Carras & Arvanitis

Case [2021] FCCA 1972

FEDERAL CIRCUIT COURT OF AUSTRALIA

Carras & Arvanitis [2021] FCCA 1972

File number(s): MLC 7795 of 2019
Judgment of: JUDGE HARLAND
Date of judgment: 24 August 2021
Catchwords: FAMILY LAW – threshold issue – whether a de facto relationship existed – consideration of the nature of the relationship – consideration as to credibility of the parties
Legislation:

Evidence Act 1995 (Cth), s 128

Family Law Act 1975 (Cth), ss 4AA(2), (5), 90RD

Family Law Amendment (De Facto Financial Matters and Other Measures) Act2008 (Cth)

Federal Circuit Court Rules 2001, r 13.10
Cases cited:

Bigg v Suzi (1998) FLC 92-799

Crick and Bennett [2018] FamCAFC 68

Delamarre and Asprey [2014] FamCAFC 218

Gitane v Velacruz [2007] FamCA 183

Jonah & White [2011] FamCA 221

Lindon v Commonwealth (No 2) [1996] HCA 14

Moby & Schulter (2010) FLC 93-447

Sinclair and Whittaker [2013] FamCAFC 129
Number of paragraphs: 218
Date of hearing: 10, 11 & 17 May 2021, 11 June 2021
Place: Melbourne
Counsel for the Applicant: Mr Laidlaw
Solicitor for the Applicant: Farrar Gesini Dunn
Solicitor for the Respondent: Ms Arvanitis appeared in person

ORDERS

MLC 7795 of 2019
BETWEEN:

MR CARRAS

Applicant
AND:

MS ARVANITIS

Respondent

ORDER MADE BY:

JUDGE HARLAND

DATE OF ORDER:

24 AUGUST 2021

THE COURT ORDERS THAT:

1.The respondent’s application in a case filed on 24 October 2021 be dismissed.

2.The initiating application filed on 12 July 2019 and the response filed on 25 November 2019 be dismissed.

3.Pursuant to s.90RD of the Family Law Act1975 (Cth) the Court declares that the parties were not in a de facto relationship.

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 under the pseudonym Carras & Arvanitis is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE HARLAND:

  1. This decision concerns Mr Carras (“the applicant”) and Ms Arvanitis (“the respondent”). The threshold issue in dispute is whether or not the parties were in a de facto relationship. The matter has a protracted procedural history before the Court. It was not possible to conduct the threshold hearing until Covid-19 restrictions allowed this to occur. Further, the respondent is self-represented and due to her not having access to the technology to allow her to effectively participate in the hearing by way of Microsoft Teams, the matter was most appropriate to be conducted face-to-face, subject to Covid-19 restrictions.

    PROCEDURAL HISTORY

  2. On 12 July 2019, the applicant initiated proceedings seeking unparticularised property adjustment orders.

  3. The respondent did not appear at the first return date on 17 September 2019. I made interim orders requiring the respondent to file and serve a Response, Affidavit and Financial Statement by 6 October 2019. The applicant had sought an abridged date which was refused. The applicant sought interim injunctions after being served with a…

Continue reading Carras & Arvanitis

Sign in free to access the full text

Details
AGLC
Carras & Arvanitis [2021] FCCA 1972
Case
[2021] FCCA 1972
Decision Date

CaseChat Overview and Summary

In *Carras & Arvanitis*, heard by Harland J, the applicant, Mr Carras, and the respondent, Ms Arvanitis, were involved in proceedings concerning the existence of a de facto relationship. The core of the dispute revolved around whether the parties had lived together in a de facto relationship, which would have implications for property division under the *Family Law Act 1975* (Cth).

The court was required to determine whether the parties were in a de facto relationship for the purposes of the *Family Law Act 1975* (Cth). This involved assessing the evidence presented by both parties, particularly regarding the nature and duration of their cohabitation and financial contributions to a jointly purchased property. The court also had to consider the credibility of the parties, given the conflicting accounts of their relationship.

Harland J found that the applicant bore the onus of proving the existence of a de facto relationship on the balance of probabilities. The court considered all the circumstances of the relationship, rather than applying the factors in section 4AA of the *Family Law Act 1975* (Cth) as a rigid checklist. Despite the respondent's inconsistent evidence, the court was not satisfied that the parties had commenced living together in 2005, nor could it find that the applicant had made a financial contribution to the purchase of a property at B Street, Suburb C, as evidenced by a deed signed by the parties. The court noted the respondent's lack of proper affidavits and the repetitive nature of her filings.

Consequently, the court declared that the parties were not in a de facto relationship pursuant to s.90RD of the *Family Law Act 1975* (Cth). The respondent's application filed on 24 October 2021 was dismissed, as were the initiating application filed on 12 July 2019 and the response filed on 25 November 2019.

Orders

Orders of the court

MLC 7795 of 2019

BETWEEN:

MR CARRAS

Applicant

AND:

MS ARVANITIS

Respondent

ORDER MADE BY:

JUDGE HARLAND

DATE OF ORDER:

24 AUGUST 2021

THE COURT ORDERS THAT:

1. The respondent’s application in a case filed on 24 October 2021 be dismissed.

2. The initiating application filed on 12 July 2019 and the response filed on 25 November 2019 be dismissed.

3. Pursuant to s.90RD of the Family Law Act 1975 (Cth) the Court declares that the parties were not in a de facto relationship.

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

One of the difficulties in this case has been the lack of evidence filed by the respondent as I indicated earlier. Whilst there were several attempts by her to file documents, the documents filed were not proper affidavits and were rejected by the registry. The purpose of chambers preparing the court book and providing a hard copy to the respondent was so that it was clear to both parties and the legal representatives for the applicant, what evidence was before the Court, and what was not. Indeed, looking at the court book, is the evidence is somewhat repetitive due to the multiple filings by the respondent of what was, in essence, the same affidavit. For example, it seems that there is the same affidavit but with handwritten comments on it. ANALYSIS OF THE EVIDENCE AND CONCLUSION This is a case where the credibility of the parties is in issue, which makes the task of the Court, particularly in a case like this, more difficult. The applicant bears the onus of proof in establishing on the balance of probabilities the parties were in a de facto relationship. The Court’s task is to make a determination on all of the evidence, considering all of the circumstances of the relationship rather than taking an approach of applying the factors listed in section 4AA of the Family Law Act as a checklist. The section itself and the case law acknowledges that de facto relationships can look very different. Unlike a marriage, unless the parties have registered their relationship there is no official declaration as to the status of the relationship. Both parties had been married before and had children from previous relationships. I do not accept the respondent’s evidence that they were never in any kind of relationship. Her evidence was inconsistent in this regard and it was clear that she was very keen not to make any concessions. She claimed that there was evidence of complaints to police and of the applicant being a trespasser. Such evidence is not before the Court. I am not satisfied that the parties started living together in 2005. There may well have been occasions where the applicant stayed the respondent’s home overnight, particularly when the children were staying with their father, but I am unable to find that it was more consistent than that. The significant event was the parties purchasing the property at B Street, Suburb C. The respondent places much emphasis on the agreement signed by the parties before the purchase was completed. The applicant concedes that the respondent made a greater financial contribution to the purchase of the property, however he says that the proportion of their respective contributions is reflected on the title of the property. The respondent denies that the applicant made any financial contribution to the purchase of the property and claims that he spent the money he received from his father. The applicant does not provide any supporting evidence with respect to his contribution except for one sentence in his affidavit and given my concerns about his credibility, I am unable to make a finding that he made that contribution. I refer to the deed that the parties signed which explicitly states that the applicant did not make any financial contribution to the purchase. Rather, and in this regard the respondent’s evidence was consistent with the applicant by being a co-mortgage or assisted the respondent to borrow more money and buy a bigger property.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.