Capleman and Capleman - [2018] FamCA 457

FAMILY COURT OF AUSTRALIA

CAPLEMAN & CAPLEMAN

[2018] FamCA 457

FAMILY LAW – JURISDICTION – DE FACTO RELATIONSHIP – Where the applicant sought a declaration under s 90RD that she and the respondent were in a de facto relationship – Where the parties were previously married and have two children of the marriage – Where the parties commenced cohabitation some years after their divorce – Where it was established that the parties were in a de facto relationship during the time they were cohabiting.

Family Law Act 1975 (Cth) ss 4AA, 4AA(2), 90RD

Clarence v Crisp (2016) FLC 93-522
Jonah & White (2012) FLC 93-522
Lynam v D-G of Social Security (1983) 52 ALR 128
Sinclair & Whittaker (2013) FLC 93-551

APPLICANT:

Ms Capleman

RESPONDENT:

Mr Capleman

FILE NUMBER:

SYC

6473

2016

DATE DELIVERED:

28 May 2018

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Sydney

JUDGMENT OF:

Le Poer Trench J

HEARING DATE:

5 and 6 April 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Swan Lawyers

THE RESPONDENT:

Self-represented

Orders

It is declared that between early 2011 and August 2015 the applicant and the respondent were in a de facto relationship.
The matter is listed for a mention before the Docket Registrar in order to make directions which will prepare the matter for a Conciliation Conference and a hearing should that be necessary.
On or before the expiration of 21 days from the date hereof, the applicant, and the respondent should he so desire, are to provide to the Court and the other party written submissions outlining why the Court should not refer to the relevant Government official a copy of my Reasons for Judgment delivered 24 May 2018 so that an investigation may be undertaken, if deemed necessary, to ascertain whether the applicant was entitled to receive a pension, or any other government payment, between early 2011 and August 2015.
I reserve my determination on whether a copy of my Reasons for Judgment delivered 24 May 2015 should be provided to a relevant Australian Government authority for their consideration.

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6473 of 2016

Ms Capleman

Applicant

And

Mr Capleman

Respondent

REASONS FOR JUDGMENT

Introduction

Before the Court is an application filed by Ms Capleman (“the applicant”). In this hearing the Court is asked to determine if there is a de facto relationship between the applicant and Mr Capleman (“the respondent”).
The applicant sought…

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 Capleman and Capleman

Details

AGLC: Capleman and Capleman [2018] FamCA 457
Case: [2018] FamCA 457
Decision Date: 28 May 2018

CaseChat Overview and Summary

In *Capleman and Capleman*, heard before Le Poer Trench J, the applicant and respondent were parties to proceedings concerning their relationship. The central dispute revolved around whether the parties had been in a de facto relationship during a specified period.

The court was required to determine whether the applicant and respondent were in a de facto relationship between early 2011 and August 2015. Additionally, the court considered whether its reasons for judgment should be referred to a relevant government official for investigation into the applicant's entitlement to government payments during that period.

Le Poer Trench J declared that the applicant and respondent were in a de facto relationship between early 2011 and August 2015. The court then listed the matter for a mention before the Docket Registrar to make directions for a conciliation conference and potential hearing. Furthermore, the court ordered that the applicant and respondent provide written submissions on whether the court should refer its reasons for judgment to a government official for an investigation into the applicant's entitlement to a pension or other government payments during the de facto relationship period. The determination on this referral was reserved.

Orders

Orders of the court

It is declared that between early 2011 and August 2015 the applicant and the respondent were in a de facto relationship.

The matter is listed for a mention before the Docket Registrar in order to make directions which will prepare the matter for a Conciliation Conference and a hearing should that be necessary.

On or before the expiration of 21 days from the date hereof, the applicant, and the respondent should he so desire, are to provide to the Court and the other party written submissions outlining why the Court should not refer to the relevant Government official a copy of my Reasons for Judgment delivered 24 May 2018 so that an investigation may be undertaken, if deemed necessary, to ascertain whether the applicant was entitled to receive a pension, or any other government payment, between early 2011 and August 2015.

I reserve my determination on whether a copy of my Reasons for Judgment delivered 24 May 2015 should be provided to a relevant Australian Government authority for their consideration.

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

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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