Bava & Chaudry

Case [2021] FCCA 6

FEDERAL CIRCUIT COURT OF AUSTRALIA

Bava & Chaudry [2021] FCCA 6

File number(s): NCC 3312 of 2018
Judgment of: JUDGE TERRY
Date of judgment: 13 January 2021
Catchwords: FAMILY LAW – De facto property – where the Applicant alleges that the parties were in a de facto relationship for 2 years & 9 months – where the Respondent denies that the parties were ever in a de facto relationship – where the Applicant has not discharged the onus of proving that a de facto relationship existed – declaration made pursuant to s. 90RD of the Family Law Act that the parties were never in a de facto relationship.
Legislation: Family Law Act 1975 (Cth) ss 4AA, 90RD, 90SB, 90SM
Cases cited: Briginshaw & Briginshaw (1983) 60 CLR 336
Owens & Benson [2014] FamCAFC 243
Number of paragraphs: 101
Date of hearing: 9 & 15 October 2020
Place: Newcastle
Counsel for the Applicant: Ms Carty
Solicitor for the Applicant: Kent Law Group
Counsel for the Respondent: Mr Rugendyke
Solicitor for the Respondent: Burke & Mead Lawyers

ORDERS

NCC 2853 of 2020
BETWEEN:

MS BAVA

Applicant
AND:

MR CHAUDRY

Respondent

ORDER MADE BY:

JUDGE TERRY

DATE OF ORDER:

13 JANUARY 2021

THE COURT ORDERS THAT:

1.Pursuant to s 90RD of the Family Law Act it is declared that a de facto relationship never existed between Ms Bava and Mr Chaudry.

2.The Initiating Application filed on 22 October 2018 is dismissed.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Bava & Chaudry is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE TERRY:

Introduction

  1. On 22 October 2018 Ms Bava (“the Applicant”) filed an application for a de facto property settlement. She claimed that she and Mr Chaudry (“the Respondent”) were in a de facto relationship between September 2014 and 23 June 2017.

  2. On 4 February 2019 the Respondent filed a Response in which he denied that the parties were ever in a de facto relationship and sought dismissal of the application.

  3. As a result the matter was listed for hearing to determine the threshold question of whether the parties were ever in a de facto relationship.

    The evidence

  4. The Applicant relied on her Initiating Application filed on 22 October 2018 and her affidavit filed on 17 September 2019.

  5. The Applicant also filed a financial statement on 22 October 2018 but at this stage of the proceedings it is not relevant.

  6. The Respondent relied on his Response filed on 4 February 2019, his affidavit filed on 2 December 2019 and the affidavit of his father Mr D filed on 9 December 2019. He also filed a financial statement but it is also not relevant at this stage of the proceedings.

  7. The Applicant’s counsel referred in submissions to instances where the Respondent…

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AGLC
Bava & Chaudry [2021] FCCA 6
Case
[2021] FCCA 6
Decision Date

CaseChat Overview and Summary

In the matter of Bava & Chaudry, Ms Bava was the applicant and Mr Chaudry was the respondent before Judge Terry in the Federal Circuit Court of Australia. The dispute concerned whether a de facto relationship existed between the parties, which was a threshold question for the court to determine.

The court was required to determine whether the parties had been in a de facto relationship for the purposes of the *Family Law Act 1975* (Cth). This involved assessing the nature of their relationship, including the commencement and cessation of their sexual relationship, their ongoing contact, and the circumstances under which the applicant moved into the respondent's property.

Judge Terry found that while the parties had a sexual relationship between late 2007/2008 and October 2011/December 2012, and the applicant later moved into the respondent's home in September 2014, the evidence did not support a finding that a de facto relationship existed. The court was satisfied that the applicant hoped for a future together, which had some foundation in things the respondent said, but it was not satisfied that the respondent had made a firm commitment to live with her in a couple relationship prior to her moving in. The respondent's statements indicated reluctance to commit and concerns about his children's reaction.

Pursuant to s 90RD of the *Family Law Act*, the court declared that a de facto relationship never existed between Ms Bava and Mr Chaudry. Consequently, the Initiating Application filed on 22 October 2018 was dismissed.

Orders

Orders of the court

NCC 2853 of 2020

BETWEEN:

MS BAVA

Applicant

AND:

MR CHAUDRY

Respondent

ORDER MADE BY:

JUDGE TERRY

DATE OF ORDER:

13 JANUARY 2021

THE COURT ORDERS THAT:

1. Pursuant to s 90RD of the Family Law Act it is declared that a de facto relationship never existed between Ms Bava and Mr Chaudry.

2. The Initiating Application filed on 22 October 2018 is dismissed.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

I will bear this in mind when considering the findings open to me when there is conflict between the evidence of the parties, but this is not a case which turns greatly on credit. Many of the disagreements between the parties were not about the facts but about the inferences which could be drawn from the facts. Background The parties are both of Indian descent. I am unsure how long they have been in Australia but they were living in New South Wales at all material times. The Applicant is the niece of the Respondent’s ex-wife Ms E and the parties first met in 1993 when she was a child. They had intermittent contact over the years and they began a sexual relationship in either late 2007 according to the Respondent or 2008 according to the Applicant, when they were about 24 and 39 respectively. The sexual relationship ended in either October 2011 or December 2012 according to different versions given by the parties but they kept in touch after it ended. They occasionally met for dinner, they talked about issues the Applicant was having at work and with her parents and the Applicant invited the Respondent to attend a 60th birthday party for one of her work colleagues. During this period the Applicant was living with her parents in Sydney and the Respondent was living in a home he owned at F Street, Suburb G. It was common ground that in or about August 2014 the Applicant was keen to move out of her parents’ home and that in or about September 2014 she moved into the F Street, Suburb G property. The Applicant said that the Respondent asked her to do so because he still had strong feelings for her. She put into evidence some text messages he sent her in August 2014 which included the following: What? Why quitYes be my wife……………..Ok stop reminiscing get cracking. Get out of there and into F Street, Suburb G.[1] [1] Text messages Exhibit C. The Respondent did not deny that the text messages were sent but he said that too much weight was being placed on them. He said that the Applicant told him that she was moving out of her parents’ home and asked if she could move in with him and informed him that she was saving up to buy her own place. He said that he was reluctant to agree to her proposal but in the end said that she could do so. He said that the following conversation also occurred:I am not willing to commit myself. There is no guarantee anything will happen between us. My children will not like you being at my place. [2][2] Respondent’s affidavit paragraph 28. I am satisfied that the Applicant hoped and perhaps even believed that once she moved into F Street, Suburb G she and the Respondent would have a future together as a couple and that this had some foundation in things the Respondent said to her. The evidence does not however support a finding that prior to the Applicant moving in the Respondent had made a firm commitment to live with her in a couple relationship. The Respondent set up a separate bedroom in his house for the Applicant. The Applicant said that he told her that this was because he did not want to shock his children when they visited him by breaking the news to them too suddenly that he and the Applicant were in a relationship. She said that he told her that once the children got used to her living there he would tell them that he and the Applicant were in a relationship.

Evidence

Evidence Before The Court

As a result the matter was listed for hearing to determine the threshold question of whether the parties were ever in a de facto relationship. The evidence The Applicant relied on her Initiating Application filed on 22 October 2018 and her affidavit filed on 17 September 2019. The Applicant also filed a financial statement on 22 October 2018 but at this stage of the proceedings it is not relevant. The Respondent relied on his Response filed on 4 February 2019, his affidavit filed on 2 December 2019 and the affidavit of his father Mr D filed on 9 December 2019. He also filed a financial statement but it is also not relevant at this stage of the proceedings. The Applicant’s counsel referred in submissions to instances where the Respondent changed his evidence, namely his evidence about whether the parties ever shared a room when the Respondent’s children were there and about the reason why he let the Applicant contribute to the cost of renovations to his home. I will bear this in mind when considering the findings open to me when there is conflict between the evidence of the parties, but this is not a case which turns greatly on credit. Many of the disagreements between the parties were not about the facts but about the inferences which could be drawn from the facts. Background The parties are both of Indian descent. I am unsure how long they have been in Australia but they were living in New South Wales at all material times. The Applicant is the niece of the Respondent’s ex-wife Ms E and the parties first met in 1993 when she was a child. They had intermittent contact over the years and they began a sexual relationship in either late 2007 according to the Respondent or 2008 according to the Applicant, when they were about 24 and 39 respectively. The sexual relationship ended in either October 2011 or December 2012 according to different versions given by the parties but they kept in touch after it ended. They occasionally met for dinner, they talked about issues the Applicant was having at work and with her parents and the Applicant invited the Respondent to attend a 60th birthday party for one of her work colleagues. During this period the Applicant was living with her parents in Sydney and the Respondent was living in a home he owned at F Street, Suburb G. It was common ground that in or about August 2014 the Applicant was keen to move out of her parents’ home and that in or about September 2014 she moved into the F Street, Suburb G property. The Applicant said that the Respondent asked her to do so because he still had strong feelings for her. She put into evidence some text messages he sent her in August 2014 which included the following: What? Why quitYes be my wife……………..Ok stop reminiscing get cracking. Get out of there and into F Street, Suburb G.[1] [1] Text messages Exhibit C. The Respondent did not deny that the text messages were sent but he said that too much weight was being placed on them. He said that the Applicant told him that she was moving out of her parents’ home and asked if she could move in with him and informed him that she was saving up to buy her own place. He said that he was reluctant to agree to her proposal but in the end said that she could do so. He said that the following conversation also occurred:I am not willing to commit myself. There is no guarantee anything will happen between us. My children will not like you being at my place. [2][2] Respondent’s affidavit paragraph 28.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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