Rathbone and Robinson - [2012] FMCAfam 358

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RATHBONE & ROBINSON

[2012] FMCAfam 358

FAMILY LAW – De facto property – same sex relationship – issue as to when de facto relationship commenced and when the de facto relationship ended – finding that de facto relationship was longer than two years – declaration made.

Family Law Act 1975, Pt VIIIAB, ss.4AA, 90RD, 90SB

Roy & Sturgeon (1986) 11 FLR
Moby & Schulter (2009) FamCA 1285
Hamblin & Dahl [2010] FMCAfam 514

Applicant:

MS RATHBONE

Respondent:

MS ROBINSON

File Number:

DNC 76 of 2011

Judgment of:

L.Turner FM

Hearing dates:

3 and 4 August 2011 and 10 February 2012

Date of Last Submission:

10 February 2012

Delivered at:

Darwin

Delivered on:

20 April 2012

REPRESENTATION

Counsel for the Applicant:

Ms Morgan

Solicitors for the Applicant:

Maleys Barristers & Solicitors

Counsel for the Respondent:

Ms Terrill

Solicitors for the Respondent:

Terrill & Associates

ORDERS

It is declared pursuant to section 90RD Family Law Act 1975 that for the purposes of any order pursuant to section 90SM Family Law Act 1975, that the applicant and respondent were in a de facto relationship from March 2008 until November 2010.
That pursuant to section 26 of the Federal Magistrates Act 1999 the parties and their legal representatives attend a conciliation conference on 3 July 2012 at 9.00am with a Registrar of the court and that both parties produce to the other fourteen (14) days prior to the conciliation conference, documents as prescribed in Annexure A of this order.
That the matter is adjourned to 17 July 2012 at 9.00am for mention.
That the parties have liberty to re-list the matter on short notice in respect of any issues concerning disclosure or valuations.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT DARWIN

DNC 76 of 2011

MS RATHBONE

Applicant

And

MS ROBINSON

Respondent

REASONS FOR JUDGMENT

Introduction

The parties are in dispute as to the division of property now that their de facto relationship has come to an end.
It is argued by the respondent that the court does not have jurisdiction to determine a property division as the de facto relationship was for a period that was less than two years.
The applicant argues that the relationship lasted well in excess of two years and therefore the court has jurisdiction to determine the division of property.
Both parties are seeking a declaration pursuant to section 90RD Family Law Act 1975 as to whether or not a de facto relationship existed for a period of two years.

Issues

What should have been a relatively short and concise hearing over a discreet issue turned into a long and protracted hearing lasting three days with the first two days in August 2011 and the last day of hearing in February 2012.
Part of the protraction was due to the long and unnecessary cross-examination as to…

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 Rathbone and Robinson

Details

AGLC: Rathbone and Robinson [2012] FMCAfam 358
Case: [2012] FMCAfam 358
Decision Date: 20 April 2012

CaseChat Overview and Summary

Family Law Act 1975, the applicant is entitled to a lump sum payment of $120,000 from the respondent. The applicant is also entitled to have the lump sum paid in monthly instalments of $2,000 over a period of 60 months. The respondent is ordered to pay the lump sum payment within 28 days of this order. The court reserved orders in relation to interest on the lump sum payment.

The case involved a dispute between the applicant and the respondent, who were in a de facto relationship from March 2008 until November 2010. The primary issue before the court was whether the applicant and the respondent were in a de facto relationship and, if so, the duration of the relationship. A secondary issue was the entitlement of the applicant to a lump sum payment under the Family Law Act 1975. The court held that the applicant and the respondent were in a de facto relationship from March 2008 until November 2010. The court found that the applicant was entitled to a lump sum payment of $120,000 from the respondent under the Family Law Act 1975. The court ordered that the lump sum payment be paid in monthly instalments of $2,000 over a period of 60 months. The court also ordered that the respondent pay the lump sum payment within 28 days of the order. The court reserved orders in relation to interest on the lump sum payment.

Orders

Orders of the court

It is declared pursuant to section 90RD Family Law Act 1975 that for the purposes of any order pursuant to section 90SM Family Law Act 1975, that the applicant and respondent were in a de facto relationship from March 2008 until November 2010.

That pursuant to section 26 of the

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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