DORMAN v BEDDOWES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL HANDLEY JA, CLARKE and GROVE AJJA 14 April 1997, 14 April 1997 [1997] NSWCA 91 Family law — de facto relationships — existence of relationship The appellant appealed from the decision of Master Macready who had dismissed his application under the De facto Relationship Act 1984 (NSW). The Master was not satisfied that the relationship had existed for two years, as required by s17(1). HELD: per Handley JA, (Clarke and Grove AJJA agreeing), (dismissing the appeal): (1) In view of the number of factors that were relevant in considering whether a de facto relationship existed and the questions of fact and degree that were necessarily involved, the Court would be reluctant to disturb a finding as to the existence or otherwise of such a relationship where no error of law or mistake of fact was shown. (2) No error of law or mistake of fact had been established in this case, and the Master's evaluation of the relationship between the parties should not be disturbed. Handley J This is an appeal by a plaintiff whose application for relief under the Defacto Relationships Act was dismissed by Master Macready. The Master found that the de facto relationship ended in October 1994 but was not satisfied that it had begun more than two years before that date. The requirement that the relationship last for a minimum of two years is in ordinary circumstances a statutory pre-condition to the exercise of the Court's powers under the Act. The Master gave extensive reasons for not being satisfied that a defacto relationship had commenced by October 1992 even if the parties had started sharing a bedroom. He said: "Tt seems to me that this is a classic case of a relationship slowly taking shape and changing over a period of time. The plaintiff has not advanced sufficient evidence to satisfy me that by October 1992 it was a defacto relationship". Mr Shaw who said all that could be said on behalf of the appellant did not challenge the Master's findings of primary fact. Nor did he suggest that the Master had misdirected himself. A defacto relationship may take many forms. It may evolve as this one did over time or may commence at an obvious and public moment. The tests which the Court must apply in deciding whether parties are living together as husband and wife on a bonafide domestic basis were referred to by the Master who cited the decision of this Court in Light v Anderson (1992) Defacto Cases 95120 and the decision of Kearney J in Simonis v Perpetual Trustee Co Ltd (1987) 21 NSWLR 677. Kearney J referred to ten matters: (1) the duration of the relationship; (2) the nature and extent of the common residence; (3) whether or not a sexual relationship existed; (4) the degree of financial inter independence and any arrangements for support between or by the parties; (5) the ownership, use and acquisition of property; 2 UNREPORTED JUDGMENTS (6) the procreation of children; (7) care and support of children; (8) the performance of household duties; (9) the degree of mutual commitment and mutual support; (10) reputation and public aspects of the relationship. The Master found that the parties did not commence to share a common bedroom until some time between March and September 1991. In the light of that finding, any suggestion that a defacto relationship had commenced prior to that time should be rejected. The Master found that there was a substantial amount of work done by the appellant on the house property of the respondent, but that most of this was carried out after 1992. Work had been done earlier by the appellant on the plumbing and in painting the property, but the Master was not satisfied that the work before the end of 1992 was sufficiently extensive to establish the necessary relationship. He found that there had been no intermingling of financial arrangements until mid 1993 after the engagement party in March that year. He also found that the appellant was not fully committed to this relationship for some appreciable time after the parties had commenced to have sexual relationships. He said: "The defendant says that although they started a sexual relationship she soon found out the plaintiff for quite some time still hoped to get back together again with his wife and resume living with her. I am prepared to accept the defendant on this aspect, particularly bearing in mind the lack of evidence of other matters tending towards the relationship to which I will come shortly. It seems to me that initially there was quite a period when there was not a substantial commitment by the plaintiff to the relationship". The next matter which in my judgment is of considerable importance in cases under this Act, is the question of reputation and any public aspects of the relationship. The Master said: "Apart from the engagement party there is little evidence on this important aspect. It seems to me that this is because there was probably little holding out to the public about the relationship". The situation, therefore, is that the financial arrangements between the parties did not support the existence of a defacto relationship prior to 1993. There was no evidence of public holding out prior to the engagement in March 1993. The commitment of the appellant to the relationship was unclear for a substantial period of time after a sexual relationship had commenced, and the objective evidence of that commitment in the form of work on the respondent's property did not commence until after October 1991, and remained at a modest level during 1992. Mr Shaw's only substantial submission on this part of the case was that on the Master's findings of primary fact the proper inference to be drawn was that a defacto relationship between the parties had commenced prior to October 1992. The question is obviously one of fact and degree which involves the evaluation of the ten relevant matters set out in the judgment of Kearney J. Each of those factors is potentially important and the weight to be given to each in a particular case is a matter for judgment. URJ DORMAN v BEDDOWES (Grove AJA) 3 Although the decision on this threshold issue does not involve the exercise of a judicial discretion, a multiplicity of factors have to be considered and questions of fact and degree necessarily arise. In these circumstances this Court should be slow to interfere with a decision which has not been affected by a mistake of fact or error of law. I have not been persuaded that the Master fell into error in his evaluation of this evolving relationship, and I have not been persuaded that this Court is entitled to interfere and substitute a finding that the relationship had come into existence prior to October 1992. S17(2) permits the Court to disregard the requirement that the relationship must have existed for a minimum of two years where the Court is satisfied that an applicant has made substantial contributions to the property or welfare of the other party for which he or she will not be adequately compensated, and that the failure to make an order would result in serious injustice to the applicant. Mr Shaw frankly conceded that no submissions were made to the Master on this issue. In these circumstances it would be difficult for this Court to interfere. The Master however indicated that the distribution of benefits and burdens between these parties at the end of their relationship was not such as would have caused him to exercise the Court's jurisdiction to make a property adjustment order in any event. He said: "Even if this were a case where it was appropriate to find that there was a relationship which attracted jurisdiction... the parties' property interests should not be subject to any further adjustment. The plaintiff would be entitled to keep the personal property which he took at the conclusion of the relationship and the defendant should retain her house or the proceeds from the sale thereof after meeting the mortgage and the credit union debt". In the light of this finding, it is evident that had the Master been invited to exercise the Court's power to dispense with the minimum requirement for a two year relationship, he would have declined to do so. Clarke AJA I agree with the orders proposed and for the reasons which underly those orders. Grove AJA I also agree for the reasons given by the presiding Judge. For those reasons I would propose that the appeal should be dismissed with costs.