VOLEN & BACKSTROM - [2013] FamCA 40

FAMILY COURT OF AUSTRALIA

VOLEN & BACKSTROM

[2013] FamCA 40

FAMILY LAW – PROPERTY – DE FACTO RELATIONSHIP – Dates of commencement and ending of de facto relationship – Declaration made that de facto relationship existed between the parties between December 2005 and 22 April 2010

Family Law Act 1975 (Cth) ss 4AA, 90RF, 90RD(1) and (2), 90SB, 90SM
Evidence Act 1995 (Cth) s 140

Clisbey & Viges [2011] FamCA 611
Dubois & Inwood [2011] FMCAfam 1337
Hibberson v George 12 FamLR 725
Jonah & White (2011) FamCA 221
Moby & Schulter (2010) FLC 93-447
Ricci & Jones [2011] FamCAFC 222
Vaughan & Bele [2011] FamCA 436

APPLICANT:

Ms Volen

RESPONDENT:

Ms Backstrom

FILE NUMBER:

BRC

11985

2010

DATE DELIVERED:

31 January 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

O'Reilly J

HEARING DATE:

24 and 25 September 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Shoebridge

SOLICITOR FOR THE APPLICANT:

Hall Payne Lawyers

COUNSEL FOR THE RESPONDENT:

Dr Sayers

SOLICITOR FOR THE RESPONDENT:

Harrington Family Lawyers

Declaration and order

IT IS DECLARED

A de facto relationship within the meaning of s 4AA of the Family Law Act 1975 (Cth) existed between Ms Volen and Ms Backstrom between December 2005 and 22 April 2010.
IT IS ORDERED
The costs of both parties are reserved to the trial judge in the primary proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Volen & Backstrom 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 BRISBANE

FILE NUMBER: (P)BRC 11985 of 2010

Ms Volen

Applicant

And

Ms Backstrom

Respondent

REASONS FOR JUDGMENT

Overview

It is common ground that Ms Volen (the applicant) and Ms Backstrom (the respondent) were in a de facto relationship between Easter 2006 and November 2007.
The applicant contends, and the respondent denies, that the de facto relationship commenced in December 2005 and ended in April 2010.
Unless I am satisfied that the parties’ de facto relationship continued to exist as at 1 March 2009, the Court has no jurisdiction to entertain the applicant’s claim for a s 90SM property order.
The applicant claims that the de facto relationship existed for at least 2 years: s 90SB(a); or in the alternative she made substantial contributions of a kind mentioned in s 90SM(4)(a)(b) or (c) and a failure to make a s 90SM order would result in serious injustice to her: s 90SB(c)(i) and (ii).
In what will be seen, it is not necessary that I determine the applicant’s alternative claim in order to enliven jurisdiction.
The making of a declaration that a de facto relationship existed, and the period of such, does not involve the exercise of a discretion. Rather, the determination underlying any declaration is based upon determination of fact.
The applicant bears the onus of proof in relation to the existence of the de facto relationship in the periods denied by the respondent,…

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 VOLEN & BACKSTROM

Details

AGLC: VOLEN & BACKSTROM [2013] FamCA 40
Case: [2013] FamCA 40
Decision Date

CaseChat Overview and Summary

The case of Volen & Backstrom concerned an application for declarations regarding the existence and duration of a de facto relationship. The primary proceedings involved an application for orders under sections 90SE, 90SG, or 90SM of the *Family Law Act 1975* (Cth), or a declaration under section 90SL. A claim was made that a de facto relationship existed between the applicant and another person.

The court was required to determine whether a de facto relationship existed between the parties for the purposes of the *Family Law Act 1975*. This involved considering the criteria set out in section 4AA of the Act, which defines a de facto relationship as one where persons are not legally married, not related by family, and have a relationship as a couple living together on a genuine domestic basis, having regard to all the circumstances. The court also needed to consider the threshold requirements for making orders or declarations under section 90SB, specifically whether the relationship lasted at least two years, or if there was a child of the relationship, or if substantial contributions were made and a failure to make an order would result in serious injustice, or if the relationship was registered.

In its reasoning, the court applied the principles established in section 4AA of the *Family Law Act 1975*. It noted that the determination of whether a de facto relationship exists is a question of fact, to be assessed by considering all the circumstances of the relationship, including but not limited to the duration, common residence, sexual relationship, financial dependence or interdependence, property acquisition, mutual commitment, registration of the relationship, care of children, and public reputation. The court emphasised that no single factor is determinative, and the weight given to each circumstance is a matter for the court's discretion. The court also had regard to section 90RD, which empowers the court to declare the existence or non-existence of a de facto relationship for the purposes of the primary proceedings.

Orders

Orders of the court

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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

Section 90RD provides:SECTION 90RD DECLARATIONS ABOUT EXISTENCE OF DE FACTO RELATIONSHIPS90RD(1) If:(a)an application is for an order under section , or , or a declaration under section ; and(b)a claim is made, in support of the application, that a de facto relationship existed between the applicant and another person;the court may, for the purposes of those proceedings (the primary proceedings), declare that a de facto relationship existed, or never existed, between those 2 persons.90RD(2) A declaration under subsection (1) of the existence of a de facto relationship may also declare any or all of the following:(a)the period, or periods, of the de facto relationship for the purposes of paragraph 90SB(a);(b)whether there is a child of the de facto relationship;(c)whether one of the parties to the de facto relationship made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c);(d)when the de facto relationship ended;(e)where each of the parties to the de facto relationship was ordinarily resident during the de facto relationship. Section 90SB provides:SECTION 90SB WHEN THIS DIVISION APPLIES — LENGTH OF RELATIONSHIP ETC.90SB A court may make an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL, in relation to a de facto relationship only if the court is satisfied:(a)that the period, or the total of the periods, of the de facto relationship is at least 2 years; or(b)that there is a child of the de facto relationship; or(c)that:(i)the party to the de facto relationship who applies for the order or declaration made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c); and(ii)a failure to make the order or declaration would result in serious injustice to the applicant; or(d)that the relationship is or was registered under a prescribed law of a State or Territory. Section 4AA provides:SECTION 4AA DE FACTO RELATIONSHIPS Meaning of de facto relationship4AA(1) A person is in a de facto relationship with another person if:(a)the persons are not legally married to each other; and(b)the persons are not related by family (see subsection (6)); and(c)having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.Paragraph (c) has effect subject to subsection (5).Working out if persons have a relationship as a couple4AA(2) Those circumstances may include any or all of the following:(a)the duration of the relationship;(b)the nature and extent of their common residence;(c)whether a sexual relationship exists;(d)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;(e)the ownership, use and acquisition of their ;(f)the degree of mutual commitment to a shared life;(g)whether the relationship is or was registered under a prescribed law of a or Territory as a prescribed kind of relationship;(h)the care and support of children;(i)the reputation and public aspects of the relationship.4AA(3) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.4AA(4) A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.4AA(5) For the purposes of this Act:(a)a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and(b)a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.When 2 persons are related by family4AA(6) … [not presently relevant]