Kendell & Vilmos - [2022] FedCFamC2F 1484

Federal Circuit and Family Court of Australia
(DIVISION 2)
Kendell & Vilmos [2022] FedCFamC2F 1484

File number(s): ADC 641 of 2019

Judgment of: JUDGE BROWN

Date of judgment: 4 November 2022

Catchwords: FAMILY LAW – De facto relationship – application for declaration that de facto relationship existed between applicant and respondent – parties involved with one another in a variety of contexts between 1994 and 2017 – jurisdictional prerequisites of de facto relationship – whether 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

Family Law Act 1975 (Cth) Pt VIIIAB, ss 4AA, 4AB, 90RA, 90RD, 90SB, 90SK, 90SM

Commonwealth Powers (De facto Relationship) Act 2009 (South Australia)

Cases cited:
Fairbairn v Radecki (2022) 400 ALR 611

Fox v Percy (2003) 214 CLR 118, 129

Gillam & Barre [2022] FedCFamC1F 465

Jonah v White (2012) 45 FamLR 45

Jones & Dunkel (1959) 101 CLR 298

Lynam v Director-General of Social Security (1983) 52 ALR 128

Moby & Schulter (2010) FLC 93-447

Railpro Service Pty Ltd v Flavel [2015] FCA 504

RPS v R (2000) 199 CLR 620

Sinclair & Whittaker (2013) FLC 93-551

Taisha v Peng (2013) 48 FamLR 150

Division: Division 2 Family Law

Number of paragraphs: 323

Date of last submission/s: 27 June 2022

Date of hearing: 26, 27 & 28 April 2022

Place: Adelaide

Counsel for the Applicant: Mr Roberts

Solicitor for the Applicant: Robert Chrzaszcz & Associates

Counsel for the Respondent: Mr Richards

Solicitor for the Respondent: Tessa Hume
ORDERS

ADC 641 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS KENDELL

Applicant

AND:
MR VILMOS

Respondent

order made by:

JUDGE BROWN

DATE OF ORDER:

4 november 2022

THE COURT ORDERS THAT:
Upon noting that the Court declines to make any declaration pursuant to section 90RD of the Family Law Act 1975 (Cth).
1.The Application filed on 19 February 2019 is hereby dismissed and the proceedings are otherwise finalised.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Kendell & Vilmos has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION

Ms Kendell and Mr Vilmos have known each other since 1994. They met at a nightclub, when Ms Kendell was aged about 20 and Mr Vilmos was aged about 26. They were immediately attracted to one another and began an intense relationship soon after.
Between 1994 and May 2018, a period of around 24 years, they interacted with one another frequently in a variety of settings, which included financial, employment, sexual, social and domestic ones, as well as remaining friends, who made each other laugh. Undoubtedly, they know each other very well.
These proceedings are concerned with characterising the nature of the relationship between the two for legal purposes but particularly determining whether it is one which can be characterised as a de facto relationship, falling within the parameters of Part VIIIAB of the Family Law Act 1975 (Cth).[1]
[1] Hereinafter referred to as “the Act”.
Over the course of their involvement with one another, which took each of them from youth to middle age, the nature of their relationship changed, as many relationships, including those between married spouses, do. However marriage and de facto relationships are defined by very different legal criteria.
De facto relationships differ from marital ones because the former, very often, derive their status over many events occurring over many years. Accordingly their definition depends on the perceptions of those involved in them and any individuals who observe the individuals concerned over time, unless the parties themselves elect to formally register the status of their relationship.
On the other hand, marriages gain their legal status as a consequence of a single event – a marriage ceremony, which results in a formal marriage certificate – the status of which is unaltered by any subsequent change in the emotional topography or other dynamic between the spouses concerned until either the death of one or their divorce.
These considerations and the changes which have occurred in the nature of Ms Kendell and Mr Vilmos’ relationship over time, have implications for the application of the relevant legal principles, which are subject to commencement times stipulated by the actions of the relevant legislature, which in terms of the State of South Australia, commenced to have application on 1 July 2010.
From Ms Kendell’s perspective, the parties’ relationship, although it might have been considered weird in other people’s eyes, marked as it was by the parties’ respective sexual involvement with other partners, over very many years and the fact that they slept in separate residences, is to be considered as one marked by them being a couple living together on a genuine domestic basis.[2] It is her case that, from around 1994 until what was a single traumatic event occurring in May of 2018, she and Mr Vilmos are to be regarded as a couple for the purpose of the law.
[2] See Family Law Act 1975 at s 4AB.
On the other hand, Mr Vilmos asserts that possibly, although he does not concede it, the parties might be regarded to have joined together in some form of coupledom, which involved a mutual sharing of their lives, this aspect of their relationship ended or fizzled out around 2006, when Ms Kendell became emotionally involved, to a significant degree, with other persons, with whom she lived for several years. The most significant of whom is a person by the name of Mr B.
Mr Vilmos concedes that he and Ms Kendell remained involved with one other, after 2006 and were, in the main, on good terms. However, he denies that they were a couple, in any legal sense of the word, after 2006. Rather, the effect of his case is that she was part of his household, on an informal basis, and performed various tasks for him, which he could not perform easily for himself and because of the friendship, which remained between them, he trusted her to the right thing by him and his property.
Essentially, Ms Kendell remained a part of his entourage, because of the familiarity between the two, her role in his life, falling somewhere between that of major domo or Girl Friday. However, he asserts that when he discovered Ms Kendell was dishonestly abusing his trust in her, he had no alternative other than to end this unusual relationship between the two.
Ms Kendell denies any breach of trust between the two. It is her case that it is axiomatic that because she had the free run of Mr Vilmos’ home and full access to all his finances, although some aspects concerning the sexual or romantic nature of the parties’ relationship had changed, the two remained a couple, who had sufficiently fused their lives together to be considered a de facto couple.
The main focus of Ms Kendell’s case is on economic issues centred on her involvement in a business – Company C, which operated a building business. It is her case that this was a jointly owned and run enterprise, in which she and Mr Vilmos both played an integral role and which provided her sole source of financial support from 1999 onwards, until she was ejected from the business in May of 2018, at the instigation of Mr Vilmos’ sister, Ms D.
During this period, Ms Kendell was not paid a formal wage; did not receive superannuation payments or holiday pay; did not pay tax; or was in any way recorded as any sort of formal employee. However, throughout this period, she had unfettered access to a credit card; drove a motor vehicle supplied by the business; and withdrew monies from its bank account, for her own use and that of Mr Vilmos.
In these circumstances, as she was not an employee, it is her position that it can only be the case that she was the other half of a couple, with Mr Vilmos, who were engaged in a business together as domestic partners. In addition, she was indispensably involved in the formal business structure of the business; negotiated with its financier to such an extent that she appeared on loan documents; and attended at its other business premises in Suburb E.
It is also Ms Kendell’s case that she attended at the business premises of Company C, primarily located at F Street, Suburb G (also Mr Vilmos’ residential accommodation), where she cleaned; swam in the swimming pool; and kept items of her personal accoutrements. Essentially, she kept house for him, for which she received no formal wage.
The effect of her evidence being that she had the run of the place, which she treated as her own, although she did not sleep there. Rather, it was from these premises that she conducted the business affairs of herself and Mr Vilmos, for which she received no formalised payment and otherwise did things for him, such as purchasing his cigarettes and concert tickets.
On the other hand, Mr Vilmos characterises himself as a financial naïf, who although very adept in the physical and practical aspects of his business, is functionally illiterate and innumerate, with no ability to access information through a computer or utilise such services as internet banking.
It is his case that any intimate relationship, which he shared with Ms Kendell, came to an end at the latest in 2006 – thus prior to the commencement of the relevant legislation. However, thereafter, as she had done before, Ms Kendell continued to help him out in his business, in an ad hoc manner answering the phone; opening the mail; and filing invoices.
As he suffers from dyslexia and cannot operate a computer, it suited Mr Vilmos to have Ms Kendell around but her formal status, as an employee or her exact designation, was never sorted out, given the origins of their relationship in a love affair, which transmogrified into a friendship over time, involving him being content to allow her to provide a variety of services to him and his business.
In these circumstances, Mr Vilmos acknowledges that Ms Kendell had access to all accounts and he went to her if the business needed to purchase something. He also agrees that she liaised with his accountant in regards to the business’ financial returned and statements because he could not. Essentially, he agrees that he gave Ms Kendell full reign to all his financial affairs because he trusted her. It is now his case that she breached his trust and overstepped the mark in respect of his financial affairs.
In these circumstances, Mr Vilmos does not deny that he saw Ms Kendell regularly, if not daily, and she was in and about his home, at Suburb G, and was intimately involved in his financial affairs and indeed the weft and wafts of his daily life. He does not dispute there was a significant level of affection and familiarity between the two.
However, the tenor of his case is that he was disinterested in the financial minutiae of his affairs and trusted that Ms Kendell would take what was due to her, including in respect of the use of a motor vehicle, essentially because he was a generous guy and it was fun to have Ms Kendell around as the two were friends, who had always liked to have a laugh together.
In these circumstances, he emphatically rejects the contention that the two could be regarded as a couple, certainly from 2006 onwards, in the sense envisaged by the relevant section of the Act. Rather, the parties had an unusual but mutually supportive relationship with one another, which was based on his need to have someone to do his everyday business and running around for him.
From Mr Vilmos’ perspective, this arrangement came to an abrupt end in May of 2018, when through the agency of his sister, Ms D, he discovered that Ms Kendell had been systematically embezzling significant sums of money from him over many years. As a consequence, it was necessary for him to expel Ms Kendell from having any ongoing involvement in any aspect of his life.
In Mr Vilmos’ own terminology, he is not a papers guy. In these circumstances, he trusted Ms Kendell to do the right thing by him, which meant that until May 2018, he had blinkers on, so far as she was concerned.[3] From his perspective, this concession is not asserted to amount to any acknowledgement of a de facto relationship between him and Ms Kendell. Rather, he felt some form of obligation towards her as a consequence of past and continuing friendship and he believed she could assist him in dealing with some aspects of his business.
[3] See Transcript at page 112.
Essentially, it is Mr Vilmos’ case that Ms Kendell cynically maintained the parties’ unusual relationship with one another, so that she could steal from him. Whilst this state of affairs continued, he asserts that both he and Ms Kendell drew emotional and sexual solace from others. In particular, in Ms Kendell’s case, between 2010/11 and over many years, with a person known as Mr B, with whom she lived.
Ms Kendell does not disagree that she kept some aspects of her life secret from Mr Vilmos, but asserts that he did the same so far as she was concerned. It is her position that she was compelled to continue with what she concedes was a highly unorthodox relationship but only because its nature deprived her of the financial security to which she was due because of her long standing committed to Mr Vilmos and he had threatened her, in the past, that he would kick her out with nothing, if he discovered she was involved with another man.
Essentially, Ms Kendell asserts that, to a large extent, she and Mr Vilmos were locked in a de facto relationship, in which she was subject to some degree of coercion and control from Mr Vilmos, which did not lend itself to transparency occurring between them. She alleges that she was not in a position to leave the relationship because of the financial control he wielded over her.
However, from her perspective, although the relationship between them was unusual and perhaps might be shocking to members of the community, it can only be described as one subsisting between members of a couple. Mr Vilmos would have it otherwise.
These reasons for judgment are directed towards resolving this issue and determining whether a de facto relationship did or did not subsist between the parties, and if it did, whether the relationship, as one of a de facto nature, ceased on or before 1 July 2010. This issue can be characterised as a jurisdictional fact.[4]
[4] See Jonah v White (2012) 45 FamLR 45 at 460.
At an earlier stage, the parties agreed that it was expedient to bifurcate the case into two components – the first as to whether a de facto relationship existed between the parties; the second, if required, as to what alterations of property rights should be made.
The hearing into this first issue took place over three days between 26 April and 28 April 2022. During this period, each party was represented by experienced counsel and each was exhaustively cross-examined by the other’s counsel. In addition, Ms Kendell called her own mother, Ms H, and a friend, Ms J.
In addition, I have been provided with numerous documents. Many of these are of a financial nature and relate to Ms Kendell’s involvement in companies and trusts relating to Company C and monies withdrawn, by her, from various bank accounts. It is the position of Mr Vilmos that these documents provide irrefutable proof of Ms Kendell’s embezzlement from him and support his contention that such a degree of dishonesty cannot be congruent with a de facto relationship existing between the two.
Following the evidence, due to the complexities of the issues raised in the case, counsel for each party requested to prepare detailed written submissions for the court’s consideration. Necessarily, it took some time for these submissions to be prepared.
However, the essential case for the court is whether the parties were a couple, living together on a genuine domestic basis. It is on this issue, which the court must remain focussed upon. It is not to be regarded as a term of art – that is an expression having a particular meaning in a legal context.[5]
[5] See Moby & Schulter (2010) FLC 93-447 at 85,067[167] per Mushin J.
Rather, I must bear in mind that the myriad circumstances of modern life and the vagaries of human nature necessarily have the potential to throw up diverse relationships, which fall outside the norm of everyday life and so defy easy characterisation. Such relationships may attract the moral disapprobation of some but still fall within the purview of the relevant legislation.
It is not my function to pass moral judgment on the parties concerned in this case. Every case is different and all human relationships idiosyncratic to some degree. Necessarily the relevant phraseology of the Act and it application to the facts in the case must take account of the many various ways in which two people may share their lives together in the modern world.[6] The permutations of human engagement are infinite and thus incapable of complete formulation by any legal rubric.
[6] See Fairbairn v Radecki [2022] HCA 18 at [33].
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.
As previously indicated, the parties in the present matter have sensibly decided to request the court to determine this issue as a discrete matter. This is expedient both in terms of the parties’ financial resources and the utilisation of the facilities of the court.
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 jurisdictional 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 this particular case, the relevant jurisdictional fact and the criteria relating to it are 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.

Clearly, there is no dispute that Ms Kendell and Mr Vilmos are not married to one another and are not related within the terms envisaged by section 4AA(6). There is no question of adoption or biological relationship.
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. Accordingly the fact of Ms Kendell’s relationship with Mr B or any other person does not of itself negate the possibility that there was a concurrent de facto relationship occurring between her and Mr Vilmos.
In addition, the wording of section 4AA(3), in reflection of the multiplicity of permutations of possible de facto relationships, records that no particular finding is be regarded as necessary in determining whether relevant parties are in a de facto relationship. As a consequence the court is conferred with a broad discretion in respect of its determination of the jurisdictional task conferred upon it. The section reads as follows:
(4) A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
However, as with all discretions conferred on the court, it is one which must be exercised judicially and is not one which is completely unfettered. In this context, the Legislature has provided guidance for the court in the form of section 4AA(2), which 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[7] 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.
[7] See Taisha v Peng (2013) 48 FamLR 150 at 152.
Mushin J in Moby & Schulter[8] 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.[9]
[8] See Moby & Schulter (2010) FLC 93-447 at 85,063.
[9] See Taisha v Peng (2013) 48 FamLR 150 at 153.
In Gillam & Barre[10] Harper J indicated that section 4AA(2) set out:
…a statutory range of circumstances which may demonstrate the parties were in a de facto relationship. But, it should be remembered that section 4AA does not require the court to carry out a specific evaluation and/or weighing up of the factors in favour of and against a finding of a de facto relationship.
[10] Gillam & Barre [2022] FedCFAmC1F 465 at [50].
Accordingly, the court has some latitude in how it approaches the jurisdictional task conferred upon it. It remains a question of fact to be determined from the particular circumstances of the case concerned. As such one fact alone may have pre-eminence or a range of facts. It is also frequently the case that there will be countervailing factors. The court must avoid glib formulations or assumptions. The court must have regard to all factors arising in the case and give the weight to them, which it considers appropriate.
In my respectful view, Fitzgerald J eloquently expressed the nature of the task of assessing whether or not a de facto relationship existed between individuals, in the following terms, in Lynam v Director-General of Social Security:[11]
Each element of a relationship draws its colour and its significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.
[11] Lynam v Director-General of Social Security (1983) 52 ALR 128 at 131.
It is a common phenomenon, as is the case in the present matter, for parties who are significantly involved with one another, to have every different and indeed conflicting views concerning the nature of their relationship. As such, a person’s individual perception of the nature of his/her relationship with another person cannot be determinative of the existence of a de facto relationship. In these circumstances, the ultimate decision as to whether there is a de facto relationship at any given time is a matter for the court and not for the parties…their perceptions of the nature of the relationship are a relevant matter but not determinative.[12]
[12] See Sinclair & Whittaker (2013) FLC 93-551 at 87,395 [65].
Definitively, in Fairbairn v Radecki[13] the High Court has explained the application of section 4AA as follows:
Section 4AA(1)(c) identifies the relationship which is the concern of the Act: "a relationship as a couple living together on a genuine domestic basis". The existence of such a relationship is determined having regard to "all the circumstances" of a relationship; significantly, those "circumstances" include any or all of the circumstances listed in s 4AA(2), and, by reason of s 4AA(3), no particular finding about any circumstance is necessary for there to be a de facto relationship. Consistently with the reality that human relationships are infinitely mutable, in determining whether a de facto relationship exists a court is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate [s 4AA(4)].
[13] Fairbairn v Radecki [2022] HCA 18 at [28].
Accordingly, the central issue in cases concerning the existence or otherwise of de facto relationships is the concept of living together as a couple. Relevant authority makes it clear that the concept does not require cohabitation, in the sense of the individuals concerned, living in the same dwelling. Again in Fairbairn the High Court indicated as follows:
Living together for the purposes of s 4AA(1) will often, perhaps usually, mean cohabitation of some residence by a couple for some period of time. But cohabitation of a residence or residences is not a necessary feature of "living together". That phrase must be construed to take account of the many various ways in which two people may share their lives together in the modern world. Two people, for any number of reasons, may not reside in the same residence, but nonetheless be in a de facto relationship in the sense required by s 4AA.
…
…physical cohabitation at a single home or homes is not a necessary feature of an ongoing relationship whether by way of marriage or otherwise; it is not an irreducible minimum that all relationships must exhibit.
…
"Living together", consistently with authority, should be construed as meaning sharing life as a couple. Section 4AA does not prescribe any way by which a couple may share life together. Its language is sufficiently broad to accommodate the great variety of ways a de facto relationship may exist. That conclusion is supported by the varied factors listed in s 4AA(2). In a given case, some of the factors listed in s 4AA(2) may be relevant and some may be irrelevant; inevitably some may have greater prominence than others. A conclusion that a de facto relationship has ended may also arise because of factors not listed in s 4AA(2). Such a conclusion is mandated by s 4AA(3) and (4). In particular, s 4AA(4) is a statutory recognition that what may constitute a genuine de facto relationship is not be determined in the same way in every case by reference to rigid criteria that must always be satisfied. In that respect, the language of s 4AA(2)(b) does not assume that every de facto relationship must have a "common residence" to some "extent" and of some "nature". Such a construction is entirely denied by s 4AA(3).
(Footnotes and citations omitted)
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.[14]
[14] See Jonah v White [2011] FamCA 221 at [60].
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.[15]
[15] See Moby & Schulter (2010) FLC 93-447 at 85,067.
As indicated above, pursuant to section 90RD(2)(d), the court may make a declaration as to when a de facto relationship has ended or in others words indicate when the prerequisite state of coupledom, as defined by section 4AA has ceased. Necessarily, this may not be established by a single action but may be represented by an agglomeration of events. The perceptions of the parties themselves, as to their status, may be a relevant consideration but is not determinative.
In the present matter, the parties concerned clearly had a personal relationship of some kind between their first meeting in 1994 and the dramatic events of May 2018. It is also clear that the nature of terms of that relationship changed over time. The central evidentiary issues, for the court, in the current matter are as follows:
·was it ever a de facto relationship;
·if so, what was its duration;
·did it end;
·if so, when did it end.
Again, in Fairbairn, the High Court has indicated that the criteria appearing in section 4AA(1)(c) are crucial to the resolution of when a de facto relationship (or state or coupledom) ceases. It does not necessarily entail a complete cessation of all forms of social and/or physical engagement between the individuals concerned. The issue is to be determined by reference to all the circumstances prevailing in the case.
The High Court said as follows:
A de facto relationship will have broken down when, having regard to all the circumstances, the parties no longer "have a relationship as a couple living together on a genuine domestic basis". Such a conclusion is not precluded by the presence of an ongoing relationship of some sort. That is not the inquiry. The question is whether a de facto relationship exists or has broken down.
In the context of a human relationship, "breakdown" refers to the "end" or "breakup" of what had been an enduring emotional bond. It is the "breakdown" or "end" of a de facto relationship that is the trigger point for the Federal Circuit and Family Court to be seized of jurisdiction to make a property settlement order under s 90SM of the Act. It would make no sense for such a jurisdiction to arise before a de facto relationship had ended.[16]
[16] Fairbairn v Radecki [2022] HCA 18 at [29] – [30].
In the present matter, Mr Vilmos asserts that if there was any such enduring emotional bond arising between him and Ms Kendell, it had broken down by 2006. Ms Kendell would have it differently. She asserts that there was such a bond between her and Mr Vilmos, which persisted after 2006 until May 2018 and which was characterised as the two living together, as a couple, on a genuine, albeit unconventional basis. The controversy regarding if and when the relationship ended has other significance in the case.
This court has jurisdiction in respect of de facto relationships which arise in what is characterised as a participating state [section 90RA(2)]. Its jurisdiction also has a geographical component [section 90SK]. Essentially, the parties concerned must live in a participating state at relevant times. There is no dispute that any geographical requirement is satisfied.
There is no controversy that South Australia became a participating state with the passing of the 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.
Accordingly, I accept that this court has no jurisdiction to make a declaration in respect of the existence of a de facto relationship in the current matter if such a relationship was not in subsistence as at 1 July 2010. This is Mr Vilmos’ position. Ms Kendell asserts that such a relationship sufficient to satisfy section 4AA(1)(c) subsisted long after this date.
Finally, section 90SB provides a number of other requirements which must be satisfied before the court is imbued with jurisdiction under Part VIIIAB. Counsel for Mr Vilmos has characterised these as gateway requirements which must be satisfied after the court has determined that a relevant de facto relationship exists. They can be summarised as follows:
·The period or total periods of the de facto relationship amount to at least two years; or
·The relationship produced a child; or
·The applying party made substantial contributions in the relationship; or
·The failure to make a declaration would result in serious injustice to the applicant; or
·The relationship is or was registered under a prescribed state law.
STANDARD OF PROOF
The task set for me in these proceedings is to attempt to categorise and summarise the nature of the relationship between the parties concerned over a period well in excess of twenty years. I must do so on the basis of affidavit evidence and my own impressions of the parties gathered from their presentation in the artificial confines of the witness box, whilst being subject to the rigours of professional and expert cross-examination.
It has been a difficult task to summarise the parties’ evidence in a clear chronological form, given the length of time involved and the multiplicity and disparate nature of the parties’ involvement with each other. In addition, life does not always provide clear points of demarcation. Accordingly, I am conscious that my recording of the evidence is likely to be perceived as being somewhat disjointed.
To some extent, this reflected the evidence of the parties themselves, which also jumped about and consisted of bald generalisations. What is clear that much of the parties’ evidence, most particularly in respect of financial issues arising in respect of Ms Kendell’s involvement in the business, are diametrically and irreconcilably in conflict. Only one of them can be telling the whole truth.
In these reasons for judgment, findings of fact are made on the balance of probabilities, from my observation of the demeanour of each of the witnesses concerned.[17] I have tried to reach my conclusions on credibility and reliability ‘on the basis of contemporary materials, objectively established facts and importantly, on the apparent logic of events’.[18]
[17] See Evidence Act1995 (Cth) s 140.
[18] See Fox v Percy (2003) 214 CLR 118, 129 [31] (Gleeson CJ, Gummow and Kirby JJ).
In addition, I bear in mind section 140(2) of the Evidence Act 1995 (Cth), which indicates that in applying this standard of proof, I am entitled to consider the nature of the subject-matter of the proceedings and the gravity of the matters alleged.
Ms Kendell bears the onus of establishing whether the parties were in a de facto relationship, which either continued or commenced after 1 July 2010 and otherwise as to the gateway provisions contained in section 90SB.
Neither party, in my assessment, can be regarded as being perfect in their recollection of what occurred in their relationship. How can it be otherwise, given they are each being called upon to recall events which occurred many years ago – including evidentiary issues central to the disposition of this case, which are now more than a decade old.
In addition, for obvious reasons, each of them has emphasised matters, which assist their particular case. In this context, once again, it must be noted that Ms Kendell bears the onus of establishing, at relevant times, that she and Mr Vilmos were in a de facto relationship for the purposes of the legislation. Necessarily, this will require her to provide evidence which relates to specific time frames, particularly after July 2010.
In this context, I did not find her to be a compelling witness. She did not have the facility to relate events, in her personal life, with other events on equivalent dates, sufficient to demonstrate clearly when the relevant indicia of what she asserted was the nature of her relationship with Mr Vilmos actually occurred. For the reasons which follow, I disbelieved much of her evidence regarding her involvement in the business.
In addition, it is my finding that Ms Kendell misstated significant aspects of her evidence in an attempt to buttress her case. As such, I do not regard as being a wholly reliable witness overall. One of the more significant aspect of this concerned her relationship with Mr B.
I am of the view that she consciously suppressed aspects of her relationship with Mr B knowing that, if she was frank about this relationship, it would significantly undermine her assertion that she was in a de facto relationship with Mr Vilmos from 2010 onwards and what was the nature of her true motivation for continuing to visit the Suburb G home so regularly.
Ms Kendell’s evidence was replete with generalities and assertions regarding the relationship rather than specifics. In these circumstances, my overall impression was that the her evidence can be characterised as a melange of assertions, which coalesced around her position that she and Mr Vilmos were in a de facto relationship, throughout the time in which they were involved with one another. The major generalised assertion being that the business was our business in the sense that she and Mr Vilmos were its proprietors and therefore the income it produced was collectively theirs and therefore she had some sort of authority to do with it as she wished.

Mr Vilmos’ evidence was also characterised by generalisations. However, in a formal sense, he does not bear an onus to negate the effect of Ms Kendell’s evidence. He accepted that he and Ms Kendell had had a long involvement with one another. However, the effect of his evidence was that the nature of this relationship changed over time, with Ms Kendell, in effect, being kept on in his household as a person who provided a variety of informal services to him and his business, which he found useful to some degree.
In essence, she was some sort of major domo to his somewhat unconventional household. However, he refutes any suggestion that at relevant times, there was any aspect of coupledom between the two. Rather because of his compromised levels of literacy and lack of understanding of business formalities, he relied on Ms Kendell to do all manner of things for him, on the basis that she would ensure that she was properly recompensed for what she did, within appropriate parameters and therefore the business in a practical and equitable sense remained his.
In this context, Mr Vilmos does not disagree with Ms Kendell that the nature of their relationship, with one another was unusual and, as such, not one which fitted comfortably within the usual norms of employer and employee, being more analogous to one based on friendship and long term familiarity.
Mr Roberts, counsel for Ms Kendell is critical that Mr Vilmos failed to call Ms K, to whom he referred in an earlier affidavit as a person with whom he was in sexual relationship from 2006 to 2015.[19] It is Mr Robert’s submission that Mr Vilmos’ evidence was vague and contradictory about this aspect of his life and this must have implications for his overall credibility. I do not accept this assertion. In my view, Mr Vilmos was candid about his sexual involvement with others. I accept, like Ms Kendell herself, he has had sexual relationships with many people over the preceding decade or so.
[19] See affidavit of the respondent filed 7 June 2019 at [36].
These are not, as yet, de facto property proceedings, being the parties, in the sense that the court is currently called upon to assess what is the potential pool of property available to be divided between the parties and what is the nature of the contributions each has made to the acquisition and preservation of that property. Rather, the case, as previously indicated, is focussed on a preparatory issue to this exercise, namely whether, at applicable times, a de facto relationship existed between the parties.
In this context, Mr Vilmos has resolutely resisted disclosing his current financial circumstances to the court on the basis that it is premature for him to do so, as he is under no obligation to provide full financial disclosure. However, notwithstanding this position, the degree of Ms Kendell’s involvement in Mr Vilmos’ financial affairs and the extent of his knowledge of the degree of this involvement, together with his personal level of understanding of its implications for him, in a fiscal sense, is one of the central, if not the fundamental issue arising in the case.
Mr Vilmos has an accountant, Mr L, who trades as M Chartered Accountants. Neither party has called Mr L to give evidence in these proceedings. However, Mr Vilmos’ solicitor has issued a subpoena to Mr L to produce a number of financial documents, relating to the parties’ financial and taxation affairs to the court.
It is the submission of Mr Richards, counsel for Mr Vilmos that Mr L was uncooperative in this process and demanded that the respondent pay him some extraordinary sum of money for legal costs to a lawyer to represent him (Mr L) in the proceedings. Accordingly, no evidence has been provided directly from Mr L as to what he was directed to do and by whom in respect of Mr Vilmos’ financial affairs and what was his personal understanding of the nature of the relationship between the parties. Neither party has asserted that any legal inferences are available to support their particular case as a result of the absence of his evidence.[20]
[20] See Jones & Dunkel (1959) 101 CLR 298.
Ultimately, Mr Roberts, counsel for Ms Kendell, tendered a bundle of documents, which the parties agreed could be labelled as the balance sheets and profit and loss statements for the Vilmos Family Trust for the years 2006 to 2017.[21] These documents indicate that from 2006 onwards, Ms Kendell had a beneficiary loan account with the Vilmos Family Trust. These clearly indicated regular distributions being made to Ms Kendell from the trust.
[21] See Exhibit A1.
In addition, Mr Richards tendered a bundle of bank statements in respect of Mr Vilmos’ account with Bank N from September 2004 onwards to April 2008.[22] The bundle is many pages in length and includes multiple transactions. Neither those statements nor the various trust statements have been subject to any level of independent audit.
[22] See Exhibit R2.
However, Ms Kendell was cross-examined about the Bank N statements and agreed that they revealed that she had regularly withdrawn significant sums from the account, by way of drawdowns. More significantly, she conceded that she had whited out her name as the recipient of amounts of monies debited from the account, on the resulting paper statements. In addition, Ms Kendell has been recorded as receiving director’s fees and been allocated distributions from the trust from 2004 onwards.
Mr Richards has subsequently tabulated the various withdrawals from 2004 onwards. They begin with the sum of $1,400.00 and culminate with $69,674.00 in 2017. In total the amount with drawn is calculated to be just over $1.2m in fourteen years, which includes significant payments attributed to Ms H.
Essentially, Ms Kendell asserts that she had either the implicit or implied imprimatur of Mr Vilmos to make the withdrawals in question because of the status of her relationship with Mr Vilmos. In cross-examination, she conceded that the sums had been withdrawn by her, at least in part, to pay her mother’s mortgage.[23]
[23] See Transcript at page 40.
Mr Richards specifically put the issue to Ms Kendell in cross-examination, asking why she had gone to the trouble of whiting out her name on all of the transfer made for her personal benefit. To which Ms Kendell replied:
I had to ask him even to get money to buy a toothbrush, and I was sick of being controlled. It’s like I had the golden handcuffs … I don’t know a lot of people in relationships that hide their spending from their other partner.[24]
[24] See Transcript at page 59.
It is the submission of Mr Richards that this answer is disingenuous and the only rational explanation for Ms Kendell concealing the transactions was that she was siphoning money from Mr Vilmos clandestinely, given the size of the sums involved and the regularity of withdrawals.
In these circumstances, it is Mr Richards’ submission, if the court does find Ms Kendell did engage in such dissemblance, regarding Mr Vilmos and his affairs, such behaviour is not consistent with any intention on her part to share her life with Mr Vilmos, as a couple living together. Rather, he asserts that Ms Kendell’s conduct represents a flagrant breach of trust.
On the other hand, Ms Kendell asserts that she used the money to buy stuff for his (Mr Vilmos’) house and shopping. She further asserts that she was sick of Mr Vilmos controlling her money. In this context, she justifies her behaviour on the basis that Mr Vilmos could have accessed the account, in question, if he had chosen to do so but was too lazy to do so.
Mr Vilmos seemed to me to be a person with some business acumen, particularly in terms of the ins and outs of the building industry. Clearly, he is no fool. Although I accept that he has difficulty with literacy and numeracy, I do not doubt that, at all relevant times not, he did not have some idea of how the business was tracking, which he would have judged by his capacity to maintain his usual lifestyle, not by what any document prepared by either his bank or accountant said. I accept that such documents were largely opaque to him.
Overall, I doubt that Mr Vilmos paid much attention to its fine detail of his business, being content to leave that to his professional advisers, amongst whom he would include, to some degree, Ms Kendell, whom he trusted. Whether he was able to actually comprehend such documents or whether he just ignored them is both unclear and irrelevant. However, in this context, I doubt that he has any sophisticated understanding of the niceties of corporate structures and the like. Rather he did what he was told to do by the people whom he trusted at the time.
He is also, in my assessment, a person who does not necessarily want to be seen as confined by the rigours of adherence to conventional mores or societal norms. He also likes to be seen as spontaneous and generous in his behaviour. Essentially, he does not care what other people think.
Ms H provides significant evidence of Mr Vilmos’ generosity towards her. She describes herself as a retired pensioner, who separated from her husband in 1999. The separation left her with a mortgage on her home. The evidence indicates that she is not well off. Mr Vilmos bought groceries for her and, on occasion, spontaneously provided her with spending money ($400.00) for a holiday to Queensland. Obviously, although this is to be regarded as a generous gift, it pales when put in comparison to the amounts received by Ms H ostensibly in cash, via her daughter.
My impression is that Mr Vilmos is loyal to those whom he regards as being his friends. This certainly includes both Ms H and also the applicant, at least until Mr Vilmos, on his case, discovered that Ms Kendell had not repaid his loyalty and trust in her in a manner which he regarded as being consistent with his behaviour towards her.
In this context, I must make some assessment of whether Mr Vilmos’ largesse would have extended to paying Ms H’s mortgage because of his love and affection for the applicant, which extended to her mother or whether such payments were made dishonestly, through the agency of Ms Kendell, without Mr Vilmos’ either explicit or implied approval.
The Evidence
Background
Ms Kendell was born in 1974. She has a Year 12 standard of education. Her evidence is that prior to meeting Mr Vilmos, she had managed a food business; worked in another food business and had periods of unemployment. Essentially, Ms Kendell does not have any specialised administrative skills. There is no controversy that the parties have no children. Currently, Ms Kendell is working as a tradesperson.
Mr Vilmos was born in 1968. He left school in Year 10. When the parties met, he lived with his brother and father at the premises he still occupies, which are located at F Street, Suburb G.
Mr Vilmos’ father had operated a building business before him, in which he (the respondent) had worked from the time he was a kid. In 1996, Mr Vilmos Senior gifted the respondent trucks, machinery, and premises located at O Street, Suburb P, which Mr Vilmos used to commence his own building business – Company C.
Mr Vilmos is highly skilled in building work. He is able to provide quotes on building jobs and has the necessary equipment to complete them. He employs sub-contractors to assist him to complete jobs. It is his evidence that he has worked hard in the business and it has steadily grown since 1998. There is no controversy that Mr Vilmos, although obviously astute so far as the practical sides of the business are concerned, is not adept in respect of administrative matters.
The early period of the parties’ involvement with one another
After the parties met, at a nightclub in 1994, each of them describes their relationship as being that of boyfriend and girlfriend. Mr Vilmos describes the initial portion of the parties’ relationship as being characterised by partying, clubbing together and with friends. He agrees that they went on holiday, with a group of friends, to the Region Q, in 1996. In 1998, they went on a skiing holiday to Town R. The parties began to engage in sex together soon after they met. When they met, Mr Vilmos was living at the Suburb G Property with his father and brother.
Mr Vilmos rented a flat in Suburb S at an uncertain date in the mid 1990’s. Ms Kendell stayed there overnight frequently, usually after the parties had gone out together. When the building business was growing in the late 1990’s, it was easier for Mr Vilmos to return to live in the Suburb G premises. Mr Vilmos’ father died in 1999 and he inherited the property from him.
When the parties met, there can be no doubt that Ms Kendell was living with her mother, Ms H, at Suburb U. Ms H was a pleasant and honest witness, who told the truth to the court, as best as she perceived and recollected it. In my assessment, she cannot be described as a worldly person.
Ms H clearly loves her daughter very much but my impression is that she did not always have a particularly accurate or realistic insight into the type of lifestyle her daughter was leading from time to time. It seems to me more probable than not that Ms Kendell would have wanted to keep some aspects of private life from her mother, particularly those which had an intimate dimension or were not likely to meet with her mother’s approval, such as illicit drug use.
It seems clear that Ms H had no personal knowledge of her daughter’s involvement with first Mr V and then Mr B or the fact, which Ms Kendell admitted in these proceedings, that a reasonably significant period of her recent life was subject to her heavy drug taking. Ms Kendell asserts that she did not tell Mr Vilmos of the fact that she had moved in with Mr B because she was extremely fearful of his reaction.[25]
[25] See applicant’s affidavit filed on 25 November 2020 at [173].
The most striking example of the lack of Ms H having no special degree of insight into the personal affairs of her daughter concerns when Ms Kendell, at the time aged in her mid-thirties, decided to move out of her mother’s Suburb U home. This was sometime in 2010/11 and after Ms H had been diagnosed with a medical condition. Ms H deposes as follows:
About ten years ago (about 2010) [Ms Kendell] told me that she was going to live with a girlfriend. I never met [Ms Kendell’s] girlfriend, but recall that [Ms Kendell] told me her name was [Ms W].[26]
In cross-examination, she indicated a belief that Ms Kendell stopped living with Ms W sometime in 2017, when she moved interstate.
[26] See affidavit of Ms H filed 1 December 2020 at [10] – [11].
The reason why Ms H did not meet Ms W is that, on balance, it seems more likely than not that she was a fabrication of Ms Kendell, designed to mollify her mother’s feelings and enable her to pursue her own romantic affairs. In her affidavit, the applicant herself indicates that she actually moved in with a person, Mr B, whom she describes as an old friend. Again, as will be detailed shortly, this is a significant understatement of the truth.
In this context, Ms Kendell has deposed that Mr Vilmos was consumed with jealously regarding her and had her under his constant surveillance.[27] This does not seem congruent with the evidence of either party that they had been involved with other sexual partners after around 2004 - 2006. In addition, it would seem to me that if Mr Vilmos had had Ms Kendell under his surveillance, he would have become aware of Mr B much sooner than he did do and would have also been more aware of the nature of her withdrawals from the business.
[27] See affidavit of the applicant filed 26 November 2020 at [174].
It confirms my overall impression of Ms Kendell as having tailored her evidence to support her case. In so doing, she was prepared to deceive not only Mr Vilmos but also her own mother. Necessarily, the degree of deception to which Ms H was subject by the applicant must corrode its overall utility for the jurisdictional task conferred on the court in the current matter.
In her affidavit evidence, Ms H deposes that in her assessment the parties adored one another, with Mr Vilmos referring to Ms Kendell as babe, whilst she called him Mr Vilmos. She also asserts that the two did not publically display their affection for one another. However, in this context, she assert that Mr Vilmos was very solicitous about Ms Kendell, if she was ill. I do not think this evidence takes issues much further.
I have no doubt that the parties were fond of one another, particularly in the early years of their relationship with one another. I also accept that Mr Vilmos, in the context of his involvement with Ms Kendell developed an affection for Ms H and went to some pains to provide assistance to her, which Ms H, in term, reciprocated.
However, from Mr Vilmos’ perspective, although he helped Ms H from time to time, his gifts were proportionate with his affection for Ms H, whom he had met in the early stages of his romantic involvement with Ms Kendell and whom he liked and for whom he felt some solicitude. I suspect he also enjoyed making what he considered were magnanimous gestures.
As I indicated, Mr Vilmos is a person who rewards loyalty to him with generosity. The issue arising is whether the payment of Ms H’s mortgage, over the period of time in which it was done and the amounts of money involved, is consistent with such generosity and congruent with the affection and responsibility Mr Vilmos felt for his partner’s mother, or whether the circumstantial evidence sheds a more sinister light on the payments and is more consistent with Mr Vilmos’ assertion that Ms Kendell misappropriated the money.
Ms Kendell does not disagree with Ms H that she, in effect, lived with her mother in the sense that she slept at her mother’s home and it was the address she used for her administrative formalities, such as her driver’s licence and taxation returns. Mr Richards, counsel for Mr Vilmos places emphasis on what he would characterise as a significant concession, made by Ms Kendell, that she lived with her mother and she and Mr Vilmos never lived together exclusively [in the] one home.[28]
[28] See transcript at page 15.
However, Ms Kendell asserts that she lived at night time with Mr Vilmos, leaving his house, at one or two in the morning, when she went home to her mother, where she would wake up, get dressed and then return the next morning, either to do cleaning or work on the business side of things. In this context, she asserts that she was bothered by Mr Vilmos’ heavy snoring and in order to be able to sleep she left the Suburb G property. I accept that a person can live at two places simultaneously. However, this is not consistent with other aspects of her evidence regarding her relationships with Mr V and more significantly Mr B, which undoubted she kept secret from certainly Mr Vilmos and her mother.
A central aspect of Ms Kendell’s case is that Mr Vilmos took charge of her finances and effectively supported her, paying for her phone, health insurance, vet bills, car expenses and purchasing her clothes and jewellery. Ms Kendell is not in a position to provide documentary evidence to support these assertions and, after so many years, it would be unreasonable to expect her to do so.
Whilst under cross-examination, Ms Kendell conceded that she had incurred a debt to Centrelink in an amount of around $12,000.00, which related to a period in the mid 1990’s, when she had claim unemployed benefits when she was not entitled to them. In Mr Richard’s submission this concession cannot be consistent with Ms Kendell’s assertion that she was in a de facto relationship with Mr Vilmos, as she would have declared the existence of this relationship to Centrelink and it is patent that she did not do so.
In my view, there is some force to Mr Richard’s contention. It supports his assertion that neither parties, in the early stages of their relationship, assumed that there was a de facto relationship between them. Rather each maintained a degree of financial independence from the other. It was in this period that Mr Vilmos commenced his building business from modest origins.

It seems to me that he regarded the business as very much his baby, from its instigation. It was a practical business, based on the skills he had learnt from his father. In its early stages, he did not need any input from Ms Kendell or indeed from anyone else, as he knew what he was doing, contracting small jobs and utilising the equipment, which he had inherited from his father.
In these circumstances, it seems to me to be against the weight of the evidence that Mr Vilmos and Ms Kendell had any shared intention to start a business together. In addition, it also seems to me to be more probable than not the Mr Vilmos always regarded the business as his, given from his perspective, he had grown it, using his expertise and his hard work. As such, as his evidence indicated, he was somewhat dismissive of what Ms Kendell did in the business, whilst conceding he could not himself do what she did.
However, one thing is abundantly clear in this case, in my view, namely the nature of the parties’ relationship changed significantly over time. In the early phases of the relationship – in the late 1990’s and the first years of the new millennium, the parties were enamoured with one another and Mr Vilmos’ business was growing. As such, it does not seem to me to be improbable that Mr Vilmos was very generous to Ms Kendell, in the early stages of their relationship.
In this context, Ms Kendell denies that she was employed by Mr Vilmos rather she was engaged in business with him, which the two owned together. The commencement date for this was sometime in 2000. The only explanation for Mr Vilmos taking on such broad ranging financial responsibility for her and allowing her full rein of his business being that the two were a couple.
Mr Vilmos does not resist the suggestion that he was financially generous, so far as Ms Kendell was concerned. Mr Vilmos does not seem to be the sort of person who watches every penny. To the contrary, he seems to be quite cavalier in regards to money. One of the issues, which the court must resolve is whether in the mid to late 1990’s the parties’ relationship, which in my assessment obviously started out as one of boyfriend/girlfriend marked by frequent socialisation; engagement in fun activities; and regular sex; turned to something more committed and assumed the status of coupledom.
In this context, Ms Kendell asserts that the parties became engaged to be married in 1999, which was recognised by him gifting her a diamond ring, which was valued, by a jeweller, at $19,225.00, that year. Ms Kendell assets that Mr Vilmos purchased the ring for $8,000.00. Mr Vilmos accepts that he purchased a ring for Ms Kendell but cannot remember its value and refutes that it could be anyway indicative of any plan for the two to marry. From his perspective the ring was a gift to Ms Kendell.
In this context, he points to his Greek background, which would be antithetical to a betrothed couple having anything other than a flamboyant and public celebration of the event, which did not occur. In addition, he asserts that out of respect for her, he would have asked Ms H Senior’s approval for the engagement, again which did not occur.
Ms H’s evidence about the existence of an engagement is, in my view, equivocal. The information about the engagement came only from her daughter, at a date which she can no longer recall. She recollects seeing a large ring, on her daughter’s finger, in mid 1999. In general terms, Ms H’s evidence is supportive of a close friendship existing between the parties but does not, in my view, take it further.
Much of Ms H’s evidence about her perception of the nature of her daughter’s relationship with Mr Vilmos is highly subjective in nature and speculative in the sense that it provides little concrete input of what Mr Vilmos himself did, in word and deed, to publically display his commitment to Ms Kendell. In this context, on the one hand, Ms H describes Mr Vilmos as a person of few words, but she was able to his love and admiration for Ms Kendell in his eyes.
This may be so, from her perspective. I appreciate that intimate relationships are private and the individuals concerned in them may, for a variety of reasons, elect not to broadcast their feelings to the world at large. At the same time, the bonds of human engagement are capable of being perceived by those who are exposed to them. As such, I do not dismiss Ms H’s view that the parties were very much in love, in the first years of their involvement with one another.
However, in a highly polarised case, such as the present one, for obvious reasons, I must be cautious about the perceptions of a person, such as Ms H, who is likely to be partisan in the case. In addition, as an incident of these proceedings, she is required to report her perceptions at many years remove, particularly in the context of characterising the nature of the relationship in mid-2010. At this time, it seems to me she was seeing less and less of Mr Vilmos and this continued, as the years went by. Necessarily, this must have some implications for the reliability of her recall. Accordingly, whilst I accept that Ms H is an honest witness, I must approach her evidence with caution.
The effect of Ms Kendell’s evidence is that the death of Mr Vilmos’ father derailed plans for an engagement party and the wedding. She has provided evidence that she approached a function centre, in mid 1999, regarding the holding of a wedding reception, following this alleged engagement.
However, clearly, as Ms Kendell deposes, for whatever reason, no engagement party took place and whatever plan had existed between the two to marry and more importantly what was the respective level of commitment to it by each party to marry is far from clear other than it is apparent that the marriage did not eventuate. No engagement was publically announced and there was no public indication of the deferral of marriage because of the death of Mr Vilmos Senior.
Events up to 2010
After 1999, Mr Vilmos concedes that the relationship between the parties continued to be a close and intimate one. It is his position that after 2000, Ms Kendell became more and more involved in illicit drug taking, although he does not stipulate what type of drug was involved. In this context, Mr Vilmos deposed as follows:
I told the applicant to pull herself together, to stop taking drugs and to stop running around with other men. I said that if she did those things that I would give our relationship a ‘go’.[29]
[29] See affidavit of the respondent filed 26 November 2022 at [25].
The implication of this concession being that Mr Vilmos accepts that there was at least a relationship between the parties in 2000, which had persisted since they had first met. However, it is his position that there was no drawing together or consolidation of any form of romantic relationship between the two after 2000, although they continued to engage with one another to a significant degree.
In 2005, Mr Vilmos authorised the purchase of a Motor Vehicle 1, which was registered in Ms Kendell’s name. He characterises the purchase as a gesture of goodwill, on his part, to Ms Kendell and a gift, which might lead to some form of reconciliation between the two. It is his case that there was no such rapprochement reached and thereafter the parties were romantically and sexually distinct, with each pursuing other partners.
More significantly, it is his case that Ms Kendell did not make the commitment to him, which he regarded as an essential prerequisite of their relationship moving to a more significant level of intimacy or coupledom. Rather, although the two remained friends and had some form of business relationship together, they increasingly grew apart in respect of the degree of intimacy between them and no longer had any significant degree of sharing of their lives together, in the sense envisioned by the applicable legislation.
Ms Kendell is not in a position to deny that she became significantly involved in illicit drug taking. This is her explanation for engaging in the relationship with Mr V. However, she has provided almost no detail of the periods during which her drug taking occurred; the extent of her use; the drug she was using; and how she funded its use.
Rather, her evidence left me with the inchoate impression that over some unspecified period her life was not wholly under her control. It is now Mr Vilmos’ view that Ms Kendell used her access to his business to fund her drug use. Whether this is so is impossible for me to ascertain. However, it seems to me to be more likely than not that Ms Kendell did not meet the various conditions stipulated by Mr Vilmos as being essential prerequisites of him giving the relationship a further go.
It seems to me to be more likely than not the around 2006/2007 the romantic aspects of the parties’ relationship, already significantly on the wane, became totally extinct in this period. The two remained friends. In addition, in my assessment, it was useful for each of them, perhaps for reasons which were not fully disclosed at the time, to have the other around. It is also not beyond the bounds of probability that Mr Vilmos felt some sort of responsibility for Ms Kendell.
Mr Vilmos characterises Ms Kendell as having a forceful personality. This coincides with my own impressions of her. She is no shrinking violet. As Mr Vilmos deposed, Ms Kendell is not the sort of person who feels beholden to anyone. In his words, she does as she pleases and says what she thinks. She is feisty. As such, in my impression, it would not have been easy for Mr Vilmos to terminate the financial aspects of the relationship between the parties, after 2006. In addition, as I will detail further, it is my finding that Ms Kendell had her secret motivations for wanting to remain engaged in Mr Vilmos’ day to day arrangements.
In these circumstances, Ms Kendell continued to come and come from the Suburb G property, as she had done in the past and provide assistance in the business, as she had done from 2000 onwards. This was an arrangement which suited both of them. I mean Ms Kendell no disrespect, but her arrangement with Mr Vilmos, particularly whilst her life was not under the best possible degree of control, was preferable to being on either social security or in the more conventional workforce.
From Mr Vilmos’ point of view, given the somewhat unorthodox nature of his business affairs and temperament, it was expedient to metaphorically, if not in formal terms, to keep Ms Kendell on his payroll, not least because he regarded her as a friend and she was on his wave length in the manner in which she approached life. In these circumstances, he did not have the heart or the balls to tell her to leave. As will be discussed in due course, it seems to me that, in these extremely unusual circumstances the parties were each exploiting the other, but in different ways.
In respect of the period prior, between 2000 and 2007, in my view, there is a marked lack of collateral evidence, in Ms Kendell’s case, to support her assertion that she and Mr Vilmos had been and continued to be a couple, in the sense envisaged by the Act. However, it is clear that they engaged with one another in a variety of contexts.
There seems no controversy that during this period (and indeed afterwards) Ms Kendell had the keys to the Suburb G property and could come and go from it as she saw fit. She did cleaning at the property and some items of her personal property remained there and, on her case, still do. In addition, in 2007, Ms H was diagnosed with serious heart problems and the applicant asserted she wanted to provide more care for her mother. However, this concern did not stop her becoming involved with Mr V.
Apart from her assertion that she and Mr Vilmos were a couple, the main evidence to support Ms Kendell’s case, in this period, comes in the form of photographs of she and Mr Vilmos in a variety of social settings. These include weddings; engagement parties; at a combined birthday party for Mr Vilmos and Ms H in 2004; at Ms Kendell’s birthday in 2002; at a holiday shack; and various Christmas celebrations, including in 2009.
The photographs show Ms Kendell and Mr Vilmos with an easy familiarity, often with their arms around each other or with Ms Kendell sitting in Mr Vilmos’ lap. That the two attended social gatherings together, on each side of their respective families, cannot be doubted and the existence of some form of affectionate relationship between the two is readily apparent. I am required to characterise this relationship.
Clearly, the two remained friends. As such, it is to be expected that they would pose easily together for the sake of the camera lens. In my view, what is missing, in respect of this period, is evidence from other individuals, who attended these events, who are prepared to indicate, for public purposes, that to their families and society as a whole, the two held themselves out as a couple. In this context, I consider that I must be careful not to confuse the social familiarity between the two for a state of coupledom.
What both agree upon is that, in this period, the level of sexual relations between the two began to lessen and by 2006, sex between them had ceased. Ms Kendell puts the cessation of sexual relations between the two as at 2004, prior to which the two had sex about once a month;[30] whilst Mr Vilmos put the last time the parties had sex together as being 2006, when they went on holiday together to Country X. It is this latter date, which is important from Mr Vilmos’ perspective as, on his case, it marks the end of any possible ambiguity as to whether he and Ms Kendell did or did not have a relationship as a couple.
[30] See applicant’s affidavit of evidence filed 26 November 2020 at [108].
Ms Kendell relies on a public announcement, which was placed in the death notices of the Z newspaper in 2010, in honour of Mr Vilmos’ recently deceased brother-in-law. The notice is signed Ms Kendell and Mr Vilmos. In my view, the notice does not, of itself, add anything to the case, in the absence of any collateral interpretation from a member of the family concerned. It is a mark of respect rather than an obvious state of coupledom.
Ms H
Ms H deposes that she did not want to pry into the nature of the parties’ relationship with one another. She has deposed that she witnessed the two have arguments about business matters but does not relate this to a particular period of time. The arguments were said to centre on issues of the liquidity of the business and its ability to pay creditors. Ms H is not able to give any extensive particulars of her understanding of what her daughter did in the business other than she witnessed Ms Kendell giving Mr Vilmos feedback on their business.
Ms H is unable to be specific as to the last time she saw Mr Vilmos, only being able to say it was sometime in the period between 2015 and 2018. She asserts she visited Mr Vilmos’s home about eight times in total. Mr Vilmos gave her a Football season ticket, for her Christmas present, each year until 2014. She went to the movies with the parties on three occasions between 2000 and 2002.
Ms H asserts that Mr Vilmos mowed her lawn between 2007 and 2009; fixed the floor in her granny flat in 1999; and fixed her garage roof in 2001. As previously indicated, Mr Vilmos spontaneously gave her a gift of $400.00 to assist her go on holiday. In addition, he would bring her a takeaway dinner from time to time. I accept that Mr Vilmos was solicitous, so far as Ms H’s welfare was concerned, particularly in the early stages of the parties’ relationship with one another.
As indicated above, my assessment of Ms H is that she is neither a worldly nor wealthy person. Her evidence is that she separated from her husband in 1999 and he left her in her home subject to a mortgage, which she was concerned she would struggle to service. I accepted that Ms H is likely to have raised her apprehensions with both Mr Vilmos and her daughter, soon after her separation, about the mortgage and her accommodation insecurity.
In her affidavit evidence, Ms H asserts that Mr Vilmos told her that he wanted to help and assured her that she would not lose her home. In this context, she asserts that the parties indicated that they (Mr Vilmos and Ms Kendell) would pay the mortgage. There is no doubt that the mortgage was paid.
What is noteworthy, I think, is that Ms H does not provide any specific details of what Mr Vilmos would do and over what period of time. In cross-examination, Ms H indicated that she did not deal directly with Mr Vilmos in respect of the mortgage. Rather the monies came into her mortgage account, which she noted from her statement, came from her daughter’s account.
In this context, Mr Vilmos acknowledges that he might have specified to Ms Kendell that he would help Ms H but not to the extent that was done. In this context, he accepts he gave Ms H a personal cheque, at a time, which he estimates to be like fifteen years ago.[31] This rings true to me.
[31] See Transcript at page 120.
It is the clear implication of his affidavit evidence that he did not authorise or indeed know of the full extent of the payments made to Ms H until after he and his sister ejected Ms Kendell from the business and the premises at both Suburb G and Suburb E and conducted an audit of its books.
In this context, Mr Vilmos has deposed that it was only at this stage he discovered what he characterises as Ms Kendell’s misappropriation of the business’ funds, which she has allocated to her own personal expenditure, including the payment of her own rent; her mother’s mortgage instalments; and numerous other expenses. He calculates the amount in question to be around $1.4m.[32]
[32] See respondent’s affidavit of evidence filed 26 November 2020 at [96].
When the issue was put to Ms Kendell in cross-examination, in my assessment, she gave a somewhat convoluted and disingenuous answer, as to why she utilised funds belonging the building business to pay her mother’s mortgage. She said as follows:
I was transferring from my profit of the business or my wages that I didn’t really get to pay for my mother’s mortgage that he and my mother discussed that was right thing to do.[33]
[33] See Transcript at page 40.
In my view, this is both a disingenuous and self-serving answer. It seems to me to be improbable in the extreme, generous as Mr Vilmos may be or given that he was fond of and sympathetic to the situation in which Ms H found herself in 2000 that he would have clearly authorised the on-going payment of a regular and significant sum of money to Ms H, which was completely undocumented. In my view, Ms Kendell’s assertion that this payment had been comprehensively discussed between Ms H and Mr Vilmos, as the right thing to do is either a self-serving rationalisation or a complete fabrication.
In my view, such an action is not congruent with his other reported incidents of generosity to Ms H or the nature of the involvement between the two, which as with the relationship between the parties, in my view, was one which was declining in terms of its emotional quotient from 2004 – 2006 onwards.
More likely is the fact that Mr Vilmos said he would help, which he did on a limited and short term basis. Thereafter, it seems to me to be more probable than not that Ms Kendell took it upon herself to continue the payments and she did so without the explicit authorisation of Mr Vilmos, knowing full well that he would be unlikely to give his authorisation to it. In my view, the more logical explanation for the payments to Ms H is that Ms Kendell orchestrated them clandestinely and dishonestly and went to some lengths to conceal them from Mr Vilmos.
As indicated above, 1 July 2010 is the operative date, so far as the commencement of the applicable legislation, in the state of South Australia. The evidence is clear that, apart from some interstate holidays and the holiday to Country X in 2006, whatever relationship existed between the parties, both before and after July 2010, took place in South Australia.

More significantly, Ms AC does not allude to the fact that Ms Kendell was involved in two extremely significant relationships, with Mr V and Mr B, during the currency of her friendship with Ms Kendell. Accordingly, it is evident to me that Ms AC did not have a complete understanding of the complexities implicit in Ms Kendell’s life during the last ten years or so. Certainly, she does not depose that she was a special confidant of Ms Kendell. Rather, her view that Ms Kendell and Mr Vilmos appeared to her to be a couple is as result of conclusions she drew from her observation of what Ms Kendell did in Mr Vilmos’ house, largely when Mr Vilmos was not there. Her evidence struck me as largely conjectural in nature.
In this context, there is no controversy that Ms Kendell had the free run of Mr Vilmos’ house. In particular, I do not think the fact that she kept cosmetics in his bathroom and food in his refrigerator, although consistent with the two using the same premises concurrently, does not inexorably lead to any conclusion that they were a couple.
Summary of evidence and findings
In my view, at this point, it is useful to return to the factors delineated in section 4AA(2), which arise under the rubric of working out if persons have a relationship as a couple. In performing this exercise, I recognise that none of these factors is determinative. Rather they are to be regarded as indicative of the existence of de facto relationship.
However, the essential criterion which must be satisfied, in order to establish that a de facto relationship exists, remains that set out in section 4AA(1), namely that the parties concerned are a couple living together on a genuine domestic basis. It is the composite picture which is of paramount importance.
The duration of the relationship
The parties were involved with one another for a significant period time between 1994 and 2018. During this period, the nature of their relationship changed significantly. I accept that such changes are an incident of life. Depending on the circumstances, two individuals may remain a couple, for the purposes of the relevant legislation, although they have come to detest one another.
At the same time, the duration of a relationship alone cannot be the defining factor as to whether a de facto relationship exists at relevant times. It is the characteristic of the relationship and the factors which give it definition, which are important.
I accept the submissions of counsel for Mr Vilmos, Mr Richards, that the nature of the parties’ relationship changed over time and, as such, it is to be characterised as having a number of distinct phases. As previously indicated, this is significant given the date at which the applicable legislation came into force in South Australia.
Firstly, the period when the parties first met until the cessation of their sexual relationship in 2004/2006 was one of intense emotional involvement. The second phase from 2007 onwards, when Ms Kendell became emotionally involved with Mr V, and then Mr B, was marked by the parties having distinct relationships with other individuals, which were – certainly on Ms Kendell’s part – kept hidden from the other.
The third phase was marked by the relationship between the parties being wholly financial in nature. In my view, this was analogous to an informal and diffuse employment arrangement. In its latter stages, Mr Vilmos began to be suspicious that Ms Kendell was exploiting him, rather than vice versa. In my view, this portion of the relationship is marked by Ms Kendell concealing significant aspects of what she was doing and her motivation for doing so from Mr Vilmos.
The nature and extent of common residence
Common is an ordinary English word. In the sense it is used in the relevant section of the Act, it means shared by. I accept that Mr Vilmos and Ms Kendell undoubtedly shared the Suburb G property. Ms Kendell, when she was there, which was often, treated it as her own. She swam in the pool; used the fridge to store her preferred food; and decorated it to her taste, with the ornaments she found appealing.
Given that she was there so often, she kept her cosmetics and hair care products there. Clearly, she used the bathroom. More significantly, given the Suburb G property was also her place of work, she used the home office and its computer frequently. Indeed, it is clear that she used her work computer to message both Mr V and Mr B during the second phase of the parties’ engagement with one another.
The relevant legislation encourages me to consider the nature and extent of how the parties came to share the relevant property. Ms Kendell had her own home, where she mostly slept from 2007/8 onwards, she kept the nature and basis of this residence secret from both Mr Vilmos and her mother. It is clear to me that Ms Kendell’s various residences, which she shared particularly with Mr B were a significant source of emotional sustenance for her, which she could not obtain at Suburb G from Mr Vilmos.
Conversely, Mr Vilmos did not seek that sort of emotional support from Ms Kendell, through sharing his home with her. Rather, he allowed her access to what he regarded as his house because it suited him and given his disposition and the fact that he was not at the house all that often, being preoccupied with the practicalities of running his business, he was not greatly concerned at what Ms Kendell did at the house.
In my finding, particularly around 2010, he saw his relationship with Ms Kendell as being purely practical and utilitarian. She had skills he needed – computer and internet primarily; but also basic administration. More significantly, she was able to attend to aspects of his private life – booking holidays; cleaning his house; and being generally at his beck and call; without any blow back. Essentially, Ms Kendell knew and pandered to his particular peccadillos.
As I indicated earlier, it is my view that each of the parties was intent on exploiting the other. Mr Vilmos because he had someone at his beck and call, who made him feel magnanimous and generous and whom he did not have the courage to cut loose, particularly whilst she discharged a function in his household and business, which it would have been troublesome to replace.
For Ms Kendell, she saw Mr Vilmos as a financial resource she could exploit to her benefit. In my view, this is the only explanation for the email of 1 December 2011, which she sent to Mr B, in which she described herself as the maid. In my assessment, the email represents an unvarnished exposition of what Ms Kendell felt about her situation then – it was unsatisfying and demeaning but would ultimately she would be sufficiently rewarded, at which stage she would be able to devote her efforts to Mr B.
Accordingly, in my view, although the parties shared the Suburb G residence to a large degree, it was not their joint residence. After 2010, it was Ms Kendell’s place of work, which she went to some lengths to make as amenable to her tastes and needs as possible, with Mr Vilmos’ acquiescence. However, in so doing, Ms Kendell had a significant ulterior agenda. For his part, Mr Vilmos did not really care about what Ms Kendell did in the house, as long as it was reasonably clean.
Sexual Relations
The parties met when they were aged in their mid-twenties, some twenty eight years ago. At this stage, their relationship was acutely sexual. Both agree that sex between them ceased well before 2010. However, in my view, the evidence clearly indicates that neither ceased to be sexually active after this date. Rather, they chose to have sexual relations with others.
The absence of sex cannot be definitive of the lack of a de facto relationship. However, sexual relations are a form of glue so far as many relationships are concerned. Age can have relevance. Again, it is a matter of context. In my view, this is not a case in which the parties jointly went through a process of mutual sexual atrophy, whilst still being engaged in a loving and supportive relationship. Rather, they each looked elsewhere for the sexual gratification and emotional support each required.
The degree of financial dependence or independence, and any arrangement for financial support between the parties
Clearly this is one of the more significant and contentious areas of controversy between the parties. Ms Kendell would see the financial relationship between the two as being symbiotic in nature, whilst Mr Vilmos would express it as being parasitic.
In my view, it was somewhere between the two. Undoubtedly the two were closely entwined with one another financially in the sense Ms Kendell was wholly financially dependent upon Mr Vilmos, albeit her dependence was based on her provided a wide range of services to him.
However, in my view, in the overall setting of section 4AA, the court must look to the implications of whatever financial relationship exists between the relevant parties, to determine whether it supports a finding that they are a couple living together on a genuine domestic basis.
In this context, in my view, the most significant aspect of the parties’ financial inter-dependence with one another is the fact that I find Ms Kendell was secretly misappropriating funds from the building business. Ms Kendell rationalises her behaviour on the basis that she was only taking what was hers and she had either the express or tacit approval to advance funds to pay Ms H’s mortgage.
I do not accept that the evidence supports either contention. Evidence, in the form of the Bank N accounts, indicates that Ms Kendell clandestinely took significant sums of money from Mr Vilmos’ account and by whiting out the relevant paper statements, sought to conceal the withdrawals from him. I also accept that she was in a position to access funds because Mr Vilmos was, to all intents and purposes, computer illiterate and innumerate.
It seems to me to inherently improbable, no matter the degree of Mr Vilmos’ affection for Ms H and his desire to help her that he would have paid off her mortgage over very many years. The only logical conclusion I can reach is that Ms Kendell was intent on misappropriating funds from Mr Vilmos, which she went to some lengths to conceal, whilst she pursued her own romantic relationship with Mr B.
In my view, this type of conduct, which I view as cynically exploitative, is antagonistic to any state of coupledom. Certainly, it cannot be said to add to the bona fides of any contested de facto relationship. Domesticity, is most usually based on some element of mutuality and trust. Financial deception and manipulation, in my view, are not consistent with such domesticity. It does not exemplify a sharing of a common life.
The ownership, use and acquisition of property
Again, issues which fall under this consideration, are at the heart of the controversy between the parties in the current matter. The controversies centre on the purchase of the Motor Vehicle 2, for which Ms Kendell received the insurance payout and the circumstances in which she became a director and shareholder in Company C.
What is not in contention is that the motivation for the incorporation, in 2005, was not related to any form of relationship between the parties. Rather, Mr Vilmos wanted a mechanism which would reduce his personal exposure to demerit points in respect of his driving infractions. He has also provided evidence, which I accept, that he left Ms Kendell to deal with Mr L with issues relating to formalities regarding the business.
It was only in 2017 that Ms Kendell became a director of the company, after making inquiries of Mr L as to how this could be done. It is the thrust of Mr Richards’ submission that she did so in order to be able to maintain her control of Mr Vilmos’ financial affairs so that her multiple incidents of fiscal malfeasance would not be detected. Her attempts in this regard coinciding with the increasing involvement of Ms D in the business’ administration.
As indicated above, the parties have diametrically opposing view as each of these issues, which cannot be logically reconciled. On the one hand, Mr Vilmos asserts that he did not agree to Ms Kendell becoming legally recognised as a proprietor of the business and he thought the Motor Vehicle 2 was purchased by the company. Essentially, he asserts Ms Kendell fraudulently acquired her legal interests in both the car and his company.
On the other hand, Ms Kendell asserts that she legitimately acquired both the car and her shareholding in Company C. In terms of both issues, but particularly that concerning how Ms Kendell came to be involved as a director and shareholder of the company and indeed in respect of the issue of distributions made to her through the related discretionary trust, the evidence of Mr Vilmos’ accountant, Mr L may well be illuminating.
On the one hand, Mr L might confirm Ms Kendell’s evidence that he acted on the instructions of Mr Vilmos to establish the trust on the basis that this was a mechanism for distributing the products of their joint efforts in the business and in recognition of their status as a committed couple and further he had Mr Vilmos’ clear authority to take the necessary steps to make Ms Kendell a director.
On the other hand, Mr L might have confirmed that he acted only on the direction of Ms Kendell and on the assumption that she was authorised to do what Mr Vilmos wanted, essentially split income artificially so he could minimise his tax exposure and he (Mr L) never bothered to check the basis of his assumption. However, neither party has called Mr L.
I have already alluded to the so-called rule in Jones v Dunkel. The principle is well known and has fairly recently been restated by the High Court in RPS v R[51] 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.…
[51] See RPS v R (2000) 199 CLR 620 at [26].
However, the rule is not absolute. In Railpro Service Pty Ltd v Flavel[52] Perry J said as follows of the principle in Jones v Dunkel:
….while the principle may make certain evidence or the inferences which may be drawn from the evidence more probable, it does not permit any further inferences that the untendered evidence would have been damaging the party who might have been expected to tender the evidence; nor can the failure to lead the evidence fill gaps in the evidence, or convert conjecture and suspicion into inference.
[52] Railpro Service Pty Ltd v Flavel [2015] FCA 504 at [95].
Counsel for Mr Vilmos has provided some explanation as to why Mr L has not been called, which has not been challenged by those representing Ms Kendell. However, the court is not wholly without evidence from Mr L, as the documents complied by him in respect of the company and the trust, have produced pursuant to a subpoena issued by Mr Vilmos. Accordingly, Mr Vilmos has made some attempts to secure some evidence from Mr L.
Mr Richards has provided an analysis of the income distributions and director’s fees paid from the Vilmos Family Trust between 2006 and 2017. It is his submission that the amounts drawn from the Trust escalate dramatically in 2010 and 2011, after she began her relationship with Mr B.
In addition, in order to support his submission that the drawings made by Ms Kendell in this time frame cannot logically be characterised as being legitimate, Mr Richards points to the fact that Ms Kendell drew sums in excess of the profits generated by the business, which is not something Mr Vilmos is likely to have authorised. I agree with Mr Richards’ contention that the extent of the withdrawals, which I accept were not consistent with the parties being in joint control of the level of Ms Kendell’s withdrawals.
Ms Kendell did not attempt to lead evidence to explain her withdrawals. She has neither called Mr L nor attempted to explain herself the various drawings attributed to her other than by providing the assertion that the sums are hers because she has an interest in the business and she did not want to be beholden to Mr Vilmos for money. In all these circumstances, I think the inference is open to the court that Ms Kendell realised that Mr L’s evidence was not likely to assist her.
In this context, Mr Roberts is critical that Mr Vilmos did not call his sister Ms D Vilmos to give evidence regarding her examination of the relevant bank records, which led to Mr Richards making the submission that her calculation indicates that a sum of approaching $1.2m has been expropriated.
It is not my role to conduct my own audit in this regard. In my view, it cannot be said that Ms Kendell was not given an opportunity to refute the calculations. As Mr Richards points out, the various documents, on which the calculations were based, have been available to each of the parties.
I accept Mr Vilmos’ evidence that he is functionally innumerate and for all practical purposes computers are beyond him. My impression of Mr Vilmos is that he could have almost certainly have acquired the skill necessary but he elected not to do so because of his trust in Ms Kendell, as an old friend, who needed a job.
In all the circumstances, it seems more likely to me than not that Ms Kendell did manipulate documents, without Mr Vilmos’ knowledge to secure her appointment as a director of Company C and to obtain the Motor Vehicle 2. In addition, she withdrew significant sums from the business for her own use.
In my assessment such dishonesty and manipulation is not consistent with a state of coupledom existing between Mr Vilmos and Ms Kendell. I reach this conclusion because Ms Kendell’s actions must be regarded as entirely unilateral in nature. As such, her financial conduct in the business was not compatible with any commitment to the parties sharing this significant aspect of their lives. Essentially, Ms Kendell was intent on benefiting only herself, at the expense of Mr Vilmos.
The degree of commitment to a shared life
In my view, the evidence available to me supports the conclusion that the parties were significantly committed to one another in the period between meeting and 2006. However, neither was willing to commit to formalise their relationship in any significant way. There was no engagement. In addition, it seems to me to be unlikely that Mr Vilmos had any intention that Company C was to be regarded as a joint enterprise.
Rather, from the beginning it was his view that Ms Kendell worked for him. This was an amorphous arrangement, in which Mr Vilmos was somewhat dismissive of Ms Kendell’s contributions. Clearly throughout the entire period of their engagement in the business together, they remained on cordial terms. It is also likely that Mr Vilmos felt some sort of obligation to Ms Kendell and it suited him to have her as part of his informal entourage.
In addition, Ms Kendell concedes that around 2006 her life was in a state of disarray as a result of her illicit drug use. In this setting, she made a significant emotional commitment to Mr V. This may well have been a drug-fuelled relationship but it did not include Mr Vilmos and she kept it secret from him. In my view, this conduct is not congruent with any degree of commitment to a shared life. Rather, on any view, she kept a significant part of her life secret from Mr Vilmos.
The same considerations apply, more starkly, to her relationship with Mr B, which lasted for approximately seven years, during which time she and Mr B lived as a couple, sharing the rent and other expenses, in leased premises. In addition, it seems clear that Ms Kendell derived a significant level of emotional sustenance from Mr B, which she could not derive from Mr Vilmos.

It is Mr Vilmos’ evidence that he did not approve of Ms Kendell’s drug use and, in effect gave her an ultimatum in 2006 that she needed to mend her ways, otherwise the two had no future together as any sort of couple, in an intimate sense. This ultimatum coincided with the cessation of their sexual relationship. It is also clear that Ms Kendell did not act on the ultimatum. Rather, she elected to start a clandestine relationship with Mr B, which she kept secret both from her mother and apparent close friend Ms AC.
For obvious reasons, married individuals are often naturally inclined to keep the existence of an affair secret from a partner. However, in my view, the extent of Ms Kendell’s relationship with Mr B is clearly inimical with her having a committed relationship with Mr Vilmos at the same time, particularly given the extent to which she was deceiving him at the time. As a consequence of going to the home, each night, which she occupied with Mr B, Ms Kendell, in my view, was axiomatically not sharing a significant portion of her life with Mr Vilmos.
Both parties accept that Mr Vilmos travelled overseas regularly for leisure. Indeed, Ms Kendell was charged with making the necessary arrangements for him. He travelled alone. It seems to me to be more likely than not that, if he had felt committed to Ms Kendell, the two would have holidayed overseas together, certainly from 2010 onwards. The evidence indicates that their last overseas holiday was in 2006, when they went to Country X. This was also the last time, on Mr Vilmos’ evidence that the two had sex together.
As indicated above, I accept Mr Richards’ submission made in his written submissions that Ms Kendell’s drawings against the profits and losses of Mr Vilmos’ business demonstrates an ongoing profligate breach of trust by the applicant in the conduct of her administration of the business and for which she provides no evidence by way of explanation.[53]
[53] See Respondent’s written submissions filed 19 May 2022 at page 10.
Registration under a prescribed law
The parties’ relationship has never been formally registered or ratified in any way. Essentially, the parties involved have never taken the opportunity to opt into the applicable legislative scheme.
The care and support of children
Clearly, this is not a relevant consideration.
The reputation and public aspect of the relationship
Ms Kendell has characterised the parties’ relationship as being idiosyncratic and unconventional in nature but still one which must be regarded as constituting a de facto relationship. In these circumstances, it was not necessary for the parties to do all manner of things publically together as, from their perspective, there was no need to publically express their commitment for one another, given their mutual and necessarily private acceptance of this state of affairs.
I accept that some de facto relationships must necessarily be concealed from the world at large. The parties concerned may be subject to the disapprobation of relatives or there may be some other compelling reason which dictates secrecy. There does not seem to be any such factor applicable to the current parties.
The evidence indicates that they publically engaged in all manner of activities with one another in the initial phase of their relationship but from about 2006 onwards I find that the public aspects of their life, which they shared dwindled dramatically, as the nature of their relationship changed, largely as each got involved with other people.
Essentially, apart from Ms Kendell coming to work each day and enjoying a cordial relationship based on their previous involvement with one another and Ms Kendell’s role as Mr Vilmos’ go to person charged with supplying his various needs from cigarettes and coffee to holidays and concert tickets, the parties led separate lives.
Significantly, the two witnesses Ms Kendell relied upon to support this aspect of her case gave, in my view, limited evidence regarding this issue. The evidence indicates the applicant deceived her mother about the nature of her relationship with Mr B. In addition, Ms AC’s evidence was limited in its implications. In my view, the fact that the parties were usually familiar and affectionate with another does not indisputable establish a state of coupledom.
Conclusions
Pursuant to section 90RD(2), the court has the authority to declare if and when a de facto relationship existed between relevant individuals and when such a relationship ended. In addition, as earlier indicated, this court’s authority to make any such declaration, pursuant to the provisions of the Family Law Act 1975, a piece of federal legislation depends upon the relevant relationship having taken place in a participating state.
South Australia is such a participating state, but only from 1 July 2010 onwards. In my finding this date is crucial. I am satisfied that there was no de facto relationship between the parties after 1 July 2010. It is probable that the parties were in a de facto relationship up until around 2006/07, when Ms Kendell became involved with Mr V and her illicit drug use, in Mr Vilmos’ perception increased, a circumstance, which he could not tolerate.
As the High Court pointed out in Fairbairn the end of a de facto relationship does not necessarily entail the cessation of all forms of involvement between the parties concerned. Clearly, in the present case, the parties engaged with one another frequently and with some significant cordiality and familiarity after 1 July 2010. However, I am satisfied that they were not a couple living together on a genuine domestic basis.
It is not necessary for Mr Vilmos to disprove that there was a de facto relationship between the parties. Rather, the onus is one Ms Kendell to prove the existence of the de facto relationship in question, after 2010. On her evidence, I do not believe that she has done so or satisfied the burden of proof upon her.
What Ms Kendell must establish was existing between her and Mr Vilmos was the continuation of an enduring emotional bond, which had begun between them prior to 1 July 2010 and continued afterwards. No one factor can be utilised to establish such a degree of connection. Rather it must be determined by reference to all the prevailing circumstances. As was said in Fairbairn the essential issue being were the parties sharing life as a couple? The criteria to be considered are not rigid and certainly not confined to the considerations contained in section 4AA(2).
The matters contained in section 4AA(2) are indicators only. They are not to be weighed against each other and given individual weightings or rankings in 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, at a time which attracts the court’s jurisdiction.
Essentially every case is unique and what defines the particular relationship in question requiring of idiosyncratic consideration. 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).
In this context, I agree with Ms Kendell’s characterisation of the parties’ relationship as being weird in comparison to the prevailing norms of society. Of itself, the degree of unconventionality in the nature of the parties’ relationship, cannot be a defining factor as to whether it was or was not a de facto relationship. What is important, is the degree of merger of their respective lives into some degree of shared domesticity.
For the reasons, I have outlined above, I am of the view that there was not such a sufficient merger in the lives of Mr Vilmos and Ms Kendell, as envisaged by section 4AA(1). Although they engaged frequently and cordially with one another, their lives had not remained merged and did not again merge after mid-2010. Rather, each of them kept important aspects of their lives distinct from the other.
In addition, for the reasons I have delineated, much of Ms Kendell’s involvement with Mr Vilmos was posited on deceit and exploitation. In my view, such behaviour cannot be consistent with a commitment to a sharing or merger of lives based on any concept of mutual support and the provision of emotional sustenance.
It is difficult to define the nature of the relationship between Mr Vilmos and Ms Kendell post about 2007. Clearly they were friends; employer and employee; and as such Ms Kendell had the free run of Mr Vilmos’ household as some sort of combination of housekeeper and goffer. However, it is not necessary for either Mr Vilmos or the court to give some sort of label to Ms Kendell to resolve the controversies arising between the parties.
Rather the jurisdiction conferred upon the court is to determine what the relationship was not. I am satisfied that it was not, at relevant times, a de facto relationship. 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 three hundred and twenty-three (323) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown.
Associate:
Dated: 4 November 2022

File number(s):	ADC 641 of 2019
Judgment of:	JUDGE BROWN
Date of judgment:	4 November 2022
Catchwords:	FAMILY LAW – De facto relationship – application for declaration that de facto relationship existed between applicant and respondent – parties involved with one another in a variety of contexts between 1994 and 2017 – jurisdictional prerequisites of de facto relationship – whether 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 Family Law Act 1975 (Cth) Pt VIIIAB, ss 4AA, 4AB, 90RA, 90RD, 90SB, 90SK, 90SM Commonwealth Powers (De facto Relationship) Act 2009 (South Australia)
Cases cited:	Fairbairn v Radecki (2022) 400 ALR 611 Fox v Percy (2003) 214 CLR 118, 129 Gillam & Barre [2022] FedCFamC1F 465 Jonah v White (2012) 45 FamLR 45 Jones & Dunkel (1959) 101 CLR 298 Lynam v Director-General of Social Security (1983) 52 ALR 128 Moby & Schulter (2010) FLC 93-447 Railpro Service Pty Ltd v Flavel [2015] FCA 504 RPS v R (2000) 199 CLR 620 Sinclair & Whittaker (2013) FLC 93-551 Taisha v Peng (2013) 48 FamLR 150
Division:	Division 2 Family Law
Number of paragraphs:	323
Date of last submission/s:	27 June 2022
Date of hearing:	26, 27 & 28 April 2022
Place:	Adelaide
Counsel for the Applicant:	Mr Roberts
Solicitor for the Applicant:	Robert Chrzaszcz & Associates
Counsel for the Respondent:	Mr Richards
Solicitor for the Respondent:	Tessa Hume

ADC 641 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS KENDELL Applicant
AND:	MR VILMOS Respondent

order made by:	JUDGE BROWN
DATE OF ORDER:	4 november 2022