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…
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CaseChat Overview and Summary
In this case, the appellant sought leave to appeal against the decision of the primary judge in property settlement proceedings between her and the respondent, who was her former de facto partner. The respondent was convicted and sentenced to terms of imprisonment for various offences against the appellant, including rape and sexual assaults, which occurred during and after the de facto relationship. The primary judge found that the de facto relationship existed from mid-2009 until 8 November 2015, and ordered an equal division of the parties' property. The appellant argued that the relationship only existed from February 2010 until late 2011 or early 2012, and that the primary judge erred in finding that there was a genuine domestic relationship and a relevant sexual relationship after that time. The appellant also sought leave to adduce further evidence, including the details of the respondent's convictions and sentences, to support her case.
The legal issues in this appeal were whether the primary judge erred in finding that the de facto relationship existed for longer than the appellant contended, and whether the appellant should be granted leave to adduce further evidence to support her case. The court found that the primary judge had erred in finding that the de facto relationship existed for longer than the appellant contended, and that there was a genuine domestic relationship and a relevant sexual relationship after late 2011 or early 2012. The court also found that the appellant should be granted leave to adduce further evidence, including the details of the respondent's convictions and sentences, to support her case.
The court held that the primary judge erred in finding that the de facto relationship existed for longer than the appellant contended, and that there was a genuine domestic relationship and a relevant sexual relationship after late 2011 or early 2012. The court found that the primary judge had failed to properly consider the evidence of the appellant's experience of domestic violence and sexual assaults at the hands of the respondent, and that this evidence was relevant to the existence and nature of the de facto relationship. The court also found that the primary judge had erred in finding that the respondent's breaches of domestic violence orders subsequent to the cessation of the de facto relationship were irrelevant to the existence and nature of the relationship.
The court granted the appellant leave to adduce further evidence, including the details of the respondent's convictions and sentences, to support her case. The court found that this evidence was relevant to the appellant's case at trial, and that it demonstrated error by the primary judge. The court allowed the appeal, set aside the orders made by the primary judge, and remitted the proceedings to the Federal Circuit Court of Australia for re-hearing by a Judge other than the primary judge. The court also granted the appellant a costs certificate pursuant to the provisions 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 and the re-hearing.
The legal issues in this appeal were whether the primary judge erred in finding that the de facto relationship existed for longer than the appellant contended, and whether the appellant should be granted leave to adduce further evidence to support her case. The court found that the primary judge had erred in finding that the de facto relationship existed for longer than the appellant contended, and that there was a genuine domestic relationship and a relevant sexual relationship after late 2011 or early 2012. The court also found that the appellant should be granted leave to adduce further evidence, including the details of the respondent's convictions and sentences, to support her case.
The court held that the primary judge erred in finding that the de facto relationship existed for longer than the appellant contended, and that there was a genuine domestic relationship and a relevant sexual relationship after late 2011 or early 2012. The court found that the primary judge had failed to properly consider the evidence of the appellant's experience of domestic violence and sexual assaults at the hands of the respondent, and that this evidence was relevant to the existence and nature of the de facto relationship. The court also found that the primary judge had erred in finding that the respondent's breaches of domestic violence orders subsequent to the cessation of the de facto relationship were irrelevant to the existence and nature of the relationship.
The court granted the appellant leave to adduce further evidence, including the details of the respondent's convictions and sentences, to support her case. The court found that this evidence was relevant to the appellant's case at trial, and that it demonstrated error by the primary judge. The court allowed the appeal, set aside the orders made by the primary judge, and remitted the proceedings to the Federal Circuit Court of Australia for re-hearing by a Judge other than the primary judge. The court also granted the appellant a costs certificate pursuant to the provisions 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 and the re-hearing.
Orders
Orders of the court
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.
Background
Background to the litigation
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.
Evidence
Evidence Before The Court
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).
Decision
Reasons for decision
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.
Ratio Decidendi
Legal Principle Established
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