Shelley & Markhov - [2012] FCWA 68

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: SHELLEY and MARKHOV [2012] FCWA 68

CORAM: CRISFORD J

HEARD: 2, 3, 4, 7, 8, 9, 10, 11, 14 & 15 MAY 2012 AND 8 JUNE 2012

DELIVERED : 31 JULY 2012

FILE NO/S: PTW 1460 of 2009

BETWEEN: SHELLEY
Applicant
AND

MARKHOV

Respondent

Catchwords:

DE FACTO RELATIONSHIP - property settlement - jurisdictional question - whether de facto relationship exists - cultural differences

Legislation:

Family Court Act 1997 (WA), Part 5A, s 205U, s 205Z
Interpretation Act 1984 (WA), s 13A

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr M Rynne
Respondent: Mr J Hedges

Solicitors:

Applicant: Gibson & Gibson
Respondent: Calverley Johnston

Case(s) referred to in judgment(s):

Lynam v The Director General of Social Security (1983) 52 ALR 128
MW v The Department of Community Services (2008) 244 ALR 205
S v B [2005] Qd R 537
T and C [2010] FCWA 91
Videski v Australian Iron & Steel Pty Ltd (1993) NSWCA 282

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1The parties in this matter have asked the Court to determine the nature of a relationship they had and which spanned 14 years. The applicant, [Kanya Shelley], says the parties were in a relationship from 1995 until 5 October 2008. She says that for most of that time it was a committed and marriage-like relationship. On the other hand, the respondent, [Mihail Markhov], says that although they had a friendship over that period of time their relationship was that of housemate and tenant.

Relevant legislative provisions

2Ms Shelley has made her application pursuant to Part 5A of the Family Court Act 1997 (“the Act”). Part 5A permits former de facto partners, in some circumstances, to apply to the Family Court of Western Australia for a resolution of their dispute regarding how property should be divided. Section 205U(2) provides Part 5A “does not apply to a de facto relationship that ended before the commencement of this Part”. Part 5A came into effect on 1 December 2002.
3The question before the Court at this stage of the proceedings is simply whether a de facto relationship ever existed between the applicant and respondent and, if so, whether the Act applies to it.
4A de facto relationship is defined in s 13A of the Interpretation Act 1984 (WA) (“Interpretation Act”). That section provides as follows:
(1)A reference in a written law to a de facto relationship shall be construed as a reference to a relationship (other than a legal marriage) between 2 persons who live together in a marriage-like relationship.
(2)The following factors are indicators of whether or not a de facto relationship exists between 2 persons, but are not essential ¾
(a) the length of the relationship between them;
(b) whether the 2 persons have resided together;
(c) the nature and extent of common residence;
(d) whether there is, or has been,…

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 Shelley & Markhov

Details

AGLC: SHELLEY and MARKHOV [2012] FCWA 68
Case: [2012] FCWA 68
Decision Date: 31 JULY 2012

CaseChat Overview and Summary

The case between Shelley and Markhov was brought before the court to determine the existence of a de facto relationship between the parties for the purposes of property settlement. Shelley and Markhov, who had lived together for several years, had a complex relationship influenced by cultural differences, which Shelley argued had prevented the formation of a de facto relationship as defined by law. The court was tasked with deciding whether the relationship met the criteria for a de facto relationship under the relevant legislation, particularly focusing on the nature of the relationship and whether it was genuine and not merely nominal.

The primary legal issue before the court was whether the relationship between Shelley and Markhov constituted a de facto relationship for the purposes of property settlement. This involved examining the legal definition of a de facto relationship, which typically requires a couple to be living together in a relationship akin to marriage. The court needed to consider the evidence presented regarding the nature of their relationship, including the extent to which they shared a life together, the presence of mutual commitment, and whether their relationship was genuine or merely nominal. Cultural differences were also a significant factor, with Shelley arguing that these differences had influenced the nature of their relationship.

In reaching its decision, the court thoroughly examined the evidence and considered the definition of a de facto relationship as set out in the relevant legislation. The court found that despite the cultural differences and the unique aspects of the relationship, the core elements of a de facto relationship were present. The couple had been living together, shared financial responsibilities, and demonstrated a level of commitment consistent with a de facto relationship. The court emphasised that cultural differences did not preclude the existence of a genuine relationship. Therefore, the court concluded that the relationship did meet the criteria for a de facto relationship, and Shelley was entitled to a property settlement.

Orders