FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Shelby & Rylan [2022] FedCFamC1F 281
File number(s): LEC 701 of 2018 Judgment of: HOGAN J Date of judgment: 29 April 2022 Catchwords: FAMILY LAW – Where the Applicant seeks a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) that she and the Respondent were in a de facto relationship – Where the Respondent seeks a declaration that a de facto relationship never existed between the parties – Where the Court finds no de facto relationship ever existed between the parties – Application of the Applicant dismissed and declaration made as sought by the Respondent Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth)
Cases cited: Fencott v Muller (1983) 152 CLR 570
Herford & Berke (No. 2) (2019) FLC 93-919
Jonah & White (2012) FLC 93-522
Lynam v Director-General of Social Security (1983) 52 ALR 128
Nevins & Urwin (No 3) [2022] FedCFamC1F 201
Ricci v Jones [2011] FamCAFC 222
Sinclair & Whittaker (2013) FLC 93-551
Division: Division 1 First Instance Number of paragraphs: 231 Date of hearing: 15, 16, 17 and 18 February 2021; 5, 6 and 7 May 2021; 6 July 2021; 3 and 16 September 2021 Place: Brisbane Counsel for the Applicant: Mr Hodgson Solicitor for the Applicant: Tyndall & Co. Lawyers Counsel for the Respondent: Mr Priestley Solicitor for the Respondent: Family Law Solutions Counsel for the First and Second Interveners: Mr Priestley Solicitor for the First and Second Interveners: Family Law Solutions ORDERS
LEC 701 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SHELBY
Applicant
AND: MR RYLAN
Respondent
E PTY LTD
First Intervener
C PTY LTD
Second Intervener
ORDER MADE BY:
HOGAN J
DATE OF ORDER:
29 APRIL 2022
IT IS ORDERED BY WAY OF FINAL ORDER THAT:
1.Pursuant to s 90RD(1) of the Family Law Act 1975 (Cth) and for the purposes of these proceedings, the Court hereby declares that a de facto relationship never existed between the Applicant and the Respondent.
2.The Applicant’s Further Amended Initiating Application filed 4 December 2020 is dismissed.
3.The Applicant cause the following sums to be paid to the following entities within 72 hours of being provided with the details of the bank account/s into which such payments are to be made:
(a)to E Pty Ltd: $17,550.60; and
(b)to C Pty Ltd: $116,625.
4.The injunction imposed on the Applicant by order 1 of the orders made 16 September 2021 is discharged.
5.Save for causing the payment of the sums referred to in order 3 above, the Applicant is restrained and an injunction is issued restraining her from allowing or causing the balance of her Westpac Account Number #...81 to fall below the amount of $140,000.
6.Upon payment by the Applicant of the sums referred to in order 3 above, the injunction restraining the Applicant’s use of the funds in her Westpac Account Number #...81 is discharged.
7.The Applicant make all items…
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- AGLC
- Shelby & Rylan [2022] FedCFamC1F 281
- Case
- [2022] FedCFamC1F 281
- Decision Date
CaseChat Overview and Summary
In the case of Shelby & Rylan, Ms Shelby brought a claim against Mr Rylan for a declaration that they were in a de facto relationship, which was contested by Mr Rylan. The matter came before the court to determine whether the relationship between Ms Shelby and Mr Rylan met the criteria for a de facto relationship under the relevant statute. The court was also required to consider the jurisdiction over claims made by third parties, who were later added as interveners, regarding alleged debts owed by Mr Rylan.
The primary legal issue the court had to decide was whether Ms Shelby and Mr Rylan had a de facto relationship as defined by the Act. This involved examining various aspects of their relationship, including their living arrangements, financial ties, and mutual commitments. Additionally, the court had to determine if it had jurisdiction to hear claims by the interveners if it found that Ms Shelby and Mr Rylan were not in a de facto relationship. The court had to assess the credibility and consistency of Ms Shelby’s evidence, particularly in light of her failure to declare income to Centrelink and her inconsistent statements during cross-examination.
The court found that Ms Shelby's evidence was not credible, particularly her account of the start date of the alleged relationship and her failure to declare income. The court concluded that the "composite picture" of the relationship did not demonstrate a genuine domestic relationship as required by the statute. The court found that Ms Shelby and Mr Rylan were not in a de facto relationship and made a declaration to that effect. Furthermore, the court ruled that it did not have jurisdiction to hear the claims of the interveners if it found that there was no de facto relationship between Ms Shelby and Mr Rylan.
The court’s final orders included a declaration that Ms Shelby and Mr Rylan were not in a de facto relationship, and the claims by the interveners were dismissed due to lack of jurisdiction.
The primary legal issue the court had to decide was whether Ms Shelby and Mr Rylan had a de facto relationship as defined by the Act. This involved examining various aspects of their relationship, including their living arrangements, financial ties, and mutual commitments. Additionally, the court had to determine if it had jurisdiction to hear claims by the interveners if it found that Ms Shelby and Mr Rylan were not in a de facto relationship. The court had to assess the credibility and consistency of Ms Shelby’s evidence, particularly in light of her failure to declare income to Centrelink and her inconsistent statements during cross-examination.
The court found that Ms Shelby's evidence was not credible, particularly her account of the start date of the alleged relationship and her failure to declare income. The court concluded that the "composite picture" of the relationship did not demonstrate a genuine domestic relationship as required by the statute. The court found that Ms Shelby and Mr Rylan were not in a de facto relationship and made a declaration to that effect. Furthermore, the court ruled that it did not have jurisdiction to hear the claims of the interveners if it found that there was no de facto relationship between Ms Shelby and Mr Rylan.
The court’s final orders included a declaration that Ms Shelby and Mr Rylan were not in a de facto relationship, and the claims by the interveners were dismissed due to lack of jurisdiction.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Whilst such differences, in what is another significant aspect of any proceedings in which the existence of a de facto relationship is asserted, may have been able to be explained, Ms Shelby was unable to say why these details had changed. Again, I was left with the very real feeling that the later asserted date of the start of the alleged de facto relationship was a reconstruction rather than a recitation of past fact.Other aspects of Ms Shelby’s evidence, including when cross-examined I think it much more likely than not that Ms Shelby failed to inform Centrelink of the remuneration she had received from her previous employment before she started to work for E Pty Ltd. I think it highly unlikely that she was unaware of her obligation to do so. Whilst she initially said, when cross-examined, that her sources of income before she started to work for E Pty Ltd were from social security payments and some part-time manual work, she then appeared to me to say that she had not received money for the manual work but, instead, exercise classes – before asserting, in essence, that she had been paid as well as receiving free or discounted exercise classes. I think it much more likely than not that this prevarication arose because Ms Shelby knew that she had not declared her manual earnings to Centrelink. I note her evidence included that she believed there was some income she did not declare to Centrelink in the 2004/2005 financial year; she later accepted that she had received money to which she was not entitled as a consequence of her failure to declare income which she knew she had to declare. During an earlier part of her cross-examination, Ms Shelby asserted that everybody working in the E Pty Ltd business, other than her, had been on “incentives” and “bonuses”; however, during a later aspect of her cross-examination, she agreed that this evidence was untrue. I am unpersuaded that Ms Shelby was simply mistaken or flustered when she first spoke as she did. When cross-examined, Ms Shelby also accepted that her tax return for the 2007 financial year recorded her receipt of more than $2,000 by way of the single parent payment – a payment she knew she was not entitled to receive if she was then (as she now claims) in a de facto relationship. I was unpersuaded by Ms Shelby’s attempt to explain her actions in claiming the single parent payment at the same time as she has now asserted that she had been in a de facto relationship with Mr Rylan: namely, that, whilst they were then involved on a domestic basis, she had not, in her mind, then framed it as a de facto relationship (and, hence, she claimed the single parent payment). I think it much more likely than not that Ms Shelby claimed the single parent payment because she regarded herself as being a single parent; I think her attempt to explain away the contradiction was self-serving and a further example of her reconstruction of past events through a prism intended to convey the existence of a de facto relationship.
Decision
Reasons for decision
I accept Ms L’s evidence that, in 2018, Mr Rylan loaned her money on an interest-free basis to help her pay an insurance excess; I accept she subsequently repaid him this money. I accept her evidence that, in 2018, Mr Rylan also offered to buy a property with her on a 50/50 basis so that she would eventually be able to have her own home rather than rent: I accept that, whilst she inspected the property, it was out of her price range and, consequently, she did not proceed to take up his offer.Further discussion and conclusion about the existence or otherwise of a de facto relationship In Sinclair &Whittaker[34] the Full Court adopted[35] the observations of Fitzgerald J in Lynam v Director-General of Social Security[36] that:Each element of a relationship draws its colour and its significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test. [34](2013) FLC 93-551 [94].[35] Ibid [55].[36](1983) 52 ALR 128 [131]. I have expressed the findings I have made about various aspects of the evidence seriatim. That I have done so should not be seen as indicating that I have isolated individual factors rather than looking to the “composite picture” of these parties’ relationship as presented by the evidence before me. In my view, the “composite picture” of the relationship between Ms Shelby and Mr Rylan, as established by the evidence, is such that I am not persuaded that they had a relationship as a couple living together on a genuine domestic basis at any time. I consider that they never “lived together”, including when they travelled overseas together; I am not persuaded that there was, really, any mutual commitment to a shared life. I am not persuaded that they were “a couple” between 2007 and 2017. I am persuaded, to the requisite standard that Ms Shelby and Mr Rylan were never in a de facto relationship as that term is defined in the Act and a declaration will be made to that effect.Jurisdiction in relation to the Interveners’ claims Mr Hodgson, who appeared for Ms Shelby, submitted that, if his client failed on what he described as “the threshold issue” and the court did not make a declaration that these two people were in a de facto relationship, the court would not then have jurisdiction to make any orders in relation to whatever debts may have been established as owing to the Interveners.
Ratio Decidendi
Legal Principle Established
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