Wren v Chandler - [2004] SADC 128

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
WREN v CHANDLER
Judgment of His Honour Judge Clayton
13 September 2004
REAL PROPERTY
DE FACTO RELATIONSHIPS ACT 1996 - JURISDICTION - whether cohabitation for 3 continuous years is required.
HELD: Separate periods of cohabitation can be aggregated for the purpose of determining the requirement of section 9(1)(a) of the Act that a relationship has existed for at least 3 years.
HELD: Property should be divided 55% in favour of plaintiff and 45% in favour of defendant.
De Facto Relationships Act 1996 ss.3, 9, 10, 11, 12; Criminal Assets Confiscation Act 1996 s.4, 5, 15(5), referred to.
Hibberson v George (1988-89) 12 Fam LR 725; Lipman v Lipman (1989) 13 FAMLR 1, distinguished.
Germinario v Pinkerton [2000] SADC 89 (13 July 2000); Jones v Grech [2001] NSWCA 208 (10 July 2001); Thomson v Badger (1989) 13 Fam LR 559; Fotheringham v Fotheringham Unreported, NSWCCA, 28 August 1998; Evans v Marmont (1997) 42 NSWLR 79; (19997) 21 Fam LR 760; McDonald v Stelzer [2000] NSWCA 302; Black v Black (1991) 15 Fam LR 109; Dwyer v Kaljo (1992) 27 NSWLR 728; Love v Chidley [2001] SADC 36; Condoluci v Condoluci [2002] SADC 159; Davey v Lee (1989) 13 Fam LR 688 at 689; Simmons v Williams [2002] SADC 168 (13 December 2002), considered.

WREN v CHANDLER
[2004] SADC 128

By summons issued 25 July 2002 Dianne Shirley Wren claimed first a declaration that she had lived in a de facto relationship with Robert Michael Chandler within the meaning of section 3 of the De Facto Relationships Act 1996 and, secondly, an order for the division of property pursuant to section 10 of that Act. The date of commencement of the proceedings has relevance for a reason which I mention below.
Section 10 of the Act gives the court jurisdiction to make orders it considers necessary to divide the property of de facto partners in a way that is just and equitable. Section 11 sets out matters for consideration.
The jurisdiction of the court is subject to compliance with section 9. Subsection (1) provides that after a de facto relationship ends, either of the de facto partners may apply for the division of property. Subsection (2) states that an application may only be made if the applicant or respondent is resident in the State when the application is made, the de facto partners were resident in the State for the whole or a substantial part of the period of the relationship and the de facto relationship existed for at least three years.
Unless the court is satisfied that an extension of the period is necessary, the application for division of the property must be made within one year after the end of the de facto relationship. Subsection 9(3) defines “de facto relationship” to mean “…. 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…

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 Wren v Chandler

Details

AGLC: Wren v Chandler [2004] SADC 128
Case: [2004] SADC 128
Decision Date: 13 September 2004

CaseChat Overview and Summary

In Wren v Chandler, the District Court of South Australia considered the application of Dianne Wren for a declaration that she had been in a de facto relationship with Robert Chandler and for an order for the division of property under the De Facto Relationships Act 1996. The court had to determine whether the relationship met the criteria for jurisdiction under the Act, including the requirement that the relationship existed for at least three years. The court also had to decide on the division of property between the parties in a way that was just and equitable.

The court found that the relationship between the parties met the jurisdictional criteria of the Act, despite periods of separation, by aggregating the separate periods of cohabitation. It concluded that the relationship should be assessed by the totality of the periods during which the parties lived together, rather than by discrete periods of cohabitation. The court ordered that the property should be divided 55% in favor of Ms. Wren and 45% in favor of Mr. Chandler, taking into account the financial and non-financial contributions of the parties, as well as other relevant factors. The court ordered Mr. Chandler to pay Ms. Wren $155,000 from the proceeds of the sale of their jointly owned property at 17 Traminer Drive, Angle Vale.

Orders