SPENCER & SPEIGHT - [2014] FamCA 436

FAMILY COURT OF AUSTRALIA

SPENCER & SPEIGHT

[2014] FamCA 436

FAMILY LAW – DE FACTO RELATIONSHIP – JURISDICTION – whether the parties are living as a de facto couple to enable a declaration to be made pursuant to s 90RD of the Family Law Act 1975 (Cth)

FAMILY LAW – DE FACTO RELATIONSHIP – POWER – whether in the context of a relationship of less than two years the applicant made substantial contribution pursuant to s 90SB(c)(i) of the Act and whether a failure to make property orders would result in a serious injustice and a declaration pursuant to s 90SB(c)(ii) of the Act

FAMILY LAW – DE FACTO RELATIONSHIP – MEANING OF A SEXUAL RELATIONSHIP – a relationship does not necessarily include sexual intercourse to fall within the definition

FAMILY LAW – DE FACTO RELATIONSHIP – PROPERTY – adjustment of property in a short relationship but where there has been a substantial contribution

Family Law Act 1975 (Cth) ss 4(1), 4AA, 90SB, 90RD 90SM(4)(a),(b),(c)
Johan & White [2011] FamCA 221 Crowley & Pappas [2013] FamCA 783 In Re A Medical Practitioner [1995] 2 Qd R 154 In V and K [2005] FCWA 80
APPLICANT:	Mr Spencer

RESPONDENT:

Ms Speight

FILE NUMBER:

MLC

8481

2013

DATE DELIVERED:

23 June 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Melbourne

JUDGMENT OF:

Benjamin J

HEARING DATE:

28, 29 & 30 April 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Nehmy

SOLICITOR FOR THE APPLICANT:

Barbayannis Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Colla

SOLICITOR FOR THE RESPONDENT:

Rudstein Kron Lawyers

Orders

Pursuant to s 90RD of the Family Law Act 1975 (“the Act”) a de facto relationship existed between the parties from February 2012 until June 2013.
Pursuant to s 90SM of the Act and by way of alteration of property interests the respondent pay to the applicant the sum of seventy five thousand dollars ($75,000) within sixty (60) days from the date of this order.
All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
All extant applications (except costs as are not dealt with within these orders) are dismissed.
Any costs application be dealt with in accordance with the Family Law Rules 2004.

NOTATION

The payment required by order 1 above is in addition to the money ordered to be paid by the respondent to the applicant by way of the consent interim property order made 12 November 2013.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: MLC 8481 of 2013

Mr Spencer

Applicant

And

Ms Speight

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

Mr Spencer (“the applicant”) and Ms…

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 SPENCER & SPEIGHT

Details

AGLC: SPENCER & SPEIGHT [2014] FamCA 436
Case: [2014] FamCA 436
Decision Date: 23 June 2014

CaseChat Overview and Summary

In *Spencer & Speight*, Benjamin J of the Federal Circuit and Family Court of Australia determined a dispute concerning the alteration of property interests arising from a de facto relationship. The applicant sought orders for property settlement, while the respondent contested the existence and duration of the de facto relationship and the quantum of any proposed property adjustment.

The central legal issues before the court were whether a de facto relationship existed between the parties and, if so, for what period. Consequently, the court was required to determine whether it had jurisdiction to make orders for the alteration of property interests under the *Family Law Act 1975* and, if so, to what extent such an alteration was just and equitable.

Benjamin J found that a de facto relationship existed between the parties from February 2012 until June 2013, pursuant to s 90RD of the *Family Law Act 1975*. Applying s 90SM of the Act, his Honour ordered the respondent to pay the applicant the sum of $75,000 by way of alteration of property interests. This payment was to be in addition to monies previously ordered under a consent interim property order made on 12 November 2013. All other extant applications were dismissed, with costs to be dealt with in accordance with the *Family Law Rules 2004*.

Orders

Orders of the court

Pursuant to s 90RD of the Family Law Act 1975 (“the Act”) a de facto relationship existed between the parties from February 2012 until June 2013.

Pursuant to s 90SM of the Act and by way of alteration of property interests the respondent pay to the applicant the sum of seventy five thousand dollars ($75,000) within sixty (60) days from the date of this order.

All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

All extant applications (except costs as are not dealt with within these orders) are dismissed.

Any costs application be dealt with in accordance with the Family Law Rules 2004.

NOTATION

The payment required by order 1 above is in addition to the money ordered to be paid by the respondent to the applicant by way of the consent interim property order made 12 November 2013.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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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