JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: G -v- O [2022] WASCA 23
CORAM: MURPHY JA
PRITCHARD JA
MORRISON AJA
HEARD: 19 MAY 2021
DELIVERED : 23 FEBRUARY 2022
FILE NO/S: CACV 33 of 2020
CACV 95 of 2020
BETWEEN: G
Appellant
AND
O
Respondent
ON APPEAL FROM:
Jurisdiction : FAMILY COURT OF WESTERN AUSTRALIA
Coram: MONCRIEFF J
Citation: G and O [2020] FCWA 27; [2020] FCWA 135
File Number : PTW 5149 of 2010
Catchwords:
Family law - Application for de facto property settlement - Whether parties in a de facto relationship - Whether primary judge erred in fact or law in failing to make finding as to whether appellant believed she was in a long‑term committed relationship - Whether parties in 'marriage‑like' relationship - How common intention to form enduring union established - Whether parties' subjective intention or belief as to de facto relationship relevant
Costs appeal - Indemnity costs - Whether primary judge erred in exercise of discretion as to costs in ordering costs be paid on indemnity basis
Legislation:
Family Court Act 1991 (WA), s 36(4)(b), s 205ZG, s 211(3), s 237
Interpretation Act 1984 (WA), s 13A
Result:
Appeal dismissed
Category: A
Representation:
Counsel:
| Appellant | : | Dr P R MacMillan |
| Respondent | : | Dr R S Ingleby |
Solicitors:
| Appellant | : | Gibson Lyons Lawyers |
| Respondent | : | O'Sullivan Davies Lawyers |
Case(s) referred to in decision(s):
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424
Chan v Mazurkiewicz [2015] WASC 432
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248
D & D (Costs) (No 2) (2010) FLC 93-435
D v B [No. 2] [2012] WASCA 265
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
G v O [2018] WASCA 211; (2018) 53 WAR 393
H v P [2011] WASCA 78
Joyce v Anderson [2020] WASCA 48
Kohan and Kohan (1993) FLC 92-340
Lee v Lee [2019] HCA 28; (2019) 93 ALJR 993
Munday v Bowman (1997) FLC 92-784
MW v Department of Community Services [2008] HCA 12; (2008) 82 ALJR 629
Pelka v Secretary, Department of Family and Community Services [2006] FCA 735; (2006) 151 FCR 546
Phillips and Hansford [2020] FamCAFC 28
Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164
Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S)
Yunghanns and Yunghanns (2000) FLC 93-029
TABLE OF CONTENTS
Overview of the reasons of the primary judge
(a) The length of the relationship between them
(b) Whether the two persons have resided together
(c) The nature and extent of common residence
(d) Whether there is, or has been, a sexual relationship between them
(e) The degree of financial dependence or interdependence, and any arrangements for…
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- AGLC
- G v O [2022] WASCA 23
- Case
- [2022] WASCA 23
- Decision Date
CaseChat Overview and Summary
The court had to decide whether subjective intentions of the parties, if held in common and manifested in their conduct, were relevant to establishing the existence of a marriage-like relationship. The court also examined the appropriate weight to be given to such evidence, distinguishing between direct evidence and admissions against interest. The reasoning of the court focused on the objective manifestation of the parties' intentions in their conduct, rather than solely on their subjective beliefs. The court held that while subjective intentions could be relevant, they needed to be substantiated by tangible actions and circumstances that demonstrated the nature of the relationship.
Ultimately, the court concluded that direct evidence of subjective intention could be probative if it aligned with admissions against interest, but its weight would be diminished if it were self-serving. The court emphasised that the best evidence of actual intention would be inferred from the parties' conduct. The court's reasoning underscored the importance of objective manifestations of the parties' intentions in determining the existence of a marriage-like relationship.
The court's decision clarified the role of subjective intentions and objective conduct in assessing the nature of a relationship under the relevant legislation, providing guidance for future cases involving similar disputes.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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