Moby & Schulter

[2009] FamCA 1285

FAMILY COURT OF AUSTRALIA

MOBY & SCHULTER [2009] FamCA 1285

FAMILY LAW – JURISDICTION – De facto marriage

Family Law Act 1975 (Cth)

APPLICANT: Ms Moby

RESPONDENT: Mr Schulter

FILE NUMBER: MLC 10432 of 2009

DATE DELIVERED: 23 December 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 23 December 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Robinson

SOLICITOR FOR THE APPLICANT: Adrian Abrahams Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Hoult

SOLICITOR FOR THE RESPONDENT: JH Legal Pty Ltd

Orders

1. That pursuant to s 90RD of the Family Law Act 1975 (Cth) it is declared for the purposes of an order under s 90SG, the applicant and the respondent were in a de facto relationship.

2. For the purposes of s 90RD(2)(d) and for the purposes of s 90SG, the parties’ relationship ended in November 2009.

3. That all outstanding interim applications are adjourned to 10.00am on 18 January 2010 for a short hearing.

4. That the respondent pay to the applicant the sum of $3000 as follows:

   (a)$1000 this day (cash paid to the applicant’s solicitor); and

   (b)$2000 on or before 2 January 2010 such to be paid into the applicant’s account.

5. That each party file any further affidavit material upon which they intend to rely by 4.00pm on 15 January 2010.

IT IS NOTED that publication of this judgment under the pseudonym Moby & Schulter is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10432 of 2009

MS MOBY

Applicant

And

MS SCHULTER

Respondent

REASONS FOR JUDGMENT

1. This is an application filed by Ms Moby on 23 November 2009 seeking orders for the adjustment of property and maintenance for herself. The jurisdiction in this case is in dispute. The applicant says that there was a de facto relationship between the parties and that it ended in October 2009. The respondent denies that saying that there was no de facto relationship, but even if there was, it ended well prior to 2009, and, therefore, there is no jurisdiction. The application that brings the matter into the duty list is for urgent maintenance the jurisdiction for which is a specific provision in Part VIIIAB of the Act.

2. One of the difficulties with the application is that it is not clear whether or not a court can deal with an urgent application when there is a jurisdictional dispute. 

3. I propose in this case to deal with it on the basis that there is sufficient evidence for me to make the necessary declaration. Section 4 of the Family Law Act 1975 (Cth) (“the Act”) defines a de facto financial cause as including:

   …proceedings between the parties to a de facto relationship with respect to the maintenance of one of them after the breakdown of their de facto relationship.

4. De facto relationship is defined in s 4AA. It says that:

   A person is in a de facto relationship with another person if the persons are not legally married…