HARRELL & NESLAND
[2014] FCCA 1921
•26 August 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HARRELL & NESLAND | [2014] FCCA 1921 |
| Catchwords: FAMILY LAW – Property – dispute as to when de facto relationship ceased – whether de facto relationship finally broke down before 1 March, 2009 – where de facto relationship did not finally breakdown before 1 March, 2009. |
| Legislation: Family Law Act 1975, ss.4AA, 4AA(b) 90RD |
| Fenton & Marvel [2013] FamCAFC 132 Hibberson v George (1989) 12 FamLR 725 S & B [2005] 1 Qd R 537 |
| Applicant: | MS HARRELL |
| Respondent: | MR NESLAND |
| File Number: | BRG 6489 of 2012 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 23 April 2013 |
| Date of Last Submission: | 23 April 2013 |
| Delivered at: | Brisbane |
| Delivered on: | 26 August 2014 |
REPRESENTATION
| Counsel for the Applicant: | Ms Pendergast |
| Solicitors for the Applicant: | Matthew Love Solicitors |
| Counsel for the Respondent: | Mr Kirk SC |
| Solicitors for the Respondent: | Hirst & Co. |
ORDERS
THE COURT DECLARES:
Pursuant to ss.90RD(1) and (2) of the Family Law Act1975, that:
(a)a de facto relationship existed between the parties;
(b)such relationship commenced in (omitted) 1997; and
(c)such relationship did not finally breakdown before 1 March, 2009.
The proceedings be listed for further directions at 9:30am on 30 September 2014.
IT IS NOTED that publication of this judgment under the pseudonym Harrell & Nesland is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT AT BRISBANE |
BRG 6489 of 2012
| MS HARRELL |
Applicant
And
| MR NESLAND |
Respondent
REASONS FOR JUDGMENT
The applicant filed an application for property adjustment and spouse maintenance orders on 19 July, 2012. She contends that she and the respondent were in a de facto relationship that ceased on 23 May, 2012.
The respondent filed a response on 15 October, 2012 wherein he seeks the dismissal of the application on the ground that the parties’ de facto relationship ceased before 1 March, 2009. An alternate ground (which is no longer pressed) is that Australia is a wholly inappropriate forum for these proceedings. He says that if the Court so finds, the Court is without jurisdiction to hear and determine the application.
The parties agreed to the Court determining, as a preliminary issue, whether the Court had jurisdiction to entertain the wife’s application. For that purpose, the parties defined the “jurisdictional issue” to be determined by the Court as “the issue whether their de facto relationship existed on or after 1 March 2009”. The Court made orders in those terms.
The parties each submit that the matter which requires the Court’s determination is whether a de facto relationship existed between the parties on or after 1 March, 2009.
After the trial was conducted in this matter and judgment was reserved, the Full Court of the Family Court of Australia delivered judgment in Fenton & Marvel [2013] FamCAFC 132. In that case, Murphy J explained the circumstances in which federal courts such as the Family Court of Australia and the Federal Circuit Court of Australia have come to be invested with jurisdiction to determine property adjustment applications between de facto spouses:
Jurisdiction in De Facto Relationships
49. The jurisdiction to hear applications for property settlement orders emanating from de facto relationships arises by a referral of powers by the States to the Commonwealth (insofar as it pertains to Queensland, where this case arose and was heard, it arises via the Commonwealth Powers (De Facto Relationships) Act 2003 (Qld)). The [Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) (“the Amendment Act”)] effected the referral by inserting Part VIIIAB and making other consequential amendments (for example, Part VIIIB and s 4AA). The latter section defines the meaning of “de facto relationship.”
50. Section 86 of the Amendment Act provides, relevantly, that “Parts VIIIAB and VIIIB, and subsection 114(2A) of the [Family Law] Act do not apply in relation to a de facto relationship that broke down before commencement” (emphasis added). There is nothing in the Amendment Act that requires the relationship to be in existence as at the date of commencement so as to attract jurisdiction; the Amendment Act merely requires that the relationship broke down after commencement. No requirement of the (Family Law) Act specifies any such requirement.
51. Commencement was set at 1 March 2009. However, the Proclamation as made was, for reasons not relevant to this appeal, ineffective to establish that commencement date. Section 2(1) of the Family Law Amendment (Validation of Certain Orders and Other Measures) Act 2012 (Cth) cured that difficulty. The commencement date for the Amendment Act is now, validly, 1 March 2009.
52. If the jurisdiction of the court is to be attracted so as to permit the exercise of power to make a property order, a number of facts – indeed, “jurisdictional facts” (see, Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 at 148) – must be established and the findings of a trial court must reflect satisfaction of those facts on the evidence before the court. Those jurisdictional facts are found, relevantly, in s 86 of the Amendment Act, and ss 4AA and 90SB of the Act.
53. Taken together, the provisions of the Amendment Act and the Act specify that a court is required to find that a relationship did not break down before 1 March 2009; that the relationship which broke down after commencement was a “de facto relationship”; and, that the period, or total of the periods, of the de facto relationship is “at least 2 years”. Because s 86 refers to a “de facto relationship that broke down before commencement”, the first and second of the relevant findings are intertwined.
54. The requirement for the de facto relationship to have subsisted for “at least 2 years” can be met by aggregating periods of de facto relationship (see, Dahl & Hamblin [2011] FamCAFC 202; (2011) FLC 93-480). That fact gives rise to two considerations relevant to the other two jurisdictional facts just referred to. The first is that the de facto relationship must have broken down finally after 1 March 2009. Secondly, the finding that there was a de facto relationship subsisting for “at least two years”, can be comprised of findings that there were one or more periods of a de facto relationship in existence prior to commencement provided that at least some of the de facto relationship existed post-commencement. (That is because if at least some of the de facto relationship existed post-commencement, axiomatically, it cannot have broken down finally before commencement).
55. The legislative requirements have produced differing formulations of the test that must be applied if jurisdiction is to be attracted. Care must be taken if error is to be avoided. For example, other relevant factual findings may make it possible to say, on the particular facts of a case, that jurisdiction is attracted by reason of the de facto relationship being in existence “as at” or “on” 1 March 2009. But none of those formulations is the same thing as saying that a court must be satisfied that a de facto relationship existed “as at” or “on” 1 March 2009 so as to attract jurisdiction. While a finding that a de facto relationship exists “on” or “as at” 1 March 2009 may, in combination with other factual findings, encompass satisfaction of the relevant jurisdictional fact (that the de facto relationship did not break down finally before 1 March 2009), a finding alone that a de facto relationship existed “on” or “as at” that date does not do so.
56. In my view, the difference is not mere sophistry; at issue is a jurisdictional fact. There is no jurisdictional requirement to the effect that a de facto relationship must exist “as at” or “on” 1 March 2009.
Neither party has sought to bring the decision in Fenton & Marvel (above) to my attention, nor have they sought to make any further submissions having regard to what fell from the Full Court in that case. It seems to me, however, that to answer the question that has been posed for determination in this matter will be to repeat the error identified by the Full Court in Fenton & Marvel. I do not propose to do that.
It is appropriate to reformulate the question to be answered as follows: “Did the parties’ de facto relationship finally break down before 1 March, 2009”.
For the reasons set out below, in my view, the answer to that question is: “No”.
The facts as I find them to be
First, a word on credibility. Both parties suggest that an assessment of the credibility of the parties will be important. They also both agree that, by any standards, this was a most unusual relationship.
There is reason to be critical of the evidence given by both Mr Nesland and Ms Harrell. In various respects each gave evidence that was internally inconsistent and inconsistent with representations that they have, over the years, made to others about the issues now in dispute between them. Additionally, each demonstrated the capacity to be a fractious witness when it suited their purpose. However, I was not driven to the conclusion by either Mr Nesland or Ms Harrell that their evidence should be discounted in its entirety. Overall, neither’s credibility was so badly damaged in cross-examination that I am compelled to reject it unless corroborated.
Ms Harrell is a (country omitted) citizen with a permanent residency status in Australia. Mr Nesland is a (country omitted) citizen. They met in about 1993 when they were both working in (country omitted).
They commenced a relationship in (omitted) 1997 when they commenced living together in (country omitted) in a unit then occupied by Ms Harrell. At that time, Mr Nesland was forty-nine years of age and Ms Harrell was 50 years of age.
At the commencement of the relationship, Mr Nesland owned a (business omitted) (via a corporate entity) called (business omitted). He owned a yacht called (omitted). Ms Harrell had $110,000.00 in a bank account which she had received as a property settlement from her previous husband.
Ms Harrell characterises the relationship at that time as a “de facto relationship”. Mr Nesland concedes that it is probable that in the “early stages” of their relationship it would qualify as a de facto relationship for the purposes of s.4AA of the Family Law Act1975. Having regard to the findings that I have detailed below, and the concession by Mr Nesland, I am satisfied that at the time the parties commenced to live together, the parties’ relationship was a de facto relationship for the purposes of the Act.
There are no children of the relationship, although Ms Harrell has two daughters from a previous relationship, Ms I and Ms J. Mr Nesland also has one child from a previous relationship. All of those children are now adults.
There is a dispute between the parties about the circumstances in which they came to live in Ms Harrell’s unit. Ms Harrell alleges that Mr Nesland simply showed up at her front door step one day asking to move in. Mr Nesland suggests that Ms Harrell invited him to move in. In my view it is not necessary to quell this controversy because, whatever is the case, they agree that Mr Nesland came to live with Ms Harrell in her unit in about (omitted) 1997. Both parties agree that they were spending “a lot of time overnight” and otherwise with each other and that their relationship was going well.
I accept Mr Nesland’s evidence that when the parties commenced living together in Ms Harrell’s unit, they shared a bedroom. That only lasted about 2 to 3 months however, after which they each occupied their own bedroom in Ms Harrell’s unit. I accept that soon after they commenced living together, she told Mr Nesland that she needed to sleep alone and that she could not sleep with someone else in the bed. I accept that she also told Mr Nesland “I am well past sharing a bedroom” and “I am too set in my ways to share a bed with someone”.
Ms Harrell gave evidence, which I accept, that she and Mr Nesland would however, share hotel rooms when they were travelling together because of the convenience and practicality of doing so, but that she did not wish to share a bedroom at home with Mr Nesland because “he is a big man and tosses, turns and flails in his sleep. He also snores.” I reject Mr Nesland’s evidence that when the parties travelled together, whilst they occupied the same hotel room, they either slept in separate beds or one of them slept on a couch in the room.
Mr Nesland alleges that when the parties established separate bedrooms, he had a conversation with Ms Harrell to the following effect:
As you no longer want to sleep with me or have sex our relationship has to proceed in future on the basis that we are just friends. We have both been divorced and we don’t need any more nonsense in our lives. Ms Harrell can either move out or stay here and occupy the other bedroom and we can be friends. We would effectively be flatmates and friends. Do you want me to move out or are you happy for here on that basis.
Mr Nesland alleges that Ms Harrell responded with words to the effect:
I don’t want you to move out, Ms Harrell agree that you should stay and should flatmates and friends.
He also alleges that they had a conversation about their financial arrangements wherein he said words to the effect:
I know that your employer is paying the rent for this apartment. You can look after the costs of the rent and I will pay for our food and living expenses.
Mr Nesland alleges that Ms Harrell said: “I agree.”
The parties agree that on most mornings, Mr Nesland would come into Ms Harrell’s bed. Ms Harrell alleges that they would cuddle but they would not engage in any sexual activity. Mr Nesland alleges that he would either sit on the bed or get under the covers. He alleges that usually Ms Harrell would then immediately get out of bed and leave him there. However, I prefer Ms Harrell’s evidence on this point. It does not seem logical for Mr Nesland to leave his own bed and get into Ms Harrell’s bed knowing that it was highly likely that she would immediately leave him there. I think it more likely that Ms Harrell remained in the bed and as she puts it, they cuddled.
For those reasons, I think it highly unlikely that the conversations alleged by Mr Nesland about the nature of the parties’ relationship when they moved into separate bedrooms and set out above occurred. I do not accept that when the parties commenced sleeping in separate bedrooms, the conversations set out in paragraphs 16 and 17 above took place. The parties conduct in sharing a bed each morning and “cuddling” is inconsistent, in my view, with their relationship being one of “flatmates and friends”. The relationship was, seemingly, more intimate than that.
From (omitted) 1997 until July, 2011 the parties shared a common residence. In all, they resided in three different units, each of which was provided by Ms Harrell’s employer. In each unit they had separate bedrooms and bathrooms. It is significant, I think, that they moved residence on three occasions and on each occasion they did so together.
Ms Harrell’s evidence is that the parties occupied their residential units as a couple and apart from their separate bedrooms, they shared all of the other areas within the apartment, such as the lounge room and kitchen. Mr Nesland denies that allegation. He says that in the first few months of the parties’ relationship and whilst they were sharing the same bedroom, they “did share the living area and kitchen.”
However, after he commenced sleeping in his own bedroom in early 1998, he alleges that they “did not share the living area and kitchen equally”. He alleges that Ms Harrell generally ate her meals in her bedroom and watched TV in there. He suggested that Ms Harrell would generally prepare an evening meal for both she and Mr Nesland. She was usually doing that when he returned to the apartment from work at about 6.00pm. Once she had prepared a meal, she would leave his on the kitchen bench and she would retire to her bedroom to eat her own dinner. Mr Nesland positively asserts that he and Ms Harrell “did not eat meals together in the apartment”. In his trial affidavit filed on 4 February, 2013 he swears:
In the morning Ms Harrell would have coffee in the apartment and then leave for work usually without seeing the Applicant.
I reject Mr Nesland’s evidence about these matters. I am not satisfied that the parties lived separate lives as he describes in his evidence. I accept Ms Harrell’s evidence that she would make dinner for both she and Mr Nesland whilst Mr Nesland would watch television. Generally, they then ate their dinner together while watching the 7 o’clock news on television.
Mr Nesland’s evidence that he would have coffee in the apartment in the morning and then leave for work usually without seeing the applicant is entirely inconsistent with his own evidence that it was his usual practice on most mornings to go into Ms Harrell’s bed and say “good morning”. As I have set out above, I accept Ms Harrell’s evidence that the parties would cuddle in bed most mornings until 2008/2009. I accept her evidence that Mr Nesland would kiss her goodbye each morning before he left for work. Mr Nesland agreed in cross-examination that each morning before he left for work he would kiss Ms Harrell goodbye. I reject his claim that she forced him to do that.
Further, I reject Mr Nesland’s evidence that after early 1998 when he began occupying his own bedroom, he had only infrequent conversations with Ms Harrell in the apartment. Given the nature and extent of the parties financial interrelationship described later in these reasons it is, in my view, inconceivable that the parties only had infrequent conversations or that if they did confer more than infrequently those conversations only took place away from their residence. Moreover, Mr Nesland’s evidence appears internally inconsistent on this point. In his trial affidavit he swears:
I have previously referred to my conversation with the Applicant which occurred at the time I moved into and commenced occupying a separate bedroom. … We resided in the way that I have set out previously in this Affidavit and rarely spoke to each other. Although we did not argue for several months after early 1998, after this we would argue regularly and these arguments became more frequent as time passed. We for instance argued as the Applicant would say ‘I have had to contact your staff about a maintenance issue at this unit and I’m not satisfied with how they handled it. They are hopeless’. I would generally respond ‘My staff are not hopeless ‘. We would then argue about the Applicant’s criticisms of my staff. I would generally then say ‘I’m happy to move out’. The Applicant would always then say ‘Please don’t do that ‘. We argued about other things as well including some financial issues however I refer to these subsequently.
The notion that Mr Nesland and Ms Harrell would argue regularly is inconsistent with the notion that they rarely spoke. Further, it is difficult to understand, and no evidence was given by Mr Nesland to explain the proposition that he would remain living in the same apartment with somebody to whom he rarely spoke and then only to argue with them.
The parties agree that they each utilised a separate bathroom. Their apartment had two and Ms Harrell used the ensuite bathroom attached to her bedroom and Mr Nesland used the second main bathroom.
Mr Nesland called evidence from the parties’ housekeeper Ms L. She was not cross-examined. Her uncontradicted evidence confirmed the parties own evidence that they utilised separate bedrooms and bathrooms. She gave evidence that she would collect plates and cutlery from the bedside table in Ms Harrell’s bedroom, which Mr Nesland argues is consistent with his claim that they did not eat together. However, I accept Ms Harrell’s explanation that the plates were from her taking fruit and nuts into her bedroom to snack on in the evenings before she went to sleep.
The extent of the parties’ sexual relationship was very limited. Ms Harrell’s evidence is that they had sex on maybe only two or three occasions before Mr Nesland moved in with her, and then on only two or three occasions after he moved in with her. His evidence is that their sexual relationship was similarly limited. Each suggests that the other was not interested in pursuing a sexual relationship. It is not necessary to determine this issue given that irrespective of which account I accept, it is clear that the parties’ relationship was not one in which their sexual relationship was significant.
In 2001 Mr Nesland told Ms Harrell that he wished to purchase another yacht named (omitted). He needed bridging finance to purchase the yacht. The parties agreed that Ms Harrell give Mr Nesland the $110,000 she had in a bank account so that he could purchase a yacht without obtaining commercial finance. He told her that he needed bridging finance until he sold (omitted) and that he would repay her then. Mr Nesland sold (omitted), but he did not repay the money to Ms Harrell. Nor did Ms Harrell ask for the money back.
Later in 2001, the parties agreed to purchase a unit in Brisbane. Mr Nesland alleges that the idea to purchase the unit was his. He claims that he wanted to purchase a unit in Brisbane as he was travelling to Brisbane more often and wanted to make an investment in Brisbane. Ms Harrell asserts that the purchase of a unit in Brisbane was part of the parties’ long term investment and retirement strategy, although she agreed in cross-examination that they never actually talked directly about a retirement plan or strategy.
Ms Harrell did have family in Brisbane and no doubt the prospect of permanent accommodation here was attractive. I am also satisfied that Ms Harrell saw the purchase of the unit as a step towards her retirement. She would have a place to stay in Brisbane when that time came. I am satisfied that Ms Harrell probably discussed that with Mr Nesland, although to put it in terms of the parties having a “retirement strategy” or “plan” at that stage is putting the matter too highly.
The parties agree that they inspected and chose the unit they eventually purchased together. In (omitted) 2001 they settled the purchase of a home unit at Property H in Brisbane.
On Mr Nesland’s evidence he paid the deposit and the balance purchase price was financed by loan from the (omitted) Bank. He alleges that during the inspections Ms Harrell raised on a number of occasions the fact that she had advanced $110,000 to him for the purchase of (omitted). He claims that she said: “I don’t have any security and I would like to feel more secure”. He claims that he said “Would you feel more secure if I purchased the Property H unit in our names?” to which Ms Harrell allegedly replied “Yes, I would”.
Ms Harrell alleges that when (omitted) was sold she asked, “jokingly”: “Then can I have my $110,000 back?” to which Mr Nesland responded: “The moneys gone into the Property H Unit and that is in both names so that is where your moneys gone”.
There is no clear evidence before me about the timing of the purchase of the Property H Unit or the sale of the yacht (omitted). It seems tolerably clear, however, that the yacht was sold after the parties had purchased Property H. In those circumstances, it cannot be the case that Ms Harrell’s $110,000 was used as the deposit on that unit. Mr Nesland must have provided the deposit monies himself.
The parties agree that the balance of the purchase price was financed by a joint loan from the (omitted) Bank and secured by mortgage over the property. Title to the property was, and continues to be, held by the parties as joint tenants.
I reject Mr Nesland’s evidence that the purchase of the unit was his idea solely and that Ms Harrell’s name was placed on the title to the property as some form of security in respect of the $110,000 she had given to him to assist with the purchase of (omitted). There were other ways that Ms Harrell could be provided with security for her advance to Mr Nesland, the obvious one being the grant of a mortgage over the Property H unit instead of the registration of an ownership interest in that property.
Mr Nesland alleges that when the parties executed the relevant documentation for the purchase and provision of security over the Property H unit Ms Harrell told him both before and after the documents were signed that she liked the unit and “I am so pleased that it is going into my name with you as this gives me the security I was looking for.” I reject his evidence about that. In my view it is highly unlikely that Ms Harrell would have made such a statement given that it was the parties’ intention that they would purchase the unit together and the likelihood that Ms Harrell saw it as planning for retirement. I am satisfied that they intended, and in fact did become, joint owners of the property.
In about 2005, the parties purchased a property at Property G at (country omitted). That property consisted of a residential unit with an associated marina berth. Both Mr Nesland and Ms Harrell inspected the property prior to its purchase. The property was purchased in joint names and continues to be held in both names. It was purchased using jointly borrowed funds secured by mortgage over the property.
Ms Harrell says that the parties came to purchase the Property G property because during 2001 to 2005 she and Mr Nesland formulated an idea that they would share their retirement between Australia and (country omitted). In furtherance of that idea the parties purchased that property.
Mr Nesland denies what Ms Harrell says about that. He denies that he had any discussions with Ms Harrell regarding the parties’ retirement. He denies discussing sharing retirement together with Ms Harrell and he says that he did not discuss travelling between Australia and (country omitted) after their retirement. Mr Nesland says that the purchase of the Property G property came about because when he sold the yacht (omitted) it was at berth in (country omitted). When the yacht was sold he said to Ms Harrell: “(omitted) has been sold and the money that you put into that yacht is now available. Why don’t we purchase a unit as an investment in (country omitted)? I think they are a good investment”. He alleges that Ms Harrell said: “I agree. That seems like a good idea to me”.
I confess to considerable misgivings about this evidence.
First, according to Mr Nesland, at about this time he and Ms Harrell were flatmates and friends. According to his evidence (or at least part of it) they barely spoke to each other and when they did so it was only to argue. In those circumstances, it is difficult to accept that he would suggest that the parties embark upon a joint investment together.
Secondly, the property was purchased jointly by the parties. Mr Nesland, a (occupation omitted) of long standing, was cross-examined about the way in which the parties held their joint ownership in both the Brisbane and the (country omitted) properties. They were both held as joint tenants. Mr Nesland gave the surprising evidence that he had not turned his mind to the way in which the parties should structure their co-ownership.
I think it entirely more likely that Ms Harrell’s version of these events is correct. I find that the parties purchased the Property G property in furtherance of their loosely thought about retirement plans. They purchased that property using the proceeds of sale of (omitted) and jointly borrowed funds.
The mortgage for the Property G property was paid by renting out the property and the marina berth associated with it. Mr Nesland paid any costs associated with the property whilst Ms Harrell continued to provide the parties’ principal residence from her employment.
The parties continue to hold both the Property H unit and the Property G properties jointly.
In 2005 Mr Nesland purchased Ms Harrell a ring. I am satisfied that he purchased that for her as a token of their relationship as Ms Harrell suggests.
After the sale of (omitted), Mr Nesland purchased a motor boat named (omitted) on finance. It sank, was repaired and then sold.
On (omitted) 2005 Ms Harrell applied for a Resident Return Visa from the Department of Immigration and Multicultural and Indigenous Affairs (as it then was). In that letter, she said:
I write in support of my application for renewal of my Resident Return Visa…..
I will be retiring from my position here within 18 months and wish to return to Australia to take care of my aged father,…
Mr Nesland suggested that her correspondence was inconsistent with the parties having long term aspirations to retire together. I see no inconsistency, however. Ms Harrell’s evidence was that she had not discussed the suggested retirement and return to Australia to care for her father with Mr Nesland. When I asked her why she had not discussed that with her life partner, she had no answer save that this was the way she did things. Her evidence on this point was unimpressive and led me to think that her representations to the Department might have been tailored to ensure the success of her application.
Equally unimpressive were her answers concerning her responses to questions on the form of application for the renewal of her visa.
The application form required Ms Harrell to declare that the information in the application was: “complete, correct and up to date in every detail”. When dealing with her “marital status” on (omitted) 2005 Ms Harrell, having the choice to describe it as “de facto” or “divorced’’, chose “divorced’’. Her choice was inconsistent with what she now contends was the nature of her relationship with Mr Nesland. Her attempt to explain this by saying that she said that was the way she had always described her status ever since her divorce in the 1990’s was unimpressive. She refused to provide an answer to the question of why, if she truly thought she was in a de facto relationship in 2005, she did not “tick” the correct box. I agree with Mr Nesland's Counsel’s submission that my own attempts to extract an answer from her on that question were also without success.
Whatever Ms Harrell might have represented to the Department of Immigration, she did not retire and move to Australia within 18 months of (omitted) 2005. Instead, she continued to live and work in (country omitted). She continued her relationship with Mr Nesland.
In (omitted) 2007, Ms Harrell turned sixty years of age and to celebrate this event Mr Nesland organised a party for her at the (omitted) in Brisbane. He organised for various friends and family to be present. I accept Ms Harrell’s evidence that she and Mr Nesland travelled to Brisbane for the event and stayed together in the (omitted) Hotel. They shared one room at the (omitted) Hotel and did not each have separate rooms.
The usual morning visits by Mr Nesland to Ms Harrell’s bed ceased in 2008 according to Mr Nesland’s evidence, or late 2008/early 2009 according to Ms Harrell’s evidence. On either party’s evidence, those visits came to an end. By that time, Mr Nesland had commenced a sexual relationship with an employee from his office in (country omitted), Ms N.
Ms N gave evidence in the proceedings and was cross-examined. She said that she has been employed by Mr Nesland (or his company) at (business omitted) since (omitted) 2000. Initially she was employed as an (occupation omitted), however for several years she has carried out the duties of (omitted).
She confirmed that she has been involved in a relationship “of a personal nature, including sexual intimacy”, with Mr Nesland since 2007.
She has had personal contact with Ms Harrell on only a few occasions. One of those occasions was the (omitted) Christmas function in 2000. According to Ms N, (business omitted) held Christmas parties each year and she has attended them all since 2000. She gave evidence that she did not see Ms Harrell attend any of those Christmas functions with the exception of the function held in December, 2000.
Ms N gave evidence that the (business omitted) business hosted lunches, dinners and other functions for clients of the business. She said that she has attended all of those functions but that she did not ever see Ms Harrell attend any of those functions. She does not say whether Mr Nesland attended any of those functions, but I assume that he did.
Ms N gave evidence that she was in a de facto relationship with the father of her two children until 2007. A few months after her separation from the father of her children she observed that Mr Nesland had an interest in developing a personal relationship with her. She says that she said to him, “What is going on between you and Ms Harrell? I have no interest in developing a personal relationship with you, if you are involved with someone else. I have enough going on in my life as it is”. She says that Mr Nesland replied, “Ms Harrell is only a friend and we share a residence. I pay for our food. I have no personal relationship with her”.
Ms N says that after that conversation, she and Mr Nesland commenced a sexual relationship. The relationship has continued since then up to the time of trial.
Ms N says that she raised “many times” subsequently with Mr Nesland whether or not there was anything more to his relationship with Ms Harrell than them being friends or flatmates. He always reassured her that there was nothing going on and “believe me, it was over a long time ago. You are the only one I’m with” or “There is nothing going on, we’re just living together”‘. In a sense, that was of course correct given the lack of a sexual relationship between Mr Nesland and Ms Harrell.
Ms N and Mr Nesland have holidayed together, but the only specific occasions about which she gave evidence commenced from the New Year period in 2011/2012.
Mr Nesland purchased Ms N flowers regularly after 2007 and according to her evidence she generally received flowers and a card from him on Valentine’s Day each year. He also gave her presents from time to time, including Christmas presents.
The existence of Mr Nesland’s relationship with Ms N does not necessarily mean that his relationship with Ms Harrell ceased being a de facto relationship for the purposes of the Act. In circumstances where Mr Nesland and Ms Harrell’s relationship was not one built upon a sexual relationship, that Mr Nesland pursued a sexual relationship with another, whilst of some moment, is not determinative of the issue.
The commencement and maintenance of a sexual relationship with Ms N in 2007 does not lead me to conclude that:
a)The nature of the relationship as it then existed with Ms Harrell changed; or
b)The relationship that they then had, which I am satisfied was a de facto relationship for the purposes of the Act, finally broke down at that time.
Mr Nesland and Ms Harrell continued their relationship. They continued to live together and support each other with the provision of accommodation and shared expenses.
Mr R was a friend of both Mr Nesland and Ms Harrell. He also became a business contact of Mr Nesland and he and Mr Nesland had regular business dealings, talking on the telephone two or three times per week.
Mr R gave evidence that he attended at Mr Nesland and Ms Harrell’s home on a number of occasions during the years that he has known them. He gave evidence that Ms Harrell was, to his observation, fond of collecting knick-knacks and other items and he would sometimes joke with her by asking: “When are you going to clean this all out?” He says that Mr Nesland would laugh at his question.
Mr R observed that in the general living area of their (country omitted) apartment, Ms Harrell’s and Mr Nesland’s property was interspersed when he would visit. For example, he would often borrow DVDs from them to watch and there was only one collection of DVDs. I accept his evidence about those matters
During the course of the parties’ relationship Ms Harrell would cut Mr Nesland’s toenails. The parties agree that she would do so because Mr Nesland required some assistance as a result of an injury that he had sustained, but they disagree about the frequency. In any event, Ms Harrell would attend to that task for Mr Nesland from time to time. Despite Mr Nesland’s evidence that she ceased attending to that task in 2010, I am satisfied by Ms Harrell’s evidence that she ceased doing that in 2012.
From the time they started living together in (omitted) 1997 until Ms Harrell moved to Queensland in 2011, she cooked dinner for Mr Nesland and herself and if she was going away overnight or longer, she cooked and froze meals for him.
The parties undertook travel together, including trips to (country omitted) in (omitted) 2006, (omitted) 2007, and (omitted) 2008. Both agree that they travelled together to Australia as well.
Whilst in (country omitted), Mr Nesland and Ms Harrell appeared in public together. Mr Nesland was a member of the (omitted) Club and was a keen (hobby omitted). He and Ms Harrell would habitually go to the (omitted) Club for breakfast on Sundays.
Although Mr Nesland denies that Ms Harrell would attend various functions with him, I am satisfied by her evidence that they would attend together at social occasions, for example (omitted) Club presentation evenings, private birthday celebrations or sometimes company business functions. Mr R’s evidence confirmed that they attended (omitted) Club dinners together.
I accept Ms Harrell’s evidence that Mr Nesland and she would often introduce each other to people as “my partner” or “the other half”.
When the parties attended at the (omitted) Club for breakfast they would always arrive together in Mr Nesland’s motor vehicle, unless he was going into work immediately after breakfast, in which case they would travel in separate cars. They had a “usual table” at the (omitted) at which they would sit, often times with Mr R. Ms Harrell would always sit with her back to the water to avoid the glare. Mr Nesland would sit at the table at right angles to her. There was a buffet breakfast each Sunday and Ms Harrell would generally attend to getting the food for both she and Mr Nesland. Ms Harrell would fill Mr Nesland’s plate with food that Ms Harrell knew him to like and Ms Harrell would also get the beverages for both parties. Whilst she was doing that Mr Nesland would usually line up at the cashier and pay for the meal.
They would generally stay at breakfast for a few hours and socialise with various people including Mr R, Mr C, Ms V, Mr A, Mr J and Father Mr P.
When Mr Nesland owned (omitted) and later (omitted), the parties would often go sailing after breakfast, sometimes with friends and sometimes not.
Ms V gave evidence in these proceedings. She is a friend of Ms Harrell. In 1997 she moved to (country omitted) to be with her husband. She moved to Brisbane in (omitted) 2012 and now resides in Brisbane permanently.
Ms V’s husband Mr A was a good friend of Mr Nesland. They were active (hobby omitted) and they spent a lot of time at the (omitted) Club together. From 1997, Ms V would regularly see Ms Harrell and Mr Nesland together in the (omitted) Club. I accept Ms V’s evidence that when she first met Ms Harrell, Ms Harrell was introduced to her as “Mr Nesland’s wife”.
Ms V’s evidence confirms the evidence given by Ms Harrell about the parties’ regular breakfasts at the (omitted) Club. They always sat in the same arrangement. Ms Harrell would have her back to the (omitted) and Mr Nesland would sit at right angles to her.
Ms V gave evidence that through her discussions with other members of the (country omitted) expatriate community, Ms Harrell and Mr Nesland were commonly understood to be a married couple. In that regard people would refer to “Ms Harrell and Mr Nesland” and people would refer to Ms Harrell as “Mr Nesland’s wife” and refer to Mr Nesland as “Ms Harrell’s husband”.
Between 2002 and 2011 (when Ms Harrell left (country omitted)), Mr R also regularly had breakfast with Mr Nesland and Ms Harrell at the (omitted) Club. His evidence confirmed that of Ms Harrell’s about the way in which the breakfasts occurred. He gave evidence that they would share jokes together and discuss matters within their life together generally. He did not observe them to be extroverted in their affection for each other. For example they would not kiss and hug in public.
It is significant that they continued to socialise at breakfast at the (omitted) Club notwithstanding Mr Nesland’s relationship with Ms N.
Mr R, too, gave evidence that he observed it to be a shared perception throughout the (country omitted) expatriate community that Ms Harrell and Mr Nesland were a couple as they were often referred to in the plural as “Mr Nesland and Ms Harrell” or “Ms Harrell and Mr Nesland”. He saw that they were invited to events and functions together, not separately.
I find that Mr Nesland and Ms Harrell presented themselves generally as being in a relationship of de facto husband and wife. The evidence permits of a finding that they travelled together and when they met socially with others, they presented as a couple.
Mr B is Ms Harrell’s brother. His evidence satisfies me that Ms Harrell and Mr Nesland met with Mr B and his wife from time to time. When they did, Ms Harrell and Mr Nesland conducted themselves as if they were in an intimate relationship. Mr B consistently observed the following:
a)Mr Nesland would always pay for Ms Harrell’s meals when they were eating out or having coffee and often he would order on her behalf;
b)When dining out with Ms Harrell and Mr Nesland the bill was never split between them;
c)They would always sit together in close proximity in a manner consistent with them being a couple and their body language did not reflect any degree or hostility or distance between them;
d)They would touch each other in a manner which was familiar and appropriate to the touching of a married couple, for example a casual hand to the elbow or shoulder;
e)On occasions Mr Nesland would open the door for Ms Harrell or make way to let her through ahead of him.
f)Their level of eye contact was consistent with two people who felt affection for each other and in this regard was neither cursory nor abrupt.
I accept Mr B’s evidence.
Mr Nesland called evidence from Ms G. She swore that she first met Mr Nesland in 2007. She first met Ms Harrell at the (omitted) Club at a function in 2009. I note that Ms G’s evidence is at once inconsistent with Mr Nesland’s own evidence that he and Ms Harrell did not attend social functions together. Plainly they did.
Ms G says that she had come across Ms Harrell on a couple of other occasions but she had no significant conversation with her on those occasions.
At the (omitted) Club function, she recalls that she was sitting next to Ms Harrell who she had met minutes beforehand. Ms G says that Ms Harrell pointed towards where she observed Mr Nesland was standing. Ms Harrell said to Ms G, “I’m with him over there – that horrible man” or words to that effect. Ms G said, “Why are you with him?”. She said, “Because he is very rich. I am only with him for the money. We live in the same apartment but I don’t share a bedroom with him and I don’t have anything to do with him”.
This evidence was put to Ms Harrell when she was cross-examined. She did not recall saying those things to Ms G and she did not recall the meeting. Ms Harrell does not deny, however, that the words might have been said. She said: “I don’t deny that I said it”. Ms Harrell did say, however, that she often said “he’s a grumpy old bastard but he has plenty of money so I’ll keep him” and that she often referred to him as a “horrible old man - a grumpy old bugger” most of the time.
I accept Ms G’s evidence that the words that she reports were said and I accept her evidence that they were not said to her in a joking fashion or with a joking tone. The words spoken by Ms Harrell, however, do not indicate that there was no relationship, de facto or otherwise between she and Mr Nesland. On the contrary, they are consistent with this unusual relationship being in place.
I accept that from about 2009 onwards, Ms Harrell was actively considering retiring from her employment. Mr R gave evidence, which I accept, that in the last few years that he was in (country omitted), he was party to numerous conversations between Ms Harrell and Mr Nesland regarding retirement. His evidence confirmed that Ms Harrell was keen to retire and leave (country omitted). She told him that. Mr Nesland said to Mr R: “I want to stay and work in (country omitted) for a few more years”. He also said to Mr R: “Ms Harrell’s had enough”, meaning that she had had enough of living in (country omitted).
Ms Harrell’s daughter was married on (omitted) 2009. Ms Harrell and Mr Nesland attended the wedding. The wedding was held on the (omitted) in Queensland and Mr Nesland and Ms Harrell shared a hotel room at the (omitted) Hotel at (omitted) during the days leading up to and following the wedding. I accept Ms Harrell’s evidence that they did not book two hotel rooms, but only one. During the days leading up to the wedding they attended a number of family functions, particularly at a house that Ms J and her then fiancé Mr S had rented for the occasion. During the wedding ceremony Mr Nesland sat with Ms Harrell.
In 2009, Mr Nesland told Ms Harrell that he wished to go into business with Mr S. Mr Nesland had met Mr S on a number of occasions including family events, Christmas events and at Ms J’s wedding earlier in 2009. Initially they got on very well together.
The proposed business was a (business omitted) known as (business omitted). Mr Nesland was to purchase the business initially and then Mr S would pay off his “share” through commissions on sales.
The ownership structure for the business was described by Mr Nesland as follows:
A company named (omitted) Pty Ltd was created. This company was appointed the trustee of the Nesland Family Trust. That trust was also created. The Applicant and Ms Harrell have one share each in (omitted) Pty Ltd and we are both directors of that company. In addition, another company, (omitted) Pty Ltd was incorporated. This company is the trustee of the Nesland Unit Trust which was also created. The units in that trust were 65% held by the Nesland Family Trust and 35% held by the (omitted) Family Trust.
Curiously, Mr Nesland denies that “the parties” set up (omitted) Pty Ltd. He alleges that he did so without the involvement of Ms Harrell.
I say “curiously” because although Mr Nesland accepts that he did not give Ms Harrell any details of the business structure established to carry on (business omitted), he arranged for her to be both a director and shareholder, along with him, of (omitted) Pty Ltd. Ms Harrell’s evidence is that she executed some documents relating to the registration of (omitted) Pty Ltd at Mr Nesland’s request. She knew that both she and Mr Nesland were to be directors and shareholders of that company. She says, and I accept, that she trusted Mr Nesland in relation to the venture.
Again, these arrangements are very curious if the relationship between Mr Nesland and Ms Harrell was as described by Mr Nesland.
I accept that Mr Nesland told Ms Harrell that the business would be a “family business” and that he wanted to “keep the business within the family”.
Also in 2009 two other businesses, (business omitted) and (business omitted) were purchased for a combined sum of over $1,000,000.00. The businesses were rolled together into one new entity being (business omitted).
All of the businesses were purchased using finance to the sum of $720,000 from a commercial financier. The balance was provided through Mr Nesland’s business (business omitted) .
After the business (business omitted) commenced operation, Mr S worked as the general manager of that business. Ms Harrell’s daughter, Ms J, worked in the business. Another of Ms Harrell’s sons-in- law, Mr D, also worked in the business.
However, Mr Nesland fell into dispute with Mr S over a range of issues, including his operation of the business. He dismissed Ms J and engaged solicitors in relation to his issues with Mr S. Mr S engaged solicitors to represent him.
The difficulties between the parties and Mr S were seemingly ultimately resolved by Mr S transferring to Ms Harrell his interest in the business. It is unclear when this occurred. Mr S had exited the (omitted) business by May, 2011 and Ms Harrell had taken over his interest.
In or about February, 2010, Mr Nesland advised Ms Harrell “I have bought an investment property in (omitted)”. That was a reference to a property at Property J.
Ms Harrell says, and Mr Nesland agrees, that she was not involved in the decision to purchase that property or to set up a company (omitted) Pty Ltd, which owns the property. Mr Nesland’s evidence is that he caused (omitted) Pty Ltd to be incorporated for the purpose of the acquisition of that property. When that company was being incorporated, he asked Ms Harrell to agree to be a director of that company. She agreed. Mr Nesland gives no evidence as to why he thought that it was necessary for Ms Harrell to be a director of a company when on his case the purchase of the property had nothing to do with her or their future together. Mr Nesland is the only shareholder of that company.
Mr Nesland paid out the mortgage on the Property H property in May, 2010. He did not tell Ms Harrell he was doing so and she did not know that he had done so until investigations were made by her solicitors for the purposes of these proceedings. That is consistent with her understanding and the parties’ agreement that Mr Nesland would be responsible for the payment of the mortgage on that property.
In about May, 2011 the company which operated (omitted) Pty Ltd purchased a rent-roll for $484,383.90. The amount of $284,000 was borrowed from the (omitted) bank as a fully drawn term loan. That amount was secured over the Property H property and by way of personal guarantee, signed by Mr Nesland and Ms Harrell. The balance was paid out of the business reserves.
In 2010 to 2011 Ms Harrell attempted to retire from her employment in (country omitted) and on three separate occasions she tendered her resignation. On two occasions she was convinced to work a little longer while her employer sourced her replacement.
In May and June, 2011 Ms Harrell began spending two weeks in Brisbane per month and flying to (country omitted) for the other two weeks on a fly-in fly-out contract with her employer in (country omitted). Accordingly, from that time, Ms Harrell began spending more time in Brisbane and only flying to (country omitted) when required for her contract work. As Ms Harrell did not need to be in (country omitted) the whole time it was her preference to be in Brisbane spending time with her daughter Ms I and her grand-daughter.
In mid-2011, Ms Harrell finally resigned from her employment in (country omitted). But according to the evidence, there was no expressed intention by either party to end the relationship at that time and little was actually said. I accept that Ms Harrell said “I think I will go to Brisbane” and Mr Nesland said “all right”. It was of no surprise that Ms Harrell intended to live in Brisbane. Mr Nesland had signalled as much in his discussions with Mr R. Mr R swears:
In or about June 2011 Ms Harrell and Mr Nesland said to me words to the effect that “Ms Harrell is going to be moving to Brisbane to take charge of the business there “. I understood from that discussion that the plans were that Mr Nesland would remain in (country omitted) for several more years with a view to selling the (omitted) business and then moving to Brisbane. Mr Nesland told me words to the effect “I’ll go down to Brisbane to see her and sometimes she’ll come up here to see me.”
I accept his evidence.
I am satisfied that Mr Nesland told Mr R that Ms Harrell was “tired of living in (country omitted)” and that she would live in Brisbane and manage their interests in Brisbane while he managed the business in (country omitted). Mr Nesland told Mr R that he would commute back to Brisbane and Ms Harrell would visit him in (country omitted). Mr R swears that Mr Nesland said to him words to the effect:
I am setting up for Ms Harrell and I to retire to either Brisbane or our place in (country omitted).
I accept Mr R’s evidence.
Although the parties ceased to share a residence in (country omitted) in June, 2011 when Ms Harrell returned to Australia, Ms Harrell left many personal possessions back in (country omitted) in the parties’ apartment.
She began residing in the parties’ jointly owned unit at Property H, Brisbane. She paid for her day to day living expenses for about the first six months. Mr Nesland thereafter met her costs of the Property H unit by making the mortgage payments, paying for Foxtel, water charges, electricity and body corporate until May, 2012.
Mr Nesland purchased Ms Harrell a motor vehicle in April, 2009. She had the use of that vehicle. He met the initial insurance cost but she met all subsequent service costs, petrol and insurances until February, 2012. At that time she was given permission by Mr Nesland to use an (omitted) charge card for her fuel and Mr Nesland told Ms Harrell that the business would pay all the insurance costs.
Ms Harrell came to Australia with a view to retiring. However, she instead began attending the (omitted) business. Her involvement in the management of the business initially consisted of redecorating the office space, including purchasing new carpet. She was not permitted to spend any money in the business without permission from Mr Nesland.
I accept that she worked 7 days per week on occasions, but mostly 5 and-a-half days per week. She was otherwise there during most business hours. I accept that she was the only person working in the office on Saturdays on a regular basis.
Having regard to the evidence of Ms C, Ms O and Ms B, all employees of (business omitted), I suspect that Ms Harrell had an inflated view of what it was that she did at the office of (business omitted). Nonetheless, there is no dispute that she would attend the office on a full time basis between June, 2011 and May, 2012. I am satisfied that she thought she was playing an important role in that business.
I am circumspect about the evidence of Ms C, Ms O and Ms B generally. Cross-examination revealed their otherwise certain testimony less than certain. It also revealed the surprising nature of some of the testimony. For example, the evidence by Ms O, the licensee and office manager of the business, was concerning. She maintained that Ms Harrell started visiting the business on a daily basis from June, 2011 and that she did not know what Ms Harrell’s role in the office or business was. Notwithstanding that, she did not clarify this issue with Mr Nesland with whom she spoke on an almost daily basis. Mr Nesland’s evidence was that he told Ms O that he had not given Ms Harrell authority to go to the business. I accept Ms Harrell’s submissions that in those circumstances it is improbable that both Mr Nesland and Ms O would allow Ms Harrell to attend the business 5-and-a-half days a week for almost a year without taking some action to deny her access.
When Ms Harrell left (country omitted), Mr Nesland told her that he was moving to a smaller unit as he was now responsible for paying the rent himself and the unit leased by her former employer was too expensive for him. He asked Ms Nesland to return to (country omitted) to remove her belongings from the old unit. He subsequently sent her a return air ticket to (country omitted) so that she could do so. Ms Harrell moved both her belongings and Mr Nesland’s belongings. She moved Mr Nesland’s belongings to the unit in the same building complex and worked to prepare the unit for him. She also cooked his meals in the evening. He would watch TV whilst she continued moving goods and chattels. She sorted out her own belongings to be forwarded to Property H.
Between June, 2011 and May, 2012 Mr Nesland returned to Brisbane from (country omitted) on regular monthly occasions and on each of those occasions he stayed at the Property H unit. Sometimes Ms Harrell was away when he was there, but mostly she was there. He returned to Brisbane to assist with the (omitted) business. He kept some personal effects in the Property H unit in Brisbane until June, 2012.
I accept that when he was in Brisbane after June 2011, Mr Nesland would, on at least half the occasions travel to the office of (business omitted) with Ms Harrell. Sometimes they would leave separately but mostly they would leave together. Mr Nesland would organise a taxi to take him back to the Brisbane unit.
In the period from June, 2011 to May, 2012 Mr Nesland continued to maintain his bedroom in the Property H unit and continued to keep all his personal effects in the unit.
From the commencement of their relationship, the parties maintained separate bank accounts. Their income, from whatever source, was paid into their own separate banking accounts.
They would each meet some of their own personal expenses from their own income. However, I accept Ms Harrell’s evidence that they would share a number of expenses and pay for each other for various items from their separate accounts. She gave the example of occasions when the parties socialised at restaurants or the (omitted) club. She would also purchase food and other things for Mr Nesland when she was grocery shopping. She would pay for those items from her own income.
Initially Ms Harrell met the cost of all of the parties’ food from her income as well as many of the household expenses which included a landline phone. Mr Nesland would also contribute to various household expenses from time to time including house staff expenses. From about 2007, Mr Nesland began contributing his own income towards the purchase of food for the parties’ household.
Mr R gave evidence that approximately four or five years ago the superannuation fund for which he was working was considering purchasing (business omitted) from Mr Nesland. That purchase never eventuated, however Mr R had a number of preliminary discussions and conducted inspections of the books of the business as part of that proposal.
Mr R says that from inspecting the books of (business omitted), it came to his attention that there were two entities that conducted that business. One was called (business omitted). He could not recall the name of the other entity. I accept Mr R’s evidence that Mr Nesland explained to him that of the two entities, (business omitted) provided for the personal expenditure of Mr Nesland and Ms Harrell. The other entity provided for the expenditure of the business. Mr R recalls specifically querying one transaction in the accounts of (business omitted) asking: “What’s this figure here?”. Mr Nesland said to him, I accept: “I pay for the food bills for Ms Harrell and I out of this account.”
When travelling, Ms Harrell would pay for accommodation on any trips taken by the parties to Australia. Mr Nesland would pay for accommodation on any visits taken by the parties to (country omitted).
I accept that Mr Nesland would send Ms Harrell flowers every Valentine’s Day up to and including Valentine’s Day, 2012. He admitted to doing so in cross-examination. In 2012, Mr Nesland sent flowers to the office at (business omitted) where Ms Harrell was then working. Doing so is inconsistent with their relationship being one of friends and flatmates only. That is so, even if he only sent the flowers to her “to get her off my back”.
I accept Ms Harrell’s evidence that when there were gifts to be bought for family members such as on birthdays or at Christmas times, she would usually purchase the gift and she would write a card to attach to the gift and the card would be signed with words to the effect of “Love from Ms Harrell and Mr Nesland” or “Love from Mum and Mr Nesland”.
From early 2012, Mr Nesland and Ms Harrell agreed that the (omitted) business was sufficiently financial such that Ms Harrell could draw an amount sufficient to cover her day to day living expenses. She therefore drew from the business an amount in the vicinity of $589.00 gross, being $527.00 net which they calculated by reference to the minimum wage.
On 27 March, 2012 Ms Harrell sent an email to Mr G, a friend of hers. In that email she said:
“I own and manage an (omitted) office at (omitted) in Brisbane, as the partner and I are “just business” now and he has stayed in (country omitted)”
This email is significant because it is consistent with Mr Nesland’s case that the relationship was over at the very least by the time Ms Harrell came to Brisbane, if not well before that. On its face it demonstrates that Ms Harrell must have considered that the relationship had changed in nature to being ‘‘just business”.
The last time that Mr Nesland came to Brisbane was on the weekend of 19 and 20 May, 2012 and at that time Mr Nesland again stayed at the Property H unit. During that weekend, Mr Nesland gave Ms Harrell no indication at all that he was intending to end the relationship and continued to behave normally towards Ms Harrell over that time.
On 20 May, 2012 Mr Nesland was at the unit. The parties give differing accounts as to what occurred on that day and that evening. However, it is not necessary to determine which account of the events is true. What is clear is the next day Mr Nesland left Brisbane and returned to (country omitted). He sent to an email Ms Harrell that day in the following terms:
Ms Harrell
When in the apartment I feel like a prisoner who is from the target will move anything
The time is right for us to go our own ways this relationship was finished a long time ago
You complain about no invite when I go out with the staff, yet it is okay for you to go out with friends and not invite me it is a joke this not only happens in Brisbane but also (country omitted)
I will look after you I owe you that, you can use the apartment will keep paying a allowance which will be more than you getting now bearing in mind that I pay for foxtel, water, power, and bodycorp
I do not want you at the office and would like you gone by the end of this week
I am annoyed that you never charged Ms I and Mr D commission on the sale of their property and yet they still deducted $1000 of Ms H they are both idiots they just want to screw every one (business omitted) could have done with the money
you have money in your own right that’s fair enough but the amount of money you have spent on Mr D and Ms I is a joke when you should be keeping it for retirement
it almost as if it’s okay for Ms Harrell to spend money on Ms I and Mr D and then cry poverty to me
it looks like your whole family which includes Ms J and Mr S just want to spend my money
even if I wanted to I cannot sell (business omitted) which I don’t, until I recover close to $700,000 which Mr S and Ms J lost me through their bad management which I need to recover, in their time they lost 80 managed properties which if still there (business omitted) would be in a better cash positive position than we now
my clothes etc can be dropped at the office
Mr Nesland
(faithfully reproduced)
Ms Harrell replied by email. Her response is as follows:
I was told by Ms O , Ms H and Mr K not to charge them commission as it is called beneficial interest and is not charged to families of staff.
It would be the same if it was any of the girls families. Ms H agreed to the commission reduction as the house sold for less than she based her comms on when she listed.
I did not go out with friends, it was drinks for the (country omitted) who i teach english to for his birthday and was just the office people.
I only have a small amount aside as i spent over $6000 on the business when i first came here, then my teeth fell apart and i have to have winter clothes too. I also had the unit carpet and curtains cleaned when I first arrived, another $1000, and had to buy bedlinen, pillows, plates, etc. I have no problem with all that but I thought I was buying for two, in fact I just bought a new doona, pillowcases, towels and lamp for your room, another $500.
I bought Mr D a ute for work and he is repaying me and i bought a couch for the new house, big deal!
There’s no way you can blame me for what’s happened with Ms J and Mr S, you know it’s not my fault that he’s an idiot, i didn’t know him any better than you did and you were the one who decided to go into business with him.
It never occurred to me that we wouldn’t eventually get together again and spend time together in (country omitted) in our old age so I am very shocked and will need time to work out what to do.
I daresay finances will have to be sorted as i’ve signed lots of papers for you that will have to be removed.
Ms Harrell
The email from Mr Nesland was clearly intended to end whatever relationship then existed between Mr Nesland and Ms Harrell. The fact that he felt the need to send such an email suggests that the parties’ mutual understanding of the nature of their relationship was not clear to both of them. That is of really no surprise because on Mr Nesland’s own evidence, he had only ever had one discussion at the commencement of the relationship about the parties being “flatmates and friends”. I have found that conversation did not occur. The terms of the email bespeak a person who is explaining his decision to end something more than a business relationship. The reference in the email to the conduct of the parties’ personal lives and their interactions between themselves makes that clear. Read in that context, the statement that “this relationship was finished a long time ago” is a statement of conclusion arrived at with the benefit of hindsight – a characterisation of a perceived accumulation of events and circumstances that result in the opinion expressed by Mr Nesland.
Ms Harrell’s response is consistent with her understanding of an ongoing relationship. Mr Nesland argues that the statement: “It never occurred to me that we wouldn’t eventually get together again” when coupled with the lack of an express denial of Mr Nesland’s assertion that the relationship was over long ago, supports his claim that the parties de facto relationship had by that time ceased. Ms Harrell explains her response by suggesting that what she was referring to was the merger of the parties’ households.
Following receipt of the email Ms Harrell telephoned her brother, Mr B, and told him what had happened. Ms Harrell also telephoned her daughter Ms I and also told her that Mr Nesland and she had broken up. There evidence was that Ms Harrell was shocked and upset.
Soon afterwards, Ms Harrell took up with her solicitors. Correspondence ensued between Ms Harrell’s solicitors and Mr Nesland’s solicitors. It is significant that in that correspondence Mr Nesland did not suggest either that the parties did not have a de facto relationship or that the parties’ de facto relationship had ended before May, 2012. Indeed, the correspondence assumes that such a relationship existed and ended in 2012.
Some principles
Both parties referred to the proposition that a de facto relationship is necessarily different to a marriage relationship in terms of the Court’s ability to define when it begins and ends.
As Mr Nesland submits, that de facto relationships are very different to a marriage relationship and are "by nature fragile" was succinctly described by Dutney J (with whom McPherson and Williams JA agreed) in S & B [2005] 1 Qd R 537 where his Honour said at paragraph 33:
De facto relationships are by nature fragile. The robust institution of marriage survives until formally dissolved by legal process, even though the parties are no longer a couple and exhibit none of the observable indicia of a domestic arrangement. It has been recognised, however, that the persistence of those indicia are fundamental to the continuance of a de facto relationship. In Hibberson v George (1989) 12 Fam. L.R. 725 at 739–740 Mahoney JA, with whom Hope and McHugh JJA agreed, spoke of the de facto relationship as follows:
There is, of course, more to the relevant relationship than living in the same house. But there is, I think, a significant distinction between the relationship of marriage and the instant relationship. The relationship of marriage, being based in law, continues notwithstanding that all of the things for which it was created have ceased. Parties will live in the relationship of marriage notwithstanding that they are separated, without children, and without the exchange of the incidents which the relationship normally involves. The essence of the present relationship lies, not in law, but in a de facto situation. I do not mean by this that cohabitation is essential to its continuance: holidays and the like show this. But where one party determines not to 'live together' with the other and in that sense keeps apart, the relationship ceases, even though it be merely, as it was suggested in the present case, to enable the one party or the other to decide whether it should continue.
The onus is upon Ms Harrell to prove that "the positive aspects of the relationship" that demonstrate the de facto relationship, continued past 1 March, 2009 so that it could not be said that the relationship had finally broken down before that date. Dutney J (in S&B above) after stating that in marriage cases the party alleging separation bears the onus of establishing that separation had occurred, said at paragraph 50:
…the reverse applies in the case of a defacto relationship in the sense that the party asserting the continuing relationship must prove the positive aspects of the relationship rather than the party asserting separation being required to prove the negatives.
It appears to be the case that it is not necessary for either party to communicate with the other that the de facto relationship is over. In S & B, the Court of Appeal applied a passage from Mahoney J in Hibberson v George (above) in these terms:
... a de facto relationship ends when one party decides he or she no longer wishes to live in the required degree of mutuality with the other but to live apart. It does not seem to me that it is necessary to communicate this intention to the other party providing the party that is desirous of ending the relationship acts on his or her decision. I do not think it is necessary that the other party agree with or accept the decision. Once the parties cease to jointly wish to reside together in a genuine domestic relationship, a situation usually ascertained by looking objectively at the whole circumstances of the relationship, the de facto relationship ceases. The relationship ceases even though one party is still anxious to try to save it.
Conclusions
Ms Harrell and Mr Nesland were never married to each other. They are not related by family for the purposes of s.4AA(b) of the Act. I am satisfied that having regard to all the circumstances of their relationship they had a relationship as a couple living together on a genuine domestic basis commencing from when Mr Nesland moved into live with Ms Harrell at her apartment in (country omitted) in 1997.
Mr Nesland does not contend to the contrary. By his written submissions, he concedes that at its outset his relationship with Ms Nesland had the qualities necessary for it to be considered a de facto relationship for the purposes of the Act. That is in the context of his case that when the parties commenced cohabitation, they did so by occupying the same bedroom. I have accepted his evidence about that. I am satisfied that the parties’ relationship was a de facto relationship at the time they commenced living together in 1997.
The issue is whether that relationship finally ended before 1 March, 2009.
To the extent that Mr Nesland’s case relies upon conversations that he had with Ms Nesland when they ceased sharing a bedroom soon after they commenced living together, I have rejected his evidence that those conversations occurred. I am not satisfied that they occurred. I have accepted Ms Harrell’s evidence concerning how it was that the parties came to occupy separate bedrooms. I am not satisfied that the parties’ de facto relationship ended soon after it began in the circumstances described by Mr Nesland. Ms Harrell satisfies me that the relationship continued beyond the first few months of the parties’ cohabitation.
The parties’ relationship, in whatever form, spanned 1997 until May, 2012. Indeed, they have a continuing relationship as co-owners of property, but neither party now suggests that of itself is sufficient to constitute a de facto relationship for the purposes of the Act.
During 1997 until May, 2012, the parties did not, save for a very brief period of time at the commencement of the relationship, have a sexual relationship. Sexual intimacy was not a feature of their relationship although other forms of intimacy were. In that regard, as I have found above, the parties usually enjoyed close physical contact on the mornings that they were living in the same accommodation up to late 2008/2009.
I have set out above that the parties have shared a common residence until Ms Harrell moved to Brisbane upon her retirement in June, 2011. Thereafter, they continued to share a common residence when Mr Nesland came to Brisbane as he regularly did.
Mr Nesland argues that the parties were financially independent. But in my view, they were not. Ms Harrell provided the parties’ accommodation whilst she resided in (country omitted). For the most part, Mr Nesland met the parties’ household expenses such as groceries and staff costs. They each otherwise shared expenses from time to time. More than that, they intermingled their finances. Ms Harrell gave to Mr Nesland $110,000 to assist with the purchase a yacht. They embarked upon joint purchases of real estate in Brisbane and in (country omitted). They jointly borrowed funds to assist with the purchase of that real estate. Borrowed funds, for which each was responsible, were used to purchase and fund the operation of the (omitted) business. Mr Nesland met some of Ms Harrell’s obligations in terms of the mortgages. Other mortgage obligations were met from rental receipts. The borrowings for (business omitted) were repaid from the profits of that business, something that the parties were (ultimately given the way their interests were held) otherwise entitled to receive.
I am satisfied having regard to the findings I have made above that the parties were committed to a shared life. They made plans, albeit informally, for their retirement. They told their friends and in particular Mr R, about those plans. Ms Harrell shared those plans with her family. I am satisfied that they intended, once both Mr Nesland and Ms Harrell had retired, to live between Brisbane and (country omitted) where both Ms Harrell and Mr Nesland had family.
My findings are consistent with the public aspects of the parties’ relationship. In (country omitted) they appeared as a couple. They attended Sunday breakfasts together and other social activities. They attended important events in Ms Harrell’s family’s lives together. At least some Christmas Days were spent with Ms Harrell’s family in Australia, including Christmas 2008. They presented to Ms Harrell’s family as a couple.
I am, however, satisfied that the parties’ de facto relationship has broken down. It is difficult to pinpoint the date upon which the parties’ relationship finally broke down. I am satisfied that the commencement of a sexual relationship between Mr Nesland and Ms N did not bring the de facto relationship between Ms Harrell and Mr Nesland to an end. In fact, in my judgment, it had no effect upon it.
Nor am I satisfied that Ms Harrell’s move from (country omitted) to Brisbane in June, 2011 signalled the final breakdown of the parties’ de facto relationship. There can be no doubt, in my view, that her move to Brisbane changed the nature of their relationship in some respects. For example Mr Nesland was no longer able to utilise accommodation provided by Ms Harrell’s employer. Ms Harrell met some of her own expenses upon arrival in Brisbane. But Mr Nesland continued his financial support for Ms Harrell by ensuring that the expenses associated with the parties’ Property H unit were met. They continued their sharing of accommodation when Mr Nesland came to Brisbane and he sent her flowers on Valentine’s Day in 2012. They continued their joint ownership of property. They increased the extent to which they had joint financial and business interests.
The destruction of the parties’ de facto relationship no doubt took place over time. I think, so much is plain having regard to the emails that passed between Ms Harrell and Mr Nesland in May, 2012. However, in my view, it is more probable than not that the parties’ relationship ceased having the requisite character after Ms Harrell moved to Brisbane in June, 2011. Until that time, and notwithstanding the fragile nature of de facto relationships generally (at least from a legal point of view), the indicia of Ms Harrell and Mr Nesland’s particular de facto relationship, the relationship they created for themselves persisted until after Ms Harrell left (country omitted).
Having regard to the above findings I have made, I am not satisfied on the balance of probabilities that the parties’ de facto relationship finally broke down before 1 March, 2009. I am satisfied on the balance of probabilities that the parties’ de facto relationship finally broke down after 1 March, 2009.
I make the orders set out at the commencement of these reasons.
I certify that the preceding one hundred and seventy-three (173) paragraphs are a true copy of the reasons for judgment of Judge Jarrett
Date: 26 August 2014
Key Legal Topics
Areas of Law
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Family Law
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Statutory Interpretation
Legal Concepts
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Statutory Construction
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Jurisdiction
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