LAMOTHE & SAM - [2019] FamCA 501

FAMILY COURT OF AUSTRALIA

LAMOTHE & SAM

[2019] FamCA 501

FAMILY LAW – PROPERTY – Where the de facto relationship had two distinct periods separated by seven years – Where the first relationship was eleven years and the second was two years – Where the first relationship was prior to the Court’s jurisdiction over de facto relationships – Where the significant asset was acquired at the beginning of the second period of the relationship – Whether contributions during the first period can be taken into account.

Family Law Act 1975 (Cth) ss 90SF, 90SM

Dahl & Hamblin (2011) FLC 93-480
Kennon & Kennon (1997) FLC 92-757

APPLICANT:

Ms Lamothe

RESPONDENT:

Mr Sam

FILE NUMBER:

SYC

4095

2014

DATE DELIVERED:

30 July 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

15 – 18 July 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Gibbons

SOLICITOR FOR THE APPLICANT:

Maveston Legal

COUNSEL FOR THE RESPONDENT:

Ms McIntosh

SOLICITOR FOR THE RESPONDENT:

Ktenas Solicitors & Barristers

Orders

IT IS ORDERED

That within three months of the date of these Orders, the respondent pay to the applicant the sum of $90,222.
In the event that the respondent does not pay the sum referred to in Order 1 by the due date, the respondent shall do all acts and things required to sell the property at X Street, Suburb L and to pay the proceeds of the sale in the following manner and priority:
(a)      In payment of any registered mortgage;
(b)In payment of the costs of sale including legal fees and agents’ commission;
(c)      In payment of the sum of $90,222 to the applicant;
(d)      In payment of the balance remaining to the respondent.
That, in relation to any application for costs, the applicant for costs file and serve the application for costs, an affidavit of the evidence upon which he or she relies and written submissions within one month of the date of these Orders.
That the respondent to any costs application file and serve a response, an affidavit of evidence upon which he or she relies and written submissions within a further period of one month.
That the application for costs be dealt with by the Honourable Justice Rees in chambers.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym <Sam & Lamothe> has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4095 of 2014

Ms Lamothe

Applicant

And

Mr Sam

Respondent

REASONS FOR JUDGMENT

Ms Lamothe…

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 LAMOTHE & SAM

Details

AGLC: LAMOTHE & SAM [2019] FamCA 501
Case: [2019] FamCA 501
Decision Date: 30 July 2019

CaseChat Overview and Summary

In the matter of *Lamothe & Sam*, Rees J of the Family Court of Australia considered a property dispute arising from a de facto relationship that had two distinct periods of cohabitation separated by seven years. The first period of the relationship lasted eleven years, and the second period lasted two years. The primary asset in contention was acquired at the commencement of the second period of the relationship.

The central legal issue before the Court was whether contributions made by the parties during the first period of their de facto relationship, which predated the Court's jurisdiction over de facto relationships, could be taken into account when determining the property settlement for the second period.

Rees J reasoned that the Family Law Act 1975 (Cth) permits the Court to consider the entire history of the relationship when making property adjustments, even if parts of that history fall outside the Court's current jurisdictional reach. The Court found that the seven-year separation did not extinguish the relevance of the earlier contributions, particularly given the subsequent recommencement of the de facto relationship. The Court ordered that the respondent pay the applicant the sum of $90,222. In default of this payment, the respondent was to sell the property at X Street, Suburb L, with the proceeds to be applied first to any mortgage, then to the costs of sale, then to the applicant's payment, and any balance to the respondent. Provisions were also made for the process of any subsequent costs applications.

Orders

Orders of the court

IT IS ORDERED

That within three months of the date of these Orders, the respondent pay to the applicant the sum of $90,222.

In the event that the respondent does not pay the sum referred to in Order 1 by the due date, the respondent shall do all acts and things required to sell the property at X Street, Suburb L and to pay the proceeds of the sale in the following manner and priority:

(a) In payment of any registered mortgage;

(b) In payment of the costs of sale including legal fees and agents’ commission;

(d) In payment of the balance remaining to the respondent.

That, in relation to any application for costs, the applicant for costs file and serve the application for costs, an affidavit of the evidence upon which he or she relies and written submissions within one month of the date of these Orders.

That the respondent to any costs application file and serve a response, an affidavit of evidence upon which he or she relies and written submissions within a further period of one month.

That the application for costs be dealt with by the Honourable Justice Rees in chambers.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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