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 2023FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: 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 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
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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