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Kazama & Britton

Kazama & Britton

Case [2013] FamCA 4 15 January 2013

Statutory Construction

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FAMILY COURT OF AUSTRALIA

KAZAMA & BRITTON

[2013] FamCA 4

FAMILY LAW – DE FACTO RELATIONSHIP – where the applicant seeks a declaration under s 90RD that the parties were in a de facto relationship – where the parties maintained separate residences but spent significant time together at the respondent’s residence – where the respondent sponsored the applicant to immigrate to Australia and made representations to the Department of Immigration that the parties were in a de facto relationship – discussion of the principles in Nelson v Nelson (1995) 184 CLR 538 – where evidence that would contradict statements made by the respondent to the Department was not accepted – the applicant’s version of the dates of cohabitation is accepted – in the alternative, the applicant’s evidence is preferred leading to the same outcome

Family Law Act 1975 (Cth)

Dawes & Dawes (1990) FLC 92-108
Elias & Elias (1977) FLC 90-267
Ferraro & Ferraro (1993) FLC 92-335
Jonah & White [2011] FamCA 221
Jordan & Jordan (1997) FLC 92-736
Lee Steere & Lee Steere (1985) FLC 91-626
Moby & Schulter (2010) FLC 93-447

Nelson v Nelson (1995) 184 CLR 538

APPLICANT:

Ms Kazama

RESPONDENT:

Mr Britton

FILE NUMBER:

CSC

543

2011

DATE DELIVERED:

15 January 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Cairns

JUDGMENT OF:

Watts J

HEARING DATE:

5 - 6 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Trevino

SOLICITOR FOR THE APPLICANT:

Murray Lyons Solicitors

SOLICITOR FOR THE RESPONDENT:

Litigant in person

Orders

(Orders made 6.11.2012)

DECLARATION AND NOTATION:

Pursuant to s 90RD(2)(a) FLA, I declare that a de facto relationship existed between the Applicant and the Respondent between 9 November 2002 and 9 September 2009.
I will publish my reasons at a later date.

ORDERS AND NOTATIONS:

The Applicant’s costs of this hearing be reserved.
Within 14 days the Applicant file and serve an updated financial statement.
Within 14 days the Respondent file and serve a financial statement together with an affidavit setting out any additional information that he wishes to give about his financial position.
Within 14 days the Respondent give a written authority to the lawyers for the Applicant so they can speak to and receive documents from Mr A, ANZ Bank.
Both parties attend a financial conference with the Registrar on 6 December 2012 at 2pm.
This matter be adjourned for a telephone mention on 13 December 2012 at 9am Qld (10am NSW).
Should the matter remain unresolved, the matter will be set down for hearing commencing 14 March 2013 for 2 days.
The Respondent is granted a certificate under s 128 of the Evidence Act 1995 (Cth) regarding evidence given in these proceedings by him on 6 November 2012 concerning the Respondent signing a Form 40SP with the Department of Immigration and Multicultural Affairs (as it then was) on 11 September 2006. The Registry Manager is to prepare for signature the certificate in accordance with form 1 of the Evidence Regulations annexing the relevant parts of the transcript.

IT IS NOTED…

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 Kazama & Britton

Details

AGLC: Kazama & Britton [2013] FamCA 4
Case: [2013] FamCA 4
Decision Date

CaseChat Overview and Summary

The Family Court of Australia considered an application by Ms Kazama for a declaration under s 90RD of the *Family Law Act 1975* (Cth) that she and Mr Britton were in a de facto relationship. The primary dispute concerned the commencement date of this relationship, with Ms Kazama asserting it began on 9 November 2002 and Mr Britton belatedly contending it commenced in 2006. Both parties maintained separate residences throughout the period in question, with Ms Kazama’s case being that they spent significant time together at Mr Britton’s residence.

The court was required to determine whether a de facto relationship existed between the parties and, if so, from what date. This involved assessing the evidence presented by both parties, particularly in light of conflicting statements made by Mr Britton to the Department of Immigration and Citizenship regarding the nature and duration of his relationship with Ms Kazama. The court also had to consider the principles outlined in *Nelson v Nelson* (1995) 184 CLR 538 in its determination.

Justice Watts accepted Ms Kazama’s version of events regarding the commencement of the de facto relationship, finding it to be more credible than Mr Britton’s. This acceptance was significantly influenced by documentary evidence, including a Form 40SP signed by Mr Britton in 2006, which contained statements about the commencement of their relationship and his intention for Ms Kazama to live with him, contradicting his later assertions. Notes from an interview with a Departmental officer in 2008 also provided details of the relationship that aligned more closely with Ms Kazama’s account. The court found that Mr Britton’s evidence was inconsistent and unreliable, particularly in light of the penalties associated with providing false information to the Department of Immigration.

Pursuant to s 90RD(2)(a) of the *Family Law Act 1975* (Cth), the court declared that a de facto relationship existed between Ms Kazama and Mr Britton from 9 November 2002 to 9 September 2009. The court reserved costs for the hearing and made various orders regarding the exchange of financial statements, attendance at a financial conference, and potential future hearings, indicating that the matter would be adjourned for further mentions and potentially a hearing if unresolved.

Orders