ABALOS & HALDER - [2019] FamCA 963

FAMILY COURT OF AUSTRALIA

ABALOS & HALDER

[2019] FamCA 963

FAMILY LAW – DE FACTO RELATIONSHIPS – threshold issue – where the applicant seeks a declaration pursuant to s90RD of the Family Law Act 1975 (Cth) as to the existence and duration of a de facto relationship – where the parties lived in premises rented and paid for by the respondent – where the applicant moved to other rented accommodation for approximately one year before returning to live with the respondent – consideration of the nature of the relationship during these periods – where it is held that the parties were in a de facto relationship during the entirety of the period from 8 February 2014 to May 2017

Family Law Act 1975 (Cth) ss 4AA, 90RD, 90SM, 90SB(a)
Evidence Act 1995 (Cth) s140
Family Law Rules 2004 (Cth) r 19.50

Jonah & White (2011) 45 Fam LR 460; [2011] FamCA 221; 258 FLR 236
Barry & Dalrymple [2010] FamCA 1271
Moby & Schulter [2010] FLC 93-447; [2010] FamCA 748
Smyth & Pappas [2011] FamCA 434

APPLICANT:

Ms Abalos

RESPONDENT:

Mr Halder

FILE NUMBER:

MLC

400

2018

DATE DELIVERED:

13 December 2019

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Macmillan J

HEARING DATE:

19 September 2019 &
20 September 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Duckett

SOLICITOR FOR THE APPLICANT:

Kingston Lawyers

COUNSEL FOR THE RESPONDENT:

Mr O'Connor

SOLICITOR FOR THE RESPONDENT:

Hunt McCullough Kollias & Co

Orders

it is declared that

Pursuant to sections 90RD and 4AA of the Family Law Act 1975 (Cth) a de facto relationship existed between the applicant and the respondent between 8 February 2014 and 1 May 2017 who were at all relevant times resident in the State of Victoria.

it is ordered that

That all extant applications be adjourned to the Registrars Directions List at 10.30am on 5 February 2020 for the making of all orders and directions to prepare the matter for trial.
Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth), this matter reasonably required the attendance of counsel.

Costs

All questions of costs be reserved for determination on the paper in Chambers.
By 4.00 pm on 17 January 2020 the applicant file and serve any written submissions in support of any application for costs arising out of or incidental to the Amended Initiating Application filed 1 July 2019.
By 4.00 pm on 31 January 2020 the respondent file and serve any written submissions in reply to any applications for costs.
That any submissions as to costs should be limited to 10 pages.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Abalos & Halder has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor…

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 ABALOS & HALDER

Details

AGLC: ABALOS & HALDER [2019] FamCA 963
Case: [2019] FamCA 963
Decision Date: 13 December 2019

CaseChat Overview and Summary

In the matter of *Abalos & Halder*, the applicant and respondent were before Macmillan J of the Family Court of Australia. The central dispute concerned the existence of a de facto relationship between the parties.

The primary legal issue before the court was whether a de facto relationship existed between the applicant and the respondent, and if so, for what period. This determination was crucial for the court to exercise its jurisdiction under the *Family Law Act 1975* (Cth).

Macmillan J declared that a de facto relationship existed between the applicant and the respondent from 8 February 2014 to 1 May 2017, pursuant to sections 90RD and 4AA of the *Family Law Act 1975* (Cth), noting that the parties were at all relevant times resident in Victoria. The court then adjourned all extant applications to the Registrars Directions List for further orders and directions to prepare the matter for trial. The court also made orders regarding the attendance of counsel and reserved all questions of costs for determination on the papers, setting timelines for the filing of written submissions by both parties.

Orders

Orders of the court

it is declared that

Pursuant to sections 90RD and 4AA of the Family Law Act 1975 (Cth) a de facto relationship existed between the applicant and the respondent between 8 February 2014 and 1 May 2017 who were at all relevant times resident in the State of Victoria.

it is ordered that

That all extant applications be adjourned to the Registrars Directions List at 10.30am on 5 February 2020 for the making of all orders and directions to prepare the matter for trial.

Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth), this matter reasonably required the attendance of counsel.

Costs

All questions of costs be reserved for determination on the paper in Chambers.

By 4.00 pm on 17 January 2020 the applicant file and serve any written submissions in support of any application for costs arising out of or incidental to the Amended Initiating Application filed 1 July 2019.

By 4.00 pm on 31 January 2020 the respondent file and serve any written submissions in reply to any applications for costs.

That any submissions as to costs should be limited to 10 pages.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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