LAB v AWH - [2009] QSC 310

SUPREME COURT OF QUEENSLAND

CITATION:

LAB v AWH [2009] QSC 310

PARTIES:

LAB
(applicant)
v
AWH
(respondent)

FILE NO:

BS 1535 of 2008

DIVISION:

Trial Division

PROCEEDING:

Hearing

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

29 September 2009

DELIVERED AT:

Brisbane

HEARING DATE:

13-15 July 2009

JUDGE:

McMurdo J

ORDER:

It is declared that between December 1999 and July 2007 the applicant and respondent were in a de facto relationship for the purposes of Part 19 of the Property Law Act 1974 (Qld).

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – DE FACTO RELATIONSHIPS – RELATIONSHIP – where the parties had shared a common residence for over seven years – where the parties had shared a sexual relationship – where one party performed the housework and improved the house they shared – where the parties travelled and entertained together – where one party had made substantial provision for the other in his will – where the parties had joint medical insurance – where the parties held no property jointly – whether the parties were in a relationship for the purposes of pt 19 of the Property Law Act 1974 (Qld)

Acts Interpretation Act 1954 (Qld), s 32DA
Property Law Act 1974 (Qld), s 261

FO v HAF [2007] 2 Qd R 138, applied
KQ v HAE [2007] 2 QD R 32, applied
Thompson v Department of Social Welfare [1994] 2 NZLR 369, cited

COUNSEL:

R M Galloway for the applicant
A P J Collins for the respondent

SOLICITORS:

DK Law for the applicant
Fitz-Walker Lawyers for the respondent

The question is whether these two people were in a de facto relationship, as the applicant alleges and the respondent denies. This question has been ordered to be tried separately from the balance of the proceedings, in which the applicant seeks relief under pt 19 of the Property Law Act 1974 (Qld) (“the Act”).

Section 261 of the Act provides that a de facto relationship is the relationship between de facto partners. The term de facto partner is defined by s 32DA of the Acts Interpretation Act 1954 (Qld) as “1 of 2 persons who are living together as a couple on a genuine domestic basis but who are not married to each or related by family.” Section 32DA(2) provides that in deciding whether two persons are living together as a couple on a genuine domestic basis, any of their circumstances may be taken into account including, relevantly for the present case, the following:

“(a)     the nature and extent of their common residence;
(b)       the length of their relationship;
(c)       whether or not a sexual relationship exists or existed;
(d)the degree of financial dependence or interdependence, and any arrangement for financial support;
(e)their ownership, use and acquisition of property;
(f)the degree of mutual commitment to a shared life, including the care and support of each other;
(g)...
(h)the performance of household tasks;

(i)the reputation and public aspects of their relationship.”

No finding in relation to any circumstance is necessary for a…

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 LAB v AWH

Details

AGLC: LAB v AWH [2009] QSC 310
Case: [2009] QSC 310
Decision Date: 29 September 2009

CaseChat Overview and Summary

The case of LAB v AWH involved a dispute concerning the existence of a de facto relationship between the parties for the purposes of property division under Part 19 of the Property Law Act 1974 (Qld). The applicant, LAB, sought a declaration that a de facto relationship existed between them and the respondent, AWH, over a period spanning from December 1999 to July 2007. The central legal issue was whether the relationship met the criteria for a de facto relationship under the Act, considering the shared residence, sexual relationship, domestic responsibilities, financial contributions, and other factors that might indicate the nature of their relationship.

The court considered various factors to determine whether a de facto relationship existed. These factors included the duration of the relationship, the nature of the shared residence, the level of financial and domestic interdependence, and the extent of their social and public acknowledgment of the relationship. The court found that the parties shared a common residence for over seven years, had a sexual relationship, and engaged in joint activities such as travelling and entertaining together. Additionally, one party had made substantial provisions for the other in their will, and they held joint medical insurance, although they did not own any property jointly. The court concluded that these factors collectively demonstrated the presence of a de facto relationship.

Given the evidence and factors considered, the court held that the applicant and the respondent were in a de facto relationship from December 1999 to July 2007, as required under Part 19 of the Property Law Act 1974 (Qld). This decision recognised the shared responsibilities and mutual commitment between the parties during the period in question. The court's determination was based on the substantial evidence of their shared life and the various ways in which they supported each other, beyond just the legal formalities of property ownership.

Orders

Orders of the court

It is declared that between December 1999 and July 2007 the applicant and respondent were in a de facto relationship for the purposes of Part 19 of the Property Law Act 1974 (Qld).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	LAB v AWH [2009] QSC 310
PARTIES:	*LAB* (applicant) v AWH (respondent)
FILE NO:	BS 1535 of 2008
DIVISION:	Trial Division
PROCEEDING:	Hearing
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	29 September 2009
DELIVERED AT:	Brisbane
HEARING DATE:	13-15 July 2009
JUDGE:	McMurdo J
ORDER:	*It is declared that between December 1999 and July 2007 the applicant and respondent were in a de facto relationship for the purposes of Part 19 of the Property Law Act* 1974 (Qld).**
CATCHWORDS:	FAMILY LAW AND CHILD WELFARE – DE FACTO RELATIONSHIPS – RELATIONSHIP – where the parties had shared a common residence for over seven years – where the parties had shared a sexual relationship – where one party performed the housework and improved the house they shared – where the parties travelled and entertained together – where one party had made substantial provision for the other in his will – where the parties had joint medical insurance – where the parties held no property jointly – whether the parties were in a relationship for the purposes of pt 19 of the Property Law Act 1974 (Qld) Acts Interpretation Act 1954 (Qld), s 32DA Property Law Act 1974 (Qld), s 261 FO v HAF [2007] 2 Qd R 138, applied KQ v HAE [2007] 2 QD R 32, applied Thompson v Department of Social Welfare [1994] 2 NZLR 369, cited
COUNSEL:	R M Galloway for the applicant A P J Collins for the respondent
SOLICITORS:	DK Law for the applicant Fitz-Walker Lawyers for the respondent