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Crick & Bennett [ 2018] FamCAFC 68  (13 April 2018)

Last Updated: 11 May 2018

FAMILY COURT OF AUSTRALIA

CRICK & BENNETT

[2018] FamCAFC 68

REPRESENTATION

ORDERS

(1) The appeal is dismissed.
(2) The appellant is to pay the respondent’s costs of the appeal, excluding the costs of the application to adduce further evidence, as agreed or in default of agreement as assessed.

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 Crick & Bennett 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: EA 25 of 2017
File Number: PAC 2610 of 2016

Appellant

And

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. Mr Crick (“the appellant”) appeals from a decision of Judge Tonkin given on 28 February 2017 in proceedings between him and Ms Bennett (“the respondent”). On that day her Honour made a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) (“the Act”) that a de facto relationship existed between the parties from late 2001 until 9 June 2014.
2. Her Honour dealt with the issue as to whether and for what period a de facto relationship existed between the parties as a threshold issue. As such, the respondent’s application for an adjustment of the parties’ interests in their property pursuant to s 90SM of the Act has not yet been dealt with.
3. Before the primary judge, the respondent contended that the de facto relationship commenced in mid-2001 when the appellant moved into her Suburb L property and continued until 9 June 2014 when he left that property.
4. For his part the appellant accepted that the parties were in a de facto relationship from 2002 until February 2004. He also accepted that he continued to reside in the respondent’s Suburb L property from February 2004 until 9 June 2014 but contended that during that period the parties lived separately and apart under one roof and that no de facto relationship existed.
5. Her Honour therefore had to consider whether the de facto relationship ended in February 2004 or on 9 June 2014 in accordance with the provisions of s 90RD.
6. The definition of a de facto relationship is found in s 4AA of the Act and provides:

4AA De facto relationships

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.

When 2 persons are related by family

(6) For the purposes of subsection (1), 2 persons are related by family if:

(a) one is the child (including an adopted child) of the other; or

(b) one is another descendant of the other (even if the relationship between them is traced through an adoptive parent); or

(c) they have a parent in common (who may be an adoptive parent of either or both of them).

For this purpose, disregard whether an adoption is declared void or has ceased to have effect.

7. At the outset it must be said that her Honour’s task in applying this definition to the facts before her was made more difficult by two factors.
8. The first is the cursory and conclusive nature of the evidence which was adduced by both parties. For example, the parties agreed that at some point in 2004, after their child was born in late 2003, the appellant began transferring $300 per week into the respondent’s bank account. In 2008 this increased to $500 per week. The respondent described this as a contribution “towards living expenses” whereas the appellant described it as “board”. Neither adduced any relevant material that further illuminated the nature of the payments.
9. Another example is that on many occasions the respondent gave evidence that the parties went out to particular events where they “presented as a couple”. The appellant simply denied that they did so. Again, the evidence does not add to those bald descriptions and denials to give any indication of what actually occurred at these events. It is difficult to understand what is meant by the phrase “presented as a couple”. If it meant that the parties arrived at a function or event together and left together, then the phrase adds little to the evidence that was already before the Court. If it is intended to suggest something else, then it is not clear to us what that might be.
10. The appellant accepted that the parties attended many family, social and school events with the child but denied that when they were at these events the parties presented as a couple. He did not set out any facts or circumstances that could illuminate his assertion and, as with the respondent’s evidence along similar lines, it is impossible to attribute any probative weight to that evidence.
11. This leads to the next difficulty. The primary judge did, in fact, find “that the parties demonstrated they were a couple when they attended together” or that “the parties frequently presented as a couple” (at [46] and [47]). That was not entirely surprising because, as we have seen, that was the way the parties had framed their evidence. Further, the parties’ submissions were not always directed to the definition of a de facto relationship contained within s 4AA of the Act but, rather, phrased in terms of them being “a couple” or having a “commitment to a shared life”. For example, at trial the appellant submitted:

...It comes with not a skerrick of evidence from the [respondent] establishing or even deposing to the notion of a commitment of a shared life. Not one single line. There is not one single line of evidence of a discussion between them about their future. There is not a line of evidence about holidays. There’s not a line of evidence about planning for the future as a couple...

(Transcript 1 February 2017, p.96 lines 22–27)

12. It was also submitted:

Your Honour, with respect to the mutual commitment of a shared life, there is not one line of evidence from the [respondent] to any degree that they had a mutual commitment to a shared life ... There is no evidence of a merging of their lives and the [respondent] is wholly silent.

(Transcript 1 February 2017, p.101 lines 14–20)

13. The concept of the merger of two individual lives into life as a couple was first raised in Jonah & White (2012) FLC 93-522 (“Jonah & White”) at [60] and [66]. The primary judge quoted both of those paragraphs at [21]–[23] of her reasons. Her Honour then noted that an appeal from that decision was dismissed. If the primary judge regarded the dismissal of the appeal as an endorsement of those comments by the Full Court, then, respectfully, her Honour was mistaken. As was pointed out by the Full Court in Sinclair & Whittaker [2013] FamCAFC 129; (2013) FLC 93-551 (“Sinclair”), the Full Court in Jonah & White did not adopt the primary judge’s reasoning. The Court in Sinclair said:
    92. In both written and oral submissions the appellant submitted that the facts did not demonstrate “the manifestation of coupledom” or that there had been “the merger of two lives”. These phrases emerge from the decision of Murphy J in Jonah v White [2011] Fam LR 460 at 471 where his Honour said:

[60] In my opinion, the key to that definition is the manifestation of a relationship where “the parties have so merged their lives that they were, for all practical purposes, ‘living together’ as a couple on a genuine domestic basis”. It is the manifestation of “coupledom”, which involves the merger of two lives as just described, that is the core of a de facto relationship as defined and to which each of the statutory factors (and others that might apply to a particular relationship) are directed.

...

[66] The issue, as it seems to me, is the nature of the union rather than how it manifests itself in quantities of joint time. It is the nature of the union – the merger of two individual lives into a life as a couple – that lies at the heart of the statutory considerations and the non-exhaustive nature of them and, in turn, a finding that there is a “de facto relationship”.

93. It is important to note that his Honour’s comments were made in the context of the facts of the matter that was before him. It is clear from reading the judgment as a whole that his Honour had the statutory definition firmly in mind at all times. When dismissing the appeal from his Honour’s decision the Full Court did not disagree with his Honour’s statements of principle but did not apply anything other than the statutory test (Jonah & White (2012) FLC 93 – 522). At 86,682 their Honours said:

It is immediately apparent that the touchstone for the determination of whether a de facto relationship exists is the finding that the parties to it are a “couple living together on a genuine domestic basis”.

94. Comments made in the course of discussing facts are not to be elevated to the status of the provisions of the statute or substituted for the statutory test. This is because, taken on their own, they either add nothing to the statutory test or, if they do, they are adding an impermissible gloss. Thus it is not appropriate to consider the facts other than in the light of the statutory test.
14. Sinclair itself has been followed by subsequent Full Courts (Cadman & Hallett (2014) Fam CAFC 142; (2014) FLC 93-603 (“Cadman”); Onslow & Onslow [2016] FamCAFC 7; Fleming & Schmidt [2017] FamCAFC 12; Sha & Chan [2017] FamCAFC 161 and Cuan & Kostelac [2017] FamCAFC 188; (2017) FLC 93-801 (“Cuan”)). Accepting that two of these decisions post-date her Honour’s reasons, we do not understand why at least Sinclair was not referred to by the primary judge. Error can arise from referring to first instance judgments which have been overtaken and corrected by subsequent appellate authority.

BACKGROUND

15. The following background, which gives context to the appeal, appears not to be controversial and is taken from the primary judge’s reasons.
16. The parties commenced a relationship in 2000. At the time the respondent owned a property at Suburb L and the appellant owned a property at Suburb D.
17. At some stage in either mid-2001 or early 2002 the appellant moved into the Suburb L property and, at least by that time, a de facto relationship was in existence.
18. The parties briefly separated in September 2003 but the relationship recommenced a few weeks later. As we have said, their child was born in late 2003.
19. In February 2004 the parties started to sleep in separate bedrooms. A sexual relationship existed until February 2004 (according to the appellant) or 2005 (according to the respondent).
20. For the duration of the relationship, the parties did not acquire any joint property, acquired no joint liabilities and had no joint bank accounts. They each retained their respective property and were responsible for the outgoings in relation to it.
21. The primary judge found that when the child was about seven months old, in approximately mid-2004, the appellant began transferring $300 per week into the respondent’s bank account (at [42]). The respondent continued to pay all of the household bills and purchased the groceries. She cleaned, washed and cooked for the respondent, including cooking the majority of the meals for the parties. The respondent was the primary carer for the child and although the appellant worked long hours, he spent time with her when not at work, playing with her, attending birthday parties, and celebrating each birthday and Christmas with her and the respondent (at [45]).
22. In 2008 the weekly payments made by the appellant were increased to $500 per week. The primary judge incorrectly recorded that as occurring in 2007 (at [44]).
23. The primary judge found, without challenge, that throughout the period 2001 to 2014 the appellant ran his transport business from a room at the Abbotsbury property (at [35] and [51]).
24. There is no dispute that he left the Suburb L property on 9 June 2014. At that time he had commenced a relationship with another person (at [54]).

THE APPEAL

25. The Amended Notice of Appeal raises five grounds of appeal.

Ground 1

26. By ground 1 the appellant asserts the following:

That the Trial Judge’s approach to the assessment of the parties’ evidence and credibility constitutes an error of principle in that Her Honour failed to provide any or any adequate reasons to accept the evidence of the Respondent and completely reject the evidence of the Appellant.

27. The appellant submits that the critical finding of the primary judge as to credit at [34], that “[g]enerally I preferred the [respondent]’s evidence to the [appellant]’s evidence”, was an erroneous approach. Reliance was placed on Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186 at [28]–[31] where Ipp JA indicated that a trial judge must give reasons for credit findings and that it is insufficient merely to set out the competing versions of the evidence and then to state that one party’s version is preferred.
28. That proposition is, with respect, unremarkable. However, we are far from convinced that that is the approach her Honour took. Her Honour’s credit findings were as follows:
    33. Much was made by Counsel for the [appellant] regarding the [respondent]’s credibility. She was cross examined on inconsistencies between her affidavit and her oral evidence about matters which occurred 15 years prior. She told the Court her memory was hazy and readily accepted she was confused. She agreed she changed her evidence as to when the relationship commenced after reading the [appellant]’s affidavit acknowledging that her recollection was poor but her memory was assisted by reference to the date the [appellant] asserted he commenced his ... business. I do not accept the [respondent] was being evasive or dishonest. I accept that her memory was hazy as to dates. I find that she did her best to recall events a long time ago. I found the [respondent] to be a credible witness.
    34. I found the [appellant] guarded in his responses to questions from the [respondent]’s Counsel and careful not to volunteer information. I had difficulty accepting the [appellant]’s account that he communicated his intention to the [respondent] to separate in February 2004 (referred to below). Generally I preferred the [respondent]’s evidence to the [appellant]’s evidence.

...

56. If the [appellant] formed an intention to end the relationship in February 2004 I find that he did not act on that intention and did not communicate his intention to the [respondent]. In answer to an inquiry by the Court about what (if anything) the [appellant] said to the [respondent] in February 2004 about the breakdown of the de facto relationship, he responded that he told the [respondent] “this isn’t working – we’re better off on our own.” He said she said she couldn’t afford to be living on her own and it was better that the [appellant] stayed and contributed to the household. He said he then asked her “how much do you want.” This conversation was not included in the [appellant]’s affidavit nor was it put to the [respondent] by the [appellant]’s Counsel in cross examination. I do not accept the [appellant]’s evidence in this regard. I do not accept that the [appellant] directly communicated to the [respondent] in February 2004 or at any other time after that until he left the home in June 2014 that the de facto relationship had broken down...

(Emphasis added)

29. In addition to those passages the primary judge indicated from time to time that she preferred the respondent’s evidence on particular issues without giving more extensive reasons.
30. The obligation to give reasons is well-known: Bennett and Bennett [1990] FamCA 148; (1991) FLC 92-191 at 78,266. The reasons must enable the parties to understand the basis of the decision and the extent to which their arguments have been understood and accepted: see, for example, Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [59] and the cases cited therein.
31. It is clear from even a cursory perusal of the affidavits relied on by the parties that the credit of the deponents to those affidavits was critical in determining the outcome of the hearing. Little documentary evidence was adduced in the case and none that could be said to have unequivocally supported either party’s case.
32. During the course of their respective cross-examinations, both parties made concessions as to their recollection of events, accepting that parts of their affidavits were not entirely correct. This, of course, is not surprising given the length of time that had elapsed between many of the events.
33. Thus there was precious little for the primary judge to take into account in determining issues of credit.
34. There was one issue of significance. The respondent called evidence from her sister to the effect that the parties and the child regularly attended her home for barbeques, particularly during the summer, when the children used to play in the pool. She also gave evidence that the parties attended with the child at every family Christmas. The appellant’s evidence was silent as to the latter claim but he denied that the frequency of the visits for swimming and barbeques was anything like that asserted by the respondent’s sister.
35. The primary judge said at [49]:

The [respondent] said there were other times when she, the [appellant] and [the child] attended the [Suburb F] property for barbecues and socialised particularly with the [respondent]’s sister and brother in law. I find this to be the case and note that the [respondent]’s sister indicated they always presented as if they were “together.” I accept that evidence.

36. The preference for the respondent’s sister’s evidence supported the earlier findings.
37. Leaving aside the difficulties with the finding that the parties “presented as if they were ‘together’”, which we have already discussed, there is a clear acceptance of the respondent’s sister’s evidence upon which she was crossexamined at some length.
38. A significant aspect of the primary judge’s preference for the respondent’s evidence over the appellant’s evidence was the appellant proffering, towards the end of his cross-examination, his evidence that there had been a conversation between him and the respondent in February 2004 which confirmed the breakdown of the relationship. He had not given any such evidence in his affidavit or evidence-in-chief. His counsel had not raised any such conversation with the respondent during her cross-examination. Clearly, her Honour regarded this evidence with great suspicion and, we infer, as a recent invention.
39. The finding that the appellant failed to communicate his intention to end his relationship with the respondent is subject to a separate ground of appeal. However, the appellant gave no evidence as to why it had not been the subject of earlier evidence or raised with the respondent by his counsel. Accordingly, it is our view that the finding was open to her Honour and it was not necessary for the respondent to seek to disprove the statements made by the appellant or cross-examine him to suggest they were incorrect.
40. Taking all these matters into account, her Honour’s reasons as to why she made the credit findings, whilst brief, explain the basis of her findings.
41. We are not satisfied that the primary judge failed to provide adequate reasons for accepting the evidence of the respondent over that of the appellant.

Ground 2.1

42. Ground 2.1 asserts:

That the Trial Judge failed to provide any or any adequate reasons, and made findings contrary to the weight of the evidence, that:

2.1 The parties presented publicly as a couple...

43. The appellant’s submission is twofold and is as follows:

In none of the instances where the trial Judge found that the parties “demonstrated”, “presented” or “attended” as a “couple”, does her Honour provide any qualitative meaning for that term, nor provide reasons for how that constituted evidence of a de facto relationship.

Further the notion of a “couple” is not a relevant consideration in sec 4AA(2) and, even if her Honour was intending to direct herself to the “reputation and public aspects of the relationship” (sec4AA(2)(i)) no relevant finding was made, nor reasons given, to engage that consideration. Nor, respectfully, was there evidence that properly permitted a finding in that respect.

(Appellant’s Summary of Argument, paragraphs 4.2.3 and 4.2.4)

44. The primary judge’s reasons relevantly were:
    46. The [appellant] contended that the parties did not hold themselves out as a couple in public however he agreed “we did attend events from time to time as parents for [the child] for her benefit.” I find that the parties demonstrated they were a couple when they attended together at school functions, attended at the [respondent]’s sister’s home whether to swim in the pool or for a barbecue, when they had pizza with friends and when they had a barbecue on the [Suburb F] property in the presence of employees from [the appellant’s company].
    47. I accept the [respondent]’s evidence that when they attended barbecues at the [respondent]’s sisters home, the [respondent] would sit with the [appellant] and sometimes [the child] would sit between them. I accept the [respondent]’s evidence that the parties went out together with mutual friends to pizza restaurants. They attended at least one dinner together at the home of the parents of children from [the child]’s school. The [appellant] recalled this was in about 2011 and he said it occurred on one occasion. The [respondent] suggested it occurred more than once. The parties attended all of [the child]’s school functions together the [appellant] said occasionally he would arrive at a different time to the [respondent]. The [appellant] deposed in his affidavit to the parties going out together on one occasion when [the child] was very young whilst a neighbour babysat. I find that the parties frequently presented as a couple. I note however that the parties agree that they did not go out to dinner alone or go on holidays together as a family prior to 9th June 2014.

...

49. The [appellant] agreed that he, the [respondent] and [the child] had a barbecue on the [Suburb F] property with two employees from [the appellant’s company]. I find that the parties presented as a couple on this occasion. The [respondent] said there were other times when she, the [appellant] and [the child] attended the [Suburb F] property for barbecues and socialised particularly with the [respondent]’s sister and brother in law. I find this to be the case and note that the [respondent]’s sister [Ms T] indicated they always presented as if they were “together.” I accept that evidence.

...

56. ... I find that the parties continued to have sexual relations after February 2004, socialised together as a couple and continued to provide mutual support for each other with the [respondent] undertaking the majority of domestic tasks and the [appellant] providing financial support after February 2004 and their relationship continued in that manner until the respondent left the home in June 2014 ... I find that the parties were recognised as a couple amongst parents at [the child]’s school, with friends and with the [respondent]’s family.

(Emphasis added in bold)

45. This led to her Honour coming to her ultimate conclusion as follows:
    58. The Court is required to be satisfied having regard to all the circumstances of their relationship, the parties had a relationship as a couple living together on a genuine domestic basis that did not break down before 1st March 2009. Notwithstanding that their sexual relationship came to an end in 2005 and they had no joint assets or liabilities (save for perhaps a motor vehicle) I find that the parties by their conduct demonstrated a degree of mutual commitment to a shared life, supported and cared for their child, provided practical and financial assistance and support for each other and their child. I find that a de facto relationship existed between the parties commencing late 2001 and continuing until 9th June 2014.

(Emphasis added)

46. The findings that the parties “presented as a couple”, and the findings to like effect, clearly played a part in the conclusion at [58] that the parties “by their conduct demonstrated a degree of mutual commitment to a shared life” and thus formed a part of her Honour’s reasons.
47. We have already been critical of the phrase “presented as a couple” and do not know what is meant by it.
48. However, in making these findings the primary judge may have done no more than identify that the parties attended these events together. To the extent that the findings went beyond this to suggest they presented as a couple at those events, then this is a reflection of the wording in the respondent’s affidavit. As we have recorded, the primary judge preferred the evidence of the respondent to that of the appellant and we have found that her Honour gave adequate reasons for taking that course. It is the same reasoning process that led to the findings quoted above and the aspect of the ground which asserts inadequate reasons fails.
49. The second aspect of this ground is the appellant’s complaint that the primary judge’s ultimate finding that the parties were in a de facto relationship within the meaning of s 4AA of the Act was fundamentally flawed. The appellant advanced this argument on several bases: that the primary judge made a number of material mistakes of fact; that by making a series of findings that the parties “presented as a couple”, her Honour introduced into her analysis an impermissible gloss on the law; and that the finding of a de facto relationship was against the weight of the evidence.
50. The appellant argued that the primary judge made a number of mistakes of fact which caused her Honour’s discretion under s 4AA to miscarry. Three examples with respect to her Honour’s findings at [47] were said to illustrate this point.
51. In the first sentence of [47] her Honour made the following finding:

I accept the [respondent]’s evidence that when they attended barbecues at the [respondent]’s sisters home, the [respondent] would sit with the [appellant] and sometimes [the child] would sit between them.

52. There was no evidence in the respondent’s affidavit to that effect. The finding seems to have been based on a misunderstanding of the following evidence, given by the respondent during cross-examination of her by the appellant’s counsel:

And he attended those events in the company of you and [the child]?---Yes.
And you didn’t interact as a couple when you attended those events?---Well, if you specify the event – if I was at my brother’s place or my sister’s place because it was a function, I was always in the kitchen helping my sister-in-law or my sister. There was lots of people there to talk to, to catch up with, but I was mainly helping.
...
HER HONOUR: Well, I mean, doing the best you can, the question is you didn’t act – you didn’t interact as a couple with [the appellant] when you went to these functions. I will allow the question. Have you got a response to that, that question? It’s put to you that you did not interact with [the appellant] as a couple when you went to the social functions?---Well, when we arrived, we always greeted everybody together. We spoke with quite a few of the people together. I would just go off and see what needed to be done or helped. Sometimes we sat together. I was usually one of the last people to sit at a table. Whatever was left over, I would just, basically, sit either down with my sister. [The child] would be amongst us, sit between us.
(Transcript 1 February 2017, p.40, lines 20–25; p.40, line 43 to p.41, line 4) (Emphasis added)

53. Any error as to precisely where the child was sitting could not have any significant impact on the outcome of this matter.
54. In the second sentence of [47], her Honour found:

I accept the [respondent]’s evidence that the parties went out together with mutual friends to pizza restaurants.

55. Again, there was no evidence to that effect in the respondent’s affidavit or in the cross-examination of her. The evidence in fact came from the respondent’s sister’s affidavit, in which the sister said that:

Over the years, [the respondent] would often say to me words to the effect: “What are you doing on the weekend?” She would often say “This weekend [the appellant] and I are going out for dinner for pizza with friends”
(Affidavit of Ms T filed 22 November 2016, paragraph 9)

56. When cross-examined on that point, the respondent’s sister said:

When you say this occurred in 2007 to 2009, how often were these conversations, or was it a one off?---No, they had a couple of – I had a couple of conversations, because they would go to the pizza place either in [Suburb W], or there was one in [Suburb H] they would go to.
...
And where was that?---There’s a little pizzeria in [Suburb H] that she – that they really like, and ... a whole group of their friends would go there, or they would go to the one up at – I think it’s just over the bridge at [Suburb W].
(Transcript p.54, lines 9-12; p.55, lines 38-41)

57. This evidence was not the subject of any objection and accordingly could be taken into account by her Honour.
58. In the third sentence of [47] the primary judge said:

They attended at least one dinner together at the home of the parents of children from [the child]’s school. The [appellant] recalled this was in about 2011 and he said it occurred on one occasion. The [respondent] suggested it occurred more than once.

59. There was no evidence from the appellant in his affidavit to that effect. The proposition that the parties attended multiple dinners together at the homes of parents of children from the child’s school was put to him during crossexamination. He denied the proposition, but did admit that he had attended one dinner.
60. We observe that, contrary to the assertion made by the appellant, there was ample evidence that the appellant had attended many family events with the respondent and the child.
61. There were other findings that were however not open to her Honour. For example, we were taken to no evidence that supported the finding that the respondent cut the appellant’s hair and trimmed his beard ([53]). The respondent led no evidence on this issue and when the proposition was put to the appellant, he denied it. Where a witness’s evidence is not accepted, it must be simply disregarded. Thus a denial of a proposition put to a witness whose evidence is not accepted is not evidence of the proposition. For the proposition to be established, there must be evidence from another source.
62. The appellant also argued that by making a number of findings that the parties “presented as a couple” and the like, her Honour added an impermissible gloss to the terms of s 4AA and thereby caused her discretion to miscarry.
63. Before turning to the specific complaints raised by this aspect of the ground, we wish to make some observations.
64. The appellant submitted that the notion of a “couple”, of itself, is not a relevant consideration for the purposes of s 4AA(2).
65. That is not entirely correct. The ultimate task of the court is to determine whether the parties had “a relationship as a couple living together on a genuine domestic basis” (s 4AA(1)(c)). The concept of a couple is thus part of the test. How that test is met is determined by the considerations required by s 4AA(2). None of those directly refers to “couple”. It is here that care needs to be taken not to add a gloss to the words of the section, as the authorities to which we have already referred make clear (Sinclair at [93]–[94]; Cadman at [42]–[43]).
66. Although it was not raised by counsel for the appellant, the primary judge rejected many, but importantly not all, references to “presenting as a couple” and the like on the ground that they were conclusions (although we assume by this that her Honour rejected the evidence because it had no probative value – see Britt & Britt (2017) FLC 93-764 at 77,105–77,107). It is not clear whether these findings were made on the basis of the rejected material or the limited number of assertions to the effect that the parties “presented as a couple” that remained in evidence. Even if the latter is the case, the nature of the assertion reduces the weight that should be given to it.
67. We have found that her Honour made some mistakes of fact and erroneously made findings that the parties “presented as a couple” (either because the evidence was not before the court or because inappropriate weight was given to it). However, it is necessary to consider the materiality of these errors.
68. In De Winter and De Winter (1979) FLC 90-605, Gibbs J said at 78,092:
    71. ...where a judge has reached such a conclusion for a variety of reasons, and it is demonstrated that some of those reasons are unsound, his decision will not necessarily be upheld because the other reasons would in themselves have been sufficient to support it. The question is whether the invalid reason has influenced the ultimate conclusion, or whether the error was immaterial; if the error did affect the conclusion, the result may nevertheless be so plainly right that it can be allowed to stand notwithstanding the unsoundness of some of its foundations.
69. Shorn of the gloss of “presenting as a couple”, it is clear that the primary judge found that between 2002 and 2013 the parties attended many social and family events and school functions with the child. These events included family Christmases and birthdays, which were celebrated at the home of the parties as well as the homes of other relatives. The parties regularly visited the respondent’s sister (almost weekly) over the summer months. They attended other family events sometimes every two days and at other times less frequently but still regularly.
70. This was significant evidence of the public aspects of the parties’ relationship and supported a finding that there was a de facto relationship. If the appellant wished to contend that the parties’ conduct at those events led to a different conclusion then it was incumbent on him to adduce evidence to support that proposition.
71. There was, of course, much other evidence taken into account which was also capable of supporting a finding that there had been a de facto relationship.
72. Thus we also reject the appellant’s final submission as to this ground that the finding that the parties were in a de facto relationship was against the weight of the evidence. Those submissions focussed on the public aspect of the relationship – namely the attendance at events and functions – and tended to suggest that this consideration was determinative. As was made perfectly clear in Sinclair at [56] absent error on the part of a trial judge it is difficult for such submissions to succeed. Merely because another judge may have weighed the evidence or the consideration differently does not, of itself, establish error.
73. However, two things are apparent. Reference to the evidentiary context in which her Honour found from time to time that the parties “presented as a couple” (or a similar expression) makes it tolerably clear that the expression was intended to refer to the conduct to which the evidence referred in an unfortunate rolled-up expression. Secondly, as can be seen from the primary judge’s reasons at [58], her Honour was aware of the legislative test. We incline to the view that her reasons, when read as a whole in conjunction with the evidence, demonstrate that she did not inform herself by reference to an incorrect test but she understood and applied the legislative test.
74. Further, looked at in such a light we consider that any error in finding that the parties “presented as a couple” goes only to one aspect of one consideration under s 4AA(2) – that is, s 4AA(2)(i) or the reputation and public aspects of the relationship – and was not material to the outcome.
75. Accordingly, error has not been established.
76. It follows that this ground does not succeed.

Ground 2.2 and 2.2A

77. Under these grounds the appellant submitted that the primary judge failed to give any adequate reasons for finding that:
    • the appellant failed to communicate his intention to end the relationship to the respondent when such evidence was unchallenged;
    • the parties continued to have a sexual relationship after February 2004;
    • the respondent made the appellant’s lunch until about 2005;
    • the respondent had involvement in the appellant’s business post-2004; and
    • the respondent gave the appellant a haircut or haircuts and trimmed his facial hair.
78. It is also submitted that such findings were against the weight of the evidence.
79. We have already dealt extensively with the primary judge’s reasons in dealing with Ground 1. The finding that the respondent’s evidence should be preferred to that of the appellant justified the first four of these findings. We have already held that there was no error in that finding. As to the fifth, while we accept that it was an error, we have found that it was immaterial.

Grounds 2.3, 3, 3A and 4

80. The appellant contended that on a proper analysis of the evidence, the respondent had not discharged her evidentiary onus of establishing that a de facto relationship existed for the relevant period and that therefore her Honour’s conclusions were erroneous. In short, the contention is that the evidence was incapable of establishing that a de facto relationship existed.
81. A significant aspect of these grounds was the submission that the relationship was terminated when the appellant communicated his intention to separate to the respondent. As that evidence was not accepted, the submission must fail.
82. We turn to the appellant’s final grounds. He submitted that the following matters make the primary judge’s finding that there was a de facto relationship unsustainable:
    • The appellant gave evidence that the payments he made were “board” (we note that the respondent described them as contributions to living expenses. The primary judge generally preferred the respondent’s evidence);
    • The payments continued to the time of the hearing (that is, well after the undoubted separation). These payments changed in value to the respondent in that she was no longer spending any money on the appellant’s needs after 2014;
    • The purchase of cars was irrelevant as the appellant purchased a car for the use of the respondent well after the undoubted separation;
    • The parties did not go out to dinner together or go on a holiday together after 2004. They did spend some short time on holidays after separation in 2014.;
    • There was no evidence of any discussion between the parties as to a shared life, planning for the future or expression of love or support.
83. As was pointed out in Sinclair at [54]–[56], a finding as to whether or not a de facto relationship exists depends upon an assessment of all of the circumstances of the relationship, with each circumstance to be given such weight as the court considers appropriate. The Court in Sinclair quoted with approval the following statement from Lynam v Director General of Social Security (1983) 52 ALR 128 at [131]:

Each element of a relationship draws it colour and its significance from the other elements some of which may point in one direction and some it the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.

84. Accordingly, it is not sufficient merely to persuade an appeals bench that, had they been in the position of the trial judge, they would have come to a different conclusion. As we have said, in order to succeed, the appellant must establish that a finding of a de facto relationship was not open on the evidence.
85. Whilst the matters raised by the appellant are relevant, they have variable weight. The appellant’s description of the payments he made as board (had the primary judge accepted that description) may well carry very little weight. Similarly, the fact that the parties did not go out for dinner or go on holidays together could, depending on the reason, have a significant impact on the outcome. For example, the parties may have preferred to spend their money on other things and the lack of such dinners and holidays would not bear upon the nature of the relationship. On the other hand, it may be because they did not want to spend any time in each other’s company, which may well indicate the nature of their relationship. However, as those reasons were not explored in the evidence, it would not be surprising if little weight was given to the bald fact that there was a lack of dinners and holidays taken together.
86. Taking these matters into account and the facts as found by her Honour, we consider that the finding of a de facto relationship was open on the evidence.
87. It follows that these grounds do not succeed.

APPLICATION FOR LEAVE TO APPEAL

88. Consistent with the Court’s approach in Cuan at [103], we do not need to consider the application for leave to appeal because we are also of the view that the declaration made by the primary judge pursuant to s 90RD of the Act was a final order and that leave was not required.

APPLICATION TO ADDUCE FURTHER EVIDENCE

89. By an Application in an Appeal filed on 29 September 2017 the respondent seeks to adduce further evidence in the appeal.
90. The evidence is to the effect that on a day in 2017, the appellant came to the respondent’s Suburb L home and asked to speak to her in the bedroom. When they arrived there he repeatedly and angrily asked the respondent to withdraw the proceedings, saying that he did not want to give her a cent. He is then said to have removed a shotgun from a black sports bag he had carried into the bedroom. When he did so, bundles of money fell onto the bed. He is said to have pointed the shotgun at the respondent’s head and, leaving out the expletives, indicated that he proposed to kill the respondent, use the money to pay someone to kill her, kill a member of her family and if a member of the police was called it was either going to be him or a policeman who was killed. During this time the respondent said she managed to put her hand on the barrel of the gun and push it away from her head. Shortly afterwards the gun was fired. Fortunately, no one was injured. The child apparently saw these events, or at least the end of these events. The appellant has been taken into custody where he remained at the time the affidavit was sworn. He has been charged with a number of serious indictable offences as well as a number of firearm possession offences.
91. Whilst the Court has a broad discretion under s 93A(2) of the Act to admit to further evidence on appeal, the evidence proposed to be called must bear some relevance to the issues being agitated on appeal. We cannot see any connection between the proposed evidence, dramatic as it may be, and the resolution of this appeal.
92. Counsel for the respondent submitted that the evidence was relevant to the issue of leave. She argued that the court should accept the evidence on the appeal because the appellant’s conduct subsequent to the making of the primary judge’s orders was such that “a court exercising an equitable jurisdiction ... would find the appellant’s behaviour to be so egregious as to provide the court with grounds to refuse to grant an indulgence or exercise a discretion in his favour”. This argument was advanced on the basis that the appellant, because of his conduct described in the further evidence, was “not coming to the court with clean hands, which is the basis of equity”.
93. As we have said, leave to appeal is not required for appeals from s 90RD declarations. The appellant’s appeal was therefore brought as of right. In hearing this appeal, which we observe was validly instituted, the Court was neither granting the appellant an indulgence nor exercising a discretion in his favour.
94. In any event, the equitable maxim that a person who comes to equity must come with clean hands applies only when a person seeks relief in equity. If that person’s conduct in relation to the transaction in respect of which relief is sought is improper, then equitable relief may be denied on that basis. That doctrine has no application to an appeal brought under s 94AAA of the Act or an application for leave to appeal under s 94AA.
95. When it was pointed out that leave was not required, counsel for the respondent maintained the submission and said that the right of appeal was similarly barred. She further submitted that “it is an affront to public policy to allow a person who has acted the way the appellant acted to then have recourse to the court”.
96. Subject to s 94AA, s 94AAA provides an unfettered right of appeal. No authority was relied upon to support the respondent’s submission, which is rejected.
97. Accordingly the application to adduce further evidence will be dismissed.

CONCLUSION

98. It follows that the appeal will be dismissed.

COSTS

99. The appellant has been wholly unsuccessful. He conceded that he could not oppose an order for costs if that was the outcome. There will be an order that he pay the respondent’s costs. The appellant however should not bear the costs of the respondent’s unsuccessful application to adduce further evidence.

I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Aldridge & Watts JJ) delivered on 13 April 2018.

Legal associate:

Date: 13 April 2018