Crick & Bennett

Case [2018] FamCAFC 68

FAMILY COURT OF AUSTRALIA

CRICK & BENNETT [2018] FamCAFC 68

FAMILY LAW – APPEAL – DECLARATION OF DE FACTO RELATIONSHIP – Appeal from declaration of a de facto relationship pursuant to s 90RD of the Family Law Act 1975 (Cth) (“the Act”) – Adequacy of reasons as to why one party’s evidence was preferred over the other’s – Whether her Honour erred by finding that the parties “presented as a couple” and whether that phrase added an impermissible gloss to the primary judge’s analysis under s 4AA of the Act – Whether findings made by the primary judge were open on the evidence – Whether errors of fact made by the primary judge were material – Whether the finding of a de facto relationship was against the weight of the evidence – No appealable error established – Appeal dismissed – Appellant ordered to pay the respondent’s costs of the appeal, except in respect of the respondent’s unsuccessful application to adduce further evidence.

FAMILY LAW – LEAVE TO APPEAL – Where declarations pursuant to s 90RD of the Act are final orders and leave to appeal is not required.

FAMILY LAW – APPLICATION IN AN APPEAL – FURTHER EVIDENCE – Where the evidence is not relevant to the issues raised in the appeal – Application dismissed.
Family Law Act 1975 (Cth) ss 4AA, 90RD, 90SM, 93A(2), 94AAA, 94AA

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148

Cadman & Hallett (2014) FLC 93-603; [2014] FamCAFC 142

Cuan & Kostelac (2017) FLC 93-801; [2017] FamCAFC 188
De Winter and De Winter (1979) FLC 90-605
Fleming & Schmidt [2017] FamCAFC 12
Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; [2006] NSWCA 187
Jonah & White (2012) FLC 93-522; [2012] FamCAFC 200
Onslow & Onslow [2016] FamCAFC 7
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Sha & Chan [2017] FamCAFC 161

Sinclair & Whittaker (2013) FLC 93-551; [2013] FamCAFC 129
APPELLANT: Mr Crick
RESPONDENT: Ms Bennett
FILE NUMBER: PAC 2610 of 2016
APPEAL NUMBER: EA 25 of 2017
DATE DELIVERED: 13 April 2018
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Ainslie-Wallace, Aldridge & Watts JJ
HEARING DATE: 20 October 2017
LOWER COURT JURISDICTION: Federal Circuit Court of Australia
LOWER COURT JUDGMENT DATE: 28 February 2017
LOWER COURT MNC: [2017] FCCA 329

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Williams with Mr O'Reilly
SOLICITOR FOR THE APPELLANT: Broun Abrahams Burreket
COUNSEL FOR THE RESPONDENT: Ms Snelling
SOLICITOR FOR THE RESPONDENT: Valenti & Valenti Solicitors

Orders

  1. The appeal is dismissed.

  2. The appellant is to pay the respondent’s costs of the appeal, excluding the costs of the application to adduce further evidence, as agreed or in default of agreement as assessed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

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AGLC
Crick & Bennett [2018] FamCAFC 68
Case
[2018] FamCAFC 68
Decision Date

CaseChat Overview and Summary

The appeal before the court involved a dispute regarding a declaration of a de facto relationship under section 90RD of the Family Law Act 1975 (Cth). The appellant contested the primary judge's decision, asserting that the evidence presented did not support the finding that the parties were in a de facto relationship. The appellant also argued that the primary judge's reasons were inadequate and that the phrase "presented as a couple" was an impermissible gloss on the analysis under section 4AA of the Act. The appeal was brought to the court without the need for leave, as declarations under section 90RD are considered final orders.

The central legal issues in the appeal were whether the primary judge's findings were supported by the evidence, and if the reasons provided were sufficient. The court needed to determine if the primary judge had erred in preferring one party's evidence over the other, and whether the phrase "presented as a couple" added an impermissible gloss to the analysis. Additionally, the court had to assess whether any factual errors made by the primary judge were material and whether the finding of a de facto relationship was against the weight of the evidence.

The court found that no appealable error was established in the primary judge's decision. The court concluded that the primary judge's findings were open on the evidence, and that the reasons provided were adequate. The phrase "presented as a couple" did not add an impermissible gloss to the analysis, and any factual errors made by the primary judge were not material. The court determined that the finding of a de facto relationship was not against the weight of the evidence. Consequently, the appeal was dismissed.

The court ordered that the appeal be dismissed and that the appellant pay the respondent's costs of the appeal, excluding the costs of the application to adduce further evidence. The form of the order was subject to the entry of the order in the Court’s records.

Orders

Orders of the court

1.

The appeal is dismissed.

2.

The appellant is to pay the respondent’s costs of the appeal, excluding the costs of the application to adduce further evidence, as agreed or in default of agreement as assessed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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