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.
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
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Sinclair & Whittaker [2013] FamCAFC 129
Case
[2013] FamCAFC 129
Decision Date
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.