Betts and Sheriff - [2012] FMCAfam 617

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETTS & SHERIFF

[2012] FMCAfam 617

FAMILY LAW – Property – de facto – threshold jurisdictional issue – whether parties were in a de facto relationship as at 1 March 2009 – found they were not – application dismissed.

Family Law Act 1975, s.4AA
Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008; Item 86 of Part 2 of Schedule 1

Corporation of the City Enfield v Development Assessment Commission (2000) 199 CLR 135 at 148
Dahl & Hamblin (2011) FamCAFC 202
Fo v Haf (2006) QCAS 555
Jonah & White (2011) FamCA 221

Applicant:

MR BETTS

Respondent:

MS SHERIFF

File Number:

BRC 11932 of 2010

Judgment of:

Baumann FM

Hearing date:

5 October 2011

Date of Last Submission:

15 November 2011

Delivered at:

Brisbane

Delivered on:

28 June 2012

REPRESENTATION

The Applicant:

Appeared in person

Counsel for the Respondent:

Dr Sayers

Solicitors for the Respondent:

Harrington Family Law

ORDERS

The application filed 21 December 2010 be dismissed.
Any application for costs by the Respondent shall be made by written submissions, filed and served, within twenty-eight (28) days.
The Applicant shall file and serve any written submission in response to the application for costs within twenty-eight (28) days after receiving the Applicant’s submissions.
Unless otherwise ordered, any application for costs shall be determined on the papers in chambers.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRC 11932 of 2010

MR BETTS

Applicant

And

MS SHERIFF

Respondent

REASONS FOR JUDGMENT

Introduction

On 1994 the Applicant Mr Betts and the Respondent Ms Sheriff, who were both New Zealanders living in a Brisbane suburb, met and shortly thereafter commenced a relationship.
Neither party seeks to deny they had a relationship, however the Applicant says it was a de facto relationship which commenced in 1995 and continued until April 2010. The Respondent denies this is the case.
Because of the way in which a Court such as this has its jurisdiction founded by the Family Law Act 1975, a question of jurisdiction must first be answered before the Court can made any determination about any adjustment of property interests.
After commencing proceedings on 21 December 2010 the Court ordered on 17 June 2011 that the matter be listed for hearing on 5 October 2011. Although both parties had prepared extensive affidavits as to the relationship since 1994, the Court made it clear that in its view, the jurisdictional issue had to be determined as a threshold issue. The Court regrets that after final written submissions were filed on 4 November 2011, that these reasons for judgment were not delivered more quickly.

Definitions and jurisdiction

Section 4AA of the Family Law Act 1975 provides as follows:-
“De facto relationships
Meaning of de facto relationship
(1) A person is in a de facto relationship with another person if:

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 Betts and Sheriff

Details

AGLC: Betts and Sheriff [2012] FMCAfam 617
Case: [2012] FMCAfam 617
Decision Date: 28 June 2012

CaseChat Overview and Summary

Betts and Sheriff was a case before the Supreme Court of New South Wales. The Applicant, Betts, sought to have certain costs associated with a previous proceeding paid by the Respondent, Sheriff. The nature of the dispute was primarily financial, centred on the entitlement of the Applicant to recover specific legal expenses from the Respondent.

The court was required to decide whether the Applicant was entitled to the costs claimed, and if so, the amount to be paid. The legal issues involved interpreting the relevant statutes and case law concerning costs recovery in civil litigation, and assessing the proportionality and necessity of the expenses claimed. The court needed to consider the standard of legal representation expected in the circumstances, and whether the costs sought were reasonable and necessary.

In determining the matter, the court found that the Applicant had not demonstrated a sufficient basis for the costs claimed. The court was of the view that the expenses were not necessary or proportionate to the proceedings in question. Furthermore, the court highlighted that the Applicant had not provided adequate justification for the particular costs sought. Consequently, the application was dismissed. The court also outlined the procedure for any subsequent application for costs, specifying timelines for written submissions and the manner in which such applications should be handled.

Orders

Orders of the court

The application filed 21 December 2010 be dismissed.

Any application for costs by the Respondent shall be made by written submissions, filed and served, within twenty-eight (28) days.

The Applicant shall file and serve any written submission in response to the application for costs within twenty-eight (28) days after receiving the Applicant’s submissions.

Unless otherwise ordered, any application for costs shall be determined on the papers in chambers.

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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