Malcher and Seares - [2012] FamCA 643

FAMILY COURT OF AUSTRALIA

MALCHER & SEARES

[2012] FamCA 643

FAMILY LAW – DE FACTO RELATIONSHIP – whether lasting two years – declaration that a de facto relationship existed

Family Law Act 1975 (Cth) ss 4AA, 90SB, 90SM,
Property (Relationships) Act 1984 (NSW) ss 4, 4(1)(a), 5(1)(b)

Bar-Mordecai v Hillston [2004] NSWCA 65
Barnes v De Jesus [2001] NSWSC 19
Hayes v Marquis [2008] NSWCA 10
Jonah & White (2011) FamCA 221
Petersen v Gregory [2007] NSWSC 8
Roy v Sturgeon (1986) 11 NSWLR 454
Ye v Fung [2006] NSWSC 243

APPLICANT:

Mr Malcher

RESPONDENT:

Ms Seares

FILE NUMBER:

SYC

7615

2011

DATE DELIVERED:

3 August 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Stevenson J

HEARING DATE:

11 July 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Obrart

SOLICITOR FOR THE APPLICANT:

Eddy Neumann Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Miller

SOLICITOR FOR THE RESPONDENT:

Paltos Briggs Family Lawyers

Orders

That pursuant to section 90RD of the Family Law Act 1975 it is declared that a de facto relationship existed between Mr Malcher and Ms Seares for a period of at least two years between June 2007 and November 2011.
That by the court’s own motion it is ordered that the proceedings are referred to Registrar George, the docket Registrar, for mention and further directions including the appointment of a conciliation conference on a date to be advised by the Registrar.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Malcher and Seares 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 7615 of 2011

Mr Malcher

Applicant

And

Ms Seares

Respondent

REASONS FOR JUDGMENT

The Proceedings

On 15 December 2011 the applicant, Mr Malcher, commenced proceedings for alteration of property interests pursuant to s 90SM of the Family Law Act 1975. He alleged that he and the respondent, Ms Seares, lived in a de facto relationship for a period of at least two years.
In final submissions counsel for the applicant contended that the parties lived in a de facto relationship between June 2007 and November 2011. The respondent conceded that a de facto relationship existed between December 2010 and November 2011. The discrete issue for determination by me was whether the parties’ de facto relationship subsisted for a total period of at least two years.

Background

The applicant was born in 1978 and is now 33 years old. The respondent was born in 1962 and is currently 50 years of age. The parties met in November 2004 and soon entered into a sexual relationship.
When the parties began their relationship the applicant lived at Suburb R with his wife, son and step-daughter. The respondent lived at Suburb D with her husband.
In June 2005 the applicant separated from his wife, who had by then given birth to their second child. He lived with his parents at Suburb R until late 2005,…

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 Malcher and Seares

Details

AGLC: Malcher and Seares [2012] FamCA 643
Case: [2012] FamCA 643
Decision Date

CaseChat Overview and Summary

Mr Malcher (the applicant) commenced proceedings against Ms Seares (the respondent) seeking an alteration of property interests under section 90SM of the *Family Law Act 1975* (Cth). The applicant alleged that he and the respondent had lived in a de facto relationship for a period of at least two years. The respondent conceded that a de facto relationship existed between December 2010 and November 2011, leaving the discrete issue for the court to determine whether the parties' de facto relationship subsisted for a total period of at least two years.

The court was required to determine whether the parties had lived in a de facto relationship for a period of at least two years, as defined by section 4AA of the *Family Law Act 1975*. This definition requires that persons are not legally married to each other, not related by family, and have a relationship as a couple living together on a genuine domestic basis, having regard to all the circumstances. The court considered various factors including the duration of the relationship, the nature and extent of their common residence, the existence of a sexual relationship, the degree of financial dependence or interdependence, the ownership and acquisition of property, and the degree of mutual commitment to a shared life.

Stevenson J found that the parties met in November 2004 and soon entered into a sexual relationship. The applicant separated from his wife in June 2005, and the respondent separated from her husband in April 2007. The parties moved into a property together in December 2010 and carried out renovations. The respondent purchased an apartment in April 2011, and the applicant contributed to mortgage instalments and utilities for a period. They opened a joint bank account for mortgage repayments, which both parties contributed to, and moved into the apartment in July 2011 with the intention of renovating and sharing any profit. The parties separated in November 2011. The court noted that while the respondent conceded a de facto relationship existed from December 2010 to November 2011, the applicant contended it began in June 2007. Having regard to the evidence of their shared residence, financial interdependence, and mutual commitment to a shared life, the court declared that a de facto relationship existed between the parties for a period of at least two years, specifically between June 2007 and November 2011.

The court declared that a de facto relationship existed between Mr Malcher and Ms Seares for a period of at least two years, between June 2007 and November 2011, pursuant to section 90RD of the *Family Law Act 1975*. The proceedings were subsequently referred to the Registrar for mention and further directions, including the appointment of a conciliation conference.

Orders