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Kemp v French

Kemp v French

Case [2010] NSWSC 971 25 August 2010

De Facto Relationships

Adjustment of Property Interests

Contributions

Non-Financial Contributions

Just and Equitable

Family Law

Property Law

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CITATION: Kemp v French [2010] NSWSC 971

HEARING DATE(S): 23 August 2010
24 August 2010
25 August 2010

JUDGMENT DATE :
25 August 2010

JUDGMENT OF: Hallen AsJ

DECISION: (a) Declare that the Plaintiff and the Defendant were living in a de facto relationship from in about June 2002 until about April 2005 and then from about October 2005 until about September 2007;
(b) Order the Defendant to pay to the Plaintiff $88,750;
(c) Parties to bring in short minutes to give effect to the reasons;
(d) Parties to argue costs.

CATCHWORDS: PROPERTY RELATIONSHIPS - de facto relationships - adjustment of property interests - s 20 Property (Relationships) Act 1984 (NSW) - when de facto relationship commenced and ended - contributions made by parties and by mother of the Defendant - evaluation of any non-financial contributions - whether adjustive orders just and equitable in all circumstances

LEGISLATION CITED: Evidence Act 1995
Family Law Act 1975 (Cth)
Property (Relationships) Act 1984

CATEGORY: Principal judgment

CASES CITED: Beattie v Reid [2002] NSWSC 1088
Beavan v Fallshaw (1992) 15 Fam L4 686
Bilous v Mudaliar [2006] NSWCA 38
Black v Black (1991) 15 Fam. LR 109
C v B [2007] 1 Qd R 212
Chanter v Catts [2005] NSWCA 411; (2005) 64 NSWLR 360
Cureton v Blackshaw Services Pty Limited [2002] NSWCA 187
Deves v Porter [2003] NSWSC 625
Dion v Rieser [2010] NSWSC 50
Evans v Marmont (1997) 42 NSWLR 70
Fletcher v Furnance [2008] NSWSC 132
Ghazal v Government Insurance Office of New South Wales (1992) 29 NSWLR 336
Henry v Ford (No 2) [2009] NSWSC 1254
Howlett v Neilson [2005] NSWCA 149
Jones v Dunkel (1959) 101 CLR 298
Kardos v Sarbutt [2006] NSWCA 11
M and M (1998) FamCA 42
McKone v Maretta (1999) DFC
Paino v Paino [2008] NSWCA 276
Payne v Parker [1976] 1 NSWLR 191
Powell v Supresencia [2003] NSWCA 195
Re Q (Damages for sexual assault) (1994) 18 Fam LR 442
Reid v George (1996)
Rose v Richards [2004] NSWSC 315
Ryan v Kalocsay [2010] NSWSC 620
Saric v Steward [2006]
Selmore v Bull [2005] NSWCA 365
Sullman v Sullman [2002] NSWSC 169

PARTIES: Stephen James Kemp
Selena Jayne French

FILE NUMBER(S): SC 2009/291590

COUNSEL: N Jackson
M Galvin

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HALLEN AsJ

25 AUGUST 2010

2009/291590 KEMP v FRENCH

JUDGMENT

This is an application brought by a man against his former de facto partner, seeking an adjustment of property interests. The claim, originally, included a trust claim as well, but the Plaintiff is no longer pursuing that claim.

2 The Family Law Act 1975 (Cth) was amended, with effect from 1 March 2009, applying to de facto relationships breaking down on, and after, that date, so as to confer on the Family Court of Australia, exclusive jurisdiction to hear, and determine, applications for adjustment of interests in property between persons who are, or have been, in a de facto relationship. In this case, since the…

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 Kemp v French

Details

AGLC: Kemp v French [2010] NSWSC 971
Case: [2010] NSWSC 971
Decision Date: 25 August 2010

CaseChat Overview and Summary

The parties involved in this case were Kemp and French, who were in a de facto relationship for approximately two years. The dispute centred on the adjustment of their property interests under the Property (Relationships) Act 1984 (NSW). The case was heard in the Supreme Court of New South Wales. The primary issue before the court was to determine the commencement and end dates of the de facto relationship and to assess the contributions made by both parties, as well as by the mother of the defendant, to their relationship. This assessment was necessary to determine if any adjustment of property interests was warranted.

The court was required to consider the contributions made by the parties, both financial and non-financial, in accordance with section 20 of the Act. This included evaluating the non-financial contributions made by the plaintiff to the relationship. The court had to decide whether the adjustment of property interests would be just and equitable in all circumstances, taking into account the contributions made by both parties and the defendant's mother. The court had to balance the contributions of each party and the length of the relationship in reaching its decision.

The court found that the de facto relationship commenced on a specific date and ended on another. It also determined that the plaintiff had made significant financial and non-financial contributions to the relationship, while the defendant's mother had also made some contributions. The court found that an adjustment of property interests was necessary to achieve a just and equitable outcome. It concluded that the contributions made by the plaintiff outweighed those made by the defendant and his mother. The court made orders for the adjustment of property interests to reflect the contributions made by each party during the relationship. The orders were designed to ensure a fair outcome for both parties, taking into account the length of the relationship and the contributions made by each.

Orders