Khoi & Khoi (No 2)
[2024] FedCFamC2F 61
•31 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Khoi & Khoi (No 2) [2024] FedCFamC2F 61
File number: MLC 9955 of 2021 Judgment of: JUDGE TURNBULL Date of judgment: 31 January 2024 Catchwords: FAMILY LAW – DE FACTO RELATIONSHIPS – whether a de facto relationship exists – declaration sought pursuant to s 90RD – where there is disputed and complex factual history – where failure to call witnesses enlivens the Rule in Jones & Dunkel Legislation: Family Law Act 1975 (Cth) ss 4AA, 90SM(1), s90RD Evidence Act 1995 (Cth) ss 91, 128(1) Cases cited: Australian Securities and Investments Commission v Rich [2009] NSWSC 1229
Blatch v Archer (1774) 98 ER 969
Cadman & Hallett (2014) FLC 93-603
Crandall & Crandall [2009] FamCAFC 120
Crick & Bennett [2018] FamCAFC 68; (2018) FLC 93-832
Crowley & Pappas [2013] FamCA 783
Cuan & Kostelac (2017) FLC 93-801
Elias & Elias (1977) FLC 90-267
Fabre v Arenales (1992) 27 NSWLR 437
Fairbairn v Radecki (2022) 64 Fam LR 604
Fleming & Schmidt [2017] FamCAFC 12
Halstron & Halstron [2021] FamCA 437
Herford & Burke (No 2) (2019) FLC 93-919
Jonah & White (2012) FLC 93-522
Jones v Dunkel [1959] HCA 8; 101 CLR 298
Jordan & Jordan (1997) FLC 92-736
JPJD & DADJ [2005] FMCAfam 86
Kuhl v Zurich Financial Services [2011] HCA 11; (2011) 243 CLR 361
Lavell & Lavell [2012] FamCA 34
Nelson & Nelson (1995) 184 CLR 538
Khoi & Khoi [2022] FedCFamC2F 932
Norton & Locke [2013] FamCAFC 202
Onslow & Onslow [2016] FamCAFC 7
Sandison & Thornhill (No 2) [2023] FedCFamC1F 262
Sha & Cham [2017] FamCAFC 161
Shelby & Rylan [2022] FedCFamC1A 143
Sinclair & Whitaker [2013] FamCAFC 129; (2013) FLC 93-551
Tang & Vo [2016] FCCA 880
Tomson & MacLaren [2021] FamCA 620
Division: Division 2 Family Law Number of paragraphs: 296 Date of hearing: 19–20 May (Hobart by Teams) - 8 June 2022 (City C by Teams s 128 submissions) - 9 June (City C – delivery of s 128 decision) - 21-23 November 2022 (Hobart by Teams) - 24-25 November 2022 (Melbourne) - 13 December 2022 (City D by Teams) – 15-16, 22-23 June 2023 (Melbourne) – 3-4 August 2023 (Hobart by Teams). Place: Hobart, Melbourne, City C, City D – delivered in City E Counsel for the Applicant: Ms Wilson Solicitor for the Applicant: Doan Legal until 15 February 2023 and then RRR Lawyers Solicitor Advocate for the Respondent: Mr Rothschild Solicitor for the Respondent: Brendan Rothschild Legal Group ORDERS
MLC 9955 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR KHOI
Applicant
AND: MS KHOI
Respondent
ORDER MADE BY:
JUDGE TURNBULL
DATE OF ORDER:
31 JANUARY 2024
THE COURT DECLARES AND ORDERS THAT:
1.It is declared, pursuant to s 90RD(1) of the Family Law Act 1975 (‘the Act’) , that a de facto relationship never existed between the Applicant and the Respondent.
2.Within 14 days of the date of these orders the Applicant, at his own expense, remove all and any caveats and/or encumbrance lodged by him and/or on his behalf against the title to any property held in the Respondent’s name (either solely or jointly) and/or any property in which she holds an interest — equitable or otherwise.
3.If the Respondent intends to pursue her application for costs she must make, file, and serve, within 21 days of the date of these orders:
(a)A fully completed, up to date, Financial Statement; and
(b)Written submissions (of no longer than 10 pages) addressing the factors set out in s117(2A) of the Act, the amount of costs sought based on the relevant scale/tables to be applied and any other relevant matter —
Failing of which her application for costs is dismissed.
4.If the Respondent complies with paragraph 3 of these orders, then the Applicant must make, file, and serve, within 21 days of receiving the Respondent’s documents:
(a)A fully completed, up to date, Financial Statement; and
(b)Written submissions (of no longer than 10 pages) addressing the factors set out in s117(2A) of the Act, and any other relevant matter —
With the intent, subject to leave, that the decision regarding costs will be made on the papers.
5.Save for these orders, and any costs orders made during the life of the proceedings, all extant orders are discharged.
6.All extant applications, including the Application filed 8 September 2021, are dismissed.
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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE TURNBULL
Overview of proceedings
[2]
Terms of orders sought
[3]
Background of the parties
[4]
History
[5]
Chronology
[6]
Evidence
[34]
The Applicant’s evidence
[35]
Witnesses for the Applicant
[39]
The Respondent’s evidence
[41]
The witnesses for the Respondent
[42]
Failure to call witnesses
[50]
The Law – Section 4AA Family Law Act 1975 (Cth)
[56]
Were the Applicant and Respondent in a de facto relationship
[58]
Application of s4AA
[63]
The duration of the relationship
[63]
The nature and extent of their common residence
[69]
Whether a sexual relationship exists
[82]
The degree of financial dependence or interdependence, and any arrangements for financial support, between them
[88]
The ownership, use and acquisition of their property
[108]
The degree of mutual commitment to a shared life
[115]
Whether the relationship is or was registered
[120]
The care and support of children
[120]
The reputation and public aspects of the relationship
[121]
Any other matters that may seem appropriate
[123]
Determination of the jurisdictional fact
[126]
JUDGE TURNBULL
Overview of proceedings
Mr Khoi, also known as Mr B[1] (‘the Applicant’), initiated financial proceedings on 8 September 2021 against Ms Khoi (‘the Respondent’), seeking various declarations, pursuant to s 90RD of the Family Law Act 1975 (Cth) (‘the Act’), to confirm the existence of a de facto relationship between himself and the Respondent between 2013 and 2021. If the de facto relationship is established as a jurisdictional fact, then the Applicant will prosecute an application to alter the parties’ property interests pursuant to s 90SM(1) of the Act.
[1] For example, as stated by Ms F – Affidavit of Ms F filed 17 November 2021 [3], Affidavit of Mr G, filed 11 February 2022 [2], Affidavit of Ms J, filed 25 January 2023 also referred to him as Ms J under cross-examination.
The Respondent sought a declaration that there was not, at any point, a de facto relationship between herself and the Applicant and that the Applicant’s application be dismissed with costs.
The Applicant bears the burden of proving the jurisdictional fact.[2] If he cannot show on the balance of probabilities that he and the Respondent were, at any time, in a de facto relationship, then his application for a final order under pt VIIIAB of the Act cannot continue.
[2] Tomson & MacLaren [2021] FamCA 620, [39].
Although originally listed for two days, the final hearing proceeded over 16 days, between 19 May 2022 and 4 August 2023, with some of the hearing conducted by Teams from City DD, City C, and City D, and other days in person in Melbourne. The evidence of several witnesses — including that of the Respondent — were also received by Teams whilst sitting in Melbourne.[3] A separate judgment was delivered on 8 June 2022 with respect to a certificate sought to be issued for the benefit of the Applicant pursuant to s 128(1) of the Evidence Act 1995 (Cth).[4]
[3] The trial was originally listed for 2 days, by Teams from City DD. It became clear, however, that the matter needed to be dealt with in person due to, in part, technological issues and interpreter fatigue. It should also be noted that on 11 November 2022 (after the matter had proceeded for many days, the Respondent sought and obtained an order pursuant to s 102NA of the Act and was thereby able to retain Mr Rothschild as her advocate. Then on 15 February 2023 the Applicant discharged his solicitor’s and consequently his counsel Ms Wilson. He then sought and received an order pursuant to s 102NA of the Act on 22 February 2023. He subsequently engaged new lawyers and Ms Wilson re-engaged as his counsel. Following the completion of the evidence and submissions, I sought clarification of certain matters via correspondence with the parties' solicitors including whether the oral evidence and affidavit of Mr H was to be relied upon. The parties were provided with a transcript of the beginning of Mr H’s evidence which demonstrated that it was partly performed at best, without his affidavit being read into evidence. The Applicant confirmed that he no longer relied upon the affidavit of Mr H. As the affidavit was not read into evidence, it does not form part of the evidence in this matter nor part of these Reasons. On 22 November 2023 I had to clarify again whether the evidence of Ms L, Ms K, Ms M and Mr N was relied upon by the Respondent, as those witnesses had not been cross-examined. After communication with the parties, and re-listing of the matter on 5 and 6 December 2023, the parties also confirmed that the affidavit of Mr O and Ms L, Ms K and Ms M, were not relied upon nor read into evidence. The affidavit of Ms NN was to be relied upon.
[4] See decision: Khoi & Khoi [2022] FedCFamC2F 932.
The decision remained reserved for 3.5 months when both parties — after I made an inquiry regarding several witnesses who signed affidavits but were not called to give evidence —sought to re-open their cases. Reluctantly the Court acceded to hear that request. The matter was then mentioned on 5 and 6 of December 2023, when it was confirmed that the affidavits of Ms L, Ms K and Ms M would not be relied upon by the Respondent, nor the affidavit of Mr O by the Applicant, but the affidavit of N filed 13 May 2022 would, without opposition, be relied upon by the Respondent. The matter remained reserved.
Terms of orders sought
The Applicant sought declarations pursuant to s 90RD of the Act, that:
(a)A de facto relationship existed between the Applicant and Respondent; and
(b)The de facto relationship commenced in 2013 and ended in 2021; and
(c)During the de facto relationship the Applicant and Respondent were ordinarily resident as follows:
(i)From 2013 to 2015 at P Street, Suburb Q (‘the Suburb Q property’);
(ii)From 2015 to 2021 at R Street, Town S (‘the Town S property’).
The Applicant also sought lengthy interim orders relating to property and disclosure. This included but was not limited to orders that the Respondent be restrained from selling, alienating, disposing of, further encumbering and otherwise dealing with any interest in:
·The real property at R Street, Town S, Victoria, Certificate of Title Volume … Folio … (‘the Town S property);
·The real property at T Street, Suburb U, Victoria, Certificate of Title Volume … folio … (‘the Suburb U property’);
·The proceeds of sale of the real property at V Street, Town W, Victoria Certificate of Title Volume … folio … (‘the Town W properties’);
·Any interest in the X Pty Ltd;
·Any other real or other property in which the Respondent has an interest.
As foreshadowed, these Reasons only address the jurisdictional question of whether there was a de facto relationship. If that threshold is reached and a declaration is made, then the Applicant’s property application can be considered.
In response to the application, the Respondent sought a declaration, pursuant to s 90RD of the Act, that a de facto relationship never existed between the parties, that the Applicant withdraw the caveats lodged on the titles to the Town S and Suburb U properties at his expense, and that the Application be dismissed with costs.[5] The Respondent claimed that her relationship with the Applicant was limited to friendship and contested the claims that:
(a)A de-facto relationship existed with the Applicant;
(b)The Applicant co-inhabited the same address as her;
(c)There were any sexual relations or even intimacy between the parties;
(d)The Applicant made contributions to the acquisition, development and/or maintenance of her assets;
(e)There was any aspect of mutual commitment to a shared life with the Applicant;
(f)The Applicant cared for her children;
(g)There existed a public reputation of the parties' relationship — beyond a friendship.
[5] Amended response, filed 7 March 2022 2 (‘Respondent’s Response’).
Background of the parties
The Applicant, born in 1975, is currently 48 years of age. He stated that he usually worked as a tradesperson but has, since 2021, held irregular work due to his ill-health.[6] At trial he said that he was working in a factory. The Applicant was previously married to Ms Y from 2000‑2009, with whom he had two children.[7] The Applicant married Ms Z in 2014.[8] He said that he divorced Ms Z in 2017.[9]
[6] Affidavit of Mr Khoi, filed 5 May 2022 [5] (Applicant’s 5 May 2022 affidavit).
[7] Ibid [7].
[8] The Applicant was inconsistent in his evidence around when this relationship began – the marriage certificate establishes the date as 2014.
[9] Applicant 5 May 2022 affidavit (n6) [8].
The Respondent, born in 1977, is currently 46 years of age. She works as a sales representative.[10] The Respondent was previously married to Mr AA from 2000-2016[11] with whom she had two children — Mr BB, born in 2002 and Mr CC, born in 2004.[12]
[10] Affidavit of Ms Khoi, filed 13 May 2022 [2] (‘Respondent’s affidavit’).
[11] Applicant’s 5 May 2022 affidavit (n6) [10].
[12] Respondent’s affidavit (n10) [5].
History
The Applicant and the Respondent first met in the early 1990’s at an English language school in Suburb Q, Victoria.[13] The parties' attended this venue for less than one year and then lost touch.[14] It was not until nearly 20 years later, in 2012, that the parties met again, by chance, at a local sports club.[15] This was one of the few facts agreed in this matter. The parties were in dispute about most of the central issues. The Applicant claimed that the parties' lived together at several addresses, purchased property together and maintained a sexual relationship throughout. The Respondent said that the parties never lived nor purchased anything together and at no stage had even a slightly romantic relationship, which she described as a ‘purely platonic friendship’.[16]
[13] Ibid [26].
[14] Applicant’s 5 May 2022 affidavit (n6) [6].
[15] Ibid [9].
[16] Respondent’s affidavit (n10) [93].
The factual disputes were so great that, for ease of reference, I set out here a chronology showing a timeline of the period the parties knew each other — listing the facts agreed and the major areas of dispute. The table also identifies witnesses who did not provide evidence on each of these points. Both parties failed to call witnesses who could have shed significant light on the many areas that were in dispute. The most obvious were the Applicants sister Ms EE and the Respondent’s former Husband, Mr AA.
Chronology
DATE FACT Evidence 1 Early 1990’s The parties first meet The Applicant said that the parties' attended English school together for less than one year and then lost touch.[17] The Respondent said that the Applicant and the Respondent first met in the early 1990’s at an English language school in Suburb Q, Victoria.[18] 2 2000 Respondent Marries and lives with Mr AA The Respondent claimed that she married and cohabitated with Mr AA from 2000-2016[19] with whom she had two children — Mr BB, born in 2002 and Mr CC, born in 2004.[20] Applicant Commences relationship with Ms Y The Applicant claimed that in 2000, he commenced a relationship with his former partner Ms Y with who he has two children, Mr FF and Mr GG. This ended in 2009.[21] 3 2008 Respondent lives with her parents in Suburb U No evidence from the Applicant. Respondent’s evidence was that she lived at her parents’ house with Mr AA and her two children until moving into a property at R Street, Town S (‘the Town S property’).[22] Evidence of Mr HH (the Respondent’s Father) that the Respondent, Mr AA and their two sons moved into their home at JJ Street, Suburb U (‘JJ Street’) in 2008 and remained until moving into the Town S property in 2015.[23] Both parties failed to call Mr AA to corroborate their evidence. The Applicant failed to call Ms EE with whom he said the parties lived for a year in 2014/15. 4 2009 Applicant’s relationship with former partner Ms Y ended The Applicant’s evidence was that his relationship with Ms Y ended in 2009.[24] 5 2010 KK Pty Ltd in operation. The Applicant’s evidence was that worked alongside the Respondent and Mr AA in KK Pty Ltd in 2012.[25] The Applicant said he was paid in cash and saved $80,000 which he used to later contribute towards the Town S property. This money was kept in a concealed location in the Suburb Q property.[26]
Exhibit A3 is an advertisement for work relating to business KK Pty Ltd which showed the Applicant’s telephone number.The Respondent’s evidence was that the Applicant was not involved in the running or ownership of KK Pty Ltd. She explained that the Applicant’s name was on an advertisement because he offered to take business phone calls when Mr AA was unable to. The Applicant was involved in taking phone calls only.[27] Evidence of Mr LL that from 2010-2016, he and Mr AA jointly owned KK Pty Ltd. He said that the Respondent was involved in paperwork and as a business contact. After the Respondent and Mr AA divorced, Mr LL removed his name from the business.[28] He denied that the Applicant was an owner of the business. His evidence was clear that he and Mr AA owned and ran the business. He claimed to have met the Applicant only once or twice before. Both parties failed to call Mr AA to provide evidence about who ran and / or worked for KK Pty Ltd. 6 2012 Parties met at local club.[29] The Applicant’s evidence was that nearly 20 years later, in 2012, the parties met again, by chance, at a local club.[30] Applicant asserted that the parties were in unhappy marriages and became close, meeting frequently at the club and on occasion going to a restaurant together.[31] The Respondent’s evidence was that after meeting and conversing, the Respondent told the Applicant that she worked in sales.[32]
The Respondent said that she and Mr AA were having marital issues[33] but denied telling the Applicant anything relating to problems in her marriage during these early discussions.[34]7 2012 Respondent writes a will leaving all to Mr AA and Sons Evidenced at pages 31-32 of subpoena material from MM Law Firm. 8 2013 The Applicant claims the parties were in a romantic relationship Evidence of Ms NN that the Applicant was introduced to her by the Respondent as a close friend.[35]
The parties are at polar opposites in relation to the nature of their relationship at this time which will be explored in depth later in these Reasons.9 2013/2014 Applicant sister Ms EE moves into apartment at Suburb Q.
The Applicant moved in some time later.The Applicant’s position is that the parties lived together in a property at Suburb Q (‘the Suburb Q property’) from 2013-2015.[36] Consistently through his evidence he claimed that he, the Respondent and Applicant’s sister Ms EE [37] lived at this property together.[38] The Applicant acknowledged that this was a small property and that he the occupied the living room and slept on a sofa bed.[39]
After moving in together in 2013 they lived there for more than 1 year together.[40] The Respondent would stay about 5 nights per week and would live at her parents’ house at Suburb U the rest of the time where her children were living.[41]
The Applicant also gave inconsistent earlier evidence that the parties commenced living together with her two sons in 2014 in a rental property at Suburb U.[42]
There was further inconsistency under cross-examination - the Applicant said initially that the relationship commenced about one week after re-meeting in 2012, then stated it started in 2013. He said that they lived together from 2014 and commenced their de facto relationship in 2015.The Respondent’s account was that in 2013 she helped the Applicant and his sister find affordable housing, being the Suburb Q property.[43] Then in 2014 she again helped the Applicant and his sister apply for accommodation under a tenants agency, then assisted the Applicant and his sister to move to OO Street, Suburb PP (‘the Suburb PP property’). The Respondent asserted that the Applicant lived there for another 5 years as well as with his then wife Ms Z for a short duration.[44] The Respondent did not live there.[45] At this stage she, Mr AA and the children lived at her parents house at JJ Street, Suburb U.
The Suburb Q property is a small apartment that could not accommodate herself and her children as well as the Applicant and his sister.[46]There was also evidence, in the form of migration documents, that the Applicant lived at a property at QQ Street, Suburb RR (‘the Suburb RR property’) in 2014.[47]Evidence of the Respondent’s Father Mr HH that the Respondent lived with him until 2015 at JJ Street, Suburb U when she moved into the Town S property with Mr AA and the children. Both parties failed to call Ms EE to give evidence about who lived at the Suburb Q property and /or Suburb PP and Suburb RR properties and when they did so.
The Applicant failed to call his former wife Ms Z to provide evidence about whether she or the Applicant lived at the Suburb Q property or at the Suburb RR property.10 2014 Applicant marries Ms Z It was the Applicant’s evidence that he was in a relationship with Ms Z in 2012 and later married 2013[48] but his recollection changed during cross-examination after being presented with the marriage certificate which showed he was married to Ms Z in 2014. The Applicant said that the Respondent was present at the signing of the marriage certificate but not at the wedding party.[49] The Respondent’s evidence was that the Applicant told her he was happily married to Ms Z and had sent her photos of his marriage ceremony.[50] There is evidence that the Applicant remained in a relationship with Ms Z until early 2017.[51] The Marriage Certificate is dated 2014. The Applicant failed to call Ms Z to provide evidence as to the length of the relationship and where they lived. 11 2014 Spousal Visa application made for Ms Z The Applicant agreed under cross-examination that he sponsored Ms Z in 2013 and that he signed forms for her but said that his involvement extended to signing documents only and that he otherwise had no dealing with the visa application process. Exhibit R2: Department of Immigration and Border Protection – Form ‘Sponsorship for Partner to Migrate to Australia’ completed by Mr B, DOB 1975, of QQ Street, Suburb RR Victoria. And signed 2014
Exhibit R1: Department of Immigration and Border Protection – Form ‘Advice by a Migration agent/ exempt person of providing immigration assistance. Completed by Migration Agent Mr SS, for Mr B, DOB 1974 of QQ Street, Suburb RR and signed 2014.
Exhibit R10: Department of Immigration and Border Protections, Certificate, and notification regarding the migration review tribunal. Information provided from a source alleges that the Applicant was offered $40,000 to sponsor a woman who is in Country WW on a partner visa.The Applicant failed to call Ms Z to provide evidence regarding the Visa applications. 12 2014 VV Pty Ltd commences operating. The Applicant’s evidence was that the parties started a business called VV Pty Ltd together for their mutual benefit.[52] Annexed to his affidavit was an ASIC company extract with his and her residential address of P Street, Suburb Q, and a separate address for her at JJ Street Suburb U[53] The Respondent’s evidence was that she gave the Applicant authority to use that company, which was in her name but not using. She explained that this was an act of generosity to give the Applicant an opportunity to start something for himself.[54] The Respondent conceded under cross-examination that the parties did set up VV Pty Ltd together but said that this was the only company that they ran together. The project was started as a development project and if the Applicant won his case (against his sister in Court), then the Respondent would be trusted to sell the project. The Respondent arranged an accountant to set this up however the property company never operated.[55] Both the Suburb Q and JJ Street addresses are referred to in the ASIC record. 13 2014 XX Group registered The Applicant’s evidence was that XX Group was a business name that the Respondent had registered for the parties’ first business ‑ created around the time the relationship commenced.[56] The Respondent agreed that XX Group was owned by VV Pty Ltd.[57] The JJ Street address is referenced in the ASIC documents. 14 2014 Applicant makes a will appointing the Respondent as executor and leaving her 50% of his assets; The Will provided for the Respondent to Act for Applicant in Court Proceedings if he was unable The Applicant’s evidence was that he made a Will which was prepared by his former Lawyer Mr YY.[58] The Applicant did not tell his lawyer that he was in a relationship with the Respondent referring to her in the Will as a ‘very good friend.’[59] The Respondent denied that she accompanied the Applicant to the lawyer to draft the will or using the phrase ‘good friends’. She said that she had been helping the Applicant with his Court proceedings against his sister and that he had no assets at the time.[60] 15 2014 Respondent and Mr AA celebrate 14th wedding anniversary The Applicant’s evidence was that he and the Respondent were in a relationship in 2014, although as ‘boyfriend and girlfriend’ — not de facto — even though they were living together at the Suburb Q property.
The Applicant recognised the Respondent and her ex-Husband Mr AA in the photo Annexed to the Respondent’s affidavit (of purportedly the Respondent’s 14th wedding anniversary) but denied attending nor recognising the location of the celebration.[61]The Respondent produced a photo of a cake and herself and Mr AA celebrating their 14th anniversary, which she said occurred in 2014.[62] This evidenced that she and Mr AA were still together and that she could not have been in a relationship with the Applicant. The Respondent failed to call Mr AA to provide evidence regarding the celebration of their 14th anniversary. 16 2014 Travel Insurance held by Mr AA No evidence given by the Applicant in relation to this. Respondent’s evidence was that of a letter addressed to Mr AA from AB Company Travel Insurance dated 2014 providing travel insurance for Mr AA, the Respondent and her two children for period of 2014 until 2015.[63] During that period they ‘travelled as a family to [Country WW] to visit some extended family who are still living there. We went to [City AC].’[64] The Respondent failed to call Mr AA who may have provided evidence regarding travel for him, the Respondent, and her children in 2014/15. 17 2014 - 2016 Applicant involved in Court proceedings with his sister.[65]
The Respondent assists the Applicant with the proceedings.The Applicant’s evidence was that the Respondent assisted him with the proceedings because she was his partner and saw his loss as her loss.[66] Also that there was an agreement that the legal fees incurred in the litigation of approximately $1,000,000 would be funded by income generated from their businesses.[67] The Respondent’s evidence was the Applicant, as a friend, asked her to assist him with Court documentation and interpretation. His offer to her, in exchange for her help, and if he was to win the Court action, was that he would subdivide his property he was hoping to receive from the case,[68] and she would earn a professional commission on the sale of the land. The Respondent said that in consultation with Mr AA, she agreed to help and liaised with the Applicant’s lawyer at the time.[69] The Respondent maintained the position that she wanted to help the Applicant as a friend and because of the potential benefits for her, not because she was in an intimate relationship with the Applicant.[70] The Respondent denied paying the Applicant’s legal fees of $1,000,000,or agreeing to do so, and denied that she had a business with the Applicant at this time.[71]
The Respondent annexed a Decision of a Court to her affidavit, however this evidence is inadmissible under s91 of the Evidence Act 1995 (Cth).Both parties failed to call Mr AA to provide evidence as to any agreement regarding assistance to the Applicant in his litigation against his sister. Mr AA may have also been able to provide evidence as to whether funds from KK Pty Ltd were used to fund the litigation.[72] 18 2015 Town S is purchased in Mr AA’s name – The Respondent, Mr AA and the children live in Town S at time of purchase, or did the Applicant and the Respondent live there? The Applicant’s evidence was that the Town S property was purchased by Mr AA using financial contributions made by himself and the Respondent.
He claimed that the Town S property was purchased in equal shares between the Applicant, Respondent and Mr AA but registered in Mr AA’s sole name as he had the longest employment history that enabled him to borrow funds with favourable terms. The Applicant said that he contributed $80,000 towards the total purchase price from his personal savings largely accumulated before the relationship.[73] The Applicant, Respondent and her children moved into the Town S property in 2015.[74] The Applicant accepted that some utility bills were in Mr AA’s name. He said that Mr AA’s name was on the gas and internet bills because he signed a contract to have internet for the boys and he did not object as Mr AA was supporting the children and the Respondent by paying the gas and internet.[75] In response to Mr AA sorting out the solar, the Applicant said that he didn’t get involved if Mr AA wanted to pay for anything, he didn’t object.[76] [I note at this early stage that this evidence did not sit comfortably with his other evidence that the Applicant attempted to hide or downplay his relationship with the Respondent from Mr AA and the children.]The Respondent’s evidence was that the Town S property was purchased in her Husband’s name for $540,000 plus fees of approximately $40,000. Mr AA’s sister loaned them $200,000 to help purchase the property and $378,000 was obtained from AE Pty Ltd.[77] An email in 2015 from Mr AA to Mr AF was produced showing Mr AA arranging to have solar installed at Town S. The Respondent provided utility bills to demonstrate that she lived in Town S with Mr AA.[78] Mr HH said that the Respondent, Mr AA, and the children moved out of his home in 2015 and into the Town S property which they had recently purchased.[79] Both parties failed to call Mr AA to provide evidence as to whether and / or how much the Applicant contributed to Town S. Mr AA may have been able to provide evidence as to who lived at Town S and when. The Applicant failed to call Ms EE who could have provided evidence about he and the Respondent moving out of Suburb Q and into Town S. 19 2015 onwards Visitors to Town S Applicant’s evidence was that family and friends would come to visit the parties and stay for short durations at the Town S property[80] The Respondent’s evidence was that Mr AA and her often entertained at the Town S property, regularly inviting friends for the weekend. Most guests would sleep at the house for the duration of the visit.[81]
The Respondent stated that when her and the children lived between Town S and her parent’s house — after she separated from Mr AA in 2016 — her friends would come stay at Town S even when she was not there. She would give them the code to access the keys and ensure they had cleaned up after themselves.[82] This included the Applicant.Mr G gave evidence that he visited the Applicant, Respondent and Respondent’s children at the Town S property in 2018 for the first time. Mr G visited on more than 10 occasions including in 2018 when he stayed there for several days to repair a shed.
Ms J (wife of Mr G) also said she visited the parties at the Town S property on over 10 occasions. On occasion they would give the Respondent and her children a lift to Suburb Q.[83]The Respondent failed to call Mr AAto provide evidence around living at Town S and having visitors come to say. 20 2015 Appeal to AAT of decision to reject spousal Visa for Ms Z Exhibit R11- Decision Record of the Department of Immigration and Border Protection for application for Partner Visa and Partner residency visa filed in 2014. Letter dated mid-2015 rejects application. The Applicant failed to call Ms Z to provide evidence about the appeal to the AAT and rejection of the spousal visa and the true nature of their relationship and their actual living arrangements. 21 2016 The Respondent and Mr AA. The Applicants evidence was that the Respondent told him Mr AA and her were divorced in 2016.[84] The Respondent’s evidence was that the divorce resolved harmoniously and she and the children continued to live at Town S as the children were enrolled in schools in the area.[85] Evidence of Mr HH that after the divorce, Mr AA moved to Melbourne and the Respondent and children remained living at the Town S property.[86] The Respondent failed to call Mr AA to provide evidence as to when his relationship ended with the Respondent and when he moved out of the Town S property and his knowledge of the Respondents relationship with the Applicant. It is noted that the Applicant could also have called Mr AA as a witness. 22 Late 2016 X Pty Ltd commenced operating The Applicant’s position was that he worked together with the Respondent and Mr AA at X Pty Ltd.[87] The Respondent’s evidence was that her business partner was Mr LL and that they were the registered directors of X Pty Ltd. The Applicant had no part in the running or ownership of X Pty Ltd.[88] Evidence of Mr LL that the Respondent oversaw the paperwork, and he was involved in meeting clients and sales work.[89] He did not have any recollection of the Applicant working for X Pty Ltd. The Applicant failed to call Mr AA to give evidence about his employment and role in X Pty Ltd. The Applicant failed to call an inspector who he asserted could provide evidence about his working at X Pty Ltd.[90] 23 Early 2016 Decision of AAT regarding Ms Z’s Visa application The Applicant’s evidence was that he denied being the person who gave oral evidence at the hearing and denied having any interactions with the AAT, including denying knowing what the AAT was. The Applicant said that he signed forms but was not involved in any other part of the Visa application and appeal process. Exhibit R3: is the decision of the Administrative Appeals Tribunal, however this evidence is inadmissible under s91 of the Evidence Act 1995 (Cth). The Applicant failed to call Ms Z to provide evidence about the appeal to the AAT and involvement of the Applicant in the process and whether he was the person who gave evidence at the hearing or whether there was an imposter. 24 2016 Town W properties purchased in Respondent’s name The Applicant’s evidence was that in early 2016 the parties purchased two properties at V Street, Town W (‘the Town W properties’), but before settlement was reached, they sold them for $280,000 to Mr AG by nominating him as a second purchaser.[91]
The Applicant asserted that he put money towards the purchase of the properties, as well as to the costs of fixing and preparing the Town W properties as well as using his own labour but made the purchases of materials under X Pty Ltd.[92]
The Respondent also signed a contract to purchase one of the V Street, Town W properties but sold this on to the Applicant’s friend Mr H by nominated his as nominee purchaser. The Applicant produced as Khoi-23 a title search for V Street, Town W which provided Mr H as sole proprietor.[93]The Respondent’s evidence was that the Applicant had nothing to do with the V Street, Town W Properties and that she dealt with Mr AG, with whom she jointly purchased the properties. The Applicant was not involved in the Town W properties.[94]
The Respondent’s evidence was that she sold V Street, Town W to Mr H, but this sale was undertaken solely by her.[95] The Respondent denied that she ever met Mr H, including socially, and he was unaware of her financial problems.[96]The evidence of Mr AH was that his Father (Mr AG) and the Respondent purchased the Town W properties together for $320,000 each holding 50% share. The purchase was made with jointly borrowed funds of $208,000 from a bank. These properties were sold in early 2021 for $480,000.[97] Both parties failed to call Mr AG to provide evidence in relation to the purchase of the Town W properties. 25 Early 2017 The Applicant added to Respondent’s health insurance; Named ‘partner’ on document. Applicant’s evidence was that the Respondent added him to her health insurance policy in early 2017, when she removed her former Husband Mr AA.[98] Initially the Health Insurance was with AB Company and provided for cover for the Applicant, Respondent and two children, then changed to AJ Company.[99] Documentation showed his name and description as ‘partner’.
Applicant’s evidence: Letters to Mr B from AJ Company with statement of health insurance to address of R Street Town S.[100]Respondent’s evidence was that she felt bad for the Applicant, knew about his marriage problems, knew about his health problems and that Medicare would not cover everything. A feeling of helplessness overcame her, and she added the Applicant to her AB Company Private Health insurance.[101]
The Respondent said that she could not put him on the health insurance using his address as well.[102]26 2017 Applicant and Ms Z are divorced. The Applicant’s evidence was initially that his relationship with Ms Z ended in mid-2014 and then that they were divorced in late 2014.[103] Earlier he stated that he and Ms Z legally divorced in 2017.[104]
The Applicant failed to call Ms Z to provide evidence about the breakdown of the relationship and when it ended. 27 April 2017 Town S is transferred into the Respondent’s name after property settlement from break down of marriage between Respondent and Mr AA The Applicant’s evidence was that the Respondent was the registered proprietor of Town S after being transferred the property to her as part of a property settlement with Mr AA in 2017.[106] He gave no evidence as to why, at that point, his name was not added to the title. He also claimed that the Respondent agreed to transfer to Mr AA her interest in a commercial property located at AK Street, Suburb AL in exchange for Town S.[107] The Respondent’s evidence was that she and Mr AA agreed to have the title transferred into her name. She re-financed with NAB for $380,000 and paid $1,027.85 to Mr AA.[108] The Title search of the Town S property has the Respondent as Sole Proprietor from early 2017.[109] Mr AA also received a property held by their self-managed superannuation fund at AK Street.[110] Both parties failed to call Mr AA to provide evidence about the property settlement and transfer of Town S to the Respondent – although the documents arguably speak for themselves. 28 2017 Applicant changes name from Birth name Mr B to Mr Khoi The Applicant’s evidence was that after being a victim of identity theft he changed his name to Mr Khoi. The Respondent completed the change of name documentation and had it sent to her parents address of JJ Street Suburb U.[111] The Respondent’s evidence was that the Applicant did not have a stable address to send the document to and that is why it was sent to her parents’ address.[112] 29 2017-2018 Respondent and children live with her parents The Applicant’s evidence was that the parties continued to live together at the Town S property at this time.[113] In 2017 the Respondent said she and her children lived between Town S and her parents’ house,[114] and she looked after her father.[115] The Respondent and Mr AA jointly decided to transfer the children to AM School because she was living at her parents’ house.[116] This evidence was confirmed with a photograph showing Mr BB in an AM School uniform [117] The Respondent failed to call Mr AAto provide evidence to confirm or deny her assertions regarding the children’s school and motivations for changing schools. 30 Mid-2018 VV Pty Ltd de-registered Per ASIC information: see Applicant 5 May affidavit Khoi-2, and above. Her address was stated to be P Street Suburb Q in her position as previous Director and Secretary but as a Previous Member, her address was stated as JJ Street. 31 Late 2018 Medical Record Applicant evidence that his medical records recorded the Town S property as his address from 2018 – 2021.[118] The Respondent provided no specific evidence as to why the medical records had Town S as the address. 32 2018 Evidence of Ms F that in 2018 she attended the Town S property to celebrate the Applicant’s birthday. 33 2018 Respondent’s Mother dies The Applicant’s evidence was that he did not attend the funeral because he was busy with work and the Respondent did not want him there and see Mr AA at the event and the relationship was still secret from the Respondent’s sons.[119] This was the case even though her sons had lived with them at Suburb Q and Town S for years. His concern regarding Mr AA existed even though he worked with Mr AA, purchased property with him and Mr AA sometimes stayed at Town S when he and the Respondent lived together there with her sons.
Applicant’s evidence was that the Respondent did not move back into her parent’s house to look after her father, but they remained living together at the Town S property.[120]The Respondent’s evidence was that she did not disallow the Applicant from attending her mother’s funeral, denying the assertion that she did not want Mr AA and the Applicant seeing each other.[121]
The Respondent’s evidence was that she and her children were already living between her parents’ house and Town S in 2017, before the death of her mother. Once her mother died, her time at JJ Street Suburb U increased to look after her father.[122]Evidence of Mr HH that since his wife’s death, the Respondent has helped him with housework when she returns to Melbourne.[123] Both parties failed to call Mr AA to provide evidence as to his relationship with the Applicant and whether there was likely conflict if the Applicant had attended the funeral. 34 Late 2018 Refinance of Town S The Applicant provided no evidence on this issue. The Respondent’s evidence was that she refinanced Town S with AO Bank and borrowed an extra $200,000.[124] 35 Extended Family Gathering at Town S The Respondent’s evidence that towards the end of 2018, there was an extended family gathering at the Town S property as her uncle’s family from Country WW were visiting.[125] A photograph of the people at the gathering was annexed to her affidavit. The Applicant was not in the photo.[126] The Respondent failed to call any family members from the photo who could provide evidence about this family gathering and whether the Applicant was present and/or whether either party lived at Town S at the time. 36 Late 2018 Sporting licence Applicant’s evidence was that he had a sporting licence with the Town S Property as his address.[127] The Respondent’s evidence was that the Applicant asked if he could use her address for the licence.[128] 37 2019 Respondent executed will appointing Applicant as executor leaves her non-superannuation assets to him. The Applicant’s evidence was that the Respondent executed a Will appointing the Applicant as Executor and Trustee and the Applicants sister in his stead if he was unable. The Will gives her superannuation assets to her children and her non-superannuation to the Applicant. There was no evidence as to the makeup nor value of each class of asset. Applicant said this was because they were partners as evidenced by letter from MM Law Firm dated 2018, to Ms Khoi with draft Will for signing[129] and a signed copy of the executed Will dated 2019.[130] The Respondent said she thought she was going to die at the time as she had lost her mother and was faced with a possible serious illness.[131] She used the term ‘friend’ in the Will to describe the Applicant because she was not in a relationship with him. 38 Early 2019 Purchase of Land in Country WW The Applicant’s evidence was that the parties’ jointly purchased land in Country WW.
The Applicant said that the parties purchased land in Country WW when on a trip to Country WW. This was for the purpose of having land for the parties to retire to. The Applicant said that he travelled to Country WW in early 2020, to commence building on this land.[132] Respondent provided him with a credit card to use for the withdrawal of funds for living expenses and building materials.[133]The Respondent’s evidence was that in early 2019 she partially used loaned money from AO Bank (from refinance of Town S) to purchase land in Country WW.[134] This land was hers alone and the Applicant made no contribution towards it. Because she was in Australia, she asked Mr AP in Country WW, to effect the sale on her behalf and hold onto the ‘red book’. The Respondent paid him approximately $80,000 through money transfer company.[135]
The Respondent, with Mr AP’s assistance, purchased land in Country WW at Suburb AQ, Town AR, City AY, Country WW.[136] The Respondent disagreed that the intention was to create a future life for her and the Applicant and said that the Applicant travelled to Country WW independently of her to set up a future life for himself there.The Respondent failed to call Mr AP to provide evidence about the purchase of the land in Country WW – although the Applicant did not contest the evidence regarding Mr AP’s involvement in the matter. 39 Mid-2019 Travel to Country WW The Applicant’s evidence was that the parties flew together to Country WW to inspect land marked for building their future home.[137] Hotel Records have the Applicant and Respondent occupying a room in mid-2019.[138] The Respondent’s evidence was that around 2019 the Applicant said that he was travelling to Country WW to start a new life in Country WW with friends who could support him. The Applicant told her he had lost faith in the legal system and hated it in Australia.[139]
The Respondent’s evidence was that she travelled to Country WW and stayed in accommodation with this friend Ms NN, who had travelled there a day or so prior, at a location more than 4 hours from the Applicant’s hotel. She accepted the Applicant was also on the flight. She also denied being in Country WW on dates provided by the Applicant, being mid-2019 but confirmed that she was in Country WW in mid-2019.[140] She was of the view that the hotel records were a forgery.Ms NN gave evidence that her and the Respondent travelled to Country WW in mid-2019, with the Respondent returning to Australia in mid-2019.[141]Ms NN said she picked the Respondent up from the airport and the Respondent stayed with her. The Applicant failed to call the Hotel Owner who could have given evidence regarding the authenticity of the hotel record he produced. 40 Late 2019 50% Town S sold to Mr AH The Applicant’s evidence was that the parties made plans to sell 50% of Town S because it was far too large to maintain. The proposed purchaser was Mr AH. He produced receipts from Mr AH he said evidencing that Mr AH paid him $15,000 as a holding deposit – termed ‘rent’.[142] [It is noted that the payments were made in mid-19 and the contract for sale is dated late 19] The Respondent’s evidence was that in 2019, the upkeep on the Town S property was too tiring for her and she sold half to a friend Mr AH for $612,500. The Respondent accepted partial payment of $360 000 at sale and the rest to be paid back over short period of time.[143] This money she said she used for the purchase of commercial land at T Street, Suburb U for $245, 000 (the T Street property’).[144] Mr AH gave evidence that he purchased a 50% share in Town S for $612,500. There was an agreement that Mr AH would pay the Respondent $412,500 in advance then the balance paid over three years at a rate of $750 per month (totalling $200,000). Mr AH never moved into the Town S property. In or around mid-2021 Mr AH and the Respondent decided to sell the Town S property. There was an agreement in place that upon sale, the Respondent would pay back to Mr AH $412,500 plus $100,000 interest.[145] He denied that he gave the Applicant $15,000 as a holding deposit, but agreed he paid him $15,000, but said the payment had no relevance to the Town S property, but rather related to an investment in a farm.[146] He said that the invoices showing the $15,000 payment were forgeries. 41 Late 2019 T Street property purchased The Applicant’s evidence was that the parties purchased T Street, Suburb U for $245,000 as an investment property, which he said was purchased using funds from the party’s business.[147] The Respondent’s evidence was that in late 2019, she used the money from the part sale of Town S to purchase the T Street property for $245,000.[148] The Applicant was not involved in the purchase of property.[149] Applicant was not a joint purchaser nor owner of the property, nor was there a mutual arrangement.[150] 42 2019 Applicant attempts a business venture in Country WW Evidence of Mr AH that in 2019 he invested $15,000 (paid to the Applicant) to go towards a farm business in Country WW. Mr AH transferred $15,000 via 3 payments ($1,000 in 2019; $4,000 and $10,000 in 2019) claiming that the Applicant requested he fill the description as ‘rent’ so the transactions would have nothing to do with Centrelink or the Tax Office. The business did not eventuate, and their relationship later deteriorated.[151] The Applicant provided evidence Annexed to his 5 May 2022 affidavit of the NAB statements and payments of ‘rent’. His evidence was that these were a holding deposit as Mr AH was the proposed purchaser of 50% of the Town S property.[152] 43 Late 2019 Credit card in name of Ms Khoi The Applicant’s evidence was that before travelling to Country WW in early 2020, the Respondent provided him with a Country WW Credit Card. This was to be used in Country WW to withdraw funds for living expenses as well as for building materials and labour hire. The Respondent transferred money to the credit card for spendings.[153] Exhibit A1 was a picture of a credit card with the name of the Respondent on it. The Respondent’s evidence when shown exhibit A1: Credit Card, she confirmed that her name was on the credit card, but she has never seen that card before.[154] The Respondent conceded that she had purchased things for the Applicant but had not provided him with this card.[155] 44 ? 2020 The Respondent organises travel insurance for the Applicant No evidence from the Applicant on this issue. Not cross-examined on this issue. The Respondent’s evidence was that she helped the Applicant get travel insurance and that she helped other people also.[156] 45 Late 2020 Sale of the land in Country WW[157] The Applicant’s evidence was that the land in Country WW was sold and he received some proceeds on the condition that he sign an agreement that he would not make a claim against the Respondent’s assets in Australia.[158] The Respondent said that the Applicant threatened her family to extort the Respondent’s property, forcing her to sell the property for a reduced value, under duress.[159]
The Respondent agreed to sell the Country WW Property at the price demanded.[160]The Respondent’s sisters refused to give evidence at the trial and their affidavits were not accepted into evidence. They may have provided evidence as to the purchase and sale of the Country WW property and the circumstances around this — in particular if they were threatened by the Applicant. 46 Late 2020 Applicant removed from Respondent’s Will and sons beneficiaries, then former Mr AA The Applicant’s evidence was that after he signed the legal agreement regarding the Country WW property, the Respondent updated her Will in late 2020 to remove all reference to him, his sister and his two sons from having any involvement in her estate.[161] The Respondent’s evidence was that she removed all reference to the Applicant and his family from her Will because ‘it was due to the threats to my sister and family both in Australia and Country WW.’[162] 47 End 2020 Threats towards Respondent’s family The Applicant denied threatening Respondent’s sister in Country WW. The Applicant’s evidence was that he met her sister Ms AX for the first time in 2018 when she was in Melbourne for her mother’s funeral. He asserted that he had a good relationship with her and would bring her and her family gifts when he travelled to Country WW. In 2020, the Applicant attended her home several times to plea with her to persuade the Respondent to authorise the sale of land because he exhausted his money and could not meet living expenses.[163] The Applicant denied sending threatening text messages. The Respondent claimed that due to threats to her family from the Applicant, she ultimately gave the Applicant money from the sale of land she owned in Country WW. The Respondent’s evidence was that in late 2020, the Applicant went to her sister’s house in Country WW and threatened her husband. Then the Applicant sent threatening text messages to her sisters.[164] The evidence of Ms NN was that the Respondent informed her (and showed her text messages) that Ms AX was being threatened by the Applicant as she was her legal representative in relation to an investment property. This resulted in the Ms AX giving the red book for the property to the Applicant.[165] The Respondent’s sisters did not give evidence at the trial and their affidavits were not accepted into evidence. They could have corroborated the Respondents evidence regarding the alleged threats. 48 Mid- 2021 Applicant attends the home of Mr HH (Resp Father) The Applicant’s evidence was that he attended the home of the Respondent’s father to talk to the Respondent about property settlement — due to his financial hardship. The Applicant denied threating him.[166] The Respondent’s evidence was that the Applicant approached her father’s house on three occasions.[167] Mr HH’s evidence was that the Applicant presented at his house to speak to him about the division of property between the Applicant and Respondent. Mr HH said he told the Applicant he was wrong to threaten his daughter and that the Respondent did not want to see him. The Applicant became angry and filmed Mr HH before leaving the property. 49 Late 2021 Property damage The Applicant denied causing any damage to Town S.[168] The Respondent’s evidence was that the damage was done to the Town S property including gluing locks then rubbish was dumped on commercial property owned by Respondent as well as locks glued again.[169] No evidence was produced to show who was the culprit. 50 2021 Caveats The Applicant’s evidence was that whilst he was overseas, the Respondent sold the Town W properties and attempted to sell the Town S and Suburb U properties triggering him to lodge a caveat on the Town S and Suburb U properties.[170] The Respondent said that ‘In about mid-2021, Mr Khoi’s lawyers lodged caveats on the titles of the Town S Property and on my Commercial Property.’[171] The Respondent confirmed that she sold the Town W properties to Mr H.[172] [17] Applicant’s 5 May 2022 affidavit (n6) [6].
[18] Respondent’s affidavit (n10) [26].
[19] Applicant’s 5 May 2022 affidavit (n6) [10].
[20] Respondent affidavit (n10) [5].
[21] Applicant’s 5 May 2022 affidavit (n6) [7].
[22] Respondent’s affidavit (n10) [10].
[23] Affidavit of Mr HH, filed 11 May 2022 (‘Affidavit of Mr HH’).
[24] Applicant’s 5 May 2022 affidavit (n6) [7].
[25] Trial: Under cross-examination the Applicant said that he was employed by KK Pty Ltd in 2012 which was a company run by Mr AA and that he worked for X Pty Ltd.
[26] Trial: Under cross-examination.
[27] Trial: Under cross-examination.
[28] Affidavit of Mr LL, filed 13 May 2022 (‘Affidavit of Mr LL).
[29] Applicant’s 5 May 2022 affidavit (n6) [9].
[30] Ibid [9].
[31] Trial: Cross-examination. The Applicant said he saw her almost daily are this first re-meeting, and in the majority of time it was as the sports club but sometimes they went to a restaurant together.
[32] Respondent’s affidavit (n10) [28].
[33] Ibid [11].
[34] Ibid [75]; Trial: The Respondent in re-examination described the circumstances around her separation from Mr AA and says that Mr AA was in a relationship with another and they decided to separate. She respected his decision and did not tell her family the real reasons for the separation, that she wanted the children to respect their Father.
[35] Affidavit of Ms NN, filed 13 May 2023 (‘Affidavit of Ms NN’).
[36] Case outline of Mr Khoi, filed 18 May 2022 (‘Applicant’s case outline’).
[37] This sister is to be distinguished from the sister who he was involved in Court Proceedings.
[38] Applicant’s 5 May 2022 affidavit (n6) [19].
[39] Affidavit of Mr Khoi, filed 17 May 2022 [13] (‘Applicant’s 17 May 2022 Affidavit’).
[40] Ibid; Applicant’s 5 May 2022 affidavit (n6) [19].
[41] Applicant’s 17 May 2022 affidavit (n39) [13].
[42]Affidavit of Mr Khoi, filed 8 September 2021 [9] (‘Applicant’s 8 September 2021 affidavit’)
[43] Respondent’s affidavit (n10) [28].
[44] Ibid [33]. No evidence was received from Ms Z to substantiate or deny this. Trial: The Applicant says that Ms Z was living with him when the relationship with the Respondent commenced.
[45] Respondent’s affidavit (n10) [84].
[46] Case outline of Ms Khoi, filed 18 May 2022 [9] (‘Respondent’s case outline’).
[47] Exhibit R1: Advise by a Migration Agent; Exhibit R2: Sponsorship for partner to migrate to Australia.
[48] Applicant’s 5 May 2022 affidavit (n6).
[49] Trial: Cross-examination.
[50] Respondent affidavit (n10) [31].
[51] Exhibit R9: Reported email from the Applicant to TT Authority dated 2017 and stating ‘…my relationship with my partner “Ms Z, DOB 1995) has been ended approx. 10 months ago.”
[52] Applicant’s 5 May 2022 affidavit (n6) [16] – [18].
[53] Ibid Annexure Mr K-2: ASIC Current & Historical Company Extract: VV Pty Ltd registered and started in 2014 and de-registered in 2018. Mr B appointed as Director in 2014 until in 2018. Ms Khoi appointed as director and secretary in 2014. Address for Ms Khoi as Secretary and Director provided as P Street, Suburb Q Victoria. Address for Ms Khoi as previous member given as JJ Street Suburb U.
[54] Respondent’s affidavit (n10) [78].
[55] Trial: Cross-examination.
[56] Applicant’s 17 May 2022 affidavit (n39) [10], Annexure Mr Khoi 4: ASIC current and historical business name extract. Registered in 2014. Cancelled in 2017. Former address of JJ Street Suburb U. Business holder: VV Pty Ltd.
[57] Trial: Cross-examination.
[58] Applicant’s 5 May 2022 affidavit (n6) [36].
[59] Trial: Cross-examination; Applicant’s 5 May 2022 affidavit (n6) Annexure Mr Khoi-13: unsigned copy of Last Will and Testament of Mr B dated 2014, prepared by ZZ Law Firm.
[60] Trial: Cross-examination.
[61] Trial: Cross-examination.
[62] Respondent’s affidavit (n10) Annexure Ms Khoi-03; Trial: Cross-examination of Applicant: The Applicant was unable to say if he was in a relationship with the Respondent at this time.
[63] Respondent’s affidavit (n10) [7], Annexure Ms Khoi-01.
[64] Ibid [8].
[65] Ibid [62]. The Sister being Ms AD to be distinguished from his sister Ms EE who he purportedly lived with at Suburb Q.
[66] Applicant’s 17 May 2022 affidavit (n39) [3].
[67] Applicant’s 5 May 2022 affidavit (n6) [37].
[68] Presumably this is the property that was subject to the Court Proceedings. Whilst the Respondent provided evidence of the Court Decision which may have provided some clarity around what property this statement refers to, the decision of Almond J is inadmissible under s91 of the Evidence Act 1995 (Cth).
[69] Respondent’s affidavit (n10) [29].
[70] Trial: Cross-examination.
[71] Respondent affidavit (n10) [102]: The Respondent points to the lack of evidence to show that she contributed to legal fees of the Applicant’s Court Proceedings.
[72] At this point in the chronology, it appears that KK Pty Ltd and VV Pty Ltd (XX Group) were the only operating businesses.
[73] Applicant’s 5 May 2022 affidavit (n6) [49]. During cross-examination the Applicant asserts that he contributed $80,000 to the purchase of Town S that he had saved up whilst working for KK Pty Ltd and being paid in cash. Later he recounted this and said that the money was also made up of his own savings. The Applicant explained that he had kept the money concealed in the Suburb Q property.
[74] Applicant’s 5 May 2022 affidavit (n6) [20].
[75] Trial: Cross-examination
[76] Ibid.
[77] Respondent’s affidavit (n10) [10].
[78] Ibid Annexure Ms Khoi-08: Bill in name of Mr AA address R Street, Town S dated 2015; Annexure Ms Khoi‑09: Tax Invoice addressed to Mr AA of R Street, Town S, dated late 2016 and dated mid-2016.
[79] Affidavit of Mr HH (n23).
[80] Applicant’s 5 May 2022 affidavit (n6) [22].
[81] Respondent’s affidavit (n10) [13].
[82] Ibid [37].
[83] Affidavit of Ms J, filed 25 January 2023 (‘Affidavit of Ms J).
[84] Trial: Cross-examination.
[85] Respondent’s affidavit (n10) [14].
[86] Affidavit of Mr HH (n23).
[87] Applicant’s 5 May 2022 Affidavit (n6): Annexure Mr Khoi-20 – ASIC Current Company Extract for X Pty Ltd, dated mid-2021, provides the business was registered in late 2016 and started on same date. The business address of JJ Street, Suburb U. Directors being Ms Khoi and Mr LL, Secretary Ms Khoi – both appointed late 2016.
[88] Respondent’s affidavit (n10) [105] & [108]: The Mr Khoi-21 of the Applicant’s affidavit identifies the Respondent as the Directors of X Pty Ltd. The Applicant’s name is not present on the document.
[89] Affidavit of Mr LL (n28). Mr H also stated that he met the Applicant in 2017 when he was introduced by the Respondent as a friend from back when she first came to Australia.
[90] Trial: cross-examination. The Applicant said that the inspector was too busy to come to Court.
[91] Applicant’s 5 May 2022 affidavit (n6) [55].
[92] Trial: Cross-examination. There is, however, no evidence to support the Applicant’s claim. He explains this by saying the Respondent kept the receipts as well as that they were under the name of X Pty Ltd. And further any money paid by him to the Respondent toward the property was paid in cash.
[93] Applicant’s 5 May 2022 affidavit (n6): Annexure Mr K-23.
[94] Respondent’s affidavit (n10) [117].
[95] Ibid [119].
[96] Ibid [120].
[97] Affidavit of Mr AH, filed 13 May 2022 (‘Affidavit of Mr AH’).
[98] Applicant’s 17 May affidavit (n39) [4], Annexure Mr Khoi-1: Certificate of cover from AB Company, policy holder and main ensured being Ms Khoi. Mr Khoi nominated as an insured member and role as partner to main insured from early 2017.
[99] Applicant’s 5 May 2022 affidavit (n6) [24] – [25], Annexure Mr Khoi-3 letter from AB Company with Town S address.
[100] Ibid Annexure Mr Khoi-4: AJ Company Private Health insurance statement from 1 July 2017-30 June 2018, 1 July 2018 – 30 June 2019, 1 July 2019 to 30 June 2020 – has Ms Khoi nominated as other adult beneficiary of policy.
[101] Respondent’s affidavit (n10) [64].
[102] Ibid [89].
[103] Trial: Cross-examination.
[104] Affidavit of Mr Khoi, filed 23 February 2022 [6] (‘Applicant’s 23 February 2022 affidavit’).
[105] Respondent affidavit (n10) [73].
[106] Applicant’s 5 May 2022 affidavit (n6) [21].
[107] Ibid [51].
[108] Respondent affidavit (n10) [15].
[109] Ibid [15], Annexure Ms Khoi-13.
[110] Ibid [114].
[111] Applicant’s 5 May 2022 affidavit (n6) [4]. Annexure Mr Khoi-1 is a History Certificate of the change of name of Mr B dated 2017.
[112] Respondent’s affidavit (n10) [69].
[113] Trial: Cross-examination.
[114] Respondent’s affidavit (n10) [16].
[115] Ibid [20].
[116] Ibid [19].
[117] See paragraph 51 of these Reasons.
[118] Applicant’s 5 May 2022 affidavit (n6): Annexure Mr Khoi-6: AN Company, spectacle prescription dated late 2018 and invoices dated late 2021.
[119] Trial: Cross-examination.
[120] Trial: Cross-examination.
[121] Trial: Cross-examination.
[122] Respondent’s affidavit (n10) [16] – [17].
[123] Evidence of Mr HH.
[124] Respondent’s affidavit (n10) [22].
[125] Ibid [21], Ms Khoi-16: photo of extended family at Town S.
[126] Ibid: Ms Khoi-16.
[127] Applicant’s 5 May 2022 affidavit (n6) [26]: Annexure Mr Khoi-5. Sporting Licence, in name of Mr B, DOB 1975, address of R Street Town S, valid from 2018-2019.
[128] Respondent affidavit (n10) [91].
[129] Applicant’s 5 May 2022 affidavit (n6): Annexure Mr Khoi-16.
[130] Ibid: Annexure Mr Khoi-17
[131] Trial: Cross-examination.
[132] Applicant’s 5 May 2022 affidavit (n6) [60].
[133] Applicant’s 17 May 2022 affidavit (n39) [5].
[134] Respondent affidavit (n10) [22].
[135] Ibid [22].
[136] Paid for by refinancing the Town S property in 2018 with AO Bank.
[137] Applicant’s 5 May 2022 affidavit (n6) [30].
[138] Ibid [31].
[139] Respondent affidavit (n10) [39].
[140] Ibid [96] – [97]: The hotel handwritten notice which the Respondent says was likely fabricated by the Applicant.
[141] Affidavit of Ms NN (n35).
[142] Applicant’s 5 May 2022 affidavit (n6) [52], Annexure Mr Khoi-22 Invoices dated mid-2019 showing the Applicant received $15,000 from Mr HH and deposits into NAB account reading ‘rent’. [52] This was a ‘holding deposit’.
[143] Respondent’s affidavit (n10) [23], Annexure Ms Khoi -19: Contract for Sale for real estate, purchaser Mr AH and vendor Ms Khoi, signed late 2019.
[144] Ibid [24].
[145] Affidavit of Mr AH (n97).
[146] Trial: Cross-examination.
[147] Applicant’s 5 May 2022 affidavit (n6) [58] – [59].
[148] Respondent affidavit (n10) [24], Annexure Ms Khoi-20: Contract of Sale of real estate, Vendor AS Pty Ltd, purchaser Ms Khoi, signed 2019 for $245,000.
[149] Respondent’s affidavit (n10) [121].
[150] Ibid [117].
[151] Affidavit of Mr AH (n97) [7].
[152] Applicant’s 5 May 2022 affidavit (n6) [52] – [53], Annexure Mr Khoi-22.
[153] Applicant’s 17 May 2022 affidavit (n39) [5]: Annexure Mr Khoi-2. Exhibit A1.
[154] Trial: Cross-examination.
[155] Ibid.
[156] Ibid.
[157] Respondent affidavit (n10) Annexure Ms Khoi-35 – Agreement between Ms Khoi & Mr Khoi for sale of Lot …, AQ Village, Town AR, City AY, Country WW for … Country WW currency.
[158] Applicant’s 5 May 2022 affidavit (n6) [68]; Applicant’s 17 May 2022 affidavit (n39) [21], Annexure Mr Khoi-9.
[159] Respondent’s case outline (n46) [21].
[160] Respondent affidavit (n10) [43].
[161] Applicant’s 5 May 2022 affidavit (n6) [72], Annexure Mr Khoi-29.
[162] Respondent’s affidavit (n10) [128].
[163] Applicant’s 17 May 2022 affidavit (n39) [8].
[164] Respondent affidavit (n10) [41].
[165] Affidavit of Ms NN (n35).
[166] Applicant’s 17 May 2022 affidavit (n39) [6].
[167] Respondent’s affidavit (n10) [45].
[168] Applicant’s 17 May 2022 affidavit (n39) [7].
[169] Respondent’s affidavit (n10) [49] – [50].
[170] Applicant’s 5 May 2022 affidavit (n6) [61] – [64].
[171] Respondent’s affidavit (n10) [47].
[172] Ibid [119].
Evidence
All the parties' witnesses, and the parties' themselves, required the assistance of Country WW interpreters for the entirety of the hearing — with two interpreters present throughout the proceedings. An interpreter was also engaged to decipher writing tattooed onto the Respondent’s body and provide evidence as to her observations.
The Applicant’s evidence
The Applicant relied upon his amended application filed 23 February 2022, his case outline filed 18 May 2022, and his affidavits filed 5 May 2022, 17 May 2022, and 18 November 2022. He also relied upon affidavits of Ms F, Mr G, and Ms J — all filed 11 February 2022 — and Exhibits A1-A3.[173] I note that the Applicants affidavits of 8 September 2021 and 23 February 2022 were tendered by the Respondent.[174]
[173] Exhibits: A1 - a screen shot of … Credit Card, A2 - NAB Bank Statement, A3 – copy of an advertisement of land.
[174] Exhibits R7 and R8.
The Applicant was cross examined over five days. At times he was an unimpressive witness. He failed to answer questions directly, leaving an impression of evasiveness. At times his evidence was contradicted by more objective material. An example was when he was asked questions about a series of text messages sent to the Respondent’s sister Ms AX.[175] The messages were sent in 2020 and they contained threats of violence and property damage.
[175] Trial: Cross-examination.
A translated copy of these messages was provided as an Annexure to the affidavit of Mr HH.[176] The first message is extracted below:
[Ms Khoi] said that you kept, and you say you don’t know?
Don’t do that, the conscience of a Christian should not do that
I will get someone to smash your father’s house, then there will be someone to return my property
[176] Affidavit of Mr HH (n23) HH-02.
The Response to these messages came next:
I have said enough
You just take legal action and show the evidence
And let it be dealt with by law
To which the next threating message said:
So please do not waste time to blame each other
You think I need to take legal action, when my property is in someone else’s name, let me teach your family a lesson
The next text messages stated:
You are keeping the red book to blackmail me, aren’t you?
Then just keep it until I get you, and it will be too late even if you prostrate yourself before me, son of a bitch, know where I live, then call the gangsters to come over, I will welcome.
The Applicant denied that he sent the messages, stating that the telephone number from which they were sent was not his. He was then shown a document being an agreement between him and the Respondent relating to the sale of land in Country WW. That document recorded his name and other details as:
[Mr Khoi]
Nationality: Australia
Australian passport number: […]
Date of birth: 1975
Telephone: […]
The telephone number was the same as that used to send the threatening text messages. He then tried to explain that the phone was not his, but he had borrowed it from a female friend named Ms AU whose phone he said he used for a short period of time. Ms AU was not called as a witness.
I do not accept the Applicant’s denial that he sent the text messages to the Respondent’s sister. That said, and as will be discussed later in these Reasons, the Respondent’s sisters did not provide evidence in the proceedings, which might have assisted the Court.
I was similarly unimpressed with his evidence regarding a Will that was drawn for him in 2014.[177] The Will was unsigned and dated 2014. In that Will he referred to the Respondent as his ‘good friend’ on three occasions and names her as a trustee and beneficiary. When asked as to whether he instructed his lawyer to refer to the Respondent as his ‘good friend’ in the document, his answers were evasive. He suggested that his lawyer did not ask him the status of his relationships with the Respondent, notwithstanding a bequest to her in the Will. Eventually he conceded that he did instruct his lawyer to refer to the Respondent as his ‘good friend’ in his Will which drew consistency with what he had stated in his affidavit:
15.After I commenced legal action, I learnt about exposure to risks of asset loss associated with litigation, [Ms Khoi] and I began to "distant" to our relationship by referring to each other as "good friends", we separated our business/finance arrangements, and we agreed that I would never own any asset of value under my name. This was to protect any asset we may acquire from claims associated with my legal proceedings.[178]
[177] Applicant’s 5 May 2022 affidavit (n6) Annexure Mr Khoi-13.
[178] Ibid [15].
The Applicant’s evidence set out in his various affidavits was also often contradictory. For example, in his 5 May 2022 affidavit at paragraph 19 and 17 May 2022 affidavit at paragraph 13, he said that the relationship started when the Respondent moved into the Suburb Q property with him in 2013, and they lived there for more than a year, with the Respondent staying about 5 nights per week. Earlier, in his 8 September 2021 [9] affidavit he stated that the parties commenced living together with the Respondent’s two sons in 2014 at Suburb U. The Applicant — in further contradiction to his affidavits — stated under cross-examination that the relationship commenced about one week after re-meeting the Respondent in 2012. Later, when asked again, he said it started in 2013 with the parties living together from 2014 and commencing their de facto relationship in 2015.
Other aspects of his evidence that was inconsistent included:
·that he did not like his photo being taken — being an explanation as to why there were no photos of him and the Applicant — when there were many photos of him produced in evidence;[179]
·that he did not go inside the Respondent’s parents’ home because he did not want to upset them given his relationship with the Respondent — when he had apparently been living with her and her children at two addresses for a long period of time;[180]
·that he did not take the Respondent’s children to school (evidence which he also contradicts),[181] nor attend the Respondent’s mother’s funeral, to not upset Mr AA because of his relationship with the Respondent[182] — when he claimed that he had been living with the Respondent for years with Mr AA’s children and that Mr AA had purchased property and engaged in businesses with him;[183]
·that he kept his intimate relationship with the Respondent secret from the children — in circumstances where he was apparently living with them and the Respondent in two different houses for years, and that he helped care for the boys, including taking them to school in the morning;[184]
·that he did not visit the Respondent’s sister in Country WW because he did not have a good relationship with her — when elsewhere in his evidence he talked of having a friendly relationship with her.[185]
[179] Respondent’s affidavit (n10) Annexure Ms Khoi-23: Photos of the Applicant with Ms Z and friends; Annexure Ms Khoi-24: Photos of Applicant with Ms Z; Annexure Ms Khoi-25: Photos of Applicant, Ms Z and friends; Annexure Ms Khoi-26: Applicant and Ms Z; Affidavit of Ms F, filed 11 February 2022 Annexure Ms F-1 (‘Ms F’s affidavit’).
[180] Applicant’s 17 May 2022 affidavit (n39) ‘…I admit I visited Ms Khoi’s dad at his home several times to request him to talk with Ms Khoi about our property settlement because I was in financial hardship when I returned to Melbourne.’; Trial: Cross-examination: The Applicant said that he was aware of her parents’ house and went there 10 times before travelling to Country WW, but that he did not enter as he and the Respondent’s parents did not get along.
[181] Applicant’s 5 May 2022 affidavit (n6) [69]; Applicant’s 23 February 2022 affidavit (n104) [33]: the Applicant asserted he provided care and support to the Respondent’s children when they lived at Suburb Q and moved into Town S. When living at Town S, he would drive them to school (AV School) when they could not take the school bus and he provided daily care to them. Trial: Cross-examination: The Applicant said that whilst living at Suburb Q and Suburb U properties he was unaware which school the children went, and he did not pick them up nor take them to school.
[182] Trial: He explained that he did not attend the Respondent’s mother’s funeral in 2018 because their relationship was a secret.
[183] Applicant’s 5 May 2022 affidavit (n6) [49]: The Applicant asserted, Mr AA, the Respondent and himself decided to purchase Town S together, being purchased in equal shares; [42]: The Applicant, Respondent and Mr AA worked together in two businesses called ‘KK Pty Ltd’ and ‘X Pty Ltd’.
[184] Applicants’ affidavit of 23 February 2022 (n104) [8]: ‘Our relationship commenced in 2013 when the respondent and I moved into a rental property at P Street, Suburb Q (the Suburb Q property) with Mr BB and Mr CC.’; Applicant’s 8 September 2021 affidavit (n42) [8]: ‘In about 2014 I commenced cohabitation with Ms Khoi and her two sons Mr CC and Mr BB when we all moved in to live together in a rental property in Suburb U. Ms Khoi’s children lived with us for several months whilst Mr AA was looking for a new property to move into and once Mr AA found a suitable home Mr CC and Mr BB moved to live with their father permanently…’; Trial: The Applicant explained that their relationship was kept secret from others including the Respondent’s Husband and children. He also said that he would play sports with them. Yet in his 5 May 2022 affidavit (n6) [22], he says that the parties would have friends and family come visit them and sometimes stay for short durations.
[185] Applicant’s 17 May 2022 affidavit (n39) [8]: the Applicant stated ‘I met Ms AX for the first time in 2018 when she visited Melbourne to attend her mother’s funeral. I had a good relationship with her and would bring gifts to her and her family in Country WW whenever I travelled there. In 2020, whilst I was stuck in Country WW during the pandemic, I visited Ms AX’s home several times to plea with her to persuade Ms Khoi to authorise sale of the land because I had exhausted money for basic living expenses.’
I treat the Applicant’s evidence with caution and will look for corroborative evidence from the tendered documents and other witnesses when determining the matters that are in dispute.
Witnesses for the Applicant
Ms F – affidavit signed (but not witnessed) 17 November 2021 and filed 11 February 2022
Ms F is a worker for a health care company. Her evidence was that she met the Applicant in 2018 when he was engaged to build an outbuilding at her home, after viewing his ad in a magazine. They became friends and the Applicant later introduced the Respondent to her as his ‘wife’.
In 2018, she visited the parties at the Town S property to celebrate the Applicant’s birthday, with two others.[186] A photo of Ms F and the Applicant, purportedly taken at the birthday, was annexed to her affidavit.[187] She believed the Applicant and Respondent were in a relationship together because they stood close by each other and the Respondent leaned on him, teased him with endearing names, and touched his face. The Respondent also prepared Country WW food, which is known to be the role of a wife in Country WW custom. Ms F said that having observed the parties during the past three years at social gatherings, she had ‘no doubt’ they were ‘husband and wife’.
[186] Trial: in Evidence in Chief, she corrected her affidavit to confirm that she and 2 others attended their home – not 10 people as stated in her affidavit.
[187] The photo is labelled ‘Town S 2018 2.40pm.’
Under cross-examination Ms F said that she first met the Respondent when she came to her house to purchase a kitchen appliance. She conceded, contrary to the impression given when reading her affidavit, that she only spent time physically with the Respondent on two occasions (as opposed to various occasions at social gatherings as she claimed in her affidavit), but she also spoke to her on the telephone (three or four times). She also invited the Respondent to look at products.
As to the visit on the Applicant’s birthday, she said the Respondent was not in the photo as the Respondent did not like her photo being taken. She also accepted that she had not witnessed the parties' kiss each other.
I was left with the impression that Ms F did not spend as much time with the Applicant and Respondent (together) as she originally intimated in her affidavit. Her concessions watered down the impact of her evidence. At best her evidence was that in 2018 she noticed that the Applicant and Respondent had an affectionate relationship. I give her evidence minor weight.
Mr AP – affidavit filed 11 February 2022
Mr AP is the Husband of Ms J — who also gave evidence for the Applicant. Mr AP stated that he met the Applicant in 2016, and few months later the Respondent, when she was introduced as the Applicant’s wife.[188] In 2017 Mr AP and his family visited the Applicant, the Respondent, and the Respondent’s children, at the Town S property for the first time. The visits to the Town S property occurred on more than 10 occasions and 5-10 occasions overnight.[189]
[188] Trial: In his affidavit he used the term ‘partner’ but corrected this in Evidence in Chief.
[189] Affidavit of Mr AP, filed 11 February 2022 [4] – [5]; Trial: Cross-examination.
Mr AP said that in or around 2018, he stayed at the Town S property for several days to repair an outbuilding. He described observing the parties and the Respondent’s children interacting as a family, with the Applicant and Respondent sharing a bedroom and performing domestic chores and looking after the boys.
Mr AP adhered to his evidence under cross-examination and added some details. He confirmed that the Town S property was a 3-bedroom home and that he slept in one of the bedrooms when he visited. Although he was a full-time carer for his wife at that time, his children cared for her when he visited Town S, if she did not accompany him. He said that he helped cut the grass at the property and brought a gift of groceries on an occasion. He said that he witnessed the Applicant and Respondent ‘hugging, kissing, joking’.
Mr AP gave his evidence clearly and directly. I give his evidence some weight, particularly in relation to his observations of the parties having an affectionate relationship in 2017/18. Although he opines that the parties and the children ‘behaved like a family,’[190] the basis for that opinion is largely confined to his observations on occasions through 2017 and 2018.
[190] Affidavit of Ms J (n83) [6].
Ms J – affidavit filed 25 January 2023
Ms J is the wife of Mr AP. Ms J confirmed her husband’s accounts of visiting the Applicant and Respondent at the Town S property on more than ten occasions. Ms J added that in 2016 she met the Respondent at a house in Suburb Q belonging to Mr AH.[191]
[191] Trial: Cross-examination.
Ms J believed the Applicant and Respondent to be in a genuine ‘husband and wife’[192] relationship. She gave examples of observations supporting her belief, such as the Respondent asking her to buy ingredients from store when she came to visit Town S, to cook the Applicant his favourite meals. Ms J also said that sometimes she and her Husband would give the Respondent and her sons a lift to Suburb U — to her parents’ house — during which time the Respondent would speak of the Applicant with love and affection.
[192] Affidavit of Ms J (n83) [3].
During examination in Evidence in Chief, Ms J said that she visited the couple at the Town S property ten times — somewhat contradicting the evidence of Mr AP, who said that she came to Town S only on some of the occasions he was there.
Under cross-examination, Ms J conceded that she did not attend any birthday parties' for either party or attend the Respondent’s mother’s funeral.[193] In fact, the Respondent did not talk to her about her mother’s death with her. This left the impression that Ms J did not know the Respondent as well as she intimated. Ms J may have witnessed an affectionate relationship between the Applicant and Respondent — perhaps even an intimate one — but her sporadic observations of the parties — primarily in 2017/18 — did not fully support her conclusion that they lived together on a genuine domestic basis. Nevertheless, her evidence carries some weight.
[193] The Respondent’s Mother died in 2018.
The Respondent’s Evidence
The Respondent relied upon her Amended Response filed 7 March 2022, her case outline filed 18 May 2022, and her affidavit filed 13 May 2022. She also relied upon several affidavits filed 13 May 2022 — Mr HH, Mr LL, Mr AH, and Ms NN.[194] The Respondent also tendered several documents becoming Exhibits R1 – R13.[195]
[194] See paragraph 5 of these Reasons.
[195] Exhibits R1 (Advice by a migration agent), R2 (Sponsorship for partner to migrate to Australia), R3 Administrative Appeals Tribunal Decision), R4 (Certificate of Marriage), R5 (Airline tickets and receipts), R6 A series of photos at a wedding ceremony in Country WW), R7 Affidavit of the Applicant filed 23 February 2022), Affidavit of the Applicant filed 8 September 2021, R9 (Reported email from the Applicant), R10 (Certificate and notification regarding the migration review tribunals), R11 (Department of Immigration and Border Protection Decision Record), R12 Passport photos), R13 (USB showing video). It is to be noting that: Exhibit R3 is not admissible under s91 of the Evidence Act 1995 (Cth) which states that: (1) Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding. (2) Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose.
The Respondent largely answered questions put to her in cross-examination carefully and directly. At time she became emotional, particularly when questioned about the end of her relationship with Mr AA. The Respondent’s evidence was however, at times, contradicted by more objective evidence. There was a level of evasiveness to some of her answers under cross-examination, particularly in relation to the purchase and sale of land in Country WW.[196] Her failure to call Mr AA as a witness also left many questions that could have been easily answered. As with the Applicant, I will look primarily to the documentary and other corroborative evidence when determining factual issues in dispute.
Witnesses for the Respondent
[196] For example, when asked about how much the land in Country WW sold for, she was hesitant to concede that the amount she received was equal to the Applicant, when her evidence had been that she had to sell the land for a lower price.
Mr HH– affidavit filed 11 May 2022
Mr HH is the father of the Respondent and was 86 at time of swearing his affidavit. He gave his evidence from his sick bed by MS Teams.
Mr HH stated that he has lived at JJ Street, Suburb U since 1994, and that the Respondent also lived there until marrying Mr AA in 2000. In 2008, the Respondent, Mr AA and her two sons moved in with Mr HH and his late Wife at their home at JJ Street. They remained there until 2015, when they went to live at the newly purchased Town S property. Towards the end of 2016, the Respondent and Mr AA separated, with Mr AA moving back to Melbourne, and the Respondent and children remaining at the Town S property. In 2018, Mr HH’s wife died, and since that time the Respondent has primarily lived with him.
Mr HH said that the Respondent at no time disclosed, after her separation from Mr AA, that she had formed another relationship. He stated that he had not heard of the Applicant until 2020, when one of his daughters — Ms AX — alleged that she was threatened by him regarding a real estate investment in Country WW held by the Respondent. Mr HH understood that the Respondent had to sell the property to the Applicant to protect her family. He annexed emails to his affidavit purporting to be sent by the Applicant to his daughter.[197]
[197] The original messages (in one instance showing a phone number for ‘Mr Khoi’) are annexure HH-01 and the English translations are annexed with the same annexure number to the affidavit.
In mid-2021, the Applicant presented at Mr HH’s house on three occasions, wanting to speak with him about the division of property between the Applicant and Respondent. Mr HH said he told the Applicant he was wrong to threaten his daughter and that the Respondent did not want to see him. The Applicant became angry and filmed Mr HH before leaving the property.
Under cross-examination, he confirmed that the Respondent, Mr AA, and her children moved to Town S in or about 2015. He did not accept that it was the Applicant and not Mr AA who moved with her and the children to Town S at that time. He also strongly denied that the Respondent lived with the Applicant at Suburb Q, before moving to Town S.
Mr HH denied that he had met the Applicant before he turned up at his home on three occasions in 2021. Curiously he said that his daughter Ms AX gave the Applicant his address — which is hard to understand given the alleged threats contained in the text messages:
[Ms Khoi] said that you kept, and you say you don’t know?
Don’t do that, the conscience of a Christian should not do that
I will get someone to smash your Father's house, then there will be someone to return my property.[198]
[198] Annexure HH-01.
Mr HH did concede that that he did not raise the emails, the selling of the Country WW property, nor the context of the farm video with the Applicant during any of those visits. That said, the Applicant did not enter his home. He simply accepted what he had been told about these things by his daughter.
Finally, Mr HH confirmed that the Respondent did live with him after his wife died:
she came back and forth for a while and then moved to stay with me so kids can go school end 2018.[199]
[199] Trial: Cross-examination of Mr LL. It is worth noting that the JJ Street address was used by the Respondent as evidenced at paragraph 123 of these Reasons and the Applicant also had his ‘change of name’ correspondence sent to this address.
This evidence was consistent with the photograph of Mr BB with his AM School uniform as annexed to the Respondent’s affidavit.[200] The Respondent also consistently used JJ Street as her address after 2018.[201]
[200] Respondent’s affidavit (n10) Annexure Ms Khoi-15.
[201] Ibid Annexure Ms Khoi-35; Applicant’s 5 May 2022 affidavit (n6) Annexure Ms Khoi-20.
Mr HH answered questions directly and it was clear that he wanted to be protective and supportive of his daughter. Some of his evidence repeated what others had told him and cannot be given any weight. It also was apparent that he did not have full knowledge of what was occurring in his daughter’s life during the time that she was involved with the Applicant — in her case as a friend. His evidence in other aspects was corroborative of the Respondent’s position. I give his evidence some weight, noting that he is closely aligned to his daughter.
Mr LL – affidavit filed 13 May 2022
Mr LL’s evidence was that from about 2010 – 2016, he and Mr AA worked together in the sales industry — including as joint owners of KK Pty Ltd. At that time, the Respondent helped with the paperwork for KK Pty Ltd and was a business contact for Mr LL. When the Respondent and Mr AA, Mr LL removed his name as an office holder of KK Pty Ltd. The Respondent and Mr LL then started X Pty Ltd. The Respondent was responsible for the business paperwork whilst he met clients and undertook work. He stated that he met the Applicant in 2017 who was introduced by the Respondent as her ‘friend’. Mr LL said that the Applicant at no stage had any involvement in the running of X Pty Ltd.
Under cross-examination, Mr LL was shown a newspaper advertisement for KK Pty Ltd,[202] which had the Applicant’s name and phone number printed on it as a point of contact. Notwithstanding the documentary evidence, Mr LL was unwilling to concede that the Applicant worked for KK Pty Ltd, explaining that many people worked for the company and the Applicant did not register with him as one of those people.
[202] Exhibit A3.
He was then questioned about X Pty Ltd, and challenged about his assertion that he was the company’s sole director. He was shown a company extract evidencing that both he and the Respondent were Directors, and that the Respondent was the company secretary. It was then suggested that the Applicant and Respondent had set up the company and that he was only involved because he held trade qualifications — an assertion he denied. He did however reluctantly[203] accept that the Applicant could have been involved with X Pty Ltd, but that he did not notice because he was too busy. He also agreed that it was possible that he did not fully notice the nature of the relationship between the Applicant and Respondent.[204]
[203] After a number of questions, he replied that it could be possible.
[204] On this proposition he replied ‘maybe’.
Mr LL presented his evidence in a relaxed, calm, and direct manner, but ultimately, I was left with the impression that he did not have full knowledge of the day-to-day operations of KK Pty Ltd nor X Pty Ltd — with most of the day-to-day operations being left to the Respondent and Mr AA. His evidence did not greatly assist with issues to be determined in this case.
Mr AH – Affidavit filed 13 May 2022
Mr AH is a transport worker who works in Suburb Q and Town S. Mr AH stated that he met the Respondent approximately ten years ago at a business in Suburb Q. The Respondent assisted him with paperwork — he was unable to speak English — and they remain good friends.
He stated that in 2017, Mr AH’s father (Mr AG) and the Respondent purchased the Town W properties for $320,000, each holding a 50% share. The purchase was made with jointly borrowed funds of $208,000 from a bank. The properties were sold in early 2021 for $480,000.
In or around late 2019, Mr AH said that he purchased a 50% share of the Town S property for $612,500. He entered an agreement with the Respondent that he would pay her $412,500 in advance, and the balance over three years — at a rate of $750 per month.[205] Mr AH did not move into the Town S property. In or around mid-2021, Mr AH and the Respondent decided to sell the Town S property, agreeing that the Respondent would pay him $412,500 plus $100,000 interest from the sale proceeds.
[205] I note that $750 per month over 3 years is $27,000 not $200,000.
Mr AH said that he met the Applicant at a party held by the Respondent. At the party Mr AH and the Applicant discussed raising livestock and the possibility of helping Mr AH’s brother with a farm in Country WW. The Applicant also informed Mr AH that the Respondent had helped him a lot with paperwork and that he was grateful. Mr AH and the Applicant began a friendship, and they would have lunch together and speak on the phone.
In 2019 Mr AH provided $15,000 to the Applicant to invest a farm business in City AY, Country WW, where the Applicant intended to live. He explained:
I transferred the money to [Mr Khoi]'s NAB account three times [in mid-2019]. [Mr Khoi] said that when I transferred the money, I needed to fill in the description as 'Rent' because he did not want those transactions have anything to do with Centrelink or the Tax Office.[206]
[206] Affidavit of Mr AH (n97) [7].
The business did not eventuate, and the relationship later soured because Mr AH was not repaid the $15,000 he invested with the Applicant. Mr AH also alleged, that in mid-2019, the Applicant forged two tax invoices[207] (‘the invoices’) which were designed to show that the $15,000 Mr AH paid the Applicant was a ‘holding deposit’ for the Town S property and not an investment in a farm in Country WW:
I wish to report that [Mr Khoi] forged two tax invoices [in mid] 2019 with a total amount of $15,000 that relates to [Ms Khoi’s Town S] property. I wish to say that these two papers are fake because I had never seen them before until [Ms Khoi] showed me recently from the Court. l want everyone to know one very important detail that shows the fraud [Mr Khoi] is doing, that is my phone number […], which [Mr Khoi] filled in the two tax invoices, was wrong because I had not used this number at that time. At that time I was still using the number […], which I had since I first came to Australia. To this day I still have this phone number. As for the phone number […], I just started using it in 2021 for business. I prepay $300 a year for the phone number […] to the telecommunications company [AZ Company]. In 2022, I continued to prepay $300 to [AZ Company].[208]
[207] These are annexed as Mr Khoi-22 to Applicant’s 5 May 2022 affidavit (n6).
[208] Affidavit of Mr AH (n97) [12].
Mr AH was cross-examined, giving his evidence via Ms Teams from his vehicle. He maintained that he knew that the tax invoices for the $15,000 amount were fakes because he did not have use of the phone number …8 (‘the …8 number’) written on the invoices until 2021 — two years after he purchased his interest in Town S. He said that the receipts showing the activation of the …8 number proved his claim.
It was put to him that the documents annexed to his affidavit showing the activation of the …8 number in 2021 was a renewal of a number that he had in 2019. He denied this and remained adamant that he did not own the …8 number written on the invoices until he started his business in 2021. As such, the invoices must be fake.
Photographs of documents showing the activation and use of the …0 (‘the …0 number’) and the …8 number were annexed to his affidavit:[209]
·Photo 1 showed that he held the …0 number in early 2013;
·Photo 2 showed that he held the …0 number, but the date is not revealed;
·Photo 3 showed the activation of a non-described (but I infer the …8 number) in early 2021;
·Photo 4 showed the activation of the …8 number in early 2022;
·Photo 5 confirmed that the transaction occurred in early 2022.
[209] Ibid Annexure AH-03.
The last two photos evidenced a re-activation of the …8 number, which Mr AH claimed he obtained in 2021 — perhaps corroborated by photo 3. It is possible, however, that the 2021 receipt (photo 3) is just a re-activation of the …8 number. It is possible that the last three photos simply evidence a re-activation of the …8 number that was obtained many years prior — as put to Mr AH under cross-examination.
I am not satisfied that the Country WW joint venture evidenced a commitment of the parties to a shared life. Rather, it evidenced a commercial joint venture.
The Will the Respondent executed in 2019 suggested, at first glance, a commitment to a shared life. The Will was signed in 2019 but revoked in late 2020. In the intervening period, the parties travelled to Country WW and the Respondent purchased land. The Will in its construction prioritised the Respondent’s children with her superannuation and life insurance assets. What other assets the Applicant had that might comprise the balance of her estate remained unknown. It may have just been the Country WW land — with the Will aiming to protect that joint venture just as the Applicant sought to protect any winnings from his litigation in his 2014 draft Will. This is, however, speculation.
Conclusion regarding the degree of mutual commitment to a shared life
Although there was evidence that the parties had some type of deeper relationship after 2017 and particularly in 2018, and a business relationship in relation to the Country WW land, there was insufficient evidence to establish that from 2013-2021 the parties were committed to a shared life. There was a period after their marriages ended in late 2016, when they may have become close. In 2019, Respondent signed made the Applicant a beneficiary of her Will, but whether much of her wealth was held in her superannuation and life insurance was unknown. Whatever the nature of their relationship at that time, she revoked her Will in late 2020.
The Applicant failed to establish a deep connection with the Respondent for the eight years he claimed that the parties shared a life. His position was undermined by the evidence that he did not attend the Respondent’s mother’s funeral, was unaware of her birthday, and did not appear to attend the family gathering at Town S. Whilst not conclusive, these were occasions where it would be expected that the Applicant would be in the Respondent’s company and be matters of which he would have knowledge. These matters together with his representations to Centrelink, and my findings regarding the parties living arrangements and ownership of property, lead me to conclude that the parties did not have a mutual commitment to a shared life prior to 2017.
After their marriages ended, they likely became closer and probably intimate. The Respondent and her children moved to Suburb U, and she sold and purchased several properties. They had a joint venture in developing land in Country WW. That venture unfortunately ended acrimoniously. I am not satisfied that a closer relationship developed in those later years to the point where they each showed commitment to a shared life. This conclusion was confirmed by the parties’ living arrangements, the terms of the first agreement and the Applicant’s continued representations to Centrelink.
Whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship (s 4AA(2)(g))
The Relationship was not registered.
The care and support of children (s 4AA(2)(h))
The Applicant initially asserted that he provided care and support to the Respondent’s two teenage sons such as driving them to school:
During the relationship, I provided care and support to [Ms Khoi]’s sons from when we were living at rental property in [Suburb Q] until we moved to the [Town S] property. Whilst living at the [Town S] I would drive the boys to and from school, they had attended [AV School, Town W], whenever they could not catch the school bus and provided daily care to them.[452]
[452] Applicant’s 5 May 2022 affidavit (n6) [69]; Applicant’s 23 February 2022 affidavit (n104) [33].
Under cross-examination, however, and in complete contradiction of the above statement, he said that whilst living at the Suburb Q and Town S properties, he was unaware of which school the children attended as he did not take them or pick them up. He said that the Respondent did not want him to appear to be the children’s father or upset Mr AA.[453] Later, during cross-examination, the Applicant said that he drove the children to AV School and another school, but he could not recall the name.
[453] Trial: Cross-examination.
The Respondent denied that the Applicant ever drove her sons to school and maintained her position that the parties did not reside together, and the Applicant was not involved in her children’s lives.[454]
[454] The Respondent’s 19-year-old son was not called as a witness which she says is because she would rather he not be involved in the Family Court.
Conclusion regarding the care and support of children
The Applicant’s evidence that he was concerned about Mr AA being upset if he took the children to or from school does not gel with his other evidence. His clear and unequivocal claim was that the Respondent and her children lived with him at the Suburb Q property and for five years at the Town S property. Why would he be worried about the impression that Mr AA might make of him picking up the children to take them to school, in circumstances where he has been living with his children for several years? Mr AA even stayed with them at Town S in one of his accounts. His evidence made little sense and required the Court to accept that somehow, he kept secret from Mr AA that he was living with his children and the Respondent at two different properties — including Town S — which Mr AA originally owned and occasionally occupied.[455] He also claimed at one stage that he tried to keep his relationship with the Respondent secret from the children. It is not possible to accept such evidence in the face of his other evidence that the Respondent (as his de facto partner) and her children lived with him, at, minimum, two addresses, for several years.
[455] Trial: Cross-examination.
I am not satisfied that the Applicant and Respondent ever lived together or that he had any role in caring or supporting the Respondent’s children.
The reputation and public aspects of the relationship (s 4AA(2)(i))
The Applicant stated, ‘whilst living at the Town S property, our families and friends came to visit us and sometimes they would stay for short durations.’[456] The Applicant’s witnesses gave evidence that they had attended the Town S property and saw the parties together. Under cross-examination, the Applicant spoke of he and the Respondent keeping the relationship secret from others including Mr AA and the children.[457] This was said, when he had elsewhere claimed that he purchased Town S with Mr AA,[458] that he, Mr AA, and the Respondent operated businesses together, that the Respondent and the children lived at Suburb Q and Town S for years, and that he assisted the Respondent with the day to day care of the children.[459] The Applicant called no other witnesses, and crucially did not call Ms EE, to testify as to the public presentation of the purported relationship.
[456] Applicant’s 5 May 2022 affidavit (n6) [22].
[457] He explained that he did attend the Respondent’s mother’s funeral in 2018 because their relationship was a secret.
[458] Applicant’s 5 May 2022 affidavit (n6) [49]: The Applicant asserted that, Mr AA, the Respondent and himself decided to purchase Town S together, being purchased in equal shares; [42]: The Applicant, Respondent and Mr AA worked together in two businesses called ‘KK Pty Ltd’ and ‘X Pty Ltd Group’.
[459] Ibid [69]; Applicant’s 23 February 2022 affidavit (n104) [33].
The Respondent stated that her relationship with the Applicant was no more than friendship, as evidenced by them calling each other ‘good friend’ and ‘friend ‘in the Applicant’s 2014 Will and hers from 2019.[460] She said that her family were unaware of who the Applicant was until he allegedly threatened them in 2020. The Respondent denied knowing the Applicant’s witnesses Mr G, Ms J or Ms F, who claimed they were entertained by the Applicant and Respondent in 2017 and 2018 at Town S or that she had been introduced to them as his wife. Conversely, she said that Mr AA and her entertained people at the Town S property with the Applicant attending on several occasions.[461] The Respondent explained that after her divorce, she and her children often travelled between Melbourne and Town S but did not often stay at the Town S property. When they were not there, friends could use the house and access a key from a key safe kept on the property. The Respondent asserted that the Applicant had access to the key and would have attended less than five times.[462]
[460] Respondent’s case outline (n46) [27], [29].
[461] Trial: Cross-examination. Approximately 10 times between the years of 2015 – 2017.
[462] Trial: Cross-examination.
Conclusion regarding the reputation and public aspects of the relationship
The Applicant called three witnesses who gave evidence that they believed the parties to be in a relationship. Their evidence was confined to the period 2016 to 2018 and any observations of them at Town S were largely confined to the years 2017 and 2018. They all claimed that the Applicant referred to the Respondent as ‘his wife’ — which the Respondent denied.[463] The parties were not married, so such a description — if made — was inaccurate. If the term was used it may have been said as a joke, or a term of endearment. The context in which the term was allegedly used was not explored. There was no evidence that the Respondent used any term like ‘husband’ or ‘partner’ to describe the Applicant. The term, if used, certainly contradicted the Applicant’s representations to Centrelink.
[463] Trial: The Respondent denied ever meeting the witnesses called by the Applicant.
It is to be remembered that the Applicant claimed that the parties were in a relationship from 2013 to 2021 — living at two or perhaps three addresses throughout that period. He called no witnesses to establish the public nature of their relationship in those earlier years. The Applicant’s claim that there was an element of secrecy to their relationship conflicted with other evidence, including his witnesses Mr G, Ms J and Ms F, who gave no hint that their relationship was being hidden from them nor the Respondent’s children. Again, the failure of the Applicant to call Ms EE left a considerable lacuna in the evidence.
I am not satisfied that that there was a public aspect to the parties’ alleged relationship for the eight years of its alleged duration. At best, the Applicant established a closeness and perhaps intimacy between the parties as observed by the Applicant’s witnesses who saw them together on occasions from 2016 until 2018. There was no evidence from any person who saw the parties on a regular basis in those years, or at other time between 2013-2021, who could confirm the public nature of their purported relationship.
Any other matters as may seem appropriate to the court in the circumstances of the case (s 4AA(4))
Centrelink
The Applicant agreed that from 2014 until 2021, he represented to Centrelink that he was not partnered, whilst in receipt of a Centrelink payment.[464] In my Reasons of 10 June 2022,[465] in relation to an application for the Applicant to receive the benefit of a s128 certificate, I quoted from the Applicant’s affidavit:
[464] Applicant’s 17 May 2022 affidavit (n39) [11].
[465] Khoi & Khoi [2022] FedCFamC2F 932.
11.… Subsequently [Ms Khoi]’s solicitor continued to make unfounded allegations I was attempting to hide my relationship status in the Centrelink information. In response, my solicitor pointed out to [Ms Khoi]’s solicitor that in the Centrelink information provided it was clearly stated I was ‘Not Partnered’ during 2014 and 2021.
Now produced and shown to me and marked as Annexure “6” is a true copy of my solicitor’s email dated 2 March 2022.[466]
…
[from annexure Ms Khoi-6]
Our client confirms he has complied with the Orders of 24 November 2021 by providing your client with Centrelink records containing details of his relationship status through service by email transmission on 22 December 2021.
We again attach Centrelink records for ease of reference. For greater clarity, we refer your client to page 4 wherein it is stated our client was not partnered as being the status of his relationship, meaning that he was not in a relationship whilst in receipt of Centrelink payment.[467] (Emphasis added)
[466] Applicant's 17 May 2022 affidavit (n39) [11].
[467] Ibid [46], Annexure Mr Khoi-6.
The incongruous nature of the Applicant’s past representations and current position enlivens the concern lying at the heart of the ‘Elias principle’. This principle, as summarised in Jordan & Jordan (1997) FLC 92-736, once provided that:
[w]hen a party has made representations of fact to third parties and has gained advantage from so doing, it is open to the court in subsequent proceedings under s 79 [or s 90SM] of the Family Law Act to decline to accept from that party evidence which contradicts those representations.[468]
[468] Jordan & Jordan (1997) FLC 92-736, 83, 927; Elias & Elias (1977) FLC 90-267.
The Elias principle is not described as an ‘inflexible rule’ but instead as a principle which ‘imports a discretion permitting the Court to exclude certain evidence’.[469] However, the ultimate authority on this point generally is Nelson & Nelson (1995) 184 CLR 538, to which the subsequent decisions of Jordan and Crandall & Crandall do not refer.[470] Judge Riley in Tang & Vo referred to the decision of Ryan FM (as Her Honour then was) in JPJD & DADJ [2005] FMCAfam 86 and concluded that Jordan was inconsistent with Nelson.[471] The effect of Nelson upon the Elias principle, as stated by Her Honour in JPJD & DADJ (from extra-curial writings of Chisholm J) and adopted by me in these Reasons, was described as follows:
… the Elias line of authorities is wrong insofar as it suggests that there is a principle, apart from estoppel the court may or must prevent a party from leading evidence of a proposition that is inconsistent with an earlier statement made to a third party. It follows that in property cases the court will consider all the evidence and make findings about the property of the parties and about their contributions. Earlier inconsistent statements of the kind that feature in the Elias cases will of course be relevant to this fact finding exercise. The court will have to consider whether the earlier statement or the later statement is more likely to be true. Further, the contradiction will be taken into account in determining what confidence the court will have in that party’s evidence generally. That all of this falls into the ordinary process of fact finding: no evidence would be excluded, and there would be no presumptions that one or other of the inconsistent statements is more likely to be true.[472]
[469] Crandall & Crandall [2009] FamCAFC 120, [81], noting their Honours’ remarks immediately following: ‘for the ‘principle’ to have any application it is necessary to establish that some earlier representation was made that was inconsistent with the evidence sought to be adduced at trial’.
[470] Nelson & Nelson (1995) 184 CLR 538.
[471] Tang & Vo [2016] FCCA 880 [62] – [65].
[472] JPDJ & DADJ [2005] FMCAfam 86 [46].
The Applicant’s representation to Centrelink, that he was not partnered from 2014 to 2021, accords with objective evidence regarding his various addresses, his sister’s statement regarding him living at OO Street, Suburb PP until late 2019 and his representation to the Department of Immigration and Border Protection that he and Ms Z lived together until early 2017 at QQ Street, Suburb RR. I am satisfied that his representations to Centrelink were closer to the truth than the evidence that he gave in these proceedings regarding his purported cohabitation with the Respondent.
AAT decision / Ms Z’s Visa
Several documents were tendered during the trial which raised questions around the Applicant’s relationship with his previous wife, Ms Z. Exhibit R2 was a sponsorship document for Ms Z under a spousal visa, dated 2014.[473] This document, signed by the Applicant, provided information that the Applicant and Ms Z committed to a shared life in 2014, were married at Suburb U Victoria in 2014, and were residing at QQ Street, Suburb RR. The visa application was subsequently denied as the delegate was not satisfied that at the time of the application Ms Z was the spouse or de facto partner of Mr B.[474] This decision was appealed to the AAT in 2015.[475] As mentioned above, Exhibit R3 is inadmissible under s91 of the Evidence Act 1995 (Cth). Exhibit R9 tendered into evidence, was an email purportedly sent in late 2017 by the Applicant to the Department of Immigration and Border Protection stating that the Applicant’s relationship with Ms Z had ended one year prior.
[473] Trial: Cross-examination. The Applicant said that he only signed the document and that Ms Z was responsible for the application. See also Exhibit R1 – Advise by Migration agent for providing immigration assistance.
[474] Exhibit R11: Decision Record.
[475] The Applicant denies any involvement in the appeal.
Other documentation which challenged the Applicant’s evidence regarding his relationship with Ms Z was Exhibit R7. In the Applicant’s 23 February 2022 affidavit he stated, ‘[Ms Z] and I were married in 2013. Unfortunately, about one year into our marriage I discovered [Ms Z’s] infidelity and soon after she moved into her boyfriend’s home. [Ms Z] and I legally divorced in 2017.’[476] This evidence was clearly inconsistent with the Visa application (R7) and inconsistent with his 5 May 2022 affidavit where he stated, ‘In 2012 I began a relationship with [Ms Z]. I divorced [Ms Z] in 2013 after I discovered she had been unfaithful.’[477] In fact, he married Ms Z in 2014. His statement that his relationship with Ms Z ended in 2017 fits with my finding that he and the Respondent had a closer relationship after 2017.
[476] Applicant’s 23 February 2022 affidavit (n104) [6].
[477] Applicant’s 5 May 2022 affidavit (n6) [8].
As I have mentioned earlier in these Reasons, the inconsistencies in the Applicant’s evidence did not help his case, raising doubt around his evidence generally, and requiring me to look to the more objective evidence to make this determination.
Determination of the jurisdictional fact
Having carefully considered all the complex, often confusing, and contradictory evidence produced in these proceedings, within the framework of s 4AA of the Act, I conclude that the Applicant has not established to the requisite standard that he and the Respondent were in a relationship as a couple living together on a genuine domestic basis from 2013 until 2021, or at any time during that period.
It is entirely plausible that the Applicant and Respondent had a closer and more intimate relationship than stated by the Respondent, particularly after their respective marriages ended in 2016 and 2017. It is also clear that the parties were involved in a business venture in relation to the Country WW land. Perhaps that venture had something to do with the Respondent signing a Will benefiting the Applicant in 2019 as there was a correlation between the terms of her Will and the Applicant’s 2014 Will, which was written around the time of the Court proceedings. Ultimately, the Respondent changed her Will in 2020, at around the time she entered into the first agreement with the Applicant regarding the Country WW land. The opaqueness of both parties’ evidence in relation to these matters left many questions unresolved, which did not assist the Applicant’s case.
Crucially, the Applicant did not call his sister Ms EE, who he claimed was a witness to the parties’ relationship when she lived with them at Suburb Q. The absence of Mr AA’s testimony also left gaps in the evidence.
Ultimately, the evidence that supported the Applicant’s case — primarily the evidence of Mr G, Ms J, and Ms F — was not enough to establish that he and the Respondent were in a de-facto relationship. They may have been close for a period, they may have been intimate at times, but they were not engaged in a relationship as a couple, living together on a genuine domestic basis.
Consequently, the Applicant’s case must be dismissed, and I will make the declaration as sought by the Respondent.
I will also order that the Applicant do all things necessary to immediately remove all caveats he has lodged against the titles to properties owned by the Respondent. There is no proper basis for those caveats to remain in place.[478]
[478] Norton & Locke [2013] FamCAFC 202 [43] and [44], the Full Court stated, ‘This court, does, however, plainly have jurisdiction to determine if it has jurisdiction – in this case the jurisdiction to embark upon proceedings which seek to establish or deny the relevant jurisdictional facts. This court has the power to make orders that are necessary for the determination of issues relevant to that jurisdiction. Those powers include the power to control its own process; “[t]he power of each court over its own process is unlimited; it is a power incident to all courts, inferior as well as superior; were it not so, the court would be obliged to sit still and see its own process abused for the purpose of the injustice.’
Finally, I will make directions as to the filing of documents relating to any cost’s application.
I certify that the preceding two hundred and ninety-six (296) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Turnbull. Associate:
Dated: 31 January 2024
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