Family law: December 2017

Property – ‘fly in fly out worker’ was in a de facto relationship

In Cuan & Kostelac [2017] FamCAFC 188 (12 September 2017) the Full Court (Strickland, Aldridge & Loughnan JJ) dismissed with costs Ms Cuan’s appeal against Judge Baumann’s declaration that she and Mr Kostelac had lived together in a de facto relationship. She argued that the parties were never de facto partners, that while she lived at the respondent’s home in ‘Town L’ she was a fly in fly out worker who travelled to live with her children in ‘City N’ for two weeks after each six week block of work in Town L. She said that in Town L she lived in the respondent’s flat rent-free in exchange for her looking after him, doing his housekeeping and helping him manage his money (at [4]). She said that they travelled overseas together between 2010 and 2014 as friends. Judge Baumann found that the parties lived together in a de facto relationship between April 2007 and late 2010, also granting the respondent leave to issue his property proceedings pursuant to s 44(6).

The Full Court said (at [7]) that Judge Baumann, in the context of the matters set out in s 4AA(2) of the Family Law Act, had found:

• a common (though not exclusive) residence in Town L;
• a sexual relationship (in Town L only);
• significant intermingling of funds (Ms C had authority to operate Mr K’s bank accounts. $93,000 had passed from his accounts to hers and been used to reduce mortgages over two properties of hers in City N);
• overseas travel but not as a mutual commitment to a shared life (separate rooms or beds);
• others in Town L saw them as a couple (although little evidence);
• evidence of Ms C’s children that the relationship was not intimate.

The Full Court said (at [15]) that ‘if the finding of a de facto relationship is open on the evidence then no error will be identified, even if other judges may have come to a different conclusion’.