Dandridge and Barron - [2012] FMCAfam 141

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DANDRIDGE & BARRON

[2012] FMCAfam 141

FAMILY LAW – Whether the parties lived in a de facto relationship within the meaning of the Act – evidence does not support a declaration – Elias principle.

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

Moby & Schulter [2009] FamCA 1285
Baker & Landon [2010] FMCAfam 280
Roy v Sturgeon (1986) 11 Fam LR 271
Elias v Elias (1977) FLC 90-267

Applicant:

MS DANDRIDGE

Respondent:

MR BARRON

File number:

DGC 3464 of 2010

Judgment of:

McGuire FM

Hearing dates:

4 November 2011 & 5 December 2011

Date of last submission:

22 December 2011

Delivered at:

Melbourne

Delivered on:

24 February 2012

REPRESENTATION

Counsel for the Applicant:

Mr Triaca

Solicitors for the Applicant:

Borchard & Moore

The Respondent:

In person

ORDERS

That the application filed 11 October 2010 by Ms Dandridge be dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

DGC 3464 of 2010

MS DANDRIDGE

Applicant

And

MR BARRON

Respondent

REASONS FOR JUDGMENT

Ms Dandridge is the applicant for alteration of property interests pursuant to s.90SM of the Family Law Act 1975 (“the Act”). As a preliminary issue, the parties ask that I determine whether or not there be a declaration of a de facto relationship between the parties pursuant to s.90RD of the Act. The respondent, Mr Barron, disputes that he and the applicant were in a de facto relationship within the meaning of the Act. He agrees that the parties were in a relationship from about 2000 until late 2009. He says that the relationship did not proceed beyond that of “boyfriend and girlfriend”.

The law

Section 4AA of the amended Act defines de facto relationship as follows:
(1) A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b) the persons are not related by family (see subsection (6)); and
(c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Section 4AA(2) sets out a number of “circumstances” which may be indicative for the Court of such a relationship. These references are, however, not necessarily definitive of a de facto relationship, nor do they cover the field. This is clear from the wording of the subsection which says:
(2) Those circumstances may include [my emphasis] any or all of the following:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g) whether the relationship is or was registered under
a prescribed law of a State…

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 Dandridge and Barron

Details

AGLC: Dandridge and Barron [2012] FMCAfam 141
Case: [2012] FMCAfam 141
Decision Date

CaseChat Overview and Summary

Ms Dandridge sought a declaration that she was in a de facto relationship with Mr Barron from about 2000 until late 2009, as well as an alteration of property interests pursuant to s.90SM of the Family Law Act 1975. The respondent disputes that he and the applicant were in a de facto relationship within the meaning of the Act. The primary issue before the Court was whether the parties were in a de facto relationship as defined in s.4AA of the Act. The Court considered a number of factors including the duration of the relationship, the nature and extent of the parties’ common residence, the existence of a sexual relationship, financial dependence, interdependence and arrangements for financial support, the ownership, use and acquisition of their property, the degree of commitment to a mutual shared life, registration of the relationship, care and support of the children, and the reputation and public aspects of the relationship.

The Court found that while there were some factors that supported Ms Dandridge's claim of a de facto relationship, there were also factors that favoured the respondent's view that the relationship did not become a committed domestic one. The Court was not satisfied on the balance of probabilities that the relationship of the parties had achieved the status of a de facto relationship. Consequently, the Court dismissed the applicant's application for a declaration of a de facto relationship and an alteration of property interests. The Court certified that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of McGuire FM.

Orders