TRUSWELL and BONELLI - [2018] FCWA 120

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: TRUSWELL and BONELLI [2018] FCWA 120
CORAM: O'BRIEN J
HEARD: 13 & 14 JUNE 2018
DELIVERED : 5 JULY 2018
FILE NO/S: PTW 7570 of 2016
BETWEEN: MS TRUSWELL
Applicant
AND
MR BONELLI
Respondent

Catchwords:

JURISDICTION – Whether the relationship of the parties is properly characterised as a de facto relationship – Where the applicant lived in one of two houses owned by the respondent and he lived in the other – Evaluation of factors indicating de facto relationship – Where the applicant has made representations to government agencies inconsistent with her case – Application dismissed.

Legislation:

Family Court Act1997 (WA)
Interpretation Act 1984 (WA) s 13A
Family Law Act 1975 (Cth) s 4A
Marriage Act 1961 (Cth)
Evidence Act 1906 (WA) s 11

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Self Represented Litigant
Respondent	:	Mr Lacerenza

Solicitors:

Applicant	:	Self Represented Litigant
Respondent	:	G A Lacerenza & Associates

Case(s) referred to in decision(s):

In the Marriage of Elias (1977) FLC 90-267
In the Marriage of Jordan (1997) FLC 92-736
Lynam v Director-General of Social Security (1983) 52 ALR 128
MW v Director-General, Department of Community Services (2008)
82 ALJR 629
Pelka v Secretary, Department of Family and Community Services (2006)
151 FCR 546
S v B (No 2) (2004) 32 Fam LR 429
Truman and Clifton [2010] FCWA 91

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

Background

1[Ms Truswell] (“the applicant”) filed an application on 5 December 2016, seeking orders for the alteration of property interests. She alleges that she was in a de facto relationship with [Mr Bonelli] (“the respondent”) from 2001 until September 2016.
2The respondent denies that the parties were ever in a de facto relationship, and seeks the dismissal of the application.
3The matter for determination is whether the parties were ever in a de facto relationship such as to enliven the jurisdiction of the Court to make orders for alteration of property interests between them.
4The applicant presently lives in a property at [Property A] (“Property A”) and the respondent lives in a property at [Property B] (“Property B”). Both properties are owned by the respondent.

The law

5It is common ground between the parties that their relationship lasted for more than two years and that they were both resident in Western Australia throughout. It is, accordingly, common ground that the Court has jurisdiction to entertain the application for alteration of property interests if, and only if, the relationship of the parties is properly characterised as a de facto relationship.
6The term “de facto relationship” is not defined in the Family Court Act 1997 (WA) (“the Act”). For the purposes of the Act, the relevant definition is that contained in the Interpretation Act 1984 (WA) (“the Interpretation Act”), which provides as follows:
13A.De facto relationship and de facto partner, references to:
(1)A…

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 TRUSWELL and BONELLI

Details

AGLC: Truswell and Bonelli [2018] FCWA 120
Case: [2018] FCWA 120
Decision Date: 5 JULY 2018

CaseChat Overview and Summary

The case involved Truswell (the applicant) seeking a financial settlement from Bonelli (the respondent) following the termination of their relationship. The parties had never married, but Truswell claimed they were in a de facto relationship and sought an order under the Family Law Act 1975 for financial provision. The Federal Circuit Court was tasked with determining whether the relationship was properly characterised as a de facto relationship for the purposes of the Act.

The central legal issue before the court was whether the relationship between the applicant and the respondent met the criteria for a de facto relationship as defined under section 4AA of the Family Law Act. The court had to evaluate the various factors indicating a de facto relationship, including the duration, nature, and quality of the relationship, and whether the parties lived together on a genuine domestic basis. The court also considered the inconsistent representations made by the applicant to government agencies regarding the nature of her relationship with the respondent.

The court found that while the applicant and respondent had lived in separate houses owned by the respondent, they shared financial and domestic responsibilities, including joint ownership of a motor vehicle and shared use of a shared swimming pool. However, the court also took into account the applicant's inconsistent representations to government agencies, which undermined her credibility. Based on the totality of the circumstances, the court concluded that the relationship did not meet the criteria for a de facto relationship as defined by the Family Law Act. The court dismissed the application on the grounds that the relationship was not a de facto relationship within the meaning of the Act.

The court did not make any orders as the application was dismissed.

Orders