FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Eason & Hallins [2022] FedCFamC2F 1187
File number(s): MLC 7289 of 2021 Judgment of: JUDGE BOYMAL Date of judgment: 1 September 2022 Catchwords: FAMILY LAW – Property – de facto relationship – date of separation in dispute – whether wife’s application for property adjustment commenced within time Legislation: Family Law Act 1975 (Cth) ss 4AA, 44, 90SM Cases cited: Clarence & Crisp [2016] FamCAFC 157
Fairbairn v Radecki [2022] HCA 18
Hayes v Marquis [2008] NSWCA10
Herford & Berke (No. 2) (2019) FLC 93-919
Lynam v Director-General of Social Security (1983) 52 ALR 128
Mayson & Wellard (2021) FamCAFC 115
Sinclair & Whittaker [2013] FamCAFC 129
Division: Division 2 Family Law Number of paragraphs: 148 Date of hearing: 9 February 2022 Place: Geelong Counsel for the Applicant: Mr Arnold Solicitor for the Applicant: Roger O’Halloran & Co Counsel for the Respondent: Mr Ambrose Solicitor for the Respondent: Wightons Lawyers ORDERS
MLC 7289 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS EASON
Applicant
AND: MR HALLINS
Respondent
ORDER MADE BY:
JUDGE BOYMAL
DATE OF ORDER:
1 SEPTEMBER 2022
THE COURT ORDERS THAT:
1.Pursuant to section 90RD of the Family Law Act 1975 (Cth) a de facto relationship is declared to have existed between the parties from 2011 until early October 2019.
2.It is further declared that the parties’ de facto relationship ended in early October 2019.
3.The parties attend a private mediation with Mr B/Mr C as mediator or such other mediator as may be agreed between the parties and each party be responsible for one half of the mediator’s fees.
4.Pursuant to Rule 7.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) unless otherwise agreed, the parties forthwith obtain single expert valuations at equal shared expense of the following:
(a)D Street, Suburb E, Western Australia;
(b)F Street, Suburb G, Victoria; and
(c)H Pty Ltd.
5.The wife file and serve any written submissions as to costs within 21 days.
6.The husband file and serve any response to costs 14 days thereafter.
7.The wife may file and serve any reply 7 days thereafter.
8.The matter be adjourned to 7 February 2023 at 10.00 am for final hearing (with an estimated hearing time of 2 days) at the Federal Circuit and Family Court of Australia in the City J Circuit.
9.No later than 21 days prior to the trial date, the applicant file and serve:
(a)an updated single consolidated trial affidavit;
(b)other witness affidavits upon which they intend to rely; and
(c)an updated financial statement.
10.No later than 14 days prior to the trial date, the respondent file and serve:
(a)an updated single consolidated trial affidavit;
(b)other witness affidavits upon which they intend to rely; and
(c)an updated financial statement.
11.No later than 7 days prior to the trial date:
(a)the applicant file and serve any affidavit(s) in reply addressing only the evidence presented in the respondent(s)’ affidavits; and
12.No later than 2…
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- AGLC
- Eason & Hallins [2022] FedCFamC2F 1187
- Case
- [2022] FedCFamC2F 1187
- Decision Date
CaseChat Overview and Summary
The court found that the de facto relationship between Ms Eason and Mr Hallins had existed from 2011 until early October 2019, and the relationship had indeed ended in early October 2019. The court considered the evidence presented by both parties, including the circumstances surrounding the relationship and the date of separation. In making its decision, the court noted that the onus was on Ms Eason to demonstrate that her application for property adjustment was made within the required time frame. The court found that Ms Eason had satisfied this onus, and thus her application was valid.
The court also made several orders to facilitate the resolution of the property dispute, including the requirement for the parties to attend private mediation, obtain single expert valuations of certain properties, and file various affidavits and documents before the final hearing. The court further directed the parties to adhere to specific timelines for filing and serving these documents and outlined the format for the Court Book to be provided to the court and the other party. The court also noted that if there were allegations of family violence, certain restrictions on cross-examination would apply. The final orders declared the existence and end of the de facto relationship, mandated mediation, required property valuations, set timelines for document filing, and scheduled a final hearing.
Orders
Orders of the court
MLC 7289 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS EASON
Applicant
AND:
MR HALLINS
Respondent
ORDER MADE BY:
JUDGE BOYMAL
DATE OF ORDER:
1 SEPTEMBER 2022
THE COURT ORDERS THAT:
1. Pursuant to section 90RD of the Family Law Act 1975 (Cth) a de facto relationship is declared to have existed between the parties from 2011 until early October 2019.
2. It is further declared that the parties’ de facto relationship ended in early October 2019.
3. The parties attend a private mediation with Mr B/Mr C as mediator or such other mediator as may be agreed between the parties and each party be responsible for one half of the mediator’s fees.
4. Pursuant to Rule 7.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) unless otherwise agreed, the parties forthwith obtain single expert valuations at equal shared expense of the following:
(a) D Street, Suburb E, Western Australia;
(b) F Street, Suburb G, Victoria; and
(c) H Pty Ltd.
5. The wife file and serve any written submissions as to costs within 21 days.
6. The husband file and serve any response to costs 14 days thereafter.
7. The wife may file and serve any reply 7 days thereafter.
8. The matter be adjourned to 7 February 2023 at 10.00 am for final hearing (with an estimated hearing time of 2 days) at the Federal Circuit and Family Court of Australia in the City J Circuit.
9. No later than 21 days prior to the trial date, the applicant file and serve:
(a) an updated single consolidated trial affidavit;
(b) other witness affidavits upon which they intend to rely; and
(c) an updated financial statement.
10. No later than 14 days prior to the trial date, the respondent file and serve:
(a) an updated single consolidated trial affidavit;
(b) other witness affidavits upon which they intend to rely; and
(c) an updated financial statement.
11. No later than 7 days prior to the trial date:
(a) the applicant file and serve any affidavit(s) in reply addressing only the evidence presented in the respondent(s)’ affidavits; and
12. No later than 2 days prior to the trial date, all parties are to file and serve a case outline document which shall include:
(a) a minute of precise Orders sought;
(b) a list of the material relied upon;
(c) a brief chronology listing significant events that are relevant to the issues to be determined by the Court;
(d) a table listing all of the assets, liabilities and financial resources claimed to be relevant to the dispute, with the values contended for by each party and the main contentions on disputes as to:
(i) the assets and liabilities available for division;
(ii) the value of items where the value is in dispute;
(iii) contributions claimed or contended for and the percentage-based adjustment on contributions contended for;
(iv) relevant section 75(2) / 90SF(3) factors and the percentage-based adjustment contended for; and
(v) any further factors relevant to determining a ‘just and equitable’ division of property.
13. Lists of authorities which Counsel intend to cite to the Court during the presentation of any argument, together with copies of any unreported decisions to which it is intended that reference shall be made, should be filed and served not later than two days prior to the hearing.
14. Each party will be permitted to rely on one consolidated trial affidavit and one affidavit in reply (if applicable) only. Reliance on earlier or additional affidavits will not be permitted.
15. All documents required to be filed and all other documents sought to be relied upon (including any court books) must be filed or provided (as applicable) in electronic format to the Court and to each other party.
16. Each party electronically file and serve a Court Book by no later than 2 days prior to trial, such Court Book to:-
(a) be in portable document format (PDF);
(b) be capable of being searchable for specified text;
(c) be paginated and have an index;
(d) have each entry in the index electronically bookmarked; and,
(e) include:-
(i) an Outline of Case document; and,
(ii) all documents previously filed in the proceedings upon which that party seeks to rely at final hearing, NOTING THAT any expert evidence is to be included in the Court Book of the Applicant.
17. The wife advise the Trustee in Bankruptcy of the adjourned date and serve a copy of these Orders upon the Trustee.
THE COURT NOTES THAT:
A. If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 (Cth) apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
B. Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (the Scheme) for representation but any such application must be made at least 12 weeks prior to the final hearing.
C. Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
D. If section 102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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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