Wall & Mitchell - [2012] FamCA 114

FAMILY COURT OF AUSTRALIA

WALL & MITCHELL

[2012] FamCA 114

FAMILY LAW - JURISDICTION – De Facto – Whether or not the relationship between the parties was a de facto relationship within the meaning of the legislation – Whether the relationship existed for the required two year period – Whether the applicant made substantial contributions within the meaning of the legislation – Where the applicant has failed to establish the matters required by the legislation – Declaration that a de facto relationship never existed – Application dismissed.

Family Law Act 1975 (Cth) – Part VIIIAB, s 4(1), s 4AA, s 90RD, s 90RD(1), s 90SB, s 90SB(a), s 90SB(c), s 90SM(4), s 90SM(4)(a), s 90SM(4)(b), s 90SM(4)(c),

Family Law Rules 2004 (Cth) – r 10.13
Evidence Act 1995 (Cth) – s 140(1)

Miller and Trent [2011] FMCAfam 324
V and K [2005] FCWA 80

APPLICANT:

Ms Wall

RESPONDENT:

Mr Mitchell

FILE NUMBER:

SYC

3705

2010

DATE DELIVERED:

21 February 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Johnston J

HEARING DATE:

25, 26, 27 & 28 July 2011

REPRESENTATION

FOR THE APPLICANT:

Ms Wall in person

COUNSEL FOR THE RESPONDENT:

Mr Richardson, SC

SOLICITOR FOR THE RESPONDENT:

York Family Law

Orders

That pursuant to s 90RD(1) of the Family Law Act 1975 it is declared that a de facto relationship never existed between Mr Mitchell and Ms Wall which would attract the application of Part VIIIAB of the Act.
That the Initiating Application filed by Ms Wall on 11 June 2010 as amended be dismissed.
That all costs be reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wall & Mitchell 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 SYDNEY

FILE NUMBER: SYC 3705 of 2010

Ms Wall

Applicant

And

Mr Mitchell

Respondent

REASONS FOR JUDGMENT

The issue in these proceedings is whether this Court has jurisdiction to make orders for maintenance and property settlement in the circumstances of the relationship of the parties.
The applicant is Ms Wall, 34 years of age. The respondent is Mr Mitchell, 52 years of age.
The applicant asserts that the parties had a de facto relationship which would attract the application of the relevant financial provisions of the Family Law Act 1975 (Cth) (“the Act”). The respondent denies that the parties have ever been in a de facto relationship.
On 11 June 2010 the applicant filed an application seeking orders pursuant to the provisions of Part VIIIAB of the Act. This Part deals with financial matters relating to de facto relationships. The applicant seeks orders to the effect that the respondent pay to her an amount equivalent to the value of 30 percent of his property as well as periodic maintenance of $2070 per week.
The applicant had also sought an order to the effect that the respondent pay into her former solicitor’s trust account the sum of $150 000…

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 Wall & Mitchell

Details

AGLC: Wall & Mitchell [2012] FamCA 114
Case: [2012] FamCA 114
Decision Date: 21 February 2012

CaseChat Overview and Summary

In *Wall & Mitchell*, heard before Johnston J, the primary dispute concerned whether a de facto relationship existed between the parties, Mr Mitchell and Ms Wall, for the purposes of the *Family Law Act 1975* (Cth). Ms Wall had filed an initiating application seeking property settlement orders, which Mr Mitchell contested on the grounds that no de facto relationship, as defined by the Act, had ever existed between them.

The central legal issue before the court was to determine whether the relationship between Mr Mitchell and Ms Wall met the criteria for a de facto relationship under Part VIIIAB of the *Family Law Act 1975*. This determination was crucial as it would dictate whether the court had jurisdiction to make property settlement orders under that Part of the Act.

Johnston J found that a de facto relationship, as contemplated by the *Family Law Act 1975*, had never existed between Mr Mitchell and Ms Wall. Consequently, the court declared that Part VIIIAB of the Act was not attracted to their relationship.

As a result of this finding, the court ordered that Ms Wall's initiating application be dismissed. All costs were reserved.

Orders

Orders of the court

That pursuant to s 90RD(1) of the Family Law Act 1975 it is declared that a de facto relationship never existed between Mr Mitchell and Ms Wall which would attract the application of Part VIIIAB of the Act.

That the Initiating Application filed by Ms Wall on 11 June 2010 as amended be dismissed.

That all costs be reserved.

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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