Eden & Eden - [2022] FedCFamC2F 891

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Eden & Eden [2022] FedCFamC2F 891

File number: SYC 5080 of 2017

Judgment of: JUDGE MORLEY

Date of judgment: 8 July 2022

Catchwords:
FAMILY LAW – De facto relationship – question as to whether relationship broke down on a final basis before or after 1 March 2009 – resultant question as to jurisdiction of the Court to hear an application pursuant to section 90SM – Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) – Court finds that relationship broke down on a final basis before 1 March 2009 – Court has no jurisdiction to entertain section 90SM application.

FAMILY LAW – Evidence – discussion of the operation of the Elias principle.

Legislation:
Child Support (Assessment) Act 1989 (Cth)

Child Support (Registration and Collection) Act 1988 (Cth)

Civil Law and Justice Legislation Amendment Act 2018 (Cth)

Family Law Act 1975 (Cth)

Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth)

Social Security (Administration) Act 1999 (Cth)

Federal Circuit Court Rules 2001 (Cth)

Commonwealth Powers (De Facto Relationships) Act 2003 (NSW)

Property (Relationships) Act 1984 (NSW)

Cases cited:
Aon Risk Service Australia Ltd v Australian National University (2009) 239 CLR 175

Fairbairn & Radecki [2022] HCA 18

In the Marriage of Dawes (1989) 98 FLR 375

In the Marriage of Elias (1977) FLC 90-267

In the Marriage of Grayden (2003) 175 FLR 265

Jones v Dunkel (1959) 101 CLR 298

JPDJ v DADJ [2005] FMCAfam 86

Nelson v Nelson (1995) 184 CLR 538

Tang & Vo [2016] FCCA 880

Division: Division 2 Family Law

Number of paragraphs: 199

Date of last submission/s: 25 January 2021

Date of hearing: 3 September 2020, 4 September 2020, 15 October 2020

Place: Sydney

Counsel for the Applicant: Mr White

Solicitor for the Applicant: Di Lizio & Associates

The Respondent: The Respondent appeared on his own behalf
ORDERS

SYC 5080 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS EDEN

Applicant

AND:
MR EDEN

Respondent

ORDER MADE BY:

JUDGE MORLEY

DATE OF ORDER:

8 JULY 2022

THE COURT ORDERS THAT:
1.The Initiating Application filed by the Applicant Ms Eden on 7 August 2017 is dismissed.
2.Any Application in a Proceeding seeking an order in relation to costs of the proceedings is to be filed and served together with an affidavit in support and in compliance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) by not later than 4:00PM on 5 August 2022.
3.Any affidavit in support of any Application in a Proceeding filed on the issue of costs in compliance with these orders must include particulars of the quantum of costs claimed and how same is calculated.
4.Any Application in a Proceeding filed in compliance with these orders on the issue of cost, together with any Response to Application in a Proceeding responding thereto, will be considered in Chambers and directions will be made for the filing and serving…

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 Eden & Eden

Details

AGLC: Eden & Eden [2022] FedCFamC2F 891
Case: [2022] FedCFamC2F 891
Decision Date

CaseChat Overview and Summary

This case involves a property settlement dispute between Ms Eden and Mr Eden, who were in a de facto relationship from 1989 until they separated on 22 November 2007. Ms Eden commenced proceedings under section 90SM of the Family Law Act 1975 (Cth) seeking an order altering the interests of the parties in property. The key legal issue was whether the Court had jurisdiction to hear the matter, given that the de facto relationship had broken down before the referral of powers to the Commonwealth to deal with property settlement matters arising from de facto relationships. The Court found that the de facto relationship had broken down on 22 November 2007 and was never resumed, and therefore the Court had no jurisdiction to hear the matter under section 90SM of the Family Law Act. The Court dismissed the Applicant's application.

Orders