Shelby & Rylan
[2022] FedCFamC1A 143
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Shelby & Rylan [2022] FedCFamC1A 143
Appeal from: Shelby & Rylan (No 2) [2022] FedCFamC1F 281 Appeal number(s): NAA 119 of 2022 File number(s): LEC 701 of 2018 Judgment of: ALDRIDGE, TREE & ALTOBELLI JJ Date of judgment: 19 September 2022 Catchwords: FAMILY LAW – APPEAL – DE FACTO RELATIONSHIP – Where the primary judge made an order declaring that a de facto relationship never existed between the parties – Where the appellant argues that the primary judge erred in finding that no de facto relationship existed within the meaning of s 4AA of the Family Law Act 1975 (Cth) – Weight challenges – Where the primary judge’s findings of fact were not glaringly improbable and were open on the evidence – No error found – Appeal dismissed. Legislation: Family Law Act 1975 (Cth) ss 4AA, 33
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 29
Cases cited: Fairbairn v Radecki (2022) 64 Fam LR 604; [2022] HCA 18
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Lynam v Director-General of Social Security (1983) 52 ALR 128
Sinclair & Whittaker (2013) FLC 93–551; [2013] FamCAFC 129
Smith v Smith (1986) 161 CLR 217; [1986] HCA 36
Number of paragraphs: 48 Date of hearing: 30 August 2022 Place: Heard in Brisbane, delivered in Sydney Counsel for the Appellant: Mr Hodgson Solicitor for the Appellant: Tyndall & Co. Lawyers Counsel for the Respondent, First Intervener and Second Intervener: Mr Alexander with Ms Eviston Solicitor for the Respondent, First Intervener and Second Intervener: Family Law Solutions ORDERS
NAA 119 of 2022
LEC 701 of 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS SHELBY
Appellant
AND: MR RYLAN
Respondent
E PTY LTD
First Intervener
C PTY LTD
Second Intervener
order made by:
ALDRIDGE, TREE & ALTOBELLI JJ
DATE OF ORDER:
19 september 2022
THE COURT ORDERS THAT:
1.The Amended Notice of Appeal filed 4 August 2022 is dismissed.
2.Within 60 days, the appellant pay the respondent’s costs of and incidental to the appeal agreed in the sum of $30,000.
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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Shelby & Rylan has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, TREE & ALTOBELLI JJ:
introduction
On 29 April 2022, following a 10 day hearing that commenced on 15 February 2021 and concluded on 16 September 2021, a judge of the Federal Circuit and Family Court of Australia (Division 1) made orders declaring that there was no de facto relationship between the appellant and respondent, and made a number of ancillary orders dealing with the interests of two third party interveners.
By way of an Amended Notice of Appeal filed 4 August 2022, the appellant asks this Court to set aside the declaration and orders made by the primary judge. If the appeal succeeds, the appellant seeks a declaration that a de facto relationship existed between 2007 and 2017 or, in the alternative, that the proceedings be remitted for rehearing.
The respondent opposes the appeal.
For reasons which follow, the appeal will be dismissed.
the trial
The central issue at the hearing of this matter was whether the appellant and respondent were in a de facto relationship within the meaning of s 4AA of the Family Law Act 1975 (Cth) (“the Act”).
The appellant sought a declaration that a de facto relationship existed between the respondent and herself from 2007–2017.
The respondent sought a declaration that a de facto relationship never existed between the parties. He conceded that whilst he and the appellant had a casual sexual relationship for about two years from when they met in 2004, and a spasmodic sexual relationship over a succeeding period of about three years, as well as maintaining a working relationship and friendship simultaneously and thereafter, nonetheless the nature of their relationship was not a de facto relationship as defined in the Act. The primary judge accepted the respondent’s arguments.
the appeal
Ten grounds of appeal are articulated in the Amended Notice of Appeal filed 4 August 2022. In substance, save for Ground 6, all of the grounds seem to challenge conclusions made by the primary judge based on findings of fact or on the weight given to evidence. Ground 6 alleges error of law in what would appear to be taking into account an irrelevant consideration.
Significantly, the appellant did not challenge the credit findings made by the primary judge.
the applicable law
Before examining the individual grounds of appeal more closely, the applicable law bears consideration. In Sinclair & Whittaker (2013) FLC 93-551 the Full Court, in the course of considering s 4AA of the Act, cited with approval a statement of Fitzgerald J (as his Honour then was) in Lynam v Director-General of Social Security (1983) 52 ALR 128:
51.In coming to the view that a couple had 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. Those circumstances may include those specified in ss 4AA(2).
52.Sub-section 4AA(3) highlights that no particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the subject persons have a de facto relationship.
53. Sub-section 4AA(4) provides:
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.
54.Thus, whether or not a de facto relationship, as defined, exists will depend upon an assessment of all of the circumstances of the relationship, each to be given the weight the court thinks appropriate.
55.In Lynam v Director-General of Social Security (1983) 52 ALR 128 at 131 said:
Each element of a relationship draws its colour and its significance from the other elements, some of which may point at 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.
56. Many of the submissions put by the appellant in the appeal sought to place significant, if not determinative weight, on particular circumstances. Absent the identification of an error on the part of the trial judge it is difficult for such submissions to succeed. Merely because another judge may have weighed the circumstances differently does not, of itself, demonstrate error.
grounds of appeal
Grounds 1 and 2
These grounds provide:
1.That the Trial Judge was in error in law in applying the statutory definition contained in Section 4AA(1) of the Act, in concluding that because the parties had not lived together across their respective homes in [B Town], that their relationship as a couple living together on a genuine domestic basis was not established.
2.That the Trial Judge was in error in law in applying the statutory definition contained in Section 4AA(1) of the Act, in concluding from the uncontroverted evidence that after the Appellant moved to live in [B Town], the parties saw each other every day, and ‘hung out’ together almost every night, and ate meals together at their respective homes, and went to a local restaurant together some two to three times a week, that their relationship as a couple living together on a genuine domestic basis was not established.
These grounds are related and focus on the findings made by the primary judge about the parties’ living circumstances at their respective homes in B Town in the state of New South Wales. The two homes were 30 metres apart and were linked by a rear laneway. The appellant conceded that they never shared a common residence.
At trial, there were significant differences between the evidence of each party and thus the primary judge assessed the credit of the parties and their witnesses. Comprehensive credit findings are made at [13]–[36] and [182]. These credit findings underpin many of the other findings made.
At [15] the primary judge considered much of the evidence given by the appellant to have been self-serving and reconstructed rather than a truthful recitation of past events. Inconsistencies were found in the appellant’s affidavits in relation to significant issues including, for example, whether the appellant and respondent had lived together across two houses, as well as when the alleged de facto relationship had commenced. It is clear from the findings made by the primary judge that at no stage had the appellant, who was in receipt of a single parent payment, notified Centrelink that she was in a de facto relationship, a factor that the primary judge found was indicative of the appellant’s own belief that there was no such relationship.
Putting aside the credit findings, the primary judge deals with the present issue extensively at [9], [16]–[18], [31], [76]–[79] and [86]–[89]. Her Honour was clearly aware of the competing contentions and recited the same. The primary judge preferred the respondent’s evidence over that of the appellant.
Counsel for the appellant submitted that the High Court in Fairbairn v Radecki (2022) 64 Fam LR 604 at [33] stated that cohabitation of residence is not a necessary feature of living together. He submitted that living together must be construed to take account of the many various ways in which two people may share their life together in the modern world. This did not necessarily mean residing in the same residence.
The passage from the High Court’s judgment at [33] bears reproduction:
33.Living together for the purposes of s 4AA(1) will often, perhaps usually, mean cohabitation of some residence by a couple for some period of time. But cohabitation of a residence or residences is not a necessary feature of "living together". That phrase must be construed to take account of the many various ways in which two people may share their lives together in the modern world. Two people, for any number of reasons, may not reside in the same residence, but nonetheless be in a de facto relationship in the sense required by s 4AA.
(Footnote omitted)
Later at [39] the Court stated that living together should be construed as meaning sharing life as a couple:
39.The language of s 4AA of the Act and its reference to “living together” requires no different approach to determining whether a relationship exists of the kind defined. “Living together”, consistently with authority, should be construed as meaning sharing life as a couple. Section 4AA does not prescribe any way by which a couple may share life together. Its language is sufficiently broad to accommodate the great variety of ways a de facto relationship may exist. That conclusion is supported by the varied factors listed in s 4AA(2). In a given case, some of the factors listed in s 4AA(2) may be relevant and some may be irrelevant; inevitably some may have greater prominence than others. A conclusion that a de facto relationship has ended may also arise because of factors not listed in s 4AA(2). Such a conclusion is mandated by s 4AA(3) and (4). In particular, s 4AA(4) is a statutory recognition that what may constitute a genuine de facto relationship is not be determined in the same way in every case by reference to rigid criteria that must always be satisfied. In that respect, the language of s 4AA(2)(b) does not assume that every de facto relationship must have a “common residence” to some “extent” and of some “nature”. Such a construction is entirely denied by s 4AA(3).
(Footnote omitted)
The High Court has arguably clarified that parties do not need to live together in order to be in a de facto relationship if they are sharing life as a couple. This however does not mean that every couple sharing life is necessarily living in a de facto relationship. The Court must have regard to all of the evidence, including to the matters referred to in s 4AA(2) of the Act. On one view, the phrase “sharing life” is simply a general summary of the s 4AA(2) circumstances.
Counsel for the appellant submitted that the primary judge’s ultimate determination on this and other issues was underpinned by a mistaken belief about the significance of the parties not sharing a common residence or living together across their two homes. We disagree. The primary judge’s findings in this regard constitute only one factor in her Honour’s ultimate determination that there was no de facto relationship. There can be no suggestion that this finding somehow then distracted the primary judge from a proper application of s 4AA of the Act. Moreover, in substance, the primary judge undertook a detailed examination of the evidence about whether the parties lived a shared life and ultimately concluded that they did not. For example, her Honour found that sharing accommodation and a bed in this case did not constitute a shared life, for reasons clearly explained.
Grounds 1 and 2 are not established.
Ground 3
This ground provides:
3.That the Trial Judge was in error in law in applying the statutory definition contained in Section 4AA(1) of the Act, in concluding that notwithstanding the uncontroverted evidence that between 2007 and 2017, the parties had travelled overseas together on business trips and holidays, comprising some 374 nights, and that they had always shared the same bed, when not in transit, that their relationship as a couple living together on a genuine domestic basis was not established.
This ground focuses on the extensive joint overseas travels of the parties on business trips and holidays. The primary judge deals with this issue at [19]–[20] and [155]–[158].
The evidence indicated that the parties spent 374 nights together whilst travelling overseas, sharing the same room and the same bed, in the period from 2005–2017. Her Honour found that the quantum of travel undertaken by two people does not, of itself, indicate the existence of a de facto relationship, particularly in circumstances where those two people were engaged in a business as well as a personal relationship. Moreover, the nature of the business clearly required extensive overseas travel. The primary judge was aware that the appellant and respondent shared a bed during these travels. This seems to have been emphasised in the appellant’s case. What is not clear from the evidence is whether the parties had a sexual relationship when they were sharing a bed. A reasonable inference is that the appellant was contending that the shared bed during extensive shared travel not only evidenced common residence but also the existence of a sexual relationship. At [19] of the reasons, the primary judge rejects the former, and labels this a reconstruction by the appellant.
The parties’ sexual relationship seemed to acquire particular significance in the appellant’s case although it does not appear that the respondent was cross-examined about their sexual relationship in the context of the shared bed whilst travelling.
At [135], the primary judge found that the parties had a casual sexual relationship between about 2005 and 2007, and a spasmodic sexual relationship from 2007–2011. There is no challenge to these findings. Thus, even if the parties had shared the same bed during their international travel together, it does not necessarily follow that they continued their casual or spasmodic sexual relationship on these occasions. This merely strengthens the primary judge’s ultimate conclusion at [194] that the composite picture of the relationship between the parties as established by the evidence, including the evidence of extensive shared travel, was not such as to persuade her Honour that it was the relationship of a couple living together on a genuine domestic basis at any time. Given the employer/employee and then business owner/contractor relationship between the parties, the travel and sharing of the bed do not necessarily establish any mutual commitment to a shared life.
In any event, this is only one factor taken into account by the primary judge. Her Honour was entitled to make the findings that she did.
Grounds 4 and 5
These grounds provide:
4.That the Trial Judge was in error in law in applying the statutory definition contained in Section 4AA(1) of the Act, in concluding that notwithstanding the voluminous number of SMS messages and their contents (including numerous sexually suggestive messages) exchanged between the parties between April 2012 and September 2016, that this was not indicative of a continuing sexual relationship between the parties during this period.
5.That the Trial Judge was in error on the evidence in concluding that notwithstanding the quantity and contents of the SMS messages passing between the parties, these messages did not establish anything more than that the parties were two people who in the course of the casual and then sporadic sexual relationship, friendship, employer/employee, and business owner/contractor relationship, in which it was agreed they had over time, enjoyed communicating in such a manner.
The focus of these grounds is on the quantity and contents of the SMS communication between the parties. The appellant submitted that having regard to the extensive evidence about this communication, the primary judge erred in finding that this was not indicative of a continuing sexual relationship between the parties in the period from April 2012 to September 2016. Moreover, the appellant argued that the primary judge has erred in finding that the messages establish no more than that the parties were two people who in the course of the casual and then sporadic sexual relationship, friendship, employer/employee, and business owner/contractor relationship enjoyed communicating in this manner.
The primary judge deals with this evidence at [51]–[53] and [183]–[188]. Her Honour had clear and understandable concerns about the weight to be given to this evidence, and was unconvinced that the mere volume of the communication, its personal nature in part, and its idiosyncratic characteristics, necessarily indicated a de facto relationship.
At [186], the primary judge concludes that the particular character of the communication was simply the style of communication that the parties adopted over time despite them not being engaged in a sexual relationship. In this case, that conclusion is hardly “glaringly improbable”.
Another difficulty in the appellant’s case in this regard is the findings of the primary judge at [135] that the sexually suggestive, ribald and lewd content of the communication continued after 2013 when, even on the appellant’s evidence, the parties rarely had sex. This finding is consistent with the finding of the primary judge that the communication simply evidences the style of communication adopted by both parties, whether or not they were engaged in a sexual relationship, and whether or not they were in any relationship at all. These grounds of appeal are not established.
Ground 6
This ground provides:
6.That the Trial Judge was in error in law in applying the statutory definition contained in Section 4AA (1) of the Act, in concluding that the apparent deterioration of the parties’ sexual relationship was relevant to establishing whether their relationship was as a couple living together on a genuine domestic basis, in circumstances where it was uncontroverted that a sexual relationship had at some time existed between the parties.
This ground contends for an error of law in concluding that the deterioration of the parties’ sexual relationship was relevant to the determination of the existence of a de facto relationship. Counsel submitted that s 4AA(2)(c) of the Act simply refers to whether a sexual relationship exists and not, therefore, its changing nature. The submission is misconceived. Section 4AA(1)(c) defines de facto relationship by reference to “all the circumstances of their relationship”. Moreover, s 4AA(2) is in inclusive, not exclusive, terms. The primary judge was entitled to consider the changes in the parties’ sexual relationship. In any event, the findings of the primary judge at [95]–[96] and [134]–[135] about these changes are clear and unimpeachable.
Ground 7
This ground provides:
7.That the Trial Judge was in error in her assessment of the evidence in determining that she could have little, if any, confidence upon email communications upon which the Appellant had sought to rely, because the Appellant had failed to include other emails in an ‘email chain’, in circumstances where the Respondent had not provided any evidence that contradicted the Appellant’s assertions as to the contents of these emails, the authenticity of such emails, or that the Appellant had deleted relevant emails which did not support her case.
The focus of this ground is on the email communication between the parties. The primary judge deals with this at [39]–[50]. The appellant contends that the primary judge was in error in her Honour’s broad and general assessment of the email evidence in circumstances where the respondent provided no evidence contradicting the contents or authenticity of certain emails which were of any relevance in the email chain.
The primary judge found that the appellant had disclosed approximately 1.5 million emails to the respondent covering the period from about June 2009 to 9 August 2018. We infer that the appellant was contending that this evidenced the existence of a de facto relationship. However, even on the appellant’s case, the de facto relationship ended in 2017, suggesting that the email correspondence was equivocal in nature as it continued after the acknowledged end of the relationship from the appellant’s perspective. In any event, the primary judge was understandably critical of the appellant for providing voluminous emails which were irrelevant to her case and, in effect, selectively choosing the emails that supported her case and not providing the communication in context. The primary judge concluded at [43] that she could not be confident about the context in which the communication contained within the documents actually occurred. The primary judge was so concerned about this that she concluded that it would make it dangerous to place weight on this evidence. The credit findings of the primary judge against the appellant no doubt caused her Honour to be particularly cautious about this evidence. Her Honour was entitled to reach this conclusion. It was not a conclusion that was contrary to compelling inferences. The email communication in question hardly constitutes incontrovertible facts given its selective, incomplete and partly equivocal nature.
Grounds 8 and 9
These grounds provide:
8.That the Trial Judge was in error on the evidence in concluding that the loan from [E Pty Ltd] to the Appellant, was repayable by her, in circumstances where this loan did not appear in the Financial Statements of [E Pty Ltd] until 2017, a time after the parties’ separation, and the end of their relationship.
9.That the Trial Judge was in error in her consideration of the totality of the evidence surrounding the advance of the amount of $57,000 to the Appellant at the instigation of the Respondent, in failing to conclude that it was never intended between the parties that this amount would ever be repaid or that the terms of the loan agreement between the Appellant and [E Pty Ltd] would ever be enforced.
Orders 3 and 7 made by the primary judge are consequential to the finding that there was no de facto relationship and deal with the rights of the interveners under state or common law. These grounds appear to relate to these orders.
At [198] the primary judge appears to have found that the Court’s jurisdiction to make these orders was under s 33 of the Act as it read at the time (now s 29 of the Federal Circuit and Family Court of Australia Act 2021 (Cth)) which confers on the Court jurisdiction in associated matters. The primary judge no doubt meant to refer to accrued jurisdiction as is evident from [197]. Section 33 of the Act at that time did not invest the Court with jurisdiction in associated matters which arise under state or common law, but only in respect of associated matters that arise under Commonwealth law—that is, under a Commonwealth statute which does not itself invest the Court with jurisdiction (Smith v Smith (1986) 161 CLR 217 at 240).
Grounds 8 and 9 focus on advances made to the appellant by one of the interveners at the behest of the respondent. Again, the challenges are to the factual findings made by the primary judge, and the weight placed on the evidence. The issue is dealt with by the primary judge at [71]–[75]. Her Honour was entitled to make these findings. The fact of a written loan agreement entered into in 2007 is a strong indicia against the existence of a de facto relationship at that time.
Ground 10
This ground provides:
10.That the Trial Judge was in error on the evidence in failing to conclude that there was a degree of financial dependance by the Appellant upon the Respondent and the nature of the arrangements between the parties by which such financial support was provided by him.
(As per the original)
This ground seeks to challenge the finding that there was no degree of financial dependence between the parties. Her Honour deals with this at [139]–[152]. There is nothing glaringly improbable about these findings.
However, before this Court could legitimately reverse the primary judge’s conclusion on that central factual question, this Court would have to be well satisfied that the primary judge was plainly wrong, that is, her Honour’s decision being no proper exercise of her Honour’s judicial discretion (Gronow v Gronow (1979) 144 CLR 513 per Stephen J at 519). It is irrelevant that the members of this Court might have come to a contrary conclusion on the facts. Moreover, it is the “composite picture” and not isolation of, and undue weight or emphasis given to, individual factors that is determinative.
conclusion
No ground of appeal has merit, and hence the appeal will be dismissed.
costs on appeal
In the event that the appeal is to be dismissed, the respondent seeks an order for his costs of the appeal. The parties ultimately agreed that if the appeal was dismissed the respondent’s costs would be $30,000.
The appeal was without merit and has wholly failed, and no other consideration speaks strongly against an order for costs in this case.
The appellant is ordered to pay the respondent’s costs of and incidental to the appeal fixed in the sum of $30,000 within 60 days.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Tree & Altobelli. Associate:
Dated: 19 September 2022
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