Karpathiou v Clemente

Case [2008] SASC 316

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

KARPATHIOU v CLEMENTE

[2008] SASC 316

Judgment of The Full Court

(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice David)

19 November 2008

FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS - RELATIONSHIP

FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS - ADJUSTMENT OF PROPERTY INTERESTS - RELEVANT CONSIDERATIONS

Appeal against findings of trial Judge that a de facto relationship existed between appellant and respondent, that it was just and equitable that there be a division of property and against order for division of property – whether appellant and respondent lived together on a genuine domestic basis as husband and wife – whether trial Judge erred in accepting evidence of witnesses for respondent as credible and reliable – whether it was just and equitable that there be a division of property – whether trial Judge erred in failing to have regard to appellant’s substantial financial contribution to relationship.

Held, allowing the appeal:  Trial Judge’s acceptance of evidence of witnesses for respondent was inappropriate – respondent failed to establish on the balance of probabilities that he had lived with appellant on a genuine domestic basis as husband and wife – trial Judge’s finding of a de facto relationship cannot be sustained – trial Judge erred in failing to have regard to appellant’s substantial financial contribution to relationship – order for division of property was not just and equitable and was inappropriate.

De Facto Relationships Act 1996 (SA) s 3, s 9, s 10, s 11 and s 12; Domestic Partners Property Act 2007 (SA), referred to.
Fox v Percy (2003) 214 CLR 118; Hogg v Roberts (2003) 87 SASR 248, considered.

KARPATHIOU v CLEMENTE
[2008] SASC 316

Full Court:      Gray, Sulan and David JJ

GRAY J:

  1. This is an appeal against an order made pursuant to the De Facto Relationships Act 1996 (SA), following a trial in the District Court.

  2. Eleftheria Karpathiou, the defendant and appellant, and Christopher Paul Clemente, the plaintiff and respondent, commenced a relationship in the year 2000.  That relationship ended in October 2006.  There was a dispute between the parties as to whether their relationship developed into a de facto relationship within the meaning of the De Facto Relationships Act.  There was a further dispute, if in fact such a de facto relationship existed, as to what, if any, division of property should take place.

  3. The trial Judge concluded that a de facto relationship did in fact exist between March 2003 and October 2006.  The Judge reached the conclusion that it was just and equitable that there be a division of property, and ordered that Ms Karpathiou pay Mr Clemente $17,900.  Ms Karpathiou challenged both findings on this appeal.

    The Relevant Legislation

  4. The De Facto Relationships Act was amended in 2007, and renamed the Domestic Partners Property Act 2007 (SA), commencing on 1 June 2007.  The amending Act provided that its provisions did not apply to a de facto relationship that…

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AGLC
Karpathiou v Clemente [2008] SASC 316
Case
[2008] SASC 316
Decision Date

CaseChat Overview and Summary

The appeal in the case of Karpathiou v Clemente involves a dispute concerning the existence of a de facto relationship between the appellant, Ms Karpathiou, and the respondent, Mr Clemente. The matter also addresses the adjustment of property interests and the fairness of a division of property between the parties. The appeal was heard and determined by the Full Court of the Family Court of Australia, consisting of Gray, Sulan, and David JJ.

The central legal issues before the court were whether there was a de facto relationship between Ms Karpathiou and Mr Clemente, and if so, whether it was just and equitable to divide their property. A key issue was the credibility and reliability of the evidence presented by Mr Clemente’s witnesses, which the trial judge had accepted. Additionally, the court needed to determine whether the trial judge appropriately considered Ms Karpathiou's substantial financial contributions to the relationship in making his findings.

The court found that the trial judge's acceptance of Mr Clemente's witnesses' evidence was inappropriate and that Mr Clemente had not established on the balance of probabilities that he had lived with Ms Karpathiou on a genuine domestic basis as husband and wife. Consequently, the finding of a de facto relationship could not be sustained. The court also held that the trial judge erred in not adequately considering Ms Karpathiou's significant financial contributions to the relationship, leading to an unjust and inequitable division of property. The order for the division of property was deemed inappropriate, as it effectively allowed Mr Clemente to share in a property gifted to Ms Karpathiou before the relationship began. The court concluded that the order of the trial judge was neither just nor equitable, and that the appropriate course was to dismiss Mr Clemente's application for a division of property.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

There is nothing just and equitable about the order of the Judge. Assuming there to have been a de facto relationship, the Judge’s order fails to recognise the substantial equity held by Ms Karpathiou in the Cowandilla property, prior to the relationship commencing in March 2003. In substance, the order of the Judge allows Mr Clemente to share equally in a gift made some six months prior to the relationship with Ms Karpathiou commencing. The unfairness of such an approach is self-evident. Further, there is nothing just and equitable about the trial Judge rewarding Mr Clemente notwithstanding the lesser contribution that he made to the expenses incurred in the relationship. Despite the Judge’s finding that there was a de facto relationship in existence, it was not appropriate that there be any order as to the division of property. The appropriate order was that Mr Clemente’s application be dismissed. Conclusion I would allow the appeal. I would set aside the order of the trial Judge. I would, in lieu, order that Mr Clemente’s application be dismissed. SULAN J: I agree with the reasons of Gray J. I would allow the appeal. I agree with the orders proposed by Gray J. DAVID J: I agree with the reasons of Gray J and would allow the appeal. I also agree with the orders he proposes.

Ratio Decidendi

Legal Principle Established

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