Allenby and Kimble
[2014] FamCA 110
FAMILY COURT OF AUSTRALIA
| ALLENBY & KIMBLE | [2014] FamCA 110 |
| FAMILY LAW – PROPERTY SETTLEMENT – De Facto Relationship – Where the de facto husband made the greater financial contribution – Non-financial contribution – Where the de facto wife made the greater non-financial contribution – Whether pre-co-habitation non-financial contributions to the preservation of property should be taken into account. FAMILY LAW – PRACTICE AND PROCEDURE – Issue Estoppel – Whether an interlocutory finding had been made in relation to the de facto wife’s inheritance. |
| Family Law Act 1975 (Cth) ss 4AA(2), 90SF(3), 90SM |
| Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 Bevan & Bevan [2013] FamCAFC 116 Blair & Ors v Curran & Ors (1939) 62 CLR 464 Stanford & Stanford (2012) 247 CLR 108 |
| APPLICANT: | Ms Allenby |
| RESPONDENT: | Mr Kimble |
| FILE NUMBER: | BRC | 1989 | of | 2011 |
| DATE DELIVERED: | 7 March 2014 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Forrest J |
| HEARING DATE: | 11 April 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Burridge of Counsel |
| SOLICITOR FOR THE APPLICANT: | Swanston & Associates |
| COUNSEL FOR THE RESPONDENT: | Mr Galloway of Counsel |
| SOLICITOR FOR THE RESPONDENT: | Cartledge Law |
Orders
That by way of property adjustment pursuant to s 90SM of the Family Law Act 1975 the Respondent pay the Applicant the sum of one hundred thousand dollars ($100,000) within two (2) calendar months of the date of these Orders.
That each of the Applicant and the Respondent otherwise retain as his and her own property absolutely all interests that each has in property and each shall also retain as his and her own any interest each has in any superannuation fund.
That each of the Applicant and the Respondent indemnifies the other and shall keep the other indemnified against any and all liability for debts in his or her own name.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Allenby & Kimble has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT |
FILE NUMBER: BRC 1989 of 2011
| Ms Allenby |
Applicant
And
| Mr Kimble |
Respondent
REASONS FOR JUDGMENT
On 2 August 2012, Murphy J of this Court declared that:
(a)A de facto relationship existed between the parties in this case, Ms Allenby and Mr Kimble; and
(b)The de facto relationship lasted for at least two years; and
(c)The de facto relationship ended after 1 March 2009.
On 11 April, 2013, I presided over a one day trial of Ms Allenby’s application pursuant to s 90SM of the Family Law Act 1975 (Cth) (“FLA”) for property adjustment orders as between her and Mr Kimble.
That section of the Act empowers the Court, after the breakdown of a de facto relationship, to make such order as it considers appropriate in proceedings with respect to the property of the parties to the de facto relationship or either of them, altering the interests of the parties to the relationship in the property. Section 90SM(3) provides that the Court must not make an order under the section unless it is satisfied that it is just and equitable to make the order in all the circumstances.
Clearly, in my opinion at least, that statutory provision applies in property adjustment proceedings between parties to a de facto relationship in the same way as its counterpart in s 79(2) does in property adjustment proceedings between parties to a marriage.[1]
[1] Stanford & Stanford (2012) 247 CLR 108.
Consideration of whether it is just and equitable to make a property adjustment order must begin by identifying, “according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property”.[2] Legal principle is to be followed and applied when exercising the discretion conferred by s 90SM,[3] and care must be taken not to conflate the s 90SM(3) question of whether it is just and equitable to make property adjustment orders at all with the separate s 90SM(4) question as to the particular orders to be made if any are to be made.[4]
[2] Stanford and Stanford, [37].
[3] Ibid at [38]-[39].
[4] Ibid at [40].
Once it is determined that it is just and equitable to make property adjustment orders between the parties at all, s 90SM(4) sets out the matters that must be taken into account in determining the appropriate orders. There are seven matters that must be taken into account in “considering what order (if any) should be made under [the section]”. These include the contributions made by the parties (in their various forms); the effect of any order on either party's earning capacity; consideration of the matters to be taken into account under s 90SF(3) of the FLA, so far as they are relevant; any orders already made under the FLA; and any child support that has been provided, is to be provided or might be provided in the future for a child of the de facto relationship.
What are the existing property interests of the parties in this case?
At the end of the trial, a schedule of the parties’ property interests, liabilities and superannuation interests was handed to the Court. There was no dispute about much of it. The parties agreed that Mr Kimble had the following interests in property and that those interests had the values set out next to them in the table:
Property
Value
Real property at Property A
$720,000
Real property at Property B
$190,000
Real property at Property C
$290,000
Real property at Property E
$190,000
A half share in real property at Property F
$275,000
Toyota motor vehicle
$8,500
Ford motor vehicle
$12,350
Boat
$400
Motorcycle
$200
Total Value
$1,686,450
The parties agreed that Ms Allenby had the following interests in property with the values set out next to them in the table:
A half share in real property at Property G
$575,000
Holden motor car
$4,000
Superannuation interest in Sunsuper
$32,700
A half share in a mortgage debt secured over Property G
($445,700)
Total Value
$166,000
In the schedule that was handed up to the Court at the end of the trial, it was recorded that the parties agreed that Mr Kimble had the following interests in property and superannuation but that they were unable to agree on the value to be attributed to them. The value actually asserted by each party in that schedule is listed in the table next to the item.
Item
Value asserted by Mr Kimble
Value asserted by Ms Allenby
Camprite Trailer
$12,000
$25,600
2500 CMC Market shares
$3,119
$4,983
H Super Fund
$66,306
$77,253
Mr Kimble also asserted that he had a bank overdraft liability of $15,722. It appeared to be agreed, at least, that he did. What was not agreed was how it was to be treated in these proceedings.
In respect of the items that were not agreed, there was very limited evidence adduced by either party to assist the Court to be able to make relevant findings. In his Financial Statement filed 1 November 2012, Mr Kimble did not even list the camping trailer as an asset of his. He said nothing about it in his affidavit evidence either. Ms Allenby did not refer to it at all in her affidavit evidence either and neither party was asked any questions about it in oral evidence. The first the Court became aware of it was when it was simply included in the schedule that was handed to the Court at the trial.
As to the values ascribed to it by each of the parties, there is just no evidence to assist at all. Counsel for Mr Kimble submitted that as the inclusion of the trailer in the schedule was an admission against interest, the value that Mr Kimble ascribed should be accepted. Counsel for Ms Allenby submitted that the trailer should be ordered to be sold because it was Mr Kimble who failed in his duty to disclose the trailer as his property and to have it expertly valued.
For present purposes I consider it is sufficient to identify it as a piece of property owned by Mr Kimble at the time of the trial with a value in the range of $12,000 to $25,600.
It was agreed that Mr Kimble had an interest in 2500 shares. They were referred to as CMC Market shares. For Mr Kimble, it was said that the shares were worth $3,119. For Ms Allenby, it was said that they were worth $4,983. Neither party said anything about these shares in affidavit evidence. In Mr Kimble’s sworn Financial Statement filed on 1 November 2012, shares held with CMC Markets Stockbroking were referred to. Mr Kimble listed them as having a value at that time as $3,799.
In oral submissions, I was told by counsel for Mr Kimble that the market value of the shares on the day of the trial was $3,119. I was told by counsel for Ms Allenby that the value of $4,983 was the value attributed by Mr Kimble in his Financial Statement. In fact, as I have said, in the only Financial Statement that was read by Mr Kimble as evidence he relied upon at the trial, namely the Financial Statement he filed on 1 November 2012, the market value of the shares was listed as $3,799.
As I said at the trial when these submissions were being made, it is extremely regrettable that parties, solicitors and experienced counsel present an issue such as this to the Court in circumstances such as these. When shares are listed on the stock market, agreeing on their value as at any particular date, be it the start date of the trial or some other date, is not difficult. Putting evidence of their value before the Court in default of agreement is not difficult. It is a waste of the parties’ money and the Court’s time when such a relatively easy course is not adopted, contrary submissions are made and the Court is left to have to determine the matter without proper assistance by the parties or their lawyers. In the circumstances of this case, I consider I can only ascribe to the shares the value that Mr Kimble ascribed to them in his Financial Statement, there being no other evidence of value. That value he ascribed was $3,799. That is the value I will consider the shares have in this matter.
The parties listed Mr Kimble’s interest in H Super Fund (his SMSF) and gave it the values of $66,306 and $77,253 respectively. There was evidence about his interest in that fund. That evidence established that Mr Kimble listed the value of his interest in the fund at $77,253 in June 2011 and then at $36,352 in his Financial Statement filed 1 November 2012.
In his affidavit filed 5 April 2013, Mr Kimble deposed (at [43]) to having applied superannuation funds in payment of legal costs in the proceedings. He estimated he had spent $30,000 on his former solicitors and then detailed having spent $23,106 on his current solicitors prior to 31 December 2012 and $13,200 in barrister’s fees. Those amounts total $66,306 and that is the figure that Mr Kimble includes in the schedule as the value of his superannuation interest (although he asserts it has been spent). His counsel made it clear in his oral submissions that Mr Kimble was conceding that it was appropriate to “add that figure” back and to regard it as a property interest “had” by Mr Kimble, although it clearly no longer exists.
Counsel for Ms Allenby, in his oral submissions, appeared to rely on the fact that Mr Kimble included $36,352 in his November 2012 Financial Statement as the value of his superannuation interest, combined with an answer that Mr Kimble gave in cross-examination where he had agreed that he was “pulling” money out of his superannuation interest to meet legal fees as he was incurring them when the proposition that he had taken $40,000 from the fund to meet legal fees was put to him.
Frankly, with respect, I was left simply not understanding how that overcame his May 2013 affidavit evidence that he had spent around $66,306 on legal fees along with the inference, available to be drawn from the balance of the oral evidence he gave about using the money in his superannuation fund to buy shares that had gone down “about $20,000 - $30,000” and the absence of any specific cross-examination as to the current balance, if any, of the fund, that there is no cash amount left in Mr Kimble’s superannuation fund.
For Mr Kimble, it was submitted that justice and equity does not require any property adjustment orders to be made in this case and that each of the parties could safely walk away from their former de facto relationship retaining their respective interests in property without there being any injustice. For Ms Allenby it was submitted that justice and equity demands there be a property adjustment order made and her case was that it should be one that requires Mr Kimble to pay her the sum of $200,000.
In Stanford at [42], the plurality of the High Court said that the “just and equitable requirement is readily satisfied” in many cases where an application is made for a property settlement order. Their Honours observed that where, as the result of a choice made by one or both of the parties, the couple are no longer living together, the just and equitable requirement may be readily satisfied because there is no longer any common use of property by the couple where they have voluntarily separated. The Court observed that with such voluntary severance of the mutuality of the relationship goes “the express and implicit assumptions that underpinned the existing property arrangements” as well as the assumption that any adjustment to those interests could be effected consensually as needed or desired, thus making it just and equitable that the Court make a property settlement order.
Although that was said by their Honours in the context of an application for a property settlement order in a case involving a married couple, I consider that their Honours’ observations apply similarly to the consideration of whether it is just and equitable to make property adjustment orders between parties to a de facto relationship after it has broken down.
In this case, the de facto relationship has ended voluntarily and, accordingly, having regard to those observations of their Honours, it would appear to be just and equitable to make property adjustment orders between the parties. Of course, the terms of such orders are to be determined by considering the factual circumstances that must be considered pursuant to s 90SM(4). It is entirely possible, at least in my view, that such consideration may nevertheless result in the Court determining no adjustment orders are appropriate and that such an outcome (where no adjustment orders are made) is, in itself, just and equitable. However, I certainly do not determine at this point that no property adjustment order should be made as between these parties.
The Full Court of this Court said in Bevan and Bevan [2013] FamCAFC 116 that the use of the “four step” approach that has been described in the past as “the preferred approach to the determination of an application brought pursuant to s 79 of the Family Law Act”[5] remains, post Stanford, a useful approach to “illuminate the path” to determining the appropriate orders to make once it has been determined that it is just and equitable to make orders. I consider that the same approach may be used to “illuminate the path” to determining appropriate orders in property adjustment proceedings between couples to de facto relationships that have broken down.
[5]See Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143 at [39] and Coghlan and Coghlan (2005) FLC 93-220 at [22].
Those four inter-related steps of that “preferred approach” include, firstly, making findings as to the identity and value of the property, liabilities and superannuation interests of the parties at the date of the hearing; secondly, identifying and assessing the contributions of the parties within the meaning of subsections (a), (b) and (c) of s 90SM(4) and determining the contributions based entitlements of the parties expressed as a percentage of the net value of the property of the parties; thirdly, identifying and assessing the relevant matters referred to in subsections (d), (e), (f) and (g) of s 90SM(4) – including, because of s 90SM(4)(e), the matters that are relevant pursuant to s 90SF(3) – and determining the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step 2; and fourthly, considering the effect of those findings and determinations and resolving what order is just and equitable in all the circumstances.
Determining the identity and value of the property, liabilities and superannuation interests of the parties
As I have already observed, the parties were in substantial agreement about these matters. As to the matters they disagreed about, I have found that Mr Kimble had an interest in shares and the value to be attributed to them was $3,799. I have found that Mr Kimble also owned a Camprite Trailer but that its value was within a range of $12,000 to $25,600 as neither party adduced any expert opinion evidence or any other evidence upon which the Court could safely rely to determine its actual value. I will return to this issue later as the submission of counsel for Ms Allenby was that in the absence of valuation evidence the trailer should be ordered to be sold.
Mr Kimble also gave evidence that he had a bank overdraft liability of $15,722 at the time of the trial. For Ms Allenby it was argued that the debt should be ignored and not included in determining the net property interests of the parties as Mr Kimble could easily have extinguished that post-separation with money that he had spent on overseas and domestic holidays since separation, therefore making it unreasonable to include it as a liability reducing the net property interests of the parties against which adjustment orders are being considered.
With respect, I do not accept that submission in this particular case. The income that Mr Kimble earned post-separation from his own personal exertion was his to apply as he determined appropriate. His overdraft liability to the bank is a debt that existed at time of the trial and is to be considered. There is no evidence of what the extent of the debt was at the time the parties separated from which I can make a finding that it is otherwise unjust to take this liability into account.
Counsel for Mr Kimble conceded that an amount of $66,306 should be notionally considered or “added back” to the ‘pool’ of net property and superannuation interests in respect of superannuation that Mr Kimble had drawn on and used to pay for legal fees in these proceedings post-separation. Having heard that concession, I consider it is appropriate to notionally include that amount in that ‘pool’.
Accordingly, I find that Mr Kimble has interests in property valued at $1,690,249 plus a Camprite trailer worth somewhere from $12,000 to $25,600. He has an overdraft liability of $15,722 and has spent $66,306 on legal fees that can be notionally treated as property that he has used and solely had the benefit of. On the other hand, Ms Allenby has interests in property and superannuation valued at $611,700 and a liability of $445,700, being her half share of a mortgage debt.
Consideration of the Parties’ Contributions
The parties met in 1999 and entered into a relationship sometime in that year. This relationship continued for around ten years, up until the middle of 2009. When their relationship commenced, Mr Kimble was about 58 and Ms Allenby was 46. They each had children from previous relationships. Ms Allenby lived in a house with her young adult children. Mr Kimble’s children were completely independent of him.
At that time, Ms Allenby was employed as a receptionist. Mr Kimble was a contract tradesperson.
When they commenced their relationship, each owned property.
Mr Kimble owned:
(i)The real property in which he lived in Town J, Queensland;
(ii)A commercial shed in Suburb Suburb K, Victoria;
(iii)A commercial property in Town J;
(iv)A block of land at Town L, Queensland;
(v)Two motor cars;
(vi)Furniture in his home;
(vii)About $10,000 worth of shares; and
(viii)Superannuation.
Ms Allenby owned:
(i)The real property in which she lived at Suburb O (very close to Town J), Queensland;
(ii)Furniture in her home; and
(iii)A motor car.
Soon after the parties commenced their relationship, Ms Allenby was diagnosed with breast cancer. That illness forced her to give up her employment as a receptionist and whilst recovering from treatment she received for that illness, she went to live with Mr Kimble at his home for a time. He principally cared for her there for several weeks. When she was sufficiently recovered, Ms Allenby moved back to her own home where her children, old enough by then to look after themselves in her absence, had remained.
However, having given up her employment, Ms Allenby could not afford to keep her home. Shortly thereafter, she sold the home realising about $20,000 on the sale. She and her children then rented premises elsewhere that she obtained through the Queensland Housing Department.
Ms Allenby continued to live in that home until the middle of 2004 when she moved in to live with Mr Kimble in his home. Between 1999 and 2004 though, Ms Allenby and Mr Kimble spent a lot of time in each other’s company, including overnights together, mostly in Mr Kimble’s home so they would have privacy, away from Ms Allenby’s adult children.
In or about late 2000, Mr Kimble sold the commercial property he owned in Town J. Later, in or about July 2001, using money that he had obtained from the sale of that property, he bought another commercial property at Suburb Q, Queensland for $82,500. He still owns that property.
In the early part of 2001, Mr Kimble spent several months in Melbourne doing some renovations for his daughter on her house.
In or about August 2001, Mr Kimble sold his Town J home and then bought two residential properties, one at Property A, Suburb M for $455,000 and one at Property N, Suburb M for $179,000. He lived in a share house situation in Suburb M whilst tenants occupied Property A before he moved into it in late 2002.
In or about February 2003, Mr Kimble purchased another commercial property at Suburb Q for $72,000. He still owns that property.
Ms Allenby’s inheritance and “issue estoppel”
In or about December 2003, Ms Allenby received an inheritance from the estate of her late father who had passed away in New Zealand. She received about $108,000 New Zealand dollars after repaying about $40,000 New Zealand dollars to the estate for a loan that she had borrowed from her father before he died.
Murphy J in his reasons for judgment stated that Ms Allenby had used the money she received from her father’s estate to discharge indebtedness and by way of gifts to her children. His Honour said “none was given to Mr [Kimble] nor used for any of his purposes” and that it was used “for purposes entirely her own (including upon her children) without reference to [Mr Kimble]”. His Honour observed that Ms Allenby and Mr Kimble never at any time held a joint bank account, nor comingled their finances and that they never owned any real property or chattels together.
In her affidavit filed 22 October 2012, nearly three months after Murphy J’s reasons for judgment were delivered, Ms Allenby deposed to spending her inheritance for the couple’s “mutual benefit, including household effects (including linen, crockery and appliances), garden pots, plants and herbs, furnishings, motor vehicle, good wines, organic meat and groceries, trips, entertainment and similar.”
At the end of the trial before me, counsel for Mr Kimble submitted that Ms Allenby is bound by ‘issue estoppel’ in respect of the findings of Murphy J and, not having appealed Murphy J’s findings of fact, cannot advance a case before me that is different to that which was found by Murphy J.
The words of Dixon J in the High Court’s in Blair & Ors v Curran & Ors (1939) 62 CLR 464 at p 531 are often cited as a good description of the principle of issue estoppel. His Honour said:
A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies.
His Honour went on in that same decision, at p 533, to observe that:
The difficulty in the actual application of these conceptions is to distinguish the matters fundamental or cardinal to the prior decision or judgment, decree or order or necessarily involved in it as its legal justification or foundation from matters which even though actually raised and decided as being in the circumstances of the case the determining considerations, yet are not in point of law the essential foundation or groundwork of the judgment, decree or order.
Furthermore, in Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334,[6] the High Court held that where a determination of an issue has been made in an interlocutory proceeding, the determination binds the parties for the remainder of the proceedings. In the joint judgment of Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ, the following passage from the UK case Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630[7] was cited:
Where the issue separately determined is not decisive of the suit, the judgment upon that issue is an interlocutory judgment and the suit continues… They cannot subsequently in the same suit advance argument or adduce further evidence directed to showing that the issue was wrongly determined. Their only remedy is by way of appeal from the interlocutory judgment and, where appropriate, an application to the appellate court to adduce further evidence.
[6] at [57].
[7] at 642.
In considering the submission of counsel for Mr Kimble, I consider two matters to be critical. One is whether Murphy J’s findings of fact on the point were fundamental or cardinal to his declaration in respect of the jurisdictional facts. The other is whether or not Ms Allenby is actually advancing a factual case different from that found by Murphy J in any event.
As to the first of those, his Honour was determining, as a matter of jurisdictional fact, whether the parties were in a “de facto relationship” as that term is defined in the FLA. The relevant legislative provision (s 4AA(2)) provides the matters the Court may consider in “working out” if persons had a relationship as a couple “living together on a genuine domestic basis”; ie if they were in a de facto relationship. Those matters include “the degree of financial dependence or interdependence, and any arrangements for financial support, between them.”
I am satisfied that Murphy J’s findings of fact as to the use by Ms Allenby of the inheritance she received were made as part of the process of determining whether the parties were in a de facto relationship. Although his Honour’s findings of fact on this issue of the use of the inheritance could not be said to actually found the declaration that the parties were in a de facto relationship, the consideration of those particular facts was a significant and fundamental part of the process of determination of that jurisdictional fact in issue in the proceedings. I am satisfied that issue estoppel applies and, accordingly, I accept the submission that no fact contrary to the findings of Murphy J on the point can now be raised by Ms Allenby.
As to the second issue, whether Ms Allenby is actually advancing a factual case different from that found by Murphy J in any event, I am satisfied that she is. His Honour found that she used the inheritance to “discharge indebtedness and by way of gifts to her children” and that none was “used for any of [Mr Kimble’s] purposes”. Ms Allenby is now asserting that she did use some of that money on things other than discharging indebtedness and gifts to her children – things that did benefit Mr Kimble. I am satisfied that the principle of “issue estoppel” prevents her from now raising those different assertions in this case. I am unable to find that Ms Allenby contributed the inheritance she received, or any part of it, to the use or benefit of Mr Kimble.
Other matters of contribution
In or about June 2004, Ms Allenby moved in to live with Mr Kimble at his Property A in Suburb M. As Murphy J found, they thereafter shared the master bedroom. Although his Honour did not declare or make a finding as to the actual commencement of the de facto relationship, I am satisfied that it actually reached the point where it met the definition of a de facto relationship at the point in time when Ms Allenby moved into Mr Kimble’s Property A to live there with him rather than just staying over for several nights per week. I am satisfied that was effectively conceded by Ms Allenby, as counsel who appeared for her continually referred to a de facto relationship of five years during his oral submissions.
Not long after Ms Allenby moved into Mr Kimble’s home, he renovated a room in that home specifically for Ms Allenby to conduct her own business from. She used that room to provide personal care services to customers and to sell goods on commission. Mr Kimble spent about $10,000 on the renovation of the home to provide that room for Ms Allenby.
In or about October 2005, Mr Kimble sold one of his investment properties after having renovated it. By that time, Ms Allenby was engaged in the property industry. The property was marketed and sold by her. She earned commission on that sale.
In or about October 2006, Mr Kimble purchased another property in Town J for $310,000. That property was sold via Ms Allenby. She received commission on that sale to Mr Kimble as well. Mr Kimble then renovated that property, spending about $60,000 on the cost of the work. He let Ms Allenby’s son live in that property rent-free for about six weeks. He sold the property in or about June 2007 for $392,000. Again, he sold the property via Ms Allenby and she again received commission on its sale.
In or about September 2007, Ms Allenby moved out of Mr Kimble’s home for several weeks. Murphy J found that this was not because of a cessation of the de facto relationship but because Ms Allenby had leased a property to secure a sale to a purchaser who wanted to buy it with a lease in place.
At around the time Ms Allenby and Mr Kimble separated, Ms Allenby acquired a half legal interest in a property in Town J. The property was purchased by a third party, Mr R, who Ms Allenby had known for several years. The entire purchase price for this property was sourced from funds contributed by Mr R. The old house on the property was removed and Mr R and Ms Allenby built a new home on the property using joint borrowings secured by mortgage over the property. They have been living in the property since with Mr R paying the mortgage repayments. Mr R also contributes significantly to the financial support of Ms Allenby.
More than a year after Ms Allenby and Mr Kimble separated Mr Kimble, through his self-managed superannuation fund, purchased another commercial unit in Suburb Q. He still owns the property through that fund. Mr Kimble had rolled his superannuation entitlements out of the industry superannuation fund he had been a member of into his own fund when he had turned 65. It is not clear on the evidence exactly how that has been treated. I do not consider it matters in respect of these proceedings.
Having regard to this history, I am satisfied that neither party made direct financial contributions to the acquisition of any property that is owned by the other party. I am satisfied that neither party argues otherwise.
Ms Allenby accepts that Mr Kimble paid for and took her on overseas holidays – to Indonesia in 1999, Europe in 2000 and New Zealand in 2001 (where they stayed with Ms Allenby’s relatives at times).
Ms Allenby’s case in respect of contributions is that she made significant non-financial and homemaking contributions throughout the 10 years of their relationship, albeit a relationship that I am satisfied was only a de facto relationship for the last 5 years of that period. That said, I am quite satisfied that contributions made prior to the actual time at which the relationship became a de facto relationship for the purposes of this Court’s jurisdiction are able to be considered and weighed in the determination of appropriate property adjustment orders that are just and equitable.[8]
[8] Jones v Gresh (2001) DFC 95-243; Griffiths v Brodigan (1996) DFC 95-177.
Ms Allenby asserts that she was Mr Kimble’s “personal assistant, real estate advisor, interior decorator, colour co-ordinator, rental administrator, computer operator/word processor and clerk”.
Ms Allenby asserts that from the commencement of their relationship, when they stayed together she would make breakfast for Mr Kimble before he went off to work. She asserts that she would put on their washing, clean up after breakfast, make the bed and water the garden on those mornings. She asserts she did 80 per cent of their shopping for groceries and household supplies by herself and otherwise they did it together. She asserts that she would prepare a fresh, hot meal for Mr Kimble at night.
Ms Allenby asserts she used to be Mr Kimble’s driver. She asserts they used her motor car for social and recreational purposes, not Mr Kimble’s work car and she paid for all the expenses associated with running the car as well as doing the driving. Ms Allenby also asserts that she regularly drove Mr Kimble to the Brisbane airport or the Town J airport when he was required to travel with his work and would drive there to pick him up and take him home on his return.
Ms Allenby asserts that she used to go to Mr Kimble’s home (before she began living there with him) and clean his pool, rake up and sweep up the leaves around the yard, take out his bins, collect his mail, bank his cheques, type up his work hours for his invoices and download information about his share investments for him. She asserts that she did Mr Kimble’s washing and ironing for him. She asserts she typed letters and tax invoices for him, did his filing, paid his bills, cleaned out his fridge and pantry and re-stocked them for him.
Ms Allenby says that she assisted him in the interior decoration of his Property A when he renovated it. She asserts that she was responsible for selling the old kitchen that he removed during the renovations and for designing the new kitchen that was installed and sourcing the materials used. She asserts that she was responsible for removing slate flooring from one of the rooms during the renovations.
Ms Allenby asserts that she advised Mr Kimble on the purchase of the Suburb M investment property, cleaned it and readied it for occupation by tenants, cleaned and removed rubbish after tenants moved out and collected rent from tenants if they were in arrears. She asserts that she was also involved in the re-decoration of the Town J residential property when it was purchased by Mr Kimble in 2006.
Ms Allenby asserts that she did gardening at all the properties during the course of their relationship, and says that she spent an average of 30 minutes each day at this task as well as being the person who engaged contractors to do particular tasks when necessary.
Ms Allenby asserts that she managed Mr Kimble’s investment properties, dealing with phone calls, all correspondence, tenants, trades people, advertising and similar matters.
Ms Allenby says that she travelled away with Mr Kimble and stayed with him on several occasions when he had to work away from home, keeping him company and looking after him.
For his part, Mr Kimble actually disputes much of what Ms Allenby said were her non-financial contributions in respect of his properties and her contributions to the welfare of their relationship. He begins by asserting that between 2004 and 2009 when they both lived in Property A he was away from home working for a lot of the time – 15 out of 26 weeks in the second half of 2004, 23 out of 52 weeks in 2005, 20 out of 52 weeks in 2006, 17 out of 52 weeks in 2007, 25 out of 52 weeks in 2008 and 11 out of 13 weeks in the first 3 months of 2009. His case is that for most of those weeks, Ms Allenby was at home by herself, only having to look after herself. Of course, that assertion overlooks her evidence that she was maintaining his properties and administering his affairs at home as she says she was doing even whilst he was away.
Mr Kimble asserts that they each purchased their own food, even during the time they lived together at Property A. He says they cooked and ate separately. He asserts and it is not disputed that a housekeeper was engaged for about 3 years of the 5 years that Ms Allenby lived in his house to clean the house. He asserts that he did his own washing, ironing, cooking and cleaning and that he did “all the gardening”. Mr Kimble asserts that he does not recall any time that either of them undertook household tasks for the benefit of the other.
Mr Kimble asserts that whenever they went out for a meal or for other entertainment, he would always pay, allowing Ms Allenby to preserve her own funds.
Mr Kimble accepts that he and Ms Allenby certainly discussed interior decoration and colour co-ordination. He asserts that he welcomed her input but he did not “seek it” and he says it was no more than his. He asserts that Ms Allenby did not administer or manage his rental properties nor do his typing or record keeping for him. He asserts she did not have a key to his mail box and did not open his mail. He denies that Ms Allenby made him breakfast and says he made his own. He denies that Ms Allenby cooked for him. He admits that Ms Allenby purchased most of the groceries but says that was because he was away a lot and she was purchasing principally for her own consumption. Mr Kimble says that when they shopped together he invariably paid for the groceries that were purchased.
Mr Kimble denies that Ms Allenby was his driver or that they used her motor car most of the time. He asserts that Ms Allenby often used his, particularly for her property industry work as her car was only a two door convertible. He asserts that the company to which he contracted his services arranged transportation to the airports for him when he was travelling away.
Mr Kimble denies that Ms Allenby cleaned his pool, asserting he paid a contractor to do that regularly. He asserts Property A did not even have a pool. He denies that she watered his plants and gardens in the years before she moved into Property A and denies that she spent the time in the garden that she asserts she did. He denies that Ms Allenby designed the kitchen at Property A and says it is his area of expertise to do that sort of thing, so he did it. He does accept she chose the bench top.
Mr Kimble agrees that Ms Allenby went to visit him a few times when he was working away from home, but generally she would visit friends and family in those places whilst there.
As can be seen, Mr Kimble and Ms Allenby did not agree on very much at all about the nature of Ms Allenby’s non-financial and homemaking contributions. However, in answer to Mr Kimble’s evidence that she did not type for him, Ms Allenby adduced and tendered into evidence copies of letters and invoices that she said were recovered from the hard drive of her lap top computer that were clearly written for Mr Kimble between 2003 and 2007. I accept they were typed by her for him. There were only 15 such documents tendered though, representing just under 4 per year for that period. Ms Allenby adduced 3 copies of BAS statements which I accept had been completed by her for Mr Kimble as well. This evidence leads me to be satisfied that Mr Kimble’s stock denials of Ms Allenby’s assertions cannot be accepted as truthful but also that Ms Allenby’s assertions of the work she did are, on the balance of probabilities, somewhat exaggerated and overstated, although truthful in basic substance.
It is hardly surprising, in my view, that in circumstances where Mr Kimble denied there was ever a de facto relationship between him and Ms Allenby that he would, after a de facto relationship was declared to have existed, continue to deny and downplay her non-financial contributions to that relationship, or that she would overstate them in her efforts to bolster her case for property adjustment. I do not consider that either party impressed with much candour, but I do find that Ms Allenby did do many of the things that she asserts she did, just not to the quantitative degree that she asserts.
During the 5 years of cohabitation in the one house, Ms Allenby’s average income was just under $50,000 per year. Mr Kimble’s average income for the same period was approximately $62,000 per year. As has already been observed, they each retained their own income and used it, principally for their own purposes. However, I do accept that each did, from time to time, pay for expenses that were incurred for both of them. In particular, Mr Kimble paid for the costs associated with his ownership of the house they lived in. Ms Allenby paid for the use of the landline telephone at the home, most of the use of which, however, related to her business or work. Ms Allenby paid for the cleaner who came and cleaned the home for 3 years during their 5 year cohabitation. Ms Allenby did regularly pay for groceries that were bought for the home, which I accept were also consumed by Mr Kimble when he was there with her.
I do accept that Ms Allenby assisted Mr Kimble with some aspects of the renovations and decorating of his Property A, as well as cleaning and maintenance of his other investment properties. I do not accept that she had full responsibility for all of the matters associated with the management of those properties that she asserts she did, but rather that she did make some non-financial contributions, principally working alongside Mr Kimble and assisting him where she could and doing things for him in respect of these properties when he was away.
I do not accept Mr Kimble’s evidence that they each shopped, cooked, cleaned up, washed and ironed for themselves during the years they lived together or during the years they spent time together before they commenced living in the same house. I accept that Ms Allenby did a lot of these household tasks not just for herself but also for Mr Kimble during all of those years.
Clearly, Mr Kimble made his own significant contributions to the welfare of the relationship. Paying for their overseas holidays in the early years of their relationship, caring for Ms Allenby when she was recovering from cancer, renovating his own home so as to include a room specially fitted for Ms Allenby to run a business from so as to be able to generate her own income and providing his home for them to live in as the residential base of their relationship are all such contributions. In addition, I am satisfied that he did undertake household tasks when they were living together and he was at home, such as mowing, gardening, taking out rubbish bins, helping with doing the shopping and other tasks around the kitchen.
Non-financial contributions of parties to a marriage or a de facto relationship, particularly the contributions that are made to the welfare of the parties’ relationship must be given appropriate weight and not simply overlooked against a backdrop of overwhelming direct financial contributions by one party. However, the parties in this case did not have children together. Ms Allenby has not given up a career to care for children of the relationship or even to make a home for herself and Mr Kimble. In the circumstances of this case, I cannot find that she has made any significant direct or indirect non-financial contributions to the acquisition by Mr Kimble of all of the property that he has interests in. In the same vein though, I am satisfied that Mr Kimble has made no direct or indirect contributions, either financial or non-financial, to the acquisition, conservation or improvement by Ms Allenby of her interests in property.
Considering all of the evidence, I am quite satisfied that each party made contributions to the welfare of their relationship but that Ms Allenby’s contributions in this regard, on balance, marginally exceeded Mr Kimble’s over the history of their relationship. I am also satisfied that Ms Allenby did make non-financial contributions to the conservation and improvement of property of Mr Kimble that were not counterbalanced by any that he made to property of hers.
Accordingly, I am of the view that consideration of all of the contributions of the parties must result in property adjustment orders based on Ms Allenby retaining the interests in property that she has and receiving a cash payment from Mr Kimble whilst he retains all of his property interests. Her marginally greater contributions to the welfare of the relationship and her other contributions to the maintenance and improvement of Mr Kimble’s properties over the 10 years of their relationship which included 5 years as a de facto relationship (as that term is defined in the FLA) demand as much, at least in my determination, in order to achieve orders that are considered appropriate and just and equitable.
The ‘pool’ of property interests, liabilities, superannuation interests and the amount notionally included representing the legal fees that Mr Kimble paid from his own resources before the trial totals $1,907,833 without including the trailer that Mr Kimble owns that is worth in the range of $12,000 to $25,600.
As I made quite clear during the course of hearing oral submissions at the end of the trial, I do not consider it appropriate or just and equitable in the circumstances of this case to make an order that Mr Kimble should have to sell his Camprite Trailer where Ms Allenby does not want an order that it be transferred to her, simply because the parties could not agree on its value and did not adduce expert evidence of its value either jointly or singularly. Its existence as property and Mr Kimble’s ownership of it are appropriately taken into account in the determination of the appropriate orders to be made with consideration of it being valued within a range of $12,000 to $25,600.
Ms Allenby’s own net property and superannuation interests have a total net value of $166,000. Receipt of a payment of a further $100,000 from Mr Kimble would take her property interests then to a value of $266,000. That equates to a figure of around 14 per cent of the total value of the ‘pool’ just referred to, including with the trailer in it, whatever its precise value. I consider that to be an appropriate amount for Ms Allenby to receive over and above her own property interests to reflect the contributions findings I have made.
Is any further adjustment justified?
Mr Kimble is nearly 73 years of age. Ms Allenby is 60 years of age. There was no evidence adduced by either of them that enables me to find that either is in anything other than good health.
Mr Kimble, at time of trial, described himself as semi-retired, still working occasionally in his trade. He had also re-partnered and was again living in a de facto relationship with a woman who had come to Australia from Europe to live with him. His partner had property interests of her own and some earning capacity.
Ms Allenby, at time of trial was no longer working in the property industry, although I am satisfied she could be if she wished to. She was living in the jointly owned home with Mr R but she asserted she was not in a de facto relationship with him. He was, however, significantly contributing to her financial support on a weekly basis in addition to paying the mortgage repayments on the property.
Having regard to these matters and all the other matters considered pursuant to s 90SM(4)(d) to (g), including all of the other matters set out in s 90SF(3) in so far as they are relevant, I am not persuaded that any further adjustment beyond an order that Mr Kimble pay Ms Allenby $100,000 is necessary in order to arrive at appropriate orders that are just and equitable. I will not make any.
I will order that Mr Kimble pay Ms Allenby $100,000 within two calendar months of the date of the judgment and that each otherwise retain all of their interests in property and superannuation.
I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 7 March 2014.
Associate:
Date: 7 March 2014
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