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Written by Peter Carter

April 16, 2014

Queensland’s highest court has been asked to decide the essential elements of a de facto partnership and whether the male partner of a woman who died in a motor accident in June 2007, could recover dependency damages as a result of a less than traditional relationship.
Shane Perry failed at trial to clear the bar in s32DA of the Acts Interpretation Act which sets out numerous indicators of whether or not a couple were, as at the date of the death, living together as a couple “on a genuine domestic basis”.

His insistence that “what’s mine is mine, and what’s hers is hers” and the tension in his relationship with the deceased’s adult children, were the two factors which led to the trial judge to conclude that their co-habitation was inconsistent with a genuine domestic relationship.

That he was “not exactly sure what the child Hayley did” was an indication in that judge’s mind of his lack of involvement with her children. And his response to her suggestion of marriage, that they first buy a house together, had indicated a failure to commit.

Overturning that judgment, the appeal judges ruled the “primary judge failed to give proper regard to all demonstrated elements of a true domestic relationship”. “It is correct that the couple were in no hurry to pool resources,” said His Honour Justice Muir in the lead judgment. “But the deceased and the appellant were of mature age and used to their independence.

The appellant had the needs of his mother to consider and the deceased had three children”. “What was being postponed, was marriage, not the continuance of a de facto relationship”.

The court allowed the appeal and ordered that dependency damages assessed by the trial judge at $281k, be paid by the CTP insurer, Suncorp.

Perry v Killmier & Anor [2014] QCA 064 Muir and Gotterson JJA and Applegarth J 04/04/2014

Categories: Personal Injury , Litigation & Law Practice

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