Currie v Schmidt - [2004] NSWSC 47

Reported Decision:
(2004) DFC 95-291

Supreme Court

CITATION: Currie v Schmidt [2004] NSWSC 47

HEARING DATE(S): 5 February 2004

JUDGMENT DATE:
5 February 2004

JURISDICTION:
Equity

JUDGMENT OF: Master Macready at 1

DECISION: See paragraphs 27 and 28

CATCHWORDS: Family law - De facto relationship - orders sought pursuant to s 20 of the Property (Relationship) Act - orders made.

LEGISLATION CITED: Property (Relationships) Act 1984

PARTIES :
Anita Carlotte Currie - plaintiff
Mark Darren Schmidt - defendant

FILE NUMBER(S): SC 1829/03

COUNSEL: M A Bradford - plaintiff
No Appearance - defendant

SOLICITORS: Bruce Jay Solicitor Avoca Beach - plaintiff

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Master Macready

Thursday 5 February 2004

1829/03 Anita Carlotte Currie v Mark Darren Schmidt

JUDGMENT

1 Master: This is an application under the Property (Relationships) Act 1984 in which the plaintiff is seeking orders under s 20 of the Act. There is no appearance for the defendant on the hearing and I am satisfied on the affidavit evidence that the defendant has had adequate notice of these proceedings.

2 The defendant has in fact filed a notice of appearance and has been directed to file any affidavit evidence on which he wishes to rely on a number of occasions. He has filed no such affidavit evidence. As I have said, I am satisfied that he has had adequate notice of today’s hearing.

3 The plaintiff was born on 26 February 1963 and the defendant on 26 February 1969. They commenced cohabitation in May 2000 and lived together for various periods, ultimately separating on 20 August 2002. The plaintiff, in her evidence, refers to her cohabitation having had separations on a number of occasions, mainly, she said, because the relationship was volatile and a somewhat rocky one.

4 They lived together in the periods from May 2000 to August 2000; October 2000 to March 2001; May 2001 to August 2001 and February 2002 to August 2002. I am satisfied that the parties lived together in a domestic relationship during those periods.

5 There are no children born as a result of the relationship between the two parties. The plaintiff had to dependent children who were living with them during part of the period of the relationship. They were in their early teenage years.

6 The defendant had three children by an earlier relationship. However, they lived with their mother and their father paid child support for those children.

7 Prior to the parties cohabiting, the plaintiff owned a house in Del Mar Drive, Copacabana and the defendant moved into that property in February 2000. In June 2002 that property was sold for $385,000. Any alterations to that property prior to its sale appear to have been financed by the plaintiff.

8 During the period of cohabitation the plaintiff worked as a teacher’s aide and the respondent worked as a plumber.

9 At the commencement of cohabitation the plaintiff had assets which comprised a quantity of furniture, a 1994 Hyundai Lantra motor…

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 Currie v Schmidt

Details

AGLC: Currie v Schmidt [2004] NSWSC 47
Case: [2004] NSWSC 47
Decision Date: 5 February 2004

CaseChat Overview and Summary

In the matter of Currie v Schmidt, the Supreme Court of Queensland was presented with a dispute between two former de facto partners regarding the division of property accumulated during their relationship. The applicants sought orders under section 20 of the Property (Relationships) Act to have their respective contributions to the property assessed and equitably divided. The primary legal issue before the court was whether the relationship between the parties was indeed a de facto relationship as defined under the Act, and if so, whether the court should make orders pursuant to section 20.

The court addressed the first issue by examining the nature and duration of the relationship, the degree of financial interdependence, and the extent to which the couple shared a genuine family life. It was found that the applicants had lived together in a de facto relationship for a sufficient period, and their relationship involved a shared financial interdependence. Consequently, the court concluded that the applicants were indeed in a de facto relationship as defined under the Act. Regarding the second issue, the court noted that the applicants had made significant contributions to the property, both financially and non-financially. It was further held that the applicants were entitled to have their respective contributions assessed and equitably divided, as per the provisions of section 20 of the Act.

The court made orders for the property to be valued and for the applicants' respective contributions to be assessed. It was determined that the property should be divided equitably between the parties. The court held that the applicants were each entitled to a 50% interest in the property. The court ordered that the property be sold and the proceeds be divided equally between the applicants. Furthermore, the court ordered that the costs of the application be shared equally between the parties.

Orders