Bradmore v ALLEN - [2012] SADC 51

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
BRADMORE v ALLEN
[2012] SADC 51
Reasons for Interim Decision of His Honour Judge Herriman
24 April 2012
FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS - ADJUSTMENT OF PROPERTY INTERESTS - RELEVANT CONSIDERATIONS
Plaintiff seeks orders for adjustment of property interests under the Domestic Partners Property Act. Nature and duration of relationship in dispute. Plaintiff bankrupted during relationship. Questions as to title of parties to assets where derived by plaintiff during bankruptcy. Preliminary findings made and final judgment stood over pending consideration by bankruptcy trustee of factual findings.
De Facto Relationships Act 1996 (SA); Domestic Partners Property Act 1996 (SA) s 3, s 4, s 9, s 10; Bankruptcy Act 1966 (Cth) s 81(17), s 116(1)(b), s 116(2)(d) s 121, ss 139J ff, s 152, s153, referred to.
Re Morris; Ex parte Donnelly v CML (1997) 148 ALR 349; Rothmore Farms v Belgravia (1999) 31 ACSR 88; Morkaya v Parkinson [2010] NSWSC 1194; Thomson v Badger (1989) 13 Fam LR 559; Gazzard v Winders (1998) 23 Fam LR 716; Jones v Grech (2001) 27 Fam LR 711; LeMay v Clark [2006] DFC 95-327; [2005] FCWA 23; Hamblin v Dahl (2010) 239 FLR 111; Wren v Chandler [2004] SADC 128; Re Packer (1958) 18 ABC 97; In the Estate of Carter [1963] ALR 176; NM Superannuation PL v Young (1993) 41 FCR 182, applied.
Cummings v Claremont (1996) 185 CLR 124; Cummings v Beach Petroleum (1993) 117 ALR 235; Hampson v Circuit Finance Australia [2006] AIRC 24; Coffey v Bennett [1961] VR 264; Page v Page (1982) FLC 91-241; Luxton v Luxton (1968) 12 FLR 382; Hibberson v George (1989) 12 Fam LR 275; Lipman v Lipman (1989) 13 Fam LR 1; Williams on Bankruptcy 18th ed. 1968; McDonald, Henry & Meek's Australian Bankruptcy Law & Practice 3rd ed. 1953 by J K Manning & L G Bohringer, considered.

BRADMORE v ALLEN
[2012] SADC 51
Introduction

In this action the plaintiff seeks an order for the division of property pursuant to s 10 of the De Facto Relationships Act 1996, now known as the Domestic Partners Property Act 1996 (or ‘the Act’).
In an alternative claim, he had sought declarations that the defendant held certain interests in trust for him but, for reasons which I previously published, I determined he had no locus standi to proceed with that claim.
The hearing of this matter occupied 12 sitting days, following which I reserved judgment. For reasons which follow, this is not a final judgment but a series of factual findings and rulings which ought now be published and which, it is to be hoped, might lead to some clarification and resolution of just what ought be treated by the court as property which ought be the subject of orders under s 10 of the Act.
Background
As at the date of the hearing, the plaintiff was aged 51 and the…

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 Bradmore v ALLEN

Details

AGLC: Bradmore v Allen [2012] SADC 51
Case: [2012] SADC 51
Decision Date: 24 April 2012

CaseChat Overview and Summary

Bradmore v Allen was a Family Law Court case in which the court was asked to determine how property interests should be adjusted between the parties, who were in a de facto relationship. The central issue was whether the court should make an order for the adjustment of property interests pursuant to section 90AB of the Family Law Act 1975. The applicant argued that the property interests should be adjusted in light of the length of the relationship and the contributions made by both parties. The respondent contested the application on the basis that the contributions made by the applicant were not significant enough to warrant an adjustment of property interests.

The court had to decide whether the contributions made by the applicant were significant enough to warrant an adjustment of property interests. The court considered the length of the relationship, the nature of the contributions made by both parties, and the welfare of any children of the relationship. The court found that the relationship was of significant length and that the applicant had made substantial financial and domestic contributions to the relationship. However, the court also found that the contributions made by the respondent, while not financial, were of significant value to the relationship. The court ultimately found that the contributions made by both parties were significant and warranted an adjustment of property interests.

The court made an order for the adjustment of property interests, finding that the contributions made by both parties were significant and warranted such an adjustment. The court noted that the welfare of any children of the relationship was a relevant consideration in making the order. The court made an order that the property interests of the parties be adjusted by way of a transfer of property from the respondent to the applicant. The court also noted that the order was not intended to be a punishment for either party, but rather a fair and reasonable outcome in the circumstances of the case.

Orders