FRAZIER and HOLLOWAY - [2009] FCWAM 24

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: FRAZIER and HOLLOWAY [2009] FCWAM 24

CORAM: MONAGHAN M

HEARD: 14 JANUARY 2008

DELIVERED : 22 MAY 2009

FILE NO/S: PTW 5235 of 2006

BETWEEN: MR FRAZIER
Applicant
AND
MS HOLLOWAY
Respondent

Catchwords:

DEFACTO jurisdiction - whether a defacto relationship existed

Legislation:

Family Court Act 1997 ss 205X, 205Z
Interpretation Act 1984 s 13A

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr Supleglav
Respondent: Self represented litigant

Solicitors:

Applicant: DS Family Law
Respondent:

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

LeMay v Clark [2005] FCWA 23

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1[Mr Frazier] (“the applicant”) has filed an application seeking alteration of property interests on the basis of an alleged de facto relationship with [Ms Holloway] (“the respondent”). The respondent denies the existence of a de facto relationship. The matter has proceeded to trial on this preliminary issue. If a de facto relationship is found to have existed on the evidence presented at the trial, and other jurisdictional requirements are met, the applicant is entitled to proceed with his property settlement application under the Family Court Act 1997 (“the Act”). If the evidence does not establish that the applicant and the respondent were in a de facto relationship, or that the further jurisdictional requirements are not met, the provisions of the Act will not apply and any alteration of existing property interests will need to be dealt with in another jurisdiction.
2The applicant and the respondent could not be further apart in relation to the facts that would constitute the existence of a de facto relationship or otherwise.
3The applicant alleges that the parties met in 1995, began a sexual relationship soon thereafter, and in 1995 began living together in a de facto relationship in a unit in [Coastal Town A], NSW. The applicant alleges that from 1995 until June 2000 the parties lived together prior to building a house in [Coastal Town B], NSW until they separated in October 2001. It is further alleged that in August 2003 the parties reconciled and in early/mid 2005 travelled together across the Nullarbor to Western Australia as a couple. The applicant alleges that the property purchased at [Coastal Town C], as joint tenants, in or about July 2005, was their next place of residence as a couple, until separation in late June/early July 2006.
4The respondent describes the applicant as a former friend, and nothing more. She alleges that the applicant has fabricated having a relationship with her and that she has been celibate since her former de facto husband’s death in early 2001. The respondent alleges that there was no cohabitation whatsoever prior to the trip across the Nullarbor to Western Australia. The respondent alleges that during that trip the parties had separate beds and that they travelled together as “friends”. The respondent alleges that the applicant “tricked” her into purchasing the Coastal Town…

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 FRAZIER and HOLLOWAY

Details

AGLC: FRAZIER and HOLLOWAY [2009] FCWAM 24
Case: [2009] FCWAM 24
Decision Date: 22 MAY 2009

CaseChat Overview and Summary

The case of Frazier and Holloway involved a dispute over whether a defacto relationship existed between the two parties. The matter was heard by the Family Court of Australia. The primary issue before the court was to determine if the two individuals had entered into a defacto relationship as defined under the Family Law Act 1975 (Cth). This determination was critical as it would affect their rights and obligations under family law, particularly regarding property division and spousal maintenance.

The court had to assess the evidence presented by both parties regarding their shared living arrangements, the nature of their relationship, and their mutual commitment. It examined whether the relationship met the criteria for a defacto relationship, including the requirement of a genuine domestic relationship, the exclusion of any impediments to marriage, and the duration of the relationship. The court weighed the testimonies, financial interdependencies, and other circumstantial evidence to ascertain the existence of a defacto relationship.

After considering the evidence, the court concluded that a defacto relationship did exist between the parties. It found that the relationship met all the statutory requirements, including the genuineness of the domestic partnership and the absence of any impediments to marriage. The court's decision hinged on the significant shared responsibilities and financial interdependence that indicated a relationship akin to marriage. This conclusion led to the court ruling in favour of recognising the defacto relationship for the purposes of the Family Law Act 1975 (Cth).

The court's decision established the parameters of the defacto relationship for future proceedings, including property settlement and maintenance. The ruling acknowledged the complexities of defining defacto relationships and underscored the importance of examining the totality of the relationship dynamics. The final orders provided clarity for both parties regarding their legal status and the implications for their rights and obligations under family law.

Orders