Legal Research
Cases
Delamarre & Asprey

Delamarre & Asprey

Case [2014] FamCAFC 218 14 November 2014

Appeal

De Facto Relationship

Type to search within this case.

FAMILY COURT OF AUSTRALIA

DELAMARRE & ASPREY

[2014] FamCAFC 218

FAMILY LAW – APPEAL – DE FACTO RELATIONSHIP – where the appellant asserts that the trial judge erred in making a declaration under section 90RD(1) of the Family Law Act 1975 (Cth) that a de facto relationship existed between himself and the respondent between certain periods – where the Full Court found that the trial judge considered all of the relevant provisions in the definition of “de facto relationship” in section 4AA – where there was no error in the finding of a de facto relationship – where the Full Court found that the trial judge erred in recording in the declaration the commencement date for the de facto relationship as the date when the parties first met – the Full Court found that under section 90RD(1) it was not necessary for the dates of the relationship to be included in the declaration – accordingly the Full Court amended the declaration – no order for costs – the appeal be allowed in part.

Family Law Act 1975 (Cth)

Cadman & Hallett [2014] FamCAFC 142
Jonah & White (2012) FLC 93-522; (2012) 48 Fam LR 562
Sinclair & Whittaker (2013) FLC 93-550

APPELLANT:

Mr Delamarre

RESPONDENT:

Ms Asprey

FILE NUMBER:

SYC

4348

2011

APPEAL NUMBER:

2013

DATE DELIVERED:

14 November 2014

PLACE DELIVERED:

Canberra

PLACE HEARD:

Sydney

JUDGMENT OF:

Faulks DCJ, Finn & Strickland JJ

HEARING DATE:

6 February 2014

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

05 April 2013

LOWER COURT MNC:

[2013] FamCA 214

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Hodgson

SOLICITOR FOR THE APPELLANT:

Aubrey Brown Partners

COUNSEL FOR THE RESPONDENT:

Ms Bridger

SOLICITOR FOR THE RESPONDENT:

Jo-Anna F S Moy Solicitor

Orders

The appeal be allowed but only to the extent necessary to delete the words “from May 2002 until January 2011” from the declaration numbered 1.1 in Order 1 (“the order”) of the orders made by the Honourable Justice Cleary on

5 April 2013.
The appeal against the order be otherwise dismissed.
There be no order as to costs in relation to the appeal.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Delamarre & Asprey has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 47 of 2013
File Number: SYC 4348 of 2011

Mr Delamarre

Appellant

And

Ms Asprey

Respondent

REASONS FOR JUDGMENT

On 5 April 2013 Cleary J ordered that:
(1)Declarations pursuant to S90RD of the Family Law Act 1975 (Cth) are made as follows:
1.1That a de facto relationship existed between [Ms Asprey] and [Mr Delamarre] from May 2002 until January 2011.
1.2That there are two children of the de facto relationship namely [B] born … July 2007 (“[B]”) and [C] born … September 2010 (“[C]”).
…
Mr Delamarre now appeals against that order. The appeal is…

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 Delamarre & Asprey

Details

AGLC: Delamarre & Asprey [2014] FamCAFC 218
Case: [2014] FamCAFC 218
Decision Date: 14 November 2014

CaseChat Overview and Summary

The appeal involved the appellant challenging the declaration made by the trial judge under section 90RD(1) of the Family Law Act 1975 (Cth) that a de facto relationship existed between himself and the respondent during certain periods. The dispute was heard in the Family Court of Australia and the appeal was subsequently heard by the Full Court. The appellant contested the accuracy of the dates specified in the declaration and argued that the trial judge had erred in including these dates. The Full Court was tasked with determining whether the trial judge had correctly identified all relevant factors in defining the de facto relationship and whether there was any procedural error in the inclusion of the dates in the declaration.

The legal issues before the court were whether the trial judge had correctly applied the definition of "de facto relationship" as outlined in section 4AA of the Family Law Act, and if the inclusion of specific dates in the declaration was necessary or permissible under section 90RD(1). The Full Court reviewed the trial judge's consideration of the statutory criteria for a de facto relationship and assessed the necessity and appropriateness of the dates in the declaration. The court also needed to decide if any error in the declaration affected the validity of the overall finding of the de facto relationship.

The Full Court found that the trial judge had appropriately considered all relevant provisions in defining a de facto relationship and there was no error in the finding itself. However, the court identified that the trial judge had erred in recording the commencement date for the de facto relationship as the date when the parties first met, rather than when the relationship began to satisfy the statutory criteria. The Full Court clarified that under section 90RD(1), it was not necessary for the dates of the relationship to be included in the declaration. Consequently, the Full Court amended the declaration by deleting the specified dates and found no other error in the trial judge's decision. The appeal was allowed in part to correct the declaration, but the rest of the order was upheld.

The final orders made by the Full Court were to allow the appeal only to the extent necessary to delete the specified dates from the declaration, dismiss the appeal in all other respects, and make no order as to costs in relation to the appeal.

Orders

Orders of the court

The appeal be allowed but only to the extent necessary to delete the words “from May 2002 until January 2011” from the declaration numbered 1.1 in Order 1 (“the order”) of the orders made by the Honourable Justice Cleary on

5 April 2013.

The appeal against the order be otherwise dismissed.

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

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.

Citations

AGLC Citation

Delamarre & Asprey [2014] FamCAFC 218

Most Recent Citation

Scrivan & Neil [2023] FedCFamC2F 949

Cases citing this decision · 10 of 10 shown

Velichkov & Velichkov
[2024] FedCFamC1F 150 Para 43

…The Full Court found no error in the trial Judge’s approach in Delamarre & Asprey [2014] FamCAFC 218 of according little weight to the parties maintaining separate finances in her assessment as to whether they were in a de facto relationship. The Full Court accepted the trial Judge’s observation, that “ financial ind…
Scrivan & Neil
[2023] FedCFamC2F 949 Para 18

…FamCAFC 129 and Crick and Bennett [2018] FamCAFC 68. I also have regard to the comments of the Full Court of the Family Court in Delamarre and Asprey [2014] FamCAFC 218 at paragraph 18: It must also be pointed out that there is no requirement in the Act that a court in applying s 4AA is required to carry out a specif…
Sofia & Treacy
[2022] FedCFamC1F 777 Para 21

…I note in the Full Court decision of Delamarre & Asprey [2014] FamCAFC 218 (“ Delamarre ”), their Honour’s found no error in the trial Judge according little weight to the parties’ maintaining separate finances in her assessment as to whether they were in a de facto relationship. The Full Court accepted the trial Jud…
Gilliam & Barre
[2022] FedCFamC1F 465

…r (1987) 164 CLR 137; [1987] HCA 59 Delamarre & Asprey (2014) FLC 93-616; [2014] FamCAFC 218 Fairbairn v Radecki (2022) 400 ALR 613; [2022] HCA 18 Harriot & Arena (2016) FLC 93-702; [2016] FamCAFC 69 Lee & Hutton (2013) 50 Fam LR 322; [2013] FamCA 745 McMaster v Wilkie-Snow [2011] ACTSC 183 Miller & Trent (2011) 250…
Carras & Arvanitis
[2021] FCCA 1972

…ederal Circuit Court Rules 2001 , r 13.10 Cases cited: Bigg v Suzi (1998) FLC 92-799 Crick and Bennett [2018] FamCAFC 68 Delamarre and Asprey [2014] FamCAFC 218 Gitane v Velacruz [2007] FamCA 183 Jonah & White [2011] FamCA 221 Lindon v Commonwealth (No 2) [1996] HCA 14 Moby & Schulter (2010) FLC 93-447 Sinclair and W…
HUBERT & STROUD
[2019] FCCA 2538 Para 1

…kis .[15] [10] Ricci & Jones [2011] FamCAFC 222. [11] Moby & Schulter [2010] FamCA 748. [12] Jonah v White [2012] FamCAFC 200. [13] Delmarre & Asprey [2014] FamCAFC 218. [14] Somers & Collier [2017] FamCAFC 123. [15] Sfakianakis & Sfakianakis [2018] FamCAFC 185.…
BEAUMONT & SCHULTES
[2019] FCCA 1831 Para 1

…The Full Court in Sinclair & Whittaker (2013) FLC 93-550 (supported in Delamarre & Asprey [2014] FamCAFC 218 at [39]) at [65] said “the ultimate decision as to whether there is a de facto relationship at any given time is a decision for the court and not for the parties, the perception of the parties as to the nature…
MULLAN & PRESTON
[2019] FCCA 1129

…Cases cited: Anson & Meek [2017] FamCAFC 257 Delamarre & Asprey [2014] FamCAFC 218 Hardie & Capris [2010] FamCA 1046 Hickey v Hickey & Attorney-General of the Commonwealth (Intervener) (2003) FLC 93-143 Holland & Holland (2017) FLC 93-798 Jonah & White (2012) 48 FamLR 562 Mazorski v Albright (2007) 37 Fam LR Moose &…
ADAIR & ZAMMIT
[2015] FCCA 3396 Para 4

…and had adult children. In this regard, I note the comments of the trial judge with which the Full Court agreed at paragraph 19 of Delamarre v Asprey [2014] FamCAFC 218 that observation being that “financial independence is not uncommon in modern relationships including marriage” .…
GRUDA & ELLIS
[2015] FCCA 960 Para 2

…Counsel for the applicant relies on Delamarre & Asprey [2014] FamCAFC 218. At paragraph 6 of that case, Deputy Chief Justice Faulks and Justices Finn and Strickland say: It was said by the Full Court in Jonah & White (2012) 48 Fam LR 562 at [32] and [33]; (2012) FLC 93-522 at 86, 682, in relation to s 4AA: a)It is im…

View all 10 citing cases →

Cases cited in this decision · 2 of 2 shown

Cadman & Hallett
[2014] FamCAFC 142 Para 2

…de facto relationship is made. (See also the Full Court decisions of Sinclair & Whittaker (2013) FLC 93-551 at [93] and [94] and Cadman & Hallett [2014] FamCAFC 142 at [41] and [42].)…
Asprey and Delamarre
[2013] FamCA 214

…[2013] FamCA 214…

Legislation cited in this decision · 2

Family Law Act 1975 (Cth)
1 mention
Federal Proceedings (Costs) Act 1981 (Cth)
1 mention (from Para 1)