BENNETT & CRICK - [2017] FCCA 329

FEDERAL CIRCUIT COURT OF AUSTRALIA

BENNETT & CRICK

[2017] FCCA 329

Catchwords:
FAMILY LAW – Application for declaration pursuant to s.90RD of the Family Law Act 1975 (Cth) – whether the Court has jurisdiction to hear the application under 90SM of the Family Law Act 1975 (Cth) – whether the parties were in a de facto relationship after 1 March 2009 – whether in all the circumstances the parties lived together as a couple in a genuine domestic relationship – whether the de facto relationship finally broke down before 1 March, 2009 – whether one party formed the intention to end the relationship and acted upon it before 1 March 2009 – whether the party forming the intention to end the relationship communicated that intention to the other party.

Legislation:

Family Law Act 1975, Part VIIIAB, ss.4AA, 4AA(1)(a), 4AA(1)(b), 4AA(1)(c), 4AA(2), 39B, 90RD, 90SM, 90SB(b), 90RB

Evidence Act 1995, s.140(1)

Cases cited:

Norton v Locke [2013] FamCAFC 202
Ricci v Jones (2011) FamCAFC 222
S v B (No.2) (2004) 32 Fam LR 429
Fenton & Marvel [2013] FamCAFC 132
Hayes v Marquis [2008] NSWCA 10
Jonah & White [2011] FamCA 221; 45 Fam LR 460
Cadman & Hallett (2014) FLC 93-603
Aitken v Deakin [2010] FMCAfam 35
Todd & Todd (No.2) (1976) 1 Fam LR 11186; 25 FLR 260; FLC 90-008
Falk & Falk (1977) 3 Fam LR 11238; FLC 90-247
Pavey and Pavey (1977) 3 Fam LR 11238; FLC 90-247
Lynam v DG of Social Security (1983) 52 ALR 128

Applicant:

MS BENNETT

Respondent:

MR CRICK

File Number:

PAC 2610 of 2016

Judgment of:

Judge Tonkin

Hearing date:

1 February 2017

Date of Last Submission:

1 February 2017

Delivered at:

Canberra

Delivered on:

28 February 2017

REPRESENTATION

Counsel for the Applicant:

Ms Snelling

Solicitors for the Applicant:

Valenti & Valenti

Counsel for the Respondent:

Mr Williams

Solicitors for the Respondent:

Broun Abrahams Burreket

ORDERS

Pursuant to section 90RD of the Family Law Act 1975 (Cth) it is declared that a de facto relationship existed between the parties commencing late 2001 and continuing until 9^th June 2014.
The matter is listed for directions on 27 March 2017 at 9.30am in relation to the application for adjustment of property interests before Judge Tonkin.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 2610 of 2016

MS BENNETT

Applicant

And

MR CRICK

Respondent

REASONS FOR JUDGMENT

Introduction

The applicant Ms Bennett was born in 1962 and was 54 years of age at the time of the trial. The respondent Mr Crick was born in 1961 and was 55 years of age. The parties commenced a relationship sometime in 2000. At that time the applicant was the sole proprietor of a property at B Street, Suburb L which she purchased in 1991 and the respondent was the sole proprietor of a property…

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 BENNETT & CRICK

Details

AGLC: BENNETT & CRICK [2017] FCCA 329
Case: [2017] FCCA 329
Decision Date: 28 February 2017

CaseChat Overview and Summary

In the matter of *Bennett & Crick*, heard by Judge Tonkin, the dispute concerned the existence and duration of a de facto relationship between the parties. The applicant sought declarations regarding the commencement and termination of this relationship, which would form the basis for subsequent property adjustment proceedings.

The primary legal issue before the court was to determine whether a de facto relationship existed between the parties and, if so, to establish the precise period during which it subsisted. This determination was crucial for the court to exercise its jurisdiction under section 90RD of the *Family Law Act 1975* (Cth) to make orders for the adjustment of property interests.

Judge Tonkin found that a de facto relationship did exist between the parties, commencing in late 2001 and concluding on 9 June 2014. This declaration was made pursuant to section 90RD of the *Family Law Act 1975* (Cth). The matter was subsequently listed for directions on 27 March 2017 at 9:30 am to address the application for adjustment of property interests.

Orders

Orders of the court

Pursuant to section 90RD of the Family Law Act 1975 (Cth) it is declared that a de facto relationship existed between the parties commencing late 2001 and continuing until 9th June 2014.

The matter is listed for directions on 27 March 2017 at 9.30am in relation to the application for adjustment of property interests before Judge Tonkin.

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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