S (plaintiff/respondent) v B (defendant/appellant)
FILE NO/S:
Appeal No 3022 of 2004 SC No 6082 of 2000
DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
26 November 2004
DELIVERED AT:
Brisbane
HEARING DATE:
5 August 2004
JUDGES:
McPherson and Williams JJA and Dutney J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:
1. Allow the appeal with costs
2. Set aside the orders made by the trial judge on 8 March 2004 and 6 April 2004 and in lieu thereof order that the action be dismissed
CATCHWORDS:
FAMILY LAW AND CHILD WELFARE – DE FACTO RELATIONSHIPS – LEGISLATION – where appellant and respondent lived in separate sections of one house – where the appellant provided financial support to the respondent – where the respondent provided domestic assistance to the appellant – where the appellant and respondent shared some meals together – where the appellant and respondent enjoyed a mutually exclusive sexual relationship – whether appellant and respondent were “living together on a genuine domestic basis” within the meaning of s 32DA of the Acts Interpretation Act 1954 (Qld)
FAMILY LAW AND CHILD WELFARE – DE FACTO RELATIONSHIPS – LEGISLATION – where Part 19 of the Property Law Act 1974 (Qld) came into effect on 21 December 1999 – where the appellant and respondent were communicating in writing only – where the appellant was not committed to a shared life with the respondent – where the appellant was not prepared to attend relationship counselling with the respondent – where correspondence between the parties reveals the appellant was no longer providing financial assistance to the respondent – whether the appellant and respondent were still “living together on a genuine domestic basis” within the meaning of s 32DA of the Acts Interpretation Act 1954 (Qld) as at 21 December 1999
A P J Collins for the appellant C J Forrest for the respondent
SOLICITORS:
Gall Standfield & Smith for the appellant Attwood Marshall for the respondent
McPHERSON JA: I have read the reasons of Dutney J in this appeal, and I agree with them. His Honour has dealt so completely with the applicable law and the facts of this case that it would simply risk confusion to add anything of my own to what he has said.
There is a temptation which must be resisted in cases like this to act on or apply, some kind of presumption or inference of continuance by…
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.
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Details
AGLC
S v B [2004] QCA 449
Case
[2004] QCA 449
Decision Date
CaseChat Overview and Summary
The appeal before the court involved the question of whether the appellant and respondent were considered to be living together on a genuine domestic basis under section 32DA of the Acts Interpretation Act 1954 (Qld) at the time the respondent made a claim for maintenance under Part 19 of the Property Law Act 1974 (Qld). The appellant and respondent had been living in separate sections of the same house, with the appellant providing financial support and the respondent providing domestic assistance. They shared some meals and had a mutually exclusive sexual relationship. The trial judge had found that they were living together on a genuine domestic basis, a finding the appellant contested on appeal.
The court was required to determine whether the relationship between the appellant and respondent met the criteria of living together on a genuine domestic basis as defined in section 32DA of the Acts Interpretation Act 1954 (Qld). The court had to consider the nature of their relationship, including the level of financial support, domestic assistance, and the extent of their shared living arrangements. Additionally, the court needed to assess whether the appellant and respondent were genuinely committed to a shared life, particularly in light of the changes in their communication and financial support after the commencement of Part 19 of the Property Law Act 1974 (Qld) on 21 December 1999.
The court found that the relationship between the appellant and respondent did not meet the statutory definition of living together on a genuine domestic basis. The evidence demonstrated that while they shared some domestic aspects of their lives, they did not have a shared commitment to a life together. The court emphasised that the relationship lacked the necessary mutual commitment and shared life that the legislation requires. The appellant's lack of willingness to attend relationship counselling and the cessation of financial support further indicated a lack of genuine commitment to a shared domestic life. Consequently, the court allowed the appeal, set aside the orders made by the trial judge, and dismissed the action with costs.
Orders
Orders of the court
1. Allow the appeal with costs
2. Set aside the orders made by the trial judge on 8 March 2004 and 6 April 2004 and in lieu thereof order that the action be dismissed