Scrivan & Neil - [2023] FedCFamC2F 949

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Scrivan & Neil [2023] FedCFamC2F 949

File number(s): PAC 3861 of 2022

Judgment of: JUDGE HARLAND

Date of judgment: 1 August 2023

Catchwords: FAMILY LAW – de facto - dispute as to length of de facto relationship - applicant contends relationship ended in 2021 - respondent contends relationship ended before 2009 and the court does not have jurisdiction

Legislation:
Corporations Act 2001 (Cth) s. 601AB

Family Law Act1975 (Cth) ss. 4AA, 90RD

Family Law Amendment (De Facto Financial Matters and Other Measures) Act2008 (Cth)

Cases cited:
Crick and Bennett [2018] FamCAFC 68

Cuan v Kostelac [2017] FamCAFC 188

Delamarre and Asprey [2014] FamCAFC 218

Fairburn and Radecki [2022] HCA 18

Lynam v Director General of Social Security (1983) 52 ALR 128

Sinclair and Whittaker [2013] FamCAFC 129

Division: Division 2 Family Law

Number of paragraphs: 200

Date of last submission/s: 11 May 2023

Date of hearing: 9, 10, and 11 May 2023

Place: Parramatta

Solicitor for the Applicant Mr Sim of Crowther Sim Lawyers

Counsel for the Respondent Mr Schonell

Solicitor for the Respondent Boyce & Boyce
ORDERS

PAC 3861 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR SCRIVAN

Applicant

AND:
MS NEIL

Respondent

ORDER MADE BY:

JUDGE HARLAND

DATE OF ORDER:

1 AUGUST 2023

THE COURT ORDERS THAT:
1.Pursuant to s90RD of the Family law Act 1975 (Cth), the court declares that the de facto relationship ended on 31 December 2003.
2.The application filed on filed 10 November 2022 be dismissed.
3.In the event the respondent seeks costs, the respondent file and serve written submissions and any supporting documents as to costs within 28 days.
4.The applicant file and serve written submissions and any and supporting documents as to costs 28 days thereafter.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE HARLAND

The sole issue I must determine in this case is when the parties’ de facto relationship ended. The applicant says that their relationship ended in October 2021. On his case he does not need leave to commence property proceedings. If he is correct, the matter should proceed on the usual property pathway. The respondent’s case is that 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.

Continue reading Scrivan & Neil

Details

AGLC: Scrivan & Neil [2023] FedCFamC2F 949
Case: [2023] FedCFamC2F 949
Decision Date

CaseChat Overview and Summary

In the matter of Scrivan and Neil, the Federal Circuit and Family Court of Australia, Division 2, was tasked with determining the end date of the de facto relationship between Mr. Scrivan and Ms. Neil. The applicant argued that the relationship ended in October 2021, whereas the respondent contended that the relationship ended in 2003. The Court's jurisdiction over the matter depended on the relationship's end date. The applicant bore the burden of proving that the relationship existed after 1 March 2009. The Court considered various factors, including family violence, the nature and existence of common residence, the degree of financial support and interdependence, and the reputation and public aspects of the relationship. After carefully reviewing the evidence, the Court found that the de facto relationship had ended by 31 December 2003. Consequently, the Court did not have jurisdiction over the matter. The Court ordered that the de facto relationship ended on 31 December 2003 and dismissed the applicant's application. The Court also directed that if the respondent sought costs, written submissions and any supporting documents should be filed within 28 days, followed by the applicant's submissions 28 days thereafter.

Orders