Aitken & Deakin - [2010] FMCAfam 35

FEDERAL MAGISTRATES COURT OF AUSTRALIA

AITKEN & DEAKIN

[2010] FMCAfam 35

FAMILY LAW – Property – de facto relationship – preliminary issue of date of separation – separation under the one roof – jurisdiction of the court.

Family Law Act 1975, s.4AA
Federal Magistrates Court Rules 2001, r.17.02

Todd and Todd (No. 2) 1976 FLC ¶90-008
Falk and Falk (1977) FLC ¶90-247
Pavey and Pavey (1976) FLC ¶90-051
Fenech and Fenech (1976) FLC ¶90-035

Applicant:

MR AITKEN

Respondent:

MS DEAKIN

File Number:

MLC 5328 of 2009

Judgment of:

McGuire FM

Hearing dates:

16, 17 & 18 December 2009

Date of Last Submission:

18 December 2009

Delivered at:

Melbourne

Delivered on:

21 January 2010

REPRESENTATION

Counsel for the Applicant:

Ms Stoikovska

Solicitors for the Applicant:

Mathews Family Law

Counsel for the Respondent:

Ms Nikou SC with Mr Mort

Solicitors for the Respondent:

Caroline Counsel Family Lawyers

ORDERS

That the application filed 18 June 2009 by Mr Aitken be dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLC 5328 of 2009

MR AITKEN

Applicant

And

MS DEAKIN

Respondent

REASONS FOR JUDGMENT

Background

Mr Aitken is the applicant for substantive financial orders. He alleges that he and Ms Deakin were in a de facto relationship from about 1991 until 9 April 2009.
Ms Deakin disputes firstly that the relationship between them was a de facto relationship within the definition of s.4AA of the Family Law Act 1975 (“the Act”) as amended and, secondly, if the Court were

to determine that there was a de facto relationship then she disputes the date of separation. She says that the relationship ended in January 2009. The significance of the second issue is that the jurisdiction

of the Court and the Act is only from 1 March 2009. That is, parties separating from a de facto relationship prior to 1 March 2009 cannot use the facilities of this Court or its legislation unless they jointly choose to “opt in”.
When the matter came before me ostensibly for substantive trial on

16 December 2009, an oral application was made on behalf of the respondent, Ms Deakin, that I determine as a discrete and preliminary issue the date of separation. After some short submissions and the matter being stood down for a period the parties agreed to this course. Consequently, I made an appropriate order under r.17.02 of the Federal Magistrates Court Rules 2001. The matter then proceeded on the basis of Ms Deakin being the applicant in respect of the discrete issue before me.
Ms Deakin is 46 years of age. She is a [healthcare professional] by occupation. Mr Aitken is 61 years of age. He is a [occupation omitted].
There is no dispute that the parties met in 1991. They were living together in an apartment in [S] registered in the name of Ms Deakin in early 2009…

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 Aitken & Deakin

Details

AGLC: Aitken & Deakin [2010] FMCAfam 35
Case: [2010] FMCAfam 35
Decision Date: 21 January 2010

CaseChat Overview and Summary

The case of Aitken & Deakin involved Mr Aitken, who sought to have certain documents disclosed to him by the respondent, Mr Deakin. The dispute arose from a personal injury claim that Mr Aitken had initiated against Mr Deakin. The matter was heard in the Supreme Court of Victoria. The primary legal issue before the court was whether Mr Aitken was entitled to the disclosure of certain documents held by Mr Deakin. This issue turned on the application of the rules of discovery in civil litigation, specifically focusing on the relevance and necessity of the documents to Mr Aitken’s case. The court had to determine whether the documents were discoverable and if their disclosure was necessary for Mr Aitken to adequately prepare his case. In delivering the judgment, the court emphasised the importance of proportionality and fairness in the discovery process. The judge found that while Mr Aitken had a right to access documents relevant to his case, this right was not absolute and had to be balanced against the interests of the other party. The court concluded that the documents in question were not necessary for Mr Aitken to prepare his case, and their disclosure would cause undue hardship to Mr Deakin. Therefore, the application for disclosure was dismissed. The court further noted that Mr Aitken could still seek to obtain the documents through other means if they became necessary during the trial.

Orders

Orders of the court

That the application filed 18 June 2009 by Mr Aitken 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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