Ricci & Jones

[2011] FamCAFC 222

FAMILY COURT OF AUSTRALIA

RICCI & JONES [2011] FamCAFC 222

FAMILY LAW – APPEAL – DE FACTO RELATIONSHIP – Where the appellant appeals against the summary dismissal of proceedings brought by her seeking property division between her and the respondent pursuant to Part VIIIAB of the Family Law Act 1975 (Cth) (“the Act”) – Where the appellant conceded that the Federal Magistrate had identified the correct legal principles in relation to summary dismissal – Where the Federal Magistrate had accepted all of the evidence of the appellant for the purposes of the summary dismissal proceedings – Whether the Federal Magistrate erred by making findings based on insufficient or untested evidence before the court – Whether the Federal Magistrate erred by considering only those circumstances listed in s 4AA(2) of the Act and thereby failing to have regard to all the circumstances of the parties’ relationship as required by s 4AA(1)(c) of the Act – Whether the Federal Magistrate erred by failing to take into account the fact that at a subsequent final hearing the court could, in exercising its discretion under s 4AA(4) of the Act, choose to have regard to one or more additional matters to which her Honour did not have regard, or to attach to one or more matters a different weight than her Honour attached, and could on that basis conclude that a de facto relationship did exist between the parties – Whether the Federal Magistrate erred by failing to independently consider, and reach her own independent conclusion on, the question of whether it is a necessary precondition of a de facto relationship that the parties must live together – No appealable error established.

Family Law Act 1975 (Cth), s 4AA

Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720
Jonah & White [2011] FamCA 221
Moby v Schulter (2010) FLC 93-447

APPELLANT: Ms Ricci

RESPONDENT: Mr Jones

FILE NUMBER: MLC 5237 of 2010

APPEAL NUMBER: SA 8 of 2011

DATE DELIVERED: 24 November 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Melbourne

JUDGMENT OF: May, Ainslie-Wallace &
Johnston JJ

HEARING DATE: 6 October 2011

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 17 December 2010

LOWER COURT MNC: [2010] FMCAfam 1425

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr McConchie

SOLICITOR FOR THE APPELLANT: Fong & Co

COUNSEL FOR THE RESPONDENT: Ms MacMillan SC

SOLICITOR FOR THE RESPONDENT: Schetzer Constantinou

Orders

1. That the appeal against the orders made by the Honourable Federal Magistrate Riley on 17 December 2010 be dismissed.

2. No order as to costs.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SA 8 of 2011
File Number: MLC 5237 of 2010

MS RICCI

Appellant

And

MR JONES

Respondent

REASONS FOR JUDGMENT

1. Ms Ricci (“the appellant”) appeals against an order for summary dismissal of her application brought…