Jonah & White
[2012] FamCAFC 200
•30 October 2012
FAMILY COURT OF AUSTRALIA
| JONAH & WHITE | [2012] FamCAFC 200 |
| FAMILY LAW - APPEAL - declaration that the parties lived in a de facto relationship |
| Family Law Act 1975 (Cth) |
| Australian Coal & Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 Green v Green (1989) 17 NSWLR 343 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 |
| APPELLANT: | Ms Jonah |
| RESPONDENT: | Mr White |
| FILE NUMBER: | BRC | 10055 | of | 2010 |
| APPEAL NUMBER: | NA | 33 | of | 2011 |
| DATE DELIVERED: | 30 October 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May, Strickland & Ainslie-Wallace JJ |
| HEARING DATE: | 28 May 2012 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 4 April 2011 |
| LOWER COURT MNC: | [2011] FamCA 221 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Galloway |
| SOLICITOR FOR THE APPELLANT: | MBT Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Mater |
| SOLICITOR FOR THE RESPONDENT: | MH Peoples & Co |
Orders
The appeal be dismissed.
There be no order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Jonah & White has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 33 of 2011
File Number: BRC 10055 of 2010
| Ms Jonah |
Appellant
And
| Mr White |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms Jonah (“the appellant”) appeals from a decision of Murphy J of 4 April 2011 in which his Honour declined to declare that the appellant had been in a de facto relationship with Mr White (“the respondent”) pursuant to s 90RD of the Family Law Act 1975 (Cth) (“the Act”). The sole issue for his Honour’s determination was whether the parties had been in a de facto relationship for the purposes of the Act.
Upon appeal the appellant seeks a declaration that the parties lived in a de facto relationship between August 1996 and 17 June 2009, and that her amended initiating application of 14 February 2011 be reinstated and remitted to the Family Court for further determination.
Save for one matter, there was no challenge to any of his Honour’s findings of fact. The challenge on appeal was to the correctness of his Honour’s finding that the parties had not lived in a de facto relationship.
The definition of “de facto relationship” is found in s 4AA of the Act which provides as follows:
4AA De facto relationships
Meaning of de facto relationship
(1) A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b) the persons are not related by family (see subsection (6)); and
(c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has effect subject to subsection (5).
Working out if persons have a relationship as a couple
(2) Those circumstances may include any or all of the following:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h) the care and support of children;
(i) the reputation and public aspects of the relationship.
(3) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4) 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.
(5) For the purposes of this Act:
(a) a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and
(b) a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.
…
Background
In 1992 the appellant began working in a business run by the respondent. Shortly afterwards they entered into an intimate relationship that continued until early 2009.
Throughout the period of that relationship the respondent was married. He and his wife have children. It is undisputed that his wife was unaware of his relationship with the appellant. The respondent and appellant kept their relationship a secret.
The parties maintained separate homes and households. For a time at the start of the relationship the appellant lived in Brisbane while the respondent was living in Sydney.
In about 1997 the appellant purchased a home in Brisbane and the respondent gave her $24,000 to assist with the purchase. The respondent purchased a farm near Sydney and the appellant visited him there. Although, as his Honour noted, there was some dispute about how often the appellant visited the respondent at his farm, he accepted that the appellant spent two to three days at a time there every second or third week (at [15]). The respondent booked and paid for the appellant’s travel from Brisbane to the farm.
The parties travelled overseas together on one occasion for approximately two and a half weeks while the respondent conducted business. There were other occasions when they spent about two weeks together, although his Honour accepted that the respondent returned to his home in Sydney on the weekends to attend to his children’s weekend commitments.
In December 2006 the appellant sold the Brisbane property and acquired a property in her own name in S, New South Wales.
The parties never held joint funds, bank accounts or investments. They kept their financial affairs separate. From 1999 until early 2010 the respondent paid a monthly sum to the appellant. The appellant ceased remunerative work from about the time the payments commenced and she applied some of those funds to the mortgage on the Brisbane property.
The evidence established that the respondent infrequently visited the appellant at her house in Brisbane or, later, at her property in NSW.
His Honour found that the parties had a “…significant degree of mutual commitment to the other expressed overtly…”, and found that the appellant loved the respondent, that she was devoted to him and that he provided her with significant care and support (at [27] and [28]).
The appellant regarded her relationship with the respondent as exclusive and his Honour observed:
28. …The respondent, too, conceded that his relationship with the applicant was exclusive (save for “a few one night stands”) and, of course, the not insignificant matter of the relationship with his wife.
Summary of the reasons for judgment of the trial judge
The trial Judge identified the contentions of the parties. To repeat, the appellant’s case was that the parties had a “de facto relationship” within the meaning of s 4AA of the Act, but according to the respondent the relationship was nothing more than “an affair”.
As to the issue of credit his Honour concluded that neither party was seeking to deliberately mislead the Court but that the evidence of each was “affected significantly by the fact that their recollections… was [sic] refracted through the prism of their own perceptions of the relationship”. As such, the trial Judge found the appellant’s evidence to be generally “less reliable”, but his Honour was of the opinion that very few matters about which the parties’ evidence varied counted “dramatically in the ultimate result”.
Turning to the relevant law, the trial Judge first considered counsel for the respondent’s argument that the question of whether a de facto relationship exists involves the exercise of judicial discretion. It was his Honour’s view that such a question was a determination of fact which in turn enlivened the power of the Court to exercise the discretion to grant certain remedies under the Act.
Secondly, the trial Judge referred to legislation in both Queensland and New South Wales dealing with de facto relationships where “De facto partner” is defined by s 32DA of the Acts Interpretation Act1954 (Qld) (as amended) and where the expression “de facto relationship” is defined by s 4 in the Property (Relationships) Act 1984 (NSW). In so doing he acknowledged that the terms of the State legislation were not entirely the same as s 4AA of the Act, but said that he considered:
42.…the provisions of [the] Queensland legislation to be, in material particular, sufficiently similar such that decisions in this State in respect of that legislative definition to be instructive. Similar considerations apply to the relevant legislation in New South Wales.
In referring to cases decided under the Queensland and New South Wales legislation, his Honour said:
55.…Underlying those authorities is a necessity to establish the existence of “a relationship as a couple living together on a genuine domestic basis” informed by, but not necessarily determined solely by, the individual findings with respect to the list of circumstances.
His Honour then said:
58. It is in my opinion instructive that the Commonwealth legislature did not provide for relief of the type contemplated by Part VIIIAB of the Act in circumstances where one party has, by their words or actions, provided care, love or support to another or, indeed, in circumstances where one party has induced in the other an expectation of a relationship of greater commitment than that which transpired. Rather, the legislature has made provision for that relief upon satisfaction of the jurisdictional fact that a relationship of a particular, statutorily-defined, type exists.
59. In that respect it seems to me also instructive that the Commonwealth legislature did not provide for relief of that type in circumstances where two people were parties to, for example, a “domestic relationship”, or, as in New South Wales, a “close personal relationship” but, rather, only where parties were in a “de facto relationship” as defined.
His Honour continued:
60. In my opinion, the key to that definition [de facto relationship] is the manifestation of a relationship where “the parties have so merged their lives that they were, for all practical purposes, ‘living together’ as a couple on a genuine domestic basis”. It is the manifestation of “coupledom”, which involves the merger of two lives as just described, that is the core of a de facto relationship as defined and to which each of the statutory factors (and others that might apply to a particular relationship) are directed.
His Honour turned to the issue of “exclusivity” and said:
62. It is submitted by the respondent that “exclusivity is reinforced by s 4AA(1)(c)” and it is submitted further that, “without doubt this sub-section described an exclusive relationship between two people”. The argument refers to marriage analogously. I reject that submission. Marriage has exclusivity as an element because the Marriage Act 1961 (Cth) definition demands it. It is, however, in my view in any event clear, by reference to the terms of s 4AA(5)(b) that exclusivity is not a necessary element of a de facto relationship.
As to whether a common residence is required, his Honour said:
65. It seems to me to be clearly established by authority that the fact that, for example, the parties live in the same residence, for only a small part of each week does not exclude the possibility that they are “living together as a couple on a genuine domestic basis” or that the maintenance of separate residences is necessarily inconsistent with parties having a de facto relationship. So much is, in my view, clear from the statutory recognition that parties to a relationship can be married but also be in a de facto relationship.
66. The issue, as it seems to me, is the nature of the union rather than how it manifests itself in quantities of joint time. It is the nature of the union – the merger of two individual lives into life as a couple – that lies at the heart of the statutory considerations and the non-exhaustive nature of them and, in turn, a finding that there is a “de facto relationship”.
His Honour accepted that the parties had a long standing relationship in which they had a consistent sexual relationship which was (with the exception of the respondent’s casual associations and his marriage) exclusive and that such circumstances, taken with the respondent’s financial support of the appellant, “pointed to the conclusion” that the relationship was a de facto one. However, after considering the whole of the circumstances of the matter, his Honour was not persuaded that the relationship could be so characterised.
His Honour set out the matters which he found to point “to the opposite conclusion”. Some considerable emphasis was placed on these matters by the appellant. We will set out his Honour’s findings:
69. But, a number of other indicia point, in my view, to the opposite conclusion:
·Each of the parties kept and maintained a household distinct from the other;
·In the respondent’s case, that household involved the maintenance of family relationships, including the support of children;
·The evidence does not reveal any relationship, or any intended relationship, between the applicant and the respondent’s children who, it ought be observed, were relatively young when the relationship commenced;
·The relationship between the applicant and the respondent was clandestine and the time spent between the parties was spent (on either party’s case) very much together, as distinct from time spent socialising as a couple;
·I accept the respondent’s evidence that he continued to emphasise the limits of the relationship with the applicant and, in particular, I accept his evidence to the effect that, he told the applicant that, if circumstances ever required him to “make a choice”, he would “choose” his wife and family over the applicant;
·Despite the regular monthly payments and the payment of $24,000 earlier referred to, the parties maintained no joint bank account; engaged in no joint investments together; and acquired, or maintained, property in their own individual names;
·The parties rarely mixed with each other’s friends. In that respect the evidence of the applicant’s witnesses – Ms [R], Ms [H] and Ms [W] – is indicative of very little contact between the respondent and each of them. Ms [R] said she had never met the respondent, but had spoken to him on the phone. Ms [H] said her dealings with the respondent were “very limited”. Ms [W] said she met the respondent “only once”;
·The respondent ran what seems to have been a successful business, in which for some (early) years, the applicant was employed, but the parties did not mix with the respondent’s business associates. After the applicant’s employment with that business had ceased she had no involvement with it at all;
·There was virtually no involvement by the respondent in the applicant’s life in Brisbane (where she lived between about 1996 and 2006), and virtually no involvement by the respondent in the applicant’s life in [S] where she has resided since 2006. (I accept the respondent’s evidence that he has visited [S] on only three occasions);
·The respondent accepted that he hoped that the relationship with the applicant was permanent, but, I accept, he made plain its nature as he perceived it. It was put by Mr Galloway to the respondent that the parties were in a long-term relationship to which the respondent replied “we were in a relationship; we were having an affair”;
·There was very little time spent by the applicant and the respondent with the applicant’s family. I regard the evidence of the respondent, when he said to the applicant’s mother that their relationship “was not an adventure” as being more reliable than the evidence contained at paragraphs 36 and 37 of the applicant’s affidavit. But, in any event, I do not consider that the evidence contained in those paragraphs is indicative of the “coupledom” or “merger” to which I have earlier referred;
·Despite (or, perhaps, because of) the evidence filed by friends of the applicant in support of her case, I do not accept that the applicant and respondent had a “reputation” as a couple; indeed, there was, on the evidence before me, very few public aspects to their relationship.
The Appeal
Seven grounds of appeal were asserted. The grounds raise connected arguments and it is convenient to consider them together. The appeal challenges his Honour’s application of s 4AA of the Act and, in particular, sub-s (5)(b).
The crux of the argument or, as counsel for the appellant indicated in his written submissions, “the essence of this appeal” is that, although his Honour set out the provisions of s 4AA at the beginning of his reasons, he did not sufficiently bear in mind that, unlike the State legislation to which he referred, the Act admits of the existence of a de facto relationship where one of the parties to that relationship may be married to another person or in another de facto relationship.
The appellant argued that his Honour’s reference to the State legislation and authorities was inapt and in error and in so doing his Honour misled himself.
It was argued [appellant’s written submissions page 5] that the matters listed by his Honour at [69], being those he found “pointing away from” the parties having been in a de facto relationship, were erroneous and irrelevant to his determination because he failed to take into account the necessarily clandestine nature of the respondent’s relationship with the appellant. Thus it was said that his Honour took into account irrelevant matters. It was also asserted that his Honour failed to accord sufficient weight to matters which should have led him to the conclusion that a de facto relationship existed.
Section 4AA(1)(c) and its relationship to subsection (5)(b)
The appellant’s argument is that the determination of the nature of the parties’ relationship must be viewed through the prism of s 4AA(5)(b) and “…that as a matter of law s.4AA(1)(c)… must be read subject to s.4AA(5)”.
Section 4AA(1) defines “de facto relationship” for the purposes of the Act. Subsection (c) provides that a person is in a de facto relationship with another person if, “…having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis”.
It 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”.
The Court may consider the matters to which the following subsections refer in determining that seminal question posed by s 4AA(1)(c). We accept the submission that none of the matters referred to in the section has precedence over any other, nor must all necessarily be found before a finding of a de facto relationship is made.
Although s 4AA(1)(c) is expressed to be “subject to subsection (5)”, in our view, that does not mean that it is subordinate to or dominated by it. To accord sub-s (5) such a meaning would give a prominence unwarranted by the context of the section and the subsections. We reject the appellant’s argument if it is intended to mean that the whole of s 4AA is subjugated to sub-s (5).
It is also unnecessary for the disposition of this appeal, other than to refer to sub-ss (3) and (4), to decide whether, as asserted by the appellant, a finding of a de facto relationship could be made absent any of the indicia to which the section refers. Of course to be a “couple” it is necessary for there to be a mutual intention to have such a relationship.
The effect of sub-s (5) on the determination of whether parties have a relationship as a couple living together on a genuine domestic basis is to import into it the understanding that a person can (as the authority of Green v Green (1989) 17 NSWLR 343 demonstrates) maintain two simultaneous relationships. That one of the parties asserted to have been in a de facto relationship was, at the same time, in another relationship, whether de facto or married, is a matter to be taken into account when considering the circumstances of the relationship and the indicia in s 4AA(2). However, the fundamental question remains to be determined and now we turn to that.
Were the parties living together on a genuine domestic basis?
It was argued that where, in [66], his Honour found the issue for determination to be the nature of the relationship and whether the relationship between the parties was a “…merger of two individual lives into life as a couple…”, he had not sufficiently borne in mind sub-s 5(b) and, further, he did not properly take into account that, in the circumstances of this matter, “living together on a genuine domestic basis” is a relative concept [appellant’s written submissions page 9]. As we understand the argument it is that the amount of time in which the parties could “live together” was dictated by the other relationship and that was not taken into account.
It was said that the practical constraints imposed by the respondent’s desire to maintain his marriage and thus keep his relationship with the appellant a secret led to limitations on “…the degree to which the parties could otherwise live together”. The appellant argued that the parties “…lived together when they were together at the farm; they lived together when they were at the appellant’s house; they lived together when they travelled overseas and they lived together when they were in each other’s company” [appellant’s written submissions page 10].
In this regard, we note that his Honour was alive to the issue that the term “living together” can encompass circumstances where parties live together “…for only a small part of each week…” (at [65]).
We agree that the definition may be fulfilled where parties have lived together for limited periods provided that other indicia or the circumstances of the matter enable a finding that they were “living together on a genuine domestic basis”.
It was further argued that the parties “…also lived together through their emotional communion which occurred not only in each other’s physical presence, but by telephone and otherwise” [appellant’s written submissions page 10].
We are not persuaded that “emotional communion” is sufficient to fall within the definition of “living together” and note that no authority was cited for this proposition.
We must observe, however, that the appellant’s emphasis on the words “living together” imports a somewhat artificial focus. The matter for determination was not solely whether the parties were “living together” at the relevant time. The Court must find that they were “as a couple living together on a genuine domestic basis”. Even if his Honour had made a positive finding that the time that the parties spent together in various places amounted to "living together", it would not have concluded his consideration of this issue.
We are not persuaded that his Honour’s analysis of the law, including consideration of the State legislation and cases, was either inapt or erroneous. His reasons demonstrate that he was well aware that s 4AA contemplates the coexistence of more than one relationship. His Honour’s conclusion that the proper focus of his determination was the nature and quality of the asserted relationship rather than a quantification of time spent together was, in our view, entirely correct.
Ground 5
As we have noted, but for one matter (to which we shall shortly refer), the appeal grounds challenge, in different ways, not his Honour’s findings of fact, but the conclusion he drew from them.
It is in relation to one of the matters to which his Honour referred in [69] that the sole challenge to his finding is made.
Ground 5 asserts that his Honour’s conclusion that the evidence did not support a finding that the parties had a reputation as a couple was in error.
At [69] his Honour said on this point:
·The parties rarely mixed with each other’s friends. In that respect the evidence of the applicant’s witnesses – Ms [R], Ms [H] and Ms [W] – is indicative of very little contact between the respondent and each of them. Ms [R] said she had never met the respondent, but had spoken to him on the phone. Ms [H] said her dealings with the respondent were “very limited”. Ms [W] said she met the respondent “only once”.
In the same paragraph at point 4 his Honour noted that the relationship between the parties was one in which their time together was spent “…very much together, as distinct from time spent socialising as a couple”.
After setting out his findings of fact that both supported and excluded a de facto relationship, his Honour found at [69] at point 12:
·Despite (or, perhaps, because of) the evidence filed by friends of the applicant in support of her case, I do not accept that the applicant and respondent had a “reputation” as a couple; indeed, there was, on the evidence before me, very few public aspects to their relationship.
Three close friends of the appellant swore affidavits and gave evidence in the hearing before his Honour. Ms W first met the appellant in 1987. Although she had heard about the appellant’s relationship with the respondent from conversations with the appellant, she spoke to him only once by telephone when she called him to urge him to return to his wife. According to Ms W she said:
“Ms [Jonah] told me that you promised to buy her a house. Mr [White], look, give her a deposit on a house. It will get back to your wife. Go back to your family and let her get on with her life. You’ve got a beautiful family, wake up to yourself”. [original emphasis]
The respondent said to her:
“You don’t understand the type of relationship my wife and I have.” [original emphasis]
Ms W met the respondent “two or three” times when the respondent collected the appellant when she was staying with Ms W. According to Ms W, the meeting consisted of the respondent knocking on her door and saying “hello”.
Ms H first met the appellant in 1985. Although the appellant had told her about her relationship with the respondent, Ms H had spoken to the respondent only once when she answered the appellant’s telephone. She had met him once when he attended the funeral of the appellant’s father.
Ms F first met the appellant in 1979. In the early 1990’s the appellant told her that she was “going out” with the respondent and that he was married. Ms F went to dinner with the appellant and respondent once in mid 1990. Although she visited the appellant two to three times each year, spending three or four days each time with her, she did not see the respondent. Ms F thought that she had visited the appellant about five times from 2006 when the appellant moved to S in NSW.
It is clear that what these friends knew of the appellant’s relationship with the respondent came almost entirely from her.
It was argued for the appellant [appellant’s written submissions page 6]:
The law specifically does not require that the parties exist in an exclusive emotional or sexual relationship and if exclusivity might be expected to be known widely, a non-exclusive relationship would not. In any event that there was some knowledge of the relationship by others indicates its existence, not otherwise.
Further, counsel argued [appellant’s written submissions page 11]:
…As the de facto relationship was one where the Respondent also continued in a state of lawful marriage to another person, there were practical constraints on the degree to which their relationship could be public and acknowledged by him.
The evidence of the appellant’s friends established that, at least so far as the appellant was concerned, there was nothing clandestine about her relationship with the respondent. Her friends comment that she frequently spoke about him and their relationship. Yet the respondent and appellant did not socialise together with these friends. This in our view strongly supports his Honour’s finding about this particular matter.
It was not submitted that there was other evidence that, if accepted, would have persuaded his Honour to the view that the parties enjoyed a “reputation as a couple”, nor was it submitted that the evidence to which his Honour referred was not capable of supporting the finding he made.
We do not accept the challenge to his Honour’s finding of fact. The principles concerning challenges to a trial Judge’s fact finding are well known. The evidence entitled his Honour to make the finding he did.
The reasons make clear that his Honour was well aware of the constraints on the relationship imposed by the husband’s marriage and his Honour’s references to those circumstances provided the background and texture to his findings of individual facts and his conclusions as a whole.
Equally, the matters which it is submitted would, had they been accorded proper weight, have persuaded his Honour to come to the view that the parties had been in a de facto relationship were all matters to which his Honour referred in his reasons and gave proper weight.
As we have said, the challenge is to the conclusion his Honour reached based on those findings.
The matters to which his Honour referred in [69] must be seen against the evidence as a whole. Further, the complexion or weight to be accorded to the facts as found and the conclusion to be drawn is quintessentially a matter for the trial Judge. However that does not mean that the trial Judge cannot err.
He said:
30. Counsel for the applicant submitted that, when one looks at the circumstances prescribed in the Act which may be taken into account by a court when deciding whether two persons are living together as a couple on a genuine domestic basis, “so many are answered in the affirmative”. So much is true. But, as will be clear from the overview just undertaken, those affirmative answers are not, for the most part, given without qualification and, in some cases, significant qualification.
In Australian Coal & Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 at 627, Kitto J said:
…I shall not repeat the references I made in Lovell v. Lovell to cases of the highest authority which appear to me to establish that the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgment is that there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong. A degree of satisfaction sufficient to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts. Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. [footnotes omitted]
It is not sufficient for the appellant to argue, as here, that different weight could have been attributed to the factors to which the submissions refer. In order to demonstrate appealable error, it is necessary to establish that his Honour’s findings are “clearly wrong”. The appellant has not done so.
We find no substance in the challenge to his Honour’s findings of fact, nor the conclusions based on them.
It follows that the appeal must fail.
Costs
As is customary we sought submissions from the parties on the issue of costs to save the time and expense of further submissions being made after delivery of judgment.
Counsel for the appellant argued that in the event that the appeal failed he would resist a costs order on the basis that the appellant was impecunious. He submitted that her income was social security and her house had been repossessed by the bank. In the result it was unnecessary to determine the issue because the respondent submitted that, in the event that the appeal failed, he would not seek an order for costs against the appellant. We will thus make no order for costs on the appeal.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Strickland & Ainslie-Wallace JJ) delivered on 30 October 2012.
Associate:
Date: 30 October 2012
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