White v Taylor
[2010] TASSC 30
•25 June 2010
[2010] TASSC 30
COURT: SUPREME COURT OF TASMANIA
CITATION: White v Taylor [2010] TASSC 30
PARTIES: WHITE, Suzanne
v
TAYLOR, Daniel Murray
FILE NO/S: 175/2010
DELIVERED ON: 25 June 2010
DELIVERED AT: Launceston
HEARING DATE: 25 June 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 Eaton
Respondent: No appearance
Solicitors:
Applicant: P L Corby & Co
Respondent: Nil
Judgment Number: [2010] TASSC 30
Number of paragraphs: 24
Serial No 30/2010
File No 175/2010
SUZANNE WHITE v DANIEL MURRAY TAYLOR
EDITED REASONS FOR JUDGMENT HOLT AsJ
(DELIVERED ORALLY) 25 June 2010
The applicant has applied for an order for the adjustment of interests in property. The application is made under the Relationships Act 2003.
The application was personally served on the respondent. It contained a return date before the Court and a notice to the respondent advising him that if he wished to participate in the proceeding he should file a notice of appearance within seven days. It contained a warning that if the respondent failed to file a notice of appearance within the seven day period and failed to attend at the hearing, such orders as a judge may think just and appropriate may be made without further notice to him. The respondent did not attend on the return date and did not file a notice of appearance. A hearing date for the application was appointed and the respondent was notified of it, but he did not attend.
The Relationships Act provides in s36(1), that a partner may apply to a court for an order for the adjustment of interests with respect to the property of either or both of the partners. Section 3 defines "partner" as a person who is or has been in a personal relationship. Section 4 defines a "significant relationship" as a relationship between two adult persons as a couple where they are not married to one another. Section 4(3) provides that in determining whether a significant relationship exists the Court is to have regard to the number of specified features including features consistent with the couple living in a marriage like relationship. Section 6 defines a personal relationship as including a significant relationship.
I find that the applicant and the respondent were partners within the meaning of the Act. They cohabitated between July 1999 and February 2007.
There are two children of the relationship. Cleo born 14 March 2004 and Mirren born 23 November 2005. Section 37 provides that the Court is not to make an adjustive property order unless the partners were in a personal relationship for a continuous period of not less than two years or other specified circumstances exist, such as there being children of the relationship. Plainly this pre-requisite is satisfied.
Section 38(1) provides that the application is to be made before the expiration of two years from the end of the relationship. Section 38(2) provides that a court, at any time before or after the expiry of the two year limitation period, may grant leave to a partner to bring an application if greater hardship would be caused to the applicant if leave were not granted than would be caused to the respondent if that leave were granted.
The applicant is out of time. Although the relationship ended in February 2007 the application was not filed until March 2010 and was not served until April. As the respondent has not participated in this matter, there is no assertion that an extension of time will cause to him any hardship and no assertion that any basis exists for withholding from the applicant a favourable exercise of the discretion. As will be seen from the reasons which follow, there are circumstances which would justify the making of an adjustive property order in favour of the applicant and so it necessarily follows that she will suffer some hardship if she is deprived of the opportunity to bring her application. The applicant has explained the delay. She was in negotiations with the respondent within the two year limitation period. She believed that there was a possibility of the claim settling without the need to resort to court action. The parties were still in negotiations about a month before the expiry of the time limit. At that time the respondent's solicitor wrote to the applicant's solicitor stating that no point would be taken about time if the application was filed outside the two year period. In these circumstances leave will be granted to the applicant to apply for an adjustive property order.
Section 40 authorises the Court to make any adjustive property order which it considers to be just and equitable having regard to the relevant circumstances of the case including the financial and non-financial contributions of the partners to the acquisition, conservation and improvement of the property of either or both of them.
The starting point is the identification and valuation of the property of the partners held either individually or jointly.
The major asset is the house at 45 Mulgrave Street, South Launceston, in which the applicant and her two children reside. The house is jointly owned by the applicant and the respondent. It was valued at $205,000 in March 2009. It is subject to a mortgage. The amount presently outstanding on the loan secured by the mortgage is about $116,500.
The evidence is that there are no other assets of significance. The applicant and the respondent each have personal effects, household furniture and a motor vehicle of modest value. The applicant has contributed to a superannuation fund and her current estimated benefit is about $13,500. There is no evidence of the respondent having made any superannuation contributions.
The orders which the applicant seeks are specified in the application which was served on the respondent. In summary, she wants the house at South Launceston transferred solely into her name with her taking responsibility for the mortgage and the other outgoings on the property. She proposes that the parties otherwise keep for themselves whatever other assets or resources exist and are in their individual names or possession. The applicant also seeks an order that the respondent pay the legal costs of the proceeding.
In deciding what adjustment of property interests, if any, is just and equitable, I commence by considering the respective contributions to the South Launceston house. It was purchased in early 2003 for the sum of $127,000. The applicant paid the deposit of $5,000 to the real estate agent on the signing of the purchase contract. She then paid a further sum of $7,700 into the parties joint bank account to ensure that sufficient funds were available to settle the purchase. Of this amount a little over $7,000 was applied to the purchase transaction. Mortgage finance of a little over $110,000 was obtained. The balance funds required to complete the purchase were obtained through the Commonwealth first home buyer's grant.
Following the purchase of the house the applicant and the respondent continued to live in Melbourne and rented the house to tenants. Shortly following the purchase the respondent spent some time at the house undertaking renovations and painting it, presumably to make it fit for occupancy by the tenants.
In October 2004 the couple extended the mortgage loan by borrowing the further sum of $25,000 which was applied to the respondent's business.
After the birth of the couple's daughter Cleo in March 2004, the applicant ceased working. In January 2005 she moved into the Launceston house with Cleo, while the respondent remained working in Melbourne. The tenants having gone, the respondent paid the mortgage instalments from about this time. In November 2005, with the birth of the couple's second daughter Mirren, the respondent moved from Melbourne into the South Launceston house.
The couple separated when the respondent moved out in February 2007. At that time the balance of the mortgage loan was about $133,000. The loan payments have been made exclusively by the applicant since shortly following separation and the current balance of the loan is about $116,500. The applicant has also paid the rates and insurance premiums for the house since shortly following separation. She has spent about $3,000 for maintenance work and about $700 purchasing some window blinds.
In deciding what is just and equitable a number of factors going beyond the specific contributions to the acquisition, conservation and improvement of the house must be considered.
The relationship commenced in 1999 when the applicant was aged 31 years and the respondent 21 years. The applicant worked full-time as a restaurant manager earning between $30,000 and $35,000 per year. She brought into the relationship her furniture and savings of between $20,000 and $30,000. The respondent had a car and some furniture, but no savings. He had just set up an information technology business and was also working on a casual basis in a bar. In 2000 the applicant left her job at the restaurant and worked in the respondent's business. She continued doing so until the birth of her daughter Cleo in March 2004. After that she became the recipient of Centrelink benefits. The applicant made some financial contributions to the respondent's business. In particular she lent to the business $8,600, of which only $4,100 has been repaid. She also repaid a debt owing by the business of $15,000.
Besides her interest in the house and her superannuation savings the applicant has her personal effects, household furniture, a 1999 Holden car and about $3,500 in savings. She receives a parenting benefit of $527 per week. She earns about $80 per week undertaking some childcare work. She receives about $10 per week from the respondent for child support. She is the primary carer for her two children with the respondent only exercising his right of access occasionally.
The respondent's only assets are his personal effects, some furniture and a 1998 Holden car. According to a child support assessment his current income is only about $8,000 per year.
Although the orders sought, if made, will result in the only significant asset being placed solely in the ownership of the applicant, I consider such orders to be just and equitable in all the circumstances. I have regard, in particular, to the following matters. The respondent made little or no financial contribution to the acquisition of the house. The house has a value of about $205,000 and is subject to a mortgage of about $116,500. The applicant made financial contributions to the respondent's business and has lost about $20,000 by so doing. She has the care of two small children and receives only about $10 per week from the respondent for child support. Her obligations as a parent impose restrictions on her employment capacity and impose financial obligations.
As the applicant has wholly succeeded in her application she ought have the benefit of a costs order under s68.
These are the orders:
(1) Orders are made in terms of the originating application.
(2)In the event that the respondent refuses or fails to execute a transfer of the property described in certificate of title volume 67918 folio 1 or any associated documents, the Registrar of the Court is appointed, pursuant to s55, to execute the transfer and such documents in the name of the respondent.
(3)These reasons are to be transcribed and the transcript (following editing by me) is to be sent to the parties with the respondent's copy to have attached to it a copy of the originating application.
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