Dahl & Hamblin

Case [2011] FamCAFC 202

FAMILY COURT OF AUSTRALIA

DAHL & HAMBLIN [2011] FamCAFC 202

FAMILY LAW – APPEAL – De facto relationship – whether the Federal Magistrate erred in making a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) that a de facto relationship of at least two years existed between the parties – whether the Federal Magistrate erred in determining that two periods during which parties agreed they had been in a de facto relationship could be aggregated for the purpose of determining the two year period necessary to enable orders for the alteration of property interests to be made – where the Full Court considered whether the use of the word “periods” in s 90RD(2) and s 90SB(a) of the Family Law Act 1975 (Cth) meant that where there had been a breakdown in a relationship, the periods could be aggregated so that there was only one relationship between the parties – where the Full Court considered whether a period of the relationship which ended prior to the commencement of Part VIIIAB of the Family Law Act 1975 (Cth) could be included in the aggregation of the periods for the purpose of establishing the two year period – no appealable error established – appeal dismissed.

FAMILY LAW – COSTS – no order for costs in relation to the appeal.

Family Law Act 1975 (Cth): s 90RD, s 90SB
Family Law Amendment (De facto Financial Matters and Other Measures) Act 2008

Delany v Burgess (2008) DFC 95-412
Hibberson v George (1989) 12 Fam LR 725
Howland v Ellis (2001) 28 Fam LR 656
L and C (2006) DFC 95-327
Lipman v Lipman (1989) 13 Fam LR 1
Moby & Schulter (2010) FLC 93-447
Vale & Crawford [2009] FMCAfam 1017

Pearce & Geddes, Statutory Interpretation in Australia, 7th ed, LexisNexis Butterworths, Australia, 2011
APPELLANT: Ms Dahl
RESPONDENT: Ms Hamblin  
FILE NUMBER: LEC 108 of 2010
APPEAL NUMBER: NA 67 of 2010
DATE DELIVERED: 13 October 2011  
PLACE DELIVERED: Canberra
PLACE HEARD: Brisbane
JUDGMENT OF: Finn, Coleman and Austin JJ
HEARING DATE: 8 August 2011
LOWER COURT JURISDICTION: Federal Magistrates Court
LOWER COURT JUDGMENT DATE: 24 May 2010
LOWER COURT MNC: [2010] FMCAfam 514

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Gordon
SOLICITOR FOR THE APPELLANT: BL Crane & Associates
COUNSEL FOR THE RESPONDENT: Ms McDiarmid
SOLICITOR FOR THE RESPONDENT: GJ Legal Solicitors

Orders

  1. The appeal against the order made by Federal Magistrate Demack on 24 May 2010 be dismissed.

  2. There be no order for costs in relation to the appeal.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 67 of 2010
File Number: LEC 108 of 2010

Ms Dahl

Appellant

And

Ms Hamblin   

Respondent

REASONS FOR JUDGMENT

  1. This is an appeal by Ms Dahl against a declaration made pursuant to s 90RD of the Family…

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Details
AGLC
Dahl & Hamblin [2011] FamCAFC 202
Case
[2011] FamCAFC 202
Decision Date

CaseChat Overview and Summary

The appeal in Dahl & Hamblin was brought by the respondent, Hamblin, against a decision of the Federal Magistrates Court, which had found that the appellant, Dahl, and the respondent had been in a de facto relationship for a period of at least two years. The finding was made pursuant to section 90RD of the Family Law Act 1975 (Cth) and was a necessary step in the process of making orders for the alteration of property interests between the parties. The Full Court was asked to determine whether the Federal Magistrate had erred in making the declaration and, if so, whether that error was an appealable one. Additionally, the Full Court was asked to consider whether the periods during which the parties had agreed they were in a de facto relationship could be aggregated for the purpose of determining the two-year period.

The legal issues before the Full Court were twofold. Firstly, the Court was asked to determine whether the use of the word "periods" in sections 90RD(2) and 90SB(a) of the Family Law Act 1975 (Cth) meant that where there had been a breakdown in a relationship, the periods could be aggregated so that there was only one relationship between the parties. Secondly, the Court was asked to consider whether a period of the relationship which ended prior to the commencement of Part VIIIAB of the Family Law Act 1975 (Cth) could be included in the aggregation of the periods for the purpose of establishing the two-year period. The Full Court found that the Federal Magistrate had not erred in making the declaration and that there was no appealable error in the decision. The Court held that the use of the word "periods" in the relevant sections of the Family Law Act 1975 (Cth) did not mean that periods could be aggregated where there had been a breakdown in the relationship. Furthermore, the Court found that a period of the relationship which ended prior to the commencement of Part VIIIAB of the Family Law Act 1975 (Cth) could not be included in the aggregation of the periods for the purpose of establishing the two-year period.

The appeal was dismissed, and there was no order for costs in relation to the appeal. The Full Court held that the Federal Magistrate had not erred in making the declaration that the parties had been in a de facto relationship for a period of at least two years. The Court found that the use of the word "periods" in sections 90RD(2) and 90SB(a) of the Family Law Act 1975 (Cth) did not mean that periods could be aggregated where there had been a breakdown in the relationship. Furthermore, the Court found that a period of the relationship which ended prior to the commencement of Part VIIIAB of the Family Law Act 1975 (Cth) could not be included in the aggregation of the periods for the purpose of establishing the two-year period. As such, the appeal was dismissed, and there was no order for costs in relation to the appeal.

Orders

Orders of the court

1.

The appeal against the order made by Federal Magistrate Demack on 24 May 2010 be dismissed.

2.

There be no order for costs in relation to the appeal.

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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