Cleary and Sarno - [2018] FCCA 96

FEDERAL CIRCUIT COURT OF AUSTRALIA

CLEARY & SARNO

[2018] FCCA 96

Catchwords:
FAMILY LAW – Whether a de facto relationship existed between the parties – length of de facto relationship – de facto relationship more than two years – s.90SM(4) substantial contributions declaration – declaration of a de facto relationship.

Legislation:

Family Law Act 1975, ss.4AA, 90RD, 90SB, 90SK, 90SM

Cases cited:

Harriott & Arena [2016] FamCAFC 69
Jonah & White [2012] FamCAFC 200
L & C [2005] FCWA 23
Moby & Schulter [2009] FamCA 1285
Regan & Walsh [2014] FCCA 2535

Applicant:

MR CLEARY

Respondent:

MS SARNO

File Number:

MLC 1077 of 2016

Judgment of:

Judge Hartnett

Hearing dates:

8, 9, 10 & 11 May 2017

Written submissions received:

23 June 2017

Delivered at:

Melbourne

Delivered on:

25 January 2018

REPRESENTATION

Counsel for the Applicant:

Ms Stoikovska SC

Solicitors for the Applicant:

Westminster Lawyers

Counsel for the Respondent:

Mr Triaca

Solicitors for the Respondent:

Chaim Geron Solicitors

THE COURT DECLARES THAT:

Pursuant to ss.90RD and 4AA of the Family Law Act 1975 (Cth) (‘the Act’) a de facto relationship existed between the Applicant and the Respondent during the following periods:-
(a)late November 2010 for a period of approximately two months;
(b)28 February 2011 until 6 May 2011, a period of approximately two months and one week;
(c)from October 2011 to early September 2013 for a period of approximately 22 months;
(d)11 April 2014 to 25 March 2015 for a period of approximately eleven and a half months; and
(e)19 June 2015 for a period of approximately two and a half months.
Pursuant to s.90RD(2)(e) of the Act each of the parties was ordinarily resident in the State of Victoria during the de facto relationship.
Pursuant to s.90RD of the Act, the Applicant made substantial contributions of a kind mentioned in s.90SM(4)(a) and (b) of the Act.

THE COURT ORDERS THAT:

The parties attend for property mediation with an accredited Family Dispute Resolution Practitioner (“FDRP”) as nominated by Relationships Australia (Victoria).
Within fourteen days each legal representative or self-represented litigant is to contact Relationships Australia (Victoria) (contact detail omitted) to confirm arrangements for mediation.
Within fourteen days of being notified of the nominated FDRP, each party send to the FDRP documents outlining the dispute including the following:-
(a)a copy of the amended application filed on 22 February 2017 and Response filed on 14 April 2016;
(b)a full list of assets (including any superannuation) and liabilities including values;
(c)details of alleged financial contributions;
(d)relevant factors pursuant to section 90SF of the Family Law Act 1975 (Cth), i.e. future needs;
(e)the proposal for property settlement; and
(f)any current intervention or restraining orders.
Unless otherwise exempted from payment the Applicant must pay the Conciliation Conference fee in accordance with the Family Law (Fees) Regulation 2012 (Cth) prior to the property mediation.
Each party exchange a market appraisal or valuation of any asset in dispute no later than fourteen days before the mediation event conducted by the FDRP. (Indicate which of the parties…

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 Cleary and Sarno

Details

AGLC: Cleary and Sarno [2018] FCCA 96
Case: [2018] FCCA 96
Decision Date: 25 January 2018

CaseChat Overview and Summary

In the matter of *Cleary and Sarno*, heard by Judge Hartnett, the parties were engaged in a property dispute. The proceedings concerned the division of assets and liabilities following the breakdown of their relationship.

The court was required to determine the procedural steps necessary to facilitate the resolution of the property settlement. This included establishing a framework for mediation, outlining the documentation to be provided by each party, and setting timelines for the exchange of information and the conduct of the mediation. The court also needed to address the financial aspects of the mediation process, including the payment of fees and the cost of asset valuations.

Judge Hartnett ordered the parties to attend property mediation with an accredited Family Dispute Resolution Practitioner nominated by Relationships Australia (Victoria). Within fourteen days, legal representatives or self-represented litigants were to contact Relationships Australia (Victoria) to confirm mediation arrangements. Subsequently, each party was to provide the nominated practitioner with documents detailing the dispute, including applications, asset and liability lists, financial contributions, relevant factors under section 90SF of the *Family Law Act 1975* (Cth), settlement proposals, and any intervention or restraining orders. The Applicant was ordered to pay the Conciliation Conference fee prior to mediation, unless exempted. Furthermore, each party was to exchange market appraisals or valuations of disputed assets no later than fourteen days before mediation, indicating who should bear the cost, and provide these valuations to the FDRP no later than seven days before the mediation. The matter was adjourned for a final hearing on 19 April 2018, with parties required to file and serve any further affidavit material at least seven days prior to that date.

Orders

Orders of the court

The parties attend for property mediation with an accredited Family Dispute Resolution Practitioner (“FDRP”) as nominated by Relationships Australia (Victoria).

Within fourteen days each legal representative or self-represented litigant is to contact Relationships Australia (Victoria) (contact detail omitted) to confirm arrangements for mediation.

Within fourteen days of being notified of the nominated FDRP, each party send to the FDRP documents outlining the dispute including the following:-

(a) a copy of the amended application filed on 22 February 2017 and Response filed on 14 April 2016;

(b) a full list of assets (including any superannuation) and liabilities including values;

(d) relevant factors pursuant to section 90SF of the Family Law Act 1975 (Cth), i.e. future needs;

(e) the proposal for property settlement; and

(f) any current intervention or restraining orders.

Unless otherwise exempted from payment the Applicant must pay the Conciliation Conference fee in accordance with the Family Law (Fees) Regulation 2012 (Cth) prior to the property mediation.

Each party exchange a market appraisal or valuation of any asset in dispute no later than fourteen days before the mediation event conducted by the FDRP. (Indicate which of the parties should bear the cost of any valuation.)

Each party is to provide to the nominated FDRP any market appraisal or valuation of any asset in dispute no later than seven days before the mediation.

The matter be adjourned to 19 April 2018 at 10.00am for final hearing with an estimated hearing time of one day.

The parties file and serve any further affidavit material they intend to rely upon not less than seven days prior to the final hearing.

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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