TJ v SB - [2010] QSC 403

SUPREME COURT OF QUEENSLAND

CITATION:

TJ v SB and Ors [2010] QSC 403

PARTIES:

TJ

(applicant)

v

SB
(first respondent)

and

B & Co Pty Ltd
(second respondent)

and

VE Pty Ltd
(third respondent)

and

JL
(fourth respondent)

FILE NO:

BS No 7850/06

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

26 October 2010

DELIVERED AT:

Brisbane

HEARING DATE:

6, 7 and 8 September

JUDGE:

Applegarth J

ORDER:

The parties confer in relation to the draft orders appearing in the reasons for judgment, and the applicant submit within 14 days draft minutes of order

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – DE FACTO RELATIONSHIPS – ADJUSTMENT OF PROPERTY INTERESTS – GENERALLY – where applicant seeks a property adjustment under Part 19 Property Law Act 1974 (“PLA”) – de facto relationship of approximately 22 years – where applicant was the primary breadwinner and homemaker – where the applicant has primary responsibility for the care of three children of the relationship – where the respondent provided minimal monetary or other assistance to the household for the duration of the relationship – where the applicant and respondent both suffer from health problems
FAMILY LAW AND CHILD WELFARE – DE FACTO RELATIONSHIPS – ADJUSTMENT OF PROPERTY INTERESTS – OTHER MATTERS – unreasonable conduct of respondent – where respondent entered into imprudent loan and encumbered assets as security with no prospect of repaying the loan – where trustees for sale appointed to mortgaged properties and substantial trustees’ fees incurred – where the respondent was diagnosed with manic depression or bipolar disorder – where respondent acted with hostility towards the applicant post-separation – where the respondent has exhibited an intransigent attitude towards the resolution of financial matters – whether the respondent’s behaviour has reduced or minimised the effective value of assets - whether there should be “add backs” to the value of the assets on account of the respondent’s unreasonable conduct

Family Court Act
Property Law Act 1974 (Qld), s 343

Challen & Challen [2007] FamCA 1292, applied
De Sales v Ingrilli (2003) 212 CLR 338
EB v CT [2008] QSC 303
FO v HAF [2007] 2 Qd R 138, [2006] QCA 555, applied

Kennon v Kennon (1997) FLC 92-757

COUNSEL:

C J Forrest for the applicant
J C Hall for the first respondent
B G Cronin for the third respondent

SOLICITORS:

Hartley Healy Lawyers for the applicant
Robinson & Robinson Solicitors for the first respondent
James Watt & Co for the third respondent

Introduction

[1] The applicant and the respondent[1] began living together as a couple in about late 1983, when the applicant was aged 20 and the respondent was aged 25. They had three children, who were born in 1991, 1992 and 2002. Their relationship ended acrimoniously on 29 March 2005. The applicant seeks a property adjustment order under Part 19 of the Property Law Act 1974 (Qld) (“the Act”).
[1]The parties are not identified by name so as to reduce the risk of identification…

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 TJ v SB

Details

AGLC: TJ v SB [2010] QSC 403
Case: [2010] QSC 403
Decision Date: 26 October 2010

CaseChat Overview and Summary

In the Family Court of Australia, TJ sought a property adjustment from SB under Part 19 of the Property Law Act 1974. The parties had been in a de facto relationship for approximately 22 years, during which TJ was the primary breadwinner and homemaker, and had primary responsibility for the care of three children from the relationship. SB contributed little financially or otherwise during the relationship. Both parties have health problems. SB, however, engaged in conduct that was deemed unreasonable, including entering into an imprudent loan secured against the assets with little prospect of repayment. Trustees for sale were appointed to the mortgaged properties, resulting in substantial fees. SB was diagnosed with manic depression or bipolar disorder and acted with hostility towards TJ post-separation. SB also exhibited an intransigent attitude towards resolving financial matters. The central legal issue was whether SB's behaviour reduced or minimised the effective value of the assets, and if there should be "add backs" to the value of the assets on account of SB's unreasonable conduct.

The court examined the contributions of both parties, noting TJ's substantial financial contributions and primary responsibility for the children. The court considered SB's conduct, including the imprudent loan, the hostility and intransigent attitude post-separation, and the impact of SB's actions on the assets' effective value. The court concluded that SB's unreasonable conduct had indeed reduced the effective value of the assets, justifying an adjustment in their interests. The court found that there should be "add backs" to the value of the assets to account for SB's unreasonable conduct, and that this should be reflected in the property adjustment order.

The court ordered the parties to confer on the draft orders appearing in the reasons for judgment, and for TJ to submit draft minutes of order within 14 days. The court's decision recognised the importance of considering the contributions of both parties, including non-financial contributions, and the impact of unreasonable conduct on the effective value of assets. This decision provides a clear framework for the court to consider in similar cases involving de facto relationships and property adjustments.

Orders

Orders of the court

The parties confer in relation to the draft orders appearing in the reasons for judgment, and the applicant submit within 14 days draft minutes of order

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	TJ v SB and Ors [2010] QSC 403
PARTIES:	TJ (applicant) v SB (first respondent) and B & Co Pty Ltd (second respondent) and VE Pty Ltd (third respondent) and JL (fourth respondent)
FILE NO:	BS No 7850/06
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	26 October 2010
DELIVERED AT:	Brisbane
HEARING DATE:	6, 7 and 8 September
JUDGE:	Applegarth J
ORDER:	The parties confer in relation to the draft orders appearing in the reasons for judgment, and the applicant submit within 14 days draft minutes of order
CATCHWORDS:	FAMILY LAW AND CHILD WELFARE – DE FACTO RELATIONSHIPS – ADJUSTMENT OF PROPERTY INTERESTS – GENERALLY – where applicant seeks a property adjustment under Part 19 Property Law Act 1974 (“PLA”) – de facto relationship of approximately 22 years – where applicant was the primary breadwinner and homemaker – where the applicant has primary responsibility for the care of three children of the relationship – where the respondent provided minimal monetary or other assistance to the household for the duration of the relationship – where the applicant and respondent both suffer from health problems FAMILY LAW AND CHILD WELFARE – DE FACTO RELATIONSHIPS – ADJUSTMENT OF PROPERTY INTERESTS – OTHER MATTERS – unreasonable conduct of respondent – where respondent entered into imprudent loan and encumbered assets as security with no prospect of repaying the loan – where trustees for sale appointed to mortgaged properties and substantial trustees’ fees incurred – where the respondent was diagnosed with manic depression or bipolar disorder – where respondent acted with hostility towards the applicant post-separation – where the respondent has exhibited an intransigent attitude towards the resolution of financial matters – whether the respondent’s behaviour has reduced or minimised the effective value of assets - whether there should be “add backs” to the value of the assets on account of the respondent’s unreasonable conduct Family Court Act Property Law Act 1974 (Qld), s 343 Challen & Challen [2007] FamCA 1292, applied De Sales v Ingrilli (2003) 212 CLR 338 EB v CT [2008] QSC 303 FO v HAF [2007] 2 Qd R 138, [2006] QCA 555, applied Kennon v Kennon (1997) FLC 92-757
COUNSEL:	C J Forrest for the applicant J C Hall for the first respondent B G Cronin for the third respondent
SOLICITORS:	Hartley Healy Lawyers for the applicant Robinson & Robinson Solicitors for the first respondent James Watt & Co for the third respondent