Jones and Kitt - [2014] FCCA 1527

FEDERAL CIRCUIT COURT OF AUSTRALIA

JONES & KITT

[2014] FCCA 1527

Catchwords:
FAMILY LAW – Property – de facto property application – whether a de facto relationship existed between the parties – whether there is a de facto financial cause – whether application incompetent – whether the Court has jurisdiction to make the orders sought – where the applicant claims to have reconsidered whether the Court has jurisdiction to entertain his application – where applicant now claims that the parties were not in a de facto relationship.

Legislation:

Family Law Act 1975 (Cth), ss.4AA, 90RD,90SB, 90SE, 90SG, 90SK, 90SL, 90SM, 114

Cases cited:
Dahl & Hamblin [2011] FamCAFC 202; (2011) 46 Fam LR 229; FLC 93-480
Fenton & Marvel [2013] FamCAFC 132
Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 42; FLC 93-286
Jonah & White [2011] FamCA 221; (2011) 45 Fam LR 460
Jonah & White [2012] FamCAFC 200; (2012) FLC 93-522; (2013) 48 Fam LR 563
Lee & Hutton [2013] FamCA 745
Locke & Norton [2013] FCCA 1154
McMaster & Wyhler [2013] FamCA 989
Moby & Schulter [2010] FamCA 748; (2010) FLC 93-447
Norton & Locke [2013] FamCAFC 202
Todd & Todd (No.2) (1976) FLC 90-008; 9 ALR 410
Vaughan & Bele [2010] FamCA 436

Applicant:

MR JONES

Respondent:

MS KITT

File Number:

WOC 1060 of 2013

Judgment of:

Judge Scarlett

Hearing date:

24 April 2014

Date of Last Submission:

24 April 2014

Delivered at:

Sydney

Delivered on:

17 July 2014

REPRESENTATION

Counsel for the Applicant:

Ms Harpley

Solicitors for the Applicant:

Access Law Group

Counsel for the Respondent:

Mr Jordan

Solicitors for the Respondent:

Jordan Djundja Lawyers

ORDERS

It is declared that the Court has jurisdiction to hear the Application for property orders arising out of a de facto relationship filed on 17 December 2013.
Any party seeking an Order for costs must file and serve a written submission setting out the amount of costs sought and the basis upon which those costs have been calculated within one (1) month of the date of these Orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 1060 of 2013

MR JONES

Applicant

And

MS KITT

Respondent

REASONS FOR JUDGMENT

Application

This is, to say the least, a most unusual Application. It is an application by the Applicant for a finding that his substantive Application to the Court is incompetent, in that the Court does not have the jurisdiction to make the Orders that he sought in that Application. Whilst he claimed in his Initiating Application that he and the Respondent were parties to a de facto relationship that has broken down, he now claims that the parties were not in a de facto relationship at all, or, at least, not in such a relationship that would give the Court the jurisdiction to make the orders he…

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 Jones and Kitt

Details

AGLC: Jones and Kitt [2014] FCCA 1527
Case: [2014] FCCA 1527
Decision Date: 17 July 2014

CaseChat Overview and Summary

In *Jones and Kitt*, the applicant sought property orders arising out of a de facto relationship. The respondent challenged the Court's jurisdiction to hear the application.

The central legal issue before the Court was whether it possessed the necessary jurisdiction to entertain the application for property orders concerning the de facto relationship.

Judge Scarlett determined that the Court did have jurisdiction to hear the application. The Court's reasoning, though not detailed in the provided text, led to the declaration that jurisdiction was established. The Court also made orders regarding any future applications for costs, requiring written submissions within one month of the date of the orders.

Orders

Orders of the court

It is declared that the Court has jurisdiction to hear the Application for property orders arising out of a de facto relationship filed on 17 December 2013.

Any party seeking an Order for costs must file and serve a written submission setting out the amount of costs sought and the basis upon which those costs have been calculated within one (1) month of the date of these Orders.

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

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