FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Khoi & Khoi (No 2) [2024] FedCFamC2F 61
File number: MLC 9955 of 2021 Judgment of: JUDGE TURNBULL Date of judgment: 31 January 2024 Catchwords: FAMILY LAW – DE FACTO RELATIONSHIPS – whether a de facto relationship exists – declaration sought pursuant to s 90RD – where there is disputed and complex factual history – where failure to call witnesses enlivens the Rule in Jones & Dunkel Legislation: Family Law Act 1975 (Cth) ss 4AA, 90SM(1), s90RD Evidence Act 1995 (Cth) ss 91, 128(1) Cases cited: Australian Securities and Investments Commission v Rich [2009] NSWSC 1229
Blatch v Archer (1774) 98 ER 969
Cadman & Hallett (2014) FLC 93-603
Crandall & Crandall [2009] FamCAFC 120
Crick & Bennett [2018] FamCAFC 68; (2018) FLC 93-832
Crowley & Pappas [2013] FamCA 783
Cuan & Kostelac (2017) FLC 93-801
Elias & Elias (1977) FLC 90-267
Fabre v Arenales (1992) 27 NSWLR 437
Fairbairn v Radecki (2022) 64 Fam LR 604
Fleming & Schmidt [2017] FamCAFC 12
Halstron & Halstron [2021] FamCA 437
Herford & Burke (No 2) (2019) FLC 93-919
Jonah & White (2012) FLC 93-522
Jones v Dunkel [1959] HCA 8; 101 CLR 298
Jordan & Jordan (1997) FLC 92-736
JPJD & DADJ [2005] FMCAfam 86
Kuhl v Zurich Financial Services [2011] HCA 11; (2011) 243 CLR 361
Lavell & Lavell [2012] FamCA 34
Nelson & Nelson (1995) 184 CLR 538
Khoi & Khoi [2022] FedCFamC2F 932
Norton & Locke [2013] FamCAFC 202
Onslow & Onslow [2016] FamCAFC 7
Sandison & Thornhill (No 2) [2023] FedCFamC1F 262
Sha & Cham [2017] FamCAFC 161
Shelby & Rylan [2022] FedCFamC1A 143
Sinclair & Whitaker [2013] FamCAFC 129; (2013) FLC 93-551
Tang & Vo [2016] FCCA 880
Tomson & MacLaren [2021] FamCA 620
Division: Division 2 Family Law Number of paragraphs: 296 Date of hearing: 19–20 May (Hobart by Teams) - 8 June 2022 (City C by Teams s 128 submissions) - 9 June (City C – delivery of s 128 decision) - 21-23 November 2022 (Hobart by Teams) - 24-25 November 2022 (Melbourne) - 13 December 2022 (City D by Teams) – 15-16, 22-23 June 2023 (Melbourne) – 3-4 August 2023 (Hobart by Teams). Place: Hobart, Melbourne, City C, City D – delivered in City E Counsel for the Applicant: Ms Wilson Solicitor for the Applicant: Doan Legal until 15 February 2023 and then RRR Lawyers Solicitor Advocate for the Respondent: Mr Rothschild Solicitor for the Respondent: Brendan Rothschild Legal Group ORDERS
MLC 9955 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR KHOI
Applicant
AND: MS KHOI
Respondent
ORDER MADE BY:
JUDGE TURNBULL
DATE OF ORDER:
31 JANUARY 2024
THE COURT DECLARES AND ORDERS THAT:
1.It is declared, pursuant to s 90RD(1) of the Family Law Act 1975 (‘the Act’) , that a de facto relationship never existed between the Applicant and the Respondent.
2.Within 14 days of the date of these orders the Applicant, at…
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CaseChat Overview and Summary
The court found that a de facto relationship never existed between the parties, based on the parties' written submissions and the failure of Mr Khoi to call any witnesses. The court invoked the Rule in Jones & Dunkel, which provides that a party who fails to call witnesses can be held to have abandoned their case. The court held that the onus was on Mr Khoi to prove the existence of a de facto relationship, and that he had not discharged this onus. The court also found that Mr Khoi had lodged caveats on properties held by Ms Khoi, and ordered him to remove them within 14 days. The court further ordered the parties to exchange financial statements and written submissions regarding costs, with the intention of deciding the costs on the papers.
The court dismissed all other extant applications and discharged all other extant orders, save for the orders made in these proceedings and any costs orders made during the life of the proceedings. The court also noted that this copy of its reasons for judgment may be subject to review or variation under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Orders
Orders of the court
MLC 9955 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR KHOI
Applicant
AND:
MS KHOI
Respondent
ORDER MADE BY:
JUDGE TURNBULL
DATE OF ORDER:
31 JANUARY 2024
THE COURT DECLARES AND ORDERS THAT:
1. It is declared, pursuant to s 90RD(1) of the Family Law Act 1975 (‘the Act’) , that a de facto relationship never existed between the Applicant and the Respondent.
2. Within 14 days of the date of these orders the Applicant, at his own expense, remove all and any caveats and/or encumbrance lodged by him and/or on his behalf against the title to any property held in the Respondent’s name (either solely or jointly) and/or any property in which she holds an interest — equitable or otherwise.
3. If the Respondent intends to pursue her application for costs she must make, file, and serve, within 21 days of the date of these orders:
(a) A fully completed, up to date, Financial Statement; and
(b) Written submissions (of no longer than 10 pages) addressing the factors set out in s117(2A) of the Act, the amount of costs sought based on the relevant scale/tables to be applied and any other relevant matter —
Failing of which her application for costs is dismissed.
4. If the Respondent complies with paragraph 3 of these orders, then the Applicant must make, file, and serve, within 21 days of receiving the Respondent’s documents:
(a) A fully completed, up to date, Financial Statement; and
(b) Written submissions (of no longer than 10 pages) addressing the factors set out in s117(2A) of the Act, and any other relevant matter —
With the intent, subject to leave, that the decision regarding costs will be made on the papers.
5. Save for these orders, and any costs orders made during the life of the proceedings, all extant orders are discharged.
6. All extant applications, including the Application filed 8 September 2021, are 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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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