Professional Documents
Culture Documents
CORAM : PULLIN JA
BUSS JA
MURPHY JA
BETWEEN : H
Appellant
AND
P
Respondent
ON APPEAL FROM:
Catchwords:
Family law - Application for de facto property settlement - Whether parties
living in a 'marriage-like' relationship - Whether relationship ended prior to the
commencement of pt 5A Family Court Act 1997 (WA) - Relevant principles
Legislation:
Family Court Act 1997 (WA), s 205U(2), s 205Z, s 205ZG
Interpretation Act 1984 (WA), s 13A(2)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr M F Rynne
Respondent : Ms G M Anderson
Solicitors:
Appellant : Leach Legal
Respondent : Robert Parkinson & Associates
MURPHY JA:
Introduction
3 This is an appeal from a decision of Martin J of the Family Court
dismissing the appellant's (form 1) application for a de facto property
settlement pursuant to s 205Z and s 205ZG of the Family Court Act 1997
(WA) (the Act).
4 An appeal lies to this court pursuant to s 211(3), read with s 36(4a),
of the Act.
Background
5 The female appellant is 64 years of age and unemployed. She has
been in two previous marriages, both ending in divorce. She has a son
from each marriage. The male respondent is 67 years of age and is
employed by a resources company based in north-western Australia (the
respondent's town). He was married in 1963 and has two daughters and
one son. His wife died of cancer in 1994.
6 The parties first met during the 1970s, as the respondent's wife and
the appellant played in the same sports team, which the respondent
coached. The appellant left the respondent's town in about 1978, and the
parties did not see each other again until the appellant attended the
respondent's wife's funeral. The parties did not meet again until about
August 1995, when they both attended a barbecue to celebrate a family
member's birthday. The parties then started to spend time together.
7 In December 1995, the appellant was involved in an accident at
work, as a result of which she sustained an injury to her wrist.
21. Each time that [Mr P] and I spent time together, whether
in [the respondent's town] or Perth, [Mr P] asked me to
move to [his town] to live with him. [Mr P] was very keen
that I move in with him but initially I was less certain. I
was reluctant to move for a number of reasons:
11 Over the period from December 1996 until April 2008, the appellant
spent periods of time living with the respondent in the respondent's town,
and the parties also stayed together for less substantial periods of time at
the appellant's Homeswest property in Perth, which she had rented since
1986. In the period 1996 to 2000, and again from 2006, the respondent's
adult son was also living with the respondent in the respondent's town.
the respondent, caring for him both physically and emotionally. The
appellant drove the respondent to all of his radiotherapy appointments.
23 In 2004, the appellant was involved in a District Court trial for the
personal injury claim in relation to the injury to her wrist sustained in the
accident in December 1995. The respondent supported her in the
proceedings, giving evidence on her behalf. The trial judge referred to
him as the appellant's 'partner from time to time'. Judgment was delivered
on 30 June 2004, and it was ordered that the appellant be paid the sum of
$12,450. After further negotiations, a further $5,000 was offered, which
the appellant accepted. The appellant owed $10,000 to her brother for
legal expenses, and paid a further $5,000 to the respondent, who had also
paid some of her legal expenses.
that year to play bowls. The respondent did join her in Perth on several
occasions.
25 In 2006, the respondent's adult son moved back into the respondent's
home. He had lived there from 1996 to 2000, and he did not get on well
with the appellant.
Credibility
31 The learned trial judge's findings as to the credibility of the parties
are set out at [74] - [77] of the reasons. The trial judge found, in effect,
that both parties were not entirely credible witnesses, and that both had
been prepared to make assertions, which they now say were not correct,
for financial advantage. Her Honour's findings as to credibility and its
impact on the conclusions drawn from the evidence as a whole were
summed up in [77], where she said:
When it came to the parties' evidence at trial, both parties were polarised in
their positions and clearly were prepared to exaggerate or underrate any
matter which would support or denigrate their cases. On balance, I regard
the applicant as being more credible as to her version of what actually
occurred, for example in relation to the parties’ engagement. I considered
it did the respondent no credit, the extent to which he was, I consider in
some respects, unfairly, prepared to down play the nature of his
relationship with the respondent. In most respects the evidence is not
actually disputed to a great extent, it being more a question of degree - the
issue is the legal ramifications of the relevant facts. (emphasis added)
The relationship
32 With specific reference to the indicative factors of a de facto
relationship set out in s 13A(2) of the Interpretation Act 1984 (WA), the
learned trial judge made, in effect, the following findings with respect to
the parties' relationship:
(a) the relationship (however it may be characterised) was one which
commenced in 1995 and ended in April 2008. Over that period
the appellant spent almost all of each year up to 2001 in the
respondent's town, but those periods reduced in subsequent years,
with the exception of one particular year, to very roughly half of
each year (reasons [81] and [86] - the proper construction of [86]
of the judge's reasons is the subject of more detailed consideration
later in these reasons);
(b) although the parties shared the same bedroom, whether living in
Perth or the respondent's town, there was never a time when the
parties combined their efforts to establish one residence, and the
parties maintained separate properties throughout the relationship
(reasons [87], [89]);
(c) when the applicant was living with the respondent in the
respondent's town, she pursued her own life and came and went
from the respondent's home as she wished. However, this did not
mean that the parties were any less a 'couple' (reasons [90]);
(d) the parties had a sexual relationship, albeit limited in the last few
years, but there was no suggestion that either had been involved in
any other relationship during the period from 1995 to 2008
(reasons [92] and [137]);
(g) the parties did not purchase any real property together and neither
party made any significant contribution towards the other's
property (reasons [106] and [108]);
(h) the parties discussed an engagement, and at one point agreed to
become engaged, but not necessarily firm marriage plans. It is
unlikely that the parties did not discuss spending some time in
retirement together. The parties could have made a commitment
to spend more time together and combine their resources, but they
did not (reasons [109], [111], [116], [118]);
(j) the appellant was recorded as the respondent's 'de facto wife' in
various documents, including his private health insurance policy,
his employer-paid travel assistance policy, tax return forms and
some health records. The appellant has referred to herself in
public documents as 'single' or 'divorced' where it suits her.
Neither party made a Will providing for the other as a beneficiary
(reasons [122] - [127]);
(k) the parties were regarded as partners and a couple by others and
they presented in this way. The parties were invited to and
attended many family functions, the respondent's work functions,
(l) the relationship that the parties shared provided each of them with
support, companionship and a romantic relationship when they
were in each other's company, but in several significant aspects of
life, the parties pursued separate and independent lives
(reasons [134]).
The legislation
34 The applicant's form 1 application was made pursuant to pt 5A of the
Act, which deals with de facto relationships. The term 'de facto
relationship' is defined in s 13A of the Interpretation Act 1984 (WA)
which provides:
13A. De facto relationship and de facto partner, references to
(5) The de facto partner of a person (the first person) is the person who
lives, or lived, in the de facto relationship with the first person.
(b) there is a child of the de facto relationship who has not yet
attained the age of 18 years and failure to make the order
would result in serious injustice to the partner caring or
responsible for the child; or
(c) the de facto partner who applies for the order made
substantial contributions of a kind mentioned in
section 205ZG(4)(a), (b) or (c) and failure to make the
order would result in serious injustice to the partner.
(3) Subsection (2) does not limit the matters the court may consider.
38 Section 205ZG gives the court the power to make orders that alter
the de facto parties' interests in property.
39 By s 205ZB, a de facto partner has a period of two years after the
relationship has ended within which to make an application to the court
for property settlement orders. However, the court may grant a de facto
partner leave to apply after the two-year period if satisfied that hardship
would be caused if leave were not granted.
Grounds of appeal
41 The appellant relied on six grounds of appeal, as follows:
Ground 1
The learned Trial Judge acted on a wrong principle (error of law) by not
determining if the parties were in a defacto relationship at any time and if
so when that relationship ended; alternatively
Ground 2
The learned Trial Judge erred in law and fact in finding that any defacto
relationship has been terminated or destroyed by the circumstances of the
case and ought to have found that once a defacto relationship existed it
could not be so terminated or destroyed as a matter of law and nor was it
so terminated or destroyed as a matter of fact.
Ground 3
Should the learned Trial Judge have determined as a matter of fact that that
relationship had ended by December 2002 there were insufficient reasons
for that finding and or sufficient findings on the record;
Ground 4
In finding that the parties time spent apart was determinant of the existence
of a defacto relationship failed to take into account a relevant matter
namely the reasons for spending time apart nor made findings in respect
thereof
Ground 5
Ground 6
Legal principles
Appellate considerations
42 An appeal lies to this court pursuant to s 211(3), read with s 36(4a)
of the Act. There has been no debate about whether, by virtue of s 211(3),
the appeal is in the nature of an appeal in the strict sense, or by way of
rehearing: see Coal and Allied Operations Pty Ltd v Australian
Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
[12] - [13], and cf s 211(2)(a) of the Act. In either case, the appellant
must ordinarily demonstrate error on the part of the primary
decision-maker: Coal and Allied Operations Pty Ltd v Australian
Industrial Relations Commission [12] - [14]; Branir Pty Ltd v Owston
Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424
[20] - [22], [25]; New Zealand v Johnston [2011] FCAFC 2; (2011) 274
ALR 509 [26]. The appellant must demonstrate that the order below is
'... the court is not obliged to proceed to make new findings of fact
on all relevant issues and discharge the judgment appealed from if
those findings differ from those of the trial judge and do not
support the judgment. The court must be satisfied that the judgment
of the trial judge is erroneous and it may be so satisfied if it reaches
the conclusion that the trial judge failed to draw inferences that
should have been drawn from the facts established by the evidence.
The court is unlikely to be satisfied if all that is shown is that the
trial judge made a choice between competing inferences, being a
choice the court may not have been inclined to make but not a
choice the trial judge should not have made. Where the majority
judgment in Warren v Coombes [(1979) 142 CLR 531] (at
552-553) states that an appellate court must not shrink from giving
effect to its own conclusion, it is speaking of a conclusion that the
decision of the trial judge is wrong and that it should be corrected.
(See also Edwards v Noble (1971) 125 CLR 296, per Barwick CJ
(at 304), per Menzies J (at 308-309) and per Walsh J (at 318-319).)'
...
... in that process of considering the facts for itself and giving weight to the
views of, and advantages held by, the trial judge, if a choice arises between
conclusions equally open and finely balanced and where there is, or can
be, no preponderance of view, the conclusion of error is not necessarily
arrived at merely because of a preference of view of the appeal court for
some fact or facts contrary to the view reached by the trial judge.
The degree of tolerance for any such divergence in any particular case will
often be a product of the perceived advantage enjoyed by the trial judge.
Sometimes, where matters of impression and judgment are concerned,
giving 'full weight' or 'particular weight' to the views of the trial judge
might be seen to shade into a degree of tolerance of divergence of views ...
However, as Hill J said in Commissioner of Taxation (Cth) v Chubb
Australia Ltd (1995) 56 FCR 557, 573, 'giving full weight' to the view
appealed from should not be taken too far. The appeal court must come to
the view that the trial judge was wrong in order to interfere. Even if the
question is one of impression or judgment, a sufficiently clear difference
of opinion may necessitate that conclusion.
Adequacy of reasons
49 There are a number of recent decisions of this court which discuss
the principles to be applied when considering the adequacy of a trial
judge's reasons: Mount Lawley Pty Ltd v Western Australian Planning
Commission [2004] WASCA 149; (2004) 29 WAR 273; Marshall v
Lockyer [2006] WASCA 58; SNF (Australia) Pty Ltd v Jones [2008]
WASCA 121. For present purposes, I would note the following matters.
Secondly, a judge should set out any material findings of fact and any
conclusions or ultimate findings of fact reached. … Where one set of
evidence is accepted over a conflicting set of significant evidence, the trial
judge should set out his findings as to how he comes to accept the one over
the other. But that is not to say that a judge must make explicit findings on
each disputed piece of evidence, especially if the inference as to what is
found is appropriately clear … Further, it may not be necessary to make
findings on every argument or destroy every submission, particularly
where the arguments advanced are numerous and of varying significance
…
Thirdly, a judge should provide reasons for making the relevant findings of
fact (and conclusions) and reasons in applying the law to the facts found.
Those reasons or the process of reasoning should be understandable and
preferably logical as well.
'Marriage-like' relationship
53 Unlike a legal marriage, there is no formality surrounding the
creation and cessation of a de facto relationship. It can thus often be
difficult to determine whether or not such a relationship exists. The term
'marriage-like relationship' is not defined in the legislation, leaving the
question to the judge who, whilst reflecting on the nature of marriage
generally, is required by the legislation to have regard to the factors in
s 13A(2) of the Interpretation Act 1984: see T and C [2010] FCWA 91
[347].
...
There is no reason to doubt that the same is generally true of Australia and
New Zealand. It may be added that, in Australia, what often prompts
cohabiting couples to marry is a decision to have a child, and to do so
within the context of a marriage. People often refer to this as 'starting a
family'. The cohabiting parties to many relationships, especially first
relationships of the 'short-lived and childless' kind, may be surprised to be
told that they are involved in a relationship in the nature of marriage or
civil union. They may intend no such thing. The same may apply to some
people in longer-term cohabitation who have chosen not to marry. It is the
common intention of the parties as to what their relationship is to be, and
to involve, and as to their respective roles and responsibilities, that
primarily determines the nature of that relationship. The intention need
not be formed in terms of legal status: to some people that is important; to
others it is a matter of indifference ... The intention may be expressed, or it
may be implied. What is relevant is their intention as to matters that are
characteristic of a marriage or a civil union, but that do not depend upon
the formal legal status thus acquired. To describe a relationship as being
in the nature of marriage implies a view about the nature of marriage. The
same applies to a civil union. It is unnecessary, for present purposes, to
attempt a comprehensive account of the features of a relationship that
might justify such a description. Plainly, 'living together' is not enough.
See also Corich v The Public Trustee [2006] WASC 16 and T and C
[353].
56 Just as it is difficult to discern when a relationship between two
people can properly be said to be 'marriage-like', it can be equally difficult
to determine when such a relationship comes to an end. In this respect,
there is an important distinction to be drawn between a de facto
relationship and a legal marriage. Unlike a legal marriage, which
continues despite the absence of any 'marriage-like' characteristics in the
relationship, until it is formally dissolved by legal process, a de facto
relationship is inherently terminable at any time, and continues to exist
only insofar as the indicia which give the relationship its 'marriage-like'
character continue to exist. In Hibberson v George (1989) 12 Fam LR
725, 740, Mahoney JA spoke of the distinction between a legal marriage
and a de facto relationship, where he said:
There is, of course, more to the relevant relationship than living in the
same house. But there is, I think, a significant distinction between the
relationship of marriage and the instant relationship. The relationship of
marriage, being based in law, continues notwithstanding that all of the
things for which it was created have ceased. Parties will live in the
relationship of marriage notwithstanding that they are separated, without
children, and without the exchange of the incidents which the relationship
normally involves. The essence of the present relationship lies, not in law,
but in a de facto situation. I do not mean by this that cohabitation is
essential to its continuance: holidays and the like show this. But where
one party determines not to 'live together' with the other and in that sense
keeps apart, the relationship ceases, even though it be merely, as it was
suggested in the present case, to enable the one party or the other to decide
whether it should continue.
Ground 1
59 This ground concerns the proper operation of s 205U(2) of the Act.
The appellant contends that, where an application is made under pt 5A of
the Act, and it is alleged that the relevant de facto relationship
commenced prior to 1 December 2002, on a proper construction of
s 205U(2), the primary judge is required to determine whether or not there
was, in fact, a de facto relationship prior to 1 December 2002, and, if so,
when it started and when it ended. It is said that the learned judge erred in
failing to adopt such an approach, and in focussing upon whether or not
the parties had lived in a de facto relationship on and since 1 December
2002. At the hearing, counsel for the appellant was not able to refer the
court to any authority supporting the proposition contended for.
Ground 2
64 There are, in effect, two limbs to ground 2. It is alleged that the
judge erred in law and fact in finding that any de facto relationship had
been 'terminated or destroyed' by the circumstances of the case as:
(1) once a de facto relationship exists, it cannot be so 'terminated or
destroyed' as a matter of law; and
69 In any event, the ground assumes that the judge found that there had
been a de facto relationship which subsequently terminated. That is
incorrect. Her Honour found that it was 'possible that the parties could
have been' in a de facto relationship in the 1990s ([139]), not that they
were in fact in such a relationship at that time. The crucial finding is at
[146] [sic [144]].
70 The appellant has not identified error, and I would dismiss ground 2.
Grounds 3 and 4
71 At the hearing, counsel for the appellant said that grounds 3 and 4
can essentially be read together as one ground, which, according to
counsel, is the appellant's 'crucial ground'. The essence of the ground, as
it evolved at the hearing, was, in effect, that the judge erred in treating the
time that the parties spent apart as the determinative factor in coming to
the conclusion that any de facto relationship between the parties had
ended prior to 1 December 2002, and failed to take into account other
relevant factors. The appellant says that as spending time apart is not
necessarily fatal to the continuing existence of a de facto relationship, the
judge should have considered the reasons why the parties spent less time
together over time. Further, the appellant says that the judge should have
had regard to the following findings, which are set out in the appellant's
written submissions (par 24):
a) The Appellant had a Perth residence, the Respondent a
[north-western Australian] residence.
h) That when the parties were living in the same property the
respondent supported the applicant to a considerable
degree and he paid his own way while staying with her in
Perth (reasons para 140)
74 However, the appellant says that the judge treated the time that the
parties spent apart as 'seemingly determinative'. That submission cannot
be sustained. Her Honour commenced her concluding remarks ([136])
with the following three statements:
The applicant has the burden of proof that the parties were in a de facto
relationship.
Counsel referred to various legal authorities, but each case really turns on
its own facts.
76 The appellant cannot succeed unless she satisfies this court that the
trial judge was in error. The matters raised by the appellant in grounds 3
and 4 do not point to any discernible error made by the judge.
Grounds 5 and 6
78 Grounds 5 and 6, in a similar vein to grounds 3 and 4, contend that
the judge erred in attributing significance to the fact of the appellant's
application to Centrelink, and the respondent's unwillingness to support
the appellant, without taking into account the history of the parties'
financial interrelationship. The appellant says that her Honour failed to
give adequate reasons for why she considered the appellant's application
for Centrelink benefits, and the respondent's unwillingness to support the
appellant, to be of significance.
81 Like the gradual lessening of time the parties spent together, the
parties' financial relationship was one of a number of factors that the
judge properly took into account. 'The degree of financial dependence or
interdependence, and any arrangements for financial support, between
[the parties]' is one of the express indicia included in s 13A(2) of the
Interpretation Act 1984. The significance of her Honour's observation in
[140] concerning the Centrelink payments is, in my view, self-evident,
and reflects the kind of reasoning one would expect in an application such
as this. I do not consider the reasons to be inadequate.
(7) The learned trial Judge erred in finding that the Appellant spent
almost all her time in [the respondent's town] until 2001 but then
the periods reduced to, with the exception of 2003, very roughly
half the time in that the finding was against the weight of other
findings of Her Honour and the Evidence. The learned Trial Judge
should have found that the Appellant had spent almost all her time
in common residence with the Respondent until the end of 2000
and then 36 weeks of her time in common residence for 2001 and
2002 and then roughly half her time in common residence from
2003 until separation save for 2005.
Alternatively
Ground 8
(8) The learned trial judge failed to provide sufficient reasons for her
finding that the Appellant spent almost all her time in [the
respondent's town] until 2001 but then the periods reduced to, with
the exception of 2003, very roughly half the time.
• 1998 – 45 weeks;
• 1999 – 50 weeks;
• 2000 – 45 weeks;
• 2001 – 36 weeks;
• 2002 – 36 weeks;
• 2003 – 29 weeks;
• 2004 – 21 weeks;
• 2005 – 13 weeks
• 2006 – 26 weeks
• 2007 – 28 weeks
previously drawn specific attention to 2005, when she found that the
parties spent 'comparatively little physical time together' in 2005 (reasons
[36]). This suggests that 2005 was the year the judge had intended to
single out as the exception. Thirdly, once a typographical error is
acknowledged, the judge's finding accords with the appellant's evidence.
Her evidence was that until 2001 (which is to be interpreted as meaning
up to the end of 2000), the appellant spent almost all her time in the
respondent's town, but then the periods 'reduced', with the exception of
2005, to very roughly half the time. It is apparent that the judge
deliberately included the words 'reduced … to' having regard to
her Honour's re-statement of the finding at [139] where she said, 'It is
apparent that the parties spent much more time together in the early years
of the relationship but this reduced over time' (emphasis added). The
finding in [86] may have been clearer had the word 'down' been included
so that the final phrase read 'down to very roughly half the time'.
Nevertheless, that is the sense of it.
Conclusion
93 The appeal should be dismissed.