NA & TIU - [2017] FamCA 282

FAMILY COURT OF AUSTRALIA

NA & TIU

[2017] FamCA 282

FAMILY LAW – DE FACTO RELATIONSHIPS – Where the parties disputed whether they were ever in a de facto relationship – Where both parties were married to other persons at the commencement of the relationship – Where the parties never cohabited – Where the relationship had no public notoriety – Where the respondent remains married to her husband and that marriage is not an empty shell – Where the parties did not combine their resources in a concerted effort to mutually improve their financial positon – Declared a de facto relationship never existed between the parties

FAMILY LAW – ORDERS – Discussion of the form the orders should take – Where the respondent sought refusal of the declaration sought by the applicant – Where simple dismissal of the specific application for declaration would not necessarily preclude a fresh application that a de facto relationship existed between different dates – Declared pursuant so s 90RD of the Family Law Act that the parties were never in a de facto relationship

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

Hayes v Marquis [2008] NSWCA 10
Jonah & White [2011] FamCA 221
Owens & Benson [2014] FamCAFC 243

APPLICANT:

Mr Na

RESPONDENT:

Ms Tiu

FILE NUMBER:

SYC

2315

2014

DATE DELIVERED:

1 May 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Austin J

HEARING DATE:

27, 28 & 29 March 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Winfield

SOLICITOR FOR THE APPLICANT:

Brighton Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Morahan

SOLICITOR FOR THE RESPONDENT:

Chen Shan Lawyers

Orders

Pursuant to s 90RD of the Family Law Act, it is declared that no de facto relationship (within the meaning prescribed by the Family Law Act) ever existed between the applicant and respondent.
Otherwise:
(a)The Initiating Application filed on 17 April 2014 is dismissed;
(b)The Response to Initiating Application filed on 20 May 2014 is dismissed;
(c)The Application in a Case filed on 24 June 2016 is dismissed;
(d)The Application in a Case filed on 30 August 2016 is dismissed;
(e)The Response to an Application in a Case filed on 26 January 2017 (seeking five orders) is dismissed;
(f)The Response to an Application in a Case filed on 26 January 2017 (seeking three orders) is dismissed; and
(g)Any and all other outstanding applications are dismissed.
Costs are reserved for 28 days.

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 Na & Tiu 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…

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.

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Details

AGLC: NA & TIU [2017] FamCA 282
Case: [2017] FamCA 282
Decision Date: 1 May 2017

CaseChat Overview and Summary

In the Family Court of Australia, Austin J considered a dispute between the applicant and respondent concerning the existence of a de facto relationship. The central contention was whether the parties had ever been in a de facto relationship, a question complicated by the fact that both were married to other individuals at the commencement of their relationship.

The court was required to determine whether the criteria for a de facto relationship, as defined by the Family Law Act, were met. Key aspects of the relationship that the court examined included the absence of cohabitation, a lack of public notoriety, the respondent's continued marriage to her husband, and the parties' failure to combine their financial resources for mutual benefit.

Austin J reasoned that the evidence did not support the existence of a de facto relationship. The court found that the parties had never cohabited, their relationship lacked public recognition, and they had not pooled their financial resources in a manner indicative of a committed partnership. Crucially, the respondent remained married to her husband, and that marriage was not considered an empty shell. Applying these findings to the statutory definition, the court concluded that the essential elements of a de facto relationship were absent.

Consequently, pursuant to s 90RD of the Family Law Act, the court declared that no de facto relationship ever existed between the applicant and the respondent. All outstanding applications filed by both parties were dismissed, and costs were reserved for 28 days.

Orders

Orders of the court

Pursuant to s 90RD of the Family Law Act, it is declared that no de facto relationship (within the meaning prescribed by the Family Law Act) ever existed between the applicant and respondent.

Otherwise:

(a) The Initiating Application filed on 17 April 2014 is dismissed;

(b) The Response to Initiating Application filed on 20 May 2014 is dismissed;

(d) The Application in a Case filed on 30 August 2016 is dismissed;

(e) The Response to an Application in a Case filed on 26 January 2017 (seeking five orders) is dismissed;

(f) The Response to an Application in a Case filed on 26 January 2017 (seeking three orders) is dismissed; and

(g) Any and all other outstanding applications are dismissed.

Costs are reserved for 28 days.

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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