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
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…
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CaseChat Overview and Summary
In the case of Daly & Vella, the appellant sought a declaration that she and the respondent were in a de facto relationship between January 2018 and March 2020, or alternatively, that she made substantial contributions under s 90SM(4)(a), (b) or (c) of the Family Law Act 1975 (Cth). The primary judge found that the parties were in a relationship but it did not meet the statutory definition of a de facto relationship. The primary judge also found that the appellant did not make substantial financial, non-financial, homemaker or parenting contributions. The appellant appealed against the primary judge’s decision, arguing that the primary judge made an error of principle, failed to consider certain evidence, and denied her procedural fairness.
The court examined the grounds of appeal and found that the primary judge did not make an error of principle in applying s 4AA of the Family Law Act. The court also found that the primary judge did not fail to consider the evidence of Mr J and the respondent’s son, or the fact 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. The court further found that the primary judge did not deny the appellant procedural fairness. The court concluded that the appeal was misplaced and dismissed it.
The court examined the grounds of appeal and found that the primary judge did not make an error of principle in applying s 4AA of the Family Law Act. The court also found that the primary judge did not fail to consider the evidence of Mr J and the respondent’s son, or the fact 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. The court further found that the primary judge did not deny the appellant procedural fairness. The court concluded that the appeal was misplaced and dismissed it.
Orders
Orders of the court
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Background
Background to the litigation
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.
Evidence
Evidence Before The Court
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.
Decision
Reasons for decision
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 APPEALDid 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)
Ratio Decidendi
Legal Principle Established
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