Locke and Norton - [2014] FamCA 811

FAMILY COURT OF AUSTRALIA

LOCKE & NORTON

[2014] FamCA 811

FAMILY LAW – DE FACTO RELATIONSHIP – Application for a declaration regarding the existence of a de facto relationship – Where the respondent denies that there was ever any de facto relationship – Where the respondent is a man of considerable wealth and provided financial support to the applicant – Consideration of the circumstances set out in s 4AA(2) of the Family Law Act 1975 (Cth) – Where no property was jointly owned by the parties – Where it is found that the parties did not have a common residence – Where it is found that there was no mutual commitment to a shared life – Application seeking declaration of a de facto relationship dismissed.

Evidence Act 1995 (Cth) s 128
Family Law Act 1975 (Cth), ss 4AA, 90RB, 90RD
Relationships Register Act 2010 (NSW) s 5

Norton & Locke [2013] FamCAFC 202

APPLICANT:

Ms Locke

RESPONDENT:

Mr Norton

FILE NUMBER:

SYC

2828

2013

DATE DELIVERED:

24 September 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

1, 2, 3, 4 and 5 September 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr White SC

SOLICITOR FOR THE APPLICANT:

Michael Conley Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Kirk QC with Ms Bridger

SOLICITOR FOR THE RESPONDENT:

Barraket Stanton Lawyers

Orders

IT IS ORDERED

That the application seeking a declaration that the parties were in a de facto relationship is dismissed.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2828 of 2013

Ms Locke

Applicant

And

Mr Norton

Respondent

REASONS FOR JUDGMENT

Ms Locke (“the applicant”) and Mr Norton (“the respondent”) were in a relationship from about late 2007 or early 2008 until 2012. The applicant says that the relationship was a de facto relationship. The respondent says it was not.
The nature of the relationship is the only issue for determination. It is not suggested by either party that the relationship changed in character during its currency. If the relationship was a de facto relationship, then the de facto relationship was on foot on and after 1 March 2009.

the relevant legislation

The Family Law Act 1975 (Cth) (“the Act”) gives the Family Court of Australia jurisdiction to hear and determine property settlement proceedings between de facto couples provided that the relationship between the couple broke down on or after 1 March 2009. If the relationship ended before 1 March 2009 the Court has no jurisdiction to hear and determine an application for division of property.
It is common ground that the Court has power to determine whether a de facto relationship existed at a relevant time.
If there was no de facto relationship, then the applicant has no claim pursuant to the Act.
Section 4AA of the Act sets…

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 Locke and Norton

Details

AGLC: Locke and Norton [2014] FamCA 811
Case: [2014] FamCA 811
Decision Date: 24 September 2014

CaseChat Overview and Summary

In the matter of *Locke and Norton*, Rees J of the Supreme Court of New South Wales was required to determine an application seeking a declaration that the applicant and the respondent were in a de facto relationship. The applicant sought this declaration in the context of an application to register their relationship under the *Relationships Register Act 2010* (NSW).

The primary legal issue before the Court was whether the applicant and the respondent were in a de facto relationship for the purposes of the *Relationships Register Act 2010* (NSW). This involved considering the criteria for registration under section 5 of the Act, specifically whether the parties met the definition of "a relationship as a couple" and whether any of the exclusionary provisions applied. A secondary consideration, though not determinative, was the absence of children of the relationship.

Rees J dismissed the application, finding that the relationship could not have been registered under the *Relationships Register Act 2010* because the respondent was married to another person at all relevant times, which is a bar to registration under section 5(3)(a) of the Act. Furthermore, the Court found that the parties did not present themselves to the public as being in a de facto relationship. Evidence from friends indicated differing perceptions, with the applicant viewing the respondent as her "partner" while the respondent consistently introduced the applicant by her given name, and in some instances, as his "girlfriend." The Court noted that the applicant's friends' affidavits contained inaccuracies regarding the respondent's use of the term "partner," and that no independent evidence supported the applicant's assertion that the respondent publicly represented her as such.

Orders

Orders of the court

IT IS ORDERED

That the application seeking a declaration that the parties were in a de facto relationship is dismissed.

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

Section 5 of that Act sets out the criteria for registration in the following terms:5 Eligibility for registration (1) Two adults who are in a relationship as a couple, regardless of their sex, may apply to the Registrar for registration of their relationship. (2) A relationship cannot be registered unless at least one of the adults resides in New South Wales. (3) A relationship cannot be registered if: (a) either adult is married, or (b) either adult is registered under this Act or a corresponding law as being in a registered relationship or an interstate registered relationship, or (c) either adult is in a relationship as a couple with another person, or (d) the adults are related by family. Since, at all relevant times, the respondent was married to another person, the relationship could not have been registered pursuant to the provisions of the Relationships Register Act. Section 90RB of the Act provides that : For the purposes of this Part, a child is a child of a de facto relationship if the child is the child of both of the parties to the de facto relationship. The Full Court, hearing an appeal in this matter in relation to an interlocutory matter, commented:there are no children of the relationship, nor is it contended that either party otherwise has a child relevant to the proceedings. The applicant and the respondent each had adult children from previous relationships. They had no children of their relationship. This consideration therefore does not arise. The nature of the relationship of the applicant and the respondent with the adult children of each of them can be considered in the context of the consideration of the reputation and public aspects of the relationship. The applicant and the respondent had quite different perceptions of the public reputation of their relationship. The applicant saw herself as the “partner” of the respondent. The respondent regarded her as his girlfriend. A number of the applicant’s friends swore affidavits and were cross examined. Ms Q, a friend of the applicant who knew the respondent well, in cross-examination, agreed that the statement in her affidavit that the respondent, on a number of occasions, had introduced the applicant as his “partner” was incorrect. In her oral evidence she said that the respondent had never used that term. She said that the respondent introduced the applicant by her given name only. Ms U, in her affidavit, said that from the time the applicant started having the relationship with the respondent, the applicant said that he introduced her as his girlfriend. Ms S, in her affidavit, gave evidence that the applicant referred to the respondent as her partner. However, although she had socialised with the parties together, she did not say that the respondent referred to the applicant as his partner. Mr M had dined with the parties on the occasion of the applicant’s 49th birthday but he does not say that the respondent referred to the applicant as his partner. The applicant’s daughter, Ms R, does not suggest that the respondent ever referred to the applicant as his partner.