Balcomb and Daley

[2016] FCCA 1635

FEDERAL CIRCUIT COURT OF AUSTRALIA

BALCOMB & DALEY [2016] FCCA 1635

Catchwords:
FAMILY LAW – Where Applicant seeks a declaration pursuant to s.90RD of the Family Law Act 1975 that she and the Respondent were in a de-facto relationship – held parties in a de facto relationship.

Legislation:

Evidence Act 1995, s.128

Family Law Act 1975, ss.90RD, 90RF, 4AA

Jonah & White [2012] FamCAFC 200
Jonah v White [2011] FamCA 221
JPDJ v DADJ [2005] FMCAfam 86
Keene & Scofield (No.2) [2013] FCCA 1107
Sinclair & Whittaker (2013) FLC 93-551
Nelson v Nelson [1995] HCA 25
Moby & Schutter (2010) FLC 93-447

Applicant: MS BALCOMB

Respondent: MR DALEY

File Number: MLC 363 of 2015

Judgment of: Judge Jones

Hearing dates: 22, 23 & 24 February 2016

Date of Last Submission: 13 April 2016

Delivered at: Melbourne

Delivered on: 1 July 2016

REPRESENTATION

Counsel for the Applicant: Ms Sweet

Solicitors for the Applicant: Twigg Family Law

Counsel for the Respondent: Ms Smallwood

Solicitors for the Respondent: Pearsons Lawyers

ORDERS

1. That pursuant to s.90RD of the Family Law Act 1975 (Cth), the Court declares that a de facto relationship existed between the Applicant and the Respondent from late 2001 to 15 October 2013.

2. The proceedings are listed for mention at 9:30am on 6 July 2016.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 363 of 2015

MS BALCOMB

Applicant

And

MR DALEY

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application filed on 20 January 2015 by Ms Balcomb (“the Applicant”), seeking a declaration that pursuant to s.90RD(1) of the Family Law Act 1975 (Cth) (“the Act”), a de facto relationship existed between the Applicant and Mr Daley (“the Respondent”) from about late 2001 until on or about 15 October 2013, or such date as determined by the Court.

2. The Respondent seeks that the application be dismissed.

The law

Statutory provisions

1. Section 90RF of the Act provides:

   Any party to the primary proceedings may apply for a section 90RD declaration.

2. Section 90RD of the Act provides:

   (1)     If:

   (a)     an application is made for an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL; and

   (b)     a claim is made, in support of the application, that a de facto relationship existed between the applicant and another person;

   the court may, for the purposes of those proceedings (the primary proceedings), declare that a de facto relationship existed, or never existed, between those 2 persons.

   (2) A declaration under subsection (1) of the existence of a de facto relationship may also declare any or all of the following:

   (a)     the period, or periods, of the de facto relationship for the purposes of paragraph 90SB(a);

   (b)     whether there is a child of the de facto relationship;

   (c)      whether one of the parties to the de facto relationship made substantial contributions of a…