Kendell & Vilmos - [2022] FedCFamC2F 1484

Federal Circuit and Family Court of Australia
(DIVISION 2)
Kendell & Vilmos [2022] FedCFamC2F 1484

File number(s): ADC 641 of 2019

Judgment of: JUDGE BROWN

Date of judgment: 4 November 2022

Catchwords: FAMILY LAW – De facto relationship – application for declaration that de facto relationship existed between applicant and respondent – parties involved with one another in a variety of contexts between 1994 and 2017 – jurisdictional prerequisites of de facto relationship – whether parties living together on a genuine domestic basis – burden of proof – whether applicant has satisfied onus of proof as to existence of de facto relationship.

Legislation:
Evidence Act1995 (Cth) s 140

Family Law Act 1975 (Cth) Pt VIIIAB, ss 4AA, 4AB, 90RA, 90RD, 90SB, 90SK, 90SM

Commonwealth Powers (De facto Relationship) Act 2009 (South Australia)

Cases cited:
Fairbairn v Radecki (2022) 400 ALR 611

Fox v Percy (2003) 214 CLR 118, 129

Gillam & Barre [2022] FedCFamC1F 465

Jonah v White (2012) 45 FamLR 45

Jones & Dunkel (1959) 101 CLR 298

Lynam v Director-General of Social Security (1983) 52 ALR 128

Moby & Schulter (2010) FLC 93-447

Railpro Service Pty Ltd v Flavel [2015] FCA 504

RPS v R (2000) 199 CLR 620

Sinclair & Whittaker (2013) FLC 93-551

Taisha v Peng (2013) 48 FamLR 150

Division: Division 2 Family Law

Number of paragraphs: 323

Date of last submission/s: 27 June 2022

Date of hearing: 26, 27 & 28 April 2022

Place: Adelaide

Counsel for the Applicant: Mr Roberts

Solicitor for the Applicant: Robert Chrzaszcz & Associates

Counsel for the Respondent: Mr Richards

Solicitor for the Respondent: Tessa Hume
ORDERS

ADC 641 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS KENDELL

Applicant

AND:
MR VILMOS

Respondent

order made by:

JUDGE BROWN

DATE OF ORDER:

4 november 2022

THE COURT ORDERS THAT:
Upon noting that the Court declines to make any declaration pursuant to section 90RD of the Family Law Act 1975 (Cth).
1.The Application filed on 19 February 2019 is hereby dismissed and the proceedings are otherwise finalised.

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 Kendell & Vilmos has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION

Ms Kendell and Mr Vilmos have known each other since 1994. They met…

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 Kendell & Vilmos

Details

AGLC: Kendell & Vilmos [2022] FedCFamC2F 1484
Case: [2022] FedCFamC2F 1484
Decision Date

CaseChat Overview and Summary

The applicant, Ms Kendell, applied to the court for a declaration that a de facto relationship existed between herself and the respondent, Mr Vilmos, for the purposes of the Family Law Act 1975 (Cth) (the Act). The court found that there was no de facto relationship between the parties which existed after 1 July 2010. The court dismissed the application. The court found that although the parties were involved with one another for a significant period, the nature of their relationship changed over time. The court found that after 1 July 2010, the parties were not living together on a genuine domestic basis, as required by section 4AA of the Act. The court found that Ms Kendell was dishonestly misappropriating funds from Mr Vilmos’ business, which was not consistent with a de facto relationship existing between them. The court found that the parties were friends, and had an informal employment arrangement, but this was not a de facto relationship.

Orders