Jensen and Taylor - [2011] FMCAfam 1251

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JENSEN & TAYLOR

[2011] FMCAfam 1251

FAMILY LAW – Whether de facto relationship – whether the parties had so merged their lives that they were, for all practical purposes “living together” as a couple on a genuine domestic basis – expectations that did not eventuate.

Family Law Act 1975, ss.4AA, 90SB, 90SE, 90SG, 90SM, 90RB, 90RD(1)

Baker & Landon [2010] FMCAfam 280
Hayes v Marquis (2008) NSWCA 10
Jonah & White [2011] FamCA 221
KQ v HAE [2006] QCA 489; [2007] 2 Qd R 32
Moby & Schulter (2010) FLC 93-447
Vaughan v Hoskovich [2010] NSWSC 706

Applicant:

MS JENSEN

Respondent:

MR TAYLOR

File Number:

MLC 4729 of 2011

Judgment of:

F. Turner FM

Hearing dates:

11 & 14 November 2011

Date of Last Submission:

14 November 2011

Delivered at:

Melbourne

Delivered on:

25 November 2011

REPRESENTATION

Counsel for the Applicant:

Ms Portelli

Solicitors for the Applicant:

Peter Baker & Associates

Solicitors for the Respondent:

Coulter Roache

THE COURT DECLARES THAT:

A de facto relationship never existed between Ms Jensen and

Mr Taylor.

THE COURT ORDERS THAT:

The application for spousal maintenance filed 1 June 2011 is dismissed.
Order 2 of the orders made on 6 July 2011 adjourning the matter for final hearing on 3 February 2012 is revoked.
All extant applications are dismissed and the matter is removed from the list of pending cases.

IT IS NOTED that publication of this judgment under the pseudonym Jensen & Taylor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 4729 of 2011

MS JENSEN

Applicant

And

MR TAYLOR

Respondent

REASONS FOR JUDGMENT

The parties in this matter were teenage sweethearts. A child [X] was born [in] 1994. At first the applicant denied that the respondent was the father, but later said that he is the father (Transcript “T” 11/11/2011 p.40, l.18 and p.41, l.8).
The parties went their own ways in September 1993 (T 11/11/2011 p.43, l.20). The applicant remained in Bendigo, married, and had children. She was divorced in 2006. The respondent moved to the Geelong area, married, and had children.
The parties met again in October 2006. Their romance flourished again and an intimate relationship began in December 2006 (T 11/11/2011 p.3, l.10).
The respondent visited and slept with the applicant in Bendigo regularly on Friday nights; the visits were not every Friday night (T 14/11/2011 p.3, l.18), and sometimes there would be a gap of two weeks between visits. Occasionally the respondent stayed for two nights, and once he stayed for three nights (T 14/11/2011 p.4, l.2). They never ‘moved in’ together on a more regular basis. When visiting, the respondent would take a bottle of wine, and sometimes buy pizzas or ice-creams. The applicant said he would bring chocolates and purchase groceries.
The applicant visited her relations and the respondent in Geelong and surrounding areas, staying with both on occasions. The parties stayed in Daylesford together twice (T…

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 Jensen and Taylor

Details

AGLC: Jensen and Taylor [2011] FMCAfam 1251
Case: [2011] FMCAfam 1251
Decision Date: 25 November 2011

CaseChat Overview and Summary

In the case of Jensen and Taylor, the court was asked to determine whether the parties were in a de facto relationship. This was a significant issue given the application for spousal maintenance and the need to interpret the relevant provisions of the Family Law Act 1975. The case was heard over two days in November 2011, with Ms Portelli representing the applicant and Mr Hogan representing the respondent. The primary legal issue revolved around the interpretation of section 4AA of the Act, which defines a de facto relationship, and whether the applicants met the criteria set out within that definition. The court had to consider various factors including the duration of the relationship, the nature and extent of their common residence, whether a sexual relationship existed, the degree of financial dependence, the ownership, use and acquisition of their property, the degree of mutual commitment to a shared life, and the reputation and public aspects of the relationship.

The court's reasoning focused on the application of section 4AA of the Act, which requires the court to consider all the circumstances of the relationship to determine whether the parties have a relationship as a couple living together on a genuine domestic basis. The court noted that no single factor is determinative and that the weight to be attached to each factor may vary according to the circumstances of the case. After examining the evidence and the statutory criteria, the court concluded that the applicants had not demonstrated the existence of a de facto relationship. Consequently, the application for spousal maintenance was dismissed, and all other extant applications were also dismissed, with the matter being removed from the list of pending cases.

This decision highlights the importance of a comprehensive evaluation of all relevant factors when determining whether a de facto relationship exists under the Family Law Act 1975. The court's dismissal of the spousal maintenance application underscores the necessity for applicants to provide clear and convincing evidence that meets the statutory criteria. The orders reflect the court's determination that the applicants had not established the existence of a de facto relationship, leading to the dismissal of all applications and the removal of the matter from the court's list of pending cases.

Orders

Orders of the court

The application for spousal maintenance filed 1 June 2011 is dismissed.

Order 2 of the orders made on 6 July 2011 adjourning the matter for final hearing on 3 February 2012 is revoked.

All extant applications are dismissed and the matter is removed from the list of pending cases.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Section 90RD(1) of the Act provides:Declarations about existence of de facto relationships(1)If(a)an application is made for an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL; and(b)a claim is made, in support of the application, that a de facto relationship existed between the applicant and another person;the court may, for the purposes of those proceedings (the primary proceedings ), declare that a de facto relationship existed, or never existed, between those 2 persons. (2)A declaration under subsection (1) of the existence of a de facto relationship may also declare any or all of the following:(a)the period, or periods, of the de facto relationship for the purposes of paragraph 90SB(a);(b)whether there is a child of the de facto relationship;(c)whether one of the parties to the de facto relationship made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c);(d)when the de facto relationship ended; (e)where each of the parties to the de facto relationship was ordinarily resident during the de facto relationshipNote: For child of a de facto relationship, see section 90RB. The first issue for determination therefore is whether the parties were in a de facto relationship. That is the issue covered by this decision. The hearing took place on 11 and 14 November 2011. Ms Portelli appeared for the applicant and Mr Hogan appeared for the respondent. Section 4AA of the Act sets out the meaning of “de facto relationship” as follows:(1)A person is in a de facto relationship with another person if:(a)the persons are not legally married to each other; and(b)the persons are not related by family (see subsection (6)); and(c)having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.Paragraph (c) has effect subject to subsection (5). Working out if persons have a relationship as a couple (2)Those circumstances may include any or all of the following:(a)the duration of the relationship;(b)the nature and extent of their common residence;(c)whether a sexual relationship exists;(d)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;(e)the ownership, use and acquisition of their property;(f)the degree of mutual commitment to a shared life;(g)whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;(h)the care and support of children;(i)the reputation and public aspects of the relationship.(3)No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.(4)A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.(5)For the purposes of this Act:(a)a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and(b)a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.When 2 persons are related by family (6)For the purposes of subsection (1), 2 persons are related by family if:(a)one is the child (including an adopted child) of the other; or(b)one is another descendant of the other (even if the relationship between them is traced through an adoptive parent); or(c)they have a parent in common (who may be an adoptive parent of either or both of them).For this purpose, disregard whether an adoption is declared void or has ceased to have effect.