Bowden v Foster [2007] NSWSC 29

New South Wales Supreme Court

CITATION : Bowden v Foster [2007] NSWSC 29 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 25/09/06; 26/09/06; 05/10/06

JUDGMENT DATE : 21 February 2007

JURISDICTION : Equity Division

JUDGMENT OF : Associate Justice Macready at 1

DECISION : Paragraph 76

CATCHWORDS : Family Law. Application for adjustment of parties' property interests under s 20 of the Property (Relationships) Act 1984. Consideration of whether contributions in an earlier relationship can be taken into account. Order made for adjustment.

PARTIES : Gail Bowden v Terrence Patrick Foster

FILE NUMBER(S) : SC 4558 of 2003

COUNSEL : Mr Gulpers for plaintiff Mr JR Drummond for defendant

SOLICITORS : Bellantonio & Rees for plaintiff Booth & Boormand for defendant

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

Associate Justice Macready

Wednesday 21 February 2007

4558/03 Gayle Bowden v Terrence Patrick Foster JUDGMENT 1 His Honour: This is the hearing of a claim under the Property (Relationships) Act 1984 for the adjustment of the parties' property interest under s 20 of the Act. The parties lived in a de facto relationship from either 1984 or 1986 until they separated on 2 October 2001. There were no children from the relationship but they each had children from a previous relationship. Background history 2 The defendant was born on 5 December 1946 and he married his wife Susan on 5 June 1965. The defendant had purchased land at Valley Heights and he constructed a home on the land. They had a family and separated, according to the defendant, in April 1985. 3 The defendant leased premises in Church Street, Parramatta where he lived for 6 months. He then rented premises at Kingswood in January 1986 and says that the plaintiff moved in with him in February 1986. Thereafter he says that they lived together until March 1987 when they separated in June or July 1987. He says that there was a further break in September 1987 until November 1988. 4 The defendant, through his company Fencing Constructions Pty Ltd (Fencing) purchased land known as 50 Sylvan Road, Werombi ("Werombi property") for $270,000 on 21 December 1987. The property was purchased from the plaintiff's brother and after its purchase the parties recommenced living together at the property. The plaintiff says that she first commenced to reside with the defendant at Parramatta in September 1984. She differs from the defendant as to the extent of their earlier separations. 5 At the Werombi property there was carried on a thoroughbred breeding and spelling business known as "Sun Cherry Stud". Fencing continued this business and it paid all the expenses and received the income. During the course of the relationship there were many improvements to the Werombi property. 6 On 30 August 1999 a business name "Serenity Park Australia" was registered. On 1 July 2000 a partnership commenced between the plaintiff and Fencing which carried on the former business under this name. 7 The parties are agreed that they separated on 2 October 2001. The plaintiff continued to work at the stud until 30 June 2002. 8 The Werombi property was sold on 8 August 2003 for $1,175,000 and settlement took place on 3 November 2003. A substantial part of the proceeds were used to pay liabilities. Property of the parties at the commencement of the relationship 9 The start of the relationship is a matter of some debate but it seems to me that the plaintiff cannot point to any particular event which makes it likely that cohabitation commenced in 1984. She claims to have commenced work with Fencing in September 1984 and through her work at Fencing she met the defendant. Her position was assistant and office manager. However the records of Fencing that have been produced show that she commenced work in September 1985. Given the events, which were happening to the defendant in respect of his separation, I think his recollection is more likely to be accurate. I therefore accept that the relationship commenced in February 1986. 10 There was a separation in September 1987 and the plaintiff suggests that she rejoined the defendant early in 1988 after the purchase of the Werombi property. There is evidence from Martin Foster, the defendant's son, who was residing on the property at the time that she was not residing there in the period up until he left in November 1988. There was no cross-examination on his evidence and I accept the defendant's evidence that she rejoined the defendant in November 1988. 11 This led to a submission by the defendant that because there was a substantial break I could not have regard to the contributions in the earlier period of the admitted de facto relationship which the defendant puts as starting in February 1986. This was dealt with in Jones v Grech [2001]NSWCA 208. In that case Justice Powell adhered to the view which he had earlier expressed in Roy v Sturgeon (1986) 11 NSWLR 454 that it was only contributions to the last period to which regard could be had in the absence of any grant of leave for extension of time to apply for an earlier period. Justice Ipp adopted an approach which I had suggested in Fotheringham v Fotheringham 19 November 1996 in these terms: "70 It is not uncommon for parties to a de facto relationship to terminate their relationship and, thereafter, at a later date, to re-commence living in a de facto relationship. On occasions, the same parties may live in a de facto relationship over many intermittent periods. The question therefore arises whether, for the purposes of s 20(1), each one of the intermittent periods is to be regarded as constituting a separate and different de facto relationship, or whether the aggregate of the intermittent periods is to be considered as being one de facto relationship to which the Court should have regard.