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Pethrick & Folmar

Pethrick & Folmar

Case [2022] FedCFamC2F 978 28 July 2022

De Facto Relationship

Jurisdiction

Common Residence

Financial Interdependence

Mutual Commitment

Family Law Act 1975 (Cth)

Family Law

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Federal Circuit and Family Court of Australia
(DIVISION 2)
Pethrick & Folmar [2022] FedCFamC2F 978

File number(s): MLC 542 of 2020

Judgment of: JUDGE O'SULLIVAN

Date of judgment: 28 July 2022

Catchwords: FAMILY LAW – Property – de facto property – where applicant seeks orders adjusting property interests – respondent seeks dismissal of application and declaration that parties never in a de facto relationship – threshold hearing to determine jurisdiction.

Legislation:
Evidence Act1995 (Cth), ss.128, 140

Family Law Act1975 (Cth), ss. 4AA, 90RD, 90SM

Cases cited:
Bannister v Pergolesi [2018] FamCA 888

Elias v Elias (1997) FLC 90-267

Fairbairn v Radecki [2022] HCA 18

Henry v Cuso [2022] FedCFamC1F 190

Herford & Berke (No 2) (2019) FLC 93-919

Jonah v White [2011] FamCA 221

Jonah & White [2012] FamCAFC 200

Jones v. Dunkel & Anor (1959) 101 CLR 298

JRR v PH [2005] QSC 253

Lynam v Director-General of Social Security (1983) 52 ALR 128

Mayson & Wellard [2021] FamCAFC 115

Moby v Schulter [2010] FamCA 748

Rooks & Padley [2014] FamCA 444

Sinclair v Whittaker (2013) FLC 93-551

Taisha & Peng [2012] FamCA 385

Vaughan v Bele [2011] FamCA 436

Zau v Uongh [2013] FamCA 347

Division: Division 2 Family Law

Number of paragraphs: 126

Date of last submission/s: 27 May 2022

Date of hearing: 22 & 23 November 2021 (via Microsoft Teams)

Place: Melbourne (via Microsoft Teams)

Counsel for the Applicant: Mr Tatarka

Solicitor for the Applicant: Lennon Lawyers

Counsel for the Respondent: Mr Dixon QC

Solicitor for the Respondent: White & Mason Lawyers
ORDERS

MLC542 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS PETHRICK

Applicant

AND:
MR FOLMAR

Respondent

order made by:

JUDGE O'SULLIVAN

DATE OF ORDER:

28 July 2022

THE COURT ORDERS THAT:
Pursuant to s.90RD(2) of the Family Law Act1975 (Cth) there is a declaration that the parties were in a de facto relationship for a period of at least 2 years comprised by the aggregation of the following periods:
(a)from January 2015 to January 2016;
(b)from May 2016 to August 2016
(c)September 2016 to January 2017; and
(d)January 2018 to October 2018.

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 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Pethrick & Folmar has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Introduction

Tattoos are…

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.

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Details

AGLC: Pethrick & Folmar [2022] FedCFamC2F 978
Case: [2022] FedCFamC2F 978
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia was asked to determine whether the applicant and respondent were in a de facto relationship. The applicant argued that they were in a de facto relationship and the respondent denied this and argued they were merely boyfriend and girlfriend. The applicant filed her initiating application on 20 January 2020 and the respondent filed his response on 17 April 2020. The matter was set down for a two day hearing which occurred on 22 and 23 November 2021. The decision on jurisdiction was reserved on 27 May 2022. The Court found that the parties were in a de facto relationship for at least two years. The periods in which the parties were in a de facto relationship were from January 2015 to January 2016, from May 2016 to August 2016, from September 2016 to January 2017, and from January 2018 to October 2018. The Court found that the parties had a relationship as a couple living together on a genuine domestic basis.

Orders