G v O

Case [2022] WASCA 23

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   G -v- O [2022] WASCA 23

CORAM:   MURPHY JA

PRITCHARD JA

MORRISON AJA

HEARD:   19 MAY 2021

DELIVERED          :   23 FEBRUARY 2022

FILE NO/S:   CACV 33 of 2020

CACV 95 of 2020

BETWEEN:   G

Appellant

AND

O

Respondent

ON APPEAL FROM:

Jurisdiction              :   FAMILY COURT OF WESTERN AUSTRALIA

Coram:   MONCRIEFF J

Citation: G and O [2020] FCWA 27; [2020] FCWA 135

File Number            :   PTW 5149 of 2010


Catchwords:

Family law - Application for de facto property settlement - Whether parties in a de facto relationship - Whether primary judge erred in fact or law in failing to make finding as to whether appellant believed she was in a long‑term committed relationship - Whether parties in 'marriage‑like' relationship - How common intention to form enduring union established - Whether parties' subjective intention or belief as to de facto relationship relevant

Costs appeal - Indemnity costs - Whether primary judge erred in exercise of discretion as to costs in ordering costs be paid on indemnity basis

Legislation:

Family Court Act 1991 (WA), s 36(4)(b), s 205ZG, s 211(3), s 237
Interpretation Act 1984 (WA), s 13A

Result:

Appeal dismissed

Category:    A

Representation:

Counsel:

Appellant : Dr P R MacMillan
Respondent : Dr R S Ingleby

Solicitors:

Appellant : Gibson Lyons Lawyers
Respondent : O'Sullivan Davies Lawyers

Case(s) referred to in decision(s):

Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172

Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424

Chan v Mazurkiewicz [2015] WASC 432

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248

D & D (Costs) (No 2) (2010) FLC 93-435

D v B [No. 2] [2012] WASCA 265

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

G v O [2018] WASCA 211; (2018) 53 WAR 393

H v P [2011] WASCA 78

Joyce v Anderson [2020] WASCA 48

Kohan and Kohan (1993) FLC 92-340

Lee v Lee [2019] HCA 28; (2019) 93 ALJR 993

Munday v Bowman (1997) FLC 92-784

MW v Department of Community Services [2008] HCA 12; (2008) 82 ALJR 629

Pelka v Secretary, Department of Family and Community Services [2006] FCA 735; (2006) 151 FCR 546

Phillips and Hansford [2020] FamCAFC 28

Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164

Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S)

Yunghanns and Yunghanns (2000) FLC 93-029

TABLE OF CONTENTS

Overview of the reasons of the primary judge

(a)          The length of the relationship between them

(b)          Whether the two persons have resided together

(c)          The nature and extent of common residence

(d)          Whether there is, or has been, a sexual relationship between them

(e)          The degree of financial dependence or interdependence, and any arrangements for…

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Details
AGLC
G v O [2022] WASCA 23
Case
[2022] WASCA 23
Decision Date

CaseChat Overview and Summary

The case of G v O involved a dispute over the nature of the relationship between two individuals, G and O, and whether it constituted a marriage-like relationship under the relevant legislation. The matter was heard in the Family Court of Australia. The central issue was whether subjective intentions of the parties regarding the nature of their relationship were relevant in determining whether they lived together in a marriage-like relationship, and if so, how such intentions should be assessed.

The court had to decide whether subjective intentions of the parties, if held in common and manifested in their conduct, were relevant to establishing the existence of a marriage-like relationship. The court also examined the appropriate weight to be given to such evidence, distinguishing between direct evidence and admissions against interest. The reasoning of the court focused on the objective manifestation of the parties' intentions in their conduct, rather than solely on their subjective beliefs. The court held that while subjective intentions could be relevant, they needed to be substantiated by tangible actions and circumstances that demonstrated the nature of the relationship.

Ultimately, the court concluded that direct evidence of subjective intention could be probative if it aligned with admissions against interest, but its weight would be diminished if it were self-serving. The court emphasised that the best evidence of actual intention would be inferred from the parties' conduct. The court's reasoning underscored the importance of objective manifestations of the parties' intentions in determining the existence of a marriage-like relationship.

The court's decision clarified the role of subjective intentions and objective conduct in assessing the nature of a relationship under the relevant legislation, providing guidance for future cases involving similar disputes.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Similarly, in the quoted passage from the reasons of Dutney J, his Honour was not saying that a party's subjective intention was relevant without some physical manifestation of it. The reference to a party deciding to no longer live together is followed by the sentence 'It does not seem to me that it is necessary to communicate this intention to the other party providing the party that is desirous of ending the relationship acts on his or her decision'. Furthermore, the test adopted by Dutney J to determine the joint intention of the parties was that it is 'usually ascertained by looking objectively at the whole circumstances of the relationship'. The essence of ground 1 was that subjective intentions on the part of the appellant and the respondent were relevant in the way identified in paragraph [113] above. That contention, on its face, depended upon admission of evidence going to the parties' subjective belief or intention as to whether their relationship was 'marriage-like'. The expression 'live together' in a marriage‑like relationship in s 13A(1) of the Interpretation Act is apt to include a consideration of the parties' common intention as to the nature of their relationship, as is the phrase 'degree of mutual commitment' by the parties to a shared life in s 13A(2)(g). Common intention, insofar as it is relevant, means in this context an actual intention held by both parties at the time - not an intention imputed by law which the parties never had. It is, in general terms, a common intention as to an enduring union between the parties.[144][144] G v O [55] - [58]. Direct evidence of (actual) common intention may explain or give colour to objective circumstances such as cohabitation. In proceedings under the Act between an applicant, A, and a respondent, B, where A contends for, and B denies, the existence of a marriage‑like relationship, direct evidence by B that she conducted herself at the time with the intention that her relationship with A was and would be an enduring union, would be probative as an admission against interest on the question of common intention. Direct evidence by A of his subjective intention at the time would not, as we apprehend it, be inadmissible, but its weight would be assessed taking into account the self‑serving nature of the evidence. The best evidence of A's actual intention would be inferences to be drawn from his conduct at the time. The same observations would apply in respect of an admission against interest by A and a self‑serving statement by B. Ultimately, however, direct evidence of subjective intention with respect to an enduring union could not avail the applicant unless the common intention of the parties materialised itself in tangible ways in the life of the relationship. A subjective intention, even if mutually held, to an enduring union, which failed to manifest itself in the parties' conduct at the time, would not be evidence that the parties 'live[d] together in a marriage‑like relationship'.

Ratio Decidendi

Legal Principle Established

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