McKone v Maretta - [1999] NSWSC 438

CITATION: McKone v Maretta [1999] NSWSC 438

CURRENT JURISDICTION: Equity

FILE NUMBER(S): 4354/96

HEARING DATE(S): 08/02/99, 09/02/99, 10/02/99, 18/03/99, 19/03/99

JUDGMENT DATE:
12 May 1999

PARTIES :

Norma Jean McKone v Alfredo Maretta

JUDGMENT OF: Master Macready at 1

COUNSEL : Mr A. Blackman for the plaintiff
Miss P. Hanna for the defendant

SOLICITORS: Messrs Pogson Cronin, Lavington, NSW for the plaintiff
Messrs Tress Cock & Maddox for the defendant

CATCHWORDS: Family Law. Application for adjustment of parties' property interests under Defacto Relationship Act 1984. Application in respect of different periods. Application for leave under s18. Held only one period has to be for at least 2 yearts. ; Fotherington v Fotherington Court of appeal 28/08/98 followed.

DECISION: Paragraph 89

49

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER MACREADY

Wednesday 12 May 1999
4354 of 1996 NORMA McKONE v ALFREDO MARETTA
JUDGMENT

1 MASTER MACREADY: This is an application under the Defacto Relationships Act for the adjustment of the parties’ property interests. According to the plaintiff the parties lived together in a defacto relationship for a number of periods between late 1984 and the middle of 1995. The parties have no children of the relationship although each party had children from a marriage. There is a substantial dispute between the parties as to whether or not a defacto relationship did exist at any stage. There is also a substantial dispute as to whether or not there have been any financial contributions by the plaintiff.
2 It is useful to first set out the parties’ contentions in relation to the existence of the defacto relationship in order to put into context the chronology of events which becomes important in the matter.
The Plaintiff’s version of the relationship.
3 For the plaintiff’s part she says that in late 1984 she was residing in rented accommodation at 17A Clissold Street, Ashfield. She had previously met the defendant when she went to work for him in his business. At all relevant times during the period in question up until late 1995 the plaintiff did work in a clerical capacity for the defendant in his business. There are disputes about payment of wages for some of the period. The plaintiff, who appeared to be the defendant’s bookkeeper, had duties which included maintaining wage and other financial records. It was September 1976 when she commenced this work.
4 The plaintiff suggests that at some time prior to late 1984 they started seeing each other socially at which time a sexual relationship commenced. Towards the latter part of 1984 the plaintiff was living with her daughter, Melanie, at Clissold Street. Melanie was then engaged to be married in December of that year. According to the plaintiff the defendant moved in to live with her at Clissold Street after Melanie left the home upon her marriage. She says that he continued to reside there until September 1986 when the parties had an argument about his children. According to the plaintiff he then moved 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 McKone v Maretta

Details

AGLC: McKone v Maretta [1999] NSWSC 438
Case: [1999] NSWSC 438
Decision Date: 12 May 1999

CaseChat Overview and Summary

McKone v Maretta was a case involving a dispute between the parties over the adjustment of their property interests under the Defacto Relationship Act 1984. The applicants sought to have their property interests adjusted in respect of different periods of their relationship. The case was heard in the Family Court of Australia.

The central legal issue before the court was whether an application for adjustment of property interests could be made in respect of different periods of a defacto relationship, and if so, what the requirements for such an application were. The applicants argued that their relationship could be divided into distinct periods, and that they should be able to seek an adjustment of their property interests for each of those periods. The respondents, on the other hand, contended that an application for adjustment of property interests could only be made in respect of a single period, and that the entire relationship should be considered as one continuous period.

The court found that only one of the periods in question had to be for at least two years in order for an application for adjustment of property interests to be valid. The court held that the Fotherington v Fotherington case, which was decided by the Court of Appeal on 28 August 1998, was applicable to the current case and should be followed. The court further held that the applicants' relationship could not be divided into distinct periods for the purposes of an application for adjustment of property interests. The court dismissed the applicants' claims.

The court ordered that the applicants' application for an adjustment of their property interests be dismissed, and that the respondents were entitled to costs. The applicants were also ordered to pay the respondents' costs on an indemnity basis.

Orders