Vu & Ton (No 4)

Case [2022] FedCFamC1F 668

Federal Circuit and Family Court of Australia

(DIVISION 1)

Vu & Ton (No 4) [2022] FedCFamC1F 668

File number(s): MLC 7739 of 2019
Judgment of: KARI J
Date of judgment: 05 September 2022
Catchwords: FAMILY LAW - DE FACTO RELATIONSHIPS – Threshold issue - Existence of de facto relationship – Where the Respondent seeks a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) that a de facto relationship existed – Where the parties agree they were in de facto relationship in Country AA - Where the Applicant denies the existence of a de facto relationship in Australia – Consideration of the nature of that relationship – Findings as to credit of the witnesses – Where the court was left with significant doubt as to the reliability of both parties evidence - Held that a de facto relationship did exist from 2009 until 2012 (in Country AA), and 09 July 2015 until 23 June 2019 (in Australia) – Where a conflict arose over the use of a specific interpreter during the course of the trial – held to be a direct consequence of the applicant, resulting in wasted hearing time - Where the Applicant is ordered to pay the Respondent’s costs thrown away for lost hearing time related to interpreter issues
Legislation:

Evidence Act 1995 (Cth)

Family Law Act 1975 (Cth)
Cases cited:

Colgate-Palmolive Co v Cussons Pty  Ltd [1993] FCA 801; 46 FCR 225

Jonah & White [2012] FamCAFC 200; FLC ¶93–552;

Kohan and Kohan [1992] FamCA 116; (1993) FLC 92-340

Sinclair & Whitaker [2013] FamCAFC 129; FLC 93 – 55

Vu & Ton (No 3) [2022] FedCFamC1F 95

Recommended National Standards for Working with Interpreters in Courts and Tribunals (2017)
Division: Division 1 First Instance
Number of paragraphs: 178
Date of hearing: 7 –11, 15, 17, 21-25 February 2022 and 10 March 2022
Place: Adelaide (via video link)
Counsel for the Applicant: Mr Hall
Solicitor for the Applicant: Hiways Lawyers
Counsel for the Respondent: Dr Smith
Solicitor for the Respondent: Landers And Rogers

ORDERS

MLC 7739 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR VU

Applicant
AND:

MS TON

Respondent

order made by:

KARI J

DATE OF ORDER:

05 September 2022

THE COURT ORDERS THAT:

1.That pursuant to section 90RD of the Family Law Act 1975 (Cth) (“the Act”), there be a declaration that a de facto relationship existed between the parties between the following dates:

(a)2009 and May 2012 in Country AA; and

(b)9 July 2015 and 23 June 2019 in Victoria, Australia.

2.That the following paragraphs of the parties competing applications for final orders be dismissed:

(a)Paragraphs 5 and 6 of the Applicant’s Further  Amended Initiating Application filed 24 July 2020; and

(b)Paragraph 2 of the Respondent’s Further Amended Response to Initiating Application filed 24 September 2020.

3.That to the extent that it is necessary, pursuant to section 44(6) of the Act, the Respondent be given leave to proceed out of time with…

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Details
AGLC
Vu & Ton (No 4) [2022] FedCFamC1F 668
Case
[2022] FedCFamC1F 668
Decision Date

CaseChat Overview and Summary

The case of Vu & Ton (No 4) involved a dispute between the Applicant, Mr Vu, and the Respondent, Ms Ton, regarding the existence of a de facto relationship. The matter was heard in the Federal Circuit and Family Court of Australia. The primary issue before the court was whether a de facto relationship existed between the parties, and if so, during what periods. Additionally, the court had to address the impact of the Applicant's conduct on the proceedings, specifically regarding the use of an interpreter.

The court found that a de facto relationship existed between the parties in two separate periods: from 2009 until May 2012 in Country AA, and from 9 July 2015 until 23 June 2019 in Victoria, Australia. This conclusion was based on the nature of the relationship and the evidence presented by both parties. The court noted significant doubt about the reliability of the evidence provided by both parties, as they often made self-serving statements and had difficulty answering questions directly. Despite these challenges, the court was able to discern credible evidence from both parties that supported the existence of a de facto relationship during the specified periods.

The court also addressed the Applicant's conduct in relation to the use of an interpreter during the trial. The Applicant's insistence on using a specific interpreter led to significant delays and wasted hearing time, which the court attributed directly to the Applicant. Consequently, the Applicant was ordered to pay the Respondent's costs associated with the lost hearing time.

In summary, the court declared the existence of a de facto relationship between the parties during the specified periods and ordered the Applicant to pay the Respondent's costs due to the wasted hearing time. The case will proceed to further case management to determine the final orders regarding parenting and financial relief.

Orders

Orders of the court

MLC 7739 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR VU

Applicant

AND:

MS TON

Respondent

order made by:

KARI J

DATE OF ORDER:

05 September 2022

THE COURT ORDERS THAT:

1. That pursuant to section 90RD of the Family Law Act 1975 (Cth) (“the Act”), there be a declaration that a de facto relationship existed between the parties between the following dates:

(a) 2009 and May 2012 in Country AA; and

(b) 9 July 2015 and 23 June 2019 in Victoria, Australia.

2. That the following paragraphs of the parties competing applications for final orders be dismissed:

(a) Paragraphs 5 and 6 of the Applicant’s Further Amended Initiating Application filed 24 July 2020; and

(b) Paragraph 2 of the Respondent’s Further Amended Response to Initiating Application filed 24 September 2020.

3. That to the extent that it is necessary, pursuant to section 44(6) of the Act, the Respondent be given leave to proceed out of time with respect to her claim for financial relief pursuant to section 90SM, 90SE and 90SL of the Act.

4. That within 14 days the Applicant do file and serve a Financial Statement, together with any affidavit in support directed to the Respondent’s application pursuant to section 90SM, section 90SE and section 90SL of the Act.

5. That within 28 days, the Applicant do file and serve an Amended Initiating Application setting out the final orders (parenting and financial) that he now seeks.

6. That no later than 14 days thereafter, the Respondent do file and serve an amended Response setting out the final orders (parenting and financial) that she now seeks.

7. That the parties competing applications for parenting and financial relief be listed for mention and case management before Justice Johns on a date to be fixed NOTING that the parties have not attended any alternate dispute resolution process with respect to financial issues.

8. That within 14 days, the Applicant do pay the Respondent’s costs fixed in the amount of $12,215.50.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Otherwise, and much like the de facto wife, the overall impression of the de facto husband was that he was at times evasive during his oral evidence and he was unable to make simple and obvious concessions.Comment on the reliability of the parties’ evidence The overriding observation that can be made about the oral evidence of each of the parties is that each the de facto wife and the de facto husband left the court with significant doubt as to the reliability of the evidence that they each gave. Throughout the course of their oral evidence, each of the parties had a tendency to make self-serving statements in which they continuously repeated what appeared to be a rehearsed and repetitive narrative. Throughout the course of the trial, they each had to be directed by opposing counsel and the court on more than one occasion to answer the question that was being asked. On some occasions when each of the parties had been asked the same question several times over, an answer would finally be given after 10-15 minutes of persistent attempts. At other times, no answer was forthcoming to the question that had been asked. Additionally, throughout their respective oral evidence, each of the parties attempted to make excuses in order to resile from inconsistencies in the information that they had conveyed in their earlier filed affidavit material and/or documents that had been created by each of them or by others on their behalf. While not the only examples, that can be given:(a)On the part of the de facto wife, examples of when this occurred can be found in the evidence she gave regarding the disparate information contained in her visa applications; and(b)On the part of the de facto husband, an example of when this occurred can be found in his attempt to resile from the description of the de facto wife as his “wife” in his will executed while the parties were living together in Australia, when he asserts that the parties were no longer in a de facto relationship. Equally, there were times during the oral evidence of each of the parties that their evidence appeared to be truthful. The difficulty for the court however when there appears to be fluctuations in the levels of the parties candour and honesty, is that it becomes increasingly difficult for the court to discern where the truth might lie. In particular, the risk for the court is that, those matters which appear to be incredulous are actually truthful, and conversely those matters which appear to be truthful are in fact untrue. An example of evidence given by the de facto wife which had the appearance at first blush of being untruthful, but was in fact credible, was an assertion made by her under cross examination that the migration agent she had used to prepare one of her Australian visa applications had asked her to sign on a blank piece of paper and then email that signed document to the agent for that signature to then “pasted” by the agent onto the de facto wife’s completed application. On that answer being given, a call was made by the de facto husband’s counsel in relation to such communications. The de facto wife thereafter was able to produce an email to her from the migration agent in which this specific request was made.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Pursuant to section 90RD, the court has the power to make a declaration about the existence of a de facto relationship. Section 90RD provides as follows:90RD Declarations about existence of de facto relationships (1) If:(a)an application is made for an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL; and (b)a claim is made, in support of the application, that a de facto relationship existed between the applicant and another person;the court may, for the purposes of those proceedings (the primary proceedings), declare that a de facto relationship existed, or never existed, between those 2 persons.(2)A declaration under subsection (1) of the existence of a de facto relationship may also declare any or all of the following:(a)the period, or periods, of the de facto relationship for the purposes of paragraph 90SB(a);(b) whether there is a child of the de facto relationship;(c)whether one of the parties to the de facto relationship made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c);(d) when the de facto relationship ended;(e)where each of the parties to the de facto relationship was ordinarily resident during the de facto relationship. The significance of a declaration being made as to the existence of a de facto relationship arises, is that it provides the gateway for the making of orders pursuant to section 90SM and section 90SE relating respectively to the alteration of property and maintenance as and between the parties to the de facto relationship, together with any declaratory (and consequential orders) in relation to the respective title or rights of the parties to property pursuant to section 90SL. There are however two further requirements that must be satisfied before the court is able to make any orders pursuant to sections 90SM, 90SE and 90SL:(a)Firstly, at least one of the matters set out in section 90SB must be satisfied;(b)Secondly, the geographical requirement set out in section 90SK must be satisfied, Section 90SB and section 90SK of the Act provide as follows:90SB When this Division applies—length of relationship etc.A court may make an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL, in relation to a de facto relationship only if the court is satisfied:(a)that the period, or the total of the periods, of the de facto relationship is at least 2 years; or (b) that there is a child of the de facto relationship; or (c) that:(i)the party to the de facto relationship who applies for the order or declaration made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c); and (ii)a failure to make the order or declaration would result in serious injustice to the applicant; or (d)that the relationship is or was registered under a prescribed law of a State or Territory.90SKGeographical requirement (1)A court may make a declaration under section 90SL, or an order under section 90SM, in relation to a de facto relationship only if the court is satisfied:(a)that either or both of parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the application for the declaration or order was made (the application time); and (b) that either:(i)both parties to the de facto relationship were ordinarily resident during at least a third of the de facto relationship; or (ii)the applicant for the declaration or order made substantial contributions in relation to the de facto relationship, of a kind mentioned in paragraph 90SM(4)(a), (b) or (c);in one or more States or Territories that are participating jurisdictions at the application time;or that the alternative condition in subsection (1A) is met.(1A)The alternative condition is that the parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the relationship broke down.