Palmerston and Hallett
[2012] FMCAfam 639
•29 June 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PALMERSTON & HALLETT | [2012] FMCAfam 639 |
| FAMILY LAW – Declaration as to de facto relationship – issue estoppel. |
| Family Law Act 1975, ss.4AA, 90RD New South Wales Property (Relationships) Act 1984 |
| Baker v Landon [2010] FMCAfam 280 Browne v Dunn (1983) 6 R 67 Jones & Dunkel (1959) 101 CLR 298 Kemeny v Kemeny (1998) FLC 92-806 Roy v Sturgeon (1986) 11 FamLR 271 |
| Applicant: | MR PALMERSTON |
| Respondent: | MS HALLETT |
| File Number: | MLC 644 of 2012 |
| Judgment of: | McGuire FM |
| Hearing dates: | 7, 8, 12, 13 & 15 June 2012 |
| Date of Last Submission: | 15 June 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 29 June 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms Colla |
| Solicitors for the Applicant: | Barry B. Moshel |
| Counsel for the Respondent: | Mr Kanarev |
| Solicitors for the Respondent: | Ian Robertson Legal |
ORDERS
That there be a declaration that the parties MR PALMERSTON and MS HALLETT were in a de facto relationship within the meaning of the Family Law Act 1975 between April 2008 and August 2010.
IT IS NOTED that publication of this judgment under the pseudonym Palmerston & Hallett is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 644 of 2012
| MR PALMERSTON |
Applicant
And
| MS HALLETT |
Respondent
REASONS FOR JUDGMENT
Applications and background
Mr Palmerston is the applicant for substantive orders for property settlement. In his Amended Initiating Application filed 13 March 2012 he first seeks a declaration pursuant to 90RD of the Family Law Act 1975 (“the Act”) that he and the respondent, Ms Hallett were in a de facto relationship from approximately April 2008 until either August or November 2010.
Ms Hallett denies that there was any such relationship within the meaning of the Act.
I am asked to make this determination as a preliminary issue to any substantive proceedings. To this end, the matter proceeded over some
5 days in June of this year.
As is common with issues as to whether or not a de facto relationship existed, and absent of the empirical evidence of a certificate and a ceremony that would accompany a marriage, issues of credit between the parties are germane to my determination. Each of the parties adduced evidence from a number of friends and acquaintances who, not surprisingly, made observations and conclusions consistent with those of the party for whom they provided affidavits and also not surprisingly, the evidence of those witnesses was generally that of subjective summation and conclusion.
There are, however, some agreed facts between the parties as follows:
·The applicant, Mr Palmerston, is 44 years of age;
·He has lived consistently at the property at Property S in Victoria prior to and during the course of his relationship, whatever its status, with the respondent, Ms Hallett;
·He has previously been married. He has no children;
·The respondent, Ms Hallett, is 39 years old;
·Ms Hallett has two children being X (aged 17 years) and Y (aged 10 years). From about 2006 she was employed as a (occupation omitted) for Mrs Hallett of Property N;
·In 2007 Ms Hallett separated from Y’s father, Mr K;
·In June 2007 Ms Hallett settled the purchase of a property at Property P. The evidence suggests that another of Ms Hallett’s former partners, X’s father, Mr B has primarily lived in that property;
·The parties met in the first months of 2008;
·In about July 2008 Ms Hallett purchased a one-half interest in Mr Palmerston's Property S property for approximately $160,000. That property hence became unencumbered;
·In July 2008 Mr Palmerston left his employment at (omitted). He says he left voluntarily. Ms Hallett says he was terminated. As was common in this matter, evidence was not adduced by either party to corroborate their claim which was essentially an issue of credit but may have had significance generally as to the credit of each of them in respect of this substantive issue;
·On 11 November 2008 Ms Hallett married Mr Hallett, the 85 year old widower of Mrs Hallett who had passed away in July 2007;
·In 2009 Mr Palmerston obtained employment as a part-time (omitted);
·In July 2009 the parties purchased a property at Property E, for $350,000. The purchase price was primarily obtained by a mortgage advanced on security of the Property S property and the Property E property itself;
·Also in 2009 Ms Hallett entered into an off-the-plan purchase for a property at Property O with settlement to take place in 2012. The evidence suggests that this property was purchased in her name alone;
·On 17 October 2009 Mr Hallett passed away. His funeral was held on (omitted) 2009. The applicant, Mr Palmerston attended the funeral albeit not for its entire duration;
·In or about November 2009 the parties travelled to Queensland for a holiday together with Ms Hallett’s two children;
·In April or May 2010 the parties acquired a franchise license in respect of (omitted). The business name is “(omitted)”. The franchisor was Mr H. The purchase price was $66,000 to obtain the license entitlements and a further $15,460 for a van. The business was registered in Mr Palmerston’s name alone. There is dispute between the parties as to why and how this occurred. Mr Palmerston proceeded to work in the business;
·
In about March or April 2010 the respondent became pregnant. Incredibly, neither party mentioned this fact in any of their affidavit material. There is a dispute as to the paternity of the child. Mr Palmerston says that he was the father and that Ms Hallett acknowledged this fact. She says that her boyfriend at the time, Mr P, was the father. Again, for reasons which escape me, Mr P was not called to give evidence. The pregnancy was terminated. The parties agree that Mr Palmerston assisted
Ms Hallett by his attendance with her at various medical procedures at this time;
·In or about June or July 2010 there was disquiet between the parties. They differ as to the reasons for this situation. Mr Palmerston says that it was because a disclosure was then made to him of Ms Hallett’s prior marriage to Mr Hallett in November 2008. She says that she had been evicted from the Hallett family home at Property N and wished to recoup her interest in the Property S property perhaps by its sale;
·The parties agree that Ms Hallett lived or stayed at the Property S property between about April 2008 and November 2010. They differ as to the status of her residence there. Mr Palmerston says that she was virtually a permanent resident during this time. Ms Hallett says that she “kept a room or rooms there” for herself and the children and would “come and go”;
·In 2011 Ms Hallett commenced proceedings for debt against Mr Palmerston in the County Court of Victoria. On 21 October 2011 a default judgment was entered against Mr Palmerston who had filed no appearance, such judgment being in the sum of $138,833; and
·Also in 2011 proceedings were commenced in the Victorian Civil and Administrative Tribunal (“VCAT”) seeking sale of the Property E property. An order for sale was made on 28 November 2011. However, those proceedings were adjourned (and presumably the order stayed?) on 19 January 2012 on the advice of Mr Palmerston that he intended to commence proceedings in this Court including seeking a declaration that the parties had lived in a de facto relationship.
The law
The Act (as amended) at s.4AA defines a de facto relationship as:
(1) A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b) the persons are not related by family; and
(c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Subsection 2 of that section sets out the circumstances which a Court may reference as being indicative of such a relationship. It is important to emphasise, however, that these references are not necessarily definitive of a de facto relationship; nor do they cover the field. It follows that there is a discretion in the Court to make a determination and declaration and this is clear from the reading of the section itself which states:
(2) Those circumstances may include [my emphasis] any or all of the following:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h) the care and support of children;
(i) the reputation and public aspects of the relationship.
Unlike a marriage which is necessarily evidenced by a certificate and ceremony, the discretion for the Court in this factual determination is emphasised at paragraph 4AA (4) as follows:
A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
Although the jurisdiction for this Court under the Act dates only from
1 March 2009, Courts in various other jurisdictions have long confronted the difficulties in defining a de facto or marriage-type relationship given the numerous and various types of relationships entered into by adults on domestic and emotional bases. In Roy v Sturgeon[1] his Honour Justice Powell dealing with a matter under the New South Wales Property (Relationships) Act 1984 stated at [458]:
With respect, it seems to me that to attempt to dissect the phrase “living together as a husband and wife on a bona fide domestic basis” into discrete “elements”, and then to test the facts of a particular case by reference to a set of a priori rules in order to establish whether a particular “element” is, or is not, present, is to ignore the fact that, just as human personalities and needs vary markedly, so, too, will the various aspects of their relationship which lead one to hold that a man and woman are living together as husband and wife on a bona fide domestic basis vary from case to case…
[1] (1986) 11 FamLR 271
In Baker v Landon[2] his Honour Federal Magistrate Riethmuller considered the same difficulties of definition within the wide discretion available to the Court. His Honour stated at [11]:
The requirements of s.4AA, in summarised form, require a decision as to whether the parties ‘have a relationship living together on a bona fide domestic basis’. In coming to this decision the court must have regard to ‘all of the circumstances of the relationship’, which may include the factors set out in s.4AA(2). Importantly, no finding as to a particular aspect of the relationship appears to be determinative (s.4AA(3)) nor does the section attempt to prescribe the weight to be attached to any particular factor (s.4AA(4)). As a result the definition cannot be said to be closely proscribed.
[2] [2010] FMCAfam 280
Preliminary consideration - Res judicata/Issue estoppel
Being somewhat surprised that this issue had not been raised at the commencement of this preliminary hearing, I thought it proper part way through the trial to raise with the parties the possibility of the principle of Res judicata or Issue estoppel as relevant to the matter before me. I sought submissions from Counsel at the conclusion of the evidence in respect of this matter. My concerns stemmed from the application and subsequent default judgment obtained by Ms Hallett against Mr Palmerston in the County Court of Victoria. It is clear that her action there had been one for debt. Mr Palmerston had not filed an appearance. Hence the question of jurisdiction for the Court had not been raised. Therefore the County Court, quite properly, proceeded on the basis that it had jurisdiction between these two adults to entertain an application in debt. If, however, the parties are or were living in a de facto relationship, then that Court would not have jurisdiction. The chronology as it eventuated, and as concerns me, is that Mr Palmerston may be estopped on the principle of Res judicata given another Court has exercised its jurisdiction, or more particularly, that its jurisdiction has not been challenged, in financial type proceedings between these two parties.
Not surprisingly, after I had raised this issue with Counsel, the final submissions on behalf of Ms Hallett were to the effect that issue estoppel did apply. Equally unsurprisingly, the submissions on behalf of Mr Palmerston were that the principle did not apply on the factual platform before me.
The principles of Res judicata are well known and established. Those principles are, and I borrow from the Full Court in Kemeny v Kemeny[3] at [85,085]:
[3] (1998) FLC 92-806
(i) the initial decision was a judicial one;
(ii) the decision has in fact been pronounced;
(iii)the first tribunal had jurisdiction over the parties and subject matter;
(iv)the decision was final and made on the merits;
(v)the decision determined the same question as that raised in the second or later litigation; and
(vi)the parties were the same in respect of each litigation.
I am told that an application has been made to the County Court to set aside its default judgment. I also note that the hearing before me now is a preliminary and discreet one between these parties as to whether a
de facto relationship exists pursuant to the provisions of the Act. There are substantive proceedings for property settlement on Mr Palmerston’s application. This is a necessary pre-requisite of the preliminary hearing in that the authorities historically have made it clear that Courts are and should be loathe to proceed to make declarations per se without accompanying substantive proceedings.
After some reflection, I have determined that I should not proceed to decide this jurisdictional issue at this stage. I repeat, that the hearing now before me is a discreet one. I note that the issue was raised on my initiative rather than by either of the parties and, to be fair to Counsel, they were taken by some surprise and I accept that they may not have had sufficient time to fully consider this matter.
There are prima facie substantive proceedings for property settlement before the Court although now not before me. I think it proper to make my determination as to the discreet issue as to whether or not there is a de facto relationship and then, if necessary, to list later for further argument in respect of the issue of Res judicata which, of course, relates directly as to whether or not Mr Palmerston is able to pursue his substantive claim for property settlement, dependant of course on whether I determine there to be a de facto relationship. Importantly, there is an application before the County Court to set aside the default judgment. Depending upon my finding as to the preliminary issue, that Court may decide that it had no jurisdiction. In essence, therefore, for these reasons, I do not think it either necessary or proper to determine the issue of Res judicata at this stage.
The evidence
The evidence in this preliminary hearing proceeded over five days.
The applicant relied on his three affidavits filed 30 January,
13 March and 16 May 2012. He adduced evidence from the following:
(i)Mr C, son-in-law of the late Mr Hallett. His affidavit was filed 16 May 2012;
(ii)Mr J, son of the late Mr Hallett. His affidavit was filed 4 May 2012;
(iii)Mr A, who is a neighbour of the Property S property. His affidavit was filed 4 May 2012; and
(iv)Mr F, who is a long-term friend of Mr Palmerston. His affidavit was filed 4 May 2012.
The respondent relied on her three affidavits filed 13 March, 4 May and 15 May 2012.
She also adduced evidence from the following:
(i)Mr B, who is X’s father. His affidavit was filed 15 May 2012;
(ii)Ms G, who is a friend of the respondent. Her affidavit was filed 16 May 2012;
(iii)Mr M, who is also a friend of the respondent of some eight years duration. His affidavit was filed 16 May 2012;
(iv)
Mr R who is a (omitted) of Police and acquaintance of the respondent. His affidavit was filed 16 May 2012 and read into evidence without him being required for
cross-examination.
Ms Hallett is of (omitted) origin. She sought and was provided with the services of an interpreter. As the respondent, she spent the first day of the evidence seated in the back of the Court next to her interpreter. My observation was of little or no communications between the interpreter and Ms Hallett. She did not give any indications of difficulties in understanding the course of the evidence which proceeded that day. It followed that my enquiries of her Counsel suggested that she did have an adequate understanding of English but that she required the services of the interpreter should she have any difficulties with legal terminology and the like. It was agreed that the services of the interpreter should be retained at least during her
cross-examination. I further noted minimal use of the interpreter during Ms Hallett’s cross-examination. My questions to her and my observations of cross-examination were of a woman who clearly understood English, was able to consider a question, and was able to articulate her responses.
The applicant’s case
Mr Palmerston says that the parties met at a gaming venue in January or February 2008. A relationship began. The respondent moved into his home in about April 2008 and her children arrived soon thereafter. He says that they continued their relationship which was a sexual one, until August 2010. He says that there were public aspects of their relationship in that they socialised together and took holidays together. He says that there was a financial intertwining by their joint ownership of real estate and that he acceded to the respondent’s request for him to become a “house husband” as early as 2008 where upon he provided some domestic chores and cared at times for the respondent’s children.
Mr Palmerston says that he had no knowledge of the respondent’s marriage to the late Mr Hallett until she made a disclosure in about June or July 2010 being some nine or so months after Mr Hallett’s death and at a time that the respondent was evicted from the Hallett family residence. He says that their relationship had continued during the 10 months or so of the marriage between Ms Hallett and
Mr Hallett on its sexual, public and cohabitation bases. His position is that he understood Ms Hallett to be the carer of Mr Hallett.
The respondent’s case
The respondent argues that there was never a bona fide domestic relationship between the parties. She says that she took pity on
Mr Palmerston and, consistent with her generous and altruistic nature, invested in his Property S property thereby alleviating his need to make mortgage instalment payments. She agrees that the relationship was sexual but her primary position is that the sexual relationship ceased at the time of or before her marriage to Mr Hallett. She describes the parties as “joint investors”. She says that her marriage to Mr Hallett was not kept a secret to Mr Palmerston or others. She deposes that she had rooms for herself and the children at the Property S property on account of her rights of ownership and that she would stay there at various times as well as other residences including the Property P property and the Hallett residence at Property N. She denies the involvement of Mr Palmerston with domestic chores and caring for the children, at least to the extent that he claims. She says that she became pregnant in about March 2010 to her then boyfriend Mr P. She agrees that the pregnancy was terminated and that Mr Palmerston provided support and assistance to her at this time.
Discussion
As is common with issues before these Courts involving matters of credit and discretion, there are factors which weigh both for and against the arguments of each of the parties. To this end, it is my duty to make a determination on a standard of proof as to the balance of probabilities. If an onus exists in matters such as these then it rests with the party making the assertion of a de facto relationship which in this case is Mr Palmerston. In the normal evidentiary sense, a party making an assertion of fact carries an onus of proof on the balance of probabilities.
On any reading, there was a form of relationship between the parties from about April 2008 until August 2010. During this time they were joint investors in property. They associated together publicly and perhaps regularly. Ms Hallett took accommodation in the applicant’s home at Property S. Her two children stayed at the Property S home. Ms Hallett argues, however that this was not her only accommodation. Her former partner, Mr B gave evidence that she would stay at the Property P property although, following his cross-examination, I am satisfied that their daughter X was a more frequent and regular occupant of the Property P property than her mother. He used or adopted the term “spasmodically” in relation to Ms Hallett staying at Property P. Ms Hallett was, of course, the registered owner of this property and indeed Mr B seems to have lived there with his new partner on a rent-free basis and did not contribute child support for X.
Ms Hallett’s unchallenged evidence was that she would have locations other than the Property S property as her mailing addresses. She would receive mail at Property S, Property P and Property N.
Similarly, she places emphasis on the fact that the titles to the Property S and Property E properties were registered as tenants-in-common rather than as joint tenants. She says that this is an indicator of a business-type relationship rather than an emotional commitment. Further, she says there are no joint wills nor were there joint bank accounts save and except the obvious mortgage accounts.
Ms Hallett says that, although conceding a sexual relationship with Mr Palmerston, she maintained her own separate bedroom and adduced evidence from her witnesses accordingly. A hand drafted plan of the Property S property was tendered into evidence with Ms Hallett and her witnesses suggesting that she occupied a front bedroom and
Mr Palmerston a rear bedroom.
The applicant says that the parties shared a bedroom at least until the troubles of 2010 where upon there may have been separate rooms until Ms Hallett and the children departed the property in November of that year. He relies on the evidence of Mr F to this effect. He was clearly a regular visitor to the home on perhaps a near fortnightly overnight basis on a Saturday evening in anticipation of a game of golf on Sunday morning. Mr F’s observations were of the parties sharing one bedroom and also of references as to Ms Hallett being referred to by Mr Palmerston as his “girlfriend”.
In this respect I prefer the corroborative evidence of Mr F. After testing of the evidence of the witnesses for both parties, he appeared to be a more regular visitor to the home. The visits by Mr M,
Mr B and Ms G were rare and irregular as were the connections between Mr R and the respondent. Mr F impressed as an objective and considered witness and withstood challenge under cross-examination. To the contrary, the evidence of Mr M and Ms G, in particular, gave the impression of an exercise more in subjective deduction. For instance, neither of them was aware, or made aware by Ms Hallett, that her relationship with Mr Palmerston had been a sexual one. Essentially, the evidence of each was equivocal and not based on the same regular observations as that of Mr F.
Similarly, the neighbour, Mr A, was an impressive witness. His evidence had the tinge of objectivity. He did not appear to be aligned with either of the parties. He was simply a neighbour who gave evidence of his observations which was as to his regular and consistent sightings of Ms Hallett at the Property S property which I can interpret as being contrary to her own evidence of simply an irregular “coming and going”. For instance, Mr A emphasised his observances of
Ms Hallett taking her children to school in the mornings. Mr Palmerston referred to Ms Hallett as his “girlfriend” to Mr A. He observed two motor vehicles regularly at the property.
Consequently, I am satisfied on the evidence that the parties did each habitually live at the Property S property. There is no doubt that it was
Mr Palmerston’s permanent residence. I accept that Ms Hallett would occasionally stay elsewhere be it at Property P or the Property N property. I do not accept, however, her evidence that she did habitually live at the Property N property during the course of her marriage to
Mr Hallett. To this end, I prefer the evidence of Mr J and the observations I have referred to above. Mr J was also an impressive witness. I did not observe any incapacity in his ability to understand questions and give considered answers despite an apparent acquired brain injury. Put simply, he denied the fact that Ms Hallett resided at the Property N property. He conceded that her children would sometimes be present. He conceded that she had on occasion stayed at the property overnight but no more than a half dozen times in total. His evidence was precise, however, and withstood challenge when he said that she would normally leave at about 2.30 pm in order to collect the children and that he would then take over the responsibility for care of his father for the night. Interestingly, Ms Hallett and one of her witnesses suggested that Mr J did not actually live at his father’s home at Property N. This assertion was made as respondent and witness for the respondent. It did not appear in either Ms Hallett’s affidavits or those of the witness Mr M. Importantly, it was not put to Mr J in cross-examination. His affidavit at paragraph 3 says:
I lived in the family home with my late father at Property N for most of my life including from the period 11 November 2008 until October 17th 2009 (“the period”) when my father passed away.
He was not challenged as to this evidence. Indeed the first question put to Mr Hallett in cross-examination suggested his evidence to be conceded when it was put to him “You say Ms Hallett slept in your house no more than 6 times”. Not only does the evidence of Ms Hallett and her witness potentially offend the rule in Browne v Dunn[4] but it also raises the suspicion of recent intervention and impacts on my findings as to credit.
[4] (1983) 6 R 67
Mr Palmerston says that the relationship between the parties was sexual and was so throughout its duration. Ms Hallett was cross-examined as to this point. She conceded that the sexual relationship with Mr Palmerston did continue after her marriage to Mr Hallett. In her affidavit material she says that this was not the case. Despite Ms Hallett being afforded an interpreter, I am satisfied that she has a good command of the English language. The use of the interpreter was limited in the extreme and his assistance was not often sought by
Ms Hallett. Her answer to this question was spontaneous and I gleaned no difficulties with her understanding of the question. Consequently, where there is a conflict in her evidence in this respect, I preferred her answer in cross-examination. At the very least her evidence in this respect is contradictory and unsatisfactory. Mr Palmerston was not successfully challenged as to his evidence as to the continuing sexual relationship.
Although neither party in their affidavit material mentioned the fact of the respondent’s pregnancy from about March 2010, Ms Hallett gave evidence that the father was her boyfriend, Mr P. This gentleman was not called to give evidence. No explanation was given for the failure to do so. Quite obviously, his evidence may have been corroborative of the respondent’s position and generally as to her credit in respect of the substantive issue. It follows, without such explanation for his absence, that it is open for me to draw an inference that Mr P’s evidence might not have assisted the respondent’s case[5]. Given one of the considerations being as to a sexual relationship between the parties, Mr Palmerston’s evidence that he was the father of the child, and Ms Hallett’s denial of this fact, I am able to draw such an inference that Mr P’s evidence may not have been of assistance to the respondent and it follows that I prefer the evidence of Mr Palmerston that the sexual relationship was a continuing one and that he may well have been the father of the child. Certainly, Ms Hallett’s concessions as to the degree of care and attention afforded her at the time of her pregnancy and its termination, is consistent with Mr Palmerston’s version of their relationship and perhaps contrary to the “business-only” relationship espoused by Ms Hallett.
[5] Jones & Dunkel (1959) 101 CLR 298
There has been quite clearly a degree of financial interdependence and intertwining between the parties. It is only the motivation for this fact that is in issue. Ms Hallett claims altruism, generosity and business acumen as the motivation. Mr Palmerston says that it is consistent with their emotional commitment at the time.
I am troubled by the inconsistencies in Ms Hallett’s evidence in this regard. She variously and vigorously describes Mr Palmerston as a
drug-smoking, pornographic-watching man with little motivation to obtain employment. Yet, despite these conclusions as to his character, she is prepared to enter into a number of business enterprises with him and apparently to his potential benefit. These include the purchase of at least two properties and one business venture. If Ms Hallett was a business-investor as she says, then I can only suggest her choice of business partners, on her evidence, is not indicative of being a prudent one. For example, her investment of $160,000 in the Property S property brought her no immediate financial return and the only manifest benefit being an occasional but unnecessary accommodation for herself and the children.
I do not place a great deal of weight on the fact that properties were purchased as tenants-in-common rather than as joint tenants. The fact is that these purchases were made at early stages of their relationship, whatever its status. Ms Hallett provided significant funds. She is the mother of two children. She had the benefit of a solicitor’s advice. Whilst registration of a title between two people as joint tenants may be consistent with a marriage-type relationship, it is not a necessary or definitive factor. It follows that the lack of mutual wills and even joint bank accounts are also no more than indicators and not definitive. I place little store on the absence of these factors in what was ultimately a relatively short relationship.
Another issue of credit arose between the parties as to why Mr Palmerston left his employment in early or mid 2008. He says that it was consistent with the establishment of the relationship where it was agreed he would be “house husband” and that he left voluntarily. She says that his services were terminated. Again, neither party adduced corroborative evidence which one suspects might have been readily available to each of them. No explanation for the failure to do so was given on behalf of either party.
I can only conclude that there were financial aspects to this relationship. They included joint investments and there was a degree of financial support. As to whether that financial provision from Ms Hallett was altruistic or as an element of their relationship, I again prefer the evidence of Mr Palmerston. His evidence withstood challenge. It is a situation which, whilst perhaps unusual, is consistent with the establishment of a domestic relationship. It is consistent with the fact that Ms Hallett had access to cash funds and had interests in property. The business-like relationship proffered by Ms Hallett is inconsistent with her descriptions of the personality of Mr Palmerston.
I am satisfied on the evidence that Ms Hallett’s children X and Y spent considerable time at the Property S residence. This was the observation of Mr A, the neighbour, and Mr F, the most regular visitor. Ms Hallett conceded that they had rooms at the property. She conceded that Mr Palmerston would on occasion assist her in the care of the children such as collecting them from school. Her response under cross-examination as to this point was unbelievable and does her little credit. In her attempts to deny that Mr Palmerston assisted as he claimed, she volunteered that she would on occasion pay him $200 to collect the children from school. The fact that he could not name the children’s school teachers and perhaps not even remember their actual birth dates is of little significance in my view. I am satisfied that he did attend some events for the children such as birthday parties and school functions.
There was a public aspect to the relationship between Mr Palmerston and Ms Hallett. They went on holidays and day trips together. They visited friends together, in particular the friends of Ms Hallett.
Mr M’s evidence that on the visits to him they seemed to be simply “friends” was unconvincing, as was that of Ms G. Again, the conclusions of each of them as to the status of the relationship appear to have been made without sound premise. Each of these witnesses were oblivious to the agreed fact that the relationship between Mr Palmerston and Ms Hallett had a sexual aspect. I accept the evidence of Mr A and Mr F as to the use of the term “girlfriend” with reference to the respondent. This is inconsistent with the type of relationship proffered by Ms Hallett.
The parties and Ms Hallett’s children enjoyed a holiday in Queensland in late 2009. They shared a hotel room. They socialised with Ms Hallett’s friends. Again, Ms Hallett’s explanation that she funded the trip and that Mr Palmerston simply “came along for the ride” is inherently unacceptable given her descriptions of his personality and her claiming a “business-only” relationship. Such events are, however, consistent with a domestic-type relationship.
There is, of course, the unusual event of Ms Hallett’s marriage to Mr Hallett on 11 November 2008. Ms Hallett was a woman in her mid-30’s. She was the carer of Mr Hallett’s late wife until her death in 2007. She says that she married Mr Hallett in order to save him from his family placing him in a nursing home. She says, however, that there was general affection between the two of them. She denies that the marriage was secret.
Mr C, the late Mr Hallett’s son-in-law gave evidence and was an impressive witness. It was clear that the marriage of his late father-in-law was not one accepted by the family and I accept his evidence that it was carried out in secret. That evidence is supported by that of Mr J who says he knew of the marriage but was “sworn to secrecy”. Ms Hallett herself says that there was a reception attended by Mr Hallett’s friends. There is no evidence of who or how many people attended and certainly none as to Ms Hallett’s own friends being in attendance. Whilst some of the evidence of Mr C as to the funeral arrangements may have been contradicted by an affidavit filed by his own wife in the state Court proceedings, I am satisfied that the marriage between Ms Hallett and Mr Hallett was generally kept secret or at least was not widely public. There was no corroborative evidence of a public nature to the marriage from, for example, witnesses such as Mr M or
Ms G. Mr B claims to have been a close friend of the respondent for 20 years. He is the father of one of the children. Ms Hallett says that she regularly stayed at the same residence as him. Their relationship is such that Ms Hallett did not see the need to obtain rent or child support from him. Yet, despite there being a wedding reception attended by friends of the late Mr Hallett, Mr B and others apparently close to Ms Hallett did not attend. Similarly, Mr B’s affidavit is silent as to the fact of the wedding although in cross-examination he did state that he was told of the wedding prior to it taking place. Ms Hallett suggests a motivation for the marriage was to prevent Mr Hallett being put into a nursing home by his family. Such a suggestion was emphatically denied by Mr C citing the fact that his own wife, Mr Hallett’s daughter, is a trained or experienced (occupation omitted).
I prefer that the wedding between Ms Hallett and the late Mr Hallett was kept secret. I accept that it was kept secret from Mr Palmerston and therefore do not accept that Ms Hallett visited him in her wedding dress on the day of the wedding in order to discuss aspects of a motor vehicle. I generally prefer the evidence of Mr Palmerston in this regard. Neither Mr A nor Mr F gave evidence as to any change in their observations of the Property S household after 11 November 2008.
The parties agree that Mr Palmerston at some time gave Ms Hallett a gold necklace which had belonged to his own mother. Ms Hallett says it was a birthday gift which was ultimately taken back by Mr Palmerston. Nevertheless, I am of the view that a gift of such an emotional nature is more consistent with a domestic type relationship between these two people rather than a “business-only” relationship argued by Ms Hallett. Indeed, the taking back of the gift by Mr Palmerston may be morally objectionable but is perhaps also consistent with the demise of a domestic relationship rather than a business one.
Conclusion
Although the relationship between these two people had unusual characteristics, not the least being Ms Hallett entering a marriage with another person during the course of the relationship, I am satisfied on the balance of probabilities that there are aspects of the relationship between the two of them which bring them under the definition of a
de facto relationship for the purposes of the Act. Indeed, it is abundantly clear that a marriage by one party to a third person does not necessarily preclude the fact of a de facto relationship with another.
In this matter I am satisfied that the relationship was of some duration. I am satisfied on the evidence that Ms Hallett and her children habitually resided at the Property S property. There was a financial interdependence and interaction between the parties consistent with a de facto relationship. There were public aspects of the relationship consistent with an emotional relationship. That relationship was sexual and I am satisfied that it continued after the marriage of the respondent to the late Mr Hallett.
There will be a declaration of a de facto relationship pursuant to s.90RD of the Act.
I am satisfied that the relationship continued between April 2008 and August 2010.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of McGuire FM
Date: 29 June 2012
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