Sandison & Thornhill (No 2)

Case [2023] FedCFamC1F 262

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Sandison & Thornhill (No 2) [2023] FedCFamC1F 262

File number: NCC 1503 of 2016
Judgment of: HENDERSON J
Date of judgment: 14 April 2023
Catchwords: FAMILY LAW – DE FACTO RELATIONSHIPS – Existence of a de facto relationship – Where the applicant asserts the parties were in a de facto relationship for approximately two and a half years – Where the respondent denies a de facto relationship existed between the parties – Where the parties have a child together and were in a sexual relationship – Where the applicant’s evidence in these proceedings is contradictory to her evidence in previous family law proceedings and representations made to Centrelink – Credit of the applicant impugned – Adverse inference drawn against the applicant in not calling her mother as a witness – Finding the applicant’s evidence and representations made in previous family law proceedings are consistent with the respondent’s case that no de facto relationship ever existed between them – Finding that section 4AA of the Family Law Act 1975 (Cth) does not require parties to have lived in the same residence as a requirement to enable a finding of the existence of a de facto relationship – Declaration made that no de facto relationship ever existed – Orders made for filing of written submissions in relation to costs – Orders made directing the parties to address whether the applicant’s legal representatives should be liable for some or all of the respondent’s costs.
Legislation:

Family Law Act 1975 (Cth) ss 4AA, 4AA(1)(c), 4AA(2)(a), 4AA(2)(b), 4AA(2)(c), 4AA(2)(d), 4AA(2)(e), 4AA(2)(f), 4AA(2)(h), 4AA(2)(i), 90RD, 90SB(a), 90SB(b), 90SM.

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 67–68

Interpretation Act 1987 (NSW) s 21C

Property (Relationships) Act 1987 (NSW) s 4

Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) r 4(c)

Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) r 4.1.3

Federal Circuit and Family Court of Australia, Family Law Case Management – Central Practice Direction, 28 November 2022

Cases cited:

[2014] FCCA 589

Fairbairn v Radecki (2022) 64 Fam LR 604; [2022] HCA 18

Herford & Berke (No 2) (2019) FLC 93-919; [2019] FamCAFC 182

Jonah & White (2011) 45 Fam LR 460; [2011] FamCA 221

Jonah & White (2012) FLC 93-522; [2012] FamCAFC 200

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8

Mayson & Wellard (2021) 64 Fam LR 111; [2021] FamCAFC 115

Moby & Schulter (2010) FLC 93-447; [2010] FamCA 748

Ricci & Jones [2011] FamCAFC 222

Sandison & Thornhill [2019] FamCA 85

Sandison & Thornhill [2022] FedCFamC1F 894

Sinclair & Whittaker (2013) FLC 93-551; [2013] FamCAFC 129

Smoje v Forrester [2017] NSWCA 308

Yesilhat v Calokerinos [2015] NSWSC 1028

Yesilhat v Calokerinos [2021] NSWCA 110
Division: Division 1 First Instance
Number of paragraphs: 267
Date of hearing: 13–15 March 2023
Place: Sydney
Counsel for the Applicant: Mr Mueller
Solicitor for the Applicant: Lindeman Lawyers
Counsel for the Respondent: Ms Gillies SC
Solicitor for the…

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AGLC
Sandison & Thornhill (No 2) [2023] FedCFamC1F 262
Case
[2023] FedCFamC1F 262
Decision Date

CaseChat Overview and Summary

The case of Sandison & Thornhill (No 2) involved a dispute over whether the parties had been in a de facto relationship. The applicant sought a declaration that such a relationship existed, which the respondent denied. The matter was heard in the Family Court of Australia. The primary legal issue was whether the applicant had established the existence of a de facto relationship as defined by the Family Law Act 1975. This required the court to assess the credibility of the parties' evidence and determine if the relationship met the statutory criteria.

The court found the applicant's evidence to be inconsistent and lacking in credibility, particularly when compared to the respondent's consistent and corroborated account. The applicant had provided conflicting accounts in previous proceedings and to Centrelink, which undermined her credibility. The court noted the importance of the credit of the parties in determining the existence of a de facto relationship, as established in previous case law. The court dismissed the applicant's application, finding that she had failed to prove the existence of a de facto relationship. The court also expressed concerns about the competency of the applicant's legal representatives, who had not adequately addressed significant contradictions in the applicant's case.

The court ordered that written submissions be filed regarding the costs associated with the proceedings, including whether the applicant's legal representatives should be liable for any costs awarded to the respondent. The court highlighted the importance of legal representatives acting competently and diligently, in accordance with the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 and the Legal Profession Uniform Conduct (Barristers) Rules 2015. The court made a declaration that the parties were never in a de facto relationship, effectively concluding the matter in favour of the respondent.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Credit findings in this matter, despite submissions from counsel for the applicant that they would not impact on my decision, are crucial. My decision is based upon which story I accept; the respondent’s consistent story or the applicant’s inconsistent story. As the Full Court said in Ricci & Jones:61We agree with Murphy J [in Jonah & White [2011] FamCA 221] at paragraph 39 that the making of a declaration that a de facto relationship existed does not involve the exercise of discretion but rather a consideration of the facts which may found the jurisdiction.[69](Bold emphasis added)[69] Ricci & Jones [2011] FamCAFC 222 at [61], citing Jonah & White (2011) 45 Fam LR 460 at [39]. The respondent’s story is the only credible story, and for all these reasons I dismiss her application, and make a declaration that the parties were never in a de facto relationship.CONCLUSION OF THE THRESHOLD ISSUE As previously stated, the applicant has failed to establish that she and the respondent were in a de facto relationship at any time. Given that the applicant was unsuccessful, I will make procedural orders for the filing of written submissions in relation to costs. I discuss below my concerns regarding the competency of the applicant’s legal representatives, and I will make an order that the submissions of both the respondent and the applicant address the issue of whether the applicant’s legal representatives should be liable, whether solely or jointly, for any costs made in favour of the respondent, if such an order was made. I note the written submissions should comply with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), in particular, Chapter 12.OTHER ISSUES Despite my findings that there was clear evidence that demonstrated that these parties were never in a de facto relationship, the applicant pursued her application. The applicant has known for some time, particularly since early 2020, that the respondent has opposed her assertion that they were a de facto relationship and had identified significant contradictions in the applicant’s case, which were pointed out to her legal representatives at the commencement of the hearing and not addressed. It is even more concerning that these contradictions are consistent with the applicant’s evidence filed in this Court in the 2014 proceedings and representations to Centrelink, which contradict what she asserted in her evidence before this Court in these proceedings. Further, the Case Outline prepared on the applicant’s behalf did not even address these fundamental flaws in her case and was silent on how I was to deal with these contradictions. I am concerned that the applicant’s case proceeded to a final hearing despite clear evidence from the applicant herself that a de facto relationship never existed between the parties and where it should have been apparent to competent legal representatives that the credit of the parties would be crucial to my findings of fact.

Evidence

Evidence Before The Court

The applicant’s evidence was an attempt to cover up what she now asserts were lies in the 2014 proceedings with more recent inventions. This conduct is at the extreme end of credibility and has only frustrated the Court processes and proper administration of justice, in that a hearing at cost to the respondent and the public was necessary to demonstrate that the story the applicant told in these proceedings is but a fabrication.Affidavit evidence and exhibits The only evidence before the Court that could support the existence of a de facto relationship, within the meaning of the Act,[6] is that contained in the applicant’s affidavit together with her oral evidence, as the entirety of the remaining evidence, being the respondent’s case and oral evidence, did not support the existence of a de facto relationship. The facts in her affidavit were inconsistent with her affidavits deposed in the 2014 proceedings and there were inconsistencies in her oral evidence.[6] Family Law Act 1975 (Cth) s 4AA. Despite this glaring flaw in her case, counsel for the applicant submitted that as to the question of the existence of a de facto relationship is a matter of law, on the accepted facts and laying great emphasis on the fact that the parties had a child, I could find a de facto relationship existed between them. The flaw in this argument is that I must, where there is a contest, as there is here, determine the facts enabling me to make a finding as to a matter of law. Further, the applicant must prove the existence of a de facto relationship and it is not for the respondent to prove a de facto relationship did not exist.[7] The applicant’s credibility was shattered at the hearing, as will become apparent, resulting in the respondent’s evidence being preferred and ipso facto the applicant failing to prove her case.[7] Mayson & Wellard (2021) 64 Fam LR 111 at [29]–[30] (Strickland, Ryan and Kent JJ). The accepted facts are:(1)The parties agreed to have a child;(2)The parties did not share finances;(3)The respondent gave the applicant two rings; one ring in late 2012 and one in late 2014. The applicant asserted the 2012 ring was an eternity ring and the 2014 ring was an engagement ring. The respondent agreed he purchased these rings for the applicant but denied her assertions as to their meaning;(4)From late 2012, before X’s birth, the respondent paid $1,000 per week to the applicant, which continued until late 2014 when it reduced to $420;(5)The applicant describes a family celebration with her extended family, but that the parties did not tell the anyone at the function about the applicant’s pregnancy;(6)The applicant and respondent attended events together such as birthday parties for her aunt, cousins and grandmother, a dinner party, her grandmother’s funeral, Y’s first day at school and events with the extended Sandison family;(7)The respondent attended various gynaecological appointments with the applicant, and was with her when she went into premature labour;(8)The respondent caused X and the applicant to be covered under his health insurance;(9)The respondent stayed overnight with the applicant on Christmas Eve in 2012 and participated in exchanging gifts with the applicant and her children on Christmas Day;(10)After X’s birth, the respondent attended the applicant’s house more frequently to assist in the care of X, which was approximately “four to five times per week in 2013”;(11)The respondent paid $15,000 directly into the trust account of the applicant’s solicitor in the 2014 proceedings to pay for an expert’s fee;(12)The parties engaged in sexual activity; and(13)The respondent provided the applicant with a loan of $20,000 in mid-2014 when the applicant moved into the Suburb T property, which the applicant repaid.These are matters the respondent accepts.

Decision

Reasons for decision

The respondent’s story is the only credible story, and for all these reasons I dismiss her application, and make a declaration that the parties were never in a de facto relationship.CONCLUSION OF THE THRESHOLD ISSUE As previously stated, the applicant has failed to establish that she and the respondent were in a de facto relationship at any time. Given that the applicant was unsuccessful, I will make procedural orders for the filing of written submissions in relation to costs. I discuss below my concerns regarding the competency of the applicant’s legal representatives, and I will make an order that the submissions of both the respondent and the applicant address the issue of whether the applicant’s legal representatives should be liable, whether solely or jointly, for any costs made in favour of the respondent, if such an order was made. I note the written submissions should comply with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), in particular, Chapter 12.OTHER ISSUES Despite my findings that there was clear evidence that demonstrated that these parties were never in a de facto relationship, the applicant pursued her application. The applicant has known for some time, particularly since early 2020, that the respondent has opposed her assertion that they were a de facto relationship and had identified significant contradictions in the applicant’s case, which were pointed out to her legal representatives at the commencement of the hearing and not addressed. It is even more concerning that these contradictions are consistent with the applicant’s evidence filed in this Court in the 2014 proceedings and representations to Centrelink, which contradict what she asserted in her evidence before this Court in these proceedings. Further, the Case Outline prepared on the applicant’s behalf did not even address these fundamental flaws in her case and was silent on how I was to deal with these contradictions. I am concerned that the applicant’s case proceeded to a final hearing despite clear evidence from the applicant herself that a de facto relationship never existed between the parties and where it should have been apparent to competent legal representatives that the credit of the parties would be crucial to my findings of fact. The Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) states the following:4 Other fundamental ethical duties4.1 A solicitor must also—…4.1.3deliver legal services competently, diligently and as promptly as reasonably possible,[70](Underline emphasis added)[70] Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) r 4.1.3. The Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) contains a similar rule:4 PrinciplesThese Rules are made in the belief that:…(c)barristers as specialist advocates in the administration of justice, must act honestly, fairly, skilfully, bravely and with competence and diligence,[71](Underline emphasis added)[71] Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) r 4(c).

Ratio Decidendi

Legal Principle Established

The Court only has jurisdiction under section 90SM of the Act if there has been a finding that a de facto relationship existed:90SM Alteration of property interests(1)In property settlement proceedings after the breakdown of a de facto relationship … Section 4AA of the Act relevantly provides the definition of a de facto relationship:4AA De facto relationshipsMeaning of 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. The case law below is clear. I am not constrained or confined to the indicia in section 4AA(2)(a)–(i) in determining whether a de facto relationship existed or exists and these factors are guidelines to be considered in “all the circumstances of their relationship”. Counsel for the applicant referred to the phrase of “coupledom” utilised by Murphy J in Jonah & White,[31] and submitted that this phrase is not what is required to establish a de facto. I agree, but such a point has already been determined by this Court in Herford & Burke (No 2),[32] where the Full Court of the Family Court of Australia (as it was then known) (“the Full Court”) relevantly said:[31] (2011) 45 Fam LR 460 (Murphy J) (“Jonah & White”).[32] (2019) FLC 93-919 (Ainslie-Wallace, Ryan and Aldridge JJ).14However, before considering the challenges to his Honour’s orders, we must observe that his Honour’s reference at [96] to Murphy J’s concept of “‘coupledom’ which involves the merger of two lives” cannot pass uncorrected.15As was said by the Full Court in Sinclair [(2013) FLC 93-551], the Full Court in Jonah & White (2012) FLC 93-522 (“Jonah & White”) did not adopt Murphy J’s characterisation of the necessary relationship as “coupledom”. The Full Court in Crick & Bennett (2018) FLC 93-832 at [13], somewhat regrettably had to reiterate what had been said in Sinclair. The Full Court in Sinclair said:92.In both written and oral submissions the appellant submitted that the facts did not demonstrate “the manifestation of coupledom” or that there had been “the merger of two lives”. These phrases emerge from the decision of Murphy J in Jonah v White [2011] Fam LR 460 at 471 where his Honour said: ……93. It is important to note that his Honour’s comments were made in the context of the facts of the matter that was before him. It is clear from reading the judgment as a whole that his Honour had the statutory definition firmly in mind at all times. When dismissing the appeal from his Honour’s decision the Full Court did not disagree with his Honour’s statements of principle but did not apply anything other than the statutory test (Jonah & White (2012) FLC 93 – 522) …16It bears repeating too that in dismissing the appeal from Murphy J’s decision, the Full Court in Jonah & White said at 86,682 that “[i]t is immediately apparent that the touchstone for the determination of whether a de facto relationship exists is the finding that the parties to it are a “couple living together on a genuine domestic basis”.17 Indeed, as the Full Court said in Sinclair:94. Comments made in the course of discussing facts are not to be elevated to the status of the provisions of the statute or substituted for the statutory test. This is because, taken on their own, they either add nothing to the statutory test or, if they do, they are adding an impermissible gloss. Thus it is not appropriate to consider the facts other than in the light of the statutory test.18Sinclair itself has been followed by subsequent Full Courts (Cadman & Hallett (2014) FLC 93-603; Onslow & Onslow [2016] FamCAFC 7; Fleming & Schmidt [2017] FamCAFC 12; Sha & Cham [2017] FamCAFC 161; Cuan & Kostelac (2017) FLC 93-801). To repeat and rely on statements made at first instance which have been overtaken and corrected by several Full Courts, as the primary judge did here, is to invite error.[33](Footnotes omitted)[33] (2019) FLC 93-919 at [14]–[18].