Denys & Kellett - [2022] FedCFamC2F 971

Federal Circuit and Family Court of Australia
(DIVISION 2)
Denys & Kellett [2022] FedCFamC2F 971

File number(s): MLC 4967 of 2021

Judgment of: JUDGE HARLAND

Date of judgment: 25 July 2022

Catchwords: FAMILY LAW – threshold hearing – whether or not the parties were in a de facto relationship – case turns on its facts

Legislation:
Family Law Act 1975 (Cth) ss 4AAA, 90RD

Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth)

Cases cited:
Fairburn and Radecki [2022] HCA 18

Jonah & White [2011] FamCA 221

Sinclair v Whittaker (2013) FLC 93-550

Malek, H, Phipson on Evidence (Thomson Reuters, 19^th edition, 2018)

Division: Division 2 Family Law

Number of paragraphs: 89

Date of hearing: 29 June, 30 June 2022 and 1 July 2022

Place: Melbourne

Counsel for the Applicant: Mr Staindl

Counsel for the Respondent: In person

Solicitor for the Applicant: Clancy and Triado
ORDERS

MLC 4967 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS DENYS

Applicant

AND:
MR KELLETT

Respondent

order made by:

JUDGE HARLAND

DATE OF ORDER:

25 July 2022

tHE COURT DECLARES THAT:
1.The parties were not in a de facto relationship pursuant to s 90RD of the Family Law Act 1975.

AND THE COURT ORDERS THAT:
2.The initiating application filed on 4 May 2021 be 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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Denys & Kellett has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE HARLAND:

The parties met via an online dating app in 2012. They met in person in late 2012. Ms Denys lived in Mr Kellett’s property from mid-2015 to mid-2020. These matters are agreed. The dispute centres on the nature of the parties’ relationship. The sole issue for determination at this threshold hearing is whether or not the parties were in a de facto relationship. I will refer to the applicant as Ms Denys and the respondent as Mr Kellett. I intend no disrespect to the parties and do this to make the reasons easier to read.
Ms Denys says they were in a de facto relationship for 7.5 years. Ms Denys did not particularise her claim for property adjustment orders. Her first affidavit addressed issues relevant to those matters as she was not aware…

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 Denys & Kellett

Details

AGLC: Denys & Kellett [2022] FedCFamC2F 971
Case: [2022] FedCFamC2F 971
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia was required to determine whether the parties were in a de facto relationship. The court found that the parties were in a romantic relationship, but it did not meet the threshold of a de facto relationship as defined under the Family Law Act 1975. The parties met via an online dating app in 2012, and Ms Denys moved into Mr Kellett's property in 2015. The central issue was the nature of their relationship, with Ms Denys asserting they were in a de facto relationship for 7.5 years and Mr Kellett denying this, claiming they were never more than friends. The court considered various factors, such as the duration of the relationship, the nature and extent of their common residence, the degree of financial dependence or interdependence, and the degree of mutual commitment to a shared life. Although the parties shared a common residence and had a sexual relationship, the court found that there was a lack of evidence of a mutual degree of commitment to a shared life, which is a key factor in determining a de facto relationship. Therefore, the court concluded that the parties were not in a de facto relationship and dismissed Ms Denys's application.

Orders