1. Appeal allowed. 2. Orders below set aside. 3. In lieu thereof, order that the appellant pay the respondent $97,000.00 with interest accruing from 11 April 2003, and appellant to pay the respondent's costs of the proceedings. 4. Respondent to pay the appellant's costs of the appeal, not extending to the costs of Senior Counsel, and to have a certificate under the Suitors' Fund Act if otherwise eligible.
CATCHWORDS:
FAMILY LAW - De facto relationships - Statutory power to make orders adjusting property interests of parties - Matters to be considered - Initial contributions of parties - Contributions during relationship - Relevance of both benefit and cost of contributions - Need for findings as to contributions - Sufficiency of reasons
Gary William Howlett - appellant Gail Maxine Neilson - respondent
FILE NUMBER(S):
CA 40942/03
COUNSEL:
Mr. P. Brereton SC with Mr. J.W. Hammond for appellant Mr. R.E. Quickenden for respondent
SOLICITORS:
Stephen Marks, Gorokan for appellant John Ryan, Toukley for respondent
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
DC 236/01 (Gosford)
LOWER COURTJUDICIAL OFFICER:
English DCJ
CA 40942/03 DC 236/01
HODGSON JA IPP JA McCOLL JA
Monday 9 May 2005
HOWLETT V. NEILSON
Headnote
FACTS A de facto relationship between the appellant and the respondent, lasting seventeen years and resulting in one child, ended in January 2000.
The initial contributions of the appellant and respondent were approximately $110,000 and $2,000, respectively. Included in the appellant’s assets was a house in Lake Munmorah where the parties resided. During the relationship the house was demolished and replaced by a newly constructed residence. The property was then sold in 2001 after the relationship ended, yielding a profit of $146,240.02.
The appellant was employed until 1987, and from 1988 conducted his own business with the assistance of the respondent. The respondent ceased being employed after the birth of their child, instead taking responsibility for care of the child and the household. She later undertook casual employment.
The primary judge found that the respondent brought minimal assets to the relationship, but that she had made significant contributions to the appellant’s business, to the building of the new house on the property and in the capacity of homemaker.
The primary judge valued the assets at $312,516.00, and found it just and equitable under s.20 of the Property…
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.
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Details
AGLC
Howlett v Neilson [2005] NSWCA 149
Case
[2005] NSWCA 149
Decision Date
CaseChat Overview and Summary
The appeal concerned property adjustment orders made in the context of a de facto relationship. The parties to the dispute were the appellant and the respondent. The court was required to determine whether the initial property adjustment orders made by the court below were sufficient and appropriate.
The central legal issues before the court were whether the judge below had adequately considered all relevant matters under the relevant legislation, particularly the initial contributions of the parties and their contributions during the relationship, taking into account both the benefit and cost of those contributions. The court also considered the sufficiency of the reasons provided by the judge in reaching their decision.
The Full Court found that the judge below had failed to make sufficient findings of fact regarding the contributions of both parties, both initially and during the relationship. This failure meant that the judge had not properly considered all the matters required by the statute, leading to an erroneous decision. Consequently, the appeal was allowed, and the original orders were set aside. In their place, the court ordered that the appellant pay the respondent $97,000.00 with interest from 11 April 2003, and that the appellant pay the respondent's costs of the proceedings below. The respondent was ordered to pay the appellant's costs of the appeal, with certain exclusions.
Orders
Orders of the court
1. Appeal allowed. 2. Orders below set aside. 3. In lieu thereof, order that the appellant pay the respondent $97,000.00 with interest accruing from 11 April 2003, and appellant to pay the respondent's costs of the proceedings. 4. Respondent to pay the appellant's costs of the appeal, not extending to the costs of Senior Counsel, and to have a certificate under the Suitors' Fund Act if otherwise eligible.