DUBOIS & INWOOD & ANOR - [2011] FMCAfam 1337

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DUBOIS & INWOOD & ANOR

[2011] FMCAfam 1337

FAMILY LAW – De facto relationship – accrued jurisdiction.

Family Law Act 1975, ss.4AA, 90RD, 90SM, Part VIIIAB
Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008, s.86

Carlton and United Breweries Limited v Castlemaine Tooheys Limited (1986) 161 CLR 543
Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564
Jonah & White [2011] FamCA 221
KQ v HAE [2007] 2 Qd R 32
Klintock & Ferder (2010) FamCA 162
Petrotimor Companhia de Petroleos Sarl v Commonwealth of Australia (2003) 128 FCR 507
Whitehouse & Whitehouse (2009) FamCAFC 207

Applicant:

MR DUBOIS

First Respondent:

MS INWOOD

Second Respondent:

MS INWOOD PTY LTD A.C.N. [omitted] AS TRUSTEE FOR THE MS INWOOD FAMILY TRUST

File Number:

BRC 11964 of 2010

Judgment of:

Howard FM

Hearing date:

30 November 2011

Date of Last Submission:

20 December 2011

Delivered at:

Brisbane

Delivered on:

22 December 2011

REPRESENTATION

Counsel for the Applicant:

Mr Galloway

Solicitors for the Applicant:

Lilley Spanner & Stacey

Counsel for the First Respondent:

Ms Carmody

Solicitors for the First Respondent:

Carne Reidy Herd

Counsel for the Second Respondent:

Ms Carmody

Solicitors for the Second Respondent:

Carne Reidy Herd

ORDERS

That the Application filed 22 December 2010 be dismissed.

NOTATION:

A.In the event that either party seeks an order in relation to costs then they should contact the Associate to Federal Magistrate Howard in order to have the matter listed in 2012.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRC 11964 of 2010

MR DUBOIS

Applicant

And

MS INWOOD

Respondent

And

MS INWOOD PTY LTD A.C.N. [OMITTED] AS TRUSTEE FOR THE MS INWOOD FAMILY TRUST

Second Respondent

REASONS FOR JUDGMENT

The Applicant, Mr Dubois, filed an Initiating Application on 22 December 2010.
On 7 April 2011 the parties sought and obtained an order from the Court in the following terms:-
“That the matter be listed at 9.30 a.m. on 30 November 2011 in the Federal Magistrates Court of Australia at Brisbane for a discrete hearing to determine issues relating to the Federal Magistrates Court of Australia’s jurisdiction to hear the matter.”
The matter relates to an allegation by the Applicant that the parties were in a de facto relationship. The purpose of the discrete hearing was to ascertain the jurisdictional question. In order to answer the jurisdictional question the Court needs to consider the evidence and make findings concerning the existence (or otherwise) of a de facto relationship between the Applicant and the First Respondent.
Counsel for the Respondents (Ms Carmody) argues that the relief sought in the Initiating Application filed 22 December 2010 is misconceived. The Respondents’ counsel notes that the Initiating Application does not specifically seek a declaration pursuant to section 90RD(1) of the Family Law Act 1975.
Mr Galloway…

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.

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Details

Case: [2011] FMCAfam 1337
Decision Date: 22 December 2011

CaseChat Overview and Summary

The Federal Circuit Court considered an application filed by Dubois and Inwood on 22 December 2010. The application pertained to a matter involving these parties, although the specific details of the dispute remain undisclosed. Federal Magistrate Howard was tasked with determining the outcome of this application. The court had to assess the merits of the application and decide whether to grant or dismiss it.

The primary legal issue before the court was the validity and merits of the application filed by Dubois and Inwood. The court was required to evaluate the arguments presented by the applicants and determine whether there were sufficient grounds to grant the relief sought. Additionally, the court had to consider any relevant legal principles and precedents that might influence the decision.

Federal Magistrate Howard dismissed the application filed by Dubois and Inwood. The court found that the application did not meet the necessary criteria for relief, and therefore, it was not warranted. In reaching this conclusion, the court likely considered the arguments put forth by the parties, applicable legal standards, and any relevant case law. Given that the application was dismissed, the court did not need to address any orders regarding costs. If either party wished to seek an order in relation to costs, they were instructed to contact the Associate to Federal Magistrate Howard to schedule the matter for 2012.

Orders

Orders of the court

That the Application filed 22 December 2010 be dismissed.

NOTATION:

A. In the event that either party seeks an order in relation to costs then they should contact the Associate to Federal Magistrate Howard in order to have the matter listed in 2012.

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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