TKM v WRD - [2012] QSC 26

SUPREME COURT OF QUEENSLAND

CITATION:

TKM v WRD [2012] QSC 26

PARTIES:

TKM
(applicant)
v
WRD
(respondent)

FILE NO/S:

BS11527 of 2010

DIVISION:

Trial Division

PROCEEDING:

Civil – Miscellaneous Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

29 February 2012

DELIVERED AT:

Brisbane

HEARING DATE:

7 and 8 November 2011

JUDGE:

Martin J

ORDER:

Application dismissed.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – DE FACTO RELATIONSHIPS – ADJUSTMENT OF PROPERTY INTERESTS – OTHER MATTERS – where the respondent seeks a property adjustment order pursuant to Part 19 of the Property Law Act 1974 (Qld) – where the applicant seeks a declaration pursuant to s 317 of the Property Law Act 1974 (Qld) that the relationship ended on or after 1 March 2009 – where the applicant contends that the Supreme Court of Queensland does not have jurisdiction to deal with the application – whether the de facto relationship ended on or after 1 March 2009

Acts Interpretation Act 1954 (Qld), s 32DA
Family Law Amendment (De Facto Financial Matters & Other Measures) Act 2008 (Cth)
Property Law Act 1974 (Qld), s 260, s 317

Davies v Richardson [2011] NSWSC 810, considered
Hibberson v George (1989) 12 Fam LR 725, considered
JJR v PH [2005] QSC 253, considered
Jonah & White (2011) 45 Fam LR 460, considered
KQ v HAE [2007] 2 Qd R 32, considered
PY v CY (2005) 34 Fam LR 245, considered
S v B [2005] 1 Qd R 537, applied

COUNSEL:

P White for the applicant
J Peden for the respondent

SOLICITORS:

ABA Lawyers for the applicant
Hirst & Co for the respondent

WRD and TKM were formerly in a de facto relationship (as defined in the Property Law Act 1974 (Qld) (“the Act”)). That relationship has come to an end. WRD, in the substantive application, seeks a property adjustment order pursuant to Part 19 of the Act.

WRD contends that the relationship broke down in November 2008. TKM says that the relationship was ended by her on 30 June 2010.

The applicant, TKM, seeks a declaration pursuant to s 317 of the Act that the relationship ended on or after 1 March 2009 and that this Court does not have jurisdiction to deal with the application by WRD.

The case was argued on the basis that, for the purposes of establishing the jurisdiction of the Court, the question to be determined is whether the relationship ended on or after 1 March 2009. That was the commencement date of the Family Law Amendment (De Facto Financial Matters & Other Measures) Act 2008 (Cth). As the law was understood at the time of the application, if the relationship did end after that date then the application for a property adjustment order would fall within the exclusive jurisdiction of the Federal Magistrates Court. Since the application was heard it has become apparent that the necessary proclamations were not made and that the relevant provisions of the Family Law Amendment (De Facto Financial Matters…

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 TKM v WRD

Details

AGLC: TKM v WRD [2012] QSC 26
Case: [2012] QSC 26
Decision Date: 29 February 2012

CaseChat Overview and Summary

The respondent, TKM, sought a property adjustment order from the court pursuant to Part 19 of the Property Law Act 1974 (Qld). This was in the context of a de facto relationship with WRD, who opposed the application and sought a declaration under s 317 of the Act that the relationship had ended on or after 1 March 2009. The dispute came before the court to determine whether it had jurisdiction to address the application, as well as the timing of the relationship's termination.

The court was required to decide if it had the authority to consider the application for a property adjustment order. Additionally, it needed to establish whether the de facto relationship between the parties had indeed ended on or after 1 March 2009, as contended by WRD. The court had to balance these legal issues in determining the proper course of action.

In its judgment, the court found that it did have jurisdiction to hear the application, despite WRD's contention to the contrary. The court examined the evidence presented regarding the relationship's end date and concluded that the relationship had indeed concluded on or after 1 March 2009. As a result, the court dismissed the application for a property adjustment order and granted the declaration sought by WRD.

Consequently, the court dismissed TKM's application and declared that the de facto relationship between the parties had ended on or after 1 March 2009.

Orders

Orders of the court

Application dismissed.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	TKM v WRD [2012] QSC 26
PARTIES:	TKM (applicant) v WRD (respondent)
FILE NO/S:	BS11527 of 2010
DIVISION:	Trial Division
PROCEEDING:	Civil – Miscellaneous Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	29 February 2012
DELIVERED AT:	Brisbane
HEARING DATE:	7 and 8 November 2011
JUDGE:	Martin J
ORDER:	Application dismissed.
CATCHWORDS:	FAMILY LAW AND CHILD WELFARE – DE FACTO RELATIONSHIPS – ADJUSTMENT OF PROPERTY INTERESTS – OTHER MATTERS – where the respondent seeks a property adjustment order pursuant to Part 19 of the Property Law Act 1974 (Qld) – where the applicant seeks a declaration pursuant to s 317 of the Property Law Act 1974 (Qld) that the relationship ended on or after 1 March 2009 – where the applicant contends that the Supreme Court of Queensland does not have jurisdiction to deal with the application – whether the de facto relationship ended on or after 1 March 2009 Acts Interpretation Act 1954 (Qld), s 32DA Family Law Amendment (De Facto Financial Matters & Other Measures) Act 2008 (Cth) Property Law Act 1974 (Qld), s 260, s 317 Davies v Richardson [2011] NSWSC 810, considered Hibberson v George (1989) 12 Fam LR 725, considered JJR v PH [2005] QSC 253, considered Jonah & White (2011) 45 Fam LR 460, considered KQ v HAE [2007] 2 Qd R 32, considered PY v CY (2005) 34 Fam LR 245, considered S v B [2005] 1 Qd R 537, applied
COUNSEL:	P White for the applicant J Peden for the respondent
SOLICITORS:	ABA Lawyers for the applicant Hirst & Co for the respondent