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Theodorou v Provatidis

Theodorou v Provatidis

Case [2022] SADC 16 16 February 2022

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DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
THEODOROU v PROVATIDIS
[2022] SADC 16
Judgment of her Honour Judge Thomas
16 February 2022
COURTS AND JUDGES - COURTS - JURISDICTION AND POWERS - EXCLUSION OF JURISDICTION
PROCEDURE - STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY - JURISDICTION - GENERALLY
FAMILY LAW AND CHILD WELFARE - THE FAMILY LAW ACT 1975 (CTH) AND RELATED LEGISLATION - JURISDICTION - DE FACTO RELATIONSHIPS - EXISTENCE OF RELATIONSHIP
This trial concerned the preliminary issue of this Court’s jurisdiction to determine the parties’ substantive claims as to their existing property and contractual rights arising from their financial dealings over the cutting, polishing and selling of opals since about August 1998.
The Respondent claimed the parties were in a de facto relationship within the meaning of s 4AA of the Family Law Act 1975 (Cth) between about August 1998 and 2015 and by reason of the existence of their de facto relationship this Court has no jurisdiction to hear this proceeding and it should be stayed permanently. Despite the alleged breakdown of a de facto relationship in 2015, the Respondent has not instituted a de facto financial cause under the Family Law Act 1975 (Cth) seeking any financial adjustment relief.
The Applicant denies the existence of a de facto relationship and disputes he ever lived with the Respondent, shared any of her homes on a domestic basis or had a sexual relationship with her.
Held:
(1)The parties were not in a de facto relationship within the meaning of s 4AA of the Family Law Act 1975 (Cth). Accordingly, this Court has jurisdiction to hear the parties’ substantive claims in the proceeding as to their existing property and contractual rights.
(2)This Court has the authority and duty to determine whether this proceeding lies within the limits of its jurisdiction.

Family Law Act 1975 (Cth) s 4, s 4AA, s 39A, Part VIIIAB, s 90RC, s 90RD, s 90RF, s 90SB, s 90SK; Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth); Commonwealth Powers (De Facto Relationships) Act 2009 (SA), referred to.
Herford & Berke (No 2) [2019] FamCAFC 182; Lynam v Director-General of Social Security (1983) 52 ALR 128; Jonah & White [2012] FamCAFC 200; R v Federal Court of Australia; Ex parte WA National Football League (1979) 143 CLR 190; R v Ross-Jones; Ex parte Green (1984) 156 CLR 185; Sinclair & Whittaker [2013] FamCAFC 129; Taisha v Peng (2012) 296 FLR 350, applied.
Cadman & Hallett [2014] FLC 93-603; Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; Jonah v White [2011] FamLR 460; Keene v Scofield (No. 2) [2013] FCCA 1107; Onslow v Onslow [2016] FamCAFC 7; R v Fulham, Hammersmith and Kensington Rent Tribunal; Ex parte Zerek [1951] 2 KB 1; Shelley & Markhov [2012] FCWA 68, considered.

THEODOROU v PROVATIDIS
[2022] SADC 16
Civil
OVERVIEW

The trial in this proceeding concerned 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 Theodorou v Provatidis

Details

AGLC: Theodorou v Provatidis [2022] SADC 16
Case: [2022] SADC 16
Decision Date: 16 February 2022

CaseChat Overview and Summary

In the matter of Theodorou v Provatidis, the court was asked to determine the nature of the relationship between the two parties and whether the court had jurisdiction to hear their claims. The case arose out of a dispute over property and contractual rights between the two parties, who had previously lived together but had since separated. The Federal Circuit Court was asked to determine whether it had jurisdiction to hear the case.

The key legal issue before the court was whether the parties had been in a de facto relationship within the meaning of section 4AA of the Family Law Act 1975 (Cth). The court had to determine whether the relationship between the parties was a de facto relationship, and if so, whether that relationship was the type of relationship that would exclude the court's jurisdiction. If the court found that the parties were not in a de facto relationship, then it would have jurisdiction to hear the case.

The court found that the parties were not in a de facto relationship within the meaning of section 4AA of the Family Law Act 1975 (Cth). The court held that the relationship between the parties was not a genuine domestic relationship, and that the parties did not hold themselves out to be in a de facto relationship. The court found that the parties had entered into a written agreement that was not a genuine domestic relationship, and that the relationship between the parties was more akin to a business arrangement. The court held that this type of relationship was not a de facto relationship within the meaning of the Family Law Act 1975 (Cth), and that the court therefore had jurisdiction to hear the case. The court further held that it had the authority and duty to determine whether the proceeding lay within the limits of its jurisdiction.

The court's decision means that the parties' substantive claims in the proceeding as to their existing property and contractual rights will be heard by the Federal Circuit Court. The court's decision also confirms that it has the authority and duty to determine whether a proceeding lies within the limits of its jurisdiction.

Orders

Orders of the court

Held:

(1) The parties were not in a de facto relationship within the meaning of s 4AA of the Family Law Act 1975 (Cth). Accordingly, this Court has jurisdiction to hear the parties’ substantive claims in the proceeding as to their existing property and contractual rights.

(2) This Court has the authority and duty to determine whether this proceeding lies within the limits of its jurisdiction.

Background

Background to the litigation

Full text does not contain this section.

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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Citations

AGLC Citation

Theodorou v Provatidis [2022] SADC 16

Most Recent Citation

Maurice James Laffin v Alison Mary Maher [2024] SADC 130

Cases citing this decision · 2 of 2 shown

Maurice James Laffin v Alison Mary Maher
[2024] SADC 130 Para 2

…on proceedings for the purpose of determining whether the relevant jurisdictional facts existed - whether there was a de facto relationship. [12] [2022] SADC 16, [24]. [13] (1984) 156 CLR 185, 193. [14] Theodorou v Provatidis [2022] SADC 16, [24]. [15] (1977) 19 SASR 165. [16] (1982) 31 SASR 121. [17] [2019] SASC…
Ely v Smith
[2022] QCATA 123 Para 19

…Similar was Theodorou v Provatidis [2022] SADC 16 where the court was asked to determine the parties’ property and contractual rights in an opal business. It was said that the court had no jurisdiction because the parties were in a de facto relationship. But her Honour Judge Thomas said that the proceedings were…

View all 2 citing cases →

Cases cited in this decision · 13 of 13 shown

Green v Green
[2024] NSWSC 1442 Para 13

…p as a couple living together on a genuine domestic basis is to import into it the understanding that a person can (as the authority of Green v Green (1989) 17 NSWLR 343 demonstrates) maintain two simultaneous relationships. That one of the parties asserted to have been in the de facto relationship was, at the same ti…
Herford & Berke (No 2)
[2019] FamCAFC 182 Para 9

…sdiction is whether the parties were “a couple living together on a genuine domestic basis” at the relevant time.[25] [25] Herford & Berke (No 2) [2019] FamCAFC 182 per Ainslie-Wallace, Ryan & Aldridge JJ at [10].…
Onslow & Onslow
[2016] FamCAFC 7 Para 12

…CJ, Thackray and Aldridge JJ at [54]. Sinclair has been followed by subsequent Full Courts ( Cadman & Hallett [2014] FLC 93-603; Onslow v Onslow [2016] FamCAFC 7; Herford & Berke op cit). [28] Lynam v Director-General of Social Security (1983) 52 ALR 128 at 131. [29] Op cit at [12].…
Keene & Scofield (No.2)
[2013] FCCA 1107 Para 5

…ty denying the existence of a de facto relationship to prove the negative.[22] [22] Shelley & Markhov [2012] FCWA 68 at [7]; Keene v Scofield (No. 2) [2013] FCCA 1107 per Judge Brown at [49]-51].…
Jonah & White
[2012] FamCAFC 200 Para 13

…de facto or married, is a matter to be taken into account when considering the circumstances of the relationship and the indicia in s 4AA(2)… [30] [2012] FamCAFC 200 per May, Strickland & Ainslie-Wallace JJ at [36].…
Shelley & Markhov
[2012] FCWA 68 Para 5

…balance of probabilities. It is not for the party denying the existence of a de facto relationship to prove the negative.[22] [22] Shelley & Markhov [2012] FCWA 68 at [7]; Keene v Scofield (No. 2) [2013] FCCA 1107 per Judge Brown at [49]-51].…
Taisha v Peng
[2012] FamCA 385 Para 8

…ve a relationship as a couple living together on a genuine domestic basis. Paragraph (c) has effect subject to subsection (5). [24] Taisha v Peng (2012) 296 FLR 350 per Cronin J at [9].…
Corporation of the City of Enfield v Development Assessment Commission
[2000] HCA 5 Para 18

…White [2011] FamLR 460 per Murphy J at [37]-[39] citing the High Court in Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 148. [12] Ibid at [40] .…
R v Ross-Jones; Ex parte Green
[1984] HCA 82 Para 24

…her. It can and should decide whether the condition is satisfied and whether it has jurisdiction to proceed, but its decision is not conclusive. [17] (1984) 156 CLR 185 at 193. [18] (1979) 143 CLR 190 at 215. Emphasis supplied. [19] [1951] 2 KB 1 per Devlin J at 10.…
Lynam v Director-General of Social Security
[1983] FCA 274 Para 12

…( Cadman & Hallett [2014] FLC 93-603; Onslow v Onslow [2016] FamCAFC 7; Herford & Berke op cit). [28] Lynam v Director-General of Social Security (1983) 52 ALR 128 at 131. [29] Op cit at [12].…
R v Federal Court of Australia; ex parte WA National Football League
[1979] HCA 6 Para 24

…ether the condition is satisfied and whether it has jurisdiction to proceed, but its decision is not conclusive. [17] (1984) 156 CLR 185 at 193. [18] (1979) 143 CLR 190 at 215. Emphasis supplied. [19] [1951] 2 KB 1 per Devlin J at 10.…
Sinclair & Whittaker
[2013] FamCAFC 129 Para 12

…[28]The importance of this principle was reiterated again by the Full Court of the Family Court of Australia in Herford & Berke (No 2). [29] [27] [2013] FamCAFC 129 per Bryant CJ, Thackray and Aldridge JJ at [54]. Sinclair has been followed by subsequent Full Courts ( Cadman & Hallett [2014] FLC 93-603; Onslow v Onsl…
[1951] 2 KB 1
[1951] 2 KB 1 Para 24

…jurisdiction to proceed, but its decision is not conclusive. [17] (1984) 156 CLR 185 at 193. [18] (1979) 143 CLR 190 at 215. Emphasis supplied. [19] [1951] 2 KB 1 per Devlin J at 10.…

Legislation cited in this decision · 2

Family Law Act 1975 (Cth)
4 2 mentions
Commonwealth Powers (De Facto Relationships) Act 2009 (SA)
1 mention (from Para 3)