Janet Hayes v Katrina Harrison

[2002] ACTSC 22

JANET HAYES v KATRINA HARRISON
[2002] ACTSC 22 (28 March 2002)

CATCHWORDS

DOMESTIC RELATIONSHIP – extension of time – conditions for grant of leave - application for adjustment of property – domestic relationship between persons of the same sex – preponderance of hardship.

Domestic Relationships Act 1994 s 10, s 11, s 12 and s 13
De Facto Relationships Act 1984 (NSW) (now Property (Relationships) Act 1984 (NSW))

Beavan v Fallshaw(1992) 15 Fam LR 686
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Mason v Murray’s Charter Coaches and Travel Services Pty Ltd (1998) 88 FCR 308; 159 ALR 45

No. SC of 814 of 2001

Judge:          Higgins J
Supreme Court of the ACT
Date:           28 March 2002

IN THE SUPREME COURT OF THE     )
  )          No. SC  814 of 2001
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: JANET HAYES

Plaintiff

AND: KATRINA HARRISON

Defendant

ORDER

Judge:  Higgins J
Date:  28 March 2002
Place:  Canberra

THE COURT ORDERS THAT:

1. The application be dismissed with costs.

1. The plaintiff, on 10 December 2001, made application, pursuant to the Domestic Relationships Act 1994 (ACT) (the “DR Act”), for an extension of time within which to make an application for an adjustment of property interests in her favour.

1. Whilst there are some factual disputes foreshadowed between the parties, the proper approach is to assume that the plaintiff will make good the assertions of fact which she makes for the purpose of determining whether an extension of time should be granted.

1. There needs first to be prima facie evidence that the court has jurisdiction.

1. The plaintiff asserts that a relationship began about September 1994 between herself and the defendant.  However, the plaintiff was then domiciled in, and a citizen of, the United States of America (USA).  They first were together, on Australian soil, in April 1995.  That was for a “visit” though they lived together for five weeks.

1. The plaintiff moved to Australia in live in a domestic relationship with the defendant in October 1995.  It is clear that the plaintiff (and, presumably, the defendant) intended this to be permanent and the plaintiff applied for permanent residency accordingly.

1. That was granted on 22 July 1998.

1. The parties resided together until February 1999 in Canberra at the defendant’s home, which she owned, at Swinden Street, Downer, in the Australian Capital Territory.

1. The defendant then moved to Sydney.  She had been unwell and was seeking a change of employment.  Initially, she took leave from her then public service position but resigned in June 1999, deciding to take up other employment.

1. The parties have not cohabited since February 1999, though the plaintiff asserts that, in October 1999, after the defendant told her the relationship was over, they were intimate on one occasion.  That fact, if established, does not alter the need for the plaintiff to have an extension of time.

1. In essence, though the defendant foreshadows that she will dispute this if the matter proceeds, the plaintiff says that she did not understand…