Lennon & Sanil
[2020] FamCAFC 109
•7 May 2020
FAMILY COURT OF AUSTRALIA
| LENNON & SANIL | [2020] FamCAFC 109 |
| FAMILY LAW – APPEAL – DE FACTO RELATIONSHIP – Appeal from a declaration made by the primary judge pursuant to s 90RD of the Family Law Act 1975 (Cth) – Where the appellant alleges bias and procedural unfairness – Where the appellant also alleges errors of fact and law – Where the appellant fails to distinguish between actual and apprehended bias – Where the tests for actual and apprehended bias are not satisfied – Where various complaints of procedural fairness are rejected – Where there is no material factual or legal error demonstrated – Where the primary judge did not take into account irrelevant matters – Where adequate reasons were given by the primary judge about witness credibility – Where the appeal lacks merit – Appeal dismissed. FAMILY LAW – APPEAL – COSTS – Where the appeal is wholly unsuccessful – Where the respondent sought an order for costs against the appellant – Where the appellant submitted for each party to bear their own costs – Where relevant factors prescribed by s 117(2A) of the Family Law Act 1975 (Cth) are considered – Departure from the ordinary rule under s 117(1) of the Family Law Act 1975 (Cth) – Appellant ordered to pay the respondent’s cost of the appeal in a fixed sum within three months. |
| Family Law Act 1975 (Cth) Pt VIIIAB, ss 4AA, 90RD, 117 |
| Abalos v Australian Postal Commission (1990) 171 CLR 167; [1990] HCA 47 R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100; [1953] HCA 22 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59; [2003] HCA 30 |
| APPELLANT: | Ms Lennon |
| RESPONDENT: | Mr Sanil |
| FILE NUMBER: | DNC | 378 | of | 2014 |
| APPEAL NUMBER: | EAA | 87 | of | 2019 |
| DATE DELIVERED: | 7 May 2020 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Sydney (via video link) |
| JUDGMENT OF: | Ainslie-Wallace, Watts & Austin JJ |
| HEARING DATE: | 21 April 2020 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 16 August 2019 |
| LOWER COURT MNC: | [2019] FamCA 556 |
REPRESENTATION
| THE APPELLANT: | In person (via telephone) |
| COUNSEL FOR THE RESPONDENT: | Mr Tockar |
| SOLICITOR FOR THE RESPONDENT: | Pigdon Norgate Family Lawyers |
Orders
The appeal is dismissed.
The appellant shall pay the respondent’s costs of and incidental to the appeal, fixed in the sum of $15,000, within three (3) months of the date of these orders.
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 Lennon & Sanil 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: EAA 87 of 2019
File Number: DNC 378 of 2014
| Ms Lennon |
Appellant
And
| Mr Sanil |
Respondent
REASONS FOR JUDGMENT
Introduction
Once the parties’ romantic relationship ended, the appellant commenced proceedings against the respondent seeking property settlement relief as a former de facto partner under Part VIIIAB of the Family Law Act 1975 (Cth) (“the Act”).
The appellant contended the parties were in a de facto relationship from about January 2006 until April 2013, whereas the respondent alleged they had never been in a de facto relationship at all and, consequently, the Court had no jurisdiction to entertain the appellant’s application.
In September 2017, the respondent filed an Application in a Case seeking that the jurisdictional basis for the proceedings be determined as a preliminary issue rather than as part of the broader determination of the dispute under Part VIIIAB of the Act. The respondent sought from the Court a declaration that no de facto relationship ever existed between the parties or, alternatively, a declaration of the period/s during which their de facto relationship was found to exist.
The hearing proceeded over four days between October 2018 and March 2019. Judgment was reserved until 16 August 2019, when the primary judge declared under s 90RD of the Act:
(1)It is declared that the parties were in a de facto relationship in the period from 13 October 2010 until 15 August 2012.
The appellant’s appeal from that declaration was resisted by the respondent. For the reasons which follow, the appeal should be dismissed with costs.
The Appeal
The seven grounds of appeal were unadorned by any particulars and so it was necessary to refer to the appellant’s Summary of Argument for the details of the alleged errors.
As the law requires (Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577 at [117]), we will first deal with the appellant’s complaints of bias and procedural unfairness (Grounds 6 and 7).
We will then move on to consider the other grounds (Grounds 1 to 5) which allege errors of fact and law, though it is worthwhile emphasising at this point that a decision about the existence of a de facto relationship entails an evaluative judgment by reference to the inclusive criteria set out in s 4AA of the Act. The decision is factual rather than discretionary, but it is still one of degree, and an appellate court will exercise considerable restraint when reviewing the correctness of declarations made at first instance about the existence and duration of de facto relationships (Clarence & Crisp (2016) FLC 93-728 at [55]-[61]; Sinclair & Whittaker (2013) FLC 93-551 (“Sinclair & Whittaker”) at [54], [55], [65], [95]).
Ground 6
Ground 6 baldly asserts:
The learned trial judge was biased.
Plainly, the ground does not distinguish between actual and apprehended bias and, regrettably, the distinction was not elucidated in the appellant’s Summary of Argument. When asked about it in the appeal hearing, the appellant said it was “possibly a mixture of both”. Although she seemed not to appreciate it, the distinction is important because the legal test applied to each is quite different.
Advertence to the appellant’s Summary of Argument reveals the allegation of bias relates to judicial conduct and arises from statements made by the primary judge, both during the hearing and in the reasons for judgment, which the appellant identified to be comments about the prospect of her suffering from “psychological issues”, the way she played with her hair, and her “physical demeanour”.
In order to make sense of the appellant’s complaints it is necessary to extract the comments upon which she relied from both the transcript and the reasons for judgment. They were as follows.
As to the manner in which the appellant played with her hair, the primary judge interjected in her cross-examination as follows:
…
HIS HONOUR: Is your hair disconcerting you? Did – do you want to put it in a ribbon or – you keep on touching – touching - - - ?
[THE APPELLANT]:---I’ve just got a bad habit of playing with it, sorry. It’s – you know how people have just bad habits. It’s – worst things you could do, right.
…
(Transcript 7 March 2019, p.104 lines 23–26)
As to the prospect of the appellant suffering from some psychological condition, the following discourse occurred during her final submissions:
…
HIS HONOUR: … [The respondent] foresaw the possibility of a relationship being established, but when he got to know you and perceived what he regarded as personality issues decided that was not going to happen and hence the relationship didn’t progress to the level that you contend it did. That is, a de facto relationship.
[THE APPELLANT]: That’s not supported in the evidence, at all…
…
HIS HONOUR: - - - but I think legitimately [the respondent] will contend that he had some empathy for you suffering some psychological issues.
[THE APPELLANT]: But I don’t have any psychological issues. There’s nothing to support that in evidence or – I mean, it’s a miracle probably I don’t after being – [with the respondent]…
(Transcript 12 March 2019, p.102 line 30 to p.103 line 12)
Aside from the interjection about the appellant playing with her hair during cross-examination, no other comment was made by the primary judge about her demeanour during the trial, but in the reasons for judgment his Honour said:
65.As a result, for the most part, [the appellant] was not an impressive witness. At certain times she appeared evasive and unable or unwilling to give direct answers to questions in clear or comprehensible terms. On several occasions, I found it necessary to intervene to ensure that [the appellant’s] answers were responsive and were focused on the question asked, rather than venturing into material that had no bearing on the question asked but which she nonetheless insisted on placing on the record.
66.Counsel for [the respondent] accurately described [the appellant’s] demeanour during the course of the hearing, Transcript 12 March 2019, page.105 line 35 and page 106 line 10, as follows;
[The appellant] has been … unable to refrain from arguing her case through the affidavit and in her oral evidence, expressing many conclusions without facts to support them. She was, in answering questions from me, particularly argumentative, gave frequently non-responsive answers to questions or gave an answer where some of it was responsive then followed by a lengthy speech which was not responsive, but was arguing and arguing her case. She did this repeatedly and quite defiantly despite directions from the court to do otherwise and despite me telegraphing that a submission of this kind would be made at the end of the case. None of that seemed to dissuade her from the course that she decided to take.
…
In my submission, she completely failed to discharge her obligations as a witness despite the court giving her the directions that it did. ...
67.I agree with counsel for [the respondent’s] characterisation of [the appellant’s] demeanour as a witness. In addition, [the appellant] frequently appeared ill at ease in the witness box. While I make allowance for the fact that the giving of evidence in any court proceeding can be stressful, [the appellant’s] presentation varied between attempting to be quite conversational including laughing at inappropriate times to appearing to be quite tense and ill at ease. In that respect, when [the appellant] appeared ill at ease, she frequently stroked a ponytail that she wore over one shoulder. When asked about my observation of her tendency to engage in that conduct, [the appellant] stated that it was simply “a bad habit”. My observation, however, was that a tendency to so stroke her ponytail occurred at times when she had difficulty in responding to a question asked of her by counsel for [the respondent]. That aspect of [the appellant]’s presentation is, of course, only a minor aspect of my consideration of her credibility. However, I place it on the record as, in the event that one of the parties may wish to seek a review of my decision, it is an observation that the Full Court will not be in a position to perceive.
(As per the original)
To evaluate the appellant’s shapeless claim of bias, it is necessary to apply the established legal tests to the examples of judicial conduct which she contended, either individually or in aggregation, amount to such proof.
Actual bias can only be established by proof of high probability that the judge’s conduct was inconsistent with any fair performance of judicial duty (R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 116). Inferentially, the judge’s mind must have been committed to a conclusion already formed and incapable of alteration (Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [101]). Patently, on any objective perusal of the extracted oral comments and the written reasons, none could reasonably be said to satisfy the requisite high standard of proof of inviolable prejudgment by the primary judge. No submission was made by the appellant as to how it could.
For the appellant to instead sustain her complaint about the primary judge’s apprehended bias, she had to demonstrate that a fair-minded lay observer might reasonably apprehend from the identified conduct that his Honour might not bring an impartial mind to the resolution of the dispute (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344-345; Johnson v Johnson (2000) 201 CLR 488 (“Johnson”) at 492).
The primary judge’s comments about the appellant touching her hair during cross-examination were arguably unnecessary, but no more. It placed on the record what the primary judge could observe, which would not otherwise have been recorded, and gave the appellant a chance to compose herself when attention was drawn to her demeanour. The appellant was both a party and a witness under cross-examination whose behaviour was obvious to all. She was not an interested third party in the gallery, unseen by the parties or their lawyers, so the primary judge was not obliged to record observations of the appellant’s demeanour during the trial as a matter of procedural fairness (Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304), but there was no reason why his Honour ought not have done so.
The significance of the primary judge’s interjection about the appellant playing with her hair became evident from the subsequent reference to it in the reasons for judgment, where his Honour explained it was an aspect – though only a “minor aspect” – of her general demeanour which influenced the finding about her lack of credibility as a witness. As his Honour explained, in reliance upon both binding and persuasive authority, the demeanour of a witness is an accepted forensic tool to which judges may resort to help resolve uncorroborated conflicts in the evidence.
Historically, factual findings based on witness credibility were treated as being almost impregnable (Abalos v Australian Postal Commission (1990) 171 CLR 167) but, in more recent times, the frailties of the use of demeanour in the formation of impressions about the credibility of witnesses have been clearly exposed (Fox v Percy (2003) 214 CLR 118 at 128-129, 163, 165; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588 at 617-619). Nevertheless, in-court demeanour together with a host of other considerations form the basis upon which a primary judge may assess witness credibility and appellate courts will only intervene to correct factual findings based substantially on impressions formed about credibility through observations of the evidence unfolding in the trial if the finding is glaringly improbable in the face of other incontrovertible evidence (Lee v Lee (2019) 372 ALR 383 at [55]; Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550 at [43]; Fox v Percy at 127-129, 138-147).
The appellant’s written submission on this point was:
…what [the primary judge] saw when I was “playing with my hair” in Court was a manifestation of my suppressed shock, anger and disappointment at these lies [of the respondent]. It was not a ribbon I needed but truthfulness from [the respondent] and a fair hearing from the Court.
The appellant clearly feels strongly about the primary judge’s comments, but we do not accept they carry with them the implication of apprehended bias for which the appellant contends. It bears emphasis that, in this instance, the adverse credit finding made in respect of the appellant was but one of numerous evidentiary considerations which led his Honour to the declaration from which the appellant appeals. As the primary judge understood, findings of fact are generally safer if made on more solid foundations than merely impressions of credit.
The primary judge’s comment to the appellant in final submissions about how it was expected the respondent might pitch his case about her “psychological issues”, even if perceived by her as insensitive, was not probative of his Honour’s apprehended bias against her in favour of the respondent. The flavour of the case, at least as portrayed by the respondent, was the appellant’s exaggeration of the quality of their relationship and, if not deliberately so, then as a product of her romanticising it for more than it actually was. The respondent made numerous references to the appellant’s state of mind in his affidavit and the appellant was certainly aware of it as a live issue because, at the commencement of the hearing when dealing with evidentiary objections, she said to the primary judge:
…they’re trying to imply as if I’ve got a mental illness…
The appellant was self-represented and so, to ensure she was given the chance to address every issue and put her case at its highest during final submissions, his Honour fairly pointed out submissions which would or could foreseeably be made against her.
The primary judge did say that any subsequent submission of the respondent about the appellant’s “psychological issues” could be “legitimately” made, which implied his Honour might accept any such submission as being correct, but his Honour was giving the appellant the chance to respond and rebut the proposition, so his Honour’s view could only have then been provisional. The expression of tentative views by a judge in discourse with the parties during the hearing should not be understood by independent and fair-minded observers as prejudgment (Johnson at 493, 504-505). The appellant submitted in response that there was no evidence to prove she suffered from any “psychological issues”, as indeed there was not. His Honour accepted her submission in rebuttal because, in the reasons for judgment, his Honour expressly noted the appellant denied she had “any mental health issues” (at [39]) and said (at [145]):
“…no expert evidence has been presented regarding the state of [the appellant’s] mental health.”
As for the commentary about the appellant’s demeanour in the published reasons for judgment, it cannot be used to retrospectively construct a viable complaint of bias. It is sometimes necessary for a judge to make findings about the reliability of litigants’ evidence, and hence the weight attributed to it, in order to determine the legal issues in dispute, in which event it is then obligatory to explain the findings in the reasons for judgment. The formation by a judge of an adverse view about a party’s credibility during a trial by the proper application of legal principle, resulting in less weight being reposed in the uncorroborated evidence of that party, does not necessarily foreclose the judge’s proper and open-minded consideration of the merits of that party’s case. Here, nothing in the reasons for judgment permits an inference that the primary judge either did decide, or might have decided, to find against the appellant before his Honour heard the evidence and the submissions.
We reject any suggestion of the primary judge’s actual or apprehended bias.
Ground 7
Ground 7 merely asserts:
The learned trial judge failed to afford the appellant procedural fairness.
As developed in the Summary of Argument, the appellant’s complaint appears to be that the respondent was permitted to rely upon an affidavit of a witness whose “damaging [a]ffidavit” was filed “only days before the hearing”.
The witness was Ms FF and her affidavit was filed on 26 October 2018. The respondent’s reliance upon it was recorded by the primary judge (at [55(f)]). Ms FF described herself as a friend of both parties, whom the appellant had asked to give evidence corroborating her version of the parties’ de facto relationship during 2005 and 2007. Once appraised of the appellant’s factual assertions, far from corroborating them, Ms FF contradicted them and gave evidence-in-chief to that effect.
At the commencement of the hearing, the appellant foreshadowed her objection to the respondent’s late service of Ms FF’s affidavit, which she had received about five days before. His Honour’s attention was then diverted to some documents produced in answer to subpoenas which were tendered in evidence by the respondent and to evidentiary objections taken by the respondent. That process was interrupted when the primary judge suggested the appellant be given the luncheon adjournment to consider what objections she might take to the evidence relied upon by the respondent. After lunch, the appellant objected to certain parts of the respondent’s affidavit evidence. Some of her objections were sustained and some were overruled. As each of the respondent’s witnesses, including Ms FF, were then called, the appellant was given the opportunity to object to any aspect of their evidence before starting their cross-examination.
Ms FF was not reached as a witness until the afternoon of the second day of trial, at which point the appellant raised no objection to Ms FF’s evidence – either to the content of her affidavit or to its late service upon her. Nor did she seek any adjournment to give her more time to consider it. By then, the affidavit had been in the appellant’s hands for nearly a week, so she had ample time to absorb its contents and implications. The appellant must be taken to have abandoned the objection she foreshadowed the day before, as she proceeded to cross-examine Ms FF at length.
Not only did the appellant not ultimately contend to the primary judge how or why she might be prejudiced by having to cross-examine Ms FF, nor did she make any submission to that effect in the appeal. It was no more than a bare complaint about the lateness of service of the affidavit. We are unable to see how that aspect of the hearing was procedurally unfair to the appellant.
Even if it had been procedurally unfair to the appellant for the primary judge to press ahead and receive Ms FF’s evidence, it made no difference to the result because his Honour ultimately disregarded her evidence as being “unhelpful” (at [224]-[228]). It was not “damaging” evidence, as the appellant feared. Any departure from the rules of natural justice at a trial will not entitle the aggrieved party to a new trial if the departure was immaterial to the result (see Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145), as it was here.
Albeit a submission made under Ground 1, which pertains to alleged mistakes of fact, the appellant alleged in her Summary of Argument that she was denied procedural fairness because she was not asked about some documents which were tendered in evidence. They were records produced on subpoena by the Department of Immigration (Exhibit 2H), which included an admission made by the appellant about her intended residential address upon her return from an overseas trip in May 2006. It only need be observed that the documents spoke for themselves and it was not obligatory for the respondent to ask the appellant to explain the contents. The appellant had no objection to the tender of the exhibit and said nothing about it in final submissions, though the respondent certainly did because it was helpful to his case.
The appellant also submitted in her Summary of Argument under Ground 1 that she was denied procedural fairness because she was not asked in the hearing whether or not she lived at Town E in 2006. The submission is misconceived. Both parties alleged in their affidavits where the appellant lived at various times. Their respective evidence about the times and places of the appellant’s residences was irreconcilable, including as to where the appellant lived during 2006. Each party had the chance to cross-examine the other about the conflicts in the evidence and the primary judge’s findings were made on the available evidence.
The appellant also submitted in her Summary of Argument under Ground 1 that the primary judge wrongly ruled some of her evidence to be inadmissible. She did not expressly say the ruling was procedurally unfair, but that is the only conceivable reason the complaint would appear in the Summary of Argument, since it is not germane to any other ground of appeal. The relevant portion of the evidence was the appellant’s commentary upon what her friend in the United Kingdom knew about the parties’ relationship and the annexure of some letters written by her friend to her affidavit. The respondent successfully objected to the admissibility of some of that material, the rejection of which by the primary judge entailed entirely orthodox application of the rules of evidence. The appellant was invited by the primary judge to consider whether she should apply to call evidence directly from her friend by telephone link, but no such application was made and in final submissions the appellant said she did not consider it necessary.
Lastly, again under Ground 1, the appellant contended she was denied procedural fairness because the respondent was not tested on an identified part of his evidence which she alleged was false. Self-evidently, the only person who could have tested the veracity of the respondent’s evidence in cross-examination was the appellant. If she did not do so, there is no-one else to blame.
The various complaints of procedural fairness are rejected and Ground 7 fails.
The appellant made other complaints in her Summary of Argument under the rubric of Ground 7, but we do not consider them because they have nothing to do with the underlying contention about procedural unfairness in the conduct of the hearing. They instead relate to an allegation of the respondent’s failure to disclose his proprietary interest in a parcel of real property and the primary judge’s alleged failure to consider some other evidence about the parties’ alleged mutual intention to conceive a child.
Ground 1
This ground alleged:
The learned trial judge erred on the facts.
The erroneous factual findings particularised in the appellant’s Summary of Argument were:
a)attributing to the appellant an assertion that the parties considered jointly purchasing the property located at C Street, Suburb B (“the C Street property”) shortly after they met in December 2005;
b)attributing to the appellant an acknowledgement that she lived in Town E for a period after January 2006, when in fact she merely conceded she used the Town E address as her mailing address;
c)finding the appellant did not move back to live with the respondent at the C Street property before she departed on an overseas trip in March 2006;
d)finding the appellant lived in Town E upon her return from overseas in May 2006;
e)finding the appellant was living with another man in Town E;
f)attributing to the appellant a contention that she moved into the C Street property in October 2008, pending the settlement of her purchase of another property located at J Street, Suburb A (“the J Street property”) in November or December 2008, when that was allegedly the respondent’s false contention; and
g)stating that the respondent’s daughters gave evidence, when only one of them did.
The primary judge accepted that the respondent bought the C Street property in October 2005 (at [6]), before the parties met in December 2005. His Honour later referred to the appellant having deposed to the parties discussing “jointly purchasing” the C Street property (at [68]), which was a reference to the appellant’s evidence to this effect:
I met the Respondent…in December 2005…Within weeks we discussed a future together buying a house at…[Suburb B].
When referring to the parties’ prospective joint purchase of the C Street property, the primary judge was attempting to paraphrase the appellant’s evidence, which necessarily compromised accuracy to some extent because the appellant did not use the words “jointly purchasing” in her evidence, as was clear from the later recitation of her evidence in the reasons for judgment (at [197]). However, his Honour still captured the essence of her evidence. The appellant’s allegation about the parties having some ill-defined form of oral agreement about their acquisition of equal proprietary interest in the C Street property demonstrates the primary judge correctly interpreted her evidence (at [69]-[71], [179], [199]), which was plainly incorrect because the respondent bought the C Street property two months before the parties even met.
The appellant contended the parties lived together at another property in January 2006 for “a couple of weeks” (at [11]), which the respondent did not admit, but the parties did begin living in the C Street property once its purchase by the respondent was completed in late January 2006 (at [12], [175], [288]). His Honour expressly recorded the parties’ dispute about whether the C Street property was then their joint primary residence from January 2006 until July 2010 (at [13], [86]) and found it was not (at [90]).
The respondent asserted the appellant vacated the C Street property in February 2006, though the appellant said it was in March 2006 (at [14], [91], [92]). It was common ground the appellant moved away because she and the respondent’s adult daughters, who temporarily lived with the respondent, did not get along (at [10], [14], [230], [268]). It was also common ground that the appellant left to travel overseas in March 2006 and did not return until May 2006 (at [15], [16], [94], [110]). The parties disputed whether the appellant returned to live with the respondent at the C Street property at that time (at [16]) and his Honour found she did not (at [97]). His Honour’s interpretation of the evidence in reaching that finding was logically open for the following reasons.
It was common ground the appellant vacated the C Street property in either February or March 2006 and stayed elsewhere for a short period before she went overseas alone in March 2006. It is immaterial whether the primary judge misinterpreted the appellant’s evidence about changing merely her mailing address to Town E at that point in time as instead being an admission of her changing her actual place of residence (at [98]). Incontrovertibly, when the appellant returned from her overseas trip in May 2006, she disclosed to the Department of Immigration that her intended residential address was in Town E, which the primary judge accepted was a truthful declaration (at [99]-[103]). The respondent certainly denied the appellant returned to live with him. The appellant admitted in cross-examination that she had a sexual relationship with a lawyer in Town E and, although she professed uncertainty as to precisely when, it was clearly during the period she was alleging her de facto relationship with the respondent (at [73], [166], [167]). His Honour pondered the connection between the appellant’s relationship with that lawyer and her declared intention to reside in Town E from May 2006, without actually finding the circumstances were linked (at [104]). However, his Honour also took into account the appellant told a doctor in August 2006 that she normally resides in Town E (at [107]) and then told a vocational psychologist in September 2006 that she lived in Town TT (at [105]-[106]). The finding that the appellant did not live with the respondent at the C Street property after she voluntarily vacated it in February or March 2006 was consistent with all of the evidence, aside from the appellant’s uncorroborated evidence.
Moving forward to the alleged error concerning the parties’ living arrangements in late 2008, the appellant purchased the J Street property which she occupied once the purchase was completed and the tenants vacated in February 2009 (at [23], [123]). There was no dispute between the parties that the appellant lived with the respondent in the C Street property from October 2008 until February 2009 while she waited for the J Street Property to become available for her occupation. The appellant, however, alleged that she cohabited with the respondent between two properties – the C Street property and another property leased by her – from even before October 2008, which fact the respondent disputed. Even if, as the appellant alleges, the primary judge misinterpreted her evidence as coinciding with the respondent’s evidence on this point, the primary judge had already expressed an intention to accept the respondent’s evidence in preference to the appellant’s in the event of any uncorroborated conflict (at [60]) and so it made no difference. As was open, the primary judge accepted the respondent’s evidence about the confinement of the parties’ cohabitation at that time to four months (at [19], [124]-[125], [288]).
Finally, while the primary judge did once mistakenly refer to more than one of the respondent’s daughters giving evidence (at [95]), the mistake was immaterial because his Honour earlier correctly recorded that only one of the respondent’s daughters gave evidence (at [55(b)]), which evidence was later discussed in the reasons (at [229]-[232]).
No material factual error was demonstrated, so this ground must fail.
Ground 2
This ground contended:
The learned trial judge took into account irrelevant matters.
The two “irrelevant matters” which the appellant contended in her Summary of Argument the primary judge wrongly took into account were, first, the manner in which she played with her hair during cross-examination, and secondly, an assumption she had no pre-arranged accommodation when she moved to City W in or about August 2012 to start a new job.
Both complaints are dealt with simply.
The first has already been canvassed under Ground 6 in the context of bias. His Honour satisfactorily explained why the appellant’s propensity to play with her hair influenced the impression formed about her demeanour and, in turn, her reliability as a witness. It was not an irrelevant consideration, but nor was it an unduly influential feature. His Honour described it as a “minor aspect” (at [67]). The primary judge’s decision about the duration and timing of the parties’ de facto relationship obviously did not hinge upon the appellant playing with her hair.
As to the second consideration, it was common ground the appellant moved from Sydney to City W to take up new employment in August 2012 (at [149]). That move was found to mark the end of the de facto relationship. The primary judge found the appellant moved to City W without any pre-arranged accommodation (at [206]), which finding followed from uncontroversial evidence of her sleeping in her car at that time. Whether the finding about the absence of any pre-arranged accommodation was actually mistaken is not to the point because it was the appellant’s inter-state move rather than her lack of established accommodation which influenced the finding about when the de facto relationship ended. The primary judge rejected the appellant’s contention that the de facto relationship survived beyond her move to City W. While the respondent helped the appellant secure some accommodation in City W because she was sleeping in her car, as was open, the primary judge accepted that was an act of generosity in response to her request rather than evidence of the continuity of the de facto relationship (at [152]-[157]).
Although the appellant contended during the hearing that the parties’ de facto relationship continued until April 2013, she made the following concession in final submissions which is difficult, though not impossible, to reconcile with her case:
…I was generally with [the respondent] so –… for many years and, like, we were – and it only – yes, … and it broke up after I moved to City W so…
(Transcript 12 March 2019, p.104 lines 15–16) (Emphasis added)
This ground fails.
Ground 3
This ground contended:
The learned trial judge failed to take into account a material consideration.
Although this ground pleaded only a single overlooked material consideration, the appellant referred to several in her Summary of Argument. Most were allegations of fact. They were:
a)some asserted “serious flaws” in the respondent’s evidence about whether and when they lived together in the C Street property in early 2006;
b)that a document entitled “Relationships Agreement” prepared in January 2012 was prepared entirely by the respondent;
c)the appellant’s allegations of her subjection to violence by two of the respondent’s adult daughters;
d)the respondent’s failure to give full and frank disclosure of his American Express statements and Qantas frequent flyer points account;
e)the appellant wore a wedding ring;
f)the parties’ alleged mutual intention to conceive a child; and
g)the content of a Carer Assessment Report dated 7 March 2013, which recorded the appellant as having reported she was still in a relationship with the respondent at that time.
The first complaint has already been addressed under Ground 1, where it was explained how the primary judge’s findings about the parties’ residences in early 2006 were open on the evidence. The primary judge did not accept there were any “serious flaws” exposed in the respondent’s evidence, in which event there were none to take into account.
The second complaint concerns a document to which the primary judge referred in the reasons for judgment (at [40]-[41], [146]-[147], [295]), so it was not an overlooked material feature of the evidence. The document, which they both signed, was intended to record the parties’ agreement to abstain from any financial claim upon one another arising out of their relationship over the preceding six years. While the primary judge did not expressly recite how the document was prepared by only the respondent, his Honour noted the appellant’s contention that she signed the agreement under duress and accepted that an “element of pressure” was placed upon her, in which event the respondent’s authorship of it is easily inferred (at [147]). Regardless, the significance of the document from the appellant’s perspective was its acknowledgment of the parties’ “relationship” over the preceding six years, thereby dating its commencement back to January 2006. However, demonstrating that the significance of the point was not overlooked, the primary judge correctly said in the reasons for judgment:
41.…I have found that the reference [in the document] to the parties being in a “relationship” begs the question as to whether the parties were in a de facto relationship for the purposes of the Act.
…
147.As previously indicated, the reference to the parties being in a “relationship” for [six] years begs the question as to the nature of that relationship.
The third complaint relates to the appellant’s allegations of her subjection to violence by the respondent’s adult daughters. During the appellant’s final submissions, the primary judge and appellant discussed the issue in this way:
[THE APPELLANT]: … So – or the girls, because I was always scared about that the girls would come back and be violent. I specifically didn’t want to be there. So they were never pleasant to me.
HIS HONOUR: To be frank, I find the allegations of violence on the part of the daughters to be an unhelpful red herring, to be frank.
[THE APPELLANT]: Really? Well that was – they didn’t deny that they – that I was here – by [one of the respondent’s adult daughters] – and they didn’t deny that they hit the father, in the evidence.
HIS HONOUR: I - - -
[THE APPELLANT]: But that’s why we will - - -
HIS HONOUR: You can make submissions on it, if you like, but I find - - -
[THE APPELLANT]: Yes.
HIS HONOUR: - - - those – that part of your case to be unhelpful - - -
[THE APPELLANT]: Yes. Well, I wasn’t - - -
HIS HONOUR: - - - to the issues I have to determine.
[THE APPELLANT]: Yes. But it was a reason why I just didn’t keep saying that – why we went between the different residences. It was a very – that’s a very valid reason if somebody is concerned for their safety…
…
[THE APPELLANT]: And, then, why wasn’t it that the other side even called the other daughter that actually hit me? They were there. He has got two other daughters that could have given evidence …
(Transcript 12 March 2019, p.101 line 6 to p.103 line 21)
Given the questions before the primary judge were confined to whether and, if so, when the parties were in a de facto relationship, the only way in which the appellant could have legitimately used the issue of her victimisation by one or more of the respondent’s daughters to her forensic advantage was as an explanation for why she chose not to live with the respondent while any of his daughters lived with him. The primary judge recognised and accepted her explanation in that regard (at [10], [14]). However, the respondent’s daughters only lived with him for several months in early 2006 (at [229]) and so the appellant’s fear of the respondent’s adult daughters is only liable to explain an absence of the parties’ shared accommodation for a short period of months in early 2006. In the context of the other evidence, which led the primary judge to conclude the de facto relationship did not begin until many years later in October 2010, the significance of the violence diminished to the point of immateriality.
The fourth complaint concerned the appellant’s dissatisfaction with the respondent’s disclosure of his American Express and Qantas frequent flyer point statements. She submitted in her Summary of Argument:
Had [the respondent] made a full and frank disclosure of his American Express and Qantas accounts, as requested, the outcome would conceivably have been much clearer.
The solitary evidentiary issue to which those documents were allegedly relevant was whether or not the respondent used his American Express credit card to buy airline tickets for both parties when they flew to the United States of America for a holiday in 2011. The appellant and her son said the respondent bought both tickets, whereas the respondent said the parties bought their own tickets, though he perhaps shared his frequent flyer points with the appellant. The primary judge referred to the dispute (at [34], [142], [190]), so it was not overlooked. Since the primary judge found the parties’ de facto relationship started before January 2011, when the airline tickets were purchased, and ended after May-June 2011, when they actually travelled overseas together, nothing turns on the issue. The relevant events occurred during the de facto relationship, as found.
The fifth complaint relates to the appellant’s use of a wedding ring during their relationship, but the fact was not overlooked by the primary judge. It was her choice to wear the ring and it was not suggested that the respondent ever proposed marriage to her. The fact was taken into account, but just not given any weight, which was explained in the reasons for judgment (at [169], [270]).
The sixth complaint mistakenly asserts as a fact a proposition not accepted by the respondent. The appellant submitted the parties intended to conceive a child, but the respondent denied any such commitment on his part and underwent a vasectomy. Regardless, the issue was not overlooked by the primary judge as the evidence pertinent to the issue was taken into account (at [197]-[198]).
The seventh complaint concerns a vocational report compiled about the appellant in March 2013, while she was living in City W. The report records her still then referring to the respondent as her “partner”, despite her having lived in City W and him in Sydney for the preceding six months. The significance of the evidence could only be that, in March 2013, the appellant still subjectively believed she was in a de facto relationship with the respondent. It is true the report was not mentioned in the reasons for judgment, but that does not undermine the findings made by the primary judge. An individual’s honest perception about the nature of the relationship he or she is in may be relevant to, but is not determinative of, the characterisation of the relationship (Sinclair & Whittaker at [65]). Here, the primary judge found, on all of the evidence, that the appellant exaggerated the nature of the parties’ relationship (at [208]), which finding is not challenged, so the appellant’s perception about the nature of her relationship with the respondent in March 2013 carried little probative weight.
Aside from those factual points, the appellant also alleged the primary judge failed to take into account a material legal consideration, which she submitted was:
…that a de facto relationship can (and did) occur between two or even more residences.
We reject the notion that the primary judge was ignorant of and failed to take into account the prospect that a de facto relationship may subsist even though the partners do not share a common residence. In that regard, his Honour said:
…
83.In this matter both parties placed considerable emphasis on whether they were or were not living together in a common residence. That is an important consideration but as noted, on the basis of those authorities, it is just one of the factors that I am required to consider under s 4AA of the Act. In this case, determination of whether the parties actually resided in a common residence provides a convenient framework for considering the totality of matters that I am required to consider in determining whether the parties were in a de facto relationship.
…
288.In this matter, I am required to characterise the nature of the parties’ relationship in the period from December 2005 until April 2013 (‘the relevant period’). As noted previously in this decision, the periods during which the parties have lived under the one roof provides a framework for the consideration of the nature of the parties’ relationship. I have found that the parties lived under the one roof on the following occasions;
· For a period of several weeks in January and February 2006
· In the period from a date in March 2007 until 16 May 2007
· In the period from 2 October 2008 until early February 2009
· In the period from 13 October 2010 until the 15 August 2012.
…
293.A matter of considerable significance in determining whether the parties were in a de facto relationship is that whenever they stayed together under the one roof they slept in the same bed and I am satisfied that they regularly had sexual relations. The question becomes whether that fact is of such significance that it determines the characterisation of the parties’ relationship such that I should conclude that the parties were in a de facto relationship.
294.In my view it does so result in that characterisation of the parties’ relationship, as a de facto relationship, in the period subsequent to 13 October 2010 until the parties separated in late August 2012 but not in respect to the period before 13 October 2010.
…
297.I note that the parties agree that [the appellant] commenced employment in City W on 13 September 2012 and that she travelled up to City W over a period of two weeks before that and, according to [the respondent], she stayed for two weeks in her own car before renting accommodation in City W. Accordingly I am satisfied that the parties had ceased to live together from at least 15 August 2012.
298.I am satisfied that [the appellant], in the period after August 2012, commenced to establish her life independently from [the respondent]. This included obtaining and paying for her own accommodation. The fact that the parties did meet on several occasions in the period subsequent to August 2012 at which time they resumed a sexual relationship is insufficient to establish that, in the period subsequent to August 2012, the parties had “a relationship as a couple living together on a genuine domestic basis.”
This ground fails.
Ground 4
This ground contended:
The learned trial judge provided inadequate reasons.
Despite the potential breadth of this ground, the appellant’s Summary of Argument revealed her complaint was confined to the asserted inadequacy of reasons given for why she was found to lack credit as a witness. She submitted:
If credit is to be disparaged, it is submitted that adequate reasons with concrete examples should have been provided.
Unfortunately for the appellant, the primary judge’s findings concerning her credit were comprehensively elaborated, including by reference to examples. In that regard, his Honour said:
…
58.As reflected above, the written and oral evidence of the parties is at odds in a number of significant respects. Counsel for [the respondent] contends that in order to resolve the competing factual contentions, it is necessary for the Court to make findings of credit in respect to the parties’ evidence. I respectfully agree, yet, in doing so I note the caution expressed in Whalan v Kogarah Municipal Council [2007] NSWCA 5 at 41, where it was observed:
To disbelieve a party (or any witness for that matter) who swears his or her oath is a serious finding and not to be undertaken lightly without good and sufficient reasons.
…
60.Unfortunately, for reasons which I will explain, there were such serious flaws with [the appellant’s] evidence in this case, that where it is at odds with the evidence of [the respondent], unless otherwise identified, I have preferred the evidence of [the respondent].
…
64.It is necessary to recognise that [the appellant] is self-represented and some allowance must be made for a desire on her part to be both, at one and the same time, a witness and an advocate. However, the fact that [the appellant] did so resulted in a substantial amount of her statements being a conclusion and submission by nature, rather than a direct account of what event or conduct occurred, where it occurred, when it occurred and how it occurred.
65.As result, for the most part, [the appellant] was not an impressive witness. At certain times she appeared evasive and unable or unwilling to give direct answers to questions in clear or comprehensible terms. On several occasions, I found it necessary to intervene to ensure that [the appellant’s] answers were responsive and were focused on the question asked, rather than venturing into material that had no bearing on the question asked but which she nonetheless insisted on placing on the record.
66.Counsel for [the respondent] accurately described [the appellant’s] demeanour during the course of the hearing, Transcript 12 March 2019, page.105 line 35 and page 106 line 10, as follows;
She has been … unable to refrain from arguing her case through the affidavit and in her oral evidence, expressing many conclusions without facts to support them. She was, in answering questions from me, particularly argumentative, gave frequently non-responsive answers to questions or gave an answer where some of it was responsive then followed by a lengthy speech which was not responsive, but was arguing and arguing her case. She did this repeatedly and quite defiantly despite directions from the court to do otherwise and despite me telegraphing that a submission of this kind would be made at the end of the case. None of that seemed to dissuade her from the course that she decided to take.
…
In my submission, she completely failed to discharge her obligations as a witness despite the court giving her the directions that it did. ...
67.I agree with counsel for [the respondent’s] characterisation of [the appellant’s] demeanour as a witness. In addition, [the appellant] frequently appeared ill at ease in the witness box. While I make allowance for the fact that the giving of evidence in any court proceeding can be stressful, [the appellant’s] presentation varied between attempting to be quite conversational including laughing at inappropriate times to appearing to be quite tense and ill at ease. In that respect, when [the appellant] appeared ill at ease, she frequently stroked a ponytail that she wore over one shoulder. When asked about my observation of her tendency to engage in that conduct, [the appellant] stated that it was simply “a bad habit”. My observation, however, was that a tendency to so stroke her ponytail occurred at times when she had difficulty in responding to a question asked of her by counsel for [the respondent]. That aspect of [the appellant’s] presentation is, of course, only a minor aspect of my consideration of her credibility. However, I place it on the record as, in the event that one of the parties may wish to seek a review of my decision, it is an observation that the Full Court will not be in a position to perceive.
68.[The appellant’s] written and oral evidence was inconsistent in a number of respects. For example, in her Affidavit filed on 3 December 2014, which is annexed to her trial Affidavit, she stated that she and [the respondent] discussed jointly purchasing the C Street property within weeks of meeting in December 2005. This is at odds with [the respondent’s] evidence that he purchased the C Street property in October 2005, prior to meeting [the appellant]. During cross-examination, [the appellant] conceded that [the respondent] had purchased the C Street property prior to them meeting. While it suited [the appellant’s] case to assert that she was involved in the purchase of the C Street property, it simply cannot be the case that the parties discussed the purchase of the property before it occurred.
…
73.As a separate issue, during cross-examination [the appellant] denied that she had an association with a lawyer from Town RR, as initially contended by [the respondent] in his affidavit, stating that she “never had anything with anybody like where [she] worked at Town RR”. However, after further questioning by counsel for [the respondent], [the appellant] accepted that she had a sexual relationship with a “long-term friend” who is a lawyer from Town E named “Mr MM”. [The appellant] was, however, evasive, as to when she had that relationship stating that she could not recall and “it was like a good few years into – into the thing. Because I’ve known the person for so long, it’s really hard to say that. But I – is not a relationship, and that”.
74.[The appellant] had not previously included that fact in any of her Affidavit evidence, in circumstances where it could reasonably have been expected that she would have corrected [the respondent’s] evidence as set out in his trial Affidavit where he contended that [the appellant] have a relationship with a lawyer from Town RR rather than Town E. As a result of that admission, I consider that [the appellant] has sought to present only those aspects of the factual matrix relevant to this matter which support her contentions.
75.On 7 November 2008, [the appellant] applied for the First Home Owners Grant in relation to her purchase of the J Street property. In that application, she indicated that she was living at the C Street property, but that she did not have a spouse or partner. That is inconsistent with her claim, in this matter, that she and [the respondent] were in a de facto relationship between December 2005 and April 2013.
76.During the hearing, [the appellant] also conceded that she may not have been eligible for receipt of that grant if she had disclosed that, as asserted by her, she and [the respondent] were in a de facto relationship at the time of that application and that she had, as she contends in these proceedings, “an equitable interest in the C Street property.”
77.It is clear that, [the appellant] has either misrepresented her position to the New South Wales Government, in stating that she was not in a de facto relationship as at 7 November 2011, or to this Court in stating that she was in such a relationship at that time. I will, subsequently, further discuss the significance of the information provided by [the appellant] in that application for the First Home Owners Grant.
We are satisfied the reasons are sufficient to explain the finding made about the appellant’s lack of credit.
Ground 5
This ground contended:
The learned trial judge’s decision is “plainly wrong”.
The ground is incompetent because it draws upon the final established ground of appeal from a discretionary judgment; namely that the result is “plainly wrong” (Norbis v Norbis (1986) 161 CLR 513 at 539-540) or “unreasonable or plainly unjust” (House v The King (1936) 55 CLR 499 at 505). However, this was not a discretionary judgment. The specific issues for determination – the existence and duration of the de facto relationship – were entirely factual. In the appeal hearing it became plain that the appellant did not understand the distinction between use of the descriptor “plainly wrong” in the colloquial and technical senses. If the appellant’s other grounds of legal and factual error fail, so must this ground.
Even if this was a ground of appeal which the appellant could competently pursue, the submissions made in support of it within her Summary of Argument amount to no more than a complaint that the primary judge failed to accept her account of the parties’ relationship in preference to the respondent’s version of past events. The effective repetition of the arguments she advanced at trial, based on the evidence she adduced at trial, does not vindicate her complaint in the appeal that the result was plainly wrong. This ground fails.
Conclusion and costs
The appeal is dismissed for lack of merit.
In that event, the respondent sought an order for costs against the appellant.
As ordered by the Appeals Registrar on 15 October 2019, the respondent filed a schedule of the costs he claimed not less than seven days prior to the first day of the sittings in which the appeal was heard, but then attempted to file an amended schedule on the eve of the appeal hearing. The schedules left one component of the respondent’s overall claim unquantified and, if we understood his counsel correctly, his eventual claim for costs fell within a fairly broad range: somewhere between about $22,500 and $27,000. The manner in which the respondent sought to press his claim for costs, particularly against a self-represented litigant, was rather unsatisfactory.
As the appellant correctly submitted, the ordinary rule under s 117(1) of the Act is that the parties should bear her and his own costs of the proceedings. However, the appeal was wholly unsuccessful (s 117(2A)(e)) and the appellant’s financial circumstances do not reasonably militate against her payment of costs needlessly incurred by the respondent. The appellant is in reasonably well-paid employment and admitted her equity of about $600,000 in two parcels of real property, though the respondent conceded he was in a much stronger financial position than the appellant (s 117(2A)(a)).
As for the conduct of the appeal, the appellant was quite focussed on factual minutiae which required the respondent’s very thorough advertence to the evidence at trial by reference to affidavits, exhibits and transcript. The appellant showed little appreciation of the distinction between, on the one hand, the need to demonstrate error by the primary judge, and on the other, simply re-running her case at trial in reliance upon the same evidence and submissions. That made the respondent’s task in defending the appealed orders – particularly in the preparation of his Summary of Argument – more difficult. That said, the oral hearing was completed well within two hours.
Balancing the abovementioned factors, which are among those prescribed by s 117(2A) of the Act as material considerations, departure from the ordinary rule and an order for costs in the respondent’s favour is justified. In the exercise of discretion, to avoid the further delay and expense of an assessment by the Registrar, we shall order costs in the fixed sum of $15,000 payable within three months.
I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Watts & Austin JJ) delivered on 7 May 2020.
Associate:
Date: 7 May 2020
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