Christofis & Zorbas - [2011] FMCAfam 571

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CHRISTOFIS & ZORBAS

[2011] FMCAfam 571

FAMILY LAW – De facto – preliminary consideration of jurisdictional issue as to whether or not the parties lived in a de facto relationship.

Family Law Act 1975, ss.4AA, 90RD
Property (Relationships) Act 1984 (NSW)

Baker & Landon [2010] FMCAfam 280
Roy v Sturgeon (1986) 11 NSWLR 454; (1986) 11 Fam LR 271
Elias v Elias (1977) FLC ¶90-267
Moby & Schulter [2010] FamCA 748

Applicant:

MR CHRISTOFIS

Respondent:

MS ZORBAS

File Number:

DGC 3085 of 2010

Judgment of:

McGuire FM

Hearing dates:

28, 29 & 30 March 2011

Date of Last Submission:

30 March 2011

Delivered at:

Melbourne

Delivered on:

10 June 2011

REPRESENTATION

Counsel for the Applicant:

Ms Jenkins

Solicitors for the Applicant:

Ken Smith & Associates

Counsel for the Respondent:

Ms Dunlop

Solicitors for the Respondent:

Waters Lawyers

ORDERS

Pursuant to section 90RD of the Family Law Act 1975 IT IS DECLARED THAT a de facto relationship existed between the applicant Mr Christofis and the respondent Ms Zorbas for the period from 2002 until May 2010.
The parties and their legal representatives attend a conciliation conference with a Registrar of this Court at the Melbourne Registry on 19 August 2011 at 11.00 am.
The matter be
adjourned for final hearing before McGuire FM on

16 November 2011 at 10.00 am at Melbourne (with an estimated hearing time of one day).
Each party file and serve all affidavits upon which they seek to rely not later than 4.00 pm 28 days prior to the final hearing, and the parties shall not file further affidavits after that time without first obtaining leave from Federal Magistrate McGuire to so do.
Each party file and serve a case summary document not later than

7 days prior to the final hearing.
The Applicant pay the hearing fee or reduced hearing fee in accordance with, and within the time specified in, the Federal Magistrates Regulations 2000.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT DANDENONG

DGC 3085 of 2010

MR CHRISTOFIS

Applicant

And

MS ZORBAS

Respondent

REASONS FOR JUDGMENT

The applicant, Mr Christofis, seeks a declaration pursuant to s.90RD of the Family Law Act 1975 (“the Act”) that he and the respondent,
Ms Zorbas, were in a de facto relationship within the meaning of the Act from 2002 until May 2010.
The respondent argues that there was no de facto relationship

or, alternatively, if such a relationship did exist then is concluded

in 2005 and prior to the amendments to the Act of 1 March 2009 conferring jurisdiction on the Federal Magistrates Court of Australia and the Family Court of Australia to deal with financial issues between parties to a de facto relationship.
The parties ask the Court to determine this issue as a preliminary matter to the substantive issue of a property settlement.

The…

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 Christofis & Zorbas

Details

AGLC: Christofis & Zorbas [2011] FMCAfam 571
Case: [2011] FMCAfam 571
Decision Date: 10 June 2011

CaseChat Overview and Summary

The case before the court involved a dispute between Mr Christofis and Ms Zorbas regarding the existence of a de facto relationship. The applicant, Mr Christofis, sought a declaration under section 90RD of the Family Law Act 1975 that a de facto relationship existed between him and the respondent, Ms Zorbas, from 2002 until May 2010. The matter was heard and determined by the Federal Magistrates Court of Australia.

The primary legal issue before the court was whether a de facto relationship existed between the parties for the period specified. The court was required to consider the evidence presented by both parties and determine whether the relationship met the criteria outlined in section 90AA of the Family Law Act 1975. This included examining the nature and duration of the relationship, whether the parties lived together on a genuine domestic basis, and other relevant factors.

The court found that a de facto relationship did exist between Mr Christofis and Ms Zorbas for the period from 2002 until May 2010. The evidence presented by both parties was considered, and the court found that the relationship met the criteria for a de facto relationship as outlined in the Family Law Act 1975. The court ordered that a conciliation conference be held with a Registrar of the court on 19 August 2011 at 11.00 am. The matter was further adjourned for final hearing before McGuire FM on 16 November 2011 at 10.00 am at Melbourne, with an estimated hearing time of one day. The court also imposed conditions on the filing and serving of affidavits and case summary documents by the parties.

Orders

Orders of the court

Pursuant to section 90RD of the Family Law Act 1975 IT IS DECLARED THAT a de facto relationship existed between the applicant Mr Christofis and the respondent Ms Zorbas for the period from 2002 until May 2010.

The parties and their legal representatives attend a conciliation conference with a Registrar of this Court at the Melbourne Registry on 19 August 2011 at 11.00 am.

The matter be

adjourned for final hearing before McGuire FM on

16 November 2011 at 10.00 am at Melbourne (with an estimated hearing time of one day).

Each party file and serve all affidavits upon which they seek to rely not later than 4.00 pm 28 days prior to the final hearing, and the parties shall not file further affidavits after that time without first obtaining leave from Federal Magistrate McGuire to so do.

Each party file and serve a case summary document not later than

7 days prior to the final hearing.

The Applicant pay the hearing fee or reduced hearing fee in accordance with, and within the time specified in, the

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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