McMaster & Wyhler - [2013] FamCA 989

FAMILY COURT OF AUSTRALIA

MCMASTER & WYHLER

[2013] FamCA 989

FAMILY LAW – DE FACTO RELATIONSHIP – Application for declaration pursuant to section 90RD that a de facto relationship existed between the applicant and the respondent – Preliminary question – Where applicant argues that the period of de facto relationship was for 4.5 years – Where respondent does not concede that there was an existence of a de facto relationship – Held the circumstances of the relationship were not of a couple living together on a genuine domestic basis – Where the parties never at any time resided in the same building – Where there was never a sexual relationship between the parties – Where neither party was financially dependent or inter-dependent of each other – Where there was little jointly owned property of the parties – Where respondent commenced a concurrent relationship with another man during the same period which was of romantic nature and included a sexual component – Where parties were not considered to be in a relationship by mutual friends.

Family Law Act 1975 (Cth) s 90RD, s 90SM, s 4AA
Evidence Act 1995 (Cth) s 128

Jonah & 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

Jones v Dunkel [1959] 101 CLR 298

APPLICANT:

Mr McMaster

RESPONDENT:

Ms Wyhler

FILE NUMBER:

MLC

5483

2011

DATE DELIVERED:

16 December 2013

PLACE DELIVERED:

Townsville

PLACE HEARD:

Melbourne

JUDGMENT OF:

Tree J

HEARING DATE:

17, 18, 21, 22, 23 January 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Edmunds

SOLICITORS FOR THE APPLICANT:

ALT Legal Associates

COUNSEL FOR THE RESPONDENT:

Mr Kistler

SOLICITORS FOR THE RESPONDENT:

Lewenberg & Lewenberg

Orders

The Applicant’s Amended Application filed 1 February 2012 be dismissed.

Any Application in a Case seeking an order for costs by either party, be made, filed and served on or before 4:00pm on 24 January 2014.

Any Submissions in support for any Application for Costs be made, filed and served on or before 4:00pm on 7 February 2014.

Any Submissions in response to any submissions filed in accordance with Order 3 hereof, be made, filed and served on or before 4:00pm on 21 February 2014.

Any Submissions in reply be made filed and served on or before 4:00pm on 28 February 2014.

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

FAMILY COURT OF AUSTRALIA

FILE NUMBER: MLC 5483/2011

Mr McMaster

Applicant

And

Ms Wyhler

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

By his Amended Initiating Application filed 1 February 2012, the applicant sought a declaration that he and the respondent were in a de facto relationship between May 2006 to December 2010, or alternatively January 2011. By her Amended…

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 McMaster & Wyhler

Details

AGLC: McMaster & Wyhler [2013] FamCA 989
Case: [2013] FamCA 989
Decision Date: 16 December 2013

CaseChat Overview and Summary

In *McMaster & Wyhler*, heard by Tree J, the applicant sought a declaration under section 90RD of the *Family Law Act 1975* (Cth) that a de facto relationship existed between herself and the respondent for a period of 4.5 years. The respondent contested the existence of such a relationship.

The central legal issue before the court was whether the circumstances of the parties' interactions constituted a de facto relationship as defined by the *Family Law Act 1975* (Cth). This required the court to determine if the parties were living together on a genuine domestic basis.

Tree J found that the parties were not living together on a genuine domestic basis. The court noted that the parties never resided in the same building, there was no sexual relationship between them, and they were not financially dependent or interdependent. Furthermore, there was little jointly owned property, the respondent had a concurrent romantic and sexual relationship with another man during the period in question, and mutual friends did not consider the parties to be in a relationship. These factors collectively led the court to conclude that the criteria for a de facto relationship were not met.

The court ordered that the applicant's amended application be dismissed. Directions were also made regarding the filing and service of any applications and submissions concerning costs.

Orders

Orders of the court

The Applicant’s Amended Application filed 1 February 2012 be dismissed.

Any Application in a Case seeking an order for costs by either party, be made, filed and served on or before 4:00pm on 24 January 2014.

Any Submissions in support for any Application for Costs be made, filed and served on or before 4:00pm on 7 February 2014.

Any Submissions in response to any submissions filed in accordance with Order 3 hereof, be made, filed and served on or before 4:00pm on 21 February 2014.

Any Submissions in reply be made filed and served on or before 4:00pm on 28 February 2014.

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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