FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MILLER & TRENT | [2011] FMCAfam 324 |
| FAMILY LAW – Property – De facto claim – time – declaration – words substantial contributions – serious injustice considered. |
| Family Law Act 1975, ss.4AA, 90RD, 90SB, 90SM Family Law Act 1997 (WA), ss.205X, 205ZG |
| V and K [2005] FCWA 80 Wentworth v Wentworth (1995) 37 NSWLR 703; [1995] ACL Rep 395 NSW 39 |
| Applicant: | MR MILLER |
| Respondent: | MS TRENT |
| File Number: | BRC 11892 of 2010 |
| Judgment of: | Coates FM |
| Hearing date: | 29 March 2011 |
| Date of Last Submission: | 1 April 2011 |
| Delivered at: | Brisbane |
| Delivered on: | 25 May 2011 |
REPRESENTATION
| Solicitors for the Applicant: | Self represented |
| Counsel for the Respondent: | Mr M Pieterse |
| Solicitors for the Respondent: | Briese Lawyers |
ORDERS
That pursuant to section 90RD(1) of the Family Law Act 1975 it is declared that a de facto relationship never existed between Mr Miller and Ms Trent for the purposes of this proceeding.
That the Application by Mr Miller be dismissed.
That costs be reserved.
IT IS NOTED that publication of this judgment under the pseudonym Miller & Trent is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 11892 of 2010
| MR MILLER |
Applicant
And
| MS TRENT |
Respondent
REASONS FOR JUDGMENT
This is a de facto property matter in which both parties seek or require declarations as to the existence of a de facto relationship - for the purposes of this proceeding.
The Family Law Act 1975 (“the Act”) recognises the difference between married and de facto relationships in that only some de facto financial matters attract rights under the Act.
The applicant was self-represented and his application was deficient to the extent of not referring to the basis of the application and the necessary thresholds involving de facto financial matters, however that deficiency may be put aside in that it was evident that he sought an alteration of property interests.
In this proceeding, the relationship, although capable of attracting the relevant geographical jurisdiction, did not occur over a statutory two year period, so the applicant Mr Miller needs to invoke a jurisdictional threshold.
I will use italics when referring to key words in the Act, when referring to interpretation of their meanings and when referring to various cases.
Because of the short relationship, the applicant requires a jurisdictional declaration under s.90RD of the Act that a de facto relationship existed between certain dates for the purposes of the proceeding.
This would create the required nexus between s.90RD and the orders for an alteration of property interests sought under s.90SB of the Act based on substantial contributions and that failure to make an order would result in a serious injustice (to him).
The extent of the settlement he sought was confusing because the application referred to 15 percent of the joint asset pool but then set out a formula to determine that share being:
“X = [NP x 15%…
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- AGLC
- Miller & Trent [2011] FMCAfam 324
- Case
- [2011] FMCAfam 324
- Decision Date
CaseChat Overview and Summary
The court examined the statutory provisions, particularly sections 90RD and 90SB of the Family Law Act, to determine the scope of its powers in making declarations about de facto relationships. It was noted that the court could declare both the existence and non-existence of a de facto relationship for the purposes of specific proceedings. The court also considered the applicant's claims regarding substantial contributions and serious injustice. The respondent raised objections to the applicant's evidence, leading the court to allow an adjournment for the applicant to review written submissions.
The court concluded that, based on the evidence presented, a declaration that a de facto relationship never existed between the parties for the purposes of the proceeding was appropriate. Consequently, the applicant's application was dismissed, and costs were reserved. This decision underscores the importance of clear evidence and statutory interpretation in family law proceedings concerning de facto relationships.
Orders
Orders of the court
1.
That pursuant to section 90RD(1) of the Family Law Act 1975 it is declared that a de facto relationship never existed between Mr Miller and Ms Trent for the purposes of this proceeding.
2.
That the Application by Mr Miller be dismissed.
3.
That costs be reserved.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
As for the necessary declarations, s.90RD allows for declarations of specified relationships for the purposes of the Act: “Section 90RD Declarations about the existence of de facto relationships(1)If:(a)an application is made for an order under section 90SE, 90SG or 90SM a declaration under section 90SL; and(b)a claim is made in support of the application, that a de facto relationship existed between the applicant and another person;the court may, for the purposes of those proceedings (the primary proceedings), declare that a de facto relationship existed, or never existed, between those 2 persons.(2)A declaration under subsection (1) of the existence of a de facto relationship may also declare any or all of the following:(a)the period, or periods, of the de facto relationship for the purposes of paragraph 90SB(a);(b)whether there is a child of the de facto relationship;(c)whether one of the parties to the de facto relationship made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c);(d)when the de facto relationship ended;(e)where each of the parties to the de facto relationship was ordinarily resident during the de facto relationship.” As is readily apparent, s.90RD(1) gives the Court the power to make declarations that either a de facto relationship existed, and importantly, that one did not exist. These declarations can only be made for the purposes of the proceeding under consideration. The provisions I have referred to recognise that a de facto relationship, especially a short one, is a different legal state when compared with a marriage and only enable the Act’s property jurisdiction in specified circumstances. While the respondent’s initial material sought a declaration as to the time of the relationship, a better view would be that if the evidence supports such, a declaration could be made under s.90RD(1), that a de facto relationship for the purposes of this proceeding never existed. If such a declaration is made, that ends the proceeding. The applicant’s evidence dictates that he must seek a declaration that the relationship existed between certain dates for the purposes of the proceedings, coupled with a s.90RD(2) factor, that he made substantial contributions, the necessary connection to s.90SB(c) which I referred to earlier. The applicant basis his claims on contributions and injustice, but in specifically defining the elements of the relevant section, the Court has to be satisfied that the applicant made:a)Substantial contributions, andb)Serious injustice would (otherwise) result if the orders sought were not made. The terms substantial contributions and serious injustice are not defined in the Act, but statutory interpretation dictates that the adjectives substantial and serious must be given meaning. At face value, the adjectives qualify and mean more than mere contributions or mere injustice. These very specific issues are at the core of the applicant’s claims. Before examining his claims, I will refer to objections to much of the applicant’s evidence. The point about objectionable material was fairly raised and I allowed the applicant an adjournment to consider the written submissions from counsel for the respondent.