Onslow & Onslow
[2016] FamCAFC 7
•4 February 2016
FAMILY COURT OF AUSTRALIA
| ONSLOW & ONSLOW | [2016] FamCAFC 7 |
| FAMILY LAW – APPEAL – DE FACTO RELATIONSHIP – Where the trial judge declared that a de facto relationship existed between the parties between 1989 and 2009 – Where the trial judge made orders for property adjustment pursuant to finding that a de facto relationship existed between the parties – Where the appellant contends that the parties’ relationship ended in 2000 – Where the appellant challenges the factual underpinning of the trial judge’s conclusion that the relationship continued until 2009 – Where the appellant challenges the weight given to evidence by the trial judge – Where the appellant contends that the trial judge gave insufficient reasons for his findings – Where the appellant alleges that the respondent obtained social security benefits to which she was not entitled – Appeal dismissed. |
| Family Law Act 1975 (Cth) Part VIIIAB, ss 4AA, 117(2A) |
| Edwards v Noble (1971) 125 CLR 296 Fox v Percy (2003) 214 CLR 118 Gronow v Gronow (1979) 144 CLR 513 JJR v PH [2005] QSC 253 Sinclair & Whittaker (2013) FLC 93-551 |
| APPELLANT: | Mr Onslow |
| RESPONDENT: | Ms Onslow |
| FILE NUMBER: | CRC | 56 | of | 2011 |
| APPEAL NUMBER: | EA | 147 | of | 2013 |
| DATE DELIVERED: | 4 February 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace, Murphy & Austin JJ |
| HEARING DATE: | 18 August 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 24 September 2013 |
| LOWER COURT MNC: | [2013] FCCA 1434 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Jackson |
| SOLICITOR FOR THE APPELLANT: | Coastal Law & Conveyancing Pty Limited |
| COUNSEL FOR THE RESPONDENT: | Ms Carty |
| SOLICITOR FOR THE RESPONDENT: | Leckie Law |
Orders
The appeal against the orders of Judge Jarrett made on 24 September 2013 is dismissed.
The appellant is to pay the respondent’s costs of and incidental to the appeal, such costs to be agreed or assessed and to be paid within 28 days of such agreement or assessment.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Onslow & Onslow has been approved by the Chief Justice pursuant to
s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 147 of 2013
File Number: CRC 56 of 2011
| Mr Onslow |
Appellant
and
| Ms Onslow |
Respondent
REASONS FOR JUDGMENT
Ainslie-Wallace & Austin JJ
Mr Onslow (“the appellant”) appeals against property settlement orders made by Judge Jarrett of the Federal Circuit Court on 24 September 2013 in proceedings as between him and Ms Onslow (“the respondent”). As a condition precedent to the making of the orders for property adjustment,
his Honour declared that the parties were in a de facto relationship for the purposes of conferring jurisdiction pursuant to Part VIIIAB of the Family Law Act 1975 (Cth) (“the Act”). The making of the declaration is also challenged in the appeal.
The parties commenced their relationship in 1989 and it was agreed that between 1989 and 2000 they had been in a de facto relationship. The duration of the relationship was a matter of contention as the appellant asserted that it ended in 2000 whereas the respondent said that it concluded in 2009.
His Honour found in respect of this issue:
121. There is no doubt that there was a de facto relationship between the parties until at least 2000. The [appellant] submits that the question is when the relationship ceased. But in my view, that is the wrong question. The correct question is whether the de facto relationship broke down finally after 1 March, 2009. As the Full Court points out in Fenton (above), the de facto relationship might be characterised by numerous periods when it might be said that the de facto relationship has broken down. But what is important for the purposes of Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 is when it broke down finally.
122.Thus, [the appellant’s] submission that for [the respondent’s] contention that the relationship ended in 2009 “To be sustained the Applicant would have to demonstrate the existence of a de facto relationship until either June 2009 or late June 2009” is plainly incorrect. To approach the matter in that way would be to repeat the error identified by the Full Court in Fenton.
(Emphasis in original)
There is no challenge to his Honour’s articulation of the law or the test to be applied.
His Honour found at [156] that the parties’ de facto relationship broke down finally on or about 17 June 2009. Having so found, his Honour then proceeded to consider what property adjustment orders should be made. He found that the net assets of the parties or each of them amounted to $205,000 and the superannuation entitlements were $241,000 [159]. After analysing and assessing the parties’ various contributions, he concluded that there should be an adjustment in the respondent’s favour of 35 per cent of the current net value of the total asset pool available for division between the parties [174].
His Honour considered the future prospects of each party and concluded that the circumstances did not support making a further adjustment [183].
The Appeal
The Notice of Appeal contains twelve challenges to his Honour’s orders. With the respondent’s consent, leave was granted to the appellant to amend the grounds of appeal. Grounds 1 and 8 were significantly expanded and Grounds 2, 5, 6, 7, 11 and 12 were abandoned.
There is no appeal brought in relation to his Honour’s property orders. The sole challenge to his Honour’s orders is his finding that the court had jurisdiction to make the property orders sought. The grounds as advanced on the appeal challenge the factual underpinning of his Honour’s conclusion that the parties’ admitted de facto relationship finally broke down after
1 March 2009. Thus it is necessary to set out, albeit in brief form, the thrust of the factual findings on which his Honour relied in coming to the impugned determination.
From [12] onwards, his Honour considered the evidence of the parties and the witnesses called by each in support of his or her contentions. His Honour accepted “without reservation” the evidence of two witnesses called in
the respondent’s case, Mrs W and Mr B, both of whom gave evidence as to their observations of the parties. As to the two witnesses called on behalf of the appellant, Ms S and Ms J, his Honour found that Ms S’s evidence “does not assist the resolution of the present controversy” [111]. The evidence of Ms J, part of which his Honour set out at [112] and which was said to reflect an admission by the respondent against her own interests, was unchallenged in cross-examination and his Honour took it into account.
His Honour said that the appellant’s evidence left him with “a generally uneasy feeling” [14].
His Honour considered the evidence of each party in detail and the factual disputes between them. His Honour almost invariably accepted the evidence of the respondent where it conflicted with that of the appellant. His Honour concluded:
·The parties met in 1988 and commenced a relationship in June 1989 [16];
·There are four children of the parties’ relationship: X born in 1990, Y born in 1992, Z born in 1998 and W born in 1999;
·The respondent said that she had been for many years subject to significant family violence at the hands of the appellant including physical violence and threats of violence. His Honour accepted her evidence and found that on a number of the occasions when the respondent was assaulted by the appellant she was left with significant injuries. He rejected the claim by the appellant that the respondent was the instigator of violence [52]. His Honour found specifically in relation to one incident:
62. On or about 24 November 1998 [the appellant] beat [the respondent] with a golf club. He does not dispute the assault. Her ankles, left hand and the left side of her body were beaten. He also hit her in the head with the golf club. The evidence does not reveal more about the extent of her injuries, but she says, and I accept, that following the assault she could hardly walk. Her mother took her to a doctor and x-rays were performed. [The respondent] did not report the assault to the Police.
63. I accept that following the assault, [the appellant] taunted [the respondent] by telephoning her and saying words to the effect “Do you want to go golfing again? Do you want to go clubbing?”.
(Emphasis in original)
·The respondent had a significant drinking problem which affected her capacity to work and to care for the children. His Honour accepted that she used alcohol to make herself “feel better” and to cope with her relationship with the appellant [67]. The respondent has since developed insight into her drinking and its impacts on her life and has sought help for it [69];
·In October 2000 the respondent left the home she shared with the appellant after an episode of violence. At this time she sought and obtained a single mother’s pension. Three weeks later she returned to live with the appellant. His Honour rejected her contention that she “forgot” to notify Centrelink and found that it was more likely that she used the money as a source of funds to support her drinking [70];
·In 2000 the appellant left the premises he shared with the respondent and the children. His Honour rejected the appellant’s evidence that from this point, the parties’ sexual relationship ended and accepted the respondent’s evidence who said that it continued until 2009 [72]. After he left, the appellant continued to provide some financial support for the respondent and the children in making mortgage payments on the property in which they were living [73];
·In 2004 the appellant moved to Sydney to work leaving the children in the care of the respondent [76]. His Honour found that the appellant returned to the property occupied by the respondent and the children “more frequently than once per month”. His Honour accepted that the respondent and the appellant had frequent telephone contact [77];
·
In relation to whether a de facto relationship existed at this time,
his Honour found:
79. In his affidavit filed on 12 May 2012, [the appellant] swears the issue by suggesting that “I did not have a domestic relationship or de facto relationship with [the respondent] after that time. I did go to the house to check on the children. I had severed all other ties with [the respondent].” I reject his evidence and the conclusions expressed in those sentences. Whilst [the appellant] had moved away to Sydney, his relationship with [the respondent] remained. They no longer lived in the same accommodation, but he still exerted his control and influence over her life in the ways in which he had managed to do so before 2000. Neither party repartnered until [the appellant] took up with his present partner in mid-2009. [The appellant’s] and [the respondent’s] relationship marked out as it was his control and intimidation continued after 2000.
(Emphasis in original)
·In mid-2005 the children were removed from the care of the respondent by the Department of Communities and the children were placed in the care of their maternal grandmother [82];
·Between August 2005 and December 2006 the appellant lived on the New South Wales North Coast and the respondent lived in Queensland. The respondent would travel to the New South Wales North Coast and spend weeks at a time with the appellant who during this period also travelled to Queensland. The appellant gave the respondent money and she gave him money from her pension [87];
·Although the Department of Communities had placed the children in the care of the maternal grandmother, the appellant devised a plan to enable them to be returned to his care. His Honour found:
88.… I accept that [the appellant] said words to the effect: “I will get the kids back into my care and you can look after them. I will get Child Safety to assess me. They have nothing on me.”
89. [The appellant] later told [the respondent] “Child Safety says that as long as we don’t live together the kids can be with me. So we’ll get them to come down to [the New South Wales North Coast] and live with me. You stay up there until the house is rented and then come down here. We will have to pretend that you are not living with us. You can rent a one bedroom unit or a caravan down here for $130.00 a week and pretend to live there so they don’t take the kids off us again.”
·Consistent with these findings, his Honour accepted that the children moved to the New South Wales North Coast to live with the appellant, that the respondent remained behind and organised to move the house contents to the New South Wales North Coast and that she also moved there in December 2006 where she initially lived with the appellant and then in leased accommodation [91]-[92];
·The respondent continued to receive Centrelink benefits;
·The rental of separate accommodation was part of a joint plan to enable the parties to continue their relationship and to allow the respondent to look after the children [93];
·
The arrangement continued into 2007 with the parties continuing, as
his Honour described, “living as a family, albeit in a dysfunctional arrangement…” [97];
·His Honour found:
100. I accept [the respondent’s] evidence that despite her battles with alcohol which she accepts affected her ability to care for the children, she provided more or less full time care for them for the period from late 2006 until June, 2009. She looked after them before and after school. I accept that she cooked and cleaned and did the washing for the family. She did the shopping for the family. I accept [the respondent’s] evidence that [the appellant] and [the respondent] continued their sexual relationship.
·Two witnesses called in the respondent’s case both supported her account. In January 2007 the respondent obtained work with a local business. Mr B, a co-worker, gave evidence that he regularly dropped the respondent at the home occupied by the appellant and the children [98]. Further, Mrs W, who lived next door to the house in which the appellant and the children lived, said that she saw the appellant and the respondent living there together [102]. This evidence of both witnesses was accepted by the trial judge;
·His Honour accepted that the appellant pretended to his work colleagues that he and the respondent had been separated for a long time [110];
·In 1995 the parties jointly purchased land in Brisbane and a house was built on that land. The cost of the house and land was funded by borrowings by the parties [39];
·In 2000 the appellant moved out of that property and the respondent and the children remained living there. The appellant continued to meet the mortgage on the property [71] and [73];
·In 2006, at the appellant’s request, the respondent transferred her interest in the Brisbane property to the appellant because he contended that he had agreed to allow her to live there on the condition that she paid the rates and electricity costs which she had failed to do [83];
·His Honour found:
84. …To impose a requirement upon [the respondent] that her occupation of the property, a property that she was otherwise entitled to occupy as a matter of law, be subject to her meeting [the appellant’s] share of the rates was just another example of the way in which he sought to control her. It was consistent with the nature of their relationship.
·As to the date on which the relationship finally broke down, his Honour said:
116. The parties had the 20th anniversary of their relationship on 17 June 2009. I accept [the respondent’s] evidence that [the appellant] gave her a gold, diamond and sapphire bracelet as an anniversary present. I reject his evidence that he purchased that item from eBay as an investment with a view to resale and that [the respondent], or [the child], stole it from him.
117. [The respondent] says, however, that soon after their anniversary, she discovered that [the appellant] was seeing another woman. She resolved to leave him and did so.
Grounds 1A to 1H
Ground 1 and its sub-grounds challenge his Honour’s findings and further assert that his Honour failed to give adequate reasons for his findings.
The bar to appellate intervention in relation to facts found by a trial judge is set high indeed. In Edwards v Noble (1971) 125 CLR 296, Barwick CJ said at 304:
The question is not whether the appellate court can substitute its view of the facts which, of course, it is empowered to do: but whether it should do so. In any appeal against a finding of fact, whether or not by way of rehearing, however much the appellate court may be in an equal position with the trial judge as to the drawing of inferences, in my opinion, the appellate court ought not to reverse the finding of fact unless it is convinced that it is wrong. If that finding is a view reasonably open on the evidence, it is not enough in my opinion to warrant its reversal that the appellate court would not have been prepared on that evidence to make the same finding.
It must also be observed that his Honour carefully and painstakingly considered the evidence and the controversies and resolved them based on the evidence. Secondly, as his reasons indicate, there was objective support for much of the evidence of the respondent, a matter clearly taken into account by his Honour in his reasons.
Ground 1A
This ground asserts:
That the Court erred in failing to provide adequate reasons why it preferred the [respondent’s] version over the [appellant’s] in respect to the parties having engaged in sexual relations on and/or after 1st March 2009.
However, during argument on the ground, it was recast by counsel for the appellant to assert that his Honour erred in making that finding because it had insufficient evidentiary foundation. It was however accepted that there was evidence from the respondent on this point. Indeed, the trial judge’s reason for the making of the impugned finding was that he accepted the respondent’s evidence in preference to the appellant’s evidence on the point at [100] and [140]. In her affidavit she said that up until her separation from the appellant in June 2009, she and he continued their “sexual relationship and their relationship as a couple”. In cross-examination, it was suggested to the respondent that there had been no sexual relationship with the appellant since 2000 which she denied, but agreed that there was little detail in her affidavit because she did not think it necessary to “go through every detail.” Further, during re-examination, the respondent was asked:
MS CARTY: And it was put to you that there was only one occasion after 2000 that you had a sexual relationship with [the appellant], and you said that that was not correct?---No
Please tell the court what sexual relationship you had with [the appellant], if any, between 2000 and 2009? --- Intimate relationship with [the appellant].
Yes and by intimate, what do you mean?---Sexual, as well as family. Being a unit. We were a unit.
Well, are you able to tell the court on how many occasions you would have had been (sic) intimate with [the appellant] in that nine years?---Many.
(Transcript 16 May 2012, p. 55, line 33)
Counsel argued that the evidence was insufficient to entitle his Honour to find at [72] that the sexual relationship between the parties continued until 2009 because the respondent’s evidence was deficient in detail. Taken in consideration with his Honour’s findings generally that the respondent’s evidence was to be preferred to that of the appellant, we are not satisfied that this ground is made out. There was sufficient evidence on which his Honour could make that finding.
Grounds 1B and 1C
Ground 1B asserts that his Honour erred in finding “that the parties were engaged in co-parenting of the children, on and/or after 1st March 2009, when the evidence did not support such a finding”. Ground 1C asserts that
his Honour erred “in not providing reasons to support the parties were engaged in co-parenting the children, on and/or after 1st March 2009, when the evidence did not support such a finding.”
During the argument, counsel for the appellant refined the challenge to be that his Honour erred in finding that “on or after 1 March the parties were engaged in co-parenting.” (Transcript 18 August 2015, p. 20, line 10.)
We first observe that his Honour made no such finding. He found:
100. I accept [the respondent’s] evidence that despite her battles with alcohol which she accepts affected her ability to care for the children, she provided more or less full time care for them for the period from late 2006 until June, 2009. She looked after them before and after school…
It was argued that it was not open to his Honour to make that finding merely because he accepted the evidence of the respondent over that of the appellant. It was suggested that the only evidence on which his Honour could have based this finding was the assertion by the respondent in her affidavit that she had the full time care of the children.
In cross-examination, the appellant’s evidence was that whilst he was working full-time, he required and organised assistance with the care of the children via community network services and before and after school care (Transcript
16 May 2012, p. 66, line 25; Transcript 1 November 2012, p. 42, line 3).
We note however, that the respondent’s evidence was that “mostly I provided full time care for [the children] for the period from late 2006 until [the appellant] and I separated in [the New South Wales North Coast] in June 2009.” (Wife’s affidavit filed 15 June 2012, paragraph 29.)
Further, there was cross-examination of the respondent about the circumstances in which she moved to the New South Wales North Coast. She said that she moved to the New South Wales North Coast in December 2006. She was asked:
MR PRIESTLY: Why did it take you three months when your children have left and, you say, de facto partner has left – why did it take three months to get a train ?---He said to me that it was when I could come done (sic).
(Transcript 16 May 2012, p. 27, line 7)
There was sufficient evidence on which his Honour could make the impugned finding and we do not find this challenge made out. As to the appellant’s complaint about there being insufficient reasons to support the finding, we refer again to the trial judge’s reasons at [100] where his Honour states that he accepts the respondent’s evidence in preference to the appellant’s on the issue of co-parenting the children. These challenges are thus not made out.
Grounds 1D to 1F
Ground 1D challenges his Honour’s finding that “the parties were engaged in a scheme to deceive several organisations relevant to the [respondent’s] stated places of residence, when there was inadequate evidence to support such a finding”. Ground 1E contends that his Honour failed to give adequate reasons for making that finding and Ground 1F asserts that his Honour erred in finding that the parties’ motivation for engaging in the “scheme” was a mutual wish that the children be cared for by the respondent.
His Honour’s finding on this point were as follows:
88.I accept [the respondent’s] evidence that in early 2006, [the appellant] came up with a plan to get the children back into their care. I accept that [the appellant] said words to the effect: “I will get the kids back into my care and you can look after them. I will get Child Safety to assess me. They have nothing on me.”
…
94.I am satisfied that both he and [the respondent] were concerned to ensure that the child protection authorities in Queensland did not become aware that it was likely that they were living together again.
…
97.In about January, 2007 [the appellant] purchased a property at [A Street, New South Wales North Coast] in his sole name. The family moved to live in those premises. At the same time, [the respondent] rented alternative properties to maintain the ruse that she and [the appellant] were no longer in a relationship…
…
150. … Her case is, and I have found, that the parties embarked upon a plan to disguise where it was that [the respondent] was living. The provision of addresses other than [the appellant’s] [New South Wales North Coast] address to government agencies and the police is entirely consistent with that plan.
The thrust of Ground 1D was that there was insufficient evidence on which his Honour could find that the appellant was part of any attempt to disguise where the respondent was living. Ground 1E challenges his Honour’s findings as to the reason why the respondent gave a false address as her place of residence.
We reject both contentions.
It was common ground during the hearing before his Honour that the respondent had, from time to time, given various addresses for where she was living.
The respondent gave evidence on this point in her affidavit filed on
16 March 2011 first at paragraph 44, where she said that from about
December 2006 she and the appellant and the children lived together first in M Street, New South Wales North Coast and then at A Street, New South Wales North Coast and again at paragraph 47 when she said that the appellant forced her to rent property in her sole name so it would appear that they were not living together. The respondent elaborated on this evidence in a subsequent affidavit filed on 15 June 2012 at paragraphs 21 and 22 in which she set out the conversation with the appellant in which the plan was devised. His Honour accepted that this conversation occurred and incorporated it into his reasons at [88] and [89].
In cross-examination the respondent said that the intention was to not let anyone know she and the appellant were living together or the children would be “retained”. The examination continued:
MR PRIESTLY: So the reason that you had these false addresses then was because you wanted to trick DoCS? --- I didn’t want to trick anybody. That was not my decision. That was [the appellant’s] decision, to play it like this.
It was [the appellant’s] decision. So [the appellant] wanted to trick DoCS, he didn’t do it for the money?---I can’t comment on what [the appellant] thinks or does.
Well, you were part of it. What was your understanding?---My understanding was to let DoCS know that the children were being minded by solely [the appellant] (sic).
So it had nothing to do with getting social security payments you weren’t entitled to?---No.
(Transcript 16 May 2012, p. 39, line 36)
The respondent further gave evidence of the type of accommodation rented in her name, in particular that one flat had no proper bed but only a sofa, a matter she said was consistent with the ruse of her not living with the appellant.
His Honour also had before him the evidence of Mrs W, the next door neighbour to the house at A Street. Mrs W’s evidence was that the respondent and the appellant and the children lived together at A Street for two years until the respondent left. She observed the respondent hanging out washing, cleaning the swimming pool and tending the garden. She recalled being invited by the respondent to a party for the appellant’s birthday in August 2007.
His Honour accepted this evidence (Mrs W’s affidavit filed 30 September 2011).
His Honour, in accepting that evidence and in accepting the evidence of
the respondent, rejected the appellant’s denials of any knowledge of the plan to conceal where the respondent was living. He was entitled to do so based on the evidence before him. He was further entitled to find that the plan to conceal the respondent’s address was a joint plan.
Clearly, having accepted the respondent’s account of why she and the appellant provided a false address for her, his Honour was further entitled to find that the reason was as the respondent said: so that she could care for the children. There was evidence sufficient to support both of these findings and we reject the contended error.
As to the suggestion that his Honour failed to give adequate reasons for that finding, we reject it. His Honour discussed the evidence between [90] and [102], which sets the basis for his conclusions expressed at [100].
Finally, although it does not fall entirely within any of the asserted grounds, it seems that it was also contended that his Honour erred in finding the respondent’s evidence to be credit worthy following his acceptance of her evidence that she had given false addresses to various government agencies. It seems that the argument is that, having accepted this evidence, his Honour ought to have consequently rejected all of the respondent’s evidence on the basis that she was not credit worthy.
We reject this if it was asserted as a general proposition and indeed as a proposition specifically in this case. A trial judge is entitled to accept the entirety of a witness’ evidence or accept part and reject part if the judge forms the view that overall the witness was one on whose credit he or she could comfortably rely. That is the essence of the fact finding function of a judge. Indeed in the course of his reasons, his Honour did reject some of the respondent’s evidence.
In Fox v Percy (2003) 214 CLR 118, in relation to findings of fact that affect the credibility of a witness, Gleeson CJ, Gummow and Kirby JJ said at 128:
… [T]he mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.
That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being “incontrovertible”, an appellate conclusion may be reached that the decision at trial is “glaringly improbable” or “contrary to compelling inferences” in the case . In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process.
Ground 1G
No oral submissions were addressed to this ground which asserts that
his Honour failed to give sufficient weight to the absence of evidence of financial interdependence between the parties from February 2009; of joint ownership of property or the acquisition of property; no finding that there was a mutual commitment to a shared life and an absence of findings about the reputational and public aspects of the relationship.
There was, in fact, evidence from both parties about financial interdependence that existed between them. The respondent said that she handed over some of her benefit payments to the appellant and the appellant himself said that he paid for the mortgage and outgoings on the Brisbane property while the respondent and the children were living there. His Honour made findings that between 2000 and at least February 2009, the respondent was financially dependent on the appellant [134].
His Honour said:
153. [The appellant] further submits that “… many of the attributes normally associated with a de facto marriage are missing, such as common residence and intermingling of finance.” I agree with that submission as far as it goes. However [the appellant’s] submission pays no regard to the nature and extent of the dysfunctional relationship that existed between he and [the respondent] since 1989. To the extent that his submission suggests that the Court ought to look for indicia such as a commitment to shared goals and aspirations, mutual trust and respect and a supportive environment in which those things might be realised, as best as I can tell from the evidence, those indicia where (sic) never present in his relationship with [the respondent].
154.[The appellant] submits that since he ceased living on a full-time basis at [the Brisbane property] in 2000 “there was no use and acquisition of property by them and the only property they owned was transferred to the Respondent”. However, in my view that submission is factually incorrect. There was use by the parties together of property and in particular, [the Brisbane property]. In 2000 it was in the joint legal ownership of the parties. [The respondent] had just as much right to reside in the premises rent free as [the appellant] did. He had no legal right to insist that the occupation of the property be subject that to a condition imposed by him that she meet payment of the rates and electricity. His actions in that regard are yet another indicator of the power and control that he asserted over [the respondent]. The jointly owned property was used by the parties to house their children.
As to the last two contentions, namely there was an absence of any finding that there was a degree of mutual commitment to a shared life and the absence of findings about the reputational and public aspects of the relationship, we reject their foundation. The evidence of the respondent was of “being a unit” and the evidence of Mrs W and Mr B spoke to the public aspects of the relationship. In any event, this challenge devolves to an argument about the weight or importance his Honour attached to the evidence before him.
The apportionment of weight or importance to evidence is exquisitely the preserve of the trial judge. To successfully challenge the weight attributed to evidence, it is necessary to demonstrate that the decision is “plainly wrong” (see Gronow v Gronow (1979) 144 CLR 513 at 519).
The appellant has failed to establish that and this part of Ground 1 is not made out.
Ground 1H
As with Ground 1G, Ground 1H was not the subject of oral argument but was not expressly abandoned in the written submissions. Ground 1H asserts:
The Court erred in making a finding that the [respondent] performed the “cooking and cleaning, and doing the washing for the family” from “late 2006 until June 2009.”
Again, this challenge can be dealt with by having regard to his Honour’s acceptance of the respondent’s evidence and that of the witnesses who gave evidence on her behalf, which he set out between [90] and [102]. We need not repeat what we have said about the high bar to appellate intervention in relation to findings of fact. There was a clear evidentiary basis on which he drew his conclusion and this challenge cannot be sustained.
None of the challenges engaged under Ground 1 has been made out.
Grounds 3 and 4
These two grounds relate to an Apprehended Violence Order made on
12 March 2009 in favour of the appellant against the respondent. Ground 3 asserts:
In finding that the parties were engaged in a de facto relationship after 1 March 2009, the Court erred in not [giving] sufficient weight to the existence of an Apprehended Violence Order made against the Respondent for the protection of the [appellant].
Ground 4 asserts:
The Court erred in misinterpreting the terms of an Apprehended Violence Order.
Turning to Ground 4, the terms of the Order prevented the respondent approaching the appellant or the property in which he was living within 12 hours of consuming alcohol. His Honour referred to the Order and rejected the submission that it operated to prevent the respondent living with the appellant. Clearly, his Honour was correct. Ground 4 therefore fails as the trial judge correctly interpreted the Order.
It was then argued that, because the Order disclosed the parties to be living at different addresses on the New South Wales North Coast, it was proof the parties were not living together. Regardless of the addresses the parties then chose to reveal to the State court, the Order was not made until 12 March 2009 and so it was no proof at all that their de facto relationship had finally broken down on or before 1 March 2009, being the critical date for existence of the trial judge’s jurisdiction to entertain their property settlement dispute.
Accordingly, the contention that the trial judge failed to give sufficient weight to the Order in the determination of the existence of jurisdiction was misconceived because it carried no probative value in respect of that particular issue, so Ground 3 must also fail.
Even if the weight argument could have been advanced, we need not repeat what has been previously said about challenges to the weight given by a trial judge to evidence. Suffice it to say that nothing put to us persuades us that
his Honour’s determination is wrong. These grounds have not been made out.
Ground 8, 8A and 8B
These three grounds relate to the respondent’s receipt of a Newstart Allowance at the same time as she asserted that she and the appellant were in a de facto relationship.
Ground 8 contends that “the Court erred in not finding that the [respondent] had sought Social Security benefits that she was not entitled to.”
Ground 8A contends that his Honour erred in failing to give sufficient weight to “… declarations to the Commonwealth of Australia that had the effect of stating that on 1st March 2009 and until 17th June 2009, she was not in a de facto relationship.”
Ground 8B is couched in the alternative to Ground 8A and asserts that his Honour failed to “… apply the maxim ex turpi causa non oritur action in relation to the [the respondent’s] false declarations to the Commonwealth Department of Social Security, and consequently the [respondent] should not have benefited by way of a property orders (sic) made in her favour…”
Counsel for the appellant submitted that the thrust of the grounds was that the evidence of receipt of social security benefits by the respondent demonstrated that she was lying to the court about being in a de facto relationship with the appellant. It was submitted:
MR JACKSON: … I am saying, however, that she comes to the court and says, “We’re in a de facto relationship”. The impact of that would be then that she must have been lying to authorities, if the court is to accept that version that they were in a de facto relationship, because in my submission, she would have had to have truthfully told the Department that she was in a de facto relationship and she wouldn’t have received Newstart Allowance.
(Transcript 18 August 2015, p. 38, lines 33-38)
However, during the argument on the appeal, the focus of the ground appeared to shift to the credit of the respondent, specifically that she had made representations to the relevant department which were inconsistent with her assertions made to the court about the nature and duration of the relationship with the appellant (Transcript 18 August 2015, p. 39, line 20).
It was uncontentious before the trial judge that the respondent applied for and received a Newstart Allowance from 2005 until 2009.
The argument articulated on the appeal was, it seems, that the respondent asserted she was in a de facto relationship with the appellant but that she nevertheless obtained a Newstart Allowance to which she was not in fact entitled.
The basis of her lack of entitlement was said to lie in her answers in cross-examination, that is, it was said that she admitted she knew that she was not entitled to receive the benefits she obtained.
His Honour said on this point:
126.… Whilst [the respondent] may have been in receipt of social security benefits at that time [after 2005], I am not satisfied that the fact that she, or she and [the appellant] may have connived to defraud the revenue, if indeed that is what they did, is determinative of the nature and the extent of their relationship at that time.
His Honour further said:
142.… It is not implausible that [the respondent] would seek to receive social security benefits when at least, at first glance, it may appear that she was not entitled to receive those benefits. I say “at first glance” because there was no real attempt made in this case to establish that [the respondent] was not entitled to receive the social security benefits that she in fact received. She was cross-examined about that issue.
His Honour commented that the respondent’s evidence on this point was “confused and confusing” and was not helped by counsel putting inaccurate questions to her regarding her earlier evidence [143]. His Honour commented that the cross-examination of the respondent was “… apt to, and I am satisfied did, confuse [the respondent] such that her answers on this point are not particularly reliable” [144] and set out an example of such questioning by counsel for the appellant:
145. Whilst it is correct to say that on occasions [the respondent] admitted that she may not have been entitled to receive the allowances and pensions that she received, it is also correct to point out that she said that she had kept Centrelink informed of her situation and she nonetheless continued to receive benefits.
146. In any event, there was no attempt to otherwise demonstrate, by reference to evidence or the relevant statutory provisions, that [the respondent] was not entitled to the various benefits received by her during December, 2005 – June, 2006 (or some later date) even if she was in a de facto relationship with [the appellant]…
Of course, we add that even had the respondent’s admission been regarded as having some force, it of itself does not establish the propounded underlying fact, namely that she was not in fact entitled to the benefits obtained.
There was no evidence before the court that her declarations to the relevant department were false.
No attempt was made to produce to the court the declarations made by
the respondent in seeking the benefits, nor to demonstrate by reference to legislation or regulation the fact sought to be advanced, namely that if she was in a de facto relationship as defined by the Act, then she was not entitled to receive any benefit. Thus, in those circumstances, we are of the view that no submission, whether as to the respondent’s credibility or the legitimacy of her conduct, can be made.
These grounds will fail.
Grounds 9 and 10
These grounds concern the weight accorded to the evidence of the parties’ witnesses.
Ground 9 contends that his Honour gave too much weight to the evidence of Mrs W and Mr B. Ground 10 asserts that his Honour failed to give sufficient weight to the evidence of Ms J in determining the issue of whether the parties’ de facto relationship finally broke down after 1 March 2009.
We have already referred to the considerable difficulty facing a challenge to the apportionment of weight to evidence by a trial judge. In this case, his Honour accepted the evidence of Mrs W and Mr B as being supportive of the respondent’s assertion of a continuing relationship with the appellant. Nothing put to the court persuades us that his Honour was not entirely correct to do so.
Turning then to the evidence of Ms J, after objection had been taken to the affidavit sworn by her in support of the appellant’s case and the objectionable material excised, very little remained. His Honour referred to her evidence, noting that the appellant relied on a statement apparently made to her by
the respondent which, it was said, was an admission against interest. The statement was that the respondent said: “[the appellant] and I haven’t been together for a long time … [the appellant] and I split not long after [1999]” [112].
His Honour said in respect of this statement:
113. Without the context in which the above conversation occurred it is difficult to know what to make of that evidence. But it was not challenged in cross-examination and I take it into account.
It is also relevant to note that when objections were being taken to Ms J’s affidavit, the so called “admission” was objected to on the basis that the allegation had not been put to the respondent in cross-examination.
His Honour noted that the failure to put the “admission” to the respondent in cross-examination went to the weight given to that evidence. His Honour was clearly correct and while he took Ms J’s evidence into account, he was entitled to give it little weight as it appears he did.
These grounds are not made out.
The appeal will thus be dismissed.
Costs
As is customary, we took the parties’ submissions on the costs of the appeal at the conclusion of the hearing to save them the time, trouble and expense of returning to make those submissions once the appeal had been determined.
The question of costs in relation to an appeal is governed by the provisions of
s 117 of the Act. Section 117(2A) provides the matters to which a court must have regard if considering making an order for costs against one party to the appeal. In this case, the relevant matter is that the appeal has been wholly unsuccessful.
Counsel for the appellant fairly conceded that if the appeal failed, there should be an order for costs in the respondent’s favour.
We agree that in the result it is appropriate to make an order that the appellant pay the respondent’s costs of and incidental to the appeal.
MURPHY J
I agree with Ainslie-Wallace and Austin JJ that the appeal should be dismissed.
Ground 1 as initially pleaded asserted:
In finding that the parties were engaged in a de facto relationship after 1 March 2009, the Court failed to properly consider the evidence associated with each of the relevant factors as set out in section 4DD(2)[1] (sic) of the Family Law Act 1975 (Cth).
[1] Properly, s 4AA(2) of the Act.
That ground was amended to include sub-grounds – effectively particulars – that referred to eight matters, all of which can be seen to refer to specific circumstances listed within s 4AA(2) of the Act:
·Whether a sexual relationship exists (s 4AA(2)(c));
·The care and support of children (s 4AA(2)(h));
·Whether the parties were engaged in a scheme to deceive government agencies (which might pertain to a number of specific circumstances within s 4AA including the nature and extent of the parties’ common residence (s 4AA(2)(b));
·The degree of financial independence or arrangements for financial support (s 4AA(2)(d)); or
·The degree of mutual commitment to a shared life (s 4AA(2)(f)).
The apparently separate challenge contained in ground 1G asserts that insufficient weight was given to the specific s 4AA(2) circumstances there specified. Included is an assertion that “insufficient weight” was given to “the absence of any findings about the reputation and public aspects of the relationship” (s 4AA(2)(i)).
To the extent that the appeal rests on a fact-by-fact challenge to his Honour’s findings in respect of the s 4AA(2) circumstances referred to, or alluded to, in the grounds, I agree with Ainslie-Wallace and Austin JJ’s reasons for rejecting those challenges. I also agree with their Honours’ comments about the challenge based on his Honour’s attribution of weight and their rejection of those challenges. I also agree that his Honour’s reasons were more than adequate to explain the conclusions which his Honour reached.
The grounds and arguments in support of them evidence, in my view, a misapprehension of the task which confronted his Honour. That misapprehension is evident, for example, in the weight challenge based on the absence of a finding about a specific s 4AA(2) circumstance and also from a contention in the appellant’s written outline of argument, at paragraph 3, that his Honour erred by reason of:
… an insufficient application … in following such a necessary pathway involving a consideration of the evidence associated with each of the relevant s 4AA(2) factors, to a point where the Court could reach a conclusion on the balance of probabilities that there was a de facto relationship in existence on and/or from 1 March 2009.
(Emphasis added)
Those respective contentions, and the appellant’s challenge generally, misapprehend the provisions of the Act by which a court might determine the existence of a de facto relationship and also misapprehend the task which confronted his Honour.
It was common ground before his Honour that a de facto relationship existed between 1989 and, at least, 2000. That agreed position does not involve an implicit admission or concession that any one of, or any group of, or all of, the circumstances listed in s 4AA(2) existed or were manifest in the parties’ de facto relationship. The admission of the existence of the de facto relationship for a minimum of 11 years involved no more than an admission or a concession that, relevantly, the parties had a relationship as a couple living together on a genuine domestic basis.[2] It is that matter (together with the requirements contained in s 4AA(1)(a) and (b) which are not relevant here) which, if proved or admitted, establishes that the parties were in a de facto relationship.
[2]It also involved an admission that the parties were not legally married to each other and were not related by family (s 4AA(1)(a) and (b) of the Act).
Where that is in doubt, the court is charged with deciding, relevantly, whether (either at all or at a relevant time or times) the parties had a “relationship as a couple” who were “living together on a genuine domestic basis”. In undertaking that task, the court is obliged to consider all of the circumstances pertaining to the relationship. Section 4AA(2) lists circumstances that may be included in that enquiry. The use of the permissive “may” is important.
The proper approach and relevant principles were examined by this Court in Sinclair & Whittaker,[3] an important decision in the context of this appeal to which neither counsel referred. What was said there bears repeating and, in my view, effectively answers the appellant’s challenges:
[3] (2013) FLC 93-551.
51.In coming to the view that a couple had a relationship as a couple living together on a genuine domestic basis the court is to have regard to all of the circumstances of their relationship. Those circumstances may include those specified in ss 4AA(2).
52.Sub-section 4AA(3) highlights that no particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the subject persons have a de facto relationship.
53.Sub-section 4AA(4) provides:
A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
54.Thus, whether or not a de facto relationship, as defined, exists will depend upon an assessment of all of the circumstances of the relationship, each to be given the weight the court thinks appropriate.
55.In Lynam v Director-General of Social Security (1983) 52 ALR 128 at 131 said:
Each element of a relationship draws its colour and its significance from the other elements, some of which may point at 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.
Sub-section 4AA(4) quoted by their Honours in the passage above is of particular importance in answering the central thrust of the appellant’s arguments, as is what this Court in Sinclair went on to say:
56.Many of the submissions put by the appellant in the appeal sought to place significant, if not determinative weight, on particular circumstances. Absent the identification of an error on the part of the trial Judge it is difficult for such submissions to succeed. Merely because another judge may have weighed the circumstances differently does not, of itself, demonstrate error.
The trial judge here appears to have recognised these very issues in saying that “some of the relevant facts that might assist the court to reach its conclusion … are set out in s 4AA(2)”.[4]
[4] Reasons [6], my emphasis.
One additional matter should, in my view, be mentioned.
His Honour was, with respect, correct in positing the question before him as whether the admitted de facto relationship broke down finally after
1 March 2009.[5]
[5]Reasons [9] ff; [156] where the word “finally” was emphasised. See Fenton & Marvel (2013) FLC 93-550 at, for example, [12]-[13] and [53]-[54].
The question of whether an admitted pre-existing de facto relationship broke down finally after 1 March 2009 is a question answered by elements different to those applicable to deciding if the relationship has ever existed. In the latter, an essentially objective analysis is applied to the circumstances established by evidence (which may be informed by reference to the essentially objective circumstances listed in s 4AA(2)). In the former, the circumstances that might inform objectively a decision about the existence of a relationship are replaced, or at least augmented, by the subjective circumstances of that particular relationship which is admitted to have existed as the defined type. Put another way, the question is not whether a de facto relationship was in existence at the relevant time or times; the question is whether this particular relationship continued to exist at that time or times.
Particular circumstances might be afforded significantly less or more weight depending on whether the question is whether a de facto relationship exists as compared to when the question is whether a particular relationship with its historical characteristics continues to exist. The “endless scope” which might attend the question of whether a particular relationship is a de facto relationship has been circumscribed by the circumstances which are established (in this case over a minimum of 11 years) as shaping this particular relationship which is established as having been a de facto relationship.
I see that distinction as having considerable importance in this appeal. The analysis by the appellant and the premises for many of the challenges to
his Honour’s findings, in my view ignore, or significantly underplay, the consideration of the particular indicia of the admitted relationship in determining whether that particular relationship had broken down finally after 1 March 2009.
The parties living in separate residences after 2000 (including for at least some of the time, in residences with a significant geographical separation), statements made to obtain social security benefits, the manifestation of asserted separate addresses when, after 2000, the parties lived again in the same town, and the number and duration of separations are examples of circumstances that may have had significant weight in pointing to the absence of a de facto relationship when none was admitted to exist.
However, the volatile, dysfunctional and chaotic nature of this admitted relationship which spanned a minimum of 11 years gave those events, in the period after 2000, a different complexion (as his Honour found) when the issue was whether that particular relationship had broken down finally. In assessing whether an admitted pre-existing relationship had broken down finally “an unsatisfying, often unhappy de facto relationship” ought not to be confused “with an absence of one”.[6]
[6] Respectfully adapting Byrne J in JJR v PH [2005] QSC 253, at [29].
His Honour was, in my view, very much alive to precisely these considerations as is evident in a number of findings made by him. For example:
133.That [the appellant] would obtain protection orders against [the respondent] is consistent, in my view with the nature of the parties’ relationship in this case. That is to say, it is consistent with his control and domination of her during the course of their relationship. It my view the obtaining of the protection orders was nothing more than a tool used by him to control and intimidate her.
…
141.In his submissions, [the appellant] suggests that much of [the respondent’s] evidence concerning her allegations of domestic violence is irrelevant. In my view, however, those allegations are relevant to demonstrate the nature and extent of the parties’ relationship. This clearly was a relationship where, as [the respondent] says there was “a serious power imbalance”. She is correct when she says that her relationship with [the appellant] “was very dysfunctional for a long period of time. [The appellant] was controlling and manipulative.”
142.Against that background then, it is not implausible (as [the appellant] would have me find) that [the respondent] would maintain alternate addresses in [the New South Wales North Coast] whilst at the same time spending most of her days at his address caring for their children and otherwise performing domestic duties. It is not implausible that [the respondent] would seek to receive social security benefits when at least, at first glance, it may appear that she was not entitled to receive those benefits. I say “at first glance” because there was no real attempt made in this case to establish that [the respondent] was not entitled to receive the social security benefits that she in fact received. She was cross-examined about that issue.
…
150.Further, [the appellant] suggests that the admissions made by [the respondent] in her cross-examination that she had provided false addresses to the Australian Taxation Office, to the New South Wales Police Service and to other organisations demonstrated generally that her evidence was unreliable. [The appellant] suggested in submissions that her evidence about those matters was entirely consistent with his case (that she was living elsewhere) and entirely inconsistent with hers. That submission, however, misapprehends [the respondent’s] case in a serious way. Her case is, and I have found, that the parties embarked upon a plan to disguise where it was that [the respondent] was living. The provision of addresses other than [the appellant’s] [New South Wales North Coast] address to government agencies and the police is entirely consistent with that plan.
(Italics in original; bold emphasis added)
Importantly, those findings are succeeded by this finding by his Honour:
153.[The appellant] further submits that “… many of the attributes normally associated with a de facto marriage are missing, such as common residence and intermingling of finance.” I agree with that submission as far as it goes. However [the appellant’s] submission pays no regard to the nature and extent of the dysfunctional relationship that existed between he and [the respondent] since 1989. To the extent that his submission suggests that the Court ought to look for indicia such as a commitment to shared goals and aspirations, mutual trust and respect and a supportive environment in which those things might be realised, as best as I can tell from the evidence, those indicia where (sic) never present in his relationship with [the respondent].
(Italics in original; bold emphasis added)
It was precisely these sorts of considerations that underpinned a significant finding by his Honour which is that the nomination by the respondent of separate residences once she began living in the same town as the appellant were as a result of a ruse designed to have the Department place the parties’ children back into the care of the respondent from whom they had been taken by that Department.
No appealable error is in my view established.
Costs
I agree that the appellant being “wholly unsuccessful” in this appeal is, in all of the circumstances of this case, a circumstance justifying the court from departing from what is prescribed in s 117(1) of the Act. I agree with the order proposed in that respect.
I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Murphy & Austin JJ) delivered on 4 February 2016.
Associate:
Date: 4 February 2016
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