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Vaher v Gibson

Vaher v Gibson

Case [2008] SADC 75 19 June 2008

Statutory Interpretation

Retrospective Operation

Domestic Partner

Onus of Proof

Family Law

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DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Application)
VAHER v GIBSON
[2008] SADC 75
Judgment of His Honour Judge David Smith
19 June 2008
STATUTES - ACTS OF PARLIAMENT - OPERATION AND EFFECT OF STATUTES - RETROSPECTIVE OPERATION - AMENDING ACTS
Applicant applied in March 2007 for declaration that she was domestic partner of deceased within meaning of Part 3 of Family Relationships Act 1975 (SA) – Part 3 of said Act was amended by replacing the original “putative spouse” provisions with new and less stringent “domestic partners” provisions – new Part 3 provisions commenced operation in June 2007 – Applicant amended application and purported to rely on current provisions of Part 3 – consideration of whether current provisions applied and/or were retrospective – discussion of principles of statutory construction as to retrospective operation of amending statutes.
Held: that the current Part 3 “domestic partners” provisions of the said Act were not retrospective in operation but nonetheless applied to the application because they operated to determine future rights by reference to past or antecedent circumstances – discussion of statutory requirements and onus of proof for application under current “domestic partners” provisions in Part 3 of said Family Relationships Act.
Held: Applicant declared to be domestic partner of deceased within the meaning of the current Part 3 provisions of the said Act.
Family Relations Act 1975 Part 3; Statutes Amendment (Domestic Partners) Act 2006 s5, s11; Acts Interpretation Act 1915 s16, referred to.
Brook v Flinders University (1988) 41 SASR 119; Maxwell v Murphy (1957) 96 CLR 261; Fisher v Hebburn Ltd (1960) 105 CLR 188; Coleman v Shell Company of Australia Ltd (1945) 45 SR (NSW) 27; Robertson v Nunawading [1973] VR 819; Roy v Sturgeon (1986) 11 NSWLR 454; In re Fagan, Deceased (1980) 23 SASR 454; Jones v Dunkel (1958) 101 CLR 298; Cornwall v Rowan (2004) 90 SASR 269; Payne v Parker [1976] 1 NSWLR 191; Spence v Demasi (1988) 48 SASR 536, considered.

EVIDENCE - ADMISSIBILITY AND RELEVANCY - IN GENERAL
In context of application that Applicant and deceased had been domestic partners within the meaning of the provisions of Part 3 of Family Relationships Act 1975 (SA) evidence given by witnesses of statements made by deceased as to both his relationship with the Applicant, his intentions regarding the disposition of his estate and generally – discussion of relevancy and admissibility of such statements – discussion in particular of whether given relevance such evidence should be excluded as inadmissible hearsay or whether it should be admitted as original evidence or evidence of only the fact of what was said.
Held: though not crucial for final decision evidence of deceased’s statements as deposed to by other witnesses received on the basis of it being it evidence only of the fact of what was said by the deceased to the witness not for the truth of the content of what was said.

VAHER v GIBSON
[2008] SADC 75

In this…

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 Vaher v Gibson

Details

AGLC: Vaher v Gibson [2008] SADC 75
Case: [2008] SADC 75
Decision Date: 19 June 2008

CaseChat Overview and Summary

The case of Vaher v Gibson involved an application by the Applicant, who sought a declaration that she was the domestic partner of the deceased under Part 3 of the Family Relationships Act 1975 (SA). The Applicant originally applied in March 2007, before Part 3 of the Act was amended in June 2007. The amendment replaced the original "putative spouse" provisions with new, less stringent "domestic partners" provisions. The Applicant subsequently amended her application to rely on the current provisions of Part 3. The central issue before the court was whether these current provisions applied to the Applicant's situation and, if so, whether they operated retrospectively.

The court examined the principles of statutory construction regarding the retrospective operation of amending statutes. It determined that the current "domestic partners" provisions of Part 3 were not retrospective in operation. However, the court also found that these provisions applied to the Applicant's case because they operated to determine future rights by reference to past or antecedent circumstances. This approach allowed the court to consider the relationship between the Applicant and the deceased under the new provisions, even though the amendment occurred after the initial application.

In its reasoning, the court noted that while the general principle is that statutes do not operate retrospectively, there are exceptions where statutes apply to events occurring before their enactment if they determine future rights by reference to past circumstances. The court also discussed the statutory requirements and the onus of proof for an application under the current "domestic partners" provisions in Part 3 of the Family Relationships Act. The court's decision hinged on the interpretation of these provisions and their applicability to the Applicant's situation.

The final orders of the court were that the current "domestic partners" provisions of Part 3 of the Family Relationships Act 1975 (SA) applied to the Applicant's case, notwithstanding their non-retrospective nature. The court did not rule out the possibility that the Applicant could satisfy the statutory requirements for being considered a domestic partner under the amended provisions.

Orders