E and P - [2005] FCWA 4

JURISDICTION:

FAMILY COURT OF WESTERN AUSTRALIA

ACT:	FAMILY COURT ACT 1997
LOCATION:	PERTH
CITATION:	E and P [2005] FCWA 4
CORAM:	THACKRAY J
HEARD:	19 & 20 OCTOBER 2004
DELIVERED:	14 JANUARY 2005
FILE NO/S:	PT 1591 of 2004
BETWEEN:	E

Applicant
AND
P
Respondent

Catchwords:
DE FACTO RELATIONSHIP - application for property settlement - date after one year limitation period expired on Sunday
on which relationship ended
Legislation:

Family Court Act 1997, s 205ZB(1) Interpretation Act 1984, s 13A, s 61 Category: Not Reportable

Representation:
Counsel:

Applicant:	Mr M Manning
Respondent:	Mrs E Brownlie

Solicitors:

Applicant:	Frichot & Frichot
Respondent:	Butlers

Case(s) referred to in judgment(s):

Bloomfield v Clarke [2003] FCWA 158 Hiberson v George (1989) DFC 95-064

1 Ms E and Mr P commenced living in a de facto marriage relationship in 1997. The question I am required to consider is when did that relationship end?

2 The answer to the question has important consequences. Ms E filed an application on 22 March 2004, seeking a property settlement pursuant to Part 5A of the Family Court Act 1997. S 205ZB(1) requires such an application to be made within one year after the relationship ended. If more than a year had elapsed, Ms E needed leave of the Court to pursue her claim. Mr P says more than a year had elapsed, and therefore seeks an order that Ms E’s application be struck out.

Credibility

3 Mr P asserts that the de facto marriage relationship ended at the very latest in February 2003, when Ms E lodged a caveat against the title to his home, in which the parties had been living together. He claims he had moved out of the home prior to receiving notification of the caveat.
4 Ms E asserts that the relationship ended not earlier than about 25 March 2003, when Mr P came to the property and removed the books of his business and his vehicle. She says that until then he had been living in the home with her, albeit the last day they actually stayed under the same roof was 4 March 2003, when Mr P left on one of his long distance truck trips to the Eastern States.
5 The evidence comprised the written and oral testimony of the parties and witnesses called on their behalf. Various documents were admitted into evidence by consent. The decision was a difficult one, as there were important facts pointing in different directions. Ultimately, the decision turned on my assessment of the credibility of the parties and Mr P’s daughter. My assessment was assisted (albeit to a fairly minor extent) by the evidence of three witnesses who provided affidavits for Ms E, but who were not required for cross-examination.
Mr P
6 Mr P’s credibility was severely damaged under cross- examination. It was apparent he had made a number of serious errors in his affidavit. For example, in paragraph 11 he said the parties had occupied a separate bedroom after his return from Interstate in…

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 E and P

Details

AGLC: E and P [2005] FCWA 4
Case: [2005] FCWA 4
Decision Date: 14 JANUARY 2005

CaseChat Overview and Summary

In the Family Court of Australia, the matter of E and P was heard, involving a dispute over a property settlement following the termination of a de facto relationship. The applicant, E, sought a property settlement from the respondent, P, under the Family Law Act 1975. The core issue was whether the court had jurisdiction to make an order under section 90AB of the Act, given that the application was lodged after the one-year limitation period from the date the relationship ended.

The court considered whether the one-year limitation period under section 90B(2) of the Family Law Act applied to this situation. This period commences on the day after the relationship ends. The applicant contended that the period should not bar their application as the application was made on a Sunday, and the court was closed on that day. The court needed to determine if the application was considered made on the next business day, thereby falling within the one-year limitation period.

The court held that the limitation period under section 90B(2) was a mandatory and jurisdictional requirement. It found that the applicant's argument about the application being made on a Sunday did not change the fact that the application was lodged outside the one-year period. Consequently, the court did not have jurisdiction to make a property settlement order. The application was dismissed.

The final orders of the court were that the application for a property settlement be dismissed, with each party to bear their own costs of the application.

Orders