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 Jones v Dunkel [1959] 101 CLR 298 |
| APPLICANT: | Mr McMaster |
| RESPONDENT: | Ms Wyhler |
| FILE NUMBER: | MLC | 5483 | of | 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…
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- McMaster & Wyhler [2013] FamCA 989
- Case
- [2013] FamCA 989
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CaseChat Overview and Summary
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
1.
The Applicant’s Amended Application filed 1 February 2012 be dismissed.
2.
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.
3.
Any Submissions in support for any Application for Costs be made, filed and served on or before 4:00pm on 7 February 2014.
4.
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.
5.
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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