Chadwick v SVINGOS - [2009] SADC 65

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Application)
CHADWICK v SVINGOS
[2009] SADC 65
Judgment of His Honour Judge David Smith
12 June 2009
STATUTES
DE FACTO RELATIONSHIP
Preliminary point – whether there was in existence a de facto relationship within the meaning of the De Facto Relationships Act 1996 (SA) – discussion of what constitutes a de facto relationship – consideration of onus of proof - discussion of whether the required period of three years needs to be continuous or not - held following Wren v Chandler [2004] SADC 128 that periods of cohabitation can be aggregated and that the three year period required by s 9 of the said Act need not be continuous.
Held: that the plaintiff and the defendant were in a de facto relationship for no less than three years.
De Facto Relationships Act 1996 s 9, referred to.
D v McA (1986) 11 Fam LR 214; Roy v Sturgeon (1986) 11 NSWLR 454; Wren v Chandler [2004] SADC 128; Bozo v Krylyszn [2002] SADC 18; Briginshaw v Briginshaw (1938) 60 CLR 336, considered.

DAMAGES - GENERAL PRINCIPLES - EXEMPLARY, PUNITIVE AND AGGRAVATED DAMAGES
Action in tort for damages for a series of three assaults by the defendant upon the plaintiff who was his de facto spouse – discussion of principles upon which damages should be awarded for the respective assaults – discussion of whether, in addition to ordinary damages, aggravated and/or exemplary damages should be awarded.
District Court Act 1991 s 39, referred to.
Battiato v Lagana [1992] 2 Qd R 234 at 236; Lamb v Cotogno (1987) 164 CLR 1; Johnstone v Stewart [1968] SASR 142; Henry v Thompson [1989] 2 Qd R 412; XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448; Dibbins v Dibbins (1978) 80 LSJS 165; Thompson v Faraonio (1979) 24 ALR 1; Wheeler v Page & Harris (1982) 31 SASR 1; MBP (SA) Pty Ltd v Gogic (1990-91) 171 CLR 657, considered.

CHADWICK v SVINGOS
[2009] SADC 65
Introduction

The plaintiff in this action claims to have been the de facto partner of the defendant within the meaning of the De Facto Relationships Act 1996 (SA) (“the said Act”) so makes an application for a property adjustment order pursuant to s 9 of the said Act. She also claims damages for a series of assaults alleged to have been perpetrated upon her by the defendant. The defendant applied to have the question of ‘whether the relationship in this matter was a de facto relationship within the meaning of the Act’ determined as a preliminary point. On the 25^th September 2007, Master Bampton granted the application and referred this issue for determination.
My task, therefore, is to determine this preliminary issue. I will also decide the claims for damages for the alleged assaults.
Legal Requirements – Onus – De Facto Relationship
Section 3 of the said Act defines “de facto relationship” as…

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 Chadwick v SVINGOS

Details

AGLC: Chadwick v Svingos [2009] SADC 65
Case: [2009] SADC 65
Decision Date: 12 June 2009

CaseChat Overview and Summary

The case of Chadwick v SVINGOS involved a dispute over the existence of a de facto relationship for the purposes of the De Facto Relationships Act 1996 (SA). The court was required to determine whether the parties had been in a de facto relationship, and if so, for what period of time. The case was heard in the South Australian District Court.

The primary legal issue was whether the relationship between the parties qualified as a de facto relationship under the Act, and if the requisite three-year period of cohabitation was met. The court needed to consider the nature of the relationship and whether the periods of cohabitation could be aggregated to meet the statutory requirement. The onus of proof was also a matter of contention, as the court had to determine who bore the responsibility of proving the existence and duration of the relationship.

In its reasoning, the court referred to the decision in Wren v Chandler, where it was held that periods of cohabitation can be aggregated and that the three-year period required by section 9 of the Act need not be continuous. The court found that the relationship between the parties did indeed qualify as a de facto relationship and that the periods of cohabitation could be aggregated to satisfy the statutory requirement. The onus of proof was placed on the party alleging the existence of the de facto relationship. The court ultimately determined that the relationship met the three-year requirement, albeit not necessarily in a continuous period.

As a result, the court found in favour of the plaintiff, Chadwick, confirming the existence of a de facto relationship for the purposes of the Act. The court's decision provided clarity on the interpretation of the three-year period and the aggregation of periods of cohabitation, which will be of significance in future cases involving similar issues under the De Facto Relationships Act 1996 (SA).

Orders