THOMPSON v PUBLIC TRUST [2014] NZHC 1374

THOMPSON v PUBLIC TRUST [2014] NZHC 1374 [18 June 2014]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV-2013-485-1511[2014] NZHC 1374IN THE MATTER OF an appeal under s 39 of the Property(Relationships) Act 1976BETWEEN ANNETTE COLLEEN THOMPSONAppellantAND PUBLIC TRUST as administrator of theEstate of SCOTT PHILIP HILLMANFirst RespondentCRYSTAL PAM COSTELLOSecond RespondentHearing: 26 February and 14 May 2014Appearances: A G Gray for appellantN J Davis for first respondent (abiding - leave to withdrawgranted)B J J Sheehan for second respondentJudgment: 18 June 2014JUDGMENT OF CLIFFORD JIntroduction[1] This appeal concerns the estate of Scott Hillman[2] The second respondent, Crystal Costello, was in a de facto relationship with Mr Hillman at the time of his unexpected death on 6 November 2008. Mr Hillman died intestate. On 24 May 2013 in the Family Court at Wellington Judge Moss determined that, in terms of the Property (Relationships) Act 1976 and the Administration Act 1969, at the time of Mr Hillman's death his and Ms Costello's defacto relationship was not one of short duration.[3] Annette Thompson, the appellant and Mr Hillman's mother, now appeals thatdecision.Background[4] Based on my assessment of matters, the following is an outline of the chronology of Ms Costello and Mr Hillman's relationship:19 February 2005: Ms Costello and Mr Hillman meet meaningfully for the first time. Ms Costello was 20, Mr Hillman 23. They quickly form a relationship.February–April 2005: Ms Costello and Mr Hillman's relationshipdevelops.April 2005–June 2006: Ms Costello and Mr Hillman spend increasing amounts of time together, overnighting together four to five times a week at Mr Hillman's flats atMiddleton Road and then Colchester Crescent, and also at Ms Ward's parents' house.29 July 2005: For Ms Costello's 21st birthday, Mr Hillman gives her an engraved ring and silver bangle.September 2005: Ms Costello and Mr Hillman are spending five to six nights together when Ms Costello's parentsmove overseas in September 2005.March/April 2006: Ms Costello visits her parents overseas.10 June 2006: Shortly after her return, Ms Costello moves in with Mr Hillman at his flat in Colchester Crescent.April/June 2006: Ms Costello and Mr Hillman adopt a pet dog together.March 2007 Ms Costello and Mr Hillman move (alone) into Ms Costello's parents' home. Ms Costello'sparents are still overseas. Mrs Thompson lives with them there from January to March 2008.6 November 2008: Mr Hillman dies whilst Ms Costello and Mr Hillman are still living together at Ms Costello's parents' house.[5] Unbeknown to Ms Costello, Mr Hillman continued in a relationship with his former de facto partner, Ms Steeneken, from the time he met Ms Costello until April 2006.[6] In February 2008 Mr Hillman and Ms Costello agreed to purchase an investment property together (as joint tenants) at Staysail Place, Whitby, Porirua for $312,000. That purchase was funded by a $30,000 cash contribution provided by Mr Hillman and, for the balance, a bank mortgage. At the same time, as joint proponents and policy owners, Mr Hillman and Ms Costello jointly insured their separate lives for $300,000.[7] On 9 May 2008 Mr Hillman and Ms Costello entered into an agreement (the Contracting Out Agreement) contracting out of the provisions of the Property (Relationships) Act. The Contracting Out Agreement, in essence, provided that:(a) Mr Hillman and Ms Costello had been living in a de facto relationship since 10 June 2006.(b) Mr Hillman and Ms Costello would retain as separate property their individual assets and liabilities existing as at 9 May 2008.(c) All property purchased jointly by them during their de facto relationship would be relationship property, excepting that part of Staysail Place that represented Mr Hillman's $30,000 cashcontribution, which was to remain his separate property and for which he was entitled to receive a credit from the equity in the property (as relationship property) when it was divided.[8] The Contracting Out Agreement also explicitly records that a Pontiac Le Mans motor vehicle which Mr Hillman had owned prior to the commencement of the relationship was to remain his separate property.[9] There has been no challenge to the validity of the Contracting Out Agreement.[10] Following Mr Hillman's death, issues quickly arose between Ms Costello andMrs Thompson relating to the administration and distribution of Mr Hillman's estate.Mrs Thompson had not been aware of the true nature and extent of Mr Hillman'srelationship with Ms Costello until April 2006, shortly before Mr Hillman and Ms Costello moved into Mr Hillman's Colchester Crescent flat. Quite clearly, Mrs Thompson preferred Ms Steeneken as her son's partner over Ms Costello.[11] Without those estate issues being resolved, as owner (by survivorship) of the Staysail Place property and of the life insurance policy on Mr Hillman's life, and the proceeds thereof, Ms Costello paid off the mortgage and sold Staysail Place for $310,000. That sale only occurred after Ms Costello's solicitors had agreed to holdon trust, pending resolution of those issues, Mr Hillman's $30,000 initialcontribution together with one half of the remaining equity of the property. On that basis, approximately $165,000 was subsequently deposited to a trust account for that purpose. As I understand it, that reflects the substance of Mrs Thompson's claimthat, in the circumstances, she has a substantial entitlement to the proceeds of the sale of Staysail Place and the insurance policy on Mr Hillman's life. Moreover,Mrs Thompson is of the view that her son and Ms Costello's de facto relationshipwas one of short duration, and it is because of that (at least in part) that the claimed entitlement arises. This extract from the cross-examination of Ms Costello by counsel for Mrs Thompson at the time of the hearing in the Family Court evidences that understanding, at least at that time:Q Right. Now, the, the final matter I just want to talk to you about please Ms Costello is this. I imagine you're recently up to speed on what the issues are under the Administration Act. You know now, don't you,about section 77 of the Administration Act and you know about these categories that sit in that section of the Administration Act. Is that the position?A Yes.Q And you know that if it's a relationship of a short duration then it goesto the intestate, the, the, the intestate's estate –A Correct.Q – goes to the intestate's parents?A Yes.Q If it's not, if it's a marriage of longer than short duration then it goes tothe surviving de facto partner.A Yes.[12] Mrs Thompson commenced proceedings in this Court to be appointed administrator of Mr Hillman's estate. She identified a number of issues which she asserted needed to be determined to decide the extent of and the parties' entitlementsto Mr Hillman's estate. By consent, those proceedings were resolved by theappointment by the High Court of the Public Trust as administrator of Mr Hillman'sestate.1 As directed, the Public Trust commenced proceedings in the Family Court in March 2011. In the first instance, the Family Court was asked by the parties to rule on whether Mr Hillman and Ms Costello were in a de facto relationship and if it was a relationship of short duration.[13] Having considered all the evidence, the Court was satisfied that Mr Hillman and Ms Costello had begun living together in a de facto relationship from September 2005.2 At the time of Mr Hillman's death in November 2008 thatrelationship was not, therefore, a de facto relationship of short duration, that is one of a period of less than three years. It is that decision which is the subject of this appeal.[14] I first considered this appeal on 26 February 2014. As recorded in my subsequent minute,3 I adjourned the appeal as I was not persuaded – and I remain unpersuaded – that the determination of the duration of Mr Hillman and Ms Costello's de facto relationship was as significant for the substantive issue relating to the division of property at large between Mrs Thompson and Ms Costello as they would appear to have considered. Nevertheless, I accepted that the question was of some limited significance as to how those differences of view were to be1 Thompson v Costello HC Wellington CIV-2008-485-2825, 7 October 2010.2 Public Trust v Costello [2012] NZFC 8843.3 Thompson v Public Trust HC Wellington CIV-2013-485-1511, 6 March 2014.resolved. On that basis, I invited the parties to consider their positions as regards this appeal.[15] In separate memoranda each dated 21 March 2012, counsel for Mrs Thompson and Ms Costello confirmed they wished this Court to consider and determine Mrs Thompson's appeal against Judge Moss' decision. I do so now,setting aside for the purposes of that exercise my current view as to the significance of the status of the de facto relationship. I return to that issue at the end of this judgment.The nature of this appeal[16] This is an appeal by way of rehearing.4 As such, the principles articulated by the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar apply. That is:5[5] The appeal court may or may not find the reasoning of the tribunal persuasive in its own terms. The tribunal may have had a particular advantage (such as technical expertise or the opportunity to assess the credibility of witnesses, where such assessment is important). In such a case the appeal court may rightly hesitate to conclude that findings of fact or fact and degree are wrong. It may take the view that it has no basis for rejecting the reasoning of the tribunal appealed from and that its decision should stand. But the extent of the consideration an appeal court exercising a general power of appeal gives to the decision appealed from is a matter for its judgment. An appeal court makes no error in approach simply because it pays little explicit attention to the reasons of the court or tribunal appealed from, if it comes to a different reasoned result. On general appeal, the appeal court has the responsibility of arriving at its own assessment of the merits of the case.[16] Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a valuejudgment. If the appellate court's opinion is different from theconclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error for the High Court to defer to the lowerCourt's assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.(footnotes omitted)4 Property (Relationships) Act 1976, s 39 and District Courts Act 1947, s 75.5 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.[17] Evidence was given orally in the Family Court, and was subject to cross- examination and re-examination. The Judge had the benefit of hearing that evidence, and of seeing and assessing the witnesses. I acknowledge that I do not have that benefit. I also acknowledge the particular expertise of the Family Court in dealing with questions of family law within its specialised jurisdiction.[18] I proceed accordingly.The challenged Family Court decision[19] Mrs Thompson argued in the Family Court that, as recorded in the Contracting Out Agreement, Ms Costello's and Mr Hillman's de facto relationshiphad commenced on 10 June 2006. Therefore on 6 November 2008 it was one of short duration. Ms Costello's evidence was that she and Mr Hillman were living together in a de facto relationship from April 2005; that is from the time they began spending four to five nights a week together at Mr Hillman's flat at Middleton Road.On that basis, on 6 November 2008 it was a de facto relationship of long duration.[20] The Judge found that, in fact, Mr Hillman and Ms Costello were in a de facto relationship from September 2005 when they were spending most nights together at Ms Costello's parents' house. On 6 November 2008 theirs was, therefore, a de facto relationship of long duration.[21] The Judge expressed, as is the case, that the term "living together as a couple" included a number of elements, and that the existence of one commonresidence – not shared by Mr Hillman and Ms Costello until June 2006, was not a precondition to the concept of living together. The fact that Mr Hillman and Ms Costello had elected the date of the start of their de facto relationship as 10 June 2006 did not bar a finding in favour of an earlier date. Each case was to be decided on its own facts. Whilst judicial descriptions of the state of living together could assist, commonsense and experience remained matters of universal importance.[22] Taking all matters together, the Judge was satisfied that Ms Costello and Mr Hillman had begun living together in a de facto relationship in September 2005. In doing so, the Judge accepted Ms Costello's evidence that in September 2005 theywere spending most nights together and that their future together had been clear to them from that time onwards. From that time, they had a mutual commitment to a shared life. Although Mr Hillman had concealed the extent of their relationship from his family, Ms Costello's family and their mutual friends saw them as a committedcouple. They remained living in that relationship until the time of Mr Hillman'sdeath in November 2008.Case on appeal[23] Mrs Thompson challenges the Family Court decision on essentially four grounds.[24] First, the Contracting Out Agreement was a binding agreement under s 21 of the Property (Relationships) Act. It was intended to have, and had, contractual status. No application had been brought under the Act to have it set aside.[25] In the Family Court, it had been argued for Mrs Thompson that, as the Contracting Out Agreement was binding, it resolved for Property (Relationships) Act purposes the date of the commencement of their de facto relationship. The Judge had not taken account of that consideration. As a matter of law, the Judge should have considered herself bound by the parties' stipulation. In terms of s 21G of the Property (Relationships) Act, there was no other rule of law or equity that made the Contracting Out Agreement void, voidable or unenforceable on any other ground.[26] Second, and alternatively, if the Contracting Out Agreement did not, as a matter of law, determine the date of the commencement of Mr Hillman and Ms Costello's de facto relationship, the Judge had failed to give appropriate weightto the significance of their having agreed that their de facto relationship commenced on 10 June 2006. In this context, the evidence of Mr Hillman's solicitor, Ms Lester,was important. She had explained the concept of de facto relationships to Mr Hillman and, based on her advice, Mr Hillman had been satisfied that 10 June 2006 was the correct date for the start of the relationship. Ms Costello had been independently advised at the time. The couple would, therefore, have known of the significance of the legal document and would have been concerned to make sure it was correct.[27] Thirdly, the Judge had wrongly applied the s 2D(2) indicia: the Judge appeared to have compressed those indicia into a single test when she had observed, in the context of Mr Hillman and Ms Costello's relative youth when they met and thefact that they had little property to share, that "it appears to me that consideration ofthe degree of mutual commitment to a shared life will become more important than the degree of financial independence or the ownership and acquisition of property".6Mrs Gray's submission was that, when analysed appropriately, the s 2D(2) indicia supported the conclusion that Mr Hillman and Ms Costello's de facto relationshipcommenced in June 2006. Mrs Gray noted that it was around that time that Mr Hillman finally ended his relationship with Ms Steeneken and that Ms Costello returned from a holiday with her parents in New York, moved out of her family home and moved in with Mr Hillman. At that point Mr Hillman and Ms Costello had together adopted a dog: that was their first, and symbolically significant, joint acquisition.[28] Fourthly, the Judge had made a number of more specific factual errors that had incorrectly influenced her consideration of the s 2D(2) indicia.[29] For Ms Costello, Mr Sheehan first emphasised the fact that all the deponent witnesses had given evidence before the Family Court Judge regarding matters thathad occurred quite some time ago. Therefore, the Judge's ability to assess theircredibility and reliability was important and gave her a significant advantage over me. I should be cautious in overturning her factual findings that were based on her credibility and reliability assessments.[30] The Judge had properly considered the Contracting Out Agreement. As a matter of law, that agreement did not preclude the Judge from finding, as she had done, that Mr Hillman and Ms Costello's de facto relationship began earlier than the date stipulated. Moreover, the Judge had assessed the significance of Ms Lester'sevidence. Ms Lester had not tested Mr Hillman's agreement to that date, nor had sheseparately assessed the s 2D(2) indicia. She had simply explained the legal position to Mr Hillman and accepted without question his view as to how the relevant law applied to him and Ms Costello.6 Public Trust v Costello, above n 2, at [16].[31] The Judge had assessed the s 2D(2) indicia. The Judge had, in her decision, specifically referred to seven of those nine factors.7[32] Mr Sheehan did acknowledge that the Judge had made two factual errors, to which I return. But those errors were not material, and did not affect the Judge'sconclusion (preferring Ms Costello's evidence) that the first meeting betweenMrs Thompson and Ms Costello had taken place after March 2005 and before January 2006.[33] More generally Mr Sheehan emphasised the significance, in terms of the development of Ms Costello and Mr Hillman's relationship, of the move byMs Costello's parents to New York in September 2005. It was clear that from thenon, as the Judge found and as supported by the evidence of Mr Hillman's flatmateMr Chatfield in particular, that Mr Hillman and Ms Costello lived together as a couple in a de facto relationship.[34] In those circumstances, Ms Costello could not discharge her onus ofsatisfying me that the Family Court's decision was wrong, and the appeal should beaccordingly dismissed.AnalysisThe law[35] Section 2D(1) of the Property (Relationships) Act provides: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.[36] The consequences of a relationship being a de facto one, as defined, determine the division of relationship and separate property on separation and, if7 At [16].division under the Property (Relationships) Act is elected, death. Those consequences affect the type of relationship which is properly to be characterised as a de facto relationship.[37] As Heath J observed in B v F:8It is important to ensure that property consequences do not flow from relationships formed between two people that are not necessarily indicative of an intent to share property. For that reason some rigour is required in analysing whether a de facto relationship exists.[38] Subsections (2) and (3) of s 2D provide assistance to the Courts in determining whether a de facto relationship exists:(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.8 B v F [2010] NZFLR 67 (HC) at [48].[39] In DM v MP Miller J, in remarks which place the s 2D(2) indicia in their proper context, observed that:9[23] The legislation delegates to the courts the work of deciding what minimum characteristics are required of a de facto relationship or, to put it another way, what it means to live together as a couple. An inquiry into substantive characteristics is unavoidable not because de facto relationships need differ from marriage but because, unlike marriage, they need not be created by ex ante agreement. The court must decide not only what characterises a de facto relationship but also when such relationship began and ended. Marriage and civil unions are opt-in relationships in which the commencement date is known, but the law may impose the legal status of a de facto relationship retrospectively upon parties whose relationship gradually and without conscious election assumed that character.[24] These decisions [as to whether a relationship is a de facto relationship] are intrinsically difficult in the marginal cases that reach hearing, and they matter all the more because the Act generally affords de facto relationships of more than three years duration the same status asmarriages. The Act's objective of extending the community propertyregime from marriage to de facto relationships rests on the explicit premise that in such relationships, as in marriage, both parties normally contribute in different but equal ways. Put another way, the legislature had in mind relationships in which the differing contributions of two people to their shared life justify the presumptionof equal sharing. [25] In summary, several points may be drawn from this discussion of the legislative purpose and history. A de facto relationship under the Act is one which, no less than marriage, justifies the presumption of equal sharing. It is a relationship of substance. But unlike marriage the status of a given relationship rests on a judicial inquiry into its substance. When undertaking that inquiry the court must consider whether factors that earlier judicial decisions established as indicia of relationships in the nature of marriage are relevant, and if they are it must place them in the balance, giving them such weight as seems right. However, the question that the court must answer is not whether a given relationship exhibits any or all of the indicia, whichwere included to draw the court's attention to relevant considerations.The question is whether the parties lived together as a couple.(footnotes omitted).[40] The Family Court Judge also reflected on the Court's task in determining whether relationships were de facto relationships. Having observed that the evidence tendered to her by Ms Costello was unanimous that she and Mr Hillman were a couple, the Judge then focussed on the concept of living together. In that context she said:9 DM v MP [2012] NZHC 503, [2012] NZFLR 385 (HC).[15] Each case must be decided on its own facts. Some limited assistance is provided by judicial description of the state of living together, but common sense and experience remain matters of universal importance.[16] Likewise, realistic consideration of the nature of the evolution ofrelationships at different stages in people's lives becomes important.The unusual circumstances of the tragic premature death of the deceased in this matter has rendered the judicial examination of the commencement of a de facto relationship between two very young people, who were newly establishing themselves in independent adulthood separately, let alone together, and is particularly difficult. In such a case, it appears to me that consideration of the degree of mutual commitment to a shared life will become more important than the degree of financial interdependence or the ownership and acquisition of property. Even at the later of the two commencement dates which are proposed, neither party owned much. Neither party had much in the way of finance to intertwine. Management of the household was simple, and the degree to which they held themselves out as a couple is of more importance, indicating as it does both a degree of mutual commitment to a shared life, but also disclosing a breadth and depth of planning which, at the ages of these two parties far outstrips actual performance. But it would be wrong to impose upon young people, about to start their first de facto relationship, in the case of the respondent, a requirement for an extent of common residence and a degree of financial interdependence which might be expected of older, more established adults, or of parents.[17] Section 2D of the Act (above), emphasises that all the circumstances of the relationship are to be taken into account. But it does not impose the taking account of all the circumstances of the lives of the aspirants to a relationship. Although behaviour separate from a relationship may affect the appearance of mutual commitment, the nature of the behaviour, in and of itself, is not a relevant consideration.[41] In light of those observations, I make the following comments.[42] I think the Judge's observation that it would be wrong to impose upon young people a requirement for "an extent of common residence and a degree of financial interdependence which might be expected of older, more established, adults or ofparents" needs to be treated with caution. Young people may regard themselves, andothers may regard them, as a couple in the sense that they are going out together and sleeping with each other on a regular basis. But that does not necessarily mean they have entered into the type of relationship which, under the Property (Relationships) Act, will be seen as giving rise to any property sharing consequences at all. In other words, I do not think evidence from one partner of the relationship, or from familyand friends of the relationship, that two people were "a couple" means that the Courtsimply needs to determine whether they were "living together". The issue iswhether, in the context of the Property (Relationships) Act and its propertyconsequences, they are to be regarded as "living together as a couple".[43] Furthermore, I do not think it is correct to say that "although behaviour separate from a relationship may affect the appearance of mutual commitment, thenature of the behaviour, in and of itself, is not a relevant consideration". It seems tome that, whilst the law accepts that two de facto relationships may exist at the one time, that is unusual.10 Moreover, the fact that a person continues a relationship with another person – and the nature of the behaviour demonstrating the continuation of that relationship – whilst at the same time entering into and developing a second relationship with another are, in my view, relevant considerations for the Court when determining whether that second relationship has reached the stage of a de facto relationship.[44] It is against that background that I consider the question of when Mr Hillman and Ms Costello's de facto relationship began.The timing issue[45] The point at issue between Mrs Thompson and Ms Costello is whether Ms Costello and Mr Hillman's de facto relationship was, at the time of his death, oneof long duration or not. For it to be one of long duration, it needed to have begun, at the latest, by 8 November 2005. Ms Costello said it had begun in April 2005. Mrs Thompson said that Mr Hillman had been in a de facto relationship with Ms Steeneken until April 2006, that she had only met Ms Costello a month before Mr Hillman and Ms Steeneken broke up and that she did not believe it was possible for Mr Hillman to have been in a de facto relationship with both Ms Steeneken and Ms Costello at the same time.[46] Importantly, in that context, Ms Steeneken's evidence was not that she was ina de facto relationship with Mr Hillman. Rather, her evidence was that their earlier de facto relationship had continued in a different way – as boyfriend and girlfriend.10 Property (Relationships) Act 1976, s 52B.Ms Steeneken had believed, moreover, that they were fully and solely committed to each other.[47] The Judge concluded that Mr Hillman and Ms Costello's de facto relationshipbegan in September 2005.[48] Ms Costello does not cross-appeal. There is, therefore, no challenge to theJudge's implicit conclusion that Ms Costello and Mr Hillman's de facto relationshipdid not begin in April 2005. Nor, at least as I understood the arguments on appeal, does Mrs Thompson still contend Mr Hillman was in a de facto relationship with Ms Steeneken until April 2006. But, more generally, her proposition remains that the appropriate starting date for Ms Costello and Mr Hillman's de facto relationship isJune 2006, as nominated in the Contracting Out Agreement.[49] It is now clear that Mr Hillman was in a relationship with Ms Steeneken until approximately April 2006. But that does not mean it was impossible for him, in September 2005 as the Judge found, to be in a de facto relationship with Ms Costello. In practical terms, therefore, the question for me is whether the de facto relationship began between Mr Hillman and Ms Costello in June 2006, as nominated by them in the Contracting Out Agreement, or in September 2005 – as the Judge found.[50] I start my consideration of that question with an assessment of the significance of the Contracting Out Agreement. I then consider the other circumstances of the relationship, including – as relevant – the s 2D(2) indicia.The Contracting Out Agreement[51] For Mrs Thompson, Mrs Gray first submitted that as a matter of law, the terms of the Contracting Out Agreement bound the Court. That is, as a matter of law the Court could not find, whatever it may consider the true position to be, that that de facto relationship had commenced on another date. In my view, that proposition only has to be articulated in those terms to demonstrate that it cannot possibly becorrect. At the end of the day, it is the Court's role to determine these types ofdisputes.[52] Whether or not a couple are living in a de facto relationship is not a question of interpreting the Contracting Out Agreement on this point, nor is it an issue of contractual mistake. It is simply not a matter of contract at all. The parties cannot contract out of the fact they are living in a de facto relationship, if indeed they are: what they can contract out of is the property consequences of that legal status. So, the question becomes – when considering the legal question of when Mr Hillman and Ms Costello began living together as a couple – the significance or weight to be given to Mr Hillman and Ms Costello's nomination of 10 June 2006 as the date uponwhich their de facto relationship commenced.[53] Where I do agree with Mrs Thompson is that I consider it appropriate to give more weight to the Contracting Out Agreement than the Judge appears to have done. Having nominated that date, and in doing so having each received independent legal advice, I think there needs to be reasonably compelling evidence that, in fact, their de facto relationship had commenced at an earlier date. I think that conclusion is emphasised by the fact that, as Heath J observed, the consequence of the Court recognising a relationship as a de facto one has essentially property sharing characteristics. Where two people explicitly deal with the property sharing characteristics of their de facto relationship, and at that time agree upon the date when that relationship commenced, the Court should be careful before concluding that the de facto relationship started earlier than the agreed date.[54] The Contracting Out Agreement was entered into by Mr Hillman and Ms Costello on 9 May 2008. At that time, Mr Hillman and Ms Costello had been living together, in Ms Costello's parents' home, since March 2007. The clear inference is that the "prompt" for the Contracting Out Agreement was the impending purchase of Staysail Place. As relevant:(a) Paragraph A of the Background records that "the parties have beenliving together in a de facto relationship since 10 June 2006 and arethe owners of certain property".(b) The Background goes on to record Mr Hillman and Ms Costello'scommitment to buy Staysail Place, the arrangement that Mr Hillmanwas to pay the entire cash contribution of $30,000 and their wish to"record their rights and obligations in respect of this residential andother property and wish to contract out of the provisions of the Property (Relationships) Act 1976 (the Act) pursuant to s 21 thereof tothe extent specified in this agreement".(c) Clause 2 provides as follows:RelationshipSCOTT and CRYSTAL confirm they have been living together in a de facto relationship since 10 June 2006.(d) Clause 3.1 provides:The parties shall retain as their separate property all those assets and be responsible for all liabilities that they had prior to the date of this deed.(e) Clause 3.3 provides:Subject to clause 4 hereof any property purchased jointly by SCOTT and CRYSTAL during their relationship will be relationship property.[55] In other words, and by particular reference to cl 3.1, the property sharing consequence of being in a de facto relationship would, as between Mr Hillman and Ms Costello, only affect property acquired jointly by them before 9 May 2008, and not property that may have been acquired individually which would, but for cl 3.1, have become relationship property because of the way it featured in their living together as a couple.[56] At the same time, per cl 3.3, property purchased jointly during the relationship would be relationship property. Property acquired from a third party by gift, succession or survivorship was to remain separate property.[57] Additionally, Mr Hillman and Ms Costello:(a) acknowledged they had each received independent legal advice before signing the Contracting Out Agreement;(b) accepted that the Contracting Out Agreement would be a bar to future claims they might otherwise have had under the Property (Relationships) Act; and(c) agreed that the Contracting Out Agreement was to be binding in allcircumstances "including separation, the marriage of them both toeach other, reconciliation, bankruptcy and/or the death of either orboth of them".[58] If separate property was intermingled with relationship property as to make separate identification of that separate property impractical, the former owner of the intermingled separate property was to have charge to secure its value.[59] The Contacting Out Agreement is, therefore, significant not only because of the nomination of the date of 10 June 2006, but also because of the operative significance of that date in that agreement. Property purchased jointly after that date was to be relationship property. But property purchased by each of them individually, albeit whilst they were living as a de facto couple, would not become relationship property when it might otherwise have done so.[60] Mr Chatfield gave some important evidence on the significance of the timing of the Contracting Out Agreement. He said that:I believe Scott was the happiest he had been in his life at the time he purchased the rental property with Crystal.Scott was often perceived as being particular and careful about his personal assets and the life decisions he made. I do not believe Scott would have made the decision to buy a house with another person lightly. Accordingly, I believe that the purchase of the rental property is evidence that Scott had decided on building a life with Crystal.[61] I acknowledge that Ms Costello's affidavit evidence was that she andMr Hillman had incorrectly accepted the date of 10 June 2006 "as the date that webegan living with each other due to the fact that this was the date I moved into theColchester Crescent property with the deceased". They did not appreciate theimportance of the commencement date of their relationship and she believed the Contracting Out Agreement would have correctly recorded that they had met inFebruary 2005, and were in a committed relationship by April 2005, had Mr O'Connor asked when their de facto relationship had commenced. But, the factthat they were in a committed relationship by April 2005 would not necessarily, as we now know, have led Mr Hillman to acknowledge that that was a de facto relationship. Given his ongoing relationship with Ms Steeneken, unbeknown to Ms Costello, that may have been rather unlikely. Moreover, a "committed relationship", as assessed from one person's perspective, is not the same as a de facto relationship assessed by the Court.Other circumstances of the relationship[62] My assessment, having regard to all of the evidence, is that the date chosen by Ms Costello and Mr Hillman conforms more accurately to the circumstances of the relationship that I think would establish, as a matter of law, the existence of a de facto relationship.[63] I say that because the date identified, June 2006, coincided with a number of events that support the conclusion that it was then that Mr Hillman and Ms Costello began to live together as a couple:(a) Mr Hillman, we now know, had very recently finally broken off his relationship with Ms Steeneken.(b) Ms Costello had been overseas, visiting her parents in New York. As is often the case, that trip away may have confirmed for both of them the depth of their feelings for and commitment to each other.(c) Ms Costello's evidence was that it was in April 2006, following her return, that they began spending virtually every night together rather than spending four or five nights together a week.(d) It was then that they began to live together jointly and exclusively.(e) It was then they made the symbolic step of obtaining a pet together.[64] In the course of Ms Costello's cross-examination and referring to the matters I have just mentioned, Mr Corkill QC put to Ms Costello that "all of that is quite significant, isn't it?".[65] She replies:Yes but we'd been looking for a dog for six months or so and we'd just had the Pound waiting for a certain and that's when one, we got one. And me moving in, I mean, I wasn't gonna move in with someone I'd only been dating for a few months or anything, so we'd been together well over a yearfrom when we move in together.[66] In that evidence, I think Ms Costello for herself acknowledges the significance of moving in together, as opposed to having been dating, and sleeping together, for some months previously.[67] In my judgment, all of those considerations provide, together, strong support that the de facto relationship between Ms Costello and Mr Hillman did, as they agreed in the Contracting Out Agreement, commence on 10 June 2006.[68] I turn then to the reasons why the Judge identified September 2005 as that date. She did so principally by reference to three of the s 2D indicia: I set out this part of her judgment in full:Finding of mutual commitment to a share life[41] Having considered the evidence as a whole, I am satisfied that in relation to this factor, the deceased and the respondent had, by September 2005 a mutual commitment to a shared life. They were spending time together almost every day. Their friends regarded them as a settled couple. They were talking with other friends about future plans for home ownership and children, the deceased had given the respondent a ring and bangle for her 21st birthday. These wereengraved respectively with "Love you xx" and "Happy 21st ♥ Scott xx". The gift was one of symbolic importance to the respondent. Thedeceased's mother acknowledged that the use of the word "love" wasimportant, and that her son would not use it lightly.The nature and extent of common residence[42] There is no doubt that Scott and Crystal shared a common residence, which was exclusively their residence, from June 2006. However from September 2005 they were together most nights. It is clear but regrettable that Scott had not cleanly resolved his relationship with Jenny by that stage, but I accept the evidence of witnesses for Crystal,both in her own household and in Scott's, that they were together mostnights. Not uncommonly, in their age group, neither of them had settled residence. Crystal was house sitting for her parents. Scott shifted a number of times in the time period under examination, and the address in which Scott and Crystal first had their exclusive and common residence was not one which lasted for long.The reputation and public aspects of the relationship[43] The couple's friends and Crystal's family and neighbours considered they were in a committed settled relationship. Scott's family did not,but he was lying to his family about Jenny, and concealing Crystal. Scott and Crystal were talking about having children and being together for the future, certainly before they lived at Colchester Crescent together, but clearly also by the end of 2005. I acceptCrystal's evidence that the degree of their certainty about the futurewas clear, to both of them, by September 2005.[69] I accept that, by September 2005, Ms Costello and Mr Hillman had a mutual commitment to a shared life. The question here, however, is one of the degree of that mutual commitment. In my view, the fact that Mr Hillman was, at that time, continuing in his relationship with Ms Steeneken is of considerable significance when assessing the degree of his commitment at that time. Mr Shackleton gave his view on that matter in response to a question from Mr Corkill:Q Right. Now paragraph 6 you say you believe Scott and Crystal were in a committed and stable relationship in February -05. What do you mean by that? Do you mean they were sort of – they were dating each other?A Well it's hard to say. He – because he was still with Jenny it was quitea difficult situation for them. Like, he didn't go out anywhere. Didn'treally do anything unless it was very, very well thought out. Like hewouldn't randomly go into town to – sort of but sort of with a bunch of mates in case he would see the other one, see one or the other typething. It's Q So was in a complicated situation?A Yes, very, yeah.Q Where he was effectively in a relationship, let's not define it, with twodifferent people?A Yes yes, yeah.[70] Mr Corkill cross-examined Mr Shackleton on that matter. Mr Shackleton confirmed that until about a month before June 2006 he was aware that Ms Steeneken was still around. He saw her maybe once or twice a week, by that point. Mr Corkill went on.[71] By my assessment of Mr Shackleton's evidence, the ongoing complicationfor Mr Hillman of his continuing relationship with Ms Steeneken continued up until April 2006, when as we now know that relationship finally ended.[72] Mr Hillman's other long-standing friend, Mr Chatfield, gave evidence on this point. In the second of his two affidavits, sworn following the provision of an affidavit by Ms Steeneken pointing to her ongoing relationship with Mr Hillman, he said Mr Hillman was no longer in love with Ms Steeneken but continued to have casual sex with her. He too spoke of Ms Steeneken visiting Mr Hillman maybe once or twice a week on average, when Ms Costello was not there. Mr Hillman told him he did not know how to tell Ms Steeneken he had moved on. Mr Hillman had, in his view, clearly entered into a relationship with Ms Costello but, in his view, "didn't have the guts to completely cut ties with his ex, Jenny".[73] Similarly, that their friends regarded them as a settled couple is not, in my view, especially determinative of whether they were living together as a couple in terms of the Property (Relationships) Act. Friends of their age would regard aboyfriend/girlfriend relationship, and a very serious one, as being that of a "settled couple".[74] By my assessment, the evidence is less clear as to the extent to which, by September 2005, they were talking with other friends about future plans for home ownership and children. Mr Chatfield and Mr Shackleton both acknowledged conversations along those lines with Mr Hillman. By the same token however, Leon Wells, Mr Hillman's brother, said that Mr Hillman never talked about getting engaged to or marrying Ms Costello but did seek advice on how to split up with her. Megan Pearman (Williams), a friend of Ms Costello, gave evidence of conversations with Ms Costello about her future with Mr Hillman, but that was in the later stages of the relationship. Ms Costello's evidence was that she and Mr Hillman had talkedabout the "possibility of marriage and children" from early in their relationship. I do not think such conversations are particularly significant. Such, relatively vague, talk of marriage and children is, in my judgment, indicative of a close relationship which is seen to have long-term potential but is distinct from the more concrete plans andactions that would indicate Ms Costello and Mr Hillman were living together as a couple. They came later.[75] As the Judge found, it was not until June 2006 that Ms Costello and Mr Hillman shared a common residence. It would appear they had been sleeping together for four or five nights a week from sometime earlier than September 2005 and there does not appear to be any particular change, at that time, in the pattern of their relationship. Certainly, Ms Costello's parents moving overseas would probably have made it more convenient for Mr Hillman to say with Ms Costello at her parents'place, which may explain the slight increase in frequency in the nights they spent together. My assessment is, however, that the real change in their relationship came in June 2006.[76] By September 2005, Mr Hillman and Ms Costello had been in a relationship for seven months, and by June 2006 for 16 months. I do not regard that difference in length of time as being particularly significant either way, but at the margin it supports the June 2006 commencement date.[77] In September 2005 they had not established a common residence: they werecertainly sleeping at each other's homes with increasing frequency, but that is not anunusual feature of dating relationships between young people today. By contrast, in June 2006 they moved, together and exclusively, into the flat at Colchester Crescent. I think that fact, as I have indicated in its broader context, provides considerable support for the conclusion that their de facto relationship began at that time.[78] There clearly was a sexual relationship at all relevant times.[79] There was no financial dependence or inter-dependence or any arrangement for financial support between them, nor joint or shared ownership, use or acquisition of property, until – it would appear – February 2008 when they purchased Staysail Place.[80] They had, at all relevant times from April 2005 onwards, a degree of mutual commitment to a shared life. That mutual commitment grew over time. But Mr Hillman continued to see Ms Steeneken. By my assessment, September 2005was still a relatively early stage in their relationship, notwithstanding the affection they felt for each other. When Mr Hillman finally ended his relationship with Ms Steeneken, and the two moved in together then clearly – as they later recognised– that degree of mutual commitment to a shared life had deepened to the point where, by my assessment, they were living together thereafter as a couple.[81] No issues relating to the care and support of children arise and as for the performance of household duties and the like, there was no sharing of those tasks until June 2006 when, as a couple living together, they shared the household chores.[82] Finally, as regards the reputation and public aspects of the relationship, my assessment is that Mr Hillman and Ms Costello's mutual friends saw them as theywere: a young couple, in a serious relationship, and – not uncommonly – sleepingwith each other regularly at each other's houses. They may well have, by September 2005, discussed a possible longer relationship, marriage and children, but I do not see those types of discussions as being particularly determinative of whether they were, in the sense of the Property (Relationships) Act, living together as a couple. By the same token, Mr Hillman's own family, and their friends, continued to seeMr Hillman in a relationship with Ms Steeneken.[83] I also record that, as I assess the evidence, Ms Costello did not place any particular emphasis on September 2005 in terms of their certainty about their joint future. Throughout, Ms Costello emphasised April 2005 as, for a variety of reasons, the commencement of their de facto relationship. Certainly Ms Costello did say that by September or November, and she was not sure which, they were seeing each other every day.[84] Therefore, my assessment is that on the balance of probability and assessing the evidence as a whole, Mr Hillman and Ms Costello's de facto relationship began when they said it began in the Contracting Out Agreement: that is 10 June 2006.[85] In reaching that conclusion, I have not found it necessary to consider in great detail the specific points of evidence on which Mrs Thompson said the Judge got facts wrong. In that context, the important assessment made by the Judge was that there was a considerable overlap in Mr Hillman ending his relationship withMs Steeneken, and being in a relationship with Ms Costello. Clearly, Mrs Thompson was not fully aware of the details of that; that confusion, and what I take to be herdisappointment with her son's actions at that time, are also accepted. Like the Judge,I prefer Ms Costello's evidence on those points. But that does not lead me to altermy overall assessment as to the date on which Ms Costello and Mr Hillman began living together as a couple in a de facto relationship.[86] I therefore allow Mrs Thompson's appeal.[87] I return to the issue prefigured at [15]. Having found the relationship to beone of short duration, the reservations I expressed about the parties' apparentacceptance that equal division of the relationship property followed a determination that the relationship was of long duration – even though Ms Costello had elected to take her entitlements under the rules of intestacy rather than under the Property (Relationships) Act and even though the Court only has jurisdiction to divide property under the Act in such a situation if it is persuaded a serious injustice would otherwise result11 – falls away. I continue, however, to have reservations about the assumptions upon which this case has proceeded and may continue to proceed.[88] The position, I suggest, is this:(a) The bulk of Mr Hillman's property (the proceeds of the sale of thehouse) do not become part of Mr Hillman's estate. Being ownedjointly with Ms Costello they pass to her through survivorship. Section 83 of the Property (Relationships) Act does not, contrary to the views expressed to me by Mrs Gray and Mr Sheehan, alter that position. Section 95 provides that where, as here, a person electsOption B, "nothing in this Act (other than sections 20 to 20F orsections 58 and 59) applies to the distribution of property under the will of the deceased spouse or partner or under Part 3 of theAdministration Act 1969".11 Property (Relationships) Act 1976, s 88(2).(b) Property held in Mr Hillman's name (for example the Pontiac LeMans) passes to Mr Hillman's estate. Unless Ms Costello could persuade the Court that she had made a substantial contribution to the relationship, and that not being entitled to succeed on the intestacy would result in serious injustice to her,12 that property passes to Mr Hillman's parents under s 77 of the Administration Act.[89] To alter that outcome under the Administration Act, again I suggest, an application would need to be made by the Public Trustee, as the personal representative of Mr Hillman, under s 85(3) of the Property (Relationships) Act. That would require the Public Trustee to show that Mr Hillman had made a substantial contribution to the de facto relationship and that, unless an order under the Property (Relationships) Act was made for the division of relationship property, a serious injustice would result.[90] If the Court was persuaded that there would be a serious injustice thendivision would be in accordance with the parties' contributions to the relationship.13This would place a share of the relationship property that corresponds to Mr Hillman's contribution to the relationship into his estate, thus making it available to Mr Hillman's parents when they succeed on his intestacy, and displacing thesurvivorship succession outcome.[91] Whether, and to what extent, the Contracting Out Agreement defines the status of property and/or the division of property will, to the extent it is relevant, be a question for the Court to consider when determining whether a serious injustice arises from Ms Costello receiving the bulk of Mr Hillman's property. As I observedin Court, relevant to that consideration will be the significance of the parties having chosen to own that property as joint tenants, with the implications that arise under survivorship principles on the termination of their relationship – not as a matter of choice between living persons – but by an unexpected and early death. Similarly, the significance of this relationship being of short duration and thus not, ordinarily, subject to the provisions of the Property (Relationships) Act, which to a limited extent the Contracting Out Agreement seeks to amend, will need to be considered.12 Administration Act 1969, s 77B.13 Property (Relationships) Act 1976, s 85(4).[92] Unlike the Family Court Judge I have not placed a suppression banner on this judgment as these proceedings were instituted after s 35A of the Property (Relationships) Act was amended to require suppression only where a child or vulnerable person may be identified. If the parties consider this is incorrect and suppression should be ordered, there is leave to apply."Clifford J"Solicitors:Buchanan Gray, Wellington.Thomas Dewar Sziranyi Letts, Lower Hutt.Avison Reid Logan Lawyers, Lower Hutt.