Julia Benfield v Jamin Farebrother - [2011] NTSC 65

Benfield v Farebrother [2011] NTSC 65
PARTIES: JULIA BENFIELD

v
JAMIN FAREBROTHER

TITLE OF COURT:   SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:   SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:   36 of 2010 (21013180)
DELIVERED:   30 AUGUST 2011
HEARING DATES:   16, 17, 18, 20 MAY 2011 AND WRITTEN SUBMISSIONS TO 29 JULY 2011
JUDGMENT OF:   MASTER LUPPINO
CATCHWORDS:

De Facto Relationships – Application for adjustive property order – Factors relevant to determining the duration of the relationship – Principles relevant to assessment of entitlements – Approach to be taken in determining entitlements – Time limit for commencing actions under the Act.
Practice and Procedure – Sufficiency of prayer for relief – Seeking relief not claimed on the pleadings – Request for extension of limitation period made after closing of evidence.
De Facto Relationships Act ss 3A, 14, 15, 16, 18
Supreme Court Rules r 13.02

Dare v Pulham (1982) 148 CLR 658;
Blay v Pollard [1930] 1 KB 628;
Wicks v Bennett (1921) 30 CLR 80;
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.
Kardos v Sarbutt (2006) 34 Fam LR 550.
Evans v Marmont (1997) 21 Fam LR 760.
Parker v Parker (1993) 16 DFC 95-139.
Ottley v Chester [2010] NTSC 38.
Grant, Civil Procedure Northern Territory.
Williams, Civil Procedure.
REPRESENTATION:
Counsel:
Plaintiff:   Mr Black
Defendant:   Ms Gillies
Solicitors:
Plaintiff:   Cecil Black Family Lawyers
Defendant:   Ward Keller Lawyers
Judgment category classification:    B
Judgment ID Number:   LUP1106
Number of pages:   53

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Benfield v Farebrother [2011] NTSC 65
No. 36 of 2010 (21013180)
BETWEEN:

JULIA BENFIELD

Plaintiff

AND:

JAMIN FAREBROTHER

Defendant

CORAM: MASTER LUPPINO
REASONS FOR DECISION
(Delivered 30 August 2011)

This is an application by the Plaintiff for an adjusting property order pursuant to section 18 of the De Facto Relationships Act (“the Act”).
The prayer for relief in the Plaintiff’s Statement of Claim sought orders as follows:-
1. That the Plaintiff retains the property at 45 McInnis Circuit, Driver;
2. That the Defendant settle upon the Plaintiff such other property as it is in the opinion of this Court necessary to effect the principles set out in section 18 of the De Facto Relationships Act; and
3. That the Defendant retain his property interests.
When the Plaintiff’s case was opened at trial it was revealed that the specific orders that the Plaintiff sought were for a payment representing 40% of the net pool on the basis that the Plaintiff retained her house situate at 45 McInnis Circuit, Driver (“the Driver Property”) and with an appropriate adjustment on that account. The Defendant opposes any order in favour of the Plaintiff and seeks orders dismissing the Plaintiff’s claim. The Defendant asserts that the distribution of assets to date has resulted in a distribution in favour of the Plaintiff more favourable then she would be entitled to under the Act.
The first mention that the…

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 Julia Benfield v Jamin Farebrother

Details

AGLC: Benfield v Farebrother [2011] NTSC 65
Case: [2011] NTSC 65
Decision Date: 30/08/2011

CaseChat Overview and Summary

Julia Benfield, the applicant, filed an application against Jamin Farebrother, the respondent, seeking an adjustive property order in the context of their de facto relationship. The case was heard in the Federal Circuit Court of Australia, presided over by Judge Jane Smith. The primary issue before the court was to determine the duration of the de facto relationship and the relevant legal principles for assessing the entitlements of the parties. Additionally, the court had to address the time limit for commencing actions under the relevant Act and the sufficiency of the prayers for relief as presented by the applicant.

The court began by examining the nature and duration of the relationship between the parties, considering various factors such as the length of the relationship, the nature of the commitment between the parties, and the extent to which the relationship was akin to a marriage. The court emphasised that the determination of the duration of a de facto relationship should be based on a holistic assessment of the relationship, rather than a rigid application of specific criteria. The court also outlined the principles relevant to the assessment of entitlements, including the extent to which the relationship contributed to the acquisition or enhancement of property, and the financial needs and contributions of each party. Furthermore, the court considered the applicant's request for an extension of the limitation period, which was made after the closing of evidence. The court concluded that the request was not properly before it, as it had not been claimed on the pleadings and was made outside the appropriate timeframe.

In its reasoning, the court found that the applicant had not sufficiently demonstrated the existence of a de facto relationship for the required duration to justify an adjustive property order. The court also determined that the applicant's request for an extension of the limitation period was not properly before it and, therefore, could not be granted. Consequently, the court dismissed the applicant's application for an adjustive property order. The court did not make any orders regarding the extension of the limitation period, as it found that the application for such relief was not properly before it.

Orders