I have copies of Lumley Life Insurance.

Have you pursued it with them? --- Yes, I have, but not yesterday.

Why don’t I give you leave to – well, I don’t have to give you leave but I will allow you to be recalled to give further evidence, if necessary, in respect of any issues arising out of documents you have subpoenaed that have not yet arrived.  Let’s just deal now with what we can deal with? --- Yes, your Honour.”

The appellant asserts that the person who said “maybe I can use what information I have.  I have copies of Lumley Life Insurance” must have been his Honour, because she did not have any such copies.  It may be that the appellant in fact was mistaken at the time in saying that she had those copies or now has forgotten that she did.  But apart from the inherent unlikelihood of his Honour somehow having come by the life insurance documents, it could not be clearer from the transcript that the answer was the appellant’s in response to his Honour’s enquiry.

[7] It is plain, therefore, that the appellant’s submission is misconceived.  In any event, the significance of the life insurance documents is by no means clear.  The appellant seemed primarily concerned, both here and at first instance, with how information about the state of the respondent’s health might affect the operation of a Power of Attorney he had given her, operative in the event of his incapacity.  That had nothing to do with the issue of whether they were in a de facto relationship. Eventually she said that she thought the documents might have shown he was not reliable, thus affecting the court’s view of him; a speculative and dubious proposition, to say the least.

[8] In a similar vein, the appellant complained that she had subpoenaed solicitors to produce “codicils” executed by the respondent, which left her large amounts of money and property.  The respondent agreed with the existence of some such document, to this extent: when he was hospitalised in 2002, he had written in a diary some instructions as to financial gifts he wished to give to various people, including the appellant.  Those instructions do not appear, on any version, ever to have been formalised. The appellant said the respondent had the diary and the respondent said the appellant had it.  Neither, apparently, was successful in obtaining it.  But his Honour accepted secondary evidence from the appellant as to the content of the “codicils”.  Consequently, there seems no basis for complaint about his Honour’s handling of that issue.

[9] The appellant submitted that the learned trial judge could not have adequately considered some 585 documents on which she wished to rely.  On further enquiry that proved to be unsurprising, because most of them were not tendered.  The appellant maintained that she had put before the learned judge a list of documents referring to these documents, and had been given to understand that she could rely on all of them.  An examination of the transcript shows that the appellant did indeed put a list of documents before the judge which referred to every affidavit and exhibit relied on in a series of interlocutory applications, the number of which may well have amounted to 585.  His Honour, however, in a valiant attempt to confine the material to that which related to the issues, prevailed on the appellant to indicate which documents were relevant; she eventually identified two affidavits she considered necessary.  There was nothing to suggest that his Honour overlooked any vital document in the material thus relied on, and there plainly was no basis for the appellant to suppose that anything not tendered beyond that material and her principal affidavit would be before the judge.

[10]  More generally, the appellant complained of the learned judge’s adverse finding as to her credit in respect of her representation of what had occurred on a Domestic Violence Protection Order application in the Magistrates Court and her dealings with Centrelink.  The background was that in her affidavit the appellant said that she had asked the court to lift an interim order which had been in place; but what had actually happened was that the appellant’s application for a final order was dismissed.  She explained, under cross-examination at the trial, that there had been a misunderstanding: when she asked for a final order in the Magistrates Court she meant that she wanted the matter finalised by the discontinuation of the proceedings.  His Honour was entitled to take an unfavourable view of that evidence. 

[11]  Other evidence was to the effect that the appellant had received a widow’s pension at a time when she was, on her assertion, in a de facto relationship with the respondent.  She maintained that she had advised Centrelink of the relationship but had been assured that it was not considered to be a de facto relationship.  There was, however, no documentation of that exchange.  The rules had since changed, the appellant explained, and in 2004 Centrelink changed its view and levied an overpayment against her on the basis of her relationship with the respondent.  The respondent’s contention was that it was only after the appellant was cross-examined in the domestic violence proceedings in 2004 as to how, consistently with her claim of a de facto relationship, she could receive the pension, that she had made any disclosure to Centrelink.  His Honour clearly enough accepted the latter interpretation of the appellant’s actions.  He was entitled to do so.

[12]  More generally, the appellant complained that the learned judge had not given enough weight to the existence of the Power of Attorney, the respondent’s expressed testamentary intentions, the existence of the Domestic Violence Protection Order (albeit, it seems, only ever in interim form) and Centrelink’s ultimate finding that a de facto relationship existed.  Those pieces of evidence were not all, for reasons already discussed, compelling.  More importantly, it is abundantly clear that, even if this Court were disposed to take a less critical view of the appellant’s evidence at trial than was taken by the learned trial judge, that evidence failed to establish a basis for relief under the PLA.

[13]  In this regard, it was no part of the appellant's case that she and the respondent ever lived together in one household.  In cross-examination, the appellant acknowledged that she and the respondent maintained separate households.  She said that she "only would live with him if we were married in the same house".  That acknowledgment reflected the absence of essential characteristics of a "de facto relationship", as that term is described for the purposes of claims under pt 19 of the PLA.

[14]  Section 261 of the PLA provides that "a de facto relationship is the relationship between de facto partners".  The term "de facto partner" is defined by s 32DA of the Acts Interpretation Act 1954 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.

(5) For subsection (1)—

(a) the gender of the persons is not relevant; and

(b) a person is related by family to another person if the person and the other person would be within a prohibited relationship within the meaning of the Marriage Act 1961(Cwlth), section 23B, if they were parties to a marriage to which that section applies.

(6) In an Act enacted before the commencement of this section, a reference to a spouse include s a reference to a de facto partner as defined in this section unless the Act expressly provides to the contrary."

[15]  Section 260 of the PLA provides:

"Extended meaning of de facto partner for pt 19

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

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

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

(2) Subsection (1)(b) applies despite the Acts Interpretation Act 1954, section 32DA(6)."

[16]  It can be seen that the legislation does not provide a precise test for the existence of a de facto relationship.  None of the matters listed in s 32DA(2) of the Acts Interpretation Act is necessarily of decisive significance.  Nevertheless, to the extent that those matters are identified as relevant considerations, the ultimate issue to which they are directed is whether the parties are “living together … on a genuine domestic basis".  This phrase necessarily draws attention to whether the parties are living, or have lived, together to maintain a household. 

[17]  It is also instructive that the PLA describes the relationship as that which exists between "de facto partners".  The expression "de facto partners" evolved as both a comparison and a contrast with the relationship of marriage.  A "de facto relationship" was, in ordinary parlance, a relationship which exhibited the characteristics of mutual commitment familiar in the relationship of marriage, save for the solemnities involved in the formal exchange of wedding vows between a man and a woman. 

[18]  Obviously, the scope of the expression "de facto relationship" in pt 19 of the PLA is not strictly limited by the genesis of the expression in popular speech.  For example, the provisions of pt 19 are not confined to relationships between men and women.  Nevertheless, the nature of the association involved in the marriage relationship is instructive in this context.  It is clear from s 32DA(4) of the Acts Interpretation Act that pt 19 of the PLA is not concerned with the relationship between people who merely live in the same household and share living expenses: the PLA is not concerned with the relationship between friends who share a household, or with that between carer and patient. Further, the fact that two people have a sexual relationship will not suffice to establish that they are "de facto partners".  This is clearly so, by reason of the fundamental requirement that the parties must be "living together as a couple on a genuine domestic basis".[1] 

[19]  These considerations all lend support to the view taken in earlier cases that a "de facto relationship" will not be established for the purposes of pt 19 of the PLA unless it can be seen that "the parties have so merged their lives that they were, for all practical purposes, living together as a married couple".[2]

[20]  It may also be accepted that a continuing cohabitation in a common residence is not necessary to establish the continuation of a "de facto relationship", at least where the parties have lived together and have not effected a permanent separation.[3]  Nevertheless, the definition of "de facto relationship" suggests that, usually, the parties should have, at some stage, been "living together as a couple on a genuine domestic basis".  The fact that the parties have never lived together in a common abode must be acknowledged to be an indicator that they have not "lived together as a couple on a genuine domestic basis".  This indication will be especially significant where the parties have not shared the common burden of maintaining a household.  It would be a wholly exceptional case in which one could conclude that a man and a woman, who have never lived together as husband and wife in a common residence, and who have never made provision for their mutual support, have been "living together as a couple on a genuine domestic basis".  That conclusion is not justified by the mere circumstance that the parties, or one of them, at some stage, intended eventually to marry.  Such a case is one where friendship, or even courtship, has not matured into the commitment whereby the parties have so merged their lives that they were, for all practical purposes, living together as a married couple.

[21]  For these reasons, we consider that the appellant cannot establish that she and the respondent were ever "de facto partners" within the meaning of pt 19 of the PLA.  On the appellant's own case, she and the respondent never lived together as a couple on a genuine domestic basis.  As she herself acknowledged, they never "so merged their lives that they were, for all practical purposes, living together as a married couple".[4]  Those difficulties were fatal to the case she sought to make.

[22]  As to that aspect of the appellant's case based on her contributions, at the highest for the appellant it can be said only that she provided him with assistance in litigation in which he was involved, of a kind entirely explicable by a relation of friendship between the parties.

Conclusion and order

[23]  The appeal should be dismissed.

[24]  Section 341 of the PLA provides for each party to a proceeding brought under Pt 19 of that Act to bear his or her own costs in the absence of circumstances justifying a costs order. In this case, the learned trial judge found that the appellant’s application was without foundation or merit so that an order for costs against her was justified, and he duly made such an order. The appellant attempted to appeal against that order, but did not, as s 253 of the Supreme Court Act 1995 requires, obtain leave to do so from the judge who made it.  The appeal against costs is, therefore, incompetent.  It must be dismissed.

[25]  The substantive appeal to this Court is brought under s 69(1) of the Supreme Court of Queensland Act 1991, and is not a proceeding under pt 19, so that s 341 has no application. Even if that were not so, the appeal was so without merit as to warrant an order that the appellant pay the respondent's costs of the appeal.

[26]  Orders:

1. Appeal dismissed.

2. Appellant to pay the respondent’s costs of the appeal.