GADSDEN & VIZE

[2015] FCCA 885

FEDERAL CIRCUIT COURT OF AUSTRALIA

GADSDEN & VIZE [2015] FCCA 885

Catchwords:
FAMILY LAW – Jurisdictional pre-requisite of de facto relationship – parties maintain separate residences – whether relationship exists-requirement by state welfare authority for the Applicant to be present – features of living together on a genuine domestic basis not present.

Legislation:

Family Law Act 1975, ss.90RD, 90B, 90G(1C), 90RD(2)(a), 90RD(2)(d), 90RD(2)(e), 68L(2), 91B, 4AA(1), 4AA(2), 4AA(4)

Federal Circuit Court Rules 2001, rr.13.10(a), 15.04(3)(b)

Evidence Act 1995 (Cth), ss.4(1), 140

Jonah and White [2011] FamCA 221
Moby and Schulter [2010] FamCA 748
Simonis v Perpetual Trustee Co. Limited (1987) DFC 95-052

Applicant: MR GADSDEN

Respondent: MS VIZE

File Number: MLC 2835 of 2014

Judgment of: Judge Stewart

Hearing dates: 15 & 16 December 2014

Date of Last Submission: 16 December 2014

Delivered at: Melbourne

Delivered on: 13 April 2015

REPRESENTATION

Counsel for the Applicant: Mr Stanley

Solicitors for the Applicant: Waters Lawyers Pty Ltd

Counsel for the Respondent: Mr Goddard

Solicitors for the Respondent: Portelli & Co

ORDERS

1. The application of the Respondent for a declaration pursuant to section 90RD of the Family Law Act 1975 be and is hereby dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 2835 of 2014

MR GADSDEN

Applicant

And

MS VIZE

Respondent

REASONS FOR JUDGMENT

1. These are proceedings relating to the existence of a de facto relationship between the Applicant and the Respondent.

2. The substantive proceedings were initiated by the Applicant on 4 April 2014 when he sought parenting orders in relation to the parties two children X born (omitted) 2007 and Y born (omitted) 2008.

3. The Respondent Wife responded to the Husband’s Initiating Application seeking both parenting and property orders.

4. On 22 August 2014 the Husband filed an Application in a Case seeking, pursuant to Regulation 13.10(a) of the Federal Circuit Court Rules2001, that the Respondent’s application for property orders be dismissed and the Wife pay the Husband’s costs for such application.

5. Subsequently the Wife filed a response seeking that the Husband’s Application in a Case be dismissed and that he pay the Wife’s associated costs.

Background

1. The Applicant was born in (country omitted) on (omitted) 1967 and is currently aged 46. The Respondent was born on (omitted) 1972 and is 41 years of age.

2. It is agreed between the parties that the met via the internet in 2006.

3. The Applicant maintains that the parties have never lived together on a genuine domestic relationship.

4. The Respondent maintains that the parties commenced a de facto relationship in (omitted) 2006, which broke down in December 2013.

5. It is agreed between the parties that they have had a relationship. 

6. It is agreed between the parties that their relationship has produced two children:-

   a)X, born on (omitted) 2007 and now aged 8 years; and

   b)Y, born on (omitted) 2008 and now aged 7 years.

7. The…