Bush & McCoy

Case [2024] FedCFamC2F 1276

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Bush & McCoy [2024] FedCFamC2F 1276

File number(s): SYC 9165 of 2022
Judgment of: JUDGE BECKHOUSE
Date of judgment: 21 November 2024 
Catchwords: FAMILY LAW – Defacto relationship – Threshold issue – Where the applicant seeks a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) – Where the respondent denies the existence of a defacto relationship – Consideration of the nature of the parties’ 21 year relationship – Where the parties lived together – Where the parties had a non-exclusive sexual relationship – Where the applicant was financially dependent on the respondent – Whether the parties had a mutual commitment to a shared life together – Costs reserved.
Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 4AA, 4AA(1), 4AA(2), 4AA(4), 44(5), 44(6), 90RD, 90RD(1), 90SM, 90SM(4) and 90SB

Cases cited:

Cizek & Mihov [2024] FedCFamC1A 151; (2024) FLC 94-206

Fairbairn v Radecki (2022) 275 CLR 400

Jonah & White (2011) 45 Fam LR 460

Lennon & Sanil (2020) FLC 93-962

Lynam v Director-General of Social Security (1984) FLC 91-577

Mayson & Wellard [2021] FamCAFC 115

Moby & Schulter (2010) FLC 93-447

Rooks & Padley [2014] FamCA 444

Shelby & Rylan [2022] FedCFamC1A 143

Sinclair & Whittaker (2013) FLC 93-551

Smoje v Forrester [2017] NSWCA 308

State Rail Authority (NSW) v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588
Division: Division 2 Family Law
Number of paragraphs: 199
Date of hearing: 15-18 July 2024 and 7 August 2024
Place: Sydney
Counsel for the Applicant: Mr Apelbaum
Solicitor for the Applicant: Unified Lawyers
Counsel for the Respondent: Mr Ford
Solicitor for the Respondent: Kells the Lawyers

ORDERS

SYC 9165 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

MS BUSH

Applicant
AND:

MR MCCOY

Respondent

ORDER MADE BY:

JUDGE BECKHOUSE

DATE OF ORDER:

21 NOVEMBER 2024

THE COURT DECLARES THAT:

1.Pursuant to s 90RD of the Family Law Act 1975 (Cth) a defacto relationship existed between the parties from June 2000 to 28 January 2021.

THE COURT ORDERS THAT:

Conciliation Conference

2.The parties are to attend a Conciliation Conference with a Registrar on 3 February 2025 at 9:00 am.

3.Each party must within 28 days from this date:

(a)do all things to provide full and frank disclosure to the other party including but not limited to such of the matters set out in Rule 6.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) as are relevant to these proceedings;

(b)comply with Rule 6.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) by serving on each other copies of the documents provided for therein as applicable; and

(c)provide confirmation that the Trustee of any fund sought to be the subject of a splitting order has been accorded procedural fairness.

4.At least seven (7) days before the Conciliation Conference each party must send to the other and to…

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AGLC
Bush & McCoy [2024] FedCFamC2F 1276
Case
[2024] FedCFamC2F 1276
Decision Date

CaseChat Overview and Summary

The matter before Judge Beckhouse in the Federal Circuit and Family Court of Australia concerned a dispute over the existence of a defacto relationship between the applicant, Ms Bush, and the respondent, Mr McCoy. The applicant sought a declaration under section 90RD of the Family Law Act 1975 that a defacto relationship had existed between them for over twenty-one years. The respondent denied this claim and contested the application. The nature of the relationship, including their cohabitation, sexual relationship, and financial dependency, was central to the court's consideration.

The primary legal issue the court had to resolve was whether Ms Bush and Mr McCoy had a defacto relationship as defined under the Family Law Act. This involved assessing the mutual commitment to a shared life between the parties, despite the non-exclusive nature of their sexual relationship. The court had to evaluate the evidence regarding the extent of their shared life, including their cohabitation, financial dependency, and the duration and nature of their relationship. It was essential to determine if these factors collectively demonstrated a defacto relationship as per the statutory definition.

Judge Beckhouse found that the evidence presented indicated a defacto relationship existed between Ms Bush and Mr McCoy from June 2000 until 28 January 2021. The court considered the duration of their relationship, their shared living arrangements, and the financial dependency of the applicant on the respondent. These factors, in conjunction with the non-exclusive sexual relationship, were sufficient to meet the criteria for a defacto relationship under the Family Law Act. The court's decision was grounded in the comprehensive nature of their shared life, which demonstrated a mutual commitment beyond mere cohabitation or sexual intimacy.

The court's order declared the existence of a defacto relationship between the parties and mandated a Conciliation Conference to facilitate further proceedings. The parties were required to engage in full disclosure and attend a Conciliation Conference to attempt to resolve their disputes. Additionally, the court outlined specific procedural requirements for the preparation and exchange of documents and submissions in relation to the costs incurred during the proceedings. The court reserved the right to determine any costs application in accordance with the relevant rules and procedures.

Orders

Orders of the court

SYC 9165 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS BUSH

Applicant

AND:

MR MCCOY

Respondent

ORDER MADE BY:

JUDGE BECKHOUSE

DATE OF ORDER:

21 NOVEMBER 2024

THE COURT DECLARES THAT:

1. Pursuant to s 90RD of the Family Law Act 1975 (Cth) a defacto relationship existed between the parties from June 2000 to 28 January 2021.

THE COURT ORDERS THAT:

Conciliation Conference

2. The parties are to attend a Conciliation Conference with a Registrar on 3 February 2025 at 9:00 am.

3. Each party must within 28 days from this date:

(a) do all things to provide full and frank disclosure to the other party including but not limited to such of the matters set out in Rule 6.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) as are relevant to these proceedings;

(b) comply with Rule 6.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) by serving on each other copies of the documents provided for therein as applicable; and

(c) provide confirmation that the Trustee of any fund sought to be the subject of a splitting order has been accorded procedural fairness.

4. At least seven (7) days before the Conciliation Conference each party must send to the other and to the Registrar a paginated and indexed single fully text searchable PDF document containing:

(a) a completed Confidential Case Outline Document (Dispute Resolution), which is not to be filed;

(b) a minute of orders sought;

(c) a copy of any document exchanged between the parties which is directly relevant to an issue remaining in dispute (with relevant passages highlighted);

(d) particulars of any financial resource;

(e) a valuation or market appraisal of any real estate or other asset the value of which is in dispute;

(f) statements for, and where applicable, valuations of any superannuation interest; and

(g) written confirmation that the trustee of any fund that may be the subject of a splitting order has been afforded procedural fairness.

5. Any documents required for the Conciliation Conference are to be emailed to …@…

6. Prior to the Conciliation Conference a lawyer must give to their client written notice setting out:

(a) the costs and disbursements incurred by the party up to and including the event; and

(b) the estimated future costs and disbursements of the party up to and including each future court event.

Costs

7. In the event that the Applicant seeks a costs order in her favour, the Applicant is to file and serve written submissions within 28 days on the costs incurred defending the determination of this threshold issue with such written submissions to be no longer than five (5) pages excluding annexures.

8. Thereafter, the Respondent is to file and serve written submissions in response within 28 days, with such written submissions to be no longer than five (5) pages excluding annexures.

9. Any costs application made in accordance with Order 7, shall be determined by the trial judge.

THE COURT NOTES THAT:

A. The written submissions in relation to costs are to comply with the relevant rules in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), in particular, Chapter 12.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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