Piovene & Muhlfeld
[2025] FedCFamC1A 46
•19 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Piovene & Muhlfeld [2025] FedCFamC1A 46
Appeal from: Piovene & Muhlfeld (No 3) [2024] FedCFamC1F 614 Appeal number: NAA 262 of 2024 File number: SYC 4211 of 2023 Judgment of: HARPER, RIETHMULLER & STRUM JJ Date of judgment: 19 March 2025 Catchwords: FAMILY LAW – APPEAL – DE FACTO RELATIONSHIP – Appeal from declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) as to the parties’ relationship – No factual error capable of materially affecting the outcome demonstrated – Appellant failed to establish incompetence of counsel – Appeal dismissed – Appellant to pay the respondent’s costs in a fixed sum.
FAMILY LAW – APPLICATION IN AN APPEAL – Application to adduce further evidence – Where the material the appellant sought to adduce was of no utility or relevance to issues in proceedings – Application dismissed.
Legislation: Evidence Act 1995 (Cth) s 50
Family Law Act 1975 (Cth) Pt VIIIAB, ss 4AA, 90RD, 90RE, 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 12.08, 12.17
Cases cited: Cizek & Mihov (2024) FLC 94-206; [2024] FedCFamC1A 151
Colburn & Cleese (2022) FLC 94-105; [2022] FedCFamC1A 147
Cubillo v Commonwealth (No 2) (2000) 103 FCR 1; [2000] FCA 1084
De Winter and De Winter (1979) FLC 90-605
Diamond & Diamond [2024] FedCFamC1A 201
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Hedlund & Hedlund (2021) 64 Fam LR 458; [2021] FedCFamC1A 84
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Koyroyshs & Koyroyshs [2021] FedCFamC1A 54
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28
Markusson & Markusson (No 3) [2024] FedCFamC1A 196
Massalski & Riley (2021) FLC 94-047; [2021] FamCAFC 116
Moore (a pseudonym) v The King (2024) 98 ALJR 1119; [2024] HCA 30
OP v TP & Anor (Conduct of Counsel) (2002) 30 Fam LR 281; [2002] FamCA 1155
Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Yoxall & Eide [2024] FedCFamC1A 200
Number of paragraphs: 75 Date of hearing: 4 February 2025 Place: Sydney The Appellant: Litigant in person Counsel for the Respondent: Mr Kearney SC Solicitor for the Respondent: Barkus Doolan Winning ORDERS
NAA 262 of 2024
SYC 4211 of 2023FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR PIOVENE
Appellant
AND: MS MUHLFELD
Respondent
ORDER MADE BY:
HARPER, RIETHMULLER & STRUM JJ
DATE OF ORDER:
19 MARCH 2025
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 21 January 2025 be dismissed.
2.Appeal NAA 262 of 2024 be dismissed.
3.Within 28 days of the date of these orders, the appellant pay the respondent’s costs of the appeal fixed in the amount of $35,000.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Piovene & Muhlfeld has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARPER, RIETHMULLER & STRUM JJ:
This is an appeal from a declaration of a judge of the Federal Circuit and Family Court of Australia (Division 1) that a de facto relationship never existed as between the appellant and the respondent.
The declaration appealed from is as follows:
Pursuant to s 90RD of the Family Law Act 1975 (Cth) as between the [appellant] and the respondent a de facto relationship never existed.
Such a declaration is a final, not interlocutory, decree, and takes effect as a judgment. No leave to appeal is required (s 90RE(1) of the Family Law Act 1975 (Cth) (“the Act”); Colburn & Cleese (2022) FLC 94-105 at [13]–[16]).
BRIEF BACKGROUND
The parties had a personal relationship in 1998 which ended in 2000. The parties resumed contact in 2010.
The appellant sought a declaration pursuant to s 90RD of the Act that a de facto relationship existed between the parties from 2010 until 26 October 2022. The declaration was necessary to found jurisdiction to decide the appellant’s consequential claim to property division under Pt VIIIAB of the Act.
The respondent denied a de facto relationship ever existed, and cross-applied for a declaration to that effect. She argued the appellant was her best friend.
There are no children of the relationship.
PRIMARY JUDGMENT
The primary judge determined the question of whether a de facto relationship existed between the appellant and the respondent within the meaning of s 4AA(1) of the Act. This provision stipulates that one person is in a de facto relationship with another person if three jurisdictional facts are found:
(a) the persons are not legally married to each other; and
(b) the persons are not related by family…; 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.
…
The first two facts were uncontentious. The hearing before the primary judge concerned the third jurisdictional fact.
His Honour set out the background facts at [18]–[37]. In the course of these parts of his reasons he adverted to significant parts of the affidavit evidence, highlighting the following important differences:
(a)The appellant claimed that the parties made contact in 2010, talked about their previous relationship, and began a sexual relationship, with weekly intercourse, which lasted twelve years until 2022 when he had an affair with another individual; the respondent claimed the parties commenced a business relationship and friendship in 2010, while she was in a de facto relationship with Mr N, and started a casual sexual relationship in 2015 which lasted until 2019, involving intercourse up to five to ten times during that period (at [21]–[22] and [30]);
(b)The appellant claimed the parties considered purchasing an apartment at Suburb T which happened in 2010 through a company owned by the respondent. He said the parties stayed there together as a couple on weekends and some weekdays, went for walks and visited local cafes. The respondent agreed she purchased the apartment in the name of her self-managed superannuation fund but claimed her daughter, Ms F, lived there between 2010 and 2011, and thereafter it was rented to Mr N until 2014 (at [25]–[26]);
(c)The appellant moved into an apartment owned by the respondent in Suburb U in 2013, where the parties lived together for two or three days each week, and where the respondent stored clothes and personal items. The respondent denied this, stating that she did not stay at Suburb U until 2014, after the end of her relationship with Mr N, and only on five to ten occasions between 2014 to 2019 (at [29]–[30]);
(d)The appellant claimed the parties travelled extensively together both internationally and domestically, slept together, stayed in the respondent’s property at Region GG, and that the respondent provided frequent flyer points to the appellant as a family member. The respondent agreed only that the parties travelled together for business purposes and she gave frequent flyer points to other friends (at [31]–[32]);
(e)The appellant pointed to social functions, such as Christmas parties, which he claimed the parties hosted together as a couple, while the respondent maintained they did so as friends (at [33]–[34]);
(f)The appellant claimed the relationship ended abruptly when the respondent discovered the appellant’s affair in 2022, and her furious reaction demonstrated the strength of their romantic attachment to that point. The respondent gave evidence of a more staggered disintegration of the relationship, referring to problems with the appellant’s work, and the perception of her children that the appellant was greedy. She denied being furious in the manner described by the appellant (at [35]–[36]).
The primary judge then set out the applicable law at [38]–[43]. There was no challenge to his statement of principle or references to the relevant statutory provisions.
At [44]–[72] his Honour discussed the credit of the parties and their witnesses at length. He adverted to specific aspects of the appellant’s evidence, concluding that he failed to tell the truth on several occasions (at [51]–[53] and [57]). At [57], his Honour concluded:
…Of course, the fact that the [appellant] may have been less than frank in other proceedings does not mean that the [appellant] is being untruthful now. It does, however, mean that I approach all of his evidence with a greater degree of caution that might otherwise have been the case and will prefer it only where it is supported by other evidence or documents.
His Honour also found that the credit of the respondent was less than satisfactory and concluded at [61]:
As with the [appellant’s] evidence I will for the above reasons proceed with caution accepting the uncorroborated evidence of the respondent.
Importantly for this appeal, the primary judge found the respondent’s former de facto partner, Mr N, to be a “credible and reliable” witness (at [69]–[70]).
The primary judge made findings adverse to the appellant on a number of central issues: whether he occupied the Suburb T apartment as he claimed between 2010 and 2013, preferring the version of the respondent (at [73]–[83]); whether the respondent and Mr N were in a de facto relationship until February 2014, and entered into three Binding Financial Agreements, the last dated in 2015 (at [84]–[89] and [90]–[93]); whether the appellant had claimed he would marry a nanny employed by Ms F called Ms NN (“[Ms NN] issue”) (at [94]–[105]); whether the parties always slept together when they travelled, finding they did not (at [106]–[109]); whether photographs, text messages and a transcript of an interview demonstrated a de facto relationship, finding only that they demonstrated “closeness” between the parties and the respondent’s family (at [110]–[119]); and the events of October 2022 when the respondent found out about the appellant’s relationship with another person (at [120]–[130]).
The primary judge discussed the statutory indicia set forth in s 4AA(2) of the Act at [131]–[180]. He was not satisfied the parties ever had a common residence (at [136]). He preferred the evidence of the respondent regarding the parties’ sexual relationship, that is, sexual intercourse “about 5 to 10 times” between 2014 and ultimately 2018 when she was diagnosed with a sexually transmitted infection (at [146]–[147]). He found the respondent had never been financially dependent upon the appellant, and they never owned property jointly, or held a joint bank account, and kept their business interests separate (at [149] and [158]). He was not satisfied the parties had a commitment to a shared life between 2010 and 2022 (at [161]). The primary judge pointed out that the appellant called no witnesses who said the appellant had told them that he was in a de facto relationship with the respondent, nor any observations by any of his family members about the parties’ relationship, and that he had failed to nominate the respondent as a de facto partner on a hospital admission form in 2013 (at [171] and [179]).
At [183]–[184] the primary judge concluded:
183. On my assessment of all of the evidence as referred to above, I am not persuaded that the evidence supports a finding that the parties were in a de facto relationship between 2010 and 2023. Most persuasive and telling against there being a de facto relationship as asserted by the [appellant], includes my acceptance of the respondent’s evidence on the use of the Suburb T apartment and the rejection of the [appellant’s] evidence, the respondent’s evidence as to the extent of their sexual relationship, the respondent’s de facto relationship with Mr N, the [appellant’s] statement that he planned to marry Ms NN, the rejection of the [appellant’s] evidence of staying at Suburb W, the text messages between Ms F and others as to the nature of the [appellant’s] relationship with the respondent, the failure of the [appellant] to call evidence from his daughters, son, sister and niece and the unexplained failure of the [appellant] to attend the respondent’s fathers funeral and wake.
184. In this matter, having regard to all of the circumstances referred to above I am not persuaded that I could make the declaration sought by the [appellant]. I am persuaded however that the evidence supports the making of a declaration as sought by the respondent.
THE APPEAL
On appeal, the appellant sought that the orders made on 19 September 2024 be set aside, the matter be remitted and for costs certificates to be provided to the parties.
The respondent seeks that the appeal be dismissed and that the appellant pay her costs of, and associated with, the appeal.
The judgment appealed from is not a discretionary judgment, but an evaluative factual determination, answering the question of whether a de facto relationship within s 4AA of the Act did, or did not, exist. There is only one correct answer to this question so that the “correctness standard” applies on appeal, meaning an appellate court determines for itself the correct outcome “while making due allowance for such “advantages” as may have been enjoyed by the judge who conducted the trial or hearing” (Moore (a pseudonym) v The King (2024) 98 ALJR 1119 at [14]).
The Full Court recently explained the implications for appellate review where the “correctness standard” applies in Yoxall & Eide [2024] FedCFamC1A 200 at [48] and [53]:
48. …
a) The appealed judgment was not a discretionary judgment. We adopt the statement articulated by Austin J in Cizek & Mihov [2024] FedCFamC1A 151 at [86] that:
Once accepted that this ground relies upon legal principles relating exclusively to appeals which lie from discretionary judgments, the defect in the ground becomes patent. The appealed judgment was not a discretionary judgment. Rather, it was an evaluative factual judgment (Colburn & Cleese (2022) FLC 94-105 at [32]; Lennon & Sanil (2020) FLC 93-962 at [8]). The question of whether a de facto relationship ever existed between the parties is capable of only one correct answer and the choice is binary: either yes or no. Discretionary judgments are different because the law admits of more than one correct answer within a tolerable range (GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635 at [16] and [26]).
b) This being an evaluative factual judgment, the appeal from it is governed by the “correctness” standard rather than the well established principles identifying appealable error from a discretionary judgment in House v The King (1936) 55 CLR 499 at 504–505 (see GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635 at [15]–[17] and [23]–[26]);
c) As a result of applying the “correctness” test, the appellant must demonstrate a legal or factual error which is material to the outcome. The ground, as pleaded, is a species of discretionary error that cannot found an appeal from a factual judgment;
…
53. … As the Full Court has explained, complaints about the weight attributed to the evidence by the primary judge are irrelevant unless connected to an assertion that the overall result was manifestly unreasonable (Hedlund & Hedlund (2021) FLC 94-065 at [12] and [36]–[37]). Such complaints, rare though they should be, are confined to discretionary judgments, which this was not.
The point is that the appellant must establish a legal or factual error, not discretionary error.
It is also apposite to emphasise the necessity for the appellant to identify appealable error, as the Full Court explained in Diamond & Diamond [2024] FedCFamC1A 201 (“Diamond”) at [18]:
… This is an appeal by way of re-hearing, the success of which depends upon the demonstration of appealable error by the primary judge (Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 at 179–181 and 187; CDJ v VAJ (1998) 197 CLR 172 at 201–202 and 233–234; Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84 at 124–126). In the absence of appealable error, there is no scope for appellate interference.
Several other points of principle should be emphasised as central to the determination of the appeal. As the primary judge observed, the Court is not obliged to either accept or reject the evidence of any witness entirely, but can accept some parts of a witness's evidence and reject others; a witness may be accepted as credible even if aspects of their evidence are not accepted (Massalski & Riley (2021) FLC 94-047 at [82]–[84]; Cubillo v Commonwealth (No 2) (2000) 103 FCR 1 at [121]). In Cizek & Mihov (2024) FLC 94-206 at [20] Austin J pointed out:
...[N]o legal principles govern a trial judge’s assessment of witnesses’ reliability because such assessments are an intrinsically intuitive process. An integral part of the judicial function is the formation and expression of impressions about the reliability of witnesses, at least in so far as such impressions influence material factual findings. It is well accepted that appeal courts should generally respect the advantages enjoyed by trial judges to evaluate the evidence and the credibility of witnesses, though obvious error must still be corrected (Fox v Percy (2003) 214 CLR 118 at 127–129 and 138–147).
In relation to factual errors, appellate intervention will only be warranted if the mistake of fact is material to the ultimate decision (De Winter and De Winter (1979) FLC 90-605 at 78,092). An appellate court will not interfere with a finding of fact if there is evidence on which that finding could be made, even where an alternate finding may have been available, as the Full Court explained at [121] in Koyroyshs & Koyroyshs [2021] FedCFamC1A 54:
Where a finding of fact is reasonably open on the evidence in the case, it will not be reversed merely because the appeal court would not have made the same findings (Edwards v Noble (1971) 125 CLR 296). Where the factual findings are likely to have been affected by the judge’s impressions about the credibility or reliability of the witnesses formed from seeing and hearing them give their evidence, unless those findings are demonstrated to be “glaringly improbably” or “contrary to compelling inferences” significant appellate restraint is required (see Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 331 ALR 550; Lee v Lee [2019] HCA 28; (2019) 266 CLR 129).
To succeed, the appellant has to establish on appeal how any challenged factual conclusions of the primary judge were not open on the evidence or why they were glaringly improbable, contrary to compelling inferences, or demonstrably wrong in the face of incontrovertible facts or uncontested testimony (Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550 at [43]; Lee v Lee (2019) 266 CLR 129 at [55]; Hedlund & Hedlund (2021) 64 Fam LR 458 (“Hedlund”) at [65]).
Application in an Appeal
On 21 January 2025, the appellant filed an Application in an Appeal which sought leave to adduce as evidence and rely upon three categories of documents: telecommunication records of the respondent produced on subpoena, together with a summary of that material under s 50 of the Evidence Act 1995 (Cth); 17 photos of the children of Ms F, and an affidavit of Ms F sworn 15 November 2019 in unrelated parenting proceedings between her and her former husband, Mr RR.
This Court must have regard to the evidence given in the proceedings out of which the appeal arose but has the power to draw inferences of fact and, in its discretion, to receive further evidence (s 35 of the Federal Circuit and Family Court of Australia Act 2021 (Cth)). The Court may admit further evidence if satisfied such evidence, if accepted, would demonstrate that the orders the subject of the appeal are erroneous and that a different result would have ensued if the further evidence had been available at the hearing at first instance: Diamond at [20] where the Full Court also said “…[i]f the proposed evidence does not acquit that purpose there is no utility in its admission (CDJ v VAJ (1998) 197 CLR 172 at [109], [111], [140]–[151], [169] and [186.9])”.
The Court adopted the approach of receiving submissions in relation to the appellant’s application on the assumption the further evidence may be received on appeal, bearing in mind the respondent addressed the application in her Summary of Argument.
The telecommunication records were the main focus of submissions on the appeal. The appellant argued they showed an absence of mobile phone cell tower “pings” or signals corresponding to the text messages sent between Ms F, her partner Mr G and the respondent. This, he claimed, demonstrated the messages were not sent at all, which undermined the credibility of copy messages tendered in evidence by the respondent before the primary judge, and therefore the credibility of the respondent.
In support of these arguments, the appellant relied upon annexures to his affidavit in support which showed screenshots of the relevant copy text messages bearing his own extensive notations and commentary purporting to identify various features said to demonstrate the copy text messages had been doctored by the respondent. In particular, the appellant asserted the “sent” and “received” messages were displayed on the “incorrect” sides of the telephone screen. He claimed this was an “impossible” presentation of actual text messages if they were truly sent, leading to the inference the copy messages must have been tampered with, and that therefore the factual conclusion must be that the messages had never actually been sent.
However, there was no dispute the proposed telecommunication records were available at trial and had even been the subject of prior interlocutory applications. It was unclear why the appellant sought leave in the appeal to adduce in evidence at least some of the documents specified in his proposed orders because, for example, the text message discussed at [94]–[105] by the primary judge concerning the Ms NN issue, and further considered below at [53]–[60], was obviously already in evidence.
Rather, it emerged in the course of his submissions that the evidence the appellant sought to adduce on appeal constituted no more than a series of his own observations and speculations, said to support an inference that the specified text messages had been doctored and were not authentic, and therefore, as mentioned above, destroyed the credit of the respondent. But such speculations by the appellant have no probative value, and cannot support the inferences promoted by him. To be tenable, his contentions about authenticity plainly required support from opinion evidence of an expert nature. The appellant conceded this was necessary and that there was no such evidence. On the contrary, there was single expert evidence produced during the course of the proceedings to the opposite effect. The telecommunication records had been the subject of prior interlocutory applications before the primary judge leading to the appointment of a single expert who, having considered the records, opined that he could observe “no…signs of tampering or manipulation”.
As regards the photos and the affidavit of Ms F, the appellant’s affidavit in support of his application made no attempt, and his oral submissions failed, to explain or demonstrate what possible relevance the proposed photographs of the respondent’s grandchildren or the affidavit could have to an issue in the proceedings or how they could have led to a different result.
In particular, as regards the proposed photos, we understood the appellant’s argument to be that the photos were some evidence establishing closeness between him and the respondent’s family, which helped to establish the asserted de facto relationship. But the primary judge had regard to photos which had been tendered to prove the same contention. He accepted those photos showed “a closeness in the relationship between the [appellant] and the respondent and the respondent’s family” but did not establish a de facto relationship (at [112]). More of the same could not lead to a different result.
There is no utility in admitting the proposed evidence. The appellant’s Application in an Appeal will be dismissed.
We turn then to the grounds of appeal. The appellant’s Amended Notice of Appeal filed 7 January 2025 set out seven grounds of appeal, with Grounds 6 and 9 being abandoned.
Ground 1 – Incompetence of counsel
This ground concerns the appellant’s claim of incompetent counsel arising from an asserted failure to tender telecommunication records to prove the text messages the subject of his Application in an Appeal were not authentic.
This is not competent as a separate ground of appeal (Markusson & Markusson (No 3) [2024] FedCFamC1A 196). But, at least in the context of a criminal trial, an appeal may be allowed if it can be demonstrated that the incompetence of counsel was such that the appellant was not afforded a fair trial or it produced a miscarriage of justice (TKWJ v The Queen (2002) 212 CLR 124). It must be shown that decisions of counsel during the hearing were not only wrong or incompetent, but that their effect was such that they were likely to have brought about a result different to the likely result if they had not been made (OP v TP & Anor (Conduct of Counsel) (2002) 30 Fam LR 281 at [124]).
As pointed out in relation to the Application in an Appeal, the appellant failed to sustain any argument that admission of the specified telecommunication records would have either shown the text messages were not authentic or could have led to any different result. Accordingly, there is no basis to conclude any incompetence has been demonstrated. Indeed, as the respondent submitted, the decision not to press evidence which could not sustain the asserted inferences, and would have wasted the Court’s time, was a mark of competence not incompetence.
Ground 2 – Error in the allocation of onus of proof
This ground alleges an incorrect allocation of onus of proof by the primary judge. It asserts the primary judge required the appellant to establish that a third Binding Financial Agreement did not exist between the respondent and Mr N, which recorded the end date of their relationship was February 2014, rather than 2011. The appellant further alleges there was no evidence to support the finding that such an agreement did exist.
The date of the end of the relationship between the respondent and Mr N was important only because it was the appellant’s case that his alleged de facto relationship with the respondent commenced in 2010. The respondent had contended that her relationship with Mr N ended in February 2014 which, it was contended, was inconsistent with the existence of another de facto relationship with the appellant claimed to have commenced in 2010. It was not in issue that there were a number of versions of the financial agreement between the respondent and Mr N. Both she and Mr N gave evidence that they entered into a third Binding Financial Agreement in 2015, which recited their relationship ended in February 2014, but no version of this document was in evidence. It was the appellant’s argument that the earlier versions were inconsistent with a finding that the respondent and Mr N’s relationship ended in 2014 rather than 2011, and that the failure to tender a copy of the third agreement should have led to the conclusion that it did not exist.
The primary judge dealt with these factual issues at [90]–[93] as follows:
90. The [appellant] made much of the Financial Agreement entered into between the respondent and Mr N. There is no issue that there were a number of versions of the Financial Agreement. One version recorded the date of separation of Mr N and the respondent as 2009 which was subsequently amended with a handwritten amendment recording 2011. During the respondent’s cross-examination on this document, she contended that there were in fact three versions of the Financial Agreement.
91. Mr N gave clear evidence in the course of his cross-examination when he said that the final copy he saw at Suburb MM hospitality office said the relationship ended in February 2014.
92. Two Financial Agreements were tendered (Exhibits 21 and 43). The existence of a third accords with the evidence of the respondent and Mr N. The solicitor advocate for the [appellant] submitted from the Bar Table that they had issued a subpoena calling for Financial Agreements and only two were produced. No evidence of the subpoena or the documents produced were tendered.
93. I accept the evidence of the respondent and Mr N as to when their relationship ended and that there existed more than two Financial Agreements, one of which recorded a date of February 2014.
It can be seen that there is no basis for the submission that the primary judge required the appellant to disprove the existence of the third Binding Financial Agreement by an erroneous allocation of onus of proof.
Rather, the primary judge evaluated all the available evidence and preferred the evidence which supported a finding that a third Binding Financial Agreement had been entered into, even if no copy could be found to adduce in evidence.
But in any event, the existence of the third agreement was subsidiary to the more important factual issue, namely, the date when the de facto relationship between Mr N and the respondent came to an end. Both the respondent and Mr N gave evidence that their relationship ended in 2014. The primary judge accepted the evidence of both on this question, not only by finding there was a third financial agreement but because he accepted Mr N was a credible and reliable witness (at [69]–[70] and [88]). The finding of the primary judge was plainly open on the evidence.
The argument of the appellant was really to the effect that the respondent and Mr N had several times acknowledged their relationship had ended in 2011, so the change to 2014 destroyed their credibility. But as pointed out, the primary judge found Mr N was a reliable and credible witness. It was open to his Honour to find the relationship with the respondent existed until 2014 on the basis of Mr N’s evidence, putting to one side whether there was a third financial agreement. Making all due allowances for the advantages available to the trial judge (Fox v Percy (2003) 214 CLR 118 at 128, [29]) and in light of the obviously detailed consideration of the evidence by the primary judge, we do not accept the appellant’s argument.
It should also be said that even if the primary judge had concluded that the relationship between the respondent and Mr N likely ended in 2011 rather than 2014, this was still inconsistent with the appellant’s claim that a relationship between him and the respondent commenced in 2010. More importantly, many other factors led the primary judge to conclude no de facto relationship ever existed between the appellant and the respondent. The appellant did not demonstrate why a rejection of the existence of a de facto relationship between Mr N and the respondent after 2011 would have resulted in an ultimate finding of a de facto relationship between the appellant and the respondent, that is, to an evaluative factual determination opposite to that reached by the primary judge. As pointed out, that factual determination was either right or wrong, not discretionary. In other words, the appellant failed to demonstrate the asserted factual error could have materially affected the outcome.
Ground 2 fails.
Ground 3 – Error by imposing inconsistent criteria as to credibility
Ground 4 – Accepting the appellant “intended to marry [Ms NN]”
These grounds can be dealt with together because they materially overlap.
In Ground 3 the appellant complains generally that the primary judge applied an inconsistent standard in accepting or rejecting the evidence of the parties. He alleges he was required to provide corroborating documents to support the credibility of his evidence, but the respondent’s uncorroborated evidence was accepted “with caution”.
He seeks to illustrate and connect this general complaint to two factual issues, namely, the Ms NN issue and, again, whether the respondent had entered into a third Binding Financial Agreement with her former de facto partner Mr N in 2015.
On the Ms NN issue, Ground 3 complains that the primary judge accepted the respondent’s evidence which was not corroborated. Ground 4 complains that the primary judge erred in accepting the claim that the appellant “intended to marry [Ms NN]”.
The primary judge dealt with this issue at [94]–[105]. He concluded that the appellant did in fact say to the respondent he planned to marry Ms NN, which was a statement inconsistent with the claimed de facto relationship with the respondent.
Both grounds incorporated the contention that the primary judge gave weight to a text message which was not authentic, and, we assume, failed to give weight to evidence showing the appellant was not in a relationship with Ms NN.
In challenging the findings of the primary judge, the appellant referred again to the text message sent by Ms F to Mr G on 14 July 2021 in which she said “[s]peaking of [Ms NN] did I ever tell you that [the appellant] was going to marry her so she could stay in Australia…”. As discussed, this text message was one of those which was the subject of the appellant’s Application in an Appeal, and the appellant failed to show any convincing reason to conclude the text message was not authentic.
The appellant pointed to documentary evidence which he claimed showed he was not in a relationship with Ms NN. Two of these documents were affidavits of Ms NN herself in which she stated the appellant and the respondent “have a relationship”. Another document was a record of an interview between the respondent and two officers from the Department of Social Services on 12 June 2019. The subject broadly concerned leases of residential properties. The appellant pointed to the fact that the respondent said at one point in the interview “[a]nd my partner, [the appellant], basically does the onsite management”. Such evidence, so the appellant argued, should have led to a finding that he was not in a relationship with Ms NN, because it was consistent with him being in a relationship with the respondent.
We do not accept this submission. A judge is not required to make an explicit finding on each disputed piece of evidence (Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378) nor is it necessary that they mention every fact or argument relied on as relevant to an issue in the proceedings (Whisprun Pty Ltd v Dixon (2003) 200 ALR 447). The conclusion of the primary judge is not wrong merely because the appellant can point to countervailing evidence or circumstances (Thorne v Kennedy (2017) 263 CLR 85; Edwards v Noble (1971) 125 CLR 296).
The documents pointed to by the appellant are equivocal and stood to be evaluated in light of all the evidence. They are not even obviously or necessarily inconsistent with him having a relationship with Ms NN.
But, in any event, there was ample evidence to support the conclusion reached by the primary judge on the Ms NN issue. Both Ms F and Mr G gave evidence but were not cross-examined on their text message, while the text message was but one piece among several pieces of evidence upon which the primary judge relied on reaching his ultimate conclusion on this factual issue. The other evidence was found in the affidavit of the respondent, to the effect that the appellant openly discussed marrying Ms NN in her presence; in the affidavit of Ms F to the effect that Ms NN said the respondent would marry her to “keep her in the country”; and unchallenged direct observations of another witness, Ms K, that the appellant and Ms NN acted in a flirtatious manner and he visited her apartment. The primary judge believed this evidence and rejected the appellant’s submission that the asserted relationship with Ms NN was a fabrication by the respondent. It is true that at [102] the primary judge rejected this submission as inconsistent with the impugned text message, but at [103] he concluded that the most plausible explanation of all the evidence was that the appellant did say he would marry Ms NN.
The determination concerning whether the respondent had entered into a third Binding Financial Agreement with her former de facto partner Mr N in 2015 is extensively discussed above at [41]–[45]. We will not repeat what was said there, but that discussion makes clear the assertion that the primary judge applied an inconsistent standard in accepting or rejecting the evidence of the parties cannot be sustained.
Grounds 3 and 4 fail.
Ground 5 – Refusing to draw an inference of a de facto relationship from the appellant’s evidence
This ground alleges the primary judge erred by not inferring a de facto relationship from the appellant’s evidence which included photos of the parties together, text and WhatsApp messages and joint travel. At [106]–[119] the primary judge provides reasons why, on balance, a de facto relationship was not inferred on the evidence provided by the appellant. These parts of the reasons show the primary judge had ample factual basis to reach his ultimate conclusion.
Ground 5 does no more than contend the primary judge should have reached a different factual conclusion because there was evidence adduced by the appellant which could have led him to different conclusions. But that is not a basis for appellate intervention. Even if different factual conclusions were open on the evidence, the appellant must go further and show the primary judge’s findings were erroneous. He failed to do so.
Ground 5 fails.
Grounds 7 and 8
These grounds are essentially challenges to the weight given by the primary judge to parts of the appellant’s evidence. The appellant argues his evidence should have been given greater weight. But appellate challenges to the weight a judge at first instance attaches to various pieces of evidence are difficult to sustain (Hedlund at [36]–[37] and [64]). As pointed out earlier, the appellant must persuade this Court that the primary judge’s conclusions were glaringly improbable, contrary to compelling inferences, or demonstrably wrong in the face of incontrovertible facts or uncontested testimony. Arguing greater weight could or should have been attached to specific pieces of evidence will not achieve this.
Ground 8 also asserts a failure to evaluate evidence in favour of the relationship “adequately”. It is important here to advert to the provisions of s 4AA(3) and s 4AA(4) of the Act, which provide relevantly:
4AA De facto relationships
...
Working out if persons have a relationship as a couple
...
(3) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4) 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.
The primary judge had a statutory mandate to distribute weight in the evidence as seemed appropriate.
The appellant did not argue the primary judge’s factual conclusions, adverted to in Grounds 7 and 8, were glaringly improbable or demonstrably wrong, or produced an unreasonable or plainly unjust result. On the contrary he simply argues some factual matters were in tension with the primary judge’s findings. That, of itself, does not demonstrate that the primary judge erred in the ultimate conclusions that his Honour reached.
Having considered the whole of the evidence before the primary judge (with appropriate deference to the advantage that his Honour had in observing the witnesses) we are not persuaded that his Honour erred in finding that no de facto relationship existed between the parties.
Grounds 7 and 8 fail.
CONCLUSION
The Application in an Appeal and the appeal will be dismissed.
COSTS
The respondent applied for costs in the event the appeal was unsuccessful. The award of costs is governed by s 117 of the Act, and costs may be ordered where a justifying circumstance is demonstrated, taking account of the matters set forth in s 117(2A). One of those matters is whether a party has been wholly unsuccessful. That describes the position of the appellant. We are satisfied an order for costs should be made in favour of the respondent.
The total costs sought by the respondent are $48,576.45, which includes the costs of the unsuccessful Application in an Appeal. If ordered, this amount would constitute a full indemnification for the respondent. The award of indemnity costs is exceptional. We do not consider an award of indemnity costs is warranted in the circumstances of this case.
The Court has a discretion to fix an amount of costs pursuant to r 12.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). To save the parties any further expense, it is desirable to fix an amount of costs which is fair, reasonable and proportionate (r 12.08). We consider $35,000 is the appropriate amount, and will make orders accordingly.
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Harper, Riethmuller & Strum. Associate:
Dated: 19 March 2025
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