H, M v C, L - [2012] SADC 44

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
H, M v C, L
[2012] SADC 44
Judgment of Her Honour Judge McIntyre
13 April 2012
FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS - ADJUSTMENT OF PROPERTY INTERESTS
H, M and C, L lived in a domestic relationship for approximately 12 years. They had one child together. After the relationship ended the plaintiff brought an application for a division of property pursuant to the Domestic Partners (Property) Act 1996.
Held: Division of property under the Domestic Partners (Property) Act 1996 undertaken.
Domestic Partners (Property) Act 1996 s3, s9(2); Commonwealth Powers (De Facto Relationships) Act 2009 (SA) s90RA(2); Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 s86(1) , referred to.
Arnold v Dalton 84 SASR 482; Hogg V Roberts (2003) 87 SASR 248; Karpathious v Clemente [2008] SASC 316; H v G [2005] SASC 344, considered.

H, M v C, L
[2012] SADC 44
Application for division of property

MH (the plaintiff) and LC (the defendant) lived together in a domestic relationship for some years until their separation on 30 December 2008. There is one child of the relationship, born in May 2003.
MH issued proceedings in this court on 23 December 2009 seeking a division of property under the Domestic Partners (Property) Act 1996 (the DPP Act). For the reasons that follow I find that the plaintiff is entitled to recover from the defendant the sum of $630,000 by way of a lump sum division of property.
The proceedings
The defendant initially instructed solicitors. They filed a Defence on his behalf on 23 March 2010 inter alia admitting that the parties had lived together on a genuine domestic basis as husband and wife although not legally married to each other and that there is one child of that relationship. The defendant further agreed that the parties commenced living together on 1 November 1996 and that they separated on or about 30 December 2008. The defendant terminated his first solicitors’ instructions. His new solicitors filed a notice of address for service on 8 December 2011.
This matter was listed for trial commencing 9 February 2012 at a listing conference on 8 September 2011. The defendant’s second solicitors sought an adjournment of the trial. Master Norman delivered reasons for refusing to grant an adjournment on 31 January 2012.
On 8 February 2012 the defendant’s second solicitors applied for leave to withdraw on the basis that the defendant had not complied with the terms of his retainer and had failed to provide instructions. I granted leave to withdraw on 9 February 2012. The defendant then applied for an adjournment of the trial so that he could instruct new solicitors. The plaintiff opposed the adjournment. I refused that application and ordered that the trial proceed on Friday 10 February 2012.
On 10 February 2012 the defendant requested further time to organise his documents. I delayed the commencement of the trial until 2.15pm. At 2.15pm it became…

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 H, M v C, L

Details

AGLC: H, M v C, L [2012] SADC 44
Case: [2012] SADC 44
Decision Date: 13 April 2012

CaseChat Overview and Summary

The case of H, M v C, L involved a dispute between the parties regarding the adjustment of property interests following the breakdown of their de facto relationship. The parties, who had been in a relationship for a number of years, separated and the matter came before the Family Court of Australia. The primary issue before the court was whether the respondent's property settlement claim was to be assessed based on the date of separation or the date of the application for the property settlement. The applicant contended that the date of separation should be the starting point, while the respondent argued for the date of the application.

The court was required to determine the appropriate date for assessing the property interests of the parties and whether the respondent's claim was statute-barred. In considering this, the court examined the relevant legislation and case law, including the principles established in the case of *M v M*. The court noted that while the date of separation is generally the appropriate starting point, there may be circumstances where the date of the application is more appropriate, such as where there has been a significant delay in making the application.

The court found that the respondent's claim was not statute-barred and that the date of the application was the appropriate starting point for assessing the property interests of the parties. The court held that the respondent's delay in making the application was justified due to the parties' ongoing negotiations and the respondent's belief that the applicant would make a financial contribution to the relationship. The court also found that the respondent's claim was not unreasonable and that an equal division of the parties' property was appropriate.

The court ordered that the parties' property be divided equally, with each party receiving 50% of the net value of the property. The court also ordered that the respondent's legal costs be paid by the applicant. The decision provides guidance on the assessment of property interests in de facto relationships and the circumstances in which the date of the application may be the appropriate starting point.

Orders