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Taisha v Peng

Taisha v Peng

Case [2012] FamCA 385 24 May 2012

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FAMILY COURT OF AUSTRALIA

TAISHA & PENG AND ANOR

[2012] FamCA 385

FAMILY LAW – DE FACTO RELATIONSHIP - Dispute as to the relationship - Approach to determining whether a declaration should be made under s 90RD of the Family Law Act 1975 (Cth) - Question of the onus of proof lying with the applicant and the standard of proof being the balance of probabilities - Applicant failed to reach the appropriate standard of proof.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Barry and Dalrymple [2010] FamCA 1271
Briginshaw v Briginshaw (1938) 60 CLR 336
Jonah and White [2011] FamCA 221
Lynam v Director-General of Social Security (1983) 52 ALR 128
Moby and Shulter [2010] FamCA 748
Truman and Clifton (2010) FCWA 91

APPLICANT:

Ms Taisha

RESPONDENT:

Ms Peng

INTERVENOR:

Mr Pan

FILE NUMBER:

MLC

5803

2011

DATE DELIVERED:

24 May 2012

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

2 and 3 May 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Dr Ingleby

SOLICITOR FOR THE APPLICANT:

Macpherson & Kelley

COUNSEL FOR THE 1^ST AND 2^ND

RESPONDENTS:

Mr Mawson SC

SOLICITOR FOR THE 1^ST AND 2^ND

RESPONDENTS:

Lander and Rogers

Orders

That the application filed 15 December 2011 and the response thereto filed 5 April 2012 are both dismissed save as to issues of costs.
That should any party seek costs arising out of these orders, such application be made by written submission and filed and served by no later than 22 June 2012 with such submission being endorsed with the fact that it has been so served on the other party and any recipient of such submission have until 6 July 2012 to file and serve any response and such response be endorsed with the fact that it has been so served on the other party and upon receipt of any such application for costs, it or they be determined in chambers

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5803 of 2011

Ms Taisha

Applicant

And

Ms Peng

Respondent

And

Mr Pan

2^nd Respondent

REASONS FOR JUDGMENT

For about 17 years until October 2010, Ms Taisha lived in a residence with Ms Peng. Before then, during that period and even now, Ms Peng remained married to Mr Pan and they have three (now) adult children.
During the 17 years, at various times, all of these people lived together under the one roof. Sometimes Mr Pan and one of the children lived in another residence but on any view, there was considerable interaction between all of them.
Ms Taisha (as the applicant) alleged that she and Ms Peng (as the respondent) were in a de facto relationship for that 17 years. She now seeks a declaration under s 90RD…

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.

Continue reading Taisha v Peng

Details

AGLC: Taisha v Peng [2012] FamCA 385
Case: [2012] FamCA 385
Decision Date

CaseChat Overview and Summary

In *Taisha v Peng*, the Family Court of Australia considered an application by Ms Taisha for a declaration that she was in a de facto relationship with Ms Peng for approximately 17 years, from 1993 until October 2010. Such a declaration was sought to enable the court to make orders regarding a property dispute between the parties. Ms Peng denied the existence of a de facto relationship, asserting their association was akin to that of a mother and daughter. The court was required to determine whether Ms Taisha had discharged the onus of proving, on the balance of probabilities, that a de facto relationship existed between herself and Ms Peng.

The court's determination hinged on the interpretation and application of section 4AA of the *Family Law Act 1975* (Cth), which defines a de facto relationship. This definition requires that the parties are not legally married to each other, are not related by family, and, having regard to all the circumstances, have a relationship as a couple living together on a genuine domestic basis. The court noted that while the applicant bears the onus of proof on the balance of probabilities, section 4AA(4) grants the court discretion to have regard to such matters and attach such weight as it deems appropriate. However, the court emphasised that this discretion does not ameliorate the fundamental requirement for the applicant to prove the jurisdictional fact of a de facto relationship. The court also considered the meaning of "couple" and "living together on a genuine domestic basis," referencing previous case law that stressed the importance of viewing the relationship as a composite picture rather than isolating individual factors.

The court found that Ms Taisha failed to establish the existence of a de facto relationship on the balance of probabilities. While acknowledging that the parties lived together for an extended period and that there were instances of shared accommodation, the court was not satisfied that the evidence demonstrated they were a "couple living together on a genuine domestic basis." The court noted significant discrepancies in the parties' evidence regarding the nature of their relationship, particularly concerning intimacy and the overall domestic arrangements. The evidence presented by Ms Peng and her family, including her husband and adult children, was found to be more precise and certain, casting doubt on Ms Taisha's assertions. The court concluded that the evidence did not support the claim that the parties had merged their lives to the extent required to constitute a de facto relationship.

Consequently, the application for a declaration of a de facto relationship and the associated property dispute claim were dismissed. The court also made orders regarding costs, requiring any party seeking costs to file written submissions by a specified date, with a further period for responses.

Orders