PIKE & HOWLETT - [2010] FMCAfam 802

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PIKE & HOWLETT

[2010] FMCAfam 802

FAMILY LAW – Declaration of de facto relationship – what constitutes a de facto relationship.

Family Law Act 1975 (Cth), ss.4AA, 39B, 60EA, 90RD & 90SM

Roy & Sturgeon (1986) 11 FLR
Moby & Schulter (2009) FamCA 1285

Applicant:

MR PIKE

Respondent:

MS HOWLETT

File Number:

DNC 251 of 2009

Judgment of:

Turner FM

Hearing dates:

8 & 9 July 2010

Date of Last Submission:

9 July 2010

Delivered at:

Darwin

Delivered on:

9 July 2010

REPRESENTATION

Counsel for the Applicant:

Mr Peters

Solicitors for the Applicant:

Maleys Barristers & Solicitors

Counsel for the Respondent:

Ms Holtham

Solicitors for the Respondent:

Holtham & Associates

ORDERS

It is declared pursuant to section 90RD Family Law Act 1975 that for the purposes of an order under section 90SM Family Law Act 1975, that the applicant and respondent were in a de facto relationship which commenced at the end of 2002 and ended in March 2009.
That the costs of the respondent for these proceedings be reserved.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT DARWIN

DNC 251 of 2009

MR PIKE

Applicant

And

MS HOWLETT

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
I have before me today for determination an oral application that has been made on behalf of the applicant, Mr Pike, for the Court to make a declaration pursuant to s.90RD Family Law Act1975, as to the existence of a de facto relationship between Mr Pike and Ms Howlett. It is an unusual case in that I am not required to determine the date of separation, which the parties agree is March 2009, but the date of the commencement of the relationship.
The applicant in this matter, for the purposes of this oral application, Mr Pike maintains that the relationship commenced some time in 2007, when Ms Howlett’s mother and father were invited to move into the property. Ms Howlett, however, states that the relationship commenced in March 2002, which was the date of commencement of cohabitation. The reason the declaration is required is for the purposes of property proceedings, which are before the Court, pursuant to s.90SM.
I will turn briefly to the law. The jurisdiction of the Federal Magistrates Court to hear and determine issues regarding de facto partners is conferred by s.39B of the Family Law Act1975. What is a de facto partner is defined in s.60EA, which reads:
“For the purposes of the subdivision, a person is a de facto of another person if the person is in a de facto relationship with the other person. What constitutes a de facto relationship…

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 PIKE & HOWLETT

Details

AGLC: PIKE & HOWLETT [2010] FMCAfam 802
Case: [2010] FMCAfam 802
Decision Date: 9 July 2010

CaseChat Overview and Summary

In the Family Court of Australia, the matter of Pike v Howlett was heard. The primary concern of this case was to determine whether the applicant and the respondent had been in a de facto relationship, and if so, the duration of this relationship. This determination was sought to facilitate an application under the Family Law Act 1975 for financial orders between the parties. The court was required to examine the evidence presented by both parties to ascertain the nature and duration of their relationship, considering various factors that define a de facto relationship under the Act.

The court needed to decide whether the applicant and respondent had a de facto relationship, and if so, when it began and ended. This involved an analysis of their conduct, including their living arrangements, financial interdependence, and the overall nature of their relationship. The court considered the statutory criteria outlined in the Family Law Act 1975, including whether the parties were not married to each other, and whether they lived together on a genuine domestic basis. The court also took into account the parties' declarations, witness testimonies, and other evidence that demonstrated the nature of their relationship over time.

Upon reviewing the evidence, the court concluded that the applicant and respondent had indeed been in a de facto relationship. The relationship commenced at the end of 2002 and concluded in March 2009. The court found that the evidence demonstrated that the parties had shared a genuine domestic relationship, living together and exhibiting the characteristics of a de facto relationship. The court's decision was based on the comprehensive analysis of the evidence and the application of the relevant legal criteria. Consequently, the court made the declaration requested by the applicant and reserved the respondent's costs for these proceedings.

Orders

Orders of the court

It is declared pursuant to section 90RD Family Law Act 1975 that for the purposes of an order under section 90SM Family Law Act 1975, that the applicant and respondent were in a de facto relationship which commenced at the end of 2002 and ended in March 2009.

That the costs of the respondent for these proceedings be reserved.

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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