Palmerston and Hallett

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PALMERSTON & HALLETT [2012] FMCAfam 639

FAMILY LAW – Declaration as to de facto relationship – issue estoppel.

Family Law Act 1975, ss.4AA, 90RD
New South Wales Property (Relationships) Act 1984

Baker v Landon [2010] FMCAfam 280
Browne v Dunn (1983) 6 R 67
Jones & Dunkel (1959) 101 CLR 298
Kemeny v Kemeny (1998) FLC 92-806
Roy v Sturgeon (1986) 11 FamLR 271

Applicant: MR PALMERSTON

Respondent: MS HALLETT

File Number: MLC 644 of 2012

Judgment of: McGuire FM

Hearing dates: 7, 8, 12, 13 & 15 June 2012

Date of Last Submission: 15 June 2012

Delivered at: Melbourne

Delivered on: 29 June 2012

REPRESENTATION

Counsel for the Applicant: Ms Colla

Solicitors for the Applicant: Barry B. Moshel

Counsel for the Respondent: Mr Kanarev

Solicitors for the Respondent: Ian Robertson Legal

ORDERS

1. That there be a declaration that the parties MR PALMERSTON and MS HALLETT were in a de facto relationship within the meaning of the Family Law Act 1975 between April 2008 and August 2010.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 644 of 2012

MR PALMERSTON

Applicant

And

MS HALLETT

Respondent

REASONS FOR JUDGMENT

Applications and background

1. Mr Palmerston is the applicant for substantive orders for property settlement. In his Amended Initiating Application filed 13 March 2012 he first seeks a declaration pursuant to 90RD of the Family Law Act 1975 (“the Act”) that he and the respondent, Ms Hallett were in a de facto relationship from approximately April 2008 until either August or November 2010.

2. Ms Hallett denies that there was any such relationship within the meaning of the Act.

3. I am asked to make this determination as a preliminary issue to any substantive proceedings. To this end, the matter proceeded over some

   
   

   5 days in June of this year.

4. As is common with issues as to whether or not a de facto relationship existed, and absent of the empirical evidence of a certificate and a ceremony that would accompany a marriage, issues of credit between the parties are germane to my determination. Each of the parties adduced evidence from a number of friends and acquaintances who, not surprisingly, made observations and conclusions consistent with those of the party for whom they provided affidavits and also not surprisingly, the evidence of those witnesses was generally that of subjective summation and conclusion.

5. There are, however, some agreed facts between the parties as follows:

   ·The applicant, Mr Palmerston, is 44 years of age;

   ·He has lived consistently at the property at Property S in Victoria prior to and during the course of his relationship, whatever its status, with the respondent, Ms Hallett;

   ·He has previously been married. He has no children;

   ·The respondent, Ms Hallett, is 39 years old;

   ·Ms Hallett has two children being X (aged 17 years) and Y (aged 10 years). From…