Ward and Trench - [2013] FamCA 478

FAMILY COURT OF AUSTRALIA

WARD & TRENCH

[2013] FamCA 478

FAMILY LAW ─ DE FACTO RELATIONSHIP ─ Where the applicant sought a declaration in relation to property settlement proceedings that a de facto relationship existed between the applicant and the respondent ─ Whether the parties were living together on a “genuine domestic basis” ─ Where there is no doubt that the parties had a sexual relationship during the agreed period of their cohabitation and subsequent to that period ─ Where the parties combined their funds for various purposes and shared expenses ─ Where it was common ground that the parties shared household chores ─ Where it was consistent with the evidence of all witnesses that the parties represented themselves as a couple ─ Where there was a significant degree of mutual commitment to a shared life ─ Where the Court found that taken together, the evidence supported a finding that the applicant and the respondent lived together in a de facto relationship ─ Where the Court made a declaration pursuant to s 90RD of the Family Law Act1975 (Cth) that a de facto relationship existed between the parties

Family Law Act 1975 (Cth) ss 4AA, 90RD, 90SM
Family Law Amendment (De facto Financial Matters and Other Measures) Act 2008 (Cth)
De Facto Relationships Act 1984 (NSW)

Barry and Dalrymple [2010] FamCA 1271
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Johnson v Johnson (2000) 201 CLR 488
Jonah and White [2001] FamCA 221
In the Marriage of Cierpiatka (1999) 25 Fam LR 548
Nelson v Nelson (1995) 184 CLR 538
Roy v Sturgeon (1986) 11 Fam LR 271

APPLICANT:

Ms Ward

RESPONDENT:

Mr Trench

FILE NUMBER:

SYC

1426

2012

DATE DELIVERED:

21 June 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Loughnan J

HEARING DATE:

23 & 24 May 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Blackah

SOLICITOR FOR THE APPLICANT:

G & D Lawyers

RESPONDENT:

Respondent in Person

Orders

The Court declared pursuant to s 90RD of the Family Law Act1975 (Cth) that the parties lived in a de facto relationship from 15 September 2006 until 21 May 2011.
Leave is granted to either of the parties to restore the proceedings to the list for directions in relation to the substantive proceedings on giving seven (7) days written notice to the Court and each other.
The costs of the proceedings to date are reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ward & Trench 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 1426 of 2012

Ms Ward

Applicant

And

Mr Trench

Respondent

REASONS FOR JUDGMENT

Introduction

By her Application filed 13 March 2012, Ms Ward (“the applicant”) sought orders for settlement of property and damages for assault. The present hearing relates to a declaration sought in relation to the property settlement proceedings, pursuant to s 90RD…

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 Ward and Trench

Details

AGLC: Ward and Trench [2013] FamCA 478
Case: [2013] FamCA 478
Decision Date: 21 June 2013

CaseChat Overview and Summary

In *Ward and Trench*, the applicant sought a declaration that a de facto relationship existed between herself and the respondent for the purposes of property settlement proceedings. The court was required to determine whether the parties had lived together on a genuine domestic basis, as defined by the *Family Law Act 1975* (Cth).

The legal issues before the court were whether the parties met the criteria for a de facto relationship under section 4AA of the *Family Law Act 1975* (Cth). This involved assessing whether they were not legally married or related by family, and crucially, whether they had a relationship as a couple living together on a genuine domestic basis, considering all the circumstances.

Loughnan J found that the evidence supported a declaration of a de facto relationship. The court noted the existence of a sexual relationship, the pooling of funds, shared expenses, and the common ground regarding shared household chores. Furthermore, witnesses consistently testified that the parties presented themselves as a couple, indicating a significant degree of mutual commitment to a shared life. Taken together, these factors satisfied the court that the parties lived together in a de facto relationship. The court declared that a de facto relationship existed between the parties from 15 September 2006 until 21 May 2011, and reserved costs.

Orders

Orders of the court

The Court declared pursuant to s 90RD of the Family Law Act 1975 (Cth) that the parties lived in a de facto relationship from 15 September 2006 until 21 May 2011.

Leave is granted to either of the parties to restore the proceedings to the list for directions in relation to the substantive proceedings on giving seven (7) days written notice to the Court and each other.

The costs of the proceedings to date are 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

Sections 90RD, 90RE, 90RF and 90RG of the Family Law Act provide:90RD Declarations about existence of de facto relationships (1) If:(a)an application is made for an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL; 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. (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. Note:For child of a de facto relationship, see section 90RB. Here the applicant seeks orders under s 90SM which provides for the Court to make property settlement orders after the breakdown of a de facto relationship. This Court has jurisdiction in relation to financial matters relating to de facto relationships because of Part VIIIAB of the Family Law Act. That Part was inserted into the Family Law Act by the Family Law Amendment (De facto Financial Matters and Other Measures) Act 2008 (Cth) (“the amending Act”). Part VIIIAB does not apply to a de facto relationship that “broke down” before the commencement date of the relevant schedule of the amending Act, (Item 86 of Part 2 of Schedule 1 to the amending Act); that commencement date was 1 March 2009. Section 44 of the Family Law Act relevantly provides: As to what constitutes a de facto relationship for present purposes, s 4AA of the Family Law Act provides: (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 couple(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 property;(f) the degree of mutual commitment to a shared life;(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;(h) the care and support of children;(i)the reputation and public aspects of the relationship.(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.(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.(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.