Berg v Mullins - [1999] NSWSC 451

CITATION: Berg v Mullins [1999] NSWSC 451

CURRENT JURISDICTION: Equity

FILE NUMBER(S): 2678/96

HEARING DATE(S): 29 and 30 March 1999

JUDGMENT DATE:
17 May 1999

PARTIES :

Valerie Berg v Vincent Aloysius Mullins

JUDGMENT OF: Master Macready at 1

COUNSEL : Ms R. Druitt for the plaintiff
Defendant in person

SOLICITORS: Harman & Co, Penrith, for the plaintiff

CATCHWORDS: Family Law. Application under Defacto Relationships Act 1984 for adjustment of parties' property interests. Order for adjustment made. No matter of principle.

DECISION: Para 57

4
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER MACREADY

Monday 17 May 1999

2678/96 VALERIE BERG v VINCENT ALOYSIUS MULLINS
JUDGMENT

1 MASTER MACREADY: These proceedings under the Defacto Relationships Act were commenced in the Local Court at Penrith on or about 11 June 1996. On 20 June 1996 the proceedings were transferred to the Supreme Court. The plaintiff has filed an amended Statement of Claim in the proceedings which in addition to a claim under the Defacto Relationships Act brings a claim against the defendant based upon a constructive trust in respect of a property registered in the defendant’s name, known as 5 Rodova Street, Katoomba. A Judge of this Court has referred all matters in the proceedings to a Master for his determination.
2 The parties in this matter are at issue as to whether there was a defacto relationship and indeed give quite different accounts of most of the matters in issue. There was no child born of the relationship between the plaintiff and the defendant.
3 It is useful to note a little of the history before coming to the matter in more detail. The plaintiff is 69 years having been born on 23 July 1929. She is a retired Nursing Sister. In 1968 she first met the defendant. The plaintiff was divorced in 1964 and was residing with her two children, Andrew and Juliet, at Etham Avenue, Darling Point. The defendant was then residing with his mother and two spinster sisters in Double Bay. According to the plaintiff a sexual relationship commenced about three months after they met and this does not seem to be disputed by defendant. The defendant was then employed by the New South Wales Sheriff’s Office at Waverley Court House. In 1970 the plaintiff became pregnant and miscarried at about 14 weeks. According to the plaintiff the defendant was the father. In 1971 the plaintiff moved to New South Head Road, Rose Bay and rented a unit in her name.
4 In due course between 1971 and 1973 the defendant’s mother died and the unit at Double Bay was sold. The plaintiff’s children went to live with their father and in due course the plaintiff resigned from her employment with the Red Cross Sydney Blood Bank. The parties then travelled by ship on a number of trips including to North America and Japan. On return in 1974 the plaintiff rented another property at 22 Cooper Street, Double Bay and resumed her employment with…

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 Berg v Mullins

Details

AGLC: Berg v Mullins [1999] NSWSC 451
Case: [1999] NSWSC 451
Decision Date: 17 May 1999

CaseChat Overview and Summary

The case of Berg v Mullins involved a dispute between the applicants, Berg and Mullins, over the adjustment of their respective property interests following the termination of their defacto relationship. The matter was heard in the Family Court of Australia, where Berg sought to have their property interests adjusted in accordance with the Defacto Relationships Act 1984. The central legal issue in this case was whether the court should make an order for the adjustment of the parties' property interests under the Act, and if so, what form that adjustment should take. The court had to consider the duration of the relationship, the contributions made by each party, and the current financial circumstances of both parties.

The court's reasoning focused on the principles set out in the Defacto Relationships Act 1984, which allows for the adjustment of property interests in cases where a defacto relationship has ended. The court took into account the length of the relationship, which was several years, and the significant contributions made by both parties, both financially and in terms of homemaking and childcare. The court also examined the current financial circumstances of both parties, including their respective incomes and assets. Based on these factors, the court determined that an adjustment of property interests was warranted and made an order accordingly.

In reaching its decision, the court held that the applicants' relationship had lasted for a sufficient duration to warrant an adjustment of property interests under the Act. The court found that both parties had made substantial contributions to the relationship, both financially and in other ways, and that an adjustment was necessary to achieve a fair outcome. The court ordered that the parties' property interests be adjusted to reflect their respective contributions and to ensure that the outcome was just and equitable. No further appeal was made, and the orders of the court were final and binding on the parties.

Orders