Yoxall & Eide

Case [2024] FedCFamC1A 200

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Yoxall & Eide [2024] FedCFamC1A 200

Appeal from: Eide & Yoxall (No 2) [2024] FedCFamC1F 320
Appeal number: NAA 142 of 2024
File number: MLC 2724 of 2021
Judgment of: AUSTIN, GILL & BAUMANN JJ
Date of judgment: 29 October 2024
Catchwords: FAMILY LAW – APPEAL – DE FACTO RELATIONSHIP – Appeal from the primary judge’s s 90RD declaration as to the parties’ relationship – Where the appellant asserts apprehended bias – No finding of apprehended bias – Where the appellant asserts the primary judge took into account extraneous matters – Where it is not demonstrated the primary judge improperly took into account extraneous matters – Where the appellant asserts the primary judge made an order against the weight of evidence or gave inadequate reasons – Error of fact established as to the commencement of the parties’ relationship – Error corrected by a substituted order – Costs certificates granted.
Legislation:

Family Law Act 1975 (Cth) Pt VIIIAB, ss 4AA, 90RD, 90SB, 90SE, 90SM

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 36

Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 9

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Sch 1, r 1

Cases cited:

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148

Cizek & Mihov [2024] FedCFamC1A 151

Colburn & Cleese (2022) FLC 94-105; [2022] FedCFamC1A 147

Concrete Pty Ltd v Parramatta Design & Development Pty Ltd and Anor (2006) 229 CLR 577; [2006] HCA 55

De Winter v De Winter (1979) FLC 90-605

Ebner v Official Trustee in Bankruptcy and Ors (2000) 205 CLR 337; [2000] HCA 63

Fairburn v Radecki (2022) 275 CLR 400; [2022] HCA 18

GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635; [2023] HCA 32

Hedlund & Hedlund (2021) FLC 94-065; [2021] FedCFamC1A 84

House v The King (1936) 55 CLR 499; [1936] HCA 40

Lennon & Sanil (2020) FLC 93-962; [2020] FamCAFC 109

Lynam v Director-General of Social Services (1984) FLC 91-577; [1983] FCA 274

Sun Alliance Insurance Ltd v Massoud [1989] VR 8

Velichkov & Velichkov [2024] FedCFam1CF 150

Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9

Number of paragraphs: 138
Date of hearing: 28 August 2024
Place: Melbourne
Counsel for the Appellant: Ms Mooney SC & Ms Fisken
Solicitor for the Appellant: Belleli King & Associates
Counsel for the Respondent: Ms Tulloch & Mr Ellis
Solicitor for the Respondent: JAG Lawyers

ORDERS

NAA 142 of 2024
MLC 2724 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MR YOXALL

Appellant
AND:

MS EIDE

Respondent

ORDER MADE BY:

AUSTIN, GILL & BAUMANN JJ

DATE OF ORDER:

29 OCTOBER 2024

THE COURT ORDERS THAT:

1.The appeal is allowed.

2.Order 1 made on 16 May 2024 is set aside and…

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AGLC
Yoxall & Eide [2024] FedCFamC1A 200
Case
[2024] FedCFamC1A 200
Decision Date

CaseChat Overview and Summary

The case of Yoxall v Eide involves an appeal from a decision made by a primary judge concerning the existence of a de facto relationship between the parties. The appellant, Mr Yoxall, challenges the primary judge’s determination that a de facto relationship existed between him and the respondent, Ms Eide, and seeks to overturn the declaration made under section 90RD of the Family Law Act 1975 (Cth). Mr Yoxall contends that the primary judge exhibited bias, improperly considered extraneous matters, and made an order against the weight of evidence. The legal issues before the court were whether the primary judge exhibited bias, whether extraneous matters were taken into account, and if the decision was against the weight of evidence. The court considered the arguments made by Mr Yoxall and examined the primary judge’s reasons and the evidence presented. The court found that while there was an error in the date of the commencement of the de facto relationship, no bias was demonstrated, and the primary judge did not improperly consider extraneous matters. The court concluded that the primary judge's comments were directed towards the resolution of all proceedings and did not indicate prejudgment on the threshold issue. The appeal was allowed, and the declaration was corrected to reflect the accurate date of the end of the de facto relationship.

The court’s reasoning was based on the established legal principles that an appeal by rehearing requires the appellant to demonstrate appealable error. The court examined the primary judge’s comments and determined that they did not suggest prejudgment or bias. The court noted that the primary judge made clear that her decision was based on the evidence and the law, and she acknowledged the personal aspects of the case but focused on the legal requirements. The court found that the primary judge’s comments about the potential for settlement were relevant to the overall resolution of the proceedings and did not indicate bias or consideration of extraneous matters. The court also found that the error regarding the commencement date of the de facto relationship was a factual error that could be corrected. The court granted costs certificates to both parties, recognising the efforts and expenses incurred in the appeal.

Orders

Orders of the court

NAA 142 of 2024

MLC 2724 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR YOXALL

Appellant

AND:

MS EIDE

Respondent

ORDER MADE BY:

AUSTIN, GILL & BAUMANN JJ

DATE OF ORDER:

29 OCTOBER 2024

THE COURT ORDERS THAT:

1. The appeal is allowed.

2. Order 1 made on 16 May 2024 is set aside and in lieu thereof it is declared pursuant to s 90RD of the Family Law Act 1975 (Cth) that a de facto relationship existed between the parties, ending in December 2020.

3. The appellant be granted a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to him in respect of the costs incurred by him in relation to the appeal.

4. The respondent be granted a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to her in respect of the costs incurred by her in relation to the appeal.

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).

Background

Background to the litigation

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Evidence

Evidence Before The Court

Just as the primary judge prefaced this exchange with her acknowledgement that the decision she was to make was both narrowly confined and it did not incorporate these other factors personal to the parties that are germane to settlement, so she book ended this passage:[HER HONOUR:] Anyway, I just say that maybe turn your mind to that between now and 8 November. I mean, I will make the decision on the evidence that I’m required to make according to the law?[THE APPELLANT:] ‑‑‑No, no. It’s hard for you, too. [HER HONOUR:] Of course it is. But, as I said, I always think about the personal aspect of it. You can’t think about that when you’re dealing with the lives of children and people. Why would you want to be locked in some cycle of fighting with the mother of your daughter? You may not like each other personally, but at one stage you did?[THE APPELLANT:] ‑‑‑Mmm.(Transcript 7 September 2023, p.416 lines 33–41) (Emphasis added) The primary judge again exhorted the appellant to consider settlement, observing the exhausting nature of such conflict. It was against these comments that the appellant claimed the appearance of prejudgment in the sense of a determination to make substantive orders regardless of the merits of the threshold issue of jurisdiction. It was submitted to the primary judge that any reference to payment was both improper and indicative of bias because payment requires the determination of the threshold jurisdictional issue. It was submitted that the comments left the impression that the primary judge may take into account extraneous matters. The primary judge concluded that a fair-minded lay observer would not, in the context, consider the comments as directed other than to the resolution of all proceedings, rather than just the threshold proceedings, particularly when specific reference had been made, in the absence of such settlement, to determination of the threshold issue. Similarly, the primary judge concluded that her comments would not have the effect of leading a fair-minded lay observer to consider that her purpose in hearing the threshold proceedings, was to ensure there were sufficient funds for a home, or that the appellant was unreasonable to challenge jurisdiction, or that payment to the respondent was the only reasonable outcome. The question to resolve then is whether the primary judge was incorrect in such a conclusion. An appeal by rehearing, as this is, cannot succeed unless the appellant demonstrates appealable error (Allesch v Maunz (2000) 203 CLR 172 at 179–181 and 187). It is axiomatic that no order for the payment of money could be made absent the finding of a de facto relationship. Similarly, the other matters raised by the primary judge can be accepted as being matters that do not bear upon the determination of the jurisdictional prerequisite. As to the matters that do not go to the determination of the threshold issue, it may be accepted that, as identified by the primary judge, the parties were required by Sch 1, Pt 1, r 1(5) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) as they apply to financial proceedings, to have regard to the child’s best interests. This is so whether or not those best interests form a consideration in determining the matter before the court. As a matter of practicality, it may be accepted that a settlement would in all likelihood involve, as described by the primary judge, a payment to the respondent by the appellant. Other factors raised by the primary judge in her exchange with the appellant were plain in the proceedings, being the financial disparity between the parties, the poor nature of their relationship, their status as coparents of their child, and their involvement in multiple fronts of litigation involving each other.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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