Somers and Collier

[2016] FCCA 1629

FEDERAL CIRCUIT COURT OF AUSTRALIA

SOMERS & COLLIER [2016] FCCA 1629

Catchwords:  
FAMILY LAW – Whether de facto relationship exists – consideration of section 4AA(2) – application dismissed.

Legislation:

Family Law Act 1975, ss.4AA, 90RD, 90SB

Jonah & White [2011] FamCA 221
Lynam v Director-General of Social Security (1983) 52 ALR 128
Onslow & Onslow [2016] FamCAFC 7
Sinclair & Whittaker (2013) FLC 93-551

Applicant: MR SOMERS

Respondent: MS COLLIER

File Number: SYC 7198 of 2013

Judgment of: Judge Sexton

Hearing dates: 9, 11 and 15 June 2015

Date of Last Submission: 14 August 2015

Delivered at: Sydney

Delivered on: 30 June 2016

REPRESENTATION

Counsel for the Applicant: Mr A. Givney

Solicitors for the Applicant: Schultz Toomey O'Brien Lawyers

Counsel for the Respondent: Ms S. Christie

Solicitors for the Respondent: Watts Mccray Lawyers

THE COURT ORDERS THAT:

1. The Application filed on 9 December 2013 be dismissed.

2. Any application for costs be filed and served within 28 days.

3. Any response to the application for costs be filed and served within a further 28 days.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 7198 of 2013

MR SOMERS

Applicant

And

MS COLLIER

Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant seeks final Orders for property adjustment under the Family Law Act 1975. As a preliminary issue, the Applicant seeks a declaration pursuant to s. 90RD of the Family Law Act 1975 that the parties were in a de facto relationship between (omitted) 1998 and 2 April 2013.  

2. The Applicant says it was only after the relationship was over that it was drawn to his attention that he and the Respondent had been in a de facto relationship.

3. The Applicant’s counsel submits that the evidence supports a finding that the parties were “living together” albeit for a substantial part of their relationship they maintained separate accommodation.”[1]

   [1] At page 5 of Applicant’s written submissions

4. The Respondent seeks an Order that the Application be dismissed for want of jurisdiction, with costs on an indemnity basis. The Respondent says that the parties were a couple, and that they shared a residence from (omitted) 2011 until late March 2013.  She says their romantic relationship had ended by approximately mid-2011. The Respondent asserts that the parties were never in a ‘de facto relationship’ such as to ground a declaration that a de facto relationship existed between them. The Respondent’s counsel submits that even if the Court were to find that the parties were in a de facto relationship during the shared residence period from May 2011 to March 2013, that period was less than the 2 year time period required pursuant to s.90SB. Counsel submits that the other provisions of s.90SB do not apply. The Applicant’s counsel submits that even if the Court finds the parties were in a de facto relationship of under 2 years, the Applicant would…