Herford and Berke

[2018] FCCA 3593

FEDERAL CIRCUIT COURT OF AUSTRALIA

HERFORD & BERKE [2018] FCCA 3593

Catchwords:
FAMILY LAW– The Family Law Act 1975 (Cth) and related legislation – Jurisdiction – De facto relationships – whether the de facto relationship broke down finally before 1 March 2009.

Legislation:

Family Law Act 1975, s.4AA

Cases cited:

Fenton & Marvel (2013) 51 Fam LR 142
Hibberson v George (1989) 12 Fam LR 725
S & B [2005] 1 Qd R 537

Jonah & White (2011) 45 Fam LR 460

Applicant: MS HERFORD

Respondent: MR BERKE

File Number: BRC 3295 of 2017

Judgment of: Judge Jarrett

Hearing dates: 17 and 18 August 2017

Date of Last Submission: 18 August 2017

Delivered at: Brisbane

Delivered on: 5 December 2018

REPRESENTATION

Counsel for the Applicant: Mr Flaherty

Solicitors for the Applicant: Mullick & Associates

Counsel for the Respondent: Ms McMillian QC

Solicitors for the Respondent: Hopgood Ganim Lawyers

ORDERS

THE COURT DECLARES THAT:

1. The de facto relationship that subsisted between the applicant and the respondent finally broke down before one March 2009.

THE COURT ORDERS THAT:

1. The application filed on 5 April 2017 dismissed.

2. Subject to any submissions from either party to be made in writing within seven (7) days of the delivery of this judgment, direct that:

   (a)by the date no more than twenty-one (21) days after the delivery of these orders, any application for costs be notified by one party to the other by the filing and service of written submissions specifying:

   (i)     the precise orders for costs sought and any alternatives;

   (ii)    the argument in support of each order; and

   (iii)whether that party is desirous of any oral hearing of the costs issue; and

   (b)by the date no more than forty-two (42) days after the delivery of these orders, the respondent to any such application shall file and serve written submissions specifying:

   (i)     the precise orders sought by the respondent;

   (ii)    the argument in support of the response; and

   (iii)whether that party is desirous of any oral hearing of the costs issue.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 3295 of 2017

MS HERFORD

Applicant

And

MR BERKE

Respondent

REASONS FOR JUDGMENT

1. The applicant filed an application for what appears to be property adjustment orders on 5 April 2017 although it is not entirely apparent whether some, or all, of the relief that she seeks is sought by way of maintenance.  Ms Herford seeks orders that Mr Berke pay her the sum of $100,000, transfer to her his interest in a certain property at Town A, discharge any mortgages secured thereof and otherwise retain all assets in their sole name and possession.

2. The applicant contends that she and the respondent were in a de facto relationship that commenced in about 2002 and ceased in November 2015.  She argues that the Court’s jurisdiction to make the types of orders provided…