PATCH & RABADI
[2020] FCCA 689
•25 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PATCH & RABADI | [2020] FCCA 689 |
| Catchwords: FAMILY LAW – Application for discovery – existence of de facto relationship in dispute – definition of de facto relationship – were parties living together on a genuine domestic basis – burden of proof – documents sought to be produced to determine the existence of de facto relationship – considerations of relevance – matters to be considered. |
| Legislation: Evidence Act 1995 (Cth), ss.55, 56, 140 Family Law Act 1975 (Cth), ss.4AA, 90RD Federal Circuit Court of Australia Act 1999 (Cth), ss.3, 42, 45, 81 Federal Circuit Court Rules 2001 (Cth), rr.1.05, 14.02, 15A.17 |
| Cases cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 Corporation of the City Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 Harrington-Smith v Western Australia (2003) 130 FCR 424 Jonah v White (2012) 45 Fam LR 460 Moby & Schulter (2010) FLC 93-447 Rana v University of South Australia (2004) 136 FCR 344 Shelley & Markhov [2012] FCWA 68 Taisha v Peng (2013) 48 Fam LR 150 |
| Applicant: | MS PATCH |
| Respondent: | MR RABADI |
| File Number: | ADC 1492 of 2019 |
| Judgment of: | Judge Brown |
| Hearing date: | 13 March 2020 |
| Date of Last Submission: | 13 March 2020 |
| Delivered at: | Adelaide |
| Delivered on: | 25 March 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Roberts |
| Solicitors for the Applicant: | Comley Legal |
| Counsel for the Respondent: | Ms Tinning |
| Solicitors for the Respondent: | Norman Waterhouse |
ORDERS
That the Applicant mother do, no later than 8 April 2020, hereof provide discovery of and produce copies of the following documents:
(a)Taxation returns, PAYG certificates and Notices of Assessment for the financial years ended 30 June 2014 to 30 June 2019 inclusive;
(b)All employment contracts or letters, emails or other memoranda relating to the terms of employment between 1 July 2013 and 1 July 2018;
(c)In respect to the Applicant’s home at Suburb A:
(i)copy of contract of sale and purchase;
(ii)settlement statement;
(iii)copy application for finance and/or documents associated with the same;
(iv)statements in respect to the mortgage account for the period 1 July 2013 to the current date;
(v)all other documents relating to any application to subdivide the same including but not limited to applications to council, draft development plans, surveyors plans and any correspondence to and from any council, surveyor or financial institution in respect to the same.
(d)Her Will;
(e)All correspondence to and from Centrelink including any letters, memoranda or the like relating to her receipt of Centrelink benefits during the period 1 July 2017 to the current date;
(f)Application to the Department of Human Services for the Respondent Mr Rabadi to be assessed for child support made in or about August 2017;
(g)Copy Medicare card or cards for the period 1 January 2013 to the current date;
(h)All bank statements relating to all bank accounts operated by her in her sole name or jointly with any other person including credit card accounts, business accounts for the period 1 June 2014 to the current date;
(i)Copy telephone accounts in respect to all mobile and landline accounts in her sole name or jointly with any other person for the period 1 June 2014 to the current date;
(j)All documents relating to the alleged assault which occurred on or about 2 January 2015 including but not limited to statements to the police and all letters, memoranda or other documents relating to the withdrawal of assault charges against Mr Rabadi and the finalisation of the intervention order which occurred on or about 2 February 2015;
(k)Copy of Resume and/or applications for employment and any responses thereto made in the period 1 January 2014 to the current date;
(l)Superannuation benefit statements including nominated beneficiaries for the financial years ended 30 June 2014 to the current date.
The Applicant do provide, no later than 8 April 2020, to the Respondent’s solicitors:
(a)The names, addresses and contact details of:
(i)The Applicant’s general medical provider;
(ii)The provider of prenatal classes;
(iii)The child X’s current family day care provider and all persons or organisations who have provided day care or family care services.
IT IS NOTED that publication of this judgment under the pseudonym Patch & Rabadi is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 1492 of 2019
| MS PATCH |
Applicant
And
| MR RABADI |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons relate to a controversy, arising between the parties concerned, regarding the discovery and production of documents in the overall context of a dispute about the existence or otherwise of a de facto relationship between them.
Ms Patch who is a part-time professional, commenced the proceedings in April of 2019. She named Mr Rabadi, who is a farmer, as the respondent in the proceedings.
On a final basis, she indicated that she sought the following order:
“1. That the applicant be excused from particularising the Orders she seeks until such time as the interim proceedings progressed and the respondent complied with discovery.
2. That the respondent pay the applicant’s costs of and ancillary to this application.
3. Such further orders as this Honourable Court deems fit.”
It is however apparent that it is Ms Patch’s position that there was a de facto relationship between her and Mr Rabadi, which commenced in 2014, when Mr Rabadi began to stay overnight at Ms Patch’s home in Suburb B.
In 2014, Ms Patch moved into premises owned by her at Suburb A. It is her position that Mr Rabadi lived with her, at these premises, until April 2017, during which time the parties lived together in a de facto relationship.
Mr Rabadi responded to this application on 29 May 2019. It is his position that Ms Patch’s application should be dismissed and she should pay his costs.
In respect of interim and or procedural orders pending the final determination of the case, Mr Rabadi seeks the following orders:
“1. That the Affidavit of the applicant filed on 15 April 2019 be uplifted and that the applicant do have leave to file a further Affidavit which complies with the Rules of Court.
2. That the requirement of the respondent to file a Financial Statement be dispensed with pending the Court's determination of the threshold issue in respect to the existence or not of a de facto relationship between the parties.
3. That the threshold issue be listed for final hearing at a date and time to be fixed by this Honourable Court.
4. That the parties make mutual informal discovery of all documents relevant to the CoL1rt's consideration of the threshold issue.
5. Such further or other orders as this Honourable Court deems just and equitable in the circumstances.”
It is implicit in Ms Patch’s affidavit that she seeks some form of settlement of property issues between her and Mr Rabadi as a consequence of the alleged de facto relationship between the two. However, she has not provided any specifics of what would be the mechanics of such a settlement.
Mr Rabadi vehemently refutes any suggestion that there was any form of relationship between him and Ms Patch sufficient to found any such application. In this context, he is resistant to providing the applicant with any details regarding his financial position. For her part, Ms Patch seeks details regarding various trusts in which she asserts Mr Rabadi has an interest.
That there was some form of relationship between the parties cannot be doubted. They are the parents of a child – X, who was born in 2017. X lives with her mother.
Concurrently with these proceedings, there have been proceedings relating to the provision of financial support for X, by Mr Rabadi, before the Registrar of the Child Support Agency and, more recently, in the Administrative Appeals Tribunal. These appear to have been vigorously contested and to involve discovery issues.
The proceedings before this court have been marked by a lack of cooperation between the parties, who view each other with a significant degree of antipathy and suspicion. I am concerned that the current issues relating to discovery have been poorly handled. Certainly little attempt has been made to narrow issues or identify those which are likely to be central to the determination of the case.
At the first mention of the matter, before the court, I was advised that the issue whether there was or was not a de facto relationship between the parties should be fixed for determination as a preliminary issue. As a consequence of this state of affairs, at a call over of matters awaiting trial, held on 30 July 2019, the following order was made:
“This matter be listed for final hearing on the threshold issue before Judge Brown on 8 & 9 April 2020 at 10:00am NOTING 2 days hearing time has been allocated and will not be exceeded without leave of the Court.”
Although it would appear to have been an intervention of doubtful utility, at this stage, the parties also agreed to attend an informal settlement conference, with their respective counsel, in order to see if there was any prospect of the various disputes between them being resolved consensually.
At this juncture, I was reliant on the representations of each of the parties’ lawyers regarding how much hearing time was required, as neither had as yet provided any evidence from any potentially corroborative witness regarding each of their respective views as to the essential nature of the relationship between them.
In this context, the proceedings were adjourned to 19 December 2019, on which occasion it was anticipated that any necessary directions would be made regarding the conduct of the anticipated trial.
On 5 December 2019, Mr Rabadi’s solicitors filed an application in a case, in which the following orders were sought:
“1. That the Initiating Application filed on 15 April 2019 be dismissed.
2. That in the alternative to paragraph 1 hereof, the respondent do within 28 days of the date hereof provide discovery of and produce copies of the following documents:
2.1Taxation returns, PAYG certificates and Notices of Assessment for the financial years ended 30 June 2014 to 30 June 2019 inclusive.
2.2All employment contracts or letters, emails or other memoranda relating to the terms of employment between 1 July 2013 and 1 July 2018.
2.3 In respect to the respondent's home at Suburb A:
2.3.1 copy of contract of sale and purchase;
2.3.2 settlement statement;
2.3.3copy application for finance and/or documents associated with the same;
2.3.4statements in respect to the mortgage account for the period 1 July 2013 to the current date;
2.3.5all other documents relating to any application to subdivide the same including but not limited to applications to council, draft development plans, surveyors plans and any correspondence to and from any council, surveyor or financial institution in respect to the same.
2.4 Her Will.
2.5All correspondence to and from Centrelink including any letters, memoranda or the like relating to her receipt of Centrelink benefits during the period 1 July 2017 to the current date.
2.6Application to the Department of Human Services for the applicant Mr Rabadi to be assessed for child support made in or about August 2017.
2.7Copy Medicare card or cards for the period 1 January 2013 to the current date.
2.8All bank statements relating to all bank accounts operated by her in her sole name or jointly with any other person including credit card accounts, business accounts for the period 1 June 2014 to the current date.
2.9Copy telephone accounts in respect to all mobile and landline accounts in her sole name or jointly with any other person for the period 1 June 2014 to the current date.
2.10All documents relating to the alleged assault which occurred on or about 2 January 2015 including but not limited to statements to the police and all letters, memoranda or other documents relating to the withdraw of assault charges against Mr Rabadi and the finalisation of the intervention order which occurred on or about 2 February 2015.
2.11Copy of Resume and/or applications for employment and any responses thereto made in the period 1 January 2014 to the current date.
2.12Superannuation benefit statements including nominated beneficiaries for the financial years ended 30 June 2014 to the current date.
3. The respondent do within 14 days of the date hereof provide to the applicant's solicitors:
3.1 The names, addresses and contact details of:
3.1.1 the respondent's general medical provider;
3.1.2 the provider of prenatal classes;
3.1.3the child X’s current family day care provider and ail persons or organisations who have provided day care or family care services.”
In support of this application, Mr Rabadi’s solicitor, Mr Adey filed an affidavit, in which he deposed that there had been controversy between the parties regarding the production of documents, by Mr Rabadi, to the Administrative Appeals Tribunal in respect of issues relating to his financial circumstances as they pertained to the calculation of child support for X. In this context, Ms Patch had declined to attend the informal settlement conference, which had been convened for a date in October.
Ms Patch had not formally responded to Mr Rabadi’s application for discovery, when it was listed before the court on 19 December 2019. In all the circumstances, I did not consider it appropriate to deal with the issues arising, without such a response, as I considered that that would potentially be procedurally unfair to Ms Patch.
The Federal Circuit Court is a busy first instance court with a wide jurisdiction. One of the significant demands on its services is the need to resolve disputes between parents in which issues relating to the safety and protection of children are raised. For obvious reasons, such matters must be given priority.
On 19 December 2019, I made the following orders:
“1.The respondent mother file and serve a response to the application in a case filed 5 December 2019 within 28 days of today’s date.
2. Reserve costs of both parties.
3.Further consideration of the matter is adjourned to 13 March 2020 at 4:00pm.”
Perhaps naïvely, I was hopeful the parties themselves could resolve the issue of what documents were likely to be needed to resolve the central pressing evidentiary issue in the case, namely whether the parties concerned had been in a de facto relationship within the parameters prescribed by the Family Law Act 1975.
Ms Patch responded to the application in a case approximately twenty-eight days after the timeline specified by the court. She sought the following orders:
“1. That the application in a case filed by Mr Rabadi (the applicant) on 5 December 2019 be dismissed.
2. That the applicant pay the respondent’s costs of and ancillary to the application in a case on an indemnity basis.
3. That the defended hearing listed for 8 and 9 April 2020 be vacated and relisted to a later date and directions provided for the filing of documents.”
Accordingly, it is apparent that the positions of the parties are polarised in the extreme and there is little cooperation between them in respect of any potential for issues in dispute between them to be clarified or narrowed.
In her affidavit, in support of her position, Ms Patch deposed that Mr Rabadi had indicated to her that he was prepared to go to extraordinary lengths to ensure that her application was defeated. However, in her affidavit, Ms Patch did not otherwise engage with the issue of discovery.
It is however apparent from the submissions of her counsel, Mr Roberts, that she views the discovery sought as being oppressive in its scope and largely irrelevant. More recently, Mr Roberts has conceded that some of the documents sought by Mr Rabadi are accessible by his client and could be produced.
In this context, he asserted that Mr Rabadi ought to be careful of what he wished for, as some of the documents might ultimately prove to be helpful to Ms Patch’s case. If this is the case, it seems mind boggling that their production is so vehemently resisted. It also seems to be a statement contrary to the principles applicable to financial cases conducted in this court that each party is under an obligation to make a full and frank disclosure of all relevant documents.[1]
[1] See Federal Circuit Court Rules 2001 (Cth) at Rule 24.03
In the lead up to the hearing scheduled for 13 March 2020, Mr Rabadi has filed a further affidavit, in which he has attempted to clarify the extent and categories of the documents sought by him. As a consequence, he now seeks that Ms Patch make discovery of and produce the following documents:
·taxation returns for the financial years ended 30 June 2014 to 30 June 2017 inclusive;
·all employment contracts, applications for employment, curriculum vitae, letters, emails or other memoranda relating to the terms of employment undertaken by her in the period September 2014 to June 2017 inclusive;
·copy Medicare card for the period September 2014 to April 2017.
·all documents relating to the alleged assault which occurred on or about 2 January 2015 including but not limited to all letters, memoranda or other documents relating to the finalisation of the intervention order which occurred on or about 2 February 2015;
·superannuation benefit statements including nominated beneficiaries for the financial years ended 30 June 2014 to 30 June 2017 inclusive;
·copy of correspondence, lease/rental agreement in respect to premises occupied by her in the period from approximately September 2015 to August 2017 at Suburb C;
·copy of phone records for the period September 2014 to April 2017.
It is Mr Rabadi’s position that these documents are relevant to the determination of whether there was or was not a de facto relationship between the parties as they are the type of documents in which individuals disclose the existence of a de facto relationship for taxation, superannuation and employment purposes.
I also accept that individuals who are in some form of relationship with one another may telephone one another on a regular basis. It is also agreed that there was some form of incident between the parties which resulted in the involvement of police.
Mr Rabadi asserts that how he is described, by Ms Patch, in a statement made by her, in January 2015 is likely to be instructive. In the statement Ms Patch referred to Mr Rabadi as her partner but further clarified the relationship between them as being just a boyfriend and girlfriend relationship.[2]
[2] See affidavit of Mr Rabadi filed 5 March 2020 at [6]
In addition, in his affidavit, Mr Rabadi refutes any allegation that it is he who has adopted an obstructive and intransigent stance in the proceedings. In this context, he has provided the text of what he asserts is an acerbic and threatening telephone conversation which passed between him and Ms Patch. For her part, it is Ms Patch who asserts that after a period of initial cooperation regarding finalising arrangement for X’s support, it is Mr Rabadi and his family, who have become increasingly combative.
I am not in a position to resolve these issues definitively but, as previously indicated, I am concerned at the lack of cooperation and focus between the parties. This has the potential to add to the costs of the proceedings and increase the burden, both on the parties themselves and the court itself, which has obligations not only to provide access to its services to Ms Patch and Mr Rabadi but also to many others, including vulnerable children, who require urgent access to justice.
Mr Roberts has indicated that his client is able to produce her taxation records; superannuation details; some of her telephone records; and documents relating to her intervention order application.
Ms Patch’s case in summary
As previously indicated, as yet, Ms Patch has not provided any affidavit evidence from others asserted to be corroborative of her assertion that there was a de facto relationship between her and Mr Rabadi. She has however indicated, through her counsel that she intends to call two or three witnesses who will be able to depose as to the nature of her relationship with Mr Rabadi.
In summary, it is Ms Patch’s case that:
·Mr Rabadi lived with her, at her home, between September 2014 and June 2017, during which period she provided financial support for him.
·This financial support included the provision of food, shelter and access to utilities.
·The two went out for dinner, from time to time, and she would pay the bill.
·She assisted Mr Rabadi on his farm from time to time.
·When she was required to work away from her home, as a consequence of her employment as a professional by the Employer D, Mr Rabadi would continue to live in the premises owned by her.
·She cooked and cleaned for Mr Rabadi on a regular basis. She did his laundry.
·The two provided gifts to each other as a consequence of their relationship.
Mr Rabadi’s case in summary
Mr Rabadi also proposes to call a number of other witnesses, whom he asserts will corroborate his position that the parties did not have a relationship which can be categorised as a de facto one pursuant to the relevant legislation.
It is his case that there was no such relationship because of the following factors:
·The parties owned no property together and did not operate any joint bank accounts.
·He did not store clothing or personal items at Ms Patch’s home.
·Ms Patch did not participate in any family gatherings or activities relating to his family and he did not participate in any such familial events with Ms Patch’s family, whom he has never met.
·The relationship between the parties was intermittent and at its highest, was one which should be categorised as being of the nature of boyfriend/girlfriend.
·At all relevant times, he lived primarily on his farm.
·He concedes that when Ms Patch was away, he spent overnight periods at her home, but only to care for her pets as a favour to her.
The legal principles applicable to the court’s determination of whether a de facto relationship exists between the parties
As the parties have never been married to one another, before the court can exercise its power to alter property rights between them, it must declare that a de facto relationship existed between them, at a time after the commencement of the applicable Commonwealth legislation, which is contained in Part VIIIAB of the Family Law Act 1975.[3]
[3] Hereinafter referred to as the Act
The power to make a declaration, as to the existence or otherwise of a de facto relationship, arises pursuant to section 90RD(1) of the Act. Pursuant to the section, if an application is made for the alteration of property interests [section 90SM], following the breakdown of a de facto relationship: “the court may, for the purpose of those proceedings … declare that a de facto relationship existed, or never existed [between the applicant for such a declaration and another specified person]”.
The power to make such a declaration is refined by section 90RD(2), which makes reference to other jurisdiction preconditions relevant to the exercise of the court’s power in respect of de facto relationships. They include the power to make declarations regarding the following:
·The period or periods of the de facto relationship;
·Whether there is a child of the de facto relationship;
·Whether one of the parties to the de facto relationship made substantial contributions;
·When the de facto relationship ended;
·Where each of the parties to the de facto relationship was ordinarily resident during it.
In Jonah v White[4] Murphy J held that the making of a declaration, pursuant to section 90RD, does not involve the exercise of a judicial discretion. Rather, it is an issue to be resolved by the determination of fact. He said as follows:
“The ultimate question is in the nature of a jurisdictional fact. In Corporation of the City Enfield v Development Assessment Commission[5] the High Court held:
The term “jurisdictional fact” (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision maker to exercise a discretion.”
[4] See Jonah v White (2012) 45 Fam LR 460 at 466
[5] See Corporation of the City Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 at 148
In this particular case, the relevant “jurisdictional fact” is set out in section 4AA(1) of the Act, which provides the applicable definition of a de facto relationship. The section reads as follows:
“(1) A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b)the persons are not related by family (see subsection (6)); and
(c)having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.”
As previously indicated, although she has not specifically stated it to be the case, it appears that Ms Patch ultimately wishes the court to make property orders relating to the settlement of property issues referable to a de facto relationship between the parties.
Accordingly, prior to the court being authorised to make any such orders, it will be necessary for Ms Patch to establish whether she and Mr Rabadi were in a relationship that characterised them as being a couple living together, on a genuine domestic basis.
Section 4AA(2) is prefaced by the heading “Working out if persons have a relationship as a couple”. Thereafter the following circumstances are delineated, which may denote the existence of such a relationship. The list provided is not exhaustive and the factors on it are not specifically noted to be directive. They are as follows:
“(a) the duration of the relationship;
(b)the nature and extent of their common residence;
(c)whether a sexual relationship exists;
(d)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e)the ownership, use and acquisition of their property;
(f)the degree of mutual commitment to a shared life;
(g)whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h)the care and support of children;
(i)the reputation and public aspects of the relationship.”
In Taisha v Peng[6] Cronin J held that section 4AA(1) contained the mandatory requirements “for the existence or otherwise of a de facto relationship, whilst the matters listed in section 4AA(2) were to be utilised as a guide only for the purposes of the preceding sub section.”
[6] See Taisha v Peng (2013) 48 Fam LR 150 at 152
Mushin J in Moby & Schulter[7] considered that the question of whether the parties concerned were in a de facto relationship “must be considered on a case-by-case basis without circumscribing any particular factor”.
[7] See Moby & Schulter (2010) FLC 93-447 at 85,063
Accordingly, it is potentially erroneous for the court to attempt to isolate individual factors and attribute relative degrees of importance. It is the “composite picture” which is important.[8]
[8] See Taisha v Peng (supra) at 153
In Jonah Murphy J indicated that “the key” to the definition contained in section 4AA(1) was:
“…the manifestation of a relationship where ‘the parties have so merged their lives that they were, for all practical purposes, “living together” as a couple on a genuine domestic basis’. It is the manifestation of ‘coupledom’, which involves the merger of two lives as just described, that is the core of a de facto relationship as defined and to which each of the statutory factors (and others that might apply to a particular relationship) are directed.”[9]
[9] See Jonah v White (supra) at 471
It is Mr Rabadi’s position, as I apprehended, that at no stage did he and Ms Patch merge into a state of coupledom. Rather, although the two interacted with one another, in a variety of contexts, including the creation of a child, they continued to lead separate lives, particularly in a financial sense.
In Moby & Schulter Mushin J considered that the concept of “genuine domestic basis” was not a term of art but must be given its ordinary meaning. In particular, he considered that due regard must be had to the circumstances of modern life, which necessarily has the potential to throw up diverse relationships outside of the norm, which could nonetheless be considered genuine domestic ones, in common parlance.[10]
[10] See Moby & Schulter (supra) at 85,067
The existence or otherwise of a marriage is established by one unequivocal event, which is readily memorialised by official edict. No one event is necessarily definitive of the existence of a de facto relationship. In Moby Mushin J made the following comments, which seem to me to be germane to the present case:
“The parties' relationship may be seen as having gone through a number of different phases. The facts applicable to each of those phases may be seen as having a different bearing on the essential issue of whether the parties were in a de facto relationship. Accordingly, it is appropriate to consider the facts of the parties' relationship in those different phases and then step back and take an overview of the entirety of the facts.”[11]
[11] See Moby & Schulter (supra) at 85,067
Domestic derives from the latin domus, literally a home. As an adjective, it pertains to the home, household or family affairs.[12] In this context Cronin J in Taisha v Peng said as follows:
“… there must still be evidence of a domestic relationship. Mushin J in Moby said it was not a term of art but had to be given its ordinary meaning. I respectfully also adopt that because, having regard to s 4AA(4), the Court can take a wide discretionary view of the way in which the parties themselves conducted their relationship. Even having said that however, a domestic relationship must be one in which there are activities of running a household or shared households. That is, something must be seen to be related to domesticity which refers to home conditions and arrangements. For example, it could be indicated by people coming and going as if entitled to use and share the home’s facilities which is quite distinct from a boarding house or backpacking hostel where individuality reigns.
A couple therefore living in a domestic relationship is the opposite of a couple of individuals.”[13]
[12] See the Australian Oxford Dictionary
[13] See Taisha v Peng (supra) at 153
It is clear from the content of section 4AA(5) that a de facto relationship does not have to be exclusive in order to satisfy the definition contained in subsection (1). A de facto relationship can exist, even if one of the persons is legally married to someone else or even in another de facto relationship.
In this context, Murphy J did not consider that temporal or quantitative aspects were central to the existence or otherwise of a state of coupledom existing between the parties concerned. Rather, in his view, the issue turned on the nature of the relationship in question. In Jonah he said as follows:
“It seems to me to be clearly established by authority that the fact that, for example, the parties live in the same residence, for only a small part of each week does not exclude the possibility that they are ‘living together as a couple on a genuine domestic basis’ or that the maintenance of separate residences is necessarily inconsistent with parties having a de facto relationship. So much is, in my view, clear from the statutory recognition that parties to a relationship can be married but also be in a de facto relationship.
The issue, as it seems to me, is the nature of the union rather than how it manifests itself in quantities of joint time. It is the nature of the union – the merger of two individual lives into life as a couple – that lies at the heart of the statutory considerations and the non-exhaustive nature of them and, in turn, a finding that there is a ‘de facto relationship’.”[14]
[14] See Jonah v White (supra) at 472
Evidentiary principles applicable
The standard of proof to be applied in this case is the balance of probabilities.[15] Ms Patch must positively prove the existence of the defining characteristics, of such a relationship, rather than Mr Rabadi being required to prove the negative.[16] Section 4AA(4) provides as follows:
“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.”
[15] See Evidence Act1995 (Cth) at section 140
[16] See Shelley & Markhov [2012] FCWA 68 at [7]
In summary, whether or not there was a relevant de facto relationship arising in the current matter is a composite issue. One fact is not necessarily definitive. Mr Rabadi is not required to negate any particular issue. The court must also have regard to the fact that de facto relationships are necessarily idiosyncratic in their nature.
Legal principles relevant to discovery issues in the Federal Circuit Court
The overall objectives of the court are set out in section 3(2) of the Federal Circuit Court of Australia Act 1999. [17] In this section, the court is directed to “operate as informally as possible” in the exercise of its judicial functions and is further directed “to use streamlined procedures”.
[17] Hereinafter referred to as the FCCA Act
In addition, pursuant to section 42 of the FCCA Act, the court is directed by the use of the word must to:
“… proceed without undue formality and must endeavour to ensure that the proceedings are not protracted.”
Given its imprimatur to be a streamlined lower level Federal Court dealing with less complex disputes than are currently dealt with by either the Family or the Federal Court, the Act provides a qualified prohibition against the use of either discovery or interrogatories in the Federal Circuit Court. In particular, section 45(1) of the FCCA Act provides as follows:
“(1) Interrogatories and discovery are not allowed in relation to proceedings in the Federal Circuit Court of Australia unless the Federal Circuit Court of Australia or a Judge declares that it is appropriate, in the interests of the administration of justice, to allow the interrogatories or discovery.”
Pursuant to section 45(2), in deciding whether to make such a declaration, the court is directed to have regard to the following matters.
“(a) whether allowing the interrogatories or discovery would be likely to contribute to the fair and expeditious conduct of the proceedings; and
(b) such other matters (if any) as the Federal Circuit Court of Australia or the Judge considers relevant.”
Pursuant to section 81 of the FCCA Act, the Judges of the Court are authorised to make rules in relation to the practice and procedure to be followed in the Federal Circuit Court. As a consequence of this power, the Federal Circuit Court Rules 2001[18] have been created.
[18] Hereinafter referred to as the Rules
Pursuant to rule 1.05(1), these rules are intended to govern the practice and procedures of the court. However, if the rules are insufficient or inappropriate, in any particular case, the court may apply the Federal Court Rules, if it is necessary to do so.[19]
[19] See Rule 1.05(2)
Rule 14.02 of the Federal Circuit Court Rules deals with disclosure of documents generally and discovery, pursuant to section 45(1), specifically. The court may make a declaration under the section, either on the application of a party or on its own motion.
Rule 14.02(2) authorises the court to make an order for disclosure:
·Generally; or
·In relation to particular classes of documents; or
·In relation to particular issues; or
·By a specified date.
In these circumstances, it appears that section 45 creates a rebuttable presumption, in proceedings before the court, that discovery will not be generally permitted. The exercise of the presumption is subject to the interests of the administration of justice. This is consistent with the Legislature’s direction, arising from section 3 of the FCCA Act that the Court is to act informally and utilise streamlined procedures.
Rather, before any order is made for formal discovery, the court must formally declare that it is appropriate, in the interests of the administration of justice, to allow discovery. The exercise of this discretion is governed by considerations of whether discovery would likely assist in the fair and expeditious conduct of the case concerned and any other relevant matters.
In Rana v University of South Australia [20] Lander J recognised that this court, referring to its precursor, the Federal Magistrates Court:
“…has been created to offer relatively inexpensive and expeditious justice. It is a Court which should proceed without undue formality and should ensure proceedings are not protracted: [section 42]. It has abandoned the formal procedures of superior Courts. That course is consistent with the Act and the FMCA Rules.”
[20] Rana v University of South Australia (2004) 136 FCR 344 at [34]
Administration as a noun refers to the process or activity involved in running an organisation. In a broader sense, it refers to the management of public affairs or government generally. Accordingly, the concept contained in section 45(1) is distinct from the interests of the parties concerned in any particular piece of litigation. It has wider connotations and can encompass the interests of other users of the justice system and the community generally, who have an interest in ensuring the court resources are utilised rationally and carefully for the benefit of all.
In this context, it is likely to be beneficial to these other stakeholders that cases be concluded expeditiously, through a focus on the main issues arising in them, so that the court’s scarce judicial resources can be applied as widely as possible to the speedy resolution of other cases.
In my view, considerations of this type have informed the Legislature’s directive in respect of the issue of interrogatories and discovery, in this court, which is placed on the lowest rung of the Federal Judiciary and, as such, is directed towards the resolution of less complicated matters falling within its jurisdiction.
In this context, what was said by the former Chief Justice of the High Court, French CJ in Aon Risk Services Australia Limited v Australian National University[21] appears germane. His Honour said this:
“The adversarial system has been qualified by changing practices in the Courts directed to the reduction of costs and delay and the realisation that the Courts are concerned not only with justice between the parties, which remains their priority, but also with the public interest in the proper and efficient use of public resources.”
[21] Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 at [23]
The formal process of discovery is not the only mechanism by which parties to proceedings can access documents. Rule 15A.17 of the Federal Circuit Court Rules provides as follows:
“(1) A party may, by notice in writing, require another party to produce, at the hearing of the proceeding, a specified document that is in the possession, custody or control of that other party.
(2) Unless the Court otherwise orders, the party given notice to produce must produce the document at the hearing.”
Pursuant to section 56 of the Evidence Act 1995 only relevant evidence is admissible in proceedings before the court, whilst evidence, which is not relevant is inadmissible. This enjoins the provisions contained in section 55, which provides as follows:
“55 Relevant evidence
(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
(2) In particular, evidence is not taken to be irrelevant only because it relates only to:
(a) the credibility of a witness; or
(b) the admissibility of other evidence; or
(c) a failure to adduce evidence.”
The test of relevance, provided by section 55, is a wide one. To be relevant, the evidence in question must relate to a fact in issue in the case. The section requires a rational or logical connection between the evidence sought to be led and the fact in issue.
The connection may be minimal and it may be indirect but there must be such a connection. Lindgren J put it as follows: relevance depends on “an objective test grounded in human experience, on the application of which minds may differ, but which does not allow for the exercise of discretion.”[22]
[22] See Harrington-Smith v Western Australia (2003) 130 FCR 424 at 426
Discussion
I accept that some of the categories of documents sought by Mr Rabadi may potentially be relevant to the reputational and public aspects of the relationship between the parties. However, whatever the documents reveal, it seems unlikely that they will be definitive in respect of the composite nature of all the other criteria delineated by section 4AA(2) of the Act, particularly the nature or otherwise of any state of coupledom arising between them. These will likely turn primarily on the evidence of the parties themselves and those associated with them.
It is apparent that individuals can live together, as a couple, on a genuine domestic basis, notwithstanding the fact that they keep certain aspects of such a relationship secret from the world at large or indeed decline to declare the existence of their relationship to any public authority.
As Mushin J observed, the complexities and intricacies of modern life have the potential to throw up myriad situations which are idiosyncratic in nature but nonetheless encompassed by the legislative definition of a de facto relationship. Each case turns on an assessment of all the facts relevant to how the parties concerned have interacted with one another during the course of the relevant involvement with one another.
Accordingly, in view, the various documents sought by Mr Rabadi have the potential to have only peripheral, if any, significance in the overall resolution of the dispute between the parties. In this context, I am perplexed both by the vehemence of Mr Rabadi’s demand for them and the intransigence of Ms Patch’s resistance to their production, which she has ameliorated only recently.
This stance is not helpful to how both the court and parties themselves are directed to approach litigation in the modern era, as envisaged in such cases as Aon Risk Services. It is not a streamlined response to the administration of justice.
There can however be no doubt that Ms Patch is now well and truly on notice of the fact that Mr Rabadi regards the documents as having some significance in the case, and therefore will wish the court to draw inferences adverse to Ms Patch’s case if they are not ultimately produced or no adequate explanation provided as to their unavailability or otherwise non-existence.
In all these circumstances, in my view, it is highly undesirable and contrary to the interests of the administration of justice that this issue has been so forcefully agitated before the court. It is one which should have been expeditiously resolved by competent legal practitioners.
It is my view that, given the notice to produce mechanisms available under the court’s rules, a formal (and expensive) discovery process is unwarranted and oppressive. It would not be in the interests of the administration of justice to make such an order.
In these circumstances, given the concessions made by Mr Roberts, the fact that I have already confirmed that the hearing of the preliminary issue should proceed on the date allocated for it previously (subject to any issues relating to the current pandemic emergency), and that I have made orders in respect of the filing of affidavit evidence, I propose to make an order that Ms Patch produce the documents sought on or before 8 April 2020, which is the date set for the hearing of the trial.
Given my assessment that neither party’s conduct in respect of their approach to this issue can be considered blameless, I do not propose to make any order in respect of costs.
It is also necessary for me to point out to the parties that, given the global pandemic which is currently affecting both Australia and the world, and given the restrictions currently in place in respect of both the number of people who may be present in court and the duration of such presence, it is highly improbable that the hearing of the preliminary issue will proceed on the days allocated. These factors should not preclude Ms Patch from producing the various documents ordered to be produced by her.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Judge Brown
Associate:
Date: 25 March 2020
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