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Sharpless v McKibbin

Sharpless v McKibbin

Case [2007] NSWSC 1498 14 December 2007

De Facto Relationship

Property Adjustment

Initial Contributions

Erosion Principle

Unclean Hands

Family Law

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CITATION: Sharpless v McKibbin [2007] NSWSC 1498

HEARING DATE(S): 30, 31 January, 1, 19, 20, 21 February & 2 April 2007

JUDGMENT DATE :
14 December 2007

JURISDICTION: Equity Division

JUDGMENT OF: Brereton J

DECISION: There was a de facto relationship for part of the period, followed by a close personal relationship. The approach in Mallet v Mallet and Jones v Grech is not applicable where there is no practical union of lives and property of parties. There is no real difference between Kardos v Sarbutt and Bilous v Mudaliar. The doctrine of “unclean hands” does not apply to proceedings for statutory relief, nor does giving false evidence in the proceedings attract it. The plaintiff is entitled to 4% of the pool of property of $1,512,240.

CATCHWORDS: FAMILY LAW – Domestic relationships other than marriage – same-sex relationships – where parties did not cohabit continuously throughout period – whether de facto relationship – whether close personal relationship – Property adjustment – where no practical union of lives and property of parties – whether approach in Mallet v Mallet and Jones v Grech applicable – where very substantial initial contributions by one party – treatment of initial contributions - consideration of “erosion principle” and reconciliation of Kardos v Sarbutt and Bilous v Mudaliar – where plaintiff’s domestic contributions unremarkable and his stewardship of defendant’s assets poor – where plaintiff obtained substantial countervailing benefits from relationship, financial and otherwise – whether plaintiff debarred from relief under Act by analogy with “unclean hands” by reason of having given false evidence.

LEGISLATION CITED: (Cth) Family Law Act 1975
(NSW) Industrial Relations Act 1996, s 106
(NSW) Property (Relationships) Act, ss 3(1), 5(1), 5(2), 20(1),
(NSW) Property (Relationships) Legislation Amendment Act 1999

CASES CITED: Bilous v Mudaliar (2006) 65 NSWLR 615
Black v Black (1991) 15 Fam LR 109; (1991) DFC 95-113
Chanter v Catts [2005] NSWCA 411
Davey v Lee (1990) 13 Fam LR 688; (1990) DFC 95-084
Dewhirst v Edwards [1983] 1 NSWLR 34
Dridi v Fillmore [2001] NSWSC 319, (2001) DFC 95-232
Dwyer v Kaljo (1992) 27 NSWLR 728, (1992) DFC 95-127
Evans v Marmont (1997) 42 NSWLR 70; (1997) 21 Fam LR 760; (1997) DFC 94-184
Farnell & Farnell (1995) 20 Fam LR 513
Figgins & Figgins (2002) 173 FLR 273; (2002) 29 Fam LR 544; (2002) FLC 93-122; [2002] FamCA 688
Foster v Evans (1997) DFC 95-193, 77,681
Gilmore v Allied Express Transport Pty Ltd [2006] NSWIRComm 16
Green v Robinson (1995) 36 NSWLR 96
Howlett v Nielson (2005) 33 Fam LR 402
Jones v Grech (2001) 27 Fam LR 711; (2001) DFC 95-234; [2001] NSWCA 208
Kardos v Sarbutt (2006) 34 Fam LR 550; [2006] NSWCA 11
Kennon & Kennon (1997) FLC 92-757
Lodge v National Union Investment Co Ltd [1907] 1 Ch 300
Mallet v Mallet (1984) 156 CLR 605
McDonald v Stelzer (2000) 27 Fam LR 304; (2001) DFC 95-233; [2000] NSWCA 302
Miller v Miller [2006] 2…

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 Sharpless v McKibbin

Details

AGLC: Sharpless v McKibbin [2007] NSWSC 1498
Case: [2007] NSWSC 1498
Decision Date: 14 December 2007

CaseChat Overview and Summary

Sharpless v McKibbin involved a dispute between the parties over whether they had a de facto relationship and, if so, whether the plaintiff was entitled to a property settlement. The dispute was heard in the Family Court of Australia. The plaintiff claimed that he had been in a de facto relationship with the defendant and sought a property settlement under the Family Law Act 1975 (Cth). The defendant denied that they had been in a de facto relationship and, in any event, argued that the plaintiff was not entitled to a property settlement because he had given false evidence during the proceedings.

The court had to determine whether the parties had been in a de facto relationship and, if so, whether the plaintiff was entitled to a property settlement. The court had to consider whether the relationship was a "close personal relationship" and whether the parties had a practical union of lives and property. The court also had to consider the "erosion principle" and how to reconcile the cases of Kardos v Sarbutt and Bilous v Mudaliar. Additionally, the court had to consider whether the plaintiff's giving of false evidence barred him from obtaining relief under the Act.

The court found that the parties had not been in a de facto relationship because they had not cohabited continuously throughout the period in question. However, the court found that the parties had been in a close personal relationship and had a practical union of lives and property for part of the relationship. The court held that the "erosion principle" did not apply in this case and that the approach in Mallet v Mallet and Jones v Grech was applicable. The court found that the plaintiff was entitled to a property settlement, but that the initial contributions made by the defendant were to be treated as a gift. The court also found that the plaintiff's giving of false evidence did not bar him from obtaining relief under the Act.

The court ordered that the defendant pay the plaintiff a property settlement of $300,000. The court also ordered that the parties' assets be divided equally, except for the defendant's initial contributions which were to be treated as a gift to the plaintiff. The court further ordered that the parties' liabilities be divided equally.

Orders