Stahl & Acker - [2023] FedCFamC2F 801

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Stahl & Acker [2023] FedCFamC2F 801

File number(s): ADC 5736 of 2021

Judgment of: JUDGE McGINN

Date of judgment: 4 July 2023

Catchwords: FAMILY LAW –de facto relationship – whether resumption after separation – no resumption or continuation – leave sought to extend time within which to issue proceedings for property settlement – arguable case – explanations for delay – leave granted – costs of “failed” mediation – no costs order made regarding mediation

Legislation:
Family Law Act 1975 (Cth)

Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021

Cases cited:
Althaus and Althaus (1982) FLC 91-233 at 77,269; [1979] FamCA 47

Edmunds & Edmunds (2018) FLC 93–847; [2018] FamCAFC 121

FairBairn v Radecki [2022] HCA 18

Gadzen & Simkin (2018) FLC 93-871; [2018] FamCAFC 218

Herford & Berke (No 2) [2019] FamCAFC 182; (2019) FLC 182

Moby & Schulter (2010) FLC ¶93-447; [2010] FamCA 748

Parke & The Estate of the Late A Parke [2016] FamCAFC 248

Pavey & Pavey [1976] FamCA 36; (1976) FLC 90-051

Sinclair & Whittaker [2013] FamCAFC 129 ;(2013) FLC ¶93-551

Division: Division 2 Family Law

Number of paragraphs: 180

Date of last submission/s: 10 August 2022

Date of hearing: 9-10 August 2022

Place: Adelaide

Counsel for the Applicant: Ms Lewis

Solicitor for the Applicant: Resolve Divorce Lawyers

Counsel for the Respondent: Mr Roberts

Solicitor for the Respondent: Thomson And Associates
ORDERS

ADC 5736 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS STAHL

Applicant

AND:
MR ACKER

Respondent

order made by:

JUDGE McGINN

DATE OF ORDER:

4 July 2023

IT IS ORDERED:
1.That pursuant to section 90RD of the Family Law Act 1975(Cth) (“the Act”) it is declared that a de facto relationship existed between the applicant and the respondent for the period June 1999 to 20 August 2017.
2.That pursuant to section 44(6)(a) of the Act leave be granted to the applicant nunc pro tunc to issue proceedings seeking orders pursuant to s 90SM of the Act on or before 25 November 2021.
3.That paragraphs 1, 2 and 7 of the applicant’s Further Amended Initiating Application sealed 12 July 2022 do stand dismissed.
4.That the applicant’s alternative application for costs sought at [59] of her written submissions sealed 12 December 2022 be dismissed.

Directions as to Costs
5.That in relation to the parties’ respective applications for costs in respect of applications for orders pursuant to sections 90RD and 44 of the Act:
(a)the parties’ competing applications for costs be determined on the papers;
(b)within 21 days the applicant file and serve any written submission in relation to her application for costs (not exceeding 3 pages) and a schedule setting out the calculation of any claimed costs;
(c)within 35 days the respondent file and serve any written submission by way of response to the applicant’s submission for costs and/or any application for costs sought on his behalf (not exceeding 5 pages) in addition…

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 Stahl & Acker

Details

AGLC: Stahl & Acker [2023] FedCFamC2F 801
Case: [2023] FedCFamC2F 801
Decision Date

CaseChat Overview and Summary

The case before the court involves a dispute between Stahl and Acker over whether their de facto relationship resumed after separation, and if leave should be granted for Stahl to bring proceedings for property settlement outside the standard application period. Stahl claimed that the de facto relationship resumed in 2018 and lasted until October 2019, while Acker denied that the relationship resumed after their separation in August 2017. The court found that the de facto relationship did not resume after August 2017, and that Stahl had demonstrated an arguable case for property settlement, as well as an adequate explanation for the delay in bringing the proceedings. Therefore, leave was granted for Stahl to institute proceedings for property settlement. Regarding the costs of the failed mediation, the court found that Acker's conduct did not warrant an order for costs in relation to the mediation.

The key issues before the court were whether the de facto relationship resumed after the parties' separation in August 2017, and if leave should be granted for Stahl to bring property settlement proceedings outside the standard application period. The court considered various factors, such as the parties' cohabitation, sexual relationship, financial dependence, and public acknowledgement of their relationship, and found that there was no resumption of the de facto relationship. The court also found that Stahl had demonstrated an arguable case for property settlement and provided an adequate explanation for the delay in bringing the proceedings. As for the costs of the failed mediation, the court held that Acker's conduct did not warrant an order for costs in relation to the mediation.

Orders