JJR v PH[2005] QSC 253

SUPREME COURT OF QUEENSLAND

Issues

[1] The applicant (“R”) seeks a declaration pursuant to s 317 of the Property Law Act 1974 (“the Act”) that he and the respondent were not in a “de facto relationship” within the meaning of that expression in s 261 of the Act after 21 December 1999.[1] By her cross-application, the respondent (“H”) seeks to have it determined that the parties resided in such a relationship between March 1987 and 27 February 2005.

[2] R is 61. H is 57. When they first met, in Perth in 1986, both were divorced. A sexual relationship between them soon began. By March 1987, they were living together at H’s unit in Perth. When this hearing began more than 18 years later, they were still under the one roof.

[3] On R’s case, their cohabitation was never a “relationship between de facto partners”.[2] H, however, contends that they were “living together as a couple on a genuine domestic basis”[3] from the time they started to live together in Perth until February this year, when R’s solicitors wrote asking H to vacate the house.

Troubles from the start

[4] From the outset, there were tensions. The relationship between R and H has always been, as H’s son encapsulated it, “tumultuous”.

[5] In about mid-1987, after acrimonious exchanges, R left H’s unit and moved into a nearby caravan park. After a few months there, he occupied a house with someone else. During this separation, R continued to see H regularly. They went out socially together; and there was periodic sexual activity between them.

[6] In October 1988, R returned from Western Australia to live at his house at Stretton. Two months later, H joined him there, bringing a “house full” of furniture and other property of hers. R paid her relocation expenses.  They intended to repair their relationship, and to live together at R’s Stretton house.

Early Brisbane days

[7] At Stretton, the relationship continued to be punctuated by episodes of verbal abuse, with both of them trading insults. There was occasional violence. At least one court order to restrain domestic violence was obtained by H against R before she left the house in 1990 after what she calls a particularly “rough patch”.

[8] H lived apart from R, in Auchenflower, for about a year from April 1990, except for a fortnight or so when R joined her in an unsuccessful attempt to resume a life together. During this separation, R, who had told H that he understood why she needed to be away from him for a time, contributed to the rent she paid.

[9] By the end of 1992, the parties were back together at Stretton. At about this time, R purchased, in his name only, a house at Bardon. Before the acquisition, they had inspected the house together, and they had in mind renovating it as a place where they would live. 

[10] The parties lived apart while the renovations proceeded. The details of where they were, and when, are controversial. According to H, R went to live in a house at McDowell that he had bought from his mother, while H, who did not want to leave the Bardon area, took a unit at Simpson’s Road. She says that, after the lease on that unit expired, she went to live with R in Moonya Street, Bardon, to which he had moved after selling the McDowell house. According to R, however, the parties lived separately throughout the renovations.[4] But this much is clear, if not common ground: that while they lived apart, R and H saw each other often. Typically, they would spend the weekends together, when sexual intimacy continued. Contacts between them were peppered with arguments, often involving physical expressions of aggression. Nonetheless, they both regarded the separation as a state of affairs that would end with the renovations. They expected to resume cohabitation in the Bardon house once it was fit to occupy.

[11] In late 1995, after about a year of living apart, the parties moved into Bardon. By this time, H had not worked full-time for more than seven years. She had lost her job in April 1988. Since then, most of her income has been derived from welfare payments: initially, unemployment benefits; and from 1990, a disability pension.

Economics of the association

[12] From their time in Perth, the parties dealt with their incomes separately, maintaining their own bank accounts. They also kept the legal estate in their assets distinct. But they shared household expenditure. R paid his share of the bills. H contributed cash and, through doing most of the work in and around the house, in kind. They used many of their assets in common: such as house and furniture.

[13] At Stretton, the parties implemented an arrangement for sharing expenses such as the cost of food and other household expenses, and outgoings associated with the house. H had relatively poorly paying work; but her welfare benefits enabled her to contribute $75 weekly, which was their joint estimate of her half of the cost of maintaining the household, after allowing for the value of her work in and around the house. Then, as with all the other times when the parties have lived under the one roof, H carried out almost all of the housework.

[14] By late 1995, H earned a little from part-time work. Most of her income, however, continued to be sourced in disability benefits (and ancillary rental assistance), from which she paid $75 or $85 weekly towards household expenses. In short, the kind of financial arrangement that had been put in place in Perth was still in operation at Bardon. She did the cooking, and most of the cleaning and maintenance. She tended the garden. R, who worked long hours, typically six days a week, did a little yard work. Sexual relations continued, regularly. So did the fights.

Marriage proposals

[15] In 1996, R asked H to marry him. She declined. She had been married before, and would not marry again. He could not accept that her unwillingness to marry him was nothing personal. And from his perspective her reluctance to make the public commitment to a future with him that marriage would have involved made their relationship less satisfying. Though disappointed by the rejection, R persisted with a relationship which by then had endured – off and on – for more than eight years.

[16] H regretted the time R spent at work. She thought it was not in the interests of either of them. She found other fault in him: one of her grievances was that he would not use a deodorant. But H kept looking after the household, kept paying her $75 or $85 weekly, sexual activity continued, and the parties conducted themselves with H’s family and with neighbours as if they were a couple – the image which, until a few months ago, they have always intentionally presented to others when living at the same place.

[17] In early 2000, the parties were on holiday together in Perth when R proposed again. Once more, he was rejected. Harsh words were exchanged. R was thoroughly dejected. He had remained anxious for a demonstrated commitment by H to the permanence of their relationship. Even so, things returned to what for the parties was normal.

[18] The strife that had characterized the relationship since its inception more than a decade earlier continued. But whether despite the battles or because of them, R and H remained together in a domestic relationship which in 2000 looked as though it would subsist indefinitely. Dissatisfied though they were, the parties apparently considered that such as they had was preferable to separation. Before long, however, R’s festering resentment at his second rejection found an outlet.

R looks abroad

[19] About six months after the second proposal, R bought a computer. He was soon in contact with women on the internet, engaging electronically in “romances”, as he calls the exchanges of communications. This activity was largely kept from H until 2003. In the meantime, things went on much as before. The same division of labour continued. Financial arrangements remained unchanged. Sexual relations subsisted. No family members or neighbours detected a change: outwardly, the parties still presented as a couple. In 2001, for example, they went on holidays together: to Noosa and to Perth.

[20] In 2003, R decided to travel to Kazakhstan to meet a woman he had encountered over the internet. H, who knew why he was going, drove him to the airport. While he saw the trip as an adventure, she regarded it as a middle-aged folly that R would soon regret rather than as a threat to their relationship. Before he departed, R made a new will, leaving everything to H.

Surviving Kazakhstan

[21] As R had expected, H remained at home at Bardon, looking after the place and their cat, while he was in Kazakhstan. He sent her postcards, writing “love you” near his signature. On arriving, he wrote to H, “I already miss you …”. Another card expressed the hope that both H and their cat “miss me a little”.

[22] Just as H had anticipated, on returning to Australia after a three week absence, R acknowledged that the Kazakhstan visit had been a mistake. Straightaway, they resumed sexual intimacy. The economic aspects of their relationship remained the same: she continued to contribute, in cash and in kind, to household expenses, performing the same domestic duties for the two of them. She drove a car registered in his name, paying the running expenses. She used a credit card he had provided for expenditure that benefited both: such as household goods and plants, as well as gifts for R’s mother, for children of friends, and for H’s granddaughter. The fights, of course, persisted, with R frequently getting so angry that he told H to get out of his house: the same sort of abuse he had often used over the years.

Sex stops

[23] On 13 July 2004, H denied R’s request for sexual intercourse. He responded with rage and harsh words. Since then, she has slept alone in the second bedroom, and there has been no sexual activity between them.

[24] The cessation of sexual relations did not affect H. On her side, things went on as before, within the household and to all outside appearance. But it did enhance R’s disaffection.

New relationship prompts odd letter

[25] R admits to a high libido. Once the sexual element of his relationship with H disappeared, his internet romances assumed more importance. By early 2005, R was emotionally entangled with a woman in Canada.

[26] On 28 February, R’s solicitors wrote to H insisting that she vacate the Bardon house because of “a change to our client’s circumstances” – his desire to install the new woman. The letter, headed “Tenancy Matters”, contended that H paid $85 per week from her rental assistance benefit and supplied her housekeeping services as her “lodging expenses”. It included an offer to assist with removal costs and bond money, “because you and our client have been friends over a number of years”.

[27] This letter was the first distinct manifestation of R’s complete withdrawal from the relationship with H. Since mid-July 2004, the relationship had been under more than usual stress. The missing sexual aspect aside, however, the incidents of their association had lingered on until the letter: socially and financially, things had drifted along much as before, with some mutual commitment, which included H’s caring for R after his hip replacement in December 2004.

R’s arguments

[28] R contends that there has never been a “de facto relationship” with H. Although in testifying he disavowed the landlord and tenant case asserted in the solicitors’ letter, he characterizes the relationship as nothing more than a cost-sharing arrangement that suited H because she could not live as comfortably elsewhere for the money she paid and the non-financial contributions she made. He sees her refusals to marry him as evidencing an absence of the emotional commitment that he considers ought to attend a truly de facto partnership. And, although he admits to an infatuation with R that afflicted him from 1986, he tries to explain her living with him over many years as an unwelcome state of affairs that he was obliged to endure because, despite periodic requests, she would not leave.[5]

[29] R’s attitude confuses an unsatisfying, often unhappy, de facto relationship with the absence of one.

Extent of the relationship

[30] After H joined R at Stretton until the end of February this year, the two of them lived together in a “de facto relationship”, except for about a year (i) from May 1990 (apart from a strife-filled fortnight); and (ii) in 1994/1995 during the renovations. Those separations were so prolonged that the parties cannot be taken to have been “living together” during them.

H’s account preferable

[31] This view of the facts involves a preference for the evidence of H.

[32] The recollections of the parties vary considerably. There are good reasons to hesitate before accepting the evidence of either of them. Each now bears hostility towards the other. And their perceptions are no doubt influenced by the extent to which emotion had intruded. H, however, seemed to have a better memory; and her evidence more accords with such proved facts as the holidays together in 2000, 2001 and Easter 2004, the affectionate postcards, and the contents of the 2003 will,[6] as well as sexual activity until mid-July 2004.

[33] The only difficulty is whether the “de facto relationship” ceased in mid-July last year, or else with the solicitors’ letter eight months later.

[34] In S v B,[7] Dutney J, with whom McPherson and Williams JJA agreed, said:[8]

“…a de facto relationship ends when one party decides he or she no longer wishes to live in the required degree of mutuality with the other but to live apart. It does not seem to me that it is necessary to communicate this intention to the other party providing the party that is desirous of ending the relationship acts on his or her decision. I do not think it is necessary that the other party agree with or accept the decision. Once the parties cease to jointly wish to reside together in a genuine domestic relationship, a situation usually ascertained by looking objectively at the whole circumstances of the relationship, the de facto relationship ceases. The relationship ceases even though one party is still anxious to try to save it.”

[35] Soon after the cessation of sexual relations, R decided that the relationship with H was so miserable and unsatisfying that he must be able to do better: hence his increased internet activity to find someone new. The bitterness over the rejection of his marriage proposals and then H’s evident unwillingness to sleep with him probably persuaded him that H bore him no affection, and that there was little, if any, hope that things might improve. But if that was his attitude, he did not communicate it to H, directly or indirectly. She continued buying his food, cooking the evening meal for both, washing, and performing the other household tasks that he had for years accepted were her lot. She still contributed money and services to the joint household; and she provided some care to him after his hip surgery. She was not just the lodger. His commitment to the relationship had diminished. But he did not altogether withdraw from it until the end of February this year with the solicitors’ letter. In these circumstances, it is not surprising that it was not actually suggested for R that, if a de facto relationship subsisted at the beginning of 2004, it had finished before late February this year.

Disposition

[36] The application must be dismissed.

[37] On the cross-application, there will be a declaration for the existence of a de facto relationship.

[38] I will hear the parties with respect to the form of order and costs.