PY v CY [2005] QCA 247

SUPREME COURT OF QUEENSLAND

CITATION: PY v CY [2005] QCA 247

PARTIES: PY (plaintiff/respondent) v CY (defendant/appellant)

FILE NO/S: Appeal No 279 of 2005 / DC No 135 of 2002

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT: District Court at Maroochydore

DELIVERED ON: 15 July 2005

DELIVERED AT: Brisbane

HEARING DATE: 13 July 2005

JUDGES: de Jersey CJ, Williams and Jerrard JJA / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS: Appeal against the District Court Judge’s declaration, that the appellant and respondent were in a de facto relationship from in or about September 1988 until 25 December 2000, dismissed****Costs to be assessed

CATCHWORDS: FAMILY LAW AND CHILD WELFARE – DE FACTO RELATIONSHIPS – LEGISLATION – OTHER JURISDICTIONS – where s 32DA(1) Acts Interpretation Act 1954 (Qld) defines “de facto partner” as “persons who are living together as a couple on a genuine domestic basis” – where the Act lists “common residence” as one circumstance which may be considered, but which is not conclusive – where appellant and respondent were living in the appellant’s house – where respondent moved south to care for her elderly parents who were suffering ill health – where appellant intended to move south with respondent once he sold his house and business – where appellant accepted de facto relationship existed before respondent moved, but contended from then the relationship changed in character – where evidence led by both parties as to nature of relationship – where primary Judge accepted evidence of respondent and rejected contrary evidence of appellant – whether primary Judge erred in making declaration that the appellant and respondent were in a de facto relationship after respondent moved south – whether primary Judge gave inadequate weight to circumstance that parties did not co-habit together after respondent moved south – whether primary Judge wrongly accepted respondent as a credible witness / Acts Interpretation Act 1954 (Qld), s 32DA(1), s 32DA(2), s 32DA(3), s 32DA(4) / Property Law Act 1974 (Qld), s 257, s 260, s 261, s 280, s 286, s 319 / S v B [2004] QCA 449; Appeal No 3022 of 2004, 26 November 2004, cited

COUNSEL: T L Kirk SC, with G Burridge, for the appellant / M W Sayers for the respondent

SOLICITORS: Pippa Colman & Associates for the appellant / Rimmer Lawyers for the respondent

1. de JERSEY CJ: This is an appeal against a learned District Court Judge’s declaration that the appellant and respondent were in a de facto relationship from in or about September 1988 until 25 December 2000. The declaration was made under s 319 of the Property Law Act 1974 (Qld), in the context of the respondent’s application for a declaration that the appellant holds, on trust for her, a one half interest in the property registered in his name. The notice of appeal was drafted by the appellant personally. The ground pursued at the hearing of the appeal was different from the grounds in that notice of appeal. It was essentially that the Judge’s finding that a de facto relationship continued after March 1997 was not supportable. The appellant does not challenge the finding of a de facto relationship continuing over the period September 1988 to March 1997.

2. The appellant was granted leave to amend the notice of appeal. The amended grounds effectively particularize the challenge to the Judge’s finding. It is sufficient for the moment to focus on the overall ground mentioned earlier, that is, that the finding of a de facto relationship after March 1997 was not supportable.

3. Part 19 of the Property Law Act contains the provisions on which the respondent relied in her principal proceeding (ss 280, 286), and under which the court proceeded in making the declaration (s 319). Section 257 provides that Part 19 “applies to all de facto relationships other than relationships that ended before the commencement” of that section. Section 257 commenced on 21 December 1999. This puts into context the appellant’s practical interest in focusing on the period after March 1997.

4. In making the declaration, the Judge had regard to the definition of “de facto relationship” for the purposes of s 261 of the Property Law Act, that is, “the relationship between de facto partners”; and s 260, which defines “de facto partner” by reference to s 32DA of the Acts Interpretation Act 1954 (Qld). Sub section (1) provides:

“(1) In an Act, a reference to a “de facto partner” is a reference to either 1 of 2 persons who are living together as a couple on a genuine domestic basis but who are not married to each other or related by family.”

5. The appellant’s contention is that it could not reasonably have been found that after March 1997, he and the respondent lived together “as a couple on a genuine domestic basis”, because from that time, they “ceased to share a common residence”.

6. Section 32DA(2) of the Acts Interpretation Act lists “common residence” as one of the circumstances a court may take into account in determining whether the parties were de facto partners. Sub section (2) provides:

“(2) In deciding whether 2 persons are living together as a couple on a genuine domestic basis, any of their circumstances may be taken into account, including, for example, any of the following circumstances—

(a) the nature and extent of their common residence;

(b) the length of their relationship;

(c) whether or not a sexual relationship exists or existed;

(d) the degree of financial dependence or interdependence, and any arrangement for financial support;

(e) their ownership, use and acquisition of property;

(f) the degree of mutual commitment to a shared life, including the care and support of each other;

(g) the care and support of children;

(h) the performance of household tasks;

(i) the reputation and public aspects of their relationship.”

7. But “common residence” is not of itself necessary for there to be a de facto partnership, and will not without more give rise to such a relationship. That is made clear by the following sub sections (3) and (4):

“(3) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether 2 persons are living together as a couple on a genuine domestic basis.

(4) Two persons are not to be regarded as living together as a couple on a genuine domestic basis only because they have a common residence.”

See also S v B [2004] QCA 449.

8. To determine whether the ground of appeal can be sustained, we should nevertheless examine more broadly the state of the evidence. The comparative credibility of the witnesses weighed substantially.

9. The Judge accepted the evidence of the respondent and her witnesses (her son, brother and a female friend), and rejected the contrary evidence of the appellant and his witness Ms D. As he pointed out, the two bodies of evidence were “completely at odds”.

10. The respondent’s evidence was that in June 1988 she and her two year old son L moved to Rockhampton and commenced living in the appellant’s house. (The respondent had previously known the appellant.) By September that year, the appellant and the respondent were sleeping in the same bed, and living as a family unit with their respective children, behaving as an ordinary family would – for example, entertaining guests, and holidaying together and with other family members. There was talk of marriage. The respondent’s sexual relationship was exclusively with the appellant, although the respondent knew the appellant had had an affair with Ms D. The respondent assisted the appellant, without remuneration, in his pawn broking business and other business and property activities. The respondent did the housework. There was no intermingling of their financial affairs: the reason was that each party was concerned to maintain independence in that area because each had previously experienced bitterness in the ending of other relationships. Inscriptions on cards and images on photographs were consistent with their constituting, and presenting themselves as, a conventional family. The respondent’s evidence gained support from that of her son L, her brother S and her friend Ms H.

11. The appellant’s evidence was quite to the contrary. He denied the existence of any such de facto relationship. He put the matter on a purely formal basis: the respondent was to look after the house in return for accommodation for her son and herself. The appellant conceded some sporadic sexual intimacy with the respondent, but put that down to his having been intoxicated at the time. Ms D gave evidence that she was in a relationship with the appellant between 1990 and 2002. She gave evidence discounting any close relationship between the parties. Both the appellant and Ms D gave evidence which was derogatory of the respondent, covering drug and alcohol misuse and slovenliness.

12. The Judge described the evidence of the respondent and her witnesses as “consistent and convincing”, and rejected the evidence of the appellant and Ms D as “untrue”. His Honour considered their evidence derogatory of the respondent as discordant with the appellant’s preparedness to have the respondent and her son in his house over such a lengthy period. As he said of the appellant:

“His attempt in his evidence, supported by Ms [D] to blacken the applicant was entirely at odds with her residing with her son in his house in Rockhampton for about nine years. It was also at odds with the photographic material in the case. When cross examined about the photographs the respondent dissimulated, pretending he was unable to recognise people and places.”

Those were obviously strong findings adverse to the credibility of both the appellant and his witness.

13. Against that background, I turn to the circumstances after the respondent left Rockhampton in early 1997. The background is significant because the appellant accepts the finding that a de facto relationship existed to that point. How did their relationship then change?

14. The respondent then moved to the Sunshine Coast for the purpose of assisting her elderly parents, who were suffering ill health. (There was no challenge to the reality of that claimed purpose.) The appellant remained in Rockhampton pending the sale of his house and business. The understanding between the appellant and respondent was that the appellant would then join the respondent on the Sunshine Coast. As found by the Judge, “it had been discussed and agreed between the [respondent] and the [appellant] that the [appellant] would join the [respondent] at the Sunshine Coast when the [appellant] sold his house and business”.

15. The respondent lived initially in her brother’s house, for which the appellant offered to pay rent (an offer not taken up by the brother), and then moved into a house leased by the appellant at the Sunshine Coast. The appellant provided cash for the bond and rent. While the respondent was living there, the appellant gave her a diamond ring, which he described to her brother as an engagement ring. In May 1999 the appellant purchased a property inland from the Sunshine Coast, for the sum of $181,000, and the respondent then moved into that property. The respondent had previously inspected the property and otherwise facilitated the appellant’s purchase of it. They had together been looking for an acreage property, as the Judge found “for themselves”: “they agreed it would be purchased for them to live in”.

16. After the appellant left Rockhampton in early 1997, the appellant was able to sell his house, but not the business. Although he remained living in Rockhampton, he visited the respondent and her son on average every second weekend, and during those visits lived with her – at each of the three residences she occupied. The appellant also lived with the respondent and her son for extended periods at holiday time, bringing his own two children often. There was evidence of other interaction.

17. Things changed at Christmas time in the year 2000. The appellant violently assaulted the respondent’s son. The respondent had previously tolerated violence visited upon her by the appellant. The incident in relation to her son led to a complete breakdown of the relationship, and the respondent moved out of the appellant’s house in May 2001. The Judge’s declaration set 25 December 2000 as the termination date of the de facto relationship.

18. His Honour’s analysis of the relationship between the parties after March 1997, when the respondent left Rockhampton, was as follows:

“As I observed earlier, I do not accept the evidence of the respondent or his witness. There is no acceptable evidence that the respondent prior to the 25th of December 2000 decided that he no longer wished to live as he had done with the applicant, but to live apart. He did not communicate any such intention to her. ... to all outward appearances, and in his behaviour in the relationship he remained committed to he and the applicant as a couple. I accept that the applicant remained committed to that at least until the incident between the respondent and her son at Christmas 2000. It is the case they did not cohabit, except on average every second weekend and on holidays when the respondent came down from Rockhampton. However I do not think that means there was not a de facto relationship. The explanation for that on the evidence is not that he wished to withdraw and live apart but that the exigencies of finalising his business affairs in Rockhampton required it.”

19. Counsel for the appellant criticized that expression of reasons, especially for its reference to the appellant’s remaining committed to the respondent and himself “as a couple”. The submission was that the Judge thereby ignored another important part of the s 32DA(1) definition of “de facto partner”, the part referring to living together as a couple “on a genuine domestic basis”. That is however an unwarranted criticism. It depends on an unjustifiable, piecemeal reading of the reasons. In the earlier part of the passage extracted above, His Honour found that there was no acceptable evidence that within the relevant period (that is, post March 1997), the appellant wanted to live differently, in relation to the respondent, from the way in which they had previously lived – that is, during the earlier period, for which the finding of a de facto relationship is not challenged. His Honour explained why, in respect of the later period, the absence of continual cohabitation did not, in the circumstances confronting him, preclude the existence of a continuing de facto relationship: the simple reason for that was the appellant’s need to tidy up his business affairs in Rockhampton before moving to the Sunshine Coast to join the respondent and her son. The respondent had moved from Rockhampton, not to leave the appellant, but because she felt constrained to look after her elderly parents. And substantial, regular, intimate and other contact continued thereafter, embracing their mutual interest in matters personal, property and financial.

20. Counsel for the appellant also criticized the Judge’s treatment of the features covered in s 32DA(2) of the Acts Interpretation Act, in that while he expressed findings in relation to some of those matters, “it is not apparent that those findings then involved an assessment and weighing of all relevant factors in order to reach his conclusion”. A reading of the reasons for judgment demonstrates that contention simply cannot be sustained. His Honour’s reasons suggest a careful weighing of the apparently relevant considerations. As to his making express findings in relation to some only of the features mentioned in the provision – and it is not clear that his approach was so confined, it is enough to observe that the provision is expressed in permissive and inclusory language.

21. The written submission for the appellant came close to a contention that the absence of continual cohabitation after March 1997 of itself precluded there being a de facto relationship. The submission read:

“The salient identifying feature that two persons are de facto partners is that they are living together, and living together as a couple in a common residence. … Over an extended period, in the absence of ‘extenuation (sic) circumstances’ like holidays or travel, if two persons do not share a common residence, it is unlikely the two persons are in a de facto relationship. While ultimately this is a question of degree, the longer that they do not share a common residence, the less likely it is that they could be said to be de facto partners.”

At the hearing of the appeal, Mr Kirk SC, for the appellant, emphasized the length of the period after March 1997 during which the parties did not share a common residence.

22. But as pointed out earlier, there is even statutory recognition that cohabitation in a “common residence”, while plainly relevant and often significant, is not necessarily essential one way or the other. Further, the Judge’s findings explain why, in the particular circumstances of this case, the separate residency of the parties did not mean that their de facto commitment had ceased.

23. Counsel for the appellant, in the written material, challenged the Judge’s acceptance of the respondent as a credible witness. It would in principle be very difficult for this court to accede to such a submission, because this is a case where, having heard the parties and their witnesses giving evidence, and their respective accounts being “completely at odds”, the primary Judge had a particular advantage in assessing credibility, an advantage this court lacks.

24. Counsel particularly relied on the content of a statement made by the respondent to Centrelink in September 2003. The respondent had been claiming and receiving a “single parent benefit” during the periods of her cohabitation with the appellant, to which on her own case she was not entitled. In the result she repaid $35,600 to the Commonwealth. The formal admission made by her to the Commonwealth authority states in part:

“3. In early 2002, after reflecting on my lifestyle when I lived in Rockhampton, I came to a decision that I had been in a de facto relationship with [the appellant] … from about the time that I moved into his house in Rockhampton in 1988 until I moved to the Sunshine Coast.

4. At the time I moved to the Sunshine Coast, I began to live separately from [the appellant]. Although we may have continued with a relationship, we did not co-habit.”

5. His Honour accepted the respondent’s evidence, expressly notwithstanding that conduct. He said:

“I do not regard the obtaining of sole parent benefit to which she was not entitled whilst in Rockhampton, the application for sole parent benefit at Maroochydore in 1997, receipt of the benefit thereafter until 2001 although the respondent paid rent for [J] Drive and provided the accommodation at [W] Road, or the admission to the Commonwealth as matters which require or cause me to reject her evidence.”

Elsewhere in his reasons for judgment, the Judge observed that the appellant encouraged the respondent in that course, and presumably – and quite reasonably, in his assessment that dimmed the significance attaching to her false claims, it being a case where the assessment of their comparative credibility was of prime importance.

26. Counsel for the appellant also submitted that the Judge gave no adequate reasons why the respondent should not have been held to her admission, in those formal terms, that they may have been in a “relationship”, which she did not term a “de facto” relationship. The respondent’s statement to the Commonwealth was literally true. The Judge was entitled to take the view, as he probably implicitly did, that the respondent was not then describing her relationship with the appellant in any comprehensive way. She would have been concerned to say no more than was necessary to establish her position in relation to entitlement to the financial benefit she had been claiming and receiving. Her immediate concern was not to address the issue relevant in these proceedings.

27. Counsel for the appellant raised other criticisms of the respondent’s evidence, for example her description of their relationship in the later period as that of “boyfriend and girlfriend”. By itself, that characterization was not inconsistent with the bulk of her other evidence, which was that it remained a de facto relationship. Her evidence was that their relationship did not change after 1997. The position may have been different had she been asked what she understood a “boyfriend, girlfriend” relationship to entail, and answered in a way which would distinguish that relationship from a de facto relationship within the meaning of the legislation.

28. The appellant’s ultimate position was that the Judge gave inadequate weight to the circumstance that from early 1997 the parties did not live together on a continual basis, and too much weight to other circumstances favouring the existence of a de facto relationship, like the photographs. Other issues, it was suggested, were not given enough weight, including their keeping their respective financial positions separate, the absence of jointly owned property, and the extent of telephone contact between them after March 1997. Such criticisms, which concern matters of factual detail, cannot survive a fair reading of the Judge’s reasons for judgment, which suggest His Honour carefully and reasonably carried out the requisite balancing process.

29. None of the bases for the challenge to the declaration made in the District Court can be sustained. I would order that the appeal be dismissed, with costs to be assessed.

30. WILLIAMS JA: The relevant facts, and a summary of the reasoning of the learned judge at first instance, are to be found in the reasons for judgment of the Chief Justice which I have had the advantage of reading.

31. In the course of argument counsel for the appellant referred on a number of occasions to a passage in my judgment in S v B [2004] QCA 449. I there said that the de facto relationship between the parties in that case was not "evidenced by a number of the more concrete indicia which are frequently seen as an integral part of such a relationship." However, what will constitute a "concrete indicia" will vary with the circumstances of each case. Often a somewhat intangible consideration, such as how the couple presents to the public, will be the most decisive consideration. In the present case counsel for the appellant submitted that a common residence was the most telling "concrete indicia" of such a relationship, and its absence strongly suggested that the parties were not "living together as a couple on a genuine domestic basis." But, as Jerrard JA has pointed out in his reasons in this case, a couple may still be living together on a genuine domestic basis although separated by considerable distance because of prevailing circumstances.