Cane & Kemble - [2023] FedCFamC2F 290

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cane & Kemble [2023] FedCFamC2F 290

File number(s): BRC 11658 of 2021

Judgment of: JUDGE JENKINS

Date of judgment: 17 March 2023

Catchwords: FAMILY LAW – de facto relationship – threshold issue – declaration as to the date of separation – leave out of time- hardship to applicant – prejudice to respondent – where court considers reasonable probability of success – applicant granted leave to file out of time for property division – adverse finding of credit against both parties –tampering with evidence – no order as to costs – recusal

Legislation:
Evidence Act 1995 (Cth) s 140,

Family Law Act 1975 (Cth) s 4AA, 44

Cases cited:
Althaus & Althaus [1979] FamCA 47

Fairbairn v Radecki [2022] HCA 18

Gadzen & Simkin [2018] FamCAFC 218

Hall & Hall [1979] FamCA 50

Jacenko & Jacenko [1986] FamCA 25

Radecki & Fairbairn [2020] FamCAFC 307

Sharp v Sharp [2011] FamCAFC 150

Tormsen and Tormsen [1993] FamCA 151

Whitford & Whitford [1979] FamCA 3

Division: Division 2 Family Law

Number of paragraphs: 121

Date of last submission/s: 21 October 2022

Date of hearing: 12-13 May 2022, 8-10 June 2022, 18 August 2022 & 9 September 2022

Place: Adelaide

Counsel for the Applicant: Mr Casey on 12-13 May 2022, 8-10 June 2022 and 18 August 2022; Ms Smiroldo solicitor from Stone Group Lawyers on 9 September 2022

Solicitor for the Applicant: Stone Group Lawyers

Counsel for the Respondent: Mr Bowler

Solicitor for the Respondent: Williams Barristers & Solicitors
ORDERS

BRC 11658 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR CANE

Applicant

AND:
MS KEMBLE

Respondent

order made by:

JUDGE JENKINS

DATE OF ORDER:

17 MARCH 2023

THE COURT ORDERS THAT:
1.The Court declares, pursuant to section 90RD(1) of the Family Law Act 1975 (Cth) (“the Act”), that the Applicant and the Respondent were in a de facto relationship, within the meaning of section 4AA(1) of the Act, for a period of at least two (2) years, and that this de facto relationship ended in or about September/October 2016.
2.The Applicant be granted leave to file his application for property division out of time.
3.There be no order as to costs.
4.Judge Jenkins is recused from any further hearings in this matter.
5.The matter be referred to the National Assessment Team for allocation to a Judge other than Judge Jenkins.

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,…

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 Cane & Kemble

Details

AGLC: Cane & Kemble [2023] FedCFamC2F 290
Case: [2023] FedCFamC2F 290
Decision Date

CaseChat Overview and Summary

The case of Cane & Kemble was heard by Judge Jenkins in the Federal Circuit and Family Court of Australia, Division 2. The matter was brought by Mr Cane who sought a declaration of the date of separation of his de facto relationship with Ms Kemble, and an order for property division. Mr Cane filed his application on 31 August 2021, outside of the two-year time limit, and sought leave to do so out of time. The primary issues for the Court were whether there was a de facto relationship between the parties and, if Mr Cane was out of time in bringing property proceedings, whether he should be granted leave to proceed out of time. The Court found that there was no de facto relationship between the parties after September/October 2016, and that Mr Cane had a reasonable case to be heard and a real probability of success. The Court granted Mr Cane leave to file his application out of time. The Court also found that both parties were untruthful and had tampered with evidence and accordingly recused itself from further hearings in the matter.

Orders