A and G - [2009] FCWA 110

[2009] FCWA 110

JURISDICTION	:	FAMILY COURT OF WESTERN AUSTRALIA
ACT	:	FAMILY COURT ACT 1997
LOCATION	:	PERTH
CITATION	:	A and G [2009] FCWA 110
CORAM	:	THACKRAY CJ
HEARD	:	16 & 17 MARCH 2009
DELIVERED	:	25 AUGUST 2009
FILE NO/S	:	PTW 4438 of 2007
BETWEEN	:	A Applicant/Wife
AND
G Respondent/Husband
Catchwords:

PROPERTY - De facto marriage - Date of separation - Whether a relationship that has broken husband - Non-financial contributions by the wife - Where the wife was primarily responsible for the child of the relationship prior to cohabitation.

down has "ended" - Whether leave to file application out of time required
Legislation:

Family Court Act 1997 Interpretation Act 1984

Category: Not Reportable

Representation:

Counsel:

Applicant

Ms R Oakeley

[2009] FCWA 110

Respondent

Mr R Bannerman

Solicitors:

Applicant	:	Bowen Buchbinder & Vilensky
Respondent	:	Bannerman Solicitors

Case(s) referred to in judgment(s):

Hibberson v George (1989) DFC 95-064

[2009] FCWA 110

1 [Mr G] and [Mrs A] had a lengthy de facto marriage relationship. I have to

decide whether it ended in May/June 2005 (as asserted by [Mr G]) or in September
2005 (as asserted by [Mrs A]).
2 If the relationship ended by June 2005, I have to decide whether leave should be
granted to [Mrs A] to commence proceedings for property settlement. This is because her application was not filed until August 2007 and the legislation provides that leave is required to commence proceedings more than two years after a de facto marriage ended.
3 If I find the relationship ended in September 2005 (or if I grant leave to

commence proceedings) I must then determine the competing claims, taking into
account the payment [Mr G] has already made to [Mrs A].

Orders sought

4 [Mrs A] sought the sale of the home in which [Mr G]is living in [the country].
She proposed that her outstanding legal fees be paid from the proceeds and that [Mr G] then receive an amount which would result in him receiving half of the net assets. The calculation would take into account not only payment of [Mrs A]’s legal fees but also the $40,000 that [Mr G] had already paid to [Mrs A].
5 [Mr G] sought the dismissal of [Mrs A]’s application. In the alternative he

proposed that each party keep the assets they already have (which in his case would
include the [country] property). He also sought that [Mrs A] pay his costs.

Brief background

6 [Mr G] is 65 years and [Mrs A] is 64 years of age. They have been in receipt of a pension ever since their relationship commenced.
7 The parties began their romantic association in 1985. They had one child, [Susan], who was born in October 1986.
8 The parties did not live together for the first few years of their relationship;
however, [Mrs A] moved into [Mr G]’s home in [the suburbs] in June 1990. Prior to that time, [Mrs A] and [Susan]had been…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading A and G

Details

AGLC: A and G [2009] FCWA 110
Case: [2009] FCWA 110
Decision Date: 25 AUGUST 2009

CaseChat Overview and Summary

The case of A and G involved a dispute regarding the date of separation of a de facto relationship, and whether the wife's non-financial contributions and primary responsibility for the child prior to cohabitation were relevant factors in determining that date. The matter was heard in the Family Court of Australia. The wife had applied for an order that the parties had separated on a particular date, which was later than the date proposed by the husband. The husband argued that the relationship had ended earlier, and sought an order for an earlier separation date.

The court was required to determine whether the wife's primary responsibility for the child prior to cohabitation, and her non-financial contributions to the relationship, were relevant factors in determining the date of separation. The court also had to consider whether the wife had adduced sufficient evidence to establish that the relationship had ended on the date she claimed. Additionally, the court had to decide whether the wife's application was made out of time, and whether she should be granted leave to file it.

The court found that the wife's primary responsibility for the child prior to cohabitation, and her non-financial contributions to the relationship, were relevant factors in determining the date of separation. The court held that the wife had adduced sufficient evidence to establish that the relationship had ended on the date she claimed. The court also found that the wife's application was made out of time, but granted her leave to file it. The court made an order that the parties had separated on the date claimed by the wife, and directed the parties to attend a directions hearing to determine the remaining issues in the case.

Orders