Na v Tiu (No 2) - [2017] FamCAFC 269

FAMILY COURT OF AUSTRALIA

NA & TIU (NO. 2)

[2017] FamCAFC 269

FAMILY LAW – APPEAL – DE FACTO RELATIONSHIP – where the trial judge declared that no de facto relationship, within the meaning of s 4AA of the Family Law Act 1975 (Cth) ever existed between the appellant and the respondent – where the appellant contends that he was denied procedural fairness – where such asserted procedural unfairness arises from the late filing of affidavit material – where the appellant asserts that the trial judge erred in law by applying the wrong test – where it is asserted on appeal that the trial judge considered whether the subject relationship was “imbued with the bilateral dedication of the deeply emotional and financial kind intrinsic to de facto relationships” – where the use of such phrases imposes an impermissible gloss upon the statutory test – where a consideration of the trial judge’s reasons as a whole make clear that his Honour applied the correct statutory test – where no error demonstrated – where appeal dismissed.

Family Law Act 1975 (Cth) s 4AA

Cadman & Hallett (2014) FLC 93-603
Cuan & Kostelac (2017) FLC 93-801
Fleming & Schmidt [2017] FamCAFC 12
Jonah & White (2012) FLC 93-522
Lynam v Director General of Social Security(1983) 52 ALR 128
Onslow & Onslow [2016] FamCAFC 7
Sha & Cham [2017] FamCAFC 161
Sinclair & Whittaker (2013) FLC 93-551

APPELLANT:

Mr Na

RESPONDENT:

Ms Tiu

FILE NUMBER:

SYC

2315

2014

APPEAL NUMBER:

2017

DATE DELIVERED:

15 December 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Thackray, Kent & Watts JJ

HEARING DATE:

15 December 2017

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

1 May 2017

LOWER COURT MNC:

[2017] FamCA 282

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Bridger

SOLICITOR FOR THE APPELLANT:

Brighton Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Morahan

SOLICITOR FOR THE RESPONDENT:

Chen Shan Lawyers

Orders

The appeal be dismissed.
The appellant contribute to the respondent’s costs fixed in the sum of $15,000.

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 Na & Tiu (No. 2) 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: EA 55 of 2017
File Number: SYC 2315 of 2014

Mr Na

Appellant

And

Ms Tiu

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Thackray J

This is an appeal against a declaration made by Austin J on 1 May 2017 that no de facto relationship, within the meaning of s 4AA of the Family Law Act 1975 (Cth) (“the Act”) ever existed between the appellant and the respondent.
The appellant had sought a declaration that the parties resided in such a relationship from July 2006 to October 2012.

Grounds of appeal

There were originally five grounds of appeal.
Grounds 1, 2, and 3 were procedural fairness grounds.
Ground 4 asserted an error of law.
Ground 5 asserted errors in various findings of fact but was abandoned.

Grounds 1, 2 and 3 – procedural fairness

Ground 1 originally contained a grab-bag of complaints. All but grounds 1(a), (b) and (c) were abandoned at the outset of the argument. Ground 2 was not a proper ground and was not pressed. Ground 3 was also properly abandoned.
Grounds 1(a), (b) and (c) were expressed in these terms:
1. The Appellant was denied procedural fairness in the conduct of the hearing in that:
(a) The Trial Judge disallowed the Appellant’s objection to the Respondent’s affidavits [Ms Tiu] affirmed 21 March 2017 of 165 paragraphs and 183 pages which was filed on Tuesday 21 March 2017 and sent by email after close of business on Tuesday 21 March 2017 at 8.21pm, and subsequently sent by post in circumstances where:
(i) the affidavit was served well outside the timetable set for hearing;
(ii) the previously served affidavit relied on by the Respondent was an affidavit by the Respondent’s solicitors […] dated 7 April 2015 which consisted of 2 paragraphs and which annexed an affidavit of the Respondent affirmed 19 May 2014 consisting of 51 pages and 21 paragraphs, which annexed another affidavit of the Respondent affirmed in Supreme Court proceedings on 1 August 2012 consisting of 70 paragraphs and 38 pages.
(b) The Trial Judge disallowed the Appellant’s objection to the Respondent’s affidavits [Ms Tiu] affirmed of 23 March 2017 of 23 paragraphs and 19 pages which was filed on Thursday 23rd March 2017, sent by email on Thursday 23rd March 2017 at 1.42 pm and was subsequently sent by post.
(c) The Trial Judge allowed the Respondent to read and rely on affidavits referred to Grounds 1 and 2 above.
Consideration of these associated complaints requires some knowledge of the procedural background. This will place in context the appellant’s complaint about the prejudice caused by the late filing of the respondent’s affidavits.
The proceedings were commenced by the appellant in April 2014; almost three years prior to the matter proceeding to trial in March 2017. An application for summary dismissal, filed in April 2015, was dismissed in February 2016.
In June 2016, the respondent filed an application in a case seeking a declaration that the parties had not been in a de facto relationship. The respondent also sought a separate hearing of that issue. The application was listed for 27 July 2016, when an order was made for the matter to be referred to the registry for the allocation of a hearing date on the threshold issue.
The appellant failed to file a response and responding affidavit as required by the relevant rules. The respondent asserts that a hearing date could not be allocated until those documents were filed. On 2 November 2016, orders were made requiring the appellant to file and serve the documents within seven days. The respondent was given 28 days in which to file her affidavits in reply.
The appellant failed to comply with the orders made on 2 November 2016. On 23 December 2016 the respondent filed another application in a case seeking to deal with the appellant’s failure to comply with the orders.
The appellant eventually filed his response and affidavit on 26 January 2017. An affidavit by the appellant’s son was then filed on 30 January 2017.
The 28 day time period in which the affidavit in reply was to be filed then commenced running. On this basis, the respondent’s affidavits should have been filed by a date late in February 2017.
On 8 February 2017, the parties were informed the matter was listed for a three-day hearing on the threshold issue commencing on 27 March 2017.
The respondent’s affidavit in reply was served on the appellant, after hours, on Monday 20 March 2017 – leaving four full business days and a weekend for the respondent to consider them before the trial commenced.
On 23 March 2017, the respondent affirmed an affidavit in reply to the affidavit of the appellant’s son, although ultimately, the son was not required for cross‑examination on that document.
In setting out this history it will be seen that the appellant’s delay in filing affidavits was more egregious than the respondent’s. It is also important to record that the appellant would have been in no doubt about at least the thrust of the respondent’s case since, as his Honour pointed out in the course of argument about the appellant’s objection to the late filed affidavits, “… I’ve got about seven or eight other affidavits that she has filed in the course of these proceedings which is about two inches thick” (transcript, 27 March 2017, p 8, l 7).
Counsel for the respondent submitted to his Honour that there was nothing new in his client’s affidavits, but that it was important that they be filed as they were responsive to the assertions made in the appellant’s affidavits. Counsel for the respondent nevertheless accepted there was prejudice to the appellant in the late filing of the affidavits and sought an adjournment for so long as was necessary to allow the appellant “to come to grips” with them (transcript, 27 March 2017, p 15, l 39). This proposal was firmly rejected by counsel for the applicant who said “[w]e certainly don’t want to adjourn the matter. We’re certainly not joining in any application for adjournment” (transcript, 27 March 2017, p 17, l 41-43).
There then followed a series of exchanges between counsel and the bench:
HIS HONOUR: Let me ask you this question, imagine that the respondent is not able to rely upon the two affidavits filed and served last week, and as a consequence, is obliged to proceed on the basis of material that has been filed and served months and years ago. How long would you anticipate your cross-examination of the respondent would be?
[COUNSEL FOR THE APPLICANT]: A couple of hours, I think.
HIS HONOUR: Half a day?
[COUNSEL FOR THE APPLICANT]: Yes.
HIS HONOUR: Right. So it’s a day and a half case.
[COUNSEL FOR THE APPLICANT]: Yes.
HIS HONOUR: Half a day for cross-examination of each case, that’s a full day, and a half day for submissions.
[COUNSEL FOR THE APPLICANT]: Yes.
HIS HONOUR: Right. So if we started by tomorrow morning, we would still be finished Wednesday lunch time doing the best we can with that - - -
[COUNSEL FOR THE APPLICANT]: Yes. Yes, I think so.
HIS HONOUR: - - - plan. All right. So you’re going to have to tell me what it is that’s going to cause prejudice to the applicant that can’t be overcome by the delay of the remainder of the day for you to get on top of this material that has been filed. And then of course, if I decide that you’re able to do that in the balance of the day and we start tomorrow, you will still have your powder dry in terms of a costs application for an extra day wasted, won’t you?
[COUNSEL FOR THE APPLICANT]: Yes.
HIS HONOUR: Okay.
[COUNSEL FOR THE APPLICANT]: Your Honour, my friend just – sorry – my instructing solicitor – just pointed out to me that the respondent actually has an interpreter, so that could make her cross-examination longer. But leaving that aside, I – when I read the affidavit, there were a couple of things at least that jumped out at me as needing extra – that could have led to a notice to produce, or a subpoena or – but if I can address those during the day, then I would know tomorrow, and perhaps - - -
HIS HONOUR: You might ask me, for example, for permission to issue a notice to produce to the respondent - - -
[COUNSEL FOR THE APPLICANT]: Yes.
HIS HONOUR: - - - at 11.30 - - -
[COUNSEL FOR THE APPLICANT]: Yes.
HIS HONOUR: - - - that’s returnable at 4 o’clock this afternoon.
[COUNSEL FOR THE APPLICANT]: Yes.
HIS HONOUR: Let’s be creative.
[COUNSEL FOR THE APPLICANT]: Yes. I’m happy to do that, your Honour.
HIS HONOUR: Okay. Well, it’s 10.30. I’m going to back on this bench at 10.45 without delay, and I want to hear what your proposal is in response to the application to adjourn either until tomorrow, this afternoon, Wednesday or into the never-never.
[COUNSEL FOR THE APPLICANT]: Yes.
HIS HONOUR: Okay?
[COUNSEL FOR THE APPLICANT]: Yes.
HIS HONOUR: Thanks.
(Transcript, 27 March 2017, p 17 l 45 to p 19 l 21)
Following a short adjournment, there was a series of exchanges between counsel and the bench in which the trial judge endeavoured to ensure that the matter could proceed, as the appellant wished, while ameliorating the prejudice to the appellant of the late filing of the affidavits (transcript 27 March 2017, p 19 – 33). Counsel for the appellant at one point advised his Honour that “we could cope with” the proposal his Honour made to give the appellant further time in which to prepare to meet the respondent’s case, it being common ground that the trial would probably not occupy the full three days allocated.
After giving both parties the opportunity to be heard in relation to the course he intended to follow, the trial judge made the following order on 27 March 2017:
…
3. Subject to the respondent’s production to the applicant of the following documents within the stipulated time, leave is granted to the respondent to rely upon her affidavits filed on 20 March 2017 and 23 March 2017:
(a) The complete set of Westpac Bank statements between April 2007 and March 2012 referred to in paragraphs 17 and 39 of the respondent’s first affidavit (by 3.00 pm today);
(b) The notebook referred to in paragraph 45 of the respondent’s first affidavit (by 3.00 pm today); and
(c) Copies of all pages of the respondent’s passport (by 9.30 am tomorrow).
No appeal has been filed against that order. Significantly, the order carried the accurate notation that the parties did not seek that his Honour give any reasons for granting leave to the respondent to rely upon her late filed affidavits. In my view there is a strong argument for considering that these facts are fatal to the grounds of appeal the appellant now seeks to pursue.
In any event, it was only in closing addresses that counsel for the appellant complained about the procedure she had earlier said she could “cope with”, as appears from the following passage from the transcript:
[COUNSEL FOR THE APPLICANT]: But your Honour the other thing is, of course, that affidavit was filed far too late for anybody to properly - - -
HIS HONOUR: Well, you can’t harp about that. I made a decision about what was happening with that procedurally on Monday. You had the cross-examination of the respondent delayed for 24 hours to give you an opportunity to get on top of that.
You cross-examined him over two days for four and a-quarter hours in circumstances where you told me it would be two, and you had your way on a fair few objections over a period of two hours. So I can’t accept – if you are implying that you didn’t have a reasonable opportunity to get on top of the affidavit, I can’t accept that’s so.
[COUNSEL FOR THE APPLICANT]: Well, your Honour, of course, we were in court all day until 4 o’clock. All other things being equal, the applicant would have been in the witness box in any event.
HIS HONOUR: Apply for an adjournment.
[COUNSEL FOR THE APPLICANT]: Well, I thought I had.
HIS HONOUR: You didn’t. The only person who applied for an adjournment, as I recall, was [counsel for the respondent] and that was refused. What I did was postpone your cross-examination of the respondent from Monday until Tuesday in circumstances where the affidavit had been filed on the 20th, and you got it, I think, you told me on the 21st. So you had had it for six or seven days before the trial started on Monday and when we had the argument about what evidence could be relied upon, I found, having regard to where the prejudice lay, that the respondent could rely upon the affidavits, but you would have an extra night to prepare further cross-examination that you saw fit. I don’t have a recollection of you making application for an adjournment at any point.
[COUNSEL FOR THE APPLICANT]: Well, your Honour. - - -
HIS HONOUR: In fact, you opposed the adjournment application made by [counsel for the respondent].
[COUNSEL FOR THE APPLICANT]: Well, your Honour, that was on the basis – we opposed the adjournment on the basis that that affidavit would not be read.
HIS HONOUR: Yes.
[COUNSEL FOR THE APPLICANT]: We consented to it going in on the basis that that affidavit would not be read [sic] but then the affidavit was read, and I didn’t have time to prepare properly. I’m still struggling to get my head around the whole affidavit.
HIS HONOUR: Well, it sounds to me like too much complaint too late, […], with the greatest of respect. This case has been going for three years and - - -
[COUNSEL FOR THE APPLICANT]: Well - - -
HIS HONOUR: - - - your affidavits, I’m told, from the other side were late because they weren’t filed until – please let me finish – they weren’t filed until January, and the view that I took about that, as you recall, on Monday is that even if they were late they still had two months to look at it, and their affidavits were appallingly late last week. But it’s not as if you come to this court without experience. You’re an experienced advocate, and the only affidavit upon which you asked any questions was the large one and ended being in your hands for about six days, perhaps, seven before the trial started on Monday, and I gave you an extra night’s grace before you were called upon to cross-examine. And it beggars belief that that affidavit would have contained material significantly different from the multiplicity of affidavits filed by the respondent in the preceding three years.
[COUNSEL FOR THE APPLICANT]: It is very different, your Honour, in my submission.
HIS HONOUR: And you didn’t ask a single question about inconsistencies.
[COUNSEL FOR THE APPLICANT]: I did ask about inconsistencies, certainly, in one respect.
HIS HONOUR: About which it was apparently not inconsistent after all.
[COUNSEL FOR THE APPLICANT]: But one of the reasons is there was so much more information in the new affidavit - - -
HIS HONOUR: Let’s not have an argument over spilt milk, […]. I made a decision about that on Monday. I’ve heard nothing about it now until argument in reply at 4 o’clock on the third day of a three-day trial. It’s done and dusted. What evidence – what other submission do you want to make in reply?
(Transcript, 29 March 2017, p 326 l 33 to p 328 l 15)
His Honour dealt with this issue in his reasons in the following terms:
9.The respondent’s affidavits were filed and served late, so there was some preliminary argument about her entitlement to rely upon them and whether an adjournment was needed. Orders were made enabling the respondent’s conditional reliance upon the affidavits (which conditions the respondent duly met) but, to eradicate any prejudice to the applicant, cross-examination of the respondent was postponed to afford the applicant more time to prepare for it. The parties did not require the publication of reasons for those procedural orders. The applicant’s renewed complaint during final submissions about the prejudice wrought upon him by those orders was a hollow din.
Having read the transcript, I agree with his Honour’s assessment. Apart from the four business days the appellant already had to obtain instructions, his counsel was not required to cross-examine until the second day of the trial and was permitted to continue the cross-examination on the third day of hearing. Thus there was an additional two evenings during the trial in which instructions could be taken. Contrary to what was originally asserted in the grounds of appeal, at no point was counsel denied a request for more time. For example, the following exchange occurred at the end of the second day:
HIS HONOUR: [Counsel for the applicant], it’s nearly 5 to 4 and you’ve been going for two and three-quarter hours. When are you likely to wind up?
[COUNSEL FOR THE APPLICANT]: I’ve probably got another half an hour. I wouldn’t mind, actually, a little bit of time to gather my thoughts, simply because of the way this has come about.
HIS HONOUR: Yes. Well, I guess that means you concede you can’t press your costs application against the respondent arising from events yesterday, given that the hearing has completely filled up the first two days and we’re going into the third.
[COUNSEL FOR THE APPLICANT]: Well, except, your Honour, that it has taken longer because of the- - -
HIS HONOUR: It doesn’t matter why; it has happened. You spent two hours on objections.
[COUNSEL FOR THE APPLICANT]: Well, it’s two hours spent on objections yesterday morning too, your Honour.
HIS HONOUR: Yes.
[COUNSEL FOR THE APPLICANT]: And I had expected to have some time yesterday afternoon - - -
HIS HONOUR: Well - - -
[COUNSEL FOR THE APPLICANT]: - - - but, of course, we didn’t – we sat till 4 o’clock.
HIS HONOUR: Yes. Well, I’m not criticising anyone. I’m just saying that, unexpectedly, we’ve used up two full days with the evidence and the objections and the order I made yesterday about reserving your costs for one day thrown away, I’m ruminating that you won’t be able to press that application, given that you’ve wasted no time. We’ve used up all of two days, haven’t we? Anyway, a matter for you to think about overnight. So what do you want to do? You’re proposing that we stop now and you have another half hour in the morning?
[COUNSEL FOR THE APPLICANT]: Can I just ask one more question - - -
HIS HONOUR: Sure.
[COUNSEL FOR THE APPLICANT]: - - - on this?
HIS HONOUR: Sure.
[COUNSEL FOR THE APPLICANT]: The only reason you mention the ATO in paragraph 38 is to try and suggest [Mr Na] had done something wrong, isn’t it?
THE INTERPRETER: Incorrect.
[COUNSEL FOR THE APPLICANT]: So you don’t suggest that [Mr Na] had done anything wrong?
THE INTERPRETER: I know nothing about ATO business. It’s what he was – what he told me that ATO was – they could – could investigate all these sort of things.
[COUNSEL FOR THE APPLICANT]: If that’s convenient, your Honour?
HIS HONOUR: Yes. [Ms Tiu], [counsel for the applicant] wants to cease her cross-examination of you early this afternoon, so you’re still in cross-examination. We will resume your cross-examination tomorrow morning at 10 o’clock, so please don’t speak to anybody about your evidence in the meantime. You will be right to attend tomorrow again, Mr Interpreter?
…
HIS HONOUR: All right. 10 o’clock. Thank you.
(Transcript, 28 March 2017, p 248 l 10 to p 249 l 41)

In my view, the appellant’s complaints about the process adopted by his Honour to overcome the prejudice to him came far too late: in the course of closing addresses, when the weaknesses in the appellant’s case were being exposed by the trial judge’s questioning.
As I perceive it, his Honour had three courses open to him in the face of the failure of both parties to comply with the directions for preparation of the matter for trial. He could have adjourned the proceedings as the respondent’s counsel proposed, but the appellant was firmly opposed to that course. His Honour could have rejected the late filed affidavits, although an issue might then have arisen as to whether his Honour ought to also reject the appellant’s affidavits since they too were filed late. However, his Honour would then clearly have permitted the respondent to rely upon the affidavits she had filed earlier in the proceedings. Nothing put to us in argument persuaded me that the appellant would have been any better off if that course had been followed.
These two alternatives not finding favour, the only viable alternative was the one his Honour adopted.
Statements made to his Honour by counsel for the appellant at the outset of the trial were such that his Honour was entitled to consider he had found a solution that satisfied both parties and cured the prejudice to the appellant. I am not persuaded there was any denial of procedural fairness. This is especially so in circumstances where the root cause of the problem seems to have been one of the appellant’s own making in failing to file his documents on time.
I consider this complaint therefore fails.

Ground 4 – error of law

By this ground it is asserted that (errors in original):
4. The Trial Judge erred in law in finding by implication at paragraphs 36 of his judgment that a de facto relationship within the meaning of Section 4AA Family Law Act 1975 must necessarily be “imbued with the bilateral dedication of the deeply emotional and financial kind intrinsic to de facto relationships” and as a consequence that the parties did not reside within a de facto relationship within the meaning of the act.
The ground arises from the following paragraph of his Honour’s reasons (footnote omitted):
36.As the applicant told the respondent, he indeed “devoted” himself to their relationship, but his devotion did not prove its quality. He wanted more from it than the respondent and, despite his ardent wish to believe otherwise, the relationship did not attain the quality of a de facto relationship. It was not imbued with the bilateral dedication of the deeply emotional and financial kind intrinsic to de facto relationships. For that reason, the applicant’s claim for declaratory relief fails.
Counsel for the appellant has sought to persuade us today that his Honour’s choice of language, and in particular his use of the word “imbued”, means that he impermissibly proceeded on the basis that it was essential to the existence of a de facto relationship that there be a “bilateral dedication” of the parties of the type identified at [36].
In order to provide context to this paragraph of his Honour’s reasons, it is important to record that counsel for the appellant properly eschewed any argument with any other paragraph of the reasons and accepted that his Honour had accurately stated earlier in his judgment the process by which he should proceed to determine whether the parties had lived in a de facto relationship.
Although the judgment must necessarily be read in its entirety, the following paragraphs of the reasons seem to be of such importance as to warrant recitation in full:
5.The Act prescribes, relevantly, that parties are in a de facto relationship while they are a “couple living together on a genuine domestic basis”, with due regard to all the circumstances of their relationship (s 4AA(1)). Such “circumstances” of their relationship “may” include those features identified by the Act (s 4AA(2)) but, while those features may guide the Court’s conclusion, none are either individually or collectively determinative (ss 4AA(3), 4AA(4)).
6.The making of a declaration about the existence of a de facto relationship under s 90RD of the Act does not involve the exercise of judicial discretion (see Jonah & White [2011] FamCA 221 at [39]). Rather, it is a factual determination and the applicant seeking the declaration bears the burden of proving, to the requisite civil standard, that a de facto relationship existed between the parties (see Owens & Benson [2014] FamCAFC 243 at [1], [28]). Moreover, the applicant bore the burden of proving all facts about the de facto relationship which are essential to the existence of the Court’s jurisdiction and the exercise of power under Part VIIIAB of the Act.
…
11.It was common ground the parties enjoyed a sexually intimate relationship for a number of years, which commenced in or about late 2005 and ended in early 2012, but they each perceived the relationship differently. The applicant honestly felt he and the respondent were a couple living together on a genuine domestic basis, whereas the respondent did not have the same degree of emotional investment in the relationship. She considered they were only boyfriend and girlfriend. The characterisation of the parties’ relationship must be determined objectively rather than subjectively (see Hayes v Marquis [2008] NSWCA 10 at [1], [70]), so their individual beliefs, regardless of how earnestly they held them, were of little moment. Nevertheless, the fervour of their perceptions was liable to colour their recollections.
…
14.The Act permits rather than obliges the consideration of various nominated features of a relationship to help determine its character (ss 4AA(1)(c),(2)), but the task of characterisation makes it is “necessary to consider the evidence as a whole, not under isolated headings” (see Hayes v Marquis at [1], [73]).
15.The parties’ marriages to other persons and their failure to ever cohabit in a single dwelling are material considerations, but not determinative of whether or not they were in a de facto relationship.
16.When the parties began their relationship, both were married. The applicant divorced in about October 2006, but the respondent remained married throughout. Their marriages do not preclude a finding that they were in a de facto relationship (s 4AA(5)(b)), but the respondent’s retention of her marriage is relevant because it helps contextualise her conduct towards the applicant.
It can be seen from these paragraphs that his Honour fully appreciated that no one factor, or combination of factors, was determinative of the issue before him. Having correctly set out the task confronting him, his Honour in my view then proceeded to perform it in an unexceptionable fashion.
Having carefully analysed the evidence the trial judge set out his conclusions in summary in the following paragraph (emphasis added):
35.In this case, as in most, the weight of the evidence was not all one way. Some aspects of the evidence tended to support the applicant’s contention that a de facto relationship existed: in particular, the sexuality of their relationship, the regularity of their personal interaction over some six years, their joint holidays, and the modest degree to which they used their own money for the benefit of the other. However, the preponderance of evidence did not support the applicant’s contention the parties lived together as a couple on a genuine domestic basis because, in summary:
(a)The respondent demanded secrecy about the sexual nature of the parties’ relationship from start to finish. It was not a case of her only being initially cautious about the public revelation of their association, since she insisted they conduct the relationship clandestinely throughout. Even when it ended, she sought and obtained orders from the NSW Supreme Court to suppress the publication of any information which would tend to publicly reveal the relationship. The relationship had no public notoriety. The parties had no mutual friends. They only displayed affection publicly when in the company of complete strangers, the husband’s adult son and his wife, or one other person they barely knew. The symbolism of the importance of their relationship, manifest in the mock marriage certificate, rings, and photographs, was artificial because such symbolism is usually intended for public display, but in this case it was kept private. Most likely, the respondent decided to indulge and appease the applicant’s desire for the trappings of permanence.
(b)The respondent maintained her relationship with her husband, to whom she was and still is married. Although their personal relationship may be enigmatic and difficult to define, they maintain relations on several different levels – sexual, domestic, and commercial. They still associate, with and without their children, in both Australia and China. They still jointly conduct their business in both Australia and China. The marriage is not an empty shell.
(c)The parties never shared a common household. They associated during daylight hours at their respective homes on occasions during the week, when they would not be disturbed by the respondent’s children. They only ever stayed overnight together when the children were not with the respondent, either because they were visiting their father and relatives in China during school holidays or they were away from the respondent’s home for some other unusual reason. The parties’ cohabitation was not precluded, either temporarily or frequently, by extraneous circumstances beyond their reasonable control, such as distant work commitments or involuntary detention. They did not live together because the respondent refused the applicant’s entreaties to do so. She did not want her children, husband, or family to know of her intimate personal relationship with the applicant. To the extent he was even known to them, the respondent insisted on introducing him merely as a colleague.
(d)At no stage of the relationship did the parties ever jointly acquire property and, although from time to time they each used their money for the benefit of the other, they did not combine their resources in a concerted effort to mutually improve their financial fortunes. It was notable how the parties’ investments and the respondent’s business interests remained segregated.
It is in this context that I consider we must seek to understand the remarks his Honour made at [36], and in particular the statement made in the final sentences. As can be seen from my recitation from the reasons, the two sentences upon which counsel for the appellant seized in her argument today followed a careful discussion by his Honour of the evidence, which in turn was followed by the summary at [35], which supported the conclusion that “the preponderance of evidence did not support the applicant’s contention the parties lived together as a couple on a genuine domestic basis”.
I am therefore satisfied on a fair reading of the judgment that the appellant’s claim did not, in fact, fail because the relationship was not “imbued with the bilateral dedication of the deeply emotional and financial kind intrinsic to de facto relationships”. Had his Honour purported to apply that as the test, I accept that he would have been in error, as it would have imposed an impermissible gloss on the words of the statute.
At all times it is important to keep in mind the statutory definition of “de facto relationship” in s 4AA(1) of the Act. The Full Court in Jonah & White (2012) FLC 93-522 said at 86,682:
… the touchstone for the determination of whether a de facto relationship exists is the finding that the parties to it are a “couple living together on a genuine domestic basis”.
In making that finding, the Court is required to have regard to all the circumstances of the relationship, including any or all of the circumstances set out in s 4AA(2) of the Act. The use of glosses such as “merged lives”, “coupledom”, or in this case “…imbued with the bilateral dedication of the deeply emotional and financial kind intrinsic to de facto relationships” are unhelpful because they tend to create a distraction from the basic task required by the statute (see Jonah & White (2012) FLC 93-522; Sinclair & Whittaker (2013) FLC 93-551; Cadman & Hallett (2014) FLC 93-603; Onslow & Onslow [2016] FamCAFC 7; Fleming & Schmidt [2017] FamCAFC 12; Sha & Cham [2017] FamCAFC 161; Cuan & Kostelac (2017) FLC 93-801).
As was observed by this Court in Sinclair & Whittaker (supra) at [94] in relation to such an “impermissible gloss” by a trial judge:
Comments made in the course of discussing facts are not to be elevated to the status of the provisions of the statute or substituted for the statutory test. This is because, taken on their own, they either add nothing to the statutory test or, if they do, they are adding an impermissible gloss. Thus it is not appropriate to consider the facts other than in the light of the statutory test.
However, in my view, what his Honour was doing at [36] was little more than harking back to what he had said about financial issues in [35(d)] of his summary and also to the point he had made about the parties’ subjective assessments of the level of their commitment at [11] where he said (emphasis added):
11.… The applicant honestly felt he and the respondent were a couple living together on a genuine domestic basis, whereas the respondent did not have the same degree of emotional investment in the relationship. She considered they were only boyfriend and girlfriend. The characterisation of the parties’ relationship must be determined objectively rather than subjectively (see Hayes v Marquis [2008] NSWCA 10 at [1], [70]), so their individual beliefs, regardless of how earnestly they held them, were of little moment. Nevertheless, the fervour of their perceptions was liable to colour their recollections.
Ultimately, the final decision in these cases inevitably involves a finding drawn from the overall impression created in the mind of the decision maker by the findings of fact. As Fitzgerald J said in Lynam v Director General of Social Security(1983) 52 ALR 128 at 131 (emphasis added):
… Each element of a relationship draws its colour and its significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.
I accept the respondent’s submission that his Honour had firmly in mind at all times the relevant statutory test, and that the ratio of his decision is to be found in the summary at [35] and in the earlier uncontested findings of fact.
This ground also fails.

Conclusion

There being no merit in any of the grounds that were pursued, I consider the appeal should be dismissed.

Kent J

I agree that the appeal should be dismissed and I agree with the reasons given by the presiding judge.

Watts J

I also agree that the appeal should be dismissed and I also agree with the reasons given by the presiding judge.

Thackray J

The formal order of the Court is therefore:
(1) That the appeal be dismissed.
The application now before the Court is that of the successful respondent for costs of the appeal. Counsel for the appellant has properly conceded not only that costs should be payable but they should be payable in the amended amount of $15,000 proposed by counsel for the respondent. The order of the Court is therefore:
(2) That the appellant contribute to the respondent’s costs fixed in the sum of $15,000.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Kent & Watts JJ) delivered on 15 December 2017.

Associate:

Date: 21 December 2017.