HARRELL & NESLAND

[2014] FCCA 1921

FEDERAL CIRCUIT COURT OF AUSTRALIA

HARRELL & NESLAND [2014] FCCA 1921

Catchwords:
FAMILY LAW – Property – dispute as to when de facto relationship ceased – whether de facto relationship finally broke down before 1 March, 2009 – where de facto relationship did not finally breakdown before 1 March, 2009.

Legislation:

Family Law Act 1975, ss.4AA, 4AA(b) 90RD

Fenton & Marvel [2013] FamCAFC 132
Hibberson v George (1989) 12 FamLR 725
S & B [2005] 1 Qd R 537

Applicant: MS HARRELL

Respondent: MR NESLAND

File Number: BRG 6489 of 2012

Judgment of: Judge Jarrett

Hearing date: 23 April 2013

Date of Last Submission: 23 April 2013

Delivered at: Brisbane

Delivered on: 26 August 2014

REPRESENTATION

Counsel for the Applicant: Ms Pendergast

Solicitors for the Applicant: Matthew Love Solicitors

Counsel for the Respondent: Mr Kirk SC

Solicitors for the Respondent: Hirst & Co.

ORDERS

THE COURT DECLARES:

1. Pursuant to ss.90RD(1) and (2) of the Family Law Act1975, that:

   (a)a de facto relationship existed between the parties;

   (b)such relationship commenced in (omitted) 1997; and

   (c)such relationship did not finally breakdown before 1 March, 2009.

2. The proceedings be listed for further directions at 9:30am on 30 September 2014.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT BRISBANE

BRG 6489 of 2012

MS HARRELL

Applicant

And

MR NESLAND

Respondent

REASONS FOR JUDGMENT

1. The applicant filed an application for property adjustment and spouse maintenance orders on 19 July, 2012.  She contends that she and the respondent were in a de facto relationship that ceased on 23 May, 2012.

2. The respondent filed a response on 15 October, 2012 wherein he seeks the dismissal of the application on the ground that the parties’ de facto relationship ceased before 1 March, 2009.  An alternate ground (which is no longer pressed) is that Australia is a wholly inappropriate forum for these proceedings.  He says that if the Court so finds, the Court is without jurisdiction to hear and determine the application.   

3. The parties agreed to the Court determining, as a preliminary issue, whether the Court had jurisdiction to entertain the wife’s application.  For that purpose, the parties defined the “jurisdictional issue” to be determined by the Court as “the issue whether their de facto relationship existed on or after 1 March 2009”.  The Court made orders in those terms.

4. The parties each submit that the matter which requires the Court’s determination is whether a de facto relationship existed between the parties on or after 1 March, 2009.

5. After the trial was conducted in this matter and judgment was reserved, the Full Court of the Family Court of Australia delivered judgment in Fenton & Marvel [2013] FamCAFC 132. In that case, Murphy J explained the circumstances in which federal courts such as the Family Court of Australia and the Federal Circuit Court of Australia have come to be invested with jurisdiction…