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 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:
The de facto relationship that subsisted between the applicant and the respondent finally broke down before one March 2009.
THE COURT ORDERS THAT:
The application filed on 5 April 2017 dismissed.
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
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.
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…
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- AGLC
- Herford and Berke [2018] FCCA 3593
- Case
- [2018] FCCA 3593
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was to determine the precise date on which the de facto relationship between the parties finally broke down. This determination was crucial for the purposes of the application filed by the applicant.
Judge Jarrett declared that the de facto relationship between the applicant and the respondent finally broke down before 1 March 2009. Consequently, the application filed on 5 April 2017 was dismissed. The court also provided directions regarding the notification and submission of any applications for costs by either party.
Orders
Orders of the court
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:
2.
The application filed on 5 April 2017 dismissed.
3.
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.
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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