Horne & Innes (Deceased) (No 3)
[2024] FedCFamC2F 453
•12 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Horne & Innes (Deceased) (No 3) [2024] FedCFamC2F 453
File number(s): BRC 4864 of 2019 Judgment of: JUDGE WILLIS AM Date of judgment: 12 April 2024 Catchwords: FAMILY LAW – PROPERTY – question whether the parties were in a de facto relationship and if so whether the court considers it appropriate to make an order altering the property interests – where the de facto wife is deceased – where the application was not served on the de facto wife while she was alive – where the applicant was the respondent’s carer for a period – where evidence fails to satisfy onus necessary to establish that the applicant and respondent were in a couple who lived together on a genuine domestic basis – where even if there was a de facto relationship, no financial or non-financial contributions by the applicant that would warrant the Court making a property alteration order to the home already owned by the respondent prior to cohabitation - where orders for the ashes of the respondent and for the transfer of half interest of the respondents property to a non-party are considered vexatious Legislation: Evidence Act 1993 (Cth) s 140.
Family Law Act 1975 (Cth) ss 4AA, 79, 90RD, 90SF, 90SM
Cases cited: Aon Risk Services Australia v Australian National University [2009] HCA 27; 239 CLR 175
Bailey & Bailey (1987) FLC 91-083
Fisher & Fisher (1986) 161 CLR 438
Lynam v Director-General of Social Security (1983) 52 ALR 128
Randle & Randle [2014] FamCA 248
Sinclair and Whittaker (2013) FLC 93-551
Stanford v Stanford [2012] HCA 52
Thow and Hansen (Deceased) [2015] FamCA 1242
Vitzdamm-Jones v Vitzdamm-Jones (1981) FLC 91-012
Division: Division 2 Family Law Number of paragraphs: 191 Date of hearing: 3 and 4 April 2023 Place: Brisbane Solicitor for the Applicant: Self-represented Solicitor for the First Respondent: Deceased Counsel for the Second Respondent: Mr Kehoe Solicitor for the Second Respondent: DJ Hinton Solicitor for the Third Respondent: Self-represented ORDERS
BRC 4864 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR HORNE
Applicant
AND: MS INNES (DECEASED)
First Respondent
MS MERRITT
Second Respondent
MR BAXTER AS EXECUTOR OF THE ESTATE OF THE LATE MS INNES
Third Respondent
ORDER MADE BY:
JUDGE WILLIS AM
DATE OF ORDER:
12 APRIL 2024
THE COURT DECLARES THAT:
1.Pursuant to s 90RD (1) of the Family Law Act 1975 (Cth) (“the Act”) a de facto relationship as defined in 4AA of the Act, has never existed between the Applicant Mr Horne and the First Respondent Ms Innes (deceased).
THE COURT FURTHER ORDERS THAT:
2.The Fourth Amended Initiating Application filed by the Applicant (Mr Horne) on 24 December 2020 (and any other property alteration Orders or any other Orders sought filed by the Applicant in this matter) against the First Respondent Ms Innes, the Second Respondent Ms Merritt or the Third Respondent Mr Baxter is dismissed.
Removal of Caveat
3.The Applicant is to forthwith do all acts and things and sign all documents necessary to remove the Caveat No … (and any subsequent or earlier caveats placed on the property by the Applicant) registered in respect of the property at B Street, Suburb C in the State of Queensland particularly described as Lot … on RP … and Title Reference … (the Suburb C property).
4.The Applicant is responsible for any costs associated with the removal of any caveat placed by him on the Suburb C property.
Registrar to Sign.
5.In the event that the applicant fails to sign any document necessary to remove the caveat pursuant to Order 3 herein, within three (3) working days of being requested to do so, the Court authorises a Registrar of the Court to sign all such documents. An affidavit from the second respondent deposing to such failure will be sufficient evidence.
Referral.
6.The principal registrar of the Court is directed to forward a copy of this decision to the appropriate professional body in Queensland noting the reference in the decision as to the issue of the Applicant holding himself out as a professional in paragraphs 112 and 151 of the Judgment.
Costs applications.
7.In relation to the proposed application for costs pursuant to Section 117 of the Act by the second and third respondents, they are to prepare and file short form written submissions and a minute of Orders sought setting out the amount claimed for costs, indicating the respective scale and any other basis for the amount claimed (including costs agreements if applicable), by no later than 22 April 2024.
8.Mr Horne is to file and serve any written response to the application for costs by no later than 10 May 2024.
9.Thereafter, the matter will be decided on the papers in Chambers.
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 WILLIS AM
Mr Horne ("the applicant") purportedly first met Ms Innes at a party in 2014.
When Ms Innes met the applicant, she was already the owner of property at B Street, Suburb C (“the Suburb C property”). Ms Innes acquired the Suburb C property in her sole name mortgage free through funds she inherited from her late partner, Mr E, who had died a short time earlier in 2014 together with three superannuation accounts.
Mr Horne alleges that a few weeks after meeting Ms Innes he was invited to stay at her home to recover after he was discharged from hospital. Ms Merritt alleges that shortly into dating, the applicant had allegedly injured himself at the Suburb C property and couldn’t walk, Ms Innes felt sorry for the applicant and let him stay with her until he could walk again.[1] The applicant then refused to move out of Ms Innes' home saying he had no money to move and nowhere to go. Thereafter the applicant has taken up residence in Ms Innes home until he left in early 2019.
[1] Affidavit of Ms Merritt filed 16 March 2023, pg 5.
The applicant was born in 1956, he was 67 at the time of trial. He has told the Court throughout this litigation that he has no fixed address and is unemployed, as indicated on his Court documents. According to his financial statement the applicant has no real estate, property, savings or assets, save for some chattels.
Ms Innes was born in 1967 and was aged 51 at the time of her untimely death from an illness in 2019.
Ms Innes had been married twice previously and has three adult children, Ms F, Ms G and Mr H. It appears at the time of Ms Innes' death she was estranged from her children.
While the applicant was living in the home of Ms Innes, Ms Innes was diagnosed with an illness. Between 2017 and 2018 Ms Innes underwent aggressive treatment. According to the applicant, at the time of diagnosis Ms Innes was given a short time to live.[2] Ms Innes’ treatment required many medical appointments until she was eventually given the "all clear" from her doctor in 2018.
[2] Affidavit of Mr Horne filed 18 November 2020.
The illness unfortunately returned, and Ms Innes underwent her second round of treatment before she was eventually diagnosed as terminal. Ms Innes tragically died in 2019.
These proceedings were commenced by the applicant on 30 April 2019. The applicant decided he would not serve his application relying on what he referred to as the "12-month rule", in which he said:
As at 30/4/2019 [Ms Merritt] had no idea - That I had commenced proceedings in the FCC of Australia, because under Rule 6.17, I could hold off serving [Ms Innes] up to (1) year after filing and [Ms Merritt] did not have to be served, because at this stage, she was not part of my FCC Application.
Therefore - Because I exercised Rule 6.17- No FCC documents were ever filed or served upon me, prior to [Ms Innes] passing, because [Ms Innes] was never served and never knew I had filed my Application.
This assumption for time for service of an Application is not correct.
It is alleged by the applicant that prior to him moving out of the Suburb C property, Ms Innes offered the applicant her house with cash if he left the property by 10am that day (early 2019). The applicant has annexed a handwritten note allegedly written by Ms Innes in regard to what the applicant refers to as “Ms Innes’ offer” in his affidavit filed on 16 July 2019.
The applicant has amended the nature of his application numerous times, but he has been steadfast in seeking to have “Ms Innes’ offer” enforced, being that he either receives all of Ms Innes’ interest in the Suburb C property (including Ordering Ms Innes to leave the Suburb C property to him in her will), or one half of the Suburb C property be transferred to him.
It appears that if the Court is to accept Ms Innes made the alleged offer, it should be considered in the context in which it is written, at a time when Ms Innes was terminally ill, it is couched in terms to achieve the purpose of having the applicant get out of the Suburb C property, which he had been refusing to do.[3] Thereafter he was not permitted to return despite his various attempts to do so.
[3] I have no satisfactory evidence of the origins, author or authenticity of this handwritten “offer”, which the applicant seemed to have walked away with. See also paragraph 38 of the Affidavit of Ms Merritt filed 16 March 2023.
The applicant also seeks his belongings from the Suburb C property be returned to him, that he live in the Suburb C property permanently, that he be given a portion of Ms Innes ashes to pass on to her father and that he be granted a default judgment.[4]
[4] Fourth Amended Initiating Application filed 18 March 2021.
Although Ms Innes is deceased, the Court has evidence of text messages exchanged between Ms Innes and her friends and the applicant and second respondent which form part of the evidence in the Affidavit of Ms Merritt filed 4 August 2020, as well as the evidence of Ms Merritt. Further, prior to her death, Ms Innes gave detailed instructions to her solicitor, Mr Baxter, at various stages about her property and relationship status which forms part of the comprehensive affidavit of Mr Baxter the Trustee of her estate filed early 2021.
Mr Baxter is participating as the legal personal representative for Ms Innes, and he is the executor of her estate. Mr Baxter is also the third respondent in these proceedings ("Mr Baxter" or "third respondent") having been joined by the applicant. Mr Baxter took detailed comprehensive instructions from Ms Innes in relation to her will and estate planning prior to her death.
The second respondent is Ms Merritt or "second respondent") a close long-term friend of Ms Innes, whose husband Mr J was good friends with Mr E (now deceased, but who was the former partner of Ms Innes until his death). It is clear from the evidence that both Mr J and Ms Merritt provided support to Ms Innes in a variety of ways, including financial, emotional and physical, particularly during both medical treatments, as set out in the affidavit of Ms Merritt. This level of support was in line with the promise that Ms Merritt and her husband made to Mr E just prior to Mr E’s death. Ms Merritt explained in her affidavit the week [Mr E] died he had called [Mr J] saying he knew he was not going to last the week and asked us to promise we would look after [Ms Innes]. I kept that promise.[5] Prior to Ms Innes’ death, Ms Innes transferred the title of the Suburb C property held in her sole name into a joint tenancy with her supportive friend, Ms Merritt. Once Ms Innes died, Ms Merritt received the Suburb C property through survivorship.
[5] Affidavit of Ms Merritt filed 16 March 2023, para 6.
Any reference in this judgment as to comments or views expressed by Ms Innes (now deceased) as to the nature of her relationship with the applicant, or her experiences with him, is drawn from the evidence contained in her instructions provided in the evidence of Mr Baxter or direct comments and responses as seen in Ms Innes’ text messages as contained in her evidence, or as observed by Ms Merritt and is taken directly from that material.
For the reasons which follow, I propose to make a declaration that no de facto relationship existed between the applicant and Ms Innes. Further, that the application to set aside the transaction wherein Ms Innes left the Suburb C property to Ms Merritt be dismissed and further that the application for property settlement filed by the applicant is dismissed.
PROCEDURAL MATTERS.
The applicant has been seeking ever changing Orders since he first filed in this Court. Since filing his first application, the Applicant has proceeded to file an amended application, second amended, third amended and then fourth amended initiating application. The applicant said when he first filed on 30 April 2019 Ms Innes was suffering and dying from an illness so he deliberately made the choice not to serve Ms Innes with his application as he did not want to upset her at that time. Ms Innes had a serious illness. The applicant said of his decision to initiate his application it hurt me but I filed - I was upset for weeks. As I have said, Ms Innes died in 2019.
Request for default hearing
The applicant seems to have a pre-occupation with the Court Rules. As a non-lawyer and on his own evidence, someone who has done “two or three subjects at university years ago”, he adopts a strict interpretation of the Rules when it suits him to do so. The applicant submits that because the second respondent failed to file a response within 28 days of service that the applicant’s own application should be heard as a default hearing and clearly, he believes he should be successful with all of his orders sought. This application for a default hearing was made by the applicant at the second return date and was refused. The judge hearing the matter noted that in response to the applicant’s requests for a default hearing, that if the second respondent did not file her material by the end of June 2020, that the court may give consideration to a default hearing at the subsequent Court date in August.
The second respondent filed her response material on 4 August 2020.
In her affidavit the second respondent explained that:
I am late filing my response. I emailed the Court checking I was registered to receive my files. I logged in regularly and checked for my Orders. They are still not visible on the portal. I was called by [Ms K] [in mid] 2020 asking if I had filed my response. Prior to that I had no knowledge of the Order. It is not my intention to prolong this or not provide what is required.
There had been no formal Orders made in the first Orders on 15 November 2019 requiring the second respondent to file a response as she was not yet joined. The applicant’s request for a default hearing was therefore extremely premature and procedurally unjust.
That reference to a “default hearing” has been misquoted by the applicant throughout this litigation. He has continually said the Court was going to have a default hearing and he now wishes to have that default hearing, because the second respondent did not file her material on time. At the hearing on 30 August 2020, the applicant had only filed his second amended initiating application and second affidavit upon the second respondent the night prior to the hearing on 29 August 2020. Again, any request for a “default hearing” was without foundation and unjust.
The applicant now wrongly tells the Court that there was an “Order of the Court” that the matter was to be listed for a default hearing. At the interim hearing[6] and many times since, the Court has explained to the applicant that the parties are all represented and that there will be no "default hearing". The applicant raised this possibility again even during the final hearing.
[6] See the interim published Judgment.
Meanwhile, the applicant has shown no regard himself to complying with Orders for financial disclosure in any way nor has he observed the issues of procedural fairness. The applicant has stated in his affidavits that he will not be producing all of his evidence until the trial, seemingly believing the trials are conducted on the basis of ambush.
The applicant has further failed to comply with very specific Orders regarding disclosure as Ordered by a Senior Judicial Registrar on 2 November 2020. The applicant filed an affidavit in response to those orders on 18 November 2020 stating that the orders are not applicable to his situation and only the Respondents are required to provide disclosure. The applicant further failed to comply with the trial directions made on 15 September 2022 requiring him to file all of the evidence he intends to rely upon, in particular the filing of Affidavits of witnesses he intends to call.
Service of documents
The applicant has maintained that he has "no fixed address" throughout these proceedings. He has described himself as homeless. He refers only to a PO Box. The applicant has refused to acknowledge emails sent to him by the other parties, boldly insisting and issuing directions that whilst he received the emails, he must be served with all documents and correspondence by sending documents to his PO Box otherwise he does not consider himself served. This is despite the other parties specifically advising him that his email address is on the Notice of Address for Service (as provided for in the Rules) and that he corresponds with the other parties via email when he wants to do so.
When the applicant wishes to correspond with the Court or other parties, he does so by email as seen throughout this litigation. At these times he does not have the problems with the “internet being unreliable” to send or receive emails, as routinely alleged by the applicant. An example of this is when the applicant sent an email to the Court the day prior to the trial, seeking an adjournment. During this application for an adjournment of the trial Mr Horne submitted to the Court I outlined the reasons in two emails to your associate. This is one of many examples of the applicant relying on his capacity to send and receive emails when he wants to communicate with the Court and the other parties, but nonetheless refusing to acknowledge that he received letters and documents by email from the other parties.
The trial adjournment request
In relation to the applicant’s application to adjourn the trial on the morning of the trial, the Court advised Mr Horne that he would need to appear to make his application for an adjournment at the trial, that this request could not be dealt with by an email.
The Court file shows that at a Court event, some seven months prior to the trial on 15 September 2022 that the trial was listed to occur on 3 and 4 April 2023.
On the morning of trial, the applicant told the Court that:
I had intended to have a meeting with a principal lawyer that I've been using prior to me even filing on 30 April 2019 and that meeting did not go ahead. So I met with my principal lawyer and part of my legal team on 22 March 2023.
At that meeting the applicant says his principal lawyer told him that statutory declarations would not stand up at trial and, therefore, all of my statutory declarations that I’ve been collating since 4 December 2020 would need to be changed in a different format to affidavit format.[7] The applicant said as soon as he was notified of that, he advised the other lawyers that I don't have sufficient time and that I could not proceed for the planned trial today or tomorrow.[8]
[7] Transcript of proceedings (3 April 2023), p 7.
[8] Ibid.
Mr Horne also advised the court that his legal team (who are not on the record and who have never appeared on his behalf or identified themselves, nor been identified by the applicant) were not available on the trial date and therefore he needed an adjournment to accommodate his principal solicitor's availability. The applicant submitted that my principal lawyers could not attend court today or tomorrow[9] and that he is in the Court room area now on a five day trial.[10] This principal solicitor is, according to the applicant, the same lawyer he had legal advice from prior to even filing some four years ago.
[9] Ibid.
[10] Ibid, p 8.
Mr Horne also told the Court on the first day of trial that he was not aware of the trial directions. The applicant said he was not present when the Orders of 15 September 2022 were made. This was the date that the Court delivered the outcome of the cost’s applications against the applicant in relation to his wholly unsuccessful interim applications. The applicant submitted to the Court at the trial that the Orders of the Court were not sent to his PO Box and therefore he had not been informed of the trial.
Although the applicant did not appear at the Court hearing when judgment was made in relation to the costs application against himself on 22 September 2022, the applicant did then subsequently appear on the next Court date of 24 January 2023. In the presence of all the parties, the Court reminded the parties (and included in the Order of that date through a notation) that the trial dates of 3 and 4 April 2023 remain as listed.
The applicant also filed a Response to an Application in a Case on 19 January 2023, which proposed Order 3 notably states That the planned trial dates of 3 and 4 April 2023 be stayed to permit Respondent 1 ([Mr Horne]) first option to negotiate the purchase of [B Street, Suburb C].
Further, again on 21 March 2023 the applicant was present at the hearing of the security for costs application against him. This application was filed in the shadow of the final trial looming and the trial dates were the topic of discussion. At that hearing, the applicant welcomed the opportunity to have time to get together the required amount of costs and in so doing sought an adjournment of the trial. Ultimately the Court determined that whilst there was valid reason for bringing such an application, there was no evidence that the applicant had any money and that the end result would be that the litigation would be left in limbo indefinitely. The trial dates were discussed and referred to during that hearing.
In terms of the applicant allegedly not knowing the trial dates, the Court emailed the parties including the applicant, to conduct a compliance check on the 27 March 2023 and the trial dates were included again on the correspondence. Furthermore, the Orders of the Court have always been available on the Commonwealth Court portal.
Through all of these events and processes, I am satisfied that the applicant was well aware of the trial dates.
However, any lingering doubt is dealt with through the steps taken by the solicitor for the second respondent, Mr Hinton, as seen in his affidavit filed on 2 April 2023. Mr Hinton sets out the steps he had carefully taken to inform the applicant on no less than three occasions, (20 September 2022; 29 September 2022 and 15 December 2023) of the trial dates. Mr Hinton explained that on 20 September 2022 he caused a copy of the Orders made on 15 September 2022 and a letter informing the applicant of the outcome of the hearing and trial dates to be sent via email and registered post to the applicant. On 28 September 2022 Mr Hinton caused a letter to be sent to the applicant enclosing a copy of the interim judgment made 15 September 2022 via email and registered post (the post was sent on 29 September 2022). On 15 December 2022 Mr Hinton further caused a letter to be sent to the applicant via email and registered post enclosing among other things a further letter referring to the trial dates of 3 and 4 April 2023. Copies of the receipts for the three separate registered post items (which were all emailed as well) were enclosed in Mr Hinton's affidavit.
Mr Horne's immediate response to the Court in light of this sworn evidence from the solicitor on the record for the second respondent, was to quickly just shrug it off saying that he only signed for one of three registered post items and that:
The previous two, that's not my signature. There's two different signatures. People collected the mail for me, and I was still out at [Town L], so I never saw those documents. I didn't even know they were in my mail. I asked people to collect my mail. I was in no position to read the documents because I was seven hours away out at [Town L] and [Town M], so even though Mr Kehoe has identified two signatures prior to 25 January 2023, those signatures are not mine, and I had no idea that the mail was signed by two other people.
I find this allegation of the applicant that he did not receive or sign for the registered post sent by solicitors for the second respondent, that other persons have had authority to sign for him, but he does not know who, and did not get his own registered mail, to be a matter completely within his own control and of his own doing.
Even in his own explanation to the Court on the morning of trial about his delay in being ready for the trial, the applicant explained that there are a number of reasons and the reasons mainly are that I was prepared and for the last period of time, six months, to go to trial and I had been collating a number of statutory declarations and affidavits and witnesses to be cross-examined at a trial.[11]
[11] Transcript of proceedings (3 April 2023), p 7.
The adjournment was refused for all of the reasons given on the day including my reference and consideration of the issues which arise from the High Court case Aon Risk Services Australia v Australian National University[12] and noting the applicant only consulted his solicitors nine working days before the trial in circumstances where the trial had been listed in September 2022.
[12] [2009] HCA 27; 239 CLR 175.
There is nothing further that the Court or the second respondent could have done to alert the applicant that his trial date was on 3 and 4 April 2023. And of course, his application for an adjournment pre-supposes that he knew when the trial was on.
Further, in the applicant's application for an adjournment, he submitted that he did not have a chance to file his trial material though he did file an affidavit on 6 March 2023. The applicant then went on to complain that it was unfair that he could only rely on his trial affidavit in accordance with the trial directions. The court then accommodated his concerns by granting the applicant leave to rely upon all his affidavits. The other parties did not oppose this course. Mr Horne has been very active filing affidavits which he says he does to "keep the court up to date". This is despite the Court telling him that it is not necessary do so. Mr Horne filed around 11 affidavits, though had none of them in court with him at the trial. He told the Court he thought he was just popping in to get the adjournment. The Court printed out copies of all of Mr Horne affidavits for him.
The Statutory Declarations
As can be seen during the trial, the applicant submitted that he would also want to call five witnesses for whom there were no affidavits, but for whom he had old statutory declarations. He did happen to bring those with him to court.
The court advised the applicant that if each of the witnesses whom he had prepared statutory declarations for were available to be cross-examined, then his request to have those witnesses appear would be considered. Most of the statutory declarations were dated December 2020 so the applicant had years to prepare an affidavit. Nonetheless he was given overnight to make arrangements and confirm that the proposed witnesses were available to be called, sworn in and cross-examined. The next morning the applicant said he could only organise one of his witnesses, Mr N, who had prepared a statutory declaration to give evidence at the trial. There was no objection to that one witness swearing to the truth of his document which was titled an affidavit, but which was not on any court form.
The other statutory declarations were by persons who were not available. The applicant said that one is in hospital. One is in New South Wales, and elderly. The other three are in Brisbane and [Region O].[13]
[13] Transcript of proceedings (3 April 2023) p 66.
One of the alleged statutory declarations was prepared by Mr P dated 7 December 2020. The applicant said Mr P was a Justice of the Peace ("JP"). That "statutory declaration" seemed to consist of a photocopy of a handwritten letter which had been authorised by Mr P himself as a true copy. The applicant said of this action by Mr P He stamped it. He hasn't - when I say he stamped it, that's actually wrong. He has been a JP for that long they never had stamps in his day. I asked the applicant How can he authorise his own documents? Mr Horne said Well that's what he did your Honour. I can't I'm not questioning him. I am not questioning anything. He's a JP. That's what he decided to do.[14]
[14] Ibid, p 84.
At the conclusion of day one and after the applicant had concluded his cross-examination of the second respondent and heard her answers, the applicant submitted that in addition to the four or five witnesses he had referred to, he now wished to have other witnesses put on the stand and be classed as his witnesses. This request was declined. All of the evidence should have been made available by way of affidavit and filed 28 days earlier (he was ordered to file all of his evidence on 15 September 2022). This request was also far too late in the hearing and was effectively the applicant seeking to bolster his own case after cross-examination of the second respondent. This was contrary to the trial directions and all procedural fairness considerations.
At the commencement of day two of the trial Mr Horne then said he would like to cross-examine someone that was sitting in the gallery and had been since the beginning of the trial. The person the applicant pointed to was the husband of the second respondent, Mr J. That request was declined as there had been no evidence in chief of any kind from this person, nor had any notice or process been put in place prior to the trial to have that person give evidence. The Court advised the applicant that the trial was not conducted on the basis that he could just point to a person sitting in the gallery and say that he wish to cross-examine them.
ORDERS SOUGHT BY THE APPLICANT
The application.
As discussed previously, the application filed by Mr Horne in 2019, weeks prior to the death of Ms Innes when she was in palliative care, sought orders in line with his intention to seek to have what he refers to as “her agreement to give me her house” enforced through Court orders.
At that stage in the proceedings the applicant and Ms Innes were the only parties.
It is useful to understand the nature of the unfolding Orders sought by the applicant. The first application sought the following orders:
(1)that [Ms Innes], while living, transfer a 50% ownership of the property at [B Street, Suburb C] Queensland to the applicant, as joint owners, as discussed and agreed between the applicant and [Ms Innes].
(2)that the applicant make a will specifying that upon his death, ownership of the property at [Suburb C] be left in equal shares to [Ms Q] and [Mr H], as discussed and agreed between the applicant and respondent.
(3)that all tools equipment building materials and general items remain in both the [Ms Q] containers at [Suburb C] until an amicable decision is made between both parties regarding the future of their contents.
(4)that [Ms Innes] leave to the applicant through her "final will and testament" cash from her (3) superannuation accounts, as discussed and agreed between the applicant and [Ms Innes].
The applicant's position has kept evolving during this litigation. It can be seen that in the first application he wished to have this Court make an Order forcing Ms Innes to make out her own will, according to the direction of the applicant. At the time of filing the amended application half of the Suburb C property had been transferred to Ms Merritt. The applicant sought to have this transfer revoked and for him to be listed as a joint tenant on the title.
Once the applicant realized that the Suburb C property had transferred into the sole name of Ms Merritt, the applicant filed a second amended application filed on 18 October 2019 seeking to set aside the transaction transferring the Suburb C property into a joint tenancy to the second respondent (being the joint tenant in line with the desire and legal instructions of Ms Innes prior to her death). The applicant also sought a declaration the Suburb C property is held on trust for the applicant and Ms Innes’ children, Mr H and Ms Q. He also sought Orders to have Ms Innes’s ashes (a portion of) given to him.
By the third amended application the applicant seeks to retain a 100% interest in the Suburb C property, for him to live in the property permanently and that he be granted a default hearing. The applicant moved away from personally receiving Ms Innes’s ashes, to seeking her father to receive a portion of her ashes. The last (Fourth) Amended Initiating Application mirrored the third amended application, save for an additional interim order for Mr Baxter to return his personal items.
In the applicant’s final submissions at the conclusion of the trial, having heard the submissions of the second and third respondents, the applicant seemed to move away from receiving the entire Suburb C property (or half), the house to being a "happy man" if Ms Innes's son Mr H was added on title with Ms Merritt. The applicant submitted:
I would love the opportunity of someone to say, "Well, listen, would it be feasible that [Mr H]’s name become on title with [Ms Merritt]?" If that occurred, I would be as happy as anything, and all I would want is my personal items back. I am not here to benefit in any capacity to achieve or attain [Ms Innes]' house in any way. I'm not here to gain any money in any way from [Ms Innes]' estate.
I would like just my contributions of money back one day if that's possible… And I would just like my personal items back.
So I'm here to try and obtain or receive my personal items back and maybe some funds for the electrical in the house.
In terms of the applicant’s applications alleging that he will give the Suburb C property to Ms Innes’ son and daughter, or his submissions and final position that he had a special understanding of Ms Innes’s son, and he believed that the Court should make an Order for the title of the Suburb C property to be changed into the name of Ms Innes’s son as a joint tenant with the second respondent. These Orders sought and submissions are entirely at odds with the contemporaneous text messages attached to the affidavit of Ms Merritt. In a text message Ms Innes’ sent to Ms Merritt, she says I just told my mate that he isn’t getting the house… He actually gets narky and says “oh go on leave the house to your drug fucked son” which really hurts.[15]
[15] Affidavit of Ms Merritt filed 29 July 2020, pg 45.
The applicant has consistently sought interim orders for the return of his items at the Suburb C property among other things. As I have explained elsewhere in this judgment, all of the interim applications were unsuccessful given that the issue of the Court having any jurisdiction to make such Orders had not yet been determined.[16] No amount of explanations as to the core issue regarding jurisdiction raised by the other parties and the Court could dissuade the applicant from pressing on with his interim applications. The applicant was wholly unsuccessful in seeking a range of interim orders. Costs Orders ordering the applicant to pay the costs of the other parties were made, which at the time of trial remain unpaid.
[16] As set out in the interim Judgment.
The second and third respondent.
The position of Ms Merritt in her orders sought at the conclusion of the trial was a summary dismissal of the applicant's application on the grounds that there was simply insufficient evidence produced by the applicant to satisfy the court that a de facto relationship existed between the applicant and Ms Innes and that there was no reasonable likelihood of success of the orders being sought in the amended initiating application.
In the alternate the second respondent sought Orders for a declaration a de facto relationship never existed; and in the alternative a declaration that it is not just and equitable to make an order under section 90SM; and in the alternative the Amended Initiating Application be dismissed. The second respondent submitted the application was frivolous and vexatious.
The third respondent supported the orders sought by the second respondent.
THE LAW.
I have had regard to the decision of Fisher & Fisher (1986) 161 CLR 438 where the High Court considered the validity of section 79(8) (de facto equivalent 90SM(8)) and whether this Court has jurisdiction to entertain proceedings arising out of a de facto relationship when one of the parties to the proceedings dies after those proceedings have been initiated but before they have been concluded. Gibbs CJ with whom Wilson J agreed said at 448 as follows:
It is true that s 79(8) provides for the creation of anew proprietary rights after a marriage has been terminated by death. However, those rights may be created only if proceedings with respect to the property of the parties to the marriage or either of them had been commenced whilst the marriage was subsisting and only if the proceedings are continued by or against the legal personal representative of the deceased spouse. (emphasis added)
In Bailey & Bailey (1987) FLC 91-083 Nygh J referred to the abovementioned judgment and the decision of the High Court in Vitzdamm-Jones v Vitzdamm-Jones (1981) FLC 91-012 pointed out that in circumstances where but for the provisions of s 79(8), proceedings would abate upon the death of a party to those proceedings it “makes it essential that the procedure laid down by subsection (8) by way of exception to that general and fundamental principal be followed. That provides that the proceedings may be continued against the legal personal representative of the deceased party and following the provisions in relation to substitution of the legal personal representative as a party to the proceedings. As Nygh J observed in Bailey & Bailey (supra) in the context of the appointment of an administrator ad litem, the estate of a deceased party has no legal personality other than through the legal personal representative. In those circumstances absent the substitution of the deceased party’s legal personal representative there is no person or legal entity against whom any orders may be enforced.
I have also had regard to the decision of Thow and Hansen (Deceased) [2015] FamCA 1242 a single judge decision of Justice McMillan which has reference also to a decision of Justice Benjamin in Randle & Randle [2014] FamCA 248 wherein his Honour explained that the Court can make final property orders not withstanding a personal legal representative has not been substituted for the deceased party. His Honour Justice Benjamin said at paragraph 99 of his judgment, referring to section 79(8) (a) which provides a discretion to continue property proceedings in circumstances where a plaintiff dies and to appoint, in a discretionary way, a legal personal representative. That term is not defined under the Act. There is no overt interaction between ss (a) and ss (b) of s 79 (8). In that case after the trial had been heard and reasons delivered, and after His Honour had outlined the structure of the Orders required, and then stood over for a few days, the husband died three days before the final mention of the matter prior to the making of the proposed Orders. His Honour therefore subsequently made Orders binding upon the parties, their legal personal representatives, including any executor/s, administrators/s and/or assigns of one of other of the parties.
In this matter, lawyer Mr Baxter prepared the will of Ms Innes, took extensive instructions about her past and the nature of the financial arrangements she wished to make regarding her own estate and her will. Mr Baxter was served by Order of the Court and also became the third respondent. Mr Baxter is the Executor of the Estate of the first respondent and therefore Mr Baxter is properly identified as the legal personal representative of Ms Innes.
The applicant alleges through his various affidavits that he was in a de facto relationship with Ms Innes. Before the Court can exercise its power to issue an Order altering property interests, it must be satisfied and declare that a de facto relationship existed pursuant to s 90RD(1) of the Act.
Pursuant to s 90RD(1), if an application is made for alteration of property interests under s 90SM, following the breakdown of a de facto relationship: the Court may for the purpose of those proceedings, declare that a de facto relationship existed, or never existed. Section 90RD(2) makes reference to the issues about which a declaration can be made and that includes the period or periods of the de facto relationship, and whether one party made substantial contribution of a kind mentioned in 90SM(4)(a), (b) or (c) and when the de facto relationship ended.
In terms of the definition of a de facto relationship, s 4AA(1) provides three requirements. First the persons must not be legally married to each other, secondly the persons must not be related by family and finally, a person will be in a de facto relationship with another if having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
In working out if persons have a relationship as a couple, the circumstances referred to in s 4AA(1) may include all or any of the following matters set out in s 4AA(2) which are:
(a)the duration of the relationship;
(b)the nature and extent of their common residence;
(c)whether a sexual relationship exists;
(d)The degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e)the ownership, use and acquisition of their property;
(f)the degree of mutual commitment to a shared life;
(g)whether the relationship was registered under a prescribed law of a State as a prescribed kind of relationship;
(h)the care and support of children;
(i)the reputation and public aspects of the relationship.
In Sinclair and Whittaker (2013) FLC 93-551 the Full Court stated that given the nature of the definition of a de facto relationship in the Act, the ultimate decision as to whether there is a de facto relationship at any given time is a matter for the Court and not a matter for the parties. Although their perception of the nature of the relationship is a relevant matter, it is not determinative. The Court is required to make an assessment of all of the circumstances of the relationship, with each to be given the weight the Court thinks appropriate. The assessment is to be done judicially. The Court is required to look at the composite picture.
The Full Court in Sinclair & Whittaker (2013) FLC 93-551 at 87, adopted the observations of Fitzerald J in Lynam v Director-General of Social Security (1983) 52 ALR 128 [131] who said:
Each element of a relationship draws its colour and its significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. For any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.
It falls to the applicant to prove that a de facto relationship existed to enliven the jurisdiction of the Court. In other words, for the Court to have jurisdiction to make any Orders regarding property alteration, the Court needs to be satisfied that there was a de facto relationship between the applicant and Ms Innes which has broken down. Only then when an application is made pursuant to S90SM (1) can the Court make a declaration that a de facto relationship existed, or never existed, between the applicant and respondent: S 90RD of the Act.
The applicant submits he was in a de facto relationship for 4.3 years or 5 years with Ms Innes.
If he succeeds on that issue, the Court has the jurisdiction to make Orders altering property interests only when the Court is satisfied that it is just and equitable to do so.
When undertaking this aspect, the duration of the de facto relationship is considered along with the other factors and importantly the alleged financial and non-financial contributions (pursuant to Section 90SM) made by the applicant to the acquisition, conservation and maintenance of the assets owned by Ms Innes, noting that the major asset of the Suburb C property was legally transferred into a joint tenancy with Ms Merritt prior to Ms Innes’ death, in line with the specific instructions of Ms Innes. Now Ms Merritt is, through survivorship the legal owner of the Suburb C property having become so upon the death of Ms Innes.
The applicant also seeks Orders setting aside the transaction in which the legal title of the Suburb C property owned by Ms Innes was changed to a joint tenancy with Ms Merritt. The applicant has never explained the legal basis underpinning the Order sought to set aside the legal transaction changing the legal title from Ms Innes sole name into a joint tenancy. The applicant seems to assume that the Court would do this on the basis that the applicant is entitled to 100% of the Suburb C property.
The applicant has sought various Orders, including that the applicant be included on the title or as seen in his closing submissions, that the son of Ms Innes be included on the title currently held by Ms Merritt. The applicant seems to just work backwards from his position of seeking 100% of the Suburb C property. Ms Innes’ son or daughter have never been parties to these proceedings and there is no legal basis established warranting them to be involved in these proceedings.
As to the evidentiary principles applicable, the standard of proof is on the balance of probabilities as reflected in section 140 of the Evidence Act 1993 (Cth). Accordingly, given the existence of the jurisdictional proviso, the onus is on the applicant, Mr Horne, to prove on the balance of probabilities that there was a de facto relationship between himself and Ms Innes, and how long it was for, and thereafter, that it would be just and equitable for the Court to make a property alteration Order as proposed by him.
In considering the issue as to whether a de facto relationship existed, the applicant has suggested several times in his submissions and in his material, that Ms Innes needs to disprove that a relationship existed or words to the effect. Mr Horne has stated that no one asked me to prove that the relationship existed. This is an erroneous belief and contrary to the legal principes applicable to this application requiring the applicant to prove his case on the balance of probabilities. If the Court is not satisfied that a de facto relationship existed, there is no jurisdiction to make an order altering property interests.
Approach to property division
Thereafter the Court will have regard to the High Court in Stanford which laid down three “fundamental propositions” which will provide useful guidance to trial judges in approaching the task under s79.[17] These were recited above, and could be summarised thus:
(1)Determination of a just and equitable outcome of an application for property settlement begins with the identification of existing property interests (as determined by common law and equity);
(2)The discretion conferred by the statute must be exercised in accordance with legal principles and must not proceed on an assumption that the parties’ interests in the property are or should be different from those determined by common law and equity;
(3)A determination that a party has a right to a division of property fixed by reference only to the matters in s 79(4), and without separate consideration of s 79(2), would erroneously conflate what are distinct statutory requirements.
[17] Section 90SM being the de facto equivalent.
The Act at s90SM(1)(a) states that:
in property settlement proceedings after the breakdown of a de facto relationship, the Court may make such Order as it considers appropriate; (a) in the case of proceedings in respect to the property of the parties to the de facto relationship or either of them – altering the interests of the parties to the de facto relationship in the property.
It is clear that after an identification of the existing property interests (as determined by common law and equity), the Court is required to consider s 90SM(3) which states the court must not make an order under this section unless it is satisfied that under all of the circumstances it is just and equitable to make the Order.
Further, s 90SM(4) states that in considering what Order (if any) should be made under this section in property settlement proceedings, the Court must take into account the matters referred to in s 90SM (4)(a) through to (g). That includes the financial (direct and indirect) and non-financial contributions, contributions to the welfare of the family and matters referred under subsection 90SF(3). The applicant also carries the burden of satisfying the Court that it would be just and equitable for the Court to make any Orders altering the current legal title of the Suburb C property based on the principles referred to in Stanford[18]
[18] Stanford v Stanford [2012] HCA 52.
I will now turn to the evidence.
WAS THERE A DE FACTO RELATIONSHIP? – THE FACTORS UNDER S 4AA(2).
In turning to the matters referred to in s 4AA(2) of the Act, in determining if a de facto relationship existed, the court may consider all or any of the matters listed.
In relation to the voluminous affidavit material filed by Mr Horne, at the outset it is noted that there is very little evidence in relation to any of the relevant considerations that the Court must take into account when determining if a de facto relationship existed.
Duration of the relationship
The Applicant alleges he was in "full-blown" de facto relationship with Ms Innes from late 2014 to early 2019, a period of 4 years. He has never explained what a full-blown relationship means. Ms Innes has denied that a de facto relationship ever existed between her and the applicant.[19]
[19] Affidavit of Mr Baxter filed 18 March 2021.
The second and third respondents deny that the applicant was in a de facto relationship with Ms Innes for four or five years. The second respondent submits that the applicant moved into Ms Innes' home in or around early 2015, not long after meeting the applicant. Ms Merritt says that the parties commenced a casual relationship in early 2015 but that this association ended no later than 2017 following Ms Innes's diagnosis, being a period of less than two years. Ms Merritt says she and Ms Innes were best friends, they would speak every day and Ms Innes had not mentioned the applicant prior to 2015 as she was still mourning the loss of her late partner Mr E.
Through the evidence obtained from Mr Baxter, Ms Innes said that she was not in a de facto relationship with the applicant. Ms Innes told the third respondent that the applicant had described himself to her as a professional; that he had been her carer on and off, but she was adamant there was no relationship there.[20]
[20] Affidavit of Mr Baxter filed 18 March 2021.
Ms Innes also concluded that the applicant was trying to establish (in retrospect) that he was in a de facto relationship with her whereas this was not correct. Ms Innes told Mr Baxter that she had become aware that the applicant was telling others she was in a de facto relationship with him, and that he had started sending text messages to her as “babe” but she “got wind” of what the carer was trying to do and got rid of him (or words to that effect).[21]
[21] Affidavit of Mr Baxter filed 27 April 2021.
The applicant was most perplexed at the trial when cross-examining the second respondent, Ms Merritt, that she did not accept that he was in a de facto relationship with Ms Innes. He questioned her about this issue, and when she said that the relationship was just a dating relationship for less than two years, he kept asking why, if everyone else accepts he was in a de facto relationship, did she not accept this. This question was asked in a variety of ways. There was a myriad of facts in the evidence of Ms Merritt that the applicant did not go near challenging.
The applicant has never produced any financial documents or taxation records or social security records demonstrating that he had advised the Taxation Office, Centrelink or any other institution that he was in a de facto relationship for these years.
Towards the end of 2018 and early 2019, Ms Innes became aware that the applicant was in a relationship with a woman called “Ms R” and he spent most weekends with Ms R, leaving Ms Innes stranded with no car, money or sometimes food.[22]
[22] Affidavit of Ms Merritt filed 29 July 2020, pg 4.
The applicant says he was taken by surprise when he was asked to move out of Ms Innes home. This is patently untrue given the text messages that Ms Innes had been sending him in 2016, 2017, 2018 and 2019 with a common theme of Ms Innes being upset with the applicant using her for her money, and that he put in no money to even pay his rent (whilst claiming rental assistance). Ms Innes was frustrated at the involvement of the applicant in attempting to take a role in organising builder mates and others to put in quotes for the work proposed on Ms Innes’ home, which have led to no real results, just delay and irritation. Text messages show that Ms Innes was sick of the applicant using her money for purposes other than the shopping he was supposed to be doing for materials for the renovations. The applicant says in his evidence that he has a box full of receipts. He may do; however, the applicant has been using the money of Ms Innes. The applicant has never produced evidence showing that he actually financed any purchases. I am satisfied that the source of any funds he ever spent on materials or items for the Suburb C property, were financed by Ms Innes.
It is also evident in the text messages (in Ms Merritt’s affidavit) that Ms Innes said she concentrated on getting over her illness rather than getting the applicant out of her house and that she felt weak for not doing so. Ms Innes explains to Ms Merritt that she is embarrassed at her failure to get the applicant out of her house years earlier, and how he has continually pressured her to leave him her house in her will. She further comments, I know I didn’t have to do what I did, I just tried to help him. I accept the tenor of the messages sent by Ms Innes to Ms Merritt that she had been trying to get him out of the house for years.
Nature and extent of their common residence.
It is common ground that the applicant and Ms Innes shared a common residence sometime between early 2015 until mid-2019 when the applicant finally left the Suburb C property and thereafter not permitted to return. However, there is conflicting evidence as to the nature of the common residence. In one of the text messages from the applicant to Ms Innes is regarding his application for Centrelink and getting rent relief. The response from Ms Innes is Yes but we are not lovers. You rent the spare room.[23]
[23] Affidavit of Ms Merritt filed 4 August 2020, pg 56.
The applicant submits he was also Ms Innes' full-time carer and in receipt of a carers pension for her from early 2018 up to the time the applicant moved out of the Suburb C property in early 2019. The text messages between the applicant and Ms Innes supports this role as Ms Innes’ carer. The applicant’s phone number identifier is seen in the photocopies of Ms Innes’ phone as “[Mr Horne] carer”.[24]
[24] Affidavit of Ms Merritt filed 29 July 2020.
It is not contested that the applicant was Ms Innes’ carer and that he did not pay Ms Innes any rent, nor is it challenged that the applicant claimed rental assistance during the period he occupied the home.
It appears however that this association as carer broke down as seen in the evidence of Ms Merritt and Ms Innes’s text messages. Ms Innes says in her text messages to Ms Merritt He plays mind games and makes you think your losing the plot. The sicker I got, the more he sat on the lounge watching me try to do everything. Every time I started to get worse his first sentence was you need to do your will and put the house in my name. Never can I get something for you.[25] Ms Innes further said of the “care” supposed to be provided by the applicant Waiting for an ambulance. Been another [Horne] throw me under the bus couple of days. He has put a solicitor onto me to get my home. Real fucken charmer eh.[26]
[25] Affidavit of Ms Merritt filed 29 July 2020, pg 58.
[26] Affidavit of Ms Merritt filed 4 August 2020, pg 51.
During cross-examination of the applicant’s witness Mr N, it was apparent he did not know the intimate details of the relationship between Mr Horne and Ms Innes but he said that “it went without saying that we thought/people thought they were in a de facto relationship”, as he had seen them together in the Suburb C property when he had been talking with Ms Innes and Mr Horne about home improvements. I consider this witness attempted give evidence in accordance with Mr Horne’s case even though he did not have the exposure or association or any intimate knowledge to be able to give any personal evidence as to the kind of association that the applicant and Ms Innes had or lived in to make the assertions he made.
Mr N’s evidence consisted of his opinions and presumptions and speculation about what other unidentified people thought. He has had very limited contact with Ms Innes. He was not in the close friendship circle of Ms Innes and his evidence was generally what he thought was the position, rather than any compelling evidence regarding the existence of a de facto relationship. His evidence was so generalised that when it was suggested to him that in his statutory declaration, he did not use the word de facto, he said essentially it was obvious. I’ve taken account of his evidence though I do not regard this evidence as in any way helpful forensically to demonstrate that the parties were living as a de facto couple as identified under the Act. I very much had the impression that Mr N had come to Court to help out his old mate. He was not dishonest; he just did not have any relevant observations. The fact that he knew what type of motor vehicle was on the property is not evidence of a de facto relationship existing.
Whether a sexual relationship exists
I have read a text message from Ms Innes to the applicant saying “the sex was all about you, the renovations was all about you. The lies are to save you”. This message indicates the parties have had sex, however, there is nothing about this which is inconsistent with the evidence of the second respondent, that there was a period when the parties were in a dating like relationship. The applicant has been noticeably quiet on this topic.
The applicant submits he and Ms Innes shared a bed. The evidence of Ms Merritt a frequent visitor to the Suburb C property is that the applicant always slept in the spare room not the bedroom of Ms Innes. During cross-examination of Ms Merritt, the applicant asks her about the set-up of the Suburb C property. In particular the applicant seeks to have Ms Merritt say there was no bed in the second bedroom because he was in a relationship with Ms Innes. However, when the applicant was questioned by the Court for clarification about what was in the study, Ms Merritt says there was also a single mattress.[27]
[27] Transcript of proceedings, pg 54-55.
The evidence of the applicant’s sole witness, Mr N, had physically seen Ms Innes apparently with the applicant. Mr N believed the applicant was sleeping in the same room as Ms Innes. He denied that Mr Horne slept in the second bedroom though there is no evidence of him ever being present whilst the applicant was sleeping in Ms Innes’s bedroom or elsewhere. This was not at all persuasive or helpful in this regard.
The degree of financial dependence or interdependence, and any arrangements for financial support, between them
It is common ground that the applicant was financially dependent upon Ms Innes from whom he received a carers allowance from early 2018 until early 2019 when he was no longer required as Ms Innes was moved to palliative care.[28] The applicant’s financial support appears to be through this social security which it seems he kept to himself.
[28] Affidavit of Mr Horne filed 16 July 2019.
Ms Innes had her own home and superannuation funds when she met the applicant. The applicant arrived with no home of his own, no car, and minimal assets.
The applicant was (as far as Ms Innes knew) an unemployed professional. Ms Innes had told the Applicant to get a job if he was one, so that he could pay his own way and stop asking her for money. Ms Merritt annexes a text message sent by the Applicant to Ms Innes, in early 2019 in another attempt to get back into her home on the basis that he is now going to do something about earning a living as a professional. The text message from the applicant to Ms Innes read Wot u have never realized – I was a [professional] when I met u and always have been. I didn’t finish my exams […].[29]
[29] Affidavit of Ms Merritt filed 4 August 2020, pg 54.
The applicant had no income of his own during the time he lived at no cost in Ms Innes’ home. Even when he was receiving a carers allowance, there is no evidence nor is it asserted, that the applicant paid anything towards the cost of paying for the home or the overdraft, or their day‑to‑day commitments. There is no evidence of him providing any financial support at all.
The situation was completely reversed, wherein Ms Innes provided a home and all of the comfort of that home, and where Ms Innes was the sole source of finances for all costs associated with the home, including the cost of running the home and the costs of the improvements.
There was no evidence the parties mingled their finances or had joint accounts, nor was there any financial evidence from the applicant demonstrating that he had made financial contributions.
The evidence is that the applicant was keeping receipts for things he purchased, but I am satisfied that if he purchased items, he used funds provided by Ms Innes. He has no evidence of paying anything from his own resources. There has been no financial disclosure at all from the applicant. He has not been prepared to be candid with the Court in complying with disclosure Orders. The financial statement from the applicant shows that he is penniless and homeless. Yet the applicant made submissions to the Court during the litigation that he has spent upwards of $10,000 on legal fees and that he was still obtaining legal advice days prior to the trial. The applicant has never provided any evidence as to the amount of legal fees paid by him or where those funds came from. The applicant has never even volunteered the name of his legal team who remain anonymous.
No disclosure was made by the applicant about his finances on this topic or any financial matter at all. I am satisfied that the applicant does not want the other parties to know his financial affairs currently or for the entire period that he lived in the home of Ms Innes. This matter has been on foot long enough for the applicant to be able to access all of his bank statements, social security payment records, tax returns and other financial documents which he has been required to disclose. The applicant however has expressly stated that he does not have an obligation of disclosure and it does not apply to him[30]. I can only assume that it did not assist his case to do so.
[30]Affidavit of Mr Horne filed on 2 November 2020.
There is no evidence of any substantial non-financial contribution towards the Suburb C property. The most the applicant can say is making a vague reference to doing some lighting. There is no evidence that he is an electrician or has any electrical skills.
I accept the evidence of the second respondent who says that the applicant talked to Ms Innes into mortgaging her property to borrow $100,000 for renovations. Ms Merritt has given comprehensive evidence as to the difficulties and ongoing pressures from the applicant in getting renovations undertaken on Ms Innes’ home. There is no doubt those renovations were paid entirely by Ms Innes from the monies she borrowed. Once the applicant was ousted from the home, the second respondent and her husband attended to the improvements in order to have the home be comfortable for Ms Innes in the last period of her life. I accept Ms Merritt’s evidence that Ms Innes believed that the applicant was actually stalling the renovations instead of trying to assist with arrangements and that this was a ploy on his part believing that he would do the renovations once the house passed to him. Ms Innes simply wanted the house to be finished so she could live there peacefully in the last stage of her life, where the whole idea of making changes to her home ended up being a huge cause of contention. As soon as the applicant was no longer living in the home, it was completed in a matter of months through the continuing support of Ms Merritt.
Ms Innes had her own business which she started with the help of Ms Merritt. Ms Merritt has contributed money to help start up Ms Innes’s business, and physically helped her to get a place to rent and run the business. I do not accept that the applicant has been a part of her business or her making goods to sell. This was very much Ms Innes’ pursuit, helped by Ms Merritt. The applicant has not invested any money into Ms Innes’ hobby which she tried to elevate to a business. All of the support for that came both physical or financial from Ms Merritt.
There is no evidence of the applicant paying for materials or outlays, it was clearly a project of Ms Innes. I have taken account of the evidence of the applicant who says that he sometimes chose the goods. I do not accept this and even if he did help, as alleged, I do not consider that this is anyway indicative of an interest in the business.
The applicant attempted to allege that he had worked in Ms Innes’ business, however the second respondent did not agree that the applicant was ever in that shop, and she did not agree that the applicant helped others (namely the second respondent’s husband Mr J) to unload equipment out of a truck from Region O to City S, as he alleged. The business was set up through the financial assistance of the second respondent. I accept the second respondent’s evidence that the applicant did not ever go to the shop and that the second respondent organised for Ms Innes to sell her goods.
The applicant also used Ms Innes’ car. The applicant says Ms Innes paid for the car, but he registered it in his name. In an affidavit deposed to by Ms Merritt, Ms Merritt says the applicant would use her car to visit other women, leaving Ms Innes at home stranded whilst he was supposed to be caring for her.[31] I accept that the applicant started putting things in his name (like Ms Innes’ car which she paid $10,000 for from her own funds, but which the applicant registered in his name).
[31] Affidavit of Ms Merritt filed 4 August 2020, pg 4.
Ms Innes identified unauthorised money being used by the applicant. When he finally moved out, she said her money stopped disappearing. In one text Ms Innes explained to a friend Of course I paid for the [motor vehicle] to be cleaned. When I left for treatment there was $7 grand in my account when I come home I had $3 grand and still nothing bloody finished!!!![32]
[32] Affidavit of Ms Merritt filed 29 July 2020, pg 51.
Ms Innes told the applicant in a text message Due to said financial hardship you have caused me, I no longer have the funds to pay for a one off removalist to the value of $1450. As of [mid] 2019, I will no longer be paying for your car insurance, contents insurance, toll and I will be informing Centrelink that you no longer rent a room here or are my carer.
Ms Innes was aware that the applicant had taken money from other women before. Ms Innes knew that the applicant had been convicted of fraud which she believed involved taking $50,000 from another female. Ms Innes referred to the applicant as a “Nigerian Prince” as she got wind he was taking advantage of her vulnerability to get money from her.
The ownership, use and acquisition of their property
No joint property or real estate. The only property involved in this matter is the Suburb C property which was owned solely by Ms Innes and acquired through funds she received through the passing of her late partner, Mr E in 2014.
The degree of mutual commitment to a shared life
There is little to no evidence of a mutual commitment to a shared life.
The fact put forth by the applicant that he lived in the same house, does not satisfy me that the parties were living as a couple in a genuine domestic relationship. There was no evidence of joint commitment or their life plans together.
There are no photographs of anniversaries or birthdays together or special occasions or jointly with their respective families. There is no evidence of even a joint holiday.
It seems for a short period initially the applicant and Ms Innes may have had some kind of romantic interest, however, there is no evidence that their relationship developed into a time where they had any mutual commitment to a shared life.
The applicant in his various affidavits provides little detail about the nature of their relationship, save for Our life together was great. We did everything together. We were never really apart. We never argued.[33] The applicant has not put forth evidence that this developed into a couple living in a genuine domestic relationship. The evidence is to the contrary. Its appears that their association very much soured and that the applicant would not move out of Ms Innes’s home. In a text message from Ms Innes to the applicant in early 2017 she says:[34]
You might love me but I know nothing about you. I pay for everything. I buy you clothes. You have a roof over your head and food and drink. Why wouldn’t you be happy?? Your set for life but what sort of a life am I going to have?? I speak to nobody about how miserable I am…
You know everything about me!!!! Can you say the same????
[33] Affidavit of Mr Horne filed 16 July 2019.
[34] Affidavit of Ms Merritt filed 29 July 2020, pg 41.
There is no evidence of jointly planning a life together, or of any kind of commitment to each other. On the evidence before the court, they have not travelled away or holidayed together.
There is not a skerrick of evidence of the applicant actually looking after Ms Innes nor is there any specific evidence of any day-to-day routines or of the routine of their joint life together. There have been global unparticularised statements that we lived happily and laughed together and did gardening together. These global statements coupled with self-serving statements such as “I loved [Ms Innes]”, do not assist the applicant to satisfy the evidentiary onus he carries to persuade the Court that he was in a de facto relationship with Ms Innes.
Of all the pages of text messages between Ms Innes and the applicant, there is only one text message where Ms Innes is seen saying “love you xx” to the applicant, notably sent prior to her diagnosis in 2017.[35]
[35] Affidavit of Ms Merritt filed 29 July 2020, pg 44.
The applicant makes various references to the adult children of Ms Innes and how he intends to leave the home to both or one of them, yet in an Affidavit filed by him on 18 November 2020, the applicant deposes that he has never even met her children. The applicant makes reference to contacting Ms Innes’ father, yet again, the evidence is that until the applicant started trying to get evidence to support his own case following the death of Ms Innes, he had had no contact with her father or even met him.
There is an abundance of evidence of the applicant pressuring Ms Innes to leave him her home, and her superannuation to him. It may have been that he thought he was successful in doing this, hence his regular reference to allegedly having a document signed nominating the applicant as the person to whom her superannuation would be left. Whatever discussions were had about that, Ms Innes did not do so, and in terms of the superannuation, there is evidence that a nomination was rejected. At the trial, it was clear that the applicant was still trying to find out from the executor how much money was in the estate and what happened to the superannuation.
The efforts by the applicant to take Ms Innes to his solicitor friend and have her make arrangements to leave the Suburb C property and superannuation to him in her will, leaves me with a strong impression there was a valid basis for Ms Innes to tell others (as she did) that she felt under enormous pressure from the applicant. The applicant taking Ms Innes who was treated for a terminal illness having had medical treatment, and who then had a re-emergence of her symptoms only months later and who was then terminally ill, to make a will in his favour in such circumstances is not the conduct of a person who genuinely cared or loved Ms Innes. This conduct illustrates well the basis of his association with Ms Innes, namely that she represented a financial resource for him.
Once the applicant was out of the house, contrary to the applicant’s own evidence that he left on good terms, and their relationship was loving, Ms Innes made it very clear she never wanted him back and that her life was so much better without him in the house, I actually have money in my account because I’m not paying all your bills. For the first time in [18] months I’m happy.[36] I reject the evidence of the applicant who says regarding his relationship with Ms Innes, we never argued and I left on good terms.
[36] Affidavit of Ms Merritt filed 4 August 2020, pg 46.
These statements are completely contradicted by the evidence of the text messages to the applicant and by the evidence of Ms Merritt who I consider gave her evidence honestly and openly. Those statements are also completely contradicted by the fact that once Ms Innes got the applicant out of her home, she refused to speak with him, and she excluded him from her last months of life. The applicant was not invited to her final party, and he was not included in the inner circle of friends who physically and in regard to all of her practical needs, looked after Ms Innes.
The evidence of the personal struggles and health episodes endured by Ms Innes has come from her close and loving friend, Ms Merritt. Her difficulties with the effects of medical treatment and Ms Innes’s frustrations and despair were all experienced by and supported by Ms Merritt. Ms Merritt has been privy to so much information from Ms Innes regarding the conduct of the applicant, his abusive manner and him referring to Ms Innes mostly using the term “bitch”.
Whether the relationship was registered under a prescribed law of a State as a prescribed kind of relationship
There is no evidence the relationship was registered.
The care and support of children
There are no children of this relationship.
The reputation and public aspects of the relationship
The applicant never met Ms Innes’ children or father. He only called Ms Innes’ father for the first-time following Ms Innes’ death, and this was to try and get him to give evidence that he was in a de facto relationship with Ms Innes.
The applicant has tried to insinuate himself into the life of Ms Innes in the way he has presented his case and the Orders sought by him. The applicant has done this on a background of knowing that Ms Innes wanted him out of her house and her life. Knowing this, the applicant has come to this Court, seeking ill-considered orders of this Court that he be given half of Ms Innes’ ashes. The facts are that Ms Innes chose to have her ashes scattered with those of her former partner Mr E who died shortly before Ms Innes met the applicant. It is clear to me that whilst the proposed Order by the applicant was ill founded in this Court, that there was no evidence at all that the applicant had any regard for the genuine wishes of Ms Innes and he had no basis at all, having not ever met her children or her father prior to the death of Ms Innes, for suggesting that he would be the custodian of a portion of Ms Innes’ ashes. This conduct I regard as vexatious.
There is no evidence that Ms Innes was known as the common law wife of the applicant. The applicant has presented no documentation to support the notion that he and Ms Innes were in a de facto relationship. There is no evidence of the parties presenting themselves socially as a couple living in a genuine domestic basis at all, let alone for 5 years.
Friends of Ms Innes have filed affidavits about their perception of the applicant and Ms Innes’ relationship, Mr T said “I never saw any real affection between them (Mr Horne and Ms Innes) particularly over the last two years”, and Ms U said “In the last couple of years of [Ms Innes]’ life I did not see her demonstrate much form of affection towards [Mr Horne]. [Mr Horne] used to joke about [Ms Innes] not letting him near her in the bedroom and her response was a shrug.”
I accept the evidence of the second respondent, that the applicant was not Ms Innes’s partner in the sense of being a couple in a genuine domestic relationship, and that instead, he was a person who Ms Innes initially felt sorry for and who she invited into her home and who thereafter refused to leave. I accept the evidence that once Ms Innes had her diagnosis, the applicant started behaving differently toward her and tried to pressure her into leaving the Suburb C property and superannuation to him in her will.
I also accept the evidence of Ms Innes (through the third respondent) that the applicant took her to a solicitor friend of his where the applicant attempted in the presence of that solicitor, to have Ms Innes draw up a will leaving him the Suburb C property and also her superannuation. There is even a text message where Ms Innes expresses her disgust at the efforts of the applicant to drag her off to his solicitor in order for her to give the applicant her house.
In terms of the applicant’s behaviour once he was ousted from Ms Innes’ home. I accept the evidence of Ms Merritt that the applicant tried to get back in with Ms Innes after he left her home by sending a barrage of text messages saying he had found other doctors and survivors and that he had the contacts and addresses of these people and he wanted her to come with him to meet them, and that she should be trying other drugs that he has found out about.
I accept the evidence of Ms Merritt who said that the applicant held himself out to be a professional to Ms Innes and others in her friendship circle (see the accompanying affidavits filed by Ms Merritt who were available for cross-examination which the applicant decided not to challenge). In one text message the applicant sent to Ms Innes, […] rang me. Offered 2 do plumbing work @ no cost – As long as I do some [professional] work for him. I said ok and good. I said U r paying 4 all renovations – Not me. I want to reduce all costs 4 [Ms Innes].[37]
[37] Affidavit of Ms Merritt filed 4 August 2020, pg 42.
This message to Ms Innes is in complete contradiction to what the Applicant has told this Court which is that he studied two or three subjects at university years ago but did not finish his degree. I am satisfied on the evidence before this Cout that the applicant has told Ms Innes, Ms Merritt and her husband and other witnesses of Ms Merritt that he is a professional. This text message saying that he is a professional, seems very much at odds with the applicant’s response to an earlier complaint to a government authority that the applicant was on two occasions holding himself out as a professional to other women, to which the applicant had an alleged professional respond that Mr Horne rejects the complaints that he was doing professional work on the basis that he was actually just “form filling” for both complainants.[38]
[38] Affidavit of Ms Merritt filed 4 August 2020, p 55 annexing letters dated 17 June 2018 and 12 July 2018 by Mr W, noting one complaint is from Ms R and the other is addressed to a government body regarding a complaint.
Evaluation of the factors
The applicant has sought the Court to make property orders under the de facto provisions of the Act on the basis that he says he was in a de facto relationship with Ms Innes commencing late 2014 until early 2019. The applicant contends that these dates signify the date the applicant moved into Ms Innes' property to the date she permitted their friends to move his belongings out of the property.
Turning to the matters that the Court must consider, I have found overall the evidence of the applicant to be generalised, vague, imprecise and tailored to give the appearance that he was in a de facto relationship with Ms Innes.
Overall, taking account of all the evidence put forth by the applicant, wherever it conflicts with the evidence of Ms Merritt, in the absence of any independent evidence, I prefer the evidence of Ms Merritt who gave her evidence honestly and openly. I accept her evidence as being truthful and that she is an accurate historian. Ms Merritt has had no choice but to respond to this litigation commenced by the applicant.
The applicant’s evidence gives me a strong impression that he was looking on at Ms Innes’ life, being aware that she had not long lost her partner and then that she was terminally ill. The applicant moved in with no assets, real estate, shares or property and came with a collection of personal chattels which Ms Innes agreed to have on her property for a period. The applicant lived rent free with Ms Innes being the person who solely paid all of the costs associated in running and maintaining the Suburb C property and the household. The applicant accessed her cash on the pretence of being her carer and helping her buy materials for the project of her renovating her home. The evidence suggests that the applicant took more money that Ms Innes had not authorised. It is not contested that the money for the renovations was entirely the money of Ms Innes. It seems it was the applicant’s idea that she take out an overdraft for this purpose.
Having read through all of the evidence and sat through the hearing, the single focus of the applicant has been on (a) retrieving items he believes are still at the Suburb C property and (b) trying to convince Ms Innes to leave her home to him and commencing litigation to force her to make a will doing this. The applicant’s material is redolent with conspiracy theories and scandalous comments about the motivations of the second respondent.
The applicant has given self-serving evidence such as saying he loved Ms Innes, and even going to the extent of continuing to contact her via social media and send her a card, which unbelievably he says he kept a copy of, when he believed Ms Innes was in palliative care. The applicant has been pre-occupied in staking a claim on the assets of Ms Innes; however, his evidence falls well short of establishing that the parties lived together as a couple in a genuine domestic relationship. The facts were, as set out in the applicant’s material, that the applicant was checking with the titles office to see when the home changed title, and this was how he determined that Ms Innes had died.
My overall impression is that there is no evidence to support the sense or facts of the applicant and Ms Innes living as a couple in a genuine domestic relationship. The applicant has moved in with nothing, there has been a short-lived romantic association between the applicant and Ms Innes, but I am not satisfied that their relationship involved the parties living together on a genuine domestic basis as defined by s 4AA(1) of the Act at any time. It appears that anything romantic ended when Ms Innes found out she had the serious diagnoses likely to be terminal in 2017. At that point Ms Innes decided she really wanted the applicant to move out as she had been asking him to do, without success, and then to have nothing further to do with Mr Horne. The applicant still did not move out. Ms Innes understandably concentrated on her life‑threatening invasive treatments and said she just did not have the energy to get the applicant out of her home. Finally, when the illness returned, she managed to get the applicant out of her home on the basis that he thought if he moved straight away, he would get what he had been asking for repeatedly, which was to get Ms Innes to leave her home and superannuation to him.
I am satisfied that following the short-lived romantic association there was a period where these parties cohabited and there was nothing other than a casual association, and that for a period Mr Horne was her carer. In that role he insinuated himself into her private affairs including suggesting that he help her with her divorce on the basis that he told Ms Innes he was a professional and further, that he set about having Ms Innes make a will leaving all of her estate (home and superannuation) to him, at a time when she was suffering an invasive and terminal illness. It seems from the applicant’s own evidence that he was pressuring Ms Innes for four years to divorce her late husband, until she eventually agreed in late 2018 at which time the applicant personally prepared all the paperwork to be filed with the court.[39] I have a strong impression given all of the evidence in this matter the applicant was concerned her ex-husband may have a claim over Ms Innes’ estate if they remained married.
[39] Affidavit of Mr Horne filed 18 November 2020, pg 35.
I reject all of the speculations and case theories of the applicant that when Ms Innes decided to leave her home to Ms Merritt, this was all part of a plan to deprive him of having an interest in the Suburb C property. The applicant has made scandalous untruthful allegations about Ms Merritt in his material, and I reject them all.
The applicant may have resided in the Suburb C property, but there is no evidence that the applicant and Ms Innes lived in a de facto relationship. There are relationships where parties can live in the same house, but not be in a genuine domestic relationship. The applicant benefited from living at no charge with the applicant.
I have concluded after consideration of all of the evidence, that there is insufficient evidence to satisfy the Cout on the balance of probabilities that a de facto relationship ever existed between the applicant and respondent. The evidence of the witness Mr N fell well short of satisfying me that the applicant and Ms Innes were living as a couple in a genuine domestic relationship. His evidence was speculation. The evidence presented by the applicant to support this claim was almost non-existent.
The applicant has caused considerable legal costs in pressing on with his applications over several years. The distress he has caused to Ms Merritt is immeasurable and the legal costs to the third respondent has likely eclipsed the remaining value of the estate.
Mr Horne has been clutching at various strands of Ms Innes’ life, trying to weave it into something that looked like a de facto relationship. My strong impression is that Mr Horne did not have a personal relationship with Ms Innes for very long if at all, nor did he go through the fear and suffering with Ms Innes when she faced the first diagnosis of a terminal illness, and then the frightening news that her illness had returned, which eventually took her life.
It is clear that Ms Innes turned to her dear friend Ms Merritt for love and support, and particularly during those dark frightening times, as she did when her former partner Mr E died. Ms Innes turned straight to Ms Merritt for support.
The applicant appears to have been a spectator in the household, who was focused on his own financial gain whilst living in the Suburb C property with Ms Innes. My strong impression is that he saw Ms Innes as a financial resource, not as a person with whom he was sharing his life with and living with in a genuine domestic relationship as part of a couple.
Given my findings, it is appropriate to make a declaration that no de facto relationship existed between Mr Horne and Ms Innes. The consequence of having made that determination is that the application for a property adjustment by the applicant is to be dismissed. Included in that will be an Order dismissing all applications by the applicant including the Order sought by the applicant to set aside the transaction transferring the Suburb C property from Ms Innes to the joint tenancy of Ms Innes and Ms Merritt.
IS IT JUST AND EQUITABLE TO MAKE AN ORDER?
In the event that I am wrong about a de facto relationship not existing, I will turn my consideration to the issue of whether it is just and equitable for the Court to make an Order altering the legal interest of the Suburb C property.
I will do this on the basis that the de facto relationship existed for up to four and a half to five years as was alleged by the applicant.
In order to do that I will consider the provisions of Section 90SM(4)(a), (b) and (c) being:
(a)The financial contribution made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
(i)To the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii)otherwise in relation to any of that last mentioned property; and;
Whether or not that last mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de-facto relationship or either of them; and
(b)The contribution (other than financial contribution) made directly or indirectly by or on the behalf of a party to the de facto relationship, or a child of the de facto relationship.
(i)To the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or (ii) otherwise in relation to any of that last mentioned property; and;
(ii)The contribution made by a party to the de facto relationship to the welfare of the family constituted by the parties to the de facto relationship and any children of the de facto relationship, including any contribution made in the capacity of homemaker or parent.
The legal title of the Suburb C property at the commencement of the relationship was in the sole name of the first respondent, Ms Innes.
It is agreed that the applicant made no financial contributions at all to the acquisition of the Suburb C property. The Suburb C property was wholly owned by the first respondent along with her superannuation funds standing in her name.
The applicant brought no significant or substantial assets into the relationship. He was homeless and owned nothing save for some chattels.
The parties have kept their finances separate and there was no joint financial arrangements or bank accounts.
The applicant has not established that he made any financial contribution to the preservation or maintenance of the Suburb C property. All of the money that was used in the renovation was money which Ms Innes borrowed from her own bank via an overdraft in her own name, no doubt with security being her fully owned Suburb C property, which the applicant lived in rent free.
The applicant has produced no evidence that he earned other money whilst he lived at the Suburb C property for around four and a half years, save and except in around 2018 he earned money as Ms Innes’ carer. There is no evidence that he spent his own money on any item that went towards the renovation or any other significant cost.
The applicant has chosen not to comply with his obligation of disclosure including details of his income and tax assessments and records or any bank accounts. He has produced no evidence of any funds otherwise directed into the Suburb C property. He has produced nothing, by choice, in response to his obligation of disclosure.
The evidence of any work done on the Suburb C property amounts to the applicant saying that he did some wiring, that he is an electrician as well. There is no evidence to support this assertion. Even if that was correct, it would be such a minimal contribution as to not warrant any adjustment. No evidence was put forth by the applicant other than vague statements that he did some wiring.
There is no evidence that the applicant made any non-financial contributions of any kind. There is evidence he was a paid carer for a period.
Moreover, any such contribution is easily offset by the value of the free accommodation the applicant enjoyed for the years he lived in the Suburb C property (even ignoring the other moneys he had Ms Innes pay on his behalf such as the mini storage). He had many benefits from living in the Suburb C property and having financial support when he needed it from Ms Innes. He used the applicant’s car, and she funded a variety of other expenses for the applicant. There is no evidence of him paying any board or rent, in fact, the evidence is that he paid no rent whilst at the same time accessing rental assistance. All of the overheads associated with the Suburb C property were funded solely by Ms Innes. The applicant was literally living off the financial support provided by Ms Innes whilst keeping his earnings to himself.
I am satisfied that at a point during their association, Mr Horne saw an opportunity to be included in Ms Innes’ will and he guided Ms Innes away from her friends and into the office of his solicitor mate, to have her draw up a will leaving an interest in the Suburb C property to the applicant. Her failure to follow through with his plan, to leave the Suburb C property to him in her will, prompted the applicant to file proceedings in this Court.
Ms Merritt has been a dear friend of Ms Innes for many years and Ms Innes wanted her to have the Suburb C property. The applicant’s material is full of conjecture and generalised statements about him accompanying Ms Innes to her hospital appointments, which if it was true, I would have expected him to do in his role as a carer. He was receiving that money to undertake duties; however, the evidence of Ms Innes and Ms Merritt is that the applicant often failed as a carer. I accept the evidence of Ms Merritt that she cared for Ms Innes right to the end of Ms Innes’ life, as deposed to in her affidavit.
Mr Horne has not been honest in his dealings with Ms Innes, nor with the Court.
CONCLUSION – SHOULD THERE BE AN ADJUSTMENT?
Having taken account of all the evidence, I am not satisfied that it would be just and equitable to make any property alteration Order. The alleged contributions by the applicant are de minimis, and his evidence falls well short of convincing the Court that it would be just and equitable for a property alternation to be made. I intend to dismiss all of the applications for a property alternation Order sought by the applicant.
In light of all the evidence, the Orders sought by the applicant seeking that half the Suburb C property or the entire Suburb C property and the superannuation of Ms Innes be transferred to him has no evidentiary basis whatsoever. Given the paucity of evidence to support his claim, I regard this application as vexatious and an abuse of process.
The Order sought by the applicant that this Court make an Order “transferring a one-half interest in the [Suburb C] home” which now stands in the legal title of Ms Merritt, to the son of Ms Merritt is also dismissed on the basis that it is entirely without merit, and once again the applicant is intruding into the family relationships of Ms Innes without any basis in law for doing so. I regard this application as vexatious and an abuse of process.
The respondents in this matter each seek an Order that the applicant pay their legal costs. There are also other costs Orders outstanding. In the interests of attempting to reduce further costs for the respondents, I intend to make Orders for written submissions as to costs, following which the issue will be determined on the papers.
I intend to make an Order that the applicant’s for costs file short written submissions by no later than 22 April 2024 together with a minute of Orders sought to reflect the scale and any other level of Costs sought. The submissions are to be emailed to Mr Horne who is to acknowledge receipt by return email.
Mr Horne is to file and serve on each party short written submissions responding to their applications for costs, by no later than 10 May 2024. As I have said, thereafter the matter will be determined in Chambers, on the papers.
I also intend to make a direction for the Principal Registrar to refer this judgment and any other papers necessary to the relevant professional body given my findings that the applicant Mr Horne has been describing himself to Ms Innes, the second respondent and other witnesses of Ms Merritt as a professional, noting also that Mr Horne has advised the Court he did not study, but in contradiction, his own text messages to Ms Innes he is seen explaining that he has always been a professional as noted in paragraph 112.
I certify that the preceding one hundred and ninety-one (191) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Willis AM. Associate:
Dated: 12 April 2024
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