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 of 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

1. 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 

1. 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.

2. 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.

3. 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).

4. The question before me is whether the Court has jurisdiction to make an interim order…