BIGGAR & CROW

[2017] FamCA 594

FAMILY COURT OF AUSTRALIA

BIGGAR & CROW [2017] FamCA 594

FAMILY LAW – JURISDICTION – De facto relationship – Whether a de facto relationship was in existence so as to enliven the jurisdiction of the Family Court – Consideration of the factors in s 4AA of the Family Law Act 1975 (Cth) – Where the Court was not satisfied on the balance of probabilities that the parties had a relationship as a couple living together on a genuine domestic basis – Declaration that no de facto relationship existed between the parties – Application dismissed.

FAMILY LAW – COSTS – Where the applicant was wholly unsuccessful – Where there are no exceptional circumstances to enliven the discretion to make an order for indemnity costs – Orders made for the applicant to pay the respondent’s costs on a party and party basis.

Family Law Act 1975 (Cth) s 4AA, 117(2A)
Relationships Register Act 2010 (NSW) s 5

Prantage & Prantage (2013) FLC 93-544

APPLICANT: Mr Biggar

RESPONDENT: Mr Crow

FILE NUMBER: SYC 6746 of 2016

DATE DELIVERED: 14 August 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 8 and 9 August 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Johnston

SOLICITOR FOR THE APPLICANT: Morton Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Lloyd SC

SOLICITOR FOR THE RESPONDENT: Blanchfield Nicholls Partners

Orders

IT IS DECLARED

1. That no de facto relationship existed between the Applicant and the Respondent.

IT IS ORDERED

1. That the application filed 10 October 2016 be dismissed.

2. That the Applicant pay the Respondent’s costs of the proceedings on a party and party basis as assessed or agreed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6746 of 2016

Mr Biggar

Applicant

And

Mr Crow

Respondent

REASONS FOR JUDGMENT

1. Mr Biggar (“the applicant”) alleges that a de facto relationship existed between himself and Mr Crow (“the respondent”) between 1989 or 1990 and 19 January 2015.

2. The respondent denies that any de facto relationship ever existed but says that they were close friends for a period in the 1990s and remained friends and socialised together until 2008. Thereafter, according to the respondent, they saw one another socially, on occasions.

3. The applicant bears the onus of proof.

4. Whether or not a de facto relationship existed at a particular time is determined having regard to the provisions of s 4AA of the Family Law Act 1975 (Cth) (“the Act”), which are set out below:

FAMILY LAW ACT 1975 - SECT 4AA

De facto relationships

Meaning of de facto relationship

(1)  A person is in a de facto relationship with another person if:

(a)  the persons are not legally married to each other; and

(b)  the persons are not related by family (see subsection (6)); and

(c)  having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

Paragraph (c) has effect subject to subsection (5).

Working out if persons have a relationship as a couple

(2)  Those circumstances may include any or all of the following:

(a)  the duration of the relationship;

(b)  the nature and extent of their common residence;

(c)  whether a sexual relationship exists;

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

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

(f)  the degree of mutual commitment to a shared life;

(g)  whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;

(h)  the care and support of children;

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

(3)  No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.

(4)  A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.

…

1. The central determination that the Court must make is that they had a relationship as a couple living together on a genuine domestic basis.

THE TRIAL

1. At trial, the applicant relied on an affidavit sworn by himself.

2. The respondent relied on affidavits by himself and three witnesses. Ms J was an employee of the respondent. Mr K was a friend of some 60 years. Mr H has known the respondent since 1982 and has been employed by him for most of that time. All of the respondent’s witnesses were cross‑examined.

CONSIDERATION

(a)  the duration of the relationship

1. The applicant, in his initiating application, asserted that the parties had commenced co-habitation in 1989. In submissions it was conceded that he first met the respondent, who is a professional, when he consulted the respondent on a professional basis in April 1990.

2. The respondent agreed that they met in 1990 but denied that they had ever lived in a de facto relationship.

3. The applicant, in his initiating application, said that the relationship ended on 19 January 2015 after 25 years.

4. In his affidavit he deposed that, on 19 January 2015, the respondent hand delivered a letter to the applicant’s residence. The letter was addressed to the applicant’s mother and related to a property in which the applicant’s mother and the respondent had an interest. The applicant deposed that he did not open the letter and was not, on 19 January 2015, aware of its contents. However, in cross-examination, he said that it was the receipt of the letter which caused him to come to the view that the relationship had ended.

5. Thus, the relationship either persisted for 25 years, according to the applicant, or never existed, according to the respondent.

(b)  the nature and extent of their common residence

1. The applicant alleged that he and the respondent lived together in one of two apartments above the respondent’s professional rooms in B Street, Suburb C (“B Street”). The respondent denied that they ever lived together.

2. When the applicant and the respondent met, the applicant was living in a house owned by his mother in Suburb D. In cross-examination, the applicant conceded that from 1989 until 1994, his driver’s licence, tax returns and electoral roll entry gave his address as Suburb D.

3. In 1994, in circumstances which will be further discussed later in these reasons, the applicant and his mother moved to E Street, Suburb F (“E Street”).

4. The respondent deposed that, at the time he met the applicant, he lived with his mother at G Street, Suburb C (“G Street”).

5. The respondent deposed that he had lived at G Street with his mother and his sister for the whole of his life until his mother died in 2000 and his sister died in 2008. He continues to live there.

6. In his affidavit the applicant deposed that from early 1990, he kept clothes at B Street, had keys to the premises, and slept there every night with the respondent until about 1997 or 1998 when the respondent’s mother broke her hip and the respondent thereafter slept at his mother’s home.

7. He deposed that each evening, they would go to the apartment after the surgery closed and stay there until dinner time. The applicant deposed that he and the respondent ate dinner each night with their respective mothers and then returned to B Street and slept there together. The applicant deposed that he would rise early and go to his mother’s house each morning to walk the dogs.

8. The applicant said that this arrangement continued until the respondent’s mother broke her hip in 1997 or 1998. Thereafter, he said, the respondent slept at G Street to help care for his mother.

9. Thus taken at its highest, the applicant’s case is that there was a common residence until 1997 or 1998.

10. The respondent denied that he and the applicant ever slept at B Street. He deposed that he did sleep at B Street for a few nights per week from 1974 to 1988 to comply with council requirements. He denied that the applicant kept some clothes and toiletries there. The respondent deposed that he slept at G Street.

11. The respondent agreed that the applicant had keys to B Street because the applicant did work there in the gardens and cleaning the rooms for which, the applicant deposed, he was paid $500 per week in cash.

12. Mr H was employed by the respondent in various capacities both at B Street and at G Street. He deposed that he became the carer of the respondent’s mother at G Street and was also the carer for the respondent’s sister when she became ill.

13. Mr H deposed that he did not see any signs that the applicant was living at B Street or any clothing or toiletries belonging to the applicant. He did not see the applicant at B Street early in the mornings.

14. Mr H deposed that that he saw the respondent leaving G Street to go to work in the mornings.

15. Ms J deposed that she worked as the respondent’s receptionist and administration manager from 1989 until about 2003. After 2003, she continued to work casually for the respondent until he retired in 2015.

16. Ms J deposed that she worked downstairs in the professional rooms when she was performing the duties of receptionist and upstairs in one of the apartments when she was doing typing.

17. Ms J started work at 6.30 am and finished in the early afternoon if she worked a morning shift. On occasions, she started later and worked until about 6.45 pm.

18. Ms J deposed that, on the occasions that she arrived to start work at 6.30 am, the respondent arrived either at the same time as she did, or shortly thereafter. That evidence was not challenged. She deposed that she did not see the applicant at B Street when she arrived.

19. She deposed that shortly after she first met the applicant at the practice, he began attending in the afternoons to clean, which included emptying bins and vacuuming.

20. She deposed that, in conversations about E Street, the applicant referred to the property as “his house”. That evidence was not challenged.

21. Ms J deposed that she did not have the impression that either the applicant or the respondent was living in the apartment at B Street. As far as Ms J was aware, the respondent was living at G Street with his mother and sister. Ms J knew the respondent’s mother and sister and attended dinners with them, arranged by the respondent.

22. Although the evidence of the respondent was challenged, the evidence of Ms J of his time of arrival at B Street in the mornings was not.

23. The applicant never stayed overnight at G Street. The respondent never stayed overnight at either Suburb D or E Street.

24. I accept the evidence of Ms J and the respondent on this issue.

25. The applicant has not established, on the balance of probabilities, that he and the respondent ever had a common residence.

(c)  whether a sexual relationship exists

1. The applicant alleged that he and the respondent had a sexual relationship from shortly after they met until 2011, that their sexual relations were not regular from 2011 and ceased from 2013.

2. The respondent denied that he had ever had any sexual relationship with the applicant. He denied each and every allegation of the specific details of the alleged sexual activity.

3. It is the nature of sexual relationships that there are rarely witnesses who can corroborate a version of the evidence and so it was here.

4. Ms J deposed that she had never observed any display of physical affection between the applicant and the respondent.

5. Mr K deposed that he had never observed physical contact between the applicant and the respondent or anything that indicated that they were more than friends.

6. Mr H deposed that he had never seen the applicant and the respondent hug, kiss or be otherwise physically affectionate.

7. The evidence of the applicant does not establish, when weighed against the denials of the respondent and the observations of the respondent’s witnesses, that a sexual relationship existed between them at any time.

(d)  the degree of financial dependence or interdependence, and any arrangements for financial support, between them

1. In cross-examination, the applicant said that he had never been financially dependent upon the respondent.

2. The applicant and the respondent had no joint bank accounts.

3. The respondent did not discuss his financial affairs with the applicant. The applicant in cross-examination said that the respondent was very secretive about his financial affairs.

4. The applicant was employed. The evidence does not establish when the applicant retired. He lived with his mother in properties owned by her.

5. In 2001, the applicant inherited $1,300,000 from the estate of Mr M, for whom he had cared for, for about six months during Mr M’s terminal illness. Mr M was a good friend of the applicant and they had travelled overseas together.

6. The applicant used part of that money to buy an investment property.

7. In July 2001, the applicant lent the respondent $50,000 from his savings. There is a dispute about whether or not that sum was repaid but it is not necessary to determine that issue. There was no evidence of any written request for repayment.

8. After the applicant started attending to gardening and cleaning at B Street, the respondent paid him $500 per week in cash. Ms J deposed that other employees were paid in the same manner and that she saw the applicant collect envelopes containing cash with his name written on them.

9. The respondent said in cross-examination that part of the reason for paying the applicant $500 per week was “to manage to keep the thing going” from which I infer that this was the respondent’s assistance to the applicant and his mother remaining in E Street.

10. The evidence does not establish when that arrangement came to an end.

11. The respondent, in cross-examination, said that on a number of occasions he gave cash to the applicant and also paid credit card bills of both the applicant and his mother, Ms L.

12. The respondent paid for motor vehicles for the use of the applicant and of the applicant’s mother. The respondent said that he did so on the basis that he would be reimbursed out of their share of the proceeds of the eventual sale of E Street. The applicant denied any such agreement.

13. In 2010, the applicant wrote a letter to the respondent. He was then living in E Street with his mother. In the letter he told the respondent that he was in a desperate financial situation and that his salary was not sufficient to make ends meet.

14. He stated, inter alia, “I can’t see how we can continue here – financially – it just isn’t viable anymore…” I infer that he was there suggesting that E Street be sold. The first page of the letter concluded, “Sorry it has come to this my friend and best mate. Love [Mr Biggar].”

15. Asked why, if he was in a relationship with the respondent in 2010, he had not simply had a conversation with him, rather than writing a letter, the applicant replied that he wasn’t living with the respondent in 2010. He was living at E Street.

16. The respondent paid for the purchase of antique furniture which was chosen by the applicant and used to furnish E Street. The respondent said in cross‑examination that he had spent about $160,000. In 2015, the respondent removed most of that furniture and gave it to Mr H.   

17. Senior counsel for the respondent, in submissions, said that the respondent was a wealthy and generous man. That submission has some force. The applicant acknowledged in cross-examination that the respondent was generous to him and also to others.

18. In cross-examination, Mr H said that the respondent had given him $2,800,000 to buy his house which is across the street from the respondent’s home in G Street. Mr H and his partner live in the house. In addition, the respondent gave Mr H and his partner antique furniture which he had purchased for $160,000. The respondent also bought cars for Mr H over the years.

19. Nothing in the evidence of the applicant suggests that the money which was provided to him by the respondent was of greater significance than generous assistance from a friend.

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

1. In 1994, the respondent and Ms L, the applicant’s mother, purchased E Street together as tenants in common for $1,200,000. The applicant located the property and suggested that the respondent buy it. The respondent told the applicant that he could not afford to buy on his own and suggested that Ms L sell Suburb D and contribute to the purchase. Ultimately, the property was purchased by Ms L as to five thirteenths and the respondent as to eight thirteenths. So much is not controversial.

2. The respondent’s interest in E Street was registered in the name of his self-managed superannuation fund. That fact was not known to the applicant. The applicant said in cross-examination that the respondent was very secretive about his financial affairs.

3. The superannuation fund was not permitted by law to purchase property for the use and occupation of the respondent.  

4. There is a dispute about the purpose of the purchase of E Street. The applicant’s version is that he and the respondent were purchasing the property as their eventual home together. The respondent’s version is that the property was a good investment and that it would be renovated and then sold.

5. The applicant relies on conversations he alleges took place between himself and the respondent. The respondent denied that he had ever told the applicant that E Street was to be a home for them together. No other person was present during the relevant conversations.

6. The respondent deposed that during the discussions before the purchase of E Street, he said to the applicant words to the effect of, “It can be rent free for 5 years to allow time for the place to be finished, and then you and your mother can pay rent. I will look at my superannuation fund buying a share as an investment”.

7. The superannuation fund paid the deposit of $120,000. The respondent paid the stamp duty and was reimbursed by Ms L for her share. The applicant deposed that he paid for his mother’s share of stamp duty and conveyancing fees from his savings.

8. The applicant supervised the renovations and work on E Street, undertaking some of the work himself. The applicant paid for some of the work. The respondent acknowledged that $133,500 was paid by the applicant for work. The respondent paid a much larger sum for work done on E Street.

9. Ms J deposed that the applicant “always referred to [E Street] as ‘his house’ when talking about it at the [practice]”. Ms J deposed that the respondent’s staff teased him about his accumulation of things and referred to E Street as “the extra large garage”. Ms J deposed that the respondent “referred to [the applicant] and [his mother] as caretaking and looking after this investment property at [E Street]”.

10. In 2004, the respondent’s accountants raised with the respondent their concern that E Street, as an investment property owned by the superannuation fund, was not producing an income. The accountants prepared a letter which the respondent took to Ms L and asked her to sign. In the letter, dated 29 June 2004, Ms L acknowledged that the superannuation fund acquired the property for investment purposes. She also acknowledged that, when the superannuation fund decided to sell E Street, she would agree and co‑operate with the sale. Ms L also acknowledged:

    I have occupied and lived in the property since 26 August 1994 and have contributed to the payment of council rates, water rates and insurance costs over the years. A verbal agreement was made with the trustees at the time of purchase of the property that no rent would be payable for the first five years or until all property renovations and improvements were completed. At present there is no formal rental agreement in place, and I agree to execute a formal rental agreement from 1 July 2004.

1. In 2006, the company which was the trustee of the superannuation fund was wound up and the respondent and his sister became trustees of the fund. The interest of the superannuation fund in E Street was transferred to the respondent and his sister as joint tenants. The respondent’s sister died in 2008, and the respondent thereafter retained the eight thirteenths interest in E Street in his name.

2. The respondent deposed:

   In February 2013 I obtained a valuation of the contents of the [E Street] property which belonged to me and which I had kept there. In August 2014 I obtained a valuation of the [E Street] property and in September 2014 I obtained a further valuation of the contents belonging to me there. For each valuation, the valuer and I attended at the [E Street] property and either [the applicant] or his mother were present, or I had made arrangements with them beforehand. I discussed with each of them my intention and desire to either realise my interest in the property or acquire her share so that I owned it solely. I did not want to leave the executors of my estate to have to deal with the joint ownership. I wanted to sort it out before [Ms L] died or I died.

3. The respondent retired in 2015. In January 2015, the respondent wrote a letter to Ms L referring, inter alia, to “our recent discussions regarding the sale of your share of the E Street property to me”. The letter attached a summary of the payments made by each the respondent and Ms L towards the property and referred to the fact that the respondent had recently obtained a valuation of the property. The respondent stated:

   Based on the MSV Valuation the value of your share of the property is $870,534 and taking into account the money loaned to you for the purchase of cars the net amount paid to you would be $646,187.

   I am pleased to offer you an amount of $700,000 for the purchase of your share of the property and payment of all outstanding loans owed by you to me.

4. The letter was hand delivered by the respondent and received by the applicant. It was the receipt of that letter, although unopened, which the applicant said caused him to form the view that the relationship had ended.

5. In January 2015, when the applicant deposed that the relationship came to an end, Ms L was the owner of the interest in E Street with the respondent. It was not until his mother died, in July 2016, and the applicant inherited her share of E Street, that the applicant and the respondent became joint owners of the property.

6. The applicant has not established that he and the respondent had any shared property.

(f)  the degree of mutual commitment to a shared life

1. The applicant relies on his assertion that he and the respondent purchased E Street for the purpose, ultimately, of living there together. The evidence does not establish that assertion.

(g)  whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship  

1. There was no provision for the registration of a de facto relationship in New South Wales until the Relationships Register Act 2010 (NSW) came into effect on 1 July 2010.

2. Section 5 of that Act sets out the criteria for registration in the following terms:

   5 Eligibility for registration

   (1) Two adults who are in a relationship as a couple, regardless of their sex, may apply to the Registrar for registration of their relationship.

   (2) A relationship cannot be registered unless at least one of the adults resides in New South Wales.

   (3) A relationship cannot be registered if:

   (a) either adult is married, or

   (b) either adult is registered under this Act or a corresponding law as being in a registered relationship or an interstate registered relationship, or

   (c) either adult is in a relationship as a couple with another person, or

   (d) the adults are related by family.

3. There was no evidence that the applicant was aware of those provisions.

4. I draw no inference from the fact that the relationship was not registered.

(h)  the care and support of children

1. Neither party had children.

(i)  the reputation and public aspects of the relationship

1. The applicant deposed that, “[The respondent] did not introduce me as his partner. I observed that [the respondent] was always concerned about how his family would react to his sexual preference and also about his professional reputation…”

2. In cross-examination, the applicant said that the relationship was clandestine.

3. In written submissions, counsel for the applicant stated, “The Applicant contends that they were known to be a homosexual couple.” Asked upon what evidence he relied to make that submission, counsel referred to a statement made by the applicant in his affidavit where he deposed, “I would describe our relationship as the worst kept secret”.

4. The applicant and the respondent never holidayed together. They never travelled overseas together, although the applicant did travel overseas with another friend.

5. The applicant deposed that he did not even tell his mother about the relationship until 1994 when the negotiations were in train for the purchase of E Street. In cross-examination he said that he had not told anyone else about the relationship.

6. Mr H deposed:

   I did not at any time consider nor did I have reason to consider that [the respondent] was in a de facto relationship with [the applicant] or that they had a physical or intimate relationship … I did not hear them use any form of endearment when referring to or talking to each other. [The respondent] did not refer to [the applicant] in those terms.

7. Ms J deposed:

   I did not see them being physically affectionate with each other although they were clearly close friends. [The respondent] never said anything to me about being in a relationship with [the applicant] nor make any comment which would infer a relationship with [the applicant] other than one of friendship.

8. Mr K deposed:

   I observed that [the respondent] and [the applicant] had a strong friendship. They got on well together. I did not observe any physical contact between them or anything which indicated to me that they were in a sexual relationship or were in a relationship other than one of friends. I did not have the view that they were a couple. [The respondent] did not tell me anything which would indicate they were a couple or that he was in a relationship with [the applicant]. 

9. In his affidavit, the applicant relied upon the events surrounding the death of the respondent’s sister, and her funeral, to infer the public nature of the relationship.

10. He deposed:

    Throughout the church service [Mr Crow] was holding my hand. When he was splashing the holy water on [the respondent’s sister’s] coffin he kept turning to me and saying “I love you”.

    Approximately 50 or 60 family and friends attended the funeral however [the respondent] stayed close to me and held my hand for comfort.

11. The respondent denied that evidence.

12. Mr H deposed:

    At the funeral service, I met and greeted the friends who attended and took them to their seats. [The respondent] was at the head of the aisle also greeting guests. I sat in the front row next to [the respondent] during the service … [The applicant] and his mother attended the funeral but were seated some rows behind. I did not talk to [the applicant] at the service other than exchanging greetings. I did not see [the applicant] with [the respondent] that day. 

13. There was a video recording of the funeral. The recording did not corroborate the applicant’s evidence.

14. The applicant has not established that he and the respondent were publicly regarded as a couple living together.

CONCLUSION

1. The applicant has failed to demonstrate, on the balance of probabilities, that he and the respondent “had a relationship as a couple living together on a genuine domestic basis.”

COSTS

1. Counsel were asked to address the issue of costs in submissions.

2. On behalf of the applicant, it was conceded that, if the application failed, he could not resist an order for costs.

3. The applicant’s Financial Statement sworn on 13 October 2016 disclosed saving in excess of $956,000. The applicant has been wholly unsuccessful.

4. The respondent seeks indemnity costs. He relies on two letters sent by his solicitors to the applicant’s solicitors.

5. The first letter, dated 2 November 2016, stated, “We are instructed to seek orders for the dismissal of your client’s application, a declaration that no relationship existed, and that your client pay our client’s costs on an indemnity basis.”

6. The second letter dated 8 November 2016, stated:

   We again invite your client to withdraw his Application forthwith. In the event that the Application remains on foot, a Response to your client’s Initiating Application seeking the orders foreshadowed above and in our previous letter will be filed and served in accordance with the Family Law Rules.

7. The Response was filed on 18 November 2016 and sought that the application be dismissed and that the applicant pay indemnity costs.

8. The law in relation to indemnity costs has been exhaustively stated in recent decisions of the Full Court of the Family Court of Australia.

9. It is sufficient to say for present purposes that there must be circumstances within the factors set out in s 117(2A) of the Family Law Act 1975 (Cth) which enliven the discretion to depart from the general rule that each party pay his or her own costs; and there must be exceptional circumstances to justify the award on indemnity costs or solicitor and client costs (see, for example, Prantage & Prantage (2013) FLC 93-544).

10. The respondent has not demonstrated that any exceptional circumstances exist.

11. The applicant will be ordered to pay the respondent’s costs on a party and party basis.

I certify that the preceding one hundred and eleven (111) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 14 August 2017.

Associate:

Date:  14/08/2017