FAMILY COURT OF AUSTRALIA
| SAM & LAMOTHE | [2016] FamCA 576 |
| FAMILY LAW – JURISDICTION - DE FACTO RELATIONSHIP – Property settlement – Where the respondent seeks a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) (“the Act”) that the parties relationship was a “de facto relationship” within the meaning of s 4AA(2) of the Act – Whether the parties were living together on a “genuine domestic basis” – Where it is agreed that the parties were in a de facto relationship for an earlier period of time – Where the circumstances taken together support a finding that the parties were in a de facto relationship at the relevant time – Declaration made. |
| Family Law Act 1975 (Cth) ss 4AA(1), 4AA(2), 4AA(5)(b), 90RD, 90SM, 90SK, 90SB Family Law Amendment (De facto Financial Matters and Other Measures) Act 2008 (Cth) Family Law Rules 2004 (Cth) r 15.10 |
| Barry and Dalrymple [2010] FamCA 1271 In the Marriage of Cierpiatka (1999) 25 Fam LR 548 Nelson v Nelson (1995) 184 CLR 538 Roy v Sturgeon (1986) 11 Fam LR 271 Sinclair & Whittaker (2013) FLC 93-551 |
| APPLICANT: | Mr Sam |
| RESPONDENT: | Ms Lamothe |
| FILE NUMBER: | SYC | 4095 | of | 2014 |
| DATE DELIVERED: | 15 July 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Loughnan J |
| HEARING DATE: | 6 - 10 June 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Rosic |
| SOLICITOR FOR THE APPLICANT: | Calvin Nelson & Co |
| COUNSEL FOR THE RESPONDENT: | Ms Gibbons |
| SOLICITOR FOR THE RESPONDENT: | Maveston Legal |
Orders
The Court declares pursuant to s 90RD of the Family Law Act 1975 (“the Act”) that the parties were in a de facto relationship within the meaning of s 4AA of the Act for the following periods:
(a) 1991 to June 2002; and
(b) 24 April 2009 to 6 April 2011.
The proceedings are adjourned to a date to be fixed in relation to the respondent’s application for leave pursuant to s 44(6) of the Act to file an application for property settlement.
No order is made as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sam & Lamothe 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 SYDNEY |
FILE NUMBER: SYC 4095 of 2014
| Mr Sam |
Applicant
And
| Ms Lamothe |
Respondent
REASONS FOR JUDGMENT
Introduction
By her Initiating Application filed 3 July 2014, Ms Lamothe sought orders for settlement of property against Mr Sam. She subsequently sought orders for leave to commence those proceedings out of time.
The present hearing relates to a threshold issue in respect of those proceedings. Mr Sam (“the applicant”), by his Application in a Case filed 18 September 2015 sought a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) (“the Act”) that the parties were not in a de facto relationship on or at any date subsequent to, 1 March 2009 and that accordingly, this Court does not have jurisdiction…
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- AGLC
- Sam and Lamothe [2016] FamCA 576
- Case
- [2016] FamCA 576
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the parties met the definition of a de facto relationship as defined in section 4AA of the *Family Law Act 1975* for specific periods. This involved assessing the nature of their relationship during those times.
Loughnan J applied the criteria set out in section 4AA of the *Family Law Act 1975* to the evidence presented. The court found that the parties were in a de facto relationship for two distinct periods: from 1991 to June 2002, and again from 24 April 2009 to 6 April 2011.
Consequently, the court declared that a de facto relationship existed during these periods. The proceedings were adjourned to allow for the respondent's application for leave to file an application for property settlement, and no orders were made regarding costs.
Orders
Orders of the court
1.
The Court declares pursuant to s 90RD of the Family Law Act 1975 (“the Act”) that the parties were in a de facto relationship within the meaning of s 4AA of the Act for the following periods:
(a) 1991 to June 2002; and
(b) 24 April 2009 to 6 April 2011.
2.
The proceedings are adjourned to a date to be fixed in relation to the respondent’s application for leave pursuant to s 44(6) of the Act to file an application for property settlement.
3.
No order is made as to costs.
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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