PY v CY

[2005] QCA 247

SUPREME COURT OF QUEENSLAND

CITATION:

PY v CY [2005] QCA 247

PARTIES:

PY
(plaintiff/respondent)
v
CY
(defendant/appellant)

FILE NO/S:

Appeal No 279 of 2005
DC No 135 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

15 July 2005

DELIVERED AT:

Brisbane

HEARING DATE:

13 July 2005

JUDGES:

de Jersey CJ, Williams and Jerrard JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Appeal against the District Court Judge’s declaration, that the appellant and respondent were in a de facto relationship from in or about September 1988 until 25 December 2000, dismissed

2.   Costs to be assessed

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – DE FACTO RELATIONSHIPS – LEGISLATION – OTHER JURISDICTIONS – where s 32DA(1) Acts Interpretation Act 1954 (Qld) defines “de facto partner” as “persons who are living together as a couple on a genuine domestic basis” – where the Act lists “common residence” as one circumstance which may be considered, but which is not conclusive – where appellant and respondent were living in the appellant’s house – where respondent moved south to care for her elderly parents who were suffering ill health – where appellant intended to move south with respondent once he sold his house and business – where appellant accepted de facto relationship existed before respondent moved, but contended from then the relationship changed in character – where evidence led by both parties as to nature of relationship – where primary Judge accepted evidence of respondent and rejected contrary evidence of appellant – whether primary Judge erred in making declaration that the appellant and respondent were in a de facto relationship after respondent moved south – whether primary Judge gave inadequate weight to circumstance that parties did not co-habit together after respondent moved south – whether primary Judge wrongly accepted respondent as a credible witness

Acts Interpretation Act 1954 (Qld), s 32DA(1), s 32DA(2), s 32DA(3), s 32DA(4)
Property Law Act 1974 (Qld), s 257, s 260, s 261, s 280, s 286, s 319

S v B [2004] QCA 449; Appeal No 3022 of 2004, 26 November 2004, cited

COUNSEL:

T L Kirk SC, with G Burridge, for the appellant
M W Sayers for the respondent

SOLICITORS:

Pippa Colman & Associates for the appellant
Rimmer Lawyers for the respondent

1. de JERSEY CJ: This is an appeal against a learned District Court Judge’s declaration that the appellant and respondent were in a de facto relationship from in or about September 1988 until 25 December 2000. The declaration was made under s 319 of the Property Law Act 1974 (Qld), in the context of the respondent’s application for a declaration that the appellant holds, on trust for her, a one half interest in the property registered in his name. The notice of appeal was drafted by the appellant personally. The ground pursued at the hearing of the appeal was different from the grounds in…