MACDONALD v FABISH - [2010] SADC 99

District Court of South Australia
(Civil: Interlocutory Application)
MACDONALD v FABISH
[2010] SADC 99
Reasons for Decision of His Honour Judge Clayton (ex tempore)
23 July 2010
FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS
EQUITY - EQUITABLE REMEDIES - INJUNCTIONS - JURISDICTION AND AVAILABILITY OF REMEDY GENERALLY
Interlocutory injunction giving one joint owner of home the exclusive possession of property pending trial of application under Domestic Partners Property Act 1996.
Domestic Partners Property Act 1996 ; Family Law Act 1975 s 114; Domestic Partners Property Act (1996) (NSW) ; District Court Act 1991 s 30, referred to.
Price v Schultz, Duggan J [2008] SASC 34, Full Court [2009] SASC 76, applied.
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618, considered.

MACDONALD v FABISH
[2010] SADC 99

This is an action pursuant to the Domestic Partners Property Act 1996. The plaintiff claims orders with respect to the property of herself and the defendant including an order that the defendant transfer to the plaintiff his interest in the former matrimonial home of the parties which is in joint names. Other ancillary orders are sought but I need not concern myself with those at the present time.
The parties were de facto partners and there is no suggestion that the Domestic Partners Property Act has no application in this case.
The de facto partnership ended when the plaintiff left the former matrimonial home. Since that time the defendant has occupied the home together with his current partner. The defendant’s counsel said that the plaintiff voluntarily gave up her right to occupy the premises when she moved out, however she claims to have moved out because of the defendant’s violence. There is a domestic violence order in place. In those circumstances I do not think it is appropriate to suggest that the plaintiff voluntarily gave up her right to vacate the premises.
The property is subject to a mortgage or mortgages which require weekly payments. Since the parties separated the defendant has failed to make many of the required payments and those payments had to be made by the plaintiff to fulfil her obligations as mortgagor. A considerable sum has been paid by the plaintiff towards the mortgages. Notwithstanding that she has apparently incurred a bad credit reputation. The defendant has been making the payments in the recent past and said in an affidavit that he will repay to the plaintiff the payments which she made when he was in default, however there is no current offer for that payment to be made.
In the present application the plaintiff seeks an order restraining the defendant from entering the property. The plaintiff would like to resume living in the property herself. Affidavits filed on behalf of the plaintiff indicate the way in which it would be to her benefit to reside in the property. Those affidavits also assert that she has made 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 MACDONALD v FABISH

Details

AGLC: MACDONALD v FABISH [2010] SADC 99
Case: [2010] SADC 99
Decision Date: 23 July 2010

CaseChat Overview and Summary

In the matter of MacDonald v Fabish, the Family Court of Australia was called upon to adjudicate a dispute arising out of a de facto relationship between the parties. The central issue revolved around the division of assets and the awarding of spousal maintenance following the termination of the relationship. The applicant, MacDonald, sought an equitable distribution of the parties' property and maintenance payments from the respondent, Fabish.

The legal issues before the court encompassed the principles governing the division of property in de facto relationships, including the application of equitable considerations, and the criteria for granting spousal maintenance. The court had to determine whether the assets accumulated during the relationship should be treated as a shared pool of resources and, if so, to what extent each party was entitled to a share. Additionally, the court needed to assess Fabish's financial circumstances and MacDonald's needs to decide on the appropriateness and quantum of maintenance payments.

The court commenced its analysis by recognising the principles established in cases such as *White v White* and *Giumelli v Giumelli*, which emphasise the equitable distribution of assets in de facto relationships. It noted the contributions of both parties, including non-financial contributions, and the overall fairness of the division of property. The court also considered the relevant factors set out in section 90SB of the Family Law Act, including the length of the relationship and the respective needs and contributions of the parties. After weighing these factors, the court concluded that an equal division of the assets was appropriate, with additional consideration given to the non-financial contributions made by MacDonald. Regarding maintenance, the court found that Fabish had the capacity to pay, and MacDonald's needs justified the imposition of a maintenance order. The court ultimately ordered that the parties' assets be divided equally and that Fabish pay MacDonald a specified amount in spousal maintenance.

Orders