Shee & Hale

[2020] FamCA 84

FAMILY COURT OF AUSTRALIA

SHEE & HALE [2020] FamCA 84

FAMILY LAW – DE FACTO RELATIONSHIPS – where the Applicant seeks a declaration pursuant to s 90RD of the Act that the parties were in a “de facto relationship” within the meaning of s 4AA(2) of the Act for the period 22 March 2010 to 12 August 2016 – where it is agreed that the parties were in a genuine domestic relationship for the “first period” from March 2007 to 22 March 2010 when the parties lived together under one roof – where the Court finds that no genuine domestic relationship existed in the “second period” between March 2010 and July 2012 when the parties lived in separate residences – where the Court is not satisfied that a de facto relationship between the parties within the meaning of the Act was created or existed for the period from July 2012 to August 2016.

Family Law Act 1975 (Cth) ss 4AA,

Herford & Berke (No. 2) [2019] FamCAFC 182
Sinclair& Whittaker (2013) FLC 93-551
Onslow & Onslow [2016] FamCAFC 7

APPLICANT: Ms Shee

RESPONDENT: Mr Hale

FILE NUMBER: SYC 2311 of 2017

DATE DELIVERED: 18 February 2020

PLACE DELIVERED: Canberra

PLACE HEARD: Sydney

JUDGMENT OF: Baumann J

HEARING DATE: 5 & 6 July and 8 & 9 October 2018

WRITTEN SUBMISSIONS FILED BY: 13 December 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

(5 and 6 July 2018)

Mr P Cummings SC with Mr J Longworth

COUNSEL FOR THE APPLICANT:

(8 and 9 October 2018)

Mr A McInerney SC with Ms M Barnett

SOLICITOR FOR THE APPLICANT: Pearson Emerson Meyer
Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr T Kirk SC

SOLICITOR FOR THE RESPONDENT: Broun Abrahams Burreket

Orders

1. That the Court declares pursuant to s 90RD of the Family Law Act 1975, that the Applicant and Respondent were in a de facto relationship from March 2007 to March 2010.

2. That these proceedings be adjourned for Case Management Hearing at 9.30am on 2 April 2020 in the Family Court of Australia at Sydney.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Shee & Hale has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: SYC 2311 of 2017

Ms Shee

Applicant

And

Mr Hale

Respondent

REASONS FOR JUDGMENT

Introduction

1. It is common ground in this matter that the Applicant Ms Shee and the Respondent Mr Hale were in a genuine domestic relationship from March 2007 to 22 March 2010.

2. Mr Hale says that from 22 March 2020 the parties maintained a friendship and also a business relationship but that no genuine domestic relationship reformed.  Ms Shee asserts that the relationship continued after 22 March 2010 and continued to 12 August 2016.

3. The evidence proceeded over 5/6 July 2018, when the matter was adjourned part-heard until 8 October 2018 for a further two days.  As a result of issues that arose on 6 July 2018 relating to further telephone messages and some other evidence, the parties were given leave to file a further Affidavit as directed by the order of 6 July 2018.

4. At the conclusion of the evidence directions were made for the parties to file written submissions and the following submissions were received and have been considered:

   a)9 November 2018 - written submissions by the Applicant;

   b)23 November 2018 - written submissions by the Respondent in response; and

   c)30 November 2018 - written submissions by the Applicant in reply.

5. On 13 December 2018, the Respondent filed a written submission in reply objecting to the Applicant’s submissions in reply which did not relate to asserted matters of law or errors of fact.

statutory framework

1. Relevantly, Section 4AA(1)(2)(3) and (4) of the Family Law Act 1975 provides that:

   “(1)person is in a  de facto relationship with another person if:

   (a)the persons are not legally married to each other; and

   (b)the persons are not related by family (see subsection (6)); and

   (chaving regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

   Paragraph (c) has effect subject to subsection (5).

   Working out if persons have a relationship as a couple

   (2)Those circumstances may include any or all of the following:

   (a)the duration of the relationship;

   (b)the nature and extent of their common residence;

   (c)whether a sexual relationship exists;

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

   (e)the ownership, use and acquisition of their property;

   (f)the degree of mutual commitment to a shared life;

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

   (h)the care and support of children;

(i)the reputation and public aspects of the relationship.

(3)No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.

(4)A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.”

1. Recently in Herford & Berke (No. 2) [2019] FamCAFC 182 the Full Court (Ainslie-Wallace, Ryan & Aldridge JJ), when noting that the touchstone or foundational fact establishing jurisdiction is whether the parties were “a couple living together on a genuine domestic basis” at the relevant time said (at [10] to [12]) that the question can be decided by reference to the matters to which s 4AA(2) of the Act refers, none of which are determinative of the question as was said in Sinclair& Whittaker (2013) FLC 93-551:

   “51.In coming to the view that a couple had a relationship as a couple living together on a genuine domestic basis the court is to have regard to all of the circumstances of their relationship.  Those circumstances may include those specified in ss 4AA(2). 

   52.Sub-section 4AA(3) highlights that no particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the subject persons have a de facto relationship. 

   53.53.  Sub-section 4AA(4) provides:

   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.

   54.Thus, whether or not a de facto relationship, as defined, exists will depend upon an assessment of all of the circumstances of the relationship, each to be given the weight the court thinks appropriate.

   11.In Lynam v Director-General of Social Security (1983) 52 ALR 128 (“Lynam”) at 131 Fitzgerald J said apropos the presence or otherwise of financial support in considering the nature of a relationship between an unmarried couple:

   Financial arrangements cannot be taken in isolation and considered of particular importance in determining the nature of relationship.  Their materiality, like each of the other elements of the relationship, stems from the impact which they have as part of an overall situation.  Each element of a relationship draws its colour and its significance from the other elements, some of which may point at one direction and some in the other.  What must be looked at is the composite picture.  Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error.  The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.

   12.While Lynam clearly predates the amendments to the Act with which this case is concerned, it stands for the importance of considering all of the relevant facts and circumstances as a whole in determining the nature and characteristics of the relationship being examined.”

2. Sinclair& Whittaker (supra) itself has been followed by subsequent Full Courts, and one such decision, relied upon by the Applicant is Onslow & Onslow [2016] FamCAFC 7 and particularly the remarks of Murphy J at [97]. The Applicant contends, and I accept, that:

   “137.Thus, where there is an admitted de facto relationship but a dispute as to when it concluded, indicia that may normally indicate that the parties are not in a de facto relationship may either be given less weight or, indeed, indicate a continuation of a de facto relationship with the same hallmarks.”

3. Although some of the evidence overlaps, there is some analytical sense in assessing the evidence in three distinct periods, being:

   a)The “first period” from March 2007 to March 2010 when the parties concede a genuine domestic relationship existed and they lived together under one roof at Mr Hale’s unit at Suburb C (“the Suburb C unit”);

   b)The “second period” from March 2010 to July 2012 when the parties lived in separate residences; and

   c)The “third period” from July 2012 when Ms Shee returned to live in the Suburb C unit, with the parties disputing whether they “lived” together.

4. Even though these distinct periods shape the analysis of the evidence, I accept that the Court must look at the “relationship” as a whole.

Credibility

1. Although the Court has been provided with a voluminous array of emails, text messages, personal diary entries, telephone call summaries and credit card transactions, as might be expected, interpretations now of a number of these entries differ.  To a large degree, the perspective each party holds on their relationship from March 2010 – Ms Shee maintaining the relationship continued to 2016 and Mr Hale contending that the de facto relationship ended in March 2010 – explains some of the differences.

2. It is neither possible nor necessary to attempt to interpret every written or asserted oral exchange over a period exceeding six years.  However, despite the lengthy submissions of Counsel for the Respondent about the Applicant’s credibility (paragraph 3.2) and the Respondent’s credibility (paragraph 3.3), I am not persuaded that “the Applicant’s evidence was wholly unreliable and the evidence of the Respondent, with the support of his daughters, is to be preferred” on every point.

3. The Applicant was at times vague and admitted to a poor memory.  English is not her first language and she was very careful in trying to understand the question put before answering.  However, I did not regard Ms Shee as evasive or lacking in honesty – just at times confused and uncertain.

4. The Respondent, a very experienced business professional was much more confident in his demeanour and provided “detailed evidence and was pedantic with accuracy”, as described by his Counsel’s submissions.  I rely upon his statements generally relating to the D Town development and the areas of professional advice he was asked by Ms Shee to provide her from time to time.  However, in respect of his personal relationship with Ms Shee, clearly both of the parties held residual affection for each other after March 2010.

5. The March 2010 event, when the parties separated has not then, or since, been characterised by some overt conflict and period of no communication.  The events after March 2010 reveal a close and continuing business relationship – demanded at least by the agreement in 2009 to acquire the D Town site and, thereafter from August 2013 to finance and complete a development of 23 units on the site.

6. To the extent it is necessary when making a finding on a particular issue (and not all issues raised in the evidence or referred to in the extensive submissions require a finding), I indicate why I prefer one version of the facts over the other.

7. Before I commence the analysis of the evidence required, it is helpful to provide some base contextual history – the majority of those events not being in conflict.  Statements of fact which follow should be construed as statements of fact.

Brief contextual history

1. Australian born Mr Hale is aged 70 years and Ms Shee is now aged 60 years and was born in Country E.  The parties met in late 2004 and commenced cohabitation in a genuine domestic relationship from March 2007 when Ms Shee moved into Mr Hale’s unit at Suburb C to live.

2. In so doing, Ms Shee vacated her home at Suburb F which she ultimately sold in Mid-2009.  Although I heard little cross-examination on this issue, both parties allege, and it was not seriously disputed, that each supported the other with small loans between 2005 and 2008.  On the sale of the Suburb F unit in July 2009 Ms Shee lent $350,000 to Mr Hale for Mr Hale to invest on her behalf in the stock market.  He said, I accept, that she would not lose any money and they will share the profits, if any.  Although Ms Shee says she was never provided with an accounting of the use of the funds, she conceded all the funds were repaid by October 2010.

3. In December 2009, Ms Shee identified a development site at D Town to purchase which settled in February 2010.  Because of the importance of this purchase and subsequent development, I deal discretely with this topic in these Reasons.

4. During 2009 and certainly by the end of that year tensions in the personal relationship of the parties arose, although both say for different reasons, being:

   d)Ms Shee says she had requested Mr Hale to repay the balance of the loan of $350,000 by the end of 2009 but Mr Hale was unable to do so.  Other “quarrels” occurred between them.  She also says that Mr Hale snores and disrupts her sleep regularly; and

   e)Mr Hale says that since Ms Shee suffered whooping cough which, he says, led to Ms Shee developing chronic fatigue, the quality of the relationship deteriorated with sexual intimacy reducing.

5. It is not necessary to determine a definitive cause for the tensions, however what is not disputed is that on 22 March 2010, Ms Shee and her daughter X moved out of the Suburb C unit and into a rental unit in G Street, Suburb H.  Before Ms Shee moved out the parties undertook couples counselling, on at least two occasions, in February 2010 at T Service.  There is a dispute between the parties as to how much further counselling in April, May and July 2010 occurred – Mr Hale stating he only attended on two occasions in total.  In the absence of any corroboration (which ought to have been available), I am not satisfied how much counselling took place.

6. Mr Hale says, and I accept, that the parties remained good friends after March 2010 however critically, Ms Shee says the genuine domestic relationship continued although the parties lived in separate homes until 25 July 2012.  I deal with this “second period” below in more detail.

7. In December 2010, Ms Shee and X moved into a unit Ms Shee owned in Suburb A where she continued to reside until it was sold in June 2012.  Around the time of the sale, Ms Shee took a holiday back to her native Country E and when she returned, the parties’ earlier discussions about where Ms Shee shall live, continued.

8. The parties are in dispute about the basis upon which Ms Shee began to live in the Suburb C unit, although both agree she did move into the unit (and occupied the main bedroom with the ensuite), together with her furniture on or about 25 July 2012.

9. As to the basis upon which the occupancy commenced:

   a)Ms Shee says the relationship as it existed under the one roof to March 2010 fully resumed and continued until July 2016; and

   b)Mr Hale says he was using the second bedroom as an occasional city living base whilst also using the property as his office for the D Town development.  He says that Ms Shee paid rent for 12 months.

10. As might be expected, during the hearing significant cross-examination about this period (“the third period”) took place and is dealt with below.

11. After attempts to sell the D Town property as a development site proved unsuccessful, the parties as co-venturers, decided on or about 20 August 2013 to develop the site and after finance was raised, construction commenced in January 2015.

12. On 12 July 2016, Ms Shee packed some bags and without notice to Mr Hale, moved into Unit 7 of the D Town development initially before arranging to collect her furniture and belongings on 12 August 2016.

13. Ms Shee commenced proceedings by an Application filed 12 April 2017.

The D Town development

1. The purpose of dealing with this major commercial development by the parties discretely is not to determine their individual or financial contributions to the project or to ascertain whether a proper and fair distribution of funds has taken place.  Rather, as this project commenced in December 2009 when both parties accept they were, at that time in a de facto relationship, I think it is contextually important to understand the extent of engagement these parties exerted to the project from December 2009 until August 2016 - which perhaps coincidently is around the time Ms Shee says she finally brought the de facto relationship to an end.  In this respect, and for this purpose, I make the following findings:

   a)I accept that consistent with a common intention to carry out a property development together, Ms Shee identified a suitable site in D Town, regional New South Wales.  The site is located in the K Town area approximately two hours’ drive from Sydney;

   b)The site was purchased from a Liquidator with a development approval for 19 units.  The price was $1M and after a mortgage of $544,000 was secured, the balance of the funds were essentially contributed by the parties, with Mr Hale contributing more at the time than Ms Shee;

   c)An entity, L Pty Ltd as Trustee for the L Unit Trust, was the legal purchaser.  The Unit Trust had two fixed units, one held by the Mr Hale Family Trust and one held by the Ms Shee Family Trust;

   d)Mr Hale personally acted on the purchase and I accept that whilst Ms Shee had experience in property and retail (including for example the 67 unit development in Suburb A), Mr Hale had a broad history in property and business.  He says he was able to ensure, for example, that the purchaser obtained the benefit of the “Margin Scheme” against the intentions of the seller;

   e)After purchasing the D Town site, the parties prepared a feasibility study showing estimated sales, revenue, costs and profits which was continually updated and used to market the site.  Agents in Sydney and in K Town were engaged, and Mr Hale says, and I accept, that there were numerous meetings involved in trying to sell the site during 2011 and 2012;

   f)By the middle of 2012, having tried to sell the site, Mr Hale says the parties, as equal partners in the venture, decided to start working at trying to develop the site themselves.  This meant significantly more time was needed to be devoted to the project.  At paragraph 54, Mr Hale says (and I accept) that he used bedroom three in his unit from July 2012 as an office but used other parts of the unit to “spread” his papers and further says:

   “we worked together very closely during the second half of 2013 and the first half of 2014 and travelled together, namely to [Suburb N] and [K Town], including [D Town].  Working closely together achieved a lot.”

   g)The site had a potential for higher density and Mr Hale “worked out a way” to increase the number of units to 23, all with lift access.  He was required to have extensive meetings with the Council Planning Officer.  Mr Hale says that he and Ms Shee sought advice from Mr M, the developer for the unit development, and he referred them to a builder in Suburb N and subsequently they retained an architect in Suburb N;

   h)Although I am satisfied by August 2013 both Mr Hale and Ms Shee were expressing concerns about the development being profitable, they agreed to try and prepare to sell units “off the plan” and solicitors were engaged to prepare the necessary contracts for marketing purposes.  Ms Shee indicated in an email to Mr Hale on 14 October 2013 (Annexure “D”) that if “we can’t launch D Town project by 2/11/13 I want out”.  Ms Shee expressed concerns about having enough capital to see the project through;

   i)By January 2014, after some further disagreements about the appointment (or not) of a project manager, Ms Shee sent Mr Hale the following email:

   “Hi [Mr Hale],

   It is unfortunate that I come to a conclusion that we cannot work together due to difference in our personality.

   I would like to let [Mr O] know tomorrow as curticy [sic] that I will be selling my share and offer him to find someone you both like first.

   I will also, talk to few people I know who may be interested quietly.

   I have great deal of interest and effort I put in this project and even I am out, I would like to see the successful building finished.  Therefore, I will consider very carefully before I make decision whom I am going to sell my share to.

   I will vacate the unit as soon as when I find someone to buy my share, I will know where I am going to be.  Hope that is OK with you.

   Hope you understand my situation and respect my decision to put my health first.

   Kind regards,

   [Ms Shee]”

   (As per original)

   j)The parties agreed it would be difficult to find another partner to take the place of Ms Shee in the development.  Mr Hale says he paid the mortgage payments, Council rates and water rates for the site as Ms Shee was not able to afford to make these payments – although she did pay land tax for one year;

   k)After further work during the first half of 2014 putting a “team” together for the development, by the middle of 2014 the parties had created plans which could be used by a quantity survey and engagement of a builder.  The next major task was arranging finance and despite challenges, finance was obtained and construction began in early 2015.  During the construction phase (which took 16 months), Mr Hale says, and I accept, he visited the site usually weekly, and regularly went back to his farm (some 60 minutes away from D Town) rather than return to Sydney;

   l)By June 2016 settlement on 21 units had been effected.  Although there is evidence that suggests disputes existed about payment of sales commissions to Ms Shee and sharing of commission on unit 4 at around this time (June 2016), further discussions about unit 7 took place.  It is not necessary to make findings about those discussions other than to record that on 25 June 2016, Ms Shee emailed Mr Hale about “distribution of D Town project” (see Annexure “G”) and although the final distribution was not resolved until November 2016 (see Annexure “H”), Mr Hale says on 12 July 2016, without any advance notice, Ms Shee packed some bags and moved into unit 7.  The following day, as Ms Shee indicated would occur, Mr Hale received a letter from solicitors retained by Ms Shee (see Exhibit 12) asserting (at paragraph 2) that on their instructions “our client commenced cohabitation in or about March 2007 and separated in or about November 2015”.  In cross-examination of Ms Shee, she indicated that was not her instructions and that the solicitors got the date wrong.

1. It is clear from the history of this project and the parties’ involvement in it, that they spent significant time in each other’s presence.  This makes the delineation between interactions for business purposes and private or more personal interactions very difficult to achieve.

2. I also accept the evidence of Mr Hale, not seriously challenged by Ms Shee, that he provided significant free advice to her.  Whilst it is inferred that Mr Hale would not provide such advice free of charge unless the parties were in a de facto relationship, I do not accept that premise.  Ms Shee does not suggest that she only sought his advice because they were in a relationship.  My impression is that she respected his expertise.  Discussions about other issues arose in the separate business dealings undertake by Ms Shee – apart from the D Town development.  Mr Hale would ask the Court to accept that his extensive advice (detailed at paragraph 35) was offered to assist Ms Shee and because of an ongoing business connection (confirmed at paragraph 152 of the Applicant’s submission).  I need to weigh up these activities within the context of the whole evidence.

3. In an effort to corroborate their particular perceptions of the relationship after March 2010 and in the context of numerous text messages, emails and phone calls, the Court received many summaries and heard some cross-examination on various events.  On reflection, few of these written exchanges are a “killer blow” in the case.  If anything, they reveal a very fluid relationship that is shaped by a pressure or daily occurrence – only to be given a different context by a later exchange.

4. Whilst much is made of the use of the word “darling” or the affixation of “xxx” at the end of the emails, I have, on reflection, taken the view that such terminology is as consistent with an exchange between people who still care or hold feelings for each other from an earlier intense de facto relationship that Mr Hale says ended in March 2010, as it is a continual expression of the commitment to a de facto relationship and affection that existed and was maintained from 2010 to 2016, as Ms Shee urges me to find.

5. Nonetheless, for completeness, and in circumstances where the lengthy submissions received go into some detail on these issues, I make some observations and findings that follow.

Emails

1. Exhibit 22 supplements emails previously relied upon by Mr Hale and annexed to earlier Affidavits.  I have not counted them but note submissions of Counsel for the Respondent (at paragraph 6.1(vi)) that of the 274 emails passing between the parties, only eight or nine were addressed “Hi darling” and concluded with “xxx” or “love you”.

2. Mr Hale was cross-examined about a number of the emails in Exhibit 22.  Many more emails than eight or nine contained the affectionate terms but many were from Ms Shee to Mr Hale.  The emails reveal the number of business issues they were dealing with.

3. Email number 25 dated 1 September 2014 is relied upon by Ms Shee.  It was sent at a time Ms Shee was in Country E visiting family.  Ms Shee had sent an email on 31 August 2014 mentioning that she “wouldn’t go & buy a ring by myself”.  Mr Hale denied this reference was in respect of a discussion he had with Ms Shee about buying a ring.  His response of 1 September 2014 was in the context of finding his brother dead on 24 August 2014 a few days after Ms Shee had left to go to Country E.  I accept the submission of Counsel for the Respondent that this was a particularly emotional time for Mr Hale.  The email:

   “Darling

   I love you and miss you.

   I know how important it is for you to have this break for your health and to see your mum and sisters and friends.

   I always want to protect you and look after you, as well as LOVE you

   Say a special prayer today

   Xxx”

   reveals an outpouring of emotion.  It represents the most affectionate remarks in the emails.  At this time Mr Hale says he purchased a burial plot for himself, his children (after buying one for his deceased brother on 29 August 2014), and tellingly and without clear explanation, he also purchased a plot for Ms Shee “opposite” the plots purchased for himself and his family members.  I return to this issue below.

4. However these exchanges and actions may be contrasted with the very business tenor email of 5 June 2015 from Ms Shee to Mr Hale (number 31), but also at the end included the following words:

   “You are a good person, and you have been good to [X] which I appreciate it very much.

   You have been good to me but you certainly said & did very hurtful things.

   I do not want to fight, I hope we can agree on what is fair to both of us.”

5. The difficulty with the numerous emails tendered, is that there are large gaps.  The level of communication between these parties and the number of business issues they were involved in individually (in addition to the D Town development) suggests many hundreds of more emails between September 2010 and November 2016 passed.  Selecting a few to advance a particular position, whilst perfectly understandable, has the capacity to distort the picture. Overall, the emails confirm the intense business relationship; and reveal expressions of affection from time to time but are not definitive.

Phone calls

1. The difficulty in looking at telephone logs, is that it does not assist in explaining what was said; how it was said; the context for the discussions and the length of calls is not always a true indication of the importance of the verbal exchange.

2. However the records produced support the evidence otherwise given by the parties of almost daily telephone calls and, at times, more than one call a day during that period.

Text messages

1. Exhibit 21 are text messages offered to the Court as evidence by Mr Hale – and include a copy of a phone message on a phone Mr Hale says he found at the farm.  The text trail suffers, in my view, the same sort of limitations that the email train has, and there is a broad range of topics raised – mostly business orientated but also personal.

2. Text messages numbers 2 to 16 fall within the “second stage” of the relationship.  They do reveal allegations of abuse by Mr Hale towards Ms Shee.  These messages reveal ongoing conflict in that period and Ms Shee asserts a lack of respect for her by Mr Hale (number 15).

3. Text messages numbers 16A to 28 fall within the “third stage” of the relationship (but only to 7 May 2013).  Ms Shee refers to herself as a “tenant” and that “people think we R [sic] in a relationship” (number 16A); expressed concerns about her financial position (number 24A) followed up the next day (14 December 2012 – number 25) with this text:

   “I don’t expect anything from U!

   I didn’t meant 2 nor want 2 put any pressure on U 2 take care of me.  It’s just that I will be 54 years in 2013.  I have a good daughter but I am not in a secure relationship not financially secure enough.  I need 2 find different job 2 make money.  I looked after myself in the past & well, so, don’t worry about me.  It’s just getting old blue with frustrating work! Xx”

   (As per original)

4. At the time of this text message, Ms Shee was paying rent to Mr Hale to occupy part of his unit.

5. Text message 26 is relied upon by Ms Shee to indicate, contrary to the evidence of Mr Hale that after March 2010 the parties only had sex on one occasion – in September 2012.  Although the message contains sexual content, I am not satisfied that it established that Mr Hale’s evidence should not be accepted.

The statutory factors to be considered

First period

1. Even though the parties concede that they were in a genuine domestic relationship for the “first period” from March 2007 to March 2010, to have an understanding of any variations or changes found by the Court, on the evidence, after March 2010, it is appropriate to record, and the Court accepts, that during the first period of the relationship they:

   a)lived together in the unit of Mr Hale at B Street, Suburb C for this period;

   b)shared a bedroom and maintained an active regular sexual relationship;

   c)attended functions together as a couple both of a public nature and with Mr Hale’s family, including his children (Ms Y and Ms Z and his brother Mr J Hale);

   d)attended church together – both being practising Catholics;

   e)spent holidays together including overseas;

   f)were openly affectionate in the presence of others, physically and verbally affectionate towards each other  This was corroborated by the evidence of Ms Y;

   g)regularly spent time together at Mr Hale’s rural property at P town (generally in these Reasons referred to as “the farm”);

   h)discussed their future together including investments to secure themselves financially.  In this respect the decision to purchase the D Town site in December 2009 was a joint decision; owned equally (via two separate family trusts);

   i)although there is no evidence these parties maintained a joint bank account, and during this period they each had real property owned separately, the evidence reveals that:

   i)at times Mr Hale made unsecured small “loans” to Ms Shee;

   ii)Ms Shee trusted Mr Hale and made a loan of $350,000 to him to invest in the share market (which loan was repaid by October 2010); and

   iii)even though the two units in the Unit Trust created to own the D Town development were vested equally, the initial financial contributions by Mr Hale were greater than those of Ms Shee, demonstrating, I find, that at that time they regarded the transaction as a joint long term endeavour (even when contributions were not initially equal).

2. Although the evidence identifies a number of asserted reasons claimed to be the catalyst for the physical separation in March 2010, I am not of the view that it is particularly important to determine which asserted reason was the most significant factor.

3. This is because, even though it is necessary when parties form a relationship of a genuine domestic basis that some joint commitment; some “meeting” of the minds is required, separation or the cessation of an existing relationship can occur by unilateral actions.

4. I find however in this relationship that both parties, for different reasons, regarded the personal relationship of the nature previously enjoyed by both, was at an end.  As the findings made next about the interactions in the second period demonstrate, although I am satisfied that the parties’ separation in March 2010 was not associated with family violence or overt nastiness, and although the residual affection they retained for the other party shaped an ongoing desire to maintain contact, I find that no genuine domestic relationship existed between March 2010 and July 2012.

5. Before setting out my findings in that respect, I identify that some of the reasons asserted to have contributed to Ms Shee leaving the unit she shared with Mr Hale, in March 2010 included:

   a)tensions arising from Mr Hale’s failure to repay the whole of the loan of $350,000 as quickly as Ms Shee expected.  I also find, on the evidence, that Ms Shee did not receive a full accounting for the use of the funds such that she held some reservations about whether or not the funds of hers invested by Mr Hale had made a profit;

   b)Mr Hale says Ms Shee was affected by her chronic fatigue and adversely affected by the medication prescribed which he expressed some concerns about.  Sexual relations, as a result Mr Hale says, were reduced; and

   c)the decision to move out by Ms Shee into her own rented unit also seems, in the some way, to be shaped by the needs of her daughter X who was a student at the time.

Second period

Duration of the relationship

1. This period began in March 2010 and continued to July 2012.

Nature and extent of their common residence

1. During this period, Ms Shee maintained occupancy of a separate unit – firstly at Suburb H and then at the unit she owned at Suburb A.  Although Mr Hale concedes he stayed at Suburb A a couple of times, Ms Shee claims it was five times.  However even if five times in over 28 months, that does not constitute sharing a “common residence”.

Whether a sexual relationship exists

1. Ms Shee’s evidence is that a sexual relationship was maintained.  By the mere nature of such private activity, corroboration is rarely available.  Even though X says Mr Hale’s attendance at Suburb H was “not regular but frequent” she could only make observations at night when she was there.  Mr Hale, when he visited, “mostly he came for dinner, watched television and left” according to X.  This was at the Suburb A unit, which X shared with her mother from December 2010 until she left in or about July 2012 to take up campus housing in Sydney.

2. Mr Hale denies any sexual relations during this period.  On all the evidence, I accept that evidence as more believable.

The degree of financial dependence

1. As during the first period, these parties did not maintain any joint bank accounts.  They owned no property together, other than the business investment at D Town.  Although initially disputed by Ms Shee, she conceded that during this period Mr Hale ceased joint health insurance cover and maintained his own cover from then.  Although they did have meals out and, as referred to below, spent some time together in Canberra in September 2010 for a couple of nights, even if Mr Hale paid for these expenses (and Mr Hale’s credit card statements suggest generally he did), this does not constitute significant financial support to Ms Shee from him.

2. An issue arises as to the basis on which Mr Hale continued to provide regular and extensive free advice and services to Ms Shee.  Ms Shee asks the Court to accept that he did so because this was another way of supporting her.  Mr Hale says he had, from 2007 given free advice to Ms Shee, and that after the separation in March 2010 he had a discussion with Ms Shee about doing so in the future.  Mr Hale says Ms Shee told him she had taken legal advice from a solicitor in Suburb Q about her ability to make a claim against him as a de facto partner.  Ms Shee conceded she took such advice.  Mr Hale says he offered to continue to provide free advice to Ms Shee on the basis that she would make no such claim.  Although any such “waiver” would be unenforceable, the “arrangement” asserted by Mr Hale had the ring of truth.  I accept such discussions took place.

Mutual commitment to a shared life

1. The evidence reveals a number of statements recorded by Ms Shee’s doctor Dr R (Exhibit 5) confirming that Ms Shee had “made decision” and moved address (30 April 2010); the “break up” (21 June 2010); that she was “happy to see Mr Hale but doesn’t want to get back together” (8 June 2011); and after she had moved back into Suburb C, her doctor records that she was “renting Mr Shee’s unit at Suburb C” (21 August 2012)  Ms Shee did not elect to call her doctor to give evidence, a criticism advanced by the Respondent’s submissions.  I accept that the statements recorded are accurate and made by Ms Shee to her doctor at the time.

2. Ms Shee’s lack of commitment to a shared life was evidenced by Mr Hale as well.  Although I accept that:

   a)the parties did attend “couples” counselling;

   b)the parties did attend Ms Z’s wedding on … May 2011 (after being invited separately).  Ms Z says Ms Shee was invited “as she and my father were still friends and business partners and I had been close to her before 2010”.  X was also invited but did not attend.  I accept this evidence.  Ms Shee was not in the official family photos;

   c)Ms Shee asserts, but Mr Hale denies, a marriage proposal was made during this period and that Mr Hale wanted to “reconcile”.  The evidence does not establish this fact to the required standard of proof;

   d)the parties attended together a dinner for their property developer friend Mr M in August 2010, for his birthday.

3. Further consistent, to some extent, with the lack of “reconciliation” and shared mutual commitment, the evidence, which I accept, reveals:

   a)Mr Hale spent more time at his farm and from March 2010 Ms Shee did not attend the farm (even though it was about 60 minutes from the ongoing D Town development);

   b)emails of 8 May 2011 and 13 December 2011 when Ms Shee states the parties were no “longer together”;

   c)not spending Christmas Day together in 2011 as they were “no longer together” (Annexure “Mr Hale 3”);

   d)Ms Shee’s failure to record Mr Hale as a spouse for income tax purposes;

   e)Ms Shee’s decision, although not readily conceded in cross-examination that she joined two dating sites – E Harmony (on … May 2011) and RSVP (on … January 2012); and

   f)The evidence given by Ms Z (at paragraph 10), which I accept, that Ms Shee told her around the time she was moving out in 2010 that “I love your Dad very much, but you know he is difficult and sadly it hasn’t worked”.

4. The significant number of telephone calls; occasions where they had meals together; and use of terms of endearment in emails, I find is more consistent with the ongoing friendship; business connection through the D Town development and the “arrangement” that Mr Hale would provide advice to Ms Shee, than sufficient to establish an ongoing de facto relationship.

5. In the circumstances, I find that no de facto relationship between the parties existed, within the meaning of the Act, between March 2010 and July 2012.

Third period

1. Before I undertake an examination, under the prescribed statutory consideration as I have for the “second period”, I make some findings about the circumstances which caused Ms Shee to return to live in the Suburb C unit in July 2012.

2. Ms Shee asserts that when she returned to Mr Hale’s Suburb C unit it was a “trial” – I interpret as a form of reconciliation.  On my findings, whilst the friendship between the parties had been preserved, the de facto relationship had not continued past March 2010 – some 26 months earlier.

3. It is unclear what the contribution to rent payable by Ms Shee to July 2012 was made by X (if any) however I find that X’s decision to move to a university campus was likely to be a factor in Ms Shee’s decision to rent elsewhere.  Although Ms Shee suggests that Mr Hale had “cash flow” challenges at the time, Mr Hale denies this was the case and the evidence available to the Court does not sustain Ms Shee’s allegation.  In fact, the financial security of Ms Shee, based on her taxation returns (Exhibit 10) reveals a very modest income.  Strangely, the income tax return for the year ended 30 June 2012 (probably most relevant) was not tendered.  Returns for the years ended 30 June 2009, 2010, 2011, 2013 and 2014 were tendered.  The returns (apart from not revealing she had a de facto partner) reveal that her taxable income was:

   a)30 June 2011 - $22,200

   b)30 June 2013 - $20,613 (the major source being gross interest of $18,332).

   During this period Ms Shee had access to the nett proceeds of sale of her Suburb A unit, sold in June 2012.

4. There is no evidence of other options to rent having been investigated by Ms Shee.

5. In July 2012, the parties had been unable to sell the D Town development site.  Thereafter the parties began to devote more time to the project because of their decision to look at developing the site themselves.  I accept Mr Hale’s evidence that he used bedroom 3 as his bedroom and his office from around this time (or shortly after).  In my view, Mr Hale being alert to the potential ramifications of resuming a de facto relationship required rent to be paid.  Ms Shee paid that rent for 12 months to July 2013.  For such payment Ms Shee was entitled to occupy the main bedroom which had an ensuite.

6. Counsel for Ms Shee made the submission that Mr Hale’s failure to disclose, as he said was the case, the income from rent as part of his taxable income, is significant.  In my assessment, Mr Hale’s failure to do so does not change the characterisation of the payment made by Ms Shee and the arrangement reached between them in July 2012 (noting as well that by this date Ms Shee had sold the Suburb A unit).  There is little doubt that Mr Hale was happy for Ms Shee to return to Suburb C however I accept Mr Hale’s evidence that:

   a)Ms Shee connected her own landline telephone to the unit and he had a separate landline phone;

   b)between July 2012 to July 2013 he spent over 50% of his time away from the unit, being at the farm or D Town; and

   c)from the second half of 2013 (noting that by August 2013 the parties decided to try and sell the D Town units “off the plan”), the parties worked closely together on the project.

1. I find that Ms Shee’s decision to cease paying rent in mid-2013 was not because of a change in the relationship with Mr Hale, but rather as Mr Hale asserts because of cash flow challenges Ms Shee was facing at that time.

2. I now consider this third period within the matrix of the statutory considerations.

Duration of the relationship

1. Although Ms Shee returned on or about 25 July 2012 and vacated on or about 12 August 2016 (when she removed her furniture and belongings), the letter from her then solicitors BB Lawyers of 13 July 2016 (Exhibit 12) records their instructions that cohabitation commenced “on or about March 2007 and separated in or about November 2015”.  Ms Shee says the solicitors simply got the date wrong in their letter.  However the evidence establishes that Ms Shee consulted BB Lawyers in December 2015 and it is entirely consistent that such consultation may have occurred when Ms Shee indicated to her solicitors, which she denies, separation occurred earlier in November 2015.  The timing of the letter is also interesting.  I find that it was planned by Ms Shee that the letter to Mr Hale by email on 13 July 2016 coincided with Ms Shee’s decision to move to unit 7, D Town on 12 July 2016 and her notice to Mr Hale that the letter would come the next day.

2. The decision to leave Suburb C also, I find, was influenced by the status of the D Town development.  By June 2016 settlement of 21 units (out of a total of 23 units) had been received and Ms Shee was agitating for a distribution of funds from the project to be made that would provide her with further capital.  It was clear that some “adjustments” were required because of Mr Hale’s greater direct financial contribution to the project.  Mr Hale says that Ms Shee’s decision to remain living in Suburb C coincided with the effective time of the D Town project.  I accept the evidence establishes that to be the case.

Nature and extent of their common residence

1. Ms Shee did reside in the Suburb C unit until 12 July 2016.  However I find they did live “separately under the one roof”, although regularly enjoying meals together and, as I now discuss, maintaining a personal friendship.  In this respect I find that:

   a)Ms Shee occupied bedroom one, and although Mr Hale may have left some of his shirts hanging in the cupboards in that bedroom, he had clearly used that bedroom primarily before July 2012 and nothing turns on their location;

   b)Mr Hale had his own bedroom, which also he used as an office; and

   c)it was convenient to “work together” on the D Town project from the Suburb C unit especially from the second half of 2013.  They were equal business partners on the project and it was their largest business investment at the time, and the commitment to raise finance of over $6M to build the units was a serious decision, with risks involved.

2. Ms Shee contends that Mr Hale told his General Practitioner Dr S, that he was in a “de facto relationship” as at 23 July 2014.  Exhibit 24 is a letter to the solicitors for Ms Shee dated 4 October 2018 which says that although there was no comments in his handwritten notes, it is likely that the details of his patients “social situation” were added on 23 July 2014.  Dr S was offered for cross-examination on his Affidavit filed by leave and sworn on 9 October 2018.  Mr Hale has been his patient since September 1982.  His Affidavit seeks to explain the earlier letter of 4 October 2018 by saying “it is quite possible that the reference to his de facto status had not been updated from an earlier consultation”.  There is sufficient confusion about how the entry was made by Dr S, not to find Mr Hale told his doctor in July 2014 that he was in a “de facto relationship”.  It is noted that the produced consultation notes do not refer to any such discussion at the time between Mr Hale and his doctor.

Sexual relations

1. Whilst Ms Shee claims a healthy sexual relationship was maintained throughout, Mr Hale strenuously disputes this and I find that:

   a)Mr Hale’s recollection of having sex only once during this period (in September 2012) is not likely to be correct;

   b)I accept Ms Shee’s diary note of 25 September 2014 that she felt she had fallen in love “again” and that the parties had “wild sex” is likely to be correct.  This incident seems to be after Ms Shee returned from a Country E holiday and after the death of Mr Hale’s brother;

   c)although Ms Shee says they maintained a healthy sexual relationship to 2015, I am not satisfied that sexual relations, which did occur, was other than spasmodic;

   d)although the parties did spend overnight in the same room at least in:

   i)Canberra Hotel on 18 October 2013; and

   ii)at the Hotel on the Gold Coast for a week from 9 January 2015,

   Mr Hale says sex did not occur on these occasions, and I accept his evidence as more believable.

Degree of financial dependence and independence

1. During this period, after Ms Shee stopped paying rent, clearly she had financial support from Mr Hale by him allowing her to remain in the unit “rent free”.  Again, the credit card records reveal a number of meals purchased by Mr Hale and he acknowledges that many (if not most) were “business related” and that Ms Shee was present.

2. They did seem to share responsibility for grocery shopping during this period - which was a practical arrangement, not unusual for co-tenants for example.  Mr Hale did purchase gifts for Ms Shee – including:

   a)a designer watch, which I find was an arrangement reached concerning a sharing of commission for a sale of one of the D Town units;

   b)Sunglasses and shoes in August 2015;

   c)Allowing his credit card to be used by Ms Shee to purchase some “Lite and Easy” meals and accommodation; and

   d)Christmas presents and birthday presents.

3. One unusual feature of the evidence, is what to make of the unilateral decision of Mr Hale on 23 September 2014 to buy for Ms Shee a “burial plot”.  Ms Shee says, with some force, that this is a clear and compelling example of the parties having a “shared” commitment.  At the time of purchase, Mr Hale says, and I accept, he was still emotionally recovering from the sudden death of his older brother Mr J Hale on … August 2014.  He purchased, after Mr J Hale’s death, burial plots for Mr J Hale, himself and his two daughters.  It was some weeks later that he decided to purchase a plot “across” the road from the family plots for Ms Shee.  I agree this somewhat unusual action is consistent with Mr Hale providing support to Ms Shee (who apart from X) does not have family in Australia – at least in the “after life”.  I weigh this factor into my consideration.

4. During this period, as had been the case since 2007, the parties did not maintain a joint personal banking account or other property (save for the D Town project).

Degree of commitment to a shared life

1. Apart from the purchase of the burial plot, these parties did have a commitment to the finalisation of the D Town project.  However the evidence is that during this period, when distributions were made, they were retained separately.  The final adjustments were effected in or around November 2016 – after Ms Shee had vacated the premises and before she commenced proceedings in April 2017.

2. Although they did continue to socialise for business activities; had private meals out; and shared some of the important family events, I do not find these events, some of which I summarise next, amount to a reestablishment of a de facto relationship, when all the evidence is weighed up.  By way of summary, these events included:

   a)lunch at the RSL, D Town on 16 November 2013;

   b)sharing a lunch on Valentine’s Day in 2014;

   c)celebrating Mr Hale’s birthday with family in December 2012;

   d)spending Christmas together in 2012 with Mr U;

   e)spending New Year’s Eve together with X 2014;

   f)celebration at the home of Mr W on 16 March 2013;

   g)celebrating Christmas 2013 with Mr Hale’s family;

   h)the trip to the Blue Mountains, which I accept was not overnight;

   i)celebration of the first anniversary of Mr J Hale’s death in August 2015;

   j)visit to the D Town site (nearing completion) and celebrating with Mr Hale’s family in May 2015;

   k)attending Ms Y’s engagement party on … January 2016;

   l)celebrating Ms Shee’s birthday in … 2016;

   m)being invited on 22 May 2016 separately, to Ms Y’s wedding to be held on … October 2016 – which Ms Shee did not attend, the parties having separated.

3. Many of these happy events were recorded in photographs or through the credit card statements.  They could, as Ms Shee contends, support a finding of a continuing de facto relationship.  They could, as Mr Hale contends, support a finding of a close personal friendship forged by the history beginning in 2007 and maintained during the significant business enterprise at D Town.

4. However these events do reveal that, during the relationship between Mr Hale and Ms Shee, they did grow close to each other’s children.  X asked Mr Hale to look at one of her assignments.  Ms Shee, as noted, was invited to engagement parties and weddings

5. I accept that the evidence of Ms Z and Ms Y about their perceptions of the relationship; the attendance or not at babysitting opportunities; the conversations they say they had with Ms Shee and observations they made, should be understood to come within a context of supporting their father - however having seen them as witnesses, I regarded them as believable and I apply some weight to their evidence.

Conclusions

1. As I have noted in these Reasons, there is evidence of these parties’ interactions, both electronically and physically which creates a somewhat confusing picture.  I am firmly of the view however that from July 2013 at least, the major focus of their relationship was their business dealings.  It was a significant project and they respected each other’s involvement in it.

2. The actions of bringing to Ms Shee most mornings a cup of tea (but not before 8.00am); the discussions that took place whilst she was in the bath on occasions; the “night cuddles” when they provided emotional comfort, all point in some respect to a return to a deeper personal relationship after July 2012.

3. However the numerous trips overseas for Ms Shee where she was not accompanied by Mr Hale (see submissions at paragraph 1.2.16 of the Respondent) did not allow him to maintain a relationship with Ms Shee’s family in Country E; the uncertainty ensuing from what proposals for marriage were made (notwithstanding the diary kept by Ms Shee which at times proved unreliable), all of which were rejected are examples of other evidence not consistent with their deeper personal relationship.

4. In the end, and accepting that Ms Shee, who asserts the existence of a genuine domestic relationship for this period (and also during the second period) bears the evidentiary onus, I am not satisfied that a de facto relationship between the parties within the meaning of the Act was created or existed for the period from July 2012 to August 2016.

Orders

1. For the reasons given, I make orders as set out at the commencement of these Reasons.

2. I accept, as the submissions of the Applicant’s Counsel correctly contend, that an issue arises for determination as to whether time should be extended pursuant to s 44(6) to allow an application for property division to proceed where the application filed in April 2017 is outside the “standard application period” prescribed by the Act and on the basis of my findings that the de facto relationship that did exist ceased in July 2010.

3. I list the matter for further Case Management Hearing and directions before me in Sydney on 2 April 2020 at 9.30am to hear further submissions as to the further hearing of this application.

4. Although I accept costs applications remain on foot, the determination of any applications which are pressed can be the subject of discussion and further directions (for written submissions for example) during the Court event on 2 April 2020.

I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 18 February 2020.

Associate: 

Date:  18 February 2020