Onslow and Onslow - [2013] FCCA 1434

FEDERAL CIRCUIT COURT OF AUSTRALIA

ONSLOW & ONSLOW

[2013] FCCA 1434

Catchwords:
FAMILY LAW – Application for property adjustment orders between de facto spouses – whether de facto relationship broke down after 1 March, 2009 – where de facto relationship broke down finally after 1 March, 2009 – assessment of contributions – declarations and orders made.

Legislation:

Family Law Act 1975, ss.4, 4AA(1), 4AA(2), 4AA(3), 48(1), 79, 90SM(4), 90SM(4)(a) – (g), 90SF(3)

Family Law Amendment (De Facto Financial Matter and Other Measures) Act 2008, item 86(1) of Schedule 1 Part 2 Division 2
Property Law Act 1974, s.32DA(2)
Social Security Act 1991, ss.4, 4(3A)

Calverley v Green (1984) 155 CLR 242
C v C (2005) Fam LR 414
Fenton & Marvel [2013] FamCAFC 132
In the Marriage of Clauson (1995) FLC 92-595
In the Marriage of Ferraro (1993) FLC 92-335\
In the Marriage of Hickey (2003) 30 Fam LR 355
In the Marriage of Lee Steere and Lee Steere (1985) FLC 91-626
Russell v Russell (1999) FLC 92-877

Applicant:

MS ONSLOW

Respondent:

MR ONSLOW

File Number:

CRC 56 of 2011

Judgment of:

Judge Jarrett

Hearing dates:

16 May & 1 November 2012

Date of Last Submission:

13 December, 2012

Delivered at:

Brisbane

Delivered on:

24 September 2013

REPRESENTATION

Counsel for the Applicant:

Ms Carty

Solicitors for the Applicant:

Jane Adams Lawyers

Counsel for the Respondent:

Mr S C Priestly

Solicitors for the Respondent:

Coastal Law & Convenyancing

ORDERS

Pursuant to s.90RD of the Family Law Act1975, the Court declares that Ms Onslow and Mr Onslow:
(a)were in a de facto relationship for the purposes of Part VIIIAB of Family Law Act;
(b)their de facto relationship commenced in 1989; and
(c)their de facto relationship broke down finally after 1 March, 2009.
No later than 4.00pm on 22 November, 2013 Mr Onslow pay to Ms Onslow the sum of $71,750.00.
No later than 4.00pm on 22 November, 2013 Ms Onslow shall file and serve a draft order providing for a splitting of the superannuation interest of Mr Onslow using a base amount of $84,350.00 and in respect of which the trustee of the relevant superannuation fund has been given procedural fairness.
Otherwise all outstanding applications are dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT COFFS HARBOUR

CRC 56 of 2011

MS ONSLOW

Applicant

And

MR ONSLOW

Respondent

REASONS FOR JUDGMENT

By this application Ms Onslow seeks orders for property settlement against her one time de facto partner, Mr Onslow. Mr Onslow resists the claim and says that the application should be dismissed.
The application is not straightforward because, although the parties agree that they were in a de facto relationship between 1989 and 2000, Ms Onslow contends that the relationship did not end until after 17 June, 2009 whereas Mr Onslow contends that it ended sometime in 2000. The date upon which the…

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 Onslow and Onslow

Details

AGLC: ONSLOW & ONSLOW [2013] FCCA 1434
Case: [2013] FCCA 1434
Decision Date: 24 September 2013

CaseChat Overview and Summary

In the matter of *Onslow and Onslow*, heard by Judge Jarrett, the dispute concerned the characterisation and duration of a de facto relationship between Ms Onslow and Mr Onslow, and the consequential property settlement. The court was required to determine whether the parties had been in a de facto relationship for the purposes of Part VIIIAB of the *Family Law Act 1975* (Cth), and if so, when that relationship commenced and when it finally broke down.

The court's reasoning focused on establishing the existence and timeline of the de facto relationship. Applying the criteria set out in the *Family Law Act*, the court considered the various factors relevant to determining whether a de facto relationship existed. Based on the evidence presented, the court found that Ms Onslow and Mr Onslow had indeed been in a de facto relationship.

The court declared that the de facto relationship commenced in 1989 and finally broke down after 1 March 2009. In terms of property settlement, Mr Onslow was ordered to pay Ms Onslow the sum of $71,750.00 by 22 November 2013. Additionally, Ms Onslow was directed to file and serve a draft order for the splitting of Mr Onslow's superannuation interest, based on a specified amount and subject to procedural fairness for the superannuation trustee. All other outstanding applications were dismissed.

Orders

Orders of the court

Pursuant to s.90RD of the Family Law Act 1975, the Court declares that Ms Onslow and Mr Onslow:

(a) were in a de facto relationship for the purposes of Part VIIIAB of Family Law Act;

(b) their de facto relationship commenced in 1989; and

No later than 4.00pm on 22 November, 2013 Mr Onslow pay to Ms Onslow the sum of $71,750.00.

No later than 4.00pm on 22 November, 2013 Ms Onslow shall file and serve a draft order providing for a splitting of the superannuation interest of Mr Onslow using a base amount of $84,350.00 and in respect of which the trustee of the relevant superannuation fund has been given procedural fairness.

Otherwise all outstanding applications are dismissed.

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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