Cadman & Hallett - [2014] FamCAFC 142

FAMILY COURT OF AUSTRALIA

CADMAN & HALLETT

[2014] FamCAFC 142

FAMILY LAW – APPEAL – DE FACTO RELATIONSHIP – Where the trial judge declared that a de facto relationship existed between the parties – Where an application for summary dismissal of the application was before the trial judge - Where the issue before the trial judge was when the de facto relationship ended – Where the appellant submitted that the trial judge had erred finding that the relationship ended in mid-2010 – Where the ground of appeal misstates the trial judge’s finding – Where no error demonstrated – Where the appellant relied on a single factor in the determination of whether a de facto relationship existed pursuant to s 4AA of the Family Law Act 1975 (Cth) – Where the trial judge referred to the circumstances and gave appropriate weight to those circumstances – Where it was further submitted that the respondent, in attempting to arrange a “sham” marriage for the purposes of staying overseas, should compel a finding that an intention had been conveyed to the appellant to end the relationship – Where this would not necessarily be inconsistent with a de facto relationship continuing - Where no error demonstrated – Appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Where the appeal was wholly unsuccessful – Where the appellant sought an order for costs - Where a costs order was not opposed by the respondent – Costs order made in favour of the respondent.

Family Law Act 1975 (Cth) ss 4AA, 44(5), 90RD

Jonah v White (2011) 45 Fam LR 460
Jonah v White (2012) FLC 93-522
Lynam v Director-General of Social Security (1983) 52 ALR 128
Sinclair & Whittaker (2013) FLC 93-551

APPELLANT:

Mr Cadman
by his Case Guardian Ms C

RESPONDENT:

Mr Hallett

FILE NUMBER:

SYC

4542

2012

APPEAL NUMBER:

167

2013

DATE DELIVERED:

11 August 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Strickland, Ainslie-Wallace & Aldridge JJ

HEARING DATE:

19 June 2014

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

18 October 2013

LOWER COURT MNC:

[2013] FamCA 819

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Thomas

SOLICITOR FOR THE APPELLANT:

Harris & Co

COUNSEL FOR THE RESPONDENT:

Ms Obrart

SOLICITOR FOR THE RESPONDENT:

G & D Lawyers

Orders

The appeal be dismissed.
The appellant pay the respondent’s costs of and incidental to the appeal as agreed and in default of agreement, as assessed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cadman & Hallett has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 167 of 2013
File Number: SYC 4542 of 2012

Mr Cadman

by his Case Guardian Ms C

Appellant

and

Mr Hallett

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

Mr Cadman by his Case Guardian, appeals against Orders made by Rees J given on 18 October 2013 in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cadman & Hallett

Details

AGLC: Cadman & Hallett [2014] FamCAFC 142
Case: [2014] FamCAFC 142
Decision Date: 11 August 2014

CaseChat Overview and Summary

In the case of Cadman & Hallett, the appellant contested the trial judge's declaration of a de facto relationship between the parties and the determination that the relationship ended in mid-2010. The matter was before the court on an appeal against the trial judge's decision. The appellant argued that the trial judge had erred in finding that the relationship ended in mid-2010 and submitted that the ground of appeal misstated the trial judge's finding. The court found that no error was demonstrated, as the trial judge had referred to the circumstances and gave appropriate weight to those circumstances. The appellant further contended that the respondent's attempt to arrange a "sham" marriage for the purposes of staying overseas should compel a finding that an intention had been conveyed to the appellant to end the relationship. However, the court held that this would not necessarily be inconsistent with a de facto relationship continuing, and no error was demonstrated in this regard.

The court dismissed the appeal and noted that the appeal was wholly unsuccessful. The appellant sought an order for costs, but a costs order was not opposed by the respondent. Consequently, the court made an order for costs in favour of the respondent.

The final orders of the court were as follows: the appeal was dismissed, and the appellant was ordered to pay the respondent's costs of and incidental to the appeal as agreed, or, in default of agreement, as assessed.

Orders

Orders of the court

The appeal be dismissed.

The appellant pay the respondent’s costs of and incidental to the appeal as agreed and in default of agreement, as assessed.

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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