Eide & Yoxall (No 2)

Case [2024] FedCFamC1F 320

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Eide & Yoxall (No 2) [2024] FedCFamC1F 320

File number(s): MLC 2724 of 2021
Judgment of: WILLIAMS J
Date of judgment: 16 May 2024
Catchwords:

FAMILY LAW – DE FACTO RELATIONSHIPS- Threshold issue – Where the applicant seeks a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) (“the Act”) that a de facto relationship did exist – Where the applicant bears the burden of proving the existence of a de facto relationship as defined by s 4AA of the Act – Where there is a child of the relationship – Where the respondent denies the existence of a de facto relationship – Where the court finds a de facto relationship existed between the parties.

FAMILY LAW – PRACTICE AND PROCEDURE – Application by the respondent for disqualification of the trial judge on the basis of apprehended bias based on comments made in the course of the trial – Where the applicant opposes the application – Consideration of the test in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 – Where the respondent’s application for disqualification is refused.

Legislation:

Evidence Act 1995 (Cth) s 140

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

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67)

Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth) Sch 1, Pt I, r 1(5)
Cases cited:

Bienstein v Beinstein (2003) 195 ALR 225; [2003] HCA 7

Cantu & Galloway [2023] FedCFamC1F 993

CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Fairbairn & Radecki (2022) 400 ALR 613; [2022] HCA 18

Fei & Woong [2021] FamCAFC 2

Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48

Jonah & White (2011) 45 Fam LR 460; [2011] FamCA 221

Jonah & White (2012) FLC 93-552; [2012] FamCAFC 200

Kartinyeri v Commonwealth of Australia (1998) 195 CLR 337; [1998] HCA 52

Lennon & Sanil (2020) FLC 93-962; [2020] FamCAFC 109

Livesey v NSW Bar Association (1983) 151 CLR 288; [1983] HCA 17

Lynam v Director-General of Social Security (1983) 52 ALR 128; [1983] FCA 274

Onslow & Onslow [2016] FamCAFC 7

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419; [2023] HCA 15

Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39

Scott & Munayallan [2022] FedCFamC1A 44

Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44

Velichkov & Velichkov [2024] FedCFamC1F 150

Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30

Whisprun Pty Ltd v Dixon (2003) 234 CLR 49; [2003] HCA 48
Division: Division 1 First Instance
Number of paragraphs: 212
Date of hearing: 26 – 28 June 2023; 4, 6, 7 September 2023 and…

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AGLC
Eide & Yoxall (No 2) [2024] FedCFamC1F 320
Case
[2024] FedCFamC1F 320
Decision Date

CaseChat Overview and Summary

In the case of Eide & Yoxall (No 2), the applicant, Mr Yoxall, sought a declaration under section 90RD of the Family Law Act 1975 (Cth) that a de facto relationship existed between him and the respondent, Ms Eide. The case was heard in the Federal Circuit and Family Court of Australia. Ms Eide denied the existence of such a relationship. The court was tasked with determining whether a de facto relationship existed between the parties and if so, for what period, as well as considering an application by Ms Eide for the disqualification of the trial judge on the grounds of apprehended bias.

The court considered the criteria set out in section 4AA of the Act, which defines a de facto relationship as one where the parties are not legally married or related by family, and they have a relationship as a couple living together on a genuine domestic basis. The court found that the parties had such a relationship, spanning from March 2017 to December 2020, despite Ms Eide's efforts to diminish the relationship in public. The court also rejected Ms Eide's application for the disqualification of the trial judge, finding no apprehended bias based on the test in Ebner v Official Trustee in Bankruptcy.

The court concluded that a de facto relationship existed between the parties from March 2017 to December 2020. The court made a declaration to this effect and referred all extant applications, including the applicant's application for financial and property orders, to the Case Management Judge for further scheduling. The court also ordered that both parties file and serve written submissions regarding costs, with a subsequent hearing to determine the question of costs if submissions were filed.

Orders

Orders of the court

MLC 2724 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR YOXALL

Applicant

AND:

MS EIDE

Respondent

ORDER MADE BY:

WILLIAMS J

DATE OF ORDER:

16 MAY 2024

THE COURT ORDERS THAT:

1. Pursuant to section 90RD of the Family Law Act 1975 (Cth), there be a declaration that a de facto relationship existed between the parties from March 2017 to December 2020.

THE COURT FURTHER ORDERS THAT:

2. All extant applications, including (but not limited to), the applicants’ application for financial and property orders in her Amended Initiating Application filed on 27 October 2022, be and are hereby referred to the Case Management Judge for fixing in due course as a defended hearing.

3. Within 28 days the applicant file and serve any written submissions as to costs, and email a copy of the submissions to my chambers.

4. Within 28 days of receipt of the applicant’s costs submissions, the respondent file and serve any written submissions as to costs, and email a copy of the submissions to my chambers.

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

Section 4AA(4) provides that “a court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case”. I do not consider it appropriate to attach much weight to the factor outlined in s 4AA(2)(i), as it is clear the respondents modus operandi was to diminish the parties relationship in public in an attempt to make it seem as though the parties were not in a de facto relationship, despite the reality of the situation being in stark opposition. CONCLUSION I find that the parties formally had “a relationship as a couple living together on a genuine domestic basis”. That evaluative factual finding emerges from the conglomeration of the considerations prescribed by s 4AA(2) of the Act which are referred to and considered in these reasons. Whilst it is impossible to say with precision the duration of the de facto relationship, I accept the relationship spanned from March 2017 to December 2020.COSTS Both parties sought costs from the other, in the event they succeeded in their respective applications before the court. I do not intend to address costs in these reasons but will make procedural orders for the filing of costs submissions. If submissions are filed, I will then list a hearing to determine the question of costs. For all the foregoing reasons, I now make those orders that appear at the commencement of these reasons.

Ratio Decidendi

Legal Principle Established

Pursuant to s 90RD, the court has the power to make a declaration about the existence of a de facto relationship. Section 90RD provides as follows:90RD Declarations about existence of de facto relationships (1) If:(a)an application is made for an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL; and (b)a claim is made, in support of the application, that a de facto relationship existed between the applicant and another person;the court may, for the purposes of those proceedings (the primary proceedings), declare that a de facto relationship existed, or never existed, between those 2 persons.(2)A declaration under subsection (1) of the existence of a de facto relationship may also declare any or all of the following:(a)the period, or periods, of the de facto relationship for the purposes of paragraph 90SB(a);(b) whether there is a child of the de facto relationship;(c)whether one of the parties to the de facto relationship made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c);(d) when the de facto relationship ended;(e) where each of the parties to the de facto relationship was ordinarily resident during the de facto relationship. The significance of a declaration being made as to the existence of a de facto relationship is that it provides a gateway for the making of orders pursuant to s 90SM and s 90SE relating to the alteration of property and maintenance as and between the parties to the de facto relationship, together with any declaratory (and consequential) orders in relation to the respective title or rights of the parties to property pursuant to s 90SL. Per Austin J in Cantu & Galloway [2023] FedCFamC1F 993 at [25], “a declaration as to the existence of a de facto relationship under s 90RD of the Act does not involve an exercise of judicial discretion (Jonah & White (2011) 45 Fam LR 460 at [39]). Rather, it is an evaluative factual determination, taking into account the criteria set out within s 4AA of the Act (Lennon & Sanil (2020) FLC 93-962 at [8])”. The meaning of a de facto relationship is defined by s 4AA, with the essential test being whether the parties had a “relationship as a couple living together on a genuine domestic basis”. Section 4AA of the Act states as follows:4AA De facto relationships Meaning of de facto relationship (1) A person is in a de facto relationship with another person if:(a)the persons are not legally married to each other; and (b)the persons are not related by family (see subsection (6)); and (c)having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.Paragraph (c) has effect subject to subsection (5).Working out if persons have a relationship as a couple (2) Those circumstances may include any or all of the following:(a)the duration of the relationship;(b)the nature and extent of their common residence;(c)whether a sexual relationship exists;(d)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;(e)the ownership, use and acquisition of their property;(f)the degree of mutual commitment to a shared life;(g)whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;(h)the care and support of children;(i)the reputation and public aspects of the relationship.(3)No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.(4)A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.(5)For the purposes of this Act:(a)a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and (b)a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.