Lao and Wei - [2018] FamCA 893

FAMILY COURT OF AUSTRALIA

LAO & WEI

[2018] FamCA 893

FAMILY LAW – DE FACTO RELATIONSHIP – Whether the parties were in a de facto relationship for a period after their divorce –Where the husband’s evidence lacked credibility – Where some aspects of the wife’s evidence were implausible – Where contemporaneous evidence suggested that the parties were in a de facto relationship – Where the parties remained in a sexual relationship until July 2016 – Where the parties were financially intertwined – Where the parties continued to have a shared life – Where the relationship was viewed by persons as one of husband and wife – Declaration made that the parties were in a de facto relationship.

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

Jonah v White [2011] FamCA 221
Moby v Schulter (2010) FLC 93-447
KQ v HAE [2007] 2Qd R 32
Vaughan v Bele [2011] FamCA 436
Taisha & Peng [2012] FamCA 385
JRR v PH [2005] QSC 253
Zau v Uongh [2013] FamCA 347

APPLICANT:

Ms Lao

RESPONDENT:

Mr Wei

FILE NUMBER:

MLC

7788

2016

DATE DELIVERED:

6 November 2018

PLACE DELIVERED:

Cairns

PLACE HEARD:

Melbourne

JUDGMENT OF:

Tree J

HEARING DATE:

1, 2 and 3 October 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Love

SOLICITORS FOR THE APPLICANT:

Australian Legal Advisory Centre

COUNSEL FOR THE RESPONDENT:

Mr Combes

SOLICITORS FOR THE RESPONDENT:

Argent Law and Christopher William Legal

Orders

Pursuant to s 90RD of the Family Law Act, the Court declares that the parties were in a de facto relationship between 15 November 2010 and 13 July 2016.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lao & Wei has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC7788/2016

Ms Lao

Applicant

And

Mr Wei

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

By paragraph 2 of her Further Amended Initiating Application filed 26 December 2017, Ms Lao (“the wife”) seeks an order declaring that she and Mr Wei (“the husband”) “carried on a de facto relationship between 15 November 2010 and 13 July 2016.” For his part, the husband denies that the parties were in a de facto relationship during that time. By order of Johns J made 2 July 2018, that matter was ordered to be tried as a preliminary issue in the proceedings. On 3 October 2018 I concluded the trial of that preliminary matter, and reserved my judgment. This is that decision and the reasons for it.

THE FACTS

The husband was…

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 Lao and Wei

Details

AGLC: Lao and Wei [2018] FamCA 893
Case: [2018] FamCA 893
Decision Date: 6 November 2018

CaseChat Overview and Summary

In the matter of *Lao and Wei*, heard before Tree J of the Federal Circuit and Family Court of Australia, the parties sought declarations regarding the existence and duration of their de facto relationship. The dispute centred on whether a de facto relationship existed between the parties and, if so, for what period.

The primary legal issue before the Court was to determine whether the criteria for a de facto relationship, as defined by section 90SB of the *Family Law Act 1975* (Cth), were met, and to establish the precise commencement and cessation dates of that relationship. This required an assessment of the nature of the parties' cohabitation and their mutual commitment to a shared life.

Tree J found that the parties were in a de facto relationship between 15 November 2010 and 13 July 2016. This conclusion was reached by applying the relevant provisions of the *Family Law Act 1975* (Cth), which consider factors such as the duration of the relationship, the nature and extent of common residence, whether a sexual relationship existed, the degree of financial dependence or interdependence, the reputation and public acknowledgment of the relationship, the care and support of children, and the ownership, use, and acquisition of property. The Court's assessment of these factors led to the declaration concerning the existence and duration of the de facto relationship.

The Court ordered that, pursuant to s 90RD of the *Family Law Act*, the parties were in a de facto relationship between 15 November 2010 and 13 July 2016, subject to the formal entry of the order in the Court’s records.

Orders

Orders of the court

Pursuant to s 90RD of the Family Law Act, the Court declares that the parties were in a de facto relationship between 15 November 2010 and 13 July 2016.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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