Benedict & Peake

Case [2014] FCCA 642


FEDERAL CIRCUIT COURT OF AUSTRALIA

BENEDICT & PEAKE [2014] FCCA 642
Catchwords:
FAMILY LAW – De Facto Relationship – where the applicant seeks a declaration under s.90RD that the parties were in a de facto relationship – the Elias principle – findings of credit – prior inconsistent statements and representations – relevance of common residence to establishing relationship – relevance of birth of child to establishing relationship.

Legislation:

Family Law Act 1975, ss.4AA, 90RD, 90SM, 90SK, 90SB

Evidence Act 1995, s.140
Family Law Amendment (De Facto Financial Matters and other Measures)Act 2008
Social Security Act 1991, s.4

Norton & Locke [2013] FamCAFC 202
Benedict & Peake [2013] FCCA 332
Jordan & Jordan (1997) FLC 92-736
Elias & Elias (1977) FLC 90-267
Lee Steere (1985) FLC 91-626
Docherty (Full Court, Murray, Nygh and Barry JJ, Appeal No 98 of 1989, Sydney, 26 October 1989, unreported)
Dawes (1990) FLC 92-108
Ferraro (1993) FLC 92-335
Peters & Peters [2003] FamCA 153
IABH & HRBH [2006] FamCA 379
Lester & Lester [2007] FamCA 186
Crandall & Crandall [2009] FamCAFC 120
Tapper & Tapper [2003] FamCA 184
Sparr & Sparr [2007] FamCA 1229
Nelson v Nelson [1995] HCA 25
JPDJ and DADJ [2005] FMCAfam 86
Stierznow-Almer & Almer [2009] FamCA 577
Papas & Papas [2001] FamCA 1155
Martin & Prosser [2001] FamCA 1218
Holman v Johnson (1775) 98 ER 1120
Muckleston v Brown (1801) 31 ER 934
Wolff & Holden [2012] FMCAfam 924
Applicant: MS BENEDICT
Respondent: MR PEAKE
File Number: PAC 736 of 2011
Judgment of: Judge Harman
Hearing dates:

2 May 2013, 16, 17 December 2013

and 10 February 2014

Date of Last Submission: 10 February 2014
Delivered at: Parramatta
Delivered on: 11 April 2014

REPRESENTATION

Counsel for the Applicant: Mr Alexander
Solicitors for the Applicant: Autore & Associates
Solicitors & Barristers
Solicitors for the Respondent: Watts McCray Lawyers

ORDERS

  1. Pursuant to section 90RD I declare that the parties were not in a de facto relationship within the meaning of section 4AA of the Family Law Act 1975 at or at any date subsequent to 1 March 2009 and that thus and further I am satisfied that the Court is absent jurisdiction to entertain any application under Part VIIIAB of the Family Law Act 1975.

  2. Dismiss all outstanding Applications and Responses and remove all issues from the list of cases awaiting hearing.

  3. Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same or securely destroyed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 736 of 2011

MS BENEDICT

Applicant

And

MR PEAKE

Respondent

REASONS FOR JUDGMENT

  1. The ironic conundrum of judicial determination of proceedings such as these (a factual…

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AGLC
Benedict & Peake [2014] FCCA 642
Case
[2014] FCCA 642
Decision Date

CaseChat Overview and Summary

In *Benedict & Peake*, heard by Judge Harman, the central dispute concerned whether the parties were in a de facto relationship for the purposes of the *Family Law Act 1975* (Cth). The applicant sought to bring proceedings under Part VIIIAB of the Act, which governs financial matters in de facto relationships.

The primary legal issue before the court was to determine whether the parties had been in a de facto relationship as defined by section 4AA of the *Family Law Act 1975* at any time on or after 1 March 2009. This determination was crucial for establishing the court's jurisdiction to entertain the applications made under Part VIIIAB.

Judge Harman found that the parties were not in a de facto relationship within the meaning of section 4AA of the Act at or subsequent to 1 March 2009. Consequently, the court concluded it lacked jurisdiction to hear the applications brought under Part VIIIAB. All outstanding applications and responses were dismissed, and all issues were removed from the court's list. The exhibits and subpoenaed material were ordered to be returned or destroyed upon the expiration of the appeal period without an appeal being lodged.

Orders

Orders of the court

1.

Pursuant to section 90RD I declare that the parties were not in a de facto relationship within the meaning of section 4AA of the Family Law Act 1975 at or at any date subsequent to 1 March 2009 and that thus and further I am satisfied that the Court is absent jurisdiction to entertain any application under Part VIIIAB of the Family Law Act 1975.

2.

Dismiss all outstanding Applications and Responses and remove all issues from the list of cases awaiting hearing.

3.

Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same or securely destroyed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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