Zaronias v. Constantine [2005] NSWCA 324

New South Wales Court of Appeal

Zaronias v. Constantine [2005] NSWCA 324 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 14 September 2005

JUDGMENT DATE: 14 September 2005

JUDGMENT OF: Hodgson JA at 1; Tobias JA at 1; Bryson JA at 1

DECISION: Appeal dismissed with costs.

CATCHWORDS: FAMILY LAW - Family relationships - Whether parties lived together as a couple - Short form judgment dismissing appeal.

Susan Zaronias - appellant PARTIES: Con Constantine - respondent

FILE NUMBER(S): CA 40759/04

Mr. A. Lakeman for appellant COUNSEL: Mr. R.D. Wilson with Ms. A.J. Tibbey for respondent

Mackintoshs, Baulkham Hills for appellant SOLICITORS: Mullane & Lindsay, Newcastle for respondent

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): ED 3170/02

LOWER COURT JUDICIAL OFFICER: Young CJ in Eq.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40759/04 ED 3170/02

HODGSON JA TOBIAS JA BRYSON JA

Wednesday 14 September 2005 ZARONIAS V. CONSTANTINE Judgment 1 THE COURT: The appeal is dismissed with costs and the Court is of the unanimous opinion that the appeal does not raise any question of general principle. Pursuant to s.45(4) of the Supreme Court Act 1970 the Court's reasons in short form are as follows. 2 The only issue before the primary judge was whether the appellant and respondent "lived together as a couple" for a period of not less than two years. The primary judge was not satisfied that this was established. This was a finding of fact based on a thorough evaluation of the evidence. 3 One possible material error that has been suggested is that the primary judge said he would discount the evidence of one of the appellant's witnesses, Mr. Gregoriou, "because of the probability of bias after his sacking and the change of his evidence", in circumstances where the primary judge had previously referred to that witness's "affidavit after he was sacked". The true position was that this witness's affidavit was sworn before he was sacked by the respondent and that he was sacked immediately after this affidavit was served. 4 However the affidavit was sworn after the witness's son, Alex, had been sacked by the respondent, after another son had resigned from the respondent's employment following reduction of hours of employment, and after the witness's hours of employment had also been reduced. A reading of this witness's evidence shows that the primary judge was well entitled to take the view that the witness did not satisfactorily explain the differences between statements made by him before these events and his affidavit sworn after them. 5 In addition, the evidence of this witness did not give substantial support to the appellant's case that she and the respondent were living together as a couple. The appellant's case did not fail because the respondent's evidence was accepted - it was not - but because the appellant's evidence, primarily on matters on which she was not significantly supported by this witness, was not accepted. In those circumstances, to the extent that the primary judge made an erroneous statement concerning the timing of this witness's affidavit, this was not a material error. 6 Other criticisms of the primary judge's judgment are of less substance. We will mention two. It was contended that the respondent exploited the appellant financially and emotionally, and that the primary judge erred in looking for a single place of residence in circumstances where for a substantial part of the time the parties were together at hotels. 7 However, although exploitation if proved would be material to what order should be made if a domestic relationship is established, exploitation does not establish the existence of such a relationship; and although it was common ground that the parties spent each Thursday night together at a hotel in Newcastle, the primary judge's statement that he rejected a lot of what the appellant said suggests he was not satisfied that cohabitation in hotels went substantially beyond that. In those circumstances, his justified finding that the appellant maintained her separate residence was a substantial consideration against a finding that the parties lived together as a couple. 8 Mr Lakeman has put everything that could be said in support of the appellant, but the Court's view is that it was plainly open on the evidence for the primary judge not to be satisfied that the appellant and the respondent lived together as a couple, and there is no error in the judgment which could justify appellate intervention. **********