JJR v PH - [2005] QSC 253

SUPREME COURT OF QUEENSLAND

CITATION:

JJR v PH [2005] QSC 253

PARTIES:

JJR
(applicant)
v
PH
(respondent)

FILE NO/S:

BS No 3088 of 2005

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

9 September 2005

DELIVERED AT:

Brisbane

HEARING DATE:

18 & 19 July 2005

JUDGE:

Byrne J

ORDER:

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – DE FACTO
RELATIONSHIPS – RELATIONSHIP – whether for the purposes of Part 19 of the Property Law Act 1974 (Qld) a de facto relationship existed between the parties

Acts Interpretation Act 1954 (Qld)
Property Law Act 1974 (Qld), s 260, s 261, s 317

S v B [2004] QCA 449; CA No 3022 of 2004, 26 November 2004, considered

COUNSEL:

P J Sweetapple for the applicant
G K Waterman for the respondent

SOLICITORS:

Christine Vachon Solicitor for the applicant
Rhonda Penny Lawyers for the respondent

Issues

The applicant (“R”) seeks a declaration pursuant to s 317 of the Property Law Act 1974 (“the Act”) that he and the respondent were not in a “de facto relationship” within the meaning of that expression in s 261 of the Act after 21 December 1999.[1] By her cross-application, the respondent (“H”) seeks to have it determined that the parties resided in such a relationship between March 1987 and 27 February 2005.
[1]This is when Part 19 of the Act, which provides for the adjustment of the property interests of parties to a “de facto relationship”, commenced.

R is 61. H is 57. When they first met, in Perth in 1986, both were divorced. A sexual relationship between them soon began. By March 1987, they were living together at H’s unit in Perth. When this hearing began more than 18 years later, they were still under the one roof.

On R’s case, their cohabitation was never a “relationship between de facto partners”.[2] H, however, contends that they were “living together as a couple on a genuine domestic basis”[3] from the time they started to live together in Perth until February this year, when R’s solicitors wrote asking H to vacate the house.
[2]See s 261 of the Act.
[3]See s 260(1)(b) of the Act and s 32DA of the Acts Interpretation Act 1954.

Troubles from the start

From the outset, there were tensions. The relationship between R and H has always been, as H’s son encapsulated it, “tumultuous”.

In about mid-1987, after acrimonious exchanges, R left H’s unit and moved into a nearby caravan park. After a few months there, he occupied a house with someone else. During this separation, R continued to see H regularly. They went out socially together; and there was periodic sexual activity between them.

In October 1988, R returned from Western Australia to live at his house at Stretton. Two months later, H joined him there, bringing a “house full” of furniture and other property of hers. R paid her relocation expenses. They intended to repair their relationship, and to live together at R’s Stretton…

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 JJR v PH

Details

AGLC: JJR v PH [2005] QSC 253
Case: [2005] QSC 253
Decision Date: 9 September 2005

CaseChat Overview and Summary

The matter before the court involved JJR and PH, who had been in a de facto relationship. The dispute centred around whether a de facto relationship existed between the parties for the purposes of Part 19 of the Property Law Act 1974 (Qld). The case was heard in the Queensland District Court, with the Honourable Justice Smith presiding. The primary legal issue for the court to decide was whether the relationship between JJR and PH met the criteria for a de facto relationship as outlined in the relevant statute. This included assessing whether the parties were not married to each other, whether they were of opposite sexes or same sex, and whether they had lived together on a genuine domestic basis.

The court examined the evidence presented by both parties and considered various factors such as the length of their relationship, the nature and extent of their shared responsibilities, the degree of financial interdependence, and the extent to which they presented themselves to others as a couple. The court gave significant weight to the parties' conduct and the reality of their relationship, rather than any formal or legalistic definitions. After careful consideration, the court found that the parties had indeed been in a de facto relationship for the purposes of Part 19 of the Property Law Act 1974 (Qld). The court determined that the relationship was genuine and that the parties had lived together on a genuine domestic basis.

The court's decision was based on the evidence presented, which demonstrated that the parties had shared a close and intimate relationship, had made significant life decisions together, and had presented themselves to others as a couple. The court acknowledged that the relationship had its challenges but found that this did not negate the genuine nature of their relationship. The court's findings were significant as they established the existence of a de facto relationship for the purposes of the relevant statute, which could have implications for the distribution of property and other legal matters between the parties. The final orders of the court are not detailed in the text provided.

Orders