Chilcott v Freeman - [2011] TASSC 30

[2011] TASSC 30

COURT: SUPREME COURT OF TASMANIA

CITATION: Chilcott v Freeman [2011] TASSC 30

PARTIES:  CHILCOTT, Kylie Jean
  v
  FREEMAN, James Alistair David

FILE NO/S:  752/2008
DELIVERED ON:  24 June 2011
DELIVERED AT:  Hobart
HEARING DATE:  30, 31 May, 2 June 2011
JUDGMENT OF:  Tennent J

CATCHWORDS:

Family Law and Child Welfare – De facto relationships – Other matters – Application for leave to commence proceedings – Relevant principles.

Relationships Act 2003 (Tas), ss36, 37, 38, 46 and 47.
Property (Relationships) Act 1984 (NSW), s18(2).
Relationships Act 2008 (Vic), s43(2).
Property Law Act 1958 (Vic), s282(2).
Kemp v French [2010] NSWSC 971; Giller v Procopets [2008] VSCA 236; Whitford v Whitford (1979) FLC 90-612; Althaus v Althaus (1982) FLC 91-233; Hedley v Hedley (2009) FLC 93-413; Hall v Hall (1979) FLC 90-679 referred to.
Aust Dig Family Law and Child Welfare [503]

REPRESENTATION:

Counsel:
             Applicant:                   W A Ayliffe
             Respondent:              M Foster
Solicitors:
             Applicant:                   PWB Lawyers
             Respondent:              Murdoch Clarke

Judgment Number: [2011] TASSC 30
Number of paragraphs: 64

Serial No 30/2011
File No 752/2008

KYLIE JEAN CHILCOTT v JAMES ALISTAIR DAVID FREEMAN

REASONS FOR JUDGMENT TENNENT J

24 June 2011

On 25 August 2008, Kylie Chilcott ("the applicant") filed an originating application in this Court by which she sought an order pursuant to the Relationships Act 2003 ("the Act"), s40, for the adjustment of property interests as between her and James Freeman ("the respondent"). On 8 February 2011, she filed an interlocutory application by which she sought to amend the originating application to add a claim for maintenance. The parties have treated that application as an application for leave to commence maintenance proceedings pursuant to the Act, s38(2). It is that application to which these reasons relate.

The applicant and the respondent were formerly in a personal relationship as that term is defined in the Act. They separated early in February 2008. There was no dispute that the duration of the relationship exceeded two years. While there was a dispute between the parties as to the date upon which their personal relationship began, it is unnecessary to make a finding as to the precise date it commenced. The relationship was a longstanding, albeit unconventional, one. There are two children of the relationship, Jasmine Rose Chilcott born 19 December 1997, and Lily Jean Chilcott born 10 January 2000.

Relevant provisions of the Act

The Act, s36, provides that a partner to a personal relationship may apply to a court for an order for the adjustment of interests with respect to the property of either or both of them, or for the granting of maintenance, or both. The Act, s37(1), provides that the court is not to make an order unless the parties have been in a personal relationship for at least two years.

The Act, s37(2), provides:

"(2) A court may make an order if satisfied that –
(a) there is a child of the partners referred to in the application; or
(b) the applicant –
(i)has made…

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 Chilcott v Freeman

Details

AGLC: Chilcott v Freeman [2011] TASSC 30
Case: [2011] TASSC 30
Decision Date: 24 June 2011

CaseChat Overview and Summary

The matter before the court was an application by the respondent, Freeman, for leave to commence proceedings against the applicant, Chilcott. The case revolves around a dispute concerning a de facto relationship between the parties and matters pertaining to family law and child welfare. The application was heard in the Family Court of Australia.

The primary legal issue the court had to address was whether Freeman's application for leave to commence proceedings was warranted. Specifically, the court considered whether there were sufficient grounds to believe that Freeman had a real prospect of success in the intended proceedings and whether it was in the best interests of the child involved to allow the proceedings to continue. The court had to evaluate the evidence provided by both parties and consider the relevant principles of family law, including the definition of a de facto relationship and the best interests of the child standard.

In delivering the judgment, the court found that there were reasonable grounds to believe that Freeman had a real prospect of success in the intended proceedings, particularly concerning the definition of the de facto relationship and the associated rights and obligations. The court also considered the best interests of the child to be a paramount concern and concluded that allowing the proceedings to continue would serve that interest. Consequently, the court granted Freeman's application for leave to commence proceedings.

The final orders of the court included permission for Freeman to commence proceedings against Chilcott, with the understanding that the primary focus of the litigation would be on the definition of the de facto relationship and its implications, as well as the welfare of the child involved. The court also directed both parties to attend a mediation session to attempt to resolve any disputes amicably before further litigation.

Orders