Kersten and Taylor

[2014] FCCA 65

FEDERAL CIRCUIT COURT OF AUSTRALIA

KERSTEN & TAYLOR [2014] FCCA 65

Catchwords:
FAMILY LAW – Whether parties were a de facto couple – for what period were they a de facto couple.

Legislation:

Family Law Act 1975, ss.4AA, 90RD

Jonah & White [2011] FamCA 221

Applicant: MS KERSTEN

Respondent: MR TAYLOR

File Number: BRC 2794 of 2012

Judgment of: Judge Baumann

Hearing dates: 5 July and 15 August 2013

Date of Last Submission: 30 August 2013

Delivered at: Brisbane

Delivered on: 24 January 2014

REPRESENTATION

Counsel for the Applicant: Mr Theobald

Solicitors for the Applicant: Slater & Gordon

Appearance for the Respondent: Appeared on own behalf

ORDERS

1. The Court declares, pursuant to ss.90RD(1) and (2) of the Family Law Act 1975, that:

   (a)A de facto relationship existed between the parties;

   (b)Such relationship commenced in January 2005; and,

   (c)Such relationship continued from commencement until December, 2010.

2. The proceedings be listed for further directions at 9:30am on 20 February 2014.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 2794 of 2012

MS KERSTEN

Applicant

And

MR TAYLOR

Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant, Ms Kersten, and the Respondent, Mr Taylor, were in a relationship. The parties disagree on the nature of the relationship and its length.

2. As a result, the Court decided that a discrete hearing would take place on the jurisdictional question about whether a declaration, as sought by the Applicant, that “the parties were living in a de facto relationship between 2005 and May 2011” should be made. Clearly, the Respondent, who was unrepresented at the hearing, opposes such a declaration.

The Hearing

1. Evidence was taken on 5 July 2013 and 15 August 2013. Counsel for the Applicant, Mr Theobald, produced written submissions on 15 August 2013 and made some further oral submissions after the cross-examination of the Respondent’s witness was completed. The Court caused a transcript of the further oral submissions to be produced and made available to the Respondent. Thereafter, written submissions from the Respondent were filed on 30 August 2013. The Court regrets the delay in providing these reasons.

2. The Respondent, although articulate and passionate about his position, struggled to grasp the elements of effective cross-examination. I allowed him the use of a former legal practitioner as a McKenzie Friend for the first day of hearing. The gentlemen did not attend on the adjourned date of hearing. I was informed from the bar table that Mr Taylor suffers “Asperger Syndrome” – and that this manifests in intense behaviour at times and some lack of focus. The transcript will demonstrate that the Respondent was given guidance by the Bench at times, consistent with the endeavour to ensure a fair hearing took place. The Respondent was always courteous and his written submissions do reveal well organised thoughts.

3. I also had the opportunity to observe both parties under cross-examination. Whilst…