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High Court of New Zealand Decisions |
Last Updated: 20 March 2018
NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE
HTTP://WWW.JUSTICE.GOVT.NZ/FAMILY-JUSTICE/ABOUT-US/ABOUT- THE-FAMILY-COURT/LEGISLATION/RESTRICTION-ON-PUBLISHING- JUDGMENTS.
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2017-409-165 [2018] NZHC 357
BETWEEN
|
NOEL MOLINA LLAMAS
Applicant
|
AND
|
AILENE SISTONA MASSAAR Respondent
|
Hearing:
|
14 November 2017
|
Appearances:
|
S van Bohemen for Applicant
R Peters for Respondent
|
Judgment:
|
8 March 2018
|
JUDGMENT OF MANDER J
[1] The appellant, Mr Noel Llamas, appeals the determination of Judge
Brandts- Giesen that he was not, for the purposes of the
Property
(Relationships) Act 1976 (the Act), in a qualifying de facto relationship with
the respondent, Ms Ailene Massaar.
Background
[2] Mr Llamas met Ms Massaar in 2008. At that time, Ms Massaar was in a de facto relationship with a Ms Rachelle Pagtalunan. Ms Pagtalunan was the captain of
an Antarctic research vessel which would spend long periods of
time at sea.
LLAMAS v MASSAAR [2018] NZHC 357 [8 March 2018]
Ms Pagtalunan would return from these trips when she was on extended leave,
on a
“three month on, three month off” basis, and live with Ms
Massaar.
[3] Ms Massaar and Ms Pagtalunan’s relationship commenced in May
2003. The following year they purchased a property at
Tilford Street (the
Tilford Street property) where the couple lived together, and an investment
property at St Johns Street (the
St Johns Street property).
[4] Mr Llamas had come to Christchurch from the Phillipines, where his
wife and family remained. They would join him in New
Zealand in December 2009,
although a separation followed almost immediately on their arrival, and Mr
Llamas’ marriage was dissolved
in May 2010.
[5] At the time Mr Llamas met Ms Massaar he had accommodation
at Ms Massaar’s mother’s address. Mr Llamas’
case was that he
entered into a sexual relationship with Ms Massaar shortly after meeting her,
and that by the end of 2008 he had
moved into the Tilford Street property with
her, where he says they lived together as a couple in a de facto relationship.
When
Ms Pagtalunan returned home from sea, Mr Llamas would leave the property to
live in rental accommodation which he maintained at Hereford
Street. Upon Ms
Pagtalunan resuming her duties, he would return to live with Ms Massaar at
Tilford Street, sharing a bedroom with
her.
[6] In support of his case that he was living in a de facto
relationship with
Ms Massaar, Mr Llamas relied upon family and social functions they attended as a couple, and that they holidayed together. He pointed to support he provided to
Ms Massaar who was studying to become a nurse, his carrying out of domestic
chores, and his payment of food, petrol, repairs and maintenance
expenses. Mr
Llamas relied upon evidence of the parties’ mutual love and affection, the
financial support he provided to Ms
Massaar, the opening of a joint bank account
and the mutual taking out of life insurance policies which he paid for. The
nature and
effect of much of this evidence was disputed by Ms
Massaar.
[7] In 2012, Ms Massaar and Ms Pagtalunan agreed to separate. In July of that year, they entered into a property relationship settlement. As part of that agreement
the Tilford Street property was transferred to Ms Pagtalunan, and the St John
Street property transferred to Ms Massaar. They also
entered into an agreement,
whereby Ms Massaar was permitted to live rent-free at the Tilford Street
property until the end of August
2013. Ms Pagtalunan only returned to Tilford
Street for a short time in February 2013 when she stayed with Ms Massaar and
they attempted
a reconciliation.
[8] In early 2013, steps were taken to renovate the St Johns Street
property.
Mr Llamas’ evidence was that in August he, together with Ms Massaar, moved into St Johns Street to start renovations, which he maintains were substantially the result of his labour and money. It was around this time that Mr Llamas gave up his Hereford Street tenancy. His evidence was that he and Ms Massaar continued living together as a de facto couple until difficulties emerged in their relationship in late 2013. This culminated in him being removed from the St Johns Street property by police on 5
January 2014.
[9] Ms Massaar’s case was that she was not at any stage in a de
facto relationship with Mr Llamas. She acknowledged a
friendship and casual
sexual relationship with him, but maintained she had made no long-term
commitment to Mr Llamas to live together
as a couple. Ms Massaar maintained
that Mr Llamas paid her board while living at the St Johns Street property and
that she reimbursed
Mr Llamas for renovation costs, or paid retailers or
tradesmen directly. In her view, Mr Llamas was taking initiatives and making
contributions in respect of the reonvations of the St Johns Street property
which she had not asked him to, and that he was trying
to control the project.
Her evidence was that, contrary to her wishes, Mr Llamas was attempting to
control her life and her property.
Her concerns peaked in this regard when Mr
Llamas, following Filipino custom, asked the local parish priest to bless the
house.
[10] Much of the detail of the parties’ respective narratives were disputed by the other in the Family Court. In large part this appeal is brought against various evidential findings by the Family Court Judge and the approach he took to determining those factual disputes which, it is submitted, led him to the erroneous conclusion that the parties were not in a de facto relationship. The evidential background to the parties’ relationship and the particular evidence relied upon by Mr Llamas will be canvassed in more detail when addressing those issues later in this judgment.
The relevant statutory framework
[11] A de facto relationship is defined in the Act as follows:
2D Meaning of de facto relationship
(1) For the purposes of this Act, a de facto relationship is a
relationship between 2 persons (whether a man and a woman, or
a man and a man,
or a woman and a woman)—
(a) who are both aged 18 years or older; and
(b) who live together as a couple; and
(c) who are not married to, or in a civil union with, one another. (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. (3) In determining whether 2 persons live together as a couple,—
(a) no finding in respect of any of the matters stated in subsection
(2), or in respect of any combination of them, is to be
regarded as necessary;
and
(b) a court 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.
(4) For the purposes of this Act, a de facto relationship ends
if—
(a) the de facto partners cease to live together as a couple;
or
(b) one of the de facto partners dies.
[12] A fundamental requirement of a de facto relationship is that the parties have lived together as a couple. In making that assessment all the circumstances of the relationship are to be taken into account, including all the indicia listed in s 2D(2). Because of the complexity and diversity of human nature and behaviour which can result in many types of associations between people, the exercise can be difficult. Clearly, it is necessary for there be an emotional association between two persons.1
However, it is important to ensure that property consequences do not flow
from relationships that do not reflect an intent to share
property. As Heath J
observed, in B v F, it is for that reason that some rigour is required
when analysing whether a de facto relationship exists.2
Approach on appeal
[13] Appeals to the High Court from the Family Court are “general
appeals” which proceed by way of rehearing.3 It follows that
those exercising general rights of appeal are entitled to judgment in accordance
with the opinion of the appellate
Court, even where that opinion involves the
assessment of fact and degree and entails a value judgment.4 No
deference is therefore required to be taken to the lower Court’s
assessment of the acceptability and weight accorded to the
evidence beyond
taking appropriate account of the advantage the trial Judge had of hearing and
seeing the witnesses give their evidence.
[14] However, while the appellate Court must make its own assessment of the merits of the case, it does not ignore the judgment the subject of the appeal.5 Errors in the first instance judgment are required to be identified and the appellant bears the persuasive burden of satisfying the appeal Court that a different finding is warranted.6
This was emphasised by White J in Nguy v Lee, who
observed:7
1 Miller v Carey [2015] NZHC 887, (2015) 30 FRNZ 675 at [17]; Scragg v Scott (2006) 25 FRNZ
942 (HC) at [31].
2 B v F [2009] NZHC 1165; [2010] NZFLR 67 (HC) at [48].
3 Property (Relationships) Act 1976, s 39.
4 Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141; Kacem v
Bashir [2010] NZSC 112, [2011] 2 NZLR 1.
5 Kacem v Bashir, above n 4.
6 Austin Nichols & Co Inc v Stichting Lodestar, above n 4, at [4].
7 Nguy v Lee (2009) 28 FRNZ 618 (HC) at [5].
The appellant bears an onus of satisfying the High Court that it should
differ from the decision under appeal... It is only if the
High Court considers
that the Family Court decision is wrong that it is justified in interfering with
it... The High Court may or
may not find the reasoning of the Family Court
persuasive in its own terms.
The Family Court decision
[15] After identifying that the issue before him was whether Mr
Llamas and
Ms Massaar had been in a de facto relationship, Judge Brandts-Giesen
summarised the parties’ respective cases. The Judge referred
to s 2D of
the Act and acknowledged that people may be in more than one de facto
relationship at a time, before addressing himself
to a number of matters that
were in dispute between the parties. He highlighted the significant
differences in their perceptions
of their relationship and came to conclusions
regarding particular topics about which he had heard conflicting
evidence.
[16] Judge Brandts-Giesen acknowledged it was well-established in law
that a person can be in two qualifying relationships at
the same time and that
the Act itself provided for such a scenario. However, in reliance upon
observations made by this Court, in
DM v MP, that contemporaneous
relationships tend to show that a relationship lacks the character of a life
lived as a couple, and that one
or other is not a qualifying relationship, the
Judge concluded that the arrangements in the present case were not of two
parallel
de facto relationships.8 In Judge Brandts-Giesen’s
view, Ms Massaar’s relationship with Mr Llamas was one that was convenient
to her but casual.
It may even have been exploitative but that did not, as a
result, mean it was a de facto relationship.
[17] The Judge rejected Mr Llamas’s claim he was in a de facto relationship with Ms Massaar while he was living with her at the Tilford Street property between 2008 and 2012, when Ms Pagtalunan was away, and during the period at St Johns Street from August 2013 until January the following year. The Judge found they were landlord and tenant, or, as he framed it, “possibly akin to flatmates”, albeit at times on
intimate terms. The Judge, by reference to a similar case, considered
the evidence
8 DM v MP [2012] NZHC 503.
disclosed a situation of “friends with benefits” rather than of a
couple creating a mutual commitment to a shared life
for the
future.9
[18] Judge Brandts-Giesen observed that Ms Massaar and her former
partner,
Ms Pagtalunan, “at all relevant times” retained ownership of the
property at St Johns Street and there was no attempt
to include Mr Llamas in any
property ownership, nor did it appear that any such initiative was taken by Mr
Llamas. The Judge considered
that Ms Massaar maintained a high level of
financial independence.
[19] It was observed by the Judge that there appeared to be little mutual commitment to a shared long-term life together. The Judge placed reliance upon observations made by Gendall J, in Miller v Carey, that one person wholly dedicated to a joint life with another cannot bind the latter to an undesired relationship and that the evidence must show a mutual agreement between the parties to a shared life.10
Judge Brandts-Giesen found the relationship between Mr Llamas and Ms Massaar
lacked the mutuality which would be expected of a de
facto
relationship.
[20] The Family Court held that Mr Llamas had not proved he and Ms Massaar were in a qualifying de facto relationship as defined in s 2D of the Act. Having acknowledged that failure, the Judge indicated his finding did not exclude civil remedies Mr Llamas may have against Ms Massaar in contract or in equity to compensate him for expenses, and the time and effort he may have expended to
Ms Massaar’s benefit.
The issues
[21] Mr Llamas’ case on appeal is that the Family Court erred in not finding a de facto relationship between 2008 and 2014. Alternatively, that Judge Brandts- Giesen failed to consider whether the parties were in a de facto relationship of short
duration during that period and whether s 14A of the Act had
application.
9 PZ v JC [2006] NZFLR 97 at [47].
10 Miller v Carey [2015] NZHC 887, (2015) 30 FRNZ 675 at [36].
[22] The grounds relied upon on appeal are that the Judge:
(a) failed to properly address the statutory criteria of s 2D of the
Act;
(b) erroneously disregarded relevant evidence, in particular by failing to
consider the affidavit evidence of Mr Llamas’ daughter;
(c) made findings without a proper evidential basis;
(d) failed to take into account relevant facts; and
(e) misconstrued evidence.
Failure to address statutory criteria
[23] Mr van Bohemen on behalf of Mr Llamas submitted that it was
mandatory for the Family Court to consider each of the factors
listed in s 2D(2)
of the Act. He submitted the Court failed to address itself to two of those
criteria, namely the degree of financial
independence or interdependence and the
arrangements for financial support between the parties; and the ownership, use
and acquisition
of property. He submitted had the Family Court Judge undertaken
a considered analysis of those criteria in combination with the
other s 2D(2)
criteria a different conclusion would have been reached.
The Family Court’s approach to s 2D(2) of the Act
[24] The Judge expressly referred in his judgment to the statutory
criteria set out s
2D(2) of the Act. He noted the list was not exhaustive and that, in determining whether two persons were living together as a couple, no finding was required in respect of any of the matters listed in subs (2), nor was it regarded as necessary for any conclusion
to be reached in respect of any combination of them.11 Further, that a Court is entitled
to have regard to such matters and attach such weight to any matter as may
seem appropriate to the Court in the circumstances of the
case.12
Judge Brandts-Giesen
11 Property Relationship Act 1976, s 2D(3)(a).
12 Section 2D(3)(b).
correctly observed there is no presumption that greater weight needs to be
applied to any one factor and, importantly, that it is
not a question of ticking
boxes or working through a checklist.13
[25] This Court, in Scragg v Scott, observed that what is required
of the Court is an
“evaluative approach applying a commonsense judgment to the particular
case”.14
This was the method expressly adopted by the Judge. As a result, he did not
go step-
by-step through the criteria set out in the legislation. The Judge noted that
he was not seeking to carry out “an exhaustive
analysis of the
evidence” but to highlight the significant differences between the parties
which he was left to resolve.
Financial dependence or interdependence and arrangement for financial
support
[26] In summarising the evidence, the Judge referred to a number of
features of the financial arrangements between the parties,
including
arrangements for the contemplated purchase of land in the Phillipines, insurance
policies, the funding of Ms Massaar’s
tertiary education, and the
renovating of the St Johns Street property. Judge Brandts-Giesen concluded
that Ms Massaar had
maintained her financial independence and that she
had “pushed” Mr Llamas away when she felt her independence was
threatened.
[27] Given these considerations and the Judge’s conclusion, I do
not consider it can be realistically contended that the
parties’ financial
dependence or interdependence was not considered by the Family Court. It is
with that conclusion, namely
that the parties remained essentially financially
independent, which Mr Llamas takes issue. The availability of that finding is
discussed
later in this judgment.
The ownership, use and acquisition of property
[28] I consider the Family Court did take into consideration arrangements regarding the use and ownership of property. The Judge noted (rightly or wrongly) the financial arrangements relating to a planned acquisition of land in the Philippines, and the
acquisition, use, and proprietary interests in the Tilford Street, St
Johns Street, and
13 Scragg v Scott, above n 1.
14 At [64].
Hereford Street properties which are mentioned throughout the judgment. The
respective positions of the parties regarding these properties
were set out, and
conclusions drawn by the Court. In particular, the Judge observed that no
attempt or initiative was taken to include
Mr Llamas in the ownership of the
properties.
[29] While the Judge’s comments regarding such matters are not
extensive, I do not consider it can be concluded that he
was not cognisant of
them, or failed to take them into account as relevant matters in carrying out
his evaluation as part of what
is a flexible and “commonsense”
test.15 The real issue the appeal gives rise to is whether the
Family Court’s evidential conclusions relating to these and other
considerations
were erroneous.
Wrongly disregarded relevant evidence
[30] Mr Llamas contends the Family Court Judge fell into error by
refusing to have regard to the affidavit of Mr Llamas’
daughter, Ms
Nathalie Llamas, who did not appear for cross-examination. Judge
Brandts-Giesen ruled that insofar as some witnesses
had not been made available
for cross-examination, he put their affidavit evidence aside and attached no
weight to it. As a result,
Ms Llamas’ affidavit was
disregarded.
[31] Rule 169 of the Family Court Rules 2002 (the Rules) provides as
follows:
169 Cross-examination of deponent
(1) A party who wishes to cross-examine a deponent who has sworn an
affidavit for an opposite party may serve a written notice
on the opposite party
requiring the deponent to attend the hearing for cross- examination.
(2) The written notice may be by way of a letter to the opposite
party’s lawyer.
(3) The party giving the written notice must, no later than 5 working
days after receiving notice of the date and time fixed
for the hearing of the
application,—
(a) serve it on the opposite party:
(b) serve a copy of it on any other party to the
proceedings:
15 Scragg v Scott, above n 1.
(c) file a copy of it in the court.
(4) If the deponent does not attend the hearing, the deponent’s
affidavit may not be used as evidence by any party, except
by the leave of the
court.
(5) The party served with the notice may compel the deponent’s attendance for cross-examination by a witness summons under rule
50.
[32] It does not appear any formal notice was issued by Ms Llamas to
attend the hearing for cross-examination. However, it was
accepted that
informal notice may have been given, and it does not appear to have been
contested in the Family Court that Mr Llamas
was other than expected to make
herself available to be cross- examined on her affidavit. Mr Llamas therefore
does not challenge
the Judge’s setting to one side his daughter’s
affidavit on the basis written notice was not properly given. Rather,
he
maintains the Judge was wrong to disregard aspects of Ms Llamas’ affidavit
which went to matters in issue between the parties
and which had not been
challenged by Ms Massaar in any reply affidavit notwithstanding the period that
had elapsed between when it
was sworn, 17 September 2014, and the hearing on 2
November 2016.
[33] Mr van Bohemen submitted it was wrong for the Family Court to
exclude
Ms Llamas’ evidence which was relevant to the issue of mutual
commitment by the parties to a shared life, and the reputation
and public
aspects of the relationship. In his submission, the unavailability of the
witness for cross-examination went to the weight
the Court could place on the
evidence but did not provide a basis for the Court to refuse to accept it into
evidence, including,
as it did, direct evidence of matters the witness had seen
and heard which, in Mr van Bohemen’s submission, had not been challenged
by Ms Massaar.
[34] The reason for Ms Llamas’ non-attendance at Court remains opaque. The only information available is that set out in counsel’s written submissions, namely his understanding that Ms Llamas was attending a university examination at the time of the hearing. No evidence was provided on appeal as to her particular circumstances at the time, nor it appears was any evidence provided to the Family Court as to the reason for her unavailability.
[35] In DHM v PSB a ruling was sought from the Family Court,
pursuant to r 170 of the Rules, seeking an order determining the admissibility
of affidavit
evidence of a witness unable to attend Court for
cross-examination.16 There was medical evidence the deponent was
bed-bound with an illness. In making his ruling, Judge Somerville referred to
JEF v GJO’K, where a deponent had died. While there was no
opposition to the deceased’s affidavit being admitted, the Judge in that
case
noted the caution that was required in placing reliance upon such evidence
in the absence of cross- examination.17 Judge Somerville granted
leave for the deponent’s affidavit to be used as evidence under r 169(4)
“because of his age
and infirmity”, holding the deponent was
“unavailable as a witness” in terms of the Evidence Act
2006.18
[36] DHM v PSB was subsequently considered in Gao v
Jiang.19 In that case, counsel advised the Court the deponent
had breast cancer and for that reason could not be cross-examined. No medical
evidence was put before the Court, and the Judge found the witness was not
“unavailable” in terms of the Evidence Act.
The Judge acknowledged
that s 12A of the Family Courts Act empowers the Court to admit evidence despite
it being inadmissible under
the Evidence Act, but declined to grant leave under
r 169(4), observing that the evidence was not “pivotal or necessarily
essential
to the determination of the proceedings in the absence of
cross-examination, particularly in view of the other evidence and witnesses
that
can be available for cross- examination”.20
[37] It does not appear in the present case that leave was sought pursuant to r 169(4) to admit Ms Llamas’ affidavit notwithstanding her non-attendance. My attention was not brought to any argument made before Judge Brandts-Giesen for the purposes of obtaining leave, and it does not appear to have been the subject of any specific ruling. The default position under the rule is that, in the absence of leave being granted, the evidence is inadmissible. It is therefore difficult to conclude the Judge erred in taking
the approach that he did, which appears to give effect to the
rule.
16 DHM v PSB [2012] NZFC 7629.
17 JEF v GJO’K [2012] NZFLR 541 (FC).
18 Evidence Act 2006, s 16(2)(c).
19 Gao v Jiang [2015] NZFC 6255, [2016] NZFLR 315.
20 At [78].
[38] The cases discussed suggest the exercise of the discretion under r
169(4) would involve, firstly, an investigation into the
reason for the
unavailability of the witness for cross-examination, and, secondly, an
assessment of the importance of that evidence.
As I have already noted, there
does not appear to have been any material provided to the Court to suggest Ms
Llamas was “unavailable
as a witness” as that term is defined in s
16(2) of the Evidence Act 2006, being neither deceased, outside New Zealand,
aged
or infirm, unable to be located, or not compellable.
[39] Ms Llamas’ proposed evidence was of a corroborative nature and
of itself was neither pivotal or essential to Mr Llamas’
case, but rather
supportive of his claims relating to his cohabitation with Ms Massaar at Tilford
Street and their mutual desire
and efforts to have a baby. Both matters
were in contention, and any weight, particularly because of the family
relationship
between the witness and Mr Llamas, was dependent upon an assessment
of the credibility and reliability of the witness. Absent the
ability of Ms
Massaar’s counsel to cross-examine the witness, little weight, if any,
could be placed on such a witness’s
evidence, even if leave had been
sought for its admission.
[40] The importance of cross-examination was highlighted in the present
case when it was revealed in the cross-examination of
another witness, a Mr
Vincent, that his affidavit had been written for him by Mr Llamas himself.
While that witness did not resile
from his evidence, it is illustrative of the
essential need for a witness whose proposed evidence relates to a topic in issue
between
the parties to be available for cross-examination. While Mr van
Bohemen sought to submit that Ms Llamas’ evidence
was not challenged
by Ms Massaar by filing reply affidavit, I do not consider that accurately
reflects the position. Ms Massaar may
not have filed any formal reply evidence
in direct response to Ms Llamas’ affidavit, but it was clear the matters
traversed
by Ms Llamas in her short affidavit were directly in issue between the
parties.
Findings without a proper evidential basis
[41] Mr van Bohemen made submissions that the Family Court Judge made a number of findings which lacked a proper evidential basis.
Was Mr Llamas a lodger?
[42] Mr van Bohemen submitted that Judge Brandts-Giesen erred in finding
that Mr Llamas was only ever a lodger or flatmate. Mr
Llamas’ evidence
was that he and Ms Massaar had lived together at the Tilford Street property
since late 2008, and that he
would only move back to the Hereford Street
property when Ms Massaar’s other partner, Ms Pagtalunan, was home from
sea. His
evidence was that they continued to live together as a couple at the
St Johns Street property. This is to be compared with Ms Massaar’s
evidence that the only time they lived together under the same roof was at the
St Johns Street property in late 2013 and not as a
couple.
[43] Judge Brandts-Giesen’s conclusion in respect of this issue was
as follows:21
Was Mr Llamas a lodger or a de facto partner? Mr Llamas, one might say
conveniently, had “forgotten” that he had a rental
agreement and
that he paid board. It is not unusual for a boarder to do some housework in the
form of cleaning, vacuuming, and even
cooking. Such activities are consistent
with being a lodger or flatmate in a house owned by one of them. I find that he
was a lodger/flatmate.
[44] Mr van Bohemen submitted there was no evidence of a rental agreement
before the Family Court and no factual basis for the
Judge’s
determination. I do not accept there was no evidence of a rental agreement.
During the course of Mr Llamas’
cross- examination, he was asked whether
he signed a tenancy agreement in relation to the St Johns Street property. He
replied that
he had not. He was then shown a document, in response to which Mr
Llamas stated, “Now it rings a bell”, and he admitted
to having
signed the document shown to him. He apologised for not having recollected and
his failure to include the tenancy agreement
in his affidavit.
[45] For some reason, the document put to Mr Llamas was not produced as an exhibit in the Family Court. However, the evidence provides a basis upon which the Family Court could properly conclude there was some type of written tenancy agreement in relation to the St Johns Street property while Mr Llamas and Ms Massaar
were cohabiting at that address in
2013.
21 At [23](3).
[46] Mr Llamas produced his bank records in response to Ms Massaar’s evidence that he was paying $150 for his room at St Johns Street. The bank statements show a series of weekly payments from 1 October to 29 November in the sum of $300, two payments on 6 December each in the sum of $150, a payment on 13 December for
$150, and one on 20 December for the same amount. It was submitted on behalf
of Mr Llamas that these records corroborate his evidence
that after he had
purchased most of the materials required for the renovations of the St Johns
Street property and commenced work
on the renovations, he started paying the
mortgage of $300 per week from 1 October 2013. In apparent reference to
becoming aware
that Ms Massaar was seeing someone else, Mr Llamas deposed he
reduced his payments to $150 in December until their relationship
ended.
[47] The narrative recorded in the bank statements that accompanied each
payment reads “AP Ailene Massaar Mortg Auto Payment”.
That
narration must have been sourced from Mr Llamas himself and cannot of itself be
determinative. It is not clear to me whether
there was evidence of the account
which received the payments, although it appears to have been Ms
Massaar’s account
rather than that of the mortgagee. Mr van Bohemen
made the point that for the period between October 2013 and January 2014,
the
payments totalled some $3,150, and represent on a weekly basis payments ($243.31
per week) well in excess of the $150 per week
which Ms Massaar deposed was the
rental. That analysis does show that the contributions made by Mr Llamas went
beyond an obligation
to pay $150 rental, although that has to be viewed against
the Family Court’s overarching conclusion that Mr Llamas was seeking
a
much closer relationship with Ms Massaar than she was willing to accept or
wanted.
[48] Mr Llamas’ acceptance of having signed a rental agreement in relation to the St Johns Street property supports Ms Massaar’s view of the relationship. Mr Llamas may have considered his payments as a contribution to the mortgage, and such payments may well have been used for that purpose. However, that does not detract from the valid observation made by the Family Court Judge that Mr Llamas had omitted, by his own admission, to include in his evidence reference to a rental agreement that he had entered into with Ms Massaar in respect of the St Johns Street property. That evidence supported the Judge’s conclusion that Mr Llamas was a lodger or flatmate in a house which Ms Massaar owned.
[49] The rental agreement concerned only the St Johns Street property
where the parties resided towards the end of their relationship,
and its
relevance may be considered limited to that period alone. However, when regard
is had to the divergent accounts of the living
arrangements at Tilford Street,
the existence of some form of written rental agreement in respect of Mr
Llamas’ occupation
of the St Johns Street property provides some
corroboration of how Ms Massaar viewed arrangements during the preceding years
while
Mr Llamas maintained his Hereford Street rental accommodation. It tends to
support her account of the arrangements at Tilford Street,
where it appears no
issue arose regarding Mr Llamas paying a rental or contribution for the time he
spent at that address. That
may reflect the clandestine nature of their
relationship at that time, at least in respect of Ms Pagtalunan, but leaving to
one side
how that aspect detracts from their living together as a couple, it
seems incongruous that Ms Massaar would insist that Mr Llamas
enter into a
tenancy agreement at St Johns Street if they had been living their lives
together in a de facto relationship at Tilford
Street.
[50] In examining the evidential finding by the Family Court Judge that
Mr Llamas was a lodger or flatmate, it needs to be recognised
the Court was
seeking to identify and make findings in relation to a raft of matters which
were in dispute between the parties.
The issue of whether Mr Llamas was a
lodger or de facto partner arose only in the context of the St Johns Street
property where Ms
Massaar accepted they both lived. In respect of the Tilford
Street property, it was her position that they did not live together
and that he
retained his tenancy of the Hereford Street property.
[51] The issue therefore between the parties as to whether Mr Llamas was a lodger or a de facto partner was limited to the St Johns Street property, albeit, as I have observed, that the evidence of the approach taken by Ms Massaar to formalise or regulate Mr Llamas’ living arrangements at the same property in the form of a tenancy agreement is capable of shedding some light on their previous domestic living arrangements. The parties have very different accounts of the arrangements relating to Tilford Street, which largely turned on the Family Court’s assessment of the effect of the evidence as a whole, the credibility of the parties, and the Judge’s evaluation of the nature of their relationship.
Renovations
[52] Mr van Bohemen submitted the Family Court erred in concluding
“there was no clear evidence of who paid for what and
who had reimbursed
who” in respect of the St Johns Street property renovations.22
Further, that the Family Court Judge had erred in observing it was
“unlikely that an employed electrician on wages, with time
to work on Ms
Massaar’s house, would have earned enough to renovate a house out of
income and paid as much as he did without
Ms Massaar paying much of it
back”.23
[53] Mr Llamas’ evidence was that he spent some $18,722 on the renovations in addition to 490 hours’ worth of labour. There was documentary evidence produced supporting his claimed expenditure. Ms Massaar herself acknowledged that
Mr Llamas had made contributions to the renovations, both financially and by
way of his labour. However, she maintained the alleged
number of hours spent
working on the property were overstated and that many of the contributions he
made to the renovations were
done on his own initiative and were not wanted by
her. She claimed to have reimbursed Mr Llamas for some of his financial
expenditure.
[54] There was no evidence provided by Ms Massaar in support of her claim that she had paid Mr Llamas back for any of the expenses. I accept Mr van Bohemen’s submission that the Judge did not have a sufficient basis upon which to conclude that Mr Llamas could not have afforded to contribute in the way he alleged, and that he must have been reimbursed by Ms Massaar. There was evidence that Mr Llamas, in addition to his job as an electrician, also worked as a cleaner and that he had saved
$10,000. I consider the Judge’s finding in that regard was
speculative.
[55] The topic of expenditure and effort provided by Mr Llamas was only one factor in relation to the St Johns Street property in dispute between the parties and the subject of conflicting evidence. I have accepted that the Family Court Judge’s approach was not objectively available to him on the evidence. However, it was Ms Massaar’s evidence that Mr Llamas’ financial and physical involvement in the renovations were
contributions which she had not called upon Mr Llamas to make and in
respect of
22 At [23](10).
23 At [23](10).
which he had taken the initiative. As earlier observed, these contributions
by Mr Llamas have to be considered against the Family
Court’s finding that
Mr Llamas was seeking a relationship which Ms Massaar did not wish to
have.
[56] The Family Court acknowledged the possibility that Ms Massaar may
well have been opportunistic, or even exploitative, of
Mr Llamas in the way she
may have benefitted from him, and in particular from his contributions to the
renovations of the St Johns
Street property. Such contributions, while capable
of being evidence of Mr Llamas’ commitment to a de facto relationship,
do
not necessarily assist in demonstrating that Ms Massaar’s commitment was
mutual. That aspect of the evidence is demonstrated
by the next challenged
finding, which it is submitted the Judge did not have a sufficient evidential
basis to make.
Carpet
[57] Mr Llamas takes issue with the Judge’s finding that Ms Massaar
did not want the carpet provided by Mr Llamas for the
St Johns Street renovation
because she had dogs and preferred polished floors. As a preliminary
observation, I note the Judge’s
reference to the topic of the carpet was
in the context of summarising Ms Massaar’s case and for the purpose of
providing an
example of how Mr Llamas would give her things which she sometimes
tolerated against her will.
[58] Ms Massaar deposed that Mr Llamas gifted the carpet and that she did not ask him to buy it. She wanted wooden flooring. This was in response to Mr Llamas listing
in his affidavit the carpet as one of the items he paid for to renovate the
St Johns Street property in support of his contention
that it was used by them
as a family home.
[59] Under cross-examination, Ms Massaar said:
When we did the renovation around the house, I don’t want carpet there. I hate carpet because it gets dirty. We Filipinos, we hate carpets. He kept insisting, “Oh, why don’t you put carpet because it’s cold, it makes, you know, its warm than the tiles”, because I like tiles in the first place so I went to tile, Floor Direct for a quote for tiles. And then also Rachelle gave a laminated flooring that I wanted there. Next thing I got home from work, next Mr Llamas rung Mr Mills, the Carpet Mills company, and they were already there measuring and I said, I asked Mr Llamas, “Why are you doing that? because I want tiles here.” And he said, “Well I give you this a gift, along with our gas stove.” So he said that this is a gift.
[60] The link between not wanting carpet and her having dogs arose not
from
Ms Massaar’s evidence but from Ms Pagtalunan’s
testimony:
We have dogs still, still at St Johns and, ah, the reason we didn’t
want the carpet is we didn’t want the dogs to, to
be messy on our carpet,
I, it happened at Tilford.
[61] I accept there has been conflation of Ms Massaar and Ms
Pagtalunan’s evidence but it is to no material effect.
Firstly, as I have
already observed, the Judge’s reference to this piece of evidence was as
part of a summary of Ms Massaar’s
case and not a finding by the Family
Court Judge. Secondly, insofar as the Family Court Judge’s understanding
of this limited
piece of evidence may have influenced his assessment of the
evidence as a whole and his conclusions regarding the nature of the relationship
between the parties, its effect was the same.
[62] Ms Massaar’s evidence was that she did not want the carpet.
The relevance of that evidence was that some of the contributions
to the house
made by Mr Llamas were in the nature of unwanted gifts. That was evidence which
the Family Court could legitimately
take into account in coming to its general
characterisation of the relationship as being one-sided, and that while Mr
Llamas may
genuinely have thought they were in a de facto relationship, Ms
Massaar did not. The evidence supports the conclusion that the renovations
were
not in the nature of a couple collectively working together to set up their
family home, but rather a one-sided affair, with
Mr Llamas imposing himself on
the respondent, following his own objective to achieve the relationship he
sought, which was not reciprocated
by Ms Massaar.
Holidays
[63] A significant difference between the parties and their respective
perception of their relationship was their conflicting
evidence relating to the
nature of holidays they shared over the period of their relationship. Judge
Brandts-Giesen’s finding
in relation to that issue was as
follows:24
Holidays: Mr Llamas speaks of the holidays as if they were intimate getaways.
Ms Massaar describes them as occasions where quite a
few members of the extended
family would go as a group and stay with other relatives or friends
24 At [23](5).
in Australia, paying their way collectively, staying together as a group, and
sleeping as a group in a host’s lounge. Similarly,
the trip to Kaikoura
was with Ms Massaar’s mother. They slept in three separate single beds,
according to the undisputed evidence.
This is not strong evidence of a de facto
relationship.
[64] Mr van Bohemen submitted the Judge erred when he found the parties
paid their own way on holidays. The difficulty with that
submission is that the
Judge did not make such a finding, rather he merely put forward the opposing
views of the parties before
concluding that this aspect of their
relationship, namely their holidaying together, was not strong evidence of a
de facto
relationship. In his detailed written submissions, Mr van Bohemen
referred to documentary evidence that supported Mr Llamas’
evidence that
he purchased tickets for an Australian holiday in February 2012 and that Ms
Massaar used her credit card (which was
ancillary to Mr Llamas’ credit
card) to pay for a trip to Australia in the following year. Mr Llamas’
evidence was that
he paid the credit card bill. There was also documentary
evidence produced by Mr Llamas of him paying for two trips to
Kaikoura.
[65] The difficulty for Mr Llamas in relying upon the evidence about the holidays was that it did not show the parties travelled together as a couple exclusively in their own company. The wider evidence, much of which was undisputed, was that
Mr Llamas routinely spent sums of money for the benefit of Ms Massaar. The
expenditure on holidays forms part of that evidence.
However, the significance
of the holidays was less who paid than their nature. There was no evidence that
the holidays were other
than group trips involving friends and family who all
travelled and stayed together. Ms Massaar’s evidence was that they slept
in separate rooms in Australia. The evidence as a whole was contrary to the
impression which Mr Llamas sought to develop, that the
couple shared
“romantic getaways”. I do not consider the Family Court’s
finding that the evidence relating to
the holidays was not strong evidence of a
de facto relationship was erroneous.
Fertility Treatment
[66] Mr van Bohemen submitted the Judge’s findings in respect of the inferences to be drawn from Ms Massaar’s fertility treatment were not available to him. This was a topic that was also raised under a further ground of appeal that the Judge failed to take into account relevant facts. It is convenient to deal with both contentions at this
point in the judgment. Judge Brandts-Giesen identified the topic of fertility
treatment as a matter which was in dispute and which
highlighted the significant
differences between the parties and their respective positions regarding their
relationship. The Judge
observed:25
Fertility treatment was said by Mr Llamas as being between him and
Ms Massaar, whereas Ms Massaar says (and it is confirmed by Ms Pagtalunan)
that it had been initiated during her relationship [with
Ms Pagtalunan] and that
insofar as Mr Llamas was involved, he would only be a friend who was
“helping out”. This is evidence
of Ms Massaar’s desire to have
a child but not necessarily one where Mr Llamas would have a role as a father to
the child or
partner to her.
[67] Mr van Bohemen submitted the Judge failed to take into account Mr
Llamas’ evidence that he and Ms Massaar were “attempting
to have a
baby” and had a joint wish to conceive a child. Mr van Bohemen submitted
this is corroborated by correspondence
in July 2013 and an invoice from
Fertility Associates, and by the fact Mr Llamas paid the invoice. Ms Massaar
maintained the author
of the letter had gained the wrong impression or
understanding of the position. However, Mr Llamas’ payment of the
invoice,
as with other items of expenditure, was not challenged.
[68] There were two available inferences from the evidence: either Mr
Llamas accompanied Ms Massaar to the fertility clinic because
the pair wanted to
conceive a child and start a family together, or Mr Llamas accompanied her as a
supportive friend on a visit that
was a continuation of treatment she had been
seeking in order to conceive as part of her relationship with Ms Pagtalunan. It
is
noteable that emails were produced which showed that in October 2011 Ms
Massaar and Ms Pagtalunan were actively engaged with Feritility
Associates.
[69] Judge Brandts-Giesen preferred the evidence of Ms
Massaar and
Ms Pagtalunan. As with many aspects of the contested evidence, having seen and heard the witnesses, the Court made an assessment of the credibility and reliability of the parties regarding whose evidence was to be preferred. However, putting that contest to one side, the respective evidence of the parties relating to fertility treatment is another example of the disparate view each party expressed regarding the nature and
future of their relationship. Having regard to the available evidence
relating to the
25 At [23](7).
issue of fertility treatment and the Family Court Judge’s wider
assessment of the parties’ relationship, I consider the
Judge’s
interpretation of Ms Massaar’s evidence, that she had a desire to have a
child but that Mr Llamas would not necessarily
have a role as a father to the
child or as a partner to her, was reasonably available to him.
Ownership of the St Johns Street property
[70] Mr van Bohemen submitted the Family Court Judge erred when he noted “the respondent and her former partner at all relevant times still owned the property at
St Johns Street”.26 Mr van Bohemen correctly submitted
that Ms Massaar and her
former partner had severed their joint ownership of the St Johns Street
property in July
2012 as part of a relationship property settlement. However, I do not
consider that error is significant. The Family Court Judge
observed immediately
after that statement that there was “no attempt to include Mr Llamas in
any property ownership, and no
such move appeared to have been initiated by Mr
Llamas”.
[71] I consider the point being made by the Family Court was that the
properties at Tilford Street and St Johns Street remained
the relationship
property of Ms Massaar and Ms Pagtalunan and that, after the dissolution of that
relationship, those properties
were divided between the two parties to that
relationship. There is no suggestion of Mr Llamas having any claim, at least
before
August 2012, to either property. After August 2012, the Tilford Street
property was solely owned by Ms Pagtalunan, and Ms Massaar
was allowed to occupy
that address for a further year, in accordance with a caretaker
agreement.
[72] I do not consider the severing of the joint ownership between Ms Massaar and her former partner is evidence in favour of a de facto relationship between her and
Mr Llamas, but merely indicative of the breakdown of that previous relationship and the arrangements that were put in place to give effect to the agreed settlement of
property as a result of that de facto
relationship.
26 At [32].
Financial independence
[73] Mr van Bohemen submitted the Family Court’s conclusion that Ms Massaar maintained a high level of financial independence was not available. He referred to Mr Llamas’ payment for a day’s fishing charter to Kaikoura, the costs of another trip to that location, and the purchasing of tickets for two holidays to Australia. He also referred to Mr Llamas’ payment of nursing registration fees for Ms Massaar between
2010 and 2013, life insurance premiums of $1,099 in the period between
December
2012 and December 2013, the payment of medical insurance for seven
months between May and December 2013, groceries, “the
mortgage” on
the St John Street property, and the transfer of $1,580 to Ms Massaar to the
Philippines.
[74] Much of this evidence was not in dispute. However, Ms Massaar
maintained the money transferred to the Philippines by Mr
Llamas was in partial
repayment of a loan, and as previously discussed, that the “mortgage
payments” were board for a
room at her St Johns Street property. There was
evidence of payments for groceries, but that is not inconsistent with Ms
Massaar’s
claim that they lived as flatmates at the St Johns Street
property.
[75] Taken in isolation, those individual items of expenditure spent on Ms Massaar by Mr Llamas may bring into question the Family Court’s conclusion that Ms Massaar maintained “a high level of financial independence”. However, from her graduation in 2010, Ms Massaar was employed as a registered nurse and was not financially dependent on Mr Llamas, either in terms of income or capital. The Judge’s comment regarding financial independence needs to be read in context. His finding was that “Ms Massaar maintained a high level of financial independence and pushed Mr Llamas away when she felt that was threatened”. The Family Court was cognisant of
Mr Llamas’ expenditure on Ms Massaar from which she enjoyed the
benefit. The
Judge did not discount the possibility that Ms Massaar had taken advantage
of
Mr Llamas’ generosity, but observed that Mr Llamas’ willingness to provide this assistance to Ms Massaar was likely in pursuit of a serious relationship that Ms Massaar was not seeking.
[76] A difficulty for Mr Llamas is the lack of reciprocity on the part of
Ms Massaar, and the Judge’s finding that she wished
to retain her
independence. Mr Llamas’ unmatched desire for such a relationship
resulted in Ms Massaar ending her association
with him to avoid the very
relationship that Mr Llamas contended for in his application to the Family
Court. As already observed,
there was little, if any, evidence to infer Ms
Massaar was in anyway financially dependent on Mr Llamas, nor that she took any
steps
to allow either herself or Mr Llamas to become interdependent on the
other. There was no evidence that Ms Massaar made arrangements
or organised her
affairs to allow such a situation to develop.
Failure to take into account relevant facts
Cell phones
[77] Until July 2012, at which point Ms Massaar and Ms Pagtalunan’s
de facto relationship came to an end, the parties had
an arrangement whereby Ms
Massaar maintained two cell phones. One was used by Ms Massaar for ordinary or
general purposes and one
specifically for the purpose of covertly maintaining
her relationship with Mr Llamas. Mr Llamas complains the Court made no
reference
to this evidence in its decision.
[78] This evidence was not the subject of challenge by Ms Massaar and was
not included in the Family Court Judge’s summary
of the disputed evidence
and his findings in that regard. Insofar as the evidence of the cell phones had
relevance to the issue of
whether the parties were in a de facto relationship, I
do not consider it greatly assists Mr Llamas.
[79] The need to use a discrete phone for communications indicates some determination by the parties to maintain their relationship, although it also indicates
Ms Massaar’s determination to maintain her existing de facto
relationship with
Ms Pagtalunan. The use of such a phone for clandestine communications indicates a degree of secrecy regarding the relationship. Secrecy in a relationship indicates an
affair rather than a de facto
relationship.27
27 DM v MP, above n 8.
Ferility treatment
[80] I do not consider the Judge failed to take into account this aspect
of the evidence which is discussed at [66]-[69].
Banking arrangements
[81] Mr van Bohemen submitted the Court did not address the evidence that
from
December 2010 the parties “operated” a joint BNZ investment
account in the sum of
$10,000 funded by Mr Llamas, nor that they had a joint Westpac electronic
account from June 2012. The funds held in the later account
comprised the
balance transferred by Mr Llamas from the earlier BNZ account. Further, he
refers to the failure by the Family Court
Judge to give weight to the fact that
Ms Massaar had an ancillary card linked to Mr Llamas’ Westpac credit card
as from August
2012. It may be the Judge did not refer to these details because
they were not in dispute, and his analysis of the contest between
the parties
tended to focus on the conflicting evidence. However, these were evidential
details relating to the financial circumstances
of the parties which should have
been taken into account.
[82] In considering such evidence, the Family Court would also have
needed to take into account other evidence relating to banking
and financial
arrangements. There was undisputed evidence that Mr Llamas had a joint account
with Ms Massaar’s sister which
was for the purpose, at least initially, of
purchasing land in the Philippines. Ms Massaar claimed Mr Llamas unilaterally
added her
name to the Westpac account, which he already held, and encouraged her
to deposit money into it. She maintains she refused to do
so and the account
was closed soon after. Mr Llamas’ own evidence is that he opened and
deposited his savings into the joint
BNZ account. However, there is no evidence
that Ms Massaar sought to access or “operate” the joint accounts
which were
opened at Mr Llamas’ initiative. There is no evidence Ms
Massaar sought to rely on funds held in the accounts, nor that she
contributed
to the accounts. She appears to have conducted her financial affairs in a
manner independent of the joint accounts.
[83] I acknowledge the Family Court should have addressed itself to the evidence relating to these banking arrangements and that the Judge fell into error by not
addressing himself to this part of the evidence which is ordinarily taken
into account in assessing the nature of a relationship.
However, the banking
evidence is not inconsistent with the Family Court’s overall assessment of
the parties’ relationship
which was marked by Mr Llamas’ apparent
courting of Ms Massaar’s favour to secure a long term bond and her absence
of
reciprocity or willingness to enter into such a relationship.
Joint use of the Hereford Street property
[84] Mr van Bohemen in his written submissions drew attention to two bank
statements for Ms Massaar’s private bank accounts
that were sent to Mr
Llamas’ Hereford Street address, addressed to Ms Massaar. He submitted
the Court failed to give any weight
to the submission that Ms Massaar used Mr
Llamas’ address for correspondence. In her evidence, Ms Massaar stated
she had no
knowledge of these statements or why they were sent to the Hereford
Street address.
[85] Mr van Bohemen’s written submission was not developed further
before me. The significance of that evidence is not immediately
apparent,
limited as it is to two pieces of correspondence. It is not contended by Mr
Llamas that Ms Massaar was a resident at the
Hereford Street rental property.
While relevant, I do not consider any omission by the Family Court to refer to
this very limited
piece of evidence constitutes a material error.
Mr Llamas’ expenditure on renovations and unpaid work at the St
Johns Street property
[86] I have addressed this topic earlier at [52]-[56]. As is apparent
from that discussion, I do not consider the submission
the Judge failed to take
into account this aspect of the evidence is sustainable.
Mortgage payments
[87] Similarly, this part of the evidence has been addressed earlier at [42]-[51]. Again, I do not consider evidence relating to this topic was not taken into account by the Family Court Judge.
Photographs
[88] Mr van Bohemen referred to two photographs produced in the Family
Court and was critical that Judge Brandts-Giesen had not
referred to them in his
judgment. The first is of the parties at a wedding in 2009, where Mr Llamas has
his arm around Ms Massaar’s
waist. Her hand is on top of his. Two
other women are in the photograph, one in the foreground and one with the
parties adjacent
to Ms Massaar. When this photograph was referred to at the
hearing, the Family Court Judge commented at the time that it showed
“fairly close and intimate holding by [Mr Llamas]”. The second
is of the parties on a Kaikoura fishing charter
boat in 2012. Again, Mr Llamas
had his arms around Ms Massaar’s waist. The notes of evidence record the
Judge commenting that
this is a picture of “more than just friends, is it
not?”
[89] Ms Massaar’s evidence in relation to the photographs was that
they were merely pictures of friends, and that the level
of intimacy shown was
typical of Filipino culture. That was countered by the evidence of Mr Cruz, who
said that it is not usual
in Filipino society to show signs of intimacy, even
between romantically involved couples.
[90] I do not consider the photographs greatly assist Mr Llamas’
case. It was uncontested the parties were in an affectionate
sexual
relationship and enjoyed each other’s company to the extent this needed to
be hidden from Ms Pagtalunan. The inference
of intimacy that can be drawn from
the photographs is not inconsistent with the Family Court’s findings, nor
with Ms Massaar’s
evidence, of the nature of their relationship, which
clearly was one of more than “just friends”. While an emotional
association is a prerequisite to the establishment of a de facto relationship, I
do not consider the photographs advance Mr Llamas’
case as to the nature
of the relationship beyond that which Ms Massaar was prepared to
admit.
Cards
[91] For the same reasons, the cards from Ms Massaar to Mr Llamas which were given on occasions such as Christmas and birthdays say little. They are addressed to “Paps” and signed off by “Honey Bee”. In one, Ms Massaar refers to Mr Llamas as “my dearest Papa Noel”, and another says, “You are one of the most amazing person
[sic] I have ever met”. A number include the words “I love
you”. These were given at times when friends, particularly
those involved
in an intimate relationship, traditionally exchange such tokens. They do
exhibit love and affection on the part of
Ms Massaar, but, again, they are not
inconsistent with her account of events, nor the Court’s conclusions
regarding the nature
of their relationship.
Misconstrued evidence
History of joint bank account
[92] Mr van Bohemen submitted the Judge misconstrued the evidence when he
remarked that Mr Llamas:28
... had a financial arrangement for land to be bought in the Philippines, not
with Ms Massaar but with her sister. This does not
support a de facto
relationship between the parties.
[93] The evidence was that the account was jointly held with Ms Massaar’s sister in order to stop Mr Llamas drawing on the funds and that he had originally intended the money to be used for the purchase of land in the Philippines for himself and
Ms Massaar. Mr Llamas’s evidence was that he later closed the account
and deposited the money in the joint account held by himself
and Ms
Massaar.
[94] I accept the evidence did not support Mr Llamas having a financial arrangement to buy land in the Philippines with Ms Massaar’s sister. However, the accuracy of the Judge’s statement regarding this piece of evidence does not assist
Mr Llamas in his endeavour to establish a de facto relationship. Under cross- examination, Mr Llamas maintained the reason he had not opened the account with Ms Massaar but with her sister was that the purchase of land in the Philippines was to be a “surprise for her”. Rather than supporting a de facto relationship, this lends support to the Court’s finding that the commitment to the relationship was one-sided, with Mr Llamas taking unilateral initiatives without the involvement of Ms Massaar. This is consistent with Ms Massaar’s own evidence regarding the characterisation of
the relationship, and the way Mr Llamas was seeking to act on her
behalf.
28 At [23](4).
Sleeping arrangements on holiday
[95] In reviewing the evidence of the holidays the parties went on
together with others, the Judge observed that Mr Llamas, Ms
Massaar and her
mother slept in three single beds while on holiday in Kaikoura as not being
strong evidence of a de facto relationship.
Mr van Bohemen submitted that
evidence was only of what occurred on one night when the parties were staying in
a motel and does not
tend to prove or disprove the existence of a de facto
relationship.
[96] That observation is entirely correct. It is not strong evidence either way. However, the Family Court Judge did not rely on this evidence as pointing against a de facto relationship, but merely that it did not go in favour of the relationship for which Mr Llamas was contending by reference to the parties having holidayed together. A feature of the evidence relating to the holidays is that, contrary to
Mr Llamas’ claim they were in the nature of romantic getaways, the
evidence showed they were trips and excursions shared with
others and more in
the nature of group social events.
Hereford Street
[97] Mr van Bohemen submitted the Family Court was incorrect to find
that
Mr Llamas keeping of the Hereford Street property suggested a clandestine element to the relationship that counted against the finding of a de facto relationship. He submitted the parties mutually used that property to keep their relationship from
Ms Pagtalunan, and that Ms Massaar also used it to receive mail.
[98] Judge Brandts-Giesen’s finding was that Mr Llamas maintained his own lodgings in Hereford Street, where he went from time to time, particularly when
Ms Pagtalunan was around. He noted there was an element of secrecy in the parties’ relationship, particularly in terms of keeping it from Ms Pagtalunan. The Judge concluded that “this tends to suggest they were not in the de facto relationship but,
rather, a clandestine
one”.29
29 At [23](6).
[99] I consider this was an available conclusion. As already observed,
the fact the relationship was clandestine would generally
count against the
finding of a de facto relationship. The Family Court Judge acknowledged the
possibility of two separate de facto
relationships running at times
contemporaneously, and that it was well- established in law that a person can be
in two qualifying
relationships at the same time.30 However, the
fact Mr Llamas maintained a separate residence was a matter which the Family
Court was entitled to take into account
as tending against the existence of a de
facto relationship.
[100] I do not consider the Judge misconstrued the evidence as it
related to
Mr Llamas’ own accommodation at Hereford Street which he
retained while
Ms Massaar remained in a de facto relationship with Ms Pagtalunan. Mr Llamas
kept his rental accommodation at Hereford Street for
a number of years, not only
while Ms Massaar and Ms Pagtalunan maintained their de facto relationship but
for a further year, even
after Ms Massaar’s de facto relationship with Ms
Pagtalunan ended, and there was no longer any need to keep their relationship
secret from Ms Pagtalunan. This tends to support the evidence of Ms Massaar that
she never lived together with Mr Llamas as a couple
at Tilford
Street.
Life insurance
[101] An insurance policy was taken out in 2008 by Mr Llamas in
which he nominated Ms Massaar as the beneficiary. Other
policies were taken
out later in the relationship for the parties’ mutual benefit. In respect
of the earlier insurance policy,
Ms Massaar’s evidence was that she was
the beneficiary in order to ensure that the money from the life insurance policy
went
to Mr Llamas’ children rather than his wife. Judge Brandts-Giesen
observed in his judgment that this arrangement “although
odd at one
level” was an arrangement that was initiated by Mr Llamas and not at Ms
Massaar’s request.
[102] Mr van Bohemen submitted that having made that observation the Court failed to recognise that this evidence relating to the life insurance policies was one of mutual
commitment and was consistent with the parties’ willingness
to enter into joint
30 DM v MP, above n 8; Greig v Hutchinson [2015] NZHC 1309, [2015] NZFLR 587 at [32].
financial arrangements. That inference was no doubt potentially one that was
available to Mr Llamas in support of his case. However,
the point being made by
the Family Court Judge was that an uncontested part of that arrangement, as
indeed with the later insurance
policies, was that these were again initiatives
taken by Mr Llamas. As with the other financial steps taken by Mr Llamas, there
is
no suggestion Ms Massaar initiated, made any suggestions, or took any steps,
to have these arrangements put in place. This evidence
is consistent with the
Family Court’s overall characterisation of the relationship as one-sided,
and a lack of financial intermingling,
particularly by Ms Massaar.
Review of s 2D(2) criteria
[103] Mr van Bohemen took me through the s 2D criteria and the evidence
which Mr Llamas relied upon to establish he was in a de
facto relationship with
Ms Massaar. Much of that was a repetition of the evidence which has already been
canvassed in relation to
the challenged conclusions of the Family Court Mr
Llamas which I have reviewed. However, in deference to Mr van Bohemen’s
submissions, I consider each factor in turn.
Nature and extent of common residence
[104] Mr Llamas maintained the parties had two common residences between
2008 and 2013, being Tilford Street and Hereford Street.
Ms Massaar denied
these were common residences. The unchallenged evidence of Ms Pagtalunan was
that she shared the Tilford Street
address with Ms Massaar and occupied the
address with her on a three month on, three month off basis in accordance with
her work
duties. While Ms Pagtalunan was away at sea, Ms Massaar had a
relationship with Mr Llamas which may well have included him staying
at the
Tilford Street address consistent with their sexual relationship during these
periods. However, throughout Mr Llamas maintained
his rental accommodation at
Hereford Street.
[105] After Ms Pagtalunan and Ms Massaar separated in July 2012, they entered into a relationship property agreement. Ms Massaar was permitted to occupy the Tilford Street address for a further year because the St Johns Street property was the subject of a long-term lease, yet Mr Llamas continued with his Hereford Street
accommodation. Ms Pagtalunan returned to New Zealand in February 2013. For a
short time she and Ms Massaar resumed sexual relations,
and Ms Pagtalunan sought
to reconcile with Ms Massaar.
[106] At the time of Ms Massaar and Ms Pagtalunan’s separation it was
recognised the St Johns Street property would be in
need of renovation. That was
provided for in the relationship property agreement, with provision being made
for the replacement of
whiteware and an allowance of money to replace the
kitchen. In the following year Mr Llamas committed himself to assisting Ms
Massaar
in the renovation of the St Johns Street property. This was likely
because of his belief in the nature of the relationship he had
developed with Ms
Massaar. However, as I have already observed, Ms Massaar considered the
initiatives taken by Mr Llamas were excessive,
and involved him taking control
not only of her property but her life. This led to the breakdown in the
relationship in late-2013
and Mr Llamas’ expulsion from the
property in January 2014.
Sexual relationship
[107] The parties relationship was certainly of a sexual nature,
however, the regularity of that aspect was disputed.
Ms Massaar maintained the
sexual relationship was of a casual nature. Until the breakdown of Ms
Massaar’s de facto relationship
with Ms Pagtalunan, her sexual
relationship with Mr Llamas, given its clandestine nature, had the hallmarks of
an ongoing affair.
Financial dependence/interdependence
[108] Items of expenditure which Mr Llamas incurred for Ms Massaar’s benefit have already been traversed, as have arrangements Mr Llamas made regarding the opening of a joint bank account, insurance policies, and contributions in the form of labour and monetary payments towards the house renovations. These details across the four to five years of the parties’ relationship can be taken into account in assessing the nature of that relationship. Spread over that period of time, the identified items are discrete and somewhat sporadic, at least until the parties’ occupation of the St Johns Street property, at which point there are conflicting accounts as to the circumstances relating to the expenditure by Mr Llamas.
[109] As has already been observed, while that evidence is capable of
supporting the type of relationship for which Mr Llamas contends,
it is at least
equally consistent with Ms Massaar’s narrative of unilateral actions taken
by him in pursuit of a more permanent
type of relationship which Ms Massaar did
not want. A feature of the evidence is that apart from the contested evidence
relating
to the living arrangements and occupation of the addresses, there is no
evidence of any reciprocal expenditure, effort, or arrangements,
financial or
otherwise which marks a willingness on the part of Ms Massaar for a relationship
involving financial interdependence.
Ownership and use of property
[110] The circumstances relating to the use and occupation of the Tilford
Street,
St Johns Street and Hereford Street properties has already been
considered.
[111] The parties had their own separate bank accounts and vehicles. Unsurprisingly, they each had their own separate Kiwi Saver accounts. Mr Llamas placed some emphasis on the joint BNZ investment account that was opened in December 2010 and which by June 2012, with interest, had a balance of $12,710. The money to open the joint Westpac account was transferred by Mr Llamas from the BNZ account and comprised the same funds that he originally held in the joint names of himself and
Ms Massaar’s sister. He effectively later substituted Ms Massaar for
the sister. $5,700 was transferred by Mr Llamas to Ms Massaar’s
account in
October 2013 which, on Mr Llamas’ evidence, was for expenditure she had
incurred in relation to St Johns Street.
Mr Llamas’ evidence as to what
happened to the balance of the account is unclear. He suggested that some was
used on the renovation
of the St Johns Street property, but that he had
“lost track” of where the money went.
Mutual commitment
[112] The degree of mutual commitment has already been the subject of some
focus.
Mr van Bohemen submitted there was no requirement for equality of commitment between parties in order for a de facto relationship to be found established. Nevertheless, the Act refers to “the degree of mutual commitment to a shared life” as a matter to be taken into account when determining whether two persons were living
together as a couple and clearly is a material factor in the circumstances of
the present case.
[113] Ms Massaar’s evidence was unequivocally to the effect she did not at any stage commit herself to a shared life with Mr Llamas. The only evidence to which
Mr Llamas can point to challenge Ms Massaar’s stated position are
cards, photographs and gifts she gave him, the use of a secret
cell phone, and
holidays the parties took together. These elements of the evidence have already
been discussed. That evidence is
equally consistent with the type of
relationship which Ms Massaar described having with Mr Llamas and falls short of
establishing
that Ms Massaar had a commitment to a shared life with Mr
Llamas.
[114] As already observed, the joint account(s), which was not for the
purpose of day-to-day expenditure, for which it appears the
parties used their
own accounts, the purchase of life insurance policies, and the contested
position of the parties regarding Ms
Massaar seeking fertility treatment, are
matters that can be taken into account in assessing the degree of mutual
commitment, and
assessing the relationship as a whole.
Care and support of children
[115] The parties did not have a child through their relationship and do
not share in the care and support of any child.
Performance of household duties
[116] Mr Llamas’ evidence was that he contributed to household duties by cooking and cleaning. This was recognised by the Family Court Judge. However, he observed it was not unusual for a boarder or flatmate to share in the housework. Mr Llamas’ evidence regarding household chores and the payment of living expenses was particularly focussed on the period during which Ms Massaar was completing her studies. In 2010, Ms Massaar graduated with a bachelor of science in nursing, before taking up a position as a registered nurse. She had a student loan to pay for her tertiary education and there was evidence of other expenses being paid by Ms Massaar and
Ms Pagtalunan, from their joint bank account.
Public aspects of the relationship
[117] The parties were observed by other members of their families and
friends as sharing a relationship. They were seen participating
in social
events together such as the holidays which they shared with other friends and
family. Beyond that there is no evidence
of the parties presenting themselves
in any formal way to officials, employers, or public or private entities, as a
couple sharing
their lives together. There was correspondence from Fertility
Associates which appears to treat the parties as a couple which Ms
Massaar
maintains was the result of the author misconstruing their personal
circumstances.
Other matters
[118] Mr van Bohemen acknowledged that a significant feature of this case
was the pre-existing de facto relationship between Ms
Massaar and Ms Pagtalunan.
The existence of that relationship is a relevant factor to be taken into account
and is an important feature
of the factual matrix. Mr van Bohemen sought to
distinguish the circumstances in the present case from that of Greig v
Hutchinson, where the contended for de facto relationship was compared with
the respondent’s marriage which existed throughout the period
of the
claimed relationship.31 Gendall J held the existence of the
marriage resulted in the respondent’s primary commitment being to his
wife, and that he
could not have been committed to the relationship with the
appellant to the degree necessary to establish a de facto relationship.
As a
result, it was determined there was no contemporaneous marriage and de facto
relationship.
[119] I accept that case can be distinguished and that, as recognised by the Family Court, it is possible for a person to be in two concurrent de facto relationships. However, the existence of the de facto relationship between Ms Massaar and
Ms Pagtalunan until July 2012 and the arrangements made by the parties to conduct what both parties appear to have considered, at least at the time, was an “illicit” relationship during that de facto relationship is a material factor to be taken into
account. Its existence and the nature of their arrangements which
necessarily limited
31 Greig v Hutchinson, above n 30.
the continuity and extent of their own relationship counts against the
existence of a de facto relationship between the parties during
the period until
July 2012.
Conclusion
[120] In Miller v Carey, Gendall J summarised the approach to be
taken to whether parties were living together as a couple in a de facto
relationship:32
[19] Determining the point at which it can be said that the parties are
living together as a couple requires the Court to make
a holistic assessment of
the relationship and a determination as to whether that relationship can
properly be described as a “de
facto” one. When undertaking this
task, Courts must examine all facets of the relationship, including those set
out in s 2D(2).
However, a mathematical or arithmetical assessment of those
non-exhaustive factors will not suffice. There is always a need to stand
back
and assess the relationship as a whole – a qualitative rather than
quantitative determination is called for.
[20] In most case where the parties dispute the existence of (or the
date of commencement or determination of) a de facto relationship,
the Court
will be called upon to discern, and adjudicate upon, disparate strands of
evidence drawn upon by each party. It is the
assessment of the cumulative
weight of that evidence which will be determinative.
[121] After reviewing Mr Llamas’ critique of the findings of the
Family Court Judge and the s 2D(2) criteria, I do not consider
there was any
material error in the Judge’s decision. I consider the Family
Court’s conclusions and overall characterisation
of the parties’
relationship as being one that fell short of a de facto relationship was
correct. The competing narratives
of the parties regarding the nature of their
relationship were in many respects very far apart. Judge Brandts-Giesen clearly
found
Ms Massaar the more credible witness. Insofar as the Family Court had the
advantage of seeing and hearing the witnesses, that must
be
recognised.
[122] Much of Mr Llamas’ evidence regarding the assistance he
provided to
Ms Massaar was not contested. However, it does not follow that his generosity should be interpreted as contributions to a shared life together as a couple in the absence of reciprocity or evidence of the other party’s willingness or acceptance of such a relationship. It is apparent Mr Llamas shared an affectionate and intimate relationship
with Ms Massaar, and which, while secret from Ms Pagtalunan, was known
to other
32 Miller v Carey, above n 1.
family members and friends. The difficulty for Mr Llamas is the absence of
evidence which demonstrates a mutual commitment by Ms Massaar
to engage in a
joint life with him, or that showed she had allowed herself, or was willing, to
share such a relationship with Mr
Llamas. Overall, the evidence is to the
contrary.
Section 14A
[123] Mr van Bohemen submitted as an alternative argument that should the
Court find there was no qualifying de facto relationship
there was such a
relationship albeit of short duration which required the Family Court to
consider s 14A of the Act. That section
provides that where the Court is
satisfied the applicant has made a substantial contribution to a de facto
relationship of less than
three years it may make an order determining the share
of each de facto partner in accordance with their respective contributions,
but
only if a failure to do so would result in serious injustice. In order for s
14A to be considered the parties must have been
in a de facto relationship
albeit one of less than three years.
[124] I have given close consideration as to whether at some point after
the end of Ms Massaar and Ms Pagtalunan’s relationship
in July 2012, the
parties’ circumstances gave rise to them living together as a couple in a
de facto relationship. I am not
satisfied they did.
[125] Much of my consideration and analysis of the evidence upon which Mr Llamas relies is also applicable to the period after July 2012. However, the factor that significantly counts against a finding of a de facto relationship after that date is the retention by Mr Llamas of his rental accommodation in Herefore Street. He did not give up the tenancy until July 2013. After Ms Massaar and Ms Pagtalunan separated there was no need for the parties to maintain two addresses. Ms Massaar had obtained the right to occupy the Tilford Street address for a further year pursuant to the agreement with Ms Pagtalunan. As an alternative, the rental property at Hereford Street was available to the parties. They therefore had the opportunity to elect to live together as a couple at one or other of the addresses but that did not occur. The continuation of that arrangement, whereby the parties each kept their separate
addresses, tends to support Ms Massaar’s evidence that Mr Llamas did
not live, and had never lived, with her as a couple at
Tilford
Street.
[126] I accept that Mr Llamas moving to St John Street in or around
July/August
2013, at the same time as Ms Massaar, marks a change in circumstances. As already discussed the parties gave divergent evidence regarding the living arrangements at St John Street. Ms Massaar claimed Mr Llamas moved in as a flatmate, whereas
Mr Llamas maintains this was the continuation or progression of
their existing relationship as a couple. Mr Llamas’
involvement both in
terms of his labour and expenditure in respect of the renovations at St John
Street supports his position. However,
as already discussed Ms Massaar’s
evidence is that his involvement and apparent taking control of the project was
something
which alarmed her and she did not want.
[127] Whatever the merits of the parties’ respective contentions, in
a relatively short period, a little over five months,
the relationship was at an
end and Mr Llamas was required to be removed from the St John Street
property. The relatively
rapid deterioration in their relationship over that
short period does not favour a finding that they were living together as a
couple.
In particular, Ms Massaar’s resistance to the way Mr Llamas was
taking the initiative and asserting control over her property,
and indeed
herself, and which resulted in the termination of their relationship, would make
such a finding unsupportable.
[128] Even if during that short period the parties’ situation
was capable of constituting a de facto relationship,
because of its relative
brevity and the dynamic of that relationship, I do not consider any serious
injustice would arise from not
making an order for the division of a share of
the property in those particular circumstances. As the Family Court observed Mr
Llamas
may have civil remedies available to him but they lie outside the
framework of the Act.
Result
[129] For the reasons discussed, the appeal is dismissed.
Costs
[130] Ms Massaar, as the successful party, is entitled to scale costs on a
2B basis. It is anticipated the parties can agree costs.
In the event that
costs are disputed counsel are to exchange and file memoranda (not more than
three pages).
Solicitors:
Stephen van Bohemen Barrister, Christchurch
Alpers & Co – Northwest Law Office, Christchurch
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URL: http://www.nzlii.org/nz/cases/NZHC/2018/357.html