Daly & Vella
[2023] FedCFamC1A 70
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Daly & Vella [2023] FedCFamC1A 70
Appeal from: Daly & Vella [2022] FedCFamC2F 1330 Appeal number(s): NAA 261 of 2022 File number(s): SYC 1399 of 2022 Judgment of: ALDRIDGE J Date of judgment: 15 May 2023 Catchwords: FAMILY LAW – APPEAL – De facto relationship – Appeal from a declaration that a de facto relationship did not exist between the parties during the relevant period – Relevant considerations – Factual findings – Attribution of weight – Procedural fairness – Adequacy of reasons – No error of fact or law established – Findings open to the primary judge – Appeal dismissed – No order as to costs. Legislation: Family Law Act 1975 (Cth) ss 4AA, 90SB, 90SM
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 26, 32, 35, 36
Cases cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Fairbairn v Radecki (2022) 64 Fam LR 604; [2022] HCA 18
Herford & Berke (2019) 60 Fam LR 22; [2019] FamCAFC 99
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Lee v Lee (2019) 372 ALR 383; [2019] HCA 28
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Minister for Immigration, Citizenship and Multicultural Affairs v McQueen (2022) 292 FCR 595; [2022] FCAFC 199
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Sinclair & Whittaker (2013) FLC 93-551; [2013] FamCAFC 129
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Number of paragraphs: 139 Date of hearing: 17 April 2023 Place: Sydney The Appellant: Litigant in person Counsel for the Respondent: Mr Foster Solicitor for the Respondent: BTF Lawyers ORDERS
NAA 261 of 2022
SYC 1399 of 2022FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS DALY
Appellant
AND: MR VELLA
Respondent
order made by:
ALDRIDGE J
DATE OF ORDER:
15 may 2023
THE COURT ORDERED ON 17 APRIL 2023 THAT:
1.The Application in an Appeal filed on 30 March 2023 is dismissed.
THE COURT FURTHER ORDERS THAT:
1.The appeal is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Daly & Vella has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
INTRODUCTION
This is an appeal from a declaration made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 17 November 2022 in the following terms:
1.Pursuant to section 90RD of the Family Law Act 1975, a de facto relationship did not exist between the [appellant] and the Respondent between January 2018 and March 2020.
The appellant, Ms Daly, challenges the making of that declaration.
APPLICATION IN AN APPEAL
Shortly prior to the hearing of the appeal, the appellant filed an Application in an Appeal on 30 March 2023, seeking that I “state a case” for the consideration of the Full Court. The application did not identify any question of law or principle that would be put to the Full Court or attach a draft stated case. Rather, as her supporting submissions make clear, her position was that this was an appeal that should be properly be heard by three judges rather than one. In making that submission, the appellant relied upon a decision of Kent J in Herford & Berke (2019) 60 Fam LR 22 where his Honour expressed his discomfort to whether he should continue to hear as a single judge, an appeal on a question of whether a de facto relationship existed, as that “would entail me as a single judge effectively offering a second opinion on the same or similar facts as were considered by the trial judge” (at [5]).
Any such diffidence a single judge may have about conducting such an appeal is now of now of no relevance. Section 32(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) provides:
Appeals heard by Full Court or a single Judge
(1) Subject to this section, the appellate jurisdiction of the Federal Circuit and Family Court of Australia (Division 1) is to be exercised by:
(a)in relation to a judgment of the Federal Circuit and Family Court of Australia (Division 2) or the Magistrates Court of Western Australia:
(i) a single Judge; or
(ii)if the Chief Justice considers that it is appropriate for the appellate jurisdiction of the Federal Circuit and Family Court of Australia (Division 1) in relation to the appeal to be exercised by a Full Court--a Full Court; and
(b) in relation to a judgment of any other court--a Full Court.
Certain applications etc. generally heard by a single Judge
In this case, the Chief Justice has not considered that it was appropriate for the jurisdiction to be exercised by a Full Court, hence the listing before me. The appeal, as presently constituted, does not raise issues that would justify a reconsideration of that position.
I would respectfully add that in determining this appeal, I am not offering a second opinion of the facts, but considering whether a legal or factual error has been made which has resulted in a miscarriage of justice, which is quite a different consideration.
The application is therefore misplaced and it was dismissed on 17 April 2023. The above are my reasons for doing so.
BACKGROUND
In order to understand the grounds of appeal, it is helpful to give some limited background to the matter.
The appellant sought a declaration that the parties were in a de facto relationship between January 2018 and March 2020. In the alternative, she argued that she had made substantial contributions under s 90SM(4)(a), (b) or (c) of the Family Law Act 1975 (Cth) (“the Act”) and that the failure to make an order in her favour would result in a serious injustice to her as identified in s 90SB(c).
The primary judge accepted that the parties were in a relationship of some kind, between the dates asserted by the appellant, but that the evidence called by the appellant fell short of establishing that the parties had a relationship as a couple living together on a genuine domestic basis having regard to the matters set out in s 4AA(2) of the Act.
As to the alternative case, her Honour found that the appellant did not make substantial financial contributions to the property of the respondent, or make substantial direct or indirect non-financial contributions to the acquisition or conservation of the property of the parties. Her Honour found that there was no substantial homemaker or parenting contributions and concluded by stating that there was no evidence that the appellant would suffer any injustice by a declaration that the parties were not in a de facto relationship (at [74]).
GENERAL OBSERVATIONS
Before turning to the grounds of appeal, there are some general observations to be made. The Full Court explained the nature of a finding that there was or was not a de facto relationship in Sinclair & Whittaker (2013) FLC 93-551 (“Sinclair”) in the following terms:
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 LynamvDirector-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.
This is an appeal by way of rehearing (ss 26, 32, 35 and 36 of Federal Circuit and Family Court of Australia Act 2021 (Cth) as explained in Allesch v Maunz (2000) 203 CLR 172 at [20]–[23]) (in relation to repealed sections of the Act to the same effect). The obligation is cast upon the appellant to identify error on the part of the primary judge.
As the Full Court of the Federal Court of Australia explained in Minister for Immigration, Citizenship and Multicultural Affairs v McQueen (2022) 292 FCR 595:
17.… Where the appellate Court is satisfied error is established, then the Court is able, subject to such qualifications as those expressed in the authorities concerning the assessment of credibility and reliability of witnesses by a trial judge, to decide the issues in dispute between the parties, including what findings of fact should be made and what inferences should be drawn from the facts as found or agreed: Lee v Lee [2019] HCA 28; 266 CLR 129 at [55]-[56]; ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; 269 CLR 439 at [62]; Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93; 261 FCR 301 at [3]; Jadwan Pty Ltd v Rae & Partners (A Firm) [2020] FCAFC 62; 278 FCR 1 at [410]-[411]; Le v Scott [2022] FCAFC 31 at [2]-[3], [31]‑[32].
It is helpful to make some preliminary comments. The existence of such a de facto relationship is defined by s 4AA(1) of the Act:
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.
The balance of s 4AA directs the Court’s attention to specific matters that are to be taken into account when determining that such a relationship exists.
It has been well established that a relationship may exist that falls within the definition even if the parties to that relationship do not live together all the time. In Fairbairn v Radecki (2022) 64 Fam LR 604 (“Fairbairn”), the High Court said:
33.Living together for the purposes of s 4AA(1) will often, perhaps usually, mean cohabitation of some residence by a couple for some period of time. But cohabitation of a residence or residences is not a necessary feature of “living together”. That phrase must be construed to take account of the many various ways in which two people may share their lives together in the modern world. Two people, for any number of reasons, may not reside in the same residence, but nonetheless be in a de facto relationship in the sense required by s 4AA.
35.Two decisions support the proposition that physical cohabitation at a single home or homes is not a necessary feature of an ongoing relationship whether by way of marriage or otherwise; it is not an irreducible minimum that all relationships must exhibit.
39.The language of s 4AA of the Act and its reference to “living together” requires no different approach to determining whether a relationship exists of the kind defined. “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. A conclusion that a de facto relationship has ended may also arise because of factors not listed in s 4AA(2). Such a conclusion is mandated by s 4AA(3) and (4). In particular, s 4AA(4) is a statutory recognition that what may constitute a genuine de facto relationship is not be determined in the same way in every case by reference to rigid criteria that must always be satisfied. In that respect, the language of s 4AA(2)(b) does not assume that every de facto relationship must have a “common residence” to some “extent” and of some “nature”. Such a construction is entirely denied by s 4AA(3).
(Footnotes removed)
THE APPEAL
It was the appellant’s case that one of the features of the parties’ relationship was that she and the respondent lived together at a property in Suburb B for most of the period of the asserted relationship. Her Honour did not accept that to be the case. Her Honour found that whilst the respondent regularly visited and spent time with the appellant at the Suburb B property, he did not live there, but lived a property at Suburb C.
As we will see, many of the grounds of appeal attempt to challenge that finding. However, the appellant submits that the primary judge erred by not applying the above passages from Fairbairn because her Honour frequently considered and took into account where she found that the parties lived. Her Honour did not consider a case that the parties lived apart but nevertheless were in a de facto relationship.
That is not surprising because that was not the appellant’s case. She did not conduct a case that she and the respondent were in a de facto relationship in which she lived primarily at the Suburb B property and he lived at the Suburb C property. Such a living arrangement does not prevent the finding that the parties were in a de facto relationship. It was not considered by her Honour, even as a back up or alternative proposition because no such submissions were put to her by the appellant.
Thus, although the appellant contends that her Honour failed to consider the appellant’s fall-back position that there was a de facto relationship notwithstanding there was no common residence (Ground 36), that fall-back position was never put to her Honour. The appellant was unable to take me to any submissions made to the primary judge to that effect and I am unable to find any. That is a position therefore that cannot be pursued on appeal, particularly as it is likely that such a course may have altered the nature of the evidence the parties sought to adduce (Metwally v University of Wollongong (1985) 60 ALR 68; Suttor v Gundowda Pty Ltd (1950) 81 CLR 418).
Further, many of the appellant’s submissions were directed towards establishing that the parties were in a relationship. That is not in dispute. Her Honour found that the parties were in a relationship, but that relationship was not one that met the statutory definition. That is consistent with what the High Court said in Fairbairn as follows:
29.A de facto relationship will have broken down when, having regard to all the circumstances, the parties no longer “have a relationship as a couple living together on a genuine domestic basis”. Such a conclusion is not precluded by the presence of an ongoing relationship of some sort. That is not the inquiry. The question is whether a de facto relationship exists or has broken down.
(Emphasis added)
Finally, many submissions were put to me by the appellant to the effect that the respondent had lied.
It is plain enough that the primary judge did not accept the respondent’s evidence in full. For example, the respondent’s allegations and evidence that the relationship ended in June 2019 or alternatively August 2019. However, the essential point made by her Honour was that the appellant’s evidence fell short of proving the relationship fell within the statutory definition. The appellant was the moving party and she bore the onus of proving her case on the balance of probabilities.
In dealing with the appeal, I have had regard to a document headed “Submissions of [the appellant] in Support of Application and Affidavit in Appeal” which were attached to the affidavit in support of the Application in an Appeal. The submissions are not evidence, but an aide memoir. Counsel to the respondent objected to this document being received, because he had not had sufficient time to consider it properly. Nonetheless, I will take it into account as an aide memoir as it conveniently summarises the evidence that the appellant relies on in support of each aspect of the statutory definition. Its usefulness on appeal however, is limited, because its purpose is to persuade the reader that had they been hearing the case, they would have come to a different view than the primary judge. It is not directed to identifying error in her Honour’s decision. So, it can only become of particular use if and when an error has been identified and it is necessary for this Court itself to reconsider the evidence. Nonetheless, as I am required to undertake a “real review” of the evidence, it is of great assistance for that purpose (Lee v Lee (2019) 372 ALR 383 (“Lee v Lee”) at [55]).
GROUNDS OF APPEAL
Did the primary judge make an error of principle? (Ground 1)
For the reasons given earlier, the primary judge did not make an error of principle. Her Honour applied s 4AA of the Act in the light of the principles expounded in Sinclair and Fairburn.
The injunction sought by the appellant (Ground 2)
The primary judge did not mention that the appellant had sought an injunction that the respondent be restrained from decreasing his assets and liabilities. The appellant was not successful and therefore no occasion arose for the consideration of that matter, hence it did not require mention.
Did her Honour deny the appellant procedural fairness? (Ground 3)
The appellant submitted that she was denied procedural fairness by the primary judge, because her Honour failed “to ask questions to clarify from [Ms D] as to whether or not she had seen [the respondent] live in [Suburb B]”.
Ms D is the daughter of the appellant. She gave evidence that “during the duration that I lived and visited the [Suburb B] property, I recall my mother always paying for the groceries” and that “she also performed all of the cooking and cleaning when I was there” (Affidavit of Ms D filed on 15 July 2022, paragraph 7).
Ms D did not refer to the respondent living at the Suburb B property or give any particulars of the details of her mother’s living arrangements.
Ms D was not required for cross-examination. I can find nowhere in the transcript or the Appeal Book any application by the appellant for her to be recalled to give further evidence, or for the primary judge to direct her to come to court to answer questions as to whether or not the respondent lived at the Suburb B property. Of course, her Honour was under no obligation to undertake such a course and indeed it would be a most unusual step. It was for the appellant to adduce the evidence she thought appropriate to establish her case.
This ground fails.
Did her Honour err by “failing to consider with adequate reasons that the first issue to be determined is whether having regard to all the circumstances of their relationship [the respondent] and [the appellant] have a relationship as a couple living together (‘sharing life as a couple’) on a genuine domestic basis”? (Ground 4)
In this ground, as in many of them, the words “fail[ed] to consider with adequate reasons” appear. Almost invariably it is found that the primary judge did in fact consider the issue raised, but decided it adversely to the appellant. That aspect of those grounds must therefore fail. Secondly, there were no submissions directed as to why the reasons were inadequate. It is plain how her Honour dealt with the various factual issues in dispute and how the result was arrived at. Her Honour’s reasons are therefore adequate (Bennett and Bennett (1991) FLC 92-191; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110).
As to this ground, her Honour said:
17.The first issue to be determined is whether or not the parties lived together on a genuine domestic basis. If the answer to that is yes, the next issue is the period of time they lived together. The legislation defines a de facto relationship as a couple living together on a genuine domestic basis who are not legally married, nor related.
18.The legislation sets out matters which the Court may consider in order to work out if the parties are in a de facto relationship.
(Footnotes removed)
The submissions of the appellant did not extend to explaining why it is said these paragraphs are incorrect. Plainly, they identify the task before the court.
Did her Honour err by failing to “consider the following agreed facts: ‘We were the strongest couple on the planet no other 2 could come close to us’ ‘[The appellant] a good couple should be able to work together & sort shit out’ ‘What a loving wife will always do’ ‘Your to gorgeous for me my darling wife’ not disagreed by respondent”? (Ground 5)
At [19], her Honour set out a number of facts that were agreed.
The “agreed facts” referred to in this ground were not ignored by her Honour, who referred to text messages of this kind, of which there was a great number and at [59] added that “they frequently text messages to each other expressing love and affection”.
No error has been demonstrated.
Did her Honour err in failing to consider that the appellant was never asked to pay rent at the Suburb B property? (Ground 6)
The evidence was that the Suburb B property was owned by the respondent’s former wife. Her Honour said:
23.The [appellant] lived at the [Suburb B] property from January 2018. The respondent invited her to do so. She did not pay rent. She paid for utilities and groceries.
24.The property was in the name of the respondent’s former wife at the time the [appellant] resided there. The property is some acres, and semi-rural. There are horses kept on the property. There are two dwellings on the property. The larger dwelling was occupied by tenants, who paid rent to the respondent’s ex-wife. The smaller residence was occupied by the [appellant].
…
45.The [appellant] purchased groceries for the [Suburb B] property, which were shared with the respondent. Her daughter [Ms D] recalls her mother paying for groceries, cooking and cleaning at the [Suburb B] property. The [appellant] lived there rent free. I do not regard purchasing groceries and maintaining the property as significant in demonstrating financial interdependence, or providing financial support.
…
73.The [appellant] had the benefit of residing in the [Suburb B] property rent free. Her expenses were groceries and utilities. She continued her business through the relationship, and received some financial assistance from the respondent.
(Emphasis added)
It is difficult to understand what the asserted error in these paragraphs is said to be. In her Summary of Argument, the appellant said as to [23]:
… Her Honour failed to consider with adequate reasons that I was not paid by [the respondent] for more than 2 years of sex and if I was asked for rent I would not have entered into a relationship with [the respondent] as I could live with any of my daughters free of rent.
(Appellant’s Summary of Argument filed on 31 January 2023, p.8)
There was no suggestion the appellant was ever asked to pay rent.
In the ground itself, the appellant refers to text messages from the respondent that are consistent with him spending time, including having dinner at the Suburb B property. Again, that was not in dispute and was a finding made by her Honour.
This ground has not been established.
Did the primary judge err by identifying the issue as “whether or not the respondent lived” at the Suburb B property? (Ground 7)
As I have already noted, this was a significant factual dispute between the parties. Her Honour made that comment in the course of discussion of “the nature and extent of their common residence” set out between [23]–[41] and which was entirely concerned with the resolution of whether or not the respondent lived at the Suburb B property.
It was of course a significant issue, as it was a significant part of the appellant’s case. However, reading the above comment in context, it is clear her Honour was speaking on that particular aspect of the case and the particular issue being decided and not the matter overall.
There is no error.
Did her Honour err in failing to recall Ms D? (Ground 8)
This ground has already been dealt with above.
Did her Honour err by failing to consider the evidence of Ms E? (Ground 9)
Ms E’s evidence was summarised by her Honour at [27] and [28] and hence was considered. Ms E lived in Western Australia and had never visited the Suburb B property. However, in a conversation in January 2018, both the respondent and the appellant said they were in a relationship. That was not a matter in dispute. The evidence of Ms E did not go further.
This ground is not established.
Did her Honour fail to consider Ms F’s evidence? (Ground 10)
Ms F met the parties in May 2018 when she delivered flowers. On that occasion the appellant referred to the respondent as her partner. Although she said she met the parties thereafter, her evidence does not go further.
As her Honour noted, this evidence took the matter no further.
Did her Honour err by failing to consider the evidence of Mr G? (Ground 11)
Mr G was a former friend of the respondent, but there had been a significant falling out between the parties. In particular, Mr G said he visited the Suburb B property almost every day and that the appellant “would make breakfast for [the respondent] and me and do the cleaning up before [the respondent] and I would leave to complete our days’ work” (Affidavit of Mr G filed 17 May 2022, paragraph 3).
The appellant describes this evidence as unchallenged. That is entirely incorrect. Mr G’s evidence was subject to a vigorous challenge as to its creditworthiness which was successful. Her Honour found that his evidence, was inconsistent with other evidence, particularly a prior inconsistent statement given to the police by him. Her Honour did not accept that it was correct (at [76]).
Thus, the evidence of Mr G was put to one side.
There is no challenge to that finding, and indeed having regard to the cross-examination of Mr G was a finding that was readily open on the evidence.
This ground does not succeed.
Did her Honour err in failing to consider that the respondent gave evidence that he lived at a property on H Road? (Ground 12)
It is clear enough there were proceedings in the Supreme Court of New South Wales in which the respondent was involved during the relationship. In the course of those proceedings he gave evidence that he was living at a property on H Road.
This was not explored further in the evidence before the primary judge. It may be inconsistent with his evidence that he lived in a property at Suburb C, depending of the period and length of time he spent at H Road, if any, but it is also inconsistent with the appellant’s case that he lived with her at Suburb B.
In the absence of further evidence, it is difficult to know what to make of it. Clearly, it does not point to an error in her Honour’s findings, it remains simply something unexplained, but as I said, does not support the appellant’s case.
Further, her Honour is not obliged to refer to every piece of evidence in the case, particularly if it is of no assistance in its determination (Whisprun Pty Ltd v Dixon (2003) 200 ALR 447).
Finally, [32], which is the paragraph complained about, is actually a recitation of the respondent’s case, rather than her Honour’s findings. However, as her Honour ultimately made findings along those lines, I have dealt with it as a substantive point.
Did her Honour err by failing to consider that the respondent was a beneficial owner of the Suburb B property? (Ground 13)
As recorded by her Honour at [34], the evidence is that the property at Suburb B was owned by the respondent’s former wife. There were two houses on the property, the larger of which was rented out by the former wife (who received the rent). As her Honour accurately stated, there was no evidence that the respondent was the beneficial owner of the property.
It may be that, as part of a property division between the respondent and his former wife, if there was to be such a thing, that it was possible that the respondent might receive an interest in all or part of the Suburb B property, or otherwise have it taken into account in determining a just division. However, that is, of itself, insufficient to give him a beneficial interest.
This ground does not succeed.
Did her Honour fail to consider the evidence of Mr J and the respondent’s son? (Grounds 14 and 15)
The respondent called evidence from Ms K who lives on one of the two homes on the Suburb C property. Her evidence, as set out in her Honour’s reasons, was that the gate to the driveway is locked at all times, but that Ms K, her partner, the respondent and his son had keys to the gate. Ms K was generally at the property. Her evidence, which was accepted by the primary judge, was that although the respondent did not spend every night at the Suburb C property, “he was staying there and fed the animals” (at [39]). Ms K never saw the appellant at that property.
The appellant tendered an affidavit of Mr J, who is Ms K’s partner. That was an affidavit affirmed by him in April 2018 in Supreme Court proceedings. In that affidavit, Mr J refers to events that occurred at that property between September 2014 and 6 January 2017. Therefore, as her Honour said at [38], the affidavit does not assist the appellant.
In Mr J’s affidavit, he said he would see the respondent and other members of his family come over to the property “at least every two days to feed his animals” (Appellant’s affidavit filed on 15 July 2022, p.60).
The appellant submitted that because this affidavit was affirmed in April 2018, that was evidence of what was occurring on that date, or alternatively, the later date when it read in court. Obviously, that is not the case, and Mr J’s observations were limited to the period up to 6 January 2017. They do not demonstrate error.
The appellant also relied on a text message of 2 November 2019 which mentioned that the respondent had just spoken to his son who was talking about moving to Sydney. As we have seen, the appellant’s case was that the respondent’s adult son lived with him at the Suburb C property from time to time. The text message is not necessarily inconsistent with the finding made by her Honour and no error has been identified.
Did her Honour fail to consider that the respondent did not mow the grass or feed the animals at the Suburb B property, that the motor vehicle was used for business purposes and that the appellant’s and the respondent’s businesses were merged? (Grounds 16, 18, 19 and 20)
This somewhat compendious ground focuses on paragraphs [43]–[45] of her Honour’s reasons, but the points extend beyond them.
The unchallenged evidence was that the main house of the Suburb B property was let to tenants. The respondent described the area used by the appellant as “containing a studio style bedsit with a shower/toilet and kitchenette this was attached to a storage and carport area” (Respondent’s affidavit filed on 25 July 2022, paragraph 7). The respondent therefore said that there was little area for the appellant to maintain.
However, more importantly, the point made by her Honour was that the appellant “provided very limited information about her participating in work on the property” (at [44]). Photographs of animals on the property do not demonstrate that the appellant cared for them, contrary to the suggestion of the appellant who maintained that it could be inferred from the photo that it was she who cared for them.
Whilst the appellant may have mowed the grass on occasion, the primary judge did not accept that the appellant “maintained the property to any significant degree” (at [44]). Her Honour’s point, which was well made, with respect, was that the appellant’s evidence simply did not outline what she did. It was silent as to these matters.
It was also not in dispute that the respondent provided one of his business vehicles for use by the appellant. That does not demonstrate that their businesses were merged.
At the time the parties met, the respondent conducted a construction business and the appellant had a clothing business. It is clear enough from the evidence, that the respondent assisted the appellant by lending her money and paying for the lease of a retail outlet which involved preparation of signs, payment of insurance and other assistance.
The appellant submitted that their two businesses had been merged. A photograph of a sign advertising the clothing business on the back of one of the respondent’s vehicles does not establish this. There was no evidence to suggest that the businesses had “merged” and that would seem an odd thing to do given the disparate nature of their businesses and the accounting difficulties that would likely ensue. The taxation returns of the respondent and those of his company are entirely inconsistent with such a merger. In any event, the lack of evidence clearly supported her Honour’s findings.
Grounds 19 and 20 allege that the respondent was “director-trustee on behalf of [the respondent’s business] trading as [the appellant’s business]”. I do not understand what that means. There is no evidence of a corporate or trustee structure that merges both businesses. Helping each other’s businesses out from time to time is not a merger.
The primary judge did not accept the appellant’s assertions that she actively participated in the respondent’s business. Whilst she received some emails on his behalf, the evidence did not go beyond that, other than by bald assertions.
No error has been identified.
Did her Honour fail to consider the eternity and engagement rings? (Ground 17)
Whilst this error is asserted to have been made in [46] of her Honour’s reasons, that cannot be so because that paragraph refers to the discussion of a possible joint bank account.
The engagement is discussed at [60]–[62] where her Honour records the claim of the appellant that they became engaged on a cruise. The respondent denied that they were engaged. The evidence contains photographs of what could be engagement and eternity rings and certainly in some text messages, the appellant referred to herself as being engaged to the respondent or as being his fiancé almost always without objection or correction from the respondent.
The primary judge made no final finding about this, but after referring to the evidence said:
62.…Even if the respondent proposed to the [appellant], that of itself does not mean they were in a de-facto relationship, as defined in the legislation.
That must be so. Parties often become engaged with none or very few of the statutory criteria for a de facto relationship being met.
More importantly, for present purposes, the primary judge recorded that although the appellant said she had informed family and friends, there is no evidence from them, including from her daughter, that they were aware of the engagement. There are no messages of congratulations, engagement celebration or discussions about the wedding.
Thus, it could not be found that the parties’ presented themselves to the world as an engaged couple intending to get married. A statement by the respondent to the appellant’s daughter in February 2018 that he “would like to marry her” does not take the matter any further (at [61]).
This ground has not been established even if the parties had become engaged.
Did her Honour err by failing to recall Ms D, or in failing to draw an inference under Jones v Dunkel by the respondent’s failure to call his brother-in-law and his mother? (Ground 21)
The first aspect of this ground has already been dealt with.
The appellant’s case was that in the course of the relationship, she provided care and assistance to the respondent’s brother in law and to the respondent’s mother. She said she cooked for them, cleaned their clothes and cleaned their homes. As the primary judge recorded, “other than those broad assertions, no specific details are provided in her affidavits” (at [50]).
The respondent’s case was that the appellant had never met either his mother or his brother in law, that the brother in law did not require care and that he himself had not provided care to him.
The appellant did not call evidence from any other person that supported her having given assistance to these two people. Plainly enough, the primary judge did not accept the appellant’s evidence. That was a course that was open to her.
The appellant did not cross-examine the respondent as to any failure to call these two witnesses (as to their availability to give evidence). The basis for a submission under Jones v Dunkel (1959) 101 CLR 298 was therefore not made. Further, no submissions along these lines were made to her Honour.
No error has been identified.
Did her Honour err by finding that there was no evidence that the respondent ever met the appellant’s son? (Ground 22)
The appellant relies on a photograph of herself with a younger male at a beach. In another text message exchange, the respondent inquires “how is your lunch with [your son]?” (Appellant’s affidavit filed on 15 August 2022, p.48). Neither of these matters establish that the respondent had met the son.
This ground is not made out. In any event, it is difficult to see the materiality of error if there was but one meeting.
Did her Honour err failing to consider the evidence of Ms D as to the respondent’s intentions? (Ground 23)f
At [55] her Honour recorded that in February 2018 the respondent asked Ms D to call him dad, said he would like to marry her mother and to take her and her family as his own. This does not of itself establish that the parties were in a de facto relationship. It is part of the picture, but no more than that, and cannot be seen in isolation.
No error is identified.
Did the primary judge err in finding that the respondent did not spend Christmas in 2018 and 2019 with the appellant, but interstate instead? (Ground 24)
Her Honour found:
56.There is evidence that the respondent has a good relationship with his children. It is agreed that the respondent spent Christmas every year of the relationship away from Sydney with his children. The [appellant] did not attend.
57.In February 2020 the first met the respondent’s daughter […]. She attended the [retail outlet] conducted by the [appellant]. The [appellant] says that the respondent introduced her as “this is [the appellant]. She is going to be my new wife”. However, there is no reference to that in the text messages between the parties about the meeting, nor that that [the respondent’s daughter] was told they were to marry. I accept that [the respondent’s son] lived off and on with his father at the [Suburb C] property. The [appellant] does not refer to any relationship with the respondent’s son […].
The appellant asserts that the primary judge failed to take into account the text messages and photos that establish that the appellant spent Christmas in 2018 and 2019 with the respondent.
Whilst there are many photographs of the parties together, I was not taken to any evidence that indicated that the two Christmases were spent together.
I have already dealt with the assertions relating to the respondent’s son living at the Suburb C property. Again there was no cross-examination directed to whether or not either the son or any of the children of the respondent should be called. However, given the state of the evidence, particularly that of the appellant, there was no obligation to do so.
Again, this ground is not made out.
Did her Honour err in failing to call a second hearing as to the parties’ intention to have a child? (Ground 25)
Her Honour said:
58.The [appellant] asserted in submissions that she and the respondent intended to have a child, and had unprotected sex. This is not referred to in the [appellant’s] affidavits, and was not put to the respondent when he was cross-examined. I do not accept these assertions.
The respondent did not challenge the accuracy of what her Honour recorded.
Contrary to what is inserted in the ground itself, the fact that the appellant had no legal training or experience did not compel the primary judge to order a further hearing to enable the appellant to call further evidence and to engage in further cross-examination on this topic. This is sufficient to dispose of this ground.
On the appeal, the appellant submitted that the primary judge erred because the evidence did show that the parties were engaging in unprotected sex with the intention of having a child. This she said flows from the statement that the respondent made to Ms D that “he wanted to marry [the appellant]” (at [61]). The appellant submits that an inference should be drawn from this that they intended to have a child.
In addition, the appellant relied on two text messages, which read “not like that other prick you had, [could not] deliver to a beautiful woman like you” (Appellant’s affidavit filed on 15 July 2022, p.96). This was a reference by the respondent to the appellant’s former husband. The appellant asserted that what it means was that the respondent was stating that he was unlike her former husband who could not deliver a child to a beautiful woman like her.
The second message was “you know my blood is yours” (Appellant’s affidavit filed on 15 July 2022, p.105).
I do not see how these messages could possibly lead to an inference that the parties were having unprotected sex with the intention of having a child.
There is no basis for inserting those words or drawing the sought after inferences. The respondent was not cross-examined to suggest that the correct meaning of them was that contended for by the appellant.
This ground does not succeed.
Did the primary judge err by failing to consider the words “hubby”, “husband”, “wifey” and “wife” used by the parties? (Ground 26)
This ground has already been dealt with.
Did the primary judge err by failing to consider the text messages about the engagement? (Grounds 27 and 28)
I have already referred to her Honour’s finding that there was no announcement or celebration of the engagement at [80]–[85].
Under this ground, the appellant alleges that this was because, after returning from the cruise, the respondent started tracking her movements, which “destroyed the trust in the relationship”.
Although there was clearly evidence of a tracking device in the car provided by the respondent to the appellant, no evidence was called and there was no cross-examination to the effect that this was the reason that the engagement was not announced. Further, it does not explain why the engagement was not announced as soon as they were engaged or shortly thereafter their return, or indeed, mentioned at any time.
This ground is not made out.
Did her Honour err by failing to take into account the parties travelling together? (Ground 29)
Findings were made by her Honour that the parties went on holidays for one night on four occasions, a boat trip for a weekend and a week-long cruise. As pointed out by her Honour, that did not assist with determining the issues, because it was consistent with the relationship that was undoubtedly occurring.
Did the primary judge err in finding that the parties were not in a de facto relationship? (Ground 30)
Her Honour’s conclusion was that:
64.Considering all of the circumstances of their relationship considered above, I do not find that the parties lived together on a genuine domestic basis.
It is sufficient to say that this finding was clearly open on the evidence. The moment that a relationship moves to being a relationship that falls within the statutory definition is not always sharp or bright and is to be determined by evaluating the evidence as a whole, having regard to the statutory definition. This her Honour did and no error has been shown in her Honour’s reasoning.
It is for the appellant to identify and demonstrate error. In Bahonko v Sterjov (2008) 166 FCR 415, the Full Court of the Federal Court said:
3.Notwithstanding the obligation of an appeal court, where it is able to do so, to make its own evaluation of the material at first instance, it is a fundamental aspect of the appellate process that appeals are made available for the correction of error (see Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [14]; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [22]-[30]; Poulet Frais Pty Ltd v The Silver Fox Company Pty Ltd (2005) 220 ALR 211 at [45]). This basic principle imposes an obligation upon an appellant to identify where error is to be found in a judgment under appeal, whether it be an error of fact, law or general principle. It is not necessary for an appeal court to hunt through all the material at first instance and recanvass every aspect of it unless an occasion arises for suspecting, on reasonable grounds (generally those provided by the appellant), that such an examination may yield a conclusion of appellable error.
I am not satisfied that any of the grounds have been made out. There is no basis for suggesting that on any reasonable reading of her Honour’s reasons an error is involved. The conclusion was well open on the evidence and this ground does not succeed.
Did her Honour err in failing to consider the length of the relationship? (Ground 31)
As her Honour pointed out, such a finding was otiose given that no de facto relationship had been found to exist. However, it is clear enough from her Honour’s findings at [21] that the relationship, in the form it had, did continue until the early part of 2020.
Did the primary judge err in finding that the appellant did not make substantial financial contributions to the property of the respondent? (Ground 32)
This consideration arose from the alternative case of the appellant that the Court would find that there was a de facto relationship of less than two years which justified recognition.
The appellant submitted that her Honour erred by failing to consider:
·Bank account statements and credit cards (which the respondent asked the appellant to sign);
·The respondent’s company acted as trustee for and traded as the appellant’s business;
·The appellant did substantial business for the respondent’s home; and
·The appellant fed the animals on the Suburb B property and mowed the lawns.
I have already dealt with the subject matter of this ground. The tax returns and accounts of the respondent’s company through which he operated his building business were in evidence. They do not suggest any intermingling of the two businesses. Indeed the matters relied upon by the appellant which were set out at [66]–[69] of her Honour’s reasons fall well short of establishing such a merger.
The photographs and text messages relied upon by the appellant support her Honour’s findings and go no further.
This ground does not succeed.
Did her Honour err in finding that there was no evidence from the appellant which supported the parties having lived together at the Suburb B property on a genuine domestic basis? (Ground 33)
The appellant does not challenge that statement but asserts that the text messages, emails and affidavits on which she relied established her case.
As we have seen, very often, text messages and affidavits do not bear the meaning that the appellant seems to place upon them. The only evidence in support of the parties living together at Suburb B was that of the appellant herself, which was not accepted.
No error has been identified.
Did her Honour err in failing to find a de facto relationship of less than two years? (Ground 34)
In the reasons, her Honour said:
78.The court may find that a de facto relationship existed for a period of less than two years if there is a child of the de facto relationship, or the [appellant] has made substantial contributions of a direct or indirect financial contribution to the acquisition, conservation or improvement of any property of the parties to the de facto relationship or either of them, and failure to make the order would result in serious injustice. The [appellant] has not satisfied these matters.
Other than from the matters with which I have already dealt, the appellant did not identify why this finding was in error. Again, the conclusion was well open on the evidence and this ground is not made out.
Did her Honour fail to give proper weight to all of the evidence relied on by the appellant? (Ground 35)
As I have said, it is not necessary for a trial judge to refer to every piece of evidence and every argument relied upon by an applicant. The burden on judges, if that were to be so, would be intolerable.
There is no reason to think however, that her Honour was not cognisant of all of the material relied upon by the appellant. The fact that not of the evidence was found to be of assistance and was not mentioned does not mean that it was not considered or that the evidence had any weight whatsoever.
This ground does not succeed.
Did her Honour err in the outcome? (Ground 36)
This ground simply asserts that effectively there should have been a different outcome. That does not take the matter any further.
CONCLUSION AND COSTS
The appeal will be dismissed.
The respondent sought an order for the payment of his costs in the sum of $10,219. The amount was set out in a costs schedule filed on 14 April 2023, which was four days later than the time prescribed in the appeal judicial registrar’s directions. Ultimately, no satisfactory explanation was given as to why the registrar’s order was not complied with.
Compliance with orders for the provision of costs schedules is important because it gives the other party the opportunity to consider the costs schedule and to be able to make informed submissions as to costs at the conclusion of the hearing of the appeal.
Additionally, the evidence is that the appellant is in default of a business recovery loan of over $100,000 and is currently on Centrelink benefits. She has no property.
Taking these matters into account, it is appropriate in all of the circumstances that there be no order as to costs.
I certify that the preceding one hundred and thirty-nine (139) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 15 May 2023
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