Craig v Keith

[2017] NZHC 1720

ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF PARTIES. ORDER PROHIBITING SEARCH, COPYING OR INSPECTION OF THE COURT FILES IN RESPECT OF WHICH THIS JUDGMENT HAS BEEN GIVEN WITHOUT LEAVE OF A JUDGE ON AN APPLICATION MADE ON NOTICE TO ALL PARTIES. THIS IS AN ANONYMISED VERSION OF A JUDGMENT AND MAY BE PUBLISHED IN THIS FORM.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2015-404-002831 [2017] NZHC 1720

BETWEEN

CRAIG

Appellant

AND

KEITH Respondent

Hearing:	29 June 2017
Counsel:	V A Crawshaw for the Appellant J Hosking for the Respondent
Judgment:	25 July 2017

JUDGMENT OF DUFFY J

This judgment was delivered by me on 25 July 2017 at 1.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

Anderson Creagh Lai, Auckland

Grove Darlow, Auckland

V A Crawshaw, Barrister, Auckland

Jo Hosking, Barrister, Rotorua

CRAIG v KEITH [2017] NZHC 1720 [25 July 2017]

[1]      The appellant, Mr Craig, appeals against a decision of the Family Court awarding the respondent, Ms Keith, spousal maintenance.

[2]      A core issue in the Family Court’s decision was the finding that the parties had been in a de facto relationship of three years’ or more duration.   Mr Craig accepts they were in a de facto relationship, but he contends it was a relationship of short duration.

[3]      Whether  the  relationship  is  one  of  short  duration  or  not  determines  the relevant legal test for whether spousal maintenance should be ordered.  If the Judge was wrong to determine the relationship was not one of short duration, he will have applied the wrong test  for the award of spousal maintenance.    In this way the correctness of the Judge’s decision on the duration of the relationship is pivotal to the outcome of the appeal.

[4]      In addition to the appeal Mr Craig made an interlocutory application seeking leave to adduce additional evidence.  However, he abandoned this application at the appeal hearing.

[5]      For the reasons given below I am satisfied the Judge made an error in the course of making his decision on the relationship’s duration.   The parties acknowledged that if  I formed this view it would be necessary for the spousal maintenance award to be set aside and for the question of such award to be referred back to the Family Court for re-consideration.

Maintenance awards made in the Family Court

[6]      Following  separation,  Ms  Keith  applied  for  spousal  maintenance  on  28

March 2013 seeking both interim and substantive spousal maintenance orders.  An order for interim spousal maintenance of $6,000 per month was made on 26 July

2013.1   Mr Craig appealed that decision.  His appeal was dismissed on 12 November

2013.2

[7]      On 28 October 2015 Judge Burns in the Family Court ordered Mr Craig to pay  past  spousal  maintenance  and  future  spousal  maintenance  to  Ms  Keith.3

Mr Craig appeals this decision.  The appeal is wide ranging.  He appeals the finding that the relationship was not of short duration; the finding that he is liable for maintenance; the duration of the maintenance order; and the quantum of the order.

[8]      On 2 December 2016 Judge Ellis in the Family Court ordered that the sums ordered by Judge Burns be paid as one lump sum of $398,770.55, but ordered a stay of enforcement for a period of six months.4     The Judge noted that counsel for Mr Craig was confident in her submission that the appeal should be brought on for hearing in the first quarter of 2017.

Facts relating to the duration of relationship

[9]      The parties “met” on an online dating website on 19 August 2009.  Ms Keith

was living in Auckland.  Mr Craig was living in Hamilton.

[10]     At the time that the parties met, Mr Craig was doing contract work and living off his investments.   He was doing work for [redacted material] and became the Managing Director in February 2010.  Ms Keith was on an unemployment benefit. Before she met Mr Craig, Ms Keith’s evidence was that she had worked as a Product Sales Manager and as a temporary office administrator, but was made redundant shortly before meeting him.  She said she had also previously worked as a real estate agent.  Ms Keith managed a number of residential investment properties that were owned by a limited liability company controlled by her family trust.

[11]     The parties met in person for the first time on 21 August 2009.  On 27 August

2009 the parties travelled to Rarotonga for four nights.   While in Rarotonga they conceived a child.

[12]     The parties became engaged on 9 September 2009.  On 30 September 2009

Ms Keith discovered she was pregnant. Ms Keith’s evidence was that the parties

were in a de facto relationship from at least late September 2009.  The nature of their

relationship in this period, such as the amount of time spent at each other’s houses,

was disputed.

[13]     On 1 May or 1 April 2010 the parties moved to a rental property in Auckland (“the Auckland apartment”).  There appears to be some dispute or misunderstanding about the date.  Judge Burns stated that this occurred on 1 April 2010.  On appeal Mr Craig’s counsel argues that this was an error and that the correct date was 1 May; however, 1 April is the date given in an affidavit of Mr Craig dated 27 May 2013. Mr Craig’s position is that the de facto relationship commenced at this time, when the parties moved in together and commenced living in an exclusive residence.

[14]     The parties’ daughter was born on 21 May 2010.

[15]     On 28 January 2011 the parties purchased a house in Torbay which became the family home.

[16]     On 21 November 2012 the parties’ son was born.

[17]     The parties separated on 13 February 2013.  Ms Keith vacated the home in

Torbay between 6 and 7 June 2013.

District Court decision

[18]     It is relevant to note that Mr Craig was self-represented at the substantive hearing in the Family Court, although he had previously been represented and is represented now.

Duration of the relationship

[19]     The  first  issue  that  Judge  Burns  considered  was  whether  or  not  the relationship was one of short duration (three years or less).  There was no dispute the parties separated on 13 February 2013.  The issue was, therefore, when the de facto

relationship commenced.5

5 At [19].

[20]     In determining this issue, the Judge considered the factors set out in s 2D(2)

of the Property (Relationships) Act 1976 (PRA):

(2)       In determining whether 2 persons live together as a couple, all the circumstances of the relationship are to be taken into account, including  any  of  the  following  matters  that  are  relevant  in  a particular case:

(a)      the duration of the relationship:

(b)      the nature and extent of common residence: (c)     whether or not a sexual relationship exists:

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

(e)      the ownership, use, and acquisition of property:

(f)       the degree of mutual commitment to a shared life: (g)       the care and support of children:

(h)      the performance of household duties:

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

[21]     The Judge noted that the duration of the relationship was in dispute and so did not assist in resolving the issues.

[22]     The Judge set out the facts relating to the nature and extent of a common residence.   Ms Keith’s position was that from September 2009 she began staying with Mr Craig at his home in Hamilton or he would sometimes stay at her home in Auckland.  In the early stage of her pregnancy they remained living in Hamilton, as she did not want to travel up and down between Auckland and Hamilton.  Then, in April/May 2010 they moved in together in the Auckland apartment.   The Judge considered Mr Craig did not really dispute the above assertions of fact, but his position was that any de facto relationship did not commence until at least April

2010 when the parties moved to the Auckland apartment.   The Judge identified a

“grey period” between the parties between September 2009 and April 2010.

[23]     The Judge held that it was common ground between the parties that a sexual relationship commenced very shortly after they met and that the relationship was very passionate.

[24]     In relation to financial dependence or interdependence and any arrangements for financial support, the Judge held that there was little financial dependence or interdependence between September 2009 and May 2010 but there was from that point until separation. The Judge recorded his reasons for that finding:6

In paragraph 9 of Ms Keith’s affidavit of 28 May she said that she relied on income from the unemployment benefit although she said that she did not think the respondent was aware of her unemployed status. She said that Work  and  Income  New  Zealand  (WINZ)  were  made  aware  of  the relationship and that she had been overpaid during this period; firstly from her own error and obviously misunderstandings about information she provided them. This was quite a significant issue for Mr Craig during the hearing and he emphasised that he ascertained after they separated through discovery that she had been in receipt of an unemployment benefit for approximately a year after they had met. He considered that she deceived WINZ and had not been upfront with him about that situation. He objected because he had supported her during a lot of that period. Ms Keith said that she in fact had said to WINZ exactly what the situation was and there had been  no  deception  with  the  department.  For  my  part,  I  have  not  been provided with the WINZ file. I am surprised that Mr Craig did not seek it because it may have contained relevant information as to what Ms Keith said to the department including how she regarded their relationship. It does seem on Ms Keith’s own evidence that she remained financially independent from Mr Craig until about May 2010 shortly after the birth of their child when it is acknowledged by Mr Craig that he gave her access to his account. He did pay her credit card debt. In terms of her own property, which it is now clear that there were a number of rental properties owned through trust companies, she did not share any income from these properties with Mr Craig. It is clear that she saw his role as providing income and support and her role was to give birth to their children and look after them.

[25]     In relation to the ownership, use, and acquisition of property the Judge held that there was use of a common property but possibly not acquisition or ownership as there was no evidence that Ms Keith paid any money towards the acquisition of any property.

[26]     The Judge held that there was clearly a mutual commitment to a shared life for a period of time.  The Judge noted that they held each other out as a couple, and the engagement was a public announcement of a commitment to a shared life.

[27]     In relation to care and support of children the Judge held that while most of the care of the children was undertaken by Ms Keith, Mr Craig was also involved and provided care.

[28]     In respect of performance of household duties the Judge recorded “Ms Keith said that there was a role division between them and she took the bulk of responsibility for the household duties”.7

[29]     At paragraph [25], the Judge concluded there was a de facto relationship of

over three years, “for the above stated reasons and in addition as follows”.

[30]     Before dealing with the following additional reasons, I note that the “above reasons” to which the Judge had referred was his analysis of each of the indicia set out in s 2D(2).  When the analysis of each of the indicia is considered, on occasion the  facts  were  neutral  in  terms  of  pointing  to  when  a  de  facto  relationship commenced.  Whilst on other accounts they were not, the Judge did not attempt an assessment of the various indicia with a view to identifying which way they weighed in terms of when the relationship commenced.

[31]     Indeed, his conclusion at the end of the indicia was that it was for him still to determine whether between September 2009 and April 2010 the parties were in a transition from a courting couple to a de facto relationship.

[32]     I do not therefore see the Judge’s analysis of the individual indicia prior to paragraph  [25]  of  his  judgment  as  revealing  reasons  that  would  lead  to  the conclusion the de facto relationship was one of over three years’ duration.

[33]     After considering the indicia set out in s 2D(2) of the PRA, the Judge went on to observe that on 15 October 2009 Mr Craig had given Ms Keith an expensive engagement ring.  On 1 November 2009 he loaned her an expensive wrist watch.  He gave her an expensive wrist watch for Christmas in 2009.   The Judge posed a question whether this was the conduct of a couple who were courting each other prior to entering into a de facto relationship, or whether they had entered a de facto relationship virtually straight away after meeting.

[34]     The Judge then gave additional reasons for his conclusion, including that there would have been research and preparation prior to the move to the Auckland

apartment, and that the engagement and the expensive ring in October 2009 were a public declaration of a mutual commitment.   The Judge also considered that the parties  had  shared  each  other’s  homes  between  September  2009  and January/February 2010.  On this point the Judge stated:8

I accept the applicant’s evidence on this point because the respondent contradicted himself.  He acknowledged a very passionate relationship and said that she did not come to Hamilton very often. I find this improbable when looking at all the facts particularly combined with the engagement announcement and the gifts given earlier and at Christmas.

[35]     The Judge also took into account that Ms Keith was pregnant within the first month of the relationship and would have been heavily pregnant by February 2010. The Judge noted that Mr Craig was pleased about the pregnancy and this would have enhanced his commitment.

[36]     The Judge referred to the “possible contradiction” in Ms Keith’s evidence

insofar as there was evidence she remained on the unemployment benefit until May

2010, which was not consistent with her commencing a de facto relationship before that date.  However, Ms Keith said that she told WINZ of her relationship in October

2009, and Mr Craig:9

… [had] no evidence to contradict that.  He could have obtained the WINZ file but has chosen not to do so. The applicant has chosen to give evidence knowing that that file could become available to the Court. It is unlikely that she would have committed perjury knowing that fact.

[37]     In fact part of the WINZ file was in evidence.   This did not record that Ms Keith had advised WINZ earlier than May 2010 of her being in a de facto relationship with Mr Craig.  Ms Keith said she told WINZ verbally when she visited the WINZ office in December 2009. There appeared to be no record of this.

[38]     The Judge also found that Mr Craig and Ms Keith were mature and made significant decisions early in the relationship.

[39]     Finally  the  Judge  noted  that  Mr  Craig  accepted  that  the  relationship

commenced on 1 April, six weeks short of three years, and stated “I consider he

8      At [25(c)].

9      At [25(e)].

misrepresented the evidence in his desire to get the relationship under three years”.10

Regarding this finding, the Judge identified no evidence to support Mr Craig having “misrepresented the evidence”.   The case for Ms Keith was not conducted on the basis Mr Craig had “misrepresented” his evidence to bring the relationship within a three year span.  Accordingly, he was not cross-examined along those lines; nor did Ms Keith submit Mr Craig’s evidence should be seen in this light.   The Judge’s finding is seemingly the first time it was ever suggested that Mr Craig had misrepresented evidence to achieve the outcome he wanted, rather than him having a different understanding of when the de facto relationship commenced.

[40]     The Judge then held that the duration of the relationship was over three years but did not make a finding as to the exact commencement date of the de facto relationship.

Analysis

[41]    The character of the parties’ relationship before May 2010, when they commenced living together in the Auckland apartment, is hard to define.11     The circumstances could suggest either a qualifying de facto relationship or something that just falls short of such a relationship.

[42]     In modern society it is common for adult persons who are about to embark on a shared life (be it by way of marriage, civil union, or a de facto relationship) to spend time beforehand staying overnight or during weekends together at each others’ respective homes, and for them to have sexual relations, which can on occasion lead to accidental pregnancies.  Indeed, in these modern times people who do not plan a

shared future life together often indulge in the same activities.

10     At [25(g)].

11     I acknowledge that on occasion in evidence Mr Craig has acknowledged the parties’ de facto

relationship commenced on 1 April 2010.  Whether that is a mistake on his part regarding the date the parties commenced living together, or whether he accepts a de facto relationship began a month before they began living together at the Auckland apartment then, is another matter. Certainly, it seems they were not living under the same roof until 1 May 2010.  In any event whether they entered a de facto relationship in April 2010 or May 2010 is immaterial in terms of the impact on the duration of the relationship. With either month the relationship is one of short duration.

[43]     Those who engage in what I shall term adult romantic/sexual relationships (including engagements), which are followed by marriage, are generally not viewed during the pre-marriage phase as being a de facto relationship.  This is more likely to be the case if the duration of the pre-marriage phase is a matter of months rather than years.  Instead, the nights and weekends spent together, the sexual experiences and the shared experiences as a couple are seen as part of the prelude to them getting married; part of the modern-day life experiences of an engaged couple.  Of course if the couple do not go on to formalise their relationship by marriage or civil union they may instead: (a) stay as they are; (b) progress either to a self-acknowledged de facto relationship or something that is readily recognisable as a de facto relationship; or (c) separate.   How their overall relationship is to be characterised when circumstances (a) or (b) occur is generally only relevant when a Court later has to grapple with the question of whether there ever was a de facto relationship and if so what was its duration.  Those questions necessarily call for the Court to attempt to identify a bright line between a modern adult relationship between persons who are romantically and sexually involved with each other, and a fully fledged qualifying de facto relationship.   The reality is that there may be no clear divide between such relationships; instead individual relationships may sit along a continuum, in which case it becomes a difficult task for a Court to identify when the cross over to a qualifying de facto relationship under the PRA has occurred.

[44]     The indicia in s 2D(2) go some way to help identify one type of relationship from the other.  However, some of them are also present in relationships that are not de facto relationships.  For example, sexual mores have become more liberal over time.   Today a sexual relationship (s 2D(2)(c)) is not necessarily indicative of a mutual commitment to a shared life.  Nor is the conception of children (s 2D(2)(g)). These two factors can be found amongst people who have no mutual commitment to a shared life together and who in other ways lead disparate lives.

[45]     I find it understandable, therefore, that Mr Craig thought the parties’ de facto relationship did not actually commence until they began living together in the Auckland apartment.  Until then I can accept he may well have seen them as an adult couple who planned a shared future together, but who were not at the time sharing a present life together.  That is not to say his view is determinative of the character of

the parties’ relationship.   It is simply recognition of the fact that what the Court might in hindsight view objectively as a qualifying de facto relationship under the PRA genuinely may not be seen this way by one of the parties to the relationship.

[46]     It is important, when assessing when the de facto relationship commenced, not to allow hindsight and knowledge of what later eventuated to colour this conclusion.12     The circumstances before the parties began living together at the Auckland apartment do not present themselves to me as ones where the character of the relationship is relatively clear, but Mr Craig has gone out of his way to misrepresent the character of the relationship for a personal benefit.   It is no easy

task to determine when Mr Craig and Ms Keith moved from being a “courting couple” (to use the Judge’s description) to being in a qualifying de facto relationship. That being the case, I find it difficult to understand why the Judge reached the view that Mr Craig had misrepresented the duration of the relationship in order to bring it within the definition of a relationship of short duration.  Moreover, the difficulty I have  is  not  helped  by  the  Judge’s  failure  to  provide  reasons  to  support  this conclusion.

[47]     Before a finding that a party has given evidence that misrepresents the true situation is made, there needs to be some evidence to support such a finding, otherwise there will be a breach of natural justice. A Judge may suspect the evidence is a misrepresentation, but suspicion is insufficient to support a finding of misrepresentation; such a finding cannot be made if there is no evidence to support

it.  In Re Erebus Royal Commission, Lord Diplock commented:13

… the decision to make the finding must be based upon some material that tends logically to show the existence of facts consistent with the finding and that the reasoning supportive of the finding, if it be disclosed, is not logically self-contradictory.

12     One way of avoiding hindsight bias would be to adopt a counter factual which assumed that after

13 February 2010 the parties ceased all contact with each other.  One could then ask whether, at any time between September 2009 and 13 February 2010, the parties were living together in a qualifying de facto relationship.  If so, then there would be a de facto relationship of more than short duration (once the real facts were taken into account).  If the answer were no, it would be a relationship of short duration only.

13     Re Erebus Royal Commission [1983] NZLR 662 (PC) at 671.

[48]     Secondly, as was also noted in Re Erebus Royal Commission, it is important that the person at risk of an adverse finding on his or her credibility should not be left in the dark as to that risk, and is instead given sufficient warning so that he or she has the opportunity to put evidence before the decision maker to explain him or herself:14

… any person represented at the inquiry who will be adversely affected by the decision to make the finding should not be left in the dark as to the risk of the finding being made and thus deprived of any opportunity to adduce additional material of probative value which, had it been placed before the decision-maker,  might  have  deterred  him from making the  finding even though it cannot be predicated that it would inevitably have had that result.

[49]     This   is   particularly   so   when,   as   was   the   case   here,   the   issue   of misrepresentation has not been raised by the opposing party, and so Mr Craig had no notice either before or during the hearing that there was a risk of such a finding. Accordingly, Mr Craig would not have been aware there was a risk of a finding of misrepresentation  until  he read  the delivered  judgment.   This  meant  he had  no opportunity to either adduce additional evidence or make submissions that might have deterred the Judge from reaching this finding.  I realise he was self-represented in  the Family Court  and  so  he may in  fact  have been  unable to  properly take advantage of such opportunity, but that is no excuse for neglecting to give him the opportunity.

[50]     Regarding the absence of reasons to support the finding of misrepresentation, in general the trend is for the provision of reasons to support a judicial finding, although the extent to which reasons are provided can vary.15   In some instances they may be unnecessary as the reasons for a finding will be self-evident.  This was not one of those cases.  I have already explained how difficult it is to characterise the parties’ relationship in the period between September 2009 and May 2010.

[51]     When a finding of misrepresentation has been made, the provision of reasons allows an appellate court to readily see the evidence relied upon by a first instance judge to support the finding.  If no reasons are given, the appellate court is left to

look for the evidence itself.   I have tried to do this here.  However, I can find no

14     At 671.

15     See Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA) at [75]–[84].

evidence to support the notion Mr Craig misrepresented the character of the parties’ relationship  in  his  evidence.    Nor  could  opposing  counsel  identify  any  such evidence.  Indeed, opposing counsel helpfully and responsibly acknowledged to me during the course of the appeal that in the Family Court the case for Ms Keith had not been presented on the basis Mr Craig’s evidence was a misrepresentation of when the parties’ relationship became a qualifying de facto relationship.

[52]     The statements made in Re Erebus Royal Commission on the impact of no evidence to support an adverse finding, particularly as to credibility, relate to commissions of inquiry.  The statements in Lewis v Wilson & Horton Ltd regarding provision of reasons were made in the context of the judicial review of a decision made in the District Court’s criminal jurisdiction.   However, the import of those statements is just as relevant to findings made in the Family Court.

[53]     I am satisfied that what occurred in the Family Court is a breach of natural justice that warrants setting aside the Judge’s finding on the duration of the parties’ de facto relationship.   At the hearing the parties recognised I may come to this conclusion.  They acknowledged the outcome may be that the matter is referred back to the Family Court for reconsideration.  They did, however, invite me to proceed to determine the duration of the de facto relationship if I considered I could do so on the evidence before me.

[54]     There is some circumstantial evidence that I can take into account for the purpose of applying the indicia in s 2D(2).  However, in terms of those indicia the circumstantial evidence is light.   I will nevertheless attempt an analysis to decide whether I have sufficient evidence to determine the duration of the de facto relationship.   In doing so, I note that the focus of the s 2D(2) analysis is on the period between September 2010 and to 13 February 2010.16

[55]     As the Judge recognised, s 2D(2)(a) (the duration of the relationship) is no help as it is the duration of the relationship that is in issue here.

16     There  is  no  dispute  the  parties  separated  on  13  February  2013:  s  2E  of  the  Property (Relationships) Act 1976 provides that a relationship of short duration is a relationship of less than three years.

[56]     Regarding s 2D(2)(b), the nature and extent of common residence, the parties did not share a common residence until they moved into the Auckland apartment in May 2010.   Before that they each maintained their own residence, but each spent days staying at the other’s residence. This factor is neutral.

[57]     Regarding s 2D(2)(c), whether a sexual relationship exists or not, in the context of whether the parties were in a de facto relationship between September and up to 13 February 2010, this is also a neutral factor here.  The existence of a sexual relationship is consistent with being in a de facto relationship, but it is also consistent with modern adults who plan a future together but have not embarked on it as yet.

[58]     Regarding s 2D(2)(d), the degree of financial dependence or interdependence, the  circumstantial  evidence  available  to  me  shows  there  was  little  by  way  of financial   dependence   or   interdependence   between   the   parties   before   they commenced living together in the Auckland apartment.  This factor therefore carries little weight.

[59]     Regarding s 2D(2)(e), namely ownership, use and acquisition of property, the Judge found there was no evidence to show shared ownership and/or acquisition of property.  There was some shared use of property in the sense that each stayed in the other’s residence, and at times Ms Keith had  use of Mr Craig’s motor vehicle. However, the type of usage I have described is equally consistent with a romantic or sexual relationship in the pre-de facto relationship stage.   This factor carries little weight.

[60]     Regarding s 2D(2)(f), the degree of mutual commitment to a shared life, in terms of the inferences available from the circumstances as known to me, it would be just as easy to categorise this couple during the material time frame as having a mutual commitment to a shared life in the future rather than to one that existed at the material time. This factor is neutral.

[61]     Regarding s 2D(2)(g), until the first child was born (in May 2010) there was no care and support of children. This factor is neutral.17

17     Judge Burns referred to the extent to which each party participated in the care of their children

[62]     Regarding  s  2D(2)(h),  the  performance  of  household  duties,  the  only evidence of household duties is as given by the parties, and I am in no position to assess their oral evidence. This factor is neutral.

[63]     Regarding s 2D(2)(i), the reputation and public aspects of the relationship, there is the engagement in September 2009.  However, an engagement indicates a future shared life together rather than a present shared life together.   The other evidence regarding their reputation and public aspects of their relationship hinges on their oral evidence, and again I cannot form a judgment on that.   This factor is neutral.

[64]     Looked at overall, the circumstantial evidence available to me on the s 2D(2) indicia does not persuade me the parties were in a qualifying de facto relationship in the period between September 2009 and up to 13 February 2010.  In my view, the circumstances during the material time frame are just as consistent with the parties planning either a marriage or a de facto relationship with the clear intention this would happen.   Indeed,  the engagement suggests that in 2009 at the least they intended at some point in time to marry.  However, having the intention (during the material time) to enter into a marriage or a de facto relationship sometime in the near future is different from actually being in a de facto relationship, which is what is required to take their relationship beyond one of short duration.

[65]     The circumstantial evidence relevant to the material time does not suggest a qualifying de facto relationship to me.  However, I consider it would be wrong for me to rely solely on circumstantial evidence to reach a conclusion on this topic.  The parties’ oral evidence will also be relevant.

[66]     However, as an appellate court, I am in no position to make a choice on whose oral evidence I prefer.  I have decided the Judge was wrong to find Mr Craig’s evidence misrepresented the duration of the relationship, but I am in no position to form my own view on Mr Craig’s credibility or reliability as a witness.  Nor can I

form a view on the credibility or reliability of Ms Keith’s evidence.  Regrettably, I

(see [27] herein).  However, this came well after the critical period and so is irrelevant to any assessment of whether the relationship was of short duration.

consider that the question of the duration of the relationship will have to be reconsidered in the Family Court.  Because the correct characterisation of when the parties commenced a de facto relationship determines the relevant legal test for an award of spousal maintenance, there is nothing further I can deal with in the appeal.

[67]     I also consider that I should set aside the entire decision.  The Judge took an unfounded adverse view of Mr Craig’s evidence on the duration of the relationship. This may have also wrongly influenced the assessments he made of other aspects of Mr Craig’s evidence.   The safest course, therefore, is for the entire question of spousal maintenance to be re-heard and re-determined in the Family Court.

Result

[68]     The appeal is allowed.  The decision of the Judge Burns in the Family Court is set aside, and the matter is returned to the Family Court to be decided again.

[69]     Leave is reserved to the parties to file memoranda on costs.