Robe and Milling - [2017] FCCA 536

FEDERAL CIRCUIT COURT OF AUSTRALIA

ROBE & MILLING

[2017] FCCA 536

Catchwords:
FAMILY LAW – De facto property – declaration of de facto relationship – short relationship – post-separation contributions to the family – child of the de facto relationship.

Legislation:

Family Law Act 1975, ss.4AA, 44(6), 60HA, 60HB, 60H, 79, 90RB, 90RD, 90SB, 90SF, 90SK, & 90SM

Cases cited:
Stanford & Stanford (2012) FLC 93-518
Rubenstein & Hartnett [2011] FMCAfam 876
Lee & Hutton [2013] FamCA 745
Jonah & White [2011] FamCA 221
Watson & Ling [2013] FamCA 57
In the Marriage of Hickey (2003) 30 Fam LR 355
Williams & Williams [1985] HCA 52

Applicant:

MS ROBE

Respondent:

MR MILLING

File Number:

ADC 654 of 2013

Judgment of:

Judge Cole

Hearing dates:

8, 9, 10 & 11 February 2016, 29 &

30 August 2016

Date of Last Submission:

30 August 2016

Delivered at:

Adelaide

Delivered on:

23 March 2017

REPRESENTATION

Counsel for the Applicant:

Mr B McQuade

Solicitors for the Applicant:

Daniel Johns Lawyers

Counsel for the Respondent:

Mr J Bowler

Solicitors for the Respondent:

Martin Robinson Solicitors

ORDERS

That the applicant have leave to proceed out of time pursuant to s.44(6) of the Family Law Act 1975.
That there be a declaration pursuant to s.90RD of the Family Law Act 1975 that the parties were in a de facto relationship from April to June 2009.
That the respondent pay to the applicant the sum of ONE HUNDRED AND TWELVE THOUSAND DOLLARS, FOUR HUNDRED AND NINETY-FOUR DOLLARS AND SEVENTY-FOUR CENTS ($112,494.74.00) within sixty (60) days of the date of this Order.
That upon payment of the sum of monies referred to in paragraph 3 hereof:
(a)any interest the applicant may have in the property in the possession or control of the respondent vest in the respondent,
(b)any interest the respondent may have in the property in the possession or control of the applicant vest in the applicant absolutely.
That the proceedings be otherwise dismissed.
That there be liberty to apply as to consequential orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 654 of 2013

MS ROBE

Applicant

And

MR MILLING

Respondent

REASONS FOR JUDGMENT

The Proceedings

In these proceedings, the parties and each of their witnesses have at some time engaged in deceptive conduct.
The respondent in these proceedings engages in online gambling. He is unable to maintain an account with a number of agencies, due in part to the system he uses (and I put this in my words) of spreading the bets.
As a consequence, the applicant, the witnesses called by the applicant including her sister and her mother, and the witnesses called by the respondent including his mother and his current wife, all at one time or another held accounts in their name on his behalf.[1]
[1] See respondent’s trial affidavit filed on 28 January 2016,…

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 Robe and Milling

Details

AGLC: Robe and Milling [2017] FCCA 536
Case: [2017] FCCA 536
Decision Date: 23 March 2017

CaseChat Overview and Summary

In the matter of *Robe and Milling*, heard by Judge Cole, the applicant sought leave to proceed out of time under section 44(6) of the *Family Law Act 1975* and a declaration that the parties were in a de facto relationship. The dispute concerned the division of property following the termination of this relationship.

The court was required to determine whether to grant the applicant leave to commence proceedings out of time, and if so, whether the parties had indeed been in a de facto relationship between April and June 2009. Further, the court needed to make orders regarding the division of property and the finalisation of the proceedings.

Judge Cole granted the applicant leave to proceed out of time and declared that the parties were in a de facto relationship from April to June 2009. The court ordered the respondent to pay the applicant a sum of $112,494.74 within sixty days. Upon this payment, any interest the applicant had in property held by the respondent would vest in the respondent, and any interest the respondent had in property held by the applicant would vest absolutely in the applicant. The proceedings were otherwise dismissed, with liberty to apply as to consequential orders.

Orders

Orders of the court

That the applicant have leave to proceed out of time pursuant to s.44(6) of the Family Law Act 1975.

That there be a declaration pursuant to s.90RD of the Family Law Act 1975 that the parties were in a de facto relationship from April to June 2009.

That the respondent pay to the applicant the sum of ONE HUNDRED AND TWELVE THOUSAND DOLLARS, FOUR HUNDRED AND NINETY-FOUR DOLLARS AND SEVENTY-FOUR CENTS ($112,494.74.00) within sixty (60) days of the date of this Order.

That upon payment of the sum of monies referred to in paragraph 3 hereof:

(a) any interest the applicant may have in the property in the possession or control of the respondent vest in the respondent,

(b) any interest the respondent may have in the property in the possession or control of the applicant vest in the applicant absolutely.

That the proceedings be otherwise dismissed.

That there be liberty to apply as to consequential orders.

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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