FAMILY LAW - De facto relationships - Property adjustment order - Application for - When permitted - Evidence on - Commencement and determination of relationship - Contributions - Contributions made prior to commencement of relationship D
DECISION:
Appeal allowed - for orders (by majority) see paras. 99-102.
IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL
CA 40167/2000 ED 1598/99 ED 1954/99
POWELL JA
DAVIES AJA
IPP AJA
10 July 2001
JONES v. GRECH
JUDGMENT
1 POWELL JA: I regret to say that such difficulties as attend the present appeal have been brought about in no small measure by what I can only regard as the supreme disregard by the parties and their legal advisers - both at trial and on the hearing of the appeal - of significant provisions of the De facto Relationships Act 1984 ("the Act") as it was known at the time of the commencement of the proceedings, together with some fundamental principles applicable to this area of the law, which disregard appears to have led to a great deal of confusion of thought - on the part of the parties and their legal advisers - both at trial and on the hearing of the appeal - and on the part of Master McLaughlin - from whose decision this appeal has been brought - at trial and in his Judgment.
2 Although what I have written may be regarded by some as an overly harsh statement, it is to be recorded that the order which, in this appeal, the Appellant seeks to have set aside is one said to have been based upon the provisions of the Act, and that the first step towards establishing that, the Court has jurisdiction to make a property adjustment order involves establishing that at some time after the coming into operation of the Act, a de facto relationship had existed between the parties.
3 Despite the need for there to have been determined with some degree of precision whether there had been a relevant de facto relationship, or a series of relevant de facto relationships, between the parties, that was not done at trial. On the contrary, in the course of his Judgment, the Master was to write (RAB 50-51):
"7. At various times from late 1965 until August 1997 - that is, over a period of more than thirty-two years - the parties lived together…
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
Jones v Grech [2001] NSWCA 208
Case
[2001] NSWCA 208
Decision Date
CaseChat Overview and Summary
The case of *Jones v Grech* concerned an application for property adjustment orders within the context of a de facto relationship. The dispute centred on the commencement and determination of this relationship, and the extent to which contributions made by one party prior to the formal commencement of the relationship should be considered in the property adjustment. The matter came before the Court of Appeal.
The primary legal issues before the court were twofold. Firstly, the court was required to determine the precise date upon which the de facto relationship commenced for the purposes of the relevant legislation. Secondly, the court had to consider whether contributions made by a party to the acquisition, conservation, or improvement of property before the legally recognised commencement of the de facto relationship could be taken into account when making orders for the adjustment of property.
The majority of the Court of Appeal allowed the appeal, finding that the trial judge had erred in their approach to the commencement date of the de facto relationship and in their consideration of pre-relationship contributions. The court applied principles of statutory interpretation to the definition of a de facto relationship, emphasising the need for evidence to establish the existence of a de facto relationship at a particular point in time. The majority held that contributions made prior to the commencement of the relationship could, in certain circumstances, be relevant to the assessment of contributions made during the relationship, particularly where there was a clear continuity of conduct and intention. The specific orders made by the majority are detailed in paragraphs 99-102 of the judgment.
Orders
Orders of the court
Appeal allowed - for orders (by majority) see paras. 99-102.