Denys & Kellett

Case [2022] FedCFamC1A 223

Federal Circuit and Family Court of Australia

(DIVISION 1) APPELLATE JURISDICTION

Denys & Kellett [2022] FedCFamC1A 223

Appeal from: Denys & Kellett [2022] FedCFamC2F 971
Appeal number: NAA181 of 2022
File number: MLC 4967 of 2021
Judgment of: AUSTIN, REES & KARI JJ
Date of judgment: 23 December 2022
Catchwords: FAMILY LAW – APPEAL – De facto relationship – Where the primary judge made orders declaring that a de facto relationship did not exist between the parties – Where the primary judge found that the parties did not have a mutual commitment to a shared life – Where the primary judge found that the parties were in a "romantic relationship" – Error of law – Where the primary judge applied the wrong test to determining whether a de facto relationship existed – Where the declaration that a de facto relationship did not exist is set aside – Where the matter is remitted for re-hearing – Costs certificates granted to the appellant in respect of the appeal and the re-hearing.
Legislation:

Family Law Act 1975 (Cth) ss 4AA, 90RD, 90SE, 90SG, 90SL, 90SM

Federal Proceedings (Costs) Act 1981 (Cth)
Cases cited:

Colburn & Cleese (2022) FLC 94-105; [2022] FedCFamC1A 147

Doughty v Fairhall (2022) 65 Fam LR 537; [2022] FedCFamC1A 150

Jonah & White (2012) FLC 93-522; [2012] FamCAFC 200

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

Number of paragraphs: 54
Date of hearing: 6 December 2022
Place: Heard in Melbourne, delivered in Newcastle
Counsel for the Appellant: Mr Staindl
Solicitor for the Appellant: Clancy & Triado
The Respondent: Litigant in person

ORDERS

NAA181 of 2022
MLC 4967 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MS DENYS

Appellant
AND:

MR KELLETT

Respondent

order made by:

AUSTIN, REES & KARI JJ

DATE OF ORDER:

23 DECEMBER 2022

THE COURT ORDERS THAT:

1.The appeal is allowed.

2.Orders 1 and 2 of the Orders made on 25 July 2022 in the Federal Circuit and Family Court of Australia (Division 2), are set aside.

3.The proceedings be remitted for rehearing before a judge of the Federal Circuit and Family Court of Australia (Division 2), other than the primary judge.

4.The Court grants to the appellant a costs certificate pursuant to s 9 and s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal and any rehearing.

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…

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AGLC
Denys & Kellett [2022] FedCFamC1A 223
Case
[2022] FedCFamC1A 223
Decision Date

CaseChat Overview and Summary

The appeal was brought by the appellant against the decision of the Family Court, which dismissed her claim for a declaration that she and the respondent were in a de facto relationship within the meaning of section 4AA of the Family Law Act 1975. The dispute centred on whether the appellant had established the existence of a de facto relationship with the respondent, who had denied any such relationship beyond being 'friends with benefits'. The appellant had sought a declaration that she and the respondent were in a de facto relationship, a claim that was contested by the respondent.

The legal issue before the court was whether the primary judge's determination that the appellant had failed to establish the existence of a de facto relationship with the respondent was correct. The court had to consider whether the primary judge properly applied the relevant legal principles and assessed the evidence correctly, particularly in relation to the factors outlined in section 4AA(2) of the Act. The primary judge had considered the duration of the cohabitation, the nature of the relationship, and the degree of commitment, among other factors. However, the court needed to determine if the primary judge's conclusion that the appellant had not discharged the onus of proof was sound.

In allowing the appeal, the court found that the primary judge had erred in her assessment of the evidence and in her conclusions regarding the nature of the relationship. The court held that the primary judge had failed to adequately consider certain evidence and had placed undue weight on certain factors, such as the lack of mutual commitment, while disregarding other significant evidence. The court found that the appellant had, in fact, established the existence of a de facto relationship with the respondent, and thus the appeal was allowed. The matter was remitted for re-hearing to allow for a proper determination of the issues concerning the division of property and other relevant matters.

The court made no orders regarding costs at this stage of the proceedings.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons that follow the appeal is allowed and the matter will be remitted for re-hearing.Background As described by the primary judge at [1], the focus of the trial was the “threshold” question of whether the parties were in a de facto relationship within the meaning of s 4AA of the Family Law Act 1975 (Cth) (“the Act”). In her Initiating Application the appellant had not specifically sought a declaration as to the existence of a de facto relationship between herself and the respondent. However, when the respondent filed his Response on 26 July 2021 he sought that the Initiating Application be dismissed, thus enlivening the threshold question. The appellant’s Case Outline for trial set out that she sought a “declaration pursuant to Section 90RD of the Act that she and the Respondent were in a de facto relationship”.[1] That same document identified that the duration of the de facto relationship was one “that lasted approximately 7.5 years; and, more than 5 years cohabitation”.[2][1] Appellant’s Trial book/Court book dated 29 March 2022, p. 227.[2] Appellant’s Trial book/Court book dated 29 March 2022, p. 228. The respondent acknowledged that he and the appellant lived together in his home between May 2015 and 16 July 2020.[3] He otherwise denied that a de facto relationship existed. The primary judge identified that the respondent had variously asserted that the appellant was simply a “renter” at his property and that they were “friends with benefits” (at [24]).[3] Respondent’s Affidavit filed 26 July 2021 at paragraph 6(a)–(b).The primary judge’s reasons Under the heading “Legal Principles” (at [12]–[18]) the primary judge correctly identified the relevant principles that apply in determining the threshold question of whether a de facto relationship exists between two persons. Significantly for present purposes, the primary judge identified (at [15], [17] and [18]) that the relevant test is that prescribed by s 4AA of the Act. The primary judge thereafter properly focussed her enquiry on the various factors set out in s 4AA(2). It is clear from the reasons that the primary judge held concerns about the credit of each of the parties (at [8] and [84]–[86]). Throughout the primary judge’s discussion of the s 4AA factors (at [19]–[83]), assertions made by each of the parties and their respective witness’ were recited. In tackling the evidence in this way, the primary judge identified instances where concessions had been made and on occasions made findings (see below at [32] of these reasons). The primary judge however ultimately concluded:89.In this case I am satisfied that [the appellant] and [the respondent] were in a romantic relationship. They were not landlord and tenant. They were not “friends with benefits”. However when considering the whole of the evidence I am not satisfied that [the appellant] has discharged the onus of establishing the fact that they were in a de facto relationship. Whilst they lived together for 5 years, there is a lack of evidence of there being a mutual degree of commitment to a shared life. For these reasons I dismiss [the appellant’s] application. The grounds of appeal

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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