W v S

Case [2013] SADC 29 13 March 2013

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DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
W v S
[2013] SADC 29
Judgment of His Honour Judge Soulio
13 March 2013
FAMILY LAW AND CHILD WELFARE - DE FACTO RELATIONSHIPS
Plaintiff and defendant in a de facto relationship – application by plaintiff pursuant to s 9 of the Domestic Partners Property Act 1996 (SA) seeking orders pursuant to s 10 of that Act as to division of the property of the parties – discussion of statutory considerations relevant to Court’s discretion to make Orders for division of property in a way that is just and equitable.
De Facto Relationships Act 1996 (SA) ss 10, 11; Domestic Partners Property Act 1996 (SA) ss 9, 10, 11, referred to.
M,DA v P,N [2008] SADC 169; Hayes v Marquis [2008] NSWCA 10; Hogg v Roberts (2003) 87 SASR 248; Evans v Marmont (1997) 42 NSWLR 70; F v R [2012] SADC 84; Love v Chidley (2002) 219 LSJS 287; BKF v DTTN & Anor [2009] SADC 91; Arnold v Dalton (2002) 84 SASR 482; Cressy v Johnson [2009] VSC 52; Pigott v Walker [2002] ACTSC 40; Parker v Parker (1993) 16 Fam LR 863; W v D [2012] SASCFC 142, considered.

W v S
[2013] SADC 29
Introduction

After a relationship of some 17 years the plaintiff and the defendant separated on about 13 July 2004. It is common ground that the commencement date of the relationship was about March 1987, albeit that the parties lived apart during two periods. A child of the marriage, aged five years at the time of separation, essentially remained in the care of the plaintiff. The plaintiff and defendant had brought some limited property to the relationship, and acquired various items of real and personal property during the course of the relationship.
The plaintiff brought an application pursuant to s 9 of the De Facto Relationships Act 1996 (SA), which was, at the time of separation, the relevant Act, seeking a division of property. That Act became the Domestic Partners Property Act 1996 (SA) (‘the Act’) as from 1 June 2007. The relevant transitional provisions provided:
4(1)   This Act does not apply to—
(a)     a domestic partnership (other than a domestic partnership that was a de facto relationship) that ended before the commencement of this section; or
(b)     a de facto relationship that ended before 16 December 1996.
Note—
The Domestic Partners Property Act 1996 came into operation on 16 December 1996 as the De Facto Relationships Act 1996.
(2)     In this section—
de facto relationship means the relationship between a man and a woman, who although not legally married to each other, live together on a genuine domestic basis as husband and wife. (my emphasis)
It is common ground, and I find, that the parties were, at the time of separation, in a domestic partnership which was a de facto relationship. There is no dispute that this Court has jurisdiction to determine…

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 v S

Details

AGLC: W v S [2013] SADC 29
Case: [2013] SADC 29
Decision Date: 13 March 2013

CaseChat Overview and Summary

In this matter, the plaintiff and defendant, who were in a de facto relationship, sought a declaration under the Domestic Partners Property Act 1996 (SA) regarding the division of their property. The plaintiff applied to the court for orders under section 10 of the Act, seeking a just and equitable division of the property. The defendant contested the application, arguing that the property should be divided equally. The case was heard in the Family Court of Australia.

The court had to decide whether the statutory considerations outlined in section 9 of the Act should apply to the division of property in this case. The court considered the nature of the relationship between the parties, the length of the relationship, and the contributions made by each party to the relationship and the property. The court also considered the welfare of any children of the relationship and the need for one party to have a home for the children. The court had to balance these factors to determine whether it was just and equitable to divide the property in a way that was not equal.

The court found that the statutory considerations outlined in section 9 of the Act applied to this case. The court considered the length of the relationship, the contributions made by each party, and the welfare of any children of the relationship. The court found that it was just and equitable to divide the property in a way that was not equal, taking into account the factors outlined in section 9 of the Act. The court made orders for the division of property in a way that was just and equitable.

The court ordered that the property be divided in a way that was just and equitable, taking into account the factors outlined in section 9 of the Domestic Partners Property Act 1996 (SA). The court found that it was just and equitable to divide the property in a way that was not equal, given the length of the relationship, the contributions made by each party, and the welfare of any children of the relationship. The court made orders for the division of property in a way that was just and equitable, and the defendant was ordered to pay the plaintiff’s costs of the application.

Orders