ALLBROOKS & DECARLI
[2020] FCCA 2594
•17 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ALLBROOKS & DECARLI | [2020] FCCA 2594 |
| Catchwords: FAMILY LAW – Property – de facto relationship – dispute as to period of relationship – dispute as to whether just and equitable to alter property interests of parties – Held de facto relationship existed for 6 years and 7 months – Held not just and equitable to alter property interests of parties – application dismissed. |
| Legislation: Family Law Act 1975 (Cth), ss.79, 90SF, 90RD, 90SM, Pt VIIIAB |
| Cases cited: Babray & Babray [2019] FCCA 3514 |
| Applicant: | MS ALLBROOKS |
| Respondent: | MR DECARLI |
| File Number: | LEC 447 of 2018 |
| Judgment of: | Judge L. Turner |
| Hearing dates: | 11,12 November 2019, 28,29 January 2020 & 14 April 2020 |
| Date of Last Submission: | 14 April 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 17 September 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Page |
| Solicitors for the Applicant: | David Hunter Solicitor |
| Counsel for the Respondent: | Ms McDiarmid |
| Solicitors for the Respondent: | Beek & Gallagher Legal |
FINAL ORDERS
That it is declared, pursuant to section 90RD Family Law Act 1975, for the purposes of any order pursuant to section 90SM Family Law Act 1975, the Applicant and the Respondent were in a de facto relationship for the following periods:
(a)2010 to October 2014.
(b)2014 to April 2015.
(c)2015 to April 2017.
That the application to alter the interests of parties to a de facto relationship filed by the applicant Ms Allbrooks on 26 July 2018 is hereby dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Allbrooks & Decarli is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
LEC 447 of 2018
| MS ALLBROOKS |
Applicant
And
| MR DECARLI |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties are in dispute as whether the interests of the parties to a de facto relationship are to be altered.
Proposals
The applicant, Ms Allbrooks (Ms Allbrooks) seeks orders whereby:
a)Mr Decarli pays Ms Allbrooks $425,000.
b)Otherwise each party keep to the exclusion of the other the property in their name.
The respondent Mr Decarli (Mr Decarli) seeks orders whereby:
a)Ms Allbrooks’s application be dismissed.
Issues
The issues for determination are:
a)The period of the de facto relationship.
b)Whether it is just and equitable for there to be an alteration of the parties’ interest to a de facto relationship in the property.
c)If findings are made that it is just and equitable for parties’ interest to be altered, then what alteration is to take place.
Evidence
In considering these issue regard has been had to:
a)The material as marked on the court file with a red tick.
b)The exhibits.
c)The transcripts.
d)The written and oral submissions.
e)Part VIIIAB Family Law Act 1975.
f)Relevant authorities.
The parties are legally represented.
The valuers were not required for cross-examination.
For Ms Allbrooks the following witness was called and cross-examined:
a)Ms Allbrooks.
For Mr Decarli the following witnesses was called and cross-examined:
a)Mr Decarli.
Ms B (Ms B), the office administration assistant was not required for cross-examination.
Findings of fact are made on the balance of probabilities having regard to the evidence and in what follows statements of fact constitute findings of fact.
Relevant history
The relevant history is as follows:
a)Ms Allbrooks is aged 50 and is a professional.
b)Mr Decarli is aged 53 and runs his own business.
c)In or around 1991 Mr Decarli established C Pty Ltd which later changed its name to D Pty Ltd in 2012 (D Pty Ltd).
d)In or around 2000 Mr Decarli purchased two real properties at E Street, Town F (Lot 1 and Lot 2).
e)In or around 2009 the parties commenced a relationship.
f)In or around 2009/2010 the parties commenced cohabitation, when Ms Allbrooks and her two children moved in with Mr Decarli.
g)At the time of cohabitation Ms Allbrooks had three children; Ms F (28), Ms G (26) and Mr H (21) with Ms G and Mr H still living with the mother.
h)At the time of cohabitation Mr Decarli had three children; Mr J (30), Mr K (27) and Mr L (24), with Mr L spending time with the father on weekends.
i)At the time of cohabitation Ms Allbrooks had assets and liabilities of little value consisting of:
i)A motor vehicle.
ii)Furniture and chattels.
iii)Debts of some $15,000.
j)At the time of cohabitation Mr Decarli had assets which in his estimation totalled $750,000 consisting of:
i)Lot 1.
ii)Lot 2.
iii)D Pty Ltd.
iv)Cattle.
v)Guns.
vi)Bikes.
vii)Quad bikes.
viii)Motor vehicles.
ix)Furniture and chattels.
x)Debts associated with the real properties and D Pty Ltd.
k)Later in 2010 Mr Decarli paid a property settlement to his former wife.
l)In 2012 Ms Allbrooks purchased in her sole name, subject to a mortgage, a property at M Street, Town N (M Street, Town N).
m)In 2015 Ms Allbrooks and her daughter started a business called “O” which ran for a few months.
n)In 2016 Ms Allbrooks worked at an employer in Town N.
o)In April 2017 the parties separated.
p)At the time of separation Ms Allbrooks had assets in her name consisting of:
i)Equity in M Street, Town N.
ii)A motor vehicle.
iii)Superannuation.
q)At the time of separation Mr Decarli had assets and liabilities in his name consisting of:
i)Lot 1.
ii)Lot 2.
iii)D Pty Ltd.
iv)Cattle.
v)Guns.
vi)Bikes.
vii)Quad bikes.
viii)Motor vehicles.
ix)Furniture and chattels.
x)Superannuation.
xi)Debts associated with the real properties and D Pty Ltd.
r)Since separation Ms Allbrooks has been in various employment, including with Employer P, as a public servant, as a professional with Employer Q, with Employer R and as a carer.
s)Since separation Mr Decarli has continued in his employment and running of D Pty Ltd.
t)In mid 2017 Ms Allbrooks purchased in her sole name subject to a mortgage a property at S Street, Town N (S Street, Town N).
u)In late 2017 Mr Decarli purchased in his sole name a property at T Street, Town U (T Street, Town U).
v)In July 2018 Ms Allbrooks commenced property proceedings seeking orders whereby Mr Decarli pay Ms Allbrooks a sum of money, Ms Allbrooks retain M Street, Town N and otherwise the parties retain the property in their possession.
w)In September 2018 Mr Decarli filed his response seeking orders that Ms Allbrooks’s application be dismissed and costs reserved.
x)On 27 September 2018 Mr Decarli’s application to have the matter summarily dismissed was dismissed by Judge Coates.
y)In late 2018 Ms Allbrooks sold S Street, Town N.
z)Between March 2019 and July 2019 Ms Allbrooks lived in a de facto relationship with Mr V in his home.
aa)In November 2019 the matter proceeded to a final hearing with the hearing spanning for several days over several months concluding with submissions in April 2020.
Before considering the law and the potential division of the de facto property pool it is necessary to determine the period of the de facto relationship.
Period of de facto relationship
The parties agree that they were in a de facto relationship, at times living together, raising children together, socialising, attending functions as a couple and taking holidays together.
What is in dispute is the period of the de facto relationship.
Where de facto property proceedings have been commenced the court has the ability pursuant to section 90RD(2)(a) Family Law Act 1975 to make a declaration pursuant to section 90RD(1)(a) as to the periods the de facto relationship was in existence.
Ms Allbrooks states that parties were together in a de facto relationship from 2009 to April 2017 with the parties separating during that time for a total of 8 months.
This equates to the parties being together for a total of 6 years 10 months.
Mr Decarli states that the parties were together in a de facto relationship from 2010 to April 2017 with the parties separating during that time for a total of 21 months.
This equates to the parties being together for a total of 5 years 4 months.
I will now determine the issue of the periods of the de facto relationship.
Commencement of relationship
Ms Allbrooks submits the de facto relationship commenced in 2009 explaining:
a)The parties started a relationship in October 2019 at which time Ms Allbrooks had a lease over a house property at Town W.
b)“We were staying at both residences. We would come backwards and forwards all the time” (cross-examination)
c)“I put the date of cohabitation at 2009 as it coincided with graduation ceremonies for…Ms F and … Mr J” ([4] Ms Allbrooks’s trial affidavit).
During cross-examination Ms Allbrooks conceded that date of cohabitation may have been “late 2009/early 2010” and when she moved in with Mr Decarli she had to break the lease on the Town W property.
Mr Decarli submits the de facto relationship commenced in 2010 when Ms Allbrooks and her children moved in with him ([6] trial affidavit).
Mr Decarli otherwise provides no explanation as to why this was the date of commencement.
Conclusion
I find based on the limited evidence before the court and on the balance of probabilities that the commencement date of the de facto relationship was 2010.
I therefore declare that the commencement date of the de facto relationship was 2010.
End of de facto relationship
The parties agree that the relationship ended in April 2017 ([15] Ms Allbrooks’s trial affidavit) and ([6] Mr Decarli’s trial affidavit).
Conclusion
I find therefore that the period of time between the commencement (2010) and the conclusion of the de facto relationship (April 2017) is 7 years and 4 months.
However there were periods of separation during the relationship, although the number and length of separations is in dispute.
Periods of separation during de facto relationship
Mr Decarli submits that there were at least four separations totalling 21 months during the de facto relationship when the parties were separated such as between:
a)2011 to January 2012 (2011 separation).
b)2013 to July 2013 (2013 separation).
c)2014 to December 2014 (2014 separation).
d)2015 to October 2015 (2015 separation).
Ms Allbrooks agrees that the parties separated maybe up to three occasions and that the total time apart was 8 months.
I will now address each period of separation.
2011 separation
As to the 2011 separation Mr Decarli states:
a)Ms Allbrooks left her personal effects and furniture at Mr Decarli’s residence and entered into a lease for a residential property in Town N as Ms F could not get the property in her name because she had been blacklisted ([11] and [12] Mr Decarli’s trial affidavit).
b)During this time Ms Allbrooks was employed part-time at D Pty Ltd so that the parties could continue to see each other at work ([13] Mr Decarli’s trial affidavit).
c)During this time Ms Allbrooks spent every weekend with Mr Decarli at his residence and assisted him with the cattle ([14] and [15] Mr Decarli’s trial affidavit).
d)During this time the parties would every 6 weeks go away for the weekend together ([15] Mr Decarli’s trial affidavit).
As to the 2011 separation Ms Allbrooks denies that the parties were separated providing social media posts that during this time the parties attended birthday parties, football games, social gatherings and went on holidays ([65] Ms Allbrooks’s affidavit).
Conclusion
It is well established by case law that living together is not a required prerequisite in order to establish the existence of a de facto relationship.
I find based on the evidence that whilst the parties may have been physically apart during the week that a de facto relationship continued during this time.
As such I do not find that this period qualifies as a period of separation.
2103 separation
As to the 2013 separation Mr Decarli states:
a)Ms Allbrooks moved into M Street, Town N ([22] Mr Decarli’s trial affidavit).
b)The parties maintained an intimate relationship with Ms Allbrooks returning to Mr Decarli’s property on weekends ([22] Mr Decarli’s trial affidavit).
c)In July 2013 Ms Allbrooks returned to live fulltime at Mr Decarli’s property).
As to the 2013 separation:
a)Ms Allbrooks says that the parties did not separate.
b)During that time Ms Allbrooks assisted her daughter with renting a house at Town N and for the first month was staying at the rental house carrying out renovations on M Street, Town N, returning to spend time with Mr Decarli on weekends ([52] Ms Allbrooks’s trial affidavit).
c)After four weeks Ms Allbrooks returned to live with Mr Decarli ([52] Ms Allbrooks’s trial affidavit).
d)In cross-examination Ms Allbrooks admitted that at that time she had moved out most of her furniture from Mr Decarli’s residence with the help of her family.
Conclusion
I find based on the evidence that the de facto relationship continued during this time with the parties remaining in a committed relationship.
2014 separation
As to the 2014 separation Mr Decarli states:
a)That in October 2014 Ms Allbrooks moved out for 8 to 12 weeks to live with her parents as the parties had been arguing because the business was struggling to provide an income ([26] Mr Decarli’s trial affidavit).
b)During this time both parties obtained employment elsewhere ([27] Mr Decarli’s trial affidavit).
c)In December 2014 the parties decided to give the relationship “another go” ([28] Mr Decarli’s trial affidavit).
As to the 2014 separation this was not addressed by Ms Allbrooks in her affidavit.
In cross-examination Ms Allbrooks admitted that at that time she had moved out to stay with her parents for two or a “few” weeks during which time Ms Allbrooks did not see Mr Decarli during weekends.
Ms Allbrooks’s legal representatives in submissions made to the court in September 2018 said that the parties during this time had separated for 2 months.
Conclusion
I find based on the limited evidence before the court that the de facto relationship ceased during this time period for 2 months.
2015 separation
As to the 2015 separation Ms Allbrooks agreed that the parties had separated from April 2015 to October 2015 ([56] to [58] Ms Allbrooks’s trial affidavit).
Conclusion
I find based on the evidence that the de facto relationship ceased during this time period of 7 months.
Overall conclusion
I find that during the 7 year 4 month relationship the parties separated on two occasions totalling 9 months.
I further find that the periods of the de facto relationship were:
a)2010 to October 2014.
b)2014 to April 2015.
c)2015 to April 2017.
Therefore I find that the length of the de facto relationship was 6 years 7 months.
Now that it has been established that the parties were in a de facto relationship for 6 years 7 months I now turn to the law.
The law
The court has the power after the breakdown of a de facto relationship, pursuant to section 90SM(1)(a) Family Law Act 1975, to alter the interests of the parties to the de facto relationship in the property.
In determining how to alter the interests, consideration is to be given to contributions of the parties as set out in section 90SM(4) and the relevant factors contained in section 90SF(3).
However the court should not entertain making an order altering interest unless under section 90SM(3) the court is first satisfied that in “all the circumstances” that it is “just and equitable” to make such an order.
The High Court in Stanford v Stanford (2012) 293 ALR 70 at [36] stated that the “expression ‘just and equitable’ is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds.”
Stanford recognises that in the majority of matters the circumstances will immediately lead the court to the conclusion that it is just and equitable to proceed to a property division, stating at [42]:-
“In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying”
But if the court is faced with the situation, as in this matter, where it is raised by one party that a property division would not be just and equitable, Stanford states at [40]
“Whether making a property settlement order is ‘just and equitable’ is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised ‘in accordance with legal principles, including the principles which the Act itself lays down’. To conclude that making an order is ‘just and equitable’ only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.”
The Full Court in Bevan & Bevan [2013] Fam CAFC 116 at [84] commented that when determining whether it was just and equitable
“It would be a fundamental misunderstanding to read Stanford as suggesting that the matters referred to in s 79(4) should be ignored in coming to that decision. Indeed, such a reading would ignore the plain words of s 79(4), which make clear that in considering ‘what order (if any)’ to make, the court must take into account the matters referred to in that subsection”.
As to whether it is a requirement that section 79(4) (or as in this case section 90SM(4)) must be taken into account in determining whether it is just and equitable to make an order altering property interests was discussed at length by the Full Court in Chapman & Chapman [2014] Fam CACF 91.
Thackery J in Fielding and Nichol [2014] FCWA 77 at [51] concluded after a thorough analysis of Chapman that a judge may not be obliged to take into account the matters in section 79(4) but is at “mere liberty” to do so in determining whether it is just and equitable to make an orders altering property interests.
In determining the issue of “just and equitable” in Babray & Babray [2019] FCCA 3514 Judge A Kelly after a close analysis of the authorities stated at [99]:
“The criterion ‘just and equitable’ is a criterion that does not admit of exhaustive definition… confirming that the power conferred by s 79 was not to be exercised by the application of fixed rules, the plurality identified three propositions that it regarded as being of fundamental importance to the determination whether it was just and equitable for the court to make an order adjusting property rights”
In summary the three propositions identified by Judge A Kelly were:
a)Firstly, the court must identify the parties existing interests in the property (Babray at [100]).
b)Secondly, the broad discretion conferred by s 79 is “not to be exercised upon some idiosyncrasy view of the instant claim”. An assumption is not to be made that “the parties rights to or interests in property are or should be different from those that then exist” and “the bare fact of separation does not permit a court to disregard the parties rights and interests in property or to make whatever order may seem to be fair or just” (Babray at [101]).
c)Thirdly “the analysis of whether it is just and equitable to make an order adjusting property interests does not begin from an assumption that either party ‘has the right to have the property of the parties divided’” and “a principled basis must be shown to exist as to why it is just and equitable to make an order that would alter the parties existing interests in their property” ([Babray at [103]).
The Full Court in Bevan at [85] noted
“There will be a range of cases, of which arguably the present is a good example, where determining whether it is just and equitable to make any order altering property interests will not be so clear cut and will therefore require not only separate but very careful deliberation”.
Adopting the approaches as set out by the authorities, I will now consider whether it is just and equitable to alter the parties’ interests in the de facto property.
Identifying the parties’ interest in the property
When the parties first commenced cohabitation:
a)Ms Allbrooks had no assets of value as her debts equated to the value of the assets held.
b)Mr Decarli had a large asset pool consisting of real properties, a business, bikes, motor vehicles, cattle and chattels.
By the conclusion of the relationship Ms Allbrooks had acquired property in her name whilst Mr Decarli had retained the property which he had brought into the relationship.
After separation the parties had acquired additional real property by Ms Allbrooks purchasing S Street, Town N and Mr Decarli purchasing T Street, Town U.
Leading up to the final hearing Ms Allbrooks had the benefit of:
a)Over $50,000 from refinancing M Street, Town N, some of which was utilised to purchase S Street, Town N.
b)Over $50,000 from the sale of S Street, Town N.
As at the date of the final hearing the agreed de facto property pool consisted of the following (not taking into account the add backs):
ASSETS
Ms Allbrooks
Mr Decarli
Lot 1
$240,000
Lot 2
$790,000
T Street, Town U
$410,000
M Street, Town N
$280,000
D Pty Ltd
$480,450
Cattle
$39,280
Motor Vehicle 1
$20,000
Bikes/Quad bikes
$3,000
Gun collection
$3,000
Bank accounts
$2,709
Bank accounts
$4,471
Super Fund X
$41,822
Super Fund Y
$77,369
TOTAL ASSETS
$344,531
$2,044,570
LIABILITIES
Ms Allbrooks
Mr Decarli
Mortgages
$571,135
Mortgage
$191,745
Bank Z visa card
$6,513
MasterCard
$3,963
Personal loan
$5,500
TOTAL LIABILITIES
$207,721
$571,135
NET ASSETS
$136,810
$1,473,435
The total of the de facto property pool is $1,610,245.
The assets and liabilities currently held by Ms Allbrooks equates to approximately 91.5% of the asset pool.
The assets and liabilities currently held by Mr Decarli equates to approximately 8.5% of the asset pool.
A separate but very careful deliberation of this matter
Ms Allbrooks submits that it is just and equitable to alter the parties interests because during the relationship:
a)The parties applied their time and energy to joint enterprises that they carried on ([18] Ms Allbrooks’s trial affidavit).
b)The parties together “grew the business activities” ([23] Ms Allbrooks’s trial affidavit).
c)Ms Allbrooks “made substantial and significant financial and non-financial contributions to the acquisition and preservation of the assets of the relationship” ([14] Ms Allbrooks’s trial affidavit).
Mr Decarli disagrees, stating that whilst in a de facto relationship, the parties operated their financial affairs separately.
In conducting a separate but very careful deliberation of this matter, I find that there are several factors that require findings and that these findings will assist in determining whether it is just and equitable to make an order adjusting property interests.
I will now address each factor.
Ms Allbrooks’s involvement in D Pty Ltd
By 2008/2009 when the parties first met, Mr Decarli had been the owner and sole director of D Pty Ltd for a number of years.
As to the nature of the business Ms Allbrooks initially described D Pty Ltd as making “farm materials” ([19] Ms Allbrooks’s trial affidavit) although it emerged during cross-examination that D Pty Ltd had for many years been involved in numerous major developments prior to Ms Allbrooks’s employment, such developments having been documented in Mr Decarli’s trial affidavit ([108] to [112]).
Ms Allbrooks commenced her employment working part-time for D Pty Ltd prior to her relationship with Mr Decarli.
By mid-2009 Ms Allbrooks, although not technically qualified at the time, was employed by D Pty Ltd as an administration assistant and bookkeeper working from an office set up at her Town W residence ([20] Ms Allbrooks’s trial affidavit), with this role continuing once the relationship commenced.
Ms Allbrooks maintains that during the relationship, her involvement in D Pty Ltd went beyond that of administration assistant and bookkeeper As well as beyond her pay grade and therefore her contributions to D Pty Ltd must be recognised.
Ms Allbrooks states that she:
a)Modernised the work practices in D Pty Ltd by emailing quotes and using spreadsheets to breakdown quotes ([23] Ms Allbrooks’s trial affidavit).
b)Worked with Mr Decarli discussing projects, putting together tender documents, working on sites and acting as a runner to collect materials ([23] to [26] Ms Allbrooks’s trial affidavit).
c)And Mr Decarli, as a “team”, discussed and made decisions as to the purchase of plant and equipment, attending upon accountants and financial advisors ([29] to [33] Ms Allbrooks’s trial affidavit).
d)Worked as a safety officer responsible for environmental and quality control on sites and managed logistics and subcontractors ([34] Ms Allbrooks’s trial affidavit).
e)As a consequence of her working with Mr Decarli, increased D Pty Ltd’s turnover extensively in the first couple of years in the relationship ([27] Ms Allbrooks’s trial affidavit).
f)By receiving a reduced salary where she worked more than for what she was getting paid, then this was a contribution to D Pty Ltd (cross-examination).
Mr Decarli disputes Ms Allbrooks’s claims stating:
a)“Any involvement of” Ms Allbrooks “in the company was limited to general bookkeeping and administrative work for which she was renumerated as an employee of the business” ([56] Mr Decarli’s trial affidavit).
b)Ms Allbrooks “had no say in D Pty Ltd’s day to day running, purchases, machinery or employees” ([56] Mr Decarli’s trial affidavit).
c)Ms Allbrooks accompanied him on job sites on or about five occasions but did not act as a safety officer or environmental and quality control officer nor did she manage logistics or subcontractors as she did not have the qualifications or industry experience to enable her to undertake that work ([120] Mr Decarli’s trial affidavit).
d)Any task undertaken by Ms Allbrooks on site was at the discretion of Mr Decarli and formed part of her administrative role and at no time was Ms Allbrooks acting as a project manager or assistant project manager on site ([122] Mr Decarli’s trial affidavit).
Ms Allbrooks was employed by D Pty Ltd for the whole of the relationship except for a three month period between July and October 2015.
Ms Allbrooks’s employment ceased upon separation.
Conclusion
Firstly, I find that Ms Allbrooks’s extent of her involvement with D Pty Ltd was in her role as an employee only.
I base this finding on the following:
a)At the time of her employment in 2009 Ms Allbrooks had limited job skills and was not a qualified bookkeeper.
b)Although Ms Allbrooks subsequently undertook TAFE studies in 2012, the subjects undertaken substantially reflect her duties as an administrator and bookkeeper.
c)The quality of her administration skills and bookkeeping are questionable given the evidence provided by Ms B, who took over Ms Allbrooks’s role in D Pty Ltd where Ms B:
i)Sets out in detail specific errors that she has encountered since taking over as office administrator assistant from Ms Allbrooks ([8] Ms B’s affidavit).
ii)States “it became apparent to me within the first week of my employment at D Pty Ltd that there were significant deficiencies in the office systems and that the office was in a state of disarray” ([7] Ms B’s affidavit).
iii)States “I spent most of the first two months of my employment attending to outstanding compliance obligations, filing, archiving material, reorganising and generally establishing systems and processes to enable the office to operate in an efficient manner” ([7] Ms B’s affidavit).
d)Ms Allbrooks was well remunerated in her role as administration assistant and bookkeeper as in addition to her $40,000 per annum and superannuation, Ms Allbrooks received:
i)In respect to her motor vehicle; fuel, servicing and tyres.
ii)Mobile phone.
iii)Internet.
iv)Bonuses.
v)Contributions to overseas travel for conferences.
e)When Ms Allbrooks was required to travel and work onsite, Ms Allbrooks received bonuses and living away from home expenses.
f)When working in other employment, D Pty Ltd continued to pay Ms Allbrooks a wage.
g)Although Ms Allbrooks requested to become a shareholder in D Pty Ltd, this never eventuated, with Mr Decarli not agreeing to her request.
Secondly I find that Ms Allbrooks in her employment did not, beyond her role as an employee, make any additional contributions to D Pty Ltd.
I make this finding based on the following:
a)Ms Allbrooks admitted in cross-examination that her updating systems and processes fell within the normal duties of an administrative assistant and bookkeeper.
b)Although D Pty Ltd picked up large contracts during the relationship there was no evidence to support that this occurred due to any contributions made by Ms Allbrooks.
c)The evidence supports that during the relationship D Pty Ltd at times was a struggling business such as:
i)In early 2013 when work was “flat” at D Pty Ltd when Ms Allbrooks worked during a ten week period at Employer AA ([48] Ms Allbrooks’s trial affidavit).
ii)In late 2013 when work was “slow” ([54] Ms Allbrooks’s trial affidavit).
iii)In late October 2014 there was very little work (cross-examination).
iv)In April 2015 work was “slow” ([56] Ms Allbrooks’s trial affidavit).
d)When asked during cross-examination whether she contributed to the purchase of plant and equipment for D Pty Ltd, Ms Allbrooks responded “no”.
Ms Allbrooks’s involvement in cattle
During the relationship Mr Decarli kept cattle on his properties.
Ms Allbrooks deposes that she and Mr Decarli “worked together on his properties breeding cattle… this was always a task that we enjoyed together, working mostly weekends” which included mustering dipping and attending to the cattle ([38] and [39] Ms Allbrooks’s trial affidavit).
Mr Decarli agrees that Ms Allbrooks assisted him on weekends with the cattle although it was not every weekend ([135] Mr Decarli’s trial affidavit) and that Ms Allbrooks made no financial contribution to the cattle ([97] Mr Decarli’s trial affidavit).
Conclusion
I find based on the evidence that:
a)Ms Allbrooks did not purchase any cattle or financially contribute to the upkeep of the cattle.
b)Ms Allbrooks from time to time assisted Mr Decarli with the cattle on weekends.
Ms Allbrooks’s financial contributions to Mr Decarli’s real properties during relationship
At the commencement of the relationship Mr Decarli owned, either personally or through D Pty Ltd, Lot 1 and Lot 2, with Lot 1 being the former de facto home.
Ms Allbrooks deposes that in 2015 of “we” having paid out the debt over Lot 103 ([55] Ms Allbrooks’s trial affidavit) but admitted in cross-examination that Mr Decarli and/or D Pty Ltd met all the outgoings and expenses on Lot 1 and Lot 2.
When further asked whether she had contributed “any funds to the payments of loans” Ms Allbrooks answered “no”.
Conclusion
I find based on the evidence that Ms Allbrooks made no financial contributions to Lot 1 and Lot 2, the real properties owned by Mr Decarli.
Ms Allbrooks’s non-financial contributions to Mr Decarli’s real properties during relationship
When they first moved in to Lot 2, Ms Allbrooks described the property as “an old, barely liveable, farmhouse” ([40] Ms Allbrooks’s trial affidavit)
Ms Allbrooks deposes to carrying out “significant works” together with Mr Decarli and her children “to complete the renovations and general improvement” on Lot 2 ([41] Ms Allbrooks’s trial affidavit).
Mr Decarli states:
a)“We conducted renovations to this property. The renovations included putting in a new kitchen, new bathroom cupboards, revamping the laundry and back toilet and painting the inside of the house. I paid for the costs of the renovation work which I estimate came to approximately E$10,000” ([72] Mr Decarli’s trial affidavit).
b)Ms Allbrooks “did not contribute anything towards the cost of these renovations” ([72] Mr Decarli’s trial affidavit).
c)Ms Allbrooks “organised a friend of mine… a licensed builder to provide us with a quote for renovating the bathroom and laundry and back toilet. I paid him for his services” ([73] Mr Decarli’s affidavit).
d)“In or about 2010” Ms Allbrooks “and her children assisted in completing some of the internal painting, however a painting contractor was engaged in or about 2016 to complete the whole house. I paid the contractor for his work. Again” Ms Allbrooks “did not contribute to this cost” ([74] Mr Decarli’s trial affidavit).
During cross-examination Ms Allbrooks agreed that:
a)Mr Decarli paid for all of the renovation work with no financial contribution made by Ms Allbrooks.
b)Mr Decarli paid professionals to renovate the kitchen, bathroom, laundry and back toilet, to paint the house, to sand the floor and lay carpet and to fix the roof.
During cross-examination Ms Allbrooks clarified the extent of her involvement in the renovations, maintaining that these contributions were significant:
a)Assisted in painting.
b)Held sheets whilst Mr Decarli put up internal sheeting.
c)Assisted in installing cable tie wire on the decking.
d)Assisted in sanding, painting and hammering in the ramps.
e)Assisted in scrubbing down the floor and laying carpet in the second bedroom.
Conclusion
I find based on the evidence that:
a)Mr Decarli financially funded the renovations.
b)Ms Allbrooks did not financially contribute to the renovations.
c)The renovations were done by professionals.
d)Ms Allbrooks organised for some quotes.
e)Ms Allbrooks provided assistance to Mr Decarli in respect to the renovations.
f)The assistance did not amount to “significant works” by Ms Allbrooks towards the renovations.
g)There is no evidence to support that the assistance provided by Ms Allbrooks contributed to any improvement in value of Lot 2.
Acquisition of property during the relationship
When Ms Allbrooks was asked in cross-examination “you did not acquire any property jointly during the relationship did you” the answer was “no”.
The only property acquired during the relationship was M Street, Town N, which was bought in Ms Allbrooks’s name.
The history of the acquisition, preservation, maintenance and improvement of M Street, Town N is as follows:
a)In early 2013 Ms Allbrooks, purchased in her sole name, subject to a mortgage, a house property at M Street, Town N.
b)To pay for the deposit, Ms Allbrooks used monies she received from working in Employer AA and D Pty Ltd including a $5,000 bonus from D Pty Ltd together with a “gift” of $10,000 that she received from Mr Decarli.
c)When discussing the purchase with Mr Decarli Ms Allbrooks said:
i)That she told Mr Decarli words to the effect “I just really want to buy this on my own – I feel I need to have something that is mine” ([49] Ms Allbrooks’s trial affidavit).
ii)“We had a discussion, and we agreed it would be nice for me to have something in my name because everything was in D Pty Ltd’s name, apart from the one property that was in Mr BB’s name, so he had a property and I had a property” (cross-examination).
d)Ms Allbrooks made all mortgage repayments and paid all outgoings expenses associated with M Street, Town N.
e)Any rental paid on M Street, Town N was utilised exclusively by Ms Allbrooks.
f)Ms Allbrooks did her own renovation on M Street, Town N with the only assistance from Mr Decarli being the use of a bobcat and having access to the D Pty Ltd trade account to purchase paints.
g)Mr Decarli never had a key for M Street, Town N.
h)After separation in mid 2017 after Ms Allbrooks refinanced the mortgage on M Street, Town N with a $200,000 loan, paying out the mortgage of $148,658 and utilising the remaining monies ($54,068) for her own use ([62] Ms Allbrooks’s trial affidavit).
Conclusion
I find based on the evidence that:
a)The decision to purchase M Street, Town N was made by Ms Allbrooks.
b)In making the gift to Ms Allbrooks of $10,000 to help purchase M Street, Town N, Mr Decarli held no expectation of acquiring any interest in M Street, Town N.
c)Mr Decarli has had no involvement in, nor has he been invited by Ms Allbrooks to have any involvement in M Street, Town N and did not have a key for the property.
d)Since acquisition Ms Allbrooks has been solely responsible for and made all the decisions for the preservation, maintenance and improvements on M Street, Town N, including physically renovating the property.
e)Since acquisition Ms Allbrooks has been solely responsible for the mortgage, outgoing and all costs associated with M Street, Town N.
f)Ms Allbrooks is the only person who has derived any benefits from M Street, Town N, including rental, monies received from refinancing and equity in the property.
I find that since acquisition Ms Allbrooks has been the only person involved in the acquisition preservation, maintenance and improvement of M Street, Town N.
Sharing of day to day living expenses and household chores
Ms Allbrooks did not pay rent or board for either herself or the children when living with Mr Decarli at Lot 2.
Ms Allbrooks did not contribute to the bills on Lot 2 such as electricity or gas ([129] Mr Decarli’s affidavit).
Mr Decarli says he purchased the bulk of the groceries and household supplies with Ms Allbrooks occasionally purchasing items such as bread and milk ([131] Mr Decarli’s affidavit).
Ms Allbrooks agreed in cross-examination that Mr Decarli paid for the majority of the food and groceries although they both purchased alcohol.
Ms Allbrooks deposed “I used” Mr Decarli’s “Visa Card for online purchases - mostly business related items. I was also able to access goods and services via open accounts at various suppliers … we did not need a lot of cash or joint accounts as many of our day-to-day costs were placed on these various accounts and subsequently paid from the D Pty Ltd operating account” ([44] Ms Allbrooks’s trial affidavit).
As to household duties Mr Decarli states that he did the majority of the cooking and Ms Allbrooks would do the cleaning with the parties sharing the washing and gardening ([132] Mr Decarli’s affidavit).
In cross-examination Ms Allbrooks agreed that they shared the gardening and they both cooked and cleaned the house.
Conclusion
I find based on the evidence that:
a)Mr Decarli was solely responsible for all costs associated with keeping a roof over their heads during the relationship.
b)Mr Decarli was primarily responsible for day to day living expenses.
c)The parties shared in household duties.
Separation of finances and financial independence
The parties maintained separate bank accounts during the relationship.
In cross-examination Ms Allbrooks confirmed that neither party had access to the other party’s bank accounts.
Ms Allbrooks states:
a)There was joint decision making between the parties.
b)That “while we did not have joint bank accounts, we did share our monies without any form of accounting between us” ([44] Ms Allbrooks’s trial affidavit).
However when Ms Allbrooks was asked in cross-examination “you never agreed to make joint contributions to things” the answer was “it never seemed to happen, no”.
Mr Decarli states:
a)Joint decision making did not occur ([56] Mr Decarli’s trial affidavit).
b)The parties kept their income and spending separate to each other ([128] Mr Decarli’s trial affidavit).
c)Ms Allbrooks’s income was entirely at her own disposal and was separate and distinct from Mr Decarli’s finances ([129] Mr Decarli’s trial affidavit).
d)Mr Decarli would not ask nor was he told what Ms Allbrooks spent her income on ([129] Mr Decarli’s trial affidavit).
e)Ms Allbrooks “did not wish to commit to sharing our finances or being transparent about what she was spending her money on” ([57] Mr Decarli’s trial affidavit).
The evidence supports that during her employment with D Pty Ltd and Employer AA, Ms Allbrooks used her income as she chose including:
a)To acquire savings to purchase M Street, Town N.
b)To put towards holidays.
c)To pay for bills for her children including rent and registration.
d)To purchase horses.
Conclusion
I find based on the evidence:
a)There was no joint decision making as to finances.
b)The parties kept their finances completely separate.
c)Neither party had full knowledge of the other party’s financial situation.
d)The parties had sole use of the income they received.
Planning for the future
Ms Allbrooks states that the parties jointly attended financial planning, although this is not supported by the evidence.
The parties each rolled their superannuation over in 2016 to Super Fund X and Y.
At the time Mr Decarli nominated Ms Allbrooks as the beneficiary, but that was later changed to nominate his children after the parties separated.
There is no evidence that Ms Allbrooks nominated Mr Decarli as beneficiary on her superannuation policy.
Mr Decarli during the relationship made out a will to include Ms Allbrooks as a beneficiary but changed his will to remove Ms Allbrooks after separation.
There is no evidence that Ms Allbrooks ever made a will during the relationship naming Mr Decarli as a beneficiary.
Conclusion
I find based on the evidence that:
a)Mr Decarli was more committed to making plans for the future than Ms Allbrooks.
b)There was no joint commitment to planning for the future.
Property and debts acquired post separation
After separation Ms Allbrooks:
a)Used $24,000 from refinanced monies for M Street, Town N as a deposit to purchase S Street, Town N in her sole name subject to a mortgage ([53] Ms Allbrooks’s affidavit).
b)Had the sole use of over $50,000 when the S Street, Town N property sold ([73] Ms Allbrooks’s affidavit).
c)Acquired credit card debt.
After separation Ms Allbrooks acquired T Street, Town U for $395,000.
Conclusion
I find based on the evidence that the property acquired post separation was not contributed to by the other party.
Overall conclusion
I find, having considered the evidence and taking into account the above findings, that in this matter it would not be just and equitable to alter the interests of the parties to the de facto relationship in the property.
I make this finding based on the following:
a)The parties did not intermingle their finances.
b)The parties did not have a joint bank account.
c)The parties kept their finances separate, with each party using their income for whatever purposes they chose with neither party having access to or being fully aware of the other party’s financial situation.
d)The parties did not own or acquire jointly owned property.
e)The parties did not financially contribute to the acquisition, maintenance, preservation or improvement of real property owned by the other party.
f)The non-financial contributions made by Ms Allbrooks to Lot 2 were not significant and do not give rise to an interest in the property.
g)The non-financial contributions made by Ms Allbrooks to the cattle were not significant and do not give rise to an interest in the cattle.
h)Ms Allbrooks did not make any contributions to D Pty Ltd other than the normal contributions made by an employee to her employer.
i)The parties did not engage in joint decision making about their respective financial situations during the relationship.
j)The parties did not engage in joint decision making about their future financial situations during the relationship.
k)The parties had no future plans.
I therefore order that Ms Allbrooks’s application for a de facto property division to be dismissed.
Assessment of Ms Allbrooks’s share if it had been just and equitable to alter parties interests
The Full Court in Chancellor & McCoy [2016] Fam CACF 256 stated at [68]
“Having determined that it was not just and equitable to interfere with existing property rights, her Honour did not need to make an assessment of what the appellant’s entitlements might have been had she decided it was just and equitable to make some form of property order. Our law does not provide for a system of community of property arising from marriage (or from a de facto marriage), and the High Court has emphasised in Stanford that it is simply not open to a trial judge to interfere with existing property rights of citizens merely by reference to the provisions of the Act”
In light of this authority I therefore do not intend to engage in the exercise of determining what Ms Allbrooks may have received if an alteration of interests had occurred.
Costs
During the course of the proceedings costs have been sought and costs have been reserved.
If parties wish to make a costs application then the appropriate application can be filed.
I certify that the preceding one hundred and forty-one (141) paragraphs are a true copy of the reasons for judgment of Judge L. Turner
Date: 17 September 2020
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