Chin & Bao
[2025] FedCFamC1A 9
•4 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Chin & Bao [2025] FedCFamC1A 9
Appeal from: Chin & Bao [2024] FedCFamC2F 984 Appeal number: NAA 215 of 2024 File number: SYC 1198 of 2019 Judgment of: CAMPTON J Date of judgment: 4 February 2025 Catchwords: FAMILY LAW – APPEAL – DE FACTO RELATIONSHIP – Where the appellant contends that the parties were in a de facto relationship for over three years Where the respondent’s case was that the parties were never in a de facto relationship, that they were engaged in a personal relationship, and thereafter were friends and business partners – Where the primary judge determined that the appellant had not established that the parties were in a de facto relationship so as to enliven jurisdiction to consider the adjustment of property pursuant to s 90SM of the Family Law Act 1975 (Cth) and dismissed the appellant’s application – Where there was no error in the approach taken by the primary judge in assessing the parties’ and witnesses credibility – Where the appellant contended that the primary judge failed to grapple with the central controversies in dispute by way of failing to “properly evaluate” the evidence – Where there was no error in the primary judge’s evaluation of the evidence – Appeal dismissed – Appellant to pay the respondent’s costs of the appeal. Legislation: Family Law Act 1975 (Cth) ss 4AA, 90RD, 90SM
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Sch 3, r 13.23
Cases cited: AIS v AMF (1999) 199 CLR 160; [1999] HCA 26
Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Cizek & Mihov (2024) FLC 94-206; [2024] FedCFamC1A 151
Coal & Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194; [2000] HCA 47
Colburn & Cleese (2022) FLC 94-105; [2022] FedCFamC1A 147
Curtis v Curtis [2024] NSWCA 136
De Winter and De Winter (1979) FLC 90-605
Deodes & Deodes and Ors (2019) FLC 93-905; [2019] FamCAFC 97
DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635; [2023] HCA 32
House v The King (1936) 55 CLR 499; [1936] HCA 40
Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Lennon & Sanil (2020) FLC 93-962; [2020] FamCAFC 109
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Rafferty & Spencer (2016) FLC 93-710; [2016] FamCAFC 97
Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasinghan (2000) 168 ALR 407[ [2000] HCA 1
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 160 ALR 588; [1999] HCA 3
Vetter v Lake Macquarie City Council (2001) 202 CLR 439; [2001] HCA 12
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Yarrow & Yarrow [2022] FedCFamC1A 135
Yoxall & Eide [2024] FedCFamC1A 200
Number of paragraphs: 81 Date of hearing: 16 December 2024 Place: Sydney Counsel for the Appellant: Mr Morahan Solicitor for the Appellant: Chen Shan Lawyers Counsel for the Respondent: Mr Dura SC Solicitor for the Respondent: Unified Lawyers ORDERS
NAA 215 of 2024
SYC 1198 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR CHIN
Appellant
AND: MS BAO
Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
4 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.Within 28 days of the date of these orders, the appellant pay the respondent’s costs fixed in the sum of $27,996.
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 Chin & Bao has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J:
By way of a Notice of Appeal filed on 23 August 2024, Mr Chin (“the appellant”) appeals from orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 26 July 2024 as follows:
1. The Initiating Application filed by the Applicant on 27 February 2019 is dismissed.
2. All extant applications be otherwise dismissed.
The Initiating Application was dismissed upon a threshold determination pursuant to s 90RD of the Family Law Act 1975 (Cth) (“the Act”) that the appellant had not established that he and Ms Bao (“the respondent”) were in a de facto relationship within the meaning of s 4AA of the Act so as to enliven jurisdiction to make orders adjusting property pursuant to s 90SM of the Act.
It was the appellant’s case that a de facto relationship between he and the respondent commenced in December 2013 and terminated in February 2017. It was the respondent’s case that she and the appellant were never in a de facto relationship, that they were instead engaged in a personal relationship from October 2013 to mid-2014, and thereafter were friends and business partners before their friendship ended in February 2017.
The respondent opposes the appeal.
For the reasons that follow the appeal is dismissed.
BACKGROUND
The hearing before the primary judge occurred over eight days, on 11, 12, 26, and 27 August 2021, 29 and 30 September 2021, 1 October 2021, and 12 November 2021. Written submissions were filed on 31 May 2022 and 27 June 2022.
It is unfortunate that the reasons for judgment were delivered, and orders made, more than two years after the filing of final written submissions. That said, no ground of appeal was directed to that significant efflux of time.
The primary judge found:
164 As the authorities indicate, it is not necessary to find that the parties shared a common residence in any particular time for the Court to find that the parties had a relationship as a couple living together on a genuine domestic basis and so were in a de facto relationship, but I accept [counsel for the respondent’s] submission that in the absence of a finding that the parties did share a common residence, there must certainly be sufficient evidence of some circumstance or circumstances of their relationship that shows that such was a relationship as a couple living together on a genuine domestic basis, whilst bearing in mind that no particular finding in relation to any circumstance is a necessary component of a finding of a de facto relationship.
165 The circumstances set out in subsection 4AA(2) are matters to be considered on the evidence and, where possible, relevant findings made. I am not satisfied that the parties at any time shared a common residence. I’m not satisfied that a sexual relationship existed between the parties beyond mid-2014. I find that there was no financial dependence or interdependence between the parties or any arrangements between them for financial support of one by the other.
166 The parties acquired one property jointly, the [Suburb F] property, and I find that the circumstances surrounding that purchase tend towards a finding of a failed joint venture where one party was left “holding the bag” due to the others party’s failure to live up to the bargain, as opposed to it being a circumstance tending to show a commitment to a shared life or any other circumstance tending to identifying a relationship of the parties as a couple living together on a genuine domestic basis.
167 I do not find that the whole of the evidence demonstrates on the part of either party such a degree of commitment to a shared life that it could be found to be a mutual commitment to a shared life. I also find that there is insufficient evidence of the parties having a reputation amongst family, friends or the public generally of the reputation being as a couple living together on a genuine domestic basis, a de facto relationship.
168 The standard of proof required is the civil standard of the balance of probabilities – section 140 of the Evidence Act 1995 (Cth). The parties were at no time legally married to each other and they are not related by family. I am unable to find on the balance of probabilities that these parties were at any time in a relationship as a couple living together on a genuine domestic basis.
169 Accordingly, the proper Order to be made is an Order dismissing the Initiating Application of the [appellant] filed 27 February 2019 on the basis that the Court is without jurisdiction to consider an alteration of interest in the property of the parties or either of them under section 90SM of the Family Law Act 1975 (Cth).
(Emphasis added)
THE APPEAL
It is uncontroversial that:
(a)The primary judge correctly identified and applied the legal framework by way of the legislation and relevant principle to the s 90RD threshold determination (at [22]–[25]).
(b)The reasons record each relevant category of indicia identified in s 4AA(2) of the Act.
(c)The appealed judgment is an evaluative factual determination (Colburn & Cleese (2022) FLC 94-105 at [32]; Lennon & Sanil (2020) FLC 93-962). The question of whether a de facto relationship ever existed between the parties is capable of only one correct answer and the choice is binary: either yes or no (Cizek & Mihov (2024) FLC 94-206 (“Cizek & Mihov”) at [86]).
(d)Being an evaluative judgment, this appeal is governed by the “correctness” standard, rather than by the principles in House v The King (1936) 55 CLR 499 (“House v The King”) (GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635 at [15]–[17] and [22]–[26]).
The purpose of a Notice of Appeal is to identify with precision where error is found in a judgment under appeal, whether it be an error of law, fact, or general principle. The appellant encountered challenges in achieving this obligation. No application was made to amend the Notice of Appeal.
The appellant’s Summary of Argument was constructed in a narrative style without reference to a single ground of appeal. It did not comply with r 13.23(2)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). The rule requires that a Summary of Argument must:
set out each ground of appeal and, for each ground of appeal, a statement of the arguments setting out the points of law or fact and the authorities relied on (together with references to the relevant pages of the appeal book and transcript) …
The Summary of Argument identified four references to the 169 paragraphs of the judgment under appeal, four references to the 1043-page Appeal Book, and one reference to the 694-page transcript, failing to link the grounds of appeal, as constructed, to a conclusion that the order which is the subject of the appeal was erroneous.
It is of no benefit for an appellant to simply re-run the case at first instance. An appeal is not an original hearing, but rather a structured analysis of whether the primary judge fell into appealable error. In any appeal conducted by way of a re-hearing, as this is, the demonstration of error by the primary judge is an indispensable condition to the success of the appeal (Allesch v Maunz (2000) 203 CLR 172 at 179–181 and 187; Coal & Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at 204 and 223–225).
Ground 1 – “The primary judge erred in law in failing to evaluate or failing properly to evaluate the proven indicia of the parties’ de facto relationship.”
A contended error can either be a failure to evaluate evidence or a failure to properly evaluate evidence. It cannot be both. At the hearing of the appeal the appellant said that this ground was a contention as to “failing properly to evaluate”, as opposed to failing to evaluate.
The ground, by way of its construction, is either:
(a)Incompetent, in that neither it, nor the Summary of Argument, identified with precision the factual contentions relevant to the outcome of the proceedings said to be the subject of appellate error; or
(b)A complaint of the character identified in the last limb of House v The King, being that the outcome was wholly unreasonable or plainly unjust such that a substantial wrong has in fact occurred. The latter is not available in an evaluative determination applying the correctness standard where no appealable error can be implied when no other form of legal or factual error can be identified (Cizek & Mihov at [87]; Yoxall & Eide [2024] FedCFamC1A 200 (“Yoxall & Eide”) at [53]).
The ground did not particularise any specific legal or factual error. Ground 1 fails.
Ground 2 – “The primary judge erred in ascribing to the [appellant] a lack of credibility because of the finding of the [primary] judge that the [appellant] was an unsatisfactory witness in his delivery of answers in cross examination.”
Given the divergence between the versions of some events as given by each party, the primary judge concluded, unsurprisingly, that an assessment of the credibility of each party was necessary to determine some aspects of the controversy. Credibility was a central plank of the appellant’s case. To give context to this ground, the reasons record:
33[Counsel] for the [appellant] submitted that the Respondent’s evidence was “replete with inconsistencies and … inherently unreliable” and that it should not be accepted unless corroborated by independent evidence. He submitted that during her cross-examination the Respondent was an unreliable witness, evasive and on occasions refusing to answer questions, and carefully advances that supported her case. Unfortunately, the description does not apply to the Respondent, but fully applies to the [appellant]. I find that the [appellant] was a most unsatisfactory witness, consistently evasive and consistently unresponsive in his answers to the point where he was warned repeatedly by me as to his duty as a witness to answer the question asked. Many of his unresponsive answers were statements of his case bearing no relation whatsoever to the question asked. My finding that the [appellant] was a most unsatisfactory witness is grounded in the transcript of his cross-examination at the following pages:
•Page 87 lines 20 to 47; page 93 lines 4 to 30; page 96 lines 3 to 40; page 98 lines 39 to 46; page 112 lines 9 to 22; page 115 line 33 to page 116 line 6 [Note that the transcript is incorrectly transcribed from the audio at page 116 line 3 – the word “not”, essential to the meaning of the question, is omitted, but clearly to be heard on the audio recording]; page 121 lines 12 to 15; page 128 lines 38 to 43; page 129 lines 29 to 40; page 131 lines 12 to 45; page 147 lines 9 to 14; page 148 lines 7 to 37; page 152 lines 10 to 24; page 156 lines 8 to 31; page 159 lines 7 to 24; page 166 lines 23 to 33; page 173 line 35 to page 174 line 19 (including a third warning from me relation to non-responsive answers); page 181 line 42 to page 182 line 10; page 194 lines 38 to 43; page 204 lines 7 to 30; page 219 lines 6 to 26; and page 223 line 44 to page 226 line 3 (including a fourth warning from me in relation to non-responsive answers).
34 Contrary to [counsel for the appellant’s] submission, the Respondent’s evidence was not tainted with anything like the same degree of evasion and non-responsiveness.
…
148 The bulk of [counsel’s] written submissions on behalf of the [appellant] approach the matter on the basis of witness credit, in the main part presenting arguments as to why the Court would not accept the evidence of the respondent. I should address each of those categories of submissions.
149 I’ve already made comment in relation to [counsel for the appellant’s] submission that the Court would find the Respondent to be an unreliable witness, evasive and concentrated on supporting her own case rather than giving responsive answers and have expressed my finding that the description applies to the [appellant], not to the Respondent.
(Emphasis added)
In his Summary of Argument, the appellant said that an examination of the relevant parts of the transcript identified by the primary judge at [33], “which are the foundation of” the finding as to the appellant’s credibility, “do not show that [the appellant] was consistently evasive and consistently unresponsive or not answering the question asked”. At the hearing of the appeal, it was submitted that the credibility finding under challenge was not available, and hence other material factual findings influenced by the underlying credit finding were also flawed. That said, the appellant did not directly challenge on appeal the findings of the primary judge that:
(a)The appellant’s evidence as to an understanding that a trip the parties undertook to Country B and Country C for approximately six weeks (the subject matter of Ground 4) affected “some form of marriage between [them]”, “became almost ludicrous” (at [39]); and
(b)The appellant’s understanding of the process of entering a legal marriage in Australia “was farcical” (at [109]).
The appellant did not challenge the finding of the primary judge at [34] as to the respondent’s evidence not being tainted with the same degree of evasion and non-responsiveness as the appellant.
Apposite to this ground are the well know peculiar advantages enjoyed by the trial judge hearing and seeing all the evidence as it is presented in a logical and chronological context (State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 160 ALR 588) and what was set out by Austin J in Cizek & Mihov at [20]:
…[N]o legal principles govern a trial judge’s assessment of witnesses’ reliability because such assessments are an intrinsically intuitive process. An integral part of the judicial function is the formation and expression of impressions about the reliability of witnesses, at least in so far as such impressions influence material factual findings. It is well accepted that appeal courts should generally respect the advantages enjoyed by trial judges to evaluate the evidence and the credibility of witnesses, though obvious error must still be corrected (Fox v Percy (2003) 214 CLR 118 at 127–129 and 138–147).
Contrary to the assertions of the appellant, the 22 identified passages in the material on appeal as recorded by the primary judge in the reasons at [33], coupled with the additional findings at [39] and [109], comfortably establish the adverse finding made as to the appellant’s evidence. The appellant offers no other explanation for why the primary judge’s assessments in that regard were wrong, either in law or fact, other than he disagrees with them. That does not establish error. He did not provide any explanation or point to any other piece of the transcript or evidence to articulate why the finding subject to complaint was unavailable. Ground 2 fails.
Ground 9 – “The primary judge erred in accepting and giving credence to the affidavit evidence of the Respondent’s mother when it was clear that the affidavit was compiled and produced by another person, was not read and accepted by the witness and was, if properly evaluated, compiled by the Respondent.”
No reference is made to this ground in the appellant’s Summary of Argument. It was not the subject of submission at the hearing of the appeal. Absent identification of error, the ground fails.
Ground 13 – “The primary judge erred in failing to give sufficient or any weight to the evidence of the [appellant’s] mother regarding the payment by the [appellant] of mortgage payments on property owned by the Respondent, and the primary judge failed to give reasons for so doing.”
As was the case as to Ground 9, no reference was made to this ground in the appellant’s Summary of Argument, and it was not the subject of submission at the hearing of the appeal. The ground fails.
Ground 15 – “The primary judge erred in failing to adjudicate upon the frequency of the sexual intercourse between the parties December 2013 to February 2017.”
This ground is forlorn. The primary judge was not required to adjudicate upon the frequency of the parties’ sexual exchanges. Whether a sexual relationship existed between the parties is one s 4AA(2) factor in a non-exhaustive list of considerations in determining whether or not the identified threshold is met. The frequency of sexual intercourse is not.
The evidence of each party on this topic is identified in the reasons at [79]–[81]. The primary judge found at [165], consistent with the evidence of the respondent, that the sexual relationship between them did not exist beyond mid-2014. The conflict in the evidence of the parties was adjudicated upon and determined. The ground, as constructed, fails.
Ground 12 – “The primary judge erred in misinterpreting the evidence of the accountant, [Mr E], regarding the statement of the Respondent that she was the partner of the [appellant].”
In the reasons, the primary judge said:
77 [Mr E], an accountant gave evidence for the [appellant]. In his Affidavit he said that in June 2015 the Respondent came to his office and described herself as “the partner of [the appellant]”. At that time the Respondent was the [appellant’s] business partner in the [service business]. He admits that he advised the Respondent that there was no need for her to add the [appellant] as a spouse on a tax return. He also gave evidence in paragraph 7 of his Affidavit that when preparing the [appellant’s] tax return for the year ending 30 June 2014, which would have been prepared in August 2014, he was instructed by the [appellant] to include the Respondent as his “partner” or “spouse” on the tax return, but in fact still included the [appellant’s] former partner, […].
(Footnote omitted) (Emphasis added)
At the hearing of the appeal the appellant said this was a “wrong finding”. It was uncontroversial that the appellant did not provide instructions to the accountant, Mr E, to include the name of the respondent as his de facto spouse on his tax return for the year ending June 2014. The finding identified at [77] was in error.
When an error of fact is made out, the relevant question then becomes whether the error impacted on the result of the case (De Winter and De Winter (1979) FLC 90-605). When asked at the hearing of the appeal how the finding in error was material, the appellant said that the primary judge inserted a “totally erroneous” fact about the appellant into the reasoning process, but could not articulate how the erroneous fact bore upon the determination of any s 4AA(2) indicia, or upon the ultimate determination. The submission of the respondent on this ground, being that the appellant not instructing his accountant to include the name of the respondent as his de facto spouse supported her case, as against the appellant’s case, has substance.
The ground fails as the factual error was not material to the outcome.
Ground 14 – “The primary judge erred in giving no regard to the evidence of the [appellant’s] father, such evidence being largely unchallenged, and gave no reasons for so doing.”
On appeal the appellant submitted that his father’s “testimony remained intact”. The reasons identify that the contentions by way of the ground, as constructed, are not available.
The primary judge at [73] did not accept that the appellant’s father could recall a one-and-a-half-page verbatim conversation said to have occurred between the father and the respondent six years before his affidavit was sworn. A finding was made at [74] that the appellant’s father’s evidence was inconsistent with the evidence of the appellant as to where the appellant was living at particular periods of time and with whom he was living at those times. The reasons record that the evidence of the appellant’s father was challenged at trial, that the primary judge considered the evidence as challenged, and that this evidence was given reduced weight (at [130]).
The appellant did not engage on appeal with the deficiencies in the evidence of his father as found by the primary judge and did not demonstrate that the findings of the primary judge as to the appellant’s father’s evidence were not reasonably open. Ground 14 fails.
Ground 5 – “The primary judge erred in failing properly to evaluate the importance of the […] holiday which the parties undertook in [late] 2016 and during which the parties slept in the same bed in the same cabin.”
Ground 6 – “The primary judge erred in failing properly to evaluate the importance of text and [social media] messages which passed between the parties in which terms of endearment were used.”
Ground 7 – “The primary judge erred in failing properly evaluate the important of text and [social media] messages which passed between the Respondent and the [appellant’s] mother in which the Respondent used the words “mum” and “mom”.”
Ground 8 – “The primary judge erred in failing properly to evaluate the evidence relating to any shared common residence of the parties.”
Ground 10 – “The primary judge erred in not properly evaluating the evidence of the joint enterprise of the parties in the [Suburb D] [service business].”
Ground 16 – “The primary judge erred in failing properly to evaluate the financial dependence and interdependence of the parties.”
Ground 17 – “The primary judge erred in failing properly to evaluate the evidence relating to the joint purchase and subsequent sale of [Suburb F] property.”
Ground 18 – “The primary judge erred in failing properly to evaluate the evidence of the circumstances and attendance of the parties to an IVF clinic in [Suburb H] and the continuing treatment given, so that the Respondent could conceive a child. The primary judge’s apparent findings relating to this matter were against the weight of the evidence and were logically improbable.”
Grounds 5, 6, 7, 8, 10, 16, 17, and 18 repeat a common thread of complaint as to the primary judge’s treatment of the evidence, in that there was an alleged failure to “properly” evaluate pieces of evidence. The appellant identified recent authority from the NSW Court of Appeal in Curtis v Curtis [2024] NSWCA 136 (“Curtis v Curtis”) in support of these grounds, citing the proposition that a primary judge is obliged to address the central controversies put up for resolution by the parties, or to engage, grapple, or wrestle with, the cases presented by each party. At the hearing of the appeal the appellant asserted that where there was conflicting evidence, the primary judge did not weigh up that evidence, explain the weighing up process, enunciate a finding, or, where he did enunciate a finding, explain how he came to that finding.
In order to assess these claims of error it is appropriate to:
(a)Keep in mind that the Act prescribes:
4AA De facto relationships
…
Working out if persons have a relationship as a couple
…
(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.
(b)Examine the reasons as a whole (Yoxall & Eide at [61]). The reasons are structured to start with an identification of principles, an analysis of the credibility of the parties and their witnesses, a recital of the evidence as related to each indicia as contained in s 4AA(2) of the Act interspersed with some factual findings and reasons, followed by a drawing of conclusions as to each indicia (at [164]–[169]), before reaching the final component, being the conclusion based upon the conglomeration of the preceding reasons.
As best as can be deciphered from the appellant’s material, Grounds 5, 6, and 7 make complaint as to evidence relevant to duration of the relationship (s 4AA(2)(a)), Ground 8 makes complaint as to evidence relevant to the nature and extent of the parties common residence (s 4AA(2)(b)), Grounds 10, 16, and 17 make complaint as to evidence relevant to the degree of financial dependence or interdependence, and any arrangements for financial support between them, (s 4AA(2)(d) and (e)), and Ground 18 makes complaint as to the evidence relevant to the degree of mutual commitment to a shared life (s 4AA(2)(f)).
While generally there is no obligation to give reasons for why individual pieces of evidence are accepted or rejected (Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasinghan (2000) 168 ALR 407 at [67]), if the parties advance conflicting evidence on a matter significant to the outcome, both sets of evidence should be referred to and reasons provided for why the judge prefers one set of evidence to the other so that the reasons explain particular findings of fact which are critical or determinative (DL v The Queen (2018) 266 CLR 1 at [130]). A primary judge is not required to make an explicit finding on each disputed piece of evidence. It will be sufficient if the inference of a finding is sufficiently clear (Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386 per Mahoney JA; Rafferty & Spencer (2016) FLC 93-710 at [30]).
As will be seen, it is not controversial that the reasons record the conflicting evidence adduced by each party that is the subject of complaint by way of these grounds. As to each of these grounds, the relevant question then becomes whether a consideration of that evidence permitted a finding to be made on a specific factual dispute as asserted by the appellant, and if it did not, whether the dispute of fact subject to complaint was necessary to resolve to reach the conclusion sought by either of the parties on each s 4AA(2) indicia.
If error as to an intermediate s 4AA(2) indicia conclusion is established, it must be critical and determinative to the outcome to explain how it would be alleged the primary judge erred by dismissing the application (Allesch v Maunz (2000) 203 CLR 172 at 179–181 and 187; Coal & Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at 204 and 223–225).
The reasons at [35]–[52] encompass nine subject matters relevant to the intermediate s 4AA(2) indicia conclusion as to the “duration of the relationship”. Grounds 5, 6, and 7 challenge three of the nine subject matters as to this indicium.
As to Ground 5, the reasons record the non-controversial and conflicting evidence of each of the parties about the late 2016 holiday:
45In [late] 2016, the parties went on a [holiday] together. The [appellant] asserts that the parties were on the [holiday] as a de facto couple in a committed relationship and spent the [holiday] together as a couple. On the Respondent’s evidence, she agreed to accompany the [appellant] on the [holiday] only as his friend, and that she spent much of her time alone on the balcony of their cabin [undertaking work for the retail industry] while the [appellant] gambled in the […] casino. On the evidence, the cost of the [holiday] was paid for by the Respondent on her ANZ credit card. The Respondent says that when she was booking the [holiday] for the parties the only available cabin with a balcony was a double cabin, and this was the only reason why the parties shared a cabin.
The subject matter of the ground was not identified or referred to in the appellant’s Summary of Argument. It achieved brief attention during the hearing of the appeal, as the appellant asserted that because no explicit finding was made as to the sharing of a cabin by the parties on the late 2016 holiday, the primary judge had not “grappled with” that fact.
To establish the ground, the appellant is required to show where the primary judge’s attention was drawn to the matter subject to complaint. He did not identify in the transcript on appeal any cross-examination on the topic. No submission was made by appellant at trial seeking any finding of fact as to the late 2016 holiday. His failure to do so is fatal to the ground. The appellant is bound by the way he conducted his case at first instance. The primary judge cannot be criticised for not considering a matter not addressed at trial. No appealable error is identified by way of Ground 5.
As to Grounds 6 and 7, being social media and text messages using terms of endearment between the parties, and between the appellant’s mother and the respondent, the reasons record:
47 Documents were put into evidence by the [appellant] through the Affidavit of [Mr G] [a translator], being text messages and [social media] messages that he asserts passed between himself and the Respondent, and between the Respondent and his mother, […]. There was a great deal of material in the evidence as to the use of terms of endearment between the parties in such messages, such as: “little bear”; “wife”; “hubby”, “pig hoof”; “little pig”; “smelly pig”; “beautiful pig the lady boss”; “babe”; “bear”.
In a message dated 20 October 2016, both parties refer to a depicted property as “our little nest”. The messages are not presented in sequential date order but are considerably mixed as to dates. What is not available from [Mr G’s] evidence are specific details of the sender and receiver of such text messages, but the same can be inferred from the context in most. Twenty-four of the messages containing endearments predate the end of May 2014, and fourteen are thereafter.
48 The Respondent was not cross-examined about the messages asserted to have been exchanged between herself and the [appellant].
49 The [appellant’s] mother, [the appellant’s mother] refers in her Affidavit to text and [social media] messages asserted by her to have passed between herself and the Respondent, with the [social media] messages dated 8 January 2017 containing the word “mum” and asserted to be sent from the Respondent to her, and messages dated 16 November 2016 containing the word “mom”, also asserted to have been sent from the Respondent.
50 The Respondent was cross-examined about the three text messages, being those referred to in paragraphs 24 and Annexure “D” (16 November 2015) and 36 and Annexure “F” (23 October 2015) of [the appellant’s mother’s] Affidavit, and she denied that those messages were sent by her. The only evidence indicating that such messages were received by [the appellant’s mother] from the Respondent is that given by [the appellant’s mother] during her cross-examination when she said that she had received those messages to her [...] mobile phone and that they had come from the Respondent. During the cross-examination, [counsel for the appellant] objected to questions being asked on the basis that the Respondent had not prior to the Final Hearing presented any evidence that the asserted messages were forgeries or were not sent by her. However, I pointed out to [counsel for the appellant] that the messages were contained in [the appellant’s mother’s] Affidavit filed on 14 September 2020 and that the Respondent’s Affidavit was filed on 11 September 2020, and in consequence the Respondent had the opportunity to address that evidence.
51 Though it was asserted by [the appellant’s mother] during her cross-examination that the [...] mobile phone, on which she asserts she received such text messages on, was in Australia and available, neither it nor the data thereon was produced in evidence.
52 [Counsel for the appellant] submitted that the Respondent’s denial that she had sent the [social media] messages “was just a lie”, and that “the content of those messages is impossible to be a result of any fabrication”, and then that “it is unlikely to be fabricated by anyone.” However, the submission is hollow in that no basis is laid either in the evidence or submissions to ground the assertion that the Respondent’s evidence “was just a lie” or that it was “impossible” or even “unlikely” that the messages were fabricated.
(Bold emphasis added) (Footnote omitted)
Contrary to the assertion by way of Ground 6, the primary judge expressly identified and considered the evidence of the social media messages between the parties and weighed that evidence (at [131]), concluding that the use of terms of endearment occurred during the period of the “romantic” relationship between them and that the use of such terms in that circumstance “may be expected”. Implicitly, the primary judge considered and gave reduced weight (at [131]) to the “few examples” of the use of such terms in 2016 in determining the intermediate conclusion as to the duration of the parties’ relationship. The complaint by way of Ground 6 is in essence that the primary judge did not “properly” evaluate the content of the text and social media messages between the appellant and respondent because that evaluation was not in a manner acceptable to the appellant. That does not establish appellate error. The appellant did not establish on appeal how the conclusions of the primary judge at [131] were not open on the evidence or why they were glaringly improbable, contrary to compelling inferences, or demonstrably wrong by way of incontrovertible facts or uncontested testimony (Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550 at [43]; Lee v Lee (2019) 266 CLR 129). Ground 6 fails.
As to Ground 7, the primary judge expressly considered and evaluated the evidence of the social media messages between the appellant’s mother and the respondent (at [49]–[52]). The onus rested with the appellant to establish the authenticity of the messages between his mother and the respondent. The evidence on the topic was “properly” weighed and assessed having regard to the capacities of the parties to adduce and contradict it (Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at 454). The primary judge was not satisfied that the evidence adduced by the appellant allowed the findings as sought by him to be made. The conclusion of the primary judge is not wrong merely because the appellant can point to countervailing evidence or circumstances (Thorne v Kennedy (2017) 263 CLR 85; Edwards v Noble (1971) 125 CLR 296). Ground 7 has no merit.
Ground 8 complains that the primary judge failed to “properly” evaluate the evidence of the parties as to the indicia of the nature and extent of their common residence. The only submissions as to this ground made in the Summary of Argument were that “[a] proper evaluation of the evidence of [the appellant’s] mother and father and the documentary evidence would have produced a finding that the parties lived together at [Suburb J], [Suburb D] and [Suburb K]”, and that the respondent’s description of the Suburb J property as a venue for her work for the retail industry and her denial of living with the appellant in both the Suburb D and Suburb K properties is “implausible against the photographic evidence and the evidence of [the appellant’s] mother and father and [Mr] [L].” The primary judge’s evaluation of the evidence of Mr L, the appellant’s friend, is addressed later at Ground 11.
The evidence as to this indicia is recorded at [53]–[78], including findings that the appellant did not have any of his mail directed to any of the addresses which he asserts he cohabitated with the respondent, and that in cross-examination the appellant said that “a little bit” of the time, he lived at his parent’s home and his brother’s home (at [54]). The reasons go on to record that bank and credit card statements, being a pivotal part of the documentary evidence adduced by the appellant said to support his case, demonstrated that he transacted at Suburb J 19 out of 123 days (at [57]), and that the respondent’s bank statements included “living expenses” at places other than Suburb J (at [60]). The primary judge found that the bank records for the parties did not assist in establishing the place of residence for either of the parties (at [62]). The appellant did not challenge these subsidiary conclusions on appeal.
At [64] and [65], the primary judge expressly took into account the evidence of the photographs of the Suburb J property, finding that “[n]one of the photographs depict rooms set up as bedrooms.” Implicitly, at [65], the primary judge preferred the respondent’s evidence on the topic. Nothing on appeal was raised as to why that conclusion was not available.
The reasons then record the consideration and evaluation of the mailing addresses of each of the parties, the appellant’s drivers licence address, and where the parties lived during the period the Suburb D service business was operating. The reasons identify that the evidence of the appellant’s mother on the topic given orally in chief with leave on three occasions produced non-responsive answers to the questions led and thereafter to a further non-responsive answer that did not assist the appellant’s case (at [71]), that the answers of the appellant’s mother on the topic directly conflicted with the evidence of the appellant, and that the later answers in cross-examination of the appellant’s mother completely contradicted her earlier answers (at [72]). A finding was made that the appellant’s father’s evidence conflicted on this topic with the appellant’s evidence (at [74]). The appellant did not make complaint as to any of the recitation of this evidence or the findings, and did not engage with the findings as to the conflicting evidence provided by each of his parents.
The reasons further record:
(a)The finding made at [69] that “[t]he clear and uncontradicted evidence of the Respondent and her mother (the Respondent’s father passed away in [...] 2019) was that from the sale of the [Suburb M] property, the Respondent’s parents lived with her at the [Suburb K] property, until moving from there to [alternative accommodation] in consequence of her father’s ill-health in mid-2016.”; and
(b)The implicit acceptance of the respondent’s mother’s “specific evidence” as to the respondent living with her, and not living “anywhere else, or with anybody else, nor did anyone live in the unit” with her (at [136]); and
(c)The unchallenged evidence of Ms N who visited the Suburb K property “a few times” between 2016 and mid-2018 and who “did not see any other male living there” and did not recall the respondent ever having a boyfriend in the time which she knew her (at [133]); and
(d)The unchallenged evidence of Mr P, who, in mid-2015 to early 2018, “sometimes” visited the Suburb K property, and who denied “ever seeing another male at the home” (at [134]).
The appellant did not make direct challenges on appeal to the recitation and acceptance of this evidence.
Upon weighing all the evidence, the primary judge was not satisfied that the appellant had established that the parties at any time shared a common residence (at [165]). It is difficult to envisage how the primary judge could undertake a more meticulous or detailed evaluation of the evidence on the extent of the common residence of the parties. The findings of the primary judge are reasoned and cogent. Ground 8 has no merit.
Grounds 10, 16, and 17 are linked. It is uncontroversial that the appellant purchased his Suburb Q property in 2012, and the respondent had purchased her Suburb M property in about late 2009 and her Suburb J property in 2013, all acquisitions being prior to meeting each other (at [94]).
As to Ground 17, the reasons record:
95 There was one real property co-owned by the parties – [R Street, Suburb F], Queensland (“the [Suburb F] property”). The [Suburb F] property was purchased in November 2014 in the names of the parties as joint tenants for $550,000. A deposit of $121,500 was paid [i]n [early] November 2014, with monies withdrawn by the Respondent from her [...] Account with Westpac and paid to [Law Firm CC] that day. The parties borrowed $471,836.15 in their joint names on an interest only loan account with [DD Bank] drawn [i]n mid- December 2014 for settlement. On the evidence, the whole of the non-loan monies paid for the purchase were provided by the Respondent, none by the [appellant]. As the loan account was in the joint names of the parties, it was a joint contribution towards the purchase price. Payments towards the loan account were on interest only basis. Even if there had been repayments towards the principal of the loan, such repayments are not payments towards the purchase price of the property – Calverley v Green (1984) 155 CLR 242 per Mason and Brennan JJ at 257:
It is understandable but erroneous to regard the payment of mortgage instalments as payment of the purchase price of a home. The purchase price is what is paid in order to acquire the property; the mortgage instalments are paid to the lender from whom the money to pay some or all of the purchase price is borrowed.
96 The Respondent’s evidence is that through their close friendship the [appellant] became aware that she was about to purchase an investment property in Queensland, and he requested that she allow him to join her in the investment, to which she agreed.
97 The [Suburb F] property was tenanted from about the time of its purchase at a commencing rent of $400 per week, all of which was paid to the Respondent and used by her to meet the interest payments due on the loan account secured on the property by mortgage to [DD Bank].
98 The property was sold in [mid-]2017 for $740,000. The [appellant] asserted that the contract for sale or transfer and that his purported signature on those documents was forged. The Respondent denies the [appellant’s] accusation and referred in evidence to email communication between the [appellant] and the solicitors acting on the sale, [Law Firm S]. The [appellant] gave evidence that the purported email address described to him in the email correspondence is not his email address. The [appellant] subpoenaed [Ms T], the solicitor who acted on the sale, and [Ms T] gave evidence in chief that no independent steps had been taken to verify the [appellant’s] identity, but that she had relied upon the proper conduct of the Justice of the Peace who witnessed the signature purported to be that of the [appellant] on the Transfer document. The issue as to whether the [appellant] was aware of the sale and the authenticity of his signature on the sale documents cannot be resolved on the balance of probabilities on the available evidence. The [appellant] did not receive any monies from the sale.
99 It was the [appellant’s] clear evidence that he took no part in the arrangements for the purchase or management of the property other than signature of the necessary loan account documents with [DD Bank]. All outgoings in relation to the property were met by the Respondent from her funds. Whether or not the [appellant] is entitled to any monies from the sale of the property would only be a question for this Court if alteration of property proceedings ensues under section 90SM of the Act.
(Emphasis added)
The extent of the submission as to this ground in the appellant’s Summary of Argument was:
7. [The respondent] and [the appellant] had bought a property in [Suburb F] in Queensland. That property was bought in joint names and [the respondent] and [the appellant] were both borrowers in relation to a mortgage on that property.
At the hearing of the appeal the appellant said that it was “put forward” before the primary judge that the purchase of the Suburb F property was an intermingling of finances, that “the point was made during the hearing” that going on the mortgage was a contribution in relation to the joint assets, and that “little is said” in the primary reasons about this issue, hence the failure by the primary judge to address the central controversies put up for resolution by the parties and to grapple with the case they presented on this subject matter. The submission is not accepted, there being no material evidence identified by the appellant on appeal that was omitted on the subject matter of the Suburb F property in the reasons, and there being no challenge on appeal to the subsidiary findings at [95], [97], or [99]. Ground 17 is absent merit.
Grounds 10 and 16 are directed to the conclusion at [165] as to there being no financial dependence or interdependence between the parties, or any arrangement between them for the financial support of one another, or in the alternative, to the conclusion at [167] that the whole of the evidence, does not demonstrate on the part of either party, such a degree of commitment to a shared life that it could be found to be a mutual commitment to a shared life. The evidence adduced by each party as to these subject matters and the subsidiary findings made leading to the conclusions as to each indicia at [165] and [167] are found at [82]–[93].
The primary judge found, absent challenge on appeal:
(a)At [100], that the respondent purchased a property at V Street, Suburb K (“the [Suburb K] property”) between December 2014 and early 2015 for $1.1 million in her sole name, and that she paid a deposit of $220,000 from her Westpac account, and sourced funds from her father to assist in the payment of stamp duty, costs of sale, and ongoing council rates for the property, and $880,000 from the NAB in January 2015, being an interest only loan; and
(b)At [102], that in around early 2015, the respondent purchased a property at W Street, Suburb Y, Queensland (“the [Suburb Y] property”) for approximately $610,000, borrowing $500,000 in December 2014 from Z Bank to apply to the purchase, and on 27 January 2015 paid the deposit, stamp duty, and costs by cheque drawn from her Z Bank account; and
(c)At [103], that the Suburb Y property was tenanted from the time of its purchase for between $600 to $700 each week, all of which was paid to the respondent and applied to payment of the loan account secured by mortgage on the Suburb Y property; and
(d)At [92], that the appellant conceded that he was “not able to point to any specific evidence of monies being paid by him, or on his behalf”, towards the acquisition costs of properties at Suburb Y and Suburb K.
The appellant asserted at trial that he withdrew his income in cash and gave it to the respondent. He adduced into evidence a summary of deposits and withdrawals from each of the parties’ bank accounts. The reasons record at [84] the respondent’s extensive cross-examination on these documents and thereafter findings made by the primary judge at [87] as to the documents adduced by the appellant casting doubt on his assertions as to him withdrawing all his salary and providing it to the respondent. The primary judge found at [88] that the respondent received income independent of that received from the appellant and at [89] that the respondent was “by no means dependent on the [appellant]” for financial support. The primary judge further found at [162] that there was no evidence was adduced “showing that any monies passed from the [appellant] to the Respondent were applied towards payment of purchase monies or repayment of loan accounts secured by mortgage on the properties.” No submissions were made by the appellant on appeal as to why the findings of the primary judge were not open.
The reasons record that the parties conducted a service business in Suburb D from April/May 2014 to October 2015. The respondent entered a lease of the premises in her sole name. The parties prepared the property during April and May 2014. The business name was registered in the respondent’s sole name and the business bank account was in the respondent’s sole name. The primary judge recorded at [91] that the appellant did not contest that the respondent paid her share of the service business set up and conduct costs.
The primary judge found that, on the appellant’s own evidence, he deposited $120,000 to the respondent’s bank account to apply towards the costs of establishing and the operation of the service business (at [85]). A further finding was made that the deposits into the respondent’s bank accounts during the period of the service business are explicable on that basis, as opposed to the appellant financially supporting the respondent. The primary judge found that the appellant did not adduce evidence connecting these monies to the respondent’s real properties (at [157]). The appellant did not make any submissions on appeal as to why these findings of the primary judge were not open.
The complaints by way of Grounds 10 and 16 are hollow. The primary judge engaged with the central controversies as to the subsidiary factual disputes presented by each party and made findings as to them that were open on the evidence, leading to the sound conclusions at [165] and [167] as to the identified s 4AA(2) indicia.
As to Ground 18, the primary judge extensively recorded the evidence and position of both the respondent and the appellant as to the issue of the IVF undertaken by them (at [111]–[128]), including the oral and affidavit evidence of each of the parties, the medical records, and the appellant’s Medicare records. The parties commenced IVF in late 2014 and two viable embryos resulted. The appellant contended at trial that the participation in IVF was evidence of the parties’ commitment to a shared life (at [111]). The respondent’s case was that she wished to have a child as a single mother (at [112]). The parties’ referral to the IVF clinic was during their romantic relationship. The primary judge recorded that the appellant’s evidence as to the parties’ engagement in the IVF procedure was “sparse”, as was the respondent’s (at [115]). The reasons record that the respondent was extensively cross-examined on the subject matter (at [114]). One of the embryos was transferred in late 2015, however a pregnancy did not result. The second viable embryo was frozen, and in 2016 the respondent permitted the embryo to be removed from storage and it passed from being viable.
At [116] the primary judge recorded that the original referral letter from the GP dated early 2014 referred to the respondent as having “been trying to get pregnant for one year without success.” As, on the appellant’s case, the parties had only been in a relationship since October 2013, the primary judge found that “[t]his indicates that the [appellant] was providing information to the IVF clinic that was not true, wholly probably on the basis that the clinic had certain parameters for couples engaging in the treatment, though that is not provided in the evidence.” It was uncontroversial that the IVF documentation contained at least three errors. The primary judge then found:
128 I also find that the information recorded on the records made by health professionals involved with the IVF treatment as to the relationship status of the parties cannot be taken at face value given the other incorrect information provided by one or both of the parties as to the length of time they had been trying to fall pregnant, a period of time significantly preceding the time of their first meeting on the Internet.
(Emphasis added)
The primary judge found at [127] that the respondent alone determined in 2015 not to proceed with the IVF process. The finding was open on the evidence. The appellant did not establish on appeal by reference to the appeal book or transcript that he was in any way engaged in any of the decisions as to the IVF treatment. The reasons record an extensive examination of documents and payments for the IVF treatment, inferentially accepting the respondent’s evidence that she met all IVF expenses (at [122]–[126]). The submissions made by the appellant at trial on this topic are extensively recorded, considered, and not accepted by the primary judge (at [155]–[156]). The reasons record, by reference to the transcript, why the submissions as to subsidiary findings of facts were not accepted.
The appellant did not contend on appeal that the primary judge had omitted to consider any part of the evidence relevant to the IVF treatment or failed to identify the case presented by each party on that topic, or that any of subsidiary findings made on the topic were not open or not explained. At the hearing of the appeal the complaint by way of Ground 18 morphed to be a complaint as to the weight to be afforded to the evidence in the reaching of the determination at [167] that the whole of the evidence did not lead to a conclusion as to a degree of mutual commitment to a shared life. That conclusion included a consideration of not only the IVF evidence and subsidiary findings on that topic, but also of the service business operation, a trip to Country B and Country C, and photographs. Ground 18 is barren.
As to Grounds 5, 6, 7, 8, 10, 16, 17, and 18, the reasons identified different aspects of the relationship between the parties and the evidence and cases raised by each of them. In accordance with the appliable law, the reasons drew those factors together into a composite picture (Yoxall & Eide at [114]). When taken as a whole, the primary judge’s reasons explain how the overall conclusion was reached. Each piece of evidence and each indicium identified by the appellant on appeal and complained to not have been “properly” evaluated, was considered as part of the composite picture.
Ground 11 – “The primary judge erred in failing to evaluate the evidence of [Mr L] that the Respondent showed him a bedroom in the [Suburb K] residence which she shared with the [appellant].”
As to the evidence of Mr L, the primary judge said:
75 The [appellant’s] friend, […] (“[Mr L]”), gave evidence in chief that he visited the parties at the [Suburb K] property “for a few times”, the first occasion being when he was accompanied by his son and he met the Respondent there, and the second time being by himself to assist the [appellant] cut the grass, and was invited to stay for dinner by the Respondent. During his cross-examination, it was put to [Mr L] by [counsel for the respondent] that these two occasions actually occurred on one occasion, to which [Mr L] agreed.
76 [Mr L] does not give any time, even approximate, for when he asserts, he was told by the [appellant] that the [Suburb K] property was the [appellant’s] new address, or when he visited the home and was invited to dinner and asserts that he was shown a bedroom by the Respondent and told by her “this is our bedroom”. He also asserts that “sometimes” he collected the [appellant] from the [Suburb K] property at about 5:30am to drive him to work. The Respondent denies that she showed [Mr L] a bedroom and referred to it as “our bedroom” (denial being consequent upon during cross-examination on instructions).
…
132 Other than the evidence of the [appellant’s] parents as to the Respondent attending two of the [appellant’s] family’s dinners at restaurants in 2016 and 2017, and the evidence of [Mr L] as discussed above, there is no other evidence of a public perception, or even a family perception beyond the [appellant’s] parents, that the [appellant] and Respondent were in a relationship as a couple living together on a genuine domestic basis. There is no evidence from other family members or from neighbours or from any employees that may have been engaged at the [Suburb D] [service business], of friends or acquaintances to that effect.
(Footnotes omitted) (Emphasis added)
The appellant submitted that a “proper evaluation” of Mr L’s evidence, or “grappling” with that evidence, as referred to in Curtis v Curtis, “would have produced evidence that [the respondent] showed him their shared bedroom in [Suburb K]”.
The complaint as to a failure to evaluate devolves to be a complaint as to weight. The primary judge expressly identified and took into account the evidence of Mr L, subject to its limitations. The reasons record that the primary judge nevertheless concluded that a consideration of all the evidence as to the reputation and public aspects of the relationship was insufficient to establish that intermediate indicia conclusion as sought by the appellant. The appellant did not put into issue any of the other integers or findings of fact made by the primary judge in coming to this conclusion. Ground 11 has no merit and fails.
Ground 4 – “The primary judge erred in not ascribing to the admitted trip to [Country B] and [Country C] in [late] 2015 and [early] 2016, and the meeting with the [appellant’s] relatives, any aspect of personal, romantic connection when such a connection was supported by other evidence and the contrary position stated by the Respondent was mere assertion.”
The appellant did not explain in his Summary of Argument or at the hearing of the appeal what was meant by the phrase “not ascribing”, “any aspect of a personal, [or] romantic connection”. The Summary of Argument of the appellant did not identify the “other evidence” that was said to support the appellant’s version of events. At the hearing of the appeal, the appellant said there “needs to be a finding on this very important point”.
The primary judge outlined the contentions of either party and the evidence of the trip to Country B and Country C at [39]–[43]. Contrary to that asserted in the ground, a number of the respondent’s “mere assertions” relevant to the topic were the subject of findings.
The primary judge found (at [40]), not challenged on appeal, that the respondent paid the costs of the trip and informed the appellant that he would have to repay her approximately $8,000, which he did.
The reasons record:
42…The [appellant] says that his grandmother gave the Respondent a ring as a recognition of their marital relationship, whereas the Respondent says that the ring was given to the [appellant] to bring back to his mother in Australia, and that the grandmother gave the Respondent a silver bracelet as a gift.
The respondent identified at the hearing of the appeal that the appellant conceded in cross-examination that the ring was provided for the purpose of being returned to his mother (Transcript 26 August 2021, p.237 lines 7–41).
The primary judge then said:
43There was conflicting evidence between the parties as to whether they slept in the same room or same bed during the trip – the [appellant] asserts that they did. The Respondent denies that the parties slept in the same room or bed and says that the [appellant] stayed in a hotel in [City O], while she stayed with her cousin in [City O]. The Respondent gives further evidence that they met up together to fly to [Country C], toured the country with another couple and did not sleep in the same room or bed together during the 14-day visit, and that on their return to [City O], the [appellant] again stayed in a hotel and the Respondent stayed with her cousin.
There was also no challenge on appeal to the primary judge’s finding at [138] that the appellant’s parents’ evidence on this topic did not provide clarity, or that aspects of the appellant’s evidence on this topic became almost ludicrous (at [39]) and was farcical (at [109]). Implicitly, the evidence adduced by the appellant as to the subject matter of this ground did not establish to the requisite degree the conclusion he sought. The ground fails.
Ground 3 – “The primary judge erred in not giving any or any sufficient weight to the photographs showing the Respondent in a wedding dress and writing in the sand “[the appellant’s name] & [the respondent’s name]” in early 2014”.
At the hearing of the appeal, the appellant said that this ground contended a failure of the primary judge to give “any” weight, as opposed to “sufficient weight”, to photographs of a trip the parties took to Town AA, including of the respondent in a wedding gown and of she writing the names of the parties in the sand. The appellant submitted on appeal that the photographs went to the indicia of a mutual commitment to a shared life, the reputation and public aspects of the relationship, the duration of the relationship, and whether a sexual relationship existed. He then conceded that it could not be gleaned from the photographs whether the parties had a sexual relationship.
The primary judge expressly identified the photographs at [38] and the contentions of either party giving context to the photographs, the appellant contending that the photos were their “wedding photos” (they did not marry), and the respondent contending that the gowns were part of her work for the retail industry. As no explicit finding was made as to which party’s reasons for the photographs was evident, the appellant submitted that this left the photographs “unweighed”. It is not accepted that a determination as to whose version of the context of the photographs was accepted would establish error in the determination as to the indicia of the public aspects and reputation of the relationship, or the mutual commitment to a shared life, or would have affected the ultimate determination.
The appellant conceded at the hearing of the appeal that the photographs “by themselves are not important” but submitted that when they are considered with social media messages (the subject of Ground 6), they assume aggregated importance. Notwithstanding the failure of Ground 6, that does not demonstrate on appeal how the context of a photograph was material to any of the intermediate indicia conclusions in the context of the whole of the reasons. This weight ground was always misconceived and fails.
CONCLUSION AND COSTS
The appeal will be dismissed.
The respondent’s costs notice filed in resisting the appeal is itemised in accordance with Sch 3 of the Rules on a party and party basis at $27,996. In the event the appeal was dismissed, the appellant conceded that he could not be heard against an order for costs fixed in that sum. An order will be made for the appellant to pay the respondent’s costs of the appeal fixed in the sum of $27,996 within 28 days.
I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 4 February 2025
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