Irwin & May - [2025] FedCFamC2F 628

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Irwin & May [2025] FedCFamC2F 628

File number(s): NCC 204 of 2022

Judgment of: JUDGE BETTS

Date of judgment: 15 May 2025

Catchwords: FAMILY LAW – De facto property settlement proceedings filed out of time – where the respondent seeks that the application be dismissed on the basis that she disputes the existence of a ‘de facto relationship’ and in the alternative that the application has been filed out of time – where the Court considers that a de facto relationship existed – consideration of hardship – where the Court considers that leave should be granted to apply out of time.

Legislation: Family Law Act 1975 (Cwlth), Pt VIIIAB

Cases cited:
Fairbairn & Radecki (2022) 275 CLR 400

Jonah v White (2012) FLC 93-522

Mayson & Wellard [2021] FamCAFC 115

Owens & Benson [2014] FamCAFC 243

Sinclair v Whittaker (2013) FLC 93-551

Division: Division 2 Family Law

Number of paragraphs: 144

Date of last submission/s: 28 October 2024

Date of hearing: 11, 12 and 13 September 2024 and 28 October 2024

Place: Newcastle

Counsel for the Applicant Mr Bithrey

Solicitors for the Applicant Aubrey Brown Partners

Counsel for the Respondent Mr Livingstone

Solicitors for the Respondent Peter Mitchell Law
ORDERS

NCC 204 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR IRWIN

Applicant

AND:
MS MAY

Respondent

ORDER MADE BY:

JUDGE BETTS

DATE OF ORDER:

15 MAY 2025

THE COURT ORDERS THAT:
1.Pursuant to s 90RD of the Family Law Act 1975 (Cwlth) (“the Act”), the Court declares that a de facto relationship existed between the Applicant Mr Irwin and the Respondent Ms May between approximately April 2012 and July/August 2019.
2.Pursuant to s 44(6) of the Act, the Applicant be given leave to commence Part VIIIAB proceedings against the Respondent out of time.
3.The parties’ costs are reserved.
4.The proceedings are otherwise adjourned to 30 June 2025 at 9.30am for further case management before Judge Betts, including the making of filing directions, orders for disclosure, orders for participation in a mediation or Conciliation Conference and the expedited listing of the proceedings for final hearing if practicable. IT IS NOTED THAT in the interim the parties are encouraged to engage in meaningful discussions with a view to agreeing upon the appropriate directions to be made in order to progress the matter expeditiously.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Irwin & May

Details

AGLC: Irwin & May [2025] FedCFamC2F 628
Case: [2025] FedCFamC2F 628
Decision Date: 15 May 2025

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia was tasked with determining the existence of a de facto relationship between Mr Irwin and Ms May, and whether Mr Irwin should be granted leave to commence property settlement proceedings out of time. The court found that a de facto relationship existed between Mr Irwin and Ms May from approximately April 2012 to July/August 2019. Ms May disputed the existence of the relationship and argued that the application was filed out of time. The court considered the evidence presented and concluded that the relationship did exist. In determining whether to grant leave to apply out of time, the court considered the issue of hardship. The court found that granting leave would not cause significant hardship to Ms May, and therefore, leave should be granted. The court ordered that a de facto relationship existed between the parties, that Mr Irwin be given leave to commence property settlement proceedings out of time, and that the parties' costs were reserved. The proceedings were adjourned to allow for further case management and the expedited listing of the proceedings for final hearing if practicable.

Orders

Orders of the court

NCC 204 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR IRWIN

Applicant

AND:

MS MAY

Respondent

ORDER MADE BY:

JUDGE BETTS

DATE OF ORDER:

15 MAY 2025

THE COURT ORDERS THAT:

1. Pursuant to s 90RD of the Family Law Act 1975 (Cwlth) (“the Act”), the Court declares that a de facto relationship existed between the Applicant Mr Irwin and the Respondent Ms May between approximately April 2012 and July/August 2019.

2. Pursuant to s 44(6) of the Act, the Applicant be given leave to commence Part VIIIAB proceedings against the Respondent out of time.

3. The parties’ costs are reserved.

4. The proceedings are otherwise adjourned to 30 June 2025 at 9.30am for further case management before Judge Betts, including the making of filing directions, orders for disclosure, orders for participation in a mediation or Conciliation Conference and the expedited listing of the proceedings for final hearing if practicable.

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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File number(s):	NCC 204 of 2022
Judgment of:	JUDGE BETTS
Date of judgment:	15 May 2025
Catchwords:	FAMILY LAW – De facto property settlement proceedings filed out of time – where the respondent seeks that the application be dismissed on the basis that she disputes the existence of a ‘de facto relationship’ and in the alternative that the application has been filed out of time – where the Court considers that a de facto relationship existed – consideration of hardship – where the Court considers that leave should be granted to apply out of time.
Legislation:	Family Law Act 1975 (Cwlth), Pt VIIIAB
Cases cited:	Fairbairn & Radecki (2022) 275 CLR 400 Jonah v White (2012) FLC 93-522 Mayson & Wellard [2021] FamCAFC 115 Owens & Benson [2014] FamCAFC 243 Sinclair v Whittaker (2013) FLC 93-551
Division:	Division 2 Family Law
Number of paragraphs:	144
Date of last submission/s:	28 October 2024
Date of hearing:	11, 12 and 13 September 2024 and 28 October 2024
Place:	Newcastle
Counsel for the Applicant	Mr Bithrey
Solicitors for the Applicant	Aubrey Brown Partners
Counsel for the Respondent	Mr Livingstone
Solicitors for the Respondent	Peter Mitchell Law

NCC 204 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR IRWIN Applicant
AND:	MS MAY Respondent

ORDER MADE BY:	JUDGE BETTS
DATE OF ORDER:	15 MAY 2025