Jiao & Dong

Case [2021] FCCA 1598

FEDERAL CIRCUIT COURT OF AUSTRALIA

Jiao & Dong [2021] FCCA 1598

File number(s): PAC 3284 of 2019
Judgment of: JUDGE NEWBRUN
Date of judgment: 14 July 2021
Catchwords: FAMILY LAW – de facto property adjustment proceedings – threshold hearing – declaration that de facto relationship existed made
Legislation:

Family Law Act 1975 (Cth), ss 4AA, 44, 79, 90RD

Migration Regulations 1994 (Cth), Schedule 2, cdn 801

Cases cited:

Crick & Bennett [2018] FamCAFC 68

Marriage of Jacenko (1986) 11 Fam LR 341

Sharp v Sharp (2011) 50 Fam LR 567

In the Marriage of Althaus (1979) 8 Fam LR 169
Number of paragraphs: 93
Date of last submission/s: 29 March 2021
Date of hearing: 29 March 2021
Place: Parramatta
Counsel for the Applicant: Mr Bank
The Respondent appeared in person

ORDERS

PAC 3284 of 2019
BETWEEN:

MR JIAO

Applicant
AND:

MS DONG

Respondent

ORDER MADE BY:

JUDGE NEWBRUN

DATE OF ORDER:

14 JULY 2021

PENDING FURTHER ORDER THE COURT ORDERS THAT:

1.The Court declares, pursuant to s90RD(1) of the Family Law Act 1975 (Cth) (“the Act”), that the parties were in a de facto relationship, within the meaning of section 4AA of the Act, from about 2012 to December 2018.

2.The parties are directed to attend Conciliation Conference before a Registrar of this Court on a date to be advised.

3.Direct the parties, within 28 days, to provide updating financial disclosure to each other.

4.The proceedings are adjourned to 4 November 2021 at 9:30am for mention.

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 under the pseudonym Jiao & Dong is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE NEWBRUN:

INTRODUCTION

  1. These reasons for judgment relate to the determination of the Applicant Husband’s application for a declaration that a de facto relationship existed between the parties during the period from about 2012 to December 2018. 

  2. In the alternative, the Husband makes an application for leave pursuant to section 44(3) of the Family Law Act 1975 (Cth) (the Act) to commence property proceedings, pursuant to section 79 of the Act out of time.

  3. The Wife opposed the Husband’s above proposed declaration and application for leave in the alternative.

  4. A threshold hearing was held in relation to the above applications of the Husband and cross-examination was permitted by the parties. Both parties were cross-examined. One of two lay witnesses for the Husband was cross-examined. The Wife represented herself and the Husband was legally represented.

  5. For ease of reference, in these Reasons the Applicant shall be referred to as the Husband, and the Respondent as the Wife.

    PROPOSALS AND MATERIAL RELIED UPON

  6. The Husband’s proposed Orders were set out in his Amended Initiating Application filed 25 September 2019.

  7. The Husband relied upon the documents referred to on page 1 of his Amended…

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AGLC
Jiao & Dong [2021] FCCA 1598
Case
[2021] FCCA 1598
Decision Date

CaseChat Overview and Summary

In the matter of *Jiao & Dong*, heard before Newbrun J in the Federal Circuit and Family Court of Australia, Mr Jiao was the applicant and Ms Dong was the respondent. The central dispute concerned the existence and duration of a de facto relationship between the parties, which was a prerequisite for the Court to make property settlement orders under the *Family Law Act 1975* (Cth).

The Court was required to determine whether the parties had been in a de facto relationship within the meaning of section 4AA of the Act, and if so, for what period. This determination necessitated an examination of all the circumstances of their relationship, including, but not limited to, the matters set out in section 4AA(2) of the Act, to ascertain if they were a couple living together on a genuine domestic basis.

Newbrun J found that the parties were in a de facto relationship from approximately 2012 to December 2018. In reaching this conclusion, the Court expressed significant reservations regarding the reliability of the respondent's evidence, noting several inconsistencies and contradictions. These included discrepancies in dates of separation provided to Centrelink and in affidavits, conflicting accounts of divorce proceedings, and shifting explanations regarding financial assistance received for a property purchase. The Court also noted that the respondent's brother, who allegedly provided financial assistance, did not provide an affidavit to the Court.

The Court declared, pursuant to s90RD(1) of the *Family Law Act 1975* (Cth), that the parties were in a de facto relationship from about 2012 to December 2018. The parties were directed to attend a Conciliation Conference, provide updating financial disclosure within 28 days, and the proceedings were adjourned for mention on 4 November 2021.

Orders

Orders of the court

PAC 3284 of 2019

BETWEEN:

MR JIAO

Applicant

AND:

MS DONG

Respondent

ORDER MADE BY:

JUDGE NEWBRUN

DATE OF ORDER:

14 JULY 2021

PENDING FURTHER ORDER THE COURT ORDERS THAT:

1. The Court declares, pursuant to s90RD(1) of the Family Law Act 1975 (Cth) (“the Act”), that the parties were in a de facto relationship, within the meaning of section 4AA of the Act, from about 2012 to December 2018.

2. The parties are directed to attend Conciliation Conference before a Registrar of this Court on a date to be advised.

3. Direct the parties, within 28 days, to provide updating financial disclosure to each other.

4. The proceedings are adjourned to 4 November 2021 at 9:30am for mention.

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In resolving the issue of the existence of the parties’ de facto relationship, the Court is required to have regard to all the circumstances of the parties’ relationship and determine whether they had a relationship as a couple living together on a genuine domestic basis. Those “circumstances” may include any or all of the matters set out in section 4AA(2) of the Act. The Court now proceeds to consider the circumstances of the parties’ relationship and make findings.EVIDENCE At the outset, the Court should state that it had concerns with the reliability of the Wife’s evidence. For example, in the Wife’s copy of the Centrelink document signed by her on 28 November 2017, she states in question 10 that she separated from the Husband in 2008 whereas in her Affidavit filed 2 September 2019, paragraph 3, she asserts that the parties’ separated on 21 December 2010. The Court observes that in the statement of the Wife at item 83 of the Centrelink document, she declares that the information provided in the form is complete and correct, and that she understands, inter alia, that giving false or misleading information is a serious offence. In question 14 of the Centrelink document, she asserts that she has filed for divorce (from the Husband) in 2009, whereas the divorce proceedings in the Federal Magistrates Court of Australia were instituted in 2012. As to the Wife’s assertion in her Affidavit filed 2 September 2019 that her brother gifted her $200,000 to assist in the purchase of D Street, Suburb E (“the D Street, Suburb E property”), in cross examination the Wife stated that she could not recall the exact amount that her brother had given her because at that time she was suffering from serious depression. She had stated that she was able to contact her brother and confirmed that he had not provided an Affidavit to the Court. Later, in cross examination, when it was put to the Wife, on behalf the Husband, that $100,000 was lent to the parties by the Wife’s brother to assist in the purchase of the D Street, Suburb E property, the Wife stated that not only her brother, but her sister and nephew had helped her with the purchase of the D Street, Suburb E property; this evidence was contrary to her Affidavit filed 2 September 2019 which had alleged that it was only her brother that had financially assisted the Wife in the purchase of the D Street, Suburb E property, apart from the mortgage loan from ANZ bank. As to the Wife’s assertions in her Affidavit filed 28 October 2020 in relation to paying her mortgage in late 2013, the Wife conceded in cross examination that prior to purchasing the D Street, Suburb E property (which property had been purchased in about mid 2014), she did not own any other properties in Australia, and moreover that she had no mortgage indebtedness prior to purchasing the D Street, Suburb E property. Accordingly, the Court proceeds with significant caution in relation to the Wife’s evidence. The following recitation of facts represents findings by the Court unless a contrary intention appears.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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