Cizek & Mihov
[2024] FedCFamC1A 151
•5 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Cizek & Mihov [2024] FedCFamC1A 151
Appeal from: Cizek & Mihov [2024] FedCFamC2F 584 Appeal number: NAA 137 of 2024 File number: MLC 13083 of 2023 Judgment of: AUSTIN J Date of judgment: 5 September 2024 Catchwords: FAMILY LAW – APPEAL – DE FACTO RELATIONSHIP – Where the primary judge declared a de facto relationship never existed between the parties – Where the appellant contends the parties were in a de facto relationship over 12 years – Where the primary judge found the parties did not have a mutual commitment to a shared life – Where there was no error in the approach taken by the primary judge in assessing the parties’ respective credibility – Where the primary judge did not act contrary to the governing legal principles in s 4AA(2) of the Family Law Act 1975 (Cth) – Appeal dismissed – Appellant to pay the party/party costs of the respondent. Legislation: Family Law Act 1975 (Cth) Pt VIIAB, s 4AA
Succession Act 2006 (NSW)
Cases cited: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Burke v LFOT Pty Ltd (2002) 209 CLR 282; [2002] HCA 17
Colburn & Cleese (2022) FLC 94-105; [2022] FedCFamC1A 147
De Winter and De Winter (1979) FLC 90-605
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
Fairbairn & Radecki (2022) 275 CLR 400; [2022] HCA 18
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
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Katsilis v Broken Hill Pty Ltd (1977) 18 ALR 181
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28
Lennon & Sanil (2020) FLC 93-962; [2020] FamCAFC 109
Locke & Norton [2014] FamCA 811
McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8; [1934] 8 WCR 362
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Nelson v Nelson (1995) 184 CLR 538; [1996] HCA 25
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
Sadiq v NSW Trustee and Guardian (2016) 14 ASTLR 577; [2016] NSWCA 62
Sadiq v NSW Trustee and Guardian [2015] NSWSC 716
Shelby & Rylan [2022] FedCFamC1A 143
Sinclair & Whittaker (2013) FLC 93-551; [2013] FamCAFC 129
State Rail Authority (NSW) v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588; [1999] HCA 3
Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4
Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49
Vetter v Lake Macquarie City Council (2001) 202 CLR 439; [2001] HCA 12
Number of paragraphs: 91 Date of hearing: 29 August 2024 Place: Melbourne Counsel for the Appellant: Ms Dellidis SC & Ms Tiernan Solicitor for the Appellant: Glezer Lanteri & Associates Counsel for the Respondent: Mr Puckey KC & Mr Wilson Solicitor for the Respondent: Kennedy Partners ORDERS
NAA 137 of 2024
MLC 13083 of 2023FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS CIZEK
Appellant
AND: MR MIHOV
Respondent
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
5 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The Amended Notice of Appeal filed on 7 August 2024 is dismissed.
2.The appellant shall pay the respondent’s party/party costs of and incidental to the appeal, fixed in the sum of $30,000, for which purpose the monies paid by the appellant to the respondent’s lawyers by way of security for costs pursuant to Order 1 made by the appeal registrar on 8 July 2024 shall be retained by the respondent.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cizek & Mihov has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN J:
This is an appeal brought from a declaration and a consequential order made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 10 May 2024.
The primary judge declared this:
1.Pursuant to section 90RD of the Family Law Act 1975 (Cth) it is declared that a de facto relationship never existed between [the appellant] and [the respondent].
The declaration deprived the Court of jurisdiction under Pt VIIIAB of the Family Law Act 1975 (Cth) (“the Act”) and so the primary judge dismissed the appellant’s application for financial relief in these terms:
2. The [appellant’s] application filed on 9 November 2023 is dismissed.
The appellant appealed from both orders on 5 June 2024.
The appeal is dismissed for the reasons which follow.
BACKGROUND
The appellant commenced proceedings seeking property adjustment orders against the respondent in November 2023. She alleged, and sought a declaration in terms, that the parties had been in a de facto relationship over some 12 years covering two discrete periods, being:
(a)from 2011 until late July 2013; and
(b)from July 2014 until late July 2023.
The respondent denied there had been any de facto relationship between them and conversely sought a declaration to that effect.
With the parties’ consent, the threshold issue about the existence of the de facto relationship was listed for separate hearing before the primary judge. The hearing spanned five days in March and April 2024, after which judgment was reserved and delivered a few weeks later in May 2024.
In lengthy and thorough reasons for judgment, the primary judge reached these critical conclusions:
276.I am satisfied that the [appellant] was committed to a relationship which provided for her: to live separately from the respondent and to remain doing so; a life of travel with and without the respondent; to attend at and host social events with or without the respondent; the freedom to simultaneously engage in other romantic relationships; and to be able to rely on the respondent absolutely financially supporting her and her children.
277.I am satisfied that the respondent was committed to a monogamous relationship with the [appellant] in which he was hopeful that they would: live together in a common residence all of the time in the future, but settled for much less than even sharing a common residence for even part of the week; travel together; attend and host social events together; pursue their shared philanthropic ambitions with the [appellant] having her own financial independence within that endeavour; and jointly rather than independently share his considerable wealth.
278.The respondent was unwilling to continue providing the [appellant] with unlimited financial support in a relationship that was not what he wanted and was unlikely to progress, and the [appellant] was unwilling to commit to their relationship in a manner other than which she wanted and resisted progressing. I am satisfied that the evidence supports the respondent’s belief that the [appellant] was keeping him at arms-length in order to maintain the relationship for financial purposes whilst not give too much of herself and her life in return.
279.The [appellant] bears the onus of proof. I am satisfied that the respondent was committed to sharing life with the [appellant]. However, I am not satisfied that the [appellant] has established, on the balance of probabilities, that she shared that commitment. There was minimal, if any, degree of mutual commitment to the same shared life.
280.Accordingly, I am satisfied, as submitted by Counsel for the respondent, that there was no “meeting of the minds”, and the parties were in fact committed to different relationships.
…
342.Upon balancing and considering all of the circumstances of the relationship canvassed in these reasons, I find that the [appellant] has not established on the balance of probabilities that the parties’ relationship was a de facto relationship.
343.I am satisfied that the composite picture of the parties’ relationship does not support that the [appellant] and the respondent were ever in relationship as a couple living together on a genuine domestic basis. I am satisfied that their relationship of 10 years and three months was always “something less than a de facto relationship”.
(Emphasis added)
THE APPEAL
The appellant prosecuted an Amended Notice of Appeal filed on 7 August 2024.
Grounds 1 and 2
These two grounds allege errors by the primary judge in the approach taken to the assessment of the parties’ respective credibility. As framed, the grounds assert errors of legal principle, but were instead argued as errors of fact without eliciting any objection by the respondent.
The complaints are particularised by two propositions: first, the primary judge considered matters pertinent to the credibility of the appellant, but not the respondent (Ground 1); and secondly, “independent” evidence stood in the way of the credibility finding made by the primary judge (Ground 2).
The appellant’s fundamental proposition was the primary judge’s assessment of her as being a less reliable witness than the respondent was not open and so several other material factual findings influenced by the underlying credit finding were also flawed. The findings upon which the appellant focussed were, first, criticism of her reliability due to the evidence she gave in respect of an exhibited photograph, secondly, her resistance to the respondent’s desire for them to share a residence, and thirdly, her unwillingness to commit to a monogamous relationship with the respondent.
It is necessary to address these grounds by dealing with both the complaints of legal and factual error and, for both purposes, it is apposite to start with the seminal credit finding. Her Honour made this finding at an early point in the reasons for judgment:
36.For the following reasons, in addition to those observations, where the evidence of the [appellant] and respondent is in conflict and a finding cannot be made on the available contemporaneous material, objectively established facts, and the apparent logic of events, I prefer the evidence of the respondent.
(Footnote omitted)
Evidently, the credibility finding was stated at such an early point in the reasons because a central plank of the respondent’s case was the appellant’s asserted inferior credibility. The issue occupied considerable space in the final submissions. The respondent submitted his evidence should be preferred to the appellant’s evidence for three essential reasons, which the primary judge then went on to immediately consider (at [37]–[53]).
By comparison, the appellant urged that no finding of unreliability should be made against either party. Her counsel submitted this to the primary judge:
[Counsel for the appellant]: …[The appellant] and [the respondent], whilst very different in their presentation in the witness box, were by and large credible witnesses. They gave evidence to the best of their ability in relation to factual matters and sure, there might have been an inaccuracy here.
(Transcript 15 April 2024, p.278 lines 29–32)
Having submitted that neither party should be regarded as being an unreliable witness, the appellant’s counsel then spent time in final submissions trying to ameliorate the attack mounted by the respondent upon the appellant’s reliability by reference to the “three issues as to credit” which the respondent identified.
As literally expressed in the opening words to the paragraph, the overall finding of the primary judge as to credit (at [36]) was based upon other findings set out within the reasons, both beforehand (at [34]–[35]) and afterwards (at [38]–[42], [53], [155] and [323]–[328]).
The initial premise of the complaint within these grounds was that the primary judge addressed only the appellant’s credit at the early point in the reasons for judgment and did not reciprocally address any of the considerations which tended to undermine the respondent’s reliability which, so it was contended in the appeal, meant the ultimate conclusion expressed at [36] was “profoundly imbalanced”. The appellant’s written submissions to that effect were as follows:
1.…The [primary judge] considered these matters as to the Appellant’s credit while not considering, side by side, the equivalent and more significant (and notably similar in terms of subject matter) evidence calling into question the Respondent’s credit. …
…
24.The [primary judge’s] approach to these issues regarding credit calls into fundamental question the adequacy of the rest her reasons, because her assessment of the parties’ credit underpins and infects the entire judgment – it is a fatal flaw. …
The submissions are rejected. Contrary to the appellant’s contention in the appeal, no 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).
Only “glaringly improbable” factual findings based upon the acceptance of evidence given by an ostensibly credible witness or findings which conflict with other incontrovertible facts are liable to be impugned on appeal (Lee v Lee (2019) 266 CLR 129 at [55]; Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550 at [43]). Factual findings which have a firm evidentiary foundation ably withstand challenges to their validity and are not wrong merely because an appellant can point to some countervailing evidence (Thorne v Kennedy (2017) 263 CLR 85 at [54] and [59]; Edwards v Noble (1971) 125 CLR 296 at 302–304 and 307).
The primary judge’s findings about the parties’ respective reliability as witnesses did not all flow one way and was even-handed, as illustrated by the way in which her Honour dealt with the parties’ public representations to third parties about the status of their relationship.
The appellant received a Centrelink benefit over many years, to which she was entitled only if she was not in a de facto relationship. The primary judge was prepared to accept the appellant received the benefit lawfully because she did not truly believe she was in a de facto relationship with the respondent, but that inference would contradict her case. Alternatively, if as she contended, she was in a de facto relationship with the respondent then she must have received the Centrelink benefit unlawfully (at [53] and [155]). The appellant was impelled to concede in the appeal that those alternate findings were plainly open.
As for the respondent, by August 2019 he knew the appellant received the Centrelink benefit (at [49]–[50]), yet he still distributed income to her as part of a tax minimisation scheme, representing her to be his partner in associated financial documents (at [148]–[151] and [323]). He also described her as his partner in various other public contexts (at [324]). Similarly, those representations contradicted the case he ran.
In the appeal, the respondent contended his representation of the appellant as being his partner was not necessarily the same thing as representing her as his de facto spouse, but the narrow distinction was too cute for the primary judge who found the respondent either exaggerated or lied when he described her so (at [326]), though he did so for the applicant’s benefit (at [328]). It was open for the primary judge to find the appellant’s mendacity was, in the circumstances, of greater significance than the respondent’s mendacity (at [155] and [328]). Nonetheless, the primary judge observed (at [44]) how misrepresentations made by parties to third parties about the status or characterisation of their relationship is not dispositive, which proposition is undoubtedly correct (Nelson v Nelson (1995) 184 CLR 538 at 568–571 and 613–617).
In her Summary of Argument, the appellant submitted this:
21.…However, there are numerous points in the judgment at which the [primary judge] made findings or judicial comment based on the parties’ credit, or findings she based upon credit, where there was independent evidence available to the court which contradicted such a finding. In giving the latter more weight rather than the assessments of credit alone, the [primary judge] made findings on credit against the independent evidence.
22.The most significant example is the [primary judge’s] finding that the Respondent wanted the parties to live together in a common residence and the Appellant did not.
(Footnote omitted) (Emphasis added)
The primary judge found the respondent wanted more from the relationship than the appellant was prepared to give and, in an apparent attempt to contradict that finding, the appellant now points to concessions made by the respondent about him wanting them to either have or retain separate residences at points during their relationship – both in cross-examination and in text messages he sent to the appellant.
Such sundry evidence does not assist the appellant’s cause for two reasons. First and foremost, she effectively conceded the issue at trial by admitting in her Case Outline document that the respondent had “yearned for a more committed relationship”, thereby strongly implying her unwillingness to match the respondent’s level of commitment. It is a difficult task to challenge a finding on appeal when the factual issue was not genuinely contested at the trial, though the respondent did not contend the appellant was estopped from doing so (Metwally v University of Wollongong (1985) 60 ALR 68 at 71). Secondly, the existence of other evidence which might have supported a different finding from that made by the primary judge falls well short of demonstrating the subject finding was wrongly made.
Accepting for present purposes the respondent did make inconsistent representations from time to time about his desire for either a common residence with, or a separate residence from, the appellant, the evidence which the appellant now seeks to emphasise in the appeal is neither “incontrovertible” nor renders the primary judge’s findings “glaringly improbable”, because it is sourced exclusively to the respondent. All the evidence upon which the appellant relies comprises the respondent’s expressions of opinion, either orally or in writing, but his expression of one opinion at one point in time is not necessarily more or less reliable than his expression of an inconsistent opinion at a different point in time. The highest this complaint can rise is that the primary judge accepted some, but not other, parts of the respondent’s evidence. That is not an error because a judge may accept all, some, or none of the evidence given by a witness (Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155; McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8 at 9).
Although the appellant regarded the other two examples of factual error as being “less significant” than the error just addressed, she maintained her challenge to the findings made by the primary judge in respect of an exhibited photograph and her resistance to the monogamy desired by the respondent, which findings can be conveniently addressed together.
The respondent deposed this in relation to the interruption to his relationship with the appellant in 2013:
28.At the end of 2012, I began suspecting [the appellant] was involved in another relationship with another person, when I inadvertently saw a message on her iPad. This caused considerable friction between us, because I wanted an exclusive relationship and was interested in pursuing something more serious and long-term, but [the appellant] continually denied she was seeing someone else. Finally, in about March 2013, [the appellant] posted a photograph of her male friend sleeping on her couch on her social media. She eventually admitted they were romantically involved, but for several months we had very little contact and no sexual intimacy took place between us. In about June 2013, I stopped paying [the appellant’s] rent, private school fees and other bills and we stopped seeing each other altogether by the end of June 2013.
(Respondent’s Affidavit filed 15 March 2024)
In response to that evidence, the appellant deposed this:
4.In response to [the respondent’s] Affidavit filed 15 March 2024, I reply as follows:
…
(d)As to paragraph 28, the photograph that [the respondent] is referring to was taken on 25 April 2014, at a time when we were separated. As deposed to previously, we separated from mid-2013 and resumed our relationship later in 2014.
(Appellant’s Affidavit filed 20 March 2024)
Initially, it will be noticed that the appellant did not refute the respondent’s evidence about him finding the message on her iPad, him telling her he wanted an exclusive relationship, him challenging her about seeing someone else, and her admission that she was romantically involved with another person.
The appellant only took issue with the respondent’s evidence about the photograph, alleging it was taken 13 months after he said it was taken and posted to social media, at a time when she and the respondent were not seeing one another. The factual conflict was taken up with the appellant during her cross-examination and scrutiny of the transcript shows her oral evidence was obfuscatory and unresponsive. The photograph to which the respondent referred was impressed with the date it was taken in March 2013. It was untrue for the appellant to depose the photograph was taken 13 months afterwards in April 2014. The primary judge found the appellant’s evidence on that issue to be unsatisfactory and said so (at [40]–[42]). Her Honour was satisfied the appellant was romantically involved with another man in 2013, while she alleged simultaneously conducting a de facto relationship with the respondent.
Later in the reasons for judgment (at [116]), the primary judge found the appellant was engaged in romantic relationships with persons other than the respondent throughout their relationship. Despite the appellant contending that finding was not open, it was inferentially open for a number of reasons: the respondent’s evidence of the appellant’s admission of her romantic involvement with another person in 2013 (at [216]); the unchallenged evidence of a witness that the appellant was flirtatious with men aside from the respondent (at [113] and [217]); unchallenged hearsay evidence of the appellant telling the respondent their relationship was “open” and she was free to take opportunities to see other people (at [113] and [217]); and the respondent’s evidence of being aggressively approached by another man in July 2023 who told him he would be assaulted if he “touch[ed]” the appellant (at [218]).
Although the appellant’s challenges to the few identified facts fail, it would be instructive for her to contextually realise they were not pivotal. True enough, they fed into the material finding about the parties having different attitudes to the fundamental nature of their relationship (at [276]–[280]), but that finding was inevitable given the appellant’s acknowledgement of how the respondent wanted greater commitment from her to the relationship. Numerous other uncontroversial findings of objective facts pointed strongly in the direction of there being no de facto relationship. Regardless of the reasons why, the parties never shared a common residence, they did not spend much overnight time together, they chose not to see each other during the pandemic lockdowns, they travelled more often alone than they did together, and they did not intermingle their incomes, assets or financial resources.
These grounds fail on both the legal and factual points.
Ground 3
Ground 3 is also directed to the credit finding but, unlike Grounds 1 and 2 which were used as vehicles to allege both legal and factual errors, this ground alleges the primary judge failed to provide adequate reasons for “accepting” the evidence of the respondent and “rejecting” the evidence of the appellant.
The ultimate finding as to credit made by the primary judge (at [36]) has already been extracted and need not be repeated. It was presaged by these observations:
31.…My observations of the demeanour of the parties and the witnesses have assisted my assessment of the evidence.
…
34.The respondent is an articulate and successful businessman. The manner in which he gave his evidence was commensurate with a man of his standing. He was softly spoken, and whilst consistent in his evidence was nonetheless willing to make appropriate concessions.
35.The [appellant], on the other hand, was guarded and prevaricated when giving her evidence. There were often long pauses between the questions and her answers, which appeared she utilised to give her time to tailor her evidence to promote her case.
Plainly enough, the credit finding was premised upon the primary judge’s assessment of the parties’ presentations in Court, adequately explained in those paragraphs.
Thereafter, the primary judge explained the conclusions of how the appellant’s evidence in respect of the photograph was “tailored” to suit her case (at [40]–[42]) and her evidence explaining why she did not inform Centrelink of her status as a de facto spouse was reconstructing past events to promote her case (at [53]). The primary judge also covered the respondent’s false representations to third parties which were inconsistent with his case of there never having been any de facto relationship (at [323]–[328]). Both parties made public representations contrary to the cases they conducted at trial. Those findings were also adequately explained.
Curiously though, the credit finding was virtually redundant because the primary judge did not deploy the finding to resolve any material factual dispute. Most likely, the credit finding was only made because the respondent pressed for it, though her Honour need not have appeased his insistence. The appellant’s irritation with the credit finding suggests it only served to inflame passion rather than quell controversy. Credibility assessments are only required when there is no documentary, electronic or other form of incontrovertible evidence to resolve conflict over a material question of fact (State Rail Authority (NSW) v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588 at 607, 608 and 620–621), but those situations are not as common as might be thought.
It seems relatively clear from an appraisal of the reasons for judgment that the primary judge did not use the credit finding to resolve material disputes of fact. The primary judge found there was no de facto relationship because, despite their sexual intimacy (at [110] and [116]) and the respondent’s financial generosity to the appellant (at [119]–[120]), they did not share a common residence (at [70] and [80]), they did not spend any significant overnight time together (at [80] and [87]), they did not see each other during the pandemic lockdowns even though they could have (at [98]), they travelled more often separately than they did together (at [107] and [273]), they did not intermingle their incomes, assets or financial resources (at [118]), and the appellant was not as emotionally committed to the relationship as was the respondent (at [215], [221]-[226] and [276]-[280]). None of those findings was genuinely controversial and none depended upon the acceptance of the respondent’s uncorroborated evidence in preference to the appellant’s uncorroborated evidence.
Putting aside the question of whether it was even necessary to make findings which ventured beyond the objective facts necessary to engage the factors within s 4AA(2) of the Act, the respondent’s evidence was preferred to resolve the parties’ subjectively different perceptions of, and motivations in relation to, past factual events. That occurred, for example, when the primary judge found: the parties’ overlapping use of a holiday property fell short of them sharing a residence (at [97]); the respondent’s significant financial support of the appellant was to encourage her greater commitment to the relationship and because he felt sorry for her (at [124]–[125] and [130]); it was unlikely the respondent gave the appellant advice about her financial affairs (at [171]–[182]); a third party known to the appellant aggressively approached the respondent in 2023 (at [218]–[220]); the reasons why the parties did not conceive a child together (at [227]–[231]); and the respondent did not treat the appellant’s children like his own (at [285]–[286]).
The primary judge’s credibility finding was adequately explained but, even if it was not, the finding had no material influence on the judgment, in which event it could be disregarded as being immaterial (De Winter and De Winter (1979) FLC 90-605). This ground fails.
Ground 4
This ground alleges an error of principle by the misapplication of Fairbairn & Radecki (2022) 275 CLR 400, it being contended the primary judge improperly elevated the consideration of a common residence as a factor of more importance than any other under s 4AA(2) of the Act, when the Act expressly stipulates that no single factor is necessarily determinative of the existence of a de facto relationship (s 4AA(3)).
The appellant’s submission in support of this ground was as follows:
30.…the practical effect of the [primary judge’s] approach was to elevate living together to the status of a requirement. The trial judge emphasised and elevated sharing life as a couple, against the weight of the evidence, contrary to s 4AA(3). What the [primary judge] did not do is take account of the “many various ways in which two people may share their lives together in the modern world”.
31.Her Honour was distracted by the Respondent’s assertions regarding what he wanted for their future life, rather than properly consider the life that they actually had together. The Respondent may have aspired to a life together, but that is not to negate the evidence of their over ten years of sharing a life as a couple.
(Footnote omitted) (Emphasis in original)
Unlike the current situation, in which the question for the primary judge was whether the parties ever were in a de facto relationship, Fairbairn & Radecki concerned the different question of whether the parties’ de facto relationship had broken down. The High Court there observed how the cessation of the parties’ cohabitation was not determinative of whether their de facto relationship had broken down (at [32]–[36]), but that is really to say no more than the Act already does (s 4AA(3) and s 4AA(4)). More significantly though, the High Court deliberately abstained from either endorsing or contradicting the proposition earlier embraced by the NSW Court of Appeal that a de facto relationship cannot be found to exist if the parties have never lived together (Fairbairn & Radecki at [40]), which is the factual situation at hand.
As the Full Court recently observed in Shelby & Rylan [2022] FedCFamC1A 143:
19.The High Court has arguably clarified that parties do not need to live together in order to be in a de facto relationship if they are sharing life as a couple. This however does not mean that every couple sharing life is necessarily living in a de facto relationship. The Court must have regard to all of the evidence, including to the matters referred to in s 4AA(2) of the Act. On one view, the phrase “sharing life” is simply a general summary of the s 4AA(2) circumstances.
The primary judge correctly enunciated the legal principles by which her Honour was bound (at [17]–[24]). At that point in the reasons for judgment, her Honour referred to the provisions of the Act and to Fairbairn & Radecki. The primary judge specifically and correctly noted, by reference to s 4AA(3) of the Act:
22.No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the parties were in a de facto relationship. None of the matters referred to in section 4AA(2) has precedence over any other, nor must all necessarily be found before a finding of a de facto relationship is made. The Court is entitled to have regard to such matters, and attach such weight to any matter, as may seem appropriate in the circumstances.
(Footnotes omitted)
It is not apparent from the reasons for judgment that the primary judge then acted contrary to the governing principles her Honour cited, as the appellant submits occurred. As is required by s 4AA(2)(b) of the Act, the primary judge examined the evidence about “the nature and extent of [the parties’] common residence” (at [70]–[109]), finding:
70.It is accepted that the parties maintained separate residences in Melbourne for the duration of their relationship, however, there is some dispute as to why they never lived together.
…
80.Regardless of the various disputes between the parties as to the reason why they did not live in a shared residence or spend more overnight time together whilst in Melbourne, it is clear that the parties did not spend any significant overnight time together let alone live in a common residence even when they were both present in Melbourne.
…
87.Accepting that the parties spent somewhere in the vicinity of 10 overnights a year together when in Melbourne, on average each year they spent more overnight time together whilst overseas.
…
103.It is not contested that the parties maintained separate primary residences in Melbourne throughout the duration of the relationship. …
…
108.I find that the parties did not share a common residence at any point during the relationship, this is not determinative of the seminal question but does form part of the composite picture.
(Emphasis added)
The finding expressed within [108] blocks the success of this ground. The primary judge heeded the High Court’s admonition in Fairbairn & Radecki as to how the lack of cohabitation did not foreclose the appellant’s proof of the alleged de facto relationship by reference to other salient factors (at [20]–[24]) but, consistently with the law, acknowledged how the lack of a common residence was part of the “composite picture” her Honour was obliged to form on the whole of the evidence (Sinclair & Whittaker (2013) FLC 93-551 at [55]).
The composite picture of the relationship formed by the primary judge has already been identified in these reasons: the parties never shared a common residence, they did not spend any significant overnight time together, they did not see each other during the pandemic lockdowns even though they could have, they travelled more often separately than they did together, they did not intermingle their incomes, assets or financial resources, and the appellant was not as emotionally committed to the relationship as was the respondent.
There was no error of principle and this ground fails.
Grounds 7 and 8
These two grounds, which the appellant argued together, are pleaded as follows:
7.That the [primary judge] erred at law by misinterpreting the application of the principle expressed in Locke & Norton [2014] FamCA 811 at [65], by finding that there was “no mutual commitment between the parties as each party was committed to a different relationship”.
8.That the [primary judge] erred in making a finding (pursuant to Locke & Norton [2014] FamCA 811) that the partis were each “committed to a different relationship” in the absence of independent evidence to support such a finding.
As pleaded, the grounds allege another error in the application of legal principle. It is asserted that, by reliance upon Locke & Norton [2014] FamCA 811 at [165], the primary judge incorrectly required the appellant to prove the parties had a commitment to the same form of shared life, rather than a commitment to just a shared life of some sort.
In Locke & Norton, Rees J said this:
163.The respondent made a commitment to an arrangement whereby he and the applicant enjoyed a sexual and social relationship and he financially supported her.
164.The applicant had a commitment to a life where she and the respondent would eventually live together once they were married.
165.There was no mutual commitment between the parties. Each party was committed to a different relationship.
The appellant contended in the appeal, though not at first instance, that such observations of Rees J mis-state the nature of s 4AA(2)(f) of the Act, which provides as follows:
Working out if persons have a relationship as a couple
(2) Those circumstances may include any or all of the following:
…
(f) the degree of mutual commitment to a shared life…
(Emphasis in original)
The appellant submitted for a construction of s 4AA(2)(f) which requires advertence to the parties’ commitment to “a shared life”, which need not necessarily be a commitment to exactly the same kind of shared life. During the appeal hearing, the appellant was impelled to concede her inability to find any authority vindicating her submission and contradicting the observations of Rees J in Locke & Norton.
The respondent emphasised, in both opening and closing submissions to the primary judge, his reliance upon the observations made by Rees J about the need for mutuality in the parties’ commitment to their relationship as a central tenet of his case. As it transpired, the primary judge’s findings about the parties’ different attitudes to the nature of their relationship then became material to the judgment (at [275]–[280]), which paragraphs in the reasons distilled to this pithy finding:
279.…There was minimal, if any, degree of mutual commitment to the same shared life.
The ultimate test of a de facto relationship, as prescribed by s 4AA(1) of the Act, is whether the parties have a “relationship as a couple living together on a genuine domestic basis”. While one indicium of that test is the degree of the parties’ commitment to “a” shared life – as the appellant was keen to emphasise – their commitment must still be “mutual” (s 4AA(2)(f)), which requirement she tended to overlook. It is difficult to see how their commitment to a shared life could be mutual unless they were committed to the same type of shared life. Without such mutuality of commitment, it is just as difficult to see how the parties could be a “couple” in a “genuine domestic” sense (s 4AA(1)(c)).
The appellant sought to derive some support for the tight literal construction of s 4AA(2)(f) of the Act for which she advocated by relying upon this statement by Hallen J in Sadiq v NSW Trustee and Guardian [2015] NSWSC 716, where his Honour was referring to analogous provisions of State legislation:
205.Furthermore, in assessing the degree of mutual commitment to a shared life, it is not essential that there be entire harmony, entire fidelity, entire satisfaction with the relationship, or entire commitment; the degree of commitment may be high even though there are qualifications. Dissatisfactions, infidelities, expressed complaints, grievances, and less than entire commitment are often found in personal relationships, including marriages, and are not inconsistent with a relationship of two parties having a relationship as a couple living together, but not married to one another.
(Emphasis added)
The appellant’s faith in that quote was misplaced because it does not establish the point she sought to make. Hallen J unexceptionally observed how relationships are dynamic, not static, and how no relationship could ever perennially be in a state of entire harmony. But while the mutuality of commitment need not “entirely” correlate for the “entirety” of the time for the parties to be in a de facto relationship, his Honour did not gainsay the proposition that, without substantial overlap in the nature of parties’ individual commitments, their commitments could hardly be mutual. Parties can be dissatisfied with the health of their relationship from time to time and yet still be in an intact de facto relationship, whereas if they have fundamentally different ideas about the nature of their relationship then it is unlikely they are in any mutual form of relationship.
In Sadiq v NSW Trustee and Guardian, Hallen J found the plaintiff had not been in a de facto relationship with the deceased at the time of her death and he therefore had no claim upon the deceased’s intestate property under the Succession Act 2006 (NSW). That was because the evidence did not establish an “intertwining, or merging, or union, of their lives”, but rather only a relationship which was “utilitarian and pragmatic” (at [356]–[366]). The appeal from that judgment was dismissed (Sadiq v NSW Trustee and Guardian (2016) 14 ASTLR 577).
The defect in the appellant’s submissions is her assumption that the level of her commitment to this relationship was enough, as a baseline, to characterise it as a de facto relationship. That assumption underpins her contention the primary judge fell into error by expecting her to prove anything more. But there is no justification for the assumption. On the evidence, the primary judge found the respondent’s expectations were the baseline notion of a de facto relationship. He wanted more from the relationship than the appellant was prepared to give and so their relationship did not attain the level of a de facto relationship. Her Honour said:
343.I am satisfied that the composite picture of the parties’ relationship does not support that the [appellant] and the respondent were ever in relationship as a couple living together on a genuine domestic basis. I am satisfied that their relationship of 10 years and three months was always “something less than a de facto relationship”.
There is no inherent legal or factual error within that conclusion.
Pertinently, in Fairbairn & Radecki, the High Court said (at [39]):
…“Living together”, consistently with authority, should be construed as meaning sharing life as a couple. Section 4AA does not prescribe any way by which a couple may share life together. Its language is sufficiently broad to accommodate the great variety of ways a de facto relationship may exist. That conclusion is supported by the varied factors listed in s 4AA(2). In a given case, some of the factors listed in s 4AA(2) may be relevant and some may be irrelevant; inevitably some may have greater prominence than others….s 4AA(4) is a statutory recognition that what may constitute a genuine de facto relationship is not to be determined in the same way in every case by reference to rigid criteria that must always be satisfied. …
(Emphasis added) (Footnote omitted)
As was open on the evidence, the primary judge found the parties did not mutually intend to “shar[e] life as a couple”, which explication of the statutory test in Fairbairn & Radecki her Honour expressly referred to early in the reasons (at [20]). The respondent wanted both he and the appellant to share life as a couple, but she did not. That fact was uncontroversial. The appellant admitted she knew the respondent “yearned for a more committed relationship”, which the primary judge noted (at [67]). The only commonality or overlap of their respective intentions was to spend some time together. That was not enough.
Grounds 5 and 6
These two grounds, which the appellant argued together, are pleaded as follows:
5.That in making a finding as to the allegedly conditional nature of the Respondent’s financial support to the [appellant], the [primary judge] erred in relying upon an absence of independent evidence, rather than upon the independent evidence that was before the Court.
6.That the [primary judge] misapplied the principle espoused in Jones & Dunkel [1959] HCA 8, in that rather than drawing the inference that uncalled evidence would not have assisted the Respondent, the [primary judge] found that there could have been such evidence called that might have supported his case, and thereafter placed weight upon that possibility.
(Emphasis in original)
Ground 6 was abandoned as the appeal hearing started, but it is still worth discussing in aggregation with Ground 5 as both grounds are directed to the same point and both were addressed together in the appellant’s Summary of Argument.
Without intending disrespect, the meaning of the grounds is difficult to discern, though it is clear enough the appellant alleges the primary judge misapplied the principle espoused by the High Court in Jones v Dunkel (1959) 101 CLR 298.
The appellant’s Summary of Argument reveals how this complaint is directed to the paragraphs in the reasons for judgment where the primary judge discussed the evidence concerning the respondent’s financial support of the appellant, as was relevant to engagement of s 4AA(2)(d) of the Act. At that point, her Honour says this:
118.The parties did not intermingle their respective incomes, assets, or financial resources and did not operate a joint bank account or financially acquire property in joint names.
119.It is however uncontroversial that throughout the relationship the [appellant] was entirely financially dependent on the respondent, save for her receipt of government benefits.
120.Counsel for the [appellant] acknowledged that the respondent “provided significant financial support”, and was “very generous – financially generous” to the [appellant].
121.Counsel for the [appellant] posits that this financial support and the dependence it engendered is a particular feature of the alleged de facto relationship between the parties.
122.This contention is buttressed by the suggestion that during the parties’ relationship hiatus in 2013/2014 the respondent withdrew his financial support and again at the termination of the relationship in July 2023 the respondent withdrew his financial support of the [appellant]. However, it is clear that whilst the respondent reduced his financial support of the [appellant] following the termination of the relationship in July 2023, he continues to financially support her.
123.Conversely, it is the respondent’s position that his financial support of the [appellant] throughout the relationship was an ongoing attempt by him to procure or encourage a greater commitment from the [appellant] to the relationship. The respondent contends that he “always premised my financial assurances to [the appellant] on her giving me much greater commitment to our relationship, and to our situation resembling a marriage with a common domestic living arrangement”.
124.The [appellant] denied the respondent’s contention. Counsel for the [appellant] relies on the omission of such representations by the respondent in the text message exchanges between the parties and says that “none of these communications talk about it being conditional” in order to persuade the Court to accept the [appellant’s] denial in preference to the respondent’s contention. However, I note the parties also had WhatsApp, email, telephone and in person communications, specifically I draw attention to:
(a)the emails contained in Exhibits A1-1A and R4 in which the parties correspond regarding the applicant’s employment bio;
(b)the emails contained in Exhibit A1-1C the parties exchanged emails regarding the [appellant’s] desire to undergo fertility testing;
(c)the oral evidence of [Mr C Cizek] was indicating the parties discussed the [appellant’s] offer of employment at [B Company] over the phone; and
(d)the WhatsApp message exchange between the parties [in early] January 2021, extracted at paragraph [272] herein.
125.Such evidence supports that the parties had important communications between them other than by text message. Accordingly, I place little weight on the [appellant’s] denial and Counsel for the [appellant’s] contention. I prefer the evidence of the respondent.
126.Considering the juxtaposed positions taken by the parties in respect of the financial dependence of the [appellant] on the respondent it is necessary to take a longitudinal view of the financial support provided by the respondent to the [appellant] before, during and after the relationship.
(Footnotes omitted)
After noting how the parties did not intermingle their financial affairs (at [118]), the primary judge acknowledged the respondent’s generous financial support of the appellant, which the appellant submitted tended to support her case about the existence of a de facto relationship (at [119]–[122]). Conversely, the respondent contended his financial largesse was attended by his request for the appellant’s deeper commitment to their relationship (at [123]), which condition the appellant refuted (at [124]).
It should be understood at the outset that the primary judge did not refer to Jones v Dunkel in the reasons for judgment and did not purport to apply the principle. That was because the principle in Jones v Dunkel had no application. The unexplained failure by a party to call a witness may, depending upon the circumstances, permit an inference the uncalled witness would not have assisted that party’s case (Jones v Dunkel at 308, 312 and 320–321). The inference entitles the court to take the unexplained failure into account in deciding whether to more readily accept any other evidence bearing upon the fact in issue, but the principle does not permit an inference the uncalled evidence would in fact have been damaging or adverse to the party (Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 at 385).
But there was no uncalled witness in this case. The gravamen of the appellant’s complaint is the respondent did not adduce documentary evidence to corroborate the contention of his conditional financial support of her, which situation would be covered (if at all) by different evidentiary principles. The failure of a party to give or produce evidence which, in the circumstances, that party in his or her own interest would be expected to give or produce, warrants the conclusion that, if given or produced, the evidence would not support the party’s case (Katsilis v Broken Hill Pty Ltd (1977) 18 ALR 181 at 197). However, all evidence must be weighed and assessed having regard to the capacities of the parties to adduce and contradict it (Swain v Waverley Municipal Council (2005) 220 CLR 517 at [17]; Burke v LFOT Pty Ltd (2002) 209 CLR 282 at 330; Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at 454) and, here, the appellant had just as much capacity as the respondent to adduce evidence of the correspondence passing between them.
The appellant submitted that her denial of the respondent ever making his financial support of her conditional upon her showing him more commitment to the relationship was verified by the omission of any mention of such a condition in the text messages that passed between them (at [124]), but the primary judge did not find the submission convincing because the parties communicated in writing by means other than just by text messages about matters of importance (at [124]–[125]). Her Honour accepted the evidence-in-chief of the respondent (at [123], [135] and [186]), which was to this effect in his affidavit:
69.In the latter years of our relationship, [the appellant’s] expenditure became increasingly extravagant, almost uncontrolled, and I was at a loss as to how to put an end to it. In hindsight, I recognise I was probably trying to entice or convince [the appellant] into a de facto relationship with me, but I was also motivated by my strong feelings for her and what I wanted in terms of our relationship, and I was concerned about [the appellant’s] mental health – she told me about a “nervous breakdown” in 2022, although I am not entirely sure of what this entailed. [The appellant’s] constant paranoia, stress and anxiety, and lack of financial security, was a very weighty pressure, and I felt compelled to help her. I was also very worried about [the appellant] ending the relationship completely and suspected that any diminution in my financial support of her would result in a termination of it. Extracting myself from the financial expectation became a long, drawn-out process, even though I was sufficiently alarmed to consider seeking legal advice in January 2021. I always premised my financial assurances to [the appellant] on her giving me a much greater commitment to our relationship, and to our situation resembling a marriage with a common domestic living arrangement, and [the appellant] kept promising to include me more in her life. The cycle became never-ending. It became very difficult to extricate myself from the relationship, even after I began to recognise my wishes and hopes for a future together were not reciprocated.
(Respondent’s Affidavit filed 15 March 2024)
As can be seen, the respondent’s evidence about his financial support of the appellant was much more nuanced than her one-dimensional characterisation of it in the appeal. The respondent said he was motivated to financially support the appellant for a variety of reasons: he was trying to entice her into a more committed relationship; he felt compelled to help her due to his perception of her emotional fragility; he was worried that any diminution in the level of his financial support would cause her to end their relationship; and she kept promising to give him more involvement in her life.
In the appeal, the appellant submitted this:
36.The trial judge records that the Appellant denied the Respondent’s contention that he “always premised [his] financial assurance to [the appellant] on her giving me much greater commitment to our relationship, and to our situation resembling a marriage with a common domestic living arrangement”. However, the Respondent’s contention was not supported by any contemporaneous or independent evidence, despite there being in evidence hundreds of text messages and emails and WhatsApp messages between the parties spanning their relationship over a decade, and in the context of the Appellant having disclosed in excess of 90,000 messages exchanged between the parties. These messages were uninfected by each party seeking to protect or position themselves for the purpose of these proceedings.
(Footnotes omitted)
The submission is misconceived. The respondent’s evidence was capable of being accepted without “any contemporaneous or independent evidence”. Significantly, the respondent said their conversations concerning his ongoing financial support of the appellant were oral and he did not say any of the parties’ communications on the topic occurred by text message, so it is unsurprising he did not refer to text messages in that context. The appellant emphasised how the content of the text messages did not bear out the respondent’s evidence, but the submission was otiose because he did not assert they did. The respondent was neither corroborated nor contradicted by the text messages, which were entirely silent on the issue, so they did not assist either party. The primary judge referred to the text messages when discussing the issue only to meet the appellant’s submissions.
The appellant submitted this in the appeal:
40.In placing “little weight on the [appellant’s] denial and Counsel for the [appellant’s] contention” and preferring the evidence of the Respondent, the [primary judge] relied on the absence of evidence rather than the existence of evidence. Her Honour should have drawn the inference that the Respondent could have, and did not, produce messages, emails or other data that was corroborative of his assertion that his financial support was conditional upon the Appellant entering a marriage-like relationship with him. His failure to do so ought to have resulted in an inference that such data would not have assisted his case. Instead, the [primary judge] made a finding adverse to the Appellant, relying on the possibility of the existence of evidence that was not before the Court, which did not support the Appellant but rather, could have supported the respondent.
(Footnote omitted)
That submission is also misconceived.
The primary judge accepted and relied upon the evidence of the respondent set out in his affidavit – no more, no less. The primary judge did not rely upon “an absence of evidence”. The primary judge could not have drawn any inferences of the sort alleged by the appellant because the respondent did not assert there was any written message to corroborate his sworn evidence. There was no forensic failure by the respondent to adduce corroborative evidence when he neither asserted nor admitted such evidence existed. The primary judge did not make any “adverse” finding against the appellant on the issue. Her Honour simply accepted the respondent’s evidence in preference to the appellant’s rebuttal. These grounds are rejected.
Ground 9
This ground contends the declaration that there was no de facto relationship between the parties was “plainly wrong”.
The language of the ground is evocative of the last form of appealable error which lies from a discretionary judgment, as described by the High Court in House v The King (1936) 55 CLR 499 at 504–505 in these terms:
…The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure to properly exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. …
(Emphasis added)
In relation to that form of inferred appealable error, the High Court later said this in Norbis v Norbis (1986) 161 CLR 513 at 539–540:
It is, of course, not enough for [an appellant] to establish that [the appeal court] might, or would, have made a different order [from the primary judge]. … It is only where the [primary judge’s] decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong that an [appeal court] is entitled to interfere.
(Emphasis added)
Once accepted that this ground relies upon legal principles relating exclusively to appeals which lie from discretionary judgments, the defect in the ground becomes patent. The appealed judgment was not a discretionary judgment. Rather, it was an evaluative factual judgment (Colburn & Cleese (2022) FLC 94-105 at [32]; Lennon & Sanil (2020) FLC 93-962 at [8]). 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. Discretionary judgments are different because the law admits of more than one correct answer within a tolerable range (GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635 at [16] and [26]).
This being an evaluative factual judgment, the appeal from it is governed by the “correctness” standard rather than by House principles (GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore at [15]–[17] and [22]–[26]). Since the House principles have no application, no appealable error can be implied when no other form of frank legal or factual error can be identified. The appellant accepted that was so during oral argument and conceded this ground must therefore be dismissed.
DISPOSITION
The appeal is dismissed.
In the event of the appeal’s dismissal, the respondent sought an order that the appellant pay his party/party costs of and incidental to the appeal, which he assessed in the sum of $30,039.19, on the basis that the appeal was wholly unsuccessful.
The appellant resisted the order, but without sufficient reason. Undoubtedly, her financial circumstances are much less fortunate than those of the respondent, but she somehow managed to acquire $30,000 to pay as security for the respondent’s costs for the appeal and she then willingly incurred another $90,000 in legal costs to prosecute the appeal. Unsurprisingly then, she did not challenge the quantum of the respondent’s assessed costs when they were less than one-third of her own.
On 8 July 2024, the appeal registrar ordered the appellant to pay the respondent $30,000 by way of security for his costs of the appeal. The respondent’s party/party costs are rounded off at $30,000 and the costs order in his favour will be satisfied by him retaining the sum he has already received.
I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 5 September 2024
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