Yoxall & Eide
[2024] FedCFamC1A 200
•29 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Yoxall & Eide [2024] FedCFamC1A 200
Appeal from: Eide & Yoxall (No 2) [2024] FedCFamC1F 320 Appeal number: NAA 142 of 2024 File number: MLC 2724 of 2021 Judgment of: AUSTIN, GILL & BAUMANN JJ Date of judgment: 29 October 2024 Catchwords: FAMILY LAW – APPEAL – DE FACTO RELATIONSHIP – Appeal from the primary judge’s s 90RD declaration as to the parties’ relationship – Where the appellant asserts apprehended bias – No finding of apprehended bias – Where the appellant asserts the primary judge took into account extraneous matters – Where it is not demonstrated the primary judge improperly took into account extraneous matters – Where the appellant asserts the primary judge made an order against the weight of evidence or gave inadequate reasons – Error of fact established as to the commencement of the parties’ relationship – Error corrected by a substituted order – Costs certificates granted. Legislation: Family Law Act 1975 (Cth) Pt VIIIAB, ss 4AA, 90RD, 90SB, 90SE, 90SM
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 36
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 9
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Sch 1, r 1
Cases cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Cizek & Mihov [2024] FedCFamC1A 151
Colburn & Cleese (2022) FLC 94-105; [2022] FedCFamC1A 147
Concrete Pty Ltd v Parramatta Design & Development Pty Ltd and Anor (2006) 229 CLR 577; [2006] HCA 55
De Winter v De Winter (1979) FLC 90-605
Ebner v Official Trustee in Bankruptcy and Ors (2000) 205 CLR 337; [2000] HCA 63
Fairburn v Radecki (2022) 275 CLR 400; [2022] HCA 18
GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635; [2023] HCA 32
Hedlund & Hedlund (2021) FLC 94-065; [2021] FedCFamC1A 84
House v The King (1936) 55 CLR 499; [1936] HCA 40
Lennon & Sanil (2020) FLC 93-962; [2020] FamCAFC 109
Lynam v Director-General of Social Services (1984) FLC 91-577; [1983] FCA 274
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Velichkov & Velichkov [2024] FedCFam1CF 150
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9
Number of paragraphs: 138 Date of hearing: 28 August 2024 Place: Melbourne Counsel for the Appellant: Ms Mooney SC & Ms Fisken Solicitor for the Appellant: Belleli King & Associates Counsel for the Respondent: Ms Tulloch & Mr Ellis Solicitor for the Respondent: JAG Lawyers ORDERS
NAA 142 of 2024
MLC 2724 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR YOXALL
Appellant
AND: MS EIDE
Respondent
ORDER MADE BY:
AUSTIN, GILL & BAUMANN JJ
DATE OF ORDER:
29 OCTOBER 2024
THE COURT ORDERS THAT:
1.The appeal is allowed.
2.Order 1 made on 16 May 2024 is set aside and in lieu thereof it is declared pursuant to s 90RD of the Family Law Act 1975 (Cth) that a de facto relationship existed between the parties, ending in December 2020.
3.The appellant be granted a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to him in respect of the costs incurred by him in relation to the appeal.
4.The respondent be granted a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to her in respect of the costs incurred by her in relation to the appeal.
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 Yoxall & Eide has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN, GILL & BAUMANN JJ:
INTRODUCTION
After an eight-day hearing, a judge of the Federal Circuit and Family Court of Australia (Division 1) published reasons for judgment on 16 May 2024 and made a declaration that Mr Yoxall (“the appellant”) and Ms Eide (“the respondent”) were in a de facto relationship between March 2017 and December 2020 (Order 1).
The determination, being a jurisdictional prerequisite to the exercise of power to adjust property interests between the parties, was dealt with as a discrete hearing with the parties’ consent.
The appellant appeals against the declaration, asserting error by the primary judge on four grounds, although Ground 3 was not ultimately pressed, the remaining grounds being:
(a)Ground 1 – apprehended bias;
(b)Ground 2 – the primary judge took into account extraneous matters;
(c)Ground 4 – the primary judge made an order against the weight of evidence or gave inadequate reasons.
For the reasons which follow, Ground 4 is established; the appeal is allowed for lack of sufficient reasons, and the Court sets aside Order 1 and substitutes an order on different terms.
GROUND 1
The apprehended bias ground
During the trial the appellant sought that the primary judge recuse herself on the ground of apprehended bias. This application was based upon an exchange between the primary judge and the appellant wherein the primary judge encouraged the appellant to consider the benefits of settling the litigation, including potentially by the payment of a sum to the respondent. As a part of that encouragement the primary judge identified a suite of issues between the parties and involving their child that could be improved by settlement, as opposed to resolving the jurisdictional question by judicial determination.
The primary judge declined to disqualify herself, dismissing the appellant’s disqualification application on 4 March 2024 and giving reasons for such decision within the substantive judgment delivered on 16 May 2024.
As identified by Kirby and Crennan JJ in Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577 it is necessary to deal with this issue before other aspects of an appeal as it is an issue that goes to the validity of the trial.
The principles governing apprehended bias
The relevant law as to disqualification on the basis of apprehended bias is neatly encapsulated in Ebner v Official Trustee in Bankruptcy and Ors (2000) 205 CLR 337 (“Ebner”) as:
6.…a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should be both done and seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
(Footnotes omitted)
Further from Ebner:
8.The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits…[o]nly then can the reasonableness of the asserted apprehension of bias be assessed.
No challenge was made to the primary judge’s recitation of the law.
The complaint
The application that the primary judge recuse herself followed, and was founded upon, comments made by her to the appellant emphasising the benefits of settling the proceedings before her, and of the litigation conflict between the parties more broadly. At issue was whether the primary judge sufficiently delineated between her comments as to these matters and her role in determining the threshold issue.
At [25] the primary judge identified the first plank of the appellant’s complaint, being that her:
…comments that the respondent should pay the applicant a sum of money to resolve the proceedings, was improper and indicative of bias, because any payment could only be made if I had determined a de facto relationship existed.
(As per the original)
Secondly, complaint was made as to other matters identified by the primary judge that were foreign to the factual resolution of the threshold issue, being assertions that the primary judge “was concerned primarily to ensure that the applicant had enough money to buy a home,” and that such money should come from the wealthy appellant in the context of the disparity in wealth of the parties. The contention continued that it appeared the primary judge considered the appellant was unreasonable to challenge the jurisdiction to make orders and that, more important than the determination of the question that the primary judge was seized of, was the need for a home for the respondent and the child and that such was the only reasonable outcome of the proceedings. Further, the primary judge’s reference to salvaging the coparenting relationship between the parties and to her consciousness of the human aspect of the proceedings added to a list of matters referred to by the primary judge that were not a part of the task before her.
The primary judge recited each of these as forming a part of the complaint made against her, observing that they formed a part of the merits of settlement that she had advanced to the appellant.
Although the appellant suggested the primary judge had failed to engage with two elements of his complaint, being the primary judge’s reference to the impact upon the child, and the disparity of the wealth of the parties, these were matters specifically recited by the primary judge as forming a part of the complaint of apprehended bias, as set out at [21] and [23] of the judgment.
Accordingly, the challenge to the primary judge’s determination centred on the prejudgment that an amount ought to be paid by the appellant, despite the need to determine a threshold question of the existence of a de facto relationship prior to any consideration of payment, and taking into consideration matters not related to the determination of the de facto relationship.
Appropriately, the appellant and respondent both emphasised that the context in which the impugned comments were made is essential to the determination of the claim of apprehended bias.
Those circumstances commence with the primary judge indicating, part way through day seven of the trial, that the matter would be unable to proceed beyond the lunch adjournment that day and would then be adjourned for an extended period.
The impugned exchange shortly thereafter occurred between the primary judge and the appellant who was then giving evidence.
The precursor was the description by the appellant of three sets of proceedings involving him and the respondent, being criminal proceedings against him in which the respondent was a witness, Supreme Court proceedings which were being taken against the respondent by a corporation closely associated with the appellant, and the proceedings before this court. The appellant identified that the Supreme Court proceedings had involved nine amendments to the statement of claim, and he described that those proceedings were costing “lots of money”.
At that point, the primary judge addressed the appellant about the potential benefits of the settlement of the various proceedings. That idea appeared to be embraced by the appellant. The primary judge observed that, as a result of the adjournment of the proceedings, there was the opportunity to pursue settlement in relation to the Supreme Court proceedings and the proceedings before this Court, noting the potential to resolve the de facto proceedings without any acknowledgement of a de facto relationship on the basis of an ex gratia payment.
In that context of the potential for an ex gratia payment, the primary judge observed to the appellant that “these sorts of proceedings...can be resolved in all manner of ways,” to which the appellant expressed his agreement.
The primary judge then addressed a number of factors personal to the litigants that may be advanced by the settlement of the proceedings, including for the provision of their daughter, and the potential establishment of an amicable coparenting relationship with the respondent. The potential to resolve a parenting dispute, as part of an overall settlement was also noted. The primary judge suggested the setting aside of the conflict between the parties, to focus on what was really being fought about, which she described as being provision for the child.
Specifically, the primary judge observed in relation to an overall settlement that:
[HER HONOUR:] …There’s nothing stopping you doing that. And I’m saying this, leaving aside the legalities of the decision that I have been asked to make, because this is a very narrow ambit of dispute, as you understand, obviously, whether or not you’re in a de facto relationship and what flows from that depends on my finding about that. But I’m just saying maybe it might be a good idea for the pair of you to stop this fighting and being at loggerheads and polarised because you’re both the parents of a little five year old girl. What’s she’s going to think when she grows up?
(Transcript 7 September 2023, p.414 lines 40–47) (Emphasis added)
These observations to the appellant emphasised both that the dispute the primary judge was dealing with was narrow and confined to whether or not there was a de facto relationship, and whether there was a flow on effect on that determination, but that there were also broader issues that the parties faced. The primary judge carefully distinguished her legal task from the resolution of the conflict between the parties by settlement.
It was in this context that the primary judge observed that the case was no mere paper file, but involved human lives, the most important of which she described as being the child, and that this human aspect was a matter she thought of “all the time”. This was not, as characterised by the appellant, some indication that the primary judge would take into account on the legal question matters extraneous to that task, but rather was the primary judge’s articulation of the human cost of the litigation.
The following exchange, which again distinguished between settlement and the threshold issue, then marked one of the key points of emphasis made by the appellant:
[HER HONOUR:] Well, you’re attacking her. You’re attacking each other. That’s the nature of these proceedings, unfortunately. But in this situation, the only way it’s going to resolve is for you to make a payment to [the respondent]. Let’s talk about it in non‑abstract terms. And what you then have to think about – and this has been sort of a common theme in some of these cases, not so much to do with the threshold argument, but in terms of resolving them overall where you have a parent – one parent is very wealthy and the other parent is not. The difference in the two households between what a child experiences and how the child perceives the parent who has the wealth as opposed to the circumstances he or she finds herself in with the other parent, and a lot of these cases focus on, well, how do we ameliorate that.
How do we do something so that the child doesn’t feel disadvantaged or unfavoured or something like that when he or she becomes old enough to work out the difference in lifestyle of the parents. I’m not suggesting you give [the respondent], you know, hundreds of millions or anything like that, but at the very basic level, [the child] will probably assume that she would be accommodated in a proper house or apartment or something. Not particularly lavish, but acceptable. And she would then have a more normal life, is what I’m trying to say. This child needs to be kept away from all of this fighting and carrying on and the imbalance in wealth and power and things and just be allowed to grow up as a normal little kid. You’ve seen it with your other girls. And it’s to your credit they have a relationship with you, but do you want to be estranged from [the child], because the – as I say it, that’s what’s going to be happening. You’re having supervised time. You could have discussions about regularising your time?
[THE APPELLANT:] ‑‑‑Yes. Stop all that Nonsense. Yes.
[HER HONOUR:] Yes. That’s right. Stop all this nonsense. God knows how much money you’ve spent on lawyers in the Supreme Court and those ‑ ‑ ‑?
[THE APPELLANT:] ‑‑‑Millions.
(Transcript 7 September 2023, p.415 line 43 to p.416 line 22) (Emphasis added)
Just as the primary judge prefaced this exchange with her acknowledgement that the decision she was to make was both narrowly confined and it did not incorporate these other factors personal to the parties that are germane to settlement, so she book ended this passage:
[HER HONOUR:] Anyway, I just say that maybe turn your mind to that between now and 8 November. I mean, I will make the decision on the evidence that I’m required to make according to the law?
[THE APPELLANT:] ‑‑‑No, no. It’s hard for you, too.
[HER HONOUR:] Of course it is. But, as I said, I always think about the personal aspect of it. You can’t think about that when you’re dealing with the lives of children and people. Why would you want to be locked in some cycle of fighting with the mother of your daughter? You may not like each other personally, but at one stage you did?
[THE APPELLANT:] ‑‑‑Mmm.
(Transcript 7 September 2023, p.416 lines 33–41) (Emphasis added)
The primary judge again exhorted the appellant to consider settlement, observing the exhausting nature of such conflict.
It was against these comments that the appellant claimed the appearance of prejudgment in the sense of a determination to make substantive orders regardless of the merits of the threshold issue of jurisdiction. It was submitted to the primary judge that any reference to payment was both improper and indicative of bias because payment requires the determination of the threshold jurisdictional issue. It was submitted that the comments left the impression that the primary judge may take into account extraneous matters.
The primary judge concluded that a fair-minded lay observer would not, in the context, consider the comments as directed other than to the resolution of all proceedings, rather than just the threshold proceedings, particularly when specific reference had been made, in the absence of such settlement, to determination of the threshold issue. Similarly, the primary judge concluded that her comments would not have the effect of leading a fair-minded lay observer to consider that her purpose in hearing the threshold proceedings, was to ensure there were sufficient funds for a home, or that the appellant was unreasonable to challenge jurisdiction, or that payment to the respondent was the only reasonable outcome.
The question to resolve then is whether the primary judge was incorrect in such a conclusion. An appeal by rehearing, as this is, cannot succeed unless the appellant demonstrates appealable error (Allesch v Maunz (2000) 203 CLR 172 at 179–181 and 187).
It is axiomatic that no order for the payment of money could be made absent the finding of a de facto relationship. Similarly, the other matters raised by the primary judge can be accepted as being matters that do not bear upon the determination of the jurisdictional prerequisite.
As to the matters that do not go to the determination of the threshold issue, it may be accepted that, as identified by the primary judge, the parties were required by Sch 1, Pt 1, r 1(5) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) as they apply to financial proceedings, to have regard to the child’s best interests. This is so whether or not those best interests form a consideration in determining the matter before the court. As a matter of practicality, it may be accepted that a settlement would in all likelihood involve, as described by the primary judge, a payment to the respondent by the appellant. Other factors raised by the primary judge in her exchange with the appellant were plain in the proceedings, being the financial disparity between the parties, the poor nature of their relationship, their status as coparents of their child, and their involvement in multiple fronts of litigation involving each other.
However, what was also plain was the delineation that the primary judge repeated on three occasions during the exchange, being that what she was required to determine was distinct from the matters that might inform the parties deciding to resolve their matter by consent.
What was emphasised by the primary judge was that a payment by the appellant to settle the matter was not predicated upon her determination of the matter before her, that her determination of the matter fell outside such a resolution of the proceedings, and that the resolution of the threshold issue was distinct from the parties finding the means to resolve their conflict by settlement.
Although the primary judge expressed the benefits of settlement in a frank manner, the primary judge was clear in her expression of the separateness of such from what she would otherwise determine.
The question is what would be made of overall exchange by a fair-minded lay observer. Would the press to settle cause such a person to reasonably apprehend that an impartial mind might not be brought to bear on the threshold issue?
In considering such, as identified by the primary judge, the criterion is concerned with a real, not remote possibility rather than probability, is to be considered in the light of all the circumstances, from the perspective of an observer who, although not intimately acquainted with legal process is aware of ordinary judicial practice. That perspective is “fair minded,” neither complacent, nor unduly sensitive or suspicious.
What such an observer was met with in this case did not involve any comment by the primary judge about a matter connected to what had to be determined. There was no indication that the primary judge had formed a view about an element of what was to be decided by her. Rather, at the start, during, and at the finish of the exchange the primary judge indicated that what was being spoken of was distinct from what she was required to determine. It was framed in terms of the human impact of the litigation upon these parties, and the potential for settlement to act as a salve upon those matters.
The primary judge emphasised that her responsibility to resolve was on a narrow basis and remained her responsibility absent another resolution between the parties.
The delineation made by the primary judge was clearly expressed and stands against a conclusion that a fair-minded observer might reasonably apprehend an impartial mind may not be brought.
The recital by a trial judge of matters that are not to be determined may, in some circumstances, raise a question of impartial mind. As identified above a suite of such matters were raised by the primary judge. However, they were specifically raised as matters that pointed to the benefit of settlement, and as matters distinct from what was being determined by the primary judge.
Whether it was the benefit of providing for the child, the potential to soothe a hostile coparenting relationship, or the desirability of avoiding the expense of ongoing litigation, each was identified as germane to settlement, but outside the narrow ambit of what the primary judge was tasked to determine.
When the exchange is seen in context, both of the proceedings before the primary judge and of the parties’ conflict more broadly, when the comments made by the primary judge as to what could be achieved by settlement are given their full weight, in the company of her comments about how a settlement may be procured, they still sit within the sharp delineation made by the primary judge between her role in determining the threshold issue, and her understanding of those broader issues that beset the parties.
That delineation, in its context, answers the question as to what the fair-minded lay observer might reasonably apprehend as to exclude a reasonable apprehension of possible bias.
Ground 1 fails.
GROUND 2
Asserted factual error by taking into account extraneous matters
The “extraneous matters” which this ground alleges were wrongly taken into account were a selection of the considerations identified by the primary judge in the discussion with the parties concerning their prospective settlement of the dispute. It follows from the preceding discussion about Ground 1 that issues raised by the primary judge, in context, did not support a finding of apprehended bias. Whilst that alone could deal with Ground 2, for completeness, the ground asserted fails because:
(a)The appealed judgment was not a discretionary judgment. We adopt the statement articulated by Austin J in Cizek & Mihov [2024] FedCFamC1A 151 at [86] that:
Once accepted that this ground relies upon legal principles relating exclusively to appeals which lie from discretionary judgments, the defect in the ground becomes patent. The appealed judgment was not a discretionary judgment. Rather, it was an evaluative factual judgment (Colburn & Cleese (2022) FLC 94-105 at [32]; Lennon & Sanil (2020) FLC 93-962 at [8]). The question of whether a de facto relationship ever existed between the parties is capable of only one correct answer and the choice is binary: either yes or no. Discretionary judgments are different because the law admits of more than one correct answer within a tolerable range (GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635 at [16] and [26]).
(b)This being an evaluative factual judgment, the appeal from it is governed by the “correctness” standard rather than the well established principles identifying appealable error from a discretionary judgment in House v The King (1936) 55 CLR 499 at 504–505 (see GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635 at [15]–[17] and [23]–[26]);
(c)As a result of applying the “correctness” test, the appellant must demonstrate a legal or factual error which is material to the outcome. The ground, as pleaded, is a species of discretionary error that cannot found an appeal from a factual judgment;
(d)Despite the manner in which this ground was pleaded, exclusively as a discretionary error, the appellant contended that the primary judge made an “error of law” by taking into account, impermissibly, a extraneous fact not within the factors set out in s 4AA(2) of the Family Law Act 1975 (Cth) (“the Act”). However, the appellant could not identify a statement by the primary judge in her reasons for judgment that demonstrate she took the extraneous matters or any of them (referred to in the earlier discussion), into account;
(e)When invited to consider whether, in these circumstances, Ground 2 was abandoned, counsel for the appellant argued that the issue leaks into the ground that raises the insufficiency of reasons, and was therefore maintained; and
(f)Even if, as the appellant submitted, the extraneous issues may have been mentioned tangentially during the course of an eight-day trial, where no mention of those issues are set out in the reasons for judgment, the appellant cannot demonstrate it was improperly taken into account.
Ground 2 has no merit.
GROUND 3
Ground 3 was, during argument, abandoned.
GROUND 4
This ground is articulated as follows:
4.In concluding that a de facto relationship commenced in March 2017 and concluded in December 2020, the learned primary judge:
4.1. Made an order against the weight of the evidence; or
4.2. Gave inadequate reasons for such an order.
That conclusion was expressed in the s 90RD declaration made by the primary judge “that a de facto relationship existed between the parties form March 2017 to December 2020”.
The first limb of this ground as pleaded can be immediately rejected because, as already explained, this was an evaluative factual decision and so it is not liable to be vitiated by a complaint of discretionary error. As the Full Court has explained, complaints about the weight attributed to the evidence by the primary judge are irrelevant unless connected to an assertion that the overall result was manifestly unreasonable (Hedlund & Hedlund (2021) FLC 94-065 at [12] and [36]–[37]). Such complaints, rare though they should be, are confined to discretionary judgments, which this was not.
It should be noted that, although the respondent had pursued by her Amended Initiating Application a declaration that the de facto relationship had persisted from 11 March 2017 until 18 December 2020, in her final submissions she eschewed the need for a declaration as to a particular start date to the relationship, pursuing merely a declaration as to a de facto relationship and its end date of 18 December 2020. At the appeal the appellant accepted that the primary judge was not obliged to determine a start date for the de facto relationship. It was unnecessary for the primary judge to determine the length of the parties’ de facto relationship because the birth of their child made the duration of their relationship irrelevant to the existence of jurisdiction to alter their property interests or make maintenance orders under Pt VIIIAB of the Act (s 90SB(b)).
In oral submissions the appellant characterised ground 4.1 as a factual error, said to be at [52] of the judgment, where the primary judge recited the evidence of the respondent as to the parties spending almost every night together from 11 until 30 March 2017, during which time they agreed to be committed romantic partners. The error asserted was that this recital of the evidence was inaccurate, as although the parties agreed their sexual relationship had commenced in early March 2017, the respondent had conceded in her oral evidence that, rather than being continuously together for the rest of March, the appellant had been in Queensland from 17 March 2017, and she had not joined him there until 1 April 2017.
This factual matter was submitted to be of particular importance given the declaration that the de facto relationship commenced in March 2017.
Ground 4.2 was directed to the primary judge’s reasons for determining that the de facto relationship was in place from March 2017 until 18 December 2020. It covered some of the same ground as 4.1.
The appellant complained that there is no relevant or adequate factual finding regarding the start of the de facto relationship in March 2017 to underpin the declaration. The appellant contended that the absence of such a finding points to the primary judge neither turning her mind to the issue of the commencement in March, nor providing reasons for such a conclusion. He complained that where the evidence was of the parties spending a few nights together in March the reasons were silent as to why March was chosen as the start date.
The appellant further argued a lack of reasons in respect of the primary judge’s determination that the parties had shared a common residence.
These asserted inadequacies were submitted to then permeate the entirety of the determination of de facto relationship, on the basis that a purported inadequacy as to the start of the relationship also meant that it was “equally not possible to [as]certain why the relationship as a de facto relationship subsisted until December 2020”.
In order to assess the claims of error of fact and inadequacy of reasons it is convenient to examine the reasons as a whole.
The reasons for judgment commenced with a chronological recital of the evidence, an identification of principles, and an analysis of the credibility of the parties and their witnesses. No criticism was made of the primary judge’s articulation of the principles, nor challenge made to the primary judge’s assessment of credibility.
Next followed a series of findings and reasons. These were structured to reflect the circumstances identified in the definition of de facto relationship contained at s 4AA(2) of the Act. The final component of the reasons was a conclusion based upon the conglomeration of the preceding reasons.
As identified above, one aspect of the recital of evidence was submitted by the appellant to contain error, that being the recital of the respondent's evidence as to the nights spent together immediately following the commencement of the parties’ sexual relationship. It may be accepted that the recital did not reflect the concession made by the respondent that her contention the parties were together almost every night between 11 to 30 March 2017 was wrong, and they had been apart in different States between 17 March and 1 April 2017.
However, in accordance with De Winter v De Winter (1979) FLC 90-605, it is necessary to consider whether the error identified was one which was material, affecting the conclusion reached by the primary judge. This question falls to be determined in the context of the balance of the findings and reasons given.
Those findings and reasons continued as follows.
In relation to the duration of the relationship (s 4AA(2)(a)), it was found that the parties met in 2014, became reacquainted in early 2017 and then engaged in ongoing sexual relations until late 2020. This included the finding that they were in a relationship of some sort from early 2017 until late 2020. This finding was not the subject of criticism on appeal.
Secondly, in considering, pursuant to s 4AA(2)(b) the nature and extent of the parties’ common residence, it was concluded that the parties did not share a common residence in the traditional sense. Uncontroversially, from February 2017 until December 2020, they spent at least 275 nights together comprising 19.62 per cent of nights, with significant portions in hotels and on holidays. Often the parties would stay together in J Hotel when the appellant was in Melbourne, despite the appellant funding a residence elsewhere for the respondent in Melbourne. These conclusions were not the subject of challenge on appeal.
The primary judge concluded that, whilst not the sharing of a residence in the traditional sense, their use of the J Hotel formed a “quasi-common residence”. The primary judge then reasoned that the concept of residence should be considered in the light of the parties’ “preferences to live a luxurious lifestyle in which travel, and holidays were at the fore” (at [152]). The primary judge concluded that this constituted “shared life as a couple with their daughter, although in an unusual and unorthodox manner” (at [152]).
The pathway in which this intermediate conclusion was reached was adequately explained by the reasons given.
Pursuant to s 4AA(2)(c), the primary judge considered and concluded that a sexual relationship persisted between the parties. No criticism was made of this intermediate conclusion.
The primary judge, pursuant to s 4AA(2)(d), next examined the financial arrangements between the parties. The primary judge set out the various arrangements whereby the appellant supported the respondent financially, having expressed his wish that she not work so she could spend the majority of her time with him when he was not working. He provided accommodation, clothing, jewellery, dining out, a motor vehicle, laptop, payment of bills and payment of legal fees for family law proceedings involving the respondent’s ex-partner.
Although there was no intermingling of their finances, the primary judge found that the respondent was financially dependent upon the appellant during the relationship, the respondent losing her home in late 2020 when it was no longer funded by the appellant following the end of the relationship.
These findings were not the subject of challenge or criticism.
On the issue of jointly owned, used or acquired property (s 4AA(2)(e)), the primary judge found there was no jointly owned property. No challenge was made to this intermediate conclusion.
The primary judge observed that the appellant had viewed and discussed the purchase of a potential home with the respondent between June 2018 and December 2020. The primary judge found that the appellant was misrepresenting his intentions to the respondent in this respect (an approach described elsewhere by the appellant as “future faking” – being a misrepresentation of his future intentions to the respondent).
Although the appellant, in his written outline, did not challenge the primary judge’s conclusions and characterisation of these interactions, he criticised this matter being considered by the primary judge as irrelevant. This appeared to be based upon the circumstances set out at s 4AA(2)(e) not including the mere discussion of acquisition of property. Despite the matters set out at s 4AA(2) being expressed in an inclusive rather than an exclusive manner, the appellant advanced no further argument to support the proposition that such matters cannot be taken into account. It should not be accepted that discussions that assume an ongoing relationship, such as the discussion of the acquisition of a home, are irrelevant to the primary judge’s task of characterising the parties’ relationship.
The primary judge then considered the degree of mutual commitment to a shared life (s 4AA(2)(f)).
The primary judge concluded that the appellant had persuaded the respondent that he intended to marry her. He had also represented such to the respondent’s father. He asserted to the primary judge that he was engaging in “future faking” to placate the respondent in a context of the respondent purportedly threatening the appellant with recordings that she had made.
The steps taken to persuade the respondent of his intentions were identified as, on 3 July 2020, sending a picture of a hotel room (the respondent having cancelled her trip at the last minute due to a break in at her home), the bed covered in rose petals and a caption “I told you I was going to propose to u”. The appellant had told the respondent that the trip was to “look at some stones”. Evidently the implication was that an engagement ring was to be obtained, although the appellant expressed some uncertainty as to whether the stones were for an engagement ring.
A bundle of messages between the parties was also tendered in which they referred to each other as “wifey” and “future husband”.
In October 2020 the appellant represented to the respondent that he loved her with all of his heart.
In November 2020 the appellant sent the respondent a text that he had amended his will to include the respondent as his future wife.
The primary judge concluded that the appellant’s actions and behaviour led the respondent to believe that he intended to marry her. Despite the appellant’s claim that he was merely “future faking” the primary judge concluded that the parties shared a mutual commitment to a shared life.
No criticism or challenge was made to this intermediate conclusion.
The primary judge found that the parties attended social events as a couple, “including dinners, birthdays, charity events and outings with friends” as well as intimate family events such as Christmas 2017 and 2018 with the appellant’s mother (a person noted by the primary judge to be of particular importance to the appellant).
Further the primary judge observed that the appellant had paid for the respondent's family to visit Australia from Country Q. He had also paid for other family trips with the respondent, the child and his children from a previous relationship.
The evidence indicated a volatility to the relationship. The primary judge observed that volatility does not negate the existence of a de facto relationship.
No challenge was made as to the primary judge’s intermediate findings or reasoning in respect of this aspect.
The primary judge noted an email sent by the appellant to the respondent dated 5 March 2018 where he expressed they would be co-parents, but their “friendship” would not be moving to the next level. The primary judge found this was accompanied by statements made by the appellant prior to the email that the email did not mean anything, but was the product of his lawyers making him do it. That is, whatever was contained in the email was negated by other representations made by the appellant to the respondent. The primary judge found that the respondent trusted the appellant in those oral representations.
No criticism was made of this intermediate finding.
The primary judge then set out recorded exchanges between the parties on 18 January 2020 about whether the appellant was having a sexual relationship with another person, which he then denied. He then asserted that his dealings with that person were purely of a business nature. In contrast, at trial the appellant asserted that he and the other person had been in a relationship for about 12 months from late 2018.
The recorded exchanges included representations by the appellant that he was not having a sexual relationship with anyone else, and that he was seeking to protect his and his family’s interests, and the respondent was his “family”. The primary judge found these comments epitomised the parties’ relationship at that time. Despite other exchanges that demonstrated game playing and a volatile relationship between the parties, the primary judge concluded that the comments made by the appellant supported a finding that the parties exhibited a mutual commitment to a shared life.
No criticism was made of the primary judge’s findings in this respect.
The next aspect considered by the primary judge was in relation to messages that passed between the parties shortly prior to, and then following, the birth of the child. Those messages were each suggestive of a breach in the relationship. However, the primary judge considered that, in the context of what else was then going on between the parties, the messages sat within the context of a volatile relationship and were not determinative of the nature of the relationship at that time. The comments fell within a further context, identified by the primary judge, of the appellant assisting the respondent into new rental accommodation funded through the appellant or his company, and was followed by a holiday spent together overseas, and Christmas spent with the appellant’s mother.
That conclusion was not challenged on appeal.
Similarly, notes of conversations between the respondent and nursing staff shortly after the birth of the child were considered by the primary judge as not being determinative of the nature of the relationship.
Again, such a finding was not impugned on appeal.
The primary judge then moved to consideration, in accordance with s 4AA(2)(g), of whether the relationship was registered. Uncontroversially it was determined that it was not.
Section 4AA(2)(h) relates to the care and support of children. There is one child of the relationship. The primary care of the child fell to the respondent, the appellant causing financial support to be given to the child.
The primary judge observed that discussions also took place between the parties regarding having another child (also characterised by the appellant as “future faking”).
No challenge was made to these intermediate factual conclusions.
The final matters considered, pursuant to s 4AA(2)(i), were the reputation and public aspects of the relationship. The primary judge observed that the respondent openly led a lifestyle where he dated numerous women on a casual basis, including during the parties’ relationship.
However, the parties also attended numerous holidays, various social events, including with the appellant’s extended family and friends, presenting both publicly and privately as couple. The primary judge considered that the public aspects of the relationship were not matters of weight, due to the appellant’s approach of attempting to minimise public aspects of the relationship to make it seem that the parties were not in a de facto relationship.
Neither the primary judge’s recital of these matters, nor her treatment of them was the subject of criticism by the appellant.
Immediately following the examination of each of these issues, the primary judge set out as follows:
208.I find that the parties formally had “a relationship as a couple living together on a genuine domestic basis”. That evaluative factual finding emerges from the conglomeration of the considerations prescribed by s 4AA(2) of the Act which are referred to and considered in these reasons.
209.Whilst it is impossible to say with precision the duration of the de facto relationship, I accept the relationship spanned from March 2017 to December 2020.
It is against these findings and reasons in total that the appellant’s Ground 4 falls to be considered.
The appellant submits that the primary judge made a factual error when finding at [52] that “[b]etween 11 March 2017 and 30 March 2017, the [respondent] purports the parties spent almost every night together and agreed to be committed romantic partners”.
Whilst this could be construed as a mere recitation of the evidence given by the respondent, it is apparent the primary judge accepted that this was evidence given by the respondent.
We are persuaded that the finding of fact by the primary judge at [52] that the evidence of the respondent was that between 11 March 2017 and 30 March 2017 the parties spent almost every night together and agreed to be committed romantic partners, is not open on the evidence.
It constitutes an error of fact to so find. In the context of the other evidence in relation to March 2017, it was a matter that was material to the determination that the de facto relationship commenced that month.
Turning to the adequacy of the reasons, the obligation to provide reasons is well established and in Bennett and Bennett (1991) FLC 92-191 at 78,266, the Full Court adopted the test articulated by Gray J in Sun Alliance Insurance Ltd v Massoud [1989] VR 8 at 18 and the principle that whether the reasons are adequate depends upon the circumstances of the case.
The reasons of the primary judge:
(a)Identified the correct legal principles at [100]–[113];
(b)Summarised the critical factual and evidential disputes in the context of outlining the chronological history at [47]–[96]; and
(c)Identified the main factual findings within the matrix of factors prescribed by s 4AA of the Act at [142]–[207].
The reasons identified different aspects of the relationship between the parties and, in accordance with the primary judge’s unimpeached recital of the applicable law, drew those factors together into a composite picture. The factors that accumulated as the relationship progressed were described by the primary judge to conglomerate. Where a composite evaluative picture is required to determine such an issue, the primary judge’s reasons explain how the overall conclusion was reached.
Under circumstances where the end of the relationship was uncontroversial, once the aggregation of factors had led to the conclusion that there was a de facto relationship, little reasoning was necessary to determine the end date of the relationship.
However, a more explicit reasoning process was necessary to establish a particular date early in the relationship as forming an adequate conglomeration of factors. That was not done, and so the basis on which March 2017 was perceived by the primary judge to be the start of the de facto relationship was not adequately exposed.
It may be accepted that the reasons, which rely on a conglomeration of factors, do not adequately explain the primary judge’s conclusion that the de facto relationship commenced in March 2017.
DISPOSITION
Section 36 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) grants a broad range of powers to this court on appeal. Those include the power, at s 36(1)(b) to “give such judgment or make such order as, in all the circumstances, it thinks fit, or refuse to make such an order”.
By the end of the appeal hearing the parties adopted a common position that if the appellant succeeded on a ground other than the first ground, the Full Court should re-decide the issue, substituting the correct judgment.
As we have found Grounds 4.1 and 4.2 (as they were argued rather than pleaded) established and the appeal is allowed, it is necessary to decide whether this court is in a position to substitute its judgment as sought by the parties.
In this case the court is being asked to draw an inference or conclusion as to whether the relationship between the appellant and the respondent should be characterized as a de facto relationship, as described by s 4AA of the Act. The circumstances facing this court in determining the issue well meets the description given in Warren v Coombes (1979) 142 CLR 531 by Gibbs ACJ, Jacobs and Murphy JJ at 551:
Shortly expressed, the established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it. These principles, we venture to think, are not only sound in law, but beneficial in their operation.
Here there are a suite of factual issues that were either not disputed at trial or were resolved by the primary judge in a manner that has not been impeached on appeal. On the re-determination, there are no other matters identified to this court to qualify or add to the matters determined by the primary judge. In those circumstances the court is able to consider the matter in the manner proposed by the court to the appellant during the appeal, being “on the basis of findings, not impugned”.
As to the terms of that resolution, the appellant’s position is that the court should find the relationship should not be characterized as a de facto relationship at any point. The effect of such a declaration would be that there is no jurisdiction to grant substantive relief to the respondent for maintenance pursuant to s 90SE or property adjustment pursuant to s 90SM of the Act.
The respondent seeks a declaration that a de facto relationship persisted between the parties, ending in December 2020. The respondent does not seek the identification of a start date for the de facto aspect of the parties’ relationship. The effect of such a declaration would be to enliven jurisdiction pursuant to both s 90SE and s 90SM of the Act.
The law, as correctly identified by the primary judge, requires an evaluation, taking into account the criteria set out at s 4AA of the Act. The essential test of whether the couple lived together on a genuine domestic basis is determined by a composite picture. The factors, in their interactions with each other, must be considered together, with no particular factor necessarily having precedence, and with factors potentially pointing in different directions.
The factual matters identified by the primary judge aggregated as the relationship progressed.
What started as a friendship and then sexual relationship from early 2017 progressed. The parties had their own residences, but also lived together, spending holidays together, and about one fifth of all nights together across the years of their relationship. They occupied luxury accommodation together at J Hotel, aptly described by the primary judge as a “quasi common residence” (at [149]) that accorded with their joint enjoyment of a “luxurious lifestyle in which travel and holidays were at the fore” (at [152]).
From the birth of their child in 2018 the three together shared these arrangements.
Although the appellant played down their relationship in the public sphere, and entertained other women, in private the parties together spent time with the appellant’s mother and children from his previous relationship. He financially supported the respondent, providing accommodation and finances for her and the child such that their time together would be unhindered by work arrangements for the respondent. He structured their arrangements such that the respondent and the child, as a result of his ongoing support of them, would always be available to him. The parties shared their relationship with the child together, and shared different responsibilities for the child, the appellant providing at least practically and financially for the child.
To this picture may be added the parties’ joint entertaining of longer-term aspects of their relationship. They considered the purchase of a family home. They referred to each other as “wifey” and “future husband”. The appellant maintained to the respondent that he would propose marriage to her. He told her that he had altered his will in contemplation of marriage to her. He expressed that he loved her with all of his heart.
It is true that the parties experienced significant volatility on their marriage. As observed by the primary judge, that volatility (and it might be considered, the persistence of the relationship in the face of that volatility) does not deny that the relationship was of a couple living together on a genuine domestic basis.
Although the relationship may not be perceived to be orthodox, as identified by the primary judge in her recitation of Lynam v Director-General of Social Services (1984) FLC 91-577 at 79,663:
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. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons…meets the statutory test
The variability in characteristics that may comprise a de facto relationship was recognized by the High Court in Fairburn v Radecki (2022) 275 CLR 400 at [39] where it described that “s 4AA(4) is a statutory recognition that what may constitute a genuine de facto relationship is not to be determined in the same way in every case by reference to rigid criteria that must always be satisfied”.
Although this relationship did not feature a typical common residence, the accumulation of the above factors, incorporating their sexual relationship; their sharing of J Hotel accommodation and holidays; their financial and practical arrangements orienting their lives about the appellant such that the respondent and the child would always be available to the appellant; their sharing of responsibilities for and relationship with the child; and their long term plans evidencing their commitment to each other mean that, at some indistinct point in time prior to the end of their relationship in December 2020 the relationship attracted the characterisation of a couple living together on a genuine domestic basis.
These matters mean that, pursuant to s 90RD of the Act, there be a declaration that a de facto relationship existed between the parties ending in December 2020.
COSTS
The appellant sought no order for costs if successful but would seek only a costs certificate if the appeal succeeded for an error of law.
As the appeal has succeeded on an error of law ground, the respondent in those circumstances joined the appellant in seeking a costs certificate.
Orders will be made accordingly.
I certify that the preceding one hundred and thirty-eight (138) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, Gill & Baumann. Associate:
Dated: 29 October 2024
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