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WILSON and ROBERTSON

WILSON and ROBERTSON

Case [2021] FCWA 121 9 July 2021

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JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: WILSON and ROBERTSON [2021] FCWA 121
CORAM: TYSON J
HEARD: 3 and 4 MAY 2021
DELIVERED : 9 JULY 2021
FILE NO/S: [Redacted]
BETWEEN: MR WILSON
Applicant
AND
MS ROBERTSON
Respondent

Catchwords:

FAMILY LAW – JURISDICTION – De facto relationship – Whether relationship “marriage-like” – Evaluation of factors indicating a de facto relationship – Where the parties were in a romantic relationship, but never lived together or cohabited in a common residence – Where the relationship was characterised by frequent separations and reconciliations – Where the Court is not satisfied that either party was financially dependent on the other – Where the Applicant made statements to various third parties confirming he and the Respondent were not in a de facto relationship, for which he obtained financial benefit – Where both parties deposed on oath in earlier proceedings, that they were not in a de facto relationship – Where the Respondent lent money to the Applicant, which was documented – Where there is a dispute as to the amount of money, if any, which the Applicant owes and proceedings have been commenced in another Court – Where the Court is not satisfied the parties were in a de facto relationship – Application dismissed – Case turns on its own facts

Legislation:

Family Court Act 1997 (WA)
Interpretation Act 1984 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Self-Represented Litigant
Respondent	:	Mr Rynne

Solicitors:

Applicant	:	Self-Represented Litigant
Respondent	:	Hearty & Tam Family Lawyers

Case(s) referred to in decision(s):

Brandi v Mingot (1976) 51 ALJR 207
Chan v Mazurkiewicz [2015] WASC 432
Clarence & Crisp (2016) FLC 93-728

Elias and Elias (1977) FLC 90-267
G v O (2018) 369 ALR 346
GLS v Russell-Weisz (2018) 52 WAR 413
H v P [2011] WASCA 78
In re LC (Children) (Reunite International Child Abduction Centre intervening) [2014] UKSC 1
Jones v Dunkel (1959) 101 CLR 298
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361
Lynam v Director-General of Social Security (1984) FLC 91-577
MW v Director-General, Department of Community Services (2008) 82 ALJR 629
Re F: Litigants in person guidelines (2001) FLC 93-072
Ryan v Zekas [2020] WASC 124
Scherini v Conwell [2018] WASC 172
Sinclair & Whittaker (2013) FLC 93-551
Truman and Clifton [2010] FCWA 91
Wilson and Wilson [2016] FCWAM 174

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wilson and Robertson has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).

TYSON J:

1[Mr Wilson] claims he and [Ms Robertson] were in a de facto relationship from 2013 until 2019, and the Court has jurisdiction, pursuant to the Family Court Act1997 (WA) (“the Act”) to deal with his application for property settlement.…

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 WILSON and ROBERTSON

Details

AGLC: WILSON and ROBERTSON [2021] FCWA 121
Case: [2021] FCWA 121
Decision Date: 9 JULY 2021

CaseChat Overview and Summary

In the matter of Wilson and Robertson, the Family Court was tasked with determining whether the parties were in a de facto relationship for the purposes of the Family Law Act. The Applicant sought to establish a de facto relationship with the Respondent to claim a share of the Respondent’s estate, but the Respondent denied any such relationship existed. The Court had to consider the various factors traditionally evaluated in determining whether a de facto relationship exists, including the nature and duration of the relationship, financial dependence, and common reputation.

The primary legal issue was whether the relationship between the Applicant and the Respondent was sufficiently marriage-like to be recognised as a de facto relationship under the Family Law Act. The Court examined the evidence and submissions on the nature and extent of their relationship, considering whether it exhibited the characteristics of a de facto relationship, despite the parties not living together or being financially dependent on one another. The Court was particularly attentive to the conduct and statements of the parties, including the Applicant’s public declarations to third parties that he and the Respondent were not in a de facto relationship, which the Applicant used to his financial advantage.

In reaching its decision, the Court determined that the relationship did not meet the threshold of a de facto relationship as required by the Family Law Act. The evidence indicated that the relationship was marked by frequent separations and reconciliations, and neither party demonstrated a level of financial dependence or shared living arrangements typically associated with a de facto relationship. The Applicant’s contradictory statements and actions, along with the parties’ sworn statements in earlier proceedings that they were not in a de facto relationship, further supported the Court’s conclusion. Given these findings, the Court dismissed the Applicant’s application.

The Court made a final order dismissing the Applicant’s claim for recognition of a de facto relationship with the Respondent. The decision underscored the necessity of a comprehensive evaluation of all relevant factors to ascertain whether a relationship meets the statutory definition of a de facto relationship.

Orders