Piovene & Muhlfeld

Case [2025] FedCFamC1A 46

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Piovene & Muhlfeld [2025] FedCFamC1A 46

Appeal from: Piovene & Muhlfeld (No 3) [2024] FedCFamC1F 614
Appeal number: NAA 262 of 2024
File number: SYC 4211 of 2023
Judgment of: HARPER, RIETHMULLER & STRUM JJ
Date of judgment: 19 March 2025
Catchwords:

FAMILY LAW – APPEAL – DE FACTO RELATIONSHIP – Appeal from declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) as to the parties’ relationship – No factual error capable of materially affecting the outcome demonstrated – Appellant failed to establish incompetence of counsel – Appeal dismissed – Appellant to pay the respondent’s costs in a fixed sum.

FAMILY LAW – APPLICATION IN AN APPEAL – Application to adduce further evidence – Where the material the appellant sought to adduce was of no utility or relevance to issues in proceedings – Application dismissed.   
Legislation:

Evidence Act 1995 (Cth) s 50

Family Law Act 1975 (Cth) Pt VIIIAB, ss 4AA, 90RD, 90RE, 117

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 12.08, 12.17

Cases cited:

Cizek & Mihov (2024) FLC 94-206; [2024] FedCFamC1A 151

Colburn & Cleese (2022) FLC 94-105; [2022] FedCFamC1A 147

Cubillo v Commonwealth (No 2) (2000) 103 FCR 1; [2000] FCA 1084

De Winter and De Winter (1979) FLC 90-605

Diamond & Diamond [2024] FedCFamC1A 201

Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Hedlund & Hedlund (2021) 64 Fam LR 458; [2021] FedCFamC1A 84

Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378

Koyroyshs & Koyroyshs [2021] FedCFamC1A 54

Lee v Lee (2019) 266 CLR 129; [2019] HCA 28

Markusson & Markusson (No 3) [2024] FedCFamC1A 196

Massalski & Riley (2021) FLC 94-047; [2021] FamCAFC 116

Moore (a pseudonym) v The King (2024) 98 ALJR 1119; [2024] HCA 30

OP v TP & Anor (Conduct of Counsel) (2002) 30 Fam LR 281; [2002] FamCA 1155

Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22

Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49

TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48

Yoxall & Eide [2024] FedCFamC1A 200

Number of paragraphs: 75
Date of hearing: 4 February 2025
Place: Sydney
The Appellant: Litigant in person
Counsel for the Respondent: Mr Kearney SC
Solicitor for the Respondent: Barkus Doolan Winning

ORDERS

NAA 262 of 2024
SYC 4211 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MR PIOVENE

Appellant
AND:

MS MUHLFELD

Respondent

ORDER MADE BY:

HARPER, RIETHMULLER & STRUM JJ

DATE OF ORDER:

19 MARCH 2025

THE COURT ORDERS THAT:

1.The Application in an Appeal filed on 21 January 2025 be dismissed.

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Piovene & Muhlfeld [2025] FedCFamC1A 46
Case
[2025] FedCFamC1A 46
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia (Appellate Division) considered an appeal from a primary judgment concerning a dispute over the existence of a de facto relationship between the appellant, Mr Piovene, and the respondent, Ms Muhlfeld. The appellant sought a declaration under section 90RD of the Family Law Act 1975 (Cth) that a de facto relationship existed between them, which was necessary for the court to exercise jurisdiction over a subsequent property division claim. The respondent denied the existence of such a relationship and argued instead that they were merely friends. The primary judge found against the appellant, concluding that the necessary criteria for a de facto relationship were not satisfied. The appellant's appeal challenged the primary judge's assessment of the evidence and the weight given to various factual matters.

The court needed to decide whether the primary judge erred in finding that no de facto relationship existed between the parties. This involved reviewing the primary judge's evaluation of the evidence, particularly the conflicting accounts of the nature and extent of the relationship. The appellant argued that the primary judge should have inferred a de facto relationship from certain pieces of evidence, such as joint travel and shared living arrangements. However, the court noted that such inferences are not mandatory and the primary judge had a broad discretion in assessing the evidence. The appellant also contended that the primary judge failed to adequately evaluate certain evidence in favour of a de facto relationship, but this argument did not persuade the court that the primary judge's conclusions were erroneous or unreasonable.

The court found that the primary judge had a sufficient factual basis for his conclusions and that the appellant did not demonstrate that the findings were demonstrably wrong or improbable. The court also dismissed the appellant's application to adduce further evidence, finding it irrelevant to the issues before the court. Given the appellant's failure to establish any error in the primary judge's determination, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal in a fixed sum of $35,000.

Orders

Orders of the court

NAA 262 of 2024

SYC 4211 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR PIOVENE

Appellant

AND:

MS MUHLFELD

Respondent

ORDER MADE BY:

HARPER, RIETHMULLER & STRUM JJ

DATE OF ORDER:

19 MARCH 2025

THE COURT ORDERS THAT:

1. The Application in an Appeal filed on 21 January 2025 be dismissed.

2. Appeal NAA 262 of 2024 be dismissed.

3. Within 28 days of the date of these orders, the appellant pay the respondent’s costs of the appeal fixed in the amount of $35,000.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Such a declaration is a final, not interlocutory, decree, and takes effect as a judgment. No leave to appeal is required (s 90RE(1) of the Family Law Act 1975 (Cth) (“the Act”); Colburn & Cleese (2022) FLC 94-105 at [13]–[16]). BRIEF BACKGROUND The parties had a personal relationship in 1998 which ended in 2000. The parties resumed contact in 2010. The appellant sought a declaration pursuant to s 90RD of the Act that a de facto relationship existed between the parties from 2010 until 26 October 2022. The declaration was necessary to found jurisdiction to decide the appellant’s consequential claim to property division under Pt VIIIAB of the Act. The respondent denied a de facto relationship ever existed, and cross-applied for a declaration to that effect. She argued the appellant was her best friend. There are no children of the relationship.PRIMARY JUDGMENT The primary judge determined the question of whether a de facto relationship existed between the appellant and the respondent within the meaning of s 4AA(1) of the Act. This provision stipulates that one person is in a de facto relationship with another person if three jurisdictional facts are found: (a) the persons are not legally married to each other; and(b) the persons are not related by family…; 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.… The first two facts were uncontentious. The hearing before the primary judge concerned the third jurisdictional fact. His Honour set out the background facts at [18]–[37]. In the course of these parts of his reasons he adverted to significant parts of the affidavit evidence, highlighting the following important differences: (a)The appellant claimed that the parties made contact in 2010, talked about their previous relationship, and began a sexual relationship, with weekly intercourse, which lasted twelve years until 2022 when he had an affair with another individual; the respondent claimed the parties commenced a business relationship and friendship in 2010, while she was in a de facto relationship with Mr N, and started a casual sexual relationship in 2015 which lasted until 2019, involving intercourse up to five to ten times during that period (at [21]–[22] and [30]);(b)The appellant claimed the parties considered purchasing an apartment at Suburb T which happened in 2010 through a company owned by the respondent. He said the parties stayed there together as a couple on weekends and some weekdays, went for walks and visited local cafes. The respondent agreed she purchased the apartment in the name of her self-managed superannuation fund but claimed her daughter, Ms F, lived there between 2010 and 2011, and thereafter it was rented to Mr N until 2014 (at [25]–[26]);(c)The appellant moved into an apartment owned by the respondent in Suburb U in 2013, where the parties lived together for two or three days each week, and where the respondent stored clothes and personal items. The respondent denied this, stating that she did not stay at Suburb U until 2014, after the end of her relationship with Mr N, and only on five to ten occasions between 2014 to 2019 (at [29]–[30]);(d)The appellant claimed the parties travelled extensively together both internationally and domestically, slept together, stayed in the respondent’s property at Region GG, and that the respondent provided frequent flyer points to the appellant as a family member. The respondent agreed only that the parties travelled together for business purposes and she gave frequent flyer points to other friends (at [31]–[32]);(e)The appellant pointed to social functions, such as Christmas parties, which he claimed the parties hosted together as a couple, while the respondent maintained they did so as friends (at [33]–[34]);(f)The appellant claimed the relationship ended abruptly when the respondent discovered the appellant’s affair in 2022, and her furious reaction demonstrated the strength of their romantic attachment to that point. The respondent gave evidence of a more staggered disintegration of the relationship, referring to problems with the appellant’s work, and the perception of her children that the appellant was greedy. She denied being furious in the manner described by the appellant (at [35]–[36]).

Evidence

Evidence Before The Court

Grounds 3 and 4 fail.Ground 5 – Refusing to draw an inference of a de facto relationship from the appellant’s evidence This ground alleges the primary judge erred by not inferring a de facto relationship from the appellant’s evidence which included photos of the parties together, text and WhatsApp messages and joint travel. At [106]–[119] the primary judge provides reasons why, on balance, a de facto relationship was not inferred on the evidence provided by the appellant. These parts of the reasons show the primary judge had ample factual basis to reach his ultimate conclusion. Ground 5 does no more than contend the primary judge should have reached a different factual conclusion because there was evidence adduced by the appellant which could have led him to different conclusions. But that is not a basis for appellate intervention. Even if different factual conclusions were open on the evidence, the appellant must go further and show the primary judge’s findings were erroneous. He failed to do so. Ground 5 fails.Grounds 7 and 8 These grounds are essentially challenges to the weight given by the primary judge to parts of the appellant’s evidence. The appellant argues his evidence should have been given greater weight. But appellate challenges to the weight a judge at first instance attaches to various pieces of evidence are difficult to sustain (Hedlund at [36]–[37] and [64]). As pointed out earlier, the appellant must persuade this Court that the primary judge’s conclusions were glaringly improbable, contrary to compelling inferences, or demonstrably wrong in the face of incontrovertible facts or uncontested testimony. Arguing greater weight could or should have been attached to specific pieces of evidence will not achieve this. Ground 8 also asserts a failure to evaluate evidence in favour of the relationship “adequately”. It is important here to advert to the provisions of s 4AA(3) and s 4AA(4) of the Act, which provide relevantly:4AA De facto relationships...Working out if persons have a relationship as a couple...(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. The primary judge had a statutory mandate to distribute weight in the evidence as seemed appropriate. The appellant did not argue the primary judge’s factual conclusions, adverted to in Grounds 7 and 8, were glaringly improbable or demonstrably wrong, or produced an unreasonable or plainly unjust result. On the contrary he simply argues some factual matters were in tension with the primary judge’s findings. That, of itself, does not demonstrate that the primary judge erred in the ultimate conclusions that his Honour reached. Having considered the whole of the evidence before the primary judge (with appropriate deference to the advantage that his Honour had in observing the witnesses) we are not persuaded that his Honour erred in finding that no de facto relationship existed between the parties.

Decision

Reasons for decision

There are no children of the relationship.PRIMARY JUDGMENT The primary judge determined the question of whether a de facto relationship existed between the appellant and the respondent within the meaning of s 4AA(1) of the Act. This provision stipulates that one person is in a de facto relationship with another person if three jurisdictional facts are found: (a) the persons are not legally married to each other; and(b) the persons are not related by family…; 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.… The first two facts were uncontentious. The hearing before the primary judge concerned the third jurisdictional fact. His Honour set out the background facts at [18]–[37]. In the course of these parts of his reasons he adverted to significant parts of the affidavit evidence, highlighting the following important differences: (a)The appellant claimed that the parties made contact in 2010, talked about their previous relationship, and began a sexual relationship, with weekly intercourse, which lasted twelve years until 2022 when he had an affair with another individual; the respondent claimed the parties commenced a business relationship and friendship in 2010, while she was in a de facto relationship with Mr N, and started a casual sexual relationship in 2015 which lasted until 2019, involving intercourse up to five to ten times during that period (at [21]–[22] and [30]);(b)The appellant claimed the parties considered purchasing an apartment at Suburb T which happened in 2010 through a company owned by the respondent. He said the parties stayed there together as a couple on weekends and some weekdays, went for walks and visited local cafes. The respondent agreed she purchased the apartment in the name of her self-managed superannuation fund but claimed her daughter, Ms F, lived there between 2010 and 2011, and thereafter it was rented to Mr N until 2014 (at [25]–[26]);(c)The appellant moved into an apartment owned by the respondent in Suburb U in 2013, where the parties lived together for two or three days each week, and where the respondent stored clothes and personal items. The respondent denied this, stating that she did not stay at Suburb U until 2014, after the end of her relationship with Mr N, and only on five to ten occasions between 2014 to 2019 (at [29]–[30]);(d)The appellant claimed the parties travelled extensively together both internationally and domestically, slept together, stayed in the respondent’s property at Region GG, and that the respondent provided frequent flyer points to the appellant as a family member. The respondent agreed only that the parties travelled together for business purposes and she gave frequent flyer points to other friends (at [31]–[32]);(e)The appellant pointed to social functions, such as Christmas parties, which he claimed the parties hosted together as a couple, while the respondent maintained they did so as friends (at [33]–[34]);(f)The appellant claimed the relationship ended abruptly when the respondent discovered the appellant’s affair in 2022, and her furious reaction demonstrated the strength of their romantic attachment to that point. The respondent gave evidence of a more staggered disintegration of the relationship, referring to problems with the appellant’s work, and the perception of her children that the appellant was greedy. She denied being furious in the manner described by the appellant (at [35]–[36]).

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.