D, N H v T, L E - [2015] SADC 147

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
D, N H v T, L E
[2015] SADC 147
Judgment of His Honour Judge Chivell
30 October 2015
FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS - ADJUSTMENT OF PROPERTY INTERESTS
Domestic partnership dissolved after over 20 years. Extension of time to bring the application granted. House property only asset under consideration – relevant factors taken into account and property divided according to established principles.
Domestic Partners Property Act 1996 (SA) s 3, s 9, s 10, s 11; Commonwealth Powers (De Facto Relationships) Act 2009 (SA); Law of Property Act 1936 (SA) s 69, s 70, referred to.
Cooper v Lees (2009) 267 LSJS 53; Hogg v Roberts (2003) 87 SASR 248; H v G [2005] SASC 344; Evans v Marmont (1997) 42 NSWLR 70; Ferris v Winslade (1998) 22 Fam LR 725, considered.

D, N H v T, L E
[2015] SADC 147

Mr D has made an application for division of property pursuant to s 10 of the Domestic Partners Property Act 1996 (SA) (‘DPPA’). Neither he nor Ms T, the defendant, was represented by counsel at the trial.
Application of the Domestic Partners Property Act
Section 9(1) of the DPPA allows a domestic partner to apply to a court for division of property after the domestic partnership ends. An application may only be made if the applicant or respondent is resident in South Australia when the application is made; the parties were resident in South Australia for the whole or a substantial part of the period of the relationship; and the domestic partnership existed for at least three years or there is a child of the domestic partnership.
A domestic partner includes a person who lives in a close personal relationship.[1] A close personal relationship is defined as ‘the relationship between 2 adult persons … who live together as a couple on a genuine domestic basis’. The note to the definition reads:
Two persons may live together as a couple on a genuine domestic basis whether or not a sexual relationship exists, or has ever existed, between them.
[1] s 3.
There is no doubt that Mr D and Ms T were domestic partners for more than three years. There are also two children of the relationship.
It is common ground that the relationship between Mr D and Ms T began in about 1986, the year they came to Australia from New Zealand, and ended prior to July 2010. Mr D said it ended in 2009, when he left the bedroom he shared with Ms T and moved to sleep in another room. Ms T argued that the relationship ended much earlier, in 2001 or 2002. She conceded that they continued to share a bed, albeit with pillows dividing them, until December 2009.[2]
[2] T 6.
The power to make laws concerning de facto relationships was referred by the South Australian Parliament to the Commonwealth Parliament by the Commonwealth Powers (De Facto Relationships) Act

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 D, N H v T, L E

Details

AGLC: D, N H v T, L E [2015] SADC 147
Case: [2015] SADC 147
Decision Date: 30 October 2015

CaseChat Overview and Summary

In the case of D, N H v T, L E, the dispute centred around the division of property between two former de facto partners, following the dissolution of their relationship that had endured for over two decades. The application for property settlement was filed after the relationship had ended, and the applicant sought an extension of time to bring the application. The Family Court of Australia was tasked with determining whether the extension should be granted and, if so, how the single asset in question – a house – should be divided between the parties.

The legal issues before the court encompassed whether the applicant's delay in bringing the property settlement application warranted an extension of time under the Family Law Act. Additionally, the court had to consider the applicable principles for dividing property between de facto partners, and the relevant factors to be taken into account in this particular case. These factors included the duration of the relationship, the contributions made by each party, and the circumstances surrounding the end of the relationship.

The court granted the extension of time, acknowledging the applicant's reasons for the delay and the potential impact on the fairness of the property division. In dividing the property, the court applied established principles and considered the duration of the relationship, the nature and extent of contributions by each party, and other relevant factors. The house, being the only asset, was ultimately divided in a manner that the court deemed just and equitable, taking into account all relevant considerations.

The court's final orders provided for the property to be divided between the parties according to the principles and factors outlined above, and the extension of time for the application was approved.

Orders