Potts and Provis - [2017] FCCA 1701

FEDERAL CIRCUIT COURT OF AUSTRALIA

POTTS & PROVIS

[2017] FCCA 1701

Catchwords:
FAMILY LAW – De facto relationship – declaration sought by applicant – declaration that de facto relationship existed.

Legislation:

Family Law Act 1975 (Cth), ss.4AA, 4AA(2), 44(6), 90RD, 90RD(1), 90RG and Part V11IAB

Cases cited:

Jonah & White [2011] FamCA 221

Jones v Dunkel (1959) 101 CLR 298

Applicant:

MS POTTS

Respondent:

MR PROVIS

File Number:

ADC 1045 of 2016

Judgment of:

Judge Heffernan

Hearing date:

22 May 2017

Date of Last Submission:

26 May 2017

Delivered at:

Adelaide

Delivered on:

11 August 2017

REPRESENTATION

Counsel for the Applicant:

Mr J Bowler

Solicitors for the Applicant:

Mellor Olsson

Counsel for the Respondent:

Ms C Smith

Solicitors for the Respondent:

Wadlow Solicitors

ORDERS

It is declared that a de facto relationship existed between the applicant and the respondent.
The period of the de facto relationship was from (omitted) 2009 until 25 March 2014.
At all relevant times, the applicant and respondent were resident in South Australia.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 1045 of 2016

MS POTTS

Applicant

And

MR PROVIS

Respondent

REASONS FOR JUDGMENT

This is an application for a declaration pursuant to s.90RD of the Family Law Act 1975 (Cth) (‘the Act’) that the parties were in a de facto relationship from (omitted) 2009 to 25 March 2014. In the event that the Court finds that a de facto relationship did exist, but that it ended in May or June 2013, then the applicant seeks an extension of time in which to bring these proceedings pursuant to s.44(6) of the Act.
The proceedings in this matter were filed on 24 March 2016.
The respondent opposes the declaration being made; he says that there was at no time a de facto relationship in existence; and seeks that the application be dismissed. In the event that the Court finds that a de facto relationship did exist, but ceased on or about May or June 2013, when the applicant moved out of the respondent’s premises at Property A, then the respondent opposes an extension of time in which to bring proceedings and seeks that the application be dismissed.

Background and chronology

There is no dispute between the parties that a relationship of some sort existed between them. The respondent acknowledges that the relationship extended to having sexual relations on many occasions. Much of the background to this matter is not disputed. I will set out the non-contentious aspects of the chronology.
The applicant was 51 years old and the respondent 69 years old at the time of trial. At all material times the respondent has worked as a (occupation omitted) through his business (business omitted). The applicant has two adult children from her first marriage, Mr A, who is 26 years old, and Ms M, who is aged 24 years. The parties…

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 Potts and Provis

Details

AGLC: Potts and Provis [2017] FCCA 1701
Case: [2017] FCCA 1701
Decision Date: 11 August 2017

CaseChat Overview and Summary

In *Potts and Provis*, heard by Judge Heffernan, the applicant sought declarations regarding the existence and duration of a de facto relationship with the respondent, and confirmation of their residency in South Australia during that period. The core of the dispute concerned the legal recognition of the relationship for the purposes of relevant legislation.

The court was required to determine whether a de facto relationship, as defined by the relevant legislation, existed between the parties. Further, it needed to ascertain the precise period during which this relationship subsisted and confirm the parties' place of residence throughout that time. These determinations were crucial for establishing the legal framework under which the parties' rights and obligations would be assessed.

Judge Heffernan found that a de facto relationship did indeed exist between the applicant and the respondent. The court declared that this relationship commenced in 2009 and concluded on 25 March 2014. Crucially, the court also determined that both parties were resident in South Australia at all material times, a finding that would likely have implications for the jurisdiction of the court and the application of South Australian law. The orders reflected these declarations.

Orders

Orders of the court

It is declared that a de facto relationship existed between the applicant and the respondent.

The period of the de facto relationship was from (omitted) 2009 until 25 March 2014.

At all relevant times, the applicant and respondent were resident in South Australia.

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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