DANIHER & GARLETT - [2014] FCCA 2961

FEDERAL CIRCUIT COURT OF AUSTRALIA

DANIHER & GARLETT

[2014] FCCA 2961

Catchwords:
FAMILY LAW – Property – de facto relationship – jurisdictional issue – whether the parties de facto relationship finally broke down in late 2007/early 2008 or in March 2011 – where the applicant signed Centrelink documents in 2008 and 2009 representing that the de facto relationship ended in February 2008 and that the parties thereafter lived separated under one roof – where the applicant and respondent applied to the Family Court for consent parenting orders in November 2008 and made the same representation – effect of those contrary representations – where the applicant alleged that she was coerced by the respondent into making untrue representations – whether the court can be satisfied on the balance of probabilities that the de facto relationship broke down on or after 1 March 2009.

Legislation:

Family Law Act 1975 (Cth), s.4AA
Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth), ss.86, 86A

Amador & Amador [2009] FamCAFC 196
Crandall & Crandall [2009] FamCAFC 120
Elias & Elias (1977) FLC 90-267
Jordan & Jordan (1997) FLC 92-736
Kazama & Britton [2013] FamCA 4
Nelson & Nelson (1995) 184 CLR 538
Norton & Locke [2013] FamCAFC 202
Owens & Benson [2014] FamCAFC 243

Applicant:

MS DANIHER

Respondent:

MR GARLETT

File Number:

NCC 3233 of 2008

Judgment of:

Judge Terry

Hearing dates:

15 & 16 October 2013 and 14 March 2014

Date of Last Submission:

14 March 2014

Delivered at:

Newcastle

Delivered on:

24 December 2014

REPRESENTATION

Solicitor Advocate for the Applicant:

Mr Haricharen

Solicitors for the Applicant:

Hunter Family Law Centre

The Respondent:

In Person

ORDERS

The application for property settlement contained in the amended initiating application filed on 30 September 2013 is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 3233 of 2008

MS DANIHER

Applicant

And

MR GARLETT

Respondent

REASONS FOR JUDGMENT

Introduction

On 17 August 2012 Ms Daniher filed an application for property settlement. She asked the court to order that her former de facto partner Mr Garlett pay her $90,000.00 and relieve her of liability for a debt which in September 2013 stood at $36,000.00.
Ms Daniher alleged that the de facto relationship broke down in March 2011.
In his response filed on 19 October 2012 Mr Garlett, a self-represented litigant, proposed that Ms Daniher receive something albeit something different to what she wanted[1] but he asserted that the parties’ de facto relationship broke down in late 2007.
[1] Mr Garlett proposed that the terms of an agreement made on 28 February 2009 be carried into effect
This court does not have the jurisdiction to make orders for property settlement between former de facto partners unless the de facto relationship broke down on or after 1 March 2009.[2] Mr Garlett’s response therefore raised a jurisdictional issue.
[2] s.86(1) of…

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 DANIHER & GARLETT

Details

AGLC: Daniher and Garlett [2014] FCCA 2961
Case: [2014] FCCA 2961
Decision Date: 24 December 2014

CaseChat Overview and Summary

This matter concerned an application for property settlement brought by the applicant against the respondent. The parties had a relationship of approximately 13 years, during which they had two children. The applicant asserted that they were in a de facto relationship for a significant portion of this time, while the respondent's position was that the de facto relationship had broken down earlier than the applicant contended. The case was heard by Judge Terry.

The central legal issue before the court was to determine the date of the breakdown of the de facto relationship, which was crucial for assessing the applicant's claim for property settlement. This required the court to consider various factors indicative of a de facto relationship, including the duration of the relationship, the nature and extent of their common residence, the existence of a sexual relationship, and the degree of financial dependence or interdependence. The court also had to resolve conflicting evidence presented by the parties regarding their living arrangements and the cessation of their sexual relationship.

Judge Terry's reasoning focused on the evidence presented regarding the parties' living arrangements. The applicant claimed they shared a common residence until March 2011, but her previous statements to the Family Court and Centrelink suggested they had separate living quarters from February 2008. The court found the respondent's evidence, corroborated by a third party, more credible on this point, inclining the judge to believe the relationship had broken down in early 2008. While acknowledging that a common residence is not essential for a de facto relationship, the evidence regarding separate living quarters, coupled with the applicant's assertions to Centrelink about not sleeping together after February 2008, weighed heavily against the applicant's claim of a continuing de facto relationship until March 2011. The court also noted the parties' efforts to separate their financial affairs in 2008 and 2009.

The application for property settlement was dismissed.

Orders

Orders of the court

The application for property settlement contained in the amended initiating application filed on 30 September 2013 is dismissed.

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

The first circumstance to which I must have regard is the duration of the relationship. The applicant and respondent were in a relationship of some kind or another for 13 years. For part of that time they agreed that they were in a de facto relationship. For the remainder of that time they at the very least lived under one roof (the applicant asserted for two separate periods of one year and the respondent asserted for most of the relationship) and shared the care of their children. This consideration does not assist me to determine whether the de facto relationship broke down in late 2007 or early 2008 or in March 2011. The next consideration is the nature and extent of their common residence. The parties lived on the same property for the entirety of their relationship. It was the applicant’s case that for all of the period at [G] save for the last twelve months they shared the house in a way that a married couple might with no separate living areas and that from January 2007 to March 2011 they both lived in the converted shed or “main house” on [W]. The problem for the applicant is that she told the Family Court and Centrelink that the arrangements at [W] were different as from February 2008. She told the Family Court that she and the respondent had different addresses on [W] and she told Centrelink that they occupied different living quarters on the property. The applicant asks me to accept that she lied then but is telling the truth now but is it not equally possible that she told the truth then and is lying now? The evidence of [X] corroborates the respondent’s evidence that from at least February 2008 the respondent and applicant lived in separate quarters on [W] and this inclines me to the view that it is more likely that the respondent rather than the applicant is telling the truth about this issue. The applicant’s solicitor submitted and I accept that even if I could not be satisfied that the applicant was telling the truth now about this issue it did not automatically doom her case; courts had repeatedly held that it is not necessary to find that parties shared a common residence to find that they were in a de facto relationship. I accept that submission.[17][17] See for example Kazama & Britton [2013] FamCA 4 The next consideration is whether a sexual relationship exists. There was no evidence directly on this issue in the affidavits. It is more likely than not that a sexual relationship existed at one time as the parties have two children. The applicant’s assertions to Centrelink in the form signed on 7 April 2008 that the parties did not sleep together would suggest by inference that there was no sexual relationship after February 2008. The next consideration is the degree of financial dependence or interdependence, and any arrangements for financial support, between them. The parties went to considerable lengths in 2008 and 2009 to ensure that they each received their own separate Centrelink entitlements and that the bank loan they took out in 2007 was separated so that they each made separate repayments to a designated portion of the loan.