Mulligan and Teale - [2015] FCCA 1965

FEDERAL CIRCUIT COURT OF AUSTRALIA

MULLIGAN & TEALE

[2015] FCCA 1965

Catchwords:
FAMILY LAW – Property – whether the court has jurisdiction to hear a de facto property application – whether and if so when a de facto relationship existed between the parties.

Legislation:
Family Law Act 1975 (Cth), ss.4AA, 90RD, 90SM

Evidence Act 1995 (Cth), s.140

Cases cited:
Norton & Locke [2013] Fam CAFC 202
Jonah & White [2011] FamCA 221
Owens & Benson [2014] FamCAFC 243
Briginshaw v Briginshaw (1938) 60 CLR 336

Applicant:

MR MULLIGAN

Respondent:

MS TEALE

File Number:

NCC 2372 of 2014

Judgment of:

Judge Terry

Hearing dates:

9, 10 & 11 June 2015

Date of Last Submission:

11 June 2015

Delivered at:

Newcastle

Delivered on:

23 June 2015

REPRESENTATION

Counsel for the Applicant:

Mr Davies

Solicitors for the Applicant:

Bale Boshev Lawyers

Solicitor Advocate for the Respondent:

Mr Fryatt

Solicitors for the Respondent:

Stacks The Law Firm

ORDERS

The Initiating Application filed on 12 September 2014 is dismissed.
Further consideration of the Respondent’s costs application is adjourned to 4.00pm on 24 June 2015.
The Respondent’s solicitor has liberty to appear by telephone on 24 June 2015.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT NEWCASTLE

NCC 2372 of 2014

MR MULLIGAN

Applicant

And

MS TEALE

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
On 12 September 2014 Mr Mulligan (“the applicant”) filed an application for a property settlement pursuant to s. 90SM of the Family Law Act 1975. He alleged that he and Ms Teale (“the respondent”) were in a de facto relationship between (omitted) 1999 and 31 December 2012.
On 19 November 2014, the respondent filed a response seeking dismissal of the application. She said that the court did not have jurisdiction to hear the matter because the parties were not in a de facto relationship which broke down on or after 1 March 2009. It was her case that at its highest, the parties were in a de facto relationship from (omitted) 2006 to August 2006.
As a result the matter was listed for a discrete hearing about the jurisdictional issue as required by Norton & Locke[1] and that hearing took place two weeks ago.
[1] Norton & Locke [2013] FamCAFC 202
The relevant section of the Family Law Act 1975 is s. 90RD which provides as follows:
(1) If:
(a) an application is made for an order under section 90SM [….] 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 purpose of those proceedings declare that a de facto relationship existed or never existed…

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 Mulligan and Teale

Details

AGLC: Mulligan and Teale [2015] FCCA 1965
Case: [2015] FCCA 1965
Decision Date: 23 June 2015

CaseChat Overview and Summary

In Mulligan and Teale, heard before Judge Terry, the applicant sought to establish a de facto relationship. The dispute centred on whether the parties had lived together in a de facto relationship for a sufficient period to engage the relevant provisions of the *Family Law Act 1975* (Cth).

The court was required to determine whether the parties had cohabited in a de facto relationship, and if so, for what duration. This involved assessing the nature and extent of their common residence, the existence of a sexual relationship, the duration of their association, and the degree of financial dependence or interdependence between them.

Judge Terry found that while the parties had an association from 1999 to early 2013, with a break in 2010/2011, the common residence was limited to a period of four months in 2006. The court was not satisfied on the balance of probabilities that a sexual relationship continued after August 2006, and noted that the parties had always maintained separate finances with no evidence of financial dependence or support. The court concluded that the criteria for a de facto relationship were not met.

The Initiating Application was dismissed, and further consideration of the respondent's costs application was adjourned.

Orders

Orders of the court

The Initiating Application filed on 12 September 2014 is dismissed.

Further consideration of the Respondent’s costs application is adjourned to 4.00pm on 24 June 2015.

The Respondent’s solicitor has liberty to appear by telephone on 24 June 2015.

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

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Ratio Decidendi

Legal Principle Established

The first is the duration of the relationship. If relationship is loosely defined to mean the period during which the parties had an association of some kind or another it began in 1999 and ended when the respondent left the home property in early 2013, with a break of about two years in the 2010/2011 period because I accept the respondent’s assertion that there was a break then. That fits with the witness Mr D’s evidence and there were no telephone records to support the applicant’s version about that. I cannot be satisfied on the balance of probabilities that the relationship continued in that two year period but loosely defined we are looking at a period from 1999 to early 2013. The next consideration is the nature and extent of common residence. The only time the parties had a common residence in the sense of sharing a bed in a bedroom was the period from April 2006 to August 2006. The parties continued on occasions to live under one roof from either August 2006 until sometime in 2007 or August 2006 until sometime in 2009, because in either 2007 or 2009 the applicant shifted his bed from the sunroom to the top shed. I cannot determine exactly when that happened. The applicant continued to live on the home property on and off after August 2006 and I say on an off because he was sometimes sleeping at his mother’s a night a week in 2008 and he slept at Ms R’s sometimes but on many occasions he slept on the home property and that continued from August 2006 until late 2009. This resumed in late 2011 when the applicant moved into the shed and continued until he left in early 2013. The next thing I have to consider is whether a sexual relationship existed. It was common ground that the parties had a sexual relationship between (omitted) 1999 and August 2006. There was a dispute about whether it continued after August 2006. I consider it slightly more probable that it ceased in August 2006 as the respondent asserted but in any event I cannot be satisfied on the balance of probabilities that it continued after that time. I next have to consider the degree of financial dependence or inter-dependence and any arrangements for financial support between the parties. The parties always kept their finances separate. They never had a joint bank account. The respondent took out a loan in 2004 which was secured on her property by a mortgage and she made the mortgage repayments. There was no evidence of any division of expenses between the parties. There was an assertion by the applicant that in 2012 he may have paid for some groceries but it was a bare assertion. There was no evidence of a division of expenses. There was no evidence that the applicant ever financially supported the respondent. The respondent lived on her Disability Support Pension. The applicant lived on his income. The applicant never shared his income with the respondent. The respondent benefitted from the joint venture on the bush block in 2004 to an extent and she benefitted from the applicant’s assistance with developing the bush block for sale but at all times there was a commercial element to the parties’ transactions in respect of the joint venture and the sale of the block.