AC v CM - [2010] QSC 384

SUPREME COURT OF QUEENSLAND

CITATION:

AC v CM [2010] QSC 384

PARTIES:

AC
(applicant)
v
DM
(respondent)

FILE NO/S:

SC No 241 of 2010

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court Rockhampton

DELIVERED ON:

13 October 2010

DELIVERED AT:

Rockhampton

HEARING DATE:

27 September 2010

JUDGE:

McMeekin J

ORDER:

1.   The applicant has leave to seek a property adjustment order under Part 19 of the Property Law Act 1974;

2.   The evidence in chief of any witness is to be provided by way of affidavit;

3.   The applicant is to file any further affidavit upon which she wishes to rely within 14 days;

4.   The respondent is to file any further affidavit upon which he wishes to rely within 28 days;

5.   Chapter 7 of the Uniform Civil Procedure Rules is to apply and the parties are to complete disclosure by delivery of a list of documents within 42 days;

6.   The parties are to endeavour to agree on a dispute resolution plan and failing agreement the application is to be listed for further hearing on 15 November 2010 and the parties directed to file short minutes of the orders that they respectively seek at least two days prior to the hearing;

7.   The application be adjourned to a date to be fixed; and

8.   There is no order as to costs.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – DE FACTO RELATIONSHIPS – ADJUSTMENT OF PROPERTY INTERESTS – APPLICATION – where applicant sought leave to apply for a property adjustment order pursuant to
s 288(2) of the Property Law Act 1974 (Qld) – where respondent denies any de facto relationship – where end date of relationship disputed – whether refusal to grant leave would cause hardship to the applicant – whether the discretion to grant leave to apply should be exercised in favour of the applicant

Acts Interpretation Act 1954 (Qld), s 32DA, s 260
Family Law Act 1974 (Cth), s 44(4)
Property Law Act 1974 (Qld), s 258, s 288, s 291

Baumgartner v Baumgartner (1987) 164 CLR 137
Hibberson v George [1989] NSWCA 100
In the Marriage of Jacenko (1986) 11 Fam LR 341; (1986) FLC 91-776
In the Marriage of Whitford (1979) FLC 90-612
Kennon v Kennon (1997) 22 Fam LR 1
S v B [2005] 1 Qd R 537; [2004] QCA 449

COUNSEL:

T. Ryan for the applicant
A. Arnold for the respondent

SOLICITORS:

Cam Schroder Lawyers for the applicant
Madden Solicitors for the respondent

[1] McMeekin J: On 27 April 2010 the applicant filed an application for leave to commence proceedings for a property adjustment order pursuant to s 288(2) of the Property Law Act 1974 (“the Act”). The respondent opposes leave being given.

[2] Section 288 of the Act provides:

(1) “A court may make a property adjustment order only if –

(a) the application was made within 2 years after the day in which the de facto relationship ended; or

(b) the court has given the applicant leave to apply.

(2)…

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 AC v CM

Details

AGLC: AC v CM [2010] QSC 384
Case: [2010] QSC 384
Decision Date: 13 October 2010

CaseChat Overview and Summary

AC made an application in the Family Court of Australia for leave to apply for a property adjustment order under section 288(2) of the Property Law Act 1974 (Qld). The application followed a de facto relationship between AC and CM, the respondent, and a dispute over the end date of the relationship, as well as the existence of a de facto relationship. The court was required to decide whether to exercise its discretion in favour of granting leave to apply to the applicant, and whether to do so would cause hardship to the applicant.

The court considered the evidence presented by AC, who sought to establish the existence of a de facto relationship and the end date of the relationship. The court also took into account the fact that CM had denied any de facto relationship, and that the end date of the relationship was disputed. The court found that there was a possibility that a de facto relationship had existed, and that the applicant may have suffered hardship if leave to apply was not granted. The court concluded that it should exercise its discretion in favour of granting leave to apply to the applicant.

The court made orders that the applicant has leave to seek a property adjustment order under Part 19 of the Property Law Act 1974. The court also ordered that evidence in chief of any witness is to be provided by way of affidavit, and that the applicant and respondent must file further affidavits within 14 and 28 days, respectively. The court further ordered that the parties are to complete disclosure by delivering a list of documents within 42 days, and that they are to endeavour to agree on a dispute resolution plan. If the parties are unable to agree, the application is to be listed for further hearing on 15 November 2010. The application was adjourned to a date to be fixed, and there was no order as to costs.

Orders

Orders of the court

1. The applicant has leave to seek a property adjustment order under Part 19 of the Property Law Act 1974;

2. The evidence in chief of any witness is to be provided by way of affidavit;

3. The applicant is to file any further affidavit upon which she wishes to rely within 14 days;

4. The respondent is to file any further affidavit upon which he wishes to rely within 28 days;

5. Chapter 7 of the Uniform Civil Procedure Rules is to apply and the parties are to complete disclosure by delivery of a list of documents within 42 days;

6. The parties are to endeavour to agree on a dispute resolution plan and failing agreement the application is to be listed for further hearing on 15 November 2010 and the parties directed to file short minutes of the orders that they respectively seek at least two days prior to the hearing;

7. The application be adjourned to a date to be fixed; and

8. There is no order as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	AC v CM [2010] QSC 384
PARTIES:	AC (applicant) v DM (respondent)
FILE NO/S:	SC No 241 of 2010
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court Rockhampton
DELIVERED ON:	13 October 2010
DELIVERED AT:	Rockhampton
HEARING DATE:	27 September 2010
JUDGE:	McMeekin J
ORDER:	1. *The applicant has leave to seek a property adjustment order under Part 19 of the Property Law Act* 1974; 2. The evidence in chief of any witness is to be provided by way of affidavit; 3. The applicant is to file any further affidavit upon which she wishes to rely within 14 days; 4. The respondent is to file any further affidavit upon which he wishes to rely within 28 days; 5. Chapter 7 of the Uniform Civil Procedure Rules is to apply and the parties are to complete disclosure by delivery of a list of documents within 42 days; 6. The parties are to endeavour to agree on a dispute resolution plan and failing agreement the application is to be listed for further hearing on 15 November 2010 and the parties directed to file short minutes of the orders that they respectively seek at least two days prior to the hearing; 7. The application be adjourned to a date to be fixed; and 8. There is no order as to costs.**
CATCHWORDS:	FAMILY LAW AND CHILD WELFARE – DE FACTO RELATIONSHIPS – ADJUSTMENT OF PROPERTY INTERESTS – APPLICATION – where applicant sought leave to apply for a property adjustment order pursuant to s 288(2) of the Property Law Act 1974 (Qld) – where respondent denies any de facto relationship – where end date of relationship disputed – whether refusal to grant leave would cause hardship to the applicant – whether the discretion to grant leave to apply should be exercised in favour of the applicant Acts Interpretation Act 1954 (Qld), s 32DA, s 260 Family Law Act 1974 (Cth), s 44(4) Property Law Act 1974 (Qld), s 258, s 288, s 291 Baumgartner v Baumgartner (1987) 164 CLR 137 Hibberson v George [1989] NSWCA 100 In the Marriage of Jacenko (1986) 11 Fam LR 341; (1986) FLC 91-776 In the Marriage of Whitford (1979) FLC 90-612 Kennon v Kennon (1997) 22 Fam LR 1 S v B [2005] 1 Qd R 537; [2004] QCA 449
COUNSEL:	T. Ryan for the applicant A. Arnold for the respondent
SOLICITORS:	Cam Schroder Lawyers for the applicant Madden Solicitors for the respondent