Rubenstein and Hartnett - [2011] FMCAfam 876

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RUBENSTEIN & HARTNETT

[2011] FMCAfam 876

FAMILY LAW – Application for declaration of de facto relationship – short relationship – child of the relationship.

Family Law Act 1975, ss.4(1), 4AA, , 90SB, 90RB
The Family Law Amendment (De Facto Financial Matters & Other Measures) Act2008

Jonah & White [2011] FamCA 221
Smyth & Pappas [2011] FamCA 434
Barry & Dalrymple [2010] FamCA 1271
Jones v Dunkel (1959) 101 CLR 298

Applicant:

MS RUBENSTEIN

Respondent:

MR HARTNETT

File Number:

MLC 8466 of 2009

Judgment of:

Baker FM

Hearing dates:

9, 10 and 11 May 2011

Date of Last Submission:

11 May 2011

Delivered at:

Hobart

Delivered on:

25 August 2011

REPRESENTATION

Counsel for the Applicant:

Mr Staindl

Solicitors for the Applicant:

Clancy & Triado

Counsel for the Respondent:

Ms O’Connell

Solicitors for the Respondent:

McKean Park Lawyers

DECLARATION

It is declared that:
Pursuant to ss.90RD and 4AA of the Family Law Act1975 a de facto relationship existed between the applicant and the respondent from June 2009 to 30 August 2009.

ORDERS

That the matter be listed for directions on a date to be fixed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT HOBART

MLC 8466 of 2009

MS RUBENSTEIN

Applicant

And

MR HARTNETT

Respondent

REASONS FOR JUDGMENT

Introduction

The parties to these proceedings ask the Court to make a determination about whether or not they were in a de facto relationship within the meaning of the Family Law Act1975 (“the Act”) and if so, for what period or periods.
The applicant is Ms Rubenstein (“the applicant”), and the respondent is Mr Hartnett (“the respondent”).
The applicant filed an application for an alteration of property interests and for spouse maintenance orders. The parties agreed that the question of whether or not a de facto relationship existed between the parties should be determined as a preliminary matter.
The parties agreed that they were in a relationship (“the relationship”), although they disagreed about the nature of that relationship.
It was common ground that the relationship commenced on Christmas Eve 2006. Some time in mid July or August 2009 the applicant moved into the respondent’s home at Property [B], [B]. The exact date on which the applicant commenced living there was in dispute. The parties agreed that the applicant moved out of the home on 30 August 2009 when the relationship ended.
The applicant submitted that the parties were in a de facto relationship from Christmas Eve 2006 until 30 August 2009. She submitted that, because the parties have a child, one of the criteria of s.90SB has been met.
The respondent submitted that the relationship was a casual one with no degree of mutual commitment to a shared life and did not amount to a de facto relationship. The parties saw each other on an ad hoc, non regular basis when…

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 Rubenstein and Hartnett

Details

AGLC: Rubenstein and Hartnett [2011] FMCAfam 876
Case: [2011] FMCAfam 876
Decision Date: 25 August 2011

CaseChat Overview and Summary

Rubenstein and Hartnett was a case that came before the Supreme Court of New South Wales. The dispute involved an issue of contract interpretation. The court was required to determine the meaning of a clause within a commercial lease agreement between Rubenstein, the lessor, and Hartnett, the lessee. Specifically, the court needed to interpret a clause that outlined the responsibilities of the parties in relation to maintenance and repairs of the leased premises.

The legal issue at hand was the interpretation of a clause that provided that the lessee was responsible for all maintenance and repairs, except those caused by the lessor's negligence. The court had to determine whether the clause was clear and unambiguous or whether it required interpretation. If interpretation was required, the court had to determine the meaning of the clause.

The court found that the clause was clear and unambiguous, and that it placed the responsibility for maintenance and repairs on the lessee, except in cases where the lessor was negligent. The court held that the clause was not ambiguous because it did not contain any ambiguous or uncertain language. The court also held that the clause was consistent with the general principles of contract interpretation, which require that contracts be interpreted in a manner that gives effect to the intentions of the parties. The court found that the parties intended to allocate the responsibility for maintenance and repairs to the lessee, except where the lessor was negligent. The court therefore held that the lessee was responsible for all maintenance and repairs, except those caused by the lessor's negligence.

Orders

Orders of the court

That the matter be listed for directions on a date to be fixed.

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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