Beckham & Quarrington
[2024] FedCFamC1A 136
•7 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Beckham & Quarrington [2024] FedCFamC1A 136
Appeal from: Beckham & Quarrington (No 3) [2024] FedCFamC2F 74 Appeal number: NAA 40 of 2024 File number: BRC 12076 of 2017 Judgment of: ALDRIDGE J Date of judgment: 7 August 2024 Catchwords: FAMILY LAW – APPEAL – Appeal from declaration that the parties were in a de facto relationship – Leave to appeal not required – Alleged incorrect findings were open on the evidence – Where the reasons are brief but clear – Extensive reasons not required for accepting the evidence of a particular witness – Judge’s task is to apply the law not recite it – Appeal dismissed. Legislation: Family Law Act 1975 (Cth) s 4AA
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.53
Cases cited: AMS v AIF (1999) 199 CLR 160; [1999] HCA 26
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
CDJ v VAJ (1998) 197 CLR 182; [1998] HCA 67
Crick & Bennett (2018) FLC 93-832; [2018] FamCAFC 68
Cuan & Kostelac (2017) FLC 93-801; [2017] FamCAFC 188
Dahl & Hamblin (2011) FLC 93-480; [2011] FamCAFC 202
Fairbairn v Radecki (2022) 275 CLR 400; [2022] HCA 18
Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22
Gregory R Ball Pty Ltd v Stead (1993) 9 NSWCCR 148
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Number of paragraphs: 58 Date of hearing: 7 August 2024 Place: Sydney (via video link) Counsel for the Appellant: Mr Hartwell Solicitor for the Appellant: C Lawyers The Respondent: Self-represented litigant ORDERS
NAA 40 of 2024
BRC 12076 of 2017FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR BECKHAM
Appellant
AND: MS QUARRINGTON
Respondent
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
7 AUGUST 2024
THE COURT ORDERS THAT:
1.The Application in an Appeal filed 24 July 2024 is dismissed.
2.The appeal is dismissed.
3.The application for costs is dismissed.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Beckham & Quarrington has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTALDRIDGE J:
On 24 January 2024 a judge of the Federal Circuit and Family Court of Australia (Division 2) made the following declaration:
1.[Ms Quarrington] and [Mr Beckham] lived in a de facto relationship in Queensland from October 2012 until November 2014.
Mr Beckham (“the appellant”) has appealed against that declaration.
At the hearing, Ms Quarrington (“the respondent”) had unsuccessfully asserted that the parties had been in a de facto relationship between October 2012 and 23 May 2017. The appellant’s case was that there had never been a de facto relationship.
APPLICATION IN AN APPEAL
The appellant seeks to adduce evidence in the appeal in the form of an affidavit he prepared for use in the hearing before the primary judge dated 13 November 2023.
The purpose of the affidavit is to demonstrate the layout of the appellant’s bedroom and the children’s room so as to be able to submit that the layout made sexual activity in that room unlikely. It was the respondent’s case, denied by the appellant, that sexual activity had continued between them after October 2012.
An application to rely on this evidence was refused by the primary judge on 8 December 2023. There is no appeal against that decision but there could have been. Interlocutory decisions that affect the outcome can be the subject of appeal against the final order (Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478).
In CDJ v VAJ (1998) 197 CLR 182, the plurality pointed out at [116] that a relevant consideration in determining whether to admit evidence on appeal is whether the evidence was available for use at the hearing.
The proposed evidence clearly was. The question of the existence of a sexual relationship at various times was an obvious issue between the parties. One would have expected that this evidence would have been adduced in chief. It was not. One would have expected the respondent to have been cross-examined on the material the subject of this affidavit. She was not. At least in that last sense, the evidence is likely to be controversial.
These matters combined to persuade me that the evidence should not be admitted and the application be dismissed.
LEGAL PRINCIPLES
De facto relationships are defined by s 4AA of the Family Law Act 1975 (Cth) (“the Act”) in the following terms:
4AA De facto relationships
Meaning of de facto relationship
(1) A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b) the persons are not related by family (see subsection (6)); and
(c)having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has effect subject to subsection (5).
Working out if persons have a relationship as a couple
(2) Those circumstances may include any or all of the following:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g)whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h) the care and support of children;
(i) the reputation and public aspects of the relationship.
(3)No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4)A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
It is apparent from the reasons of the primary judge that many of the matters taken into account by his Honour were not in dispute. Rather, the parties differed as to what was to be made of those facts.
The following is taken from what appear to be unchallenged findings made by his Honour.
BACKGROUND
The parties met in January or February 2011. At the time the respondent was living in Region D and travelled to Brisbane to see the appellant.
A sexual relationship began and in February 2012 the respondent conceived the parties’ child X.
The appellant attended nearly all of the respondent’s antenatal appointments.
In October 2012 the respondent moved into the appellant’s house in Brisbane. At the least, the appellant paid the rent, household expenses (excluding food for the respondent) and the expenses of the baby. It was not suggested that the respondent had an independent source of income.
The parties coparented X.
The parties jointly told the appellant’s mother about the pregnancy.
X was christened in 2013 at a ceremony attended by family and friends.
The parties had a public relationship at children’s events such as birthday parties, park play, ballet classes and music classes.
The parties spent many weekends together with X and the appellant’s child from a previous relationship in Region D.
It may well be that these matters of themselves are sufficient to justify his Honour’s findings.
In addition, his Honour found the respondent took care of the appellant’s daughter at times (at [95]).
There was a public aspect to the relationship as described by two witnesses. The parties went together on a business trip to Region E. They hosted birthdays for X inviting friends and had people stay with them for two to three weeks in Brisbane. They attended a gathering with family and friends at a restaurant.
There are family photographs showing the parties, X and the appellant’s daughter as a group. These were produced by a friend of the respondent’s.
The parties travelled as a family unit to Melbourne, Region F in New South Wales and Region D for business trips or holidays.
This led his Honour to conclude:
100.That the de facto relationship started in October 2012. At this point their relationship changed from boyfriend and girlfriend and they moved into the same home and continued an infrequent sexual relationship. [The respondent] rendered some domestic tasks for both. There was a social and public aspect to their relationship after they started living in the same home.
101.Their de facto relationship ended in November 2014 when [the respondent] moved to sleep full time in her own bed in the anteroom. Their sexual relationship has ceased. The [sic] were completely estranged. Thereafter, they lived as a separated couple under the one roof but coparenting [X]. They eventually lived totally apart.
102.The above two events were the “watershed” moments in their relationship evidencing the commencing and then ending their de facto relationship.
103.[The appellant] during this period more than coparented. His actions bespeak of a different intention of living together on a genuine domestic basis. His actions bespeak differently to his now recorded statements. I do not accept he put any conditions upon [the respondent’s] occupation of the Brisbane home.
THE APPEAL
The Notice of Appeal sought leave but it is not required (Dahl & Hamblin (2011) FLC 93-480; Cuan & Kostelac (2017) FLC 93-801; Crick & Bennett (2018) FLC 93-832).
Grounds 1 and 2
These grounds assert that the primary judge erred in finding that the parties’ sexual relationship continued after October 2012 and that the appellant did not put any conditions on the respondent’s use of the Brisbane home.
His Summary of Argument did not say why these findings were said to be wrong.
The findings are easily explained because they accord with the respondent’s evidence which the primary judge obviously preferred on these issues.
This was of course open to the primary judge and, save for two matters, the primary judge simply had to choose between these competing versions. The first of the two matters is the appellant’s concession that after the birth of X they shared the same bed, at least at times. The second was the appellant’s obvious error, given the birth date of X, that the last time sexual relations took place was in January 2012.
The real complaint is that the primary judge did not say that he preferred the evidence of the respondent or explain why. The absence of reasons is the subject of Ground 3 and I now turn to it.
Did the primary judge give inadequate reasons and fail to make “sufficient” credit findings? (Ground 3)
The obligation to give adequate reasons and the content of them is well known.
In Bennett and Bennett (1991) FLC 92-191, the Full Court adopted the following test (at 78,266):
The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will…be inadequate if:–
(a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b) justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.
In Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, this was expanded upon as follows:
57.The giving of adequate reasons lies at the heart of the judicial process. Failure to provide sufficient reasons promotes “a sense of grievance” and denies “both the fact and the appearance of justice having been done”, thus working a miscarriage of justice.
58.The extent and content of reasons will depend upon the particular case under consideration and the matters in issue. While a judge is not obliged to spell out every detail of the process of reasoning to a finding, it is essential to expose the reasons for resolving a point critical to the contest between the parties.
59.The reasons must do justice to the issues posed by the parties’ cases. Discharge of this obligation is necessary to enable the parties to identify the basis of the judge’s decision and the extent to which their arguments had been understood and accepted… it is necessary that the primary judge “ ‘enter into’ the issues canvassed and explain why one case is preferred over another”.
(Citations omitted)
A common theme which emerges from these cases is that what constitutes adequate reasons depends on the nature and scope of the issues to be determined.
As I have already identified, most of the primary facts were not in dispute, rather it was the characterisation of them that was in issue.
Two issues that were in dispute were the time of the end of the sexual relationship and whether the appellant had placed any conditions on the respondent moving to live in his house in Brisbane.
As to the latter, the appellant’s evidence consisted of:
43.[The respondent] and I agreed that it was in the baby’s best interest that there was not a repeat of what had happened with [the appellant’s daughter], and that whilst there was not going to be a de facto relationship between us, which I made extremely clear, I did want to co-parent the baby with her, and we discussed arrangements about how that could happen. I told her I was prepared to continue to pay the rent and household expense, but she had to pay for all her personal expenses, including food, I told her I would contribute to the baby’s expenses, and we could live separately under the same roof and no friends with benefits. [The respondent] agreed to this arrangement and said she was going to receive maternity leave payments from the birth for a year. It was on that basis, [the respondent] moved to Brisbane to the … house shortly before the birth and of our child [X in November 2012].
(Appellant’s affidavit filed 20 September 2023, paragraph 43)
The primary judge clearly did not accept this. To repeat a passage already quoted, his Honour said:
103.[The appellant] during this period more than coparented. His actions bespeak of a different intention of living together on a genuine domestic basis. His actions bespeak differently to his now recorded statements. I do not accept he put any conditions upon [the respondent’s] occupation of the Brisbane home.
In other words, his Honour found that the unchallengeable facts were not consistent with the appellant’s broadly stated assertions. The reasons are brief but clear. On balance, that is sufficient to explain the preference for the acceptance of the respondent’s evidence on these two contested issues.
Extensive reasons need not be given for accepting the evidence of a particular witness (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280).
I bear in mind also that an appellate court will avoid an overly critical or pernickety analysis of the primary judge’s reasons (AMS v AIF (1999) 199 CLR 160 at [150], per Kirby J) and that “Appellate courts exist to remedy errors of law and miscarriages of justice not to dot the ‘Is’ and cross the ‘Ts’ in the reasons for judgment of trial judges” (Handley JA in Gregory R Ball Pty Ltd v Stead (1993) 9 NSWCCR 148).
The reasoning path of the primary judge for preferring the respondent’s evidence is discernible from the reasons which therefore are, on that aspect of the matter, sufficient.
Did the primary judge misapply s 4AA(1) of the Act or have no regard to that section by not considering whether the parties had a relationship on a genuine domestic basis? (Ground 4)
The first complaint is that his Honour failed to recite s 4AA(1)(c). The submission is wrong, as counsel who appeared on the appeal but who did not prepare the Summary of Argument very properly pointed out. His Honour did quote the section at [83]. Further, no error would normally arise merely because a trial judge did not set out provisions in full as the relevant task is to apply the law and not to recite it.
The submission is that the section was misapplied when his Honour said the following at [99]:
Considering the above, I find there was a de facto relationship wherein [the respondent] and [the appellant] lived together as a couple in a bona fide domestic relationship.
(Emphasis added)
It is not altogether clear to me what the substantive difference between the words “bona fide” and “genuine” might be. One of the meanings of bona fide is genuine.
I consider however that the primary judge did have in mind the statutory test. The section was quoted at [83] and at [103] the finding was made that the appellant had the “intention of living together on a genuine domestic basis”. It was submitted that there was no analysis or consideration of “genuine domestic basis”. In oral submissions it was explained that this was a reference to the following passage in Fairbairn v Radecki (2022) 275 CLR 400:
39.The language of s 4AA of the Act and its reference to “living together” requires no different approach to determining whether a relationship exists of the kind defined. “Living together”, consistently with authority, should be construed as meaning sharing life as a couple. Section 4AA does not prescribe any way by which a couple may share life together. Its language is sufficiently broad to accommodate the great variety of ways a de facto relationship may exist. That conclusion is supported by the varied factors listed in s 4AA(2). In a given case, some of the factors listed in s 4AA(2) may be relevant and some may be irrelevant; inevitably some may have greater prominence than others. A conclusion that a de facto relationship has ended may also arise because of factors not listed in s 4AA(2). Such a conclusion is mandated by s 4AA(3) and (4). In particular, s 4AA(4) is a statutory recognition that what may constitute a genuine de facto relationship is not be [sic] determined in the same way in every case by reference to rigid criteria that must always be satisfied. In that respect, the language of s 4AA(2)(b) does not assume that every de facto relationship must have a “common residence” to some “extent” and of some “nature”. Such a construction is entirely denied by s 4AA(3).
That paragraph explains the definition of de facto relationships and the broad nature of relationships that may fall within it. I do not see that the primary judge needed to consider this topic specifically as nothing seems to have turned on it and I was not taken to any submissions made to his Honour that suggested otherwise. The question was whether the circumstances taken together satisfied the statutory test or not. As I have said, his Honour’s main task was to apply the law and not to recite it.
This ground is not made out.
It follows that the appeal will be dismissed.
COSTS
The respondent has sought an order for the payment of her costs of the appeal in the sum of $15,000. She tells me that those costs were incurred by a lawyer giving her advice on the appeal. That seems a very large amount to be incurred simply for giving advice on an appeal particularly as to a judgment that is 13 pages long.
Rule 13.53 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) requires people seeking costs of an appeal to file a Schedule of Costs identifying the costs that they will be seeking on the appeal.
On 8 April 2024 a judicial registrar ordered that any such Schedule of Costs must include the costs sought on a party/party basis.
It has been the practice of courts hearing appeals in this Court to fix, where they can, the costs of the appeal so as to save litigants and the court the time and trouble taken in assessing those matters. The purpose of the rule is to identify, for the assistance of the Court and the other party to the appeal, the costs that are sought so that submissions as to the reasonableness and appropriateness of the costs sought can be made.
That rule was not complied with and, apart from the respondent’s statement that she has incurred $15,000 for advice, there is nothing before the Court that would justify that.
Having regard to the amount involved and the failure to comply with the rules, I do not consider that I am in a position to fix the costs and the application is dismissed.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 13 August 2024
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