Herford & Berke (No 2)

[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).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT…