Hamblin & Dahl - [2010] FMCAfam 514

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HAMBLIN & DAHL

[2010] FMCAfam 514

FAMILY LAW – Property – de facto relationship – jurisdiction – length of relationship – aggregation of periods of relationship.

WORDS & PHRASES – “total of the periods….of the relationship” s.90SB(a).

Family Law Act 1975, ss.4AA, 90RD, 90SB(a)
Family Court Act 1997, s.205Z

L and C [2005] FCWA 23; (2006)DFC 95-327
Cody v JH Nelson Pty Ltd (1947) 74 CLR 629
Bull v Attorney-General (NSW) (1913) 17 CLR 370

Applicant:

MS HAMBLIN

Respondent:

MS DAHL

File Number:

LEC 108 of 2010

Judgment of:

Demack FM

Hearing date:

18 May 2010

Date of Last Submission:

18 May 2010

Delivered at:

Brisbane

Delivered on:

24 May 2010

REPRESENTATION

Counsel for the Applicant:

Ms McDiarmid

Solicitors for the Applicant:

GJ Legal Solicitors

Counsel for the Respondent:

Mr Gordon

Solicitors for the Respondent:

BL Crane & Associates

ORDERS

That pursuant to s.90RD(1) of the Family Law Act, it is declared that a de facto relationship of at least two years existed between the Applicant and the Respondent.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

LEC 108 of 2010

MS HAMBLIN

Applicant

And

MS DAHL

Respondent

REASONS FOR JUDGMENT

Between March 1994 and December 1998, and then again between April 2008 and October 2009, the applicant and the respondent were in a de facto relationship. They disagree how they should categorise their relationship for the in-between years, other than from May 2006 to April 2008 when they agree that the applicant was in a de facto relationship with another person.
The parties disagree as to whether the Court’s jurisdiction is enlivened.
The relevant section of the Family Law Act 1975 reads s.90SB(a):
A court may make an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL, in relation to a de facto relationship only if the court is satisfied:
a) that the period, or the total of the periods, of the de facto relationship is at least 2 years;…

The applicant’s argument

In the absence of any qualification contained in the relevant provisions, the words “…that… the total of the periods… is at least 2 years” must be given their plain meaning. Any other outcome than the one sought by the applicant is a nonsense. The first and second periods of the de facto relationship were with the same person.
These amendments to the Family Law Act 1975 (“the Act”) were clearly drawn to ensure that all classes of de facto relationships would be included and to provide for access to the full range of property adjustments that married couples had long had access to.
The fact that the applicant had formed a de facto relationship with another person is of no moment in determining this question of jurisdiction. The Act contemplates two de facto relationships occurring concurrently.[1]

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 Hamblin & Dahl

Details

AGLC: Hamblin & Dahl [2010] FMCAfam 514
Case: [2010] FMCAfam 514
Decision Date: 24 May 2010

CaseChat Overview and Summary

Hamblin & Dahl was a case heard by the Family Court of Australia, which sought to determine whether a de facto relationship existed between the Applicant and the Respondent for the purposes of property settlement. The Applicant argued that the relationship met the criteria for a de facto relationship under the Family Law Act, including the requirement of a relationship of at least two years. The Respondent contested the existence of such a relationship.

The primary legal issue before the court was whether the periods during which the Applicant and Respondent cohabitated could be aggregated to meet the two-year requirement for a de facto relationship. This hinged on the interpretation of the phrase "total of the periods" as used in section 90SB(a) of the Family Law Act. The court needed to determine whether periods of cohabitation could be counted cumulatively or whether each period of cohabitation had to be distinct and continuous.

The court examined the legislative intent behind section 90SB(a) and held that the phrase "total of the periods" allowed for the aggregation of periods of relationship. The court found that the relationship between the Applicant and the Respondent met the two-year requirement when considering the cumulative periods of cohabitation. The court was satisfied that the Applicant and Respondent had been in a de facto relationship for the requisite duration, and thus, a declaration under section 90RD(1) was made.

Orders

Orders of the court

That pursuant to s.90RD(1) of the Family Law Act, it is declared that a de facto relationship of at least two years existed between the Applicant and the Respondent.

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

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