Campbell and Schmidt - [2016] FCCA 336

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAMPBELL & SCHMIDT

[2016] FCCA 336

Catchwords:
FAMILY LAW – De facto property – whether a de facto relationship existed at law – whether the Applicant’s contributions to the Respondent’s property and business, and to the welfare of the family were “substantial” pursuant to s.90SB(c) of the Family Law Act 1975 – contributions not found to be “substantial” within the meaning of the Act – declaration that no de facto relationship existed at law – application dismissed for want of jurisdiction.

Legislation:

Family Law Act 1975, ss.90SB(c), 90RD(1), 90SF(3), 44(5), 4AA, 4AA(2), 4AA(3), 4AA(4), 90RD(2), 90SM, 90SB

V & K [2005] FCWA 80

Jacob & Lawrence [2013] FamCA 188

Wall & Mitchell [2012] FamCA 114

Applicant:

MS CAMPBELL

First Respondent:

MR SCHMIDT

File Number:

MLC 6363 of 2014

Judgment of:

Judge Small

Hearing dates:

28, 29 & 30 September 2015

Date of Last Submission:

30 September 2015

Delivered at:

Melbourne

Delivered on:

19 February 2016

REPRESENTATION

Counsel for the Applicant:

Dr Kovacs

Solicitors for the Applicant:

MST Lawyers

Counsel for the Respondent:

Mr Mellas

Solicitors for the Respondent:

Forte Family Lawyers

DECLARATION

Pursuant to section 90RD(1) of the Family Law Act1975 (Cth) (“the Act”), the Court declares that a de facto relationship which would attract the jurisdiction of the Court never existed between the Applicant Ms Campbell and the Respondent Mr Schmidt.

ORDERS

The court having declared that no de facto relationship, as defined by the Act, existed between the parties, the Amended Initiating Application filed 16 September 2014 is dismissed for want of jurisdiction.
All other extant Applications are hereby dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 6363 of 2014

MS CAMPBELL

Applicant

And

MR SCHMIDT

Respondent

REASONS FOR JUDGMENT

Introduction

This is a property dispute arising out of the breakdown of the relationship between Ms Campbell (“Ms Campbell”) and Mr Schmidt (“Mr Schmidt”).
Ms Campbell and Mr Schmidt cohabited in Melbourne between September 2010 and May or July 2012 (there is a dispute about the date of separation), a period of less than two years.
Ms Campbell seeks a declaration under section 90RD of the Family Law Act1975 (Cth) (“the Act”) that a de facto relationship existed between the parties, and orders for a property settlement.
Mr Schmidt seeks that Ms Campbell's Application be dismissed on the ground that the court does not have jurisdiction to hear the matter because there was no de facto relationship in existence under the Act, or, alternatively, because Ms Campbell made her Application out of time, or, alternatively, that it would not be just and equitable for the Court to make orders for a property settlement.
The issues to be decided in this case, therefore, can be stated as follows:
A.Does the court have jurisdiction to hear this matter?
B.If the court does have jurisdiction, should…

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 Campbell and Schmidt

Details

AGLC: Campbell and Schmidt [2016] FCCA 336
Case: [2016] FCCA 336
Decision Date: 19 February 2016

CaseChat Overview and Summary

In *Campbell and Schmidt*, heard before Judge Small, the central dispute concerned the existence of a de facto relationship between the parties, which was a prerequisite for the court's jurisdiction under the relevant Act. The applicants sought declarations and orders concerning property settlement, but the respondent contested the court's authority to hear the matter, arguing that no de facto relationship, as defined by the legislation, had ever existed.

The primary legal issue before the court was to determine whether the relationship between the parties met the statutory definition of a de facto relationship. This required an examination of the criteria stipulated in the Act, which typically involve factors such as the duration of the relationship, the nature and extent of common residence, whether a sexual relationship existed, the degree of financial dependence or interdependence, the ownership, use and acquisition of property, the degree of mutual commitment to a shared life, the reputation and public acknowledgment of the relationship, and the care and support of children.

Judge Small's reasoning focused on the evidence presented regarding the nature of the parties' interactions and living arrangements. The court applied the principles established in case law concerning the interpretation of de facto relationship provisions, emphasising that the assessment is a holistic one, considering all relevant circumstances. Ultimately, the court found that the evidence did not establish that the parties had cohabited in a de facto relationship as defined by the Act.

Consequently, the court declared that no de facto relationship existed between the parties. As a result, the Amended Initiating Application filed on 16 September 2014 was dismissed for want of jurisdiction, and all other extant applications were also dismissed.

Orders

Orders of the court

The court having declared that no de facto relationship, as defined by the Act, existed between the parties, the Amended Initiating Application filed 16 September 2014 is dismissed for want of jurisdiction.

All other extant Applications are hereby dismissed.

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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