Randall and Pavot - [2016] FCCA 1620

FEDERAL CIRCUIT COURT OF AUSTRALIA

RANDALL & PAVOT

[2016] FCCA 1620

Catchwords:
FAMILY LAW – De facto property – whether an application for property settlement is made out of time – whether the Applicant would be caused hardship if leave to proceed out of time were not granted under s.44(6) of the Family Law Act 1975.

Legislation:

Family Law Act 1975, ss.4AA, 44(4), 44(5), 44(6), 79(2), 90SM, 90RD

Cases cited:

Baumgartner (1987) 164 CLR 137
Brisbane South Regional Health Authority v Taylor(1996) 186 CLR 541
Calverley v Green (1984) 155 CLR 242
Friar & Friar [2011] FamCAFC 71
Giumelli v Giumelli (1999) 196 CLR 101
In the Marriage of N and SI Jacenko (1986) 11 FLR 341
In the Marriage of Perkins (1979) 4 FLR 634
In the Marriage of RW and PB Althaus (1979) FLR 169
In the Marriage of Whitford (1979) 4 FLR 754
MacKenzie and MacKenzie (1978) 4 FLR 374
Muschinski v Dodds (1985) 160 CLR 583
Sharp & Sharp [2011] FamCAFC 150
Stanford v Stanford [2012] HCA 52

Applicant:

MR RANDALL

Respondent:

MS PAVOT

File Number:

DGC 1759 of 2013

Judgment of:

Judge Small

Hearing date:

4 November 2015

Date of Last Submission:

6 November 2016

Delivered at:

Dandenong

Delivered on:

8 July 2016

REPRESENTATION

Counsel for the Applicant:

Ms O'Connell

Solicitors for the Applicant:

Fiona R McGregor

Counsel for the Respondent:

Self-represented

Solicitors for the Respondent:

Self-represented

ORDERS

IT IS DECLARED

Pursuant to s.90RD of the Family Law Act 1975 that a de facto relationship existed between the Applicant Mr Randall and the Respondent Ms Pavot between December 2003 and August 2009.

IT IS ORDERED THAT

The court being satisfied that the Initiating Application filed 28 June 2013 and the Amended Initiating Application filed 28 August 2013 were filed out of time, those Applications are hereby dismissed pursuant to s.44(5) of the Family Law Act 1975.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 1759 of 2013

MR RANDALL

Applicant

And

MS PAVOT

Respondent

REASONS FOR JUDGMENT

Introduction

This is a property matter arising out of the breakdown of the de facto relationship between Mr Randall (“Mr Randall”) and Ms Pavot (“Ms Pavot”).
The only issue for decision at this stage is whether Mr Randall's Initiating Application in relation to a property settlement filed on 28 June 2013 ought to be dismissed for having been brought out of time, and that issue depends on a determination of the date of separation between the parties.
Ms Pavot says the relationship ended in August 2009 when she, her daughter and the parties’ two children left her home at Property S (“the Property S property”) and went to live with her father at his home in (omitted).
Mr Randall acknowledges that Ms Pavot and the children, X aged ten and Y aged eight have lived at (omitted) since…

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 Randall and Pavot

Details

AGLC: Randall and Pavot [2016] FCCA 1620
Case: [2016] FCCA 1620
Decision Date: 8 July 2016

CaseChat Overview and Summary

In the matter of *Randall and Pavot*, heard by Judge Small, the applicant, Mr Randall, sought declarations and orders concerning a de facto relationship with the respondent, Ms Pavot. The core of the dispute revolved around the existence of a de facto relationship and the timeliness of the applications filed by Mr Randall.

The court was required to determine two primary legal issues. Firstly, whether a de facto relationship existed between Mr Randall and Ms Pavot, and if so, for what period. Secondly, whether the applications filed by Mr Randall were made within the time limits prescribed by the *Family Law Act 1975*.

Judge Small declared that a de facto relationship existed between the parties from December 2003 to August 2009, pursuant to section 90RD of the *Family Law Act 1975*. However, the court was satisfied that the Initiating Application filed on 28 June 2013 and the Amended Initiating Application filed on 28 August 2013 were lodged out of time. Consequently, these applications were dismissed pursuant to section 44(5) of the *Family Law Act 1975*.

Orders

Orders of the court

IT IS DECLARED

Pursuant to s.90RD of the Family Law Act 1975 that a de facto relationship existed between the Applicant Mr Randall and the Respondent Ms Pavot between December 2003 and August 2009.

IT IS ORDERED THAT

The court being satisfied that the Initiating Application filed 28 June 2013 and the Amended Initiating Application filed 28 August 2013 were filed out of time, those Applications are hereby dismissed pursuant to s.44(5) of the Family Law Act 1975.

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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