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BANNISTER & PERGOLESI

BANNISTER & PERGOLESI

Case [2018] FamCA 888 5 November 2018

Jurisdiction

Statutory Construction

Procedural Fairness

Family Law

Statutory Interpretation

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FAMILY COURT OF AUSTRALIA

BANNISTER & PERGOLESI

[2018] FamCA 888

FAMILY LAW – DE FACTO RELATIONSHIPS – where there was a dispute about the duration of the relationship and in particular when it ended – where findings of fact made – consideration of the approach to determining what is, in effect, a jurisdictional question.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Supreme Court (General Civil Procedure) Rules 2015 (Vic)

Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
Cadman & Hallett [2014] FamCAFC 142
Clarence & Crisp [2016] FamCAFC 157
DMW v CGW [1982] HCA 73; (1982) 151 CLR 491
Dupas v The Queen [2012] VSCA 328
Hibberson v George (1989) 12 Fam LR 725; DFC 95-064
Jonah v White [2011] FamCA 221; (2011) 45 Fam LR 460
Moby & Schulter [2010] FamCA 748
Onslow & Onslow [2016] FamCAFC 7d
Re Edensor Nominees Pty Ltd; Ex parte Australian Securities and Investments Commission [2001] HCA 1; 204 CLR 559
Sinclair & Whittaker [2013] FamCAFC 129; (2013) FLC 93-551
Vaughan v Hoskovich [2010] NSWSC 706

APPLICANT:

Ms Bannister

RESPONDENT:

Mr Pergolesi

FILE NUMBER:

MLC

3959

2018

DATE DELIVERED:

5 November 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

12, 15-18 October 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Dixon SC with Dr Smith

SOLICITOR FOR THE APPLICANT:

Lander & Rogers

COUNSEL FOR THE RESPONDENT:

Mr Dickson QC with Mr Atkinson

SOLICITOR FOR THE RESPONDENT:

Coote Family Lawyers

Orders

Pursuant to s 90RD of the Family Law Act 1975 (Cth), THE COURT DECLARES that the parties were in a de facto relationship from some time in 2008 onwards until it ended in February 2018.
All of the interim or procedural orders applications, identified as B, C, D, E, F, G and J in the application filed 5 June 2018 are adjourned to the Judicial Duty List at 10:00 am on 5 December 2018.
That there otherwise be liberty to apply in respect of paragraph (2).
That paragraphs 1 and 2 of the application for substantive final relief in the application filed 5 June 2018 are adjourned to a date to be fixed for final hearing before a Judge.

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3959 of 2018

Ms Bannister

Applicant

And

Mr Pergolesi

Respondent

REASONS FOR JUDGMENT

The primary issue in this proceeding is whether…

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 BANNISTER & PERGOLESI

Details

AGLC: BANNISTER & PERGOLESI [2018] FamCA 888
Case: [2018] FamCA 888
Decision Date: 5 November 2018

CaseChat Overview and Summary

In this matter before Cronin J of the Family Court of Australia, the parties, Bannister and Pergolesi, were in dispute regarding the duration of their de facto relationship, specifically concerning the date on which the relationship concluded.

The primary legal issue before the court was to determine the precise period of the de facto relationship, which is a jurisdictional question under the *Family Law Act 1975* (Cth). This determination was crucial for the court to exercise its powers in relation to property settlement.

Cronin J made findings of fact regarding the commencement and termination of the relationship. The court applied the principles governing the assessment of de facto relationships, focusing on the evidence presented to establish the existence and duration of the relationship. The court declared that the parties were in a de facto relationship from some time in 2008 until it ended in February 2018. Further applications concerning substantive final relief were adjourned for a final hearing.

Orders

Orders of the court

Pursuant to s 90RD of the Family Law Act 1975 (Cth), THE COURT DECLARES that the parties were in a de facto relationship from some time in 2008 onwards until it ended in February 2018.

All of the interim or procedural orders applications, identified as B, C, D, E, F, G and J in the application filed 5 June 2018 are adjourned to the Judicial Duty List at 10:00 am on 5 December 2018.

That there otherwise be liberty to apply in respect of paragraph (2).

That paragraphs 1 and 2 of the application for substantive final relief in the application filed 5 June 2018 are adjourned to a date to be fixed for final hearing before a Judge.

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

Background

Background to the litigation

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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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Citations

AGLC Citation

BANNISTER & PERGOLESI [2018] FamCA 888

Most Recent Citation

Pethrick & Folmar [2022] FedCFamC2F 978

Cases citing this decision · 3 of 3 shown

Pethrick & Folmar
[2022] FedCFamC2F 978 Para 1

…Counsel at the outset of the hearing in November 2021, the Court would adopt the same approach to objections to evidence as in Bannister v Pergolesi [2018] FamCA 888 (see paragraphs [28]-[29]). There was no demurrer to this proposal. Therefore, to the extent that the respondent’s submissions also contained objecti…
MJS v AJH
[2021] QDC 287 Para 33

…] There is no legislative definition of the circumstances which establish that a de facto relationship has come to an end. [17] Bannister & Pergolesi [2018] FamCA 888. Disputed issues…
Pergolesi and Bannister
[2020] FamCAFC 161

…[2018] FamCA 888…

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Cases cited in this decision · 14 of 14 shown

Clarence & Crisp
[2016] FamCAFC 157 Para 12

…means that one of the parties may not be the legal owner but considers it be a place of common residence (as an example, see Clarence & Crisp [2016] FamCAFC 157).…
Onslow & Onslow
[2016] FamCAFC 7 Para 8

…Senior counsel for the applicant drew my attention to Onslow & Onslow [2016] FamCAFC 7 which discussed Sinclair. In a separate judgment but where Murphy J agreed with the outcome of the appeal as determined by Ainslie-Wallace and Austin JJ, his Honour made no reference to Jonah so one must conclude that he agreed w…
Cadman & Hallett
[2014] FamCAFC 142 Para 10

…In Cadman & Hallett [2014] FamCAFC 142, the Full Court considered what Rees J said as the trial judge about Full Court authorities on the issue of one party communicating to the other an intention to end the relationship. That was taken by Rees J from Price & Underwood [2008] FamCAFC 46, but an examination of what Re…
Dupas v The Queen
[2012] VSCA 328 Para 3

…In Dupas v The Queen [2012] VSCA 328, the Victorian Court of Appeal said: [265] …the ability to observe or remember facts and events can only be a reference to reliability. That becomes important here in respect of virtually all of the witnesses. Senior counsel for the respondent urged that I make adverse findings…
Jonah & White
[2011] FamCA 221 Para 5

…prove a relationship as a couple living together on a genuine domestic basis. That led the Full Court to look at what Murphy J said in Jonah v White [2011] FamCA 221; (2011) 45 Fam LR 460. The Full Court quoted his Honour saying: [92]In both written and oral submissions the appellant submitted that the facts did n…
Moby & Schulter
[2010] FamCA 748 Para 2

…In Moby & Schulter [2010] FamCA 748, Mushin J at [181] observed that even serious family violence did not inevitably bring a relationship to an end, but so too, relationships change as they progress. Change alone such as a loss of interest in communicating, lack of affection and the cessation of sexual intimacy rel…
Vaughan v Hoskovich
[2010] NSWSC 706 Para 11

…ause relationships change. I am not entirely convinced that that is the same as a determination to end the relationship. In Vaughan v Hoskovich [2010] NSWSC 706, White J when considering in a deceased estate dispute whether the plaintiff was in a de facto relationship said, rather aptly to this case as I adopt his…
Price & Underwood
[2008] FamCAFC 46 Para 10

…uthorities on the issue of one party communicating to the other an intention to end the relationship. That was taken by Rees J from Price & Underwood [2008] FamCAFC 46, but an examination of what Rees J was talking about related to a divorce and the need for an applicant to communicate the ending of the marriage. I…
Australian Securities and Investments Commission v Edensor Nominees Pty Ltd
[2001] HCA 1 Para 2

…the Parliament. It is slightly wider than that, as was said in Re Edensor Nominees Pty Ltd; Ex parte Australian Securities and Investments Commission [2001] HCA 1; 204 CLR 559; (per Gleeson CJ, Gaudron and Gummow JJ) at [3]: …Federal jurisdiction is "the authority to adjudicate derived from the Commonwealth Con…
Hibberson v George
[1989] NSWCA 100 Para 11

…The ending of a relationship and either the communication of that fact or the overt actions to confirm it, was a subject of consideration in Hibberson v George (1989) 12 Fam LR 725; DFC 95-064, where Mahoney JA said: But where one party determines not to “live together” with the other and in that sense keeps apart, the rela…
Lynam v Director-General of Social Security
[1983] FCA 274 Para 1

…f the circumstances of the relationship, each to be given the weight the court thinks appropriate. [55]In Lynam v Director-General of Social Security (1983) 52 ALR 128 at 131 (Fitzgerald J) said: Each element of a relationship draws its colour and its significance from the other elements, some of which may point at…
DMW v CGW
[1982] HCA 73 Para 13

…In DMW v CGW [1982] HCA 73; (1982) 151 CLR 491, Gibbs CJ at [503] said that “as a matter of law, [where two courts were superior courts] each court must consider and decide the preliminary question whether it has jurisdiction”…
Briginshaw v Briginshaw
[1938] HCA 34

…Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 Cadman & Hallett [2014] FamCAFC 142 Clarence & Crisp [2016] FamCAFC 157 DMW v CGW [1982] HCA 73; (1982) 151 CLR 491 Dupas v The Queen [2012] VSCA 328 Hibberson v George (1989) 12 Fam LR 725; DFC 95-064 Jonah v White [2011] FamCA 221; (2011) 45 Fam LR 460 Moby…
Sinclair & Whittaker
[2013] FamCAFC 129 Para 1

…In Sinclair & Whittaker [2013] FamCAFC 129; (2013) FLC 93-551, the Full Court in looking at the component parts of s 4AA of the Act said: [54] Thus, whether or not a de facto relationship, as defined, exists will depend upon an assessment of all of the circumstances of the relationship, each to be given the weight th…

Legislation cited in this decision · 5

Constitution of Australia (Cth)
1 mention (from Para 2)
Evidence Act 1995 (Cth)
1 mention
Family Law Act 1975 (Cth)
1 mention
Family Law Rules 2004 (Cth)
1 mention
Supreme Court (General Civil Procedure) Rules 2015 (Vic)
1 mention (from Para 3)