Luk and Choy - [2016] FamCA 534

FAMILY COURT OF AUSTRALIA

LUK & CHOY

[2016] FamCA 534

FAMILY LAW – JURISDICTION - De Facto – Where the applicant sought a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) in relation to property settlement proceedings, that a de facto relationship existed between the applicant and the respondent – Where the proceedings were commenced in the Supreme Court of New South Wales and they were transferred to this Court – Where the parties were in a relationship for less than two years – Where English is not the first language of each of the parties – Where the affidavit relied upon by the respondent had not been verified by him prior to affirming it – Consideration of the circumstances set out in s 4AA(2) of the Family Law Act 1975 (Cth) – Whether the parties were living together on a “genuine domestic basis” – Where the parties engaged in sexual relations – Where the parties purchased a property together as joint tenants – Where there are no children of the parties’ relationship –Where the nature of the parties’ relationship does not meet the statutory definition – Application seeking declaration for a de facto relationship dismissed.

Family Law Act 1975 (Cth) – ss 4AA, 90RD, 90SB, 90SK, 90SM
Family Law Amendment (De facto Financial Matters and Other Measures) Act 2008 (Cth)
De Facto Relationships Act 1984 (NSW)
Family Law Rules 2004 (Cth) r 15.10

Barry and Dalrymple [2010] FamCA 1271
Harriott & Arena [2016] FamCAFC 69
Redmond & Mullins [2015] FamCAFC 69
Roy v Sturgeon (1986) 11 Fam LR 271
V and K [2005] FCWA 80

APPLICANT:

Ms Luk

RESPONDENT:

Mr Choy

FILE NUMBER:

SYC

246

2015

DATE DELIVERED:

30 June 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Loughnan J

HEARING DATE:

26 – 27 May 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Morahan

SOLICITOR FOR THE APPLICANT:

Choy Shan Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Cohen

SOLICITOR FOR THE RESPONDENT:

Ren Zhou Lawyers

Orders

The Application filed 18 November 2015 is dismissed.
For the purposes of proceedings pursuant to s 90SM of the Family Law Act 1975, the Court declares pursuant to s 90RD that a de facto relationship never existed between the applicant and the respondent.
The proceedings are adjourned to a date to be fixed in relation to the respondent’s application for a determination by sale of the parties’ joint ownership of a property pursuant to s 66G of the Conveyancing Act 1919 (NSW).

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 246 of 2015

Ms Luk

Applicant

And

Mr Choy

Respondent

REASONS FOR JUDGMENT

Introduction

Ms Luk (“the applicant”) and Mr Choy (“the respondent”) were in a relationship from 15 July 2012 to 7 February 2014. By her Application filed 18 November 2015,…

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 Luk and Choy

Details

AGLC: Luk and Choy [2016] FamCA 534
Case: [2016] FamCA 534
Decision Date: 30 June 2016

CaseChat Overview and Summary

In *Luk and Choy*, Loughnan J of the Federal Circuit Court of Australia considered an application by the applicant for a declaration that a de facto relationship existed between the parties. The applicant sought this declaration for the purposes of proceedings under s 90SM of the *Family Law Act 1975* (Cth).

The primary legal issue before the Court was whether a de facto relationship, as defined by s 4AA of the *Family Law Act 1975*, existed between the applicant and the respondent. This required the Court to consider all the circumstances of their relationship, including factors such as the duration of the relationship, the nature of their common residence, the existence of a sexual relationship, their financial dependence or interdependence, the ownership and acquisition of property, the degree of mutual commitment to a shared life, and the reputation and public aspects of the relationship.

Loughnan J determined that, having regard to all the circumstances, the parties did not have a relationship as a couple living together on a genuine domestic basis. Consequently, the Court declared that a de facto relationship never existed between the applicant and the respondent for the purposes of proceedings under s 90SM of the *Family Law Act 1975*. The Court also dismissed the applicant's application and adjourned the proceedings to a date to be fixed concerning the respondent's separate application for a determination by sale of the parties' joint ownership of a property under s 66G of the *Conveyancing Act 1919* (NSW).

Orders

Orders of the court

The Application filed 18 November 2015 is dismissed.

For the purposes of proceedings pursuant to s 90SM of the Family Law Act 1975, the Court declares pursuant to s 90RD that a de facto relationship never existed between the applicant and the respondent.

The proceedings are adjourned to a date to be fixed in relation to the respondent’s application for a determination by sale of the parties’ joint ownership of a property pursuant to s 66G of the Conveyancing Act 1919 (NSW).

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

The immediate relief sought by the applicant is a declaration pursuant to s 90RD of the Act. That section provides:Declarations about existence of de facto relationshipsSubdivision C—Declarations about existence of de facto relationships90RD Declarations about existence of de facto relationships(1) If: (a)an application is made for an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL; and(b)a claim is made, in support of the application, that a de facto relationship existed between the applicant and another person;the court may, for the purposes of those proceedings (the primary proceedings), declare that a de facto relationship existed, or never existed, between those 2 persons.(2)A declaration under subsection (1) of the existence of a de facto relationship may also declare any or all of the following:(a) the period, or periods, of the de facto relationship for the purposes of paragraph 90SB(a);(b) whether there is a child of the de facto relationship(c) whether one of the parties to the de facto relationship made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c);(d) when the de facto relationship ended;(e) where each of the parties to the de facto relationship was ordinarily resident during the de facto relationship.Note: For child of a de facto relationship, see section 90RB.90RE Effect of declarations(1) A section 90RD declaration has effect as a judgment of the court.(2) For the purposes of this Act (other than Part VII), a section 90RD declaration has effect according to its terms.90RF Applying for declarationsAny party to the primary proceedings may apply for a section 90RD declaration.90RG Geographical requirementA court may make a section 90RD declaration only if the court is satisfied that a person referred to in paragraph 90RD(1)(b), or both of those persons, were ordinarily resident in a participating jurisdiction when the primary proceedings commenced. As to what constitutes a de facto relationship for present purposes, s 4AA of the Act relevantly provides:4AA De facto relationshipsMeaning of de facto relationship(1)A person is in a de facto relationship with another person if:(a) the persons are not legally married to each other; and(b)the persons are not related by family (see subsection (6)); and(c)having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.Paragraph (c) has effect subject to subsection (5).Working out if persons have a relationship as a couple(2) Those circumstances may include any or all of the following:(a) the duration of the relationship;(b) the nature and extent of their common residence;(c) whether a sexual relationship exists;(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;(e) the ownership, use and acquisition of their property;(f) the degree of mutual commitment to a shared life;(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;(h) the care and support of children;(i) the reputation and public aspects of the relationship.(3) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.(4) A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.(5) For the purposes of this Act:(a) a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and(b) a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.