Zabel and Zabel - [2018] FCCA 115

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZABEL & ZABEL

[2018] FCCA 115

Catchwords:
FAMILY LAW – Application for declaration of a de facto relationship dismissed – application for leave to bring proceedings out of time for property settlement pursuant to s.44(3) granted.

Legislation:

Family Law Act 1975, ss.4AA, 44(3), 79, 90RD(1)

Cases cited:

Jonah & White [2011] FAMCA 221
Sinclair v Whittaker [2013] FAMCAFC 129
Elias & Elias (1977) FLC 90-267
Benedict v Peake [2013] FCCA 332
Jones v Dunkel (1959) 101 CLR 298
Lynam v DG of Social Security (1893) 52 ALR 128
Whitford & Whitford (1979) FLC 90-612
G & G [1999] FAMCA 240
Althous & Althous (1982) FLC 91-233
Montano & Kinross [2014] FAMCAFC 231

Applicant:

MS ZABEL

Respondent:

MR ZABEL

File Number:

HBC 693 of 2009

Judgment of:

Judge McGuire

Hearing date:

12 December 2017

Date of Last Submission:

12 December 2017

Delivered at:

Launceston

Delivered on:

30 January 2018

REPRESENTATION

Counsel for the Applicant:

Mr M Verney

Solicitors for the Applicant:

Matthew Verney Lawyers

Counsel for the Respondent:

Ms K Mooney

Solicitors for the Respondent:

Websters Lawyers

ORDERS

That the application by MS ZABEL for a declaration of a de facto relationship with MR ZABEL be dismissed.
That pursuant to section 44(3) of the Family Law Act1975 the applicant have leave to bring application for property settlement under s.79 of the Act out of time.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT LAUNCESTON

HBC 693 of 2009

MS ZABEL

Applicant

And

MR ZABEL

Respondent

REASONS FOR JUDGMENT

Ms Zabel is the applicant in alternative applications heard as preliminary issues to an anticipated property settlement application. Firstly, she seeks a declaration that the parties were in a de facto relationship between the date of their divorce on 25 September 2009 until 1 July 2016. If the Court is against the applicant in this respect then she asks for an order pursuant to s.44(3) of the Family Law Act 1975 (“the Act”) giving leave for her to bring proceedings for alteration of property interests pursuant to s.79 of the act out of time.
Both applications are opposed by Mr Zabel.

Background

The applicant is from the (country omitted) and is 58 years old. The husband is originally from (country omitted) and is 78 years of age. He has lived in Australia since 1962. Ms Zabel is the respondent’s fifth wife. He has a son, X, by his fourth marriage and who lived variously with the parties.
The parties commenced a relationship in (omitted) 2005 and were married in the (country omitted) on (omitted) 2005.
The applicant came to Australia in (omitted) 2006 when the parties effectively commenced cohabitation.
In 2006 the respondent purchased a property in the (country omitted) for the applicant. She retains that property where members of her family apparently live.
It is generally agreed that there were two…

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 Zabel and Zabel

Details

AGLC: Zabel and Zabel [2018] FCCA 115
Case: [2018] FCCA 115
Decision Date: 30 January 2018

CaseChat Overview and Summary

In the matter of *Zabel and Zabel*, heard by Judge McGuire, the applicant, Ms Zabel, sought a declaration that she was in a de facto relationship with Mr Zabel. The court was also asked to consider an application for property settlement.

The primary legal issue before the court was whether Ms Zabel could establish the existence of a de facto relationship with Mr Zabel. A secondary issue arose concerning the timing of Ms Zabel's application for property settlement, specifically whether she should be granted leave to bring such an application out of time, pursuant to section 44(3) of the *Family Law Act 1975* (Cth).

The court dismissed Ms Zabel's application for a declaration of a de facto relationship. However, the court granted Ms Zabel leave to bring her application for property settlement under section 79 of the *Family Law Act 1975* out of time.

Orders

Orders of the court

That the application by MS ZABEL for a declaration of a de facto relationship with MR ZABEL be dismissed.

That pursuant to section 44(3) of the Family Law Act 1975 the applicant have leave to bring application for property settlement under s.79 of the Act out of time.

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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