Janson & Marvin (No 2)

Case [2025] FedCFamC1F 265

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Janson & Marvin (No 2) [2025] FedCFamC1F 265

File number(s): BRC 12096 of 2017
Judgment of: CARTER J
Date of judgment: 28 April 2025
Catchwords: FAMILY LAW – DE FACTO RELATIONSHIP – Threshold issue – Where the respondent did not file court material or attend Court – Leave granted to proceed undefended – Where the applicant seeks a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) that a de facto relationship existed between the parties – Consideration of the nature of the relationship – Declaration made.
Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 4AA & 90RD

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13
Cases cited:

Briginshaw v Briginshaw (1938) 60 CLR 336

Cantu & Galloway [2023] FedCFamC1F 993

Denys v Kellett [2022] FedCFamC1A 223

Jonah & White (2012) FLC 93-522

Lynam v Director-General of Social Security (1984) FLC 91-577

Rowe v Stoltze (2013) 45 WAR 116

Sinclair & Whittaker (2013) FLC 93-551

Strahan & Strahan [2019] FamCAFC 31
Division: Division 1 First Instance
Number of paragraphs: 88
Date of hearing: 22 April 2025
Place: Melbourne
Counsel for the Applicant: Litigant in Person
Counsel for the Respondent: Litigant in Person (did not participate)

ORDERS

BRC 12096 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS JANSON

Applicant
AND:

MR MARVIN

Respondent

ORDER MADE BY:

CARTER J

DATE OF ORDER:

28 APRIL 2025

THE COURT ORDERS THAT:

1.The applicant has leave to proceed with the threshold application on an undefended basis.

2.Pursuant to s 90RD of the Family Law Act 1975 (Cth), there be a declaration that a de facto relationship existed between the parties from June 2005 to February 2016.

3.The matter be listed for a mention on a date to be fixed before her Honour Justice Hartnett.

4.The applicant serve a copy of these reasons and orders on the respondent by email at …@... and by Registered Post to R Street, Suburb S Victoria within seven days.

AND THE COURT NOTES THAT:

A.Pursuant to r 10.13(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the Court may vary or set aside a judgment or order made in the absence of a party.

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…

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AGLC
Janson & Marvin (No 2) [2025] FedCFamC1F 265
Case
[2025] FedCFamC1F 265
Decision Date

CaseChat Overview and Summary

The matter before Carter J in the Federal Circuit and Family Court of Australia was an application by Ms Janson, the applicant, to declare that she was in a de facto relationship with Mr Marvin, the respondent, for the purposes of obtaining financial relief under the Family Law Act 1975 (Cth). Mr Marvin did not file any court material or attend court. The applicant sought a declaration under section 90RD of the Family Law Act that a de facto relationship existed between the parties from June 2005 to February 2016. The primary legal issue for the court was to determine whether a de facto relationship existed between the parties for the requisite period, thereby establishing jurisdiction for financial relief under Part VIIIAB of the Family Law Act.

The court considered the evidence presented by the applicant regarding the duration and nature of the relationship. The applicant testified that she and the respondent began dating in April 2005 and that by June 2005, they were living in a de facto relationship. The applicant moved into a property owned by the respondent, initially paying rent but stopping shortly thereafter. The respondent stayed with the applicant three to four nights a week, while maintaining a residence with his former wife for the sake of their children. Over the years, the couple moved through various properties, with the respondent spending part of the week with the applicant and the rest of the time with his former wife and children. The applicant asserted that from mid-2012, the couple lived together full-time. The court accepted the applicant’s evidence as credible and comprehensive, finding that a de facto relationship existed from June 2005 to February 2016.

As a result of the findings, the court granted the applicant leave to proceed with the application on an undefended basis and made the declaration sought. The court listed the matter for a mention before Justice Hartnett and directed the applicant to serve the reasons and orders on the respondent. This declaration is pivotal for the applicant’s pursuit of financial relief under the Family Law Act.

Orders

Orders of the court

BRC 12096 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS JANSON

Applicant

AND:

MR MARVIN

Respondent

ORDER MADE BY:

CARTER J

DATE OF ORDER:

28 APRIL 2025

THE COURT ORDERS THAT:

1. The applicant has leave to proceed with the threshold application on an undefended basis.

2. Pursuant to s 90RD of the Family Law Act 1975 (Cth), there be a declaration that a de facto relationship existed between the parties from June 2005 to February 2016.

3. The matter be listed for a mention on a date to be fixed before her Honour Justice Hartnett.

4. The applicant serve a copy of these reasons and orders on the respondent by email at …@... and by Registered Post to R Street, Suburb S Victoria within seven days.

AND THE COURT NOTES THAT:

A. Pursuant to r 10.13(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the Court may vary or set aside a judgment or order made in the absence of a party.

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 involved in family law proceedings.

Background

Background to the litigation

For the reasons that follow, I find that the parties were in a de facto relationship from June 2005 to February 2016. Jurisdiction to grant financial relief between the parties under Part VIIIAB of the Act is therefore enlivened. BACKGROUND The applicant’s evidence is that the parties met in April 2005 and went on their ‘first date’ in April 2005. She had, at that time, just commenced working in the respondent’s business. In June 2005 the applicant, at the invitation of the respondent, moved in a property at V Street, Suburb W (“V Street”) owned by him. She initially paid rent, but that arrangement ceased fairly promptly. It is the applicant’s evidence that the respondent regularly came over to V Street and stayed there with the applicant three to four nights per week. He otherwise stayed at the home of his then wife Ms Nazari with whom he has three children – which he continued to do until 2012. It is the applicant’s evidence that initially when the parties commenced their relationship they were both seeing other people. She said by the start of 2006 she had ended her relationship with her then boyfriend. She said that in April 2006 the respondent said his relationship with Ms Nazari was at an end. However, he continued to visit her home in order to co-parent their children, taking the children to and from school on the days he stayed there. The applicant said the respondent told her that he slept separately to Ms Nazari and that there was no physical intimacy between himself and Ms Nazari save on one occasion when they were drunk. In 2008 the parties secured rental accommodation in Suburb O. The applicant lived in that property and the respondent continued to stay there for part of the week and otherwise spent a few nights at the home of Ms Nazari and their children. In about mid 2009 the parties moved into a property at X Street, Suburb Y (“X Street”), which had been purchased by the parties through a trust. Again, the applicant lived in that property and the respondent continued to stay there for part of the week, and otherwise spent a few nights at the home of Ms Nazari and their children. That arrangement continued for about six months before the parties purchased a property at Z Street, Suburb AA (“Z Street”). The applicant again lived in that property, and the respondent continued to spend time at Z Street, and at the home of Ms Nazari. The applicant said that as the respondent’s children got older the respondent stayed at Ms Nazari’s home less frequently and stayed more frequently at the home with the applicant. In January 2011 the respondent became bankrupt. In December 2011 the applicant also became bankrupt. In late 2012 the parties purchased a property at BB Street, Suburb CC (“BB Street”) and moved in together for about eight months. The applicant’s evidence is that from that time the parties lived together full time. BB Street was subsequently sold and the parties then purchased a property at DD Street, Suburb EE (“DD Street”) and lived there together from about late 2014.

Evidence

Evidence Before The Court

The respondent has been sued by the Deputy Commissioner of Taxation for in excess of eight million. Judgment has been obtained, and both DD Street and R Street are the subject of freezing orders. ASSESSMENT OF THE EVIDENCEThe duration of the relationship It is the applicant’s evidence that the parties commenced dating in April 2005 and that by June 2005 they were in a de facto relationship – with the applicant having moved into a home owned by the respondent. It is her evidence that between 2005 and 2016 the parties lived together in a variety of properties – with the respondent spending some time at the home of his former wife in order to spend time with his children. The applicant said the relationship endured until early 2016 – even though she moved to Queensland in mid-2015. She said notwithstanding that move, the parties continued with their relationship – with the respondent travelling to Queensland every three to four weeks, and with the respondent then assisting her to purchase a property there. She said the parties took a three-week holiday, including a seven-night luxury cruise, in early 2016. However, after the end of that holiday the relationship came to an end. Accordingly, she asserts the relationship spanned about 10 and a half years. The nature and extent of their common residence The applicant says from mid-2005 she moved into V Street which was owned by the respondent. It is her evidence that at the start of the parties’ relationship, the respondent stayed with her about three to four nights a week and that whilst she initially paid rent, that ceased reasonably promptly. She said the respondent met the mortgage payments for the property and the rates and insurances. In the respondent’s affidavit he confirmed the applicant lived at V Street rent free from 2005/2006 (paragraph five and 22 of his affidavit filed 22 August 2018). He also confirmed that he stayed “up to three…and perhaps four nights” each week with the applicant. In 2008 the applicant says the parties moved from V Street to a rental property in Suburb O where they lived for 12 months. That is admitted by the respondent (at paragraph 27 of his affidavit filed 22 August 2018). It is the applicant’s evidence that the respondent met the rental payments on that property. The parties then lived in X Street purchased by the applicant through a trust structure for about six months, before moving in together into Z Street, again purchased by the parties through a corporate structure. The respondent acknowledged that he lived in the X Street property although he said only for a “short time” (paragraph 27 of his affidavit filed 22 August 2018). The parties lived in the Z Street property together between about early 2010 to late 2012 – with the applicant living there full time and the respondent staying there multiple nights each week. In late 2012 then moved to a unit they purchased in BB Street, where they lived together on a full-time basis. They then sold that property and purchased DD Street which they moved into in late 2014.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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