ADESSO & PEYTON - [2019] FCCA 343

FEDERAL CIRCUIT COURT OF AUSTRALIA

ADESSO & PEYTON

[2019] FCCA 343

Catchwords:
FAMILY LAW – Preliminary jurisdictional issue in respect of de facto relationship of less than two years duration – consideration of “substantial contributions” and “severe injustice”.

Legislation:

Family Law Act 1975 (Cth), ss.4AA, 44 (3), (3A), 90SM, (4)

Evidence Act 1995 (Cth)

Cases cited:

Re L (Litigants in Person Guidelines) (2001) FLC 93-072

Ricci v Jones [2011] FamCAFC 222

Jonah & White [2011] FamCA 221

Whitford v Whitford (1979) FLC 90-612

V & K [2005] FCWA 80

Applicant:

MS ADESSO

Respondent:

MR PAYTON

File Number:

LNC 381 of 2018

Judgment of:

Judge McGuire

Hearing date:

30 January 2019

Date of Last Submission:

30 January 2019

Delivered at:

Launceston

Delivered on:

28 February 2019

REPRESENTATION

Applicant appeared in person:

Counsel for the Respondent

Mr M Doyle

Solicitors for the Respondent:

Clarke & Gee

ORDERS

That the Application filed 25 June 2018 be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT LAUNCESTON

LNC 381 of 2018

MS ADESSO

Applicant

And

MR PAYTON

Respondent

REASONS FOR JUDGMENT

Applications

Ms Adesso is the applicant in substantive proceedings seeking final orders as to property settlement. That application was filed 25 June 2018. There is, however, a preliminary issue as to jurisdiction in respect of the need for a declaration that there was a de facto relationship pursuant to the definition in the Family Law Act so as to permit Ms Adesso to prosecute her application for property orders.
The respondent, Mr Payton, disputes that there was a de facto relationship within the terms of the Family Law Act.
Ms Adesso represents herself before me and did so with some skill and with proper courtesy to the Court and to Mr Payton at all times. She informs me that she is in the early stages of a law degree but it was clear that the complexities of this issue, the legislation, and the Evidence Act at times tested Ms Adesso. Given her status as being unrepresented, the Court took some time to explain the procedure to Ms Adesso and the nature of the application[1].
[1] Re L (Litigants in Person Guidelines) (2001) FLC 93-072
Mr Payton was represented by a solicitor-advocate.

The Issue

At the commencement of the evidence, it was my understanding from the materials on the file and clearly that of the respondent's Counsel that Ms Adesso was arguing a de facto relationship based primarily on that relationship having endured at least two years. To her credit, however, and during her cross-examination, Ms Adesso candidly conceded that the de facto relationship within the parameters of the Act was not of 2 years duration but that she was basing her claim for a declaration on what might be called 'substantial contributions and serious injustice' should the declaration not be made. Armed with this concession, Mr Payton continued to…

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 ADESSO & PEYTON

Details

AGLC: Adesso and Peyton [2019] FCCA 343
Case: [2019] FCCA 343
Decision Date: 28 February 2019

CaseChat Overview and Summary

In the matter of *ADESSO & PEYTON*, heard before Judge McGuire, the dispute concerned a preliminary jurisdictional issue in family law proceedings. The applicant sought to bring proceedings under the *Family Law Act 1975* (Cth) concerning a de facto relationship that lasted less than two years. The central question before the court was whether the jurisdictional threshold, requiring either substantial contributions or severe injustice, had been met to allow the proceedings to continue.

The court was required to determine whether the applicant had established that there were substantial contributions made to the relationship, or that failure to make orders would result in severe injustice. These are the two alternative conditions that must be satisfied for the court to have jurisdiction over a de facto relationship of less than two years duration under section 44(5) of the *Family Law Act 1975* (Cth).

Judge McGuire considered the evidence presented in relation to the nature and extent of the contributions made by the parties during the de facto relationship. The court applied the principles established in case law regarding what constitutes "substantial contributions" and "severe injustice" in the context of the *Family Law Act*. After careful consideration of the facts and the relevant legal principles, the court found that neither of the jurisdictional requirements had been satisfied.

Consequently, the court ordered that the Application filed on 25 June 2018 be dismissed.

Orders

Orders of the court

That the Application filed 25 June 2018 be dismissed.

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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