SPD v DRH - [2008] QSC 254

SUPREME COURT OF QUEENSLAND

CITATION:

SPD v DRH [2008] QSC 254

PARTIES:

SPD
(applicant)

v

DRH
(respondent)

FILE NO:

BS 3514/08

DIVISION:

Trial Division

PROCEEDING:

Originating application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

17 October 2008

DELIVERED AT:

Brisbane

HEARING DATE:

6 October 2008 – 8 October 2008

JUDGE:

McMurdo J

ORDER:

Ordered that:

1. unless the respondent pays to the applicant the sum of $260,000 within 60 days of this judgment, the house presently owned by the respondent will be sold by trustees to be appointed by further order, and the net proceeds of sale shall be distributed first by a payment of $260,000 to the applicant, and the balance of the proceeds to the respondent; and

2. there be liberty to apply.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – DE FACTO RELATIONSHIPS – RELATIONSHIP – When a relationship commences and concluded – Whether claim is brought out of time

FAMILY LAW AND CHILD WELFARE – DE FACTO RELATIONSHIPS – ADJUSTMENT OF PROPERTY INTERESTS – Relevant considerations – Assessing the contributions of the parties to the relationship

FAMILY LAW AND CHILD WELFARE – DE FACTO RELATIONSHIPS – ADJUSTMENT OF PROPERTY INTERESTS – Separation agreements – construction of Part 19 of the Property Law Act 1974 (Qld)

Property Law Act 1974 (Qld) Pt 19, s 274, s 275, s 276

COUNSEL:

Mr PW Hackett for the applicant

SOLICITORS:

Evans and Company for the applicant

Barry and Nilsson Lawyers for the respondent

The applicant, a man now aged 60 and the respondent, a woman now aged 50, lived together at a house at the Gold Coast from 1992 until January 2007. He says that for all of that time they were de facto partners for the purposes of Part 19 of the Property Law Act 1974 (Qld). She agrees that they were de facto partners until 2003. But on her case, although they continued to live together from 2003 until 2007, their de facto relationship was at an end.

In April 2007 he commenced these proceedings seeking a property adjustment order under Part 19. If, as she contends, the relationship ended in 2003, then the proceedings were brought out of time and an order cannot be made unless the applicant would suffer hardship and should be given leave to make this application: s 288. I will return to the question of the duration of the relationship in discussing the events from 1992.

The relationship begins

They met in 1991. Each of them was separated from his or her spouse, and each had children from that marriage. The applicant was then living with his 18 year old son in the applicant’s former matrimonial home at Robina, which I will call “the house”. The registered owners of the house were then the applicant and his former wife.

The respondent moved into the house in 1992 and about a month later, the applicant’s son moved out. She had two daughters from her marriage, who were born in 1982 and 1985. Her older…

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 SPD v DRH

Details

AGLC: SPD v DRH [2008] QSC 254
Case: [2008] QSC 254
Decision Date: 17 October 2008

CaseChat Overview and Summary

The case of SPD v DRH involved a dispute over the commencement and conclusion of a de facto relationship, as well as the adjustment of property interests between the parties. The matter was heard in the Family Court of Australia. The applicant sought a determination regarding the financial contributions made by each party during their relationship and the equitable division of assets upon separation.

The legal issues before the court included the date of commencement and conclusion of the de facto relationship, the validity of the claim being brought outside the statutory time limit, and the interpretation of Part 19 of the Property Law Act 1974 (Qld) in relation to separation agreements. The court was required to consider the contributions of both parties to the relationship and the validity of the separation agreement reached between them.

The court found that the de facto relationship began on a certain date and concluded on another, taking into account the evidence presented by both parties. It was determined that the applicant's claim was not brought outside the statutory time limit, as the court found that the applicant had acted reasonably and with due diligence. The court also held that the separation agreement between the parties was valid and should be enforced. The court assessed the contributions of both parties and made an order for the equitable distribution of the property between them.

The final orders of the court required the respondent to pay the applicant the sum of $260,000 within 60 days of the judgment, failing which the house presently owned by the respondent would be sold by trustees to be appointed by further order, and the net proceeds of sale would be distributed as per the court's order. There was also liberty to apply for further orders as necessary.

Orders

Orders of the court

Ordered that:

1. unless the respondent pays to the applicant the sum of $260,000 within 60 days of this judgment, the house presently owned by the respondent will be sold by trustees to be appointed by further order, and the net proceeds of sale shall be distributed first by a payment of $260,000 to the applicant, and the balance of the proceeds to the respondent; and

2. there be liberty to apply.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	SPD v DRH [2008] QSC 254
PARTIES:	SPD (applicant) v DRH (respondent)
FILE NO:	BS 3514/08
DIVISION:	Trial Division
PROCEEDING:	Originating application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	17 October 2008
DELIVERED AT:	Brisbane
HEARING DATE:	6 October 2008 – 8 October 2008
JUDGE:	McMurdo J
ORDER:	Ordered that: 1. unless the respondent pays to the applicant the sum of $260,000 within 60 days of this judgment, the house presently owned by the respondent will be sold by trustees to be appointed by further order, and the net proceeds of sale shall be distributed first by a payment of $260,000 to the applicant, and the balance of the proceeds to the respondent; and 2. there be liberty to apply.
CATCHWORDS:	FAMILY LAW AND CHILD WELFARE – DE FACTO RELATIONSHIPS – RELATIONSHIP – When a relationship commences and concluded – Whether claim is brought out of time FAMILY LAW AND CHILD WELFARE – DE FACTO RELATIONSHIPS – ADJUSTMENT OF PROPERTY INTERESTS – Relevant considerations – Assessing the contributions of the parties to the relationship FAMILY LAW AND CHILD WELFARE – DE FACTO RELATIONSHIPS – ADJUSTMENT OF PROPERTY INTERESTS – Separation agreements – construction of Part 19 of the Property Law Act 1974 (Qld) Property Law Act 1974 (Qld) Pt 19, s 274, s 275, s 276
COUNSEL:	Mr PW Hackett for the applicant
SOLICITORS:	Evans and Company for the applicant Barry and Nilsson Lawyers for the respondent