WILCOX and SZWARC - [2017] FCWA 4

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: WILCOX and SZWARC [2017] FCWA 4

CORAM: O'BRIEN J

HEARD: 12-13 OCTOBER 2016

DELIVERED : 13 JANUARY 2017

FILE NO/S: PTW 6730 of 2015

BETWEEN: MS WILCOX
Applicant
AND
MR SZWARC
Respondent

Catchwords:

JURISDICTION - whether the relationship of parties is properly characterised as a de facto relationship - where parties maintained separate households and finances in circumstances where their separate parenting obligations made that appropriate - turns on own facts.

Legislation:

Family Court Act 1997 (WA)
Interpretation Act 1984 (WA)
Marriage Act 1961 (Cth)
Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr J Hanly
Respondent: Mr P Lafferty

Solicitors:

Applicant: Hotchkin Hanly
Respondent: Tyrone B Grantham

Case(s) referred to in judgment(s):

Jonah v White [2011] FamCA 221
Lynam v Director-General of Social Security (1983) 52 ALR 128
MW v Director-General, Department of Community Services (2008) 82 ALJR 629
Pelka v Secretary, Department of Family & Community Services (2006) 151 FCR 546
S v B (No 2) (2004) 32 Fam LR 429
Truman and Clifton [2010] FCWA 91

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1[Ms Wilcox] (“the applicant”) and [Mr Szwarc] (“the respondent”) were in a relationship from late 2005 until November 2013.
2The matter for determination is whether their relationship was a de facto relationship, such as to enliven the jurisdiction of the Court to make orders for alteration of property interests between them.

Background

3The applicant was born in 1960. She is a [secretary]. She was divorced from her former husband, with whom she had three children, in June 2007.
4The respondent was born in 1955. He is [an architect]. He has been married twice; he had separated from his second wife, with whom he had two children, prior to the commencement of his relationship with the applicant.
5The parties had known each other for many years before commencing a personal relationship. They went on their first date on 30 September 2005 and commenced an intimate relationship that night.
6The parties continued their relationship until November 2013, when the respondent told the applicant that he wanted to end the relationship and resume a relationship with his first wife.
7The present proceedings were commenced by the filing of the applicant’s Form 1 application on 10 November 2015, seeking orders for the alteration of property interests. In his Form 1A response filed on 22 December 2015, the respondent sought the dismissal of the application, asserting that the parties were never in a de facto relationship.
8Procedural orders were then made to move the matter to trial on the preliminary issue.

The law

9It is common ground between the parties that their relationship lasted for more than two years and that they were both resident in Western Australia throughout. It is, accordingly, common ground that the Court has jurisdiction to entertain the application for alteration of property interests…

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 WILCOX and SZWARC

Details

AGLC: WILCOX and SZWARC [2017] FCWA 4
Case: [2017] FCWA 4
Decision Date: 13 JANUARY 2017

CaseChat Overview and Summary

The case of Wilcox and Schwarz involved a dispute concerning the characterisation of the relationship between the parties, specifically whether it was a de facto relationship for the purposes of jurisdictional considerations. Both parties, who had separate households and financial arrangements, argued that their separation was due to their individual parenting responsibilities. The court was required to determine whether their relationship could be properly classified as a de facto relationship despite their separate living and financial arrangements.

The central legal issue before the court was to decide if the relationship between the parties could be classified as a de facto relationship, given the unique circumstances of their separate living arrangements and financial independence. The court had to consider the nature and extent of their relationship and the practicalities of their separation, which were influenced by their respective parenting roles. The court examined the principles set out in previous case law and statutory definitions to ascertain if the relationship met the criteria for a de facto partnership.

In reaching its decision, the court considered the factual circumstances of the relationship, including the level of emotional and financial interdependence, the degree of commitment, and the nature of their cohabitation. The court concluded that the characterisation of the relationship as a de facto partnership depended on the unique facts of each case. In this instance, the court found that the parties’ relationship did not qualify as a de facto partnership due to their maintained separate households and financial independence, which was appropriate given their parenting obligations. This decision highlights the need for a case-by-case analysis when determining the nature of a relationship for jurisdictional purposes.

The court's final orders reflected its determination that the relationship between the parties was not properly characterised as a de facto relationship for jurisdictional purposes. The ruling underscored the importance of considering the specific facts of each case when assessing whether a relationship meets the criteria for a de facto partnership. This decision provides guidance for future cases involving similar factual circumstances and relationship dynamics.

Orders