DELL & NACHMAN - [2013] FMCAfam 37

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DELL & NACHMAN

[2013] FMCAfam 37

FAMILY LAW – Lengthy relationship – applicant asserted de facto relationship – respondent asserting friendship only – applicant dying after proceeding issued – substantial dispute as to contribution issues – consideration of matters arising from High Court decision in Stanford – de facto relationship proved – whether appropriate to make orders in favour of the deceased if deceased still alive – whether to make orders in favour of deceased now – orders made.

Family Law Act 1975, ss.79, 79(8), 90SM, 90SM(8)

Stanford v Stanford [2012] HCA 52
Erdem & Ozsoy [2012] FMCAfam 1323

Applicant:

MR DELL

Respondent:

MR NACHMAN

File Number:

MLC 6002 of 2011

Judgment of:

Burchardt FM

Hearing dates:

27, 30 July, 9 August, 4 & 5 October and
27 November 2012

Date of Last Submission:

27 November 2012

Delivered at:

Melbourne

Delivered on:

29 January 2013

REPRESENTATION

Counsel for the Applicant:

Mr Arnold

Solicitors for the Applicant:

Bailey Timms Hansen & Rossis

Counsel for the Respondent:

Ms Messer

Solicitors for the Respondent:

Hartleys Lawyers

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 6002 of 2011

MR DELL

Applicant

And

MR NACHMAN

Respondent

REASONS FOR JUDGMENT

Introductory

This is a claim in which the estate of Ms F is pursuing a just and equitable distribution as between Ms F’s property interests and those of the respondent.
The applicant, who is the son and personal representative of

Ms F, asserts that the late Ms F was in a de facto relationship with the respondent from about 1979 until 2010. Mr Nachman denies that there was ever a de facto relationship (notwithstanding that his then counsel expressly conceded such a relationship before the Court in November 2011) and says further that if the Court finds there was a de facto relationship, the whole of the available pool should remain vested in Mr Nachman.
For the reasons that follow, I find that Ms F and the respondent were in a de facto relationship from 1979 to 2010 and that a just and equitable division of the property pool should allot one third of the pool to the applicant.

The de facto issue

The affidavit evidence

Both parties proceeded on the footing that for the Court to entertain the matter at all it was necessary for the Court to establish whether or not the parties had been in a de facto relationship. Counsel for the respondent took the Court to a number of authorities to this effect but the proposition is not, in my opinion, controversial. This issue took up most of the time the parties spent in Court.
The proceedings were commenced on behalf of Ms F by State Trustees Limited, which body was appointed administrator of Ms F’s affairs by order of the Victorian Civil and Administrative Tribunal on 4 February…

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 DELL & NACHMAN

Details

AGLC: DELL & NACHMAN [2013] FMCAfam 37
Case: [2013] FMCAfam 37
Decision Date: 29 January 2013

CaseChat Overview and Summary

The case involves a claim by the estate of Ms F for a just and equitable distribution of property between Ms F and Mr Nachman. The applicant, Mr Dell, asserts that Ms F was in a de facto relationship with Mr Nachman from 1979 to 2010, while Mr Nachman denies the existence of such a relationship. The central legal issues revolve around whether a de facto relationship existed between Ms F and Mr Nachman and, if so, what constitutes a just and equitable division of their property. The court found that a de facto relationship did exist and awarded one third of the property pool to the applicant's estate, considering the substantial contribution of Ms F to the relationship and Mr Nachman's dominance over her. The court also addressed the implications of the High Court's decision in Stanford v Stanford, concluding that it was appropriate to make orders in favor of the deceased's estate despite her death.

Orders