CREESE & LAPTHORNE - [2017] FamCA 655

FAMILY COURT OF AUSTRALIA

CREESE & LAPTHORNE

[2017] FamCA 655

FAMILY LAW – JURISDICTION – De facto relationship – Where applicant sought alteration of property interests pursuant to s 90SM of the Family Law Act1975 (Cth) – Where applicant sought a declaration that a de facto relationship had existed between the parties within the meaning of s 90SB of the Family Law Act1975 (Cth) – Where the respondent sought a declaration that a de facto relationship never existed between the applicant and the respondent – Consideration of the circumstances set out in s 4AA(2) of the Family Law Act 1975 (Cth) – Where the parties were living together in a de facto relationship – Where threshold of two year cohabitation is not satisfied – Where the applicant had made substantial contributions but was unable to establish that a failure to make a property order would result in a serious injustice – Application dismissed.

Evidence Act 1995 (Cth) s 140(1)
Family Law Act 1975 (Cth) ss 4(1), 4AA, 90RD, 90SB, 90SF(3), 90SM
Social Security Act 1991 (Cth) s 4

Harriott & Arena [2016] FamCAFC 69
Jonah & White (2011) 45 Fam LR 460
Ricci v Jones [2011] FamCAFC 222
Sha & Cham [2017] FamCAFC 161
Sinclair & Whittaker (2013) FLC 93-551

APPLICANT:

Mr Creese

RESPONDENT:

Ms Lapthorne

FILE NUMBER:

DGC

2539

2014

DATE DELIVERED:

25 August 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Johnston J

HEARING DATES:

10, 11 & 12 May 2016; 30 August 2016

REPRESENTATION

FOR THE APPLICANT:

Mr Creese in person

COUNSEL FOR THE RESPONDENT:

Ms Christie (10, 11 & 12 May 2016); Mr Kearney SC with Ms Christie (30 August 2016)

SOLICITOR FOR THE RESPONDENT:

Cleary’s Commercial Lawyers Pty Ltd (10, 11 & 12 May 2016);

McDonell Milne Toltz Family Lawyers (30 August 2017)

Orders

That pursuant to s 90RD of the Family Law Act 1975 (Cth) it is declared that a de facto relationship never existed between Mr Creese and Ms Lapthorne which would attract the application of Part VIIIAB of the Act.
That the Amended Initiating Application filed by Mr Creese on 5 September 2014 be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Creese & Lapthorne has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: DGC 2539 of 2014

Mr Creese

Applicant

And

Ms Lapthorne

Respondent

REASONS FOR JUDGMENT

Introduction

Mr Creese (“the applicant”) and Ms Lapthorne (“the respondent”) agree that they were living in a de facto relationship. They…

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 CREESE & LAPTHORNE

Details

AGLC: CREESE & LAPTHORNE [2017] FamCA 655
Case: [2017] FamCA 655
Decision Date: 25 August 2017

CaseChat Overview and Summary

In the matter of *Creese & Lapthorne*, heard by Johnston J, the applicant, Mr Creese, sought an alteration of property interests under s 90SM of the *Family Law Act 1975* (Cth), asserting the existence of a de facto relationship. Conversely, the respondent, Ms Lapthorne, sought a declaration that no such de facto relationship existed between them, which would preclude the application of Part VIIIAB of the Act.

The central legal issue before the court was whether a de facto relationship, as defined by the *Family Law Act 1975* (Cth), had existed between the parties. This required consideration of the circumstances outlined in s 4AA(2) of the Act, particularly in light of the applicant's claim of substantial contributions despite not meeting the two-year cohabitation threshold. The court also had to determine if, even with substantial contributions, a failure to make a property order would result in a serious injustice to the applicant.

Johnston J reasoned that while the parties had lived together, the threshold of two years of cohabitation, a key factor in establishing a de facto relationship under the Act, was not satisfied. Furthermore, despite the applicant's admitted substantial contributions, the court found that he had failed to establish that a refusal to make a property order would lead to a serious injustice. Consequently, the court declared that a de facto relationship, attracting the application of Part VIIIAB of the Act, had never existed between Mr Creese and Ms Lapthorne.

Accordingly, the court ordered that it be declared that a de facto relationship never existed between Mr Creese and Ms Lapthorne which would attract the application of Part VIIIAB of the Act, and that the Amended Initiating Application filed by Mr Creese be dismissed.

Orders

Orders of the court

That pursuant to s 90RD of the Family Law Act 1975 (Cth) it is declared that a de facto relationship never existed between Mr Creese and Ms Lapthorne which would attract the application of Part VIIIAB of the Act.

That the Amended Initiating Application filed by Mr Creese on 5 September 2014 be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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