Recently in the decision of Cuan & Kostelac  Fam CAFC 188 a “fly in fly out worker” (fifo) lost her appeal against a declaration that she was in a de facto relationship.
Ms Cuan argued that she and Mr Kostelac were never in a de facto relationship. Her primary argument was that while she lived at Mr Kostelac’s home in a particular town for work purposes, she was a fifo worker who travelled to live with her children in another city for two weeks after each 6 week block of work in Mr Kostelac’s home town.
Ms Cuan said she lived in Mr Kostelac’s home rent free in exchange for carrying out the housekeeping and looking after Mr Kostelac. It was Ms Cuan’s case that she and Mr Kostelac were just friends.
Notably in finding that there was a de facto relationship the following considerations were taken into account:
- Ms Cuan and Mr Kostelac shared a “common residence”, determined by banking records for the period of the relationship which showed withdrawals by Ms Cuan in Mr Kostelac’s town and that the address for those banking accounts was Mr Kostelac’s address;
- A sexual relationship existed between the parties when they were in the same town (although not maintained consistently);
- The parties intermingled their funds in that substantial funds had passed from Mr Kostelac’s account to Ms Cuan and Ms Cuan had used those funds to reduce the mortgages on properties she owned;
- The parties travelled overseas together (even though notably the parties stayed in separate rooms);
- Through limited social interaction in Mr Kostelac’s home town people formed the view that the parties were a couple.
The Full Court of the Family Court found that Ms Cuan did not point to any evidence that the primary judge had overlooked. The Full Court accepted that different judges may have looked at the same facts and arrived at a different decision to that ultimately reached by the primary judge however that did not establish that the primary judge had erred. Ms Cuan’s appeal was dismissed with costs.
If you have any concerns regarding any issues like this – please contact WGC Lawyers – Family Lawyer Tamlyn Leahy on 40461135