MARTENS & BOCCA - [2016] FamCA 1044

FAMILY COURT OF AUSTRALIA

MARTENS & BOCCA

[2016] FamCA 1044

FAMILY LAW – DE FACTO PROPERTY – Application for a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) that a de facto relationship existed – Assertion by applicant that parties maintained a de facto relationship for a period of 13 years – Respondent denies this assertion and claims that the parties were in friendship/relationship which should not be regarded as a relationship within the meaning of the Family Law Act 1975 (Cth) – Declaration made pursuant to s 90DR of the Family Law 1975 (Cth) that the parties were in a de facto relationship for a period of approximately 13 years

Commonwealth Powers (De Facto Relationships Act) 2003 (NSW)

Family Law Act 1975 (Cth) ss 4AA, 31(1)(a)(aa), 90RD, 90SB

Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) s 4(1)

Norton v Locke [2013] FamCAFC 202

Lynam v Director General of Social Security (1983) 52 ALR 128; 9 Fam LR 305; (1984) FLC 91-577

APPLICANT:

Mr Martens

RESPONDENT:

Mr Bocca

FILE NUMBER:

SYC

6963

2015

DATE DELIVERED:

7 December 2016

PLACE DELIVERED:

Hobart

PLACE HEARD:

Sydney

JUDGMENT OF:

Benjamin J

HEARING DATE:

1, 2, 21 & 22 September 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Kennedy

SOLICITOR FOR THE APPLICANT:

Tiyce Partners Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Murphy

SOLICITOR FOR THE RESPONDENT:

Eleanor Murphy & Company

Orders

Pursuant to s 90RD of Family Law Act 1975 (Cth) it is declared that a de facto relationship existed between Mr Martens and Mr Bocca from November 2000 until 26 October 2013.
These proceedings and component applications are referred to the list co-ordinator to allocate a date for a Conciliation Conference and to make directions for the filing of further material, if necessary.
The costs of both parties be reserved in relation to the application to this jurisdictional proceeding.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.

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 Martens & Bocca & 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 HOBART

FILE NUMBER: SYC 6963 of 2015

Mr Martens

Applicant

And

Mr Bocca

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

Mr Martens (‘the applicant’) and Mr Bocca (‘the respondent’) began a friendship/relationship in November 2000, which continued until October 2013.
The applicant contends that their relationship was a de facto relationship within the meaning of the

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.

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Details

AGLC: MARTENS & BOCCA [2016] FamCA 1044
Case: [2016] FamCA 1044
Decision Date: 7 December 2016

CaseChat Overview and Summary

In the matter of *Martens & Bocca*, Benjamin J of the Family Court of Australia was required to determine whether a de facto relationship existed between Mr Martens and Mr Bocca. The applicant asserted that the parties had maintained a de facto relationship for approximately 13 years, while the respondent contended that their association was one of friendship or a relationship that did not meet the definition of a de facto relationship under the *Family Law Act 1975* (Cth).

The central legal issue before the court was to ascertain whether the criteria for a de facto relationship, as defined by the *Family Law Act 1975* (Cth), were satisfied for the period alleged by the applicant. This involved assessing the nature and extent of the parties' association to determine if it constituted a de facto relationship within the meaning of the Act.

Benjamin J applied the provisions of section 90RD of the *Family Law Act 1975* (Cth) to make a declaration. The court found that a de facto relationship did indeed exist between Mr Martens and Mr Bocca. The court declared that this de facto relationship subsisted from November 2000 until 26 October 2013. Following this declaration, the proceedings and associated applications were referred for a conciliation conference, with directions to be made for the filing of further material if required. The costs of both parties in relation to this jurisdictional proceeding were reserved, and it was certified that engaging counsel was reasonable.

Orders

Orders of the court

Pursuant to s 90RD of Family Law Act 1975 (Cth) it is declared that a de facto relationship existed between Mr Martens and Mr Bocca from November 2000 until 26 October 2013.

These proceedings and component applications are referred to the list co-ordinator to allocate a date for a Conciliation Conference and to make directions for the filing of further material, if necessary.

The costs of both parties be reserved in relation to the application to this jurisdictional proceeding.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.

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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