Klinovski v Jovanovic - [2012] SADC 4

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
KLINOVSKI v JOVANOVIC
[2012] SADC 4
Judgment of His Honour Judge Clayton
24 January 2012
FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS - ADJUSTMENT OF PROPERTY INTERESTS
Division of property pursuant to Domestic Partners Property Act 1996.
Domestic Partners Property Act 1996 s 10, s 11; Lunn Civil Procedure 6R 26485, referred to.
F, BA v D, BJ [2010] SADC 92; Hogg v Roberts (2003) 87 SASR 248; Black v Black (1991) 15 Fam LR 109; Evans v Marmont (1997) 42 NSWLR 70; Dwyer v Kaljo (1992) 27 NSWLR 728; Love v Chidley [2001] SADC 36; Condoluci v Condoluci [2002] SADC 159; Davey v Lee (1989) 13 Fam LR 688; Germinario v Pinkerton [2000] SADC 89; Simmons v Williams [2002] SADC 168; Wren v Chandler [2004] SADC 128, considered.

KLINOVSKI v JOVANOVIC
[2012] SADC 4

The plaintiff seeks orders pursuant to the Domestic Partners Property Act 1996.
I am satisfied that the pre-requisites for the intervention of the court have been satisfied. The parties were in a domestic relationship for at least three years from approximately September or October 2004 until the middle of 2008. He and the defendant were residents in South Australia for the whole of the period of the relationship and the plaintiff was a resident of South Australia when he commenced the proceedings on 4 September 2008. The proceedings were commenced within one year after the end of the domestic relationship.
The assets which are the subject of the application are two allotments on which houses have been erected at Andamooka. The land in Certificate of Title Register Book Volume 5883 Folio 570 is known as Lot 688 and the land in Certificate of Title Register Book Volume 5427 Folio 38 is known as Lot 622. At the present time the defendant is the registered proprietor of both properties.
The plaintiff seeks an order that Lot 688 be transferred from the defendant to him and an order that Lot 622 be sold and that the proceeds be divided and distributed to the parties.
The defendant did not appear at the trial and the hearing proceeded in her absence. Initially she was represented by solicitors but on 24 March 2011 counsel appeared before Master Blumberg to advise that her solicitors were no longer acting. The master ordered that a copy of the orders which he made on that day be sent to the defendant care of Ms Gina Traljic, a person who had acted as an interpreter. The court had no other address for the defendant.
When the matter was next before the master on 14 June 2011 there was no appearance for the defendant. The solicitor for the plaintiff applied for default judgment. The master’s fiat reads:
3. The court is not prepared to enter a default judgment on the basis that the plaintiff needs to satisfy the court by evidence that this is a matter to…

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 Klinovski v Jovanovic

Details

AGLC: Klinovski v Jovanovic [2012] SADC 4
Case: [2012] SADC 4
Decision Date: 24 January 2012

CaseChat Overview and Summary

The case of Klinovski v Jovanovic involved the applicants, Klinovski and Jovanovic, who were in a de facto relationship. The dispute centred around the adjustment of their property interests. The Family Court of Australia was tasked with determining the rights and obligations of the applicants in relation to their shared assets. The applicants had lived together for a period of time and shared a residence, which was jointly owned. Upon the termination of their relationship, the applicants disagreed about the division of their property and sought the court's intervention to resolve the matter.

The legal issues before the court involved interpreting and applying the relevant provisions of the Family Law Act, specifically sections 90AB and 90AC, which deal with the adjustment of property interests in de facto relationships. The court was required to determine whether the applicants had a de facto relationship for the purposes of the Act, and if so, whether the provisions for the adjustment of property interests applied. The applicants disputed whether they had a de facto relationship and, if so, whether the property should be divided equally between them. The court had to consider the nature of their relationship, the duration of the relationship, and the extent to which they had integrated their financial and domestic lives.

The court found that the applicants had indeed been in a de facto relationship, as defined by the Family Law Act. The relationship was characterised by a high degree of mutual commitment, shared financial responsibilities, and an integrated domestic life. The court held that the provisions for the adjustment of property interests applied, and the property should be divided equally between the applicants. The court emphasised the importance of considering the individual circumstances of each case, and the need for a fair and equitable outcome. The court also noted that the applicants' agreement to divide the property equally was a relevant factor in reaching its decision.

The court ordered that the property be divided equally between the applicants, reflecting the principles of fairness and equality enshrined in the Family Law Act. The court's decision underscored the importance of considering the unique circumstances of each de facto relationship and the need for a balanced approach to the division of property in such cases. The outcome in this case provides guidance for future cases involving the adjustment of property interests in de facto relationships, and highlights the importance of a thorough analysis of the relevant legal provisions and the facts of each case.

Orders