Cadman & Hallett - [2013] FamCA 819

FAMILY COURT OF AUSTRALIA

CADMAN & HALLETT

[2013] FamCA 819

FAMILY LAW – DE FACTO RELATIONSHIP – Declaration sought pursuant to s 90RD of the Family Law Act 1975 (Cth) that a de facto relationship existed for the purposes of property settlement proceedings – Whether or not the parties continued to live in a de facto relationship for all or part of the period from January 2000 until October 2010 – Where one of the issues to be determined was when the relationship came to an end or “broke down” – Where in the circumstances of the case, it was not clear when one party formed the intention to end the relationship – Where there was no evidence that one party had either formed the intention or acted upon it before 1 March 2009 which is the relevant date for the accrual of jurisdiction – The Court found and declared that a de facto relationship existed between the parties.

Family Law Act 1975 (Cth)

Evidence Act 1995 (Cth)

Dahl & Hamblin (2011) FLC 93-480
Falk & Falk (1977) FLC 90-247
Hibberson v George (1989) 12 Fam LR 725
Howland v Ellis (2001) 28 Fam LR 656
In the marriage of S and T Batty (1986) 10 Fam LR 688
Pavey & Pavey (1976) FLC 90-051
Price & Underwood [2008] FamCAFC 46
S v B (No. 2) (2004) 32 Fam LR 429
Todd & Todd (No 2) (1976) FLC 90-008

APPLICANT:

Mr Cadman

RESPONDENT:

Mr Hallett

FILE NUMBER:

SYC

4542

2012

DATE DELIVERED:

18 October 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

16 and 17 September 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Johnston

SOLICITOR FOR THE APPLICANT:

Harris & Company Solicitors and Notaries

COUNSEL FOR THE RESPONDENT:

Ms Obrart

SOLICITOR FOR THE RESPONDENT:

G & D Lawyers

Orders

IT IS ORDERED

That the application for summary dismissal filed on 19 December 2012 is dismissed.
That pursuant to s 90RD of the Family Law Act1975 (Cth) it is declared that, as at 1 March 2009, a de facto relationship existed between Mr Hallett and Mr Cadman.
That the matter be listed for directions on 13 December 2013 at 10 am in relation to the application for adjustment of property interests before the Honourable Justice Rees.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4542 of 2012

Mr Cadman

Applicant

And

Mr Hallett

Respondent

REASONS FOR JUDGMENT

The substantive proceedings before the Court arise out of a de facto relationship between Mr Hallett who is the applicant and is 47 years old and Mr Cadman who is the respondent and is currently 70 years old. Mr Cadman, by his Case Guardian Ms C, who is his sister, has brought an application for summary dismissal of the application…

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 Cadman & Hallett

Details

AGLC: Cadman & Hallett [2013] FamCA 819
Case: [2013] FamCA 819
Decision Date: 18 October 2013

CaseChat Overview and Summary

In the matter of *Cadman & Hallett*, heard before Rees J, the dispute concerned the existence of a de facto relationship between Mr Cadman and Mr Hallett. The application before the court sought, among other things, a declaration that a de facto relationship existed between the parties as at 1 March 2009, and the dismissal of an application for summary dismissal filed by one of the parties.

The primary legal issue before the court was whether, pursuant to section 90RD of the *Family Law Act 1975* (Cth), a de facto relationship existed between Mr Cadman and Mr Hallett as at 1 March 2009. This determination was crucial for the subsequent consideration of an application for adjustment of property interests.

Rees J considered the evidence presented and, applying the principles relevant to establishing a de facto relationship under the *Family Law Act*, declared that a de facto relationship did exist between Mr Cadman and Mr Hallett as at 1 March 2009. The court also dismissed the application for summary dismissal. The matter was subsequently listed for directions regarding the property adjustment proceedings.

Orders

Orders of the court

IT IS ORDERED

That the application for summary dismissal filed on 19 December 2012 is dismissed.

That pursuant to s 90RD of the Family Law Act 1975 (Cth) it is declared that, as at 1 March 2009, a de facto relationship existed between Mr Hallett and Mr Cadman.

That the matter be listed for directions on 13 December 2013 at 10 am in relation to the application for adjustment of property interests before the Honourable Justice Rees.

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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