Gerwien v Doyle - [2008] NSWSC 938

CITATION: Gerwien v Doyle [2008] NSWSC 938

HEARING DATE(S): 04/08/08, 05,08/08

JUDGMENT DATE :
12 September 2008

JURISDICTION: Equity Division

JUDGMENT OF: Macready AsJ at 1

DECISION: Paragraph 38

CATCHWORDS: Family Law. Application for adjustment of property interests under s 20 of the Property (Relationships) Act 1984. Short relationship with no children. Order for adjustment made.

PARTIES: Ronald Gerwien v Josephine Mary Doyle

FILE NUMBER(S): SC 5509/06

COUNSEL: Mr S Burchett for plaintiff
Mr D Dura for defendant

SOLICITORS: Manfred Dougall & Company
Galland Elder Lulham for defemdamt

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

FRIDAY 12 SEPTEMBER 2008

5509/06 RONALD GERWIEN v JOSEPHINE MARY DOYLE

JUDGMENT

1 HIS HONOUR: This is an application under the Property (Relationships) Act 1984 (NSW) in which the parties seek an order under s 20 of the Act for the adjustment of their property interests. The parties although having known each other a little earlier commenced a de facto relationship on 30 November 2003 which continued until the parties separated in March 2006. There were no children of the relationship.

Chronology

2 The defendant was born in May 1957 and is now aged 51 years. The plaintiff was born in July 1957 and is now aged 51 years. Since 1987 the defendant had been employed with Department of Defence as a programme modeller. In 1991 he purchased a property at Mackay Place, Gowrie in Canberra for $135,090.

3 In August 2001 the defendant sold a house in Dewhurst Sreet, Goulburn and purchased another property at Kinghorne Street, Goulburn for $112,500. In July 2001 the parties first met and commenced a relationship. They would spend time together at weekends at one or other of their homes.

4 On 1 August 2002 the plaintiff suffered neck injury and was off work until 3 December 2003. In June 2003 the plaintiff commenced working on some alterations to the defendant’s home. This consisted of a pergola, a deck and a fence. At this stage the defendant’s daughter Aisha had been living with her mother and she moved out in July of that year. At the time of the commencement of the relationship or shortly before the defendant gave her car to her daughter.

5 As mentioned the parties moved to live together in the defendant’s home in Goulburn on 30 November 2003. On 3 December 2003 the plaintiff returned to work initially for 3 days a week.

6 In August 2004 the defendant decided to renovate her Goulburn house. At that time she had a mortgage for $96,000 on the property which was in her name. The parties approached the National Bank and a new mortgage was taken out for $126,000 in which the plaintiff was also a party. Out of the additional funds $6,400 was paid off the plaintiff’s credit cards and the balance appears to have been used by the defendant for the renovations.

7 At about this time the defendant was approached by a real estate…

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 Gerwien v Doyle

Details

AGLC: Gerwien v Doyle [2008] NSWSC 938
Case: [2008] NSWSC 938
Decision Date: 12 September 2008

CaseChat Overview and Summary

In the matter of Gerwien v Doyle, the respondent, Gerwien, made an application under section 20 of the Property (Relationships) Act 1984 to the Family Court of Australia. Gerwien sought an adjustment of property interests following the cessation of a de facto relationship with Doyle. The relationship, which lasted for two years, produced no children. The primary dispute centred on the equitable division of property accumulated during the relationship.

The legal issues before the court included the determination of the appropriate weighting to give to the contributions of the parties, both financial and non-financial, towards the acquisition and maintenance of their property. The court was also tasked with considering the duration of the relationship, which was relatively short, in the context of the overall equitable principles applicable to de facto relationships. The court needed to balance the statutory framework with the specific circumstances of the relationship, including the absence of children.

The court found that while the relationship was of a short duration, the contributions of both parties to the property needed to be assessed comprehensively. In the end, the court concluded that an adjustment of property interests was warranted. The court ordered that certain assets be adjusted between the parties, taking into account the overall fairness and equity of the division. The court emphasised that the absence of children did not preclude an adjustment of property interests but was one factor among others to consider in achieving a fair outcome. The final orders reflected a division of assets that the court deemed equitable, considering the unique circumstances of the relationship and the contributions of both parties.

Orders