Baden & Packwood - [2021] FedCFamC2F 204

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Baden & Packwood [2021] FedCFamC2F 204

File number(s): HBC 50 of 2019

Judgment of: JUDGE TAGLIERI

Date of judgment: 19 October 2021

Catchwords: FAMILY LAW – de facto property – whether court has jurisdiction to make orders adjusting property of the parties – where parties agree they were in a de facto relationship up to June 2006 – where Applicant asserts de facto relationship ended in 2016 – where Respondent asserts that de facto relationship ended in 2006 – where State powers regarding de facto relationship referred to Commonwealth in 2009 – where parties shared common residence until 2016 – finding that parties’ de facto relationship ended in 2006 – court does not have jurisdiction – application dismissed

Legislation:
Evidence Act 1995 (Cth) s140

Family Law Act 1975 (Cth) Part VIIIAB, s4AA, s90SM

Family Law Amendment (De Facto Financial and Other Measures) Act 2008 (Cth)

Cases cited:
Crowley & Pappas [2013] FamCA 783 at 8

Jonah & White [2011] FamCA 221

Tomson & MacLaren [2021] FamCA 620

Sinclair & Whitaker (2013) FLC 93-551 at [65]

Division: Division 2 Family Law

Number of paragraphs: 95

Date of hearing: 3 & 6 September 2021

Place: Hobart

Counsel for the Applicant: In Person

Counsel for the Respondent: In Person
ORDERS

HBC 50 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR BADEN

Applicant

AND:
MR PACKWOOD

Respondent

ORDER MADE BY:

JUDGE TAGLIERI

DATE OF ORDER:

19 OCTOBER 2021

THE COURT ORDERS THAT:
1.The Application filed 22 January 2019 is dismissed for want of jurisdiction.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Baden & Packwood has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge Taglieri

On 22 January 2019, Mr Baden (“the Applicant”) made application to this Court seeking orders for the adjustment of property interests. The Respondent to the application is Mr Baden (“the Respondent”). The application sought to invoke the Court’s jurisdiction pursuant to Part VIIIAB of the Family Law Act1975 (“the Act”), which concerns financial matters relating to de facto relationships. Although not expressed as such, the application sought orders for alteration of property interests pursuant to section 90SM of the Act.
A preliminary question about jurisdiction arose in the proceedings, and on 5…

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 Baden & Packwood

Details

AGLC: Baden & Packwood [2021] FedCFamC2F 204
Case: [2021] FedCFamC2F 204
Decision Date: 19 October 2021

CaseChat Overview and Summary

The parties in this case were Mr Baden, the applicant, and Mr Packwood, the respondent. The dispute centred around the division of their property, which arose from a de facto relationship they had previously shared. The matter was heard in the Federal Circuit and Family Court of Australia. The applicants sought to have the court make orders for the division of their property, claiming that the de facto relationship had ended in 2016. The respondent argued that the relationship had ended in 2006, and the court no longer had jurisdiction over the matter.

The legal issues before the court were whether the de facto relationship had indeed ended in 2006, and if so, whether the court had jurisdiction to make orders regarding the division of property. The court considered the evidence presented by both parties, including their respective accounts of when the relationship ended and the state of their shared residence. It was also noted that the power to make de facto relationship property orders had been referred to the Commonwealth from the states in 2009. The court found that the de facto relationship had ended in 2006, and as such, it did not have jurisdiction to make orders regarding the division of the parties' property.

In reaching its decision, the court emphasised the importance of the parties' agreement that they had been in a de facto relationship up until June 2006. It found that despite the applicants' assertion that the relationship ended in 2016, the evidence demonstrated that they had shared a common residence until that year. Given that the power to make de facto relationship property orders had been referred to the Commonwealth in 2009, the court concluded that it did not have jurisdiction to make orders regarding the division of the parties' property. Consequently, the application was dismissed.

The court's final order was that the application filed on 22 January 2019 was dismissed for want of jurisdiction. This decision was subject to review to remedy any minor typographical or grammatical errors, or to record any variation to the order.

Orders

Orders of the court

HBC 50 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR BADEN

Applicant

AND:

MR PACKWOOD

Respondent

ORDER MADE BY:

JUDGE TAGLIERI

DATE OF ORDER:

19 OCTOBER 2021

THE COURT ORDERS THAT:

1. The Application filed 22 January 2019 is dismissed for want of jurisdiction.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

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File number(s):	HBC 50 of 2019
Judgment of:	JUDGE TAGLIERI
Date of judgment:	19 October 2021
Catchwords:	FAMILY LAW – de facto property – whether court has jurisdiction to make orders adjusting property of the parties – where parties agree they were in a de facto relationship up to June 2006 – where Applicant asserts de facto relationship ended in 2016 – where Respondent asserts that de facto relationship ended in 2006 – where State powers regarding de facto relationship referred to Commonwealth in 2009 – where parties shared common residence until 2016 – finding that parties’ de facto relationship ended in 2006 – court does not have jurisdiction – application dismissed
Legislation:	Evidence Act 1995 (Cth) s140 Family Law Act 1975 (Cth) Part VIIIAB, s4AA, s90SM Family Law Amendment (De Facto Financial and Other Measures) Act 2008 (Cth)
Cases cited:	Crowley & Pappas [2013] FamCA 783 at 8 Jonah & White [2011] FamCA 221 Tomson & MacLaren [2021] FamCA 620 Sinclair & Whitaker (2013) FLC 93-551 at [65]
Division:	Division 2 Family Law
Number of paragraphs:	95
Date of hearing:	3 & 6 September 2021
Place:	Hobart
Counsel for the Applicant:	In Person
Counsel for the Respondent:	In Person

HBC 50 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR BADEN Applicant
AND:	MR PACKWOOD Respondent

ORDER MADE BY:	JUDGE TAGLIERI
DATE OF ORDER:	19 OCTOBER 2021