FAMILY COURT OF AUSTRALIA
| SANIL & LENNON | [2019] FamCA 556 |
| FAMILY LAW – De facto relationship – threshold issue – whether a de facto relationship existed – where the Applicant seeks a declaration that he and the Respondent were not in a de facto relationship – where the Respondent seeks a declaration that she and the Applicant were in a de facto relationship – where, if a de facto relationship existed, the Court is requested to determine the period of that relationship – consideration of the nature of that relationship – findings as to credit of the witnesses – held that a de facto relationship did exist in the period from 13 October 2010 until 15 August 2012. |
| Family Law Act 1975 (Cth) s 90RD, 4AA, pt VIIAB. Evidence Act 1995 (Cth) s 140. Migration Act 1958 (Cth) s 102, 234. |
| Dahl & Hamblin (2011) 46 Fam LR 229 Elias & Elias (1977) FLC 90.267 Gissing & Sheffield [2012] FMCAfam 1111 Hayes v Marquis [2008] NSWCA 10 Jordan & Jordan (1997) FLC 92-736 Kuhl v Zurich Financial Services Australia Ltd (2011) 276 ALR 375 McGlen-McLeod v Galloway [2012] NSWCA 368 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 Ricci v Jones [2011] FamCAFC 222 Rooks & Padley [2014] FamCA 444 Rushdie & Moshin [2017] FamCA 859 Sinclair & Whittaker [2013] FamCAFC 129 Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB) Whalan v Kogarah Municipal Council [2007] NSWCA 5 |
| APPLICANT: | Mr Sanil |
| RESPONDENT: | Ms Lennon |
| FILE NUMBER: | DNC | 378 | of | 2014 |
| DATE DELIVERED: | 16 August 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland DCJ |
| HEARING DATE: | 31 October 2018, 1 November 2018, 7 & 12 March 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Millar |
| SOLICITOR FOR THE APPLICANT: | Pigdon Norgate Family Lawyers |
| SOLICITOR FOR THE RESPONDENT: | Self-represented |
Orders
It is declared that the parties were in a de facto relationship in the period from 13 October 2010 until 15 August 2012.
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 Sanil & Lennon 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 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: DNC 378 of 2014
| Mr Sanil |
Applicant
And
| Ms Lennon |
Respondent
REASONS FOR JUDGMENT
Introduction
This decision concerns an Application in a Case filed by Mr Sanil on 7 September 2017, seeking a declaration that he and Ms Lennon were never in a de facto relationship. In the alternative, in the event that the Court finds that the parties were in a…
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- Sanil and Lennon [2019] FamCA 556
- Case
- [2019] FamCA 556
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether Mr Sanil and Ms Lennon were in a de facto relationship and, if so, the specific dates of that relationship. This determination was crucial for the subsequent orders to be made.
McClelland DCJ applied the legal principle that courts generally presume individuals act lawfully and do not engage in fraudulent or criminal conduct, citing *Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd*. The judge found it improbable that Ms Lennon provided false or misleading information on her incoming passenger card. However, the court also considered inconsistencies in Ms Lennon's evidence regarding her place of residence and marital status, as revealed in a workers compensation interview and reports from a vocational psychologist and a medical practitioner. Despite these inconsistencies, the court ultimately declared that the parties were in a de facto relationship from 13 October 2010 until 15 August 2012.
Orders
Orders of the court
1.
It is declared that the parties were in a de facto relationship in the period from 13 October 2010 until 15 August 2012.
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
In that respect the requirement for incoming passengers to complete incoming passenger cards accurately is prescribed in the Migration Act 1958 (Cth) (‘Migration Act’) – including that “no incorrect answers are [to be] given” (s 102(b) of the Migration Act) and such documents cannot contain “false or misleading” information (s 234(1)(c) of the Migration Act). The question then becomes whether the information contained on the incoming passenger card accurately represented Ms Lennon’s intentions. In that respect, I note that courts generally presume that members of society will act lawfully. In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 450, the High Court referred to: … a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.(Footnotes omitted) As a practicing lawyer, it is, in my view, improbable that Ms Lennon provided false and misleading information on her incoming passenger card when she re-entered Australia in May 2006. That declaration must also be considered in the context of the evasiveness of Ms Lennon’s evidence in respect to the nature of her relationship with the lawyer from Town E identified in these proceedings by the name of Mr MM to whom I earlier referred. In August 2006, Ms Lennon was interviewed for the purposes of a workers compensation claim. During the course of that interview she stated that she was single and had one dependent child and that she was living at the C Street property. However, in his completion of a psychological assessment for Ms Lennon, in September 2006, Mr SS Vocational Psychologist, stated that Ms Lennon lived in Town TT and was housesitting in Sydney, at the time the report was being prepared. I accept that Mr SS had no way of independently ascertaining that information and could only have received that information from Ms Lennon herself. Ms Lennon states that she had previously travelled to and stayed in Town TT, but that Mr SS was mistaken in his recording of her address, at that time. However, the record made by Mr SS is also consistent with a record made by a medical practitioner who also assessed Ms Lennon at about that time. In that respect, counsel for Mr Sanil tendered a report of Dr LL dated the 5 September 2006, which is marked ‘Exhibit 3H’ in the proceedings. In that report, which is in respect to an assessment made on 22 August 2006, Dr LL records Ms Lennon’s marital status as single. He does record Ms Lennon’s place of residence at that time as being C Street property, however, under that record it is noted that the advice provided by Ms Lennon was that she normally resides in Town E. Dr LL stated at paragraph 5.1 of the report that, at the date of the assessment, Ms Lennon was housesitting at the C Street Property, however, her permanent home address is in Town E, where she shares a house with a friend from law school. Further, under paragraph 5.2 it records details of Ms Lennon’s spouses’ employment which notes “there is no spouse.”