Penelope Ann Sullman (plaintiff; cross-defendant) Michael John Sullman (defendant; cross-claimant)
JUDGMENT OF:
Campbell J
COUNSEL :
D E Grieve QC (plaintiff; cross-defendant) R C Lethbridge SC; with N Jackson (defendant; cross-claimant)
SOLICITORS:
M C Griffith & Co (plaintiff; cross-defendant) Hunt & Hunt (defendant; cross-claimant)
CATCHWORDS:
FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS - construction of section 20 Property (Relationships) Act 1984 application of transitional provisions for 1999 amendments - whether contributions after end of relationship can be taken into account - whether financial contributions can be taken into account under section 20(1)(b) - meaning of "just and equitable" - EVIDENCE - no Jones v Dunkell inference available where witness not called is a solicitor and solicitor giving evidence would involve waiver of legal professional privilege - EVIDENCE - effect of failure to cross-examine - PERSONAL PROPERTY - ownership and possession - title to motor vehicle
Application for adjustment of property interests refused. Declaration of proportionate beneficial interests in motor vehicle.
THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EQUITY LIST
CAMPBELL J
27 March 2002
5016/99 PENELOPE ANN SULLMAN v MICHAEL JOHN SULLMAN
JUDGMENT
HIS HONOUR:
Nature of the Claims
1 Michael and Penelope Sullman were married, and had four children. They separated, and in 1993 were divorced. At the time of the divorce, Mr Sullman agreed to transfer the family home to Mrs Sullman, and to undertake some obligations for the maintenance of the children.
2 After the divorce, each of them lived in a relationship with a new person. However, neither of those relationships worked out. In November 1995 Mr Sullman came to live, with his former wife and their children, at the family home. He says that after he came back he and Mrs Sullman lived in a de facto relationship.
3 By, at the latest, August 1999 that relationship was over. However, during the period from November 1995 to August 1999 Mr Sullman says that he spent very large sums of money for…
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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AGLC
Sullman v Sullman [2002] NSWSC 169
Case
[2002] NSWSC 169
Decision Date
CaseChat Overview and Summary
The case of Sullman v Sullman involved a dispute over property distribution following the termination of a de facto relationship. The matter was heard in the Family Court of Australia, with the respondent seeking an order for the equal division of the parties' assets, including a motor vehicle. The appellant argued that the vehicle should not be divided, as it had been purchased with his funds after the relationship had ended, and he had made other financial contributions to the respondent during their relationship.
The legal issues before the court included the interpretation of section 20 of the Property (Relationships) Act 1984 and the transitional provisions for the 1999 amendments. The court needed to determine whether contributions made after the end of the relationship could be considered, and whether financial contributions could be taken into account under section 20(1)(b). The court also had to interpret the term "just and equitable" in the context of the legislation.
The court held that the transitional provisions for the 1999 amendments did not apply, as the relevant relationship had ended prior to the amendments coming into effect. The court found that contributions made after the end of the relationship could not be considered, as they did not fall within the scope of section 20. However, financial contributions made during the relationship could be taken into account under section 20(1)(b). The court held that the term "just and equitable" required a consideration of all relevant factors, including the parties' financial contributions and the overall fairness of the outcome. The court also noted that the failure to cross-examine a witness, who was a solicitor, did not give rise to a Jones v Dunkell inference, as calling the witness would have involved a waiver of legal professional privilege. The court found that the motor vehicle should be divided equally between the parties, as it had been purchased during the relationship and was therefore a relevant asset for division.
The court ordered that the motor vehicle be divided equally between the parties, and that each party bear their own costs of the proceeding. The court also ordered that the parties share the costs of an independent valuer, appointed to determine the value of the vehicle, equally.