Legal Research
Cases
Vihervaara v Nasr

Vihervaara v Nasr

Case [2016] SADC 20 4 March 2016

No judgment structure available for this case.

Type to search within this case.

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
VIHERVAARA v NASR
[2016] SADC 20
Judgment of His Honour Judge Millsteed
4 March 2016
FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS
Plaintiff applied for a property adjustment order pursuant to s9 of the De Facto Relationships Act 1996 (SA) ('the Act') - whether plaintiff lived with defendant in a de facto relationship - held that parties lived together in a de facto relationship from May 1998 when plaintiff became pregnant with the parties' child until 12 June 2004 when she gave birth to child contrary to defendant's evidence - whether it was just and equitable that the parties' assets be divided equally between them pursuant to s109 of the Act - held that it was just and equitable that the parties' former home be sold and that the net proceeds of the sale be divided equally between them - held that it was just and equitable that the furniture and electrical appliances in the home (other than fittings) be sold and that proceeds of the sale be divided equally between them.
Nasr v Vihervaara [2005] SASC 83; Roy v Sturgeon (1986) 11 NSWLR 454; Jones v Grech (2001) 27 Fam LR 711; Zegerac v Tomasevic [2003] VSC 150; Hogg v Roberts (2003) 87 SASR 248; F v R [2012] SADC 84; Love v Chidley (2002) 219 LSJS 287; Kemp v King (1995) 127 FLR 264; Parker v Parker (1993) 16 Fam LR 863; Arnold v Dalton (2002) 84 SASR 482; In the Marriage of Mallet (1984) 156 CLR 605; W v D (2012) 115 SASR 61; W, SF v B, A [2013] SADC 163, considered.

VIHERVAARA v NASR
[2016] SADC 20
INTRODUCTION

The plaintiff has applied for a property adjustment order pursuant to s 9 of the De Facto Relationships Act 1996 (SA) (‘the Act’)[1] on the basis that she lived in a de facto relationship with the defendant from May 1998 until 12 June 2004 and gave birth to their child (‘S’) on 3 February 1999. The plaintiff primarily seeks an order that the parties’ assets be divided equally between them. The defendant agrees that he had a relationship with the plaintiff which produced a child but contends that this Court has no jurisdiction to make the order(s) sought because the relationship did not amount to a de facto relationship for the purposes of the Act. The defendant further claims that even if such a relationship had existed, an appropriate adjustment order should result in a division of property favourable to him.
[1]    The Act became the Domestic Partners Property Act 1996 (SA) (‘DPPA’) as from 1 June 2007. The Act applies to the present proceedings because the alleged de facto relationship ended before the commencement of the DPPA. The transitional provisions contained in the DPPA provide:
4(1)     This Act does not apply to –
(a)     a domestic partnership (other than a domestic partnership that was a…

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 Vihervaara v Nasr

Details

AGLC: Vihervaara v Nasr [2016] SADC 20
Case: [2016] SADC 20
Decision Date: 4 March 2016

CaseChat Overview and Summary

Vihervaara v Nasr involved a dispute over a property adjustment order under the De Facto Relationships Act 1996 (SA). The plaintiff sought an order to divide the assets of the former de facto relationship equally between the parties. The defendant contested the claim, arguing that the relationship did not exist for the period claimed by the plaintiff. The matter was heard and determined in the South Australian Magistrates Court.

The court had to decide whether the plaintiff and defendant had lived together in a de facto relationship and, if so, for how long. Additionally, the court had to determine whether it was just and equitable to divide the assets of the relationship equally between the parties. The court examined the evidence and found that the parties had lived together in a de facto relationship from May 1998 until the birth of their child on 12 June 2004. The court also found that it was just and equitable to divide the former home and its contents equally between the parties.

The court's reasoning was based on the evidence presented and the statutory framework of the De Facto Relationships Act 1996 (SA). The court found that the plaintiff had provided sufficient evidence to establish the existence and duration of the de facto relationship. The court also found that the division of the assets was just and equitable, taking into account the contributions of both parties to the relationship and the welfare of any children of the relationship. The court ordered that the former home be sold, and the net proceeds be divided equally between the parties. Additionally, the court ordered that the furniture and electrical appliances in the home be sold, and the proceeds be divided equally between the parties.

Orders