Page & Gaubert - [2022] FedCFamC2F 820

Federal Circuit and Family Court of Australia
(DIVISION 2)
Page & Gaubert [2022] FedCFamC2F 820

File number(s): PAC 5874 of 2020

Judgment of: JUDGE NEWBRUN

Date of judgment: 22 June 2022

Catchwords: FAMILY LAW – de facto property adjustment proceedings - threshold hearing - declaration that de facto relationship existed between the parties, in the aggregate, for at least 2 years - declaration, in the alternative, that the parties were in a de facto relationship, within the meaning of section 4AA(1) of the Family Law Act, 1975, for a period of less than 2 years, and the Applicant made substantial contributions of a kind mentioned in paragraph 90 SM(4) (b) and (c), and that a failure to make the declaration would result in serious injustice to the Applicant

Legislation:
Family Law Act 1975 (Cth), ss. 90 SM, s 90SB(c), 4AA, 90RG, 90SB

Federal Circuit and Family Court of Australia (Family Law) Rules 2021, r 8.20

Cases cited:
Crick & Bennett [2018] FamCAFC 68

Dover & Mosely & Anor [2019] FCCA 2488

Fairbairn v Radecki [2022] HCA 18

Sinclair & Whittaker [2013] FamCAFC 129

Division: Division 2 Family Law

Number of paragraphs: 189

Date of last submission/s: 23 March 2022

Date of hearing: 22 and 23 March 2022

Place: Parramatta

Counsel for the Applicant Self-represented litigant

Counsel for the Respondent: Mr Hodgson
ORDERS

PAC 5874 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS PAGE

Applicant

AND:
MR GAUBERT

Respondent

order made by:

JUDGE NEWBRUN

DATE OF ORDER:

22 June 2022

THE COURT ORDERS THAT:
1.The Court declares, pursuant to s 90RD(1) of the Family Law Act 1975 (Cth) (“the Act”), that the Applicant and the Respondent were in a de facto relationship, within the meaning of section 4AA(1) of the Act, for a period of at least 2 years, and comprising the periods:
(i)from 24 September 2016 to 29 January 2017,
(ii)from 15 March 2017 to 2 September 2018,
(iii)from 6 October 2018 to 3 January 2019.

2.In the alternative, the Court declares, pursuant to s 90SB(c) of the Act, that the Applicant and the Respondent were in a de facto relationship, within the meaning of section 4AA(1) of the Act, for a period of less than 2 years, and the Applicant made substantial contributions of a kind mentioned in paragraph 90 SM(4) (b) and (c), and that a failure to make the declaration would result in serious injustice to the Applicant.
3.The proceedings are adjourned to 24 August 2022 at 9:30am for mention.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act

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 Page & Gaubert

Details

AGLC: Page & Gaubert [2022] FedCFamC2F 820
Case: [2022] FedCFamC2F 820
Decision Date

CaseChat Overview and Summary

The case of Page & Gaubert was heard at a threshold hearing in the Federal Circuit and Family Court of Australia. The Applicant, Ms Page, sought declarations under s 90RD and 90SB of the Family Law Act 1975 (Cth) that a de facto relationship existed between her and the Respondent, Mr Gaubert, for at least 2 years and that, in the alternative, she made substantial contributions of a kind mentioned in paragraph 90 SM(4)(b) and (c), and that a failure to make the declaration would result in serious injustice to her. The Respondent opposed Ms Page's proposed declarations. The Court heard evidence from both parties and lay witnesses and considered the documentary material relied upon by the parties. The Court found that a de facto relationship existed between the parties from at least 24 September 2016 until 29 January 2017, from 15 March 2017 until 2 September 2018, and from 6 October 2018 until 3 January 2019. The Court further found that in the alternative, Ms Page made substantial contributions of a kind mentioned in paragraph 90 SM(4)(b) and (c), and that a failure to make the declaration would result in serious injustice to her. The Court made the declarations sought by Ms Page.

Orders