Sha & Cham
[2017] FamCAFC 161
•16 August 2017
FAMILY COURT OF AUSTRALIA
| SHA & CHAM | [2017] FamCAFC 161 |
FAMILY LAW – APPEAL – DE FACTO RELATIONSHIP – Where the primary judge found that the parties were in a de facto relationship – Adequacy of reasons and application of legislative criteria in s 4AA of the Family Law Act 1975 (Cth) – Where there is no requirement in the Act to carry out a specific evaluation of the s 4AA(2) factors – Where his Honour’s conclusion took into account the entirety of the evidence – Challenges to the primary judge’s findings of fact – Primary judge’s conclusion open to his Honour on his findings – No appealable error – Error as to date of commencement of relationship in order – Not material to ultimate conclusion – Order amended – Appeal otherwise dismissed – Costs ordered.
| Family Law Act 1975 (Cth) s 4AA |
| Clarence & Crisp (2016) FLC 93-728 Delamarre & Asprey (2014) FLC 93-616 Duffy v Da Rin and Anor (2014) 312 ALR 340 Jonah & White (2012) FLC 93-522 |
Lynam v Director-General of Social Security (1983) 52 ALR 128
Sinclair & Whittaker (2013) FLC 93-551
| APPELLANT: | Mr Sha |
| RESPONDENT: | Ms Cham |
| FILE NUMBER: | SYC | 6872 | of | 2013 |
| APPEAL NUMBER: | EA | 84 | of | 2015 |
| DATE DELIVERED: | 16 August 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Bryant CJ, Ainslie‑Wallace and Cronin JJ |
| HEARING DATE: | 24 October 2016 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 15 May 2015 |
| LOWER COURT MNC: | [2015] FamCA 355 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Wilson SC |
| SOLICITOR FOR THE APPELLANT: | Guardian Legal |
| COUNSEL FOR THE RESPONDENT: | Mr Norrie |
| SOLICITOR FOR THE RESPONDENT: | Wang Lawyers |
Orders
The appellant be granted leave to appeal the orders of Johnston J made on
15 May 2015.
The appeal be allowed but only to the extent necessary to substitute the words “during the period from approximately mid-March 2012 until approximately September 2013” from Order 1 of the orders made by Johnston J on 15 May 2015 with the words “as at 3 August 2012”.
The appeal otherwise be dismissed.
The appellant pay the respondent’s costs of and incidental to the appeal, such costs to be agreed or assessed and paid within twenty-eight (28) days of any agreement or assessment.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sha & Cham has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 84 of 2015
File Number: SYC 6872 of 2013
| Mr Sha |
Appellant
and
| Ms Cham |
Respondent
REASONS FOR JUDGMENT
On 15 May 2015 Johnston J made orders declaring that the Court had jurisdiction to hear an application for injunctive orders and enforcement of a financial agreement between Mr Sha (“the appellant”) and Ms Cham (“the respondent”) on the basis that they were in a de facto relationship between mid‑March 2012 and September 2013.
The appellant, who sought a declaration that a de facto relationship never existed between the parties, filed a Notice of Appeal on 12 June 2015 challenging the orders. The respondent opposes the appeal.
Before turning to a consideration of the appeal it is necessary to discuss the background to the dispute so as to give the appeal context.
Background
The appellant was born in 1969, and the respondent was born on in 1970. Both parties were born in Country H.
The appellant moved to Australia in about 1988 and became a permanent resident a few years later. The appellant married Ms B in 1997. In 1999 the appellant and his parents purchased a farm.
In 2001 the appellant and Ms B purchased their matrimonial home.
In late 2011 the appellant met the respondent in a massage parlour where the respondent was working at the time. In late February or early March 2012 the parties went out for dinner and commenced having a sexual relationship that night. The appellant was still married to Ms B at this time and lived with her.
The appellant deposed that he then saw the respondent again in mid-March 2012 and the parties discussed having a baby together. Around this time the respondent stopped working at the massage parlour at the appellant’s request. The parties began seeing each other at the respondent’s home, with the appellant staying overnight on some occasions, though the regularity and frequency of these visits was in dispute between the parties.
In April 2012 the appellant started paying the respondent about $2,000 per month for her mortgage and other expenses, and on 10 April 2012 the appellant purchased a couch for the respondent’s home.
In May 2012 the parties again discussed having a baby.
On both 29 June 2012 and 31 July 2012 the appellant transferred $10,000 to the respondent.
On 3 August 2012 the parties entered into a financial agreement pursuant to s 90UC of the Family Law Act 1975 (Cth) (“the Act”) which provided that the appellant would:
· pay the respondent 50 per cent of value of the appellant’s matrimonial home within two years of the birth of their child;
· pay the respondent $400 per week during their de facto relationship; and
· pay $400 per week (with a 10 per cent increase every year) for the child’s living costs and any reasonable expenses of the child until the child turned 18.
The financial agreement also provided that if the parties’ relationship broke down they would deal with their property in accordance with the agreement, upon either party “mak[ing] a Separation Declaration”.
On 7 September 2012 the respondent became pregnant through IVF treatment.
On 9 September 2012 the appellant paid for the respondent’s car insurance and on 5 October 2012 the appellant transferred $8,000 to the respondent.
In October 2012 the appellant and Ms B separated, and the appellant transferred half of the home in which he and Ms B had lived to Ms B by way of property settlement.
In mid-2013 the respondent gave birth to the appellant’s daughter. The appellant asserts that since the birth of the child he has paid the respondent about $2,500 per month.
In September 2013 the parties’ relationship began to deteriorate. On 18 November 2013 the respondent signed a separation certificate as required by the financial agreement.
In January 2014 the appellant and Ms B divorced.
The respondent commenced proceedings in this Court in November 2013, and filed an Amended Initiating Application on 20 February 2014 seeking specific performance of the 3 August 2012 financial agreement. By Amended Application in a Case filed on 20 February 2014 the respondent also sought injunctive orders restraining the appellant from dealing with his legal interest in the farm.
On 11 April 2014 and 17 September 2014 the matter came before the primary judge to determine the issue of the Court’s jurisdiction to hear the application. His Honour found that the Court had jurisdiction to hear the application on the basis that a de facto relationship existed between the parties as at the date of the financial agreement.
Leave to appeal
The appellant requires leave to appeal the orders of the primary judge, being orders made in an interlocutory proceeding. The appellant argued that the orders affect the substantive rights of the appellant, and that leave should be granted if the Court was persuaded as to the merit of the appeal.
Given that the appeal concerns whether or not the Court has jurisdiction to determine the financial issue between the parties, we are of the view that substantial injustice would accrue if leave was not given and thus there will be leave to appeal.
The appeal
The appellant’s Notice of Appeal filed on 12 June 2015 raised six challenges to his Honour’s orders. However, at the hearing of the appeal only two grounds of appeal were pressed. The first ground challenged the primary judge’s finding that the parties shared a common residence at the respondent’s home for “relatively confined periods of time”. The second ground challenged his Honour’s finding that the parties were in a de facto relationship at the time that they entered into the financial agreement. Given the overlap between these grounds we propose to discuss them globally.
Under the rubric of these grounds it was also submitted that his Honour:
· Failed to give adequate reasons for his conclusion at [130] that the parties were living together as a couple on a genuine domestic basis at the time the parties signed the agreement;
· Failed to analyse the facts against the legislative criteria in s 4AA(1) of the Act; and
· Made errors in the fact finding process as to common residence, the treatment of the financial agreement and the date of the commencement of the de facto relationship specified in the orders.
We propose first to consider the challenges to the adequacy of the primary judge’s reasons and his Honour’s application of the facts against the legislative criteria. It will then be convenient to deal with the asserted errors as to common residence and the treatment of the financial relationship in considering the challenge to his Honour’s finding that a de facto relationship existed at the relevant time, before finally dealing with the challenge as to the date of commencement of the relationship specified in the order.
These challenges are to be considered in light of s 4AA of the Act which provides:
4AA De facto relationships
Meaning 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.
(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.
…
By way of further context, it is important to bear squarely in mind what has been said of the approach to this determination. In determining whether two people have a relationship as a couple living together on a genuine domestic basis the court is to have regard to all of the circumstances of their relationship, which may include the matters to which s 4AA refers. Whether such a relationship exists will depend on an assessment of all of the circumstances of the relationship, each circumstance to be given such weight as the court considers appropriate (see Sinclair & Whittaker (2013) FLC 93-551 at [54]). It is not to be overlooked that each circumstance or element that makes up a relationship should be considered in the context all of the aspects of the particular relationship (Lynam v Director-General of Social Security (1983) 52 ALR 128 at 131) (“Lynam”).
It was not argued that either the primary judge’s statement of the applicable law or his identification of the issue for determination was incorrect.
Findings of the primary judge
To understand the particular challenges we set out his Honour’s findings in relation to the various factors raised by s 4AA(2).
The duration of the relationship
The primary judge found that while the parties disagreed as to when their relationship commenced, there was no dispute that the relationship was on foot as at 3 August 2012 and continued until September or October 2013 (at [63]).
Common residence
As to the issue of common residence, the parties advanced different accounts of the frequency with which the appellant stayed overnight at the respondent’s house, although it was undisputed that he did so. The primary judge concluded that, although a precise position was unable to be reached on the evidence, it was likely that the times on which appellant stayed overnight at the respondent’s house were “regular and significant”. On this point he concluded:
88. In all the circumstances I am drawn to the finding that it is more probable than not that the [appellant] spent considerable time each week at the [respondent’s] home including spending time overnight there regularly but I am unable to quantify the time so spent.
His Honour noted the argument that because neither the appellant nor respondent referred to the appellant’s time spent at her house as “living there”, he would not find a common residence, and concluded:
90. I must say that I have the view that in fact the parties did have a common residence and this was at the [respondent’s] home, albeit for relatively confined periods of time.
Sexual relationship
The primary judge found that it was common ground that the parties had a sexual relationship (at [91]), and that they had sexual intercourse “regularly throughout their relationship” (at [94]).
Financial dependence
His Honour found that there was no dispute that, at the appellant’s request, the respondent stopped work and from that time the appellant made periodical, as well as lump sum, payments to her. The appellant paid the school fees for the respondent’s daughter and the expenses on the respondent’s flat. The primary judge noted that these payments occurred “over the relevant period” and continued after the parties’ child was born (at [95] to [97]).
Ownership, use and acquisition of property
The primary judge found that although the parties did not own any property together, the appellant had the enjoyment of the respondent’s home as he wished, and had purchased a lounge and armchair for the property (at [98] and [99]).
Degree of commitment to a shared life
As to a commitment to a shared life, his Honour found that a “regular and constant feature of the parties’ relationship” was the appellant’s assurances to the respondent that he wished for them to have a child and his assurance that he would provide the respondent and their future child with financial support. His Honour found that the appellant entering into the financial agreement reflected that commitment (at [100]). His Honour further said:
101. In turn, the [respondent] showed a commitment to a shared life with the [appellant] in the sense that she accepted his assurances about supporting her and the child, gave up her employment as a sex worker and committed herself to endeavouring to have his child under the IVF program.
The primary judge rejected the argument advanced for the appellant that he did not share in the respondent’s desire for a shared life because he, despite the respondent’s requests, did not appear to want to divorce his wife (at [103]). His Honour considered a letter between the parties and the terms of endearment there used. His Honour found that although there was some dispute as to the level of affection conveyed in the terms used, the appellant conceded that he referred to the respondent as “My wife” and referred to himself as “Your Husband” in the letter (at [106]).
Care and support of children
His Honour found that the fact that the parties were informed about the requirements of the IVF program was evidence of a commitment by them to have a child and that the appellant agreed to pay for the costs of the IVF process (at [110]).
Reputation and public aspects of the relationship
The primary judge found that while the parties had a social life together there was no evidence of involvement of other persons in these activities, except for the respondent’s daughter on occasions (at [111]), and that the respondent had limited contact with members of the appellant’s family (at [112]). His Honour also considered it relevant to this issue that the appellant’s name was on the electricity accounts which were addressed to the respondent’s home (at [114]).
Registration of relationship under a prescribed law of a State or Territory and significance of the financial agreement
The primary judge noted that while the parties’ relationship had not been registered under a prescribed law of a state or territory (s 4AA(2)(g)), the financial agreement was “very significant” to the determination of the issue of the nature of the parties’ relationship.
The primary judge noted that the recitals to the agreement asserted that the parties were in a de facto relationship. Although the appellant contended at trial that he did not understand the nature of the agreement, the primary judge rejected that assertion. He found that there had been discussions between the parties as to the details to be inserted into the agreement prior to its signing (at [119]); that the appellant was advised as to the nature and effect of the agreement by a solicitor and that advice was translated into Cantonese (at [121]); that this was not the first time that the appellant had entered into a written legal agreement (at [124]); and that before he signed the agreement the appellant had received a letter of advice from the solicitor which contained the details to be included in the agreement, including the fact of the parties having been in a de facto relationship for four months (at [127]).
The primary judge concluded:
129. I am unable to accept that the [appellant] did not understand the contents of the agreement and the legal advice. He knew well before the day the agreement was signed, that the [respondent] wanted the parties to enter into an agreement prior to them embarking on the IVF treatment. It was obvious to him that the parties were involved in a serious relationship. At his request the [respondent] had given up her sex work to provide him with sexual exclusivity in their relationship. In return he had been paying the costs of her mortgage and educational expenses of her daughter and other expenses. He had brought himself into great difficulty in his relationship with his wife because he was having his serious relationship with the [respondent] including staying regularly at her home. He would have the Court believe that in all these circumstances, because he was tired and/or because of difficulties in interpretation or translation, he did not hear or understand the part of the document which made reference to the parties being in a de facto relationship, or the legal advice, and thought this was only to do with having a baby and the [respondent] being angry with him if he did not sign. I am afraid I do not believe him.
Thus, considering all of the factors to which his Honour had earlier referred, his Honour concluded that:
130. … the reality of the parties’ relationship at the time they made the written agreement was that they were living together as a couple on a genuine domestic basis albeit for only part of the time. Accordingly, in my view, as at 3 August 2012 all the statutory requirements of s 4AA(1) of the Act were satisfied.
Applying the statutory provisions and adequate reasons
Turning then to the challenge to the primary judge’s conclusion that the parties were in a de facto relationship at the time of entering into the financial agreement; it was contended that the primary judge failed to correctly apply the statutory provisions. The appellant submitted:
… rather than evaluating the evidence in the light of the test, the primary judge summarised the evidence and simply concluded that, taking account of all relevant matters, that the statutory test has been made out …
(Appeal transcript 24 October 2016, page 2 line 40 to 43)
True it is that his Honour did not conclude the discussion of each s 4AA(2) criterion with a finding as to whether it supported or spoke against the parties living together as a couple on a genuine domestic basis. However, it is to be remembered that each aspect of the relationship is to be looked at in the context of the relationship as a whole. Thus, a finding as to common residence may support the existence of a de facto relationship when coloured by other factors, although it may not standing alone. There is no error then by the primary judge for not concluding each consideration of the s 4AA(2) factors with such a finding, as this ultimate finding was reached upon consideration of the factors as a whole at [130].
It was argued that, while the primary judge discussed the evidence by reference to the various s 4AA(2) criteria, his Honour did not evaluate it nor did his Honour assess it against the other evidence which, the appellant argued, pointed away from a finding that the parties were in a de facto relationship.
We do not accept that the determination of this issue requires such an approach to the evidence. The Full Court addressed this very point in Delamarre & Asprey (2014) FLC 93-616 (“Delamarre”) in answer to a contention outlined at [15] that the trial judge:
[failed] to identify, evaluate and weigh up one against the other all of the factors in the evidence before her both in favour of and against a finding that the parties had a relationship as a couple living together on a genuine domestic basis
The Full Court said at [18]:
It must also be pointed out that there is no requirement in the Act that a court in applying s 4AA is required to carry out a specific evaluation and/or weighing up of the factors in favour of and against a finding of a de facto relationship. Indeed, s 4AA(3) may well suggest to the contrary.
As was said in Lynam at 131:
… [e]ach element of a relationship draws its colour and its significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.
(emphasis added)
In any event, the primary judge did indeed consider and evaluate the evidence, made findings of fact and at [130] stepped back and considered the totality of that evidence and, in effect, weighed up and balanced the matters to which he had referred. Those matters were:
(a)The duration of the relationship (at [63]);
(b)His Honour’s consideration of the “nature and extent” of common residence, noting it was in issue (at [64] to [88]); noting at [89] the contrary arguments; and concluding at [90] there was a common residence;
(c)The existence of a sexual relationship; unchallenged (at [91] to [94]);
(d)The degree of financial dependence and interdependence and any arrangements for financial support between the parties; unchallenged (at [95] to [97]);
(e)The ownership and acquisition of property; unchallenged (at [98] and [99]);
(f)The degree of mutual commitment to a shared life (at [100] to [104]), noting at [102] contrary submissions put forward by the appellant, and concluding at [103] a commitment to a shared life, albeit expressed in the negative;
(g)Finding no registration of the relationship, but noting the existence of a financial agreement under s 90UC of the Act (at [107] to [109]);
(h)Finding there was a commitment for the appellant and respondent to have a child (at [110]); and
(i)The reputation and public aspects of the relationship (at [111] to [114]).
With the exception of (i) which could be reasonably characterised as a weak finding, the other matters dealt with by the primary judge are all positive findings which, viewed holistically, logically permit the conclusion at [130] that the parties were living together as a couple on a genuine domestic basis as at 3 August 2012. The “weakness” of the finding in (i) is, because of s 4AA(3), not an impediment to the conclusion reached.
Further, it was submitted that the use of the words “albeit for only part of the time” in his Honour’s ultimate conclusion at [130] was indicative of error. The appellant argued:
… the reference to “albeit part of the time” may be entirely innocuous. The primary judge may merely have been stating the fact that the parties were not living together at the [respondent’s] unit full-time. If so, well, then, it adds nothing to the conclusion and there can be no criticism of him. But … it was unnecessary for the primary judge to qualify the finding at 130 by the words “albeit for only part of the time”, as the principles clearly establish that parties may be living together even though they maintain separate residences. And if the reference to “albeit only part of the time” refers to the time when the parties were living together on a genuine domestic basis – which on one construction of the sentence it does – rather than simply referring to the time spent together, then that would, in my submissions, disclose a misunderstanding of the principle and an application of the wrong test …
(Appeal transcript 24 October 2016, page 13, lines 10 to 21)
In our view, having read the primary judge’s reasons as a whole, it is apparent that his Honour clearly understood the legislative requirements (as set out at [36] and [37] of his Honour’s reasons) and his use of the words “albeit for only part of the time” does not represent an error of principle. We reject any construction of his Honour’s reasons as meaning otherwise.
Thirdly, it was submitted that his Honour failed to give adequate reasons for the conclusions reached.
Relevant to this contention is a consideration of the issues that the primary judge was asked to determine and the evidentiary context. It is apparent from his Honour’s reasons that there was significant dispute between the parties on many of the matters on which the respondent relied to assert that she and the appellant were in a de facto relationship. His Honour found the appellant to be less credible than the respondent, and where their evidence was in conflict preferred that of the respondent to that of the appellant (at [50]). His Honour determined the disputes as to issues where possible and while he did not at the end of considering each criterion referred to in s 4AA(2) draw his findings to conclusions, the reasoning process by which his Honour reached his ultimate conclusion is readily apparent. For example, although his Honour did not explicitly say that his findings as to financial dependence were a factor in favour of a finding of a de facto relationship, the findings that his Honour set out in relation to this issue make it abundantly clear that his Honour considered them thus.
We thus reject the contention that his Honour failed to give adequate reasons.
Errors in determining whether a de facto relationship existed
It was contended that the primary judge’s ultimate finding of the existence of such a relationship was wrong and affected by errors of fact made when considering some of the criteria to which s 4AA(2) referred. The appellant asserted errors in relation to the primary judge’s findings as to common residence, the degree of commitment to a shared life and the treatment of the financial agreement.
Common residence
It was argued that the primary judge erred in his conclusion as to the parties’ common residence. The appellant did not assert error in his Honour’s findings as to the quantum of time the appellant spent at the respondent’s home.
It was first argued that the finding of common residence was one not open to the primary judge on the evidence. It was submitted that the parties did not use the word “living” to describe the appellant’s presence at the respondent’s home, but rather described it as “staying” or “visiting”. It was conceded that the parties’ perceptions of their relationship were not determinative, but it was nonetheless argued that their choice of words demonstrated the nature of the time the appellant spent with the respondent.
It was further argued that his Honour merely found that the appellant spent “regular and significant” periods of time at the respondent’s flat, and did not consider the nature and extent of that common residence. The appellant contended that the appellant’s visits to the respondent’s flat did not establish common residence but, rather, reflected no more than a place at which the parties could have intercourse.
Although the evidence established that that the appellant had purchased household items for the respondent’s flat including a couch and chair, a household account bill for the period including August 2012 relating to the respondent’s flat bore the appellant’s name, and the appellant conceded he had necessary toiletries at the flat, it was submitted for the appellant that none of these matters was a sufficient basis from which to conclude that the appellant and the respondent had a common residence because, it was said, the term “residence” connotes a “greater degree of permanence than a place of living”. In using the term “place of living”, the appellant relied on the case of Duffy v Da Rin and Anor (2014) 312 ALR 340, a case which is of limited utility as it dealt with wording relevant to a particular, and different, statute. In any event, while s 4AA(2)(b) refers to “common residence”, s 4AA(1) refers to “living together”.
The determination of common residence requires a consideration of the facts and circumstances of the particular case. Indeed, as the section itself clearly contemplates, a person may live at more than one place and of course, parties can be in a de facto relationship notwithstanding that one of them is married to another person or in a de facto relationship with another person.
In Clarence & Crisp (2016) FLC 93-728 at [46] the Full Court held that:
… [s]ince one of the matters in in the checklist is “the nature and extent of [the parties’] common residence”, it inexorably follows that it is possible for a couple to be in a de facto relationship without residing in the same home on a full-time basis.
This supports the comments of the Full Court in Jonah & White (2012) FLC 93-522 at 86,683 that:
In this regard, we note that his Honour was alive to the issue that the term “living together” can encompass circumstances where parties live together “…for only a small part of each week…” (at [65]).
We agree that the definition may be fulfilled where parties have lived together for limited periods provided that other indicia or the circumstances of the matter enable a finding that they were “living together on a genuine domestic basis”.
We reject the contention that the primary judge failed to consider the nature and extent of the parties’ common residence. His Honour’s findings encompassed the fact of common residence, as well as establishing characteristics of the common residence; that the parties did not share a common residence on a full-time basis and that the appellant was living with his wife when not living with the respondent. We note also that his Honour also made findings as to the time the appellant spent at the respondent’s apartment generally, not just in relation to nights, finding that this was “considerable”. In these circumstances it is clear that his Honour had regard to both the nature and extent of the common residence.
Degree of commitment to a shared life
The appellant, while not apparently contending that there was no evidence on which to find a commitment to a shared life, argued that the primary judge failed to assess the degree or nature and quality of such commitment.
In support of the submission, it was argued that the appellant’s evidence at trial was to the effect that he did not want to divorce his wife.
The primary judge dealt with this issue directly in his reasons. Indeed, his Honour concluded in an unchallenged finding that the appellant’s behaviour showed “that he desired to have both his relationship with his wife and his relationship with the [respondent]. His behaviour has been such as to demonstrate considerable effort by him in endeavouring to maintain both relationships” (at [103]).
His Honour clearly considered that to be the evidence and rejected the submission that there was no commitment to a shared life. In our view, his Honour’s finding at [103] and his findings about the parties’ relationship clearly determined the issue both as to existence and degree of the commitment.
The balance of the submissions in relation to this factor do no more than argue that the weight that the primary judge placed on various actions of the parties was insufficient to enable the conclusion to be reached. Arguments as to the weight of evidence face a considerable hurdle to appellate success. We do not find any support for this contention and do not accept that his Honour erred in his determination of this criterion.
The effect of the signed agreement
The primary judge considered the fact of the appellant signing the agreement to be “very relevant” in his determination of whether the parties were in a de facto relationship. It was argued for the appellant that his Honour “appears to have treated” that fact as an admission that the appellant and respondent were in a
de facto relationship, and that signing the agreement could not amount to an understanding of the legal nature of such a relationship.
We do not accept that this conclusion is available from his Honour’s findings.
It is true that his Honour considered it relevant that the appellant entered into the agreement and had received independent legal advice before doing so. His Honour also considered that the agreement was signed before the respondent would embark on the process of IVF to have the baby that the appellant very much wanted. However, we reject the submission that his Honour treated the fact of signing the agreement as an admission. His Honour’s conclusion only went to the appellant’s understanding of the obligations and contents of the agreement.
His Honour said:
129.… It was obvious to [the appellant] that the parties were involved in a serious relationship. At his request the [respondent] had given up her sex work to provide him with sexual exclusivity in their relationship. In return he had been paying the costs of her mortgage and educational expenses of her daughter and other expenses. He had brought himself into great difficulty in his relationship with his wife because he was having his serious relationship with the [respondent] including staying regularly at her home …
The primary judge’s findings on this point do not amount to a conclusion that the appellant understood the legal requirements of a de facto relationship, or indeed that he was in one, but rather go towards establishing the appellant’s views of the relationship and treating the action of signing the agreement as a consideration in the primary judge’s assessment of the relevant circumstances of the parties’ relationship.
We are not satisfied that his Honour’s findings in relation to the aforementioned factors reveal any error. Further, we reiterate our earlier comments that the ultimate determination of whether a de facto relationship exists depends on a consideration of all the circumstances of the relationship, a process his Honour clearly embarked upon by “taking account of all the relevant matters”. We are not persuaded that his Honour’s finding that the parties were in a de facto relationship as at 3 August 2012 was not open to his Honour in light of his findings.
Thus we are not satisfied that his Honour was in error in finding that a de facto relationship was in existence as at 3 August 2012.
Error as to date of commencement of de facto relationship
Counsel for the appellant contended that the primary judge was in error in finding that the de facto relationship commenced in mid-March 2012 as such a finding was not supported by the evidence. It was submitted that:
… whilst the finding – that finding may be peripheral to the central inquiry whether there was a defacto relationship at the date of the agreement, in my submissions it’s significant because it suggests that the primary judge may have applied the wrong test, even though there are no reasons for the finding as to the commencement of the defacto relationship in mid-March.
(Appeal transcript 24 October 2016, page 23, line 39 to 44)
The finding this relates to is the time period specified in the orders made by the primary judge. Order 1 was as follows:
It is declared that this Court has jurisdiction to determine the Amended Initiating Application filed on 20 February 2014 by [the respondent] on the basis that she and [the appellant] were in a de facto relationship during the period from approximately mid-March 2012 until approximately September 2013.
(emphasis added)
The appellant submitted that the evidence before the primary judge provided that the parties’ relationship began sometime around February or March 2012, however the evidence of the relationship at this time could not support a finding that the parties were in a de facto relationship as and from the commencement of the relationship. The respondent conceded that the reference to March may have been an error but submitted that this had no effect on his Honour’s ultimate finding.
His Honour made a finding that the parties were in a de facto relationship as at 3 August 2012 (the date on which the financial agreement was dated), but does not provide any reasons for ascribing the start date of the de facto relationship as being mid-March 2012.
His Honour was not asked to establish when the de facto relationship began, but rather to establish whether such a relationship was in existence at the date of the financial agreement. It is clear that his Honour accepted this was the question before him (at [55]), and that this was in the forefront of his Honour’s mind when making his ultimate finding that “as at 3 August 2012 all the statutory requirements of s 4AA(1) of the Act were satisfied” (at [130]). We do not accept, as the appellant contends, that the erroneous reference to
mid-March 2012 supports a view that his Honour considered the incorrect test in circumstances where the reasons clearly support his Honour’s conclusion as to the de facto relationship being in existence as at 3 August 2012. We do note however, that there is nothing in his Honour’s reasons to support the de facto relationship being in existence as at mid-March 2012 and such reference is an error.
In these circumstances, although not satisfied that the error was material to his Honour’s ultimate conclusion, we propose to follow the course adopted by the Full Court at [42] in Delamarre, that being “that having identified error in the first declaration, we should not allow it to stand without some amendment”.
Accordingly we will allow the appeal only so far as to remove the reference to “during the period from approximately mid-March 2012 until approximately September 2013” from Order 1 of the orders made by the primary judge on 15 May 2015 and replace these words with “as at 3 August 2012”.
Having thus disposed of the other arguments contended on the appeal, it will otherwise be dismissed.
Costs
As is customary, we took submissions from the parties as to the costs of the appeal to save the parties the time, trouble and expense of returning to court to make submissions once the appeal had been determined. Counsel for the appellant conceded that if the appeal failed he could not resist a costs order. We will thus make an order that the appellant pay the respondent’s costs.
I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Ainslie-Wallace
& Cronin JJ) delivered on 16 August 2017.
Associate:
Date: 16 August 2017
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