FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Quinn & Lawson (No 2) [2023] FedCFamC1F 274
File number(s): SYC 7896 of 2015 Judgment of: SCHONELL J Date of judgment: 17 April 2023 Catchwords: FAMILY LAW – DE FACTO RELATIONSHIP – Where both parties sought declarations pursuant to s 90RD of the Family Law Act 1975 (Cth) – Where the applicant contended that the relationship broke down in December 2013 – Where the respondent contended that the relationship broke down in August 2011 – Where the applicant commenced proceedings in December 2015 – Where after 2011 the parties remained living together despite the respondent contending that he was telling the applicant to move out – Where the evidence is that the parties slept in the same room together, went to events together, travelled together, and socialised with each other’s family and friends – Where the applicant’s evidence is preferred because the respondent’s evidence was found to be unreliable – Declaration made that the relationship broke down not before December 2013. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4AA, 90RD, 90SM
Cases cited: Cubillo v Commonwealth of Australia (No 2) (2000) 103 FCR 1; [2000] FCA 1084
Fairbairn v Radecki (2022) 400 ALR 613; [2022] HCA 18
Nguyen v Tran (2018) MVR 16; [2018] NSWCA 215
Division: Division 1 First Instance Number of paragraphs: 238 Date of last submissions: 13 April 2023 Date of hearing: 23 – 26 August 2022, 15 February 2023, 10, 13 and 16 March 2023 and 11 April 2023 Place: Sydney Counsel for the Applicant: Mr O’Dwyer SC with Mr Gardiner (23 – 26 August 2022);
Mr Gardiner (15 February 2023);
Mr Blackah (10 and 16 March 2023);
Litigant in Person (11 – 13 April 2023)Solicitor for the Applicant: Gordon & Barry Lawyers (21 July 2022 – 8 March 2023);
Leeder Law (9 March – 10 April 2023)Counsel for the Respondent: Mr Longworth;
Mr Kenny (16 March 2023)Solicitor for the Respondent: Bartier Perry Lawyers ORDERS
SYC 7896 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS QUINN
Applicant
AND: MR LAWSON
Respondent
order made by:
SCHONELL J
DATE OF ORDER:
17 APRIL 2023
THE COURT ORDERS THAT:
1.Pursuant to s 90RD of the Family Law Act 1975 (Cth), the Court declares that the applicant and respondent were in a de facto relationship commencing in August 2006 and ending no earlier than 23 December 2013.
2.This matter is listed for case management hearing at 10.00 am on 12 May 2023 before a Senior Judicial Registrar.
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…
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CaseChat Overview and Summary
The court had to evaluate the credibility of the parties' evidence and consider all the circumstances of their relationship. This involved scrutinising the behaviour of the parties post-August 2011 and examining the evidence provided by witnesses, including the applicant’s brother. The court found the applicant's evidence more reliable, particularly regarding the nature of their relationship after the heated discussion in August 2011. The respondent's assertions about a change in their relationship dynamics were deemed inconsistent with his own conduct and the applicant’s evidence. The court concluded that the relationship had genuinely broken down on 23 December 2013, based on the totality of the evidence.
The court’s reasoning was rooted in the High Court's guidance in Fairbairn & Radecki, which emphasises that a de facto relationship is considered to have broken down when the parties no longer live together on a genuine domestic basis. The court’s decision hinged on the applicant's consistent depiction of the relationship as ongoing and the respondent's behaviour that contradicted his claims of an earlier breakup. The court’s decision was thus premised on a detailed examination of the evidence and the conduct of the parties.
The final orders made by the court included a declaration that the de facto relationship between the applicant and the respondent existed from August 2006 and ended on 23 December 2013, and that the respondent pay the applicant's costs of the leave application on an indemnity basis.
Orders
Orders of the court
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Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The ambit of the dispute relates to when the breakdown of the de facto relationship occurred. Reference to terms such as ‘separation’ are unhelpful as it is not a term upon which jurisdiction is established. In that respect, s 90SM of the Act relevantly provides that:90SM Alteration of property interests (1)In property settlement proceedings after the breakdown of a de facto relationship, the court may make such order as it considers appropriate: … There was no issue that the parties’ de facto relationship commenced in August 2006. The applicant contends that the de facto relationship broke down on 23 December 2013. The respondent for his part contends that the de facto relationship broke down in August 2011. The significance of each of the dates is relevant to the applicant’s application for financial adjustment under s 90SM in circumstances where, if the de facto relationship broke down at a date earlier than that contended by her, she would then need leave to bring proceedings out of time. The applicant seeks the following relief (Exhibit 18):1. Declaration pursuant to Section 90RD(1) & (2) of the Family Law Act 1975 (Commonwealth) that a de facto relationship existed between the Applicant and the Respondent commencing in August 2006 and ending no earlier than 23 December 2013.2. That the Respondent pay the costs of the Applicant in respect of the Leave Application on an indemnity basis. The respondent seeks the following relief (Exhibit 18):1 Declaration pursuant to s 90RD(1) & (2) of the Family Law Act 1975 (Cth) that a de facto relationship existed between the Applicant and the Respondent commencing no earlier than 1 August 2006 and ending no later than 31 August 2011.2 That the Applicant pay the costs of the Respondent of and associated with these proceedings. Where each party moves the Court for a declaration as to when the de facto relationship broke down, each party carries the onus to establish the date contended for by that party.DOCUMENTS RELIED UPON The applicant relied upon the following documents:(1)Initiating Application filed 1 December 2015;(2)Affidavit of applicant filed 13 February 2020 (“trial affidavit”);(3)Affidavit in reply of applicant filed 8 August 2022;(4)Affidavit of Mr D filed 16 August 2022;(5)Affidavit of Ms E filed 13 February 2020;(6)Affidavit of Ms F filed 24 February 2020;(7)Affidavit of Mr G filed 30 March 2020;(8)Affidavit of Mr H filed 30 March 2020; (9)Case Outline document; and(10)Written submissions filed 16 March 2023 and 13 April 2023. In addition, the applicant sought leave to rely upon a report of Dr B, neuropsychologist. The report was not appended to an affidavit and was served shortly prior to the commencement of the hearing, albeit that the report is dated in 2020. The report does not constitute evidence of a treating physician but is single expert evidence obtained for the purposes of the proceedings. At no time did the applicant file an application seeking leave to adduce evidence from an expert other than a jointly appointed single expert. Ultimately, the parties reached agreement about the terms upon which it would be received into evidence. The report and the letter setting out the terms on which it would be received became Exhibit 19 in the proceedings.