B v M
[2024] WASCA 34
•5 APRIL 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: B -v- M [2024] WASCA 34
CORAM: BUSS P
MITCHELL JA
VAUGHAN JA
HEARD: 21 APRIL 2023
DELIVERED : 5 APRIL 2024
FILE NO/S: CACV 18 of 2022
BETWEEN: B
Appellant
AND
M
First Respondent
Q
Second Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: FLYNN DCJ
Citation: [2022] WADC 7
File Number : CIV 3011 of 2020
Catchwords:
Family Law - Jurisdiction - Exclusive jurisdiction of Family Court of Western Australia - Where alleged loan agreement between de facto partners - Where claim for breach of loan agreement brought in District Court - Whether the Family Court Act deprived the District Court of jurisdiction conferred by the District Court Act - Whether de facto relationship subsisted for two years - Whether primary judge erred in striking out the action in District Court for lack of jurisdiction
Legislation:
District Court of Western Australia Act 1969 (WA), s 6(1)
Family Court Act 1997 (WA), s 205Z, s 205ZA
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | P J Hannan |
| First Respondent | : | F A Robertson & T Camp |
| Second Respondent | : | No appearance |
Solicitors:
| Appellant | : | Nova Legal |
| First Respondent | : | Butcher Paull & Calder |
| Second Respondent | : | HHG Legal Group |
Case(s) referred to in decision(s):
Britt v Office of the State Coroner [2022] WASCA 75
Emerald v Emerald [2018] FamCAFC 217
Fairbairn v Radecki [2022] HCA 18; (2022) 96 ALJR 529
G v O [2018] WASCA 211; (2018) 53 WAR 393
G v O [2022] WASCA 23
H v P [2011] WASCA 78
Hibberson v George (1989) 12 Fam LR 725
Keremestevski v McLeod [2024] WASCA 12
L v C [2005] FCWA 23
Lynam v Director General of Social Security (1983) 52 ALR 128
Mrowka v Format Finishing Pty Ltd [2009] WASCA 184; (2009) 240 FLR 1
Rennie v Higgon (1981) FLC 91-087
Sewell v Wilson [2010] WASCA 152; (2010) 242 FLR 402
Wilson v Arwon Finance Pty Ltd [2020] WASCA 137
JUDGMENT OF THE COURT:
Overview
The appellant appeals against a decision[1] of a judge in the District Court of Western Australia (Flynn DCJ) striking out the appellant's action for lack of jurisdiction.
[1] [2022] WADC 7 (primary reasons). The primary reasons have been suppressed. To avoid any necessity for suppression of this court's reasons it has been necessary to describe the actors and places in the events that give rise to the litigation in a way that does not identify the parties.
The appellant brought proceedings against the respondents. The first respondent is the appellant's ex‑wife and former de facto partner. The second respondent is the appellant's and the first respondent's son. The second respondent did not participate in the proceedings in the District Court other than as a witness. Similarly, on appeal, the second respondent has given notice that he will abide the outcome and only wishes to be heard on costs. Accordingly, in substance the litigation involves a dispute between the appellant and the first respondent.
In the circumstances it will be convenient to refer to the first respondent as 'the respondent' and the second respondent as 'the son'.
The action in the District Court concerned an alleged loan agreement between the appellant, as lender, and the respondent and the son, as borrowers, in respect of an amount of $477,492.64. The money was used by the respondent and the son to purchase a property in a Perth suburb (property). The appellant alleged that the payment of the $477,492.64 was an advance by way of a loan which was to be repaid from the sale of the property. The sale was to occur within a reasonable time after a minor child of the marriage of the appellant and the respondent, who we will refer to as 'the daughter', ceased to reside at the property. The appellant claimed that this occurred between 18 August 2014 and March 2015. The failure thereafter to sell the property and repay the $477,492.64 was, according to the appellant, a breach of the alleged loan agreement. The appellant sought damages for breach of the alleged loan agreement. In the alternative the appellant sought specific performance of the alleged loan agreement so as to bring about a sale of the property with repayment of the $477,492.64 and interest.
The respondent denied the alleged loan agreement. The respondent also pleaded that:
1.The District Court did not have jurisdiction to determine the claim based on the alleged loan agreement given the exclusive jurisdiction of the Family Court of Western Australia (Family Court) - the respondent relied on s 36(8), s 205Z(1) and s 205ZA(1) of the Family Court Act 1997 (WA) (FCA).
2.The claim was statute barred by reason of the operation of s 13(1) of the Limitation Act 2005 (WA).
The primary judge resolved the jurisdiction issue in the respondent's favour. His Honour rejected two arguments raised on the appellant's behalf to counter the jurisdiction issue. First, that, even if the appellant and the respondent were in a de facto relationship for a duration of two years, the FCA, properly construed, did not have the effect of denying the District Court jurisdiction to determine the action. Second, that, insofar as s 205Z(1)(a) of the FCA provides that the jurisdiction of the Family Court is conditional on that court being satisfied that there has been a relationship between de facto partners for at least two years, the relevant relationship was for less than two years. The primary judge rejected the legal argument and concluded on the facts that the de facto relationship was for a period of at least two years. As a result judgment was entered for the respondents.
Because the action was dismissed for want of jurisdiction the primary judge did not consider whether the appellant had made out the alleged loan agreement. Nor did the primary judge address the limitation defence.
By the appeal the appellant challenges the primary judge's conclusions on the jurisdiction issue. The appellant challenges the primary judge's factual conclusion that there was a de facto relationship of at least two years. The appellant also says that, even if the primary judge's factual conclusion is upheld, the primary judge erred in law in concluding that the District Court lacked jurisdiction to consider and determine the appellant's claims against the respondent and the son. For the reasons that follow both contentions fail. Accordingly, the appeal must be dismissed.
Background facts
The appellant and the respondent were married in the 1980s.[2] They had three children including the son and the daughter.[3] The appellant and the respondent separated in 2006, agreed later that year to consent orders in the Family Court as to their matrimonial property and the respondent's spousal maintenance, and divorced in 2008.[4] Sometime between February and April 2009 the appellant and the respondent resumed intimate relations.[5]
[2] Primary reasons [1].
[3] Primary reasons [1].
[4] Primary reasons [1], [13].
[5] Primary reasons [14].
In a finding that is unchallenged on appeal the primary judge held that a de facto relationship had commenced between the appellant and the respondent by no later than 28 May 2009.[6] From at least that time the respondent and the daughter commenced residing at a property owned by the appellant (which we will refer to as the 'appellant's property') together with the appellant.
[6] Primary reasons [18], [26].
There was a dispute at trial about when the de facto relationship ended. At trial the appellant's contention was that the de facto relationship ended on 18 March 2011 when, as a result of a fight on that day, he ceased residing at the appellant's property.[7] The respondent's contention was that the de facto relationship ended on 21 June 2011 when the appellant told the respondent to 'get out of his house'.[8] In a finding that is challenged by grounds 2 ‑ 4 and 6 ‑ 8 the primary judge held that the respondent had satisfied him that the parties' de facto relationship continued until 21 June 2011.[9]
[7] Primary reasons [43].
[8] Primary reasons [43]. See also primary reasons [40].
[9] Primary reasons [44], [48].
A number of things happened in the five days after 21 June 2011:[10]
1.On 22 June 2011 the respondent moved out of the appellant's property and commenced to reside on a boat owned by the appellant (boat).
2.On 22 June 2011 the respondent sent an email to a lawyer seeking the lawyer's advice on a proposed financial agreement. The appellant had provided the respondent with the proposed financial agreement after receiving it from his lawyers on 15 April 2011.[11]
3.On 23 June 2011 the respondent published a comment on her Facebook page to the effect that she was separating from the appellant.
4.On 26 June 2011 the respondent and the son executed a contract for the sale of land by which they agreed to purchase the property.
[10] Primary reasons [42].
[11] Primary reasons [37].
The appellant and the respondent each gave evidence of a conversation, before identifying the property, in which they canvassed accommodation alternatives for the respondent that would result in the daughter living with the respondent, close to the appellant's property and the daughter's then school.[12] The primary judge summarised the relevant conflict in the parties' evidence as follows:
On one crucial matter, there is inconsistency. [The appellant] gave evidence that he suggested that he buy a house, put it in [the respondent's] name and [the respondent] 'pay it all back once [the daughter] and the family don't have a need for it'. In contrast, [the respondent] gave evidence that she suggested that [the appellant] buy a house in her 'name and it's to be unencumbered' and that [the appellant] replied, 'Fine'.
[The appellant] gave evidence of a further conversation at the time of the first (and only) inspection of [the property] and both liking the property (the Offer to Purchase Conversation). [The appellant] testified that he said to [the respondent]:
Well, this is how it's going to go, I'll pay for it, it'll be in your name, ... it's for [the daughter] and the family, and when there's no longer any need for this property, it's to be sold, and you can keep anything over and above what I've just paid for it.
[The appellant] said that [the respondent] replied, 'Okay'. [The respondent] denied any conversation to this effect on the occasion of the inspection of [the property] (or any time).[13]
[12] Primary reasons [70].
[13] Primary reasons [70] - [72].
This difference in the evidence was reflected in the parties' respective pleaded cases as to the alleged loan agreement.[14]
[14] See: statement of claim dated 18 August 2020 pars 18 - 19 BAB 37 - 39; amended defence dated 4 February 2021 pars 6, 8 BAB 46 - 47.
There was, however, common ground that the appellant and the respondent had a further conversation which ended in them agreeing that the son would be included as a named purchaser with the respondent in any contract to purchase the property. The appellant wanted the son's name to be included on the title to protect against future claims on the property being made by any future partner of the respondent.[15]
[15] Primary reasons [73].
On 10 August 2011 the appellant provided $477,492.64 for the purchase of the property.[16] The $477,492.64 was paid in the following circumstances. On 10 August 2011 the respondent was handed an original and a copy of an 8 August 2011 letter from the appellant to the respondent; the letter was drafted at the initiative of the appellant.[17] It read:[18]
[16] Primary reasons [64].
[17] Primary reasons [66].
[18] GAB 84.
Dear [redacted]
PROPERTY SETTLEMENT
I confirm that we agreed that if our relationship ended, neither of us would have a claim against the assets of the other party, except to the following extent:
•I will purchase in your name the [property], scheduled for settlement on Wednesday, 10 August 2011. The property will have no monies owing against it.
•I will transfer into your name the registration of [a motor vehicle purchased by the appellant and driven by the respondent].
•I will let you collect or receive from me some further agreed household chattel items.
I confirm that we agree that we will remove your name from the offer to purchase [certain apartments].
I ask that you sign and return to me the accompanying copy of this letter to acknowledge that we agree that this is a binding agreement.
I thank you for sorting this out amicably.
Regards
[The appellant]
The appellant gave the letter to the respondent or a settlement agent and said that he would not provide the purchase price for the property unless the respondent signed the letter. The respondent signed the letter.[19] Both the appellant and the respondent relied on the letter in relation to the claim and denial of the alleged loan agreement.[20]
[19] Primary reasons [66].
[20] See: statement of claim dated 18 August 2020 par 18.C BAB 37; amended defence dated 4 February 2021 par 6(b) BAB 47.
The respondent and the son became registered proprietors, as joint tenants, of the property. That remains the position.[21]
[21] Primary reasons [64].
The respondent admitted that she had not resided at the property since March 2013 and that the daughter had not resided at the property since February 2013.[22]
[22] Amended defence dated 4 February 2021 par 10 BAB 48.
The appellant has not been repaid any of the $477,492.64 for the purchase of the property.[23]
The statutory framework[24]
[23] Primary reasons [64].
[24] The decision in the District Court was delivered before the passage and coming into operation of the amendments to the FCA effected by the Family Court Amendment Act 2022 (WA). References to the FCA in the body of these reasons are to the version of the FCA as in force at the time that the primary proceedings were determined.
It is convenient to set out the relevant statutory framework before considering the primary judge's reasons for decision.
Section 50(1)(a) of the District Court of Western Australia Act 1969 (WA) provides, in relevant effect, that the District Court has jurisdiction to hear and determine all 'personal actions' where the amount or damages sought to be recovered is not more than the jurisdictional limit. The jurisdictional limit is $750,000.[25] Thus, absent something in some other statutory enactment excluding the District Court's jurisdiction, the District Court had jurisdiction to hear and determine the appellant's action.
[25] District Court of Western Australia Act s 6(1).
Among other things, the FCA provides for the Family Court to exercise non‑federal jurisdiction conferred on it by or under the FCA.[26] In terms of that non‑federal jurisdiction, s 36 of the FCA provides:
[26] FCA s 3(b).
(1)The Court [ie the Family Court] has throughout the State the non‑federal jurisdictions conferred on it by or under this or any other Act.
…
(4a)Without limiting subsection (1), the Court has jurisdiction under Part 5A to:
(a)make declarations and to revoke declarations that it has made;
(b)hear and decide all other matters under that Part,
and in particular the Court has jurisdiction to hear and decide the following:
(c)applications for orders with respect to property;
(d)applications for orders for the provision of maintenance.
…
(8)Non‑federal jurisdiction conferred on the Court is exclusive of any other court except as provided under section 39 or where an appeal lies to the Supreme Court. (emphasis added)
The exclusion created by s 39 of the FCA is not presently relevant. Nor is the other exception.
Section 36(8) of the FCA reflects a clear legislative choice. The non‑federal jurisdiction conferred on the Family Court, including the Family Court's jurisdiction under pt 5A of the FCA in relation to de facto relationships, is exclusive of any other court. The Family Court is the only court with authority to decide disputes of the kind within the non‑federal jurisdiction conferred by s 36 of the FCA. Accordingly, as will shortly be seen, provided various threshold requirements are met[27] the Family Court has exclusive jurisdiction to resolve disputes between de facto partners with respect to the distribution, after the breakdown of the de facto relationship, of the parties' property. All such disputes are to be heard and determined in the Family Court.
[27] See eg [30] - [32] below.
The general grant of jurisdiction conferred by s 50(1)(a) of the District Court of Western Australia Act is subject to the later, and more specific, grant of exclusive jurisdiction to the Family Court under s 36 of the FCA. Accordingly, the District Court lacks jurisdiction to hear and determine a claim otherwise within s 50(1)(a) as a personal claim within the District Court's jurisdictional limit if and to the extent that the claim falls within the exclusive jurisdiction of the Family Court under s 36 of the FCA. In the primary proceedings the respondent contended that the appellant's claims against her and the son were such claims given the de facto relationship between the appellant and the respondent.
Part 5A of the FCA is concerned with de facto relationships. The term 'de facto relationship' is defined in s 13A(1) of the Interpretation Act 1984 (WA):
A reference in a written law to a de facto relationship shall be construed as a reference to a relationship (other than a legal marriage) between 2 persons who live together in a marriage‑like relationship.
Section 13A(2) of the Interpretation Act prescribes certain factors as indicators of whether or not a de facto relationship exists between two persons. The factors are 'not essential'. The specified factors comprise:
(a)the length of the relationship between them;
(b)whether the 2 persons have resided together;
(c)the nature and extent of common residence;
(d)whether there is, or has been, a sexual relationship between them;
(e)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(f)the ownership, use and acquisition of their property (including property they own individually);
(g)the degree of mutual commitment by them to a shared life;
(h)whether they care for and support children;
(i)the reputation, and public aspects, of the relationship between them.
The term 'de facto partner' is a reference to a person who lives or has lived in a de facto relationship.[28] The de facto partner of a person is the person who lives or has lived in the de facto relationship with the first person.[29]
[28] Interpretation Act s 13A(4).
[29] Interpretation Act s 13A(5).
Section 205Z(1)(a) of the FCA provides that a court may make an order in relation to a de facto relationship 'only' if satisfied that 'there has been a de facto relationship between the partners for at least 2 years'.[30] Under s 205Z(2) of the FCA:
In deciding whether there has been a de facto relationship between the partners for at least 2 years, the court must consider whether there was any break in the continuity of the relationship and, if so, the length of the break and the extent of the breakdown in the relationship.
Section 205Z(3) provides that s 205Z(2) does not limit the matters the court may consider.
[30] Alternate pre-conditions for the making of an order in relation to a de facto relationship are provided for in s 205ZB(1)(b) and s 205ZB(1)(c). Those alternate pre‑conditions are not material to the disposition of the appeal.
The respondent acknowledged in the primary proceedings that her contention as to the exclusive jurisdiction of the Family Court was premised on her establishing the existence of a two‑year de facto relationship.[31] The respondent initially sought to advance a broader proposition on appeal. By ground 1 of a notice of contention the respondent contended that, on the proper construction of s 36 of the FCA, once a conclusion was made that a de facto relationship existed it was not necessary to prove that the de facto relationship existed for at least two years in order to find that the Family Court had exclusive jurisdiction. That contention was abandoned by counsel for the respondent, on the respondent's behalf, at the appeal hearing.[32]
[31] Primary reasons [10]. See also amended defence dated 4 February 2021 par 3(b) BAB 46.
[32] Appeal ts 59 - 60.
There are other conditions which operate in relation to the applicability of the provisions in div 2 of pt 5A of the FCA. For example, the division does not apply to certain matters covered by binding financial agreements or former financial agreements.[33] Also, s 205X of the FCA contains a requirement that one or both of the de facto partners have a relevant connection with the State of Western Australia. It was not suggested that either of these matters was relevant to the proper disposition of the appeal.
[33] FCA s 205W.
It is convenient, at this point, to refer more generally to the nature of the Family Court's exclusive jurisdiction to hear and decide matters under pt 5A of the FCA.
Part 5A of the FCA applies to de facto relationships.[34] By s 205V the right to certain civil proceedings is limited. A de facto partner who is, or was, eligible to apply for an order with respect to property under div 2 may not apply to the Supreme Court in its equitable jurisdiction for relief in respect of that property. 'Property' in s 205V (and elsewhere in relation to de facto partners) means property to which the partners or one of them is entitled whether in possession or reversion.[35]
[34] FCA s 205U(1).
[35] FCA s 205T (as in force at the time that the primary proceedings were determined). The same definition is now found in FCA s 5(1).
Division 2 of pt 5A is concerned with property adjustment orders and maintenance orders.
A de facto partner whose de facto relationship has ended may, by s 205ZB, apply for one or more of:
1.A declaration under s 205ZA(1) (see [38] and [39] below).
2.An order under one or more of s 205ZD (see [40] below), s 205ZE (see [41] below) or s 205ZG (see [42] below).
There is a restriction, in the nature of a time limitation, on the de facto partner's ability to apply pursuant to s 205ZB.[36] Ordinarily, the application must be made within an application period of two years after the end of the de facto relationship.[37] However, the Family Court may grant a de facto partner leave to apply after the end of the application period if satisfied that hardship would be caused to the de facto partner if leave were not granted.[38]
[36] Section 205ZB was amended by the Family Court Amendment Act 2022.
[37] FCA s 205ZB(1).
[38] FCA s 205ZB(2).
Section 205ZA of the FCA is concerned with declarations of interests in property. At the relevant time it provided:[39]
(1)In a proceeding between de facto partners with respect to existing title or rights in respect of property, a court may declare the title or rights, if any, that a partner has in respect of the property.
(2)Where a court makes a declaration under subsection (1), it may make consequential orders to give effect to the declaration, including orders as to sale or partition and interim or permanent orders as to possession.
(3)A declaration or order under this section is binding on the de facto partners but not on anyone else.
[39] Section 205ZB was amended by the Family Court Amendment Act 2022 to delete s 205ZA(3).
Section 205ZA(1) does not allow the Family Court to alter existing rights; a declaration under this section is an order determining the existing title or rights of parties in respect of property.[40]
[40] Mrowka v Format Finishing Pty Ltd [2009] WASCA 184; (2009) 240 FLR 1 [33].
At the relevant time s 205ZD[41] of the FCA was concerned with powers of the Family Court in maintenance proceedings. The Family Court could make such orders as it considered proper for the maintenance of a de facto partner.[42] In exercising jurisdiction under s 205ZD the court had to take into account only the matters referred to in s 205ZD(3).[43]
[41] Section 205ZD was amended by the Family Court Amendment Act 2022. See now FCA s 205ZCA.
[42] FCA s 205ZD(1).
[43] FCA s 205ZD(2).
Section 205ZE is concerned with urgent de facto partner maintenance payments.
Section 205ZG[44] is concerned with alteration of property interests. Relevantly, in proceedings with respect to the property of the de facto partners or either of them, the Family Court may make such order as it considers appropriate altering the interests of the partners in the property.[45] The court must not make such an order unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.[46] Section 205ZG should be understood in the context of s 205ZLF which has the effect, in substance, that in proceedings under s 205ZG the Family Court may in certain circumstances make an order binding a third party. Section 205ZLF is found in div 2A of pt 5A, the object of which is to allow the Family Court, in relation to the property of a de facto partner, to make an order under s 205ZG that is directed to or alters the rights, liabilities or property interests of a third person.[47]
[44] Section 205ZG was amended by the Family Court Amendment Act 2022.
[45] FCA s 205ZG(1).
[46] FCA s 205ZG(3).
[47] FCA s 205ZLA.
The primary decision
It is only necessary to deal with two parts of the primary judge's reasoning and findings. First is the primary judge's conclusion that he was satisfied that the parties' de facto relationship continued until 21 June 2011. That is the key factual finding in dispute on appeal so far as the primary judge concluded that, for the purpose of s 205Z(1)(a) of the FCA, there was a de facto relationship between partners of at least two years. Second is the primary judge's conclusion that, on the facts as found, the exclusive jurisdiction of the Family Court was engaged with the result that his Honour upheld the respondent's challenge to the District Court's jurisdiction to hear and determine the appellant's claims against the respondent and the son.
As to the factual issue, the appellant contended that his de facto relationship with the respondent was for less than two years.[48] In the appellant's statement of claim he pleaded that during 2009, but no later than 1 July 2009, the parties commenced living in a de facto relationship.[49] The appellant went on to plead that the parties separated in or about March 2011.[50] The appellant's evidence was that the relationship ended in March 2011.[51] By contrast the respondent pleaded that the de facto relationship commenced on 1 March 2009 and continued until the parties separated on a final basis in June 2011.[52] The respondent's evidence was to the effect that the parties' de facto relationship continued until 21 June 2011.[53]
[48] Reply dated 5 May 2021 par 10 BAB 51.
[49] Statement of claim dated 18 August 2020 par 11 BAB 36.
[50] Statement of claim dated 18 August 2020 par 12 BAB 36.
[51] ts 104, 122.
[52] Amended defence dated 4 February 2021 par 3(a) BAB 46.
[53] ts 240, 246, 249 - 251, 256, 284, 288 - 290.
The primary judge found, and it is unchallenged by either party on appeal, that the de facto relationship commenced by no later than 28 May 2009.[54] That was the point at which the respondent commenced to reside with the appellant (and the parties' daughter) at the appellant's property.[55] The primary judge also accepted the respondent's uncontradicted evidence that, from the time she recommenced living with the appellant, the nature of their relationship was as if they were 'married again'. That remained the position until at least 18 March 2011,[56] which was significant due to a verbal and physical dispute that occurred on that day.
[54] Primary reasons [18].
[55] Primary reasons [20] - [21], [26].
[56] Primary reasons [26].
On 18 March 2011, when the parties were co‑habiting at the appellant's property, there was a verbal dispute between the appellant and the respondent. A second adult son of the parties was present at the time. The second son intervened verbally. This led to a physical fight between the appellant and the second son.[57]
[57] Primary reasons [27] - [31].
Following the fight the appellant went to stay on the boat.[58]
[58] Primary reasons [32].
The appellant's evidence was that he then lived on the boat for the next two and a half months.[59] The respondent's evidence was that the appellant remained on the boat for two or three weeks before he returned to live with her at the appellant's property (whereupon the parties resumed a normal relationship).[60] The primary judge accepted that the appellant left the appellant's property on 18 March 2011.[61] The primary judge considered that the competing accounts as to the duration of the appellant's stay on the boat thereafter were 'irreconcilable'. It followed, according to the primary judge, that he was not satisfied that the appellant had resided continuously with the respondent at the appellant's property during April to June 2011.[62]
[59] ts 79, 122. See also ts 81.
[60] ts 246.
[61] Primary reasons [46].
[62] Primary reasons [34]. See also [44], [46].
However, the primary judge was satisfied (and made findings) that:
1.The appellant was frequently in attendance at the appellant's property in the period April to June 2011 and, at least occasionally, stayed overnight.[63]
2.On 15 April 2011 the appellant's then solicitor prepared and sent to the appellant, under cover of a letter of the same date, a draft proposed financial agreement between the appellant and the respondent pursuant to s 205ZO of the FCA.[64] The contents of these documents are instructive. They are considered in more detail at [98] ‑ [100] and [136] ‑ [151] below. For now it suffices to note that the primary judge found that the appellant supplied a copy of the proposed financial agreement to the respondent and encouraged her to sign it.[65]
3.On 25 April 2011 the appellant, the respondent and their daughter travelled to Singapore and enjoyed a four‑day holiday together.[66]
[63] Primary reasons [35].
[64] Primary reasons [17], [37].
[65] Primary reasons [37].
[66] Primary reasons [38].
None of the above findings are challenged by the appellant - although, by ground 6 (see [65.3] below), the appellant contends that the primary judge erred in the weight and significance his Honour accorded to these matters. Separately the primary judge found that, on 21 June 2011, the respondent expected the appellant to be at the appellant's property.[67] That finding is challenged by ground 4 (see [65.2] below). There is, however, no challenge to a closely associated finding that, as at 21 June 2011, the appellant expected the respondent to know where he, the appellant, was sleeping and to be concerned by his absence from that place.[68]
[67] Primary reasons [35].
[68] Primary reasons [35].
There were a series of emails between the parties on 21 June 2011. They concerned, among other things, advice the respondent had received not to sign the proposed financial agreement. Shortly after the email exchange the appellant attended the appellant's property and had a conversation with the respondent. The primary judge found, based on the evidence of both parties, that the appellant made it clear to the respondent that he (the appellant) required her (the respondent) to 'get out of his house' - a demand that was linked to the respondent's failure to sign the proposed financial agreement.[69]
[69] Primary reasons [39] - [41].
Thereafter, as we have recorded at [12] above, a number of things happened quickly.
The appellant's case at trial was that the de facto relationship ended on 18 March 2011; the respondent's case was that the de facto relationship survived the 18 March 2011 fight and did not end until the confrontation on 21 June 2011.[70] The primary judge said that his task was not to fix the date that the relationship ended. Rather, he had to determine whether the respondent had proved that a de facto relationship that commenced in May 2009 subsisted as at 21 June 2011.[71] The primary judge was satisfied that the parties' de facto relationship continued until 21 June 2011 notwithstanding that he was not satisfied that the appellant resided at the appellant's property after the 18 March 2011 fight.[72]
[70] Primary reasons [43].
[71] Primary reasons [44].
[72] Primary reasons [44].
The primary judge observed that, objectively, it would be surprising if the events of 18 March 2011 ended the de facto relationship.[73] His Honour explained that observation by acknowledging that although there was an argument between the parties:
1.The second son's intervention was not and could not have been predicted by the parties.
2.Any prior antipathy between the parties did not appear to be deep seated or longstanding.
3.The appellant did not suffer serious injury.
4.The respondent was solicitous of the appellant after the incident.
[73] Primary reasons [45].
The primary judge concluded:
Although [the appellant] left [the appellant's property] on 18 March 2011, and I am not satisfied that his time spent there after that date was continuous, there are a number of indicators that he had a commitment to a shared life with [the respondent] and that there was, during that period, a real prospect of imminent resumed co‑habitation. [The appellant] continued to spend time at [the appellant's property] including occasional time overnight. He enjoyed a holiday with [the respondent] and [the daughter] in April 2011. From the content of the [proposed financial agreement] and [the appellant's] efforts directed to [the respondent] executing the document, the only reasonable inference is that, between 15 April and 21 June 2011, [the appellant] wished to continue in a de facto relationship with [the respondent].
There is no evidence from which to infer any change in arrangements concerning the care of [the daughter] after 18 March 2011. She continued to reside at [the appellant's property] and spend time with each parent as each of them mutually desired. There is no evidence from which to infer any change in financial or property arrangements after 18 March 2011. [The appellant] continued to meet most, if not all, the expenses of the … household as well as his own expenses.
…
Overall, the facts suggest to me that the 'marriage‑like' relationship of [the appellant] and [the respondent] that commenced not later than 28 May 2009 and existed as at the time of the 18 March 2011 [f]ight, continued until 21 June 2011. It was a relationship with unique features. After April 2011, [the appellant] was single minded in his pursuit of formalising the [proposed financial agreement]. However, until the email exchange of 21 June 2011, there is no evidence of [the appellant's] views or conduct regarding the [proposed financial agreement] threatening the continuance of his de facto relationship with [the respondent]. For the purposes of s 205Z(l)(a) of the [FCA] it was a de facto relationship between partners of at least two years.[74]
[74] Primary reasons [46] - [48].
These findings are challenged by grounds 2, 6 and 8 (see [64], [65.3] and [65.5] below).
It is not necessary to address the primary judge's reasoning on the legal issue in the same level of detail as his Honour's factual finding as to the duration of the de facto relationship. Whether or not the District Court lacked jurisdiction is a question to which the correctness standard of appellate review applies. It suffices to say that the primary judge considered the relevant statutory provisions and discussed two authorities (these being Mrowka v Format Finishing Pty Ltd and Sewell v Wilson).[75] The primary judge considered that the jurisdiction issue required a comparison of the subject matter of the appellant's action (not limited to the claims made in the pleadings) with the subject matter that is the exclusive jurisdiction of the Family Court.[76]
[75] Sewell v Wilson [2010] WASCA 152; (2010) 242 FLR 402.
[76] Primary reasons [50], [81].
The primary judge characterised the appellant's claim as being one for damages for breach of the alleged loan agreement, or alternatively, for specific performance of the alleged loan agreement.[77] His Honour held that, properly characterised, the subject matter of the appellant's action involved matters under pt 5A of the FCA such as to invoke the exclusive jurisdiction of the Family Court.[78]
[77] Primary reasons [63].
[78] Primary reasons [75]. See also [81] - [82].
Three things were relied on in reaching this conclusion:
1.The primary judge characterised the opening sentence of the 8 August 2011 letter (see [16] above) as constituting a compromise by which the parties agreed not to invoke the jurisdiction of the Family Court to make a property adjustment order - it was thus a matter that arose under pt 5A of the FCA.[79]
2.A purpose of the alleged loan agreement was the discharge by the appellant of his spousal maintenance obligation (ie something that owed its existence to the FCA).[80]
3.The 8 August 2011 letter also purported to provide that it was a binding agreement. Neither party alleged that the document was a binding financial agreement. But, in the view of the primary judge, the inclusion of a term in the alleged loan agreement that purported to address the same subject matter as pt 5A of the FCA (on binding financial agreements) revealed that the subject matter of the action was under pt 5A of the FCA.[81]
[79] Primary reasons [76] - [78]. See also [81].
[80] Primary reasons [79]. See also [81].
[81] Primary reasons [80]. See also [81].
In addition, although no party made submissions to this effect, the primary judge also found that the District Court lacked jurisdiction because of federal jurisdiction invested in the Family Court. The primary judge referred to s 69B(1) of the Family Law Act 1975 (Cth) (FLA). His Honour concluded that the alleged loan agreement had a purpose of the maintenance of the daughter (the daughter being a 'child of the marriage' of the appellant and the respondent). As, in the primary judge's view, the subject matter of the action was consequent on the transfer of property for the maintenance of the daughter, the action could not be commenced in the District Court.[82]
[82] Primary reasons [8], [83].
This alternate finding of the primary judge is challenged by ground 9 (see [66] below).
The primary judge entered judgment for the respondent and the son. There was no order dismissing the action. Instead, conformably with s 65 of the District Court of Western Australia Act, the order was that the appellant's claim be struck out for want of jurisdiction.
Grounds of appeal
The appellant's first ground of appeal assumes that the primary judge was correct so far as his Honour was satisfied that there had been a de facto relationship between the appellant and the respondent for at least two years. By ground 1 the appellant says that even if, which is denied, there was such a relationship, the primary judge erred in law in concluding that the District Court had no jurisdiction to consider and determine the appellant's claims against the respondent and the son. According to the appellant:
The learned Judge should have held that nothing in the Family Court Act deprived the District Court of the jurisdiction conferred by the District Court Act to hear and determine the claims made in the SOC [ie the appellant's statement of claim] and [the respondent's] non‑jurisdictional defences thereto.[83]
[83] Amended grounds of appeal par 1 WAB 5 - 6.
Ground 2 asserts, in the alternative, that by reason of the matters raised in grounds 3 ‑ 4 and 6 ‑ 8,[84] the primary judge erred in fact and in law in finding that the appellant and the respondent had been in a de facto relationship from 28 May 2009 to 21 June 2011. The appellant asserted that the primary judge should have found that the relationship ended on 18 March 2011 or on the parties' return to Perth after the Singapore trip (ie in or about late April 2011).
[84] Reliance on a ground 5, as advanced in the appellant's case, was abandoned at the appeal hearing: Appeal ts 2 - 3.
Accordingly, ground 2 is dependent on the alleged errors contended for by the appellant in grounds 3 ‑ 4 and 6 ‑ 8. In that respect the appellant contends that:
1.The primary judge erred in fact in failing to find that the appellant's attendances between 18 March 2011 and 21 June 2011 at the appellant's property were consistent with the de facto relationship having ended on 18 March 2011 or on the parties' return to Perth after the Singapore trip (ground 3).
2.The primary judge erred in fact in finding that, on 21 June 2011, the respondent was expecting the appellant to return to the appellant's property - the appellant says that the primary judge should have found that, as at 21 June 2011, the appellant was spending nights sleeping on the boat and the respondent knew this was the case (ground 4).
3.In circumstances where the primary judge was not satisfied that the appellant resided at the appellant's property after 18 March 2011, the appellant says that the various matters found by the primary judge were not such that, as a matter of fact and law, the appellant and the respondent remained in a de facto relationship after 18 March 2011 or on the parties' return to Perth after the Singapore trip. The appellant contended that the primary judge erred in reaching a number of conclusions to the contrary ‑ in particular that the appellant and the respondent remained in a de facto relationship until 21 June 2011 (ground 6).
4.The primary judge erred in law by failing to take into account the relevant consideration that the appellant regarded his relationship with the respondent as at an end (ground 7).
5.The primary judge erred in law by taking into account the irrelevant consideration as to a real prospect of imminent resumed cohabitation between the appellant and the respondent (ground 8).
Finally, the appellant claimed that the primary judge erred in law in concluding that the District Court had no jurisdiction to entertain the appellant's claims against the respondent and the son by reason of the operation of pt VII of the FLA (the daughter being a child of the marriage of the appellant and the respondent) (ground 9).
Disposition: Grounds 2 ‑ 4 and 6 ‑ 8 ‑ the duration of the de facto relationship
The challenge to the factual finding that the de facto relationship subsisted until 21 June 2011
It is convenient to deal first with the appellant's challenge to the primary judge's factual finding as to the duration of the de facto relationship.
By grounds 2 ‑ 4 and 6 ‑ 8 the appellant contends, in substance, that the de facto relationship between the parties did not last two years (as required by s 205Z(1)(a) of the FCA) and the primary judge erred in fact in finding to the contrary. The appellant accepts, for the purpose of the appeal, that the relationship commenced by no later than 28 May 2009. However, contrary to the finding of the primary judge, the appellant says that it should have been found that the relationship ended on 18 March 2011. In the alternative, while it is accepted that this was not argued in the primary proceedings, the appellant submits that the primary judge should have found that the relationship was at an end by late April 2011 when the parties returned from the Singapore trip.
There was no material dispute as to the generally applicable legal principles in determining the existence of a de facto relationship. There have been many recent occasions for this court to consider and enunciate those principles. See in particular G v O [No 1];[85] G v O [No 2];[86] Britt v Office of the State Coroner;[87] and Keremestevski v McLeod.[88] Also important is the earlier decision of this court in H v P.[89]
[85] G v O [2018] WASCA 211; (2018) 53 WAR 393 (G v O [No 1]) [47] - [60].
[86] G v O [2022] WASCA 23 (G v O [No 2]) [115] - [122].
[87] Britt v Office of the State Coroner [2022] WASCA 75 [72] - [75].
[88] Keremestevski v McLeod [2024] WASCA 12 [35] - [38].
[89] H v P [2011] WASCA 78 [53] - [58].
Mitchell JA provided a summary of the general principles in Britt:
1.To determine whether a relationship is 'marriage‑like' requires an overall assessment of the facts and the relevant elements of the relationship.
2.The concept of a marriage‑like relationship involves a consensual union which is intended by the parties to endure. In the case of a marriage, the common intention to have an enduring relationship is manifested by a formal declaration or vow. In the case of a 'marriage‑like' relationship, the intention need not be, and will not usually be, formally declared, but may be otherwise manifested in the words and conduct of the parties to the relationship.
3.It is the common intention of the parties as to what their relationship is to be, and to involve, and as to their respective roles and responsibilities, that primarily determines the nature of that relationship. The parties' common intention may be expressed, or it may be implied from their conduct and communications in all their circumstances.
4.The text of s 13A indicates that there is a difference between persons living together and residing together. Section 13A recognises that it is possible for two persons to 'live together' without ever having 'resided together', so that the former concept is broader than the latter. The former concept would appear to encompass two people, who do not necessarily reside together, sharing their lives.[90]
[90] Britt v Office of the State Coroner [73] (quoted with approval in Keremestevski v McLeod [36]).
The assessment mentioned in the first principle recounted by Mitchell JA is an objective assessment of all of the facts and circumstances.[91]
[91] G v O [No 2] [122].
Some further observations should be made. First, a self‑serving subjective belief or intention held by one party as to whether their relationship is (or is not) 'marriage‑like' is not relevant; it is the parties' common intention that is critical.[92] (By contrast, admissions against interest may be informative in ascertaining the parties' common intention and whether the parties are carrying on a shared life which is intended to endure.) Second, where the parties' relationship includes elements that are generally characteristic of marriage (eg co‑habitation, financial interdependence and an exclusive intimate relationship) what is significant is the reason for the parties' adoption of those characteristics. Those relationship aspects will not in themselves justify a conclusion that the relationship should be characterised as 'marriage‑like' unless they reflect a common intention to form a consensual union which will endure.[93] Finally, the question whether, having regard to the non‑essential and non‑exhaustive factors in s 13A(2), parties are in a 'marriage‑like' relationship, is a value judgment involving elements of fact and degree; it is a question that draws on a judge's experience and familiarity with the nature of the subject matter.[94]
[92] G v O [No 2] [121] (see also [124], [126] - [127], [133] - [134]); Keremestevski v McLeod [37].
[93] G v O [No 2] [119].
[94] G v O [No 2] [102]; Keremestevski v McLeod [38], [58].
Appellate review of a finding that a de facto relationship exists (or does not exist) attracts the 'correctness standard'.[95] It would, however, be remiss not to recognise the natural limitations that apply to appellate review of a finding as to the existence and duration of a de facto relationship. Those natural limitations were discussed in the context of a case of the present kind in G v O [No 2].[96] The nature of the evaluative judgment involved in determining whether a de facto relationship exists (or does not exist) means that the demonstration of error for the purpose of appellate review may not be straightforward.[97]
[95] Keremestevski v McLeod [56], [58].
[96] G v O [No 2] [140].
[97] G v O [No 2] [103].
As was said in G v O [No 2]:
[T]he availability of a different view, indeed even perhaps the preference of the appeal court for a different view, may not be alone sufficient to demonstrate error. The conclusion of error will not necessarily be arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.[98]
[98] G v O [No 2] [103]. See also Britt v Office of the State Coroner [13].
The central issue on appeal is whether the primary judge erred in his determination of when the de facto relationship came to an end.
It has been said that not every short interruption in a longer de facto relationship will bring the relationship to an end. Depending on circumstances 'interspersed periods of separation may be characterised as merely bumps in the road, rather than the end of one road and the beginning of another'.[99] In H v P Murphy JA (Pullin & Buss JJA agreeing) stated a number of legal principles relevant to the identification of the end of a de facto relationship. First, a de facto relationship is inherently terminable at any time and continues to exist only so far as the indicia which gave the relationship its 'marriage‑like' character continue to exist.[100] Second, when a party to a de facto relationship determines that he or she no longer wishes to live in a 'marriage‑like' relationship and - importantly - 'conducts their life on that basis', the de facto relationship comes to an end.[101] Third, it is the party asserting the continuance of the de facto relationship that must positively prove the existence of its defining characteristics; the party asserting separation is not required to prove a negative (ie that the parties were not living together in a marriage‑like relationship).[102]
[99] Britt v Office of the State Coroner [75].
[100] H v P [56].
[101] H v P [57].
[102] H v P [58]. See also [68].
Murphy JA also observed:
[S]pending time apart is not necessarily fatal to the existence of a de facto relationship; common residence is only one of the factors in s 13A(2) Interpretation Act and, accordingly, it is open to a judge to conclude in appropriate circumstances that, despite physical separation, there are sufficient other factors present to indicate the existence of a de facto relationship … In the end, whether or not two parties are in a de facto relationship is a question of fact that will turn on an assessment of all of the elements of the relationship, and no one factor, such as whether the parties are physically separate at the relevant time, will be determinative.[103]
[103] H v P [73].
These legal principles must now be applied to the appellant's various grounds challenging the factual finding that the parties' de facto relationship subsisted until 21 June 2011.
In this respect the appellant's written submissions do not address the merits of ground 2 separately. Instead, consistently with the terms of the ground as drafted, the appellant's ground 2 relies on the contentions raised by grounds 3 ‑ 4 and 6 ‑ 8. On this basis it is convenient to consider those grounds and then return to consider ground 2 as the overarching ground by which the appellant contests the factual finding as to the duration of the de facto relationship.
Ground 3: Alleged failure to find attendances at appellant's property consistent with de facto relationship having ended
There is a common feature to each of grounds 3 ‑ 4 and 6 ‑ 8. None of these grounds are directed to the primary judge's overall assessment. Instead, each is concerned with some intermediate fact. In deliberating on each ground it should be appreciated that in evaluating whether there is a de facto relationship:
Each element of a relationship draws its colour and its significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error.[104]
[104] Lynam v Director General of Social Security (1983) 52 ALR 128, 131.
Accordingly, it should not be thought that success on any one or more of grounds 3 ‑ 4 or 6 ‑ 8 necessarily impugns the primary judge's ultimate finding that the parties' de facto relationship subsisted until 21 June 2011. Success on one of these challenges to a matter of intermediate fact is, instead, something that feeds into the consideration and determination of ground 2. To the extent that some error was made in determining (or failing to determine) one or more of the intermediate facts relevant to the parties' relationship it may (or may not) assist in establishing error in terms of the primary judge's overall assessment as is asserted by ground 2.
In that respect, if established, the error asserted by ground 3 is not such as might be thought to obviously invalidate the primary judge's overall assessment of the parties' relationship.
Ground 3 asserts, in effect, that the primary judge should have found that the appellant's attendances at the appellant's property between 18 March 2011 and 21 June 2011 were 'consistent with' the de facto relationship having ended on 18 March 2011 or late April 2011. The finding sought by ground 3 only goes so far. It is one thing to say that the attendances were consistent with the de facto relationship having ended. It is possible for the appellant's attendances to be consistent with the de facto relationship having ended and also to be consistent with there being an ongoing de facto relationship. Ground 3 does not take the next step by contending that the primary judge should have found that the appellant's post‑18 March 2011 attendances at the appellant's property were inconsistent with an ongoing de facto relationship between the appellant and the respondent over the relevant time.
In contending that the post‑18 March 2011 attendances were consistent with the de facto relationship having ended the appellant relied on a number of matters. These included: the nature of the attendances; the circumstance that the appellant owned the appellant's property and regarded it as his home; the appellant having attended the appellant's property to visit his sister (who was staying at the appellant's property);[105] the appellant having only a few clothes on the boat and his sister providing him with clothes while she was staying at the appellant's property;[106] the appellant's need to do maintenance at the appellant's property;[107] and the daughter living at the appellant's property.
[105] ts 170 - 171, 287.
[106] ts 79, 246.
[107] ts 122.
A number of other matters were also relied on. On examination these matters are either outside the ground as not going to the nature of the appellant's post‑18 March 2011 attendances at the appellant's property or are not established as a matter of fact. Relevantly:
1.The appellant said that the only evidence of the parties presenting as a couple was the Singapore trip. The appellant also relied on the evidence as to why the parties and their daughter went on the Singapore trip and his evidence that he was 'distant' from the respondent on the Singapore trip.[108] None of these matters go to the appellant's post‑18 March 2011 attendances at the appellant's property.
2.The appellant relied on his evidence that, on his return to Perth after the Singapore trip, he lived on the boat.[109] Again, except in an exclusionary sense, this does not go to the appellant's post‑18 March 2011 attendances at the appellant's property. In any case, there is no challenge to the primary judge's finding that, at least occasionally, the appellant stayed overnight at the appellant's property during the disputed period.
3.The appellant referred to his evidence that, from 18 March 2011, he regarded his relationship with the respondent as at an end. This matter is the subject of, and is properly considered under the rubric of, ground 7. But, in any case, it does not go to the appellant's post‑18 March 2011 attendances at the appellant's property.
[108] ts 81.
[109] ts 81.
The appellant also submitted that, on his evidence, he was not sleeping with the respondent. The appellant did not identify the evidence he relied on to support the proposition that the parties' sexual relationship ceased from 18 March 2011.[110] The highest that the evidence gets to is a denial by the appellant in cross‑examination that he was still having sex with the respondent as at 21 June 2011.[111] There is otherwise a gap in the appellant's evidence as to whether or not the parties were in a sexual relationship post‑18 March 2011. By contrast it was the respondent's evidence that the parties resumed a normal sexual relationship shortly after the 18 March 2011 fight.[112] The respondent gave evidence that the appellant came back to live at the appellant's property some two to three weeks after the 18 March 2011 incident.[113]
[110] Appeal ts 49 - 50.
[111] ts 124.
[112] ts 246, 289.
[113] ts 246.
The appellant made comprehensive written submissions on the applicable principles where there is a challenge to a factual finding in an appeal by way of rehearing.[114] It is sufficient, for present purposes, to refer to and adopt without reproduction what was said by Quinlan CJ & Vaughan JA (Pritchard JA relevantly agreeing) in Wilson v Arwon Finance Pty Ltd.[115] It should, however, be emphasised that the circumstance that an appeal is by way of rehearing does not detract from the need to identify error on the part of the primary judge where the challenge is to a finding of fact. It is, for example, insufficient to contend that a primary judge should have accepted certain evidence. An appellant must demonstrate that the primary judge was in error in not having done so.
[114] Appellant's submissions pars 57 - 67 WAB 18 - 19.
[115] Wilson v Arwon Finance Pty Ltd [2020] WASCA 137 [193] - [194].
In support of ground 3 the appellant does not go as far as to contend that the primary judge should have accepted his evidence denying a sexual relationship as at 21 June 2011. The contention in support of ground 3 is that it suffices that the appellant gave evidence to that effect. On the authorities this alone is insufficient to establish appellable error. The appellant must demonstrate error in the primary judge not accepting his evidence.
We are not satisfied that the primary judge erred in not accepting the appellant's evidence that he was not sleeping with the respondent as at 21 June 2011. First, as we have mentioned, the respondent gave evidence to the contrary. In this respect there was a contest of credibility and reliability as between the appellant and the respondent. In assessing whether the appellant's evidence should be accepted over that of the respondent the primary judge had a considerable advantage over this court. His Honour saw and heard the appellant and the respondent give evidence. Having done so the primary judge did not prefer the appellant's evidence on this point over the respondent's evidence. Second, the appellant's evidence is prima facie inconsistent with the way in which he corresponded with the respondent as at 21 June 2011. In this respect it is necessary to refer to an email that the appellant sent the respondent on 21 June 2011.
Earlier aspects of the parties' email exchange of 21 June 2011 will be referred to later in these reasons (see [103] ‑ [104] below). For present purposes the relevant part of the email exchange is a message sent by the appellant to the respondent at 1.33 pm on 21 June 2011:
hay sexey im coming around to have some sex get ready 15min[116]
[116] Ex D3.46 GAB 68. The quotation reproduces spelling errors and grammatical infelicities in the original email.
The evidence was that this was intended and taken in a jocular fashion; it was the appellant's attempt at humour.[117] That much may be accepted. However, as a matter of objective likelihood, it is inherently unlikely that such a sexual innuendo would be made in a joking fashion where the parties had been married, and then subsequently had been in a de facto relationship, unless they continued to be in a sexual relationship at the time of the email. The statement, even if intended as a joke, could be seen as highly offensive - and perhaps even to expose the appellant to adverse legal consequences - if the parties were no longer in a sexual relationship. This is not to say that we would infer from the bare fact of the statement that the parties continued to be in a sexual relationship as at 21 June 2011. The question we are presently concerned with is whether the primary judge erred in not accepting the appellant's evidence that he was not sleeping with the respondent as at 21 June 2011. It is enough to conclude, as we do, that the contents of the appellant's contemporaneous email belie the acceptance of the appellant's evidence in this respect.
[117] ts 124, 289
The appellant did not seek to argue that, in not accepting his evidence that the parties were not in a sexual relationship, the primary judge was in error having regard to incontrovertible facts or uncontested testimony, because the absence of a finding was glaringly improbable or contrary to compelling inferences or because the primary judge failed to use, or palpably misused, his Honour's advantage as the trial judge. The two matters we have mentioned mean that any such argument would have been doomed to fail. It is, however, necessary that this state of satisfaction be reached if this court is to conclude that it has been demonstrated that the primary judge was wrong not to accept the appellant's evidence denying a sexual relationship as at 21 June 2011.
Accordingly, as with the matters that are outside the scope of ground 3, the appellant's submission that, on his evidence, he was not sleeping with the respondent, can be put aside. This leaves the matters referred to at [84] above.
The primary judge held that the appellant was frequently in attendance at the appellant's property in the period April to June 2011 and, at least occasionally, stayed overnight.[118] In this respect his Honour did not accept the respondent's evidence that the appellant resumed living at the appellant's property in the period April to June 2011.[119] In so doing the primary judge did not refer to evidence of the appellant's sister, that the appellant could have stayed on the boat for one or two weeks.[120] Nor did his Honour mention the sister's evidence that she was 'pretty sure' that the appellant had moved back to the appellant's property by 7 June 2011.[121]
[118] Primary reasons [35].
[119] Primary reasons [34].
[120] ts 170.
[121] ts 170.
The generic reference to the nature of the appellant's attendances at the appellant's property takes the matter no further than the other matters relied on (those matters in effect particularising the suggested nature of the attendances).
We accept that there is a basis in the evidence for the other matters relied on by the appellant. We are, however, not satisfied on a review of the evidence as a whole that these matters demonstrate that the primary judge was in error in not finding that the appellant's post‑18 March 2011 attendances at the appellant's property were consistent with the de facto relationship having ended on 18 March 2011 or in late April 2011. Each of these matters provide a reason for the appellant to be attending the appellant's property post‑18 March 2011. But, individually and collectively, the existence of such reasons for the appellant to be attending the appellant's property does not establish that they were the sole or predominant reasons for the appellant to be attending the appellant's property post‑18 March 2011. Nor, in terms of ground 3, do they demonstrate that the primary judge was wrong not to find that that the appellant's attendances at the appellant's property between 18 March 2011 and 21 June 2011 were consistent with the de facto relationship having ended on 18 March 2011 or late April 2011.
For example, the remaining matters relied on in support of ground 3 do not accommodate or explain the primary judge's unchallenged finding that on occasions the appellant stayed overnight at the appellant's property during the period of April to June 2011. Nor do those matters accommodate or explain the content and tone of the appellant's 21 June 2011 email. Proper regard should also be had to: the unchallenged findings of the primary judge as recorded at [54] above; the unchallenged finding that there was no basis to infer any post‑18 March 2011 change in the parties' property or financial arrangements (the appellant meeting most, if not all, of the household expenses); the finding that there was a real prospect of imminent resumed cohabitation (ground 6's and ground 8's challenge to this finding not succeeding - see [116] ‑ [117] and [125] ‑ [132] below); and, in particular, to the content of the proposed financial agreement.
In the latter respect, while it will be necessary to say more about the proposed financial agreement in the context of ground 6 (see [136] ‑ [151] below), it is material that recital F to that proposed agreement stated:
The parties reconciled and have been living in a de facto marital relationship since 1 July 2009.[122]
[122] Ex P1.97-115 GAB 50.
In cross‑examination the appellant confirmed the truth of the recital.[123]
[123] ts 118.
On the evidence the proposed financial agreement was prepared on or about 15 April 2011.[124] However, it was common ground that the appellant continued with his efforts to have the respondent execute the proposed financial agreement up to and including about 20 to 21 June 2011.[125] The recital thus provides evidence of the state of the parties' relationship throughout the period of the appellant's post‑18 March 2011 attendances at the appellant's property. In our view the proposed financial agreement provides cogent and persuasive contemporaneous documentary evidence as to the nature of the appellant's attendances at the appellant's property post‑18 March 2011. There is an available inference, one we would draw based on the proposed financial agreement and the appellant's conduct in seeking the respondent's execution of the agreement, that the appellant's post‑18 March 2011 attendances at the appellant's property were consistent with an ongoing de facto relationship between the appellant and the respondent.
[124] Ex P1.53-67 GAB 34.
[125] ts 83 - 84, 123 - 125, 246 - 250; Ex D3.46 GAB 68. See also primary reasons [37], [39].
Having put aside the appellant's evidence that he was not sleeping with the respondent, the alleged factual error is one of failure to draw an inference. While we acknowledge that, in this respect, this court is in as good a position as the primary judge to decide whether it should be concluded that the appellant's post‑18 March 2011 attendances at the appellant's property were consistent with the de facto relationship having ended on 18 March 2011 or late April 2011, we are not satisfied that the primary judge was wrong in failing to reach that conclusion. We would not draw the inference sought by ground 3 having regard and giving proper weight to the countervailing matters to which we have referred in these reasons.
Ground 3 fails. Separately, even if, contrary to our view, ground 3 had substance, we are not satisfied that any error in terms of ground 3 would have been material. No case was advanced on appeal to the effect that the primary judge should have found that the appellant's post‑18 March 2011 attendances at the appellant's property were inconsistent with an ongoing de facto relationship between the appellant and the respondent from 18 March 2011 or late April 2011.
Ground 4: Alleged error in finding the respondent was expecting the appellant to return to the appellant's property
Ground 4 initially alleges error in the primary judge's finding that, on 21 June 2011, the respondent was expecting the appellant to return to the appellant's property. The ground erroneously refers to 21 June 2011 when the substance of the finding was that the appellant was expected at the appellant's property overnight on 20 ‑ 21 June 2011. The finding is based on the terms of the appellant's 21 June 2011 email and the respondent's evidence in relation to that email.
The email, sent by the appellant to the respondent at 10.32 am on 21 June 2011, reads:
morning nice to see that you worry about me and wounder [sic] were [sic] I slept last night …[126]
[126] Ex D3.46 GAB 68.
The respondent's evidence was to the effect that the day prior to the email (ie on 20 June 2011) she told the appellant that a lawyer had informed her that she (the lawyer) would not sign the proposed financial agreement. The lawyer said that the agreement was not in the respondent's best interest. The respondent said that as a result of this conversation the appellant got angry and drove off. The appellant did not return to the appellant's property that night.[127]
[127] ts 249 - 251.
On the night of 20 June 2011 the respondent was living at the appellant's property. It is plain from the terms of the 21 June 2011 email, and the primary judge found in a finding that is unchallenged on appeal, that as at this time the appellant expected the respondent to know where he was sleeping and be concerned by his absence from that place. In circumstances where the respondent was living at the appellant's property, if the respondent was to be concerned about the appellant's absence from the place where he was expected to be sleeping, that must have been because the appellant was expected to be sleeping at the appellant's property. The comment in the appellant's email would be nonsensical if, as at 20 ‑ 21 June 2011, the appellant thought the respondent would have expected him to be sleeping on the boat. The respondent would have had no reason to worry about the appellant and wonder where he was sleeping if he was expected to be sleeping on the boat. The respondent would not have known that the appellant did not sleep on the boat because the respondent was sleeping at the appellant's property. It is only if the appellant was absent from the appellant's property ‑ because that is where the respondent would have expected the appellant to be sleeping ‑ that there was cause for the respondent to worry about the appellant and wonder where he slept the previous night.
There is no error in the primary judge's finding that the appellant was expected at the appellant's property overnight on 20 ‑ 21 June 2011.
The other aspect of ground 4 is the appellant's contention that the primary judge should have found that, as at 21 June 2011, he (the appellant) was sleeping on the boat and the respondent knew that was the case. We are not satisfied that the primary judge was wrong in failing to so find. The appellant's own email of 21 June 2011 is inconsistent with that proposition. When the sarcastic tone of the email is properly appreciated it is clear that the appellant is criticising the respondent for not being concerned about where the appellant had slept the previous night - the respondent knowing only that the appellant had not slept at the appellant's property as would otherwise have been expected. And, as has been seen, the appellant's sister's evidence was to the effect that the appellant had returned to live at the appellant's property by at least 7 June 2011. Given those matters we are not satisfied that the appellant has positively demonstrated error on the part of the primary judge in terms of this second aspect of ground 4.
Ground 4 fails.
Ground 6: Alleged error in finding that the parties remained in a de facto relationship based on matters found in [35], [37] & [38] of primary judge's reasons
Ground 6 is framed awkwardly. There are seemingly two separate parts to ground 6. First, by its initial sentence the appellant claims that the matters found at primary reasons [35], [37] & [38] were not such that, as a matter of fact and law, the parties remained in a de facto relationship after 18 March 2011 or alternatively after the parties' return from the Singapore trip in late April 2011. Second, by the following portions of ground 6 the appellant claims that the primary judge thereby erred in reaching a number of conclusions - these including that the parties remained in a de facto relationship until 21 June 2011.
Accordingly, in part ground 6 challenges the primary judge's conclusion that the parties remained in a de facto relationship until 21 June 2011 (but, in this respect, focusing on the background facts as found in three paragraphs of the primary judge's reasons).
This aspect of ground 6 overlaps with ground 2. Ground 2, it will be recalled, is an umbrella ground that relies on grounds 3 ‑ 4 and 6 ‑ 8 in challenging the primary judge's finding that the appellant and the respondent remained in a de facto relationship until 21 June 2011. It is convenient, in our view, to consider this overlapping aspect of ground 6 in the context of ground 2. This is so for two reasons. First, whether there is an error in the primary judge's finding as to the duration of the de facto relationship should not be assessed by reference merely to three paragraphs of the primary judge's reasons. To determine whether a relationship is 'marriage‑like' requires an overall assessment of the facts and the relevant elements of the relationship. Second, so far as the appellant has alleged numerous errors in the primary judge's fact finding it may be that, to the extent that the appellant is successful on one or more of grounds 3 ‑ 4 and 6 ‑ 8, there is an impact on the ultimate conclusion that the parties remained in a de facto relationship until 21 June 2011.
There are two other aspects to ground 6. The appellant challenges the primary judge's conclusions that:
1.There were a number of indicators that the appellant had a commitment to a shared life with the respondent.[128]
2.There was, during the period 18 March 2011 to 21 June 2011, a real prospect of imminent resumed co‑habitation.[129]
[128] Primary reasons [46].
[129] Primary reasons [46].
The appellant's written and oral submissions did not expressly address either of these challenges. The appellant's PD 7.4 schedule referred to what had been put in support of ground 3. That is self‑evidently insufficient to make out ground 6 ‑ ground 3 is concerned with a different challenge to the primary judge's fact finding. Otherwise the PD 7.4 schedule simply said that even after 21 June 2011 the proposed financial agreement was still 'in play' and pointed to emails between 22 and 27 June 2011 which demonstrated that the respondent sought legal advice on the proposed financial agreement post‑21 June 2011. That, in our view, goes nowhere in making out these aspects of ground 6. The challenged findings are concerned with the nature of the parties' relationship between 18 March 2011 and 21 June 2011.
The unchallenged findings of the primary judge are such that the appellant has not demonstrated that his Honour was in error to conclude that there were a number of indicators that the appellant had a commitment to a shared life with the respondent. It is only necessary to mention a few: the family holiday in Singapore for four days at the end of April 2011; the circumstance that the appellant was frequently in attendance at the appellant's property and occasionally stayed overnight; the unchanged financial and property arrangements - in continuing to meet the respondent's household expenses the appellant acted no differently from what had been the position pre‑18 March 2011. To these should be added the proposed financial agreement and the appellant's continuing conduct in seeking that the respondent sign the agreement. For reasons to be more fully explained in dealing with ground 2 and the remaining aspects of ground 6, we would, in this respect, uphold the primary judge's finding that based on the content of the proposed financial agreement and the appellant's efforts directed to having the respondent sign the agreement the inference to be drawn is that the appellant wished to continue in a de facto relationship with the respondent.
These matters, in particular the inference to be drawn from the proposed financial agreement and the appellant's conduct in relation to the agreement, suffice to dispel any suggestion of error in the primary judge's further finding that there was a real prospect of imminent resumed co‑habitation during the period 18 March 2011 to 21 June 2011.
The aspects of ground 6 identified at [113] above fail. The remainder of ground 6 will be addressed when considering ground 2.
Ground 7: Alleged failure to take into account the relevant consideration that the appellant regarded the relationship as at an end
Ground 7 alleges an error of law on the basis that the primary judge failed to take into account the relevant consideration that the appellant regarded his relationship with the respondent as at an end. The appellant certainly gave evidence at trial as to when, in his view, the relationship came to an end. He said that the relationship ended in March 2011. However, contrary to the tenor of ground 7, reading the relevant passages of the evidence the appellant did not say that this was his then view at the material time.[130]
[130] ts 104, 122.
There are, in any event, two reasons why the ground is without merit.
First, while the appellant's evidence was that the relationship ended in March 2011, that could only provide a proper basis for ground 7 if the primary judge should have accepted that this was genuinely the appellant's subjective belief at the time. The appellant advanced no contention in this respect. We are not satisfied that the primary judge was in error in failing to so find. The appellant did not give evidence as to his state of mind at the relevant time. And, in any case, the terms of the proposed financial agreement and the appellant's continued efforts to secure the respondent's execution of the agreement up to and including 21 June 2011 are inconsistent with such a subjective belief.
Second, even if the appellant did consider the relationship to be at an end at the material time, that alone is not a relevant consideration. As was stated by this court in G v O [No 2]:
It is the parties' common intention which is critical. A subjective belief or intention held by one party as to whether their relationship is 'marriage‑like', is not relevant.[131] (original emphasis)
[131] G v O [No 2] [121]. See also Keremestevski v McLeod [37].
This explains Murphy JA's observation in H v P that a de facto relationship comes to an end when a party to a de facto relationship determines that he or she no longer wishes to live in a marriage‑like relationship and 'conducts their life on that basis'.[132] More is required than the party's unexpressed subjective belief or intention - he or she must also conduct their life on that basis. Mahoney JA makes a similar observation in Hibberson v George:
[W]here one party determines not to 'live together' with the other and in that sense keeps apart, the relationship ceases, even though it be merely, as it was suggested in the present case, to enable the one party or the other to decide whether it should continue.[133] (emphasis added)
[132] H v P [57].
[133] Hibberson v George (1989) 12 Fam LR 725, 740.
The primary judge gave close consideration to what the parties did and how they interacted post‑18 March 2011. In this respect the appellant's evidence as to when, in his view, the relationship ended was only relevant so far as it confirmed the case that the appellant was advancing at trial. The primary judge was under no misapprehension in this regard. His Honour recorded, correctly, that it was the appellant's case that the de facto relationship ended on 18 March 2011.[134] We are not satisfied, in this respect, that the primary judge erred in law by failing to take into account that the appellant regarded his relationship with the respondent at an end as and from 18 March 2011. To the contrary the primary judge properly had regard to that contention as part of the appellant's case in considering and characterising the facts and the relevant elements of the relationship.
[134] Primary reasons [43].
Ground 7 fails.
Ground 8: Alleged error in taking into account alleged irrelevant consideration, namely, that there was a real prospect of imminent resumed co‑habitation
The primary judge found that there was a real prospect of imminent resumed co‑habitation.[135] The appellant says this is irrelevant as a matter of law. The appellant says that, when X determines not to live together with Y, the relationship between X and Y ceases ‑ at least in the absence of any overt act or indication by X to Y that X was staying away only temporarily and intended to return. The respondent says that in the circumstances of this case the prospect of imminent resumption of co‑habitation is not irrelevant.
[135] Primary reasons [46].
In Fairbairn v Radecki the High Court observed:
Consistently with the reality that human relationships are infinitely mutable, in determining whether a de facto relationship exists a court is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate.[136]
[136] Fairbairn v Radecki [2022] HCA 18; (2022) 96 ALJR 529 [28].
This statement was made in the context of the definition of 'de facto relationship' in s 4AA of the FLA and reflects the terms of s 4AA(4) of that Act. It is, in our view, equally applicable to the definition of 'de facto relationship' in s 13A of the Interpretation Act even though Western Australia's Act contains no express analogue to s 4AA(4) of the FLA.
One of the indicators of whether a de facto relationship exists is whether the two persons 'have resided together' (emphasis added). On an ordinary and natural reading the reference to 'have resided' includes both the situation where, as at the relevant time, a common residence is ongoing and the situation where, as at the relevant time, a common residence has ceased. In that respect there is, in our opinion, no hard and fast rule of the sort suggested by the appellant. Continued physical cohabitation at a single common residence is not a necessary feature of an ongoing de facto relationship.[137]
[137] Fairbairn v Radecki [33], [35].
The factors in s 13A(2) of the Interpretation Act are only non‑essential indicators of whether a de facto relationship exists. In any particular case, having regard to all the facts and circumstances of the case, some factors may be relevant and have at least some weight and some may be irrelevant or have little or no weight. But, importantly, the factors as listed in s 13A(2) are not exhaustive. A conclusion that a de facto relationship exists may be supported by factors that are not listed in s 13A(2). If, in one case, the circumstance that two persons have resided together may be relevant, then so too, in another case, it may be relevant that two persons previously resided together and at the material time there was a real prospect of imminent resumed co‑habitation. That is all the more so where, although the parties have been residing at different locations for a period having previously cohabited, there is evidence consistent with the parties continuing to have a shared life in the form of a consensual union which is intended to endure.
As a matter of common human experience the real prospect of imminent resumed co‑habitation tends to support a conclusion that de facto partners who, having cohabited, are residing apart following a relationship issue, are experiencing a 'bump in the road' rather than the 'end of the road'. That is all the more so in the present case where the appellant had not sought out and obtained permanent alternative residential accommodation.
In conducting an overall assessment of the facts and the relevant elements of the parties' relationship the primary judge was entitled to take into account that there was, during the relevant period, a real prospect of imminent resumed co‑habitation. This, if nothing else, informed the significance of the circumstance that the primary judge was not satisfied that the appellant resided at the appellant's property after the 18 March 2011 fight. So too it informed the significance of the finding that the appellant continued to spend time at the appellant's property including the occasional time overnight.
Ground 8 fails.
Ground 2 (and the remainder of ground 6): Alleged error in concluding that the parties remained in a de facto relationship until 21 June 2011
None of the appellant's challenges to the primary judge's intermediate fact finding have succeeded. Accordingly, ground 2 and the remaining aspect of ground 6 fall to be considered by reference to the facts as found by the primary judge. It was, in this respect, the appellant's case that the primary judge was in error in finding that the de facto relationship continued until 21 June 2011. The appellant claimed that the primary judge should have found that the de facto relationship ended on 18 March 2011 or alternatively in late April 2011 after the parties returned from the Singapore trip.
The appellant relied heavily on the fact of the 18 March 2011 fight and the circumstance that the primary judge was not satisfied that the appellant resided continuously with the respondent at the appellant's property thereafter.[138]
[138] Appeal ts 45.
Against that, however, are the following matters:
1.Previously the parties had been married, separated and divorced. They then resumed an intimate relationship. A de facto relationship commenced from at least 28 May 2009. From that time the respondent was residing with the appellant at the appellant's property with the daughter.
2.So far as the appellant and the respondent were concerned the events of 18 March 2011 involved a verbal altercation. The physical aspect of the fight was between the appellant and the parties' second son. The primary judge found, and it is unchallenged on appeal, that any prior antipathy between the appellant and the respondent did not appear to be deep seated or longstanding. The respondent cared for the appellant after the incident and arranged for his injuries to be examined.
3.Post‑18 March 2011 the appellant was frequently in attendance at the appellant's property and, at least occasionally, stayed overnight. The respondent resided at the appellant's property with the parties' daughter.
4.The parties went on a four‑day holiday to Singapore with the daughter in late April 2011.
5.There was no change in the parties' financial or property arrangements after 18 March 2011 ‑ the appellant continued to meet most, if not all, of the expenses of the household as well as his own expenses.
6.There was no post‑18 March 2011 change in the arrangements for the care of the parties' daughter.
7.There was, throughout 18 March 2011 to 21 June 2011, a real prospect of imminent resumed co‑habitation.
8.The 21 June 2011 emails from the appellant to the respondent:
(a)demonstrate that the appellant expected the respondent to know where he was sleeping on 20 June 2011 (that being the appellant's property) and to be concerned by his absence from that place; and
(b)are consistent with an ongoing sexual relationship between the appellant and the respondent.
More must now be said about the proposed financial agreement. It is, in our view, particularly cogent and persuasive contemporaneous documentary evidence. So too is the appellant's then solicitor's letter dated 15 April 2011 by which the appellant was provided with the proposed financial agreement.
Critically, the proposed financial agreement was expressed as being an agreement under s 205ZO of the FCA.
The FCA provides for different types of financial agreements. Section 205ZN provides for financial agreement before beginning a de facto relationship. Section 205ZP provides for financial agreements after a de facto relationship ends. The proposed financial agreement, being made under s 205ZO, was the kind of agreement between de facto partners made during a de facto relationship.
The terms of the proposed financial agreement were consistent with it being an agreement between parties who were living in a de facto relationship. In this respect the recitals are revealing. Had the proposed financial agreement been executed the recitals would have been incorporated into the agreement and the parties would have confirmed the matters set out therein (cl 4).[139] In evidence the appellant said that, had he come across any mistakes in the agreement, he would have told his solicitor.[140] The appellant also said that there were numerous communications between him and his solicitor before coming up with the agreement.[141] In the circumstances we consider the proposed financial agreement to be an accurate reflection of the appellant's then view of the state of the parties' relationship.
[139] Ex P1.97-115 GAB 52.
[140] ts 103.
[141] ts 101.
Recital F recorded, as has been seen, that the parties were living in a de facto marital relationship.[142] Recital L contemplated that, as at the date of the agreement, the daughter and the second son would be living 'with the parties'[143] - it thus contemplated that the appellant and the respondent would be living together. Recital N provided:
In the hope of leading a tranquil life together and to avoid any disputes between them relating to property and financial matters generally and to avoid unpleasantness and dispute should the relationship, despite their best intentions, not continue in a harmonious manner, the parties wish to set down in writing their agreement as to how their financial relationship with each other should be regulated.[144] (emphasis added)
[142] Ex P1.97-115 GAB 50.
[143] Ex P1.97-115 GAB 51.
[144] Ex P1.97-115 GAB 51.
Accordingly, the proposed financial agreement contemplated the parties living a 'life together' ‑ but, should the relationship not continue in a 'harmonious manner', the agreement made provision for the regulation of their financial relationship to avoid dispute at that time. The agreement was premised on there being a current de facto relationship, with the parties living a tranquil and harmonious life together, but provided for what was to occur if at some future point that ceased to be the position.
Recital T contemplated the agreement specifying how the parties' assets and liabilities were to be dealt with 'if they separate' (emphasis added).[145] In other words any separation was a possible future event. Consistent with this being the state of affairs contemplated by the proposed financial agreement it made provision for when separation was deemed to occur (cl 5, sch 4).[146] That was entirely unnecessary if, as was the appellant's case at trial and on appeal, the parties' de facto relationship ended on 18 March 2011. Such provision was only appropriate if the parties remained in a de facto relationship (it plainly not being a case for a financial agreement under s 205ZN of the FCA).
[145] Ex P1.97-115 GAB 52.
[146] Ex P1.97-115 GAB 53, 66.
The appellant's solicitor's letter is equally destructive of the appellant's insistence that the de facto relationship ended on 18 March 2011.
The solicitor confirmed that the appellant had instructed him that the facts were as set out in the recitals to the proposed financial agreement.[147] There was, in this respect, no evidence at trial on the part of the appellant to the effect that his solicitor was mistaken in any way.[148] Otherwise the letter is plainly written on the basis that the parties were in a continuing de facto relationship (which is to be expected given that the solicitor drafted the proposed financial agreement as one under s 205ZO of the FCA rather than an agreement where the de facto relationship had ended). It would be tedious to reproduce the many references which support this understanding of the letter. We will, however, refer to some of the significant references.
[147] Ex P1.53-67 GAB 34.
[148] Appeal ts 46 - 47.
On the second page of the solicitor's letter he says that the advice following is 'based upon the facts as presented to me by you [ie the appellant]'.[149] The solicitor then states:
You are currently in a de facto marital relationship with [the respondent].[150]
[149] Ex P1.53-67 GAB 35.
[150] Ex P1.53-67 GAB 35.
At pages 8 ‑ 10 of his letter the solicitor gives advice on the basis of what might occur in the future event of separation. There is consideration of what might occur if the parties 'separated after a short period of cohabitation'.[151] There is consideration of the position where no agreement was in place and the parties 'enjoyed a long relationship'[152] or the agreement was binding and the parties 'separated after a long relationship'.[153] Also, conformably with recital T to the proposed financial agreement, the solicitor opines on the possible position 'if you and [the respondent] separated' (emphasis added).[154]
[151] Ex P1.53-67 GAB 41.
[152] Ex P1.53-67 GAB 42.
[153] Ex P1.53-67 GAB 42.
[154] Ex P1.53-67 GAB 43.
The solicitor also advises of 'clear risk' in the event that 'you [ie the appellant] enjoy a long relationship and separate in the future' (emphasis added).[155]
[155] Ex P1.53-67 GAB 44.
The appellant submits that no significance should be placed on the proposed financial agreement or the appellant's solicitor's letter dated 15 April 2011.[156] In that respect counsel for the appellant says there was no finding as to when the solicitor's instructions were given.[157] As the solicitor's letter is dated 15 April 2011 it may comfortably be inferred that the appellant instructed his solicitor shortly before 15 April 2011. In any case, as we have already referred to, the significance of the proposed financial agreement is not the timing of the appellant's instructions but the appellant's continuing efforts - over mid‑April 2011 to 21 June 2011 ‑ to encourage the respondent to sign the proposed financial agreement.
[156] Appellant's submissions par 101(13) WAB 27.
[157] Appeal ts 46.
Counsel for the appellant also relied on the circumstance that the proposed financial agreement was still being considered by the parties post‑21 June 2011.[158] That attempt to diminish the significance of the proposed financial agreement lacks any force; it does not address the main point that arises from the proposed financial agreement. No‑one contended that the parties' de facto relationship subsisted once the appellant told the respondent to 'get out of his house' (a demand that was in any event linked to the respondent's failure to sign the proposed financial agreement).[159] In any case, as we have mentioned, the evidentiary significance of the proposed financial agreement concerns the steps taken by the appellant in relation to the agreement between mid‑April 2011 and 21 June 2011.
[158] Appeal ts 44 - 46.
[159] Primary reasons [40].
As a fall‑back, the appellant submits that the proposed financial agreement and the appellant's solicitor's letter dated 15 April 2011 are consistent with a late April 2011 end date of the de facto relationship.[160] We disagree. The submission overlooks the appellant's continuing conduct up to and including 21 June 2011 in encouraging the respondent to sign the agreement. It also defies logic ‑ there being no post‑late April 2011 event or outward manifestation on the part of the appellant that was consistent with the de facto relationship being at an end.
[160] Appellant's submissions par 101(13) WAB 27.
The primary judge found that the appellant encouraged the respondent to sign the proposed financial agreement.[161] That finding is unchallenged. The encouragement continued up to 21 June 2011.[162] On its terms the proposed financial agreement is consistent with - and only consistent with ‑ there being a subsisting de facto relationship. Had the de facto relationship been at an end any proposed financial agreement would have been decidedly different in form and substance. In the circumstances we, like the primary judge, would draw the inference that between 15 April 2011 and 21 June 2011 the appellant wished to continue in his de facto relationship with the respondent. There was no other plausible reason for the appellant to be encouraging the respondent to sign the proposed financial agreement. The basis for the inference is strengthened by the matters of context we have referred to previously (most significantly the appellant's solicitor's letter, the holiday to Singapore in April 2011 and the circumstance that the appellant was frequently in attendance at the appellant's property and, at least occasionally, stayed overnight).
[161] Primary reasons [37].
[162] ts 124, 248 - 251; Ex D3.46 GAB 68.
Once this point is reached we are comfortably satisfied that the primary judge was correct to conclude that the parties' de facto relationship subsisted until 21 June 2011. That de facto relationship only ended when the appellant told the respondent to get out of his house following the failure to sign the proposed financial agreement. Until that point, based on an overall assessment of the facts and the relevant elements of the relationship as stated above, while the parties were not co‑habiting in the conventional sense they were nonetheless 'living together' in a marriage‑like relationship within the scope and meaning of that concept as it has been explained in the authorities. The primary judge was correct in his conclusion, essentially for the reasons that his Honour gave, as have been further developed by reference to the evidence in reviewing the finding on appeal.
Ground 2 fails. So too do the overlapping aspects of ground 6 that allege error in the primary judge concluding that the parties remained in a de facto relationship until 21 June 2011.
Disposition: Grounds 1 and 9 - the jurisdiction question
The appellant's submissions
As to ground 1, the appellant submits that the matters in s 205Z(1) of the FCA, including s 205Z(1)(a)'s de facto relationship of at least two years, have been described in jurisdictional terms.[163] That may be accepted. However, it does not take the question raised by ground 1 anywhere.
[163] Appellant's submissions par 31 WAB 13 (referring to L v C [2005] FCWA 23 [3] - [6], [16], [21]).
The appellant says that there have not been any de facto property proceedings between the parties. Nor is it alleged that either party had made, or intended to make, an application for leave under s 205ZB(2) of the FCA (the two‑year period permitted by s 205ZB(1) having expired long ago). The appellant submits that, were leave now to be sought, it is very unlikely to be granted given that, by the time the writ was issued in the District Court, any claim under the FCA would have been over eight years out of time.
In oral submissions counsel for the appellant emphasised what was referred to as the 'timing issue'.[164] Counsel submitted that, in the context of s 205ZB(1) of the FCA, the statutory restriction that absent leave a de facto partner may apply for a relevant order 'only if' the application is made within two years after the relationship ended is jurisdictional.[165] In counsel's words, the conferral of jurisdiction under s 36 of the FCA 'cannot operate forever'.[166] The time limitation under s 205ZB(1) was an 'essential condition'.[167] Timing was important because otherwise there would be a 'jurisdictional black hole'[168] such that the appellant's claim could not be considered and determined in any court.
[164] See generally appeal ts 15, 18 - 19, 27 - 33.
[165] Appeal ts 27 - 28.
[166] Appeal ts 15.
[167] Appeal ts 31.
[168] Appeal ts 18.
These circumstances provided the premise for two propositions relied on by the appellant:
1.First, absent a grant of leave under s 205ZB(2), the Family Court could not have exercised the jurisdiction conferred by pt 5A of the FCA.
2.Second, it followed that there was no: (a) jurisdiction under pt 5A for the purpose of s 36(4a) of the FCA; or (b) jurisdiction conferred on the court for the purposes of exclusive jurisdiction in s 36(8) of the FCA.
Accordingly, it is a central feature of the appellant's argument in support of ground 1 that given the passage of time any application for an order under div 2 of pt 5A required leave; and leave had not been sought or obtained. But, somewhat inconsistently, the appellant also says that if he obtains relief as sought in the District Court action the Family Court could still make property orders under s 205ZG if the respondent subsequently obtains leave under s 205ZB(2).
More generally, the appellant says that he never invoked the Family Court's exclusive jurisdiction under s 36(1), s 36(4a)(c) and s 36(8) of the FCA. Nor did the respondent assert some sort of settlement interest in relation to the alleged loan agreement let alone invoke the Family Court's exclusive jurisdiction by some non‑existent counterclaim. Rather, as emphasised by the appellant, he invoked the District Court's jurisdiction in relation to the loan (although, curiously, the appellant characterised this as a 'common law jurisdiction' rather than a statutory jurisdiction).[169]
[169] Appellant's submissions par 46 WAB 16.
On ground 9, while pointing out that the supposed jurisdictional impediment constituted by pt VII of the FLA was not raised during the course of the trial, the appellant accepts that on an appeal by way of rehearing his task is to demonstrate error. In this respect the appellant contends that the action was neither a proceeding instituted by or on behalf of the daughter (see FLA s 69C) nor a parenting order application (see FLA s 64B). The appellant submits that the relief sought in the District Court did not seek to enforce duties or obligations owed by the appellant and the respondent to the daughter.[170]
The respondent's submissions
[170] Appellant's submissions par 103E WAB 28.
As to ground 1, the respondent submits that the requirement of leave does not mean that the Family Court does not have jurisdiction. In this case, properly characterised, the Family Court had exclusive jurisdiction to determine the appellant's claim. This was because the claim was an 'application for orders with respect to property' within the meaning of the FCA (see FCA s 36(4a)(c)). In arguing that the phrase 'with respect to' should be given the widest possible meaning the respondent submitted that the clear import of the text, context and purpose of s 36 of the FCA was to ensure that property disputes between parties in a de facto relationship were resolved in the Family Court.[171]
[171] Respondent's submissions pars 18 - 19 WAB 41.
The respondent contends:
1.The term 'property' includes a chose in action. Accordingly, the appellant made an application for orders in respect of property ‑ that being the chose in action constituted by the loan under the alleged loan agreement.
2.That was all the more so to the extent that the appellant sought relief related to the property.
On ground 9, the respondent submits that the alleged loan agreement was an agreement dealing with the maintenance of the daughter. It is said that, as a result of s 69B(1) of the FLA, an application seeking to vary or revoke an agreement dealing with the maintenance of a child can only be brought under pt VII of the FLA. The respondent characterises the District Court proceedings as being an attempt to revoke or vary the parties' agreement because the daughter had ceased to live at the property.[172]
Consideration and determination
[172] Respondent's submissions par 56E WAB 49.
The starting point in relation to ground 1 is to consider the proper characterisation of the matter the subject of the parties' dispute. While it will not be so in all cases, for the purpose of the present appeal it suffices to concentrate on the substance of the appellant's claim as this adequately identifies the matter between the parties which arose for determination. Having done so it becomes necessary to examine whether the matter the subject of the parties' dispute, so characterised, falls within the exclusive jurisdiction of the Family Court. Those two steps, when taken together, raise in substance the question whether the matter the subject of the proceedings in the District Court was a matter within the jurisdiction of the Family Court under pt 5A of the FCA. If so, by s 36(8) of the FCA, the Family Court's authority to decide disputes of that kind is exclusive of any other court and the District Court lacked jurisdiction to determine the appellant's claim.
So understood it is not to the point that neither the appellant nor the respondent had commenced relevant proceedings in or had otherwise actively sought to invoke the Family Court's jurisdiction under pt 5A of the FCA.
The appellant's claim is in respect of the alleged loan agreement (or, as defined in the appellant's pleading, the 'Residence Agreement').[173] The appellant sought to characterise the payment of the $477,492.64 as a loan by him to the respondent and the son with the loan to be repaid on the sale of the property within a reasonable time after the daughter ceased to live at the property.[174] The appellant alleged breach of the Residence Agreement by which he had suffered loss and damage.[175] The appellant claimed damages and interest.[176] In the alternative the appellant sought specific performance of the Residence Agreement requiring a sale of the property together with an order that the $477,492.64 and interest thereon was paid to the appellant out of the proceeds of sale.[177]
[173] Statement of claim dated 18 August 2020 pars 18 - 19 BAB 37 - 39.
[174] Statement of claim dated 18 August 2020 pars 20 - 25 BAB 39.
[175] Statement of claim dated 18 August 2020 pars 26 - 34 BAB 39 - 40.
[176] Statement of claim dated 18 August 2020 prayer for relief (1), (2) BAB 40.
[177] Statement of claim dated 18 August 2020 prayer for relief (4), (7) BAB 40 - 41.
Accordingly, the appellant's District Court claim concerned three items of property or alleged property: the alleged loan agreement (the alleged debt constituting, if substantiated, a chose in action); the property held by the respondent and the son as registered proprietors of the fee simple estate in the property; and, at least arguably, a security interest in the property seemingly claimed by the appellant so far as he sought orders for sale of the property and repayment of the alleged debt out of the proceeds of sale. In these three respects, as counsel for the appellant properly accepted at the appeal hearing,[178] the appellant was seeking orders 'with respect to property' (see s 36(4a)(c) of the FCA).
[178] Appeal ts 18.
At the appeal hearing, the appellant also accepted, by his counsel, that if there had been a two‑year de facto relationship the appellant might have brought proceedings in the Family Court in relation to the alleged debt within two years after the end of the relationship.[179]
[179] Appeal ts 18 - 19, 27.
The appellant's concession in this latter respect was properly made. Relevantly, if it is assumed that there was a two‑year de facto relationship (ie s 205Z(1)(a) of the FCA was satisfied) and proceedings were then commenced by the appellant in the Family Court within two years after the end of the relationship (ie s 205ZB(1) was satisfied):
1.The appellant might have sought a declaration, under s 205ZA(1) of the FCA, that the alleged debt existed as between the appellant (as creditor) and the respondent (as debtor). So too the appellant might have sought a declaration as to:
(a)the appellant's right to require repayment of the debt by the respondent (ie when the debt was repayable); and
(b)the appellant's right, if any, to obtain a sale of the property and payment out of the proceeds of such a sale at a certain point in time.
2.The appellant might also have sought a consequential order, under s 205ZA(2) of the FCA, to give effect to the various declarations. Such a consequential order might have provided for the repayment of the debt at the relevant time; or, failing payment, the sale of the property and the payment of the debt out of the proceeds of sale.
This conclusion is consistent with observations made by Owen JA (Pullin & Buss JJA agreeing) in Mrowka v Format Finishing Pty Ltd.
Mrowka v Format Finishing Pty Ltd also concerned whether the District Court lacked jurisdiction in relation to proceedings concerning a loan because the relevant matter was within the exclusive jurisdiction of the Family Court. The facts in Mrowka are more complex than those in the present appeal. In summary, however, M and his former de facto partner jointly owned and operated a business through F, a trustee company. After separation the former couple filed consent orders at the Family Court to determine their financial relationship. Under the orders, among other things, M transferred his interest in F and the business to his former de facto partner for an agreed amount. However, the orders were silent in relation to a particular loan that had been made by M to F. The parties disputed whether repayment of the loan was taken into account in the settlement amount. M commenced proceedings against F in the District Court to recover the loan. The District Court held that it lacked jurisdiction to hear the claim as the Family Court had exclusive jurisdiction over the loan account while the consent orders remained extant.
This court allowed an appeal finding that the matter of the loan account did not lie within the exclusive jurisdiction of the Family Court. It is not necessary to discuss Owen JA's reasons in this respect. What is important for present purposes is obiter dicta volunteered by his Honour having concluded that, as between M and the trustee company F, M was at liberty to bring proceedings against F in the District Court and was not precluded from doing so by reason of the exclusive jurisdiction reposed in the Family Court. Owen JA stated:
I acknowledge that this result is not without its complications. As [M] conceded in his written submissions, the District Court would have no jurisdiction to make an order dealing with a chose in action that was in dispute between de facto partners.[180] (emphasis added)
[180] Mrowka v Format Finishing Pty Ltd [94].
Owen JA did not explain why such a dispute between former de facto partners as to the existence of a debt (which in substance is the nature of the dispute between the appellant and the respondent) would be within the exclusive jurisdiction of the Family Court. It was not necessary for his Honour to do so. Owen JA had, however, referred to s 205ZA and the metes and bounds of the Family Court's exclusive jurisdiction.[181] Owen JA had also referred to the trial judge's conclusion that the Family Court had jurisdiction and power to declare the title or rights that M and his former de facto partner had in respect of property, to alter their interests in respect of that property and to make consequential orders ‑ it being common ground before the District Court that the Family Court had jurisdiction to make orders declaring the title or rights that M had in respect of the loan.[182]
[181] Mrowka v Format Finishing Pty Ltd [33], [56] - [64].
[182] Mrowka v Format Finishing Pty Ltd [21] - [22].
The conclusion and analysis at [168] ‑ [169] above is consistent with and explains Owen JA's obiter observation in Mrowka v Format Finishing Pty Ltd. In short, the Family Court has exclusive jurisdiction to determine the respective interests in property as between two former de facto partners (assuming there was a de facto relationship between the partners for at least two years and an application was made within two years after the relationship ended).
Accordingly, having regard to the outcome of the appeal on grounds 2 ‑ 4 and 6 ‑ 8, the Family Court had jurisdiction to determine the matter the subject of the parties' dispute had the appellant applied for the relevant orders within two years after the end of the parties' relationship. Once this point is reached the so‑called 'timing issue' became critical for the appellant's argument in support of ground 1.[183]
[183] Something accepted by counsel for the appellant: appeal ts 19.
The 'timing issue' as raised by the appellant in support of ground 1 is redolent of an argument that was rejected in this court's decision in Sewell v Wilson.
Sewell v Wilson concerned the Family Court's federal jurisdiction. Former spouses (ie husband and wife) entered into an alleged oral contract. This ostensibly provided the husband with payment for work undertaken on the matrimonial home. In reality it gave effect to an agreed property settlement between the parties rendering Family Court proceedings unnecessary. The husband later brought proceedings in the District Court for breach of contract. The wife argued that the District Court did not have jurisdiction to hear the matter on the basis that it was a 'matrimonial cause' and therefore within the exclusive jurisdiction of the Family Court.
Two provisions of the FLA were material to the decision:
1.The term 'matrimonial cause' was relevantly defined in s 4(1)(ca)(i) of the FLA to mean proceedings between parties to a marriage with respect to the property of the parties or either of them being proceedings arising out of the marital relationship.
2.Section 44(3) of the FLA relevantly provided that where, as in Sewell v Wilson, more than 12 months had elapsed since the parties' divorce, proceedings under s 4(1)(ca) could only be commenced with the leave of the Family Court. Such leave will not be granted unless, among other things, the Family Court is satisfied that hardship would be caused to a party to the marriage, or a child, if leave were not granted (FLA s 44(4)).
In Western Australia the Family Court had exclusive jurisdiction in relation to a matrimonial cause as defined in s 4(1)(ca)(i) of the FLA.
The court held, in effect, that the proceedings were in substance a matrimonial cause (being intended to circumvent the need for a property settlement in the Family Court) and therefore were not within the jurisdiction of the District Court. Separately the husband argued that at the time the contract was entered into the Family Court did not have jurisdiction with respect to the marital property. This was because the 12‑month period specified in s 44(3) of the FLA had elapsed and any application for a property settlement could only be brought with the leave of the court or by consent. In this respect the parallel with the appellant's 'timing issue' argument as contended for in support of ground 1 is obvious.
Newnes JA (Buss & Murphy JJA agreeing) rejected the argument in peremptory terms. His Honour stated:
I do not consider there is any merit in that submission. The Family Court (WA) clearly continued to have jurisdiction. The fact that, because of the lapse of time, the leave of the Family Court (WA) had to be obtained before the [husband] could invoke the jurisdiction did not mean that the Family Court (WA) had ceased to have jurisdiction.[184]
[184] Sewell v Wilson [64] - [65].
Similarly, the 'timing issue' argument as advanced by the appellant in support of ground 1 is misconceived. It confuses the jurisdiction of the Family Court under pt 5A of the FCA with the procedural requirements of the FCA to invoke that jurisdiction.
The Family Court has the exclusive authority to decide matters of the kind referred to in s 36(1) of the FCA - more specifically, in the context of the present appeal, matters within the Family Court's jurisdiction under pt 5A to make declarations and to hear and decide applications for orders with respect to property (see FCA s 36(4a)(a) and (c)). Section 205ZB imposes a procedural requirement that must be observed by a de facto partner in seeking that the Family Court exercise its jurisdiction under div 2 of pt 5A of the FCA. The application must be made within two years after the end of the de facto relationship or otherwise with leave (see FCA s 205ZB(1) & (2)).
In this respect we reject the appellant's submission that s 205ZB(1) is jurisdictional insofar as it provides for an application 'only if' made within two years after the relationship ended. By s 205ZB(2) an application is also permitted with leave after the two‑year period if the Family Court is satisfied that hardship would be caused to a de facto partner if leave were not granted. Accordingly, s 205ZB, read and construed as a whole, does not foreclose the Family Court's jurisdiction under pt 5A on the expiration of the two years. The jurisdiction may be invoked with leave. Such a leave requirement is procedural in nature ‑ it affects the remedy but not the right.[185]
[185] Emerald v Emerald [2018] FamCAFC 217 [89], [96], [178] (referring to Rennie v Higgon (1981) FLC 91-087, 76595).
Nor do we accept the appellant's submission that, unless s 205ZB(1) is construed as providing for a time limit as an essential condition of the Family Court's jurisdiction, there will be some jurisdictional lacuna.
Section 205ZB does not create a lack of jurisdiction in the Family Court. Rather, properly construed, s 205ZB imposes a restraint on the right of a de facto partner to apply for an order under div 2 of pt 5A in relation to the relationship. The Family Court's jurisdiction under pt 5A is unaffected by the time limit specified in s 205ZB(1). Two matters demonstrate that unequivocally. First, with leave a de facto partner may apply despite the expiration of the two years. The Family Court has jurisdiction to grant such leave. Second, s 205ZB is not concerned with jurisdiction - that is the concern of other provisions with the FCA (such as s 36). Section 205ZB is concerned with the circumstances in which a de facto partner whose de facto relationship has ended may apply to invoke the Family Court's jurisdiction under div 2 of pt 5A.
It is true that, in the circumstances of the present appeal, absent leave under s 205ZB(2) the Family Court would not have exercised its jurisdiction as conferred by pt 5A. But that is not to deny the existence of the Family Court's jurisdiction. All the more so the circumstance that, absent leave, the appellant will not have a forum in which to bring his claim cannot control the proper construction of s 205ZB(1). It is well understood that legislative intervention may preclude a person from pursuing his or her rights in a court of competent jurisdiction. That, for example, is in substance the effect of a statutory limitation bar.
The property interests which were the subject of the District Court proceedings came into existence very shortly after the end of the parties' de facto relationship. They were created as part of an arrangement to attempt to settle the claims the parties might have against each other arising out of the end of the de facto relationship. There was a very clear connection between the claims made in relation to that property and the parties' de facto relationship. It is unnecessary in the present case to determine whether different considerations might arise where the relationship between the property which was the subject of the proceedings and the de facto relationship was more remote (for example, a commercial contract entered into between persons who happen to have been de facto partners many years after the end of the de facto relationship which lack any connection with the relationship).
Ground 1 fails. The primary judge was correct to hold that the District Court lacked jurisdiction as the matter raised by the appellant's claim fell within the exclusive jurisdiction of the Family Court under pt 5A of the FCA. In the circumstances it is not necessary to consider ground 9.
Conclusion and orders
The appeal should be dismissed. Prima facie costs should follow the event, ie the appellant should pay the respondent's costs of the appeal to be assessed if not agreed. The parties should be heard on the costs of the appeal if some other order is sought as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
HQ
Associate to the Honourable Justice Vaughan
5 APRIL 2024
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