JACOB & LAWRENCE - [2013] FamCA 188

FAMILY COURT OF AUSTRALIA

JACOB & LAWRENCE

[2013] FamCA 188

FAMILY LAW – JURISDICTION – application seeking a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) that the parties had lived together in a de facto relationship for at least two years or in the alternative, a declaration that the applicant had made substantial contributions of the kind referred to in s 90SM(4)(a), (b) or (c), and a declaration pursuant to s 90SB that a failure to make the declaration sought and the property orders sought by the applicant would result in a serious injustice to the applicant.
FAMILY LAW – DE FACTO RELATIONSHIP – living together as a couple on a genuine domestic basis – degree of mutual commitment to a shared life
FAMILY LAW – SUBSTANTIAL CONTRIBUTIONS – meaning of ‘contribution’ and whether those contributions are substantial
FAMILY LAW – ORDERS – finding that the applicant has not established the necessary jurisdictional facts – Application dismissed.

Family Law Act 1975 (Cth)

V and K [2005] FCWA 80
Jonah & White [2011] FamCA 221
Jonah & White [2012] FamCAFC 200
Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135
Vaughan v Hoskovich [2010] NSWSC 706

APPLICANT:

Ms Jacob

RESPONDENT:

Mr Lawrence

FILE NUMBER:

MLC

2295

2012

DATE DELIVERED:

27 March 2013

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Macmillan J

HEARING DATE:

11 & 12 February 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Combes

SOLICITOR FOR THE APPLICANT:

Taussig Cherrie Fildes

COUNSEL FOR THE RESPONDENT:

Ms Swart

SOLICITOR FOR THE RESPONDENT:

Rudstein Kron Lawyers

IT IS ORDERED THAT

The applicant’s amended application filed 23 January 2013 and the respondent’s Amended Response filed 4 February 2013 be and are hereby dismissed.
All extant applications be otherwise dismissed and removed from the list of cases awaiting hearing.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel including solicitor acting as counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2295 of 2012

Ms Jacob

Applicant

And

Mr Lawrence

Respondent

REASONS FOR JUDGMENT

The parties in this case met on an internet dating site at the end of August 2009 and commenced a relationship shortly thereafter, initially the respondent says exchanging emails, letters and text messages. The respondent described himself as being besotted by the applicant and believed that his feelings were returned. It is clear from his evidence that he hoped for a long term relationship with the applicant. At the time their relationship commenced the respondent was renting an apartment in B suburb and it is common ground that the parties spent time together primarily at the applicant’s home in C suburb, albeit there is a dispute as to how…

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 JACOB & LAWRENCE

Details

AGLC: JACOB & LAWRENCE [2013] FamCA 188
Case: [2013] FamCA 188
Decision Date

CaseChat Overview and Summary

The Family Court of Australia considered an application by Ms Jacob against Mr Lawrence concerning their relationship. Ms Jacob sought declarations that she and Mr Lawrence had lived together in a de facto relationship for at least two years, or alternatively, that she had made substantial contributions to the relationship and that a failure to make property orders would result in serious injustice. Mr Lawrence sought the dismissal of Ms Jacob's application for want of jurisdiction.

The court was required to determine two primary issues. First, whether the parties had commenced a relationship as a couple living together on a genuine domestic basis by 14 October 2009, which would satisfy the two-year duration requirement for a de facto relationship. Second, if the two-year period was not established, the court had to determine whether Ms Jacob had made substantial contributions of the kind specified in section 90SM(4) of the *Family Law Act 1975* (Cth) and whether a failure to make the sought orders would result in serious injustice to her.

In reaching its decision, the court applied the definition of a de facto relationship under section 4AA of the *Family Law Act 1975* (Cth), which requires parties to be living together as a couple on a genuine domestic basis, considering various circumstances including the duration of the relationship, common residence, sexual relationship, financial dependence, property ownership, and degree of mutual commitment. The court found that while the parties commenced a sexual relationship in September 2009 and had some occasional overnight stays at each other's homes, they did not have a common residence or significant financial interdependence by 14 October 2009. The court preferred the respondent's evidence, finding the applicant's evidence to be dramatic and tailored to her sense of injustice.

Consequently, the court was not satisfied that the parties had lived together as a couple on a genuine domestic basis for the requisite two-year period. As the alternative grounds for jurisdiction also relied on establishing substantial contributions and serious injustice, and given the court's findings regarding the nature of the relationship in late 2009, the court dismissed Ms Jacob's amended application and all extant applications.

Orders