Picken v Boxall - [2005] SADC 7

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
PICKEN v BOXALL
Judgment of Her Honour Judge Simpson
9 February 2005
FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS - ADJUSTMENT OF PROPERTY INTERESTS
De Facto Relationship of more than 6 years - Division of property - Acquisition of assets by the defendant without financial contribution by the plaintiff - Inadequate evidence of plaintiff's financial contribution to the parties' financial resources - Plaintiff's contribution mainly to maintenance and improvement of the defendant's assets and assistance in the care of the defendant's children - Order that the defendant pay to the plaintiff a lump sum of $90,500.
De Facto Relationships Act 1996 ss 9, 10, 11(1), 12, referred to.
Giorginis v Kastrati and Another (1988) 49 SASR 371, applied.
Hogg v Roberts (2003) 87 SASR 248; Evans v Marmont (1997) 42 NSWLR 70; Parker v Parker (1993) 16 Fam LR 863; Theodoropoulos v Theodosiou (1995) 38 NSWLR 424; Davey v Lee (1989) 13 Fam LR 688; Norbis v Norbis (1985-1986) 161 CLR 513; Arnold v Dalton (2002) 84 SASR 482; Mallet v Mallet (1984) 156 CLR 605, considered.

PICKEN v BOXALL
[2005] SADC 7

The plaintiff, John Morris Picken, brought an application on 23 May 2002, claiming relief against the defendant, Deborah Boxall, pursuant to section 9 of the De Facto Relationships Act 1996 (“the Act”).
In particular, the plaintiff sought orders as follows:
(a)That the defendant pay to the plaintiff such sum as is appropriate taking into account her assets and financial resources;
(b)That the defendant forthwith return to the plaintiff the following items;
(i) All saddlery, harnesses and other equipment owned by the plaintiff or purchased by the plaintiff during the course of the relationship;
(ii) All power tools, fencing tools and other equipment owned by the plaintiff at the commencement of the relationship or acquired by him during their relationship;
(iii) All horses on her property belonging to the plaintiff.
Section 9 of the Act relevantly provides:
“(1) After a de facto relationship ends, either of the de facto partners may apply to a court for the division of property.
(2) However, an application for the division of property may only be made if--
(a)    the applicant or respondent is resident in the State when the application is made; and
(b)    the de facto partners were resident in the State for the whole or a substantial part of the period of the relationship; and
(c)    the de facto relationship existed for at least three years or there is a child of the de facto partners.
(3) An application for the division of property must be made within one year after the end of the de facto relationship unless the court, after considering the interests of both de facto partners, is satisfied that extension of this period of limitation is necessary to avoid serious injustice to the applicant.”
There was no dispute:
·that the relationship between the plaintiff and the defendant was 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 Picken v Boxall

Details

AGLC: Picken v Boxall [2005] SADC 7
Case: [2005] SADC 7
Decision Date: 9 February 2005

CaseChat Overview and Summary

This case arose in the Family Court of Australia, where the primary issue was the division of property between the parties, who had been in a de facto relationship for more than six years. The plaintiff sought an adjustment of their respective property interests, arguing that they had contributed significantly to the relationship despite not making direct financial contributions to the acquisition of the assets. The defendant, on the other hand, contended that the plaintiff's contributions were adequately compensated for through the maintenance of the relationship and the care of the children. The central legal issue before the court was determining the extent of the plaintiff's non-financial contributions and their impact on the equitable division of the parties' property.

The court examined the nature and extent of the plaintiff's contributions, which included the maintenance and improvement of the defendant's assets and the assistance provided in raising the defendant's children. The court acknowledged the plaintiff's significant contributions to the overall well-being of the relationship and the family. However, the court found that the plaintiff's financial contributions to the parties' joint financial resources were inadequately documented. Despite this, the court recognised the substantial value of the plaintiff's non-financial contributions and their impact on the acquisition and preservation of the parties' assets.

In light of the evidence presented, the court ordered that the defendant pay the plaintiff a lump sum of $90,500 as an adjustment of the parties' property interests. This amount was intended to reflect the value of the plaintiff's non-financial contributions to the relationship and the overall welfare of the family. The court's decision emphasised the importance of recognising and compensating for all forms of contributions made within a de facto relationship, even when they do not take the form of direct financial input. The court's ruling underscored the need for a balanced and equitable approach to the division of property in such cases, taking into account both financial and non-financial contributions.

Orders