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F, BA v D, BJ

F, BA v D, BJ

Case [2010] SADC 92 9 July 2010

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District Court of South Australia
(Civil)
F, BA v D, BJ
[2010] SADC 92
Judgment of His Honour Judge Beazley (ex tempore)
9 July 2010
FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS
Domestic partnership of six years duration ending August 2008 – parties respectively had nominal assets at commencement of relationship save for superannuation entitlements – no children from relationship – house property purchased jointly in May 2006 – the defendant continued to reside in house from August 2008 to October 2009 without contributing to rent nor to mortgage instalments – defendant did not file a defence nor appear at the trial – parties remain in employment and are in good health – plaintiff acknowledges that the defendant entitled to 50% of the net proceeds of house property upon sale and after deduction of certain credits to the plaintiff.
DIVISION OF PROPERTY
Approach to property adjustment – evaluation of contributions – application of principles in section 11 of the Domestic Partners Property Act 1996 – sale of house property for the purpose of formulating orders as at the date of hearing – each party to retain such personal property presently in their possession – specifically the plaintiff may retain such furniture and effects in his possession together with the Ford BAXR6 motor vehicle – each party shall retain such monies standing to their respective credit in their individual bank and superannuation accounts.
Held: It is just and equitable that orders be made for the sale of the house property with adjustments to the net proceeds of the sale of the house property reflecting payments made or to be made by the plaintiff.
Those orders are that:
1.      The house property be sold.
2.      Each party notionally receive one half of the net proceeds of sale.
3.      The defendant be credited with the balance of one half of the net proceeds of sale after deducting from her account and crediting the plaintiff's account with the following sums:
3.1.    the sum of $5,112.30 in respect of the Visa card debt incurred by the defendant.
3.2.    the sum of $4,514.79 in respect of the Telstra debt, incurred by the defendant.
3.3.    the sum of $769.64 being one half of maintenance expenses incurred by the plaintff.
3.4.    the sum of $5,600 being one half of notional occupation rent, enjoyed by the defendant.
4.         The defendant to pay the plaintiff's costs of action to be agreed or taxed on a party/party basis.
Domestic Partners Property Act 1996 ss9, 10-11, referred to.
H v D (2005) 34 Fam LR 35; Hogg v Roberts (2003) 87 SASR 248; Arnold v Dalton (2002) 84 SASR 482; Bilous v Mudaliar (2006) NSWLR 615; Manns v Kennedy [2007] 37 Fam LR 489; Baker v Towle (2008) NSWCA 73; Karpathiou v Clemente [2008] SASC 316; M, DA v P, N [2008] SADC 169, considered.

F, BA v D, BJ
[2010] SADC 92
Introduction

This is an application brought by F, BA (“the…

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 F, BA v D, BJ

Details

AGLC: F, BA v D, BJ [2010] SADC 92
Case: [2010] SADC 92
Decision Date: 9 July 2010

CaseChat Overview and Summary

In the matter of F, BA v D, BJ, the court was tasked with determining the financial entitlements of the parties following the end of a six-year de facto relationship. The relationship began with both parties having minimal assets, aside from their superannuation entitlements. In May 2006, the couple jointly purchased a property, which became a central issue in the dispute. The relationship concluded in August 2008, after which the defendant remained in the house until October 2009 without contributing to rent or mortgage payments. The defendant neither filed a defence nor appeared at the trial. Both parties were employed and in good health at the time of the proceedings.

The primary legal issue before the court was to decide the extent of the financial entitlements of the defendant in relation to the jointly owned property. The court had to determine whether the defendant was entitled to a 50% share of the net proceeds from the sale of the property, after accounting for specific credits to which the plaintiff was entitled. The court needed to weigh the contributions made by both parties during the relationship, their respective entitlements, and the circumstances surrounding the post-relationship period.

The court considered the duration of the relationship, the contributions made by both parties, and the absence of any children from the relationship. The court acknowledged that the defendant had a claim to 50% of the net proceeds from the sale of the property, subject to certain deductions for credits owed to the plaintiff. The court found that the defendant's failure to file a defence or appear at the trial did not affect their entitlement to a share of the property proceeds, as the plaintiff had acknowledged this entitlement. The court determined that the defendant was entitled to 50% of the net proceeds of the property, after the specified credits were deducted.

The court ordered that the defendant was entitled to 50% of the net proceeds from the sale of the jointly owned property, after deducting the credits owed to the plaintiff. The court directed that these calculations be finalised and that the proceeds be distributed accordingly.

Orders