Sam and Lamothe - [2016] FamCA 576

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

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…

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 Sam and Lamothe

Details

AGLC: Sam and Lamothe [2016] FamCA 576
Case: [2016] FamCA 576
Decision Date: 15 July 2016

CaseChat Overview and Summary

In the matter of *Sam and Lamothe*, heard by Loughnan J, the primary dispute concerned whether the parties had been in a de facto relationship for the purposes of the *Family Law Act 1975* (Cth). This determination was critical for the respondent's ability to seek property settlement orders.

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

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.

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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