Rushdie and Mohsin - [2017] FamCA 859

FAMILY COURT OF AUSTRALIA

RUSHDIE & MOHSIN

[2017] FamCA 859

FAMILY LAW – JURISDICTION – De facto relationship – Where applicant sought a declaration that a de facto relationship had existed between the parties within the meaning of s 90SB of the Family Law Act 1975 (Cth) – Consideration of the circumstances set out in s 4AA(2) of the Family Law Act 1975 (Cth) – Where it was determined that the parties were living together in a de facto relationship – Where the threshold of two year cohabitation was satisfied – Where a declaration was made pursuant to s90RD of the Family Law Act 1975 (Cth).

Evidence Act 1995 (Cth) s 140(1)
Family Law Act 1975 (Cth) ss 4(1), 4AA, 90RD, 90SB

Jonah & White (2011) 45 Fam LR 460
Ricci v Jones [2011] FamCAFC 222
Sha & Cham [2017] FamCAFC 161
Sinclair & Whittaker (2013) FLC 93-551

APPLICANT:

Ms Rushdie

RESPONDENT:

Mr Mohsin

FILE NUMBER:

SYC

5450

2015

DATE DELIVERED:

27 October 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Johnston J

HEARING DATE:

28 & 29 March 2017; 18 & 19 September 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Schonell

SOLICITOR FOR THE APPLICANT:

Dignan & Hanrahan Solicitors & Attorneys

COUNSEL FOR THE RESPONDENT:

Mr Richards

SOLICITOR FOR THE RESPONDENT:

Macpherson & Kelley Lawyers

Orders

It is declared pursuant to s 90RD(1) and (2) of the Family Law Act 1975 (Cth) that a de facto relationship existed between Ms Rushdie and Mr Mohsin during the period commencing not later than August 2009 and concluding in May 2015.
The proceedings are listed for further directions at 9.30 am on 8 November 2017.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rushdie & Mohsin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5450 of 2015

Ms Rushdie

Applicant

And

Mr Mohsin

Respondent

REASONS FOR JUDGMENT

Introduction

The issue in these proceedings is whether this Court has jurisdiction to make property settlement orders in the circumstances of the relationship of the parties.
The applicant is Ms Rushdie and the respondent is Mr Mohsin. The applicant is seeking to have property orders made.
The applicant asserts that the parties had a de facto relationship which would attract application of the relevant financial provisions of the Family Law Act 1975 (Cth) (“the Act”). The respondent contends that the parties’ relationship was that of “boyfriend/girlfriend” which at no time fell within the meaning of “de facto relationship” in the Act.
On 16…

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 Rushdie and Mohsin

Details

AGLC: Rushdie and Mohsin [2017] FamCA 859
Case: [2017] FamCA 859
Decision Date: 27 October 2017

CaseChat Overview and Summary

In the matter of *Rushdie and Mohsin*, heard before Johnston J in the Federal Circuit Court of Australia, the dispute concerned the existence of a de facto relationship between Ms Rushdie and Mr Mohsin. The court was required to determine whether the parties had been in a de facto relationship for a period relevant to the application of the *Family Law Act 1975* (Cth).

The central legal issue before the court was whether the evidence established that Ms Rushdie and Mr Mohsin had been in a de facto relationship within the meaning of the *Family Law Act 1975* (Cth). This involved an assessment of the nature of their relationship and the duration of cohabitation, if any, to satisfy the statutory criteria.

Johnston J applied the provisions of sections 90RD(1) and (2) of the *Family Law Act 1975* (Cth) to the facts before him. The court found that a de facto relationship did exist between Ms Rushdie and Mr Mohsin, commencing no later than August 2009 and concluding in May 2015. The court declared the existence of this de facto relationship pursuant to the relevant sections of the Act. The proceedings were subsequently listed for further directions.

Orders

Orders of the court

It is declared pursuant to s 90RD(1) and (2) of the Family Law Act 1975 (Cth) that a de facto relationship existed between Ms Rushdie and Mr Mohsin during the period commencing not later than August 2009 and concluding in May 2015.

The proceedings are listed for further directions at 9.30 am on 8 November 2017.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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