Gates and Gates - [2013] FamCA 798

FAMILY COURT OF AUSTRALIA

GATES & GATES

[2013] FamCA 798

FAMILY LAW – JURISDICTION – Family law – disputed date of final breakdown of de facto relationship – whether there is jurisdiction to make interim orders where there is a dispute about the date the relationship ended to be determined at trial – no jurisdiction to make interim orders where there is a serious issue to be tried which has the potential to result in a lack of jurisdiction.

DMW & Anor v CGW (1982) 151 CLR 491
Fenton & Marvel [2013] FamCAFC 132
Moby & Shulter [2009] FamCA 1285
Re Ross-Jones; Ex parte Green (1984) 156 CLR 185
Ting & Fingal [2013] FamCA 29
Yunghanns & Ors & Yunghanns & Ors & Yunghanns (1999) FLC 92-836

Family Law Act 1975 (Cth), ss 4, 4AA, 39B, 44, 90RH, 90RD, 90SB, 90SE.
Family Law Amendment (De facto Financial Matters and Other Measures) Act 2008 (Cth), ss 86(1) and 86A of Schedule 1 Part 2 Division 2.

APPLICANT:

Ms Gates

RESPONDENT:

Mr Gates

FILE NUMBER:

MLC

8000

2013

DATE DELIVERED:

18 October 2013

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Thornton J

HEARING DATE:

7 October 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Sweeney

SOLICITOR FOR THE APPLICANT:

Landers & Rogers

COUNSEL FOR THE RESPONDENT:

Mr St John SC

SOLICITOR FOR THE RESPONDENT:

Gates Legal

Orders

The interim application for maintenance of the applicant is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gates & Gates has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8000 of 2013

Ms Gates

Applicant

And

Mr Gates

Respondent

REASONS FOR JUDGMENT

Introduction

On 18 September 2013 the applicant filed an Initiating Application for de facto financial relief seeking, amongst other things, orders for maintenance for herself and the alteration of property interests between the parties to a de facto relationship.
The respondent seeks a declaration pursuant to s 90RD(2)(d) of the Family Law Act 1975 (Cth) (“the Act”) that the de facto relationship between the parties finally broke down before 1 March 2009.
The significance of the date of the end of the de facto relationship is that unless the parties by consent opt in to the jurisdiction under s 86A(1) of the Family Law Amendment (De facto Financial Matters and Other Measures) Act 2008 (Cth), there is no jurisdiction in the Family Court to entertain an application for de facto financial relief where the de facto relationship ended prior to

1 March 2009.[1] There is jurisdiction in the state courts for de facto financial relief where the de facto relationship ended prior to 1 March 2009.
[1] Section 86(1) of Schedule 1 Part 2 Division 2 of the Family Law Amendment (De facto financial matters and other measures) Act 2008 (Cth).
The question before me is whether the Court has jurisdiction to make an interim order for maintenance where the respondent disputes the jurisdiction of the Court to make an order for de facto financial relief between the parties on the basis of a de facto financial relationship under s 4AA of the Act.
It has also been asserted by the respondent that the Initiating Application has not been made within two years of the end of the de facto relationship as required by s 44(5) of the Act.
The issue whether the Court has jurisdiction to make interim orders for maintenance for the applicant, in these circumstances where jurisdiction is in issue, was argued before me in legal submissions by Counsel for the parties. Written outlines of argument had been filed before the hearing.

Background

It is common ground between the parties that they had a de facto relationship and that there is an adult child of that relationship. The applicant deposes in her affidavit filed 18 September 2013 that the relationship commenced in 1985 and the respondent deposes that the relationship commenced on 1 December 1987.
The child of the relationship, Ms B, was born in 1987.
The applicant asserts in her affidavit filed 18 September 2013 that Ms B has received a scholarship to attend the D School where she has already completed her first year. It is a two year course and the second year of the scholarship commenced on 17 September 2013. An application has been made for adult child maintenance for Ms B by the applicant which will be the subject of a separate hearing. The respondent does not take any jurisdictional issue in respect of that application.

Substantive application

Both parties accepted that the authorities establish that the Court has jurisdiction “to determine whether or not there are sufficient facts upon which jurisdiction depends” relying on the decision of Re Ross-Jones; Ex parte Green (1984) 156 CLR 185 (“Re Ross-Jones”). Although the applicant’s application has not yet been fixed for trial, it is anticipated that there will be a lengthy hearing on the facts to determine when the de facto relationship finally broke down. This is the jurisdictional fact upon which a determination is to be made in the trial when all the evidence is before the Court. It was foreshadowed that further affidavit material about these facts will be filed before the matter is fixed for trial.

Evidence of the applicant

In her affidavit filed 18 September 2013, the applicant deposes that the parties resided together continually since 1985 “save and except for a period from approximately May 2010 until May 2013”.[2] She deposes that she lived with the respondent at their primary residence of E Street, Suburb F, and that the respondent returned to live at those premises in May 2013 due to what he called his “poor health”. She also deposes that from May 2010 until May 2013 the respondent moved into separate accommodation with his girlfriend.
[2] Affidavit of the applicant filed 18 September 2013 at paragraph 6.
The applicant asserts that despite the period in which the respondent did not live in the E Street premises:
… in all other respects our relationship continued in respect of its financial aspects. In this period, the respondent would generally live at the [E Street] property on the weekends before returning to live with his girlfriend during the week.[3]
[3] Affidavit of the applicant filed 18 September 2013 at paragraph 6.
In her affidavit filed 3 October 2013, the applicant asserts that the relationship broke down in May 2010 but that she had confronted the respondent in October 2009 with what she believed to be a relationship that he had commenced with another woman. She asserts that it was then that the respondent told her that he had been in a relationship for three years with another woman and the applicant was devastated.
At paragraph 6 of her affidavit filed 3 October 2013, the applicant deposes that the respondent returned to the E Street property in 2013 when he alleged that he was in “poor health” and “[o]ur life continued as before. I cooked our meals, did the housework and other errands, and made the respondent vegetable juices each morning, which he had been advised to take for the benefit of his health”.
The respondent has suggested in his affidavit filed 30 September 2013, that the applicant is employed in small business. At paragraph 11 of her affidavit filed 3 October 2013, the applicant deposes in response that she does not work, does not receive an income or any travel benefits as an employee and that the respondent still claims her as his “spouse” for income tax purposes.
In the same affidavit, the applicant asserts that there was no separation under the one roof and:
I washed his clothes, picked up and dropped off his dry cleaning, did the daily housework, purchased our food and household needs, maintained the property with the respondent, and our finances, although controlled by the respondent, were as far as I was concerned, ours.[4]
[4] Affidavit of the applicant filed 3 October 2013 at paragraph 4(e).

Evidence of the respondent

The respondent does not dispute that the parties were in a de facto relationship but asserts that cohabitation commenced on 1 December 1987 when the parties jointly occupied rented premises in Suburb G. He deposes that in addition to the child of the relationship, Ms B, the applicant had custody of her two children from a previous relationship and he had custody of his three children from a previous relationship. He deposes that both parties worked very hard with the applicant caring for the children and running the home whilst he dealt with the demands of running his business and shouldering the burden of sole financial responsibility for the family.
He deposes that the property at E Street, Suburb F, was purchased in 1993 and that substantial building works were undertaken and completed during 1996. The respondent deposes that the parties took possession of the E Street property in December 1993.
At paragraph 22 of the respondent’s affidavit filed 30 September 2013, he deposes that by 2005 the relationship was in its final stages and that the applicant was threatening to move to a unit which he had purchased in August 2000 in H Street, Suburb I. He deposes that by 2006, the parties were often communicating by handwritten note and that a physical relationship between them had not existed for approximately eight years.[5]
[5] Affidavit of the respondent filed 30 September 2013 at paragraph 23.
At paragraph 24 of the respondent’s affidavit filed 30 September 2013, he deposes that it is impossible for him to say precisely when the de facto relationship ceased but “[h]owever certainly by mid-2006 we regarded ourselves as separated. I had previously told the Applicant on numerous occasions words to the effect that I regarded the relationship as having ended. She did not disagree.”
The respondent deposes that by 2006 he felt free to pursue another relationship and that during the week on occasions he stayed overnight with another person whom the applicant referred to as his ‘girlfriend’. He stated that “the Applicant was aware I was pursuing this relationship and would frequently refer to my absences from the house and ‘your girlfriend’”.[6]
[6] Affidavit of the respondent filed 30 September 2013 at paragraph 24.
The respondent deposes that the parties remained separated under the one roof since at least mid-2006.
The respondent deposes that from mid-2006 until the present time, he has not vacated the E Street property but that until May 2013 he was staying overnight at a unit in Suburb J during the working week on two to three nights.[7] He deposes that, save from sharing some meals, when at the E Street property the parties have conducted separate lives.[8]
[7] Affidavit of the respondent filed 30 September 2013 at paragraphs 25 and 46.
[8] Affidavit of the respondent filed 30 September 2013 at paragraphs 30 to 32.
The respondent disputes that the relationship initially broke down in May 2010. He maintains that he returned to the E Street property during the week in May 2013 at the request of the applicant who complained of significant security fears when he was not at home at night.
The respondent denies there was a resumption of a de facto relationship in May 2013 and maintains that there was no change to the separate households conducted at the E Street property.

Submissions for the applicant

Counsel for the applicant relied heavily upon the decision of Cronin J in

Moby & Shulter
[2009] FamCA 1285 (“Moby & Shulter”) where his Honour stated at paragraphs 2 and 3:
One of the difficulties with the application is that it is not clear whether or not a court can deal with an urgent application when there is a jurisdictional dispute.
I propose in this case to deal with it on the basis that there is sufficient evidence for me to make the necessary declaration.
In Moby & Shulter there was a dispute between the parties about whether any de facto relationship had existed and the respondent argued that even if a

de facto relationship was found to exist, that it ended well prior to 2009 and therefore there was no jurisdiction in the Family Court. This was an application which was before Cronin J as an urgent maintenance application in the duty list.
At paragraphs 7-9, his Honour stated:
In this case, a finding as to the relationship is at least open on the untested evidence because both parties have acknowledged that they had some sort of relationship, bearing in mind that s 4AA gives the court a very wide discretion to define what a relationship really means.
What I am concentrating on for the purposes of this hearing is whether or not the separation between the parties, or, in other words, the conclusion of their relationship, postdates or precedes the commencement of the legislation.
The precise date does not matter because the parties are significantly apart in respect of when they say their relationship ceased. Notwithstanding they might think the date that they say the relationship ceased was the date, it is a matter objectively for the court to determine whether the relationship ceased at a particular time.
It was submitted by the applicant relying upon this decision that it is therefore appropriate for the Court to make a declaration under s 90RD of the Act for the purposes of an interim hearing and thereafter if the evidence changed or was not accepted that the Court could vary or set aside that declaration under

s 90RH of the Act.

This section provides that if in the primary proceedings a person affected by the declaration makes an application, it can be varied, set aside and another declaration substituted. This only applies if two criteria are satisfied. Firstly, a fact or circumstance has arisen that has not previously been disclosed to the court. Secondly, if the fact or circumstance was not within the knowledge of the affected person at the time the declaration was made in the primary proceedings where they were a party.
Counsel for the applicant also referred to the decision of Ting & Fingal [2013] FamCA 29 (“Ting & Fingal”) where his Honour Cronin J determined that the Court could not make an interim order as “the power to determine jurisdiction does not in any way extend the jurisdiction of the court” and found in the circumstances of that case that there was no jurisdiction to make interim orders because there was no evidence of the existence of a de facto relationship.
Counsel for the applicant distinguished that decision on the basis that the very existence of the de facto relationship was in issue in that case, whereas in the instant case both parties accept that a lengthy de facto relationship existed.
Counsel for the applicant argued that the establishment of the de facto relationship was a non-issue and was admitted. He conceded that if there is “no de facto relationship” there can be no “de facto cause” and therefore s 39B of the Act is not satisfied in respect of jurisdiction.

Submissions for the respondent

The respondent relied heavily on the decision of the Full Court of the Family Court in Yunghanns & Ors & Yunghanns & Ors & Yunghanns (1999) FLC 92-836 (“Yunghanns”) where the principles of the High Court decisions of Re Ross-Jones and DMW & Anor v CGW (1982) 151 CLR 491 (“DMW v CGW”) were analysed.
Counsel for the respondent submitted that the decision of Cronin J in Ting & Fingal is consistent with the decision of Re Ross-Jones and that there is nothing in this decision which departs from the principles articulated by the Full Court in Yunghanns. He relied on paragraph 37 of the decision of Cronin J in Ting & Fingal where his Honour stated that because there was no agreement between the parties as to the nature of their relationship, without a testing of the evidence, his Honour was unable to determine whether there was sufficient evidence of a domestic relationship and accordingly the application was beyond jurisdiction.
Counsel for the respondent also relied upon the imprecise nature of the applicant’s evidence in the case, having regard to the lack of specificity in her affidavit filed 18 September 2013. He emphasised that in the Initiating Application there is no indication that the respondent is a party to a de facto relationship, that the relationship has broken down or that there is a final date of separation.
Counsel for the respondent submitted that the Response to the applicant’s Initiating Application filed 30 September 2013 describes the respondent as being a party to a de facto relationship that has broken down and asserts final separation commenced prior to 1 March 2009.
In summary, responding to the submission for the applicant regarding the decision of Moby v Schulter, Counsel for the respondent submitted that :
·It is a decision made on the basis of unique factual circumstances where the parties had agreed on interim orders.
·The decision does not purport to overturn the law.
·The case should be confined to its facts which are distinguishable.

Jurisdiction

Section 39B(1) of the Act confers jurisdiction on the Family Court with respect to matters arising under the Act for a de facto financial cause instituted under the Act.
Section 4 of the Act defines the term “de facto financial cause” to mean proceedings between the parties to a de facto relationship with respect to the maintenance of one of them after the breakdown of a de facto relationship or, relevantly, proceedings between them with respect to the distribution, after the breakdown of a de facto relationship, of the property of the parties or either of them.
Section 4AA of the Act defines the meaning of “de facto relationship”. There is no issue between the parties here that a de facto relationship existed. What is in issue are the facts about when that relationship finally broke down.
The applicant’s affidavit filed 18 September 2013 does not disclose a clear date when it is asserted the de facto relationship broke down. At paragraph 18 of the applicant’s affidavit filed 18 September 2013, she states “Now that I have decided to separate” and, although not expressly stated, the affidavit suggests that it is asserted that there was a resumption of the de facto relationship with the return of the respondent to the E Street property in May 2013.
The applicant’s Initiating Application filed 18 September 2013 does not specify a date of final separation or that the de facto relationship has broken down.
At paragraph 16 and 19 of the respondent’s affidavit filed 30 September 2013, he describes himself as being a party to a de facto relationship that has broken down and asserts final separation commenced prior to 1 March 2009.
In the respondent’s affidavit filed 30 September 2013, he deposes that final separation between the parties “under the one roof” commenced at a date not later than mid-2006.[9]
[9] Affidavit of the respondent filed 30 September 2013 at paragraphs 22 to 25 and 30 to 32.
The respondent denies that there has been any resumption of a de facto relationship since that separation. He also denies that there has been any change in the relationship in or around May 2010 in response to the assertion in the applicant’s affidavit. He denies that there was a resumption of the de facto relationship in May 2013 and maintains that there was no change to the separate households at the E Street property.
Accordingly, there is a clear dispute between the parties about the date that the de facto relationship finally broke down. Further material is to be filed but at this stage it is not possible to determine the facts surrounding the final breakdown of the relationship.
It is not in dispute between the parties and it is clear that this Court has jurisdiction to determine whether or not there are sufficient facts upon which jurisdiction depends[10] per Brennan J in Re Ross-Jones:
Where the substantive jurisdiction of the court depends upon facts, the court may find the facts — and find them judicially — in the exercise of its jurisdiction to determine the extent of its substantive jurisdiction.
[10] Re Ross-Jones; Ex parte Green (1984) 156 CLR 185.

If the respondent’s evidence were accepted, a potential outcome of the substantive proceedings is a finding that the de facto relationship finally broke down prior to 1 March 2009. Consequently there would be no jurisdiction capable of being exercised under s 39B of the Act.
Wilson and Dawson JJ stated in Re Ross-Jones:
The power to determine the existence of jurisdictional facts is not a power which in any way extends the jurisdiction of the Court. If a matter is beyond the jurisdiction of a court, it cannot be brought within jurisdiction for the purpose of granting interlocutory relief. That proposition appears to us, with all respect, to be self-evident and decisive.[11]
[11] Re Ross-Jones; Ex parte Green (1984) 156 CLR 185 at paragraph 213.
Wilson and Dawson JJ went on to state that the circumstances in which a court may grant interlocutory relief upon satisfaction of a prima facie case that jurisdiction exists are limited and essentially confined to urgent cases where “the circumstances point compellingly to a need to preserve the status quo as an interim measure pending a hearing to determine whether interlocutory relief should be granted.”[12]
[12] Re Ross-Jones; Ex parte Green (1984) 156 CLR 185 at paragraph 213.
In Yunghanns, the Full Court of the Family Court at paragraph 109 summarised the essential principles arising from the decisions of the High Court in Re
Ross-Jones and DMW v CGW and stated:
(1) Before making orders in proceedings (including interlocutory orders) the Family Court of Australia, as a court of limited jurisdiction, must be satisfied:
(a) that it has jurisdiction to make those orders in the proceedings; and
(b) that it is appropriate to exercise that jurisdiction by making those orders on the facts of the case as then known to it.
(2) The Court always has jurisdiction to entertain proceedings for the purpose of and up to the point of deciding whether it has jurisdiction to make the orders sought in the proceedings.
(3)In carrying out that limited exercise of jurisdiction, the Court is required to determine any essential facts upon which the existence of its jurisdiction to make the orders sought ultimately depends (“the jurisdictional fact”'). That determination is a function which is incidental to the exercise of the jurisdiction referred to in (2) above.
(4) Where, from the very nature of the proceedings and the relief claimed, the substantive proceedings prima facie fall within the definition of “matrimonial cause” in s 4(1) of the Act, the jurisdiction to determine the jurisdictional facts, as an incident of determining whether it has jurisdiction to make the orders, is itself a matrimonial cause, and therefore within the exclusive jurisdiction of the Court.
(5) There is a distinction between the jurisdictional facts, as defined under (3), above, and the facts the existence of which it is necessary to establish in order to entitle the applicant (subject to discretionary considerations) to an exercise in his or her favour of the jurisdiction which the Court has (“the adjudicational facts”).
(6) Once a respondent challenges the Court's jurisdiction to make the orders sought, the Court, before considering the adjudicational facts, must find the existence of the jurisdictional facts, on the balance of probabilities.
(7) However, once that threshold of jurisdiction is crossed, in the case of interlocutory proceedings (at least where what is sought is an injunction in the same or similar terms to the permanent injunction sought in the substantive proceedings) the Court, before making an order, does not need to find the existence of the adjudicational facts, but only that there is a serious issue to be tried as to their existence, and that the balance of convenience supports the making of the order: American Cyanamid v Ethicon Ltd (1975) AC 369; Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 46 ALR 398; Tableland Peanuts Pty Ltd v Peanut Marketing Board (1984) 52 ALR 651; and Epitoma Pty Ltd v Australian Meat Industry Employees’ Union and Ors (No 2) (1984) 54 ALR 730.
(8) The only circumstance in which the Court may proceed to make orders, despite a challenge to its jurisdiction so to do, and before it has found the existence of the jurisdictional facts, is that referred to by Gibbs CJ in R v Ross-Jones; Ex parte Green (supra) at FLC 79,488; CLR 202, namely when it is considered necessary to make holding orders to maintain the status quo pending its determination (with “the utmost urgency”) of whether it does have jurisdiction.
The Court went on to point out that in practice it is often difficult to describe the jurisdictional facts and adjudicational facts and to identify into which category a particular fact or group of facts falls.

Conclusion

Under principle 6 before considering the adjudicational facts, I must find the existence of jurisdictional facts on the balance of probabilities. An interim hearing is necessarily confined and the evidence is untested. In this case, the jurisdictional fact of the date of the final breakdown or end of the de facto relationship is clearly in dispute between the parties and I cannot at this stage, be satisfied on the balance of probabilities of that jurisdictional fact.
I am not satisfied that in the circumstances of this application, this Court has jurisdiction to make interlocutory orders in the nature of the de facto financial relief sought or the power to make those orders under s 90RD or s 90SE of the Act for an interim order.
It has not been submitted that principle 8 of Yunghanns case is applicable here.
The parties briefly addressed me on the decision of the Full Court of the Family Court in Fenton & Marvel [2013] FamCAFC 132 (“Fenton & Marvel”). Counsel for the applicant argued that the Full Court said that to found jurisdiction it must be demonstrated by sufficient evidence that a de facto relationship subsisted at some time after 1 March 2009 but a precise date on which the relationship finally broke down does not need to established – just that there was a relationship post 1 March 2009.
Counsel for the respondent asserted that the test is not the precise date, but it is a question of whether the relationship has broken down.
Counsel for the respondent argued that following the reasoning in Fenton & Marvel, it is of no consequence if the parties separated prior to 1 March 2009 if there was a subsequent resumption of that de facto relationship. He submitted that Fenton & Marvel is relevant to and consistent with the respondent’s submission as to the lack of precision of the applicant’s case about the date the relationship finally broke down. He conceded that the relevance of Fenton & Marvel is that it is authority for the proposition that the fact that the relationship might have broken down prior to 1 March 2009 is of no consequence if the relationship subsequently resumed after 1 March 2009. He conceded that if those facts were established then jurisdiction would vest.
In Fenton & Marvel Strickland J stated at par 12-13 :
Dealing first with what is the correct test. To find jurisdiction there must be a de facto relationship which continues for at least two years (if none of paragraphs (b), (c) or (d) of s 90SB of the Family Law Act 1975 (Cth) (“the Act”) apply) and it must not have broken down finally before 1 March 2009.
Although item 86(1) of Schedule 1 Part 2 Division 2 of the Family Law Amendment (De Facto Financial Matters and Other Measures)Act 2008 (Cth) (“the Amendment Act”) provides that the Act does not apply to de facto relationships that have broken down before 1 March 2009, because s 90SB(a) allows for the aggregation of a period or periods totalling two years, and that it can include periods before and after 1 March 2009, it is necessary to talk of the de facto relationship breaking down finally before 1 March 2009 in any description of the test.
I am not satisfied that the Court has jurisdiction or power to make the interlocutory orders sought by the applicant pending a determination of whether there is a de facto financial cause. The question of the date of the final breakdown of the de facto relationship is a serious issue to be tried and determined on the facts.
As Cronin J pointed out in the decision of Ting & Fingal, “a court should be careful in an interim hearing to ensure that an injustice cannot be rectified later”.[13] Despite the fact that a declaration can be set aside if the court is satisfied that a fact or circumstance has arisen that had not previously been disclosed to the court, provided that the fact or circumstance was not within the person’s knowledge at the time the declaration was made, I do not consider it appropriate that interim orders be made where the facts which are sought to found the declaration are contested and controversial.
[13] Ting & Fingal [2013] FamCA 29 at paragraph 18.
In Ting & Fingal, Cronin J was not satisfied on an interim basis and without the evidence being tested that the parties lived together on a genuine domestic basis. His Honour was not satisfied that there was sufficient evidence of a domestic relationship existing between the parties or that they were living as a couple. Accordingly, his Honour found that the application for spousal maintenance was beyond jurisdiction. Notwithstanding the invitation of the applicant to distinguish that decision on the basis that there was no jurisdiction because the existence of a de facto relationship could not be found, as opposed to this case where a de facto relationship is not disputed, I cannot accept that argument.
The applicant relied heavily on the decision of Cronin J in Moby & Schulter.
In that case, his Honour was satisfied for the purposes of the exercise on that day:
limited as it is, that there is sufficient evidence for me to find that there was a de facto relationship and that because of the interdependence upon one another, or certainly on the basis of dependence by the applicant upon the respondent up and until some time in 2009, a declaration can be made that the parties were in a de facto relationship up until early November 2009. That, in my view, is sufficient to give rise to the jurisdiction for the court to make an order for urgent maintenance.[14]
[14] Moby & Schulter [2009] FamCA 1285 at paragraph 14.
On the untested facts of the case before me, I am not satisfied that there is sufficient evidence to find that the de facto relationship finally broke down after the relevant date in the legislation of 1 March 2009.
Accordingly following the authorities of Yunghanns and Re Ross-Jones I am not satisfied that there is jurisdiction to entertain an interim application for maintenance of the applicant as one of the parties to the de facto relationship.
I do not address the issue of leave under s 44(6) of the Act to make an application for maintenance outside the time period[15] because this is not relevant unless jurisdiction is satisfied.
[15] Section 44(5) of the Family Law Act 1975 (Cth) specified “within the period of two years after the end of the de facto relationship”.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 18 October 2013

Associate:

Date: 18 October 2013