STREET & HODGES - [2014] FCCA 2485

FEDERAL CIRCUIT COURT OF AUSTRALIA

STREET & HODGES

[2014] FCCA 2485

Catchwords:
FAMILY LAW – De facto property – whether the parties’ relationship was a de facto relationship at law from February 2003 or a date in 2005 – just and equitable settlement.

Legislation:

Family Law Act 1975, ss.4AA(1), 79, 90SF and 90SM

Jonah & White (2012) FLC 93-522
Sinclair & Whittaker (2013) FamCAFC 129
Cadman & Hallett [2014] FamCAFC 142
Lynam & Director-General of Social Security (1983) 52 ALR 128
Moby & Schulter [2010] FamCA 748
Stanford & Stanford (2012) FLC 93-495
Bevan & Bevan [2013] FAMCAFC 116

Applicant:

MR STREET

Respondent:

MS HODGES

File Number:

DGC 990 of 2013

Judgment of:

Judge Small

Hearing date:

14 July 2014

Date of Last Submission:

31 July 2014

Delivered at:

Dandenong

Delivered on:

31 October 2014

REPRESENTATION

Counsel for the Applicant:

Mr Gates

Solicitors for the Applicant:

Hardys

Counsel for the Respondent:

Mr Williams

Solicitors for the Respondent:

McDonald Slater & Lay

DECLARATION

Pursuant to section 90RD of the Family Law Act 1975 (Cth) the Court declares that the parties were in a de facto relationship between April 2005 and September 2012.

INTERIM ORDERS

The property situate at and known as Property W in the State of Victoria but more precisely identified in Certificate of Title Volume (omitted) Folio (omitted) (“the real property”) shall be placed on the market for sale within 45 days of the date of these Orders (“the sale”).
Should the parties be unable to agree on a real estate agent to conduct the sale within 14 days then they shall approach the President of the Real Estate Institute of Victoria and request him or her to appoint a real estate agent for that purpose.
Should the parties be unable to agree upon the terms of sale for the real property then the appointed real estate agent shall determine the terms of sale.
At the settlement of the sale, the proceeds of sale shall be applied as follows:
(a)First to pay all costs and commissions of the sale;
(b)Second to discharge any encumbrance affecting the real property, including any mortgage;
(c)Third to pay the following liabilities of the parties:
(i)The (omitted) Bank loan in the Applicant’s name up to the sum of $16,510;
(ii)The Respondent’s Centrelink debt up to the sum of $9,387; and
(iii)The Applicant’s tax liability up to the sum of $18,040.
(d)Fourth to pay any outstanding outgoings of the real property including rates and utilities;
(e)Fifth the balance to be divided as to 45% less $14,300 to the Applicant and 55% plus $14,300 to the Respondent.
The Applicant shall retain for his own use and benefit exclusive of the Respondent the items set out in Schedules A and C attached to these Orders, and the (omitted) Land Cruiser motor vehicle in his possession (“the Land Cruiser”).
The Respondent shall retain for her own use and benefit exclusive of the Applicant the items set out in Schedules B and D attached to these Orders.
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 STREET & HODGES

Details

AGLC: STREET & HODGES [2014] FCCA 2485
Case: [2014] FCCA 2485
Decision Date: 31 October 2014

CaseChat Overview and Summary

In the matter of *Street & Hodges*, Small J of the Federal Circuit Court of Australia considered a dispute between former de facto partners concerning the commencement date of their relationship. The applicant, Mr Street, contended that the de facto relationship began in November 2005, while the respondent, Ms Hodges, argued it commenced in February 2003. The core of the dispute revolved around whether the parties were living together on a genuine domestic basis from February 2003 or only from November 2005.

The court was required to determine the precise date upon which the parties' relationship transitioned from being merely sexually intimate and involving occasional overnight stays to one characterised by cohabitation and a shared domestic life. This determination was crucial for establishing the duration of the de facto relationship, which in turn impacted the division of property and other entitlements. The applicant's evidence suggested that while the parties were exclusive from February 2003, they lived separately and only decided to live together full-time after a brief relationship breakdown in late 2005.

Small J's reasoning focused on the nature and extent of the parties' common residence and their sharing of resources. The applicant testified that between 2003 and 2005, overnight stays occurred only a few times per week, and the parties lived approximately 50 kilometres apart. He asserted that the decision to live together occurred after a three-month break in late 2005, and that the respondent's sale of her property indicated she was living there until that time. The applicant also denied that the respondent had assisted in building a fence at his property in early 2003, suggesting it was not to accommodate her horses, and he was unaware of her financial situation at that earlier date, inferring a lack of shared financial resources. The court considered these factors in assessing whether the parties had established a de facto relationship in February 2003 or later in 2005.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

There is no dispute that there was a de facto relationship between these parties. The issue here is very discrete: did these parties begin to live together such that their relationship can be characterised as a de facto relationship in February 2003 or in 2005?The Evidence(a)The duration of the relationship The parties were in a relationship from late December 2002 to the date of separation in September 2012, a period of almost ten years, a significant duration on anyone’s terms. (b)The nature and extent of their common residence The Applicant’s evidence can be summarised as follows:· The parties were only “boyfriend and girlfriend” who had a sexually intimate relationship from February 2003 until they decided to live together in November 2005. · Between 2003 and about November 2005 the Respondent spent overnights at the Applicant’s home, and he at hers, on perhaps two or three nights per week at times, but that they lived separately and “far apart” (about 50 kilometres) between those dates. · It was only after a short breakdown in the relationship between about August and November 2005 that the parties decided to live together full-time and to start a family, and in his view that is when the de facto relationship began.· It was only after the parties decided to live together that the respondent decided to sell her property in (omitted), indicating, he says, that she was living there until then. When cross-examined at trial, Mr Street conceded that the relationship was exclusive from February 2003, but was adamant that he did not consider the relationship to have taken on a “genuine domestic basis” character until after the parties moved into the Property W property on completion of the house in late 2005. He said: We did not live in the shed together as a de facto couple. She refused to. She said the only way we would live together is that we would move into the house, and that was after the three-month break when we had discussions with each other. He further specifically denied that Ms Hodges and he had spent “at least three to four nights a week through 2003, 2004 and up to April 2005” together. He conceded that the Respondent had bought food and supplies while staying at his home between February 2003 and November 2005 but said: “If I was at her place I would spend money. If she was at my place she would spend money…. We were boyfriend and girlfriend and that’s what you do.” Under cross-examination in relation to the Respondent’s superannuation entitlements at what she says was the date of cohabitation, the Applicant made clear that he did not know what the Respondent had done with a redundancy payment she received in early 2003 and that he was unaware of the details of her financial situation at that time. The inference taken was that the parties did not share financial resources at that time. His evidence was that the Respondent’s horses were kept at (omitted) in early 2003 and that while a fence was built around the house being constructed on the Property W property, he could not remember when it had been built. He denied that it was built to accommodate the Respondent’s horses. He could not remember exactly when the horses were brought to live at the property but said that the fence was built so that he could “get some cows as well”. He could neither agree nor disagree that it was in March or April 2003, but he specifically denied that Ms Hodges had helped him to construct the fence, saying his friend Mr T and he had built it.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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