ALTIMAS & HOUSE - [2014] FamCA 1251

FAMILY COURT OF AUSTRALIA

ALTIMAS & HOUSE

[2014] FamCA 1251

FAMILY LAW - JURISDICTION – De Facto relationship – Whether or not the parties were in a de facto relationship on or after 1 March 2009 – Whether this Court has jurisdiction to determine a property application – Where the applicant claimed the parties were in a relationship as a couple living together on a genuine domestic basis for approximately thirteen years – Where the respondent lived overseas for much of the relevant time and engaged in a relationship with another woman – Where the respondent financially supported the applicant – Where the parties engaged in limited sexual relations – Where the applicant represented to Centrelink and the ATO that she was single during the relevant period – Where the applicant failed to establish that she and the respondent were in a de facto relationship on or after 1 March 2009 – Where the Court has no jurisdiction to make a property order in the applicant’s favour – Where the applicant’s application is dismissed.

Family Law Act 1975 (Cth) – s 90SB; s 90SM(1)

Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) - s 86(1)

Fenton & Marvel (2013) FLC 93-550; [2013] FamCAFC 132

APPLICANT:

Ms Altimas

RESPONDENT:

Mr House

FILE NUMBER:

SYC

7807

2011

DATE DELIVERED:

8 August 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Johnston J

HEARING DATE:

1 October 2013 & 20 January 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Weller of Herbert Weller

COUNSEL FOR THE RESPONDENT:

Ms Christie

SOLICITOR FOR THE RESPONDENT:

Watts McCray Lawyers

Orders

That paragraphs 6, 7, 8 and 9 of the Final orders sought in the Initiating Application filed on 22 December 2011 be dismissed for want of jurisdiction.
That paragraph 2 of the orders made on 9 January 2012 be discharged.

IT IS NOTED that publication of this judgment by this Court under the pseudonym ALTIMAS & HOUSE 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 SYDNEY

FILE NUMBER: SYC 7807 of 2011

Ms Altimas

Applicant

And

Mr House

Respondent

REASONS FOR JUDGMENT

Ms Altimas (“the applicant”) seeks orders altering property interests following the breakdown of her de facto relationship with Mr House (“the respondent”). The respondent seeks orders that the property application be dismissed on the basis that this Court does not have jurisdiction to determine it.
The issue concerning jurisdiction has been listed as a threshold issue for determination.
Section 90SB of the Family Law Act 1975 (Cth) (“the Act”) provides in effect that a court may make an order in property settlement proceedings after the breakdown of a de facto relationship if it is satisfied about certain matters including that there is a child of the de facto relationship. The parties in these proceedings have a child, so this part of the jurisdictional requirement would be met.
Sub-section 90SM(1) of the Act provides in…

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 ALTIMAS & HOUSE

Details

AGLC: ALTIMAS & HOUSE [2014] FamCA 1251
Case: [2014] FamCA 1251
Decision Date: 8 August 2014

CaseChat Overview and Summary

In the matter of *Altimas & House*, heard before Johnston J, the applicant sought property orders under the *Family Law Act 1975* (Cth), alleging a de facto relationship with the respondent. The core of the dispute revolved around whether the parties had been in a de facto relationship as a couple living together on a genuine domestic basis for approximately thirteen years, as claimed by the applicant. The respondent contested this, highlighting periods of living overseas, a relationship with another woman, and limited sexual relations, while the applicant had represented herself as single to Centrelink and the ATO.

The central legal issue before the Court was whether it possessed jurisdiction to determine the property application. This required the Court to ascertain whether the parties met the definition of a de facto relationship under the *Family Law Act 1975* (Cth) on or after 1 March 2009, the relevant date for the Act's application to de facto relationships. The Court had to consider all relevant factors, including the nature of the parties' cohabitation, the financial support provided by the respondent, the extent of their sexual relations, and their representations to government bodies.

Johnston J found that the applicant had failed to establish that she and the respondent were in a de facto relationship on or after 1 March 2009. The Court concluded that, based on the evidence presented, it lacked the necessary jurisdiction to make a property order in the applicant's favour. Consequently, the Court dismissed the applicant's application for property orders.

Orders

Orders of the court

That paragraphs 6, 7, 8 and 9 of the Final orders sought in the Initiating Application filed on 22 December 2011 be dismissed for want of jurisdiction.

That paragraph 2 of the orders made on 9 January 2012 be discharged.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.