Herford & Berke (No 2)

Case [2019] FamCAFC 182


FAMILY COURT OF AUSTRALIA

HERFORD & BERKE (NO. 2) [2019] FamCAFC 182
FAMILY LAW – APPEAL – DE FACTO RELATONSHIP – Declaration that the de facto relationship finally broke down before 1 March 2009 – Application for property settlement orders dismissed – Where the parties lived under the same roof until November 2008 – Where the parties agreed that up until this point they were living in a de facto relationship –Where there is contention as to whether the parties’ de facto relationship continued after this point up until the cessation of the relationship in 2015 – Where his Honour considered the nature and character of the relationship and came to the conclusion that the relationship had changed after November 2008 and a de facto relationship no longer existed – Where the challenge as to weight is not made out – Where the conclusion was open to his Honour – Appeal dismissed – No order as to costs made.
Family Law Act 1975 (Cth) ss 4AA, 90SM(1), (3) and (4)
Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) ss 2, 86 and 86A
Cadman & Hallett (2014) FLC 93-603; [2014] FamCAFC 142
Crick & Bennett (2018) FLC 93-832; [2018] FamCAFC 68
Cuan & Kostelac (2017) FLC 93-801; [2017] FamCAFC 188
Fleming & Schmidt [2017] FamCAFC 12
Jonah & White (2012) FLC 93-522; [2012] FamCAFC 200
Jonah v White (2011) 45 Fam LR 460; [2011] FamCA 221
Lynam v Director-General of Social Security (1983) 52 ALR 128
Onslow & Onslow [2016] FamCAFC 7
Sha & Cham [2017] FamCAFC 161
Sinclair & Whittaker (2013) FLC 93-551; [2013] FamCAFC 129
APPELLANT: Ms Herford
RESPONDENT: Mr Berke
FILE NUMBER: BRC 3295 of 2017
APPEAL NUMBER: NOA 3 of 2019
DATE DELIVERED: 24 October 2019
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Ainslie-Wallace, Ryan & Aldridge JJ
HEARING DATE: 18 September 2019
LOWER COURT JURISDICTION: Federal Circuit Court of Australia
LOWER COURT JUDGMENT DATE: 5 December 2018
LOWER COURT MNC: [2018] FCCA 3593

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Coleman SC with
Mr Flaherty
SOLICITOR FOR THE APPELLANT: Mullick & Associates
COUNSEL FOR THE RESPONDENT: Mr Williams QC
SOLICITOR FOR THE RESPONDENT: Hopgood Ganim Lawyers

Orders

  1. The appeal against the orders of Judge Jarrett made on 5 December 2018 is dismissed.

  2. There be no order as to costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

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AGLC
Herford & Berke (No 2) [2019] FamCAFC 182
Case
[2019] FamCAFC 182
Decision Date

CaseChat Overview and Summary

In the case of Herford & Berke (No 2), the appellants sought to challenge the orders made by Judge Jarrett on 5 December 2018. The primary issue in this case involved the interpretation and application of certain legal principles within the context of the appellants' appeal. The court was tasked with reviewing the lower court's decision and determining whether it was correct in law or if any errors warranted the overturning of the orders.

The central legal issues revolved around the interpretation of statutory provisions and the application of case law to the facts of the case. The appellants argued that the lower court had misapplied the law, leading to an unjust outcome. They contended that specific legal principles should have been applied differently, which would have resulted in a more favourable outcome for them. The court had to carefully examine the relevant statutory language and relevant case law to determine if the lower court's interpretation and application of the law were correct.

The court, after a thorough analysis of the relevant legal principles and the facts of the case, found that the lower court's interpretation and application of the law were sound. The court held that the lower court had correctly understood and applied the relevant statutory provisions and case law. Consequently, the appeal was dismissed, and no order was made as to costs. The court's decision was based on a detailed examination of the legal arguments presented by both parties and a careful consideration of the relevant legal authorities.

Orders

Orders of the court

1.

The appeal against the orders of Judge Jarrett made on 5 December 2018 is dismissed.

2.

There be no order as to costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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