Constable v Bell - [2006] NSWSC 45

CITATION: Constable v Bell [2006] NSWSC 45

HEARING DATE(S): 02 & 03/02/06

JUDGMENT DATE :
6 February 2006

JURISDICTION: Equity Division

JUDGMENT OF: White J

DECISION: See para 78 of judgment.

CATCHWORDS: FAMILY LAW - De Facto relationships - Adjusting order under s 20(1) of Property (Relationships) Act, 1984 - 20 year relationship - De facto wife had primary role as homemaker and parent - Almost all assets in de facto husband's name - Contribution to his business - Lump sum ordered - No question of principle.

LEGISLATION CITED: Property (Relationships) Act 1984 (NSW)

CASES CITED: Evans v Marmont (1997) 42 NSWLR 70
Chanter v Catts [2005] NSWCA 411
Federal Commissioner of Taxation v Murry (1998) 193 CLR 605
Dowrick v Sissons (1996) 20 Fam LR 466
Howlett v Neilson (2005) 33 Fam LR 402

PARTIES: Kim Beverly Constable
v
Mark William Bell

FILE NUMBER(S): SC 4853/04

COUNSEL: Plaintiff: G Hansen
Defendant: P Campton

SOLICITORS: Plaintiff: Browns Family Lawyers
Defendant: Martin Bullock Lawyers

- 23 -

-IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Monday, 6 February 2006

4853/04 Kim Beverly Constable v Mark William Bell

JUDGMENT

1 HIS HONOUR: This is an application by both parties for orders under s 20 of the Property (Relationships) Act 1984 (NSW).

2 Ms Constable and Mr Bell were in a de facto relationship for twenty years from 1984 to 2004. They have one child, Samantha, born in 1989. Except for a brief period, Ms Constable was not employed. She had the primary responsibility of homemaker during the course of the relationship and had the primary care of Samantha. Mr Bell worked in a number of jobs and in his own publishing business up to 2001. First as a hobby, and by 2000, as a business, he bred, trained and raced greyhounds. This business was conducted from the parties' home. He received considerable assistance from Ms Constable in this work.

3 The principal assets of the parties are two pieces of real estate owned by Mr Bell. One is the family home at 145 Eighth Avenue, Austral, which has an agreed value of $1,150,000. It is unencumbered. The other is an investment property at 133 Wanawong Street, Belimba Park, which has an agreed value of $500,000 and is subject to a mortgage of $67,991.

4 The defendant acquired these properties as a result of a long series of real estate transactions from before 1984 and up to 2001. He financed these real estate transactions from his initial savings, from a workers' compensation payout he received in 1986 or 1987, through his servicing of borrowings, and from the proceeds of earlier property sales.

5 Subsection 20 (1) of the Act provides:

“20 Application for adjustment

(1) On an application by a party to a domestic relationship for an order under this Part to adjust interests with respect to the property of the parties to the relationship or either of them, a court may make such order adjusting the interests…

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 Constable v Bell

Details

AGLC: Constable v Bell [2006] NSWSC 45
Case: [2006] NSWSC 45
Decision Date: 6 February 2006

CaseChat Overview and Summary

The matter of Constable v Bell involved a dispute between the parties regarding the division of assets following the termination of their de facto relationship. The case was heard in the Family Court of Australia. The primary issue before the court was whether an adjusting order under section 20(1) of the Property (Relationships) Act 1984 was appropriate in light of the de facto wife's significant contributions to the relationship and her de facto husband's business, despite the majority of assets being held in his name.

The court had to consider the length and nature of the relationship, the role of the de facto wife as a homemaker and parent, and her contributions to the de facto husband's business. It also needed to determine whether an order for an adjusting payment was warranted and, if so, the amount and form of such payment. The court's task was to balance the statutory presumption of equal sharing of property with the actual contributions made by each party during the relationship.

In delivering the judgment, the court recognised the de facto wife's substantial role in the relationship, acknowledging her contributions as a homemaker and parent, as well as her indirect contributions to the de facto husband's business. The court found that despite the statutory presumption of equal sharing, an adjusting order was necessary to address the disparity between the parties' contributions and the distribution of assets. The court ordered a lump sum payment to the de facto wife, which it deemed appropriate given the circumstances. The decision affirmed that such an order was not a matter of principle but rather a matter of ensuring just and equitable outcomes in the division of property following the end of a de facto relationship.

Orders