Sinclair & Whittaker
[2013] FamCAFC 129
FAMILY COURT OF AUSTRALIA
| SINCLAIR & WHITTAKER | [2013] FamCAFC 129 |
FAMILY LAW – APPEAL – De facto relationship – consideration of the approach on appeal to be taken on de facto cases – whether the trial Judge erred in making a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) that a de facto relationship of at least two years existed between the parties – whether the trial Judge erred in not giving sufficient weight to contemporaneous representations of the respondent that she was single and not in a de facto relationship – whether the trial Judge erred by failing to give adequate consideration to the appellant’s evidence that he maintained other relationships during the time of the alleged de facto relationship – whether the trial Judge erred in failing to give appropriate weight to particular findings of fact – where the Full Court was satisfied that the trial Judge did not ignore the representations made by the respondent and that the countervailing facts were duly taken into account – where the Full Court was satisfied that the trial Judge, not having accepted that the appellant was engaging in significant relationships with other women at the same time as that with the respondent, cannot be criticised for failing to give them adequate consideration and that the reasoning process that led his Honour to that view does not disclose any error – where the Full Court considered the stand of proof required – no appealable error established – appeal dismissed.
| Family Law Act 1975 (Cth) ss 4AA, 79A , 90SM, 94 Evidence Act 1995 (Cth) s 140 |
| Allesch v Maunz (2000) 203 CLR 172 Briginshaw v Briginshaw (1938) 60 CLR 336 Hayes v Marquis [2008] NSWCA 10 Jonah v White [2011] Fam LR 460 Jonah & White (2012) FLC 93-522 Lynam v Director-General of Social Security (1983) 52 ALR 128 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 |
| APPELLANT: | Mr Sinclair |
| RESPONDENT: | Ms Whittaker |
| FILE NUMBER: | SYC | 3101 | of | 2011 |
| APPEAL NUMBER: | EA | 3 | of | 2013 |
| DATE DELIVERED: | 27 August 2013 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Bryant CJ, Thackray and Aldridge JJ |
| HEARING DATE: | 24 July 2013 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 12 December 2012 |
| LOWER COURT MNC: | [2012] FamCA 1050 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Lethbridge SC with Mr Gould |
| SOLICITOR FOR THE APPELLANT: | Harris Freidman Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Batey with Mr Schonell |
| SOLICITOR FOR THE RESPONDENT: | Nicholas Eddy & Company |
Orders
The appeal be dismissed
The appellant pay the respondent’s costs of the appeal as agreed or as assessed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sinclair & Whittaker has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 3 of 2013
File Number: SYC 3101 of 2011
| Mr Sinclair |
Appellant
And
| Ms Whittaker |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Sincalir (“the appellant”) appeals from a decision of Loughnan J given on 12 December 2012 in proceedings between the appellant and Ms Whittaker (“the respondent”). His Honour made a declaration that “for the purpose of proceedings under s 90SM of the Family Law Act 1975 (Cth) the parties lived in a de facto relationship from August 2004 until 21 September 2010”. That was the sole issue before his Honour.
The definition of “de facto relationship” is found in s 4AA of the Family Law Act 1975 (Cth) (“the Act”) which provides as follows:
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.
Background
At the time of the trial the appellant was 54 years of age and the respondent 51 years of age.
The parties began dating in late 2002 and commenced a sexual relationship in January 2003. At that time the respondent was living in a rented unit at D and the appellant in premises owned by him at K.
In August 2004 the respondent’s flatmate vacated the rented D unit and some belongings of the appellant were moved into it. The appellant began to contribute $600 each month towards the respondent’s rent.
In December 2005 the parties purchased a unit in D (“the D apartment”) for $1 800 000 with the appellant providing the deposit of $360 000 and paying the stamp duty. The acquisition was undertaken via a corporate entity wholly controlled by the appellant, with the corporation acquiring a 70 per cent interest and the respondent acquiring a 30 per cent interest. The respondent and the corporate entity jointly borrowed $1 440 000 pursuant to an interest-only facility from the appellant’s business, which was that of a mortgage provider.
Subsequent to the purchase the parties each contributed $15 000 to a fund which was used for the acquisition of furnishings and accessories for the apartment. They shopped for these items together.
On 17 December 2005 the parties started using the D apartment. The respondent lived there permanently. The appellant spent, on average, three nights per week at the premises but left at 4.15 am each morning to commence the work day from his K premises.
On 21 December 2006 the appellant gave the respondent a 2.17 carat diamond ring which the trial Judge found to have been described by the appellant as a “promise ring”.
The relationship broke down on 21 September 2010.
In May 2011 the appellant ceased making contributions to the mortgage secured on the D apartment.
The Trial Judge’s Reasons
After briefly stating the background of the matter his Honour discussed the issue of the credit of the parties and the witnesses called by them.
The trial Judge found that it was not possible to prefer the evidence of one of the parties over that of the other on all issues.
In relation to some factual issues the trial Judge made specific findings of fact some of which were based upon his express acceptance of the evidence of the respondent’s mother and the evidence of Mr M, the appellant’s former driver.
In the course of dealing with the respondent’s evidence the trial Judge dealt with representations made by the respondent to lending institutions, to the Chief Commissioner of State Revenue for New South Wales and in her income tax returns for a number of years. On each occasion she had stated that she was “single” when an available option was “de facto”.
These representations were strongly relied upon by the appellant as evidence that the parties were not in a de facto relationship.
The trial Judge said at [54]:
The [respondent] agreed that “single” more accurately described her status at that time. In other words, the [respondent’s] evidence was to the effect that she did not mislead the potential lender and that, at that time, she did not consider herself to be in a de facto relationship.
His Honour then considered the alternative submission that was made to him by the appellant, which was that these representations by the respondent, if in fact not accurate, adversely affected her credit generally. His Honour said at [55]:
It is important to note that even if the representations of a party during the relationship or since were false and deliberately so, and even if that was done for the purposes of gaining a monetary or other advantage, the characterisation of the relationship remains a matter for me. The importance of a person not profiting from an earlier misrepresentation does not detract from the Court’s obligation to identify the true position, where that is practicable. In this case the issue is whether the parties’ relationship in fact meets the statutory definition. (Reference omitted)
After discussing the credit of the other witnesses his Honour concluded at [69]:
In the circumstances of this case it is not possible to prefer the evidence of one of the parties over that of the other on all issues. Where it is possible, findings of fact on disputed issues must be made issue by issue.
His Honour did not expressly refer to these representations again in his reasons.
After referring to the relevant sections of the Act his Honour continued:
75.As is referred to by Coleman J in Barry and Dalrymple [2010] FamCA 1271 at 227, in Roy v Sturgeon (1986) 11 Fam LR 271, an early case decided pursuant to the provisions of the De Facto Relationships Act 1984 (NSW), Powell J of the Equity Division of the Supreme Court of New South Wales suggested that to dissect the phrase appearing in the New South Wales legislation:
… “living together as a husband and wife on a bona fide domestic basis” into discreet “elements” and then testing the facts of a particular case by reference to a set of a priori rules in order to establish whether a particular “element” is, or is not, present, is to ignore the fact that just as human personalities and needs vary markedly, so, too, will the various aspects of their relationship which lead one to hold that a man and woman are living together as husband and wife on a bona fide domestic basis vary from case to case.
76.I respectfully agree with the observation of Coleman J in Barry and Dalrymple, that: “Without resorting to dictionary definitions, ‘genuine’ and ‘bona fide’ mean largely the same thing”.
His Honour then considered the matters specifically raised by s 4AA(2) of the Act.
Duration of the Relationship
His Honour found that the duration of the relationship was not inconsistent with the parties having a relationship as a couple living together on a genuine and domestic basis.
Nature and Extent of the Common Residence
His Honour noted that there is no requirement in the Act that the parties live together all the time or even for a majority of the time.
His Honour found that there was not a necessary difference between the parties as to the occasions the appellant spent at the D apartment. The appellant said that it was infrequent during the working week but that he often slept over on the weekends whilst the respondent asserted that it was no less than three nights a week.
The appellant left an electric toothbrush and shaving equipment at the D apartment for his use but he stored most, if not all, of his business clothes at his K premises. Relying on the evidence of the respondent’s mother and Mr M the trial Judge found that the appellant kept a large quantity of clothes at the D apartment.
His Honour found that the parties visited the respondent’s mother in Queensland between two to four times per year and enjoyed family time with the respondent’s family at Christmas and New Year and at significant family occasions. They spent many weeks each year away on weekends together.
Overall, his Honour found that the facts favoured a finding that the parties had a relationship as a couple living together on a genuine domestic basis.
Whether a Sexual Relationship Exists
The parties had such a relationship throughout the period of cohabitation which the trial Judge found to be a factor in favour of the respondent.
The Degree of Financial Dependence or Inter-Dependence
Apart from the purchase of the D apartment, referred to earlier, the parties kept their finances separate. They shared the cost of the apartment in the proportions previously referred to and shared equally in the cost of furnishing it. They shared the cost of joint travel, with the appellant generally paying or using his Frequent Flyer points for airfares and the parties sharing the other costs. His Honour found this factor was equivocal but slightly favoured a finding that the parties had a relationship as a couple living together on a genuine domestic basis.
The Ownership, Use and Acquisition of their Property
The trial Judge found that the ownership, use and acquisition of the D apartment supported the respondent’s claim.
The Degree of Mutual Commitment to a Shared Life
His Honour noted that this was a very difficult question in the context of this case.
His Honour also noted that the parties enjoyed a shared life and consistently, rather than exclusively, shared accommodation and many other activities, both recreational and day-to-day.
His Honour noted that at one level it was not possible to gainsay the evidence of the appellant that he did not have a commitment to life with the respondent as that was something only the appellant could say. His Honour continued at [128]:
On the other hand … it is legitimate to consider the way in which the parties comported themselves.
His Honour then referred to the appellant’s evidence of other relationships and noted that no corroborating evidence had been called. His Honour appears to have accepted the respondent’s evidence that she was unaware of any such relationships and did not acquiesce in them.
The trial Judge found that in December 2006 the appellant gave the respondent an expensive ring, describing it to her and her mother as a “promise” ring and a “commitment” ring.
His Honour then referred to the appellant’s evidence that, at all relevant times, he did not want his relationship with the respondent to be characterised as a de facto relationship.
His Honour found that the appellant went out of his way to spend time with the respondent. He engaged in cooking, which he had previously not done, because it pleased the respondent and provided a focus for a joint activity for them when they were together. His Honour found that the appellant’s evidence that he has little interest in cooking but did it only to please the respondent suggested a greater commitment to the relationship than the respondent’s evidence that he cooked because he enjoyed it.
His Honour found at [136] that the following conversation at [135] was “entirely consistent with a mutual commitment to a shared life”:
[Appellant] said: “What do you want from me?”
[Respondent] said: “Nothing, I only want you.”
[Appellant] said: “That’s good because this is all I can offer you.”
[Respondent] said: “Okay, I understand.”
His Honour found that the evidence revealed that the parties displayed a substantial mutual commitment to a shared life.
The Care and Support of Children
There were no children of the relationship and this provision has no application.
The Performance of Household Duties
The trial Judge found that although there were cleaners employed and the parties had the assistance of the appellant’s driver the respondent undertook some domestic chores from which the appellant benefited and that, overall, the evidence about this factor was consistent with the respondent’s claim.
Reputation and Public Aspects of the Relationship
The trial Judge noted the evidence of the appellant’s former driver that he was told by the appellant’s personal assistant to drive the appellant and his “partner” to the airport. The trial Judge described that evidence as important because it was not refuted by the appellant.
The trial Judge found that the parties conducted formal functions and personal milestones (such as the appellant’s fiftieth birthday) as a couple. There was a very good relationship between the appellant and the respondent’s family. He referred to the respondent’s mother as “mum”, which he agreed he used as a term of endearment.
The trial Judge did not accept the evidence of the appellant that throughout the period of this relationship he had significant relationships with other women for whom he bought expensive gifts from time to time. His Honour at [148] found that there was no evidence that at the time of this relationship the appellant had any other relationship that had similar features “to the agreed elements of the parties’ relationship – no jointly purchased apartments; no regular time under one roof; no joint travel; no expensive rings and other gifts; not even “feel good” conversations about living overseas for part of each year etc.”
The trial Judge did not accept the appellant’s evidence that the respondent was aware that the appellant was having sexual relations with other women throughout the period of their relationship.
His Honour found that the circumstances referred to largely supported the respondent’s case.
Trial Judge’s Conclusion
His Honour concluded at [152]:
Every relationship is different and s 4AA of the Act expressly provides that there is no specified circumstance for a finding that a de facto relationship existed. There were a few countervailing facts but taken together, the evidence supports a finding that the [respondent] and the [appellant] lived together in a de facto relationship for the purposes of proceedings under s 90SM of the Act from August 2004 until 21 September 2010.
Principles to be Applied on Appeal
An appeal under s 94 of the Act is by way of rehearing. In Allesch v Maunz (2000) 203 CLR 172 the majority said at 180:
For present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are excisable only where the appellant can demonstrate that, having regard to all of the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error. (Reference omitted)
It is thus necessary for the appellant to demonstrate error on the part of the trial Judge.
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).
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.
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.
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.
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.
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.
The Appeal
It is convenient to deal with the grounds of appeal pursuant to the Amended Notice of Appeal filed 19 April 2013 in the order and manner in which they are dealt with in the appellant’s Summary of Argument filed 18 June 2013.
Ground 6
Ground 6 is reproduced as follows:
In particular, given the failure to have regard to s 140(2) of the [Evidence Act], the primary judge erred in rejecting the contemporaneous representations of the applicant that she was single and not in a de facto relationship, those representations having been made to:
a. the Australian Taxation Office;
b. the Chief Commissioner of State Revenue (in relation to land tax);
c. M (a mortgage provider); and
d. G (a finance provider),
in circumstances where:
i.the rejection of the truth of those representations necessarily constituted a finding that the applicant had engaged in the conduct of making false statements to third parties in order to procure a financial advantage; and
ii.the applicant adduced no evidence that during the alleged de facto relationship she made any contemporaneous written representation that she was in such a relationship.
These representations and the manner in which the trial Judge dealt with them have been identified earlier. It was submitted by the appellant that the trial Judge made no finding about this evidence, but briefly mentioned it and ultimately, in error, ignored it.
His Honour discussed the representations extensively under the heading “Credit”. He discussed the two alternative submissions of the appellant (that the representations were true and thus evidence against the respondent, or were false, thus damaging her credit generally).
His Honour’s discussion ended with his Honour saying at [55]:
In this case the issue is whether the parties’ relationship in fact meets the statutory definition.
We understand his Honour to be saying that he did not find the representations to be determinative of the matter before him but were part of the circumstances to be taken into account when making a final determination. It follows that his Honour rejected the alternative submission that the representations were false, which he was entitled to do.
Whilst the respondent’s statements that she was single were persuasive they must be seen in their appropriate context. Each of the representations related to financial matters. There were two applications for finance, an application for exemption from stamp duty and income tax returns. The parties had not mingled their finances although they had bought a property jointly. When asked in cross-examination why she did not say that the parties were in a de facto relationship, in relation to one of the applications for finance, the respondent’s evidence was: “I never told anyone I was in a de facto – [Mr Sinclair] and I kept all our finances completely separate”.
When further pressed the respondent said that she did not think she was being misleading at the time and that “I did not understand what de facto was … and what it meant at the time”.
Given the nature of the definition of a de facto relationship in the Act the ultimate decision as to whether there is a de facto relationship at any given time is a matter for the court and not a matter for the parties. Although their perception of the nature of the relationship is a relevant matter it is not determinative.
The fact that such statements are made to lenders or government authorities does not elevate them to a higher status. In Hayes v Marquis [2008] NSWCA 10 McColl JA said at [99]:
Statements to a government authority apparently inconsistent with a party’s case may complicate the resolution of the issue of the nature of the relationship, but they are not determinative. They are taken into account as part of all the circumstances … (Reference omitted)
Further, we are not satisfied that the trial Judge ignored them. After dealing with all the matters specified in s 4AA(2), which his Honour found to be neutral or in favour of a de facto relationship, his Honour weighed those against what he described as “a few countervailing facts”.
The respondent’s representations were the most significant of the countervailing circumstances. We are satisfied that the trial Judge duly took them into account.
Ground 6 was couched in terms of s 140 of the Evidence Act1995 (Cth) (“the Evidence Act”). The reference to that section does not advance the arguments of the appellant.
Thus, this ground of appeal does not succeed.
Ground 4
Ground 4 is stated in the following terms:
The primary judge erred by failing to give adequate consideration to the respondent’s evidence that he maintained relationships with other women during the time of the alleged de facto relationship.
It is clear that the trial Judge did not find that the appellant had other relationships at the time of his relationship with the respondent that were of the same kind and nature as that relationship. His Honour was critical of the lack of detail in the respondent’s evidence. His Honour was also critical of the failure of the respondent to call evidence from any of the persons with whom he asserted he had a relationship.
The evidence of the appellant’s former driver was that he was aware that the appellant often went out to dinner with other women and once took another woman to the movies. He did not recall any knowledge of the appellant having sexual liaisons with these women and expected that he would recall these if told.
The trial Judge, not having accepted that the appellant was engaging in significant relationships with other women at the same time as that with the respondent, cannot be criticised for failing to give them adequate consideration. The determination of that factual issue was quintessentially a matter for the trial Judge.
The reasoning process that led his Honour to that view does not disclose any error. Whilst the evidence of the appellant was that he believed he was in a number of significant relationships similar to his relationship with the respondent that belief does not prove the existence of such relationships. The failure of the appellant, to call objective evidence of his own, or of other parties, to support his general statements, not surprisingly, failed to persuade the trial Judge that the appellant’s subjective belief was in fact the position.
This ground does not succeed.
Ground 7
Ground 7 is reproduced as follows:
The primary judge erred in his approach to fact finding (at judgment [63]) by drawing an adverse inference by reason of the alleged failure of the respondent to give evidence relevant to Mr [M]’s testimony and calling evidence from third parties relevant to Mr [M]’s testimony.
The driver’s evidence was relevant as to three matters – the description of the respondent by the appellant’s personal assistant as a “partner”, the clothes kept by the appellant at the D apartment and the relationships of the appellant with other women.
As to the first, the evidence was not objected to, was not the subject of cross-examination and was not the subject of evidence given by the appellant nor any person called by him, whether in reply or not. There was no application for an adjournment for any such evidence to be given.
There is no doubt that the trial Judge took into account that evidence. He did not however take that evidence into account on its own. His Honour referred to the significant evidence of the appellant’s relationships with the respondent’s family and the family occasions they had enjoyed together. Whilst the evidence of the statement made by the appellant’s personal assistant may have little probative value there was other evidence upon which the trial Judge could find that the reputation and public aspects of the relationship supported the respondent’s case.
As to the second matter, a number of witnesses, including the respondent’s mother (whose evidence the trial Judge expressly accepted in its entirety) gave evidence that was consistent with the driver’s testimony.
We have already discussed the appellant not calling evidence from the women with whom he said he had significant relationships. The driver’s evidence was that he was unaware of any such relationships. His Honour’s failure to accept the appellant’s evidence on this issue was not based solely, or even largely, on the driver’s evidence.
This ground is not made out.
Grounds 1, 2 & 3
These grounds were argued together. Ground one took issue with the overall assessment of the trial Judge and the standard of proof applied by him. Grounds 2 and 3 alleged error by way of the trial Judge failing to give appropriate weight to particular findings of fact.
Grounds 1, 2 and 3 are stated in the following terms:
1.The primary Judge erred in declaring “for the purpose of proceedings under s 90SM of the Family Law Act 1975 (Cth) that the parties lived in a de facto relationship from August 2004 until 21 September 2010” in circumstances where:
(a)the whole of the evidence was insufficient in discharging the evidentiary burden that rested on the applicant to satisfy the Court that her case was proved on the balance of probabilities in accordance with s 140 of the Evidence Act 1995 (Cth) …; and/or
(b)the whole of the evidence did not and could not establish a “reasonable satisfaction” on the preponderance of probabilities such as to sustain the relevant issue as explained by Dixon J in Axon v Axon (1937) 59 CLR 395 at 403; [1937] HCA 80.
2.The primary judge erred by giving insufficient weight to the requirement that to establish the existence of the de facto relationship as alleged, the applicant was required to prove “a relationship as a couple living together on a genuine domestic basis” in circumstances where his Honour also found:
a.that the applicant, at material times, did not consider herself to be in a de facto relationship (Judgment at [54]);
b.“It is likely that at all relevant times the Respondent very deliberately did not want to be in a relationship that would attract the provisions of a scheme such as Part VIIIAB of the Act” (Judgment at [68]);
c.“At one level it is not possible to gainsay the Respondent’s testimony that he did not have a commitment to life with the Applicant.” (Judgment at [128]);
d.the parties maintained separate residences, the applicant living in [D] and the respondent at [K].
3.The primary judge erred in circumstances where he accepted (at Judgment [68]) that there was “no doubt” that the respondent saw the relevant relationship from his subjective perspective (which was inconsistent with a genuine domestic relationship) but by having no regard to that subjective view in assessing whether a “genuine domestic basis” existed.
It was submitted by the appellant that the whole of the evidence was insufficient to establish a reasonable satisfaction on the preponderance of probabilities, that there was a de facto relationship as defined by the Act because a case in which a de facto relationship is sought to be established is the one that requires proof at the higher end of the test set out in Briginshaw v Briginshaw (1938) 60 CLR 336. It was submitted that the court must be satisfied on the balance of probabilities not just in the “tipping the bar sense”, but on a higher level, and that the relationship need be strictly proved. This is so it was submitted because the obligations that arise from the finding of a de facto relationship are significant and grave. It was submitted that s 140 of the Evidence Act needs to be understood in that light.
No authority was cited for these submissions.
In Briginshaw Dixon J said at 362:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.
In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 the majority said at 449-450:
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. [References omitted].
There are many instances where findings have a significant and grave effect but where proof needs only to be to the ordinary civil standard. There is only that standard or the criminal standard. There is not a third. It is enough that the applicant bears the onus of satisfying that standard.
For example, a finding under s 79A of the Act has significant consequences but need be proven only on the ordinary balance of probabilities. There is nothing about the existence of a de facto relationship that requires an approach based on the existence of a de facto relationship being akin to fraud or criminal conduct. Rather, a de facto relationship is something that is commonplace amongst members of society. There is no basis for requiring proof on anything other than the ordinary civil standard.
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:
[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.
…
[66]The issue, as it seems to me, is the nature of the union rather than how it manifests itself in quantities of joint time. It is the nature of the union – the merger of two individual lives into a life as a couple – that lies at the heart of the statutory considerations and the non-exhaustive nature of them and, in turn, a finding that there is a “de facto relationship”.
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). At 86,682 their Honours said:
It 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”.
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.
It is also to be remembered, perhaps making the task of a trial Judge applying s 4AA more difficult, that the nature of relationships and commitments for both married and unmarried couples find expression in many different domestic arrangements. The application of the statutory criteria to reach a conclusion must be done judicially. It is difficult, absent error, for an appeal court to interfere, even if it would not itself have reached that conclusion.
Each of the matters raised by these grounds was taken into account by the trial Judge. Any attempt to regard any particular factor as determinative or having particular importance is contrary to the approach to be taken as identified in Lynam v Director-General (supra).
As to the overall result, whilst it is possible that other judges undertaking the same exercise may have come to a different conclusion that is not to the point. The conclusion of the trial Judge was open to him on the facts before him and no error in his Honour’s reasoning has been identified.
It was submitted that the essence of “coupledom”, or the merger of two lives, required a common residence which was submitted to be lacking in this case. For the reasons already given this must be rejected.
In written submissions the appellant identified some 27 matters which he asserted the trial Judge failed to consider. Each of these was clearly referred to by his Honour and there is no reason to think they were not taken into account. Most of these have already been addressed in this judgment.
The significant matter that remains to be dealt with is the number of findings said not to be taken into account which related to the parties keeping their finances separate. It is true that the parties kept their finances separate, save in relation to the acquisition to the D apartment. The manner in which it was acquired is consistent with there being a de facto relationship, even if it is also consistent with some other relationship in which the parties jointly purchased a property. What is significant and telling is the joint acquisition and shopping for furniture for the D apartment. It is consistent with the acquisition of a home. His Honour concluded that the evidence revealed that the parties displayed a substantial mutual commitment to a shared life. That was a conclusion that was open to him.
We are not satisfied that the trial Judge failed to take into account these matters. Consequently, these grounds are not made out.
Summary
For these reasons the appeal will be dismissed.
Costs
At the end of the proceedings we invited the parties to make submissions as to costs. The appellant was entirely unsuccessful. There is no reason why he should not pay the costs of the appeal.
I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Thackray and Aldridge JJ) delivered on 27 August 2013.
Associate:
Date: 26 August 2013
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