Allenby and Kimble - [2012] FamCA 614

FAMILY COURT OF AUSTRALIA

ALLENBY & KIMBLE

[2012] FamCA 614

FAMILY LAW – DE FACTO RELATIONSHIP – where the parties seek competing declarations pursuant to s 90RD – where the applicant seeks a declaration that he and the respondent were not in a de facto relationship – where the respondent seeks a declaration that their relationship did meet the statutory criteria for a de facto relationship – where parties were in a “relationship” for approximately 10 years – where the parties lived together for almost half of that time – where the parties did not share ownership of any property – where the parties did not pool resources – where the parties attended family events together and spent time with each other’s family – where the parties travelled together – whether the parties were in a de facto relationship – where the parties were in a de facto relationship.

Evidence Act 1995 (Cth)

Family Law Act 1975 (Cth)
Property Law Act 1974 (Qld)

Dahl & Hamblin (2011) 46 Fam LR 229
Jonah & White (2012) 45 Fam LR 460
Jones v Dunkel (1959) 101 CLR 298
Mallett v Mallett (1984) 156 CLR 605

APPLICANT:

Mr Kimble

RESPONDENT:

Ms Allenby

FILE NUMBER:

BRC

1989

2011

DATE DELIVERED:

2 August 2012

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

10 – 11 July 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Galloway

SOLICITORS FOR THE APPLICANT:

Cartledge Law

COUNSEL FOR THE RESPONDENT:

Mr Looney

SOLICITORS FOR THE RESPONDENT:

Swanston & Associates Lawyers

Orders

The Application in a Case filed by the Applicant on 16 December 2011 is dismissed.
That pursuant to s 90RD of the Family Law Act 1975 (Cth), the Court declares that:
(a)a de facto relationship existed between the applicant and the respondent; and
(b)the period, or the total of the periods, of the de facto relationship is at least two years; and
(c)the de facto relationship ended after 1 March 2009.
The matter be adjourned to a Registrar at a date and time to be fixed for the making of directions to progress the matter to final hearing and that unless otherwise ordered by the Registrar, such hearing shall be conducted by telephone.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Allenby & Kimble has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1989/2011

Mr Kimble

Applicant

And

Ms Allenby

Respondent

REASONS FOR JUDGMENT

Over a period of about ten years Mr Kimble and Ms Allenby conducted a relationship. Ms Allenby seeks a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) (“the Act”) that the relationship met the criteria for a

“de facto relationship” within the meaning of s 4AA of the Act. Mr Kimble admits a relationship, but denies it meets the statutory criteria and seeks a declaration pursuant to s 90RD that “a de…

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 Allenby and Kimble

Details

AGLC: Allenby and Kimble [2012] FamCA 614
Case: [2012] FamCA 614
Decision Date

CaseChat Overview and Summary

In *Allenby & Kimble* [2012] FamCA 614, the Family Court of Australia was asked to determine whether the parties, Mr Kimble and Ms Allenby, were in a de facto relationship. Ms Allenby sought a declaration that their relationship met the statutory criteria for a de facto relationship, while Mr Kimble sought a declaration that it did not. The proceedings were confined to the question of whether a de facto relationship existed and, if so, its duration.

The primary legal issue before the court was whether, having regard to all the circumstances of their relationship, Mr Kimble and Ms Allenby had a relationship as a couple living together on a genuine domestic basis, as defined by section 4AA(1)(c) of the *Family Law Act 1975* (Cth). This involved considering various factors, including the duration of their cohabitation, their financial arrangements, their social interactions, and their individual perceptions of the relationship. The court also had to determine if the relationship met the minimum duration requirement of two years and if it ended after 1 March 2009, to establish jurisdiction for property settlement orders.

Murphy J found that a de facto relationship did exist between the parties. Despite Mr Kimble's contentions that the relationship was one of convenience and that they lived separately for significant periods, the court found that they had shared a common residence for a substantial portion of their ten-year relationship, including from mid-2004 until September 2007 and again from October 2007 until April 2009. The court rejected Mr Kimble's evidence regarding separate bedrooms, finding that they shared the master bedroom. Furthermore, the court noted that while finances were not pooled and property was not jointly owned, the parties attended family events together, travelled together, and engaged in sexual relations throughout much of their relationship. The court also found that Ms Allenby's answers on Commonwealth benefit forms, which did not declare a de facto relationship, were given to obtain a benefit and were therefore treated with circumspection.

The court declared that a de facto relationship existed between the applicant and the respondent, that the total period of the de facto relationship was at least two years, and that the de facto relationship ended after 1 March 2009. The matter was adjourned for directions to progress the case to a final hearing.

Orders