Keene & Scofield (No.2)
[2013] FCCA 1107
•2 September 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KEENE & SCOFIELD (No.2) | [2013] FCCA 1107 |
| Catchwords: FAMILY LAW – De facto relationship – application for declaration that de facto relationship existed between applicant and respondent – relationship between parties lasted approximately six years – parties own adjoining properties in suburban Adelaide – whether parties had common residence and degree of commonality – disputed evidence as to sleeping arrangements – disputed evidence as to degree of financial interdependence – parties holidayed and socialised together – evidence regarding public aspects of relationship – nature of applicant’s involvement with respondent’s children – definition of de facto relationship – were parties living together on a genuine domestic basis – burden of proof – whether applicant has satisfied onus of proof as to existence of de facto relationship. |
| Legislation: Evidence Act1995 (Cth), s.140 |
| Keene & Scofield [2013] FCCA 540 Keene & Scofield (No.2) [2012] FMCAfam 1357 Jonah v White (2012) 45 FamLR 460 Corporation of the City Enfield v Development Assessment Commission (2000) 199 CLR 135 Taisha v Peng (2013) 48 FamLR 150 Moby & Schulter (2010) FLC 93-447 Shelley & Markhov [2012] FCWA 68 Jones v Dunkel (1959) 101 CLR 298 RPS v R (2000) 199 CLR 620 |
| Applicant: | MR KEENE |
| Respondent: | MS SCOFIELD |
| File Number: | ADC 983 of 2011 |
| Judgment of: | Judge Brown |
| Hearing dates: | 31 January, 1 February, 12, 13 & 14 February, 10 April & 10 May 2013 |
| Date of Last Submission: | 10 May 2013 |
| Delivered at: | Adelaide |
| Delivered on: | 2 September 2013 |
REPRESENTATION
| Solicitors for the Applicant: | Angela Ferdinandy Solicitor then In Person from 10 April 2013 |
| Counsel for the Applicant: | Mr Berman SC then In person |
| Counsel for the Respondent: | Mr McGinn |
| Solicitors for the Respondent: | Howe Martin & Associates |
ORDERS
The application and the response herein are dismissed save as to the issue of costs.
IT IS NOTED that publication of this judgment under the pseudonym Keene & Scofield (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 983 of 2011
| MR KEENE |
Applicant
And
| MS SCOFIELD |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Keene “the applicant” and Ms Scofield “the respondent” have known each other since mid-2004. Undoubtedly, there is some form of relationship between the two. These proceedings are concerned with characterising the nature of this relationship.
From Mr Keene’s perspective, he and Ms Scofield were a committed couple from (omitted) 2006 onwards, who shared every aspect of life together and who were engaged to be married. He asserts that he was a surrogate parent for Ms Scofield’s two children – X born (omitted) 1993 and Y born (omitted) 1999.
From Ms Scofield’s perspective, the relationship between the two has waxed and waned in its degree of intimacy but never reached a point where it could be considered to be a coupling of two individuals into a common unit. At times, she would categorise Mr Keene as her boyfriend, at others an ardent suitor, whom she did not accept. At still other times, she would characterise Mr Keene as a violent and abusive person, in respect of whom she was both fearful and in a state of subjugation.
Ms Scofield concedes that at times, Mr Keene was her lover. Certainly, he was and remains her neighbour. The parties regularly holidayed and socialised together. In addition, they have some financial connection with one another – Ms Scofield would say as a result of Mr Keene’s exploitation of her.
Although Ms Scofield concedes, as she must, that she and Mr Keene know each other very well and have many forms of connection with each other, it is her case that she has always had reservations about Mr Keene’s character and has never fully committed herself to him, always hanging back from joining with him, as was his desire, in a couple.
The factual history of this case turns on two adjoining houses. Property C1, where Ms Scofield has lived since 1992, with X and Y, and Property C2, which Mr Keene purchased in September 2006 – he asserts as part of a joint enterprise with Ms Scofield, as she provided $114,892.00 towards its purchase price. Later, this sum was secured by way of a second mortgage on C2.
Ms Scofield’s position is that the parties maintained separate and distinct households at Property C1 and Property C2 respectively. She maintaining financial responsibility for her house; and Mr Keene for his. One of the main factual issues, in this case, concerns the degree of Mr Keene’s involvement with Ms Scofield’s household and family.
It is Ms Scofield’s position that Mr Keene and she did not share a common residence at Property C1. Mr Keene’s position is that he was an integral member of Ms Scofield’s immediate family and took most of his meals at Property C1, where he also habitually slept. It is also his case that he discharged many and varied parental responsibilities for both X and Y, with Ms Scofield’s imprimatur.
On 1 June 2010, there was an incident involving Mr Keene and Ms Scofield and her children, in the driveway of Property C2. Ms Scofield asserts that Mr Keene ran her over with his car. Mr Keene asserts it was an accident. It is Ms Scofield’s case that she was shocked and frightened by this event and determined to break off all forms of engagement with Mr Keene.
Regardless of how this incident is characterised, it is common ground that, on 4 June 2010, Ms Scofield arranged for a fencing contractor to construct a fence between Property C2 and Property C1. Previously, it had been possible to walk unimpeded between the two households.
It is Ms Scofield’s case that the construction of the fence represented an unequivocal sign that whatever relationship had existed, up to that time, between her and Mr Keene, what happened on 1 June 2010 had brought it to an end.
As I have explained in previously delivered reasons for judgment,[1] the date has technical significance so far as litigants, who live in South Australia, are concerned.
[1] See Keene & Scofield & Anor [2013] FCCA 540 at [10]
1 June 2010 falls prior to the commencement of Commonwealth Powers (De facto Relationship) Act (2009) South Australia, which was the necessary legislation, pursuant to which the State of South Australia referred its power to make law relating to the breakdown of de facto relationships to the Commonwealth. It commenced on 1 July 2010.
It is Ms Scofield’s case that, even if a de facto relationship existed between the parties, which she does not accept, this relationship ended on 1 June 2010 and accordingly Mr Keene has no legal standing in this court to bring proceedings to alter property interests between the two.
On the other hand, it is Mr Keene’s position that, after a brief interruption, the parties soon resumed their previous level of intimacy. He asserts that he continued to socialise with Ms Scofield; sleep in a shared bed at Property C1; and talk to her constantly via mutually initiated mobile telephone calls.
Mr Keene injured himself at his work in August 2010, when he fell from a ladder. He was admitted to hospital as a result and Ms Scofield was nominated, in hospital records, as his next of kin. It is Mr Keene’s case that Ms Scofield nursed him because of the parties’ shared commitment towards one another. Ms Scofield asserts that she provided some limited care for Mr Keene because of feelings of common decency.
Much turns on the sum of $114,892.00. Ms Scofield asserts that the sum was lent by her to Mr Keene in expectation that it would be reimbursed in full, with interest. This was the rationale for a second mortgage document being executed, which was registered on the title of Property C2 but later discharged.
Ms Scofield planned to sue Mr Keene for the debt, in the District Court of South Australia until restrained by way of a non-suit injunction issued by the court on 11 December 2012.[2] The moneys remain outstanding from Ms Scofield’s perspective.
[2] See Keene & Scofield (No2) [2012] FMCAfam 1357
Mr Keene asserts that it would be grossly unfair to him, if the moneys advanced by Ms Scofield, are treated as a debt arising between two contracting individuals. It is his case that he made many varied and significant contributions, including financial ones, which have benefitted Ms Scofield and her children during the course of the parties’ approximately six year long relationship.
It is Mr Keene’s case that the intimate relationship between him and Ms Scofield fell into difficulties in late 2010. At this time, he began to renovate Property C2, which had been largely uninhabitable, up to this time. He asserts that he had used Property C1, as premises for his (omitted) company, as he habitually slept at Property C1. In February of 2011, Ms Scofield returned to him a bed and bedding owned by him, which had been in Ms Scofield’s bedroom at Property C1.
Essentially, it is Mr Keene’s position that, considerations of justice and equity, arising from the nature of his relationship with Ms Scofield, dictate that there be an alteration made in the respective proprietorial interests of the parties in the property located at Property C2.
For this court to have jurisdiction to deal with his application, it is necessary a declaration be made under section 90RD of the Family Law Act 1975 that a de facto relationship existed between him and Ms Scofield.
In addition, given that it is common ground that he and Ms Scofield were only involved with one another, in the State of South Australia, it is necessary for the court to find that such a relationship subsisted after 1 July 2010.
If such a declaration is made, it would empower this court to resolve the property dispute claims, which Mr Keene wishes to bring against Ms Scofield. In particular, he seeks that the mortgage, in her favour, secured against Property C1 be set aside so that Mr Keene may retain the property unencumbered in recognition of various financial and non-financial contributions, which he asserts have benefitted Ms Scofield and which have arisen as a result of the de facto relationship between the two.
For her part, Ms Scofield denies that any such de facto relationship has ever existed between the parties but, if the court finds otherwise, she asserts that the relationship ended in early June of 2010, prior to the commencement of applicable legislation pertaining to the State of South Australia.
It is a necessary corollary of Ms Scofield’s case that the appropriate jurisdiction for her to be recompensed for the moneys advanced by her to Mr Keene, which assisted in the purchase of Property C2 is in the District Court of South Australia. As such, it is implicit in her position that she seeks the discharge of the non-suit injunction.
These reasons for judgment are directed to resolving this “jurisdictional fact”.[3] At an earlier stage, the parties agreed that it was expedient to bifurcate the case into components – the first as to whether a de facto relationship existed between the parties; the second, if required, as to what alteration of property rights should be made.
[3] See Jonah v White (2012) 45FamLR 45 at 460
The hearing into this first issue, took place over seven days, where both Mr Keene and Ms Scofield provided extensive evidence and were each exhaustively cross-examined by the other’s counsel.
In addition, Mr Keene called his mother, Ms R to give evidence regarding her view of the nature of the relationship between the parties. For her part, Ms Scofield called her now adult daughter X, as well as her brother-in-law Mr A.
For the first 5 days of the hearing, Mr Keene was represented by senior counsel, Mr Berman (as he then was). Ms Scofield has been represented by Mr McGinn of counsel throughout. Given his lack of legal training, it was difficult for Mr Keene to make his final submissions. However, for the majority of the hearing, he was represented by highly experienced lawyers, as was Ms Scofield throughout.
The legal principles applicable
As the parties have never been married to one another, before the court can exercise its power to alter property rights between them, it must declare that a de facto relationship existed between them, at a time after the commencement of the applicable Commonwealth legislation, which is contained in Part VIIIAB of the Family Law Act 1975.
The power to make a declaration, as to the existence or otherwise of a de facto relationship, arises pursuant to section 90RD(1) of the Act. Pursuant to the section, if an application is made for the alteration of property interests [section 90SM], following the breakdown of a de facto relationship: “the court may, for the purpose of those proceedings … declare that a de facto relationship existed, or never existed [between the applicant for such a declaration and another specified person]”.
The power to make such a declaration is refined by section 90RD(2), which makes reference to other jurisdiction preconditions relevant to the exercise of the court’s power in respect of de facto relationships. They include the power to make declarations regarding the following:
·The period or periods of the de facto relationship;
·Whether there is a child of the de facto relationship;
·Whether one of the parties to the de facto relationship made substantial contributions;
·When the de facto relationship ended;
·Where each of the parties to the de facto relationship was ordinarily resident during it.
In Jonah v White[4] Murphy J held that the making of a declaration, pursuant to section 90RD, does not involve the exercise of a judicial discretion. Rather, it is an issue to be resolved by the determination of fact. He said as follows:
“The ultimate question is in the nature of a jurisdictional fact. In Corporation of the City Enfield v Development Assessment Commission[5] the High Court held:
The term “jurisdictional fact” (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision maker to exercise a discretion.”
[4] See Jonah v White (2012) 45 Fam LR 460 at 466
[5] See Corporation of the City Enfield v Development Assessment Commission (2000) 199 CLR 135 at 148
In this particular case, the relevant “jurisdictional fact” is set out in section 4AA(1) of the Act, which provides the applicable definition of a de facto relationship. The section reads as follows:
(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.”
In this case, there is no dispute that Mr Keene and Ms Scofield are not married to one another and have never been so. In addition, they are not related by family. Accordingly, this case turns on the circumstances of their relationship, particularly whether they had a relationship, as a couple living together, on a genuine domestic basis.
Section 4AA(2) is prefaced by the heading “Working out if persons have a relationship as a couple”. Thereafter the following circumstances are delineated, which may denote the existence of such a relationship. The list provided is not exhaustive and the factors on it are not specifically noted to be directive. They are as follows:
(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.
In Taisha v Peng[6] Cronin J held that section 4AA(1) contained the mandatory requirements “for the existence or otherwise of a de facto relationship, whilst the matters listed in section 4AA(2) were to be utilised as a guide only for the purposes of the preceding sub section.”
[6] See Taisha v Peng (2013) 48 FamLR 150 at 152
Mushin J in Moby & Schulter[7] considered that the question of whether the parties concerned were in a de facto relationship “must be considered on a case-by-case basis without circumscribing any particular factor”. Accordingly, it is potentially erroneous for the court to attempt to isolate individual factors and tribute relative degrees of importance. It is the “composite picture” which is important.[8]
[7] See Moby & Schulter (2010) FLC 93-447 at 85,063
[8] See Taisha v Peng (supra) at 153
In Jonah Murphy J indicated that “the key” to the definition contained in section 4AA(1) was:
“…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.”[9]
[9] See Jonah v White (supra) at 471
Accordingly, Mr Keene must establish that he and Ms Scofield were a couple and then establish that they lived together in a genuine domestic relationship. In Taisha v Peng Cronin J considered that the word “genuine” did not add to the definition in question. One of the definitions of “genuine” is “properly so called; not sham.”[10]
[10] See the Australian Oxford Dictionary
In the context of this case, I agree that the adjective “genuine” is not particularly germane. It is not asserted by either of the parties that they ever pretended to be a couple or posed as such to derive some benefit, such as an entitlement to social security or subsidised housing.
In Moby & Schulter Mushin J considered that the concept of “genuine domestic basis” was not a term of art but must be given its ordinary meaning. In particular, he considered that due regard must be had to the circumstances of modern life, which necessarily has the potential to throw up diverse relationships outside of the norm, which could nonetheless be considered genuine domestic ones, in common parlance.[11]
[11] See Moby & Schulter (supra) at 85,067
The existence or otherwise of a marriage is established by one unequivocal event, which is readily memorialised by official edict. No one event is necessarily definitive of the existence of a de facto relationship. In Moby Mushin J made the following comments, which seem to me to be germane to the present case:
“The parties' relationship may be seen as having gone through a number of different phases. The facts applicable to each of those phases may be seen as having a different bearing on the essential issue of whether the parties were in a de facto relationship. Accordingly, it is appropriate to consider the facts of the parties' relationship in those different phases and then step back and take an overview of the entirety of the facts.”[12]
[12] See Moby & Schulter (supra) at 85,067
In this case, both Mr Keene, but particularly Ms Scofield, assert that the relationship went through a number of different phases. It also clearly had a number of different aspects. It will be necessary for me to outline the various phases of their relationship and step back from it to determine what was the nature of their relationship together, from the totality of the facts arising. It is at the end of that deliberation that I must be satisfied as to the existence of a domestic relationship.
Domestic derives from the latin domus, literally a home. As an adjective, it pertains to the home, household or family affairs.[13] In this context Cronin J in Taisha v Peng said as follows:
“… there must still be evidence of a domestic relationship. Mushin J in Moby said it was not a term of art but had to be given its ordinary meaning. I respectfully also adopt that because, having regard to s 4AA(4), the Court can take a wide discretionary view of the way in which the parties themselves conducted their relationship. Even having said that however, a domestic relationship must be one in which there are activities of running a household or shared households. That is, something must be seen to be related to domesticity which refers to home conditions and arrangements. For example, it could be indicated by people coming and going as if entitled to use and share the home’s facilities which is quite distinct from a boarding house or backpacking hostel where individuality reigns.
A couple therefore living in a domestic relationship is the opposite of a couple of individuals.”[14]
[13] See the Australian Oxford Dictionary
[14] See Taisha v Peng (supra) at 153
It is clear from the content of section 4AA(5) that a de facto relationship does not have to be exclusive in order to satisfy the definition contained in subsection (1). A de facto relationship can exist, even if one of the person’s is legally married to someone else or even in another de facto relationship.
In this context, Murphy J did not consider that temporal or quantative aspects were central to the existence or otherwise of a state of coupledom existing between the parties concerned. Rather, in his view, the issue turned on the nature of the relationship in question. In Jonah he said as follows:
It seems to me to be clearly established by authority that the fact that, for example, the parties live in the same residence, for only a small part of each week does not exclude the possibility that they are “living together as a couple on a genuine domestic basis” or that the maintenance of separate residences is necessarily inconsistent with parties having a de facto relationship. So much is, in my view, clear from the statutory recognition that parties to a relationship can be married but also be in a de facto relationship.
The issue, as it seems to me, is the nature of the union rather than how it manifests itself in quantities of joint time. It is the nature of the union – the merger of two individual lives into 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 facto relationship”.[15]
[15] See Jonah v White (supra) at 472
Evidentiary principles applicable
The standard of proof to be applied in this case is the balance of probabilities.[16] Accordingly, given the existence of the jurisdictional proviso, the onus is on Mr Keene to prove, on the balance of probabilities, that a de facto relationship existed between him and Ms Scofield.
[16] See Evidence Act (1995) (Cth) at section 140
Mr Keene must positively prove the existence of the defining characteristics, of such a relationship, rather than Ms Scofield being required to prove the negative.[17] Section 4AA(4) provides as follows:
“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.”
[17] See Shelley & Markhov [2012] FCWA 68 at [7]
In Taisha Cronin J considered that this particular subsection does not “ameliorate” the requirement for an applicant to prove his or her case to this civil standard of proof.
As has previously been indicated, the major witnesses in these proceedings were the parties themselves. Pursuant to section 4AA(2)(a) the public aspects of a relationship between individuals may be indicative of the nature of that relationship, particularly whether it amounted to a de facto relationship.
In this case, the parties socialised and holidayed with others. At one stage, at least, they consulted a psychologist, Ms L, in respect of issues pertaining to their relationship. From time to time, Mr Keene employed a bookkeeper, who performed work for his business from Property C1.
One of the significant evidentiary issues, in this case, concerns the long term sleeping practices of the parties and whether they maintained some form of common residence and indeed held them themselves out to the world at large as a couple.
Mr Keene has not called his bookkeeper; Ms L; any of his friends or acquaintances held in common with Ms Scofield; or indeed any of the parties’ neighbours from Property C1. This is a cause for comment by counsel for Ms Scofield, who envokes the so-called rule in Jones v Dunkel.[18]
[18] See Jones v Dunkel (1959) 101 CLR 298
The principle, relating to the case, has recently been restated by the High Court in RPS v R[19] as follows:
“In a civil trial there will very often be a reasonable expectation that a party would give or call relevant evidence. It will, therefore, be open in such a case to conclude that the failure of a party (or someone in that party’s camp) to give evidence leads rationally to an inference that the evidence of that party or witness would not help the party’s case. …”
[19] See RPS v R (2000) 199 CLR 620
It will be necessary to return to the potential application of this principle to the case, when all the relevant evidence has been tabulated.
The evidence
The applicant relies upon the following documents:
i)An affidavit of himself filed 3 February 2012;
ii)An affidavit of his mother, Ms R filed 9 February 2012.
The respondent relies on the following documents:
i)An affidavit of herself filed 24 January 2013;
ii)An affidavit of her daughter, X filed 24 January 2013;
iii)An affidavit of her brother-in-law Mr A filed 25 January 2013.
As well as these affidavits, prepared for trial, each party made reference to other affidavits prepared at earlier stages of the proceedings.
In addition, a number of documents were tendered into evidence. Amongst other documents, these included photographs of the bathroom and kitchen at Property C2; Mr Keene’s diary; Telstra accounts; and some receipts. The relevance of these documents will be outlined in due course.
The evidence contained in the affidavits outlined above; the additional oral evidence elicited during the various days of hearing; and the various tendered documents; comprise the evidence in the case. It is on the basis of this evidence, on the balance of probabilities, that I must determine the jurisdictional issue as to whether or not a de facto relationship existed between the parties and if so, the period or periods, during which it subsisted.
Many significant issues, in this case, turn on credit, as the respective positions of the parties are polarised in the extreme. Nowhere is this more exemplified than in regards to the issue of where Mr Keene lived from October of 2006 onwards.
In this regard, Mr Keene deposes as follows:
“We formed a relationship, but did not move in together until about October 2006 when I moved into her home, which was a three bedroom bungalow with one bathroom. Ms Scofield and I slept in the main bedroom and the children had a room of their own. All of the occupants complained it was cramped and small.”[20]
[20] See Mr Keene’s affidavit at paragraph 17
Although Ms Scofield concedes that Mr Keene slept over, at Property C1, from time to time, particularly when her children were spending time with their father,[21] she categorically denies that she and Mr Keene ever “lived together” at her home. It is her case that Mr Keene’s place of residence, at all material times, was Property C2.
[21] See Ms Scofield’s affidavit filed 24 January 2013 at paragraph 95 & 106
At times, the positions of the parties were so diametrically opposed, on what can only be considered to be crucial issues – such as where Mr Keene physically lived – and in respect of which there can be little scope for equivocation or uncertainty, that I formed the view that the only explanation for this extreme divergence of view was that one of the parties must be consciously lying. At best one of them must be so hopelessly deluded to such an extent that he or she can only be described as a fabulist.
It is difficult to assess, who this was. Mr Keene presented as a person, who was deeply wounded by Ms Scofield’s rejection of his account of the parties being a happy, loving and committed couple. At other times, he presented as puzzled and bemused, at suggestions put to him, that he and Ms Scofield had, at best, been no more than boyfriend and girlfriend.
Mr Keene had a mastery of minor detail, about such things as where he and Ms Scofield had dined and about items, which he had purchased for her and her family. This was impressive. However, he was not able to provide equally compelling evidence about major emotional issues in the parties’ allegedly shared lives. His evidence lacked depth and texture in this regard.
At other times, particularly in respect of his evidence regarding his various business dealings, as they impinged upon Ms Scofield, particularly the issue of the second mortgage executed in her favour, I found his evidence singularly unimpressive. For reasons upon which I will expand in due course, I did not find his actions in respect of the mortgage to be completely above board.
Mr Keene did not seem to be to me to a person who was completely transparent in his business affairs. To the contrary, at times, he seemed to be somewhat cavalier about his business obligations. As such, it did not strike me as improbable that Mr Keene might be tempted to bend the truth in these proceeding, with the ultimate aim of gaining some form of financial advantage for himself from them.
In addition, it is my impression that Mr Keene is an emotionally needy person, who has invested much in his pursuit of a relationship with Ms Scofield. It would not be easy for him to accept her rejection of him. It was Shakespeare who coined the expression “love is blind”. [22] Although, I accept it will be hurtful to him, it is my view that Mr Keene’s infatuation for Ms Scofield may have blinded him to the true nature of her attitude towards him.
[22] See The Merchant of Venice Act 2 Scene 6
Whatever she might have felt about him in the past, Ms Scofield’s antipathy for Mr Keene is now palpable. It is not an understatement to say that she currently hates him. This is a sentiment, which she shares with her daughter X.
The tenor of Ms Scofield’s case is that Mr Keene is an unreliable and manipulative person, who insinuated himself into her life and, out of a combination of politeness, diffidence and sometimes in a state of intimidation, she allowed him to remain a feature in her life, but not a significant or permanent one and certainly not one which was there with her acquiescence.
Her depiction of Mr Keene is of a person who moved next door, without reference to her, and who was incapable of “taking no for an answer” in terms of how she felt about him or of reading the true nature of the relationship between the two of them.
It is her case that she always had reservations about Mr Keene because of the exploitative way, in which he approached her. In these circumstances, it seems unexpected that she did not act sooner to excise Mr Keene from her life but rather continued to socialise with him and accept things from him. To some extent, the parties exploited one another, from time to time, but in different ways. She materially. He emotionally.
Ms Scofield could not remember many of the meals and social events, which Mr Keene has recalled in such specific detail. In this regard, some of her denials were unconvincing. At times, I did not believe her. The parties obviously did socialise together extensively and had many meals together in a variety of establishments.
Mr Keene attended regularly at Scofield family holidays and other important family occasions, such as birthdays and Christmas with Ms Scofield and X and Y. He is a feature of many holiday “snaps” taken on these occasions. He was an intimate member of the family, from time to time and certainly much more than a casual acquaintance.
Accordingly, in my estimation, neither party was totally convincing in their evidence to the court. In such circumstances, it would be artificial, in the extreme, for me to determine that I invariable preferred one party’s account of events, over the others. Rather, it will be necessary for me to carefully analyse the evidence and make findings about individual issues.
As I have already observed, there can be no doubt that the parties know each other very well indeed and have done so over a number of years. For obvious reasons, they are the persons, who are best placed to know what was the intimate detail of their lives together, particularly the level of their mutual commitment for one another. Necessarily, much of domestic life occurs in the private confines of the home, behind closed doors and, as such, is not amenable to independent scrutiny or sources of corroboration.
Given their currently acrimonious circumstances, exacerbated by financial concerns, it is inevitable that each party’s respective recollections of past events will have been subject to some level of selective and self-assisting revision. Although it is possible that such revision has occurred unconsciously and without artifice, it must mean that the court should approach the evidence of each of them with caution.
I also recognise that it is trying and intrusive to have to revisit such deeply personal issues in the artificial confines of the witness box. However, what is striking about this case is the absence of other witnesses, whom one would expect would be able to provide some texture and context, against which the parties’ polarised accounts could be set. In this case, the only such witness is X. She is most assuredly in her mother’s camp.
As such, given her obvious bias, her evidence was not always particularly helpful. However, at the end of the day, the evidentiary burden lies with Mr Keene. Ms Scofield is not required to negate his assertion regarding the existence or otherwise of a de facto relationship between the two by calling evidence in rebuttal.
One of the more significant evidentiary issues arising in the case concerns the emotional topography of the parties’ involvement with one another. Ms Scofield would categorise Mr Keene as having being both physically and psychologically violent towards her during the course of their association with one another.
In essence, she asserts that he has a controlling and manipulative personality. It is her case that he insinuated himself into her life, at a time when she especially vulnerable, which was around about the time she was seriously ill and undergoing major cardiac surgery. At this time, she was unable to defeat his self-imposed assumption upon her of the role of her boyfriend.
On several specified occasions, Ms Scofield has deposed that Mr Keene has raped and otherwise assaulted her. These matters have been the subject of a complaint to police, which resulted in an extensive statement being taken from Ms Scofield.[23] The statement was made on 27 March 2012, long after the incidents complained of and a significant period after Mr Keene’s application was instituted in this court.
[23] See Annexure U to Ms Scofield’s trial affidavit.
Mr Keene categorically refutes any suggestion that he has ever behaved inappropriately or violently towards Ms Scofield. It is his case that that Ms Scofield’s statements to police are tactically motivated and intended to deter him from pursuing his claim in this court. The charges against him have been withdrawn by police.
In her statement to police, Ms Scofield asserts that the relationship between the parties began as a casual one, which involved sex. She asserts that she tried to break it off because of Mr Keene’s behaviour towards her, which made her feel uncomfortable. However, she did not end the relationship because, in her words, “it was almost easier for us to have us stay together, than to fight for us to be apart.” [24] She asserts that she did not want to be rude to Mr Keene.
[24] Ibid at page 3
In my assessment, Ms Scofield is not an especially robust person, either physically or emotionally. On the other hand, my view of Mr Keene, as a result of my observations of him in the witness box, is of an assertive person. He is also a person who is attracted to the making of flamboyant or generous gestures, which at times are unsolicited. Accordingly, I do not dismiss Ms Scofield’s assertion that there was a power imbalance, in the parties’ relationship, from its earliest stages.
From Ms Scofield’s perspective, this power imbalance became more pronounced after her cardiac surgery in 2006. She had been advised by her surgeon that she may well not survive the operation required. It took her a significant period of time to recover from the surgery and she was worried that the suture to her aorta might rupture at any time. As such, I accept that she was emotionally preoccupied with concerns relating to health and did not feel sufficiently resilient to engage in a confrontation with Mr Keene.
Of this period in her life, Ms Scofield said as follows to police:
“During this time Mr Keene was around. He would come and visit me and hang out with me…I was so unwell at the time…My family were very hospitable to him…I think that is just sort of how it happened, but I think it was because I was so incredibly sick. It felt as though he cared about me. We became closer I think after my surgery and we ended up staying together as boyfriend and girlfriend. I think it progressed. I sometimes think it progressed because I just didn’t have the energy to fight it.” [25]
[25] Ibid at page 17
Thereafter, Ms Scofield complains that Mr Keene subjected her to unwanted and forced sexual intercourse on at least two occasions. She made a complaint about each such incident to a friend, whom she did not call to give evidence in corroboration in the context of these proceedings. She did not otherwise complain to any official sources, until well after whatever was her relationship with Mr Keene was well and truly over.
Essentially, it is her case that she was trapped in some form of relationship with Mr Keene, certainly not a mutually loving and supportive one, from which she felt powerless to escape and certainly not one which she would describe as a state of happy or consensual “coupledom”. From her perspective, she was trapped. She portrays herself as being the victim of Mr Keene’s coercive and unwanted advances. Again to police, she said as follows:
“Looking back at my relationship with Mr Keene, I feel embarrassed and ashamed that I did not fight harder to end what we had. I can see now that Mr Keene was really narcissistic and an egocentric person. He was extremely controlling towards me and very nasty at time…I feel that Mr Keene’s treatment towards me caused my self esteem to plummet. I was embarrassed about what was going on…I felt powerless to leave the relationship because of the way Mr Keene made feel. I was scared of what he would say or do, or just make things incredibly hard for myself and my children if we were to part…I blame myself that I put up with this treatment form Mr Keene. I blame myself that I stayed with him for so long.” [26]
[26] Ibid at page 42
In statements such as these, Ms Scofield acknowledges that she had some form of relationship with Mr Keene. However, in retrospect, from her perspective, it was clearly a very unhappy and exploitative relationship and not one which developed into a de facto relationship.
The chief difficulty arising from her current position is that it can easily be suggested that such a characterisation has originated only in the context of these bitterly contested proceedings because of their financial implications for her and, as such, is a recent invention on her part.
Accordingly, it is only to be expected that Mr Keene will assert that the recent categorisation of the parties’ relationship, by Ms Scofield, is a matter of strategic convenience on her part, rather than a truthful recounting of the true state of affairs between them historically.
My function, in these proceedings, is not to pass moral judgement on either party in respect of their respective conduct during the years of their involvement together. Rather, I must stay focussed on the existence or otherwise of the essential jurisdictional fact required under section 4AA(1), remembering that many marriages and indeed de facto relationships themselves can be unhappy, dysfunctional and exploitative and these factors, of themselves, do not affect the validity of the relationship in question.
However, on balance, for reasons upon which I will expand, I accept that there was a significant power imbalance in the parties’ involvement with one another and this power imbalance favoured Mr Keene to a very significant degree. I accept Ms Scofield’s account of herself as an unassertive and vulnerable person and of Mr Keene as a pushy, cocksure person, who would not accept being rebuffed by her.
As such, I do not reject her account of her emotional response to the situation in which she found herself, namely a combination of embarrassment, shame and at times fear. In my assessment, Mr Keene is a very determined and focussed person in the pursuit of what he wants.
In these circumstances, the absence of independent evidence of Ms Scofield’s complaints about Mr Keene is not fatal to their overall validity. As such, I do not reject her assertion that Mr Keene, to a large extent, preyed upon her weaknesses and took advantage of her from time to time.
Clearly, in my view, Mr Keene had a great deal invested in his involvement with Ms Scofield, whom he regarded as an attractive and desirable woman. He wanted to impress her from time to time. Almost certainly, he wanted her to think that he was more successful than he actually was.
In this context, he was prone to make unsolicited gifts and other financial gestures to Ms Scofield, such as including her on his mobile phone account or offering her a credit card. From time to time, it suited Ms Scofield to take advantage of his largesse. However, she also rebuffed some of these unsolicited advances, such as the offer of a credit card.
I do not consider, on the basis of the evidence available to me, that either party had a clear idea of what their relationship was or where it was going. Certainly, they never had an honest or frank conversation about it. Ms Scofield was reticent about potentially upsetting Mr Keene and was content to use him, when it suited her. Mr Keene, given his aspirations in regards to Ms Scofield, was not in an emotional position to be able conduct a robust analysis of the true nature of the relationship.
In all these circumstances, it seems to be more likely than not that it is Ms Scofield who has the greater level of insight into the true nature of the parties’ relationship together. Although she is likely to have exaggerated some of Mr Keene’s failings, I consider her to be the generally more reliable witness, particularly in regards to financial matters.
a) Background
Mr Keene was born on (omitted) 1966. He is a self-employed (omitted). He has not been previously married and has no children.
Ms Scofield was born on (omitted) 1969. She is a part-time (omitted). In (omitted) of 2006, her health was seriously compromised, when she was diagnosed with an aortic aneurysm, which was surgically repaired.
Ms Scofield was previously married to Mr Scofield. She married him on (omitted) 1989. They separated in (omitted) of 2003 and divorced in (omitted) 2008.[27] He is the father of X and Y. Ms Scofield has lived at Property C1 since 1992. Mr Scofield now has no interest in the property.
[27] Mr Keene asserts the divorce was in 2005 (see his affidavit at paragraph 8). Nothing was made of this discrepancy in the evidence. In my view, Ms Scofield’s evidence is to be preferred.
Mr Keene commenced proceedings, in this court, on 16 March 2011. Initially, his application only pertained to issues to do with X and Y. He sought to spend time with the children on one weekend per month, during school terms, as well as for a week at a time, during each school holiday.
In his affidavit, filed in support of his application, he styled himself as the children’s “stepfather” and a person who was significant in the lives of the children. He asserted that X and Y referred to him as their “stepdad” and he referred to them respectively as “my daughter” and “my son”.
Ms Scofield responded to this application, on 26 May 2011. She sought the dismissal of Mr Keene’s application but that, in addition, an injunction issued restraining Mr Keene from in any way contacting or being within 50 metres of her. She sought a similar injunction in respect of X and Y. She categorised Mr Keene as having behaved in an irrational manner, of late, particularly in his desire to spend time with her and the children, which was not reciprocated.
Ms Scofield deposed that Mr Scofield had always paid the entirety of X and Y’s private school fees and provided appropriate health benefits for them. I accept this evidence, as Mr Keene does not refute it.
It is also Ms Scofield’s evidence that X and Y have a close and loving relationship with their father, spending regular and extensive periods of time with him. Again, I accept this evidence. It is Ms Scofield’s evidence that she and Mr Scofield have an amicable and cooperative relationship, as separated parents.
It is Mr Keene’s case that the parties ended their de facto relationship in late 2010. It is common ground between the parties that, on (omitted) 2011, Mr Keene tied a number of novelty helium balloons to Ms Scofield’s motor vehicle, whilst it was parked in the driveway of Property C1. In addition, it is agreed that Mr Keene left a large sign reading “Mr Keene ♥’s X and Y” in the front garden of her home.
From Ms Scofield’s perspective, this was frightening and irrational behaviour. Although Mr Keene accepts that the relationship between the parties had terminated, it is his position that he placed the balloons to mark the fifth anniversary of the surgery to repair Ms Scofield’s aorta and it was a gesture made with good heart. Ms Scofield reported the incidents to the police.
Given my assessment of Mr Keene as an emotionally needy person, with a propensity to grandiloquent gestures, particularly where Ms Scofield and her family are concerned, I can understand why Ms Scofield reacted in the way she did. The incident also confirms my view that Mr Keene is not adept at reading the emotional content of a situation and responding appropriately to it.
In the context of Mr Keene and his application to spend time with Y and X, the parties, including Mr Scofield, were referred to a child inclusive family dispute conference, with Family Consultant Mr P, on 30 August 2011. This was as a result of an order made on 17 June 2011.
At the time of this conference, X was aged 17 years and 11 months. She did not take part in the conference. Y was aged 12. He expressed, what was described by Mr P as high anxiety and bewilderment about Mr Keene’s interest in spending time with him.
Mr P reported, to the court, that Y had indicated that he did not want to spend any time with Mr Keene whatsoever. Mr P reported that Y stated repeatedly and emphatically “I don’t want to see him … I don’t want him in our lives anymore, ever. I just want him to go away.”
These proceedings are not concerning with parenting issues related to either X or Y. X, now a young adult, exhibited a visceral hatred of Mr Keene in the witness box, which I did not think was feigned. Otherwise she presented as a well brought up and normally adjusted university student. From her perspective, she had never been part of a family unit involving Mr Keene. I did not disbelieve her evidence in this regard. Her evidence is congruent with the report of Mr P, which I acknowledge is untested and of so of limited value in these proceedings.
On 6 September 2011, following the release of Mr P's Advice to Court, produced by him following the conference of 30 August, Mr Keene withdrew his application in respect of spending time with the children.
However, earlier on, on 20 May 2011 to be precise, he had amended his application seeking orders in respect of the alteration of property interests, consequent to a de facto relationship existing between him and Ms Scofield.
Regrettably, these proceedings have been much delayed, since this amended application. The reasons for this delay have been explained in a number of earlier delivered reasons for judgement. They are in no way attributable to any omission or default on Mr Keene’s part.
The hearing of the preliminary issue, as to whether a de facto relationship existed between the parties, was originally listed for hearing on 1 and 2 March 2012. This hearing was postponed because, in early 2012, doubts arose relating to the validity of the applicable legislation, as a consequence of irregularities in its proclamation process.
Later, Ms Scofield fell ill and, in these circumstances, Mr Keene agreed to a further deferral of the case. Later again, he was charged with a number of serious criminal charges, to which reference has been made earlier in these reasons for judgement, relating to alleged sexual assaults on Ms Scofield, which were later discontinued by the police.
b) The circumstances around the parties meeting
There is no dispute that the parties met, through Mr Keene’s cousin, at a hotel in mid to late 2004. At the time, Mr Keene was living in a unit owned by him at Property A, which he continues to own. Ms Scofield was working as a (omitted), at the (omitted), and as a (omitted) at the (omitted).
In this early part of their relationship, I have no doubt that the parties “dated”. They went out to dinner and the movies. Ms Scofield invited Mr Keene to her house for meals. They went out together socially, including to events involving Ms Scofield’s family. I accept that she is part of a close knit family and her family were welcoming of Mr Keene.
It is also clear that, within a short period of time of having met one another, the parties commenced a sexual relationship. Ms Scofield stayed the night at Mr Keene’s unit in Property A, whilst he stayed overnight at Property C1, when X and Y were spending time with their father. The parties saw one another a few times each week.
However, it is Ms Scofield’s case that she had significant reservations, concerning her relationship with Mr Keene, almost from the start. She asserts that she attempted to break off the relationship in late 2004, but Mr Keene would not accept her decision. Essentially, it is her case that Mr Keene is a coercive and unstable person, who will use violence, including sexual violence, to get his own way.
Mr Keene cannot recall any conversation, in late 2004, with Ms Scofield, in which she expressed a desire to end the relationship between the two. It is his perspective that things were progressing favourably and he was pleased in this regard. I do not disregard this aspect of Ms Scofield’s evidence.
In my assessment, Mr Keene is not particularly adept at reading the emotional context of a situation. He is not an empathetic person. It seems likely to me that he was infatuated with Ms Scofield, whom he regarded as a very attractive and desirable person. In these circumstances, he is not likely to have paid much heed to any suggestion from Ms Scofield that they call a halt to their relationship.
Notwithstanding the ambivalence of this situation, from Ms Scofield’s perspective, the parties continued to see one another, in a social context. Essentially, they continued to date one another. In this context, I do not reject Ms Scofield’s evidence that she did not want to appear rude in respect of Mr Keene’s continued overtures towards her.
On 18 February 2005, they attended a social occasion at Ms Scofield’s work place, at the (omitted). Following this incident, Ms Scofield alleges that Mr Keene had non-consensual sexual intercourse with her on the banks of the (omitted), causing her significant pain and emotional trauma.
Mr Keene agrees that the two had sex in this locale. He also agrees that he had been drinking earlier at the social event concerned, having had “a couple of drinks”, which seems to me to be a euphemistic assessment of his degree of intoxication. It is his testimony that he wanted to have sex, in an unusual setting, associated with an element of risk. In his words, “things had to be done quickly”.
Mr Keene emphatically denies that he had sex with Ms Scofield against her will. He agrees with Ms Scofield that the circumstances of the intercourse caused a tampon to be firmly lodged within her vagina. He denies that he was indifferent to her embarrassment or discomfort caused by this situation.
The matter was not reported to police at the time, and Ms Scofield did not go to hospital. She says because she was fearful that she might know one of the nurses on duty. Ms Scofield asserts that she made a complaint of the rape to a friend, whom she has not called in these proceedings.
Accordingly, there is no corroboration available to me, in respect of this incident. I have only been provided with Ms Scofield’s statement to police about the incident but no other material, from the police, who investigated the matter, apparently to some significant degree, although many years after it happened, on Ms Scofield’s instigation.
At one level, the incident is irrelevant to whether a de facto relationship did or did not exist between the parties. After all, regrettably, non-consensual sexual intercourse occurs within both marriage and de facto relationships, between individuals who are committed to one another in myriad ways, including financial ones. The issue of the rape, if it occurred, does not negate the possibility that the parties either were in a de facto relationship, at the time, or commenced one later.
Given the gravity of the complaint and its irrelevance to the issue of the existence or otherwise of the central jurisdiction issue in the case, I am not in a position to make a concluded finding of fact as to whether the rape did or did not occur. Having said that, I did not find Ms Scofield’s evidence about the incident to be implausible. From her perspective, the incident was brutish and misconceived. From Mr Keene’s point of view, he did nothing wrong. However, something happened on the banks of the (omitted) that night and it is not beyond the bounds of possibility that both parties’ perception of it are now recounted honestly but diametrically differently.
However, the incident most certainly did not end the parties’ relationship with one another. Ms Scofield said she got Mr Keene to promise not to do anything like it again. In my assessment, the only relevance of this ambivalent and somewhat sordid matter, is that it may provide an explanation as to why Ms Scofield had a degree of reservation about committing herself fully to Mr Keene, which has pervaded her relationship with him ever since.
c) The circumstances surrounding Ms Scofield’s illness
It is Ms Scofield’s practice to holiday, each January, at (omitted), with her children. She rents and pays for a holiday house there. It is common ground that Mr Keene has attended the majority of these holidays, at least since January of 2006 onwards. This is a significant factor upon which he places great weight. I agree. It is not usual for casual acquaintances to be invited consistently on family holidays.
X, whom I do not regard as an entirely objective or impartial witness, remembers Mr Keene attending at least one holiday at (omitted), because she remembers Mr Keene taking her jet skiing. However, she did not report any generally pleasurable recollections of these holidays saying that she “can’t be sure about the whole (omitted) thing”.
In early 2006, whilst she was at (omitted), with her children and Mr Keene, Ms Scofield experienced dizziness and fainting. Initially an inner ear problem was diagnosed but her symptoms persisted. In (omitted) of 2006, a cardiologist diagnosed her as suffering an aortic aneurysm. This was obviously life threatening and required urgent surgical repair. Ms Scofield was told that there was a real risk that she would not survive the surgery required.
In the light of this life changing information, Ms Scofield made provision in the event she did not survive. She updated her will, power of attorney and made guardianship provisions. She left her estate to her children. She appointed her nephew the executor of her will and made her sister her guardian and power of attorney. Mr Keene did not reckon in any of these arrangements.
I accept that Mr Keene and Ms Scofield continued to see one another, in a romantic context, around this time. I also accept that, from Ms Scofield’s perspective, she was far from committed to Mr Keene. After her diagnosis, she told Mr Keene that it was inappropriate for the relationship to continue because of the uncertainty surrounding her life situation.
From Mr Keene’s perspective, he did not want the relationship to end. I accept that he was particularly concerned that those who knew of Ms Scofield’s condition might possibly think ill of him, if they considered him to have abandoned Ms Scofield, when she was extremely unwell and vulnerable.
This rings true to me. As does Ms Scofield’s account to police to which reference has already been made. Essentially that during her convalescence, Mr Keene was a frequent visitor to her home, where he was welcomed by those who were caring for her and she did not resist his attentions because of her state of physical weakness.
It is undoubtedly the case that Ms Scofield’s recovery from the surgery was long and arduous. It is her evidence that it was her family, particularly her mother and sister, who nursed her and provided care for X and Y, whilst she was recuperating not Mr Keene especially, although he played some role.
At the time of Ms Scofield’s operation, X was aged around thirteen years. It is not a period of time she is likely to have forgotten. She deposes as follows:
“In 2006 my mother became really sick. She eventually had an operation and it took her twelve months to recover. During this period, it was my aunty and my grandmother that looked after my brother and I. Mr Keene never helped out during that time. He never picked up my brother Y or myself from anywhere, it was always by mother, father, aunty, grandma or occasionally my friends’ parents.
I do not recall Mr Keene coming to our house after my mother’s surgery.
I do not recall Mr Keene ever staying the night in our house.
Mr Keene never brought a change of clothes, a toothbrush, or any of his personal belongings to the house.”[28]
[28] See X’s affidavit filed 24 January 2013 at paragraphs 6, 7 8 & 9
On the other hand, it is Mr Keene’s evidence that he was an essential part of the team, who rallied around to take care of Ms Scofield. He asserts that he stayed over at Property C1“… most nights on a pull out couch”. He does however concede that Ms Scofield’s sister, Ms N “did most things”. I think it likely that Mr Keene has overstated his degree of involvement at the time. I think it more likely than not that it was Ms Scofield’s close blood relatives who would have been the one involved in caring for her and the children, augmented by the children’s father.
Accordingly, I do not find that the relationship between the parties deepened, in any emotional sense, in the period after Ms Scofield’s operation. The two continued to see one another but I do not consider that it was as frequent as Mr Keene now states. Although X clearly has a very jaundiced attitude towards Mr Keene, I do not reject her evidence in this regard.
During this period of Ms Scofield’s life, her main focus was on her recuperation. I accept that her family were her main source of support, in this regard. Mr Keene had a role but I do not consider that it was likely to have been a significant one. Certainly, he did not assume any special role, so far as caring for X and Y were concerned. During Ms Scofield’s indisposition, her former husband and mother played the major role in this regard.
It took until Christmas of 2006 for Ms Scofield to recover. I accept that Mr Keene regularly visited her at Property C1. He did so as a suitor, in the strict sense of the word. I accept that he wished to woo Ms Scofield. She did not rebuff him, but I am satisfied that her main source of both emotional and physical support came from her immediate family, not Mr Keene. Certainly, he did not change his work practices because of Ms Scofield’s illness.
d) The circumstances surrounding the purchase of Property C2
Property C2 came onto the market in July of 2006. It had been rented for a number of years. It was occupied by an elderly lady, identified by Mr Keene, as (omitted). Mr Keene describes the property as being “derelict” by which he means that in his assessment, it was neither fit for renting nor for human occupation. In his words “no one other than (omitted) would have lived in the place”.
It is Mr Keene’s evidence that, prior to Property C2 coming onto the market, he and Ms Scofield had been looking for properties to purchase together. This seems to me to be inherently unlikely. At the time, Ms Scofield was still very weak and recuperating from her operation. As such, as she asserts in her affidavit, I accept her evidence that she “had other things to worry about”, when Property C2 came onto the market.[29] She had no desire to purchase it.
[29] See Ms Scofield’s affidavit at paragraph 76
It seems to me to be more likely than not that Mr Keene wished to purchase the property as a demonstration of the intensity of his devotion towards Ms Scofield. As I have indicated earlier, he has a propensity to make grand and unsolicited gestures.
The property went to auction in September of 2006. Mr Keene purchased it for the sum of around $455,000.00. He did not have the ability to raise this entire sum. As such, it is common ground that Ms Scofield advanced him the sum of $114,000.00.
Undoubtedly, from Ms Scofield’s perspective, the sum of money was a very significant one. It is her case that she initially refused Mr Keene’s request for the loan but he continued to hector her about it, until she finally capitulated to his demands, against her better judgement. It is her position that Mr Keene indicated to her that he would repay the sum as soon as he was able.
This is one of the more significant factual issues in the case. Mr Keene’s position is as follows:
“We had been looking at houses that were for sale when Property C2 came up. We talked about where we wanted to live, still close to Y and X’s school, Ms Scofield’s work and mine. Ms Scofield was not working at this point so we decided that she would put up the deposit and fees and I would pay the mortgage, and we would acquire an equal share in the property. The house was intended to be registered in joint names, but at Ms Scofield’s request it was registered in my name. It was a joint venture.” [30]
[30] See Mr Keene’s affidavit filed 3 February 2012 at paragraph 26
My assessment of Ms Scofield is that she is not a sophisticated business person or one who is knowledgeable about finance or property. I also accept her evidence that she was in an emotionally vulnerable position, because of her life threatening condition, throughout the second half of 2006. As such, it seems to me to be against the weight of the evidence that she would have wanted to purchase a property with Mr Keene.
It is Mr Keene’s case that Property C1 was comfortable but small. Property C2 was its mirror image but was uninhabitable. In those circumstances, he asserts that he and Ms Scofield had an agreement that both properties would be demolished and they would construct a large family home, on the cleared and combined land.
This seems to me to be improbable. If it was to be a joint enterprise, it seems extraordinary to me that Ms Scofield did not press to be included on the title or that Mr Keene would not press her to be so recognised. I reject as unlikely his assertion that Ms Scofield did not want to be a joint tenant with him on the relevant title.
Mr Keene has provided no explanation, as to why this would be so. If, as he asserts, the two were in the process of joining their financial resources together, why would Ms Scofield not want to have some form of legal recognition. To my mind, it beggars belief that the parties had an essentially informal agreement that Mr Keene would pay the recurrent mortgage payments on the property, as a quid pro quo for the moneys advanced by Ms Scofield.
In all these circumstances, it seems to me to be more probable than not, that Ms Scofield was financially naïve and pressured into lending the moneys concerned, after Mr Keene presented her with the fait accompli of his purchase of Property C2.
It may well have been Mr Keene’s ultimate aspiration to build a family home for himself and Ms Scofield and her children. In addition, it does not strike me as being implausible that he wanted to indicate his commitment to Ms Scofield by buying the property next door to her. However, in my assessment, he has not established, on the balance of probabilities, that the purchase in question was a joint enterprise. I am fortified, in this assessment, by what happened next.
e) The second mortgage on Property C2
At some time in 2003, Mr Keene entered into an agreement with a couple, Mr & Ms E and some others to purchase four units at Property A on the basis that Mr Keene would renovate the units concerned and they would be ultimately sold at a profit for the investors concerned.
This transaction occurred before the parties met. As has already been indicated, Mr Keene lived in one of the Property A units, when he and Ms Scofield began dating. The investors concerned put up $300,000.00 in total.
The units were not sold as expeditiously as had been initially planned. Relations between Mr Keene and Mr & Mrs E, in particular, soured. After legal correspondence, the various investors concerned commenced proceedings against Mr Keene, in the District Court of South Australia, in early 2008.
Mr Keene had not been able to realise the full purchase price, in respect of Property C2, from his own resources. Apart from the moneys advanced by Ms Scofield, he financed the remainder of the sum required to complete the purchase through a first mortgage advanced by the (omitted) Bank. This mortgage was registered. The Bank also seems to have held security over the Property A units.
Ms Scofield’s evidence is that she was reticent to confide in her family that she had advanced such a significant sum of money to Mr Keene. I can understand why she would feel this way. In my estimation, it was extremely foolish of Ms Scofield to have advanced the money in question, particularly without any form of security. I accept that she did so because of Mr Keene’s badgering of her, which she found difficult to resist.
In all these circumstances, it is to be expected that she would be somewhat anxious about the moneys outstanding. It is her evidence that she was advised by her accountant, in mid-2007, to obtain some form of security, such as a mortgage, caveat or deed of priority, to protect her loan. This seems both orthodox and sensible advice.
It is also Ms Scofield’s evidence that, whilst she was recuperating from her surgery, she continued to have reservations about Mr Keene’s character because of his violent behaviour towards her. She asserts that, at some time in the latter portion of 2006, she and Mr Keene had a violent altercation, which resulted in Mr Keene digging his fingernails into her arm to such a degree to cause bleeding.
Mr Keene agrees that the parties had a disagreement and argued but denies that he assaulted Ms Scofield in the manner described. Again, there is no evidence to corroborate Ms Scofield’s account of this incident. She did not consult a doctor. She does depose that she informed a friend of this assault, but this friend did not give evidence in the proceedings.
In all the circumstances prevailing, I am not surprised that Ms Scofield is not able to formally corroborate her allegations of violent behaviour against Mr Keene. The incident in question occurred essentially in private. Ms Scofield was both embarrassed and ashamed about it. I accept that, from her perspective, the relationship between the parties was dysfunctional and problematic.
For obvious reasons, Ms Scofield became worried when the proceedings against Mr Keene began in the local court. She was concerned that, if Mr & Mrs E and the other investors were successful, they would want to execute against Property C2 to realise any judgement in their favour.
Against this background, in March 2008, Ms Scofield sought legal advice and a mortgage in her favour was prepared to secure the sum of $114,892.71, which she had advanced to Mr Keene. The commencement date stipulated by the mortgage is 27 September 2006 and repayment is scheduled for 26 September 2011. The rate of interest specified is 8.5%.
Mr Keene has deposed that Ms Scofield was worried by the prospect of court proceedings against him, particularly that Property C2 might be sold and to use his words “the money she put in would be lost to creditors”. In this context, he asserts that he and Ms Scofield agreed that they “should get something drawn up for asset protection purposes.”[31]
[31] See Mr Keene’s affidavit at paragraph 27
I accept that Ms Scofield was gravely concerned about the situation. In these circumstances, it seems more likely than not that she was the proactive person in respect of the drawing up of the mortgage which, from her perspective, reflected the true situation. She wished to protect the moneys she had advanced to Mr Keene, against the perils of a business enterprise, which had nothing to do with her.
Ms Scofield’s evidence is that Mr Keene executed the mortgage in question, in the presence of a witness, in March of 2008. Interestingly, Mr Keene’s address is noted as being Property C1 in typescript on the document in question, however this has been corrected to Property C2 in ink. The document is clearly marked in bold capitals Memorandum of Mortgage.[32]
[32] See Annexure D to Ms Scofield’s affidavit
Mr Keene’s evidence is that he was not sure of the nature of the document, which he ultimately executed. I find this assertion highly improbable, given the obvious title of the document concerned and his own previous experience of obtaining finance pursuant to mortgages. He further deposes that he was reluctant to sign the document because it seemed to him to be unduly technical and to go beyond “asset protection purposes”.
I am not sure precisely what Mr Keene means by asset protection purposes other than I assume he means some mechanism to defeat his creditors. It is his case that he executed the mortgage because Ms Scofield became upset and agitated, at the prospect of him not signing it. The implication being that he signed the document under sufferance.
I reject this assertion. It seems to me to be more likely than not the document was precisely what it professed to be – a mortgage, intended to secure the moneys Ms Scofield had lent to Mr Keene, against her better judgement and as a result of the pressure applied to her by Mr Keene. I can well understand why Ms Scofield did become upset at what she perceived to be Mr Keene’s obfuscation.
It may be the case that Mr Keene was not aware that Ms Scofield arranged for the mortgage to be registered. However, given his background in business, I do not accept that he was unaware of the nature of the document in question. Even if he was mistaken, Ms Scofield had no such doubts. Her intent was to formalise the creditor/debtor relationship between her and Mr Keene, whom she did not altogether trust.
In these circumstances, I do not accept that Mr Keene has established, on the balance of probabilities, that the moneys advanced by Ms Scofield to him were anything other than a loan. Accordingly, I do not accept his evidence that the purchase of the property in question was ever intended, from Ms Scofield’s perspective, to be a long term joint enterprise.
At some time in 2009, Mr Keene compromised his action with Mr & Mrs E and the other investors. He was required to pay them the sum of $220,000.00 on 31 August 2009 and a further sum of $100,000.00, in monthly instalments, concluding on 30 June 2010. Mr Keene did not have ready access to this sum. As a consequence, he approached his financier, the (omitted) Bank, through a mortgage broker, Mr L. Mr L is a friend of Mr Keene, he lives in Sydney.
In his application for finance, to the (omitted) Bank, Mr Keene describes his marital status as single. He explains this on the basis that, as he was not formally married, it was appropriate for him to refer himself as single on the loan application document. He provided Property C2 as his current home address for the purpose of the loan.
Mr Keene asserts that he became aware of the registration of the second mortgage, in Ms Scofield’s favour, when he was engaged in the process of borrowing these further funds from (omitted) Bank. Ms Scofield asserts that, in this period, Mr Keene placed her under “enormous pressure” to discharge her mortgage, so that he could borrow more moneys against the security of Property C2.
She also asserts that Mr L engaged in similar harassment. In particular, Ms Scofield deposes that Mr Keene indicated to her that, if she did not discharge the mortgage, she would “ruin his business and he would go to gaol.”[33]
[33] See Ms Scofield’s affidavit at paragraph 138
I accept this evidence, which rings true to me. Ms Scofield is not a sophisticated person in business matters. As such, she is likely to have been concerned by these suggestions, for understandable reasons, although Mr Keene’s concerns are likely to be exaggerated. In my view, it is an example of her being subject to a significant degree of bullying from Mr Keene.
Mr Keene has not called evidence from Mr L about this chain of events. It seems to me to be axiomatic that Mr Keene was under a deal of financial stress at the time, particularly because of the existence of Ms Scofield’s second mortgage on the record, which is likely to have had implications as to how he could present his overall liquidity situation to his various creditors, particularly the Bank.
In these circumstances, it does not seem implausible to me that Mr Keene would exert considerable pressure on Ms Scofield to discharge the mortgage, under which she would buckle, as she had done before. In these circumstances, I reject Mr Keene’s assertion that Ms Scofield acted “properly” to discharge the mortgage. In my finding, she did so under sufferance and as a result of pressure exerted by him.
In addition, on the face of the documents provided by him, to his financier at the time, Mr Keene asserted that he was single and lived at Property C2. In addition, email records show that Mr L described Ms Scofield, in the context of the mortgage registered in her favour, as being the girlfriend of applicant, not de facto.[34]
[34] See annexure K to the affidavit of Ms Scofield
Accordingly, in a public sense, Mr Keene refuted any suggestion that there was a de facto relationship between the parties or that he actually lived with Ms Scofield. Mr L has not been called to explain the basis of his apparent state of belief regarding the nature of the relationship between Mr Keene and Ms Scofield and why it was significant in the overall context of his negotiations with the Bank.
To my mind, the incident smacks of financial expediency on Mr Keene’s part. He needed access to immediate funds to satisfy his obligations to Mr & Mrs E. In these circumstances, he was prepared to say and do whatever was required to achieve his ultimate objectives. His behaviour confirms my impression that he has a propensity to behave cavalierly in respect of financial matters.
f) The gift of the alleged engagement ring
In October 2007, the parties and X and Y went on holidays in (omitted) South Australia, with family friends, Mr & Ms T. It is Mr Keene’s evidence that he proposed marriage to Ms Scofield, on the front verandah of the (omitted) Hotel, in the presence of Mr & Ms T, their children as well as X and Y.
Mr Keene describes going down on one knee and Ms Scofield saying “yes”. The impression created being of an old fashioned proposal and acceptance. Concurrently with this incident, Mr Keene gave Ms Scofield a white gold ring, with a number of diamonds set into it. Mr Keene has provided a valuation, dated 5 October 2007, from a firm of jewellers, which indicates that the ring in question is worth $15,500.00.[35] The valuation was apparently obtained for insurance purposes.
[35] See annexure A to Mr Keene’s affidavit
Ms Scofield accepts that she was given the ring by Mr Keene. However, she refutes any suggestion that it was proffered in the context of the two becoming engaged to be married. She no longer has the ring, as she gave it to her mother to defray some of her legal expenses incurred in connection with these proceedings.
I accept that it is a significant thing for a man to give a woman a diamond ring. Ms Scofield accepts that she was excited by the gift and considered it to be, in her words “a very pretty ring”. She knew it was not costume jewellery and presumably had a significant value. However, she refutes the suggestion that it was an engagement ring and that she accepted, either explicitly or impliedly, any proposal of marriage originating from Mr Keene.
Apart from the parties themselves, the only witnesses who gave evidence about this aspect of the case are X and Ms R, the applicant’s mother. X deposes that she has no recollection of her mother and Mr Keene ever being engaged. She does not recall her mother showing her an engagement ring. Ms Scofield’s evidence is that she wore the ring on the finger on which it fitted best. The implication of her evidence being that this finger was not necessarily her engagement finger.
In her affidavit evidence, Ms R deposes that, in some time around October of 2007, the parties, X, Y and Mr & Ms T family arrived at her home in (omitted). She recalls Ms Scofield showing her a diamond ring on her left ring finger, whilst saying “look what your son has done”.
I accept that the ring was given. I also accept that, from the perspective of Mr Keene and his mother, it was a significant gesture indeed. However, in my view, the evidence does not establish, on the balance of probabilities, that Ms Scofield accepted a proposal of marriage.
At this juncture, Ms Scofield may be accused of being exploitative of Mr Keene or hypocritical for accepting the ring, when it seems more likely than not that she understood its significance from his perspective. However, her acceptance of the ring alone does not necessarily equate to an unequivocal acceptance of marriage.
In addition, Mr Keene has not called any other of the alleged adult witnesses to the incident in the form of either Mr or Ms T. More significantly, he has provided no collateral evidence to indicate that either he or Ms Scofield acted on the proposal. No public notices were posted. No engagement party was held. Most significantly of all, no steps were put in place for the parties to be formally married.
In my view, these are significant factors, which do not translate the gift of the ring into something more significant. The intent of an engagement is that it represents a precursor to something else – most usually a marriage. In this case, there is no evidence to indicate that the relationship between the parties, as it then was, changed in any significant way.
b) The nature and extent of common residence
For the reasons expressed previously in these reasons for judgement, it is my finding that the parties always kept distinct residences at Property C2 and Property C1 respectively, both before and after the incident of 1 June 2010.
Mr Keene kept his clothes at Property C2; utilised the property as his billing address for his credit card statements; and told his mortgagee it was his address. In the absence of any corroborative evidence whatsoever, I do not accept that Mr Keene could not sleep at Property C2 and therefore, by necessary implication, he must have lived at Property C1.
The fact remains that, apart from Mr Keene himself, there are no witnesses to support his account of being an habitual resident of Property C1. Both Ms Scofield and X refute this assertion and Mr Keene has called no one to support his version. In my view, this is a significant weakness in Mr Keene’s case.
Most significantly Mr Keene did not have a key to Ms Scofield’s home and she was an infrequent visitor to Property C2. As such I find that Mr Keene did not have unfettered access to Property C1, which is where he asserts the parties had a common household.
Although Mr Keene was a frequent visitor at Property C1, particularly whilst X and Y were visiting their father, I find that Mr Keene maintained his home at Property C2, whilst Ms Scofield maintained hers at Property C1. In this sense, the parties maintained distinct and autonomous households.
c) Sexual relations
The parties had a sexual relationship throughout the six years of their involvement with one another. I accept Ms Scofield’s evidence that this aspect of their relationship was at times problematic from her perspective. As such, it is the submission of Mr McGinn, counsel for Ms Scofield, that, although the parties were sexually active together, sex of itself, was not a form of cement or glue, which kept them together.
I do not accept that the manner in which Ms Scofield characterised her relationship, with Mr Keene, both to the police and to this court is a matter of recent invention on her part. I accept that, from her perspective, there was a power imbalance between her and Mr Keene. She did not regard the relationship as being a loving one. Rather it was one in which Mr Keene took advantage of her from time to time and from which she, as a result of a mixture of diffidence and embarrassment, was unable to extricate herself.
However, undoubtedly the parties were intimates in every sense of the word. They were not casual sexual partners or infrequent ones. It is not suggested that the parties were anything other than monogamous. The exclusive nature of their sexual relationship is a significant consideration.
d) The degree of financial dependence or independence, and any arrangements for financial support between the parties
Both parties were in paid employment during the course of their involvement with one another. No specific evidence has been provided as to their respective level of income during the period in question.
Ms Scofield was in part time employment. In addition, her former husband, Mr Scofield provided her with child support and paid some of the outgoings arising in respect of Property C1. Otherwise Ms Scofield paid for other expenses related to her occupation of the property, such as electricity and other utilities.
Similarly, apart from the initial outlay of monies required to purchase Property C2 in the first place, Mr Keene maintained financial responsibility for the property and kept its finances distinct from those of Ms Scofield and Property C2. The parties had no joint utility accounts in respect of either Property C1 or C2.
Ms Scofield played no part in Mr Keene’s affairs so far as the units at Property A were concerned. He was entirely responsible for all financial matters arising from the units and from the management of his business. He made representations, to this effect, to his financier, the (omitted) Bank.
Ms Scofield was not formally involved with the re-financing arrangements arising from the compromising of the litigation between Mr Keene and Mr & Mrs E. The parties were never involved in business together and Ms Scofield had nothing to do with Mr Keene’s company, (omitted) Pty Ltd, even on a peripheral basis.
The parties did not operate any joint bank accounts and kept their streams of income separate. Ms Scofield declined Mr Keene’s offer of a credit card. The parties did not hold any joint policies of insurance and did not name the other as the beneficiary of any life policy. They did not consult an accountant or financial planner jointly. In my view, the evidence indicates that, in a formal sense, the parties maintained independent financial affairs.
It is Mr Keene’s case that Ms Scofield was financial dependent upon him, too a significant degree, in an informal sense. He asserts this arose because he routinely purchased food and groceries for the household at Property C1, of which he was a part. In addition, it is his case that he financed many of the parties’ holidays together and other social activities.
In my view, the evidence surrounding Mr Keene’s alleged purchase of groceries for the household at Property C1 is murky. I accept that Ms Scofield had her own source of income and made her own purchases of household staples. Mr Keene is unable to establish that he provided a regular fixed sum, by way of housekeeping, to Ms Scofield. At best, his case is that he routinely bought the grocery shop for the household at Property C1. However, he has provided no collateral evidence to support this assertion.
I am not satisfied that Mr Keene has discharged the evidentiary onus upon him to establish that Ms Scofield was financially dependent upon him to any significant degree. To the contrary, the evidence indicates that Ms Scofield was able to support herself without the intervention of Mr Keene. I accept that she had her own sources of income through the period in which the parties were involved with one another.
I accept that, from time to time, Ms Scofield was the beneficiary of Mr Keene’s largesse. He wined and dined her. In addition, he financed a number of holidays which the parties took, with Y and X. However, Ms Scofield also financed holidays, which included Mr Keene. The evidence is clear that it was she who organised and paid for the annual holiday at (omitted). In addition, I do not dismiss Ms Scofield’s evidence that she and Mr Keene, on occasions, went “dutch” when they went out together.
Mr Keene also provided gifts for Ms Scofield and Y and X, the most notable of which was the ring, which Mr Keene characterises as an engagement ring. Ms Scofield took advantage of Mr Keene’s generosity. In my view, she did so in the context of Mr Keene being her admirer, suitor or indeed her lover. Ms Scofield was not financially dependent on these gifts or the holidays in question, although these things did benefit her and her family.
Mr Keene did provide a mobile phone account for Ms Scofield’s use. The provision of the phone provided some advantage for Mr Keene and his business. I do not reject Ms Scofield’s evidence that she routinely reimbursed Mr Keene for her use of the mobile. In this context, I do not think the issue of the mobile phone is significant.
The financial involvement, which the parties had with one another, is not, in my view, inconsistent with the boyfriend/girlfriend relationship asserted by Ms Scofield. In my view, the evidence does not indicate that the parties intermingled their funds or were significantly financially dependent upon one another.
e) The ownership, use and acquisition of their property
In a formal sense, the parties do not jointly own any items of property. Ms Scofield has owned Property C1 since 1992. Mr Keene was not involved with its acquisition in any way. I accept that Ms Scofield regards Property C1 as hers and her immediate family’s home. I accept her evidence that she arranges and pays for a lawn mower, gardener and window cleaner to keep the property neat and tidy and has not relied on Mr Keene in this regard.
Mr Keene is the sole proprietor of Property C2. It is his case that the property was purchased as a joint enterprise with Ms Scofield, a contention which she refutes. Ms Scofield was involved in the purchase because she provided the cash deposit required to secure the contract. However I accept that she did so after the event and as a result of the implorations of Mr Keene.
In the period prior to Mr Keene’s purchase of the property, Ms Scofield was recuperating from major surgery. Her financial future was uncertain. In these circumstances, I accept her evidence that the purchase of Property C2 was not a matter of pressing interest for her.
It seems more probable to me that Mr Keene’s desire to be more significantly involved with Ms Scofield was the inspiration behind the purchase. It was a grandiloquent gesture. If it had been a joint venture of the parties, it makes no sense that Ms Scofield would not have wanted to be recorded as a joint proprietor of the property.
Rather, in the circumstances of the parties’ relationship, which was hedged with ambivalence from Ms Scofield’s perspective, it makes much more sense that she would have wanted to protect the monies she had advanced to Mr Keene by taking a formal security on the property by way of a registered mortgage, as she did.
It seems to me to be inherently implausible that Mr Keene did not understand what he was executing, when he signed the mortgage in question. In contrast, it seems to me to be entirely probable that Mr Keene would have bullied and threatened Ms Scofield to withdraw the mortgage in question, when it caused him financial embarrassment in his obligation to payout Mr & Mrs E.
Whatever uncertainty surrounds Property C1, it is clear that Mr Keene treated Property C2 as his exclusive property. He operated his business from there. In particular, his book keeper worked there regularly. He also kept his clothes and possessions there.
The parties do not own any motor vehicles together, certainly not any vehicle which can be described as a family car. Significantly, there is no evidence to indicate that they purchased any household items together, such as a lounge suite or refrigerator. In my view, there are few, if any, indications that the parties had a sense of commonality in respect of any item of property, which they individually owned.
The exception concerns the removal of the fence between Property C1 and C2 and the architectural plans drawn up regarding the construction of one dwelling straddling the two properties. That the fence was removed is uncontroversial. However there is little evidence to illuminate the circumstances of its removal.
It was undoubtedly convenient, for Mr Keene, that the fence was removed. He began to use the back door of Property C1, when he came to visit Ms Scofield. But significantly, the removal of the fence did not result in him gaining unlimited access to the property. He never had a key to Property C1. In this regard, I accept X’s evidence that it was necessary for him to knock on the door to gain entry. In addition, there is no evidence to indicate that the parties amalgamated their gardens or yards for any common purpose.
It is also clear that plans were drawn up for the construction of a new dwelling on the two properties. I accept that this occurred on the instigation of Mr Keene, whose aspiration it was. However the plans were never advanced in any meaningful way. No builder was commissioned and no plans put in place to demolish either house. I accept Ms Scofield’s evidence that she provided half of the costs of the plans in question because Mr Keene pestered her to do so.
In my view, the reinstatement of the fence, after the incident of 1 June 2010, was a clear and unequivocal statement of intent, emanating from Ms Scofield, that she wished Mr Keene to desist from being involved in her life from that point onwards.
f) The degree of mutual commitment to a shared life
In my assessment, the parties had different aspirations and views about how their relationship would progress and develop over time. As his letter, written to Ms Scofield post the incident of 1 June, indicates, Mr Keene hoped to marry Ms Scofield and raise a family with her.
Neither such event occurred. This was because Ms Scofield did not share these aspirations. Although she undoubtedly had some degree of affection for him and it suited her to have him as a companion from time to time, Ms Scofield had deep seated reservations about Mr Keene’s personality and did not share his commitment to join her life with his.
In this context, the use of the word mutual, by the legislature, is significant. It connotes a common experience or action, shared or done in concert with another person. This consideration necessarily eschews any component of unilaterality.
I do not believe that the parties had any such mutual commitment to a shared life. In my view, the evidence indicates that Ms Scofield always held back from committing herself to Mr Keene, to the degree to which he wished. The parties’ relationship lacked this degree of mutuality in regards to their respective outlooks and aspirations for the future.
Mr Keene saw the parties’ relationship in one way; Ms Scofield in another. I accept that Mr Keene held a very serious affection for Ms Scofield, which caused him to court her and attempt to impress her with his ardour. On the other hand, Ms Scofield regarded Mr Keene as her boyfriend. In her eyes, given the parties’ circumstances, he fell short of a person, whom she could regard as her life-partner, either in the short or longer term.
The distinction is a fine one, as Ms Scofield herself acknowledged. From time to time, she did refer to Mr Keene as her partner, but she says only because to refer to him as her boyfriend was essentially undignified, given her age and her parental status. I do not dismiss this statement as some form of artful rationalisation on Ms Scofield’s part.
In my view, there is no obvious word to fit how Ms Scofield regarded Mr Keene. He was variously her lover; her friend; her neighbour; and her companion. In these capacities, it was convenient for the two to go on holiday together, go out to dinner and the movies and attend social functions together. In addition, Ms Scofield also felt some degree of emotional responsibility for Mr Keene from time to time, as her behaviour following his fall demonstrates.
Perhaps Ms Scofield is open to accusations of moral culpability for leading Mr Keene on, given his degree of infatuation for her, and letting him have hope, when there was no possibility of the relationship going further, from her perspective. In my view, these are valid criticisms of Ms Scofield.
However, in my view, the relationship between the parties was a complex one, not least because it was so distorted. Mr Keene was not without power in it, besotted though he was. As I have found, he was capable of bullying and intimidating Ms Scofield, when it suited him and of exploiting her in a financial sense.
In my view, because of the marked power imbalance between them, the parties’ relationship was always unsettled and provisional to a marked degree. It lacked a sense of mutual commitment. Mr Keene was always pushing for more; whilst Ms Scofield felt trapped and unable to leave because of a combination of embarrassment and some degree of coercion from Mr Keene, who was unlikely to accept her wish to be autonomous.
In this context, what happened around the time of the gift of the ring by Mr Keene to Ms Scofield is significant. The gift of the ring did not lead to the coalescence of the parties’ relationship into another form. They went on as before. No steps were taken by them to marry. There is no evidence of any formal announcement following the gift of the ring.
Certainly, on Ms Scofield’s part, the acceptance of the ring did not represent any additional form of commitment from her to Mr Keene. In my view, the respective views of the parties, concerning the gift of the ring, are lacking in mutuality and coherence. As is the case with much of their relationship, what transpired between them was muddy and unclear.
g) Registration under a prescribed law
The parties’ relationship has never been formally registered or ratified in any way.
h) The care and support of children
The relationship between the parties produced no children. At the time the parties met, Ms Scofield was a separated person with two children. She and her former husband retained responsibility for making significant decisions concerning X and Y, particularly in respect of educational matters.
I accept Ms Scofield’s evidence that, when she was gravely ill, responsibility for the children temporarily devolved unto other members of her family, particularly her sister and mother, as well as onto the children’s father.
The evidence also indicates that, upon her recovery, responsibility for the day to day care and support of X and Y returned primarily to Ms Scofield. Mr Scofield, the children’s father, paid the children’s school fees and provided other forms of financial support.
In addition, Mr Scofield interacted regularly with the children on weekends and during school holidays. His relationship with Ms Scofield seems to be a cordial one and he cannot be described as an absent or lax parent. X’s evidence is that Mr Scofield assisted her with many extramural activities.
Mr Keene did not have any direct responsibility for providing financial support for X and Y. This responsibility remained with Ms Scofield and Mr Scofield. In these circumstances, I do not think it is established that Mr Keene adopted the children or became a step parent to them, in either a de facto or legal sense.
At all relevant times, X and Y referred to Mr Keene as “Mr Keene”. X asserts that she never particularly cared for Mr Keene but “put up with him for my mum’s sake”.[50]I accept Ms Scofield’s submission that there was never any parental void, to be filled, so far as the parenting of either X or Y was concerned.
[50] See X’s affidavit filed 24 January 2013 at paragraph 14
At least to his bank, in April of 2009, Mr Keene described himself as being a person without dependents.[51] I accept this was a factually accurate description, at the time, certainly in a financial sense. In addition, I do not think it could be said that Mr Keene had any moral obligation to support either X or Y. There is no evidence to indicate that he has made provision for either child in any testamentary instrument.
[51] See Annexure F to Ms Scofield’s affidavit filed 24 January 2013
Mr Keene was interested in both X and Y. I accept that he provided transport and gifts for them regularly. In addition, he attended family events with them. He did so in his capacity as a friend of their mother. Currently both children have rejected his overtures of friendship.
X has deposed that Mr Keene never helped her with her homework. It is her position that she was rarely alone with him, as her mother was invariably present. She rejects Mr Keene’s assertions regarding his involvement in her extramural activities such as swimming; ballet; and her part time job at (omitted). It is her case that it was her father or her friends’ parents who transported her whenever necessary.
X has probably under estimated the degree to which she was involved with Mr Keene. I accept that he would have been delighted to chauffeur whenever possible because of his connection to X’s mother. However, there is clearly no affection between her and Mr Keene now.
i) The reputation and public aspects of the relationship
The parties frequently socialised together at many diverse events. These included parties and gatherings of mutual friends for all manner of celebrations. The parties also went on holidays with other groups of people. In addition, they attended family gatherings, which emanated from both Mr Keene and Ms Scofield’s family. Finally, the parties lived in the same suburb of Adelaide for a relevant period, which is approaching four years in duration.
What is striking, in this context, is the dearth of independent evidence regarding how the parties deported themselves in public and what was the general reputation held of them by both family and friends.
It is not suggested that the parties need to conduct a clandestine relationship for any reason. Neither was involved with any other person. As such, there was nothing necessarily secret about their involvement with one another.
Although Ms Scofield concedes that she did refer to Mr Keene as her partner from time to time, for want of a more dignified appellation, her principle position is that she introduced Mr Keene to her family and friends as her “boyfriend”. [52]
[52] See Ms Scofield’s affidavit filed 24 January 2013 at paragraph 181
Mr Keene has called no evidence to rebut this assertion. In addition he has called no evidence from any person with whom the parties came into contact, such as the adult members of the (omitted) and (omitted) families or his book keeper.
Ms Scofield’s evidence is that she and Mr Keene interacted infrequently with members of the Keene family, in contrast to her own family, which she describes as being close and frequently engaging its constituent members.
No one was called from Ms Scofield’s family apart from X and Mr A, both of whom categorically rejected any suggestion that Mr Keene was anything other than a friend of Ms Scofield’s.[53] I can understand why it might be difficult for Mr Keene to call any member of Ms Scofield’s family to be a witness in these proceedings. However, no formal explanation was provided in respect of this deficiency.
[53] See Mr A’s affidavit filed 24 January 2013 at paragraph 5
In addition, Mr Keene did not call any of the parties’ neighbours in (omitted) or anyone from Y’s football team or school. No friends were called to give evidence as to any examples of public affection between the parties or in regards to the exchange of any mutual endearments or acts of solicitude. As such there is no evidence regarding the public aspects of the parties’ relationship or of the state or otherwise of coupledom between them.
Ms R was a pleasant witness with a warm affection for her son. Her evidence centred on the issue of the ring passing between Mr Keene and Ms Scofield. She gave no evidence as to the status she accorded to the relationship between the parties. She deposed that she knew Ms Scofield, through her son, and visited the two, from time to time, at Property C1. She did not indicate whether she considered the parties to be in a de facto relationship or the basis of any such belief in this regard.
Mr Keene bears the onus to establish the necessary factual basis on which to support a finding that a de facto relationship existed between the parties. It is not Ms Scofield’s responsibility to call evidence to negate the existence of such a relationship. In this regard, it is significant that Mr Keene is not able to muster any significant and independent evidence regarding the status of the relationship between the parties.
To the contrary, some of the public documents available to me, which emanate from Mr Keene, denote his status as being a single person with no dependents. The exception is the hospital admission record of August 2010, to which I do not accord a great deal of weight.
Conclusions
The onus is one Mr Keene to prove the existence of the de facto relationship in question. On his evidence, I do not believe that he has done so or satisfied the burden of proof upon him. This was not a secretive or private relationship. Yet Mr Keene has not called any independent evidence to support his assertions regarding the nature of the relationship between him and Ms Scofield.
The obvious sources of this evidence are mutual friends, acquaintances and neighbours of the parties, who interacted regularly with them over the six years of their involvement together. In addition, Mr Keene’s bookkeeper, who worked on a daily basis at Property C2, was not called to depose as to her knowledge of where, in a physical sense, Mr Keene was living at relevant times. No explanation was given regarding this omission.
It is not unreasonable for the court to have an expectation that such evidence would have been called in the adjudication of the central jurisdictional issue arising between the parties. In its absence, in my view, the court is entitled to conclude that such evidence would not have been helpful to Mr Keene’s case.
The central tenet of Mr Keene’s case is that he and Ms Scofield purchased Property C2 together, although she was never registered as a proprietor of the property in question. Following this purchase, the parties had an implicit agreement that Mr Keene would service the day to day needs of Ms Scofield and her children, in exchange for the monies she had advanced to him to purchase the property and in recompense for the regular mortgage payments which he made.
Mr Keene asserted that he would be able to establish a significant degree of financial interdependence between him and Ms Scofield. In my finding, he has not provided the necessary evidence in this regard. He has not established what his level of income was at relevant times or how it was disbursed. Certainly not that is was disbursed significantly or regularly in Ms Scofield’s favour.
That there was a relationship between the parties cannot be doubted. They obviously know each other very well and have done so for around six years. In my finding, theirs was neither a settled nor well defined relationship. It lacked mutuality and a shared commitment. It did not progress in the manner to which Mr Keene aspired. The parties were not moving towards the same goal.
In this regard, I bear in mind the strictures laid down by Mushin J in Moby & Schulter and remember that the circumstances of modern life have an infinite capacity to throw up diverse relationships, outside the norms and mores of the social mainstream, which are nonetheless to be accounted de facto relationships, given the definition contained in section 4AA(1).
The matters contained in section 4AA(2) are indicators only. They are not to be weighed against each other and given individual weightings of importance. It is the composite picture which is central. In this regard, it is the essential task of the court to consider all the circumstances of the case before it and determine whether the two individuals concerned had a relationship as a couple living together on a genuine domestic basis.
It is necessary for Mr Keene to establish that he and Ms Scofield were a couple at prerequisite times. This state involves a merger of their respective lives into some degree of shared domesticity. It necessitates the court examining the degree of union between him and Ms Scofield.
In my view, on the evidence available to me, the parties led distinct and autonomous lives in many respects. I do not accept that their households, at Property C2 and C1 respectively, merged into one. I find that they remained separate from one another, in both a financial and emotional sense.
It is clear that Mr Keene fervently hoped Ms Scofield would, in time, reciprocate his ardour for her. She never did. Rather she was at pains to place impediments, some of them imprecise and unarticulated, in the way of the parties being regarded, both at large and in their personal interactions with one another, as a couple. She did not regard herself as being, at any time, a complementary portion of such a coupling.
At all relevant times, I find that Mr Keene was a guest or suitor in her home rather than her partner. I accept that Ms Scofield’s designation of Mr Keene as a boyfriend is the most apposite descriptor of his status in her life.
Given this finding, it is not necessary for me to make specific findings as to whether the relationship between the parties materially changed after 1 June 2010 other than to indicate that the incident at the gate of Property C2 resulted in significant freezing of relations between them, although the two did remain emotionally entwined to a significant degree.
The fact is that throughout their involvement with one another the parties were emotionally embroiled with one another. They were lovers and had disagreements with one another. Their involvement with one another was, at times, emotionally unhealthy and destructive. This degree of emotional entanglement is not sufficient, in my view, to transmogrify their relationship into a state of domestic coupledom.
As such, although the parties mutually exploited one another, from time to time, including in a sexual manner, they were never a couple living together on a genuine domestic basis. There was always some degree of distinctness between them. As such, I do not accept that Mr Keene has established that he and Ms Scofield were ever a couple, in the sense envisaged by section 4AA(1).
It must follow therefore that the relevant application and response filed herein should be dismissed save for any application arising for costs.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding four hundred and thirty-five (435) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 2 September 2013
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