Omar and Sheridan - [2017] FCCA 1551

FEDERAL CIRCUIT COURT OF AUSTRALIA

OMAR & SHERIDAN

[2017] FCCA 1551

Catchwords:
FAMILY LAW – Application for de facto maintenance – parties are the parents a child aged almost three years – parties were involved in a short relationship involving cohabitation of less than six months – threshold jurisdictional issue – is it possible to characterise nature of relationship between the parties at this stage – matters to be considered.

Legislation:

Family Law Act 1975, ss.4AA, 39B, 44(5), 44(6), 90RD, 90SB, 90SD, 90SE, 90SG, 90SM, 90SM

Federal Circuit Court of Australia Act 1999, s.17A
Federal Circuit Court Rules 2001, rr.13.03A(2); 13.1A
Child Support (Assessment) Act 1989

Cases cited:
Taisha v Peng (2013) 48 FamLR 150
Moby & Schulter (2010) FLC 93-447
Jonah v White (2012) 45 Fam LR 460
Taisha v Peng (2013) 48 FamLR 150
Jonah v White (2012) 45 Fam LR 460
Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135
Welsh v Diglin Pty Ltd [2005] FCAFC 149
Hall v Hall [2016] HCA 23
Lynam v Director-General of Social Security (1983) 52 ALR 128
Norton & Locke (2013) FLC 93-567
Moby & Schulter [2009] FamCA 1285
McKellar v Container Terminal Manager Services Limited (1999) 165 ALR 400
Dey v Victorian Railway Commissioners (1949) 78 CLR 62
Webster v Lampard (1993) 177 CLR 598

Applicant:

MR OMAR

Respondent:

MS SHERIDAN

File Number:

ADC 2401 of 2015

Judgment of:

Judge Brown

Hearing date:

9 May 2017

Date of Last Submission:

9 May 2017

Delivered at:

Adelaide

Delivered on:

6 July 2017

REPRESENTATION

Counsel for the Applicant:

No appearance

Solicitors for the Applicant:

Not applicable

Counsel for the Respondent:

Mr Holland

Solicitors for the Respondent:

Angela Ferdinandy

ORDERS

The interim application in respect of urgent de facto maintenance is dismissed.
The matter is fixed for final hearing before Judge Brown on 15 & 16 November 2018 at 10:00am NOTING 2 days allowed.
The matter be listed for further directions on 7 November 2017 at 9:30am.
The applicant is given leave to appear by telephone on the occasion of the directions hearing.
The father is directed to file an amended application in reply to the response, filed by the respondent in which she seeks a declaration that a de facto relationship existed between the parties pursuant to the provisions of section 90RD of the Family Law Act 1975 and related property orders pursuant to section 90SM, together with an affidavit in support within 42 days of today’s date.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 2401 of 2015

MR OMAR

Applicant

And

MS SHERIDAN

Respondent

REASONS FOR JUDGMENT

Introduction

Mr Omar and Ms Sheridan were involved in a brief relationship in 2013. The relationship produced a child, X born (omitted) 2013. The parties have never been married.
This case is concerned with the question of whether…

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 Omar and Sheridan

Details

AGLC: Omar and Sheridan [2017] FCCA 1551
Case: [2017] FCCA 1551
Decision Date: 6 July 2017

CaseChat Overview and Summary

In the matter of *Omar and Sheridan*, heard before Judge Brown, the dispute concerned an interim application for urgent de facto maintenance. The respondent sought a declaration that a de facto relationship existed between the parties and ancillary property orders under the *Family Law Act 1975*.

The court was required to determine whether to grant the interim application for urgent de facto maintenance. Additionally, the court needed to address the respondent's application for a declaration of a de facto relationship and related property orders.

The judge dismissed the interim application for urgent de facto maintenance. The court directed the father to file an amended application in reply to the respondent's response, which sought declarations and property orders, along with a supporting affidavit, within 42 days. The matter was then fixed for a final hearing on 15 and 16 November 2018, with a further directions hearing scheduled for 7 November 2017, at which the applicant was granted leave to appear by telephone.

Orders

Orders of the court

The interim application in respect of urgent de facto maintenance is dismissed.

The matter is fixed for final hearing before Judge Brown on 15 & 16 November 2018 at 10:00am NOTING 2 days allowed.

The matter be listed for further directions on 7 November 2017 at 9:30am.

The applicant is given leave to appear by telephone on the occasion of the directions hearing.

The father is directed to file an amended application in reply to the response, filed by the respondent in which she seeks a declaration that a de facto relationship existed between the parties pursuant to the provisions of section 90RD of the Family Law Act 1975 and related property orders pursuant to section 90SM, together with an affidavit in support within 42 days of today’s date.

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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