Sinclair & Whittaker

Case [2013] FamCAFC 129


FAMILY COURT OF AUSTRALIA

SINCLAIR & WHITTAKER [2013] FamCAFC 129

FAMILY LAW – APPEAL – De facto relationship – consideration of the approach on appeal to be taken on de facto cases – whether the trial Judge erred in making a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) that a de facto relationship of at least two years existed between the parties – whether the trial Judge erred in not giving sufficient weight to contemporaneous representations of the respondent that she was single and not in a de facto relationship – whether the trial Judge erred by failing to give adequate consideration to the appellant’s evidence that he maintained other relationships during the time of the alleged de facto relationship – whether the trial Judge erred in failing to give appropriate weight to particular findings of fact – where the Full Court was satisfied that the trial Judge did not ignore the representations made by the respondent and that the countervailing facts were duly taken into account – where the Full Court was satisfied that the trial Judge, not having accepted that the appellant was engaging in significant relationships with other women at the same time as that with the respondent, cannot be criticised for failing to give them adequate consideration and that the reasoning process that led his Honour to that view does not disclose any error – where the Full Court considered the stand of proof required – no appealable error established – appeal dismissed.

Family Law Act 1975 (Cth) ss 4AA, 79A , 90SM, 94
Evidence Act 1995 (Cth) s 140
Allesch v Maunz (2000) 203 CLR 172
Briginshaw v Briginshaw (1938) 60 CLR 336
Hayes v Marquis [2008] NSWCA 10
Jonah v White [2011] Fam LR 460
Jonah & White (2012) FLC 93-522
Lynam v Director-General of Social Security (1983) 52 ALR 128
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449
APPELLANT: Mr Sinclair
RESPONDENT: Ms Whittaker
FILE NUMBER: SYC 3101 of 2011
APPEAL NUMBER: EA 3 of 2013
DATE DELIVERED: 27 August 2013
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Bryant CJ, Thackray and Aldridge JJ
HEARING DATE: 24 July 2013
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 12 December 2012
LOWER COURT MNC: [2012] FamCA 1050

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Lethbridge SC with Mr Gould
SOLICITOR FOR THE APPELLANT: Harris Freidman Lawyers
COUNSEL FOR THE RESPONDENT: Mr Batey with Mr Schonell
SOLICITOR FOR THE RESPONDENT: Nicholas Eddy & Company

Orders

  1. The appeal be dismissed

  2. The appellant pay the respondent’s costs of the appeal as agreed or as assessed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym  Sinclair & Whittaker  has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 3 of 2013
File Number: SYC 3101 of 2011

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Sinclair & Whittaker [2013] FamCAFC 129
Case
[2013] FamCAFC 129
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CaseChat Overview and Summary

The Full Court of the Family Court of Australia dismissed an appeal brought by Mr Sinclair against a declaration made by Loughnan J that he and Ms Whittaker were in a de facto relationship for the purposes of proceedings under s 90SM of the Family Law Act 1975 (Cth). The appeal was based on several grounds, including the trial Judge's alleged failure to give adequate consideration to contemporaneous representations made by the respondent that she was single and not in a de facto relationship, the trial Judge's alleged failure to give adequate consideration to the appellant's evidence that he maintained other relationships during the time of the alleged de facto relationship, and the trial Judge's alleged failure to give appropriate weight to particular findings of fact. The Full Court found that the trial Judge had not ignored the representations made by the respondent and that the countervailing facts were duly taken into account. The Full Court also found that the trial Judge, not having accepted that the appellant was engaging in significant relationships with other women at the same time as that with the respondent, cannot be criticised for failing to give them adequate consideration and that the reasoning process that led his Honour to that view does not disclose any error. The Full Court considered the standard of proof required and found that the evidence supported a finding that the parties had a relationship as a couple living together on a genuine domestic basis. The appeal was dismissed and the appellant ordered to pay the respondent's costs of the appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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