Del Gallo v Frederiksen - [1999] NSWSC 737

CITATION: Del Gallo v Frederiksen [1999] NSWSC 737 revised - 31/08/99

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): 1017/1998

HEARING DATE(S): 31/05/99 and 01/06/99
Written submissions supplied on 16/06/99

JUDGMENT DATE:
23 July 1999

PARTIES :

Christine Del Gallo v Neil Lewis Frederiksen

JUDGMENT OF: Master Macready at 1

COUNSEL : D.J. Lloyd for the plaintiff
C.M. Simpson for the defendant

SOLICITORS: Beilby Poulden Costello for the plaintiff
Freda & John F. Newman for the defendant

CATCHWORDS: Family Law. Application under the Defacto Relationships Act for adjustment of property interests. Whether contributions made by a party prior to the commencement of the relationship can be taken into account. ; ; Held that such contributions cannot be taken into account.

CASES CITED: Roy v Sturgeon (1986) 11 NSWLR 454.
Evans v Marmont (1997) 42 NSWLR 70
Griffiths v Brodingham FamLR 822
Foster v Evans (1997) DFC 95-193

DECISION: Para 61

- 2 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER MACREADY
Friday 23 July 1999

1017/1998 CHRISTINE DEL GALLO v NEIL LEWIS FREDERIKSEN
JUDGMENT

1    MASTER: This is an application under the Defacto Relationships 1984 brought by the plaintiff for the adjustment of the parties’ property interests. There were no children of the relationship although the plaintiff had two children by a former marriage.
2    The parties are agreed that that they had a defacto relationship from late January 1993 until 30 January 1996. At that time they resided in the defendant’s house which had recently been reconstructed at North Curl Curl. The parties first met in September 1989 after which they began staying and sleeping at each others homes particularly on weekends. The plaintiff contends that the defacto relationship commenced in April 1990 when she says that the parties were living together four to five nights a week admittedly in two houses, namely, the plaintiff’s house at 66 Duncan Street, Maroubra and the defendant’s house at North Curl Curl.
3    The defendant denies there was a defacto relationship until January 1993. The matter is of some moment as the major part of the plaintiff’s contributions took place between early 1991 and January 1993 when the parties demolished the building on in North Curl Curl and built a new house which they occupied in January 1993.
4    In order to put the matter in perspective it is necessary to look at some of the chronology in the matter. The plaintiff was born in 1956 and is now aged 43 years. She has two children, Katie born 11 June 1981 and John born 13 August 1983. In April 1990 Katie would have been 8 years of age and John 6 years of age. Accordingly there is little possibility of either child giving appropriate evidence as to the disputed period of the defacto relationship given their ages.
5    In 1990 the parties commenced going out together and slept at each other’s home at weekends. In April 1990 the plaintiff says that a regular pattern of residence emerged in which she…

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 Del Gallo v Frederiksen

Details

AGLC: Del Gallo v Frederiksen [1999] NSWSC 737
Case: [1999] NSWSC 737
Decision Date: 23 July 1999

CaseChat Overview and Summary

Del Gallo v Frederiksen involved a dispute between the parties regarding the adjustment of property interests under the Defacto Relationships Act. The primary issue was whether contributions made by one party prior to the commencement of the defacto relationship could be considered in determining the equitable division of property. The court was tasked with interpreting the relevant provisions of the Act and applying them to the facts of the case. Specifically, the court needed to determine if the contributions made by the applicant before the relationship began could be taken into account when assessing the division of property.

The court held that contributions made by a party prior to the commencement of the defacto relationship cannot be considered in the adjustment of property interests. The reasoning was based on the statutory framework of the Defacto Relationships Act, which explicitly states that only contributions made during the relationship are to be taken into account. The court emphasised that the Act was designed to protect the financial interests of parties in defacto relationships, and to extend this protection to contributions made before the relationship would undermine the legislative intent. Consequently, the court concluded that the respondent's pre-relationship contributions could not be factored into the property division.

The court's decision was clear and unambiguous: pre-relationship contributions cannot be taken into account when adjusting property interests under the Defacto Relationships Act. This interpretation aligns with the statutory language and purpose of the Act, ensuring that only contributions made during the relationship are considered in property disputes. The court's findings provide clarity for future cases involving similar issues, reinforcing the legislative intent to protect the financial interests of parties within the scope of defacto relationships.

Orders