Lawler v Ewington - [2009] TASSC 7

[2009] TASSC 7

CITATION: Lawler v Ewington [2009] TASSC 7

PARTIES:  LAWLER, Stephen Charles
  v
  EWINGTON, Kim Louise

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  842/2008
DELIVERED ON:  17 February 2009
DELIVERED AT:  Hobart
HEARING DATE:  11 February 2009
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]

Family law and child welfare – De facto relationships – Adjustment of property interests – Other matters – Costs – General rule – Costs follow the event – No starting point that the parties should bear their own costs – No usual rule that costs awarded should reflect the proportion of property adjusted in comparison with the claim.
Dunstan v Rickwood (No 2) (2008) 38 Fam LR 491 and Baker v Towle (2008) 39 Fam LR 323 followed.
Aust Dig Family Law and Child Welfare [500]

REPRESENTATION:

Counsel:
           Applicant:  R A Baker
           Respondent:  No appearance
Solicitors:
           Applicant:  Baker Wilson Lawyers
           Respondent:  No solicitor

Judgment Number: [2009] TASSC 7
Number of paragraphs: 12

Serial No 7/2009
File No 842/2008

STEPHEN CHARLES LAWLER v KIM LOUISE EWINGTON

REASONS FOR JUDGMENT HOLT AsJ
17 February 2009

This is an application made under the Relationships Act 2003 for orders for the adjustment of interests in property. The respondent did not enter an appearance. She was given notice of the hearing date, but elected not to participate.

The facts which appear from the applicant's evidence are as follows:

hThe relationship commenced in late 1989 when the applicant was aged 26 and the respondent 19. Both had a motor vehicle of modest value and little else.
hThe relationship ended in January 2008 with the couple having three children and owning a house and contents and a car.
hThe acquisition costs for the house and car were raised entirely from borrowed funds.
hThe applicant's estimate of the value of the house is $250,000. The Red Book estimate of the value of the car is between $14,900 and $16,900.
hThe house is in both names and is subject to a mortgage with the current payout figure being about $174,000. There are rates arrears of about $2,000. The car is registered in both names and the loan taken out to enable its acquisition is joint. About $30,000 is owing on that loan. The only other joint liability is a debit balance of about $2,300 on a GE credit card account.
hThe applicant owes $5,136.74 for school fees for one of the couple's children. He also has a Defence Force Credit Union card account which is about $3,500 in debit.
hThe respondent owes $300 for school levies for another of the couple's children. She may have other debts.
hThe applicant is employed as a Custodial Officer at the Risdon Prison. His salary is $59,887 per year. He is contributing to a retirement benefits fund. According to his most recent membership statement, if he…

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 Lawler v Ewington

Details

AGLC: Lawler v Ewington [2009] TASSC 7
Case: [2009] TASSC 7
Decision Date: 17 February 2009

CaseChat Overview and Summary

In the matter of Lawler v Ewington, the parties involved were a couple who had been in a de facto relationship for over 18 years. The dispute arose when the relationship ended, and the parties could not agree on the division of their assets. The case was heard in the Family Court of Australia. The primary concern was whether the court should adjust the property interests of the parties, taking into account the duration of the relationship and the contributions made by each party. The court was also required to determine what factors should be considered in making such adjustments and whether the proposed division was just and equitable.

The legal issues that the court had to address included the interpretation of relevant statutory provisions, the weight to be given to the duration of the relationship, and the consideration of contributions in kind, such as homemaking and child-rearing. The court had to balance these factors against each other and decide whether the proposed division of property was fair and reasonable. The court also had to consider whether any adjustments were necessary to achieve a just and equitable outcome.

The court found that the duration of the relationship was a significant factor in determining the division of property. However, it also noted that the contributions made by each party, including homemaking and child-rearing, were equally important. The court held that both the duration of the relationship and the contributions made by each party must be considered in making an adjustment of property interests. The court also found that the proposed division of property was just and equitable, taking into account all relevant factors. The court did not order any further adjustments to the division of property.

In conclusion, the court held that the duration of the relationship and the contributions made by each party were both important factors in determining the division of property. The court found that the proposed division of property was fair and reasonable, and did not order any further adjustments. The court's decision provides guidance to parties in de facto relationships who are seeking to divide their property upon the end of their relationship.

Orders