Owens & Benson
[2014] FamCAFC 243
•22 December 2014
FAMILY COURT OF AUSTRALIA
| OWENS & BENSON | [2014] FamCAFC 243 |
| FAMILY LAW – APPEAL – LEAVE TO APPEAL – AMENDED NOTICE OF APPEAL – DECLARATON OF DE FACTO RELATIONSHIP – Where the trial judge found that the parties were in a de facto relationship – Where the appellant submits that the trial judge’s findings were erroneous and not open on the evidence – Where the evidence between the parties was largely disparate – Consideration of the principles in Briginshaw v Briginshaw (1938) 60 CLR 336 – Where the appellant submits that the adverse credit findings made by the trial judge were not reasonably open – Where the assessment of credit of the parties was open to the trial judge – Where the appellant asserts the trial judge erred in failing to draw a Jones v Dunkel (1959) 101 CLR 298 inference – Where the trial judge referred to ample corroborative evidence in relation to the findings made – Where no error demonstrated – Leave to appeal granted – Appeal dismissed. FAMILY LAW – APPEAL – COSTS – Where the appeal was wholly unsuccessful – Where the appellant conceded costs if the appeal failed – Appellant pay respondent’s costs of the appeal. |
| Evidence Act 1995 (Cth) s 140 Family Law Regulations 1984 (Cth) reg 15A(1) |
| Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Briginshaw v Briginshaw (1938) 60 CLR 336 Johnson & Page (2007) FLC 93-344 Jones v Dunkel (1959) 101 CLR 298 Kuhl v Zurich Financial Services Ltd (2011) 243 CLR 361 McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8 Qantas Airways Ltd v Gama (2008) 167 FCR 537 Rutherford & Rutherford (1991) FLC 92-255 Tobin v Ezekiel (2012) 83 NSWLR 757 |
| APPELLANT: | Ms Owens |
| RESPONDENT: | Mr Benson |
| FILE NUMBER: | SYC | 1552 | of | 2011 |
| APPEAL NUMBER: | EA | 114 | of | 2013 |
| DATE DELIVERED: | 22 December 2014 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Finn, Strickland & Austin JJ |
| HEARING DATE: | 27 November 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 19 July 2013 |
| LOWER COURT MNC: | [2013] FCCA 871 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Wilson SC |
| SOLICITOR FOR THE APPELLANT: | Blackstone Waterhouse Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Millar |
| SOLICITOR FOR THE RESPONDENT: | Etheringtons Solicitors |
Orders
Leave is granted to appeal against the declaration made on 19 July 2013.
The appeal is dismissed.
The appellant shall pay the respondent’s costs of and incidental to the appeal on a party/party basis in the sum agreed or assessed in default of agreement.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Owens & Benson 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 114 of 2013
File Number: SYC 1552 of 2011
| Ms Owens |
Appellant
And
| Mr Benson |
Respondent
REASONS FOR JUDGMENT
Finn and Strickland JJ
We agree with the orders proposed by Austin J. We also agree with his Honour's reasons save that we are not necessarily persuaded that the application of s 140(2) of the Evidence Act 1995 (Cth) was not enlivened in relation to the issue of the jurisdictional fact as to whether the de facto relationship in this case existed beyond 1 March 2009. However, we will not say more about this question because we do not consider it essential to the determination of the appeal.
Austin J
On 19 July 2013, Judge Walker declared, pursuant to s 90RD of the Family Law Act 1975 (Cth) (“the Act”), that a de facto relationship existed between the parties to this appeal from January 2005 until January 2010.
Her Honour was required to determine the discrete preliminary issues about the duration of the de facto relationship and the time at which it ended because the existence of jurisdiction needed to be established before the parties’ substantive dispute for property settlement pursuant to Part VIIIAB of the Act could be heard and determined. Relevantly for the purposes of this appeal, the Court had no jurisdiction if the de facto relationship broke down before 1 March 2009.
By Notice of Appeal filed on 15 August 2013, the appellant (who was the respondent at first instance) sought leave to appeal against the declaration and, should such leave be granted, to prosecute her appeal. The appellant ultimately moved on her Amended Notice of Appeal filed on 5 December 2013.
The appellant contended the parties’ de facto relationship broke down well before 1 March 2009, thereby depriving the Court of jurisdiction to determine the property settlement dispute, and the trial judge was in error to find otherwise.
The appellant should be granted leave to appeal, but her appeal should be dismissed.
Short history
The parties met in or about 2001, though their relationship did not develop until several years afterwards when their respective marriages ended.
In 2005 the parties jointly purchased real property in NSW in which they began to cohabit.
During 2006 the appellant suspected the respondent of infidelity and their relationship became strained. Although the appellant asserted at trial that their de facto relationship ended at about that time, it is common ground the parties continued to live in the same home until it was later sold in September 2007.
Only a month later, in October 2007, the appellant purchased in her sole name another property in South Australia. After its purchase, the parties travelled to South Australia together. Several weeks later the appellant returned to live in Sydney, but the respondent and the appellant’s three dogs remained in occupation of the new property.
In May 2008, the appellant returned to live in the South Australian property with the respondent, her elderly father and her dogs. The appellant disavowed any resumption of the de facto relationship and contended the parties merely commenced sharing the same household.
The respondent, however, asserted their de facto relationship was uninterrupted and finally ended in January 2010 when he vacated the South Australian property.
Reasons for judgment
The trial judge began by reciting the chronology of events summarised above (at [4]-[21]), which crystallised the essential dispute between the parties: whether the de facto relationship ended in July 2006, as the appellant asserted, or in January 2010, as the respondent asserted (at [22]).
The trial judge correctly identified the relevant legislative provisions that would guide the decision she was enjoined to make (at [31]-[32]). Thereafter, the trial judge meticulously evaluated the evidence adduced by the parties to address the legislative considerations (at [33]-[175]), which led her Honour to the conclusion expressed in these terms (at [177]): “…the court finds that the parties lived together in a de facto relationship from January 2005 to January 2010”.
That finding led to the declaration which is now the subject of the appeal.
The evidence adduced by the parties was largely irreconcilable. The trial judge was alive to the existence of many factual anomalies that affected the reliability of both parties’ evidence. Relevantly for present purposes, those anomalies included a letter apparently sent by the respondent to the Child Support Agency (“CSA”) in April 2007 which tended to corroborate the continuity of the parties’ relationship; another letter apparently sent by the respondent to the CSA in May 2008 which tended to contradict his assertion about the continuity of the parties’ relationship; the unreliability of the respondent’s mother’s evidence as corroboration; the unreliability of the parties’ own evidence in some respects; the corroboration afforded to the respondent’s evidence in some material respects by financial and telephonic records; and the corroboration of the respondent’s evidence and the contradiction of the appellant’s evidence by Ms A, a former friend of the appellant, whose evidence was accepted by the Court.
After pronouncing the finding about the parties’ de facto relationship, the trial judge embarked upon a supplementary examination of the existence of jurisdiction by reference to the parties’ geographical locations (at [178]-[186]), but that was not germane to the appeal and so it is unnecessary to consider that aspect of the trial judge’s decision.
Leave to appeal
Since the appellant’s intended appeal related to an interlocutory decree, the appellant recognised the need for the grant of leave so as to permit prosecution of her appeal (s 94AA of the Act; r 15A(1) of the Family Law Regulations 1984 (Cth)).
The principles governing the grant of leave to appeal against interlocutory orders are well known (see Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177; Rutherford & Rutherford (1991) FLC 92-255 at 78,715).
Significantly, although interlocutory in nature, the declaration made by the trial judge affected the substantive rights of the parties; it invested the Court with jurisdiction to determine the broader property settlement dispute, which jurisdiction the appellant denied the Court possessed. The declaration was not merely procedural in nature.
Any interlocutory decree reflecting a trial judge’s finding about a jurisdictional fact should inevitably attract the grant of leave to appeal. Sensibly, the respondent did not even seek to be heard to the contrary.
Grounds of appeal
The appellant articulated only two grounds of appeal, though there were numerous aspects to both.
The appellant contended the trial judge’s finding that the parties’ de facto relationship existed on 1 March 2009 was both erroneous (Ground 1) and not reasonably open (Ground 2). The various reasons asserted by the appellant for that contention overlapped and, to avoid duplication, can conveniently be addressed according to the issues rather than the grounds of appeal under which they appear. At the commencement of the hearing of the appeal, senior counsel for the appellant acknowledged the correct identification of the various issues distilled from the grounds of appeal and the written argument.
Before turning to address the contentious issues, it is necessary to address the following passage in the appellant’s written submissions, which stated:
Pivotal to this challenge are the onus of proof, and the standard of proof. …the onus of establishing that there was a de facto relationship after May 2008 remained with the respondent, and involved more than a “mere tipping” of the balance of probabilities (Briginshaw v Briginshaw (1938) 60 CLR 336).
(Original emphasis)
Much of the appeal appeared to be mistakenly predicated on the proposition that the civil standard of proof the respondent was required to meet was the level of satisfaction of which the High Court spoke in Briginshaw v Briginshaw (1938) 60 CLR 336.
The standard of proof applicable in the first instance proceedings was, of course, that provided by s 140 of the Evidence Act 1995 (Cth). The common law principles discussed in Briginshaw are now embedded within s 140(2) of the Evidence Act and should now be discussed in that statutory context (see Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [61]; Johnson & Page (2007) FLC 93-344 at 81,890 – 81,891; Qantas Airways Ltd v Gama (2008) 167 FCR 537at 576-577).
Section 140(2) of the Evidence Act envisages that the degree of proof required in civil proceedings may vary, depending upon the nature of the issues at stake.
The issue in dispute between the parties before the trial judge was whether or not their de facto relationship subsisted up to at least 1 March 2009. The respondent (who was then the applicant) bore the burden of proving it did. The appellant (who was then the respondent) carried no burden of proof.
However, the respondent only needed to discharge his burden on the balance of probabilities. The ultimate issues about when the de facto relationship ended and for how long it endured were not issues of such nature or gravity as to enliven application of s 140(2) of the Evidence Act. The provisions of
s 140(1) of the Evidence Act capably accommodated the issues at hand and the evidence adduced by the parties in respect of those issues. The trial judge was clearly cognisant of that.
Respondent’s letter dated 30 May 2008 to the CSA
This issue encapsulates Grounds 1(a) and 2(e).
The appellant contended the trial judge fell into error by the manner in which her Honour integrated into the ultimate finding the evidence about the letter dated 30 May 2008 sent to the CSA.
It was uncontentious, as the trial judge found (at [129]), that the contents of the letter informed the CSA that the respondent was no longer in a relationship with the appellant. The appellant was described as the respondent’s “ex-partner” in the letter.
It was also uncontentious that, at or about the time the letter was prepared and sent, the parties were living in the same home in South Australia. As the trial judge accepted (at [124]), the appellant moved from Sydney to live in the South Australian property with the respondent during May 2008.
The respondent finally asserted at trial, as the trial judge recognised (at [27]), that the de facto relationship subsisted up until January 2010 without interruption. Therefore, the letter sent to the CSA in May 2008 asserting the relationship had ended directly contradicted his case. Necessarily, either his assertion at trial was false or the contrary assertion to the Child Support Agency was false. It had to be one or the other.
The trial judge found both parties were involved in the preparation of that letter, although the evidence did not permit any finding as to precisely what part each party played, and they both had an interest in representing that their relationship had ended so as to restrict the respondent’s child support liability in respect of his children from a former relationship (at [83]-[85], [129]-[130], [163]). Although those factual findings were not plainly revealed by either the grounds of appeal or the appellant’s written argument to be contentious, they were challenged during oral argument.
The appellant asserted the letter to the CSA was truthful and accurate in all respects and corroborated her case that in May 2008 the parties’ de facto relationship had ended. Of course, she could not validly maintain such a submission in the face of an unimpeached finding that she was complicit in misrepresenting the state of the parties’ relationship in that letter. Recognition of that fact presumably prompted the appellant’s belated challenge to the finding implicating her in the preparation of the letter.
The appellant submitted the trial judge erred by finding she was complicit in the preparation of the letter to the CSA because the finding hinged entirely upon acceptance of the respondent's uncorroborated evidence to that effect, and her Honour had determined (at [58]) “there would be a risk in placing too much weight on the [respondent’s] uncorroborated evidence”.
That reasoning is comprehensively answered in two ways. First, her Honour only determined there would be a “risk” in relying too heavily on the respondent’s uncorroborated evidence; not that it would be impossible or improper to do so. Secondly, her Honour found the appellant was no more reliable than the respondent and, since her evidence refuting involvement in preparation of the letter was also uncorroborated, her evidence need not have been preferred. The appellant’s submission sprang from an unstated, but wrong, assumption that her evidence should have been preferred. It could have been, but it was not, and that decision was eminently open to the trial judge.
The appellant argued orally at the appeal that the trial judge erred by not applying the Briginshaw principles to the evidence which led her Honour to find the appellant was complicit in the compilation of the letter to the CSA misrepresenting the nature of their relationship, since the finding attributed deceitful conduct to the appellant. Significantly, the appellant was impelled to concede she made no submission to the trial judge about such an obligation.
As the argument was debated on appeal, the complaint was pared down to the failure of the respondent’s counsel to put directly to the appellant in cross-examination, for her express approbation or rejection, the proposition she willingly misrepresented the facts to the CSA. The argument is rejected. The appellant was confronted in cross-examination with the respondent’s version of the facts in relation to the compilation of the letter, which she staunchly rejected. No more was required.
The trial judge did not accept the appellant’s evidence on that point. The finding about her complicity in preparation of the letter was but one piece of evidence that affected the ultimate finding about the duration and termination of the parties’ de facto relationship. No more and no less. The trial judge was conscious throughout of the civil standard of proof, which her Honour demonstrated by couching findings in terms of probability and likelihood (such as at [85], [86], [128], [130], [158], [162], [167]). Her Honour made no error.
The appellant expressly abandoned another submission, contained within her written argument, that the respondent was estopped by his representation to the CSA from conducting a contrary case in this litigation. Such abandonment was commendable because the submission was without merit.
Given the findings of the trial judge that are either unchallenged or resistant to challenge, the most that can be said about the evidence on this issue is that the respondent made a deliberately false statement to the CSA in May 2008 about the state of the parties’ relationship. He said the relationship was at an end when it was not and his misrepresentation was motivated by a desire to reduce his child support liability.
That fact should, and indeed did, make a significant difference to the trial judge’s assessment of the respondent’s credit as a witness, but the respondent’s lie should not be, and was properly not, singularly determinative of the dispute between the parties. That is so because there was an abundance of other evidence that affected the critical determination about when the parties’ relationship ended.
It should not be imputed from such observations that courts may lightly dismiss the mendacity of parties and witnesses. Quite the contrary; but there are limits to how the mendacity can be legitimately put to forensic use.
Even when a witness lies about some matter, the lie does not prove the opposite of the lie. Ordinarily, the fact of the lie only indicates consciousness that the truth about the subject issue would not have assisted the liar’s case (see Tobin v Ezekiel (2012) 83 NSWLR 757 at 775; Kuhl v Zurich Financial Services Ltd (2011) 243 CLR 361 at 385).
These grounds of appeal fail.
Findings in respect of the parties’ credit
This issue encapsulates Grounds 1(b), 2(a), and 2(b).
The appellant’s contention on this issue was twofold.
Her first contention was muddled. In Ground 1(b) she alleged the trial judge wrongly failed to make adverse findings about the respondent, but then in Grounds 2(a) and 2(b) acknowledged numerous adverse findings were made in respect of the respondent’s credibility, which findings were reasonably open.
Her second contention, contained within Ground 1(b), was that the trial judge wrongly made adverse findings against her, which contained an implicit assertion that such adverse findings were not open.
The appellant asserted those errors led the trial judge to erroneously accept the respondent successfully established the parties’ de facto relationship existed until January 2010.
The trial judge found the credibility of both parties wanting and expressed her finding to that effect many times over. Her Honour expressed her ultimate conclusion about the parties’ veracity in these ways:
…the court finds that both parties at times have tailored their evidence to suit their respective cases. … (at [143])
and:
…the court finds it difficult to prefer the evidence of one party over the other (at [163])
The appellant’s credit was specifically impugned in relation to many factual conflicts, including: the time at which the de facto relationship commenced (at [81]); the letters written to the CSA (at [83]-[85], [105], [130], [163]); the circumstances of the contemporaneous sale of the NSW property and purchase of the South Australian property (at [114], [169]); the parties’ trip to Melbourne together in December 2006 (at [102]-[103]); her minimisation of her interaction with the respondent between October 2007 and May 2008 (at [118]); the operation of a joint banking account (at [128]); and the nature of her relationship with the independent witness, Ms A (at [150]-[151]).
Similarly, the respondent’s credit was specifically impugned on the same and other issues, including: the letters written to the CSA (at [58], [129], [130], [158], [163]); information he published about himself on a website (at [58]); and his financial circumstances (at [128]).
The adverse credit findings made against both parties were well open to the trial judge and, contrary to the appellant’s submissions, were satisfactorily explained by the trial judge.
The appellant submitted that while she does not accept the correctness of the credit findings against her, she accepted it would be “problematic” for her to challenge them.
However, the appellant went on to submit the credit findings against her were “benign and speculative” without deigning to explain why or how. Such a bare proposition should be rejected.
The appellant submitted the respondent’s lack of credit must necessarily have precluded his ability to establish the parties’ de facto relationship subsisted beyond 1 March 2009, but that proposition cannot be correct.
Impeachment of a witness’ credit on one issue does not necessarily impeach the witness’ credit on all issues. The court is at liberty to accept all, some, or none of the evidence given by a witness (see McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8 at 9; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155), provided of course the acceptance and rejection is adequately explained, as it was in this case.
As the appellant correctly acknowledged in her written submissions, with the respondent’s own credibility impeached, he “needed to look elsewhere if he was to discharge the onus of proof which he bore”. Independent evidence can always fill the gap created by the impeachment of a party’s credit, as it properly did in this case, as will shortly be seen.
These grounds of appeal fail.
Acceptance of an independent witness’ evidence
This issue encapsulates part of Ground 1(c)
The appellant asserted the trial judge’s incorrect conclusion about subsistence of the de facto relationship beyond 1 March 2009 was based upon the erroneous acceptance of the evidence given by Ms A, whose evidence tended to corroborate the respondent’s evidence and contradict her evidence.
In support of that ground, the appellant argued the respondent was so lacking in credibility that, even giving all weight reasonably due to the evidence of Ms A, it could not result in the respondent discharging his onus of establishing the de facto relationship subsisted beyond 1 March 2009.
As already explained, the trial judge found each party lacked as much credibility as the other. Axiomatically, if the respondent was to succeed in proving the jurisdictional facts, other reliable evidence was required. The trial judge found it, but not just in Ms A, though her evidence was important.
For example, without attempting to be exhaustive, the trial judge found the following pieces of evidence influential:
(a)The respondent’s tax records disclosing his address as the appellant’s address in 2004 (at [80]);
(b)Admissions made by the appellant about the parties regularly sleeping together from at least January 2005 (at [72]);
(c)The parties opening a joint bank account together in 2005 (at [73], [76]);
(d)Bank records that demonstrated the respondent’s financial contribution to the purchase of real property in 2005 (at [75], [79]);
(e)Bank records addressed to both parties at the same address in 2005 (at [78]);
(f)Bank records evidencing use of the sale proceeds from one property to reduce the mortgage debt on another in 2006 (at [92]);
(g)Payment of the respondent’s lump sum emoluments on termination of his employment into a joint account of the parties in 2006 (at [99]);
(h)The letter written to the CSA on 19 April 2007 confirming the parties’ ongoing relationship at that time (at [104]-[105], [131]);
(i)The purchase of the South Australian property with funds drawn from the parties’ joint bank account in October 2007 (at [116]);
(j)The parties’ maintenance of a joint bank account, into which the respondent’s salary was paid, even when the respondent lived in South Australia and the appellant in NSW in the period between October 2007 and May 2008 (at [110], [123], [126]-[127]);
(k)Telephone records demonstrating the parties stayed in daily telephonic contact between October 2007 and May 2008 (at [120]-[122], [162]);
(l)The respondent’s withdrawal of money, with the appellant’s consent, from a line of credit in February 2008 to buy a car (at [128]); and
(m)Credit card statements that showed the appellant held a supplementary card on the respondent’s credit account from January 2009 (at [125]).
The oral evidence of Ms A simply added to the weight of that evidence. Ms A, as recognised by the trial judge, gave evidence that corroborated the respondent’s evidence and contradicted the appellant’s evidence. Significantly, she deposed that the parties socialised with her as a couple during 2009, the parties stayed together in her apartment in Melbourne in 2009, and in January 2010 the appellant said to her “[the respondent] and I have split up after seven years”. As would be obvious, that evidence cut a swathe through the appellant’s case.
Ms A was challenged in cross-examination but she tenaciously adhered to her evidence. In final submissions the appellant referred to her as a “biased witness”, but there was no rational basis for the trial judge to so conclude. The friendship between the appellant and Ms A had soured, but that did not occur until the end of 2010. The trial judge found Ms A to be a credible witness, as it was open for her Honour to find.
Even though the appellant did not challenge the finding that Ms A was a credible witness, she asserted in her written argument that the trial judge “did not explain why Ms [A’s] evidence was accepted”. Not only did her Honour do so, it was done fastidiously and methodically. The trial judge summarised the evidence given by Ms A, compared it with the pertinent evidence given by the appellant, and then reconciled the factual conflict between them in favour of Ms A for expressly stated reasons (at [136]-[151], [164]-[167], [175]).
Otherwise, the appellant’s submission concerning Ms A was limited to the trial judge placing “inappropriate weight” on her evidence, but she did not elaborate that submission, other than to assert Ms A “discussed the evidence she would give at trial” with the respondent. That accusation was false, as advertence to the transcript reveals.
During her cross-examination the following evidence was elicited:
[Counsel for appellant]: You have been in contact from time to time with [the respondent] over the last few years, have you?
[Ms A]: Not really so much myself, but my partner.
[Counsel for appellant]: Have you been in some contact with him, discussed matters with him?
[Ms A]: With some – limited contact.
[Counsel for appellant]: And he has told you his version of events regarding his relationship with [the appellant], has he?
[Ms A]: Yes.
[Counsel for appellant]: And you believe what he has told you?
[Ms A]: I guess, yes.
[Counsel for appellant]: You have, to put it bluntly, an intense dislike for [the appellant], don’t you?
[Ms A]: I don’t actually, no.
[Counsel for appellant]: I see?
[Ms A]: Not at all.
(Transcript 11 April 2013: page 78, line 45 – page 79, line 12)
The only concessions made by Ms A were that she had had “limited contact” with the respondent, during which he had related to her “his version of events regarding his relationship with [the appellant]”. Since Ms A was well acquainted with both parties, it would be highly surprising if such discussion had not occurred during ordinary social intercourse between Ms A and the respondent. Ms A admitted she accepted the truth of the respondent’s version, as it was related to her. Self-evidently, that situation is far removed from the submission that Ms A discussed with the respondent “the evidence she would give at trial”, which was shrill exaggeration.
This ground of appeal must fail.
Failure to draw a Jones v Dunkel inference
This issue encapsulates part of Ground 1(c).
The appellant asserted the trial judge erroneously failed to draw inferences in accordance with Jones v Dunkel (1959) 101 CLR 298 in relation to the respondent’s failure to adduce evidence from Mr B in support of his case, which failure was unexplained.
It is pertinent to observe that, even if an inference of the type contemplated by Jones v Dunkel is available and drawn, the inference only entitles the court to take the unexplained failure into account in deciding whether to more readily accept any other evidence bearing upon the fact in issue; not to infer that the uncalled evidence would in fact have been damaging or adverse to the party (see Kuhl v Zurich Financial Services Ltd at 385).
The appellant’s submission in this instance was particularly audacious because, first, she did not cross-examine the respondent at all about the accuracy of the evidence he adduced in chief pertinent to Mr B; secondly, she did not challenge the respondent about why he chose not to call Mr B as a witness in his case; and thirdly, she did not ask the trial judge during final submissions to draw any Jones v Dunkel inference on the point. It is bold to criticise a trial judge for an omission to do that for which the party does not even ask.
The appellant asserted in Ground 1(c) that the failure of the trial judge to draw the Jones v Dunkel inference influenced her Honour to erroneously find the parties’ de facto relationship subsisted beyond 1 March 2009, but that is simply not so. The trial judge correctly acknowledged the parties gave different versions about whether they attended a social engagement as a couple with
Mr B in mid 2009 (at [134], [139]), but that particular conflict in the evidence was not thereafter mentioned. It played no role in the ultimate determination about when the parties’ relationship broke down.
The trial judge made no error, and even if her Honour did, it made no difference to the result. This ground of appeal fails.
Absence of reliable corroboration of the respondent’s evidence
This issue encapsulates Grounds 2(c) and 2(g).
The appellant contended there was an absence of reliable evidence corroborating the respondent’s evidence, and the evidence the trial judge did regard as corroborative of the respondent’s evidence was, at best, equivocal.
The conclusive answer to that contention is to simply refer to the summary of corroborative evidence identified at paragraphs [67] and [68] herein, all of which was adequately explained by the trial judge. There was a surfeit of evidence to corroborate the case conducted at trial by the appellant. Undoubtedly the appellant was dissatisfied with the factual findings made by the trial judge, but she fell far short of demonstrating those findings were not reasonably open to the trial judge.
The appellant conceded in her written argument that the trial judge conducted a “careful and comprehensive review of the evidence”. So she did.
These grounds of appeal fail.
Existence of circumstantial evidence corroborating the appellant’s evidence
This issue encapsulates Grounds 2(d) and 2(f)
The appellant contended some “circumstantial evidence” was consistent with the appellant’s version of the parties’ relationship after May 2008 and inconsistent with the respondent’s version, and furthermore, some of the respondent’s own evidence corroborated the appellant’s evidence.
This aspect of the appeal remained a mystery from start to finish. No such “circumstantial evidence” was ever identified. Apart from an opaque reference to these grounds in a single short paragraph of the appellant’s written argument, they were not otherwise addressed orally or in writing.
The only evidence of the respondent that was said to corroborate the appellant’s evidence was the letter dated 30 May 2008 he sent to the CSA, which issue has already been addressed. But in any event, that letter was not “the respondent’s own evidence”, as the grounds of appeal asserted. The letter was adduced in evidence by the appellant and was therefore her evidence about a historical event that implicated the respondent. She was the one who relied upon that evidence to prove either an admission or prior inconsistent statement made by the respondent. The respondent did not purport to rely upon it as probative. He in fact attempted to distance himself from it.
In the absence of further useful elucidation these grounds must fail.
Conclusion and costs
Given that there is no merit in any of the grounds of appeal the appeal must be dismissed.
At the conclusion of submissions on costs the appellant conceded costs should follow the event if the appeal failed. The appellant must therefore pay the respondent’s costs of and incidental to the appeal.
It was not submitted the costs should be payable on other than a party/party basis or that costs should not be as assessed in default of agreement. The orders should so provide.
I certify that the preceding ninety three (93) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Finn, Strickland & Austin JJ) delivered on 22 December 2014.
Associate: S. Hesling
Date: 22 December 2014
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