Smyth & Pappas

Case [2011] FamCA 434

FAMILY COURT OF AUSTRALIA

SMYTH & PAPPAS [2011] FamCA 434
FAMILY LAW – DE FACTO RELATIONSHIP – Where applicant seeks declaration that a de facto relationship existed under s 90RD of the Family Law Act 1975 (Cth) – Where parties disputed the date that the de facto relationship ended – De facto relationship began in 1999 and finally ended in December 2009. Between December 2005 and July 2006 and December 2007 and December 2008 the relationship was suspended but had not ended in any permanent sense.
Family Law Act 1975 (Cth) s 4AA, s 90RD
Barry v Dalrymple [2010] FamCA 1271
Jonah and White [2011] FamCA 221
Moby and Schulter [2010] FamCA 748
Truman and Clifton [2010] FCWA 91
APPLICANT: Ms Smyth
RESPONDENT: Mr Pappas
FILE NUMBER: MLC 10514 of 2010
DATE DELIVERED: 9 June 2011
PLACE DELIVERED: Melbourne
PLACE HEARD: Melbourne
JUDGMENT OF: Cronin J
HEARING DATE: 5 AND 6 May 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Mort
SOLICITOR FOR THE APPLICANT: Berger Kordos Lawyers
COUNSEL FOR THE RESPONDENT: Mr Duckett
SOLICITOR FOR THE RESPONDENT: Michael T Helman

Orders

IT IS DECLARED THAT

  1. Pursuant to sections 90RD and 4AA of the Family Law Act 1975 (Cth) a de facto relationship existed between the applicant and the respondent during the following periods:

    (a)       1999 until December 2005;

    (b)July 2006 until December 2009 noting that during the 12 months between December 2007 and December 2008, the de facto relationship was suspended but not ended.

IT IS ORDERED THAT

  1. That all extant applications for final orders be otherwise referred to the Registrar to await the allocation of  a hearing in accordance with the declaration referred to in paragraph 1 hereof.

  2. That liberty be reserved to either party to apply for any order consequent upon these orders.

IT IS CERTIFIED THAT

  1. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel.

IT IS NOTED that publication of this judgment under the pseudonym Smyth & Pappas is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10514  of 2010

Ms Smyth

Applicant

And

Mr Pappas

Respondent

REASONS FOR JUDGMENT

  1. This is an application by Ms Smyth (“the applicant”) for a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) (“the Act”) that she was in a de facto relationship with Mr Pappas (“the respondent”) on and after 1 March 2009 but also for specific periods prior to that date generally.

  2. Section 90RD of the Act is relevant because the applicant filed an application on 12 November 2010 inter alia seeking orders under s 90SM of the Act and asserting at the same time, that the parties were in a de facto relationship.

The legal issues

  1. It was common ground between the parties that of the two questions, the critical one was whether the parties were in a de facto relationship on 1 March 2009.  It is a jurisdictional matter. 

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Details
AGLC
Smyth & Pappas [2011] FamCA 434
Case
[2011] FamCA 434
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, Justice Cronin considered a dispute between the applicant and the respondent concerning the existence and duration of a de facto relationship. The primary issue before the court was to determine whether a de facto relationship, as defined by the *Family Law Act 1975* (Cth), existed between the parties and, if so, for what periods. This determination was crucial for the subsequent division of property.

The court was required to interpret and apply sections 90RD and 4AA of the *Family Law Act 1975* (Cth) to the facts presented. Specifically, the court had to ascertain whether the criteria for a de facto relationship were met during the periods in question, and to consider the impact of any interruptions or suspensions on the continuity of that relationship.

Justice Cronin declared that a de facto relationship did exist between the applicant and the respondent during two distinct periods: from 1999 until December 2005, and again from July 2006 until December 2009. Importantly, the court found that while the de facto relationship was suspended for the 12 months between December 2007 and December 2008, it was not terminated during that interval. All other outstanding applications for final orders were referred to the Registrar for future hearing, with liberty reserved for either party to seek further orders.

Orders

Orders of the court

IT IS DECLARED THAT

1.

Pursuant to sections 90RD and 4AA of the Family Law Act 1975 (Cth) a de facto relationship existed between the applicant and the respondent during the following periods:

(a) 1999 until December 2005;

(b) July 2006 until December 2009 noting that during the 12 months between December 2007 and December 2008, the de facto relationship was suspended but not ended.

IT IS ORDERED THAT

2.

That all extant applications for final orders be otherwise referred to the Registrar to await the allocation of a hearing in accordance with the declaration referred to in paragraph 1 hereof.

3.

That liberty be reserved to either party to apply for any order consequent upon these orders.

IT IS CERTIFIED THAT

4.

Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel.

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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