Cadman & Hallett - [2013] FamCA 819

FAMILY COURT OF AUSTRALIA

CADMAN & HALLETT

[2013] FamCA 819

FAMILY LAW – DE FACTO RELATIONSHIP – Declaration sought pursuant to s 90RD of the Family Law Act 1975 (Cth) that a de facto relationship existed for the purposes of property settlement proceedings – Whether or not the parties continued to live in a de facto relationship for all or part of the period from January 2000 until October 2010 – Where one of the issues to be determined was when the relationship came to an end or “broke down” – Where in the circumstances of the case, it was not clear when one party formed the intention to end the relationship – Where there was no evidence that one party had either formed the intention or acted upon it before 1 March 2009 which is the relevant date for the accrual of jurisdiction – The Court found and declared that a de facto relationship existed between the parties.

Family Law Act 1975 (Cth)

Evidence Act 1995 (Cth)

Dahl & Hamblin (2011) FLC 93-480
Falk & Falk (1977) FLC 90-247
Hibberson v George (1989) 12 Fam LR 725
Howland v Ellis (2001) 28 Fam LR 656
In the marriage of S and T Batty (1986) 10 Fam LR 688
Pavey & Pavey (1976) FLC 90-051
Price & Underwood [2008] FamCAFC 46
S v B (No. 2) (2004) 32 Fam LR 429
Todd & Todd (No 2) (1976) FLC 90-008

APPLICANT:

Mr Cadman

RESPONDENT:

Mr Hallett

FILE NUMBER:

SYC

4542

2012

DATE DELIVERED:

18 October 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

16 and 17 September 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Johnston

SOLICITOR FOR THE APPLICANT:

Harris & Company Solicitors and Notaries

COUNSEL FOR THE RESPONDENT:

Ms Obrart

SOLICITOR FOR THE RESPONDENT:

G & D Lawyers

Orders

IT IS ORDERED

That the application for summary dismissal filed on 19 December 2012 is dismissed.
That pursuant to s 90RD of the Family Law Act1975 (Cth) it is declared that, as at 1 March 2009, a de facto relationship existed between Mr Hallett and Mr Cadman.
That the matter be listed for directions on 13 December 2013 at 10 am in relation to the application for adjustment of property interests before the Honourable Justice Rees.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cadman & Hallett 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 SYDNEY

FILE NUMBER: SYC 4542 of 2012

Mr Cadman

Applicant

And

Mr Hallett

Respondent

REASONS FOR JUDGMENT

The substantive proceedings before the Court arise out of a de facto relationship between Mr Hallett who is the applicant and is 47 years old and Mr Cadman who is the respondent and is currently 70 years old. Mr Cadman, by his Case Guardian Ms C, who is his sister, has brought an application for summary dismissal of the application of Mr Hallett. Thus Mr Hallett is the applicant in the substantive proceedings and the respondent in the proceedings before me and Mr Cadman is the respondent in the substantive proceedings and the applicant in the proceedings before me.
Throughout the course of the hearing they were referred to as Mr Hallett and Mr Cadman respectively and I propose to continue to refer to them in that way.
At the commencement of the hearing before me, Counsel for Mr Hallett submitted that there was no evidence that Mr Cadman was unavailable to give evidence as the term is used in s 63 of the Evidence Act 1995 (Cth) (“the Evidence Act”) which is set out below:

EVIDENCE ACT 1995 - SECT 63

Exception: civil proceedings if maker not available
(1) This section applies in a civil proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.
(2) The hearsay rule does not apply to:
(a) evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made; or
(b) a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation.
Note 1: Section 67 imposes notice requirements relating to this subsection.
Note 2: Clause 4 of Part 2 of the Dictionary is about the availability of persons.

The definition contained in Clause 4 of Part 2 is set out below.
Unavailability of persons
(1) For the purposes of this Act, a person is taken not to be available to give evidence about a fact if:
(a) the person is dead; or
(b) the person is, for any reason other than the application of section 16 (Competence and compellability: judges and jurors), not competent to give the evidence about the fact; or
(c) it would be unlawful for the person to give evidence about the fact; or
(d) a provision of this Act prohibits the evidence being given; or
(e) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or to secure his or her attendance, but without success; or
(f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success.
(2) In all other cases the person is taken to be available to give evidence about the fact.
In this matter, an application was filed on 30 October 2012 for the appointment of a Case Guardian. The applicant was Mr Cadman’s sister, Ms C. The application was supported by an affidavit of the Case Guardian in which she deposed:
I believe that my brother is a person not capable of adequately conducting or giving adequate instruction for the conduct of or responding to the Application…
I believe that my brother is incapable because he is suffering from dementia characterised by significant memory loss.
Annexed to the affidavit of the Case Guardian was a report from Mr Cadman’s treating specialist, Professor B, dated 11 October 2012. Professor B reported:
… [Mr Cadman] has been under my care since 2004 for a variety of neurological complaints including painful neuropathy and mild cognitive impairment.
The latter has worsened over the last several years and has reached the point where he has significant cognitive impairment consistent with Alzhemer’s Disease…His impairment persists despite his being on a number of medications. As such he is not able to conduct himself in the forthcoming proceedings.
Furthermore, his prognosis is such that he will continue to gradually decline.
That affidavit was relied upon in the proceedings before me.
Counsel for Mr Hallett was asked whether she wished to cross-examine Professor B and said she did not. The Case Guardian was not cross-examined about Mr Cadman’s competence to give evidence.
In those circumstances I found that Mr Cadman was not available to give evidence within the provisions of s 63 of the Evidence Act and therefore I allowed evidence, contained in the affidavits, of representations made by Mr Cadman to the deponents.

undisputed history

Between 1991 and 2000 Mr Hallett and Mr Cadman lived together in a de facto relationship. That is not in dispute.
The parties met in 1991. When they met Mr Hallett was an aspiring artist and Mr Cadman had a successful business. Mr Cadman had been infected with the Human Immunodeficiency Virus (“HIV”) and was 23 years older than Mr Hallett. Both of those were matters which they discussed between them.
In February 1991 they completed a retreat together and afterwards decided to travel together to India. Mr Cadman was a devotee of a spiritual teacher “Sai Baba” and he wished to introduce Mr Hallett to his teacher. In about March of 1991 they travelled together to India for several months returning to Australia in August of 1991. The whole of the expenses of that trip were paid for by Mr Cadman.
When they returned to Australia in August of 1991 they commenced to live together in a house owned by Mr Cadman in Sydney, sharing their domestic duties and continuing a sexual relationship. They each occupied separate bedrooms. On occasions Mr Hallett assisted Mr Cadman by working as his assistant in the business. They introduced one another to their friends and entertained friends in the Sydney home. Mr Cadman provided the financial support for the relationship. They travelled extensively together, often in pursuit of Mr Cadman’s spiritual quest and at Mr Cadman’s expense. Mr Cadman was also a devotee of a teacher, Mr X, and they travelled to study with Mr X both in India and in other countries, again at Mr Cadman’s expense.
In late 1994 Mr Cadman bought a small cottage in Town N on the South Coast of New South Wales. He provided the whole of the purchase price.
In January 1995 the parties travelled to India for an X retreat and returned in February 1995 to live in the home in Town N. The cottage at N had a large garden which was overgrown and the cottage itself was in disrepair. For approximately a year both Mr Cadman and Mr Hallett worked on the renovation of N, painting and repairing, and of the garden. They continued their sexual relationship but, as they had in Sydney, had separate bedrooms. During the period of the renovations, Mr Hallett started studying at the R School in Sydney, commuting for classes.
Mr Hallett and Mr Cadman became friends with many of the neighbours in Town N and socialised with the neighbours as a couple.
Mr Cadman continued to pay the expenses of the relationship and provided spending money for Mr Hallett. Mr Hallett received Austudy while he was studying at the R School and contributed that money to the relationship. In 1996 they travelled again to India and on their return Mr Hallett continued studying at the R School. An extension was built on the Town N property and a small tin shed was converted into an art studio. They continued to work in the garden together and entered a local garden competition. Mr Cadman continued his involvement with the X community and Mr Hallett was supportive of that involvement but not as interested as Mr Cadman was.
In 1997 they again travelled to India for an X retreat returning in February 1997 when Mr Hallett returned to the R School completing his final year of the course. They continued working in the garden, continued their sexual relationship, and continued to share the domestic duties.
In 1998, when Mr Hallett completed his studies at the R School, there was a conversation between Mr Hallett and Mr Cadman. Mr Hallett said to Mr Cadman “I don’t think I can make it. I’m not making any money. Maybe I should just get a proper job.” And Mr Cadman said “I don’t want you to do that … Your job is to be [an artist].” Mr Cadman remained entirely supportive of Mr Hallett’s career as an artist, both financially and emotionally. In mid-1998 Mr Cadman travelled to Europe for an X retreat and Mr Hallett remained at Town N looking after the house and garden. When Mr Cadman returned from the retreat he was even more committed to the X philosophy and talked about a further commitment which would include a vow of celibacy. Mr Hallett was concerned about this but was supportive of Mr Cadman’s commitment and spiritual journey.
Their relationship continued throughout 1999.
It is not disputed that by the end of 1999 Mr Hallett and Mr Cadman had lived together in a de facto relationship for eight and half years.
On 18 January 2000 Mr Hallett travelled to the United States to assess the possibility of studying in the United States. He remained there until returning to Town N on 18 April 2000. Mr Hallett’s case is that the de facto relationship between them continued although in a different form until October of 2010. The Case Guardian on behalf of Mr Cadman asserts that the relationship came to an end when Mr Hallett left Clifton on 18 January 2000.

the relevant legislation

The Family Law Act 1975 (Cth) (“the Act”) gives the Family Court of Australia jurisdiction to hear and determine property settlement proceedings between de facto couples provided that the relationship between the couple broke down after 1 March 2009. If the relationship ended before 1 March 2009 the Court has no jurisdiction to hear and determine an application for division of property. The legislation deals with the adjustment of interests in property between de facto partners where there has been a “breakdown” of the relationship. Other than to specify that the term “breakdown” does not include the determination of the relationship by reason of death of one of the parties the word is not otherwise defined. The Case Guardian, in the case outline, submits that the court will find that the relationship broke down when Mr Hallett left on 18 January 2000 to go to New York.
Section 4AA(1) of the Act sets out the factors to be considered when the Court determines whether or not parties live in a de facto relationship. This section is relevantly set out below:
4AA(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
4AA(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
4AA(3)No particular finding in relation to any circumstances is to be regarded as necessary in deciding whether the persons have a de facto relationship.
4AA(4)A court determining whether a de facto relationship exists is entitled to have a 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.
4AA(5) For the purposes of this Act:
(a)A de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and
(b)A de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.
In considering whether the parties to these proceedings, having regard to all the circumstances of their relationship, have had, at any particular time, a relationship as a couple living together on a genuine domestic basis, it is necessary to consider the evidence which relates to each of the relevant subparagraphs of section 4AA(2).

A. The duration of the relationship

It is not disputed that between August of 1991 and January 2000 Mr Hallett and Mr Cadman lived in a de facto relationship. The issue for determination is whether or not they continued to live in a de facto relationship for all or part of the period from January 2000 until October 2010 and that issue is to be determined having regard to the balance of the matters in subparagraph (2).

B. The nature and extent of their common residence

Mr Hallett and Mr Cadman maintained a common residence firstly at Sydney and then at Town N between August 1991 and January 2000. On 18 January 2000 Mr Hallett travelled to the United States and remained there until he returned to Town N on 18 April 2000. On return to the residence at Town N he continued to occupy his own bedroom as he always had. It is the contention of the Case Guardian that the relationship had come to an end when Mr Hallett left in January 2000. There is no evidence that Mr Cadman communicated to Mr Hallett that he wished to terminate the relationship at this time or that his wish was communicated in any way to Mr Hallett.
I do not accept that the relationship came to an end in January 2000. What remains to be determined is “When did the relationship end?”
At the end of 2000, Mr Hallett again travelled to the United States to enrol in a two week course which he enjoyed so much that he enrolled for a whole semester. The Case Guardian relies upon a card written by Mr Cadman dated “Christmas 2000” and addressed to Mr Hallett. The card read:
Good bye again!? Or “God’s speed!”
Whatever happens always know that you are in my heart as I know I am in yours.
Go with all blessings and trust and love out into the great world. I know you will find what you seek. If only one could know what we truly seek it would all be a bit easier. Find your Grail! Become free!
I am old and you are young and its time and right that you move on. Don’t forget these years which have meant so much to both of us. Don’t let me down.
Go with my heart and love.
The card was written almost a year after the date on which the Case Guardian asserts the relationship ended and after the parties had continued to live together from April to December 2000, in the same physical circumstances as they had previously lived.
Mr Hallett interprets the message to be a message of encouragement and support of a different phase in the continuing relationship. The Case Guardian interprets the message to be an indication of the termination of their relationship. In my view either interpretation is available if one reads only the card, but one must look to the way in which their relationship continued over the years to determine the significance of the message. Whatever its significance, the card cannot be relied upon as evidence that the relationship broke down in January 2000.
Mr Hallett travelled to the United States again in late December 2000. Between December 2000 when he travelled to the United States and 25 June 2001 when Mr Hallett returned to Town N, the parties communicated by telephone between three and five times per week. During that period Mr Hallett had sexual relationships with other people in the United States and discussed those relationships with Mr Cadman.
When Mr Hallett returned to Town N on 25 June 2001 Mr Cadman gave him a car. They continued to live together at Town N and Mr Cadman continued to pay their joint expenses.
In February 2002 Mr Hallett had a solo exhibition at Town N.
On 2 June 2002 Mr Hallett returned to the United States to do another semester at the Y School and Mr Cadman travelled to the United States at Christmas time and stayed with Mr Hallett for about three weeks through to mid-January. They then went together to Town L, where Mr Cadman did an X retreat and Mr Cadman returned to Australia at the end of January 2003.
On 30 May 2003 Mr Hallett returned to Town N. Life resumed between Mr Hallett and Mr Cadman at Town N. Mr Hallett worked.
After he returned to Town N in 2003 Mr Hallett discovered that he too had HIV. Mr Cadman was very supportive and they decided together that the best thing to do was to continue life as normally as possible. In August 2003, Mr Cadman started to build a studio in the garden. The studio was intended for the use of Mr Hallett. Although there was some dispute about the use of the studio the Case Guardian in her evidence conceded that Mr Hallett was the only person who used it and Mr Cadman did not use the studio for his work. I am satisfied that the studio was built for Mr Hallett’s use.
They continued to live together at Town N, they went to concerts and to dinner together. In November 2003, Mr Hallett had another exhibition of his work at Town N.
On 8 February 2004 Mr Hallett returned to the United States for another semester at the Y School. Mr Cadman accompanied him and they stayed together in a unit where they shared a bed. Mr Cadman took Mr Hallett out for dinner for his birthday in February 2004 and bought him a gift. Mr Cadman returned to Australia shortly thereafter.

Mr Cadman continued to financially support Mr Hallett.
After Mr Cadman returned to Town N he discovered that he required surgery. He telephoned Mr Hallett and told him that he was to have heart surgery. Mr Hallett says that he then said to Mr Cadman “My God who’s going to look after you, I’m coming home.” And Mr Cadman said “Don’t be silly, it’s fine I don’t need you to come home. It’s not a big deal, and [Ms C] (the Case Guardian) said she is coming to stay with me anyway.” Mr Hallett did not return to Australia for the surgery but telephoned often and spoke both to Mr Cadman and to Ms C.
Mr Hallett returned to Town N on 31 October 2004. Shortly after he returned, Mr Cadman bought him a car. They travelled together with the Case Guardian to inspect the car and Mr Cadman paid about $5,000 for the car which Mr Hallett drove home.
The parties discussed the X community and by the end of 2004 Mr Cadman told Mr Hallett that he had decided that he would leave the community.
Mr Hallett spent Christmas in 2004 with his family in Melbourne and returned to Town N in January 2005. Friends of Mr Hallett stayed with the parties in January 2005.
The parties continued to work together in the garden. In mid 2005 Mr Cadman was hospitalised in Sydney. Mr Hallett visited every day and brought Mr Cadman home and cared for him. Together they looked at a neighbouring property which had come on the market and discussed Mr Cadman’s buying the property.
Mr Hallett celebrated his 40^th birthday in February 2006. Mr Cadman and Mr Hallett gave a lunch party for about 20 friends at Town N.
In April 2006, Mr Hallett was accepted into the Masters programme of the Y School. Mr Cadman sponsored him. The evidence in relation to the sponsorship is set out below in the context of their financial relationship.
Mr Hallett left for the United States on 30 May 2006. Mr Cadman drove him to the airport. In the United States, Mr Hallett spoke to Mr Cadman by telephone three or four times each week. Mr Cadman sent packages by mail and cards and letters.
Mr Hallett discussed returning to Town N for Christmas but Mr Cadman encouraged him to remain in the United States saying “Don’t worry about it …, stay there and enjoy a white Christmas in New York, how many opportunities will you have to do that”.
Mr Hallett remained in the United States in 2007. The parties continued to speak on the telephone. Mr Cadman told Mr Hallett that he had bought the neighbouring property.
Mr Hallett had an exhibition in the United States in April 2008 as part of his graduation. Mr Cadman travelled to the United States and stayed with Mr Hallett in his apartment. They dined out with friends and went to the opera together. Mr Hallett was to graduate in June and they discussed their plans. Significantly, Mr Cadman said to Mr Hallett “When are you coming home?” Mr Hallett said “Well I finish in June, I have to finish the course after all this. I want to see if I can put on an exhibition once the course finishes. But after that I’m coming home, I’m looking forward so much to it”.
It was not suggested to Mr Hallett that the reference to “home” in that conversation meant any place other than Town N.
The relationship appeared to deteriorate in the last half of 2008. On 18 October 2008, Mr Hallett sent an email to Mr Cadman in the following terms:
Hi
i rang tonite but u were out or in bed.
I wanted to ask your advice about my meds. I changed them a couple of weeks ago but they were not working. So i have decided to take a pill holiday for a couple of months. My doctor suggested i see my doctor in sydney. He didn’t seem to care that much.
so thats wat i am doing. I am sure i will be allright although my t cells will probably drop. I think i would rather have a shorter life of quailty than put up with those side effects anyway. I couldn’t tolerate the stomach stuff anymore.
I feel like my time in [the United States] is up. I don’t think i’ll be wanting to come back. I have tried with the art thing ..but it just feels like its not meant to be. I don’t want to punish myself and keep hitting my head against a brick wall. So i don’t know wat the future will bring. I don’t even know where home is anymore. I know u are in love with [Z] now so i don’t even know if i can come back to u.
should i ring to make an appointment at st v’s for december?
(Errors as in original)
Mr Cadman responded on 19 October 2008. In a lengthy email, he included:
[Town N] is your home for as long as you want it to be and as long as it works for us both. Certainly our relationship is not the same as it was sixteen years ago (really!) but one wouldn’t honestly have expected – or wanted – that. Let’s let the past be the past and be open to the future. As you say, we have no knowledge what it will bring.
I consider the terms of that email to be suggestive of the relationship’s continuing at that time.
Mr Hallett sent an angry email on 24 October 2008 in the following terms:
I rang because i am sick and needed a little support. I feel like i have no friends and i am living on 10 dollars a day .. i can’t even afford to buy vitamins. My life is shit and i feel u don’t give a shit about me anymore. Sometimes u are a real prick … so fucking superior. I am sorry if it wasn’t the vet or [Z] on the phone.
Good luck with holding your therapist’s hand and her making u feel better. You were too superior to do emotional work in the past thinking u were above it all. Aren’t u a bit old for it now! Why don’t u go on another retreat too. Thats usually your way for u to avoid your life.
U will never see me again. I was looking forward to coming home because i felt like it was my refuge and i need it. But Fuck u! I would prefer to kill myself and i probably will.
Your a fucking cunt!!
(Errors as in original)
Mr Cadman’s response sent 5 November 2008 is set out:
Dear …
I think we’ve been silent long enough now and we should talk about what is happening.
Just what were you trying to say when you called me last and then emailed me? Did you seriously mean all those things you said and wrote? Because if you did, and still do, there’s probably not much more to say. From your letters i know you’ve done the same to others, the Brazilian for example and someone else not so long ago and it seemed to be the end with them.
Do you seriously want to end our long relationship of love and tenderness and concern and sharing and support for one another, occasionally imperfect though it might have been, bang, like this? after almost twenty years?
Please tell me if you do, I deserve to know. Though there may not be much left of it at this point, I have a life too.
You know how deeply I feel for you.
….
I consider the words that are highlighted in the email above to be suggestive of the relationship’s continuing at this time.
Mr Hallett planned to return to Town N in November 2008. He was told by Mr Cadman that he (Mr Cadman) was ill and they spoke on the telephone. Mr Hallett received an email from a friend of Mr Cadman, advising him that Mr Cadman was ill and had asked that Mr Hallett be informed. The email states that Mr Cadman was worried that he would not be at the airport to meet Mr Hallett when he arrived.
I am conscious of the fact that Mr Hallett had been absent from Australia from 30 May 2006 until the end of November 2008. However I do not consider the physical separation to be determinative of the existence of the relationship. Rather it is the parties’ attitude which is significant. The emails referred to above suggest that the parties considered their relationship to be ongoing.
When Mr Hallett arrived in Sydney, the Case Guardian picked him up at the airport and they went to see Mr Cadman in hospital. When Mr Cadman was discharged from hospital, Mr Hallett and Mr Cadman returned together to Town N and Mr Hallett cared for Mr Cadman with assistance from the Case Guardian.
During Mr Cadman’s convalescence, Mr Hallett attempted to discuss resuming their sexual relationship. Mr Cadman was evasive. Mr Hallett told Mr Cadman that he loved him and wanted to take care of him. They were physically affectionate towards one another. They hugged and kissed goodnight and sometimes slept in the same bed.
In January 2009 Mr Hallett understood that Mr Cadman would need care and support into the future. He told Mr Cadman “I want to stay here and take care of you”. Mr Cadman told Mr Hallett that he did not want Mr Hallett to miss out on things.
The parties had a joint exhibition in Town N in January 2009. Also in January Mr Hallett’s sister and her husband and Mr Hallett’s mother stayed with the parties at Town N. Mr Hallett, Mr Cadman and Mrs H Snr dined out together and also dined with neighbours. Two of Mr Hallett’s friends visited and stayed separately at Town N.
Mr Hallett continued to use the Town N address on official documents.
In January 2009 Mr Hallett was offered an exhibition in the United States. Mr Cadman encouraged him to accept. Mr Hallett left for New York on 28 January 2009. As he was leaving, Mr Cadman said to him “I’m sorry I’ve been so difficult. You know how proud I am of you.”
After Mr Hallett arrived in the United States, he and Mr Cadman talked on the telephone a few times each week. The calls lasted for an hour. Mr Cadman sent Mr Hllett money occasionally. In July 2009 Mr Cadman sent Mr Hallett $5,000.
In August 2009, Mr Cadman sent emails to his friends advertising Mr Hallett’s exhibition. In September 2009 he sent a press release about the exhibition to local newspapers. Mr Cadman spoke about coming to the United States for the exhibition but was prevented from doing so by the illness of his sister, T. Mr Cadman asked Mr Hallett to buy a painting and bring it home for him.
Mr F swore an affidavit and was cross-examined.
Before Mr Hallett returned to Town N, a conversation took place between Mr Cadman and Mr F where Mr F asked “Who is [Mr Hallett]” and Mr Cadman said that Mr Hallett is “my ex who lives in [the United States]”. Mr Cadman referred to Mr Hallett’s attempts to get a green card and that Mr Hallett’s visa had run out. There had been no communication by Mr Cadman to Mr Hallett that he, Mr Cadman, considered Mr Hallett to be his ex-partner.
Mr Hallett returned to Australia on 13 November 2009. Mr Cadman met him at the airport and they drove to Town N where Mr Hallett settled into his old room.
By this time, Mr Cadman had said nothing to Mr Hallett to indicate that, in his view, their relationship was not continuing.
Mr Hallett noticed things in the studio which were not his and was told by Mr Cadman that they belonged to “my friend [Mr F]”.
Mr Cadman bought a car for Mr Hallett paying $5,000.
They continued to live together in the house at Town N, gardening, sharing cooking, dining together, shopping together, watching movies after dinner and sitting and talking together. They went out to dinner together and to the movies. They continued to be physically affectionate to one another.
Mr Hallett drove to Melbourne to spend Christmas with his mother and on about 2 January 2010 he telephoned Mr Cadman to tell him that he and his mother were leaving for Town N. Mr Cadman said “That’s great. I can’t wait to see you both”.
When Mr Hallett and his mother arrived at Town N, Mr F was there. Mr Hallett and Mr Cadman argued and Mr Hallett left and stayed with friends for one or two days, then returned to Town N. Mrs H stayed at Town N for four or five days and Mr F left soon after Mrs H left.
Mr Hallett attempted to discuss the future and Mr Cadman was evasive. Mr Hallett said “I’m ready to move back. I’m ready to move in next door like we talked about”. They talked about Mr Hallett going back to the United States and Mr Hallett said “Don’t sell the car. I won’t be long this time”.
On the morning Mr Hallett was to leave, Mr Cadman said to him “I don’t want you to go. You shouldn’t be going”. Later Mr Cadman said “I’m sorry I’ve been so difficult. You know how proud I am. Don’t worry about next door, that’s always going to be there for you when the time is right.”
Mr Hallett left for the United States on 29 January 2010. On the same day, Mr Cadman sent an email. He referred to “after all these years starting to melt into one an another”. Mr Cadman referred to them both being at a turning point. The email concluded:
I woke at 5am this morning thinking I can’t believe I let/encouraged you to leave yesterday. Now I see that it was just my ego screaming and that it was the right thing to do. I think this is a ‘crucial’ turning point in your life and going into it with empty hands is the right way to go.
Don’t be frightened but do be excited, see as wide a picture as you can, step back from the ego and leave all decisions to the higher ‘you’ – and hang on tightly, it’s going to be an exciting ride.
I love you,
…
PS Don’t agonize about … (the house next door): when the time is right the door will swing open.
Later the same day Mr Cadman sent an email saying:
I don’t want to say “welcome Home”. Your home is here. Missing you badly as I woke up at 5am (as usual) – you would still be over the middle of the Pacific. Why do I feel like this when you’re not here? Agood question for Prof [B].
Have a good stay and come back soon.
With all my love … (in [TownN])
Mr Hallett was offered a scholarship in Europe. He discussed it with Mr Cadman who was excited.
On 5 April 2010, Mr Cadman sent an email in which he referred to Mr F and said “[Mr F] is a good friend and helps keep me stable. He comes and stays a couple of nights a week. He’s good company and keeps me pretty grounded and doesn’t let me get away with much. We are not lovers”.
On 20 May 2010 there was an exchange of emails. Mr Hallett wrote of feeling “kicked out of my nest” which Mr Cadman regarded as “a bit overdramatic”. Mr Cadman said “I agree that the first week or so you were here was a bit strained but once we got used to being together again it seemed to me all was just great, indeed by the time you had to leave it all felt deeply upsetting seeing you leave again”. He said “But don’t worry, I am still your loyal and loving friend – as much as ever”.
On 10 June 2010, Mr Cadman emailed a video of parrots on the verandah at Town N with the message “Just so you don’t forget where your home is”.
In July 2010 after an argument on the telephone, Mr Cadman said to Mr Hallett “I don’t know if I want to be responsible for you any more”.
Mr Hallett returned from Europe to the United States in August 2010. In a telephone conversation, he mentioned Mr Cadman’s comment and Mr Cadman said “I certainly don’t remember saying that. I must have been having a bad day”.
In October 2010, Mr Hallett and Mr Cadman spoke on the telephone. Mr Cadman handed the telephone to Mr F who said “[Mr Cadman] doesn’t want you here anymore. You need to move on with your life. He can’t remember inviting you. How long do you need? A few days…a week?” Mr Hallett then asked Mr Cadman if he was welcome (at Town N) and Mr Cadman said “Of course, this is your home, you’ve lived here for years”.
On 20 October 2010, Mr Cadman said in an email to Mr Hallett “Living with me in [Town N] is not right or an option”.
On 21 October 2010, Mr Cadman said in an email, referring to Mr Hallett’s coming to Town N “This should give us a good opportunity for closure before your new life in Australia begins”.
In an email on 22 November 2010, Mr Cadman said “I don’t think that living together in [Town N] is an option any more. I’ve had time for a good think about this and I can see that that story is over and it’s obvious that it’s time for us to go our own ways. He referred to “a clean break without bitterness”.

C. Whether a sexual relationship exists

It is not disputed that a sexual relationship existed between the parties from 1991 until 1998. In the middle of 1998 Mr Cadman travelled to Europe and attended an X retreat. When he returned he talked to Mr Hallett about making a greater commitment to the X philosophy, including taking a vow of celibacy. Mr Hallett gave evidence that he was concerned about this turn of events but remained supportive of Mr Cadman’s “spiritual journey”. Mr Hallett was aware that the X philosophy encourages renunciation and students are encouraged to commit to celibacy for a period of time, usually three years, to enhance spiritual practice.
Mr Cadman did not commit to celibacy immediately but over the period between 1998, when he returned from the retreat, and the beginning of 2000, the sexual relationship between the parties waned. Mr Cadman continued to discuss celibacy and their sexual relationship had ceased by the time Mr Hallett left for the United States in January 2000.
The sexual relationship was not resumed.
During the period Mr Hallett was in the United States between December 2000 and June 2001, he had sexual relations with other people and that was discussed with Mr Cadman. Mr Cadman referred to those relationships in an email in 2008.
Mr Hallett continued to have sexual relations with people other than Mr Cadman on his subsequent visits to the United States.

D. The degree of financial dependence or interdependence, and any arrangements for financial support, between them

From August 1991 until 2008, Mr Cadman financially supported Mr Hallett although Mr Hallett had income from time to time. From late 2004 until May 2006 he received a Centrelink payment. Although in the application to Centrelink he described himself as “single” I am satisfied that he did so because Centrelink at that time did not recognize same sex de facto relationships. The relevant legislation to provide for the recognition of same sex relationships was not passed until 2008.
In 2006, when Mr Hallett was accepted into a programme at the Y School, Mr Cadman was his sponsor for the purpose of obtaining a visa. A letter was written by Mr Cadman’s accountants, dated 11 August 2006, which is set out in full below:
RE: LETTER OF SUPPORT
STUDENT VISA APPLICATION – [MR HALLETT]
FINANCIAL ASSISTANCE BY [MR CADMAN]
We act as accountants and advisors to both [Mr Cadman] and [CC] Pty Ltd – a registered investment company domiciled in Australia, 50% beneficially owned by Mr [Cadman].
We understand that from Mr [Cadman] that he plans to sponsor [Mr Hallett] in respect of his student visa application to properly enter and study in America at the [Y] School. We also understand that the level of support required for living and study expenses will be approximately $US 2,000 per month.
As an agreed sponsor we note that Mr [Cadman] needs to demonstrate that he has sufficient funds and capacity to assist with tuition and living expenses during the period of the intended study.
Please accept this is as a letter of support asserting Mr [Cadman’s] financial ability to sponsor [Mr Hallett], and we note: -
1.Mr [Cadman] maintains a personal share portfolio and other investments of an approximate value of $ 900,000 AUD.
2.Aside from this portfolio, Mr [Cadman] holds a private residence of value of at least $1.5M AUD.
3.Mr [CAdman’s] personal income per year is approximately $ 50,000 - $ 55,000 AUD per year.
4.[CC] Pty Ltd runs a share/options portfolio of value in excess of $2M at last reconciliation by his brokers – 30 June 2006.
5.[Mr Cadman] has a director/shareholder loan with the company in the amount of approximately $ 870,000 AUD, which could be drawn upon at any time – at call.
I consider that the letter is strongly suggestive of the relationship between the parties being ongoing at that time.
In 2007, Mr Cadman bought the neighbouring property in Town N. In a telephone conversation he said to Mr Hallett “I’m going to fix it up. I think it will be good for you. I’d like you to live in it when it’s done”.
In 2007 and 2008 Mr Cadman paid money regularly into Mr Hallett’s Visa account. In her affidavit, the Case Guardian deposes to a conversation with Mr Cadman in 2008 about payments from his bank account by automatic deduction. She said that, in the conversation, Mr Cadman told her that the relationship had come to an end but that Mr Hallett was still a friend and needed help and Mr Cadman was fond of him. Her recollection of that conversation was not challenged, but the conversation has to be viewed in the light of her evidence that he had been losing his memory since 2004 and that he was extremely private about his personal life. It is not suggested that Mr Cadman told Mr Hallett at this time that the relationship had come to an end.

Mr Cadman had no recollection of setting up a periodic payment. In cross-examination, the Case Guardian agreed that the payments made by Mr Cadman to Mr Hallett’s Visa account in 2007 and 2008, the statements being in evidence, could not have been made by periodic debit because they are not made every month and the amounts and the dates vary from month to month. She conceded that Mr Cadman must have made a specific arrangement with his bank, whether by going to the bank or otherwise, in relation to each payment.
Mr Cadman ceased making regular payments on 11 June 2008 when Mr Hallett graduated with his Masters qualification. He resumed irregular payments in 2009.
Mr Cadman bought two cars for Mr Hallett, the second purchased for $5,000 in late 2009.
In January 2010 Mr Cadman assured Mr Hallett that the second Town N house would always be there for him.
Until July 2010, Mr Cadman had a will which, according to the Case Guardian, gave to Mr Hallett the right to reside at the neighbouring Town N property and the use of income from investments for his life. Mr Cadman told Mr Hallett of the provisions of the will in 2008. The maintenance of the will leaving a life estate to Mr Hallett is strongly supportive of their being a continuing relationship between them.
In July 2010, in a telephone conversation, Mr Hallett said to Mr Cadman “I miss you. I want to come home” and Mr Cadman replied “I don’t know if I want to be responsible for you anymore”. Mr Cadman made a new will on 20 July 2010, revoking the old will and instead leaving a bequest of $20,000 to Mr Hallett. The making of the new will in July 2010 is strongly supportive of Mr Cadman’s having then formed an intention to bring the relationship to an end.

E. The ownership, use and acquisition of their property

From the commencement of their relationship, the parties lived in properties owned by Mr Cadman, firstly in Sydney and then at Town N.
In 2007, Mr Cadman purchased the neighbouring property and told Mr Hallett he intended that property to be for Mr Hallett’s use when the renovations were completed.
In early 2010, Mr Cadman reassured Mr Hallett that his home was in Town N and that the neighbouring property would be available to him.
Until June 2010 Mr Cadman referred to Town N as Mr Hallett’s home.

F. The degree of mutual commitment to a shared life

The email correspondence between the parties until mid 2010 demonstrates clearly their commitment to each other and their shared life.
I consider that the email correspondence between the parties is a better indicator of their understanding of the nature of their relationship than the perception of third parties.

The reputation and public aspects of the relationship

Both Mr Hallett and the Case Guardian gave evidence that Mr Cadman was a very private person who did not show affection in public.
Mr Hallett’s sister regarded them as a couple and did not observe any change in their relationship until late 2010.
Mr Hallett’s mother was introduced to Mr Cadman soon after they met and visited them in their home at Sydney and at Town N. During an early visit in Sydney, Mr Cadman said to Mrs H “Don’t worry about [Mr Hallett], …, I will look after him”.
Mr Hallett’s mother gave evidence that she did not observe any physical intimacy between the parties, even from the earliest days of the relationship. However, she said they were affectionate, ate meals together and had friends over for dinner. Mr Hallett told his mother that the neighbouring house at Town N would be his home “one day”.
Mr Cadman visited Mrs H’s home in Victoria with Mr Hallett. Mrs H said “To me it was the respondent bringing his partner home”.
Mr Cadman told Mrs H on many occasions that he had built the studio for Mr Hallett.
When Mrs H visited Town N, she formed a friendship with neighbours, LL and YY. The neighbours went out to dinner with Mr Cadman, Mr Hallett and Mrs H. Until her last visit, Mrs H observed “the respondent and the applicant continued on the same as they had always done from what I could see”.
Ms E met the parties in the United States in May 2001. The three became good friends and when Mr Cadman visited the United States to spend time with Mr Hallett she socialised with them and spent a weekend with them.
Ms S, who was an old friend of Mr Hallett, met Mr Cadman in 1991. Thereafter she lunched and dined at the house in Sydney and visited in Town N. Of the parties she said “They were always together”. In 2006 she observed that the parties “were acting just as they always had”. Mr Hallett talked to Ms S about the future when he might need to be Mr Cadman’s carer.
Mr Cadman’s sister gave evidence that when Mr Hallett returned to Australia in December 2009, they had a conversation where Mr Hallett talked about “getting the relationship back on track” and said that she formed the view in December 2009 that Mr Cadman “had finished” with Mr Hallett. She too gave evidence that Mr Cadman was a very private person and that they did not discuss his relationship with Mr Hallett.
Before December 2009, Ms C said they had Christmases together with their sister T (who had died before Christmas 2009). She said, in cross-examination, words to the effect of “yes, [Mr Cadman] and [Mr Hallett] – the whole family”.
No witness gave evidence that Mr Cadman and Mr Hallett were not in a de facto relationship. The issue was when the relationship came to an end or “broke down” to use the phrase in the legislation.

how does a court determine when a relationship “broke down”

In 1976, as to the meaning of “separation” in the context of Family Law Act proceedings, in Todd & Todd (No 2) (1976) FLC 90-008, Watson J at 75,079 said:
In my view “separation” means more than physical separation — it involves the destruction of the marital relationship (the consortium vitae). Separation can only occur in the sense used by the Act where one or both of the spouses form the intention to sever or not to resume the marital relationship and act on that intention, or alternatively act as if the marital relationship has been severed. What comprises the marital relationship for each couple will vary. Marriage involves many elements, some or all of which may be present in a particular marriage — elements such as dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in public and private relationships.
In Pavey & Pavey (1976) FLC 90-051, referring to the passage from Todd, the Full Court at 75,211 said:
We are in general agreement with this statement of the law and wish to add only two qualifications to it … (W)e do not accept the statement — “it involves the destruction of the marital relationship” … what the Act speaks of is the breakdown of the marriage, so it is appropriate to use the word ‘breakdown’ instead of the word ‘destruction’. In practical terms, this may make no difference, but it is in keeping with the wording of the Act.
In 1977, the Full Court of the Family Court dealt with the concept of the breakdown of the consortium vitae in Falk & Falk (1977) FLC 90-247 at 76,333, saying:
Where one party only has formed the relevant attitude and intention (that) should have been communicated to the other party directly or indirectly. Where other aspects of the relationship continue a party should not be heard to claim separation on the basis of a secret intention unknown to the other party. There are many ways of communicating an intention or change of attitude.
In 1986 in In the marriage of S and T Batty (1986) 10 Fam LR 688, Wilczek J said that a breakdown of the marital relationship, the consortium vitae, involves both an intention to sever the relationship on the part of one or more of the parties and an act on the intention.
The Supreme Court of New South Wales (Court of Appeal), in Hibberson v George (1989) 12 Fam LR 725 at 740, per Mahoney JA said, considering similar provisions in the New South Wales De Facto Relationships Act:
The essence of the present relationship lies, not in law, but in a de facto situation. I do not mean by this that cohabitation is essential to its continuance: holidays and the like show this. But where one party determines not to “live together” with the other and in that sense keeps apart, the relationship ceases, even though it be merely, as it was suggested in the present case, to enable the one party or the other to decide whether it should continue.
Hope and McHugh JA agreed with these conclusions.
This approach was adopted by the Queensland Court of Appeal in S v B (No. 2) (2004) 32 Fam LR 429. Dutney J at paragraph 48, with whom McPherson and Williams JJA agreed, said:
Applying the passage of Mahoney JA in Hibberson and George, which I set out earlier, 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.
In Howland v Ellis (2001) 28 Fam LR 656 the New South Wales Court of Appeal (Meagher, Stein JJA and Ipp AJA) found, at paragraph 19, with respect to separation that:
…more than a mere physical separation is required for a de facto relationship to come to an end. The physical separation of the parties must be accompanied by an intention on the part of either partner to permanently end the relationship.
In Price & Underwood [2008] FamCAFC 46. The Full Court at paragraph 54, considering this issue said:
…Whilst it was not in dispute that the husband made known to the wife in April 2007 that he wished to divorce, we were not referred to any evidence of the husband directly, or otherwise by his actions, conveying to the wife that he had made a conscious decision to bring the marriage to an end in October 2005 or any time thereafter up until April 2007. Whilst the husband’s counsel pointed to the events deposed to by the wife in her Response as constituting an ongoing marital relationship as being no more than indicia of responsible parenting, he did not direct us to any statements by the husband, or any conduct by him, which must have led the wife to know that the husband regarded the marriage as at an end before April 2007.
Their Honours at paragraphs 41-2 say:
In Clarke & Clarke (1986) FLC 91-778 Fogarty and Nygh JJ cited with approval the further statement of principle set out by Watson J in Todd (No 2) at 75,079 relevant to separation, that is, of living separately and apart. Lindenmayer J, with whom Fogarty and Nygh JJ agreed, explained, citing with approval Todd (No 2), Pavey and Falk, that the cessation of cohabitation involves a severance of the marital relationship, and stressed the importance of both physical separation and severance of the marital relationship. His Honour said:
However, it is also clear from sec. 49(2) that a separation (i.e. a cessation of cohabitation or a severance of the marital relationship) may be found to exist notwithstanding that the parties continue to occupy the same residence or to perform household duties, one for the other. Conversely the absence of residence under one roof and/or the performance by either party for the other of household duties do not necessarily establish a separation or a state of non-cohabitation.
The point made here is that parties may live apart and regard their marriage as continuing.
The Full Court stressed the importance of the necessity of one party communicating to the other his intention to end the relationship.
Thus the authorities establish that in order to establish that a relationship has “broken down” for the purpose of the legislation, it is necessary that one party forms an intention to end the relationship, that the party acts upon the intention and that the intention is communicated to the other party.
In the circumstances of the present case, it is not clear when Mr Cadman formed the intention to end his relationship with Mr Hallett. There is no evidence that he had either formed the relevant intention or communicated it to Mr Hallett in January 2000 which is the date relied upon by the Case Guardian. There is no evidence that he had either formed the intention or acted upon it before 1 March 2009 which is the relevant date for the accrual of jurisdiction. I am satisfied that the evidence establishes that Mr Cadman formed the intention to end the relationship in mid-2010 when he changed his will and I am in no doubt that he communicated his intention to Mr Hallett in his emails in October 2010 to which reference has been made earlier.
I therefore find that, on 1 March 2009, a de facto relationship existed between Mr Cadman and Mr Hallett, and hence dismiss Mr Cadman’s application for summary dismissal filed 19 December 2012

the alternate application

It was the position of Counsel for Mr Hallett that, in the event that I was unable to find that a de facto relationship existed for the whole of the period until separation, I would find, in the alternate, that a relationship existed for those periods when Mr Hallett and Mr Cadman lived together in Australia, including the period from 13 November 2009 until 29 January 2010.
That this would have been sufficient to ground the application for property settlement is made clear in the judgement of the Full Court in Dahl & Hamblin (2011) FLC 93-480 , where their Honours, at paragraphs 48-9 said:
Thus our overall conclusion is that if parties to a de facto relationship separate after 1 March 2009, one or both may commence proceedings under Part VIIIAB if they can establish that their relationship has existed for periods aggregating at least two years and that at least one of those periods occurred after the commencement of Part VIIIAB on 1 March 2009. It matters not at least for the purposes of establishing jurisdiction under s 90SB, how long ago the other period, or periods occurred, or what were the circumstances of any breakdown in the relationship (although as we have said, the circumstances of their periods together and of their periods apart will, of course, be important in the determination of a “proper” maintenance order or a “just and equitable” order for alteration of property interests).
It will be appreciated that the answers which we have given to the questions raised in this appeal concerning the intended meaning of the word “periods” in s 90RD(2)(a) and s 90SB(a), may well be categorised as representing a “beneficial” interpretation of those legislative provisions. But we consider that this approach is justified given the Attorney-General’s explanation in his second reading speech of the beneficial or remedial nature of the legislation, being that it was intended to “provide greater protection for separating de facto couples and simplify the laws governing them”. (See the discussion in Pearce & Geddes, Statutory Interpretation in Australia, 7th ed, LexisNexis Butterworths, Australia, 2011 at [9.2].)
Having regard to my conclusions set out above, I do not propose to consider the alternate application.

I certify that the preceding one hundred and thirty-nine (139) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 18 October 2013.

Associate:

Date: 18 October 2013