Advertisement

Property – applicant’s equitable trust claim fails as purchases were gifts…

…respondent’s claim fails as there was no de facto relationship

In H, AW v K, S [2021] SASC 128 (11 November 2021), Bochner J of the Supreme Court of South Australia dismissed all applications after a four-year relationship between a dual citizen of Australia and the United States (the applicant), and a single mother who lived in Adelaide (the respondent).

The applicant sought a declaration that the respondent’s vehicle and bank balances were held on trust for him ([4]).

The respondent argued the dealings were gifts and [she] sought a declaration that the parties were in a de facto relationship.

The court said (from [52]):

“The applicant agreed that [his] … communication [to the respondent] amounted to representations that he would provide for her … He denied … that the provision of financial support … or … any other gifts to her would be unconditional. (…)

[59] … [T]he parties did not acquire any assets together … The respondent never visited the applicant’s house …, nor was she invited to do so. (…)

[151] The applicant came to Adelaide [where the respondent lived] between five and nine times each year during the relationship. The length of the visits varied, from less than twenty-four hours, to seven days (…)

[193] … I consider that the parties’ relationship was not that of a couple living together on a genuine domestic basis. The evidence does not demonstrate ‘the merger of two individual lives into life as a couple’ …  [I]t demonstrates two individuals living their separate lives and coming together seven or eight times each year for some shared time. It my view it is the time that was shared, rather than the lives.”

As to the trust claim, the court said (from [214]):

“ … [T]his evidence leads me to the conclusion that the moneys given to the respondent … were a gift. … [A]ny statements made by the applicant that the moneys should be used for rent, clothes and other expenses were no more than indicative of his motive … They did not serve to impress the funds with a trust.”

Craig Nicol and Keleigh Robinson are co-editors of The Family Law Book. Both are accredited specialists in family law (Queensland and Victoria, respectively). The Family Law Book is a one-volume loose-leaf and online family law service (thefamilylawbook.com.au).

Share this article

Leave a Reply

Your email address will not be published.

Search by keyword