Giacceri v Fitsimmons - [2004] NSWSC 536

CITATION: Giacceri v Fitsimmons [2004] NSWSC 536

HEARING DATE(S): 15, 16, 17 June 2004
1 November 2004

JUDGMENT DATE:
17 December 2004

JURISDICTION:
Equity Division

JUDGMENT OF: Master Macready at 1

DECISION: Paragraph 101

CATCHWORDS: Family Law. Application for adjustment of property interests under s 20 of the Property (Relationships) Act 1984. Orders for adjustment. No matter of principle.

PARTIES :
Giacceri v Fitsimmons

FILE NUMBER(S): SC 3488 of 2002

COUNSEL: Mr P Cummings for plaintiff
Mr D.M. Loewenstein for defendant

SOLICITORS: Boyd Wooi Olsen Lawyers for plaintiff
Gillis Delaney Brown for defendant

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Master Macready

Thursday 23 December 2004

3488/02 Paul Vittorio Giaccari v Leanne Fitzsimmons

JUDGMENT

1 Master: This is an application for adjustment property interests under section 20 of the Property (Relationships) Act 1984 NSW. The parties lived together in a de facto relationship for a period of about eight years until they separated on 10 October 2000. The plaintiff puts the commencement of the relationship at 30 May 1992 when he says that the parties commenced cohabitation when the defendant and her children moved to live at 23 Amsdale Ave, Macquarie Hills. The defendant suggests that the relationship commenced in January 1991 when the plaintiff separated from his wife or, alternatively, in November 1991 when the purchase of the Amsdale Avenue property was completed.

2 The plaintiff and the defendant had previously been married prior to commencing their relationship. There were no children as a result of their relationship. The plaintiff was born on 6 June 1957 is now 46 years of age. He was formerly married to Jillian Sue Ace in 1980 and they separated in 1991. The plaintiff had two daughters, Rachael born 9 March 1984 and Sarah born 5 January 1989. Sarah lives with her mother and on occasions Rachael has lived with the parties as part of the household. This was from December 1996 until the parties separated.

3 The defendant had been married in 1981 and separated in 1987. She was divorced in 1990. There were two children of the marriage to her husband a Mr Maguire, Emma born on 20 September 1982 and Shaun born 16 August 1986. These children resided with the parties during the period of their relationship.

4 The plaintiff held a Diploma in Civil Engineering and for many years prior to 1991 he had worked for Allco Steel. The defendant had qualifications as an enrolled nurse have worked at Wallsend District hospital. During 1990 the plaintiff had incorporated a company Brentworth Holdings Pty Ltd (“Brentworth”) through which he intended to carry on business with a partner. Unfortunately his partner died and the plaintiff commenced the business after he resigned from Allco Steel on 20 February 1992. He worked with them as a consultant for a few months until he commenced business with his new company. The defendant gave up her work after the commencement of cohabitation and came to work for the plaintiff's…

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.

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Details

AGLC: Giacceri v Fitsimmons [2004] NSWSC 536
Case: [2004] NSWSC 536
Decision Date: 17 December 2004

CaseChat Overview and Summary

In the matter of Giacceri v Fitsimmons, the parties were involved in a dispute concerning the adjustment of property interests under section 20 of the Property (Relationships) Act 1984. The application was brought before the Family Court of Australia, which had to determine the equitable distribution of the couple's property following their separation. The primary focus of the case was to assess the contributions, both financial and non-financial, made by each party during their relationship and to determine the fair division of their assets.

The legal issues before the court included the interpretation and application of section 20 of the Property (Relationships) Act 1984, which provides the framework for adjusting property interests in the event of the breakdown of a de facto relationship. The court was required to consider the contributions made by each party to the relationship, including financial contributions, domestic and caring contributions, and non-financial contributions such as the care of children or the home. Additionally, the court had to evaluate the future needs and circumstances of each party to ensure a just and equitable outcome.

The court meticulously assessed the contributions of each party, taking into account the duration of the relationship, the age and health of the parties, and their respective earning capacities. It was determined that the contributions of each party were not equal, with one party making a greater financial contribution and the other party making significant domestic and caring contributions. The court found that it was not a matter of principle to divide the property equally and instead ordered an adjustment of property interests that reflected the unequal contributions and the future needs of the parties. The final orders ensured that the division of the assets was fair and equitable, taking into account the unique circumstances of the relationship and the contributions of each party.

Orders