W v T - [2005] QSC 168

SUPREME COURT OF QUEENSLAND

CITATION:

W v T [2005] QSC 168

PARTIES:

W

(applicant)

v

T

(respondent)

FILE NO/S:

SC No 126 of 2004

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Mackay

DELIVERED ON:

20 June 2005

DELIVERED AT:

Townsville

HEARING DATE:

7 - 9 June 2005

JUDGE:

Cullinane J

ORDER:

1. Declare that from on or about 1985 until March 2004 the applicant and the respondent lived together as de facto partners within the meaning of section 32DA of the Acts Interpretation Act 1954 (Qld) as amended

2. Reserve the costs of the application to the trial judge

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – DE FACTO RELATIONSHIPS – LEGISLATION – where order made that the issue of whether there was a de facto relationship between the applicant and the respondent be tried separately – whether applicant and respondent were in a de facto relationship under Part 19 Property Law Act 1974 (Qld) – whether applicant and respondent were de facto partners within the meaning of section 32DA Acts Interpretation Act 1954 (Qld) – whether applicant and respondent shared a common residence during the relevant period

Acts Interpretation Act 1954 (Qld), s 32DA
Property Law Act 1974 (Qld), s 257, s 260

S v B [2004] QCA 449, CA No 3022 of 2004, 26 November 2004, cited

COUNSEL:

K Fleming QC for the applicant

M A Fellows for the respondent

SOLICITORS:

SR Wallace & Wallace for the applicant

John Ryan & Co for the respondent

The applicant seeks an order by way of property adjustment under Part 19 of the Property Law Act1974 (Qld) as amended. There has been an order that the issue whether the applicant was at relevant times the de facto partner of the respondent be tried separately.

By virtue of section 260 of the Property Law Act 1974 (Qld) a reference to a de facto partner is a reference to a person who falls within the definition of section 32DA of the Acts Interpretation Act1954 (Qld) as amended.

This (so far as is relevant) provides as follows:

(1) In an Act, a reference to a “de facto partner” is a reference to either 1 of 2 persons who are living together as a couple on a genuine domestic basis but who are not married to each other or related by family.

(2) In deciding whether 2 persons are living together as a couple on a genuine domestic basis, any of their circumstances may be taken into account, including, for example, any of the following circumstances -

(a) the nature and extent of their common residence

(b) the length of their relationship;

(c) whether or not a sexual relationship exists or existed;

(d) the degree of financial dependence or interdependence, and any arrangement for financial support;

(e) their ownership, use and acquisition of property;

(f) the degree of mutual commitment to a shared life, including the care and support of each other;

(g) the care and support of children;

(h) the…

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 T

Details

AGLC: W v T [2005] QSC 168
Case: [2005] QSC 168
Decision Date: 20 June 2005

CaseChat Overview and Summary

In the Family Court of Australia, W brought a claim against T seeking a declaration that a de facto relationship existed between them for the purposes of the Property Law Act 1974 (Qld) and the Acts Interpretation Act 1954 (Qld). The court was required to determine whether the applicant and the respondent had a de facto relationship under the statutes mentioned and whether they shared a common residence during the relevant period.

The court considered the definitions of de facto relationships under both statutes, focusing on the criteria such as cohabitation and the nature of the relationship. It examined the evidence presented regarding the duration of their cohabitation and the nature of their relationship, including financial and emotional interdependence. The court also considered the testimony of both parties and other relevant evidence to determine whether they met the criteria for being considered de facto partners.

After evaluating the evidence, the court found that the applicant and the respondent were in a de facto relationship from around 1985 until March 2004. The court declared that they lived together as de facto partners within the meaning of section 32DA of the Acts Interpretation Act 1954 (Qld). The costs of the application were reserved to be determined by the trial judge.

The court's final order was to declare that from on or about 1985 until March 2004, the applicant and the respondent lived together as de facto partners within the meaning of section 32DA of the Acts Interpretation Act 1954 (Qld) as amended. The court reserved the costs of the application to the trial judge.

Orders

Orders of the court

1. Declare that from on or about 1985 until March 2004 the applicant and the respondent lived together as de facto partners within the meaning of section 32DA of the Acts Interpretation Act 1954 (Qld) as amended

2. Reserve the costs of the application to the trial judge

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	W v T [2005] QSC 168
PARTIES:	W (applicant) v T (respondent)
FILE NO/S:	SC No 126 of 2004
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Mackay
DELIVERED ON:	20 June 2005
DELIVERED AT:	Townsville
HEARING DATE:	7 - 9 June 2005
JUDGE:	Cullinane J
ORDER:	1. Declare that from on or about 1985 until March 2004 the applicant and the respondent lived together as de facto partners within the meaning of section 32DA of the Acts Interpretation Act 1954 (Qld) as amended 2. Reserve the costs of the application to the trial judge
CATCHWORDS:	FAMILY LAW AND CHILD WELFARE – DE FACTO RELATIONSHIPS – LEGISLATION – where order made that the issue of whether there was a de facto relationship between the applicant and the respondent be tried separately – whether applicant and respondent were in a de facto relationship under Part 19 Property Law Act 1974 (Qld) – whether applicant and respondent were de facto partners within the meaning of section 32DA Acts Interpretation Act 1954 (Qld) – whether applicant and respondent shared a common residence during the relevant period Acts Interpretation Act 1954 (Qld), s 32DA Property Law Act 1974 (Qld), s 257, s 260 S v B [2004] QCA 449, CA No 3022 of 2004, 26 November 2004, cited
COUNSEL:	K Fleming QC for the applicant M A Fellows for the respondent
SOLICITORS:	SR Wallace & Wallace for the applicant John Ryan & Co for the respondent