FAMILY COURT OF AUSTRALIA
| JONAH & WHITE | [2011] FamCA 221 |
| FAMILY LAW - DE FACTO RELATIONSHIPS – where applicant seeks declaration pursuant to s 90RD that the relationship was a “de facto relationship” – where parties in a relationship for seventeen years – where respondent married for entire duration of relationship – where relationship was clandestine – where parties lived separately – where parties did not share any property – where parties did not pool resources – where parties only saw each for a couple of days every two to three weeks – whether the parties were living together on a “genuine domestic basis” – the parties’ relationship was not a “de facto relationship” |
| Acts Interpretation Act 1954 (Qld) (as amended) Family Law Act 1975 (Cth) Family Provision Act 1982 (NSW) Marriage Act 1961 (Cth) Probate and Administration Act 1898 (NSW) Property Law Act 1974 (Qld) Property (Relationships) Act 1984 (NSW) |
| Barnes v de Jesus [2001] NSWSC 19 Corporation of the City Enfield v Development Assessment Commission (2000) 199 CLR 135 FO v HAF [2006] QCA 555 Green v Green (1989) 17 NSWLR 343 Hayes v Marquis (2008) NSWCA 10 JJR v PH [2005] QSC 253 KQ v HAE [2006] QCA 489 Light v Anderson [1992] DFC 95-102 Moby v Schulter [2010] FLC 923-447 PY v CY [2005] QCA 247 Roy v Sturgeon [1986] DFC 95-031 Simonis v Perpetual Trustee Co Ltd [1987] 21 NSWLR 677 Vaughan v Hoskovich [2010] NSWSC 706 |
| APPLICANT: | Ms Jonah |
| RESPONDENT: | Mr White |
| FILE NUMBER: | BRC | 10055 | of | 2010 |
| DATE DELIVERED: | 4 April 2011 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 21 March 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Richard Galloway |
| SOLICITOR FOR THE APPLICANT: | MBT Lawyers of Coffs Harbour |
| COUNSEL FOR THE RESPONDENT: | Mr Richard Maurice |
| SOLICITOR FOR THE RESPONDENT: | M H Peoples & Co of Bondi Junction |
Orders
That the application for a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) (as amended) is dismissed.
That the Amended Initiating Application filed 14 February 2011 is otherwise dismissed.
Following the expiration of the appeal period, all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
IT IS NOTED that publication of this judgment under the pseudonym Jonah & White is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 10055 of 2010
| Ms Jonah |
Applicant
And
| Mr White |
Respondent
REASONS FOR JUDGMENT
During 1992, the applicant commenced employment at a business run by the respondent. They commenced an intimate relationship. That relationship continued, with some interruptions and with differing manifestations, until early 2009.
During the whole of that time, the respondent was married. His wife was, until the end of that period, unaware of the relationship between the applicant and the respondent. The respondent and his wife have three children. They were aged approximately…
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- AGLC
- Jonah & White [2011] FamCA 221
- Case
- [2011] FamCA 221
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether a de facto relationship existed between the parties for the purposes of the *Family Law Act*. This required the court to consider the definition of a de facto relationship, particularly the concepts of "a couple" and "living together," as contemplated by the Act.
Justice Murphy's reasoning was informed by previous authorities, including the decision of Mushin J in *Moby v Schulter*. His Honour agreed with the approach that the definition of a de facto relationship should be considered as a "single composite expression of a comprehensive notion or concept." The court determined that for a de facto relationship to exist, the parties must constitute "a couple" and must "live together." However, the concept of "living together" does not necessitate full-time cohabitation and does not import any requirement for a proportion of time spent together. Ultimately, the question of whether parties were in a de facto relationship is to be determined on a case-by-case basis, without unduly circumscribing any particular factor.
The application for a declaration pursuant to section 90RD of the *Family Law Act* was dismissed. The Amended Initiating Application was also dismissed. Following the expiration of the appeal period, all subpoenaed documents were to be returned to their original custodians, and all exhibits were to be returned to the persons who tendered them.
Orders
Orders of the court
1.
That the application for a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) (as amended) is dismissed.
2.
That the Amended Initiating Application filed 14 February 2011 is otherwise dismissed.
3.
Following the expiration of the appeal period, all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
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
Section 90RD 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 relationship. Note: For child of a de facto relationship, see section 90RB. In Moby v Schulter, above, Mushin J considered a number of authorities in State jurisdictions. His Honour agreed with the approach exemplified in earlier decisions in New South Wales, including Roy v Sturgeon [1986] DFC 95-031; Simonis v Perpetual Trustee Co Ltd [1987] 21 NSWLR 677 and the decision of the NSW Court of Appeal in Light v Anderson [1992] DFC 95-102. His Honour went on to say:139.While I respectfully agree with the approach of their Honours, before the definition may be considered as constituting “a single composite expression of a comprehensive notion or concept” there are two specific elements of that definition which require individual considerations. The first of those is the concept of “a couple”. For the purposes of the definition, “a couple” is constituted by two people whether of the same or opposite sexes.140.The second specific element is the concept of “living together”. In my view, if a couple do not live together at any time, they cannot be seen as being in a de facto relationship. However, the concept of “living together” does not import any concept of proportion of time. In particular, it does not require that a couple live together on a full time basis. On the basis that one or both members of the couple may also be legally married or in another de facto relationship at the same time as they are in the subject relationship, it must follow that it is feasible that the subject relationship might involve the parties living together for no more than half of the time of that relationship. Further, there is nothing to suggest that it must be even as much as half of the time.141.Subject to the above, the question of whether the parties were in a de facto relationship must be considered on a case-by-case basis without circumscribing any particular factor. His Honour’s approach might be seen to embrace Powell J’s approach in Simonis v Perpetual Trustee C Ltd at 685 where Powell J held that the (then) definition of “living with … on a bona fide domestic basis” (in s 6 of the Family Provision Act 1982 (NSW)) was “a single composite expression of a comprehensive notion or concept, and therefore has to be approached by considering the expression as a whole and not in several parts”.