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Bowling v Bowling

Bowling v Bowling

Case [2011] NSWSC 1168 7 December 2011

Property Settlement

De Facto Relationship

Erosion Principle

Family Law

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Supreme Court

New South Wales

Medium Neutral Citation: Bowling v Bowling [2011] NSWSC 1168
Hearing dates: 28/09/2011, 29/09/2011
Decision date: 07 December 2011
Jurisdiction: Equity Division
Before: Associate Justice Macready
Decision:
Order for adjustment made (see Orders)

Catchwords: FAMILY LAW - application for adjustment of parties' property interests pursuant to s 20 of the Property (Relationships) Act 1984 - de facto relationship of fifteen years - initial asset introduced by plaintiff who seeks to retain its fully appreciated value - discussion of "erosion principle" - defendant bankrupt at commencement of relationship - order made for adjustment.
Legislation Cited: Property (Relationships) Act 1984
Cases Cited: Baker v Towle [2008] NSWCA 73
Beavan v Fallshaw (1992) 15 Fam L R 686
Bilous v Mudaliar [2006] NSWCA 38; 65 NSWLR 615
Black v Black (1991) 15 Fam LR 109
Evans v Marmont (1997) 42 NSWLR 70 at 74
Howlett v Neilson [2005] NSWCA 149
Jensen v Ray [2011] NSWCA 247
Kardos v Sarbutt [2006] NSWCA 11
Manns v Kennedy [2007] NSWCA 217
Norbis v Norbis (1985-1986) 161 CLR 513
Powell v Supresencia [2003] NSWCA 195
Selmore v Bull [2005] NSWCA 365
Separovich v Ferrao [2011] NSWCA 180
Wendt v Wood [2011] NSWSC 781
Zhong v Huang [2010] NSWSC 49
Category: Principal judgment
Parties: Judith Dianne Bowling (plaintiff)
Darryl Richard Bowling (defendant)
Representation: Counsel:
Mr A Paterson (plaintiff)
Richard Schonell SC (defendant)
Solicitors:
Friend & Company Lawyers (plaintiff)
Paltos Briggs Family Lawyers (defendant)

File Number(s): 00267244/2010

Judgment

This is an application under section 20 of the Property (Relationships) Act 1984 for an adjustment of the parties' property interests. The parties, Darryl Bowling and Judith Bowling lived in a de facto relationship which commenced in 1991 or 1992 and ended when they separated in May 2007. The parties had five children as a result of their relationship, one of whom died shortly after birth. Darryl had three children from previous relationships who did not live with the parties during the time of their relationship. Judith had a son, Damion Ward, from a previous relationship who was about 13 years of age at the commencement of the relationship. Damion lived with the parties until 1995.

Background history

Darryl Bowling was born in May 1944 and Judith Bowling was born in November 1958. Judith's child Damion was born in April 1978.

In 1988 Judith purchased vacant land at North Avoca using funds from her mother, Norma Odlum. She engaged a builder who commenced building a dwelling on the land.

In October 1988 Darryl was declared bankrupt. In April 1990 the builder engaged by Judith died and construction of the dwelling ceased. Various claims were made on the Building Services Corporation.

In early 1991 the parties met in Sydney. They lived together at Judith's mother's house for a short time in May 1991 and in the same month they leased premises at Seaview Street, Balgowlah. In early 1992 they leased a premises at Bilbette Place, Frenchs Forest.

Jarrad Bowling, their son, was born in December 1992.

In…

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 Bowling v Bowling

Details

AGLC: Bowling v Bowling [2011] NSWSC 1168
Case: [2011] NSWSC 1168
Decision Date: 07 December 2011

CaseChat Overview and Summary

In the Family Court of Australia, the case of Bowling v Bowling involved a dispute over the adjustment of property interests between former de facto partners. The plaintiff sought to retain the fully appreciated value of an asset introduced into the relationship, which had lasted fifteen years. The defendant, who had become bankrupt at the commencement of the relationship, opposed the plaintiff's claim. The court was required to consider the application under section 20 of the Property (Relationships) Act 1984, focusing on the equitable principles that might apply to the division of property acquired during a de facto relationship.

The central legal issue was the application of the so-called "erosion principle," which pertains to the preservation of assets introduced into a relationship by one party. The court had to determine whether the plaintiff was entitled to retain the full value of the asset in question, considering the length of the relationship and the contributions made by both parties. The court also needed to evaluate the impact of the defendant's bankruptcy on the equitable division of the property.

The court found in favour of the plaintiff, acknowledging the significant length of the relationship and the initial contribution of the asset by the plaintiff. The court held that the erosion principle applied in this case, allowing the plaintiff to retain the fully appreciated value of the asset. The court emphasised the importance of equitable considerations in determining the adjustment of property interests in de facto relationships. The court's decision reflected a balanced approach to the parties' contributions and the equitable outcome that was just in the circumstances.

The final order granted the plaintiff the right to retain the fully appreciated value of the asset, with specific directions regarding the division of other property and liabilities between the parties. The court's decision provided clarity on the application of the erosion principle and the weight given to initial contributions in de facto property settlements.

Orders