VIZE & GADSDEN
[2016] FamCAFC 167
•25 August 2016
FAMILY COURT OF AUSTRALIA
| VIZE & GADSDEN | [2016] FamCAFC 167 |
| FAMILY LAW – APPEAL – SECTION 90RD DECLARATION – Where the appellant appeals the dismissal by the trial judge of the application for a declaration that a de facto relationship existed between the parties – Where it is clear that a trial judge exercises a wide discretion in determining whether a de facto relationship existed pursuant to s 4AA(4) of the Family Law Act 1975 (Cth) – Where here it is suggested that the trial judge has mistaken the facts and has failed to take account of some material consideration in the exercise of that discretion – Where there is no merit in any of the grounds of appeal and many grounds were unsustainable and misconceived – Appeal dismissed. FAMILY LAW – APPEAL – COSTS – Where the respondent sought an order for costs in the event that the appeal was dismissed – Where the appellant opposed such an order on the basis of her financial circumstances and that this was a finely balanced case such that it was appropriate to bring the appeal – Where impecuniosity is not a bar to an order for costs being made where there are other circumstances that justify such an outcome – Where the appellant was wholly unsuccessful in the appeal – Where this was not a finely balanced case such that it was reasonable to have brought the appeal – Where the respondent has been put to the unnecessary cost of responding to the appeal – Costs ordered on a party/party basis in favour of the respondent. |
| Family Law Act 1975 (Cth) – ss 4AA and 90RD Family Law Rules 2004 (Cth) |
| D & D (Costs) (No 2) (2010) FLC 93-435 De Winter and De Winter (1979) FLC 90-605 House v The King (1936) 55 CLR 499 Lynam v Director General of Social Security (1983) 52 ALR 128 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Whisprun Pty Ltd (formerly Northwest Exports Pty Ltd) v Dixon (2003) 200 ALR 447 |
| APPELLANT: | Ms Vize |
| RESPONDENT: | Mr Gadsden |
| FILE NUMBER: | MLC | 2835 | of | 2014 |
| APPEAL NUMBER: | SOA | 33 | of | 2015 |
| DATE DELIVERED: | 25 August 2016 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 3 December 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 13 April 2015 |
| LOWER COURT MNC: | [2015] FCCA 885 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Goddard |
| SOLICITOR FOR THE APPELLANT: | Portelli & Co |
| COUNSEL FOR THE RESPONDENT: | Mr Hutchings |
| SOLICITOR FOR THE RESPONDENT: | Waters Lawyers |
Orders
The appeal be dismissed.
The appellant pay the costs of the respondent of and incidental to the appeal, such costs to be as assessed on a party/party basis in default of agreement.
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 Vize & Gadsden 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).
|
Appeal Number: SOA 33 of 2015
File Number: MLC 2835 of 2014
| Ms Vize |
Appellant
And
| Mr Gadsden |
Respondent
REASONS FOR JUDGMENT
Introduction
By Amended Notice of Appeal filed on 30 October 2015, Ms Vize (“the appellant”) appeals the order made by Judge Stewart on 13 April 2015 dismissing the application of the appellant seeking “a declaration pursuant to section 90RD of the Family Law Act 1975” (Cth) (“the Act”). Mr Gadsden (“the respondent”) opposes the appeal.
On 13 April 2015, her Honour found that she was “not satisfied that the parties were living together on a genuine domestic basis as is required to found the jurisdiction of this Court” (at [126]), and declined to make the order as sought by the appellant.
At the outset of the hearing before me I made orders permitting the appellant to rely on her Amended Notice of Appeal filed out of time on 30 October 2015, and permitting the respondent to rely on his summary of argument and list of authorities, also filed out of time on 30 November 2015.
Background
At the time of trial, the appellant was aged 41 years and the respondent was aged 46 years.
The parties met over the internet in 2006. The appellant asserts that the parties commenced a de facto relationship in March/April 2006 which relationship came to an end in December 2013. The respondent asserts that the parties “[had] never lived together [in] a genuine domestic relationship” (at [8]).
The parties have two children, X born in 2007 and who was aged eight years at the time of trial, and Y born in 2008 and who was aged seven years at the time of trial. The appellant also has a child from a previous relationship who was aged 13 years at the time of trial.
By order made on 24 April 2014 the children live with the respondent and spend “limited time” with the appellant, and when they are with the appellant another adult must be in “substantial attendance” (at [12]).
The parties agreed at trial that, save and except for a period in June 2007 of between two or four weeks, they have maintained separate homes.
On 3 October 2008 the parties executed a Binding Financial Agreement (“BFA”) with a view to marrying. However, they did not marry and continued to maintain separate homes. The appellant asserts that she signed the BFA “under either duress or coercion exerted by the [respondent]” (at [20]).
From 2009 until 2013 the Department of Human Services had extensive involvement with the family, resulting in the respondent providing an undertaking that he would not leave the children in the care of the appellant for longer than one hour, unless the children were sleeping.
The relevant legislation
Section 4AA of the Act provides as follows:
DE FACTO RELATIONSHIPS
4AA 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.
…
The reasons for judgment of 13 April 2015
At [19] her Honour set out the dispute between the parties as follows:
a)whether or not they were in a de facto relationship prior to 3 October, 2008; and
b)whether or not they were in a de facto relationship subsequent to 3 October, 2008;
c)if they were in a de facto relationship either before or after 3 October, 2008, the duration of that de facto relationship and when it broke down;
d)if they were in a de facto relationship either before or after 3 October, 2008, whether the Binding Financial Agreement is a binding instrument which exclusively deals with the manner of dealing with their respective property and resources following the breakdown of their relationship, thereby rendering this Court incapable of making orders with respect to property matters between them. This dispute will become relevant if a de facto relationship existed.
Her Honour then turned to consider whether there was a de facto relationship “which [would] found the jurisdiction of this Court” (at [31]), setting out s 4AA of the Act, and the matters to be considered under s 4AA(2).
At [35] her Honour recorded that “[e]ach of the parties … was an inaccurate historian”, and the respondent had a tendency to “minimise the nature of the parties’ relationship”, he being “driven by a longstanding desire to protect his financial assets from the [appellant]” (at [36]). On the other hand the appellant “was driven by a desire to achieve a particular legal and financial outcome” but she was also invested in whether or not a de facto relationship was found to have existed, “as if that somehow would validate her position in this relationship” (at [37]).
Her Honour recorded that one of the hurdles the appellant must overcome was her receipt of Centrelink benefits as a result of her declarations that she was not living with another person. Her Honour also noted (at [38]) that the appellant had “been convicted of numerous dishonesty offences in the State criminal courts and [had] served a period of imprisonment in relation to some of those offences”. In the end result her Honour found that “[i]n a very general overall sense” she preferred the evidence of the respondent over that of the appellant (at [39]).
Her Honour set out the evidence of the respondent, recording that he was adamant that the relationship was “casual, physical and nothing more than that” (at [43]), and that “any relationship he had was merely ancillary to his concern for the welfare of the children” (at [44]), but her Honour found that in certain respects his “evidence was exaggerated and unbelievable” (at [45]).
At [46] her Honour set out the aspects of the respondent’s case which she found to be “significant” in his “description of his relationship”, as follows:
a)The [respondent] would take the children from the [appellant’s] home and travel with them to his parent’s home where they would stay the night. He did this in order to be able to work and care for the children;
b)There is no suggestion that the [respondent] spent any time with the [appellant] without the children present in the [appellant’s] home or otherwise. Thus, one of the features of a commitment to a shared life or of being a couple, namely spending some time as a couple without their children present, is absent in this relationship. I would not necessarily regard its absence as determinative, however this fact must be considered in the particular circumstances of this case;
c)On the objective and conceded evidence the Department of Human Services had mandated the [respondent’s] involvement with the children and in order to fulfil his obligations and allow the [appellant] to have reasonable time with the children he was required to be regularly present in the home.
The respondent called one witness, namely Mr S who he had been friends with since the mid-1980s. Mr S shared the respondent’s home when he was in Australia, he travelling to Country M frequently to visit his wife and children who lived there. Her Honour found Mr S’s evidence to be limited but that he was not “untruthful” (at [53]).
Her Honour noted at [54] that the respondent did not call his parents and that, although their evidence may have been limited, the inference to be drawn was that their evidence “would not have been helpful to [him]”.
Her Honour turned to consider the evidence of the appellant and her witnesses, and at [61] recorded her “misgivings about the evidence the [appellant] has given with respect to the Binding Financial Agreement, how it was entered into and whether the [appellant] was ‘forced’ to enter the agreement”.
Her Honour also expressed concern about the false statements made by the appellant to Centrelink.
At [67] her Honour again found that she preferred the evidence given by the respondent except where the appellant’s “evidence [was] corroborated by others”.
The appellant called six witnesses, but her Honour found that with the exception of the evidence given by the appellant’s mother and her sister, most of the evidence of the other witnesses went to public aspects of the parties’ relationship and was of little assistance. With regard to the evidence given by the appellant’s sister, her Honour “accepted that [she had] observed the parties interacting as a couple from time to time, sharing a residence from time to time and [had] witnessed verbal abuse by the [respondent] towards the [appellant]” (at [96]). The evidence of the appellant’s mother was accepted by her Honour, she giving evidence that from her observations of the parties “she thought [they] were in a committed loving relationship” (at [100] and [102]).
Her Honour then turned to consider the legal issues, noting that “while the onus is on the [appellant] to prove on the balance of probabilities that a de facto relationship existed, the Court may attach whatever weight it considers appropriate” (at [104]).
In considering s 4AA(2) of the Act, her Honour found as follows:
a)The parties were in a relationship for a period of seven years (at [107]).
b)The existence of separate residences does not preclude the existence of a de facto relationship, and the evidence given by the respondent of the time he spent in the appellant’s home “[was] unreliable and likely to be underestimated” (at [109]), and he likely “spent a greater amount of time in the home than [was] suggested by him” (at [110]).
c)There was no requirement to make a finding as to whether or not a sexual relationship existed as that was not “persuasive as to the existence or otherwise of a de facto relationship in the particular circumstances of this case” (at [112]).
d)There was “practically no financial interdependence between the parties” (at [113]).
e)During their relationship the parties acquired no property together (at [115]).
f)The time the parties spent together and their descriptions of that time spent “[lacked] any real sense of joint focus or a productive and meaningful relationship for either of them … [and] their lives were enmeshed primarily for the children” (at [116]).
g)At the time of entering into the BFA the parties were not living together (at [117]).
h)With regard to the care of and the commitment to their children, in light of the “demonstrated deficits” of the appellant’s support of the children and the restrictions imposed by the Department on the respondent, “unusually [her Honour was] not of the view that the caregiving arrangements for the children [could] necessarily be overly persuasive of the existence of a de facto relationship” (at [121]).
i)The parties presented to others “as a loving and committed couple … supportive of each other in an emotional and physical way”, however that was not “a truthful reflection of what happened behind closed doors” (at [122]).
In conclusion, her Honour found as follows at [126]:
The matters set out above for consideration as set out above (sic) clearly indicate that there are some aspects of the parties’ relationship which would tend to indicate a shared life on a genuine domestic basis however equally there are some aspects which militate against that conclusion. In the overall balance, and considering all aspect of their relationship as it was described before me I am not satisfied that the parties were living together on a genuine domestic basis as is required to found the jurisdiction of this Court.
The appeal
There are ten grounds of appeal promoted by the appellant in the Amended Notice of Appeal. Grounds 1 – 9 inclusive appear to challenge her Honour’s findings in relation to discrete factual issues that her Honour was able to, but not obliged to consider, in the exercise of her discretion in determining whether there was a de facto relationship here within the meaning of the Act. Ground 10 then makes the general assertion that her Honour’s dismissal of the application “was an unreasonable exercise of her discretion”. Presumably, and this seemed to be confirmed in oral submissions by the appellant’s counsel, the exercise was unreasonable because of her Honour’s asserted errors identified in Grounds 1 – 9. Indeed, the appellant’s counsel described this ground as a “catch-all”.
There is no doubt that in determining whether a de facto relationship existed, a trial judge exercises a wide discretion, and s 4AA(4) makes that quite clear.
The circumstances in which an Appeal Court is able to interfere with the trial judge’s exercise of discretion are well known; and I need do no more than refer to what the High Court said in House v The King (1936) 55 CLR 499 at 504 – 505:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
Here there is no suggestion that her Honour has “acted upon a wrong principle”, and there is no suggestion that her Honour has allowed “extraneous or irrelevant matters to guide or affect [her]”. It seems to be suggested that her Honour has mistaken the facts (Grounds 2, 5, 6 and maybe 7), and that she has failed to “take into account some material consideration” (Grounds 1, 3, 4 and 8). There is no suggestion that her Honour did not make clear “how [she] reached the result” she did, and that this court should “infer that in some way there has been a failure properly to exercise the discretion”.
Finally, I observe that Grounds 8 and 9, and possibly 3 and 7 also comprise weight challenges, and there are significant hurdles that the appellant has to overcome to succeed on that basis, and I will elaborate on that later in these reasons if necessary.
I make two further points at this stage. First, in considering her Honour’s findings of fact, it is significant that there is no challenge to her Honour’s finding that she preferred the evidence given by the respondent, except where the appellant’s “evidence [was] corroborated by others” (at [67] and see [39]).
Secondly, in my view, the following comments by Fitzgerald J in Lynam v Director General of Social Security (1983) 52 ALR 128, in determining for the purposes of the social security legislation whether two parties were living together as husband and wife on a bona fide domestic basis, are as relevant and as apt here as they were in that case. His Honour said this at 131:
…Each 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.
With that background I turn to the grounds of appeal.
Ground 1
The learned trial judge failed to make findings of fact on disputed evidence regading (sic) the parties (sic) care of their children and therefore failed to properly consider the parties’ continued care and support of their children in determining whether they were in a de facto relationship.
The trial judge addressed the topic of the care and support of the children in [120] and [121] of the reasons for judgment as follows:
120.This is one of the more troubling aspects of this case. Quite clearly the parties have a joint and mutual commitment to their children. They had children early in their relationship and yet have maintained separate residences throughout.
121.The care of the children has been detailed in the evidence and it would seem that the [appellant] has some demonstrated deficits in relation to her care of the children, including [Z]. The [respondent] says that this makes his ongoing presence at the [appellant’s] home explicable and the requirements imposed by the Department of Human Services would suggest this is so. In this case, and unusually, I am not of the view that the caregiving arrangements for the children can necessarily be overly persuasive of the existence of a de facto relationship.
However, these paragraphs comprise her Honour’s conclusions based on the evidence that was before her from the parties and their witnesses. In detailing that evidence earlier in her reasons for judgment, her Honour has plainly addressed, to the extent necessary, many of the matters that the appellant asserts her Honour failed to consider. For example, there are her Honour’s findings at [46]. Thus, it is important to consider the reasons for judgment as a whole, and not to dissect it and merely refer to some specific paragraphs when suggesting an absence of findings.
Crucially though, a trial judge is not required to resolve any factual dispute even if asked to do so (Whisprun Pty Ltd (formerly Northwest Exports Pty Ltd) v Dixon (2003) 200 ALR 447 at [62]). Rather, the task of the trial judge is to determine factual disputes, the resolution of which is relevant to the ultimate decision. This proposition is also reflected in s 4AA(4) of the Act which provides that her Honour is entitled to have regard to such matters and attach such weight to those matters as may seem appropriate in the circumstances.
Here, her Honour found that “the care-giving arrangements for the children” were not “overly persuasive” of the existence of a de facto relationship, and it has not been demonstrated that her Honour was plainly wrong in that conclusion.
Finally, I make two observations. First, even if her Honour did fail to make all of the findings necessary to quell every dispute about the facts, it is not apparent from anything put on behalf of the appellant, how that failure demonstrates that her Honour’s decision is unsafe and should be set aside. Secondly, it must not be forgotten that her Honour generally preferred the evidence of the respondent over that of the appellant, and that finding is unchallenged and clearly undermines the basis of the complaints made in this ground.
There is no merit in this ground of appeal.
Ground 2
The learned trial judge erred in finding that there was a requirement imposed by DHS that the Respondent did not leave the children in the sole care of the Appellant for lengthy periods of time from 2009 onwards.
This is an asserted mistake of fact, however an analysis of the evidence before her Honour demonstrates that there is no mistake, and it was open to the trial judge to make the finding that she did.
The finding appears in [110] where her Honour said this:
110.I accept that the [respondent] spent a greater amount of time in the home than is suggested by him. However, the [appellant] also states that such time was predominately weeknight time and it seemed to be focussed around the children’s presence in the home. This case has the unusual overlay of the requirement of the Department of Human Services that the [respondent] not leave the children in sole care of the [appellant] for lengthy periods and therefore, at least from 2009 the [respondent’s] presence in the home needs to be viewed in that light. While I am not satisfied that the [respondent] was wholly compliant with the Department of Human Services’ requirements, particularly when the [appellant] travelled to Queensland with the children, he seems to have been womewhat (sic) compliant and I note in particular, and it is agreed, that he would take the children from the home of the [appellant] to spend the evening at his parent’s home during the week.
In paragraph 12 of the appellant’s affidavit filed on 19 June 2014 she “admits” paragraph 13 of the respondent’s affidavit filed on 5 May 2014 wherein he deposed that, “[o]ur children were subject to supervision orders for the approximate five year period that the Department of Human Services were involved”. Certainly the appellant went on to assert in her paragraph 12 that the respondent did not comply with the Department’s requirements, but as can be seen, her Honour recognised that in [110].
Then in cross-examination the respondent said that “[d]uring the five years that DHS was involved not once did I leave the children alone with her longer than half an hour” (Transcript 15.12.2014, page 36, lines 11 - 12), and importantly it was never put to the respondent that the Department had not imposed restrictions.
It seems to be the case that there is no issue that the requirements of the Department were in place, which is inconsistent with the complaint raised in this ground. Rather, the issue seems to be to what extent the requirements were complied with, and there is no complaint raised here as to her Honour’s finding in that regard.
It is suggested in the written argument of the appellant that it was open to the respondent to seek to tender documents, if they existed, to establish that the supervision requirement existed at a date earlier than February 2013. However, this submission is misconceived. The onus of establishing that there was a de facto relationship clearly fell on the appellant.
There is no merit in this ground of appeal.
Grounds 3 and 4
The learned trial judge erred in not finding the relationship to be an exclusively monogamous relationship and therefore failing to give any or sufficient weight to that fact in determining the degree of mutual commitment to a shared life.
The learned trial judge erred in finding it unnecessary to make a finding regarding the parties conflicting evidence about the nature of their sexual relationship and to assess that evidence in determining the ultimate question as to whether the parties were in a de facto relationship.
These grounds can conveniently be addressed together.
Ground 3 is a confusing ground of appeal. First, it asserts that her Honour erred in not making the finding but then says that as a result her Honour failed to give any or sufficient weight to that circumstance. It is difficult to see how if there was no finding her Honour could fail to give “sufficient” weight to it.
In any event, there is no doubt that her Honour did not make a finding that the parties’ relationship was monogamous, but as the respondent’s counsel submitted, her Honour was not obliged to make such a finding, and I hark back to the broad discretion conferred by s 4AA(4).
Her Honour clearly addressed what she felt it was necessary to consider in relation to this topic in order to arrive at her decision, and there can be no error there. Specifically, her Honour said this at [111] and [112]:
111.This relationship has produced two children and the parties agree that they have had an intimate sexual relationship for many years. There is a dispute between them as to the frequency and intensity of that aspect of their relationship towards the latter part of their relationship. Both parties’ evidence regarding this was unreliable.
112.I find it unnecessary to making a finding regarding this issue as the determination is not persuasive as to the existence or otherwise of a de facto relationship in the particular circumstances of this case.
As to Ground 4 (but also to an extent Ground 3), the appellant relies on statements by Brennan J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 to the effect that when a decision maker is bound to have regard to a matter, he does not make a valid decision if he does not determine whether to give any weight to it. However, reliance on that statement is misconceived because here the trial judge was not bound to have regard to whether there was a monogamous relationship as asserted by the appellant. Further, and far more relevantly to her Honour’s decision here, Brennan J said this at page 65:
To determine the weight to be given to a matter, however, the decision-maker must consider the significant information which he has about the matter. But if the decision-maker is empowered to make his decision on broad policy grounds without giving any weight to the matter to which the information relates, and he thinks it appropriate not to give weight to that matter or to the information, he is not bound to enquire further into that information.
There is no merit in these grounds of appeal.
Ground 5
The learned trial judge erred in finding the parties did not acquire any property together during the relationship.
It is beyond doubt that the respondent acquired real estate during the period of the relationship, and that no property was acquired by the parties “together”. That is her Honour’s finding, and her Honour was perfectly correct in so finding. Accordingly, this ground of appeal as drawn must fail.
It is apparent from the appellant’s written summary of argument that the actual complaint is that her Honour failed to make a finding regarding the appellant’s role in assisting the respondent in relation to these properties, and thus failed to consider the contributions of the appellant.
Once again though, I am satisfied that her Honour adequately considered the matters that she needed to in this regard in order to reach her decision.
There can be no merit in this ground of appeal, and there is no ground of appeal addressing the actual complaint raised in the summary of argument.
Ground 6
The learned trial judge erred in finding that there was ‘practically no financial interdependence between the parties’.
This is a ground that cannot be sustained.
Her Honour addressed the issue at [113] as follows:
113.There is practically no financial interdependence between the parties in this matter. Save for some periodic support provided by the [respondent] to the [appellant] which was related to the children the parties kept separate finances and the [appellant] supported herself and the children with Centrelink benefits. If these parties were living together on a genuine domestic basis I would have expected to see a far more amorphous blending of day to day finances. Given the superior financial position of the [respondent] and his desire to protect his financial position it is perhaps not surprising that the [appellant] did not make financial contributions to the acquisition and conservation of real property. However, what is lacking in this case is any real evidence of a melding of day to day expenditure between the separate households.
These findings reveal no error of fact or law by her Honour. The finding complained of was clearly open to her Honour on the evidence, and frankly there is no basis demonstrated for the submission of the appellant that “[t]he Court’s approach reveals of an error of law constituted by an unduly narrow construction of Section 4AA(2)(d) of the Act”.
There is no merit in this ground of appeal.
Grounds 7 and 8
The learned trial judge erred in considering the Appellant’s execution of the binding financial agreement to be an admission by her that the parties were not in a de facto relationship within the meaning of section 4AA of the Family Law Act or alternatively in giving such admission undue weight.
The learned trial judge erred in not considering the parties execution of the binding financial agreement to be a representation by them that they intended to marry and in failing to accord that representation sufficient weight in determining the extent of the parties’ mutual commitment to a shared life.
These grounds can be conveniently addressed together.
Ground 7 is misconceived. Her Honour did not make a finding that the execution of the BFA by the appellant was an admission by her that the parties were not in a de facto relationship at that time. What her Honour clearly said was that the statement in the BFA that the parties were “currently not living together” was “indicative that no de facto relationship [existed] as at October, 2008”, and it was “inconsistent with the [appellant’s] evidence” (at [63]). That finding was plainly open on the evidence.
Given that, there is also no failure to provide procedural fairness here. In her summary of argument the appellant submitted that for her Honour to find that there was an admission against interest without that having been put to the appellant was “a breach of procedural fairness”. However, not only is there no ground of appeal raising this, but to repeat, her Honour made no such finding.
Further, given that no such finding was made, there can be no suggestion that her Honour accorded the alleged admission “undue weight”.
Her Honour of course did accord weight to the statement in the BFA, but it cannot be said that her Honour accorded undue weight to it. It was plainly a significant fact to be taken into account in her Honour’s overall consideration of whether or not there was a de facto relationship within the meaning of the Act. At the very least, it went to the issue of the credit of the appellant, given that the statement was inconsistent with her evidence. Her Honour said this at [127]:
127.I am also persuaded that the representations by the parties made in the Binding Financial Agreement and in the [appellant’s] case to Centrelink should not simply be ignored or disregarded. This does not elevate such representations to a principle of estoppel however they are two significant representations made by the [appellant] against her case, one of which was made with the assistance of legal advice directed to the relationship issues.
It also must not be forgotten that there were many factors that her Honour needed to take into account and consider in analysing the parties’ relationship, and the findings at [63] and [127] are not made in a vacuum and must be considered in light of the entirety of her Honour’s reasons.
Finally, the submission by the appellant in her summary of argument that her Honour drew inappropriate or unsafe inferences from the fact that the appellant received legal advice before signing the document, is also misconceived. It is simply not the case that her Honour drew an inference “that [the appellant] would have received advice in relation to the agreement’s bearing on an application such as the present application for a declaration as to a de facto relationship”. It bears setting out in full what her Honour said at [63], namely:
63.At the time the parties entered the agreement it was common ground that the parties were not “living together” in the sense that they continued to maintain separate residences. However, this is a formal document and the [appellant] received legal advice at the time she entered into it. She acknowledged that she and her solicitor had been through each clause together. There was no suggestion in the [appellant’s] evidence that she had provided different evidence with respect to that statement or had indicated that any of the recitals were incorrect. Nor has the [appellant] called any evidence which would suggest that the statement that the parties were not living together had any meaning other than the parties were not in a de facto relationship. In circumstances where the very substance of the agreement was to make provision for property adjustment on any breakdown of the parties relationship, (putting aside issues as to enforceability of the agreement in a legal sense) I regard this statement in agreement as indicative that no de facto relationship (sic) as at October, 2008. It is inconsistent with the [appellant’s] evidence.
To that should be added what her Honour said at [127] set out above.
In relation to Ground 8, the simple answer to the complaint raised therein is that despite the agreement recording the parties’ intention to marry, they never did. Thus, her Honour did not err in according that representation little or no weight.
Further, as seems to be conceded by the appellant in her written summary of argument, that expression of intention can say nothing about whether the parties were in a de facto relationship or not at the time.
Finally, I cannot agree with the submission of the appellant that a “representation that the parties were hopeful of marrying is contrary to the respondent’s assertion that the relationship was casual throughout”. That is simply a non-sequitur.
There is no merit in these grounds of appeal.
Ground 9
The learned trial judge failed to give sufficient weight to the parties’ reputation and public aspects of their relationship and made findings in relation to this issue in breach of procedural fairness.
Her Honour found that “to the outside world the parties presented as a loving and committed couple” (at [122]). However, her Honour went on to find that “neither party suggest that their external appearance was a truthful reflection of what happened behind closed doors” (at [122], and see [116]).
Thus, it seems that her Honour did not place much weight on “the reputation and public aspects of the relationship” (s 4AA(2)(i)), and that is the complaint here. It is said in effect that it is not a relevant consideration what the parties did “behind closed doors”. However, no authority is relied on for that proposition, and I suggest that there could be none. If in fact the parties are not in a de facto relationship within the meaning of the Act after taking into account all of the factors the court considers are appropriate to address, just because the parties appear to be a loving and committed couple to the outside world (that being itself only one of the factors to consider), cannot be determinative, and alter the outcome. Even more so if the fact that that reputation and public face does not reflect reality. I do not accept that what happens “behind closed doors” is irrelevant to what the court should have regard to.
In any event, the complaint is also that her Honour’s finding in [116] that “[a]lthough to the outside world they presented as a couple, respecting the social norms their situation would superficially dictate, by their own accounts this presentation was merely a façade” is inconsistent with the appellant’s evidence, and thus it was not a finding that was open to her Honour. Again, this misrepresents her Honour’s finding. Her Honour was referring to the evidence of both parties that the relationship was unhappy, unsatisfactory, difficult and abusive (as alleged by the appellant), and as such the finding cannot be said to be inconsistent with the appellant’s evidence. The appellant says that the conduct or behaviour of the parties is not a relevant consideration for her Honour, but again I do not accept that submission. If that behaviour or conduct undermines the public face of the parties, then that is clearly a relevant consideration.
The appellant also challenges her Honour’s finding at [116] that “there is no evidence that the parties have ever enjoyed a quiet outing or moment together which did not involve the children” (also see [46(b)]). The appellant points to unchallenged evidence from at least one of her witnesses who described social functions where the parties were present without the children. It is said, in effect, that in those circumstances, and given it was not apparent that the court was going to attach any significance to this issue, for the trial judge to make the finding set out above, there has been a breach of procedural fairness. However, I fail to see how this can be categorised as a failure to afford procedural fairness. Regardless of how significant it was, the appellant presented evidence about it and her Honour made a finding. Her Honour may have been incorrect in that finding, but that provides a quite different basis for challenge than a lack of procedural fairness.
In that regard, the appellant does make the alternate claim that the finding was “unsafe … given the dearth of evidence to support it”. However, in my view even that claim cannot lead to this court overturning the decision of the trial judge. If there has been error by the trial judge in overlooking or failing to take account of the evidence of the appellant’s witness, that is minor and its effect negligible, it cannot impugn her Honour’s primary finding that the parties were not in a de facto relationship (De Winter and De Winter (1979) FLC 90-605 per Gibbs J at 78,092).
There is no merit in this ground of appeal.
Ground 10
The learned trial judge’s dismissal of the application for a declaration pursuant to Section 90RD of the Family Law Act was an unreasonable exercise of her discretion.
None of the previous grounds of appeal have succeeded, and given the indication by counsel that this ground is dependent on the success of those earlier grounds, this ground must also fail.
For completeness, I note that in both written summaries of argument the appellant and the respondent address a ground of appeal which complained that “[t]he learned trial judge failed to give sufficient weight to the adverse inference to be drawn against the respondent for not adducing evidence from his parents”.
However, that is not a ground of appeal that is before this court any longer. It was a ground of appeal in the initial Notice of Appeal, but was deleted in the Amended Notice of Appeal. Further, it has not been resurrected, and there was no reference to it by either counsel in oral submissions. Thus, I do not propose to address this alleged ground of appeal.
Conclusion
Given that no ground of appeal has succeeded, the appeal must be dismissed.
Costs
At the conclusion of the hearing I sought submissions from the parties as to the question of costs depending upon the outcome of the appeal.
If the appeal was dismissed, the respondent sought an order for costs, which order the appellant opposed.
That opposition was on two bases, namely the respective financial circumstances of the parties, and the assertion of the appellant that this was an unusual case; that it was finely balanced; and it was reasonable to have brought the appeal.
There is no doubt that the respondent’s financial position is superior in that he has substantially greater assets than the appellant, but even impecuniosity is no bar to an order for costs being made where there are other circumstances that justify such an outcome (D & D (Costs) (No 2) (2010) FLC 93-435). Here, those other circumstances are that the appellant was wholly unsuccessful in the appeal, putting the respondent to the ultimately unnecessary cost of responding to the appeal.
As to the second basis, I cannot accept that this was a finely balanced case such that it was reasonable to have brought the appeal. As can be seen, no ground of appeal was successful, and many were plainly unsustainable and misconceived.
There should be an order for costs in favour of the respondent.
I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 25 August 2016
Associate:
Date: 25 August 2016
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