JOSS & CHADWELL - [2015] FamCA 550

FAMILY COURT OF AUSTRALIA

JOSS & CHADWELL

[2015] FamCA 550

FAMILY LAW – JURISDICTION – De Facto – Where the applicant sought a declaration in relation to property settlement proceedings that a de facto relationship existed between the applicant and the respondent – Where the parties were in a relationship for 16 years – Consideration of the circumstances set out in s 4AA(2) of the Family Law Act 1975 (Cth) – Where the parties shared a common residence for relatively short periods of time –Where the parties engaged in sexual relations – Where the parties had other relationships and sexual partners – Where the applicant was dependent on the respondent for financial support for periods during the relationship – Where the parties did not have joint bank accounts – Where the parties bought two properties together – Where the parties both separately purchased other properties – Where the parties did not always physically care for each other during periods of illness – Where the parties spent significant periods of time apart – Whether the parties were living together on a “genuine domestic basis” – Application seeking declaration for a de facto relationship dismissed.

Family Law Act 1975 (Cth) ss 4AA, 44, 90RD, 90RE, 90RG, 90RF, 90SM
Family Law Amendment (De facto Financial Matters and Other Measures) Act 2008 (Cth)
De Facto Relationships Act 1984 (NSW)

Barry and Dalrymple [2010] FamCA 1271
In the Marriage of Cierpiatka (1999) FLC 92-864
Jonah v White [2011] Fam LR 460
Nelson v Nelson (1995) 184 CLR 538
Roy v Sturgeon (1986) 11 Fam LR 271

APPLICANT:

Mr Joss

RESPONDENT:

Mr Chadwell

FILE NUMBER:

SYC

1932

2013

DATE DELIVERED:

17 July 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Loughnan J

HEARING DATE:

15 – 20 September 2014 and16 October 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Sutherland SC

SOLICITOR FOR THE APPLICANT:

Swifte Law

COUNSEL FOR THE RESPONDENT:	Mr Schonell
SOLICITOR FOR THE RESPONDENT:	Beilby Poulden Costello

Orders

The application for a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) that a de facto relationship existed between the parties between January 1997 and 17 December 2012 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Joss & Chadwell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1932 of 2013

Mr Joss

Applicant

And

Mr Chadwell

Respondent

REASONS FOR JUDGMENT

Introduction

By his Application filed 11 April 2013, Mr Joss (“the applicant”) sought orders for settlement of property. The present hearing relates to a threshold issue – the applicant seeks a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) (“the Act”) that a de facto relationship existed between him and Mr Chadwell (“the respondent”) between January 1997 and 17 December 2012. The respondent opposed the making of that the declaration.
It is agreed that the parties had a relationship…

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 JOSS & CHADWELL

Details

AGLC: JOSS & CHADWELL [2015] FamCA 550
Case: [2015] FamCA 550
Decision Date: 17 July 2015

CaseChat Overview and Summary

In this matter before the Federal Court of Australia, the applicant sought a declaration that a de facto relationship existed between herself and the respondent. The parties had been in a relationship for approximately 16 years, and the applicant was seeking property settlement orders under Part VIIIAB of the *Family Law Act 1975* (Cth).

The central legal issue before the Court was whether the parties were living together on a "genuine domestic basis" as contemplated by section 4AA(1)(c) of the *Family Law Act 1975* (Cth), which is the statutory definition of a de facto relationship. This required the Court to consider various circumstances outlined in section 4AA(2), including the duration of the relationship, the nature and extent of their common residence, whether a sexual relationship existed, the degree of financial dependence or interdependence, the ownership and acquisition of property, the degree of mutual commitment to a shared life, the care and support of children, and the reputation and public aspects of the relationship.

Loughnan J considered the evidence presented, noting that while the parties had engaged in sexual relations and the applicant had been financially dependent on the respondent for periods, several factors weighed against a finding of a genuine domestic basis. These included the parties sharing a common residence for only relatively short periods, their engagement in other relationships and with other sexual partners, the absence of joint bank accounts, and the fact that they did not always provide physical care for each other during illness. Furthermore, the parties spent significant periods apart and had each separately purchased properties, although they had also bought two properties together. The Court emphasised that no single factor was determinative and that it was entitled to attach such weight to any matter as seemed appropriate in the circumstances.

Ultimately, the Court found that the circumstances did not demonstrate that the parties were living together on a genuine domestic basis. Accordingly, the application for a declaration that a de facto relationship existed between the parties was dismissed.

Orders

Orders of the court

The application for a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) that a de facto relationship existed between the parties between January 1997 and 17 December 2012 is dismissed.

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

Sections 90RD, 90RE, 90RF and 90RG of the Act provide:90RD 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. Here the applicant seeks orders under s 90SM which provides for the Court to make property settlement orders after the breakdown of a de facto relationship. This Court has jurisdiction in relation to financial matters relating to de facto relationships because of Part VIIIAB of the Act. That Part was inserted into the Act by the Family Law Amendment (De facto Financial Matters and Other Measures) Act 2008 (Cth) (“the amending Act”). Part VIIIAB does not apply to a de facto relationship that “broke down” before the commencement date of the relevant schedule of the amending Act, (Item 86 of Part 2 of Schedule 1 to the amending Act); that commencement date was 1 March 2009. Section 44 of the Act relevantly provides: As to what constitutes a de facto relationship for present purposes, s 4AA of the Act provides: (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.