JOSS & CHADWELL
[2015] FamCA 550
•17 July 2015
FAMILY COURT OF AUSTRALIA
| JOSS & CHADWELL | [2015] FamCA 550 |
| FAMILY LAW – JURISDICTION – De Facto – Where the applicant sought a declaration in relation to property settlement proceedings that a de facto relationship existed between the applicant and the respondent – Where the parties were in a relationship for 16 years – Consideration of the circumstances set out in s 4AA(2) of the Family Law Act 1975 (Cth) – Where the parties shared a common residence for relatively short periods of time –Where the parties engaged in sexual relations – Where the parties had other relationships and sexual partners – Where the applicant was dependent on the respondent for financial support for periods during the relationship – Where the parties did not have joint bank accounts – Where the parties bought two properties together – Where the parties both separately purchased other properties – Where the parties did not always physically care for each other during periods of illness – Where the parties spent significant periods of time apart – Whether the parties were living together on a “genuine domestic basis” – Application seeking declaration for a de facto relationship dismissed. |
| Family Law Act 1975 (Cth) ss 4AA, 44, 90RD, 90RE, 90RG, 90RF, 90SM Family Law Amendment (De facto Financial Matters and Other Measures) Act 2008 (Cth) De Facto Relationships Act 1984 (NSW) |
| Barry and Dalrymple [2010] FamCA 1271 In the Marriage of Cierpiatka (1999) FLC 92-864 Jonah v White [2011] Fam LR 460 Nelson v Nelson (1995) 184 CLR 538 Roy v Sturgeon (1986) 11 Fam LR 271 |
| APPLICANT: | Mr Joss |
| RESPONDENT: | Mr Chadwell |
| FILE NUMBER: | SYC | 1932 | of | 2013 |
| DATE DELIVERED: | 17 July 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Loughnan J |
| HEARING DATE: | 15 – 20 September 2014 and16 October 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Sutherland SC |
| SOLICITOR FOR THE APPLICANT: | Swifte Law |
| COUNSEL FOR THE RESPONDENT: | Mr Schonell |
| SOLICITOR FOR THE RESPONDENT: | Beilby Poulden Costello |
Orders
The application for a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) that a de facto relationship existed between the parties between January 1997 and 17 December 2012 is dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Joss & Chadwell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 1932 of 2013
| Mr Joss |
Applicant
And
| Mr Chadwell |
Respondent
REASONS FOR JUDGMENT
Introduction
By his Application filed 11 April 2013, Mr Joss (“the applicant”) sought orders for settlement of property. The present hearing relates to a threshold issue – the applicant seeks a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) (“the Act”) that a de facto relationship existed between him and Mr Chadwell (“the respondent”) between January 1997 and 17 December 2012. The respondent opposed the making of that the declaration.
It is agreed that the parties had a relationship between those dates. The issue in the proceedings is whether the relationship met the definition of a de facto relationship in s 4AA of the Act. It falls to the applicant to make that case.
The hearing
The matter was initially listed for hearing over two days commencing on 14 April 2014. Both parties were represented. The trial directions required the respondent’s affidavits to be filed by 23 December 2013 and any evidence in reply by 23 January 2014. In breach of that timetable, the respondent’s affidavit was filed on 20 February 2014 and the affidavits of his supporting witnesses in March 2014. When the hearing commenced, the applicant’s counsel sought to file and rely on an affidavit in reply. The respondent’s counsel announced that he could not meet the new material.
After some discussions on 14 April 2014, the parties’ counsel agreed that the hearing could not be completed in two days, indeed that it would require at least four days and probably five days. It was agreed that in the meantime the parties should have discovery about their finances. The hearing listed to commence on 14 April 2014 was abandoned and a fresh hearing was fixed to commence on 15 September 2014 for five days. Further trial directions were made and the parties’ costs were reserved.
On 15 September 2014 the trial commenced. The hearing could not be completed on 19 September 2014 and the matter was adjourned to 16 October 2014 for submissions. On that day, judgment was reserved. It is regretted that judgment has taken more than nine months.
The Parties
Mr Joss was born in 1969 and at the time of the hearing he was 45 years of age. He changed his name to Mr Joss on 13 October 2010. The respondent was born in 1958 and at the time of the hearing he was 56 years of age.
Background Facts
Except as noted, the following facts are not disputed.
The parties met in January 1997. They had sexual interactions in the first few weeks thereafter.
From 26 March to 3 May 1997 the applicant was in the Country K.
Soon after the parties met, the respondent assisted in obtaining work for the applicant. The respondent and Mr B (“Mr B”) owned gaming outlets in C Town and D Town. The applicant was later employed as a gaming agent at the C Town outlet.
In approximately 1997 the parties participated in a naked photo-shoot together.
From 4 May 1997 to 12 May 1997 the parties holidayed in Country E together.
In October 1997 the respondent purchased F Street, Suburb G (“the Suburb G property”). The applicant deposed that he and the respondent lived in this property together. The parties agree that later, Mr B lived in the property. There is reference in the evidence to Mr B living in the attic. The respondent said that he and the applicant were together in the property on occasions when Mr B stayed elsewhere.
From 10 December 1997 to 18 January 1998 the applicant travelled with Mr H and Ms I to Country J and the Country K.
From 25 July 1998 to 31 August 1998 the respondent travelled to Europe with Mr B.
In 1998 the parties went together on a weekend trip to Canberra and L Town.
In March 1999, M Street, N Town (“the N Town property”) was purchased in the name of O Super Fund. O Superannuation Fund is the superannuation fund of the respondent and Mr B and O Pty Ltd is the corporate trustee for that fund. Upon purchase, Mr B moved into the N Town property and the respondent frequently visited him there.
In March 1999 the applicant and Mr Q (“Mr Q”) purchased P Street, C Town. The respondent lent the applicant $10,000 which the applicant in turn lent to Mr Q. That sum was applied towards the deposit on the property.
From 27 November 1999 to 20 July 2000 the applicant was in the Country K without the respondent.
The respondent took over the management of the R Town agency in 2000 and subsequently moved to R Town, living at the N Town property. After the applicant returned from the Country K in July 2000 he also moved to the N Town property.
The respondent sent the applicant Valentines Day cards in both 2000 and 2001.
In 2001 the parties went together on a weekend trip to Melbourne.
In February 2001 the applicant moved back to Sydney and recommenced working at the C Town gambling outlet.
In April 2001 the respondent purchased a property at S Street, T Town (“the T Town property”). The parties subsequently renovated the property, creating three separate rental spaces called the U House, the V House and W House.
In November 2001 the respondent commenced a relationship with Mr X (“Mr X”). Approximately three months after meeting Mr X, the respondent offered to sponsor him for Australian residency, as his de facto partner.
In December 2001 the applicant and Mr Q sold P Street and jointly purchased 2 P Street, C Town.
In 2002 the respondent and Mr B sold the Suburb Y property.
In mid-2002 the respondent moved permanently to the R Town area.
In August 2002 the N Town property was sold.
In November 2002 the respondent sold the Suburb G property.
In November 2002 Mr X moved in with the respondent, first at the property at S Street, T Town and in December 2002, at the Z Town property.
In December 2002, AA Street, Z Town (“the Z Town property”) was purchased in the name of O Superannuation Fund. The applicant assisted with renovations and improvements at the farm.
In 2003 the parties had a three way romantic relationship with Mr X. During this time the three men stayed at the Z Town property.
In early 2003 Mr X went back to Country BB, returning to Sydney in late 2003. Mr X was granted a permanent Australian De Facto Visa around this time.
From 15 September 2003 to 3 January 2004 the applicant was on an international holiday. During this time he visited Mr X in Country BB. The respondent helped fund the trip. During this time the respondent remained in Australia and worked in CC Town in New South Wales.
In April 2004 the applicant transferred his half interest in 2 P Street to Mr Q. In connection with that transfer, Mr Q executed a document in which he declared, contrary to his evidence in these proceedings, that his de facto relationship with the applicant ended in February 2003. Both the applicant and Mr Q gave evidence that their relationship ended in 1996. It is agreed that the applicant lived at 2 P Street at least from 22 April 2007 to a date in May 2007.
In 2004 the parties made a short visit to the Queensland town of EG and engaged in sexual intercourse together.
In May 2004 the applicant purchased DD Street, R Town. The parties renovated the property and rented it out as a holiday rental.
In July 2004 the parties purchased 2 DD Street, R Town as joint tenants. The parties renovated the property and rented it out as a holiday rental.
In 2005 the parties went on a two night trip to EE Town to look at investment properties.
In March 2005 the respondent purchased FF Street, GG Town and it was added to the portfolio of holiday rental properties.
From 4 September 2005 to 24 September 2005 the applicant travelled to the Country K to attend his father’s funeral. He travelled without the respondent.
In 2005 the respondent prepared a will, naming the applicant an executor and the residuary beneficiary.
In 2006 the parties went on a trip to look at investment properties in HH Town, II Town and JJ Town. The parties were away for three nights.
In September 2006, the respondent and Mr B purchased a property at KK Street, LL Town.
Between 22 May 2007 and 17 December 2007 the applicant resided in the Country K without the respondent.
In February 2008 the applicant sold 2/1 DD Street, R Town and the parties sold 2 DD Street, R Town.
In May 2008 the parties purchased MM Street, Suburb G. The property was registered in the applicant’s name and the parties entered into a Deed of Understanding regarding ownership of property, agreeing that the respondent would have a 74.9 per cent interest in the property (16.4 per cent to the respondent personally and 58.5 per cent to his company, O Pty Ltd) and the applicant a 25.1 per cent interest. The respondent also registered a caveat over the property. The parties spent $240,000 on renovations to the property. The applicant completed most of the renovations and lived in the property for over a year. The respondent deposed that he assisted with the renovations and that his sister Ms NN and Mr B looked after the Z Town property during this time.
The parties later rented out the MM Street property. The respondent deposed that it was agreed the rental income would be used to pay off the mortgage. The applicant became unwell in 2009 and the respondent contends that he agreed that the applicant could keep some of the rental income from the Suburb G property. It is common ground that in fact the entire rental income went to the applicant. The applicant says that the rent was his sole source of income.
From 9 May 2009 to 6 December 2009 the applicant was in the Country K without the respondent.
The respondent made a further will in 2009 appointing his sister, Ms ZZ as an executor and leaving to each of Mr B and the applicant the properties in which he had respectively invested with each of them.
In 2010 the applicant stayed at the Z Town property for at least two months while he was unwell. The applicant deposed that the respondent supported him financially while he was unwell, paying for medical and other expenses. The applicant then returned to Sydney, alone, before moving to Melbourne.
In February 2010 the respondent sold FF Street, GG Town.
In May 2011 the applicant told the respondent that he had been working in the sex industry since 2008.
From 27 May 2011 – 4 June 2011 the applicant was in Country PP, without the respondent.
From 19 August 2011 to 16 September 2011 the respondent was in the Country K and Country QQ with Mr B.
In late 2011, the applicant moved to Melbourne and had sexual relations with Mr OO (“Mr OO”).
From December 2011 to April 2012 the applicant lived in Suburb RR, Sydney.
From 23 April 2012 – 17 September 2012 the applicant was on an international holiday. Mr OO travelled with the applicant.
From October to November 2012 the applicant and Mr OO house-sat Z Town. The respondent travelled overseas from 29 September 2012 to 29 November 2012.
From 5 December 2012 – 17 January 2013 the applicant was in Country SS.
It is common ground that the parties’ relationship ceased in late 2012. The applicant moved back to Sydney and then to Country SS with Mr OO.
In January 2013, the applicant attended at the Z Town property to collect his belongings. He also removed the respondent’s will. The applicant says he removed some but not all of his personal items. He removed the items by car, in plastic bins and left them with a local storage/removal company. The respondent contends that the applicant also removed the respondent’s photos, documents and computer. The applicant denies this, claiming that the respondent had borrowed his computer and that at this time the parties swapped computers back..
Since January 2013 the applicant has lived at Suburb RR in Sydney.
The applicant commenced these proceedings when he filed his Initiating Application on 11 April 2013.
In 2013 the respondent made a will which excluded the applicant.
Credit
There are many factual disputes in the proceedings. Credit assumes some significance in determining the proceedings as many of the those disputes fall to be determined without any independent corroboration. Each of the parties relied on very extensive affidavit evidence and in turn, much of that evidence was challenged.
The applicant has made many statements that are inconsistent with his evidence in these proceedings. Many of his incoming passenger cards recorded different residential addresses to those which he deposes were his addresses at the relevant times. On no occasion did he represent on such a card that he was in a de facto relationship.[1] There would seem to be no obvious reason for that, unless he did not consider that he was in such a relationship. The applicant’s tax returns for the years when he said he was living at the Z Town property show the receipt of wages but are entirely inconsistent with the parties’ evidence that he was not receiving payment for his work on the farm. It is the applicant’s evidence and I do not think it is controversial, that whatever the declared position, the respondent did not actually pay him for farm work or for managing rental properties. It is the applicant’s evidence that the respondent paid his expenses and gave him all the money he needed[2].
[1] The applicant ticked the “never married” box rather than the “common law/de facto” box on his outgoing passenger card dated 10 December 1997. On his incoming passenger card dated 19 January 1998 he again ticked the “never married” box.
[2] Paragraph 274 of the applicant’s affidavit filed 2 December 2013
I understood the applicant to concede during cross-examination, that his evidence[3] about staying at DD Street, R Town for a while in 2004, was false. The applicant was challenged on the issue, conceded that his written evidence was wrong and then prevaricated. He was then warned about the importance of carefully attending to questions asked in cross-examination.
[3] Paragraph 40.5 of the applicant’s affidavit filed 14 April 2014
The applicant was asked why the parties rarely travelled together and his various responses do not sit comfortably with the agreed facts. For example the applicant asserted that the respondent was reluctant to travel, that he and the respondent could not financially afford it and that the respondent did not accompany him to Country QQ in order to avoid an adverse reaction from members of the applicant’s family. As the agreed evidence revealed, the parties travelled to Country E in 1997; that the respondent travelled with Mr B to Europe in 1998 and to Country K and Country QQ in 2011. The applicant visited his family with his then partner, Mr OO in 2012. When he was overseas with Mr B in 2011 the respondent visited the applicant’s mother for one night during this trip. I regarded the applicant as a poor witness.
To my observation the respondent was also a poor witness. The respondent assisted Mr X to secure residence status in Australia on the basis of representations that they were in a de facto relationship. He assisted him with documentation to support that claim. In 2003 he prepared a will in whole or in part for the purposes of supporting Mr X’s residence application. He added Mr X’s name to the telephone account for S Street, R Town. For reasons that are difficult to fathom, in relation to some of the documentation that plainly did not reflect the facts, instead of conceding that documents were crafted for the purposes of Mr X’s application, the respondent tried to assert that the representations in the documents were factually correct.
The respondent was asked about the references in various affidavits filed in his case to the applicant as a WOOFA (a term for a farm worker paid with provision of food and lodging) and rejected the contention that he sought to convey that that was the applicant’s status at N Town and at Z Town. There is no doubt in my mind that despite at all times contending that the applicant was a close friend and for much of the time of their relationship, an investment partner, an attempt has been made in the respondent’s case to convey the impression that the applicant was no more than a casual farm worker. For example there are references at paragraphs 11.2 and 12 of the respondent’s affidavit asserting directly or by necessary inference that the character of the applicant’s presence at Z Town or N Town was as a WOOFA. Importantly, it was put to the applicant in cross-examination that he was a WOOFA. That was presumably done on instructions from the respondent.
Much was made in the course of cross examination of the applicant about false declarations and statements made by the applicant. It was therefore remarkable, not to mention distracting, to find similar conduct by the respondent.
The respondent initially denied that the parties had a sexual relationship after 1997 and that proved to be false.
All of that said, credit is only important in these proceedings in relation to the factual disputes in the case. It is not relevant in respect of opinions about the fundamental issue before the Court. Although the resolution of the factual disputes would be of assistance, many of the facts are uncontested.
The observations of other witnesses can be relevant to assessing the reputation and public aspects of the parties’ relationship. The parties and many of the other witnesses have expressed opinions about the nature of the relationship between the parties and between each party and others. They used terms such as “de facto”, “partner”, “boyfriend”, “friend”, “close friend” and “sexual relationship”. In most, if not all instances, it is impossible to know what was meant by those terms. Even if it was possible to identify the intended meanings, the witnesses opinions about whether the parties were in a de facto relationship, are not important. The ultimate issue before the Court involves assessing the facts of the parties’ relationship against the statutory definition. Witnesses, including the parties can express probative opinions about the features of the parties’ relationship but cannot assist the court about the key issue. The only relevant opinion about that issue for the purposes of these proceedings, is the opinion of the Court.
Finally, it is important to note that even if the representations of a party during the relationship or since were false and deliberately so, and even if that was done for the purposes of gaining a monetary or other advantage, findings about disputed factual matters and of course, as to the characterisation of the parties’ relationship, remain matters for the Court. The importance of a person not profiting from an earlier misrepresentation does not detract from the Court’s obligation to identify the true position, where that is practicable[4]. In this case the central issue is whether the parties’ relationship in fact meets the statutory definition.
[4] In the Marriage of Cierpiatka (1999) FLC 92-864; Nelson and Nelson (1995) 184 CLR 538.
Relevant Law
Sections 90RD, 90RE, 90RF and 90RG of the Act provide:
90RD Declarations about existence of de facto relationships
(1) If:
(a)an application is made for an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL; and.
(b)a claim is made, in support of the application, that a de facto relationship existed between the applicant and another person;
the court may, for the purposes of those proceedings (the primary proceedings), declare that a de facto relationship existed, or never existed, between those 2 persons.
(2)A declaration under subsection (1) of the existence of a de facto relationship may also declare any or all of the following:
(a)the period, or periods, of the de facto relationship for the purposes of paragraph 90SB(a);
(b)whether there is a child of the de facto relationship;
(c)whether one of the parties to the de facto relationship made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c);
(d)when the de facto relationship ended;
(e)where each of the parties to the de facto relationship was ordinarily resident during the de facto relationship.
Note:For child of a de facto relationship, see section 90RB.
90RE Effect of declarations
(1)A section 90RD declaration has effect as a judgment of the court.
(2)For the purposes of this Act (other than Part VII), a section 90RD declaration has effect according to its terms.
90RF Applying for declarations
Any party to the primary proceedings may apply for a section 90RD declaration.
90RG Geographical requirement
A court may make a section 90RD declaration only if the court is satisfied that a person referred to in paragraph 90RD(1)(b), or both of those persons, were ordinarily resident in a participating jurisdiction when the primary proceedings commenced.
Here the applicant seeks orders under s 90SM which provides for the Court to make property settlement orders after the breakdown of a de facto relationship.
Jurisdiction
This Court has jurisdiction in relation to financial matters relating to de facto relationships because of Part VIIIAB of the Act. That Part was inserted into the Act by the Family Law Amendment (De facto Financial Matters and Other Measures) Act 2008 (Cth) (“the amending Act”). Part VIIIAB does not apply to a de facto relationship that “broke down” before the commencement date of the relevant schedule of the amending Act, (Item 86 of Part 2 of Schedule 1 to the amending Act); that commencement date was 1 March 2009.
Section 44 of the Act relevantly provides:
FAMILY LAW ACT 1975 - SECT 44
Institution of proceedings
(1)Except as otherwise prescribed by the regulations or by the applicable Rules of Court, proceedings under this Act shall be instituted by application.
….
(5)Subject to subsection (6), a party to a de facto relationship may apply for:
(a)an order under section 90SE, 90SG or 90SM; or
(b)a declaration under section 90SL;
only if the application is made within the period of 2 years after the end of the de facto relationship (the standard application period ).
(6)The court may grant the party leave to apply after the end of the standard application period if the court is satisfied that:
(a)hardship would be caused to the party or a child if leave were not granted; or
(b)in the case of an application for an order for the maintenance of the party--the party‘s circumstances were, at the end of the standard application period, such that he or she would have been unable to support himself or herself without an income tested pension, allowance or benefit.
What is a de facto relationship?
As to what constitutes a de facto relationship for present purposes, s 4AA of the Act provides:
(1)A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b) the persons are not related by family (see subsection (6)); and
(c)having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has effect subject to subsection (5).
Working out if persons have a relationship as a couple
(2) Those circumstances may include any or all of the following:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h) the care and support of children;
(i)the reputation and public aspects of the relationship.
(3) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4) A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
(5) For the purposes of this Act:
(a)a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and
(b)a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.
As is referred to by Coleman J in Barry and Dalrymple [2010] FamCA 1271 at [227], in Roy v Sturgeon (1986) 11 Fam LR 271, an early case decided pursuant to the provisions of the De Facto Relationships Act 1984 (NSW), Powell J of the Equity Division of the Supreme Court of New South Wales suggested that to dissect the phrase appearing in the New South Wales legislation:
“…living together as a husband and wife on a bona fide domestic basis” into discrete “elements” and then testing the facts of a particular case by reference to set of a priori rules in order to establish whether a particular “element” is, or is not, present, is to ignore the fact that just as human personalities and needs vary markedly, so, too, will the various aspects of their relationship which lead one to hold that a man and woman are living together as husband and wife on a bona fide domestic basis vary from case to case.
I respectfully agree with the observation of Coleman J in Barry and Dalrymple, that: “Without resorting to dictionary definitions, ‘genuine’ and ‘bon[a] fide’ mean largely the same thing.”
It falls to the applicant to establish on the balance of probabilities that the parties’ relationship between January 1997 and 17 December 2012 was a de facto relationship. I turn to the evidence about the topics set out in ss 4AA (2).
(a) Duration of the relationship
It is agreed that the parties’ relationship spanned the period from January 1997 to December 2012.
The dispute is about the nature of the relationship. The applicant contends that the parties were in a de facto relationship and the respondent, that they were (just) friends. It falls to the applicant to make his case. The respondent does not have to establish that the relationship had any particular character.
(b) The nature and extent of their common residence
The applicant’s evidence makes it difficult to ascertain what his contention is about the parties living together. Doing the best I can with his evidence I understand the applicant’s contention to be that the parties lived together as follows:
i.From mid to late February 1997 until 26 March 1997 the parties commenced spending more nights together than not, at UU Street, Suburb Y;
ii.The parties travelled and stayed together in Country E between 4 and 12 May 1997;
iii.On return from Country E the applicant returned to live at VV Street, Suburb G but he says that the respondent often slept over with him there;
iv.On 17 October 1997 the respondent bought F Street, Suburb G and the applicant deposed that the parties lived there together. The applicant flew to Country QQ on 10 December 1997, returning on 18 January 1998;
v.On return from Country QQ the applicant again returned to live at VV Street, Suburb G and says that the respondent often slept over with him there. The applicant deposed that if Mr B was away, the parties stayed at F Street together;
vi.In March 1999 the applicant and Mr Q bought P Street, C Town and the applicant lived there while renovating it. On occasions the parties stayed there together;
vii.The parties lived together at N Town for about seven months commencing in July or August 2000;
viii.From May/June 2002 until May 2007, apart from periods when the applicant was overseas, the parties lived together;
ix.The parties lived together at Z Town for much of March and April 2008;
x.For 12 months from May 2008 until 6 May 2009 the applicant lived in the parties’ property at MM Street, Suburb G, while he renovated it. It is his evidence that the respondent stayed with him a few times, usually for a week or so at a time; and
xi.The parties lived together at Z Town for nine periods in 2010, totalling three months.
The respondent deposed to living in the same premises with the applicant only during the following periods:
i)for approximately five months in 2003 at the Z Town property;
ii)for a couple of months in 2004 at the Z Town property;
iii)on occasions when the respondent returned to Sydney in 2008 – 2009 to help the applicant renovate the property at MM Street, Suburb G;
iv)for a couple of months in 2010 at the Z Town property; and
v) from time to time between 2001 and 2010 when the applicant visited the N Town property, the Z Town property, or the T Town property for a weekend, a week, or a few weeks at a time. This was mostly in 2005, 2006, and 2007 and mainly occurred at the Z Town property.
The evidence about the parties’ shared travel is less controversial. The only time the parties were together overseas was for nine days – when they met in Country E in May 1997. There was no real challenge to the respondent’s evidence that the parties travelled together in Australia from 1997 as follows:
i)one night in 1998 to Canberra and L Town;
ii)one night in about 2000 to the zoo;
iii)one night in 2001 to Melbourne;
iv)two nights in about 2004 in Queensland;
v)two nights in about 2005 to EE Town;
vi)three nights in about 2006 to HH Town, II Town and JJ Town; and
vii)an overnight trip to WW Town and XX Town.
Apart from their joint travel, there is an alarming difference in the parties’ evidence on this issue. There is no independent evidence to assist with this issue.
In circumstances, as apply here, where neither party is completely reliable as a witness and where there is little or no independent corroboration, the shortfall will be born by the party who has an evidentiary onus to discharge in the proceedings.
I can safely find that the parties had a common residence for the periods that are agreed. With regards to the disputed periods, the applicant put forward evidence which attempted to establish that he resided at a particular property at a certain point in time. This evidence was patchy and did not cover all disputed periods. For example he attached to his affidavit evidence of his attendance at the R Town Medical Centre in 2002, a newspaper advertisement with his contact details as “[Mr Joss] on … Z Town” in 2004 and gave evidence that he left items at the respondent’s properties such as toothbrushes, shaving equipment, clothes, furniture and photo frames.
The respondent put forward evidence that challenged the applicant’s assertions, for example he provided various incoming passenger cards signed by the applicant from the period 2000 – 2007 which listed intended addresses in Australia that were inconsistent with his evidence in these proceedings.
Due to the inconsistent nature of the evidence put forward on this issue, it is not possible to be confident about the disputed periods. I do not propose to set out an exhaustive report about that evidence.
At its highest, the applicant’s evidence is that apart from odd occasions here and there, the parties lived together for about six years of their 16 year relationship. Even then the nature of their cohabitation is disputed.
(c) Whether a sexual relationship exists;
It is agreed that the parties did have a sexual relationship.
(d) The degree of financial dependence or interdependence, and any arrangements for financial support, between the parties
It is the applicant’s case that for many years the respondent undertook most of the financial arrangements associated with the parties’ relationship, including their investment arrangements. The applicant was mainly involved in searching out investment opportunities and undertook much of the physical work of renovating properties. It was put to the applicant in cross-examination that the respondent bought six properties between 1997 and 2012. The applicant agreed that he made no financial contribution to those purchases. It is probable that most if not all of the dealings with financial institutions for the parties’ property investments were undertaken by the respondent.
It is common ground that the parties did not have joint bank accounts. The applicant claims that although they did not have shared bank accounts, they had access to each other’s bank accounts and cash reserves and often transferred funds between the accounts. It is the applicant’s evidence that the respondent gave him all the money he needed. For periods the applicant had his own income – from wages and from rental income, including from the MM Street property. Although his tax returns for some years in the 2000’s show him earning wages as a farm worker (for the respondent), neither of the parties suggest that wages for farm work were actually paid or received.
The respondent deposed that he loaned the applicant small amounts of money such as $500.00 which the applicant would re-pay. He stated in his affidavit that the only thing he has assisted the applicant to purchase was an infrared sauna that he purchased in 2010, as the sauna was going to remain on the respondent’s property. It must be that the respondent intended to exclude the joint purchase of real estate from that contention.
It is also clear that the respondent funded or assisted to fund various holidays for the applicant. Communication between the parties while the applicant was travelling overseas in 2003 with Mr X makes this clear. An email from the applicant to the respondent on 16 October 2003 states “we’re having loads of fun spending your money don’t worry !!!!” and in response, the respondent replied on 17 October 2003 “make sure you stick to your budget…you are not getting anymore money.!!!!!!! I am poor white trailer trash now.”
The applicant deposed that during the relationship the respondent would “top up” his bank account when it was running low. He said that the respondent would quite often transfer him $50 or $100. The respondent denied this and said that the only transfers between the parties’ bank accounts were made in relation to joint investments in real estate. The evidence did not permit a finding in favour of the applicant on this contention.
There was no evidence of the respondent paying for any of the airfares of the applicant, despite his numerous international holidays. The respondent did not provide the applicant with a credit card, as he did for Mr X.
The applicant deposed that when he returned from an overseas trip in late July 2000, he received a 4WD motor vehicle which the respondent told him was for his use. This vehicle was registered in the respondent’s name.
There is no doubt that at times the respondent monitored and operated on the applicant’s bank accounts. The evidence includes communication between the parties involving the applicant asking for financial help and at other times, apparently unsolicited messages from the respondent informing the applicant about the status of the applicant’s own bank accounts. That is to say that on occasions and for periods, the respondent monitored the applicant’s accounts and advised the applicant and operated on his accounts. The respondent prepared at least some of the applicant’s tax returns or arranged for them to be prepared. I am satisfied that the respondent provided extensive financial support to the applicant.
It is common ground that the applicant has been named in wills prepared by the respondent. Others were also named in the respondent’s wills. It is the evidence of the respondent that in the 1990’s he made a will leaving the entirety of his estate to Mr B. He made a will in 2003 leaving his interest in UU Street, Suburb Y to Mr B, his property at YY Street, Z Town to the applicant and his property at S Street, R Town to Mr X. I understood the respondent to concede that this will was a fiction created to assist with Mr X’s residence application. His next will was made in 2005 and therein the respondent named the applicant as an executor and as the residuary beneficiary. In 2009 the respondent made a new will appointing his sister, Ms ZZ as an executor and leaving each of Mr B and the applicant the properties in which he had invested with each of them. In that will he left legacies to his family members and the residue to Ms ZZ and Mr B. In 2013 the respondent made a new will appointing, Ms ZZ as executor and leaving his estate to Mr B, Ms ZZ and other members of his family. It is the respondent’s evidence that the 1990’s will and the 2009 will, have been lost.
The applicant gave instructions to a solicitor for the preparation of a will that made provision for the respondent but the resultant draft was never executed by the applicant.
Although they did not have joint bank accounts, to some extent, the applicant was dependent on the respondent for financial support for periods during the 15 years of their relationship.
(e) The ownership, use and acquisition of their property
The parties bought two properties together.
In July 2004 the parties bought 2 DD Street, R Town as tenants in common in equal shares. The respondent contends that the property was bought by the parties as a joint investment. He says that the applicant suggested the purchase and he agreed, thinking that the property would be a good investment and that the applicant would do a good job of renovating the property. The property was purchased for $275,000 of which the entire amount was borrowed. One hundred and twenty thousand was borrowed from the respondent’s sister at 5 per cent interest and the balance was borrowed from the Credit Union. The parties sold the R Town property in February 2008 for $412,000. They repaid the respondent’s sister and divided the profits equally, receiving $15,000 each.
On 19 May 2008 the parties purchased MM Street, Suburb G for $870,000. To some extent the evidence of the parties is contradictory but for the purposes of these proceedings, I am satisfied about the following contentions. It is the evidence of the respondent that the parties agreed that they owned the property as to 74.9 per cent by the respondent and as to 25.1 per cent by the applicant as reflected in a Deed of Understanding signed by the parties. The respondent says those proportions represented the respective contributions made by the parties or on their behalf, to the purchase. However, the title to the property was held in the sole name of the applicant. It is the respondent’s evidence that that was done because the parties agreed that the applicant would live in the property and manage the investment and also because it was much easier for him to attend the auction in person and sign the contract than for the respondent.
A loan was taken out in the name of the applicant for $200,000 through the Commonwealth Bank to fund the renovation of the property. It is the respondent’s evidence that the loan was in the applicant’s name because he was on the title but that the parties agreed that they would both be responsible for repaying the loan. The respondent guaranteed the loan. The loan was subsequently extended by three further loans of $20,000, the final advance of which was incurred, according to the respondent, to repay the applicant’s credit card debts. It is the evidence of the respondent that both parties contributed to the work associated with the renovations including purchasing equipment and appliances. The respondent said that during the renovations he and the applicant stayed at the property in separate rooms. It is the evidence of the respondent that the parties agreed to rent the property out, that the rent would be paid into the applicant’s bank account and that the entirety of the rent would be applied to discharge the loan to the Commonwealth Bank. It is the evidence of the applicant that he worked exclusively for 12 months renovating the property. He said it was rented out in around May 2009.
In 2009 the applicant became unwell. The respondent agreed that the applicant could use some of the rental income to help him get better. The respondent deposed that the applicant used more money than he had agreed to, and spent the money on travel and other expenses. The respondent said that once every three to six months he would ask the applicant to stop using the rental money and request that he apply it to the mortgage. The respondent said that the parties had a heated argument in 2012 over the use of the income from the MM Property, with the respondent threatening to sell the property and the applicant claiming that the property was his. I am not sure whether that argument coincided with the breakdown of the parties’ relationship or played some part in causing it.
It is the applicant’s evidence that in addition to those joint purchases, the parties jointly chose the farm at Z Town although it was ultimately purchased through O Pty Ltd. The applicant deposed that the search for a new farm was a task which the parties undertook together with a view to continuing their life together. The respondent denied this and said he purposely sought to distance the applicant from participation in the search for the Z Town farm. He said that he attended any inspections with Mr B. As to whether the applicant was involved in the inspections of Z Town, I prefer the evidence of the applicant. Ms AB was the vendor and she gave evidence on this issue, stating that she observed the applicant attending the inspections of the property with the respondent.
The applicant says the parties also looked at various other investment properties to purchase together. The applicant gave evidence that the parties considered purchasing an investment property in Country K. I accept that evidence.
During the time the applicant alleges the parties were in a relationship, they both separately purchased other properties.
·On 17 October 1997 the respondent purchased F Street, Suburb G. This property was sold in November 2002.
·During 1999 the applicant purchased P Street, C Town as joint tenants with his ex-partner, Mr Q. .
·During 1999 the respondent purchased a property at M Street, N Town in his sole name.
·In December 2001, the applicant purchased 2 P Street, C Town with Mr Q. This property was transferred to Mr Q in 2004 pursuant to a Termination Agreement[5].
·On 2 April 2001 the respondent purchased S Street, T Town.
·On 2 December 2002 the respondent purchased AA Street, Z Town through O Pty Ltd in its capacity as trustee of C B Investment trust.
·In May 2004 the applicant purchased DD Street, R Town. He said this was on the advice of the respondent.
·In March 2005 the respondent purchased a property at BC Street, CD Town.
·In September 2006 the respondent and Mr B purchased a property at LL Town as joint tenants. The applicant was asked why he did not buy the property with the respondent. The applicant responded to the effect that he helped source the property but it was a property purchased “for [Mr B]”.
[5] Exhibit 1.
The applicant travelled to Europe from May to December 2007. He deposed that during the trip he spent time looking at property in Country K as he and the respondent had planned to purchase an investment property. In any event the parties did not buy a Country K property.
(f) The degree of mutual commitment to a shared life
The parties supported each other at various times but for example, it is common ground that they did not always physically care for each other during periods of illness.
In March 1997 the respondent had his myopia corrected in North Sydney. The applicant left Australia to travel to Country K that same day. The respondent attended the airport to say goodbye to the applicant but the applicant did not attend the appointment with him. Mr B cared for the respondent during this time.
In 2000 the respondent had reconstructive surgery to straighten his nose after being hit by a surfboard. The respondent said that the applicant did not visit him or care for him during this time.
The respondent is HIV positive. He said that in 2007 he was unwell and had to cease working. He made arrangements to access his super fund if required. He said that the applicant was overseas during this time of illness. The respondent also gave unchallenged evidence that the applicant never attended a HIV clinic visit with him.
In 2010 the applicant was diagnosed with Chronic Fatigue Syndrome. The parties were not living together during this time. The respondent was residing at Z Town and the applicant lived in Sydney. The applicant deposed that he travelled up to Z Town around 20 times from 2009 – 2010. The applicant said that during this period of sickness, the respondent only visited him once or twice and that “he stayed with me, didn’t care for me, just visited me”. He said that in October 2010 the respondent purchased him an infrared sauna as part of his therapeutic treatment.
The applicant and respondent spent very significant periods of time apart. However, the email correspondence between the parties over these periods of time apart suggests that theirs was a loving relationship and that the respondent in particular wanted to deepen, consolidate or advance that relationship.
While the applicant was in the Country K in 2000, the respondent sent him a letter on Valentine’s Day which included the following text[6]:
I do love you and I am willing to fight, and fight hard, for you… I bought that house in [Suburb G] in the hope that we would live there together and renovate it… I bought the farm in [R Town] in an attempt to move away from Sydney and you, yet that seems to have brought us back together again… My happiness lies with you… as long as we respect each other and place our relationship first the rest will look after itself… the course of true love never runs smooth…I am not totally dependent on you emotionally or sexually… I told you about my affair at New Year’s…I was honest with him and told him about you – he thought you were a spunk… it was not good in so much as he was guilt-ridden about being a party to me cheating on you… it was just a case of if you can’t be with the one you love, love the one you’re with… don’t forget you are my main man… don’t forget I miss you and love you and I’ll be here for you no matter how long you take to sort things out.
[6] Annexure K – page 39-46 of applicant’s second affidavit.
The respondent also sent the applicant a Valentine’s Day card which said “Happy Anniversary”.[7] The applicant submitted that in broad terms, that related to the anniversary of the parties first meeting in 1997.
[7] Annexure L – pages 47-48 of the applicant’s second affidavit.
From 15 September 2003 to 3 January 2004 the applicant was on an international holiday. During this time there was ongoing communication between the parties. Relevant emails between the parties are referred to below:
An email sent by the respondent to the applicant on 21 September 2003 included the following:[8]
Hey, I wish I was there with you now… damn… anyhow .. you suss out the best places and you can take me back there …
Love you heaps…
[Mr Chadwell]
[8] Annexure AAM – Page 183 of the applicant’s second affidavit.
An email sent by the applicant to the respondent on 7 October 2003 included the following:[9]
“miss you, love you. I wish you were here enjoying this with us.
[Mr Joss] and [Mr X] XXX”
[9] Annexure AAM – Page 186 of the applicant’s second affidavit.
An email sent by the respondent to the applicant on 14 October 2003 included the following[10]:
I can’t wait until we are all back home together. I hope you and [Mr X] don’t start hating each other as happens sometimes when people travel together…
Remember I love you and cant wait to see you soon.
Love [Mr Chadwell]
ps. You look gorgeous in that picture.
[10] Annexure AAM – page 187 of applicant’s second affidavit.
An email sent by the respondent to the applicant on 20 October 2003 included a poem at the end of the email which read[11]:
[11] Annexure AAM – page 196 of applicant’s second affidavit.
Sometimes late at night
I lay awake and think about you
I drift away in dreams so I turn off the lightAnd lay there in the dark
Then the thought crosses my mind
What if I should die before I see you
Would you know the feelings that I have
For you in my heartAnd in my mind
If tomorrow never comes
Would you know how much I love you
Have I tried in every way
To show you every dayHow I really feel about you.
An email sent by the applicant to the respondent on 27 October 2003 included the following[12]:
If you haven’t guessed already I’ve been missing you terribly and just want to come home now. I love you you big sexy stud, can’t wait to get back for a bit of loving… and a nice cuddle too. [Mr Joss] x.
[12] Annexure AAM – page 200-201 of applicant’s second affidavit.
An email sent by the respondent to the applicant on 29 October 2003 included the following[13]:
And what’s with this “I won’t tie you down business”? You are the only one I want to tie me down. My idea of heaven is you and me doing whatever we want without having to worry about supporting [Mr X] and [Mr B] and worrying about your family and mine… [Mr EF] is not my new boyfriend… any more than [Ms FG] is my girlfriend… I have told them both about you and showed them your photo… I hope you are home soon cos I miss my baby… and our snuggles and nookies… Love you heaps… more each day… kinda like mould growing on a wet spot
Your boyfriend
[Mr Chadwell]
[13] Annexure AAM – page 204-205 of applicant’s second affidavit.
An email sent by the applicant to the respondent on 11 December 2003 included the following[14]:
I arrive back in Brisbane at 6.30 in the morning…I’ll leave arrangements up to you…although it would be nice to have you to myself for a day or 2 when I first get back before having to face the ‘family’ again… miss you too. And I’m looking forward to coming home… I love you. [Mr Joss] XX
[14] Annexure AAM – page 229 of applicant’s second affidavit.
An email sent by the applicant to the respondent on 11 December 2003 included the following[15]:
… if our relationship is to survive and have a future, we need somewhere that belongs to just us. Any healthy relationship needs that if it is to survive and flourish. I want this relationship to work so am willing to try anything to make it work. But there are 2 of us in this relationship so I need your input… I’d just like a semi normal boy/boy relationship with the person I’d like to spend my life with and am tired of being treated as if I am evil for wanting that… I love you and am willing to do whatever it takes.
[15] Annexure AAM – page 231 of applicant’s second affidavit.
On 4 December 2005 the applicant went overseas as his father passed away. The respondent did not travel with him. The applicant deposed that his family had not accepted that he was in a relationship with a male and for this reason the respondent could not travel with him.
The applicant travelled overseas from 22 May 2007 until 17 December 2007. The respondent did not travel with him. The applicant deposed that the respondent did not travel with him during this time as he did not like going on overseas holidays and that the parties were not “compatible travellers”.
In May 2007 the applicant, while in Great Britain attended the wedding of Mr GH and Mr HI. . Communication between the parties during this period included an email sent by the respondent to the applicant on 27 June 2007 which included[16]:
Hey, you know I miss you heaps. My life has no meaning without you in it. You are my best mate. Love you. [Mr Chadwell].
[16] Annexure AAM – page 241 of applicant’s second affidavit.
The respondent deposed that he and the applicant have only spent three Christmas/New Years periods together. He said these were in 2004, 2006 and 2007 and on each of these occasions, it was as part of a group of friends spending New Year’s eve together. The applicant alleged that for Christmas in 2004, the respondent gave him presents including a push bike and cycling gear. This was denied by the respondent.
The applicant went overseas again from May to December 2009. He did not travel with the respondent.
From August – September 2011 the respondent spent time overseas with Mr B. The respondent visited the applicant’s mother for one night during this trip.
From 23 April – 17 September 2012 the applicant went overseas to spend time with his Aunt who was unwell. The respondent did not travel with the applicant.
It was submitted by the respondent that during personal and important events for the applicant, such as his father’s funeral, his brother’s wedding and his brother’s infant son’s diagnosis with cancer, the respondent was not present and the applicant could not produce one email which demonstrated that the respondent was thinking about the applicant at these times. Further, the applicant was consistently overseas on holidays when it was the respondent’s birthday and he conceded in cross examination that he forgot the respondent’s birthday on at least one occasion.
The applicant deposed that the respondent gave him a gold signet ring engraved with his initials that he had previously given to Mr B. The applicant deposed that until 2012 he wore the ring on his wedding finger. The respondent denies that he gave the applicant such a ring. It is not possible to make a finding in favour of the applicant on that evidence.
The evidence about this issue is difficult to summarise. There is no doubt that by way of written communications during the applicant’s overseas travel, the respondent made overtures to him about an ongoing relationship and at times, the applicant responded in kind. In cross-examination, the respondent characterised his communications as his periodic attempts to draw the applicant into a permanent and committed relationship. The effect of the respondent’s evidence was that his efforts were largely unsuccessful and his desire for that type of relationship, was largely unrequited. I prefer the evidence of the respondent on that issue.
(g) The care and support of children
There are no children of the parties’ relationship.
(h) The performance of household duties
There is little evidence on this point.
The reputation and public aspects of the relationship
This criterion calls for evidence about the presentation and appearance of the parties’ relationship. Although not probative in the normal evidentiary sense I have included in the notes of the evidence of the parties’ witnesses, their reported impressions of the parties’ relationship.
It was submitted by the respondent that the parties were rarely invited to public events together. The only physical evidence that the applicant could produce of both of them being invited to a public event were some emails from Ms IJ in 2009, one inviting the parties to her birthday and the other, to a symphony in the park.
Mr Q has known the applicant since 1994. He was in an exclusive relationship with the applicant until September 1996. He was introduced to the respondent soon after the parties met. At that time the respondent described Mr B to Mr Q as “an old boyfriend” and said “we are still friends”. Mr Q stayed with the parties at their N Town property in 1999 and in December 2000 and it appeared to him that the parties were sharing a bedroom and sleeping together at that property. The respondent stayed with Mr Q and his partner, Mr JK for about six months from approximately December 1999 until June 2000. During that time Mr Q heard the respondent refer to the applicant as his partner. In April 2003 the parties visited Mr Q while on holidays at KL Town. In March 2005 the parties stayed with Mr Q and his partner at an apartment at CD Town. Mr Q asserts that the parties visited as a couple. Mr Q only stayed at the Z Town property once but he asserts that on that occasion the parties were sharing a bedroom. Mr Q was able to make that assessment as he walked through the bedroom to inspect their en suite. When he stayed with Mr Q the respondent often referred to the applicant as “my [Mr Joss]”. The respondent said to Mr Q on numerous occasions words to the effect of: “I love him”, referring to the applicant. Mr Q saw the parties kissing and cuddling. He heard the respondent speaking about funding the applicant’s travel – saying things about paying for the applicant’s credit card bills with words such as: “How much is this one going to cost me?” Mr Q observed what he thought was a three way relationship between the parties and Mr X for some period between 2001 and 2003. In late 2012 Mr Q had a discussion with the respondent’s sister Ms ZZ, to the effect that they did not understand why the parties were still together.
Mr Q was a gregarious witness, prone to embellish his answers with information about context and related matters. At times it was apparent that he included in his answers impressions that went beyond circumstances that he directly witnessed. That said I found Mr Q to be a witness of truth. He is an important witness because he knows both the parties, albeit obviously having a greater reason for loyalty to the applicant.
Mr Q executed a document in relation to the transfer of 2 P Street seeking an exemption from stamp duty, asserting that he and the applicant remained in a de facto relationship until 2003. That assertion is entirely inconsistent with his sworn testimony in these proceedings. It is possible, that, as he said in cross-examination, he does not recall executing that document. In any event, while they no doubt remained friends, I do not accept that there was a relationship in the nature of a de facto relationship between the applicant and Mr Q after 1996.
Mr LM was first introduced to the applicant in January 1998 as an old friend and previous partner of Mr Q. He was helping Mr Q move into P Street, C Town which he had bought with the applicant. The parties arrived together and helped with the moving process. Mr Q had earlier described the respondent to Mr LM as the applicant’s boyfriend. Mr LM regularly visited the property and witnessed the applicant’s extensive renovation and restoration of the property.
Mr LM has spent time with the parties both in Sydney and on the North Coast. They attended social functions together in Sydney and on one occasion he assisted the parties on Melbourne Cup day at a gaming outlet. He visited the parties at three different properties since they moved from Sydney in 1999. He never stayed with them. He was introduced to Mr B as a friend of the parties and was told by Mr Q that Mr B was an ex-boyfriend of the respondent. With Mr Q and Mr JK he first visited Z Town in about 2002. They were shown around the house including the parties’ shared bedroom. On his second visit to Z Town he was impressed with the significant amount of work done on the property. He observed the parties appeared very happy and proud of the progress made at the property. It is his evidence that the parties appeared to be living together as a couple and that they shared a bedroom. The applicant stayed in a spare room at P Street, C Town with Mr LM in 2010. Mr LM observed the applicant to be unwell and physically exhausted. Some months later the respondent stayed a night or two and shared the spare bedroom occupied by the applicant. In a conversation just between them the respondent asked after the applicant and offered to contribute towards his rent.
During cross examination Mr LM was asked why he thought the parties were sharing a room when he visited them at Z Town in 2002. He responded that when he was shown around the house he saw clothes, an unmade bed and a sex toy on the bedside table in the master bedroom. These observations led Mr LM to conclude that the bedroom looked like a bedroom that two people shared.
Ms IJ visited the N Town property in about 2000 and understood that the parties were a couple from her observations of them. She observed the applicant perform cooking and set the table. She noted that he appeared to know where all the household items were located in the house. He did not act like a guest. They talked about work being done at the farm, including work the applicant was doing. The parties spoke about how they had planted trees and repaired buildings. She understood that Mr B too had performed work at the farm.
She visited the parties at the Z Town property at Christmas 2006 and shared a meal with them. Ms IJ understood that the parties were a couple at that time and that they had spent the Christmas/New Year period together. She and her boyfriend visited the parties at the Z Town property at Christmas and New Year 2008 and shared a meal with them. The parties were the only other occupants of the house. Again she observed that the parties shared a room. Ms IJ attended the applicant’s 40th birthday party and gave him a painting by the respondent’s sister. The respondent was also at the party and it was Ms IJ’s impression that the parties were in a relationship. Ms IJ had several dinners with the parties while they were renovating the Suburb G property, she recalled that the applicant and respondent arrived together, sat together and left together.
Ms IJ visited Z Town at the beginning of 2010. The applicant was not present at the time, but the respondent and his sister were living at the property. Ms IJ recalled that the respondent still had feelings for the applicant and that he talked about his efforts to meet someone new. Ms IJ was aware the parties ran a guesthouse at T Town and that the applicant travelled overseas for a period of months on multiple occasions. Ms IJ said she became aware of this through conversations with Mr Q, who is a close friend.
Mr MN is a friend of the applicant, he first met the applicant at a bar on WX Street in late 2000 – early 2001. At the time Mr MN met the applicant, he understood him to be living at P Street with Mr Q and Mr JK. He recalls the applicant telling him that he was with the respondent, but that they were having some problems and taking a break for a while and later telling him that they had sorted out their differences and the applicant was moving to R Town to live with the respondent. Mr MN met Mr X sometime between 2001 and 2003 and was told by the applicant that he was in a three way relationship with the parties. Mr MN said that sometime in 2003 the applicant told him that he and the respondent were looking to buy a farm together and that the respondent owned a property at T Town which the applicant was renovating and setting up as holiday accommodation.
Mr MN stayed at the T Town house in November 2004 and recalls the parties visiting them and telling them about the farm and other properties they were looking at buying in the area. Mr MN recalls visiting the farm with his friends and the parties showing them around the property. He recalls the applicant showing him the interior of the house, including the master bedroom which Mr MN understood he shared with the respondent. Mr MN also saw the parties when they visited Sydney. He said there were several occasions where he visited the parties at 2 P Street during their trips to Sydney. Mr MN said other visitors were usually present at the house and he recalled the parties sitting together on the lounge and cuddling at these gatherings. Mr MN also recalled visiting MM Street after it was purchased. He commented that the house was in a terrible condition after it was purchased and visited the house on several occasions while it was being renovated and after renovation. Mr MN gave evidence that from what he saw and was told by the applicant, that the applicant managed the entire renovation.
There was no real challenge to Mr MN’s evidence. He was asked how he knew that the applicant shared the master bedroom at the farm with the respondent and responded that he saw clothes and general possessions in the room and that both parties were going in and out of the room and no other room was occupied. He conceded that he could not be sure that the clothes he saw belonged to the applicant.
Mr GH has known the applicant for 18 years. He met the respondent in the summer of 1997 when he was staying at VV Street with his partner Mr HI. He said that the applicant and respondent appeared to be in a relationship at this time. Mr GH also met Mr B at this time and recalled that Mr B and the respondent did not appear to be in a relationship. Mr GH said that the applicant would often visit and stay with him in Country K during visits to his family in Country QQ. He said during this time the respondent would call and ask if his boyfriend or “My [Mr Joss]” was there.
Mr GH visited Sydney for the Mardi Gras in 1998 and attended a pre Mardi Gras party at F Street. He said the applicant and respondent were present at the party and gave every appearance of being a happy couple. During late 2002 – early 2003 Mr GH and Mr HI visited R Town and had dinner with the applicant, respondent and other friends, recalling that the parties appeared to be a couple at this time. Mr GH met Mr X at this time and later learnt that he had a brief affair with the respondent. Mr GH and Mr HI also visited the farm during this trip and said that the respondent showed him the master bedroom, stating it was his and “[Mr Joss’] room”. He said that he and Mr HI slept in Mr X’s room, which he observed to contain Mr X’s personal effects.
In 2003 Mr X and the applicant stayed with Mr GH and Mr HI in Country K. Mr GH learnt that the applicant, respondent and Mr X were in a three way relationship at this time. In January 2005 Mr GH rented a beach house at EE Town for Mr HI’s 40th birthday and invited amongst other guests, the applicant and respondent. Mr GH deposed that the applicant and respondent appeared to be in a relationship at this time and recalled that they were cuddling while watching a movie. Mr GH and Mr HI visited the applicant and respondent again in R Town in 2007, staying at the T Town property for a week. Mr GH visited the farm and observed the new renovations to the property including an en suite bathroom adjoining the master bedroom. Mr GH observed the parties to be sleeping together in the master bedroom as he saw clothes on the floor and commented that the other bedrooms were unoccupied. He said that the applicant and respondent were discussing future plans together, including joining a dramatic society and the expansion of the highway adjoining the farm.
In 2007 the applicant attended Mr GH and Mr HI’s wedding. The applicant was looking to purchase a property in Country K around this time and Mr HI hired the applicant to work as a driver for his company. The applicant later resigned from this role and commenced working as a handyman, which later led to work as an erotic masseur. Mr GH recalls the applicant telling him that he and the respondent had some issues at this time that related to Mr X and some other short-term flings that the respondent had over the years. Mr GH recalled that the applicant made sudden arrangements to return to R Town in December 2007. Mr GH and Mr HI next visited the applicant and respondent in Sydney in January 2009. They stayed in MM Street which was in the final stages of renovation. Mr GH recalled going out to dinner with the parties and attending a party at MM Street. He observed that the applicant and respondent appeared to be a happy couple, however recalled a conversation at the party where the respondent asked “How can I get [Mr Joss] back… what is the attraction for [Mr Joss] in Country K”. Mr GH said he told the respondent that the parties should formalise their relationship.
The applicant next visited Mr GH in Country K in May 2009 before living in a flat in OP Street and working in the sex industry. Mr GH said the applicant told him he was confused about his relationship with the respondent at this time and did not know where he stood. The applicant returned to Australia on 6 December 2009. In January 2011 Mr GH visited Australia and invited the applicant to stay with him at PQ Town. The applicant told Mr GH that he had feelings for Mr OO and that the respondent was very controlling and would not let go. Mr GH became aware that the parties had separated in around December 2012/January 2013.
During cross-examination, Mr GH was challenged about the date which he met the respondent, with the respondent alleging he did not meet Mr GH until 2000. Mr GH conceded that it is possible he did not meet the respondent until 2000 but was confident that he had met him in 1997. When asked whether the applicant and respondent had an open relationship Mr GH said that he knew the parties had affairs during their relationship and knew Mr X was involved. Mr GH said that the applicant had not had sex with anyone other than the respondent, aside from as a result of his sex work in 2009. He denied that the applicant had sex with Mr H. Obviously, Mr GH could not give probative evidence on those matters. Mr GH was asked why the respondent did not travel with the applicant on the applicant’s various trips to Europe. Mr GH replied that the applicant generally came over to visit his family, who were very homophobic and would not appreciate the respondent visiting. Mr GH was aware that the applicant took Mr OO to meet his family, saying that he was aware that this caused a major issue for the parties.
Mr GH was challenged about his evidence that the applicant and respondent were sharing a room when he visited the farm. He maintained that he saw clothes in the master bedroom that were both folded on the bed and unfolded on the floor. He said he could determine some of the clothes belonged to the applicant due to their size. He was also asked what he meant when he said that the parties had some issues over the years due to Mr X and the respondent’s short term flings at paragraph 19 of his affidavit. Mr GH stated that the applicant was jealous of Mr X and that the respondent had supported Mr X’s de facto visa. He was also jealous of others he thought the respondent might be having a relationship with. Mr GH conceded that he didn’t invite the respondent to PQ Town in 2011 and did not explain why.
Ms I is a friend of the applicant. She first met the respondent in March 1997 when he was introduced to her as the applicant’s new boyfriend. At the time Ms I was travelling with the applicant to the Country K. Mr B and the respondent dropped Ms I and the applicant at the airport. Ms I observed the applicant and respondent to be affectionate towards each other at the airport. Ms I also travelled to Country J with the applicant and Mr H in December 1999, she said that the applicant told her he was with the respondent at this time. Ms I visited the applicant and respondent at Z Town in approximately 2002/2003 and observed Mr X to also be staying at the property. Her family has also stayed at the T Town property on several occasions. Ms I gave evidence that over the years she has attended various dinner parties with the applicant and respondent, who have always arrived as a couple. She said that the respondent called the applicant “my [Mr Joss]” or “[Mr Joss]” on these occasions. She remembers a housewarming party in 2009 held at MM Street, Suburb G, and recalls that the applicant and respondent appeared to be in a relationship at this event. She observed that the applicant had renovated the property himself and was shown around the renovations. Ms I was introduced to Mr OO in January 2012 and stated that at this time she realised the applicant and respondent’s relationship was ending.
Ms I’s evidence was not challenged during cross-examination. When asked about her conclusion that the parties were a couple over the years, she said this impression was based on her evidence that they were kissing and touching and “just being in a relationship”.
Ms AB and her late husband sold the property known for the purposes of these proceedings as “Z Town” to the respondent (formally the purchaser was O Pty Ltd) in December 2002. She first met the parties in or around August 2002 when they came to inspect the property together. She recalls a conversation about the noise level from the highway adjoining the property and that both of the parties asked for permission to visit the property at various times to assess the noise level. She remembers the respondent saying to her on that occasion: “We met in Sydney a few years ago and have been partners ever since. We now live in R Town but are searching in the area for a farm to buy as we both crop on farms and we both miss that life.” She recalls that over the next few weeks the parties came back together on about four to six occasions, staying several hours each time and eventually making an offer on the property. She recalls that on those visits only the parties attended.
She and her husband visited Z Town five or six times between 2003 and 2009 and she visited twice since then. On most of those visits she saw both parties. On rare occasions there was just one of them. On one visit, possibly in 2003, she met Mr X and he was introduced as the respondent’s friend. She never met Mr B. Ms AB observed many changes and improvements to the property over the years and was often very impressed at what had been achieved since the last visit. The respondent said to her many times “[Mr Joss] is responsible for the improvements to the farm. He does most of the work himself but I help him when I can”. She says the respondent often showed what had recently been done, saying words to the effect: “let me show you what [Mr Joss’] been doing” she recalls the respondent showing her and her late husband rock walls and a bridge saying words to the effect: “this is the rock wall and bridge that [Mr Joss] has built”. She remembers the respondent showing her and her late husband new hardwood floors and the en suite bathroom to the parties’ bedroom. She recalls the respondent saying words to the effect: “[Mr Joss] decided we should block off the old doorway in the hallway and move a doorway to make this bathroom our en suite”. She recalls that in relation to the sale of the farm it was the respondent who was a spokesman in relation to financial matters and it was he who negotiated with her husband. She says that she was always under the impression that the parties were a couple and that they had bought the farm together. “They often looked at each other in a loving way as if they were lovers. I remember at times, when they were showing us their latest renovation or improvement like their new en suite bathroom or kitchen, they would often talk about how they had argued over the choices and decisions to be made. I recall the respondent saying words to the effect of, “I don’t know why I bother because [Mr Joss] always wins in the end”.
Ms AB was cross-examined in the proceedings. Her conclusion that the parties were partners was based on the extent of the involvement of the applicant in the design and performance of improvements to the property; because the parties showed her through the main bedroom to see work done on the en suite and said that “it added to their privacy”. She noted the loving way the parties looked at each other. She recalled on one occasion the parties sat at a table with their hands touching.
Ms AB was a good witness. She made no attempt to embellish her testimony but apparently had clear recollections. The respondent was later asked why Ms AB’s evidence was inconsistent with other testimony in the proceedings, including his and he said something to the effect that she was aggrieved (presumably with the respondent) because the parties had returned her dog, after keeping it at the farm for some time. Importantly, no attempt was made to challenge the evidence of Ms AB or to put to her any reason why her evidence might be wrong or contrived to support the applicant. I accept her as a witness of truth.
Mr B is a close and long standing friend of the respondent. He said that he was in a romantically involved relationship with the respondent from mid-1992 until mid-2001, and then a close friendship from 2001 onwards. Mr B and the respondent went on a number of holidays together, both internationally and nationally. They purchased several properties together, including UU Street in 1994, 3 F Street in 1997, the N Town farm in 1999 and the LL Town property. Mr B worked with the respondent at various gaming outlets in Sydney and R Town. He also assisted with the holiday rental business and work on the N Town and Z Town farms.
Mr B said that he and the respondent were having some difficulties in 1997 and that they then agreed to have an open relationship. Around this time the applicant and respondent met. Mr B said that the applicant would drop over once a week and stay the night at UU Street where he and the respondent were living. Mr B said he was also seeing someone casually but that he and the respondent resumed their exclusive relationship in late 1997. Mr B recalled the relationship between the applicant and the respondent lasting only two to three months in 1997. He said that he only saw the applicant occasionally after this. Mr B said that Mr Joss had no involvement in the purchase, maintenance or improvement of N Town. He said that the applicant worked at Z Town as a WOOFA for a couple of months in 2003 and that the respondent and Mr X involved the applicant in their relationship at this time. Mr B said he was not happy about this relationship and perceived the applicant to be trying to “drive a wedge” between the respondent and Mr X. Mr B recalled that the applicant used the spare bedroom that Mr B normally stayed in and recalled seeing the applicant’s possessions in the room and seeing the bed unmade.
Mr B recalled that the applicant also spent time at the farm in 2005-2006 for approximately two to three months of the year. He said the applicant used the guest bedroom at this time and Mr B would sleep on the couch or with the respondent to free up the guestroom for the applicant. Mr B said he has never observed the applicant to share a bed with the respondent, that he has never seen the parties in any kind of intimate situation and that he hardly saw the parties eat together. He said that in 2004 the applicant purchased an apartment in DD Street, R Town and began living in it – except during holiday periods where he would stay at the farm. He recalled that the parties purchased MM Street, Suburb G pursuant to a deed of understanding and that the applicant and respondent renovated the property.
Mr B was introduced to Mr X in December 2001. He said the respondent and Mr X commenced a relationship at this time that lasted about five years. Mr B was also aware of the three way relationship in 2003-2004 between Mr X, the applicant and the respondent. Mr B deposed that the applicant was in a relationship with Mr Q when he first met him until about 2002/2003. He recalled that the applicant also had a relationship with a friend of his, Gus, in 2000-2001.
Mr B recalled that in 2010 the applicant visited the farm and had a large amount of alternative medicines and self-help books. Mr B said the applicant used the farm as a base to access alternative medical therapists. Mr B said that in October – November 2012 the applicant house-sat the farm with Mr OO, and that he continued to do the gardening and landscaping work every Friday. Mr B observed the applicant and Mr OO to be sleeping in the same room and acting affectionately towards each other.
During cross examination, Mr B was asked if he had a sexual relationship with Mr ST in the 1990’s. Mr B conceded that he had a sexual relationship with Mr ST from end of 1997 to end of 1998, this evidence was contrary to that found in his affidavit where he stated that he and the respondent resumed their exclusive relationship in late 1997. Mr B was also asked about an occasion where the respondent took the applicant to the Holiday Inn at the Suburb TU in Sydney for his birthday. Mr B recalled that he and Mr UV were present and that the night at the Holiday Inn was a reward for meeting his sales targets at the gaming outlet not to celebrate the applicant’s birthday. He denied that he and Mr UV left the applicant and the respondent to stay in the hotel alone, stating that the four men stayed in the room and the applicant and the respondent shared a bed.
Mr B was challenged on various points of his evidence. He denied that the applicant assisted with the renovation and improvement of the F Street property and the Z Town property. However, he conceded that the applicant assisted with the construction of the bridge in the garden at Z Town. He said that the applicant and respondent never shared a bedroom or wardrobe at Z Town and denied that the applicant assisted with locating the LL Town property.
Mr X is a friend and former partner of the respondent. Mr X originally moved to Australia from Country BB on a student visa. He says he and the respondent were in a committed relationship from November 2001 until mid-2006 and that except for a period in 2003, this relationship was exclusive.
During the first part of 2002 the respondent and Mr X spent time together in Sydney, before the respondent moved to R Town later in 2002. At this time Mr X moved in with the applicant and Mr Q in P Street and had a sexual relationship with the applicant. In November 2002 Mr X moved to R Town to live with the respondent. He moved in to the T Town house and then in December 2002, the Z Town farm. Mr X said he had a physical relationship with both the applicant and the respondent in 2003. In February 2003 the respondent applied to the Department of Immigration to obtain a de facto partner visa for Mr X which was later approved.
Mr X travelled to Country BB and Country K with the applicant in October of 2003 before returning to join the respondent in CC Town in November 2003. In 2004 Mr X worked in the head office of the gaming outlet in Sydney, and travelled between Sydney and Z Town to see the respondent. Mr X and the respondent separated in mid-2006 but remained good friends. Mr X said that he had never heard the respondent refer to the applicant as his boyfriend.
Mr VW has known the respondent since the 1980’s and the applicant since 1997. He was a witness for the applicant. He corroborated the applicant’s evidence to the effect that the respondent approached a bar manager at the WX Hotel in about 1997 and asked if there might be a bar position for the applicant. Mr VW agrees, saying that he was a manager at the hotel from 1996 – 1998 and that the respondent said to him, words to the effect: “Are there any bar attendant positions available as my boyfriend [Mr Joss] is seeking employment?”. Mr VW deposed to interviewing the applicant and giving him a casual position after a successful month’s trial, for about six months on Tuesdays, Wednesdays and Thursdays. Mr VW recalls regularly seeing the respondent with a spare motor cycle helmet, ready to collect the applicant at the end of his shift. That last proposition, and the reference to “boyfriend” are entirely inconsistent with the evidence of the respondent. Mr VW was not required for cross-examination. Although on relatively minor issues, the evidence of Mr VW must be preferred over that of the respondent and some of his witnesses.
Ms NN is the respondent’s sister. She moved to live with the respondent at Z Town on 5 January 2008 and stayed there until April 2009. She first heard of the applicant when she moved into the property and was told something to the effect that [Mr Joss] did not live at the property. She said she was keen to know whether she was displacing a resident of the property and that her brother assured her that the people who stayed, including Mr Joss did not live there. The point of Ms NN’s evidence was that she saw and heard nothing to suggest that the parties were in a de facto relationship. It is her evidence that she knew that Mr B had been her brother’s de facto partner from 1992 to 2001 and his best friend since that time and that her brother had a de facto relationship with Mr X from 2001 to 2006. She lives 20 minutes from Z Town and apart from when the applicant was housesitting the farm in 2012 she has not observed him to assist with the holiday letting or the harvest or the maintenance of the farm.
Ms NN had a very difficult time in cross-examination. It was her evidence that she was estranged from her brother for 15 to 20 years during her marriage, which broke down in 2007. Prior to 2008 she had not seen him since 1989. It follows that her evidence about her brother’s past relationships was largely not based on direct observation. She was extremely nervous and said that she suffered dyslexia and had a very poor recollection of dates. She called in at MM Street, Suburb G on two occasions in 2009. On one of those occasions the applicant collected her at the airport and she stayed overnight. She says she was introduced to Mr XY by the applicant on one of those occasions. She was challenged about that but insisted that she had met him. She was asked about the applicant undertaking work around the farm and I understood her to say that she could not recall. She does not recall any references to “[Mr Joss]” or “Irish [Mr Joss]” or to “[Mr Joss] being overseas”. She was asked in cross-examination whether she had heard reference to the applicant building the rock bridge at Z Town and responded “yes” and then went on to say something about being told that her brother had built the bridge she did not recall being told that the applicant was ever in a relationship with her brother or that they invested in properties together. She was not aware of who had set up the letting website of the parties and recalled nothing about the applicant assisting with holiday letting while she was involved in that business. I understood her to concede that while her brother was overseas for two months in 2012 the applicant and Mr XY were housesitting for her brother.
Ms NN was a poor witness. That is not to say that I detected in her any attempt to mislead the court. However, the combination of her estrangement from and lack of any contact with her brother between 1989 and 2008, her admittedly poor memory and the fact that she had no knowledge of the agreed aspects of what, on any view was a close relationship between the parties, rendered her testimony of little value. I should record that although Ms NN was quite distressed during her cross-examination there was nothing inappropriate about the questioning by the applicant’s counsel, quite the contrary. Given her fragile presentation and limited contact with the parties, it was unfortunate that she was called to give evidence in the respondent’s case.
Ms ZZ is another sister of the respondent. She has a very close relationship with the respondent. In March 2014 she said she had recently moved to live at the farm and before then she spoke to the respondent at least weekly on the telephone. In addition she used to visit him between two and four times a year. She has known Mr B for 18 years and says she knows him very well. It is her understanding that the respondent was in a committed relationship with Mr B from 1992 until 2001 and that he was in a relationship with Mr X from 2001 until 2006.
Ms ZZ only knew the applicant as a friend of the respondent although she is aware that in about 2002 or 2003 the respondent, Mr X and the applicant had a three way relationship. In about 2002 she became concerned that the applicant was taking advantage of her brother. Ms ZZ has given evidence in her brother’s case. She cannot be said to be an independent witness. At paragraph 21 of her affidavit she deposed “I believe I first met [Mr Joss] in Sydney in around 1997 when he and [Mr Chadwell] were seeing each other.” Ms ZZ was asked in cross-examination about the expression “seeing each other” and unfortunately said something to the effect that she did know what the phrase meant and that it was not a phrase used by her. Despite being close to her brother, Ms ZZ said she was not aware of the sexual relationship that is agreed to have existed between the parties in 1997 or about their sexual encounter in 2004 or for that matter about the depth of her brother’s feelings for the applicant at various times.
Mr YZ has known of the respondent since about 1987 and was his accountant from that time until about 2007. Initially the respondent and his then partner Mr ZA were clients of an accountancy firm at which Mr YZ worked. Mr YZ prepared tax returns for the respondent and Mr ZA and later for Mr B. He thinks he might have been involved in the establishment of a superannuation fund for the respondent and Mr ZA. He was aware at some point that the parties were investment partners and friends, but no more. He dropped in at Z Town in the second half of 2007 while on holidays and stayed with a friend overnight. He saw no sign and heard no mention of a personal relationship between the parties on that visit. Mr YZ was in regular contact with the respondent particularly around tax time.
There was no real challenge to Mr YZ’s evidence. It is revealing and tends to support the respondent’s case, that he knew of the close personal relationships between the respondent and Mr ZA and later Mr B but was not aware of the existence of a similarly close personal relationship between the respondent and the applicant. It is also revealing that while he performed accountancy work for Mr ZA and Mr B he did not perform any such work for the applicant.
Mr AC has been a friend of the respondent since 2007 when he and his family moved to the R Town area. He estimates that he and his family have visited Z Town on average once a month since 2007. They enjoyed barbecues, played games and frequently attended social events such as birthdays and Christmas celebrations. He was introduced to Mr B soon after meeting the respondent and since that time has frequently seen Mr B when he has visited the respondent. He also met Mr BD in 2010 and observed him to be living with the respondent. He met the applicant in about 2010 and on some visits to Z Town observed the applicant to be living there, in a spare room. Mr AC has never been aware of the respondent being in a relationship, thinking since he met him that he was a single man. From conversations with the respondent over the years he formed the impression that he had had serious relationships with Mr B and with Mr X but had the impression that the parties were nothing more than friends. Mr AC was not successfully challenged in relation to the thrust of his evidence.
Mr BD is a French citizen who first contacted the parties when he went to R Town in January 2010. He met the respondent, and through him, Mr B and on or about 24 January 2010 he and his girlfriend went to live at Z Town at the respondent’s invitation. Mr BD and his partner moved out in April 2012. Mr BD also deposed to living at the farm from November 2012 until January 2013. Mr BD was told by the respondent about his late partner, Mr ZA and his former partners Mr B and Mr X. To Mr BD’s observation, the respondent did not have a boyfriend during the periods they were both at the farm. It is his evidence that the applicant only visited the farm on three or four occasions and for about one or two weeks, each time. The respondent had the main bedroom, Mr BD had the second bedroom next door and the applicant stayed in the third bedroom. Mr BD did not socialise with the applicant during those visits but he was irritated by what he perceived as the applicant’s untidiness and failure to clean up after himself.
Mr BD was challenged during cross-examination. In respect of one aspect of his evidence, he agreed that his affidavit was incorrect. Paragraph 22 of his affidavit has it that he and his wife stayed at the farm from November 2012 to January 2013. He said that the respondent was overseas and the applicant was staying at the farm with his partner Mr OO. It is his evidence that he slept in the studio on the farm, that the applicant and his partner shared the respondent’s bedroom and that three or four backpackers slept in the remaining bedrooms. In cross-examination Mr BD was required to concede that he only stayed at the farm for a few days in November 2012, that a woman called Ms CE was in the studio and that he stayed in his van but only for a few days. It is of concern that there is so much detail in paragraph 22 of the affidavit and that the basic information about Mr BD in that paragraph is incorrect.
Mr DF has been friends with the respondent since January 2000. Mr DF said that in 2001 the respondent told him he had two good friends, Mr B and the applicant, but that he was not in a relationship with either of them. Mr DF visited the respondent and Mr B at the farm in N Town twice. He saw Mr B living there both times and the applicant visiting once. He also visited the respondent at the T Town property in late 2003 and said that the respondent told him about his relationship with Mr X. In 2011 Mr DF visited the respondent at the farm in Z Town and met Mr BD and Mr B. He said that the applicant was not there and there was no evidence of him living there.
In cross-examination Mr DF was asked if he had sex with the applicant on any occasion. He said no. When asked if he denied that he had sex with the applicant he said he could not recall. He was not challenged on any other aspect of his evidence.
Suffice it to say that the evidence of the parties’ witnesses is contradictory and most of them are clearly aligned with the party in whose case they gave evidence. In my view, an exception arises in the form of Ms AB who was not introduced to the parties through one of them alone and the contention about a reason for her to be biased in favour of the applicant was not put to her.
The agreed facts cast a very different light on the parties’ relationship than was observed by many of the witnesses. That said, rather than the private reality, this criterion relates to the impression made on others about the parties’ relationship. For example, in citing no evidence of an affectionate relationship between the parties, Mr B was not necessarily to know of the highly affectionate private written communications that passed between the parties at times.
Taken together the evidence on this issue is neither wholly consistent nor wholly inconsistent with the applicant’s case. Aside from the lay witnesses, compared with the respondent’s relationship with Mr B and later with Mr X there were no official declarations of the relationship between the parties. I have in mind the establishment of a joint superannuation fund between the respondent and Mr B and the formal declaration of a de facto relationship between the respondent and Mr X. In my view it is revealing that the applicant did not declare his relationship with the respondent on any of his many incoming passenger cards.
Apparently, unlike his relationship with Mr OO, the applicant did not publish his relationship with the respondent by taking him to meet his family in Country QQ.
Other considerations
While it is agreed that the parties had a sexual relationship there is an issue between them as to the extent of that relationship. This was a matter that took up a significant part of the submissions in the case. As the cases were initially presented, the applicant contended that the parties’ sexual relationship persisted for periods throughout the 16 years from 1997. From paragraph 7, page 6 onwards of his second affidavit the applicant deposed: “the sexual relationship was very intense for a number of years” and “the respondent and I had sex every time we saw each other in the first few months”, “it was the most sexually charged relationship I had ever been in”. On the other hand, in the respondent’s evidence in chief, he contended that the parties’ only sexual relationship was in late January/early February 1997 he said that the relationship was nothing more than brief and casual and that the applicant was in a continuing relationship with a different partner, Mr Q.
At the end of the trial the applicant maintained his contention on this issue. However the respondent was obliged to concede that in addition to early 1997, the parties joined with Mr X in a three way sexual relationship from March – May in 2003, that he had an ongoing sexual relationship with applicant until September of that year; and that on a visit to the town of EG Town in 2004 the parties engaged in penetrative sexual acts.
On the respondent’s belated case, the latter occasion was the only occasion when there had been penetrative sexual intercourse between the parties.
This matter is relevant for two reasons. It damaged the respondent’s credibility that he was obliged to concede that his initial evidence was wrong and it invited findings on this issue in accordance with the evidence of the applicant.
As I understood his evidence in cross-examination, the respondent’s explanation for the change in his evidence, sought to address both to the attack on his credit and the substantial issue of the nature and extent of the parties’ relationship. The effect of his evidence was that for him, penetrative sex was (and perhaps is) inconsequential or not significant. It was submitted for the respondent that his attitude resulted from the number of sexual partners the respondent has experienced. That was said to explain him forgetting the event in 2004. In addition the respondent variously said that he was drunk on the night and had forgotten the incident.
The respondent said that penetrative intercourse is not of significance in many gay relationships and that in particular it was not a pre-occupation or focus for him or of the applicant. He gave evidence: “We are tops, not bottoms”. I took that to refer to a preference or focus on kissing and cuddling rather than on the parties’ genitals. Happily there was no attempt to develop or to enable probative findings on those matters.
It was put to the respondent in cross-examination that there had been literally hundreds of occasions of anal intercourse between the parties. I could not find that specific evidence in the applicant’s case. However, from paragraph 7 on page 6 of the applicant’s affidavit in reply, filed 11 April 2014 he set out considerable detail about the parties’ sexual relationship.
The respondent having been put to recanting aspects of his evidence in relation to this issue, I am inclined to accept the applicant’s evidence about the sexual relationship of the parties.
Although there is scant evidence about household tasks, very significant renovations were undertaken by the parties on several properties. Much of the physical work was performed by the applicant. I was given to understand that the applicant is highly skilled in building and renovation work.
The applicant worked on the Z Town property. He said that during peak holiday times, the property at DD Street would be rented out and the applicant would live at Z Town. The respondent said this occurred for approximately four weeks over summer each year. The applicant deposed that he never lived at DD Street and that the apartments were rented out “most of the time”, the applicant would live at the Z Town property and do work around the farm. As I have referred to above, the respondent said that he paid the applicant $100 a week for his work and that the applicant paid him $100 a week for his lodging. The applicant disagreed with this although the applicant’s tax returns for 2005 – 2007 list him as a farm hand.
Conclusion
Every relationship is different and s 4AA of the Act expressly provides that there is no essential criterion for a finding that a de facto relationship existed. Importantly, it is not inconsistent with such a finding that one of the parties is in another de facto relationship at the relevant time.
Justice Murphy in Jonah v White [2011] Fam LR 460 at 471 said when referring to the definition of a de facto relationship:
60. In my opinion, the key to that definition is the manifestation of a relationship where “the parties have so merged their lives that they were, for all practical purposes, ‘living together’ as a couple on a genuine domestic basis”. It is the manifestation of “coupledom”, which involves the merger of two lives as just described, that is the core of a de facto relationship as defined and to which each of the statutory factors (and others that might apply to a particular relationship) are directed.
…
66. The issue, as it seems to be, is the nature of the union rather than how it manifests itself into quantities of joint time. It is the nature of the union – the merger of two individual lives into a life as a couple – that lies at the heart of the statutory considerations and the non-exhaustive nature of them and, in turn, a finding that there is a “de factor relationship”.
It is not inconsistent with the applicant’s case that the parties lived under one roof for about six years of their 16 year relationship. It is consistent with the applicant’s case that the parties had a sexual relationship. It is not inconsistent with the applicant’s case that the parties had other relationships and sexual partners. In particular there was the respondent’s relationship with Mr B and the parties’ joint and perhaps several relationships with Mr X. It is not inconsistent with the applicant’s case that the parties travelled overseas but only once did they travel or spend time overseas together. It supports the applicant’s case that the parties owned property together and it is not inconsistent with that case that each of them also owned property with others. On the other hand the respondent’s evidence about the very precise shares of ownership of the property at MM Street, Suburb G, suggests a business arrangement rather than a personal one.
It supports the applicant’s case but it is not inconsistent with that of the respondent that the parties sought out, purchased, renovated and sold or managed several Australian properties. In some instances but not always, the parties provided support to each other through illness. The parties did not always publicly or privately represent their relationship as the type of relationship for which they differently contend in these proceedings. That contradicts the applicant’s case.
The parties jointly purchased two properties but although the respondent provided significant financial support to the applicant, the parties did not have joint accounts or otherwise, intermingle their funds. Unlike his approach with other partners, the respondent did not establish a superannuation fund with the applicant or make an official declaration of their relationship. Those matters favour the respondent’s case.
Taken together, the evidence falls short of establishing that the parties lived in a relationship between January 1997 and December 2012 that meets the statutory definition of a de facto relationship. The onus of establishing a de facto relationship within the terms of the legislation falls to the applicant. Having considered all of the matters referred to in s 4AA(2) of the Act, I find that the applicant has not established that proposition, on the balance of probabilities.
Accordingly, the application seeking a declaration that the parties were in a de facto relationship will be dismissed.
I certify that the preceding two hundred and seventeen (217) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 17 July 2015.
Associate:
Date: 17 July 2015
Key Legal Topics
Areas of Law
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Family Law
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Statutory Interpretation
Legal Concepts
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Jurisdiction
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Statutory Construction
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