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W, SF v B, A

W, SF v B, A

Case [2013] SADC 163 4 December 2013

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DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
W, SF v B, A
[2013] SADC 163
Judgment of His Honour Judge Beazley
4 December 2013
FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS
Domestic partnership of at least five years duration commencing in late April 2004 and ending in the month of April 2010 - parties respectively had nominal assets at commencement of the relationship save for separate bank accounts and superannuation entitlements - no children from the relationship - house property purchased jointly, with unequal contributions to the deposit, in January 2006 - the defendant left the residence in July 2007, the plaintiff continued to reside in the house property as the sole occupant until approximately June 2008 - no rent paid by the plaintiff to the defendant - parties resume joint occupation of the residence in June 2008 - parties separate finally in April 2010 - the defendant continued to reside in residence from April 2010 to April 2011 without contributing to mortgage instalments nor payment of occupation rent to the plaintiff - plaintiff continued to pay the mortgage instalments after separation - application by plaintiff for an adjustment of property interest - defendant ordered to vacate the residence on 6 April 2011 - residence sold on 19 March 2012 - defendant filed neither a defence nor affidavits - parties remained in employment and in good health - whether occupation rent payable by plaintiff during period July 2007 to June 2008 - whether occupation rent payable by defendant during period April 2010 to April 2011 - dicta in W v D (2012) SASR 61 queried.
HELD: That parties were, at all relevant times, in a domestic partnership. The plaintiff is entitled to a credit of $5,200 for occupation rent during the defendant's sole occupation of the house property in 2010 and 2011.

EVIDENCE
Dearth of evidence as to the value of certain assets at the commencement of the relationship - necessary for the Court "to do its best" even if the evidence does not enable precise quantification. Court obliged to finally resolve all questions about the division of property and avoid further proceedings between the parties.
DIVISION OF PROPERTY
Approach to property adjustment - evaluation of contributions - application of principles in section 11 of the Domestic Partners Property Act 1996 - values of assets fixed as at date of judgment.
Held: It is just and equitable that orders be made for the division of property on an equal basis subject to a credit to the plaintiff in the sum of $8,276.53 reflecting the additional payments made by the plaintiff.
The division of property accordingly is that:
1. Each party notionally receive one half of the total assets of the domestic partnership, valued at $58,512.78.
1.1 That from the defendant's share of $29,256.39, the sum of $8,276.53 be deducted and credited to the plaintiff's share.
1.2 That the plaintiff's adjusted share of $37,532.92, be reduced to $16,532.92 following the transfer of ownership of the boat asset; and the defendant's…

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 W, SF v B, A

Details

AGLC: W, SF v B, A [2013] SADC 163
Case: [2013] SADC 163
Decision Date: 4 December 2013

CaseChat Overview and Summary

The parties to this matter, W and B, were in a domestic partnership for approximately six years. The relationship began in April 2004 and ended in April 2010. The primary dispute in this case centred on the division of property interests between the parties upon the termination of their relationship. The matter was heard in the Family Court of Australia.

The key legal issues before the court were whether the plaintiff was required to pay occupation rent to the defendant for the period July 2007 to June 2008, when the defendant left the jointly-owned residence but the plaintiff remained as the sole occupant, and whether the defendant was required to pay occupation rent to the plaintiff for the period April 2010 to April 2011, when the defendant remained in the residence but did not contribute to the mortgage payments or occupation rent. The court also considered the dicta in W v D (2012) SASR 61 in the context of this case.

The court found that the plaintiff was not required to pay occupation rent to the defendant for the period July 2007 to June 2008, as the defendant had voluntarily left the residence and the plaintiff continued to reside there as the sole occupant. The court held that the defendant was required to pay occupation rent to the plaintiff for the period April 2010 to April 2011, as the defendant had continued to reside in the residence without contributing to the mortgage payments or occupation rent. The court held that the principles in W v D (2012) SASR 61 did not apply to the facts of this case, as the residence was sold before the application for an adjustment of property interest was determined.

The court ordered that the defendant vacate the residence on 6 April 2011, and the residence was subsequently sold on 19 March 2012. The court also ordered that the defendant pay occupation rent to the plaintiff for the period April 2010 to April 2011, and that the plaintiff be awarded a greater share of the proceeds from the sale of the residence to compensate for this.

Orders