Kellner and Kellner and Anor - [2013] FCCA 2184

FEDERAL CIRCUIT COURT OF AUSTRALIA

KELLNER & KELLNER & ANOR

[2013] FCCA 2184

Catchwords:
FAMILY LAW – Whether or not de facto relationship exists determined as a threshold issue – credit of respondent poor – declaration that de facto relationship existed.

Legislation:
Family Law Act 1975 (Cth), ss.4AA, 44(3), 90RD, 90SK

Family Law Amendment (De Facto Financial Matters and Other Measures) Act2008 (Cth)

Moby & Schulter (2010) FLC 93-447
Jonah & White [2012] FamCAFC 200

Applicant:

MS KELLNER

First Respondent:

MR G KELLNER

Second Respondent:

MR A KELLNER

File Number:

DNC 439 of 2012

Judgment of:

Judge Harland

Hearing dates:

19, 20, 21 June 2013 and 16 July 2013

Date of Last Submission:

5 September 2013

Delivered at:

Darwin

Delivered on:

17 December 2013

REPRESENTATION

Counsel for the Applicant:

Ms Farmer

Solicitors for the Applicant:

Withnalls Lawyers

Counsel for the First Respondent:

Mr Rowbottam

Solicitors for the First Respondent:

Cecil Black Family Lawyers

The Second Respondent:

No appearance

ORDERS

The Court declares that pursuant to section 90RD of the Family Law Act 1975 (“Cth”) from 8 July 1990 the parties were in a de facto relationship until 12 July 2012.
The Court declares that pursuant to section 90SK of the Family Law Act 1975 (“Cth”) both parties were ordinarily resident in the Northern Territory of Australia for more than one third of the de facto relationship.
That the parties may relist the matter upon giving the other party seven (7) days written notice of their intention to do so.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT DARWIN

DNC 439 of 2012

MS KELLNER

Applicant

And

MR G KELLNER

First Respondent

MR A KELLNER

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant, Ms Kellner, (“the applicant”) commenced proceedings seeking a property adjustment. In his response Mr G Kellner (“the respondent”) sought orders with respect to the parties’ business partnership. He did not specifically raise the issue of jurisdiction. However it was clear from his affidavit evidence that the parties divorced in 1990. His primary position was that they were only business partners and never lived in a de facto relationship. At the hearing he proffered alternatives, that if they were in a de facto relationship, it either ended in 2000 or 2004 and therefore the application was out of time.
The respondent sought that a declaration not be made. The hearing took place over three and a half days. The parties filed written submissions.

Background

The applicant was born on (omitted) 1954. She is aged 59.
The respondent was born on (omitted) 1945. He is aged 68.
The applicant says she met the respondent on (omitted) 1986 in Australia. She says they started living together on (omitted) August 1986 and were married on (omitted) September 1986. The applicant says they separated on 12…

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 Kellner and Kellner and Anor

Details

AGLC: Kellner and Kellner and Anor [2013] FCCA 2184
Case: [2013] FCCA 2184
Decision Date: 17 December 2013

CaseChat Overview and Summary

In the matter of *Kellner and Kellner and Anor*, heard before Judge Harland, the dispute concerned the determination of a de facto relationship and the jurisdiction of the court to make property orders. The applicants sought declarations regarding the existence and duration of their de facto relationship and confirmation of the court's jurisdiction to hear their property settlement proceedings.

The primary legal issues before the court were whether the parties were in a de facto relationship for the purposes of the *Family Law Act 1975* (Cth) and, if so, whether the court had jurisdiction to make property orders under that Act. Specifically, the court was required to consider the relevant provisions of the Act concerning the commencement and termination of de facto relationships and the requirements for ordinary residence within a particular Australian jurisdiction.

Judge Harland found that the parties had been in a de facto relationship from 8 July 1990 until 12 July 2012, pursuant to section 90RD of the *Family Law Act 1975*. Furthermore, the court declared that both parties had ordinarily resided in the Northern Territory of Australia for more than one third of the duration of their de facto relationship, satisfying the jurisdictional requirements of section 90SK of the Act.

Consequently, the court made declarations to this effect. The parties were granted leave to relist the matter upon providing seven days' written notice to the other party, indicating that further proceedings, likely concerning property division, could be initiated.

Orders

Orders of the court

The Court declares that pursuant to section 90RD of the Family Law Act 1975 (“Cth”) from 8 July 1990 the parties were in a de facto relationship until 12 July 2012.

The Court declares that pursuant to section 90SK of the Family Law Act 1975 (“Cth”) both parties were ordinarily resident in the Northern Territory of Australia for more than one third of the de facto relationship.

That the parties may relist the matter upon giving the other party seven (7) days written notice of their intention to do so.

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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