M v P

Case [2008] SADC 169 15 December 2008

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DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
M, DA v P, N
[2008] SADC 169
Judgment of His Honour Judge Beazley
15 December 2008
FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS
De facto relationship of fourteen years duration ending 13 March 2004 - plaintiff ceased self-employment in fashion store - two children from relationship now aged respectively 13 and 16 years - plaintiff in full time role as homemaker and parent - both plaintiff and defendant previously married - defendant has a daughter from previous marriage - the defendant effectively exclusively the sole income earner during the relationship - defendant a well established restauranteur with significant assets prior to commencement of relationship - plaintiff effectively unable to re-enter the work force during currency of the relationship save for periods in which she earned modest sums - after termination of the relationship the plaintiff obtained a Diploma in Counselling in April 2007 - age of plaintiff and absence from the work force affecting her ability to successfully compete for counselling work - age and health of the defendant - defendant acknowledges that plaintiff entitled to a substantial lump sum.
DIVISION OF PROPERTY
Approach to property adjustment - evaluation of contributions – application of principles in section 11 of the De Facto Relationships Act 1996 – valuation of property – property to be valued for the purpose of formulating orders as at the date of hearing - "asset by asset" basis or "global" basis to the division of assets. As at the date of hearing the defendant was the beneficial owner of all of the relevant assets.
Held: It is just and equitable that orders be made adjusting the property of the defendant in favour of the plaintiff. Those orders are that the defendant do:
1. Pay to the plaintiff a lump sum of $650,000.
2. Transfer the ownership of the Honda CRV vehicle presently in the possession of the plaintiff.
3. Cause the company to transfer the sum of $6,270 standing to the credit of the plaintiff in its Superannuation Fund to a Superannuation Fund to be nominated by the plaintiff.
De Facto Relationships Act 1996 ss9, 10, 11, 12, referred to.
H v D (2005) 34 Fam LR 35; Hogg v Roberts (2003) 87 SASR 248; Arnold v Dalton (2002) 84 SASR 482; Bilous v Mudaliar (2006) 65 NSWLR 615; Manns v Kennedy [2007] 37 Fam LR 489; Baker v Towle (2008) NSWCA 73; Karpathiou v Clemente [2008] SASC 316; Norbis v Norbis (1986) 161 CLR 513; Kardos v Sarbutt (2006) 34 Fam LR 550; Paino v Paino [2008] NSWLR 276; Hayes v Marquis [2008] NSWCA 10; Mallett v Mallett (1984) 156 CLR 605, considered.

EVIDENCE
Expert valuers gave evidence as to the market value of business assets. That evidence highly relevant even if party does not intend to sell the assets. Query whether valuation methods which have been developed for commercial purposes appropriate for the purpose of determining whether it is…

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 M v P

Details

AGLC: M v P [2008] SADC 169
Case: [2008] SADC 169
Decision Date: 15 December 2008

CaseChat Overview and Summary

The plaintiff and defendant were in a de facto relationship for fourteen years, ending on 13 March 2004. The plaintiff, who had ceased self-employment in a fashion store, was a full-time homemaker and parent to two children from the relationship, aged 13 and 16. The defendant was the sole income earner during the relationship and had significant assets prior to the relationship. The court was tasked with determining financial entitlements following the termination of the relationship. The central legal issue was whether the plaintiff was entitled to a substantial lump sum from the defendant's assets, given the length of the relationship, her role as a homemaker, and her inability to re-enter the workforce during the relationship. The court acknowledged the defendant's admission that the plaintiff was entitled to a significant lump sum.

The court considered the duration and nature of the relationship, the contributions made by each party, and the circumstances surrounding the termination of the relationship. It was noted that the plaintiff had effectively been unable to re-enter the workforce during the relationship, except for brief periods in which she earned modest sums. The court also considered the plaintiff's efforts to gain further qualifications post-separation, despite her age and health affecting her ability to secure employment in the counselling field. The age and health of the defendant were also taken into account, as he was a well-established restauranteur with significant assets prior to the relationship.

The court ruled that the plaintiff was indeed entitled to a substantial lump sum from the defendant's assets, acknowledging the length of the relationship, the plaintiff's role as a homemaker, and her inability to re-enter the workforce during the relationship. The court's decision recognised the contributions made by the plaintiff to the relationship, despite her limited financial contributions, and the impact of her age and health on her ability to secure employment post-separation. The court ordered the defendant to pay the plaintiff a substantial lump sum, reflecting the circumstances of the case.

Orders