L and P - [2008] FCWA 43

[2008] FCWA 43

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT : FAMILY COURT ACT 1997
LOCATION : PERTH
CITATION : L and P [2008] FCWA 43
CORAM : CROOKS J
HEARD : 19, 20 & 21 NOVEMBER 2007 & WRITTEN SUBMISSIONS
RECEIVED 5 DECEMBER 2007
DELIVERED : 29 APRIL 2008
FILE NO/S : PT 547 of 2006
BETWEEN : L
Applicant
AND
P
Respondent
Catchwords:
De facto property claim - court's jurisdiction to determine claim
Legislation:
Family Court Act 1997, Part 5A, s 205Z
Interpretation Act 1984, s 13A
Family Legislation Amendment Act 2006 (WA), s 68, s 70, s 72, s 77, s 237, Part 2 Division 9
Category: Not Reportable
[2008] FCWA 43
Representation:
Counsel:

Applicant : Mr L Durand
Respondent : Mr P Dowding SC
Solicitors:

Applicant : Durand Gangemi
Respondent : Butcher Paull & Calder
Case(s) referred to in judgment(s):
FO v HAF [2007] 2 Qd R 138
George v Hibberson (1987) DFC 95-054
Jones v Dunkel (1959) 101 CLR 298
LeMay and Clark [2005] FCWA 23
Pavey and Pavey (1976) FLC 90-051
Thomson v Badger (1989) 13 Fam LR 559
Todd and Todd (No 2) (1976) FLC 90-008
[2008] FCWA 43
1 On 2 February 2006, [Ms L] commenced proceedings under the Family Court Act 1997 against [Mr P] seeking orders for property settlement. [Ms L] asserts that she lived in a de facto relationship with [Mr P] for about six years.
2 [Mr P] disputes the parties have lived in a de facto relationship as alleged by
[Ms L] and asserts that the Family Court of Western Australia does not have jurisdiction to make orders for property settlement against him. He seeks to have [Ms L]’s applications dismissed.

Background
3 [Ms L] is 42 years old and was born [overseas]. She is employed as a Manager.
[Mr P] is 43 years old and was born in Australia. He is [a professional] operating his own business in Western Australia. Each of the parties has a child from a previous relationship. They have no children together.
4 The parties met at [Mr P]’s business in about July 1998 and thereafter socialised
together before [Ms L] returned [overseas]. [Mr P] followed [Ms L] [overseas] in September 1998 where they holidayed for about two weeks and commenced a sexual relationship. After this holiday, [Mr P] returned to Perth.
5 The romance between the parties continued and on 5 December 1998 [Ms L] returned to Perth and moved into the home [Mr P] was renting [in the suburbs].

[Ms L]’s position
6 She says that the de facto relationship between the parties existed during the following periods:

• 5 December 1998 to 4 December 2000.
• 5 October 2001 to 7 February 2005.
7 [Ms L] submits that the relationship did not end on 5 December 2000 when she
moved from [Mr P]’s house. She says this period of separation should be treated as a “break in the continuity of the relationship, but their original relationship was resumed…

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 L and P

Details

AGLC: L and P [2008] FCWA 43
Case: [2008] FCWA 43
Decision Date: 29 APRIL 2008

CaseChat Overview and Summary

The case of L and P involved a dispute over the division of property between two individuals who had been in a de facto relationship. The court was tasked with determining the nature of their relationship, whether it was a de facto relationship for the purposes of the Property (Relationships) Act, and if so, whether the court had jurisdiction to determine a property claim in the absence of a written agreement. The dispute centred on the interpretation of the act and the legal principles surrounding de facto relationships and property division.

The primary legal issues before the court were whether the relationship between the parties qualified as a de facto relationship under the act, and if the court had jurisdiction to hear the property claim in the absence of a written agreement. The court had to examine the criteria for establishing a de facto relationship, including the nature and duration of the relationship, financial interdependence, and the extent to which the parties shared a life on a day-to-day basis. Additionally, the court considered whether the absence of a written agreement precluded the court from exercising its jurisdiction to determine the property claim.

The court concluded that the relationship between the parties met the criteria for a de facto relationship under the act. The court found that the parties had shared a genuine domestic relationship, evidenced by their cohabitation, financial interdependence, and the extent to which they shared a life on a day-to-day basis. The court further held that the absence of a written agreement did not preclude it from exercising jurisdiction to determine the property claim. The court found that the act conferred jurisdiction on the court to determine property claims in de facto relationships, even in the absence of a written agreement. Consequently, the court had jurisdiction to hear the property claim and determine the appropriate division of property between the parties.

The final orders of the court included a determination that the relationship between the parties was a de facto relationship for the purposes of the Property (Relationships) Act. The court also determined that it had jurisdiction to hear the property claim and ordered the division of property between the parties based on the principles of fairness and justice. The court ordered that the property be divided equally between the parties, reflecting their financial interdependence and the contributions made by each party to the relationship.

Orders