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Llamas v Massaar [2018] NZHC 357 (8 March 2018)

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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