JONES v. GRECH [2001] NSWCA 208

Reported Decision : (2001) 27 Fam LR 711 (2001) DFC 95-234

New South Wales Court of Appeal

CITATION : JONES v. GRECH [2001] NSWCA 208 FILE NUMBER(S) : CA 40167/2000 HEARING DATE(S) : 06/04/2001 JUDGMENT DATE : 10 July 2001

PARTIES : Linda Jones (Appellant) Paul Grech (Respondent) JUDGMENT OF : Powell JA at 1; Davies AJA at 21; Ipp AJA at 42

LOWER COURT JURISDICTION : Supreme Court - Equity Division LOWER COURT ED1598/99; ED1954/99 FILE NUMBER(S) : LOWER COURT Master McLaughlin JUDICIAL OFFICER :

COUNSEL : Ms. D.M. Coulton (Appellant) T.L.P. Hodgson (Respondent) SOLICITORS : Vizzone Ruggero & Associates (Mascot) (Appellant) Altobelli & Associates (Hurstville) (Respondent) CATCHWORDS : FAMILY LAW - De facto relationships - Property adjustment order - Application for - When permitted - Evidence on - Commencement and determination of relationship - Contributions - Contributions made prior to commencement of relationship D DECISION : Appeal allowed - for orders (by majority) see paras. 99-102.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40167/2000 ED 1598/99 ED 1954/99 POWELL JA DAVIES AJA IPP AJA

10 July 2001

JONES v. GRECH

JUDGMENT 1 POWELL JA: I regret to say that such difficulties as attend the present appeal have been brought about in no small measure by what I can only regard as the supreme disregard by the parties and their legal advisers - both at trial and on the hearing of the appeal - of significant provisions of the De facto Relationships Act 1984 ("the Act") as it was known at the time of the commencement of the proceedings, together with some fundamental principles applicable to this area of the law, which disregard appears to have led to a great deal of confusion of thought - on the part of the parties and their legal advisers - both at trial and on the hearing of the appeal - and on the part of Master McLaughlin - from whose decision this appeal has been brought - at trial and in his Judgment. 2 Although what I have written may be regarded by some as an overly harsh statement, it is to be recorded that the order which, in this appeal, the Appellant seeks to have set aside is one said to have been based upon the provisions of the Act, and that the first step towards establishing that, the Court has jurisdiction to make a property adjustment order involves establishing that at some time after the coming into operation of the Act, a de facto relationship had existed between the parties. 3 Despite the need for there to have been determined with some degree of precision whether there had been a relevant de facto relationship, or a series of relevant de facto relationships, between the parties, that was not done at trial. On the contrary, in the course of his Judgment, the Master was to write (RAB 50-51): "7. At various times from late 1965 until August 1997 - that is, over a period of more than thirty-two years - the parties lived together or were otherwise in some form of relationship. The precise nature of that relationship (which at times was a de facto relationship of the nature described in section 3(1) of the De Facto Relationships Act, and at times was of a different, and somewhat lesser, status) was the subject of dispute between the parties. Similarly, the parties were in dispute as to the precise periods during which they cohabited. 8. It was not in dispute however, that at least for a period from 1985 to 1991 and for a period from 1993 until their final separation in August or September 1997 the parties lived together in a de facto relationship. It was not disputed that upon that final separation the defendant vacated the Chifley property, which had (subject to the interruption in their de facto relationship from 1991 to 1993) been their family home from the time of its acquisition. Since the final departure of the defendant from the Chifley property the plaintiff has continued to live in that residence. 9. At various times the parties cohabited at the residence of the defendant's mother (with whom the defendant was residing at the time when she and the plaintiff first met), and at other times they resided together in Housing Commission accommodation occupied by the defendant located variously at Liverpool and at Maroubra."