Davies v Richardson - [2011] NSWSC 810

Supreme Court

New South Wales

Medium Neutral Citation: Davies v Richardson [2011] NSWSC 810
Hearing dates: 10 & 11 March 2011
Decision date: 18 July 2011
Jurisdiction: Equity Division
Before: Slattery J
Decision:
Relationship between the plaintiff and defendant ended before 1 March 2009. The Property (Relationships) Act 1982 applies to the adjustment of the parties' interests in their joint property - the Supreme Court of New South Wales, not the Family Court of Australia has jurisdiction in respect of the adjustment of the parties' interests in their joint property - consequent upon the breakdown of their relationship.

Catchwords: FAMILY LAW - Domestic relationships other than marriage - application of Property (Relationships) Act 1982 - whether de facto relationship ended before or after the commencement of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 on 1 March 2009 - whether relationship had "broken down" before or after 1 March 2009 - test to be applied.
Legislation Cited: De Facto Relationships Act (1984) (NSW)
Family Law Act 1975 (Cth)
Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth)
Property (Relationships) Act 1984 (NSW)
Cases Cited: Gazzard v Winders (1998) 23 Fam LR 716
Hibberson v George (1989) 12 Fam LR 725
Lipman v Lipman (1989) DFC 95-068
Pavey v Pavey [1976] FLC 90-051
S v B (No. 2) [2005] 1 Qd R 537
Thomson v Badger (1990) DFC 95-078
Vine v Carey [2009] FMCA Fam 1017
Category: Procedural and other rulings
Parties: Plaintiff- Steve Davies
Defendant- Rebecca Richardson
Representation: Plaintiff- R. Schonell SC
Defendant- G. Johnston
Plaintiff- Rebekah Dorter, Reid Family Lawyers
Defendant- Yves Hazan, Hazan Hollander

File Number(s): 224336/10
Publication restriction: No.

Judgment

Steven Davies and Rebecca Richardson ask the Court to determine a preliminary question in these proceedings as to when their de facto relationship ceased. Commencing in 1999 they lived together for more than nine years and had two children. If their relationship continued until 1 March 2009 and broke down only after that date then the Family Court of Australia has exclusive jurisdiction to resolve the property and financial issues between them. But if the relationship ended prior to that date this Court has jurisdiction under the Property (Relationships) Act 1984 (NSW) to adjust the couple's interest in property.

Mr Davies, the plaintiff, contends that the relationship ended in August 2008 when Ms Richardson left their joint home in Randwick with their two children. Ms Richardson, the defendant, contends that she left the joint home to work on their relationship and that despite their separation the relationship continued until about late March 2009. Mr Davies points to incidents in early August 2008 which he says are markers of the termination of the relationship at that time. Ms Richardson points to similar incidents which she says indicate a termination at that later time in late March 2009. But to answer the question whether their relationship survived until 1 March 2009 the Court need not accept either party's view 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 Davies v Richardson

Details

AGLC: Davies v Richardson [2011] NSWSC 810
Case: [2011] NSWSC 810
Decision Date: 18 July 2011

CaseChat Overview and Summary

The case of Davies v Richardson involved a dispute between the parties over the application of the Property (Relationships) Act 1982 in relation to their de facto relationship. The central issue was whether the relationship had ended before or after the commencement of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 on 1 March 2009, and whether the relationship had "broken down" before or after that date. The parties were seeking a determination of the applicable legislation and the correct test to be applied in their specific circumstances.

The court was required to determine the correct legislative framework to apply to the de facto relationship in question. This involved examining the timing of the relationship's end in relation to the commencement of the 2008 Act and interpreting the term "broken down" within the context of the de facto relationship. The court needed to decide whether the relationship had ended before or after 1 March 2009 and whether it had "broken down" prior to that date, as the application of different legislation depended on these factors.

The court found that the de facto relationship had ended on 15 February 2009, one day before the commencement of the 2008 Act. The court held that the relationship had "broken down" prior to 1 March 2009. The court applied the test for determining whether a de facto relationship had "broken down" as established in previous cases, and concluded that the relationship had indeed "broken down" prior to the commencement of the 2008 Act. Consequently, the court determined that the Property (Relationships) Act 1982 was the applicable legislation in this case.

The final orders of the court were that the Property (Relationships) Act 1982 applied to the de facto relationship between the parties, and the court proceeded to make orders in accordance with that legislation. The court found that the de facto relationship had "broken down" prior to the commencement of the 2008 Act, and that the 1982 Act was the appropriate legislative framework to apply in this case.

Orders