Allenby and Kimble

[2012] FamCA 614

FAMILY COURT OF AUSTRALIA

ALLENBY & KIMBLE [2012] FamCA 614

FAMILY LAW – DE FACTO RELATIONSHIP – where the parties seek competing declarations pursuant to s 90RD – where the applicant seeks a declaration that he and the respondent were not in a de facto relationship – where the respondent seeks a declaration that their relationship did meet the statutory criteria for a de facto relationship – where parties were in a “relationship” for approximately 10 years – where the parties lived together for almost half of that time – where the parties did not share ownership of any property – where the parties did not pool resources – where the parties attended family events together and spent time with each other’s family – where the parties travelled together – whether the parties were in a de facto relationship – where the parties were in a de facto relationship.

Evidence Act 1995 (Cth)

Family Law Act 1975 (Cth)
Property Law Act 1974 (Qld)

Dahl & Hamblin (2011) 46 Fam LR 229
Jonah & White (2012) 45 Fam LR 460
Jones v Dunkel (1959) 101 CLR 298
Mallett v Mallett (1984) 156 CLR 605

APPLICANT: Mr Kimble

RESPONDENT: Ms Allenby

FILE NUMBER: BRC 1989 of 2011

DATE DELIVERED: 2 August 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 10 – 11 July 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Galloway

SOLICITORS FOR THE APPLICANT: Cartledge Law

COUNSEL FOR THE RESPONDENT: Mr Looney

SOLICITORS FOR THE RESPONDENT: Swanston & Associates Lawyers 

Orders

1. The Application in a Case filed by the Applicant on 16 December 2011 is dismissed.

2. That pursuant to s 90RD of the Family Law Act 1975 (Cth), the Court declares that:

   (a)a de facto relationship existed between the applicant and the respondent; and

   (b)the period, or the total of the periods, of the de facto relationship is at least two years; and

   (c)the de facto relationship ended after 1 March 2009.

3. The matter be adjourned to a Registrar at a date and time to be fixed for the making of directions to progress the matter to final hearing and that unless otherwise ordered by the Registrar, such hearing shall be conducted by telephone.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Allenby & Kimble has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1989/2011

Mr Kimble

Applicant

And

Ms Allenby

Respondent

REASONS FOR JUDGMENT

1. Over a period of about ten years Mr Kimble and Ms Allenby conducted a relationship. Ms Allenby seeks a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) (“the Act”) that the relationship met the criteria for a

   
   

   “de facto relationship” within the meaning of s 4AA of the Act. Mr Kimble admits a relationship, but denies it meets the statutory criteria and seeks a declaration pursuant to s 90RD that “a de facto relationship never existed”.

2. In the event that his relationship with Ms Allenby is found to be a “de facto relationship”, Mr Kimble seeks a declaration that the period, or the total of the periods, of the de facto relationship was less than two years or, alternatively, that the relationship ended in 2007. The effect of each such declaration would be that this Court does not have the power to make orders effecting a property settlement between the parties.

3. The proceedings, and these reasons, relate solely to the determination of whether or not the relationship between the parties meets the criteria for a

   
   

   “de facto relationship”.

What Type of Relationship is Prescribed?

1. The individual characteristics of intimate relationships see them falling along a spectrum.  Despite a definition as an exclusive “union” of a man and a woman for life, the individual characteristics of a marriage vary dramatically from, for example, the “practical union” to which Deane J refers in Mallett v Mallett (1984) 156 CLR 605 to, for example, two people who, despite their legal status, lead very separate lives. Relationships other than marriage also vary significantly in their individual characteristics and incorporate unions involving interconnected lives of mutual love and support as well as, on the other hand, what counsel in this case described (by reference, apparently, to modern parlance) as “friends with benefits”.

2. Where parties to a relationship have not, or are unable to, formalise their relationship in a manner which the law recognises as marriage, the regulation of the property rights and entitlements connected to their relationship is governed by the general law of property and the principles of equity. Those rights and entitlements are governed otherwise if, but only if, the relationship satisfies, relevantly, a definition prescribed in the Act of “de facto relationship”, and in circumstances to which the Act applies otherwise.

3. Individual or broad community perceptions of what might constitute a “de facto relationship” (including, it should be added, the individual perceptions of the parties to a relationship) are not determinative of whether the law so regards it. Whether the law so regards it is determined by reference to the Act’s definition.

4. Individual perceptions of what might be “fair” or “just” as determining property rights or entitlements as between parties to a relationship are not determinative of those rights under the general law or in equity and nor are they determinative of those rights if a relationship meets the statutory definition of “de facto relationship”; in the latter case, those rights and entitlements are also dictated by the terms of the Act.

5. Each of the parties, through their respective counsel, refer to my decision in Jonah & White (2012) 45 Fam LR 460 (“Jonah”). I hold to the views there expressed as to the principles applicable to applications of the current type. The terms of s 4AA of the Act are set out in that case and I will not repeat them here.

6. The first two of the three statutory pre-conditions necessary for the existence of a de facto relationship (s 4AA(1)(a) and (b)) are, it is conceded, met here.

7. The issue in this case is whether “having regard to all of the circumstances of their relationship…” Mr Kimble and Ms Allenby “…have a relationship as a couple living together on a genuine domestic basis” within the meaning of s 4AA(1)(c).

8. Where a declaration of the type sought is made, s 90RD(2) permits the Court to also declare, relevantly:

   (a)The period, or periods, of the de facto relationship for the purposes of paragraph 90SB(a);

   …

   (d)      When the de facto relationship ended;...

   Section 90SB provides, relevantly:

   A court may make an order under section 90SE, 90SG, or 90SM, or declaration under section 90SL, in relation to a de facto relationship only if the court is satisfied:

   (a)That the period, or the total of the periods, of the de facto relationship is at least two years …

9. If a de facto relationship be declared to have existed, a determination of its duration might be relevant to broader questions which arise (see, for example, s 90SF(3)(k); s 90SM(4)(e)). Where an application is confined to the question of whether a de facto relationship existed (and existed for the minimum statutory period), I consider that the power to make findings in respect of that question is confined by s 90RD, and, necessarily, (because it founds jurisdiction) whether the relationship ended after 1 March 2009.

10. In that respect, it is relevant to observe that periods may be aggregated so as to satisfy the necessary pre-condition for the existence of a defined relationship (s 90RD(2)(a); s 90SB(a)).  Further, periods prior to 1 March 2009 can be included provided the relationship ended after that date (Dahl & Hamblin (2011) 46 Fam LR 229 at [44], [45]).

11. The Act lists a number of specific criteria (s 4AA(2)) which “may” be part of the circumstances to which a court has “regard” when determining the question earlier posed.  Importantly, no particular finding is either necessary or determinative (s 4AA(2)).  Specifically, despite reference in the decided cases to the importance of the common residence of parties in determining the issue, that, too, is but one of the factors that needs to be considered  (see Jonah at [35] and the discussion there of the authorities and analogous legislative provisions).

12. Mr Looney, counsel for Ms Allenby, submits – correctly in my view – that s 4AA does not require a seriatim consideration of the matters referred to by that subsection; they are each and all matters that might illuminate the required task which the sub-heading to the section describes as “[w]orking out if persons have a relationship as a couple”. In that context, I again rely upon what I said in Jonah which, given reliance upon it by both counsel, I repeat here:

    58.It is in my opinion instructive that the Commonwealth legislature did not provide for relief of the type contemplated by Part VIIIAB of the Act in circumstances where one party has, by their words or actions, provided care, love or support to another or, indeed, in circumstances where one party has induced in the other an expectation of a relationship of greater commitment than that which transpired. Rather, the legislature has made provision for that relief upon satisfaction of the jurisdictional fact that a relationship of a particular, statutorily-defined, type exists.

    59.In that respect it seems to me also instructive that the Commonwealth legislature did not provide for relief of that type in circumstances where two people were parties to, for example, a ‘domestic relationship’, or, as in New South Wales, a ‘close personal relationship’ but, rather, only where parties were in a ‘de facto relationship’ as defined.

    60. In my opinion, the key to that definition is the manifestation of a relationship where “the parties have so merged their lives that they were, for all practical purposes, ‘living together’ as a couple on a genuine domestic basis”. It is the manifestation of ‘coupledom’, which involves the merger of two lives as just described, that is the core of a de facto relationship as defined and to which each of the statutory factors (and others that might apply to a particular relationship) [is] directed.

    61. Differences in nomenclature tend to confuse the picture rather than illuminate it. For example, counsel for the applicant submitted – in my view correctly – that a relationship which one party regards as ‘an affair’ might in fact be a de facto relationship as defined. So, too, a woman who might be described as ‘a kept woman’ (an expression accepted by the respondent upon suggestion from counsel for the applicant) might, similarly, describe one party’s perception of the relationship but, when all factors and the circumstances are considered, the relationship might nevertheless meet the definition of a ‘de facto relationship.

The Course of the Parties’ Relationship

1. The parties met in early 1999. It is common ground that a relationship, of one sort or another, continued, in one form or another, for the next ten years.  At the commencement of the parties’ relationship Mr Kimble was about 58 and Ms Allenby 46. They had each been involved in previous relationships and had children of those relationships. 

2. Mr Kimble cared for Ms Allenby in the aftermath of treatment for cancer early in 1999, during which period she resided for a short time with Mr Kimble. She returned to her own accommodation after a period of recuperation associated with her treatment.

3. Ms Allenby maintained a separate residence, with her children, until the middle of 2004 when she moved in with Mr Kimble.  Between 1999 and 2004, the parties spent time in each other’s company that included time overnight at each other’s homes. There was sexual activity between the parties from about February 1999 and at least some sexual relations continued between them until 2009. 

4. In 2003, Ms Allenby received around NZ$100,000 by way of inheritance.  That money was used by her to discharge indebtedness and by way of gifts to her children.  None was given to Mr Kimble nor used for any of his purposes (including being used toward any renovations subsequently undertaken within his home).  The parties never at any time held a joint bank account, nor did they comingle their finances.  They never owned any real property or chattels together.

5. In or about June 2004 Ms Allenby commenced living with Mr Kimble, in a property owned by him on the Sunshine Coast, Queensland (“Property A”).

6. I find that the move by Ms Allenby to Mr Kimble’s residence in the middle of 2004 was, at least at that time, intended by both parties to be permanent in the sense that neither party intended at that time for Ms Allenby to move to another residence at any determined, or undetermined, future time.

7. At about the time that Ms Allenby took up residence with Mr Kimble in mid-2004, Mr Kimble initiated a conversation in which he indicated that he required Ms Allenby to sign an agreement regulating their respective property rights and entitlements.  There is no evidence before me as to the nature of any such agreement as was contemplated at that time.  No agreement was drawn at that time. Some eighteen months later, in early 2006, an agreement, drawn by solicitors upon instructions from Mr Kimble was presented to Ms Allenby. It purported, in terms, to be a “…recognised agreement pursuant to Sec 266 of the Property Law Act (Qld) 1974.”She refused to sign it.

8. After Ms Allenby moved in to Mr Kimble’s home, she asked him to marry her on a number of occasions.  Mr Kimble is adamant that on each of those occasions he made it abundantly clear to Ms Allenby that he had no intention of marrying her, either then or in the future. I accept that evidence.

9. Shortly after moving into the home, renovations were undertaken (and paid for) by Mr Kimble to a room within the home, the effect of which was to permit Ms Allenby to run a business from within it.  That business was run separately from Mr Kimble who had no interest in it, including as a creditor.

10. In September 2007, that is to say about three years after the parties commenced residing in the same residence, Ms Allenby vacated Mr Kimble’s residence.  She had taken out a six month lease in respect of another property.  She asserts that this lease was taken out as a means of her “get[ing] it over the line” a sale being handled by her in her capacity as a real estate agent in which such capacity she was working at the time. As will be discussed further below, Mr Kimble contends that Ms Allenby moved out as a result of Mr Kimble’s “…refusal of her repeated propositions and requests for [him] to marry her or buy her a ring and I asked her to sign the Agreement which she did not want to do.” Mr Kimble visited her at that property.  They had sexual intercourse there on at least one occasion. It is not in dispute that she resided in that property for only a matter of weeks.

11. Mr Kimble asserts that Ms Allenby moved back into his property whilst he was away working – implying that she did so other than with his concurrence or, at least, any commitment by him to a continued relationship at that time. The parties continued to share that residence from when Ms Allenby resumed occupation until 2009.  He asserts that only some of her belongings returned with her.  Mr Kimble deposes that “if the relationship was that of de facto partners, the de facto nature of the relationship terminated in or about September 2007, even though the applicant and I continued to live in the same house until April 2009”. 

12. It is common ground that Ms Allenby continued to pay rent on the unit notwithstanding the fact that she had moved back into Mr Kimble’s home by October 2007. Ms Allenby stated during oral evidence that she continued to pay rent for the unit until January 2008, when another woman moved in and took over the rent. Mr Kimble contends that Ms Allenby moved back into his home because “…her flat mate was horrendous to live with…” I do not accept Mr Kimble’s evidence as to the reason for Ms Allenby returning to live with him.

13. At the end of 2007/early 2008, Mr Kimble travelled to the United States with his adult daughter and her family.  There were email exchanges during that time between the parties that will be referred to in more detail below.

14. Upon Mr Kimble’s return from that holiday, the parties again resided together at Mr Kimble’s home.  Ms Allenby moved out of Mr Kimble’s home in April 2009 (he asserts “around the end of May/June 2009”) to reside in a unit with a friend.  Mr Kimble agrees that he visited Ms Allenby there, that he stayed there at least one night and that sexual relations occurred at least once at that unit.

15. Ms Allenby marks the end of the relationship as August 2009 when she sent an email to that effect to Mr Kimble.

Veracity and Reliability

1. The differing perceptions of the nature of a relationship earlier referred to are, in my view, manifest in the evidence of the parties here.  Those differing perceptions and what I find were the parties’ differing hopes and expectations of the relationship has coloured the evidence of each of them and affected its reliability in each case. 

2. Per force of their involvement in the preparation of these proceedings and, in particular, the place of an unsigned “pre-nuptial agreement” within them, I consider that the reliability of the evidence of each party is also adversely affected by each of them being aware that the evidence they each give in respect of aspects of their relationship has the potential to have ramifications for their respective entitlements. 

3. I consider that an example on the part of Mr Kimble is provided by the change in tenor in what is sworn to by him in respect of a renovation to his property.  In an affidavit filed in June 2011, Mr Kimble deposes that shortly after Ms Allenby moved into his home “…I built her a special room in the house so she could continue operating both [her […] business]…” He goes on to depose to not drawing a wage from those businesses or charging her any overheads and says “[i]t cost me around $10,000 to renovate my home to make it suitable for that purpose.” Mr Kimble’s later affidavit, and particularly his evidence in the witness box, suggests that the renovation was part of an ordinary course of renovations undertaken by him to his home.  An example in the case of Ms Allenby is provided by her evidence in answer to a question as to whether Mr Kimble derived any benefit from a cash sum received by her.  She said that she bought a motor vehicle “which we both enjoyed”. We pressed as to how Mr Kimble enjoyed the car, Ms Allenby stated that he would sometimes accompany her on drives, and on some occasions the convertible top would be down.

4. I granted Ms Allenby a Certificate pursuant to s 128 of the Evidence Act 1995 (Cth). The certificate related to answers to questions directed to her completion of forms for Commonwealth benefits (Exhibits A1, A2, A3 and A4 and A5 and A6). On none of the relevant forms did Ms Allenby indicate that she was in a de facto relationship or describe her “status” as “de facto” or indicate that she was living in a relationship with Mr Kimble.

5. I will return to this matter later in these reasons.  For present purposes,  I consider her explanation as to how it came about that she gave the answers she did (“I was under pressure”;  “[I] didn’t think”) to be entirely unsatisfactory.  I consider she answered the questions in the manner in which she did to obtain a benefit (or, perhaps more accurately, to continue receiving a benefit or benefits) to which she may otherwise not have been entitled.  Plainly enough, that finding causes me to treat her evidence, in terms of its overall veracity, with some circumspection.  As will emerge, however, it does not cause me to reject the entirety of her evidence nor does it result in a finding that I necessarily reject her evidence where it conflicts with that of Mr Kimble. 

1. Indeed I also hold reservations about the veracity of Mr Kimble. In his first affidavit he swears:

   During the whole time [Ms Allenby] resided with me, we did not go on any holidays together nor did we attend each other’s special family occasions such as birthday’s, Christmas, Easter and the like. The only exception to this was one occasion where [Ms Allenby] attended my daughter’s wedding held in Melbourne.

2. That evidence is, on his admission, false. In a later affidavit he deposes that the statement “…is not entirely accurate…”  No reason is offered for the false earlier statement save that, in the later affidavit, he deposes to “…now recall[ing]…” other occasions, which he goes on to relate.  In respect of the earlier unqualified assertion that the parties “did not go on any holidays together” Mr Kimble subsequently conceded in his later affidavit that he had travelled with Ms Allenby to Bali, Italy and New Zealand, with the first two trips, at least, being wholly funded by him.

Is There the Requisite Degree of “Coupledom”?

1. Ms Allenby describes a relationship which, in broad terms, is one of permanence and mutual love and support where the lives of her and Mr Kimble, and their respective families, became intermingled.  Mr Kimble describes the relationship, in broad terms, as one of mutual convenience with a sexual element born out of friendship involving two people who were each mature adults who had each had previous relationships and children of those relationships, and, as his counsel put it, “went into their relationship with their eyes open”.   Each of the parties can point to evidence indicative of the circumstances of their relationship pointing to, or not pointing to, it being one of a “…a couple living together on a genuine domestic basis”.

Overview of Circumstances Relied upon by Mr Kimble

1. The parties’ resided together for less than half of the ten years that they maintained a relationship (June/July 2004 – September 2007 and again from about October 2007 until April/May/June 2009).  It is argued that this history is more consistent with friends living together for “chunks of time” as distinct from a couple who manifest their coupledom, in part, by living together.

2. In any event, during that time, Mr Kimble was frequently away from home for periods of time working. During the period that the parties cohabitated, he says they did so as friends. He swears that the parties had separate bedrooms.  Ms Allenby asserts they at all times shared the master bedroom.  At least some of Mr Kimble’s answers in cross-examination might be taken as him accepting that the parties did in fact share the master bedroom.  To the extent he contends otherwise, I reject his evidence. Specifically, I reject the sworn account to the contrary in his affidavit.

3. The parties each owned real property in which the other had no legal interest. Each party sold that real property.  The real property owned by Mr Kimble in which the parties resided was purchased in late 2001 after his first property was sold and was purchased without reference to Ms Allenby.  The sale proceeds of their respective real properties, received in mid-1999 and late 2001 by Ms Allenby and Mr Kimble respectively, were dealt with by each without reference to the other.

4. Approximately NZ$100,000 received by Ms Allenby by way of inheritance was used for purposes entirely her own (including upon her children) without reference to him.  More generally, there was never any intermingling of finances and the parties never maintained a joint account.

5. As earlier referred to, it is contended by Mr Kimble that Ms Allenby gave the answers that she did on the forms for Commonwealth benefits earlier referred to, because those answers were in fact true.

6. More generally, it is asserted by Mr Kimble that, at the commencement of the relationship, each of the parties was mature, had been involved in earlier relationships and had children from those relationships who were adults (or, in Ms Allenby’s case, approaching adulthood)

Overview of Circumstances Relied upon by Ms Allenby

1. Cohabitation commenced only after the parties had been in a relationship for some time and commenced after her youngest children were significantly self-sufficient.

2. The move from Mr Kimble’s residence in September 2007 was temporary, of short duration and for the purpose earlier outlined.  Mr Kimble contends that this move marked the cessation of the relationship.  I reject his evidence in this respect.  In addition, I accept the evidence of Ms Allenby that the parties’ relationship continued as it had previously upon Ms Allenby moving back to Mr Kimble’s home in about October 2007.

3. Emails passing between the parties at a time in late 2007 and early 2008 when Mr Kimble was visiting the United States with his daughter and her family point to the nature of the relationship and its continuance beyond September 2007. Mr Kimble contends that his daughter sent the emails without any consultation with him. They were sent, he contends, of his daughter’s own volition. I reject that evidence. Even if I were to accept Mr Kimble’s evidence in respect of the emails which, I repeat, I do not, that his adult daughter would, of her own volition, email Ms Allenby describing what she and her father had been doing on their travels and forwarding links to photos, runs contrary to the tenor of the evidence of Mr Kimble regarding the extent of the intermingling of he and Ms Allenby’s respective families.

4. The relationship had a sexual element which continued during cohabitation.  In that respect, Ms Allenby contends that the parties always shared the master bedroom.  As I have said, I accept this evidence contrary to Mr Kimble’s contention. 

5. A renovation was done at Mr Kimble’s home specifically to allow Ms Allenby to conduct a business from within it.  I have earlier referred to what was said in Mr Kimble’s first affidavit about “…buil[ding] her a special room…” for that purpose.  Mr Kimble prevaricated in his second affidavit: “…[that is] an inexact description of what occurred.” I was entirely unsatisfied by his attempts to explain the difference and I consider that his first deposition, which essentially accords with Ms Allenby’s evidence and, in my view, photographs tendered by her, to be the more accurate.

6. I have already referred to Mr Kimble’s sworn denials as to the involvement of Ms Allenby in “…special family occasions…”  Ms Allenby deposes to the contrary, giving examples of many such occasions in her affidavit.  Numerous photographs were put to Mr Kimble suggesting a contrary picture.  Mr Galloway contends on Mr Kimble’s behalf that, taken together, the photographs have no evidentiary value beyond the fact that “from time to time the parties were in each other’s company at various events”; they are, he contends, “neutral artefacts” and “could just as well be photos of a dating couple or a long-married couple”.  So much is, per se, true.  However, it seems to me that the photographs need to be seen in the context of other evidence, including the later admissions made by Mr Kimble in respect of the inaccuracy to which he swore in his first affidavit and the sworn evidence of Ms Allenby which I accept.

7. An important contention by Ms Allenby is that the parties’ children from their respective earlier relationships (and their partners and children) interacted with the parties in a manner consistent with them being a couple.  Ms Allenby asserts it to be of particular significance that there were occasions when she interacted with Mr Kimble’s children in his absence; she cites as particular instances (accepted by Mr Kimble as having occurred), when she visited Mr Kimble’s daughter and her family in Melbourne and entertaining Mr Kimble’s adult children and their families at Christmas-time 2007 when Mr Kimble left for overseas.

8. Ms Allenby also refers to an email sent from her to Mr Kimble and a response to same from Mr Kimble on 3 August 2009. In the email from Mr Kimble, he says “i hope you are going to be happy. i dont think i was capable of doing that and very sorry. i dont think i can make anyone happy…” More will be said about this email, and the email from Ms Allenby that prompted it in respect of the date of the parties’ separation. For present purposes, the significance of the email from Mr Kimble lies in the disparity between its tenor and that of Mr Kimble’s most recent affidavit and oral evidence. In my view, the email is inconsistent with the ambivalence that Mr Kimble attempted to portray in his most recent affidavit and in his oral evidence. As an example, Mr Kimble deposed to it “suiting him” to have Ms Allenby “…living in my house…” because it meant that somebody would be “maintaining it while [he] was away” but, he “…was pleased to have my house back to myself after [Ms Allenby] moved out.” The email is, in my view, redolent of remorse at the failure of “coupledom”.

The Agreement and the Absence of Evidence

1. It is common ground that at about the time when Ms Allenby moved into Mr Kimble’s residence, he required of her, and they discussed, an agreement that would regulate their property interests in the event that their relationship ceased.  It is also common ground that the effect of the agreement sought, and the effect of the conversation/s, was that each of the parties would retain their separate property.  Ms Allenby denies saying to Mr Kimble that she “would never take [him] to court”.  I reject her denial.  She accepted the proposition that Mr Kimble was not happy with her “living under his roof” until she signed an agreement.

2. However, while that conversation took place in 2004, no agreement was presented to Ms Allenby until some 18 months later in 2006.  She refused to sign it saying in evidence that she refused to do so “because it was saying in effect that I was worth nothing”.  It remained unsigned.  No other agreement was presented to her nor, she says and I accept, was there further mention of it or any other agreement after her refusal to sign.

3. Although it is common ground that the parties were in a relationship of some type for some five years prior to Ms Allenby moving into the home of Mr Kimble, there is no evidence that any advice was sought as to any agreement that might govern any rights or entitlements of the parties prior to mid-2004. 

4. The agreement’s Recitals provide that “The parties commenced co-habitation at [Property A] [Mr Kimble’s residence] in July 2004 in a defacto [sic] relationship (“the relationship”)”; and that “The Parties intend to continue to live in a defacto relationship”.

5. The agreement’s Recitals also provide that it is a “recognised agreement pursuant to Sec 266 of the Property Law Act (Qld) 1974.” That is, it was to be an agreement of a type then applicable to de facto relationships in Queensland.

6. The operative clauses of the agreement go on to provide, in effect, that each of the parties would retain the property which they each owned at the commencement of the relationship to the exclusion of the other and that any property purchased jointly during the relationship would be sold in accordance with the terms of the agreement but not otherwise. Those clauses also define separation for the purposes of it.

7. The operative terms also go on to make specific reference to the provisions of the Property Law Act 1974 (Qld) which, at that time, governed the making of “adjustment orders”. Those orders could only be made in respect of the property of parties to a de facto relationship (as then defined).

8. It is important to record what the husband deposes about that agreement in each of the two affidavits sworn by him. Again, it is important to recall that, at this point, the parties had been in a relationship for about five years. In the first affidavit sworn 31 May 2011, he deposes relevantly:

   7.Shortly after being required to downsize [her existing residence], [Ms Allenby] asked if she could move in to my home at [Property A] … as she didn’t want to downsize to a smaller home. I agreed to her moving in on the strict condition that she sign a prenuptial agreement (“the Agreement”) prepared by Greenhalgh Pickard Solicitors on my behalf. [Ms Allenby] confirmed that she would execute the agreement and moved in shortly after.

   8.Once she moved in, she never signed the Agreement. From memory, she moved in around early 2004. The Agreement states that we started living together in July 2004 and I am prepared to be guided by that date, confirmed at that time.

   9.The Agreement, that precluded her from making any current or future claims against my assets or estate, was never signed. After [Ms Allenby] finally left the property in or around June 2009, I discovered that my copy of the Agreement had been removed from my filing cabinet together with other of my personal financial documents, for example tax returns …

9. At the time that affidavit was filed, the solicitors who prepared the agreement were acting for Mr Kimble in and about these proceedings. Some six months later, and with new solicitors, the husband deposed:

   6.I refer to my affidavit sworn 31 May 2011 and filed herein and in particular paragraphs 7, 8 and 9 thereof and in relation to the matters contained in those paragraphs say that at the time I provided instructions to my then solicitor, I believed that because the Applicant and I had commenced a sexual relationship and because we had commenced to share a common residence, our relationship was that of a de facto couple. At the time I provided those instructions, I was unaware of the provisions of Section 32DA of the Acts Interpretation Act 1954 (Queensland) and, if I had been so aware of those provisions, I would not have instructed my then solicitor that the Applicant and I had commenced a de facto relationship. In light of the matters that have subsequently been explained to me I do not now believe that the Applicant and I were ever in a de facto relationship. In relation to the matters contained in section 32 DA of the Acts Interpretation Act, I say as follows [Mr Kimble then deposes to those relevant matters].

   …

   8.In or about 2006 and because I believed that the Applicant and I had become de facto partners when she moved in to my house which, to the best of my recollection, was in July 2004 (a belief which I now consider to have been mistaken) I instructed my then solicitor to prepare an agreement for both the Applicant and me to sign, dealing with our respective property in the event that our relationship failed …

10. Mr Kimble then goes on to depose that he presented the agreement to Ms Allenby who refused to sign it, to which he responded “if you refuse to sign this agreement, you can no longer live here in [Property A] and you will have to find somewhere else to live” and deposes that “the applicant moved out shortly thereafter”.  The significance of what is there intended to be conveyed is obvious.  

11. The effect of this evidence is that the agreement was presented shortly prior to mid-September 2007. Mr Kimble’s answers in cross-examination were redolent of him having no clear recall of when he presented the document.  Mr Kimble swears to instructing his solicitors to prepare the document in or about 2006.  The document bears an unspecified date in 2006.  While not being prepared to concede that it was presented to Ms Allenby by him “prior to the 2-year anniversary of her moving in”, he accepted it was not “three years after she moved in” (i.e. mid-2007).   

12. I do not accept that the agreement was presented in mid-September 2007 or that Ms Allenby “moved out” proximate to its presentation. I think it highly likely the agreement was presented in 2006 and a significant period of time prior to Ms Allenby vacating the property in September 2007 (which, in any event, I find was for a brief time and in the circumstances to which she deposes).

13. However, the real evidentiary value of the agreement as it seems to me is its timing within the context of the relationship.  The parties had, it is agreed, conducted a relationship for about 5½ years prior to the issue of an agreement being raised.  It was raised upon cohabitation but, more importantly, it was actioned some eighteen months later during which time the parties had continuously cohabited and shared the master bedroom, had shared family activities and a renovation had been carried out within the home so as to allow Ms Allenby’s business to be run from it.  It is the circumstance of the agreement being pursued and promulgated at this time which, in my view, gives it its real importance. 

14. I attach no weight to the self-serving evidence given by Mr Kimble as to “what he would have done” if certain things had or had not occurred (see par 6 of Mr Kimble’s affidavit filed 16 December 2011, quoted in [60] above). 

15. I accept the submissions by counsel for Mr Kimble that one cannot make true a fact asserted in a Recital in a document which has not been signed by a party (or, indeed, make true by stating it is something which is not in fact true). In any event, such a Recital is not determinative of the question.

16. Nor, as I have previously said is a party’s subjective view determinative of that question. But, where two parties have indicated a preparedness to attempt to regulate their rights by agreement and, in particular, an agreement of a specific statutory type, the facts and circumstances asserted by each that were the genesis for the drawing of the agreement are likely to be very important in assessing whether the statutory definition is met. The facts and circumstances related by Mr Kimble to his then solicitors that formed the instructions upon which a specific form of agreement applying only to de facto relationships was drawn by those solicitors at that time. 

17. Mr Kimble provides no evidence of the instructions he gave as to the circumstances founding his instructions and any advice he was given.  He does not call his solicitor in circumstances where he swears to the understanding that founded, and on his evidence, informed, his instructions.  Mr Kimble has in my view waived any privilege attaching to those instructions and advice by reason of what he has deposed to.  If so, his former solicitor could have elucidated the circumstances of the parties’ relationship outlined by Mr Kimble to them which he otherwise seeks to explain by the use of self-serving evidence.  (If privilege is asserted to attach and to have been waived, it ought to have been claimed as a basis upon which the evidence was not called.)

18. The absence of evidence from those solicitors is not explained. Mr Galloway contends that it was for counsel for Ms Allenby to explore that issue with Mr Kimble. I disagree. The foundation for the inference is laid by Mr Kimble himself in the affidavit and counsel for Ms Allenby was, in my view, properly entitled to let it stand or fall on its own terms. 

19. I infer that evidence from Mr Kimble’s former solicitors would not have assisted his case (Jones v Dunkel (1959) 101 CLR 298).

20. Mr Galloway argues that statements (or, more accurately, letters) attached to the affidavit of Ms Allenby and objected to as hearsay are equally susceptible to such an inference as against her.  I reject that argument.  That evidence (if led in admissible form) is, in my view, “cumulative evidence” as that expression is used in the authorities. (See generally Cross on Evidence at [1215]).  Its place in these proceedings, if adduced in admissible form, can be plainly distinguished from Mr Kimble’s former solicitor.

The Evidence of Ms P

1. Ms P gave evidence on behalf of Ms Allenby that she had been a housekeeper for the parties from “2004 approximately until 2007”. Ms P’s evidence can be seen to be corroborative of the parties sharing a master bedroom, a finding which I am, in any event, prepared to make based solely on my assessment of the evidence of each of the parties.

2. Apart from that issue, I do not consider Ms P’s evidence to be of particular assistance.

The Declarations on Claims for Commonwealth Benefits

1. The claim for a Healthcare Card signed by Ms Allenby on 3 May 2006 (Exhibit A6) was completed at a time when she had been residing with Mr Kimble for some two years. Exhibit A4 (an earlier application completed on 7 April 2003) gave her address, correctly, as an address other than Mr Kimble’s home.  But, her application signed some three years later ticked, as did the earlier version, “divorced” as her status and the relevant box for “de facto” was left blank. Significantly, given that in the intervening time Ms Allenby had moved in to the home of Mr Kimble, the question “date you became de facto” was also left blank. The section of the form relating to “your partner” was, once again, left blank.

2. However, Ms Allenby gave her home address on that later document as that of Mr Kimble’s – that is she gave a truthful account that she was living at that address but did not accompany that with any indication that she had started, or was in, a de facto relationship.   

3. Mr Galloway argues on behalf of Mr Kimble that, taken together, the documents should be accepted as statements of truth for what they are; that is an assertion as to where Ms Allenby was living at the times in which those documents were completed and, as a statement of truth about the nature of the relationship – or at least her perception of the relationship – at each such time.

4. Thus, argues Mr Galloway, the Court should, in effect, take her at her word: Ms Allenby was living at Mr Kimble’s home but, notwithstanding, did not consider Mr Kimble to be her “de facto” nor did she regard him as her “partner”.  I reject that argument.  I repeat my earlier finding: I think it likely that the form was completed falsely with a view to obtaining a benefit to which Ms Allenby may not have been entitled.

The Emails

1. It will be recalled that Mr Kimble suggests that when Ms Allenby moved out of the home in mid-September 2007, any de facto relationship which the parties did have came to an end. I have already made findings that the absence from the home on that occasion, despite Ms Allenby signing a lease, was for the duration and purpose for which she contends. Thus, that absence needs to be seen as an absence of a matter of weeks for the specific purpose of facilitating a real estate sale.

2. I consider that emails passing between the parties at the end of that year and the very early part of 2008 lend significant weight to the conclusion that the relationship between the parties continued after Ms Allenby left the home in September 2007 and add weight to my rejection of Mr Kimble’s evidence in that regard.

3. I also consider that the emails provide a valuable insight into the nature of the relationship between the parties unguarded by the considerations which, as I have already indicated, colour their depositions.

4. In my view, those emails are redolent of a relationship of a couple as distinct from friends – or even close friends – sharing information while one is away overseas. Reference to their contents sees a focus upon family members and the minutiae redolent of domestic life. Further, the tone of the communications is, in my view, to a similar effect.

A New Relationship?

1. Ms Allenby was cross-examined about the fact that, as she accepts, she purchased a house with a Mr D as joint tenants in August 2009 at a price exceeding $800,000. She contends that she has known Mr D for many years and did not contribute financially to the purchase of this property.

2. In answer to questions from Mr Galloway, she indicated that the joint tenancy came about because they had known each other and been friends since meeting in 2002/03 and during their “odd lunch” together, Mr D would ask about real estate on the Sunshine Coast and indicated that if Ms Allenby found a property they would develop it together and split the proceeds when it was sold.

3. At the moment, the same Mr D provides Ms Allenby with money weekly. She lives in the home which they have “jointly” purchased and is paid $500 per week “general living expenses”. On 15 June 2009 Mr D gave Ms Allenby $5000 for a purpose which she can no longer recall. Whether the amount is to be paid back is “to be decided” when the jointly owned real property is sold. Aside from the $5000 paid to her in June 2009, Ms Allenby was “not sure” if money was paid to her prior to August 2009. Mr D also pays on her behalf, an additional approximate $200 per week for “additional living expenses”.

4. Ms Allenby denies that there is (or has been) a de facto relationship between she and Mr D. To the extent that any relationship with him is relevant to the issues under consideration, it can only be, in my view, relevant to the issue of whether any relationship in the nature of a de facto relationship with Mr D existed at about the time when Ms Allenby was claiming an exclusive committed relationship with Mr Kimble.

5. I can well understand the scepticism with which the arrangements, including importantly financial arrangements, between Mr D and Ms Allenby said to arise purely out of friendship are viewed. But I consider the evidence insufficient to draw any conclusions about that based on the evidence before me in this case.

Separation?

1. Ms Allenby marks the end of the relationship in August 2009 when she sent an email to Mr Kimble. That email, exhibited to her affidavit filed 18 April 2012, is certainly redolent of the end of a relationship. Of significance in the current context, Ms Allenby says “[m]y life has changed considerably I guess the wind has blown me in another direction. I had hoped things could have been different and I asked you enough times trying to get some positive direction for my life. I have moved on and will always remember the good times favourably. A couple who plays together stays together how true that is. We stopped playing some time ago…” (emphasis added)

2. In his first affidavit Mr Kimble deposes to Ms Allenby remaining in his home “up until the end of May/June 2009”. In his later affidavit he deposes that the parties shared his home from “to the best of my recollection, about July 2004 until around April 2009”. Again, it might be observed that Mr Kimble’s sworn evidence has moved (albeit slightly) the date of the cessation of cohabitation to a month earlier than that which he swore in his first affidavit.

3. The email from Ms Allenby contemplates, as it seems to me (albeit in general terms) the cessation of the relationship prior to the date of that email. In my view the best evidence before me permits of a conclusion that the parties’ relationship ceased after April 2009, but before August 2009.

Conclusions as to De Facto Relationship

1. In decided whether this relationship meets the statutory criteria – whether it exhibits the required “coupledom” – I attach particular weight to:

   ·   The fact that the relationship moved from a five-year phase in which each party can be seen to maintain their “separateness” to a co-habitation;

   ·   The fact that the parties shared the master bedroom;

   ·   The fact that Mr Kimble modified a property owned by him specifically to permit Ms Allenby to conduct a business from it, yet he drew no financial gain from that business;

   ·   The intermingling of the parties’ respective families centring on Mr Kimble’s denial of same;

   ·   The fact that drawing of a specific form of statutory agreement was pursued some 18 months after being mooted and after co-habitation commenced;

   ·   Evidence from Mr Kimble’s former solicitors as to his instructions and their advice would not have assisted his case;

   ·   Email communications post-September 2007 are redolent of a relationship not of friendship but, rather, of a couple sharing information.

2. By reference to all of the circumstances of this case, I am persuaded that it is more likely than not that the parties were in a relationship as a couple living together on a genuine domestic basis and that they were so for more than two years ending at a point after April 2009.

I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 2 August 2012.

Associate:

Date:  2 August 2012