Denys & Kellett
[2022] FedCFamC2F 971
Federal Circuit and Family Court of Australia
(DIVISION 2)
Denys & Kellett [2022] FedCFamC2F 971
File number(s): MLC 4967 of 2021 Judgment of: JUDGE HARLAND Date of judgment: 25 July 2022 Catchwords: FAMILY LAW – threshold hearing – whether or not the parties were in a de facto relationship – case turns on its facts Legislation: Family Law Act 1975 (Cth) ss 4AAA, 90RD
Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth)
Cases cited: Fairburn and Radecki [2022] HCA 18
Jonah & White [2011] FamCA 221
Sinclair v Whittaker (2013) FLC 93-550
Malek, H, Phipson on Evidence (Thomson Reuters, 19th edition, 2018)
Division: Division 2 Family Law Number of paragraphs: 89 Date of hearing: 29 June, 30 June 2022 and 1 July 2022 Place: Melbourne Counsel for the Applicant: Mr Staindl Counsel for the Respondent: In person Solicitor for the Applicant: Clancy and Triado ORDERS
MLC 4967 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS DENYS
Applicant
AND: MR KELLETT
Respondent
order made by:
JUDGE HARLAND
DATE OF ORDER:
25 July 2022
tHE COURT DECLARES THAT:
1.The parties were not in a de facto relationship pursuant to s 90RD of the Family Law Act 1975.
AND THE COURT ORDERS THAT:
2.The initiating application filed on 4 May 2021 be dismissed.
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 Denys & Kellett has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE HARLAND:
The parties met via an online dating app in 2012. They met in person in late 2012. Ms Denys lived in Mr Kellett’s property from mid-2015 to mid-2020. These matters are agreed. The dispute centres on the nature of the parties’ relationship. The sole issue for determination at this threshold hearing is whether or not the parties were in a de facto relationship. I will refer to the applicant as Ms Denys and the respondent as Mr Kellett. I intend no disrespect to the parties and do this to make the reasons easier to read.
Ms Denys says they were in a de facto relationship for 7.5 years. Ms Denys did not particularise her claim for property adjustment orders. Her first affidavit addressed issues relevant to those matters as she was not aware that the nature of their relationship was in dispute. Her counsel acknowledged that her entitlement would be modest but that if she established a de facto relationship, she would be entitled to pursue an adjustment of property interests.
Mr Kellett, who represented himself, strenuously resisted the application. He seeks that her application be dismissed. He says they were never in a de facto relationship and insists they were never more than friends. He was legally represented when he prepared his response and first affidavit.
The parties’ cases
Ms Denys says that after the parties met on the online dating app, they started going out and Mr Kellett started spending regular weekends at her home.
In 2015 Ms Denys needed to find a place to stay as her daughter was moving overseas and the rental accommodation she was living in at the time was going to be demolished. She moved into Mr Kellett’s home in 2015. It is her case that they lived together in a de facto relationship until July 2020.
Mr Kellett says that despite using a dating app, he claims he was only looking for friends. He says that whilst he did stay casually at her home on weekends on occasions, they were no more than friends who occasionally had a sexual relationship. He denies spending every weekend at her place. He says he felt sorry for her when she told him she had nowhere to live and told her she could rent a room in his house. He said she was never more than a tenant and paid modest rent. He says she did not contribute to any of the household expenses and provided little assistance around the house.
It is clear that Mr Kellett felt somewhat taken advantage of. Certainly there are aspects of Ms Denys’s evidence which has a flavour of opportunism, where she is keen to refer to him as being a man of substantial financial means.
Aspects of both parties evidence lack credibility, which is not unusual in these types of disputes where the parties have to address very personal issues. Mr Kellett represented himself at trial and was extremely defensive.
He argued that they were never in any type of relationship beyond friends and referred to her as his tenant. This argument can be easily rejected as there is evidence from Mr Kellett himself which contradicts this. The question to be determined, however, is whether or not the relationship that they had was a de facto relationship. De facto relationships can take various forms and it is necessary to analyse the evidence and consider the factors that guide the Court in determining this issue as set out in section 4AA of the Family Law Act 1975 (Cth).
Both parties called witnesses in support of their positions and I will refer to that evidence in explaining the reasons. The evidence provided by the supporting witnesses for both parties was limited.
My conclusion is that though the parties were in a romantic relationship, the evidence falls short of establishing a de facto relationship.
Legal Principles
Section 90RD of the Family Law Act enables the Court to declare that a de facto relationship existed or never existed. It also enables the Court to determine the periods of the relationship and when the relationship ended, as well as where each of the parties were ordinarily resident during the de facto relationship.
Generally, a de facto relationship must have existed for at least two years before the Court may make financial orders and must have existed until at least 1 March 2009 when the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) commenced.
There are two preliminary matters namely, that the parties must not be legally married to each other and must not be related by family. Neither of those apply here.
Two people are defined to be in a de facto relationship “having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.”
In determining whether or not a de facto relationship exists, I must consider the whole of the circumstances of the relationship: see Sinclair v Whittaker (2013) FLC 93-550. The applicant has the onus of establishing that a de facto relationship existed on the balance of probabilities as he is asserting that as a jurisdictional fact. See Jonah & White [2011] FamCA 221.
The definition of a de facto relationship in s. 4AA is very broad. Section 4AA(2) includes a number of criteria which the Court may consider in determining whether or not a de facto relationship exists. It is not necessary to make a particular finding about all or any of the matters listed. The Court is entitled to attach such weight on any of the criteria as may be appropriate in the circumstances of the case: section 4AA(5).
Section 4AA of the Family Law Act sets out the definition of a de facto relationship. Section 4AA(2) to (5) state the following:
De facto relationships
Meaning of de facto relationship
Working out if persons have a relationship as a couple
(2)Those circumstances may include any or all of the following:
(a)the duration of the relationship;
(b)the nature and extent of their common residence;
(c)whether a sexual relationship exists;
(d)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e)the ownership, use and acquisition of their property;
(f)the degree of mutual commitment to a shared life;
(g)whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h)the care and support of children;
(i)the reputation and public aspects of the relationship.
(3)No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4)A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
(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.
To what extent did the parties share a common residence?
It is not in dispute that Ms Denys lived in Mr Kellett’s property at Suburb B from 2015 until July 2020. Mr Kellett also concedes that Ms Denys advanced him a holding deposit for the purchase of the Suburb B property, which he says was $1,000, not $2,000 as claimed by Ms Denys. Mr Kellett says he repaid that sum to her. Ms Denys denies this, but I prefer Mr Kellett’s evidence on this point. She was with him when he looked at the property on a Saturday afternoon. He wanted to pay a holding deposit but did not have access to his funds.
Mr Kellett claims that she had her own bedroom. He says she only slept in his bed occasionally when they had sex.
Ms Denys annexed several photographs to her affidavit which included photos of Ms Denys and in Mr Kellett in his bedroom with the animals. There are also several photographs of two rooms in the house, which were filled with various items. Mr Kellett complained about Ms Denys being a hoarder. Ms Denys said she liked to purchase various craft items which she intended to use when she retired.
Did the parties have a sexual relationship?
Mr Kellett does not dispute that they had a sexual relationship but said it was occasional and goes so far as to say at times it was unwanted, and claims she sexually assaulted him. Mr Kellett claimed that Ms Denys offered him sex in return for favours.
I reject his evidence that he was only looking for friendship via the dating app. He conceded that he did spend weekends at Ms Denys place before she moved into his Suburb B property but denies that it was most weekends. He said he would stay for one night or perhaps two, but was unable to stay longer as he was caring for his son. He conceded that she also stayed at his place occasionally once every month or two.
Mr Kellett denied that they ever dated and when cross-examined, claimed that he was dating someone else called Ms C and that they were only “friends with benefits”. When queried by counsel, he said that he had no reason to tell Ms Denys about her as she was only a renter. His evidence was inconsistent.
Mr Kellett was questioned about what he said in his affidavit where he claims he had a conversation with Ms Denys where she offered sex for favours such as going on outings. When asked to explain why prior to that point he would stay at her place, he replied that “men are weak and have needs.” I reject his contention that she offered him sex for favours. This attempt by him to characterise their relationship as a businesslike one is not credible.
When pressed about his evidence, which varied with respect to Ms Denys exchanging sex for favours and then him claiming that there was non-consensual sex, his responses were inconsistent and unconvincing. This reflected his determination not to make any concessions that could suggest they were in a romantic or more committed relationship. It was apparent that he was more concerned with this than answering the questions he was asked under oath.
Mr Kellett claimed he had his friend Mr D, who was a locksmith, install a deadlock on his bedroom door because of Ms Denys’s unwanted sexual advances. He was unclear in his evidence about the dates. I do not accept that he had a deadlock installed two years before she moved out in order to stop her coming into his bedroom to assault him.
Mr Kellett called Mr D to give evidence. He did install a lock on his bedroom door. But when cross-examined, he said it was an internal lock only as it is not possible to fit a deadlock onto an internal house door.
What degree of financial dependence or interdependence did THE PARTIES have?
Ms Denys receives the disability support pension. Mr Kellett alleges that Ms Denys claimed the single rate throughout the period when she lived with him. There is no supporting evidence with respect to this one way or the other. There is evidence that she did not claim rental assistance from the time she moved into Mr Kellett’s property.
Ms Denys claimed that Mr Kellett had access to her online My Gov account and alleged that he printed out a claim form for her to resume receiving rent assistance in early 2020 by forging her signature. Mr Kellett produced the original document marked as Exhibit 1. There is no evidence that this document was tampered with in any way. The former was not actually lodged with Centrelink. I reject any suggestion that respondent was engaged in some sort of nefarious conduct with respect to his document. Whilst there is nothing in evidence with respect to Ms Denys’s disability support claim, there appeared to be some confusion on her part as to the extent that she was suggesting that the rate did not change regardless of whether a person is in a relationship or not. What is clear is that the period that she was living with Mr Kellett, she did not claim rental assistance. This is in support of her contention that this was because they were in a de facto relationship. This form refers to needing to be lodged by March 2020. The form was not lodged. This is consistent with their relationship breaking down.
During cross-examination, Mr Kellett asked Ms Denys if she has a shopping problem. He annexed photographs to his affidavit of two of the rooms in his house, piled high with various belongings. She responded that she likes to buy things for her craft to keep busy as she cannot listen to music and that she is deaf living in a hearing world and feels isolated. She also bought wool material for clothes and would collect vintage rare pieces with plans to put them together. She agreed that she had two rooms of his house filled with her belongings. She further agreed that Mr Kellett complained about her buying materials and filling up his house, but she continued to do so. This included filling the cupboards in his laundry with her materials.
Ms Denys agreed with Mr Kellett’s proposition that five years of his bank statements show that she spent approximately $180,000 on various items and she also agreed that she did some work for a Mr E for cash. Recipients of the disability support pension are able to earn limited amounts of money before it affects their pension. She claimed that she gave additional money for household expenses. She does not provide any documentary evidence to support this contention.
To what extent did the parties have a mutual commitment to a shared life?
Mr Kellett’s mother died before the party’s relationship. His father died during the relationship. Mr Kellett contested both parents’ will. The money he received from the inheritances enabled him to purchase the Suburb B property and to purchase two investment properties off the plan in 2019.
Ms Denys claimed that she supported Mr Kellett by taking him to various appointments with lawyers. When cross-examined she said that she would be in the car and would drop him off, but did not attend the appointments because she is deaf and the conversation was none of her business. She did not attend the actual appointments, but would pick him up afterwards. I accept that on occasion she dropped him off or picked him up from appointments. Whilst she would not have been able to participate effectively in those appointments without an interpreter, it is also clear from her evidence that she did not see that the contents of those meetings were any of her concern.
She claims in her affidavit to have seen a figure of $5 million in his bank account. She claims he was showing off. She was unable to provide any further details and it struck me as being somewhat fanciful. Mr Kellett did receive $720,000 in settlement of the estate dispute in addition to the other inheritance he received.
Mr Kellett likes to buy and sell vehicles after repairing them. I accept Ms Denys’s evidence that on occasion Mr Kellett called her and asked her to drive from where he was to collect him.
I also accept that they went on various outings together. Mr Kellett conceded that this was the case, but maintained that was as friends and says she often asked to join him on outings otherwise she would spend many hours at home on her phone.
Part of Mr Kellett’s arguments that they were not in a de facto relationship included the fact that she would go on deaf camps on her own and mostly visited deaf friends alone. I do not accept that this is an indication of Ms Denys and Mr Kellett not being in a de facto relationship as it is not in dispute that Mr Kellett did not know Auslan and had a limited ability to communicate with her using sign language. It contributed to their communication difficulties throughout their relationship.
Mr Kellett appeared somewhat intolerant and at times dismissive of Ms Denys’s disability. It is perfectly understandable why Ms Denys would take up opportunities such as going on deaf camps where she and other deaf people would be able to freely communicate with one another and not have to deal with any feelings of exclusion from the hearing world. The impression that I have from Mr Kellett, and this was confirmed by witnesses, is that Mr Kellett did not make a great deal of effort to communicate with Ms Denys’s deaf friends.
Mr Kellett was keen to create a picture of them not interacting much with one another’s friends and doing their own thing, with people coming over to the house to visit them individually. What Mr Kellett fails to acknowledge is the practical limitations that were involved in such interactions. I do not see this as strongly supporting Mr Kellett’s position that they were not in a de facto relationship, as it is simply the reality for them that they could not easily interact with each other’s friends due to the language difficulties.
The challenges of being profoundly deaf was evident at times during the trial. Ms Denys was ably assisted by two Auslan interpreters throughout the trial.
Mr Kellett was hospitalised on a few occasions during the course of the relationship. He agreed Ms Denys visited him when he was in hospital for almost 2 weeks after having an operation on his hand in 2019. He denied that she visited every day and said she visited every two or three days to bring things that she knew he needed. He had difficulty explaining their text exchanges where during this period he apologised to her for the fact he was stuck in hospital on her birthday and where he asked her to come help him shower. He denied that Ms Denys provided any support for him as he recovered, other than what a flatmate would do. Ms Denys relied on a social media post where she advised family and friends how Mr Kellett was recovering. He claimed not to have seen the social media posts she made telling his family and friends about his hospital stay annexed to her affidavit, but maintained his denial that they were anything more than friends.
This is indicative of there being more to their relationship than flatmates. Ms Denys also relied on several text exchanges between the parties which she annexed to her affidavit. These exchanges between them are also indicative of the parties being in a romantic relationship and are consistent with the parties being more than friends.
It was apparent that when Mr Kellett was cross-examined he was determined not to ever say or agree with any contention that they were ever in any kind of relationship and that he resorted to lying. He was also careful during cross-examination to avoid describing them being in a relationship and rather than answering the question, would reply with a question such as asking how a relationship defined.
He agreed that they did go on outings from time to time including various day trips, and that they took his grandson F on one of these day trips.
He insisted that Ms Denys had her own room and that she would come into his room at night on occasion until he put a stop to it. He was cross-examined about photos that were annexed to his affidavit, showing the two rooms filled with a pile of belongings reaching close to the ceiling and said that one room was worse than the other and that there was enough room for her to sleep in her bed in one of them.
Mr Kellett had to concede when cross-examined about photographs Ms Denys annexed to her affidavits that depicted of them in his bed. In one of the photos it included him just in his underpants. There were also photos of the animals in bed. He was cross-examined about the photograph showing shelving on the bed head to each side of the bed as well as a side table. Whilst it was difficult to make out some of the detail in those photos, one side as well as the side table contained various knickknacks. The other contained remotes. Mr Kellett’s insistence that the knickknacks also belonged to him and were not Ms Denys’s was unconvincing. The setup in the photographs was consistent with two people sleeping in bed having their belongings on their respective side. If it was the case that both sides contained his belongings it is more likely that they would been mixed across the other and not separated the way they were. Mr Kellett’s answers in cross-examination on this subject were not credible and reflected a tendency to avoid saying anything that could give any support to them being in a relationship.
Mr Kellett did concede that Ms Denys bought and raised a kitten for him, saying that she knew that he liked cats and that it was not very expensive.
He was also cross-examined about several photos taken at family events. He denied Ms Denys attended those events and denied that she took photos. He repeatedly claimed that his family did not like her. I reject his contentions that she never attended any of his family events. His evidence was unconvincing and he did not have an explanation as to why she had those photographs. He denied that they spent Mother’s Day together with his daughter and her partner in 2016, only reluctantly conceding it when faced with photograph evidence, but then suggested that Ms Denys took the photos from his social media. I prefer Ms Denys’s evidence on this point.
He reluctantly conceded that she arranged birthday celebrations for him one year which members of his family also attended.
I am satisfied that the parties did go to family events together for each other’s family from time to time. I reject his evidence that he only went to a wedding and to Ms Denys’s 50th birthday celebration at a restaurant as friends.
Both he and his daughter Ms G when cross-examined were very keen to comment on their family not liking Ms Denys, but failed to acknowledge the very real difficulties and limitations in her being able to communicate effectively with them. I very much have the impression, supported by her supporting witnesses as well, that Mr Kellett made little effort to learn how to communicate with her and her friends. He showed a lack of empathy and somewhat intolerant attitude marked by frustration towards her.
Mr Kellett was so keen to avoid any suggestion that they had any sort of relationship other than landlord and tenant and at times “friends with benefits” that he would not make even obvious concessions. One example is his insistence that the five-day trip the parties took together to pick up a motor vehicle was just a business trip. He says he needed her to come with him as he needed her to drive his car back whilst he drove the vehicle. If it had been merely a business trip they would not have spent five days in City H going sightseeing and exploring before returning.
Mr Kellett was cross examined about text exchanges between him and Ms Denys which included references to periods where he referred to not wanting to be in a relationship with her anymore. He continued to deny that he ever considered that they were in a relationship despite his reference in the texts, and continued to insist that the text exchanges, including the period when he was in hospital, that they were just friends. He said that when he asked for help with a shower, he was just asking her to bring his belongings. His evidence stretches credibility.
Mr Kellett was also unable to explain the text sent on 2 July 2020, about not caring how long she spent on the phone anymore as they were no longer in a relationship. He insisted that a relationship could have two meanings and could refer to a friendship. This was an example of him being so desperate not to make any concession that his evidence was not truthful on these points. What he clearly failed to appreciate is that people can be in a romantic relationship as partners or boyfriend and girlfriend, but that relationship may fall short of being a de facto relationship as defined under the Family Law Act.
Mr Kellett was unable to give any credible explanation as to why he texted Ms Denys saying that he had not had sex with any other woman since being with her and said he lied about that and also continued to insist that when he referred to a relationship he was in fact referring to a friendship. The text exchanges include an exchange where Ms Denys messaged a friend of Mr Kellett telling her that she should know that she and Mr Kellett had been in a relationship for seven years. There are also exchanges between the parties where Mr Kellett expressed distress at Ms Denys messaging his friend and asked her not to involve his friend. His text exchanges also referred to him using the word relationship and partner and references to love. In one of his responses he refers to the relationship not working, and it being dead to him. He conceded that this was what the message said. The only reasonable way of interpreting these messages is that the parties were in a relationship that was breaking down.
Ownership, acquisition and use of property
Throughout the period the parties lived together, they lived in the property owned by Mr Kellett. Apart from lending Mr Kellett the $1,000 holding deposit, there is no evidence that Ms Denys made any other financial contributions to the acquisition or maintenance of this property.
There is no evidence that suggests that Ms Denys had any role in the purchase of the investment units Mr Kellett bought off the plan in 2019. I accept that Ms Denys made regular payments to Mr Kellett during the period they lived together. It matters little that she initially labelled them as rent and later living expenses. The payments were modest.
Ms Denys did not acquire any real property during the course of the relationship.
Care and support of children
Both parties have adult children from previous relationships. Mr Kellett’s daughter and her young son F lived with the parties for about eight months in 2015/2016 as she was going through a relationship breakdown and separation. Ms Denys says that she and Mr Kellett would look after F from time to time and would take him on outings. Mr Kellett and his daughter both claim that F did not like Ms Denys and sought to downplay any interactions she had with him and other family. Given her disability, it would not be surprising if a young child found it difficult to relate and communicate with Ms Denys, assuming that in fact was the case.
Reputation and public aspects of the relationship
I am satisfied that at various times both parties held themselves out as being in a romantic relationship. Both parties called several witnesses to support their case.
Ms Denys’s witnesses
Ms J
Ms Denys called her sister Ms J as a witness. It was clear from her evidence that they do not enjoy a close relationship. Ms J never visited her sister’s home during the period she lived at Mr Kellett’s property. She said she is not fluent in Auslan and that they do not have great communication.
I accept the evidence that the applicant asked Ms J if she could bring her partner, Mr Kellett to her niece’s wedding and her sister agreed. Mr Kellett attended the wedding with Ms Denys.
It also is of some significance that in cross-examination she said that she saw several photographs of the Suburb B house on her sister’s Facebook page but did not see photographs of them together. She said she saw the inside of the house, the cats and his motorbikes but not photos of them together and that she never saw them in a romantic embrace. It is clear that she did not have a close relationship with her sister and her evidence was very limited.
Ms K
Ms Denys also relied on the evidence of Ms K who has been a friend of hers for over 32 years. She is profoundly deaf and was assisted by Auslan interpreters. Prior to Ms Denys living with Mr Kellett, she and Ms Denys shared a rental accommodation together. Ms K says after Ms Denys met Mr Kellett, he spent most weekends at their place. She said she did not see Ms Denys as often after she moved to Suburb B him as it was not close to where she was. She says Mr Kellett made little effort to communicate with her.
She visited the Suburb B home on a couple of occasions, and referred to being there in 2017 or 2018 for the Melbourne Cup, and says that she did not see anything that suggested they were not in a relationship. With respect to her affidavit, I note that she and the other witnesses called to support Ms Denys’s case in their affidavits referred to their understanding, based on their discussions and observations of the parties that they were in a committed and romantic relationship. This is a conclusive statement, not evidence.
Ms K was candid when cross-examined. When Mr Kellett asked if she ever talked to him, she said no, and that she did not like him and that he never made an effort to talk to her because she is deaf. She agreed that she and Ms Denys argued. She said it was many years ago. This does not detract from her evidence. She said that she saw the parties perhaps 10 times or more from 2014 to 2020. It was clear that most of these occasions occurred when he was visiting the rental property that she and Ms Denys shared prior to Ms Denys moving into Mr Kellett’s property. She visited the Suburb B home a few times. She said sometimes he was not there. When Mr Kellett asked her how she could make a comment in her affidavit that she believed they were in a committed relationship, she replied saying that she knew they were living and sleeping together for seven years. It was clear from her evidence that she was to a large extent, relying on what Ms Denys told her rather than what she observed directly. Given this, her evidence does not assist to establish the existence of a de facto relationship.
Ms L
Ms Denys also relied on another long-term friend, Ms L. She recalls Ms Denys introducing Mr Kellett as her boyfriend and partner when they attended her home wanting to breed their cat with one of theirs. She said that Mr Kellett did not understand Auslan but she was able to read lips. She said that Mr Kellett dropped off Ms Denys to her house on perhaps five or six occasions from 2013 to 2020. She did not see Ms Denys as often after she moved into the Suburb B property as it was a fair distance away from her home. She recalled in occasion when she attended the Suburb B home for an aromatherapy party Ms Denys was hosting.
At paragraph 14 of her affidavit she says she had no reason to doubt that they were in a relationship from 2013 to 2020. Again this is belief and not evidence. When cross-examined she said she saw Mr Kellett at the home a few times. He was there at the aromatherapy party, but not participating, and she also recalled what she thought had been a football party but then conceded it could have been a Melbourne Cup party. She said she did not see them exchanging affection. She said there were a lot of deaf ladies together in the house. She agreed that Ms Denys showed her and the other ladies around the house. She recalled seeing Ms Denys, Mr Kellett and Ms K at the house. Ms Denys and Ms K shared a house before Ms Denys moved into the Suburb B property.
When asked how she reached the conclusion that they were in a relationship, she said it was because Ms Denys was always referring to him as her boyfriend and that they shared a room. I find that her evidence supports Ms Denys’s contention that the parties were in a romantic relationship, but her evidence does not go so far as to support the existence of a de facto relationship.
Ms M
Another long-term friend of Ms Denys’s, Ms M swore an affidavit and was cross examined, she is also deaf. She says she saw Ms Denys approximately monthly. On one occasion, she stayed overnight at the house staying in the room that had been set up for Mr Kellett’s grandson. She said Mr Kellett was always there when she visited.
When cross-examined she says she did notice that they were affectionate towards each other. She recalled seeing the master bedroom but could not recall whether or not she saw Ms Denys’s clothing and belongings in that room. She confirmed that Mr Kellett referred to Ms Denys as his bubble. She believed this was his affectionate term for her, Mr Kellett suggested that what in fact he said was that Ms Denys lives in a bubble. Given the limitations on their ability to communicate what both of them say may well be true.
She denied that Mr Kellett would mostly keep to himself when she visited and said that he would talk to her. She also said that she saw him get angry with Ms Denys’s for minor things. When Mr Kellett asked her how she could conclude that they were in a romantic relationship, she said that she could easily see when they both met how they felt about each other and that she remembers having lovely dinners with him and that Ms Denys was always excited to have him in her life.
When asked if she saw Ms Denys do domestic chores around the house when she visited, she said that she saw Ms Denys sitting down on her phone a lot. She said sometimes she would help Mr Kellett with the dishes and that he would often tell her that he would do it as Ms Denys was not a good cleaner. She also said that he tended to take over the cooking when she visited. This is consistent with both parties’ evidence that Mr Kellett was a good cook and did most of the cooking. Her evidence supports Ms Denys’s evidence that they were in a romantic relationship.
Ms N
Ms N also gave evidence in support of Ms Denys’s case. She met Ms Denys in 2012. Ms N is a hearing person and is fluent in Auslan. She recalled seeing Mr Kellett at the aromatherapy party Ms Denys hosted at the Suburb B house. When questioned by Mr Kellett, she said she did not think that he mentioned to her that he was Ms Denys’s partner as she thought communication on that occasion was mostly in sign language. She agreed that he was not involved in the party. She recalls having a discussion with him about him wanting to live in a similar style of property that he had lived in when he married, and that he could only afford a property like that out at Suburb B. She also recalled him mentioning that the place was big enough for him and Ms Denys. She recalled Ms Denys showing them around the house and showing them their bedroom and recalled Ms Denys joking that they needed a bigger bed because of all the animals. She recalled another occasion where she attended the home for lunch. She agreed that Mr Kellett was watching football. She says he cooked on the barbecue and brought the food in at the table and everyone had brought a plate. She said she never saw them in a romantic embrace. When Mr Kellett asked her to explain the basis for assuming they were in a relationship rather than just being friends, she said that he was introduced as her partner and also recalled an occasion when Ms Denys gave her a letter Mr Kellett wrote her, asking for her to get a cochlear implant so that it would be easier for them to communicate. She said Ms Denys asked her to help her respond to his letter.
She confirmed that Ms Denys did get a cochlear implant. She could not recall exactly when that took place but that it was about four or five years ago and her friends were all surprised. I accept Ms N’s evidence. Her evidence supports the contention that the parties were in a romantic relationship that was more than simply landlord and tenant and more than friends.
Mr Kellett’s witnesses
Mr D
Mr D gave evidence in support of Mr Kellett’s case, as noted at paragraphs 27 and 28. He says that Ms Denys had been to his house on a couple of occasions and he had seen her at Mr Kellett’s house maybe 8 to 10 occasions over the years. Mr Kellett and Mr D have been close friends for over 50 years. He says that Mr Kellett asked him to put a lock on his bedroom door about two years before Ms Denys moved out of the Suburb B property. When counsel suggested that the dates could have been in 2020, he disagreed. As noted earlier, I accept that he put a lock on the master bedroom door at Mr Kellett’s request, but I do not accept that it occurred some two years before. It is more likely that this occurred sometime in the months before she moved out as the relationship breaking down.
Ms O
Ms O was a friend of Ms Denys’s and is the sister of one of Mr Kellett’s friends. Mr Kellett called her to give evidence in support of his case. In her affidavit she claims that Ms Denys told her that a friend of hers, Mr Kellett, offered her room to rent. She said she visited the Suburb B house a number of times over the years and that at first Ms Denys had one room that then spilled into a second room that was filled with her belongings as Ms Denys was a shopper and hoarder. She claimed that she did not see Ms Denys do any house work and did not help with the cooking. She claims that Ms Denys told her that she was only paying rent and not living expenses and that she did not have the impression that they were in a relationship. I am unable to place much weight on Ms O’s evidence. She was candid that she discussed her evidence with Mr Kellett and that they wrote her affidavit together and she said her English is not so good. She is profoundly deaf. It was also clear that she was very keen to give evidence to support Mr Kellett’s case and in her affidavit referred to Ms Denys being in a previous relationship and saying that she wanted to get money from him. When cross-examined she then said that perhaps that was a reference to her first husband rather than another relationship and then conceded that these were rumours that she heard.
She did not know whether or not the parties were in a sexual relationship. She said she would visit the house about once a month as she was working and would sometimes stay overnight. She also referred to the sewing room being so full of belongings that she could not see the room and that Ms Denys had things everywhere, including in cupboards and several of the bedrooms.
Ms G
Mr Kellett also called his daughter Ms G to give evidence supporting his case. It was obvious that she was very keen to support her father’s case and was very critical of Ms Denys. She echoed many of the same criticism Mr Kellett levelled at Ms Denys including her being lazy and feeling that the world owes her something because she is deaf.
I am not satisfied that she spent regular time at the Suburb B house after she and F moved out. It was clear when cross-examined that she feels so strongly that Ms Denys took advantage of her father and that her evidence needs to be treated somewhat cautiously. She was cross-examined abut several of the photos of the parties in the bedroom that she did not even recognise Ms Denys in one of them and referred to her as a lady with grey hair and glasses. It was also clear that she was keen to ensure that she gave evidence she thought would help her father rather than concentrating on answering the questions she was asked.
When she was cross-examined about the photographs of the bedroom it showed several ornaments on one side of the bed. Initially she said they were Ms Denys’s and complained about all the things she bought but then changes her evidence when it was apparent the bedroom was in her father’s room and claimed that he liked to collect ornaments.
When she was cross-examined she had to be directed to not make speeches and focus on what she was being asked. She gave her evidence via teams and at times was walking about the room as she gave evidence. She was clearly invested in supporting her father’s case even to the extent of initially saying she saw Ms Denys’s Centrelink forms claiming the single rate of the disability support pension although when pressed she said her father told her that. I place little weight on her evidence.
witness credibility
When cross-examined, Ms Denys had a tendency not to answer the question that she was asked and would instead provide commentary. It was difficult to get her to focus on answering what she was being asked.
Mr Kellett denied providing any assistance to his supporting witnesses in preparing their affidavits even to the extent of typing their statements. Mr Kellett’s affidavits and the affidavits of his supporting witnesses contain punctuation errors where the exclamation mark is used excessively throughout.
I am satisfied that at the very least, he typed their affidavits and used his punctuation style. If he had legal representation, his lawyers would have prepared the affidavits based on the witness’s instructions and any statements provided. I am not satisfied and it was not suggested that the statements are not based on the witnesses’ own evidence. The affidavits are not identical and vary in detail and length. For example, the affidavit of Mr P is only a few paragraphs long and refers to only meeting Ms Denys a few times, Mr Kellett complaining of her hoarding and to Mr P thinking of her just as a tenant. He was not required for cross-examination, noting the brevity and limited nature of his affidavit. His affidavit does not assist me determining the issue in dispute.
conclusion
In Fairburn and Radecki [2022] HCA 18 the High Court considered s4AA when considering whether or not a de facto relationship had broken down. They said the following at paragraph 39:
A person’s intention is a fact and as such it “is as much the subject of evidence as the state of his digestion” (Hodge M Malek, Phipson on Evidence (Thomson Reuters, 19th edition, 2018)). As with any other fact, that intention may be inferred from other facts that have been established and it may require an evaluation of all of the evidence so as to determine the actual intention of the person. This is quite different to imputing or imposing an intention on a person which they did not have, which is, in effect, to create a fact that in reality does not exist. Such a course is not permissible and we consider that his Honour erred in doing so.
These comments about the interpretation of s4AA applies equally to the determination of whether or not a de facto relationship existed. It is necessary to consider the unique circumstances of this relationship when considering the provisions of s4AA. There are some factors which support the existence of de facto relationship and some which do not. It is necessary to consider all of the circumstances holistically rather than using s4AA as some sort of checklist. Whilst both parties called several witnesses in support of their respective cases, the evidence of the supporting witnesses was limited and clearly much of their evidence reflected what Ms Denys or Mr Kellett had told them about the nature of their relationship. Relationships vary enormously. People generally don’t meet someone with the immediate intention of being in a de facto relationship. Typically, relationships evolve over time. People can also be in romantic relationships which fall short of a de facto relationship.
In this case I am satisfied that Ms Denys and Mr Kellett were in a romantic relationship. They were not landlord and tenant. They were not “friends with benefits”. However when considering the whole of the evidence I am not satisfied that Ms Denys has discharged the onus of establishing the fact that they were in a de facto relationship. Whilst they lived together for 5 years, there is a lack of evidence of there being a mutual degree of commitment to a shared life. For these reasons I dismiss Ms Denys’s application.
I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Harland. Associate:
Dated: 25 July 2022
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