Pope v Hawkins - [2005] SADC 103

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
POPE v HAWKINS
Judgment of His Honour Judge David
15 August 2005
FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS
DE FACTO RELATIONS – DE FACTO RELATIONSHIPS ACT, 1996
De facto relationship – application for division of property under the De Facto Relationships Act - consideration of relevant matters under Section 11 – final determination of lump sum payment to be made in a just and equitable manner – “global” approach applied – financial contributions made by both parties to property of parties assessed – non financial contributions minimal – division of property 40 percent to the plaintiff and sixty percent to the defendant – agreed net value of property amounts to $214,500 – allowance for rent owed by defendant reflected in percentage distribution.
De Facto Relationships Act 1996 ss 3, 9, 10, 11 and 12, referred to.
Love v Chidley (2002) 219 LSJS 287; Roberts v Hogg [2003] SADC 92, applied.

POPE v HAWKINS
[2005] SADC 103

The plaintiff, Nicole Lee Pope and the defendant, James Hadley Hawkins separated in January 2003 after having lived in a defacto marital relationship continuously from July 1999. From May 1992 until July 1999 they had been in a serious relationship with each other interrupted by a number of separations. The exact details of that history are to a certain extent disputed. However there is no dispute that they cohabitated in a defacto marital relationship from July 1999 until January 2003. At the time of the separation they were living at a premises at 3 Hazelnut Court, Golden Grove. The defendant now lives at that premises and the plaintiff seeks a lump sum payment for her interest in that property and also an amount for rent. As the issues have been refined during the course of the trial the above property is the only asset about which a decision has to be made. Although there is no dispute by the defendant that he has to pay a lump sum to represent the plaintiff’s interests and also this has to reflect an amount for rent, it is the actual amount and the methodology which is in dispute.
The Law
The material provisions of the De Facto Relationship Act 1996 (“the SA Act”) are as follows:-
Power to make orders for division of property
10.(1) On an application for the division of property, the court may make orders it considers necessary to divide the property of either or both the de facto partners between them in a way that is just and equitable.
(2)For example, the court may make orders for –
(a)the transfer of property from one de facto partner to the other; or
(b)the sale of property and the division of the net proceeds between the de facto partners in proportions decided by the court; or
(c)the payment by one de facto partner of a lump sum to the other.
Matters for consideration by the court
11.(1) In deciding whether to make an order for…

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 Pope v Hawkins

Details

AGLC: Pope v Hawkins [2005] SADC 103
Case: [2005] SADC 103
Decision Date: 15 August 2005

CaseChat Overview and Summary

In the Family Court of Australia, the case of Pope v Hawkins dealt with a property division between former de facto partners. The plaintiff, Pope, sought a division of property under the De Facto Relationships Act 1996, following the termination of their relationship with the defendant, Hawkins. The primary dispute centred on the equitable distribution of the property held by the couple at the time of their separation.

The court was required to determine the extent of the financial and non-financial contributions made by each party during the relationship, and then decide the percentage distribution of the property in a just and equitable manner. The court considered the statutory requirements under Section 11 of the De Facto Relationships Act, which mandates that all relevant matters be taken into account when making a final determination of property division.

The court applied a "global" approach to the division of property, assessing the financial contributions made by both parties. It was found that the plaintiff had made a significant financial contribution to the property, while the non-financial contributions by both parties were minimal. The court determined that a division of 40 percent of the property to the plaintiff and 60 percent to the defendant was appropriate, given the agreed net value of the property amounting to $214,500. The court also made allowances for the rent owed by the defendant, which was reflected in the percentage distribution of the property.

The final orders of the court required the defendant to pay the plaintiff a lump sum of $85,800, representing 40 percent of the net value of the property. The court also noted that the defendant would be required to continue making payments to the plaintiff in respect of the rent owed. The decision in Pope v Hawkins provides guidance on the application of the De Facto Relationships Act in property division cases, and the importance of considering both financial and non-financial contributions when determining the equitable distribution of property between former de facto partners.

Orders