MULLAN & WORRELL - [2016] FamCA 943

FAMILY COURT OF AUSTRALIA

MULLAN & WORRELL

[2016] FamCA 943

FAMILY LAW – DE FACTO RELATIONSHIP – Where the de facto wife seeks a declaration that the parties’ relationship ended in May 2009 – Where the de facto husband says the parties’ relationship ended before 1 March 2009 and the Court does not have jurisdiction in respect of an application made under Part VIIIAB of the Family Law Act 1975 (Cth) – Where the onus is on the de facto wife to prove that a breakdown had not occurred before 1 March 2009 – Where it was not until May 2009 that the parties took action to end the de facto relationship – Where a declaration is made that the de facto relationship ended in May 2009.

Child Support (Assessment) Act 1989 (Cth)
Commonwealth Powers (De Facto Relationships) Act 2003 (NSW)
Family Law Act 1975 (Cth)
Family Law Amendment (De Facto Financial Matters and other Measures) Act 2008 (Cth)

Cadman & Hallett [2013] FamCA 819
Cadman & Hallett (2014) FLC 93-603
Clyne v Deputy Commissioner of Taxation (1981) 150 CLR 1
Falk & Falk (1977) FLC 90-247
Fenton & Marvel (2013) FLC 93-550
Hopes v Hopes [1949] P 227
Jonah & White (2011) Fam LR 460
Jones & Dunkel (1959) 101 CLR 298
Lynam v Director-General of Social Security (1984) FLC 91-577
Morris v Morris (1972-73) ALR 893
Murphy v Farmer (1988) 165 CLR 19
Onslow & Onslow [2016] FamCAFC 7
Owens & Benson (2014) FamCAFC 243
Pavey & Pavey (1976) FLC 90-051
Sinclair & Whittaker (2013) FLC 93-551
Todd & Todd (No 2) (1976) FLC 90-008

Vaughan & Vaughan (1990) FLC 92-135

APPLICANT:

Ms Mullan

RESPONDENT:

Mr Worrell

FILE NUMBER:

SYC

3653

2015

DATE DELIVERED:

28 October 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

4 March 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Othen

SOLICITOR FOR THE APPLICANT:

Allsop Glover Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Hartford-Davis

SOLICITOR FOR THE RESPONDENT:

Broun Abrahams Burreket

Orders

It is declared that the de facto relationship between Ms Mullan and Mr Worrell ended in May 2009.

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 Mullan & Worrell 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 SYDNEY

FILE NUMBER: SYC 3653 of 2015

Ms Mullan

Applicant

And

Mr Worrell

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

The husband and wife commenced a de facto relationship in 1983 and had two children.
The wife has applied for a property settlement order under…

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 MULLAN & WORRELL

Details

AGLC: MULLAN & WORRELL [2016] FamCA 943
Case: [2016] FamCA 943
Decision Date: 28 October 2016

CaseChat Overview and Summary

In the matter of Mullan & Worrell, Ms Mullan sought a declaration that her de facto relationship with Mr Worrell concluded in May 2009. Mr Worrell contended that the relationship had terminated prior to 1 March 2009, which would divest the Court of jurisdiction to hear an application made under Part VIIIAB of the *Family Law Act 1975* (Cth). The case was heard by Watts J.

The central legal issue before the Court was to determine the precise date on which the de facto relationship between the parties ended. This determination was critical for establishing the Court's jurisdiction to make property orders under the relevant provisions of the *Family Law Act 1975*. The onus rested upon Ms Mullan to demonstrate that the breakdown of the relationship had not occurred before the jurisdictional threshold date of 1 March 2009.

Watts J reasoned that the evidence indicated that it was not until May 2009 that the parties took concrete steps to formally end their de facto relationship. Consequently, the Court found that the de facto relationship had not ended before 1 March 2009.

Accordingly, the Court declared that the de facto relationship between Ms Mullan and Mr Worrell ended in May 2009.

Orders

Orders of the court

It is declared that the de facto relationship between Ms Mullan and Mr Worrell ended in May 2009.

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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