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…
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- AGLC
- Rubenstein and Hartnett [2011] FMCAfam 876
- Case
- [2011] FMCAfam 876
- Decision Date
CaseChat Overview and Summary
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
1.
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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