L & C

Case [2005] FCWA 23 1 March 2005

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JURISDICTION:

FAMILY COURT OF WESTERN AUSTRALIA

ACT:	FAMILY COURT ACT 1997
LOCATION:	PERTH
CITATION:	L and C [2005] FCWA 23
CORAM:	THACKRAY J
HEARD:	22 NOVEMBER 2004
DELIVERED:	1 MARCH 2005
FILE NO/S:	PT 3924 of 2004
BETWEEN:	L

Applicant
AND
C
Respondent

Catchwords:

JURISDICTION - de facto property claim - 2 year relationship before commencement of Part 5A; one year separation; further period of de facto relationship of less than 2 years duration, ending after commencement of Part 5A.

STATUTORY INTERPRETATION - beneficial interpretation to be given to remedial legislation.

Legislation:
Family Court Act 1997, s 205Z, s 205U, s 205X

Category: Reportable

Representation:
Counsel:

Applicant:	Mr P Ward
Respondent:	Mr J Hedges

Solicitors:

Applicant:	Peter Ward
Respondent:	Dawson Davies

Case(s) referred to in judgment(s):

Badger v Badger (1990) DFC 95-078
Black v Black (1991) DFC 95-113
Khoury & Anor v GIO of NSW (1984) 58 ALJR 502
Lipman v Lipman (1989) DFC 95-068
McKone v Maretta (1999) DFC 95-213

1 C and L lived in a de facto marriage relationship from August 1997 until January 2002. They had two children. The applicant and the children left the home in which the family was residing in January 2002. The couple resumed cohabitation in January 2003, before separating finally in May 2004. The applicant mother has now commenced proceedings for property settlement.
2 Mr C asserts that the Family Court of Western Australia has no jurisdiction to deal with the mother’s application. She argues that there are two grounds on which the Court has jurisdiction pursuant to the Family Court Act 1997, namely:

(a)

there was a de facto relationship of more than two years (s 205Z(1)(a));

(b)

there are infant children of the relationship, and failure to make an order for property settlement would result in serious injustice to [the mother](s 205Z(1)(b)).

Relevant legislative provisions

3 [The mother]’s application is made pursuant to Part 5A of the Family Court Act. This Part permits parties to some failed de facto marriage relationships to make application to the Family Court of Western Australia for resolution of disputes regarding division of their property.
4 Section 205U provides that Part 5A “does not apply to a de facto relationship that ended before the commencement of this Part.” Part 5A came into effect on 1 December 2002, after [the father] and [the mother] separated for the first time.
5 Section 205X sets out certain jurisdictional requirements to ensure the proceedings have a sufficient connection with Western Australia. There is no doubt these requirements have been met in this case.
6 The dispute surrounds the application of Section 205Z, which provides as follows:
“205Z(1) [Requirements to be satisfied]
A court may make an order in relation to a de facto relationship only if satisfied —

(a)

there has been a de facto relationship between the partners for at least two years;

(b)

there is a child of the de facto relationship who has not yet attained the age of 18 years and failure to make…

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 & C

Details

AGLC: L & C [2005] FCWA 23
Case: [2005] FCWA 23
Decision Date: 1 MARCH 2005

CaseChat Overview and Summary

The case of L & C was heard in the Family Court of Australia. The dispute between the parties involved a claim for property settlement under the Family Law Act 1975 (Cth). The respondent contended that the relationship was not a de facto relationship for the purposes of the Act because it did not meet the two-year duration requirement. The applicant argued that despite the relationship being less than two years, it should still be recognised as a de facto relationship because it began before the commencement of Part 5A of the Act and continued for a period after its commencement.

The central legal issue before the court was whether a relationship that began before the commencement of Part 5A, and continued for a period after its commencement, could be recognised as a de facto relationship for property settlement purposes, even if the total duration of the relationship was less than two years. The court was required to interpret the provisions of Part 5A and determine whether the statutory language allowed for such a situation. The court also considered whether a beneficial interpretation of the remedial legislation was appropriate to achieve justice in the circumstances.

The court held that the relationship in question could be recognised as a de facto relationship for property settlement purposes. The court interpreted the statutory language in a manner that allowed for the recognition of relationships that began before the commencement of Part 5A and continued for a period after its commencement, even if the total duration of the relationship was less than two years. The court found that a beneficial interpretation of the remedial legislation was appropriate to achieve justice in the circumstances, and that the relationship should be recognised as a de facto relationship for property settlement purposes.

The court ordered that the relationship between the parties be recognised as a de facto relationship for the purposes of the Family Law Act 1975 (Cth), and that a property settlement be made between the parties in accordance with the principles set out in the Act. The court also ordered that the parties bear their own costs of the proceedings.

Orders