Webb & Douglas

[2012] FMCAfam 1049

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WEBB & DOUGLAS [2012] FMCAfam 1049

FAMILY LAW – Same sex relationship in New South Wales and South Africa – conceded that parties not ordinarily resident during at least a third of their relationship – whether the applicant made a substantial contribution – meaning of term – whether determined by reference to the present relationship or to other relationships – substantial relationship established.

Family Law Act 1975, ss.90RA, 90SK, 90SM, 205XB.
Family Provision Act 1982 (NSW)

Aslan & Al Nayad [2012] NSWSC 57
Miller & Trent [2011] FMCAfam 324
V & K [2005] FCWA 80
Wall & Mitchell [2012] FamCA 114
Wentworth & Wentworth (1995) 37 NSWLR 703

Applicant: MR WEBB

Respondent: MR DOUGLAS

File Number: SYC 1144 of 2012

Judgment of: Altobelli FM

Hearing date: 5 September 2012

Date of Last Submission: 5 September 2012

Delivered at: Sydney

Delivered on: 9 October 2012

REPRESENTATION

Counsel for the Applicant: David Dura

Solicitors for the Applicant: Clamenz Corporate Lawyers

Counsel for the Respondent: David Blackah

Solicitors for the Respondent: Swaab Attorneys

ORDERS

1. The respondent’s application for summary dismissal is dismissed.

2. Declaration that for the purposes of s.90SK(1)(ii) the applicant made substantial contributions in relation to the de facto relationship between the applicant and respondent of a kind mentioned in s.90SM(4)(a), (b) or (c).

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 1144 of 2012

MR WEBB

Applicant

And

MR DOUGLAS

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is 53 years old and lives in [N], Queensland. Queensland is a participating jurisdiction for the purposes of s.90RA Family Law Act.

2. The respondent is 52 years old and lives in [A], a suburb of Johannesburg South Africa. The respondent does not live in a participating jurisdiction for s.90RA purposes.

3. It is common ground that the parties lived in a de facto relationship for a period of time and in circumstances that gives to this court jurisdiction under Part VIIIAB Family Law Act, with the exception of one issue only. That issue is the geographical requirement prescribed by s.90SK.

4. Section 90SK(1) states:

   A court may make a declaration under section 90SL, or an order under section 90SM, in relation to a de facto relationship only if the court is satisfied:

   (a)  that either or both of parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the application for the declaration or order was made (the application time ); and

   (b)  that either:

   (i)  both parties to the de facto relationship were ordinarily resident during at least a third of the de facto relationship; or

   (ii)  the applicant for the declaration or order made substantial contributions in relation to the de facto relationship, of a kind mentioned in paragraph 90SM(4)(a), (b) or (c);

   in one or more States or Territories that are participating jurisdictions at the application time;