ADAIR & ZAMMIT - [2015] FCCA 3396

FEDERAL CIRCUIT COURT OF AUSTRALIA

ADAIR & ZAMMIT

[2015] FCCA 3396

Catchwords:
FAMILY LAW – Jurisdiction – whether or not a de facto relationship existed after 2009.

Legislation:

Family Law Amendment (De Facto Financial Matters and Other Measures) Act2008 (Cth)

Family Law Act 1975, ss.4AA, 90SB, 90RD

Moby & Schulter (2010) FLC 93-447
Sinclair v Whittaker (2013) FLC 93-551
Gammon & Lockwood [2015] FCCA 1300
Jonah & White [2011] FamCA 221
Maroki v Ristic [2015] VSC 3
Delamarre v Asprey [2014] FamCAFC 218
Joss v Chadwell [2015] FamCA 550

Applicant:

MS ADAIR

Respondent:

MR ZAMMIT

File Number:

ADC 778 of 2014

Judgment of:

Judge Harland

Hearing dates:

11 March, 17 August & 14 October 2015

Date of Last Submission:

14 October 2015

Delivered at:

Melbourne

Delivered on:

21 December 2015

REPRESENTATION

Counsel for the Applicant:

Ms Horvat

Solicitors for the Applicant:

Donlan Lawyers

Counsel for the Respondent:

Ms Connor SC

Solicitors for the Respondent:

Steven M Clark Pty Ltd

ORDERS

That pursuant to section 90RD of the Family Law Act 1975 (Cth) the Court declares that the applicant Ms Adair and the respondent Mr Zammit were in a de facto relationship from 2006 until (omitted) 2013.

IT IS NOTED that publication of this judgment under the pseudonym Adair & Zammit is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 778 of 2014

MS ADAIR

Applicant

And

MR ZAMMIT

Respondent

REASONS FOR JUDGMENT

The issue I am asked to decide is whether or not the parties were in a de facto relationship post 2009. If the de facto relationship ended in 2009 then the applicant is well out of time. If the de facto relationship ended before 1 July 2010 then this Court does not have jurisdiction because South Australia did not refer its de facto powers such that the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth).
I note that the hearing commenced on 11 March 2015. It could not proceed on the second day as Ms Horvat had a family emergency. The hearing was then to continue on 17 August 2015. The respondent did not attend Court that day. He says he misdiarised the court date but was also unwell and could not have attended in any event. He filed some medical evidence. The matter concluded on 14 October 2015. The respondent did not oppose an order for costs in favour of the applicant for the August 2015 attendance and I made an order.
Both parties came to the relationship owning property. The applicant owned a farm and an investment property. The respondent owned the Property O property and his business in (omitted). He sets out the assets in his first affidavit.
The applicant says she and the respondent met in (omitted) 2005 and started their relationship in (omitted) 2006. She moved into the respondent’s property at Property O. The applicant says that in 2012 the respondent’s behaviour changed and she…

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 ADAIR & ZAMMIT

Details

AGLC: ADAIR & ZAMMIT [2015] FCCA 3396
Case: [2015] FCCA 3396
Decision Date: 21 December 2015

CaseChat Overview and Summary

In the matter of *Adair & Zammit*, heard before Judge Harland, the applicant Ms Adair and the respondent Mr Zammit sought declarations regarding the existence and duration of their de facto relationship. The central dispute concerned whether the parties had been in a de facto relationship for the purposes of the *Family Law Act 1975* (Cth).

The primary legal issue before the Court was to determine whether the evidence established that Ms Adair and Mr Zammit were in a de facto relationship as defined by the *Family Law Act 1975* (Cth), and if so, for what period. This required the Court to consider the criteria for establishing a de facto relationship under the Act.

Judge Harland applied the provisions of section 90RD of the *Family Law Act 1975* (Cth) to the facts presented. The Court considered the nature of the parties' cohabitation, the establishment of a domestic relationship, and the duration of their association. Based on the evidence, the Court found that the parties had indeed been in a de facto relationship.

The Court ordered that pursuant to section 90RD of the *Family Law Act 1975* (Cth), Ms Adair and Mr Zammit were declared to have been in a de facto relationship from 2006 until a date in 2013.

Orders

Orders of the court

That pursuant to section 90RD of the Family Law Act 1975 (Cth) the Court declares that the applicant Ms Adair and the respondent Mr Zammit were in a de facto relationship from 2006 until (omitted) 2013.

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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