Cadman & Hallett - [2014] FamCAFC 142

FAMILY COURT OF AUSTRALIA

CADMAN & HALLETT

[2014] FamCAFC 142

FAMILY LAW – APPEAL – DE FACTO RELATIONSHIP – Where the trial judge declared that a de facto relationship existed between the parties – Where an application for summary dismissal of the application was before the trial judge - Where the issue before the trial judge was when the de facto relationship ended – Where the appellant submitted that the trial judge had erred finding that the relationship ended in mid-2010 – Where the ground of appeal misstates the trial judge’s finding – Where no error demonstrated – Where the appellant relied on a single factor in the determination of whether a de facto relationship existed pursuant to s 4AA of the Family Law Act 1975 (Cth) – Where the trial judge referred to the circumstances and gave appropriate weight to those circumstances – Where it was further submitted that the respondent, in attempting to arrange a “sham” marriage for the purposes of staying overseas, should compel a finding that an intention had been conveyed to the appellant to end the relationship – Where this would not necessarily be inconsistent with a de facto relationship continuing - Where no error demonstrated – Appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Where the appeal was wholly unsuccessful – Where the appellant sought an order for costs - Where a costs order was not opposed by the respondent – Costs order made in favour of the respondent.

Family Law Act 1975 (Cth) ss 4AA, 44(5), 90RD

Jonah v White (2011) 45 Fam LR 460
Jonah v White (2012) FLC 93-522
Lynam v Director-General of Social Security (1983) 52 ALR 128
Sinclair & Whittaker (2013) FLC 93-551

APPELLANT:

Mr Cadman
by his Case Guardian Ms C

RESPONDENT:

Mr Hallett

FILE NUMBER:

SYC

4542

2012

APPEAL NUMBER:

167

2013

DATE DELIVERED:

11 August 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Strickland, Ainslie-Wallace & Aldridge JJ

HEARING DATE:

19 June 2014

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

18 October 2013

LOWER COURT MNC:

[2013] FamCA 819

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Thomas

SOLICITOR FOR THE APPELLANT:

Harris & Co

COUNSEL FOR THE RESPONDENT:

Ms Obrart

SOLICITOR FOR THE RESPONDENT:

G & D Lawyers

Orders

The appeal be dismissed.
The appellant pay the respondent’s costs of and incidental to the appeal as agreed and in default of agreement, as assessed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cadman & Hallett has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 167 of 2013
File Number: SYC 4542 of 2012

Mr Cadman

by his Case Guardian Ms C

Appellant

and

Mr Hallett

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

Mr Cadman by his Case Guardian, appeals against Orders made by Rees J given on 18 October 2013 in proceedings between him and Mr Hallett. Mr Cadman is suffering from dementia and his condition is such that it was considered he would be unable properly to respond to the application, thus his sister, Ms C, was appointed Case Guardian.
The proceedings before her Honour were for summary dismissal of the application brought by Mr Hallett. Her Honour ordered the application for summary dismissal be dismissed and declared that pursuant to s 90RD of the Family Law Act 1975 (Cth) (“the Act”) a de facto relationship existed between Mr Hallett and Mr Cadman as at 1 March 2009. The existence of the de facto relationship and whether or not the application had been made within the two year limitation period after the end of the de facto relationship, as provided for in s 44(5) of the Act, were the only issues before her Honour.
Mr Cadman did not give any evidence in reply to the evidence which Mr Hallett had put before the Court. The Case Guardian gave evidence of the facts as she knew them which was generally consistent with the evidence of Mr Hallett. Thus, the evidence before her Honour was largely uncontradicted. In addition to the evidence of Mr Hallett the trial judge had the benefit of many emails and letters that passed between Mr Cadman and Mr Hallett over many years. Much of what was asserted by Mr Hallett was supported by these emails.
The definition of “de facto relationship” is found in s 4AA of the Act which provides as follows:

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.
(5) For the purposes of this Act:
(a) a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and
(b) a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.

Section 44(5) of the Act provides for the initiation of proceedings by a party to a de facto relationship as follows:
(5) Subject to subsection (6), a party to a de facto relationship may apply for:
(a) an order under section 90SE, 90SG or 90SM; or
(b) a declaration under section 90SL;
only if the application is made within the period of 2 years after the end of the de facto relationship…

BACKGROUND

At the time of the hearing Mr Cadman was 70 years old and Mr Hallett 47 years old. Mr Cadman is an artist.
The parties met in 1991. It was not in dispute that from 1991 until 2000 they lived together in a de facto relationship.
In August 1991 they commenced to live together in a house owned by Mr Cadman in Sydney sharing their domestic duties and engaging in a sexual relationship. Each occupied separate bedrooms.
In late 1994 Mr Cadman bought a small cottage in Town N, a village on the South Coast of NSW, and in February 1995 the parties moved to live in that house. They renovated the property. They became friendly with many of the neighbours in Town N and socialised with the neighbours as a couple. As he had done previously, Mr Cadman continued to pay the expenses of the household and provided spending money for Mr Hallett.
At some stage in 1995 Mr Hallett started studying at the R School. He completed his studies there in 1998.
On 18 January 2000 Mr Hallett travelled to the United States to consider studying art there. He returned to Town N on 18 April 2000. The parties did not resume their sexual relationship but were physically affectionate to each other. At the end of 2000 Mr Hallett travelled to the United States to enrol in a two week course which he enjoyed so much that he enrolled for a whole semester. He returned to Town N on 25 June 2001. During that time the parties communicated by telephone between three to five times per week. Mr Hallett had sexual relationships with other people in the United States and discussed those with Mr Cadman.
On his return to Town N Mr Cadman gave Mr Hallett a car and they continued to live together there as they had done previously. A year later, in June 2002, Mr Hallett returned to the United States to study. Mr Cadman travelled to the United States and spent three weeks with Mr Hallett during Christmas of that year.
In May 2003 Mr Hallett returned to Town N and the previous life with Mr Cadman resumed. Not long after his return, in August 2003, Mr Cadman started to build a studio in the garden for the use of Mr Hallett. In February 2004 Mr Hallett returned to the United States for another semester of study. Mr Cadman travelled with him and stayed for about a fortnight. Mr Cadman continued to support Mr Hallett. Mr Hallett returned to Town N in October 2004. On his return, Mr Cadman bought him another car and the relationship continued as before.
In April 2006 Mr Hallett was accepted into a Masters Program at the Y School. He was financially sponsored by Mr Cadman. Mr Hallett left for the United States on 30 May 2006. In April 2008 he had an art exhibition in the United States and Mr Cadman travelled to the United States and stayed with Mr Hallett in his apartment. At that time Mr Cadman said to Mr Hallett “when are you coming home?”.
In response, Mr Hallett said: “Well I finish in June, I have to finish the course after all this. I want to see if I can put on an exhibition once the course finishes. But after that I’m coming home, I’m looking forward so much to it”.
The parties experienced some difficulties in their relationship in the last half of 2008. On 5 November 2008 Mr Cadman sent Mr Hallett an email which included the following:
Do you seriously want to end our long relationship of love and tenderness and concern and sharing and support for one another, occasionally imperfect though it might have been, bang, like this? after almost twenty years?
Mr Hallett returned to Australia at the end of November 2008. Mr Cadman was, at that stage, in hospital. After Mr Cadman was discharged from hospital, Mr Hallett, with the assistance of the Case Guardian, cared for him.
The parties had a joint exhibition at Town N School in January 2009. They dined out together and with neighbours. In 2009 Mr Hallett was offered an exhibition in the United States. Mr Cadman encouraged him to accept and Mr Hallett left for the United States on 28 January 2009. In July 2009 Mr Cadman sent Mr Hallett $5,000.
Mr Hallett returned to Town N on 13 November 2009 and continued to live in the house at Town N with Mr Cadman as they had before. They continued to be physically affectionate to one another. On 29 January 2010 Mr Hallett again left for the United States.
There were some relationship difficulties in early 2010 as evinced by the email correspondence between them.
On 20 July 2010 Mr Cadman revoked his will which left a life interest to Mr Hallett and made a new will leaving only a bequest of $20,000 to him. The life interest that had previously been bequeathed entitled Mr Hallett to live in the neighbouring property at Town N and to receive income from investments for his life. Three months later on 20 October 2010, Mr Cadman sent an email to Mr Hallett saying “[l]iving with me in Town N is not right or an option”.
The issue before the trial judge was when the relationship between the parties ended. For Mr Cadman, it was contended that the relationship ended in January 2000. For Mr Hallett it was argued that the relationship ended in October 2010.
THE TRIAL JUDGE’S REASONS
Her Honour, after referring to the history of the parties’ relationship, turned to s 4AA(2) of the Act in order to determine whether the parties were at any particular time, living together on a genuine domestic basis [25]. Her Honour identified the issue for her determination as “when did the relationship end?” [27].
Her Honour considered the nature and extent of the parties’ common residence as summarised above. Her Honour took into account that originally a sexual relationship had existed between the parties. As recorded above, it ceased at some time in 2000 following a decision by Mr Cadman to be celibate. A sexual relationship was not resumed between them but they remained physically affectionate. Mr Hallett had sexual relations with other people in the United States but informed Mr Cadman of them.
Her Honour found that Mr Cadman had the means to, and did, in fact, support Mr Hallett financially, providing Mr Hallett with cars and cash from time to time. Her Honour took into account that while staying at Sydney and then at Town N, Mr Cadman acquired property for the use of him and Mr Hallett.
There were many emails between the parties in evidence before her Honour and she considered that those emails demonstrated clearly their commitment to each other and their shared life. The emails continued to show this commitment notwithstanding the time that Mr Hallett spent in the United States and indicated that, although they were physically living apart at those times, they each considered the relationship to be continuing, and continuing in the same way that it had before the trips to the United States commenced save and except as to a sexual relationship. It was not until October 2010 that the content of the emails took a different turn.
In considering the issue for determination, her Honour referred to evidence produced on behalf of Mr Cadman, from Mr F. Mr F said that in about mid 2009, in a conversation with Mr Cadman, Mr Cadman described Mr Hallett as “my ex who lives in the United States”. Mr Cadman then discussed Mr Hallett’s attempts to obtain a “green card” because his visa to remain in America had expired. Her Honour then said:
70. …There had been no communication by Mr [Cadman] to Mr [Hallett] that he, Mr [Cadman], considered Mr [Hallett] to be his ex-partner.
71. Mr [Hallett] returned to [Town N] on 13 November 2009. Mr [Cadman] met him at the airport and they drove to [Town N] where Mr [Hallett] settled into his old room.
72. By this time, Mr [Cadman] had said nothing to Mr [Hallett] to indicate that, in his view, their relationship was not continuing.
Her Honour considered the emails and letters passing between the parties to be a better indicator of their understanding of the nature of their relationship than the perception of third parties. In the context of the other evidence and especially the emails, her Honour did not give this evidence significant weight.
Her Honour then considered the authorities dealing with the issue of when a relationship ends or breaks down and concluded:
133. The Full Court stressed the importance of the necessity of one party communicating to the other his intention to end the relationship.
134. Thus the authorities establish that in order to establish that a relationship has “broken down” for the purpose of the legislation, it is necessary that one party forms an intention to end the relationship, that the party acts upon the intention and that the intention is communicated to the other party.
135. In the circumstances of the present case, it is not clear when Mr [Cadman] formed the intention to end his relationship with Mr [Hallett]. There is no evidence that he had either formed the relevant intention or communicated it to Mr [Hallett] in January 2000 which is the date relied upon by the Case Guardian. There is no evidence that he had either formed the intention or acted upon it before 1 March 2009 which is the relevant date for the accrual of jurisdiction. I am satisfied that the evidence establishes that Mr [Cadman] formed the intention to end the relationship in mid-2010 when he changed his will and I am in no doubt that he communicated his intention to Mr [Hallett] in his emails in October 2010 to which reference has been made earlier.

GROUNDS OF APPEAL

There are five grounds of appeal. Ground 1 was abandoned during the course of argument.
Her Honour’s findings as to the principles to be applied were not challenged in this appeal (ground 1) and save for the ground of appeal asserting a failure to balance one piece of hearsay evidence against another, which was sensibly withdrawn, there was no challenge to the trial judge's findings of fact or her articulation of the law.
It will be convenient to deal with the grounds in the order in which they were argued.

Ground 5

That her honour erred in law having found that the relationship between the parties ended in mid 2010 and making the declaration pursuant to section 90RD upon an Application which was statute barred having been filed on 1 August 2012.

We repeat, her Honour found:
135. In the circumstances of the present case, it is not clear when
Mr [Cadman] formed the intention to end his relationship with
Mr [Hallett]. There is no evidence that he had either formed the relevant intention or communicated it to Mr [Hallett] in January 2000 which is the date relied upon by the Case Guardian. There is no evidence that he had either formed the intention or acted upon it before 1 March 2009 which is the relevant date for the accrual of jurisdiction. I am satisfied that the evidence establishes that
Mr [Cadman] formed the intention to end the relationship in mid-2010 when he changed his will and I am in no doubt that he communicated his intention to Mr [Hallett] in his emails in October 2010 to which reference has been made earlier.
It can immediately be seen that this ground of appeal misstates her Honour’s findings.
There was no finding that “the relationship between the parties ended in

mid-2010”.
There was a finding that Mr Cadman formed an intention to end the relationship in July 2010 but that the relationship in fact ended when he communicated that intention to Mr Hallett in October 2010.
Thus the proceedings were commenced within two years after the end of the de facto relationship (s 44(5) of the Act) as found by her Honour.
This ground is not made out.

Ground ₂

That her Honour erred at law in the jurisdictional fact finding exercise in that her Honour failed to determine that on 1 March 2009 whether the parties had achieved a practical union of both lives and property such as to constitute them living together as a couple on a genuine domestic basis.

The ground of appeal does not follow the wording of s 4AA of the Act.
The written submissions in support of this ground state:
It is submitted that her Honour failed to determine as at 1 March 2009 the parties had so merged their lives that they were, for all practical purposes, living together as a couple on a genuine domestic basis.
(Emphasis added)
The phrases used in both the ground and the written submissions seem to have been taken from Jonah v White (2011) 45 Fam LR 460 at [60] and [66].
In dismissing the appeal from that decision, the Full Court in Jonah v White (2012) FLC 93-522 did not adopt that expression which had been used by the trial judge but rather at [32] and [33] said:
32. It is immediately apparent that the touchstone for the determination of whether a de facto relationship exists is the finding that the parties to it are a “couple living together on a genuine domestic basis”.
33. The Court may consider the matters to which the following subsections refer in determining that seminal question posed by s 4AA(1)(c). We accept the submission that none of the matters referred to in the section has precedence over any other, nor must all necessarily be found before a finding of a de facto relationship is made.

In Sinclair & Whittaker (2013) FLC 93-551, after referring to both the first instance decision and the decision of the Full Court in Jonah v White (supra) at [94] to [96] the Full Court said:
94. Comments made in the course of discussing facts are not to be elevated to the status of the provisions of the statute or substituted for the statutory test. This is because, taken on their own, they either add nothing to the statutory test or, if they do, they are adding an impermissible gloss. Thus it is not appropriate to consider the facts other than in the light of the statutory test.
95. It is also to be remembered, perhaps making the task of a trial Judge applying s 4AA more difficult, that the nature of relationships and commitments for both married and unmarried couples find expression in many different domestic arrangements. The application of the statutory criteria to reach a conclusion must be done judicially. It is difficult, absent error, for an appeal court to interfere, even if it would not itself have reached that conclusion.
96. Each of the matters raised by these grounds was taken into account by the trial Judge. Any attempt to regard any particular factor as determinative or having particular importance is contrary to the approach to be taken as identified in Lynam v Director-General (supra).
It is apparent that Mr Cadman has fallen into the trap eschewed by the Full Court in Sinclair & Whittaker. The ground and this submission all rely upon only part of the definition of a de facto relationship, which for convenience we will restate, emphasising the part omitted:
Having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
In support of this submission Mr Cadman relied upon Mr Hallett’s sexual relationships with other persons in the United States and what were said to be admissions by Mr Hallett in the course of his cross-examination. An example of the admissions sought to be relied upon is the following:
MR JOHNSTON: … And is it your case that you did not live with Mr [Cadman] as a couple together on a genuine domestic basis between January 2009 to November 2009?‑‑‑Correct.
(Transcript, 17 September 2013, page 110, line 31-32)
That, of course, was a period when Mr Hallett was residing in the United States so he was not, in a literal sense, living with Mr Cadman.
The question is, in any event, unhelpful and improper. It purports to put to Mr Hallett, albeit in incorrect terms, a conclusion of law. It is for the trial judge, and not a witness, to determine the nature of the relationship at any point and in doing so will consider all the relevant matters raised by s 4AA(2) of the Act. The answer thus has no probative value.
It can also be seen that this question repeats the error identified above.
In Sinclair & Whittaker the Full Court approved the following passage from Lynam v Director General of Social Security (1983) 52 ALR 128 where Fitzgerald J at page 131 said:
… Each element of a relationship that 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. The endless scope for differences in human attitude and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.
Having regard to those principles no error has been shown.
Indeed, the reliance by counsel on just one part of the definition of a de facto relationship is, of itself, likely to be productive of error.
Her Honour referred to the circumstances raised in the ground of appeal and gave them the weight she considered appropriate.
The second aspect of this ground seeks to assert that the trial judge was in error in failing to consider whether a de facto relationship existed as at 1 March 2009. Given that her Honour found that the relationship continued from well before this date until October 2010 this would have been a rather pointless exercise.
This ground has no merit.

Ground 3

That her Honour erred at law in the jurisdictional fact finding exercise in that her Honour failed to determine that the reason why the Respondent returned to Australia in December 2009 was that his American visa had expired and not that he returned to Australia to live with the Appellant as a couple on a genuine domestic basis.

It was put to Mr Hallett by counsel in cross-examination that the reason he left the United States in December 2009 was that he could not get a green card. His reply was:
… I would have loved to have got a green card. That would have made my life a lot easier.
(Transcript 17 September 2013, page 126, line 20-21)
It was then suggested to Mr Hallett that he had tried to arrange a sham marriage to an American citizen for the purpose of obtaining a green card so that he could stay in the United States.
His explanation for emails referring to that was that he had not been serious and that he had been joking.
The submission that was put to her Honour in relation to this evidence was:
MR JOHNSTON: … Mr [Hallett] wanted to stay in the United States; no doubt about it. Your Honour will find, contrary to what he says, that he did proposition [Ms E] to marry him, that there was a promise forthcoming from her - as evidenced in one of the emails in Exhibit 8 - and that she reneged on the promise - they’re his words.
(Transcript 17 September 2013, page 163, line 33 - 36)
It was argued on appeal that this evidence demonstrated that the aim of Mr Hallett was to marry, which would lead him to obtaining a green card, which would in turn entitle him to live permanently in the United States. This, it was said, would compel a finding, that in trying to arrange the marriage, Mr Hallett had formed an intention to end the relationship.
The entry into a sham marriage for the obtaining of a right to live permanently in the United States is not necessarily inconsistent with a continuing relationship with Mr Cadman. Further, the steps do not necessarily each flow from the other. Even if the intention was formed there is no evidence it had been communicated to Mr Cadman.
As to the argument that her Honour failed to determine this issue, it was because no submission to that effect was put to her, a fact acknowledged by counsel for Mr Cadman on the appeal.
Finally, we consider this to be an impermissible attempt to focus on a particular and very minor issue as if it were determinative of the entire appeal.
There is no merit in this ground.

Ground 4

That her Honour erred at law in the jurisdictional fact finding exercise in finding against the weight of the evidence that the relationship between the parties ended in mid-2010.

In support of this ground counsel for Mr Cadman relied upon grounds 2 and 3. As they have each failed they do not support this ground. The written submissions then refer to some aspects of Mr Hallett’s return to Australia in November 2009 and his leaving for the United States in January 2010.
It was not suggested that her Honour did not take those matters into account. Reference to those matters alone does not compel a finding that the relationship ended in January 2010.
There was ample material available to support the finding made by the trial judge.
It follows that there is no merit in this ground.

CONCLUSION

We have found no merit in any of the grounds of appeal pursued by Mr Cadman, and accordingly the appeal must be dismissed.

COSTS

At the conclusion of the hearing we sought submissions from the parties as to costs depending on the result of the appeal.
In the event that the appeal was unsuccessful, counsel for Mr Hallett sought an order for costs. Counsel for Mr Cadman sensibly conceded that if the appeal failed he could not resist an order for costs.
In the circumstances, we propose to make an order for costs in favour of Mr Hallett.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Ainslie-Wallace & Aldridge JJ) delivered on 11 August 2014.

Associate:

Date: 11 August 2014