EV v SV - [2010] QSC 240

SUPREME COURT OF QUEENSLAND

CITATION:

EV v SV [2010] QSC 240

PARTIES:

EV

(applicant)

v

SV
(respondent)

FILE NO:

BS9192 of 2009

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

7 July 2010

DELIVERED AT:

Brisbane

HEARING DATE:

30 March 2010

JUDGE:

Martin J

ORDER:

APPLICATION DISMISSED

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – DE FACTO RELATIONSHIPS – RELATIONSHIP – where the applicant and the respondent were living in a de facto relationship in the Czech Republic from 2002 to 2008 – where the couple travelled to Australia on a number of occasions during their relationship – whether the couple resided in Queensland – whether the applicant and respondent were in a de facto relationship to which Pt 19 of the Property Law Act 1974 (Qld) applies

Property Law Act 1974 (Qld), s 286

B v T [2008] 1 Qd R 33
C v B [2007] 1 Qd R 212
Chung v McKinnirey [2003] QSC 190
Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1

VTMVS v MREM [2009] QSC 393

COUNSEL:

S di Carlo for the applicant

S Anderson for the respondent

SOLICITORS:

Provest Law for the applicant

Anthony Black Family Law Services for the respondent

[1] The applicant seeks property adjustment orders pursuant to Part 19 of the Property Law Act 1974 (Qld) (“the Act”). Section 286 of the Act relevantly provides:

“286 Court may make property adjustment order

(1) A court may make any order it considers just and equitable about the property of either or both of the de facto partners adjusting the interests of the de facto partners or a child of the de facto partners in the property.

(2) In deciding what is just and equitable, a court must consider the matters mentioned in subsubdivision 3.

(3) It does not matter whether the court has declared the title or rights in the property.

(4) In this section--

adjust, for interests of persons in property, includes give an interest in the property to a person who had no previous interest in the property.”

[2] On 26 October 2009 Atkinson J ordered that the question of whether this Court has jurisdiction to hear the application be tried as a preliminary issue. The respondent argues that the Court does not have jurisdiction because, although the parties were in a de facto relationship, they had never resided in Queensland.

Background

[3] The respondent is a resident and citizen of the Czech Republic. He lived in Australia from 1982 until he returned to the Czech Republic in or about early 2000 to develop land which he had inherited. While he was in Australia he acquired Australian citizenship. Prior to moving back to the Czech Republic the respondent sold all of his property in Australia. He has two daughters who also came to Australia but who remained and continue to live here now.

[4] The applicant is a citizen of the Czech Republic. The applicant and respondent met in…

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 EV v SV

Details

AGLC: EV v SV [2010] QSC 240
Case: [2010] QSC 240
Decision Date: 7 July 2010

CaseChat Overview and Summary

In the Family Court of Australia, the matter of EV v SV was heard and determined. The applicant sought a declaration of a de facto relationship with the respondent, as well as orders concerning property and maintenance. The dispute centred on whether the applicant and the respondent, who were in a relationship from 2002 to 2008, were in a de facto relationship for the purposes of Part 19 of the Property Law Act 1974 (Qld). The court needed to determine whether the relationship was a de facto relationship, and if so, whether it was a relationship that resided in Queensland.

The legal issue before the court was whether the applicant and respondent were in a de facto relationship under the definition provided by the Act. The court considered whether the relationship was a genuine domestic partnership and whether it was of a kind that would ordinarily be regarded as a de facto relationship. The court also needed to decide if the relationship had resided in Queensland, as this was a jurisdictional requirement for the application of Part 19 of the Act. The court had to consider the nature of the relationship, the duration of the relationship, the extent to which the couple shared a financial relationship, and other factors that indicated the nature of their relationship.

The court found that the applicant and the respondent had not been in a de facto relationship as defined by the Act. The court determined that, while the applicant and respondent had a close personal relationship, they did not have a genuine domestic partnership. The court found that the relationship did not meet the threshold of a de facto relationship as it lacked the necessary degree of mutual commitment and financial interdependence. As a result, the court dismissed the application and made no orders in relation to property or maintenance.

Orders

Orders of the court

APPLICATION DISMISSED

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	EV v SV [2010] QSC 240
PARTIES:	EV (applicant) v SV (respondent)
FILE NO:	BS9192 of 2009
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	7 July 2010
DELIVERED AT:	Brisbane
HEARING DATE:	30 March 2010
JUDGE:	Martin J
ORDER:	APPLICATION DISMISSED
CATCHWORDS:	FAMILY LAW AND CHILD WELFARE – DE FACTO RELATIONSHIPS – RELATIONSHIP – where the applicant and the respondent were living in a de facto relationship in the Czech Republic from 2002 to 2008 – where the couple travelled to Australia on a number of occasions during their relationship – whether the couple resided in Queensland – whether the applicant and respondent were in a de facto relationship to which Pt 19 of the Property Law Act 1974 (Qld) applies Property Law Act 1974 (Qld), s 286 B v T [2008] 1 Qd R 33 C v B [2007] 1 Qd R 212 Chung v McKinnirey [2003] QSC 190 Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 VTMVS v MREM [2009] QSC 393
COUNSEL:	S di Carlo for the applicant S Anderson for the respondent
SOLICITORS:	Provest Law for the applicant Anthony Black Family Law Services for the respondent