Bahan & Pinder - [2021] FedCFamC2F 347

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bahan & Pinder [2021] FedCFamC2F 347

File number(s): HBC 580 of 2020

Judgment of: JUDGE TAGLIERI

Date of judgment: 11 November 2021

Catchwords: FAMILY LAW – de facto property – where applicant seeks orders adjusting property interests – respondent seeks dismissal of application and declaration that parties never in a de facto relationship – threshold hearing to determine jurisdiction – parties in a relationship as a couple living together on a genuine domestic basis – de facto relationship established – declaration made pursuant to s 90RD

Legislation:
Evidence Act 1995 (Cth), s 140

Family Law Act 1975, Part VIIIAB, ss 4AA, 90RD

Cases cited:
Baden & Packwood [2021] FedCFamC2F 204

Carlson & Fluvium [2012] FamCA 32

Crowley & Pappas [2013] FamCA 783

Dahl & Hamblin [2011] FamCAFC 202

Jonah & White [2011] FamCA 221

Jones & Dunkel (1959) 101 CLR 298

Tomson & MacLaren [2021] FamCA 620

Sinclair & Whitaker (2013) FLC 93-551

Division: Division 2 Family Law

Number of paragraphs: 89

Date of hearing: 22 & 23 September 2021

Place: Hobart

Counsel for the Applicant: Mr J Saric

Counsel for the Respondent: Mr M Trezise
ORDERS

HBC 580 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS BAHAN

Applicant

AND:
MR PINDER

Respondent

ORDER MADE BY:

JUDGE TAGLIERI

DATE OF ORDER:

11 NOVEMBER 2021

THE COURT ORDERS THAT:
1.Pursuant to section 90RD(2) there is a declaration that the parties were in a de facto relationship between 2014 and 2019 and for a period of at least 4 years and 6 months.

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 Bahan & Pinder has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge Taglieri

On 1 July 2020, Ms Bahan (“the Applicant”) filed an Initiating Application seeking final orders for adjustment of property interests with Mr Pinder (“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.
On 10 August 2020, the Respondent filed a Response to Initiating Application seeking a declaration that the Applicant and Respondent were never in a de facto relationship and, consequently, a dismissal of the Initiating Application.
Prior…

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 Bahan & Pinder

Details

AGLC: Bahan & Pinder [2021] FedCFamC2F 347
Case: [2021] FedCFamC2F 347
Decision Date: 11 November 2021

CaseChat Overview and Summary

In this matter, Ms Bahan, the applicant, filed an application seeking adjustments to the property interests between herself and Mr Pinder, the respondent. The Federal Circuit and Family Court of Australia (Division 2) conducted a threshold hearing to determine if it had jurisdiction over the matter, specifically whether the parties had been in a de facto relationship as defined under the Family Law Act 1975 (Cth). The respondent not only opposed the application but also sought dismissal and a declaration that the parties never had a de facto relationship.

The court had to determine whether the applicant and respondent had a de facto relationship, and if so, the duration of such relationship. The applicant argued that the parties had been in a relationship as a couple living together on a genuine domestic basis, while the respondent denied the existence of such a relationship. The court examined the nature of the relationship, the extent of their cohabitation, and the duration of the relationship. The court had to establish if the relationship met the criteria set out in the Family Law Act, specifically that the parties had to have been in a relationship as a couple living together on a genuine domestic basis for a continuous period of at least three years.

The court found that the parties were in a de facto relationship from 2014 to 2019, which lasted for at least four years and six months. The court observed the couple's interactions, their shared living arrangements, and their financial interdependence, which supported the finding of a genuine domestic relationship. Consequently, the court issued a declaration under section 90RD(2) of the Family Law Act, confirming that the parties were in a de facto relationship between 2014 and 2019. The court's decision affirmed its jurisdiction to hear the matter regarding property interests.

Orders

Orders of the court

HBC 580 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS BAHAN

Applicant

AND:

MR PINDER

Respondent

ORDER MADE BY:

JUDGE TAGLIERI

DATE OF ORDER:

11 NOVEMBER 2021

THE COURT ORDERS THAT:

1. Pursuant to section 90RD(2) there is a declaration that the parties were in a de facto relationship between 2014 and 2019 and for a period of at least 4 years and 6 months.

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

Full text does not contain this section.

File number(s):	HBC 580 of 2020
Judgment of:	JUDGE TAGLIERI
Date of judgment:	11 November 2021
Catchwords:	FAMILY LAW – de facto property – where applicant seeks orders adjusting property interests – respondent seeks dismissal of application and declaration that parties never in a de facto relationship – threshold hearing to determine jurisdiction – parties in a relationship as a couple living together on a genuine domestic basis – de facto relationship established – declaration made pursuant to s 90RD
Legislation:	Evidence Act 1995 (Cth), s 140 Family Law Act 1975, Part VIIIAB, ss 4AA, 90RD
Cases cited:	Baden & Packwood [2021] FedCFamC2F 204 Carlson & Fluvium [2012] FamCA 32 Crowley & Pappas [2013] FamCA 783 Dahl & Hamblin [2011] FamCAFC 202 Jonah & White [2011] FamCA 221 Jones & Dunkel (1959) 101 CLR 298 Tomson & MacLaren [2021] FamCA 620 Sinclair & Whitaker (2013) FLC 93-551
Division:	Division 2 Family Law
Number of paragraphs:	89
Date of hearing:	22 & 23 September 2021
Place:	Hobart
Counsel for the Applicant:	Mr J Saric
Counsel for the Respondent:	Mr M Trezise

HBC 580 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS BAHAN Applicant
AND:	MR PINDER Respondent

ORDER MADE BY:	JUDGE TAGLIERI
DATE OF ORDER:	11 NOVEMBER 2021