Weldon and Levitt - [2017] FCCA 3072

FEDERAL CIRCUIT COURT OF AUSTRALIA

WELDON & LEVITT

[2017] FCCA 3072

Catchwords:
FAMILY LAW – Property – whether the parties were in a de facto relationship – the parties had an intermittent sexual relationship for 13 years – the parties had two children together – the parties lived together for three periods totalling less than one year – only one of those periods was after 1 March 2009 and it lasted only six weeks – the parties occasionally stayed at each other’s houses – there were a number of intervention orders over the years against the applicant for the protection of the respondent and the children – the applicant was removed from the respondent’s house by the police on two occasions – declaration that the parties were never in a de facto relationship.

Legislation:
Child Support (Assessment) Act 1989, s.25
Family Law Act 1975, ss.4AA(1), 4AA(2), 44(5), 44(6), 79, 90RD, 90RG, 90SF, 90SM
Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008, item 86 of Schedule 1

Cases cited:
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] ALR 334; (1938) 12 ALJR 100; [1938] HCA 34
Cadman v Hallett (2014) 52 Fam LR 149; (2014) Fam CAFC 142
In the Marriage of Elias (1977) 29 FLR 393; (1977) 3 Fam LR 11,496; (1977) FLC 90-267
Jonah v White (2011) 258 FLR 236; (2011) 45 Fam LR 460; [2011] FamCA 221
Jonah v White (2012) 48 Fan KR 562; (2012) FLC 93-522; [2012] Fam CAFC 200
Moby v Schulter [2010] Fam CA 748; (2010) FLC 93-447
Sinclair & Whittaker [2013] FamCAFC 129; (2013) FLC 93-550

Applicant:

MR WELDON

Respondent:

MS LEVITT

File Number:

MLC 240 of 2016

Judgment of:

Judge Riley

Hearing dates:

10, 11 and 12 July 2017

Date of last submission:

2 October 2017

Delivered at:

Melbourne

Delivered on:

11 December 2017

REPRESENTATION

Counsel for the applicant:

Dr O’Brien

Solicitors for the applicant:

D & M Lawyers

Counsel for the respondent:

Ms Marshall

Solicitors for the respondent:

Altona Legal

DECLARATION

Pursuant to s.90RD of the Family Law Act 1975, the applicant and the respondent were never in a de facto relationship.

ORDERS

The application filed on 29 November 2016 be dismissed.
Within seven days the applicant withdraw the caveat he lodged over Property A.

NOTATIONS

Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 240 of 2016

MR WELDON

Applicant

And

MS LEVITT

Respondent

REASONS FOR JUDGMENT

Introduction

In this proceeding, the applicant sought a property settlement on…

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 Weldon and Levitt

Details

AGLC: Weldon and Levitt [2017] FCCA 3072
Case: [2017] FCCA 3072
Decision Date: 11 December 2017

CaseChat Overview and Summary

In *Weldon and Levitt*, heard by Judge Riley, the applicant sought to have a caveat lodged over Property A removed. The respondent opposed this application.

The central legal issue before the Court was whether the applicant was entitled to maintain the caveat over Property A. This required the Court to consider the applicant's legal standing and the grounds upon which a caveat could be sustained.

Judge Riley dismissed the application, finding that the applicant had not established a sufficient legal interest to justify the continued presence of the caveat. Consequently, the Court ordered the applicant to withdraw the caveat within seven days.

Orders

Orders of the court

The application filed on 29 November 2016 be dismissed.

Within seven days the applicant withdraw the caveat he lodged over Property A.

NOTATIONS

Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.

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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