Parentage presumption in dispute
- Ms Clarence (“the appellant”) has appealed against parenting orders made by Berman J on 9 November 2015 concerning her daughter, P (“the child”). The appeal is opposed by Ms Crisp (“the respondent”).
- The primary issue is whether the trial judge erred in finding that the de facto relationship between the parties still subsisted on the day on which the child was conceived. For reasons that follow, the finding was open to his Honour.
The significance of the finding concerning the de facto relationship
- The appellant is the child’s birth mother, but the child was conceived with an egg supplied by the respondent. The medical procedure by which the child was conceived was performed on 11 July 2011. If the parties were in a de facto relationship on that day, then they were both the child’s “parents” for the purposes of the Family Law Act 1975 (Cth) (“the Act”).
- As his Honour found that the parties were in a de facto relationship at the relevant date, the legislative presumption in favour of equal shared parental responsibility applied, and the respondent had to be treated as one of the child’s parents for the purposes of s 60CC of the Act.
- His Honour made an order for equal shared parental responsibility (subject to certain exceptions). After considering the matters in s 60CC, his Honour decided that the child should live with the appellant (as was agreed), but spend time with the respondent in excess of the times proposed by the appellant.
The grounds of appeal and the statutory provision
- There are seven grounds of appeal, but we need consider only the first two, which attack the finding about the de facto relationship. The appellant conceded that the other grounds would fall away if Grounds 1 and 2 fail.
- The challenge to the trial judge’s finding stands to be considered by reference to s 4AA of the Act, which is in the following terms (original emphasis):
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.
The trial judge’s reasons
- To ascertain whether his Honour erred, it is necessary to set out those parts of the reasons relevant to the finding that the de facto relationship subsisted at the time the child was conceived in July 2011, even though the respondent had moved out of the parties’ former joint residence in March 2011.
- After reciting s 4AA, his Honour discussed the law in the following terms:
- In Cadman & Hallett (2014) FLC 93-603 the Full Court considered a ground of appeal that asserted that the trial judge had failed to determine that the parties “had so merged their lives that they were for all practical purposes, living together as a couple on a genuine domestic basis”.
- Their Honours then said at [40 – 41]:
- In Cadman & Hallett (2014) FLC 93-603 the Full Court considered a ground of appeal that asserted that the trial judge had failed to determine that the parties “had so merged their lives that they were for all practical purposes, living together as a couple on a genuine domestic basis”.
The phrases used in both the ground and the written submissions seem to have been taken from Jonah v White (2011) 45 Fam LR 460 at  and .
In dismissing the Appeal from that decision, the Full Court in Jonah v White (2012) FLC 93-522 did not adopt that expression which had been used by the trial judge but rather at  and  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”.
 The court may consider the matters to which the following subsections refer in determining that seminal question posted by section 4AA(1)(c). We accept the submission that none of the matters referred to in the section has precedence over any other, nor must all necessarily be found before a finding of a de facto relationship is made.
- In Weston v The Public Trustee (1986) DFC 95-032, Young J considered that the proper approach was to split the phrase “a couple living together on a genuine domestic basis” into three component parts namely:
(b) bona fide domestic basis; and
(c) as his wife.
- This approach was considered by Powell J in Roy v Sturgeon (1986) 11 Fam LR 271 and at page  his Honour noted that:
With respect, it seems to me that to attempt to dissect the phrase “living together as a husband and wife on a bona fide domestic basis “into discreet “elements” and then to test the facts of a particular case by reference to a set of a priori rules in order to establish whether the particular “element” is or is not, present, is to ignore the fact that, just as human personalities and needs vary markedly, so, too, will the various aspects of their relationship which lead one to hold that a man and a woman are living together as husband and wife on a bona fide domestic basis vary from case to case. As I said in D v McA (1986) 11 Fam LR 214, it seems to me that each case will involve the court making a value judgment having regard to a variety of factors relating to the particular relationship…
- His Honour then, correctly in our view, said:
- Turning to the facts of the present case, his Honour recorded that:
- the parties agreed they had commenced a de facto relationship in 2004;
- the appellant claimed that the relationship ended on 21 March 2011, when the respondent left the home in which they had been living, albeit the appellant was “hopeful that the parties would reconcile”;
- the appellant’s case was that after 21 March 2011, the parties remained in “a friendly relationship” and the respondent agreed to donate embryos for use in the July 2011 procedure because she “understood the depth of the desire of the [appellant] to have a child”;
- the respondent’s evidence was that she continued to spend four or five nights a week at the appellant’s home until August 2011.
- His Honour found that although the respondent had not stayed overnight as often as alleged, she was nevertheless a “frequent visitor” to the parties’ former home. In arriving at that conclusion, his Honour said that he derived “some assistance from the extent and nature of the communication between the parties, but in particular the tenor of their text messaging during the relevant period” (by which his Honour meant the time from 21 March 2011 to the date on which the child was conceived).
- The trial judge also noted that the parties continued a sexual relationship, albeit the frequency of sexual relations was in dispute. His Honour said:
- To some extent the frequency of sexual relations is of less weight than the admission that from time to time the parties engaged with each other sexually.
- There is however some relevance as a chronological marker to the allegation of the [respondent] that the parties engaged in sex three days before the conception of [the child] in July 2011.
- His Honour concluded his discussion of the respondent’s evidence by saying:
- … it is alleged [by the respondent] that in the period following the successful conception, the parties engaged in discussion concerning their future relationship and involvement with [the child]. The [respondent] considered that they had a future together centred on their joint care of [the child]. If accepted, the [respondent] refers to ongoing exchanges of expressions of affection and love and she was involved in the initial doctor visits, an obstetric appointment in which the [respondent] says she was introduced as the [appellant’s] partner and some pre-planning for the birth.
- A feature of the parties’ relationship was their heavy reliance upon text messaging as a form of communication. The detail of their text messaging in particular centred around 11 July 2011 is significant in the overall factual matrix and determination as to whether the parties were in a de facto relationship at the relevant time.
- From the perspective of the [respondent], it is difficult for her to assess how and why the relationship that did exist between the parties finally came to an end. On 6 August 2011 the [respondent] asserts that the [appellant] took steps to bring to an end their working partnership. The level of disputation and disagreement increased and by late August 2011 the [respondent] considered that the relationship was over.
- His Honour next considered the appellant’s evidence. In doing so, he said:
- … Certain matters are not in dispute. The parties engaged in ongoing and frequent text messaging as a significant if not primary source of communication when they were not in [each] other’s physical presence. The [appellant’s] case is not that the parties did not spend time together but rather to reject the frequency as asserted by the [respondent]. If the matter was entirely determined on the question of frequency of contact, I would be inclined to prefer the evidence of the [appellant]. The issue is not so easily resolved. It is more a matter of the nature of the relationship that existed between the parties following their physical separation in March 2011 rather than the frequency of time spent together. Certainly their physical relationship is important, but I consider it to be but one of a number of potential relationship indicators.
- On the [appellant’s] case, whilst the parties did not engage in regular sexual relations, their post-separation relationship was not without intimacy. They also engaged in social activity not just restricted to each other, but including family and friends.
- The [appellant] properly admits to exchanges between the parties expressing their love for each other on a number of occasions, but with increasing frequency leading up to 11 July 2011 being the date of implantation of the [respondent’s] fertilised embryo.
- It is instructive to consider the description by the [appellant] of the engagement of the parties with each other in the days leading up to the implantation:-
7.7.11 Parties or one of them attend [Ms E]. [The respondent] stays at my home.
8.7.11 [The respondent] stays at my home.
9.7.11 [The respondent] stays at my home. We have sex and smoke speed.
10.7.11 [The respondent] stays. Each of us tell the other they love them. Breakfast at [Hotel] – [The respondent’s] lunch party – [The respondent] talks in text message in effect in getting speed for pipe.
11.7.11 [The respondent] remains until before work.
- The trial judge also recorded that during the relevant period, the parties were identified as “partners” on donor declarations relating to the embryos. However, his Honour also recorded that the appellant asserted that the parties had misrepresented their relationship because they knew fertility treatment would not be available to the appellant if they were not “partners”.
- In support of that submission, the appellant relied on the evidence of Ms E, who was a psychologist the appellant had been consulting since 2009, but who had also seen the parties together. The findings concerning this witness are of special importance, given they were the subject of particular attack by the appellant.
- I remain unconvinced by the evidence of this witness. There are significant inconsistencies as between her affidavit of 16 March 2015 and the notes attached to her affidavit of 24 August 2015. The cross examination has indicated error and omission. It is difficult to discern from the notes whether it is simply the subjective opinion of the witness or whether part of the notes reflect the direct speech of each of the parties, but in particular the [respondent]. Moreover, the witness has approached the matter from the foundation and history as provided by the [appellant] and I consider that the potential for the evidence to have been distorted, particularly having regard to the focus that the witness had as a result of the position put by the [appellant] and the instruction of her solicitor is such that I can place little or no weight on the notes and the matters raised in the less reliable narrative as contained in the first affidavit.
- I do not consider that the evidence of this witness provides assistance to the [appellant] in respect of her contention that as at 11 July 2011 the parties were no longer in a relationship.
- It could also be argued that the very fact of the [respondent’s] continued attendance with the [appellant] upon this witness may well be support for the contention that both parties were keen to explore and pursue a reconciliation. That was certainly the ongoing focus of the [appellant] even as late as December 2011 where the letter of the witness to a general practitioner refers to the [appellant] as “yearning for her and her partner to be reunited and to have a family unit”.
- His Honour found that in the period from 6 May 2011 to 26 July 2011 there had been 850 text messages between the parties on topics which ranged “from the mundane to the highly personal”. His Honour refrained from giving examples of these, but examination of them satisfies us that his Honour was not guilty of any exaggeration in describing some as “highly personal”.
- His Honour also found:
- The messaging contains florid announcements of each of the parties’ love for the other in circumstances where I consider that the expressions are not empty statements but a genuine reflection of how the parties felt towards each other. There are messages that indicate that the parties were happy with each other and pleased to be in their company but equally there are messages that are critical of the other’s conduct.
- I consider that the frequency of the text messaging and the range of sentiments expressed and exchanged between the parties is not as would be expected where there are irreconcilable differences between them. There may have been dissatisfaction and disharmony, but the content of the messaging is consistent with parties who are either in a relationship or have not yet determined that the relationship is over and they have nothing to offer the other.
- The final part of his Honour’s treatment of the issue appears under a heading “Fact of Separation”. This is of critical importance, especially for Ground 2.
- The notion of separation is clearly something more than a physical separation. It must be the irreconcilable breakdown of their personal and domestic relationship.
- Relying upon what has been described as the “classic statement” of what constitutes a separation by Watson J in Todd & Todd (No 2) (1976) FLC 90-008 the Full Court in Pavey & Pavey (1976) FLC 90-051 at page 75,211 said:
…“separation” means more than physical separation – it involves the breakdown of the marital relationship (the consortium vitae). Separation can only occur in the sense used by the Act where one or both of the spouses form the intention to sever or not to resume the marital relationship and act on that intention, or alternatively act as if the marital relationship has been severed. What comprises the marital relationship for each couple will vary. Marriage involves many elements some or all of which may be present in a particular marriage – elements such as dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of marriage by both spouses in public and private relationships.
- Accordingly, separation should bring to account intention, action and communication.
- There is no doubt that from March 2011 the parties were no longer living together under the same roof. The fact that their relationship at that time was marred by argument, conflict and disharmony, whilst one of the relevant considerations was not a state of affairs unusual or unknown to them during the course of their relationship. It is conceded by each of the parties that disharmony, argument and even potentially overtly aggressive conduct, was a not uncommon state of affairs. Equally, there were significant periods of time when the parties lived harmoniously together both in their personal domestic arrangements, but also in respect of their work arrangements. Each relationship is likely to vary in its constituent elements. The relationship between the [parties] is no different. As has often been the subject of comment, whether parties have separated is a matter of fact and degree to be determined by the circumstances of each case. This requires a comparison of the elements of the relationship before the alleged separation date and those after that date.
- In Pavey & Pavey at page 75,214 the following was held:
…In any case it is not possible to apply some mathematical formula to [domestic] activities and determine whether a “separation” has occurred. Rather the evidence should examine and contrast the state of the marital relationship before and after the alleged separation.
- His Honour then discussed the facts of this matter and concluded:
- I find that notwithstanding their physical separation in March 2011, the entire focus of the parties was to explore a reconciliation. Ultimately their endeavours were unsuccessful, but I accept that they were genuine in their pursuit of an ongoing relationship which would have a child as its focus. There was undoubtedly volatility in their relationship both before and after their physical separation but it could not be said that their conduct towards each other and their public representations and engagement was significantly different to that which existed in happier times.
- I specifically find that the [respondent] did not indicate a clear intention that the relationship was over as at 11 July 2011 and if my adverse assessment of the evidence of [Ms E] is unjustified, I consider any indication by the [respondent] that the relationship was over is part of a “pattern of behaviour” consistent to similar considerations having been raised in the past and successfully worked through by the parties on each occasion.
- Accordingly, I find that notwithstanding the physical separation of the parties that their de facto relationship endured and continued beyond the date of conception namely, 11 July 2011.
Ground 2 – Applying wrong principles
- For convenience, we intend to discuss Ground 2 first. The ground has two limbs, since it asserts that the trial judge
applied a wrong principle of law in having regard to the test for a marital separation in determining the existence of a de facto relationship while failing to have regard to the distinction between the fragile nature of de facto relationships and the robust institution of marriage.
- The first limb of Ground 2 asserts error on the part of the trial judge in applying judicial pronouncements relating to the separation of married couples to cases involving de facto couples. The dicta to which his Honour referred were drawn from cases where the issue was whether a couple had “lived separately and apart” for more than a year in order to establish that the ground for divorce had been made out for the purposes of s 48(2) of the Act. We accept that there is no precisely equivalent question posed by the Act in the case of de facto couples; instead, the comparable question is whether their de facto relationship has come to an “end” for the purposes of the limitation period in s 44(5)of the Act.
- It might be argued that the test for the purposes of s 48(2) (i.e. that the spouses began to live “separately and apart”) is easier to meet than the test required for s 44(5) (i.e. the relationship of de facto partners came to an “end”). We say this, in part, because s 48(3) provides that married people who have “lived separately and apart” for more than a year before filing for divorce cannot be divorced if there is a “reasonable likelihood of cohabitation being resumed”, presumably on the basis that their marriage might not be at an “end”.
- Reflection on the etymological differences between s 48 and s 44(5) might also lead to an argument that a de facto relationship does not come to an “end” until such time as there is no reasonable likelihood of it being resumed. We do not wish to be seen as accepting there is merit in such an argument, since it was not advanced before us in those terms. It also needs to be kept in mind that the question of whether there is a reasonable likelihood of cohabitation being resumed is not considered at the time a married couple begins to live “separately and apart”, but rather at the time a divorce application is before the court. On the other hand, the question of when a de facto relationship has come to an end, at least in a case such as the present, must be judged not by reference to the position at the time of the hearing, but rather at an earlier date.
- We draw attention to the difference in wording between the provisions of the Act only to suggest that it ought not be the appellant who complains about his Honour having been guided by case law directed to the date on which a married couple have begun to live “separately and apart”, since such findings do not involve any greater level of finality than a finding that a couple’s relationship is at an “end”, and arguably involve something less.
- Although we conclude there is no basis for complaint by the appellant, we nevertheless consider that his Honour misdirected himself at  and following of his reasons, when he posed the question of whether the parties had “separated”. While that is a question which must be asked in the case of a married couple seeking a divorce, it is a potentially misleading question in cases such as the present, where the issue is whether a de facto relationship existed at a particular point in time. However, his Honour ultimately answered the real question he was required to consider when he found at  that “the de facto relationship endured and continued beyond the date of conception”.
- Accordingly, we accept the submission of senior counsel for the respondent that nothing turns on the trial judge’s discussion of whether the parties had “separated”, and that this part of the judgment should be seen as part of “his Honour’s journey, examining the facts and circumstances, the contentions, the evidence, that could safely lead his Honour to find the … composite picture … at the relevant date”.
- The first limb of Ground 2 therefore lacks merit.
- The second limb of the complaint finds its origins in this passage from the judgment of Dutney J in S v B  QCA 449;  1 Qd R 537:
33. De facto relationships are by nature fragile. The robust institution of marriage survives until formally dissolved by legal process, even though the parties are no longer a couple and exhibit none of the observable indicia of a domestic arrangement. It has been recognised, however, that the persistence of those indicia is fundamental to the continuance of a de facto relationship. …
- In his oral submissions, counsel for the appellant eschewed any suggestion that this part of the complaint relied upon sociological differences between legal marriages and de facto relationships. Once this is understood, recognition of the distinction between the “fragility” of de facto relationships compared to the “robustness” of legal marriages requires acceptance of nothing more than the fact that a marriage persists until a court grants a divorce order, whereas a de facto relationship comes to an end as a result of the conduct of the parties.
- The trial judge clearly recognised this, since the entire focus of the relevant part of his judgment was on the conduct of the parties. There is therefore no substance in the second part of this ground.
- Ground 2 therefore fails.
Ground 1 – Various complaints
- Ground 1 contends that the trial judge “erred in finding as a fact that a de facto relationship between the parties existed at the date of conception of [the child]”.
- As will be seen, this ground asserts rather than identifies error, but it is a useful vehicle to dispose of the balance of the appellant’s submissions.
Differentiating between financial cases and parenting cases
- Counsel for the appellant submitted that the jurisprudence relating to de facto relationships has largely developed in the area of financial disputes. He submitted that the “stakes are higher” in parenting cases, and that the jurisprudence therefore needs to be reconsidered in light of the statutory intention evident in the provisions of the Act concerning children. Citing Farnell and Chanbua (2016) FLC 93-700 at , counsel argued that the intention was that only persons who intend to be responsible for the nurture and support of a child born as a result of an artificial conception procedure are entitled to the status of a “parent”. He argued that such an interpretation would advance the best interests of children.
- Counsel for the appellant properly conceded that the decision as to whether a de facto relationship exists could not differ on the same set of facts depending upon whether the dispute was about money or children. Once that proposition is accepted, we consider it follows that the test and its application must be consistent across all types of dispute. In our view, the best interests of the child cannot determine the status of the relationship between the adults involved. Other sections of the Act, in particular s 60CC, come into play to ensure that the substantive orders are in accordance with the child’s best interests.
- For completeness, while we acknowledge that s 60H(1) uses the expression “other intended parent”, it does so only as a drafting device. Properly construed, the section relevantly provides that a child is to be regarded as the child of the de facto partner of the birth mother if the de facto partner consented to the artificial conception procedure. There is no other requirement, although we accept that a party’s intentions in relation to the child would be a matter of potential relevance in considering ss 4AA(2)(f) and (h).
The scope of s 4AA(2)
- Counsel for the appellant submitted that the checklist in s 4AA(2) was directed only to determining whether the parties were “a couple”, rather than to whether they were “a couple living together on a genuine domestic basis”. This argument might be seen as deriving strength from the heading to s 4AA(2), but a heading of a subsection does not form part of an Act, and hence cannot be taken into account: Acts Interpretation Act 1901 (Cth), s 13(2)(d).
- Once that is appreciated, it becomes clear that “those circumstances” mentioned in s 4AA(2) are the “circumstances” in s 4AA(1)(c) which must be taken into account in deciding whether the parties “have a relationship as a couple living together on a genuine domestic basis”. The “circumstances” are those relevant to the composite expression, not just one component of it.
Failure to take sufficient account of the respondent leaving the home
- Counsel for the appellant submitted that the parties did not have a “relationship as a couple living together” on the relevant date because they ceased to live together when the respondent physically moved out of the home.
- Given the unchallenged finding that the parties continued to spend time together in their former home, this submission runs counter to Jonah & White (2012) FLC 93-522, where this court held that a de facto relationship could exist even if the parties lived together for “limited periods”, and that the focus should be on “the nature and quality of the asserted relationship rather than a quantification of time spent together” (at 86,683).
- Counsel for the appellant nevertheless relied on these remarks of Mahoney JA in Hibberson v George (1989) 12 Fam LR 725 at 740 (emphasis added):
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.
- It was submitted that in the present case, the relationship came to an end in March 2011 because the respondent had determined not to “live together” with the appellant, notwithstanding the finding that thereafter “the entire focus of the parties was to explore a reconciliation”.
- The first thing to be said about Hibberson v George is that it was decided under a different statute than the one with which we are concerned. The De Facto Relationships Act 1984 (NSW), which was the subject of consideration inHibberson v George, defined a de facto relationship as being “the relationship of living or having lived together as husband and wife on a bona fide domestic basis although not married to each other”.
- The Act with which we are concerned omits reference to the couple living together as “husband and wife”. More significantly, the NSW Act did not provide a checklist of matters which the court is obliged to take into account in deciding whether a couple were in a de facto relationship. Crucially therefore, the NSW Act did not have an equivalent to s 4AA(3), which provides that no particular finding in relation to any of the matters in the checklist is necessary in finding that a couple lived in such a relationship. Nor did the NSW legislation contain a provision equivalent to s 4AA(5)(b), which provides that a de facto relationship can exist even if one of the parties is living in another de facto relationship. Since one of the matters in in the checklist is “the nature and extent of [the parties’] common residence”, it inexorably follows that it is possible for a couple to be in a de facto relationship without residing in the same home on a full-time basis.
- Quite apart from variations in the statutory context, it should also be observed that Mahoney JA did not suggest that a de facto relationship comes to an end merely because “one party determines not to ‘live together’ with the other”, since he added the words, “and in that sense keeps apart”. In the present case, the parties did not “keep apart”, since the respondent was a “frequent visitor” to the appellant’s home, continued to have sex with her, and remained in regular communication about matters “from the mundane to the highly personal”.
- Care must always be taken in trying to apply the words of a statute by reference to words in the case law, since to the extent they say anything that does not appear in the statute, they can apply an impermissible gloss. As Gleeson CJ observed in the course of argument in Vigolo v Bostin  HCATrans 406:
You do not apply glosses. There is nothing wrong with glosses. That is perhaps the most ancient form of legal exegesis, but the danger is that people will end up applying the gloss instead of applying the test.
- If it were permissible to judge by reference to glosses on the statute, rather than the statute itself, trial judges would have to decide which gloss is more apt, since commonly there is more than one to be found in the case law. For example, in H v P  WASCA 78, Murphy JA (with whom the other members of the Western Australian Court of Appeal agreed) recited the passage above from Hibberson v George and then added his own gloss by saying:
57 It follows that when a party to a de facto relationship determines that they no longer wish to live in a “marriage-like” relationship and conducts their life on that basis, the de facto relationship comes to an end.
- In our view, that gloss might be seen as conflicting with the one in Hibberson v George, since it would arguably allow for the possibility that a relationship continues even when a party has decided not to live with the other party for a time in order to enable them “to decide whether it should continue”.
- Ultimately, however, we consider the real test (since it conforms with the statute as a matter of logic) was that identified by Murphy JA earlier in H v P:
56 … a de facto relationship is inherently terminable at any time, and continues to exist only insofar as the indicia which give the relationship its … character continue to exist.
- Looked at in this way, the task of determining whether a relationship has ended at or before a particular date is precisely the same task that must be performed when determining whether a de facto relationship exists in the first place – i.e. by reference to the indicia laid down in the legislation. Indeed, in the present case it is not appropriate to conceptualise the question as being whether the relationship ended when the respondent left the home but rather whether itsubsisted on the date P was conceived.
- Framing the question in this way pays proper regard to the fact that the Act provides that “no particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship”, and ensures that regard is had to all the circumstances; not just those which changed on the date the relationship allegedly came to an “end”.
- Framing the question in this way also serves to emphasise that the onus of proving that there was a de facto relationship fell on the respondent. It was not for the appellant to prove the relationship had ended: S v B  QCA 449; 1 Qd R 537 at , and –; H v P  WASCA 78 at .
- In determining whether the trial judge erred in determining that the respondent had discharged the onus it is vital to appreciate that these cases all involve value judgments. As French J (as the Chief Justice then was) said in Pelka v Secretary, Department of Family and Community Services  FCA 735; (2006) 151 FCR 546 at , matters of evaluative judgment can be attended “by a degree of uncertainty. Indeed, it may be that different decision-makers on the same facts could quite reasonably come up with different answers”.
- To like effect, it was said in the Federal Court in Lynam v Director-General of Social Security (1983) 52 ALR 128 at 131 (emphasis added):
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.
- Similarly, this court said in Sinclair & Whittaker ( FamCAFC 129; 2013) FLC 93-551, after referring to s 4AA(4):
54. Thus, whether or not a de facto relationship, as defined, exists will depend upon an assessment of all of the circumstances of the relationship, each to be given the weight the court thinks appropriate.
- The decision to be made in cases such as the present does not involve the exercise of discretion, since the court is called upon to make a finding of fact. To that extent, it is arguably only in a loose sense that it is appropriate to speak of “weight” being given to various factors. In this context, we respectfully agree with Murphy JA who said this in H v P when dealing with an appeal about whether a couple lived in a de facto relationship:
- The nature of the decision under challenge is relevant to the court’s approach to the assessment of error by the primary judge. The following observations of Allsop J (as his Honour then was) in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (Drummond and Mansfield JJ agreeing) are relevant to a consideration of the appellate court’s task in a case such as the present , , , :
What is error in any given case depends, of course, not only on the evidence, but also on the nature of the findings or conclusions made by the primary judge. The demonstration of error may not be straight-forward where findings or conclusions involve elements of fact, degree, opinion or judgment …
This is not to elevate ordinary factual findings to the protected position of those based on credit, but it is to make clear, first, the advantages of the trial judge and, secondly, the need for demonstration of error. The inability to identify error may arise in part from the unwillingness of the appeal court to be persuaded that it is in as good a position as the trial judge to deal with the issues, because of the kinds of considerations referred to in  above. Or, it may be that the nature of the issue is one such that (though not a discretion) there cannot be said to be truly one correct answer. In such cases the availability of a different view, indeed even perhaps the preference of the appeal court for a different view, may not be alone sufficient: see Zuvela v Cosmarnan Concrete Pty Ltd  HCA 30; (1996) 71 ALJR 29 at 30–31;  HCA 30; 140 ALR 227 at 229-230. In circumstances where, by the nature of the fact or conclusion, only one view is (at least legally) possible (for example, the proper construction of a statute or a clause in a document, where, although, as often said, minds might differ about such matters of construction, there can be but one correct meaning: see generally Enfield City Corporation v Development Assessment Commission  HCA 5; (2000) 199 CLR 135 at 151–156) the preference of the appeal court for one view would carry with it the conclusion of error. However, other findings and conclusions may be far more easily open to legitimate differences of opinion eg valuation questions, see Fenton Nominees Pty Ltd v Valuer-General (1981) 27 SASR 258, 259–263; 47 LGRA 71 at 73–76.
… 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  FCA 1146; (1995) 56 FCR 557 at 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.
- To like effect, Beaumont and Lee JJ said in Minister for Immigration, Local Government and Ethnic Affairs v Hamsher  FCA 184; (1992) 35 FCR 359 at 369:
the [appeal] 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 so 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)  HCA 9; 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. …
- The fact that the respondent left the joint residence prior to the birth of the child was just one matter to be taken into account. His Honour carefully considered that fact but did not place as much significance on it as the appellant had urged. This does not reveal error by the trial judge, and there is no warrant for us offering a second opinion about the weight to be attributed to that factor.
- As Kirby P said in Golosky v Golosky  NSWCA 111 (with the later approval of Mason CJ, Deane and McHugh JJ in Singer v Berghouse  HCA 40; (1994) 181 CLR 201 at 212), in the context of another type of evaluative judgment:
Unless appellate courts show restraint in disturbing the evaluative determinations of primary decision makers they will inevitably invite appeals to a different evaluation which, objectively speaking, may be no better than the first. Second opinions in such cases would be bought at the cost of diminishing the finality of litigation in a troublesome area and, sometimes at least, with a burden of costs upon the estate which should not be encouraged.
- This part of the appellant’s argument lacks merit.
Failure to make a finding about when the relationship ended
- Counsel for the appellant was critical of the trial judge for not having made a finding about the date the relationship ended. He argued that it would have been germane for his Honour to have considered the nature of the relationship at the point at which the respondent accepted it ended, and then considered what differences there were at the date on which the child was conceived. It was submitted that his Honour erred in not having worked backwards from the admitted end of the relationship to see if ended at an earlier time.
- We do not find these submissions to be persuasive. His Honour’s task was to determine whether the parties were still in a de facto relationship on the date of the child’s conception. That question need not, in our view, be answered by reference to circumstances prevailing at a later time when both parties accepted the relationship had ended. Although Dutney J in S v B at  said it was “necessary to work backwards” to determine whether the relationship ended any earlier than the date on which it had manifestly ended, we do not consider the failure to follow such a process constitutes appealable error.
Failure to have regard to financial factors
- Counsel for the appellant referred in his submissions to the fact that the “parties had terminated their financial interdependence and property arrangements with the respondent paying back to the appellant $30,000 in six instalments of $5,000 … and the respondent removed from the Foxtel account” (footnotes omitted). The appellant argued that this was one of the matters that occurred prior to the conception of the child which demonstrated error on the part of the trial judge in finding that the parties had remained in a de facto relationship.
- The difficulty in advancing this argument is that his Honour specifically recorded these matters at  to , and can therefore be assumed to have taken them into account. It was also the case that the monies were repaid in a short space of time after a property owned by the respondent had been sold (trial transcript, 20 April 2015, p 68). The repayment was therefore as consistent with the fact that the respondent had come into funds to repay the loan as it was with the fact that the respondent had left the relationship.
Failure to have regard to the significance of the text messages
- Counsel for the appellant submitted that the trial judge failed to have “proper regard for the significance of the text messages between the parties”, and in particular it was submitted that the messages gave “no indication of a couple planning to be jointly responsible for the nurture and support of the resulting child”. Thus reliance was placed on the fact that the respondent referred in the messages to her “gift” of her eggs to the appellant. Complaint was made in particular about the fact that the reasons were silent about messages sent 10 days before the child was conceived and which were said to be “hardly evidence” of “a couple living together on a genuine domestic basis”.
- We accept the submission of senior counsel for the respondent that it is not appropriate to “cherry pick” aspects of the evidence to demonstrate error by the trial judge. Instead, as was said in Lynam, and approved by this court inSinclair & Whittaker, “what must be looked at is the composite picture”. We also accept the respondent’s submission that the evidence supports a finding that in the period after the respondent moved out, the parties’ relationship was “up and down”, just as it had been when they were living in the same residence. Accordingly, it does not advance the appellant’s cause to seek to highlight some elements of the relationship after March 2011 which might be seen as suggesting that the parties were not in a de facto relationship, when the respondent can point to other elements which suggest they were.
- In arriving at this conclusion, we have not overlooked the submission that the text messages do not discuss any proposed arrangements for the care of the child. However, that submission seems to ignore the fact that the parties spent a lot of time together in the relevant period, and accordingly matters such as these may have been discussed face to face.
Failure to give proper weight to the evidence of the psychologist
- The appellant submitted that the trial judge failed to give proper weight to the evidence of Ms E concerning the breakdown of the parties’ relationship.
- His Honour dealt with Ms E’s evidence at length from  to  of the reasons, before making the findings at  to  that we recited earlier. Although the appellant sought to persuade us that his Honour failed to pay sufficient regard to Ms E’s actions in seeking advice from colleagues regarding the “lie” told in the donor consent form about the parties being in a de facto relationship, such arguments overlook the advantages the trial judge had in considering all of the evidence and making an assessment of the witness.
- As Gleeson CJ, Gummow and Kirby JJ said in Fox v Percy  HCA 22; (2003) 214 CLR 118 at  (footnotes omitted), an appellate court
must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
- It is also important to observe that Ms E acknowledged that she had “no idea what had happened” between the parties from when she saw them in May 2011 until the child was conceived in July 2011 (trial transcript, 24 August 2015, p 46). On the other hand, his Honour had the advantage of hearing all of the evidence about what had transpired in that critical period.
- For these reasons, we are not persuaded that his Honour erred in his treatment of the evidence of Ms E.