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Cowell & Ross

Cowell & Ross

Case [2022] FedCFamC2F 427 7 April 2022

Jurisdiction

De Facto Relationship

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cowell & Ross [2022] FedCFamC2F 427

File number: LNC 696 of 2020

Judgment of: JUDGE TURNBULL

Date of judgment: 7 April 2022

Catchwords:
FAMILY LAW – JURISDICTION – PROPERTY – de facto relationship – relationship less than two years in duration – no children of the relationship – parties maintained separate residences – time spent together almost exclusively over weekends – no joint property or finances – no evidence of reputation or public aspects of the relationship

FAMILY LAW – EVIDENCE – relevance – formal irregularities

FAMILY LAW – PROCEDURE – adjournment application – applicant sought to file further material – where applicant self-represented – where applicant on notice of jurisdictional issue since initial trial directions

FAMILY LAW – PROCEDURE – res judicata – cause of action estoppel – contempt application summarily dismissed – where application re-filed three further times following summary dismissal

Legislation:
Evidence Act 1995 (Cth) ss 140, 142

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

Federal Circuit and Family Court of Australia Act 2021 (Cth) pt 6 div 4

Federal Circuit Court of Australia Act 2001 (Cth) s 42

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.04(1)

Federal Circuit Court Rules 2001 (Cth) r 1.03(1)

Cases cited:
Adesso & Peyton [2019] FCCA 343

AON Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175

Asprey & Delamarre [2013] FamCA 214

Britt & Britt [2017] FamCAFC 27

Clayton & Bant [2020] HCA 44

Crowley & Pappas [2013] FamCA 783

Halstron & Halstron [2021] FamCA 437

IMM v R [2016] HCA 14; 257 CLR 300

Jackson v Goldsmith (1950) 81 CLR 446

Johnson & Johnson (1997) FLC 92-764

Jonah & White [2011] FamCA 221
Locke & Norton [2014] FamCA 811

Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; 84 FCR 438

Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589

Re F: Litigants in Person Guidelines [2001] FamCA 348

Spencer & Speight [2014] FamCA 436

Tomson & MacLaren [2021] FamCA 620

Michelle Fernando and Olivia Rundle, ‘The Family Court’s Approach to the “Circumstances” of a De Facto Relationship’ (2021) 34 Australian Journal of Family Law 181

Division: Division 2 Family Law

Number of paragraphs: 234

Date of hearing: 24-26 August 2021, 9-10 November 2021

Place: Heard in Burnie, delivered in Gold Coast via Microsoft Teams

Counsel for the Applicant: The Applicant appeared in person

Counsel for the Respondent: Mr G Williams

Solicitor for the Respondent: Glynn Williams Legal
ORDERS

LNC 696 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR COWELL

Applicant

AND:
MS ROSS

Respondent

ORDER MADE BY:

JUDGE TURNBULL

DATE OF ORDER:

7 APRIL 2022

THE COURT ORDERS THAT:
1.With respect to the Amended Initiating Application filed 2 October 2020, and pursuant to s 90RD of the Family Law Act 1975 (Cth) (‘the Act’), I declare that there was no…

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 Cowell & Ross

Details

AGLC: Cowell & Ross [2022] FedCFamC2F 427
Case: [2022] FedCFamC2F 427
Decision Date

CaseChat Overview and Summary

The matter is between Mr Cowell (the Applicant) and Ms Ross (the Respondent). The Applicant commenced proceedings seeking a declaration of property interests and the return of property items from the Respondent. The proceedings were dismissed for want of jurisdiction. The Applicant seeks the return of several items of property from the Respondent. The Applicant contends that he and the Respondent were in a de facto relationship. The Respondent denies this and contends that there was no de facto relationship between them. The Court found that there was no de facto relationship between the parties. The Court found that the parties did not maintain a shared residence, that there was no financial interdependence between them, and that they did not have a mutual commitment to a shared life. The Court also found that the parties did not publicly represent themselves as a de facto couple. The Court dismissed the proceedings for want of jurisdiction.

Orders