G v O
[2018] WASCA 211
•28 NOVEMBER 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: G -v- O [2018] WASCA 211
CORAM: MITCHELL JA
BEECH JA
PRITCHARD JA
HEARD: 15 NOVEMBER 2018
DELIVERED : 28 NOVEMBER 2018
FILE NO/S: CACV 70 of 2017
BETWEEN: G
Appellant
AND
O
Respondent
ON APPEAL FROM:
Jurisdiction : FAMILY COURT OF WESTERN AUSTRALIA
Coram: WALTERS J
Citation: G and O [2017] FCWA 65
File Number : PTW 5149 of 2010
Catchwords:
Courts and judges - Inordinate delay between trial and judgment delivery - Whether critical factual findings affected by an assessment of the credibility of witnesses - Requirement for reasons to explain that delay has not deprived the trial court of the capacity to properly consider the parties' cases on critical issues - Where finding made as to a critical issue where there is no evidentiary basis which is explained or discernible from the reasons considered in light of the evidence - Where inconsistent findings made on a central issue - Whether inadequacy of reasons and deficiency in factual findings give rise to miscarriage of justice
Family law - De facto relationships - Whether parties living together in a marriage-like relationship - Significance of a manifested mutual commitment to a shared life
Legislation:
Family Court Act 1997 (WA), s 205Z, s 205ZB, s 205ZG
Interpretation Act 1984 (WA), s 13A
Result:
Appeal allowed
Matter remitted for retrial
Category: A
Representation:
Counsel:
| Appellant | : | Dr P R MacMillan |
| Respondent | : | Dr R S Ingleby |
Solicitors:
| Appellant | : | Gibson Lyons |
| Respondent | : | O'Sullivan Davies Lawyers |
Case(s) referred to in decision(s):
Brown v Churchill [2006] WASCA 17; (2006) 31 WAR 246
Chan v Mazurkiewicz [2015] WASC 432
Clarence v Crisp [2016] FamCAFC 157; (2016) 311 FLR 433
Commonwealth v Australian Capital Territory [2013] HCA 55; (2013) 250 CLR 441
Dakhyl v Labouchere [1908] 2 KB 325
Expectation Pty Ltd v PRD Realty Pty Ltd [2004] FCAFC 189; (2004) 140 FCR 17
Forrest & Forrest Pty Ltd v Minister for Mines and Petroleum [2017] WASCA 153; (2017) 51 WAR 425
Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226
GLS v Russell-Weisz [2018] WASC 79; (2018) 52 WAR 413
H v P [2011] WASCA 78
Lynam v Director General of Social Security (1983) 9 Fam LR 305; (1983) 52 ALR 128
Minister for Immigration v SZVFW [2018] HCA 30; (2018) 92 ALJR 713
Monie v The Commonwealth [2005] NSWCA 25; (2005) 63 NSWLR 729
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
MW v Department of Community Services [2008] HCA 12; (2008) 82 ALJR 629
NAIS v Minister for Immigration [2005] HCA 77; (2005) 228 CLR 470
NRM Corporation Pty Ltd v ACCC [2016] FCAFC 98
O v G [No 2] [2013] WASCA 265
Pelka v Secretary, Department of Family and Community Services [2006] FCA 735; (2006) 151 FCR 546
R v Maxwell (Unreported, Court of Criminal Appeal, NSW, 23 December 1998)
Rollings v Rollings [2009] FamCAFC 87; (2009) 230 FLR 396
Scaffidi v Chief Executive Officer, Department of Local Government and Communities [2017] WASCA 222; (2017) 52 WAR 368
Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164
Sullivan v Trilogy Funds Management Ltd [2017] FCAFC 153; (2017) 255 FCR 503
Terry v Leventeris [2011] SASCFC 26; (2011) 109 SASR 358
The Queen v Dennis Bauer (a pseudonym) [2018] HCA 40; (2018) 92 ALJR 846
Truman and Clifton [2010] FCWA 91
Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816
JUDGMENT OF THE COURT:
Summary
The appellant and respondent were in a romantic relationship from late 2000 or early 2001 until 1 July 2007. After the relationship ended, the appellant applied to the Family Court of Western Australia for a declaration that a de facto relationship existed between the appellant and respondent. She also sought an order altering the parties' property interests.[1]
[1] Under s 205ZG of the Family Court Act 1997 (WA) (Act).
Relevantly, such an order could only be made if the Family Court was satisfied that there had been a de facto relationship between the appellant and respondent for at least 2 years.[2] An application could only be made within 2 years after the relationship ended,[3] unless leave to apply out of time was granted.[4]
[2] Under s 205Z(1)(a) of the Act. Although the appellant also advanced a case under s 205Z(1)(c) of the Act, it is difficult to see how that case could be sustained on the evidence. Counsel for the appellant accepted that par (c) was not really engaged in this case: appeal ts 21.
[3] Section 205ZB(1) of the Act.
[4] Under s 205ZB(2) of the Act.
The proceedings have had an unfortunate history:
(1)On 10 September 2010, the appellant first commenced proceedings in the Family Court, contending that the parties' relationship had ended in October 2008.
(2)On 2 August 2011, the first proceedings were dismissed on the basis that the relationship ended on 1 July 2007 and, as a result, the proceedings were brought out of time.
(3)On 17 February 2012, the appellant commenced the primary proceedings, in which she sought leave to proceed out of time.
(4)On 13 December 2012, the Family Court granted the appellant leave to proceed out of time.
(5)On 22 November 2013, this court dismissed the respondent's appeal against the order giving the appellant leave to proceed out of time.[5]
(6)Between 26 November 2014 and 5 December 2014, the proceedings were tried over 8 days before the trial judge.
(7)On 25 May 2017, the trial judge delivered judgment dismissing the appellant's application on the basis that she had not established that a de facto relationship existed between the appellant and respondent.[6]
[5] O v G [No 2] [2013] WASCA 265.
[6] [G v O] [2017] FCWA 65 (Primary Decision). It may be noted that the Family Court has employed pseudonyms for the parties in the publically available version of the Primary Decision.
The appellant appeals against the dismissal of her application to the Family Court on 6 grounds. In essence, grounds 1 - 4 contend that the trial judge's reasons were inadequate and a finding that the appellant knew of the respondent's lack of commitment was not supported by the evidence. Ground 5 in essence contends that the trial judge erred in regarding certain features of the relationship which his Honour found to exist to be equivocal as indicators of a de facto relationship. Ground 6 in essence contends that the trial judge erred in finding that no de facto relationship existed on the facts found by his Honour.
For the following reasons, the trial judge's reasons and findings, as to the critical issue of whether the parties had a mutual commitment to a shared life, were deficient. This gives rise to a miscarriage of justice. The appeal must be allowed, the primary judgment set aside and the matter remitted to the Family Court for a retrial.
The trial judge's approach
Uncontentious facts
The trial judge began his reasons by noting some uncontentious features of the parties' relationship.[7]
[7] Primary Decision [2] - [4].
The appellant and respondent met through a dating agency in February 1999. After some initial socialising over about 6 months, they did not have contact with one another until approximately October 2000.
In October 2000, the appellant was about 43 years of age and the respondent was 48. The appellant had two children from a previous marriage, both under 10 years of age. The respondent had two teenage children from his first marriage.
It was common ground that the parties entered into an intimate relationship. The appellant said that the relationship began in November 2000. The respondent said that it began in early 2001, which was after he separated from his second wife. Nothing appears to turn on this minor difference as to the date on which the parties' relationship started.
There are no children from the respondent's second marriage. There are no children of the relationship between the parties.
During the appellant's relationship with the respondent, her children lived with her. For certain periods of time, one of the respondent's children lived with him.
The trial judge said that it was common ground that regular intimacy continued until the end of the relationship - which had been determined as occurring on 1 July 2007.
When the parties met, the appellant owned and lived in a mortgaged property in Dalkeith. The respondent owned and lived in a mortgaged property in City Beach.[8]
[8] Primary Decision [6].
At the time of the trial, the appellant was employed in the property industry, and also owned a retail business, while the respondent was employed in the medical profession.[9]
Credibility of the parties
[9] Primary Decision [6].
After referring to the relevant statutory provisions and procedural background, the trial judge made the following observations about the parties' credibility:[10]
Given the nature of the specific dispute before the Court, much will depend upon the credibility of each party. The following comments are based upon my observations of the parties in the witness box.
[The appellant] presented as a somewhat theatrical and emotional woman. She was prone to exaggeration and was sometimes disingenuous with her answers. When confronted with this, she was quick to blame other people, including her previous lawyers, her bookkeeper, her accountant and even cross-examining counsel. I have no doubt, however, that - irrespective of my findings as to whether or not a de facto relationship existed - she believed (and continues to believe) that it did.
[The respondent] presented as autocratic and authoritarian. The way he gave his evidence reinforced my view formed from his trial material that he was uncompromising and used to being treated with deference. He too could be disingenuous and, at times, glib.
In short, neither party was an impressive witness. Consequently, I consider that the evidence of each needs to be approached with caution. (emphasis added)
Domestic arrangements
[10] Primary Decision [16] - [19].
The trial judge said that it was common ground that at no stage of their relationship did the parties own (either jointly or otherwise) or occupy a single residence which they shared full-time.[11]
[11] Primary Decision [20].
After referring to the evidence of various witnesses,[12] the trial judge made the following factual findings:
(1)The parties frequently holidayed or had short breaks in Australia or overseas, often with friends and other family. Between 2001 and 2007, the parties went on six overseas trips, taking the appellant's children on three occasions. On one occasion, the appellant paid for the business class air travel for herself and the respondent (using frequent flyer points) and they spent time on a yacht owned by one of her friends. Otherwise, the respondent paid most of the appellant's expenses for the overseas holidays and the appellant paid the expenses of her children.[13]
(2)The respondent was involved in the lives of the appellant's children and was affectionate towards them. They felt close to the respondent and considered him a person of significance in their lives.[14] The trial judge observed:[15]
I accept that [the respondent] may well have made comments to them as to how they should feel about staying at City Beach, and that those comments may well have been in the terms they described - but I do not think welcoming words to young children are of much weight in assessing the nature of a relationship between adults. In relation to the frequency with which they stayed at City Beach, however, I note that neither child knew [the respondent's nephew]. This tends to confirm that their stays at City Beach had decreased greatly, at least by early 2004.
(3)Each party had the ability and authority to access the residence of the other.[16]
(4)The respondent kept clothes and toiletries at the appellant's homes.[17]
(5)Differences in the parties' evidence as to the nights they spent together were likely to be because that time was not consistent from week to week, or over the course of the relationship. His Honour accepted the respondent's evidence that the frequency of contact diminished over time. The trial judge found that, on average, the parties spent about 4 nights per week together over the course of their relationship.[18]
[12] Primary Decision [20] - [47].
[13] Primary Decision [48] - [49].
[14] Primary Decision [50].
[15] Primary Decision [51].
[16] Primary Decision [52].
[17] Primary Decision [53].
[18] Primary Decision [54] - [55].
The trial judge summarised the parties' domestic arrangements in the following terms:[19]
[19] Primary Decision [56].
In summary, I am satisfied that the parties spent a lot of time together, and that they were involved in many aspects of domestic life, such as meals and involvement in children's activities. On the other hand, there was also evidence which contraindicated that cohabitation was occurring - for example:
a) in general, [the respondent] did not perform domestic chores at [the appellant's] houses;
b) for the most part, finances in relation to the parties' respective residential premises and their day-to-day living costs were kept separate;
c) neither party expected to share in the income of the other;
d) [the respondent] never kept his wardrobe at [the appellant's] premises, except for minimal clothing;
e) [the respondent's] wish to maintain City Beach was firm, and was known to [the appellant] (he kept his office there, his personal mail went there and he spent time there almost daily); and
f) the parties had no joint medical insurance and made no testamentary provision for each other (even in the form of a life tenancy in a residential property).
Property investment and financial dealings
The trial judge found that in mid-2001, when the respondent was engaged in family law proceedings in relation to his prior marriage, the appellant provided him with $20,000 to pay tax. The trial judge found that the respondent listed that sum as a liability in the family law proceedings. Contrary to the appellant's evidence, the trial judge found, by reference to a bank statement, that this amount had probably been repaid.[20] The trial judge later observed:[21]
The provision of $20,000 by [the appellant] to [the respondent] early in their relationship is equivocal in its implications. I am not confident in my ability to categorise the parties' relationship at that early stage. Still, and while it is true that a girlfriend might lend money to a boyfriend, I am of the view that this evidence tends to provide greater support for [the appellant's] categorisation of the relationship than it does for [the respondent's] categorisation of the relationship.
[20] Primary Decision [57].
[21] Primary Decision [87].
The trial judge made the following findings as to the property transactions in which the parties engaged during the course of their relationship.
Eagle Bay property
In early 2002, the parties purchased a property at Eagle Bay as tenants in common in equal shares. The property was purchased as an investment ‑ for personal use at times but to be rented out at other times. The respondent agreed to become a half-owner when the appellant, who had contracted to purchase the property, was unable to access superannuation funds prior to settlement. The parties borrowed more than the purchase price from a bank in joint names. Rent was paid into a joint account from which loan repayments were made. The parties paid any balance of repayments due in equal shares. The parties arranged for renovations to the house to be carried out.[22]
[22] Primary Decision [58] - [63].
A formal agreement was prepared in relation to the Eagle Bay purchase, which was expressed to set out the parties' rights 'if at any time the parties' relationship comes to an end'. The Deed identified the object of purchasing the Eagle Bay property as being to maximise rental income.[23]
[23] Primary Decision [60] - [61].
The trial judge found that the purchase of the Eagle Bay property provided only minimal support for the appellant's case. The appellant intended to purchase the property for herself and the respondent only became involved when she was unable to access superannuation for that purpose.[24]
Dunsborough property
[24] Primary Decision [64].
In or around June 2003, the respondent purchased a unit in Dunsborough, which the trial judge appeared to find was set up by the appellant as a holiday rental. The trial judge found that this provided 'some evidence of the closeness and mutual involvement of the parties at that time'.[25]
Peppermint Grove Beach property
[25] Primary Decision [65].
In around February 2004, the appellant purchased a property in Peppermint Grove Beach using her own funds.[26]
Sale of first Dalkeith property and purchase of second Dalkeith property
[26] Primary Decision [66].
In April 2004, the appellant sold her Dalkeith residence. The net proceeds of the sale were placed in a term deposit account.[27]
[27] Primary Decision [67].
In November 2004, the parties contracted to purchase another property in Dalkeith as tenants in common in equal shares. While the appellant initially contracted to purchase the property alone, the parties agreed to each provide half the money on the basis that the appellant would eventually buy the respondent out.[28] The parties entered into an agreement relating to the property which provided for the disposal of the property 'on separation',[29] and which provided:[30]
The object of purchasing the property is to provide a primary residence for [the appellant] and an Investment opportunity for [the respondent]. By mutual agreement [the parties] agree that [the appellant] is to pay a reasonable rent to [the respondent] for her exclusive use of the property.
[28] Primary Decision [68].
[29] Although this was the term of the trial judge's finding, it may be noted that the actual Deed provides for each party to have a right of first refusal to purchase the other's interest in the property, and the reference to disposal of the property on separation appears only in the heading to that clause: see Green AB 286 - 287.
[30] Primary Decision [69] - [70].
The appellant paid rent of $150 per week (being half the appraised market rent for the property) from February 2005 to September 2005. In September 2005, the appellant purchased the respondent's share of the property at its market value using borrowed funds secured by a mortgage over the property. The respondent guaranteed the loan.[31]
[31] Primary Decision [71].
The trial judge observed that the transactions relating to the purchase of the second Dalkeith property did not support the appellant's suggestion that part of the motivation for its purchase was as a home for both parties and her children.[32]
Cowaramup properties
[32] Primary Decision [72].
In about April 2006, the parties contracted to purchase two adjoining parcels of land in Cowaramup using funds borrowed from a bank. These properties were bought as an investment, and were registered in the names of the parties as tenants in common. Loan repayments for these properties were made from the parties' joint account.[33]
Third Dalkeith property
[33] Primary Decision [73].
In May 2006, the appellant purchased a third property in Dalkeith using funds borrowed from a bank, and extensively renovated the property.[34]
Claremont property
[34] Primary Decision [74] - [76].
In April 2007, the parties entered into a contract to purchase a house in Claremont, using jointly borrowed funds. The trial judge accepted the appellant's evidence that the Claremont property was purchased for use as a joint residence after the respondent insisted that they find a house to call their own. The trial judge found that there was some discussion about marriage at this time but not a proposal. Some weeks before settlement of the sale of this property, the parties' relationship ended, although they proceeded with the purchase.[35]
Parties' financial dealings and the nature of their relationship
[35] Primary Decision [77] - [83].
The trial judge observed:[36]
In my opinion, and taking into account the evidence of both parties and their witnesses, each party - as an investor - offered the other party something that he or she lacked. Put another way, [the appellant] contributed her knowledge of real estate and the real estate industry, while [the respondent] contributed his significant income and reliable earning capacity.
[36] Primary Decision [86].
The trial judge said that, in a context where each party had children from previous relationships, he placed little weight on the fact that they purchased the properties as tenants in common rather than as joint tenants.[37]
[37] Primary Decision [88].
The trial judge concluded:[38]
Although I accept that the parties had significant financial dealings with each other, I am not persuaded that the nature of their financial relationship - up to the purchase of [the Claremont property] - serves to support or reinforce [the appellant's] case. On the other hand, and as I have said, I accept that [the Claremont property] was purchased as a joint residence - and that this involved the proposed sale of the then solely‑owned residences of each of the parties, at least within 3 years. Whatever might be said about the nature of the parties' relationship to that time, the purchase [of the Claremont property] and its consequences represented a significant escalation in their commitment to that relationship - particularly on [the respondent's] part. But if the correct categorisation of the parties' relationship before the [Claremont property] purchase is that it was not a de facto relationship, and the correct categorisation following the [Claremont property] purchase is that it was a de facto relationship, [the appellant's] case is not assisted. The fact of the matter is that the parties separated within weeks of settlement. (original emphasis)
Degree of mutual commitment to a shared life
[38] Primary Decision [89].
The trial judge regarded a number of aspects of the parties' conduct as shedding light on the degree of their mutual commitment to a shared life. The trial judge gave weight to the respondent's choice of words in completing a school enrolment form for one of the appellant's children, in which he crossed out '[f]ather's name' and wrote '[m]other's [p]artner/[g]uardian'.[39]
[39] Primary Decision [92].
After referring to the evidence adduced by the parties,[40] the trial judge said that he had 'discomfort with the evidence of both parties in relation to the subject of marriage proposals'.[41]
[40] Primary Decision [90] - [97].
[41] Primary Decision [98].
The trial judge was satisfied that the respondent asked the appellant to marry him on one or more occasions, including during an overseas holiday. His Honour was not satisfied that the appellant was ever minded to accept the proposal. Any marriage proposals made by the respondent were in the context of attempts on his part to placate the appellant at times of stress or comparative stress within their relationship. The appellant did not regard them as serious or genuine marriage proposals, or, if she did, she had reservations about accepting any such proposal (and hence, about marrying the respondent). The trial judge accepted that it was likely that the parties discussed marriage at times, in a variety of contexts. His Honour noted that the fact of the matter was, however, that the parties never married.[42]
[42] Primary Decision [98] - [99].
The trial judge accepted that much of the appellant's evidence regarding the parties' discussions about their commitment to each other was likely to be broadly accurate. His Honour found that there was a significant gap between what the parties may have said to each other and what they did. He found that the appellant did not nominate the respondent as her spouse on her tax returns. The trial judge said:[43]
She said that the returns were prepared by her accountant … and that she simply signed them without checking the content. I reject [the appellant's] evidence in this regard. I find that she well knew that [the respondent] was not nominated as her spouse in her tax returns. I am not prepared to find, however, that she wilfully misled the Australian Taxation Office as to her relationship with [the respondent]. Instead, I find that, in reality, she did not regard [the respondent] as her spouse (de facto or otherwise). (emphasis added)
[43] Primary Decision [100].
The trial judge made the following findings as to the understanding of each party of the degree of commitment of the other to their relationship:[44]
[The respondent] described [the appellant] as someone who 'provided a lot of fun' and 'some intimate moments over weekends ... and relief from the stressful job [he] had', but with whom he had no intention of having a long-term relationship. Not surprisingly, he acknowledged that he never communicated this to her - despite being aware that she considered herself to be in a long-term, committed relationship with him. More surprising is the fact that [the appellant] acknowledged in her evidence that she was aware of [the respondent's] lack of commitment, and that it was an issue in their relationship. (emphasis added)
Reputation and public aspects of the relationship
[44] Primary Decision [104].
The trial judge summarised evidence as to the public aspects of the relationship,[45] later accepting the evidence of witnesses who described them 'as a couple'.[46]
Trial judge's conclusion
[45] Primary Decision [105] - [107].
[46] Primary Decision [117].
After referring to authorities in this area, the trial judge said:[47]
In my view, the findings I have made about the amount of time the parties spent together, their day-to-day living circumstances and the interaction of each party with the children of the other are, overall, equivocal on the point of whether the relationship was 'marriage-like'. I draw much the same conclusion about the parties' financial transactions (other than in relation to [the Claremont property]) - although, if anything, the weight of the evidence supports a conclusion to the effect that the parties elected to keep their financial affairs separate.
[47] Primary Decision [116].
The trial judge said that the most troublesome consideration (from the appellant's point of view) related to each party's degree of mutual commitment to a shared life. While his Honour accepted that the appellant was committed to a shared life with the respondent, he was unable to conclude that the respondent was similarly committed to the appellant. The trial judge accepted that the respondent, from time to time, made statements implying, or to the effect, that he and the appellant were in a de facto relationship, and that he was committed to the relationship in the long term. However, the trial judge found that the respondent frequently, and probably always, lacked commitment to a shared life with the appellant. The trial judge said:[48]
It is difficult to discern whether he -
a) fluctuated between inconsistent but genuinely held views regarding his commitment to a shared life;
b) was content to simply mislead [the appellant] about his intentions; or
c) did nothing to disabuse [the appellant] of her misunderstanding or misapprehension regarding his true feelings,
but I am firmly of the view that the first of these alternatives is far less likely than the others. (emphasis added)
[48] Primary Decision [118].
The trial judge observed that, until the Claremont property purchase, nothing changed in the way the parties conducted their lives. The appellant well knew of the respondent's lack of commitment, and it was an issue between them.[49]
[49] Primary Decision [119].
The trial judge expressed his ultimate conclusion in the following terms:[50]
The bottom line is that the onus is on [the appellant] to persuade the Court of her case. As the Court of Appeal said in H v P at [58]:
Unlike a legal marriage, which is presumed to continue until a party can prove that the marriage has broken down for the purpose of legally dissolving the marriage, in the case of a de facto relationship, it is the party asserting the continuance of the de facto relationship that must positively prove the existence of its defining characteristics, rather than being required to prove the negatives.
I am not satisfied that [the appellant] has discharged that onus. Put another way, I am not satisfied that the evidence presented to the Court, including in relation to the words and actions of [the parties], demonstrates the existence of a de facto or marriage-like relationship between them. Further, I am not satisfied that the evidence demonstrates the existence of the defining characteristics of a de facto or marriage-like relationship between the parties.
No provisional decision as to property alteration
[50] Primary Decision [120] - [121].
The trial judge concluded by observing:[51]
Sometimes, when a judge decides a preliminary point which is dispositive of a matter, that judge will go on to decide the other issues that would fall for consideration if the decision on the preliminary point went the other way. This course is often adopted on the basis that the further issues can be dealt with comparatively briefly. Such a course can be useful to the parties if the decision on the preliminary point is successfully appealed, perhaps saving a further hearing. However, I do not take this course because the further issues cannot be briefly dealt with, and because the passage of time since the trial renders it likely that further evidence relating to the parties' financial positions will be necessary.
[51] Primary Decision [122].
General principles: de facto relationships
The critical issue in this case is whether the parties were in a 'de facto relationship' for the purposes of the Act.
The terms 'de facto relationship' and 'de facto partner' are defined in s 13A of the Interpretation Act 1984 (WA) in the following manner:
(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.
(4)A reference in a written law to a de facto partner shall be construed as a reference to a person who lives, or where the context requires, has lived, in a de facto relationship.
(5)The de facto partner of a person (the first person) is the person who lives, or lived, in the de facto relationship with the first person.
The concept of a 'marriage-like' relationship is not defined in the legislation. In determining whether parties are living in a marriage-like relationship, the court will be required to reflect on the 'nature of marriage generally' and to have regard to the factors identified in s 13A(2) of the Interpretation Act.[52]
[52] H v P [2011] WASCA 78 [53], applying Truman and Clifton [2010] FCWA 91 [347].
It is well recognised that, outside the range of obvious cases, the evaluative judgment required can be difficult and the characterisation of the relationship attended by a degree of uncertainty. In many such cases, it may be that different decision-makers can reasonably arrive at different conclusions on the same set of facts.[53] That, in itself, does not mean that the standard of appellate review involves any deference to the conclusion of the primary decision‑maker.[54] For the purposes of this appeal, it is not necessary to determine the question, left open in H v P,[55] as to the standard of appellate review of a conclusion that parties were in a de facto relationship.
[53] Pelka v Secretary, Department of Family and Community Services [2006] FCA 735; (2006) 151 FCR 546 [47]; H v P [46].
[54] Minister for Immigration v SZVFW [2018] HCA 30; (2018) 92 ALJR 713 [49], [150]; The Queen v Dennis Bauer (a pseudonym) [2018] HCA 40; (2018) 92 ALJR 846 [61].
[55] H v P [48].
The difficulty referred to above arises from the nature of the task which the court has been given by the legislature. Widely varying conceptions of marriage present challenges for the application of the criterion of being 'marriage‑like' in determining whether a relationship falls within the definition of a de facto relationship. In MW v Department of Community Services,[56] Gleeson CJ observed that there 'is a wide range of human behaviour across the spectrum between a sexual encounter and a marriage or civil union'. Common experience also shows that there is a broad range of domestic and financial arrangements common within married relationships.[57] As Gleeson CJ also noted in MW,[58] to describe a relationship as being 'in the nature of marriage' (the statutory language in that case) implies a view about the nature of marriage. The same is true of a description of a relationship as 'marriage‑like'.[59]
[56] MW v Department of Community Services [2008] HCA 12; (2008) 82 ALJR 629 [14], adopted in Truman [342].
[57] See Truman [337] - [338], [345] - [346]; Chan v Mazurkiewicz [2015] WASC 432 [10].
[58] MW [13].
[59] Truman [341].
The difficulty in answering the question posed by s 13A(1) is increased by the fact that s 13A(2) provides that none of the indicators which it lists are essential. Further, s 13A(3)(b) indicates that exclusivity of the relationship between the parties is not essential. While, under Australian law, a party can only be married to one partner, the party can be in a de facto relationship with one person while married to a third person and/or while also being in a de facto relationship with others.
Section 13A(1) refers to the parties 'liv[ing] together'. However, it has been recognised that a common residence is only one of the factors in s 13A(2). Accordingly, it is open to a judge to conclude in appropriate circumstances that, despite physical separation, there are sufficient other factors present to indicate the existence of a de facto relationship. While time spent apart will be a factor to be taken into account, no one factor, such as whether the parties are physically separate at the relevant time, will be determinative. A de facto relationship may exist even though the parties live together only for limited periods.[60]
[60] H v P [73]; Clarence v Crisp [2016] FamCAFC 157; (2016) 311 FLR 433 [42].
The text of s 13A indicates that there is a difference between persons living together and residing together. Section 13A recognises that it is possible for two persons to 'live together' without ever having 'resided together', so that the former concept is broader than the latter. The former concept would appear to encompass two people, who do not necessarily reside together, sharing their lives. That is consistent with the interpretation of s 13A adopted by Martin CJ in GLS v Russell‑Weisz:[61]
The expression 'live together' is to be construed broadly, in the sense of two persons sharing their lives, rather than in the narrower sense of two persons sharing the same physical abode.
[61] GLS v Russell-Weisz [2018] WASC 79; (2018) 52 WAR 413 [101].
In Commonwealth v Australian Capital Territory,[62] the High Court recognised that the concept of marriage in s 51(xxi) of the Constitution is to be understood as referring to:
[A] consensual union formed between natural persons in accordance with legally prescribed requirements which is not only a union the law recognises as intended to endure and be terminable only in accordance with law but also a union to which the law accords a status affecting and defining mutual rights and obligations.
[62] Commonwealth v Australian Capital Territory [2013] HCA 55; (2013) 250 CLR 441 [33].
Of course, what is said in construing 'marriage' in s 51(xxi) of the Commonwealth Constitution is not to be translated into the very different context of construing 'marriage‑like' in s 13A of the Interpretation Act. The latter task focuses on the text, context and, to the extent it can be properly discerned, purpose of the statutory provision. Nevertheless, in our view, the High Court's observations, expressed at the high level of generality apposite to elucidation of the constitutional concept of marriage, are of some assistance in construing the phrase 'marriage‑like' in s 13A.
Obviously, not all of the elements of the constitutional concept of marriage can have any relevance to whether parties are living in a 'marriage-like' relationship. References to 'a union formed between natural persons in accordance with legally prescribed requirements' which is 'terminable only in accordance with law', to which the 'law accords a status affecting and defining mutual rights and obligations', are plainly inapposite to the characterisation of a de facto relationship. But, putting aside the formal legal requirements and incidents, the essence of the constitutional concept of marriage is of a consensual union between natural persons which is intended 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 rather may be otherwise manifested in the words and conduct of the parties to the relationship.
Consistently with the idea that a consensual union which is intended to endure is an important aspect of the legal concept of marriage, it has been recognised that the common intention of the parties may be an important factor that primarily determines whether a relationship is 'marriage-like'. 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.[63] As was noted by O'Loughlin J in a passage cited with approval in Pelka:[64]
it is not sufficient to merely note that a couple are sharing accommodation, nor is it sufficient to note that one is financially dependent on the other; it is necessary to delve deeper to find the reasons for those arrangements. Those reasons will be better indicators in determining the correct nature of their relationship.
[63] MW [13].
[64] Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164, 173, cited in Pelka [39].
What is required by the court is an overall assessment of the facts and the relevant elements of the relationship.[65] The following observations of Fitzgerald J are often referred to in this context:[66]
Each element of a relationship draws its colour and its significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.
Of course, under s 13A(3)(a) of the Interpretation Act, it is not necessary for the persons to be of the opposite sex.
[65] H v P [55].
[66] Lynam v Director General of Social Security (1983) 9 Fam LR 305; (1983) 52 ALR 128, 131, cited (for example) in H v P [55]; Clarence [56]; Pelka [38].
Ultimately, it is necessary to consider all of the evidence as to the nature of the relationship, having regard to the indicia in s 13A(2) of the Interpretation Act, and to decide whether it supports the conclusion that the parties are living together in a marriage-like relationship.
General principles: delay in judgment delivery and adequacy of reasons
The appellant's submissions focus on the delay of 901 days, or nearly 30 months, between the conclusion of the trial on 5 December 2014 and judgment delivery on 24 May 2017. The respondent notes that this calculation fails to take account of a timetable for written submissions to be filed by the parties after trial, the last of which were due on 27 March 2015. However, even taking account of the written submissions, the delay is well in excess of 2 years.
The appellant accepts that excessive delay in judgment delivery after trial is not itself a ground of appeal. It remains necessary to demonstrate error in the Primary Decision or a miscarriage of justice.[67] Inordinate delay (which a period of over 2 years clearly constitutes) is commonly recognised as being relevant for the exercise of appellate jurisdiction in the following ways:
(1)In rare cases where the delay disables a primary court or tribunal from considering a party's case at trial,[68] or possibly if it gives rise to a real and substantial risk that capacity for competent evaluation of the evidence is diminished,[69] there may be a failure to accord procedural fairness or an unfair trial.[70]
(2)There may be a need for greater clarity and specificity in the reasons of the primary court or tribunal.[71] Assertive general statements which would normally be taken to reflect a comprehensive consideration of the evidence are to be treated with reserve.[72]
(3)The appellate court may look at the findings of the primary judge, including credit-based findings, with special care and may more readily infer that the judicial function has miscarried.[73]
In the present case, grounds 1 - 4 focus on the second and third of these considerations.
[67] See Sullivan v Trilogy Funds Management Ltd [2017] FCAFC 153; (2017) 255 FCR 503 [271]; Monie v The Commonwealth [2005] NSWCA 25; (2005) 63 NSWLR 729 [44]; Expectation Pty Ltd v PRD Realty Pty Ltd [2004] FCAFC 189; (2004) 140 FCR 17 [80]; Terry v Leventeris [2011] SASCFC 26; (2011) 109 SASR 358 [15].
[68] NAIS v Minister for Immigration [2005] HCA 77; (2005) 228 CLR 470 [105], [172].
[69] NAIS [10], [106].
[70] See also Expectation [69]; NRM Corporation Pty Ltd v ACCC [2016] FCAFC 98 [134]; Rollings v Rollings [2009] FamCAFC 87; (2009) 230 FLR 396 [162].
[71] Sullivan [273]; Expectation [71] - [73], [81]; Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 [30]; Terry [15].
[72] Mount Lawley [30]; Expectation [71]; Terry [15].
[73] Sullivan [272] - [274]; Expectation [69] - [72]; Monie [2] - [3], [43]; Terry [15].
As was noted in H v P,[74] whether the content of reasons is adequate will depend on the circumstances of the case and the matters that arose for the judge's consideration. The court will look at the reasons as a whole, if necessary in the context of the evidence, to determine if they achieve their required function and purpose. The fundamental elements of a statement of reasons are:
(1)a reference to the relevant evidence (which need not be detailed);
(2)a statement of material findings of fact and any ultimate conclusions;
(3)a statement of the reasons for making those findings and conclusions; and
(4)an explanation of how the law was applied to the facts as found.
In doing these things, the reasons must demonstrate an engagement with the losing party's case.
[74] H v P [50] - [51].
If reasons are found to be inadequate, it does not follow that there is necessarily an appellable error. An appellate court will only interfere when no reasons have been given in circumstances in which they were required, or when the inadequacy of the reasons is such as to give rise to a miscarriage of justice. Further, where an appellable error arises from inadequate reasons, it does not necessarily follow that a new trial is required. An appellate court is entitled to consider the matter and, if it can do so (for example, where only one conclusion is reasonably open on the available evidence), may decide the matter itself.[75]
[75] H v P [52]; Mount Lawley [29].
The fundamental requirement for reasons is to adequately disclose the actual intellectual process which has resulted in a particular determination.[76] Where there is a right of appeal, the reasons must be sufficient to give effect to that right. The basis for the decision must be apparent, as otherwise the losing party cannot know whether there has been a mistake of law or of fact. Just what that will involve depends upon the nature of the case.[77]
[76] Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226 [73].
[77] Mount Lawley [27].
In Mount Lawley, the court recognised that delay may require a more comprehensive statement of the evidence than would ordinarily be required to manifest to the parties and the public that the delay has not affected the decision.[78] In Expectation,[79] it was said to be incumbent on a trial judge after significant delay to inform the parties of the reasons why the evidence of a particular witness has been rejected. In Rollings v Rollings,[80] the Full Court of the Family Court of Australia recognised that inadequacy of reasons could emerge from a failure to recognise the possible effects of delay on the decision-making process, or explain how any possible problem resulting from the delay might have been taken into account or overcome.
[78] Mount Lawley [30], citing R v Maxwell (Unreported, Court of Criminal Appeal, NSW, 23 December 1998).
[79] Expectation [72].
[80] Rollings v Rollings [160] - [161].
The requirement for reasons to be more detailed in cases of inordinate delay is related to the requirement that reasons be sufficient to give effect to the parties' rights of appeal. Inordinate delay in a case where the result turns on credit-based findings has the potential to deprive the trial judge of the capacity to properly assess the evidence given at trial. Procedural fairness requires the court to actually consider the submissions and evidence which a party must be given an opportunity to make and adduce.[81] If, by an inordinate delay in delivering judgment, the court deprives itself of the capacity to properly assess a party's case, then there will be a denial of procedural fairness.
[81] See, by analogy with administrative decisions, Forrest & Forrest Pty Ltd v Minister for Mines and Petroleum [2017] WASCA 153; (2017) 51 WAR 425 [103] and Scaffidi v Chief Executive Officer, Department of Local Government and Communities [2017] WASCA 222; (2017) 52 WAR 368 [202].
In some cases of inordinate delay, it may be incumbent on the judge to explain the steps which have been taken to ensure that delay did not compromise his or her capacity to consider the critical aspects of the parties' cases. In the absence of such an explanation, the parties may have no means of knowing whether the delay has actually given rise to a denial of procedural fairness, and be effectively deprived of the opportunity to appeal on that ground. Where delay is such as to be likely to adversely affect the court's capacity to properly assess evidence relevant to a credit-based factual finding that affects the outcome of the trial, disclosure of the steps taken to preserve that capacity may be necessary to give effect to the parties' rights of appeal.
Failure to give such an explanation may also lead an appellate court to more readily infer that there has been a denial of procedural fairness.
Disposition of grounds 1 - 4: adequacy of reasons
There was no explanation in the reasons for the delay in delivering judgment or of the steps taken to ensure that the delay did not deprive his Honour of the capacity to properly assess the evidence led at trial.
The passages quoted at [15] above appear to indicate that the trial judge's decision was influenced by his view of the credibility of the parties. His Honour observed that 'much will depend upon the credibility of each party'. The comments which his Honour made, adverse to both parties, were said to be 'based upon my observations of the parties in the witness box'. There is no explanation of how his Honour was able to accurately recall his observations 2.5 years after the observations were made. Further, the assessment is based on a number of generalised pejorative statements which are not illustrated by any examples taken from the evidence led before the trial judge. Such illustration would be desirable even in the absence of delay. Nevertheless, in this case a reasonable basis for those observations is apparent from an examination of the trial record, against which the adequacy of the reasons is to be assessed.
In any event, the trial judge did not use his observations of the parties in the witness box as a basis for rejecting their evidence. Rather, his Honour considered that 'the evidence of each [party] needs to be approached with caution'.[82] Despite his general statements, the trial judge accepted much of the appellant's evidence. The basis for the trial judge's findings against the appellant on particular factual issues, which did not turn on his Honour's perception of the appellant's demeanour, can be discerned from the reasons considered in light of the evidence led at trial. It is not apparent that the trial judge's conclusion adverse to the appellant on any critical issue was actually based on the general observations made in the passages quoted at [15] above. In those circumstances, this not is a case, of the kind referred to at [68] above, where a miscarriage of justice arises merely from the failure to set out the steps taken to ensure that the delay in delivering judgment did not deprive the trial judge of the capacity to properly assess the evidence.
[82] Primary Decision [19].
It does, however, remain necessary for this court to scrutinise the findings of the trial judge, including credit-based findings, with special care and to be alert to the prospect that delay has led the judicial function to miscarry. When that is done in this case, it can be seen that the trial judge's reasons and factual findings in relation to the critical issue of the parties' common intention or mutual commitment were deficient in two respects.
Appellant's knowledge of the respondent's lack of commitment
First, there is an inadequate explanation of how the trial judge came to his finding that the appellant 'well knew' of the respondent's lack of commitment to a shared life with the appellant and that it was an issue between them.[83]
[83] Primary Decision [119].
The appellant also complains that there was no evidence to support this finding.
On the face of the trial judge's reasons, this finding is explained as being based on the appellant's own evidence. The trial judge had said:[84]
More surprising is the fact that [the appellant] acknowledged in her evidence that she was aware of [the respondent's] lack of commitment, and that this was an issue in their relationship.
[84] Primary Decision [104].
The trial judge does not identify the paragraphs of the appellant's affidavits or pages of the transcript in which the appellant makes this acknowledgment. Normally, this would not be required, although doing so is often a convenient course. The reasons are to be read in light of the evidence led at trial, so if such an acknowledgement had been made by the appellant in those terms then the trial judge's reasons could readily be taken to refer to that part of her evidence.
However, in the present case, neither party was able to identify any part of the appellant's affidavits or oral evidence in which she expressly makes the acknowledgement which the reasons attribute to her. Counsel for the respondent sought to rely on transcript of the appellant's cross‑examination where she complained of the lack of financial contributions by the respondent.[85] However, those statements relate only to financial matters and are not capable of supporting a finding that the appellant acknowledged or knew of the respondent's lack of commitment to a shared life with her.
[85] Trial ts 27/11/14 pages 15 - 16; 28/11/14 pages 66, 75 - 76.
In these circumstances, if the trial judge drew an inference from some other evidence, it was necessary for his Honour to identify that evidence and how the inference was drawn. As things stand, either:
(1)The trial judge made a finding without any evidentiary foundation; or
(2)If there was some evidentiary basis for the finding based on the manner in which the appellant gave evidence, which is far from obvious, that basis is not explained or reasonably discernible from the reasons considered in light of the transcript.
In either case, appellable error is established.
This was not a finding as to a merely incidental matter.
In obvious cases, such as where two financially interdependent persons, who present publicly as a couple, maintain a long-term stable sexual relationship at a common residence where they share responsibility for raising their children, there may no imperative to separately focus on whether the parties' communications manifest a mutual commitment to a shared life. The parties' conduct in maintaining a relationship with those features may itself be demonstrative of such a commitment and a common intention that their relationship will endure.
Separate consideration of the degree of mutual commitment to a shared life may assume greater importance outside obvious cases. At least in some such cases, whether the words and conduct of the parties manifest a mutual commitment to a shared life will be of central importance to the characterisation of the relationship. In a relationship between two persons, the existence of such a mutual commitment will, at least ordinarily, be discerned from the conduct of the parties towards each other, their communications with each other and the other indicators referred to in s 13A(2) of the Interpretation Act. Where that conduct and those communications clearly manifest a mutual commitment to a shared life, one party's unexpressed, secretly harboured reservations are unlikely to count against the existence of a de facto relationship in any significant manner.
It was common ground between the parties that the present is not a 'black and white' case.[86] The parties had maintained a relationship, which included a sexual relationship, for 6.5 years and publically presented as a couple. On the other hand, they never shared a full-time common residence and largely maintained their financial independence from each other. In our view, in these circumstances, the existence of a manifested mutual commitment to a shared life, and the degree of that commitment, are of critical importance to the characterisation of the relationship.
[86] Appeal ts 24, 33, 50.
Further, the trial judge attributed very significant weight to this factor. His Honour regarded the parties' degree of mutual commitment to a shared life as '[t]he most troublesome consideration (from [the appellant's] point of view)'.[87] The trial judge had referred to Gleeson CJ's observations in MW (referred to at [58] above) as to the importance of the parties' common intention.
[87] Primary Decision [118].
The trial judge found that 'much of [the appellant's] evidence regarding the parties' discussions about their commitment to each other is likely to be broadly accurate.[88] The trial judge found that the appellant was committed to a shared life and the respondent had, from time to time, made statements that he was committed to the relationship in the long term.[89] His Honour's finding that the respondent was not genuinely committed to their shared life together would have been of little moment but for the finding that the appellant knew of the respondent's lack of commitment to a shared life. In this context, the finding of the appellant's knowledge of the respondent's lack of commitment, which was an issue between them, assumed a central importance to the determination of the character of the parties' relationship. For the reasons already explained, that finding is infected by appellable error.
Contradictory findings
[88] Primary Decision [100].
[89] Primary Decision [118].
Secondly, the trial judge made contradictory findings as to the critical issue of the parties' common intention and mutual commitment to a shared life.
The trial judge found that the respondent was 'content to simply mislead [the appellant] about his intentions' or 'did nothing to disabuse [the appellant] of her misunderstanding or misapprehension regarding his true feelings'.[90] That finding was inconsistent with the finding that the appellant 'well knew' of the respondent's lack of commitment to a shared life with her, and it was an issue between them.[91] On the latter finding, the parties discussed, and argued about, the respondent's lack of commitment; on the former, he kept it secret from her. On the latter finding, the appellant was under no misunderstanding or misapprehension, and had not been misled, and the respondent must have been aware of this.
[90] Primary Decision [118].
[91] Primary Decision [119], [104].
Further, the trial judge found that the appellant did not regard the respondent as her spouse (de facto or otherwise).[92] That is inconsistent with the trial judge's finding that he had no doubt that the appellant 'believed (and continues to believe)' that a de facto relationship existed.[93]
[92] Primary Decision [100].
[93] Primary Decision [17].
The trial judge also found that the parties' purchase of the Claremont property was for a joint residence and 'represented a significant escalation in their commitment to that relationship - particularly on [the respondent's] part'.[94] This indicates that the respondent was committed to a shared life with the appellant at the point of purchasing the Claremont property. However, the trial judge later found that the respondent 'probably always' lacked a commitment to a shared life with the appellant.[95] These findings could be reconciled only if the latter finding, at [118] of the Primary Decision, is read as a finding that the respondent 'always' lacked commitment to a shared life with the appellant up to the point of the purchase of the Claremont property. If that were the trial judge's intended meaning, the use of the word 'always' would have been unorthodox and unnecessary. Further, while there is a reference to the Claremont property purchase at [119] of the Primary Decision, the opening words of [119] - 'In any event' - count against what is said in [118] being qualified by what is said at [119]. Also, the reference in [118] is to the respondent's mental state, while the reference at [119] is to the way the parties conducted their lives.
[94] Primary Decision [89].
[95] Primary Decision [118].
In some cases it might be possible to reconcile the findings referred to in [89] above by a generous construction which proceeds from a premise that the trial judge had carefully considered the issue and it is highly improbable that his Honour would make contradictory findings in doing so. However, in the present case, the delay, and other difficulties with the findings as to the parties' mutual commitment which are noted above, count against proceeding from such a premise. We cannot be confident that the apparent contradiction between the findings referred to in the previous paragraph is not another symptom of a miscarriage of the fact-finding process in this case.
It is not clear which of the above contradictory findings were ultimately relied on by the trial judge.
Conclusion as to grounds 1 - 4
Grounds 1 - 4 are established to the extent referred to above.
Disposition of grounds 5 - 6: characterisation of the parties' relationship
There is no merit in ground 5, which contends that the trial judge erred by regarding certain features of the parties' relationship which the trial judge had found to exist to be equivocal as to the existence of a de facto relationship. The features of the parties' relationship to which the trial judge referred did not unequivocally point either to the existence or absence of a de facto relationship. We would read his Honour's reference to evidence being 'equivocal' as not being determinative of the existence or absence of a de facto relationship. The appellant's contention that his Honour meant that the evidence was 'neutral'[96] is less consistent with the ordinary meaning of the term 'equivocal' - which includes something which is ambiguous or of uncertain significance[97] - and the context in which the term was employed by the trial judge.
[96] Appeal ts 24 - 25.
[97] See Macquarie Dictionary (6th edition).
The appellant's submissions in support of ground 6 focus on the finding that the respondent misled the appellant as to his commitment to the relationship over the relevant period. The appellant submits that:[98]
(1)This finding was not open to the trial judge unless evidence as to the nature of the parties' relationship over the relevant period indicated such a relationship between them.
(2)A finding that the respondent was not in fact committed to the relationship does not preclude a finding that the parties were in a de facto relationship if the respondent conducted himself as if he was in such a relationship.
(3)The findings as to the respondent having misled the appellant and the evidence as to the nature of the relationship indicates that he did so conduct himself.
[98] Appellant's Submissions par 96 - 98.
The difficulty with these submissions is that they do not take account of the finding that the appellant knew of the respondent's lack of commitment, and the contradictory findings referred to above. While the issues with these findings establish grounds 1 - 4 in the manner explained above, ground 6 does not establish an independent basis for attacking the Primary Decision. As we have said, it is not clear which of the contradictory findings that the trial judge acted upon. It is not open to this court to adopt one of those findings and discount the other. Further, where, as has been established above, inadequacy of reasoning underpins one of those findings, this court, which has not seen and heard the witnesses, cannot adopt a selection of the other findings in order to determine whether there was a de facto relationship. The deficiencies in the reasons and fact-finding process on the important issue of the parties' common intention or mutual commitment mean that this court is not in a position to determine whether a de facto relationship existed on the basis of the factual findings made by the trial judge.
Outcome of appeal
For the above reasons, a miscarriage of justice arises from the inadequacy of the trial judge's reasons and the factual findings made in relation to the parties' mutual commitment to a shared life.
This court is not in a position to itself make findings as to all the circumstances of the parties' relationship, so as to itself form a view as to whether the parties were in a de facto relationship. Such an exercise would necessarily involve an assessment of all of the evidence led at trial, much of which is contested on credibility grounds. The deficiencies noted above mean that the court cannot rely on the findings of primary fact made by the trial judge in relation to the critical issue of whether the parties' words and conduct manifested a consensual union intended to endure, or a mutual commitment to a shared life.
Ordering a new trial is '[i]n all cases … a most deplorable result'.[99] That is all the more so in this case, given its long and unfortunate history. It is deeply regrettable that, more than 11 years after the end of the parties' relationship and almost 7 years after the commencement of the primary proceedings, the parties are to be required to retry the matter. However, for the reasons explained above, the only option for this court is to set aside the trial judge's orders and remit the matter to the Family Court for a retrial. As the trial judge has retired, it will be necessary for the trial to be before a different judge (which, in the circumstances, would have been appropriate in any event).
[99] Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 [36], quoting Dakhyl v Labouchere [1908] 2 KB 325, 327; Brown v Churchill [2006] WASCA 17; (2006) 31 WAR 246 [39].
Orders
For the above reasons, the following orders should be made in the appeal:
(1)The appeal is allowed.
(2)The judgment of the Family Court of Western Australia given in PTW 5149 of 2010 on 24 May 2017 is set aside.
(3)The matter is remitted to the Family Court of Western Australia for retrial before a different judge.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ET
RESEARCH ASSOCIATE/ORDERLY TO THE HONOURABLE JUSTICE MITCHELL
28 NOVEMBER 2018
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