Carlisle v Harbach

[2010] TASSC 53

[2010] TASSC 53

COURT:                  SUPREME COURT OF TASMANIA

CITATION:              Carlisle v Harbach  [2010] TASSC 53

PARTIES:  CARLISLE, Davida Tiy
  v
  HARBACH, John

FILE NO/S:  241/2010
DELIVERED ON:  19 November 2010
DELIVERED AT:  Hobart
HEARING DATE:  19 November 2010
JUDGMENT OF:  Holt AsJ

CATCHWORDS:

Family law and child welfare – De facto relationships – Adjustment of property interests – Relevant considerations – Just and equitable.

Aust Dig Family Law and Child Welfare [496]

REPRESENTATION:

Counsel:
           Applicant:  D N Lewis
           Respondent:  No appearance
Solicitors:
           Applicant:  Walsh Day James Mihal
           Respondent:  Nil

Judgment Number:  [2010] TASSC 53
Number of paragraphs:  7

Serial No 53/2010
File No 241/2010

DAVIDA TIY CARLISLE v JOHN HARBACH

EDITED REASONS FOR JUDGMENT  HOLT AsJ
(DELIVERED ORALLY)  19 November 2010

1. The applicant is aged 28.  She lives with her mother and two year old son at Ulverstone.  She suffers from multiple sclerosis and is a disability pensioner.  She was in a relationship with the respondent for a little over four years between December 2004 and February 2009.  She has applied for an adjustive property order pursuant to the Relationships Act 2003.

1. The Relationships Act, s36, provides that a partner in a de facto relationship may apply to the court for an adjustment of interests with respect to property. Section 37 provides that the order may be made if the partners have been in a relationship for a continuous period of at least two years. Section 40 provides that the court may make any order which it considers to be just and equitable having regard to a number of specified matters. In broad terms the court is required to:

(a)      identify and value the property of the parties;

(b)identify and assess the value of the contributions made to the acquisition, conservation and improvement of that property; 

(c)consider other relevant matters such as whether a partner has the care of a child;  the financial needs and obligations of the partners;  the age and state of health of the partners and the length of the relationship;  and

(d)determine what order is just and equitable in the circumstances.

1. The respondent has not participated in the proceedings and so all of the evidence has come from the applicant.  The respondent lives and works in Queensland, but prompt personal service of the application could not be effected.  An order was made for substituted service by advertisement.  In accordance with the order an advertisement was published in the Sunday Mail newspaper in Queensland on 19 September 2010.  The advertisement gave notice of the claim and advised the respondent that if he wished to participate he was to file and serve a notice of appearance within 21 days.  It advised of the return time, date and place for the hearing of the application.  The respondent failed to file a notice of appearance and failed to present at the court at the appointed time. 

1. The only asset of significance is a house at West Ulverstone.  The house was purchased a few weeks before the end of the relationship.  The purchase price was $334,000.  The applicant's mother contributed $160,000.  The applicant contributed $56,834, being the balance of money paid to her out of her superannuation fund when she retired due to her ill health in September 2007.  The respondent contributed nothing.  The balance purchase price was obtained through a loan from the Commonwealth Bank.  The current balance of the loan is about $125,000.  The title is in the name of the applicant's mother, the applicant and the respondent as tenants in common.  The mother has two ¼ shares and the applicant and the respondent each have a ¼ share. 

1. The applicant has applied for an order for the transfer to her of the whole of the respondent's interest in the house.  The respondent not having participated at the hearing, no factors have been put forward which might support him being left with an interest.  It is just and equitable that the respondent's interest in the house should be transferred to the applicant. 

1. The ordinary practice in this court is to award costs to the successful party.  There will be an order accordingly.

1. These are the orders:

(1)The respondent's share in the property comprised in certificate of title volume 60429 folio 57 is to be transferred to the applicant.

(2)The Registrar of the Court is appointed to execute the transfer in the name of the respondent.

(3)In the event that the applicant does not secure a release for the respondent from his personal obligations under mortgage C898547 she is to indemnify him against such obligations.

(4)Except as otherwise specified in these orders any claim which a party may have in respect of property, or for money, against the other party is extinguished. 

(5)The respondent is to pay the applicant's taxed costs of the proceedings.