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[2011] WASCA 78
Court of Appeal (WA)
2011-04-04
Pullin JA
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : H -v- P [2011] WASCA 78
Jurisdiction : FAMILY COURT OF WESTERN AUSTRALIA
Citation : H and P [2010] FCWA 12
Family law - Application for de facto property settlement - Whether parties living in a 'marriagelike' relationship - Whether relationship ended prior to the commencement of pt 5A Family Court Act 1997 (WA) - Relevant principles
Family Court Act 1997 (WA), s 205U(2), s 205Z, s 205ZG
AC v CM [2010] QSC 384
Adler v Australian Securities and Investments Commission [2003] NSWCA 131; (2003) 179 FLR 1
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
B and H [2007] FCWA 45
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424
Burns v Grigg [1967] VicRp 113; [1967] VR 871
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Collett v Knox [2010] QSC 132
Corich v The Public Trustee [2006] WASC 16
Dolber v Halverson [2007] NSWCA 335; (2007) 70 NSWLR 151
Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; (2008) 234 CLR 124
Fleming v Hutchinson (1991) 66 ALJR 211
He v Aloe & Co Pty Ltd [2006] VSCA 150
Hibberson v George (1989) 12 Fam LR 725
Hinch v Attorney-General (Vic) [1987] HCA 56; (1987) 164 CLR 15
House v The King [1936] HCA 40; (1936) 55 CLR 499
Leeder v The State of Western Australia [2008] WASCA 192
Lynam v The Director-General of Social Security (1983) 9 Fam LR 305; (1983) 52 ALR 128
M and G [2006] FCWA 1
Marshall v Lockyer [2006] WASCA 58
Mobilio v Balliotis (1998) 3 VR 833
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
MW v The Department of Community Services [2008] HCA 12; (2008) 244 ALR 205
New Zealand v Johnston [2011] FCAFC 2; (2011) 274 ALR 509
Pelka v Secretary, Department of Family and Community Services [2006] FCA 735; (2006) 151 FCR 546
S v B [2004] QCA 449; [2005] 1 Qd R 537
Sharman v Evans [1977] HCA 8; (1977) 138 CLR 563
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
SNF (Australia) Pty Ltd v Jones [2008] WASCA 121
T and C [2010] FCWA 91
Thompson v Public Trustee of New South Wales [2010] NSWSC 1137
Thomson v Badger (1989) 13 Fam LR 559
Williams v Minister Aboriginal Land Rights Act 1983 and The State of New South Wales [2000] NSWCA 255
3 This is an appeal from a decision of Martin J of the Family Court dismissing the appellant's (form 1) application for a de facto property settlement pursuant to s 205Z and s 205ZG of the Family Court Act 1997 (WA) (the Act).
5 The female appellant is 64 years of age and unemployed. She has been in two previous marriages, both ending in divorce. She has a son from each marriage. The male respondent is 67 years of age and is employed by a resources company based in north-western Australia (the respondent's town). He was married in 1963 and has two daughters and one son. His wife died of cancer in 1994.
6 The parties first met during the 1970s, as the respondent's wife and the appellant played in the same sports team, which the respondent coached. The appellant left the respondent's town in about 1978, and the parties did not see each other again until the appellant attended the respondent's wife's funeral. The parties did not meet again until about August 1995, when they both attended a barbecue to celebrate a family member's birthday. The parties then started to spend time together.
7 In December 1995, the appellant was involved in an accident at work, as a result of which she sustained an injury to her wrist.
8 Shortly after Christmas 1995, the parties travelled to Melbourne together, funded by the respondent, and in March 1996, the respondent travelled to Perth, where the appellant resided. It was around this time, in late 1995 to early 1996, that the parties commenced a sexual relationship.
9 In April 1996, the appellant suffered another injury at work and lodged a workers' compensation claim.
10 Around Christmas 1996, the appellant moved to the respondent's town to stay with the respondent. The trial judge sets out the parties' respective evidence concerning the circumstances of the move at [11] and [12] of the reasons as follows:
At Christmas 1996, the applicant travelled to [the respondent's town] to commence staying with the respondent. The applicant's evidence in her affidavit dated 5 March 2009 was:
(a) I was still undergoing treatment for my wrist and was concerned as to the lack of qualified doctors in [the respondent's town];
(b) I was still dealing with the workers' compensation matter which required me to attend on a lawyer and various specialists; and
(c) lack of income as a result of my injury.
The respondent's evidence, in his affidavit filed 15 July 2009, was:
11 Over the period from December 1996 until April 2008, the appellant spent periods of time living with the respondent in the respondent's town, and the parties also stayed together for less substantial periods of time at the appellant's Homeswest property in Perth, which she had rented since 1986. In the period 1996 to 2000, and again from 2006, the respondent's adult son was also living with the respondent in the respondent's town.
12 At the commencement of the relationship, the respondent was renting his property from his employer for $25 per week. He also owned an investment property in a suburb south of Perth.
13 In August 2007, the respondent purchased his property from his employer for $43,000, pursuant to a special scheme offered to employees. The respondent paid all outgoings on the home and never asked the appellant to contribute.
14 When the appellant was living in the respondent's town, the respondent would work 12-hour shifts, usually two days and two nights a week. The appellant worked part-time in the respondent's town at times and also did shopping, contributed to the household duties, and undertook voluntary work.
15 Both parties were actively engaged in playing bowls. In 1998, the appellant became president of a local bowling club in the respondent's town, and continued in 1999 and 2000. Whenever she was in the respondent's town, she played bowls at every possible opportunity. The parties played bowls together on the weekends (when the respondent was not working) and also attended social events together at the club. Both parties had their own circle of friends in the respondent's town, as well as mutual friends. The appellant is also a very active member of a Perth bowls club. When visiting Perth, the respondent would play bowls at the appellant's local bowls club as a guest, and would regularly go to Friday social nights with the appellant.
16 The appellant would travel from the respondent's town to Perth to attend medical and legal appointments in connection with her ongoing workers' compensation claim, and to visit her family. The respondent would join her in Perth, work permitting, often joining her for bowls tournaments. The respondent had accrued considerable annual leave, having taken only some of his long service leave, so he was able to take lengthy periods off work. The parties would also regularly go to the races together. If not in the same town, for much of the relationship, the parties would speak on the telephone daily. When staying together, the parties shared a bed and engaged in a sexual relationship, although it appears as though the sexual relationship was very limited in the last few years.
17 In March 2000, the respondent was diagnosed with cancer. He underwent treatment in April and May of that year, and spent several months in Perth prior to, during and after, his treatment. During this time, the parties lived at the appellant's property, and the appellant looked after the respondent, caring for him both physically and emotionally. The appellant drove the respondent to all of his radiotherapy appointments.
18 The appellant's workers' compensation payments ceased in 2000, when she was paid out a lump sum. Upon receiving legal advice, in March 2000, she commenced proceedings for a motor vehicle personal injuries claim, arising from the incident in December 1995.
19 The appellant's Homeswest home in Perth, in which her son continued to live, was to be demolished in 2000. Homeswest offered alternative accommodation at a different address, and the appellant helped her son move in, in September 2000. However, the appellant's furniture remained in the new home.
20 In May 2001, the respondent purchased a two-bedroom unit close to the Perth CBD for $179,000. The unit was purchased in the respondent's name only. The respondent's evidence was, and the learned judge appears to have accepted, that the property was purchased as an investment, and as security for the respondent's children.
21 When she was in Perth, the appellant assisted the respondent in looking after his two investment properties by undertaking inspections, meeting tradespeople and obtaining quotes for maintenance. However, the respondent would usually compensate her for this.
22 In January 2002, the appellant applied for a pension through Centrelink, as she was no longer able to afford to support herself without financial assistance. The respondent was not prepared to support the appellant and told her that she would have to support herself.
23 In 2004, the appellant was involved in a District Court trial for the personal injury claim in relation to the injury to her wrist sustained in the accident in December 1995. The respondent supported her in the proceedings, giving evidence on her behalf. The trial judge referred to him as the appellant's 'partner from time to time'. Judgment was delivered on 30 June 2004, and it was ordered that the appellant be paid the sum of $12,450. After further negotiations, a further $5,000 was offered, which the appellant accepted. The appellant owed $10,000 to her brother for legal expenses, and paid a further $5,000 to the respondent, who had also paid some of her legal expenses.
24 In 2005, the parties spent comparatively little time together (approximately 13 weeks). The appellant remained in Perth for much of that year to play bowls. The respondent did join her in Perth on several occasions.
25 In 2006, the respondent's adult son moved back into the respondent's home. He had lived there from 1996 to 2000, and he did not get on well with the appellant.
26 The parties went on a cruise together in February 2008 and photos were in evidence of the parties appearing to be having a good time.
27 However, the appellant and the respondent's son had a major argument in April 2008, which led to the relationship coming to an end. The appellant applied for a restraining order against the respondent's son, which was granted in October 2008. At the hearing, the respondent did not give correct evidence when he underrated his relationship to the appellant as being that he had stayed in the relationship because she was a friend of his wife. The presiding magistrate accepted that the appellant was a more credible witness than the respondent.
28 On 14 August 2008, the appellant lodged her form 1 application. In 'Part A' of the form, the appellant marked the box indicating that she was seeking 'Financial' orders, being 'property and/or maintenance' orders.
29 On 2 October 2008, the appellant received a letter from Centrelink requesting repayment of a debt in the sum of $67,048 which had been paid to the appellant. The appellant, in her application made in 2002, had stated that she was not in a de facto relationship. People in a de facto relationship are not eligible to receive certain benefits, including a widow's allowance, which it appears the appellant was receiving for some period of time (see s 4(2)(b), s 408BA(e)(i) of the Social Security Act 1991 (Cth)).
30 In May 2008, following her separation from the respondent, the appellant advised Centrelink that, in fact, she had been in a de facto relationship. It is to be presumed that the 2 October 2008 Centrelink letter claiming repayment was issued as a consequence of the appellant's statement in May 2008. There is no suggestion that at the time of the appellant's initial application in 2002, or at any other time, Centrelink undertook any kind of formal assessment of whether or not the appellant was in a de facto relationship for the purposes of the social securities legislation. It does not appear as though the judge considered the appellant's statements to Centrelink concerning her relationship status to be relevant in determining whether or not the parties were, in fact, in a de facto relationship at the relevant time.
31 The learned trial judge's findings as to the credibility of the parties are set out at [74] - [77] of the reasons. The trial judge found, in effect, that both parties were not entirely credible witnesses, and that both had been prepared to make assertions, which they now say were not correct, for financial advantage. Her Honour's findings as to credibility and its impact on the conclusions drawn from the evidence as a whole were summed up in [77], where she said:
When it came to the parties' evidence at trial, both parties were polarised in their positions and clearly were prepared to exaggerate or underrate any matter which would support or denigrate their cases. On balance, I regard the applicant as being more credible as to her version of what actually occurred, for example in relation to the parties' engagement. I considered it did the respondent no credit, the extent to which he was, I consider in some respects, unfairly, prepared to down play the nature of his relationship with the respondent. In most respects the evidence is not actually disputed to a great extent, it being more a question of degree - the issue is the legal ramifications of the relevant facts. (emphasis added)
32 With specific reference to the indicative factors of a de facto relationship set out in s 13A(2) of the Interpretation Act 1984 (WA), the learned trial judge made, in effect, the following findings with respect to the parties' relationship:
(a) the relationship (however it may be characterised) was one which commenced in 1995 and ended in April 2008. Over that period the appellant spent almost all of each year up to 2001 in the respondent's town, but those periods reduced in subsequent years, with the exception of one particular year, to very roughly half of each year (reasons [81] and [86] - the proper construction of [86] of the judge's reasons is the subject of more detailed consideration later in these reasons);
(b) although the parties shared the same bedroom, whether living in Perth or the respondent's town, there was never a time when the parties combined their efforts to establish one residence, and the parties maintained separate properties throughout the relationship (reasons [87], [89]);
(c) when the applicant was living with the respondent in the respondent's town, she pursued her own life and came and went from the respondent's home as she wished. However, this did not mean that the parties were any less a 'couple' (reasons [90]);
(d) the parties had a sexual relationship, albeit limited in the last few years, but there was no suggestion that either had been involved in any other relationship during the period from 1995 to 2008 (reasons [92] and [137]);
(e) although there was some financial interrelationship, including, to a degree, mutual contributions to general daily expenses and the respondent providing some financial assistance to the appellant in connection with her workers' compensation claim, the parties mainly kept their finances separate (reasons [95], [100], [102]);
(f) the respondent did not support the appellant following the cessation of workers' compensation payments and she had to support herself (reasons [95], [97]);
(g) the parties did not purchase any real property together and neither party made any significant contribution towards the other's property (reasons [106] and [108]);
(h) the parties discussed an engagement, and at one point agreed to become engaged, but not necessarily firm marriage plans. It is unlikely that the parties did not discuss spending some time in retirement together. The parties could have made a commitment to spend more time together and combine their resources, but they did not (reasons [109], [111], [116], [118]);
(i) there were no children of the relationship (reasons [119]);
(j) the appellant was recorded as the respondent's 'de facto wife' in various documents, including his private health insurance policy, his employer-paid travel assistance policy, tax return forms and some health records. The appellant has referred to herself in public documents as 'single' or 'divorced' where it suits her. Neither party made a Will providing for the other as a beneficiary (reasons [122] - [127]);
(k) the parties were regarded as partners and a couple by others and they presented in this way. The parties were invited to and attended many family functions, the respondent's work functions, and bowls functions together as a couple, and took a number of holidays together, including two cruises (reasons [121], [128] - [131]);
(l) the relationship that the parties shared provided each of them with support, companionship and a romantic relationship when they were in each other's company, but in several significant aspects of life, the parties pursued separate and independent lives (reasons [134]).
33 Her Honour expressed her conclusions at [136] - [146] [sic [144]]. In substance, her Honour concluded that the parties shared a relationship of good friendship and general support over a number of years. They had a shared life in the early stages of the relationship which, at that point in time, may have been 'marriage like' in the relevant sense. However, as time passed their mutual commitment to a shared life together diminished, and in many respects the parties retained separate lives. The judge noted a number of relevant considerations, such as the continued maintenance of their own separate properties, that the respondent was not prepared to support the appellant financially, and that they never acquired any property together. Her Honour concluded, in effect, that the parties' degree of mutual commitment diminished to the point whereby, taking all of the relevant circumstances into account, it could not be said that the parties were in a de facto relationship as at, or subsequent to, the relevant date, namely 1 December 2002.
34 The applicant's form 1 application was made pursuant to pt 5A of the Act, which deals with de facto relationships. The term 'de facto relationship' is defined in s 13A of the Interpretation Act 1984 (WA) which provides:
13A. De facto relationship and de facto partner, references to
(1) A reference in a written law to a de facto relationship shall be construed as a reference to a relationship (other than a legal marriage) between 2 persons who live together in a marriage-like relationship.
(2) The following factors are indicators of whether or not a de facto relationship exists between 2 persons, but are not essential -
(a) the length of the relationship between them;
(b) whether the 2 persons have resided together;
(c) the nature and extent of common residence;
(d) whether there is, or has been, a sexual relationship between them;
(e) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(f) the ownership, use and acquisition of their property (including property they own individually);
(g) the degree of mutual commitment by them to a shared life;
(h) whether they care for and support children;
(i) the reputation, and public aspects, of the relationship between them.
(a) the persons are different sexes or the same sex; or
(b) either of the persons is legally married to someone else or in another de facto relationship.
(4) A reference in a written law to a de facto partner shall be construed as a reference to a person who lives, or where the context requires, has lived, in a de facto relationship.
(5) The de facto partner of a person (the first person) is the person who lives, or lived, in the de facto relationship with the first person.
35 By s 205U(2) of the Act, pt 5A of the Act 'does not apply to a de facto relationship that ended before the commencement of this Part', relevantly, 1 December 2002.
36 Provided that the court is satisfied that the de facto relationship is one to which pt 5A of the Act applies, s 205Z sets out the circumstances in which a court may make an order in relation to a de facto relationship. Section 205Z provides:
205Z. Where court may make order under this Division
(1) A court may make an order in relation to a de facto relationship only if satisfied -
(a) there has been a de facto relationship between the partners for at least 2 years;
(b) there is a child of the de facto relationship who has not yet attained the age of 18 years and failure to make the order would result in serious injustice to the partner caring or responsible for the child; or
(c) the de facto partner who applies for the order made substantial contributions of a kind mentioned in section 205ZG(4)(a), (b) or (c) and failure to make the order would result in serious injustice to the partner.
(2) In deciding whether there has been a de facto relationship between the partners for at least 2 years, the court must consider whether there was any break in the continuity of the relationship and, if so, the length of the break and the extent of the breakdown in the relationship.
(3) Subsection (2) does not limit the matters the court may consider.
37 By s 205ZA, the court may make binding declarations or orders as between de facto partners with respect to existing title or rights in respect of property.
38 Section 205ZG gives the court the power to make orders that alter the de facto parties' interests in property.
39 By s 205ZB, a de facto partner has a period of two years after the relationship has ended within which to make an application to the court for property settlement orders. However, the court may grant a de facto partner leave to apply after the two-year period if satisfied that hardship would be caused if leave were not granted.
40 By s 205ZJ, a court must, as far as practicable, make such orders as will finally determine the financial relationships between de facto partners who are no longer in a de facto relationship and avoid further proceedings between them.
41 The appellant relied on six grounds of appeal, as follows:
Ground 1
The learned Trial Judge acted on a wrong principle (error of law) by not determining if the parties were in a defacto relationship at any time and if so when that relationship ended; alternatively
Ground 2
The learned Trial Judge erred in law and fact in finding that any defacto relationship has been terminated or destroyed by the circumstances of the case and ought to have found that once a defacto relationship existed it could not be so terminated or destroyed as a matter of law and nor was it so terminated or destroyed as a matter of fact.
Ground 3
Should the learned Trial Judge have determined as a matter of fact that that relationship had ended by December 2002 there were insufficient reasons for that finding and or sufficient findings on the record;
Ground 4
In finding that the parties time spent apart was determinant of the existence of a defacto relationship failed to take into account a relevant matter namely the reasons for spending time apart nor made findings in respect thereof
Ground 5
The learned Trial Judge in finding the Appellants application for a Centrelink pension was significant failed to take into account or make findings in the circumstances of the financial inter relationship of the parties both before and after the application for that pension; and
Ground 6
Failed to give adequate reasons for the significance of the pension to determining the nature of the relationship between the parties.
42 An appeal lies to this court pursuant to s 211(3), read with s 36(4a) of the Act. There has been no debate about whether, by virtue of s 211(3), the appeal is in the nature of an appeal in the strict sense, or by way of rehearing: see Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 [12] - [13], and cf s 211(2)(a) of the Act. In either case, the appellant must ordinarily demonstrate error on the part of the primary decision-maker: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [12] - [14]; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 [20] - [22], [25]; New Zealand v Johnston [2011] FCAFC 2; (2011) 274 ALR 509 [26]. The appellant must demonstrate that the order below is the result of some legal, factual or discretionary error: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23].
43 In this appeal, most of the challenges made by the appellant are to the inferences drawn, or characterisations made, by the trial judge. In Williams v Minister Aboriginal Land Rights Act 1983 and The State of New South Wales [2000] NSWCA 255 [60] Heydon JA (Spigelman CJ & Sheller JA agreeing) said, in relation to challenges of that kind, that an appeal court:
... is in the same position as that ascribed to the Full Federal Court in Minister for Immigration, Local Government and Ethnic Affairs v Hamsher [1992] FCA 184; (1992) 35 FCR 359 at 369 per Beaumont and Lee JJ:
'... the court is not obliged to proceed to make new findings of fact on all relevant issues and discharge the judgment appealed from if those findings differ from those of the trial judge and do not support the judgment. The court must be satisfied that the judgment of the trial judge is erroneous and it may be so satisfied if it reaches the conclusion that the trial judge failed to draw inferences that should have been drawn from the facts established by the evidence. The court is unlikely to be satisfied if all that is shown is that the trial judge made a choice between competing inferences, being a choice the court may not have been inclined to make but not a choice the trial judge should not have made. Where the majority judgment in Warren v Coombes [(1979) [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. (See also Edwards v Noble [1971] HCA 54; (1971) 125 CLR 296, per Barwick CJ (at 304), per Menzies J (at 308-309) and per Walsh J (at 318-319).)'
44 Heydon JA's observations have been cited with approval in Adler v Australian Securities and Investments Commission [2003] NSWCA 131; (2003) 179 FLR 1 [17]; Dolber v Halverson [2007] NSWCA 335; (2007) 70 NSWLR 151, 164 - 165; and Leeder v The State of Western Australia [2008] WASCA 192 [85].
45 Those principles are to be applied in this case in the context of the primary judge's determination that the appellant and the respondent were not in a 'marriage-like' relationship at the relevant time for the purposes of the Act. A decision of that kind, having regard to the factors in s 13A of the Interpretation Act 1984 (WA), may be said to involve 'elements of fact, degree and value judgment', and draws upon the judge's experience and familiarity with the nature of the subject matter: see (albeit in the context of other legislation involving an evaluative determination) Fleming v Hutchinson (1991) 66 ALJR 211.
46 In Pelka v Secretary, Department of Family and Community Services [2006] FCA 735; (2006) 151 FCR 546, French J (as his Honour then was) had cause to consider the term 'marriage-like' appearing in s 4(2) of the Social Security Act 1991 (Cth). His Honour observed (556):
The judgment to be made is difficult and, once out of the range of obvious cases falling within the core concept of 'marriage-like', will 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.
47 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 [24], [25], [28], [29]:
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 [24] 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 [1996] HCA 30; (1996) 71 ALJR 29 at 30-31; [1996] 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 [2000] HCA 5; (2000) 199 CLR 135, 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 [1995] FCA 1146; (1995) 56 FCR 557, 573, 'giving full weight' to the view appealed from should not be taken too far. The appeal court must come to the view that the trial judge was wrong in order to interfere. Even if the question is one of impression or judgment, a sufficiently clear difference of opinion may necessitate that conclusion.
48 Although the making of an evaluative determination in the nature of the decision under appeal may arguably be likened to the exercise of a discretion in, for example, the assessment of damages (as to which see Sharman v Evans [1977] HCA 8; (1977) 138 CLR 563, 565 (Barwick CJ)), it is, strictly speaking, a question of objective fact to be determined in all of the circumstances: Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 (211), Lynam v The Director-General of Social Security (1983) 9 Fam LR 305; (1983) 52 ALR 128, 131 (Fitzgerald J). See also Hinch v Attorney-General (Vic) [1987] HCA 56; (1987) 164 CLR 15, 43 - 44 (Wilson J). As the point was not argued in this appeal, it is unnecessary to 'go further' and consider whether the instant decision is sufficiently analogous to a discretionary decision so as to attract the principles laid down in House v The King [1936] HCA 40; (1936) 55 CLR 499: cf Mobilio v Balliotis (1998) 3 VR 833, 837 (Brooking JA); Singer v Berghouse (210 - 212, 226); Dwyer v Calco Timbers Pty Ltd [2008] HCA 13 [37] - [40]; [2008] HCA 13; (2008) 234 CLR 124, 138 - 139.
49 There are a number of recent decisions of this court which discuss the principles to be applied when considering the adequacy of a trial judge's reasons: Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273; Marshall v Lockyer [2006] WASCA 58; SNF (Australia) Pty Ltd v Jones [2008] WASCA 121. For present purposes, I would note the following matters.
50 Whether the content of reasons is adequate will depend on the circumstances of the case and the matters that arose for the judge's consideration. The court will look at the reasons as a whole and, if necessary, in the context of the evidence, to determine if they give the sense of what was intended in a way that achieves their required function and purpose: SNF v Jones [32].
51 In Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, 443 - 444, Meagher JA said:
No mechanical formula can be given in determining what reasons are required. However, there are three fundamental elements of a statement of reasons, which it is useful to consider. First, a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. ... Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to.
Secondly, a judge should set out any material findings of fact and any conclusions or ultimate findings of fact reached. ... Where one set of evidence is accepted over a conflicting set of significant evidence, the trial judge should set out his findings as to how he comes to accept the one over the other. But that is not to say that a judge must make explicit findings on each disputed piece of evidence, especially if the inference as to what is found is appropriately clear ... Further, it may not be necessary to make findings on every argument or destroy every submission, particularly where the arguments advanced are numerous and of varying significance ...
Thirdly, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. Those reasons or the process of reasoning should be understandable and preferably logical as well.
52 If reasons are found to be inadequate, it does not follow that there is necessarily an appealable error; an appeal court will only interfere when no reasons have been given in circumstances in which they were required, or when the inadequacy of the reasons is such as to give rise to a miscarriage of justice. Further, where an appealable error arises from inadequate reasons, it does not necessarily follow that a new trial is required. An appeal court is entitled to consider the matter and, if it can do so (eg, where only one conclusion is reasonably open on the available evidence), may decide the matter itself: Mount Lawley [29].
53 Unlike a legal marriage, there is no formality surrounding the creation and cessation of a de facto relationship. It can thus often be difficult to determine whether or not such a relationship exists. The term 'marriage-like relationship' is not defined in the legislation, leaving the question to the judge who, whilst reflecting on the nature of marriage generally, is required by the legislation to have regard to the factors in s 13A(2) of the Interpretation Act 1984: see T and C [2010] FCWA 91 [347].
54 In T and C, Thackray CJ noted the observations of Gleeson CJ concerning the concept of de facto marriage in the case of MW v The Department of Community Services [2008] HCA 12; (2008) 244 ALR 205. In that case, Gleeson CJ made the following observations which provide some guidance as to the interpretation of the expression 'marriage-like relationship' (209 - 212):
Finn J was correct to stress the difference between living together and living together 'as a couple in a relationship in the nature of marriage or civil union'. The relationship between two people who live together, even though it is a sexual relationship, may, or may not, be a relationship in the nature of marriage or civil union. One consequence of relationships of the former kind becoming commonplace is that it may now be more difficult, rather than easier, to infer that they have the nature of marriage or civil union, at least where the care and upbringing of children are not involved.
...
Marriage, in Australia and New Zealand, involves legal requirements of formality, publicity and exclusivity. A person may be a party to only one marriage at a time. De facto relationships, on the other hand, do not involve these elements. They are entered into, and may be dissolved, informally. ... It goes without saying that there is no mandatory public registration of sexual relationships, even if they involve cohabitation. De facto relationships may co-exist with the marriage of one or both parties and, at least in some circumstances, people may be parties to multiple de facto relationships. Yet the law to be applied in this case acknowledges that some are, and some are not, in the nature of marriage. How is the difference to be determined? No single and comprehensive answer to that question can be given, but there is one test that is applicable to the present case.
In Stack v Dowden, Baroness Hale of Richmond said:
'Cohabitation comes in many different shapes and sizes. People embarking on their first serious relationship more commonly cohabit than marry. Many of these relationships may be quite short-lived and childless. But most people these days cohabit before marriage ... So many couples are cohabiting with a view to marriage at some later date - as long ago as 1998 the British Household Panel Survey found that 75% of current cohabitants expected to marry, although only a third had firm plans: John Ermisch, Personal Relationships and Marriage Expectations (2000) Working Papers of the Institute of Social and Economic Research: Paper 2000-27. Cohabitation is much more likely to end in separation than is marriage, and cohabitations which end in separation tend to last for a shorter time than marriages which end in divorce. But increasing numbers of couples cohabit for long periods without marrying and their reasons for doing so vary from conscious rejection of marriage as a legal institution to regarding themselves 'as good as married' anyway: Law Commission, Consultation Paper No 179, Part 2, para 2.45.'
There is no reason to doubt that the same is generally true of Australia and New Zealand. It may be added that, in Australia, what often prompts cohabiting couples to marry is a decision to have a child, and to do so within the context of a marriage. People often refer to this as 'starting a family'. The cohabiting parties to many relationships, especially first relationships of the 'short-lived and childless' kind, may be surprised to be told that they are involved in a relationship in the nature of marriage or civil union. They may intend no such thing. The same may apply to some people in longer-term cohabitation who have chosen not to marry. It is the common intention of the parties as to what their relationship is to be, and to involve, and as to their respective roles and responsibilities, that primarily determines the nature of that relationship. The intention need not be formed in terms of legal status: to some people that is important; to others it is a matter of indifference ... The intention may be expressed, or it may be implied. What is relevant is their intention as to matters that are characteristic of a marriage or a civil union, but that do not depend upon the formal legal status thus acquired. To describe a relationship as being in the nature of marriage implies a view about the nature of marriage. The same applies to a civil union. It is unnecessary, for present purposes, to attempt a comprehensive account of the features of a relationship that might justify such a description. Plainly, 'living together' is not enough.
In Magill v Magill, and earlier in Russell v Russell, reference was made to the historical role of the institution of marriage as a means of involving males in the nurture and protection of their offspring, and to the importance of the structure of marriage and the family in sustaining responsibility for, and obligations towards, children. There is a wide range of human behaviour across the spectrum between a sexual encounter and a marriage or civil union. It includes relationships which could never be described as being in the nature of marriage or civil union. Nevertheless, when a sexual union results in the birth of a child, cohabitation between the parties to the union is no longer a matter of purely personal convenience or satisfaction. The interests of a third party have intervened. Traditional concepts of marriage and the family as institutions for the protection of children, and modern concepts of shared parental responsibilities even in the absence of a formal union, may come into play in characterising the relationship. The present case provides an example.
55 As Gleeson CJ's observations indicate, although there may be a number of factors which suggest that a relationship is 'in the nature of marriage' or 'marriage-like', in the end, what is required is an overall assessment of the facts and of all the relevant elements of the relationship. In the Federal Court case of Lynam v The Director-General of Social Security, the court considered whether a man and a woman were living together 'as husband and wife on a bona fide domestic basis'. Fitzgerald J said (131):
Each element of a relationship draws its colour and its significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. 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.
See also Corich v The Public Trustee [2006] WASC 16 and T and C [353].
56 Just as it is difficult to discern when a relationship between two people can properly be said to be 'marriage-like', it can be equally difficult to determine when such a relationship comes to an end. In this respect, there is an important distinction to be drawn between a de facto relationship and a legal marriage. Unlike a legal marriage, which continues despite the absence of any 'marriage-like' characteristics in the relationship, until it is formally dissolved by legal process, a de facto relationship is inherently terminable at any time, and continues to exist only insofar as the indicia which give the relationship its 'marriage-like' character continue to exist. In Hibberson v George (1989) 12 Fam LR 725, 740, Mahoney JA spoke of the distinction between a legal marriage and a de facto relationship, where he said:
There is, of course, more to the relevant relationship than living in the same house. But there is, I think, a significant distinction between the relationship of marriage and the instant relationship. The relationship of marriage, being based in law, continues notwithstanding that all of the things for which it was created have ceased. Parties will live in the relationship of marriage notwithstanding that they are separated, without children, and without the exchange of the incidents which the relationship normally involves. The essence of the present relationship lies, not in law, but in a de facto situation. I do not mean by this that cohabitation is essential to its continuance: holidays and the like show this. But where one party determines not to 'live together' with the other and in that sense keeps apart, the relationship ceases, even though it be merely, as it was suggested in the present case, to enable the one party or the other to decide whether it should continue.
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.
58 Unlike a legal marriage, which is presumed to continue until a party can prove that the marriage has broken down for the purpose of legally dissolving the marriage, in the case of a de facto relationship, it is the party asserting the continuance of the de facto relationship that must positively prove the existence of its defining characteristics, rather than being required to prove the negatives: S v B [2004] QCA 449; [2005] 1 Qd R 537 [48] - [50]. See also M and G [2006] FCWA 1 [10] - [15] and T and C [357] - [360].
59 This ground concerns the proper operation of s 205U(2) of the Act. The appellant contends that, where an application is made under pt 5A of the Act, and it is alleged that the relevant de facto relationship commenced prior to 1 December 2002, on a proper construction of s 205U(2), the primary judge is required to determine whether or not there was, in fact, a de facto relationship prior to 1 December 2002, and, if so, when it started and when it ended. It is said that the learned judge erred in failing to adopt such an approach, and in focussing upon whether or not the parties had lived in a de facto relationship on and since 1 December 2002. At the hearing, counsel for the appellant was not able to refer the court to any authority supporting the proposition contended for.
60 In S v B, the court was concerned with the operation of s 257 of the Property Law Act 1974 (Qld) which is, for all intents and purposes, identical to s 205U. All three judges in that case approached the question by considering whether the applicant had proven the existence of the requisite relationship as at the relevant date. McPherson JA said [2]:
There is a temptation which must be resisted in cases like this to act on or apply, some kind of presumption or inference of continuance by assuming that, if the relevant relationship is shown to have existed at a particular date, it continued thereafter. But the effect of s 257 of the Property Law Act 1974 is to extend the operation of pt 19 of the Act, which commenced operation on 21 December 1999, only to a relationship that existed at that date by excluding from the ambit of pt 19, a relationship that ended before that date. The used of the word 'ended' in s 257 tends to obscure the fact that the onus rested on the [applicant] to prove that the requisite relationship existed at that date. If she did not succeed in doing so, then there was no relationship to which pt 19 applied or was capable of applying.
See also the judgments of Williams JA [5] and Dutney J [51]. McPherson JA's comments have been relied upon in a number of subsequent cases. See, for example, Thompson v Public Trustee of New South Wales [2010] NSWSC 1137 [84]; AC v CM [2010] QSC 384 [10]; and Collett v Knox [2010] QSC 132 [116].
61 I respectfully agree with the approach adopted by McPherson JA and the other judges in that case. In my view, as a matter of construction, the words of s 205U(2) do not require the judge to adopt the approach propounded by the appellant, although depending on the circumstances, a judge may consider that to be a helpful approach in determining the facts. In order to satisfy s 205U(2), the applicant is required positively to prove the existence of a de facto relationship as at or subsequent to 1 December 2002. The ultimate question for the judge is, therefore, whether or not the applicant has proven the existence of a relationship of the required standard as at that date. There was no dispute that the applicant bears that onus.
62 At the hearing, counsel for the appellant was asked whether he accepted that McPherson JA's approach in S v B is the correct approach to apply to s 205U(2). Counsel accepted that it was the correct approach.
64 There are, in effect, two limbs to ground 2. It is alleged that the judge erred in law and fact in finding that any de facto relationship had been 'terminated or destroyed' by the circumstances of the case as:
(1) once a de facto relationship exists, it cannot be so 'terminated or destroyed' as a matter of law; and
(2) it was not so 'terminated or destroyed' as a matter of fact.
65 It is unclear why the appellant chose the words 'terminated or destroyed' as those words do not appear in her Honour's judgment. Nevertheless, it became apparent at the hearing that the second limb of the ground was, in substance, a replication of the error alleged in ground 4 of the grounds (which is dealt with below).
66 As to the first limb of the ground, it is unclear precisely what error is being alleged and the appellant spent minimal time dealing with the ground at the hearing. The appellant's written submissions provide some assistance, although it is unclear which paragraphs of the submissions relate to which grounds of appeal.
67 The effect of the appellant's submissions is, as best I understand it, that once a de facto relationship is found to exist, it will continue to exist, notwithstanding that many of the aspects that contributed to the formation of the relationship may have disappeared. In this regard, the appellant says that a de facto relationship is, in substance, identical to a legal marriage, and she refers to the notion of a 'consortium vitae' (Lat - 'The Partnership of Life'). Again, as best I understand it, the appellant submits that the judge erred insofar as her Honour found that even if the parties had been in a de facto relationship in the 1990s, the relationship deteriorated over time and it was apparent that it had ceased by December 2002. It is said that in order to find that the relationship had come to an end, the trial judge was obliged to identify the point at which it could be shown that there had been a severance of the relationship. The proposition is that once established, a de facto relationship is presumed to continue unless and until it is established that there has been a severance of the relationship. I do not accept that submission.
68 I have already referred to a number of cases that discuss the differences between a legal marriage and a de facto relationship. De facto relationships lack the formality of a legal marriage. They may be created informally and they may come to an end informally. There can be no basis for a presumption of continuance. In a de facto relationship, it is the party asserting the existence of the relationship at any point in time who must positively prove the existence of the identifying characteristics. To start from the proposition that a de facto relationship continues until it can be shown that it has been severed is to deflect attention from the correct approach. The deterioration of a relationship or a change in circumstances will often be relevant to an assessment of whether or not two people are in a de facto relationship at any point in time, but that evidentiary consideration does not rest upon any presumption of continuance.
69 In any event, the ground assumes that the judge found that there had been a de facto relationship which subsequently terminated. That is incorrect. Her Honour found that it was 'possible that the parties could have been' in a de facto relationship in the 1990s ([139]), not that they were in fact in such a relationship at that time. The crucial finding is at [146] [sic [144]].
70 The appellant has not identified error, and I would dismiss ground 2.
71 At the hearing, counsel for the appellant said that grounds 3 and 4 can essentially be read together as one ground, which, according to counsel, is the appellant's 'crucial ground'. The essence of the ground, as it evolved at the hearing, was, in effect, that the judge erred in treating the time that the parties spent apart as the determinative factor in coming to the conclusion that any de facto relationship between the parties had ended prior to 1 December 2002, and failed to take into account other relevant factors. The appellant says that as spending time apart is not necessarily fatal to the continuing existence of a de facto relationship, the judge should have considered the reasons why the parties spent less time together over time. Further, the appellant says that the judge should have had regard to the following findings, which are set out in the appellant's written submissions (par 24):
(i) in a [health] insurance policy as the respondents defacto wife (reasons para 122)
(ii) on the joint Medicare card (reasons para 122)
(iii) on the respondents employer sponsored travel plan as his de facto wife travel plan between 1999 and 2007
(iv) as a spouse on the respondents tax return from 2002 to 2005 (reasons para 125)
(v) on some of the respondents health records (reasons para 125).
72 As a preliminary observation, the appellant's submission with respect to the above findings is that the judge, having made the findings with reference to the relevant statutory criteria, then proceeded to ignore them in reaching an assessment of whether the parties were in a 'marriage-like' relationship at the requisite time. That submission cannot be accepted. The making of the findings in accordance with the statutory criteria itself indicates that the judge had regard to these matters in her overall characterisation of the nature of the relationship. Having made those findings, it was not necessary for her Honour to refer to them again in the conclusion.
73 It is accurate to say that spending time apart is not necessarily fatal to the existence of a de facto relationship; common residence is only one of the factors in s 13A(2) Interpretation Act 1984 and, accordingly, it is open to a judge to conclude in appropriate circumstances that, despite physical separation, there are sufficient other factors present to indicate the existence of a de facto relationship: see M and G [2006] FCWA 1 [14] - [15]; B and H [2007] FCWA 45 [19]; Thomson v Badger (1989) 13 Fam LR 559, 562 - 563. In the end, whether or not two parties are in a de facto relationship is a question of fact that will turn on an assessment of all of the elements of the relationship, and no one factor, such as whether the parties are physically separate at the relevant time, will be determinative: see T and C [353]. Nevertheless, time spent apart is a factor that the judge properly took into account.
74 However, the appellant says that the judge treated the time that the parties spent apart as 'seemingly determinative'. That submission cannot be sustained. Her Honour commenced her concluding remarks ([136]) with the following three statements:
The applicant has the burden of proof that the parties were in a de facto relationship.
Counsel referred to various legal authorities, but each case really turns on its own facts.
It is important to consider the totality of the evidence.
75 As indicated earlier, the factors to which the appellant refers in [71] above were clearly considered by her Honour. The reduction in time spent together was one of a number of factors referred to in the judge's concluding remarks at [137] - [143], which remarks must be read in light of her Honour's statement in [136] and the remainder of the reasons. Further, it is apparent that her Honour did consider the reasons for the parties spending time apart, and expressed her conclusion in the last sentence of [139].
76 The appellant cannot succeed unless she satisfies this court that the trial judge was in error. The matters raised by the appellant in grounds 3 and 4 do not point to any discernible error made by the judge.
78 Grounds 5 and 6, in a similar vein to grounds 3 and 4, contend that the judge erred in attributing significance to the fact of the appellant's application to Centrelink, and the respondent's unwillingness to support the appellant, without taking into account the history of the parties' financial interrelationship. The appellant says that her Honour failed to give adequate reasons for why she considered the appellant's application for Centrelink benefits, and the respondent's unwillingness to support the appellant, to be of significance.
79 Her Honour considered, in detail, the history of the parties' financial relations at [45] - [73]. Further, her Honour set out her conclusions regarding the nature of the parties' financial relationship starting at [94]. Her Honour expressed her conclusion at [102] that:
Clearly, there was some financial interrelationship, but the parties mainly kept their finances separate.
80 Finally, her Honour referred to the parties' financial relationship in the concluding paragraphs of her reasons at [140], which is the specific subject of the appellant's complaint. Her Honour said:
While the parties were living in the same property, the respondent supported the applicant to a considerable extent and he paid his own way while staying with her in Perth. Once the respondent [sic - applicant] stopped working at all, she applied for Centrelink benefits to which she would not have been entitled if she was living in a de facto relationship, as defined in the Social Securities Legislation. She thereafter used the Centrelink payments received to support herself. It is of significance that at no stage after the applicant's workers' compensation payments ceased was the respondent prepared to contribute towards the applicant's support when she had no income, which should have been expected if the parties were in a 'marriage-like' relationship (emphasis added).
81 Like the gradual lessening of time the parties spent together, the parties' financial relationship was one of a number of factors that the judge properly took into account. 'The degree of financial dependence or interdependence, and any arrangements for financial support, between [the parties]' is one of the express indicia included in s 13A(2) of the Interpretation Act 1984. The significance of her Honour's observation in [140] concerning the Centrelink payments is, in my view, self-evident, and reflects the kind of reasoning one would expect in an application such as this. I do not consider the reasons to be inadequate.
83 At a stage well into the hearing, counsel for the appellant foreshadowed an application for leave to amend the grounds of appeal by adding a new ground challenging her Honour's finding at [86] on the basis that it was against the weight of the evidence. Counsel for the appellant said that even if all of the other grounds of appeal failed, the appellant should succeed on the proposed new ground alone. The ground had not been formulated by the end of the hearing. The court gave the appellant leave to file any application to amend within seven days of the hearing on the basis that if it arguably had the merit and significance contended for, the court would programme directions in respect of the proposed application.
84 On 23 February 2011, the appellant filed an application to amend the grounds of appeal by inserting the following:
Ground 7
(7) The learned trial Judge erred in finding that the Appellant spent almost all her time in [the respondent's town] until 2001 but then the periods reduced to, with the exception of 2003, very roughly half the time in that the finding was against the weight of other findings of Her Honour and the Evidence. The learned Trial Judge should have found that the Appellant had spent almost all her time in common residence with the Respondent until the end of 2000 and then 36 weeks of her time in common residence for 2001 and 2002 and then roughly half her time in common residence from 2003 until separation save for 2005.
Alternatively
Ground 8
(8) The learned trial judge failed to provide sufficient reasons for her finding that the Appellant spent almost all her time in [the respondent's town] until 2001 but then the periods reduced to, with the exception of 2003, very roughly half the time.
85 Proposed ground 7, in substance, contends that in her reasons at [86], the judge accepted the appellant's evidence, but then went on to make a finding (in the same sentence) on the basis that her evidence was rejected.
86 The appellant's evidence is set out, relevantly, at [82] of the reasons:
The applicant's evidence as to the time the parties resided together was:
87 The relevant finding in [86] of the reasons is in the following terms:
Having regard to the problems with each party's credibility, although he did not record it himself the fact the applicant kept a note of dates is not necessarily decisive, I accept the applicant's evidence is closer to the truth, and that she spent almost all her time in [the respondent's town] until 2001, but then the periods reduced, with the exception of 2003, to very roughly half the time.
88 For the following reasons, the judge's finding at [86], properly construed, reflects her Honour's acceptance of the substance of the appellant's evidence recorded in [82] of the reasons. First, the finding as to the time spent together is to be construed in light of, and prima facie consistently with, the preceding statement that the judge accepted that 'the [appellant's] evidence is closer to the truth'. The preceding statement informs the meaning of the rest of the sentence. As a matter of construction of the reasons, the court would be slow to find an inconsistency in the same sentence if another construction was reasonably open. Secondly, there is one feature of her Honour's finding which appears anomalous, namely the statement 'with the exception of 2003'. This anomaly is removed if it is seen as a typographical error, and that the finding is intended to read 'with the exception of 2005'. On the face of the appellant's evidence summarised above, the period of 13 weeks in 2005 is the figure that does not accord with the finding that the periods reduced 'to very roughly half the time' (ie, 26 weeks). Further, her Honour had previously drawn specific attention to 2005, when she found that the parties spent 'comparatively little physical time together' in 2005 (reasons [36]). This suggests that 2005 was the year the judge had intended to single out as the exception. Thirdly, once a typographical error is acknowledged, the judge's finding accords with the appellant's evidence. Her evidence was that until 2001 (which is to be interpreted as meaning up to the end of 2000), the appellant spent almost all her time in the respondent's town, but then the periods 'reduced', with the exception of 2005, to very roughly half the time. It is apparent that the judge deliberately included the words 'reduced ... to' having regard to her Honour's re-statement of the finding at [139] where she said, 'It is apparent that the parties spent much more time together in the early years of the relationship but this reduced over time' (emphasis added). The finding in [86] may have been clearer had the word 'down' been included so that the final phrase read 'down to very roughly half the time'. Nevertheless, that is the sense of it.
89 On that construction her Honour accepted that the parties spent 36 weeks together, and 16 weeks apart, in 2001 and 2002, as the appellant said.
90 On that basis, the appellant's formulation of what the judge 'should have found', in proposed ground 7, is not materially different from the actual finding properly construed.
91 In light of my conclusion as to proposed ground 7, it is unnecessary to consider proposed ground 8.
92 Accordingly, the appropriate course is to refuse leave to amend the grounds of appeal on the basis that neither of the proposed grounds has a reasonable prospect of succeeding: He v Aloe & Co Pty Ltd [2006] VSCA 150 [5]; Burns v Grigg [1967] VicRp 113; [1967] VR 871, 872.
AC
CM
(2003) 179 FLR 1
(2000) 203 CLR 172
(2000) 203 CLR 194
(1983) 9 Fam LR 305
(2004) 29 WAR 273
(2008) 244 ALR 205
(1994) 181 CLR 201
(1981) 27 SASR 258
(1983) 52 ALR 128
(2006) 151 FCR 546
(1992) 35 FCR 359
(1971) 125 CLR 296
(1996) 71 ALJR 29
(1995) 56 FCR 557
(1991) 66 ALJR 211
(1989) 13 Fam LR 559
(2000) 199 CLR 135
(2001) 117 FCR 424
(1987) 164 CLR 15
(1936) 55 CLR 499
(1989) 12 Fam LR 725
(1998) 3 VR 833
(2011) 274 ALR 509
(1997) 48 NSWLR 430
(2007) 70 NSWLR 151
(2008) 234 CLR 124
(1977) 138 CLR 563