McAllister & McAllister - [2022] FedCFamC2F 901

Federal circuit and family Court of Australia
(Division 2)
McAllister & McAllister [2022] FedCFamC2F 901

File number(s): MLC 12571 of 2020

Judgment of: JUDGE STEWART

Date of judgment: 13 July 2022

Catchwords: FAMILY LAW – jurisdictional pre-requisite of de facto relationship which broke down after 2009 – parties maintain separate residences from 1999/2000 – whether relationship exists – disputed date of separation – date of breakdown of de facto relationship 2020

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 4AA, 4AA(1)(c), 4AA(2), 4AA(4), 4AA (5)(b)

Cases cited:
Fairbairn & Radecki [2022] HCA 18

Hayes & Marquis [2008] NSWCA 10

Jonah & White [2011] FamCA 221

Division: Division 2 Family Law

Number of paragraphs: 90

Date of hearing: 9 & 10 December 2021

Place: Melbourne

Counsel for the Applicant: Mr G Combes

Solicitor for the Applicant: FE Lawyers

Counsel for the Respondent: Mr Hall

Solicitor for the Respondent: Saines Lucas Solicitors
ORDERS

MLC 12571 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR MCALLISTER
Applicant

AND:
MS MCALLISTER
Respondent

order made by:

JUDGE STEWART

DATE OF ORDER:

13 July 2022

THE COURT ORDERS THAT:

Pursuant to section 90RD of the Family Law Act 1975 (Cth) a de facto relationship is declared to have existed between the parties between the dates of 1990 and 17 May 2020.
The date of the breakdown of the parties’ de facto relationship is declared to be 17 May 2020.
The parties attend a Conciliation Conference with a Registrar of this Court at the Melbourne Registry on 19 October 2022 at 9:00am.
Unless otherwise exempted from payment the Applicant must pay the Conciliation Conference fee in accordance with the Family Law (Fees) Regulation 2012 prior to the Conciliation Conference.
Each party must provide the other party and the Court at least 3 days prior to the Conciliation Conference, a summary that they intend to rely upon at the conference setting out a list of assets, liabilities and superannuation together with current values, their proposal for division of those assets, liabilities and superannuation and details of the relevant matters set out in section 79(4) of the Family Law Act 1975 that reflect such proposal.
Each party must exchange at least 21 days before the Conciliation Conference an appraisal of any asset in dispute, in particular:-
(a)the former matrimonial home;
(b)other real estate;
(c)business;
If there is no agreement as to the value of the assets after the exchange of market appraisals, the parties must obtain at least 14 days prior to the Conciliation Conference, an opinion as to the value by an agreed valuer of the:-
(a)the former matrimonial home;
(b)other real estate;
(c)business;
and such valuations may be joint valuations if agreed between the parties.
The proceedings are listed for Final Hearing for 3 days commencing 6 February 2023 at 10.00am.
The Applicant file and serve any Amended Application, all affidavits and an updated Financial Statement upon which they seek to rely by no later than 28 days…

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 McAllister & McAllister

Details

AGLC: McAllister & McAllister [2022] FedCFamC2F 901
Case: [2022] FedCFamC2F 901
Decision Date

CaseChat Overview and Summary

The case of McAllister & McAllister involved a dispute between the Applicant, Mr McAllister, and the Respondent, Ms McAllister, regarding the existence and breakdown of their de facto relationship. The key issue was whether the relationship had broken down before or after 2009, as jurisdiction over financial matters related to de facto relationships which broke down after 2009 lies with the Family Court. The Applicant claimed the relationship broke down in 2020, while the Respondent asserted it ended in 1999. Judge Stewart found that the de facto relationship between the parties existed from 1990 until 17 May 2020. The judge considered various factors, including the duration of the relationship, the nature and extent of common residence, financial dependence, and care and support of children. The judge concluded that the parties maintained their relationship as a couple living together on a genuine domestic basis until 17 May 2020, granting the court jurisdiction to determine the property dispute between the parties.

Orders