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Day & Jacobsen

Day & Jacobsen

Case [2022] FedCFamC2F 1163 30 August 2022

De Facto Relationship

Substantial Contributions

Property Adjustment

Serious Injustice

Financial Contributions

Non-Financial Contributions

Welfare of the Family

Disparity in Contributions

Family Law Act 1975 (Cth)

Family Law

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Federal Circuit and Family Court of Australia
(DIVISION 2)
Day & Jacobsen [2022] FedCFamC2F 1163

File number(s): PAC 4327 of 2019

Judgment of: JUDGE NEWBRUN

Date of judgment: 30 August 2022

Catchwords: FAMILY LAW – de facto property adjustment proceedings – threshold hearing – declaration that the parties were in a de facto relationship, within the meaning of s 4AA(1) of the Family Law Act 1975 (Cth), for a period of less than two years, and the Applicant made substantial contributions of a kind mentioned in s 90 SM(4) and that a failure to make the declaration would result in serious injustice to the Applicant – property adjustment Orders made

Legislation: Family Law Act 1975 (Cth), ss 4AA, 90RG, 90SB, 90SF, 90SM, 90SB(c)

Cases cited:
Dover & Mosely & Anor [2019] FCCA 2488

Lotta & Lotta [2017] FamCA 50

Division: Division 2 Family Law

Number of paragraphs: 64

Date of hearing: 4–5 August 2022

Place: Parramatta

Solicitor for the Applicant: Mr Tees

Counsel for the Respondent: Mr Strik

Solicitor for the Respondent: Jack Riggs Solicitors
ORDERS

PAC 4327 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS DAY

Applicant

AND:
MR JACOBSEN

Respondent

order made by:

JUDGE NEWBRUN

DATE OF ORDER:

30 August 2022

THE COURT ORDERS THAT:
1.The Court declares, pursuant to section 90SB(c) of the Family Law Act 1975 (Cth) (“the Act”), that the Applicant and the Respondent were in a de facto relationship, within the meaning of section 4AA(1) of the Act, for a period of less than two years, and the Applicant made substantial contributions of a kind mentioned in paragraph 90SM(4) (a), (b) or (c), and that a failure to make the declaration would result in serious injustice to the Applicant.
2.Within three (3) months from the date of these Orders, the Respondent shall pay to the Applicant the sum of $27,787.
3.Following payment of the above sum of $27,787 to the Applicant by the Respondent, the Applicant shall forthwith do all things and sign all documents necessary to remove the caveat on the Respondent’s real estate property at B Street, Town C, NSW, but at the Respondent’s cost.
4.The cats named D and E, and the dogs named F and G, shall remain in the permanent care of the Respondent, and the Applicant, within 28 days, shall sign all necessary documents to cause such animals to be registered in the name of the Respondent.
5.Except as provided above, each party shall be entitled, to the exclusion of the other party, to the sole legal and beneficial ownership of all other property, both real and personal, which is registered in each of their names or is in their current possession or control, including their superannuation entitlements, and they shall be solely liable for and indemnify the other against any personal liabilities.
6.In the event that neither party refuses or neglects to sign within 14 days after receipt of a written request to do so any documents necessary to put…

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 Day & Jacobsen

Details

AGLC: Day & Jacobsen [2022] FedCFamC2F 1163
Case: [2022] FedCFamC2F 1163
Decision Date

CaseChat Overview and Summary

The matter before the Court was a property adjustment application by the Applicant, Ms Day, against the Respondent, Mr Jacobsen. The Applicant sought a declaration that the parties were in a de facto relationship for a period of less than two years and that she had made substantial contributions of a kind mentioned in s 90SM(4) of the Family Law Act 1975 (Cth), and that a failure to make the declaration would result in serious injustice to her. The Applicant also sought a property adjustment Order in her favour. The Respondent opposed the Applicant’s claims. The Court found that the parties were in a de facto relationship from about October 2017 to about 5 August 2019, being a period of less than two years. The Court found that the Applicant made financial contributions towards the acquisition or improvement of the Respondent’s cash assets and non-financial contributions towards the conservation or improvement of the Respondent’s property at B Street, Town C. The Court also found that the Applicant made a contribution to the welfare of the family constituted by the Applicant and the Respondent through her financial contributions towards the purchase of groceries and living expenses of the parties. The Court found that the Applicant’s contributions, when considered together and viewed holistically, constituted substantial contributions by the Applicant and that a failure to make an Order under s 90SM would result in serious injustice to the Applicant. The Court ordered that the Applicant and the Respondent were in a de facto relationship, within the meaning of section 4AA(1) of the Family Law Act 1975 (Cth), for a period of less than two years, and the Applicant made substantial contributions of a kind mentioned in paragraph 90SM(4) (a), (b), or (c), and that a failure to make the declaration would result in serious injustice to the Applicant. The Court also ordered that the Respondent pay to the Applicant the sum of $27,787 within three months from the date of the Orders. On payment of this sum to the Applicant, the Applicant should remove her caveat over the Respondent’s real estate property at B Street, Town C, NSW. The cats named D and E, and the dogs named F and G, should remain in the permanent care of the Respondent.

Orders