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.
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.
Dismiss all outstanding Applications and Responses and remove all issues from the list of cases awaiting hearing.
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
The ironic conundrum of judicial determination of proceedings such as these (a factual…
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.
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Details
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.