TEH & MUIR
[2017] FamCA 138
•10 March 2017
FAMILY COURT OF AUSTRALIA
| TEH & MUIR | [2017] FamCA 138 |
| FAMILY LAW – PROPERTY – de facto relationship – final hearing – where applicant alleged a de facto relationship existed – where respondent denies a de facto relationship – where there is evidence that the parties lived under the same roof – where there were no observations of a commitment to a shared life – where conduct of applicant is inconsistent with a loving relationship – Held there was never a de facto relationship. FAMILY LAW – BINDING FINANCIAL AGREEMENT – where binding financial agreement prepared pursuant to section 90UC of the Family Law Act 1975 (Cth) – where applicant engaged in unconscionable conduct – where respondent suffered from dementia – where applicant engaged in conduct for her own financial advantage – Held binding financial agreement should be set aside. |
| Family Law Act 1975 (Cth) ss 4AA(1), 4AA(2), 4AA(3), 4AA(4), 90RD, 90UC(1), 90UC(2), 90UJ(1), 90UM(h) Family Law Amendment (De Facto Financial Matters And Other Measures) Act 2008 (Cth) |
| Cadman & Hallett (2014) FLC 93-603 |
| APPLICANT: | Ms Teh |
| RESPONDENT: | Mr Muir by his case guardian Ms Becke |
| FILE NUMBER: | ADC | 1922 | of | 2014 |
| DATE DELIVERED: | 10 March 2017 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 24-27 October 2016, 31 October 2016, 1 November 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | In person with the assistance of a Cantonese interpreter |
| COUNSEL FOR THE RESPONDENT: | Ms Hurley |
| SOLICITOR FOR THE RESPONDENT: | Culshaw Miller Divorce & Family Lawyers |
Orders
That there be a finding that the parties were not at any stage in a de facto relationship.
That the financial agreement made 19 February 2015 between the applicant and the respondent be set aside.
That paragraph 2 of orders made 25 June 2014 be discharged and that the balance of any monies remaining in the Trust Account of Culshaw Miller Divorce and Family Lawyers not required for the payment of any outstanding legal fees or any other money in any conveyancer’s or other trust account are thereafter to be made available to the respondent by his case guardian.
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 Teh & Muir 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 Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 1922 of 2014
| Ms Teh |
Applicant
And
| Mr Muir by his case guardian Ms Becke |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
By Amended Initiating Application filed 2 June 2014 Ms Teh (“the applicant”) seeks orders for full and final settlement of property, in particular enforcement of a binding financial agreement. By Response to Initiating Application filed 13 June 2014 Ms Becke (“the case guardian”) as case guardian for Mr Muir (“the respondent”) opposes the application and seeks an order setting aside the binding financial agreement. The case guardian is the respondent’s daughter.
On 15 April 2014 the case guardian was appointed pursuant to an order of the Guardianship Board of South Australia. The case guardian is the sole administrator of the respondent’s legal and financial affairs. The case guardian together with Mr B (the respondent’s grandson) are joint guardians of the respondent’s care and accommodation needs.
On 19 February 2014 the parties entered into a binding financial agreement pursuant to section 90UC of the Family Law Act 1975 (Cth) (“the Act”). The agreement entered into provided at 5.1 that in the event of a breakdown of the parties’ relationship:
[T]he property and financial resources of the parties will be divided as follows:
(a) All properties shall be divided equally among the parties with each other taking 50 per cent (50:50) of all properties. Regardless of whose party’s name [sic] on the title of the assets.
The applicant initiated proceedings on 29 May 2014 in which she sought final orders to enforce the agreement as a binding financial agreement. The applicant’s Amended Initiating Application filed 2 June 2014 sought an addition final order that she receive “… a 50/50 percent of property settlement in accordance with the Binding Financial Agreement”.
The case guardian seeks the following orders:
(1) That the Binding Financial Agreement dated 19 February 2014 be set aside.
(2)That total net proceeds at settlement of the sale of the property located at and known as [I Street, Suburb A] … be disbursed … in the name of [Mr Muir].
(3)Any sums being held in the Trust Account of [C Conveyances] or any other ordered Trust Account be released … in the name of [Mr Muir].
(4)The Legal Guardian be discharged.
(5) That the Applicant do pay the Respondent’s costs of and incidental to this Application.
(6)Such further or other orders as the Honourable Court deems fit.
BACKGROUND
The applicant was born in 1979 and was 37 years of age at the time of trial. She lists her occupation as a home maker/real estate agent. The applicant is of Chinese descent and is not an Australian citizen. She remains in Australia on a bridging visa. She is ordinarily a resident of City D in Asia. She has one child of a previous relationship, E born in 2002 (“E”).
The respondent was born in 1930 and was 86 years of age at the time of trial. He previously worked in a scientific profession. The respondent suffers advanced dementia and is assisted by his daughter who appears as the case guardian.
The respondent met the applicant in about 2003. The applicant and her son spent two weeks at the respondent’s home before returning to City D to live. It is agreed that the parties met late at night in the Adelaide CBD. The applicant and her son approached the respondent in a car park. The respondent was returning to his car following a concert. The respondent attempted to assist the applicant in locating her hotel, but ultimately the pair accompanied the respondent to his home. Following the applicant returning to City D the parties maintained communication via email until in 2010 the applicant returned to Australia with E on a more permanent basis.
It is the position of the case guardian that the parties were not in a de facto relationship and that the applicant and E were “boarders”. The applicant maintains that the parties were in a de facto relationship from 26 January 2010 until 14 April 2014. The applicant says the parties separated due to the family violence perpetrated by the respondent against herself and E.
The case guardian deposes to first noticing changes in her father’s mental health from about 2008. The respondent moved into the case guardian’s home on 13 April 2014 and on 19 April 2014, in a report of Clinical Neuropsychologist Dr F, the respondent was diagnosed as suffering “well established generalised dementia” and “characteristics … most likely those of an early Alzheimer’s disease”. On 16 May 2014 the respondent moved into residential care and on 24 June 2014 he moved into a permanent aged care facility.
Prior to April 2014 the respondent resided at I Street, Suburb A (“the Suburb A property”) with the applicant and E. Upon returning to Australia in 2010 the applicant moved into the Suburb A property. She says the parties relationship developed over time and on 10 July 2012 she and E applied for a Partner (Temporary) (Class UK) visa on the basis of her alleged de facto relationship with the applicant. The visa was refused on the basis that the parties were not in a genuine de facto relationship. The applicant sought review of that decision. On 24 April 2014 the Migration Review Tribunal affirmed the delegate’s decision not to grant the applicant’s visa. The applicant sought judicial review of the Tribunal’s decision and on 30 April 2014 that application was dismissed.
On 21 June 2013 the respondent placed the Suburb A property on the market and on 12 March 2014 he signed a contract for the sale of the Suburb A property for a purchase price of $270,000. Following the appointment order of the Guardianship Board the case guardian registered a caveat on the title of the Suburb A property dated 3 April 2014. The property was subsequently sold and by order of this Court funds were held in trust on account of the parties. By further order the funds were to be paid to the trust account of the case guardian’s solicitor. One half of the monies were provided to the respondent for the payment of debts and legal fees. The residual funds remain on trust pending final determination of the matter.
CHRONOLOGY
| … 1930 | Respondent born. |
| … 1979 | Applicant born. |
| 2003 | Applicant and E travel to Australia from City D. |
| 2003 | Applicant and respondent meet. |
| 29 July 2006 | Applicant acknowledges respondent’s deteriorating health via email communication. |
| 2008 | Case guardian becomes concerned for the respondent’s health. |
| January 2010 | Applicant returns to Australia on a more permanent basis and commences cohabitation with the respondent. Parties commence a relationship (on applicant’s case). |
| 10 July 2012 | Applicant makes application to the Department of Immigration and Border Protection (as it then was) for Partner (Temporary) (Class UK) visa. The application is dismissed. |
| 21 June 2013 | Respondent places the Suburb A property on the market. |
| 4 February 2014 | Applicant attends upon Mr G to obtain legal advice as to the binding financial agreement. |
| 5 February 2014 | Respondent (accompanied by the applicant) attends upon Mr H to obtain legal advice as to the binding financial agreement. |
| 6 February 2014 | Respondent receives written legal advice from Mr H with respect to the binding financial agreement. |
| 14 February 2014 | Applicant receives written legal advice from Mr G with respect to the binding financial agreement. |
| 19 February 2014 | Parties enter into binding financial agreement. |
| 12 March 2014 | Respondent signs contract of sale in relation to the Suburb A property. |
| 14 March 2014 | Respondent attends upon Dr J. |
| 18 March 2014 | Respondent attends upon Dr J. |
| 13 April 2014 | Respondent moves into the home of the case guardian. |
| 14 April 2014 | Relationship ends (on applicant’s case). |
| 15 April 2014 | Appointment of the case guardian by the Guardianship Board of South Australia. |
| 19 April 2014 | Report of Dr F. |
| 24 April 2014 | Applicant seeks review of the decision concerning her application for Partner (Temporary) (Class UK) visa. Decision of the delegate is affirmed. |
| 30 April 2014 | Applicant seeks judicial review of the decision of the Migration Review Tribunal. Application dismissed. |
| 2 May 2014 | Guardianship Board approves sale order in relation to the sale of the Suburb A property. |
| 16 May 2014 | Respondent moves into residential care. |
| 29 May 2014 | Applicant initiates proceedings in the Federal Circuit Court. |
| 4 June 2014 | Matter transferred to the Family Court of Australia. Orders made by Judge Mead directing the applicant to vacate the Suburb A property by 25 June 2014. |
| 5 June 2014 | The caveat lodged by the applicant over the Suburb A property lapses. |
| 24 June 2014 | Respondent moves into permanent aged care facility. |
| 25 June 2014 | Ex tempore judgment delivered by Dawe J ordering the proceeds of the sale of the Suburb A property to be distributed one half to the respondent via the case guardian and one half to be held in an interest bearing account pending final hearing. |
| 30 October 2014 | Various interlocutory orders are made by Dawe J. |
| 27 November 2014 | Applicant files appeal of Dawe J’s orders of 25 June 2014 and 30 October 2014. |
| April 2015 | Decision concerning judicial review is delivered by the Federal Circuit Court of Australia. Application is dismissed with costs. |
| 2 December 2015 | Appeal dismissed by the Full Court of the Family Court. |
| 25 July 2016 | Matter listed for trial. |
| 1 November 2016 | Judgment reserved pending written submissions being received. |
PROCEDURAL HISTORY
The matter came before me for a first day hearing on 1 July 2016. On 25 July 2016 I listed the matter for trial commencing 24 October 2016.
The trial commenced on 24 October 2016 and proceeded for 6 days. On 1 November 2016, being the sixth day of trial, counsel for the respondent delivered final submissions. Judgment was reserved pending receipt of the applicant’s written submissions. The written submissions were received on 14 November 2016. Counsel for the respondent filed written submissions in reply on 16 November 2016.
The applicant relies upon the following documents:-
(1)Amended Initiating Application filed 2 June 2014
(2)Affidavit of the applicant filed 29 May 2014
(3)Affidavit of the applicant filed 21 September 2016
In addition the Court was assisted by a case outline document provided at trial and written submissions received on 14 November 2016.
The case guardian relies upon the following documents:-
(1)Response to Initiating Application filed 13 June 2014
(2)Affidavit of the case guardian filed 19 October 2016
(3)Affidavit of Mr B filed 19 October 2016
(4)Affidavit of Ms B filed 19 October 2016
(5)Affidavit of Dr J filed 21 October 2016
In addition the Court was assisted by a case outline document filed 21 October 2016 and written submissions in reply received on 16 November 2016. Counsel for the case guardian also provided a document addressing objections to evidence and an outline of argument relevant to “objection to first-hand hearsay rule”.
The applicant appeared in person with the assistance of a Cantonese interpreter. The respondent via his case guardian was represented by counsel.
The applicant’s trial affidavit was filed on 21 September 2016. At the commencement of the proceedings paragraphs 5, 6, 7, 9, 10, 12, 13, 15, 16, 18, 20, 21, 22, 23, 27, 28, 29, 30, 46 and 50 were struck out in their entirety. The second sentence in paragraph 11 was also struck out as was paragraph 26 but leave was given to the applicant to adduce further evidence.
EVIDENCE
The applicant
Under cross examination the applicant was challenged as to the extent of her purported contributions to the domestic arrangements within the household. She conceded that she did not contribute any money to the household expenses, but considered that she cooked and that the respondent did the grocery shopping, gardening, home and house maintenance other than some painting that she undertook in order to prepare the property for sale. She considered that the parties sometimes went shopping together.
She was also shown photos of the inside of the Suburb A property. The photos would suggest that the home had not been maintained and were suggestive of chaos and disorder. The clear implication that any assertion by her that she undertook housekeeping duties was demonstrably wrong.
The applicant acknowledged that the photographs displayed the house in an appalling state, but asserted that the photographs were of a snapshot in time, that the mess had been caused by the interference of the respondent and was not in any way representative of how the interior of the house looked on a day to day basis.
The applicant further blamed the police for the mess alleging that when they came to the home in order to enforce the intervention order, they created the mess rather than it being representative of the normal state of the household.
It was put to the applicant that when the house was sold in April 2014 the applicant had already left the property. She says that she did not make any mess and when she vacated the premises it was tidy.
It was put to the applicant that she had neglected the respondent and had taken advantage of his dementia. She was asked if she had ever accompanied the respondent to a doctor’s appointments and whilst she thought she may have accompanied him on one occasion, she was not certain. She conceded that the respondent had significant medical problems including bowel cancer and optical issues, but not on any occasion did she assist in his treatment or medical appointments.
She was specifically asked to outline the extent of her financial contribution. The applicant conceded that between January 2010 and April 2014 she had not been working. She stated that she had savings of between $1,000 and $3,000 which she attributed to funds derived from the Country K government. She was asked why she had received this money but was uncertain as to its provenance.
She was asked to produce the bank statements which would show that the money remained in her accounts on deposit. The applicant was not able to produce any bank accounts.
She was reminded of the order made 30 October 2014 which required the applicant to produce all statements in respect of any bank accounts held in her name or in the name of her son E between 1 January 2014 and 15 October 2014. The applicant conceded that she had only been able to provide a few bank statements, but significantly fewer than would have been anticipated by reference to the order.
A request was made by the respondent’s counsel for the production of documents and at that point the applicant asserted that she was not able to produce any further documents because they had all been stolen. She said that the theft had occurred in July or August 2016 from her rental premises. So comprehensive was the theft that it encompassed all of the discovery documents together with all of the Family Court documents.
It was also put to her that whilst the documents may have been stolen in August 2016, an order was made on 25 June 2014 for her to produce the documents and she did not comply. She also accepted that she did not comply with the further order made on 30 October 2014. Prior to the proceedings she was also reminded that she was required to produce documents and whilst she did not comply, neither did she advise the Court that the documents had been stolen.
The applicant conceded that she had given sworn evidence in the Migration Review Tribunal (“MRT”) hearing that she had overseas bank accounts. She agreed that she had not told the MRT that all the money had been spent. It is her evidence that no money exists now in any overseas bank account either in respect of her son’s name or any account held in her name.
The issue of the financial resources of the applicant was relevant in respect of the proceedings relating to her migration status. There was certainly nothing in any document prepared or submitted by the applicant that admitted that monies held by her no longer existed and had been spent.
She agreed that she had been asked in the MRT to produce bank statements but had not been able to do so comprehensively.
The respondent had put in place a reverse mortgage facility being loan number …41 with L Finance. It is alleged that the applicant withdrew substantial amounts from the account without the respondent’s consent or authorisation. It is her position that the sum of $30,000 was withdrawn from the mortgage account for living expenses and that this money was put into an account in her name and her son’s name for his future education.
Page 77 of the respondent’s trial affidavit is a NAB bank statement for the applicant for the period 24 August 2012 to 23 October 2012. As at 29 August 2012 the balance standing to the credit of the applicant was $1.74. On 31 August 2012 there appears to be an internet transfer into the account in the sum of $2,000. That sum is then immediately debited leaving a balance of $21.74 reducing to $1.84.
On 10 September 2012 there is an internet transfer of $18,000 into the account which is immediately disbursed by internet transfer in the separate amounts of $8,000 and $10,000.
On 11 September 2012 there was an internet transfer of $8,000 and again the amount is immediately transferred out of the account.
The applicant was asked where the money came from and was not able to provide any credible explanation. She was not able to remember either the source of the money but thought that it had come from the respondent. She was not able to remember where the money was directed.
Self-evidently, the applicant was the only person authorised to operate the NAB account.
Page 74 of the respondent’s trial affidavit sets out the transactions on the applicant’s NAB account for the period 14 to 22 January 2012.
By flexi-phone transfer on 22 June 2012 from account number …24 there is a credit of $31,590 transferred into the account. At the time of transfer the credit balance was 89 cents. On the same day the sum of $31,560 was transferred to account number …43 leaving a balance in the account of $26.89. The applicant was asked where the money came from and she considered that it probably came from the respondent. She was unsure as to how it was transferred although she considered that it may have been placed into her account in cash. Clearly, the statement describes an electronic transfer rather than a cash transaction.
It may be that the partial advance by way of withdrawal from the mortgage account of the respondent on 14 February 2012 in the sum of $30,000 represents the source of the money under the control of the applicant.
The order of 30 October 2014 required the applicant to produce copies of her bank statements in respect of all of her accounts, but in particular the accounts that would have enabled the sum of $31,590 to be tracked. The documents were not produced.
Her explanation was not credible and I did not accept the applicant’s evidence that her documents including bank statements had been stolen. I considered that the applicant did not tell the truth and well understood that if the documents were produced they would have disclosed that substantial sums of money had come into her possession emanating from the financial resources of the respondent, but in particular by way of mortgage drawdown.
The applicant’s evidence was appalling and her evidence of being unable to recollect what became of the money the subject of the various transfers was not credible.
A similar enquiry was conducted in respect of banking transactions as appear from the NAB statement for account number …24 at page 81 of the respondent’s trial affidavit which shows internet transfers of $1,000 on 10 June 2013, $7,000 on 17 June 2013 and a credit into the account by internet transfer on 18 June 2013 of $20,000. The applicant was not able to recollect the source of the money, nor could she provide any explanation as to the ultimate destination of the transferred funds.
When the applicant was asked about her employment history, she gave evidence that she had worked in 2015 as a casual or part-time employee. She was paid $10 an hour and the maximum that she earned was between $300 to $400 per week. She started working in about September 2014 and stopped working in June or July 2015. She confirmed that by 2014 she had no money left in her accounts. The applicant was cross examined as to her income since July 2015 when her employment ceased.
The applicant’s response was that she had retained a small amount of money and that she and her son managed to live on $150 per week.
The applicant’s evidence was unconvincing and whilst it was self-evident that she and her son could not have managed financially on $150 per week, she refused to concede that in circumstances where she was not employed she must have had access to other funds. No documents evidencing her employment were produced.
The applicant rejected the direct proposition that her living expenses were supplemented by monies she had retained and accumulated during the period of her friendship with the respondent.
It is the applicant’s case that she met the respondent in July 2003 when she was aged 24 and he was aged 73. The applicant and the respondent met in circumstances where she and her son were lost and the respondent offered to assist her by providing temporary accommodation.
Whilst the applicant returned to City D, she contends that she maintained contact with him from 2003 to 2010 when he purchased flight tickets for the applicant and her son to travel to Adelaide and visit him.
The applicant considered that the respondent was a kind person and she says that her son developed an emotional attachment to the respondent. He had some involvement in teaching the applicant’s son to walk and engaged in various physical activities with him.
The applicant considers that the relationship with the respondent was formalised in January 2010 and that they lived together as a family at his home, the Suburb A property.
The applicant was asked as to the extent of the sexual relationship with the respondent. There is scant evidence on the topic which is confined to paragraph 35 of the applicant’s trial affidavit:-
In fact, the Applicant the first time had a sexual relationship with the Respondent in 2004 when the Respondent bought the Applicant the flight ticket to invite the Applicant to visit him.
The applicant was reminded that she gave evidence at a MRT hearing that she had only engaged in sexual relations with the respondent on one occasion in 2004.
She conceded that in the home the applicant and her son slept in a separate room. Notwithstanding the sleeping arrangements, it was her evidence that she and the respondent had engaged in regular sexual activity. I do not accept the applicant’s evidence. Her affidavit provides little or no detail in respect of the sexual relationship with the respondent, but there is confirmation that whilst she said a sexual relationship commenced in 2004, her evidence in the MRT was limited to one occasion in the same year.
I reject the evidence of the applicant to the effect that there was an ongoing sexual relationship. Even on the applicant’s case, the first occasion of intimacy was conveyed by the respondent to his daughter. There is no further evidence of the respondent communicating to his family that there was an ongoing sexual relationship.
When the applicant commenced living in the respondent’s home the accommodation was shared with a boarder known to her as Ms M.
She did not know the nature of the relationship between the respondent and Ms M but the applicant considered that her relationship with him commenced in 2010.
The applicant had little or no relationship with the respondent’s family. She agreed that she did not socialize with his family or attend at any family gatherings. She did celebrate birthdays with him and it is her recollection that they would go to a restaurant.
She conceded that no other friends ever joined them and acknowledged that whilst the respondent had his own circle of friends, she did not mix with them or ever meet them.
She tempers that concession by her evidence that the respondent was not a social person and he rarely went out.
She had a recollection that on Adelaide Cup Day she and the respondent went to a hotel, had lunch and had a bet on the races. She was not sure whether this happened on every Melbourne or Adelaide Cup Day, but it was her clear recollection that she and the respondent enjoyed these occasional outings.
The applicant was aware of the application to the Guardianship Board which ultimately resulted in his daughter Ms Becke being appointed as his case guardian. The Guardianship Order was made on 15 April 2014. The applicant read the correspondence from the Guardianship Board and notwithstanding that knowledge, took the respondent to the Bendigo Bank to open a joint account. She knew that the respondent’s account had been frozen or closed and it was self-evident that the Guardianship Board Order provided authority to his daughter to manage his affairs.
It was put to her that she was keen for the respondent to open a joint account because all other accounts were now no longer able to be transacted. The obvious enquiry was the motive for opening the account. She denied that there was any ulterior motive and it was her evidence that she did not know what money would go into the joint account. I find that the applicant promoted the opening of a joint account so that she could access money received by the respondent from his own resources, but in particular emanating from redraws made on the reverse mortgage facility.
The applicant admits that the respondent had applied for a second home loan mortgage and says that:-
The Respondent applied the second home loan mortgage and part of the funds shared with the Applicant and the Applicant’s child while the applicant was during the relationship with the Respondent in 2012.
Such is the state of the applicant’s knowledge of the financial affairs of the respondent that she concedes in paragraph 45 that:-
In July 2013, the Respondent considered and agreed to put the house on the market for sale to pay back the high interest of the home loan mortgages and solve the financial issues.
Before the respondent applied for the mortgage, the applicant revealed that she had accompanied him to various same-day loan providers and he had obtained a short-term loan.
The applicant was shown “LLB16” and “LBB17” of the respondent’s trial affidavit which sets out a schedule of all the potential same-day loan providers together with the money that had been obtained.
The applicant was not able to confirm that she had prepared the list. I reject her equivocation on the topic. I find that the applicant is not telling the truth and that she is the author of the schedule and that it accurately records the money obtained.
The total of the short-term loans obtained was $9,294.53.
I also find that the applicant was the recipient of those funds.
There is no evidence to support the contention that the respondent was keen to borrow money by way of short-term credit provision. The interest rate was onerous and the nature of the various transactions namely, multiple loans transacted on the same day, is suggestive of a clear plan to obtain money without regard to the consequences of doing so and whether it represented sensible financial management.
The inference is that the obligation to repay the loans was the catalyst for the respondent transacting a reverse mortgage facility.
The applicant agreed that she and the respondent had been in email communication leading up to her arrival in Australia. Annexure “LBB6” and “LBB7” of the respondent’s trial affidavit contain two emails which provide an insight into the applicant’s deliberation.
“LBB6” of the respondent’s trial affidavit annexes an email sent by the applicant to the respondent on 29 July 2006 in the following terms:-
hi [Mr Muir]
I don’t think that it will work for me as what i only will is a sole owner of the house
and i should be the only one owner of the house and may be you should find a psycologist to check your mental problem are you really got a Pakinson as i don’t think that you are a normal healthy elderly one thing i want to tell you that i cannot imagine that your [Ms Becke] and your son they are older than me a 20 years old and also not a dependant child who is under 18 years old and call me mother it is so disgusted!! Which i cannot imagine or your child they are now still your dependant childs do they need to see a psycologist and i don’t think i will get happy which i cannot accept it
but one thing what i am now trying is going to take a information systems course but it is so expensive as there are the opportunities here you know
one thing i want to ask you that how much is a private aircraft at least which can fly from [City D] to USA if you that please reply me give me an answer because i also want to take a private aircraft to come here which will save so much money and so turific!! can you feel it? at last i felt not happy as you are discriminating me whom i am the Chinese
by love [Ms Teh]
At Annexure “LBB7” an email from the applicant to the respondent of 21 October 2009 appears in the following terms:-
Subject: RE yes or no
hi [Mr Muir]
have you already shit last day or today or how often you go to shit everyday and one thing i have to tell you that in [Country K] there are so much expensive of everything including the tickets and also i have to pay sales taxes 15% so i think that if i cannot receive that 4000 $aud plus 400 taxes around and i cannot come as there are almost the air price are expensive today more and also you don’t understand what i mean so i think that it is so hard for me to come you understand and at last what about your elderly disease PARKINSON do you go to see doctor [Ms Teh]
It was put to the applicant that prior to her arrival in Australia and the date that she says she commenced a relationship with the respondent, she was aware that he may be significantly compromised because of her belief that he had contracted Parkinson’s disease.
Whilst the applicant denied that the emails should be read as suggesting that she was financially motivated, I am satisfied that the communication forwarded by the applicant to the respondent lends no support for the applicant’s contention that she and the respondent commenced a committed and loving relationship in 2010. The email communication is consistent in my finding that the applicant was financially motivated in respect of her involvement with the respondent.
On 17 February 1998 the respondent signed his last will which provided for his estate to be divided equally amongst his children.
The applicant conceded that she assisted the respondent to make a will on 28 March 2012 with N Law, then a further will on 10 April 2012 with O Law and a revised will on 13 April 2012 with P Law. This will is Exhibit “3” in the proceedings.
It provides for the respondent in the proceedings Ms Becke (the respondent’s daughter) to be the executor and trustee of his estate and specifically provides in paragraph 2 as follows:-
2.Should my domestic partner, [Ms Teh] (“my Wife”) and I die together or should we together be presumed to have died, and should the order of our deaths be uncertain, I DIRECT that this Will shall (subject to the law in force at the date of my death or presumed death) be construed and dealt with as if the younger of us died after the elder of us.
Upon his death, the will provided for the applicant to receive 65 per cent of the estate, but if she died with the respondent then the provisions of paragraph 2 would see her share falling into her estate and by testamentary provision to her son.
The applicant could offer no explanation as to why the respondent executed three wills over a period of 14 days with three separate solicitors. Whilst it was put to her that the various amendments had the effect of increasing the applicant’s benefit and entitlement upon the death of the respondent and that the three wills were at her instigation, that contention was denied by the applicant. The applicant’s evidence did nothing to dispel the clear inference that the respondent’s will became subordinate to the wishes of the applicant and that she took advantage of the respondent’s vulnerability and infirmity.
It appears that the applicant downloaded from the internet a draft binding financial agreement. The applicant agreed that the information in the document was included at her instigation. She agreed that schedule A and schedule B setting out the financial position of each of the parties were formulated by her and without the assistance of the respondent.
When asked to consider the contents of the schedules, the applicant denied the accuracy of the information as to the assets held by each of them. She gave no explanation as to why they would not have been other than accurate in circumstances where she had included the information.
It then appears that she took the document to a solicitor and received a letter of report and advice on 14 February 2014 advising of certain amendments that should be made to the agreement before it could be provided to the respondent (and then his solicitor) for his approval.
The correspondence from the applicant’s solicitor confirms that on 22 January 2014 the applicant attended at the offices of her solicitor and sought advice in respect of a visa application. On 29 January 2014 the applicant advised her solicitor that she was now seeking to enter into a financial agreement with the respondent and on 4 February 2014 she attended at her solicitor’s office and provided to him a binding financial agreement which was the first draft agreement. On 12 February 2014 a second draft agreement was forwarded and it is in respect of the second draft that the solicitor provided the letter of advice being annexure “A” to the applicant’s trial affidavit.
The applicant’s solicitor was clearly critical of the terms and conditions of the first draft. There is uncertainty as to whether there has been full and frank disclosure in respect of the relevant assets of the parties and in respect of proposed paragraph 4, the solicitor asks the pertinent question as to how the applicant was able to contribute to the everyday living expenses in circumstances where she had worked part-time but as at the date of the meeting with her solicitor was not employed.
Perhaps of greater relevance are the terms of paragraph 5 which provide that under the agreement and upon separation the applicant would receive a 50 per cent share of the property currently owned by the respondent. The solicitor highlighted that on the applicant’s advice, the parties had lived together for “a comparatively short period of time” and accordingly, the agreement was likely to provide an entitlement to the applicant significantly more favourable than would occur without an agreement.
The solicitor appeared also to be critical of the proposed provisions that would see the applicant not liable for any payment of spousal maintenance as appears in the second draft agreement being a change from the provisions as set out in the first draft agreement.
The applicant was questioned as to her understanding of the extent to which she has made a contribution of a financial nature “to the acquisition, conservation, improvements of the assets of [the respondent]” as provided in paragraph 6 and the mirror provision in paragraph 7 of the draft agreement.
The applicant was not able to give any satisfactory response other than the suggestion that she may have assisted in the painting of some walls and may have paid for paint. The applicant’s evidence was entirely unsatisfactory.
The respondent instructed his own solicitor, Mr H, on 5 February 2014. The applicant accompanied the respondent. The file of Mr H being exhibit “7” in the proceedings discloses that following the initial meeting, a letter of advice was forwarded on 6 February 2014 to the effect that he did not consider that the proposed binding financial agreement was fair in that it paid scant or no regard to the minimal contribution of the applicant (approximately .3 per cent of the total pool). There was no justification for an equal division of the assets between the parties. The respondent instructed Mr H to witness his signature notwithstanding the advice that had been given.
It appears that the various appointments attended by the respondent with Mr H were at the instigation of the applicant. It is important that the applicant agreed that she had seen the letter of advice sent by Mr H to the respondent and was aware of his strong advice that the respondent should not enter into the agreement.
It was put to the applicant that it was not a coincidence that there appeared a level of urgency to concluding the binding financial agreement by reason of the proximity to the applicant’s appearance before the MRT. The tribunal hearing was to consider whether a visa should be given to the applicant that would enable her to remain in Australia. The central issue was whether she was in a de facto relationship with the respondent. She appeared before the MRT on 6 February 2014. The proceedings were then adjourned to enable the applicant to obtain some further information and an interpreter.
The applicant denied that there was any relevance to the timing of the preparation of the binding financial agreement and the hearing. I find that the various drafts had been presented to the MRT by the applicant. The applicant agreed that a copy of the signed agreement was presented to the MRT.
Whilst not relevant to these proceedings, it appears that the tribunal members were concerned that the respondent had no recollection or apparent understanding of the agreement as presented by the applicant.
The applicant was shown a copy of annexure “B” to the agreement and agreed that the reference to her net worth at $1,100 was likely to be inaccurate and that it could have been $10,000 or even $20,000. The applicant was evasive in her response and I can place no weight on her representations.
The further dealings of the applicant became more convoluted following a letter received by her at 7.53am on 31 March 2014 from the Foreign Investment Review Tribunal. The import of the letter was to thank the applicant for her application concerning the proposal to purchase a unit at Q Street, Suburb R. The applicant had clearly made an application to purchase land and given her visa status needed approval to do so. There is some uncertainty as to when the application was made, but the unit under consideration had a sale price of $229,000. It was put to the applicant that it was not a coincidence that the binding financial agreement was signed on 19 February 2014 and the letter of approval from the Foreign Investment Review Tribunal was received on 31 March 2014.
Without the advantage of the potential benefit to the applicant under the binding financial agreement, she admitted that there were no circumstances where she was able to purchase the property for which approval had been sought. The applicant was questioned as to the circumstances by which the respondent sold his home, being the Suburb A property. The applicant denied in any way influencing the respondent in the decision to sell the property, but it appears that the respondent was motivated by concerns that he was no longer able to undertake the maintenance in and around the property and that he had a number of significant outstanding bills that he was not able to pay. There is evidence from the case guardian that he may well have been confused as to the circumstances surrounding the sale.
I consider it likely on the evidence that the applicant influenced the respondent to sell the property in order for her to have ready access to funds.
Significant sums were paid to the Administrative Appeals Tribunal in respect of her application seeking to obtain visa status to remain in Australia. The applicant was not able to produce the relevant bank statements that would have enabled the Court to understand how the applicant was able to access money for the payment of her MRT proceedings and her day to day living expenses. The only conclusion is that there were other bank accounts which had not been the subject of disclosure.
Ultimately, the applicant asserts that the parties separated on 14 April 2014, but her removal from the Suburb A property took place after an order made by Judge Mead on 4 June 2014.
The applicant alleges that the separation was occasioned by the family violence perpetrated by the respondent to her and her son. She denied an allegation that she had struck the respondent or that she jammed his arm in the door.
The case guardian gave evidence that following the making of the interim Guardianship Board Order she and her daughter attended and entered the respondent’s home. She had with her the Order and on her arrival the respondent gave her a quantity of outstanding bills. The respondent went to the applicant’s bedroom and she was overheard to say:-
Where’s the money, where’s the money.
The case guardian observed her father standing in the doorway and the applicant pushing the bedroom door into him. He appeared distressed. Ultimately she removed her father from the home on 13 April 2014 and he commenced living in residential care on 16 May 2014.
The applicant denied that she assaulted the respondent as alleged.
She did not deny the conversation in respect of the provision of money.
The applicant was an unimpressive witness. I consider that her evidence was concocted and contrived. She showed no preparedness to assist the Court in respect of the provision of discovery and in particular her bank statements. I am left in little doubt her evidence of a theft having taken place and her discoverable documents having been stolen, or in some way retained by her landlord, is complete fabrication.
There is little about her evidence that was credible and I was left with the clear impression that she was prepared to do all in her power to take advantage of the respondent for her own financial benefit.
Ms Becke
Ms Becke is the case guardian for the respondent in the proceedings and relied upon her affidavit of 19 October 2016. Her evidence is that she became increasingly more concerned as to the state of her father’s mental health at least eight years ago. Her evidence was that he was forgetful, confused and would often call people by their wrong name.
His current circumstances are such that he is now in a high care secure dementia unit.
In January and February 2014 her father’s presentation was poor.
It was not uncommon for her father to invite strangers into his home. The person known as Ms M stayed in his home from 2005 to 2006. On another occasion he brought home a tourist. To her knowledge her father never charged any of these people rent. A practice also developed that she would bring food and clothes to her father’s home to assist him.
She was cross examined as to the extent of her visits to the home and whilst she could not be completely certain, during the countless visits she had not seen any evidence of sexual relations between the parties, nor did she ever see any indication of affection or closeness of relationship.
She said that she rarely saw the applicant and there was never any observation of the applicant cooking for the respondent.
She was concerned as to her father’s weight loss. She was aware that generally his weight was about 63kg but when he came to live at her home following separation his weight was down to 53kg.
She denied that there had been any comprehensive renovation to the inside of her father’s home. It was her observation that the interior had not been painted and the walls were filthy. Her evidence is based upon her own actions namely, that she washed the walls and undertook some of the housework.
It was her assessment that the house had been poorly kept.
It was her clear recollection that the applicant and her son rarely engaged socially with the respondent’s family and she denied any knowledge of a practice of her father taking the applicant to the beach. She agreed that there were occasions when her father had celebrated his birthday, but it was with his friends rather than with the applicant. Her father never spoke of any celebration enjoyed or experienced with the applicant, nor mentioned that they went out to dinner.
Her father did not say anything about his knowledge of the applicant’s visa status, nor in respect of any changes to his will.
It was her understanding that her father did not know that the applicant and her son were coming to Australia until the day before she told him of her intention to travel to Australia.
She considered that any monies that were withdrawn from her father’s account were at the instigation of the applicant in circumstances where she was aware that her father did not have a pin number, did not know his address nor his bank details. Money however was being withdrawn from his accounts and she was concerned that he may not have understood the nature of any financial transaction.
In the last few years it was her observation that her father did not have a good memory, was forgetful and could not remember family members. He lost his car repeatedly and by 2014 the respondent considered that she had no choice but to seek an order from the Guardianship Board. His house was disgusting and she did not consider that the applicant had expressed any interest or had undertaken any housekeeping. It was after the Guardianship Board gave the respondent authority that she attended her father’s home, cleaned the property and made it presentable for sale.
The respondent was clear in her evidence and was unequivocal in her observations of the state of her father’s home, his deteriorating mental acuity and the lack of any demonstrable relationship between he and the applicant. I consider her to be a truthful witness and prefer her evidence in any circumstance where it conflicts with that of the applicant.
Mr H
Mr H is the solicitor who gave advice to the respondent in respect of the binding financial agreement. His file had been provided to the Court and tendered as an exhibit. He remembered that an appointment had been made for 5 February 2014 and on that date the respondent attended with the applicant and her son. The applicant and the respondent went into his office and it was his recollection that they jointly requested that he witness a binding financial agreement. Whilst he made notes of his attendance, he did not retain a copy of the binding financial agreement, but does remember that his letter of instruction was to the effect that the respondent should not enter into the agreement.
His recollection was that the applicant had downloaded the draft agreement from the internet and the initial draft had been her work without involvement by the respondent. When considering the binding financial agreement, Mr H agreed that there were significant inconsistencies between the information in the agreement and his instructions. His original instructions suggested a relationship had commenced in 2002. The agreement stated that the relationship commenced in January 2010. Furthermore, the solicitors’ notes reveal that the subject property was purchased in 1980, whereas quite clearly it was purchased in 2006. Mr H agreed that he had exercised a significant lack of attention to detail and in hindsight would not have engaged in the process notwithstanding that he was instructed to do so by the respondent.
Dr J
This witness is a general practitioner who consulted with the respondent on two occasions commencing 14 March 2014. The respondent had been a patient of a colleague of Dr J and his care had been transferred to her. She conducted a Mini-Mental Health-State Examination (“MMSE”) designed to assess the cognitive function and capacity of a patient. His score was such that the doctor formed the initial view that the respondent may be suffering from dementia and that his conduct appeared inconsistent with clarity of thought process.
The respondent was referred for expert opinion to a memory clinic on 14 March 2014 with the following referral concerns:-
I am quite concerned about this gentlemans memory as is his daughter. He can forget appointments, or where he has parked the car. He struggles with word finding. He is living with an asian woman who is in her 30s and using him to get residency. She arranged for him to rewrite his wills in her favour. We are concerned about whether he is able to make decisions about his finances and his future. His MMSE was 23/30. I have requested an up to date CT scan and dementia screen.
On 31 March 2014 the doctor received a response from a Geriatrician in the following terms:-
[The respondent] has problems with short-term memory. On cognitive testing today, [the respondent] on MMSE scored 23/30 and on FAB 11/18. He also made a mistake with the clock-face test, placing the hands indicating the incorrect time. He couldn’t tell me the exact date or his address. He told me that he thought the value of his home was $22,000 then corrected it saying $220,000 but then went back to $22,000. He was upset by being tested and has poor hearing as well, possibly influencing the cognitive results.
A general assessment by the Geriatrician was that the respondent had features of mild dementia with the likelihood of Alzheimer’s disease.
There were concerns as to his ability to make decisions in respect of his financial affairs and he was referred to a Neuropsychologist. Following assessment, the report suggested that the respondent presented with “a well-established generalized Dementia” consisted with early Alzheimer’s disease.
It was the clear opinion of the Neuropsychologist that the respondent did not have financial capacity and was not able to manage his finances given his significant memory dysfunction.
Dr J had the advantage of her own observations, those of the Geriatrician and Neuropsychologist and considered that their observations and diagnosis corresponded with her own assessment of the respondent.
Dr J was also asked to consider for how long the effects of dementia had affected the respondent and she considered that if there was evidence that demonstrated he was showing signs of confusion and forgetfulness as early as 2012, then this would be a good indicator of when the respondent had experienced significant cognitive impairment.
The importance of the doctor’s evidence is not merely to highlight the vulnerability of the respondent, but to demonstrate that as at the date of the execution of the binding financial agreement on 19 February 2014, with the date of first consultation on 5 February 2014, it is likely that he would not have been able to understand the nature, effect and consequences of the agreement entered into with the applicant.
Ms B
This witness is the granddaughter of the respondent. Her evidence is of first meeting the applicant in January 2010.
She would regularly attend at her grandfather’s home, usually once per fortnight. On the many occasions that she saw her grandfather she rarely came into contact with the applicant and made no observations of any physical intimacy or affection.
She was a witness to the incident in April 2014 where it is alleged that the applicant was screaming at her grandfather.
To her knowledge the applicant had never joined her grandfather for any special occasion or any social event involving the father. Her grandfather never spoke to her about any outings or social occasions spent with the applicant and every Christmas, Easter, Father’s Day and birthday was spent with the family and in the absence of the applicant.
Ms B was also present on 10 April 2014 and was distressed by her observations of the applicant slamming a door into her grandfather causing him to cry and become distressed.
She was also involved in the significant effort in cleaning up her grandfather’s home. It was her observation that the house and yard were disgusting and had not been maintained or cleaned.
Ms B was challenged by the applicant as to the regularity of her visits. She was not shaken in her evidence and I accept Ms B as a truthful witness and prefer her evidence to that of the applicant where they are in conflict.
Were the parties in a de facto relationship?
The Family Law Amendment (De Facto Financial Matters And Other Measures) Act 2008 (Cth) caused the inclusion of a concept of a de facto financial cause to mean:
(a)proceedings between the parties to a de facto relationship with respect to the maintenance of one of them after the breakdown of a de facto relationship; or
(b)proceedings between:
(i)a party to a de facto relationship; and
(ii)the bankruptcy trustee of a bankrupt party to the de facto relationship;
with respect to the maintenance of the first mentioned party after the breakdown of the de facto relationship; or
(c)proceedings between the parties to a de facto relationship with respect to the distribution, after the breakdown of the de facto relationship, of the property of the parties or either of them; or
(d)proceedings between:
(i)a party to a de facto relationship;
(ii)the bankruptcy trustee of a bankrupt party to the de facto relationship;
with respect to the distribution, after the breakdown of the de facto relationship, of any vested bankruptcy property in relation to the bankrupt party; or
(e)without limiting any of the preceding paragraphs, proceedings with respect to a Part VIIIAB Financial Agreement that are between any combination of:
(i)the parties to that agreement;
(ii)the legal personal representatives of any of those parties that have died; (including a combination consisting solely of parties or consisting solely of representatives); or
(f)third party proceedings (as defined in section 4B) to set aside a Part VIIIAB Financial Agreement; or
(g)any other proceeding (including proceedings with respect to the enforcement of a decree or the service of process) in relation to concurrent, pending or completed proceedings of a kind referred to in any of the preceding paragraphs.
Section 4AA of the Act defines the meaning of de facto relationship in the following terms:-
4AA(1) A person is in a de facto relationship with another person if:
(a)the persons are not legally married to each other; and
(b)the persons are not related by family (see subsection (6)); and
(c)having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has effect subject to subsection (5).
Section 4AA(2) of the Act provides the circumstances that may be relevant to work out if persons have a relationship as a couple:
(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.
Section 4AA(3) of the Act provides:-
No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
Section 4AA(4) of the Act 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.
Section 90RD of the Act provides:-
90RD(1) If:
(a)an application is made for an order under section 90SE, 90SG or 90SM, or a declaration under 90SL; and
(b)a claim is made in support of the application, that a de facto relationship existed between the applicant and another person;
the court may, for the purposes of those proceedings (the primary proceedings), declare that a de facto relationship existed, or never existed between those 2 persons.
Section 90RD(2) of the Act provides:-
A declaration under subsection (1) of the existence of a de facto relationship may also declare any or all of the following:
(a)the period, or periods, of the de facto relationship for the purposes of paragraph 90SB(a);
(b)whether there is a child of the de facto relationship;
(c)whether one of the parties to the de facto relationship made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c);
(d)when the de facto relationship ended;
(e)where each of the parties to the de facto relationship was ordinarily resident during the de facto relationship.
Before the Court is an application by the applicant to enforce the binding financial agreement purportedly entered into by the parties on 19 February 2014. The respondent seeks to set aside the binding financial agreement, discharge all current orders and to provide for the balance of proceeds of sale of the property situate at I Street, Suburb A to be paid into a CBA Pensioner Security account in the name of the case guardian.
The agreement has been prepared pursuant to section 90UC of the Act namely:-
90UC(1) If:
(a)while in a de facto relationship, the parties to the de facto relationship make a written agreement about any of the matters mentioned in subsection (2) in the event of the breakdown of the de facto relationship; and
(b)at the time of the making of the agreement, the parties to the de facto relationship are not the spouse parties to any other Part VIIIAB financial agreement that is binding on them with respect to any of those matters; and
(c)the agreement is expressed to be made under this section;
the agreement is a Part VIIIAB financial agreement. The parties to the de facto relationship may make the Part VIIIAB financial agreement with one or more other people.
Section 90UC(2) of the Act provides:-
The matters referred to in paragraph (1)(a) are the following:
(a)how or all of the:
(i)property;
(ii)financial resources;
of either or both of the spouse parties at the time when the agreement is made, or at a later time and during the de facto relationship, is to be distributed;
(b)the maintenance of either of the spouse parties.
It would seem a fundamental consideration that the agreement entered into between the parties can only be considered as a Part VIIIAB financial agreement if the parties were in a de facto relationship at the time of the written agreement.
The applicant asserts that the parties were, whereas the case guardian, on behalf of the respondent, denies the existence of a de facto relationship.
It is not asserted by the applicant that the agreement was prepared in contemplation of a de facto relationship, nor was it an agreement that was prepared after the breakdown of a de facto relationship.
In Cadman & Hallett (2014) FLC 93-603 the Full Court considered a ground of appeal that asserted that the trial judge had failed to determine that the parties “had so merged their lives that they were for all practical purposes, living together as a couple on a genuine domestic basis”.
Their Honours then said at [40 – 41]:
The phrases used in both the ground and the written submissions seem to have been taken from Jonah v White (2011) 45 Fam LR 460 at [60] and [66].
In dismissing the Appeal from that decision, the Full Court in Jonah v White (2012) FLC 93-522 did not adopt that expression which had been used by the trial judge but rather at [32] and [33] said:
[32]It is immediately apparent that the touchstone for the determination of whether a de facto relationship exists is the finding that the parties to it are a “couple living together on a genuine domestic basis”.
[33]The court may consider the matters to which the following subsections refer in determining that seminal question posted by section 4AA(1)(c). We accept the submission that none of the matters referred to in the section has precedence over any other, nor must all necessarily be found before a finding of a de facto relationship is made.
In Weston v The Public Trustee (1986) DFC 95-032, Young J considered that the proper approach was to split the phrase “a couple living together on a genuine domestic basis” into three component parts namely:
(a) living;
(b) bona fide domestic basis; and
(c) as his wife.
This approach was considered by Powell J in Roy v Sturgeon (1986) 11 Fam LR 271 and at page [274] his Honour noted that:
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 discreet “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 the 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 a woman are living together as husband and wife on a bona fide domestic basis vary from case to case. As I said in D v McA (1986) 11 Fam LR 214, it seems to me that each case will involve the court making a value judgment having regard to a variety of factors relating to the particular relationship…
Such an approach has legislative support by reference to section 4AA(2) and section 4AA(4) of the Act which allows a broad discretion as to the weight that can be afforded to the circumstances that the Court considers most relevant.
Evidence in respect of whether a de fact relationship existed
There is no concession by the case guardian that the applicant and the respondent were ever in a de facto relationship.
It is conceded that the applicant was a resident in the respondent’s home, but the case guardian sets out a history of the respondent allowing strangers to board in his home usually without any requirement of financial contribution.
The applicant considers that the de facto relationship started in 2010 to coincide with her and her son’s arrival in Adelaide. The applicant considers that the relationship came to an end in April 2014 when she either left the premises or was forced to leave.
Whilst the evidence supports a contention that the applicant and the respondent lived under the same roof, the uncontroverted evidence of the respondent’s family is that she and her son remained separate from the respondent and predominantly lived in her bedroom. From time to time the parties may have shared common areas in the home, but I accept the evidence of the family that they did not make any observations that would suggest the applicant prepared meals for the respondent, but rather, they each looked after their own separate meal preparation. It is also relevant that the case guardian made observations as to the somewhat alarming drop in weight from a previous weight of 63kg to 53kg at the time that she intervened in the respondent’s home following the Guardianship Board Order.
The applicant alleged that she and the respondent were in an ongoing sexual relationship. Whilst it is difficult for the case guardian and members of her family to be definitive as to the extent of any sexual relationship that may have taken place, I accept that there were no observations made consistent with an affectionate or loving relationship. No observations were made of any physical contact between the applicant and the respondent save as to the incident where the applicant closed her bedroom door on the respondent’s arm leaving him in a distressed and tearful state.
The applicant gave evidence that their sexual relationship had commenced in 2004 significantly before her arrival in Adelaide in 2010. I am prepared to accept that there was an occasion in 2004 where the parties engaged in sexual relations. I do not accept the applicant’s evidence of an ongoing sexual relationship and certainly not from the time that she considers the parties were in a de facto relationship.
The conduct of the applicant towards the respondent is entirely inconsistent with a relationship underpinned by love, affection and mutual respect. Whilst those factors are not necessarily indicators of the existence of a sexual relationship, the complete absence of those factors would allow me to look critically at the applicant’s claim of an ongoing sexual relationship. Other evidence which casts significant doubt on the general credibility of the applicant enables me to find that no weight can be given to her assertion as to the nature of her relationship with the respondent.
The financial arrangements between the applicant and the respondent were complex. It is probable that the applicant was largely dependent upon the respondent for financial support. The critical distinction is that in this case is that there was no clear understanding between the parties that because of his financial position and circumstances he would provide financially for the applicant and her son. Rather, any financial provision came about by coercion and deceptive conduct on the part of the applicant.
I have found that certainly from 2012 the respondent showed obvious signs of dementia. The applicant had no qualms in taking advantage of the respondent’s diminished capacity as evidenced by the attendance upon multiple same-day credit providers, with the money being utilised by the applicant and not the respondent.
Moreover, I accept the evidence of the case guardian that significant sums of money were withdrawn by the respondent via a reverse mortgage facility at the instigation and contrivance of the applicant.
The applicant has done all that she could to avoid providing her bank statements and details which would have demonstrated the deposit of funds which could only have come from the resources of the respondent. I accept the applicant’s evidence that she had scant employment of a part-time nature and that she came to Australia with little money.
The applicant was motivated to resist discovery because of the obvious inference that would be drawn from evidence that demonstrated substantial sums being deposited into her various accounts and then being transferred from one to the other.
Any financial support was not born of interdependence, but rather, by the deception of the applicant.
I have found that the applicant manipulated the respondent to alter his 1998 will which provided for his estate to be divided between his children, to a will document that inexplicably provided substantial benefit to the applicant and her son. The three wills made in quick succession can be considered an example of the applicant’s greed in causing amended will documents to be prepared, when on reflection, the applicant did not consider she was receiving a sufficient benefit.
The further motivation for the applicant alleging that the parties were in a de facto relationship is to lend support for her visa status that she hoped would allow her to remain in Australia. She was under challenge and the proceedings in the MRT were initially concluded upon a finding that the applicant and the respondent were not in a de facto relationship and her ability to remain in Australia would be terminated.
The applicant was keen to promote any circumstance that might be seen as a counterfoil to the prevailing decision.
The parties entered into an agreement on 19 February 2014 which purported to have been made on the basis that:-
They are mutually committed to a shared life as a couple living together on a genuine domestic basis”. They commenced their relationship in January 2010, have a common residence at [I Street, Suburb A], SA, … and a degree of financial dependence or interdependence.
The preparation of that document was at a critical time in respect of the MRT proceedings.
The basis upon which the agreement was purported entered into was demonstrably disingenuous.
According to the applicant, the parties separated in April 2014 and in March 2014 the applicant obtained approval from the Foreign Investment Review Tribunal in respect of the purchase of a property in the sum of $229,000. There was no circumstance where the applicant had the financial ability to purchase that property, nor was there any evidence that the applicant and the respondent were considering the sale of his home and the purchase of the applicant’s intended property. The applicant kept her plans secret and it is a logical and inevitable conclusion that her ability to purchase the property could only have occurred by her receiving 50 per cent of the respondent’s property pursuant to the agreement.
As discussed, the agreement was replete with error and omission. Its terms and conditions bore little connection with the true circumstances of the parties. There had been no financial contribution by the applicant to the respondent’s property, or in respect of any improvement of his financial circumstances. The contrary position is supported by the evidence namely, that the respondent’s financial position worsened by the borrowings made by the respondent at the instigation of the applicant.
The applicant was not able to present any evidence that established that she and the respondent had made a commitment to a shared life. There was no evidence of any social engagement outside of the home and a strong theme through the proceedings was the close relationship that the respondent had with his family and the complete lack of involvement by the applicant in any family event, occasion or celebration.
Whilst there is some scant evidence that from time to time the applicant and the respondent may have enjoyed a restaurant meal or a pub meal, the evidence is so scant that it attracts little weight.
A significant period of the time that the applicant alleges the parties were in a de facto relationship occurs when the respondent is clearly suffering from dementia and likely exhibiting the symptoms of Alzheimer’s disease.
I accept the evidence of Dr J that in her opinion and certainly for all of 2014, but likely from 2012, the applicant’s cognitive functioning was significantly diminished and he may not have known the nature and quality of acts undertaken by him, in particular causing the withdrawal of money from his mortgage account and its provision to the applicant.
The applicant did not attend with the respondent on any medical or other appointments and she showed little or no interest in his level of functioning or his general health.
Making appropriate allowances for linguistic difficulties, the email correspondence forwarded in 2006 and 2009 by almost the total lack of respect shown by the applicant to the respondent and what could only be described as an excessive focus on demanding that the respondent provide for her financially. The tenor of that correspondence continued through the period that they lived under the one roof and is clearly inconsistent with even the most circumspect of committed relationships.
I accept the evidence of the case guardian and her daughter as to the state of the premises. It was unkempt and dirty. The applicant expended little or no effort in what might be described as a housekeeping role, consistent with my finding that she had little or no regard for the wellbeing of the respondent.
When the respondent’s family finally intervened in April 2014 he was clearly in a distressed, dishevelled and confused state. His general health was poor and such was his level of impairment that he required the more intensive care only able to be provided by a nursing home. Such was the poor quality of the respondent’s life at that time that it is open to find that it exemplified the respondent’s predicament for a substantial period prior to the Guardianship Order. The evidence supports my finding of serious misconduct by the applicant with her deception motivated on a focus on obtaining money from the respondent’s property in circumstances where she would otherwise not be entitled to do so.
Whilst critical of the respondent’s solicitor in terms of his conduct in assisting with the financial agreement, his letter of advice suggesting that the respondent should not enter into the agreement is accurate in that it highlights the applicant’s contribution to the parties’ property pool was about 0.3 per cent of the total.
I find that the respondent did not accept the advice of his solicitor because he did not have the cognitive ability to do so.
His impairment was obvious to the applicant and her conduct suggests that she took advantage of his susceptibility to her requests for money, to alter his will and to enter into a financial agreement.
Accordingly, I find that a de facto relationship did not exist between the applicant and the respondent.
Unconscionable conduct
It is a relevant consideration as to whether the conduct of the applicant could amount to unconscionable conduct for the purposes of section 90UM(h) of the Act namely:-
In respect of the making of a Part VIIIAB financial agreement – party to the agreement engaged in conduct that was, in all the circumstances, unconscionable.
In Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447, Dean J said:-
Unconscionable dealing looks to the conduct of the stronger party in attempting to enforce, or retain the benefit of a dealing with a person under a special disability in circumstances where it is not consistent with equity or good conscious that he should do so.
A number of elements assist in the application of the doctrine:-
(a)The weaker party must at the time of entering into the transaction suffer from a special disadvantage;
(b)The special disadvantage must affect the weaker party’s capacity to judge or protect his or her own interests;
(c)The stronger party must know of the special disadvantage;
(d)The party must take advantage of the opportunity presented by the disadvantage; and
(e)The taking of the advantage must have been unconscientious.
I have found that not only was the respondent suffering from a significant disadvantage or disability namely, dementia and demonstrable symptoms of Alzheimer’s disease, but that the applicant was aware of his impediment and his susceptibility to her demands.
The respondent had little idea as to his financial position and in his dealings with his General Practitioner in March 2014 demonstrated a lack of recognition as to the ownership of his home and its worth. Against the backdrop of his compromised understanding, the applicant inveigled the respondent to undertake a number of actions which had no alternative rational explanation other than for her own financial advantage but to the disadvantage of the respondent.
There was no sense or explanation as to the conduct of the respondent in the presence of the applicant in undertaking a raft of payday loans. The respondent had no ability to repay the money and I have found that he was unlikely to have understood what he was doing, the amount involved or what the money would be used for. The manner in which various loan providers were approached over the space of one day is difficult to understand unless promoted by the applicant and her desire to secure funds at whatever cost.
There is little sense nor justification for the various changes of the respondent’s will in favour of the applicant, nor could it be said that the respondent was assisted by entering into the reverse mortgage facility with substantial sums having been withdrawn and paid to or taken by the applicant for her own benefit.
The deceptive nature of the applicant’s conduct is demonstrated by her refusal to supply documents that were clearly in her possession, power or control.
The binding financial agreement was entered into at a time when the applicant knew that the respondent had little or no idea of what he was signing. There is some evidence to suggest that the respondent thought he was signing an immigration document. The evidence of the respondent’s solicitor was unsatisfactory and whilst his advice was ultimately correct namely, that the agreement was not in the interests of the respondent, it ignored the very significant infirmity and disadvantage under which the respondent laboured as an explanation for his advice being ignored.
CONCLUSION
Accordingly, I find that the parties were never in a de facto relationship and as a result of that finding the agreement is not binding pursuant to section 90UJ(1) of the Act.
Further, or in the alternative, pursuant to section 90UM of the Act the financial agreement should be set aside.
I propose to discharge the relevant provisions of the order made 25 June 2014 with the effect that any funds remaining in the Trust Account of Culshaw Miller Divorce and Family Lawyers not required for the payment of their legal fees is to be forthwith made available to the respondent by his case guardian.
I make orders that appear at the commencement of these reasons.
I certify that the preceding two hundred and eight (208) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 10 March 2017.
Associate:
Date: 10 March 2017
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Contract Formation
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Remedies
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Fiduciary Duty
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