Delamarre & Asprey
[2014] FamCAFC 218
•14 November 2014
FAMILY COURT OF AUSTRALIA
| DELAMARRE & ASPREY | [2014] FamCAFC 218 |
| FAMILY LAW – APPEAL – DE FACTO RELATIONSHIP – where the appellant asserts that the trial judge erred in making a declaration under section 90RD(1) of the Family Law Act 1975 (Cth) that a de facto relationship existed between himself and the respondent between certain periods – where the Full Court found that the trial judge considered all of the relevant provisions in the definition of “de facto relationship” in section 4AA – where there was no error in the finding of a de facto relationship – where the Full Court found that the trial judge erred in recording in the declaration the commencement date for the de facto relationship as the date when the parties first met – the Full Court found that under section 90RD(1) it was not necessary for the dates of the relationship to be included in the declaration – accordingly the Full Court amended the declaration – no order for costs – the appeal be allowed in part. |
| Family Law Act 1975 (Cth) |
| Cadman & Hallett [2014] FamCAFC 142 |
| APPELLANT: | Mr Delamarre |
| RESPONDENT: | Ms Asprey |
| FILE NUMBER: | SYC | 4348 | of | 2011 |
| APPEAL NUMBER: | EA | 47 | of | 2013 |
| DATE DELIVERED: | 14 November 2014 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Faulks DCJ, Finn & Strickland JJ |
| HEARING DATE: | 6 February 2014 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 05 April 2013 |
| LOWER COURT MNC: | [2013] FamCA 214 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Hodgson |
| SOLICITOR FOR THE APPELLANT: | Aubrey Brown Partners |
| COUNSEL FOR THE RESPONDENT: | Ms Bridger |
| SOLICITOR FOR THE RESPONDENT: | Jo-Anna F S Moy Solicitor |
Orders
The appeal be allowed but only to the extent necessary to delete the words “from May 2002 until January 2011” from the declaration numbered 1.1 in Order 1 (“the order”) of the orders made by the Honourable Justice Cleary on
5 April 2013.
The appeal against the order be otherwise dismissed.
There be no order as to costs in relation to the appeal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Delamarre & Asprey has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 47 of 2013
File Number: SYC 4348 of 2011
| Mr Delamarre |
Appellant
And
| Ms Asprey |
Respondent
REASONS FOR JUDGMENT
On 5 April 2013 Cleary J ordered that:
(1)Declarations pursuant to S90RD of the Family Law Act 1975 (Cth) are made as follows:
1.1That a de facto relationship existed between [Ms Asprey] and [Mr Delamarre] from May 2002 until January 2011.
1.2That there are two children of the de facto relationship namely [B] born … July 2007 (“[B]”) and [C] born … September 2010 (“[C]”).
…
Mr Delamarre now appeals against that order. The appeal is opposed by
Ms Asprey, who had sought the first declaration contained in the order appealed. She had done so in the context of proceedings instituted by her on
18 July 2011 against Mr Delamarre for alteration of property interests under Part VIIIAB (Financial Matters relating to De Facto Relationships) of the Family Law Act 1975 (Cth) (“the Act”).
Mr Delamarre had opposed the making of the first declaration in the terms sought by Ms Asprey, and sought a declaration that a de facto relationship had never existed between them. He also sought the dismissal of the proceedings for alteration of property interests.
However, as Cleary J recorded in her reasons for judgment in relation to the declarations (at [6]), in the event that the first declaration was made “the parties agree that there would be no impediment to the making of the second declaration in respect of the children”.
The relevant statutory provisions
For the purposes of the Act, s 4AA defines, or explains the meaning of,
“de facto relationship” in the following way:
(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.
(3)No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a
de facto relationship.(4)A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
(5) For the purposes of this Act:
(a)a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and
(b)a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.
When 2 persons are related by family
(6)For the purposes of subsection (1), 2 persons are related by family if:
(a) one is the child (including an adopted child) of the other; or
(b)one is another descendant of the other (even if the relationship between them is traced through an adoptive parent); or
(c)they have a parent in common (who may be an adoptive parent of either or both of them).
For this purpose, disregard whether an adoption is declared void or has ceased to have effect.
It was said by the Full Court in Jonah & White (2012) 48 Fam LR 562 at [32] and [33]; (2012) FLC 93-522 at 86,682, in relation to s 4AA:
32It is immediately apparent that the touchstone for the determination of whether a de facto relationship exists is the finding that the parties to it are a “couple living together on a genuine domestic basis”.
33The Court may consider the matters to which the following subsections refer in determining that seminal question posed by
s 4AA(1)(c). We accept the submission that none of the matters referred to in the section has precedence over any other, nor must all necessarily be found before a finding of a de facto relationship is made.(See also the Full Court decisions of Sinclair & Whittaker (2013) FLC 93-551 at [93] and [94] and Cadman & Hallett [2014] FamCAFC 142 at [41] and [42].)
Section 90RD, which is in Sub-division C of Division 1 of Part VIIIAB, provides that for the purpose (inter alia) of proceedings (under s 90SM) for alteration of property interests following the breakdown of a de facto relationship, the court may make a declaration that a de facto relationship existed, or never existed, between two persons. Section 90RD is in the following terms:
(1) If:
(a)an application is made for an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL; and
(b)a claim is made, in support of the application, that a de facto relationship existed between the applicant and another person;
the court may, for the purposes of those proceedings (the primary proceedings), declare that a de facto relationship existed, or never existed, between those 2 persons.
(2)A declaration under subsection (1) of the existence of a de facto relationship may also declare any or all of the following:
(a)the period, or periods, of the de facto relationship for the purposes of paragraph 90SB(a);
(b) whether there is a child of the de facto relationship;
(c)whether one of the parties to the de facto relationship made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c);
(d) when the de facto relationship ended;
(e)where each of the parties to the de facto relationship was ordinarily resident during the de facto relationship.
…
It was under s 90RD that the declarations in the present case were made. For present purposes it is also important to note the provisions of s 90SB, which contains what can be described as the jurisdictional requirements necessary before a court can make an order under Part VIIIAB which (inter alia) alters interests in property. Section 90SB provides as follows:
A court may make an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL, in relation to a de facto relationship only if the court is satisfied:
(a)that the period, or the total of the periods, of the de facto relationship is at least 2 years; or
(b) that there is a child of the de facto relationship; or
(c) that:
(i)the party to the de facto relationship who applies for the order or declaration made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c); and
(ii)a failure to make the order or declaration would result in serious injustice to the applicant; or
(d)that the relationship is or was registered under a prescribed law of a State or Territory.
An outline of the reasons for judgment in relation to the declarations
In her reasons for judgment in relation to the declarations now the subject of this appeal, and after explaining each party’s position in relation to the declarations sought, her Honour recorded (at [7]) the apparently uncontroversial facts that the parties had met in May 2002, when Ms Asprey was single and Mr Delamarre was married, but estranged from his wife from whom he was divorced subsequently in June 2003.
Her Honour then recorded (at [8]) that there was “significant disagreement between the parties over the events of the following almost nine years” although “two important matters” were certain; these matters being the birth of their two children (in July 2007 and September 2010 respectively) and the breakdown of their “personal relationship” in January 2011.
Her Honour proceeded to discuss the evidence of each party, concluding
(at [13]) that her impression was that Ms Asprey “made every effort
to be accurate”, but (at [26]) that she “could not rely on the evidence” of
Mr Delamarre and that she preferred the evidence of Ms Asprey “on disputed matters”.
Having set out in full the provisions of s 4AA(1) and (2), and summarised the provisions of s 4AA(3), (4) and (5), her Honour made findings in relation to each of the nine matters set out in s 4AA(2). What can be seen to have been the most significant of those findings were then summarised in the following paragraphs under the heading “Conclusion”:
72.First and of greatest significance, the parties have two children together to whom they have been committed parents. They enjoyed an intimate sexual relationship during their years together. …
73.I have found that the parties lived together, mostly in the home of the respondent, but sometimes in the home of the applicant, for some part of most weeks throughout the relationship. Time together increased over the years with the parties spending most weekends and some holiday periods together from late 2006/early 2007 until separation in February 2011. The nature and quality of the relationship was that of a couple who wanted more time together, but could not agree on how to achieve that result. A couple who argued, disagreed and finally split up over how to live full time as a family.
74.They were known as a couple and held many social events, parties and barbecues for family and friends and were embraced as family members by each extended family. There was a close affectionate bond between the applicant and at least two of the respondent’s sons from his earlier marriage.
75.Financially they kept separate accounts and never a joint account. Such financial independence is not uncommon in modern relationships including marriages. I do not consider this aspect inconsistent with life as a couple on a genuine domestic relationship. They were each responsible for expenses in their own residences. A fulltime common residence was contemplated and desired, but never achieved.
76.In this matter, having regard to all the circumstances of the relationship of the parties, I conclude that they had a relationship as a couple living together on a genuine domestic basis. …
77.Accordingly I find that the parties were in a de facto relationship between May 2002 and February 2011 and that there were two children of that relationship namely [B] and [C]. I make declarations accordingly.
It will be seen that in the above passage from her reasons, her Honour referred at [73] and [77] to the parties having separated in “February 2011”. However, it will be recalled that earlier in her reasons at [8] (see [10] above) and in her order containing the declaration (see [1] above) her Honour referred to “January 2011” as the date of the breakdown or end of the parties’ relationship. We were told by counsel for the appellant at the hearing of the appeal that the correct date for the end of the relationship was “January 2011” and her Honour’s order had been amended to reflect this date (apparently after the publication of her reasons).
The grounds of appeal
The first of the eleven grounds of appeal contained in the Amended Notice of Appeal was directed to the commencement date of “May 2002” contained in the first declaration. We will return to this ground later as it raises a somewhat different matter to the matters raised by the other ten grounds of appeal.
The other ten grounds assert that her Honour erred:
·by failing to identify, evaluate and weigh up one against the other all of the factors in the evidence before her both in favour of and against a finding that the parties had a relationship as a couple living together on a genuine domestic basis (Ground 2);
·by failing to evaluate and weigh up the following as factors against a finding that the parties had a relationship as a couple living together on a genuine domestic basis:
a.that the parties never jointly acquired nor jointly owned any property together;
b.that the parties never had a joint bank account, never combined their incomes and were never financially dependent upon the other (paragraph 45);
c.that to the extent that the parties shared expenses from time to time it was not significant enough to be relevant for the purposes of s 4AA of the Act;
d.that, despite attempts, the parties never acquired any home in which they lived as a couple together on a genuine domestic basis;
e.that the parties could not ever agree on whether, how and/or where to live together as a couple on a genuine domestic basis (Ground 3);
·by finding that the following factors supported a finding that the parties had a relationship as a couple living together on a genuine domestic basis:
a.the unrealised plans of the parties about whether to live together on a full time basis (paragraph 36);
b.the parties’ passionate disagreement about how to live together (paragraph 37);
c.the inability of the parties to agree upon how and where the respondent would conduct her business affairs;
d.their inability to agree generally on how and where to live together as a couple on a genuine domestic basis (Ground 4);
·by failing to weigh up the evidence of the appellant’s witnesses relative to the issue of whether the parties had a relationship as a couple living together on a genuine domestic basis (paragraph 64) (Ground 5);
·by failing to give any or any sufficient weight to the parties’ not ever acquiring jointly any assets of significance at any stage of their association (Ground 6);
·by failing to give any or any sufficient weight to the complete separation of the parties’ finances throughout their association (Ground 7);
·by finding that although the parties never acquired property together, had they done so it was most likely that they would have made exactly equal contributions and bought it in joint names (paragraph 48)
(Ground 8 and Ground 9 which are in virtually identical terms);·in finding that the parties at no time were indifferent to each other or the shared life (paragraph 56) (Ground 10);
·by failing to find that the number of kilometres claimed by the respondent for private motor vehicle travel in her tax returns was inconsistent with her evidence of the extent of her private travel during the years to which the said tax returns related (paragraph 12) (Ground 11).
Discussion of Grounds 2 to 11
Ground Two
asserts error on her Honour’s part in failing “to identify, evaluate and weigh up one against the other all of the factors in the evidence … in favour of and against a finding” of a de facto relationship in this case. Ground Three then sets out the factors which would militate against a finding of a
de facto relationship in this case, and it can be seen that all the factors mentioned are of a financial nature, save possibly for the last mentioned
(being, the lack of agreement between the parties as to “whether, how and/or where to live together”) which might be read as extending beyond financial matters. Grounds Six and Seven then assert a failure to give weight to the parties’ separate financial arrangements. It will thus be seen that these four grounds are related, and it will therefore be convenient to consider them together.
We first point out in relation to these grounds, that despite the reference in Ground Two to “all of the factors in the evidence”, we did not understand it to be asserted on behalf of the appellant that there were any findings that should have been made on the evidence by her Honour other than those listed as “factors” in Ground Three.
It must also be pointed out that there is no requirement in the Act that a court in applying s 4AA is required to carry out a specific evaluation and/or weighing up of the factors in favour of and against a finding of a de facto relationship. Indeed, s 4AA(3) may well suggest to the contrary.
That having been said, we consider that in the concluding paragraphs of her reasons, which we have earlier set out, her Honour can be read as indeed weighing up, or balancing the factors which favoured a finding of a de facto relationship (and which are summarised in [72], [73] and [74]) against the fact that the parties keep their finances separate and maintained their own separate residences (as mentioned in [75]). However, her Honour can be read as according less weight to those financial matters because of her observation, which is undoubtedly true, that “financial independence is not uncommon in modern relationships including marriages.”
We thus consider that there is no substance in Grounds Two and Three. Similarly, what we have just said in relation to her Honour’s conclusion regarding the separate financial arrangements between these parties must also dispose of the challenges, which are expressly based on weight, in Grounds Six and Seven.
Ground Four asserts that her Honour was in error in concluding that four findings, which she made expressly or impliedly about the parties’ failure to agree on certain matters, supported the ultimate finding of a de facto relationship. The argument put in support of this ground was that the parties’ failure to agree on the four important matters specified in the ground were indicators against, rather than indicators in favour of, a de facto relationship.
It may be that another judge could well have concluded that the parties’ failure to agree on these important matters was an indication that they were not in a
de facto relationship. However, her Honour having had the advantage of seeing and hearing the parties give their evidence, reached the following conclusions about their relationship:
51.The extent to which the parties struggled and argued over how to live together as a family does, in my view, reflect mutual commitment to a shared life. Each party has a strong somewhat stubborn personality.
…
73.… The nature and quality of the relationship was that of a couple who wanted more time together, but could not agree on how to achieve that result. A couple who argued, disagreed and finally split up over how to live full time as a family.
Having regard to these conclusions by her Honour, we are not persuaded that her Honour was in error, and we would not be disposed to interfere with her order on the basis of Ground Four.
What we have just said in relation to Ground Four is also applicable to her Honour’s statement in [56], and to which Ground Ten is directed, that: “[a]t no time were the parties indifferent to each other or to their shared life”. While this is perhaps a somewhat sweeping statement, it could not be said that her Honour, having had the advantage of seeing and hearing the parties, was not entitled to make it.
Grounds Eight and Nine are directed to her Honour’s statement in [48] that had the parties bought a house together “the financial contributions would most likely have been exactly equal and in both their names”. The appellant contends that there was no evidence to support this finding, and we did not understand the respondent to contend otherwise. In these circumstances, her Honour’s statement must be regarded as purely speculative, and indeed also likely to be erroneous given the parties’ separate financial arrangements up to that time. However, these criticisms would not justify our interference with her Honour’s ultimate decision.
Ground Five asserts a failure on her Honour’s part “to weigh up” the evidence of four friends of Mr Delamarre who provided affidavit evidence in support of his case that he did not have a de facto relationship with Ms Asprey. All four witnesses were cross-examined.
In her reasons for judgment, and in the context of considering “the reputation and public aspects of the relationship” (s 4AA(2)(i)), her Honour referred to the evidence of Mr Delamarre’s four friends as well as to the evidence of each party’s extended family saying:
64.The parties were well known to the families of each of them. There are numerous photographs of extended family events on both sides. The respondent called four witnesses. Two were accountants employed by him. Two were friends/business colleagues. All gave evidence of knowing the applicant and the two children, but recounting incidents and conversations tending to suggest that the relationship between the parties was less than solid and committed.
Thereafter her Honour returned to issues relating to the evidence, or lack
of evidence, from each party’s extended family. Specifically in relation to
Mr Delamarre’s family, her Honour found:
65.No member of the respondent’s family, with whom I accept he is very close, gave evidence. I infer that their evidence would not have assisted his case. …
Her Honour also went on to find (at [68] and [69]) that there was a “relationship of close affection” between Mr [Delamarre] and Ms [Asprey’s] sister, [Ms L].
Having ourselves considered the affidavit and oral evidence of the four friends of Mr Delamarre, we do not regard her Honour’s admittedly limited discussion of their evidence as being an error which requires our intervention. It was the evidence, or importantly lack of it, from members of the parties’ extended families, which was rightly the subject of her Honour’s greater focus.
Ground Eleven asserts that her Honour erred in failing to find that the number of kilometres claimed by Ms Asprey for private motor vehicle travel in her tax returns was inconsistent with her evidence of the extent of her private travel during the years to which the tax returns related.
This ground as drafted included a reference to [12] of her Honour’s reasons. That paragraph, which follows, occurs in the course of her Honour’s discussion of Ms Asprey’s credibility as a witness and needs to be read in context with other paragraphs which also follow:
9.The applicant gave her evidence in a calm straightforward way and was willing to make concessions during cross examination.
10.An example of this is that she had deposed to spending every weekend with the respondent after December 2007, but agreed in her oral evidence that it might have been 95 per cent of weekends. Taken together with her further statement in the affidavit, that the respondent came down to her home in [Suburb D] to spend some weekends with her and [B], her evidence was not inconsistent.
…
12.The applicant was cross-examined about the log book she kept, on the basis that the number of kilometres she claimed for private travel was inconsistent with her claim of travelling all or most weekends. I accept the evidence of the applicant that she did not use the log book method in relation to her taxation return, although she kept log books. Whether or not it was a correct belief she believed she was claiming, for tax purposes, the maximum allowable number of hours for work related travel.
13.My impression was that the applicant made every effort to be accurate.
It emerged during the oral submissions by counsel for the appellant that this ground was also directed to the first sentence of [73] of her Honour’s reasons where in reaching the conclusion that there had been a de facto relationship between the parties she said:
73.I have found that the parties lived together, mostly in the home of the respondent, but sometimes in the home of the applicant, for some part of most weeks throughout the relationship. …
The essential argument put to us on behalf of the appellant in support of this ground was that Ms Asprey had claimed under cross-examination that in the period 2008 to 2011 she had travelled from Sydney to the New South Wales Central Coast to stay with Mr Delamarre about 95 per cent of weekends each year, but that she had also accepted that the kilometres claimed in her tax returns recorded far less non-work related car travel than she had asserted in her evidence.
We have examined the transcript of the relatively lengthy cross-examination of Ms Asprey regarding this matter of the travel recorded in her tax returns (Transcript 4 February 2013, pp. 68-86). We are satisfied that the conclusion which her Honour reached in the second and third sentences of [12] of her reasons was certainly open to her. Thus, and as is the case with Grounds
Two to Ten, Ground Eleven cannot succeed.
Discussion of Ground 1
It will be recalled that in the first declaration made by her Honour it was stated that the de facto relationship existed between the parties “from May 2002 until January 2011”.
The first ground of appeal challenges the inclusion in the declaration of a commencement date of “May 2002”, and does so by asserting that her Honour erred in finding that “the parties had a relationship as a couple living together on a genuine domestic basis commencing in 2002 notwithstanding the respondent’s contradictory evidence”.
The “contradictory evidence” referred to in this ground is the following evidence given by Ms Asprey under cross examination:
You don’t have any dates in paragraph 8. Can you help and tell us what the date is. What’s - - -? ---Well, we first met in 2002.
Right. So when in 2002?---I think it was May.
May. Okay. So could I just stop you there, and say that you’re, in paragraph 8, referring to the sequence of events from meeting in
May 2002?---Yes.Okay. And you would say that for the first year, after meeting, you were not in a de facto relationship. Would you agree?---I would agree, yes.
Okay. All right. So to May 2003. And in that one year period, it was a romantic relationship, wasn’t it?---Yes.
And a close, personal relationship? ---Yes.
But certainly not one where you regarded yourself as the respondent’s spouse, or de facto spouse. Would you agree?---Not within one year, no.
Okay. All right.
(Transcript 4 February 2013, p. 88)
…
So you told us about – or described in paragraph 8 how you understood things to have happened. What happened, so far as you were concerned, that meant that you regarded yourself as the de facto partner of my client? ---Well, when we started seeing each other more regularly, and particularly when I became pregnant, and I had three pregnancies.
Well, when you became pregnant the first time, is that what you mean? Yes.
And when was that?---2006.
(Transcript 4 February 2013, p. 95)
In Sinclair & Whittaker the Full Court has warned (at [65]) that because the ultimate decision as to whether there is a de facto relationship at any given time is a decision for the court and not for the parties, the perception of the parties as to the nature of the relationship, while a relevant matter, cannot be determinative. In the present case, however, if her Honour determined, as she apparently did, that the parties had been in a de facto relationship since the time of their first meeting in May 2002, it was necessary for her to have explained clearly why that was so, given the evidence of Ms Asprey which we have set out above.
However, her Honour did not provide any such explanation.
The commencement date of May 2002 simply appears in the concluding paragraph [77] of her reasons. A finding of a commencement date for a de facto relationship which coincides with the first meeting of the parties would seem, at least without some further explanation, to fly in the face of human experience.
In our discussions with both counsel during the hearing of the appeal, the question arose as to whether this apparent error regarding the commencement date of the parties’ de facto relationship, had any practical significance. It appears that this error may well not have any such significance for the reason that the existence of the parties’ two children in this case means that under
s 90SB (set out above) there would be jurisdiction to make an order, under
Part VIIIAB altering interests in property, without the need for the court to be satisfied that this de facto relationship had been in existence for a period of at least two years. Further, any definition in a declaration of the period of a
de facto relationship would not limit the contributions of the parties which could be considered under s 90SM(4)(a) to (c).
Nevertheless, we consider that the better view must be that having identified error in the first declaration, we should not allow it to stand without some amendment.
Both counsel were of the view that we could re-exercise the discretion and amend the declaration, although counsel for Mr Delamarre did not submit what that amended date should be; his preference appeared to be that no date be specified. Counsel for Ms Asprey proposed an amended commencement date of September 2002, but that date would not accord with the oral evidence of Ms Asprey which we set out above.
In these circumstances we consider that the most appropriate course is for us simply to delete the words “from May 2002 until January 2011” from the first declaration. A declaration which provides that a de facto relationship existed, but which does not refer to the period of that relationship, appears to be envisaged by the terms of s 90RD(1), with such an interpretation of that subsection being supported by the use of the word “also” in s 90RD(2) and by the provision in s 90RD(2)(a) for a further declaration as to the period or periods of the relationship.
In the present case the absence of any period of time in the first declaration would not impact on the issue of jurisdiction to make orders under s 90SM altering property interests, because of the existence of the parties’ children.
We will therefore allow the appeal to the limited extent only of deleting reference in the first declaration to the period of time of the relationship. The appeal will otherwise be dismissed.
Costs of the appeal
At the conclusion of the hearing of the appeal, we received submissions on behalf of each party in relation to the costs of the appeal. Given the outcome of the appeal, we are not persuaded that the circumstances would justify an order for costs in favour of either party. Neither are we persuaded that it is an appropriate case for the award of certificates to either party under the
Federal Proceedings (Costs) Act 1981(Cth).
I certify that the preceding forty seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Faulks DCJ, Finn & Strickland JJ) delivered on 14 November 2014.
Associate:
Date: 14 November 2014
7