Lawler v Ewington
[2009] TASSC 7
•17 February 2009
[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 retires at age 60, his estimated benefit will be $352,280.
hThe respondent was employed as a police officer between 1990 and 1993. She was not in work between 1994 and 2003. In 2003 she obtained some part-time work as a shop assistant. A few years later she obtained employment with St John's Ambulance and then in August 2007 she commenced work as a customer service representative with Vodafone. According to a recent Child Support assessment her present taxable income is $35,327 per year.
hThe children of the relationship are aged 17, 13 and 12. The middle child resides with the applicant and the other two with the respondent. The net result of the Child Support Agency assessment, after a set-off for the child in the applicant's custody, is that the applicant must pay to the respondent $96.67 per week.
hAt the time of separation the couple agreed that the respondent would continue to occupy the house. It was agreed that the applicant's interest in the house would be transferred to the respondent and the mortgage put into her name alone. In short, if she took over the mortgage she could have the equity in the house.
hAfter separation the applicant continued to pay money into the bank account from which the fortnightly mortgage payments of $569 and the fortnightly car payments of $389.94 were direct debited. The respondent continued to have access to that account. The last payment which the applicant made was on 1 April 2008. Between the date of separation being 24 January 2008 and 1 April 2008 the applicant paid into the account $4,400.
hThe house and mortgage have not been put into the respondent's name. She has not maintained the mortgage payments. On 19 January 2009 the bank issued a notice advising that unless arrears of $3,357 are cleared by the end of February the bank will be entitled to demand immediate repayment of the entire loan balance and in default take possession of the house and sell it. The house appears to be falling into disrepair.
hSince separation the car has been in the sole possession of the applicant. It was purchased second hand in August 2007 and $36,238.75 was borrowed for the purpose. The applicant has been maintaining the car repayments.
The applicant has revised his position so far as the respondent keeping the equity in the house is concerned. His application filed with the Court is in terms that the respondent keep the contents, but the house be sold with the proceeds being applied firstly to the mortgage and sale expenses; secondly, to pay about $30,000 needed to extinguish the car loan and, thirdly, to divide the rest equally between the parties. In the balance of the application orders are sought requiring the respondent to transfer the car to the applicant and to pay his costs of the legal proceedings with the applicant paying the GE credit card joint debt.
The jurisdiction under the Act to make orders for the adjustment of interests in property (other than by consent orders) is constrained by s40 to such orders as the Court considers to be just and equitable having regard to a number of matters specified in the Act and any other facts or circumstances which the Court considers to be relevant.
Consideration of the respective contributions and resources is necessary. There is no assertion by the applicant that his contributions to the assets and to the family over the 18 years of the relationship should be valued more highly than those of the respondent. The fact, however, that throughout the relationship the applicant has remained in steady employment has resulted in him being significantly better resourced than the respondent who has had the duties of homemaker and parent to undertake. The applicant earns approximately double the income of the respondent. There is no suggestion that he lacks a secure employment future. He has superannuation arrangements in place. On the other hand, the respondent has not had the benefit of continuous employment. She did not work between 1994 and 2003. She has only been in her employment with Vodafone for about 18 months. I infer that her retirement savings are far less than those of the applicant.
Having regard to these matters I consider that two alterations are appropriate to make the proposed orders fair. Firstly, the applicant should pay for the car which he proposes to keep and, secondly, his obligation to pay the school fees should be shared.
I do not consider it to be just and equitable that the debt due on the car should be paid out of joint funds following the sale of the house with the applicant keeping the car. This is especially so, as although the car is in joint names and the debt is in joint names, the applicant has treated the car as his own since separation.
I think that it is just and equitable that the outstanding school fees and levies should come from joint funds. The fees per term were about $300 and so the overdue balance which is in excess of $5,000 represents many years of default. If the fees were paid when they should have been they would have been part of the ordinary expenses of the couple. Requiring the payment now out of the joint proceeds of the sale of the house also gives to the applicant some credit for the payments which he made between the date of separation and 1 April 2008 which benefited the respondent. It additionally provides to the applicant some offset for the liability for the car which I will order shall be borne by him alone and for the advantage which the respondent has enjoyed by continuing to occupy the house whilst the mortgage fell into arrears.
That just leaves the question of the costs of the application. The Act s68 provides: "A court may make any order for costs it considers appropriate." There is a substantial difference between this provision and s117 of the Family Law Act 1975 (Cth). The latter provides that subject to some exceptions the parties are to bear their own costs. In this Court the practice is that ordinarily costs will follow the event. See Hardman v Ward (2004) 13 Tas R 134. There is no starting position in Relationships Act matters that ordinarily the parties should bear their own costs. In the New South Wales Court of Appeal in Dunstan v Rickwood(No 2) (2008) 38 Fam LR 491, McColl JA, with whom Beazley JA and Ipp JA agreed, rejected such a proposition. She said at par37:
"… it was not open to his Honour to engraft onto the discretion … a condition moulded on s117 and drawn from another jurisdiction. This is especially so, in my view, where this state has not seen fit to adopt a provision like s117 to deal with applications under the Act, notwithstanding the co-existence for more than two decades of what I accept are similar jurisdictions in relation to the adjustment of property interests between those in personal relationships.
There is no reason why an observation of Beazley JA, with whom Mathews AJA agreed, made in the New South Wales Court of Appeal should not apply in Tasmania. Her Honour said in Baker v Towle (2008) 39 Fam LR 323 at par9:
"… I should state that I do not consider that there is a 'usual rule' that an award of costs in applications made under the Property (Relationships) Act should reflect the proportion of interests in property that were adjusted in comparison with the claim."
The applicant has been substantially successful in his application for orders adjusting the property interests of the parties. There are no circumstances to justify taking the matter outside the ordinary rule as to costs. The costs should follow the event. There will be an order that the respondent pay the applicant's costs of the proceedings.
These will be the orders:
(1)Within 60 days of the personal service of this order upon her the respondent is to vacate the premises at 64 Bangalee Street, Lauderdale ("the property").
(2)The respondent has liberty to apply for an extension of the time allowed for giving possession.
(3)The property is to be sold.
(4)The parties have liberty to apply generally for such orders or directions as may be necessary or convenient to give effect to the order that the property sold.
(5)The proceeds of the sale are to be divided equally between the parties after payment of the mortgage, the rates, the expenses of sale (including, but not limited to the real estate agent's commission and lawyer's conveyancing charges) and after payment of $5,136.74 to John Paul II School at Rokeby and $300 to Rosny College.
(6)The applicant is to bear responsibility for and indemnify the respondent against the obligations under the Esanda Finance Corporation Ltd loan contract No 753279878 in respect of the red Holden Commodore SS VY sedan registered No EU 3906 and the GE Credit Line card account No 5039468221745808.
(7)The respondent is to transfer her interest in the Holden sedan to the applicant and for that purpose is to execute all necessary transfer documents and deliver them to the applicant within seven days of the applicant submitting such documentation to her.
(8)Except as otherwise specified in these orders any interest which a party may have in property in the possession of the other party at the date of these orders is extinguished.
(9)The respondent is to pay the applicant's taxed costs of the proceedings.