Gartner and Halvorsen - [2018] FCCA 2880

FEDERAL CIRCUIT COURT OF AUSTRALIA

GARTNER & HALVORSEN

[2018] FCCA 2880

Catchwords:
FAMILY LAW – De Facto Property – Applicant seeking property settlement orders – respondent denying the existence of a de facto relationship – hearing into the discrete issue of whether a de facto relationship existed – where the applicant bears the onus of proof – where the parties did have a personal relationship but where the court cannot be satisfied that they were in a de facto relationship – declaration made that the parties were not in a de facto relationship – application for property settlement dismissed.

Legislation:

Family Law Act 1975, ss.90RD, 90SB, 90SM

Cases cited:

Owens & Benson [2014] FamCAFC 243
Briginshaw v Briginshaw (1938) 60 CLR 336

Applicant:

MR GARTNER

Respondent:

MS HALVORSEN

File Number:

NCC 2325 of 2016

Judgment of:

Judge Terry

Hearing dates:

22 & 23 June & 3 August 2017

Date of Last Submission:

3 August 2017

Delivered at:

Newcastle

Delivered on:

12 October 2018

REPRESENTATION

Counsel for the Applicant:

Mr Bithrey

Solicitors for the Applicant:

Everingham Solomons Solicitors

Counsel for the Respondent:

Mr Boyd

Solicitors for the Respondent:

Duncan & Maclean & Associates Pty Ltd

ORDERS

Pursuant to s. 90RD of the Family Law Act it is declared that a de facto relationship never existed between MR GARTNER and MS HALVORSEN.
The application filed on 1 September 2016 is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT TAMWORTH

NCC 2325 of 2016

MR GARTNER

Applicant

And

MS HALVORSEN

Respondent

REASONS FOR JUDGMENT

Introduction

On 1 September 2016, Mr Gartner filed an application seeking property settlement orders. He named Ms Halvorsen as the respondent and he alleged that he and Ms Halvorsen were in a de facto relationship from 1 June 2013 to 31 August 2015 and that the court therefore had jurisdiction to determine whether property settlement orders should be made.
Ms Halvorsen filed a response denying that the parties were ever in a de facto relationship. As a result the matter was listed for a hearing to determine the discrete issue of whether a de facto relationship existed.

The applicable law

Pursuant to s. 90RD of the Family Law Act the court can declare that a de facto relationship existed or never existed.
S.4AA(1) of the Family Law Act 1975 defines de facto relationship as follows:
A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other;
(b) the persons are not related by family; and
(c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
The applicant and respondent satisfy (a) and (b). They are not legally married to each other and they are not related by family. The issue I need to decide is whether they…

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 Gartner and Halvorsen

Details

AGLC: Gartner and Halvorsen [2018] FCCA 2880
Case: [2018] FCCA 2880
Decision Date: 12 October 2018

CaseChat Overview and Summary

In *Gartner and Halvorsen*, the Family Court of Australia was asked to determine whether a de facto relationship existed between Mr Gartner and Ms Halvorsen. The application before the court sought declarations and orders concerning the existence and nature of their relationship.

The primary legal issue before the court was whether the parties had lived together in a de facto relationship for a sufficient period to attract the operation of the *Family Law Act 1975* (Cth). This required the court to consider the duration of their association, the nature of their connection, and whether they had cohabited in a manner that constituted a de facto relationship under the Act.

Judge Terry found that while the parties had a relationship of some duration, between approximately two years and seven months and three years and three months, this period was not sufficient to establish a de facto relationship as defined by the *Family Law Act*. The court noted that the parties met in 2012 or 2013 and engaged in a sexual relationship, shared common interests, and their families met to some extent. However, significant geographical distances separated them for much of the period, and their time together was often limited to the applicant travelling on his days off or during periods of contract work. The court ultimately declared that a de facto relationship never existed between the parties.

Orders

Orders of the court

Pursuant to s. 90RD of the Family Law Act it is declared that a de facto relationship never existed between MR GARTNER and MS HALVORSEN.

The application filed on 1 September 2016 is dismissed.

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

The first of the matters in sub-section (2) is the duration of the relationship. The word relationship is used in this sub-section, not de facto relationship, and insofar as the word relationship means a connection or association the applicant and respondent had a relationship for somewhere between two years seven months and three years and three months in length. The parties met at a (hobby) event near Town A in April or May 2012. The applicant was then living and working in Queensland. His marriage of 26 years had ended in 2010 and he was not in another relationship. The respondent was living at Town A with her son [X] then aged about 6. She was also not in another relationship, her partner having died in 2012. The parties became friends and began attending (hobby) events together but it is not clear whether this was in 2012 or 2013. The applicant and Ms D said that it was in 2012 but the applicant was not a reliable witness and a number of the references to 2012 in Ms D’s affidavit were wrong because she used that date in connection with the applicant being at (employer omitted). The respondent said that the parties did not begin seeing each other until April 2013. Nothing turns on when the applicant and respondent began spending time together regularly and there was no dispute that they did commence spending time together. They shared a love of (hobby) and the applicant said and I accept, that they competed together in team events in Town A, Town B, Town C and Town D and that [X] would come along most of the time. The applicant said and I accept, that he and the respondent visited friends together and sometimes travelled together on weekends to (hobby) and there was no dispute that they commenced a sexual relationship. Members of their family met each other and there was some interaction between their families although it was never extensive. The respondent sent Ms D a message on Ms D’s daughter’s birthday in 2013. However the parties’ time together was limited until June 2013 because they lived more than 500 kilometres apart and mainly spent time together as a result of the applicant travelling down from Queensland on his days off. The respondent’s claim that they spent about 7-10 days together per month is likely to be correct. There can be no doubt that the applicant wanted to spend more time with the respondent and in June 2013, he obtained a job with (employer omitted) at Town E near (employer omitted) which is about 70 kilometres from Town B. He worked from 7am to 4pm each weekday and every third weekend and he lived on site but the parties spent time together on his days off or if the applicant visited (employer omitted). In or about August 2013 the parties began buying (hobby products) together and the applicant gave the respondent access to bank accounts in his name. I will refer later in the judgment to the evidence the parties each gave about the use of the accounts. At the end of October 2013 the applicant’s employment at (employer omitted) ceased and he moved into the respondent’s home and did contract work around Town A. However in February 2014, he obtained employment at (employer omitted) near Town F in Queensland and he again began living in Queensland which put a distance of 560 kilometres between the parties. The parties’ relationship continued however and the applicant travelled down to Town B each month and spent time with the respondent and the respondent made one or two visits of short duration to Queensland.