G v O
[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 financial support, between them
The Eagle Bay property
The Second Dalkeith property
The Cowaramup properties
The Claremont property
The learned primary judge's conclusion in relation to the parties' property investments
Other evidence in relation to the parties' financial arrangements
(f) The ownership, use and acquisition of their property (including property they own individually)
(g) The degree of mutual commitment to a shared life
Testamentary dispositions
Health cover
Counselling
(h) Whether the parties care for and support children
(i) The reputation, and public aspects, of the relationship between the parties
Loan applications
School forms
Evidence of family and friends
Conclusion as to the parties' presentation to others
Findings as to credibility
Findings based on presentation at trial
The appellant's earlier Family Court proceedings against her former husband
The appellant's evidence as to non-financial contributions
The nature of the primary appeal
The primary appeal - grounds of appeal
Primary appeal - ground 1 - disposition
The question of intention in relation to whether the parties are in a de facto relationship
Why ground 1 fails
The costs appeal
Overview of the primary judge's reasons
The grounds of appeal
JUDGMENT OF THE COURT:
The appellant and the respondent were in a romantic relationship from late 2000 or early 2001 until 1 July 2007. The appellant sought an order from the Family Court of Western Australia, pursuant to s 205ZG of the Family Court Act 1997 (WA) (Act) altering the parties' property interests (Application). An order of that kind could only be made if the court was satisfied that the appellant and the respondent had been in a de facto relationship for at least two years.[1]
[1] Section 205Z(1)(a) of the Act.
The appeals concern orders made by the Family Court following a trial to determine whether the parties had been in a de facto relationship. The proceedings have a lengthy history, which was recounted in an earlier decision of this court.[2] It is not necessary to repeat that history here, other than to note that the trial before the learned primary judge was a retrial, and that this is the third appeal to this court from orders made by the Family Court in relation to the Application.
[2] G v O [2018] WASCA 211; (2018) 53 WAR 393.
At the trial, there was no dispute that the parties had been in a relationship, but the Family Court held that their relationship had not been a de facto relationship. That finding relied heavily on the learned primary judge's rejection of the evidence of the appellant, based on adverse findings as to her credibility, and an acceptance by the learned primary judge of the evidence of the respondent.
On 28 February 2020, the Family Court dismissed the Application and made orders that, save as to the issue of costs, all outstanding proceedings be dismissed.[3] The appellant appeals against those orders in CACV 33 of 2020 (primary appeal).
[3] White Appeal Book CACV 33 of 2020 (WAB) 1.
The respondent sought an order that the appellant pay his costs for the period 1 December 2018 to 3 April 2020, to be assessed on an indemnity basis if not agreed. The learned primary judge made that order (Costs Order).[4] He did so on the basis of adverse findings he made about the appellant's conduct of the proceedings, and her rejection of an offer of settlement. The learned primary judge held that, in those circumstances, the respondent should be relieved from the burden of costs which he should not have been required to incur. The appellant also appeals against the Costs Order in CACV 95 of 2020 (costs appeal).
[4] White Appeal Book CACV 95 of 2020 (WAB Costs) 1.
In the primary appeal, the appellant advances four lengthy grounds of appeal. They are summarised later in these reasons. Each of the grounds alleges errors of fact or law in the findings made by the learned primary judge.
In so far as the costs appeal is concerned, two grounds of appeal are advanced. The first is dependent on this court concluding that the learned primary judge should have found that the parties were in a de facto relationship and that in those circumstances, the court should have ordered the respondent to pay the appellant's costs of the action. The second ground is that the learned primary judge erred in the exercise of his discretion in ordering that costs be paid on an indemnity basis.
For the reasons which follow, the grounds of appeal in the primary appeal and in the costs appeal have no merit and each appeal must be dismissed.
Overview of the reasons of the primary judge
The appellant is 64 years of age and at the time of the trial was working in the property industry. She has two children from a previous marriage. The respondent is 69 years of age, and was employed in the medical profession. He has two children from a previous marriage.
As we have already observed, it was not in dispute that the appellant and the respondent were in a relationship, which was a sexual relationship, and that they spent time together. The appellant and the respondent commenced their relationship in late 2000.[5] It was common ground that their relationship ceased on 1 July 2007.[6] What was in contention was the nature of that relationship.
[5] RFD [47] - [49].
[6] RFD [63].
The appellant's case was that she and the respondent were in a de facto relationship. She gave evidence - on affidavit and orally at the trial - and also relied on evidence from her son and daughter; a number of friends; her bookkeeper; and a mortgage broker. She pointed to the fact that they had a sexual relationship, that the respondent frequently stayed overnight at her house, that they socialised together, that they holidayed together, and that they invested in property together.
The respondent's case was that the relationship was not a marriage-like relationship, so as to be treated as a de facto relationship within the context of the Act.[7] The respondent gave evidence - on affidavit and orally at the retrial - and also relied on evidence from his son and daughter; a nephew; a number of friends; and his bookkeeper. The respondent did not dispute that the parties were in a romantic relationship, or a sexual relationship, or that in the context of their relationship they socialised as parties who were in a relationship. The respondent accepted that he and the appellant spent significant amounts of time together, but not to the extent suggested by the appellant.[8] The respondent did not dispute that the parties spent time together on Christmas days, that they took holidays together (although it was common ground that they also holidayed separately too[9]) and that he engaged with the appellant's children.[10] However, he pointed to the fact that they did not live together, maintained separate homes, and maintained their financial independence, and contended that their property investments were undertaken for the purpose of wealth creation, and on the basis that they owned separate shares in each property and were each individually responsible for their share of any loans entered into for the purpose of purchasing those properties. The respondent's case was that after their relationship ended, they remained in a cordial relationship and continued to meet their financial obligations until the appellant ceased doing so.[11]
[7] RFD [324].
[8] RFD [320].
[9] RFD [349].
[10] RFD [321].
[11] RFD [343].
The learned primary judge correctly recognised that whether the parties were in a de facto relationship fell to be determined by considering the evidence at trial in light of the meaning of the concept of a de facto relationship. The term 'de facto relationship' is relevantly defined in s 13A of the Interpretation Act 1984 (WA) (Interpretation Act) in the following way:
(1)A reference in a written law to a de facto relationship shall be construed as a reference to a relationship (other than a legal marriage) between 2 persons who live together in a marriage‑like relationship.
(2)The following factors are indicators of whether or not a de facto relationship exists between 2 persons, but are not essential -
(a)the length of the relationship between them;
(b)whether the 2 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 financial support, between them;
(f)the ownership, use and acquisition of their property (including property they own individually);
(g)the degree of mutual commitment by them to a shared life;
(h)whether they care for and support children;
(i)the reputation, and public aspects, of the relationship between them.
(3)It does not matter whether -
(a)the persons are different sexes or the same sex; or
(b)either of the persons is legally married to someone else or in another de facto relationship.
The learned primary judge concluded that the appellant had not established that the relationship between the parties was a de facto relationship. He was not satisfied having regard to the evidence presented, and because of his reservations 'about the integrity of the [appellant] and her evidence'.[12]
[12] RFD [458].
His Honour reached that conclusion by reference to the factors set out in s 13A(2). His Honour did not discuss the evidence in the context of the particular factors in s 13A(2) to which he considered that that evidence related. However, there can be little doubt as to the evidence which was relevant to those factors. It is convenient to collate that evidence by reference to those factors, for the purpose of illustrating why adverse findings that the learned primary judge made about the appellant's evidence mean that the primary appeal cannot succeed. Approaching the matter in that way, the learned primary judge's findings were, in summary, as follows.
(a) The length of the relationship between them
There was no dispute that the parties' relationship (however characterised) began in late 2000 and ended on 1 July 2007.[13] However, during 2005, there was a period when they were not in a relationship and each of them engaged in relationships with other persons during that period.[14]
(b) Whether the two persons have resided together
[13] RFD [47] - [49], [63].
[14] RFD [351].
The learned primary judge found that the parties did not live together.[15]
(c) The nature and extent of common residence
[15] RFD [443].
The respondent's case was that he owned a property (City Beach property), and that it had been his home and place of residence since 1986.[16] His evidence was that the City Beach property remained his residence during his relationship with the appellant and that at various times, his son and his nephew also lived at that property with him.[17] He said that renovations of the City Beach property were completed before the parties commenced their relationship. The respondent's evidence, which was accepted by the learned primary judge, was that he did not have any personal items other than a shaver and a toothbrush at the appellant's home, and when he stayed at the appellant's home, he said he brought his clothes for the following day.[18]
[16] RFD [61].
[17] RFD [62], [350].
[18] RFD [352].
When the parties' relationship commenced, the appellant owned a property in Dalkeith (First Dalkeith property). She lived there until January 2005, when she bought another property in Dalkeith (Second Dalkeith property).[19] In May 2006, the appellant purchased a further property in Dalkeith (Third Dalkeith property) in her sole name.
[19] RFD [65].
The appellant's evidence was that she bought the Third Dalkeith property for the respondent to live in with her and her children, while the Second Dalkeith property 'was rebuilt and finished ready for us to move back into to be our new family home'.[20] Her evidence was that she took out a substantial loan, which required significant monthly repayments, in order to purchase the Third Dalkeith property. The learned primary judge found that the appellant's evidence about the acquisition and use of the Third Dalkeith property did not make sense.[21] He described the appellant's claim that she chose to purchase the Third Dalkeith property (with the large mortgage and monthly repayments), as opposed to renting a house while the Second Dalkeith property was being rebuilt, as 'incongruous'[22] in circumstances where the respondent also owned the City Beach property.[23] The learned primary judge noted that no explanation had been given by the appellant as to why she would contemplate renting a property, or alternatively that she would purchase a property so as to avoid paying rent, but not instead seek to occupy the City Beach property which was available, and to which she claimed she had free access.[24] The learned primary judge also found that it made little sense to suggest that the City Beach property should be retained, or at least not tenanted, in the circumstances the appellant had described.[25]
[20] RFD [119].
[21] RFD [447].
[22] RFD [120].
[23] RFD [120].
[24] RFD [121].
[25] RFD [125].
Other evidence was also adduced by the appellant, apparently for the purpose of demonstrating the parties' common residence. The appellant claimed that the City Beach property was renovated by the respondent, that those renovations continued after their relationship commenced, and that she encouraged the respondent to finish the renovations to make the property 'more homely'.[26] The learned primary judge characterised the appellant's evidence in that respect as unhelpful.[27]
[26] RFD [128].
[27] RFD [130].
The appellant also claimed that she and the respondent both received mail addressed to each other at the City Beach property, the First Dalkeith property, the Second Dalkeith property and the Third Dalkeith property, through the whole of their seven‑year relationship. She provided some copies of correspondence. The learned primary judge noted that that correspondence was 'consistent with transactions associated with or arising from their joint ownership of property'.[28] His Honour held that the correspondence did not support the appellant's representation that such correspondence was received at the City Beach property throughout the whole of the parties' seven‑year relationship.[29] The learned primary judge found that, having regard to the nature of the correspondence, the appellant's representation 'was entirely misleading as to the nature of the relationship, of which [the correspondence] is said to be evidence'.[30]
[28] RFD [131].
[29] RFD [132].
[30] RFD [133].
The learned primary judge concluded that at no point did the appellant and the respondent have a common residence that was viewed by each of them as such.[31]
(d) Whether there is, or has been, a sexual relationship between them
[31] RFD [445].
The learned primary judge found that the parties spent time together and had a sexual relationship.[32]
(e)The degree of financial dependence or interdependence, and any arrangements for financial support, between them
[32] RFD [444].
There was no dispute between the parties that during their relationship they acquired a number of properties together. Evidence in relation to the acquisition of those properties appears to have been relied on by the appellant for the purpose of demonstrating the parties' financial interdependence.
The Eagle Bay property
In May 2002, the parties purchased a property in Eagle Bay (Eagle Bay property), as tenants in common in equal shares.
The appellant's evidence was that she and the respondent purchased the Eagle Bay property both to stay there, and also as an investment.[33] The respondent's evidence was that the appellant wanted to purchase the Eagle Bay property to holiday there with her children, but she could not afford to do so by herself, and asked him to jointly purchase it with her as it would be a good investment.[34]
[33] RFD [88].
[34] RFD [89].
When they purchased the Eagle Bay property, the parties entered into an agreement, which was prepared by an experienced family lawyer (who was a friend of the appellant). The agreement recognised that:
[t]he object of purchasing the property is to maximise rental income. By mutual agreement we will agree to use a management agent to rent the property. If the management agent does not have the property rented, then either party has the opportunity to utilise the property at a nominal rate … to cover expenses.[35]
[35] RFD [93].
The appellant's evidence was that she entered into that agreement for her own protection if she and the respondent were ever to separate. The respondent's evidence was that they entered into the agreement to record their understanding and make clear the purpose and intent of the investment. He said he agreed with the appellant that it was a good idea to enter into such an agreement so that if they broke up, the basis for their being involved financially was clear.[36]
[36] RFD [95].
Rent from the Eagle Bay property was paid into a joint account, and the parties contributed equally to the funding of borrowings for the property until 2010, when the appellant ceased making contributions.[37]
The Second Dalkeith property
[37] RFD [96].
In late 2004, the appellant decided she wanted to purchase the Second Dalkeith property and asked the respondent if he would purchase a half interest in that property until such time as she was able to acquire his interest, and on the basis that she would pay him rent at a market rate for his half of the property.[38] He agreed to do so, and they purchased the Second Dalkeith property as tenants in common in equal shares.
[38] RFD [66].
The respondent's case was that the purchase was funded by a deposit which he paid, but that the appellant later repaid half of that deposit to him.[39]
[39] RFD [69].
The appellant occupied the Second Dalkeith property from January 2005, and paid the respondent rent at a market rate from that point.[40]
[40] RFD [71].
In April 2005, the parties entered into an agreement relating to their rights in relation to the Second Dalkeith property if their relationship came to an end. That agreement was prepared by an experienced family lawyer. The agreement referred to the disposal of the property on 'separation'. The learned primary judge rejected the appellant's argument that that term was a term of art which exclusively applied to parties in a marriage or marriage-like relationship.[41] He found that the agreement did not refer to the existence of a de facto relationship.
[41] RFD [77].
By August 2005, the appellant was in a position to acquire the respondent's share in the Second Dalkeith property, and the parties executed a transfer so that the appellant became the sole registered proprietor.[42] The appellant paid the respondent an amount of principal and interest, to reflect the currency of his borrowing to support the purchase.[43] However, the respondent remained a guarantor of a loan that the appellant secured to buy his interest in the Second Dalkeith property.[44] The appellant remained the sole proprietor of the Second Dalkeith property until it was sold in 2009.[45]
The Cowaramup properties
[42] RFD [80].
[43] RFD [82].
[44] RFD [83].
[45] RFD [84].
In April 2006, the parties purchased two properties in Cowaramup (Cowaramup properties). It was common ground that the Cowaramup properties were bought as an investment opportunity.[46] The parties purchased each of the Cowaramup properties as tenants in common in equal shares. The purchases were funded by loans secured by registered mortgages.[47] The parties made equal loan repayments until 2010 when the appellant ceased making contributions. The Cowaramup properties were subsequently sold at a loss.[48]
The Claremont property
[46] RFD [105].
[47] RFD [97] - [101].
[48] RFD [102] - [104].
In April 2007, the parties purchased a property in Claremont (Claremont property). They purchased the property as tenants in common in equal shares. The purchase price was $4.5 million, but the parties borrowed $5.6 million to cover the purchase price and additional acquisition costs. Those funds were secured by mortgages over the Claremont property, the Second Dalkeith property and the City Beach property.
The appellant's case was that they purchased the Claremont property because the respondent was tired of living between their houses, and wanted a house they could call their own, and which would be their future home. Although their relationship ended in July 2007, the appellant's case was that the respondent convinced her that they should proceed with the purchase as it was a great investment.[49]
[49] RFD [108].
The respondent's version of events was that the appellant proposed the purchase of the Claremont property, on the basis that it was a great investment opportunity, and with a view to holding the property for about three years and then selling it for a profit. He said that their relationship ended not long after they agreed to purchase the Claremont property, but they remained friends and investment partners. He said that the appellant asked him if he wanted to proceed with the purchase, emphasised that it was a great buy and confirmed that she wanted to go ahead. The respondent said that after discussion, they proceeded to settlement.
The learned primary judge noted that the respondent's unequivocal evidence was that at no time did he consider the purchase of the Claremont property as anything other than an investment, that the settlement was effected after the end of the parties' relationship and was continued purely as a business proposition. The learned primary judge regarded the respondent's position as logical, in that his evidence was that there was no prospect that he and the appellant would use the Claremont property as their future home, because he could not afford to do so.[50]
[50] RFD [113] - [114].
The learned primary judge did not accept the appellant's evidence that the Claremont property was purchased by the parties in contemplation of the furtherance of a life together. Instead, his Honour held that:
I consider the [appellant's] description of the circumstances surrounding the [Claremont property] to be unreliable and bordering upon the fanciful in terms of the nature of the relationship between the [appellant] and the respondent; the more so given that the settlement on the purchase was completed after the parties' relationship had ended, but it was a common position that they would proceed with the same.[51]
The learned primary judge's conclusion in relation to the parties' property investments
[51] RFD [116].
The learned primary judge accepted the respondent's evidence that:
It was the joint expectation of both of the parties that their property acquisitions would return capital growth to them and that whatever the relationship may have been between the parties, they entered into a financial relationship with a degree of formality that is inconsistent with a finding of a de facto relationship between them; to the extent that the same would turn upon a consideration of the degree of financial dependence or interdependence between them and their ownership, use and acquisition of their property.[52]
[52] RFD [60].
The learned primary judge found that the appellant and the respondent 'entered into financial dealings with a mutual intention of securing a profit therefrom. … [T]his was the only common intention that the parties had as to the joint acquisition and use of property'.[53]
Other evidence in relation to the parties' financial arrangements
[53] RFD [446].
There was also evidence that renovations had been undertaken on some of the properties, and that the Second Dalkeith property was demolished and rebuilt. The appellant's evidence was that the respondent continued to use the City Beach property as his office, as the First Dalkeith property, Second Dalkeith property and Third Dalkeith properties did not have room for an office for him. The primary judge concluded that 'it beggars belief' that such a specific need as an office for the respondent was never included in the renovation or rebuilding plans for any of the properties.[54]
[54] RFD [318].
The learned primary judge concluded that 'other than in the context of property ownership and management thereof, the parties did not have joint accounts, and that there was no financial interdependence or dependence between them'.[55] His Honour noted that the appellant had complained about the respondent's lack of financial assistance given the amount of time she claimed he spent at her home, yet also complained that he did not pay her rent for parking his boat on one of her properties.[56]
(f)The ownership, use and acquisition of their property (including property they own individually)
[55] RFD [451].
[56] RFD [451].
The learned primary judge found that the appellant was 'not unsophisticated in business dealings particularly to do with property … and [her] sophistication in matters of property and her opinion was valued by the respondent to the extent that he took on significant financial commitments jointly with [the appellant] in the hope of realising gains'.[57]
[57] RFD [449].
The learned primary judge found that the parties held the various investment properties (Properties) as tenants in common, and that
[t]hey accounted to each other in terms of their commitment and their financial obligation to each other continued beyond their relationship for several years. It was only after [the appellant] defaulted in her obligations and [the respondent] commenced proceedings to enforce the same, that proceedings [in the Family Court] were commenced, and commenced after such a lapse of time that leave was required for [the appellant] to do so.[58]
[58] RFD [448].
He also found that the management of the parties' property investments was consistent with them operating at arm's length, in that there was accounting between them, the accounts were managed by the appellant's bookkeeper, and detailed accounts were provided to each of the parties for the purposes of their separate preparation of their tax returns.[59] If one party's contribution fell short, the appellant's evidence was that any such shortfall was subsequently accounted for and made good.[60]
[59] RFD [345].
[60] RFD [346].
The learned primary judge found that other than to support their investments in real estate, the parties did not maintain a joint account, nor was there any financial intermixture between them.[61]
[61] RFD [347].
As for the Second Dalkeith property, it was owned by the appellant in her sole name and when it was sold there was no interparty accounting for the proceeds of the sale.[62]
[62] RFD [334].
In relation to the Claremont property, the learned primary judge accepted the respondent's evidence that the parties could not have afforded to maintain the Claremont property, if it was to be their principal place of residence. The learned primary judge accepted that it was never intended that the Claremont property would be the parties' joint principal place of residence, and that it was always intended as an investment.[63]
(g) The degree of mutual commitment to a shared life
[63] RFD [342].
There was some evidence as to whether the respondent had proposed marriage to the appellant. The learned primary judge described the appellant's evidence on that issue as 'at its highest, fluid'.[64] In various affidavits and in her evidence at the earlier trial she had claimed that she had never accepted the respondent's proposals of marriage, that she could not recall verbally retracting her acceptance (of his marriage proposal), that he had proposed marriage and that she had said 'okay', and that while there was no announcement to family members and close friends of their engagement, her mother and father were aware of it.[65]
[64] RFD [252].
[65] RFD [252].
The learned primary judge rejected the appellant's claim that the respondent had proposed marriage. He did so on the basis that he accepted the respondent's evidence (in which he consistently and unambiguously denied proposing marriage) as being more reliable than the appellant's evidence, and that he regarded the appellant's evidence on this issue as unsatisfactory given the inconsistencies in it, and her presentation as a witness.[66] The learned primary judge concluded that had the respondent proposed marriage to the appellant, she would both have accepted and made such acceptance widely known.[67]
Testamentary dispositions
[66] RFD [253] - [255].
[67] RFD [257].
The learned primary judge found that there was no evidence of any testamentary disposition made by the parties in favour of the other, nor of any evidence that during their relationship they had made binding nominations made in favour of each other in the event of death.[68]
Health cover
[68] RFD [454].
The learned primary judge found that the parties did not share family health cover.[69]
Counselling
[69] RFD [453]
The appellant relied on evidence that the parties had engaged in relationship counselling. The learned primary judge noted that the need for the counselling sessions was contrary to the appellant's presentation of their relationship as an enduring loving one. The way in which her case was presented led the learned primary judge to have significant doubt as to whether she actually or reasonably believed that to be the case.[70]
[70] RFD [368].
The respondent's evidence was that he attended counselling because he hoped that it 'could help me with my communication to [the appellant] that I was not willing to commit to a long‑term and serious relationship'.[71] His case was that he engaged in counselling 'as an avenue for expressing clearly as to what he saw as the relationship, namely, a boyfriend/girlfriend relationship and not a committed marriage-like relationship',[72] but he did not dispute that he did not make his position clear in the course of counselling.[73]
[71] RFD [361].
[72] RFD [356].
[73] RFD [357].
Counsel for the appellant submitted that the reason that the respondent failed to tell the appellant his real position must have been that the relationship was not a casual sexual relationship. The learned primary judge rejected that submission, on the basis that there may have been many reasons why the respondent did not tell the appellant what his wishes were.[74] The learned primary judge concluded that the reason for the respondent's failure to tell the appellant his true feelings about the relationship 'is that consistent with the evidence of the respondent, albeit cynical, that he was enjoying the relationship, he found it a "stress relief", and that if he had made his position clear to the [appellant], he might have lost the benefits that he found in the relationship'.[75]
[74] RFD [364].
[75] RFD [367].
The learned primary judge found that there was no mutual commitment by the parties to a shared life.[76]
(h) Whether the parties care for and support children
[76] RFD [455].
The learned primary judge found that the parties had no children together and that it was a feature of the appellant's case that the respondent did not contribute to the support of her children.[77]
[77] RFD [444].
There was no doubt that the respondent had a caring relationship with the appellant's children, but his evidence was that he did not wish to be a father figure to them, as they had a father. The learned primary judge found that the fact that the respondent provided care and support to the children did not mean that the parties' relationship should be characterised as going beyond that of a 'boyfriend/girlfriend' relationship.[78]
The reputation, and public aspects, of the relationship between the parties
[78] RFD [370].
Prior to the retrial, the respondent's solicitors prepared a notice to admit facts, which referred to the appellant's preparation of her income tax returns for the financial years ending 30 June 2000 ‑ 30 June 2007. The appellant disputed a number of those facts, including that her tax returns each year were prepared by her accountant, Ms PC; that she had declared that she did not have a spouse, or did not identify any spouse in those returns; and that she did not declare any spouse's income for the purpose of determining her family adjusted taxable income.[79]
[79] RFD [136].
After lengthy cross‑examination, the appellant accepted, amongst other things, that her tax returns for the relevant years had been prepared for her by her accountant, Ms PC, on the basis of information provided by the appellant's bookkeeper, Ms JT, on the appellant's instructions. As for the fact that she disputed the denial in her tax returns of any spouse, the appellant acknowledged that her solicitor prepared the notice to admit on her instructions, and said that she disputed the fact that she had denied having a spouse, because no one ever asked her about those matters when preparing her tax returns. She then indicated that she wished to withdraw her denial of the fact that she had not declared a spouse in those tax returns.
The learned primary judge regarded the appellant's oral evidence as to the notice to admit facts, and the preparation of her tax returns, as 'highly unsatisfactory and in my view unreliable, and informs generally as to the [appellant's] presentation'.[80] His Honour concluded that the appellant's evidence in cross‑examination about the notice to admit facts
underscores the equivocation that infected all of the [appellant's] presentation when confronted with a matter where she was in a position of having to provide an answer that did not suit the scenario that she was presenting to the Court. She would attempt to absolve herself from responsibility, and at times ascribe blame either to her solicitor, and/or counsel, … her employee or her duly instructed accountant.[81]
[80] RFD [138].
[81] RFD [142].
The appellant's accountant, Ms PC, gave evidence. She confirmed that the inclusion of a spouse's income in a tax return was relevant for the purpose of calculating certain entitlements to tax rebates, and family tax benefits; confirmed the obligation on a taxpayer to provide correct information; was confident that she would have provided advice to the appellant about that obligation; and confirmed that she had no reason to question the fact that no spouse's name was included in the appellant's tax returns.[82]
[82] RFD [290] - [293].
The learned primary judge noted that Ms JT was not called to give evidence, but that her evidence would have been very helpful to the court with respect to a number of the appellant's claims.[83]
[83] RFD [143], [437].
The learned primary judge noted that this issue had been the subject of a similar exchange in the earlier trial, and that several pages of the transcript of that trial had been tendered in the retrial. The appellant's evidence in the earlier trial included her accepting that she had lied to the Australian Taxation Office 'without knowing' that she should have declared that she had a spouse; that she knew, when she filed her 2004 tax return, that she did not have a spouse; that she denied that she had given a considered response to the question on the tax return (on the basis that her understanding was that if a spouse was not paying they were not a spouse);[84] and that she claimed that she simply relied on her accountant and bookkeeper to prepare the tax returns, which she did not read before signing.[85]
[84] RFD [147].
[85] RFD [147].
The learned primary judge found that the appellant did not declare to the Australian Taxation Office that she was in a de facto relationship with the respondent or any person throughout the period that she claimed the parties were in a de facto relationship.[86]
[86] RFD [144].
The learned primary judge found that the appellant failed to indicate in her tax return that she was in a de facto relationship with the respondent, and that she claimed that this was because the respondent failed to contribute financially towards the support of her children.[87]
[87] RFD [452].
His Honour also noted that the appellant
has not sought to amend her taxation returns, despite an earlier claim [in the earlier trial] that she was willing to give an undertaking to do so, nor did she seek to correct the same in her evidence in chief when executing her affidavit, nor did she seek to correct the same when she was given the opportunity to do so at the commencement of her viva voce evidence.
Notwithstanding her apparent enlightenment during her cross‑examination [in the earlier trial] the [appellant] has been content to leave matters as they were, which, on her evidence, comprised false representations to the Australian Taxation Office. Given the claims by the [appellant] about certain tax implications as being the reasoning for the structure of some of the property transactions, it could not be said, on her case, that she was unsophisticated about taxation matters.[88]
[88] RFD [148] - [149].
The learned primary judge concluded that given the five‑year period between the earlier trial, and the retrial, it was 'quite extraordinary' that the appellant had not attempted to correct her assertions regarding her taxation returns.[89]
Loan applications
[89] RFD [150].
In support of her case, the appellant relied on loan applications the parties made to fund their purchase of some of the Properties. The documentation in relation to four such applications was tendered. The appellant deposed that the loan applications showed that the parties were living at the City Beach address, and that the de facto boxes on both application forms had been ticked. The respondent deposed that the handwriting in the forms was neither his nor the appellant's. The learned primary judge found that the documents contained inconsistencies - in some the parties were described as being in a de facto relationship and in others they were not so described.[90] In some of the forms, the appellant's residential address was described as the City Beach property, while in others the First Dalkeith property or Second Dalkeith property properties were said to be her address.
[90] RFD [201].
The learned primary judge accepted the respondent's evidence that in cases where he was a guarantor, he received only the guarantor pages of the loan applications for signature, and not the entirety of the document.
A mortgage broker who prepared the majority of the applications confirmed that he had ticked the de facto box on the applications, and that his instructions were predominantly given by the appellant, and not in the presence of the respondent.[91]
[91] RFD [220]
Although his Honour did not make an express finding to this effect, it is apparent that the learned primary judge did not regard the loan applications as supporting the appellant's claim that the parties were in a de facto relationship.
School forms
The appellant also relied upon references to the respondent in forms which were submitted to schools attended by the appellant's daughter. On one form, the respondent was named as a person who would support the daughter's application to attend the school. The appellant contended that it was the respondent who had insisted that the appellant's daughter attend the school, whereas the respondent's evidence was that he was not involved in the decision to send the appellant's daughter to the school.[92]
[92] RFD [231] - [233].
Also in evidence was an application form for the appellant's daughter to attend another school. In that form, the respondent was described, in the appellant's handwriting, as the 'Mother's Partner/Guardian'. The respondent acknowledged that he had signed the form, and acknowledged that he was aware of the description of him as the appellant's partner, but his evidence was that 'a boyfriend, girlfriend relationship … to me, it's the same as having a partner'.[93] He said he had not given much thought to the description 'guardian' but just signed the document.[94]
[93] RFD [237].
[94] RFD [237].
The learned primary judge accepted the respondent's evidence that in signing the form he was simply trying to assist the appellant as a friend, with whom he had a relationship, to secure a school enrolment for her child. His Honour did not consider that the document could be given greater weight than that in signing the document, the respondent accepted that he was the appellant's partner at the time, but not in a long‑term committed relationship.[95]
Evidence of family and friends
[95] RFD [238].
The appellant relied on the evidence of a number of witnesses who addressed the nature of the parties' relationship. The learned primary judge found one of those witnesses, Ms JF, to be an unimpressive witness, whose evidence was generally unhelpful.[96] As for the evidence of other friends of the appellant, his Honour concluded that none of that evidence was of such a nature and particularity that would determine the nature of the relationship
as being beyond that of friends, who were engaged in a sexual and romantic relationship and spent time together, went to social functions together and engaged, as a part of their relationship, with members of each other's families.
These are aspects of this matter that are beyond dispute.
In my finding however, there is nothing in the evidence of the [appellant's] witnesses, when considered individually and collectively, that defines the relationship between the parties as marriage-like.[97]
[96] RFD [298] - [301].
[97] RFD [260] - [262].
The learned primary judge found that the evidence of the appellant's children was not determinative of the relationship, and in part was likely to be reconstructed, or exaggerated, based on conversations with, or an understanding gleaned from, the appellant, or otherwise unreliable.[98]
[98] RFD [271], [274], [275], [279], [281] - [282].
The respondent's daughter gave evidence and was cross‑examined. Much of her evidence was not challenged. During the course of the parties' relationship, she was aware of the relationship, and knew that the parties spent time together. Her evidence was that the respondent continued to live at the City Beach property during that time, and while she knew he spent some time at the appellant's house, he had never mentioned that he intended to move out of the City Beach property, or live with the appellant. The learned primary judge rejected the appellant's submission that the respondent had misled his daughter about the extent and nature of his relationship with the appellant. He found that there was no obligation on the respondent to provide such information and noted that the absence of such information may be more consistent with the respondent's understanding that the relationship was merely a boyfriend/girlfriend relationship.[99]
[99] RFD [386].
The respondent's brother gave evidence, which was accepted by the learned primary judge, that during the period of the parties' relationship, he visited the respondent three or four times each year at the City Beach property, and on those occasions, the house was maintained, and there were signs that the respondent lived there, such as dishes in the sink, food in the fridge and recent newspapers lying around. At no time did the respondent mention that he intended to move out of the City Beach property or that he and the appellant were engaged, or otherwise intended to marry.[100]
[100] RFD [391] - [392].
The respondent's nephew gave evidence, which was accepted by the primary judge, that he lived at the City Beach property between December 2003 and April 2004, and that during that period, he recalled that the respondent spent some nights, but not a majority of nights, away from the home, and that he saw the appellant at the City Beach property on only a limited number of occasions.[101]
[101] RFD [404] - [408].
The respondent also relied on evidence from a long‑standing friend of his, Mr SW, whose evidence was accepted by the primary judge.[102] Mr SW said he saw the parties together on social occasions about two or three times a year, that the respondent continued to live at the City Beach property during the relationship, that the appellant told him that she did not wish to live at that property, and that the respondent had told him that he had consciously maintained his own home and separate financial affairs from the appellant, and that although they had acquired properties together, that was done as a joint business venture, and that those commercial dealings would continue regardless of their personal relationship.[103]
[102] RFD [415].
[103] RFD [409] - [415].
Mr WM also gave evidence, which was accepted by the learned primary judge. He was a long‑standing friend of the respondent, and saw him frequently during the period of his relationship with the appellant. His evidence was that he and the respondent had discussed personal issues, and that the respondent had told him that he had no interest in a serious relationship or in marrying the appellant. They had discussed the respondent's purchase of properties with the appellant as being on the basis of joint business dealings, and Mr WM counselled him against doing so.[104]
[104] RFD [421] - [426], [429] - [430].
Ms CL, the respondent's bookkeeper, also gave evidence, which was accepted by the learned primary judge. She went to the City Beach property to undertake her bookkeeping work, as the respondent kept all of his personal and business paperwork in his study there. Ms CL's evidence was that she observed that the respondent lived at the property, based on seeing his paperwork there, his shopping on the kitchen counter, and seeing the respondent when at the property dressed in both work and casual clothes. Ms CL's evidence was that she had never met the appellant, and that she had not been at the City Beach property on any occasion when Ms CL was there.[105]
Conclusion as to the parties' presentation to others
[105] RFD [416] - [420].
The learned primary judge found that the parties' presentation to others as being in a relationship was more consistent with them being in a boyfriend/girlfriend relationship and not more.[106]
Findings as to credibility
Findings based on presentation at trial
[106] RFD [457].
The learned primary judge made detailed findings in relation to the credibility of the appellant and the respondent. His Honour's findings in relation to the appellant's credibility were expressed in adverse terms. We have referred to some of those findings already, in the course of discussing the primary judge's findings in relation to the factors relevant to the characterisation of the parties' relationship.
Having seen and heard the evidence of the appellant, the learned primary judge concluded that the appellant
was ultimately prepared to say anything that she believed would advance her case, irrespective of the truth of the proposition being advanced by her.
I have no doubt that she actively misled the Court and on numerous occasions her evidence was simply incredible. Further, she was reluctant to accept any proposition that did not fit her scenario and when confronted with a proposition, for which she did not have an answer, she adopted an almost 'default position' using the words on multiple occasions 'we had a loving relationship'. At times, in my finding, the [appellant] openly lied and advanced propositions that simply did not bear scrutiny.[107]
[107] RFD [32] - [33].
The learned primary judge further concluded that the appellant
was unable to present her evidence … in a credible and believable way and there are many aspects of her evidence which raise serious concerns about her integrity and the way in which she presented to the Court. Her evidence was contradictory and in my view, was exaggerated to the point where I concluded that the applicant would say and do anything that she felt would advance her case and … would adopt a fall-back position that the parties had a 'loving relationship' and that any relevant omission [in her evidence was] 'an oversight'.[108]
[108] RFD [433].
In contrast, the learned primary judge accepted that the respondent gave credible evidence:
Overall, the respondent was significantly more credible than the [appellant] in the presentation of his evidence. He was prepared to accept propositions put to him against his interests and was prepared to acknowledge that over time he may have forgotten specific aspects of matters that were put to him; however overall, I consider him to be a far more accurate historian, who attempt to recount factual matters as accurately as he could.[109]
[109] RFD [34]; see also at RFD [327].
His Honour regarded the respondent's willingness to make concessions contrary to his own interests as standing in marked contrast to the appellant's position in her evidence.[110]
[110] RFD [327].
The learned primary judge concluded that '[o]verall, I found the respondent to be credible, and where there is a conflict between his evidence and that of the applicant, that his evidence was more reliable'.[111] His Honour preferred the evidence of the respondent and his witnesses to that of the appellant and her witnesses[112] and concluded, crucially, that '[a]t the point of any conflict between the evidence of the [appellant] and the respondent, and collectively in their cases, I prefer the evidence of the respondent'.[113]
The appellant's earlier Family Court proceedings against her former husband
[111] RFD [328].
[112] RFD [431].
[113] RFD [436].
One further issue, which has not yet been mentioned, contributed to the latter findings, namely the appellant's failure to disclose, until very shortly before the retrial, the file from the Family Court concerning the proceedings between the appellant and her former husband (earlier proceedings). Among the documents filed by the appellant in the earlier proceedings were two affidavits sworn by the appellant in support of her application for child support. By the time she swore those affidavits, the appellant was in a relationship with the respondent, which she claimed was a de facto relationship. However, in neither of those affidavits did the appellant refer to being in a relationship with the respondent.[114] Orders were made by the court in the earlier proceedings in 2001 and again in 2005, on the basis of financial statements made by the appellant. However, the appellant did not disclose to the court that there had been any change in circumstances relevant to her financial position, despite the fact that she subsequently claimed that she was in a de facto relationship with the respondent throughout that period.[115]
[114] RFD [151] - [154].
[115] RFD [154] - [160].
The appellant's explanation for not referring to the respondent in the earlier proceedings, in the context of the affidavits in which she claimed to have the sole care of the two children of the marriage, was that while the respondent was living with her and her children, he did not pay anything for the children.[116]
[116] RFD [250].
The learned primary judge found that the documents filed in the earlier proceedings were clearly relevant to the proceedings before him, had not previously been disclosed, were produced only on the first day of the retrial, and were not consistent with the appellant's representations in the proceedings.[117] His Honour found that the representations the appellant made in the earlier proceedings were 'inconsistent with the representations she now makes to the court in the current proceedings'.[118]
[117] RFD [39] - [40].
[118] RFD [161].
The learned primary judge found that '[t]he selective representation or avoidance of inconvenient evidence was a feature of the [appellant's] presentation'.[119]
[119] RFD [251].
Furthermore, the learned primary judge noted that the documents in the earlier proceedings had been prepared by an experienced family lawyer, who had advised the appellant about Part 5A of the Act and its relevance to the relationship between the parties. His Honour noted that there were
two available scenarios, namely that [the lawyer], as an officer of the Court, was complicit in the [appellant] misleading the Court, or that the [appellant] is now attempting to mislead the Court [that is, by her claim that she and the respondent were in a de facto relationship]. The latter in my view is the more probable.[120]
The appellant's evidence as to non-financial contributions
[120] RFD [162].
In the trial before the learned primary judge the appellant sought to rely on a document which purported to summarise the non-financial contributions she claimed to have made on behalf of both parties. In cross-examination, the appellant agreed that information she had included in that document was incorrect, or 'an oversight', or an exaggeration. The learned primary judge concluded that
[i]t beggars belief that the [appellant] was so recklessly indifferent to the truth or otherwise of matters, that she had deposed to or other evidence that she sought to lead without any apparent form of review over nearly some five years from the point of the first trial; and the more particularly so given, that she was in a position of having to re‑agitate the same issue at a rehearing, where during the first trial her evidence had not been accepted by the trial judge.[121]
[121] RFD [244].
Having taken into account the factors in s 13A(2) of the Interpretation Act the learned primary judge ultimately concluded that:[122]
On balance, I am not satisfied that the parties were in a de facto relationship.
Their presentation as being in a relationship is more consistent, in my finding, with them being in a 'boyfriend/girlfriend' relationship, and not more so.
I am not satisfied on the basis of the evidence presented to me and in the face of my considerable reservations about the integrity of the [appellant] and her evidence, that she has demonstrated, on balance, that the relationship between the parties was a de facto relationship, such as to enliven the provisions of Pt 5A of the Act.
The nature of the primary appeal
[122] RFD [456] - [458].
The appeals lie to this court pursuant to s 211(3) of the Act, read with s 36(4)(b) of the Act. Whatever the standard of review[123] (whether an appeal in the strict sense, or an appeal by way of rehearing) the appellant must nevertheless demonstrate error on the part of the court below.[124] The appellant must demonstrate that the orders made by the primary judge were the result of some legal, factual or discretionary error.[125]
[123] Cf H v P [2011] WASCA 78 [48]; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 [12] ‑ [13].
[124] H v P [42]; Cf Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [12] ‑ [14].
[125] D v B [No. 2] [2012] WASCA 265; H v P [42] referring to Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23].
The determination of the question at the heart of the primary appeal, namely whether the parties were in a 'marriage-like' relationship, having regard to the factors in s 13A of the Interpretation Act, may be said to involve elements of fact, degree and value judgment, and draws upon a judge's experience and familiarity with the nature of the subject matter.[126]
[126] H v P [45].
Where findings or conclusions involve elements of fact, degree, opinion or judgment, the demonstration of error may not be straightforward. The difficulty in doing so may arise in part from the unwillingness of the appeal court to be persuaded that it is in as good a position as the trial judge to deal with the issues, or because the nature of the issue is one such that, while not a discretion, there cannot be said to be one correct answer. In such cases the availability of a different view, indeed even perhaps the preference of the appeal court for a different view, may not be alone sufficient to demonstrate error. The conclusion of error will not necessarily be arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge. Nevertheless, even if the question is one of impression or judgment, a sufficiently clear difference of opinion may necessitate the conclusion that the trial judge was wrong, and that the appeal court must interfere.[127]
[127] H v P [47], quoting Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 at [24], [25], [28], [29] (Allsop J, Drummond and Mansfield JJ agreeing).
While there are some analogies between the determination of whether a relationship was a 'marriage-like' one, and the exercise of a discretionary judgment, the resolution of the primary appeal does not require consideration of whether the principles applicable to appeals against discretionary judgments should also apply in cases of this kind.[128]
[128] Cf H v P [48] and the cases cited therein.
In relation to the costs appeal, however, the decision whether to make an order for costs, and more particularly whether to make an order that costs be paid on an indemnity basis, involves a discretionary judgment, and the principles which regulate the circumstances in which an appellate court may review the exercise of a judicial discretion apply.[129] Before it intervenes, an appellate court must be satisfied that the order made stands outside the limits of a sound discretionary judgment.[130] In order to establish that that was so, an appellant must establish either an express error (namely that the primary judge acted upon a wrong principle, mistook the facts, took into account an irrelevant consideration, or failed to take into account a relevant consideration) or demonstrate that an error can be inferred.[131] An error may be inferred if the order under appeal is shown to be unreasonable or plainly unjust.[132]
The primary appeal - grounds of appeal
[129] House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 - 505 (Dixon, Evatt & McTiernan JJ).
[130] House v The King (504 ‑ 505); Norbis v Norbis[1986] HCA 17; (1986) 161 CLR 513, 520 (Mason & Deane JJ).
[131] House v The King(504 - 505).
[132] House v The King(504 - 505).
The grounds of appeal in the primary appeal are lengthy. In summary, they are to the following effect.
In ground 1, the appellant contends that the learned primary judge erred in fact or law in failing to make a finding as to whether the appellant believed she was in a long‑term committed relationship with the respondent, that the learned primary judge appeared to have accepted that the appellant had such a belief, and that he should have made such a finding, having regard to certain aspects of the evidence of the respondent's conduct, which supported an inference that the appellant believed that she was in a long‑term committed relationship with the respondent.
In summary, ground 2 contends that the learned primary judge erred in fact in various respects, namely as to his finding that the counselling ran contrary to the appellant's representation of the relationship as an enduring loving one; that the appellant's evidence as to the time the parties spent together was inconsistent; that the respondent's care and support for the appellant's children did not give rise to an inevitable finding that the parties' relationship was more than a boyfriend/girlfriend one; that the fact that the respondent signed the school form as the 'Mother's Partner/Guardian' should not be regarded as evidence that the relationship was more than a boyfriend/girlfriend relationship; that the respondent's failure to inform his daughter of how much time he spent with the appellant may be more consistent with the respondent's understanding of the relationship as a boyfriend/girlfriend relationship; and that the respondent's failure to inform his friends of how much time he spent with the appellant was indicative of his view that the relationship was a casual one, with no expectation of enduring commitment.
Ground 3 is to the effect that the learned primary judge failed to make material findings of fact, and should have found: that the parties spent two to three nights per week together; that they engaged in 12 counselling sessions; that the respondent spent 13 holidays with the appellant, including a number with her and her children, or with friends of the respondent and their children, and that evidence was not consistent with a boyfriend/girlfriend relationship; that the parties attended family occasions including Christmas with their family members and parents, and that evidence was not consistent with a boyfriend/girlfriend relationship; that the parties relationship extended over a six and a half‑year period over which (apart from one short period) they spend two to three nights a week together; that the learned primary judge found that the parties' financial relationship was arranged with a degree of formality inconsistent with a de facto relationship, and amounted to a finding that the parties had two separate relationships - a romantic relationship and a business relationship - a finding which was not explained.
The essence of ground 4 is that the learned primary judge should have found that the parties were in a de facto relationship, having regard to the matters raised in grounds 1 to 3, and to the fact that over the six and a half‑year period of their relationship or a material part of it: the appellant believed that she was in a long‑term committed relationship with the respondent; the respondent did not inform her that he did not wish to be in such a relationship with her; the respondent did not, by his conduct, indicate to the appellant that he did not wish to be in such relationship with her; and that the respondent's conduct in respect of the appellant and her children over the duration of their relationship was consistent with the respondent being in a de facto relationship with the appellant.
Primary appeal - ground 1 - disposition
Ground 1 contends that the learned primary judge erred in failing to make a finding as to whether the appellant believed she was in a long‑term committed relationship with the respondent.
Ground 1 has three planks, which in summary are:
(a)that the appellant's belief - that she was in a long‑term committed relationship with the respondent - was material;
(b)that the learned primary judge appeared to have accepted that the appellant had that belief; and
(c)in any event, the learned primary judge should have made such a finding, having regard to the evidence in relation to the respondent's conduct: that the respondent was aware that the appellant believed she was in a long‑term committed relationship with him, but that he had not at any time, including in the counselling sessions, told the appellant he did not wish to be in a long‑term committed relationship with her; and that the learned primary judge found that the reason the respondent did not tell the appellant his view because he enjoyed the relationship and thought that if he told the appellant, he might lose the benefits of the relationship.
The appellant's contention on ground 1 amounted to this:[133] if one party subjectively believes that the relationship is a marriage-like one and the other party subjectively believes that it is not but does not communicate that subjective belief to the first party, then the relationship is, nevertheless, a marriage-like one if the second party conducts himself so as to allow the inference to be drawn that he did subjectively intend to have a marriage-like relationship.[134] Although the ground of appeal is expressed in terms of the appellant's belief, counsel for the appellant elided the concepts of belief and intention.[135]
The question of intention in relation to whether the parties are in a de facto relationship
[133] ts 22.
[134] ts 12, 22.
[135] See eg ts 3.
The appellant's submissions revealed a misunderstanding of the relevance of belief or intention in the determination of whether the parties to a relationship are in a de facto relationship.
The statutory question to which s 13A(1) of the Interpretation Act is directed is whether the parties' relationship is one 'between two persons who live together in a marriage-like relationship'. To determine whether a relationship is 'marriage-like' requires an overall assessment of the facts and the relevant elements of the relationship.[136]
[136] G v O [59]; H v P [55].
The concept of a marriage-like relationship involves a consensual union which is intended by the parties to endure. In the case of a marriage, the common intention to have an enduring relationship is manifested by a formal declaration or vow. In the case of a 'marriage‑like' relationship, the intention need not be, and will not usually be, formally declared, but may be otherwise manifested in the words and conduct of the parties to the relationship.[137]
[137] G v O [58] and the cases cited therein.
It is the common intention of the parties as to what their relationship is to be, and to involve, and as to their respective roles and responsibilities, that primarily determines the nature of that relationship.[138] In cases of a 'marriage-like' relationship, what is relevant is the parties' common intention as to matters that are characteristic of a marriage, but that do not depend upon the formal legal status thus acquired.[139]
[138] MW v Department of Community Services [2008] HCA 12; (2008) 82 ALJR 629 [13] (Gleeson CJ); G v O [58].
[139] MW v Department of Community Services (Gleeson CJ).
The parties' common intention may be expressed, or it may be implied.[140]
[140] MW v Department of Community Services (Gleeson CJ).
Where the parties' relationship includes elements that are generally characteristic of a marriage - co-habitation, financial interdependence, and so on - what is significant is the reason for the parties' adoption of those elements.[141] Unless those elements reflect a common intention to form a consensual union which will endure, then those aspects of the relationship cannot in themselves justify a conclusion that the relationship should be characterised as 'marriage-like'.
[141] Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164, 173 (O'Loughlin J); Pelka v Secretary, Department of Family and Community Services [2006] FCA 735; (2006) 151 FCR 546 [39] (French J); G v O [58].
The common intention of the parties is therefore an important consideration in determining whether a relationship is marriage-like.[142]
[142] G v O [58] and the cases cited therein.
It is the parties' common intention which is critical. A subjective belief or intention held by one party as to whether their relationship is 'marriage-like', is not relevant. Further, an intention on the part of one party to form a consensual union which will endure will not suffice to characterise a relationship as 'marriage-like', any more than a wish on the part of one party to a relationship to get married brings about a marriage.
Whether the parties to a relationship are in a 'marriage-like' relationship requires an objective assessment of all of the facts and circumstances.
Why ground 1 fails
Ground 1 has no merit, for the following reasons.
The first is that the appellant's contention, referred to in [113] above, is misconceived. As explained above and in [128] ‑ [133] below, it is the parties' manifestation of a common intention which is ultimately relevant.
Insofar as counsel for the appellant submitted that subjective intention was relevant in the manner he alleged, the only support in authority was claimed to derive from Chan v Mazurkiewicz.[143] In particular, reliance was placed on what Le Miere J said at paragraph [66] of Chan where his Honour drew on observations by Murphy JA in H v P:
[66]In those paragraphs of the judgment in S v B referred to by Murphy JA, Dutney J, with whom McPherson and Williams JJA relevantly agreed, referred to a passage in the judgment of Mahoney JA in Hibberson v George (1989) 12 FAM LR 725, 739 - 740 where Mahoney JA, with whom Hope and McHugh JJA agreed, spoke of the de facto relationship as follows:
'There is, of course, more to the relevant relationship than living in the same house. But there is, I think, a significant distinction between the relationship of marriage and the instant relationship. The relationship of marriage, being based in law, continues notwithstanding that all of the things for which it is was created have ceased. Parties will live in the relationship of marriage notwithstanding that they are separated, without children, and without the exchange of the incidents which the relationship normally involves. The essence of the present relationship lies, not in law, but in a de facto situation. I do not mean by this that cohabitation is essential to its continuance: holidays and the like show this. But where one party determines not to "live together" with the other and in that sense keeps apart, the relationship ceases, even though it be merely, as it was suggested in the present case, to enable the one party or the other to decide whether it should continue.'
Dutney JA then said, in the passage referred to by Murphy JA in H v P:
'Applying the passage of Mahoney JA in Hibberson v George, which I set out earlier, a de facto relationship ends when one party decides he or she no longer wishes to live in the required degree of mutuality with the other but to live apart. 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. I do not think it is necessary that the other party agree with or accept the decision. Once the parties cease to jointly wish to reside together in a genuine domestic relationship, a situation usually ascertained by looking objectively at the whole circumstances of the relationship, the de facto relationship ceases. The relationship ceases even though one party is still anxious to try to save it.'
In order to bring this claim within the provisions of pt 19 of the PLA the respondent, who was the plaintiff at trial, needed to prove the existence of the relationship as at 21 December 1999 when the part commenced. Perhaps because of the appellant's denial at trial that a de facto relationship had ever existed, the evidence focussed on the creation of the de facto relationship. In any event, apart from events which suggest any such relationship had ceased there is a paucity of evidence as to the nature of the relationship as at 21 December 1999. In this regard there is a difference between a marriage and a de facto relationship. In a marriage, the parties remain married and are presumed to be living as a 'couple' unless the party wishing to end the relationship proves a separation for the statutory period. In a de facto situation it is the party asserting the relationship that must prove cohabitation of the required quality. In Pavey v Pavey, on which the respondent relied, the Full Court of the Family Court in dealing with what constitutes 'separation' between two parties to a marriage who continue to reside in the same residence said at 75,213 - 75,214:
'In such cases, without a full explanation of the circumstances, there is an inherent unlikelihood that the marriage has broken down, for the common residence suggests continuing cohabitation. Such cases therefor require evidence that goes beyond inexact proofs, indefinite testimony and indirect inferences. The party or parties alleging separation must satisfy the Court about this by explaining why the parties continued to live under the one roof, and by showing that there has been a change in their relationship, gradual or sudden, constituting a separation.
The reverse applies in the case of a de facto relationship in the sense that the PARTY asserting the continuing relationship must prove the positive aspects of the relationship rather than the party asserting separation being required to prove the negatives [48] - [50].'
[143] Chan v Mazurkiewicz [2015] WASC 432.
In our view that passage does not support the contention advanced by counsel for the appellant. Indeed, it is contrary to it. In the passage cited from Hibberson v George, the court was not suggesting that a party's subjective intention about living together, as opposed to their conduct, was relevant. So much appears from the expression 'where one party determines not to "live together" with the other and in that sense keeps apart'. Plainly the court was referring to the physical manifestation of a state of mind.
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'.
In this context, in our view, ground 1 falls short at a number of levels in demonstrating error by the judge. First, a subjective and (as it were) privately‑held intention by the appellant would, on its own, be incapable of establishing a marriage‑like relationship within the meaning of s 13A(1) of the Interpretation Act.
Secondly, error by the judge is not established by contending that the respondent conducted himself so as to allow the appellant, who had her own belief (it may be assumed for the purposes of the argument at this point) as to the nature of the relationship, to infer that the respondent also subjectively intended to have a marriage‑like relationship. That would only indicate that the appellant had her own subjective belief as to the nature of the relationship, coupled with a belief that the respondent shared the same subjective belief. It is evidence of the state of the appellant's own belief and does not establish a common intention of both parties in fact.
Thirdly, and related to the second matter, the question is ultimately not whether either party inferred, from the conduct of the other, the existence of a marriage‑like relationship at the time, but whether the court is satisfied, on all the evidence before it, that the parties actually lived in a marriage‑like relationship for the statutory period. Conduct by one party, B, from which the other party, A, inferred at the time that B intended an enduring and settled relationship, may be relevant to whether the parties lived in a marriage‑like relationship at the time. Also, insofar as A's inference at the time manifested itself in conduct by A, that conduct by A may be relevant to determining the existence of a marriage‑like relationship between the parties. But ultimately it is not A's inference which is of significance, but the manifestation of a common intention to an enduring union between the parties.
There are two further reasons why ground 1 must fail. Each turns on the primary judge's findings as to the credibility of the appellant and the respondent.
Throughout the judgment, the learned primary judge made numerous adverse findings as to the appellant's credibility, leading him to reject her evidence in many respects, and to prefer the evidence of the respondent to that of the appellant in every instance in which their evidence was in conflict.[145] The learned primary judge made adverse findings in relation to the appellant's credibility in respect of all of the factors bearing on the existence of a de facto relationship, other than in relation to those where there was no dispute between the parties. We have referred to those credibility findings in the overview (above) of his Honour's reasons. Having regard to the evidence, and in the face of his considerable reservations about the appellant's credibility, the learned primary judge concluded that the appellant had failed to establish that the parties' relationship was, as she had claimed, a de facto relationship.[146] That conclusion necessarily involved the implicit conclusion that the parties had no common intention to form a consensual union which would be an enduring one.
[145] RFD [436].
[146] RFD [458].
The principles in relation to awards of costs, on an indemnity basis, are well established. His Honour set them out in some detail. It was not suggested that he erred in his summary of those principles. For present purposes, it may simply be reiterated that:[189]
[189] See, for example, D & D (Costs) (No 2) (2010) FLC 93-435; Kohan and Kohan (1993) FLC 92-340; Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248, 256;Yunghanns and Yunghanns (2000) FLC 93-029; Munday v Bowman (1997) FLC 92-784, 84,660; Phillips and Hansford [2020] FamCAFC 28 [35] - [37].
(a)In the Family Court, costs do not follow the event as a matter of course. However, where the justice of the matter requires, the court may make such order as it considers just.
(b)The Family Court should not lightly depart from the ordinary rules relating to costs between party and party. The circumstances justifying any such departure should be of an exceptional kind.
(c)Indemnity costs are still an exception in the Family Court.
(d)The categories of circumstances which enliven the discretion to award indemnity costs are not closed.
(e)It is not necessary to enliven the discretion that some collateral purpose or species of fraud be established against the party against whom an indemnity costs order is sought.
(f)Examples of the sorts of cases in which an order for indemnity costs may be warranted include:
i.Where the action was commenced or continued in circumstances where a party, properly advised, should have known that he had no chance of success. In that kind of case, the action must be presumed to have been commenced or continued for some ulterior motive or because of some wilful disregard of the known facts.
ii.Evidence of particular misconduct causing loss of time to the court and to other parties.
iii.The making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions.
iv.An imprudent refusal of an offer to compromise.
An indemnity costs order may be appropriate in situations which are shown to involve some element of improper, or at least unreasonable, conduct by a party or the party's legal advisers.[190] An indemnity costs order will constitute an appropriate sanction marking the disapproval of improper or unreasonable conduct.[191]
[190] Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S) [10].
[191] Swansdale Pty Ltd v Whitcrest Pty Ltd [10].
Ground 2 of the grounds of appeal fails for the following reasons.
It is apparent that the learned primary judge considered that an order that the respondent's costs be paid on an indemnity basis was warranted for two reasons. First, he considered that costs should be paid on an indemnity costs basis in response to the appellant's conduct as a litigant in the proceedings - she had 'showed a wilful disregard of known facts', she 'actively attempted to mislead and she advanced evidence that did not stand, and could not reasonably have withstood scrutiny'. The learned primary judge characterised the appellant's conduct as a litigant as falling 'well short of satisfactory'. Secondly, the learned primary judge concluded that the appellant 'refused an offer of settlement imprudently and persisted with a case which, on proper reflection should have been seen as unmeritorious'.[192]
[192] RFD (Costs) [82] - [83].
The learned primary judge considered that these two categories of conduct on the part of the appellant, considered 'cumulatively', warranted relieving the respondent, as the successful party, from the burden of costs he should not have been required to incur.[193]
[193] RFD (Costs) [84].
The appellant submitted that in so far as the learned primary judge found that the appellant pursued the litigation in 'wilful disregard of known facts', it was unclear what known facts the learned primary judge was referring to. We are unable to accept that submission. The learned primary judge was clearly referring to the findings he made in his reasons for decision after trial, in which he was critical of the appellant's evidence because it was at odds with facts known to her. We should add that there is also no doubt what findings the learned primary judge had in mind when he referred to the appellant as having actively attempted to mislead and as having advanced evidence that did not stand, and could not reasonably have withstood scrutiny. It is not necessary to set out the various findings in their totality. Some examples will suffice.
His Honour rejected the appellant's evidence that she and the respondent received mail addressed to each of them at either the City Beach property, the First Dalkeith property, the Second Dalkeith property, or the Third Dalkeith property. The learned primary judge rejected as 'entirely misleading'[194] the appellant's representation that the correspondence she relied upon demonstrated that mail was sent to each of the parties at the various addresses throughout the whole period of their relationship. That conclusion was clearly predicated on the view that the appellant knew that the evidence she gave about the correspondence was at odds with the actual factual position (that is, facts known to her).
[194] RFD [133].
The learned primary judge's findings in relation to the appellant's tax returns is another example of his Honour's findings that the appellant had pursued the litigation in wilful disregard of known facts. His Honour found that despite the appellant's acceptance, in the previous trial, that having regard to her case in these proceedings, her failure to declare in her tax returns that the respondent was her de facto spouse constituted a false declaration, she had not sought to correct that issue with the Australian Taxation Office, and proceeded to rely on the tax returns in the trial, knowing that, on her case, they were wrong.[195]
[195] RFD [148] - [149].
A further example is the appellant's continued reliance on the loan applications, as evidence of the parties' public representation of the nature of their relationship, and as to the other factors relevant to whether they were in a de facto relationship, despite the fact that the appellant admitted that the documents contained representations which were false, or which were inconsistent with other evidence she had given.[196]
[196] RFD [206] - [208].
The reason why the appellant's conduct in relying on such evidence was relevant to an indemnity costs order was clearly that her reliance on this evidence prolonged the trial, and wasted the time and resources of the court and of the respondent. An award of indemnity costs marks the court's disapproval of such conduct by the litigant ordered to pay the costs.
Counsel for the appellant also submitted that because the appellant had an arguable case, those aspects of her conduct which were relied upon by the learned primary judge did not form an appropriate basis for the making of an indemnity costs order.[197] That submission is untenable. A party with an arguable case may still engage in conduct which results in the other party incurring costs unnecessarily, such as by responding to unmeritorious arguments, or evidence which, on analysis, does not withstand scrutiny.
[197] Appellant's submissions (Costs) [12]; WAB Costs 11.
Counsel for the appellant also submitted that the learned primary judge failed to take into account, or to deal with, the case advanced on behalf of the appellant, namely that she believed she was in a de facto relationship with the respondent, and that the respondent was aware of this, but conducted himself in a way which supported her belief.[198] That appeared to amount to a submission that the respondent was to blame for the litigation because he had failed to make clear his true position to the appellant.[199] That submission is of no assistance to the appellant's case on the costs appeal.
[198] Appellant's submissions (Costs) [12]; WAB Costs 9.
[199] Appellant's submissions (Costs) [12]; WAB Costs 9 - 10.
In response to the learned primary judge's second basis for the award of indemnity costs, and his reference to the appellant persisting with an unmeritorious case, counsel for the appellant submitted that the appellant's case was not without merit. He submitted that the learned primary judge's remarks appeared to be at odds with this court's decision in G v O,[200] because this court did not take the view that on the known facts the claim was plainly unmeritorious.[201] Counsel for the appellant also submitted that in its original grant of leave to permit the appellant to proceed out of time, the Family Court found that the appellant had a prima facie case.
[200] G v O [2018] WASCA 211; (2018) 53 WAR 393.
[201] Appellant's submissions (Costs) [12]; WAB Costs 10.
The learned primary judge did not find that the appellant's case was without merit. He found that in light of the admitted personal and sexual relationship subsisting between the parties, the appellant's claim was 'not a claim made without any basis'.[202] That was entirely consistent with the observation made by this court in G v O that '[i]t was common ground between the parties that the present is not a "black and white" case' and to the reasons why that was so: the parties had maintained a relationship, including a sexual relationship, for six and a half years, had publicly presented as a couple, but never shared a full‑time common residence and largely maintained financial independence.[203]
[202] RFD (Costs) [53].
[203] G v O [83].
Turning next to the appellant's contention that the learned primary judge erroneously found that the appellant pursued a wholly unmeritorious case, that contention must fail. His Honour's remarks must be read in their context. His Honour referred to the fact that the appellant 'refused an offer of settlement imprudently and persisted with a case, which on proper reflection should have been seen as unmeritorious' (emphasis added). On our reading, the learned primary judge concluded that at the point at which she rejected the settlement offer, it should have been apparent to the appellant that her case was unmeritorious. Persisting with the case from that point thus involved the pursuit of a case which was unmeritorious, and which would result in the respondent unnecessarily incurring costs he should not have incurred. There was no error on the part of the learned primary judge in characterising the appellant's conduct in that way.
As for the learned primary judge's reliance on the appellant's rejection of the settlement offer, the appellant submitted that at that stage, the respondent had not been cross‑examined, and in those circumstances, an indemnity costs order was not justified.[204] We are unable to agree. The transcript of the cross-examination of the appellant reveals that that cross-examination went particularly badly for the appellant. By way of example (and without intending to be exhaustive), she had admitted that her evidence on oath in relation to the tax returns was a lie, which she described as an oversight,[205] and an omission which she sought to blame on others,[206] her failure to rectify the false representation she had made in her tax returns had been identified, and explained as an 'oversight',[207] her failure to refer to her de facto relationship with the respondent in affidavits she swore in the earlier proceedings against her former husband had been revealed, together with her implausible explanation ('I didn't believe it was relevant'),[208] she accepted that her evidence that the respondent had told her he would make provision for her in his will was inconsistent with the evidence she gave in the previous trial and had not been mentioned in her evidence‑in‑chief, as she claimed that 'I'm remembering more things now than I had before';[209] and the inconsistencies in her evidence as to whether the respondent had proposed marriage and whether she had accepted had been identified.[210]
[204] Appellant's submissions (Costs) [12]; WAB Costs 10 - 11.
[205] ts 13.
[206] ts 35, 12 September 2019.
[207] ts 55.
[208] ts 17, 12 September 2019.
[209] ts 6, 13 September 2019.
[210] ts 29 - 30, 13 September 2019.
In those circumstances, we see no error in the learned primary judge's rejection of the appellant's submission (made to him on the costs application) that it was reasonable for the appellant to reject the settlement offer in order to await the respondent's evidence. His Honour's reasoning was, in summary, as follows:
•Given the history of the proceedings, it should have been apparent that the appellant's credibility was a critical element in the assessment of her case.
•An objective forensic assessment of the evidence that she had given and her cross-examination should have revealed that her credit was severely damaged.
•The appellant knew what the respondent's evidence had been in the previous trial, and knew that his evidence‑in‑chief in the present trial was consistent with that evidence, and she knew that his evidence had been preferred in the previous trial.
•To reject the offer was to assume a risk that the appellant's witnesses would perform better than they had in the previous trial, that their evidence would be accepted (over her evidence, given the risk of adverse credibility findings) and that the respondent's case would collapse notwithstanding that it had been consistently advanced in the previous trial, and in his evidence‑in‑chief in this trial.
•It was not reasonable to reject the offer and to await the respondent's cross-examination when the flaws in her own case were by then apparent.
•Failing a complete change in the evidence given by the respondent, a forensic assessment could have been made of the apparent merits or lack thereof of the appellant's case in order to determine whether the settlement offer should be accepted, especially having regard to the range of outcomes that the appellant might have achieved in a property settlement had she in fact been successful in establishing jurisdiction.
Far from seeing any error in his Honour's reasoning, we are entirely in agreement with it, especially given the favourable terms of the settlement offer, which would have permitted the appellant to walk away from the litigation without bearing any of the respondent's costs.
Counsel for the appellant also submitted, in the alternative, that if it was imprudent to reject the settlement offer, indemnity costs should operate only from the date of expiry of the offer.[211] That submission fails to recognise that the award of indemnity costs had two bases, which his Honour took into account cumulatively. The first basis - the appellant's conduct as a litigant which fell well short of satisfactory - applied primarily to the appellant's conduct in determining the content of her evidence‑in‑chief, and in her answers to cross-examination, which conduct was engaged in prior to the appellant's rejection of the settlement offer.
[211] Appellant's submissions (Costs) [12]; WAB Costs 11.
The appellant has not demonstrated any express error on the part of the learned primary judge, nor are we satisfied that error can be inferred on the basis that the indemnity costs order which his Honour made was unreasonable or plainly unjust. On the contrary, in the circumstances identified by his Honour, the indemnity costs order was not unreasonable or plainly unjust.
The costs appeal must be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IH
Research Associate to the Hon Justice Pritchard
23 FEBRUARY 2022
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: G -v- O [2022] WASCA 23 (S)
CORAM: MURPHY JA
PRITCHARD JA
MORRISON AJA
HEARD: 23 FEBRUARY 2022
DELIVERED : 25 FEBRUARY 2022
FILE NO/S: CACV 33 of 2020
BETWEEN: G
Appellant
AND
O
Respondent
FILE NO/S: 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 - Appeals from Family Court of Western Australia - Application for costs - Appeals wholly unsuccessful - Whether circumstances justify departure from presumptive position of no order as to costs - Conduct of appellant in pursuing appeal with poor prospects of success - Appellant's rejection of settlement offer
Legislation:
Family Court Act 1991 (WA), s 237
Result:
Costs order made
Category: B
Representation:
CACV 33 of 2020
Counsel:
| Appellant | : | Mr T B Lyons |
| Respondent | : | Dr R S Ingleby |
Solicitors:
| Appellant | : | Gibson Lyons Lawyers |
| Respondent | : | O'Sullivan Davies Lawyers |
CACV 95 of 2020
Counsel:
| Appellant | : | Mr T B Lyons |
| Respondent | : | Dr R S Ingleby |
Solicitors:
| Appellant | : | Gibson Lyons Lawyers |
| Respondent | : | O'Sullivan Davies Lawyers |
Case(s) referred to in decision(s):
MIB v JAP [2019] WASCA 175 (S)
JUDGMENT OF THE COURT:
At the conclusion of the hearing on 23 February 2022 we made an order in both the primary appeal and in the costs appeal, that the appellant pay the respondent's costs of the appeal, to be assessed if not agreed. We indicated that we would publish our reasons in due course. These are our reasons for making those costs orders.
The successful respondent in these appeals seeks an order that within 14 days the appellant pay the respondent's costs fixed in the sum of $30,000. The appellant contends that there should be no order as to costs or alternatively, that the appellant should pay the respondent's costs of the appeals to be assessed if not agreed.
For the reasons which follow, we are of the opinion that an order for costs should be made in each appeal, and that those costs should be assessed if not agreed.
In appeals of the present kind, this court has proceeded on the assumption that s 237 of the Family Court Act 1997 (WA) (Act) applies.[212] Neither party to the present appeals submitted to the contrary. We have also assumed that these appeals are proceedings under the Act, and so are covered by s 237. Even if that assumption is wrong, this court would in any event have power to make orders with respect to the costs of these appeals in the exercise of its general discretion as to the costs of appeals.
[212] See, for example, MIB v JAP [2019] WASCA 175 (S).
Subsection 237(1) of the Act makes clear that the starting point in relation to costs in proceedings under the Act is that each party is to bear their own costs. However, a court may depart from that position if it is of the opinion that the circumstances justify it in doing so, and subject to the provisions referred to in s 237(2) and any relevant rules.
Relevantly for present purposes, in considering what costs order, if any, should be made, the court must have regard to the matters set out in s 237(3).
The factors in s 237(3)(a), (c), (e) and (f) are, in our view, pertinent in the circumstances of these appeals.
Turning first to s 237(3)(e), in each appeal, the appellant was wholly unsuccessful. Given that costs do not follow the event, that result, of itself, does not warrant a departure from the usual no‑costs approach. However, in the present case, it is of significance that the appellant's decision to pursue the appeals had the result that the respondent was denied the immediate benefit of the judgment below in bringing about a conclusion to this protracted litigation.
Secondly, the conduct of the appellant - which arises for consideration under s 237(3)(c) - strongly favours a departure from the ordinary position as to costs. In our reasons for decision we found, in effect, that ground 1 of the primary appeal, which raised the question of intention, misconceived the legal position. In addition, the grounds of appeal did not challenge the learned primary judge's conclusion that there was no mutual commitment to a shared life. Furthermore, the decision of the primary judge turned substantially on his Honour's findings as to the credibility of the parties, but the grounds of appeal did not seek to impugn those findings, nor did the appellant's submissions address the criteria for appellate intervention in such a case. Absent a challenge to those findings, the primary appeal could not succeed. Finally, and leaving to one side those of the primary judge's credibility findings which were referrable to demeanour, we found his Honour's findings on credibility were amply sustained by the evidence. In all of those circumstances, the appellant must be regarded as having decided to pursue the primary appeal, when its prospects of success were, on any objective analysis, poor.
As for the costs appeal, it involved a challenge to a discretionary decision, which required the demonstration of express or inferred error. The appellant was unable to demonstrate an error of either kind.
Counsel for the respondent relied upon the appellant's rejection of an offer to settle the proceedings, which is a factor arising for consideration under s 237(3)(f). By letter dated 3 June 2020, the respondent made an offer of settlement in relation to the primary appeal (Offer). Acceptance of the Offer would have resulted in the primary appeal being dismissed without any costs consequences for the appellant. However, the Offer needs to be viewed in its totality. The Offer was, in fact, a counter offer which was sent in response to an offer apparently set out in a letter from the appellant's solicitors dated 29 May 2020. The terms of the latter offer were not disclosed to the Court. Furthermore, the terms of the Offer by the respondent were not confined to dismissal of the appeal, but extended to other matters, including the dismissal of other litigation between the parties in the Supreme Court, and to the treatment of certain joint debts of the parties. In our view, the reasonableness of the appellant's conduct in refusing the Offer cannot fairly be judged in the absence of an understanding of the implications of the Offer in its totality. Accordingly, we do not give weight to the appellant's rejection of the Offer as a factor supporting a departure from the usual approach to costs in relation to the primary appeal.
Furthermore, we note that the Offer was made prior to the costs appeal having been commenced (and prior to the primary judge making costs orders). The respondent submitted that the effect of the Offer would have seen the issue of the costs appeal dealt with. However, the terms of the Offer did not entirely dispose of the costs of the proceedings before the learned primary judge. For those additional reasons also, we do not give weight to the appellant's rejection of the Offer as a factor supporting a departure from the usual approach to costs in relation to the costs appeal.
Turning finally to s 237(3)(a), we have taken into account the finding by the learned primary judge that the respondent's financial position was more favourable than that of the appellant. While that finding of relative impecuniosity gives us some pause as to whether a costs order should be made, it does not preclude an order for costs, and does not outweigh the combined effect of the other factors, under s 237(3)(c) and (e), to which we have referred.
The respondent sought a single costs order in respect of both appeals. In our view, the costs of each appeal should be the subject of a separate order in each appeal.
As for the quantum of the costs, as the amount of costs sought by the respondent was not agreed by the appellant, and as the costs particularised in the respondent's schedule of costs did not include costs associated with receiving and considering the judgment, the preparation of costs submissions, and the costs of the hearing on 23 February 2022, the better course is to order that in each appeal the costs be assessed if not agreed.
The orders we made in each appeal were as follows:
CACV 33 of 2020
1.The appeal is dismissed.
2.The appellant pay the respondent's costs of the appeal to be assessed if not agreed.
CACV 95 of 2020
1.The appeal is dismissed.
2.The appellant pay the respondent's costs of the appeal to be assessed if not agreed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IH
Research Associate to the Honourable Justice Pritchard
25 FEBRUARY 2022