Chin & Bao - [2024] FedCFamC2F 984

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Chin & Bao [2024] FedCFamC2F 984

File number(s): SYC 1198 of 2019

Judgment of: JUDGE MORLEY

Date of judgment: 26 July 2024

Catchwords: FAMILY LAW – property – whether the parties were in a de facto relationship – the Applicant alleges that the parties were in a de facto relationship from late 2013 to February 2017 – the Respondent alleges that the parties were in a relationship from late 2013 to mid-2014 and friends from mid-2014 to February 2017 – where the parties have joint property

Legislation:
Family Law Act 1975 (Cth) ss 4AA, 79, 90SM

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 8.19, 8.15(3)

Cases cited:
Calverley v Green (1984) 155 CLR 242

Fairbairn v Radecki [2022] HCA 18

Jonah & White [2012] FamCAFC 200; (2012) 48 Fam LR 56

Sandison v Thornhill (No 2) [2023] FedCFamC1F 262

Sinclair & Whittaker [2013] FamCAFC 129; (2013) FLC 93-551

Taisha & Peng and Anor [2012] FamCA 385; (2013) 48 Fam LR 150

Yesilhat v Calokerinos [2021] NSWCA

Division: Division 2 Family Law

Number of paragraphs: 169

Date of last submission/s: 27 June 2022

Date of hearing: 11-12, 26-27 August; 29-30 September; 1 October and 12 November 2021

Place: Heard in Sydney, Delivered in Parramatta

Counsel for the Applicant: Mr Morahan

Solicitor for the Applicant: Chen Shan Lawyers

Counsel for the Respondent: Mr Othen

Solicitor for the Respondent: Unified Lawyers
ORDERS

SYC 1198 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR CHIN

Applicant

AND:
MS BAO

Respondent

ORDER MADE BY:

JUDGE MORLEY

DATE OF ORDER:

26 JULY 2024

THE COURT ORDERS ON A FINAL BASIS THAT:
1.The Initiating Application filed by the Applicant on 27 February 2019 is dismissed.
2.All extant applications be otherwise dismissed.

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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MORLEY
INTRODUCTION

MR CHIN (“the Applicant”) and MS BAO (“the Respondent”) met online in late 2013 and certainly became friends. The Applicant contends that a de facto relationship existed between them from December 2013 until February 2017. The Respondent denies they were ever in a de facto relationship. If the Court finds 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 Chin & Bao

Details

AGLC: Chin & Bao [2024] FedCFamC2F 984
Case: [2024] FedCFamC2F 984
Decision Date: 26 July 2024

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia heard a dispute between Mr Chin and Ms Bao concerning the existence of a de facto relationship and the division of their joint property. Mr Chin alleged that he and Ms Bao were in a de facto relationship from late 2013 until February 2017. In contrast, Ms Bao claimed that the relationship was de facto only from late 2013 to mid-2014, after which they were merely friends until February 2017. The court needed to determine the nature of the relationship and whether the parties were in a de facto relationship during the relevant periods. This determination was crucial for the division of their joint property.

The court examined the nature of the relationship by assessing various factors, including the degree of financial interdependence, the nature and history of the association, whether a sexual relationship existed, the length of the relationship, and the extent of any common residence. The court found that while the parties shared a residence and had a sexual relationship, the degree of financial interdependence was limited, and there was no pooling of resources beyond what was typical of friends. The court concluded that the relationship transitioned from a de facto relationship to that of mere friends in mid-2014, based on the evidence presented.

Consequently, the court dismissed Mr Chin's initiating application, finding that the parties were not in a de facto relationship from mid-2014 to February 2017. All other applications were also dismissed. The court's decision hinged on the specific circumstances of the relationship and the evidence provided by both parties. The final order reflects the court's determination on the nature of the relationship and its impact on the division of property.

Orders

Orders of the court

SYC 1198 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR CHIN

Applicant

AND:

MS BAO

Respondent

ORDER MADE BY:

JUDGE MORLEY

DATE OF ORDER:

26 JULY 2024

THE COURT ORDERS ON A FINAL BASIS THAT:

1. The Initiating Application filed by the Applicant on 27 February 2019 is dismissed.

2. All extant applications be otherwise dismissed.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	SYC 1198 of 2019
Judgment of:	JUDGE MORLEY
Date of judgment:	26 July 2024
Catchwords:	FAMILY LAW – property – whether the parties were in a de facto relationship – the Applicant alleges that the parties were in a de facto relationship from late 2013 to February 2017 – the Respondent alleges that the parties were in a relationship from late 2013 to mid-2014 and friends from mid-2014 to February 2017 – where the parties have joint property
Legislation:	Family Law Act 1975 (Cth) ss 4AA, 79, 90SM Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 8.19, 8.15(3)
Cases cited:	Calverley v Green (1984) 155 CLR 242 Fairbairn v Radecki [2022] HCA 18 Jonah & White [2012] FamCAFC 200; (2012) 48 Fam LR 56 Sandison v Thornhill (No 2) [2023] FedCFamC1F 262 Sinclair & Whittaker [2013] FamCAFC 129; (2013) FLC 93-551 Taisha & Peng and Anor [2012] FamCA 385; (2013) 48 Fam LR 150 Yesilhat v Calokerinos [2021] NSWCA
Division:	Division 2 Family Law
Number of paragraphs:	169
Date of last submission/s:	27 June 2022
Date of hearing:	11-12, 26-27 August; 29-30 September; 1 October and 12 November 2021
Place:	Heard in Sydney, Delivered in Parramatta
Counsel for the Applicant:	Mr Morahan
Solicitor for the Applicant:	Chen Shan Lawyers
Counsel for the Respondent:	Mr Othen
Solicitor for the Respondent:	Unified Lawyers

SYC 1198 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR CHIN Applicant
AND:	MS BAO Respondent

ORDER MADE BY:	JUDGE MORLEY
DATE OF ORDER:	26 JULY 2024