K and F - [2010] FCWA 46

[2010] FCWA 46

JURISDICTION	:	FAMILY COURT OF WESTERN AUSTRALIA
ACT	:	FAMILY COURT ACT 1997
LOCATION	:	PERTH
CITATION	:	K and F [2010] FCWA 46
CORAM	:	CROOKS J
HEARD	:	14-17 SEPTEMBER 2009
DELIVERED	:	29 APRIL 2010
FILE NO/S	:	PT 2101 of 2007
BETWEEN	:	K
Applicant
AND
F Respondent
Catchwords:

Court's jurisdiction to determine de facto property claim - division of assets in short relationship where "serious injustice" established - application to change child's surname

Legislation:

Family Court Act 1997, s 205Z Interpretation Act 1984, s 13A

Category: Not Reportable

[2010] FCWA 46

Representation:

Counsel:

Applicant	:	Ms N Hossen
Respondent	:	Mr J Hedges

Solicitors:

Applicant	:	Paterson & Dowding
Respondent	:	Ilberys

Case(s) referred to in judgment(s):

Chapman & Palmer (1978) FLC 90-510 Cook v Langford [2008] FamCAFC 84 FO v HAF [2007] 2 Qd R 138

Koldsjor & Addington [2009] FamCAFC 21
Kowaliw and Kowaliw (1981) FLC 91-092
McGrath and Hard [2009] FCWA 164
MW v Director-General of the Department of Community Services (2008) 244 ALR 205
Norbis v Norbis (1986) FLC 91-712
Pavey and Pavey (1976) FLC 90-051
Todd and Todd (No 2) (1976) FLC 90-008
Van Jole v Cole (2000) 26 Fam LR 228 at 231

[2010] FCWA 46

1 [Ms K] and [Mr F] have been unable to resolve Ms K’s financial claims under
the Family Court Act 1997 arising from the breakdown of their relationship. They also cannot agree on the surname to be used by their son, [Thomas], who is aged 5 years.
2 Mr F asserts the Family Court of Western Australia does not have jurisdiction to
make orders for property settlement and de facto spousal maintenance against him and opposes Ms K’s application for Thomas to be known by the surname “[K-F]”. He seeks the dismissal of Ms K’s application.

Background

3 Ms K is 41 years of age and is a school teacher.
4 Mr F is 55 years of age and is also a qualified teacher, although in recent years he has worked mainly in real estate.
5 The parties met in June 2002 and developed a close personal relationship.
6 In mid 2003 Ms K and Mr F agreed to have a child together and in August 2003, Mr F successfully underwent either wholly or substantially at Ms K’s expense, surgery to reverse a vasectomy. The parties disagree as to the basis upon which Mr F first agreed to have a child with Ms K to which I will return later.
7 In August 2004, Ms K fell pregnant for the second time after earlier losing an unborn child and Thomas was born in April 2005.
8 In December 2004 the parties began living together in the country, a property purchased in Mr F’s sole name in November 2003.
9 There were significant problems in the parties’ relationship and in March 2006, Mr F moved from that property to rental accommodation in town. Ms K remained living at the property with…

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 K and F

Details

AGLC: K and F [2010] FCWA 46
Case: [2010] FCWA 46
Decision Date: 29 APRIL 2010

CaseChat Overview and Summary

The matter of K and F arose in the Family Court of Australia. The parties, K and F, were involved in a de facto relationship and subsequently separated. F sought a declaration that the couple's relationship was a de facto relationship and for the court to determine the division of property between the parties. F also applied to change the surname of their child from the surname of K to the surname of F. K opposed these applications, arguing that the court lacked jurisdiction to determine the de facto property claim and that a change of the child's surname would cause serious injustice.

The primary legal issues before the court were whether it had jurisdiction to determine the de facto property claim and whether a change in the child's surname would cause serious injustice. The court considered whether the relationship between K and F met the criteria for a de facto relationship under the relevant legislation, and if so, whether the court had jurisdiction to determine the division of property. The court also considered the welfare and best interests of the child in deciding whether to grant the application to change the child's surname.

In determining the issues, the court found that the relationship between K and F met the criteria for a de facto relationship and that the court did have jurisdiction to determine the division of property. The court found that a change in the child's surname would not cause serious injustice and was in the best interests of the child. The court ordered that the parties' de facto relationship be recognised and that the property be divided between them in accordance with the principles of the Family Law Act. The court also granted the application to change the child's surname from the surname of K to the surname of F.

The court's final orders were that the relationship between K and F was a de facto relationship, the court had jurisdiction to determine the division of property, and the property be divided between the parties in accordance with the principles of the Family Law Act. The court also ordered that the child's surname be changed from the surname of K to the surname of F.

Orders