Bowden v Foster - [2007] NSWSC 29

CITATION: Bowden v Foster [2007] NSWSC 29
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 25/09/06; 26/09/06; 05/10/06

JUDGMENT DATE :
21 February 2007

JURISDICTION: Equity Division

JUDGMENT OF: Associate Justice Macready at 1

DECISION: Paragraph 76

CATCHWORDS: Family Law. Application for adjustment of parties' property interests under s 20 of the Property (Relationships) Act 1984. Consideration of whether contributions in an earlier relationship can be taken into account. Order made for adjustment.

PARTIES: Gail Bowden v Terrence Patrick Foster

FILE NUMBER(S): SC 4558 of 2003

COUNSEL: Mr Gulpers for plaintiff
Mr JR Drummond for defendant

SOLICITORS: Bellantonio & Rees for plaintiff
Booth & Boormand for defendant

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Associate Justice Macready

Wednesday 21 February 2007

4558/03 Gayle Bowden v Terrence Patrick Foster

JUDGMENT

1 His Honour: This is the hearing of a claim under the Property (Relationships) Act 1984 for the adjustment of the parties’ property interest under s 20 of the Act. The parties lived in a de facto relationship from either 1984 or 1986 until they separated on 2 October 2001. There were no children from the relationship but they each had children from a previous relationship.

Background history

2 The defendant was born on 5 December 1946 and he married his wife Susan on 5 June 1965. The defendant had purchased land at Valley Heights and he constructed a home on the land. They had a family and separated, according to the defendant, in April 1985.

3 The defendant leased premises in Church Street, Parramatta where he lived for 6 months. He then rented premises at Kingswood in January 1986 and says that the plaintiff moved in with him in February 1986. Thereafter he says that they lived together until March 1987 when they separated in June or July 1987. He says that there was a further break in September 1987 until November 1988.

4 The defendant, through his company Fencing Constructions Pty Ltd (Fencing) purchased land known as 50 Sylvan Road, Werombi (“Werombi property”) for $270,000 on 21 December 1987. The property was purchased from the plaintiff’s brother and after its purchase the parties recommenced living together at the property. The plaintiff says that she first commenced to reside with the defendant at Parramatta in September 1984. She differs from the defendant as to the extent of their earlier separations.

5 At the Werombi property there was carried on a thoroughbred breeding and spelling business known as “Sun Cherry Stud”. Fencing continued this business and it paid all the expenses and received the income. During the course of the relationship there were many improvements to the Werombi property.

6 On 30 August 1999 a business name “Serenity Park Australia” was registered. On 1 July 2000 a partnership commenced between the plaintiff and Fencing which carried on the former business under this name.

7 The parties are agreed that they…

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 Bowden v Foster

Details

AGLC: Bowden v Foster [2007] NSWSC 29
Case: [2007] NSWSC 29
Decision Date: 21 February 2007

CaseChat Overview and Summary

Bowden and Foster were former de facto partners who brought an application to the Family Court for an adjustment of their respective property interests under section 20 of the Property (Relationships) Act 1984. Bowden sought to have contributions made by Foster in an earlier relationship taken into account, arguing that these contributions should influence the division of their property following their breakup. The court was required to determine whether such contributions could be considered in the calculation of their property settlement.

The legal issues before the court were whether the contributions made by Foster in an earlier relationship were relevant to the assessment of the parties' property interests under section 20 of the Act, and if so, how these contributions should be quantified and weighted. The court needed to consider the principles established in previous cases such as *Re Dawson* and *Jones v Barnett*, which provide guidance on the types of contributions that can be taken into account and the methodology for assessing their value. Specifically, the court had to decide whether the contributions in question were of a nature that warranted inclusion in the property pool and whether they were made with the intention of benefiting the de facto relationship.

The court held that the contributions made by Foster in the earlier relationship could be considered in the adjustment of the parties' property interests. It found that these contributions, while not directly related to the de facto relationship, were of a nature that could be taken into account if they influenced the acquisition or maintenance of property that was later included in the pool for division. The court applied the principles of fairness and justice in determining the weight to be given to these contributions. Ultimately, it made an order for an adjustment of the parties' property interests, taking into account the contributions in the earlier relationship as well as other factors relevant to the division of property under the Act.

The court ordered that the property interests of Bowden and Foster be adjusted in accordance with the findings, with specific allocations made to reflect the contributions considered. The order detailed the division of assets and liabilities, reflecting the court's consideration of all relevant factors, including the contributions in the earlier relationship.

Orders