ABROON & TALIZ - [2016] FamCA 1031

FAMILY COURT OF AUSTRALIA

ABROON & TALIZ

[2016] FamCA 1031

FAMILY LAW – DE FACTO - application for a declaration of a de facto relationship - where the relationship was asserted to have sustained between 2000 and 2014 - where the respondent chose not to give evidence in chief about the nature and quality of the relationship between herself and the respondent in the period prior to 2009 - declaration that a de facto relationship existed between the parties.

FAMILY LAW – PRACTICE & PROCEDURE - referral of papers to the Australian Federal Police for consideration as to the commission of an offence - where a party admitted to having made false statements to Centrelink – where parties in receipt of a benefit while in a de facto relationship – where parties claimed to be single at the relevant time

Family Law Act 1975 (Cth)

Dahl & Hamblin (2011) FLC 93-480
Hayes v Marquis [2008] NSWCA 10
Jonah & White (2012) FLC 93-522
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Klintock & Ferder (2010) 43 Fam LR 135 (2010) FamCA162

APPLICANT:

Mr Abroon

RESPONDENT:

Ms Taliz

FILE NUMBER:

PAC

585

2015

DATE DELIVERED:

2 December 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Parramatta

JUDGMENT OF:

Carew J

HEARING DATE:

21 - 24 November 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Shearman

SOLICITOR FOR THE APPLICANT:

Warren F Ball & Co

COUNSEL FOR THE RESPONDENT:

Ms Friedlander (direct brief)

Orders

Pursuant to section 90RD of the Family Law Act 1975 (Cth) it is declared that the applicant and respondent lived together in a de facto relationship during the following periods:
(a)From in or about April 2000 until in or about August 2005 (save for the period 4 to 6 February 2002); and
(b)From in or about August 2006 until in or about 4 January 2009 (save for the period from late 2006 to January 2007); and
(c)From in or about May 2009 until in or about January 2014 (save for the period late January 2011 to early February 2011).
It is further declared that the parties were ordinarily resident in a participating jurisdiction when the relationship broke down.
All outstanding interim applications are dismissed.
The matter shall be listed before a Registrar for trial directions.
It is directed that a Registrar of this Honourable Court send the following documents to the Chambers of the Chief Justice of the Family Court of Australia for consideration as to whether this matter should be referred to the Australian Federal Police for investigation of the commission of a possible offence committed by Mr Abroon and/or Ms Taliz in relation to the receipt by them of any pension, allowance or benefit at a time when they were living together in a de facto relationship but claimed to be single:
(a) This Order dated 2 December 2016;
(b) The Reasons for Judgment dated 2 December 2016;
(c)Paragraphs 139 to 142 (inclusive) of the affidavit sworn by Mr Abroon on 16 October 2016…

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 ABROON & TALIZ

Details

AGLC: ABROON & TALIZ [2016] FamCA 1031
Case: [2016] FamCA 1031
Decision Date: 2 December 2016

CaseChat Overview and Summary

In the matter of ABROON & TALIZ, the applicant sought a declaration that a de facto relationship existed with the respondent between 2000 and 2014. The respondent did not provide evidence regarding the nature of the relationship prior to 2009. The court was asked to determine whether a de facto relationship existed between the parties for the purposes of family law proceedings and, if so, the periods during which it subsisted.

The court was required to consider the provisions of sections 90RD and 90SK of the *Family Law Act 1975* (Cth). Specifically, the court had to determine its jurisdiction to make a declaration regarding a de facto relationship where the breakdown occurred prior to 1 March 2009, and whether the parties were ordinarily resident in a participating jurisdiction at the time of the application or when the relationship broke down. The court also had to consider the impact of the respondent’s failure to give evidence on the determination of the relationship's existence.

Applying the relevant sections of the *Family Law Act 1975*, the court found that it had jurisdiction to make the declarations sought. The court declared that a de facto relationship existed between the applicant and respondent during specific periods between April 2000 and January 2014, with noted exceptions. The court further declared that the parties were ordinarily resident in a participating jurisdiction when the relationship broke down. In addition to these declarations, the court dismissed all outstanding interim applications and directed that the matter be listed for trial directions. The court also ordered that certain documents be sent to the Chief Justice of the Family Court of Australia for consideration regarding potential offences committed by the parties in relation to receiving benefits while claiming to be single during the de facto relationship.

Orders

Orders of the court

Pursuant to section 90RD of the Family Law Act 1975 (Cth) it is declared that the applicant and respondent lived together in a de facto relationship during the following periods:

(a) From in or about April 2000 until in or about August 2005 (save for the period 4 to 6 February 2002); and

(b) From in or about August 2006 until in or about 4 January 2009 (save for the period from late 2006 to January 2007); and

(c) From in or about May 2009 until in or about January 2014 (save for the period late January 2011 to early February 2011).

It is further declared that the parties were ordinarily resident in a participating jurisdiction when the relationship broke down.

All outstanding interim applications are dismissed.

The matter shall be listed before a Registrar for trial directions.

It is directed that a Registrar of this Honourable Court send the following documents to the Chambers of the Chief Justice of the Family Court of Australia for consideration as to whether this matter should be referred to the Australian Federal Police for investigation of the commission of a possible offence committed by Mr Abroon and/or Ms Taliz in relation to the receipt by them of any pension, allowance or benefit at a time when they were living together in a de facto relationship but claimed to be single:

(a) This Order dated 2 December 2016;

(b) The Reasons for Judgment dated 2 December 2016;

(c) Paragraphs 139 to 142 (inclusive) of the affidavit sworn by Mr Abroon on 16 October 2016 and filed in this Honourable Court on 20 October 2016;

(d) Pages 190 to 214 of the affidavit sworn by Mr Abroon on 16 October 2016 and filed in this Honourable Court on 20 October 2016;

(e) Exhibit 6;

(f) Transcript of evidence given by Mr Abroon on 22 November 2016 between 9:07am and 9:12am and 11:18am and 11:19am; and

(g) Transcript of submissions by counsel for Mr Abroon on 24 November 2016 between 12:02pm and 12:04pm.

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

Section 90RD relevantly provides:Declarations about existence of de facto relationships (1)If: (a)an application is made for an order under … 90SM, … and (b)a claim is made, in support of the application, that a de facto relationship existed between the applicant and another person; the court may, for the purposes of those proceedings (the primary proceedings), declare that a de facto relationship existed, or never existed, between those 2 persons. (2)A declaration under subsection (1) of the existence of a de facto relationship may also declare any or all of the following: (a)the period, or periods, of the de facto relationship for the purposes of paragraph 90SB(a); (b)…;(c)…;(d)when the de facto relationship ended; (e)where each of the parties to the de facto relationship was ordinarily resident during the de facto relationship. As the jurisdiction of the Court to make a declaration is only for the purposes of the primary proceedings, (in this case being the s 90SM proceedings), the Court does not have jurisdiction to make a declaration (other than that a de facto relationship never existed) if final separation occurred prior to 1 March 2009.[8] It does seem curious that this provision appears to indicate that the Court can make a declaration that a de facto relationship never existed when the jurisdictional basis for granting declaratory relief is absent. It might be thought sufficient to simply dismiss the application for a declaration which is what the respondent seeks in this case. [8] For a discussion of the jurisdictional limitations where the court’s accrued jurisdiction is sought to be relied upon see Klintock & Ferder (2010) 43 Fam LR 135; (2010) FamCA162 per Cronin J Section 90SK relevantly provides: (1)A court may make a declaration under … section 90SM, in relation to a de facto relationship only if the court is satisfied: (a)that either or both of parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the application for the declaration or order was made (the application time ); and (b)that either: (i)both parties to the de facto relationship were ordinarily resident during at least a third of the de facto relationship; or (ii)the applicant for the declaration … made substantial contributions in relation to the de facto relationship, of a kind mentioned in paragraph 90SM(4)(a), (b) or (c); in one or more States or Territories that are participating jurisdictions at the application time; or that the alternative condition in subsection (1A) is met. (1A) The alternative condition is that the parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the relationship broke down. (6)For the purposes of paragraph (1)(b), a State need not have been a participating jurisdiction during the de facto relationship. … The applicant relied upon the following material:a)Amended Initiating Application filed 20 October 2016;b)Affidavit of Mr Abroon filed 20 October 2016;c)Affidavit of Mr P filed 20 October 2016;d)Affidavit of Mr Q filed 28 October 2016; ande)Case outline filed 16 November 2016.