RENNIE & DRISCOLL
[2015] FamCA 467
•5 June 2015
FAMILY COURT OF AUSTRALIA
| RENNIE & DRISCOLL | [2015] FamCA 467 |
| FAMILY LAW – DEFACTO RELATIONSHIP – where preliminary issue of whether such a relationship existed such as to found jurisdiction – consideration of general principles – declaration that no defacto relationship existed. FAMILY LAW – COSTS – where respondent wholly successful –consideration of general principles – where no circumstances justifying indemnity cost order – cost ordered as agreed or as assessed on a party /party basis. |
| Family Law Act 1975 (Cth) ss 4AA, 90RD, 117 |
| Baker & Landon [2010] FMCAfam 280 Bele & Vaughan (Costs) [2012] FamCAFC 198 Jonah & White [2011] FamCA 221 Moby & Schulter [2010] FLC 93-447 Ricci & Jones [2011] FamCAFC 222 |
| APPLICANT: | Mr Rennie |
| RESPONDENT: | Mr Driscoll |
| FILE NUMBER: | SYC | 6871 | of | 2014 |
| DATE DELIVERED: | 5 June 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 5 June 2015 |
REPRESENTATION
| SOLICITOR FOR THE RESPONDENT: | Adams & Partners Lawyers |
Orders
UPON NOTING THAT THERE IS NO APPEARANCE BY OR ON BEHALF OF THE APPLICANT AND UPON FURTHER NOTING THAT THE APPLICANT HAS BEEN INFORMED OF THE LISTING TODAY IN ACCORDANCE WITH ORDERS MADE ON 27 APRIL 2015, IT IS ORDERED THAT:
The Initiating Application filed on 31 October 2014 be struck out and dismissed.
The matter otherwise proceed to undefended hearing in respect of the orders sought by the Respondent in his response filed on 17 December 2014.
IT IS DECLARED THAT:
Pursuant to s 90RD of the Family Law Act 1975 (Cth) there was no de facto relationship between the Applicant and Respondent at any time.
IT IS FURTHER ORDERED THAT:
The Applicant pay the Respondent’s costs on a party/party basis as agreed or assessed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rennie & Driscoll has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 6871 of 2014
| Mr Rennie |
Applicant
And
| Mr Driscoll |
Respondent
REASONS FOR JUDGMENT
These are proceedings commenced by the applicant, Mr Rennie, on 31 October 2014. In that application he seeks, somewhat perplexingly, the following order:
I, [Mr Rennie], am seeking funds that I have spent on [Mr Driscoll] recovered. I am seeking $100,000.
It appears from the short affidavit filed by the applicant that his relief is founded upon an assertion of a de facto relationship between the applicant and the respondent, as contemplated by s 4AA of the Family Law Act 1975 (Cth) (‘the Act’).
The respondent filed a response on 17 December 2014, and in that response the respondent seeks the following orders:
(1) That the Court declare that the applicant and the respondent were not living in a de facto relationship within the definition of section 4AA of the Family Law Act.
(2) That the initiating application filed on 18 December 2014 be dismissed.
(3) That the applicant pay the respondent’s costs on an indemnity basis.
In the circumstance of the applicant’s failure to appear, having had notice of this hearing, his application has been struck out and dismissed.
The respondent relies upon his affidavit filed on 17 December 2014.
The respondent contends that he and the applicant were not in a de facto relationship.
He met the applicant in January 2013 when the applicant commenced to live on the same property where the respondent was renting rooms. It appears that the applicant was residing in a caravan on that property whilst the respondent was residing in a room in the cottage on the property. The respondent was paying to his landlord $50 a week by way of rent and he understands that the applicant had his own arrangement with the landlord in relation to rent relating to the placement of his caravan on the landlord’s premises.
The parties commenced a casual sexual relationship in or about August 2013 on an intermittent basis several times a week, and those occasions occurred in the applicant’s caravan late in the evening. The respondent says that the casual relationship continued until about October 2014, notwithstanding that in January 2014 the applicant had been evicted from the premises where he had previously lived in his caravan.
The parties, from August 2013 until the applicant was evicted from the premises where his caravan were situated, would go out occasionally – about once a month – to a local club or to the city.
The applicant had been in a previous relationship and there were two children of that relationship, and on occasions the respondent met the applicant’s girlfriend and the two children of that relationship when they attended, on occasion, at the premises where the applicant’s caravan was situated.
From the period June 2014 until late August 2014, there was no communication or relationship between the parties, but in late August 2014, that relationship recommenced on the basis of the casual sexual relationship as had existed before. The respondent asserts the relationship continued until 31 October 2014 and ended on or about that date following an argument between he and the applicant.
The respondent and the applicant never resided together.
They, when living in or on the same rental premises, never ate or prepared meals together.
They never slept in the same bed, save for occasions when there was a casual sexual relationship.
There was no financial interdependence, and it was the respondent’s understanding that the applicant was in receipt of a single disability pension at all relevant times.
The respondent provided no financial assistant to the applicant; nor did they purchase any joint property or consider purchasing any joint property.
The Court’s jurisdiction, if it is to be exercised in proceedings between those who have been in, or asserted to be in, a de facto relationship, requires the Court to be satisfied as to a number of threshold matters, as prescribed in the legislation. The first of those threshold matters, of course, is that there is a de facto relationship as defined under the provisions of the Act.
Section 4AA of the Act sets out the meaning of a de facto relationship:
(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.
Paragraph (c) has effect subject to subsection (5).
Working out if persons have a relationship as a couple
(2) Those circumstances may include any or all of the following:
(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.
(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.
(5) For the purposes of this Act:
(a) a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and
(b) a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.
The requirements of s 4AA were considered by Riethmuller FM, as he then was, in Baker & Landon [2010] FMCAfam 280. His Honour observed:
11. The requirements of s.4AA, in summarised form, require a decision as to whether the parties ‘have a relationship living together on a bona fide domestic basis’. In coming to this decision the court must have regard to ‘all of the circumstances of the relationship’, which may include the factors set out in s.4AA(2). Importantly, no finding as to a particular aspect of the relationship appears to be determinative (s.4AA(3)) nor does the section attempt to prescribe the weight to be attached to any particular factor (s.4AA(4)). As a result the definition cannot be said to be closely proscribed.
The various criteria in the consideration of whether a relationship existed are set out in subsection (2) of s 4AA of the Act.
Briefly, they are considered below.
The duration of the relationship: there is no evidence before the Court that the parties were in a de facto relationship at all or for any discrete period. Accordingly, this is an irrelevant consideration.
The nature and extent of their common residence: the closest the parties appear to have resided together is with the applicant residing in a caravan on the same premises where the respondent rented a room in the cottage. Accordingly, that was the whole extent of at least some proximity to common residence, but the inescapable conclusion is that there was no aspect of common residence in the relationship between the parties at all. The question of common residence has been considered in a number of authorities: see Moby & Schulter [2010] FLC 93-447 and the cases referred to therein. In Jonah & White [2011] FamCA 221, Murphy J also considered the concept of common residence and the requirements of s 4AA of the Act as follows:
48. His Honour’s approach might be seen to embrace Powell J’s approach in Simonis v Perpetual Trustee C Ltd at 685 where Powell J held that the (then) definition of “living with ... on a bona fide domestic basis” (in s 6 of the Family Provision Act 1982 (NSW)) was “a single composite expression of a comprehensive notion or concept, and therefore has to be approached by considering the expression as a whole and not in several parts”.
49. In Hayes v Marquis[2008] NSWCA 10, McColl JA held that the effect of earlier decisions of the New South Wales courts, including the Court of Appeal, meant that “practically, [it is] ... necessary to consider the evidence as a whole, not under isolated headings” (citing Barnes v de Jesus [2001] NSWSC 19 at [26] per Windeyer J). Her Honour went on to hold that “... the concept of ‘living together’ will always be something different from living together as a couple, one of the critical requirements for a de facto relationship”. There, her Honour was distinguishing de facto relationship from a “close personal relationship”, an expression which is separately defined in the Property (Relationships) Act 1984 (NSW).
50. In the same case, Einstein J held (albeit in the respect of the definition of the “close personal relationship” in s 5(1)(b) of that NSW Act) that:
166. Upon its proper construction the expression “living together” in the context of the instant legislation is to be understood as referring to the sharing of a home: that is to say to co-habit/to dwell together. The test is an objective one. It involves assessing the nature and extent of the claimed common residence. To live together requires that the two adult persons be seen as regarding the place or places in which they live as “their home”. Both of them might not always be found in that home because from time to time family or business requirements or similar may require one or both to spend some time elsewhere cf: Re Fagan deceased [1980] 5 FamLR 813 where Jacobs J observed [at 822] that “there may be states of cohabitation where (the partners) see as much of each other as they can”, to which I would add – “in the circumstances”. But the dominant parameter will be whether or not the individuals concerned may be discerned to regard the premises in question as their home and in so doing to be acting reasonable.
51. That passage was cited with approval by White J in the NSW Supreme Court in Vaughan v Hoskovich [2010] NSWSC 706. His Honour said in respect of the definition of de facto relationship within the NSW legislation that:
“What is clear from ss 4(3) is that satisfaction of the requirement that the persons live together as a couple does not require that they share a common residence on a full time basis. There are of course many examples of people who can be said to live together, although one or the other is away for long periods. A partner who takes an overseas posting, or who goes to sea in the course of his or her occupation for long periods, will not cease to live with his or her partner because of extended absences ...”
52. The approach just referred to is consistent with decisions of the Queensland Court of Appeal. (See e.g. PY v CY[2005] QCA 247; KQ v HAE[2006] QCA 489; FO v HAF[2006] QCA 555).
53. It is, however, important to bear in mind that the emphasis on common residence (whether for varying periods of time or not) is but one of the specific factors enumerated within s 4AA of the Act. The section specifically provides that no particular finding in respect of that matter (or indeed any other specified circumstance) is “to be regarded as necessary in deciding whether the persons have a de facto relationship”.
54. Nevertheless, as has been observed in respect of that specific consideration in the NSW legislation:
[50] One of the circumstances of the relationship to be taken into account under s 4(2) is para (b), namely the nature and extent of common residence. Subsection 4(3) provides that no finding in respect of any of the matters mentioned in subss (2)(a)-(i) is to be regarded as necessary for the existence of a de facto relationship. That is curious as it seems difficult to see how parties could be said to be living together as a couple if they never had a common residence. However, in Piris v Egan[2008] NSWCA 59, Campbell J said (at [146]) that:
[146] ... it should be recalled that the list of “circumstances” in s 4(2) are reminders of matters that possibly might be relevant in deciding whether two people are in a de facto relationship, but do not state its essence. The essence is to be found in the definition in s 4(1). If two people do not “live together as a couple” they do not satisfy the definition of being in a de facto relationship, regardless of what might be the situation concerning the various “circumstances” listed in s 4(2).
(Vaughan v Hoskovich, above).
55. Again, the approach there exemplified can be seen to be consistent with authorities in Queensland where a very similar legislative regime has been considered. Underlying those authorities is a necessity to establish the existence of “a relationship as a couple living together on a genuine domestic basis” informed by, but not necessarily determined solely by, the individual findings with respect to the list of circumstances.
56. In KQ v HAE[2006] QCA 489; [2007] 2 Qd R 32 the Queensland Court of Appeal (McMurdo P, Keane and Holmes JJA) held in a joint judgment:
[19] These considerations all lend support to the view taken in earlier cases that a “de facto relationship” will not be established for the purposes of Pt 19 of the Property Law Act [1974] [PLA] unless it can be seen that “the parties have so merged their lives that they were, for all practical purposes, living together as a married couple. (Citing Thompson v Department of Social Welfare[1994] 2 NZLR 369 at 374; Mao v Peddley [2002] DFC 77,515 at 77, 522 and K v H-J [2006] QSC 168 at [67].)
57. The Court also held in that case:
[18] Obviously, the scope of the expression “de facto relationship” in Pt 19 of the PLA is not strictly limited by the genesis of the expression in popular speech. For example, the provisions of Pt 19 are not confined to relationships between men and women. Nevertheless, the nature of the association involved in the marriage relationship is instructive in this context. It is clear from s 32DA(4) of the Acts Interpretation Act that Pt 19 of the PLA is not concerned with the relationship between people who merely live in the same household and share living expenses; the PLA is not concerned with the relationship between friends who share a household, or with that between carer and patient. Further, the fact that two people have a sexual relationship will not suffice to establish that they are “de facto partners”. This is clearly so, by reason of the fundamental requirement that the parties must be “living together as a couple on a genuine domestic basis”.
...
[20] It may also be accepted that a continuing cohabitation in a common residence is not necessary to establish the continuation of a “de facto relationship”, at least where the parties have lived together and have not effected a permanent separation. Nevertheless, the definition of “de facto relationship” suggests that, usually, the parties should have, at some stage, been “living together as a couple on a genuine domestic basis”. The fact that the parties have never lived together in a common abode must be acknowledged to be an indicator that they have not “lived together as a couple on a genuine domestic basis”. This indication will be especially significant where the parties have not shared the common burden of maintaining a household. It would be a wholly exceptional case in which one could conclude that a man and a woman, who have never lived together as husband and wife in a common residence, and who have never made provision for their mutual support, have been “living together as a couple on a genuine domestic basis”. That conclusion is not justified by the mere circumstance that the parties, or one of them, at some stage, intended eventually to marry. Such a case is one where friendship, or even courtship, has not matured into the commitment whereby the parties have so merged their lives that they were, for all practical purposes, living together as a married couple.
58. It is in my opinion instructive that the Commonwealth legislature did not provide for relief of the type contemplated by Part VIIIAB of the Act in circumstances where one party has, by their words or actions, provided care, love or support to another or, indeed, in circumstances where one party has induced in the other an expectation of a relationship of greater commitment than that which transpired. Rather, the legislature has made provision for that relief upon satisfaction of the jurisdictional fact that a relationship of a particular, statutorily-defined, type exists.
59. In that respect it seems to me also instructive that the Commonwealth legislature did not provide for relief of that type in circumstances where two people were parties to, for example, a “domestic relationship”, or, as in New South Wales, a “close personal relationship” but, rather, only where parties were in a “de facto relationship” as defined.
60. In my opinion, the key to that definition is 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.
61. Differences in nomenclature tend to confuse the picture rather than illuminate it. For example, counsel for the applicant submitted – in my view correctly – that a relationship which one party regards as “an affair” might in fact be a de facto relationship as defined. So, too, a woman who might be described as “a kept woman” (an expression accepted by the respondent upon suggestion from counsel for the applicant) might, similarly, describe one party’s perception of the relationship but, when all factors and the circumstances are considered, the relationship might nevertheless meet the definition of a “de facto relationship.
His Honour’s observations met with the approval of the Full Court in Ricci & Jones [2011] FamCAFC 222.
Whether a sexual relationship existed: It is conceded by the respondent there was a casual sexual relationship of sorts, interrupted by a significant period in 2014; however, the existence of a sexual relationship of such a fractured nature certainly, in this case, is not an indicia of there being a de facto relationship.
The degree of financial independence, dependence, or any arrangements for financial support between them: The evidence of the respondent is unequivocal. There was no financial dependence or interdependence and there were no arrangements for financial support between himself and the applicant.
The ownership, use, and acquisition of property: There is unequivocal evidence from the respondent that there was no joint ownership, use, and acquisition of property. The parties at all times kept their financial circumstances separate.
The degree of mutual commitment to a shared life: There is simply no evidence from the respondent that supports any aspect of this factor. It is of no assistance in considering overall whether there is or was a de facto relationship between the parties.
Whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship. There is no evidence as to this.
The care and support of children: This is not relevant in the context of the consideration of the relationship between these parties.
The reputation and public aspects of the relationship: Save for what appears to be the odd attendance at a club or into the city, the parties’ relationship seemed to have no public aspect to it at all. It is inferred from the evidence of the respondent that the nature of their physical relationship was mostly a clandestine one, not known to third parties. Once again, this consideration is of no assistance in supporting any contention that there was a defacto relationship.
The onus of proof
In proceedings such as this, the onus of establishing the relationship usually falls upon that party who seeks to contend the relationship exists. The applicant adduces no evidence, his application having been struck out, and the respondent adduces evidence in support of his contention that there was no relationship.
Overall, having regard to the evidence and for the reasons set out above, the Court is not satisfied that the parties were in a de facto relationship at any time, and accordingly, the Court declares that pursuant to s 90RD of the Act there was no de facto relationship between the applicant and respondent at any time.
Costs
Otherwise, the respondent seeks an order for costs. The application for costs is set out in his Response as filed. The applicant is thus on notice of such application.
The provisions relating to costs are set out in s 117 of the Act and provide at least as a threshold position that each party to proceedings under the Act shall bear his own costs.
However, if the court is of the opinion that there are circumstances to justify in doing so the court may make an order for costs or for security for costs: s 117(2).
The relevant considerations in the exercise of the court’s discretion to displace the general rule are set out in s 117(2A) and they are, briefly:
The financial circumstances of each of the parties to the proceedings: The financial circumstances of the applicant are not known save for the contention that at all relevant times he has been in receipt of a disability pension. The financial circumstances of the respondent are such that he concedes in his affidavit that in early 2003 he received a significant capital sum from the sale of his parents’ home.
Whether any party is in receipt of a grant of aid: This is not a relevant factor in this matter.
The conduct of the parties to the proceedings as prescribed in subsection (c): That aspect really relates to questions of interlocutory conduct and is not relevant in the present consideration.
Whether the proceedings were necessitated by the failure of a party to comply with previous orders: This is not relevant in the context of this matter.
Whether any party to the proceedings has been wholly unsuccessful in the proceedings: This, of course, is the most relevant circumstance in this case. The applicant filed an application on 31 October 2014 and thereafter it appears that he appeared in person before the court on 18 December 2014, being the first return date of his application. On that date, as a consequence of the number of witnesses proposed to be called, proceedings were transferred to this Court and were listed before a Registrar on 30 March 2015. On 30 March 2015 there was no appearance by the applicant and the matter was placed in a list of matters awaiting trial.
Subsequently, proceedings were listed before this court on 27 April 2015, on which date there was no appearance by, or on behalf of, the applicant. On that date, certain directions were made for the matter to proceed to hearing in relation to the existence or otherwise of a de facto relationship on 5 June 2015. It was directed that in the event there was no appearance by or on behalf of the applicant the matter would proceed to an undefended hearing.
As referred to above, the respondent’s solicitor has notified the applicant of the listing today. There was no appearance by or on behalf of the applicant.
As a consequence, the matter proceeded undefended and the respondent obtained the declarations sought by him as to the non-existence of the de facto relationship between the applicant and the respondent.
The respondent has been wholly successful. This factor is persuasive and is sufficient to justify an order for departure from the usual rule.
Whether any party in the proceedings has made an offer in writing to the other: There is no evidence of any such offer in the context of these proceedings.
Such other matters as the court considers relevant: There are no other relevant matters contended for by the respondent.
In all of the circumstances, the court is satisfied that it’s appropriate to make an order for costs.
The respondent seeks costs on an indemnity basis. In Bele & Vaughan (Costs) [2012] FamCAFC 198 Strickland J outlined the general principles applicable to indemnity costs at [26] to [28]:.
26. A useful recent discussion of the question of indemnity costs is to be found in the decision of the Full Court in D & D (Costs) (No 2) (2010) FLC 93-435. There the Full Court reviewed extensively earlier authorities including Limousin v Limousin (Costs) (2008) 38 Fam LR 478 and Kohan and Kohan (1993) FLC 92-340, and also Sheppard J’s decision in Colgate-Palmolive Co & Another
v Cussons Pty Ltd (1993) 118 ALR 248.27. The ordinary rule is that an order for costs is calculated on a party/party basis, and it emerges from the authorities referred to above that to depart from that rule exceptional circumstances need to be demonstrated.
28. As to what might constitute an exceptional circumstance, reference can be made to the oft-cited decision of Sheppard J in Colgate-Palmolive Co & Another v Cussons Pty Ltd where his Honour detailed circumstances that might qualify. Usefully, Holden J in Munday v Bowman (1997) FLC 92-784 at 84,660 drew from the decision of Sheppard J the following examples:
(a) Where it appears that an action has been commenced or continued in circumstances where a party properly advised should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive or because of some wilful disregard of the known facts (see Fountain Selected Meats (Sales) Pty. Ltd. v. International Produce Merchants Pty. Ltd. [1988] 81 ALR 397).
(b) Making allegations of fraud, knowing them to be false, and the making of irrelevant allegations of fraud (see Fountain Selected Meats (Sales) Pty. Ltd. (supra)).
(c) Evidence of particular misconduct causing loss of time to the court and to other parties (see Tetijo Holdings Pty. Ltd. v. Keeprite Australia Pty. Ltd (unreported, Federal Court,
3 May 1991)).(d) The making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (see Ragatta Developments Pty. Ltd. v. Westpac Banking Corporation (unreported, Federal Court, 5 March 1993)).
(e) An imprudent refusal of an offer to compromise.
Regrettably the applicant commenced his application whilst unrepresented. His application, as it turns out, was ill-founded as a consequence of the court’s findings as to fact. Yet the ordinary rule is that an order for costs is calculated on a party/party basis, and it emerges from the authorities referred to above that to depart from that rule exceptional circumstances need to be demonstrated.
There are no such circumstances justifying an order for indemnity costs.
Costs will be ordered as agreed or as assessed on a party/party basis.
Orders will be made accordingly.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 5 June 2015.
Associate:
Date: 5 June 2015
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