ELDEN & JACOBS - [2020] FCCA 2252

FEDERAL CIRCUIT COURT OF AUSTRALIA

ELDEN & JACOBS

[2020] FCCA 2252

Catchwords:
FAMILY LAW – Property – declaration sought under section 90RD of the Family Law Act 1975 (Cth).

Legislation:

Family Law Act 1975 (Cth), ss.4, 4AA, 39B,90RD, 90SM

Evidence Act 1995 (Cth), s.140(1)

Cases cited:

Ricci v Jones [2011] FamCAFC 222

S v B (No 2) (2004) 32 Fam LR 429

Cadman & Hallett (2014) FLC 93-603

Aitken v Deakin [2010] FMCAfam 35

Todd & Todd (No. 2) (1976) 1 Fam LR 11186

Falk & Falk (1977) 3 Fam LR 11238

Pavey and Pavey (1976) FLC 90 – 051

Wren v Emmett Contractors Pty Ltd (1969) 43 ALJR 213

Lynam v DG of Social Security (1983) 52 ALR 128

Applicant:

MS ELDEN

Respondent:

MR JACOBS

File Number:

BRC 13206 of 2019

Judgment of:

Judge Tonkin

Hearing date:

13 July 2020

Date of Last Submission:

13 July 2020

Delivered at:

Brisbane

Delivered on:

13 August 2020

REPRESENTATION

Counsel for the Applicant:

Ms Barnes

Solicitors for the Applicant:

Nita Stratton-Funk & Associates

Counsel for the Respondent:

Mr Bunning

Solicitors for the Respondent:

JMW Legal

ORDERS

Pursuant to section 90RD of the Family Law Act 1975 (Cth) (“the Act”) it is DECLARED that a de facto relationship existed between MS ELDEN and MR JACOBS between 2006 and July 2009 save for a period of about 6 months in 2007 and save for a few months from December 2008.
It is declared that the parties’ de facto relationship extended for a period of about 3 years between 2006 and July 2009.
It is declared pursuant to section 90RD (1) (b) of the Family Law Act that no de facto relationship existed between the parties in 2010 and thereafter.
The application for leave to extend time to commence property proceedings is listed for mention on 15 October 2020 at 9:30am in the Federal Circuit Court of Australia at Brisbane.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 13206 of 2019

MS ELDEN

Applicant

And

MR JACOBS

Respondent

REASONS FOR JUDGMENT

Introduction

The applicant de facto wife commenced proceedings on 4 November 2019 by filing an application seeking a declaration under section 90RD of the Family Law Act that a de facto relationship existed between the parties from 2005 until 18 January 2018.[1] She sought in the alternative that leave be granted to extend time in which to bring her application for adjustment of property interests.
[1] Prior to that date the applicant filed an application for consent orders dated 31 October 2019 with respect to parenting issues.
The respondent filed a response on 24 January 2020 seeking a declaration under section 90RD (1) (b) of the Family Law Act that no de facto relationship existed between the parties after 2010. Further he sought a declaration that the applicant not be granted leave to extend time in which…

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 ELDEN & JACOBS

Details

AGLC: ELDEN & JACOBS [2020] FCCA 2252
Case: [2020] FCCA 2252
Decision Date: 13 August 2020

CaseChat Overview and Summary

In the matter of Elden & Jacobs, heard by Judge Tonkin, the dispute concerned declarations sought under section 90RD of the *Family Law Act 1975* (Cth) regarding the existence and duration of a de facto relationship between Ms Elden and Mr Jacobs.

The court was required to determine whether a de facto relationship existed between the parties, and if so, for what period. Specifically, the court needed to ascertain the precise commencement and cessation dates of any de facto relationship, considering periods of separation within the overall timeframe.

Judge Tonkin declared that a de facto relationship existed between Ms Elden and Mr Jacobs between 2006 and July 2009, with the exception of a six-month period in 2007 and a few months from December 2008. The court further declared that the parties' de facto relationship extended for approximately three years within this overall period. Crucially, it was declared that no de facto relationship existed between the parties in 2010 and thereafter. The application for leave to extend time to commence property proceedings was subsequently listed for mention.

Orders

Orders of the court

Pursuant to section 90RD of the Family Law Act 1975 (Cth) (“the Act”) it is DECLARED that a de facto relationship existed between MS ELDEN and MR JACOBS between 2006 and July 2009 save for a period of about 6 months in 2007 and save for a few months from December 2008.

It is declared that the parties’ de facto relationship extended for a period of about 3 years between 2006 and July 2009.

It is declared pursuant to section 90RD (1) (b) of the Family Law Act that no de facto relationship existed between the parties in 2010 and thereafter.

The application for leave to extend time to commence property proceedings is listed for mention on 15 October 2020 at 9:30am in the Federal Circuit Court of Australia at Brisbane.

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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