Denys & Kellett (No 2)
[2023] FedCFamC2F 1206
•18 September 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Denys & Kellett (No 2) [2023] FedCFamC2F 1206
File number(s): MLC 4967 of 2021 Judgment of: JUDGE GLASS Date of judgment: 18 September 2023 Catchwords: FAMILY LAW – De Facto Relationship – whether parties were living together as a couple on a genuine domestic basis during a five year period of cohabitation Legislation: Family Law Act 1975 (Cth) s 4AA Cases cited: Bain & Bain (deceased) (2017) FLC 93-772
Colburn & Cleese (2022) FLC 94-105
Herford & Berke (No 2) (2019) FLC 93-919
Jonah & White (2012) FLC 93-522
Lennon & Sanil (2020) FLC 93-962
Sinclair & Whittaker (2013) FLC 93-551
Division: Division 2 Family Law Number of paragraphs: 80 Date of last submission/s: 30 August 2023 Date of hearing: 28 - 30 August 2023 Place: Melbourne Counsel for the Applicant: Mr Dtaindl Solicitor for the Applicant: Clancy & Triado Solicitor for the Respondent: Self-Represented Litigant 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 GLASS
DATE OF ORDER:
18 SEPTEMBER 2023
THE COURT DECLARES THAT:
1.A de facto relationship existed between the Applicant and Respondent from mid-2015 until July 2020.
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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE GLASS:
Ms Denys applies to the Court for relief pursuant to Part VIIIAB of the Family Law Act 1975 (Cth). The application is opposed by Mr Kellett.
The preliminary issue to be resolved is whether the parties were in a de facto relationship. Ms Denys asserts the parties were in such a relationship during their cohabitation from mid-2015 until July 2020. Mr Kellett denies the parties were in such a relationship.
The parties were in a de facto relationship, if, “having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis”.[1] This is the touchstone or foundational fact that establishes jurisdiction.[2] It is a “composite picture” produced by the synthesis of the evidence and statutory considerations.[3]
[1] Family Law Act 1975 (Cth) ss 4AA(1)(c).
[2] Herford & Berke (No 2) (2019) FLC 93-919 at [10], [16]; Jonah & White (2012) FLC 93-522 at 86,682.
[3] Colburn & Cleese (2022) FLC 94-105 at [79].
The relevant circumstances may include any or all the matters referred to in subsection 4AA(2) of the Act. No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the parties were in a de facto relationship.[4] I am to have regard to all of the circumstances of the relationship, whether or not they are specified by subsection 4AA(2).[5] I am entitled to have regard to such matters, and attach such weight to any matter, as may seem appropriate in the circumstances.[6]
[4] Family Law Act 1975 (Cth) ss 4AA(3).
[5] Sinclair & Whittaker (2013) FLC 93-551 (“Sinclair & Whittaker”) at [51].
[6] Family Law Act 1975 (Cth) ss 4AA(4).
EVIDENTIARY ISSUES
Mr Kellett represented himself at trial. It was explained to him that it was for him to challenge the evidence of Ms Denys and her witnesses to the extent he disputed their evidence. As was also explained to him, where Ms Denys’ evidence is uncontradicted and not otherwise inherently improbable or inherently incredible, I am to accept it, unless he has elicited in cross-examination, or led in evidence some material to overcome it.[7]
[7] Bain & Bain (deceased) (2017) FLC 93-772 at [112] and the cases there cited.
Mr Kellett nevertheless failed to challenge significant portions of Ms Denys’ evidence and adduced no contradictory evidence. He did suggest to her that her memory was poor. He identified an inconsistency in her earlier affidavit material. In her first affidavit, Ms Denys deposed to Mr Kellett acquiring a property in Suburb B in late 2013 and her moving in later that year. In her second affidavit, she deposed to moving into the property in 2015. Ms Denys gave evidence that the inconsistency was explicable by reference to her bad memory.
Mr Kellett put to Ms Denys that her first affidavit said that she had paid for airfares for the parties’ trip to City H to purchase a motor vehicle for Mr Kellett. The relevant evidence was that “Mr Kellett reimbursed me for all expenses for the [motor vehicle] but he did not reimburse me my personal expenses such as airfares and accommodation costs”.[8] Ms Denys denied that she had incurred airfares for the trip, giving evidence that the parties travelled by boat to collect the motor vehicle. She accepted that she may have overlooked that small detail in her affidavit.
[8] Affidavit of Ms Denys filed 4 May 2021, paragraph 18(f)(v).
Mr Kellett also challenged Ms Denys’ evidence that she has not “exchanged communications with [Mr Kellett] or any other party which are relevant to the determination of the threshold question since the conclusion of the original proceedings”.[9] Ms Denys accepted that, in February 2023, she had contacted one of Mr Kellett’s witnesses, Ms O, and asked her to cancel her affidavit. Ms Denys also accepted that, in August 2023, she contacted the wife of another of Mr Kellett’s witnesses, Mr P, to enquire whether she knew her husband had made an affidavit in the proceedings, explaining that Ms Denys had only seen Mr P about three times, and inviting her to come to Court during the trial. I do not join in Mr Kellett’s significant criticism of Ms Denys for so doing.
[9] Affidavit of Ms Denys filed 15 August 2023, paragraph 3.
Mr Kellett suggested that Ms Denys had defrauded Centrelink. The suggestion was not established by evidence. Ms Denys gave unchallenged evidence that she could earn up to $15,000 per annum without impacting her pension payment, and that any amount she received from providing care to an elderly deaf man was much less than that amount.
Mr Kellett asked Ms Denys whether he had ever slept at her house in Suburb Q prior to the parties’ cohabitation. Ms Denys answered that he had, referring to her time living with Ms K. It was clear that Ms Denys was mistakenly referring to Mr Kellett staying at the home she shared with Ms K in Suburb R. I am not satisfied that mistake generally impeaches Ms Denys’ evidence.
Mr Kellett submits that Ms Denys only answered around five per cent of the questions he asked of her, or never answered questions put to her. I reject the submission. Certainly, Ms Denys often gave detailed and lengthy answers, but I am satisfied that she generally answered the questions that were asked of her. That she gave more detail than Mr Kellett sought does not suggest that her evidence should be rejected.
Whilst some of Ms Denys’ evidence was inconsistent, it does not suggest that the totality of her evidence ought be rejected. Her evidence with respect to substantive aspects of her relationship with Mr Kellett was unchallenged by him. Indeed, many of the questions asked by Mr Kellett of Ms Denys suggested that their relationship was more intimate than the tenant / landlord or “friends with benefits” relationship he suggested.
Mr Kellett submitted that I should effectively reject Ms Denys’ evidence to the extent he had not agreed to it. I reject the submission. He gave oral evidence that he understood if he did not challenge Ms Denys’ evidence, the Court is entitled to accept it.
Ms Denys’ detailed evidence about the nature of the parties’ relationship was essentially uncontradicted by Mr Kellett’s evidence in chief. The totality of his affidavit evidence about the parties’ relationship is as follows:
[Ms Denys] and I met online and met in person in late 2012, I was surprised that she [had a disability], [communicating with her was very difficult], I told her upfront that I was only wanting a freindship!
[Ms Denys] and myself had a friendship for about one year but after time I found if very difficult to communicate with her the frienship peterred out after around twelve months.
I never heard from [Ms Denys] again until the middle of 2015, she contacted me that the house that she was living in was to be demolished and she had nowhere to live so I relucuantly said to her that she could rent a room in my house, she told me that her friends and family didn't want her so I buckled and let her rent a room in my house.
While she was living in my house I was on Single Newstart Allowance until I turned sixty five, in 2020 then I went onto the Single Aged Pension and [Ms Denys] was on Single Disability Pension as far as I know.[10] (as per original)
[10] Affidavit of Mr Kellett, filed 14 August 2023, paragraphs 4-7.
Despite the general absence of contradictory evidence, Ms Denys elected to cross-examine Mr Kellett in relation to topics that were not part of his evidence, nor the subject of challenge to Ms Denys’ evidence. The result of that forensic decision is that by the conclusion of the trial, there were aspects of Ms Denys’ evidence that were contradicted by Mr Kellett, but not challenged by him. As will be seen, Mr Kellett’s oral evidence contained significant irreconcilable inconsistencies. I find no general basis to prefer his evidence to the evidence of Ms Denys.
The trial was by way of re-hearing following an appeal. It was agreed that the parties would rely on the affidavit evidence prepared by their respective witnesses for the earlier hearing. Several of those witnesses, who had given oral evidence in the previous trial, were unavailable to give evidence. To avoid further delays in the proceedings, the parties agreed that I would have regard to the oral evidence given by the unavailable witnesses during the previous trial.
CIRCUMSTANCES OF THE RELATIONSHIP
The duration of the relationship
Ms Denys and Mr Kellett met via an online dating platform before meeting in person in late 2012. Ms Denys deposes that later that month they kissed and “began dating exclusively”.[11] Mr Kellett gave oral evidence that he commenced staying at Ms Denys’ home in early 2013, when the parties commenced a sexual relationship. Consistent with Ms Denys’ evidence about the exclusivity of their relationship, Mr Kellett sent Ms Denys text messages in July 2020 including “…the only I person I have sex with since I known you is you, cross my heart!!!!”.[12] I accept both parties’ evidence absent any challenge to it.
[11] Affidavit of Ms Denys filed 15 August 2023, paragraph 5.
[12] Affidavit of Ms Denys filed 15 August 2023, paragraph 63(a)(ii), annexure 24, page 32.
The frequency of Mr Kellett’s attendance at Ms Denys’ home was disputed. Ms Denys’ housemate, Ms K, gave evidence that Mr Kellett stayed at their home “every weekend; normally from Thursday until Monday”.[13] I prefer her unchallenged evidence to Mr Kellett’s oral evidence that he only stayed there occasionally.
[13] Affidavit of Ms K filed 2 February 2022, paragraph 6.
Mr Kellett deposes that the parties had a “friendship for about one year” and also that the “friendship petered out after around twelve months”, and that he “never heard from [Ms Denys] again until the middle of 2015”.[14] Given they met in 2012, that affidavit evidence is consistent with the parties’ relationship ceasing at the end of 2013. Mr Kellett directly contradicted his own evidence under cross-examination. He gave oral evidence that the relationship ceased in 2014. He also gave oral evidence that Ms Denys would send him text messages after he claimed he had never heard from Ms Denys. He also inconsistently gave oral evidence that during 2014 or 2015, prior to cohabitation, Ms Denys was staying at his house on weekends. Despite Ms Denys having asserted during the first trial that the de facto relationship had commenced two and a half years prior to the parties cohabitation, Mr Kellett gave no evidence in those proceedings that there was a break in the parties’ relationship between 2014 and mid-2015. I do not accept Mr Kellett’s evidence that there was a petering out of the parties’ relationship prior to their cohabitation.
[14] Affidavit of Mr Kellett filed 14 August 2023, paragraphs 5-6.
Ms Denys deposes to the parties commencing cohabitation in “early-mid 2015”.[15] She nevertheless submits that their cohabitation commenced in mid-2015. That concession is consistent with Mr Kellett’s evidence. I accordingly find the parties commenced living together at the Suburb B property in mid-2015. It is uncontroversial that cohabitation ceased in July 2020.
[15] Affidavit of Ms Denys filed 15 August 2023, paragraph 15.
The nature and extent of the parties’ common residence
Ms Denys gave the following oral evidence about the circumstances surrounding the commencement of the parties’ cohabitation, addressed to Mr Kellett, who was questioning her:
You were, um, trying to get me to move in. You were saying to me, please move in. And I actually asked why, and you said because I love you, I love you, I want you to live with me in the house, in your house. You know, the fact that I was helping you. You were begging me. You said, you know, I’m struggling with money, please come and live with me.
Given the inconsistencies in Mr Kellett’s evidence, I prefer Ms Denys’ evidence about those circumstances rather than Mr Kellett’s evidence that he only agreed to Ms Denys moving into his home under pressure, that he did not really want her to do so, and that she begged him to move in.
Ms Denys deposed that in the Suburb B property the parties “shared the master bedroom right up until around 2 weeks before [Mr Kellett] kicked me out in [mid]-2020”.[16] Mr Kellett did not challenge Ms Denys’ evidence. Nevertheless, he denied in cross examination that the parties shared a bedroom, giving oral evidence that Ms Denys had her own bedroom in the back of the house and only slept in his room fifteen per cent of the time. When it was suggested to him that amounted to once a week, he changed his evidence to it being only five per cent of the time.
[16] Affidavit of Ms Denys filed 15 August 2023, paragraph 16.
Mr Kellett’s evidence was contradicted by the evidence of his own witness, Ms O. She gave oral evidence that she visited the Suburb B property approximately once a month, and sometimes stayed overnight. She gave the following evidence:
COUNSEL FOR [MS DENYS]: All right. And do you know whether or not [Ms Denys] ever slept in [Mr Kellett]’s room?
[MS O]: Of course. Always.
COUNSEL FOR [MS DENYS]: All right. So from what you saw, [Ms Denys] would always sleep in [Mr Kellett]’s room. Is that right?
[MS O]: When I would sleep over, in the morning [Ms Denys] would come out of his bedroom. So obviously they were together. I mean, I wasn’t there every day.[17]
[17] Transcript of Proceedings, page 166.
Ms O’s evidence is consistent with Ms Denys’ evidence that she shared the master bedroom with Mr Kellett.
Ms Denys annexed photographs to her affidavit of the parties’ bedroom and deposed to some of the items in the bedhead being hers. In the previous trial, Mr Kellett gave the following evidence:
COUNSEL FOR [MS DENYS]: And it’s a photo of you in bed, isn’t it, with the cats?
[MR KELLETT]: Yes.
COUNSEL FOR [MS DENYS]: And you see all the knickknacks on the left-hand side of the bed, don’t you?
[MR KELLETT]: Yes, I do see them.
COUNSEL FOR [MS DENYS]: Yes. And they are [Ms Denys]’, aren’t they?
[MR KELLETT]: No, they’re not [Ms Denys]’.
COUNSEL FOR [MS DENYS]: And there are numerous knickknacks above the left-hand side of the bed, in the bedhead. Do you see those?
[MR KELLETT]: Yes.
COUNSEL FOR [MS DENYS]: They are [Ms Denys]’, aren’t they?
[MR KELLETT]: I don’t believe so.
COUNSEL FOR [MS DENYS]: When you say you don’t believe so, sir, whose are they?
[MR KELLETT]: Mine.[18]
[18] Transcript of Proceedings, page 95.
Mr Kellett contradicted that evidence orally in this trial. He gave evidence that Ms Denys’ glasses case was depicted in the photograph, and that a jar in the bedhead shelving was also Ms Denys’. Mr Kellett admitted that he falsely represented in correspondence to Ms Denys’ solicitor that the photographs were not of the master bedroom at the Suburb B property. I reject his evidence that the parties did not share a bedroom throughout the period of their cohabitation.
Mr Kellett called evidence from his daughter, Ms G. Ms G was a regular visitor to the home and lived with the parties for a period of time. She deposes to Ms Denys having her own room at the Suburb B house. I do not place any significant weight on Ms G’s evidence. Despite giving evidence that her father is like her best friend and they confide in each other, she repeatedly gave evidence that the parties were not in a sexual relationship. So much is clearly contradicted by the evidence both of her father and Ms Denys. I decline to prefer her evidence to that of Ms Denys, corroborated by Ms O, in those circumstances.
It is Mr Kellett’s evidence that Ms Denys was his tenant. He adduced no evidence in relation to the supposed rental arrangement. Ms Denys gave evidence in the previous trial that she made payments of $100 per week “to go towards food, electricity, accommodation costs, the TV and everything”.[19] Though the payments were described in bank statements as ‘rent’, that characterisation was later changed to ‘living expenses’.[20] In this trial, Mr Kellett asked Ms Denys in cross-examination whether she had ever addressed him as her landlord, to which she gave unchallenged and uncontradicted evidence that she had not. The evidence does not satisfy me that Ms Denys was Mr Kellett’s tenant.
[19] Transcript of Proceedings, page 15.
[20] Transcript of Proceedings, page 24.
I am satisfied that during the parties’ cohabitation, they occupied the same bedroom.
Whether a sexual relationship existed
Mr Kellett gave evidence that the parties’ sexual relationship developed when he commenced staying overnight at Ms Denys’ home in 2013. I have rejected his evidence that there was a break in the parties’ relationship in 2014 or early 2015.
During the parties’ cohabitation from mid-2015 until July 2020, Ms Denys deposes as follows:
[Mr Kellett] and I lived together as boyfriend/girlfriend, or partners, as the case may be… we enjoyed a committed (sexual) relationship…[21]
…. [Mr Kellett] and I shared the same bedroom for many years. We were in an intimate and sexual relationship during this time. We had sex regularly. More often than not, [Mr Kellett] instigated sexual relations between us. In any event, I have never forced [Mr Kellett] to, or performed any sexual act on [Mr Kellett], without his consent.[22]
[21] Affidavit of Mr Denys filed 15 August 2023, paragraph 17.
[22] Affidavit of Mr Denys filed 15 August 2023, paragraph 59(b)(i).
Mr Kellett did not challenge Ms Denys’ evidence. Nevertheless, he gave oral evidence that the parties’ sexual relationship during the period of their cohabitation did not commence until three months after that cohabitation and ceased approximately two and a half years into the relationship. I prefer Ms Denys’ unchallenged evidence.
Mr Kellett gave oral evidence that the cessation of the parties’ sexual relationship occurred upon him putting a lock on the bedroom door in late 2017. He nevertheless did not challenge Ms Denys’ evidence that the lock was not put on the door until June 2020. I do not accept Mr Kellett’s evidence. He gave oral evidence that the parties had engaged in non-consensual sex on ten or fifteen occasions prior him putting a lock on the door. That evidence directly contradicted his evidence in the previous trial, when he gave evidence that non-consensual sex had occurred once prior to him putting the lock on the door.
Mr Kellett called Mr D to give evidence in his case. Mr D has been a friend of Mr Kellett for around 55 years. He installed the lock on the bedroom door. He deposed to doing so “approximately two years before [Ms Denys] left” the Suburb B property.[23] Mr D’s oral evidence about time frames was inconsistent with that affidavit evidence. He gave oral evidence that the parties lived together for about two years, rather than the five years agreed by the parties. He then gave oral evidence that he probably installed the lock six to twelve months before Ms Denys moved out. Although Mr D gave oral evidence that he did not understand the parties to really be in a relationship, he was also unaware of them having a sexual relationship until after they had ceased living together. I place little weight on Mr D’s evidence in those circumstances.
The degree of financial dependence or interdependence, and any arrangements for financial support, between the parties
[23] Affidavit of Mr D filed 27 June 2022, paragraph 7.
It is common ground that the parties’ did not have joint finances. Nevertheless, as will be seen, Ms Denys provided the holding deposit for the purchase of the Suburb B property in Mr Kellett’s name.
Mr Kellett asked Ms Denys whether she had a spending problem while living at her home. She gave oral evidence that Mr Kellett, his daughter, and son-in-law would borrow money from her, that she was happy to give money to his family from her bank account, and that she felt like she managed okay. Mr Kellett did not challenge that oral evidence, which I accordingly accept.
Mr Kellett suggested to Ms Denys that he had once asked her to vacuum the floor in exchange for money, using the inbuilt vacuum system. Ms Denys denied the suggestion. She gave evidence that he had never paid her for cleaning the home, which she had done for free. Her evidence was not challenged and I accept it.
The ownership, use and acquisition of the parties’ property
In 2013, Mr Kellett received settlement monies following contested litigation in relation to his mother’s deceased estate. Ms Denys gives the following unchallenged evidence:
… [Mr Kellett] was looking to buy a house. We looked at houses together. Ultimately, [Mr Kellett] purchased the property at [T Street] in [Suburb B] ("[Suburb B] ") which later became our shared residence. I provided the initial holding deposit for [Suburb B], in the amount of either $1000 or $2000.[24]
[24] Affidavit of Ms Denys filed 15 August 2023, paragraph 12.
Ms Denys also gave unchallenged oral evidence that both parties picked the house and that they both liked it.
Mr Kellett gave oral evidence that contradicted Ms Denys’ evidence. He denied that Ms Denys had accompanied him when he purchased the house, that she looked at the house with him, or was there at any time when the house was purchased. That evidence directly contradicted his own evidence given during the previous trial:
COUNSEL FOR [MS DENYS]: Yes. Then prior to you purchasing the house in [Suburb B], did you look at other properties?
[MR KELLETT]: I looked at one. It was actually one day – I saw a house in the morning, and I saw this house – the second house. That’s when it was purchased. I didn’t look at numerous properties, no. Just the two – one – both in [Suburb B].
COUNSEL FOR [MS DENYS]: All right. Did [Ms Denys] accompany you to look at that first house?
[MR KELLETT]: No.
COUNSEL FOR [MS DENYS]: Well, she – see, she has given evidence about looking at houses together. You dispute that, I take it?
[MR KELLETT]: She came to the – the one that I purchased. She came over, and she came and looked through with me, yes.
COUNSEL FOR [MS DENYS]: Well, why is she looking at a house with you? Why are you looking at a house together?
[MR KELLETT]: Because she was a friend.
COUNSEL FOR [MS DENYS]: I see. You didn’t look at any houses with other friends, did you?
[MR KELLETT]: The first house, I went with my son – we looked at that together.
COUNSEL FOR [MS DENYS]: Yes?
[MR KELLETT]: And he had to go to work, so [Ms Denys] came over in the afternoon, and we saw the second house – the second house on that day.[25]
[25] Transcript of Proceedings, page 98.
When the contradiction was drawn to Mr Kellett’s attention, he gave the following oral evidence:
COUNSEL FOR [MS DENYS]: … that clearly was your evidence that [Ms Denys] inspected the house with you?
[MR KELLETT]: I don’t recall, I don’t recall her coming, no.
COUNSEL FOR [MS DENYS]: Well, why did you give evidence that she did?
[MR KELLETT]: It was after I purchased it, she wanted to have a look at the house before she gave me the money.
COUNSEL FOR [MS DENYS]: No, that’s not my question sir?
[MR KELLETT]: O sorry.
COUNSEL FOR [MS DENYS]: Why do you give evidence that she attended with you?
[MR KELLETT]: She didn’t attend the initial um…
HIS HONOUR: That’s not an answer to the question either [Mr Kellett]?
[MR KELLETT]: Alright, ask me the question again please.
COUNSEL FOR [MS DENYS]: Yes, why did you give evidence that she attended to inspect the house with you?
[MR KELLETT]: I must have made a mistake.
COUNSEL FOR [MS DENYS]: It was a very detailed account of what happened, about your son attending in the morning and [Ms Denys] coming over in the afternoon, wasn’t it?
[MR KELLETT]: Yes, I suppose so.
COUNSEL FOR [MS DENYS]: So, do you concede now that [Ms Denys] did attend at that inspection?
[MR KELLETT]: I have to concede she did, and I probably... I wasn’t a hundred per cent sure, but now you’re sort of painting the picture, I can, you know, recall it now. She did come, but she had no input to what house I liked, or whatever, she just trailed behind me.
Mr Kellett’s evidence is accordingly replete with internal contradictions. Even after the contradiction with his earlier evidence was pointed out to him, Mr Kellett’s oral evidence to this Court remained inconsistent. When those further inconsistencies were drawn to his attention, he gave evidence: “I’m trying to be as honest as I can.”
I prefer Ms Denys’ unchallenged evidence to Mr Kellett’s inconsistent evidence, and find that Ms Denys and Mr Kellett inspected properties together for Mr Kellett to purchase, before he purchased the property they both liked, which subsequently became their shared residence.
I also accept Ms Denys’ evidence that she bought crockery, linen, towels, pillows, pictures and rugs for their home, paid for window cleaning and outside lighting. I also accept her evidence that the parties jointly selected furniture for Mr Kellett to purchase, and that she provided a helping hand while Mr Kellett installed a skylight and built a garage for his motor vehicles.
The degree of mutual commitment to a shared life
Mr Kellett gave oral evidence that while Ms Denys was living at the Suburb R property, the parties slept together, ate together and went on outings together. He did not challenge Ms Denys’ evidence that they went to U Venue together in 2013, on a motor vehicle ride together in 2013 and visited the V Venue together in 2013. He also did not challenge Ms Denys’ evidence that she took him to his solicitor’s office on three or four occasions in 2013. Mr Kellett also gave oral evidence that he sometimes stayed at Ms Denys’ Suburb R property watching TV at times that Ms Denys was absent from the property. I accept both parties’ evidence which was not the subject of challenge.
I also accept Ms Denys’ unchallenged evidence that the parties went garage sale shopping together from late 2013 or early 2014, took a camping trip together with their dogs to Region X in 2014, went on a motor vehicle trip together in early 2017, went camping to Town W with their dogs in late 2017, and went camping in City H in around 2016. I also accept her unchallenged evidence that she travelled to Queensland with Mr Kellett and his grandson, and that she also travelled to City Y with Mr Kellett.
The parties also travelled together on several occasions to acquire motor vehicles for Mr Kellett. Mr Denys deposed that the parties travelled to Town Z to buy parts to fix up a motor vehicle that she had given him. Mr Kellett challenged that evidence on the basis that the motor vehicle was never fixed. He did not challenge the evidence of the parties travelling to Town Z to purchase parts. He also did not challenge Ms Denys’ oral evidence that she accompanied him to City AA to buy a similar motor vehicle, or that she had driven a vehicle to Suburb BB, where Mr Kellett’s motor vehicle had broken down in late 2017, to enable him to retrieve it. I accept Ms Denys’ evidence.
Mr Kellett suggested to Ms Denys that he had never accompanied her to a disability camp that she regularly attended. Ms Denys agreed that he had not, but that it was the camp’s policy that only people with disabilities could attend. That evidence was not contradicted or challenged by Mr Kellett and I accept it. I reject any suggestion that Mr Kellett’s failure to attend the camp suggests the parties were not living together on a genuine domestic basis.
The parties shared in domestic tasks together. Ms Denys gave oral evidence that:
I cooked sometimes, I’d say probably a high percentage of washing up is what I did, setting the table, and also making salads, these types of things. Because I know you that you actually love having barbeques, I know you absolutely love barbeques, love them. So you liked being the chef, that’s what you enjoyed doing. You liked being the chef, getting the food cooked and prepared, and I would just help on the periphery. I would just check to make sure everything had been turned on and off, and then I’d wash up. That was actually a very regular occurrence, doing the washing up.
I enquired of Ms Denys whether the parties ate together, to which she gave the following oral evidence:
Yes, just next door to each other in fact. And we’d sit down and we’d watch TV. We’d look at each other and have a drink together, and we’d sit there and watch telly.
Ms Denys’ oral evidence was consistent with her affidavit evidence wherein she deposes, “we ate our meals together; we shared household duties, shopping, etc; we went out together and generally lived our lives as a couple would”.[26] Whilst Mr Kellett subsequently contradicted that evidence whilst he was being cross-examined, he did not challenge Ms Denys’ evidence. Because of the other significant inconsistencies in Mr Kellett’s evidence, I prefer Ms Denys’ evidence.
[26] Affidavit of Ms Denys filed 15 August 2013, paragraph 17.
Both parties provided care for each other. I accept Ms Denys’ unchallenged evidence in that respect. Ms Denys nursed Mr Kellett after his surgery in 2015, and undertook the parties’ “daily tasks which required mobility, such as shopping and all the dog walking, and the like”.[27] Mr Kellett visited Ms Denys in hospital when she had an illness in 2017, and comforted and assisted her upon her release. Ms Denys nursed Mr Kellett after he fell at the CC Venue in 2018. In 2019, Mr Kellett was hospitalised due to an injury which subsequently became infected. Ms Denys attended hospital every day he was there for around a week and a half and bathed him every day. She performed a greater share of household tasks and chores after his release from hospital.
[27] Affidavit of Ms Denys filed 15 August 2013, paragraph 20.
Mr Kellett assisted Ms Denys to register for the National Disability Insurance Scheme, set up her online MyGov account and accessed her online banking, superannuation and other accounts.
Ms Denys also gave oral evidence that the parties had future plans together. She gave evidence that they planned to travel the world together after the old dog died. Mr Kellett put to her that he told her he had no intentions of travelling the world with her, which she denied. Mr Kellett adduced no evidence on the topic. I am not satisfied that Ms Denys’ evidence was successfully impugned by Mr Kellett’s challenge to it. I find that the parties did intend to travel overseas upon the death of their old dog.
Mr Kellett asserted in oral evidence that the parties’ relationship was one of “friends with benefits”, which he sought to define as a relationship involving friendship and sex. He also sought to characterise the relationship as “more sexual than a relationship” for him. He otherwise sought to suggest that Ms Denys had rented a room from him, and that they were just friends. Whilst Mr Kellett’s characterisations of the parties’ relationship might otherwise be relevant to his own commitment to the parties’ shared life together, I decline to give them any weight. I have referred already to the inconsistencies in Mr Kellett’s evidence that gives me general concern about its reliability. He also gave evidence that he knew the consequences of the parties’ cohabiting were “my assets could be taken from me”. I find Mr Kellett’s attempts to minimise the extent to which the parties were in a genuine domestic relationship more consistent with his endeavours to protect his assets than giving accurate evidence to the Court.
Ms Denys gives evidence that the parties “lived together as boyfriend / girlfriend, or partners, as the case may be”.[28] Mr Kellett did not challenge that evidence, nor did he challenge her evidence that the parties loved each other. I find her perceptions of the relationship to be honest, though of course they are not determinative of its legal characterisation.[29]
Whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship
[28] Affidavit of Ms Denys filed 15 August 2013, paragraph 17.
[29] Lennon & Sanil (2020) FLC 93-962 at [69] citing Sinclair & Whittaker at [65].
It was not suggested by either party that their relationship was relevantly registered.
The care and support of children
Whilst there are no children of the parties’ relationship, both have adult children from previous relationships. Mr Kellett has a grandson named F. Ms Denys gives evidence that she celebrated F’s fourth birthday with his mother and Mr Kellett in Suburb DD in 2016. She also gives evidence that the parties took F to Town EE around the same time. She deposes to the parties taking F to the CC Venue in 2018, and also taking him to the FF Venue in 2018. None of Ms Denys’ evidence in that respect was challenged, and I accept it.
Ms Denys deposes that she and Mr Kellett regularly cared for F, including him staying with them for at least one week of each school holidays, and that F had his own bedroom at the Suburb B property. Ms M, a friend of Ms Denys, gave oral evidence that Ms Denys loved F and treated him as her own son. I accept that unchallenged evidence.
The reputation and public aspects of the relationship
In 2013, Ms Denys’ daughter, Ms HH, was married. Ms Denys gives evidence of Mr Kellett accompanying her to buy a mother of the bride dress prior to the event, and attending the wedding with her. Mr Kellett accepted that he had done so, although thought the event took place in 2014. I find that the parties attended Ms Denys’ daughter’s wedding as a couple, noting it is uncontroversial that they then enjoyed an exclusive sexual relationship.
Ms Denys deposes to the parties together attending a Mother’s Day celebration with Mr Kellett’s children in May 2016, his grandson’s fourth birthday in 2016, celebrating Father’s Day together in September 2016, and attending Ms Denys’ grandson’s second birthday in 2019. She deposes to arranging almost all of Mr Kellett’s birthdays for him during their time together, including a function at the JJ Club in Town KK in 2018 attended by Mr Kellett’s sister, brother-in-law, aunt and uncle; and a restaurant meal in Suburb LL in 2019 attended by Ms Denys’ daughter, Mr Kellett’s daughter, and Mr Kellett’s best friend. Ms Denys deposes to the parties celebrating her birthday at the Suburb B home with her daughter, son-in-law and grandson. Ms Denys also deposes to the parties spending every Christmas together from 2013 until 2019, including hosting Christmas for Mr Kellett’s children in alternate years, and usually attending Ms Denys’ daughter’s home for dinner on Christmas Eve. Ms Denys’ evidence was unchallenged and I accept it.
I also accept Ms Denys’ unchallenged evidence that she took Mr Kellett to visit his estranged father at an aged care facility in Suburb MM in 2016 and took Mr Kellett to two or three appointments with his lawyers relating to him challenging his father’s will after he had passed.
Mr Kellett put to Ms Denys in cross-examination that he had told the doctor testing her for a medical condition the arrangements for her typical day in some detail. Ms Denys gave evidence that Mr Kellett had accompanied her to the doctor on what was a very private health matter. She gave oral evidence that there was no way she would ever bring a landlord with her to visit a doctor to look at her private physical health. She also gave oral evidence that Mr Kellett was her next of kin for the doctor, and that he spoke for her at the appointment in the absence of an interpreter for her. The doctor had asked Ms Denys to bring her partner to the relevant appointment. I am satisfied that Mr Kellett attended as Ms Denys’ partner.
Ms L, a friend of Ms Denys, deposed that Ms Denys introduced Mr Kellett to her as her new boyfriend in around 2013 and thereafter referred to him as her boyfriend or partner. Her oral evidence was consistent with that affidavit evidence. Ms L’s evidence in that respect was not challenged by Mr Kellett, although she did accept that she did not see Ms Denys and Mr Kellett showing affection to each other.
Ms N, a friend of Ms Denys, also gave evidence that she was introduced to Mr Kellett by Ms Denys as her partner. She gave oral evidence that Ms Denys showed her around the Suburb B home and described the main bedroom as the parties’ room. Ms N accepted that she had not seen the parties in a romantic embrace. Her evidence is consistent with that of other witnesses and I decline to reject it.
Ms J, Ms Denys’ sister, deposes to Ms Denys making enquiries about Mr Kellett attending Ms J’s daughter’s wedding in 2014, although he did not ultimately attend. She also deposes to meeting with Mr Kellett in late 2019. She deposes to Mr Kellett stating he “had a lot of partners before he met” Ms Denys.[30] Her evidence is consistent with the parties being partners and no reason is advanced to reject her evidence. I decline to do so.
[30] Affidavit of Ms J filed 2 February 2022, paragraph 5.
Ms M also understood the parties to have been a couple. She visited their home approximately once per month. She gave evidence that she saw Ms Denys do domestic duties, such as cleaning the floors, vacuuming, hanging out washing and doing the dishes. She gave evidence of seeing the parties kiss each other and observing them to share a bedroom. She also gave evidence that both parties attended a sporting function together and cared for each other after they both fell. Ms M deposed to Mr Kellett and Ms Denys attending Ms M’s home on several occasions as a couple. I also find no reason to reject Ms M’s evidence.
Ms K deposes to having been introduced to Mr Kellett by Ms Denys as her boyfriend. She deposes to seeing the parties kiss and hug, and share a bedroom during the time Mr Kellett spent at the Suburb R property prior to their cohabitation in Suburb B. She gave oral evidence that she observed Mr Kellett show affection to Ms Denys by putting his arms around her or kissing her when she attended the Suburb B property. There was nothing about the way Ms K gave her evidence that suggested to me it should be rejected.
Mr P, a friend of Mr Kellett, gave unchallenged evidence for Mr Kellett that he had only met Ms Denys a few times, and had not seen or heard “anything that suggested a relationship”.[31] He gives evidence that Mr Kellett did all of the cooking and cleaning up on those occasions Mr P visited for tea. His evidence is of little assistance.
[31] Affidavit of Mr P, filed 27 June 2022, paragraph 2.
Mr Kellett suggested to Ms Denys that the reason she had called no family members as witnesses in her case was because they knew the parties were just friends and she was renting the house. Ms Denys denied the proposition, and gave oral evidence that her family members were frightened of Mr Kellett because he was always shouting and yelling. I do not accept the absence of Ms Denys’ family members as witnesses establishes their belief that the parties were just friends or that Ms Denys was renting a room from Mr Kellett.
Other circumstances
Ms Denys deposes that her receipt of the Disability Support Pension is not conditional on her relationship status, and that she has at all times been transparent in her representations to Centrelink. Mr Kellett asked Ms Denys whether she had told Centrelink she believed she was in a de facto relationship. Ms Denys gave oral evidence that, at Mr Kellett’s request, she lied and told them he was gay. Mr Kellett did not challenge that evidence, nor did he adduce other evidence to overcome it.
Ms Denys also deposes that her receipt of Rent Assistance from Centrelink is dependent on her relationship status. She received no Rent Assistance from Centrelink from late 2015. Ms Denys’ evidence that she had no recollection of signing a Centrelink Rent Certificate which was never submitted to Centrelink was not challenged by Mr Kellett.
Mr Kellett suggested to Ms Denys in cross-examination that he had asked her to vacate his home in 2016 after she picked up an object to threaten him. She gave evidence that she had picked up such an item and put it back down again while she was some distance away from Mr Kellett. She did not accept that he had threatened to call the police. She gave evidence that Mr Kellett was laughing, seemed to think it was a joke, and then kissed her. Mr Kellett gave no contradictory evidence and did not successfully challenge Ms Denys’ oral evidence, which I accordingly accept.
Mr Kellett cross-examined Ms Denys about various other interactions between them. As Ms Denys suggested during her oral evidence, they were interactions indicative of a couple living together on a genuine domestic basis. They included:
(a)Mr Kellett put to Ms Denys that he “would continually say” to Ms Denys that she lived in a bubble. Ms Denys gave evidence that he used to say to her “you are my bubble” because she looked after him. Ms M gave unchallenged evidence, which I accept, that she asked Mr Kellett if Ms Denys made him happy, to which he replied that she is “my bubble in the world” or words to that effect, which she understood to be Mr Kellett’s affectionate term for Ms Denys.[32]
(b)Mr Kellett asked Ms Denys whether she had a spending problem while she was living with him. She denied that she did. Mr Kellett enquired whether she went out to shops “day in, day out”. She gave evidence that she would go twice or three times per week. She gave oral evidence that she jokingly said to him that she was born to shop. Mr Kellett also asked Ms Denys’ witnesses about Ms Denys’ spending habits.
(c)Mr Kellett put to Ms Denys that he used to say to her that she was the laziest person he knew. Ms Denys agreed that he did.
(d)Ms Denys gave evidence that Mr Kellett asked her to give up cigarettes if she loved him. She gave evidence she did so, but remained a social smoker. Mr Kellett put to Ms Denys that he caught her smoking by the side of the house, which Ms Denys accepted may have happened once. Ms L gave unchallenged evidence that when she visited the Suburb B home between 2015 and 2020, Mr Kellett used to tell Ms Denys to stop smoking.
These interactions are consistent with parties living together as a couple.
[32] Affidavit of Ms M filed 3 February 2022, paragraph 8.
Ms Denys gave compelling oral evidence in response to a suggestion by Mr Kellett that she spent $186,000 on herself while she was living with him. She gave the following evidence, addressed directly to Mr Kellett:
Yes, I don’t gamble. You agree you asked me to buy things from the [discount] shop for yourself, for the house. I mean the jumper you’ve got on, I bought that for you, the jumper you’re wearing. I gave that to you, from the [discount] shop. It was two dollar jumper. So the jumper you’re wearing now, I bought for you from a [discount] shop. And you always wear it, it’s your favourite jumper. Who bought it? I did. And the shirt as well, I gave to you for your birthday. So the shirt you’re wearing now… [indistinct]. So I don’t, I didn’t buy a shirt or a jumper, um, landlord. So I bought those because I loved you, I love you, and I care about you, I cared about you. What I’m saying is that yes, I certainly did buy that jumper that you’re wearing, and also the shirt that you’re wearing too. And, I bought those for you for the simple fact that I loved you. So, you know, I didn’t go and buy those types of clothes for a landlord, did I? Would I do such a thing? I would think not.
Mr Kellett did not challenge or contradict that evidence given by Ms Denys. I find that Mr Kellett was wearing both a shirt and jumper that had been purchased by Ms Denys for him. I am satisfied that the purchasing of clothes by Ms Denys for Mr Kellett is consistent with their having had the relationship of a couple living together on a genuine domestic basis.
Ms Denys also gave unchallenged evidence that she gave Mr Kellett a run-down motor vehicle that had previously belonged to a family member. The giving of such a gift to Mr Kellett, whom she describes as a motor vehicle enthusiast, is also consistent with a couple living together on a genuine domestic basis.
CONCLUSIONS
During the parties’ cohabitation from mid-2015 until July 2020, they shared a bedroom and had a sexual relationship, they socialised together, they attended events of significance to each other’s family, they travelled together, they shared plans for the future together, they nursed each other during periods of illness or injury, including Ms Denys bathing Mr Kellett while he was hospitalised in 2019, they provided care for Mr Kellett’s grandson together and they interacted with others as a couple.
I am satisfied that establishes a composite picture that they had a relationship as a couple living together on a genuine domestic basis during their period of cohabitation.
I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Glass. Associate:
Dated: 18 September 2023
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