A and G

[2009] FCWA 110

[2009] FCWA 110

JURISDICTION	:	FAMILY COURT OF WESTERN AUSTRALIA
ACT	:	FAMILY COURT ACT 1997
LOCATION	:	PERTH
CITATION	:	A and G [2009] FCWA 110
CORAM	:	THACKRAY CJ
HEARD	:	16 & 17 MARCH 2009
DELIVERED	:	25 AUGUST 2009
FILE NO/S	:	PTW 4438 of 2007
BETWEEN	:	A Applicant/Wife
AND
G Respondent/Husband
Catchwords:

PROPERTY - De facto marriage - Date of separation - Whether a relationship that has broken husband - Non-financial contributions by the wife - Where the wife was primarily responsible for the child of the relationship prior to cohabitation.

down has "ended" - Whether leave to file application out of time required
Legislation:

Family Court Act 1997 Interpretation Act 1984

Category: Not Reportable

Representation:

Counsel:

Applicant : Ms R Oakeley

[2009] FCWA 110

Respondent : Mr R Bannerman

Solicitors:

Applicant	:	Bowen Buchbinder & Vilensky
Respondent	:	Bannerman Solicitors

Case(s) referred to in judgment(s):

Hibberson v George (1989) DFC 95-064

[2009] FCWA 110

1 [Mr G] and [Mrs A] had a lengthy de facto marriage relationship. I have to

decide whether it ended in May/June 2005 (as asserted by [Mr G]) or in September
2005 (as asserted by [Mrs A]).

2 If the relationship ended by June 2005, I have to decide whether leave should be

granted to [Mrs A] to commence proceedings for property settlement. This is because her application was not filed until August 2007 and the legislation provides that leave is required to commence proceedings more than two years after a de facto marriage ended.

3 If I find the relationship ended in September 2005 (or if I grant leave to

commence proceedings) I must then determine the competing claims, taking into
account the payment [Mr G] has already made to [Mrs A].

Orders sought

4 [Mrs A] sought the sale of the home in which [Mr G]is living in [the country].

She proposed that her outstanding legal fees be paid from the proceeds and that [Mr G] then receive an amount which would result in him receiving half of the net assets. The calculation would take into account not only payment of [Mrs A]’s legal fees but also the $40,000 that [Mr G] had already paid to [Mrs A].

5 [Mr G] sought the dismissal of [Mrs A]’s application. In the alternative he

proposed that each party keep the assets they already have (which in his case would
include the [country] property). He also sought that [Mrs A] pay his costs.

Brief background

6 [Mr G] is 65 years and [Mrs A] is 64 years of age. They have been in receipt of a pension ever since their relationship commenced.

7 The parties began their romantic association in 1985. They had one child, [Susan], who was born in October 1986.

8 The parties did not live together for the first few years of their relationship;

however, [Mrs A] moved into [Mr G]’s home in [the suburbs] in June 1990. Prior to that time, [Mrs A] and [Susan]had been living in a State Housing Commission home with [Mrs A]’s three children from a previous marriage. Those children were aged between 15 and 20 when the relationship commenced in 1985.

9 At the commencement of cohabitation [Mr G] not only owned his home but also

had a significant amount in the bank (the proceeds of a compensation payment). The parties then won a substantial sum in “Favourite Numbers”. They decided [Mr G] would sell the [suburban] home. In anticipation of the sale, they bought a small property [in the country] on which they later erected a transportable home.

10 The parties’ relationship deteriorated and by 2005 [Mrs A] was thinking of

ending it. By this time [Susan] was boarding in Perth with [Mrs A]’s daughter, [Narelle]. During 2005 [Mrs A]spent some time in Perth looking after her brother’s

[2009] FCWA 110

house and also spending time at [Narelle]’s home. [Narelle] became very unwell in 2005 and was hospitalised on more than one occasion. [Mrs A] came to Perth from time to time to support [Narelle]and to babysit her young son. [Mrs A] asserts that in between her visits to Perth she returned to live in the [country] home.

11 [Mr G] claims that the relationship ended in May or the first week of June 2005 and that thereafter [Mrs A] never lived in [the country home]. He says that she returned to [the country home] in the first week of June 2005 to pack her belongings and then moved to Perth permanently. He says [Mrs A]’s boxed up possessions remained in the home until October 2005 when she made a daytrip to collect them.

12 In September 2005 the parties met with a solicitor in [country]. [Mrs A]’s

evidence suggests that the firm involved was representing both parties, although [Mr G] paid the bill. In any event, a Contract of Sale was drawn and executed. The contract, dated 24 September 2005, required [Mrs A]to transfer her interest in the [country] property to [Mr G] in return for a payment of $40,000, to be made within 10 business days from the stamping. The document was stamped on 19 October 2005.

13 The Contract of Sale recorded that a market appraisal showed the value of the

property was $175,000 and that [Mrs A] had agreed to gift to [Mr G] “the value of $47,500 in the land”. [Mrs A] says that about six weeks after she signed the Contract she received a cash cheque for $40,000. The Certificate of Title indicates that the property was transferred into [Mr G]’s name on 17 November 2005.

14 Nothing further of significance occurred until 10 August 2007 when [Mrs A]’s

solicitors wrote to [Mr G] seeking a property settlement. Although [Mr G] claimed that he had “relied upon” the settlement reached in 2005 he gave no evidence to indicate how he had done so. He said the value of the property had gone up by $200,000, which he felt was the reason [Mrs A] had decided to make a further claim.

15 [Mrs A] filed her application on 20 August 2007. In his Response filed in

November 2007, [Mr G] agreed with some of the orders sought in the application (essentially those permitting [Mrs A] to keep what she already had). [Mr G] answered “No” in reply to the question, “Do you disagree with any facts contained in the Application for Final Orders?” One of the “facts” was that separation occurred on 17 September 2005.

16 At the first hearing (at which both parties were represented) nothing was said

about jurisdiction. Nor was anything said at the conciliation conference to indicate jurisdiction was in issue. It was only at the pre-trial conference that [Mr G] raised the issue. The parties were then required to provide further evidence on that point. It was agreed that the jurisdiction issue and the substantive claims should be heard together.

Credibility

17 Both parties gave oral evidence at trial, as did:

• [Susan G] (the only child of the relationship);

• [Narelle A] ([Mrs A]’s adult daughter);

[2009] FCWA 110

• [Ronald G] ([Mr G]’s adult son); and

• two of [Mr G]’s neighbours.

18 [Bill A], [Mrs A]’s adult son, provided an affidavit but was not required for cross-examination. His brief affidavit contained no evidence of value.

19 [Narelle A], [Susan G] and the two neighbours did not attend the hearing and

were cross-examined by telephone. Assessment of credibility is difficult enough at the best of times; however, it is even more difficult when witnesses are not present. Nevertheless, illness, distance and expense made it appropriate for their evidence to be given in this fashion.

20 I felt that all of the witnesses did their best to tell the truth. However, their

evidence related to events that had taken place some three years prior to the date on which their affidavits were sworn. Save for [Narelle A], none of the witnesses gave evidence by reference to contemporaneous documents. [Narelle A]’s evidence was given, in part, by reference to her medical records and diary, which I am satisfied contained accurate information. Even so, much of the evidence of importance given by [[Narelle A] was not recorded in her diary.

21 The evidence of [Ronald G] showed just how little family members sometimes

know about the lives of their relatives. [Mr G] said, for example, that he knew that his father and [Mrs A] kept separate bank accounts and seemed not to mix their money, even though the evidence established they had a joint account into which their entire income was paid (and which was largely controlled by [Mr G] (Snr). It is also noteworthy that at the critical time in 2005, [Ronald G] was only visiting [the country home] about once a month.

22 Although I thought the witnesses tried their best to tell the truth, I had

reservations about the credibility of the parties themselves. I gained the impression that both were inclined to tailor their evidence to support their case. Both were shown to have given inaccurate evidence in their affidavits. In the case of [Mrs A], this concerned discrepancies in the dates she said she was away from [country] in 2005. Some of those dates were shown to be inaccurate by reference to documents concerning train travel which [Mrs A] herself presented at trial.

23 The discrepancies between the written and oral evidence of [Mr G] were starker.

For example, he maintained in his affidavit that he had acquired the winning ticket in “Favourite Numbers” prior to commencement of cohabitation and had given half of the money to [Mrs A]as a birthday present. He said:

“…in about 1990, at least it was before we were in a defact [sic] relationship I believe, I won $60,000 on a bet that I made with my own money that I had had from prior to our relationship even commencing.”

24 However, in his oral evidence [Mr G] readily conceded that the ticket had been

purchased after commencement of cohabitation and with joint funds. (This concession was only forthcoming after his counsel had cross-examined [Mrs A] relying on the veracity of the original assertions concerning the winning ticket.)

[2009] FCWA 110

25 [Mr G] claimed in his affidavit that the [country] property was purchased in his

sole name “because it was always thought of as my property since it was exclusively my money that was used to buy it”. This claim was made even though the relevant Certificate of Title, which was attached to a valuation annexed to [Mr G]’s affidavit, shows the property was registered in joint names. (Furthermore, the purpose of the Contract of Sale was to transfer the property out of joint names.)

26 [Mr G] also denied in his affidavit that the parties had ever had a joint bank

account, but he had to concede this was not true when [Mrs A] produced a joint account which he acknowledged they had operated for some years before the end of their relationship.

27 No explanation was given for the discrepancies between [Mr G]’s affidavit and

his oral evidence; however, it was apparent that English was not his first language and he struggled when reading the oath. It may be that some of the discrepancies arose from his poor comprehension of English and the fact he is not overly sophisticated – as was demonstrated by his evidence regarding the quantum of the wife’s compensation claim.

28 There were also some striking internal discrepancies in [Mr G]’s affidavit which apparently went unnoticed – see for example paragraphs 78 and 85.

Date of separation

29 In his affidavit, after setting out some background, [Mr G] said this concerning the date of separation:

“54.	When [Mrs A] went to stay and look after her daughter in Perth our relationship had been very difficult for some time.
55.	There was very little communication between us and I felt that at that time our relationship was pretty much over.
56.	I did not expect to see [Mrs A] back in our house living again from the date she went to stay with her daughter. In fact I was correct as she never did return to stay.
57.	When [Mrs A] came back in June to get her belongings that to me was a final confirmation that the relationship was over.
58.	The discussions we had at the time were brief and not thise [sic] to suggest we were a couple anymore.
59.	The only thing that was defacto about our relationship was the semblance of being a couple.
60.	Our monies were separate, we kept our own names and we never got married nor did we wish to. We lived together from 1990 till May 2005 when we never lived together again.

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61. If I was asked in May or June that year I would have and probably did declare our relationship at an end.

62. [Mrs A] had also commenced another relationship with another man at that time, as I found out, and at that point there was no way that I would have continued the relationship.

63. [Mrs A] never lived in our house from May of 2005 onwards.

64. The initial desire for her to go through to Perth was to look after her daughter and that was supposed to be for perhaps up to 6 weeks.

65. 6 weeks would have taken her to the middle of June and that is when she came back and took all her belongings.”

30 [Mrs A] acknowledged in her affidavit that the relationship between the parties

“was not going well” in 2005; however, she was adamant that the separation did not occur until September in that year. She sought to corroborate this by reference to independent information.

31 [Mrs A] attached to her affidavit a document showing transactions on the joint

account. This showed that [Mrs A]’s pension continued to be paid into the account up to October 2005. This is significant in that [Mr G] controlled the disbursement of funds from that account. [Mrs A] said she would not have continued to allow her pension to be paid into the account controlled by [Mr G]if they had separated in May or June 2005. She said she only arranged for the funds to be paid into her own account after the separation in September 2005.

32 [Mrs A]did acknowledge that in the months leading up to September 2005 she

spent quite a lot of time living in Perth. However, she said these visits primarily related to her looking after her daughter and grandson. In her affidavit she set out a table showing where she claimed to have been living in the relevant period. She said this information was provided to the best of her recollection (although in cross-examination she acknowledged that she had also relied on information she had obtained from [Narelle’s medical records and diary).

33 The relevant part of her affidavit is replicated below:

Dates	Place Staying
4 – 9 April	I stayed at my brother [Kevin’]s house in [the suburbs] for a few days before going to house sit for my daughter [Narelle]
9 – 16 April	I stayed at my daughter [Narelle]’s house while she and her
2005	family went to [the coast] for a holiday. I stayed there with my son [Bill] and assisted with the painting of the house. My daughter [Susan] also lived with [Narelle] and her family at

[2009] FCWA 110

this time. [Susan] went on holiday with [Narelle] and her

family.

16 April – 27	I was living in [country] with [Mr G]. I went bowling on
July	26 July, as shown in the attached letter marked “A” from [Mr P], who is the secretary of the bowling club.
27 July –	During this period I went to help with the care of my
31 August	grandson [David] during the day as his mother, my daughter
2005	[Narelle] was ill in hospital. [David] was in day care on Tuesday and Wednesday. I probably went on the Thursday and stayed until the Sunday, 31 July 2008.
31 July –	I was living in [country] with [Mr G]. I went bowling on 2,
10 August	9 & 16 August, as shown in the attached letter marked “A” from [Mr P], who is the secretary of the bowling club.
10 – 12	I stayed with my daughter [Narelle] to help care for her son
August 2005	[David] who was ill.
13 August –	I was living in [country] with [Mr G]. I went bowling on
21 September	7 September, as shown in the attached letter marked “A” from [Mr P], who is the secretary of the bowling club.
22 – 24	From 22 to 24 September I stayed with my daughter [Narelle]
September	while her husband was away. I recall going to an away game for bowling in [the suburbs] on about 23 August 2005.
24 August –	From 24 August to 2 September I went to care for [David]
2 September	during the day. I remember spending the occasional night there but I would go home by train each weekend and some evenings. [David] was also being cared for by his paternal grandmother and paternal aunt as well as me so I was able to go home.
2 September	I was living at the home in [country]. I recall being there for
to 8	father’s day because [Mr G]’s son [Ronald] and his girlfriend
September	[Kerry] came down. They took him to the [local] Tavern for lunch. The last time I went bowling was 7 September 2005.
9 September –	I went to stay with [Narelle] for about a week to help care for
3 October	[David] after she was discharged from hospital. I would also occasionally stay with my son [Bill] when I was not needed at {Narelle]’s house. However, after this time, I did not return to [country].

34 It will be noted that in providing this information, [Mrs A] relied upon a letter

from the [country] bowling club in which the club secretary detailed her record of
attendances on bowling days. The relevant information is set out below.

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03.05.05	Attended
10.05.05	Attended
17.05.05	Attended
24.05.05	Attended
31.05.05	Attended
07.06.05	Attended
14.06.05	Attended
21.06.05	Attended
28.06.05	Attended
05.07.05	Attended
12.07.05	Absent
19.07.05	Absent
26.07.05	Attended
02.08.05	Attended
09.08.05	Attended
16.08.05	Attended
23.08.05	Absent
30.08.05	Absent
07.09.05	Attended
14.09.05	Absent

35 [Mrs A] claimed that although she went bowling almost every Tuesday, it was

too expensive to travel back to [the country town] for bowls after she and [Mr G] had separated. The inference I was asked to draw was that she was living in [the country] on the occasions she was recorded as having attended bowls. In this regard, however, I note that when [Mrs A]’s solicitors wrote to the club seeking information, they acknowledged there were both home and away games. The records did not differentiate between home and away games and it is therefore possible that [Mrs A]

[2009] FCWA 110

might not have had to travel back to [country] to attend a bowling day if the club was
visiting another club in Perth.

36 In order to further bolster her claims, [Mrs A] issued a subpoena to TransWA concerning her travel between [country] and Perth from April to September 2005. This resulted in the following information being obtained:

•	15 April 2005 at 15:40	Perth to [country];
•	18 April 2005 at 14:40	[country] to Perth;
•	18 May 2005 at 14:47	[country] to Perth;
•	22 May 2005 at 14:20	Perth to [country];
•	8 July 2005 at 17:20	[country] to Perth;
•	10 August 2005 at 12:09	[country] to Perth;
•	26 August 2005 at 15:25	Perth to [country];
•	7 September 2005 at 6:30	[country] to Midland;
•	7 September 2005 at 17:50	from Midland to [country];
•	12 September 2005 at 6:30	from [country] to Midland.

37 It will be observed from these records that [Mrs A] made a return journey from [country] to Perth on 7 September 2005, which is also a day on which she is recorded as having been present at bowls. She was not cross-examined about this apparent discrepancy but it occurs to me there could be at least two explanations.

38 One stems from the evidence that the club would sometimes come to Perth to

play bowls. Although [Mrs A]’s evidence suggested that a bus was normally organised for this purpose, it is feasible the club had an away game in Perth on 7 September 2005 and she caught the train down and back so she could attend.

39 Another possible explanation is there is an error in the club records. Two things

suggest this as being a possibility. First, the club secretary who prepared the handwritten list of attendances initially made a mistake in the entry immediately before the entry on 7 September, which was then scratched out. Secondly, the bowling club meets on Tuesdays, whereas 7 September 2005 was a Wednesday. (All 18 entries prior to 7 September 2005 showed she bowled on a Tuesday.)

40 After obtaining the records from TransWA, [Mrs A] acknowledged in her oral

evidence that some of the information contained in her affidavit about times she was in Perth was not completely accurate. There was also inaccuracy in evidence she had given about the time of day she routinely left [the town] when travelling by train. However, it was asserted that the thrust of the evidence in her affidavit was corroborated by the train records.

41 Faced with the banking records and the bowling club information, [Mr G]

claimed that [Mrs A] used to come back to [the town] specially on bowling days and that on these occasions he handed to her the pension money that was continuing to be paid into the joint account (or alternatively he sent the payment to her in Perth by money order). He had made no mention of any of this in his affidavit.

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42 Although some of the detail provided by [Mrs A] in her affidavit was wrong,

I ultimately concluded that she did not stop returning to live in [the town] until
September 2005. These are my reasons:

•  [Mrs A]’s pension continued to be paid into the joint account controlled by [Mr G] until October 2005. It is unlikely [Mrs A] would have allowed this to continue if they had separated in May/June 2005. [Mr G]’s evidence about the pension payment being handed over on bowling days, or being sent by money order, seemed likely to be a recent invention. (I accept [Mr G] may have given [Mrs A] the last one or two payments – i.e. those paid into the joint account on 22 September 2005 and 6 October 2005.)

•  [Mrs A] continued to travel back and forward between [country] and Perth after May/June 2005. The inference I would draw from the train records is it is highly likely that [Mrs A], as a bare minimum, stayed overnight in [the country] on 26 August 2005 (when her train left Perth at 3.25 pm) and 7 September 2005 (when her train left Perth at 5.50 pm). There was no evidence to suggest that on those occasions [Mrs A] had anywhere else to stay other than with [Mr G], but according to his evidence she “never ever” stayed with him in that period.

•  It is apparent that the train records do not provide a complete record of [Mrs A]’s travel between Perth and [country]. Thus there are no journeys recorded in the period between 8 July 2005 and 10 August 2005, on both of which days [Mrs A] travelled by train from [the country] to Perth. At some stage in between she must have found her way back to [the country]. Thus, although it may theoretically be the case, as was put to [Mrs A], that she could have been in Perth for much of July 2005, it could just as easily be that she was in Perth for a much shorter period. ([Mrs A] said she had requested the bus records but they had not been provided.) In my view the most logical conclusion to be drawn is that [Mrs A] also spent (at the very least) the nights of 7 July 2005 and 9 August 2005 in [the country]. Again, there is no evidence that she had anywhere else to stay than with [Mr G]. In this regard it is to be noted that although [Mrs A] missed bowls on 12 and 19 July 2005, she attended on 26 July 2005.

•  The club records indicate that [Mrs A] attended bowls three weeks in succession in August 2005, which is after [Mr G] claims she had left [country]. I have accepted the possibility that some of the bowling days attended by [Mrs A] could have been in Perth; however, it would be highly unlikely there would be three away games in succession. I accept that it was logistically difficult/impossible for [Mrs A] to attend bowling days in [the country town ] by public transport and I am not persuaded she drove (or was driven) to [country] just to play bowls, as was somewhat belatedly suggested. [Mrs A]’s evidence that she has not been back to [the town] for bowling since September 2005 was not challenged.

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• Whilst I accept that [Mrs A] had boxed up some of her possessions well prior to September 2005, this is not inconsistent with her evidence that she was continuing to live in the [country] home until September 2005.

• It was common ground that [Mrs A] did not remove all her possessions from the home until September 2005.

• [Mrs A]’s evidence was corroborated in many material particulars by her daughter [Narelle] and the parties’ daughter [Susan].

• The Contract of Sale was dated September 2005. I consider it unlikely that [Mrs A] would have waited from May/June 2005 to September 2005 before seeking to secure a settlement. I accepted her evidence that she informed [Mr G] that he would need to give her at least $50,000 in order to persuade her to move out of the house and it was only when the parties finally agreed on a figure of $40,000 that she actually moved out.

• Although the credibility of both parties left much to be desired, the evidence given by [Mr G] in his affidavit was utterly unreliable. I am not persuaded that this was due entirely to his difficulties in understanding English.

43 In coming to my conclusion I have not disregarded the evidence given by

[Mr G]’s son, [Ronald], nor that given by the [country] neighbours, [Mrs M] and
[Miss M].

44 I have already commented on how [Ronald] had been given an entirely

inaccurate impression of one important matter (i.e. concerning the parties’ financial affairs). He was not able to be specific about dates and it seems that his understanding principally was that [Mrs A]’s departure had something to do with her looking after [Narelle]. It would have been difficult for him to get a clear picture of what was happening. Not only was he not in [country] very often, but also [Mrs A] was back and forward between Perth and [the town] on numerous occasions. It may also be that [Ronald] relied on his father’s recollection to assist him to refresh his own memory of what had occurred a long time ago.

45 In the case of the evidence given by [Mrs M] and [Miss M], it is important to

keep in mind that whilst the precise date on which [Mrs A] left the [country] home is now very significant, it would not have been significant at the time, especially to neighbours. I have already referred to what a confusing picture it must have been at the time, with [Mrs A] moving back and forward from Perth. Ultimately, I formed the view that whilst the [M family] had a fairly good impression of the chronology of events, their chronology was “out” by a few months.

46 In this regard, I note that [Miss M] said in paragraph 5 of her affidavit:

“I remember in about April or May of 2005, [Mrs A] went through to Perth for about 6 weeks in order to look after her daughter, [Narelle],

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whilst she recovered from an operation I had been told about by them
[sic].”

47 The rest of her affidavit was arguably constructed around this recollection of the

date of [Narelle]’s operation. In fact, the evidence establishes that [Narelle] went on holiday to [the coast] in April 2005 and [Mrs A] went to Perth to look after the house while she was away. [Narelle] did not go into hospital until 25 July 2005 for an “injection trial”. She then went back into hospital for “major injections” on 24 August 2005 and did not have “an operation” until 2 September 2005. If the correct date of this operation was factored into [Miss M]’s affidavit it would be seen as corroborative of [Mrs A]’s version of events.

48 I accept that [Miss M] was not cross-examined about her understanding

concerning the date of the operation. However, there was no internal inconsistency in her evidence on this point and her evidence was quite clear she considered the operation had been in April or May, whereas it was much later. On balance, I consider she should have had this fact pointed out to her expressly in cross-examination but I nevertheless consider the error casts doubt on the accuracy of the chronology she had attempted to reconstruct from memory.

49 In this regard it should be noted that whilst the affidavit evidence of [Miss M] in

particular was given with a degree of authority, she sounded much less sure of the chronology when she was giving her oral evidence. For example, when asked whether the months referred to in paragraph 5 of her affidavit could be “slightly out”, she said, “I don’t think so – I am pretty sure it was around that time”. When asked why she was sure, she said she was “just remembering back trying to remember exactly which month it was – I am pretty sure it was about then”. [Mrs M] was also sensibly circumspect when giving her oral evidence. When it was suggested to her that her memory might not be entirely accurate she accepted that was a possibility although she felt “pretty positive”, for example, about the evidence she had given concerning [Mrs A] having boxed up her possessions.

Conclusion on jurisdiction issue

50 For the reasons set out above, I have found that [Mrs A] continued to reside in

the home in [the country] with [Mr G] until early in September 2005. This conclusion does not, however, resolve the jurisdictional question which is directed to determining the date on which the de facto marriage relationship “ended”.

51 In determining when the de facto relationship ended, I must have regard to the

provisions of s 13A of the Interpretation Act 1984, which sets out the following
factors to be taken into account in assessing whether there is a de facto relationship: -

(a)	the length of the relationship between them;
(b)	whether the two persons have resided together;
(c)	the nature and extent of common residence;

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(d)	whether there is, or has been, a sexual relationship between them;
(e)	the degree of financial dependence or independence, and any arrangements for financial support, between them;
(f)	the ownership, use and acquisition of their property (including property they own individually);
(g)	the degree of mutual commitment by them to a shared life;
(h)	whether they care for and support children;

(i) the reputation, and public aspects, of the relationship between them.

52 I agree, with respect, with the observations of Mahoney J in Hibberson v George (1989) DFC 95-064, where his Honour said (at p 75,766):

“There is, of course, more to the relevant relationship than living in the same house. But there is, I think, a significant distinction between the relationship of marriage and the instant relationship. The relationship of marriage, being based in law, continues notwithstanding all of the things for which it was created have ceased. Parties will live in the relationship of marriage notwithstanding that they are separated, without children, and without the exchange of incidents which the relationship normally involves. The essence of the present relationship lies, not in law, but in a de facto situation. I do not mean by this that cohabitation is essential to its continuance: holidays and the like show this.”

53 These comments were made in the context of a case where one of the parties

had, in fact, left the home but claimed that the relationship was still ongoing. In the present case, part of the cross-examination of [Mrs A] was designed to establish that although the parties may have continued to reside in the same residence, the relationship had “ended” prior to the date of final physical separation.

54 In answering questions put to her, [Mrs A] acknowledged that during the last

month or so of cohabitation, the parties were negotiating the terms on which she would leave the property. She went so far as concede that she regarded the relationship as having “ended” prior to her moving out of the property. This is not, however, in any way determinative of the matter. The date on which a de facto marriage relationship has “ended” is a matter of law and not a matter for a party themselves to determine. I am quite satisfied that in acknowledging that she regarded the relationship as having “ended” in August 2005, [Mrs A] was using the word in the colloquial sense in that she was completely disillusioned with the relationship and had determined that she would leave the home and live elsewhere.

55 I am not, however, satisfied that the relationship actually “ended” until [Mrs A]

left the property. She and [Mr G] continued to live under the same roof. They continued to share a bed (although [Mrs A]s aid they had not “touched each other” for the last year). They continued to operate a joint account. [Mr G] continued to control

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the joint account and pay to [Mrs A] the amount that he considered was appropriate after meeting joint expenses. The fact that the relationship was exceedingly unhappy and was clearly going to come to an end does not mean that it had “ended” within the meaning of the legislation.

56 For these reasons I am satisfied that the parties not only separated in

September 2005 but that the relationship ended in that month. Hence [Mrs A]’s application for property settlement was filed within the time permitted by the legislation. Leave was not required to commence proceedings.

57 For the sake of completeness, I should observe that even if [Mr G]’s evidence

had been preferred in relation to the date the relationship ended, I would have been inclined to grant leave to [Mrs A] to commence proceedings out of time on the grounds of hardship. [Mrs A] would only have been a few months late in commencing proceedings if the relationship ended in May/June 2005. It is true [Mrs A] provided no adequate explanation for waiting as long as she did to commence proceedings. (Although counsel for [Mrs A] suggested that the reason was that [Mrs A] thought she was within time, there was no indication that [Mrs A] was ever aware of the limitation period.) However, the legislation speaks only of “hardship” and it is not essential that an explanation for delay be demonstrated, although I accept it can be a relevant factor.

Property settlement approach

58 I turn now to the competing claims for property settlement.

59 I am required to follow a four-step process in dealing with an application for property settlement pursuant to the Family Court Act 1979. These are:

• identify and value the assets and liabilities of the parties;

• assess the parties’ contributions to the assets;

• assess a range of factors set out in s 205ZG(4)(d) to (g) of the Act; and

• consider whether the order proposed is just and equitable.

The asset pool

60 I find the assets and liabilities at the time of trial to be as follows:

Assets [Mr G] [Mrs A]

$ $

[country] property 325,000

Household contents	3,000	2,000
Term Deposit	6,000

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Motor Vehicles 11,000 7,400

ANZ Account 300

Legal fees paid – add-back	10,200	12,401
Total	355,200	22,101
Liabilities

Loan from [KA]	1,000
Loan from [BA]	4,000
Loan from brother	15,000
ANZ Visa Card	1,900

Total	15,000	6,900
Net Assets	340,200	15,201

61 The total value of the assets to be divided is therefore $355,401.

62 All of the assets and liabilities in the table were agreed.

63 It was proposed on behalf of [Mr G] that the $40,000 payment made to [Mrs A]

at the time the relationship ended should be added back into the pool of assets. ([Mrs A]also included the $40,000 in her schedule of assets in her Papers for the Judge. I do not agree with this approach. Apart from anything else, some of [Mrs A]’s assets which are included in the table (e.g. the motor vehicle and legal fees) were funded from this money. There would be double-counting if I were also to add back the $40,000. The figures in the table are an accurate reflection of the parties’ current financial position.

64 I should note that there have also been changes in [Mr G]’s financial position

since separation. For example, he spent $19,000 of the funds he had on a vehicle which is now worth only $11,000. On the other hand [Mrs A] spent $8,000 on buying a car from [Narelle] which is still worth almost what she paid for it.

65 The only other matter to note is the legal fees incurred by [Mr G] include

valuation expenses of $2,750. I will hear from the parties later concerning costs issues, which would include issues relating to responsibility for the costs of valuations.

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Contributions

66 I had some difficulty in dealing with contribution issues since neither party was

an accurate historian. Matters of chronology were confused and evidence given in
affidavits was contradicted by evidence given orally. I have done the best I can.

67 Counsel for [Mrs A] initially submitted that contributions should be assessed as

having been made equally. In the course of the hearing, however, she accepted that
this proposition placed insufficient weight on the disparity in initial contributions.

68 It should be noted that in seeking an equal division of the assets, [Mrs A] was

conceding that the $40,000 payment should be included in the asset pool and she should be treated as having had that as part of her settlement. The effect of this concession was that she was seeking that contributions in relation to the current pool of assets should be assessed as having been made roughly in proportions 55:45 in favour of [Mr G].

69 Counsel for [Mr G] advised that he was instructed to submit that contributions should be assessed in the region of 90:10 in [Mr G]’s favour.

Initial contributions

70 [Mrs A] had no assets of significance at the time she moved into [Mr G]’s home.

She did have a household of furniture but I accept that [Mr G] did not want her to bring these possessions with her as he already had furniture.

71 [Mr G]’s assets at commencement of cohabitation were:

• a home in [the suburbs], which he owned free of encumbrance;

• a household of furniture;

• an unencumbered [motor vehicle] for which he had paid about $14,000;

• the funds remaining from a compensation payment.

72 I was left in doubt concerning the extent of [Mr G]’s compensation funds at

commencement of cohabitation. At the time [Mrs A] moved into [Mr G]’s home she
wrote him a letter in these terms.

“I, [Mrs A], who is going to live de-facto with [Mr G] as from June 1990.

[Mr G] owns the house, car and contents, $ cash before I met him.

I want none of the above items only my own items.

I, [Mrs A] agree to go half with [Mr G] in anything we made together since that date.”

73 It will be seen that the letter does not specify the amount [Mr G] had in the bank

and there was no other documentary evidence to establish how much he had. [Mr G]’s evidence suggested that he had anywhere between $75,000 and $90,000 in the bank. [Mrs A] initially claimed that [Mr G]had $50,000 in his account but acknowledged he had told her at the time that he had $85,000 left over from his compensation claim(s).

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I consider it most likely that [Mr G] had somewhere between $75,000 and the $85,000
(the latter being the figure he had initially provided in his affidavit).

74 There was no satisfactory evidence of the value of the [suburban] home at the

time the parties commenced their relationship, nor when they commenced living in the property. The home was sold in April 1993 for $85,000. There was about $82,000 remaining after commission and expenses of sale.

Contributions during the relationship

75 The parties did not live in the same home during the first three to four years of

their relationship. [Mrs A] was primarily responsible for looking after [Susan]. [Mr G] did not pay child support and his “in kind” support for [Mrs A] was nominal – at most a couple of thousand dollars over the period of three to four years, as well as acquiring some items to be used by [Susan] when she and [Mrs A] came to stay overnight in his home.

76 It was common ground that after the parties commenced living together they

were both involved in the care of [Susan] and in looking after the house and garden. A few years before the relationship ended, [Susan] moved to Perth to attend school. She lived with [Mrs A]’s daughter, [Narelle], and her family. The evidence was confused as to precisely when this move occurred; however, [Susan] was about to start Year 12.

77 Both parties were pensioners at the time they commenced living together.

[Mr G] was a disability pensioner. [Mrs A] had been receiving a “single mother’s pension” but began receiving a “wife’s pension” after cohabitation commenced. The only income received by either party during the time they lived together were their respective pensions and the modest interest they earned on investments mentioned below. The pension payments were of similar amounts but [Mr G] received somewhat more interest than [Mrs A].

78 [Mrs A] had been paying rent to the State Housing Commission but did not have to pay rent when she moved into [Mr G]’s home.

79 In about 2000 [Mrs A] received about $14,500 net by way of compensation for

injuries sustained in an accident. She deposited $10,000 of this into a term deposit and used the income from the investment to supplement her income. The balance of the money seems to have been spent on acquiring items for the home and on living expenses.

80 The only other significant influx of funds during the period of cohabitation was

the $60,000 the parties won in Favourite Numbers. [Mr G] finally conceded the winning ticket was purchased with joint funds and acknowledged that the windfall was contributed jointly. The proceeds were used to acquire the block of land in [country] in October 1992 at a cost of $23,000 (at least that was the figure given in the affidavits, whereas [Mr G] said in his oral evidence the cost was $21,000). The parties later erected a transportable home on the block. The evidence is unclear as to how much this cost. The basic home would have cost in the region of $72,000 to $75,000 but [Mrs A] recalls the all up expense was in the region of $88,000.

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81 Summing up the more significant elements of the financial contributions, it will

be seen that [Mr G] contributed a home which sold for $82,000 net, his car and his compensation payment of about $75,000 to $85,000. Later in the relationship [Mrs A] contributed her compensation payment of about $14,500. The parties jointly contributed the Favourite Numbers payment of $60,000. Apart from these financial contributions I am satisfied that the contributions during cohabitation were of equal value but [Mrs A]’s contributions prior to the commencement of cohabitation exceeded [Mr G]’s because she was primarily responsible for looking after [Susan].

Contributions after separation

82 [Mr G] has continued to live in the [country] home since separation. He has

paid the modest outgoings and has not been obliged to pay any rent or mortgage payments. He has continued to maintain the property. [Mrs A] has had to set herself up in accommodation of her own after separation. She has had to meet rent/board payments.

83 Neither party has provided any domestic services for the other party since

separation. There was no evidence that either party was required to do anything of
significance in looking after [Susan] since separation.

84 The only other issue requiring consideration after separation is the way in which

the parties have disposed of their funds, since there was some suggestion that [Mr G]
at least had disposed of funds he should not have.

85 [Mr G] used $40,000 of the money he had invested in order to pay [Mrs A] the

amount to which she was entitled under the Contract of Sale. He had originally offered her $45,000 but then suggested that he give her $40,000 on the basis he would meet the costs associated with the transfer of the property into his name. This would have included ad valorem stamp duty on the transfer (which could have been avoided had the parties documented their agreement in a different fashion.) [Mrs A] received not only the $40,000 but also still had the $10,000 she had invested from her compensation payment.

86 [Mrs A] claims that she used the money she received at the time the relationship

ended to purchase a car and that she has spent the rest on living expenses and legal
fees – and “three short holidays”.

87 It is unclear what funds [Mr G] had remaining at the time the relationship ended.

There was very little in the joint account in the early weeks of September 2005, which I consider was when the separation occurred. The statements do show that there were withdrawals totalling $2,650 from the account in August 2005, $3,500 in September 2005 and $1,950 in October 2005. [Mr G] claimed that these comparatively large withdrawals (given the parties’ modest circumstances and lack of fixed commitments) related to him replacing items [Mrs A] took and repairs on his motor vehicle. There was insufficient evidence to allow me to make a finding that he had inappropriately disbursed funds.

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Assessment of contributions

88 I have found that:

• [Mrs A] made a somewhat greater non-financial contribution than [Mr G] prior to the commencement of cohabitation in that she was primarily responsible for the care of the only child of the relationship for a number of years;

• the parties’ contributions during the relationship should be regarded as being of equal value save for a significant disparity in capital contributions (i.e. the unencumbered home, car and savings held by [Mr G] in comparison with the relatively modest contribution of [Mrs A]’s compensation monies); and

• the parties’ contributions after the relationship ended were of equal value.

89 The assessment of these contributions needs to be conducted in the context of

what was a very lengthy relationship. As is the case in the exercise of any discretionary power, there is a range of possible outcomes; however, I have determined that contributions should be assessed as having been made 72.5% by [Mr G] and 27.5% by [Mrs A]. In coming to that assessment I have placed fairly significant weight on the disparity in the capital contributions. In doing so, however, I have taken into account the concession made by counsel for [Mr G] in closing that the initial contributions were “eroded” over time.

Section 205ZD(3) factors

90 Neither party proposed any adjustment on account of the factors referred to in

s 205ZD(3). However, this position was adopted in the context of what could only be considered as ambit claims by both parties in relation to contributions. I am obliged to consider s 205ZD(3) in the context of the assessment I have made of contributions.

91 The parties are of similar ages. Both are in receipt of a pension.

92 [Mr G] gave contradictory evidence concerning [Mrs A]’s state of health and

prospects of working in the future. In paragraph 78 he said “we are of the same age and health” yet in paragraph 85 he said “I suffer from diabetes and have broken my spine in 2 places. I could [sic] not be able to work in the future. [Mrs A] has nothing wrong with her physically and I believe she would be able to work in some capacity”.

93 Neither party has worked for the last two decades and I do not consider it likely

that either of them will work in the future. After separation [Mrs A] ceased receiving the “wife’s pension” and commenced receiving a Newstart Allowance. By the time of trial she was in receipt of the aged pension. I accept that she has a “struggle to make ends meet”, especially with the increasing cost of rental accommodation in Western Australia. I accept that [Mr G] also is not in a strong financial position. At the present time he has the benefit of living in an encumbrance free property.

94 Neither party has any children to maintain or other persons dependent upon them. Neither has any superannuation.

95 One important question for me to determine is the relevance of the Contract of

Sale entered into in 2005. The circumstances in which this contract was executed are

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somewhat troubling. The impression I gained is that the solicitors involved may have acted for both parties to the same transaction. It seems that at least [Mr G] was led to believe that the contract would end the financial relationship between him and [Mrs A]. The contract was referred to even in his Papers for the Judge as “a final property settlement”. The Contract of Sale, was not, in fact, a final property settlement, as was properly conceded by counsel for [Mr G]. There were means available to the parties at the time to bring about a final resolution of property matters. For whatever reason, the parties did not utilise those procedures, thereby leaving themselves open to further claims.

96 I do not consider it necessary to discuss the conflicting evidence concerning the

circumstances in which the Contract of Sale was signed. The fact is that the contract is not a bar to further proceedings and it therefore does not matter particularly whether or not [Mrs A] was pressured into coming to an agreement or whether she had an adequate opportunity to consider the terms of the documentation. Similarly I do not consider it necessary to assess the conflicting evidence about the value of the property at the time the contract was signed, including the evidence presented to suggest that [Mr G] had obtained a “friendly” appraisal from a local agent. (In this regard it is noted that while the Contract of Sale entered into in September 2005 suggested that an appraisal had been obtained showing the property was worth $175,000, the valuation commissioned by [Mr G]for the present proceedings indicated that the property was worth $240,000 in May 2005.)

97 In my view the significance of the 2005 contract is that [Mrs A] received from

[Mr G] the sum of $40,000, which she has since spent. [Mr G] has kept the [country]
property and had the benefit of living in it for the last four years.

Assessment of s 205ZD(3) factors

98 I consider that the s 205ZD(3) factors do not favour either party save for the fact

that there is a significant disparity in the financial positions of the parties as a result of my assessment of contributions. This is a matter of some significance in a case where the asset pool is very modest. Neither party is in a strong financial position and both are at a stage in life where they will need support to allow them to live at anything other than the subsistence level possible on the aged pension. Both will need accommodation of some sort and the more they receive from the settlement the less dependent they will be on charity. On the other hand, significant regard should be paid to the fact that [Mr G] did make a significantly greater contribution of capital. Taking this account I consider that a further adjustment of 5% in favour of [Mrs A] is warranted, thereby reducing the disparity between the position of the parties by 10%.

Just and equitable?

99 The final step in the process of property adjustment is to step back and consider

whether or not the outcome based on the assessment of contributions and the
adjustment for s 205ZD(3) factors is just and equitable.

100 The discretion conferred by the legislation is wide and there is a range of results

that would fall within the ambit of the court’s discretion. I am satisfied that the

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division I propose is just and equitable. It takes account of the significant initial financial disparity, the length of the relationship and the fact that both parties are in need of capital in order to maintain an adequate standard of living.

101 In coming to my decision I recognise that both parties are going to be left in

quite difficult financial circumstances. [Mr G] will have to sell his property (as he says he has no means of borrowing any money) and will then have to re-house himself. [Mrs A] will have insufficient funds to obtain accommodation of her own and the funds she receives will therefore do nothing more than to supplement her very modest income.

Orders
102	I was asked by counsel for [Mr G] to proceed on the basis that if any settlement was ordered in favour of [Mrs A], the property would have to be sold.

103 I therefore propose making the following orders:

1.	The respondent, [MR G], do all acts and sign all documents necessary to effect the sale of the property at [the address of the country property] ], Western Australia and more particularly described as Lot xxx on Plan xxxx and being the whole of the land contained in Certificate of Title Volume xxxx Folio xxxx (“the [country] property”).
2.	The respondent shall cause the proceeds of sale of the [country] property to be disbursed in the manner following:

(a)	in payment of agent’s commission and other expenses of sale;
(b)	in payment to the applicant, [MRS A] , of such amount as shall result in the applicant receiving 32.5% of the net assets of the parties (such calculation to be made by reference to the list of assets and liabilities set out in the Reasons for Judgment);
(c)	in payment to the respondent of the balance.

3. The applicant shall transfer and assign to the respondent all her right, title, estate and interest if any in any assets currently in the possession of or registered in the name of the respondent.

4. The respondent shall transfer and assign to the applicant all his right, title, estate and interest if any in any assets currently in the possession of or registered in the name of the applicant.

5. The respondent be restrained by injunction from encumbering the [country] property.

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6. The application and response be otherwise dismissed.

I certify that the preceding [103] paragraphs are a true copy of the reasons for

judgment delivered by this Honourable Court

Associate