Cuan & Kostelac
[2017] FamCAFC 188
•12 September 2017
FAMILY COURT OF AUSTRALIA
| CUAN & KOSTELAC | [2017] FamCAFC 188 |
| FAMILY LAW – APPEAL – DECLARATION OF DE FACTO RELATIONSHIP – Appeal from declaration of a de facto relationship pursuant to s 90RD of the Family Law Act 1975 (Cth) (“the Act”) – Where the appellant challenges findings made by the primary judge pursuant to s 4AA(2) of the Act – Where the findings made by the primary judge were open on the evidence before him – Whether the primary judge erred in finding that hardship was established pursuant to s 44(6) of the Act – Whether the primary judge erred in finding that s 90SB(c) of the Act was satisfied – Whether delay in the delivery of reasons for judgment led to the primary judge failing to give adequate reasons or making unsafe findings – No appealable error established – Appeal dismissed – Appellant to pay the respondent’s costs of the appeal. |
| Family Law Act 1975 (Cth) ss 4AA, 44(5), 44(6), 90RD, 90SB, 90SM |
| Allesch v Maunz (2000) 203 CLR 172 |
| APPELLANT: | Ms Cuan |
| RESPONDENT: | Mr Kostelac |
| FILE NUMBER: | DNC | 608 | of | 2014 |
| APPEAL NUMBER: | NA | 84 | of | 2016 |
| DATE DELIVERED: | 12 September 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Strickland, Aldridge & Loughnan JJ |
| HEARING DATE: | 20 July 2017 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 18 October 2016 |
| LOWER COURT MNC: | [2016] FCCA 2689 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Birchall |
| SOLICITOR FOR THE APPELLANT: | Ward Keller Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Looney QC with Ms Harding |
| SOLICITOR FOR THE RESPONDENT: | Darwin Family Law |
Orders
The appeal be dismissed.
The appellant pay the respondent’s costs of the appeal as agreed or in default of agreement as assessed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cuan & Kostelac has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA84 of 2016
File Number: DNC608 of 2014
| Ms Cuan |
Appellant
And
| Mr Kostelac |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms Cuan (“the appellant”) appeals from a decision of Judge Baumann given on 18 October 2016 in proceedings between her and Mr Kostelac (“the respondent”). On that day his Honour made a declaration that pursuant to s 90RD of the Family Law Act1975 (Cth) (“the Act”) a de facto relationship existed between the parties from April 2007 until late 2010. The effect of that declaration was that the proceedings, which had been filed by the respondent in December 2014, had been commenced out of time. Accordingly, the primary judge also determined that leave should be granted pursuant to s 44(6) of the Act to allow the respondent to institute property proceedings against the appellant.
The court dealt with the issue as to whether and for what period a de facto relationship existed between the parties as a threshold issue. As such, the respondent’s application for an adjustment of the parties’ interests in their property pursuant to s 90SM of the Act has not yet been dealt with.
Before the primary judge, the respondent contended that there was a de facto relationship between the parties, which began in April 2007 when the appellant commenced to live in the respondent’s premises at Town L and lasted until May 2014.
For her part, the appellant contended that there had never been such a relationship. It was her case that whilst she lived at the respondent’s premises, it was only from April 2007 until July 2008 and some months in late 2008 and early 2009 and July to October 2013. She asserted that she was a fly in fly out worker who returned from Town L to live with her children in City N for two weeks after each six week period of work and that she returned to live in City N permanently when her employment in Town L ceased. The arrangement in Town L was that she would live in the respondent’s flat rent free in return for looking after him, providing housekeeping and helping him to manage his money. Whilst she accepted that the parties became friends and later travelled overseas together between 2010 and 2014, she maintained that the relationship never moved beyond that.
The primary judge was therefore obliged to consider whether a de facto relationship existed in accordance with the provisions of s 90RD.
The definition of a de facto relationship is found in s 4AA of the Act and provides:
4AA De facto relationships
Meaning of de facto relationship
(1)A person is in a de facto relationship with another person if:
(a)the persons are not legally married to each other; and
(b)the persons are not related by family (see subsection (6)); and
(c)having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has effect subject to subsection (5).
Working out if persons have a relationship as a couple
(2)Those circumstances may include any or all of the following:
(a)the duration of the relationship;
(b)the nature and extent of their common residence;
(c)whether a sexual relationship exists;
(d)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e)the ownership, use and acquisition of their property;
(f)the degree of mutual commitment to a shared life;
(g)whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h)the care and support of children;
(i)the reputation and public aspects of the relationship.
The primary judge found that there was a de facto relationship between April 2007 and late 2010 after taking into account the following considerations:
·The parties shared a common residence in Town L from April 2007 to sometime in 2010. The latter date was arrived at by looking at, in particular, banking records which showed withdrawals by the appellant in City N and Town L at different periods, the addresses to which those accounts were sent and the appellant’s employment history (at [29]).
·A sexual relationship existed between the parties in Town L only. The primary judge was not satisfied that sexual relations were maintained consistently after 2010 (at [31]).
·Between 2007 and 2010 there was significant intermingling of funds. The appellant had authority to operate the respondent’s bank accounts. The primary judge was satisfied that substantial funds had passed from the respondent’s bank accounts to the appellant’s and had then been used by her to reduce mortgages over two properties she owned in City N. Her evidence that those transferred funds had been repaid or used for the benefit of the respondent was not completely accepted by the primary judge, who described her evidence on this issue as being “in some instances vague, unreliable or, in the case of the alleged repayment for funeral expenses of $30,000, simply unconvincing” (at [32] – [38]).
·The parties travelled overseas on a number of occasions between 2010 and 2014. The primary judge regarded this as being indicative of friendship only and not of a commitment to a shared life. When travelling the parties stayed in separate rooms except for one occasion when separate beds were arranged (at [40]).
·Albeit limited, the evidence of social interaction with other persons in Town L led the primary judge to accept that those people formed the view that the parties were a couple (at [44]).
·The evidence of the appellant’s children (who only met the respondent in 2010 and only in City N and overseas) that the parties did not appear to have a close or intimate relationship was consistent with the de facto relationship ending sometime in 2010 (at [45]).
The Appeal
We note that Ground 2, which challenged the primary judge’s finding that the geographical requirements in s 90RD of the Act had been satisfied, was withdrawn during the course of oral submissions.
Ground 1
This is a compendious ground which asserted the primary judge erred in finding that there was a de facto relationship at all or one that lasted in excess of two years (Grounds 1.1 and 1.2). It also asserted that the primary judge erred in making a number of factual findings (Grounds 1.3 to 1.10) and failed to have “any or any adequate” regard to the cases cited by the appellant.
As the appellant submitted that there was “no or no sufficient evidence” available to support the factual findings, it is necessary to set out the principles that apply when a court of appeal is considering such challenges.
Recently the High Court summarised them in Robinson Helicopter Company Incorporated v McDermott (2016) 331 ALR 550 at [43]:
The fact that the judge and the majority of the Court of Appeal came to different conclusions is in itself unremarkable. A court of appeal conducting an appeal by way of rehearing is bound to conduct a “real review” of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. But a court of appeal should not interfere with a judge's findings of fact unless they are demonstrated to be wrong by “incontrovertible facts or uncontested testimony” or they are “glaringly improbable” or “contrary to compelling inferences”. In this case, they were not. The judge's findings of fact accorded to the weight of lay and expert evidence and to the range of permissible inferences. The majority of the Court of Appeal should not have overturned them.
(Footnotes omitted)
See also Fox v Percy (2003) 214 CLR 118 at 125–8 and 146–7.
It is also the case that if a finding of a trial judge is properly open on the evidence, no error will be established.
Given the challenges in Grounds 1.1 and 1.2, it is also necessary to consider the nature of a finding that parties are in a de facto relationship.
In Sinclair & Whittaker (2013) FLC 93-551 (“Sinclair”) the Court said:
51.In coming to the view that a couple had a relationship as a couple living together on a genuine domestic basis the court is to have regard to all of the circumstances of their relationship. Those circumstances may include those specified in ss 4AA(2).
52.Sub-section 4AA(3) highlights that no particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the subject persons have a de facto relationship.
53.Sub-section 4AA(4) provides:
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.
54.Thus, whether or not a de facto relationship, as defined, exists will depend upon an assessment of all of the circumstances of the relationship, each to be given the weight the court thinks appropriate.
55.In Lynam v Director-General of Social Security (1983) 52 ALR 128 at 131 said:
Each element of a relationship draws its colour and its significance from the other elements, some of which may point at one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.
56.Many of the submissions put by the appellant in the appeal sought to place significant, if not determinative weight, on particular circumstances. Absent the identification of an error on the part of the trial Judge it is difficult for such submissions to succeed. Merely because another judge may have weighed the circumstances differently does not, of itself, demonstrate error.
Thus, again, if the finding of a de facto relationship is open on the evidence then no error will be identified, even if other judges may have come to a different conclusion.
The primary judge’s finding that the parties shared a common residence (Grounds 1.1, 1.2, 1.3, 1.5 and 1.6)
The appellant dealt with Grounds 1.1, 1.2, 1.3, 1.5 and 1.6 together and it is convenient for us to do the same. These grounds focussed upon the primary judge’s finding that the parties shared a common residence in Town L from April 2007 until late 2010.
The appellant submitted that the following 13 matters undermined both the finding as to common residence and hence the finding as to the existence of a de facto relationship:
a)When not working in Town L the appellant stayed in City N at her son’s house until late 2009.
b)In late 2009 she commenced living with her daughter in City N.
c)Between mid-2007 and mid-2008 the appellant kept only minimal personal possessions at Town L.
d)On 11 February 2008 the appellant’s employment in Town L was terminated.
e)From 10 April 2008 until 26 September 2008 the appellant received Newstart payments.
f)In July 2008 at a mediation in City N the appellant resolved the dispute with her former employer.
g)In July 2008 the appellant returned to City N to live with her son.
h)The appellant purchased a second property in City N in November 2008 in her own name.
i)The appellant returned to Town L in the latter half of 2008 and worked there from 10 December 2008 until 25 February 2009.
j)In April and May 2009 the appellant was living in City N.
k)From December 2009 until March 2010 the appellant was living in City N.
l)The appellant denied any sexual relationship with the respondent.
m)In June 2010, having retired, the respondent started to receive the aged pension at the single rate.
It is obvious that points a), b), g), k) and l) depend, at least in part, upon the acceptance of the appellant’s evidence. The primary judge, however, expressed a general preference for the respondent’s evidence where it conflicted with the appellant’s evidence and, as we have already recorded, found aspects of the appellant’s evidence to be unreliable or unconvincing (at [13], [29] and [37]).
The finding as to the existence of a sexual relationship indicates that the evidence of the respondent and Mr S on this issue was accepted over that of the appellant.
Whilst the primary judge largely accepted the evidence of the appellant’s children, he did so subject to the following caveat (at [10]):
… Again, my overall view of their evidence collectively is that they were seeking to be truthful, but dates were a little uncertain – and the blanket assertion about the mother “living permanently” in [City N] from 2007 is not consistent with the evidence, including that of [their mother]. To be fair, these adult children had their own lives to live. The mother was a fly in/fly out worker for part of her time in [Town L] – returning to see her children regularly.
None of these findings as to credit was challenged. Accordingly, weight cannot be given to at least points a), b), g), k) and l), and the force of the submissions is thereby greatly diminished.
The remaining points are consistent with the appellant living in Town L but less often as 2009 and 2010 passed. This is in turn consistent with the primary judge’s finding that after the appellant ceased worked in Town L in early 2009 “she maintained a common residence (but not exclusive) with the [respondent] in [Town L] until sometime in mid to late 2010” (at [29]).
When in Town L the appellant lived at the respondent’s flat – to that extent they shared a common residence because they lived in the one flat whether or not they shared a bedroom.
We do not consider that any or all of the 13 matters relied upon by the appellant render the primary judge’s finding that there was a common residence glaringly improbable or contrary to compelling inferences. Indeed, they are largely consistent with the primary judge’s findings that the appellant returned regularly to City N to see her children (at [10]), that after 2010 the appellant lived primarily in City N (at [24]), that from 2009 she had a room available to her in City N (at [29]) and, importantly, that the appellant had a common residence, but not exclusive, with the respondent in Town L until sometime in mid to late 2010 (at [29]).
In short, the finding of the primary judge that the parties had a common residence until mid to late 2010 was open on the evidence.
It is to be recalled that the existence of a common residence is not a prerequisite for a finding of a de facto relationship. Rather, “the nature and extent of their common residence” is but one circumstance which “may” be taken into account under s 4AA(2)(b) of the Act. No one circumstance is determinative: Sinclair at [56].
We note that the finding that the relationship ended in mid to late 2010 did not depend solely upon the end of the common residence but also on the absence of a sexual relationship after that date, the fact that funds were no longer intermingled, the change in the reputation and public aspects of the parties’ relationship and the degree of mutual commitment to a shared life.
For these reasons and those that will follow we consider that the finding that the parties had been a de facto relationship for that period was open on the evidence.
That the primary judge made no finding as to the end of the de facto relationship (Ground 1.4)
The appellant submitted that “it was incumbent upon the Court, having found a defacto relationship to have existed between the parties, to determine the date of the end of that defacto relationship and to explain that finding” (Appellant’s Summary of Argument at para 29).
We do not agree. Section 90RD(2) provides that the Court “may” declare the period or periods of the relationship or when it ended. It is not obliged to do so.
In any event, the primary judge did determine the end of the relationship as “late 2010”. Whilst not an exact date, the evidence did not permit the finding of a more precise date. Whilst some relationships might clearly end by reference to a specific event, many do not and instead simply peter out or limp to an end. Here, the accretion of factors that led the primary judge to be satisfied that there had been a de facto relationship fell away so that he was no longer satisfied that such a relationship existed by late 2010.
The appellant submitted that the primary judge erred by failing to “explain why a de facto relationship existed” as at 1 March 2009. Given that his Honour found that the parties had been in a de facto relationship from April 2007 until late 2010, to echo what the Full Court said in Cadman & Hallett (2014) FLC 93-603 at [52] in response to the same argument, “this would have been rather a pointless exercise”.
No error has been identified.
The finding of a sexual relationship (Grounds 1.7 and 1.8)
Under these grounds the appellant challenged the primary judge’s finding that there had been a sexual relationship between the parties and submitted that it should be “set aside”.
We pause to note that this was a consistent refrain from the appellant, namely that this court should “set aside” findings of the primary judge. However, this is a misunderstanding of what an appeal court does; an appeal court may set aside orders if the appeal is successful, but does not set aside findings. In any event, we will proceed with our discussion of these grounds.
It was submitted that the primary judge failed to have regard to the appellant’s evidence as to the end of the parties’ friendship in 2014 (which she said was because of a sexual advance made to her by the respondent at that time) or to the evidence of the appellant’s children. It was also submitted that the evidence of Mr S, a friend of the respondent, should not have been accepted.
The primary judge’s findings were:
Whether a sexual relationship exists
30.The Applicant says it did. The Respondent says they were never lovers and that the Applicant told her he could not “perform” sexual intercourse. I accept the evidence of Mr [S] that he saw the Respondent “nude” on two occasions in the Applicant’s residence, although how soon after 2007 this occurred is unclear. I accept it is not the sort of observation Mr [S] would forget. He also says he observed the Respondent’s belongings in the common bedroom. Whilst this evidence of Mr [S] is not conclusive, it does support the general evidence that the Applicant gave of intimacy between the parties. Inevitably evidence of sexual relations is rarely the subject of clear photographic evidence. This is a mature aged relationship and I am not able, nor do I need, to determine the frequency of sexual relations.
31.I am comfortably satisfied however that it did occur and most probably only in [Town L]. Certainly the Respondent’s children did not observe anything remotely sexual between the parties in [City N]. I accept although the parties had one room in [Country P] there were separate beds. I am not satisfied sexual relations were maintained consistently after 2010.
As to the first point, it is correct to say that the primary judge did not refer to the appellant’s assertions as to the cause of the end of the friendship in 2014. However, his Honour also did not refer to the reason given by the respondent for the end of the relationship (that is, that the respondent had discovered that the appellant was seeing someone else).
Clearly enough, the primary judge found neither assertion to be relevant because he found that the relationship ended in 2010.
A trial judge is not obliged to refer to every piece of evidence in a case: Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62]. That does not mean though that it has not been considered.
We accept that it was unnecessary for the primary judge to refer to this evidence; it was plainly irrelevant.
We turn then to the contention that insufficient weight was given to the evidence of the appellant’s children. We do not accept that this is an accurate analysis of his Honour’s reasons.
The second sentence of [31], as quoted above, is both an accurate summary of and an acceptance of the children’s evidence. That acceptance led to the finding made in the first and last sentences of that paragraph.
The evidence of Mr S on this issue was as follows:
7.I would visit [the respondent] at his place when he and [the appellant] were together. [The appellant] and [the respondent] were openly affectionate towards one another when I was around. They would touch and act like a couple. [The respondent] told me, “I love her.” I never got an idea that they were just friends.
8.I knew [the appellant] was sleeping in [the respondent]’s bedroom. I saw her things in his bedroom, in the cupboard and on the bed.
9.On two occasions I went over to [the respondent]’s and he opened the door and [the appellant] ran past in the nude. I think they were up to hanky panky (sex).
We note in passing that the primary judge declined to take and rule upon objections to evidence, but indicated that he would only give weight to admissible evidence. The appellant consented to that course. The first sentence of paragraph 8 above is clearly inadmissible as it lacks any probative value. The balance has some, even if slight, probative value and was therefore admissible although, as senior counsel who appeared for the respondent accepted, it might not be given significant weight: Britt & Britt (2017) FLC 93‑764 at [28] – [32].
However, the evidence of Mr S contained in paragraph 7 was not the subject of challenge in cross-examination or by contrary evidence given by the appellant (unlike his evidence in paragraphs 8 and 9). There was, therefore, no reason why it should not have been accepted.
Nonetheless, Mr S’s evidence was not given significant weight by the primary judge. His Honour did not regard it as “conclusive” but considered that it “support[ed] the general evidence” of the respondent (at [30]).
It is important to appreciate that early in the primary judge’s reasons, after referring to the witnesses called by each party and in very general terms to their evidence, his Honour said:
11.It follows from these findings of the witnesses that this case ultimately turns on the evidence of the parties and to some extent inferences that can be reasonably drawn about their relationship from some of the bank records and documents tendered.
It was submitted by counsel for the appellant that a plan of the respondent’s flat indicated that it would be unlikely that the appellant would have “run past” the front door in the nude. The appellant also relied upon the failure of the respondent to give any evidence as to him opening the front door to Mr S when the appellant was in the room nude.
Apart from the fact that the first suggestion was not put to either the respondent or Mr S in cross-examination and thus cannot be raised on appeal, we consider that none of these matters renders the finding made by the primary judge glaringly improbable or contrary to compelling inferences. Indeed they are nothing more than an invitation for us to come to a different view of the evidence, although we have not had the benefit of observing the witnesses give their evidence. The findings of the primary judge were open to him on the evidence. Error is not shown merely by persuading an appeal court that a different view was also open.
No error has been demonstrated here.
The reputation and public aspects of the relationship (Ground 1.9)
The respondent called three witnesses who gave limited evidence as to the interaction between the parties. The appellant submitted that, because of the limited contact these witnesses had with her, their evidence was “underwhelming” and that the evidence of the appellant’s children should have been accorded greater weight.
So stated, that is an insufficient basis for finding error.
The primary judge’s findings on this issue were:
44.Although the Applicant’s friends, I accept, had limited social interaction with the parties as a couple, I would also accept that from those limited early opportunities, they formed an impression the parties were a couple.
45.No evidence away from [Town L] goes that far, and the photographs (Exhibit 2) of the family trip to [Country P] of themselves do not satisfy me a de facto relationship existed after 2010 – although the parties remained friends until May 2014. Although it is likely the Respondent’s children are sympathetic with position of the mother there is no real inconsistency with their evidence about what they observed in [City N], [City D] or on holidays when the parties were together, with the finding I make that the de facto relationship finished sometime in 2010.
First, the primary judge noted the “limited social interaction” between the witnesses on the one hand and the parties on the other and that the witnesses had only had “limited early opportunities” to form an impression that the parties were a couple (at [44]). This qualification, when added to the primary judge’s caveats about the non-party witnesses which we have already discussed, indicates that limited weight was given to this evidence.
Secondly, these reasons indicate that significant weight was in fact given to the children’s evidence as to the nature of the relationship after 2010 (they only met the respondent in that year).
Of course, the weight to be given to particular aspects of the evidence is very much a matter for a trial judge.
No error has been identified here.
Failure to refer to authorities (Ground 1.11)
The appellant submitted that “by failing to consider over 30 years of authorities” the primary judge “failed to properly understand the concept of a couple living together on a genuine domestic basis”.
The primary judge recorded at [19] that he had been referred to many authorities but noted that “every case essentially fails or succeeds on its own facts”. We would be slow to infer that the authorities were not considered even though they were not the subject of an express dissertation.
The primary judge’s task was to apply the provisions of the Act and to determine whether a de facto relationship existed on the evidence by reference to s 4AA. This, his Honour did.
In any event, we consider the over 30 years of authorities to be of limited assistance. As the Court in Sinclair explained:
94.Comments made in the course of discussing facts are not to be elevated to the status of the provisions of the statute or substituted for the statutory test. This is because, taken on their own, they either add nothing to the statutory test or, if they do, they are adding an impermissible gloss. Thus it is not appropriate to consider the facts other than in the light of the statutory test.
95.It is also to be remembered, perhaps making the task of a trial Judge applying s 4AA more difficult, that the nature of relationships and commitments for both married and unmarried couples find expression in many different domestic arrangements. The application of the statutory criteria to reach a conclusion must be done judicially. It is difficult, absent error, for an appeal court to interfere, even if it would not itself have reached that conclusion.
We do not see that the failure to refer to all of these cases led the primary judge into error in his approach to the matter.
Conclusion in relation to Ground 1
It follows from what we have said that we find no merit in any of the specific aspects of Ground 1 which we have already discussed. It remains to add that we are not satisfied that any of the matters raised by the appellant indicate that the finding of a de facto relationship was glaringly improbable or contrary to compelling inferences. The finding of a de facto relationship is quintessentially one for a trial judge. In this case, that finding was open on the evidence.
It follows that this ground does not succeed.
Ground 3
Did the primary judge err in finding hardship for the purpose of s 44(6)?
The proceedings were commenced on 19 December 2014. As the de facto relationship was found to have ended in late 2010, the proceedings were not brought within the period of two years after the end of the relationship (s 44(5) of the Act) and leave to commence them out of time was required.
Section 44(6) provides:
(6)The court may grant the party leave to apply after the end of the standard application period if the court is satisfied that:
(a)hardship would be caused to the party or a child if leave were not granted; or
(b)in the case of an application for an order for the maintenance of the party--the party's circumstances were, at the end of the standard application period, such that he or she would have been unable to support himself or herself without an income tested pension, allowance or benefit.
The primary judge granted leave under this subsection, being satisfied that the respondent would suffer hardship if leave was not granted.
The appellant submits that the primary judge’s findings of hardship and that leave should be granted were attended “with little or no analysis” of the evidence as to the parties’ finances. The submission continued that if a proper analysis was undertaken, there could be no finding that the movement of funds from the respondent’s accounts to the appellant’s and thence to reduction of mortgages on the two properties owned by her represented a substantial contribution to that property by the respondent.
It is well established that hardship may be found when the applicant has a prima facie claim worth pursuing or one which has a real probability of success which would otherwise be lost: Sharp v Sharp (2011) 50 Fam LR 567 (“Sharp”) at [18].
The primary judge’s findings were:
49.Although this issue was not strenuously argued (the Applicant of course contending the de facto relationship continued to May 2014; the Respondent contending there was no de facto relationship), the Applicant’s Financial Statement filed 19 December 2014 reveals he has limited assets ($16,500) and an income only from the aged pension.
50.In circumstances where I am satisfied that the Applicant’s funds, moved as they did from his account to the Respondent’s account, represented a substantial contribution (in the context of his financial circumstances), I find hardship to him would exist if leave were not granted.
51.Certainly I can accept that any claim that continues against the Respondent, who I infer relies on her Government benefits and rental income, will engage her in further expenses in litigation that she may find difficult to meet.
52.However, in my final analysis, justice is not likely to be served if the Court does not permit these proceedings to continue on the basis of the short yet established de facto relationship and the movement of funds (even through the Applicant effectively allowed it to occur) between the parties.
53.It will be a matter for the substantive proceedings for the Respondent to both establish (with more particularity then a jurisdictional hearing compels), how she used the funds she received; what other sources of nett income were available to her and to establish what she asserts were payments by her back to the Applicant.
This discussion must be seen in the light of the previous findings of the primary judge:
37.Suffice it to say however, the evidence establishes substantial and at times regular funds passed from bank account/s of the Applicant to the Respondent and the evidence of how many of these deposits were either used by the Respondent (or repaid to the Applicant) was in some instances vague, unreliable or, in the case of the alleged repayment for funeral expenses of $30,000, simply unconvincing.
38.I am satisfied at least between 2007 and 2010, significant intermingling of funds occurred, which was consistent with an ongoing trusted and intact relationship.
The appellant’s evidence was that $93,000 passed from the respondent’s accounts to hers and that a significant part of these funds were used by her to reduce the mortgages on the two properties she owned in City N. She said that of this, $30,000 was the repayment of a loan made by her to the respondent (this is referred to at [13] of his Honour’s reasons) and that the balance of $63,000 was either repaid by her to the respondent or spent by her for his benefit.
It follows, therefore, from his Honour’s findings that this evidence was not accepted by him. Thus the primary judge was not satisfied that all of the $93,000 had been repaid and thereby concluded that the respondent at the least had a claim that the balance that had not been repaid had reduced the appellant’s mortgages. Accordingly this is a finding of a contribution to the appellant’s assets. As the respondent was entirely bereft of assets of his own, that claim could easily be described as substantial in the context of this particular matter.
It is appropriate here to record that the appellant also made the submission that the primary judge erred in not arriving at a precise figure for the contribution. We do not consider that in this case such a finding was necessary. The primary judge was obliged to consider the degree of financial dependence or interdependence and any arrangements for financial support between the parties (s 4AA(2)(d)). This the primary judge did. Whilst his Honour could have found a precise figure for the contribution by the respondent to the appellant’s mortgages we do not consider that on this threshold issue he was obliged to do so.
The appellant complained that the primary judge also erred by only dealing with the issue of hardship and by not considering any other matter relevant to the grant of leave and in particular explaining any delay in seeking leave (for example see Sharp at [76] and following).
It is true that the primary judge did not do so but it is equally true that a trial judge need only engage with the issues that are raised (see Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [58] – [59]; Bennett and Bennett (1991) 92-191 at 78,266 – 78,267).
The appellant’s submissions to the primary judge on this issue were sparse indeed. In the course of 47 pages of Submissions in Reply they consisted only of:
1.5That if the application has not been made within 2 years after the end of the de facto relationship then the Court may grant to the Applicant leave to apply, but only if the Court is satisfied that hardship would be caused to the Applicant if leave were not granted (see s.44(6) of the Family Law Act).
…
17.8Alternatively, pursuant to s.44(6) of the Family Law Act, the Applicant has failed to establish that hardship would be caused to him if leave were not granted to apply.
In his submissions replying to the appellant’s, the respondent sought leave under s 44(6) in the event the de facto relationship was found to have ended in 2010. In turn, in her response to those submissions, the appellant raised no matter of substance but merely objected to the submission being made as it should have been made earlier. No prejudice was identified by the appellant.
In that circumstance it can be seen that the primary judge engaged with the issues raised by the parties.
The finding of hardship was open on the evidence and, in the light of the matters raised by the appellant, his Honour’s reasons were adequate. In any event, we observe that lack of reasons was not a complaint raised in this ground of appeal.
The appellant also pointed to the lack of any explanation by the respondent for the delay between the end of the relationship and the commencement of the proceedings. However, this was not a matter that was raised before the primary judge, so it is not surprising that his Honour did not discuss this issue. We do not consider that it is of any consequence in any event, as the delay is explained by the nature of the respondent’s case itself. He contended that the de facto relationship continued until May 2014. Had he been successful in that contention the proceedings would have been commenced within the time prescribed by s 44(5) and leave would not be required. It was only in the course of written submissions that the possibility of a finding that the relationship ended earlier arose and leave was sought in the respondent’s submissions in reply, in the event it was required.
No error has been established here.
Ground 4
Did the primary judge err in finding that s 90SB(c) was satisfied and were adequate reasons provided for that finding?
This ground can be dealt with briefly.
Section 90SB provides that an order may only be made under s 90SM if the Court is satisfied that one of the three conditions set out in the section is met. As there was a finding that the period of the de facto relationship was at least two years in duration, the terms of s 90SB(a) were met. It follows that any consideration of s 90SB(c) was otiose. Any error if there be one, therefore, whether due to incorrect findings or lack of reasons, could not be material as the finding under s 90SB(a) would continue to stand.
This ground does not succeed.
Grounds 5 and 6
Did the delay between the hearing and the delivery of reasons impair the primary judge’s capacity to assess the evidence and issues and lead to a failure to make relevant findings of fact?
The appellant submitted that:
110.Whilst it is acknowledged that mere delay is not a ground of appeal, the Appellant contends that delay in this case affected the decision in that the learned trial Judge:-
(i)failed to provide reasons for his decision under Section 90SB(c) of the Act;
(ii)failed to provide reasons for granting leave, pursuant to Section 44(6) of the Act;
(iii)failed to discuss and determine, to a satisfactory extent, significant disputes between the parties as to their finances;
(iv)failed to conduct any discussion or analysis as to the authorities concerning a defacto relationship and, in particular, given the evidence of the parties living separate and apart, why this case nevertheless amounted to a defacto relationship;
(v)failed to explain his decision concerning the geographical requirements of Section 90RD;
(vi)failed to determine the date of the end of the defacto relationship and failed to explain why.
111.The various criticisms by the Appellant about the lack of scrutiny of the Respondent’s witnesses and the failure to give sufficient weight to the evidence from the Appellant’s children are likely to be explained by the delay.
For the reasons we have already given, we consider that the primary judge’s reasons for granting leave were adequate, that any errors as to s 90SB(c), if indeed they were errors, were not material, that there was no error as to the finding of the date of the end of the relationship and that there was no error in failing to discuss the cases referred to by the appellant. Thus, we do not accept that there were failures as asserted in paragraph 110(i), (ii), (iv), (vi) of the appellant’s submissions.
As Ground 2, which encompassed paragraph 110(v), was abandoned, the only challenge raised in paragraph 110 that remains to be considered is paragraph 110(iii).
The relevant legal principles as to when delay can be relied upon to impugn a trial judge’s decision have recently been summarised in Selwood & Selwood [2016] FamCAFC 40. In that case, the Full Court, referring to Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17, said as follows:
97.It is incontrovertible that delay of itself is not a ground of appeal, and nor does delay of itself indicate that a trial has miscarried or that the decision is unsafe (Expectation at [69]).
98.Thus, to succeed it needs to be demonstrated for example that because of the delay the trial judge has “lost an understanding of the issues” (Expectation at [72]), and in short, that the delay has affected the decision.
In Wallis & Manning (2017) FLC 93-759 at 77,030, the Full Court further observed:
10.As is accepted by counsel for the wife in his written outline of argument, delay is not, of itself, determinative of, or necessarily indicative of, the necessity for appellate intervention; “delay, however undesirable, does not itself mean that on appeal a different result is substituted or a new trial ordered”. However, a lengthy delay between trial and judgment requires an appellate court to “look with special care at any finding of fact challenged on appeal”, or to subject the trial judge’s reasons to “closer than usual scrutiny”.
…
12.Thus, while the “label of delay adds little” it should be accepted that delay can infect the decision-making process: “[w]hat must be considered is the effect of the passage of time on the quality of the decision-making”. Importantly that can include “the perception of an effect”. As the Western Australian Court of Appeal has said:
… a long delay can give rise to disquiet … because of the suspicion, on the part of the losing party, that the task may have become too much for the trial judge and that he or she had been unable, in the end, to grapple adequately with the issues.
(Footnotes omitted)
The primary judge had the benefit of extensive written submissions – the respondent’s submissions and submissions in reply were 27 and 25 pages long respectively and the appellant’s were 47 and 9 pages long. Each dealt at length with the evidence.
The submissions engage in a detailed analysis of the appellant’s various bank records and, in particular, to the addresses to which they were sent and the periods when withdrawals were made in Town L and City N.
Nevertheless, the appellant submits that because of the delay these issues were not properly canvassed in his Honour’s reasons.
For example, the appellant relied upon the bank records that demonstrate the fact that the appellant had various bank statements sent to addresses in City N from 2009 and 2010. This, however, does not overcome the incontrovertible fact that until 31 March 2010 the accounts for her Streamline e-Access Account were sent to the respondent’s address in Town L and until 30 June 2010 the accounts for her home loan were sent to the respondent’s address and then to a post office box in Town L. That, of course, provides some support for the primary judge’s findings that the appellant was living in Town L in 2009 and 2010.
We have already referred to the finding of the primary judge, made in part on the basis of these records, that the appellant “maintained a common residence (but not exclusive)” in Town L with the respondent until late 2010. This suggests that the primary judge was well aware of the bank records and had, indeed, taken them into account.
The appellant submitted that that primary judge erred by not finding the precise amount of the respondent’s financial contribution to the appellant’s property and that this failure was due to the delay in delivering reasons.
As we have already explained, the acceptance by the appellant that she received $93,000 from the respondent and had failed to give evidence satisfactory to the primary judge as to the return of all of it was capable of justifying the findings that there had been an intermingling of funds and a substantial capital contribution by the respondent. That is sufficient for the evaluation of the degree of financial dependence or interdependence or degree of financial support between the parties, and the impact of that consideration on whether or not a de facto relationship had existed. We agree with the statements of the primary judge and the submissions of the respondent that there did not need to be a precise quantification of the amount of the respondent’s funds retained by the appellant for the proper determination of the jurisdictional issue, although such a precise quantification is likely to be necessary at the final property hearing.
We have also earlier discussed the primary judge’s approach to the witnesses called by the respondent and to the evidence of the appellant’s children and found no error.
The appellant did not point to any evidence which was obviously overlooked by the primary judge. Rather, the contention was that when the facts were properly analysed, a different result would have been arrived at. We accept that different judges may have looked at these same facts and properly arrived at a different result. That, however, does not establish error.
There is no merit in this ground.
Conclusion
Having found no merit in any of the grounds, the appeal will be dismissed.
Leave to appeal
We did not consider the appellant’s application for leave to appeal because we are of the view that the declaration made by the primary judge pursuant to s 90RD of the Act was a final order and that leave was not required.
Costs
The appeal was wholly unsuccessful. As was accepted by counsel for the appellant, the appropriate order for costs therefore is that the appellant pay the respondent’s costs of the appeal.
I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Aldridge & Loughnan JJ) delivered on 12 September 2017.
Legal associate:
Date: 12 September 2017
3
9
1