S v B

Case [2004] QCA 449


SUPREME COURT OF QUEENSLAND

CITATION:

S v B [2004] QCA 449

PARTIES:

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

Acts Interpretation Act 1954 (Qld), s 32DA
Property Law Act 1974 (Qld), s 257, s 258(1), s 260, s 261, s 341

Hibberson v George (1989) 12 Fam LR 725, considered and followed
Jones v Grech (2001) 27 Fam LR 711, cited
Mallet v Mallet (1984) 156 CLR 605, cited
Pavey v Pavey (1976) FLC ¶90-051, referred to
Wilson v Vine [2003] NSWSC 341, cited

COUNSEL:

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

  1. 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.

  1. 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…

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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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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