RUSSELL & ROVANIO - [2013] FamCA 1047

FAMILY COURT OF AUSTRALIA

RUSSELL & ROVANIO

[2013] FamCA 1047

FAMILY LAW – DECLARATION – De facto relationship – No dispute as to the existence of a relationship but rather when it ended – Respondent’s evidence rejected – Declaration made.

Family Law Act 1975 (Cth)

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APPLICANT:

Mr Russell

RESPONDENT:

Mr Rovanio

FILE NUMBER:

MLC

5402

2012

DATE DELIVERED:

6 November 2013

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

6 November 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Mellas

SOLICITOR FOR THE APPLICANT:

Joseph Guss, Lawyer

THE RESPONDENT:

In Person

Orders

That the Court declares that the parties were in a de facto relationship from 2001 until it ended in September 2011.
All interim applications are otherwise dismissed save as to costs.
The application for final orders and the response thereto are referred to the next judicial docket allocation for the matter to be listed for a first day hearing before a judge.
The Court certifies that it was appropriate and reasonable in the circumstances to brief counsel.
Any application for costs by any party arising out of these interim proceedings and orders shall be by written submission filed by no later than 4 pm on 20 November 2013 and served accordingly with the original submission endorsed that it has been so served and any party receiving such submission shall have until 4 pm on 27 November 2013 to respond similarly endorsed as to service and any judgment shall be delivered from chambers.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5402 of 2012

Mr Russell

Applicant

And

Mr Rovanio

Respondent

REASONS FOR JUDGMENT

By an application filed on 18 June 2012, Mr Russell, the applicant, sought an order for the alternation of property interests, specifically those of or with Mr Rovanio, who is the respondent. The application was brought under section 90SM of the Family Law Act 1975. Subject to certain conditions, that provision empowers the court to make such order as it considers appropriate after the break down of a de facto relationship. For the Court to be able to exercise that power, the jurisdiction has to be shown to exist. Here, it is disputed.
Section 39A of the Act provides that a de facto financial cause may be instituted under the Act. The criteria for the exercise of this Court’s jurisdiction in this case were not disputed, save for one issue. In his application, the applicant pleaded that the de facto relationship ended in March 2012. The…

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.

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Details

AGLC: RUSSELL & ROVANIO [2013] FamCA 1047
Case: [2013] FamCA 1047
Decision Date: 6 November 2013

CaseChat Overview and Summary

In the matter of *Russell & Rovanio*, heard before Cronin J, the dispute concerned the existence and duration of a de facto relationship between the parties. The applicant sought final orders in relation to this relationship, while the respondent had filed a response.

The primary legal issue before the Court was to determine whether the parties had been in a de facto relationship and, if so, for what period. This determination was a prerequisite for any further substantive orders concerning the division of property or other matters arising from such a relationship.

Cronin J declared that the parties were in a de facto relationship from 2001 until its termination in September 2011. Having made this declaration, the Court dismissed all interim applications, save for those relating to costs. The applications for final orders and the response were referred for listing for a first-day hearing before a judge. The Court also certified that it was appropriate to brief counsel and set out a timetable for written submissions regarding costs arising from the interim proceedings.

Orders

Orders of the court

That the Court declares that the parties were in a de facto relationship from 2001 until it ended in September 2011.

All interim applications are otherwise dismissed save as to costs.

The application for final orders and the response thereto are referred to the next judicial docket allocation for the matter to be listed for a first day hearing before a judge.

The Court certifies that it was appropriate and reasonable in the circumstances to brief counsel.

Any application for costs by any party arising out of these interim proceedings and orders shall be by written submission filed by no later than 4 pm on 20 November 2013 and served accordingly with the original submission endorsed that it has been so served and any party receiving such submission shall have until 4 pm on 27 November 2013 to respond similarly endorsed as to service and any judgment shall be delivered from chambers.

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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