ALLBROOKS & DECARLI - [2020] FCCA 2594

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALLBROOKS & DECARLI

[2020] FCCA 2594

Catchwords:
FAMILY LAW – Property – de facto relationship – dispute as to period of relationship – dispute as to whether just and equitable to alter property interests of parties – Held de facto relationship existed for 6 years and 7 months – Held not just and equitable to alter property interests of parties – application dismissed.

Legislation:

Family Law Act 1975 (Cth), ss.79, 90SF, 90RD, 90SM, Pt VIIIAB

Cases cited:

Babray & Babray [2019] FCCA 3514
Bevan & Bevan [2013] FamCAFC 116
Chancellor & McCoy [2016] FamCACF 256
Fielding and Nichol [2014] FCWA 77
Stanford v Stanford (2012) 293 ALR 70

Applicant:

MS ALLBROOKS

Respondent:

MR DECARLI

File Number:

LEC 447 of 2018

Judgment of:

Judge L. Turner

Hearing dates:

11,12 November 2019, 28,29 January 2020 & 14 April 2020

Date of Last Submission:

14 April 2020

Delivered at:

Brisbane

Delivered on:

17 September 2020

REPRESENTATION

Counsel for the Applicant:

Mr Page

Solicitors for the Applicant:

David Hunter Solicitor

Counsel for the Respondent:

Ms McDiarmid

Solicitors for the Respondent:

Beek & Gallagher Legal

FINAL ORDERS

That it is declared, pursuant to section 90RD Family Law Act 1975, for the purposes of any order pursuant to section 90SM Family Law Act 1975, the Applicant and the Respondent were in a de facto relationship for the following periods:
(a)2010 to October 2014.
(b)2014 to April 2015.
(c)2015 to April 2017.
That the application to alter the interests of parties to a de facto relationship filed by the applicant Ms Allbrooks on 26 July 2018 is hereby dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

LEC 447 of 2018

MS ALLBROOKS

Applicant

And

MR DECARLI

Respondent

REASONS FOR JUDGMENT

Introduction

The parties are in dispute as whether the interests of the parties to a de facto relationship are to be altered.

Proposals

The applicant, Ms Allbrooks (Ms Allbrooks) seeks orders whereby:
a)Mr Decarli pays Ms Allbrooks $425,000.
b)Otherwise each party keep to the exclusion of the other the property in their name.
The respondent Mr Decarli (Mr Decarli) seeks orders whereby:
a)Ms Allbrooks’s application be dismissed.

Issues

The issues for determination are:
a)The period of the de facto relationship.
b)Whether it is just and equitable for there to be an alteration of the parties’ interest to a de facto relationship in the property.
c)If findings are made that it is just and equitable for parties’ interest to be altered, then what alteration is to take place.

Evidence

In considering these issue regard has been had to:
a)The material as marked on the court file with a red tick.
b)The exhibits.
c)The transcripts.
d)The written and oral submissions.
e)Part VIIIAB Family Law Act 1975.
f)Relevant authorities.
The parties are legally represented.
The valuers were not required for cross-examination.
For Ms Allbrooks the following…

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 ALLBROOKS & DECARLI

Details

AGLC: ALLBROOKS & DECARLI [2020] FCCA 2594
Case: [2020] FCCA 2594
Decision Date: 17 September 2020

CaseChat Overview and Summary

In *Allbrooks & Decarli*, the Family Court of Australia was asked to determine a dispute concerning the property interests of two individuals who had been in a de facto relationship. The primary disagreements between the parties related to the duration of their relationship and whether it would be just and equitable to alter their respective property interests.

The court was required to make two key determinations. Firstly, it needed to ascertain the precise period for which the de facto relationship had subsisted. Secondly, and crucially, the court had to consider whether, having regard to all the circumstances, it was just and equitable to make an order altering the property interests of the parties.

Her Honour L. Turner J found that a de facto relationship had existed between the parties for a period of six years and seven months. Applying the principles governing property adjustment in de facto relationships, the court concluded that it was not just and equitable to alter the property interests of the parties. Consequently, the application brought by one of the parties was dismissed.

Orders