Denys & Kellett
[2022] FedCFamC1A 223
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Denys & Kellett [2022] FedCFamC1A 223
Appeal from: Denys & Kellett [2022] FedCFamC2F 971 Appeal number: NAA181 of 2022 File number: MLC 4967 of 2021 Judgment of: AUSTIN, REES & KARI JJ Date of judgment: 23 December 2022 Catchwords: FAMILY LAW – APPEAL – De facto relationship – Where the primary judge made orders declaring that a de facto relationship did not exist between the parties – Where the primary judge found that the parties did not have a mutual commitment to a shared life – Where the primary judge found that the parties were in a "romantic relationship" – Error of law – Where the primary judge applied the wrong test to determining whether a de facto relationship existed – Where the declaration that a de facto relationship did not exist is set aside – Where the matter is remitted for re-hearing – Costs certificates granted to the appellant in respect of the appeal and the re-hearing. Legislation: Family Law Act 1975 (Cth) ss 4AA, 90RD, 90SE, 90SG, 90SL, 90SM
Federal Proceedings (Costs) Act 1981 (Cth)
Cases cited: Colburn & Cleese (2022) FLC 94-105; [2022] FedCFamC1A 147
Doughty v Fairhall (2022) 65 Fam LR 537; [2022] FedCFamC1A 150
Jonah & White (2012) FLC 93-522; [2012] FamCAFC 200
Sinclair & Whittaker (2013) FLC 93-551; [2013] FamCAFC 129
Number of paragraphs: 54 Date of hearing: 6 December 2022 Place: Heard in Melbourne, delivered in Newcastle Counsel for the Appellant: Mr Staindl Solicitor for the Appellant: Clancy & Triado The Respondent: Litigant in person ORDERS
NAA181 of 2022
MLC 4967 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS DENYS
Appellant
AND: MR KELLETT
Respondent
order made by:
AUSTIN, REES & KARI JJ
DATE OF ORDER:
23 DECEMBER 2022
THE COURT ORDERS THAT:
1.The appeal is allowed.
2.Orders 1 and 2 of the Orders made on 25 July 2022 in the Federal Circuit and Family Court of Australia (Division 2), are set aside.
3.The proceedings be remitted for rehearing before a judge of the Federal Circuit and Family Court of Australia (Division 2), other than the primary judge.
4.The Court grants to the appellant a costs certificate pursuant to s 9 and s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal and any rehearing.
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 Denys & Kellett has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN, REES & KARI JJ:
This is an appeal from a judge of the Federal Circuit and Family Court of Australia (Division 2) on 25 July 2022, who made orders declaring that a de facto relationship did not exist between the appellant and the respondent and otherwise dismissed the appellant’s Initiating Application which had sought financial relief.
By Notice of Appeal filed 22 August 2022, the appellant asks the Court to set aside both the declaration as to the non-existence of a de facto relationship and the dismissal of the proceedings.
The appellant also contends that if the appeal is successful, then the Court ought make a declaration that a de facto relationship existed between the parties, rather than remitting the matter for re-hearing.
The respondent opposes the appeal.
For the reasons that follow the appeal is allowed and the matter will be remitted for re-hearing.
Background
As described by the primary judge at [1], the focus of the trial was the “threshold” question of whether the parties were in a de facto relationship within the meaning of s 4AA of the Family Law Act 1975 (Cth) (“the Act”).
In her Initiating Application the appellant had not specifically sought a declaration as to the existence of a de facto relationship between herself and the respondent. However, when the respondent filed his Response on 26 July 2021 he sought that the Initiating Application be dismissed, thus enlivening the threshold question.
The appellant’s Case Outline for trial set out that she sought a “declaration pursuant to Section 90RD of the Act that she and the Respondent were in a de facto relationship”.[1] That same document identified that the duration of the de facto relationship was one “that lasted approximately 7.5 years; and, more than 5 years cohabitation”.[2]
[1] Appellant’s Trial book/Court book dated 29 March 2022, p. 227.
[2] Appellant’s Trial book/Court book dated 29 March 2022, p. 228.
The respondent acknowledged that he and the appellant lived together in his home between May 2015 and 16 July 2020.[3] He otherwise denied that a de facto relationship existed. The primary judge identified that the respondent had variously asserted that the appellant was simply a “renter” at his property and that they were “friends with benefits” (at [24]).
[3] Respondent’s Affidavit filed 26 July 2021 at paragraph 6(a)–(b).
The primary judge’s reasons
Under the heading “Legal Principles” (at [12]–[18]) the primary judge correctly identified the relevant principles that apply in determining the threshold question of whether a de facto relationship exists between two persons. Significantly for present purposes, the primary judge identified (at [15], [17] and [18]) that the relevant test is that prescribed by s 4AA of the Act.
The primary judge thereafter properly focussed her enquiry on the various factors set out in s 4AA(2).
It is clear from the reasons that the primary judge held concerns about the credit of each of the parties (at [8] and [84]–[86]).
Throughout the primary judge’s discussion of the s 4AA factors (at [19]–[83]), assertions made by each of the parties and their respective witness’ were recited. In tackling the evidence in this way, the primary judge identified instances where concessions had been made and on occasions made findings (see below at [32] of these reasons).
The primary judge however ultimately concluded:
89.In this case I am satisfied that [the appellant] and [the respondent] were in a romantic relationship. They were not landlord and tenant. They were not “friends with benefits”. However when considering the whole of the evidence I am not satisfied that [the appellant] has discharged the onus of establishing the fact that they were in a de facto relationship. Whilst they lived together for 5 years, there is a lack of evidence of there being a mutual degree of commitment to a shared life. For these reasons I dismiss [the appellant’s] application.
The grounds of appeal
The Notice of Appeal sets out seven grounds of appeal.
During the course of the appeal however, counsel for the appellant refined the appellant’s complaint to ones that do not fit neatly within the grounds of appeal originally contended.
For the reasons that follow, we consider that an error of law has been established.
In circumstances where the appeal succeeds as a result of the matters raised in oral argument, which the Court is satisfied point to an error of law, it is more appropriate to set out those matters than to address each of the grounds of appeal as originally pleaded.
As recently identified in Doughty v Fairhall (2022) 65 Fam LR 537 at [28]:
28.… It does not matter that the grounds of appeal did not raise the fundamental error. The law confers a right of appeal, which should be a reality rather than an illusion, so if the decision at first instance is wrong it should be corrected (Warren v Coombes (1978) 142 CLR 531 at 553; 23 ALR 405 at 424; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; 357 ALR 408; 163 ALD 1; [2018] HCA 30 at [30]–[32]).
The legal framework
In order to understand the error of law that has been identified, it is necessary to identify the legal framework underpinning the error.
As correctly identified by the primary judge, the meaning of a “de facto relationship” is that prescribed in s 4AA of the Act.
For present purposes the relevant provisions are:
4AA De facto relationships
Meaning of de facto relationship
(1) A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b) the persons are not related by family (see subsection (6)); and
(c)having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has effect subject to subsection (5).
Working out if persons have a relationship as a couple
(2) Those circumstances may include any or all of the following:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g)whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h) the care and support of children;
(i) the reputation and public aspects of the relationship.
(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.
(Bold emphasis added)
In Jonah & White (2012) FLC 93-522 at 86,682, the Full Court described the test prescribed by s 4AA in the following terms:
It 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”.
The 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.
In Sinclair & Whittaker (2013) FLC 93-551 at [51]–[56], the Full Court helpfully reiterated the relevant test and identified:
51.In coming to the view that a couple had a relationship as a couple living together on a genuine domestic basis the court is to have regard to all of the circumstances of their relationship. Those circumstances may include those specified in ss 4AA(2).
52.Sub-section 4AA(3) highlights that no particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the subject persons have a de facto relationship.
53. Sub-section 4AA(4) provides:
A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
54.Thus, whether or not a de facto relationship, as defined, exists will depend upon an assessment of all of the circumstances of the relationship, each to be given the weight the court thinks appropriate.
55.In Lynam v Director-General of Social Security (1983) 52 ALR 128 at 131 said:
Each element of a relationship draws its colour and its significance from the other elements, some of which may point at one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.
56.Many of the submissions put by the appellant in the appeal sought to place significant, if not determinative weight, on particular circumstances. Absent the identification of an error on the part of the trial judge it is difficult for such submissions to succeed. Merely because another judge may have weighed the circumstances differently does not, of itself, demonstrate error.
The error of law
In essence, the appellant’s position is that the primary judge made an error of law by applying the wrong test to determining whether a de facto relationship existed.
While not articulated in this fashion, it is apparent that there are two reasons which point to such error:
(a)Firstly, the primary judge’s focus on whether the parties had a “mutual degree of commitment to a shared life”; and
(b)Secondly, the primary judge’s focus on whether the parties were in a “romantic relationship”.
Earlier authorities establish that an appellate court will tend to resist interference with an evaluative decision by a trial judge about whether or not a de facto relationship existed (Colburn & Cleese (2022) FLC 94-105 at [47]), but such restraint applies when the decision is entirely factual; not when an error of law taints the judgment.
The focus on whether the parties had a mutual degree of commitment to a shared life
As is evident from the primary judge’s conclusion (at [89]) earlier recited, the primary judge found that while satisfied the parties lived together for five years, there was a “lack of evidence of there being a mutual degree of commitment to a shared life”.
However, the test to which the primary judge should have had regard, was that prescribed by s 4AA(1)(c), namely whether in having regard to all the circumstances of the relationship, the parties were “living together on a genuine domestic basis”, of which the mutual degree of commitment to a shared life was but one of the relevant considerations (s 4AA(2)(f)).
While it might be observed that the primary judge addressed the relevant factors set out in s 4AA(2), the primary judge’s focus on only two of those factors at [89] (living together and mutual degree of commitment to a shared life), appears to elevate the “mutual degree of commitment to a shared life” to the status of being determinative of the seminal question.
The authorities to which we have earlier referred make it clear that no single factor prescribed by s 4AA(2) is necessarily determinative.
The conclusion that the primary judge elevated the mutual degree of commitment to a shared life to a determinative factor becomes clear when regard is had to the primary judge’s separate consideration of each of the s 4AA(2) indicia, where the primary judge:
(a)Found that the parties shared a bed and a bedroom (at [47]) – a relevant consideration pursuant to each s 4AA(2)(b), (c) and (f).
(b)Recorded the respondent’s concession that the parties had a sexual relationship (at [22]), and otherwise rejected the respondent’s claims that the parties were “friends with benefits” (at [89]) and / or that the appellant had offered him “sex for favours” (at [25]) – a relevant consideration pursuant to s 4AA(2)(c).
(c)Recorded that the appellant had acknowledged spending approximately $180,000 over five years as evidenced by the respondent’s bank statements (at [32]) – a relevant consideration pursuant to s 4AA(2)(d).
(d)Found that the appellant had not contributed to the purchase of the respondent’s investment units, but had made regular modest payments to the respondent while they lived together (at [58]) – a relevant consideration pursuant to s 4AA(2)(d).
(e)Recorded the respondent’s concession and found that the parties went on various outings together (at [37]) – a relevant factor pursuant to each s 4AA(2)(f) and (i).
(f)Recorded the respondent’s concession that the appellant had visited him in hospital for almost two weeks after the respondent had surgery, and assisted in the respondent’s recovery at home, which the primary judge found was “indicative of there being more to their relationship than flatmates” (at [42]–[43]) – a relevant consideration pursuant to s 4AA(2)(f) and (i).
(g)Found that the parties went to family events together for each other’s family (at [49]–[51]) – a relevant consideration pursuant to s 4AA(2)(f) and (i).
(h)Rejected the respondent’s claim that a five day trip taken with the appellant was merely a business trip (at [53]) – a relevant consideration pursuant to s 4AA(2)(f) and (i).
(i)Found that the parties each held themselves out to being in a “romantic relationship” (at [61]) – a relevant consideration pursuant to s 4AA(2)(i).
In having considered those factors and made findings, it is not apparent to us how those factors weighed into the ultimate determination that the parties were not living together on a genuine domestic basis, and thus not in a de facto relationship. The solitary finding about the absence of a mutual degree of commitment to a share life is not only difficult to fathom in the face of the other findings, but also seems to have been used to outflank the other findings made by the primary judge.
It is for this reason that we consider that the primary judge applied the wrong test in determining whether a de facto relationship existed between the parties.
The focus on whether the parties were in a romantic relationship
Throughout the reasons, the primary judge found that the relationship of the parties was a “romantic relationship” (at [11], [26], [43], [55], [61], [66], [70], [74], [76] and [88]–[89]).
The term “romantic relationship” is not one to which any reference is made in s 4AA. Nor is it one that the primary judge sought to define in the reasons; even if it is capable of definition.
When regard is had to the matters discussed at [32] of these reasons, it might rhetorically be asked what if any distinction there is between a “romantic relationship” and a “de facto relationship”?
While it might have been open on the evidence for the primary judge, having weighed all of the factors in s 4AA(2), to ultimately conclude that the relationship between the parties was something less than a de facto relationship, we consider that it is unnecessary and erroneous to attempt to define the different categories or labels that might be put on any relationship that does not meet the statutory test prescribed by s 4AA(1).
Put more simply, the findings made when considering those factors in s 4AA(2) either support the ultimate finding that the parties are living together on a genuine domestic basis, and thus in a de facto relationship, or they do not.
We are of the view that by focussing on a characterisation of the relationship between the parties, rather than addressing the seminal question, the primary judge was drawn into error.
Outcome
In circumstances where an error of law has been identified, it follows that the appeal must be allowed.
The appellant sought orders in the event of the appeal being allowed, that the Court substitute its own finding and declare that a de facto relationship existed between the parties.
While these reasons identify various findings that were made by the primary judge that might point to a finding that a de facto relationship existed between the parties (findings which are not the subject of any challenge), we consider that the ambit declaration that has been sought by the appellant mitigates against that outcome.
As identified earlier in these reasons, the Case Outline of the appellant did not seek to define with any precision the period of the de facto relationship.
During the hearing of the appeal, counsel for the appellant submitted that the respondent “would come and stay for a period of two years before living together”. This submission suggests that the appellant’s position is that any finding as to the existence of a de facto relationship should extend beyond the five years that these parties cohabited.
While we have identified certain findings made by the primary judge, it is not entirely clear to us whether these findings relate only to the period of cohabitation, or whether they include the earlier period of time when the appellant asserts the parties were in a de facto relationship.
A declaration as to the existence of a de facto relationship is described as a threshold question, because it is the making of such a declaration which enlivens the jurisdiction of the Court to make orders relating to the financial aspects of the relationship pursuant to s 90SE, s 90SG and s 90SM, or to make a declaration pursuant to s 90SL.
When the Court is called upon to make a declaration as to the existence of a de facto relationship, or otherwise, the Court “may” relevantly in addition make a declaration as to the “period or periods, of the de facto relationship” (s 90RD(2)(a)), “when the de facto relationship ended” (s 90RD(2)(d)), or “where each of the parties to the de facto relationship were ordinarily resident during the de facto relationship” (s 90RD(2)(e)).
The significance of such declarations being made at the same time that any declaration as to the existence of a de facto relationship is made, is because those factors may be relevant considerations when considering any claim for financial relief arising from the de facto relationship.
For these reasons, we consider it more appropriate that the matter be remitted for re-hearing by a judge other than the primary judge.
Costs
The appellant sought a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) in the event that the appeal succeeded on the basis of an error of law.
The respondent did not make any such claim in circumstances where he was self-represented.
Accordingly, a costs certificate will issue to the appellant for the appeal.
We also consider it appropriate to issue a costs certificate to the appellant for any rehearing given the error of law which has been identified and in circumstances where we consider it appropriate to remit the matter for rehearing.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, Rees & Kari. Associate:
Dated: 23 December 2022
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