Brenna & Kolby

[2023] FedCFamC2F 1523

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Brenna & Kolby [2023] FedCFamC2F 1523

File number(s):

BRC 12538 of 2021

Judgment of:

JUDGE COPE

Date of judgment:

29 November 2023 

Catchwords:

FAMILY LAW – de facto relationship – discrete issue – dispute as to duration of the de facto relationship – whether applicant is out of time to bring property settlement proceedings – declaration as to date and duration of de facto relationship – where the applicant is out of time to bring property proceedings – where the applicant has not demonstrated hardship – declaration made – leave refused – application dismissed.  

Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 44, 90RD, 90SM

Cases cited:

Althaus and Althaus (1982) FLC 91-233

Edmunds & Edmunds (2018) FLC 93-847

Fairbairn v Radecki (2022) 400 ALR 613

Gadzen & Simkin (2018) FLC 93-871

Hall and Hall (1979) FLC 90-679

Radecki & Fairbairn (2020) FLC 94-001

Sharp v Sharp (2011) 50 Fam LR 567

Whitford and Whitford (1979) FLC 90-612

Division:

Division 2 Family Law

Number of paragraphs:

131

Date of hearing:

6 April & 16 May 2023

Place:

Brisbane

Counsel for the Applicant:

Mr Moutasallem

Solicitor for the Applicant:

Millennium Lawyers

Solicitor for the Respondent:

Not to be disclosed

ORDERS

BRC 12538 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR BRENNA

Applicant

AND:

MS KOLBY

Respondent

ORDER MADE BY:	JUDGE COPE
DATE OF ORDER:	29 NOVEMBER 2023

THE COURT ORDERS THAT:

1.It is declared pursuant to s 90RD(2) of the Family Law Act 1975 (Cth) (“the Act”) that for the purposes of any order pursuant to s 90SM of the Act, Mr Brenna and Ms Kolby were in a de facto relationship between the following dates:

(a)2008; and

(b)May 2016.

2.The application by the applicant for an order granting leave pursuant to s 44(6) of the Act to commence proceedings under Part VIIIAB of the Act and in particular s 90SM of the Act is refused.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

JUDGE COPE

PART 1: INTRODUCTION

1. The proceedings were commenced on 20 September 2021 by the applicant de facto husband, Mr Brenna (“the applicant”). The de facto wife,…