CHAM & SHA

[2015] FamCA 355

FAMILY COURT OF AUSTRALIA

CHAM & SHA [2015] FamCA 355

FAMILY LAW – JURISDICTION – De Facto – Where the applicant sought to have enforced a financial agreement between her and the respondent which was expressed to have been made pursuant to s 90UC of the Family Law Act 1975 (Cth) (‘the Act’) –
Where the respondent sought a declaration that a de facto relationship never existed between the applicant and the respondent – Consideration of the circumstances set out in s 4AA(2) of the Act – Where the duration of the relationship was under two years – Where there is one child of the relationship who was conceived though IVF – Where the parties shared a common residence for relatively confined periods of time – Where the respondent provided financial assistance to the applicant – Where the respondent alleged he did not understand the contents of the financial agreement he signed or the legal advice he was given – Where it was found that the parties were in a de facto relationship within the meaning of the Act before and after entering into the financial agreement – Where the respondent’s application for the declaration was dismissed.

Evidence Act 1995 (Cth) – s 128, s 140(1)
Family Law Act 1975 (Cth) – s 90RD(1), s 90UC
Family Law Rules 2004 – r 10.13

Ricci v Jones [2011] FamCAFC 222
Jonah v White [2011] FamCA 221

APPLICANT: Ms Cham

RESPONDENT: Mr Sha

FILE NUMBER: SYC 6872 of 2013

DATE DELIVERED: 15 May 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 11 April 2014 and
17 September 2014

WRITTEN SUBMISSIONS:

22 October 2014 and

7 November 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Norrie

SOLICITOR FOR THE APPLICANT: Wang Lawyers

COUNSEL FOR THE RESPONDENT: Mr Docker

SOLICITOR FOR THE RESPONDENT: Guardian Legal

Orders

1. It is declared that this Court has jurisdiction to determine the Amended Initiating Application filed on 20 February 2014 by Ms Cham on the basis that she and Mr Sha were in a de facto relationship during the period from approximately mid-March 2012 until approximately September 2013.

2. That paragraph 1 of the Response to Initiating Application filed on 25 March 2014 by Mr Sha be dismissed.

3. That both parties have leave to re-list these proceedings for further directions by arrangement with the Associate to Johnston J.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6872 of 2013

Ms Cham

Applicant

And

Mr Sha

Respondent

REASONS FOR JUDGMENT

1. The issue in these proceedings is whether a de facto relationship existed between Ms Cham (“the applicant”) and Mr Sha (“the respondent”).

2. On 20 November 2013 the applicant filed an Initiating Application in which she sought to have enforced, a financial agreement between her and the respondent dated 3 August 2012.…