Berrell & Tily (No 3)

Case [2023] FedCFamC1F 14

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Berrell & Tily (No 3) [2023] FedCFamC1F 14

File number(s): SYC 3428 of 2018
Judgment of: CHRISTIE J
Date of judgment: 24 January 2023
Catchwords:

FAMILY LAW – THRESHOLD HEARING – Where the applicant asserts the parties were in a same-sex de facto relationship – where the parties had a commercial relationship – where the parties had a long standing friendship – where the applicant asserts the parties had a secret de facto relationship – where the respondent denies any domestic relationship with the applicant – where the criteria in s 4AA of the Family Law Act 1975 (Cth) is not met – a declaration of no de facto relationship is made under s 90RD – application dismissed.

PRACTICE AND PROCEDURE – Where the respondent filed proceedings in the Supreme Court dealing with a commercial dispute involving the parties – where the applicant asserts the parties were in a de facto relationship – where a judge of the Supreme Court transferred proceedings to the Family Court of Australia – no jurisdiction is established where no de facto relationship existed – matter is transferred back to the Supreme Court of New South Wales.

Legislation:

 Family Law Act 1975 (Cth) ss 4AA, 90RD;

Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s.5(1)(b)
Cases cited:  Nord & Van (2018) FLC 93-833
Division: Division 1 First Instance
Number of paragraphs: 116
Date of hearing: 28 November – 1 December 2022
Place: Sydney
Solicitor for the Applicant: Mr Hall, Trevor Hall Partners
Counsel for the Respondent: Mr Kearney, SC
Solicitor for the Respondent: Lander & Rogers

ORDERS

SYC 3428 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR BERRELL

Applicant
AND:

MR TILY

Respondent

order made by:

CHRISTIE J

DATE OF ORDER:

24 January 2023

THE COURT ORDERS THAT:

1.Pursuant to s 90RD of the Family Law Act 1975 (Cth) it is declared that a de facto relationship never existed between Mr Berrell (“the applicant”) and Mr Tily (“the respondent”).

2.The whole of these proceedings be transferred to the Supreme Court of New South Wales under the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 5(1)(b).

3.The Initiating Application filed by the applicant on 10 September 2018 is otherwise hereby 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).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Berrell…

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AGLC
Berrell & Tily (No 3) [2023] FedCFamC1F 14
Case
[2023] FedCFamC1F 14
Decision Date

CaseChat Overview and Summary

The case of Berrell & Tily (No 3) involved a dispute between the parties regarding whether they were in a de facto relationship. This issue was brought before the court to determine if the existence of such a relationship would affect the court's jurisdiction over subsequent proceedings in the Supreme Court of New South Wales. The court was tasked with deciding whether the evidence presented supported the claim of a de facto relationship and if so, what implications this had for the jurisdiction over the property adjustment claim and the Supreme Court matter. The court also considered the credibility of the evidence provided by Mr Berrell, including his previous sworn statements and any contradictions or exaggerations in his testimony.

The primary legal issue before the court was whether the facts presented constituted a de facto relationship under the Family Law Act 1975 (Cth). The court had to consider various factors, including the duration of the relationship, the nature and extent of their common residence, the degree of financial dependence or interdependence, the ownership and use of their property, the degree of mutual commitment, and the reputation and public aspects of the relationship. The court had to assess these factors holistically, taking into account the composite picture rather than isolating individual elements.

The court found that the evidence did not support the claim of a de facto relationship. Key uncontested facts, such as the ongoing relationships both parties had with other individuals during the period in question, contradicted the notion of a mutual commitment to a shared life. Furthermore, Mr Berrell's credibility was undermined by inconsistencies in his evidence and previous sworn statements. Based on this assessment, the court declared that no de facto relationship existed between the parties. Consequently, the court determined it lacked jurisdiction to hear and determine the property adjustment claim and the Supreme Court matter, leading to the dismissal of Mr Berrell's application.

In conclusion, the court made a declaration that the parties were not in a de facto relationship and returned the proceedings to the Supreme Court for want of accrued jurisdiction. This decision was based on the court's finding that the evidence did not support the existence of a de facto relationship and that the jurisdictional issue was contingent on the determination of this relationship.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Mr Berrell’s case was explicitly (if his evidence were to be accepted) that both he and Mr Tily were in relationships with other women during the period of their asserted relationship and that this was not inconsistent with the two of them being in a de facto relationship. In a theoretical sense I accept that a person may be in two (or indeed more) relationships at the same time. However, turning to the facts of this case, I cannot reconcile the following uncontested facts with these parties having a mutual commitment to shared life together, such that I would regard them as a couple living together on a genuine domestic basis:(a)Mr Berrell was married to and living with his wife in mid-2007 when he said the de facto relationship commenced (exhibit 35). In early 2008 when he returned from a trip to Country RR he completed his incoming passenger card with his intended address: GG Street, Suburb HH (his matrimonial home) and nominated his wife as his emergency contact. In late 2008 when returning from Country SS he nominated the GG Street property as his intended address and left the emergency contact blank. In mid‑2011 Mr Tily emailed Mr Berrell suggesting (inferentially) that she was sleeping with someone other than her husband. This does not sit well with Mr Berrell’s insistence that his relationship with his wife had ended. In mid-2011 when returning from Country TT he completed his incoming passenger card with his intended address: GG Street, Suburb HH and nominated his wife as his emergency contact. Mr Berrell represented to the ATO that he remained in a relationship with his wife in the tax year ended 30 June 2012;(b)Mr Tily was dating Ms KK at the time Mr Berrell suggests the de facto relationship commenced and she subsequently moved into and shared a home and a bedroom with Mr Tily from early 2009 to early 2012;(c)After separation from Ms KK, Mr Tily formed another relationship with Ms V in 2012 and she subsequently resided with him in the home of his sister in Suburb CC. Mr Berrell acknowledged, in cross-examination, Ms V was Mr Tily’s girlfriend. Following the conclusion of his relationship with Ms V, Mr Tily formed a relationship with Ms W who moved into his unit in Country L in 2014; and(d)Mr Berrell was in a relationship with Ms MM in the first half of 2012. Mr Berrell arranged a visa which permitted Ms MM to travel to Australia from Country L to spend time with him in Australia. While Mr Berrell tried to minimise the significance of this relationship as being primarily a sexual relationship, his evidence was that he had arranged her visa, they had had a sexual relationship, they had travelled within Australia and he intended that she was to assist with unpaid care of his elderly parents.Mr Berrell’s evidence It was difficult to accept Mr Berrell’s evidence in respect of any contested issues of fact for the following reasons:(a)Mr Berrell was repeatedly taken to his previous sworn evidence and asked whether or not it was true. On multiple occasions he said he did not remember having given the evidence. An example concerned Mr Tily’s girlfriend, Ms V. Mr Berrell agreed in cross-examination that she had been Mr Tily’s girlfriend but was then taken to his affidavit where he had stated that they were not in a relationship and Mr Tily had paid Ms V for her services. Mr Berrell said he did not recall giving that evidence.(b)Mr Berrell accepted he had exaggerated some aspects of his evidence such as the suggestion that he and Mr Tily had opened a business together in UU Town Mr Berrell told the Court on oath that his relationship with Mr Tily was over before Mr Tily started dating Ms V and Ms W. In cross-examination he said that evidence was wrong.The statutory declaration

Decision

Reasons for decision

I have not ignored Mr Berrell’s contention that the relationship was covert so as not to attract the condemnation of Mr Tily’s family. I accept that a couple may not wish to be known as a couple for fear of rejection or approbation or the like. This would not explain why Mr Berrell and Mr Tily did not appear to have the reputation and public aspects of a de facto relationship in Country L (where Mr Berrell said they had moved because “our homosexual lifestyle was more acceptable there”).CONCLUSION All the evidence is consistent with the assertion of a de facto relationship being a construct of Mr Berrell after the parties’ friendship and financial relationship had ended. I am satisfied that it is appropriate to make the declaration sought by Mr Tily that the parties were not in a de facto relationship and return the proceedings to the Supreme Court for want of accrued jurisdiction. In closing submissions Mr Hall, solicitor for Mr Berrell, said:We simply say that the orders that we ask for are the natural consequence of the respondent’s evidence and it will either happen or it will happen before the Supreme Court of New South Wales and that’s where it is destined. (Transcript of 1 December 2022, p. 428 lines 44 – 47.)…We say that there is no ongoing issue raised by us of relationship between the parties because even if there was one, it’s not a matter that we press in terms of the relief that we would claim in opposition to my friend’s amended statement of claim in the Supreme Court of New South Wales and that this application was defensive in nature. …What we say here is that the allegation of a de facto relationship is raised as part of a defence to proceedings that were initiated not at my client’s choosing. He wasn’t the instigator. That’s what we mean by defensive in nature. (Transcript of 1 December 2022, p. 429, lines 1-5 and lines 29 – 31.) This submission seems to support the conclusion that Mr Berrell’s application to this Court was a cynical attempt to assist him in collateral proceedings. That is supported by his late withdrawal of his own application for a declaration. That raises the question of the additional relief contained in Mr Berrell’s Amended Minute of Order filed in court on the final day of the trial. Mr Berrell asked this Court for orders including winding up the partnership in respect of M Pty Ltd, appointing a liquidator and taking accounts of the company. As a consequence of hearing and determining the threshold jurisdictional issue and determining it, by the making of a declaration that there was no de facto relationship, I no longer have jurisdiction to hear and determine the partnership dispute. I accept that if I had made a declaration that the parties were in a relationship then I may have had accrued jurisdiction to hear and determine both a property adjustment claim and the Supreme Court proceedings provided I accepted there was a common substratum of facts. Given the declaration which I have made I do not have jurisdiction to hear the matter further.

Ratio Decidendi

Legal Principle Established

The only issue before this Court on a final basis was whether the parties were in a de facto relationship since it would flow from that determination that either:(a)If they were in a de facto relationship the Court would have jurisdiction to consider both the Supreme Court matter and what property adjustment orders (if any should be made); or(b)If they were not in a de facto relationship the Court would have no jurisdiction to determine property adjustment and accordingly the issue of accrued jurisdiction to determine the Supreme Court matter would not arise.CONSIDERATION Section 4AA(1) of the Family Law Act 1975 (Cth) (“the Act”) states that 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; 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. The Court may declare that a de facto relationship existed, or never existed, between two persons: s 90RD(1) of the Act. When making this declaration, the Court may also declare the period, or periods, of the de facto relationship and when the de facto relationship ended: s 90RD(2) of the Act. To determine whether two people are, or were, in a de facto relationship, the Court may take into account the following under s 4AA(2) of the Act:(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. In addition, subsections 3 and 4 should also be considered in this context:(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. In Nord & Van (2018) FLC 93-833 the Full Court of the Family Court of Australia (as it was then known) cited Lynam v Director-General of Social Security (1983) 52 ALR 128 at [24]:131. Each element of a relationship draws its colour and its significance from the other elements, some of which may point at 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… it will be a question of fact and degree… whether a relationship between two unrelated persons … meets the statutory test.