YARDE & HAINE

[2015] FamCA 168

FAMILY COURT OF AUSTRALIA

YARDE & HAINE [2015] FamCA 168

FAMILY LAW – DE FACTO RELATIONSHIP – Application for a declaration regarding the existence of a de facto relationship between 2002 and 2013 – Where the respondent concedes there was a previous de facto relationship but maintains that it ended in 2001 – Where the applicant asserts that the relationship resumed in 2002 – Where the respondent asserts that the parties only maintained a friendship and, for a period of time, a sexual relationship from 2002 – Consideration of the circumstances set out in s 4AA(2) of the Family Law Act 1975 (Cth) – Where no property was jointly owned by the parties – Where it is found that the parties did not have a common residence (with the exception of some months) – Where an exclusive sexual relationship existed – Where it is found that there was no financial dependence or inter-dependence between the parties – Where it is found that even though the applicant desired a commitment to a shared life with the respondent, the respondent did not share that commitment – Application seeking declaration for a de facto relationship dismissed.

Family Law Act 1975 (Cth) Part VIIIAB, ss 4AA, 90RB
Relationships Register Act 2010 (NSW) ss 5, 6

APPLICANT: Ms Yarde

RESPONDENT: Mr Haine

FILE NUMBER: SYC 1161 of 2014

DATE DELIVERED: 18 February 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 9 February 2015 – 11 February 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Gould

SOLICITOR FOR THE APPLICANT: McLachlan Thorpe Partners

COUNSEL FOR THE RESPONDENT: Mr Kearney SC

SOLICITOR FOR THE RESPONDENT: Newnhams Solicitors

Orders

IT IS ORDERED

1. The application filed 3 March 2014 is dismissed.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1161  of 2014

Ms Yarde

Applicant

And

Mr Haine

Respondent

REASONS FOR JUDGMENT

1. Ms Yarde (“the applicant”) and Mr Haine (“the respondent”) had a relationship from 1984. The applicant asserts that the relationship was a de facto relationship for the whole of the time until they separated in November 2001. The respondent does not agree that the de facto relationship extended over the whole period but agrees that there was a de facto relationship at least from April 1997 until July 2001 when he asserts they separated.

2. In 1998, the applicant and the respondent purchased a property at Suburb B (“the Suburb B property”) and lived together in that property until the respondent left in November 2001.

3. On 5 July 2001, the applicant commenced proceedings in the New South Wales Supreme Court pursuant to the provisions of the Property (Relationships) Act1984 (NSW).

4. Those proceedings were ultimately resolved by a Deed of Settlement (“the Deed”) dated 10 October 2001 (as varied by a Deed of Variation dated 30 October 2001) and Consent Orders dated 28 June 2002.

5. The Deed provided for the sale of the Suburb B property, the payment to the applicant, the sum of $ 2,000,000 less 50 per cent of the selling costs, and the balance to the respondent. The Deed contained the usual clauses to the effect that each party was solely entitled to the exclusion of the other of all other property in his or her possession at the date of the Deed and contained mutual releases including releases of any claim pursuant to the Family Provisions Act 1982 (NSW).

6. In the proceedings before me the applicant claims that the relationship between the parties resumed from February 2002 and continued, as a de facto relationship, until June 2013.

7. The respondent disputes that assertion and maintains that the parties, after their separation in November 2001, maintained a friendship and, for a period of time, a sexual relationship, until about June 2013.

8. The issue that is raised for this hearing is whether or not the relationship, which undoubtedly existed between the parties at least from February 2002 until June 2013, was a de facto relationship or whether it had some other character.

9. In the event that the Court determines that the parties lived in a de facto relationship, then, on behalf of the respondent, it is contended that the applicant is estopped from seeking financial relief pursuant to Part VIIIAB of the Family Law Act 1975 (Cth) (“the Act”) by operation of both the order, which was made at the conclusion of the Supreme Court proceedings, and the settlement embodied in the two deeds to which earlier reference has been made.

10. In the event that the Court finds that the relationship could not be characterised as a de facto relationship, it is not necessary to determine the respondent’s contention in relation to the effect of the orders and the deeds made in the Supreme Court proceedings.

the relevant legislation

1. The Act gives the Family Court of Australia jurisdiction to hear and determine property settlement proceedings between de facto couples provided that the relationship between the couple broke down on or after 1 March 2009. If the relationship ended before 1 March 2009 the Court has no jurisdiction to hear and determine an application for division of property.

2. It is common ground that the Court has power to determine whether a de facto relationship existed at a relevant time.

3. If there was no de facto relationship, then the applicant has no claim pursuant to the Act.

4. Section 4AA of the Act sets out the factors to be considered when the Court determines whether or not parties live in a de facto relationship. This section is relevantly set out below:

   Meaning of de facto relationship

   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).

   Working out if persons have a relationship as a couple

   4AA(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.

   4AA(3)No particular finding in relation to any circumstances is to be regarded as necessary in deciding whether the persons have a de facto relationship.

   4AA(4)A court determining whether a de facto relationship exists is entitled to have a 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.

   4AA(5)         For the purposes of this Act:

   (a)A de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and

   (b)A de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.

5. In considering whether the parties to these proceedings, having regard to all the circumstances of their relationship, have had, at any particular time, a relationship as a couple living together on a genuine domestic basis, it is necessary to consider the evidence which relates to each of the relevant subparagraphs of s 4AA(2) of the Act.

6. The matters set out in s 4AA(2) are not exhaustive or exclusive. The section reads, “Those circumstances may include any or all of the following” and therefore, in a particular case, other factors may be relevant and considered.

THE EVIDENCE

1. The applicant relied upon two affidavits sworn by herself on 28 February 2014 (the trial affidavit) and 14 July 2014 and affidavits of six supporting witnesses. After objections were taken in relation to the affidavits, the supporting witnesses were not required for cross-examination.

2. The respondent relied upon an affidavit by himself, and affidavits of four supporting witnesses. Only one of those witnesses was required for cross-examination.

AGREED BACKGROUND

1. Each of the parties had previous relationships. The applicant has two children, now adults, from her marriage which ended in 1976.

2. The respondent had married twice. He has two daughters from his first marriage and an adopted son from his second marriage. The respondent’s second marriage was never legally dissolved. His previous wife died in August 2007.

3. At the time the applicant contends that the de facto relationship commenced, in 2002, the applicant was aged 72 years and the respondent was aged 70 years.

4. The respondent left the Suburb B property in November 2001 and lived in a property at Suburb C which he had purchased without reference to the applicant. The applicant remained living at the Suburb B property for a period of time, negotiating with the purchasers to continue to rent the property.

5. The Suburb B property was sold in February 2002 and the applicant received a sum of a little less than $2,000,000. The applicant negotiated a purchase, off the plan, of a unit in a new development at Suburb D. For the purpose of the proceedings the parties referred to the unit building as “G Apartments”.

6. A few weeks later the respondent purchased a unit in G Apartments one floor above the applicant’s unit.

7. In June or July 2002, the applicant moved from the Suburb B property to a rental property in E Street (“the E Street property”).

8. In July 2002 the applicant and the respondent travelled together in the United States of America and Europe. During this holiday and on all of their subsequent holidays, the applicant and the respondent shared a room and a bed. It is an agreed fact that about 80 per cent of the costs of the overseas travel in which they engaged together was paid for by the respondent.

9. When the applicant returned to Sydney, in about September 2002, she decided to move from the E Street property into an apartment in the F Hotel on the Gold Coast (“F Hotel”) which she rented. The respondent spent Christmas of 2002 with the applicant at F Hotel together with her adult children and their families.

10. There is a dispute as to the amount of time which the respondent spent at F Hotel. The respondent deposes that between 15 March 2003 and 18 May 2003 he spent four days per month in Sydney and the balance of the time at F Hotel.

11. The applicant contends that the respondent spent more time at F Hotel than he admits.

12. The purchases of the two units in G Apartments were completed in about June or July of 2003 and thereafter the applicant lived in her unit and the respondent lived in his unit.

13. The applicant paid for her own utilities and other expenses. The respondent paid for his own expenses.

14. Each year from about 2002 until 2010 the parties travelled overseas together. When they travelled together they shared a room and a bed and had a sexual relationship.

15. Each of the parties had a key and security access card to the unit owned by the other in G Apartments.

16. From about 2006, each of the parties was in declining health. Each consulted medical practitioners and each was hospitalised from time to time. With one exception, that being a medical consultation which took place in New York, the respondent did not attend any of the applicant’s medical consultations and the applicant did not attend any of the respondent’s medical consultations. Each of the applicant and the respondent organised his or her own admissions to hospital treatment and discharges from hospital.

17. From mid-June 2013, on the applicant’s account, the relationship ended. From 1 August 2013, on the respondent’s account, the parties ceased all contact although at Christmas 2013 the respondent sent the applicant a card and a gift.

THE DURATION OF THE RELATIONSHIP

1. The applicant asserts that the parties commenced a de facto relationship not later than March of 2002 and separated in June 2013 or August 2013. There is no doubt that the parties had a friendship for the whole of that period and a sexual relationship for much of the period. The issue for determination is whether that relationship was a de facto relationship.

THE NATURE AND EXTENT OF THEIR COMMON RESIDENCE

1. The only period of the relationship when the parties agree they may have lived in the same premises was during the period from Christmas 2002 until about June 2003. The applicant asserts that the respondent lived primarily with her at F Hotel for the whole period. The respondent says that between 15 March 2003 and 18 May 2003 he spent approximately four days per month in Sydney and the balance at F Hotel.

2. During the period that the respondent lived at F Hotel he also maintained a residence in Sydney at Suburb C.

3. The applicant’s daughter Ms H deposes to having spent Christmas with her children at F Hotel in 2004. She says that they stayed for about three or four weeks and the respondent was living there throughout their stay. That evidence does not assist me to resolve the dispute between the parties about the amount of time the respondent spent at F Hotel from Christmas 2002 onwards.

4. The applicant’s son, Mr I, deposes to the applicant moving to F Hotel after the sale of Suburb B and prior to the completion of G Apartments. He says that on at least five occasions he stayed with his wife and children at F Hotel for a weekend during this period and that most times, when he visited, the respondent was present.

5. In her affidavit sworn 14 July 2014, the applicant annexes a letter addressed to her from F Hotel dated 5 March 2002. She deposes “This has jogged my memory that [Mr Haine] and I had a short holiday at [F Hotel] together around this time, and this was just after we reconciled”. That evidence is not relevant to the applicant’s contention that the respondent lived with her at F Hotel for about 80 per cent of the period from Christmas 2002 until July 2003.

6. The parties agreed that for the period when the respondent lived at F Hotel he paid half of the rent. Tendered in the respondent’s case are two cheque books evidencing the payment of rent between 17 February 2003 and 18 May 2003.

7. Taking the applicant’s version of events at its highest, the parties lived together for most of the period between Christmas 2002 and July 2003.

8. However it is more likely, having regard to the evidence of the respondent’s payment of rent, that he lived at F Hotel between February 2003 and May 2003.

9. It is not disputed that from July 2003 onwards the applicant lived in her apartment and the respondent lived in his apartment at G Apartments.

10. Each had access to the apartment of the other. The respondent agreed that, contrary to his affidavit evidence that he had the applicant’s keys in case of an emergency, he came and went from the applicant’s apartment as he chose. It was the applicant’s evidence that she came and went from the respondent’s apartment at will. However, that fact does not establish common residence.

11. The respondent sold his Suburb C apartment before completing the purchase at G Apartments. It was put to the respondent that the purchase of Suburb C involved a significant payment of stamp duty and he agreed. On behalf of the applicant, it was submitted that the purchase by the respondent of an apartment in the same building as the applicant, is corroborative of his intention to share a residence with her. It is equally consistent with his wanting to live in close proximity to her because of the benefits of their continuing friendship.

12. The applicant did not regard the respondent’s apartment as her home. The respondent did not regard the applicant’s apartment as his home.

13. It was submitted on behalf of the applicant that the respondent, in choosing to purchase an apartment in G Apartments, was giving effect to an intention to establish a common residence with the applicant. I do not accept that submission. His actions were equally consistent with a desire to maintain a close friendship with the applicant but, consistent with his statements to her in June 2001, not to live with her.

14. With the exception of a period of months in 2003, these parties had no common residence.

WHETHER A SEXUAL RELATIONSHIP EXISTS

1. Both of the applicant and the respondent give evidence that a sexual relationship existed between them at least from February 2002.

2. The sexual relationship between the parties was exclusive to each other. Neither had a sexual relationship with any other person.

3. There is a dispute between them about when their sexual relationship came to an end and the frequency of that relationship. The respondent asserts that the relationship ceased to be a sexual relationship seven or eight years ago. The applicant asserts the cessation was more recent. However, in circumstances where from 2006 onwards each of the parties was increasingly beset with medical problems and where the applicant was born in 1930 and the respondent in 1931, I do not place any particular significance on the fact that their sexual relationship may have ceased at some time prior to the end of any relationship between them.

4. Neither party asserts that she or he made a conscious decision to end their sexual relationship.

5. The existence of an exclusive sexual relationship tends to support the contention of a de facto relationship but is not, of itself, definitive.

THE DEGREE OF FINANCIAL DEPENDENCE, OR INTERDEPENDENCE AND ANY ARRANGEMENTS FOR FINANCIAL SUPPORT BETWEEN THEM

1. It is not disputed that the applicant paid, from her own funds, the whole of the purchase price of her unit in G Apartments, and the respondent paid, from his own funds, the whole of the purchase price of his unit in G Apartments.

2. The respondent had significant property and other investments. The applicant was not privy to those investments and had no access to any of the respondent’s investments or to the income which he derived from them.

3. During the time that the parties lived together at F Hotel, they each paid half of the rent and shared general living expenses.

4. With the exception of the April, July and October quarters in 2013, the applicant paid all of the outgoings in relation to her unit and the respondent paid all of the outgoings in relation to his unit.

5. In 2013, in about April, there was a discussion between the applicant and the respondent. The applicant told the respondent that she was unable to afford to continue to pay her strata levies and living expenses and that she was considering selling her unit. The respondent agreed to pay the strata levies for April, July and October of 2013.

6. When the applicant cooked for the respondent in her apartment, she paid for the food. Even when the applicant entertained their mutual friends in her apartment and he was present, she did not ask the respondent for any financial contribution.

7. When the respondent purchased alcohol for the applicant, she reimbursed him for the cost.

8. The parties have never had a joint bank account.

9. Neither of the parties has ever had access to the bank accounts of the other.

10. No money was paid by either party to the other for periodic support.

11. Neither party has made provision for the other in any will which was brought to the attention of the Court.

12. In March 2005 the applicant, finding herself in need of funds, took out a reverse mortgage on her apartment for $444,000. In October 2005 she took out a further reverse mortgage for $200,000. She did not discuss the transactions with the respondent who had no knowledge of them. She did not ask the respondent for financial assistance at this time.

1. In an email dated 25 October 2005 the applicant said to the respondent “I personally do not want any of your money”.

2. The applicant’s finances and the respondent’s finances were entirely separate.

3. With the exception of the payment of three quarters of strata levies referred to above, the only payments that the respondent made on behalf of the applicant were for travel costs.

4. When the applicant and the respondent travelled together the respondent paid about 80 per cent of the costs of their travel. He paid for all their accommodation.

5. The respondent agreed in cross-examination that after a few years of their travelling together, the applicant told him that she could not afford the costs of first class travel and that he said to her “I need you to go with me. I will pay”. Thereafter he paid for the applicant’s airfares.

6. The applicant does not assert that she paid any expenses for the respondent.

7. There was no financial dependence or inter-dependence between these parties.

THE OWNERSHIP USE AND ACQUISITION OF THEIR PROPERTY

1. The applicant and the respondent own no property jointly. They used no property jointly.

2. At relevant times the applicant was the registered proprietor of her unit in G Apartments. She had no other real estate and her personal property consisted of paintings, jewellery and savings.

3. The respondent was the sole registered proprietor of his unit in G Apartments.

4. In 2013 he purchased a home at J Town. He is the sole registered proprietor of that property and there is no suggestion that the applicant was consulted or in any way involved in the purchase. The respondent has significant share holdings. It is not suggested that the applicant was involved in the respondent’s investment strategies or his decision making in relation to his investments.

5. There was no mutual acquisition or use of property between these parties.

THE DEGREE OF MUTUAL COMMITMENT TO A SHARED LIFE

1. The applicant asks the Court to make a declaration that the relationship which existed between the parties from February 2002 until June 2013 was a de facto relationship.

2. There is no doubt that, when the de facto relationship came to an end in November 2001, the applicant very much wanted the relationship to continue.

3. The respondent denies that the parties recommenced a de facto relationship as alleged in 2002 and says that they continued a friendship after their separation but did not live together and that they had consensual sex from time to time.

4. It was the respondent’s case that he characterised the relationship between the parties as a friendship and that the applicant was not satisfied with that categorisation. The respondent asserted that throughout the relationship the applicant sought from him a commitment to a shared life which he was not prepared to make.

5. The respondent asserted that he and the applicant had never had the same view of the nature of their relationship. The applicant repeatedly denied in her oral evidence that the respondent had said to her words to the effect that he was happy to be her friend but that he did not want to live with her. However, the applicant did concede that in 2001 the respondent told her that he did not intend to live with her again.

6. When it was put to the applicant that there was a fundamental disagreement between her and the respondent about the nature of their relationship she said that she was not under any misunderstanding but that she had no concept of what the respondent’s perception was.

7. There is some corroboration of the respondent’s evidence in both the affidavit of the applicant and in email correspondence tendered.

8. In her trial affidavit, in relation to the purchase of their units in G Apartments, the applicant deposes:

   Initially, I was unhappy about his intention to buy in the same building as me, because I felt that he was trying to have all the advantages of a relationship with me (that is, the social companionship, the homemaking (including cooking meals) and sexual aspects to a relationship), but without needing to financially commit to me by sharing the same residence and financially supporting me. I remember expressing those concerns to him and he assured me “I’ll always look after you”. He has often used words of that nature to me throughout the second period of our relationship and I believed him.

9. The respondent denied that he had said the words attributed to him. The respondent gave evidence that he had not, at that time or later, made any provision for the applicant in his will although he conceded that he could have done so.

10. On her own evidence, the applicant was clearly concerned about the respondent’s failure to make a commitment to her in the very early stages of the relevant period.

11. It was the applicant’s oral evidence that she had never wanted to end the de facto relationship with the respondent in 2001.

12. Their differing views as to the nature of the relationship were clearly in the applicant’s mind when she sent a letter to the respondent on 7 July 2006 in which she said:

    I thought it might be easier to discuss the issue of whether you’re my lover or friend in writing. The subject is difficult.

    My understanding of “LOVER” is very simply someone who cares for you loves you and supports you physically and mentally and you share your lives. It should not hinge on a sexual relationship but there should and would be one.
    My understanding of “FRIEND” is someone you know and quite like but that is it. We both have a lot of friends and that is normal.

    It is up to you and what category you wish to place me and I would be interested to talk to you about it.

13. The respondent did not reply to that letter.

14. On 29 June 2007 in an email sent by the applicant to the respondent she said:

    It is now later on Friday evening and I wish I could just go to bed and not get up but of course this will not happen. I have never wanted to place any mental or financial stress on you and have to some degree accepted the tack you have chosen to go. You have made the decision that it is more important to your family and your personal happiness to leave me in the categories of unacceptable.

    I cannot and should not share a room for 8 weeks with a “friend”. This is sharing a bathroom and a bed with a friend who is picking up the room bill. I have no other friend that I would ever want to do this with this is just not what I do or the way and I should need to behave.

    I had it pushed in my face last year in LA that the understanding amongst the Mafia was that we just travel together and that we were not in a relationship and I denied it. I will only travel with you if you accept we are in a relationship tho I am paying 9/10ths of my ticket you are picking up the basic hotel costs. [Mr Haine] if this does not suit you its fine I can no longer live and not be truthful. I am old tired and sick and the only way I can deal with life is the truth. I told you tonight I loved you and always have loved you and have never thought of you as “a provider” and have never done anything to rock the boat.

    I hope you understand this email if not we must go our separates (sic) ways even tho LA wall (sic) be different on our own but we must accept if you are on your own that is just the way it is.

    We are supposed to be having dinner tomorrow night and this is fine and I would be interested in your views on the “Deed”. Love [Ms Yarde]

15. In cross-examination about that email communication the applicant said that she found it demeaning that some of the men with whom the respondent played golf had obviously been told that she and the respondent were not in a relationship.

16. The applicant said that the reference in the email to “the categories of unacceptable” referred to the disagreement between herself and the respondent about his refusal to acknowledge the true nature of their relationship to friends and family and particularly his refusal to acknowledge the relationship to his family.

17. The applicant said that it was her intention to convey to the respondent that she was not prepared to be put into the category of a friend.

18. That email demonstrates that at least in June of 2007 there was a tension between the applicant and the respondent as to the categorisation of their relationship and that the applicant was aware that the respondent categorised the relationship as “friends”.

19. The applicant said that the reference to “the Mafia” was a reference to the male friends of the respondent in the United States of America. She said that one of those men asked her to enter into a relationship with him because it was his understanding that she and the respondent were just friends. If the respondent’s friend had that view it must have come from the respondent. It was put to the applicant that she was indicating in the email that she was no longer prepared to be regarded as a “friend” by the respondent and she replied with words to the effect “I found it unacceptable.”

20. In an email dated 14 October 2008, the applicant said to the respondent:

    This is not an easy one for me to send. Regardless of what you may think I would like you to know I have always loved you and will always love you whatever the future may hold for either of us. How others perceive our relationship does not interest me we are all what we are and we are all different. Have fun today it’s the right sort of day to be with friends.

21. In her oral evidence in relation to this email, the applicant said that she was concerned about the way the respondent’s family perceived their relationship. The applicant gave evidence that the respondent did not introduce her to his family until after the death of his second wife. Although the applicant recalled that the respondent’s second wife had died in 2005 I accept the respondent’s evidence that she died in August 2007. This is a fact more likely to be within his knowledge. Additionally, the applicant in an email dated 18 April 2010 refers to the respondent’s wife “having been dead for two years now”.

22. On 18 April 2010 the applicant sent an email to the respondent in which she said:

    I thought I should write down the litany of events that have occurred in the past four months that have clearly indicated there has been a radical reappraising of our relationship either by you, your daughters, or maybe a combination of both. Starting in November when you found the house you liked paid a deposit and announced it to me after the deed was done by telling me what you had done. Telling me at the same time I will not like it because it has a lot of stairs. I would have thought it may have occurred to you it is now almost impossible for me to climb stairs. [K Town] was to be a family holiday you told me but none of my family were ever invited there not even for a drink even tho since the start of our relationship so many years ago they accepted you and were always helpful and respectful.

    The next issue was in December when [Ms L] had a family Xmas party. I was not included even tho the previous year I was included and bought all the members of your family a gift. You did not even send my children or grandchildren a Xmas card. I sent all your children Xmas and New Year good wishes. No response from [Ms M] [the respondent’s daughter].

    I phoned [Mr N] for his birth day on the … and in the course of conversation I told him I was also having a birthday that week. I sent the twins a birthday card on the … no response and no invitation to their birthday party even tho [Mr Haine] you were the host as the party was held at [K Town]. All your family were there of course. Then I had the big birthday all I warranted was a bunch of flowers and a birthday card even tho on your birthday in … I bought you a beautiful gift and organised and paid for dinner for [Mr O and Ms P] to join us.

    When I asked you had you booked the house again in [K Town] again this year you said not yet but you probably will do so, Of course I presume the same terms and conditions apply.

    You placed everyone several weeks ago in an acutely embarrassing situation when I came upstairs to show you something and [Mr O] and [Ms P] were at the apartment and you were taking them out for dinner they thought I was joining you but of courser (sic) I had not been asked.

    As today’s visit to [Ms M’s] in my opinion you should have said [Ms Yarde] and I usually spend Sunday together is it OK if she comes along. I have said this on many occasions [Mr Haine] in the past and have often refused the invitation if the answer is no. Yes I do understand you like seeing your grandchildren that is normal but why WE cannot pop in impromptu without formal invitations I do not know.

    I am not going back into the dark ages of the early part of our relationship [Mr Haine] when you had a wife and I fully understood you did not want to push it into your children’s faces but the wife and mother has been dead for 2 years now so of course this is not the reason for this “cold war” with [Ms L] and [Ms M]. I would like to know the reason and whose instructions are they acting on.

    You asked me last night did I tell the guy at bridge that I had a boyfriend and I said no at my age I would refer to you as my partner even tho we do not live together or financially support each other …

23. The email concluded:

    You may recollect that I handed this email to you a couple of weeks ago so yes I know you have received it when I questioned had you read it your response was “do not write me any more letters”. The reason I resort to writing is it is impossible to have a conversation with you.

24. In the email, the applicant refers to “Ms M” and “Ms L” who are the respondent’s daughters and to “Mr O and Ms P”, the respondent’s son and daughter-in-law.

25. The reference to “the big birthday” was explained by the applicant in her oral evidence. When the applicant turned 80 years of age, her brother-in-law hosted a birthday party for her. The respondent was not invited to the birthday party. In her oral evidence the applicant said that the party was only for her immediate family. Clearly in her view, that definition did not include the respondent.

26. What is clear from the email is that the applicant was not invited by the respondent’s daughter to the Haine’s family Christmas celebration in 2009 and was not invited to the birthday party in 2010 at which the respondent was the host.

27. The respondent had booked the holiday accommodation at K Town without reference to the applicant and without regard to the fact that it was not a property which she would have physically been able to attend. The applicant’s family was not invited to the holiday house at K Town.

28. The respondent made dinner arrangements with his son and daughter-in-law, Mr O and Ms P, which did not involve the applicant.

29. The applicant complained that the respondent had, on 18 April 2010, accepted an invitation to visit with his daughter, Ms M, despite the fact that the applicant was not invited. It was the applicant’s view that the respondent should have refused the invitation because she was not also invited.

30. In an email sent to the respondent on 6 September 2011 the applicant said:

    [Mr Haine] I think we need to have a conversation prior to Saturday if that is possible. The last few weeks have been more than difficult for me but I decided to say and do nothing prior to Sunday. [Mr Haine] I realised on Sunday when you were extolling the virtues of your children (quite rightly so) your long friendship with the [Qs] (tho it is probably 3years since you have had contact with them) and your wonderful friendship with the Rs over 50 years and the last wonderful birthday you had at [Mr S] and [Ms T’s], your sister and your nephew etc the only person that did not get a mention was [Ms Yarde] and the 60’s and 70’s birthdays. Don the reality of life is you are not prepared to “come out of the closet” tho your children really do not care one way or the other about me they just want to get on with their lives and so they should. I arrived there on Sunday where you never introduced me to your family or the [Rs] and I just walked up cold and introduced myself both to [Mr S] and [Ms Y] and the [Rs]. Your niece and nephew were fantastic loving and warm but I did have to sit thru [Ms R] trying to woo the [Qs], to get their phone no etc to make a dinner date if she could at all costs and ignoring me. I am sorry [Mr Haine] all she had to say was [Ms Yarde] I hope you will come along with [Mr Haine]. [Mr Haine] the decision lies with you what are (sic) future if any is but you must be able to come to terms with spending so much of your life with me and my family and friends. If not just dispose of us as a package. Whatever you decide will be fine but I did have a place in your life and how you define it is up to you [Ms Yarde]

    I would appreciate a response. [Ms Yarde]

31. A number of matters emerge from that communication. Firstly, the applicant remained unhappy about the manner in which the respondent characterised their relationship when dealing with his family and his unwillingness to tell his family what she understood to be the true status of their relationship.

32. Secondly, the applicant had never before met the Rs with whom, in the applicant’s words, the respondent had had a “wonderful friendship” for over 50 years.

33. Thirdly, it is clear from the words “whatever you decide will be fine but I did have a place in your life and how you define it is up to you” that there was no consensus at that time as to the nature of their relationship.

34. Having regard to the applicant’s own evidence and to the contents of her communications with the respondent, I find that it is more likely than not that the respondent refused to make the commitment to a shared life that the applicant so much wanted.

35. The applicant relies upon the extent to which the parties shared their everyday lives. The respondent conceded in cross-examination that their relationship was companionable, that they socialised together, dined together and were affectionate to each other. He conceded that he told the applicant that he loved her. However, he said those were aspects of their friendship.

36. There was an issue about the frequency with which the parties shared meals. The respondent gave evidence that he cooked a barbeque in his apartment once a week and the applicant attended. He disputed her evidence that she cooked for him or they dined out together on most nights but conceded that she cooked dinner for him between once and three times each week.

37. The applicant telephoned the respondent every morning.

38. When the respondent had surgery in 2012 the applicant visited him in hospital.  She was concerned that he would not be capable of looking after himself when he was discharged and engaged in email correspondence with his treating doctor and his children in relation to her concerns and the arrangements for his care. However, she did not do that at his request or with his consent as she makes clear in her email to the doctor dated 6 August 2012 where she says “As you heard I am not allowed to interfere in any of his problems he says he can manage very well by himself”.

39. When the respondent was discharged, the applicant prepared his lunch and dinner for two days and carried the meals to his apartment. Although the respondent said in cross-examination that he started to cook for himself after the third day, he conceded that he had most of his meals in the applicant’s apartment.

40. The respondent conceded that the applicant could have done nothing more to assist him in his recuperation from surgery.

41. The applicant bears the onus of proof. Whilst I am satisfied that the applicant had and demonstrated a commitment to a life shared with the respondent as a couple living together on a genuine domestic basis, I am not satisfied that the applicant has established, on the balance of probabilities, that the respondent shared that commitment.

WHETHER THE RELATIONSHIP WAS REGISTERED

1. The Relationships Register Act came into effect in NSW in 2010. Section 5 of that Act prescribes the circumstances in which a relationship can be registered as follows:

5         Eligibility for registration

(1) Two adults who are in a relationship as a couple, regardless of their sex, may apply to the Registrar for registration of their relationship.
(2) A relationship cannot be registered unless at least one of the adults resides in New South Wales.
(3) A relationship cannot be registered if:
(a) either adult is married, or
(b) either adult is registered under this Act or a corresponding law as being in a registered relationship or an interstate registered relationship, or
(c) either adult is in a relationship as a couple with another person, or
(d) the adults are related by family.

1. There is no evidence that either of the parties was aware of the introduction of the Relationships Register Act in 2010 or aware that their relationship could have been registered.

2. They had lived in a previous de facto relationship without its being registered.

3. There is no evidence that there was any discussion between them of registration.

4. I attach no significance to the fact that this relationship was not registered.

THE CARE AND SUPPORT OF CHILDREN

1. Section 90RB of the Act provides that :

   For the purposes of this Part, a child is a child of a de facto relationship if the child is the child of both of the parties to the de facto relationship.

2. The applicant and the respondent each have adult children from previous relationships. They had no children of their relationship. This consideration therefore does not arise.

3. The nature of the relationship of the applicant and the respondent with the adult children of each of them can be considered in the context of the consideration of the reputation and public aspects of the relationship.

THE REPUTATION AND PUBLIC ASPECTS OF THE RELATIONSHIP

1. In the applicant’s case, her daughter, son, former daughter-in-law, grandson and two of her friends deposed that they regarded the respondent as the applicant’s partner.

2. The respondent was included in the applicant’s family gatherings such as Christmas, Mothers’ Day, birthdays and at least one christening. He was included when she entertained her friends and their mutual friends at her apartment.

3. However, the respondent was not invited to the applicant’s 80^th birthday party hosted by her brother-in-law as has earlier been discussed.

4. The respondent was not so inclusive in relation to introducing the applicant to his family.

5. The applicant did not meet the respondent’s three children until after the death of his second wife in 2007. How long after was not established. The applicant deposed that she purchased birthday and Christmas presents for the respondent’s then adult children from 2008 so I infer that it was in 2008 that she was introduced to them.

6. The respondent gave evidence that his children were invited to the applicant’s apartment on one occasion.

7. The parties often visited Mr O and Ms P and dined with them at least on one occasion to celebrate their joint birthdays.

8. The applicant was invited to the respondent’s 80^th birthday party which was hosted by his children and she attended with the respondent. She attended the birthday party for the respondent’s sister in 2010 and appears in a photograph which depicts members of the Haine family and their partners. However, as has been detailed earlier in these reasons, the applicant was unhappy about the way that the respondent characterised their relationship to his family and about the extent of her involvement in the lives of the respondent’s family.

9. Mr U (“Mr U”), a close friend of the respondent, deposed that after the separation of the parties, he says in late 2000, he did not again see the applicant on any social occasion when he was with the respondent. Mr U said that the applicant did not attend at the respondent’s home at any time when he was there and was not at any social event they attended together.

10. Mr U said that he was aware from discussions with the respondent that the respondent still saw the applicant as she resided in the unit above him in Suburb D. From his discussions he was aware that they saw each other from time to time in that building.

11. Mr U recalled the respondent saying to him words to the effect “I want to avoid being blackmailed again”. Mr U said that during their meetings the respondent would occasionally mention the applicant’s name but always in relation to them living in close proximity to each other.

12. Mr V (“Mr V”), a friend of the respondent, deposed that since they first met in 2002, he has had a social relationship and friendship with the respondent. Mr V said that from time to time the respondent would bring the applicant to lunch or dinner when they attended social events together outside the home. The respondent introduced the applicant to Mr V as “my friend [Ms Yarde]”.

13. Mr V was not aware of the previous de facto relationship. Mr V deposed that at no time whilst he was with the applicant and the respondent was there any mention of them being anything other than two people enjoying each other’s company.

14. Mr V deposed that from his conversations with the respondent he became aware that the applicant had her own apartment in the same building. Mr V said that he and the respondent would have dinner together but that he never attended at the applicant’s apartment.

15. Mr V was aware that when the respondent travelled to the United States of America the applicant would accompany him on occasions. Mr V regarded the applicant and the respondent as friends.

16. Mr W (“Mr W”) met the respondent in the late 1980s or early 1990s when they attended the same country club in Los Angeles. Their interactions were based in the country club where they would play golf every Saturday and have dinner together once or twice during the time the respondent was in Los Angeles.

17. Mr W deposed that he had met the applicant on occasions when she was accompanying the respondent to the country club. Mr W deposed that from his conversations with the applicant and the respondent he was aware that they were not married. He observed that they appeared to be close friends who enjoyed the social activities, dinners and such related to travel.

18. Mr W deposed that at no time whilst he was in the company of the applicant and the respondent was there any mention of them being anything other than two people on holidays enjoying each other’s company. Mr W was aware that the applicant and the respondent shared hotel accommodation in Los Angeles.

19. Mr X (“Mr X”), another member of the country club, deposed that he met the respondent at the country club in 1992 or 1993. Mr X met the applicant on occasions when she accompanied the respondent to the country club. Mr X deposed that he was aware from conversations with the parties that they maintained their own residences in Australia. He deposed that on one occasion when he was dining with the parties the respondent said words to the effect “I need my space, that’s why I have my own place.” and the applicant replied “I need my space more!”

20. Mr X deposed that on one occasion when he asked the respondent where the applicant lived the respondent said to him “Down in Sydney at her house”.

21. The applicant relied upon the fact that Mr X had sent a Christmas card addressed to “Mr and Mrs Haine”. Mr X deposed that his secretary prepares and sends out his Christmas cards to a long list of friends and business acquaintances. He did not know the applicant’s last name and so he requested his secretary to send a card to “Mr Haine and Ms Yarde”. It was the secretary who addressed the card to “Mr and Mrs Haine”. Mr X was aware that the applicant and the respondent were not married. Mr X deposed that he was not aware that the applicant and the respondent were romantically involved but was under the impression that their lives were separate.

22. Mr X was cross-examined. His evidence as to his perception of the nature of the relationship was not challenged.

23. The respondent’s friend, to whom reference was made in paragraph 97 in these reasons, who proposed that he and the applicant have a relationship, believed the applicant and the respondent were friends.

24. The witnesses called on the applicant’s behalf all gave evidence that they regarded the respondent as the applicant’s partner but none of them gave evidence that he had ever referred to her in that way.

25. The applicant relied on a number of envelopes addressed to “Mr and Ms Haine” and to her as “Ms Yarde Haine” as evidence of the public reputation of their relationship.

26. With the exception of Mr X, the persons who addressed those envelopes did not give evidence and therefore it is impossible to know in what circumstances those envelopes were so addressed.

27. It is likely that the members of the applicant’s family and her close friends regarded the relationship between the applicant and the respondent as a couple because this is what they observed.

28. The friends of the respondent who gave evidence regarded the relationship as one of friendship.

29. I am not satisfied that there was only one public reputation of this relationship. It appears to have been regarded in one way by the applicant’s friends and family and in a different way by the respondent’s friends.

CONCLUSION

1. Taking each of the matters prescribed into consideration, I am not satisfied that the applicant has established that the relationship between these parties satisfies the requirement that, having regard to all the circumstances of their relationship, they had a relationship as a couple living together on a genuine domestic basis.

2. Accordingly, the application will be dismissed.

3. In those circumstances I am not required to determine the respondent’s argument in relation to the application of res judicata estoppel.

I certify that the preceding one hundred and sixty (160) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 18 February 2015.

Associate: 

Date:  18 February 2015