Palmer v Thorne
[2010] TASSC 44
•6 October 2010
[2010] TASSC 44
COURT: SUPREME COURT OF TASMANIA
CITATION: Palmer v Thorne [2010] TASSC 44
PARTIES: PALMER, Beverley Dawn
v
THORNE, Michael
FILE NO: 956/2008
DELIVERED ON: 6 October 2010
DELIVERED AT: Hobart
HEARING DATE: 6 October 2010
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]
REPRESENTATION:
Counsel:
Applicant: T J McKenna
Respondent: No appearance
Solicitors:
Applicant: Dobson Mitchell & Allport
Respondent: Nil
Judgment Number: [2010] TASSC 44
Number of paragraphs: 13
Serial No 44/2010
File No 956/2008
BEVERLEY DAWN PALMER v MICHAEL THORNE
REASONS FOR JUDGMENT HOLT AsJ
6 October 2010
The applicant has applied for an adjustive property order under the Relationships Act 2003.
The respondent was given notice that the applicant claimed the sum of $85,000, with the funds, if necessary, to be raised by the sale of the respondent's house at Dunalley. The respondent did not attend the hearing and so there was no factual dispute and no resistance to the order sought.
The following facts appear from the applicant's affidavits and a financial statement filed on behalf of the respondent dated February 2009.
§The couple commenced cohabitation in 1984 when the applicant was aged 22 years and the respondent was aged about 24 years.
§There are two children of the relationship currently aged 14 years and 16 years.
§The couple separated in January 2005.
§The applicant has custody of the children with the respondent having access at least every second weekend.
§The applicant suffers from chronic arthritis and is a disability pensioner.
§At the commencement of the relationship the partners had negligible assets.
§The applicant's only asset is a car worth about $2,000. She has a credit card debt of about $3,500. She has superannuation savings having a value of about $7,500.
§The respondent owns a house at 32 Booth Street, Dunalley, which in June 2009 was valued at $175,000. As at the date of his financial statement he owed a Toyota land cruiser motor vehicle worth about $11,000. He had personal loans totalling about $13,500. His superannuation savings had a value of about $52,000. He had a rates debt of about $3,000 and a tax debt of about $7,400. He was also indebted to his father in a sum of about $33,000, being the unpaid balance of the purchase price, including interest, for the Booth Street house.
§The Booth Street house was the home of the couple during the entire period of cohabitation. It had been owed by the respondent's father. In 1992 he sold it to the respondent for $48,000 to be paid by instalments. In 2002, notwithstanding that the instalments had not been paid, the house was transferred into the sole name of the respondent. The respondent and his father agreed at that time that the balance owing was $25,000. The applicant has paid $4,000 to the respondent to assist him in paying his father. She has also spent about $7,000 for house improvements and maintenance.
§In 1994 the respondent's employment was terminated. For most of the rest of the period of the relationship the applicant was the major income earner. She also did most of the parenting, housework and cooking.
The Relationships Act, s36(1), provides that a partner may apply to the court for an order for the adjustment of interests with respect to the property of either or both of the partners. Section 37(1) provides that an order may be made if the partners have been in a personal relationship for a continuous period of not less than two years. Section 38 provides that a property adjustment application is to be made within two years of the end of the relationship unless the court grants leave for it to be made outside that time. The discretion to grant leave, however, does not arise unless the court is satisfied that greater hardship would be caused to the applicant if leave were not granted than would be caused to the respondent if leave were granted.
I do not need to recite the detail of the Act. It is obvious that the parties were partners in a personal relationship for a continuous period of not less than two years. The only impediment to the bringing of the application is time. Although the relationship ended in January 2005 the court proceedings were not filed until October 2008.
There will be an order granting leave for the bringing of the application. The applicant has a viable case and, accordingly, will suffer hardship if she is not permitted to pursue her claim. There is no claim by the respondent that he will suffer hardship if leave to pursue the claim is granted. Although the applicant has not explained why proceedings were not commenced within time, I am satisfied that the justice of the case rests with the grant of leave. I have no reason to think that the belated commencement of the proceedings has or will cause to the respondent any oppression or prejudice. Because no consequence adverse to the respondent has been caused by delay I attach little weight to the fact that it has not been explained. In addition, in March 2009 when the respondent was represented by solicitors, an indication was given by those solicitors that the respondent would consent to an order granting leave.
The major asset is the Booth Street house. It is worth about $175,000. It appears that there may be about $33,000 still owing to the respondent's father. Assuming this to be so, the respondent's net equity in the house is about $142,000.
Since the contract to purchase the house was executed in 1992, the balance of the purchase price has only been reduced by about $15,000. The applicant has contributed $4,000 to this reduction. She has also made financial contributions to its improvement and contributions as homemaker. She should have an adjustive property order in respect of this asset.
The Act, s40(1) and s47(2) are as follows:
"40 Order for adjustment
(1) On an application by a partner for an order for the adjustment of interests in respect of the property of either or both the partners, a court may make any order it considers just and equitable having regard to –
(a) the financial and non-financial contributions made directly or indirectly by or on behalf of either or both of the partners to the acquisition, conservation or improvement of any of the property; and
(b) the financial resources of either or both of the partners; and
(c) the contributions, including any contributions made in the capacity of homemaker or parent, made by a partner to the welfare of the other partner or to the welfare of the family constituted by the partners and one or more of –
(i) a child of the partners; or
(ii) a child accepted by either or both the partners into the household of the partners, whether or not the child is a child of either of the partners; and
(d) the nature and duration of the relationship; and
(e) any relevant matter mentioned in section 47.
47 Order for maintenance
…
(2) In determining whether to make the order and in fixing any amount to be paid under the order, a court is to have regard to the following:
(a) the income, property and financial resources of each partner (including the rate of any pension, allowance or benefit paid, payable or entitled to be paid to either partner) and the physical and mental capacity of each partner for appropriate gainful employment;
(b) the financial needs and obligations of each partner;
(c) the responsibilities of either partner to support any other person;
(d) the terms of any order made or proposed to be made under section 40;
(e) any payments provided for the maintenance of a child in the care and control of either partner;
(f) whether either partner has the care and control of a child of the partner who is under 18;
(g) the age and state of health of each partner;
(h) the standard of living that is reasonable for each partner in all the circumstances;
(i) the extent to which the payment of maintenance to the partner whose maintenance is under consideration would increase the earning capacity of the partner by enabling the partner –
(i) to undertake a course of education or training; or
(ii) to establish a business; or
(iii) otherwise to obtain adequate income;
(j) the extent to which the partner whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other partner;
(k) the length of the personal relationship;
(l) the extent to which the personal relationship has affected the earning capacity of the partner whose maintenance is under consideration;
(m) any other fact or circumstances the court considers relevant."
The court is required to make a holistic value judgment in the exercise of a discretionary power of a very general kind: Kardos v Sarbutt (2006) NSWCA 11 at 36. The Relationships Act, s40, has its equivalent in the Family Law Act 1975 (Cth), s79. As counsel for the applicant pointed out, guidance as to the approach to an application for an order adjusting property interests can be found in decisions under the Family Law Act. In particular, he referred to the following passage contained in the judgment of the Full Court in Hickey v Hickey [2003] FLC 93–143 at 39:
"The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s79. That approach involves four inter-related steps. Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters referred to in ss79(4)(d), (e), (f) and (g), ('the other factors') including, because of s79(4)(e), the matters referred to in s75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case: Lee Steere and Lee Steere (1985) FLC 91-626; Ferraro and Ferraro (1993) FLC 92-35; Davut and Raif (1994) FLC 92-503; Prpic and Prpic (1995) FLC 92-574; Clauson and Clauson(1995 FLC 92-595; Townsend and Townsend (1995) FLC 92-569; Biltoft and Biltoft (1995)FLC 92-614; McLay and McLay (1996) FLC 92-667; JEJ and DDF (2001) FLC 93-075 and Phillips and Phillips (2002) FLC 93-104."
In considering whether the adjustment sought by the applicant is just and equitable, I take into account the applicant's contributions to the acquisition, conservation and improvement of the house. She Contributed $4,000 to the repayment of the purchase price and about $7,000 to maintenance and improvement. She was by far the major contributor as homemaker. Even assuming that the respondent was the major contributor to the reduction of the loan from his father, I assess the applicant's contributions as being at least equal to those of the respondent. In addition, I take into account that the applicant has made, by far, the major contribution to the family as parent. I also take into account that she suffers from chronic arthritis and is dependent upon a disability pension for her income. She has no savings and her only asset is a car worth about $2,000. She has had the custody of the couple's two children since January 2005. The relationship was lengthy. It is just and equitable that she should have 60% of the net equity in the home. As I have said, based upon the valuation and the respondent's February 2009 financial statement, the net equity is $142,000. 60% of this, rounded off, is $85,000. The respondent did not appear at the hearing to oppose the applicant's claim for a payment to her of $85,000. The application for the payment should be granted.
These are the orders:
(1) The applicant has leave to bring the application.
(2) Within 28 days the respondent is to pay to the applicant the sum of $85,000.
(3)In the event that the sum of $85,000 is not paid within 28 days the property at 32 Booth Street, Dunalley, is to be sold in order to raise the necessary funds to enable the respondent to make the payment.
(4)The applicant has liberty to apply for such orders and directions as may be necessary or convenient to effect the sale of the property and the payment to her of the sum of $85,000 including orders requiring the respondent to give vacant possession during the marketing process and authorising an officer of the court to execute all such deeds and instruments in the name of the respondent as may be appropriate.
I will hear any application for an order as to the costs of the proceedings on notice to the respondent.
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