Lee & Hutton

Case [2013] FamCA 745


FAMILY COURT OF AUSTRALIA

LEE & HUTTON [2013] FamCA 745
FAMILY LAW – DE FACTO RELATIONSHIP – where the applicant seeks declarations pursuant to s 90RD about the period of a de facto relationship; whether there is a child of the de facto relationship; and whether one of the parties made substantial contributions – where it was conceded the parties were in a de facto relationship – where it was held the parties’ de facto relationship was for a period just short of two years – where the applicant asserted there was a child of the relationship – where the applicant had two pregnancies, one ending in foetal demise, and the other ended by a termination – where it was held a foetus or embryo was not a child as described in s 90SB(b) – where it was held that the gateway under s 90SB(b) requires a child to be living at the date the order is made – whether the applicant made substantial contributions of a kind referred to in s 90SM(4)(a), (b), or (c) – where it was held that the applicant’s contributions to the welfare of the family constituted by the applicant and respondent were substantial particularly given her contributions in attempting to have a child with the respondent – where a finding was made that a failure to make an order would result in a serious injustice to the applicant

Births, Deaths and Marriages Registration Act 1995 (NSW)
Child Support (Assessment) Act 1989 (Cth)
Family Law Act 1975 (Cth) s 4; 39A; 55A; 60F; 90RC; 90RB; 90RD; 90RG; 90SB; 90SM

Property (Relationships) Act 1984 (NSW)

A v A (family: unborn child) [1974] 1 All ER 755
Aslan v Al Nahyan [2012] NSWSC 57
Attorney-General (QLD) (Ex rel Kerr) v T (1983) 46 ALR 275
Attorney-General for NSW v Perpetual Trustee Co (Ltd) (1952) 85 CLR 237
Barrett v Coroner’s Court of South Australia [2010] SASCFC 70
Brown v Brown (1905) 3 CLR 373
Dahl & Hamblin (2011) FLC 93-480
Ex parte McLean (1930) 43 CLR 472
Garning & Director-General, Department of Communities, Child Safety and Disability Services & Anor [2013] FamCAFC 28
In Re the estate of the late K (1996) 5 Tas R 365
In the Marriage of Diessel (1980) 6 Fam LR 1
In the marriage of F and F (1989) FLC 92-031
In the marriage of G and G (1984) FLC 91-582
In the marriage of Mehmet and Mehmet (No. 2) (1987) FLC 91-801
In the marriage of Simpson and Hamlin (1984) FLC 91-576
In the marriage of Shaw and Shaw (1989) FLC 92-010
Jacob & Lawrence [2013] FamCA 188
Kennon v Kennon (1997) FLC 92-757
Miller v Miller (1978) 141 CLR 269
Miller & Trent [2011] FMCAfam 324
R v Iby [2005] NSWCCA 178
Registrar of Titles (WA) v Franzon (1975) 132 CLR 611
Street v Bell (1993) DFC 95-144
Talbot & Norman (2012) FLC 93-504
V and K [2005] FCWA 80
Victoria v Commonwealth (1937) 58 CLR 618
Wall &…

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AGLC
Lee & Hutton [2013] FamCA 745
Case
[2013] FamCA 745
Decision Date

CaseChat Overview and Summary

The Family Court of Australia considered an application by Ms. Lee against Mr. Hutton concerning declarations about their de facto relationship. The applicant sought declarations regarding the duration of the relationship, the existence of a child of the relationship, and whether she had made substantial contributions, all of which were relevant to establishing the court's jurisdiction to make property adjustment orders under the *Family Law Act 1975* (Cth). It was conceded by the parties that a de facto relationship had existed between them.

The court was required to determine whether the de facto relationship met the jurisdictional thresholds set out in section 90SB of the *Family Law Act 1975*. Specifically, the court had to ascertain if the relationship lasted for at least two years, if there was a child of the relationship, or if the applicant had made substantial contributions to the welfare of the family and that a failure to make an order would result in serious injustice. The applicant also sought a declaration that the parties were ordinarily resident in New South Wales for more than a third of the relationship's duration.

The court found that the de facto relationship lasted for a period just short of two years, thus not satisfying the first gateway. Regarding the existence of a child, the court held that neither a foetal demise nor a termination of pregnancy constituted a "child" as defined by section 90SB(b) of the Act, and that the gateway requires a child to be living at the date the order is made. However, the court determined that the applicant's contributions to the welfare of the family, particularly in her attempts to have a child with the respondent, were substantial. Consequently, the court found that a failure to make an order would result in serious injustice to the applicant, thereby satisfying the third jurisdictional gateway.

The court made declarations that a de facto relationship existed between the parties from 8 February 2009 to 24 January 2011, and that the applicant had made substantial contributions of a kind referred to in section 90SM(4)(c) of the Act. A declaration was also made that a failure to make an order under section 90SM would result in serious injustice to the applicant, and that each party was ordinarily resident in New South Wales during the de facto relationship. The application for declarations was otherwise dismissed, and the matter was listed for further court events.

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