Father’s Appeal Succeeds: Trial Judge’s Adverse Credit Findings Were Not Reconciled With Objective Evidence About the De Facto Relationship

In Alloway & Longo [2026] FedCFamC1A 152, Campton J allowed the appellant’s appeal from orders declaring that the parties’ de facto relationship ended in October 2021, refusing leave under s 44(6) to bring a de facto property and maintenance claim out of time, and dismissing the appellant’s Pt VIIIAB claims. The appeal succeeded because the primary judge’s reasoning relied heavily on broad adverse credibility findings against the appellant and favourable credibility findings for the respondent, without adequately reconciling those findings with objective evidence, concessions, post-separation sexual relations, holidays, events, co-parenting, tax evidence, property occupation issues and the respondent’s inconsistent evidence. The matter was remitted for rehearing before a different judge.

🧩 Facts and Issues

Facts:

The appellant, Mr Alloway, appealed from a declaration under s 90RD that his de facto relationship with Ms Longo commenced in 2012 and terminated in October 2021. It was uncontroversial that there was a cessation of the relationship in October 2021, but the appellant asserted that the relationship later recommenced in June/July 2022 and finally ended in October 2023.

That date mattered. If the relationship finally ended in October 2023, the appellant’s application for de facto property adjustment under s 90SM would have been within the two-year time limit under s 44(5). If the relationship ended in October 2021, the application was out of time unless leave was granted under s 44(6).

The appellant’s initiating application sought de facto property adjustment, de facto spouse maintenance and parenting orders for the parties’ two children, X and Y. The respondent sought dismissal of the Pt VIIIAB claims for want of jurisdiction and different parenting orders. The appeal proceeded on the basis that the dismissal order concerned only the de facto financial claims, not the unresolved parenting dispute.

The primary judge found that the de facto relationship had not resumed after October 2021, refused leave under s 44(6), and dismissed the Pt VIIIAB proceedings. On appeal, Campton J allowed the appeal, set aside the orders made on 20 March 2026, and remitted the proceedings for rehearing by a different judge.

Issues:

1. Did the primary judge err in concluding that the de facto relationship terminated in October 2021 and did not resume?
2. Were the adverse credit findings against the appellant adequately reasoned?
3. Were the favourable credit findings for the respondent properly reconciled with her concessions and objective evidence?
4. Did the primary judge wrongly use broad credibility findings to reject the appellant’s case about resumed de facto relationship, contributions and property interests?
5. Did the primary judge err in refusing leave under s 44(6)?
6. Should the appeal court determine the de facto issue itself, or remit the matter for rehearing?

⚖️ Applicable Law – Legislation, Regulations, Rules

Family Law Act 1975 (Cth)

• s 4AA — definition and considerations relevant to whether a de facto relationship exists.
• s 44(5) — two-year limitation period for de facto financial proceedings after breakdown of the relationship.
• s 44(6) — leave to institute proceedings out of time.
• s 90RD — declaration as to existence or termination of de facto relationship.
• s 90SK — geographical requirements for Pt VIIIAB jurisdiction.
• s 90SM — alteration of property interests between de facto parties.
• s 95 — overarching purpose.

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

• s 36 — appellate power to affirm, reverse, vary, remit or make orders.

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

• Chapter 7 — single expert evidence framework, relevant because single expert valuation issues were part of the procedural history.

📌 Precedents Relied On

Key authorities included:

• Fairbairn v Radecki — assessment of whether a de facto relationship exists requires weighing the s 4AA considerations; common residence is relevant but not determinative.
• Warren v Coombes — correctness standard for appellate review of a s 90RD determination.
• House v The King — discretionary appellate error, relevant to the refusal of s 44(6) leave.
• Medlow & Medlow and Edmunds & Edmunds — leave to appeal from interlocutory refusal of s 44(6) leave.
• Fox v Percy, Lee v Lee, Robinson Helicopter, Edwards v Noble, and Deodes & Deodes — appellate interference with factual and credit findings where findings are glaringly improbable, contrary to compelling inferences, demonstrably wrong, or inadequately reasoned.
• DL v The Queen — reasons must explain findings critical to the outcome.
• Emerald & Emerald — explanation for delay is relevant but not determinative in a s 44(6) discretion.

🧠 Analysis

Issue

Did the primary judge wrongly dismiss the appellant’s de facto property and maintenance claims by relying on inadequately reasoned credibility findings and an erroneous approach to the out-of-time application?

Rule

A declaration under s 90RD requires the Court to determine whether a de facto relationship existed, and when it ended, by reference to the statutory considerations in s 4AA. The inquiry is evaluative. It is not answered by one factor alone, such as whether the parties had one residence.

A trial judge may make credibility findings, but serious adverse findings — particularly findings that a party was not truthful, gave false evidence or was deliberately unreliable — require a cogent foundation. In family law, emotionally charged evidence may be mistaken, reconstructed, self-justifying or unreliable without necessarily being deliberately false.

A judge must also expose the reasoning pathway for findings that are critical to the result. If broad credibility findings are used to reject a party’s case, those findings must be reconciled with objective evidence, concessions and compelling inferences.

For s 44(6) leave, the Court must consider whether hardship would be caused if leave is refused, assess whether the claim has sufficient substance, and then consider relevant discretionary matters. The Court must not finally determine the ultimate property entitlement at the leave stage.

Application

1. The appeal succeeded because the reasons rested on global credibility findings

The core appeal problem was that the primary judge made broad adverse findings against the appellant, including that he was “not a truthful witness”, had given “false” evidence, was “untrue”, “unreliable”, unresponsive, evasive and not credible. By contrast, the respondent’s evidence was described as true and not misleading.

Campton J emphasised that there is a significant distinction between not accepting a party’s evidence and finding that the party gave deliberately false evidence. A finding of false evidence carries serious consequences and requires a cogent and persuasive basis.

That was the first major error. The primary judge did not simply prefer one version over another on specific issues. The reasoning moved from broad adverse credit findings to rejection of the appellant’s case more generally. That approach became unsafe because the global findings were not reconciled with important objective evidence and concessions.

2. Family law evidence should usually be assessed issue by issue

Campton J made an important broader point about family law litigation. Parties often give evidence about highly personal and emotionally charged events. Their recollections may differ because of perception, memory, rationalisation or self-justification. That does not automatically mean one party is deliberately lying.

The appeal judgment warned against using blanket credibility findings as a shortcut. Disbelieving one part of a party’s evidence does not automatically prove the opposite, and it does not automatically destroy their entire case.

That was critical here because the primary judge used adverse credit findings to reject the appellant’s evidence about resumed relationship, occupation of the Suburb H property, parenting contributions and property-related contributions.

3. The respondent’s evidence about sex after separation was not properly reconciled

The appellant said the parties recommenced their sexual relationship in June/July 2022. The respondent’s affidavit did not disclose the resumption or frequency of the sexual relationship after October 2021. In cross-examination, she first described sex as occurring a “handful of times”, then clarified it was “15 times”, and later said it occurred about once a week at the Suburb H property, after which she would stay the night and return to her rental accommodation in the morning.

The problem was not simply that the respondent’s evidence changed. The problem was that the primary judge made a blanket favourable credibility finding for the respondent without explaining how that finding survived these omissions and shifts in her evidence.

That mattered because ongoing sexual relations were relevant to whether the relationship resumed under s 4AA. They were not determinative, but they were significant.

4. Holidays, events and family activities were also not reconciled

The respondent’s affidavit said the parties did not celebrate birthdays, holidays or social events together as a couple after October 2021. But she conceded in cross-examination that after December 2022 the parties went on holidays together to multiple places and attended concerts and music events together.

Again, the appeal point was not that holidays and concerts automatically prove a resumed de facto relationship. The point was that these facts had to be weighed and explained. They were inconsistent with the blanket acceptance of the respondent’s evidence and the blanket rejection of the appellant’s.

The failure to reconcile those matters undermined the reasoning pathway to the finding that the relationship had not resumed.

5. The Suburb H property findings were contrary to compelling inferences

The primary judge accepted the respondent’s evidence that the appellant had been asked to leave the Suburb H property in October 2021, refused, and remained there without agreement. The primary judge also characterised the appellant’s continued occupation as controlling behaviour.

Campton J found that the reasoning for those findings was not exposed. The respondent had attended the Suburb H property after June/July 2022 to have sex with the appellant and was attempting to see if the relationship could be rekindled. The respondent also conceded on appeal that there was no material evidence recording any request for the appellant to vacate the Suburb H property until February 2024, and the appellant left in March 2024, soon after that request.

Those facts created compelling inferences inconsistent with the primary judge’s findings. The conclusion that the appellant remained in the home without agreement, from October 2021 onward, was not adequately explained.

6. The respondent’s tax evidence created a serious credibility problem

The respondent lodged tax returns for the 2023 and 2024 financial years representing that she received rental income for the Suburb H property, which was occupied by the appellant. She obtained deductions of $75,400 in 2023 and $61,675 in 2024. But the primary judge found that the property was not rented out for either period.

Campton J described the primary judge’s reference to “purported tax returns suggesting a negative gearing” as a distortion of incontrovertible facts. The unexplained tension was obvious: the respondent had lodged revenue documents to achieve a financial advantage, yet was still treated globally as a truthful witness.

That did not automatically mean the respondent lied about everything. But it did require analysis. The primary judge did not provide it.

7. The appellant’s parenting contributions were dismissed too broadly

The primary judge found that the appellant’s evidence that he was the “primary carer” was untrue. Campton J held that it was unclear whether that finding related to the period before or after October 2021. Either way, the reasoning was inadequate.

The finding conflicted with the respondent’s concession that the appellant provided support in co-parenting, including school pick-ups and returning the children to the respondent’s separate residence. It also conflicted with findings that his attendance at birthdays, holidays, events and meals was consistent with co-parenting and attempts to rekindle the relationship.

This showed again that the primary judge’s adverse credit findings were doing too much work. They were being used to reject the appellant’s evidence without carefully analysing the issue-specific facts.

8. Grounds 2, 3, 4 and 6(a) succeeded

Campton J found that the identified errors were essential planks in the primary judge’s reasoning. The adverse credibility findings were used as a basis to reject the appellant’s version of events. Those findings were either contrary to compelling inferences or demonstrably wrong in the face of incontrovertible facts, and they materially contributed to the result.

The reasons did not explain why the respondent’s evidence was preferred on the critical subject matters. That inadequacy affected material factual questions central to whether the appellant had failed to establish that the de facto relationship resumed from June/July 2022 and terminated in October 2023.

This was the main reason the appeal succeeded.

9. The appellant did not prove that October 2023 was the only possible termination date

The appellant asked the appeal court to go further and determine that the only conclusion open was that the relationship had resumed in June/July 2022 and finally ended in October 2023. That argument failed.

The appeal court accepted that there were important incontrovertible facts: the parties had children, co-parented after October 2021, resumed sexual relations, attended holidays and social events, and the respondent tried to rekindle the relationship. But those facts did not compel only one conclusion.

Both parties had separate residences after October 2021, and the appellant conceded on appeal that the parties did not conduct themselves in exactly the same roles and manner as before. The character of the relationship after June/July 2022 was different from before October 2021. Therefore, the appeal court did not substitute its own final s 90RD declaration.

10. The s 44(6) refusal was also legally defective

The alternative out-of-time application under s 44(6) was also affected by error. The primary judge was required to assess whether the appellant had sufficient merit and whether hardship would be caused if leave were refused, but without finally determining the property case.

Campton J found legal error because the primary judge went beyond considering the merits of the appellant’s property adjustment case and effectively determined that, at its highest, the claim was worth only about 20% of the net property pool. That ultimate outcome should have been left for trial.

The primary judge also wrongly treated the Suburb H property as the only relevant property, despite evidence that the K Trust held cash from the sale of a business and a motor vehicle of not insignificant value.

11. The property merits analysis was incomplete

Campton J identified multiple gaps in the primary judge’s assessment of the appellant’s prima facie property case. These included:

• no proper analysis of many s 90SM(4) contribution factors;
• no analysis of the disputed source of the $500,000 used to acquire the Suburb H property;
• no adequate analysis of the alleged $100,000 advanced by Ms J;
• inadequate treatment of the appellant’s alleged homemaker, parenting, business-support and property-improvement contributions;
• no engagement with the refinance surplus used to meet mortgage payments from 2022; and
• no adequate assessment of s 90SM(5) matters such as age, health, income and earning capacity.

Those omissions mattered because they infected the conclusion that the appellant’s claim was weak and that refusing leave would not cause hardship.

12. Delay and prejudice were treated incorrectly

The primary judge placed significant emphasis on the appellant not providing a satisfactory explanation for delay. Campton J held that the explanation for delay is not determinative and that the reasoning appeared to use delay as the pivotal starting point before properly addressing hardship and merit.

The appeal court also identified compelling contextual inferences explaining delay: after October 2021 the respondent was exploring rekindling the relationship; on the appellant’s case he believed the de facto relationship had resumed; the parties resumed sexual relations; continued co-parenting; attended events and holidays; and the respondent was not pressing him to vacate the Suburb H property.

The primary judge also found prejudice to the respondent based on the loss of her business, but Campton J said that prejudice was not apparent on the face of the reasons and, on one view, was unsupported.

Conclusion

The appeal was allowed. The orders made on 20 March 2026 were set aside, and the matter was remitted for rehearing before a different judge.

The appellant succeeded because the primary judge’s reasoning relied on serious blanket adverse credibility findings against him and favourable findings for the respondent without adequately explaining how those findings survived important objective evidence and concessions. The errors affected critical factual questions about whether the de facto relationship resumed after October 2021.

The appellant also succeeded on the s 44(6) issue because the primary judge impermissibly went too far in determining the likely outcome of the property claim at the leave stage, failed to properly assess the prima facie merits and hardship, and inadequately considered relevant property and contribution factors.

However, the appeal court did not decide that the relationship definitely resumed and ended in October 2023. That was not the only possible conclusion. Because the required findings were evaluative, the matter had to be reheard.

🧠 Take-Home Lesson

This case is a strong appeal authority on the dangers of blanket credibility findings.

A judge can reject evidence. A judge can prefer one party’s evidence over another. But where credibility findings are critical to the result, especially findings that a party gave false evidence, the reasons must explain why. It is not enough to globally label one party unreliable and the other truthful while leaving unresolved objective contradictions, concessions and documentary evidence.

The case is also important for de facto limitation disputes. A party seeking to prove a later termination date does not win merely because there was sex, co-parenting, holidays, affectionate conduct or attempts to rekindle the relationship. But those facts must be weighed properly under s 4AA. They cannot be brushed aside by unexplained credit findings.

For s 44(6) applications, the lesson is equally sharp: the Court should not conduct a mini-trial and finally determine the property outcome at the leave stage. The question is whether there is enough merit and hardship to justify allowing the claim to proceed, not whether the applicant has already proven the final percentage they will receive.

The practical message: credibility is not a substitute for analysis. Where objective facts cut across the preferred narrative, the Court must grapple with them.