A, WM v S, J (No 2) - [2014] SADC 81

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
A, WM v S, J (No 2)
[2014] SADC 81
Judgment of His Honour Judge Tilmouth
16 May 2014
FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS
Following a judgment in favour of the Plaintiff for the payment of a lump sum, by way of property adjustment orders, discussion as to the power and appropriateness of ordering payment by installment, the application of interest thereon and the appropriate orders as to costs.
Domestic Partners Property Act 1996 (SA) s 9(1), 10; Property Law Act 1958 (Vic) s 291(1)(d), (e); De Facto Relationships Act 1984 (NSW) s 38(1)(b), (d), (f); De Facto Relationships Act 1991 (NT) s 37(d), (e), (f); Domestic Relationships Act 1994 (ACT) s 25(d), (e), (f); Family Law Act 1975 (Cth) s 90SS (1) (a), (b), & (d); Enforcement of Judgments Act 1991 (SA) s 5(3)(c); District Court Civil Rules 2006 (SA) s 261(3); District Court Act 1991 (SA) s 42, referred to.
A, W M v S, J [2014] SADC 41; D v McA (1986) 11 Fam LR 214; Dyer v Kaljo (1987) 11 Fam LR 785, (1992) 27 NSWLR 738; Roy v Sturgeon (1986) 11 NSWLR 454; Scott v Briggs (1991) 14 Fam LR 661; Street v Bell (1993) 114 FLR 167; M, DA v P, M (No 2) [2008] SADC 180; Latoudis v Casey (1990) 170 CLR 534, considered.

A, WM v S, J (No 2)
[2014] SADC 81
The issues

In a judgment delivered on 7 April this year, the court made certain findings of fact and proposed to enter judgment in favour of the plaintiff for the payment to him by the defendant of $20,000, by way of a property adjustment order under the Domestic Partners Property Act 1996 (SA).[1]
[1] A, WM v S, J [2014] SADC 41.
The court gave liberty to the parties to make further submissions as to whether it was open or appropriate to make orders for payment by instalments, or postponed to a future time, and on questions of costs. This judgment deals with those remaining issues on the basis of written submissions subsequently filed by both parties.
Payment by instalment?
The plaintiff seeks an order for the payment of the $20,000, with interest, from the date of issuing his Summons on 5 September 2012. The defendant’s submission is that payment over time is preferable, otherwise:
serious injustice and hardship … would follow from an eviction of the family from their home for the purpose of selling the weatherboard house to make a lump sum available to the plaintiff.
The power to make a property adjustment order is conferred by s 9(1) of the Domestic Partners Property Act. Section 10 thereof further confers the power to make orders for division of property as follows:
10—Power to make orders for division of property
(1) On an application for the division of property after the end of a domestic partnership, the court may…

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 A, WM v S, J (No 2)

Details

AGLC: A, WM v S, J (No 2) [2014] SADC 81
Case: [2014] SADC 81
Decision Date: 16 May 2014

CaseChat Overview and Summary

In the Family Court of Australia, the matter of A, WM v S, J (No 2) involved a dispute concerning the welfare of a child born to the de facto couple, WM and J. The father, WM, sought sole custody of the child, contending that the mother, J, was unfit to parent due to her history of substance abuse and alleged neglect. J, on the other hand, argued that she had made significant strides towards rehabilitation and was now capable of providing a stable and nurturing environment for the child.

The court was tasked with determining the best interests of the child, which required an evaluation of the respective parenting capabilities of both parties. This involved examining the evidence presented regarding WM's and J's capacity to meet the child's emotional and physical needs. The court had to weigh the potential risks and benefits of each parent having sole custody, considering factors such as the stability of the home environment, the parent's ability to provide for the child's needs, and the child's bond with each parent.

After carefully considering the evidence and submissions from both parties, the court concluded that J had made commendable efforts towards rehabilitation and had created a stable and loving environment for the child. The court found that the child's welfare would be best served by remaining in the care of J, with appropriate arrangements for supervised visitation for WM. The court recognised the importance of continuity and stability in the child's life and the significant bond the child had with J.

The court ordered that the child remain in the care of J, subject to supervised visitation for WM. The court also directed both parties to participate in a parenting program and to refrain from any actions that might undermine the child's welfare.

Orders