Kersten and Taylor
[2014] FCCA 65
•24 January 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KERSTEN & TAYLOR | [2014] FCCA 65 |
| Catchwords: FAMILY LAW – Whether parties were a de facto couple – for what period were they a de facto couple. |
| Legislation: Family Law Act 1975, ss.4AA, 90RD |
| Jonah & White [2011] FamCA 221 |
| Applicant: | MS KERSTEN |
| Respondent: | MR TAYLOR |
| File Number: | BRC 2794 of 2012 |
| Judgment of: | Judge Baumann |
| Hearing dates: | 5 July and 15 August 2013 |
| Date of Last Submission: | 30 August 2013 |
| Delivered at: | Brisbane |
| Delivered on: | 24 January 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Theobald |
| Solicitors for the Applicant: | Slater & Gordon |
| Appearance for the Respondent: | Appeared on own behalf |
ORDERS
The Court declares, pursuant to ss.90RD(1) and (2) of the Family Law Act 1975, that:
(a)A de facto relationship existed between the parties;
(b)Such relationship commenced in January 2005; and,
(c)Such relationship continued from commencement until December, 2010.
The proceedings be listed for further directions at 9:30am on 20 February 2014.
IT IS NOTED that publication of this judgment under the pseudonym Kersten & Taylor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 2794 of 2012
| MS KERSTEN |
Applicant
And
| MR TAYLOR |
Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant, Ms Kersten, and the Respondent, Mr Taylor, were in a relationship. The parties disagree on the nature of the relationship and its length.
As a result, the Court decided that a discrete hearing would take place on the jurisdictional question about whether a declaration, as sought by the Applicant, that “the parties were living in a de facto relationship between 2005 and May 2011” should be made. Clearly, the Respondent, who was unrepresented at the hearing, opposes such a declaration.
The Hearing
Evidence was taken on 5 July 2013 and 15 August 2013. Counsel for the Applicant, Mr Theobald, produced written submissions on 15 August 2013 and made some further oral submissions after the cross-examination of the Respondent’s witness was completed. The Court caused a transcript of the further oral submissions to be produced and made available to the Respondent. Thereafter, written submissions from the Respondent were filed on 30 August 2013. The Court regrets the delay in providing these reasons.
The Respondent, although articulate and passionate about his position, struggled to grasp the elements of effective cross-examination. I allowed him the use of a former legal practitioner as a McKenzie Friend for the first day of hearing. The gentlemen did not attend on the adjourned date of hearing. I was informed from the bar table that Mr Taylor suffers “Asperger Syndrome” – and that this manifests in intense behaviour at times and some lack of focus. The transcript will demonstrate that the Respondent was given guidance by the Bench at times, consistent with the endeavour to ensure a fair hearing took place. The Respondent was always courteous and his written submissions do reveal well organised thoughts.
I also had the opportunity to observe both parties under cross-examination. Whilst Mr Theobald contended that credit is a “big issue”, overall I did not form the view that either party was seeking to mislead the Court. They clearly saw their relationship, assessed through the prism of their own perceptions and hopes, as different.
I did regard the adult children witnesses for the Applicant – namely, [X] (21); [Y] (24) and [Z] (23) as believable witnesses. To the extent that they would be expected to be sympathetic to the cause of their Mother, some degree of caution in accepting all their Affidavit evidence might have been appropriate; however, I was impressed with each of them and do generally accept their evidence as sworn.
The Respondent was not able to produce his accountant, Mr L, for cross-examination and although he sought to rely upon his Affidavit, I gave it little weight. I deal with the evidence of other witnesses as required to illuminate the pathway to the Court’s decision.
The Law
Although the term “de facto relationship”, in contemporary Australian society is capable of meaning different things to different people, s.4AA of the Family Law Act 1975 (“the Act”) provides as follows:
“4AA De facto relationship
Meaning of a de facto relationship
(1)A person is in a de facto relationship with another person if:
(a)the persons are not legally married to each other; and
(b)the persons are not related by family (see subsection (6)); and
(c)having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has effect subject to subsection (5).
Working out if persons have a relationship as a couple
(2)Those circumstances may include any or all of the following:
(a)the duration of the relationship;
(b)the nature and extent of their common residence;
(c)whether a sexual relationship exists;
(d)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e)the ownership, use and acquisition of their property;
(f)the degree of mutual commitment to a shared life;
(g)whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h)the care and support of children;
(i)the reputation and public aspects of the relationship.
(3)No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4)A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
(5)For the purposes of this Act:
(a)a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and
(b)a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.
When 2 persons are related by family
(6)For the purposes of subsection (1), 2 persons are related by family if:
(a)one is the child (including an adopted child) of the other; or
(b)one is another descendant of the other (even if the relationship between them is traced through an adoptive parent);or
(c)they have a parent in common (who may be an adoptive parent of either or both of them).
For this purpose, disregard whether an adoption is declared void or has ceased to have effect.”
Furthermore, this Court is empowered with the discretion pursuant to s.90RD of the Act to declare that a de facto relationship “existed, or never existed, between those 2 persons.”
The Wife’s Counsel referred the Court to the Full Court decision of Jonah & White [2011] FamCA 221 where the Trial Judge’s analysis (Murphy J) was accepted. I adopt as an accurate summary of the relevant principles enunciated in Jonah & White that:
“1. There is a necessity to establish the existence of a ‘relationship as a couple living together on a genuine domestic basis’ informed by, but not necessarily determined solely by, the individual findings with respect to the list of circumstances;
2. It is instructive that the legislature did not provide for relief of the type contemplated by Part VIIIAB of the Act in circumstances where one party has, by their words or actions, provided care, love or support to another or, expectation of a relationship of greater commitment than that which transpired. Rather, the legislature has made provision for that relief upon satisfaction of the jurisdictional fact that a relationship of a particular, statutorily-defined type, exists;
3. The legislature did not provide for relief of that type in circumstances where two people where parties to, for example, a ‘domestic relationship’, or as in New South Wales, a ‘close personal relationship’ but, rather, only where parties were in a ‘de facto relationship’ as defined;
4. The key to that definition [de facto relationship] is a manifestation of a relationship where ‘the parties have s omerged 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 merge 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;
5. Exclusivity is not a necessary element of a de facto relationship;
6. The fact that the parties live in the same residence for only a small part of each week does not exclude the possibility that they are ‘living together as a couple on a genuine domestic basis’ or that the maintenance of separate residences is necessarily inconsistent with parties having a de facto relationship;
7. The issue is the nature of the union rather than how it manifests itself in quantities of joint time. It is the nature of the union – the merger of two individual lives into life as a couple – that lies at the heart of the statutory considerations and the non-exhaustive nature of them and, in turn, a finding that there is a ‘de facto relationship’.
It is not disputed that the parties were not married to each other, nor are they related by family. Rather than a de facto relationship, the Respondent says his relationship as accountant and client initially did progress through 2005 to a relationship as boyfriend/girlfriend as well as casual lovers and supportive friends. Furthermore, and explicitly the Respondent says in his submissions, that there was “no domestic partnership or professional association of any kind after 3 May 2009.”
In now exploring and considering the evidence, it is appropriate to remind the reader (particularly the Respondent) that the enquiry thus far has been directed to the existence (or not) of a de facto relationship as defined in the Act. Only if this Court finds it has jurisdiction is it permitted to then consider the respective contributions during the relationship to the acquisition, conservation and improvement of any property and after so assessing (together with other factors, prescribed) whether any alteration to the current legal and equitable interests of the parties in property is necessary to achieve justice and equity between them.
As a result, there has been no need to examine the value of property owned by the parties or explore the finer details of the Trust, which became the co-owner of the property at [C].
The Applicant, who asserts that the relationship existed, bears the onus of proof on the balance of probabilities. The Respondent is not required to establish the claimed de facto relationship did not exist, although that is his clear position.
I accept the submission of Mr Theobald that it is important to look at the evidence “as a whole and not examine each individual element to see if it can be explained away”, save that if the Court is not satisfied as to any element, the Court should not make a declaration that a de facto relationship existed.
Material relied upon
The Applicant relied on her Affidavits filed 3 April 2012 and 21 December 2012 as well as the following witnesses (all who were the subject of cross-examination), namely:
a)Her children: [Z], [X], and [Y];
b)Her former Husband, Mr K;
c)Her Mother, Ms S;
d)Her daughter [Z]’s former boyfriend, Mr C;
e)Her form employer, Ms G; and,
f)Her friend, Ms M.
The Respondent relied upon his Affidavits filed 1 June, 2012; 27 August 2012; 29 January 2013 and 23 May 2013, together with Affidavits by:
a)His friend, Mr S;
b)His current partner, Ms A;
c)His friend, Mr J; and,
d)His friend, Mr R,
as well as the Affidavit of his accountant, Mr L (earlier referred to).
Hereafter in these reasons, statements of fact shall construed as findings of fact.
The beginning of the relationship
The Applicant is an [omitted] by profession born in 1961 (currently aged fifty-two (52) years). She was the [occupation omitted] for the Respondent prior to a more intimate relationship commencing. The Respondent was born in 1957 and is now fifty-six (56) years of age. He variously describes himself as a [occupation omitted]. He says, and I accept, he owned and operated a [omitted] business from premises in [Sydney suburb omitted], NSW for nearly 10 years. In November 2003 the Respondent purchased a property at Property [M], [M]. Whilst he worked in Sydney (and elsewhere), he would regularly travel to his home in [M] to attend to renovations.
The Applicant was living in 2004 in rented accommodation at Property O, [M] with her children. The Applicant says, and I accept, she separated from her husband [Mr K] in June 2002. They were divorced in December 2007 (Although the year 2005 was incorrectly stated). The Applicant and her former husband have, I am satisfied, maintained a cordial relationship based on their continuing interest in their children. To the extent that the Respondent says that since 2005 (or for any of that time) Mr K was living with the Applicant in a domestic relationship I reject such an assertion. It is clear from the evidence of the children that when living with the Mother, their Father would visit. At times he has assisted her with some farm tasks and the like.
The Applicant says that in January of 2005 “[Mr Taylor] moved into my rented premises at Property O, [M]”. I am satisfied that from January 2005 the Respondent stayed regularly at the Property O property – but that he also stayed at the business premises in [Sydney suburb omitted] and premises he owned in [M]. Although the description “moved into” by the Applicant should not be construed as an exclusive occupation, the Respondent’s involvement with the Applicant and her children from early 2005 satisfy me that the relationship had certainly changed from that point. I would not regard the Respondent’s description of the relationship between the parties prior to January 2005 as “boyfriend/girlfriend” and “casual lovers” as inaccurate.
The period after January 2005 to May 2009
The Applicant and the Respondent in 2007 discussed the purchase of a property at [C]. At, and prior to this time, the Respondent, it seems, was engaged in litigation in the Supreme Court of NSW where he was at risk of a damages claim against him. The Respondent says he sought advice about how to protect any new assets. It is to be recalled that if the Respondent was exposed, then the property he owned already at [M] was at risk.
The property at [C] (hereafter called “the farm”) was settled on or about 18 February 2008. The purchase price was $565,000. Funds were borrowed from St George Bank. The Applicant says the current legal owners are:
a)50% by the Applicant as Tenant in Common; and,
b)50% by a company, [P] Pty Ltd as Trustee for the [Mr Taylor] Property Trust.
The Court has not seen the Trust Deed, however, the Applicant was not challenged on her evidence that the beneficiaries of the Trust are the parties. I am unaware of whether the Trust Deed creates a discretionary Trust or a Unit Trust.
At paragraph 15 of her Affidavit filed 3 April 2012, the Applicant says:
“15. We both contributed equally to the purchase of the farm from our savings and had a loan from St George Bank. We have both attended to loan repayments although in various proportions depending on our individual contributions to the maintenance, upkeep and improvement of the farm at the time.”
Although a dispute exists as to the level of contributions, with the Respondent alleging that he has been “paying 75% of the loan for the farm”, it is not disputed that the Applicant has made payments. Furthermore, the Respondent says he offset expenses for tax administration fees for payments on farm expenses (eg. A gate). All this would require much greater investigation if the Court decides it has jurisdiction. For the purposes of the current discrete issue, it was not explored.
The Respondent asserts a form of “partnership agreement” was prepared and signed by the Respondent and signed by the Applicant. A copy of any such agreement has not been produced. The Respondent says the Applicant had the document and has, I infer, lost it or failed to disclose it. The existence of the document or its contents (and for that matter, relevance), remains a mystery. Mr S says the Respondent discussed an agreement with him in 2007. He viewed the document, which he described from his recollection, as “purely a business agreement.”
I am satisfied, on the evidence of the Applicant and corroborated by her children and Mr C’s observations made by them whilst living with the Applicant, both at the farm and the home at Property O that during this period from January 2005:
a)The parties were in a sexual relationship – at times no doubt infrequent due to the Respondent’s work away from [M] – but a genuine relationship of intimacy nonetheless;
b)The parties engaged in public social outings – with family and with friends including holidays;
c)From the time of the acquisition of the farm, both worked hard in improving the farm and renovating it. In this respect, the Respondent did have skills and a desire to make the farm more valuable. I accept that at times, in conversation with the Applicant, her Mother Ms S, and the children he gave the impression that he was committed to a very long term relationship with the Applicant and the farm was a part of their joint endeavour and plan; and,
d)Quite distinct from a purely business or professional relationship as the Respondent asserts, his demonstration of support for the Applicant and her children included:
i)Regularly (at times daily) telephone calls to the applicant when he was away (including overseas);
ii)Sharing living expenses. At paragraph 19 of the Affidavit filed 21 December 2012, the Applicant says:
“As [Mr Taylor] and I were in employment we both contributed to the everyday living expenses at the properties we lived in and also on holidays. Often one of us would pay for one thing and the other would pay for something else.”
I accept that there were frequent periods when the parties, due to the Respondent’s work in Sydney and overseas (particularly in Dec/Jan of most years), were not in the same town. I regard the statements as reflecting a common sharing of expenses when together. To this end the Respondent showed his generosity towards the children (eg. the car transfer), and although by no means a wealthy person he did share with the Applicant some of his overseas experiences. I gain the impression from the totality of the Applicant’s evidence that that she was financially independent and expected to continue as she says she did.
iii)A number of family dinners, watching television, drinks on the patio, cooking for each other on occasion, etc; and,
iv)Attending functions or organising:
1. [Y]’s grade 12 formal;
2. [Y]’s Deb Ball;
3. Attend [X]’s soccer games;
4. Attend family birthday parties;
5. Driving lessons and teaching [Y] to drive;
6. [X]’ first tattoo;
7. Teaching [X] self-defence techniques;
8. A family mobile phone plan;
9. Attending [Z]’s graduation ball;
10. [Z]’s 16th birthday party in 2006 (which the Respondent hosted).
On the totality of the evidence, summarised above, I am satisfied that the parties lived together in a genuine domestic relationship within the meaning of the Act for at least the period from January 2005 to May 2009 (a period of 4 years, 4 months).
Period post May 2009
The Respondent alleges that, at the suggestion of the Applicant, the parties “boyfriend/girlfriend” relationship stopped on Sunday 3 May 2009. Although the Respondent says that from “the end of January 2009 until we split up on May 3rd 2009 we weren’t lovers”, this is disputed by the Applicant.
Much of the evidence about whether the relationship changed, as the Respondent alleged, on 3 May 2009 is a continuation of the “she says/he says” testimony without the level of corroboration offered by the children – save for the evidence of [Z] and her then boyfriend,
Mr C. Before considering that evidence (accepting that [X] joined the Navy in March 2009 and was only home on holidays and other infrequent visits; and that [Y] had around this time commenced studies in Newcastle and thereafter lived away from [M]), there were some events which the parties shared after May 2009, including:
a)The Applicant’s work “dinner/dance” at Jupiter’s Casino in July 2009;
b)August 2009 – the parties went to the USA for 10 days. The Respondent says “the purpose for the trip, aside from a holiday, was to establish a plan for moving forward with the farm.” The parties shared a bedroom on the trip;
c)Time in the USA together in January 2010 in Vail. The parties returned on the same day (6 February 2010) although on separate flights. I am satisfied, as the Applicant states, that [Z] picked them up at the airport and took them both back to the farm.
Whilst I accept that after May 2009 the relationship was deteriorating, the evidence of both [Z] and Mr C about the relationship continuing much as it had before, is persuasive and corroborative, and I accept that evidence.
Mr C says, as the boyfriend of [Z] from March 2009 to June 2011, he lived on the farm “from May 2009 until they moved out in May 2011.” He shared a bedroom with [Z]. His Affidavit and evidence (which I accept), fairly observed that the Respondent “worked away mostly though the week and was home on weekends. He would sometimes go away for a week or two at a time.” His observations of the relationship I accept, including the regular telephone calls (mostly at around 9.30pm every night).
Much attention was directed in cross-examination to the evidence that the Applicant and/or one of the children collected the Respondent from the airport almost on every occasion. I accept they did collect him often but also the Respondent made other arrangements at times.
The Respondent was looking for business opportunities in the period connected with his [P] activities and speaking engagements. I accept the Applicant accompanied him on an occasional business activity as she alleges.
However, by the time the Applicant had commenced looking for employment in WA in January 2011, the personal relationship was, I find, in serious trouble. I do not accept the inference that the Applicant may have looked for employment in WA because the Respondent was working there at the time. In March 2011, the Applicant says she reached an agreement to work for a [omitted] company in WA. There is no suggestion this decision of the Applicant was other than unilateral. She does not allege, for example, that she discussed this job prospect with the Respondent, as one might expect if parties were in a committed genuine de facto relationship at the time.
Although the Applicant says that the relationship ceased in May 2011 (when she vacated the property), I find it ended some months earlier.
Conclusion
On the whole of the relevant evidence, I find and the Court shall declare pursuant to section 90RD(1) and (2) that for the purposes of these proceedings, a de facto relationship existed between the parties and that:
a)Such relationship commenced in January, 2005; and,
b)Such relationship continued from commencement until December 2010.
The Respondent as an unrepresented person is likely to feel aggrieved by this decision and less than happy that he must now further engage with the Applicant in the further considerations and, possibly hearing, associated with the substantive property alteration proceedings. It is important, in my view, to make some brief comment about some of the issues and points he made in his written submissions – otherwise he might wrongly take the view that they were not fairly considered, as they were.
Generally, as the Reasons above show, I found the evidence of the witnesses for the Applicant persuasive and, although not always specific as to dates, corroborative of the Applicant’s version of events. The witnesses for the Respondent were relying almost entirely on hearsay – the statements of the Respondent – and very infrequent observations of the relationship.
Although the Respondent’s current partner, Ms A, became a neighbour to the [M] home in 2007, their relationship did not really develop until late 2010 – just as, as earlier noted, the relationship between the Applicant and Respondent was drawing to a close. She says, and I accept, that by early 2011 “we became boyfriend and girlfriend.”
Further, I say that:
a)I did not regard the fact that, as a joint borrower, the Applicant apparently asked the Bank to change the names on an account as significant – or evidence of a joint account. In reality, the parties have a joint liability for the debt over the farm;
b)As the reasons demonstrate, the Court accepted that the Respondent was working away from [M] a lot and also that he was renovating the home at Property M. This did not, however, in the Court’s view, preclude the finding of a genuine de facto relationship from January 2005;
c)The Respondent says a Notice to Produce was directed to the Applicant to produce her passport – which was not answered. I cannot recall it being called for during the hearing;
d)Clearly, both parties had access to the St George Account. The fact that the Applicant accessed funds in December 2010 and January 2011 supports in the Court’s view that the relationship was ending – and that the Applicant accessed funds to improve her independence. Of course all of these transactions (as well as the withdrawal for the car in May 2010) will be considered in the substantive proceedings;
e)The fact that the Applicant described herself in the St George Loan Application and the Respondent in his 2007 Income Tax Return, were not, seen in the context of all of the evidence, conclusive evidence of the lack of a de facto relationship. The Applicant gave evidence that she forgot to change the status on the tax return. Whilst it was an error not to do so, on balance, it did not overwhelm the other evidence;
f)The fact that the Respondent had a telephone and electricity service at an address where she spent a lot of time, does not prove he lived there all the time; and,.
g)Finally, the Respondent says the heartfelt poem (Exhibit 3) was written by him to the Applicant “at the suggestion of my councillor (sic) who thought writing and explaining how messed up I’d become at Ms Kersten’s behaviour towards me and her refusal to reinstate our partnership agreement might appeal to Ms Kersten’s better nature and make her more agreeable.” There is little doubt Mr Taylor can write poetically and with emotion. The letter speaks for itself. It reflects sadness at a relationship lost.
I make the Orders that appear at the commencement of these reasons.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Baumann
Associate:
Date: 24 January 2014