TEH & MUIR - [2017] FamCA 138

FAMILY COURT OF AUSTRALIA

TEH & MUIR

[2017] FamCA 138

FAMILY LAW – PROPERTY – de facto relationship – final hearing – where applicant alleged a de facto relationship existed – where respondent denies a de facto relationship – where there is evidence that the parties lived under the same roof – where there were no observations of a commitment to a shared life – where conduct of applicant is inconsistent with a loving relationship – Held there was never a de facto relationship.

FAMILY LAW – BINDING FINANCIAL AGREEMENT – where binding financial agreement prepared pursuant to section 90UC of the Family Law Act 1975 (Cth) – where applicant engaged in unconscionable conduct – where respondent suffered from dementia – where applicant engaged in conduct for her own financial advantage – Held binding financial agreement should be set aside.

Family Law Act 1975 (Cth) ss 4AA(1), 4AA(2), 4AA(3), 4AA(4), 90RD, 90UC(1), 90UC(2), 90UJ(1), 90UM(h)
Family Law Amendment (De Facto Financial Matters And Other Measures) Act 2008 (Cth)

Cadman & Hallett (2014) FLC 93-603
Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447
Roy v Sturgeon (1986) 11 Fam LR 271
Weston v The Public Trustee (1986) DFC 95-032

APPLICANT:

Ms Teh

RESPONDENT:

Mr Muir by his case guardian Ms Becke

FILE NUMBER:

ADC

1922

2014

DATE DELIVERED:

10 March 2017

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

24-27 October 2016, 31 October 2016, 1 November 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In person with the assistance of a Cantonese interpreter

COUNSEL FOR THE RESPONDENT:

Ms Hurley

SOLICITOR FOR THE RESPONDENT:

Culshaw Miller Divorce & Family Lawyers

Orders

That there be a finding that the parties were not at any stage in a de facto relationship.
That the financial agreement made 19 February 2015 between the applicant and the respondent be set aside.
That paragraph 2 of orders made 25 June 2014 be discharged and that the balance of any monies remaining in the Trust Account of Culshaw Miller Divorce and Family Lawyers not required for the payment of any outstanding legal fees or any other money in any conveyancer’s or other trust account are thereafter to be made available to the respondent by his case guardian.

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 Teh & Muir 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 ADELAIDE

FILE NUMBER: ADC 1922 of 2014

Ms Teh

Applicant

And

Mr Muir by his case guardian Ms Becke

Respondent

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 TEH & MUIR

Details

AGLC: TEH & MUIR [2017] FamCA 138
Case: [2017] FamCA 138
Decision Date: 10 March 2017

CaseChat Overview and Summary

The case of TEH & MUIR concerned a dispute heard by Berman J in the context of family law. The applicant alleged the existence of a de facto relationship with the respondent, which the respondent denied. Additionally, a binding financial agreement, prepared under section 90UC of the *Family Law Act 1975* (Cth), was challenged.

The court was required to determine two primary legal issues: firstly, whether a de facto relationship existed between the parties, and secondly, whether the binding financial agreement should be set aside. The latter issue involved consideration of whether the applicant engaged in unconscionable conduct, particularly in light of the respondent's dementia and the applicant's pursuit of personal financial advantage.

In reaching its decision, the court found that despite evidence of the parties living under the same roof, there was a lack of observable commitment to a shared life. Furthermore, the applicant's conduct was deemed inconsistent with a loving relationship, leading to a finding that no de facto relationship ever existed. Regarding the financial agreement, the court determined that the applicant's actions constituted unconscionable conduct, exploiting the respondent's dementia for her own financial gain, and therefore the agreement should be set aside.

Consequently, Berman J ordered that there be a finding that the parties were not at any stage in a de facto relationship. The binding financial agreement dated 19 February 2015 was set aside. Further orders were made to discharge a previous order and ensure that any remaining funds in the trust account of Culshaw Miller Divorce and Family Lawyers, after payment of outstanding legal fees, were to be made available to the respondent through his case guardian.

Orders

Orders of the court

That there be a finding that the parties were not at any stage in a de facto relationship.

That the financial agreement made 19 February 2015 between the applicant and the respondent be set aside.

That paragraph 2 of orders made 25 June 2014 be discharged and that the balance of any monies remaining in the Trust Account of Culshaw Miller Divorce and Family Lawyers not required for the payment of any outstanding legal fees or any other money in any conveyancer’s or other trust account are thereafter to be made available to the respondent by his case guardian.

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

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