A, WM v S, J - [2014] SADC 41

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
A, WM v S, J
[2014] SADC 41
Judgment of His Honour Judge Tilmouth
7 April 2014
PROCEDURE - COURTS AND JUDGES GENERALLY - COURTS - CONCURRENT JURISDICTION OF DIFFERENT COURTS
Because of s 90(1) of Schedule 1 of the Family Law Amendment (De Facto Financial Matters and other Measures) Act 2008 (Cth), the court retains jurisdiction to hear the matter despite the referral of de facto disputes to the Commonwealth under the Commonwealth Powers (De Facto Relationships) Act 2009 (SA).
Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) Schedule 1 s 85, s 90(1), s 90RA(2); Commonwealth Powers (De Facto Relationships) Act 2009 (SA) s 3(3), s 4(1)(a); Family Law Act 1975 (Cth) Part VIIIAB, s 90RA(2); Commonwealth of Australia Constitution Act 1900 s 109, referred to.

LIMITATION OF ACTIONS - EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS - OTHER CAUSES OF ACTION AND MATTERS
Mr A seeks an extension of time in which to bring the proceedings under s 9(3) of the Domestic Partners Property Act 1966 (SA). This requires an 'application for the division of property must be made within one year after the end of the domestic relationship, unless the court after considering the interests of both domestic partners, is satisfied that extension of this period of limitation is necessary to avoid serious injustice to the applicant'.
The question whether a 'serious injustice' arises, includes an examination of the details of the relationship, the financial and other contributions to the acquisition of the assets, whether a serious imbalance in those contributions emerges, and the likelihood and extent of the applicant's entitlement to a division of property.
Delay in bringing proceedings held to be reasonable in the circumstances. As the applicant is likely to be awarded a considerable sum in relative terms, it is appropriate to grant an extension of time in the circumstances.
Parker v McNair (1990) DFC 95-087; Beavan v Fallshaw (1992) 15 Fam LR 686; Meyer v Melocco (1991) 14 Fam LR 765; Greene v Harte [2001] SASC 127; Ulowski v Miller [1968] SASR 277; Bull v Selmore (2004) 32 Fam LR 650; Rowley v Williams [2010] NTSC 45; McMaster v Wilkie-Snow [2011] ACTSC 183; Property (Relationships) Act 1976 (NZ); De Facto Relationships Act 1991 (NT) s 46; Property Law Act 1974 (Qld) s 276; Domestic Partners Property Act 1996 (SA), s 9(3); De Facto Relationships Act 1996 (SA) s 9(3); Family Law Act 1975 (Cth) s 44(5), referred to.
Cooper v Lees (2009) 267 LSJS 53; LF v RA [2006] 2 Qd R 561; Van Jole v Cole (2000) 26 Fam LR 228, applied.

FAMILY LAW AND CHILD WELFARE - DE FACTO AND OTHER RELATIONSHIPS UNDER STATE LEGISLATION - ADJUSTMENT OF PROPERTY INTERESTS
Consideration of the principles applicable to the determination of a property adjustment order under the De Facto Relationships Act 1996 (SA).
De Facto Relationship Act 1996 (SA) s 3; Domestic Partners Property Act 1966 (SA) s4(2), s 9(2)(c), s 10(1), s 10(2)(b), s 10(2)(c), s 11; Arnold v Dalton (2002) 84 SASR 482; Hogg v Roberts (2003) 87 SASR 248; Karpathiou v Clemente [2008] SASC 316; Hobbs v CT Tinling & Co Ltd; Hobbs v Nottingham Journal Ltd [1929] 2 KB 1; Bilous v Mudaliar (2006) 65 NSWLR 615; Del Gallo v Frederiksen (2000) 27 Fam LR 162; Property Law Act 1974 (Qld) s 276; De facto Relationship Act 1991 (NT) s 46; Nichol v Lane [2012] TASSC 25; Public Trust v Whyman [2005] 2 NZLR 696; Ottley v Chester (2010) 241 FLR 271; H v G (2005) 34 Fam LR 35; [2005] SASC 344, Mellibank 'The Changing meaning of "de facto" relationships' (2006) 1 CLF 1, referred to.
Norbis v Norbis (1986) 161 CLR 513; Hogg v Roberts (2003) 87 SASR 248; Arnold v Dalton (2002) 84 SASR 482; Howlett v Neilson (2005) 33 Fam LR 402; Nicole v Lane [2012] TASSC 25; Del Gallo v Frederiksen (2000) 27 Fam LR 162; H v G (2005) 34 Fam LR 35; W v D (2012) 115 SASR 61, 78, applied.

WORDS AND PHRASES CONSIDERED/DEFINED
"serious injustice"

A, WM v S, J
[2014] SADC 41
The issues

The plaintiff Mr A and the defendant Ms S, were parties to a de facto relationship for a number of years. Sometime after they separated, Mr A brought these proceedings seeking a judgment measured by ‘one half of the net value of the former matrimonial home’ on account of contributions he is said to have made to Ms S’s home mortgage.[1] Ms S maintained in her defence that he never made any such contributions. These reasons proceed to explain why the application for a division of property must succeed in part.
[1] Amended Statement of Claim.
Jurisdiction
Before embarking on a consideration of the merits, the somewhat complex question of jurisdiction to hear the action requires examination. Each of the Supreme, District and Magistrates Courts of this State are vested with jurisdiction to entertain applications for property adjustment orders under s 9 of the Domestic Partners Property Act 1966 (SA). However by s 4(1)(a) of the Commonwealth Powers (De Facto Relationships) Act 2009 (SA), the State legislature referred to the Parliament of the Commonwealth of Australia:
… financial matters relating to the parties to a de facto relationship arising out of the break down ... of those de facto relationships.
By s 3(3) thereof, the reference extends to ‘de facto relationships that ended before the commencement of this Act’ that is to say, before referral. In relevant respects the Commonwealth Powers (De Facto Relationships) Act was assented to on 10 December 2009 and proclaimed by Gazette to commence on 1 July 2010.[2] On the face of matters therefore, the referral to the Commonwealth applies to these proceedings as separation occurred no later than March 2009.
[2] Government Gazette 4.2.2010 p 461.
However by virtue of Schedule 1 to the Family Law Amendment (De Facto Financial Matters and other Measures) Act 2008 (Cth), the referral is effectively deferred. This situation arises because of s 90(1) of Schedule 1 which provides:
90De facto relationships that break down before transition time for a later participating jurisdiction
(1) Subject to item 90A, Parts VIIIAB and VIIIB, and subsection 114(2A), of the new Act do not apply in relation to the de facto relationship if it broke down before the transition time for the State.
Since the Family Law Amendment (De Facto Financial Matters and other Measures) Act commenced before the referral of powers by this State, the State of South Australia is a ‘later participating jurisdiction’ within the meaning of s 85 to Schedule 1 thereof. The State of South Australia is a referring State within the meaning of that Act.[3]
[3] Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth), s 90RA(2)
The ‘new Act’ is earlier defined in the Family Law Amendment (De Facto Financial Matters and other Measures) Act as the Family Law Act 1975 (Cth) as in force after commencement, and ‘transition time’ is defined in s 85 to Schedule 1 ‘for a later participating jurisdiction … the time the State becomes a participating jurisdiction’.
The Family Law Amendment (De Facto Financial Matters and other Measures) Act came into operation on 21 November 2008. The South Australian legislation effected a referral power to the Commonwealth as of 1 July 2010 with purported effect, as mentioned, over relationships ending beforehand. However Part VIIIAB to the Family Law Act 1975 (Cth) relates expressly to ‘financial matters relating to de facto relationships’. Accordingly, given the finding that the parties separated around March 2009, this action falls to be determined under the State legislation, despite the referral of the jurisdiction over de facto relationships to the Commonwealth. That is to say, as the relationship between the parties broke down before the transition time for the State of South Australia of 10 December 2009, the Family Law Act (Cth) does not apply to these proceedings. Of course to the extent of any inconsistency on that issue, the Commonwealth Act prevails: s 109 Commonwealth of Australia Constitution Act 1900.
Uncontroverted facts
The parties commenced living together as domestic partners in 1993. They finally separated in late February or early March 2009. There were one or two separations during the period of the relationship. Although there is some dispute about the precise length of such separation(s), this is immaterial in the particular circumstances of the case.
There can be no doubt they were domestic partners within the meaning of s 9(2)(c) of the Domestic Partners Property Act, because there were three children of the relationship born in 1993, 1995 and 2002 respectively. In any case they were undoubtedly in a de facto relationship between 2000 and early 2009 in the sense that they lived together on a genuine domestic basis as husband and wife for at least three years: s 4(2) & s 9(2)(c).[4] The two eldest children, a male and female, are now of adult years, whereas the youngest child remains in school and lives with her mother, as do the older siblings.
[4] T46.7-47.13.
During a period of separation, Ms S purchased a property in Elizabeth East, which she continues to occupy to the present day. She raised the finance to purchase through HomeStart. The loan account demonstrates approval on 13 June 1997, by way of a mortgage of $38,950. As of 4 February 2014 the outstanding balance of the loan had reduced to $11,845.67. It stood at $27,469 as at the time of separation.[5] For the most part the mortgage was serviced by way of regular direct debits of between $180-$220 per fortnight from her personal bank account. She received an income by way of a single parents benefit paid into that account over most of the period of the relationship although there is no proof in dollar terms of what that benefit amounted to.[6]
[5] Exhibit P2.
[6] T100.5.
For the entire duration of their relationship, Ms S was principal homemaker, fully occupied in raring the children. She now works as a full time cleaner five days a week with Anglicare SA, on an average of $1,236 per fortnight, plus a small contribution from the two adult children by way of board. A Taxation Department summary submitted by her, establishes that she earnt $35,086 gross in this employ and that she paid $3,688 in tax for the financial year ended 30 June 2013.[7]
[7] Exhibit D7.
For his part, Mr A is currently in receipt of a Disability Support Pension of $695.00 per fortnight, plus fortnightly supplements of $120.20 (Exhibit P4). Since 16 March 2012 he has resided in a Housing SA rental home in Elizabeth East at a rental of $172.20 per week (Exhibit P5). He contributed to the relationship in other non-financial ways as father to the children and domestic partner to Ms S.
Facts in issue
When cohabitation commenced, Mr A was working as a farm hand at Virginia. He subsequently obtained employment with Solver Paints. There he sustained injuries in an industrial accident during 1996, for which he claims to have received a worker’s compensation payment of $65,000 in 1998 or 1999. He maintains that he gave $20,000 of this by way of Bank cheque to Ms S, earmarked for the mortgage.
A ‘couple of years after receiving that payment’, Mr A subsequently obtained work at Inghams Chickens.[8] There he suffered a second compensable work injury for which he received compensation of $64,500 on 9 June 2005, of which he claims a further $20,000 was paid into the mortgage account.
[8] T27.33-.37.
Ms S specifically denied either payment was made. In her defence (she was unrepresented), whilst admitting compensation of $65,000 and $64,550 were received by Mr A at those times, she alleged they were ‘largely retained by the plaintiff for his exclusive use to the disadvantage of the defendant and the three dependent children’.[9]
[9] Counter-claim para 2.
Mr A suggested during the course of his evidence that he paid for guttering, a stove and a refrigerator. No evidence was given as to the value of those items or in proof of such expenditure.[10] In any case, it was claimed by the defendant that they shared the cost of purchasing those items together, which seems likely on the evidence, so this issue cannot be taken any further.
[10] T23.6-.22.
An extension of time required
Mr A seeks an extension of time in which to bring these proceedings. His summons was issued on 5 September 2012, that is practically three and a half years following separation. Section 9(3) of the Domestic Partners Property Act provides:
9 – Property Adjustment order
(3)An application for the division of property must be made within one year after the end of the domestic relationship unless the court, after considering the interests of both domestic partners, is satisfied that extension of this period of limitation is necessary to avoid serious injustice to the applicant.
This provision is identical in terms to s 9(3) of the preceding De Facto Relationships Act 1996 (SA). Neither conferred a discretion at large to extend time. Rather they required the court to consider first, the interests of the parties and secondly, whether an extension beyond one year was necessary to avoid serious injustice to an applicant. It might be noted that the time limitation in this State relates to ‘the division of property’, as opposed to property settlements compendiously sometimes described as an ‘adjustive property order’. Although the heading to s 3 speaks of a ‘property adjustment order’, the terminology within the section is universally one of ‘the division of property’: see Greene v Harte.[11]
[11] [2001] SASC 127.
The South Australian provision permitting extensions of time in de facto relationship matters, stands in stark contrast to other Australian jurisdictions in at least two material respects. First, the interstate provisions provide for a two year limitation period in applications for property settlement.[12] The same two year period applies to actions over which Commonwealth Family Law jurisdiction is exercised.[13]
[12] Domestic Relationships Act 1994 (ACT) s 13(1); Property (Relationships) Act 1984 (NSW) s 18(1); De Facto Relationships Act 1991 (NT) s 14(1); Property Law Act 1974 (Qld) s 288(1); Relationships Act 2003 (Tas) s 38(1); Relationships Act 2008 (Vic) s 43(1); Family Court Act 1997 (WA) s 205ZB(1).
[13] Family Law Act 1975 (Cth) s 44(5).
Secondly, equivalent provisions require the court to consider whether greater hardship would be caused to the applicant than would be caused to the respondent by granting leave to proceed.[14] Whilst it has been held that even though on balance greater hardship will fall to an applicant, the courts were not thereby automatically obliged to make an order in an applicant’s favour: Parker v McNair,[15] Beavan v Fallshaw,[16] Meyer v Melocco.[17]Those provisions call for a two staged approach, that is the preponderance of hardship and then the exercise of the residual discretion, including the reasons for delay in bringing applications: Parker v McNair,[18] Bull v Selmore.[19]
[14] Domestic Relationships Act 1994 (ACT) s 13(2); Property (Relationships) Act 1984 (NSW) s 18(2); De Facto Relationships Act 1991 (NT) s 14(2); Property Law Act 1974 (Qld) s 288(2); Relationships Act 2003 (Tas) s 38(2); Relationships Act 2008 (Vic) s 43(2); Family Court Act 1997 (WA) s 205ZB(2).
[15] (1990) DFC 95-087, 76, 159.
[16] (1992) 15 Fam LR 686, 687.
[17] (1991) 14 Fam LR 765.
[18] (1990) DFC 95-087, 76, 159.
[19] (2004) 32 Fam LR 650,[52]-[53].
In stark contrast the local provision recognises no balancing of hardship. On the contrary, it requires a consideration of the interests of both parties, and then whether an extension of time is necessary to avoid ‘serious’ injustice to the applicant. By ‘serious’ it must have been intended something grave, weighty, critical or important was required. Clearly mere injustice would not be enough. Howsoever construed, the adjective ‘serious’, erects a significant restraint over the discretion to extend time.
The situation here is quite different from the exercise of an unconstrained discretion to extend time when the explanation for the delay, the hardship to the plaintiff if the action is dismissed, prejudice to the defendant, and the conduct of the defendant in the litigation are classically relevant considerations: Ulowski v Miller.[20]
[20] [1968] SASR 277, 280.
The phrase ‘serious injustice’ also appears in s 8(1) of the Domestic Partners Property Act 1996 (SA):
8—Power to set aside or vary domestic partnership agreement
(1)If a court is satisfied that the enforcement of a domestic partnership agreement would result in serious injustice, the court may set aside or vary the agreement to avoid the injustice.
A practically identical provision to this section is found in s 276 of the Property Law Act 1974 (Qld) and in s 46 of the De Facto Relationships Act 1991 (NT). Of the former White J (as her Honour then was) wrote in LF v RA:[21]
[21] [2006] 2 Qd R 561.
Section 276: serious injustice
[51] Section 276 provides:
(1)On an application for a property adjustment order, the court may vary all or any of the provisions of the agreement [cohabitation agreement] if the court is satisfied —
(a) enforcement of the agreement would result in serious injustice for a party to the agreement …
The applicant contends that the gross inequality between what the respondent would receive based on the values in Ex 1 of the three parcels of land and what the applicant would receive alone causes serious injustice to the applicant. On the figures calculated by Mr Cooper, with which Mr Laurie made no argument, the respondent receives a notional $464,500–94% of the total value of the property as against the applicant’s $33,530.87 or 6% of the value. This approach is reflective of the judgment of Riley J in Van Jole v Cole (2000) 26 Fam LR 228.
[52] Mr Laurie contends that the approach to the expression “serious injustice” should not be equated with the term “hardship” but with the concept of a failure to do justice and should be construed “as a condition or result achieved in an unjust manner embodying notions of duress, suppression of evidence, unconscionability or other militating factors which would tend to vitiate informed consent,” written submissions [30]. He argued that an improvident bargain does not constitute injustice or unconscionability and that the applicant should be held to her agreement. He referred to ss 79A and 90K of the Family Law Act 1975 (Cth). Those provisions expressly limit setting aside financial agreements to those obtained by fraud etc. No such limitation is found in s 276 or Pt 19 of the Act. Whilst this court may be assisted in its approach to Pt 19 by the jurisprudence of the Family Court of Australia it is to the words of the Act that recourse must be had initially.
[53] The Online Oxford English Dictionary defines “injustice” as “The opposite of justice; unjust action; wrong; want of equity, unfairness.”
[54] Some assistance may be obtained from the approach in Van Jole considering the same expression. The Queensland Law Reform Commission in the De Facto Relationships Report No 44 June 1993, expressly stated that “serious injustice” in what is now s 276 was the same test as in the Northern Territory and New South Wales legislation, at p 34.
[55] The De Facto Relationships Act 1991 (NT) contains a provision (s 46) which permits a court to vary or set aside a cohabitation agreement if its enforcement would lead to serious injustice between the parties. In Van Jole the magistrate below after an examination of the relationship and the circumstances in which the agreement came to be signed concluded that the respondent had received far less than she should have under an equitable distribution. Riley J hearing the appeal concluded at 233 [29] and [30]
In my view she [the magistrate] determined that the imbalance was sufficient by itself to give rise to the prospect of serious injustice between the parties. The circumstances of the execution of the agreement explained how the respondent came to enter into such an agreement and, possibly, added to the existing serious injustice.
It was not submitted that her Worship incorrectly characterised the imbalance. Given the findings of her Worship regarding the contributions of the parties and her finding that the respondent was to receive $28,000 out of a total pool of $128,000, her conclusion was compelling.
[56] It is not, of course, a serious imbalance of itself which will give rise to a conclusion of serious injustice. The detail of the relationship and the parties’ financial and other contributions to the acquisition of the assets in the course of the relationship will be determinative of that question.

Riley J (as the Chief Justice then was) in Van Jole v Cole[22] considered the expression ‘serious injustice’ in the Northern Territory legislation should be given its ordinary meaning of ‘a considerable wrong or unfairness’:
[15] It is clear that the Court will not interfere with a separation agreement simply because it believes a different form of agreement was more appropriate. Further it will not interfere where there is simple injustice. Rather, it must be satisfied that a failure to intervene would result in “serious injustice” between the parties. What is meant by that expression is not defined in the Act and has not been explored in any helpful way in any case that either counsel or myself have been able to locate. The expression is not a term of art and does not have any technical legal sense. It is therefore to be understood in the sense in which it is commonly used in the English language.
[16] It is necessary for a court to look at the whole of the surrounding circumstances of such an agreement in order to determine whether, in accordance with the ordinary English usage of the words, a serious injustice arises. An injustice is the opposite of justice and includes the concepts of a wrong or unfairness. The word serious in this context suggests weighty, grave or considerable. I agree with the submission made by Mr Young, who appeared on behalf of the respondent, that in the circumstances of this matter the expression "serious injustice" should be given its ordinary meaning of a considerable wrong or unfairness.
[22] Above.
It was held in Public Trust v Whyman[23] that leave should be granted in applications for the division of estates, whenever a meritorious claim would otherwise be unenforceable within the meaning of s 88(2) Property (Relationships) Act 1976 (NZ), which otherwise cannot be granted unless refusing leave would cause serious injustice. The court said:
[47] We think that the “serious injustice” test can be applied directly and that there is no need to put a gloss on the words chosen by Parliament. In particular, we think that Heath J went too far when he suggested that the level of injustice required to warrant leave is “intolerable”. If that is what Parliament intended, it would presumably have said that leave should only be granted if necessary to avoid “intolerable injustice”.
[23] [2005] 2 NZLR 696.
The decision of White J in LF v RA was applied by Mildren J in Ottley v Chester[24] in the context of an application to extend time in which to bring proceedings, on the basis that by refusing to set aside a separation agreement, ‘greater hardship would be caused to that partner by refusing leave than would be caused to the other partner by granting it’, within the meaning of s 14(2), s 46(2) of the De Facto Relationships Act 1991 (NT). It was likewise applied by Master Luppino in Rowley v Williams[25] in the context of an application to set aside a separation agreement and by Besanko J in McMaster v Wilkie-Snow,[26] again an application to set aside a separation agreement. His Honour added ‘one could also describe the requirement in terms of significant or substantial unfairness’.[27]
[24] (2010) 241 FLR 271, [58].
[25] [2010] NTSC 45, [9].
[26] [2011] ACTSC 183.
[27] Above [44].
According to the authorities therefore, the question of ‘serious injustice’ in the context of an extension of time in which to bring property adjustment proceedings, or to set aside a separation agreement, involves amongst other things an examination of the nature and details of the relationship, the financial and other contributions to the acquisition of assets, whether a serious imbalance in those contributions emerges, and whether a significant or substantial wrong or injustice is occasioned to the applicant.
Section 9 (3) of the Domestic Partners Property Act was considered in the Full Court in Cooper v Lees,[28] Doyle CJ (with whom Nyland and Duggan JJ agreed) said this of the provision:
[30] But having regard to the terms of s 9(3) of the Act, an explanation for a delay of more than one year in instituting proceedings is not the only relevant matter. Apart from the explanation for the delay, which I consider to be relevant, the court must consider the interests of both partners. No doubt that authorises and requires the court to have regard to the likelihood of a claim succeeding, and the impact of a successful claim on the unsuccessful party. But ultimately the court must be satisfied that an extension of the limitation period “… is necessary to avoid serious injustice to the applicant”. Injustice can include the circumstances of and reason for the delay in instituting proceedings. But more significant factors, I consider, will be the prospects of the claim succeeding, the nature and amount of the claim, and the impact on an applicant of the refusal of an extension of time.
[28] (2009) 267 LSJ 553, [2009] SASC 386.
For his part Mr A has few assets to speak of. He manages just to make do on his pension. Given his work history and the fact that he qualifies for a Disability Pension, it is practically all but certain that he will never again find gainful employment. For her part Ms S works hard to keep herself and the three children residing in the house. Direct debits into the mortgage are now $218.62 per week, thus leaving her about $400.00 to meet all the remaining expenses for the household of four people.
When it comes to the reasons for delay, the plaintiff lays claim to the fact that he was hoping there might be ‘some sort of reconciliation’. Ms S rejects the notion that there was such a prospect, but of course it is not infrequent that one party to a relationship erroneously anticipates that reunion is achievable. As it is not possible to reach a concluded view on this issue, it is a neutral consideration in the circumstances.
Secondly, Mr A considered it inappropriate to disrupt the life of his children by uprooting them or risk moving them out of the home should he issue proceedings any earlier.[29] This is understandable enough given that the children were of school age in 2009 and 2010.
[29] T 40.4-14.
These conclusions direct the inquiry to a consideration of whether an extension of time is necessary to avoid serious injustice to Mr A. That issue necessarily entails an examination of the merits and particularly whether there is a likelihood of recovery and the extent thereof. As this aspect of the matter is very much bound up in the consideration of the overall merits, a determination of the discretion to grant an extension of time is therefore dealt with later.
Legal principles
Mr A seeks an order within the meaning of s 11 of the Domestic Partners Property Act and as a consequence, the payment of a lump sum pursuant to s 10(2)(c) thereof. Even though his Statement of Claim pleads relief by way of a sale of the home and an equal distribution of the proceeds (as would be permitted under s 10(2)(b)), that course was not pursued by his counsel. An agreed valuation was tendered giving the home a current market value of $125,000,[30] leaving an equity in the defendant’s hands of approximately $113,000.
[30] Exhibit P1.
Further by s 10(1) thereof, the court is empowered to make ‘such orders as it considers necessary ... in a way that is just and equitable’, and in so proceeding ‘must consider the financial and non-financial contributions made directly or indirectly by or on behalf of the domestic partners’ in the course of the relationship (s 10, s 11(1)(a)). These provisions are described as conferring a ‘special jurisdiction … to provide for just and equitable resolutions of property disputes between persons who have lived in a de facto relationship’: Greene v Harte.[31] Still further, pursuant to s 11(1)(b) the court:
… must consider the contributions (including home making or parenting contributions) made by either of the domestic partners to the partner or to the children of the partners or either of them.
[31] [2001] SASC 127, [16] per Martin J.
As pointed out by Mason and Deane JJ in Norbis v Norbis,[32] an order for the division of property:
… is discretionary because it depends on the application of a very general standard- what is "just and equitable" which calls for an overall assessment in the light of the factors mentioned in s.79(4), each of which in turn calls for an assessment of circumstances. Because these assessments call for value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right, the making of the order involves the exercise of a judicial discretion.
[32] (1986) 161 CLR 513, 518.
In making appropriate orders, the court is not required or charged with the obligation of settling all outstanding financial issues between the parties, nor is it required to provide for the continuing ‘maintenance’ of one party by another or to take into account their future financial prospects, or as a substitute for child support for instance, and it is not its role to remedy any justified grievances or to compensate for disappointment or unfulfilled expectations: Hogg v Roberts,[33] Karpathiou v Clemente.[34] It is now authoritatively settled in this State that ss 10(1), 11(1)(a) & (b) of the Domestic Partners Property Act, that both the ‘financial circumstances’ and ‘the needs and means’ of the parties have general relevance, even though these are matters not specifically spelt out in the legislation: H v G.[35]
[33] (2003) 87 SASR 248, [11-14].
[34] [2008] SASC 316, [31].
[35] (2005) 34 Fam LR 35, [103].
With the fundamental aim of bringing a ‘just and equitable’ division of property to bear on the exercise, the matters likely to be relevant include the length of the relationship and the immediate needs of the parties. The parties presented their case in this instance on the basis of a global approach rather than an asset by assets basis: Norbis v Norbis.[36] Indeed the only asset of substance referred to was the home, which consequently became the prime, and if not the sole focus of their attention, apart from the few household items mentioned earlier.
[36] (1986) 161 CLR 513, 523.
Once again as Mason and Deane JJ further point out in Norbis v Norbis:[37]
….there is much to be said for the view that in most cases the global approach is the more convenient. … although mathematical precision is certainly not required, there is ordinarily a need to know the circumstances in which assets were acquired and the general extent of each party's contribution to them.
[37] (1986) 161 CLR 513, 518.
Thus it is necessary to bring into account relevant contributions made by both parties to each other and to the children, including homemaking and parenting contributions during and after the relationship. The latter should not be seen as inferior to financial contributions. However the process does not require an examination in minute detail: Arnold v Dalton,[38] Howlett v Neilson.[39]As Bleby J explained in Arnold v Dalton,[40] circumstances may dictate that a Judge ‘wield a broad axe while considering evidence concerning particular major items of property, and who contributed’, or as Doyle CJ suggested in Hogg v Roberts,[41] a ‘reasonably broad and practical approach is required’.
[38] (2002) 84 SASR 482, [25], [34], [49]-[50].
[39] (2005) 33 Fam LR 402, 410.
[40] (2002) 84 SASR 482.
[41] (2003) 87 SASR 48, [17].
Specific findings of facts
Taken by the evidence of both parties, it is abundantly clear they both contributed to the relationship whatever they received from any source. Mr A said that he paid for food, electricity, utensils, household bills and utilities.[42] There is no proof of what his wages were when he was in work. Withdrawals were made, usually from ATM’s, as required.[43] Although their respective incomes were initially deposited in their own personal accounts - neither records of which were produced to the court – funds were used for ongoing costs of living, providing for the children and for that matter, to spend on the ‘pokies’ and alcohol. These were withdrawn on an as needs basis, from whichever account happened to be in credit, or in credit enough, at the particular point in time.
[42] T23.10, T24.20, T41.3.
[43] T88.27-91.22.
For example, Ms S regularly withdrew money from the mortgage account on a needs basis for joint expenditure.[44] There was something in the order of $52,000 in redraws on the mortgage account alone.[45] It is clear from the HomeStart account, that the mortgage was serviced with some exceptions identified later, by Ms S through regular direct debits from her own savings account, a course facilitated by Mr A’s financial contributions to the regular household expenditure. Judged by the considerable number of dishonour fees, she often had too few funds available to meet such payments.
[44] T116.1-.37.
[45] T48.26-49.3.
Contributions to the mortgage?
Mr A did not contribute to the mortgage as such, at least in direct terms. There can be no doubt that all of his income was otherwise devoted to the living and social expenses for the family. The same can be said of Ms S. However the situation with respect to servicing the mortgage stands differently when it comes to contributions made by him directly into the mortgage account from two worker’s compensation pay-outs he received.
An acute factual dispute arose as to whether two sums of $20,000 were paid by Mr A for the purposes of reducing the mortgage, sourced from his workers compensation payments. There is only Mr A’s word as to the first, as there is simply no documentary support for it. The HomeStart accounts which form a complete record of the mortgage, contain no mention of it. The fact that there was such a first payment is vehemently denied by Ms S. The evidence of Mr A was at times difficult to follow, however the fact that he received two significant payouts was not in dispute. Ms S conceded as much in her defence, pleading she was aware of the first payment of $65,000 and a second of $64,550, at relevant times.[46]
[46] Paras 11.1 and 16.
For reasons to be outlined shortly, Ms S’s denial of receiving any such payments must be rejected. However this conclusion does not prove they were made. To adopt the famous dictum of Scrutton LJ in Hobbs v CT Tinling & Co Ltd:[47]
If by cross-examination to credit you prove that a man's oath cannot be relied on, and he has sworn he did not go to Rome on May 1, you do not, therefore, prove that he did go to Rome on May 1; there is simply no evidence on the subject.
[47] [1929] 2 KB 1.
Despite the word of Mr A, there is simply insufficient proof of the first payment. He mentioned through his counsel that he could not afford the cost of obtaining bank statements to verify the alleged contribution, which given his economic constraints may well be the case.[48] Despite the fact that he was offered the opportunity by way of an adjournment to obtain a copy of the relevant page of his bank statements, or a copy of the bank cheque itself, he declined to do so.[49] Accordingly, insofar as his case depends on a first payment of $20,000 it must fail for lack of proof. Moreover, there is a distinct chance that he is confusing this supposed payment, with other payments made into the mortgage account, to be detailed later and which in aggregate, are not in a significantly lesser sum.
[48] T41.10-.25.
[49] T97.7-98.5.
The second payment of $20,000 stands in distinct contrast to the first. The fact of such payment into the mortgage account is conclusively proven by a succession of documents having a close nexus in point of time, viz:
·9 June 2005 – Trust Account statement from his solicitors showing a payment to him of $57,810: Exhibit P3;
·10 June 2005 – extract from his personal bank account recording a deposit of $57,810: Exhibit P6;
·30 June 2005 – extract from his personal bank account recording a withdrawal of $20,005.40: Exhibit P6;[50]
·6 July 2005 – a deposit of $20,000 into the HomeStart account of Ms S: Exhibit P2.
[50] The $5.40 is likely to be a bank cheque fee.
Ms S denied in her defence any such contributions into the HomeStart account, including this second one. Through her father, who was permitted to assist her, she initially vehemently claimed Mr A ‘made no contribution’.[51] When confronted with the bank statement, she asserted again through her father ‘it shows a withdrawal during June 2005 – it doesn’t necessarily show that that amount of money was paid off SJ’s mortgage’.[52] Then it was put to Mr A that the $20,000 deposit came not from him but from somewhere else.[53] When taxed as to what other source it could possibly have been, this stance was maintained.[54] Then when confronted with the corresponding deposit into the mortgage account itself, she capitulated, finally confessing that it was received by her.[55]
[51] T19.22.
[52] T43.33-.35.
[53] T49.13-.34.
[54] T50.3-.52.6.
[55] T52.22-.53.1, T55.20-.22.
Although these exchanges occurred during the course of submissions rather than in evidence, this reversal in the face of convincing evidence to the contrary, reflect poorly on her. But there is more. Numerous deposits into the mortgage account in fairly substantial round figures sums totalling $17,365.32 between 8 June 2000 and 14 November 2003, were put to her under cross-examination.[56] She was utterly unable to explain these substantial deposits.[57] She herself had no capacity to raise sums of this magnitude. Nor could she point to any other source of the deposits. The inevitable conclusion is that such amounts could only have been attributable to Mr A. The fact that sums of this order first appear in 2000, just so happen to correspond in point of time following the first compensation award.[58]
[56] T101.19-103.4, 105.21-107.1.
[57] T103.5-104.28, 107.4-.22, T111.5-112.20.
[58] T47.35-48.19
This analysis leads to the conclusion that by and large each party contributed what they could to the relationship, as might be expected. Yet it is proven that Mr A made atypical contributions of $37,365.32 between 2000 and 2009 directly into Ms S’s mortgage account.
However these conclusions do not end the inquiry. Once he received the compensation awards, he was not only out of work, but was disentitled to Commonwealth benefits for a period of two years thereafter, so that during those periods he could not have contributed anything by way of wages.[59] It follows as a general consideration that he was contributing by way of lump sums over at least four of the nine years in question, rather than by way of regular income from employment, so the net result is essentially the same in those four years.
[59] T60.37-.62.21, T92.23-.38.
There is one further complication. Not all the compensation awards were received by way of income maintenance, as a proportion was attributable to compensable disabilities as apposed to income maintenance, which ordinarily would not be a source of income available to the relationship. It is demonstrated that so far as the 2005 award was concerned, $37,261.30 was directly attributable to ‘non-economic’ losses. This represents roughly a little more than half of the total of $64,550 received into his solicitor’s account. There is of course nothing to demonstrate what the situation was in this respect as regards the earlier compensation award.
What is just and equitable?
We are left in a virtually intractable situation from both points of view. Both parties live in relatively impoverished circumstances. Mr A has no assets, whereas Ms S has a significant equity in a very modest home. She has more outgoings than he does, on account of the children living with her, and especially with the youngest still at school. Mr A will not work again and yet she has to remain at work in order to meet the ongoing commitments to living expenses and to service the mortgage.
The fact remains that the stated contributions were largely rendered possible by the award components for non-economic loss. An unquantifiable portion of the contribution from the earlier series of payments must also have been attributable to non-economic components. Such contributions would not otherwise have been available to support the relationship.

In those circumstances it would otherwise be just and equitable as a first step to make an order for the payment of a sum of money that represents a proportion of the increased capital value of the property contributed by Mr A over the course of nine years of the relationship after the house was purchased: Bilous v Mudaliar,[60] Del Gallo v Frederiksen.[61]
[60] (2006) 65 NSWLR 615; (2006) 35 Fam LR 55 [49].
[61] (2000) 27 Fam LR 162, [48]-[50].
Doing the best one can in these imprecise circumstances, an appropriate property adjustment order at this stage of the analysis would then be one in favour of Mr A of $20,000, subject to two remaining issues. This sum corresponds in round figures with what seems to have been his likely contribution to the mortgage, from the non-economic components of the two compensation payments.
Rent free occupancy
The first of these issues is to acknowledge that during the course of the relationship, Mr A lived in the property without incurring any obligation to pay rent. Had he lived elsewhere, the position would obviously have been different, as it is currently. Given this situation, the court raised with his counsel whether this is a factor to be taken into account. Mr Laidlaw contended on his behalf that it was an irrelevant consideration, citing in support the decision of the Full Court in H v G.[62] That was a case in which the parties lived in a home jointly owned by them. Upon separation the respondent remained in occupation, a quite different situation to the present. It is not necessary to go any further into the facts, except to record that the trial Judge and the Court of Appeal considered it was inappropriate to make an adjustment on account of rent free occupancy in the specific circumstances of this case.[63]
[62] (2005) 34 Fam LR 35; [2005] SASC 344. He also referred to Mellibank ‘The Changing meaning of "de facto’ relationships" (2006) 1 CLF 1, p 2.
[63] H v G above [69], [70].
The case law demonstrates that when one party to a de facto partnership lives rent free in a property owned by the other, that is a relevant consideration, in conjunction with all the other aspects of the case bearing upon a just and equitable resolution. Hence in Nichol v Lane,[64] Holt AsJ reasoned:
The rent free accommodation provided by the respondent will not be converted into a notional rent, but will simply be taken into account as a factor to which appropriate weight will be given in the overall assessment of what, if any, adjustive property order is just and equitable.
[64] [2012] TASSC 25, [17] & [61].
There can be no doubting this conclusion as a matter of authoritative principle following the decisions of the Court of Appeal in Bilous v Mudaliar[65] and Del Gallo v Frederikson.[66] These decisions involve different situations. They hold that it is an error to take into account the provision of a home as the contribution of one party and then deduct the notional rent from the other party's contribution, as that was an impermissible double counting, and to take the rent free circumstances as ‘a countervailing benefit … to be set off against (his) contributions’.[67] There was however no quarrel in either decision with the broader proposition that:[68]
… The burden borne by one party to the relationship in providing accommodation to the other is a matter to be taken into account, as is the corresponding advantage to the other party.
[65] (2006) 65 NSWLR 615.
[66] (2000) 27 Fam LR 162.
[67] Bilous v Mudaliar, above [75], [119], [121], [128], Del Gallo v Frederikson, above [53].
[68] Bilous v Mudaliar, above, [115]-[117], Del Gallo v Frederikson, above [53].
In the circumstances of this case, given the increased equity in the house, enhanced by the stated contributions to the mortgage by the plaintiff, and his commitment financially and non-financially to the maintenance of the relationship over the nine years in question, it would be against principle to reduce on account of rent free occupancy what is otherwise effectively an equity interest in the property, as a set off against that contribution. In those circumstances it is inappropriate to erode Mr A’s due entitlement because of this consideration in the combined circumstances.
As to the post separation situation, this is not a case of co-ownership of a property in which one party continues to live, the other having departed on the breakdown of the relationship. As was pointed out by the Full Court in W v D:[69]
The resident co-owner who continues to pay the mortgage does so in order to enjoy the occupation of the entire property in the knowledge that the breakdown of the domestic relationship makes it unlikely that he or she will again be bound to share it with his or her former partner.
[69] (2012) 115 SASR 61, [78], compare Bilous v Mudaliar, above [181].
In any case, so far as pre-separation is concerned, there is practically no evidence in monetary terms of what an appropriate rent might be in this instance for the subject house. The current rate paid by Mr A is of little assistance, since it is subsidised. Mr A was in occupation of the house for nine years over the course of a mortgage now spanning nearly 14 years. Even if one were to allow $50 per week or $2,600 per year, that would produce $23,400 over nine years and $100 per week produces $46,000. Such modest estimates are more than offset by her increasing equity in the property attributable to his contributions thereto, not to mention the non-financial components.
An extension of time revisited
We come full circle to the issue of extending time, the second of the remaining issues remaining to resolve. The explanation for the delay in bringing the proceedings was a reasonable one. The length of the delay is relatively speaking, considerable, but it endured only for so long as to sustain the stability of the children as demonstrated earlier.[70]
[70] Paragraph [29]
It follows from the above analysis that it is likely Mr A would recover something in empirical terms, but which would be significant in relative terms. This is a considerable sum of money in the context of his present earnings and outgoings and it represents a little under 20 per cent of the equity in the property. To that extent there would be a significant injustice to him. The operative question then, is whether there is ‘serious injustice’ to him should an extension of time be refused. It should be readily acknowledged that he would feel a justifiable sense of grievance should he be entirely shut out of a remedy and he might well perceive, not without reason, that Ms S has received a windfall gain. In the combined circumstances there is therefore ‘serious injustice’ in the sense described in the cases cited earlier, so than an extension of time should be granted and his action for a division of property allowed.
Orders
The application for an extension of time is granted. The application for a division of property is allowed. On the basis of the above findings it is proposed to make an order for the payment by Ms S the sum of $20,000 to Mr A. Before doing so, the parties are entitled to be further heard as to ‘a way that is just and equitable’ to make such a payment pursuant to s 10(1) of the Domestic Partners Property Act, and in particular whether it is open and appropriate that such sum be paid by instalments or postponed until some future time? The parties should also be heard on the issue of costs.