Faulks v Cameron - [2004] NTSC 61

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PARTIES JUDITH JOY FAULKS v ANGUS JOHN CAMERON
TITLE OF COURT SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN
JURISDICTION DE FACTO RELATIONSHIPS ACT
FILE NUMBER 89/04 (20415362)
DELIVERED 11 November 2004
HEARING DATE 22 October 2004
REASONS OF Acting Master
CATCHWORDS
De facto relationships – adjustment of property interests – contribution to superannuation – De Facto Relationships Act 1991 (NT) ss 3, 18(1)(a), 45, 44(2) – separation agreement – course of correspondence – Electronic Transactions Act (NT), s9
CASES FOLLOWED
Green v Robinson (1995) 36 NSWLR 96
King v Kemp (1995) 127 FLR 279
Killick v Killick (1996) 21 Fam LR 331
CASES REFERRED TO
Dowrick v Sissons (1996) 20 Fam LR 466
Arnold v Dalton (2002) 84 SASR 482
Fiket v Linco (1998) 23 Fam LR 272
Evans v Marmont (1997) 42 NSWLR 70
Deans v Jones [2003] NTSC 117
Torrac Investments Pty Ltd v Australian National Airline Commission (1985) ANZ Conv R 82

REPRESENTATION
Solicitors:
Plaintiff Northern Territory Legal Aid Commission
Defendant Unrepresented
Judgment category classification
Judgment ID number Acting mas1104
Number of pages 18

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
AT DARWIN

No. 89 of 2004 (20415362)

BETWEEN:

JUDITH JOY FAULKS
Plaintiff
and

ANGUS JOHN CAMERON
Defendant

ACTING MASTER YOUNG: REASONS FOR DECISION

(Delivered: 11 November 2004)

[1] The plaintiff seeks an order for adjustment of property under Division 3 of Part 2 of the De Facto Relationships Act.

[2] On 3 August 2004 Master Coulehan made an order for substituted service on the defendant by service by pre-paid mail at the defendant's parents address and also by sending copies of the documents by e-mail to the defendant’s last known e-mail address. Service was effected in accordance with the order.

[3] The defendant did not file an appearance, appear at trial or otherwise participate in the proceedings. As will be seen, the evidence suggests that the defendant now resides overseas, possibly in Ireland, and does not wish to have anything to do with the proceeding or its subject matter.

[4] The plaintiff relied upon an affidavit for the bulk of her evidence-in-chief. The affidavit was deficient in important respects. It did not, for example, contain a comprehensive list of assets and liabilities. This was largely remedied by oral evidence in which the plaintiff referred to relevant financial resources such as superannuation and gave evidence about her income and the financial position of a partnership conducted by the parties. I am satisfied this deficiency was merely the result of oversight but in this type of proceeding it has been suggested that there is a duty to make full and frank disclosure of all relevant circumstances, independently of any order for discovery: Dowrick v Sissons (1996) 20 Fam LR 466 at 472.

Property and financial resources

[5] The principal asset of the parties is a house and land at Napier Road, Katherine. The parties also conducted a mango and…

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 Faulks v Cameron

Details

AGLC: Faulks v Cameron [2004] NTSC 061
Case: [2004] NTSC 61
Decision Date: 11/11/2004

CaseChat Overview and Summary

Judith Joy Faulks brought an action against Angus John Cameron under the De Facto Relationships Act 1991 (NT) seeking an adjustment of property interests. The primary asset of the parties was a property at Napier Road, Katherine, and the parties also had a partnership growing mangoes and citrus. The plaintiff argued that since the parties separated, she had made substantial financial and non-financial contributions to the partnership while the defendant had made no contribution. The defendant did not participate in the proceedings and was deemed to have abandoned the partnership. The court found that the plaintiff's contributions after December 2002 resulted in an extra 10% of the net value of the property and an additional 10% for non-financial contributions, resulting in the plaintiff receiving 60% and the defendant 40% of the net value of the assets. However, the court concluded that it was bound to give effect to a separation agreement between the parties. The court found that the email correspondence between the parties constituted a legally binding separation agreement, enforceable at common law, whereby the defendant intended for the plaintiff to have the entirety of the proceeds of sale of the property and to assign or transfer his interest to her. The court made orders for the sale of the property, the application of the net proceeds of sale, and the division of other assets and liabilities between the parties.

Orders