Ting & Fingal - [2013] FamCA 29

FAMILY COURT OF AUSTRALIA

TING & FINGAL

[2013] FamCA 29

FAMILY LAW – JURISPRUDENCE - De facto relationship alleged but issue disputed - No jurisdiction to make interim orders where there is no evidence of the existence of a de facto relationship

Family Law Act 1975 (Cth)
Transfer of Land Act 1958 (Vic)

Briginshaw and Briginshaw (1938) 60 CLR 336
Moby v Schulter [2009] FamCA 1285
Re Ross-Jones; ex parte Green (1984) 156 CLR 185
Wise and Mathews [2010] FamCA 1194

APPLICANT:

Ms Ting

RESPONDENT:

Mr Fingal

FILE NUMBER:

MLC

130

2013

DATE DELIVERED:

1 February 2013

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

24 January 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Robinson

SOLICITOR FOR THE APPLICANT:

Adrian Abrahams Family Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Ben-Simon

SOLICITOR FOR THE RESPONDENT:

Joan Scapetis

Orders

Save as to the orders that follow, that the application for interim orders contained in the initiating application filed 8 January 2013 and the response thereto filed 24 January 2013 are both dismissed.
That the application for a declaration under s 90RD of the Family Law Act 1975 (Cth) is fixed for hearing and determination as a two day case at 10.00am on 15 April 2013 as a two day hearing.
That the applicant file and serve any affidavit material that she intends to rely on by 4.00pm on 20 March 2013.
That the respondent file and serve any affidavit material upon which he intends to rely by 4.00pm on 4 April 2013.
That the respondent file and serve a financial statement complying with the Family Law Rules 2004 by no later than 4.00pm on 4 April 2013.
That each party comply with Chapter 13 of the Family Law Rules relating to the issue of disclosure.

IT IS CERTIFIED:

That pursuant to Order 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 Ting & Fingal 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 MELBOURNE

FILE NUMBER: MLC 130 of 2013

Ms Ting

Applicant

And

Mr Fingal

Respondent

REASONS FOR JUDGMENT

Ms Ting (“the applicant”) filed an application on 8 January 2013 seeking orders for an adjustment in her favour of the property owned by Mr Fingal (“the respondent”) along with spousal maintenance payments. She alleged that she and the respondent were in a de facto relationship from 8 September 2004 until October 2012 when the relationship came to an end.
By his response filed 24 January 2013, the respondent sought a dismissal of the applicant’s application and consequential orders for the applicant to remove caveats on his properties.
This application is brought under Part VIIIAB of the Family Law Act 1975 (Cth) (“the Act”).
For the Court to have the power to make the orders sought by the applicant, it must have 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 Ting & Fingal

Details

AGLC: TING & FINGAL [2013] FamCA 29
Case: [2013] FamCA 29
Decision Date: 1 February 2013

CaseChat Overview and Summary

In the matter of *Ting & Fingal*, heard before Cronin J, the parties sought interim orders concerning their financial relationship. The applicant filed an initiating application on 8 January 2013, and the respondent filed a response on 24 January 2013.

The primary legal issue before the court was the determination of the application for interim orders. Additionally, the court was required to consider an application for a declaration under section 90RD of the *Family Law Act 1975* (Cth).

Cronin J dismissed the applications for interim orders. However, the application for a declaration under section 90RD was fixed for a two-day hearing commencing on 15 April 2013. Directions were made regarding the filing and service of affidavit material by both parties, with the applicant to file by 20 March 2013 and the respondent by 4 April 2013. The respondent was also directed to file a financial statement by 4 April 2013, and both parties were ordered to comply with Chapter 13 of the *Family Law Rules 2004* concerning disclosure. The court certified that it was reasonable to engage counsel to attend the proceedings.

Orders

Orders of the court

Save as to the orders that follow, that the application for interim orders contained in the initiating application filed 8 January 2013 and the response thereto filed 24 January 2013 are both dismissed.

That the application for a declaration under s 90RD of the Family Law Act 1975 (Cth) is fixed for hearing and determination as a two day case at 10.00am on 15 April 2013 as a two day hearing.

That the applicant file and serve any affidavit material that she intends to rely on by 4.00pm on 20 March 2013.

That the respondent file and serve any affidavit material upon which he intends to rely by 4.00pm on 4 April 2013.

That the respondent file and serve a financial statement complying with the Family Law Rules 2004 by no later than 4.00pm on 4 April 2013.

That each party comply with Chapter 13 of the Family Law Rules relating to the issue of disclosure.

IT IS CERTIFIED:

That pursuant to Order 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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