JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: H -v- P [2011] WASCA 78
CORAM: PULLIN JA
BUSS JA
MURPHY JA
HEARD: 16 FEBRUARY 2011
DELIVERED : 4 APRIL 2011
FILE NO/S: CACV 11 of 2010
BETWEEN: H
Appellant
AND
P
Respondent
ON APPEAL FROM:
Jurisdiction : FAMILY COURT OF WESTERN AUSTRALIA
Coram :MARTIN J
Citation :H and P [2010] FCWA 12
File No :PTW 4043 of 2008
Catchwords:
Family law - Application for de facto property settlement - Whether parties living in a 'marriagelike' relationship - Whether relationship ended prior to the commencement of pt 5A Family Court Act 1997 (WA) - Relevant principles
Legislation:
Family Court Act 1997 (WA), s 205U(2), s 205Z, s 205ZG
Interpretation Act 1984 (WA), s 13A(2)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr M F Rynne
Respondent: Ms G M Anderson
Solicitors:
Appellant: Leach Legal
Respondent: Robert Parkinson & Associates
Case(s) referred to in judgment(s):
Adler v Australian Securities and Investments Commission [2003] NSWCA 131; (2003) 179 FLR 1
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
B and H [2007] FCWA 45
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424
Burns v Grigg [1967] VR 871
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Corich v The Public Trustee [2006] WASC 16
Dolber v Halverson [2007] NSWCA 335; (2007) 70 NSWLR 151
Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; (2008) 234 CLR 124
Fleming v Hutchinson (1991) 66 ALJR 211
He v Aloe & Co Pty Ltd [2006] VSCA 150
Hibberson v George (1989) 12 Fam LR 725
Hinch v Attorney‑General (Vic) [1987] HCA 56; (1987) 164 CLR 15
House v The King (1936) 55 CLR 499
Leeder v The State of Western Australia [2008] WASCA 192
Lynam v The Director‑General of Social Security (1983) 9 Fam LR 305; (1983) 52 ALR 128
M and G [2006] FCWA 1
Marshall v Lockyer [2006] WASCA 58
Mobilio v Balliotis (1998) 3 VR 833
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
MW v The Department of Community Services [2008] HCA 12; (2008) 244 ALR 205
New Zealand v Johnston [2011] FCAFC 2; (2011) 274 ALR 509
Pelka v Secretary, Department of Family and Community Services [2006] FCA 735; (2006) 151 FCR 546
S v B [2004] QCA 449; [2005] 1 Qd R 537
Sharman v Evans [1977] HCA 8; (1977) 138 CLR 563
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
SNF (Australia) Pty Ltd v Jones [2008] WASCA 121
T and C [2010] FCWA 91
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- Case
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CaseChat Overview and Summary
The central legal issue before the court was whether the primary judge erred in determining that the relationship between the appellant and the respondent was not 'marriage-like'. This involved assessing the inferences drawn from the evidence and the characterization of the relationship based on the relevant statutory criteria. The court had to consider whether the primary judge had correctly applied the principles established in previous case law and whether the decision was supported by the evidence.
The court examined the primary judge's reasoning and the evidence presented, concluding that the primary judge had not erred in finding that the relationship was not 'marriage-like'. The court held that the primary judge was in the best position to assess the evidence and make findings about the nature of the relationship. The court found that the primary judge's determination was not based on an error of law or fact and that the appeal should be dismissed.
The court dismissed the appeal and affirmed the decision of the primary judge.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
An appeal lies to this court pursuant to s 211(3), read with s 36(4a) of the Act. There has been no debate about whether, by virtue of s 211(3), the appeal is in the nature of an appeal in the strict sense, or by way of rehearing: see Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 [12] ‑ [13], and cf s 211(2)(a) of the Act. In either case, the appellant must ordinarily demonstrate error on the part of the primary decision‑maker: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [12] ‑ [14]; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 [20] ‑ [22], [25]; New Zealand v Johnston [2011] FCAFC 2; (2011) 274 ALR 509 [26]. The appellant must demonstrate that the order below is the result of some legal, factual or discretionary error: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23]. In this appeal, most of the challenges made by the appellant are to the inferences drawn, or characterisations made, by the trial judge. In Williams v Minister Aboriginal Land Rights Act 1983 and The State of New South Wales [2000] NSWCA 255 [60] Heydon JA (Spigelman CJ & Sheller JA agreeing) said, in relation to challenges of that kind, that an appeal court:... is in the same position as that ascribed to the Full Federal Court in Minister for Immigration, Local Government and Ethnic Affairs v Hamsher (1992) 35 FCR 359 at 369 per Beaumont and Lee JJ:'... the court is not obliged to proceed to make new findings of fact on all relevant issues and discharge the judgment appealed from if those findings differ from those of the trial judge and do not support the judgment. The court must be satisfied that the judgment of the trial judge is erroneous and it may be so satisfied if it reaches the conclusion that the trial judge failed to draw inferences that should have been drawn from the facts established by the evidence. The court is unlikely to be satisfied if all that is shown is that the trial judge made a choice between competing inferences, being a choice the court may not have been inclined to make but not a choice the trial judge should not have made. Where the majority judgment in Warren v Coombes [(1979) 142 CLR 531] (at 552‑553) states that an appellate court must not shrink from giving effect to its own conclusion, it is speaking of a conclusion that the decision of the trial judge is wrong and that it should be corrected. (See also Edwards v Noble (1971) 125 CLR 296, per Barwick CJ (at 304), per Menzies J (at 308‑309) and per Walsh J (at 318‑319).)' Heydon JA's observations have been cited with approval in Adler v Australian Securities and Investments Commission [2003] NSWCA 131; (2003) 179 FLR 1 [17]; Dolber v Halverson [2007] NSWCA 335; (2007) 70 NSWLR 151, 164 ‑ 165; and Leeder v The State of Western Australia [2008] WASCA 192 [85]. Those principles are to be applied in this case in the context of the primary judge's determination that the appellant and the respondent were not in a 'marriage‑like' relationship at the relevant time for the purposes of the Act. A decision of that kind, having regard to the factors in s 13A of the Interpretation Act 1984 (WA), may be said to involve 'elements of fact, degree and value judgment', and draws upon the judge's experience and familiarity with the nature of the subject matter: see (albeit in the context of other legislation involving an evaluative determination) Fleming v Hutchinson (1991) 66 ALJR 211.