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The case of Cuan & Kostelac [2017] FamCAFC 188 (12 September 2017) was a Full Court of the Family Court of Australia (“FCA”) appeal heard by Judges’ Strickland, Aldridge and Loughnan. The appellant, Ms. Cuan, appealed to the FCA to reverse an earlier decision made by the Federal Circuit Court of Australia (“FCC”) that she had been in a de facto relationship with the respondent, Mr. Kostelac.



The applicant, Ms. Cuan appealed from an earlier decision in the FCC on 18 October 2016 by Judge Bauman (“primary judge”) in proceedings between her and the respondent, Mr. Kostelac.  In those original proceedings, His Honour made a declaration that pursuant to section 90RD of the Family Law Act 1975 (Cth) (“Act”) a de facto relationship existed between the parties from April 2007 until late 2010.


On appeal to the FCA, the appellant argued that the primary judge had erred in the analysis of the facts, reaching the conclusion that the appellant and respondent were in a de facto relationship.  She argued on appeal, that the opposite conclusion should have been reached by His Honour.  The Court on appeal, accepted the appellant’s submission, that a different Judge could have arrived at a different conclusion based on the facts.  This however, did not establish an error in law or judgment and the appeal was dismissed.


Key Words

Family Law; Appeal; Declaration of de facto Relationship; Family Law Act 1975 (“Act”); appellant challenges findings made by the Judge pursuant to section 4AA(2) of the Act; Appeal from a declaration of a de facto relationship pursuant to section 90RD of the Act; What makes a de facto relationship?; How long before you are in a de facto relationship; What is a de facto relationship in Australian law?


Relevant Law

Family Law Act 1975 (Cth) sections 4AA, 44(5), 44(6), 90RD, 90SB, 90SM



Initial Proceedings within the Federal Circuit Court

The appellant's submission was focused on the facts pertaining to her living situation with the respondent.  Even though she and the respondent had lived together she claimed they had never been de facto partners.  The appellant claimed that she lived at the respondent’s premises in “Town L” from: 1) April 2007 until July 2008; 2) months in late 2008; 3) early 2009; and; 4) again from July to October 2013, as a fly-in-fly-out worker.  The appellant stated that her living with the respondent was based upon an arrangement in which she would live at the premises rent-free in return for looking after the respondent, housekeeping and helping him manage his money. The living arrangements consisted of six-week periods.  Upon completion of a six-week period, the appellant would return for two weeks to “City N” to live with her children.  The appellant claimed that the arrangement was one of convenience. The respondent contested the appellant’s claim, and stated they were in a de facto relationship. The respondent maintained that the relationship began in April 2007, when the appellant moved into the respondent’s premise and lasted until May 2014.


Primary Judge’s Consideration of Applicable Law

The primary Judge was obliged to consider the existence of a de facto relationship under section 90RD of the Act. In interpreting a de facto relationship, His Honor considered section 4AA of the Act, which defines the meaning of a de facto relationship.  Under Section 4AA, a de facto relationship exists if the persons are not legally married, are not related, and considering all the circumstances, they have a relationship as a couple living together on a genuine domestic basis.  Subsection (2) of section 4AA of the Act gives weight to further considerations which may include:

  1. Duration of the relationship;
  2. The nature and extent of their common residence;
  3. Whether a sexual relationship exists;
  4. The degree of financial dependence or interdependence, and any arrangements for financial support;
  5. The ownership, use and acquisition of their property;
  6. The degree of mutual commitment to a shared life;
  7. Whether the relationship is or was registered under a prescribed law of a State or Territory;
  8. The care and support of children; and
  9. The reputation and public aspects of the relationship.

Primary Judge’s Reasoning & Decision

The primary judge agreed with the Respondent’s view after considering the following factors:

  1. The parties had shared a common residence in Town L from April 2007 until sometime in 2010. His Honour formed this conclusion by viewing historical banking records which showed evidence of withdrawals by the appellant in City N and Town L;
  2. There was evidence of a sexual relationship between the parties in Town L;
  3. There had been prevalent intermingling of funds between 2007 and 2010.  The appellant had authority to use the respondent’s bank accounts.  She had transferred substantial funds to her account from the respondent’s account, which were used to reduce mortgages over two properties she owned;
  4. The appellant and respondent had travelled overseas together between 2010 and 2014 on several occasions.
  5. Despite the limited social interactions with other persons in Town L, the public would have formed the view that the parties were a couple;
  6. Contrary evidence was provided by the appellant’s children, who first met the respondent in 2010.  The children maintained that the pair did not appear to be a couple.  
The Appeal
 On appeal, the appellant placed significant weight on particular circumstances that the primary judge had previously considered.  Ultimately, the appellant was unsuccessful in overturning His Honour’s decision on the legitimacy of the de facto relationship.  On appeal, it was concluded that there was no legal error by His Honour.  It was determined that the relevant factors were appropriately considered by His Honour and that the weighting of those factors alone could not demonstrate an error of law.
 Appellant’s Submissions
 The appellant focused on 13 factors she believed defeated both the finding as to a common residence and the existence of a de facto relationship:
  1. When not working in Town L, the appellant stayed in City N at her son’s house until late 2009;
  2. In late 2009, she commenced living with her daughter in City N;
  3. Between mid-2007 and mid-2008, the appellant kept only minimal personal possessions in Town L;
  4. On 11 February 2008, the appellant’s employment in Town L was terminated;
  5. From 10 April 2008, until 26 September 2008, the appellant received Newstart payments;
  6. In July 2008, the appellant returned to City N to live with her son;
  7. The appellant purchased a second property in City N, in November 2008 in her own name;
  8. The appellant returned to Town L in the latter half of 2008, and worked there from 10 December 2008 until 25 February 2009;
  9. In April 2009 until March 2010 the appellant was living in City N;
  10. The appellant denied any sexual relationship with the respondent; and
  11. In June 2010, having retired, the respondent started to receive the aged pension at the single rate.

Applicable Law Used to Assist the Court in Deliberation

The Court of Appeal set out the principles that apply when considering an appeal, which was summarized in Robinson Helicopter Company Incorporated v McDermott (2016) 331 ALR 550. The Court of Appeal is bound to conduct a “real review of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the judge has erred in fact or law”.  Nevertheless, “a court of appeal should not interfere with a judge’s finding of fact unless they are demonstrated to be wrong by incontrovertible facts or uncontested testimony or they are glaringly improbable or contrary to compelling inferences”.


In Sinclair & Whittaker (2013) FamCAFC 129 (“Sinclair”) a case focused on the existence of a disputed de facto relationship, the Court said that in reaching its determination that the couple had a de facto relationship, the Court is to have regard to all of the circumstances of the alleged relationship.  Those circumstances may include the factors mentioned above in subsection (2) of section 4AA.  Subsection (2) of section 4AA is clarified by subsection (3) of section 4AA which provides that no finding in relation to any particular circumstance can be regarded as necessary or paramount in deciding whether the subject persons have a de facto relationship.  Finally, per subsection (4) of section 4AA, a Court ultimately determines whether a de facto relationship exists and the Judge can attach weighting to any matter, as may seem appropriate to the Court in the circumstances of the case.


In Lynam v Director-General of Social Security (1983) 53 ALR 128, it was stated that, “it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test” and “Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of an error”.


Court’s Reasoning & Decision

The previous jurisprudence was relied on and reiterated by the Court of Appeal.  The determination of a de facto relationship is subject to the holistic consideration of the evidence provided.  Where no error of law or consideration can be identified, then the decision stands, even if another judge may have reached a different conclusion with the same set of facts.


The primary judge’s finding, that the respondent and appellant shared a common residence until 2010 is in itself as per Sinclair and section 4AA of the Act, not determinative of a de facto relationship.  The sharing of a common residence is but one circumstance of many that the Court is entitled to give weight and consideration to.


The appellant submitted that it was incumbent upon the Court to determine the period of the relationship.  The Court rejected that submission, and referred to section 90RD(2) of the Act. Under the relevant section, the Court ‘may’ declare the period of the relationship, but it is not obliged to do so.  Thus, the end date of the appellant’s de facto relationship was not determined by the Court as necessary.


The appellant also challenged the primary Judge’s findings, of the existence of a sexual relationship between her and the respondent.  The appellant submitted that the Court of Appeal should set aside such a finding.  The Court emphasized that such a submission was a misunderstanding of an Appeal Court’s function.  An appellate Court can only set aside an Order if the appeal is successful and it has no authority to set aside findings.


In the appellants favor, the Court found that the primary judge failed to give sufficient regard to evidence submitted by the appellant or her children.  Nevertheless, this was not fatal to the primary judge’s conclusion, as per Whisprun Pty Ltd v Dixon (2003) 200 ALR 447, a trial judge is not obliged to refer to every piece of evidence in a case.  The weighting of evidence is further noted in Sinclair, where a level of deference is given to the trial Judge in the weighting they assign particular aspects of evidence.



Appeal Dismissed and appellant to pay the Respondent’s costs of appeal.



When a Court determines the existence of a de facto relationship, they are granted a great deal of deference and discretion in determining the weight assigned to individual circumstances, proving or discrediting the existence of that relationship. The determination of such a relationship is based upon the unique circumstances, with no two cases exactly alike. The litigation of a de facto relationship usually requires extra diligence, as the facts remain open to interpretation, largely within the Judge’s discretion.


If you or anyone you know believes you may have been in a de facto relationship, and require legal assistance in resolving a property settlement or parenting matter, please call us on 1800 572 417 today and speak with one of our Family Lawyers. 

Luke is currently studying for a Bachelor of Business Communication degree, majoring in Public Relations & Bachelor of Law (LLB) specializing in Corporate and Commercial Law.
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