Vine and Carey

[2009] FMCAfam 1017

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VINE & CAREY [2009] FMCAfam 1017

FAMILY LAW – Financial matter – de facto relationship – jurisdiction of the Court to determine the application – whether the de facto relationship had broken down prior to 1 March 2009 – application for interim maintenance.

Family Law Act 1975, Part VIIIAB
Family Law Amendments (De facto Financial Matters and Other Measures) Act 2008, Items 86 and 86A in Part 2 of Schedule 1
Property Law Act 1974 (Queensland) Part 19

S v B [2005] 1 Qld 537
Hibberson & George (1989) 12 FAMLR725 at 739-740

Applicant: MS VINE

Respondent: MR CAREY

File Number: LEC321 of 2009

Judgment of: Slack FM

Hearing date: 22 September 2009

Date of Last Submission: 22 September 2009

Delivered at: Brisbane

Delivered on: 23 October 2009

REPRESENTATION

Counsel for the Applicant: Mr Gordon

Solicitors for the Applicant: B L Crane & Associates

Counsel for the Respondent: Mr Priestley

Solicitors for the Respondent: Family Law Solutions

ORDERS

IT IS DECLARED that there was a de facto relationship between the parties and that it did not break down prior to 1 March 2009.

1. That until further order and upon the Applicant vacating the property in which she currently resides, the Respondent pay to the Applicant by way of maintenance the sum of $500 per week, such payment to commence from the date that the Applicant vacates the premises and weekly thereafter, payable in advance.

IT IS NOTED that publication of this judgment under the pseudonym Vine & Carey is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

LEC321 of 2009

MS VINE

Applicant

And

MR CAREY

Respondent

REASONS FOR JUDGMENT

1. The applicant makes an application for property adjustment orders and maintenance pursuant to Part VIIIAB of the Family Law Act 1975 (as amended) (hereafter “the Act”).

2. The respondent submits that the Court does not have jurisdiction to determine the application and that it ought to be dismissed.

3. At this point in the matter, I am asked to determine the preliminary question about whether this Court has jurisdiction to determine the matter and I will confine the reasons and fact finding to that question.  

4. If I reach a conclusion that the matter can be determined under Part VIIIAB of the Act, the applicant seeks an order for interim maintenance.

The question of jurisdiction

1. The question of the jurisdiction of the Court to determine the application arises in the following way.

2. The Court has power pursuant to Part VIIIAB of the Act to make orders:

   a)for maintenance for a party to a former de facto relationship (s.90SE);

   b)altering the property interests of parties to a de facto relationship (s.90SN).

3. However, the effect of Items 86 and 86A in Part 2 of Schedule 1 of the Family Law Amendments (De facto Financial Matters and Other Measures) Act 2008 is to extend the operation of Part VIIIAB of the Act only to:

   De facto relationships that…