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 |
| APPELLANT: | Mr Delamarre |
| RESPONDENT: | Ms Asprey |
| FILE NUMBER: | SYC | 4348 | of | 2011 |
| APPEAL NUMBER: | EA | 47 | of | 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…
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- AGLC
- Delamarre & Asprey [2014] FamCAFC 218
- Case
- [2014] FamCAFC 218
- Decision Date
CaseChat Overview and Summary
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
1.
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.
2.
The appeal against the order be otherwise dismissed.
3.
There be no order as to 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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