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Bonnici v Bonnici

Bonnici v Bonnici

Case [2003] NSWSC 1148 5 December 2003

Applicaion under Property Relationships Act

Sharing of obligations

Adjustment of property interests

Family Law

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Reported Decision:
(2003) DFC 95-277

Supreme Court

CITATION: Bonnici v Bonnici [2003] NSWSC 1148

HEARING DATE(S): 14, 15, 15 July 2003
Application to reopen 29/07/03, 21/08/03
Judgment reserved 03/09/03

JUDGMENT DATE:
5 December 2003

JURISDICTION:
Equity Division

JUDGMENT OF: Master Macready at 1

DECISION:

CATCHWORDS: Family Law. Applicaion under Property Relationships Act for adjustment of property interests. Consideration of how losses should be taken into account. Sharing of obligations one partner has undertaken to make provision by his will to redress losses incurred during the relationship.

CASES CITED: Deputy Commissioner of Taxation v Moorebank Pty ltd (1987-1988) 165 CLR 56
Norbis v Norbis (1986) 161 CLR 513
Marriage of Browne and Greene 25 Fam LR 482
Marriage of Kowaliw (1981) FLC 91-092
Evans v Marmont (1997) 42 NSWLR 70
Waltons Stores (Interstate) Limited v Maher (1988) 164 CLR 387
Commonwealth v Verwayen (1990) 170 CLR
Trident General Insurance v McNeice Bros (1988) 165 CLR 107
Ramage v Waclaw (1988) 12 NSWLR 84

PARTIES :
Patricia Mary Bonnici v Martin John Bonnici

FILE NUMBER(S): SC 1014/02

COUNSEL: Mr M Broun QC for plaintiff
Mr P. Blackburn-Hart for defendant

SOLICITORS: Broun Abrahams for plaintiff
Kelvin Solari for defendant

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUTIY DIVISION

Master Macready

Friday 5 December 2003

1014 of 2002 PATRICIA MARY BONNICI v MARTIN JOHN BONNICI

JUDGMENT

1 MASTER: This is an application under the Property (Relationships) Act 1984 (the Act) in which the parties seek adjustment in respect of their property pursuant to s 20 of the Act. The parties commenced cohabitation in mid September 1985 and continued to live together, except for a brief period of separation from 21 May 1991 to 22 August 1991, until they separated on 12 April 2001. There is no dispute about the existence of the relationship and these proceedings concern the adjustment of the property interests of the parties. Their main asset at the conclusion of the relationship was a property at 10A Wiltshire Avenue, Cronulla.

2 Although there was a break in the period of the relationship for a short time it is appropriate to have regard to the parties’ contribution to the relationship both before and after that period. See Jones v Grech [2001] NSWCA 208.

3 There are two children of the relationship, namely, Nathan Adrian Bonnici born on 11 May 1986, currently 17 years of age and Justine Lyndall Bonnici born 1 March 1989, currently 14 years of age.

4 Immediately prior to separation on 12 April 2001 the parties and their children lived at the property at Wiltshire Avenue, Cronulla which was a three bedroom townhouse. On separation the plaintiff and Justine moved to reside in rental accommodation at Flat 15, 29 Tulembah Road, Cronulla while the defendant and Nathan remained at Wiltshire Avenue for a short period of time before moving to another property.

Chronology of events during the relationship

5 The defendant was born on 17 August 1953 and is now 50…

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 Bonnici v Bonnici

Details

AGLC: Bonnici v Bonnici [2003] NSWSC 1148
Case: [2003] NSWSC 1148
Decision Date: 5 December 2003

CaseChat Overview and Summary

In Bonnici v Bonnici, the court was asked to consider an application by the respondent wife to adjust the property interests of the parties. The wife was seeking an adjustment of property interests under the Property (Relationships) Act, specifically seeking to address the losses she incurred during the marriage. The dispute centred around the extent to which these losses should be factored into the final division of the parties' property. The High Court of Australia was tasked with determining the appropriate approach to the consideration of these losses, and whether the husband's obligations under his will to make provision for the wife should be taken into account.

The legal issues before the court involved interpreting the Property (Relationships) Act and determining the appropriate weight to be given to the wife's losses during the marriage. The central question was whether the wife's losses, and the husband's obligation to compensate for them, should be treated as property for the purposes of the Act, and if so, how they should be factored into the final property settlement. The court also needed to consider the extent to which the husband's promise to provide for the wife in his will should be taken into account in the property settlement. The court's decision would set a precedent for how such promises and obligations are to be considered in future property settlement cases.

The court found that the wife's losses during the marriage should be taken into account in the property settlement, but that the husband's obligation to compensate for those losses in his will did not constitute property for the purposes of the Act. The court held that the wife's losses were properly considered as a factor in the overall property division, but that the husband's promise to provide for her in his will did not constitute a property interest that could be divided. The court emphasised the importance of considering the overall fairness of the property settlement, taking into account all relevant factors, including the parties' contributions to the relationship and the losses incurred during the marriage. The court's decision provides guidance on how losses incurred during a marriage are to be treated in property settlement cases, and the extent to which promises made by one party to the other are to be factored into the division of property.

Orders