Lockett v Duckett - [2004] VSC 377

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 6643 of 2004

JACQUELINE MAREE LOCKETT	Plaintiff
v
ROBERT STEPHEN DUCKETT & ANOR	Defendants

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JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 September 2004
DATE OF JUDGMENT:	2 September 2004
CASE MAY BE CITED AS:	Lockett v Duckett & Anor
MEDIUM NEUTRAL CITATION:	[2004] VSC 377

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Domestic partners – adjustment of property interests – application to institute proceedings out of time – requirement of reasonable explanation for delay - relative hardship – Property Law Act 1958 ss.282 – application granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P. Davis	Richmond Bennison
For the Defendants	Mr R. Edmunds	Marshalls & Dent

HIS HONOUR:

By summons on originating motion both filed on 22 June 2004 the plaintiff, Jacqueline Maree Lockett seeks leave to apply to the Court for orders pursuant to Part IX of the Property Law Act 1985, and for leave so to apply out of time pursuant to s.282(2) of the Property Law Act 1958.

By s.279(1), a domestic partner may apply to a Court for an order under Division 2 of Part IX for the adjustment of property interests of another domestic partner. Division 2 comprehends orders for adjustment of property interests, Part IX being of property of domestic partners, and which was introduced by s.3 of the Property Law Amendment Act 1987.

Section 275(1) defines domestic partner and domestic relationship. The parties of this proceeding come within the definition of domestic partner.

By s.282(1) an application to a court must be made within two years after the day on which the relationship ended. By s.282(2) a court may grant leave for an application to be made after that time “if the court is satisfied that greater hardship would be caused to the partner applying if that leave were not granted than would be caused to the other partner if that leave were granted”.

The plaintiff and the defendant lived together as domestic partners from early 1987 until December 1998 according the plaintiff, and from September 1987 until an unstated time in 1997 according to the defendant. There are two children of the relationship, both girls, born respectively on 28 September 1992 and 2 August 1994. The children reside with their mother, the plaintiff, and have done so since the parties separated. The parties have never married.

The motion and summons in this matter were filed on 22 June 2004. Thus the application is some three and a half years out of time according to the plaintiff, and some five years out of time according to the defendant. The circumstances for that delay appear in the first affidavit of the plaintiff, of 30 June 2004.

In that affidavit the plaintiff set forth what she said was the history of the relationship. She stated that she worked, apart from in matrimonial leave, throughout the relationship and that all of the earnings from her employment were applied to the benefit of the family…

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 Lockett v Duckett

Details

AGLC: Lockett v Duckett [2004] VSC 377
Case: [2004] VSC 377
Decision Date: 2 September 2004

CaseChat Overview and Summary

Lockett v Duckett is a decision of the Family Court of Australia, which concerned an application by a domestic partner seeking an adjustment of property interests under the Property Law Act 1958. The case involved a de facto relationship between Lockett and Duckett, which lasted for a number of years before they separated. The dispute centred around the division of their property and whether Lockett should be granted an adjustment of property interests under the Act, despite the application being made out of time. The court was required to determine whether Lockett had a reasonable explanation for the delay in making the application, and whether the delay would cause relative hardship to Duckett if the application was allowed.

The legal issues before the court were whether Lockett had provided a reasonable explanation for the delay in making the application, and whether Duckett would suffer relative hardship if the application was allowed. The court noted that there was no statutory requirement for the applicant to provide a reasonable explanation for the delay, but that it was a relevant consideration in determining whether to grant the application. The court also considered whether Duckett would suffer relative hardship if the application was allowed, and whether that hardship would outweigh any hardship suffered by Lockett as a result of the delay. The court found that Lockett had provided a reasonable explanation for the delay, and that Duckett would not suffer relative hardship if the application was allowed.

The court ultimately granted Lockett's application to institute proceedings out of time. The court found that Lockett had provided a reasonable explanation for the delay, and that Duckett would not suffer relative hardship if the application was allowed. The court noted that Lockett had not deliberately delayed in making the application, and that the delay was due to a number of factors, including the breakdown of the relationship and Lockett's mental health issues. The court also found that Duckett had not suffered any significant detriment as a result of the delay, and that any hardship suffered by Duckett would be outweighed by the hardship suffered by Lockett if the application was not allowed. The court therefore granted Lockett's application, allowing her to seek an adjustment of property interests under the Property Law Act 1958.

Orders