Somers & Collier - [2017] FamCAFC 123

FAMILY COURT OF AUSTRALIA

SOMERS & COLLIER

[2017] FamCAFC 123

APPEAL – DE FACTO – Where application for declaration of de facto relationship dismissed – Finding of de facto relationship is a jurisdictional fact – Section 90SB of the Family Law Act 1975 (Cth) has no work to do unless de facto relationship established – Not asserted that findings were unavailable on the evidence – Appeal dismissed.

Family Law Act 1975 (Cth) ss 4AA, 90RD, 90SB

DMW v CGW (1982) 151 CLR 491
Edwards v Noble (1971) 125 CLR 296
Norton & Locke (2013) FLC 93-567
Yunghanns & Ors v Yunghanns & Ors (1998) FLC 92-836

APPELLANT:

Mr Somers

RESPONDENT:

Ms Collier

FILE NUMBER:

SYC

7198

2013

APPEAL NUMBER:

111

2016

DATE DELIVERED:

11 July 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace, Ryan and Loughnan JJ

HEARING DATE:

20 June 2017

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

30 June 2016

LOWER COURT MNC:

[2016] FCCA 1629

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Knox SC

SOLICITOR FOR THE APPELLANT:

Schultz Toomey O’Brien Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Clifford

SOLICITOR FOR THE RESPONDENT:

Watts McCray Lawyers

Orders

The appellant be granted leave to rely on the Further Amended Notice of Appeal annexed to the affidavit filed 15 June 2017.
The appeal against the orders of Judge Sexton made on 30 June 2016 is dismissed.
The appellant pay the respondent’s costs of and incidental to the appeal, such costs to be agreed or assessed and to be paid within twenty eight (28) days from agreement or assessment.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 111 of 2016
File Number: SYC 7198 of 2013

Mr Somers

Appellant

and

Ms Collier

Respondent

REASONS FOR JUDGMENT

Mr Somers (“the appellant”) sought orders for property settlement against Ms Collier (“the respondent”). The appellant contended that he and the respondent had been in a de facto relationship and sought a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) (“the Act”) to that effect.
On 30 June 2016 Judge Sexton determined that a de facto relationship had never existed and the application for property settlement orders was dismissed.
The appellant appeals that determination.
In order to give context to the appeal, it is necessary to give some background about the parties’ relationship and 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 Somers & Collier

Details

AGLC: Somers & Collier [2017] FamCAFC 123
Case: [2017] FamCAFC 123
Decision Date: 11 July 2017

CaseChat Overview and Summary

Somers & Collier was a legal case that involved an appeal against orders made by Judge Sexton on 30 June 2016. The court was tasked with deciding whether the appellant should be granted leave to rely on the Further Amended Notice of Appeal, and if the appeal against the orders made by Judge Sexton was to be dismissed. Additionally, the court had to determine the costs associated with the appeal. The case was brought before the court with an affidavit filed on 15 June 2017, which contained the Further Amended Notice of Appeal.

The primary legal issue the court faced was whether the appellant should be permitted to rely on the Further Amended Notice of Appeal, which was not part of the original Notice of Appeal. The court also had to consider whether the appeal against the orders made by Judge Sexton should be dismissed and, if so, what the financial implications of such a dismissal would be for the parties involved. The court had to carefully examine the procedural aspects of the case and ensure that the appellant's rights were respected while also adhering to the rules of court.

The court concluded that the appellant should be granted leave to rely on the Further Amended Notice of Appeal. However, the appeal against the orders made by Judge Sexton was dismissed. The court found that the appellant had not demonstrated any grounds that warranted the overturning of Judge Sexton's orders. Additionally, the court ruled that the appellant must pay the respondent's costs of and incidental to the appeal. These costs were to be agreed upon or assessed and paid within 28 days of the agreement or assessment.

The final orders of the court included granting the appellant leave to rely on the Further Amended Notice of Appeal, dismissing the appeal against the orders of Judge Sexton, and directing the appellant to pay the respondent's costs of the appeal. The form of the order was subject to entry in the court's records.

Orders

Orders of the court

The appellant be granted leave to rely on the Further Amended Notice of Appeal annexed to the affidavit filed 15 June 2017.

The appeal against the orders of Judge Sexton made on 30 June 2016 is dismissed.

The appellant pay the respondent’s costs of and incidental to the appeal, such costs to be agreed or assessed and to be paid within twenty eight (28) days from agreement or assessment.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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