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 | of | 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…
Continue reading CREESE & LAPTHORNE
Sign in free to access the full text
- AGLC
- CREESE & LAPTHORNE [2017] FamCA 655
- Case
- [2017] FamCA 655
- Decision Date
CaseChat Overview and Summary
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
1.
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.
2.
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
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.