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,…
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- Robe and Milling [2017] FCCA 536
- Case
- [2017] FCCA 536
- Decision Date
CaseChat Overview and Summary
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
1.
That the applicant have leave to proceed out of time pursuant to s.44(6) of the Family Law Act 1975.
2.
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.
3.
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.
4.
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.
5.
That the proceedings be otherwise dismissed.
6.
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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