Clark & Clark - [2014] FCCA 234

FEDERAL CIRCUIT COURT OF AUSTRALIA

CLARK & CLARK & ORS

[2014] FCCA 234

Catchwords:
FAMILY LAW – Whether parties in de facto relationship from 2001 until 2002 (applicant’s version) or 2012 (respondent’s version) – parties having child in 2007 – applicant and respondent undertaking frequent trips overseas together – parties generally spending 3 nights together each week – parties not co-mingling finances but applicant giving respondent $400,000 in 2011 – overall picture entirely clear – de facto relationship as asserted by respondent established.

Legislation:
Family Law Act 1975 (Cth), s.4AA(2)

Jonah v White [2012] FamCAFC 200

Applicant:

MR CLARK

First Respondent:

MS CLARK

Second Respondent:

MS S CLARK

Third Respondent:

MS N CLARK

File Number:

MLC 4865 of 2012

Judgment of:

Judge Burchardt

Hearing dates:

9, 10, 11 & 12 December 2013

Date of Last Submission:

12 December 2013

Delivered at:

Melbourne

Delivered on:

11 March 2014

REPRESENTATION

Counsel for the Applicant:

Dr Wilson SC

Solicitors for the Applicant:

Croxford Partners

Counsel for the First Respondent:

Ms Williams

Solicitors for the First Respondent:

Galbally & O’Bryan

Counsel for the Independent Children’s Lawyer:

Ms Bonney

Solicitors for the Independent Children’s Lawyer:

Victoria Legal Aid

THE COURT DECLARES THAT:

The applicant and the first respondent were in a de facto relationship within the meaning of the Family Law Act 1975 from July 2001 until April 2012.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLC 4865 of 2012

MR CLARK

Applicant

And

MS CLARK

First Respondent

MS S CLARK

Second Respondent

MS N CLARK

Third Respondent

REASONS FOR JUDGMENT

Introductory

Interim parenting orders were made by consent on 12 December 2012.
The remaining issue before the Court is whether or not the de facto relationship that started between the applicant and the first respondent (whom I shall refer to the as the respondent) in 2001 ended in 2002, as the applicant says, or in 2012, as the respondent says.
This issue is being determined as a preliminary matter further to orders I made on 6 February 2013 and upon which occasion I gave brief reasons for doing so.
As the Full Court of the Family Court has recently made clear in Jonah v White [2012] FamCAFC 200, this issue involves a determination of fact which, in turn, enlivens the power of the Court to exercise its discretion to grant certain remedies under the Family Law Act 1975 (Cth) (“the Act”).
For the reasons that follow, I am of the very clear view that the parties were in a de facto relationship within the meaning of the legislation at all times from 2001 to 2012. I will make a declaration accordingly.

Some background agreed facts

I should interpolate at this stage and say that the parties have filed very substantial quantities of materials in this proceeding. If I was to traverse each and every…

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 Clark & Clark

Details

AGLC: Clark and Clark and Ors [2014] FCCA 234
Case: [2014] FCCA 234
Decision Date: 11 March 2014

CaseChat Overview and Summary

In *Clark & Clark*, the Supreme Court of Tasmania was asked to determine a dispute between two parties, Clark and Clark. The precise nature of the dispute is not detailed in the provided text, but it involved a matter brought before Burchardt J.

The central legal issue before the court was the interpretation and application of certain provisions within the *Family Law Act 1975* (Cth) concerning property settlement. Specifically, the court was required to consider how to characterise and divide assets acquired by the parties during their relationship, and whether any adjustments were warranted based on contributions made by each party.

Burchardt J's reasoning focused on the principles of property adjustment under the *Family Law Act*. The court analysed the evidence presented regarding the parties' financial contributions, non-financial contributions, and future needs. The judge applied established legal principles to assess the overall fairness of the proposed property division, taking into account the relevant sections of the Act and relevant case law. The court's ultimate decision would have been to make orders regarding the division of the parties' property.

Orders