CALHOUN and VUKOJA - [2020] FCWA 165

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: CALHOUN and VUKOJA [2020] FCWA 165
CORAM: O'BRIEN J
HEARD: 17 SEPTEMBER 2020
DELIVERED : Ex tempore
FILE NO/S: PTW 25 of 2019
BETWEEN: MS CALHOUN
Applicant
AND
MS VUKOJA
Respondent

Catchwords:

JURISDICTION - Where matter listed for trial to determine whether the parties were in a de facto relationship - Where it is common ground that the parties lived together but the respondent contends that they had no more than a platonic friendship - Where neither party has any witnesses and credibility will be a critical factor - Where the applicant is in Country A and unable to personally attend trial as presently listed - Where both parties are self-represented - Notwithstanding willingness of the parties to conduct trial by telephone, the trial cannot properly proceed in that manner.

Legislation:

Emergency Management Act 2005 (WA)
Family Court Act 1997 (WA)

Category: Reportable

Representation:

Counsel:

Applicant	:	Self-Represented Litigant
Respondent	:	Self-Represented Litigant

Solicitors:

Applicant	:	Self-Represented Litigant
Respondent	:	Self-Represented Litigant

Case(s) referred to in decision(s):

Australian Securities and Investments Commission v Wilson [2020] FCA 873
Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No. 3) (2009) 181 FCR 152
Craig v Silverbrook [2013] NSWSC 1687
Fox v Percy (2003) 214 CLR 118
Rosenberg v Percival (2001) 205 CLR 434

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Calhoun & Vukoja has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).

1The financial proceedings between [Ms Calhoun] and [Ms Vukoja] are listed for a trial to commence not before 30 September 2020 with an estimated hearing time of three days.
2The proceedings were commenced by Ms Calhoun filing an application on 18 December 2018 in which she asserted that the parties had lived together in a de facto relationship from November 2006 until 13 January 2017. Ms Vukoja denies that the parties ever lived together in a de facto relationship. In particular, she vehemently denies that the parties ever engaged in a sexual relationship or shared a bed. She describes a platonic friendship in which she permitted Ms Calhoun to live in her property.
3By procedural orders made by a Registrar, the matter was listed for trial without any bifurcation, such that both the issue of jurisdiction and if jurisdiction is established the substantive application for alteration of property interests are to be determined at the one hearing.
4At an earlier stage in the proceedings, Ms Vukoja brought an application for summary dismissal, which was heard by a Magistrate on 3 July 2020. In his Reasons for Decision, his Honour set out in some detail the history of the relationship as described in the evidence of each of the parties. Understandably, his Honour concluded that…

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 CALHOUN and VUKOJA

Details

AGLC: Calhoun and Vukoja [2020] FCWA 165
Case: [2020] FCWA 165
Decision Date: 21 SEPTEMBER 2020

CaseChat Overview and Summary

The case of Calhoun and Vukoja was heard in a court of summary jurisdiction, where the primary matter to be determined was the existence of a de facto relationship between the two parties. Both parties agreed that they cohabited, but the respondent maintained that their relationship was purely platonic. Given the lack of witnesses and the critical importance of credibility in such cases, the court had to weigh the testimonies carefully. Additionally, the applicant was in another country and unable to personally attend the trial as scheduled, while both parties were representing themselves. Despite their willingness to proceed via telephone, the court found that this method was not suitable for the trial.

The court had to address several legal issues, including whether the trial could proceed via telephone given the parties' willingness, and whether the absence of the applicant would significantly prejudice the respondent's right to a fair trial. Additionally, the court needed to consider the credibility of the parties' testimonies, as there were no other witnesses and the determination of a de facto relationship hinged on subjective factors.

In delivering its judgment, the court concluded that the trial could not proceed via telephone. The court found that a fair trial could not be conducted without the applicant being physically present, as the credibility of both parties would be difficult to assess through remote means. The court also noted the importance of the applicant's personal presence to adequately defend against the respondent's claims. Consequently, the trial was adjourned to a date when the applicant could return and personally attend. The court did not make a final determination on the existence of a de facto relationship, as this matter required a physical hearing with both parties present.

Orders