Mayson & Wellard
[2021] FamCAFC 115
•14 July 2021
FAMILY COURT OF AUSTRALIA
Mayson & Wellard [2021] FamCAFC 115
Appeal from: Wellard & Mayson [2017] FCCA 2225 Appeal number: NOA 45 of 2017 File number: BRC 4519 of 2016 Judgment of: STRICKLAND, RYAN & KENT JJ Date of judgment: 14 July 2021 Catchwords: FAMILY LAW – APPEAL – PROPERTY – DE FACTO RELATIONSHIPS – Onus of proof – Relevance of domestic violence and sexual assaults to cessation of de facto relationship – Correct test to determine when a de facto relationship ceases – Relevance of the need to act on or communicate an intention to separate – Merit found in grounds of appeal – Leave to appeal granted – Appeal allowed. Legislation: Family Law Act 1975 (Cth) ss 4AA, 4AB, 90RD, 90SB
Federal Proceedings (Costs) Act 1981 (Cth)Cases cited: Clarence & Crisp (2016) FLC 93-728; [2016] FamCAFC 157
Keene & Scofield (No.2) [2013] FCCA 1107
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Moby & Schulter (2010) FLC 93-447; [2010] FamCA 748
Radecki & Fairbairn (2020) FLC 94–001; [2020] FamCAFC 307Division: Appeal Division Number of paragraphs: 56 Date of hearing: 3 March 2021 Place: Heard in Brisbane, delivered in Adelaide Counsel for the Appellant: Mr Bunning Solicitor for the Appellant: SJP Law The Respondent: No appearance ORDERS
NOA 45 of 2017
BRC 4519 of 2016APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MS MAYSON
Appellant
AND: MR WELLARD
Respondent
ORDER MADE BY:
STRICKLAND, RYAN & KENT JJ
DATE OF ORDER:
14 JULY 2021
THE COURT ORDERS THAT:
1.Leave be granted to the appellant to adduce as further evidence document 1 of the bundle of documents filed on 5 February 2021.
2.Leave to appeal be granted.
3.The appeal be allowed.
4.The orders made on 15 August 2017 be set aside.
5.The proceedings be remitted to the Federal Circuit Court of Australia for re-hearing by a Judge other than the primary judge.
6.The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
7.The Court grants to the appellant a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the re-hearing.
Note: The form of the order is subject to the entry in the Court’s records.
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 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Mayson & Wellard has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
STRICKLAND, RYAN & KENT JJ
INTRODUCTION
On 8 June 2018 Ms Mayson (“the appellant”) filed an Amended Notice of Appeal seeking leave to appeal, and if leave is granted to appeal from the orders made by a Judge of the Federal Circuit Court of Australia on 15 August 2017.
There was no appearance at the hearing of the appeal by Mr Wellard (“the respondent”), but as we will explain shortly, we were content to proceed with the appeal in the absence of the respondent. Indeed, he has not participated in the appeal since September 2018.
The primary order the subject of the appeal comprises a declaration pursuant to s 90RD(1) and s 90RD(2) of the Family Law Act 1975 (Cth) (“the Act”) that a de facto relationship existed between the parties, and that it existed from February 2010 until 8 November 2015.
On 20 November 2020 the appellant filed an Application in an Appeal seeking leave to adduce further evidence. To that end, a bundle of documents comprising that further evidence was filed on 5 February 2021. At the hearing of the appeal the appellant only sought to adduce as further evidence the first three of the documents in that bundle.
BACKGROUND
On 17 May 2016 the respondent commenced property settlement proceedings against the appellant. The respondent alleged that a de facto relationship existed between himself and the appellant from mid-2009 until 8 November 2015, and sought an equal division of the property of the parties.
The appellant in response sought an order that the application be dismissed, asserting that although the parties resided together under the one roof until 8 November 2015 when she obtained an order removing the respondent from her home, the parties were only in a de facto relationship from February 2010 until late 2011, or at the latest early 2012. The significance of that is that on the facts of this case the Court had no jurisdiction to make an order for property settlement if the de facto relationship was in existence for less than two years (see s 90SB of the Act).
The primary judge heard the threshold issue as to the existence and duration of the de facto relationship in November 2016, and on 15 August 2017 her Honour delivered reasons for judgment and made the orders the subject of the appeal.
On 11 September 2017 the appellant filed her initial Notice of Appeal, and the property settlement proceedings were stayed pending resolution of that appeal.
The progress of the appeal was delayed thereafter as a result of the respondent being found guilty in November 2017 of the rape of the appellant, and of various sexual assaults and assaults occasioning actual bodily harm on her. The respondent was sentenced to various terms of imprisonment with the longest being three years, and they were all to be served concurrently.
Further, in March 2018 and May 2018 the respondent pleaded guilty to various breaches of domestic violence orders obtained by the appellant, and was sentenced to further terms of imprisonment for each offence. These offences occurred after the cessation of the de facto relationship, as found by her Honour.
The appeal was ultimately listed for hearing on 12 September 2018, but on the application of the respondent, an adjournment was granted by consent, with a further directions hearing to take place no earlier than 30 April 2019. The solicitors for the respondent had filed a Notice of Ceasing to Act, and the respondent sought time to instruct alternative solicitors.
In 2019 the respondent was released on parole, but he failed to engage with the proceedings thereafter, and his whereabouts became unknown.
On 6 November 2020 the Appeal Registrar made an order for substituted service of documents upon the respondent utilising his Address for Service that was still current in the Court below.
On 21 December 2020 orders were made by the Appeal Registrar that the appeal be listed for hearing in the next available Brisbane Full Court sittings, and providing for relevant documents to be filed including in particular the respondent’s summary of argument and list of authorities. However, the respondent failed to comply with any of the orders directed to him.
The appeal was ultimately listed for hearing on 3 March 2021, and as referred to above we were content to proceed with the hearing in the absence of the respondent given his involvement in the appeal up to September 2018, and that thereafter all relevant documents have been sent to him pursuant to the order for substituted service.
THE APPLICATION TO ADDUCE FURTHER EVIDENCE
To repeat, the application is to adduce three of the documents contained in the bundle of documents filed on 5 February 2021.
The first document is the “Verdict and Judgment Record” from the District Court of Queensland providing the details of the offences in respect of which the respondent was found guilty and sentenced in November 2017.
The second document is the “Verdict and Judgment Record” from the Magistrates Court of Queensland providing the details of the offences in respect of which the respondent pleaded guilty and was sentenced in March 2018.
The third document is the “Verdict and Judgment Record” from the Magistrates Court of Queensland providing the details of the offences in respect of which the respondent pleaded guilty and was sentenced in May 2018.
It is argued that this evidence is relevant to the appeal and demonstrated error by the primary judge. That is because they go to the appellant’s case at trial that she was subjected to horrific domestic violence at the hands of the respondent, and that militated against a finding of “a genuine domestic relationship” subsequent to late 2011 or early 2012, and a finding that there was a relevant sexual relationship that also continued thereafter.
We accept the relevance of the first document for the reasons put, but we are not persuaded that the other documents are in that category. For example, the second and third documents relate to contraventions for breaching domestic violence orders subsequent to the cessation of the de facto relationship as found by her Honour.
Thus, we are prepared to allow the appellant to adduce further evidence comprising the detail of the various offences in respect of which the respondent was found guilty and sentenced to terms of imprisonment in November 2017, namely the first document in the bundle.
LEAVE TO APPEAL
In support of the application for leave to appeal, the appellant relies on merit being found in the grounds of appeal to satisfy the requirement that there be sufficient doubt about the decision to warrant it being reconsidered, and that substantial injustice would result if leave were refused, supposing the decision to be wrong (Medlow & Medlow (2016) FLC 93-692).
It is also put that there are public policy considerations that arise in this appeal, namely the interpretation of what constitutes “a genuine domestic relationship”, and what constitutes “a sexual relationship” under s 4AA of the Act.
Finally, the appellant submits that she would suffer substantial injustice if leave is refused because she would then have to conduct the property settlement proceedings “against a person who has been convicted and sentenced to serious offences against her” (paragraph 19, appellant’s Summary of Argument filed on 20 July 2018).
We will return to the question of leave following our consideration of the grounds of appeal.
THE GROUNDS OF APPEAL
The first thing to note is that although in her Summary of Argument Ground 4 was said to not be pressed, at the hearing of the appeal that submission was withdrawn, and Ground 4 was ultimately pressed.
Secondly, at the hearing of the appeal, although the grounds of appeal still provided the basis for the submissions of the appellant, the argument developed somewhat differently than dealing with each ground of appeal seriatim, and we consider it appropriate to adopt that approach in addressing this appeal.
The onus of proof
Given that there was no issue that the parties lived together under the same roof between February 2010 and 8 November 2015, the task for her Honour, as identified in [14] and [19] was to determine whether the parties had a relationship “as a couple living together on a genuine domestic basis” (s 4AA(1)(c) of the Act) for that period of time. The respondent’s case was that they were, but the appellant’s case was that that was not the position after late 2011/early 2012.
As the applicant in the proceedings below, and seeking the declaration and orders that he did, the onus was clearly on the respondent to establish that there was a de facto relationship until 8 November 2015. However, it is apparent from her Honour’s reasons for judgment commencing at [46] that her Honour reversed that onus, requiring the appellant to establish that there was no de facto relationship after late 2011/early 2012, and in particular that the separation occurred at that time. This is a clear error by her Honour which infects the process and ultimately the outcome to the extent that it makes her Honour’s decision unsafe.
The relevance of the evidence of the domestic violence and the sexual assaults
Her Honour, at [47] and [48] quoted extensively from the appellant’s affidavits wherein she detailed the history of the relationship, and specifically the serious domestic violence that she suffered at the hands of the respondent, the cessation of the consensual sexual relationship in mid-2011, her being too afraid of, and too intimidated by the respondent to tell him not to travel or move with her, and importantly why she claimed that the de facto relationship ceased in late 2011/early 2012.
It is apparent that her Honour accepted this evidence, and she made no finding otherwise. However, in [35] after recording in [34] that “the crux of the [appellant’s] case both in terms of the existence of a de facto relationship and her forming her intention to separate” was “that she was a victim of significant violence perpetrated by the [respondent]”, her Honour said this:
Sadly, however, as [former counsel for the respondent] submitted, evidence of domestic violence in a relationship can have limited relevance to determining whether a de facto relationship existed…
(Emphasis added)
This reveals another error by her Honour. Section 4AA(1) of the Act mandates that regard must be had to all the circumstances of the relationship in determining whether it is one of a couple living together on a genuine domestic basis. Then s 4AA(2) sets out some of the circumstances to be considered, including “whether a sexual relationship exists”, and s 4AA(3) provides in effect that no particular finding is determinative.
Thus, her Honour needed to have regard to all the circumstances of the relationship, and given that her Honour accepted the evidence of the appellant as to the circumstances in this case and in particular having regard to the fact that after mid-2011 any sexual activity was non‑consensual (a circumstance clearly supported by the respondent being found guilty of raping and sexually assaulting the appellant), it is not explained by her Honour in her reasons for judgment why those circumstances could only have “limited relevance” in this case; plainly they were highly relevant, and could only have led to a finding by her Honour that there was not a genuine domestic relationship in place here after late 2011/early 2012. Further, we do not consider that the two authorities cited by her Honour in this context, namely Moby & Schulter (2010) FLC 93-447 (“Moby & Schulter”) and Keene & Scofield (No.2) [2013] FCCA 1107 (“Keene & Scofield”) support her Honour’s conclusion that the circumstances here of domestic violence and non-consensual sex were of limited relevance.
As is readily apparent from the terms of s 4AA read as a whole, each case falls to be considered on its unique facts in determining whether, “having regard to all of the circumstances”, it can be concluded that the relationship under consideration is “as a couple living together on a genuine domestic basis”. There will be cases, such as Moby & Schulter and Keene & Scofield where, notwithstanding an instance of, or some episodes of, family violence (as defined in s 4AB of the Act), upon review of all the circumstances of the relationship, the conclusion that the relationship meets the statutory definition is nevertheless tenable. However, it does not follow that the presence of family violence within a relationship cannot have determinative significance as to whether the relationship meets, or continues to meet, the statutory definition. There will be cases where the nature and extent of family violence and/or its effects upon the victim renders untenable the characterisation of that relationship as one of “a couple living together on a genuine domestic basis”. The perpetration of family violence is entirely antithetical to the element of mutuality which may generally be accepted as an element, at least to some degree, in a genuine relationship as a couple. It follows that family violence will always be highly relevant as one of the circumstances to be considered in determining whether, on review of all of the circumstances of the relationship, the statutory test is met.
When did the de facto relationship cease?
After her Honour had quoted extensively from the appellant’s affidavits at [47] and [48], her Honour turned to the question of what needs to be demonstrated to find that “separation” has occurred. Putting aside her Honour’s error identified above in reversing the onus, her Honour said this:
50.The law as I understand it with regard to “separation” is that there must be three things I need to be satisfied of to find that separation occurred, one party must form an intention to end the relationship, that party must act upon the intention and must communicate that intention to the other party.
Her Honour found in [62] that she could accept that “because of the violence the [appellant] alleges the [respondent] perpetrated against her, she decided or formed an intention to separate, maybe as early as late 2011, early 2012”, but her Honour was not satisfied that “[the appellant] acted in a way that could [send] a message to the [respondent] that she had formed that intention or that she communicated that intention to him”.
The thrust of her Honour’s approach was the need to find that the appellant acted upon her intention to separate and communicated that intention to the respondent (see [50] and [56]–[60]).
However, we consider that her Honour erred in requiring that to be established.
The issue is not whether the parties “separated”, but whether the de facto relationship broke down or ceased.
Thus, it is not even necessary to specifically enquire as to whether an intention to separate was formed, and that intention acted upon and/or communicated to the other party.
There is no mention in the Act, and in particular in the definition section (s 4AA) of there needing to be an intention formed to either enter into a de facto relationship, or relevant to this matter, to end it.
Indeed, it seems to us that the Full Court in Clarence & Crisp (2016) FLC 93-728 correctly identified the test to determine whether a de facto relationship has come to an end. The Full Court said as follows:
51.Ultimately, however, we consider the real test (since it conforms with the statute as a matter of logic) was that identified by Murphy JA earlier in H v P [[2011] WASCA 78]:
56 ... a de facto relationship is inherently terminable at any time, and continues to exist only insofar as the indicia which give the relationship its ... character continue to exist.
52.Looked at in this way, the task of determining whether a relationship has ended at or before a particular date is precisely the same task that must be performed when determining whether a de facto relationship exists in the first place – i.e. by reference to the indicia laid down in the legislation…
Thus, her Honour’s attention should have been drawn to whether the evidence demonstrated that, having regard to all the circumstances of the relationship, including those referred to in s 4AA(2), after late 2011/early 2012, the parties had a relationship as a couple living together on a genuine domestic basis.
Plainly, the comparison of the circumstances as they existed prior to late 2011/early 2012 with the circumstances that existed thereafter should have led her Honour to find that the de facto relationship ceased at that time.
That said, if an intention to end a de facto relationship can be identified, that is still powerful evidence to be taken into account under s 4AA, and particularly s 4AA(4) of the Act (Radecki & Fairbairn (2020) FLC 94–001 at [29]).
Here there was not only evidence of the appellant forming an intention to end the relationship, but also of acting on that intention and even communicating it to the respondent.
Of course, as submitted by the appellant, any consideration of when and how she communicated her intention to separate must be undertaken against a background of there being severe domestic violence and sexual assaults rendering the appellant in fear for her life and intimidated by the respondent.
In that regard there was this exchange between the appellant and counsel for the respondent during cross-examination:
[COUNSEL FOR THE RESPONDENT]: You didn’t communicate it to him at any stage that you intended or wanted to end the relationship, did you?
[THE APPELLANT]: I was hoping and told him numerous times, “Just go”, and then it was always, “Give me money and I will go.” That was throughout the course of the relationship, that same argument. And then he said he has got no intention of paying until I pay him money.
[COUNSEL FOR THE RESPONDENT]: Ma’am, you never verbally conveyed to him an express intention to end your relationship, did you?
[THE APPELLANT]: I told him I want him out all the time, but I lived in constant fear of my life constantly on a daily basis, and abuse, like frozen in fear.
(Transcript 4 November 2016, p 65 line 15 – 23) (As per the original)
As also submitted by the appellant, this evidence was consistent with her affidavit. For example, in paragraphs 103 – 106 of her affidavit of evidence-in-chief filed on 8 September 2016, the appellant deposed as follows:
103. I didn’t know how to get out of the relationship.
104.When I did say that I was going to see a lawyer he would yell at me and threaten that if I did go and see a lawyer, he would go and see one as well.
105.He used to go through the telephone book and ring lawyers to make me an appointment. He would then throw the phone book at me. [The respondent] would ring 000 to ask for the police.
106.From approximately early 2012 [the respondent] would scream at me, at least once a week, telling me he would leave straight away if I gave him $100,000.00 cash. I had no way of providing [the respondent] with that amount of money. When I would tell [the respondent] that I could not get that sort of money he would tell me to get a loan or sell my house in Victoria or Perth.
In her reasons for judgment at [57] and [58], her Honour referred to the affidavit evidence of the appellant but discounted it because it did not appear in her earlier affidavits. However, her Honour failed to refer at all to the appellant’s oral evidence.
We consider that there was sufficient evidence for her Honour to find that the appellant’s intention to cease the de facto relationship was communicated, not only verbally, albeit indirectly, but by her actions in the context of the severe domestic violence and sexual assaults perpetrated by the respondent on the appellant.
Thus, again her Honour has erred.
CONCLUSION
Having found appellable error by her Honour, leave to appeal should be granted. There is clearly sufficient doubt about her Honour’s decision to warrant it being reconsidered, and substantial injustice would result if leave were refused. The appeal should then be allowed, and the orders set aside.
In that event the appellant sought that this Court re-exercise the discretion rather than remit the proceedings for rehearing. However, there has been no notice to the respondent that a re‑exercise of discretion would be sought, and counsel for the appellant appropriately conceded that procedural fairness required that the respondent have the opportunity to present his case in that event. Accordingly, the proceedings will need to be remitted for re-hearing.
COSTS
In the event that leave to appeal is granted, and the appeal allowed, the appellant sought costs certificates for the hearing of the appeal and the re-hearing pursuant to the Federal Proceedings (Costs) Act 1981 (Cth). Given that the appeal is being allowed on a question of law, and no costs order is being made, it is appropriate that the costs certificates be issued.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Strickland, Ryan & Kent. Associate:
Dated: 14 July 2021
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