FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Chin & Bao [2025] FedCFamC1A 9
Appeal from: Chin & Bao [2024] FedCFamC2F 984 Appeal number: NAA 215 of 2024 File number: SYC 1198 of 2019 Judgment of: CAMPTON J Date of judgment: 4 February 2025 Catchwords: FAMILY LAW – APPEAL – DE FACTO RELATIONSHIP – Where the appellant contends that the parties were in a de facto relationship for over three years Where the respondent’s case was that the parties were never in a de facto relationship, that they were engaged in a personal relationship, and thereafter were friends and business partners – Where the primary judge determined that the appellant had not established that the parties were in a de facto relationship so as to enliven jurisdiction to consider the adjustment of property pursuant to s 90SM of the Family Law Act 1975 (Cth) and dismissed the appellant’s application – Where there was no error in the approach taken by the primary judge in assessing the parties’ and witnesses credibility – Where the appellant contended that the primary judge failed to grapple with the central controversies in dispute by way of failing to “properly evaluate” the evidence – Where there was no error in the primary judge’s evaluation of the evidence – Appeal dismissed – Appellant to pay the respondent’s costs of the appeal. Legislation: Family Law Act 1975 (Cth) ss 4AA, 90RD, 90SM
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Sch 3, r 13.23
Cases cited: AIS v AMF (1999) 199 CLR 160; [1999] HCA 26
Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Cizek & Mihov (2024) FLC 94-206; [2024] FedCFamC1A 151
Coal & Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194; [2000] HCA 47
Colburn & Cleese (2022) FLC 94-105; [2022] FedCFamC1A 147
Curtis v Curtis [2024] NSWCA 136
De Winter and De Winter (1979) FLC 90-605
Deodes & Deodes and Ors (2019) FLC 93-905; [2019] FamCAFC 97
DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635; [2023] HCA 32
House v The King (1936) 55 CLR 499; [1936] HCA 40
Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Lennon & Sanil (2020) FLC 93-962; [2020] FamCAFC 109
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Rafferty & Spencer (2016) FLC 93-710; [2016] FamCAFC 97
Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasinghan (2000) 168 ALR 407[ [2000] HCA 1
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 160 ALR 588; [1999] HCA 3
Vetter v Lake Macquarie City Council (2001) 202 CLR 439; [2001] HCA 12
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- AGLC
- Chin & Bao [2025] FedCFamC1A 9
- Case
- [2025] FedCFamC1A 9
- Decision Date
CaseChat Overview and Summary
In the case of Chin & Bao, the Federal Circuit and Family Court of Australia was tasked with reviewing an appeal concerning the determination of whether the parties were in a de facto relationship. Mr Chin, the appellant, argued that he and Ms Bao, the respondent, were in a de facto relationship for over three years, while Ms Bao contended that they were never in such a relationship but were merely friends and business partners. The primary judge dismissed Mr Chin's application for an adjustment of property under section 90SM of the Family Law Act 1975 (Cth), concluding that Mr Chin had not established the existence of a de facto relationship.
The legal issues before the court were whether the primary judge correctly assessed the credibility of the parties and their witnesses, and whether the primary judge properly evaluated the evidence presented to determine the nature of the relationship between the parties. The court had to determine if there was any error in the primary judge's approach and findings, particularly regarding the central controversies in dispute as argued by Mr Chin.
The court found that the primary judge did not err in assessing the credibility of the parties and their witnesses. The evaluation of the evidence, including the circumstances surrounding the purchase of a jointly owned property, the lack of shared residence, and the absence of financial interdependence, was properly conducted. The court also found no error in the primary judge's approach to the evidence regarding the holiday the parties undertook, the text and social media messages exchanged, and the shared common residence. The appeal was dismissed, and Mr Chin was ordered to pay Ms Bao's costs of the appeal in the sum of $27,996 within 28 days.
The legal issues before the court were whether the primary judge correctly assessed the credibility of the parties and their witnesses, and whether the primary judge properly evaluated the evidence presented to determine the nature of the relationship between the parties. The court had to determine if there was any error in the primary judge's approach and findings, particularly regarding the central controversies in dispute as argued by Mr Chin.
The court found that the primary judge did not err in assessing the credibility of the parties and their witnesses. The evaluation of the evidence, including the circumstances surrounding the purchase of a jointly owned property, the lack of shared residence, and the absence of financial interdependence, was properly conducted. The court also found no error in the primary judge's approach to the evidence regarding the holiday the parties undertook, the text and social media messages exchanged, and the shared common residence. The appeal was dismissed, and Mr Chin was ordered to pay Ms Bao's costs of the appeal in the sum of $27,996 within 28 days.
Orders
Orders of the court
NAA 215 of 2024
SYC 1198 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:
MR CHIN
Appellant
AND:
MS BAO
Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
4 FEBRUARY 2025
THE COURT ORDERS THAT:
1. The appeal is dismissed.
2. Within 28 days of the date of these orders, the appellant pay the respondent’s costs fixed in the sum of $27,996.
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
For the reasons that follow the appeal is dismissed.BACKGROUND The hearing before the primary judge occurred over eight days, on 11, 12, 26, and 27 August 2021, 29 and 30 September 2021, 1 October 2021, and 12 November 2021. Written submissions were filed on 31 May 2022 and 27 June 2022. It is unfortunate that the reasons for judgment were delivered, and orders made, more than two years after the filing of final written submissions. That said, no ground of appeal was directed to that significant efflux of time. The primary judge found:164 As the authorities indicate, it is not necessary to find that the parties shared a common residence in any particular time for the Court to find that the parties had a relationship as a couple living together on a genuine domestic basis and so were in a de facto relationship, but I accept [counsel for the respondent’s] submission that in the absence of a finding that the parties did share a common residence, there must certainly be sufficient evidence of some circumstance or circumstances of their relationship that shows that such was a relationship as a couple living together on a genuine domestic basis, whilst bearing in mind that no particular finding in relation to any circumstance is a necessary component of a finding of a de facto relationship. 165 The circumstances set out in subsection 4AA(2) are matters to be considered on the evidence and, where possible, relevant findings made. I am not satisfied that the parties at any time shared a common residence. I’m not satisfied that a sexual relationship existed between the parties beyond mid-2014. I find that there was no financial dependence or interdependence between the parties or any arrangements between them for financial support of one by the other.166 The parties acquired one property jointly, the [Suburb F] property, and I find that the circumstances surrounding that purchase tend towards a finding of a failed joint venture where one party was left “holding the bag” due to the others party’s failure to live up to the bargain, as opposed to it being a circumstance tending to show a commitment to a shared life or any other circumstance tending to identifying a relationship of the parties as a couple living together on a genuine domestic basis.167 I do not find that the whole of the evidence demonstrates on the part of either party such a degree of commitment to a shared life that it could be found to be a mutual commitment to a shared life. I also find that there is insufficient evidence of the parties having a reputation amongst family, friends or the public generally of the reputation being as a couple living together on a genuine domestic basis, a de facto relationship.168 The standard of proof required is the civil standard of the balance of probabilities – section 140 of the Evidence Act 1995 (Cth). The parties were at no time legally married to each other and they are not related by family. I am unable to find on the balance of probabilities that these parties were at any time in a relationship as a couple living together on a genuine domestic basis.169 Accordingly, the proper Order to be made is an Order dismissing the Initiating Application of the [appellant] filed 27 February 2019 on the basis that the Court is without jurisdiction to consider an alteration of interest in the property of the parties or either of them under section 90SM of the Family Law Act 1975 (Cth). (Emphasis added)THE APPEAL
Evidence
Evidence Before The Court
The ground fails as the factual error was not material to the outcome.Ground 14 – “The primary judge erred in giving no regard to the evidence of the [appellant’s] father, such evidence being largely unchallenged, and gave no reasons for so doing.” On appeal the appellant submitted that his father’s “testimony remained intact”. The reasons identify that the contentions by way of the ground, as constructed, are not available. The primary judge at [73] did not accept that the appellant’s father could recall a one-and-a-half-page verbatim conversation said to have occurred between the father and the respondent six years before his affidavit was sworn. A finding was made at [74] that the appellant’s father’s evidence was inconsistent with the evidence of the appellant as to where the appellant was living at particular periods of time and with whom he was living at those times. The reasons record that the evidence of the appellant’s father was challenged at trial, that the primary judge considered the evidence as challenged, and that this evidence was given reduced weight (at [130]). The appellant did not engage on appeal with the deficiencies in the evidence of his father as found by the primary judge and did not demonstrate that the findings of the primary judge as to the appellant’s father’s evidence were not reasonably open. Ground 14 fails.Ground 5 – “The primary judge erred in failing properly to evaluate the importance of the […] holiday which the parties undertook in [late] 2016 and during which the parties slept in the same bed in the same cabin.”Ground 6 – “The primary judge erred in failing properly to evaluate the importance of text and [social media] messages which passed between the parties in which terms of endearment were used.”Ground 7 – “The primary judge erred in failing properly evaluate the important of text and [social media] messages which passed between the Respondent and the [appellant’s] mother in which the Respondent used the words “mum” and “mom”.”Ground 8 – “The primary judge erred in failing properly to evaluate the evidence relating to any shared common residence of the parties.”Ground 10 – “The primary judge erred in not properly evaluating the evidence of the joint enterprise of the parties in the [Suburb D] [service business].”Ground 16 – “The primary judge erred in failing properly to evaluate the financial dependence and interdependence of the parties.”Ground 17 – “The primary judge erred in failing properly to evaluate the evidence relating to the joint purchase and subsequent sale of [Suburb F] property.”Ground 18 – “The primary judge erred in failing properly to evaluate the evidence of the circumstances and attendance of the parties to an IVF clinic in [Suburb H] and the continuing treatment given, so that the Respondent could conceive a child. The primary judge’s apparent findings relating to this matter were against the weight of the evidence and were logically improbable.”
Decision
Reasons for decision
The appellant conceded at the hearing of the appeal that the photographs “by themselves are not important” but submitted that when they are considered with social media messages (the subject of Ground 6), they assume aggregated importance. Notwithstanding the failure of Ground 6, that does not demonstrate on appeal how the context of a photograph was material to any of the intermediate indicia conclusions in the context of the whole of the reasons. This weight ground was always misconceived and fails.CONCLUSION AND COSTS The appeal will be dismissed. The respondent’s costs notice filed in resisting the appeal is itemised in accordance with Sch 3 of the Rules on a party and party basis at $27,996. In the event the appeal was dismissed, the appellant conceded that he could not be heard against an order for costs fixed in that sum. An order will be made for the appellant to pay the respondent’s costs of the appeal fixed in the sum of $27,996 within 28 days.
Ratio Decidendi
Legal Principle Established
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