Kelly and Temple - [2011] FMCAfam 683

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KELLY & TEMPLE

[2011] FMCAfam 683

FAMILY LAW – De facto – same sex couple – whether de facto relationship existed – whether de facto relationship ended before 1 March 2009.

Family Law Act 1975, ss.4AA, 44, 90SB, 90SE, 90SM, 90SK
Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008, ss.86, 86A

Aitken & Deakin [2010] FMCAfam 35
Baker & Landon [2010] FMCAfam 280
Dakin & Sansbury [2010] FMCAfam 628
Jones v Dunkel (1959) 101 CLR 298

Applicant:

MR KELLY

Respondent:

MR TEMPLE

File Number:

SYC 7784 of 2010

Judgment of:

Monahan FM

Hearing dates:

7 April 2011, 9 May 2011 and 30 May 2011

Date of Last Submission:

30 May 2011

Delivered at:

Sydney

Delivered on:

8 November 2011

REPRESENTATION

Counsel for the Applicant:

Mr Serisier

Solicitors for the Applicant:

Grover Law

Counsel for the Respondent:

Mr Quinn

Solicitors for the Respondent:

Cunningham Legal

ORDERS

THE COURT DECLARES THAT:

Pursuant to s.90RD Family Law Act 1975 and for the purposes of an order under s.90SM of the Act, that the Applicant and the Respondent were in a de facto relationship which commenced in March 2006 and ended in July 2009.

AND THE COURT ORDERS THAT:

The substantive proceedings be adjourned for mention hearing on a date and time to be fixed (“the mention hearing”).
The question of costs be reserved.

AND THE COURT NOTES THAT:
(A)The purpose of the mention hearing is to make further directions in the matter, including whether the matter would benefit from a referral to a Conciliation Conference or private mediation and whether the matter should be listed for Final Hearing.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 7784 of 2010

MR KELLY

Applicant

And

MR TEMPLE

Respondent

REASONS FOR JUDGMENT

Introduction

The Family Law Act 1975 (“the Act”) was significantly amended, with effect from 1 March 2009, to enable Courts exercising jurisdiction under the Act to make orders under Part VIIIAB in respect of spouse maintenance pursuant to s.90SE of the Act and/or the division of property pursuant to s.90SM of the Act between parties to a de facto relationship after the breakdown of their de facto relationship. This change followed the passage of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 and a reference of the necessary constitutional powers by the referring states, including New South Wales.
The parties in this matter are in dispute as to whether their former de facto relationship falls within this Court’s jurisdiction to determine property and financial disputes under the Act and, if so, whether MR KELLY (“the Applicant”) should be entitled to the property orders sought. Only the former issue is considered in this decision.
By his Initiating Application filed 10 December 2010 (“the Application”), the Applicant seeks various property orders arising out of…

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 Kelly and Temple

Details

AGLC: Kelly and Temple [2011] FMCAfam 683
Case: [2011] FMCAfam 683
Decision Date: 8 November 2011

CaseChat Overview and Summary

The case of Kelly and Temple involved a dispute regarding the existence of a de facto relationship for the purposes of the Family Law Act 1975. The applicant sought a declaration that she and the respondent were in a de facto relationship, and the respondent contested this assertion. The matter was heard in the Federal Circuit Court of Australia.

The primary legal issue before the court was whether the applicant and respondent were in a de facto relationship, as defined under section 90AA of the Family Law Act. The court had to consider the nature and duration of the relationship, the degree of financial interdependence, and whether the parties were not married to each other, among other factors. The court needed to determine if the relationship met the criteria for a de facto relationship for the purposes of making an order under section 90SM of the Act.

The court found that the applicant and respondent had a de facto relationship which commenced in March 2006 and ended in July 2009. The court took into account the evidence presented by both parties, including the nature and duration of their relationship, the degree of financial interdependence, and the fact that they were not married to each other. The court considered that the relationship met the criteria for a de facto relationship under the Family Law Act. The court also noted that the matter would benefit from a referral to a Conciliation Conference or private mediation and ordered that the substantive proceedings be adjourned for a mention hearing.

The court made a declaration that the applicant and respondent were in a de facto relationship for the purposes of an order under section 90SM of the Family Law Act, and ordered that the substantive proceedings be adjourned for a mention hearing. The question of costs was reserved, and the purpose of the mention hearing was to make further directions in the matter.

Orders

Orders of the court

THE COURT DECLARES THAT:

Pursuant to s.90RD Family Law Act 1975 and for the purposes of an order under s.90SM of the Act, that the Applicant and the Respondent were in a de facto relationship which commenced in March 2006 and ended in July 2009.

AND THE COURT ORDERS THAT:

The substantive proceedings be adjourned for mention hearing on a date and time to be fixed (“the mention hearing”).

The question of costs be reserved.

AND THE COURT NOTES THAT:

(A) The purpose of the mention hearing is to make further directions in the matter, including whether the matter would benefit from a referral to a Conciliation Conference or private mediation and whether the matter should be listed for Final Hearing.

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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