Cane & Kemble
[2023] FedCFamC2F 290
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cane & Kemble [2023] FedCFamC2F 290
File number(s): BRC 11658 of 2021 Judgment of: JUDGE JENKINS Date of judgment: 17 March 2023 Catchwords: FAMILY LAW – de facto relationship – threshold issue – declaration as to the date of separation – leave out of time- hardship to applicant – prejudice to respondent – where court considers reasonable probability of success – applicant granted leave to file out of time for property division – adverse finding of credit against both parties –tampering with evidence – no order as to costs – recusal Legislation: Evidence Act 1995 (Cth) s 140,
Family Law Act 1975 (Cth) s 4AA, 44
Cases cited: Althaus & Althaus [1979] FamCA 47
Fairbairn v Radecki [2022] HCA 18
Gadzen & Simkin [2018] FamCAFC 218
Hall & Hall [1979] FamCA 50
Jacenko & Jacenko [1986] FamCA 25
Radecki & Fairbairn [2020] FamCAFC 307
Sharp v Sharp [2011] FamCAFC 150
Tormsen and Tormsen [1993] FamCA 151
Whitford & Whitford [1979] FamCA 3
Division: Division 2 Family Law Number of paragraphs: 121 Date of last submission/s: 21 October 2022 Date of hearing: 12-13 May 2022, 8-10 June 2022, 18 August 2022 & 9 September 2022 Place: Adelaide Counsel for the Applicant: Mr Casey on 12-13 May 2022, 8-10 June 2022 and 18 August 2022; Ms Smiroldo solicitor from Stone Group Lawyers on 9 September 2022 Solicitor for the Applicant: Stone Group Lawyers Counsel for the Respondent: Mr Bowler Solicitor for the Respondent: Williams Barristers & Solicitors ORDERS
BRC 11658 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR CANE
Applicant
AND: MS KEMBLE
Respondent
order made by:
JUDGE JENKINS
DATE OF ORDER:
17 MARCH 2023
THE COURT ORDERS THAT:
1.The Court declares, pursuant to section 90RD(1) of the Family Law Act 1975 (Cth) (“the Act”), that the Applicant and the Respondent were in a de facto relationship, within the meaning of section 4AA(1) of the Act, for a period of at least two (2) years, and that this de facto relationship ended in or about September/October 2016.
2.The Applicant be granted leave to file his application for property division out of time.
3.There be no order as to costs.
4.Judge Jenkins is recused from any further hearings in this matter.
5.The matter be referred to the National Assessment Team for allocation to a Judge other than Judge Jenkins.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Cane & Kemble has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE JENKINS
INTRODUCTION
This is a de facto property matter and comes before the Court on the threshold question of the date of separation and, if the de facto husband is out of time to bring property proceedings, whether he should be granted leave out of time to proceed with his application.
BACKGROUND
The applicant, Mr Cane, (“Mr Cane”) was born in 1964 and is currently 58 years of age. He was born in the Country B and remains a Country B citizen.
The respondent, Ms Kemble (“Ms Kemble”) was born in 1970 in Country C and is 52 years of age.
Each party has two adult children from former relationships. They have no children together.
The parties met on an online dating site in 2009 when Mr Cane was still living in the Country B.
Ms Kemble and her children, Mr D (“Mr D”) now aged approximately 26 years and Ms E (“Ms E”) now aged 22 years travelled to the Country B in or about the middle of 2009 to spend time with Mr Cane.
Ms Kemble and her children returned to Country C in late 2009. Mr Cane says this was due to visa issues, Ms Kemble says the parties had broken up although they remained in contact.
Ms Kemble and Ms E returned to the Country B in mid-2010 and it is from this date Ms Kemble asserts that the parties commenced co-habitation. Mr Cane says the parties commenced co-habitation in 2010.
Thereafter, Ms Kemble was required to leave the Country B every 90 days due to visa requirements. In or about early 2011 Ms Kemble left the Country B, however was denied re-entry due to the incorrect paperwork. This resulted in a physical separation until August 2011 when Mr Cane travelled to be with Ms Kemble in Country C.
In or about 2011 Mr Cane opened a business in Country C which Ms Kemble assisted in running.
In 2012 the parties moved to City F, Australia, where they lived with Ms E.
It is common ground the parties resided together in City F for two years and that they separated in or about 2014 when Ms Kemble and Ms E moved to the Region G.
It is also common ground that in or about 2015 the parties recommenced cohabitation at a property leased by Ms Kemble at Suburb H, although Ms Kemble says that by late 2015 they were sleeping in separate beds.
In 2016 Ms Kemble opened the first of a number of businesses (“the business”). Mr Cane says this was a joint venture.
Ms Kemble says the parties’ final separation occurred in or about September/October 2016. This is denied by Mr Cane.
Mr Cane continued to be involved in the business. The parties are in dispute as to the nature of his ongoing role.
In 2016 Ms Kemble and Ms E moved to Suburb J.
It is common ground that between early 2017 and mid 2017 Ms Kemble reconciled with her former partner Mr K although Mr Cane did not necessarily see this as a separation.
Mr Cane said he continued to reside at the Suburb H property for the remainder of 2017 and that the parties recommenced their intimate relationship and regularly stayed over at each other’s homes, had dinner and otherwise frequently spent time together.
In 2018 Ms Kemble says she did not renew the lease on the Suburb H property. It was somewhat unclear where Mr Cane lived for the first half of 2018 however it appeared to be somewhere in Suburb H. He also gave differing versions of where he lived in the second half of 2018, which I shall address further in my reasons.
From sometime in late 2018/early 2019 Mr Cane lived with a flatmate in Suburb L.
In 2019 Ms Kemble moved to Suburb M.
In 2019 Mr Cane moved to Suburb N to live with another flatmate.
Ms Kemble says she commenced a new relationship with Mr O in 2020.
Mr Cane says his de facto relationship with Ms Kemble continued until 20 August 2020.
THE EVIDENCE
This matter was conducted via Microsoft Teams. Although there were occasional technical glitches, I am satisfied that I was able to see and hear all of the evidence. I am also satisfied that given both parties gave their evidence via Microsoft Teams that neither had an advantage over the other.
It has not been possible to include every aspect of each of the parties’ evidence. However, I have taken all the evidence into account. Just because I have not mentioned something in these reasons that does not mean that I have not considered it.
Section 140 of the Evidence Act 1995 (Cth) sets out that the standard of proof in these proceedings is to a balance of probabilities.
The parties
I found both parties to be problematic witnesses. There were significant parts of each parties’ evidence which were inconsistent and/or improbable. Furthermore, each accuses the other of tampering with evidence. For example, each produces differing versions of the same emails allegedly sent from Mr Cane to Ms Kemble. In regard to those messages I am unable to determine which version is correct save to say clearly one party or possibly both parties are lying. I was also concerned that each party may have intentionally mislead the Court with respect to other aspects of their evidence.
In relation to Mr Cane, he annexed to his affidavit a series of text messages from Ms E which he said showed he had been living with Ms Kemble for the second half of 2018. However Ms E pointed out in her evidence that these text messages must have been edited because they show a missed call out of sequence. Specifically, a missed call on 24 November 2018 sits between a message on 27 November 2018 and another on 2 December 2018. I find that Mr Cane altered the text messages so as to corroborate his assertion that he resided with Ms Kemble for the second half of 2018.
With respect to Ms Kemble, there were a number of issues. The first relates to what Ms Kemble describes as an “exit agreement” (“the exit agreement”); a document which she says reflects the parties’ agreement as to the division of their assets. Ms Kemble says that the exit agreement was signed by both parties in 2018 in front of Justice of the Peace, Ms P. Ms P gave evidence and was then recalled later in the Trial. She told the Court that each time she witnesses a document she makes a separate entry for each document into a logbook. She said in this case on the relevant date there was an entry that she had witnessed Ms Kemble sign an affidavit (prepared for another proceeding) but there was no record of witnessing her sign the exit agreement. Nor was there an entry for witnessing Mr Cane sign the agreement. Under cross-examination Ms P conceded that it was possible she forgot to enter witnessing the exit agreement into the logbook. However when she was recalled she clarified this evidence and said it was not possible she would forget two entries, namely one for each of Ms Kemble and Mr Cane who had both allegedly signed the exit agreement.
I find that whilst anything is possible, it is not probable that Ms P forgot to record two entries into her logbook, being the witnessing of each of the parties’ signatures on the exit agreement. Consequently I find that Ms Kemble was not telling the truth when she said that Mr Cane signed the exit agreement and that she altered the agreement to falsely portray that he did.
In addition I find that Ms Kemble was not truthful when she told the Court that a reference to Country B partner in a video she made for a job application was a reference to another partner called Mr Q. Her evidence was that this was a person she had only dated once or twice and yet she refers to him as a partner. Furthermore, there is no mention of Mr Q in her affidavit or by any of her witnesses. There is also reason to believe the video was made in 2018 not 2016 as she claimed, as the metadata of the video indicates this to be the case.
Ms Kemble also changed her evidence in regard to an allegation that Mr Cane had pushed her over on 10 April 2017 and which she reported to her GP the following day. During cross-examination she confirmed it was Mr Cane who had pushed her down the steps however when confronted with evidence that he was overseas at the time, she said that it could have been Mr K .
Mr Cane’s witnesses
Mr R
Mr R (“Mr R”) is a friend of Mr Cane. He says until early 2019 he was a mutual friend of both parties as he lived in the Suburb H residential tower where they resided; although he appears to have spent most, if not all, of his time socialising with them at bars and restaurants rather than in their home.
Mr R’s evidence was of fairly limited value. For the most part he worked fly in fly out where his rosters varied from four weeks on/one week off to three weeks on/three weeks off. His interactions with the couple were in Suburb H between 2016 and early 2019. Since 2019 he has continued to socialise with Mr Cane but could not explain why he has not seen Ms Kemble. Furthermore he was unsure when Ms Kemble moved out of Suburb H as, to use his words, he did not “take that much of an interest in other people’s living arrangements”. He conceded that although he had seen the parties around town socialising, this did not mean they were living together. Further to this, Mr R says he saw them kissing and cuddling between early 2017 and mid 2017 when Mr Cane says they were separated.
Mr S
Mr S (“Mr S”) said he became “casual friends” with the parties in mid-2016 however his evidence was of almost no assistance. He said in cross-examination that he had not seen Mr Cane very much after 2018. His evidence was that he believed Ms Kemble moved from Suburb H sometime in 2017 but under cross examination stated he could not actually recall when. He had little understanding of where Mr Cane was living at any given time. Nor did he know where Ms Kemble was living when she moved out of Suburb H save to say he would still see the parties together in Suburb H but not at great frequency. Indeed he agreed it was “very rare” that he spent time with Ms Kemble and later on less and less.
The only specific incident he could recall was an occasion in early 2020 when the parties were together at a location known as Location T in Suburb U. His evidence was that they were interacting affectionately and he observed Ms Kemble introduce herself as Mr Cane’s partner.
Dr V
Dr V (“Dr V”) was called and commenced giving evidence however after various hostile exchanges with Counsel for Ms Kemble and the Court, Counsel for Mr Cane indicated he would not be relying on Dr V’s affidavit, he was excused from giving evidence and the affidavit was withdrawn.
Mr W
Mr W (“Mr W”) was a former flatmate of Mr Cane. He too had limited knowledge of the parties’ relationship as he only met Mr Cane in 2019. However he gave his evidence in a relatively straightforward manner and made concessions where appropriate. His evidence was that Mr Cane would be absent for large periods however he did not know firsthand where Mr Cane was during those times. He also conceded he had limited interactions with Ms Kemble. However he was clear that Ms Kemble had stayed over, in Mr Cane’s bedroom. He also recalled that in early 2020 Mr Cane and Ms Kemble had both been at the home and were excited about opening a new business in Suburb M.
Ms P
Ms P (“Ms P”) is a Justice of the Peace. Ms P gave her evidence on two occasions, having been recalled to clarify an issue around the witnessing of the documents. Ms P gave evidence in a straightforward manner. Although it was clear Ms P had prepared her affidavit at the request of the solicitor for the applicant, and largely in response to questions proposed by them, I do not accept this compromised her credibility in regard to the central issue in dispute.
Ms Kemble’s witnesses
Ms E
Ms E is Ms Kemble’s daughter and not surprisingly was very supportive of her mother. Her evidence was somewhat problematic in that she agreed Ms Kemble had assisted her with recalling dates for the affidavit, however she otherwise gave her evidence in a straightforward manner and appeared to be a credible witness.
Ms E supported her mother’s assertion that the parties separated in late 2016. She said she had never visited Mr Cane thereafter at his homes, however she did invite him to her graduation a year after separation and to Christmas in 2019. She also said that Mr Cane stayed with her mother and herself for a two week period in 2018 when he had nowhere else to stay.
Ms E’s evidence about Mr Cane’s role in the business was of limited assistance as she conceded that in 2018 she only worked at the business part-time and since 2018 had not been there often at all. Furthermore, she conceded she did not know what work Mr Cane did remotely.
Mr D
Mr D is Ms Kemble’s son. Mr D also had the help of his mother in constructing his affidavit and clearly a number of his assertions were not based on firsthand experience. He made certain statements about Mr Cane’s role in the business but it was not evident to me on what factual basis they were made. Nonetheless, he was adamant that Mr Cane had not attended Christmas in 2016 or any family birthdays after that time. He corroborated Ms Kemble’s evidence that the last significant family event that Mr Cane had attended was Mr E’s graduation in 2017.
Mr O
Mr O (“Mr O”) is Ms Kemble’s current partner. He met Ms Kemble in 2020 and moved in with her in 2021. He is also clearly a strong supporter of Ms Kemble. Mr O agreed he had a very poor opinion of Mr Cane and gave evidence that Mr Cane had subjected Ms Kemble to two and a half years of harassment, although I note that none of the alleged harassment is contained in his affidavit. Indeed, there is no mention at all of Mr Cane except for the last paragraph in which it is said that the proceedings were placing a lot of stress on Ms Kemble. It is unclear if he has ever met Mr Cane.
Mr X
Mr X (“Mr X”) is Ms Kemble’s brother. His evidence was of little assistance. He had only met Mr Cane on one occasion at a bar in 2015. Ms Kemble had not told him very much about the relationship except they had split up “years ago”, he thought in 2015/2016. In addition, as far as he was concerned Mr Cane had nothing to do with the business and had never been involved in it. This was clearly inconsistent with Ms Kemble’s own evidence. Mr X also had his fiancée’s assistance in preparing the affidavit.
Ms Y
Ms Y (“Ms Y”) is Ms Kemble’s friend and is engaged to her brother, Mr X. Ms Y had also prepared her affidavit in consultation with her fiancé.
In any event it was apparent that she too had only met Mr Cane on one occasion. She says that the family socialise together often and he had not attended any family events between 2014 and 2021. Although this was in contrast to the evidence of Ms Kemble and her children that he attended family functions until 2016. Further to this, Ms Y says Mr Cane was never present when she visited Ms Kemble in hospital in 2017, 2018, 2019 and 2021, nor when she visited Ms Kemble’s homes in Suburb J and Suburb M.
Mr Z
Mr Z (“Mr Z”) is Ms Kemble’s stepfather. His evidence was also of limited value given he had not seen Ms Kemble in person since early 2020. Mr Z and Ms Kemble’s mother live in Country C. He said he had been to Australia six times in three years but had never seen Mr Cane. Other than this, the majority of his evidence was based on what he had been told by Ms Kemble who, he said, he speaks to twice weekly. He did not know what work Mr Cane did but was emphatic that Ms Kemble and Mr Cane had never been in business together. Furthermore his evidence was that Mr Cane did not have a job or contribute to the household income. He clearly had no knowledge of Mr Cane’s role with the business, which, even on Ms Kemble’s case, involved significant tech support albeit as a contractor. It was also apparent that despite speaking to Ms Kemble regularly, Mr Z knew nothing about her new partner.
Ms AB
Ms AB (“Ms AB”) is Ms Kemble’s mother. Ms AB, like her husband, had not visited Australia for a number of years. Her evidence was the last time she saw Ms Kemble in Australia was in 2019. She also had no knowledge of Ms Kemble’s new partner, stating that Ms Kemble spoke more to her husband than to her about such matters.
When asked about the date of separation her evidence was that she felt the parties had separated when she arrived Australia in 2016. Her evidence was “mothers feel these things”. She said that she stayed with Ms Kemble in 2017 and did not see Mr Cane the entire time. He was not in attendance at the grandmother’s 90th birthday and she did not see him when she stayed with Ms Kemble in 2019. Otherwise, most of Ms AB’s evidence was based on information provided by Ms Kemble.
Ms AC
Ms AC (“Ms AC”) has been friends with Ms Kemble since 1986 and lives in Country C. She stayed with Ms Kemble on only one occasion between 2016 and 2020, being about early 2018. The majority of her evidence was based on what Ms Kemble had told her. Unfortunately it was also full of unhelpful opinions and commentary on matters of which she had no firsthand knowledge.
Dr AD
Dr AD (“Dr AD”) is a friend of Ms Kemble and has worked at her businesses since early 2017. He has had no interaction with Mr Cane. Dr AD was very cavalier in his evidence and ultimately conceded under cross-examination that he was prepared to say what was required to put an end to the dispute. Accordingly, I place no weight on the evidence of Dr AD.
Ms AE
Ms AE (“Ms AE”) is a friend and former employee of Ms Kemble. She worked part-time between 2018 and 2019 as a customer service officer at the Suburb H business (and part time as a customer service officer at the business from 2017). Her evidence was largely full of “understandings” and other assertions without any factual basis. In any event, under cross-examination she said her relationship with Ms Kemble was professional and she would never talk about who she was dating. Accordingly it was of no assistance.
Ms AF
Ms AF (“Ms AF”) has been friends with Ms Kemble since 2017. She has never met Mr Cane. Like many of the other witnesses, her evidence was based largely on what she was told by Ms Kemble and again Ms Kemble assisted her with dates for the affidavit. Furthermore, she had no idea of the nature of the relationship or Mr Cane’s role in the business because according to her Ms Kemble “is a very private person”. Her evidence was of no assistance to me in determining this matter.
Ms AG
Ms AG (“Ms AG”) has been a friend of Ms Kemble since 2002 and also lives in Country C. She stayed with Ms Kemble on only one occasion in 2016. It would appear almost all of Ms AG’s knowledge of the relationship comes from what Ms Kemble has told her.
THE LAW
Section 4AA (1)(c) of the Family Law Act 1975 (Cth) (“the Act”) defines a de-facto relationship as follows:
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.
(emphasis added)
In Fairbairn v Radecki [2022] HCA 18 (11 May 2022) the High Court (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ) heard an appeal from a decision of the Full Court of the Family Court of Australia in Radecki & Fairbairn [2020] FamCAFC 307.
The High Court held:
[6]: “The Act contains no exhaustive definition of the term ‘breakdown’, save that s 4 of the Act relevantly provides that in relation to a de facto relationship, it ‘does not include a breakdown of the relationship by reason of death’ …
…
[21]…The primary judge found that the respondent’s conduct during the demise of the appellant’s mental capacity was inconsistent with a ‘fundamental premise’ of their relationship, namely the strict separation of their assets. That inconsistent conduct, all of which occurred while the appellant was ‘labouring under an incapacity’, comprised: the entry into a new enduring power of attorney that ‘favoured [the respondent’s] rights over hers’; the respondent instructing solicitors to prepare an updated will ‘on terms vastly more favourable to him’; the respondent’s ‘unwillingness to cooperate’ with the appellant’s children in the administration of her affairs; the respondent’s ‘persistent’ refusal to permit the Trustee to sell the home … while ‘neglecting to pay any of the [appellant’s] care costs’, thus depleting her estate; the respondent’s proposal that the appellant’s ‘super be used in the first instance to meet her costs’, and then his subsequent proposal that ‘he pay the … fees in the first instance and be reimbursed by the [appellant’s] estate’; and the respondent’s ‘ongoing and deliberate frustration’ of the Trustee’s lawful administration of the appellant’s financial affairs. The primary judge found that this conduct was ‘unequivocally indicative of and consistent only with … the cessation of the de facto relationship as it previously existed’. ( … )
…
[23]…The Full Court reviewed the conduct identified by the primary judge. None of the conduct was found to be fundamentally inconsistent with a continuing de facto relationship … ”
The High Court continued:
[33] … cohabitation of a residence or residences is not a necessary feature of ‘living together’. That phrase must be construed to take account of the many various ways in which two people may share their lives together in the modern world. Two people, for any number of reasons, may not reside in the same residence, but nonetheless be in a de facto relationship in the sense required by s 4AA.
[39] The language of s 4AA of the Act and its reference to ‘living together’ requires no different approach to determining whether a relationship exists of the kind defined. ‘Living together’ … should be construed as meaning sharing life as a couple. Section 4AA does not prescribe any way by which a couple may share life together. Its language is sufficiently broad to accommodate the great variety of ways a de facto relationship may exist.…
PERIODS OF COHABITATION
The High Court has made it clear there is no requirement that the parties actually live together under the one roof for the purpose of a de-facto relationship; such relationships come in all forms and there is no set criteria. Nonetheless, it is one of the factors to be considered when looking at whether the parties were in a genuine domestic relationship.
Ms Kemble is emphatic that the parties did not live together after December 2016 save for a two week period when Mr Cane stayed with her in late 2018. Even on Mr Cane’s evidence there were large periods after 2016 where the parties maintained separate residences.
Mr Cane has given two reasons for the periods of non-cohabitation; firstly because he was afraid Ms Kemble would throw him out and he would be homeless and later because Suburb M was not close enough to the business in Suburb H where he says he was working. He said he did not drive and there was no convenient public transport that went between Suburb M and Suburb H.
Nonetheless, Mr Cane’s evidence was difficult to follow with respect to the dates of co-habitation and/or the status of the relationship at any given time. In his trial affidavit he says that there were two periods of separation, the first being between December 2014 and 28 August 2015 (which is agreed). However with respect to the second period of separation, his evidence is as follows:
(a)At paragraph 25 of his trial affidavit he says the parties were separated for a period of 13 months between about January 2017 and February 2018;
(b)At paragraph 55 (a)(iv) of his trial affidavit he says the second period of separation was from January 2017 for eight months;
(c)In the witness box Mr Cane gave evidence that in mid-2017:
…she came to me, she says it's not working out with [Mr O]; he's not sleeping with her. He's not attracted to her; it's just not working out for her. She wants, you know, to try, you know - and then she just starts back with me in regards to dating and being together and staying the night with me, sleeping with me and that type of thing. That's my – that’s my definition of that. Are - were we living together at the time? No. Were we having sexual relations and having dinner every day together: yes…
(d)In paragraph 61 of his trial affidavit he says they resumed their relationship in January 2018 but he retained his accommodation at Suburb N (although his evidence was also that he did not move to Suburb N until 2019);
(e)At paragraph 55 (a)(v) of his trial affidavit he says between mid 2018 and late 2018 they lived as a family in Suburb J;
(f)In paragraph 115 of his trial affidavit he says in or about 2018 they resumed their relationship;
(g)At paragraph 82 of his affidavit filed 31 January 2022 he says:
In about 2018 [Ms Kemble] and I resumed our relationship, however, I decided I could not live with [Ms Kemble]…
(h)Mr Cane said in the witness box that he moved to Suburb J in the middle of 2018 and remained there until late 2018.
Due to the inconsistencies in Mr Cane’s own evidence I cannot determine with any certainty the periods he says the parties were said to have cohabitated from early 2017 onwards.
DEGREE OF FINANCIAL DEPENDENCE OR INTER-DEPENDENCE/MUTUAL PROPERTY
The parties have never owned any joint property or had a joint bank account per se, although Ms Kemble was authorised to use Mr Cane’s account until she cancelled this in 2021. Mr Cane says the reason he was not allowed to have access to Ms Kemble’s accounts was because she was financially controlling.
It would appear that during the relationship (and for about a year after, on Ms Kemble’s case) Mr Cane had access to business credit cards and otherwise his expenses were paid for by the company. This changed in or about early 2018 when he started receiving regular payments from Ms Kemble. Ms Kemble says these were payments pursuant to the exit agreement and Mr Cane says they were an allowance.
It is unclear to me, why, if the payments were “exit payments” they commenced 11 months before the exit agreement was said to have been signed by Mr Cane. However it is equally unclear to me why Mr Cane would start receiving an allowance at that time and why this allowance was paid well beyond even Mr Cane’s date of separation.
Another aspect of the evidence which is hard to reconcile is the development of the property in Suburb AH. Mr Cane says that both parties were involved in this development. Ms Kemble says she had nothing to do with this project. Whilst it is common ground that the progress payments for this project went through Ms Kemble’s business account, she says she did not authorise this. Nonetheless, if Mr Cane’s table in his affidavit is correct, between 2016 and 2017 in excess of $500,000 was transferred from the project into the business account. Again whilst not evidence, the table is detailed and could easily be disproved by Ms Kemble, however she has not done so. Furthermore, in her email to the plaintiff in the dispute she does not specifically deny her involvement in the project.
In addition, although Ms Kemble denies that Mr Cane had any significant role in the business other than ad hoc tech assistance, she does not seek to explain significant transfers that Mr Cane alleges have been made to his account between 2015 and 2021.
Ms Kemble agrees that post her separation date she continued to pay for Mr Cane’s health insurance. She says this was a condition of his visa although there was no evidence to support this.
Mr Cane says Ms Kemble continued to include him as a spouse on her tax returns however neither party has provided any corroboration for or against this assertion.
PUBLIC ASPECTS OF THE RELATIONSHIP
It is not in dispute that for several years after Ms Kemble says the parties separated, Mr Cane and Ms Kemble continued to socialise, have meals together and talk regularly on the phone. However, Ms Kemble says this was because she was placating Mr Cane to prevent him hacking into her websites and jeopardising the business.
Ms Kemble alleges that Mr Cane hacked her websites between 2014 and 2015 so she “felt it essential to invite him to the Region G” so that she could learn how to develop and operate the websites herself. However she then resumed her relationship with him and remained with him for another year. She also allowed him to continue to have access to the website until 2021.
Furthermore, Ms Kemble stated that she had provided evidence of this hacking to her friend Ms AG, “sending her screenshots of Mr Cane accessing her computer via TeamViewer”. However Ms AG denied ever being shown such evidence.
Ms Kemble alleges that Mr Cane would text her demanding money or he would hack her websites, however was unable to produce those texts because:
(a)They were received by Viber and WhatsApp and she was unable to subpoena them;
(b)She could not produce screenshots of the demands because her phone had been run over three or four months before the Trial;
(c)The screenshots were not in the affidavit because her solicitor may have taken them out;
(d)No messages were saved on iCloud although some photos had come back with “weird dates”.
When Ms Kemble was questioned as to why she could not have hired someone else to perform the tech role, she responded, “I didn’t have the resources or income” Again, this was not in the affidavit because “my solicitor at the time didn’t think I should elaborate on this”.
Having heard the parties give evidence, I find it difficult to accept that Ms Kemble would have maintained her “friendship” with Mr Cane and/or continued to contract him to work for her because he had hacked or had threatened to hack into her website. She struck me as a very robust and savvy business woman and not someone afraid to take action such as notifying the police which she did not do until mid 2021, some five years after her date of separation. Furthermore, Ms Kemble was also ultimately able to sever all ties with him without any apparent damage to the business.
Mr Cane provides a detailed table of the dates and times he says the parties socialised and holidayed together, post 2016 and includes photos of the parties together in 2018 and 2019. Ms Kemble merely provides a blanket denial of various paragraphs, including the reference to the table, without explanation as to when she says the photographs were taken and in what capacity. Mr Cane also attests that the bank records of the parties show they were in the same place on the same dates. Ms Kemble does not endeavour to explain this.
Ms Kemble does concede, however, that after the relationship ended in October 2016, she assisted Mr Cane with transport to get errands done. She also concedes she sometimes felt she had to eat out with him or he would close down her websites or server.
Whilst Mr Cane uses terms like “honey” and “dear” in some of his texts, Ms Kemble says he used words like “honey” when he could not remember people’s names.
Although there is an extensive amount of text evidence annexed to the affidavit material on behalf of Mr Cane, the majority of the exchanges appeared business related.
WHETHER A SEXUAL RELATIONSHIP EXISTED
Mr Cane says the parties continued to have a sexual relationship up and until between early 2020 and mid 2020. Ms Kemble says the sexual relationship ended in October 2016.
Mr Cane relies on two photos sent to him by Ms Kemble on her birthday in 2019 being one of a gift she received from him of flowers and one blowing him a kiss. These photos are suggestive of a closer and possibly intimate relationship, which is denied by Ms Kemble.
Mr W attests to Ms Kemble staying over at their house in 2019 and hearing sounds of an intimate nature through the walls. Mr W struck me as a credible witness. Accordingly, I find that the parties continued an intimate relationship in some form until in or about 2019.
MUTUAL COMMITMENT TO A SHARED LIFE
Mr Cane also asserts that he continued to attend Ms Kemble’s family events up and until he says the parties separated.
Ms Kemble entirely denies this save that he attended Mr E’s graduation in 2017. Although Ms Kemble concedes that her children continued to contact Mr Cane and provide him with gifts on special occasions such as Christmas and birthdays.
Mr Cane says that the parties continued to socialise together, indeed “most evenings of the week” with mutual friends however there was no evidence from any “mutual friends” or indeed any other witnesses to support this assertion. Indeed Mr Cane’s witnesses do little to corroborate the relationship at all, as none of them attest to spending much time with the couple, especially in the last couple of years.
For the most part Ms Kemble’s witnesses are equally unhelpful as many live in Country C and have not spent much time in Australia, especially in the last few years due to the ban on travel. However her children and her brother and sister in law, who live on the Region G, deny Mr Cane’s attendance at family events, save for Mr E’s graduation in 2017.
Nonetheless, even on Mr Cane’s own evidence, Ms Kemble did a number of things that were inconsistent with a couple who had a joint intention to have a shared life namely:
(a)In 2018 she transferred the Company AJ into the Trustee for Company AJ Trust, without his knowledge;
(b)In 2018 she registered the Trustee for Company AK Job Search Engine and transferred the Company AK recruitment search engine into the Trust without his knowledge; and
(c)In 2019 she transferred the Company AL into the Trustee for the Company AL Unit Trust without his knowledge.
Finally, there appears to be an astounding amount of phone communication between the parties, as the phone records, which according to the respondent’s Tender Bundle index, extend to approximately 50,000 pages but this could be consistent with an ongoing business relationship or friendship and thus not necessarily of a de facto relationship. It is not the role of the Court to go through such voluminous material to determine what is relevant and I made it clear to Counsel that unless they specifically referred to a particular part of the evidence in their submissions, I would not be taking it into account in my judgment.
ANALYSIS
The evidence in this matter contained numerous inconsistencies on both sides. Much of it was irreconcilable. I have found both parties to be untruthful with respect to certain parts of their evidence and that both have tampered with evidence in an attempt to corroborate their cases.
Ultimately while I have significant reservations about Ms Kemble and her version of events, Mr Cane bares the onus of satisfying the Court on the balance of probabilities that the parties continued in a de facto relationship after the date Ms Kemble says they separated. Whilst it appears that the parties continued some form of relationship, appeared to be in business together (to some degree), socialised together and maintained an intimate, possibly sexual relationship, I cannot be satisfied that the parties were in a genuine domestic relationship after October 2016.
LEAVE OUT OF TIME
Section 44(5) of the Act creates a two-year time limit for initiating an application for financial proceedings.
As I have found the de-facto relationship concluded in October 2016 and Mr Cane filed his application on 31 August 2021 for a property division, he is clearly out of time.
The law
Pursuant to section 44(5) of the Act, proceedings for a property settlement in relation to a de-facto relationship must be instituted within two years of separation.
Pursuant to section 44 (6) of the Act the Court may grant leave to apply out of that time period if the Court is satisfied it would cause hardship to the party if leave were not granted.
Accordingly, there are two limbs – firstly Mr Cane must demonstrate that he will suffer hardship if leave is not granted. If the Court is not satisfied that hardship will be caused, that is the end of the application. Secondly, if the Court is satisfied that hardship will be caused if leave is not granted, the Court must then consider whether or not to exercise its discretion and grant leave to proceed out of time.
Statutes fix time limits to ensure that proceedings are properly pursued within an appropriate timeframe. That way, potential respondents can have certainty that, after a specified period of time, an action will not be brought against them. It also ensures that evidence can be readily available to the Court and not lost with the passage of time.
The Full Court has confirmed that such timeframes are not an arbitrary cut-off point, and has recognised that if action is not taken within the appropriate time frame, the quality of justice may deteriorate.
In the often quoted case of Whitford & Whitford [1979] FamCA 3 (“Whitford”), the Court observed that the power to grant leave to proceed out of time should be exercised liberally in order to avoid hardship, but not in a manner that would render the timeframe nugatory.
When the Court is asked to consider leave out of time application the Court must determine if there is a reasonable claim to be heard.
As set out by his Honour Justice Nygh in Jacenko & Jacenko [1986] FamCA 25 at par 14:-
…the general principle is that on the issue of the establishment of a prima facie case the Court proceeds on the basis that the evidence of the applicant, unless it is inherently unbelievable or contradictory, should be accepted, and the Court should therefore decide whether or not on that basis a prima facie case has been made out. If leave is granted, then it is for the Court conducting the ultimate hearing to determine whether that prima facie case can be established.
Hardship and the question of a reasonable claim
Hardship has been interpreted as meaning “substantial detriment” (for example, see Hall and Hall [1979] FamCA 50; Whitford). The loss of the right to pursue a claim is not of itself “hardship”. However the consequences that flow from the loss of that right that may constitute hardship.
In determining whether Mr Cane will suffer hardship, the Court must consider the nature and quality of the claim. That is, the Court must consider whether the applicant has a “reasonable prima facie case”, a reasonable claim to be heard, or a reasonable probability of success. If an applicant is unable to establish that he or she has a reasonable claim to be heard, it is difficult to see how the Court could be satisfied as to hardship to the applicant if leave is not granted.
As part of the assessment, the quantum the applicant may achieve is to be considered, as well as the likely costs that may be incurred pursuing that application. The Court has generally been reluctant to find that hardship follows if an applicant wishes to pursue a trifling claim. That does not mean the claim itself must be substantial.
The Court has generally found that hardship is not demonstrated in circumstances where the legal fees to pursue an application will extinguish, or come close to extinguishing, the likely payment. These principles are well established and have been articulated in cases including Whitford, Althaus & Althaus [1979] FamCA 47, and more recently in the Full Court of the Family Court of Australia’s decision in Gadzen & Simkin [2018] FamCAFC 218.
What is Mr Cane’s claim?
In the further Amended Initiating Application filed 19 April 2022 Mr Cane seeks 50 per cent of the asset pool, although in his Outline of Case filed 10 May 2022 he seeks 60 per cent in his favour. The pool consists primarily of the business entities in the control of Ms Kemble. Mr Cane says that at the commencement of the relationship the parties essentially had nothing and that the business enterprise has been a joint effort.
Mr Cane annexes emails which support his assertion that he was not merely a Contractor but involved in other aspects of the business such as negotiating new premises. In the case of Sharp v Sharp [2011] FamCAFC 150 hardship may be found when the applicant has a prima facie claim worth pursuing or one which has a real probability of success.
Mr Cane’s case is that he and Ms Kemble established the business, being the Suburb H Business and that at some time between mid to late 2016 and early 2017 they moved this business around the corner and renamed it the Suburb H business. His evidence is that since that time the parties have opened a number of other businesses and that this has been due to his contributions including promoting and marketing the business, signing staff, designing logos and other endeavours to expand and grow the business. He says he worked 60 to 80 hours per week for the business for which he was not paid a wage.
On Mr Cane’s case he has made a substantial contribution to building the business which is likely to have substantial value, in the millions of dollars.
I must also consider the likely costs of pursuing the claim and consider whether they are likely to exceed any entitlement. Although the businesses have not been valued I am satisfied that this is unlikely to be the case.
I am accordingly satisfied that Mr Cane has a prima facie case, and that hardship will flow to him if leave is not granted to proceed with his application out of time.
Exercise of the discretion
In determining whether or not to exercise my discretion to grant leave, I must consider the length of the delay, the reasons for it, any prejudice faced by Ms Kemble as a result, the strength of Mr Cane’s case, and the level of hardship that he will experience if leave is not granted.
I have already found that Mr Cane has a reasonable case to be argued, with a real probability of success.
The de facto husband’s reason for delay is effectively that he says the de facto relationship did not end until August 2020. In circumstances where the parties continued to have a business relationship, to socialise together and to have an intimate, possibly sexual relationship and where Ms Kemble was financially supporting him up and until February 2021, it is understandable that Mr Cane may have considered he was in a de facto relationship, even if at law I am not satisfied that he was. In any event, delay is merely a factor to be taken into account, and an inadequate explanation of it is not fatal to the application (see Althaus; Tormsen and Tormsen [1993] FamCA 151).
Although the application was filed about two and a half years out of time, the delay is not so excessive that it will have any real impact on the availability of evidence. For instance, bank statements and the like will be readily available to the parties.
I accept that Ms Kemble is prejudiced by these proceedings if they are permitted to continue. She will incur legal fees. She has potentially continued to operate the business believing Mr Cane had no entitlement to it. However I must weigh that prejudice to Ms Kemble against the hardship I have already outlined that Mr Cane will suffer if leave is not granted.
In all the circumstances, I am satisfied the hardship to Mr Cane outweighs the prejudice to Ms Kemble and accordingly I propose to grant Mr Cane leave to proceed with his application for property proceedings out of time.
Given neither party was wholly successful and because of the findings I have made about each parties’ credit, I do not believe it is appropriate to deviate from the ordinary course set out in section 117 of the Act with respect to each party bearing their own costs.
Finally, as I have made findings that each party has been untruthful and tampered with evidence, I find it is also appropriate that I recuse myself from any further part in these proceedings.
For all of the foregoing reasons, I make the orders as are set out.
I certify that the preceding one hundred and twenty-one (121) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jenkins. Associate:
Dated: 17 March 2023
0
4
0