FEDERAL CIRCUIT COURT OF AUSTRALIA
| DOVER & MOSELY & ANOR | [2019] FCCA 2488 |
| Catchwords: FAMILY LAW – De facto property application – relationship less than two years – consideration of substantial contributions – consideration of serious injustice. |
| Legislation: Family Law Act 1975 (Cth), ss.4, 90SB, 90RD, 90SM Evidence Act 1995 (Cth), s.140 |
| Cases cited: Creese & Lapthorne [2017] FamCA655 |
| Applicant: | MS DOVER |
| First Respondent: | MR MOSELY |
| Second Respondent: | MR SMITH & MR VERNON AS TRUSTEES OF THE BANKRUPT ESTATE OF MR MOSELY |
| File Number: | BRC 3360 of 2018 |
| Judgment of: | Judge Lapthorn |
| Hearing date: | 2 April 2019 |
| Date of Last Submission: | 2 April 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 5 September 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Taylor |
| Solicitors for the Applicant: | Michelle Porcheron Lawyers |
| Solicitors for the First Respondent: | Self represented |
| Solicitors for the Second Respondent: | Robinson Locke Litigation Lawyers Pty Ltd |
DECLARATION
That a Declaration be made pursuant to s.90RD of the Family Law Act 1975 that the Applicant, Ms Dover and the First Respondent, Mr Mosely, were in a de facto relationship from … 2016 to February 2018;
ORDERS
That the Initiating Application filed 27 March 2018 and Amended 7 June 2018 be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Dover & Mosely & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 3360 of 2018
| MS DOVER |
Applicant
And
| MR MOSELY |
First Respondent
And
| MR SMITH & MR VERNON AS TRUSTEES OF THE BANKRUPT ESTATE OF MR MOSELY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
I am asked by the applicant, Ms Dover to make a Declaration pursuant to s.90RD of the Family Law Act 1975 (“the Act”) that she and the first respondent, Mr Mosely, were in a de facto relationship from … 2016 to February 2018. If so persuaded I am asked to make orders for property adjustment pursuant to s.90SM of the Act. Mr Mosely is an undischarged bankrupt. The second respondents, Mr Smith and Mr Vernon who are the trustees of the Mr Mosely’s bankrupt estate, oppose the application.
Section 90SM(15) of the Act reads:
“If a bankruptcy trustee is a party to property settlement proceedings in relation to the parties to a de facto relationship, then, except with the leave of the court, the bankrupt party to the de facto relationship is not entitled to make a submission to the court in connection with any vested bankruptcy property in relation to the bankrupt party.
The bankruptcy trustee is a party to these proceedings and leave was not sought by the first respondent in accordance with s.90SM(15). I did not hear submissions from Mr Mosely although he was cross examined by the applicant and the second respondent.
The…
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- Case
- [2019] FCCA 2488
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether a de facto relationship existed between the parties, the precise period of that relationship, and whether the applicant had made substantial contributions of a kind specified in section 90SM(4) of the *Family Law Act 1975* (Cth). Crucially, the court also had to consider whether a failure to make a declaration and subsequent property adjustment orders would result in serious injustice to the applicant, given that the relationship's duration was less than two years, thus precluding the standard application of section 90SB(a).
Judge Lapthorn noted that the parties agreed a de facto relationship had existed and that its duration was less than two years, meaning section 90SB(a) of the *Family Law Act 1975* (Cth) did not apply. The applicant bore the onus of proving the existence and duration of the relationship on the balance of probabilities. While there was agreement on the commencement date in 2016, the parties disputed the separation date, with the applicant claiming February 2018 and the first respondent December 2017. The court considered the applicant's reliance on section 90SB(c)(i) and (ii), which pertains to substantial financial or non-financial contributions to property, and contributions to the welfare of the family, including as homemaker or parent, as outlined in section 90SM(4).
The court ultimately dismissed the applicant's initiating application and amended application.
Orders
Orders of the court
2.
That the Initiating Application filed 27 March 2018 and Amended 7 June 2018 be otherwise 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 power for the Court to make a declaration about the existence of a de facto relationship is to be found in s.90RD which reads:“Section 90RD Declarations about the existence of de facto relationships(1)If:(a)an application is made for an order under section 90SE, 90SG or 90SM a declaration under section 90SL; and(b)a claim is made in support of the application, that a de facto relationship existed between the applicant and another person;the court may, for the purposes of those proceedings (the primary proceedings), declare that a de facto relationship existed, or never existed, between those 2 persons.(2)A declaration under subsection (1) of the existence of a de facto relationship may also declare any or all of the following:(a)the period, or periods, of the de facto relationship for the purposes of paragraph 90SB(a);(b)whether there is a child of the de facto relationship;(c)whether one of the parties to the de facto relationship made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c);(d)when the de facto relationship ended;(e)where each of the parties to the de facto relationship was ordinarily resident during the de facto relationship.” The applicant bears the onus, on the balance of probabilities, of establishing that a de facto relationship existed.[3] There was however agreement between all parties that a de facto relationship had existed and that the period of it was less than two years. Consequently s.90SB(a) does not apply. The parties agreed their relationship commenced in … 2016 however they were in dispute as to the date of separation. The applicant asserted separation occurred in February 2018 which would make the relationship one of 19 months duration. She sought a declaration to that effect. The first respondent gave evidence that they separated in December 2017 after a 16 month relationship. The second respondent relied on the first respondent’s evidence. [3] Creese & Lapthorne [2017] FamCA655; Ricci & Jones [2011] FamCAFC 222. See also s.140(1) of the Evidence Act 1995 (Cth) There is no child of the relationship and therefore s.90SB(b) does not apply. The relationship is not and was never registered under a prescribed law of a State or Territory and therefore s.90SB(d) does not apply. The applicant’s case rested on the provisions of s.90SB(c)(i) and (ii). She invited the court to find that she had made substantial contributions of the kind referred to in s.90SM(4)(a), (b) or (c) and that a failure to make the declaration and an order for property adjustment would result in a serious injustice to her. Section 90SM(4)(a), (b) or (c) reads as follows:“90SM(4) [Matters to take into account] In considering what order (if any) should be made under this section in property settlement proceedings, the court must take into account: (a)the financial contribution made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship: (i)to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or (ii)otherwise in relation to any of that last‑mentioned property; whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and (b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship: (i)to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or (ii)otherwise in relation to any of that last‑mentioned property; whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and (c)the contribution made by a party to the de facto relationship to the welfare of the family constituted by the parties to the de facto relationship and any children of the de facto relationship, including any contribution made in the capacity of homemaker or parent;”