Bapodra & Acharya (No 2)
[2023] FedCFamC1A 42
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Bapodra & Acharya (No 2) [2023] FedCFamC1A 42
Appeal from: Bapodra & Acharya [2022] FedCFamC2F 1160 Appeal number(s): NAA 216 of 2022 File number(s): MLC 10601 of 2020 Judgment of: ALDRIDGE J Date of judgment: 31 March 2023 Catchwords: FAMILY LAW – APPEAL – Appeal against a declaration made by a judge that the appellant and respondent were not in a de facto relationship – Standard of proof to be applied in civil matters – Where the primary judge referred to the standard of proof being beyond reasonable doubt in one aspect of the case – Where the court is satisfied that this was a slip or error – Where the slip or error did not give rise to any miscarriage of justice – Appeal dismissed – The appellant to pay the respondent’s costs in a fixed sum. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) s 4AA, 90RD
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 36(1)(b), 94AAA(3)
Cases cited: Benson & Drury (2020) FLC 93-998; [2020] FamCAFC 303
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28
Number of paragraphs: 34 Date of hearing: 16 February 2023 Place: Sydney (via video link) The Appellant: Self-represented litigant Counsel for the Respondent: Ms Colla Solicitor for the Respondent: Merton Lawyers ORDERS
NAA 216 of 2022
MLC 10601 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS BAPODRA
Appellant
AND: MR ACHARYA
Respondent
order made by:
ALDRIDGE J
DATE OF ORDER:
31 march 2023
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 30 January 2023 is dismissed.
2.The appeal is dismissed.
3.The appellant pay the respondent’s costs fixed in the sum of $15,000.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bapodra & Acharya has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
INTRODUCTION
Ms Bapodra (“the appellant”) has appealed against a declaration made by a judge of the Federal Circuit and Family Court of Australia (Division 2) that she and Mr Acharya (“the respondent”) “were not in a de facto relationship pursuant to s 90RD of the Family Law Act 1975 (Cth) for the period June 2015 until March 2019”, which was made 31 August 2022.
The appeal was listed for hearing on 16 February 2023.
On 30 January 2023, the appellant filed an Application in an Appeal seeking to “strike out” the respondent’s Summary of Argument and that she be permitted to adduce further evidence in the appeal. This was because the respondent’s lawyers filed a Summary of Argument 10 days after the time by which it should have been filed, as required by the directions of the appeal judicial registrar made 8 November 2022.
At the hearing of the appeal, I gave leave to the respondent to rely on the Summary of Argument and also his schedule of costs, which was filed one day late. I did so because the appellant was unable to identify any prejudice she would suffer if the leave was granted.
Although timetables imposed by the court should be meticulously met by parties, that does not preclude a court, in appropriate circumstances, giving leave to parties to rely on documents filed outside of that time.
It is for the appellant, however, to demonstrate error on the part of the primary judge and that obligation would remain even if the respondent was not permitted to make submissions, either in writing or orally. In these circumstances, the interests of justice and the proper and timely dispatch of court business favoured the receipt of the respondent’s Summary of Argument.
APPLICATION TO ADDUCE FURTHER EVIDENCE
The appellant describes the further evidence she seeks to adduce in very general terms in paragraphs 18–21 of an affidavit filed on 30 January 2023. The appellant refers to photographs and a mobile phone which could not be located at the time of the hearing, but which she has now found. The photographs are not produced or described in the evidence and it is entirely speculative as to whether they would assist the appellant’s case, let alone demonstrate error on the part of the primary judge. Therefore, it is impossible to see whether the admission of those photographs into evidence would lead to a different result, which is a significant factor to be taken into account in determining whether to adduce further evidence (CDJ v VAJ (1998) 197 CLR 172 at [114]).
The other evidence that the appellant seeks to adduce is evidence of an investigation by the Victorian Police into an allegation of perjury against the respondent. Indeed, the appellant asserts that he has been charged with that offence by the police. No further details however are given.
The appellant does not identify what evidence is alleged to have been given falsely. None of the police documents is annexed to her affidavit. In the absence of that material, it is impossible to assess the probative value of the proposed evidence.
Further, the evidence was not available at the hearing which meant that if it was to be received, the appeal would have to be adjourned to enable the evidence to actually be adduced. That is an undesirable course which also favours dismissal of the application.
The Application in an Appeal will be dismissed.
THE APPEAL
There is but one ground of appeal, which is:
1.That the judge applied the wrong test. The judge should have considered all evidence and materials presented on the basis of being satisfied on a balance of probabilities. …
As the ground continues to point out, at [110] her Honour said the following:
1.… “I am not satisfied beyond a reasonable doubt that the applicant and respondent cohabitated on a permanent basis together throughout the period of their relationship, as alleged by the applicant”.
That, indeed, was an error. The standard of proof to be applied in civil matters, including applications for declarations as to the existence and length of de facto relationships under s 90RD of the Act, is that set out by s 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”), which is, that the case must be proved on the balance of probabilities, having regard to the matters set out in s 140(2) of the Evidence Act.
The respondent accepts that the primary judge made the error as asserted, but says, that when regard is had to the reasons as a whole, the reference to “beyond reasonable doubt” is as an accidental slip, which does not bespeak error or, alternatively, if it was an error, it was one that did not lead to a miscarriage of justice.
There is no doubt that the primary judge was well aware of s 140 of the Evidence Act and that the onus of proof in establishing that a de facto relationship was on the balance of probabilities. Her Honour expressly said so at [25] and repeated this at [33]–[34], where s 140 is set out in full.
The reference to “beyond reasonable doubt” appears in a section headed “to what extent did the parties share a common residence”. This was the first of a number of sections dealing, in turn, with the circumstances raised by s 4AA(2) of the Act which are to be taken into account when working out whether a person had a de facto relationship with another person. In none of those sections does the primary judge refer again to “beyond reasonable doubt”, but did refer once to the evidence not being established to the requisite level at [130]. There is much to be said therefore to the view that the reference to “beyond reasonable doubt” was an accidental slip and that her Honour did not, in fact, apply that test.
Alternatively, the question arises, even if there was a slip or indeed an error, whether this led to a miscarriage of justice. In Benson & Drury (2020) FLC 93-998 (“Benson”) at [70]–[72] the Full Court said:
70.We have found there is merit in Ground 1. In the event that the appeal was allowed, counsel for the appellant sought that we order a rehearing. Section 94AAA(6) of the Act provides that on appeal this court “may, if it considers appropriate, order a rehearing”. Section 28(1)(f) Federal Court of Australia Act 1976 (Cth) is in similar terms.
71. In Conway v The Queen (2002) 209 CLR 203 the High Court said at [36]:
…Section 28(1)(f) of the Federal Court of Australia Act empowers the Federal Court to allow an appeal “on any ground upon which it is appropriate to grant a new trial”. This power is expressed in wide terms and should be given a liberal construction. It is a power that must, of course, be exercised judicially. But there is nothing unjudicial, arbitrary or capricious in refusing to order a new trial when, although error has occurred, no miscarriage of justice has occurred…
72.Whilst we accept that they are limited, there are occasions where an error of law established on appeal will not as a matter of course lead to the appeal being allowed.
Section 94AAA(3) of the Act has been repealed and replaced by s 36(1)(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) which provides that:
Form of judgment on appeal
(1) Subject to any other Act, the Federal Circuit and Family Court of Australia (Division 1) may, in the exercise of its appellate jurisdiction:
…
(b)give such judgment or make such order as, in all the circumstances, it thinks fit, or refuse to make an order;
There is no difference in substance between that section and the repealed section, thus, the statement of principle in Benson continues to apply.
As I have said, the phrase “beyond reasonable doubt” appears only in the section headed “to what extent did the parties share a common residence”. Under this heading the primary judge discussed and discounted various pieces of evidence relied upon by the appellant to establish that she and the respondent lived together at her home and explained why it was given little or no weight.
As to a visa application form signed by the respondent that listed the appellant’s home address as his own, and one Telstra invoice which had the respondent’s name on it, her Honour said that she was not satisfied that one form and one bill were sufficient to establish evidence of the respondent living there (at [101] and [104]). The primary judge then referred to other evidence (at [108]) that suggested that the respondent was not living at the home of the appellant. This led her Honour to find:
109.I am persuaded that there were periods where [the appellant] and Respondent spent considerable time at the residence of [the appellant]. It was apparent based on the frequent haircuts provided to …[the appellant’s son] by both the Respondent and …[the respondent’s brother] that the two family units spent time together.
Her Honour then moved to the already quoted passage, including the reference to “beyond reasonable doubt”.
It is plain from this section of the reasons read as a whole, that her Honour came to the view that there was insufficient evidence to support the allegation of living together at the home, notwithstanding that the respondent spent time there. Such findings point to a failure to be satisfied on the balance of probabilities rather than beyond a reasonable doubt. Alternatively, it is difficult to see how a different finding would result from looking at those facts on the balance of probabilities.
However, that was but one consideration of many undertaken by her Honour.
The primary judge accepted that the parties had a sexual relationship. Her Honour was not satisfied that there was sufficient evidence to establish that the parties’ intermingled their finances or that they were reliant on the other financially ([117]–[123]), that they did not intend to have a shared life together ([124]–[130]), that they did not purchase any property together during the relationship ([144]–[147]), that there was no evidence of the care and support of the appellant’s child ([131]–[134]) and that the parties presented to the public as a committed couple (largely on the basis that no witnesses to that effect were called by the appellant) ([135]–[143]). Thus, the only factors found by her Honour that were supportive of a de facto relationship were the sexual relationship and the fact that the respondent spent time at the appellant’s home.
In coming to these findings, her Honour largely discounted the evidence of almost of the witnesses in the case for reasons that were set out generally at [29]–[32]. In passing, I note that the reason given in [32], which was that the witnesses were unable to maintain eye contact with the primary judge whilst giving their oath or affirmation, or looked away from her whilst giving evidence, is a somewhat novel basis for discounting evidence. Nonetheless, the other factors noted by her Honour supported her general conclusion that “the evidence provided by the supporting witnesses for both parties was very limited and their probative value was very low” (at [35]).
Not satisfied with these general comments, her Honour dealt with the evidence of the witnesses called by the parties at greater length, and for the reasons given in relation to each of them, determined that either no weight or little weight could be placed upon their evidence (see [47]–[53], [67]–[91]).
There is no challenge to any of those credit findings.
All these matters led to the following conclusion:
149.It is necessary to consider the unique circumstances of this relationship when considering the provisions of s4AA. There are some factors which support the existence of de facto relationship and some which do not. It is necessary to consider all of the circumstances holistically rather than using s4AA as some sort of checklist. Whilst both parties called several witnesses in support of their respective cases, the evidence of the supporting witnesses was limited and clearly much of their evidence reflected what the Applicant or the Respondent had told them about the nature of their relationship. Relationships vary enormously. People generally don’t meet someone with the immediate intention of being in a de facto relationship. Typically, relationships evolve over time. People can also be in romantic relationships which fall short of a de facto relationship.
150.In this case I am satisfied that [the appellant] and the Respondent were in a romantic relationship. They were boyfriend and girlfriend. They were not “friends with benefits”. However when considering the whole of the evidence I am not satisfied that [the appellant] has discharged the onus of establishing the fact that they were in a de facto relationship. Whilst the parties appeared to interact in each other’s lives for some 4 or 5 years, there is a lack of evidence of there being a mutual degree of commitment to a shared life.
It is apparent that her Honour was of the view that the appellant had fallen well short of proving her case. That was, to a very significant degree, due to the fact that she was unable to call acceptable evidence to prove it. The fact that the respondent’s witnesses were regarded in the same way by her Honour does not assist the appellant, because the onus of proof lay on her to prove her case.
I am comfortably satisfied, notwithstanding the reference to “beyond reasonable doubt” in relation to just one aspect of the case, that that slip or error did not give rise to any miscarriage of justice.
Finally, although not a ground of appeal, the appellant submitted that the evidence on which she sought to rely was given insufficient weight. It is also apparent that she effectively asked me to determine the factual issues for myself. That may just be simply on the basis that the appeal was to be allowed, and I would then be obliged to determine the facts for myself (see Lee v Lee (2019) 266 CLR 129). However, I have not found error and matters of weight are within the province of the trial judge unless error is demonstrated.
CONCLUSION AND COSTS
It follows that the appeal will be dismissed.
The respondent sought an order for costs in the sum of $19,344.67 in relation to the appeal. However, that sum includes an appearance at the appeal by senior counsel of $5,000 per day and a fee for taking reserve judgment at $600. Counsel who appeared at the appeal was junior counsel and I do not consider it a reasonable charge for taking a reserve judgment when the parties have been excused from attendance and a copy of the reasons will be available electronically very shortly thereafter.
The appeal has been wholly unsuccessful. The appellant did not raise any financial matters for consideration. Accordingly, in all the circumstances, it is just that the appellant pay the respondent’s costs fixed in the sum of $15,000.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 31 March 2023
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