Powell v Supresencia

Case [2003] NSWCA 195

NEW SOUTH WALES COURT OF APPEAL

CITATION:      POWELL v SUPRESENCIA [2003]  NSWCA 195

FILE NUMBER(S):
40798/02

HEARING DATE(S):               19 June 2003

JUDGMENT DATE: 18/07/2003

PARTIES:
Murray Norman Powell - Appellant
Nenita Sabrin Supresencia - Respondent

JUDGMENT OF:       Sheller JA Tobias JA Einstein J   

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S):          SC 3991/01

LOWER COURT JUDICIAL OFFICER:     Berecry AM

COUNSEL:
R C McDougall QC/M T Bridger - Appellant
P Hallen SC/T L P Hodgson - Respondent

SOLICITORS:
Jack Rigg - Appellant
Keddies - Respondent

CATCHWORDS:
Family Law - De facto relationships - Statutory power to make orders adjusting property interests of parties - Matters to be considered in making adjustments - Property inherited by one party shortly before separation - Property (Relationships) Act 1984 s20

LEGISLATION CITED:
De Facto (Relationships) Act 1984
Family Law Act 1975 (Cth)
Property (Relationships) Act 1984

DECISION:
1  Appeal allowed
2  Set aside order 1 made by Acting Master Berecry on 30 August 2002 
3  In lieu thereof the defendant to pay the plaintiff the sum of $616,000 and upon payment, the defendant be declared the owner of all property presently registered in his name or possessed by him
4  Confirm orders 2 and 3 made by Acting Master Berecry on 30 August 2002
5  The respondent to pay the appellant's costs of the appeal but to have a certificate under the Suitors' Fund Act 1951
6  The respondent's application for maintenance under s27 of the Act is remitted to the Equity Division for further consideration on the application of the respondent, if so advised.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40798/02
SC 3991/01

SHELLER JA
TOBIAS JA
EINSTEIN J

POWELL v SUPRESENCIA

Proceedings were brought by the respondent under the Property (Relationships) Act 1984. The Acting Master at first instance made orders in favour of the respondent pursuant to s20 of that Act. No orders for maintenance were made.

The respondent had made significant contributions as a homemaker and parent to the son of the parties.  Her assets, however, were of little value and she had not made any financial contributions to the relationship during its course.  Her evidence was that the appellant had not wanted her to work or to mix with other Philippino people in Australia or have contact with her family after the couple moved to Australia from the Philippines.  As a result she was not able to develop social and work skills in Australia and, when the relationship dissolved, was left ill-equipped to support herself and with meagre resources.  She took with her $134,000 worth of jewellery, much of which she sold or pawned to support herself.

The Acting Master made much of the fact that most of the financial contributions had been made by the appellant’s mother, who had given the appellant a weekly allowance and jewellery from time to time, made much.  The appellant’s mother had died some three years before the end of the relationship, leaving…

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AGLC
Powell v Supresencia [2003] NSWCA 195
Case
[2003] NSWCA 195
Decision Date

CaseChat Overview and Summary

This case concerned an appeal from orders made by an Acting Master concerning the property adjustment of parties in a de facto relationship. The parties, the respondent (born 1956) and the appellant (born 1925), met in the Philippines in 1980 and commenced a de facto relationship. The respondent ceased working at the appellant's request to care for him and their son, born in 1981. The parties lived in the Philippines until 1987, when they moved to Australia and resided in a rented flat for eleven years. Throughout their relationship in both countries, the respondent primarily fulfilled a domestic and caring role, with the appellant providing financial support from his investments.

The central legal issue before the court was whether the Acting Master had erred in his assessment of the parties' contributions and the subsequent adjustment of their property interests. Specifically, the court had to consider the weight to be given to the respondent's role as a homemaker and carer, and whether the property adjustment ordered by the Acting Master was just and equitable, having regard to the factors outlined in relevant legislation.

The court found that the Acting Master's orders, which required the defendant to pay the plaintiff $766,000 and declared the defendant the owner of all his property, did not adequately reflect the respondent's contributions. The court reasoned that the respondent's consistent role as a homemaker and carer, undertaken at the appellant's request and with his financial support, constituted a significant contribution to the relationship. The court also noted that the appellant's desire for the respondent to remain at home and care for the family was a key factor.

The appeal was allowed, and the Acting Master's order for the defendant to pay the plaintiff $766,000 was set aside. In its place, the court ordered the defendant to pay the plaintiff $616,000, upon which payment the defendant would be declared the owner of all property registered in his name or possessed by him. The court also confirmed other orders made by the Acting Master regarding the plaintiff's ownership of jewellery and personal effects, and ordered the respondent to pay the appellant's costs of the appeal, subject to a certificate under the Suitors' Fund Act 1951. The respondent's application for maintenance was remitted to the Equity Division for further consideration.

Orders

Orders of the court

1 Appeal allowed

2 Set aside order 1 made by Acting Master Berecry on 30 August 2002

3 In lieu thereof the defendant to pay the plaintiff the sum of $616,000 and upon payment, the defendant be declared the owner of all property presently registered in his name or possessed by him

4 Confirm orders 2 and 3 made by Acting Master Berecry on 30 August 2002

5 The respondent to pay the appellant's costs of the appeal but to have a certificate under the Suitors' Fund Act 1951

6 The respondent's application for maintenance under s27 of the Act is remitted to the Equity Division for further consideration on the application of the respondent, if so advised.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The task of identification and valuation complete, the Court comes to consider whether it should adjust the interests of the parties in the property in such manner as to the Court seems just and equitable having regard to the contributions identified within paras (a) and (b) and other factors of the kind identified by Hodgson J. Acting Master’s reasons for judgment and orders The Acting Master made the following orders:“1.The defendant pay the plaintiff the sum of $766,000 and upon payment, the defendant be declared the owner of all property presently registered in his name or possessed by him.2.The plaintiff be declared the sole owner of all items of jewellery and personal effects presently in her possession, custody and control.3.The defendant pay the plaintiff’s costs.” Most of the Acting Master’s findings of fact are not in dispute. I can summarise those necessary to understand this appeal and to describe the relationship between the parties. The respondent was born on 13 May 1956, the appellant on 16 May 1925. They met in the Philippines in 1980 in a bar where the respondent was working and which was run by her aunt. The respondent was a citizen of the Philippines. The appellant was living there permanently. He owned an apartment and had investments in that country. Shortly after they met they began living in a de facto relationship. At that time the respondent ceased to work. The appellant was not in the workforce and had not worked since 1970. He lived on his investments. The respondent said that the appellant wished her to cease work and look after him. The parties had a reasonable standard of living in the Philippines. They had a motor vehicle, they ate at restaurants regularly. They were able to take overseas holidays. The Acting Master said they were able to do things that Philippine people with money were able to enjoy. They had maids to assist with the domestic chores, sometimes three maids but usually two, one of whom lived in. After the birth of their son in October 1981 the respondent said she looked after the day-to-day needs of both the appellant and the child. Her role was that of a carer. She prepared meals, did the washing and helped clean the unit. The maids assisted with these functions. The appellant admitted that he did no household work. The respondent performed her household functions with the assistance of the maids. The respondent and the maids waited on the appellant “hand and foot”. After the relationship broke down in 1983 the appellant flew to Sydney where he spent two months. From there he went to Samoa to secure a wife. This he achieved but the marriage in Samoa lasted only six weeks. He returned to the Philippines and began to cohabit with the respondent again. They continued to reside there until 1987 when they came to Australia and began to live in a rented flat in Randwick. This was their accommodation during the eleven years that followed. In Australia neither the respondent nor the appellant entered the workforce. The respondent said that the appellant did not want her going out to work as the appellant or his mother was able to provide them with funds as and when they needed them. The appellant’s desire was that the respondent look after the family. The respondent performed a caring role for the son, Thomas. The family continued to eat out regularly. The respondent cooked at home.

Ratio Decidendi

Legal Principle Established

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