Herford & Berke (No 2)

[2019] FamCAFC 182

FAMILY COURT OF AUSTRALIA

HERFORD & BERKE (NO. 2) [2019] FamCAFC 182

FAMILY LAW – APPEAL – DE FACTO RELATONSHIP – Declaration that the de facto relationship finally broke down before 1 March 2009 – Application for property settlement orders dismissed – Where the parties lived under the same roof until November 2008 – Where the parties agreed that up until this point they were living in a de facto relationship –Where there is contention as to whether the parties’ de facto relationship continued after this point up until the cessation of the relationship in 2015 – Where his Honour considered the nature and character of the relationship and came to the conclusion that the relationship had changed after November 2008 and a de facto relationship no longer existed – Where the challenge as to weight is not made out – Where the conclusion was open to his Honour – Appeal dismissed – No order as to costs made.

Family Law Act 1975 (Cth) ss 4AA, 90SM(1), (3) and (4)
Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) ss 2, 86 and 86A

Cadman & Hallett (2014) FLC 93-603; [2014] FamCAFC 142
Crick & Bennett (2018) FLC 93-832; [2018] FamCAFC 68
Cuan & Kostelac (2017) FLC 93-801; [2017] FamCAFC 188
Fleming & Schmidt [2017] FamCAFC 12
Jonah & White (2012) FLC 93-522; [2012] FamCAFC 200
Jonah v White (2011) 45 Fam LR 460; [2011] FamCA 221
Lynam v Director-General of Social Security (1983) 52 ALR 128
Onslow & Onslow [2016] FamCAFC 7
Sha & Cham [2017] FamCAFC 161
Sinclair & Whittaker (2013) FLC 93-551; [2013] FamCAFC 129

APPELLANT: Ms Herford

RESPONDENT: Mr Berke

FILE NUMBER: BRC 3295 of 2017

APPEAL NUMBER: NOA 3 of 2019

DATE DELIVERED: 24 October 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ainslie-Wallace, Ryan & Aldridge JJ

HEARING DATE: 18 September 2019

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 5 December 2018

LOWER COURT MNC: [2018] FCCA 3593

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Coleman SC with
Mr Flaherty

SOLICITOR FOR THE APPELLANT: Mullick & Associates

COUNSEL FOR THE RESPONDENT: Mr Williams QC

SOLICITOR FOR THE RESPONDENT: Hopgood Ganim Lawyers

Orders

1. The appeal against the orders of Judge Jarrett made on 5 December 2018 is dismissed.

2. There be no order as to costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Herford & Berke has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: NOA 3 of 2019
File Number: BRC 3295 of 2017

Ms Herford

Appellant

and

Mr Berke

Respondent

REASONS FOR JUDGMENT

1. On 5 December 2018 a judge of the Federal Circuit Court of Australia made a declaration that the de facto relationship that subsisted between Ms Herford (“the appellant”) and Mr Berke (“the respondent”) from 2002 or 2003, finally broke down before 1 March 2009. Consequentially his Honour made orders, inter alia, dismissing the appellant’s application for property settlement orders.  The appellant appeals both the declaration and the orders made by the primary judge on 5 December 2018.

2. The Family Court of Australia has jurisdiction under the Family Law Act 1975 (Cth) (“the Act”) to determine matters relating to property as between parties who have not been married, where the parties have lived in a de facto relationship for a period of no less than two years and the relationship finally ended after 1 March 2009,[1] the date on which the particular provisions of the Act commenced.[2]

   [1] See ss 90SM(1), (3) and (4) of the Act.

   [2] See s 4AA of the Act; ss 2, 86 and 86A of the Family Law Amendment (De Facto Financial Matters and Other

   Measures) Act 2008 (Cth).

3. The parties met in 2002 while the appellant was living in Sydney and in 2003 the appellant and her son, who was then aged five, moved to live in the respondent’s house on Region B.  The appellant contended that their de facto relationship commenced in 2002. The respondent at first denied that they had ever lived in a de facto relationship, later however he agreed that they had and said that it commenced in 2003. As the primary judge correctly observed, little turns on the date on which the relationship commenced (at [14]).

4. The parties lived under the same roof until November 2008 when the appellant moved out to live a very short distance away in a unit owned by the respondent.

5. Whether up to this time their relationship could be properly regarded as them living in a de facto relationship was one to be decided by the primary judge, albeit each party agreed that up until the time the appellant moved away from the same residence as the respondent, their relationship could properly be so described.

6. There was no contention that the parties’ relationship, whatever it was, finally ceased in 2015.

7. In any event, the primary judge set out the facts and circumstances of the parties’ lives and cohabitation during this first period, that is from 2002 until November 2008, in order to compare it with the second period, from November 2008 until 2015, about which there was contention.  The respondent argued that after the appellant moved out, their relationship was one of “boyfriend and girlfriend”[3] whereas the appellant asserted that the same relationship as existed before continued, arguing that nothing changed in their relationship.

   [3] Transcript 18 August 2017, p.161 lines 10-11.

8. The question thus to be determined was whether the de facto relationship continued after November 2008.  If it did not, it follows that the de facto relationship finally broke down before 1 March 2009.

9. Having examined the parties’ lives both before and after the appellant moved out of the respondent’s house, the primary judge concluded that the de facto relationship between the parties had finally broken down before 1 March 2009.  His Honour, after setting out the objective characteristics of the relationship during the period between 2002 and 2008 at [93] and comparing them with the characteristics of the relationship after that time at [94], matters of fact which were not the subject of challenge, said:

   95. It will be appreciated that many of the matters that were present when the parties were in a de facto relationship, continued to be present after [Ms Herford] moved from their shared accommodation in late 2008.  But three matters, in my view, are of considerable significance. The first is the cessation of the parties’ cohabitation. Whilst it is not necessary for the parties to occupy the same accommodation for them to continue to be in a de facto relationship it is a matter, in my view in this case, of significance because the decision to cease co-habitation seems to have been a joint decision of the parties.  It was not a decision forced on them because one of them fell ill for example or was prevented for one reason or another from occupying the same premises as the other.  They did not attend upon each other unannounced.  Their visits to each other’s accommodation was by prearrangement.  Neither had a key to the other’s home.

   96. The second matter is that the accommodation was not provided rent‑free.  I have found that there was an agreement between the parties for [Ms Herford] to pay [Mr Berke] rent.  She paid some rent although none since 2010.  Given the nature of the parties’ relationship it is conceivable that [Mr Berke] did not press [Ms Herford] for the payment of rent.  It is something, however, that he raised with her from time to time – there are text messages to that effect.  It seems to have been raised by him, however, when the parties’ relationship was not doing so well.  An agreement about the payment of rent, and the payment of rent, in respect of [Ms Herford’s] accommodation is, in my view, inconsistent with a manifestation of “coupledom” which involves the merger of two lives: cf Jonah v White (2011) 45 Fam LR 460.

   97. The third matter of significance is the coming to an end of the provision of daily assistance and the completion of day-to-day tasks normally associated with parties living in the same household.  I accept [Mr Berke’s] evidence that after the parties ceased cohabitation, they largely provided for their own day-to-day needs…

   98. The fourth matter is the fact that [Mr Berke] thought that the parties’ relationship was nonexclusive such that he saw himself able to engage in a relationship with another woman in 2012…

   99. The fourth (sic) is the refusal of [Mr Berke] to commit to a long-term exclusive relationship with [Ms Herford] by agreeing to get married.  Whilst it is of significance that [Mr Berke] purchased and gave to [Ms Herford] a ring traditionally associated with an engagement, I accept his evidence that it was not his intention to signify to her that they were engaged…

   …

   101. Finally, that they considered that they should report to Centrelink that they were not in a de facto relationship and that [Ms Herford] was paying rent to [Mr Berke], is a good indication that the parties did not consider that the relationship was not a de facto relationship…

   102. [Ms Herford] made the same report to the taxation authorities although some years later in her income tax return for the financial year ended 30 June, 2016.

   103. In addition to those matters, apart from the provision of the accommodation, a motor vehicle and the telephone to which I have already referred, there was no financial interdependence between these parties at all…

10. The touchstone or foundational fact establishing jurisdiction is whether the parties were “a couple living together on a genuine domestic basis” at the relevant time.[4] That question can be decided by reference to the matters to which s 4AA(2) of the Act refers, none of which are determinative of the question. As was said in Sinclair & Whittaker (2013) FLC 93-551(“Sinclair”):

    [4] See s 4AA(1)(c) of the Act, “De facto relationship”.

    51.In coming to the view that a couple had a relationship as a couple living together on a genuine domestic basis the court is to have regard to all of the circumstances of their relationship. Those circumstances may include those specified in ss 4AA(2).

    52.Sub-section 4AA(3) highlights that no particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the subject persons have a de facto relationship.

    53.Sub-section 4AA(4) provides:

    A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.

    54.Thus, whether or not a de facto relationship, as defined, exists will depend upon an assessment of all of the circumstances of the relationship, each to be given the weight the court thinks appropriate.

11. In Lynam v Director-General of Social Security (1983) 52 ALR 128 (“Lynam”) at 131 Fitzgerald J said apropos the presence or otherwise of financial support in considering the nature of a relationship between an unmarried couple:

    Financial arrangements cannot be taken in isolation and considered of particular importance in determining the nature of relationship.  Their materiality, like each of the other elements of the relationship, stems from the impact which they have as part of an overall situation.  Each element of a relationship draws its colour and its significance from the other elements, some of which may point at one direction and some in the other.  What must be looked at is the composite picture.  Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error.  The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.

12. While Lynam clearly predates the amendments to the Act with which this case is concerned, it stands for the importance of considering all of the relevant facts and circumstances as a whole in determining the nature and characteristics of the relationship being examined.

13. It is against this legal construct that we turn to consider the appeal.

14. However, before considering the challenges to his Honour’s orders, we must observe that his Honour’s reference at [96] to Murphy J’s concept of “‘coupledom’ which involves the merger of two lives”[5] cannot pass uncorrected.

    [5]Jonah & White (2011) 45 Fam LR 460 at [60].

15. As was said by the Full Court in Sinclair, the Full Court in Jonah & White (2012) FLC 93-522 (“Jonah & White”) did not adopt Murphy J’s characterisation of the necessary relationship as “coupledom”. The Full Court in Crick & Bennett (2018) FLC 93-832 at [13], somewhat regrettably had to reiterate what had been said in Sinclair. The Full Court in Sinclair said:

    92.In both written and oral submissions the appellant submitted that the facts did not demonstrate “the manifestation of coupledom” or that there had been “the merger of two lives”.  These phrases emerge from the decision of Murphy J in Jonah v White [2011] Fam LR 460 at 471 where his Honour said: …

    …

    93. It is important to note that his Honour’s comments were made in the context of the facts of the matter that was before him.  It is clear from reading the judgment as a whole that his Honour had the statutory definition firmly in mind at all times.  When dismissing the appeal from his Honour’s decision the Full Court did not disagree with his Honour’s statements of principle but did not apply anything other than the statutory test (Jonah & White (2012) FLC 93 – 522)…

16. It bears repeating too that in dismissing the appeal from Murphy J’s decision, the Full Court in Jonah & White said at 86,682 that “[i]t is immediately apparent that the touchstone for the determination of whether a de facto relationship exists is the finding that the parties to it are a “couple living together on a genuine domestic basis”.

17. Indeed, as the Full Court said in Sinclair:

    94. Comments made in the course of discussing facts are not to be elevated to the status of the provisions of the statute or substituted for the statutory test.  This is because, taken on their own, they either add nothing to the statutory test or, if they do, they are adding an impermissible gloss.  Thus it is not appropriate to consider the facts other than in the light of the statutory test.

18. Sinclair itself has been followed by subsequent Full Courts (Cadman & Hallett (2014) FLC 93-603; Onslow & Onslow [2016] FamCAFC 7; Fleming & Schmidt [2017] FamCAFC 12; Sha & Cham [2017] FamCAFC 161; Cuan & Kostelac (2017) FLC 93-801). To repeat and rely on statements made at first instance which have been overtaken and corrected by several Full Courts, as the primary judge did here, is to invite error.

19. Turning then to the thrust of the appeal.

20. As we have said, the respondent denied the existence of a de facto relationship at all.  He maintained until well into the hearing that his relationship with the appellant was one of “boyfriend and girlfriend” and his evidence and indeed the appellant’s evidence, he said demonstrated that relationship.  During the hearing before the primary judge, the respondent conceded that, indeed, he and the appellant had been living together as a couple on a genuine domestic basis, in short, as a de facto couple.  His Honour having considered the evidence given by the parties about the nature and quality of their relationship accepted that from 2002 or 2003 until November 2008, the parties had been living together in a de facto relationship.

21. Despite the appellant moving out of the respondent’s house, there was no dispute that their relationship continued.  The respondent said that the essential nature of their relationship changed albeit they were “boyfriend and girlfriend”.  The appellant maintained that the de facto relationship continued as before.

22. The appellant argued that the primary judge uncritically accepted the respondent’s characterisation of the relationship after November 2008 and did not for himself consider the nature and quality of the relationship from that point on.  It was said that this was particularly necessary in the understanding that at least for a period during the hearing, the respondent continued to deny there ever existed a de facto relationship, describing the relationship as being one of “boyfriend and girlfriend”.  The argument continued that given what the respondent was describing in the period from 2003 until 2008 turned out in fact to be a de facto relationship, his Honour was obliged to treat the respondent’s description of the relationship with some circumspection.  The error, it was contended was that his Honour did not examine the nature and quality of the relationship because had he, he would have come to the view that the de facto relationship between the parties continued after November 2008 and did not finally breakdown before 1 March 2009. It was said that this was particularly so when, as here there was no evidence of the parties’ intentions about their relationship when the appellant moved out in November 2008.

23. The point being that the primary judge was obliged to look at the relationship both before and after November 2008 and ask whether having regard to the objective manifestations of the relationship, it bore a character other than as a de facto relationship.

24. Had his Honour done as contended that is accept without question the respondent’s characterisation of the relationship without more, we agree, he would have fallen into error.

25. While his Honour did indeed accept and use the expression “boyfriend and girlfriend” to describe the parties’ relationship after November 2008, a consideration of his analysis of the parties’ relationship before that time at [93] and after at [94] demonstrates that he did analyse the nature and character of their relationship and came to the conclusion that the matters to which he referred at [95] persuaded him that the relationship had changed to the extent that the de facto relationship of pre-November 2008 no longer existed.

26. The appellant also submitted that the primary judge needed to engage more fully with the evidence and that he failed to apprehend the importance of particular aspects of it. These submissions focussed on the content of some cards sent by the respondent to the appellant, activities they had shared and events that they had attended.  Ultimately the respondent said: “[w]e were living our life as we had always lived it. We were happy to be getting on very well at that time” (Transcript 18 August 2017, p.161 lines 7–8).

27. However, the respondent’s evidence continued and in answer to further questions in cross examination said that they were living as “boyfriend and girlfriend” adding that he would not describe their relationship as “a couple” (Transcript 18 August 2017, p.161 lines 10–13).

28. The primary judge referred to the cards, activities and events at [69]-[71] including the appellant’s evidence in cross examination to which we have referred.  Thus it is clear that his Honour had those matters firmly in mind.  His Honour discussed the cards and their contents at [100] dismissing them as having little weight.

1. We therefore do not agree that the primary judge failed to engage with these aspects of the respondent’s case and thus, the challenge devolves to the weight or importance ascribed to that evidence by the primary judge.  As is well understood, appellate challenge to the weight given to evidence faces a very high bar which is not cleared in this aspect of the appeal.

2. That conclusion was open on his Honour’s unchallenged findings of fact and thus the challenge is not made out.  The appeal will be dismissed.

Costs

1. It was conceded by the respondent that in the event that the appeal failed, no order for costs would be sought against the appellant and we will thus make no order for costs.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Ryan & Aldridge JJ) delivered on 24 October 2019.

Associate:

Date: 24 October 2019