De facto relationship found by lower court judge without error

De facto relationship found by lower court judge without error

  1. Ms Cuan (“the appellant”) appeals from a decision of Judge Baumann given on 18 October 2016 in proceedings between her and Mr Kostelac (“the respondent”). On that day his Honour made a declaration that pursuant to s 90RD of the Family Law Act1975 (Cth) (“the Act”) a de facto relationship existed between the parties from April 2007 until late 2010. The effect of that declaration was that the proceedings, which had been filed by the respondent in December 2014, had been commenced out of time. Accordingly, the primary judge also determined that leave should be granted pursuant to s 44(6) of the Act to allow the respondent to institute property proceedings against the appellant.
  2. The court dealt with the issue as to whether and for what period a de facto relationship existed between the parties as a threshold issue. As such, the respondent’s application for an adjustment of the parties’ interests in their property pursuant to s 90SM of the Act has not yet been dealt with.
  3. Before the primary judge, the respondent contended that there was a de facto relationship between the parties, which began in April 2007 when the appellant commenced to live in the respondent’s premises at Town L and lasted until May 2014.
  4. For her part, the appellant contended that there had never been such a relationship. It was her case that whilst she lived at the respondent’s premises, it was only from April 2007 until July 2008 and some months in late 2008 and early 2009 and July to October 2013. She asserted that she was a fly in fly out worker who returned from Town L to live with her children in City N for two weeks after each six week period of work and that she returned to live in City N permanently when her employment in Town L ceased. The arrangement in Town L was that she would live in the respondent’s flat rent free in return for looking after him, providing housekeeping and helping him to manage his money. Whilst she accepted that the parties became friends and later travelled overseas together between 2010 and 2014, she maintained that the relationship never moved beyond that.
  5. The primary judge was therefore obliged to consider whether a de facto relationship existed in accordance with the provisions of s 90RD.

The primary judge found that there was a de facto relationship between April 2007 and late 2010 after taking into account the following considerations:

  • The parties shared a common residence in Town L from April 2007 to sometime in 2010. The latter date was arrived at by looking at, in particular, banking records which showed withdrawals by the appellant in City N and Town L at different periods, the addresses to which those accounts were sent and the appellant’s employment history (at [29]).
  • A sexual relationship existed between the parties in Town L only. The primary judge was not satisfied that sexual relations were maintained consistently after 2010 (at [31]).
  • Between 2007 and 2010 there was significant intermingling of funds. The appellant had authority to operate the respondent’s bank accounts. The primary judge was satisfied that substantial funds had passed from the respondent’s bank accounts to the appellant’s and had then been used by her to reduce mortgages over two properties she owned in City N. Her evidence that those transferred funds had been repaid or used for the benefit of the respondent was not completely accepted by the primary judge, who described her evidence on this issue as being “in some instances vague, unreliable or, in the case of the alleged repayment for funeral expenses of $30,000, simply unconvincing” (at [32] – [38]).
  • The parties travelled overseas on a number of occasions between 2010 and 2014. The primary judge regarded this as being indicative of friendship only and not of a commitment to a shared life. When travelling the parties stayed in separate rooms except for one occasion when separate beds were arranged (at [40]).
  • Albeit limited, the evidence of social interaction with other persons in Town L led the primary judge to accept that those people formed the view that the parties were a couple (at [44]).
  • The evidence of the appellant’s children (who only met the respondent in 2010 and only in City N and overseas) that the parties did not appear to have a close or intimate relationship was consistent with the de facto relationship ending sometime in 2010 (at [45]).
  1. The appellant did not point to any evidence which was obviously overlooked by the primary judge. Rather, the contention was that when the facts were properly analysed, a different result would have been arrived at. We accept that different judges may have looked at these same facts and properly arrived at a different result. That, however, does not establish error.
  2. There is no merit in this ground.


  1. Having found no merit in any of the grounds, the appeal will be dismissed.


  1. The appeal was wholly unsuccessful. As was accepted by counsel for the appellant, the appropriate order for costs therefore is that the appellant pay the respondent’s costs of the appeal.


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