Kellner and Kellner and Anor

[2013] FCCA 2184

FEDERAL CIRCUIT COURT OF AUSTRALIA

KELLNER & KELLNER & ANOR [2013] FCCA 2184

Catchwords:
FAMILY LAW – Whether or not de facto relationship exists determined as a threshold issue – credit of respondent poor – declaration that de facto relationship existed.

Legislation:  
Family Law Act 1975 (Cth), ss.4AA, 44(3), 90RD, 90SK

Family Law Amendment (De Facto Financial Matters and Other Measures) Act2008 (Cth)

Moby & Schulter (2010) FLC 93-447
Jonah & White [2012] FamCAFC 200

Applicant: MS KELLNER

First Respondent: MR G KELLNER

Second Respondent: MR A KELLNER

File Number: DNC 439 of 2012

Judgment of: Judge Harland

Hearing dates: 19, 20, 21 June 2013 and 16 July 2013

Date of Last Submission: 5 September 2013

Delivered at: Darwin

Delivered on: 17 December 2013

REPRESENTATION

Counsel for the Applicant: Ms Farmer

Solicitors for the Applicant: Withnalls Lawyers

Counsel for the First Respondent: Mr Rowbottam

Solicitors for the First Respondent: Cecil Black Family Lawyers

The Second Respondent: No appearance

ORDERS

1. The Court declares that pursuant to section 90RD of the Family Law Act 1975 (“Cth”) from 8 July 1990 the parties were in a de facto relationship until 12 July 2012.

2. The Court declares that pursuant to section 90SK of the Family Law Act 1975 (“Cth”) both parties were ordinarily resident in the Northern Territory of Australia for more than one third of the de facto relationship.

3. That the parties may relist the matter upon giving the other party seven (7) days written notice of their intention to do so.

IT IS NOTED that publication of this judgment under the pseudonym Kellner & Kellner & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT DARWIN

DNC 439 of 2012

MS KELLNER

Applicant

And

MR G KELLNER

First Respondent

MR A KELLNER

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, Ms Kellner, (“the applicant”) commenced proceedings seeking a property adjustment. In his response Mr G Kellner (“the respondent”) sought orders with respect to the parties’ business partnership. He did not specifically raise the issue of jurisdiction. However it was clear from his affidavit evidence that the parties divorced in 1990. His primary position was that they were only business partners and never lived in a de facto relationship. At the hearing he proffered alternatives, that if they were in a de facto relationship, it either ended in 2000 or 2004 and therefore the application was out of time.

2. The respondent sought that a declaration not be made. The hearing took place over three and a half days. The parties filed written submissions.

Background

1. The applicant was born on (omitted) 1954. She is aged 59.

2. The respondent was born on (omitted) 1945. He is aged 68.

3. The applicant says she met the respondent on (omitted) 1986 in Australia. She says they started living together on (omitted) August 1986 and were married on (omitted) September 1986. The applicant says they separated on 12 July 2012 when she moved out of the home.

4. The applicant’s first affidavit, sworn on 17 October 2012, makes no mention of the parties’ divorce. The affidavit refers to the applicant’s contributions, needs and legal fees. Her application seeks final orders for property adjustment orders.

5. The respondent filed an affidavit and response on 25 October 2012. The orders sought in his response are somewhat unusual. He seeks final orders dissolving the partnership and after an accounting process is undertaken that the partnership property be divided in accordance with ‘the respective interests of the parties’. On an interim basis he sought the matter be transferred to the Family Court. He does not seek a declaration that the parties were not in a de facto relationship. One queries upon what basis the Family Court would have jurisdiction to determine the partnership issues in the absence of a de facto cause.

6. The applicant filed a reply seeking a declaration that the parties were in a de facto relationship from the date of their divorce on 7 June 1990 until 12 July 2012.

7. The respondent says they met in 1986. He does not dispute that they lived in the same house from 1986 until July 2012.

8. The respondent was previously married and has three children from that relationship. The children spent some time living in the parties’ household whilst they were still at school.

9. When the parties moved in together the respondent had been in the (occupation omitted) industry for some years.

10. At the hearing the respondent ran alternative arguments. He first argued that there was never a de facto relationship. In the alternative he argued that if there was a de facto relationship, it ended well before 1 March 2009 which would mean this Court would not have jurisdiction to determine property issues between the parties.

Written Evidence

1. The applicant relied on the following:

   a)Initiating application filed on 17 October 2012;

   b)Reply filed on 7 November 2012;

   c)Affidavit of Ms D filed on 23 November 2013;

   d)Affidavit of Mr R filed on 23 November 2012;

   e)Affidavit of Ms C on 23 November 2012;

   f)Affidavit of Mr F filed on 23 November 2012;

   g)Written submissions filed 5 September 2013.

2. The respondent relied on the following:

   a)Response filed 25 October 2012;

   b)Affidavit of Mr G Kellner filed on 13 June 2013;

   c)Affidavit of Mr G Kellner filed on 14 June 2013;

   d)Affidavit of Ms F filed on 23 October 2012;

   e)Affidavit of Mr A Kellner (aka Mr A Kellner) filed on 23 October 2012;

   f)Affidavit of Ms K filed on 23 October 2012;

   g)Written submissions filed on 16 August 2012.

3. I have considered all of the written and oral evidence.

Evidence of the respondent

1. The respondent says they separated on 15 November 1988 and were divorced on 7 June 1990. He says that it was a marriage of convenience.  The respondent says that he financially supported her, they had sexual relations and she looked after the house. The respondent says he continued to have relationships with other women which the applicant knew about. The respondent says at paragraph [15] that although he still wanted to meet and marry someone else, he did not actively pursue another relationship as work was busy and he was continuing to have a sexual relationship with the applicant.

2. The respondent first instructed Cecil Black Family Lawyers in August 2012. The respondent also agreed that he reads the letters his lawyer drafts before the final version is sent and reads the letters from the applicant’s lawyers and gives instructions about them.

3. The respondent was cross-examined about the instructions he gave to his lawyers with respect to correspondence between lawyers.  Exhibit A5 is a letter from Withnalls Lawyers dated 4 September 2012. In that letter there are repeated references to the husband and wife and a request for spousal maintenance. The letter from Cecil Black Family Lawyers dated 14 September 2012 responding to that letter which is annexed to the affidavit of the respondent filed 2 November 2012 was tendered as exhibit A6. That letter includes a request to further particulars as to how the applicant had in her claim for spousal maintenance and does not raise any jurisdictional issue. It is clear from reading exhibit A5 that the applicant and her lawyer were treating the matter as a matrimonial one. Cecil Black Family Lawyers sent further letters dated 19 September 2012 and 3 October 2012. None of those letters raised a jurisdictional issue. The applicant filed her application on 17 October 2012. It is only after she filed the application that he raises the issue of jurisdiction.

4. Exhibit A5 is correspondence between solicitors with respect to particulars. The letter from the respondent’s lawyers dated 5 November 2012 poses three alternative arguments. The first is that there was never a de facto relationship. The second is that the de facto relationship broke down in January 2004 when the applicant was hospitalised in (omitted). The third is that the de facto relationship broke down just before the respondent’s birthday on (omitted) 2008 when Ms B came to Darwin.

5. The respondent was unable to provide an explanation as to why he engaged a family lawyer rather than a commercial lawyer to address the partnership issues. He would have had contact with business and commercial lawyers through his many years in business.

6. The respondent claims that the applicant prepared the divorce papers and that the lawyer at Cridlands Lawyers acted for both of them. The divorce file was tendered as Exhibit A3. The application for divorce is not accurate as it refers to the husband moving out of the home when that clearly did not happen.

7. If the respondent’s version of events was correct, it seems strange that the parties did not file a joint application which was possible by filing a Form 5 at the time.[1] It makes no sense for the applicant to have seen the lawyer at Cridlands who was instructed to act for the respondent on the divorce.

   [1] See Family Law Act 1975 with Regs/Rules 11^th edition, consolidated to 26 February 1990.

8. The respondent says he agreed to marry her so she could stay in the country. He said he needed someone at home with him at the time. At first he insisted that he did not sign the application in front of Mr Roussos, lawyer, at his office. He then changed his evidence to say it was possible but he could not remember. The respondent said that they did not live apart “for a single day.”

9. He says that the applicant provided all the instructions and that she brought the documents home for him to sign and she brought them back to his lawyer. It is entirely inconsistent with the affidavit he swore. He swore that document in front of his lawyer Mr Roussos. The respondent gave a false address of (omitted) as his home address in his affidavit. It is apparent from the bench sheets on the court file that the divorce did not go through on 25 January 1990 and 19 April 1990 because service had not been affected. On 7 June 1990 the court required clarification of service and proof of signature. The divorce went through on the fourth occasion it was before the court.

10. I am not satisfied that the nature of the documents and their importance were emphasised to the applicant at the time. There is no evidence that anything changed in their living arrangements. In the circumstances I find it plausible that the applicant did not remember the divorce. This is consistent with her initiating application and affidavit.

11. The respondent was cross-examined at some length about his affidavit filed on 2 November 2012. In that affidavit he deposes at paragraph 4(b) that the parties were separated on 15 November 1988. This is inconsistent with his oral evidence. Much of this affidavit is inadmissible particularly where he purports to know what was in the applicant’s mind at various points. I place no weight on those assertions.

12. At paragraph [26] of that affidavit he says he “financially supported Ms D and myself. What Ms D did with her income was her own decision. I did not expect her to make any financial contribution to our household although she did from time to time.” This is evidence by the respondent himself as to financial interdependence. He does not provide any evidence that this changed at any of the various points he asserts any de facto relationship ended.

13. At paragraph [34] of the respondent’s affidavit sworn on 13 June 2013, the respondent again said that he financially supported the applicant and himself. In the witness box he denied this saying that the applicant was working. When this inconsistency was put to him he then said that he did not know what he means by supporting financially. I find that the respondent provided the applicant with financial support.

14. If the respondent’s evidence about the nature of their relationship is correct, then one would have expected the applicant to move out of the home when Ms B came to stay. The respondent does not provide any collaborating evidence that he introduced Ms B as his girlfriend and then his fiancé. It is significant to note that the applicant moved out three days after Ms I moved in. This is again consistent with the applicant’s case, not the respondent’s.

15. Whilst in the witness box the respondent said they were a couple from the time of their divorce up until the year 2000. This is contrary to his written evidence.

16. The respondent also says that he has been in business 40 years. One wonders then why he would essentially hand over control of his business to the applicant who he says was merely a business partner and not someone he ever loved. Much of his evidence simply does not ring true.

17. Exhibit A10 is a handwritten letter from the respondent dated 11 February 2010 referring to the applicant as his wife. Exhibit A11 is an undated handwritten letter from the respondent referring to the applicant as his wife.  The respondent said that the handwriting was not his. He acknowledged it was his signature. He said he could have been given a blank letterhead to sign. I do not accept that he would sign a blank letterhead.

18. The respondent’s sister Ms F, nicknamed (omitted), came to stay in 1994 and stayed for some seven years. It was put to the respondent that his sister and the applicant did not get on. The respondent replied “yes, of course. No one go well [sic] with Ms D in the house, even my children.”  He then back tracked and said he did not see them argue. They could not communicate well because his sister did not speak English and the applicant did not speak (language omitted). The respondent would have the Court accept that he remained living in the house with the applicant in preference to his family members even though in his case they were only business partners and friends. It certainly was not necessary for them to live together to be business partners.

Ms F

1. The respondent’s sister Ms F swore an affidavit on 23 November 2012. She acknowledges in the affidavit that the parties shared a bedroom during the five years she lived with them from 1994 until 1999. She claims that the parties were not affectionate with each other. She was cross-examined. She conceded during her cross-examination that the applicant attended the special family events as husband and wife. She said “Yes. Because nobody knew anything. It was just them [sic] too knowing what was going on….. As in nobody knew what was going on between these two people as partners, if they were together as normal partners, as a couple, if they were together or what.”  She said that the respondent told her five or six years ago that they were not together as husband and wife.

2. She also said that the applicant forced the respondent to kick her out of the house in 1999. She said that the applicant had told the respondent that she would move out and he would have to pay for a flat. The respondent did not want the applicant out of the house. This is consistent with the parties being in a de facto relationship as why he would prioritise a business relationship over the family.

3. Her hatred of the applicant was palpable even though she gave her evidence through an interpreter. Due to this I treat her evidence with some caution.

Mr A Kellner (Mr A Kellner)

1. Mr A Kellner was one of the people the respondent spoke to outside the court in direct breach of my explicit direction not to discuss his evidence with anyone, as he was still under cross-examination. It was not the first time I had given the respondent this warning.

2. He gave evidence that once he was an adult he did not participate in family events, being the regular Sunday dinners or bigger events such as name days, christenings and weddings.

3. During his cross-examination Mr A Kellner said he lived at his father’s house on and off during the early part of their relationship. He says he mainly stayed in his room and did not know what was happening amongst the other members of the household.

4. He says he was very negative about the applicant and mirrored many of the negative things the respondent said about the applicant. His evidence does not assist me determine the issue before me.

Ms K

1. Ms K is the respondent’s daughter. She said the applicant did not normally join them for Sunday dinners but would come and have her dinner towards the end.

2. She agreed that the applicant participated with her father in many family events. She agreed that the applicant attended family functions and that the applicant wrote out Christmas cards to her children with $100 notes in it. Mr A Kellner had denied this when he gave evidence. The cards were signed with the (country omitted) words for grandfather and grandmother.  She received the cards up until the applicant moved out. This is supportive of the applicant’s case.

Ms I

1. Ms I is the respondent’s fiancé. She swore an affidavit and was cross-examined. Ms I’s evidence does not assist me determine the issue of whether or not a de facto relationship existed.

The applicant’s evidence

1. Exhibit R8 is a bundle of invoices from (omitted), the partnership’s accountants. It is clear from their description of professional services rendered that the applicant attended meetings with the accountants. The respondent did not do so until after the parties separated.  This is consistent with the applicant’s evidence. I accept that the applicant went at the respondent’s instruction.

2. Exhibit R7 a bundle of handwritten letters between Mr E and the applicant. She refers to the respondent and herself as having a healthy appetite for each other sexually but she is also clearly pursuing Mr E in this letter dated 6 March 1996. In the letter dated 12 November 1994 from the applicant to Mr E, she refers to Mr E possibly becoming “born-again”.  She notes that she heard that those who are born-again do not play around. It is clear that she is referring to having sexual relations. She says the respondent made her write to him as he found it titillating.

3. Exhibit R3 is a handwritten letter from the applicant to a person named Ms A dated 8 August 1997. Significantly in that letter she says “I am divorced with three children…”  This is consistent with the applicant’s evidence that the respondent dictated the letter as it is the respondent who was divorced with three children.

4. The applicant says that the parties went to the (country omitted) in 1988/89 so that she could introduce her husband to her family. The respondent says he went there to commence a sexual relationship with Ms J also known as Ms J. The applicant denies that the respondent moved out of her family home there and stayed in a hotel. I prefer the applicant’s evidence to the respondent’s.

5. The applicant agreed that there were several occasions where she assisted the respondent by writing letters for him to some of the women he was corresponding with in the (country omitted). She agreed that he would travel to the (country omitted) to meet these women and then start corresponding with them. She agreed that in some of those letters he would tell them he loved them and wanted to marry them. She said that he told her what to write.

6. The applicant agreed that most often she prepared correspondence and he signed them. She says she did the paperwork and administrative tasks for the business. She says that she would attend the accountant but on his instructions. She says that although she cannot remember exactly when it was the accountant rang her and asked her to pick up bags or boxes because they had run out of storage. She says she put them in the laundry at home.

7. The applicant gave evidence that the respondent made her write letters that she wrote to Mr E, who was her former boyfriend. It was suggested to her that she was doing the same thing with Mr E that Mr G Kellner was doing with other women. The applicant denied this.

8. The applicant gave her evidence in a straightforward manner. The applicant was cross-examined about her (religion omitted) which she referred to at paragraphs [13] to [15] of her affidavit sworn on 23 November 2012. She talks about family’s strong (religion omitted) faith and the fact that there is no divorce allowed in her home country of the (country omitted). She said she did not realise that he was divorced and that she tolerated the respondent’s infidelities because of her belief in the sanctity of marriage.

1. Counsel suggested to the applicant that what she was saying couldn’t be true given that she was a devout (religion omitted). I raised at the time this doesn’t follow as there are many people who consider themselves devout (religion omitted) who have affairs. The applicant said she was instructed not to touch the respondent’s things and she respected his instructions and did not look at his letters.  I accept her evidence.

2. What the applicant says about Ms I paragraphs [86]-[88] of her 23 November 2012 affidavit makes sense. She was not challenged on this.

3. The applicant was cross examined about a 31 page letter she wrote to her sister which was tendered as Exhibit R6. The contents of that letter including passages speculating about the status of her relationship with the respondent. She expressed worry about him leaving her for another woman.  She was vigorously cross-examined about this. She insisted that the respondent told her what to write in this letter as well. She refers to the assistance he gave her parents and her sister and says “so now are you convinced that one way or the other way he will not stop to have a girlfriend, or I will be relegated to become a girlfriend and he’d taken another woman for a wife.”

4. The applicant goes on to say in that letter to her sister “I am asking you to help my status to be his permanent partner.  In him he we will both be well cared for.”

5. The letter goes on to say “He is asking us both to help him settle well into a life you want us both to have. You will be factor [sic] to anchor my being Ms G Kellner.”

6. The applicant’s case is that the respondent became aroused by her talking about doing things with other men. It was also her case that he would tell her that he was going to replace her. There is a consistency to her case which is absent in the respondent’s case. The one area where I have doubts about the applicant’s credit as is seems unlikely that the respondent would have made her write such a lengthy letter to her sister.

7. Exhibit R6 is a lengthy handwritten letter from the applicant to her sister dated Easter Sunday 1996 in that letter she refers to the support she has received from the respondent for her parents and family. At page 10 she refers to being concerned about being a liability to the respondent because of the sister’s family needs. She refers to being concerned that she won’t have future with him. This reads as the thoughts of someone in a relationship who is concerned about whether or not the relationship will last and whether or not the respondent will take another wife.  It does not read as though that person is only in a marriage of convenience or a business partnership. I find she would have had those concerns. The respondent encouraged her to have them. The respondent admits that he did “in the early part of the relationship” at paragraph [25] of his affidavit sworn on 13 June 2013. The applicant said when cross-examined that the respondent made her write this letter too. This is hard to accept given it is a much longer letter and is addressed to her sister.

8. I do not accept the respondent’s argument that these letters show the respondent’s intention to never stay in the relationship. I think there is an element of cruelty in the way the respondent treated the applicant over the years. I think she was insecure and he toyed with that. There is no requirement in the legislation that the relationship be a happy or a healthy one. There is not a single factor that is required to be present under section 4AA.

Ms C

1. Ms C is a (omitted) employee working for the (employer omitted). She is not related to the parties. She first came across the parties in 2006 in the course of her work. In her affidavit she says she understood that they were married and that she was dealing with the applicant as the respondent’s English was not good and he was not good with paperwork.  Ms C dealt with the applicant on many occasions from 2006 until 2011. She conducted a home audit at their home in January 2011 for three hours. She says that is when she remembers first meeting the respondent. Ms C said as a result of this audit they were placed on a remedial program and a re-audit was to be done in a year’s time.  She says when she contacted the respondent in August 2012 he told her they had separated.

2. Ms C describes an incident in August 2012 when he attended her office and became irate as he wanted two building transfers put in his name instead of the applicant’s name. She deposes that he said “she’s my wife” and that she responded “she’s also your business partner.”

3. Ms C was an impressive witness. She gave her evidence in a straightforward manner. She is a disinterested person in these proceedings. She did not come to court with an agenda. I accept her evidence. Her evidence supports the applicant’s case. It is relevant to the public aspects of the relationship although it is limited to one incident.

Mr F

1. Mr F is a (omitted). He says he worked for the Kellners on various jobs over the past four or five years. He had a disagreement with the respondent about money. Mr F admitted he was angry with him about that.  He said many (country omitted) people knew the applicant and respondent were partners.

2. When he was cross-examined it was clear that he had trouble understanding some of the questions as his English was not good. He also had a heavy accent which was hard to follow at times. I do not place any weight on his evidence.

Mr R

1. Mr R works in the (omitted) industry. He first met the respondent in 2000 or 2001 at a (omitted) site.  Mr R said that during his dealings with the Kellners in the early 2000’s he understood they were married. He said he saw affection between them. The applicant was the primary contact though during phone calls he said he could often hear the respondent giving instructions in the background. Mr R attended the respondent’s birthday in 2009. He said the applicant was the hostess. They both attended his son’s christening on 1 May 2010. Mr R says they attended as a couple and he understood they were married. Mr R says that the respondent is a difficult person and wants things his own way. He was very directive with the applicant.

2. Mr R’s oral evidence was consistent with his affidavit. His evidence supports the applicant’s case.

Ms L

1. Ms L is the applicant’s niece. She lived with the parties from January 2005 until November 2006. They sponsored her to come to Australia as a student. Ms L says the respondent treated the applicant like a domestic servant. She says she did not know they were divorced until these court proceedings. Ms L says the respondent is demanding. She wanted the applicant to leave him because of the way he treated her. Ms L became upset when giving her oral evidence.

2. At paragraph [32] of his written submission the respondent stated the applicant blackmailed Ms B. This is a misreading of the transcript.[2]

   [2] Transcript dated 16 July 2013, page 5

3. Although Ms L says ‘we’ and not ‘I’, English is not her first language. It was not put to her that the applicant was part of the blackmail that Ms L refers to. There is nothing in what she said to indicate that the applicant was part of that scheme.

Credibility of Witnesses

1. The parties disagreed about most of the important facts. Consequently credibility findings are important. Both parties called witnesses to corroborate their version of events.

2. The respondent was not a credible witness. It was necessary for me to warn the respondent during his cross-examination that he needed to let the cross-examiner ask the whole question and answer the question he was asked. He was unresponsive to many of the questions he was asked. I warned him several times. I had to explain to him in more detail[3]. I find that the respondent was more concerned about stating his case than telling the truth.

   [3] Transcript dated 19 June 2013, page 89

3. The respondent was an unreliable witness. He was more concerned with making some generalised denial than to seriously attempt to answer specific questions put to him. The respondent was warned several times about the importance of focusing on the question being asked and answering that question rather than making general statements. He failed to follow those directions. He also disobeyed my instruction not to discuss his evidence outside the courtroom. The respondent was caught by the applicant’s lawyers discussing his evidence whilst he was still in the middle of cross-examination with two witnesses yet to give evidence. Fortunately it appears that he did not have much opportunity to discuss it and apparently after making a couple of comments then said: “but I am not allowed to talk about it.”

4. The applicant was generally a credible witness.

5. My impression was that the respondent was making things up as he went along when giving evidence in the witness box. He appeared to be preoccupied with trying to give answers that he thought would help his case rather than answering questions truthfully.

The legislation and case law

1. Section 90RD of the Family Law Act1975 (Cth) enables the Court to declare that a de facto relationship existed or never existed. It also enables the court to determine the periods of the relationship and when the relationship ended as well as where each of the parties were ordinarily resident during the de facto relationship. The applicant has the burden to proof on a civil standard that they were in a de facto relationship.

2. The de facto relationship must have existed for at least two years before the court may make financial orders and must have existed until at least 1 March 2009 when the Family Law Amendment (De Facto Financial Matters and Other Measures) Act2008 (Cth) commenced.

3. As Mushin J pointed out in Moby & Schulter (2010) FLC 93-447, the definition of de facto relationship in section 4AA of the Family Law Act 1975 (Cth) is a very broad one.

4. Section 4AA of the Family Law Act 1975 (Cth) defines a de facto relationship and includes a number of criteria which may be relevant to the court to consider in determining whether or not a de facto relationship exists between the parties. There are two preliminary matters and that is that the parties must not be legally married to each other and must not be related by family. Neither of those apply here.

5. Two people are defined to be in a de facto relationship “having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.”

6. Section 4AA(2) includes a number of criteria which the court may consider in determining whether or not a de facto relationship exists. It is not necessary to make a particular finding about all or any of the matters listed. The court is entitled to attach such weight as any of the matters as may be appropriate in the circumstances of the case: section 4AA(5). In this case the following matters listed in section 4AA(2) are as follows:

   a)The parties lived together from before the time of their divorce on 7 June 1990 until the applicant moved out of the home on 12 July 2012. Therefore I do not need to consider this factor any further;

   b)The parties also agree that there has been an intermingling of their finances although the respondent argues that this is in the context of being business partners;

   c)The parties also agree that they have had a sexual relationship. They disagree about when their sexual relations ceased.

7. The factors which are disputed which I must give consideration to are as follows:

   a)the duration of the relationship;

   b)the degree of financial dependence or interdependence and any arrangements financial support between them;

   c)the degree of mutual commitment to a shared life;

   d)the reputation and public aspects of the relationship.

8. Moby & Schulter [2010] FamCA 748 also involved a dispute about whether or not the parties were in a de facto relationship and if they were there was a dispute over the periods they were in such a relationship. In that case the parties disagreed about many of the material facts. As a consequence of this the credibility of the parties and their supporting witnesses was very important. This is also the case here.

9. The respondent relied on the Full Court decision of Jonah & White [2012] FamCAFC 200. The facts in that case were very different to the facts before me. In that case the respondent was married and his wife was unaware of his relationship with the appellant. The respondent and appellant kept their relationship secret. They spent two or three days together every two or three weeks. They kept their financial affairs separate. In that case the respondent argued that their relationship was nothing more than an affair. The trial judge found that neither party was seeking to deliberately mislead the court. He said that the core of a de facto relationship with the manifestation of “coupledom” which involves the merger of two lives. The Full Court confirmed that none of the matters referred to in section 4AA(2) has precedence over any other and not all of the must be found before the court can make a finding that the parties were in a de facto relationship.

10. It is also clear from the section that the fact that a party may be married to someone else and therefore in another relationship at the same time do not preclude the court from finding that the parties were also in a de facto relationship.  A party may also have been in two de facto relationships at the same time. This of course would be a relevant factor to consider in determining whether or not a de facto relationship exists. In the case before me it is clear that the respondent has had relationships with other women at various times during the parties’ relationship. None of these relationships can be elevated to that of a de facto relationship and in my view do not take away from the nature of the parties’ relationship. The applicant was aware of at least some of these relationships. It is important to note that there is no legislative requirement that the relationship be a happy one or even a functional one. It is clear that at least for parts of the time both parties were unhappy in the relationship.

11. The respondent argues at paragraph [11] of the respondent’s written submissions that paragraph [35] of the Full Court decision in Jonah & White [2012] FamCAFC 200 is authority for there being an overarching requirement that the parties have a mutual intention to have such a relationship. In my view this is elevating a single line of obiter to a new principle of law. If the Full Court had intended to do this they would have made this clear as it would be adding a new requirement over and above the legislative requirement in section 4AA.

12. If I am wrong about that intention, it does not need to be expressed verbally but can also be inferred by actions such as continuing to live together and continuing to provide financial support.

13. It is necessary to look at the relevant parts of section 4AA in some detail. Section 4AA(3) of the Act makes it clear that no particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship. Subsection 4 says that a court determining whether a de facto relationship exists is entitled to have regard to such matters and attach such weight to any matter as may seem appropriate to the court in the circumstances of the case.

(a) The duration of the relationship

1. The respondent says that they remained living together in the same house as a matter of convenience but were only friends and business partners. The respondent said in cross-examination that the nature of the relationship changed when they became business partners in 2000. He says before that they lived as a couple and after that they did not. Each was free to do their own thing. I do not accept the evidence of the respondent. He did not provide any credible evidence to show a change in the nature of their relationship at any time after the divorce, in 2000, in 2004 or in 2008.

(b) The nature and extent of their common residence

1. There is no dispute that the parties lived in the same residence from the time they were married until the applicant left the home on 12 July 2012. They did not live separately and apart even for 12 months before the divorce despite what they swore in the divorce papers.

2. This factor favours the existence of a de facto relationship.

(c) Whether a sexual relationship exists

1. There is no dispute that the parties continued to have a sexual relationship after they were divorced. The respondent says that they have not had sexual relations since January 2004 when the applicant had an operation in (omitted). The applicant says they continued to have a sexual relationship until shortly before the day they separated.

2. I prefer the applicant’s evidence to the respondent’s. 

3. If they were just friends and business partners, one would expect the applicant to have her own bedroom even if they continued to have sex from time to time.

(d) The degree of financial dependence or interdependence, and any arrangements for financial support, between them

1. It is clear that there was a significant degree of financial interdependence between the parties. The respondent says that this is because they had a business partnership. However it seems clear it went beyond this as the respondent himself says in his affidavit. He says he financially supported her. Why would he do that if they were only friends and business partners?

2. The parties bought and sold several properties over the years. The parties held properties as joint tenants. The respondent caused his lawyers to write to the applicant’s lawyers advising of his intention to sever the joint tenancies in August 2012.

3. The respondent claims that he did not know they held properties as joint tenants. His common refrain was that the applicant was responsible for all of the paperwork. I do not accept his evidence. The respondent had already been in the (omitted) business for several years. I do not accept that he would have handed over effective control of the business to a woman without experience.  I accept that the applicant went to appointments with accountants and others but she was acting on his instructions. The respondent contradicts himself in his own evidence as he concedes that he is directive with people.

4. The respondent also complains that the applicant kept his children and family out of the business. He says his sister Ms F left the home because she could not take it anymore[4]. It is not credible that he would allow this to happen unless they were in a de facto relationship and not just business partners.

   [4] Transcript dated 19 June 2013, page 139

5. A common answer of the respondent was that he was not responsible for preparing documents. It was either the applicant or the accountant. The respondent denied knowledge of what was going on with the paperwork.  It is not credible that he would do this if he and the applicant were only business partners. This is particularly the case given he had already been in business for many years. I do not believe him.

(f) The degree of mutual commitment to a shared life

1. This is a significant area of dispute in this case. There are some factors which favour this factor and others which mitigate against it.

2. There is no legislative imperative that the relationship be a happy one or a healthy one. I accept it was not always happy. The respondent was open about seeing other women and no doubt the applicant felt insecure and was fearful that she might be replaced.

3. The legislation also makes it clear that parties can be in a de facto relationship and be in another relationship at the same time.

4. The actions of the respondent sponsoring other women to come to Australia is a factor against there being a mutual commitment to a shared life.

5. The respondent says that he donated sperm whilst the applicant under went several IVF treatments as a friend and not because he wanted to have a child with her. I do not believe him. They were living in the same house. A child born as a result of the IVF treatment presumably would have been raised in the same house. The respondent’s evidence is not credible.

1. The respondent filed six affidavits in these proceedings. The same paragraph [8] is repeated in his affidavit of 2 November 2012, 23 November 2012 and 13 June 2013, wherein he stated that he never told her he loved her during the 26 year period they lived together. He acknowledged that when he signed those affidavits he swore to tell the truth.

2. The respondent contradicts himself in his affidavit of 13 June 2013. At paragraph [8] he says he never told the applicant he loved her.  Then at paragraph [113] of the same affidavit when the respondent replied to Ms L’s affidavit, he says he told people he loved them when they did something for him. He also gave the same contradictory oral evidence.

3. Certainly the applicant was more committed to the relationship than the respondent. However there is evidence which is consistent with the respondent showing some mutual commitment at different times.

(g) Whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship

1. The relationship was not registered.

(h) The care and support of children

1. The respondent says that the applicant did very little for his children whilst they were living with them. I think the respondent is minimising the applicant’s role. I accept that whilst Ms F was living in the house, she would have played a significant role in their care and in running the household, but I do not accept that the applicant did not provide any assistance. The respondent and Ms F were clearly determined to portray the applicant in as negative a light as possible.

2. This is a minor factor in favour of the existence of a de facto relationship but is not determinative.

(i) The reputation and public aspects of the relationship

1. It is clear from the respondent’s own evidence that he did not tell many of his family members about the divorce.

2. Exhibit A8 is the respondent’s notice of amended tax assessment and tax returns the year ending 30 June 2010.  He refers to the applicant as his spouse on his tax return. The respondent claims that whilst he signed this document, he did not read it and did not read the declaration about it being true and correct.  He was not a truthful witness and I do not accept his evidence on this point. It is a serious matter to make false declarations to the tax office. He also makes the private health claim.

3. Exhibit A9 is a Medibank transfer certificate. It shows that the parties had a joint membership with both names appearing on their Medibank Private cards and the reference to the respondent as spouse. The applicant removed the respondent from the policy on 18 February 2013.  It also shows historically Mr A Kellner and Ms O were listed on the policy as dependent students.  That document notes that as at 12 December 2012 the respondent was the policy holder, the relationship was that of spouse to the applicant and noted that the date joined was 12 December 1995.  He also claims that the applicant arranged “all these things” including private health cover. The children were not the applicant’s biological children and she was not their guardian, it stretches credibility that she would add them to a family health fund without it being at the respondent’s instruction. He also claimed that he never made a single claim on private health, only Medicare.

4. The business working account paid for the private health insurance.

5. The Medicare and tax accounts support the applicant’s claim.

6. He was unable to produce his Medicare card. He conceded that his old card had two names on it. He claims that he did not know that that meant they were family. He again said he did not prepare any of the documents.

7. The applicant could not have children. The respondent provided sperm so that she could undergo IVF which she did on several occasions from 1989 to 1996.

8. They both live in Darwin. He agreed that they have attended family events such as Christmases each year. The respondent conceded that the applicant was invited to his children’s weddings. He says he did not see the invitations. He said they may have addressed the invitation with the applicant as his wife because they saw them together. He then said that the young ones did not know they were separated and did not know what their living arrangements were[5]. I find that the parties attended family and social gatherings as a couple.

   [5] Transcript dated 19 June 2013, pages 48-49

Conclusion

1. I am comfortably satisfied on the balance of probabilities that the parties were in a de facto relationship from the time they divorced until 12 July 2012.

2. The applicant seeks a declaration pursuant to section 90SK satisfying the geographical requirement of the Act. As there is no controversy that the parties lived in the Northern Territory for the whole of their relationship.

3. Neither party raised this issue but another option is for the applicant to seek leave to bring an application for property settlement out of time under section 44(4) of the Family Law Act 1975 (Cth).

4. Given the circumstances of this case it is likely that such leave would have been granted but that is not a matter I have to decide.

I certify that the preceding one hundred and twenty one (121) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date:     17 December 2013