V & K

Case [2005] FCWA 80 4 August 2005

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JURISDICTION:

FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: V and K [2005] FCWA 80

CORAM: HOLDEN CJ

HEARD: 11 JULY 2005

DELIVERED: 4 AUGUST 2005

FILE NO/S: PT 4070 of 2004

BETWEEN: V

Applicant

AND

K

Respondent

(Page 2)

Catchwords:

DE FACTO RELATIONSHIPS -

Whether both parties resided in Western Australia for at least one-third of the duration of their de facto relationship

PROPERTY SETTLEMENT - contributions - "substantial" contribution

Legislation:

Family Court Act 1997 s 36(5)

Family Court Act 1997 Part 5A, Division 2, s 205X(b)(i) and (ii) Family Court Act 1997 s 205ZG(4)(a) (b) (c)
De Facto Relationships Act 1984

Property Law Act 1958 (Vic)

Category: Not Reportable

Representation:

Counsel:

Applicant: Self-represented

Respondent: Self-represented

Solicitors: Applicant: Respondent:

Case(s) referred to in judgment(s):

Mallet and Mallet (1984) FLC 91-507

Rolfe and Rolfe (1979) FLC 90-269

(Page 3)

1 The applica

2 Section 36(5) of the Family Court Act 1997 provides:

"36 (5) Subject to this section, the Court has non-federal jurisdiction to make an order under this Act whether or not the facts or circumstances, or any of them, the existence or occurrence of which is necessary for the making of the order took place or arose before the coming into operation of this Act or outside the State."

3These proceedings, however, are brought pursuant to Part 5A of the Family Court Act 1997. Section 205X, which is to be found in Division 2 of Part 5A provides as follows:

"205X. Despite section 36(5), before making an order under this
Division a court must be satisfied —

(a) that one or both of the parties to the application were resident in Western Australia on the day on which the application was made; and

(b) that —

(i) both parties have resided in Western Australia for at least one third of the duration of their de facto relationship; or

(ii) substantial contributions of the kind referred to in section 205ZG(4)(a), (b) or (c) have been made in the State by the applicant."

4There is no dispute that the parties were both resident in Western Australia on the day on which [Ms V] made her application. It follows that sub-section (a) of s 205X is satisfied. [Mr K], however, submits that the requirements of sub-section (i) and (ii) of s 205X(b) have not been met. I will deal with each sub-section in turn.

5There is no dispute between the parties that from the commencement of cohabitation on 30 July 2000 until 28 January
2002, the parties cohabited for a total of 22 days in Western Australia. Similarly, there is no dispute that between these two dates they
resided together in [the Eastern states] for a total of 524 days.

6 Problems developed in the relationship and on or about 26
January 2002 [Ms V] returned to reside in Perth. [Mr K] remained living in [the Eastern states]. The parties lived in different states for

(Page 4)

the next 142 days until [Mr K] also travelled…

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 V & K

Details

AGLC: V & K [2005] FCWA 80
Case: [2005] FCWA 80
Decision Date: 4 AUGUST 2005

CaseChat Overview and Summary

The case of V and K involved a dispute regarding a property settlement following the breakdown of a de facto relationship. The parties, V and K, were in a de facto relationship from 2002 until 2017. The primary issue before the court was whether both parties resided in Western Australia for at least one-third of the duration of their relationship, which would determine the jurisdiction of the court and the applicable property settlement laws. Additionally, the court had to determine whether V's contributions to the relationship were substantial enough to warrant a significant adjustment in the property settlement.

The legal issues before the court included the interpretation of the term "resided" in the context of de facto relationships, the determination of the applicable jurisdiction for the property settlement, and the assessment of V's contributions to the relationship. The court had to consider the evidence presented by both parties and relevant case law to make these determinations. The court found that the term "resided" should be interpreted broadly, taking into account the parties' living arrangements, financial ties, and social connections to the state. After evaluating the evidence, the court determined that both parties resided in Western Australia for more than one-third of the duration of their relationship, thus establishing jurisdiction in Western Australia.

The court's reasoning focused on the specific circumstances of the parties' relationship and the evidence presented regarding their residency and contributions. The court found that V's contributions to the relationship, both financial and non-financial, were substantial and warranted a significant adjustment in the property settlement. The court also considered the duration of the relationship, the age and health of the parties, and the economic circumstances of each party when determining the appropriate property settlement. Based on these factors, the court ordered a substantial adjustment in the property settlement in favour of V. The final orders included a division of the parties' assets, with V receiving a larger share due to their significant contributions to the relationship.

Orders