WRIGHT & IVAN
[2011] FMCAfam 449
•7 April 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WRIGHT & IVAN | [2011] FMCAfam 449 |
| FAMILY LAW – Whether de facto relationship for two years. |
| Family Law Act 1975 (Cth), ss.4AA, 90RD, 90SB(a), 117 Federal Magistrates Court Rules 2001, rr.21.15, 13.03C(1)(e) |
| Applicant: | MS WRIGHT |
| Respondent: | MR IVAN |
| File Number: | DGC 298 of 2011 |
| Judgment of: | Phipps FM |
| Hearing date: | 7 April 2011 |
| Date of Last Submission: | 7 April 2011 |
| Delivered at: | Dandenong |
| Delivered on: | 7 April 2011 |
REPRESENTATION
| There being no appearance for the Applicant: |
| Counsel for the Respondent: | Mr Dunlop |
| Solicitors for the Respondent: | Neil Collin & Associates |
THE COURT DECLARES
Pursuant to ss.90RD and 4AA of the Family Law Act 1975 (Cth) a de facto relationship existed between the applicant and the respondent during the period from 14 February 2009 until 15 July 2009 only.
ORDERS
All previous orders be and are hereby discharged.
As a consequence of the above declaration and s.90SB(a) of the Family Law Act 1975 (Cth) the application filed 4 February 2011 and the response filed 9 February 2011 are otherwise dismissed.
The applicant pay the respondent’s costs in the sum of $12,913.
Pursuant to Rule 21.15 of the Federal Magistrates Court Rules 2001 the Court certifies that it was reasonable for each party to employ an advocate.
IT IS NOTED that publication of this judgment under the pseudonym Wright & Ivan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DANDENONG |
DGC 298 of 2011
| MS WRIGHT |
Applicant
And
| MR IVAN |
Respondent
REASONS FOR JUDGMENT
The applicant alleges a de facto relationship existed between her and the respondent, between May 2006 and September 2009. The respondent says that the de facto relationship was between 14 February 2009 and 15 July 2009 only. The relevant provision of the Family Law Act 1975 (Cth) is s.90SB(a):
A court may make an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL, in relation to a de facto relationship only if the court is satisfied:
(a)that the period, or the total of the periods, of the de facto relationship is at least 2 years;
There are no children of the parties’ relationship.
The preliminary issue between the parties is the length of their de facto relationship. On 9 February 2009, I ordered that the matter be listed for a one day hearing to decide the preliminary question as to whether a de facto relationship existed between the parties, and if so, for what period, and that that hearing be today at 10.00am. The applicant on that day was represented by a duty solicitor, Mr G appearing amicus curiae. On 4 February 2011, the applicant had appeared in person applying for an ex parte injunction. She alleged in the application she made that she had seen a For Sale sign on what she alleged had been the parties’ de facto relationship home at, [Property B]. I made an ex parte interim order which lasted until 4.00pm on 9 February 2011 restraining the respondent by injunction from encumbering the property or disposing of the proceeds of sale.
On 9 February 2011, that injunction was discharged and an order made which dealt with the proceeds of the sale of the property; that is, that the balance remaining after payment of the usual expenses would be held in an interest-bearing trust account by the respondent’s solicitors.
The applicant has not appeared today for the final hearing. She has been called twice; once when the matter was initially called at 10.05am this morning, and then, again, at about 11.30am. She has not appeared. The respondent wishes to proceed with the hearing in accordance with r.13.03C(1)(e) of the Federal Magistrates Court Rules 2001. The rule permits the Court, when a party does not appear, to proceed with the hearing generally or in relation to any claim for relief. It will appear from the reasons I am about to give that it is not surprising that the applicant has not appeared.
So far as the de facto relationship is concerned, the applicant’s only affidavit filed on 4 February 2011 does little more than allege that the parties cohabited between May 2006 and September 2009. She makes allegations about matters which occurred during the relationship but gives no further detail. The respondent, Mr Ivan, filed an affidavit on 9 February 2011 in which he sets out in detail what he says the nature of the relationship between him and the applicant was. He says that they dated for approximately three years and lived together continually from 14 February 2009 until 15 July 2009. He says the applicant moved out of his house in late August 2009, and he said prior to this continuous period, the applicant stayed on and off for a few weeks between 2006 and 2008.
He says that on 15 August 2006, the applicant was evicted from her rental property at [Property H], for not paying the rent. He says that the applicant then stayed at her friend Ms R’s house at, [Property P], and in his house. She had a disagreement with Ms R and moved into the respondent’s former wife’s residence at [Property N]. In December 2006, she found permanent accommodation in a rental property at, [Property E]. Some time between June 2007 and December 2007, the applicant moved out from [Property E] and went to live with the parents of her son’s girlfriend in [Property L]. The respondent says during that time the applicant would stay on and off at his house or at her cousin’s house.
In December 2007, the applicant moved into a further rental property at [Property F]. On 25 November 2008, the respondent paid the applicant’s bond and one month’s rent for a rental property at the corner of [road omitted] and [road omitted], [Property W]. She lived there until evicted on 14 February 2009. The respondent says he assisted the applicant and paid for a truck to move her personal property to storage. He then says the applicant moved into his house on 14 February 2009 and moved out in August 2009. He gives more detail of events which occurred during the relationship. He annexes to his affidavit a number of documents. One of them is a document which the applicant sent him in which she sets out the history of their relationship. It is a lengthy document. I do not need to refer to it other than to say that it corroborates what the respondent says in his affidavit about the parties’ relationship; that is, that they cohabited between February and May 2009 only. It refers to the other premises in which the applicant stayed and the nature of their relationship.
Affidavits filed on behalf of the respondent refer to what the makers of the affidavits observed of the living arrangements of the respondent and the applicant. I do not need to refer to those because I have a detailed description from the respondent’s affidavit, from which the only conclusion which can be reached is that the parties were in a de facto relationship as that is defined in s.4AA of the Family Law Act 1975 (Cth), from February to July 2009. A document which the respondent says he received from the applicant, a document she prepared, corroborates this. The nature of the document and the accompanying email show that the probability is that this is a document which was prepared by the applicant. She has been served with the respondent’s affidavit which annexes that document.
On 9 February 2011, when I fixed the matter for hearing today, I made an order that the applicant file and serve any further affidavit material 21 days prior to the hearing. On that day the mother had the assistance of an experienced duty solicitor. She has received that affidavit. She has not responded. I have credible, inherently probable evidence that the parties were in a de facto relationship for the period 14 February 2009 until 15 July 2009 only.
ORDERS DELIVERED
The respondent applies for an order for costs. Orders for costs are dealt with in s.117 of the Family Law Act 1975 (Cth). The normal rule is that each party bears their own costs. Subsection (2) permits the court to make a different order and subs.(2A) sets out the matters the court is to take into account. One of those matters is if one of the parties has been wholly unsuccessful and another is the conduct of that party in relation to the proceedings. In this case, the applicant has been wholly unsuccessful. She has not filed any material in response to the respondent’s affidavits and she has not appeared at the hearing.
In the absence of any dispute about the document that the applicant prepared, the applicant had a very weak case if she had a case at all. A likely explanation for her non appearance is that she had no answer to that document because she had prepared it and what is stated in it is true. In these circumstances the respondent has been put to the cost of these proceedings when he should not have.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Phipps FM
Date: 10 May 2011
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